District Court New South Wales Medium Neutral Citation: Grewal v Khan [2013] NSWDC 61 Hearing dates: 19,20 March 2013 Decision date: 03 May 2013 Before: Judge Williams Decision: Verdict for Plaintiff Catchwords: MVA assessment - no matter of principle. Cases Cited: Ackling v QBE Insurance (Australia) Ltd 2009 NSWSC 881 MAA of NSW v Mills 2010 NSWCA 82. Kallouf v Middis 2008 NSWCA 61 Category: Principal judgment Parties: P: Inderdeep Grewal D: Solomon Khan Representation: P: Mr Lidden SC with Mr Khandhar D: Mr Catsanos Brydens Law Office for plaintiff Moray & Agnew for defendant File Number(s): 2011/381072 Publication restriction: Nil Judgment 1The adversarial system is ill equipped to determine medical, economic loss and dependent care issues in personal injury cases. It is astounding over the years how convoluted and impenetrable have become the means by which judges are expected to decide such matters. Regardless of the attempts to codify the problems in legislation such as the Motor Accidents Compensation Act (MACA), the Civil Liability Act (CLA) and the Work Injury Damages Act (WIDA), a lay person reading appellate decisions on these issues, could be forgiven for thinking he or she had arrived in a foreign country in their attempt to understand the Byzantine depths of legal logic and English grammar that has accompanied the attempted rationalisation of the law in regard to such claims in ordinary litigation. 2Lawyers, undeterred by the legislation or case law, have thought up more and more devious ways of extracting money from insurers, especially in regard to dependant care services and economic loss, that has spawned its own industry of vested interests in the medical profession, including psychiatry and psychology, the rehabilitation professions and the many other professions, some of them criminal, that ride on the coat tails of human injury and misery. Economic loss and dependent care amounts often grossly outstrip the entitlement, if any, to "non-economic loss", which used to be called "pain and suffering", an expression most lay people understood. 3In the present case, the plaintiff's injuries do not entitle him to damages for pain and suffering because they do not meet the statutory threshold. Notwithstanding that, there is a claim for economic loss in the order of $580,000 and for dependent care services in the order of $350,000 plus past and future medical expenses of $200,000. The defendant's assessment of the value of this claim at its highest is $315,000 so that the plaintiff's figure was inevitably going to be a bridge too far. 4When any court is asked to give a judgement in regard to such large sums of money the expectation is that a concerted effort would be made to establish the plaintiff's entitlement or disentitlement to it and that the arguments, in favour of or against, presented in a logical, clear and understandable manner and not on hastily scribbled pieces of A4 which tends to suggest that the first real attention paid to such a serious issue was dependent on how the case panned out before the particular trial judge. This case took a day and a half including addresses. Of course there is no transcript. 5The presentation of the case involved the calling of Mr Grewal and his wife (Ms Cheema) and the tender of medical reports and other documentation, including a number of MAS assessments. Mr Lidden SC for the plaintiff submitted that I should not pay much attention to the MAS assessments because they are not expressed as being given subject to the court's expert code of conduct and the maker of the report is not subject to cross examination, and that goes to the value to be placed on such reports. I have previously expressed a view as to the use a court can make of MAS assessments having regard to a number of Supreme Court decisions. Whilst concerned with a different issue in each case, s61 has been considered and obiter dicta expressions as to the scope of the certificate have been made in Ackling v QBE Insurance (Australia) Ltd 2009 NSWSC 881 and also in MAA of NSW v Mills 2010 NSWCA 82. 6In the present case it is not necessary to decide the issue because whatever their status, the MAS assessments were tendered by consent. Further, like all the other medical reports tendered by consent, the makers were not required for cross-examination by either party. As to the MAS reports not being expressed to have been made in accordance with the court's expert code of conduct, they have probably been made under the more onerous regime of the MACA and in a more independent environment than the parties own medical reports. 7It has always been the law in both tort and contract, that a plaintiff has a responsibility to mitigate damages and cannot therefore expect to be compensated for damages where it reasonable to expect the plaintiff to have made some effort to help himself or herself. In the present case, although the plaintiff has not met the threshold of 10% WPI, the case run on his behalf is that he is essentially unemployable and unable to do any work around the family home that he was previously able to do. Background:- 8The Plaintiff's date of birth is 09.07.1968. He is thus now aged 44. He attended school in India until the age of 17, leaving in 1985. He attended University and obtained Bachelor of Commerce between 1986-1991. He assisted his father's trucking business between 1992 & 1995 and also obtained work experience on a part time basis with the Indian Trailer Association. He did some computer studies in India but did not complete them. He married in India in 1995. 9He migrated to Australia inSeptember 1995 and in 1996 attended computer studies for 4 months. He was employed as a machine operator with Australian Plastic Profiles in Caringbah in 1996 and during that time also did a three month contract with a company as a web page developer and internet support. 10He then obtained work as a dispatch clerk and picker and forklift driver with Soul Pattinson's warehouse in 1997 where he remained until his accident. The company was taken over by Australian Pharmaceutical Industries (API) but he remained in employment. 11Whilst employed with API he set up and ran a computer consultation business called ISG Network Technology which he operated between 1997-2000. That ceased when he was required to do more overtime with API. 12His first child was born on 24.07.2000. 13He was involved in motor vehicle accident in 2004 but suffered no ongoing problems and returned to work after a brief absence of some weeks. Mr Grewal's wife, Ms Cheena, had also been in full employment but in about April 2007 she went on maternity leave. 14The date of the subject accident was 02.08.2007. As liability is admitted, this case has proceeded as an assessment only. I accept that the accident was quite violent and that Mr Grewal's car was written off. During the accident he injured his left knee, shoulder and chest, the latter apparently being seatbelt related. The knee has continued to be the source of greatest disability. 15His second child was born on 02.12.2007. He travelled to India for 3 weeks with his family in 2008. 16In Feb 2008 he had an arthroscopy of the left knee. 17He ceased active employment with API on 04.12.2008. 18Since that time he has been assisted in job search by various Workers Compensation Rehabilitation Providers whilst in receipt of Workers Compensation Payments until mid 2010. 19He attended a Logistics Course at Wetherill Park TAFE and obtained Diploma in 2009. He also completed a Diploma in Purchasing. These courses were for 6 months each and involved two afternoons a week. 20His employment with API was formally terminated on 27.04.2010. 21He travelled to India in September to November 2010 (the chronology says 2011) because his father had passed away and for the funeral. He also travelled to India without the family on the anniversary in September 2011. 22He stopped physiotherapy treatment in 2012. In Feb 2013 he was contacted by a Workers Compensation Rehabilitation provider to join a Job Club to search for work and which he has done. He continues an exercise program at home, hydrotherapy and counselling. 23Mr Grewal gave evidence. He was shown the chronology, which is exhibit 1 in the proceedings and agreed that that was an accurate general reflexion of his work history and life events to date. He was born in India and came to Australia 1995. Before coming to Australia he had gone to school in India and on leaving school had worked with his father who had a semi trailer, mainly doing office work, but also looking after trucks when his father was away. This was during a period when he was studying for a Bachelor of Commerce degree which he eventually obtained. Also whilst in India he attended some computer courses but did not complete them. 24Shortly prior to coming to Australia he married and his wife has also given evidence in these proceedings. 25On his arrival in Australia he has essentially been in full time employment of some form or another. His initial employment was as a machine operator with Australia Plastic Profiles. He was then employed by Alpha Net at Chatswood as a web page developer and an internet support on a three month contract. He then found employment as a dispatch clerk and picker and a fork lift driver with Soul Pattinson warehouse which later became Australian Pharmaceutical Industries (or API). Between 1997 and 2000 he also operated his own computer business known as ISG Network Technology. However that ceased in 2000 when his work with API became full time and he was sustainedly doing more overtime. 26They had their first child in 2000. In 2004 he was involved in a motor vehicle accident suffering a soft tissue injury to the left shoulder and neck. He said he had a couple of weeks off but that got better and he returned to normal work lifting up to 25 kilograms. 27I'm satisfied that Mr Grewal suffered no ongoing disability as a result of this accident. Shortly prior to the date of the accident in question which occured on 2nd August 2007 his wife, Ms Cheema, who had been in employment herself, took maternity leave. The accident occurred on the 2nd August and on the 2nd December 2007 their second child, a boy, was born. 28The accident in August occurred on his way home from work when apparently another vehicle made a right hand turn in front of him, both vehicles travelling at approximately 50 to 60 kph. His car was written off which is somewhat indicative of the violence of the collision. During the course of the collision he suffered an injury to his left knee and his left shoulder and chest where the seat belt had been. He was taken to Liverpool Hospital in pain but apparently the x-ray department wasn't open at the time and he was refereed to his local GP and eventually sent home. He saw Dr Singh, who wasn't his usual GP, and after a period of time he was referred to Dr Giblin, an orthopaedic surgeon, because of ongoing problems in his left knee. 29He lodged a workers compensation claim form and medical expenses have been paid by the workers compensation insurer and he is still in receipt of workers compensation weekly payments and some medical expenses. The evidence of Mr Grewal:- 30When he saw Dr Giblin an MRI was performed and he was prescribed physiotherapy and eventually an arthroscopy, although Mr Grewal had to see the workers compensation doctor to get approval for that procedure. After the operation he described feeling very painful but the operation had helped with the pain that he was experiencing in his knee and also helped with the fact that his knee was locking and clicking. However after a time the knee pain came back, but not the locking and clicking. 31In March 2008 he was cleared for light duties which he undertook but then he was transferred to full time work on a number of different jobs with API mainly in regard to office type work and some form of data entry and the like. At some stage an attempt was made to put him back into his old job, which before the accident had been as a fork lift driver lifting stock where he would spend most of the day doing heavy lifting and on his feet. He says that Dr Giblin wrote to his employer saying that he wasn't suitable to go back to doing that type of work. He was still getting pain in the knee despite undertaking gym programmes and some exercises although he had difficulty doing that type of thing. At the end of 2008 his knee was still painful and his employer sent him home because they no longer had any suitable light duties for him and he hasn't returned to work since then. 32There after he said that he started getting pain in his right knee, which he attributes to compensatory problems caused by putting pressure on that knee in order to favour his left knee. An MRI was conducted of his right knee by Dr Giblin and some injections were a bit helpful. He says that workers compensation arranged rehabilitation through a number of organisations and that over a period of time his chest problems cleared up but his right shoulder was still a problem from time to time. He said that last month he was sent for a job interview but, as has been the case previously when he informs people that he has a knee problem, he wasn't considered any further. 33He says that he has been looking work himself on line and in the newspapers but hasn't found anything that would be suitable to his condition despite having done the two diplomas in logistics and purchasing. He indicated that he knows that if he doesn't apply for jobs that his workers compensation will cut out. He maintains that on an average he applies for 14 or so jobs per fortnight and keeps a job log sheet for the purposes of worker compensation, although a document like that hasn't been tendered in evidence in these proceedings. He says he still experiences pain in the left knee that he can't sit for long or stand for long. On a good day the pain is a bit less, which he said is about 3-4 out of 10 but on a bad day it can be up to 8 out of 10. He says he can't kneel and that squatting is difficult and stairs are a problem. He says that his knee is not improving but that also it doesn't appear to be getting worse. As far as his right knee is concerned, on a good day the pain is 2-3 out of 10 and on a bad day up to 6 out of 10 and he cant really kneel on that knee. He is still getting medical certificates for suitable work not involving bending, lifting and the like. 34He says emotionally he feels very down and is seeing a counsellor called Angela Parasher. She is helping him to deal with job search pain management and his exercises which involves stretching and the like. He says his sleep is worse, he gets insomnia and palpitations. Whilst he was in employment at API after the accident he had problems with his team leader, which caused him anxiety. 35At the present time he has problems with his wife. They have a mortgage on the house and had to sell and investment property in order to help out with expenses. He sees Ms Parasher every 3 or 4 weeks and has been prescribed Endep, Avanza, Lexapro, Zoloft, at times over the years. He says that seeing Ms Parasher has kept his emotions fairly stable. He says that operations on one or both knees are probable and he is prepared to have surgery if that's required because he gets on well with Dr Giblin. He has put on some weight but at the moment he is doing basically his own treatment and he no longer has physiotherapy. He wears knee supports for both knees and he has a TENS machine that he still uses. He says that he couldn't do the Australian Plastic Profiles job any longer or computer work or the work at API. He says hydrotherapy provides some help. 36His second child was born 4 months after the accident. The plan had been to do the same as for the first child. His wife had a year off after the first child until the child went into child-care. 37In regard to domestic chores he says that before the accident he mowed the lawns and looked after gardens and also did 60% of the vacuuming sweeping and mopping as well as 60% of the hard work involved in cleaning the bathroom and the kitchen. He said he loved cooking and did 80-90% of the evening meals and at weekends. He also said that he did about 60% of the clothes washing this was because his wife was away quite often from Monday to Thursday or Friday and sometimes in the country overnight. He said he did most of the shopping. 38Since his injury though he says that now he pays for someone to do the lawn mowing $50 a month and he doesn't do any gardening. No one looks after the garden and he has in fact concreted the back yard to overcome that problem. He says his wife now does the cleaning the mopping. He said he doesn't do very much cooking, although his psychologist has suggested that he ought to do something to make himself more active and less depressed and he says that he now does about 5-10% of the cooking but only relatively straightforward and minor meals. His wife does the washing and ironing and she does most of the shopping and that if he had someone to do these things that would be a help, because his wife and his relations have now deteriorated and they now sleep in separate rooms. 39He agreed in cross-examination that the last time he had seen Dr Giblin was in July 2012 and that was at the request of his solicitors for a medico-legal report. He said that Dr Singh checks his blood pressure and stuff and that he was referred for physiotherapy in 2012 and had 2 sessions and that Dr Singh also prescribes him pain killers Tramal and as well as anti inflammatories such as Mobic. He says he gets variation in his pain. He still drives a car, which is an automatic, but not on most days although he drives one of the children to school. His daughter catches the bus. He drives most days to school but that's only a fairly short distance. He says when he is looking after his son at home he makes food for him in the morning. He might make an omelette or prepare some coco pops or some sandwiches and he sometimes cooks with a slow cooker but he can't do any other cooking, such as for the whole family, because it involves too much standing in the one spot. 40He says he spends time looking for work at home and looks after his own personal hygiene. He says that if he stands for a long time he gets pain and he may need to put on an ice pack but he acknowledged that he could stand for 30 minutes. He drives to the school, which is a kilometre away, and to his job club which is in Liverpool, about 4-5 kilometres away, where he goes about twice a week and then comes straight home. He says most of the day he does stretching exercises which takes him 5-10 minutes three times a day and that he watches his daughter as she goes to the bus stop and then takes his son to school. 41He says he doesn't do any dusting because essentially he doesn't have enough time with other things to do, attending doctors, attending job club, doing job searches, hydrotherapy and seeing his psychologist, although he did agree that he could do up to half an hour's dusting a day. He says that he doesn't do any laundry now. The machine is a top loader and sometimes he will put the clothes in a basket and leave it there to be done. In response to some questioning by Mr Catsanos he indicated that in any event he doesn't do the washing, the washing machine does the washing. 42At best he says he could manage one or two small t-shirts but he can't lift heavy baskets of clothes downstairs or upstairs because he needs to hold a rail because of his knees. He says when he gets back from taking his son to school, he puts ice packs on his knees and he does stretches. He concedes perhaps on a good day he would be able to iron one shirt, which would take him 10-15 minutes, because he can't stand for long and doesn't really have time to do it anyhow. 43He agrees that he went back to work 10 days after the accident to suitable light duties and that he was driving about an hour to and from work each day and his light duties were essentially of a clerical nature, 8 hours a day sitting and moving around operating some sort of help desk and doing a bit of data entry, and he was basically doing that from February 2008 to December 2008. He says he is unable now to do any vacuuming. He had difficulty plugging in and pulling the vacuum cleaner around because of his knees. It increases the pain level because it involves twisting movements. He tried it once but was unsuccessful. 44The plaintiff was cross-examined extensively by Mr Catsanos in relation to what he can and can't do in fairly minute detail as to the many day to day tasks that everyone has to at some stage assist with in a shared living environment. My impression of the plaintiff was that at times he was prevaricating and obfuscating and after hearing his wife's evidence I got the impression that, no matter what the situation actually was in regard to her husband, she wasn't prepared to push him to do more around the house and she was quite content, as it were, to look after him as an invalid and that he was quite prepared to accept that role from her. 45As far as work is concerned he maintains that he wouldn't be able to become involved in computers again because its been too long since he was last involved in the industry and too much has changed. That's something that I have some difficulty with. I don't think its all that hard to get yourself up to date with what's happening in that area and Mr Grewal is an intelligent man. He has a degree in commerce which, whether or not it's of any value to him here in Australia, is at least indicative of an ability to study in an orderly way. Oddly enough he hasn't thought of doing any information technology courses in order to improve his expertise in that area. 46Apparently it was suggested in rehabilitation that he might be able to obtain a bus licence or a truck licence but he says that because he can't get into or out of trucks he had not proceeded with that occupation, although he conceded that he thinks he probably would be able to drive buses, such as commuter buses from locations to and from the airport. I would be prepared to accept that driving a truck is probably beyond his physical capacity but I don't see that getting into and out of a bus could be equated in any way to getting into and out of the cabin of prime mover or other large truck. 47He said that he could drive if it didn't involve any heavy lifting. Although he has a forklift licence, because he can't up-load and off- load pallets or get up or down from the forklift he hasn't made any enquiries in regard to forklift jobs that involve driving a fork lift only. He said he wasn't sure what sort of job he could do, perhaps some administrative work, but as to where and what sort of work he could do he was unsure. 48He was asked some questions about left knee pain. When he saw Professor Noll, the doctor recorded that the plaintiff said to him that his left knee pain would come and go. Mr Grewal maintains that he didn't say that to Professor Noll and he's always got pain in his knee and recently he's also been developing pain in his heel. He indicated that he goes to job club twice a week and he spends 5-10 minutes a day on the computer looking for work. Sometimes he looks in the newspapers. He said maybe he would try accounting but hasn't looked to see what courses are available and that he's really looking for sedentary work but essentially feels because his English is accented and because of his disabilities he is really unlikely to be able find any meaningful work. Ms Cheema's evidence:- 49Ms Cheema is currently employed full time as an account manager. She says that before the accident Mr Grewal was a bubbly outgoing personality who hadn't been out of work for 5 years, who worked a lot of overtime which had enabled them to obtain an investment property, since sold to help with mortgage and other expenses. After the accident she says he was a totally different person who didn't go out, takes a lot of medication, is always down and that she has "lost him in a way". Despite counselling and anti depressants she hasn't seen much of a change in him. "It's like living with an old man". She said the loss of his job affected him massively being in a lot of pain and in effect no longer the head of the household. 50She said he was active in household chores doing most of the cooking, the lawns, the car and "we shared the cleaning" like she would vacuum and he would mop and vice versa. They would shop together. Since the accident he hasn't done any of that and she now carries out those tasks. They get someone to cut the grass but can't always afford it and the grass gets very long. She confirms his minor contribution to cooking. She has taken over work that he used to do and this causes friction but she has to do it. She estimated she does about 171/2 hrs a week that formerly her husband would do. 51In cross-examination she acknowledged that when he was doing light duties he would be away all day but would sometimes come home early because of the pain. She had 1 year and 4 months off work because she was made redundant at the end of her maternity leave and took some time to find other work. She says Mr Grewal wasn't helping with their new child because of pain and being emotionally down. When she returned to work he took some care of the youngest but her mother did most of that. Despite that she was confident he could look after the child for some periods which may have been as much as two days a week. She confirmed her husband's evidence of his general disabilities but says that while perhaps there are some activities he could undertake, she doesn't let him because she doesn't want to make things worse. She doesn't accept that he is lazy. He does try to help to a degree and would like to work not involving lifting or bending such as an office job but, as she says, who would employ someone with a heavy accent, aged 44 and on workers compensation. She cried when commenting on the poor communication she now has with her husband. Other evidence:- 52The plaintiff tendered the chronology and medicals as well as tax returns, wage records and attendant care figures. The defendant tendered its medical reports. At the close of the evidence a great bundle of material from Quality Occupational Health, a workers compensation rehabilitation provider, was tendered [exhibit 10] without any attempt to indicate what parts of this voluminous material was relevant or relied upon. Indeed both parties used the shotgun approach in their medical evidence, firing it out for the court to do the investigative work and come to a conclusion. One trouble with this approach, apart from being forensically bad conduct, is that it means the court is being asked to resolve differences of opinion without any particular point of reference other than the evidence of the plaintiff and Ms Cheema. As far as exhibit 10 is concerned I do not see that it is my task to wade through a 2cm thick bundle of reports on the off chance that they may contain something of advantage or disadvantage to either party. As my attention was not drawn to any aspect of any of this material I have had no regard to it. 53I agree with defence submissions that the evidence of the plaintiff's attempts to find work lack substance. There is no evidence of any resume, the names of persons contacted for work, the type of work in question and what was physically involved in that work. The only job description of work Mr Grewal applied for, unsuccessfully, was a recent pizza delivery job. 54Dr Giblin, the treating orthopaedic surgeon, gave a final assessment in July 2012 (his 23rd report). His opinion remained the same as before that the plaintiff had sustained an injury to his left knee involving the articular cartilage of the retro-patelar surface and that he was also developing similar symptoms in his right knee due to favouring the left knee, which tended to suggest an aggravation of underlying degenerative change. He was unfit for work involving prolonged standing, squatting, kneeling, climbing stairs and ladders and the like. Further surgical intervention of the left knee was not anticipated but he may require arthroscopy of the right knee at a cost of $12,000. He would need to see his GP three times a year and may require occasional physiotherapy in blocks of four to six treatments. He recommended domestic assistance for 4 hours a fortnight for gardening and lawn mowing only. 55The Plaintiff was also seen by a number of other orthopaedic surgeons, Dr Herald in 2007, Dr Conrad in 2009, 2011 and 2012 and Dr Deveridge in 2009, 2010 and 2012. 56Dr Herald's report does not add much to the overall picture basically confirming the initial diagnosis of Dr Giblin. Drs Conrad and Deveridge's reports are summed up in each of their final reports. 57On 27 Nov 2012 Dr Conrad said:- OPINION:- This man was involved in a motor vehicle accident on the 2nd August 2007. As a result he sustained some chest trauma, which has mainly resolved, but he has some occasional stiffness present. He injured his left shoulder and has some residual stiffness in his left shoulder, but full movements on examination. His predominant injury was to his left knee and both MRI scan and arthroscopy have shown articular damage to the retropatellar surface and he has ongoing pain and stiffness in the left knee despite arthroscopic trimming. Undoubtedly, this is due to the development of patellofemoral arthritis, which will gradually deteriorate over the years. Due to favouring his left leg, he has sustained pain and stiffness in the right knee and he continues to need physiotherapy on a needs basis. In my view, he is not able to work fulltime as a storeman, doing unrestricted work as he did at Australian Pharmaceutical Industries. He might be able to do light storework or depot work or cleaning work doing twelve to fifteen hours per week in a position where he is able to stand or sit at will, not lift or carry anything more than five kilograms in weight, not go up and down stairs or ladders or squat or kneel. This should all be part of a structured rehabilitation program. As previously stated, undoubtedly he will develop arthritis in the left knee, however it is difficult to give a timeframe or quantify this. Should his wife not be able to assist with the heavier part of housework, cooking and cleaning, he might need about six hours per week of Home Care assistance. His prognosis is guarded. 58Dr Deveridge on 28 November said:- PHYSICAL EXAMINATION:- There was mild left sided antalgia as previously noted. He can still only perform a half squat. Left knee joint - there is some low anteromedial joint line tenderness but no effusion. The presence of minor lateral patella tracking with irritability and crepitation on motion was again observed. He has a limited range of motion from 0° to 125°. There was no ligamentous instability. McMurray's sign is negative. There is mild thigh muscle wasting as previously noted. Calf girth measurements were equal. Right knee joint - also unchanged with mild anterior joint line tenderness but no effusion. There was a good range of motion from 0° to 135° without significant patella mal tracking or crepitation. Left heel - he has some focal tenderness consistent with a plantar fasciitis. Both hip joints were fully mobile. Left shoulder joint - contour is preserved and there is a full range of motion. Once again he experienced some low-grade discomfort with full flexion, abduction and external rotation. OPINION:- Your client remains moderately disabled with chronic left knee joint pain, intermittent swelling, stiffness and some loss of agility. Diagnosis remains consistent with post traumatic patellofemoral chondromalacia with mal tracking. (As previously reported, I did not consider that his other complaints were causally related to the subject motor vehicle accident, including the right knee, hip, spine and left foot conditions). On the balance of probabilities, residual disability in the left lower limb is attributable to the injuries sustained on 2.8.2007. No significant pre-existent or pre-disposing conditions were identified. He has some mild symptoms but no measurable loss of function relating to a soft tissue injury at the left shoulder, sustained in the same accident. As a result of the left knee injury, he is permanently unfit for the usual work tasks of a storeperson and probably also for the tasks of a forklift operator. He could lift up to 5kg at bench level on a regular basis and up to 10kg occasionally. He should not perform any repetitive lifting from ground level. He needs to rest from weight bearing at least every 30 minutes or so. He cannot work in awkward knee positions, kneeling, crouching, nor can he regularly negotiate stairways. He should keep away from steep inclines, rough and uneven surfaces. He should avoid all impact activities. He is fit for light to moderate work with these restrictions. Any return to work would need to be graduated to allow conditioning, and a reasonable starting point would be four hours a day on five days a week, bearing in mind the above restrictions. I doubt if he could function as a truck driver within a properly equipped vehicle with only driving duties (he would inevitably be required to climb in and out of the cabin and fix loads). He could function as a bus driver or courier, again with the above restrictions and a graduated return to work. He has some limitations on activities of daily living and is reasonably receiving some assistance for heavier domestic chores and lawn maintenance. As previously reported, he could still come to one or possibly two further arthroscopic chondroplasty and debridement procedures in the foreseeable future. I have provided costs of surgery, which may be updated by CPI. As previously reported I would not recommend a tubercle osteotomy. He should continue with his own exercise and stretching programme and he is familiar with patella taping. Occasional sessions of physiotherapy ($75 per session) could be provided at times of future relapse. He does not require ongoing treatment for the left shoulder condition. His injuries are chronic and stabilised. He has reached maximal medical improvement. The condition has been medically stable for the previous three months and it is unlikely to change by more than 3% WPI in the next 12 months with or without further medical treatment. The prognosis for the left knee injury remains guarded. 59There is a dispute on the Plaintiff's psychiatric condition. In that regard there are a number of reports from Dr T O Clarke for the plaintiff and Dr S Smith for the Defendant. There is also a report from Dr Prior prepared as a MAS assessment. It would be a reasonable summary of the situation that Drs Smith and Prior are at odds with Dr Clarke who opines that the plaintiff is suffering from Chronic PTSD. Dr Prior, in May 2011, found Mr Grewal suffering from a Chronic Adjustment Disorder with Anxious and Depressed Mood. 60Dr Smith found in June 2012 that :- Mr Grewal has not developed a formal psychiatric disorder in response to the motor vehicle accident that occurred on 2 August 2007. I did not find clear and convincing clinical evidence to support a formal psychiatric disorder ... . I respectfully disagree with the opinions expressed by Ms Angela Parasher that Mr Grewal sustained a Post-traumatic Stress Disorder. The symptomatologies that he experienced did not equate to the development of a Post-traumatic Stress Disorder. In this regard I agreed with the opinion of Dr Prior who also found no clinical evidence for a Post-traumatic Stress Disorder. I respectfully disagree with the opinion of Dr Prior that Mr Grewal has experienced a Chronic Adjustment Disorder with Depressed and Anxious Mood. Any symptomatologies experienced by Mr Grewal in my opinion have been but normal variants in response to the accident in question. In my opinion Mr Grewal's presentation is not consistent with a Major Depressive disorder, Generalised Anxiety Disorder nor Panic Disorder. He displays marked avoidant and dependent behaviour. One would have anticipated significant improvement to have occurred given the length of time that has elapsed since the injury took place. 61Disagreement between Dr Clarke and Dr Smith in a forensic situation is something I have experienced in other proceedings involving, in one instance, concurrent evidence. Fortunately in the present case there is another opinion, perhaps of a more independent nature, that of Dr Prior's MAS assessment. Whilst Dr Clarke had other medical material available, it was all from the plaintiff's practitioners, whereas Dr Prior and Dr Smith had material from both sides. In my view the most reasonable approach to take is reflected in Dr Prior's report. In his report Dr Prior says that :- He drove alone to the assessment venue, a journey of half an hour. He was familiar with the location of the assessment venue. When asked how the road journey to the assessment was he said "okay". When asked about his attitude to coming to the assessment he said "okay". He reported taking Panadol Osteo, a simple analgesic agent, on the morning of the assessment and his usual anti-hypertensive medication. He denied substance intake. There was no evidence of substance intoxication or clinical withdrawal. He was fully alert and conscious. He was not sedated. His grooming, hygiene levels and attire were within normal limits. His hair was worn neatly. He was clean shaved. He wore spectacles. He was neatly dressed. He had a thick chain bracelet on one wrist and wore a ring on a finger. He carried a bag of x-rays with him into the examination room. He displayed frequent pain behaviour, flexing and extending his knees and his feet, moving sideways in his chair, standing to stretch and changing chairs at one stage during the assessment. When asked to rate his pain levels on a subjective scale where zero is no pain and ten is the maximum pain imaginable, he rated his pain during the assessment as three to four out often. Rapport was established. There was no psychomotor retardation noted. He greeted me warmly. He said goodbye in a friendly fashion at the end of the assessment. Initially in the assessment he clenched his hands in an agitated fashion for a period but then this ceased. He occasionally sighed throughout the assessment. He spoke spontaneously and coherently at normal rate and volume. He spoke in normal detail and at normal length. His affect was dysphoric. His affective range was diminished. He did not display irritability or impatience. He was able to smile appropriately on several occasions. His thought form was normal. There were no abnormal thought contents or perceptual abnormalities. Clinical tests of attention, concentration, orientation, and short term memory revealed these to be intact. The history elicited was internally consistent. The history elicited was consistent with the mental status examination. Dr S Dalton, in a report dated 9 December 2010, mentions "significant psychological overlay". Treating GP, Dr P Singh, in a Motor Accidents Authority medical certificate dated 10 March 2008, makes no psychiatric diagnosis, nor does he mention any psychiatric symptoms. Psychiatrist, Dr S Smith, in a report dated 8 November 2010, mentions "initially ... acute stress reaction ... substantially resolved ... no longer demonstrates diagnostic criteria for Acute Stress Disorder". Psychiatrist, Dr T Oldtree Clark, in a report dated 12 May 2010, mentions "Post-Traumatic Stress Disorder with severe depression". Recent treating psychologist, A Parasher, in a report dated 20 Juiy 2010, mentions "depression/anxiety and Post-Traumatic Stress Disorder symptoms". I found no evidence, historically or currently, of Post-Traumatic Stress Disorder. I found no evidence, historically or currently, of a severe depression. The "depression/anxiety" and "PTSD symptoms" mentioned by recent treating psychologist, A Parasher, would be consistent with an Adjustment Disorder. However, they are not consistent with the full criteria for Post-Traumatic Stress Disorder or a Major Depressive Disorder. He does not currently nor has he historically, on the history I elicited from him and the history he related spontaneously, fulfilled diagnostic criteria for a Post-Traumatic Stress Disorder. Because of his affective and anxiety symptoms which he currently has and has had in the long term, which do not fulfil the diagnostic criteria for a Post-Traumatic Stress Disorder nor a Major Depressive Disorder, I have redefined the diagnosis as being one of a chronic Adjustment Disorder with Anxious and Depressed Mood. The cause of the above diagnosis is his pain and physical limitations and consequences of these including changes to his social and recreational activities, his inability to work and inability to find work, together with the motor vehicle accident itself. 62Mr Grewal was seen by a psychiatrist, Dr Edwards in September 2007 for the defendant. He found that the plaintiff met the DSM IV criteria for Acute Stress Reaction with sleep disturbance, nightmares, headaches and some anxiety but here were also some underlying personality and relationship difficulties unrelated to the MVA. He was fit, psychologically, for pre accident duties. 63In my view the evidence does not support a diagnosis of Chronic PTSD as that illness is understood. Having heard the plaintiff, I can see why Dr Smith reached the conclusions he came to and I don't accept the submission that Mr Grewal's behaviour in cross examination is necessarily evidence of a serious underlying mental condition. Ms Parasher's qualifications are in counselling and whilst what she says in that field is unexceptionable, I do not consider her qualified to give what is in effect a psychiatric diagnosis. 64The MAS also carried out an Attendant Care Service (ACS) assessment by Ms C James on 26 Jan 2011. She assessed a need for such services for Mr Grewal as being required for 4 hours per week to 14 March 2008 and 2.85 hours per week since. A claim is made for past ACS of 10 hrs per week at $22.00 per hour and for the future of 8 hrs per week for 40 years at either the rate of $40 per hour, paid or $26.50 per hour, unpaid. That does not include a claim for past and future lawn mowing costs. I note that in September 2010, Dr McGroder, an MAS assessor in regard to ACS issues said although some assistance in the past and for the future would be required, Mr Grewal could do considerably more than the amount of activities he alleges and he questioned whether a time frame of 10 hours assistance per week was realistic. I agree such a figure is not realistic. 65He saw Dr Noll an orthopaedic surgeon, in March 2009 and December 2012. In his final report Dr Noll said that :- The general appearance of his lower extremities was normal. It should be noted that at the time of the previous assessment he was found to have obvious relative wasting of the left thigh muscles as compared to the right. At today's assessment however there was no evidence of any muscle wasting and circumferential measurement of the thighs and calves did not reveal any significant discrepancy between the two sides. Muscle strength in relation to both lower extremities was normal on clinical testing. The range of movement of the left knee was from 0 to 140° which was equivalent to the range of movement on the left side. Collateral and cruciate ligaments were intact. There was mild patellofemoral crepitus bilaterally. There was no swelling of the left knee and no evidence of any effusion or synovial thickening. He had a full range of pain free movement of his ankles and hindfeet with the ranges of movement being equivalent on the two sides. He reported some localised tenderness over the plantar aspect of the left heel. He complains of ongoing left knee pain but, other than mild patellofemoral crepitus, clinical assessment today did not reveal evidence of any significant abnormality. There was no evidence of thigh muscle wasting at today's assessment; the left thigh muscle wasting noted at the time of the initial assessment has resolved completely. He reports having some ongoing left shoulder pain but was noted to have a normal range of movement of his left shoulder at today's assessment. An x-ray of the left shoulder in March 2011 revealed evidence of some calcification in relation to the supraspinatus part of the rotator cuff (calcific tendinosis) which is a constitutional disorder unrelated to trauma. He was noted to have a normal range of shoulder movement at today's assessment. Mr Grewal may continue to have some ongoing left knee symptoms arising from the degenerative changes in relation to the patellofemoral joint. Significantly however he has regained normal left thigh muscle bulk which suggests that there has been marked improvement in left knee function. He requires no further investigations or specific treatment in relation to his left knee. He may continue to experience some ongoing symptoms in relation to his left shoulder associated with the calcific tendinosis noted on x-ray but in my opinion this does not relate to the subject accident. In my opinion Mr Grewal is fit to undertake full time work. It would probably be reasonable for him to avoid work which would require repetitive squatting or climbing up and down ladders, which would possibly result in aggravation of patellofemoral symptoms. There is however no evidence of abnormality of the tibio-femoral component of his left knee and it is unlikely that he would experience any symptoms associated with walking or standing for any length of time. He would in my opinion be fit to undertake most routine domestic and garden maintenance activities including vacuuming and lawn mowing. He does not require any paid assistance in this regard. I would accept that he would possibly have difficulty with some domestic maintenance activities which would require climbing up and down ladders and in this regard he would possibly require sporadic paid assistance. 66Mr Grewal saw Dr Dalton, a rehabilitation physician in December 2010 and July 2012. Dr Dalton provided three reports, one involved comment on other experts. 67In his first report, Dr Dalton noted amongst other things that:- The report from his physiotherapist suggests that Mr Grewal has been excessively injury focused and has been non-compliant with his exercise programme in the past. This reinforces my view that there is significant psychological overlay in this case and avoidant behaviour on the part of Mr Grewal. I find that there is no reasonable basis for his claim that he is unable to undertake a range of domestic and household activities. I find it most surprising that Mr Grewal does very little in the way of housework or assisting his wife who works full-time. His claim that he cannot stand for long periods to wash dishes or hang out washing is inconsistent with the underlying condition affecting his left knee and reflects his excessive disability focus and functional overlay. He presents as being poorly motivated and despite his claims that he was getting more benefit from a supervised exercise programme there is no evidence to suggest that that was the case. ... . The inconsistencies and non-organic clinical signs noted during assessment suggest that there is significant exaggeration and embellishment of his disabilities at this time and it is my view that Mr Grewal is not nearly as physically disabled as has been claimed. To what extent his pain behaviour reflects fear avoidance is unclear but reports from his physiotherapist and the results of previous functional assessments indicate that lack of motivation and noncompliance have been significant barriers to his physical rehabilitation previously. In my opinion there is no need for domestic or household assistance arising from his injuries. If anything Mr Grewal should be encouraged to participate more in the normal household activities at home to reduce the workload on his wife. ... . His symptoms are no doubt aggravated by the fact that he has now become deconditioned and is overweight and on that basis a weight loss and exercise programme should see a reduction in symptoms and an increase in functional tolerances. There is significant psychological and functional overlay present. Reasons for this are unclear and may reflect fear avoidance behaviour, anxiety or simply Abnormal Illness Behaviour. His reported level of symptoms and disabilities are disproportionate to injuries received and the pathology which has been demonstrated and are also inconsistent with objective clinical findings on examination. No underlying organic pathology has been identified which would account for Mr Grewal's difficulties with weight bearing and functional limitations within the home. He is fit for full-time sedentary and semi-sedentary work and has a number of transferable skills. He claims to be actively involved in job seeking but presents as being poorly motivated and disability focused. 68In a report of 5 May 2011 he was asked to comment on reports of Dr McGroder and Ms James the MAS assessors with whom he disagreed, Dr McGroder as to his diagnosis of chondromalacia patellae due to an impact injury and Ms James as to her assessment of some need for ACS because she had not given adequate consideration to the inconsistencies and discrepancies noted between his subjective complaints, fear avoidance and pain behaviours and the lack of objective findings on clinical examination. 69In his final report Dr Dalton said that:- Little has changed with respect to this man's clinical findings on examination and his subjective complaints. He is still reporting chronic left anterior knee pain but is now reporting increasing pain in his right knee. He describes functional limitations with respect to walking distances, squatting and stair climbing. He indicated that he has continued to look for work but has been unsuccessful to date and he also reported symptoms of sleep disturbance and depressed mood. As before I was struck by the lack of objective clinical findings with respect to Mr Grewal's left knee. There was no localised tenderness, no joint swelling and no disuse muscle atrophy. There was a noticeable absence of pain during the clinical examination and yet Mr Grewal presents with significant functional limitations which appear disproportionate to objective clinical findings. I would not seek to alter my previous opinion in relation to Mr Grewal's clinical condition. As I have stated previously the only physical restriction which I would consider reasonable and consistent with the diagnosis of chondromalacia patellae and early patellofemoral arthritis is that Mr Grewal would have some difficulty with repetitive crouching, squatting and climbing but in my opinion he remains physically fit to undertake full-time employment. He would certainly benefit from a weight loss and exercise programme but his deconditioning most likely reflects his sedentary lifestyle and depressed mood. I note the MAS Certificate of Dr Prior which considers that Mr Grewal suffers from a Chronic Adjustment Disorder with Anxious and Depressed Mood and that is consistent with my assessment of this man. However, as I have identified previously, there is considerable discrepancy between Mr Grewal's subjective complaints and claimed functional limitations and the lack of objective clinical signs. For someone who is reporting such significant restrictions with respect to squatting, climbing and walking one would expect there to be either objective clinical signs of synovitis or symptomatic arthritis of the affected knee, or alternatively one would expect signs of neuropathic pain and central sensitisation neither of which were apparent in this case. I therefore do not seek to alter the opinions expressed in my previous report dated 9th September 2010. Other than a self-directed exercise programme and weight loss I do not consider that any further physical treatment or rehabilitation is indicated now or in the foreseeable future. Given that this man has apparently undergone counselling I think that it is unlikely that he would benefit from further psychological intervention. I believe that his depressed mood and general inactivity is closely related to the fact that he remains unemployed. Although he claims to be actively involved in job seeking I formed the view that he is poorly motivated and disability focused. Whether this reflects disillusionment and frustration at his failure to find work or whether this is a reflection of his Chronic Adjustment Disorder and the ongoing medicolegal process is unclear. However, my previous recommendations and opinions regarding to this man's current level of disability and prognosis for recovery and return to work has not altered. Similarly I do not seek to alter my previous opinion with regard to Mr Grewal's functional limitations and whether or not the accident on the 2nd August 2008 has created a past or future need for domestic assistance. I would go so far as to suggest that Mr Grewal should be encouraged to become more functionally independent in the home. I think that this will benefit him physically and psychologically. Provision of ongoing domestic assistance will, in my view, reinforce this man's strong disability focus and illness behaviour and will be counterproductive in the long-term. I would defer to independent psychiatric opinion in determining whether or not Mr Grewal is likely to benefit from psychological or psychiatric intervention but my view is that this man's physical and psychological recovery would be greatly assisted by a successful return to work programme. Unfortunately the fact that he has been unemployed since 2009 and has failed to find alternative employment is a poor prognostic indicator, particularly whilst he is still involved in the medicolegal process. 70I would agree with the defence submission that Mr Grewal's manner of giving evidence tends to suggest exaggeration and embellishment as observed and commented on by Dr Dalton. The fact of the matter is that Mr Grewal worked after this accident for almost 12 months on light duties which only ended when his employer had no further work. There is nothing to suggest that this situation could not have continued and that nothing caused by the defendant's negligence has prevented him from working to that level of employability. 71Whilst Dr Dalton deferred to psychiatric opinion, the weight of that opinion is that Mr Grewal is not so disabled psychiatrically that he cannot work or further that even in some sort of combination with his physical disabilities, he cannot work. He has an adjustment disorder with depressed mood and a physical disability that is not totally incapacitating and is far from unemployable. 72There is no doubt that the plaintiff's injury has reduced his employability on the open market and has limited the nature of the work he may be otherwise able to obtain if he was so motivated. However the evidence that Mr Grewal has made a reasonable effort to obtain work and mitigate his damages in that regard is sadly lacking. As to why his employment was terminated is not a matter about which there is any conclusive evidence. The fact that he was upset and disgruntled by that dismissal is not something that can be attributed to the defendant's actions. Damages:- 73The plaintiff's calculation of economic loss is based on a figure of $800 nett per week. The defendant's allowance for FEL was a figure of $65,000.00. This represents, on my calculation, an allowance for the future of about $110 per week which is, in my view, as unrealistic as the plaintiff's figure. 74I do not accept that he is basically unemployable, but I do accept that he has a diminished earning capacity because of his knee injury. I accept the defendant's calculation of past economic loss to 9 Dec 2010 as being $95,593.00. Thereafter and to date and continuing I allow the sum of $350 pw as being the monetary difference between what in my view he would have earned and what he should be able to earn being partially incapacitated. For past economic loss that comes to a figure of $43,400.00 in addition to the above figure making a total PEL of $138,993.00. That figure has not been arrived at as a compromise between the suggested plaintiff's figure and the suggested defendant's figure, but reflects an attempt to rationalise widely divergent views and submissions as to employability. I allow $15,290 by way of superannuation loss at 11%. 75Mr Lidden SC argued that I should have little regard to rehabilitation employment figures produced by the defendant as far as the nature and variety of jobs that it was felt the plaintiff could undertake because there was no evidence as to what was actually involved, where these jobs might be and how many of them there were. However the fact is the plaintiff lives in Sydney, not some small country town where job finding could be considerably more difficult, particularly for manual labour with a disability. I found the rehabilitation/employment evidence to be of assistance but not necessarily determinative. 76All too often in cases like this, significant claims are made for economic loss and Attendant Care Services without there being much quality evidence to back such claims up. It was argued that what was said in Kallouf v Middis 2008 NSWCA 61 somehow imposed on a defendant the obligation of proving the availability of suitable work, the number of different types of work available and the nature of each particular job in so far as to how the plaintiff might be able to carry out that work. A proposition was alluded to in Rabay v Bristow [2005] NSWCA 199 that was commented on in Kallouf's case. 77In Kallouf v Middis, the court concluded inter alia that "In the final analysis, however, at common law the onus rests on the plaintiff to prove he is incapable of undertaking employment which medical evidence demonstrated he was capable of undertaking. ... This position is not, in our view, displaced by s 126 of the Act, albeit that s 126(1) imposes a requirement on the plaintiff to satisfy the Court "that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury". It is, of course, incumbent on the plaintiff in the first place to demonstrate lost earning capacity. In Moss [State of New South Wales v Moss [2000] NSWCA 133] Heydon JA (at [87]) said "where earning capacity has unquestionably been reduced but its extent is difficult to assess, even though no precise evidence of relevant earning rates is tendered, it is not open to the court to abandon the task and the want of evidence does not necessarily result in non-recovery of damages." His Honour went on to explain that because the tribunal of fact is making a discretionary judgment involving assessing the value of a chance, it is appropriate "to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility." The "trier of fact ... must achieve satisfaction that a fair award is being made", ... and .... must bear in mind that the amount awarded "ought to be a fair and reasonable compensation for the injuries received." In Brear, [Brear v James Hardie & Co Pty Ltd [2000] NSWCA 352] Mason P accepted ... that a court must do its best "with the available evidence in the necessarily impressionistic task of assessing damages for lost earning capacity" and that "absence of evidence about wage rates or working conditions in a particular vocation does not necessarily or usually deprive a tribunal of fact of the capacity to make a proper assessment". However ... no error of law emerged if the tribunal of fact was not persuaded "of financial loss, in the absence of evidence about the availability of relevant remunerative work in the area where the plaintiff lives or is likely to live." 78Applying those criteria to the present case, the medical and psychiatric evidence establishes on balance that the plaintiff does have a residual capacity for work. He has demonstrated that himself by working on light duties for nearly 12 months after the accident. His physical disabilities whilst not getting any better are not getting any worse. The defendant has had him assessed as being able to carry out a wide variety of occupations consistent with his limitations. 79I do not accept that a defendant has to, in effect, job hunt for a plaintiff. A plaintiff cannot as it were, lay back and allow his troubles to wash over him or her and make no genuine attempt to find work within capacity and to provide more assistance around the family home as Mr Grewal seems to have done, in my view, in the present case. Lack of motivation is not compensable. Mr Grewal is intelligent and has a reasonable command of English. It is not as if he being asked to be a radio announcer. 80I would assess the plaintiff's future economic loss as being $209,380 which incorporates a reduction of 15%. I allow $29,167 loss of superannuation at 13.93%. 81It is agreed that Mr Grewal has received $127,994 by way of workers compensation payments and that the past out of pocket expenses are $105,556. 82A claim is made for future out of pocket expenses in the sum of $100,000 without much being produced by way of substantiation or any submission as to how such a figure could be arrived at. The nature of the figure is suggestive of another ambit claim. Given what was said by Dr Giblin as to his future needs referred to above, a figure of $30,000 would be more than adequate to cover any contingent ongoing costs of physiotherapy, GP visits and arthroscopy. 83As far as Attendant Care Services are concerned, I am satisfied that neither the plaintiff or Ms Cheema have been able to satisfy me on balance that the statutory threshold for such services have been engaged except in regard to some paid lawn mowing, past and future, which comes to a figure of $15,828. Had there been some medical support for their contentions as to disability, the position may have been different but as it is, whilst recognising that some ACS is justified, it is such as to not reach the threshold. Orders:- 84According to my mathematics, on the above figures there should be a verdict for the plaintiff in the sum of $544,214. I note there is money outstanding to the WC Insurer and I grant the parties liberty within 14 days to present appropriate final orders for judgement, including any orders as to costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 May 2013