New South Wales District Court CITATION: Mills v Bale & Anor [2010] NSWDC 162 HEARING DATE(S): 8, 9, 10, 11 and 24 September 2009 JUDGMENT DATE: 4 August 2010 JURISDICTION: Civil JUDGMENT OF: Levy SC DCJ 1. Verdict and judgment for the plaintiff in the sum of $703,149.28; DECISION: 2. The defendants are 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: TORTS – legal practitioners – negligence – events occurring prior to arbitration hearing leading to plaintiff compromising a claim for damages for personal injury against employer for a workplace injury – credit-based findings – whether plaintiff established alleged misleading representation by his solicitor – whether alleged conduct of solicitor amounted to a breach of the duty of care owed – whether statements by solicitor amounted to misleading and deceptive conduct within the meaning of s 42 of the Fair Trading Act 1987 – whether the alleged representation induced the plaintiff to compromise his claim – relevance of solicitor's evidence of his "usual practice" – relevance of solicitor's evidence of the "usual practice" of the barrister – absence of file notes by solicitor who claimed no recollection of events - - DAMAGES – measure of damages where plaintiff would otherwise have had his claim determined by the court in 2003 – considerations for assessment of damages and required adjustments to assessment Civil Liability Act 2002 District Court Rules, Pt 9 r 27A LEGISLATION CITED: Fair Trading Act 1987, s 42 Legal Profession Act 1987, s 198J Trade Practices Act, s 52 Workers' Compensation Act 1987 Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538 Bennett v Minister of Community Welfare [1992] HCA 27; (1993) 176 CLR 40 Bresatz v Przibilla [1962] HCA 54; (1962) 108 CLR 541 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA; (1990) 169 CLR 594 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Council of the City of Liverpool v Turano [2008] NSWCA 270 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA12; (2005) 223 CLR 1 Erwin v Iveco Trucks Australia Ltd [2010] NSWCA 113 Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15; (2007) 234 ALR 131 Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351 Kars v Kars [1996] HCA 37; (1996) 187 CLR 354 King Pty Ltd v Besser [2002] VSC 354 Ku-ring-gai Co-operative Building Society (No 12) Ltd, Re (1978) 22 ALR 621 Larson v Commissioner for Police [2004] NSWCA 126 Leotta v Public Transport Commission of NSW (1976) 9 ALR 437 Little v Law Institute of Victoria (No 3) [1990] VR 257 CASES CITED: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 Majkic v Bonnano [2008] NSWCA 253 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 30 Malec v Hutton [1990] HCA 20; (1990) 169 CLR 638 March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 50 Mason v Demasi [2009] NSWCA 227 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 Parry v Cleaver [1969] UKHL 2 ; [1970] AC 1 Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642 Roads and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd [2009] NSWCA 263 Shaw v Thomas [2010] NSWCA 169 State of Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1996-1997) 189 CLR 146 State of NSW v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 Stockland (Constructors) Pty Ltd v Retail Design Group (International) Pty Ltd [2003] NSWCA 84 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442 Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 TEXTS CITED: Annual Review, 2002; District Court of New South Wales Annual Review, Supreme Court of New South Wales, 31 December 1992 PARTIES: Howard John Mills (Plaintiff) Peter Earle Bale & George Paul Boshev trading as Bale Boshev Lawyers (Defendants) FILE NUMBER(S): 1839 of 2009; 2009/334871 COUNSEL: Mr B McClintock SC with Mr M Lawson (Plaintiff) Mr M Dicker (Defendants) SOLICITORS: Thomas Mitchell (Plaintiff) Yeldham Price O'Brien Lusk (Defendants) JUDGMENT Table of Contents A. INTRODUCTION Nature of the case [1] – [7] Pivotal issue [8] Background [9] – [21] Procedural history [22] Issues calling for decision [23] – [28] Summary of findings [30] – [33] B. EVIDENCE REVIEW Overview of documentary evidence [35] – [40] Exhibit "A" [36] – [37] Exhibit "1" [38] Other exhibits [39] – [40] Overview of oral evidence [41] – [236] The plaintiff, Mr Howard Mills [43] – [103] Mr Mathew Tremain [104] – [107] Mr Simon Tremain [108] – [110] Mr Gregory Schipp [111] – [170] Mr Peter Kirby [171] – [216] Mr Alan Arnold [217] – [236] C. FINDINGS ON ISSUES CALLING FOR DECISION Consideration of Issue 1 – Credibility of testimony [238] – [338] Consideration of Issue 2 – Claimed representation and its characterisation [339] – [444] Consideration of Issue 3 – Effect of claimed representation [445] – [485] Consideration of Issue 4 – Probable events but for asserted representation [486] – [496] Consideration of Issue 5 – Employer's duty of care [497] Consideration of Issue 6 – Breach of duty of care by employer [498] – [501] Consideration of Issue 7 – Alleged contributory negligence of plaintiff [502] Consideration of Issue 8 – Plaintiff's injuries and disabilities [503] – [671] Consideration of Issue 9 – Probable damages award to plaintiff in 2003 [672] – [776] Consideration of Issue 10 – Assessment of damages in present proceedings [777] – [803] Consideration of Issue 11 – Interest adjustment [804] – [805] D. DISPOSITION & ORDERS Disposition [806] Orders [807] A. INTRODUCTION Nature of case 1. On 11 April 2001, the plaintiff, Howard Mills retained the defendants, Peter Bale and Paul Boshev, who are the principals of Bale Boshev, solicitors, to act for him in connection with a common law workplace injury claim for damages against his former employer in respect of injuries he sustained on 8 November 2000. The defendants assigned their employed solicitor, Gregory Schipp, of their Hamilton office, to have conduct of the plaintiff's case. ["the principal proceedings"]. On 1 August 2002 those proceedings resolved by way of a compromise settlement that was effected during settlement negotiations that took place before an arbitration hearing was due to commence on that day. 2. In these proceedings the plaintiff claims damages against his former solicitors for alleged breach of the duty of care owed to him in failing to give proper advice. He also claims breach of the implied terms of the contract of retainer that his solicitors would act in his interests. The plaintiff claims that the defendants, through their employee Mr Schipp, for whose conduct they were vicariously liable, acted in breach of s 42 of the Fair Trading Act 1987. The claim is that Mr Schipp had engaged in conduct that was misleading and deceptive in respect of representations that the plaintiff claims Mr Schipp had made to him. 3. The plaintiff claims that on 1 August 2002, in the course of obtaining instructions from him during the settlement negotiations in the principal proceedings, Mr Schipp made representations to him that were untrue, and which were therefore misleading. The plaintiff claims that in the lead-up to these events, Mr Schipp failed to exercise due skill, care and consideration in the provision of legal services and advice. The alleged representation was that the defendant in the principal proceedings had "damning" video evidence concerning the plaintiff. It was common ground between the parties to these proceedings that there was no such evidence. 4. The plaintiff claims that Mr Schipp had advised him to accept an offer of settlement of $175,000 inclusive of costs but clear of the prior worker's compensation payments, as this was the final offer made by the defendant in the principal proceedings. The plaintiff claims that in this context, Mr Schipp had told him that he "could get nothing". These events took place against the background of the plaintiff's evidence that he had earlier been advised that the monetary value of his damages claim lay in the range $350,000 to $450,000 clear of workers' compensation payments and costs. 5. The plaintiff claims that he acted in reliance of the representation and upon advice given to him by Mr Schipp. He claims this caused him to accept a compromised sum in settlement of his claim for damages for personal injury in the principal proceedings. In these proceedings, the plaintiff claims as damages, the difference between the sum that he received as a result of the compromise, and a proper sum that he claims he ought to have received, plus accrued interest. 6. Mr Schipp stated that he had no recollection of the plaintiff, the plaintiff's case or the events of the day in question. He kept no file notes of the relevant events. Mr Schipp stated that in settlement negotiations it was his "usual practice" to identify a final offer made by a defendant to his client, and to then leave it to the client as to whether or not that offer was accepted. Although he said he had no recollection of the events, he stated that he would not have raised the topic of video evidence unless it had been raised with him. 7. The defendants disputed the plaintiff's claim. They did not give any evidence but relied upon the evidence of Mr Schipp as to what was claimed to be his "usual practice" in such cases. The defendants also relied upon Mr Schipp's evidence of what he understood to have been the "usual practice" of the barrister whom he had briefed to represent the plaintiff. In submissions, on behalf of the defendants, the evidence of usual practice was characterised as "invariable usual practice". Pivotal issue 8. In his submissions, Mr M Dicker, counsel for the defendants, conceded that the plaintiff's case "all turns on his allegation that Mr Schipp had a conversation with him about video evidence" to the effect that Mr Schipp "had been told by the insurer's representatives that they had 'damning video evidence' against the plaintiff". The resolution of this pivotal issue is dependent on credit-based findings that arise in a context that also required the resolution of a number of other issues calling for decision. The issues to be decided have to be determined subject to the requirements of the Civil Liability Act 2002 ["CL Act"]. Those other issues are listed and outlined between paragraphs [24]-[28] of my judgment. My credit-based findings are set out between paragraphs [238]-[338] of my judgment. Background 9. On 1 August 2002, an arbitration hearing of the principal proceedings was scheduled to take place in a running list at Newcastle Courthouse. The principal proceedings were compromised at or shortly after 1.35pm on that day, before the arbitration hearing had commenced. Settlement discussions had apparently commenced at about 10.00am on that day, in the precincts of the courthouse. 10. The plaintiff claims that shortly before a settlement was reached, Mr Schipp had asked him to take a walk with him away from the courthouse, across the road to a place just outside a hotel located opposite the courthouse. The plaintiff claims Mr Schipp had told that him he needed to have a talk with him. 11. The plaintiff claimed he clearly recalled that in the course of these events, Mr Schipp had a conversation with him to the effect that the defendant's representatives in the principal proceedings had told him they had "damning video evidence" on the plaintiff. 12. The plaintiff recounted that this conversation was in the context of a discussion on a "stalled" offer from the defendant's representatives in the amount of $175,000 inclusive of costs but clear of workers' compensation payments. 13. The plaintiff claimed he asked Mr Schipp for advice as to what he thought he should do in the circumstances. He claimed that in response, Mr Schipp recommended to him that he take the offer, as if he did not, there was "a real chance" that he could "get nothing" from the litigation. 14. The plaintiff claimed that shortly after this conversation and in reliance on what had been represented to him by Mr Schipp, he gave instructions to compromise his claim for an amount of $175,000 inclusive of costs, but exclusive of workers' compensation payments. 15. In these proceedings, neither Mr Schipp nor the barrister whom he had briefed, nor the solicitor and the barrister who represented the defendant in the principal proceedings, had any real recollection of these events. 16. The solicitor for the defendant in the principal proceedings had kept detailed notes of the negotiations. Those notes formed the basis of his refreshed recollection given in evidence in these proceedings. 17. Neither the plaintiff, Mr Schipp nor the barrister whom he had retained to appear for the plaintiff, had notes of these events. The identified pivotal issue therefore requires the resolution of some underlying factual matters. 18. The barrister who had been briefed by Mr Schipp had limited notes which formed the basis of the advice he had given the plaintiff in a conference that was convened at about 9.00am on the morning of 1 August 2002. That conference had been convened between himself, the plaintiff and Mr Schipp to prepare for the arbitration hearing. Both he and Mr Schipp had based their evidence in these proceedings on those notes, and also upon their evidence of what would have been their "usual practice" in the assumed circumstances, in the stated absence of any actual recollection of the circumstances. 19. The issues calling for decision in this case arose in four distinct categories. These involved first, issues that concerned the credibility of testimony, secondly, the issues that arose for decision in the principal proceedings, including the likely outcome, and timing of the outcome, of the liability and damages issues that were in contest in the principal proceedings, thirdly, the issues that arose from the plaintiff's decision to settle the principal proceedings and fourthly, the issues that arose for consideration in an assessment of damages in these proceedings. Related issues arose within these categories. 20. The resolution of these matters required a review of the voluminous evidence gathered by the respective parties to each of the proceedings. The assessment of the credibility of testimony was central to the resolution of the issues in both sets of proceedings. 21. Since the central issue involves making assessments of the credibility of testimony, and given the gravity of the allegations made by the plaintiff, I have reviewed the whole of the evidence in some significant detail before making my findings on the matters calling for decision. A detailed and extensive summary of that evidence review appears between paragraphs [35] - [236] of my judgment. Procedural history 22. The procedural history of these proceedings has been that on 31 July 2008, the plaintiff filed these proceedings in the Newcastle registry of the court. The proceedings were allocated case number 246 of 2008. On 4 March 2009 the proceedings were set down for a hearing in Newcastle to commence on 28 April 2009. On 20 April 2009 that hearing date was vacated, and the venue for the hearing was changed to Sydney because the trial judge allocated to hear the case was acquainted with several of the witnesses to be called in the proceedings. The proceedings were then allocated the case number 1839 of 2009. On 5 May 2009, the trial date was fixed for 8 September 2009. The trial proceeded on 8, 9, 10, 11 and 24 September 2009. Issues calling for decision 23. The nature of the case has necessarily given rise to a multiplicity of issues. The central issue to the determination of the pivotal issue is the credibility of the testimony that was given. The remainder of the issues related to matters arising in the principal proceedings, the decision to settle the original proceedings and the determination of quantum in the present proceedings. Issues concerning the credibility of testimony 24. At the outset, the first issue concerns the credibility of testimony, formulated as follows: Issue 1 : The credibility of the testimony, and the resolution of areas of conflict in the evidence given by the plaintiff, Mr Schipp, the barrister and the opposing solicitor on the issues to do with the compromise of the principal proceedings, and the credibility of the testimony of the plaintiff and his brothers, Mr Mathew Tremain and Mr Anthony Tremain, on the underlying issues to do with liability and damages in those proceedings. My findings on this issue are set out between paragraphs [238] to [338] of these reasons; 25. In order to resolve these matters it is necessary to first consider the detail of the entire fabric of the evidence, including the issues arising in the plaintiff's damages claim in the principal proceedings, as the defendants have argued that this had a relevant impact on the credibility of the testimony of the plaintiff generally. Issues arising from the plaintiff's decision to settle the principal proceedings 26. In connection with the plaintiff's decision to settle the principal proceedings, the issues that arise for determination are: Issue 2 : Whether in fact Mr Schipp made the asserted representation to the plaintiff as claimed. My findings on this issue are set out between paragraphs [339] to [444] of these reasons; Issue 3 : Whether the claimed representation caused the plaintiff to compromise the principal proceedings. My findings on this issue are set out between paragraphs [445] to [485] of these reasons; Issue 4 : Identification of the probable course of the principal proceedings if the claimed representation had not been made to the plaintiff. My findings on this issue are set out between paragraphs [486] to [496] of these reasons; Issues concerning the principal proceedings 27. In connection with the principal proceedings, the issues that arise for determination are: Issue 5 : Whether the plaintiff's employer owed him a duty of care. My findings on this issue are set out at paragraph [497]of these reasons; Issue 6 : Whether the plaintiff's employer had relevantly breached the duty of care that was owed to the plaintiff. My findings on this issue are set out between paragraphs [498] to [501] of these reasons; Issue 7 : Whether there was contributory negligence on the plaintiff's part, and if so, to what extent. My findings on this issue are set out at paragraph [502] of these reasons; Issue 8 : The nature, extent and effect of the injuries sustained by the plaintiff. My findings on this issue are set out between paragraphs [503] to [671] of these reasons; Issue 9 : The likely components, in 2003, of a judgment assessing the plaintiff's entitlement to damages, 2003 being the probable time of a notional trial of the principal proceedings. My findings on this issue are set out between paragraphs [672] to [776] of these reasons; Issues concerning the assessment of damages in these proceedings 28. In connection with these proceedings, the issues that arise for determination are: Issue 10 : The appropriate analytical steps and adjustments required to be considered and accounted for in an assessment of damages in these proceedings, on the assumption that the plaintiff's claim was successful in the principal proceedings, and in these proceedings. My findings on this issue are set out between paragraphs [777] to [803] of these reasons; Issue 11 : The adjustment of the claim to allow for interest. My findings on this issue are set out between paragraphs [804] to [805] of these reasons. 29. In the paragraphs that follow, I set out a summary of my findings. Summary of findings 30. On issue of credibility of testimony, taking into account the credit challenges and having considered the evidence as a whole, I have found the plaintiff's evidence to be plausible, credible and persuasive. For the reasons I have given, I have preferred and accepted the specific factual evidence given by the plaintiff to the "usual practice" evidence given by Mr Schipp on the key matters that were in issue between the parties. 31. I have found that the representation that the plaintiff claimed had been made to him by Mr Schipp was in fact made to him. This was to the effect that he had told the plaintiff that the defendant's legal representatives in the principal proceedings had damning video evidence of the plaintiff's activities, which could cause the plaintiff to lose the principal proceedings and get nothing, when in fact there was no such video evidence. I have found that the representation made by Mr Schipp was a significant and material contributing cause to the plaintiff's decision to compromise the principal proceedings in a sum that was far less than he believed he had been advised his claim was worth, and for an amount that was far less than had hitherto been the plaintiff's monetary expectation from that litigation. I have found that the representation in question was untrue, and therefore amounted to misleading and deceptive conduct within the meaning of s 42 of the Fair Trading Act 1987. I have found that in the circumstances, there was a relevant breach of duty of care on the part of the defendants, who were vicariously liable for the conduct of Mr Schipp. 32. I have found that if the representation in question had not been made, the principal proceedings would most likely have gone to a trial, and would have been resolved in the plaintiff's favour without discount for alleged contributory negligence. I have found that the probable date for finalisation of the principal proceedings would have been by the end of November 2003, at which time a final judgment would most probably have been entered in the plaintiff's favour in an amount of $649,887.40, after offsetting the amount comprising the statutory defence for payments of workers' compensation payments. I have found that after adjusting this amount to reflect the amount the plaintiff had already received from the actual proceeds of the settlement on 1 August 2002, namely, $140,000 and after making a further adjustment for a discount of 15 per cent in accordance with principle, the plaintiff probably would have had a verdict entered in his favour in the sum of $412,404.29. 33. I have found that post-judgment interest variously calculated pursuant to s 100 of the Civil Procedure Act 2005, Schedule 5 of the Uniform Civil Procedure Rules 2005 and Practice Note DC (Civil) 15 assessed in the amount of $290,744.99 should apply to the verdict and should form part of the judgment in these proceedings as pre-judgment interest. That interest calculation is set out in the Appendix to this judgment. As a result, I have found that the plaintiff is entitled to a judgment in his favour in the sum of $703,149.28. B. EVIDENCE REVIEW 34. A total of 6 witnesses gave oral evidence. Voluminous documentary exhibits were also tendered. Overview of documentary evidence 35. The parties each tendered folders of records comprising claim forms, medical reports, damages documentation, and relevant portions of the file of the defendant solicitors. I will refer to the relevant parts of these documents where it becomes necessary to do so. Exhibit "A" – Plaintiff's exhibit 36. The plaintiff tendered 2 folders of materials comprising 680 pages, but paginated in the series 1-392 with some internal sub-pagination. This material was marked Exhibit "A", Volumes 1 and 2 in the proceedings. The materials comprised correspondence passing between the plaintiff's present solicitors and the defendants; a copy of the defendants' file in the principal proceedings, correspondence with the plaintiff's employer who was the defendant in the principal proceedings; exchanges of correspondence between solicitors for the respective parties in the principal proceedings; documents produced by the workers' compensation insurer, QBE; documents produced by Centrelink; copies of the plaintiff's bank statements and copies of the plaintiff's income tax returns. 37. Some, but not all of these documents were also included in the materials tendered on behalf of the defendants. The portions of the solicitors' former file and counsel's brief were not copied in a well-organised way. There was no evidence introduced to explain how those documents came to be in the order in which they were tendered. Exhibit "1" – Defendants' exhibit 38. The defendants in these proceedings tendered 2 folders of materials comprising 626 pages, but paginated in the series 1-461 with some internal sub-pagination. This material was marked Exhibit "1", Volumes 1 and 2 in the proceedings. The materials comprised: (a) A medical report dated 28 February 2009 from Dr JPH Stephen, a consultant paediatric orthopaedic spinal surgeon who examined the plaintiff on 28 January 2009 at the request of the solicitors for the present defendants. This report and the initiating letter of request are in the page range 1-14 of Exhibit "1"; (b) The pleadings and particulars in the present proceedings. These papers are in the page range 15-23 of Exhibit "1"; (c) The pleadings, particulars and terms of settlement in the principal proceedings. These papers are in the page range 24-37 of Exhibit "1"; (d) A collection of medical reports gathered from treating doctors and insurance files, totalling some 84 pages. These papers are in the page range 38-122 of Exhibit "1"; (e) The plaintiff's treating general practitioner's clinical records covering the period from 29 November 1999 to 21 January 2009. These papers are in the page range 123-144 of Exhibit "1"; (f) The plaintiff's income tax returns for the years ended 30 June 1999 to 30 June 2001. These papers are in the page range 145-161 of Exhibit "1"; (g) Centrelink records under cover of a letter dated 15 June 2009 from that organisation. These papers are in the page range 162-223 of Exhibit "1"; (h) The plaintiff's banking statements between the period 12 September 2005 to 20 April 2009. These papers are in the page range 234-236 of Exhibit "1"; (i) A list of workers' compensation payments. These papers are in the page range 237-246 of Exhibit "1"; (j) A workplace agreement dated 28 October 2000 between the plaintiff and Mathew Tremain and related correspondence with the workers' compensation insurer. These papers are in the page range 247-253 of Exhibit "1"; (k) Records from the workers' compensation insurer of Mr Tremain comprising claim forms, medical certificates and declarations. These papers are in the page range 254-301 of Exhibit "1"; (l) Copies of income tax returns of Mr Mathew Tremain for the years ended 30 June 1998 - 2006. These papers are in the page range 301A-301FI of Exhibit "1"; (m) The correspondence file of the defendants in these proceedings relating to the plaintiff's claim in the principal proceedings. These documents were in the page range 302-409 of Exhibit "1"; (n) Copies of advices from Mr Arnold, the solicitor for the defendant in the principal proceedings, to QBE covering the period 25 July 2001 to 1 August 2002. These papers are in the page range 410-461 of Exhibit "1". Other exhibits 39. The plaintiff also tendered as Exhibit "B", a factual statement setting out the circumstances of his injury. That statement was by his employer, who was his older brother. The plaintiff also tendered as Exhibit "C", the conference notes kept by his barrister in the principal proceedings. 40. The defendants in these proceedings tendered the plaintiff's employer's income tax returns for the period 1999-2006 as Exhibit "2". Overview of oral evidence 41. In the plaintiff's case, the following witnesses gave oral evidence: (a) The Plaintiff, Howard John Mills; (b) Mr Mathew Robert Tremain, a grain grower and grazier, the plaintiff's older brother who employed the plaintiff at the time of the injury in question; (c) Mr Anthony Simon Tremain, the plaintiff's younger brother, a spinologist who had taught the plaintiff in order that he become qualified as a spinologist. 42. In the case of the defendants, the following witnesses gave oral evidence: (a) Mr Gregory Schipp, a solicitor employed by the defendants. Mr Schipp had carriage of the principal proceedings on behalf of the plaintiff; (b) Mr Peter Kirby of counsel. He was the barrister briefed by the defendants to represent the plaintiff in the principal proceedings. Given my former practise as a barrister, and lest there be any doubt about the matter, I should state that before Mr Kirby gave evidence in these proceedings, I had not met him or known of his existence, as a barrister or otherwise; (c) Mr Alan John Arnold, a solicitor who was the principal of the firm Arnolds, the solicitors who were retained to act for the insurer of the defendant in the principal proceedings. Evidence of the plaintiff 43. The plaintiff gave evidence of the circumstances surrounding the settlement of the principal proceedings, as well as evidence concerning the events that led to the institution of those proceedings. 44. On behalf of the interests of the present defendants, noting that they were in the special position of being the solicitors who had previously been retained to act in the plaintiff's interests, the plaintiff was extensively cross-examined concerning matters that related to the merits of the principal proceedings. 45. That cross-examination extended to raising negative arguments suggesting the unlikely prospects for success of the principal proceedings, as well as perceived problems concerning historical matters and matters arising from the medical evidence gathered in those proceedings. This aspect of the cross-examination was somewhat ironic, because it was advanced on behalf of the solicitors who had previously been retained to not only act for the plaintiff in order to advance the merits of the former case now under critical attack in these proceedings, but also because in the principal proceedings, those solicitors had an obligation to assess the merits of those proceedings pursuant to s 198J of the Legal Profession Act 1987, as it applied to those proceedings on 1 August 2002. This included the obligation not to act in proceedings that they believed lacked reasonable prospects of success. Plaintiff's brief personal history 46. The plaintiff was born in 1957. He completed the Higher School Certificate before leaving school aged 18 years in 1975. He then commenced an apprenticeship in carpentry in conjunction with a related TAFE course. 47. The evidence disclosed that the plaintiff had unfortunately suffered a number of injuries that had preceded the injury in question. I summarise those injuries in the following paragraphs as the defendants sought to impugn the credit of the plaintiff based on the history of those injuries. 48. The first such injury involved a lacerated scrotum sustained in a motor vehicle accident some 20 to 30 years before the trial and which apparently occurred as a result of the plaintiff swerving to avoid a collision with horses appearing on a road. The plaintiff said this resulted in him driving off the road and into collision with a roadside cattle ramp, and then into a ditch. 49. The second such injury involved a collision between the plaintiff's car and a motorcycle. The plaintiff stated that he did not receive any lasting injuries in that collision. 50. The third such injury was when the plaintiff was in a vehicle that left the road and collided with a power pole. The plaintiff stated that he did not receive any injuries in that collision, apart from being upset and shaken. 51. The fourth such injury was a head injury and skull fracture the plaintiff sustained in 1977, when a roof he had been standing on collapsed. The plaintiff stated that this resulted in him having about a year off work. As a result he said that he had significant migraine headaches from which he had ultimately recovered. This injury also left him with a degree of memory impairment that he described later in his evidence. This injury occurred during the plaintiff's carpentry apprenticeship. 52. The fifth such injury was a left shoulder injury sustained by the plaintiff in 1993, which resolved after cortisone injections. The plaintiff said this was a minor injury from which he had recovered. 53. The sixth such injury was stated to be an injury in which the plaintiff was said to have injured his head, neck and his lower back in 1995. He said he could not recall the incident nor could he recall for how long he had experienced pain from that injury. This was not a matter the plaintiff had concealed. It was a matter that he had included in his letter to his solicitors dated 17 February 2002 : Exhibit "1" pp 367-368. 54. The plaintiff stated that after he had recovered from his 1977 head injury, he went back to work on his parents' farm. Over a number of years that ensued, he married and occasionally left the farm for other small jobs, and moved with his wife's work as a schoolteacher. He worked on the farm again for about 10 years until about approximately 1987, when he obtained a position with an insurance agency in Moree, for approximately 2 or 3 years from 1987. That position was obtained through the plaintiff's then brother-in-law, who was the state manager of an insurance company. 55. The plaintiff stated that he left the insurance agency work in order to set up his own business operating a pizza restaurant. He had been stimulated to do so from his contact with an insurance client who also operated such a business, and who convinced him that such an enterprise was a good business venture worthy of pursuit. The plaintiff stated that he did so with the result that the business proved to be successful. He said that he later sold that business in order to move on, and to try and improve his situation. 56. The plaintiff stated that he moved to Roma in Queensland, and to Inverell, where he also operated pizza businesses. He stated that he was earning "good money" in these endeavours. He said that for a time he also ran a family owned hotel in Roma in order to prepare it for sale. He said that by 1995 he obtained employment as a manager in a Pizza Hut restaurant for about a year. He said he did this in order to improve his management skills or training, to assist him in furthering his ambitions in the pizza industry. 57. The plaintiff described that at about that time, he had something of a personal crisis in his life and he decided to seek to re-educate himself at university to become a psychologist, as there were changes afoot in the pizza industry, and these caused him to re-evaluate his options. In this regard, the plaintiff said he had undertaken the basic preliminary training, and was accepted into university for what looked to him to be 10 years of part-time study. The plaintiff stated it was at that stage that his younger brother Anthony Tremain offered for him to take up training in the field of spinology, an offshoot of the practise of chiropractic. He said he took up this offer, as he had been impressed by the success of his brother in that endeavour. He said he had applied himself and obtained his certification in 1 year. 58. The plaintiff stated that after he had completed his training in spinology, he moved to the Newcastle area at some stage in 1999. He said that in doing so, he decided not to take up an offer of a teaching position with his brother at the spinology college, as he preferred to set up his own spinology practice. He said that he now could not recall whether he started his practice immediately, or whether "that came down the track a little bit". He said that he thought he had started his spinology practice very early on after his move to Newcastle. 59. The plaintiff stated that he was just getting started in his "little home practice" in late 1999 and into 2000, when in the middle of 2000 he moved to an address in Lake Fair. He said that by the time he went to work for his older brother Mr Mathew Tremain, he had already started his spinology practice in the middle of 2000, and had been working in that practice for some months. At the hearing, the plaintiff said he could no longer recall how many hours per week he had been working in his spinology practice. He said that by June or July of 2000, word had got about, and his spinology practice had started to grow. He said he could not exactly recall what income he had been earning by September/October 2000. 60. The plaintiff said that in about October 2000, he had responded to a call to help his brother Mathew on the farm to provide him with assistance in gathering the wheat harvest. It was in the course of providing that assistance that he sustained the injuries in question in these proceedings. The plaintiff said that at this time, he had separated from his wife and he saw an opportunity for employment in the form of an offer by his brother Mathew, who had a very big wheat growing operation. He said he was uncertain as to whether, at that time, his spinology practice was going to work out for him. He said he saw a real opportunity to stay with his brother Mathew, and he "saw that as an opportunity of being able to look through the door of opportunity". He said he had grown up on a farm working long hours, and it appeared that the prospect of doing so again was no disincentive for him. 61. As to the opportunity itself, the plaintiff noted that on the farm, there were 2 harvests per year. He said his brother needed someone reliable as part of the team running that operation. As evidence in support of such a job opportunity, the plaintiff described a number of farming tasks that required year round attention, with varying degrees of intensity. Circumstances of injury 62. The plaintiff described how, in order to help his brother Mathew Tremain to manage a wheat harvest, on 28 October 2000, he signed an agreement with his brother to govern the employment relationship that arose pursuant to that arrangement. It was clear from the evidence that what was envisaged was that for the term of his employment in that situation the plaintiff would work very long hours, by day and by night, to assist with the exigencies of ensuring the wheat harvest would be efficiently managed, to quickly get it to the grain storage silos, which were receiving deliveries 24 hours per day during harvest time. 63. The evidence given by Mr Mathew Tremain in this regard was supported by the statements and materials he provided to his workers' compensation insurer after the plaintiff was injured: Exhibit "1" pp 274-252; Exhibit "B". 64. The plaintiff stated that at some time between about 9.00am and 10.00am on 8 November 2000, which was a Wednesday, he went to a paddock on his brother's property in order to get a large rectangular metal field bin and empty it in readiness for it being moved to another paddock where wheat headers were operating. The bin was described as being about 4 metres high and about 12 metres long. The width was not described, but it was clear that it was a large and tall wheat storage container. 65. The plaintiff described having worked inside the bin to scrape and clear out the remaining contents at the bottom. Having done this, he had to climb up a ladder on the inside of the bin and then climb down to the ground by using a "loose" and "rickety" makeshift ladder that had been constructed from plumbing pipes that had been welded to the exterior of the bin. The ladder was fixed but also "sort of a bit loose". The ladder did not reach all the way to the ground and the plaintiff described how he had to jump backwards to traverse the final distance from the bottom of the ladder to the ground. 66. In the course of these events, a bin scraping or rake-like device had been left on the ground below by the plaintiff's brother. The plaintiff recalled that he "went backwards onto the rake" whereupon he twisted his right leg, landed on the point of his left shoulder, and in doing so, he hit and cut the left side of his head on a rock located on the ground, hurt his neck and experienced excruciating pain in his knee. The plaintiff said he felt the sensation of hearing his "knee snap". He explained that the neck pain he felt, was in the region of C6 to around T10. 67. The plaintiff stated that after the injury in question, within a matter of days he realised it "was pretty pointless staying on the farm" and he then returned to Newcastle. Treatment described in the oral evidence of the plaintiff 68. The plaintiff's oral evidence was not definitive as to the detail of the treatment he had obtained for his injuries. That treatment was described in some of the medical reports tendered. I will therefore refer to that treatment in some more detail where appropriate, when reviewing the reports from the treating doctors and the assessing doctors, in connection with analysing the plaintiff's claim for damages. Initiation of the principal proceedings 69. The plaintiff described having seen an advertisement on television in the Hunter region for a company called Voices One, offering to obtain "the best legal advice available" for people with personal injury claims. He said he had responded to that advertisement by telephoning the Voices One organisation. As a result of that call, he said he was invited to attend the office of the organisation, where some paperwork was attended to, and whereupon he was referred to the defendants' firm of solicitors, Bale Boshev. He went to see the defendants' firm at their Hamilton office, and on doing so, he said he was then allocated a solicitor to act for him, namely, Mr Gregory Schipp. 70. On 11 April 2001, the plaintiff signed an election form prepared for him by Bale Boshev. The effect of that form was to indicate that he wished to proceed with a common law claim against his employer to claim damages for personal injury sustained in the workplace in respect of the injury in question. He said he gave those instructions in the context of having been given advice from Mr Schipp, to the effect that his claim had reasonable prospects of success. The plaintiff stated that Mr Schipp "was pretty adamant that we had a strong claim for common law" damages. It was in these circumstances that the principal proceedings were filed on 17 May 2001. This was about 6 months after the plaintiff had sustained his injury, and about 5 weeks after the time when the plaintiff had first consulted Bale Boshev. The evidence did not contain any analytical advice as to the merits of the plaintiff's claim or an analysis of the evidence available to support the claim. Course of preparation of the principal proceedings 71. The plaintiff stated that during the entire time that he was represented by Bale Boshev, he could not recall receiving advice from the firm concerning the effects of bringing a claim for common law damages on his workers' compensation rights. 72. In cross-examination, the plaintiff was taken to correspondence from Mr Schipp in November 2001, and in particular, to an offer from the defendants in the principal proceedings, offering to settle the plaintiff's claim in the following terms: "We are instructed to make a first and final offer of $50,000 to finalise all the applicant's claims against the respondent on a commutation settlement basis." 73. The plaintiff had rejected that offer of $50,000 on the advice of Mr Schipp. He said that this was because Mr Schipp "didn't believe that that was enough" money. The plaintiff said he could not recall having any conversations with Mr Schipp concerning any impact that a settlement in those terms would have on the common law claim that he had made. 74. In cross-examination, the relationship between the plaintiff and his former solicitors was, to a degree, explored with regard to discussions and correspondence that passed between them. That correspondence was not voluminous. The plaintiff's letter dated 1 October 2001, which formed part of that correspondence, included information that, amongst other things, served to alert his solicitors to the fact that he was trained as a spinologist, and could no longer work in that field. The particulars of claim in those proceedings did not make a claim for loss of earning capacity as a spinologist. Historical events between time of injury and settlement as recounted by plaintiff 75. The plaintiff stated that he had ongoing right knee problems including the knee giving way and collapsing a number of times when he walked. This necessitated him seeking out medical assistance and ultimately surgical treatment of his right knee by Dr Ostinga, an orthopaedic surgeon who ultimately performed surgery on the knee. On 18 October 2001 the plaintiff suffered a significant fall in which he aggravated his neck and left shoulder condition. This was because his injured right knee had given way. The defendants missed this item of history despite being informed of it by the plaintiff, in writing. 76. The plaintiff described receiving cortisone injections into his injured left shoulder. He had ongoing problems in the neck region. He said these affected him to the point that he could not work. He described these injections, as being the only measure that allowed him to bear the pain from these affected areas. He also described taking Panadeine Forte tablets on a regular basis. It was these circumstances that led the plaintiff to seek out legal assistance to claim compensation for the effects of his injuries. 77. After receiving legal advice from the employee of the defendants, Mr Schipp, the plaintiff elected to pursue proceedings to claim common law damages. The analysis which based that advice was not recorded by the defendants. 78. There was little reference in the evidence to the course of the communications between the plaintiff and the defendants for the purposes of preparing his claim for hearing. Counsel for the defendants developed some aspects of those communications during his cross-examination of the plaintiff. Those matters have to be read in conjunction with the exhibits, which largely comprised the solicitor's file and counsel's brief. Where necessary, I shall refer to those matters when analysing the documentary exhibits after reviewing the matters that were raised in the cross-examination of the plaintiff on behalf of the defendants in these proceedings. Circumstances of settlement of the principal proceedings 79. The plaintiff stated that at about 9.00am on 1 August 2002 he attended the chambers of Mr Peter Kirby for a conference with Mr Kirby and Mr Schipp, knowing that Mr Kirby was the barrister who had been retained by his solicitors to represent him in the principal proceedings. He had not met Mr Kirby before that day. 80. The plaintiff described the course of the conference, stating that Mr Kirby asked him questions and he had answered them. He stated that the gist of the conference was that Mr Kirby was going through a range of damages figures and was writing notes as well as talking about a range of damages and pointing various figures out to him. The plaintiff's recollection was that the range of damages given to him at that conference was approximately $350,000 to $450,000 "not including costs". In this regard, the plaintiff's evidence was: " … A. Your Honour, I don't recall every word that was said that morning in the office but I clearly know that the words, he took me through the figures that were on that page and I walked out of that office believing that I was getting a figure between 350,000 and $450,000." 81. The plaintiff was shown page 110 of Exhibit "A". He identified that page as comprising the notes from which Mr Kirby was speaking to him about a range of damages. The plaintiff reiterated that the range of damages of $350,000 to $450,000 had been put in his mind at the conference. The plaintiff said that after the conference, he did not see Mr Kirby again on that day. 82. In his evidence in chief, the plaintiff then described the events that transpired from the time the conference had concluded, until the time the proceedings were settled. His evidence in this regard was as follows: "Q. Just pausing there. I'll come back to that, there was another issue which would be a bit out of sequence so I'll come to that a bit later on. After the meeting in Mr Kirby's chambers, what occurred then, Mr Mills, on 1 August 2002? A. Mr Schipp, Mr Schipp and I left Mr Kirby's office. We walked across to the court, I can't remember exactly the time but we walked across to the court and Mr Schipp asked me to wait in the waiting room there and wait for him to return. Q. Right, and what happened, did you wait in the waiting room? A. I did wait in the waiting room. He disappeared and over the course, the next course of reasonably short time, he came back to me with, with an offer, I can't remember now what those offers were, those initial ones were. One came to mind I think of, of about $90,000 and he said oh that's ridiculous, we'll go back and talk to them further and he was only there with me for 30 seconds or so and then just turned around and walked straight back. Q. Right. A. He made a couple of trips out to me, I don't think it was any more than that. Q. Now do you recall, there was a conversation that took place between you and him in the course of the morning away from the actual courthouse, do you recall that? A. Yes, I do. Q. How did that come about? How did it come about that you had a conversation with him away from the court? A. Mr Schipp came to me and said, "Better come for a walk with me." He took me out of the waiting area. We crossed over the street. At the Newcastle court there's a little hotel on the opposite corner. We crossed over the street on the corner outside the hotel, away, there was no other people there. We were by ourselves and he then had a conversation with me there. Q. What did he say to you? A. He said, "Right, they've stalled on" words to this effect, they've stalled on an offer, it's $175,000 and then clearly in my mind he said to me, "They have damming video evidence." Used those words exactly and it's a concern and went on then to say words to the effect that and I said, well and I recall my words to him then, I said, "That can't be, I can't believe that there's any video evidence at all that would be damming for me." He said, well, they've said that they have got damming video evidence, and I said, "Look, I've had hte surgery on the knee, I've got legitimate injuries, I am only able to suffer the pain because of the cortisone injections and the painkillers." I said I don't believe there's anything that would be detrimental to me on and I was pretty well slayed. He then I said, well, what do you think we should do here? He said, "It would be advisable" and words to the effect that we should accept this offer because there is a very real chance that you would get nothing. Q. What did you say in response to that? A. I just recall being pretty devastated. I really can't recall anything else but maybe an hour or an hour and a half before I was told that I was getting 400,000 roughly and I was and that was none inclusive of costs and all of a sudden I'm getting $175,000 inclusive of costs and I just didn't know what that meant. Really the impact hadn't hit me but that was a long way short of where I believed it was and I didn't believe that there was any evidence that should slay me like that. Q. Ultimately you gave instructions to Mr Schipp to accept the $175,000 offer which had been made inclusive of costs, didn't you? A. I gave on the basis of the fact Q. Please answer my question? A. Yes. Q. What I want to ask you there is what your reasons were for giving him the instructions to accept the offer of 175,000 inclusive of costs, why did you do that? A. He told me that I could get nothing. Q. And did he express the reason why you could get nothing? A. Because of the damning video evidence. Q. And you are indicating that that had an effect on your decision to accept the 175,000? A. Absolutely. Q. Yes. Now at that point could I ask you I will just you signed at that point an authority to settle the proceedings, didn't you? A. Yes, I did." 83. The plaintiff's evidence was that he thought, by what Mr Schipp had said to him, he was left with no choice and was bound to "proceed", by which he explained that to proceed meant to accept the offer made by the defendant in the principal proceedings. Matters raised during cross-examination of the plaintiff 84. The cross-examination of the plaintiff involved some credit issues. I shall examine those matters in my evaluation of the credibility of testimony concerning Issue 1 of the issues calling for decision. For present purposes, it is sufficient to simply identify the topics and the context in which the defendants probed these topics. 85. The plaintiff was questioned about the detail and sequence of his employment history, his previous injury history, the nature, severity and extent of the injuries and disabilities that flowed from the incident in question, and concerns over apparent discrepancies or mismatching of information emerging on a comparison of the available medical reports. 86. The plaintiff's income tax returns were examined in the context of his history of receipt of Centrelink benefits. He explained the fact that he had not declared income from the practice of spinology by reference to the fact that he had not been in practice for long when the injury occurred, his practice was just starting to grow, and that he had changed practice locations. The plaintiff's post-injury financial situation was also explored. The plaintiff could not remember details of income from the 2000 tax return. It appeared that in the 2001 year his income of $32,466 was from workers' compensation payments. At the trial, which was nearly 9 years after the events in question, he could not recall how much he earned from spinology. At the trial he could not remember taking income from his spinology practice, which was conducted in conjunction with other practitioners. 87. The plaintiff's family finances were touched upon. It was revealed that the plaintiff's parents had loaned him and his wife some monies to set up a rental business that was intended to be operated by his wife but this business proved to be unsuccessful. 88. The plaintiff agreed that in 2005/2007, a considerable amount of money passed through his bank account. He explained that his brother Mathew had won a considerable amount of money "from a football pick the margins bet" and that money had passed through the plaintiff's hands, or more correctly through his bank account. The plaintiff denied that he was running a business of gambling. He explained that he had helped his brother out with bets on picking the margins. He identified one such bet as producing a win of $199,000 for his brother. One of the other bets involved an amount of $64,000. He explained the system by which this occurred as follows: "WITNESS: Every weekend on the rugby league you have the opportunity to place from $1 to whatever you want on a bet called either pick the score, pick the dividend, pick the margins, pick the winners. There's a number of betting options with rugby league and pick the margins is where there's a number of possible combinations and it's difficult to pick it and the pools are large and if you buy the gamble out of it you can actually have the opportunity to win an amount of money which my brother did." 89. When the plaintiff was questioned about the dealings he had with Bale Boshev, he stated that he had full confidence in Mr Schipp and trusted that he was doing the right thing by him. He said he would have believed anything Mr Schipp had said to him. 90. The plaintiff said that he had been told the 1977 head injury might have affected his memory. This was a matter that I considered to be relevant to any assessment of the credibility of his testimony. In this regard his evidence was as follows: " … A. In 1977 when I had the head injury, it did - I was told that it may affect my memory but I don't say that that's any blame to remembering things or not remembering things but I don't intentionally ever want to say that I do or don't remember things. If I remember something today I'll say it and if I don't remember - if I remember it tomorrow, I'll tell you tomorrow. It's no a selective memory, it's as I remember things. Q. Which part of your head was injured in that? A. The back part of my brain was injured and it was - a bolt went through the back of my skull. A recent X-ray does show that there's still severe damage on the back part of that." 91. In cross-examination it was positively suggested to the plaintiff that he had been told that very high figures were being put to the opposing side for the purpose of settlement negotiations but that he would only receive a portion at a hearing. It was also positively asserted that the plaintiff had been told he could take his case to a rehearing following a determination by the arbitrator. Absent any actual recollection of these matters by Mr Schipp and Mr Kirby, these questions were obviously based on "usual practice" assumptions. The plaintiff did not agree with those propositions. 92. The plaintiff's evidence was challenged concerning his monetary expectation from the principal proceedings. When the plaintiff was tested on his evidence concerning his belief that when he was going to the arbitration hearing "over the road" from counsel's chambers he was going to get something in the vicinity of $400,000. In his evidence he denied he could have been mistaken about this and that the figures he had in mind were to be used for negotiations rather than the expression of an opinion as to the worth of his case. His evidence was as follows: "Q. Do you recall having a desire in your head at the time of how much you wanted to get clear in your hand out of your settlement? A. I was pretty excited about the fact that Mr Kirby told me I was going to get between 330 and $450,000, sorry, 350 and $450,000. Q. So is this the case that you had an idea in your mind that what you wanted to get clear in your hand was 350 to $400,000, is that your evidence to his Honour? A. I was told that by the people that were representing me. I was told nothing else. I may have been naive, but I had full faith in my legal team at that stage that were working to me and I believed everything they said to me. Q. Did you convey to Mr Schipp any amount of money that you wanted to get clear in your hand from the settlement? A. I can't recall if we spoke about an amount of money except for the amount of money that we've spoken to in Mr Kirby's office. If something was said I can't recall it." 93. On the subject of the consultations the plaintiff had with Mr Schipp concerning the various offers made by the defendants on 1 August 2002, the plaintiff stated that he could not precisely recall the number of times that Mr Schipp went back and forth with offers of settlement, but acknowledged this could have occurred on some 3, 4 or 5 occasions. When the plaintiff was asked questions about Mr Arnold's record of the sequence of settlement negotiations, the plaintiff gave the following evidence: "Q. Do you remember Mr Schipp coming in backwards and forwards with different offers, going to and fro with different figures? A. I do remember that, your Honour, but I don't remember how many times it was, and I really can't remember whether that was a number of times, three or four or five, I can't remember the number of times. Q. The record of those negotiations shows that the defendant's offer was creeping up to a point, and your expectations were coming down to a point, do you remember what your thought processes were during that procedure? A. I had no idea where Mr Schipp's amounts that he was negotiating at were, because he never told me that. The only figures that I was being told was the figures that they were offering, that was the only figures I was being told, and I don't remember how many times that it was that he came in to see me. I can't recall that. He was only telling me the figures that they were offering. He did not ever tell me where they started or what his starting point was. I assumed that if my legal team was doing the right thing by me that the figure of where they would've started would've been somewhere in the 350 to 450,000 mark, that's what I was told. And I certainly would've thought that if I was going to have a chance of getting the upper end of what Mr Kirby had told me, I would have thought that that's where they would've started, at 450,000. Q. Putting those matters aside for a moment, do you recall ever being told that the representative of the insurer had made an offer accompanied by the words "that's it", or words to that effect? A. No, the only time it got to the point of finalisation was when Mr Kirby said, "I want you to come for a walk with me", and that's when we crossed the road. He didn't give me any indication of why we were going for that walk until we got over the road, and that's when he told me about the video evidence and about the offer that had been made, that was the only time that - I didn't get that figure while I was in that waiting room. Q. If you had not been told about the video, I realise it's a difficult question, but if you'd been told the offer was 175,000 and that's it, what would you have done with that offer? A. If I hadn't been told about the damning video evidence? Q. Yes? A. Your Honour, I wouldn't have accepted that offer. I was happy to run the case. We'd spoken about the fact that we were going - I was there that day to go to Court. I was there to go to the arbitration or to the court or - we had every intention to proceed and to go. And only some time earlier than that, Mr Kirby had given me a range of figures that he was very confident that I was going to get. And so - and Mr Kirby's figures were always a range of figures plus costs. This was 175,000 inclusive of costs. That was a long way out of that realm." 94. The plaintiff was also challenged as to what he stated had been said to him regarding the video evidence. His evidence in this regard was in the following terms: "Q. Now, let's go back to the conversation that you allege happened in relation to the video evidence. Doing the best you can, accepting it's a long time ago, can you give the substance of what was said by Mr Schipp to you and you to Mr Schipp on that occasion? What did Mr Schipp say to you? A. The one thing's that very clear to me is that Mr Schipp said they've got damning video evidence and the reason I'm so sure about that as where I'm not necessarily so sure about anything else is that that was about the single most important piece of information that I'd just been slayed within virtually my whole life, so I'm pretty positive that I was going to remember that pretty clearly. HIS HONOUR Q. Was there a critical or significant word in Mr Schipp's discussion that sticks in your mind that described this video? A. They've indicated or told me that they've got damning video evidence, they were the three words that were clear. Q. So not detrimental, it was damning? A. Damning video evidence was the three words that he used. DICKER Q. Well I'd like to suggest to you that didn't happen? A. That's exactly how it happened. Q. Now, you gave some evidence this morning to his Honour that you told Mr Schipp "I thought there wasn't any. I don't believe they've got any. That's impossible". Do you remember giving that evidence? A. Words to that effect, yes. Q. Well why were you worried about this, assuming it was said, if you knew there couldn't be any such evidence? A. As I've said for - I believed everything my solicitor said and when I turned to him as my trusted solicitor after he'd just told me that and I said to him that I don't believe that there is any, I'm looking for him to support me and he didn't. Q. Well did he tell you he'd seen it? A. No, he didn't tell me that all. He told me that they - and I can't remember whether he said that they said or whether he said that they - that they indicated, I don't remember that part. But I definitely said that - I definitely recall that he said damning video evidence. Q. So did you take that to mean that Mr Schipp was conveying to you something that he had been told? A. Absolutely. Q. Well did you say where is it, I'd like to see it because I think it's impossible? A. I did say it was - I did say words to the effect that I - I was pretty slayed right then and there, I was pretty slayed and I just had my legs chopped out from underneath me and I just remember saying to him - I turned around in disbelief and said "That just can't possibly be" and thinking out loud and trying to recall the words that I said were "That that just can't be" and I'm looking for my solicitor to support me and say well let's go back in there and have a look at it and he never said that to me. Q. Well did you ask to have a look at it? A. I certainly said to my solicitor "What do you think about it?" and my solicitor said to me in words to this effect that I suggest that you take this offer because you may get nothing. Q. Is that all he said on that point? A. I can't remember exactly the words that went in and around that, but the two most clear things in my mind were that Mr Schipp was quite adamant that they - from his belief they had damning video evidence and I was left with the feeling that if I didn't settle this I was going to get nothing. Q. Your evidence to his Honour is that you believe you had serious injuries arising from the 8 November 2000 accident? A. Absolutely. Q. And so your evidence to his Honour is, had affected you considerably? A. Absolutely. Q. Had a damaging effect on your life, is that your evidence? A. Yes. Q. You must have been very confident, Mr Mills, on the basis of what you've said that there could be no damning evidence against you on video? A. Yep. Well I was confident of that. Q. Well can you explain to his Honour why did it have any effect on you whatsoever then, assuming it was said? A. I'm just a layperson, you know I've always believed that my solicitors are the people that are going to represent me the best and when Mr Schipp told me that they had damning video evidence and you may get nothing, I just was in shellshock. I don't - all I know is that I felt that at that point in time - I believed my solicitor and I trusted my solicitor to - to go in there and fight for my case. To go in there and fight for my rights. Q. Is this the case you told his Honour that Mr Schipp said you may get nothing, is that right? A. "You may get nothing". Q. Words to that effect? A. Yep. He indicated to me that the damning video evidence could mean that if they'd got damning video evidence which was counter productive to everything that we'd said or everything we had done that I could get nothing. Q. I see, so just to be certain. Is it your evidence that he said to you "If they have damning video evidence that may be" - I'm doing my best here "contrary to your interests that you may get nothing"? A. No." 95. The plaintiff was cross-examined about his understanding of his procedural options at the arbitration hearing, including the option of taking the case to a rehearing before a judge of the District Court. In this regard, his evidence was as follows: "Q. Now, at that time after he conveyed what he did to you, you knew that you could take the matter on for hearing didn't you? A. No. No that's not - I didn't know that at all. Q. Are you telling his Honour that you didn't know that you could run the arbitration? A. I didn't know that. I firmly believed that my solicitor was doing the best for me. Q. Are you saying to his Honour that when that offer from the insurer came and was given to you by Mr Schipp that you were of the view that you could not run the arbitration listed for that day? A. I was of the view that if I didn't accept that 175,000 then, from the advice that Mr Schipp gave me, that I ran the risk of getting nothing if we went any further. … Q. Mr Mills, can you answer this question, did you think you could still run the hearing in the arbitration that day, even though the offer was made? A. No. Q. So did you think that the offer from the insurer, what, ceased the opportunity of running the case? A. No, I didn't think - what I knew ceased the end of everything was that Mr Schipp advised me and I was listening to Mr Schipp. Q. But you knew you were the plaintiff didn't you? A. I didn't know anything except what Mr Schipp was telling me. Q. You knew that you were the plaintiff in the case? A. I knew I was the plaintiff in the case. Q. You knew it was your case? A. Yes. Q. You knew that you made the decisions as to what happened to your case, didn't you? A. I knew that I was paying Mr Schipp an amount of money, some $35,000 to represent me and give me the advice of what I should do. HIS HONOUR Q. Well, that's not quite right is it, you hadn't actually paid that money had you? A. That money was deducted out of the 175,000. Q. Yes, but you hadn't paid it in advance? A. No I hadn't paid it in advance, your Honour, no. DICKER Q. But you knew you could make the decision whether to take the offer from the insurer or not? A. No. Q. Well, what did you think you were obliged to take the offer? A. I was in a situation where I was totally trusting of what my solicitor was telling me. Q. Did you think you were legally obliged to take the offer? A. Yes. HIS HONOUR Q. What did you see, if anything, as your alternatives when Mr Schipp presented you with the information that the defendant's final offer was 175,000 inclusive of costs? A. I didn't believe I had any alternatives, your Honour. Q. Why is that? A. Because Mr Schipp had indicated to me that if I proceeded from there, because of the damning video evidence, I could get nothing." 96. The plaintiff denied that he was told that the insurer would only pay him $175,000 clear of workers' compensation payments and inclusive of costs, and that was their final offer and he could either take the offer or run his case. The emphasis of the denial was that the plaintiff took issue with the suggestion that he had been told he could run his case as an alternative to accepting the offer. 97. I was informed that both parties agreed there was no evidence in the principal proceedings that the defendant in those proceedings had any video evidence of the plaintiff. I was also informed that both parties accepted that Mr Simon Harben SC, who, as junior counsel briefed for the defendant in the principal proceedings, did not say any words to the effect that the defendant in those proceedings had any video evidence concerning the plaintiff. 98. The plaintiff disagreed with the suggestion that on the occasion of each of the offers that the defendant had made in the settlement negotiations in the principal proceedings, Mr Schipp obtained the plaintiff's instructions before putting a counter-offer. In this regard, the plaintiff stated that with the exception of the final figure of $175,000 listed in Mr Arnold's record of negotiations, none of the offers attributed to the plaintiff's side, were made with his knowledge. 99. Neither Mr Schipp nor Mr Kirby had any notes that contradicted this evidence from the plaintiff. Nevertheless, the absence of such notes still leaves for determination the credibility of the plaintiff's evidence in this regard. 100. The plaintiff conceded that he had not kept notes of the negotiations. 101. The plaintiff was asked questions as to when he first felt aggrieved by the events of 1 August 2002. In this regard his evidence was as follows: "Q. And I'd ask you to assume that your proceedings were commenced on 31 July 2008, one day short of six years after 1 August 2002. I'd just ask you to make that assumption for the next series of questions I'm going to ask. Did you feel you'd been hardly done by, by Mr Schipp in relation to the arbitration? A. Yes, I did. Q. When did you first feel that? A. When did I first feel that? Q. Yes. A. That I felt hardly done by Mr Schipp? Q. Yes, Mr Schipp? A. Probably from the moment I'm standing outside that hotel. Q. By that you're referring to 1 August 2002? A. Yes. HIS HONOUR Q. You differentiate between the expression you used the other day in which you said you "felt slayed" and what you're now answering, that is "being hard done by"? A. When I said I felt slayed, at that moment over the road outside the hotel I just felt slayed. It was - your Honour, if it's the wrong terminology then I just - it was an expression of how I felt at that moment to realise - to think in my mind that I was getting a range of figures and then to be told that it was something quite different for circumstances that I didn't think was there. DICKER Q. So is this the case that from the day of the settlement you felt that Mr Schipp hadn't looked after you? A. I was concerned - I had some concerns that Mr Schipp hadn't looked after me from right through the case? Q. But is this the case that from the end of the date of settlement being 1 August 2002 you felt that Mr Schipp really hadn't looked after you and your case, is that correct? A. I really felt that there was something wrong. Q. Something seriously wrong? A. Well is there a difference between seriously wrong and wrong? Q. On your evidence you thought you were going to get 350 to $450,000? A. That's correct. Q. And you ended up getting $175,000? A. 350 to $450,000 plus costs, $275 inclusive of costs. There was a fair bit of difference." 102. Given the question was based on the figure of $175,000, I infer that the reference in the answer to $275 was in fact a reference to $175,000. The plaintiff's evidence continued as follows: "Q. You regarded that as a huge difference, didn't you? A. Yes. Q. You regarded the result that had been achieved for you by Mr Schipp as being a very poor one for you, is that the case? A. Possibly, but at the same time I - at that stage I - not having the time to even think about it, I'm standing there and Mr Schipp who's my solicitor and my - the person working for me has presented me with a number of facts and a scenario and I didn't have a chance to make a decision and I can't remember - I can't remember - all I remember feeling was that the whole thing was pretty disappointing, but I can't - I think I felt disappointed. Q. Well can you tell his Honour why you waited four-and-a-half years to approach - could you tell his Honour why you waited five-and-a-half years after that before you approached your solicitors about the matter? A. Because I didn't know I had any rights. Q. Well why did you approach your solicitors? A. Why did I approach the solicitors? Q. Yes. A. Because I decided to try and go and do something about it, I'd thought about it, we'd talked - in private I'd thought about it and I decided that I was going to just check whether I had any rights. Q. But presumably the same feelings you had when you first approached your instructing solicitor about the matter were the same feelings you'd had for five-and-a-half years, is that right? A. I didn't believe - I didn't know that I had any rights to go back and change anything. I didn't believe I had any rights. I believed that something had been done wrong by me. I believed that - but I didn't understand exactly the same processes as I trusted my solicitor, I believed that that was basically the end of it, but - but as time went on I decided that I would approach a solicitor and the timeframe that you're giving of six years, I didn't know that that was the timeframe that existed. I didn't understand what my rights were, it could've been 20 years, I don't know whether it was six years, one year. I could've turned up there and I could've been told I'm sorry, you're out of time. So I don't understand - that was a coincidental time if that - and are you asking me that I took it to one day, is that your question there" 103. The plaintiff denied that he had accepted the offer of $175,000 made by the defendant in the principal proceedings because he knew it was a final offer made in circumstances where the insurer was investigating his past, and where it was asserted he had not been frank with the doctors when discussing his previous injuries, and because he was worried that if he proceeded with the case he "may well lose the case and get less than that offer". He denied he wanted to close off the risk of these eventualities occurring as being the motivation for settling the case. Evidence of Mr Mathew Tremain 104. The plaintiff's older brother, Mr Mathew Tremain gave very brief evidence in chief. He was unwell at the time of the hearing. He confirmed that in 2000 he operated a wheat growing business under the company name of M R Tremain Pty Ltd. In October 2000 he employed the plaintiff as a farm hand. The work involved the plaintiff driving trucks, operating tractors and grain headers as well as emptying grain bins. The hourly rate for such work varied between $14 and $30 per hour and the harvesting work proceeded for between 13 and 19, sometimes 24 hours per day, depending on the weather and other exigencies. 105. In answers to cross-examination, Mathew Tremain said he ceased trading under the name of M R Tremain Pty Ltd on 31 May 2002 and the properties involved in his business were sold to another company he controlled, namely Bradlock Pty Ltd. He was still a grazier and grain grower. In answering questions on farm losses, accounting issues and his financial returns, he deferred these questions to his accountant who managed those issues for him. He was questioned as to the declaration of wages he provided to his workers' compensation insurer for the period 21 June 2000 to 21 June 2001 in the amount of $5320. He confirmed this could have represented the amount of about 4 weeks wages he had paid to the plaintiff. 106. The plaintiff's injury occurred on 8 November 2000 and Mr Tremain's wheat harvest was completed by about 12 November 2000. He confirmed that the paperwork concerning the employment of the plaintiff was filled in on 28 October 2000 : Exhibit "A" pp 343, 345. He explained that the harvest of his 3000 acres only went for about a week and a half. He said "anyone with their act together does it in ten days". 107. Mr Mathew Tremain explained that the plaintiff came to help him on the farm at short notice due to a labour shortage. He said that to accommodate this request, the plaintiff had left his family and his spinology practice behind at Newcastle to do so. This was in the context of evidence that the brothers had a close relationship and would help if called upon to do so. He gave a detailed factual statement to his workers' compensation insurer : Exhibit "B". Evidence of Mr Anthony Tremain 108. The plaintiff's younger brother, Mr Anthony Tremain gave evidence. He was trained as a chiropractor and had practised in that profession. He said that since 1996 he has been a practitioner and teacher of spinology. He said that since 1998 he has been the chairman of the professional development board of that profession. He explained the essential difference between the disciplines of spinology and chiropractic as being that spinologists do not manipulate the spinal column, and there is a different approach taken to the analysis and prevention of pain. 109. Anthony Tremain stated that he had trained the plaintiff as a spinologist and from that perspective offered the view that the plaintiff was highly competent in that field. Anthony Tremain stated that in 2000/2001 he was probably earning $250,000 per annum from the practise of spinology. He stated that a competent spinologist could expect to derive income of that order by treating about 200 people per annum at the rate of $100 per person per month, which would involve a total of about 600 person visits per annum, with the income rising to somewhere between $300,000 and $500,000 per annum with relatively small overheads. 110. In answers to cross-examination, Anthony Tremain confirmed that the plaintiff had completed the spinology instruction course in 1998. He said he helped the plaintiff to set up and promote his practise in the Newcastle area. Evidence of Mr Gregory Schipp 111. The defendants called as a witness their employed solicitor, Mr Gregory Schipp. He stated that he was admitted to practise as a solicitor in 1994. He said that he joined the defendant's firm in 1996. At the time of the scheduled arbitration hearing of the principal proceedings, Mr Schipp stated that as at August 2002, as a solicitor employed by the defendants, he was responsible for more than approximately 300 active files. He could not say how many of those files involved District Court actions, but when pressed, he ventured an estimate that there 50 such files. He explained that these files involved workers' compensation matters and public liability common law matters. Mr Schipp stated that he felt he was able to handle 300 active files adequately. 112. Mr Schipp confirmed that the plaintiff had been referred to the firm Bale Boshev by an organisation called Voices, which operated in the Hunter region to refer injured persons, such as the plaintiff, to solicitors to handle their claims for compensation for injury. The defendants allocated Mr Schipp to have carriage of the plaintiff's claim that had been referred to them in this context. Mr Schipp identified the handwriting on the referral form as being that of a Mr Ron Carlyle, the person from Voices who took the initial details of the plaintiff's particulars before referring him to the defendants. The referral form, as annotated by Mr Carlyle, has been copied and appears between pages 314-318 of Exhibit "1". 113. Those pages also contain what Mr Schipp identified as handwriting that had been added to the document by both himself and by Mr Kirby. I infer from the circumstances that the copy document so identified was considered and expanded upon by Mr Schipp, who briefed it or a copy of it to Mr Kirby, who in turn wrote upon the copy that was in his brief. Relevantly, Mr Schipp identified the words "Chiropractic qualifications" on the document as being in his own handwriting and referrable to the plaintiff. This detail did not appear in the particulars of claim filed in the principal proceedings. 114. Mr Schipp stated that he did not keep any form of time records or accounting for costs purposes. This was because his firm did not cost their files on a time costing basis, and instead used a standard flat fee costs agreement. The defendants' costs agreement for the plaintiff's principal proceedings was copied at pages 322-323 of Exhibit "1". The agreement provided for a fixed lump sum cost of $35,000 inclusive of disbursements, counsel's fees and GST if the plaintiff's matter went to trial, with the provision for additional costs of $5000 per day of hearing, plus GST. 115. Mr Schipp stated that on 1 February 2002, the plaintiff's principal proceedings were listed and allocated for an arbitration hearing to take place in the District Court at Newcastle on 1 August 2002. He explained this listing had the effect of engaging the agreed sum of $35,000 for costs. 116. Mr Schipp stated that the only thing about the plaintiff's case that he could remember was the circumstances of the accident. This was because the described circumstances were a little unusual. Apart from that, he stated that he did not remember the events of 1 August 2002 at all. 117. Mr Schipp stated that he had no recollection of any reference to a discussion about video evidence on that day. He stated that if the defendant's representatives had mentioned video evidence to him, his practice was to mention it to the client. He said his practice was to also discuss the possibility of video evidence if the client had raised it with him. He denied that he would have suggested to a client that the defendant had video surveillance film on him if the defendant's representatives had made no reference to a surveillance film. His evidence in this regard was as follows: "Q. If a defendant's solicitor or counsel had not made any reference to you about a surveillance film in relation to the plaintiff, are there any circumstances in 2002 where you would have suggested to a plaintiff that a defendant did have surveillance film on the plaintiff? A. No, definitely not. Q. I'd ask you to assume as a hypothetical that a defendant said to you, and by that I mean defendant's solicitor or counsel said to you that the defendant had either damning video evidence on a plaintiff or detrimental video evidence on a plaintiff in the course of negotiations at an arbitration hearing before the District Court in August/September 2002, did you have any practice as to what you would do with that information if you were told? A. If a defendant told me that they had video evidence of my client I would certainly - I would certainly tell them that the defendant had told me that they had video of them. Q. Yes. A. What I would usually say to a plaintiff in those circumstances is that first of all I've seen a lot of - I've seen a lot of video played and most of it that I've seen - irrespective of what the defendant says is not very exciting and I would always tell that to my client. If the defendant tells me they've got video, I'd tell them, but I would also tell them that I wouldn't know what's on it. It might be completely innocuous. I'd always say that to them. Secondly, the other thing I always say to my client's about video is that the real issue about video is not what's on the video, it's whether or not you in prior cross-examination have admitted or denied doing certain things, but that's where it affects your credit. In my view that's where video is much more potent rather than just a video of a person walking down the street to get something from the shops. Q. You've given evidence there just in relation to when you told us video evidence. Would that practice alter at all if the words used were "damning video evidence" or "detrimental video evidence"? A. If - hypothetically if the defendant said that to me I would say to the client that the defendant thinks that this is important or this is damning, if that's what had said. But I would also go on to say the same thing. That is defendant's do say that often and, in my opinion, the video that comes out is not always that damning. Q. But certainly you have no recollection of - I withdraw that. Do you have any actual recollection of any reference to video evidence on that day? A. No, I don't. Q. And I'd ask you to assume that the evidence discloses that defendant did not have any video evidence. Would you have a practice of raising the question of video evidence at the time if it hadn't been mentioned to you? A. Clients often - clients often mention that to me. They might-- MCCLINTOCK: I object to that. That's not responsive. HIS HONOUR Q. You were asked whether you had a practice. DICKER Q. Did you have a practice at the time of mentioning video evidence if a defendant hadn't actually mention it to you? A. I had a practice of mentioning it to my client if it was that the client raised it with me. DICKER: Thank you." 118. Mr Schipp suggested that it was possible the plaintiff may have raised the subject of video evidence with him in seeking an understanding for the defendant's negotiating stance. His evidence in this regard was in the following terms : "Q. In the context of discussing video evidence, is it possible that the subject of video evidence could have been raised in the context of seeking an explanation for why the defendant had, in effect, dug in its heels in negotiations? A. The plaintiff may well have raised that with me, yes. Q. Is it equally possible that you could have raised it with him? A. It's possible that I might - it's possible that I might have said - if he had of said, for example, why are they only offering me 150,000, for example, I might have said - you know, as a matter of practice I might have said, "Look, I don't know. That's the view that they've taken and they may have some video." That's not out of the realms of possibility that I might have said that. Q. Yes. A. I certainly wouldn't have said, "They might have some damning video of you." 119. Accordingly, the limited factual evidence given by Mr Schipp, by which it was sought to illuminate the events of 1 August 2002, was based on his understanding of the usual practice adopted by his retained counsel, Mr Kirby, in such cases, as well as his understanding of his own usual practice, aided to a degree, by the documents that comprised the file kept by the defendants. 120. In this regard, Mr Schipp claimed, on several occasions during his during cross-examination, variously, that he did not have his file, he hadn't looked through his file and he didn't have a copy of his file. He stated that the file was with his solicitors, and I infer from the circumstances of the answer, that he was referring to the solicitors who presently act for the plaintiff in these proceedings. 121. Mr Schipp was asked about his firm's file archiving practice, he explained that Mr George Boshev went through the files and generally tidied them up, threw out duplicates and then sent them to a warehouse where they would be stored for 7 years before scheduled destruction. He stated that the file had been accessed from the archive for the purpose of sending it to the plaintiff's present solicitors. 122. When Mr Schipp was shown a copy of the defendants' file that was in evidence, the following interchange occurred: "McCLINTOCK Q. In fact to the absolutely fair to you Mr Schipp, I will have you shown – A. It's certainly not the entire part of my file. Q. Well, what's missing? A. Well it looks like there's a fair bit of correspondence missing; there's a lot of medical reports that I can see; there's a bit of pleadings; some correspondence. It is nowhere near full of correspondence." 123. When Mr Schipp was asked questions about the provenance of the copy of his former file, he stated that an administrative staff member employed by the defendants' firm had sent the file to their solicitors on 4 September 2007, as indicated by a letter of that date, which was shown to him during cross-examination. In the course of answering questions Mr Schipp queried whether he had been shown the entire file. In this regard. The following interchange occurred: "HIS HONOUR: Well, just take your time and look through it so that you can indicate whether you can answer the question. WITNESS: I don't think this is the entire file, but according to the timetable which comes out from the court when the statement of claim is filed, there's a status conference on 30 January 2002. But whether or not it was actually on that date I can't tell because I don't think this is a complete file." 124. There were no attempts within the evidence to definitively follow up this statement by Mr Schipp, to either confirm or rebut the suggestion that the copy of the file that was tendered was incomplete. 125. At a later stage of Mr Schipp's evidence, it appeared from his examination of page 328 of Exhibit "1" that he was being asked to examine counsel's former brief, rather than his file. That page constituted an index to the counsel's brief with all relevant headings:1. Pleadings, 2. Claim forms, 3. Medical reports, 4. Relevant correspondence. There was no sub-index, or any other indication as to the details of the documents that had actually briefed to counsel. An examination of the exhibit revealed that the papers contained no factual or witness statements. 126. In the absence of his actual recollection of the relevant events of 1 August 2002, Mr Schipp was asked questions about his own usual practice, as well as questions about his knowledge of the usual practice adopted by Mr Kirby in certain professional circumstances. 127. The evidence of Mr Schipp as to the aspects of usual practice that were common to both himself and to Mr Kirby, was as follows : (a) He and Mr Kirby would always tell a client that in the case of a hearing before an arbitrator, it was possible to take the case to a rehearing by a judge of the District Court; (b) He and Mr Kirby would advise a client that either a defendant or a plaintiff could apply for a rehearing if it was felt that an arbitrator's award was entered for an amount that was perceived to be either excessive or inadequate. 128. The evidence of Mr Schipp as to his own usual practice was as follows: (a) At the pre-hearing conference Mr Schipp had no particular practice as to what was said to the client at that meeting; (b) If a pre-arbitration conference between barrister and client was fixed for the date of the hearing of the arbitration, he would generally attend; (c) If a pre-arbitration conference between barrister and client was fixed for a number of weeks before the arbitration, he may or may not have attended; (d) Whether or not a note was made of what was said in the course of a conference with clients, depended upon what was said. In the context of this case, he could not remember making any record as he had no recollection of the conduct of the file. 129. The evidence of Mr Schipp as to the usual practice of Mr Kirby was as follows: (a) Mr Kirby's practice was to see clients for about half an hour from 9.00am on the morning of a scheduled arbitration hearing when a matter had been listed for arbitration hearing at 10.00am. Mr Schipp said that at such a conference: (i) Mr Kirby would generally give the client a brief outline of the nature of the proceedings that were on that day; (ii) Mr Kirby would usually have a chronology started, with a few questions to ask the client, if he thought there were gaps to fill; (iii) Mr Kirby would then talk about settlement, in which he "would talk about a range, not necessarily a range, but he'd talk about the heads of damages and where he thought it would be a good idea to start some negotiations" ; (iv) Mr Kirby generally "did the talking" at the conferences; (v) Mr Kirby would express opinions or give advice; (vi) Mr Kirby would briefly talk about the medical evidence if there was something important that he thought the client should know about; (vii) Mr Kirby did "not really" have a practice of giving a summary of his views of the medial evidence; (viii) Mr Kirby would talk to the client about the heads of damage, and what he thought he could justifiably put to the opposing side as an offer; (ix) Mr Kirby would not usually talk to the client about the bottom end of the range; (x) Mr Kirby would tell the client that the negotiations would start with whatever the offer was that was discussed, "to try and flush out as much money from the insurer as possible and then it would be up to the plaintiff to think about it" ; (xi) Mr Kirby sometimes, but not all the time, had a practice of expressing an opinion to the client as to what he thought the client might be awarded by the arbitrator, in monetary terms; (xii) Mr Kirby would generally talk about the offer "we would make to the other side", including the nature of the schedule that would ultimately be submitted to the arbitrator "if necessary" ; (xiii) Mr Kirby had a practice of talking to the plaintiff about the risks of the litigation; (xiv) Mr Kirby had a practice of advising clients that in the event of a common law claim being successful, the client's workers' compensation rights would be terminated, but if the claim were to be unsuccessful in showing negligence in those proceedings, the workers' compensation rights would be retained; (xv) Mr Kirby had a practice of advising clients that if the claim were to be unsuccessful, there was an "appeal to the District Court" , which I take to be a reference to the right of a party to have a rehearing before a judge of the court; (xvi) Mr Kirby had a practice of advising on the costs consequences of success or failure in the proceedings; (xvii) Mr Kirby was the one who would prepare the client for giving evidence, by which he meant taking the client through the evidence that was intended to be adduced before the arbitrator. It appears this was without the benefit of a statement in this instance; (xviii) Mr Schipp could not recall whether Mr Kirby had a practice of talking about the potential for complications due to thresholds and risks arising under the workers' compensation legislation; (xix) Mr Schipp did not think Mr Kirby had a practice of informing the client of the consequences to the litigation if he did not meet the required thresholds, which I take to mean the statutory thresholds for common law damages under the Workers' Compensation Act 1987; (xx) When Mr Kirby went through matters in conference Mr Schipp would himself maintain a silent role, unless he felt there was something that needed to be said, in which case he would say it; (xxi) Mr Schipp stated Mr Kirby had a practice of keeping notes on the back of his notebook so that Mr Schipp generally did not keep notes of settlement negotiations. I interpolate here that no evidence was introduced into these proceedings in the form of such notes that may have been made by Mr Kirby in the course of such a practice in the circumstances of the plaintiff's case. 130. Mr Schipp stated that the "usual practice" considerations that I have identified and listed in the analysis of the preceding paragraphs, were attended to in the pre-arbitration hearing conference that normally occupied 30-45 minutes on the morning of the arbitration hearings. 131. Mr Schipp agreed that at the time, the distribution of the work associated with arbitration hearings in Newcastle was that Mr Harben, who in this instance appeared as counsel retained for the defendant and who was instructed by Mr Arnold, and Mr Kirby, whom he had instructed to appear for the plaintiff. Mr Schipp stated that these two counsel were often briefed on the opposing sides of such cases. In this regard, he stated that it would not have surprised him if, in the course of negotiations, Mr Arnold may have conveyed an offer whilst Mr Harben was busy with another task. This was in contrast to the evidence of Mr Arnold, whose view to the contrary was stated to be so without a shadow of doubt in his mind. 132. Still speaking generally, Mr Schipp stated that in such circumstances, counsel would often just negotiate between themselves, but not always. 133. Mr Schipp was asked to comment on Mr Arnold's record of the settlement negotiations, a copy of which appeared at page 458 of Exhibit "1". He said he had no reason to doubt the way in which the "toing and froing" of negotiations was represented in that record. Mr Schipp said that in relation to such offers, "we talked to him about the offers that had been made and what he wanted to do in respect to making a counter offer". 134. That statement which appeared in the evidence of Mr Schipp has to be weighed in the light of his statement that he had no recollection of the events of that day on 1 August 2002. It therefore needs to be decided whether this statement by Mr Schipp was based on an actual independent unaided recollection, a general statement of assumption, or an aided recollection that had been refreshed by Mr Arnold's note. I will return to this question in my consideration of Issue 1. 135. Mr Schipp stated that he had never rejected an offer from an insurer and put back a lower offer than his last higher offer without getting instructions beforehand. 136. When Mr Schipp was asked to consider the suggestion made in this case, that he advised the plaintiff to take an offer of $175,000 inclusive of costs of $35,000 because otherwise the plaintiff could get nothing, he responded by saying "I don't remember the day at all, but that would be inconsistent with [his understanding of] what happens at arbitrations". He explained his reasoning for that answer being that if the plaintiff got nothing, "he's entitled to have it re-heard". I interpret that evidence to have referred to the possibility that if the arbitrator found against the plaintiff on liability or threshold issues, the plaintiff would have a right to a rehearing before a judge of this court, and the plaintiff would exercise that right. 137. Mr Schipp was asked to assume the circumstance that in the course of negotiations at an arbitration hearing in 2002, the representatives of an insurer had made an offer during the course of negotiations and had said of that offer : "That's it". Without objection, he was asked as to his practice as to what he would tell a plaintiff client in such circumstances, the underlying assumption in the question being that statements in these terms are said by the representatives of insurers with sufficient frequency to form a pattern for which a practice response could be said to have evolved. The question was obviously directed to the topic of what Mr Schipp considered might be a prudent response to such a statement. In answer to the question, Mr Schipp stated: " Q. What was your practice? A. Well my practice would be to tell the client that that's what they had offered; they'd told us that that was the end of the road, if you like, as far as negotiations were concerned. Q. Yes? A. I'd also often tell them, that although that's what the insurer said, sometimes the insurer might have a little bit more up their pocket to - up their sleeve to try and settle the claim." 138. On this topic, the ultimate point made by Mr Schipp in his evidence was that the decision to settle the plaintiff's case was not his, but was the decision of the plaintiff. In this regard, in cross-examination he acknowledged that it was a fundamental part of his obligation as a solicitor to ensure the client understood the ramifications of what was being done in the litigation. He also agreed that it was his role to try to help the client achieve such an understanding, and to therefore explain matters for this purpose so that the client could make an informed decision. In this regard, Mr Schipp acknowledged that in such circumstances, a client would be relying upon both him and upon counsel concerning what had been told to the client. 139. Mr Schipp agreed that it is part of the solicitor's duty to record matters of which the client had been informed, and in this regard he confirmed as critical amongst those duties to record what the client was told concerning the basis of making a choice between pursuing common law rights or relying upon rights under the workers' compensation regime. When it was suggested to him that he didn't fulfil that obligation to the plaintiff in that regard, his reply pointed to the election having been signed by the plaintiff as being evidence of the plaintiff having been informed of such matters. 140. Mr Schipp agreed with the truism that in the vast majority of cases the aim of the client was to obtain monetary compensation for injuries they felt they had suffered. In this regard he agreed that he had a considerable degree of experience in how courts approached the task of assessing damages. In this regard, he also acknowledged Mr Kirby's even greater experience. 141. Mr Schipp agreed it was part of his function to assess whether the common law claim brought by the plaintiff against his employer had reasonable prospects of success. He said he had made the assessment that the plaintiff's claim had such prospects. He agreed with the proposition that for the plaintiff's claim to have been assessed to have reasonable prospects of success he would have had to have formed the conclusion that the plaintiff had a chance of obtaining an award of damages expressed as being better than "18 per cent" of a most extreme case. When asked about his thought processes at the time he made that assessment he stated that he could not recall them "back then". He could not explain how he had formed his view of prospects of success of the plaintiff's case. In this regard, he gave the following evidence: "Q Did someone with carriage of this file form a process of analysis on the evidence available prior to the expression of this opinion on the prospects of success had [sic for that] formed a record which could be referred to justify that opinion? A. No, there wouldn't be a record of that." 142. In this regard, Mr Schipp stated that it was not his practice to make a record of such an analysis. He stated that "I wouldn't do an analysis other than read medical records and form a view about them and listen to the plaintiff." There was no record in the exhibits as to which reports were reviewed by Mr Schipp in this way, or when this occurred and to what analytical conclusion. 143. In agreeing that he had formed the view that the plaintiff had reasonable prospects of achieving a finding of at least "18 per cent" of a most extreme case, he could not recall whether he came to a view as to an actual percentage figure that might be achieved. In this regard his evidence was as follows : " Q. And as a matter of practise in 2001 would you have addressed your mind to the actual percentage that you thought the plaintiff might get? A. No, I wouldn't have." 144. Mr Schipp variously agreed with, or stated, a number of propositions concerning litigation. These matters, which were based not on any actual recollection, but on "usual practice" in assumed circumstances, are set out as follows: (a) He agreed that litigation of the kind in question here could be of enormous and fundamental importance to plaintiffs in personal injury cases, at times, being the most important thing in their lives whilst the litigation was current; (b) He agreed that it was fundamentally important that the client understand what was being done in litigation, and he also agreed that it was fundamental that the claim should be accurately particularised, including on the issue of future economic loss. It was common ground that the particulars were filed in the principal proceedings on 17 May 2001. Mr Schipp could not say whether he updated those particulars as a result of instructions given to him by the plaintiff because he was not convinced that he had been shown an entire copy of his file; (c) Litigation included the process of getting a client to understand as best the client could, giving informed instructions to enable dealings with the opposing side, at least in relation to settlement negotiations; (d) Before receiving an explanation by counsel, a lay client in the position of the plaintiff would probably not have a detailed understanding of the mechanisms by which damages would be assessed by an arbitrator or a judge, and wouldn't understand how future economic loss was calculated; (e) A client might have a rough understanding of the concept of past economic loss if it had been explained that it was for loss of wages suffered as a result of accident, but the words "past economic loss" were not of themselves clear, without a prior explanation; (f) Clients in personal injuries cases were dependent either on the solicitor, or in this case, counsel, for an explanation as to what they were likely to obtain by way of damages. In this regard, Mr Schipp stated : "Yes, as I say Mr Kirby would do that in the conference." ; (g) In litigation of the kind in question, the client would be placed in the position to be able to make an informed decision "about whether the figure to start was right or wrong" by being sat down in conference with Mr Kirby to go through each head of damage and where it was explained to them. He said that by this process they "came up with a figure" ; 145. When Mr Schipp was asked, according to his understanding of what generally occurred at conferences, whether the plaintiff asked the questions and received explanations from Mr Kirby, namely "This is what I think you could get?"; "This is the very top of the range?"; "This is the bottom of the range?"; "This is my view as to what you'll probably get?", his answer was : "I can't tell you". 146. In the context of his evidence that he could not recall anything said by Mr Kirby about what the client was likely to obtain by way of monetary damages, Mr Schipp said: " … A. I don't recall him saying anything that day, as I said before. Q. As a matter of his practice, in the many, many matters with which you dealt with Mr Kirby, what do you recall him saying? What was his practice as to informing plaintiffs as to what they were likely to get? A. Well, he'd go through each of the heads of damage. He'd talk about non-economic loss. He'd talk about past and future economic loss. He'd talk about medical expenses, superannuation and he would give them a thumbnail sketch, if you like, of how those things were calculated. Q. You perhaps misunderstand me, Mr Schipp. How did he tell the client what he thought they were likely to get? Is that the answer to that question? That is, when he pointed out those figures, he was giving his professional opinion as to the likely amount of recovery they would receive? A. No, what I said was is that Mr Kirby would - Mr Kirby's basic idea, when he saw the - the plaintiffs was to look at the heads of damages and he would tell them that this is the place - or he would suggest to them this is the place where we should start negotiations. Q. Mr Schipp, that's telling your client nothing, isn't it? A. Well, Mr Kirby is doing the telling, not me. I'm not telling them anything." 147. Mr Schipp stated that at some point in negotiations where an offer had been put, and where it had been identified as being at the end of negotiations, Mr Kirby would generally "say what he thought about that offer, whether it was in the range, and that's the advice that he would give them". 148. When Mr Schipp was taken to Mr Kirby's notes of quantum calculations appearing at page 384 of Exhibit "1", he was asked to agree whether, according to his knowledge of the practice of Mr Kirby, the plaintiff in this case had been informed in effect that there was a range of between 25 per cent and 30 per cent of the most extreme case "which could be quantified as 61,725 at 25%, or 74,000 and a little bit more at 30%". In response, Mr Schipp said " I don't necessarily think that's the interpretation of this piece of paper" because of his view that Mr Kirby would come up with a figure "which would be a starting point figure and at the end of the negotiations when the insurer came up with what they said was the final offer, he would then tell the client whether or not he thought that was" an appropriate figure for settlement. 149. On the subject of a solicitor's professional obligations to a client regarding settlement negotiations, Mr Schipp gave evidence as follows: "MCCLINTOCK Q. Mr Schipp, and I just understand this? How consistently were [sic for with] professional obligations could you obtain instructions from a client that any offer, including a starting offer, unless the client had some understanding of a likely range of recovery? A. As I said, Mr Kirby would go through the heads of damages and he would explain how they were worked out and he would explain that this was the top dollar that we could ask for and that's what he would do and he would make that offer to the other side. HIS HONOUR Q. Mr Schipp, given that it seemed a common practice that you would leave it to Mr Kirby to explain matters of this sort to the client, how did you go about satisfying yourself in accordance with your normal practice, that the client had been adequately advised of these matters? A. Well I was present, usually, at these conferences. Q. And when you were not? A. Well I couldn't speculate on - at some time during the day if I was not present, which would be unusual, if it was a conference immediately before the hearing, we would always have a conference with the client sometime that morning." 150. In essence, Mr Schipp described a process of conducting negotiations whereby the client was told what figures were at "the top of the tree" for the purpose of making an offer to the other side and during the course of negotiations judgment was made as to "what sort of money the insurer has" and when negotiations got to the point of "their final figure" then he would "have a talk to the plaintiffs and say want we thought about that offer; whether we thought it was high, low, in the range but that wasn't discussed generally at the first conference". When he was asked questions as to how the client was put in the position that he could know that an opening offer was either rational or irrational, Mr Schipp's answer was that this was achieved by going through the heads of damage as he had indicated. 151. The "top of the tree" analogy was explored to compare the roots, namely whether an effort was taken to identify the strengths and weaknesses of the case, and to convey an understanding of that to the client. Mr Schipp stated that this was achieved "In brief terms" at the conference, by going through the heads of damage, and by going through the medical reports. In this regard, Mr Schipp was asked the following questions: "Q. You see, Mr Schipp, you didn't care, did you, in 2002, whether the client got an amount that was fairly related to what he thought the case was worth, did you? A. Yes I did. Q. And, in fact, there is nothing in the file, your file so far as appears in front of you now, in which you or Mr Kirby said at anything to show that you told Mr Mills and estimate of what your opinions were as to what the case was worth, or his case was worth, is there? A. Well, there's Mr Kirby's notes about the quantum that he'd worked out at the conference". 152. When Mr Schipp was taken to a copy of Mr Kirby's notes, which started on page 384 Exhibit "1", and in particular when his attention was drawn to what was said to be a suggested proposed opening offer of $335,000 inclusive of costs, he was not able to explain how that figure was arrived at, and he confirmed that there was nothing that could be considered to be a counterpart to that document in his file, from which he could provide that information. In this regard, his evidence was that, at the time, it was not the practice of his firm "to prepare a document anything along those lines". When Mr Schipp was challenged as to how it could be said to be possible that a client would adequately understand what he was getting for himself from the litigation without a document of that kind he stated : "Because he has a conference with his counsel that goes through the heads of damage". In this regard, there was no reference to a liability analysis. 153. Because of the absence of file notes, it was not possible to identify all of the attendances that Mr Schipp had with the plaintiff in the principal proceedings. One such attendance which achieved focus was the occasion on which the plaintiff attended to sign an election form to decide to pursue his common law rights. There was no attendance note of other matters that were discussed at that attendance, other than the fact that the plaintiff had signed the election. 154. Mr Schipp indicated that to him, the fact that the plaintiff had signed such an election, meant that the medical reports had been read, and a view had been formed about whether or not the plaintiff's entitlements should be better pursued under the common law regime or the regime provided for under the workers' compensation legislation. He explained that the election form constituted the record. Mr Schipp accepted that it was incumbent upon him as a solicitor, to form a view as to the comparative value of the two courses of action available to the plaintiff and requiring him to elect as to which one he chose to pursue. 155. Mr Schipp agreed that no advice was given to the client in the terms of, for example, the detailed advice that Mr Arnold had given to his client, examples of which were contained in Exhibit "1". That advice contained detailed tabulated extracts and analysis of medical reports which served as a record for Mr Arnold and a method of communicating to his client, his views on the materials described. 156. With regard to the election required to be made by the plaintiff, Mr McClintock SC asked the following questions: "Q. But just by the way, it wouldn't be the case would it, Mr Schipp, that you were influenced in recommending to Mr Mills that he take the common law route by the fact that there was more money in it for your firm to do that than there was in a worker's compensation claim? A. No. Q. Would that be the case? I see. It was the case, wasn't it? A. No." 157. Mr Schipp was asked questions about Mr Arnold's negotiations record appearing at page 458 of Exhibit "1". On reviewing the various offers and counter offers recorded in the document, and with specific reference to the defendant's final offer of $175,000 inclusive of costs but clear of compensation payments, and the previous offer of $275,000 made on behalf of the plaintiff on the same basis, in the context of a drop of $100,000 on the plaintiff's part, resulting in an agreement to settle, Mr Schipp was asked whether something significant happened that caused the plaintiff to drop his offer by that amount. This was having regard to "seeing the miniscule drops of $10,000 that had gone on before then". Mr Schipp's reply was : "Not necessarily". 158. Mr Schipp was asked to assume that prior to the agreement to settle, he had taken the plaintiff for a walk across the road in order to have a conversation with him, whilst standing outside the hotel and across from the courthouse. Mr Schipp had no recollection of such an event occurring with Mr Mills. 159. Mr Schipp was asked whether it was his practice, in 2002 to have done so. He explained that if he had done so, he was not sure that it would have been particularly unusual because there was, in his view, very little room around the courthouse arbitration rooms to have a proper discussion and the area outside the hotel across the road from the courthouse was preferable, where there were some chairs on the footpath "where a lot of clients like to go have as smoke for example and a bit of a drink while there (sic for their) case is getting on". He explained that he had in the past spoken to clients at the tables on the footpath outside the hotel, this being "probably the most comfortable place to have a talk with your client". 160. Mr Schipp rejected the proposition that the reason why he had taken the plaintiff across the road, on the assumption that he did so, was because he did not want anyone else to hear what he was going to tell the plaintiff. Because he had no recollection of the conversation, he accepted the possibility that this could have occurred. 161. With regard to the specific allegation of a conversation between himself and the plaintiff concerning video evidence, the evidence of Mr Schipp was as follows: "Q. But you accept the possibility that you may have mentioned that the defendant had a video? A. I accept the possibility like I said that the question of video came up between me and him. Whether it was raised by him as these things often are? Whether it was raised by me or whether it came from the defendant? I don't have any recollection of it. Q. Well as you sit there in the witness box now Mr Schipp, I want you to address your mind to the impact that you think now, mentioning a video might have had on a client when they are considering whether they accept an offer of settlement in person injuries proceedings? What impact do you think that might have? A. It could well have been taken into account and well should be taken into account if there is video. Q. I see. Now in fact it's precisely the sort of thing Mr Schipp that might very well to your knowledge panic a client into accepting an offer? That's correct isn't it? A. No it's not, because as I said before, I go to pains with clients about video to tell them that video need not be - if it exists - need not be all that dramatic, as long as a client is forthright about it. Q. Mr Schipp, it was in your firm's interest to settle this matter on 1 August 2002 wasn't it? A. It was in our firm's interest to finalise a claim at some stage, but if you're asking me whether that was the motive behind settling the claim, the motive behind settling a claim is the motive of looking after your own client. Q. The motive - I want to put this to you quite clearly Mr Schipp; you told Mr Mills there was damning video evidence didn't you? A. First of all, as I say, I do not remember. Second of all, the words, "Damning video evidence", is not a phrase I would use in any event, and thirdly as I've said, I don't treat video in that way. Q. I see. You'd agree with me that if you did say that to Mr Mills at the time in question, you must have known it was false? A. I didn't say that. Q. I see, but if you had said if Mr Schipp you would have known it was false wouldn't you? A. I don't have any recollection of the day but I would not say, "There was damning evidence", because that's not a phrase I use and I certainly wouldn't say it unless the defendant had told me they had video of him." 162. Mr Schipp acknowledged the possibility that, in view of the disparity between the respective stated negotiating positions of the parties at the conclusion of the exchange of offers as recorded by Mr Arnold, the opportunity and the time might have been taken to analyse the negotiating stance taken by the opposing side as to why a particular position had been adopted by the opposing side. In this context, he agreed that it was his job to alert his client to possible risks. 163. In this regard, Mr Schipp said that the possibility of there being video evidence very often comes up as a topic of conversation with clients. 164. It was conceded that as a solicitor employed by the defendants, Mr Schipp gave instructions concerning the defence of these proceedings. He was cross-examined on paragraph 6.2 of the defence that had been filed by the defendants in these proceedings. He confirmed that the subject of the possibility of detrimental video evidence may have been mentioned to the plaintiff. However, he also confirmed that the instruction he had given all the way along was that he had no recollection of the day in question and he emphasised the word "may" appearing in paragraph 6.2 of the defence. He confirmed that he had viewed the defence before it had been filed, and had not considered that there was anything inaccurate in it, including specifically with regard to paragraph 6.2. 165. In the context of Mr Schipp stating that if he had been told that video evidence existed, he would have told the plaintiff about it, his evidence was challenged as follows : "Q. Mr Schipp I've put this to you in one sense already, I'll put it again. Another possibility is you simply made up the reference to the detrimental video evidence in a conversation with Mr Mills to get him to settle the case? A. Definitely not. Q. In fact that would be pretty much in accordance with your practice in 2002 wouldn't it? A. No." 166. Mr Schipp was questioned in detail about his workings of the preclusion period for Centrelink benefits because his calculations, appearing at page 385 of Exhibit "1", were erroneous. Mr Schipp's workings for the Centrelink preclusion period were roughly set out calculations that could not be readily understood by others. That was not an issue however the resulting error gave rise to a significant credit issue in relation to Mr Schipp's evidence that gave rise to an allegation that Mr Schipp had not properly discharged his fiduciary duty to the plaintiff with regard to the error of calculation of the Centrelink preclusion period. 167. Shortly stated, Mr Schipp had wrongly estimated the preclusion period at 52 weeks. This 52 weeks estimation was stated in the final paragraph of the authority to settle, along with an estimated social security charge of $12 - $13,000: Exhibit "A" p 63. After the settlement, Centrelink identified the preclusion period to be 115 weeks. When the error came to light Mr Schipp failed to fully explain the effects of the error and its correction. He told his client that there had been a small increase in his net settlement amount due to a reduced repayment of $7,652.03 to Centrelink. He did not inform his client that the preclusion period had been extended beyond the assumed date of 1 August 2003 to 15 October 2004. He failed to provide the plaintiff with the Centrelink correspondence which would have alerted the plaintiff to his error. Instead, he represented the outcome of the reduced Centrelink repayment as "a pleasing result" for the plaintiff without informing him of the corresponding detriment : Exhibit "1" pp 402-403. This was characterised by the plaintiff as a deception on Mr Schipp's part. 168. In the context of questions aimed at confirming the understanding Mr Schipp had of his duties as a solicitor acting for a claimant in personal injury proceedings, and against the background of a letter the plaintiff had sent him on 1 October 2001, which included a reference to an inability to work as a spinologist, and also against the background of Mr Schipp's acknowledgement that the obligation to provide particulars to a defendant in personal injury proceedings was an ongoing obligation, he gave the following evidence : "MCCLINTOCK Q. Mr Schipp, to you know what a spinologist is? A. Some form of chiropractic treatment, as I understand it. Q. Where did you get that understanding from? A. I can't possibly answer that question. Q. Mr Schipp, you'd agree with me, wouldn't you, that part of the obligations of a solicitor acting for a plaintiff in a personal injuries matter is to inform himself accurately of what his client's work history is and of the nature of the work that he can carry out. You'd agree with that, wouldn't you? A. Yes. Q. Because that has a direct relevance to the calculation both, in the case of work history, past economic loss and in the case of what he could do, future economic loss? A. Yes, it's relevant. Q. And it's a truism that the higher the income potentially is or the higher the possible the potential income is, the higher the future economic loss will be? A. Yes. Q. And you regard it as part of your duty to maximise the return of your client, wouldn't you? A. Yes. Q. Now, you'd accept that it was part of your duty to find out from Mr Mills the things that except for the accident he was capable of doing by way of work, weren't you? A. Yes. Q. You'd also accept that it was part of your duties to find out what he could earn in the potential employments that he could carry out if it were not for the accident, wouldn't you? A. Well, yes, but those things aren't necessarily capable of scientific calculation. Q. I'm not suggesting they are, Mr Schipp, but what is capable of being done is making a record of what your client tells you about the things that I have mentioned. Where do you we find a record which shows that you considered what Mr Mills could have earned as a spinologist? A. I doubt that there would be a record about that. Q. Because you didn't take any steps, did you, to find out what he could earn as a spinologist? A. I can't answer that question. I have no recollection. Q. You certainly were aware from the document that his Honour has pointed out to you on page 341 that one of the things that he said he couldn't do any more was spinology. That's correct, isn't it? A. Yes. Q. Just, by the way, did you read this document when it came into your office or don't you recall? A. Obviously I don't recall. Q. It's quite possible you didn't read it, isn't it? A. I find it very unlikely that I would not have read it. HIS HONOUR Q. What is it about the document that leads you to that answer? A. I would read all the correspondence that came in. Q. And would you act on it all? A. Well, it depends on what it is. Q. Well, would you act on correspondence of the character of this document that we're now speaking about? A. Not necessarily. Q. Why not? A. Well, it's a statement from my client telling me about various different things, including his injuries and disabilities. It would depend on what was in it, I suppose. Q. Well, insofar as it contains information that impacts upon this claim for loss of earning capacity and contains statements about his inability to work, wouldn't you have to act on it to ensure that the particulars of claim are accurately formulated and supported by evidence? A. But the particulars do refer to loss of earning capacity and loss of ability to work in self-employment and the medical reports refer to his fitness for work and his economic documents, his tax returns and things of that nature tell me what his earnings would have been in the years prior to this injury. I'm not saying - I don't want that to sound like it's a blanket response. I don't remember this particular letter and every letter would need to be treated differently but it wouldn't necessarily be the case that having got a letter like that, that I would have to rush off and do a number of different things." 169. Of relevance to issues of credibility testimony and breach of duty of care, Mr McClintock SC concluded his cross-examination of Mr Schipp with the following questions: "Q. Now I want to ask you one final question Mr Schipp and I do want you to think about it carefully before you answer it? You've looked through the files or what you understand to be what survives of the files in relation to your handling of Mr Mills matter? A. Yes. Q. Looking at those files are you proud of the job that you did for him? A. I am well proud is a bit of a strange term to be asking me, but I'm happy with the work that's been done. Obviously it would have been better if there had been more file notes involved. Ultimately the decision to settle the matter was not mine. Q. But we can take it can we, that your conduct of this matter is pretty typical of the job that you do for your client's in Newcastle, is it? A. Each file is completely different. Q. Mr Schipp, the job you did for Mr Mills was woefully inadequate and in clear breach of the duties that you owed him, wasn't it? A. No it was not." 170. Mr Schipp was asked about the formal authorities the plaintiff signed as part of the instructions to settle the principal proceedings. These documents appear at pages 386-388 of Exhibit "1". These documents were relied upon by the defendants as being indicative of the plaintiff's satisfaction with the level of compensation he was to receive at the time of settlement. On the subject of the plaintiff's subsequent dissatisfaction with the settlement amount, he stated he did not remember any complaint about it, or anything about the case except for the circumstances of the accident, which he had earlier referred to as being unusual. Evidence of Mr Peter Kirby 171. The defendants in these proceedings called Mr Peter Kirby to give evidence. Mr Kirby is the barrister who was briefed by Bale Boshev to represent the plaintiff in the principal proceedings. Mr Kirby had received his instructions from Mr Schipp. 172. Mr Kirby was admitted to practise as a solicitor in 1973. He was admitted to practise as a barrister in 1983. At the time of the events in question, he had 29 years of legal practise behind him, 19 of those years being in practise as a barrister. In 2001 and 2002, Mr Kirby had a specialised practise primarily in the field of personal injury cases. In evidence he stated that in 2002, he believed he had received more than 100 briefs from Mr Schipp to represent and appear for the clients of Bale Boshev in similar cases. 173. Mr Kirby did not recall the particular proceedings in which he had been briefed for the plaintiff. On having the plaintiff's presence pointed out to him in the courtroom, he did not recognise the plaintiff. He stated that before giving his evidence he was given some medical material to read. That material was not identified in his evidence or elsewhere. The material was not available for inspection at the trial. He stated that in 2002, as counsel, on behalf of clients he had appeared in quite a number of District Court arbitrations in Newcastle. He described the arrangements whereby, normally two arbitrators would sit in Newcastle for two or three weeks followed by a gap of a few weeks, and then followed by a further sittings for two or three weeks. 174. Absent any recollection on his part concerning the plaintiff, and absent any evidence in chief to the effect that he had been given the opportunity of reviewing his entire former brief before he gave his evidence in these proceedings, Mr Kirby was asked to assume he had been briefed to appear for the plaintiff at an arbitration hearing of his case at Newcastle District Court on 1 August 2002. He was further asked to assume that the matter had settled on that day. On these premises, he was asked whether, in July or August 2002, he had any practise about seeing personal injury plaintiffs prior to arbitrations. 175. In addressing that question, Mr Kirby outlined his practice in such circumstances as follows. He said that if there was sufficient time after receiving the brief, he would arrange a conference to see the client a week or two before the hearing. Occasionally he would see a plaintiff on the day of the hearing if it was not possible to have an earlier conference, normally seeing only one such client on those days. He said he would normally see such clients for about three-quarters of an hour. He confirmed that on occasions he took more than one arbitration brief for a hearing on the one day. The exhibits show that on 21 June 2001 Mr Kirby acknowledged receipt of the brief in the principal proceedings : Exhibit "1" p 329. The exhibits also show that on 1 February 2002 he was asked to appear for the plaintiff at the arbitration hearing : Exhibit "1" p 357. 176. Mr Kirby was taken to the documents that comprised volume 2 of Exhibit "1" and he was asked to identify some specific handwritten pages of relevant documents. 177. The first such document was between pages 305-310 of that volume, which he identified as an embryonic chronology in his handwriting, together with some notes, also in his handwriting. He was asked whether, in July/August 2002, he had a practice about preparing a chronology and other documents in relation to a forthcoming arbitration hearing. He then went on to describe that practice. 178. In this regard, Mr Kirby said he would have gone through the brief and would have prepared what he called a rough chronology, leaving some gaps to fill in at the conference with the client, when further information would be obtained from the client. In this regard, he said he would take an outline of the facts and the medical situation, which he explained to mean that he would have read the served medical reports from both sides of the record, and make notes of them. He said he would then form a view as to whether "it was a strong or not a strong medical case". 179. Mr Kirby was taken to page 384 of volume 2 of Exhibit "1" and was asked questions about that document, which he identified as being a draft schedule of damages in his own handwriting. In this regard, he stated that normally, before he saw the client he would draft an outline schedule of damages, and after seeing the client, and after reviewing liability and medical issues, the schedule would be reviewed with the client to explain the components and the suggested figures to open the negotiations. 180. Mr Kirby was then asked to specifically address the schedules of damages he prepared in this case. In this regard his evidence was as follows: "Q. Now, just in relation to figures in schedules of damages you've prepared, could you tell his Honour would they be your opinion of the likely damages, a low range, a high range, something in between. Can you tell his Honour what practise you had at the time? A. I had a practise of putting together what I regarded as being very high figures for the case so that if the plaintiff was acceptable to it is where you could start off the negotiations and it's broken up so that normally at that time the defendant's counsel or solicitor if I was doing it for the solicitor and say how's it made up and that's why I've done that schedule that way." 181. Mr Kirby indicated that it was not his practice to prepare a schedule that represented his actual view of what a client was likely to receive if a matter proceeded to a trial. In this regard, his evidence was as follows: "Q. Well did you ever have a practise at the time of preparing a schedule that represented your actual view of what a plaintiff was likely to get if the matter ran to trial? A. No, I didn't. Q. Did you have any practise, doing the best you can to recall, as at July/August 2002 as to where the, I think you said, figures for negotiation lay compared to what you thought was the likely result if the matter went to trial as a proportion? A. Just roughly about double what I thought a case would be worth. Q. And by that do you mean that the figures you prepared on the schedule would be about double what you thought the case was likely to get if it went to hearing? A. Approximately, yes. Q. Having regard to the practise that you've described to his Honour, what do you say to the suggestion that you would've used a schedule like that as your actual view as to what was likely to be obtained for a plaintiff for the hearing if it continued? A. I wouldn't have suggested that that's what I thought the case was worth, if that's what you mean." 182. Mr Kirby explained that, on occasions, he prepared figures in the presence of his instructing solicitor and sometimes before he saw the client and the solicitors. He stated that when "the figures were filled in the conference" this was not always done with an instructing solicitor present. 183. Mr Kirby interpreted his notes at page 384 of Exhibit "1" to confirm that he had given consideration to the following heads of damage in the principal proceedings: + Non-economic loss + Past economic loss + Future economic loss + Out-of-pocket expenses + Future out-of-pocket expenses + Superannuation contributions, without differentiation for the past and the future + Fox v Wood 184. Significantly, Mr Kirby identified the fact that the figures appearing at page 384 of Exhibit "1" were incomplete because an estimate for the Fox v Wood component had to be obtained from the defendant's solicitors, and the future out-of-pocket expenses had to be obtained after speaking to the client, and therefore these components had been left in a blank form in his schedule. In other words, he had intentionally left these components blank for those reasons. 185. Again reverting to a general discussion as to his usual practice in personal injury claims concerning what he believed he would have told his clients on the morning of an arbitration hearing in July/August 2002 at Newcastle District Court, Mr Kirby said it was his usual practice to advise his clients of the following matters: (a) An arbitration hearing was not like a normal court hearing; (b) There would be 3 or 4 cases listed before each arbitrator; (c) The cases would be dealt with more informally than in court; (d) Although evidence and cross-examination would occur, it would be short; (e) Either party could apply for a rehearing in court if dissatisfied with the result; (f) The likely course of negotiations; (g) The need to satisfy a "15 per cent" threshold to obtain economic damages; (h) An explanation of his view of whether or not there was a strong liability case; (i) An explanation of his view of whether or not there was a strong medical case; (j) Retained workers' compensation rights where a common law claim failed; (k) Settlement offers would be inclusive of costs plus compensation payments; (l) Only a proportion of costs would be recovered in the event of a successful claim; (m) An unsuccessful claim would result in a liability to pay the defendant's costs; (n) His overall view of the case. 186. Obviously, other matters would have to be discussed at such a conference, including matters raised by a client, or other matters, including correspondence and documents that required discussion. 187. Mr Kirby stated that he did not think he kept a record of his overall view of the case in the normal course of events. He was taken to page 461 of Exhibit "1" which comprised Mr Arnold's record of the negotiations. Mr Kirby said those notes did not assist him to recall anything with regard to the events in question. 188. Significantly, Mr Kirby said he did not recollect anything being said at any time about video evidence in relation to the principal proceedings. 189. Mr Kirby was cross-examined at length by Mr McClintock SC. He acknowledged that he had known for some time that he would be required to give evidence. He said he had checked his diary for the events of 1 August 2002 and ascertained that he had "about three or four other matters listed" on that day. He said he had not brought his diary with him to court when he gave evidence. There was no suggestion it had been required by notice or subpoena. He stated that a review of his diary did not reveal a conference with the plaintiff and Mr Schipp. He said he recalled there was another conference fixed for about 4:30pm or 5:00pm on that day. 190. Mr Kirby confirmed that in the absence of a recollection of the events, all of his evidence in chief was exclusively based on what he believed was his practice in 2002. He acknowledged that all cases were different. He said he did not always modify his practice for exigencies such as concerned the matters raised in this case. 191. Mr Kirby acknowledged that in the case of a client who had particular difficulties in understanding issues, a fuller explanation would probably have been given. He agreed with the proposition that it was critical for the client to understand the process in order to be able to make informed decisions. He acknowledged that it was the client who was the master in the sense that the client had the final say, and that he was aware of this notion in 2002. 192. Mr Kirby agreed that after informing himself by reading the brief to form a view on the liability and medical issues, he would at some stage do some figures based on the liability and medical material, on what he thought was a reasonable approach to the case and then go through this with the client. This was a matter that required analysis in context. His actual evidence to this effect was at T 170 to T 171 as follows: "Q. And that you were also aware, weren't you, that it was critical that the client's decision be an informed decision. That's right, isn't it? A. Yes. Q. And can I just understand how you informed the client according to your practice I withdraw that. I just want to understand how you came to a view as to what a potential what a claim was worth in the particular circumstances of the claim? What did you do? A. Well I'd inform myself as to the liability aspect of the case, I'd look through the medical material and see what sort of a medical case it was, then I'd at some stage do some figures based on that, on what I thought was a reasonable approach to the case, that had I had to go through then with the client. Q. And you'd write those figures down, wouldn't you, Mr Kirby, as the figures that you were going to go through with the client to explain to the client what the case was worth? A. I usually did that. Sometimes I went through them with the client. Q. The reason of course for doing that was obviously if you'd read the brief you needed to have an aide memoire of what the figures were because you wouldn't be able to keep them in your mind. Correct? A. That's correct. Q. And you wanted to explain accurately for the client the amounts of money that you thought the client could reasonably expect to obtain in the matter. That's correct, isn't it? A. The figures I'd write down were figures that I'd explain to the client were figures that I suggest we put as an opening offer to the plaintiff, not that I the figures I thought the case was worth. Q. What I want to understand and I'll ask you to address your mind to this, Mr Kirby, is what you did to inform the client of what you thought the case was worth so that the client could make an informed decision as to the offers to be put. What did you do? A. What I did I put together these figures, that I'd explain the high figures that I'd expect to get from your case, often I said I'd often I don't my practise generally, would be to say put much higher figures than I'd expect to get. I'd explain that to the client. Q. Let's be absolutely clear about this and forgive me if I'm repeating myself but I do want to understand this. You read the brief you say as a matter of your practise? A. Yes. Q. You read any accident reports, you read the medicine or the doctor's reports, didn't you? A. Yes. Q. The purpose obviously of that was to inform yourself as first to liability and second as to in relation to medical reports, as to the extent of injuries likely to be found. That's correct, isn't it? A. Yes. Q. And once you'd done that and no doubt you looked at any information in the brief as to the wages or salary of the plaintiff. That's correct, isn't it? A. Yes, whatever material was there. Q. Whatever material's there. And that was of course so you could inform yourself for example as to likely amounts of past economic loss and future economic loss. That's correct, isn't it? A. That's correct, yes. Q. And once you've done those things I take it that you say to his Honour that you came to a view, no doubt a range as to what you thought was the likely amount that the client would recover if the proceeding ran to finality. That's correct, isn't it? A. Yes, I'd form a range of figures in my mind. Q. Yes, but the range being the range as to the likely amount the plaintiff would recover in the proceedings. That's correct, isn't it? A. Yes, within a range, yes. Q. What I want to understand from you now, Mr Kirby, is what you did to communicate that range to a plaintiff according to your practise? A. I'd say to the plaintiff that we're going to put these high figures to the defendant and see what their response is, but I think your case is really worth something like in this range. Q. Right and you told verbally, did you, the client a range without writing it down on a piece of paper, is that the case? The range that you thought was likely to be obtained as opposed to what you say was the opening offer? A. I'm sure sometimes I'd write it down on a piece of paper, but it's not in these papers. Q. You've had a look at the notes prior to giving evidence in these proceedings, haven't you? A. I have, yes." 193. The absence of the availability of a piece of paper of the kind possibly containing the figures to which Mr Kirby made reference in the above extract of evidence was not further explored or explained during the course of the hearing. 194. Mr Kirby was taken through his notes appearing at page 305 of Exhibit "1" and he confirmed that he had made a note referring to "12 MO", meaning 12 months, "spinologist" and "the physical application of force", which was incorrectly recorded in the transcript at T 173 as the application of "course". I infer from these references that the plaintiff had either disclosed, or Mr Kirby had raised and was exploring, the plaintiff's training as a spinologist. The fact of the plaintiff's involvement in the practise of spinology had been a matter upon which Mr Kirby had already been briefed at an earlier point in time when he was provided with a copy of a letter from the plaintiff which was dated 1 October 2001, as is evident from page 345 of Exhibit "1", which bore the date 19 October 2001. 195. Mr Kirby was taken to the original documents that comprised Exhibit "1" and agreed that some of these notes were written before the conference with the plaintiff and some were written during that conference. These notes from page 309 of Exhibit "1" confirm that in the conference on 1 August 2002 Mr Kirby had reviewed some factual matters with the plaintiff, including the nature of the work the plaintiff was carrying out when he was injured, and some of the details of the mechanism of the injury. 196. Mr Kirby disagreed with the proposition that the range of figures contained in the schedule of damages referred to in paragraph 4.2 of the defence filed in these proceedings, which he intended to be handed to the arbitrator in a more tidy form when addressing him, was "something fraught with danger of misunderstanding on the part of the client". He disagreed with the proposition because he stated he would have explained more than just those figures. 197. Mr Kirby agreed that the figures on page 252 of Exhibit "1", which appeared to form a part of the plaintiff's instructions to his solicitors, and which I infer would be the sort of thing a barrister in Mr Kirby's position would have had included in his brief in one form or another, revealed the plaintiff's daily income rate in the employ of M & R Tremain Pty Ltd at the time of the injury, to be of the order of $240 per day, which, according to the workplace agreement in the tender bundle, equated with weekly income of $1680 for a 7 day week. This information had been obtained by the organisation called Voices, which had referred the plaintiff to Bale Boshev. Mr Kirby stated that he could not recall ever having seen that document before, and did not accept that at his conference with the plaintiff he was aware the plaintiff's wage at the time of the injury was $1600 per week gross. The document appears at page 315 of Exhibit "1". Clearly, Mr Kirby had not been shown the statement of particulars filed on 17 May 2001 pursuant to District Court Rules Pt 9 r 27A, which formed part of his brief. Paragraph 9 of those particulars stated a claim for loss of income at the rate of $1600 per week. 198. When Mr Kirby was taken to a copy of the statement of particulars filed in the principal proceedings, as copied at page 29-31 of Exhibit "1", he then acknowledged that he had been briefed with that document. He then accepted that after seeing that document, he would have been aware of the income figure of $1600 per week. 199. That acknowledgment was then followed by further cross-examination on Mr Kirby's draft quantum figures for past economic loss. Mr Kirby acknowledged that he had made a calculation in his own handwriting to the effect that the plaintiff's claim for past economic loss was for 78 weeks from the time of the injury until the time of the arbitration hearing, at the rate of $1600 per week gross or $988.60 net, yielding a calculation of $77,110 net. In my view, this was a most significant acknowledgment, and was relevant in assisting to determine the true nature of the schedule prepared by Mr Kirby in the absence of an actual recollection on his part, and whether, in this case, he had adhered to his described usual practice for such cases. 200. When the calculated figure of $77,110 was explored by further questioning, Mr Kirby stated that he did not accept that this was the figure the plaintiff could expect to receive from the case on account of past economic loss. In this regard, he stated that this was a figure that he had employed in order to try to maximise the case. In this regard, he acknowledged that there was no record identifying any lower range figure for past economic loss, and he had no recollection on the issue. 201. Mr Kirby agreed that his schedule concerning the issue of the identification of the appropriate percentage of a most extreme case for the assessment of the claim for past economic loss contained two percentages, namely 30 per cent and 25 per cent in the context of his evidence that a finding of 15 per cent was the required threshold for establishing an entitlement to economic damages. Given that at the time, the maximum figure for non-economic loss was $246,900, these percentages equated to a range of $74,070 to $61,725. 202. In this regard, in cross-examination by Mr McClintock SC, the following exchange occurred: "Q. Mr Kirby, the truth is this isn't it, on your assessment of the evidence in the brief you had, you came to the conclusion that the range was 25 to 30% of Mr Mills most extreme case, and that's why you wrote that down? A. That's not right. Q. Well can you think of any rational reason other than that, that would have led you to record those figures in that way? A. Yes as I'm putting together the highest figures I can possibly put together by way of an offer – an opening offer for the defendant - that's what I've done." 203. Mr McClintock SC took Mr Kirby through his handwritten notes which comprised the figures he had written out and which were copied as part of Exhibit "1". Mr Kirby disagreed with the suggestion that his note to the effect of $300,000 inclusive of costs and clear of workers' compensation payments represented his settlement recommendation to the plaintiff. Instead, Mr Kirby stated that this figure represented his recommendation for an opening offer "to start off the negotiations". 204. Mr Kirby explained that when he conferred with a client and was to give advice as to settlement prospects and likely achievable results of negotiations in a case, and the instructing solicitor was not present, his normal practice was to wait until the solicitor came to his chambers, or if the solicitor did not come to his chambers, and if he saw the solicitor at court, he would speak to the solicitor in the presence of the client to make sure everyone knew "what we were doing; where we were going. So we'd be speaking with one voice. That's what I'd normally do". 205. Mr Kirby was further cross-examined about his quantum calculations appearing at page 384 of Exhibit "1" and it was put to him that at some point he must have added up the figures to arrive at a top and bottom range, he initially stated that he added the figures roughly, knowing that they did not add up to $300,000, which was when he came to the view, on the medical evidence, that it was a reasonable approach to starting negotiations. When that evidence was further explored, he agreed that he was not suggesting that he actually recalled those steps, and he was instead referring to what had been his practice at the time. 206. Mr Kirby indicated that he was no longer in close contact with Mr Schipp, and in answer to the question of whether he was still doing "lots of work for him", he said he was not. 207. Mr McClintock SC took Mr Kirby to the figures he had noted in the schedule appearing at page 384 of Exhibit "1". Mr Kirby agreed with the suggestion that the actual figures totalled $464,000. The following questions and answers then ensued: "Q. You see, the actual figures involved are it's about $464,000 isn't it? A. Yes. Q. Which would represent in your mind, the top of the range wouldn't it? A. Well I thought that that figure was just too high for this case. Q. Again, that's not something that you actually record, is it? A. No its not, no." 208. I took the word "record" in the last quoted question to be a mistranscription for "recall". Given the overall context of Mr Kirby's evidence that he could not recall these events, the difference is of no importance. His evidence continued: "Q. But why did you say that "You thought it was too high" if you have no actual recollection Mr Kirby? A. Well after reading through the medical material I've been given in relation to this case. Q. I see. A. Between doctors I don't think the case is worth anything like 400. HIS HONOUR Q. Just so I understand your evidence on this? When you say "When reading through the medical material" do you mean at the time you had the brief or A. Sorry, no since I've been asked to appear I've been sent a copy of the medical material and I've re read it. MCCLINTOCK: I call for what Mr Kirby was provided by way of medical material? DICKER: Well I don't have it your Honour, I don't know whether Mr Kirby has it with him? WITNESS: I don't have it with me. HIS HONOUR: Is that going to cause you any inconvenience Mr McClintock? MCLINTOCK: No, your Honour DICKER: He can certainly use the defendant's bundle and ask him if he wants? MCCLINTOCK: No it does not. Q. Now again, if you take the bottom figures Mr Kirby, you've got 61 and 77 again, and 169 plus the 30 for the superannuation past and future? A. Yes. Q. And you'd agree with me that that adds up to 337,000? A. I accept what you say, I haven't added up myself. That would be about right, yes. Q. Again, that's the bottom of the range as recorded on this sheet isn't it? A. On those figures, yes. Q. Yes, and again I want to suggest to you that that was the range of fact that you gave to the plaintiff? About 337 or I'll put it like this? Mid 300s to mid 400s? You don't recall do you? A. I don't recall. Q. But if you told the plaintiff what appears on this document, it would strongly suggest wouldn't it that that is the range you gave the plaintiff? A. No, I think that that 300 CI at the bottom right hand corner is the figure that I've written down there that I've said that I put that I suggest to the plaintiff that we put. Would your Honour just excuse me? HIS HONOUR: Yes, certainly. MCCLINTOCK Q. Just assist me with one perhaps final figure, subject to checking my notes Mr Kirby? Forgive me, but I find it personally and I'll explain that difficult to understand why in accordance with your practice, you would record these figures at all. Would you tell us, perhaps again, why according to your practice you created the document that appears at p 384? What were you going to do with it after you wrote those down? A. I basically do it so that I can have some figures to negotiate with, to start from. I'd have some figures to explain to the plaintiff why we were starting at a much higher figure than I expected to achieve if the case was to be settled. Your Honour I've got nothing further." 209. It was difficult to reconcile Mr Kirby's evidence in which he stated that he proposed high range figures to start the negotiations, being figures of the order of $464,000 with his evidence that the figure of $300,000 inclusive of costs but clear of workers' compensation payments was a figure "to start off the negotiations" as that was not, on his explanation, a high range figure within the parameters he had identified. That said, at this point in time, on the evidence given in this case, and in the absence of informative records, it is not possible to reconstruct with accuracy the negotiating strategy that was either planned or adopted. 210. In order to understand the context and content of the evidence given by Mr Kirby it is necessary to describe the chronology of the evolution of his brief. 211. On 21 June 2001, Mr Kirby wrote to Mr Schipp to acknowledge receipt of the brief. In his letter he asked to be advised of a hearing date and said "I will arrange to see your client to get through the matter" : Exhibit "1" p 329. Thereafter, Mr Schipp variously wrote to Mr Kirby on 28 June 2001, 3 July 2001, 6 August 2001, 19 October 2001, 8 November 2001, 28 November 2001, 15 December 2001 and 27 December 2001, each time adding material, mainly medical reports, to the brief : Exhibit 1 pp 330, 331, 336, 345, 350, 352, 354 and 355. 212. On 1 February 2001, Mr Schipp wrote to Mr Kirby to advise that the arbitration hearing date had been fixed for 1 August 2002. At that time he requested Mr Kirby to appear at the arbitration : Exhibit "1" p 357. Subsequently, Mr Schipp wrote to Mr Kirby on 7 February 2002, 8 February 2002, 26 March 2002, 1 May 2002, 26 June 2002, 10 July 2002 and 30 July 2002. These letters variously enclosed medical reports, income-tax returns and correspondence for inclusion in Mr Kirby's brief : Exhibit "1" pp 358, 359, 361, 362, 373, 375 and 381. 213. The exhibits in this case identify only 3 letters from Mr Kirby to Mr Schipp, these letters being 21 June 2001, at which time Mr Kirby acknowledged receipt of the brief; 18 January 2002 at which time Mr Kirby gave advice as to whether or not a medical report from a Dr Guttmann that had been sent to him on 15 December 2001 should be served on the opposing side; and 2 August 2002, at which time Mr Kirby returned the brief together with a memorandum of his fees : Exhibit "1" pp 329, 356 and 393-394. 214. Neither the exhibits nor the oral evidence revealed whether or not the instructing solicitors had arranged a conference with Mr Kirby on an occasion earlier than the conference that took place at about 9.00am on the morning of the scheduled arbitration hearing. 215. The evidence does not disclose whether the instructing solicitors had obtained any written advices from Mr Kirby dealing with the overall merits of the principal proceedings, or any aspects of liability, damages and quantum. The evidence does not disclose any notes taken by the solicitor in relation to any oral advice that Mr Kirby may have given on these topics. The evidence reveals only 1 memorandum of fees sent by Mr Kirby in the principal proceedings : Exhibit "1" pp 393-394. The only professional services that were identified in that memorandum of fees was the conference and the appearance on 1 August 2002. 216. Any reconstruction by Mr Kirby of relevant events that took place in the lead-up to the compromise of the principal proceedings must be reviewed in the foregoing context. Evidence of Mr Alan Arnold 217. The defendants called Mr Arnold to give evidence. He has been a solicitor since 1983. After spending some years as a partner in the firm Sparke Helmore, in 1998 he commenced self-employment as the principal of the firm Arnolds Lawyers. He has practised extensively in the Newcastle area for many years representing insurers in personal injury claims. 218. Mr Arnold had no actual recollection of the events involving the principal proceedings. He refreshed his memory from a letter he had written to his client insurer and was only able to speak of the relevant events within the terms of the matters stated in that correspondence, as well as drawing upon his usual practise. His correspondence and those notes were respectively copied at pp 410-461 and p 458 of Exhibit "1". 219. The notes made by Mr Arnold revealed to him that the plaintiff's principal proceedings were listed for hearing before an arbitrator, Mr Leo Ryan, at 10.00am on 1 August 2002 and a settlement was effected at 1:35pm on that day. His notes revealed to him that he had briefed Mr Harben as the barrister to represent the defendant in those proceedings. His notes also revealed to him that the barrister representing the plaintiff was Mr Kirby, who was instructed by Mr Schipp. 220. Mr Arnold stated that at the time, he had a usual practice so far as making notes was concerned and he had a usual practice so far as the conduct of negotiations was concerned. 221. Insofar as his notes were concerned, Mr Arnold acknowledged that in a particular respect they did not conform to his usual practice in that he had not made notes as to the times the various offers were exchanged during the course of negotiations. 222. With regard to the conduct of negotiations, whilst Mr Arnold had no recollections as to what had occurred on the day, apart from discussing the matter with the barrister he had briefed after receiving instructions from the insurer client, he never participated in settlement negotiations. In this regard he said that he could not say categorically who was present during negotiations, but his normal practice and the practice of Mr Harben was for negotiations to proceed between counsel. 223. Mr Arnold related how, in the letter of report he had sent to the insurer following settlement, he had recorded a comment as follows: "However, the writer felt that the amount offered to the plaintiff was more than reasonable in the circumstances, particularly considering the plaintiff's veracity" 224. Mr Arnold was not able to expand upon the basis of that comment other than to note that it had been included in his letter to the insurer. He had also noted that his counsel, Mr Harben, held the opinion that the plaintiff's case should be valued at $200,000 clear of payments of workers' compensation payments but inclusive of his legal costs. The basis of Mr Arnold's comment as to the plaintiff's veracity is not clear. It may have been based on a suspicious view based on the plaintiff's medical history. Having reviewed the medical evidence assembled by the insurer, which I have reviewed between paragraphs [571] – [615] of these reasons, I consider Mr Arnold's comment may have been reflective of the effect of the insurer's view of those medical opinions. Whatever the basis of Mr Arnold's view as to the plaintiff's veracity, it was not ventilated in these proceedings and the comment can therefore have no probative value in an assessment of the plaintiff's credibility in these proceedings. 225. If anything, the comment serves to support the view that absent the settlement complained of in these proceedings, it was more likely than not the principal proceedings would not have settled and would have gone to trial because no higher figure would have been forthcoming from the insurer, as a stand had been taken by the insurer on settlement. 226. The only reason why I have noted Mr Arnold's comment as to the plaintiff's veracity is to identify it for the purpose of noting that I do not regard it to be in any way influential of my approach to an assessment of the credit of the plaintiff. This is so because, without intending any criticism whatsoever of Mr Arnold, the adversarial position of the defendant's lawyers in the principal proceedings, and for that matter, the insurer, is one of natural suspicion. This is apparent from Mr Arnold's comment to the insurer, for example, at Exhibit "1" p 413.5, which formed part of his 25 July 2001 letter to his insurer client. Mr Arnold's comment was consistent with his earlier recommendation for 14 hours of surveillance : Exhibit "1" p 420.2. However, the basis for his comment remains opaque to analysis. In these circumstances, fairness requires the comment be excluded from a consideration of the credit of the plaintiff. 227. Without intending any criticism whatsoever, despite refreshing his memory of the events by examining his file, Mr Arnold was unfortunately unable to throw any light upon the reasons why the offer of $275,000 that was made on behalf of the plaintiff was reduced to the position whereby the plaintiff's expectations dropped by an amount of $100,000, to enable a settlement to be reached at $175,000 inclusive of costs. 228. Mr Arnold confirmed that an examination of his file revealed to him that there was no evidence of any video surveillance film of the plaintiff's activities. However, he did confirm that there had been an unsuccessful attempt at obtaining such film of the plaintiff's activities. The details of these attempts were not further explored in the evidence. 229. Mr Arnold estimated that at the relevant time, the number of active files he could have been managing in his practice "probably would have been between 80, 100 to 200, something like that". 230. Of particular relevance to the pivotal issue in this case, was the evidence that Mr McClintock SC elicited from Mr Arnold concerning the standard of prudent practice that should have been observed by a solicitor concerning the making of notes of significant events occurring in the context of litigation. 231. In this regard, not that I needed evidence for this, but Mr Arnold usefully confirmed that which is widely known and taught in legal practice and in training for legal practice, namely, the purpose of lawyers taking notes to record events in connection with litigation, or generally, was to refresh memory, to track and follow the ebb and flow of negotiations, to have a record for self protection from the opposing side in the event that negotiations break down or something contentious occurs, and, if necessary, as a means of self protection from one's own client, if an issue were to arise as to the nature of the client's instructions. 232. Mr Arnold stated that these comments applied irrespective of whom the solicitor was representing. He also agreed that, as an employer, he would find it very disturbing if a solicitor whom he had employed had failed to make any notes of a significant negotiation. 233. With regard to the negotiations on this particular day, Mr Arnold disagreed with the proposition that the negotiations had been conducted with Mr Shipp on behalf of Bale Boshev, rather than with Mr Kirby as counsel briefed for the plaintiff in the proceedings. He felt he was able to disagree with that proposition "without question of doubt". 234. There is correspondence from Mr Arnold at pp 382-383 of Exhibit "1" which tends to confirm that stance. That was in the context of a facsimile letter sent by Mr Arnold to Bale Boshev at 18:15 hours on 30 July 2002 raising questions to which Mr Arnold sought answers arising out of the plaintiff's history as recorded in a medical report from Dr ED Price. The letter from Mr Arnold concludes: "We appreciate that the above information may not be able to be obtained prior to the Arbitration on 1 August 2002, but we can discuss these matters with your Counsel, Mr Peter Kirby, on the morning of the Arbitration". 235. Mr Arnold's letter suggests that he was anticipating some discussion between either himself or his counsel, or both, on the one hand, and Mr Kirby on behalf of the plaintiff on the other hand. Either way, no reference was made to the discussions being between the representatives of the defendant in the principal proceedings on the one hand, and Mr Schipp on behalf of the plaintiff, on the other. 236. In my view Mr Arnold's letter serves to provide some context for the conference that was convened between Mr Kirby and the plaintiff on the morning of the arbitration hearing where the matters raised by Mr Arnold's letter required a discussion with the plaintiff at that conference. C. FINDINGS ON MATTERS CALLING FOR DECISION 237. In the paragraphs that follow I set out my findings on the issues calling for decision. Issue 1 – Credibility of testimony 238. The consideration of Issue 1 requires the credibility of the testimony given by the respective witnesses. In the paragraphs that follow I set out my credit findings concerning these witnesses. Mr Anthony Tremain 239. In weighing the evidence of Mr Anthony Tremain, I have considered the fact that he is the plaintiff's younger brother, and as such, there was a strong familial bond of allegiance. I gave consideration to the possibility that in such circumstances, there may have been a tendency on his part to pitch his evidence for the purposes of assisting the plaintiff with establishing an advantageous quantum result in the litigation. Whilst his evidence was of obvious assistance to the plaintiff, I nevertheless consider that there was nothing within his evidence that struck me as showing such a bias. I considered his evidence was measured and truthful. He made concessions where appropriate. These considerations led me to accept his evidence, especially given that the content of his evidence was not inherently or glaringly improbable. Mr Mathew Tremain 240. I considered that the evidence of Mr Mathew Tremain was given truthfully. There were no material challenges to his evidence. His evidence was limited by reason of his ill-health at the time of the trial. I considered him to be a forthright and frankly spoken witness. His evidence was principally directed to the work the plaintiff was carrying out at the time his injury. A review of Mr Mathew Tremain's income tax returns for the period 1998 to 2002 clearly shows that he was earning a significant taxable income from primary production and was most likely to have been in a position to afford to employ the plaintiff, particularly in the 2000, 2001 and 2002 tax years : Exhibit "1" pp 301A-301CP. There was nothing about the evidence of Mr Mathew Tremain that caused me to doubt the credibility of his testimony. In coming to that view, I also took into account his strong familial bond to the plaintiff. I nevertheless found no reason to discount his evidence on account of any credit issue. His evidence was not inherently or glaringly improbable. Mr Arnold 241. On behalf of the defendants it was submitted that Mr Arnold was an impressive witness who, as a senior solicitor, was independent and had no partisan interest in the proceedings. It was submitted that Mr Arnold's reporting letters sent to his client insurer and his record of settlement offers made by the respective parties, including the timing of the negotiations on 1 August 2002 which concluded in settlement at 1:35pm on that day, should be accepted : Exhibit "1" pp 410-461 and p 458. 242. The defendants also submitted that Mr Arnold's evidence that there was no video film of the plaintiff in the possession of the defendant should be accepted. On behalf of the defendants it was also submitted that the sum of $175,000 inclusive of costs was the insurer's final settlement offer based on the belief that this represented the commutation value of the claim, being consistent with the opinion of counsel for the defendant in the principal proceedings, who reportedly thought "the case was only worth $200,000". 243. Having considered these submissions, on the issue of video film, I see no relevant issues requiring resolution between the evidence of the plaintiff and Mr Arnold. In my view, the opinions held by the insurer and counsel engaged to appear for the defendant have little if any bearing on the plaintiff's beliefs and motives. The basis of the opinion of the insurer, and the lawyers acting for the insurer, were not issues that required detailed exploration in these proceedings. 244. In my view, although there is a compelling inference that the negotiations in question had been conducted between opposing counsel, as was submitted by the defendants, no issue of substance turns upon whether the settlement negotiations were conducted between opposing counsel, opposing solicitors, or the various combinations and permutations that could possibly arise from the circumstances. 245. I accept the evidence of Mr Arnold that neither he nor his counsel had suggested to any of the plaintiff's representatives that the defendant in those proceedings had video surveillance film of the plaintiff's activities. Whilst noting that the insurer and Mr Harben held opinions on the potential monetary worth of the plaintiff's case, in my view it was not necessary to explore those views. I also note the agreement of the parties that no adverse comment arises from the fact that Mr Harben was not called to give evidence. On behalf of the plaintiff, it was not suggested that Mr Arnold had initiated the "damning video evidence" representation the plaintiff claimed had been made to him by Mr Schipp. 246. In weighing the evidence of Mr Arnold, I considered that his answers to questions were frank and truthful, as would not only be expected of a witness generally, but also in the case of a legal practitioner who had a duty of candour. I considered that on both of these considerations, Mr Arnold's evidence was reliable, and was given carefully and truthfully, to the best of his refreshed recollection. Whilst his evidence was necessarily reconstructed from aided recollection in the form of the content of his litigation file, he avoided entering into speculation, and his reconstructed evidence was largely consistent with the content of his file of professional correspondence. 247. In considering the testimony of Mr Arnold, I had due regard to the fact that he practised in Newcastle and environs as did Mr Kirby and Mr Schipp. I do not consider that Mr Arnold's evidence was anything other than impartial. I formed the view that his evidence was given without regard to any allegiances that might conceivably be seen to ordinarily arise from frequent professional association over time either with Mr Kirby or Mr Schipp. Further, having resolved the principal proceedings for the benefit of his insurer client in a binding settlement, I consider that Mr Arnold had no adverse interest to the plaintiff that could arguably serve to colour his evidence in these proceedings. Mr Kirby 248. Although Mr Kirby was not a party to these proceedings, his evidence was tested and explored. I consider that Mr Kirby gave his evidence in accordance with a legal practitioner's expected duty of candour but with the disadvantage of not having an actual recollection of the relevant events due to the effluxion of time and limited notes. 249. Since Mr Kirby had stated he had no recollection of the plaintiff, the plaintiff's case, or the critical events in question, it was reasonable for Mr McClintock SC, on behalf of the plaintiff, to test and explore that evidence. In this regard, it was not suggested that Mr Kirby had conducted himself in any manner that was inappropriate. The result of my review and consideration of the evidence given by Mr Kirby is that I accept he has no recollection of the plaintiff, the plaintiff's case or the circumstances of the settlement of the plaintiff's case. 250. In some circumstances, after being afforded a reasonable opportunity for refreshment of memory, it might be expected that a barrister would recall some details of a case in which he had been briefed. In the absence of a review of particular products of analysis, such as complex schedules, notes, chronologies, a record of an analysis of exhibits and other documents or other unique markers that are intrinsic to a particular case, the more time that passes since returning the brief would naturally lessen the prospect or extent of a vestigial recollection remaining from the matter, 9 years later. This is the context in which I have to consider the evidence of Mr Kirby. 251. I also had regard to two other factors referred to in the evidence that suggested Mr Kirby's brief may not have remained integral after the principal proceedings had been resolved. The first such matter was Mr Schipp's perception that the papers to which he had been referred when he gave evidence may not have been complete, and second was Mr Schipp's evidence that prior to archiving the completed files of the firm, Mr Boshev had a practice of going through the files in order to tidy them up, including by removing and discarding what appeared to be duplicates or copies of documents. In these circumstances I cannot be satisfied that Mr Kirby's opportunity to refresh his memory was sufficiently comprehensive to have made a material difference in order to bring to light something that could possibly have served to revive a relevant recollection that had diminished over time. 252. Also, in weighing Mr Kirby's evidence, I must have regard to the evidence suggesting the strong possibility that the inter-party negotiations in the principal proceedings were conducted between opposing counsel. Also relevant is the undisputed evidence that neither Mr Arnold nor Mr Harben had any basis upon which to raise or discuss with the representatives of the plaintiff, the subject of video film, damning or otherwise. 253. It is against the backdrop of these considerations that I have come to the view that Mr Kirby gave truthful evidence. I consider that his position in this regard was a reasonable one, especially in the context of him having received over 100 briefs from Bale Boshev in the year 2000. I accept that he had only one meeting with the plaintiff in the principal proceedings, and that was in the context of a 30-45 minute conference on the morning of the arbitration hearing where he was briefed to appear in some 3-4 other matters listed for arbitration on the same day. In these circumstances, Mr Kirby's non-recollection of the plaintiff and his case is, in my view, unremarkable. 254. With one exception, he was careful not to speculate about matters in issue arising from the former proceedings in which he had been briefed. I shall return to this subject shortly. 255. Mr McClintock SC made submissions softly critical of how it could be reasonably said that counsel could have given proper attention to the plaintiff's matter in such circumstances, where he held briefs to appear in 3-4 other matters on the one day. I do not accept this to be a valid criticism in the circumstances for a number of reasons. 256. First and foremost, fairness requires recognition of what was at the time common knowledge in sections of the legal profession as to the prevailing circumstances. At the time, the expectation of the court was for arbitrations to be bulk listed in running lists to get through a backlog of accumulated cases that had not otherwise resolved. To achieve this, cases were listed in groups with the common factor being the identity of the representation of the plaintiff's side, otherwise the system for reduction in the backlog would have been less effective. This necessarily meant that the convenience of counsel had to be suited for the measures to be effective in reducing the burden on the court. In this regard, in 2002, the District Court referred 6,575 matters to civil arbitration : Annual Review, 2002; District Court of New South Wales. 257. Secondly, at the time, arbitration hearings were conducted with very little formality, and in a spirit of co-operation between arbitrators and the legal profession, the aim being to expeditiously get through the work. In that context, evidence was often and acceptably adduced and traduced with a lesser degree of formality than would be the case in a hearing before a judge in the knowledge that in the interests of justice, if a rehearing before a judge was required, this could be readily achieved. At the time, the administrative hurdle for achieving this was very low. Subject to a potential for a costs penalty to arise, the procedure was to simply complete a request form and pay the appropriate fee. This was a very different and much lower threshold course for a dissatisfied litigant to follow, compared to pursuing a formal appeal to the Court of Appeal. 258. Thirdly, courts in this state have for many decades supervised running lists, including where counsel held multiple briefs. Provided the individual cases were properly prepared with due skill, care and attention to the interests of the client, each case took its turn to be called on for hearing in the list, and if the opportunity did not arise for a case to be heard, such not reached cases were stood over in order to be relisted and heard on another listing date. 259. Fourthly, the fact of the 2-week Special Sittings of the Supreme Court from 20 July 1992 is still vividly memorable for practitioners and former practitioners. In those sittings, 5 teams each comprising 7 Judges, as well as 3 Masters, 38 judicial officers in all, were allocated to dispose of nearly 1300 cases. Except for 183 cases which were removed from the list to be determined after the sittings, all cases were disposed of by settlement or verdict. The number of cases disposed of was identified as exceeding the entire number of cases disposed of by the Supreme Court in a whole year. The sittings were pronounced an outstanding success : Annual Review, Supreme Court of New South Wales, 31 December 1992. In those sittings, a large number of common law cases, including some quite complex cases including jury cases, involving the same counsel and solicitors, were listed in groups before particular judges as a matter of administrative convenience to assist in the efficient disposal of the business of the court. 260. Accordingly, I do not accept the albeit softly made criticism of Mr Kirby for holding multiple arbitration briefs, including the brief for the plaintiff in the principal proceedings, on 1 August 2002. 261. On behalf of the defendants, it was submitted that the evidence of Mr Kirby, a barrister of 26 years standing with extensive experience in personal injury litigation involving workplace injuries, was truthful, reliable, independent and therefore his evidence based on considerations of "usual practice" should be accepted. 262. The first part of that submission was unremarkable, and in respect of matters of which Mr Kirby had direct or actual knowledge, I accept his evidence without reservation. Mr Kirby gave his evidence in an open, clear and forthright way, without any relevant conflict arising between his evidence and the evidence of the plaintiff. 263. However, returning to the exception I referred to earlier, and without intending any adverse reflection on Mr Kirby, the second aspect of the submission relied upon by the defendants which invoked the "usual practice" of Mr Kirby requires a closer examination. This is so because of Mr Schipp's concession, that each of his files was completely different. 264. I have no doubt that, as was submitted, in 2002, Mr Kirby had: (a) received more than 100 briefs from Mr Schipp in that year; (b) held either 4 or 5 briefs where he was instructed by Mr Schipp in respect of cases listed for arbitration hearing at Newcastle on 1 August 2002; (c) analysed the brief he held for the plaintiff, and prepared a skeletal draft chronology in the course of such analysis and then added to that draft during his conference with the plaintiff on the morning of the scheduled arbitration hearing; (d) a practice of preparing a schedule with high figures for the purposes of negotiations, in which he included figures that were roughly about double what he thought the case was worth; (e) a practice of telling a client of the range of damages which he thought may likely be awarded. In this regard, he stated that as at 2002, in the course of preparing a case for an arbitration hearing and where it would be necessary to provide the client with advice, he did not have a usual practice of preparing a schedule which reflected his actual view of what a case was likely to be worth to the client. (f) a practice of explaining in detail to a plaintiff what was involved in an arbitration hearing and how the result of an arbitration hearing may affect the rights of the client; (g) a practice of giving a client his overall view of a case; (h) no recollection about anything being said about video evidence in the principal proceedings; (i) no recollection of the events of 1 August 2002 concerning the principal proceedings; (j) no " interest in colouring his evidence to suit the case of the defendants or the cause of Mr Schipp". 265. I accept Mr Kirby's evidence on what he described as being his "usual practice". His evidence was not fundamentally challenged. In my view, no relevant credit issues arise from the evidence of Mr Kirby. 266. Instead, the matters of contention that arise from the evidence of Mr Kirby concern the inferences that the defendants now seek to have drawn from his evidence concerning considerations of "usual practice" and whether the events that occurred in the handling of the plaintiff's principal proceedings were processed by Mr Schipp in accordance with "usual practice". In my view, as a general proposition the evidence in this case has no specific indicia from which a compelling or reasonable inference arises that usual practice was followed. 267. In concluding my consideration of credibility matters concerning the involvement of Mr Kirby in the plaintiff's principal proceedings, I have not overlooked the issue of the reliance by the defendants in these proceedings on the evidence of what was, or was not Mr Kirby's usual practice in handling such matters in 2002, and what inference should reasonably be drawn from that evidence. Where relevant, such argued inferences will be considered in the context in which they arise. I have given consideration to this issue in setting out my reasons for deciding Issue 2 concerning the claimed breaches of duty on the part of the defendants in the present proceedings. My reasons in that regard appear between paragraphs [339] to [444] of my judgment. Mr Schipp 268. On behalf of the plaintiff, Mr McClintock SC launched a concerted attack on the credibility of the testimony given by Mr Schipp. He submitted that Mr Schipp's conduct in this case fell far short of the professional obligations he owed to the plaintiff. In making that attack, and in view of the gravity of the allegations relied upon for that attack, noting the allegations were made against a solicitor in connection with his professional conduct, he properly acknowledged it was necessary to prove the matters alleged to a higher degree of satisfaction on the balance of probabilities : Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. 269. It is therefore appropriate that I set out the detail of the matters raised in the submissions made by Mr McClintock SC concerning the credibility of Mr Schipp's testimony. The allegations are as follows : (a) On 1 August 2002, Mr Schipp was a solicitor with an "over-committed" workload who was making and responding to offers on behalf of a client without the client's instructions authorising him to do so, in circumstances where: (i) he "flagrantly" departed from the standard expectation that he keep file notes of instructions received, as well as of offers made and received; (ii) preferred the interests of the defendants, his employers, to the interests of the plaintiff in effecting a settlement of the plaintiff's case because, by reason of the terms of the costs agreement between the firm and the plaintiff, there was no financial benefit to the present defendants to continue from that point and take the plaintiff's case to a trial, being a rehearing in court, after an arbitration hearing; (iii) he deliberately attempted to get the plaintiff to settle the principal proceedings by saying "something about video evidence in terms of calculated ambiguity intending to give Mr Mills the understanding that the defendant did have such evidence"; (iv) he made a mathematical error in arriving at his advice to the plaintiff as to the extent of the period during which, as a result of the settlement, the plaintiff would be precluded from receiving social security benefits from Centrelink. (b) Mr Schipp was "by no means lacking in cunning" as is apparent from the Centrelink issues, as follows : (i) Mr Schipp had advised the plaintiff that the preclusion period for receipt of benefits would be 52 weeks, which was a calculation that turned out to be erroneous; (ii) knowing he had made an error in calculating the preclusion period for social security benefits, he "consciously decided" not to advise the plaintiff of the fact that Centrelink had altered the estimated preclusion period from his own calculated date of 1 August 2003, to the Centrelink calculated date of 15 October 2004. This was in circumstances where he had not provided the plaintiff with a copy of the correspondence in which his error had been revealed, but instead he concealed his error. 270. On behalf of the plaintiff, Mr McClintock SC submitted that the evidence given by Mr Schipp, concerning his perception that his former file was incomplete, could be construed as being disingenuous. 271. He submitted that the claimed incompleteness of the file was one example of Mr Schipp's cunning, further examples being the submitted façade that he had no memory of the plaintiff, his file or the circumstances of the settlement. In this regard, Mr McClintock SC submitted that I should infer from the fact that Mr Schipp concealed from the plaintiff the knowledge of his error concerning the preclusion period, that Mr Schipp was capable of exercising the degree of cunning required to conceal the true position in order to avoid embarrassment. It was submitted that those inferences could be drawn from these circumstances. 272. It was also submitted that I should infer from Mr Schipp's at times angry demeanour during cross-examination, on topics that were obviously unpleasant or uncomfortable for him, that this was an indication of his lack of candour in giving evidence. 273. All of these matters, both individually and in combination, raised serious questions that required rational consideration of any assessment of the credibility of the testimony given by Mr Schipp. 274. At the outset I should deal with the issue of Mr Schipp's demeanour, as it was the subject of comment. In addition to reminding myself of the usual cautions against making demeanour-based assessments of credibility of witnesses, Mr Dicker submitted that the anger or irritation displayed by Mr Schipp when he was cross-examined should not be regarded as a matter that should be found to be adverse to his credit. It was submitted that this should be so because Mr Schipp's reaction was understandable, given the serious nature of the allegations made against him on behalf of the plaintiff. On behalf of the defendants Mr Dicker submitted that the scrutiny of cross-examination was a sufficient explanation for Mr Schipp's display of guardedness, irritation and anger. I consider that submission to have force. Accordingly, I do not make any adverse credit findings concerning Mr Schipp based on an assessment of his demeanour. Instead, I will analyse the evidence. 275. I consider that the first fundamental matter that adversely affects the credit of Mr Schipp as a witness is that of his dealings with his client. In my view, he lacked the candour and probity expected of a solicitor who had made an error in his professional dealings with his client's affairs, namely with regard to the Centrelink issues. 276. In this regard, there is no doubt that Mr Schipp had made an error in calculating the applicable preclusion period during which the plaintiff would be unable to obtain social security payments from Centrelink. The error in question occurred in the calculations he made on 1 August 2002, in which he estimated the preclusion period to be 52 weeks. Any legal practitioner practising in the field of personal injury litigation ought to have known that according to the applicable formula for calculating preclusion periods, the relevant calculation was in fact longer than 52 weeks, as turned out to be the case. 277. The fact that Mr Schipp made such an error is not the relevant issue that affects his credit. No-one in professional life is immune from making unintended errors. On the evidence, I am satisfied that the calculation error made by Mr Schipp was unintentional on his part. Whilst the error involved inconvenience and financial disadvantage to the plaintiff, of itself it would not support an adverse credit finding and of itself, it would not necessarily support a finding that there was a relevant breach of duty of care. 278. In my view, the true significance of the Centrelink preclusion period issue, so far as the credibility of Mr Schipp is concerned, is to do with the manner in which he dealt with his error once he had discovered that it had been made, and that it would operate to the financial disadvantage of the plaintiff. 279. As a solicitor with fiduciary obligations to the plaintiff, including the duty of candour, I consider that Mr Schipp was obliged to inform the plaintiff not only of the fact that a calculation error had occurred at the time that settlement advice had been given to the plaintiff, but to also inform him of the effect of the error, namely that the plaintiff would be precluded from receiving Centrelink benefits for more than twice as long as had earlier been reckoned at the time settlement advice had been given to him. In this regard, I consider that Mr Schipp did not discharge that duty in the manner expected of him as the solicitor acting in the plaintiff's best interests. 280. Instead, Mr Schipp allowed the record of his correspondence with the plaintiff to be left in a misleading state which concealed his error. I consider that he did so deliberately, as is evident from the documents. 281. Following the settlement, Mr Schipp was provided with correspondence dated 23 August 2003 from Centrelink stating that the preclusion period would be from 22 December 2001 to 15 October 2004, and not 52 weeks from 1 August 2002 as was originally reckoned by Mr Schipp. Surprisingly, Mr Schipp did not provide a copy of this correspondence to the plaintiff for his information and financial records, nor did he advise the plaintiff of the fact of the error, which by then must have been clearly evident to Mr Schipp. Instead, on 10 September 2002, Mr Schipp wrote to the plaintiff to advise that there was a less than estimated Centrelink repayment without mention of the altered preclusion period. His characterisation of this was in the following terms: "… You will note that the above amount has been repaid to Centrelink. This was somewhat less than estimated by the writer at the time of settlement which is obviously a pleasing result for you." 282. The correspondence dated 10 September 2002 from Mr Schipp to the plaintiff, which in my view clearly shows that Mr Schipp gave consideration to the Centrelink correspondence dated 23 August 2002, leads me to the compelling inference that Mr Schipp not only made a decision not to advise the plaintiff that the preclusion period would continue until 15 October 2004, but chose to misleadingly describe the outcome of the Centrelink correspondence as a "pleasing result". 283. I am comfortably satisfied on the balance of probabilities that the foregoing matters concerning Centrelink issues objectively reveal that Mr Schipp failed in his fiduciary obligations to his client, and that he did so deliberately in order to conceal his error, as his correspondence to the plaintiff tellingly demonstrates. In this regard, I accept the submission made on behalf of the plaintiff that a necessary consequence of these matters is a finding that Mr Schipp's credit and probity as a solicitor must in this instance be regarded as having been successfully impugned. 284. The next fundamental matter that affects the credit of Mr Schipp is the consequence of the above finding. Being satisfied that Mr Schipp's conduct concerning his concealment of the Centrelink error was deliberate, and carried out from a position of advantage over his lay client who was in a position of vulnerability relative to Mr Schipp, it remains to consider the motivation behind Mr Schipp's conduct in other respects. 285. On behalf of the plaintiff it was submitted that Mr Schipp displayed cunning in his dealings with the plaintiff. In my view, the findings I have made demonstrate that Mr Schipp had the capacity to deceive his client on a fiduciary issue, which required cunning, and that he exercised that capacity in the circumstances of the plaintiff's case. In that sense, he did display cunning. In my view, this was also evident from an aspect of his oral evidence. 286. Mr Schipp's oral evidence was based on the stance that he had no recollection of the plaintiff, the plaintiff's case, the negotiations leading to the settlement of the case or the circumstances of the settlement, but had some limited recollection of the description of the circumstances of the plaintiff's injury, because the circumstances of the plaintiff's accident were unusual. He repeatedly pointed out his lack of recollection when answering questions, reverting to evidence of his own "usual practice" and his understanding of the "usual practice" of Mr Kirby in dealing with such cases. 287. A serious question arises as to whether this stance was based on a genuine absence of recollection on Mr Schipp's part, or whether it was a convenient subterfuge utilised by him to avoid having to face and explain difficult questions concerning his conduct of the plaintiff's case, in circumstances where he failed to keep any file notes of significant events occurring in the litigation. It is useful to make comparative reference to the evidence of Mr Arnold, who was an experienced and senior solicitor. Mr Arnold agreed, albeit in abstract, that the failure of an employed solicitor to make such notes was regarded by him as being a very disturbing circumstance. 288. I find that Mr Schipp's lack of recollection of the plaintiff and the plaintiff's matter, even after an examination of his former file, to be incredible. 289. I find it difficult to believe that an experienced solicitor, without evidence of infirmity on his part, would not be able to reconstruct any detail of any relevant events from an examination of the documents in his former file. I find this to be especially so in circumstances where he had the sole carriage of that file from the inception of the litigation to its conclusion over a period of some 16 months. I do not make this finding lightly. I consider that my finding in this regard is supported by an aspect of Mr Schipp's evidence by which I consider he inadvertently revealed that he did in fact have a relevant recollection of the matter, notwithstanding his other evidence to the contrary. 290. In this regard, I consider the relevant evidence which inadvertently revealed that Mr Schipp had a recollection of events despite his repeated statements that "I don't remember the day at all" : T 216.4, was when he answered questions concerning Mr Arnold's record of settlement negotiations. In this regard, he said "we talked to him about the offers that had been made and what he wanted to do with respect to making a counter offer" : T 219.49. In this context, "him" obviously referred to the plaintiff. In my view these two positions that were articulated within the evidence of Mr Schipp are irreconcilable where Mr Schipp did not claim to have a recovered recollection. This leads me to the conclusion that Mr Schipp was not being truthful in stating that he had no recollection of the day or the events of the day. 291. I consider that his answer regarding a recollection of the negotiations on the day in question was given in an unguarded and candid moment. I consider this revealed that he did have a relevant recollection, which he in fact called upon in aid of defending his position when he felt he was under attack. I consider that this small but important piece of evidence serves to discredit Mr Schipp's evidence in this case concerning his claimed lack of recollection of relevant events. I consider that his asserted position of having no relevant recollection of the relevant events was a position that was adopted by him to avoid the embarrassment of having to speak in detail of the manner in which he had dealt with the plaintiff's principal proceedings and the manner in which he dealt with the plaintiff in the lead-up to the settlement of those proceedings. 292. In coming to this view, I consider Mr Schipp's position to be in a vastly different category to the lack of recollection of events as was attested by Mr Kirby. As counsel for the plaintiff in the principal proceedings, the evidence shows that Mr Kirby held the brief to attend the arbitration hearing since 1 February 2002 : T 158.12. He had only met the plaintiff once on the morning of the arbitration, following which he returned the brief after the settlement. He apparently did so without drafting any significant documents or without leaving any detailed record of his analysis of the case, other than a skeletal draft of a chronology and some handwritten notes of a range of quantum figures that were necessarily left incomplete at the conclusion of the conference. The preparation of detailed documents of the kind to which I have referred might in some circumstances be expected to have served to lay down some degree of memory that was able to be refreshed or revived to assist in the reconstruction of events. However, in my view, in the context of this case, given the limited contact Mr Kirby had with the plaintiff, and given the differences in the respective roles of those involved in the principal proceedings, unlike the position of Mr Schipp, Mr Kirby's lack of recollection of the plaintiff and of the plaintiff's case seems unremarkable. 293. I consider that a number of matters affecting Mr Schipp's credit as a witness follow on from my finding concerning his recollection of the events in question. 294. First, there is the matter of Mr Schipp's claim that he was not satisfied he had been shown his complete former file. Mr Schipp stated that Mr Boshev had a practice of tidying up and filleting files for archiving after completion. This involved removing duplicates when tidying the files in readiness for archiving. I consider that an examination of Exhibit "1" and Exhibit "A" reveals that the file of the plaintiff's matter was in fact available. Exhibit "A" contains correspondence from the defendants' firm forwarding the "file" to the plaintiff's present solicitors. 295. An examination of these exhibits reveals that they contain materials that would be expected to be housed within a solicitor's litigation file, namely pleadings, particulars, medical reports, key documents, tax returns and correspondence. Whilst the file contains no statements, neither did the brief Mr Schipp sent to Mr Kirby : Exhibit "1" p 328. I consider that Mr Schipp's reference to the file being incomplete was an attempt on his part to try and deflect and avoid the criticisms that were made of his conduct in cross-examination. 296. This view is evident in connection with his answers to questions concerning whether he had particularised for the plaintiff a claim for loss of earning capacity as a spinologist. He avoided answering the question by saying his file was incomplete. I considered his answer to have been evasive because he had access to the particulars filed in the principal proceedings and he also had available for his review the letter from his client dated 1 October 2001, elsewhere referred to as being dated 10 September 2001. That letter, a copy of which appears in the materials within Exhibit "1" p 341, attached a list of matters for particularisation, including as follows : "7. Work – Lost the ability to do all the work I have been trained for all have experienced in, including; all farm work, truck driving, machine operating, Spinology." 297. There is no issue that Mr Schipp had reviewed this letter. He had forwarded a copy of it to Mr Kirby on 19 October 2001, describing it as "1. Letter from Howard Mills dated 1 October 2001" : Exhibit "1" page 345. It was obvious from the exhibits in this case that such a claim had not been particularised. At page 31 of Exhibit "1" the filed particulars made an oblique claim for a loss of opportunity to earn money from self-employment without specifically particularising spinology practise, as was required : Particulars para 11. 298. In the circumstances, I consider Mr Schipp's attempt at avoiding the question involved him giving an evasive answer, which I consider to be a circumstance that reflected poorly on his credit. 299. Secondly, I consider Mr Schipp's retreat to matters of "usual practice" was selective and invoked by him in an attempt to shelter himself from criticism as well as attempting to in some way inculpate counsel with some responsibility for the events in question. I base this conclusion on my analysis of the evidence Mr Schipp gave as to his own "usual practice" and his understanding of the "usual practice" of Mr Kirby concerning such litigation. I have summarised that evidence at paragraphs [127]-[128] of my judgment. 300. It is readily apparent that when Mr Schipp was speaking of his own "usual practice" he made reference to 4 basic aspects of his practice regarding conferences with clients in the lead-up to an arbitration hearing : paragraph [128(a)-(d)]. In contrast, he made reference to some 20 items of professional attendance which he claimed comprised Mr Kirby's usual practice at such conferences : paragraph [129(a)(i)-(xxi)]. I gained the impression that, in giving that evidence, Mr Schipp was attempting to shift to, or to seek to have shared with counsel, the moral blame for his abnegation of his responsibilities to advise, inform and assist his client. It is relevant to note that counsel was not a party to these proceedings. 301. Thirdly, in my view, it was somewhat unrealistic for Mr Schipp to assume that the 20 or so areas of detail that he said counsel would as a matter of "usual practice" review with a client in conference, would be satisfactorily completed to the required professional standard in a single 30-45 minute conference on the morning of an arbitration hearing. The 20 or so items of professional attendance were obvious topic headings that covered a potential myriad of underlying issues and questions. 302. Even allowing for a range of individual differences amongst legal practitioners for acceptably brief conference styles and communication skills, I find it difficult to accept as a general proposition that the discussion and disclosures required to be ventilated in conference concerning the identified topics could be reasonably and satisfactorily completed within 30-45 minutes, whilst also allowing adequate time for questions, obtaining instructions, plumbing the depths of client expectations and to iron out potentially difficult issues or matters of history that inevitably arise in the course preparing a case for an arbitration hearing, including the important task of preparing the client to give evidence, with all that entailed. I consider this is particularly so given the complete absence of any factual statements in counsel's brief. 303. Furthermore, as is evident from Mr Arnold's letter dated 30 July 2002, the conference scheduled to take place between the plaintiff and Mr Kirby was not a standard one that would suggest "usual practice" was followed, because it would have been necessary for Mr Kirby to spend some of the time allocated for the conference to deal with the matters of historical detail that had been raised by Mr Arnold in his letter : Exhibit "1" pp 382-383. This is especially so since there is no evidence that Mr Schipp had attended to this task beforehand. 304. Fourthly, I considered that Mr Schipp's description and his resort to matters of "usual practice" was somewhat artificial in the context of the principal proceedings. In my view, those "usual practice" considerations apply more to standardised events and mechanical procedures, such as in operating theatres, production lines and the use of complex machines such as aircraft where defined protocols are required, rather than to the idiosyncratic human factors, issues and concerns arising in conferences convened in the course of litigation, and involving cases and people with inherent differences and concerns that inevitably require adjustments to considerations of "usual practice". 305. Such differences include, although not exhaustively, the variously differing capacities of litigants and witnesses to convey, absorb and assimilate information under the pressure of limited time, and the potentially infinite variety of mechanisms for injury in workplace accidents that need to be discussed and mutually understood, as well as other matters of cause and effect concerning injuries, treatment, disability, work, social and other effects, not to mention the at times emotive question of quantum. 306. I have serious doubts that such topics could have been adequately discussed in 30-45 minutes of conference time in preparation for what might have ended up being a once and for all hearing that extinguished further compensation rights if, as was possible, the parties ultimately considered it unwise to challenge the award of the arbitrator, on account of costs or other pragmatic factors. 307. Whilst I am mindful of the need to avoid making such judgments guided by what might be called a counsel of perfection, and whilst recognising that there is necessarily a range of what might be considered to be reasonable approaches to such conferences, I nevertheless consider Mr Schipp's approach as described was unrealistic, and aimed at protecting himself from criticism in these proceedings rather than relating matters of fact that ought to have been within his knowledge. This, in my view, reflects adversely on his credit. This leads me to doubt that "usual practice" as defined by him, actually occurred on the day in question. 308. For the above reasons, individually and in combination with each other, I conclude that I should entertain serious reservations about the credibility of the identified aspects of the testimony of Mr Schipp in this case. 309. Having decided that Mr Schipp's credit in this case has been successfully impugned, in my reasons for the decision concerning Issue 2 I will deal with the question of a possible motive or motives that Mr Schipp may have had concerning his conduct of the principal proceedings, and for which his evidence has been challenged. The plaintiff 310. The defendants attacked the credibility of the testimony of the plaintiff in these proceedings and his credit generally. In these proceedings the defendants submitted that the plaintiff was an inconsistent and unreliable witness as to the events of 1 August 2002, and as a consequence, it was submitted that his evidence should be held to be unreliable as to all aspects of the events that occurred on that day. 311. The defendants also made other submissions critical of the credit of the plaintiff. Those submissions traversed the veracity of the plaintiff's description of the underlying events; his motives in providing what was asserted to be limited and inaccurate medical histories to the specialists who had examined him; the true severity and significance of the injuries and disabilities that resulted from the underlying incident; the content of the plaintiff's financial returns and extent of the plaintiff's earning capacity as a spinologist. Credit attack based on the underlying events 312. I commence my review of those submissions with a consideration of the underlying events. In my view, the plaintiff gave his evidence concerning the underlying events in a straightforward manner that did not raise concerns in my mind as to any inherent unreasonableness or glaring improbability of his evidence as to the circumstances of his descent down the ladder of the grain storage bin, his subsequent fall and his reported injury. 313. In this regard, I have considered the plaintiff's evidence in the light of the statement dated 16 March 2001 that was given by his brother Mr Mathew Tremain to an insurance claims investigator acting on behalf of his workers' compensation insurer : pp 343-345 of Exhibit "A"; Exhibit "B". 314. Whilst Mr Mathew Tremain had descended the external ladder on the storage bin before the plaintiff, and did he not actually see the plaintiff's descent, he confirmed the position of the rake under the ladder and he confirmed seeing the plaintiff laying on the ground in an injured state holding his right knee. In my view, this is more than adequate corroboration of the plaintiff's account, not that corroboration was necessarily required. In referring to that statement I do not disregard the fact that Mr Tremain is the brother of the plaintiff. I do not consider that the familial relationship was a factor influential in structuring the content of the statement in a biased way in order to help the plaintiff. First, that proposition was not put to Mr Mathew Tremain, and secondly, if there was such a bias, I would have expected to see a more direct effect, and not a statement to the effect "I didn't see exactly what happened" : Exhibit "A" p 344.5. 315. Mr Mathew Tremain's statement confirmed the plaintiff's own evidence as to the occurrence of the underlying events but provided more detail and context for those events. Mr Tremain was not cross-examined on the content of that statement which was already in evidence before he was called to give his evidence. In view of the absence of such a challenge I feel I can more confidently rely upon the statement in order to accept the plaintiff's account as to how he came to be injured. In this regard I also consider it is significant that the unchallenged evidence was that Mr Mathew Tremain had observed the plaintiff, his brother, to be fit and healthy before the injury in question. 316. Contrary to the submission made as to the plaintiff's description of the underlying events lacking credibility, my impression was to the exact opposite effect. I therefore reject the attack on the credibility of the plaintiff's testimony concerning the underlying events. Credit attack based on alleged inaccurate medical histories 317. On behalf of the defendants, it was submitted "that the precise injury suffered by the plaintiff as a result of the accident on 8 November 2002 is impossible to determine." It was further submitted that because the plaintiff had provided incorrect and incomplete medical histories to various medical examiners, particularly in relation to his prior injury history. On these premises, the defendants submitted that the value of the medical reports obtained on behalf of the plaintiff was negligible due to the absence of sufficient foundations within the factual evidence: Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642, p 649, at [7]; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 30, at [85]. 318. There is more than just a slight degree of irony in that submission because as the plaintiff's solicitors, the defendants were retained by him to gather admissible and cogent medical evidence to support the plaintiff's claim for damages in the principal proceedings, which they had initiated on his behalf. As such, it was part of their function to competently analyse the reports received from treating and reporting doctors and to assess these reports for their evidentiary weight and if necessary, take the required steps to overcome forensic challenges of the kind they now rely upon to attack the plaintiff's credibility. Part of that process was to analyse the medical histories to identify any apparent inconsistencies and take remedial steps based on instructions to iron out such problems to minimise the likelihood of such matters being used against the plaintiff in the principal proceedings. 319. It was not the function of the defendants to simply obtain reports and file them without analysis pending the advent of a hearing, as they appear to have done. In these circumstances I consider it to be somewhat offensive to commonsense for them to seek a forensic advantage for themselves in this litigation, against the interests of their former client, as a result of their own apparently inadequate professional performance. 320. In this regard, the exhibits reveal the complete absence of any detailed factual and historical statement taken from the plaintiff by the defendants in accordance with their retainer, as would be expected from a litigation solicitor of ordinary skill and competence. In these circumstances I consider it to be profoundly unjust for the defendants to seek to rely upon, let alone succeed on a submission of the kind presently under consideration, as it is only enabled as a result of their own failures to act properly in the plaintiff's best interests. Had they done what was required of them in the circumstances, they would have had a reference point for the analysis of the collected medical histories, as was achieved by Mr Arnold, but for the opposite purpose, and they could have sought to have these reconciled with the assistance of the plaintiff. That would have been achieved by simply spending a few hours in conference with the plaintiff over the course of time. Clearly, that was not done. In my view, the plaintiff should not be required to suffer a financial disadvantage in these proceedings due to such failures of competence on their part. 321. Turning to the submission concerning inaccurate medical histories, I consider that this is not a proper basis upon which the plaintiff's credit ought to be impugned in this case. The reasons for this are twofold. First, for the reasons outlined above, I consider such a submission made at the behest of the former solicitors to be unjustly made. Secondly, the submission fails to have regard to the problems inherent in that approach : Mason v Demasi [2009] NSWCA 227 per Basten JA at [2] and Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 per Basten JA at[8]. Although these authorities were not decided at the time the principal proceedings were likely to have been heard in 2003, the underlying principles still hold good, and the perspective for analysis that these authorities provide, is available for consideration in these proceedings. 322. The point is that the stated inaccuracies in the histories recorded by the doctors may not be the fault of the plaintiff. The submission by the defendants fails to appreciate the different perspectives of medical and legal analysis and the differing purposes of a medical interview and the gathering of factual evidence for a trial. 323. In any event, it must be assumed that at a trial of the issues, competent counsel would take the time to pre-emptively ensure that the correct factual and medical history was fleshed out in the correct order and detail and relevantly introduced into evidence to ensure that the expert opinions relied upon in the plaintiff's case were soundly based and focused, and that the reports were not used as a basis upon which to attempt to discredit the plaintiff. 324. I have set out my analysis of the medical evidence in connection with Issue 8 between paragraphs [502]-[671] of my reasons. I consider that on a proper analysis of the medical reports, there are no significant inconsistencies. In my view, properly read and analysed, the medical evidence from the treating doctors is consistent and supportive of the plaintiff's case and not undermining of his credit. 325. In coming to that view, for the reasons I have given, I have generally not accepted the insurer's experts in their denigration of the plaintiff's credibility as a historian or as to his account of his problems, especially where they refer to non-physical factors in the plaintiff's presentation. One of the difficulties inherent in the attack on the plaintiff's credit in that regard is that when the defendants were acting for the plaintiff, they completely failed to comprehend 2 important aspects of the plaintiff's medical presentation, namely, the debilitating effects of the aggravating injuries sustained in the fall on 18 October 2001, and the psychological impact of the plaintiff's situation, including his instructions that he was suffering from depression, a fact they utterly failed to act upon. 326. I therefore reject the attack on the plaintiff's credit that was based on claimed inaccuracies and inconsistencies in the recorded medical histories. Credit attack based on claimed injuries and disabilities 327. The defendants failed to either tabulate or analyse the plaintiff's injuries and disabilities. I have set out my analysis of the treating doctor's reports between paragraphs [516]-[562] of my reasons. In my view a similar analysis could have been readily achieved by the defendants by undertaking the analysis themselves, getting a paralegal assistant to undertake it, or obtain an advice on evidence from counsel. They did none of those things. In my view, had they done so they would have ascertained, as I have, that there is a common thread of consistency in the plaintiff's complaints which indicates that the attack on the plaintiff's credibility concerning his injuries and disabilities, or his medical history, is misplaced. 328. It is a rare case where the evidence of medical histories spanning many years as found in medical reports perfectly dovetails with the verified history and the known facts. It is a part of the lawyer's art to carry out an analysis of such things and find the common thread of consistency within the facts, if there is one. In my view it was readily found on an analysis of the facts within the treating doctors' reports in this case. In the same vein, inconsistencies can be unravelled and explained if the time is taken to do so. The defendants did not do so in this case, and that circumstance has in my view unfairly enabled them to mount this aspect of their credit attack on the plaintiff. In my view that aspect of the attack has failed to impugn the credibility of the plaintiff. The plaintiff has disclosed his prior injuries and he has with reasonable accuracy described his post-injury problems. I reject the attack on the plaintiff's credit based on his account of his injuries and disabilities. Credit attack based on plaintiff's financial returns 329. The defendants have pointed to the paucity of the plaintiff's earnings in the years before his injury to attack the credibility of the plaintiff's claim for loss of earning capacity. In my view that attack has failed to relevantly impugn the plaintiff's credibility. 330. The attack makes no allowance for the plaintiff being off work with a back injury several years before the events in question, which had resulted in him receiving a workers' compensation settlement. The attack also pays no regard to the plaintiff's evidence of having had something of a crisis in his life which led him to commence studying, and later take a year off work to study to become a spinologist. 331. In my view the evidence as to the plaintiff's earnings, and as to how he spent his time before the accident in question were insufficiently explored in the evidence to sustain this aspect of the attack on the plaintiff's credibility. Credit attack based on earnings as a spinologist 332. I do not consider the defendants' attack on the credibility of the plaintiff concerning his earnings as a spinologist to have been made out on the evidence. The early work as a spinologist occurred some 8-9 years before the trial. The defendants took no steps to obtain or preserve the records when the plaintiff could have been in a position to achieve this. In addition, the plaintiff, reasonably, could not recall his actual earnings in respect of the pre-injury period. He acknowledged having some memory problems. 333. The defendants' attack makes no allowance for the possibility that the plaintiff did not draw significantly from his business in the early start-up period before he answered his brother's call for help on the farm. There could be many reasons for the plaintiff not being able to provide evidence of his earnings as a spinologist. These could include cash flow issues, non-drawings, start-up costs, non-availability of records. All of these matters are speculative. They were not explored in any detail in the evidence. On the state of the evidence I do not consider the attack sought to be made on account of spinology earnings to be indicative of a credit issue necessarily requiring determination against the plaintiff. Credit attack based on events of 1 August 2002 334. The defendants in the proceedings submitted that the plaintiff should not be believed as to his version of events of 1 August 2002. I find myself unable to accept that submission. I find the evidence of Mr Schipp to be an unreliable source for discerning the events of that day because of the view I have taken and explained concerning the credibility of his testimony, which was principally based on "usual practice" considerations notwithstanding that he also made a point of saying that every case is different. 335. The evidence of Mr Kirby and Mr Arnold is non-contributory to the resolution of the conflict between the recollection based evidence of the plaintiff on the one hand, and the position of Mr Schipp based not on a recollection but "usual practice", where he did not follow what was usual practice for solicitors, namely to take notes of significant events. 336. Whereas Mr Schipp claimed no relevant recollection, the plaintiff's former case being one of hundreds be handled, the plaintiff had every good reason to recall significant events that occurred in his only case, in circumstances where he felt "slayed" by the events in question. I consider the plaintiff's evidence to be reliable and based on the facts of what actually occurred, rather than the evidence of Mr Schipp's reconstruction based on "usual practice" where there was no evidence from which it could be reasonably inferred that usual practice was adhered to on the events of the day. 337. In these circumstances, in making my findings as to what occurred in the events of 1 August 2002, I prefer the factual evidence of the plaintiff to the "usual practice" based reconstruction introduced through the evidence of Mr Schipp, without notes to aid his evidence. Resolution of credit issues concerning the plaintiff 338. Following my review of the evidence I consider that the plaintiff's evidence is credible and not glaringly improbable in any respect. In my view the attack made by the defendants on the credibility of the plaintiff's evidence has failed in its objective. In a contest on issues of credit between the plaintiff and Mr Schipp, whose credit had been significantly impugned in these proceedings, I prefer the evidence of the plaintiff where their evidence relevantly differs. I do so because I consider the plaintiff's evidence was overall, reliable and truthful. Issue 2 – Claimed representation and its characterisation, relative to duty of care owed 339. The question for decision regarding Issue 2 is whether or not Mr Schipp told the plaintiff that the defendant in the principal proceedings had "damning" video evidence, the result of which could mean that he would receive no damages from the litigation he was pursuing. If so, the further question arises as to whether this should be characterised as involving a relevant breach of the duty of care that was owed, and whether this constituted a contravention of s 42 of the Fair Trading Act 1987 on account of misleading and deceptive conduct. Preliminary considerations – scope for a relevant discussion of video film 340. As a preliminary matter, it is necessary to consider whether, if in fact the defendant had relevant video evidence, could this have resulted in the plaintiff receiving no compensation in the principal proceedings. The question needs to be considered even though it is common ground that no video evidence of the plaintiff existed and, that neither of the defendant's legal representatives at the arbitration had represented to anyone on behalf of the plaintiff, that there was such evidence. 341. In considering this question it is plain that video evidence could have a "damning" effect on a claim of the kind advanced on behalf of the plaintiff in the principal proceedings. This could arise in at least two ways. 342. First, if a video segment had shown that the plaintiff had been engaging in a kind of physical activity, or involving an intensity of activity that could be argued to be inconsistent with his claimed level of disability, this could be "damning", depending on its content. If video evidence of that kind was shown in the proceedings, it is possible that an arbitrator, or on a re-hearing, a judge, could be influenced by it when making findings concerning impairment in the plaintiff in such circumstances. 343. I consider that video evidence having such content, could have the effect of persuading an arbitrator or a judge that the level of impairment should be found to be below the required statutory threshold to be met before an award of damages could be made. This result could arise even in circumstances where a plaintiff and a plaintiff's legal advisors considered the video evidence, once shown and evaluated, to be innocuous. Despite those possible views, it would remain foreseeable that an arbitrator or a judge could nevertheless take a different view, which could result in a finding of a level of impairment that would preclude an award of damages. 344. Secondly, and alternatively, even if video film were shown and it did not have the effect of persuading an arbitrator or a judge that a case should fail, it is foreseeable that it could nevertheless result in an award of damages of a relatively low order. This may not attract the benefit of a full order for costs, or it may attract the burden of a liability to pay the defendant's costs on account of a failure to exceed an offer made by a defendant. Alternatively, some other reason could arise that may influence the discretion to award costs. Either way, as a result, a plaintiff in such circumstances "could get nothing" from that kind of litigation. 345. In this regard, almost all advocates, if not all advocates, would have had the experience of being on the side of a losing case they thought would be won, as well as the experience of having been in a case that was thought to have been unlosable, but that ultimately failed to succeed. It is a truism that video film has the potential to produce such results in personal injury cases. 346. I also consider that all legal practitioners practising in the field of personal injury litigation ought to have had a similar understanding to that effect, including in 2002. This is one of the reasons why some cases settle. The effect of a defence litigation strategy of showing a plaintiff a film during cross-examination can at times have the effect of causing a case to settle where there is a live factual or credit issue that could influence the outcome of the litigation. Even the suggestion that such evidence existed could be perceived to be menacing and disturbing to a truthful plaintiff innocent of wrongdoing or exaggeration, and such a suggestion could foreseeably precipitate a settlement by having the sudden or dramatic effect of reducing the monetary expectations of a litigant. 347. I do not need to receive evidence on the range of possible effects of such factors as I consider them to be within the common knowledge of judges and members of the legal profession generally. 348. In my view, it follows from the preceding analysis, that on 1 August 2002, there was scope in the context of the principal litigation, for Mr Schipp to have a discussion about the existence of video film, either if he thought it relevant and chose to raise it, or if the plaintiff had raised the subject, or if it was a matter raised by the representatives of the defendant. Absence of video film 349. I find that neither of the defendant's representatives, namely neither Mr Arnold nor Mr Harben, had raised the matter of damning video film with the representatives of the plaintiff on that day. In this regard I accept the evidence of Mr Arnold and the concession made by the parties with regard to the evidence Mr Harben would have given, if he had been called. 350. Mr Arnold stated that there had been an attempt to obtain such video film of the plaintiff, but that course had not produced any results. A copy of the report of those attempts, which appeared between pages 334JJ-334SS of Exhibit "A", indicated that the plaintiff was not sighted, despite 18 hours of surveillance. That surveillance took place at the property of the plaintiff's mother at Warialda. The summary section of that report indicated that the investigator was provided with a video of the plaintiff taken when he attended a medical appointment in Newcastle on 4 June 2001. It appears that segment was for identification purposes. Annexed to the report were 2 prints taken from that video film. These prints identified the topography of the area, but there were no images of the plaintiff. 351. In such circumstances, Mr Arnold would have had no basis upon which to state that video evidence existed of the plaintiff, let alone that such evidence was damning. In the circumstances, it would have been most unwise of him to have said anything about "damning" video film. I find that he did not do so. 352. There is no basis on the evidence to support a finding that Mr Kirby had either raised or discussed the possible existence of video film. He would have had no reason to do so arising from any discussions he might have had with either Mr Arnold or Mr Harben. There is no suggestion from either the plaintiff or from Mr Schipp that indicated Mr Kirby had participated in such a discussion. I accept he has no recollection of the events of the plaintiff's case on the day in question. He was not involved in the formal arrangements that resolved the case. In fact the terms of settlement were signed by the respective solicitors, and not by counsel. Mr Kirby's letter returning the brief specifically stated that the terms of settlement had not been handed to him : Exhibit "1" p 329. Possible scenarios in which the topic of video evidence might have been raised 353. A number of possibilities arise for consideration of whether or not video evidence was raised in a conversation between Mr Schipp and the plaintiff. First, it is possible that the plaintiff could be incorrect in his evidence in which he related a conversation he said he had with Mr Schipp concerning the possible adverse consequences of the defendant having "damning" video film. Secondly, the plaintiff could have asked Mr Schipp some questions which may have led to a discussion between them about the possibility of the defendant having video film. Thirdly, there is the possibility alleged on the plaintiff's behalf, namely that Mr Schipp had raised with the plaintiff the subject of video film in a way that was calculated to influence the plaintiff into compromising his case. First possibility – plaintiff could have given incorrect evidence 354. With regard to the first possibility, I find that the plaintiff was neither incorrect nor mistaken in his evidence in which he related that there was a discussion about video film in the context of his case. For the moment I put to one side a consideration of whether the word "damning" was used in the discussion. For the reasons that follow, I have reached the conclusion that there was a discussion between Mr Schipp and the plaintiff about video evidence in the lead-up to the compromise of the principal proceedings. 355. I consider it to be of some significance that in the verified defence filed, which the evidence discloses was prepared by reference to instructions from Mr Schipp, it was conceded that there may have been a discussion about detrimental video evidence. In his evidence, Mr Schipp conceded that it was "not out of the realms of possibility" that he may have had a conversation with the plaintiff to the effect that "they may have some video". Accordingly, the evidence called by the defendants does not exclude the possibility that there was a conversation with the plaintiff about video evidence. 356. It is somewhat ironic in this case, that in challenging the plaintiff's recall of events, it was put against the plaintiff that he had not kept any notes of the events of the day, this being the basis upon which it was argued that his recollection may not be correct, or may not be entirely accurate. 357. The irony of the submission was that Mr Schipp had not kept any notes of the relevant events either. This was so notwithstanding that it was part of his professional responsibility to do so. The difference between the position of the plaintiff and Mr Schipp on the issue of keeping notes was that whereas Mr Schipp claimed not to remember the events of the day at all because the plaintiff's case was one of many, and time had passed, the plaintiff, being the person most affected by what was going on at the time, had good reason to be focussed on these events, and was arguably therefore more likely to remember them more accurately than Mr Schipp, who was concerned with not just one case, but with 4 or 5 cases on that day. 358. In those circumstances, on a factual contest as to who was the more likely to accurately recall relevant events, I consider that Mr Schipp had little prospect of remembering anything about the events with reasonable accuracy without access to notes that he was expected to keep in order to assist him should he need to refresh his memory to recall salient facts. 359. The plaintiff was in attendance at the arbitration to deal with, and possibly give evidence in, his one and only case in which he was seeking significant compensation for an injury that he claimed had made a great difference to his life, including his ability to work. He had every good reason and interest to be focussed on the events of the day. I consider this to be a circumstance that supports a finding sought by the plaintiff in this case to the effect that he accurately recalled a discussion between himself and Mr Schipp about video film along the lines he described. Further, I accept the plaintiff was a truthful witness and I do not consider that he has invented his description of the topic of video film as part of the conversation in question. 360. In making these findings I have taken into account the plaintiff's evidence of a possible effect of his head injury in 1977, namely that it had possibly affected his memory. I have discounted that factor in my assessment in the absence of medical or other expert evidence that would indicate this to be a relevant factor. I have also discounted it because the matter at issue is not about something once recalled but now forgotten, which is a commonly encountered feature of memory problems amongst witnesses, but instead here it relates to something actually recalled. I consider it to be unlikely that the plaintiff either made up this detail or has convinced himself of its existence as a fact. I also consider that the plaintiff's description of the events had the ring of truth about it. I also consider it to be something that a plaintiff would be likely to recall as a significant event. I therefore consider it more likely than not, that a conversation about video evidence did in fact occur. 361. However, I place to one side for the moment, a further consideration of the remaining content of the conversation between Mr Schipp and the plaintiff where video film was discussed. I will return to consider this aspect further when reviewing the third of the possibilities I have identified. Second possibility – whether the plaintiff raised the subject of video evidence 362. The second possibility for consideration in this context was that the plaintiff may have raised the topic of a video film for discussion. I consider this a plausible and possible explanation for the topic being discussed. This possibility emerges for consideration from the record of negotiations that was kept by Mr Arnold. 363. There was an obvious point in those negotiations where, in order for the case to have settled in the face of the defendant's final or "That's it" offer, the plaintiff would have had to accept a significant reduction in his monetary expectations, and he would have had to give instructions to accept an offer of $175,000 inclusive of costs, as the records show he did. This was when he knew that his costs, which were to be deducted from a settlement, would be $35,000, this offer being clear of workers' compensation payments that did not need to be repaid. 364. On the question of the plaintiff's monetary expectations from the principal proceedings, the plaintiff's evidence was that he was expecting to receive between $350,000 and $450,000. Putting to one side whether the plaintiff had previously instructed Mr Schipp to make an offer of $275,000 inclusive of costs and clear of workers' compensation, thus producing a "That's it" position of the defendant, or whether Mr Schipp had been making counter offers without instructions, as has been alleged against him, the fact remains that whatever of these two positions was the fact, for a settlement to occur, the plaintiff was required to capitulate significantly from his monetary expectations in order to settle the case. In order to secure the plaintiff's instructions to settle the case, I consider that something very significant must have arisen in the course of Mr Schipp's conversation with the plaintiff in order for the plaintiff to reduce his monetary expectations and for a settlement to occur. In my view, in the context, and in the light of the evidence, such an event was most likely to have been a discussion of video evidence, as was claimed by the plaintiff. 365. In my view, in significant cases of personal injury, giving consideration to the possibility that an insurer may have some video footage is one of the obvious analytical matters that a plaintiff or a solicitor for a plaintiff might speculate upon in seeking to understand the reasons behind, or the ramifications of, a hardened settlement stance taken by an insurer during settlement negotiations. Third possibility – potential motive for solicitor to discuss video evidence 366. The third possibility for there being a possible context for Mr Schipp to raise the topic of video evidence with the plaintiff, as was argued on behalf of the plaintiff, was that Mr Schipp used the opportunity for a discussion about video evidence in a way that was calculated to make the plaintiff settle his case. 367. For this analysis I return to an examination of the content of the conversation the plaintiff described having had with Mr Schipp. The plaintiff said he was told by Mr Schipp that the defendant had "damning" video evidence which could have the result that he could "get nothing" from his case. 368. I consider that if those were the words that had been used by Mr Schipp as alleged by the plaintiff, in the context of a solicitor advising his client who had asked what he should do concerning an offer available for acceptance, it is difficult to envisage what other utility that words to the effect "you could get nothing" would have, other than to focus the thinking of the client towards an acceptance of an offer then available as a sum that was certain, and which could possibly be regarded as being a better option than a possible adverse outcome, namely a loss where he could get nothing. 369. At the outset of this part of the analysis, I record my view that it would have been unlikely, even on the state of the particularisation of the case, the state of evidence collection and the state of case preparation undertaken by Mr Schipp, that the plaintiff would have got nothing from the litigation. Even if he lost completely, he would still retain his workers' compensation rights. 370. I set out the reasons for that view on account of my liability and damages assessments of the principal proceedings dealing with Issues 5 - 9. In this context, I consider it sufficient for present purposes to state a summary of my views on those matters. In this regard, I consider the possibility that the plaintiff would have got nothing from the principal litigation as being a most unlikely occurrence. I consider that view not only applies to a present-day review of the evidence available in 2002, but also to a review of the evidence that would most likely have prevailed either at an arbitration hearing in August 2002, or at a hearing before a judge in 2002/2003. Consideration of the terms of a discussion on video evidence 371. The question here is whether it was more probable than not that Mr Schipp had a conversation with the plaintiff in the terms alleged by the plaintiff and with what intent. In posing this question I have had due regard to the fact that this factual contest is between a lay client and a solicitor who had obligations of candour and fair dealings in his conduct towards his client. The task of deciding whose evidence is to be preferred in these circumstances is an onerous one, but one that must be made in connection with the matters in issue between the parties. In the circumstances, I acknowledge the appropriate standard of proof for the allegation made by the plaintiff to be the civil standard of proof on the balance of probabilities, but to a high level of satisfaction : Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. 372. On the one hand the plaintiff has provided a plausible account of the conversation he alleges took place with Mr Schipp, which on its face is not glaringly improbable. He has done so with a level of detail and in a context consistent with the interest he had at the time in being informed of the subject matter of the conversation. He has also done so in the context where I have found him to be a truthful witness whose credit has not been relevantly damaged in connection with the evidence given in this case. 373. On the other hand, the argument against acceptance of the plaintiff's evidence is the proposition that, on the basis of an "invariable" adherence to the "usual practice" adopted in such cases by Mr Schipp, namely, if the representatives of the defendant in the principal proceedings had not mentioned the existence of damning video evidence as there was no such evidence, then as a matter of usual practice, Mr Schipp would not have raised such a matter in his discussions with the plaintiff. 374. The defendants in these proceedings also argued that it was possible, as was conceded by Mr Schipp, that there may have been a discussion about video evidence, but that the plaintiff was mistaken as to the content of such a discussion to the effect that the defendant was in possession of "damning video evidence" and where he claims that there was a statement made to him that this was in connection with a recommendation from Mr Schipp that the plaintiff accept the offer that was available from the defendant. 375. I find there was a conversation between Mr Schipp and the plaintiff about video film just before the plaintiff gave instructions that enabled his case to settle. In my assessment the plaintiff's recall of the fact of such a conversation is likely to be correct and I prefer his evidence on this issue to the position adopted by Mr Schipp. The analysis of the content of that conversation needs to be evaluated in conjunction with the possible reasons why a solicitor might raise video evidence on a discussion with his client in this case. 376. Having reviewed the circumstances in detail, I am comfortably satisfied to the standard I have identified, that the plaintiff's account of events, which I find to be credible and not otherwise glaringly improbable, is more likely to be correct and should not be displaced by considerations of the "usual practice" of the plaintiff's solicitor in this instance. 377. I find that when Mr Schipp took the plaintiff for a walk across the road from the courthouse to have a talk to him, he told the plaintiff the insurer had "damning video evidence" on him. I accept the plaintiff's evidence that in this conversation Mr Schipp told him he "could get nothing" and he recommended to the plaintiff to take the amount on offer from the insurer. I find this to be so especially where it is claimed that the usual practice relied upon by the defendants to resist such a finding is not supported by any notes or other extrinsic factors, where, contrary to expectation, no notes of any kind were kept by the solicitor. The evidence in this case discloses the ordinary professional expectation was that such notes would be kept. To the extent that notes were not kept, not only is this a very disturbing matter, it is not a sound basis for "usual practice" evidence to displace the credible recollection of the plaintiff. 378. I find that the settlement reached in the principal proceedings occurred as a result of the operation of a confluence of factors. These were: (a) Mr Schipp most probably realised, consistent with the plaintiff's evidence of these proceedings, that he had a client before him, in the form of the plaintiff, who had what Mr Schipp would have considered to be high monetary expectations from his case, in that he was expecting to obtain from the proceedings something of the order of between $350,000 to $450,000; (b) Whatever the merits of the plaintiff's belief as to his monetary expectations from the case, he most probably acquired that view from a relatively short conference on the morning of the scheduled hearing, where the conference agenda was very busy and in which the scope for misunderstanding or an incomplete understanding of matters discussed could have readily arisen due to those circumstances, which would have allowed for only a relatively limited scope for discussion on the important topic of quantum; (c) Mr Schipp must have realised from the way the negotiations were proceeding during the course of the day, that the insurer was not going to meet the plaintiff's monetary expectations, thus indicating to him that the case would probably have to proceed to a hearing. The plaintiff's case had not settled by the middle of the day; (d) Mr Schipp had 3 or 4 other arbitration cases listed on the day where he had briefed the same counsel in each case, and on any view of the circumstances, he must have had to divide his professional time, energies and concentration between these cases; (e) If the plaintiff's case was to proceed, Mr Schipp must have known that the particulars of claim would not have matched the evidence to be given by the plaintiff, namely that the plaintiff could no longer practise as a spinologist. I infer this to be so not only from the plaintiff's letter to Mr Schipp dated 1 October 2001, but also from the fact that Mr Kirby had made a note about spinology and what constituted spinology in his morning conference with the plaintiff : Exhibit "C". Consistent with his usual practice, Mr Kirby would have informed Mr Schipp of this fact. Given the likelihood that Mr Kirby would have communicated matters of substance that arose in conference to Mr Schipp, assuming Mr Schipp was not at the conference, Mr Schipp would have realised that the case had some difficulty in proceeding on the state of particularisation and on the state of evidence collection. Alternatively, as seems likely from the evidence, Mr Schipp was at the conference and as an experienced personal injury solicitor, would have acquired this understanding himself; (f) If the case was not ready to proceed, this would have been a matter of some embarrassment to Mr Schipp both personally, and to his employers' firm. That circumstance would also have had costs consequences; (g) As was submitted by Mr McClintock SC, kindly as he put it, Mr Schipp had taken a "minimalist" approach to the preparation of the case. In my view this was evident because he had obtained no statements from the plaintiff or from any other witnesses on the issues of either liability or damages; he had not accurately particularised an available claim for loss of earning capacity in the profession of spinology; he had not particularised the plaintiff's disabilities in the filed particulars; he obtained only 1 medico-legal report from an orthopaedic specialist where that report had to be weighed against the reports of 4 experts to be tendered on behalf of the defendant; he obtained no expert evaluation of the plaintiff's stated depression. In this regard, the defendant was relying on 4 medical experts from within the disciplines of orthopaedics and rehabilitation medicine. (h) The maximum amount of profitable costs that Mr Schipp could render for Bale Boshev had already been triggered by the fact of the arbitration hearing, so that any adjournment for further preparation to increase the prospect of the plaintiff achieving an award of damages within his expectations, or any re-hearing sought by the plaintiff to achieve the same object, would have necessarily eroded the profitability of taking the plaintiff's case further. As was put by Mr McClintock SC, Mr Schipp knew there was no financial incentive for the firm to take the case further, as the additional agreed $5,000 per day fee over and above the lump-sum agreement for $35,000 in costs had to be divided amongst a range of expenditures so that taking the case further beyond an arbitration hearing would not have represented a reasonable economic reward for the effort that was required; (i) Mr Schipp was faced with a final offer from the insurer's representatives which must have clearly indicated to him that unless this offer was accepted, the case would either be called on for hearing with the real prospect of a necessity for an adjournment with costs, or would be marked not reached and would then require a re-listing on another date; (j) Mr Schipp had what must have been on any view a significantly heavy caseload of 300 active files, when the evidence was that, in 2002 he had briefed Mr Kirby in over 100 such cases; (k) The "minimalist" level of preparation of the principal proceedings must have been professionally embarrassing to Mr Schipp, who professed expertise and experience in the proper preparation of such cases. 379. In considering and weighing all of these factors, in my opinion there were strong factors in operation motivating Mr Schipp to achieve an early resolution of the principal proceedings by way of a compromise settlement to close his file. However, he had a client who had left the conference with his barrister holding a firm idea as to the range of damages in which his case should be valued. His client was articulate and intelligent, and would need some convincing if the case was to settle for the amount of the insurer's final offer. This was not a "usual practice" situation where Mr Schipp would, as he described, simply leave it to the client to decide whether or not to take the offer. 380. In those circumstances, I find that Mr Schipp's purpose in asking the plaintiff to accompany him across the road and away from the courthouse was so that he could have a confidential discussion with him, unfettered by any limiting factors associated with other persons congregating around the busy arbitration rooms at the courthouse. I find that in doing so, his aim was to speak to the plaintiff about the possibility of accepting the defendant's offer. It was obviously not necessary for Mr Schipp to take the plaintiff for a walk across the road and away from the courthouse just to obtain his instructions to reject the offer. 381. On the evidence of the plaintiff, which I accept, this seems to be the first occasion on which Mr Schipp took the time to discuss an offer of settlement from the insurer with the plaintiff in detail and obtain instructions for a response. In the absence of any notes made by Mr Schipp concerning instructions regarding offers and counter offers I do not accept Mr Schipp's evidence that he had beforehand been making counter offers on the instructions of the plaintiff in the amount as noted by Mr Arnold. 382. My view of Mr Schipp's conduct in that regard is influenced by the fact that after the settlement, he was prepared to conceal from his client the true significance of the revised Centrelink calculations. This indicates to my analysis that he would also have been capable of resorting to conducting settlement negotiations on the plaintiff's behalf without first obtaining the plaintiff's instructions on the amounts of the counter offers to be put back to the representatives of the defendant. 383. This is consistent with the plaintiff's description of his observations concerning Mr Schipp, made during the course of negotiations, where Mr Schipp displayed an attitude of wanting to reject offers in an off-hand manner without first clearing with the plaintiff the instructions for a counter offer. In my view this serves to explain why, at the end of the negotiations, the plaintiff felt "slayed" when presented with the option of accepting an offer of $175,000 inclusive of costs and clear of workers' compensation payments, or face the prospect of getting "nothing". In my view he was simply not kept informed as to what Mr Schipp was doing by way of negotiations on his behalf. The fact was that the plaintiff trusted Mr Schipp and Mr Schipp must have known this. That state of trust did not absolve Mr Schipp from the need to obtain formal instructions from his client on offers and counter-offers. 384. Having considered and weighed all of these matters, on the balance of probabilities, and to a high degree of satisfaction, I find that in the lead-up to the settlement of the principal proceedings, Mr Schipp represented to the plaintiff that the defence side of that litigation had "damning video" film which was detrimental to the plaintiff's case. I also find that in the course of further discussion on that topic, when the plaintiff asked his solicitor for advice as to what he should do, because he felt "slayed" in the circumstances, Mr Schipp recommended to him to take the offer as he could receive "nothing" from the case. I am comfortably satisfied that these events occurred in the manner described by the plaintiff. 385. In coming to these findings I recognise that it is necessary to identify why Mr Schipp, as a solicitor, would have conducted himself in such a manner that was so profoundly contrary to his client's best interests. In this regard I consider that he simply did not have his client's best interests at heart. In my view this is clear from the way in which he had prepared, or had not prepared, or had otherwise dealt with the plaintiff's case, including from a very early stage. 386. In this regard, there is evidence within Mr Schipp's file indicating that he had adopted an off-hand and discourteous manner in his communication with his opposing solicitor, Mr Arnold, an attitude that was hardly in his client's interests. This is evident from the following. 387. On 25 July 2001 Mr Arnold sent a request for further and better particulars to Mr Schipp : Exhibit "1" pp 332-334. In relation to liability, legitimately in my view, Mr Arnold's letter asked the following question: "6. Please identify the "rock" that the Plaintiff hit when he allegedly stood on the wheat rake. By this we mean the size and type, and where in relation to the ladder and rake it was positioned?" 388. On 3 October 2001, Mr Schipp replied to that request, addressing question 6 as follows : "6. This is a stupid questions (sic)." 389. That answer was hardly conducive to a co-operative relationship of comity with his counterpart to the litigation. This was not in the client's best interests. 390. In the same correspondence, in relation to damages, legitimately, Mr Arnold asked the following question : "4. Full and precise particulars of all disabilities of a permanent and continuing nature which the plaintiff claims flow from the injuries, the subject of this action." 391. In his 3 October letter of reply, Mr Schipp responded to that request as follows : "4. See medical reports. Our client claims a continuing injury to his back, neck, arms, leg, together with anxiety and depression." 392. In my view, it is clear from this correspondence that Mr Schipp was off-hand in his attitude to providing particulars of the plaintiff's damages claim. In this regard, there was a lack of attention to matters of elementary detail. 393. Also in this regard, there is nothing in the tendered file that indicates which medical reports had been served on the defendant's solicitor and when this had occurred. At the time, Practice Note 33 required a plaintiff's solicitor to file a certificate of compliance setting out in an annexed schedule, the documents that had been served on the opposing side. A copy of that certificate which was signed by Mr Schipp, appears between pages 98-99 of Exhibit "A". 394. There are 2 remarkable details concerning that document. One such detail is that the document was not dated, although that is a matter of little importance because it bears the stamped date of 17 May 2001 when it was filed in the registry. The other such detail is that although the attached schedule provides for the listing of the name of the author of a report, the date of the report, and the date the report had been served, all of these details were left blank when the document was filed. 395. The lack of attention to elementary detail was also evident in the first briefing of Mr Kirby on 19 June 2001. The index to the brief simply stated "3. MEDICAL REPORTS" : Exhibit "1" pp 327-328. There is no indication of what Mr Kirby was given to consider in the medical reports section of his brief at the time he was briefed, although the reports sent to him after 19 June 2001 can be identified from the accretion of correspondence. 396. It is plain that Mr Schipp failed to keep any notes of significant events that had occurred in the course of the litigation. The damages case was particularised without regard to the plaintiff's particular training as a spinologist and without regard to his claimed inability to pursue that work. No evidence was obtained of the kind given by Mr Anthony Tremain in these proceedings that provided evidence of the potential for spinologists to earn significant amounts of income. 397. The papers contained no organised factual statement or proof of evidence from the plaintiff. The sketchy Voices referral form could not reasonably be described as being a factual statement or proof of evidence. 398. Mr Schipp acknowledged he had a practice of not attending conferences where critical matters were discussed, and he made no attempt to advise his client of the monetary value of the claim he was pursuing. He had no notes suggesting he in fact attended at the conference between Mr Kirby and the plaintiff. There is nothing in the exhibits that suggests his presence. Mr Kirby's fee note made no reference to Mr Schipp being present at the conference in question. Mr Schipp seems to have left the bulk of the work for counsel to perform. The exhibits in this case, comprising the Bale Boshev file in the principal proceedings, do not reveal any attempt at significant analysis of the evidence by Mr Schipp. There was nothing in the Bale Boshev exhibits that even slightly resembled the kind of analysis of the liability or medical evidence that Mr Arnold was providing to his insurer client. 399. Also telling of the poor standard of attention to the detail of the case was the complete absence of any medico-legal investigation of the plaintiff's complaint of depression having set in after the plaintiff had advised him of this by letter. There was not even a file note evidencing that it had been considered, let alone discussed. In my view this demonstrated a lack of empathy for the client's problems. 400. It is of some significance that Mr Schipp was practising in an environment, where, because of the nature of the costs agreement between the defendants and the plaintiff, he did not have to justify the deployment of his professional time. Only 1 non-treating medico-legal report was obtained on behalf of the plaintiff whereas the defendant was marshalling much more evidence against the plaintiff's claim. That state of preparation was bound to stack some odds against the plaintiff on the damages issues to be determined at a hearing. 401. In my view, the circumstances of the manner of preparation of the plaintiff's case compels an acceptance of the submission made by Mr McClintock SC with deliberate understatement, that Mr Schipp was an adherent to the "minimalist school" of legal practise. 402. In these circumstances, where, as was submitted on behalf of the plaintiff, once the date of the arbitration hearing had been fixed, the costs agreement invoked the full fee of $35,000 for legal costs on the matter being concluded. It was submitted that in these circumstances, it was in the interests of the firm, and therefore in the interests of Mr Schipp who was employed by the firm, to resolve the plaintiff's principal proceedings at the arbitration stage without the case going further and without the need to take on the burden of further and more intense preparation, at a cost that would have to be defrayed from the firm's professional costs by reason of the nature and terms of the costs agreement with the plaintiff. 403. In this regard I accept the submission made on behalf of the plaintiff that Mr Schipp had no real interest in taking the case further than the arbitration stage, as no significant fees would be earned from the case from that time, noting that further medical reports and other evidence would have to be acquired, at a cost, and the ongoing agreed daily fee of $5000 would have to be applied to defray the cost of further disbursements, for example, possible further expert reports, transcript, witness expenses, hearing fees, counsel's fees and the daily solicitor's costs associated with a trial. I accept the submission made on behalf of the plaintiff that Mr Schipp most probably felt there was insufficient financial incentive for the firm to take the case to the next stage, thus preferring other considerations to the interests of his client. 404. In view of the foregoing analysis, I accept the submission made by Mr McClintock SC, that Mr Schipp raised the topic of "damning video" with the plaintiff in such a way that was cunningly calculated to influence the plaintiff into compromising his case at the arbitration hearing. 405. My remarks in this regard should not be read as being critical of the laudable aim of resolving cases at an early stage of a dispute involving litigation. There is nothing wrong and everything right with alternative dispute resolution procedures aimed at saving time, costs and the stresses of litigation. On the contrary the legal system and the legal profession formally encourages pursuit of these goals, provided the litigants' rights are not dealt with unfairly. 406. It now remains necessary to consider whether the circumstances I have found to have occurred involved a relevant breach of the duty of care owed by the defendants, and whether s 42 of the Fair Trading Act has been infringed. Breach of the duty of care owed 407. It is common ground that there is no material difference between the duty owed to the plaintiff arising out of the relationship of proximity that engages a duty of care arising from tort law, or the contractual duty of care that arose from the contract of retainer between the parties. On behalf of the defendant, Mr Dicker fairly conceded that the result of the cause of action framed under the Fair Trading Act 1987 will follow the result of the causes of action framed in negligence and breach of contract. 408. I have found that on the pivotal issue, Mr Schipp did in fact represent to the plaintiff that the representatives of the insurer had damning video evidence and that the plaintiff could get nothing, leading to the plaintiff following Mr Schipp's recommendation to accept the offer that was available. It was conceded at the outset that the result of these proceedings would be determined by the resolution of that issue. 409. Accordingly, I find that Mr Schipp breached the duty of care that he owed to the plaintiff. In my view, the breach of duty is plainly evident in the following respects. 410. First, representing to the plaintiff that the insurer in the principal proceedings had "damning video evidence" where Mr Schipp had no factual basis for the making of such a representation, clearly amounts to a breach of duty of care. In my view, making a representation of this kind, as I have found to be the case, is totally inconsistent with the duty of good faith and candour which Mr Schipp owed to the plaintiff. 411. Secondly, on the occasion of the plaintiff asking Mr Schipp for advice as to what he should do in response to the offer of $175,000 inclusive of costs and clear of workers' compensation payments, it was a clear breach of duty of care on the part of Mr Schipp to recommend to his client to take the offer for the reason that he "could get nothing" without also giving his client advice to the effect that an arbitration hearing was not necessarily a final hearing, he had a right to seek a hearing before a judge of the District Court if he were to be dissatisfied with the results of the arbitration, and that in these circumstances he had an opportunity of viewing the so-called "damning video evidence". 412. This would have been so because the arbitration hearing was not a final hearing and if there was such video evidence there would be an opportunity to respond to it, either at the arbitration hearing or at a trial before a judge. Such advice would of course be accompanied by a discussion on the cost implications of a rehearing, depending upon the result. 413. One such costs issue was that if the defence chose not to show the video at the arbitration hearing but showed it before a judge at a rehearing, this would most likely have adverse costs implications for the defence because the parties were expected to adduce all relevant evidence before the arbitrator. 414. Overriding all discussion about video evidence is the reality that such evidence is not shown at a hearing if the activities shown on the film do not relevantly contradict the plaintiff's evidence. A lay client would not necessarily appreciate this subtle nuance. In my view it was incumbent upon Mr Schipp to explain this truism to his client. Given my credit findings concerning his evidence, in the absence of any notes in which relevant events were recorded by Mr Schipp, I am not prepared to infer from his evidence of his usual practice concerning advice as to the significance or utility of video evidence, that he followed his usual practice on this particular occasion. 415. Thirdly, the failure to keep the plaintiff informed of the precise sequences of the respective offers and counter offers, and the failure to obtain the plaintiff's instructions on those offers and counter offers made during negotiations, or to keep a record of them, represents a clear breach of duty of care on the part of Mr Schipp. 416. Given my credit findings, in the absence of notes kept by Mr Schipp recording the course of negotiations, including written evidence of the instructions he claims to have received from the plaintiff to reject offers and to make counter-offers, I am not prepared to infer from Mr Arnold's notes that the opening offer made on behalf of the plaintiff, and any subsequent counter-offers there recorded, were made with the plaintiff's knowledge, permission or instructions. For the reasons I have given, I do not accept Mr Schipp's evidence that suggests the contrary. 417. Fourthly, giving advice to the plaintiff to the effect that it was likely the claim would be unsuccessful in the light of the so-called "damning video evidence" without engaging in a discussion on the manner in which such a result could arise, was also a breach of duty of care. I do not accept Mr Schipp's evidence to the contrary. Given my credit findings, in the absence of notes made by Mr Schipp I am not prepared to infer from the circumstances that he simply left it to the plaintiff as to whether or not the final offer would be accepted. Instead, I find that he actively procured such acceptance by recommending the offer to the plaintiff, knowing the plaintiff trusted him and would rely on his advice. 418. Fifthly, tendering to the plaintiff advice to the effect that if the principal proceedings were unsuccessful he would be unable to obtain any further workers' compensation benefits also amounted to a breach of duty of care. In the absence of contemporaneous notes made by Mr Schipp, I am not prepared to accept that he adhered to his usual practice of giving such advice. I prefer the evidence of the plaintiff which was to the effect that he gave no such advice. 419. Sixthly, advising the plaintiff that he would be precluded from obtaining Centrelink benefits for 52 weeks from 1 August 2002, on the basis of a hurriedly prepared calculation that could not be checked by reason of the manner in which it was set out, also amounted to a breach of duty of care in circumstances where the calculation was incorrect and ought to have been outlined accurately so that it could be followed and checked for accuracy. That said, the plaintiff does not assert that he relied upon this aspect of the breach of duty of care, and therefore it is of no causal or relevance to this case. Negligence of the defendants 420. The requirements of s 5B of the Civil Liability Act 2002 must be satisfied before a breach of duty of care can be held to have been negligent : Erwin v Iveco Trucks Australia Ltd [2010] NSWCA 113 per Sackville AJA at [81], citing Roads and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd [2009] NSWCA 263, per Campbell JA at [172]. 421. Whilst s 5B is to be taken as a reiteration of the considerations identified by Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, at [47] - [48], thus requiring those factors to be weighed: Erwin, at [82]-[83], the requirements of s 5B(1)(b) have also been characterized as being a slightly more demanding test than the position at common law : Shaw v Thomas [2010] NSWCA 169, per Macfarlan JA at [44]. 422. It is against this background that the actions of Mr Schipp have to be assessed. In the following paragraphs I set out my considerations of s 5B issues. 423. First, there is no doubt that the plaintiff was at risk of suffering economic harm if he relied upon a representation that was made to him in circumstances where that representation was untrue, and where it caused him to give up valuable rights to compensation as a result of such reliance. As a solicitor, Mr Schipp must have foreseen this, and must therefore be taken to have known this : s 5B(1)(a) of the CL Act. 424. Secondly, in the circumstances of settling a common law claim for damages, where settlement was procured by a misrepresentation, the risk of economic harm was not insignificant : s 5B(1)(b) of the CL Act. 425. Thirdly, I consider that a reasonable person in the position of Mr Schipp, as the solicitor for the plaintiff, would have taken precautions to ensure that his client was provided with proper information and advice upon which to make a decision, and would have taken reasonable care to ensure that advice and the decision to settle were not based upon a misrepresentation, in this case, conveying information or the impression that the insurer in the principal proceedings had "damning" video film of the plaintiff when he had no basis in fact for saying such a thing : s 5B(1)(c) of the CL Act. 426. In determining the foregoing matters I have given consideration to the matters required to be considered by s 5B(2) of the CL Act. 427. In this regard, I am satisfied that the plaintiff would not have accepted Mr Schipp's recommendation and advice to accept the insurer's offer of $175,000 inclusive of costs and clear of workers' compensation payments, if Mr Schipp had not represented to him that the insurer had "damning" video film on him and he could "get nothing" from the litigation if he proceeded with it : s 5B(2)(a) of the CL Act. 428. In the circumstances, I am satisfied that the harm that was likely to flow from the representation, and which did in fact flow from it, represented a very serious financial detriment to the plaintiff : s 5B(2)(b) of the CL Act. 429. In considering these matters I am satisfied that for Mr Schipp, any likely burden of avoiding the harm in question was insignificant in terms of the time or trouble that was required to be taken to ensure the plaintiff was given accurate information and proper advice : s 5B(2)(c) of the CL Act. 430. Also requiring consideration is the issue of the social utility of the activity that was undertaken at the time the alleged harm occurred. As a solicitor, Mr Schipp was assisting with the administration of justice in facilitating the disposal of the plaintiff's litigation by means of alternative dispute resolution. That activity, which involved a public benefit, was being undertaken on behalf of the defendants, at the ultimate expense of the plaintiff, for a commercial fee. In those circumstances, it is only just that actions undertaken in advising the plaintiff should include accountability for negligently caused financial loss. 431. Accordingly, the plaintiff has satisfied the requirements if s 5B of the CL Act to justify the characterization of identified breaches of duty of care as negligence on the part of the defendants by reason of their vicarious liability for the acts, neglects and defaults of their employee Mr Schipp. 432. In view of the concessions made, but for completeness, I shall refer to the issue remaining under s 42 the Fair Trading Act 1987. S 42 Fair Trading Act 1987 433. As solicitors for the plaintiff, the defendants, through their employed solicitor Mr Schipp, for whose conduct they were vicariously liable, owed the plaintiff a duty to ensure that their conduct in performing professional services for the plaintiff would not involve either misleading or deceptive conduct. 434. In my view, as a consequence of the findings I have made, representing to the plaintiff that the insurer for the defendant in the principal proceedings had "damning video evidence" on the plaintiff, amounted to misleading and deceptive conduct within the meaning of s 42 of the Fair Trading Act 1987. 435. That section proscribes such conduct. The representatives of the insurer for the defendant in the principal proceedings did not provide Mr Schipp with any factual basis for the making of such a representation. In my view, having accepted that Mr Schipp made the representation in question, and that he did so in a manner that was calculated to induce the plaintiff to compromise his proceedings when that representation was untrue, this amounts to misleading and deceptive conduct within the meaning of the Fair Trading Act 1987. 436. The authorities that deal with the concept of misleading and deceptive conduct in contravention of s 52 of the Trade Practices Act 1974 (Cwth) are equally relevant to the consideration of misleading and deceptive conduct in contravention of s 42 of the Fair Trading Act 1987. 437. For s 42 of the FT Act to be engaged, the conduct must be found to have occurred within trade or commerce. The phrase "in trade or commerce" in s 52 of the Trade Practices Act, 1974, which involves similar considerations to s 42 of the FT Act, is not a term of art but has a restrictive operation involving the central conception of the nature of the activity in question, namely a trading or commercial character : Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17, at [7]; (1990) 169 CLR 594 per the majority at 602-603. 438. In the context of the present case, it was the conduct of Mr Schipp in his dealings with his own client that has been impugned by the plaintiff. This raises questions as to whether a solicitor's dealings with his own client in the course of resolving litigation are caught by the section. There is a body of authority that suggests that it may not be so. For example, a statement made to a court did not constitute trade or commerce : Little v Law Institute of Victoria (No 3) [1990] VR 257, per Kaye and Beach JJA at p 273; Ku-ring-gai Co-operative Building Society (No 12) Ltd (1978) 22 ALR 621, per Bowen CJ at pp 624-5; 36 FLR 134, at 139. 439. However, those cases involved statements made to a court, which was not the case here. In Stockland (Constructors) Pty Ltd v Retail Design Group (International) Pty Ltd [2003] NSWCA 84, Little was construed to be limited to representations made in the course of litigation : per Hodgson JA in Stockland at [22]. 440. The question of whether statements made to a client by his solicitor, in the course of advising upon settlement negotiations is caught by s 42 remains to be analysed. In LT King Pty Ltd v Besser [2002] VSC 354, at [27], in applying Little's case, Osborn J held: "In the case of the practise of law it is not appropriate to describe conduct in the area of litigation as conduct in trade or commerce." 441. In King, at [39], Osborn J came to that view notwithstanding the recognition that the transactional basis of the underlying litigation was in the field of trade or commerce: King, at [39]. 442. It is well recognized that the immunity of lawyers in the conduct of litigation involves public policy considerations requiring that controversies are not to be re-opened once resolved, except in narrowly defined circumstances : D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA12; (2005) 223 CLR 1, per Gleeson CJ, Gummow, Hayne & Heydon JJ at [45]. Within those circumstances lies the question of whether the present case concerns re-opening the resolved litigation, or involves litigation of the circumstances surrounding the resolved litigation. In my view, it is the latter, which distinguishes D'Orta-Ekenaike and the related cases. 443. In view of the concessions made on behalf of the defendants that the outcome of the s 42 issue and the contractual issue ought to follow the result of the claim framed in negligence, I do not need to make a formal finding concerning whether s 42 was contravened by Mr Schipp, and therefore, the defendants, in this case. Conclusions concerning Issue 2 444. I conclude that the defendants, by their employee Mr Schipp, for whom they were vicariously liable, breached the duty of care that was owed to the plaintiff in the circumstances under review. In this regard there is no issue that the plaintiff has satisfied the requirements of s 5B of the Civil Liability Act 2002 for such a conclusion. As a result, I find that the defendants are vicariously liable for the negligence of Mr Schipp. Issue 3 – Whether the representation caused compromise of the principal proceedings 445. A consideration of Issue 3 concerns causation and an evaluation of the plaintiff's reasoning for compromising the principal proceedings. In that evaluation the plaintiff bears the onus of establishing any fact relevant to the issue of causation : s 5E of the CL Act: Council of the City of Liverpool v Turano [2008] NSWCA 270 per McColl JA at [402]. The analytical steps for the statutory requirements for proof of the issue of causation are set out in s 5D of the CL Act. Those steps must be satisfied in this case. 446. The plaintiff claimed that because Mr Schipp told him that the defendant's insurer in the principal proceedings had "damning" video evidence, and because he trusted his solicitor to do the right thing in advising him, when he was told that he could "get nothing" from the proceedings he felt "slayed". He said he therefore took Mr Schipp's recommendation to accept the insurer's offer because he trusted his solicitor to give him proper advice. 447. He said he did so because he felt compelled to proceed in that way because of the advice he had been given by Mr Schipp. This aspect of the evidence requires some consideration in view of the submissions made. 448. The defendants have submitted that a number of pieces of evidence from the plaintiff are inadmissible under s 5D(3)(b) of the CL Act : T 73.36 and T 136.38-T 136.45. 449. The evidence at T 73.16-T 73.36 was as follows: "Q. I'm going to repeat the question I asked you before you went outside, Mr Mills, is this, assume that Mr Schipp told you that the preclusion period was 115 weeks not the 52 weeks set out in the commutation settlement, you recall me showing you that document, don't you? A. Yes. Q. If you'd been told 115 as opposed to 52 what effect, if any, would that have had on your decision to accept the $175,000 offered by the defendant in the personal injury proceedings? A. I think by what Mr Schipp said to me I was left with no choice and I probably was bound to proceed no matter what I was going to cop after that. HIS HONOUR Q. By bound to proceed, what do you mean? A. To move forward with accepting that offer. MCCLINTOCK Q. In saying that, are you referring to he'd said to you about the video? A. Yes." 450. In my view, the above quoted passage does not offend s 5D(3)(b) because it referred to the effect of Mr Schipp's erroneous calculation of the preclusion period of 52 weeks. That is a head of negligence which the plaintiff has conceded he does not rely upon, as he settled his case because of Mr Schipp's statement to him that the insurer had "damning" video film, not on the basis of a specific calculation of the preclusion period. The claim is that he acted to his detriment in reliance on that statement and upon the advice given to him by Mr Schipp to accept the offer. The passage is otherwise admissible to shed light upon the standard of care provided by the defendants. 451. The evidence at T 136.32-T 136.45 was as follows: "Q. If you had not been told about the video, I realise it's a difficult question, but if you'd been told the offer was 175,000 and that's it, what would you have done with that offer? A. If I hadn't been told about the damning video evidence? Q. Yes? A. Your Honour, I wouldn't have accepted that offer. I was happy to run the case. We'd spoken about the fact that we were going - I was there that day to go to Court. I was there to go to the arbitration or to the court or - we had every intention to proceed and to go. And only some time earlier than that, Mr Kirby had given me a range of figures that he was very confident that I was going to get. And so - and Mr Kirby's figures were always a range of figures plus costs. This was 175,000 inclusive of costs. That was a long way out of that realm." 452. The submission concerning the above quoted passage is correct. I will have no regard to the plaintiff's statement as to what he would have done regarding the offer of $175,000 inclusive of costs and clear of workers' compensation payments had there been no mention of "damning" video film : s 5D(3)(b) of the CL Act. Instead, I will analyse the factual evidence and the inferences reasonably drawn from that evidence. 453. Accordingly, the issue falls to be determined subjectively, according to all the circumstances: s 5D(3)(a) of the CL Act. This means that any statement by the plaintiff as to what he might have done absent the negligence is not to be taken into account : s 5D(3)(b) of the CL Act. 454. In conformity with these principles, my analysis proceeds as follows. 455. On behalf of the defendants in these proceedings it was submitted that the plaintiff made his own decision to compromise the principal proceedings. The defendants pointed to the content of the authority to settle, which had been signed by the plaintiff and in which the plaintiff acknowledged instructing his solicitors to settle his claim, knowing this was an irrevocable finalisation of his entitlements common law damages and workers' compensation benefits, and also acknowledging that the settlement was a compromise of what could have been a larger sum that may have been determined by the court : Exhibit "1" pp 390-391. 456. The defendants further submitted that the reality was that the plaintiff was willing to settle the principal proceedings for any reasonable amount available in the circumstances because the insurer for the defendant in those proceedings was investigating his prior accidents. That argument was based on the following propositions : the defendant's solicitor was seeking particulars about prior injuries; the plaintiff had not disclosed his prior injuries to his treating doctors; the plaintiff would be likely to be cross-examined on his prior injuries at the arbitration hearing or at a trial; and therefore the plaintiff's chances of success in the principal proceedings would be compromised. 457. For the reasons that follow, I do not accept the submissions made on behalf of the defendants. 458. First, the authority signed by the plaintiff only provided direct evidence of its contents. There is no issue that the plaintiff had signed the authority. The signing of the authority followed the representation. It was unlikely that a pre-prepared authority of this kind, which I infer from its form was the case, would have contained the details of the representation that was made by Mr Schipp. There is no issue that the plaintiff signed the authority acknowledging that he was authorising a settlement that terminated his rights to claim common law damages or further workers' compensation payments. The authority is not conclusive proof that he did so by taking his own counsel unaffected by the terms of the advice that he had been given by his solicitor. I infer from the fact that the document was prepared by solicitors, and is the type of document upon which the solicitor would be required to give advice, that Mr Schipp gave the advice in the circumstances surrounding the signing of the authority. 459. Secondly, I am not persuaded that the plaintiff has been shown to have had anything to fear in the principal proceedings concerning his prior injury history. That prior injury history was touched upon and explored in these proceedings, as summarised in paragraphs [46] – [61] of my judgment. Such prior injuries were not disentitling factors to the success of the principal proceedings on either on the liability or on the damages issues, if these matters were properly introduced into evidence and the context explained, as would be the ordinary expectation of competent legal representation. 460. In personal injury litigation, courts are frequently called upon to make assessments in damages cases where there is evidence that a plaintiff has had a history of prior injuries and disabilities, including multiple prior injuries. In the principal proceedings, all that was happening in the way of investigation of the plaintiff's earlier injury history was that the solicitor for the defendant was seeking particulars of those injuries to determine whether forensic use could be made of them, as was done in these proceedings. This was a detail which Mr Schipp ought to have given attention to, explored, documented and particularised in sufficient detail in order to protect the plaintiff from the type of criticism now being levelled against him by his former solicitors who have, by their only inadequate preparation, enabled this criticism to be made. 461. That inadequate preparation is readily apparent. The particulars of claim pursuant to DCR Part 9 Rule 27A were filed by Mr Schipp on 17 May 2001 : Exhibit "1" pp 29-32. The plaintiff's letter to Mr Schipp dated 1 October 2001, anomalously stamped as having been received on 10 September 2001, included a list of earlier injuries : Exhibit "1" pp 340, 342. There is no evidence that Schipp updated the filed particulars or made further enquiries of the plaintiff concerning these matters in order to appropriately prepare to deal with them, as would be expected of a solicitor exercising reasonable skill and competence in such circumstances. 462. Thirdly, there is no satisfactory proof in these proceedings that the plaintiff failed to disclose the details of his prior injury history to his treating doctors. The correspondence between the treating doctors, in so far as it records matter of history, represents a condensation of matters about which those doctors thought relevant to question the plaintiff. The terms of the reports do not reveal the questions or the answers, only a summary. The purpose of the consultations was for treatment, not medico-legal analysis. The questioning pathway that doctors would be likely to follow for those differing perspectives would obviously differ. I my view this particular aspect of the defendant's submission is unfair, flawed and should be approached with caution, for the reasons identified in Mason v Demasi [2009] NSWCA 227 per Basten JA at [2] and Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 per Basten JA at [8]. The fact that the prior injury history is not recorded in the medical reports does not necessarily constitute proof that the plaintiff failed to disclose such matters. He may not have been asked the relevant questions to elicit such answers. 463. Fourthly, I consider that the cross-examination that the plaintiff would most likely have received at an arbitration hearing or at a trial would essentially have been the same or very little different the cross-examination he faced in these proceedings on this matters associated with his prior medical history. I do not consider that such matters would have necessarily had a deleterious effect on his credibility or a damages assessment. I consider the submission to the contrary involves unwarranted speculation : Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352. The prevailing assumption must be that competent counsel would have appropriately framed these matters to minimize if not avoid the prospect of adverse findings being made against the plaintiff based on the content of summaries of histories contained in medical reports. This is a commonplace task that faces counsel in every personal injury case where there is conflicting medical evidence based on assumptions. 464. Fifthly, the submissions of the defendants that argues that the plaintiff's prior injury history, if traversed in cross-examination, would have compromised the chances of success of the principal proceedings ignores the reality of the approach to damages assessment where the defendant must take the plaintiff as he is found. The mere fact that an item of undisclosed history emerges does not of itself equate with a failure to succeed. 465. If the evidence at a hearing was that at the time of the subject injury, the plaintiff had a prior injury history of the kind that was outlined in these proceedings, but he was nevertheless able to perform heavy work, and was in fact performing such work when he was injured, as was the case here, then the prior injury history would be unlikely to adversely affect the plaintiff's proceedings other than by perhaps prolonging the length of the case for the additional time taken to explore and explain those injuries in order that they be viewed in the appropriate practical context for the consideration of a damages assessment. 466. Having heard the evidence of the plaintiff with regard to those prior injuries, and whilst giving full recognition to the possibility that judicial minds may differ in the approach to the analysis of such matters, I do not consider the plaintiff's prior injury history raises any disentitling factors on a causation analysis. 467. Rather, in my view, the appropriate way of making an allowance for such factors would be to make have an adjustment to the notional damages assessment. I propose to take this approach in my reasons when dealing with Issue 9. 468. Having accepted the plaintiff's evidence that the representation in question was in fact made by Mr Schipp, I also accept that the plaintiff relied upon that representation when he gave Mr Schipp his instructions to settle his case, based as they were, on the advice given. 469. My reasoning for accepting that there was such reliance is that the plaintiff undoubtedly received advice from Mr Schipp at the time he gave his settlement instructions. I infer that the advice was from Mr Schipp because the authority was addressed to his solicitors. Mr Schipp was the practitioner who was most likely to have produced that authority to procure the plaintiff's signature. There is no evidence that the plaintiff had access to his counsel after the morning conference had concluded before 10.00am, when Mr Arnold recorded the commencement of negotiations. Whilst Mr Schipp did not record the entire detail of the advice given, it is clear from the terms of the settlement authority, that advice was in fact given. 470. The plaintiff would have needed advice from Mr Schipp because of the following circumstances which I am satisfied had occurred: (a) The plaintiff left the conference with counsel believing his case should be valued in the range $350,000 to $450,000. I am satisfied that he firmly believed this was so, whatever either Mr Schipp or Mr Kirby thought to have been the position. I accept the plaintiff's evidence in this regard; (b) The plaintiff had no awareness of the detail of the amounts involved in the negotiations with the defendant's representatives, other than that the negotiations would be opened on his behalf with a high figure. Necessarily this would most probably have involved a figure in the range identified in Mr Kirby's notes; (c) The plaintiff was not a direct participant in the negotiations; (d) The plaintiff was not involved in the detail of the offers made on his behalf by Mr Schipp. In this regard, I am satisfied that the plaintiff's only awareness of the "toing" and "froing" of the negotiations was from the periodic presence of Mr Schipp, who made comments to the plaintiff to the effect that offers that were being made by the insurer were not enough to enable a settlement to be reached. Recognising that this is a serious finding, I am nevertheless satisfied that this is what occurred because of a contest on this issue, I prefer the evidence of the plaintiff to that of Mr Schipp's explanation of his "usual practice", and for the reasons set out in my credit findings. The plaintiff's version of Mr Schipp's conduct in the course of these negotiations is consistent with the type of conduct of Mr Schipp displayed when he concealed from the plaintiff the consequences of his error in calculating the preclusion period for Centrelink benefits. I infer from those circumstances that if Mr Schipp was capable of keeping that kind of information from his client, and concealing the effect of it, then he would also have been capable of not informing his client of the detail of the negotiations that were being conducted on his behalf, including conducting negotiations in a monetary range that was below the plaintiff's monetary expectations from the proceedings; (e) It was only when the plaintiff was made aware that the best offer that was available from the defendant was in the sum of $175,000 inclusive of costs and clear or workers' compensation benefits that it became necessary for Mr Schipp to talk the plaintiff down from his expectations that were in the range $350,000 to $450,000; (f) In the circumstances the plaintiff would have spoken to Mr Schipp about the reasons why the insurer's offer was in the amount of $175,000 on the terms stated, and that this would have led to a need for Mr Schipp to have a discussion about it, because if left to his own devices, I am satisfied that the plaintiff would have rejected the offer, and would have opted to have his case heard, unless he was convinced by his legal advisor, in this case, Mr Schipp, of the need or merit in accepting the offer; (g) Mr Schipp would have realised at that time the plaintiff's case was minimally prepared, and the negotiations were occurring in circumstances where it was in the financial interest of the firm and therefore Mr Schipp, for the case to settle without taking the preparation of it to the next step in readiness for a trial; 471. I am satisfied that it was in these circumstances Mr Schipp introduced the subject of "damning" video film when advising the plaintiff. I am satisfied that he did so in a manner calculated to influence the plaintiff into settling his case. I am satisfied that in those circumstances the plaintiff looked to Mr Schipp for advice and guidance as to what he should do given that his expectations, rightly or wrongly, were for a much higher amount. 472. Those circumstances would have provided the opportunity for Mr Schipp to provide advice to the plaintiff. In the context, there could be no other reason for him to take the plaintiff across the road and away from the courthouse to talk to him. The only compelling topic of conversation that would have been on the agenda at the time would have been the insurer's offer, and what the plaintiff should do about it. 473. Having accepted that Mr Schipp introduced the topic of "damning" video evidence in a manner calculated to influence the plaintiff's decision as to what should be done in response to the offer, and having accepted that the plaintiff felt "slayed" by the circumstances and by the statement that there was "damning" video evidence, I find he would have been at his most vulnerable for being influenced by any advice given to him by his solicitor whom he trusted, and to whom he looked for advice and guidance as to what to do. 474. What then followed was the advice that the plaintiff could "get nothing" and this was followed by Mr Schipp's the recommendation advising him to accept the offer. In these circumstances I am comfortably satisfied that the plaintiff was truthful in stating how, at that time, he felt compelled to take the offer as being the only option open to him, as this was the way in which it had been portrayed to him by his solicitor. 475. Whilst it is true, as was pointed out in submissions made on behalf of the defendants, that the plaintiff could have rejected the offer and run his case, in the face of the advice given, I consider it unlikely that he considered that course to be a viable option in the face of advice from his solicitor that he could "get nothing" and in the face of his solicitor's recommendation that he could get nothing. In my view, the settlement factors identified and relied upon by the defendants to suggest alternative reasons for the plaintiff's settlement instructions do not apply. I consider that the manner and content of the advice given to the plaintiff by Mr Schipp caused the plaintiff to settle the principal proceedings. 476. I consider the foregoing circumstances amply demonstrate that the plaintiff relied upon Mr Schipp's representation which then caused him to compromise his claim in the principal proceedings. In my view the foregoing analysis serves to satisfy a conventional analysis of causation in this case: s 5E CL Act. 477. It therefore remains to consider whether the causation requirements of s 5D of the CL Act are satisfied. In my view, for the reasons that follow, those requirements are met in this case. 478. Factual causation has been established in that were it not for Mr Schipp's breach of duty of care in making the representation to the plaintiff, there would not have been a settlement as the plaintiff would have continued in his belief that he was entitled to damages in the range $350,000 to $450,000, which would necessarily have meant that his case would have proceeded to an arbitration hearing and a later rehearing because the insurer of the defendant would not have offered a sum approaching that range : s 5D(1)(a) of the CL Act. 479. I consider that it is only appropriate to extend the scope of the viability of the defendants to the harm claimed to have been caused to the plaintiff because the events arose out of professional services provided by the defendants, through their employee Mr Schipp, and a duty of care arose from those circumstances : s 5D(1)(b) of the CL Act. 480. In my view, there were no exceptional circumstances shown to exist within the meaning of s 5D(2) of the CL Act. 481. When viewing the circumstances of the plaintiff on the day of the arbitration hearing, and taking into account his subjective belief that he was entitled to receive damages in the range $350,000 to $450,000, noting that such belief was firmly entrenched in his thinking as a consequence of a conference he had with his counsel beforehand, I consider that the plaintiff would have rejected the offer of $175,000 inclusive of costs and clear of workers' compensation payments were it not for the negligent conduct of Mr Schipp, as I have found to have occurred : s 5D(3) of the CL Act. 482. In my opinion, the circumstances of this case do not gives rise to any disentitling factor was that would detract from the scope of liability that would result in a finding that the defendants are liable to the plaintiff in damages for the negligent conduct of Mr Schipp : s 5D(4) of the CL Act. In that regard, the plaintiff entered into a contract of retainer with the defendants. That contact engaged a duty of care on the part of the defendants. The commercial nature of that retainer, together with the professional nature of the duty of care owed, requires that where the plaintiff has established negligence on the part of Mr Schipp, justice requires that the defendants be held to be vicariously responsible for the conduct of Mr Schipp. 483. In my view, the plaintiff has established causation both according to a common sense analysis according to common law principles : March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 50; Bennett v Minister of Community Welfare [1992] HCA 27; (1993) 176 CLR 40, and also according to the statutory requirements of ss 5D and 5E of the CL Act. 484. In summary, my analysis of s 5D of the CL Act issues leads me to the following conclusions: (a) Factual causation has been established in that the negligence of Mr Schipp was the necessary condition of the harm complained of by the plaintiff : s 5D(1)(a) of the CL Act ; (b) As the harm suffered by the plaintiff arose in the course of a professional relationship between the plaintiff where the defendants were rewarded for their services on commercial terms, it is appropriate that the scope of the liability of the defendants be held to extend to the harm so caused : s 5D(1)(b) of the CL Act; (c) The fact that the plaintiff suffered financial harm in the course of the provision of professional services for reward indicates that there are no exceptional circumstances that would contraindicate a finding that the defendants should bear responsibility for the harm so caused : ss 5D(2) and 5D(4) of the CL Act; 485. The plaintiff has therefore satisfied the requirements for proof of causation of his loss being due to the negligence of the defendants. Issue 4 – Probable course of the litigation absent the claimed representation 486. A consideration of Issue 4 requires the determination of the likely course and timing the principal litigation would have taken if the representation had not been made, and if there had been no settlement of the proceedings at the arbitration hearing on 1 August 2001. 487. If there had been no settlement, the options would have been to adjourn the proceedings for amendment of the particulars of claim, or to simply proceed with the arbitration to evaluate the result. In my view the possible need for an adjournment would have arisen once the sticking point of economic loss would have been exposed to the plaintiff during explanations of the various offers of settlement, if proper discussion taken place with Mr Schipp during the negotiations. Having said that, I doubt that an adjournment would have been pursued simply because the more pragmatic course would have been to proceed and call evidence in order to evaluate the result. Either way, I consider that it would have been highly likely that the principal proceedings would ultimately have been listed for a rehearing before a judge of the District Court. 488. In my view this likelihood would have been driven by factors that operated on both sides of the record. In the case of the plaintiff, I consider that absent the representation, his expectations on the value of his case were sufficiently entrenched and sufficiently firmly held so as to require displacement by rational explanation, that an award below the bottom of the range he had in mind would probably have resulted in him seeking a rehearing. 489. Similarly, in the case of the insurer, if an arbitrator had entered an award for an amount more than around $200,000, which was reportedly the view of Mr Harben, but expressed to have been inclusive of costs, the insurer would have most probably sought a rehearing, depending on the amount, noting that on 25 June 2002 Mr Arnold had advised the insurer of a possible range of damages between $180,583 to $285,396 : Exhibit "1" p 453. Either way, a rehearing would have required the parties to re-evaluate the particulars against the evidence and have the matter listed before a judge. It therefore becomes relevant to assess the probable timing of a rehearing before a judge. 490. The arbitration hearing of the principal proceedings was scheduled to take place on 1 August 2001. At that time, the well-understood and adopted practice was that arbitrators were not required to give detailed reasons for their decisions. The practice was that arbitrators would simply enter an award at some stage shortly after an arbitration hearing. Allowing for the possibility that some time may have been taken for the arbitrator to consider the issues before making an award, I have assumed that an award would most probably have been entered by the end of September 2002. 491. Given the evidence of the plaintiff as to his monetary expectations from the principal proceedings, I consider that it would have been more probable than not that any award entered by the arbitrator would have resulted in an application for a rehearing by the court. The basis for that view is that if the plaintiff had received an award for an amount less than his stated expectation, he would most probably have been the applicant for a rehearing by the court. If, by the terms of the award of the arbitrator, the defendant in the principal proceedings had been held liable for an award of damages in an amount which was of the order of the plaintiff's monetary expectations, I consider that the defendant would have most probably sought a rehearing before the court. 492. In either case, a rehearing could have been sought by either party as of right, subject to any possible disincentives as to costs in the event that a judgment obtained on a rehearing did not exceed the amount of the arbitrator's award by a factor of 20 per cent. I do not consider that such a risk factor would have deterred the plaintiff from seeking a rehearing if the arbitrator's award had not met his expectations. I infer this to be so from the fact that the plaintiff has undertaken the present proceedings, an endeavour which requires an even greater preparedness to undertake financial risk by litigation than was involved in the principal proceedings. 493. In my view, such potential costs disincentives would not have affected the plaintiff's decision. I take this view because the plaintiff's costs agreement with the defendants was, essentially, for a fixed lump sum for the cost of a trial, plus a daily rate beyond the first date. I infer from the plaintiff's evidence of his general attitude to his monetary expectations from his case, that the risk of possibly having to bear the defendant's costs of a rehearing in the event that a judgment did not exceed the arbitrator's award by 20 per cent, held little fear or disincentive for him. 494. In view of the foregoing analysis, and given the well known policy of the court which applied at that time, governing listing arrangements to ensure that a rehearing from an arbitrator's award took place reasonably promptly after an application for rehearing had been lodged, it seems likely that a rehearing would have been completed early in the first of term of 2003. I consider that time to be reasonable having regard to the predictable need to upgrade the particulars and the supporting evidence without causing prejudice to the defendants. In that event, ordinary circumstances prevailing, and allowing for an intervening mid-year court recess, I consider that a judgment in the plaintiff's favour would most probably have been expected to have been entered in the principal proceedings, by the end of November 2003. 495. Within this period I allow for the possibility that the proceedings would not have concluded within the time usually allocated for a civil action to be tried on circuit in Newcastle, thus necessitating some delay during which a partly heard case would be brought back to Sydney to be concluded. 496. I have analysed the likely quantum assessment of the principal proceedings in relation to Issue 9. Issue 5 – Whether the plaintiff was owed a relevant duty of care by his employer 497. A consideration of Issue 5 requires an evaluation of whether, in the principal proceedings, the plaintiff would have been able to establish that his employer owed him a relevant duty of care. In argument, the defendants in these proceedings ultimately conceded that the plaintiff would probably have been able to establish that a relevant duty of care was owed to him. Given the well settled principles governing the relationship between employer and employee, in my view, a finding in the principal proceedings to the effect that the plaintiff was not owed a relevant duty of care would have been an extremely unlikely outcome: Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 per Gleeson CJ at [13]. Issue 6 – Whether employer breached the duty of care owed to the plaintiff 498. A consideration of Issue 6 requires an evaluation of whether the plaintiff would have been likely to have succeeded in demonstrating a breach of duty of care on the part of his employer. Ultimately, the defendants in these proceedings conceded that on the evidence, the plaintiff would probably have been able to establish a breach of duty of care on the part of the employer. 499. Given the plaintiff's description of the manner in which the incident in question occurred, it seems to me that it would have been most unlikely that a contrary finding would have arisen. I take this view because of what I consider to have been the inherent unreasonableness and lack of safety involved in the system of work, which required the plaintiff to jump off a ladder to get himself to ground level because the ladder that had been provided to him was too short. The shortness of the ladder meant the plaintiff could not return to the ground without jumping. In my view this involved a clear breach of the employer's duty to provide the plaintiff with a safe means of access to and from the place at which he was required to carry out his work. 500. Mr Arnold undertook a liability evaluation of the plaintiff's claim for the benefit of his insurer client. At page 5 of his 25 June 2002 letter of advice to his client, he noted that the defendant in the principal proceedings, who was the brother of the plaintiff, was not disputing the facts that underpinned the claim. Mr Arnold advised his insurer client that it would be difficult to defend the proceedings. At page 16 of that letter Mr Arnold predicted "that the Plaintiff would be successful with a Verdict in his favour solely on the question of Liability". At page 17, Mr Arnold's advice in respect of damages was that "a great deal will hinge on how the Plaintiff may present if, in fact, the matter does go to Trial": Exhibit "1" page 442. In my view Mr Arnold's advice was sound. 501. In my view, the prospect of the plaintiff failing to establish a breach of duty of care on the part of the principal proceedings would have been a most unlikely possibility. Issue 7 – Whether there was contributory negligence on the part of the plaintiff 502. A consideration of Issue 7 involves an evaluation of the conduct of the plaintiff in terms of his duty to take reasonable care for his own safety in the workplace. The defendants in these proceedings ultimately conceded that a finding of contributory negligence against the plaintiff was an unlikely outcome of the principal proceedings. In my view that concession was properly made. Accordingly, I find that it would have been improbable that the plaintiff would have suffered a finding of contributory negligence against him in the principal proceedings. Issue 8 – Nature and extent of plaintiff's injuries and disabilities Preliminary 503. A consideration of Issue 8 requires a review of the evidence that identifies the nature and extent of the plaintiff's initial injuries, the treatment he obtained for those injuries, and the nature and extent of the residual disabilities that continued to affect the plaintiff at the time of the notional trial in 2003. 504. The sources of evidence for these matters are the evidence of the plaintiff, the evidence of the treating doctors' reports, and the medico-legal reports that were obtained both on behalf of the plaintiff and on behalf of the defendants. This is particularly so when no contemporaneous statements had been obtained by the defendants for use in the principal proceedings. 505. Subject to matters resolving credibility of testimony, medical reports can be a legitimate source of evidence concerning the matters that affected the plaintiff : Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 per Heydon JA at [70]; s 60 of the Evidence Act 1995. 506. In this case this is particularly so since the plaintiff's former solicitors appeared to have taken no steps to obtain a statement from the plaintiff that contemporaneously dealt with such matters. Such a statement would have served as a useful guide, not only to this analysis, but also for the purpose of focusing questions for medical examiners to report upon and to assist with the process of adducing evidence at a trial of the principal proceedings. No oral evidence was called from any doctor in those proceedings. Difficulty identifying the relevant medical evidence 507. Surprisingly, a difficulty was encountered in reviewing the medical reports relating to the plaintiff for the purpose of determining what medical evidence would have been adduced on behalf of the plaintiff at a notional trial. 508. There is nothing in Exhibit "A", which comprises the former solicitor's file in relation to the principal proceedings, that indicates which of the reports in the solicitor's file were in fact served on the solicitor for the defendant in those proceedings, either at the time of the initial filing of the proceedings, or at the time of the arbitration hearing. The index to Mr Kirby's brief provided no assistance in this regard as it referred to medical reports generically without listing them. If in fact there was a schedule kept by the defendants that indicated which reports had been served and on what dates, it was not in evidence. 509. The extracts of Mr Arnold's file within Exhibit "1" only refers to the report of Professor Ghabrial dated 14 January 2002 as having been served by Bale Boshev. The context was Mr Arnold's tabulated impairment analysis, where he compared the opinions between the plaintiff's medical reports, where Professor Ghabrial's report was the only one mentioned as being a plaintiff's report, compared to the reports of Dr Lim, Dr Smith, Dr Pillemer and Dr Price, who had been engaged to provide reports for the defendant. 510. I shall proceed on the assumption that the correspondence from all of the plaintiff's treating practitioners would have found their way into evidence in the principal proceedings. That said, a reading of those reports indicates that they do not comprehensively deal with the plaintiff's problems. Approach to analysis of medical evidence 511. In the circumstances of this case, with the events in question occurring 9 years before the plaintiff gave his evidence in these proceedings, in order to discern the nature and extent of the plaintiff's injuries, I have reviewed that plaintiff's evidence in the context of the complaints attributed to him by his treating doctors. In this regard, I have not overlooked the medico-legal reports as a source of evidence, but since the attendances of the plaintiff for treatment were problem-based, I consider the reports from the treating practitioners to be a more reliable guide to the documentation of the plaintiff's injuries. The medico-legal reports are of course relevant as a source of guidance to the task of determining the extent of the plaintiff's disabilities. 512. After reviewing the relevant reports between paragraphs [516]-[641], my summary of the plaintiff's injuries, the treatment received, and the disabilities that remain, is set at between paragraphs [642]-[671] of these reasons. 513. To reach that point, it was first necessary to review the evidence of the plaintiff as to his reported problems, and then review the treating practitioners reports and then the medico-legal reports. Plaintiff's evidence as to his injuries 514. When the plaintiff fell from the wheat bin, he became aware of excruciating pain in his left knee. At that time, he felt that something had snapped within that knee. When he fell, the left side of his head struck a rock, and in the course of these events he received a cut to the side of his head. In these events he also suffered pain in his left shoulder and felt pain in his neck in the region C6 to T10. 515. The plaintiff said the "nasty" or severe component of the knee pain substantially subsided after about 24 hours. It appears this was because the plaintiff said he was taking substantial amounts of strong pain killing mediation. The plaintiff said the pain in the plaintiff's left shoulder and neck region continued to bother him and he sought out medical assistance. Due to the remote location of his brother's property, the plaintiff had to travel by train from Moree to Newcastle to obtain medical assistance and treatment. This was a matter that Mr Arnold raised with the insurer as a matter of fact that might cast some doubt on the severity of the plaintiff's injuries : Exhibit "1" p417. Review of records and reports from practitioners who treated the plaintiff 516. Since I have formed the view that the plaintiff's case was inadequately prepared and particularised by the defendants, including by inadequate investigation of the medical issues, I consider it was important to undertake a detailed review of the medical evidence to identify some significant matters that would have an impact on an assessment of damages. I consider that a detailed review is required because of the nature of the attack made to the plaintiff's credit on medical issues. That review is set out in the order in which the treatment or consultation took place. Dr Roger Smith – treating general practitioner – first point of medical contact 517. The plaintiff's first point of medical contact after his injury was with his general practitioner, Dr Roger Smith of Broadmeadow, whose clinical records were tendered by the defendants in these proceedings as part of Exhibit "1" pp 123-142. The records included a pre-injury consultation. 518. In this latter regard, Dr Smith's records show that before the incident in question, namely on 29 November 1999, the plaintiff had consulted him and had complained of his knees feeling weak. The context was not specified and he was given reassurance. This was not explored in the evidence. There was no further pre-injury mention of knee problems in Dr Smith's records until 12 November 2000. I infer this was not a lasting problem until the occurrence of the incident in question. 519. On 12 November 2000, the plaintiff had his first post-injury consultation with Dr Smith. On that occasion Dr Smith noted the history that the plaintiff had twisted his right knee whilst getting out of a wheat bin. At the initial consultation, there is no recorded mention of the neck pain or of the injury to the neck or of a laceration to the left side of the head. 520. On 14 November 2000 Dr Smith saw the plaintiff again. Dr Smith noted the plaintiff had difficulty with reduced extension of his twisted knee, and referred him to Dr Ostinga, an orthopaedic surgeon. 521. In December 2000 Dr Smith saw the plaintiff on several occasions and noted that since the plaintiff's fall he had been experiencing neck pain. He also noted a history of bilateral occipital headaches, he made a note that appears to be a reference to the left shoulder and the need for a cervical x-ray. Dr Smith also noted tenderness in the right para-cervical region and recommended physiotherapy treatment. 522. It appears from Dr Smith's records that there were some initial difficulties in getting the insurer to pay for treatment. This may or may not have influenced the frequency and pattern of treatment. In these circumstances I draw no adverse inferences from any pattern of consultations with the treating practitioners. 523. Dr Smith's records do not contain any early request from Bale Boshev for a report to interpret his notes. The solicitors for Bale Boshev did so in these proceedings and obtained a report from Dr Smith. It was dated 11 August 2009 : Exhibit "1" pp 140A-140C. Having received instructions to act for the plaintiff on 11 April 2001, and having filed proceedings on 17 May 2001, Bale Boshev waited until 11 December 2001 to obtain a report from the plaintiff's treating general practitioner, Dr Smith. 524. Dr Smith's report documented complaints by the plaintiff concerning his right knee, his neck, his left shoulder and his left arm. In his 2009 letter, Dr Smith advised the defendants' solicitors in these proceedings, reasonably in my view, that so many years after these events, he could not usefully add any further detail to his notes that would be reliable. 525. Dr Smith noted that for a time since 2008, the plaintiff had some concerns as to whether he might have had a heart condition because of some complaints of chest pain. This is not a matter that I consider to be relevant to these proceedings as it is well outside the time frame for a notional damages assessment in 2003. In my view, that issue, and any other post-2003 health issues, are not relevant to a retrospective assessment with a cut-off point in a notional trial that would have taken place in 2003. The occurrence of any other health problems after 2003 are necessarily catered for within the allowance of a discount for potential adverse vicissitudes to be applied to the notional assessment. 526. Dr Smith also noted the plaintiff's current grievance about his compensation claim. The context of that note could be suggestive of a psychological problem. 527. On 14 November 2000 the plaintiff underwent a right knee x-ray. This showed a small joint effusion in the sub-patellar bursa. No significant osteoarthritis was seen. Dr Ostinga – treating orthopaedic surgeon 528. On 28 November 2000, at the referral of Dr Smith, the plaintiff was seen by Dr Kim Ostinga, an orthopaedic surgeon. Dr Ostinga noted the plaintiff's inability to straighten his right knee, which appeared to be locked. He suspected a bucket handle tear of the right medial meniscus of that knee. Ms Downs – treating physiotherapist 529. On 3 January 2001, at the referral of Dr Smith, the plaintiff was seen by Ms Chris Downs, a physiotherapist. The plaintiff received 9 treatments for his knee problems. The treatment consisted of ice packs and an exercise programme. The neck problems were treated with a cervical collar to reduce sleeping problems. Dr Ostinga – second review 530. On 20 February 2001, Dr Ostinga reviewed the plaintiff for a second time. At this consultation it was recorded that plaintiff's right knee was reported to have improved, and that he was greatly troubled by his neck, which was the reason given for the delay in having knee surgery. Examination of the right knee revealed marked muscle wasting, medial joint line tenderness, and an inability to straighten the knee joint. Arthroscopy had not yet occurred. Dr Ostinga – third review and arthroscopy 531. On 12 March 2001 Dr Ostinga reviewed the plaintiff for a third time and performed an arthroscopy procedure on the right knee. The suspected bucket handle tear of the meniscus was not confirmed at operation. Instead, a pre-existing condition of osteochondral dessicans of the knee cartilage was observed, with a fresh loose dislodged fragment of articular cartilage originating from the edge of the crater of the knee structure. The fragment was removed. This was followed by physiotherapy. Osteochondral dessicans was identified in the evidence as a degenerative condition of the articular cartilage. Dr Ostinga - fourth review 532. On 12 April 2001, Dr Ostinga saw the plaintiff for a fourth time. He wrote to Dr Smith advising that he thought the plaintiff's capacity for work had not been adversely affected by the injury and a full recovery was expected. He predicted the knee injury would expose the plaintiff to osteoarthritic changes later in life. Curiously, Dr Ostinga stated that the plaintiff's injury was not to be blamed for the dislodgment of the loose body that caused the plaintiff's knee to lock. 533. That view was not fully explained. On a commonsense and legal analysis I doubt that Dr Ostinga's comment would have remained unexplained at a trial so as to cause a difficulty of proof of causation in the sense of there being a connection between the plaintiff's injury and subsequent problems that were treated by Dr Ostinga : Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538. His subsequent letter of clarification to Bale Boshev, which was dated 31 May 2001, confirmed his earlier letter was not entirely clear, and he confirmed the causal relationship between the right knee injury and the dislodgment of the loose fragment. That connection has been confirmed by other specialists as well. Dr Kuru – spinal orthopaedic surgeon 534. On 13 February 2001 the plaintiff underwent a CT scan of his cervical spine which was interpreted by the radiologist as showing early degenerative changes at the levels C4/5 and C6/7. 535. On 14 February 2001, at the request of Dr Smith, the plaintiff saw Dr Robert Kuru, a spinal and orthopaedic surgeon. Dr Kuru was of the initial opinion that it was possible the plaintiff had a C3 disc herniation with hyperaesthesia over the C4 nerve distribution, noting the complaints of neck pain, hyperaesthesia of both shoulders, severe headaches and a twisted right knee. He recommended flexion/extension exercises. He suspected an upper cervical nerve root traction injury. He also arranged for a neck MRI scan to investigate the complaints of neck pain and bilateral shoulder pain. 536. On 1 March 2001 the report of the MRI scan indicated some minor degrees of central and broad based disc protrusions at the levels C4/5, C5/6 and C6/7. Dr Kuru considered these signs to be consistent with early degenerative changes. He suggested physiotherapy, exercise and intermittent anti-inflammatory medication. Dr Kuru – second review 537. On 14 March 2001, Dr Kuru saw the plaintiff for a second time, and on that occasion he reviewed the results of MRI investigations. He formed the view that the plaintiff had a soft tissue injury of the neck with exacerbation of pain and early degenerative changes in the cervical spine. He recommended exercises, intermittent anti-inflammatory medication and physiotherapy. 538. On 14 June 2001, pursuant to a request for him to provide a report, Dr Kuru wrote to Bale Boshev to outline his medical assessment of the plaintiff. The questions asked of him were not apparent from the report. He advised that the plaintiff had suffered a soft tissue neck injury. He thought his ability to perform manual labour had obviously been affected, to the point that any form of manual labour was precluded at that stage, due to discomfort. He advised the condition was not static and suggested a review in a further 6 months. There were no further reports obtained from Dr Kuru. Dr Pacey – treating rehabilitation specialist 539. On 29 March 2001, at the referral of Dr Smith, the plaintiff was examined by Dr D Pacey, a consultant specialist in rehabilitation and pain management. She concentrated her assessment to the plaintiff's complaints of knee problems, as well as his neck and associated shoulder problems. She thought the plaintiff had suffered a disruption to the zygapophyseal joints of the neck and had associated muscular tension and headaches. Her recommendation was for exercises rather than therapeutic intervention. Dr Ostinga – third review 540. On 14 August 2001 the plaintiff saw Dr Ostinga, again complaining of continuing symptoms in his right knee. Dr Ostinga analysed the plaintiff's knee problem as being due to ligament contraction because of the prolonged flexion position in which the plaintiff had held his knee before it was surgically unlocked. Since then the plaintiff continued to complain of continued locking or what was described as a pseudo-locking associated with episodes of pain in the knee joint. 541. Dr Ostinga's re-examination revealed slight restriction in the range of flexion movement in the right knee. This caused the knee to occasionally fall forward. He suggested the need for continued home exercises. 542. Confusingly, in the light of his letter dated 31 May 2001, Dr Ostinga stated that the relationship between the plaintiff's locked knee and the injury was "tenuous". My view of that comment is that the basis for it is unclear. As earlier indicated, I consider it would be unlikely to be reflected in a finding of a lack of causal connection between the knee injury and the continuing disabilities relating to the knee, including the tendency to fall forward or to give way. Dr Ostinga's comment perhaps typifies the different analytical pathways between medical and legal perspectives on causation issues. Dr Smith's 11 December 2001 letter to Bale Boshev 543. On 11 December 2001 Dr Smith provided a report to Bale Boshev pursuant to a request that he do so. Dr Smith prepared a summary of the treatment to date. That summary covered the matters already traversed in the preceding paragraphs. 544. In addition, Dr Smith identified a history of the plaintiff having fallen in October 2001 due to right knee instability. The date of that fall, namely 18 October 2001, was documented by the plaintiff in a letter to his solicitor on 14 November 2001: Exhibit "1" p 351. In this regard, the plaintiff is recorded as having given Dr Smith a history of having twisted his left ankle and jarred his left shoulder. Dr Smith recorded that in addition, when the plaintiff fell to the ground he exacerbated his neck condition. 545. At that time Dr Smith certified the plaintiff as unfit for work. In his findings on examination, Dr Smith noted tenderness in the plaintiff's lower cervical spine and in his trapezius muscles. The plaintiff's experience of numbness in both arms was also noted. Dr Smith thought the plaintiff's unfitness for work was due to his ongoing neck condition. He thought there would seem to be permanent disability to the neck and possibly the right knee. Dr Smith was deferential to specialist opinion on these matters. Dr Guttmann – radiological examination of left shoulder following fall on 18 October 2001 546. On 12 December 2001, at the referral of Dr Smith, the plaintiff was examined by Dr Albert Guttmann, a radiologist. The purpose of the examination was to x-ray the left shoulder following his fall on 18 October 2001, when his right knee had given way from under him. Dr Guttmann diagnosed a subluxation of the acromio-clavicular joint with bony fragments seen to overly the region. Dr Guttmann was uncertain as to whether this was due to a new or an old injury. He favoured the latter explanation. He expressed that view as a matter of probability, but the underlying reasons for that view were not included in his short letter to Dr Smith. Dr Guttmann also stated that a bony avulsion was also suggested on his ultrasound examination of the plaintiff's left shoulder. 547. It was apparent from Mr Kirby's letter dated 18 January 2002 at page 356 of Exhibit "1", that it was intended not to serve this report from Dr Guttmann. Notwithstanding that advice, which I expect was acted upon, I consider that Dr Guttmann's report would have appeared in the evidence in any event, as it would have been revealed when Dr Smith's clinical notes were produced on subpoena at a trial. I therefore consider that it is relevant for this report to be considered in this context for the purpose of analysing the plaintiff's injuries and disabilities. Dr Pacey – second and third reviews 548. On 28 March 2002 and 30 May 2002, Dr Pacey respectively saw the plaintiff again for a second and a third time. 549. In respect of the second review and consultation, which was on 28 March 2002, after reviewing her earlier findings, she recorded a history of the plaintiff having injured his right knee and having twisted his left ankle after his knee had given way in October 2001. She recorded the history of a fall having occurred on that occasion when the full force of the fall was taken on his left shoulder, resulting in him experiencing a sharp excruciating pain, apparently aggravating an old injury to the left shoulder, which had involved disruption of the acromioclavicular joint at that time. The problem had apparently been treated at the time of the original injury and the plaintiff reported that the shoulder had not been painful before the fall in October 2001. On this occasion in 2002, Dr Pacey injected the plaintiff's left shoulder. 550. At the consultation on 30 May 2002 the plaintiff reported continuing to have sharp left shoulder pain, especially on lifting or when stressing his shoulder. Dr Pacey noted that he was taking Panadeine Forte 2-3 times per day. She recorded a history that physiotherapy treatment had to be ceased because it tended to aggravate the pain. 551. Dr Pacey summarised the plaintiff's ongoing problems comprising continuing pain in the whole of his neck, pain from occiput down the midline and into the upper thoracic spine, sharp left shoulder pain, radiated pain down on left arm and fingers and to the shoulder tip on the right side of the left shoulder, a sharp shooting pain going up the neck into the head around temples, associated with some visual disturbance, blurriness and a feeling of dizziness. She also noted that the plaintiff's right knee continued to ache and to occasionally give way. 552. Dr Pacey's findings on examination were that the plaintiff sat in a very protected posture with hunched shoulders, and in apparent pain. Tenderness was also noted in the neck. At this last examination she noted that the plaintiff's neck movements were reduced to about half the normal range in all directions. She recorded restriction of left shoulder movements and tenderness over the joint. 553. After reviewing the history, the clinical findings on examination, and the results of imaging studies, Dr Pacey assessed the plaintiff as suffering from neck pain and knee pain as a result of the original fall in the workplace, producing muscular tension and tenderness, noting the possibility of an underlying zygapophyseal joint destruction. She made the connection between the plaintiff's knee problems and the aggravation of an old left shoulder injury which occurred in the more recent fall, and which other evidence identifies as having occurred on 18 October 2001. 554. Dr Pacey restricted her assessment of the plaintiff's fitness to work solely in relation to his neck and shoulder problems. She specifically commented that she did not assess his knee problems. 555. In Dr Pacey's assessment, the plaintiff was not fit for work in his previous occupation as a truck driver/operator and was not fit for any work that required lifting. She was of the view that the plaintiff was unfit for work of a like nature. 556. I have construed Dr Pacey's opinion to state that the plaintiff has had a material aggravation of a pre-existing left shoulder injury. This conclusion derived from her assessment of the plaintiff of having a 15 per cent permanent impairment of the left shoulder, 50 per cent of which was due to the pre-existing or longstanding injury. It follows that the remaining 50 per cent was due to the fall the plaintiff suffered on 18 October 2001. I consider this to constitute a material aggravation of the pre-existing condition, particularly where the history given by the plaintiff was that the previous condition had become quiescent in that it had not given him pain for some time, until the fall occurred. 557. Dr Pacey referred the plaintiff to Dr Stephen Kemp for specialist review of his left shoulder problems. Dr Kemp – orthopaedic surgeon specialising in hand and upper limb surgery 558. On 10 July 2002, at the referral of Dr Pacey, the plaintiff was assessed by Dr Kemp. He recorded the history of the plaintiff having slipped and fallen down some stairs in about 1993 which had resulted in an injury to his left shoulder, which apparently settled following a depot steroid injection and physiotherapy. He recorded the history that the shoulder had not troubled the plaintiff before the 8 November 2000 injury. He then explored the history of the plaintiff having injured his left shoulder and aggravating the neck condition in the subsequent fall in which his right knee gave way whilst walking on uneven ground. He recorded that this fall had caused the plaintiff to develop recurrent left shoulder pain. 559. Dr Kemp recorded the plaintiff's history of pain over the anterior and superior aspects of the left shoulder with reports of pain when lifting and inability to lay on the left side, causing regular waking, at least five times per night. He recorded the plaintiff's own impression that 50 per cent of his problems were emanating from the left shoulder and 50 per cent from the neck. He injected the acromioclavicular joint with local anaesthetic, without significant benefit in pain reduction. 560. Dr Kemp thought the plaintiff's situation was a difficult one. He characterised the plaintiff as being in that group of patients where treatment should necessarily be approached with caution because his problems were far more diffuse than just the acromioclavicular joint injury. He was reluctant to offer surgery and suggested exercises and physiotherapy. 561. It is clear from Dr Kemp's report that he had assumed that the dislocation of the plaintiff's acromioclavicular joint occurred at the time of the October 2001 fall. Having regard to the opinion of Dr Pacey, who thought that the plaintiff's left shoulder impairment involved aggravation of an old left shoulder injury, I do not consider that it is important to try and reconcile the opinions of Dr Guttmann, Dr Pacey and Dr Kemp as the end result necessarily remains that the plaintiff has suffered a significant aggravation injury, whatever the underlying condition. 562. It is also necessary to note that the difficulty in reconciling these opinions is as a result of the state in which the medical evidence and the investigation into the medical evidence was left by the defendants in these proceedings, in the course of preparing the plaintiff's principal proceedings for a hearing. In any event, the defendants in these proceedings did not challenge the opinion of Dr Pacey as to the fact of an aggravation injury to an older left shoulder injury. I have assumed that if her opinion was to be challenged, she would have been required for cross-examination. Medico-legal reports obtained by Bale Boshev 563. In the context of a state of uncertainty as to which medical reports had being served by the defendant in the principal proceedings, it is relevant to identify the available reports that were specifically addressed to the defendant in the principal proceedings. Only one medico-legal report was obtained by Bale Boshev from a non-treating medico-legal expert, namely Professor Ghabrial. Reports addressed to Bale Boshev from treating practitioners 564. The defendants in these proceedings obtained a number of historical treatment reports Dr Ostinga on 12 April 2001, which was the subject of a later clarification by Dr Ostinga on 31 May 2001, from Dr Kuru on 14 June 2001, from Dr Pacey on 19 and 25 June 2001, from Ms Downs on 3 October 2001, and from Dr Smith, the general practitioner, on 11 December 2001. I have already referred to these reports in the course of the preceding summary. Professor Ghabrial – consultant orthopaedic and spinal surgeon 565. On 14 January 2002, at the request of Bale Boshev, the plaintiff was assessed by Professor YAE Ghabrial, a consultant orthopaedic and spinal surgeon. Professor Ghabrial obtained a history from the plaintiff concerning the 8 November 2000 injury and in relation to the aggravation injury that occurred in October 2001 which caused jarring to the left shoulder and which, on the history, he noted had settled down sometime beforehand. 566. Professor Ghabrial's findings on clinical examination of the plaintiff are recorded as showing generalised tenderness all over the neck, with muscle spasm. He also noted generalised weakness of the left upper limb and tenderness and discomfort in the right knee on examination. He also reviewed the imaging studies he identified in his report and he interpreted the neck MRI scan performed on 1 March 2001 as showing minor and central broad-based disc protrusions at levels C4/5, C5/6 and C6/7. 567. Professor Ghabrial identified the plaintiff's problems as being: (a) injury to the levels C4/5, C5/6 and C6/7 discs, with a minor degree of protrusions more pronounced at the C4/5 segment towards the left side; (b) post-traumatic subluxation of the left acromioclavicular joint; (c) soft tissue injury to the right knee; (d) soft tissue injury to the right wrist (resolved); (e) soft tissue injury to the left ankle (resolved). 568. Professor Ghabrial noted that the right knee symptoms had settled down to some extent following the arthroscopy surgery. He also noted the continued residual symptoms in the neck and upper limbs, and he described these as being consistent with the injuries sustained. 569. Professor Ghabrial was of the opinion that the plaintiff had permanent impairment of his neck assessed at 40 per cent, permanent loss of efficient use of his right upper limb at or above the elbow assessed at 10 per cent, permanent loss of efficient use of the left upper limb at above the elbow, assessed at 15 per cent. He also assessed the plaintiff's loss of efficient use of the right lower limb at or above the knee as a result of the right knee injury at 5 per cent. He stated his conclusion that the plaintiff's condition had stabilised and that the identified impairments were permanent and were due to the effects of the injuries sustained on 8 November 2000. 570. Professor Ghabrial was of the opinion that the plaintiff remained unfit for activities involving heavy lifting, excessive bending and twisting on a permanent basis, as well as activities involving excessive use of the upper limbs above shoulder level. Professor Ghabrial was of the opinion that the plaintiff would never be able to go back to his previous employment as a truck driver, or to any employment involving these activities. He did not comment on the plaintiff's ability to work as a spinologist. Medico-legal reports commissioned on behalf of insurer in the principal proceedings 571. Exhibit "1" contained reports from 4 medico-legal experts and a non-medical functional capacity evaluation report from an organisation called Workhab. These reports were commissioned by the defendant in the principal proceedings. These reports are reviewed in the paragraphs that follow. Dr Lim – consultant occupational physician 572. On 9 January 2001, at the request of the insurer, the plaintiff was examined by Dr Michael Lim, a consultant occupational physician. He recorded a history of constant severe pain in the neck associated with stiffness and a sensation of intermittent tingling. At that time there were no radicular symptoms recorded. He also recorded constant but less severe pain in the anterior right knee and noted that there had been a few occasions on which the knee had given way. 573. On physical examination he noted the plaintiff to walk with a slouched posture and with a slight limp. He noted asymmetry of the plaintiff's legs, with a noticeable varus deformity of the right knee, which appeared swollen and effused. He noted ligamentous laxity in the right knee and he stated, without reasons, on the balance of probability, that this laxity was pre-existing and of longstanding rather than acute and recent. It is not clear as to how he arrived at the conclusion that the laxity predated the injury on 8 November 2000. He also noted the presence of patello-femoral osteoarthritis. 574. Dr Lim was of the opinion that the plaintiff was in need of arthroscopy and quadriceps strengthening exercises for his right knee. The effect of his report was to associate the knee problems with the plaintiff's fall at work on 8 November 2000. 575. Dr Lim noted the history of delayed onset of neck problems over the days following the fall, and stated that this "would suggest" the neck symptoms were not related to the fall. He raised the possibility of the neck symptoms being psychosomatic. His comments were based on what he described as exaggerated irritability and stiffness in the neck, which he thought was inconsistent with normal radiological appearance of the plaintiff's cervical spine on x-rays taken on 11 December 2000. In view of subsequent radiological abnormalities seen in the plaintiff's neck, Dr Lim's views as to the plaintiff's neck problems, may have to be discounted somewhat. 576. Dr Lim's report went on to address a schedule of questions that had been put to him by the insurer. In answers to those questions he associated the right knee problems with the incident, but felt that the neck problems were not due to the incident. He suggested temporary work restrictions involving mobility, and recommended the engagement of an injury management consultant for rehabilitation. He stated that impairment would probably be permanent in the right knee, but it was premature to assess this. He reiterated his view that the radiological findings of the cervical spine indicated to him that the plaintiff had no permanent impairment of his neck. 577. Dr Lim examined the plaintiff again on 7 September 2001 and furnished his report of that examination to the insurer on 12 September 2001. 578. For his second examination of the plaintiff, Dr Lim apparently reviewed a copy of Exhibit "B". Dr Lim also elicited a history of prior injuries, including an earlier lower back strain years earlier which had led to a workers' compensation claim, an injury to the left shoulder as well as the head injury the plaintiff had described in his evidence. 579. Dr Lim recorded a history of ongoing neck pain involving throbbing and tingling as well as a feeling of the plaintiff's right arm feeling "dead", as well as a feeling of weakness in the left arm, neck pain extending to both shoulders and a sharp pain at the back of the skull. He also noted a complaint of "feeling dead" on the side of the body when laying on that side at night and a complaint of disturbed sleep. He also recorded a history of improvement in the right knee, but with a remaining feeling of weakness and a tendency for the knee to give way. 580. As a result of being provided with a copy of MRI report of the plaintiff's cervical spine, Dr Lim changed his earlier opinion about the plaintiff's neck condition. He said the plaintiff had developed cervical spondylosis, a degenerative disc disease of the neck of constitutional origin. He claimed any association and injury to the back of the head and the plaintiff's subsequent neck symptoms, "would be coincidental". 581. Dr Lim described the plaintiff as being an unconvincing historian. He noted the presence of symptoms indicative of psychological influence on symptoms. He described the relationship between the plaintiff's neck pain and the work injury on 8 November 2000 as being "at best tenuous" and was dubious about the extent of an actual injury to the neck. He described the effect of the plaintiff's knee injury as being a temporary aggravation of pre-existing osteoarthritis, the effect of which had ceased, rendering any ongoing symptoms to being due to underlying degenerative constitutional disorder. He was unconvinced that the plaintiff had any significant impairment of the neck or right knee that incapacitated him for work. Dr Price – consultant occupational health physician 582. On 4 June 2001, at the request of the insurer, the plaintiff was examined by Dr ED Price, a consultant occupational physician. Dr Price found it difficult to follow the plaintiff's history and apparently experienced difficulty in obtaining a past occupational history and medical history. Dr Price noted the plaintiff had recently taken 3 Panadeine Forte tablets. The plaintiff thought this may have affected his coherence at the interview. 583. Dr Price recorded a history of complaint of a severe neck pain radiating from the back of the neck into the temple region. He noted that there was no longer a history of the right knee locking, but that there was a complaint of pain on the inside of that knee. 584. Dr Price noted the plaintiff had extremely limited movement of the neck and claimed that this was due to embellishment on the part of the plaintiff. He said he found the plaintiff was extremely difficult to examine but nevertheless diagnosed a posterior cervical strain with associated ongoing pain. He also accepted some ongoing symptoms in the right knee post-arthroscopy. 585. Dr Price attributed even right knee pain to an aggravation of a pre-existing condition which was in the process of settling down following removal of the loose fragment from the knee joint. He thought that a large part of the plaintiff's knee problems were due to a pre-existing derangement of the knee. In expressing that opinion he did not appear to have factored into his analysis the fact that beforehand, the plaintiff did not have such problems. He expressed the view that the plaintiff was not fit for his pre-injury duties, but may be fit for supervisory duties. Remarkably, he expressed the opinion that he felt the plaintiff would not be very co-operative with rehabilitation. He recommended that the plaintiff be investigated because of his prior accident history, his view was that there was embellishment in the plaintiff's presentation, and the fact that in the past the plaintiff had used a different surname, notwithstanding that the reasons for this had been explained as being legitimate. 586. Dr Price was of the opinion that the plaintiff would regain his pre-accident health status within 6 months. 587. Dr Price re-examined the plaintiff on 24 July 2002. After reviewing the previous history, including the previous injury history, which he explored in greater detail on this occasion, Dr Price also explored the history of the fall in October 2001 when the plaintiff's right knee gave way from under him, causing him to fall, twist his left ankle, fall on his outstretched left arm and take the force of the fall on the left shoulder. 588. Dr Price commented upon the apparently minimal treatment the plaintiff had for his left shoulder injury following that fall, but noted the history of cortisone and local anaesthetic injections that were administered by Dr Pacey and Dr Kemp. 589. Dr Price noted the ongoing history of the right knee occasionally giving way, of ongoing neck pain, with associated sleep disturbance, and of ongoing problems of the left shoulder and left arm. 590. Dr Price claimed that the restriction in the neck movements appeared embellished, and on close examination of the subluxed acromioclavicular joint, the movements of the left shoulder appeared to him to be purposefully restricted. 591. Dr Price reiterated his earlier view that the plaintiff was an extremely difficult patient to examine, and noted what he had perceived as inconsistencies in his history. His opinion cast doubt upon the attributability of some of the plaintiff's symptoms to the original injury and to the subsequent fall. He expressed the view that ongoing symptoms were due to pre-existing conditions. He re-visited his previous diagnosis attributing the neck injury to the fall, and sought to inculpate the earlier history of skull fracture as a causative factor, indicating that the neck injury was simply an aggravation, which had settled by the time of his examination. The tenor of his report expressed obvious scepticism of the plaintiff's veracity. Dr Anthony Smith – consultant orthopaedic surgeon 592. On 21 December 2000, at the request of the solicitor for the defendant in the principal proceedings, the plaintiff was examined by Dr Anthony Smith, a consultant orthopaedic surgeon. Dr Smith saw the plaintiff before the arthroscopy and he noted a complaint of continuing knee pain, albeit with reduced swelling, and neck pain which was reported as being worse than the knee pain. 593. Dr Smith viewed the same 11 December 2000 x-rays that Dr Price had viewed and described as being normal. In contrast to that view, Dr Smith identified what he described as being neurocentral joint changes at C3/4, C4/5 and C5/6, with a narrowed disc space at C4/5 with the presence of reactive change. He said the x-ray of the right knee suggested no significant arthritis. Dr Smith noted that the plaintiff was favouring his right leg with extension being blocked. 594. With regard to the plaintiff's complaints of neck problems, Dr Smith was of the opinion the plaintiff had injured his head and neck and as a result had neck pain and headaches. He characterised these as, reasonably, being an aggravation of a pre-existing degenerative condition. 595. With regard to the plaintiff's complaints of right knee problems, Dr Smith thought there was objective evidence of disability. He saw no indication for arthroscopy notwithstanding the plaintiff's inability to extend his knee. He considered the plaintiff to have been unfit for work at that time. 596. On 4 October 2001, Dr Smith re-examined the plaintiff. He noted some improvement in the right knee and noted the history of the right knee giving way. He noted a continuing history of ongoing neck pain, which had become worse since the previous examination. Dr Smith thought the plaintiff was fit for work at this time, but he wanted to be given some material from Dr Ostinga regarding the operative findings. 597. Dr Smith thought that some of the plaintiff's restrictions in movement in the neck and shoulders were un-physiological, and were manufactured. There is a difficulty in understanding that comment. If the complaints of pain were un-physiological that would be suggestive of manufactured symptoms. However, it would appear as a matter of logic, that movement was by its very nature physiological. There is an unexplained and unresolvable dichotomy in this aspect of Mr Smith's report. 598. Dr Smith expressed an interest in being informed of the neck MRI studies. He thought the plaintiff's behaviour may have had a masking effect on his neck problems. I interpret this to mean either that he is suggesting that the plaintiff was manufacturing symptoms, a comment which is tantamount to an allegation of malingering, for which there is a heavy medical onus of proof, or that the plaintiff has become psychologically affected by his symptoms. These two entities have different credit implications. 599. Despite acknowledging the Expert Witness Code, Dr Smith has not explained his reasons for suggesting that the plaintiff's weakness in the left upper limb and hypoaesthesia were manufactured. 600. The most significant part of Dr Smith's second report was his statement that the prognosis was unclear. He expressed the opinion on the balance of probabilities, without indicating what tipped the balance for his analysis, that the plaintiff was probably fit for work. He did not identify the work he had in mind as work for which the plaintiff was fit. 601. Dr Smith's commentary pre-dated the plaintiff's 18 October 2001 fall. The insurer did not appear to seek a re-examination by Dr Smith before the arbitration hearing to review that issue. Instead, on 12 August 2002, Dr Smith responded to an enquiry from Mr Arnold. That enquiry occurred before the scheduled arbitration hearing but the response was after the settlement. 602. The content of the enquiry remains unknown. It is not known whether it was verbal or written. It is not clear as to whether Dr Smith had been provided with any further material in order to respond. His reply was in the present tense. His last examination was 10 months earlier. This raises some doubts as to the basis for his comments. 603. Dr Smith's response reiterated an asserted un-physiological manufactured restriction in the range of the plaintiff's neck movements. He stated there "is nothing objectively wrong with his neck clinically". It is not clear whether he regarded the radiological signs as a clinical matter of significance in this context. He further commented that he could not comment on the knee problems, as he did not know what Dr Ostinga had found at arthroscopy. 604. The probative value of Dr Smith's opinions has to be determined in the light of these matters. Dr Pillemer – consultant orthopaedic surgeon 605. On 11 April 2002, at the request of the solicitors for the insurer, the plaintiff was examined by Dr Roger Pillemer, a consultant orthopaedic surgeon. Dr Pillemer noted the plaintiff's main complaints to have been in the neck and the left shoulder whereas beforehand, the main problem was mainly with the right knee. Dr Pillemer was not given the benefit of the plaintiff's x-rays of his right knee but the x-rays of the other areas were available for him to review. 606. With regard to the knee problems, Dr Pillemer felt that the history of the knee condition was fairly typical of a loose body dislodgement. He was of the view that the fall aggravated a longstanding osteochondritis dessicans condition causing a loose fragment to dislodge, and suggested that the fall was a significantly contributing factor to the ongoing symptoms. He suggested further investigation of the right knee for a possible further loose fragment. 607. With regard to the neck and shoulder problems, Dr Pillemer stated that on an acceptance of the correctness of the history of the fall and the striking of the head, the fall was a significant contributing factor to the ongoing neck symptoms. He felt some of the plaintiff's complaints of widespread discomfort were difficult to account for on his examination. At a trial no doubt this issue would have been explored in some detail in an attempt to reconcile the comment with possible psychological factors on the one hand, or possible exaggeration on the other hand. 608. Dr Pillemer expressed the opinion that the plaintiff was unfit for any type of employment at the time of his report, mainly due to ongoing neck and upper limb problems, with the prognosis for predicted ongoing problems in the neck, upper left limb and right knee in the medium to long term. He felt that rehabilitation would be of no use at that time. At that stage, he felt that neither the plaintiff's neck nor his right knee conditions, were sufficiently stable for an assessment of permanent impairment. 609. Dr Pillemer acknowledged the Expert Witness Code. Workhab report – functional evaluation assessment 610. On 25 March 2002, at the request of the solicitor for the insurer, the plaintiff underwent a functional capacity evaluation conducted by Workhab. The report of that organisation was in segments. One segment, which involved a physiotherapy assessment, was authored by Ms Jenny Young. Another segment, authored by Ms Kerri Allwood, a psychologist, dealt with what was described as an employability assessment. 611. The assessments were of doubtful value in the principal proceedings for several reasons. 612. First, at around the time the assessment had been undertaken, Dr Pillemer had expressed the opinion that the plaintiff was unfit for any type of employment due to his ongoing neck and upper limb problems, the prognosis for which was that those problems would continue into the medium to long term. In my view, medical assessments ought to prevail over Workhab type assessments. 613. Secondly, Dr Pillemer considered that rehabilitation would be of no use to the plaintiff as the plaintiff's condition was not stable. The Workhab assessment therefore appears to have been carried out without a full complement of medical information that indicated rehabilitation would be of no use. Thirdly, the results of the evaluation were of dubious validity because, as was reported by Ms Young, the plaintiff advised he was unable to fully participate in the functional capacity assessment because he was feeling light-headed and was experiencing elevated pain levels after participating in the employability assessment that had been carried out upon him. That is a matter that was touched upon in the final report from Dr Pacey, and was obviously outside the expertise of the authors of the Workhab report. 614. Fourthly, the assessments in question made no attempt to assess the plaintiff's ability to work as a spinologist, although the plaintiff's qualifications as a spinologist were known to the authors of the report. Instead, the assessments were restricted to a consideration of the activities of truck driving, general farm duties and machinery operation. That may well have been due to the inadequately limited manner in which the present defendants had particularised the plaintiff's claim for loss of earning capacity. Nevertheless, this was not the only basis upon which the plaintiff's claim for such damages stood to be assessed in the principal proceedings, despite the inadequate particulars. 615. Fifthly, the formulated opinions proffered as the plaintiff's argued capacity to perform closely supervised work which allowed physical restrictions starting at 3 hours per day for 3 days per week, and leading to 20 hours per week in the areas of customer service, reception, or retail sales "with medical supervision" were inconsistent with the opinion of Dr Pillemer, and seemed to me to lack a sense of practicality by reason of the need for medical supervision. It is difficult to envisage such employment positions being available in the labour market generally. Medico-legal reports commissioned by solicitors for defendants in these proceedings 616. The defendants in these proceedings chose to have the plaintiff examined by a paediatric spinal orthopaedic surgeon, Dr JPH Stephen. It was not explained as to why the defendants in these proceedings, did not seek a reassessment by the expert, they had originally chosen, to examine the plaintiff in the principal proceedings, namely Professor Ghabrial. 617. Dr Stephen examined the plaintiff on 28 February 2009. It was not clear as to why this report was commissioned as it dealt with the plaintiff's medical condition post-settlement. This opinion would obviously have been unavailable at the time of the notional trial. In my view, this fact renders the report to be of no relevance, because any medical assessment of the plaintiff's condition after the notional trial date for the notional assessment would be a matter that would have been dealt with prospectively by means of a discount for potential adverse vicissitudes. In my view it would be impermissible to look back in hindsight in these proceedings to make an assessment on the basis of what might have become known post-2003 in any report of the kind prepared by Dr Stephen. 618. In any event, insofar as Dr Stephen proffers the opinion that some of the problems related by the plaintiff were of a non-physical nature, and therefore outside his expertise, this is really a further ground of criticism of the preparation undertaken by Bale Boshev in failing to recognise and investigate the plaintiff's non-physical and emotionally oriented complaint that he was experiencing depression that had set in by October 2001. Consideration of conflicting medical opinions 619. There is a divergence of views within the medical reports tendered as to aspects of the plaintiff's presentation. This has occurred in the context of a significant case, where no medical witnesses were called to give evidence to assist in the formation of views as to which aspects of the medical evidence were more reliable than others. This has given rise to the usual difficulty and analysis burden in assessing the evidence without explanatory evidence. I have therefore approached the task as best I could without that assistance : Majkic v Bonnano [2008] NSWCA 253 per Bell JA at [26]; Larson v Commissioner for Police [2004] NSWCA 126 per Tobias JA at [48]. 620. In my evaluation of the medical evidence I found the material produced by the treating doctors to be the most useful starting point for the analysis because this provided the factual material that comprised records of the plaintiff's complaints of problems for which he sought treatment, rather than the adversarial context of a medico-legal interview. The material was focussed on treatment of the stated or observed problems rather than on a medico-legal analysis. 621. In this case, in the context where the aim of the analysis was to discern the nature and the extent of the plaintiff's complaints, I found the correspondence from the treating doctors, the purpose of which was to communicate matters of medical importance to each other regarding the condition of the plaintiff, based on their clinical acumen in the non medico-legal setting, to be a more reliable guide to analysis of contentious matters than the purely medico-legal reports. 622. In this regard, it struck me that not one of the plaintiff's treating doctors gave the slightest hint in their correspondence that the plaintiff was exaggerating, embellishing or manufacturing his symptoms or purposefully restricting his movements for the purpose of trying to influence the medical examiner to lend support to the case he was seeking to make. 623. That was in sharp contrast to the reports of Dr Lim, who found the plaintiff to be "an unconvincing historian". He adopted a somewhat sceptical stance when considering the nexus between the plaintiff's fall and his neck complaints, describing the connection as coincidence. I found the reasoning for that view to be insufficiently explained and unpersuasive. Further, Dr Lim based his initial views on x-rays which did not reveal the true picture of the plaintiff's degenerative neck condition, as did the subsequent MRI scans. I found this coincidence explanation to be unconvincing. Dr Lim's second and last report pre-dated the plaintiff's October 2001 fall, so it was of limited utility in any event. I therefore rejected Dr Lim's views where they were in conflict with the views of the treating doctors. 624. I found the opinions of Dr Price to be unhelpful to the extent that they were in tension with the opinions of the treating doctors because of a concern he had expressed that he had difficulty obtaining a past medical and occupational history from the plaintiff. I therefore found that his views, to the effect that the plaintiff was embellishing his problems, insufficiently explained and open to unresolved doubt because of the difficulties he experienced with taking the plaintiff's history. I also found his views to the effect that the plaintiff would regain his pre-accident health status within 6 months of his examination of 4 June 2001 to be insufficiently explained and somewhat artificial given that he accepted the plaintiff had a posterior cervical strain with ongoing symptoms which other experts accepted to be of ongoing impact. 625. I also found Dr Price's opinion on the plaintiff's right knee problems difficult to understand insofar as he was of the view that the plaintiff had a pre-existing derangement of that knee, given the absence of prior symptoms of the kind the plaintiff experienced after the accident in question. 626. In relation to Dr Price's second report which followed the examination on 24 July 2002, Dr Price did not explain the basis for his view that the plaintiff was purposefully restricting movement of the left shoulder at his examination. I therefore considered that opinion to lack probative value as it is incumbent upon a medical examiner to state reasons for what is essentially a credibility based finding if that finding is to have any reliability. Further, I found Dr Price's view that the aggravation to the neck caused by the fall on 18 October 2001 to have settled, to be difficult to reliably co-relate to the difficulty he again experienced on his re-examination of the plaintiff. 627. Except where Dr Price agreed that the plaintiff had experienced knee, neck and left shoulder injuries which aggravated underlying degenerative conditions, I found his other, insufficiently explained views of limited probative value to the question of the plaintiff's condition and its prognosis, particularly since he experienced difficulties with examining the plaintiff, which I considered to cast doubt upon the clinical basis of his opinions, especially where none of the treating doctors echoed any such difficulty in examining the plaintiff. 628. I also doubted the clinical basis of Dr Price's views because of his interpretation of the 11 December 2000 x-rays of the plaintiff's neck. He described these as being normal, yet the orthopaedic specialist, Dr Anthony Smith identified neurocentral joint changes to 3 levels of cervical discs and disc narrowing at one of them, with reactive changes. These differences of opinion were not capable of resolution without explanatory oral evidence. I therefore discounted Dr Price's views in favour of the views of the treating doctors who had also recognised the pathology of the neck, evident on x-ray, as I felt their views were more fact-based and therefore more reliable. 629. In considering the views of Dr Anthony Smith I found them to be of limited probative value for several reasons. First, he did not re-examine the plaintiff after the 18 October 2001 fall, and therefore he did not have the full clinical picture when he wrote his commentary on 12 August 2002. Secondly, I found the logic of his argument that the plaintiff's movements evident at his 4 October 2001 examination, were "un-physiological" difficult to understand, for the reasons I identified when analysing his report. 630. I found Dr Anthony Smith's views on the plaintiff having manufactured his reported problems, an allegation tantamount to malingering, not only out of kilter with the expressed views of the treating doctors, but insufficiently explained in any event in circumstances where there was a clinical onus to justify such a view. This was particularly so where he also identified possible psychological factors in operation in the plaintiff's presentation. This implied a level of complexity that was not commensurately reflected in Dr Smith's analysis. 631. In the circumstances I found Dr Anthony Smith's 12 August 2002 opinion that there "is nothing objectively wrong with his neck clinically" to be somewhat confusing, and requiring explanation in view of the earlier imaging findings to which he had referred. The basis of that view was not fully explained as he had not seen the plaintiff in the preceding 10 months before expressing that view and it was not apparent as to what he was given or what he was asked to consider before expressing that view. 632. I also found Dr Anthony Smith's blanket statement that the plaintiff was probably fit for work at the 4 October 2001 examination, to be of limited value where he did not identify the work categories that he had in mind when he made that comment. 633. For the foregoing reasons, I preferred the views of the plaintiff's treating doctors to the views of Dr Anthony Smith, where those views were in conflict with their views. 634. Unlike the opinions of Dr Lim, Dr Price and Dr Anthony Smith, I found the report of Dr Pillemer to be a well reasoned and generally self explanatory opinion, which did not markedly differ from the views of the treating doctors, depending upon an acceptance of the plaintiff's history, which was a fair way of expressing the issue for consideration. 635. The reservation Dr Pillemer had about some of the plaintiff's widespread discomfort being difficult to explain raised questions about psychological issues which were not explored in the evidence. I do not consider it to be fair to make a credit finding about the extent of the plaintiff's complaints in the absence of such evidence in the specific circumstances of this case where, whilst they acted for the plaintiff, the defendants did not follow up upon that issue or seek to elicit further information from the plaintiff on such matters as his complaint of depression. 636. Otherwise, I considered Dr Pillermer's comments concerning the ongoing unstable nature of the plaintiff's problems with his neck, upper limb, and right knee for assessment purposes as at 1 April 2002 to be a useful and rational confirmation of the opinions of the treating doctors. 637. For the reasons I have explained in analysing the Workhab report, I found it to be of no utility in making my assessment because of the opinion of Dr Pillemer that rehabilitation would be of no use at that time, as the plaintiff was, in his opinion, unfit for any type of employment. 638. Following my evaluation of the foregoing reports and opinions I found myself persuaded of the inherent reasonableness of the analyses put forward by Professor Ghabrial, Dr Pacey, Dr Kuru, Dr Kemp, Dr Roger Smith, and with one reservation, Dr Ostinga, as to the reasonableness of their views as to their respective diagnoses of the nature and extent of the plaintiff's injuries and his ongoing disabilities. I therefore found my self-preferring their views to those of Dr Lim, Dr Price and Dr Anthony Smith where there was a conflict of views amongst these doctors. 639. I found the opinions expressed by Professor Ghabrial, Dr Pacey, Dr Kuru and Dr Kemp to be impressive, balanced, and highly likely to prevail at a contested trial of the principal proceedings in 2003. I thought it was also significant that their opinions were to a substantive extent supported by Dr Pillemer. I found the opinions in these reports concerning the restrictions on the plaintiff's activities, including work activities, to be rationally based and compelling acceptance over the contrary views of Dr Lim, Dr Price and Dr Anthony Smith. 640. The reservation I had concerning the opinion of Dr Ostinga was his opinion that the injury on 8 November 2000 was not to be blamed for the plaintiff's dislodged loose body of cartilage in the right knee joint. In my view, at a trial in 2003, on a preponderance of the medical evidence, particularly in light of the clarifying correspondence with Dr Ostinga, I consider a finding of no causal connection between the injury and the clinical finding on arthroscopy, would have been an extremely unlikely outcome following conventional legal analysis. 641. In the result of my analysis of the medical evidence, I find that the preponderance of the medical evidence is wholly supportive of the case the plaintiff would have sought to make at a trial of the principal proceedings in 2003. The extent of that support would have reasonably based findings for significant damages for non-economic loss and for economic loss. Identification of plaintiff's initial injuries sustained on 8 November 2000 642. Following my analysis of the evidence, I set out my findings identifying the specific injuries the plaintiff suffered in the fall at work on 8 November 2000. Right knee 643. I find that when the plaintiff fell onto the wheat rake on 8 November 2000, he severely twisted his right knee. When he did so, he dislodged a fragment of cartilage tissue, which had become detached and loosened within that knee due to an underlying degenerative condition known as osteochrondral dessicans. I find this dislodgment most probably occurred when the plaintiff experienced an excruciatingly painful snapping sensation in that knee at the time he twisted it in the course of his fall, thereby causing an aggravation of the underlying degenerative knee condition. This resulted in pain, locking of the knee and localised swelling. 644. I find that beforehand, the plaintiff's right knee was not causing him any significant difficulties with his mobility, agility or dexterity. I base this finding on my acceptance of the plaintiff's evidence. 645. I have had regard to the entry in Dr Smith's clinical notes to the effect the plaintiff had complained of weakness in both knees on 29 November 1999. In my view, given the isolated occasion of that complaint and its distance in time from the 8 November 2000 injury, and given the absence of any report of ongoing problems of that nature after the plaintiff had received medical reassurance from Dr Smith about those symptoms, it leads me to the view that the knee problems experienced by the plaintiff in 1999 were of a transient and inconsequential nature. I consider this was most likely the case especially since the medical opinions do not proffer a view to the contrary. Head and neck 646. I find that when the plaintiff fell, he struck the left side of his head on a rock, which was located on the ground nearby. I find that in doing so he suffered a laceration to the left side of his head. I find that at this time he also received a jarring injury to his cervical spine, which affected the soft tissues comprising the muscles, ligaments and discs of his neck. I find that when the plaintiff fell, he jarred his left shoulder. The result of these injuries was that the plaintiff developed headaches, neck and upper thoracic pain. 647. I find that the plaintiff had a pre-existing degenerative condition of his cervical spine, as was subsequently identified on CT and MRI scanning of his neck structures. Beforehand, these degenerative changes were quiescent, and were not causing him difficulties. I find that as a result of the jarring from the fall, these underlying pre-existing degenerative changes were asymptomatic, but were rendered symptomatic by the trauma of the fall. Left shoulder 648. I find that when the plaintiff fell, he sustained a jarring injury to his left shoulder. This caused him to subsequently experience pain and discomfort in the left shoulder. 649. The x-ray evidence reveals the plaintiff had previously injured his left shoulder some years beforehand, at which time he probably suffered a dislocation of his left acromioclavicular joint which, had then settled down to become symptom free, and had ceased to cause him difficulties for some considerable time before he suffered the fall at work on 8 November 2000. Summary of treatment and events between 8 November 2000 - 18 October 2001 650. After resting from the immediate effects of his injury, the plaintiff travelled by train from his brother's farm at Moree to Newcastle. I draw no adverse inferences concerning the severity of the injuries suffered by the plaintiff from the fact that he undertook what was referred to in Mr Arnold's materials as a 10 hour train journey, to seek out treatment. It appears that owing to the intensity of the harvesting activities on the farm, no-one was available to drive the plaintiff home to seek treatment. 651. I accept the plaintiff's evidence that in the initial days following the fall on 8 November 2000, his right knee was the principal focus of his pain and discomfort. I accept that in that period the plaintiff was probably less concerned about his other injuries because of his focus on the right knee problems he was experiencing. I consider that in these events the initial effects of those other injuries were probably masked. I find however, that he was experiencing ongoing problems with his right, knee, his neck, left shoulder and associated headaches. 652. Following the plaintiff's consultation with Dr Smith, he was referred to physiotherapy and to specialists for assessment and treatment of these problems. The right knee arthroscopy recommended by Dr Smith was delayed on account of the plaintiff's neck problems. At operation, Dr Ostinga found objective evidence of knee disability. After the loose fragment was removed from the plaintiff's knee at arthroscopy, he was nevertheless left with recurrent difficulties, with the knee occasionally giving way on him when he walked. 653. Between early 2001 and October 2001, the plaintiff remained under medical care at the referral of Dr Smith. Dr Kuru diagnosed an aggravation of underlying degenerative changes in the cervical spine. I find that the plaintiff continued to be affected by this, with resultant neck pain headaches, and pain in the shoulders. 654. In this period the plaintiff was also affected by ligament contraction problems of the right knee due to an earlier prolonged flexion position before the knee was surgically unlocked. I find this was as a result of the injury on 8 November 2000. 655. In the period following the arthroscopy on 12 March 2001 and October 2001, the plaintiff's right knee was improving to a degree, although he still had recurrent episodes of the knee giving way under him. In that period, the plaintiff's left shoulder problems were improving, but his neck pain was not improving, and he remained unfit for work. Material aggravation of injuries caused by fall on 18 October 2001 656. I find that on 18 October 2001, whilst the plaintiff was in the course of walking on uneven ground, his right knee gave way from underneath him, causing him to fall onto his outstretched left arm and hand. 657. I find that in these events, his left shoulder was jarred when it took the force of his fall. I also find that when he fell at this time, he also injured his left ankle. 658. I find that the fall on 18 October 2001 caused significant and material aggravation injuries to the plaintiff's already injured neck and left shoulder. The left shoulder had already been injured years beforehand, probably by a subluxation of the acromioclavicular joint, however, the fall on 18 October 2001 rendered the problem intractably symptomatic. The effect of these aggravation injuries was to perpetuate the ongoing complaints of pain in these areas. 659. Despite exercises and physiotherapy the plaintiff's neck and should problems continued to trouble him. The injection of steroids and local anaesthetic into his left shoulder did not alleviate the problems he continued to experience with that shoulder. Identification of plaintiff's ongoing disabilities 660. When the plaintiff approached the arbitration hearing in August 2002, he continued to experience disability in the described areas, with the exception of the ankle and wrist injuries, which had by then resolved. 661. I accept the evidence of the plaintiff and the opinions of Professor Ghabrial, Dr Pacey and Dr Kemp as to the nature of the plaintiff's ongoing problems. I reject the suggestion that he had embellished his symptoms or that he had manufactured them. 662. I find that the plaintiff was left with significant ongoing neck pain, discomfort and restriction of movement with associated neck muscle spasm. He was also affected by associated headaches and pain radiating to the base of the skull and to his temples. He also had pain at the top of his shoulders. These pains affected both of his upper limbs and to a degree, also affected his sensation in those areas. 663. I also find that the plaintiff continued to be affected by recurrent problems with his right knee due to the original injury. 664. Significantly, the plaintiff's left shoulder was badly affected, with ongoing pain, discomfort, restriction of movement and altered sensation in the left upper limb. The left shoulder pain interfered with his sleeping, and he woke frequently at night due to pain after laying on his left side. 665. I accept the opinions of Professor Ghabrial, Dr Kemp and Dr Pacey as to the very significant physical activity and work restrictions they described, and to which the plaintiff was subject as a result of his injuries. In my view, these work restrictions indicated that the plaintiff was very substantially impaired in his capacity to fulfil a wide range of physical tasks in paid employment, such that any residual earning capacity for light work must be assumed to have been irregular, intermittent and unpredictable. This was so because of the ongoing nature of his complaints together with his need to take strong pain killing medication that affected his focus, and also because of interference with his sleeping patterns. 666. I also accept that as a result of his injuries and the resultant residual disabilities, the plaintiff has found that he was no longer able to carry out all of the physical tasks required by the practise of spinology, as that profession required him to have the full and unrestricted use of both shoulders, and he had become significantly impaired in that regard. 667. As a consequence of my analysis of the medical evidence and the evidence of the plaintiff, I do not accept the submission made by the defendants that plaintiff's problems were largely related to the underlying problems that pre-existed the injuries in question. It is for the defendants to show that the plaintiff's underlying injuries would have caused him incapacity, particularly for work, in any event, either in whole or in material part. The defendants have not discharged that evidentiary burden with acceptable medical evidence that would reasonably lead to such a conclusion: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164. 668. I find that all of the matters complained of by the plaintiff have been caused by, or materially contributed to by the ongoing effects of the injuries sustained on 8 November 2000, and as aggravated by the injuries sustained on 18 October 2001. 669. I also find that these matters had, by 2001, taken a significant emotional toll on the plaintiff, and had caused him to become depressed. The fact that the defendants failed to investigate that matter, and had failed to document it by obtaining expert medical evidence in the principal proceedings, does not preclude the plaintiff's depression from being taken into account in a notional assessment in these proceedings. 670. In my view, the court analysing the available evidence in 2003, would most probably have come to the same or substantially similar conclusions in the principal proceedings. 671. In my assessment, the effects of the plaintiff's injuries and the resultant disabilities would have entitled the plaintiff to a significant award for non-economic and economic damages in the principal proceedings. Issue 9 – Probable damages assessment in the principal proceedings 672. A consideration of Issue 9 requires first, an evaluation of the likely timing of a final judgment in the principal proceedings, and secondly, the identification of the likely components of a damages award in favour of the plaintiff. In this regard, a variety of factors arise. I set out my consideration of these factors in the paragraphs that follow. Approach to assessment 673. In order to reach my conclusions as to the parameters of a likely assessment of damages in the principal proceedings, a review of the particulars of damages and aspects of the medical evidence is required. 674. Having reached the conclusion that the principal proceedings were inadequately prepared and inadequately particularised, I consider that the need to achieve a balance of justice between the parties requires that a notional damages assessment of those proceedings should proceed on the basis that the particulars of claim were truly reflective of the plaintiff's situation at the time of the notional trial. I believe this to be the appropriate approach because the plaintiff was entitled to expect that his case would be prepared according to the standards of reasonable skill and care. In my view that standard required that the case be particularised to accurately reflect his situation at the time an assessment took place. 675. In approaching that task, I have sought to apply my consideration of damages according to what would have been a reasonable state of particularisation at the time, guided by authority : Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442 per Hayne J at [105]. 676. In doing so, I have recognized the need to avoid the application of a hindsight standard driven by a counsel of perfection, as that would be an inappropriate approach. In this regard, notwithstanding my findings that the present defendants engaged in a minimal level of medico-legal investigation of the case, without statements from the plaintiff and other witnesses, and without reflecting the plaintiff's situation in the particulars, I also recognize that amongst solicitors who acted for plaintiffs at the relevant time, there was a range of approaches taken to investigating a case. Some solicitors favoured reliance on treating doctors to provide medico-legal reports rather than engaging independent experts, depending upon the size of the case. 677. That said, in my view, adherence to basic standards of reasonable preparation required that the filed particulars of damage reflected the fact that in the subject accident the plaintiff sustained injuries to his right knee, head, neck and left shoulder, including the aggravation injuries sustained on 18 October 2001. 678. The filed particulars in this case did not do so. The particulars omitted to claim injury to the left side of the head and to the left shoulder. Further, the particulars filed made no claim concerning the plaintiff's inability to work in his profession of spinology. The filed particulars completely omitted any reference to ongoing physical and emotional disabilities that could readily have been formulated from an analysis of the medical reports and from speaking with the plaintiff to obtain his instructions, either in the form of a simple interview, or more formally, by taking a detailed statement from him. 679. Further, ordinary standards of reasonable care in the preparation of a personal injury damages case for a hearing indicate that when Bale Boshev received the report of Professor Ghabrial, which was dated 14 January 2002, that the report would have been read by the solicitor responsible for the preparation of the matter. On doing so, that solicitor would have recognized from the summarised history in the report, that the plaintiff had suffered "another fall" resulting in jarring to his left shoulder, aggravating the left shoulder injury which had previously settled down. A simple investigation of the matter would have revealed that the plaintiff's right knee had given way on him, causing him to fall and suffer either a subluxation of the left acromio-clavicular joint with associated widening of the joint, which an ultrasound examination suggested also involved a bony avulsion, or at least an aggravation of an underlying condition to that effect. 680. The fact of this further injury ought to have been known to Mr Schipp because it was not only referred to in general terms in the report of Professor Ghabrial, but the subluxation and the avulsion injury were reported upon by Dr Albert Guttmann in his radiology report dated 12 December 2001, a copy of which had been provided to Dr Smith, the plaintiff's treating general practitioner. 681. Mr Schipp sent a copy of Dr Guttmann's report to Mr Kirby under cover of a letter dated 15 December 2001: Exhibit "1" page 354. That letter provided Mr Kirby with no background information or factual context whatsoever, and simply asked Mr Kirby to advise on whether the report should be served on the defendant. Unsurprisingly, Mr Kirby's letter of advice in reply, which was dated 18 January 2002, and which is to be found at Exhibit "1" page 356, advised against service of the report in the following terms : " I don't think that the report could be served as he [Dr Guttmann] obviously attributes your client's problems with his left shoulder to an old injury". 682. Dr Guttmann's report stated that he was uncertain as to whether the subluxation injury was the result of a recent or old injury, probably the latter. Dr Guttmann associated the subluxation with pain in the region and commented that bone density around the area indicated previous trauma. Clearly, the issue warranted some level of inquiry of the plaintiff. It is plain that Mr Schipp made no attempt to investigate the circumstances to consider whether this material aggravation injury could be linked to the original injury, as it clearly was. 683. In these circumstances it was unsurprising that Mr Kirby was misled into thinking that this report was unhelpful. It was naïve of Mr Schipp to think that this report would not find its way into the hands of the defendant, as it ultimately did, at least in these proceedings, because a copy of it had been sent to the general practitioner, and those types of records are, as a matter of course, subpoenaed by defendants in personal injury litigation. 684. It is surprising that Mr Kirby was not given the information on the fall, as the plaintiff had written to Mr Schipp on 14 November 2001 to inform him of it and its effect on him when he told Mr Schipp of his depression "setting in" : Exhibit "1" p 351. 685. Instead of simply sending Dr Guttmann's report to counsel for consideration in a contextual vacuum, a prudent solicitor acting reasonably in the interests of his client ought to have paused, reflected on the significance of the report in conjunction with the original knee injury, the relationship between that event and the subsequent fall due to knee instability from the original injury, and sought further instructions from the client, and further documentation by evidence, including clarification of the medical evidence, as he had done on 28 May 2001 in the case of an earlier ambiguous comment made by Dr Ostinga concerning the aetiology of the loose fragment of cartilage that had been surgically removed from the plaintiff's right knee : Exhibit "1" p 66. 686. Such evidence was readily available. It was readily obtainable from the plaintiff himself. Proof of this fact comes from the report of Dr Stephen Kemp dated 10 July 2002. Dr Pacey referred the plaintiff to Dr Kemp. Dr Kemp's report, which is copied at Exhibit "1" pp 113-114, records a summary of the plaintiff's history in the following terms : "In October of last year he tells me that his right knee gave way whilst walking on uneven ground. He fell again and developed recurrent pain in the left shoulder and an aggravation of his neck condition. Subsequently an acromioclavicular joint dislocation was diagnosed. He was referred for physiotherapy and received a bit later on a depot steroid injection into the acromioclavicular joint which resulted in only mild improvement in his symptoms. At the present time Howard complains of ongoing pain at rest over the anterior and superior aspects of the left shoulder. He reports pain with lifting even with the elbow at the side and since the depot steroid injection has lost much of his sharp pain. He can't rely on that side and is waking regularly at least five times. Overall he feels about 50% of his trouble is coming from the shoulder and 50% from the neck." 687. Dr Kemp recognized the problem to be "a very difficult one". He saw no short-term solution and was reluctant to offer surgery at that stage. His impression was that although the pain was reasonably well localised and he ought to be able to help the plaintiff, the profuse irritability of the area and the progress over the last couple of years placed the plaintiff in a group of patients where caution was necessary. His reference to progress over the last couple of years was an obvious reference to the course of the plaintiff's left shoulder and neck problems from the original fall in the subject accident. 688. Clearly, the foregoing matters were not considered by Mr Schipp or particularised. Clearly, they should have been. The fact that they were not was the failure of Mr Schipp to consider the problem, investigate it and decide how it should be dealt with in the context of the litigation. 689. In these circumstances I consider that it would be manifestly unfair to the plaintiff, and unjustly advantageous to the defendants in these proceedings, to assess damages on the basis of the inadequate particularisation of the original claim. In assessing damages, I propose to take the above matters into account, including reasonable inferences available from such matters. 690. Accordingly, notwithstanding the inadequate state of the filed particulars of damages claim at the time of the arbitration hearing, I consider that when notionally assessing damages in the principal proceedings, I should have regard to the following: (a) When the plaintiff fell on 8 November 2000, he suffered a twisting injury to his right knee. This caused pain, swelling and difficulty with mobility; (b) When the plaintiff fell he also struck the left side of his head on a rock on the ground, this caused a laceration to the head and he also injured his neck. As a result he suffered headaches; (c) After consulting his general practitioner and undergoing investigations, he underwent orthopaedic surgery for removal of a loose fragment of cartilage from his right knee, such fragment having been dislodged from its position by the trauma of the fall. Though the evidence suggests that the plaintiff had a pre-existing condition of his right knee involving degeneration of the cartilage, it was asymptomatic but had been rendered symptomatic by the trauma. The defendants have failed to demonstrate that the pre-existing problems would have caused difficulty and the need for surgery at some future time in any event : Watts v Rake [1960] HCA 58; (1960) 108 CLR 158; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164; (d) In the period between the time of his injury on 8 November 2000 and 18 October 2001, the plaintiff: (i) continued to have problems with his right knee which on occasions gave way from under him causing him to fall; (ii) continued to have headaches and neck pain for which he received physiotherapy from time to time, the neck pain being due to aggravation of underlying degenerative changes at multiple levels in the cervical spine which had previously been asymptomatic; (iii) had problems with his injured left shoulder which gradually lessened in intensity; (iv) was unable to undertake any work involving lifting or carrying or driving or sitting for prolonged periods; (v) was unable to return to his work as a spinologist; (e) On 18 October 2001, as a consequence of the plaintiff's right knee giving way from under him, while walking on uneven ground, he fell and either dislocated or subluxed his left acromioclavicular joint, also involving a bony avulsion with widening of that joint or aggravated an earlier injury of that kind. The effect of this further injury on the plaintiff has been: (i) aggravation of the earlier left shoulder injury which had settled down before this fall, the effect of the aggravation being to cause ongoing pain and discomfort in the left shoulder, including causing difficulty sleeping with frequent waking at night; (ii) material aggravation of the effects of the underlying neck injury occasioned by the fall of 8 November 2000; (iii) a continuing inability to pursue significant work involving physical strength and dexterity in a range of manual occupations, including the work of a spinologist, which required unrestricted use of the shoulders; (iv) he has suffered anxiety and depression, as particularised by Mr Schipp in a letter to the defendant dated 19 October 2001 : Exhibit "1" p 343, para 4. (f) Published rates of average weekly earnings as a guide to the assessment of the claim for past and future loss of earning capacity. 691. Whilst it seems reasonable to assume that the foregoing matters would have reasonably given rise to a claim for past and future domestic assistance on account of the nature of the plaintiff's physical disabilities, notwithstanding that view, absent any evidence of such matters I will not speculate as to how the plaintiff's disabilities may have given rise to such potential claims, noting that there are thresholds that are required to be met before such damages can be awarded. The evidence does not allow a reasoned analysis of such issues. 692. In the principal proceedings the component of the plaintiff's claim for damages for future out-of-pocket expenses were claimed over the remainder of his lifetime. Accordingly, although it is a relatively small issue, it is necessary to consider what the plaintiff's probable life span would have been in 2002, when the prevailing practice was to use the standard life tables for assessment of future losses estimated over a lifetime, because the prospective tables had not been authoritatively sanctioned : Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15; (2007) 234 ALR 131. 693. In 2002, the 1999 edition of the life tables would have been current and would have been the source relied upon. This would have revealed a 45 year old male to have an average life span of 38.23 years, which I will round down to 38 years for the purposes of calculation : Australian Bureau of Statistics – Deaths, Australia 1997-1999. The 5 per cent actuarial multiplier for projection of monetary losses over 38 years is 902.0. Notional assessment of damages in the principal proceedings 694. A total of 8 claimed heads of damage would have required assessment in the principal proceedings. I have set out my assessment of these claims in the paragraphs that follow, incorporating the respective submissions of the parties, together with my overall assessment of what damages the court would most likely have awarded the plaintiff in those proceedings, in an assessment in 2003. Non-economic loss 695. At the time of the plaintiff's injury which gave rise to the principal proceedings, the maximum amount awardable for non-economic loss pursuant to s 151G of the Workers' Compensation Act 1987 ["WC Act"] was $246,900. The parties made disparate submissions as to the appropriate award of damages for non-economic loss. 696. On behalf of the plaintiff, it was submitted that an appropriate award of damages for non-economic loss at the time of the notional trial would have been for a sum representing 30 per cent of a most extreme case ["MEC"] according to the framework of s 151G of the WC Act. This is the equivalent of $74,070. 697. On behalf of the defendant, it was submitted that the sum to be assessed for non-economic loss was in the range 20 per cent to 25 per cent of a MEC. This is the equivalent of $49,380 and $61,725 for these respective percentage assessments. It appears this range was adopted from the advice which Mr Arnold gave his insurer client on 25 June 2002 : Exhibit "1" p 453. 698. In order to assess these submissions, and for me to reach my own concluded view of what was likely to have been the terms of a monetary assessment by the court in 2003, it is necessary to have regard to the nature of the plaintiff's initial injuries, the treatment received and the course these problems took, including material aggravations, up until the time of the notional assessment in 2003. 699. The evidence for these matters must predate the notional assessment. Events occurring afterwards, whether these had a positive or negative impact on the plaintiff, would have been accounted for in the notional assessment by operation of the discount to be applied for potential vicissitudes : Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485; Bresatz v Przibilla [1962] HCA 54; (1962) 108 CLR 541. 700. In summary, the plaintiff suffered a severe and painful twisting injury to his right knee when he fell. He also injured his left shoulder, his neck and suffered a related laceration to the left side of the head, with associated headaches. After undergoing surgical removal of a loose fragment of cartilage in the right knee, which most likely became dislodged as a result of the fall, probably when the plaintiff felt the snapping sensation in the knee, the plaintiff was left with an instability of the knee which caused him to suffer falls from time to time. In addition, he continued to suffer from neck pain and headaches. He also had continuing left shoulder pain which was settling gradually. 701. I must also have regard to the fact that in October 2001, as a result of one such fall, the plaintiff significantly aggravated his neck and left shoulder condition. The result of this has left the plaintiff with significant restrictions in his left shoulder and in the use of his left arm. This prevents him from doing the physical work involved in the practise of spinology, as well as a wide range of other occupations requiring physical strength and dexterity, and the ability to sit for prolonged periods. He has ongoing neck, left shoulder and right knee problems. In 2002/2003 these problems had not abated despite physiotherapy, cortisone injections to the left shoulder, and exercises aimed at alleviating the problems. 702. At the age of 45 in 2002, and therefore I also infer in 2003, despite conservative treatment, the plaintiff was left with significant physical restrictions that continued to adversely affect him with regard to ongoing pain, suffering, loss of enjoyment and loss of the amenity of his life, including the effects of resultant anxiety and depression. 703. The plaintiff's experience of depression, which was noted by him in his letter dated 14 November 2001 addressed to Mr Schipp and received by him 4 days later, appears not to have been acted upon or investigated for the purpose of obtaining and presenting evidence in the proceedings. In these circumstances I consider that the onset of depression in the plaintiff should also be included in a consideration of his entitlement to damages for non-economic loss : Exhibit "1" p 351. In this regard, the plaintiff should not be penalised in these proceedings for such an omission in the principal proceedings. 704. I have already undertaken a detailed review of the medical evidence with regard to these matters at paragraphs [516] to [671] of my judgment. 705. In the light of these matters, I consider that the submissions made by the parties concerning the appropriate award for a percentage of a MEC have had insufficient regard to the full extent of the plaintiff's situation, particularly the effects of the October 2001 aggravation. I consider that aggravation to have had a significantly material and adverse effect on the plaintiff's condition. I consider that in 2003, properly ventilated in the evidence, the court would have awarded significantly more damages for non-economic loss than the respective levels contended for by either party in these proceedings. In coming to this view, I have considered the range of MEC figures identified by Mr Kirby in his notes of 1 August 2001. In my view, those figures should not influence my assessment because Mr Kirby was briefed with insufficient information to form a concluded view of the aggravating effects on the plaintiff, of the fall he suffered in October 2001. 706. In my view, these considerations indicate that in 2003, the court would most probably have assessed the plaintiff's entitlement to damages for non-economic loss in the range 35 per cent to 40 per cent of a MEC. In this context, it has to be recognised that a range of potential trial judges may have approached the matter of what constituted the assessment of a sound discretionary judgment on this issue from slightly differing perspectives. It is for this reason that I make my assessment of the likely award for non-economic loss at a trial in this court in 2003 towards the middle of the range that I have identified, namely 37 per cent. 707. Accordingly, This indicates that the appropriate award for non-economic loss that would probably have been awarded to the plaintiff in the principal proceedings ought to have been in the amount of $91,353. Past economic loss 708. On behalf of the plaintiff, it was submitted that an appropriate award for past loss of earning capacity in this case would have been for a sum in the range between $91,949 net to $120,000 net. 709. That submission was grounded upon a number of propositions. First, uninjured, if the plaintiff had been unsuccessful in his spinology practice, he had the option of working on his brother's farm or in similar employment from which he could have derived income at the rate of $1210 per week gross. Secondly, as a newly qualified spinologist, he had the potential to derive gross earnings of at least between $40,000 and $50,000 per annum on what appeared to be low overhead expenses. Thirdly, as a qualified spinologist, as was explained by his brother, Mr Anthony Tremain, the plaintiff had a potential to earn an income of $100,000 in his first full year as a spinologist, with the potential to later earn up to $250,000 per year, if not more. Fourthly, simply proceeding on the rates paid to the plaintiff whilst in the employ of his brother's company, M & R Tremain Pty Ltd, it would indicate that the plaintiff would have generated a net income of the order of $91,949 in the 2 years between when he was injured and the time of the notional arbitration hearing. 710. On behalf of the plaintiff, it was submitted that on the balance of probabilities, in 2002, or 2003, the court would have taken the view that if he had not been injured, the plaintiff would probably have returned to his work in building up his relatively new practice in spinology within a month of the time of his injury, noting that he only worked on the farm for a relatively short time in order to help his brother out when he urgently needed some additional labour at harvest time, with the potential to extend this as there was work to be had and done on the farm. On this assumption, it was submitted that uninjured, the plaintiff would have only lost 1 month of income whilst in the employ of M & R Tremain Pty Ltd, in the amount of $4840, and 23 months of lost income as a spinologist in the amount of $100,000 per annum, or $191,666.67 in total, indicating a gross loss of income of $196,506.67. This submitted result was the equivalent of $129,338 net. 711. The plaintiff submitted that the sum of $129,338.67 should be rounded down to $120,000 net, to reflect the possibility that the farm work would have been phased out and the spinology practice income would have phased in over a slightly longer time than one month. 712. The plaintiff submitted that on either of these scenarios, assuming an arbitration hearing on 1 August 2002 did not result in the conclusion of the principal proceedings in 2002, at a later rehearing, the court would have taken either of the two submitted approaches in assessing the plaintiff's entitlement to an award of damages for past economic loss in the principal proceedings. On behalf of the plaintiff, it was submitted this should have resulted in an award in favour of the plaintiff of either $91,949.30 net or $120,000 net. 713. I will return to an analysis of the plaintiff's submissions after identifying and analysing the submissions made on behalf of the defendants. 714. On behalf of the defendants in these proceedings, it was submitted that the appropriate range of damages for past economic loss was likely to be in the range that either no damages at all would be awarded for past economic loss, based on the assumption that the plaintiff would not have met the threshold for assessment of entitlement to such damages, as was required by s 66 of the WC Act, or alternatively, an assessment and award of a rounded sum of $25,000 on account of this head of damage. 715. In my view, the nature and extent of his injuries and his resultant disabilities requires a rejection of the submission based on section 66 of the WC Act. Further, in my view, the sum of $25,000 that was conceded by the defendants was arrived at on a selective and incomplete analysis of the applicable factors relevant to an assessment of damages for past economic loss at a trial in this court in 2002 or in 2003. 716. The defendants sought to justify the submitted amount of $25,000 by conceding an economic loss of $15,000 from the time of the plaintiff's injury until Mr Mathew Tremain's company ceased trading in May 2002, and then allowing an additional amount of $5000 per year for each of the two following years, until the approximate time of the notional arbitration hearing on 1 August 2002. 717. In my view, the approach taken by the defendants to the assessment of the claim for past economic loss is artificial, and unrealistic in that it pays no adequate regard for the plaintiff's loss of his pre-injury capacity to work which, absent his injury, was unrestricted. In contrast, since his injury, on the plaintiff's evidence which I accept, and which is supported by the evidence of Dr Kemp and Professor Ghabrial, the plaintiff has suffered a considerable impairment in his earning capacity. 718. In this regard, on 14 January 2002, Professor Ghabrial stated that the plaintiff was unfit for activities involving heavy lifting, excessive bending and twisting on a permanent basis, as well as activities involving excessive use of the upper limbs above shoulder level. He has been assessed to have permanent impediments of his neck, upper limbs, and the lower right limb. The percentages of impairment are not relevant to an assessment of loss of earnings but, of themselves are significant, being respectively, 40 per cent for the neck, 10 per cent for the right upper limb, 15 per cent for the left upper limb, 5 per cent for the left lower limb. Further, the 10 July 2002 report of Dr Kemp is not suggestive of there being a significant residual earning capacity. 719. In my view, the approach taken by the defendants to this issue wrongly assumes that the plaintiff's earning capacity if uninjured, would have taken a dramatic downturn after Mr Mathew Tremain's company ceased to trade in May 2002. In making that assumption, the submission ignores the realities of the labour market, the portability within the labour market of the plaintiff's capacity to earn, and the accepted principles of assessment of loss of capacity in such circumstances where, uninjured, earning capacity was unrestricted and had a value. 720. In contrast, in his injured state, as confirmed by the opinion of Professor Ghabrial, the plaintiff's earning capacity has been severely restricted. In this regard I have accepted the opinion of Professor Ghabrial. 721. In my view, this finding is also supported by the attitude taken by the defendant's insurer in the principal proceedings. Although it was in possession of reports that arguably did not support the plaintiff's claim for loss of earning capacity being referable to the subject accident, the insurer took a pragmatic view of the likelihood of the opinions within those reports being accepted and continued to pay the plaintiff his entitlements to workers' compensation benefits. I infer from those circumstances that if the plaintiff did in fact continue to have an inability to work up until the time of the notional trial, and that such inability amounted to a loss of earning capacity that was productive financial loss requiring assessment in damages. 722. I therefore reject the submission made on behalf of the defendants on this issue. In reaching this conclusion, I am confirmed in my view, having regard to the manner in which the plaintiff's claim for past loss of earning capacity was particularised by the defendant in the principal proceedings. In this regard, I consider that the plaintiff's claim for an inability to work after his injury was correctly framed in the particulars, subject to the omission to claim loss of earning capacity as a spinologist. Remarkably, the position taken by the defendants in these proceedings is somewhat discordant with the approach formerly taken by them on the plaintiff's behalf. 723. Having determined that the approach to the assessment of this head of damage as was submitted by the defendants in these proceedings is of no assistance on the issue, I return to the analysis of the submissions made on behalf of the plaintiff. 724. A notional assessment fixed in time as at 31 March 2003 to include award of damages for past loss of earnings is a difficult exercise in this case because at that time the plaintiff had not had sufficient time to settle down into the practise of his new profession as a spinologist. Accordingly, I consider it would be unfair to the plaintiff to assess this head of damage on the basis only of his prior work history, without regard to his potential to earn very considerable sums as a spinologist. Also, subject to a qualification to which I shall refer, I consider it could be unfair to the defendants to have to bear the burden of an assessment of what might be very considerable damages for the plaintiff's loss of potentially considerable earnings as a spinologist. 725. At the time of the scheduled arbitration hearing, and for a significant period beforehand, the defendants were aware of the plaintiff's profession of spinology : Exhibit "1" p 431. Notwithstanding this fact, a claim for loss of earning capacity based on the earnings the plaintiff could have derived from the practise of spinology had not been particularised on the plaintiff's behalf by the defendants. I accept that before the scheduled arbitration hearing, the plaintiff told the defendants about his spinology practise, and I find that the defendants ought to have explored this with the plaintiff, and should have particularised the plaintiff's inability to pursue that line of work in the principal proceedings. 726. In my view, assuming that an arbitration hearing would not have satisfied the monetary expectations of the plaintiff, and that a rehearing would have occurred before the court, which I have found would have been the case, a duly diligent preparation for a trial by counsel and solicitors, with due time being spent in conference preparing the plaintiff to give evidence, would have revealed the potential claim for loss of income from the practise of spinology. In my view, assuming a standard of reasonable practice on the part of the plaintiff's solicitor, which I must do for these purposes, this would have led the present defendants to marshal the evidence of Mr Anthony Tremain, and other supporting evidence that would have demonstrated a claim along the lines of the evidence given by Mr Anthony Tremain in these proceedings, revealing a substantial potential claim for loss of earning capacity. 727. A difficulty with assessing the plaintiff's damages on the basis of loss of earnings from the practise of spinology, was not only that he had been in practise for a relatively short time, but significantly, such a claim had not been particularised in the particulars of claim filed in court, and had not been notified to the defendant in the principal proceedings by correspondence, as it should have been. 728. In my view, such difficulty would and should not stand in the way of an assessment in these proceedings. I consider this to be so because at the very least, in the principal proceedings, this claim would have been revealed during the necessary preparatory conferences the plaintiff would have had with his solicitors and with his counsel. 729. Once such a claim had been revealed, the obligation of the plaintiff's solicitor was to seek a timely amendment to the particulars to reflect such a claim. A timely amendment to the particulars would not have required leave. It would simply have required correspondence to the defendant enclosing an amended document to incorporate and raise such a claim. 730. I do not ignore the reality that even if an application for amendment had been left to the last moment, the court would not have shut out such a claim on an application of the principles that applied in 2003 concerning applications to amend the particulars of claim : Leotta v Public Transport Commission of NSW (1976) 9 ALR 437; State of Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1996-1997) 189 CLR 146. In my view, as the law was applied in 2003, assuming the worst, and that an application to amend was left to be made at the eleventh hour, the court would nevertheless have granted such a request, in order to ensure the plaintiff's claim was justly determined. 731. In my view, the contrary position should not prevail in these proceedings, as to do so would have the effect of enabling the tortfeasors to benefit by their wrongdoing, a result that would be contrary to accepted notions of justice and fairness between the parties. This in my view counterbalances and cancels out any potential to the defendants which I earlier identified to be a qualification to the plaintiff's entitlement to rely on the earnings he might have derived in the practice of spinology. 732. On the foregoing analysis, in determining the necessary approach to the assessment of damages, it is necessary to apply the principles identified in Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 using a forward looking approach in retrospectively determining what the probable circumstances would have been, as was explained by Hayne J in Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442 at [105]. 733. On that approach, I consider that but for the plaintiff's injury, there was a very high probability that the plaintiff would have helped out his brother Mr Mathew Tremain on the farm for a short period of about a month, and would then have gone back to developing his spinology practice with a justified measure of confidence that in the first year, he stood to gain considerable income. In this regard, I accept the evidence of the plaintiff and Mr Anthony Tremain. 734. The argument made by the defendants against this proposition is that an examination of the plaintiff's financial returns do not reveal significant income for several years before his injury. In my view this is not an impediment to an award of damages for past loss of earnings where the plaintiff was in well-paid employment at the time he was injured and had a capacity to pursue significant earnings if he had remained in an uninjured state. 735. The argument made by the defendants pays no regard to the fact that the plaintiff spent a year out of the workforce to study and obtain certification as a spinologist. This occurred at around a time of crisis in his life which led him to change career paths. In those circumstances I do not regard the plaintiff's pre-injury income-tax returns to be a reliable guide to the assessment of either past or future loss of earning capacity. 736. The defendants raised a further argument that in the months before his injury, at a time when he was working as a spinologist, the plaintiff had not declared earnings as a spinologist. At the trial of these proceedings the plaintiff could not recall the amount that he earned in that period as a spinologist. This is not at all surprising. The solicitors appear not to have pursued the usual enquiries that would have been likely to have unearthed the details of such earnings whilst the information was available. A lot has happened to the plaintiff in the meantime. He has moved several times. He has had a relationship breakdown. He has been preoccupied with grievances associated with his compensation claim that gave rise to these proceedings, as has been documented by Dr Smith, his general practitioner. I do not consider his ability to recall his spinology earnings 9 years ago to be a legitimate matter for criticism by the defendants in these proceedings, particularly where the evidence in question could have been sought and preserved at an early and relevant stage had the defendants properly discharge their retainer to act for the plaintiff. 737. With regard to any past earnings as a spinologist, I must also have regard to the possibility that in the start of a new business, conducted in conjunction with other practitioners, where there were set up expenses and running costs, the plaintiff may not have taken drawings from the business at that early stage. In any event, this is not an issue on which I need to make a conclusive finding. I find that a more appropriate yardstick by which to assess the potential earnings of a spinologist, is the unchallenged evidence of Mr Anthony Tremain. 738. In coming to that view, that is not to say that I should accept without discount the potential earnings outlined by Mr Anthony Tremain as being applicable to the plaintiff. As with any new business venture which involves the establishment of a client base, there are risks of failure for multiple reasons that may be unconnected with skill ability. In this regard, a reasonable and alternative yardstick for an assessment of loss of earning capacity would at the least have been that of average weekly earnings. 739. Whichever yardstick is used, in my view, an assessment must be made for the plaintiff's loss of earnings between the time of his injury on 8 November 2000 and the time of commencement of the notional trial of 31 March 2003. In respect of that period, I find that the plaintiff has not worked because he has been unable to do so, and this has been as a result of the subject injury. There is no question of any failure to mitigate, as is evident from the medical evidence, the plaintiff's attendance at rehabilitation, and the continued payments of workers' compensation until the time of settlement. 740. Having considered the foregoing matters I am persuaded that I should accept as fair and reasonable the first part of the plaintiff's submission on past economic loss, namely for the first 12 months. This results in a calculation of gross loss of income of $4840 for the first month and eleven-twelfths of $100,000 for the ensuing 11 months, namely $91,666 gross. 741. In my view, this would represent a fair measure of the plaintiff's claim for past loss of earning capacity between the time of his injury on 8 November 2000 until 8 November 2001. However, I consider that the component for the 11 months of loss of earnings at the rate of $100,000 per annum in the first year following the injury should be discounted by 25 per cent to reflect vicissitudes that would have applied at that time. Accordingly, the sum of $91,666, when reduced by 20 per cent, reveals an amount of $73,332. When the sum of $4840 is added to this figure, this reveals a total loss of earnings in the amount of $78,172 gross, which is the equivalent of an average of $1503 per week gross over this 12 month period. 742. After allowing for the applicable rates of income-tax and the Medicare levy, these amounts are the equivalent of $1016.73 per week net or $52,870.34 for the first 12 months. 743. The remaining period between 9 November 2001 and the commencement of a notional trial on 31 March 2003 is a period of 72.57 weeks. 744. Over the ensuing period until the commencement of the notional trial, I consider that it was highly likely that the plaintiff would have been successful as a spinologist in private practice because he was one of the better ones according to his brother who trained him, and whose evidence I accept. I find therefore that the plaintiff was well placed to develop a good spinology practice and to position himself to earn income of up to $250,000 per annum. 745. It would probably be unrealistic to assume that the plaintiff would immediately, after a year of income of the order of $100,000 gross, move up to an income of $250,000 gross. However I consider it would have been reasonable, on the evidence, for the court assessing damages in the principal proceedings in 2003, on the evidence of Mr Anthony Tremain, to find that an income of $100,000 per annum gross would have continued in the following year. On that approach a discount would be required to allow for uncertainties. One such uncertainty would have been whether the plaintiff would have found practice as a spinologist to be congenial, as he did have some doubts at the time he went to work for his brother Mr Mathew Tremain. 746. A discount would also be required to reflect the possibility that despite predictions, the plaintiff may not have been as successful in a relatively new spinology practice, and to also account for the imponderables that would have applied to the situation the plaintiff would have been in at that time. Although the calculation is not a perfect one, partly because of the actions or inactions of the defendants, and partly because of the inherent uncertainties of the plaintiff's probable earnings in the years immediately following his injury, I consider that a 25 per cent discount should be applied to reflect these matters. I consider that in 2003, this would have been the appropriate approach that would have been taken by the court in assessing the plaintiff's damages for that second part of the claimed period of past of loss of earning capacity. 747. Accordingly, I have assessed the second period of loss at the rate of $75,000 per annum gross, which is the equivalent of $1442 per week gross over 72.57 weeks. The net weekly rate for this period, after applicable tax and Medicare levy offsets, is $985.48 per week. Accordingly, the loss for the second period is $71,516.28 net. 748. It is useful to make a comparison with the rate for average weekly earnings. In February 2003 the AWE rate for total male earnings in Australia was $1009 per week gross. This is the equivalent of $752.71 per week net. I consider that the plaintiff was well placed to earn well in excess of the average rates, as is evident from what he could earn doing farm work, and the potential earnings of spinologists. 749. The combined assessed loss for the two periods, namely $52,870.34 and $71,516.28 yields a total of $124,386.62. I therefore notionally assess the plaintiff's past loss of earning capacity to 31 March 2003 in the principal proceedings in the amount of $124,386. 750. In the context of an assessment of past economic loss, the weekly payments received by the plaintiff from his employer's workers' compensation insurer, namely $38,200, would have operated as part of the defendant's defence to the principal proceedings, and therefore a judgment in the plaintiff's favour would have necessarily excluded this amount. 751. After the offset allowance is made for the amount of weekly compensation payments received by the plaintiff, the difference reveals an amount of $86,186. In my view this amount fairly represents the probable amount the plaintiff would have most likely have received as a component of an award of damages in his favour for past loss of earnings in the principal proceedings after the offset of payments of workers' compensation payments. Fox v Wood 752. The amount the plaintiff had paid by way of tax on his workers' compensation payments was identified in the amount of $7,043.40. I find that the plaintiff would have been entitled to have had this sum included in a damages award in his favour in the principal proceedings. Future loss of earning capacity 753. The plaintiff submitted that at a notional trial in 2003 he would have been likely to have succeeded in obtaining an award of damages in his favour for future loss of earning capacity in the range $198,254 to $283,200, after applying the required discount of 15 per cent on account of potential adverse vicissitudes. 754. That submission was based upon the proposition that he is entitled to claim a loss of at least $350 per week net, or more likely, the sum of $500 per week net for the remainder of his working life. 755. In contrast, the defendant submitted that it was unlikely that the plaintiff would have received any damages for loss of earning capacity, or alternatively, any such award ought to be assessed at a sum in the order of $20,000. 756. Whilst the submissions made by the respective parties are understandable in the context in which they were made, I consider that there are difficulties inherent in both approaches. 757. I consider the defendant's general approach to be overly simplistic and not reflective of the medical evidence I have accepted, particularly the opinion of Professor Ghabrial that I have already summarised and accepted. 758. I consider the plaintiff's submitted approach to be too arbitrary in the case of a person who I consider should be assessed as being unable to perform significant work over the remainder of his working life, including an inability to work in the profession of spinology for which he was trained, by reason of impairment of his left shoulder. 759. Several approaches are available as options for the assessment of future loss of earning capacity. These are the award of a buffer, or the projection of a selected weekly sum over the remainder of the plaintiff's probable working life if he had remained uninjured. On the latter approach, this would be either with or without a discount to allow for a residual earning capacity. In the paragraphs that follow, I will consider these options. 760. In some cases it is appropriate to identify a fair buffer along the lines discussed and approved in State of NSW v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536, per Heydon JA at [66] – [87]; pp 552-559, and the cases that have followed and approved that course. In my view, a buffer would be too simplistic an approach in this case given the specific evidence of the plaintiff that he is unable to work as a spinologist because he is unable to carry out the physical tasks due to his impaired left shoulder. A buffer is also inappropriate in a case where there is a proven inability to perform a range of commonplace activities such as those identified by Professor Ghabrial where those activities are involved in the workplace. I consider that a buffer is also inappropriate where there is an available method for estimating the loss. In my view a buffer applies more to cases where there is a paucity of evidence of probable income or where the pattern of loss of earnings is necessarily imprecise. Accordingly, I do not propose to award a buffer for future loss of earning capacity. 761. Although the evidence as to the plaintiff's earnings and his future potential earnings was in an imprecise state, the fact remains that but for his injury which is the subject of this claim, he was fit for a wide range of physical and non-physical work categories and tasks which he could have sought out and probably obtained on the open labour market. 762. In my view, it is clear that as a result of the injury in question, the plaintiff has been left with significant impairment for unrestricted competition on the open labour market. For example, his shoulder impairment precludes him from pursuing employment within this chosen vocation as a spinologist. The evidence of his brother Mr Anthony Tremain indicated that the practise of spinology is a potentially lucrative endeavour. The plaintiff can no longer pursue this because of his shoulder impairment. Similarly, he can no longer pursue farm work of the kind he was carrying out at the time of his injury, which gave rise to the principal proceedings. These are just two examples of the plaintiff's impaired earning capacity. 763. At the trial, the plaintiff was aged 45 years, and therefore had a theoretical working life of a remaining 20 years. There was no evidence that suggested a foreshortening of the plaintiff's remaining working life. The evidence disclosed that he had in the past applied himself in a variety of occupations. It was probable that uninjured, he would have retained that unrestricted capacity. In these circumstances, I consider that in the principal proceedings, the probable approach of the court would have been to award the plaintiff a weekly sum over the remainder of his working life of 20 years to reflect the significant impairment to his earning capacity whilst at the same time, in fairness to the defendant, allow some offset for a possibly emergent residual capacity. 764. Given that efforts at rehabilitation have been unsuccessful, and given the nature of the plaintiff's pain which wakes him at night, I consider that the offset should be relatively modest. 765. I consider that income goals for the plaintiff in the vicinity of $250,000 per annum or more are too high for the purposes of assessment of damages where these were uncertainties as to whether such income levels could be achieved by the plaintiff. However, I consider that the weekly sum awarded in respect of the second period of the claim for past loss of earnings, namely $948 per week net, is a reasonable yardstick to consider, before allowing for an offset for an assumed, but as yet unidentified, residual earning capacity that is yet to emerge. Doing the best I can to be fair to the plaintiff and at the same time not unfair to the defendants, I assess the plaintiff's loss of earning capacity at $950 per week net less $250 per week for an assumed residual earning capacity, noting that these figures are averages over the remaining working life. 766. The result is a loss of $700 per week net for projection over 20 years (x 666.4) which yields a projected sum of $466,480. After applying a 15 per cent discount for potential adverse vicissitudes, this results in a projected calculation of $396,508. 767. I have tested the sum of $700 per week against the yardstick of average weekly earnings of $752 per week net. Given that I consider the plaintiff to have had the potential for higher than average weekly earnings, I consider this comparison validates the appropriateness of the figure I have selected for projection. 768. Accordingly, I consider that the plaintiff would most likely have been the recipient of an award of damages in his favour for future loss of earning capacity in the sum of $396,508. Past loss of superannuation 769. 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 $124,386 is $13,682. I find that the plaintiff would have been entitled for this sum to be included in a damages award in his favour in the principal proceedings in respect of this head of damage. Future loss of superannuation 770. 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 $396,508 yields an amount of $43,615. I find that the plaintiff would have been entitled for this sum to be included in a damages award in his favour in the principal proceedings on account of this head of damage. Future out-of-pocket expenses 771. In the principal proceedings, the plaintiff made a particularised claim for future-out of-pocket expenses in the amount of $11,150. In these proceedings, the plaintiff submitted that sum would probably have been allowed and included on an assessment of his future entitlement to damages. 772. In these proceedings, the defendants have conceded a buffer of $10,000 on account of future out-of-pocket expenses. The difference in these two positions is relatively small and neither of them seems on the face of the evidence to be excessive. The sum claimed by the plaintiff is the equivalent of $12.36 per week over his projected life span of 38 years. I consider that on the evidence, the sum of $11,150 was reasonably claimed by the plaintiff and given it was particularised precisely by the defendants, I infer that the defendants, who were acting for the plaintiff, could most probably have proven this item of claim. I consider that a lump sum of $11,500 to be a fair allowance to cover the lifetime cost of medical consultations and treatment, physiotherapy and pain killing medications. 773. Accordingly, I consider that the sum of $11,150 would most probably have been included in an award of damages in favour of the plaintiff in the principal proceedings. Past out-of-pocket expenses 774. The plaintiff's out-of-pocket expenses were in the amount of $14,800 and were paid by the workers' compensation insurer. I do not propose to include this sum in the notional damages assessment because it is, in effect, a book entry. That is, from a practical point of view, this amount would have been part of the defendant's defence and an ultimate judgment in the plaintiff's favour in the principal proceedings would have necessarily excluded this amount. Summary of probable damages assessment 775. After allowing for the offsets that would have been claimed by way of defence as payments made to or on behalf of the plaintiff, my adjusted assessment of the plaintiff's probable entitlement to an award of damages in the principal proceedings is summarised as follows: (a) Non-economic loss $91,353 (b) Past loss of earnings $86,186 (c) Fox v Wood $7,043.40 (d) Future loss of earning capacity $396,508 (e) Past superannuation losses $13,682 (f) Future superannuation losses $43,615 (g) Future out-of-pocket expenses $11,500 (h) Past out-of-pocket expenses $Nil Total $649,887.40 776. Having identified the probable amount of the plaintiff's net entitlement from an award of damages in his favour in the amount of $649,887 if the principal proceedings had been taken to a trial, it becomes necessary to address the manner in which quantum ought to be assessed in the present proceedings, as some adjustments are required. Issue 10 – Quantum of damages in these proceedings 777. A consideration of Issue 10 involves an evaluation of the analytical steps that must be taken into account in the adjustment of the notional award in an assessment of damages in these proceedings. 778. The starting point for the assessment is the notional award I have identified in the amount of $649,887.40 as at 30 November 2003. 779. In my view, there are 4 sequential steps of analysis that must be observed before arriving at a final assessment of damages in the present proceedings. 780. Before addressing those steps, it is necessary to deal with a specific submission made by the defendants on the adjustment of any award in favour of the plaintiff. 781. The defendants have submitted that in the event that the plaintiff succeeds in this case, there must nevertheless be a discount of at least 30 per cent for the loss of chance in accordance with general principle : Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351. There is no question that there should be some discounting of the plaintiff's entitlement to damages in accordance with this principle. The issue is the extent of an appropriate percentage of such a discount. 782. It was submitted that there were doubts about the plaintiff's case meeting the required thresholds, as well as there been a real chance that he would have been willing to settle the matter anyway for a lesser amount than the potential value of the case. It was submitted that the plaintiff may have failed to establish his case under ss 151G and 151H of the WC Act, or may have failed to establish a substantial loss of past or future earning capacity, or may have accepted a lower offer of settlement in net terms with full knowledge of the correct position. It was submitted that a deduction of at least 30 per cent should be made on account of these factors. Accordingly, the elements of the submission need to be considered. 783. Recognizing that authority requires the making of a deduction for chance, the defendants' submission requires consideration. 784. I have found it would have been unlikely that the plaintiff would have failed to meet the required thresholds. I have also found the plaintiff has suffered a substantial loss of earning capacity which has been demonstrated to have been productive of a financial loss. I have also found that the plaintiff had his sights set on a much higher figure for settlement of the principal proceedings than the amount for which the principal proceedings were in fact settled. I consider it would have been unlikely he would have settled for a lesser sum. Those circumstances therefore do not justify a discount as high as 30 per cent, as has been submitted. 785. In my view the factors relied upon by the defendants for a discounting of the plaintiff's entitlement to damages are driven by the underlying "minimalist" standard of preparation that had been undertaken by the defendants in the principal proceedings. In such circumstances, I consider that it would be unjust to make a deduction of the order of 30 per cent as submitted on behalf of the defendants because the potential value of the plaintiff's claim, as was inadequately documented by the defendants, was necessarily diminished by the effect of that poor preparation. This would have had an obvious negative influence on quantum. This should not have been the case. 786. In my view, the plaintiff ought not be penalised on that account in these proceedings for the poor standard of professional performance of his solicitors in the preparation and documentation of his case in the principal proceedings. In my view, in this case, a reduction to the extent submitted by the defendants, would, by broad analogy, to borrow a phrase from respected authority concerning the non-set-off of collateral benefits, where this would unfairly and anomalously provide a tortfeasor with a benefit by reducing the liability to pay damages, "be revolting to the ordinary man's sense of justice, and therefore contrary to public policy" : Parry v Cleaver [1969] UKHL 2 ; [1970] AC 1 per Reid LJ at p 13. 787. That statement of principle was recognized in cases where damages for gratuitous services were held not to require reduction because the services were provided by the tortfeasor, for example : Kars v Kars [1996] HCA 37; (1996) 187 CLR 354, per Dawson J at p 364. 788. I shall address what I consider to be the appropriate percentage discount in relation to the third of the 4 steps that I consider need to be followed in this case in adjusting the notional damages assessment in the principal proceedings. 789. I now turn to consider those 4 steps as follows. 790. First, the potential impact of any deduction required to be made from the assessment on account of assumed unrecoverable solicitor and client costs, has to be considered, as has been submitted by the defendants. 791. I consider that the evidence in this case indicates that no such deduction is warranted, for the reasons that follow. 792. Lump sum costing in personal injury cases is apparently employed in some quarters of the legal profession. In the context of an assumed assessment of solicitor/client costs, such lump sum costs are not readily amenable to analysis of the professional time spent on legal work. 793. In the principal proceedings, the plaintiff's maximum agreed costs of $35,000 to the point of, and including a trial, plus an additional $5000 per day plus GST for each additional day of trial, which I have assumed would cover counsel's fees, solicitor's fees, witnesses expenses, all disbursements and professional costs, seem to me to be reasonable. The costs agreement between the plaintiff and Bale Boshev clearly has the effect of relieving the defendants of the burden of having to itemise the work performed to justify their costs on a solicitor and own client basis. In these circumstances, I find it difficult if not impossible to identify a relevant unrecoverable solicitor/client component. This is a matter that requires proof, not guesswork. 794. The costs regime under the Legal Profession Act 1987 provides that only reasonable costs can be charged and recovered by legal practitioners. As I have determined that the likely costs of the plaintiff pursuing the litigation to a fully contested hearing were reasonable, in my view it follows that those costs could not be described as being unreasonable. Therefore, I consider that there would be no costs gap for the plaintiff to have to bear in respect of his own solicitor and client costs. 795. Accordingly, I do not propose to discount the plaintiff's entitlement to damages on account of an argued gap between the plaintiff's solicitor and client costs and the part/party costs that would have been likely to have been incurred in taking the principal proceedings to a judgment following a contested hearing. 796. Secondly, it is necessary for an award of damages in these proceedings to reflect what I shall describe as the "accidents of litigation". Underlying this broad general description there are a number of imponderable and at times indefinable factors that can and often do operate in litigation to necessarily make prediction of the result uncertain. Examples are the unavailability of witnesses, witnesses not coming up to proof, witnesses not being accepted, and other factors of a like nature. 797. Also included in this description is the fact that the process of litigation is dynamic and not static. As such, many variables can and do arise that can affect the outcome. The greatest variable of all is the element of persuasion and the adversarial steps the respective parties employ to either aid or hinder persuasion. Within that category are activities, such as the uncertainties in the resolution of conflicts within in the lay and expert evidence. Included in this category is the effects of observation and filming of the activities of a plaintiff, noting that the relevance of film evidence is dependent upon its context, and can at times dramatically influence the result of a personal injury case. It is not unprecedented that a defendant may seek film evidence after an unsuccessful attempt at arbitration, mediation or informal settlement attempts. 798. Thirdly, it has to be recognised that in litigation, there is always the possibility of an appeal on liability, causation and quantum issues, or a combination of such issues. The prospect of an appeal brings into play a further range of discounting factors, some of which are self-evident and others, which are more difficult to define. Although the decision of a trial judge is presumed to be correct unless shown to be otherwise on appeal, I consider these factors to be matters that must also be given some recognition in the context of a damages award in a case such as this. 799. In weighing this factor, it is relevant to observe that ultimately, in these proceedings, the liability issues in the principal proceedings were virtually conceded. In my view this circumstance justifies only a modest discount on this account, to recognise the possibility that at the notional trial, the defendant in the principal proceedings may not have taken such a pragmatic course as the one now taken in these proceedings on these issues. That s aid, Mr Arnold's correspondence to his insurer client tends to suggest a pragmatic approach would have been taken, as to defend the principal proceedings, the plaintiff's brother would have had to change the tenor and effect of his evidence, something I consider to be an unlikely event. 800. Fourthly, the plaintiff has to acknowledge the need for an offset of $140,000, being the net amount the plaintiff has in fact received from the settlement of $175,000 less the amount of $35,000 for costs. 801. As a result of the foregoing analysis, it seems to me that the appropriate adjustment to be applied as a discount to my assessment of the likely damages I have found the plaintiff would have been awarded in the principal proceedings, to take into account the vagaries, uncertainties and accidents of litigation, noting such factors can impact either for or against the financial interests of either of the parties to the litigation, is a discount of 15 per cent. 802. I consider 15 per cent to be a fair and sufficient discount on account of these factors because, in view of the ultimate concessions the defendants fairly made in these proceedings concerning the issues of duty of care, breach and contributory negligence in the principal proceedings, those issues would have been unlikely to have been determined against the plaintiff, thus lessening the extent of a required discount in these proceedings. 803. On this approach, when the sum of $649,887.40 is adjusted by a discount of 15 per cent as outlined above, this yields the discounted sum of $552.404.29. After applying the required set-off of the received amount of $140,000, this reveals the damages assessment in these proceedings to be $412,404.29, subject to the question of interest, as the plaintiff is entitled to an award of pre-judgment interest on these damages. Issue 11 – Adjustment for interest 804. A consideration of Issue 11 requires an adjustment for interest. A net assessment of $412,404.29 as at 30 November 2002 would have been payable as a judgment debt within 28 days, namely, 28 December 2002. In my view the plaintiff is entitled to post-judgment interest on this discounted and offset amount from that date. The Appendix to this judgment identifies that post-judgment interest calculations between 29 December 2002 and the date of judgment to be in the total sum of $290,744.99 pursuant to s 100 of the Civil Procedure Act 2005 and Schedule 5 of the Uniform Civil Procedure Rules 2005. 805. When interest in the sum of $290, 744.99, is added to the notional assessment of $412,404.29, this reveals the amount of a damages award and a judgment the plaintiff is entitled to receive in the current proceedings, in the sum of $703,149.28 after all required offset adjustments and discounts have been applied. E. DISPOSITION & ORDERS Disposition 806. The proceedings are resolved in favour of the plaintiff on all issues in dispute between the parties with an assessment of damages and interest in the amount of $703,149.28. In these circumstances the defendants pay the plaintiff's costs on the ordinary basis unless otherwise ordered. Orders 807. I make the following orders: (a) Verdict and judgment for the plaintiff against the defendants in the sum of $703,149.28; (b) The defendants are 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 Interest Calculations on $412,404.29 Period Date range Prescribed interest rate Days Interest amount 1. 29.12.2002 to 31.12.2006 9% 1460 $148,465.53 2. 01.01.2007 to 05.03.2009 10% 794 $89,712.05 3. 06.03.2009 to 08.09.2009 9% 186 $18,914.10 4. 09.09.2009 to 30.06.2010 9% 294 $29,896.48 5. 01.07.2010 to 04.08.2010 9.5% 35 $3,756.83 Total - - $290,744.99 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.