District Court New South Wales Medium Neutral Citation: Cupac v Cannone [2014] NSWDC 16 Hearing dates: 17/03/14 - 19/03/14 Decision date: 21 March 2014 Jurisdiction: Civil Before: Elkaim SC DCJ Decision: Judgment for the plaintiff in the sum of $266,361.82 Catchwords: Assessment of damages Legislation Cited: Motor Accidents Compensation Act 1999 Cases Cited: Fox v Wood (1981) 148 CLR 438 Category: Principal judgment Parties: Bore Cupac (Plaintiff) Robert Cannone (Defendant) Representation: P Frame (Plaintiff) J Guihot (Defendant) NSW Compensation Lawyers (Plaintiff) Moray & Agnew (Defendant) File Number(s): 2011/00018240 Publication restriction: No Judgment 1The plaintiff was born in 1966. He is now 47 years of age. On 13 February 2007 he was involved in a motor vehicle accident. He was a passenger in a vehicle which struck the defendant's vehicle. 2The plaintiff alleges that he was injured in the accident and that the injuries were caused by the negligence of the defendant. The defendant has admitted that he was negligent. He has not admitted that any of the injuries suffered by the plaintiff were caused by his negligence. 3The matter is governed by the Motor Accidents Compensation Act 1999 (the "MACA"). The plaintiff has claimed damages under the following heads: past and future medical expenses, past and future economic loss (including lost superannuation benefits) and future commercial care. The plaintiff is not entitled to non-economic loss because he has not exceeded the threshold set by Section 131 of the MACA. 4The plaintiff's case is that the injuries he suffered in the motor accident have continued to affect him to the present time and will do so well into the future. He said there has been very little improvement to any of his injuries since the accident. 5The defendant's case was that the plaintiff's damages are very limited and restricted to a closed period after the accident, certainly not extending beyond 2007. The defendant's approach was that the plaintiff had exaggerated and also been somewhat devious, for example seeking out a general practitioner who would be more lenient in providing off work certificates. The plaintiff's background 6The plaintiff was born in Croatia. He is married and has two children, now aged 10 and 14 respectively. The plaintiff attended school until he was 18 or 19 years of age. He learned some welding at school. After he left he spent about two years working on his home farm and doing some stone digging. He finally found a job doing welding but this was interrupted by the outbreak of hostilities in the former Yugoslavia. The plaintiff was called up for compulsory military service. He refused. He was placed in gaol. After some time he agreed to serve in the army but later left for Serbia as a refugee. He did some formwork in Serbia. 7There is a history to a Dr Dixon that refers to the plaintiff doing welding and construction work for six years in Libya. This seems to be a mistake. 8The plaintiff came to Australia in September 2001. He lived in the Liverpool area and has remained there to date. After beginning an English course the plaintiff found a job through a friend in the construction industry. There are many Serbians and Croatians living in that area and working in this industry. 9The plaintiff does not drive and has not done so since a tractor accident when he was 25 or 26 years of age. He nearly died in the accident and decided he did not wish to drive again. The plaintiff commenced working for Key F. Systems as a formwork labourer in August 2002 and then had a series of employments in the same industry until October 2006. He had a number of employers because his employment generally lasted for the duration of a particular development. 10In October 2006 the plaintiff commenced employment with ShoreForm Pty Ltd as a formwork labourer. This was heavy work in which he would lift up to 50 to 60 kg without assistance. He had no physical problems in carrying out the work and he intended to carry on in the construction industry, hoping to purchase a home and secure the future of his children. The accident 11The accident occurred on 13 February 2007. As already mentioned the plaintiff was a passenger in a motor vehicle. He was on his way home from work. The defendant's vehicle came out of a driveway into the path of the plaintiff's vehicle. There was effectively a head on collision into the side of the other vehicle. 12It was put to the plaintiff that the accident had been relatively minor. He disagreed. He said the vehicle in which he was travelling was a "write off". He was shown a picture of the damaged vehicle (Exhibit 3). The plaintiff later tendered further photographs of the vehicle (Exhibit C). Based on the photographs I could not conclude that the accident was "relatively minor". At the same time, the fact that the vehicle was a write off is almost meaningless. If it was an old vehicle it may not have taken much to write it off. After the accident 13The plaintiff began feeling pain about 20 minutes after the accident. He went home and took some pain killers. The following day the plaintiff attempted to work but was unable to do so. He could not tolerate the heavy tool belt that he was required to wear. His pain was in his neck, his lower back and his right shoulder. 14The plaintiff's 'family doctor' was Dr Tomasevic. His rooms were in Bigge Street, Liverpool. This is between one and two kilometres from the plaintiff's home. On 15 February 2007 the plaintiff consulted Dr Tomasevic and was given a certificate stating that he was unfit for work until 23 February 2007. 15The plaintiff returned to Dr Tomasevic the following day and then again on 22 February. On each occasion he complained of persisting pain. He returned to the doctor on 23 February and was given a further off work certificate until 9 March. The plaintiff agreed that at the final consultation the doctor told him that on the next occasion he was likely to give him a certificate under which he could return to work on suitable duties. 16The 23 February 2007 consultation was the last occasion on which the plaintiff saw Dr Tomasevic. 17The next doctor seen by the plaintiff was Dr Pukanic, on 13 March 2007. It was put to the plaintiff in the clearest terms that he changed general practitioners because Dr Pukanic was likely to be more lenient in providing 'off work' certificates. The plaintiff rejected this suggestion, saying that he had changed dotors because the waiting time with Dr Tomasevic could be as much as four or five hours and was generally at least three hours. This is not consistent with all of the consultation times in Dr Tomasevic's notes (Exhibit A). 18Dr Pukanic's rooms are in Bankstown so that the plaintiff either had to take a train or be given a lift to see the doctor. It was suggested to the plaintiff that it was illogical for him to change to see a doctor in Bankstown when he could see a doctor much closer to home. This suggestion was put in support of the allegation that there was an ulterior motive in seeing Dr Pukanic. 19I regard the allegation made, effectively against Dr Pukanic, that he was a "soft touch" for off work certificates as a serious allegation. Despite this Dr Pukanic was not required for cross-examination. I think he should have been if the allegation was to be seriously pursued. 20It was suggested to the plaintiff that Dr Pukanic did not examine him on his first consultation. This is inconsistent with the doctor's report of 14 April 2008. This is another reason why I was concerned that Dr Pukanic had not been required for cross-examination in the face of the allegations made against him. 21The plaintiff was cross-examined about pre-accident visits to Dr Tomasevic. It was put to him that on two of the visits the doctor had advised him to give up alcohol. I pointed out to the cross-examiner that I thought it plain from the notes that the doctor was referring to the plaintiff giving up cigarettes. The response was that the notes were ambiguous. Taken with the cover page of the notes I see no ambiguity. 22Another point that arose from the notes was that both in evidence in chief and initial cross-examination (until I raised the matter) the plaintiff's evidence was that he had only seen Dr Tomasevic twice after the accident. The notes clearly indicate, as I have set out above, that there were four occasions. I do not, however, think that anything turns on the number of consultations other than to note that the consultation on 22 February 2007 was at 10.52am, inconsistent with an allegation of the plaintiff waiting three or more hours to see the doctor. 23Returning to the plaintiff's evidence. He said that he returned to work on light duties, pursuant to a certificate from Dr Pukanic in May 2007. This was at the same work site, in Castle Hill, where he had been when the accident occurred. He said he was able to do the light work but the job came to an end after about four to six weeks. He had attended on six or seven occasions. 24The plaintiff returned to light duties in August 2007 and continued until December of the same year. His employer then asked him to work at a site in Brookvale. He said that he could not manage the travelling which was in the order of two hours per day. Because he did not drive he was restricted to using public transport. 25It was suggested to the plaintiff that he had fully recovered by December 2007. He denied this. 26The plaintiff was asked about a referral to a Dr Graham Mahony. He said he could not remember seeing a doctor with that name. Despite some references to this doctor in the medical reports I could not conclude that he had actually seen the plaintiff. 27Bringing matters up to the present the plaintiff said that all of his injuries remained the same. There had been no improvement at all. I understood him to say that his low back pain was worse when walking but that his neck was in constant pain with only the occasional day of "let up". The plaintiff said his right shoulder movement was restricted to about horizontal and he suffered pins and needles. He also had some sciatic pain into his legs from his low back. 28Under cross-examination the plaintiff said his injuries had improved by about 5% to 10% within six months of the accident. He denied any further improvement to date. 29The plaintiff said he was still receiving off work certificates restricting his time at work to 12 hours per week. He no longer needed the certificates for workers compensation and accordingly was attending Dr Pukanic less frequently. The certificates tendered do not go beyond June 2008. 30The plaintiff said that he was currently studying English. He had attended courses in 2009 and also in 2013. He was still not confident with his English. The plaintiff said he was anxious to work and had tried to find employment. He started in June 2008, initially looking for a job as a shop assistant or a traffic controller. He had also, over time, applied for a job as a cleaner in a butchery, a parking attendant in a hospital and as a mail sorter. He said he did not consider that he could work for 30 hours per week and he could see no sense in trying to obtain a driver's licence, firstly because he would have to sit for an extended period and secondly because he was still scared of driving. He had not made any attempt to seek help to overcome his fear of driving. 31It was suggested to the plaintiff that the workers compensation insurer had arranged a series of 12 physical exercise sessions in a gym to help with his work fitness. He said he had attended six sessions but the remainder did not occur due to the fault of the gym instructor. This is contradicted by Exhibit 1, which suggests there was a lack of interest on the plaintiff's part. 32The plaintiff agreed that he had applied for damages for industrial deafness when his work with Shore Form was terminated. No further evidence was elicited on this point so that I have treated it as irrelevant. The plaintiff denied that his interest in finding work had lessened after he received a lump sum payment of $100,000 flowing from disability provisions in his superannuation insurance policy. He said he had spent half the amount on the repayment of debts. 33The plaintiff last had physiotherapy in 2007. Since then his only treatment has been the taking of medication. 34The plaintiff said if he purchased a house he would not be able to do any lawn mowing or gardening and would only be capable of light maintenance work within the house. He would pay someone or get a friend to do the work that he could not do. 35Mr Milan Ardalic was interposed during the plaintiff's evidence. Mr Ardalic was put forward as a roughly comparable earner, it being conceded that it was likely he had earned more than the plaintiff would have but for the accident. Mr Ardalic is an experienced formworker, now classified as a CW3. This classification required significantly more skill than a CW1. He was currently taking home $1,900 per week but this included as much overtime as he could work. 36Mr Ardalic had worked with the plaintiff at Form Brace in 2004. He said they had worked together for about a year. The plaintiff in fact had worked at Form Brace from 14 April 2004 to 25 October 2004, about six months. 37In examination in chief Mr Ardalic described himself as a friend of the plaintiff, although he did not see him socially very much. He said he had only seen him a couple of times since the accident. He had complained of pain. 38Under cross-examination, it was revealed that Mr Ardalic was in fact the plaintiff's brother-in-law. He said he did not know the particulars of the plaintiff's job seeking and the plaintiff had not asked him for help to find work. He went on to "guarantee" that the plaintiff had not worked since the accident. This is, of course, contradicted by the plaintiff's own evidence and by the unlikelihood of Mr Ardalic being able to give such a surety when he had only seen the plaintiff about twice since the accident. 39I found Mr Ardalic to be a most unsatisfactory witness. I suspect he has seen the plaintiff a good deal more than on two occasions and that he gave his evidence in the hope of assisting the plaintiff's case. While I accept that in the broadest terms he might be regarded as a comparable wage earner, this is only because both he and the plaintiff have been engaged in formwork. The differences in classification and acceptance of over time make reference to Mr Ardalic's wages of little help. 40The plaintiff's wife gave evidence. She was also not of great assistance, although perhaps for less obvious reasons than Mr Ardalic. She described the plaintiff as a happy man before the accident. He loved to work. Since the accident he had complained about his back, shoulders, leg and neck. She was certain the complaints were about both shoulders and not just the right shoulder. She did not think he was getting better and he was now nervous and agitated towards his family. He was no longer happy. 41The impression I had from her evidence was that the plaintiff did not start looking for work until required to do so by Centrelink. This is inconsistent with the plaintiff's evidence but is based only on impression. I could not conclude that he had not looked for work at an earlier time. Mrs Cupac agreed that there had been a period prior to the accident when the plaintiff had not worked for about three months. I do not see any significance in that fact. It is clear that he generally worked with short periods between different employers. Expert medical material 42I will start this section by noting that the plaintiff's claim was for over a $1m. The defendant said the case was worth less than the workers compensation received by the plaintiff, about $77,000 (Exhibit K). 43Both sides tendered a good deal of medical material. No doctors were called to explain their views or to be cross-examined. This was against a background where the medical opinion (with some exceptions) fell into camps that were plainly opposed. Doctors on one side said there was a lot wrong with the plaintiff. Doctors on the other side said there was nothing wrong with him, although there may have been for about 12 weeks. Both sets of doctors had seen the same scan reports and conducted similar physical examinations of the plaintiff. The defendant's doctors said there were short-lived soft tissue injuries. The plaintiff's advisers found objective signs of continuing injury. The exceptions I have referred to are the doctors who advised for the Medical Assessment Service (MAS). 44Dr Pukanic first saw the plaintiff on 13 March 2007. His first report is dated 14 April 2008. Dr Pukanic thought that the plaintiff was capable of "a very light duty job" and gave him medical certificates to that effect. I should add here that there is absolutely no evidence upon which I could conclude that Dr Pukanic was involved in providing off work certificates when they were not justified. This is not to say, however, that the justification did not come from a history provided by the plaintiff or an exaggeration of his ability on examination. However, on examination, Dr Pukanic did identify spasm in the lower back muscles. 45The second report from Dr Pukanic is dated 10 April 2011. Contrary to the defendant's submissions he talks about seeing the plaintiff "approximately once a month ...". He also refers to the plaintiff being referred to a psychiatrist, Dr Stevenson. There is no report from this doctor nor any other psychiatrist or psychologist. This is important because it was submitted by the plaintiff that if I did not accept his complaints as having a physical origin there was still room for them to have been influenced by his mental state. 46The final report from Dr Pukanic is dated 21 March 2013. The doctor suggests 10 hours a week for the next 10 years of handyman and commercial assistance. In my view this is entirely unjustified. 47Exhibit J comprises 26 Workcover Medical Certificates. The last is dated 13 June 2008. I had understood the plaintiff to say he was still receiving certificates but this does not seem to be the case. The last certificates permit the plaintiff to work 4 hours per day for 3 days per week. In his final report Dr Pukanic has reduced the prescription down to 2 hours per day. 48Dr Pukanic referred the plaintiff to Dr Giblin, an orthopaedic surgeon. Dr Giblin first saw the plaintiff on 12 June 2007. He conducted an examination and noted, "the most obvious finding was that the right ankle jerks were definitely depressed to repeated testing. The right shoulder appeared to have some rotator cuff problems". 49In a possibly early indication of Dr Giblin having some concerns about the plaintiff's presentation he refers to "a moderate degree of widespread cogwheel rigidity" on examination. 50Dr Giblin sent the plaintiff for MRI scanning of his neck, low back and right shoulder. 51Dr Giblin reported on the scan findings in a letter to an insurer on 7 August 2007. He said the low back scan showed "widespread disc desiccation, some minor disc protrusions ...". In respect of the neck he said that the scan shows "that the spinal canal is starting to tighten up especially at C5/6, and on the left side, there is some possible impingement on the nerve, but of course there are no symptoms on the left arm". In respect of the right shoulder Dr Giblin said the scan "shows some minor changes involving the rotator cuff and a bit of fluid into the top of the biceps tendon sheath ...". Dr Giblin repeated, in respect of each of the areas that were scanned, that the results showed "nothing surgical or sinister". Dr Giblin recommended symptomatic treatment only and advised the plaintiff "to co-operate with the rehabilitation services and attempt a return to suitable duties". Exhibit 1 suggests that the plaintiff did not co-operate as advised. 52Although Dr Giblin said that the plaintiff's prognosis was not "without some possible reservations" he returned the plaintiff to the care of his general practitioner. At this stage I think it clear that Dr Giblin envisaged a gradual return to work and no need for him to see the plaintiff again. 53On 23 January 2008 Dr Giblin wrote to the plaintiff's solicitors providing a more detailed report than he had to the insurer. He remained of the view that treatment should be symptomatic and again repeated the need for vocational rehabilitation. Despite his report being generally positive, Dr Giblin concluded that under the AMA Guidelines (4th edition) the plaintiff had a 17% whole person impairment, which was permanent. 54Also in this report Dr Giblin returned to his earlier observation of cogwheel rigidity and said it was "a manifestation of underlying stress and anxiety notwithstanding any other inorganic factors". Emphasising what I read as some doubts about the specific cause of the plaintiff's injuries, Dr Giblin went on: "However, given the radiological findings as noted on the scans in the body of this report, I view his symptoms as having a degree of organic contribution, from the subject accident". 55I think Dr Giblin is saying that while there is some organic component in the plaintiff's presentation, there are also substantial other factors at work. 56Dr Giblin's reservations are consistent with the findings of Dr McGroder who advised on behalf of the MAS. On page 5 of his report he said: "It was noted that during his history taking and examination that he held his neck rigidly and kept his right arm by his side. He was noted to sit comfortably otherwise throughout a prolonged history taking. He removed his clothes slowly and with difficulty." 57In his conclusions Dr McGroder said this: "Consistency of Presentation My impression was that there was some self limitation of range of movement of the spine and the shoulder. With particular regard to the shoulder I reinforced to Mr Cupac that it was not medically consistent with these investigation findings that he would have such a restricted range of movement but he insisted that it was pain that restricted his range of movement. This did not change his response on subsequent testing." 58On 28 April 2008 Dr Giblin wrote to the plaintiff's solicitors commenting on a number of reports that had been sent to him. One of these is a report from Dr Hitchen dated 29 November 2007. I think the most significant of Dr Giblin's observations is the following: "I agree with Dr Hitchen 19th November 2007 that Mr Cupac is physically fit to return to his pre-injury duties, but there does need to be restriction on the basis of common sense in relation to avoiding at risk clinical situations, producing further injury to the low back and neck." 59Notably Dr Giblin agreed with Dr Hitchen that travel concessions "do not necessarily apply". 60Dr Giblin commented on the plaintiff's presentation. He said: "In point 12, his presentation is described as being embellished, and whilst this may be an interpretation from the point of view of Australian culture, it would be reasonable to allow for non-Australian expressions with the flexibility that there may be an associated psychological injury." 61As already noted there is no report from a mental health practitioner. I also have difficulty with the concept of levels of exaggeration being influenced by a person's place of birth. I read Dr Giblin as intimating that there is a marked element of exaggeration in the plaintiff's presentation. He does however maintain his view that there is an organic basis present. 62At the end of his report Dr Giblin talks about the "fine medical traditions" of open discussion between colleagues. This would have been an appropriate case for the parties to have organised concurrent evidence between the experts to allow the court to have the benefit of discussion between the doctors. 63In his report of 22 September 2008 Dr Giblin deals with the suggestion that the accident was unlikely to have caused any right shoulder problems. He points out that the plaintiff using the dashboard as a leverage point could have resulted in "the transfer of forces up the shoulder such that the head of the humerus impacts upon the soft tissues immediately adjacent to the under surface of the acromion.". He then goes on to say that damage to the underlying tissues could have produced "focal impingement and pain". 64Dr Giblin's final report (in fact there are two reports) is dated 9 February 2011. He had seen the plaintiff the previous day. The reports were prepared for the purposes of the permanent disability claim. The plaintiff complained, in order of severity, of low back pain radiating into his legs, right shoulder pain radiating into his right upper arm and neck pain. My impression of the plaintiff's oral evidence was that the severity of the symptoms was in the reverse order to that given by Dr Giblin. 65Although Dr Giblin reported in 2011 he has not treated the plaintiff since 2008. 66Like Dr Giblin, Dr Hitchen is also an orthopaedic surgeon. The defendant relied on one report from him dated 19 November 2007. It is the basis upon which it was put to the plaintiff that he had fully recovered by this date. Dr Hitchen reported to the workers compensation insurer. He was apparently not asked by the defendant to provide any up to date reports. Rather the defendant relied on a series of reports from Dr Pierides, an occupational physician. 67Dr Hitchen was firmly of the view that by the time he saw the plaintiff there was nothing wrong with him and there was no reason why he could not return to fulltime work of the type he had performed prior to the accident. His opinion seems to be based on an impression of gross exaggeration during examination and an assessment of the various MRI scans as revealing little more than age consistent degenerative change. Dr Hitchen could not understand how the plaintiff could have hurt his shoulder in the manner alleged. 68I can understand a doctor coming to a view based on his observations during examination. Unfortunately Dr Hitchen seems to have expanded the basis for his final opinion to matters that I think are quite irrelevant. On page 4 of his report he says this: "There is a significant yellow flag in his management in that he saw a solicitor within 10 days of the accident. This implies a poor prognosis. When coupled with the fact that he does not believe he will ever return to 'normal' work, it is likely he will attempt to establish a case that his injuries have been so bad that he could never work again. Hence, in his quest for compensation, it is not in his financial interest to appear to recover." 69I have two problems with the above quoted passage: (a)It is well outside the doctor's expertise to conclude that a poor prognosis stems from seeing a solicitor 10 days after an accident. (b)I do not see it as a point of criticism that the plaintiff did consult with a solicitor at such an early stage. In the current regime of assorted time limits enabling a claim to be made, the early consultation with a solicitor is to be applauded rather than condemned. 70I think the introduction of non-medical matters into Dr Hitchen's opinion imposes significant reservations upon it. I therefore find it difficult to accept the doctor's opinion that "any injury sustained to the neck, lower back and right shoulder girdle was extremely minor and certainly would have resolved within days". 71The embellishment impression is taken up by Dr Pierides. He first saw the plaintiff on 31 January 2008. He also had difficulties understanding how the plaintiff injured his right shoulder and "how he has any significant ongoing disability as a result of the subject accident in the absence of any changes on his investigations". On his examination he said the plaintiff presented as "stiff and unnatural and the range of movement of the right shoulder was not consistent with the absence of clinical findings and a normal MRI scan". 72Dr Pierides at that stage thought the plaintiff would have recovered within 12 weeks. 73Dr Pierides next saw the plaintiff on 24 March 2009. Dr Pierides thought that although the plaintiff was overweight his overall condition was inconsistent with the lack of activity that he described. His opinion of a 12 week full recovery remained unchanged. He said that the plaintiff had adopted "the sick role, but not because of any physical complaint". He continued "for whatever reason, he either genuinely believes he is disabled or is displaying himself as disabled". 74On 5 October 2010 Dr Pierides wrote to the defendant solicitors commenting on MRI scans that had been performed on 15 September 2009. In this report he extended his recovery period from 12 to 24 weeks. He now conceded a mild strain in the shoulder. Whatever injury there was in the shoulder he did not think it would prevent the plaintiff from undertaking his usual work. 75Dr Pierides also amended his view of the plaintiff's attitude. He no longer allowed for a subconscious adoption of the sick role, rather there was deliberate restriction of movements. 76Dr Pierides saw the plaintiff again on 2 November 2011. He did not change his mind. He said the plaintiff's complaints were not reasonable and there was no significant pathology in any of the scans. He returned to a 12 week recovery period. 77Dr Pierides last saw the plaintiff on 22 May 2013. He thought it was "likely that he was voluntarily restricting his movements". He could see no relationship between the plaintiff's complaints and the accident. 78Returning to the plaintiff's medical material, he was sent by his solicitors to Dr Matalani, an occupational physician, on 20 March 2008. Dr Matalani did not think the plaintiff was exaggerating but he did think the injuries were all soft tissue in nature. He thought that his condition was stabilised and unlikely to change very much in the future. He thought there should be a number of restrictions placed on his capacity to work. 79In his second report, dated 10 December 2008, Dr Matalani deals with the assertion that the plaintiff could not have injured his right shoulder in the accident. He justifies the mechanism of injury on the basis of the plaintiff's history of his right hand hitting the dashboard. As I read his report his opinion in this regard is similar to that of Dr Giblin. Dr Matalani thought that there was "a likelihood of an intrinsic pathology of the right shoulder joint ...". 80Dr Matalani saw the plaintiff again on 6 September 2010. He now had available to him more up to date scans. His opinion remained the same, namely soft tissue injuries to the neck and back. However, in respect of the right shoulder Dr Matalani observed: "His latest MRI indicates a partial tear of the distal supraspinatus tendon and possible tendonitis". 81Dr Matalani had his final consultation with the plaintiff on 5 July 2012. On this occasion Dr Matalani took a history of pain in the neck "most of the time" and "constant pain in the lower back". This is inconsistent with the impression I had from the plaintiff's oral evidence which led me to understand that the pain in the neck was almost constant but that in the back was more intermittent and mostly occurred when the plaintiff was walking. In respect of the right shoulder, Dr Matalani said the imaging suggested bursitis. Dr Matalani was of the opinion that the plaintiff could not return to his pre-injury work and that any future work required a number of restrictions. He suggested a regime of treatment and rehabilitation. 82Perhaps the most consistent support for the plaintiff comes from Dr Dixon, an orthopaedic surgeon. His first report is dated 2 April 2008. He had seen the plaintiff three days before the report was prepared. At this stage Dr Dixon described the plaintiff's injuries to the three relevant parts of his body as "strains". He thought the plaintiff was unfit for his normal work and he had a guarded prognosis. He envisaged a future regime of medication and injections. He also thought he was a candidate for surgery, namely an L5/S1 microdisectomy. 83Dr Dixon's next report is dated 16 September 2008 in which he is asked to comment on a MAS assessment report dated 8 August 2008. The report is mainly devoted to the question of the plaintiff's right shoulder. Dr Dixon could see no difficulty with the mechanism of injury and said the MRI suggested "subacromial bursitis with the probability of impingement from a tight one acromian ...". 84In a report dated 3 November 2008 Dr Dixon deals with the plaintiff's capacity for household chores. He lists a number of matters the plaintiff cannot do and concludes that he needs four hours of domestic assistance a week together with occasional house maintenance. I find Dr Dixon's formula to be quite unreasonable. He seems to suggest the plaintiff cannot vacuum and change light bulbs. Although the claim for past domestic assistance was abandoned because of the MACA thresholds, I cannot see any justification for that level of assistance. 85Dr Dixon next saw the plaintiff on 15 September 2010 and wrote a report five days later. Dr Dixon was provided with reports from Dr Pierides and Dr Hitchen but he does not directly comment on them. 86Dr Dixon had no difficulty with the plaintiff's presentation, observing that it was "consistent". Dr Dixon's opinion remained the same and he foresaw problems for the plaintiff in returning to work. He once again raised the probability of future low back surgery. 87Dr Dixon next saw the plaintiff on 31 October 2012 and wrote a report on 5 November. His report is really a confirmation of his earlier opinions. My reservations about Dr Dixon's reports stem from my conclusion that even with some organic basis for the plaintiff's problems, they are dominated by his exaggeration. 88The plaintiff's specialist treatment seems to have ended with Dr Giblin in 2008. He has, however, continued to see Dr Pukanic on a regular basis. I note here that I think the defendant's reliance on Exhibit 4 to indicate the amount of attendances on Dr Pukanic which are related to the accident is misplaced. For whatever reason the document is misleading. This is highlighted by the fact that some entries are clearly unrelated to the accident but more importantly some clearly related attendances are missing. The most obvious is Dr Tomasevic. There is one entry for him but the plaintiff saw him four times after the accident about his injuries. I place no reliance on Exhibit 4. I also place little reliance on Exhibit H, the handwritten notes of Dr Pukanic. While some words can be identified, I simply cannot reliably read them as a whole. 89I think the best I can do is accept that the plaintiff saw Dr Pukanic quite frequently up to 2011 and since then on about a quarterly basis. 90The plaintiff's solicitors referred him to Dr Ting, a vocational specialist. He provided three reports. The first two are in Exhibit D. The third is in Exhibit A and is dated 30 June 2012. At page 9 of the 2012 report there is a useful summary of the plaintiff's tax returns showing his gross wages and taxable income for the years 2003 through to 2007. The last full year prior to the accident is 2006. On my calculation a taxable income of $61,883 produces a net weekly income of about $885. 91Dr Ting thought the plaintiff was able to perform sedentary work for three hours per day, five days per week in selective employments. At page 15 of his report he sets out a number of restrictions and then, on the next page, suggests some job options. These are a crossing supervisor and a container filler and packaging. On page 19 of the report Dr Ting sets out some barriers to employment including factors such as the plaintiff's age, his inability to speak English and his long unemployment period. 92Dr Ting makes this statement: "Had he not sustained the injuries, he would have been able to work at full capacity including working overtime to receive penalties until his chosen retirement age". I find this statement very difficult to accept. The plaintiff was working in a very labour intensive job requiring exceptionally heavy lifting, up to 60kg on a daily basis. He already had degenerative changes in his spine and it seems most unlikely that he could have maintained such heavy employment through to age 65. 93The defendant criticised Dr Ting for taking a "pseudo-scientific" approach to the calculation of the plaintiff's retained earning capacity. An example of this approach can be found in the 2010 report at page 23 with particular reference to note 13. This is another example where strident criticism is made apparently without recognition of the doctor's entitlement to defend his methodology. I think Dr Ting should have been required for cross-examination. 94Having made this observation I nevertheless do not accept Dr Ting's opinions for the simple reason, as will be seen below, that I do not accept the level of impairment described by the plaintiff to the doctor. 95I have not dealt with every one of the many medical reports that I have been provided and have read. What I have attempted to do is to illustrate the pattern of opinion respectively expressed by each side. I have already highlighted the quandary in this case; namely, the untested extremes of medical opinion between the two sides. Discussion 96The defendant has not put forward any independent evidence such as surveillance material to assist in favouring his case. The defendant's approach has been that I should not believe the plaintiff and if I do not, then I will prefer the defendant's doctors' opinions to those of the plaintiff's doctors. 97The plaintiff gave evidence through an interpreter so that it was very difficult to form any reliable assessment of his demeanour. He did seem to sit relatively comfortably in the witness box until that fact was put to him when he said that he would have liked to stand. The particular exchange did not reflect well on the plaintiff; however, that is the only matter that I could draw from his presence in the witness box as assisting the defendant's case. 98Fundamentally, however, I found it necessary to remind myself that the plaintiff must prove his case. Putting aside demeanour there were a number of features in his case that I found difficult to accept. Other than Dr Dixon all of the medical opinions suggest soft tissue injury with no need for surgery. There has been minimal treatment other than continued medication. The early optimism displayed by Dr Tomasevic and Dr Giblin has not translated, for any apparent reason, into reality. I do not accept that the only improvement in all of the plaintiff's areas of injury was about 5 to 10% in the first 6 months. It seems quite incredible that there has not been improvement in even one area of injury over 7 years. 99I think Exhibit 1 shows that the plaintiff was not particularly interested in rehabilitation. 100I have significant doubts about the plaintiff's evidence concerning looking for employment. I was most unconvinced by his evidence that he did not start looking for work until June 2008 because this was when he found out his employment had been terminated. Even if he did not receive the letter (or understand it), which is Exhibit 6, his workers compensation payments had ceased in December 2007 and one wonders how he could have continued through to June 2008 under the belief that he remained employed. He was not yet on Centrelink benefits and therefore was receiving no wage (either by way of pension or workers compensation). I simply do not accept that the plaintiff believed he remained employed during this period. 101I also think his attempts to find work have been inconsequential and indicative of a failure to mitigate his loss. 102In addition, the evidence of Mr Ardilac was, I think, designed to assist the plaintiff and to conceal matters that were probably well known by his brother-in-law. 103The other side of the argument is that the plaintiff does have medical support which in many respects is preferable to that provided by the defendant, in particular from Dr Hitchen. Dr Pukanic has continued to see the plaintiff and write reports supporting him. There are also the objective signs identified by Dr Pukanic (eg. spasms) and Dr Giblin (eg. absence of left foot responses). Dr Giblin says his injuries are permanent. 104The conclusion I have reached is that I should take something of a middle road. I think the plaintiff has established that he suffered soft tissue injuries to his neck, back and right shoulder in the accident and that as a result of these injuries he has continued to have a diminished earning capacity to the present time. The extent of this diminution, however, has been reducing over time so that it is now relatively small, although likely to continue for some time. Damages 105The plaintiff asked for $401,168 for past economic loss. This was based on the plaintiff's 2006 earnings of $68,427 ($1,025 per week net) but increased at 2% per annum to arrive at a current net wage loss of $1,177 per week. The weekly losses were averaged at $1,101 and extended for 368 weeks. The total was reduced by $4,000 to reflect the plaintiff's earnings during the balance of 2007 following the accident. The only figure agreed by the defendant was the reduction of $4,000. 106I have the following difficulties with the plaintiff's approach: (a)The figure of $68,427 is the plaintiff's gross income in the 2006 financial year. The tax returns, however, make it clear that the plaintiff's taxable income was $61,883 which, as I have already stated, produces a net weekly income of $885. The defendant was, however, prepared to concede a weekly wage at the time of the accident of $975 net. I will adopt that figure. (b)Other than for the $4,000 received by the plaintiff, his figures allow for no other deduction in respect of any retained capacity. 107In my view, the plaintiff has had a substantial retained working capacity that has gradually increased to the present time. To the extent that it may be said that the plaintiff, even with a retained capacity, has been unable to find employment I refer to what I have said above in respect of my conclusion that he has failed to mitigate his loss. 108It is very difficult to calibrate the plaintiff's gradually reducing lack of capacity. There is no scientific, or even pseudo-scientific, formula I can apply. My intent is to achieve a reflection of my assessment of a gradually improving plaintiff, reaching the present with a small level of incapacity. I think, doing the best I can, and noting that there have been 370 weeks since the accident, that I should approach past economic loss on the following basis: (a)13 February 2007 to 1 January 2008: 46 weeks x 975 = $44,850. (b)2 January 2008 to 1 January 2010: 104 weeks x 650 = $67,600. (c)2 January 2010 to 1 January 2012: 104 weeks x 450 = $46,800. (d)2 January 2012 to 1 January 2014: 104 weeks x 250 = $26,000. (e)2 January 2014 to 20 March 2014: 12 weeks x 150 = $1,800. 109The total of the above calculations is $187,050, which must be reduced by the wages received of $4,000, making past economic loss $183,050. 110It was agreed that the plaintiff would be entitled to lost superannuation benefits calculated at 11% of the lost net earnings. This is $20,135.50. 111The plaintiff has claimed 'Fox v Wood' damages, which it says should be assessed at 20% of the workers compensation weekly payments received, namely $42,834. The defendant had no difficulty with the figures or the percentage but rather submitted that there was no entitlement to this head of damages because the motor accident insurer had repaid all of the plaintiff's workers compensation payments to the workers compensation insurer. The entitlement to this head of damages is clearly set out in the decision of the Chief Justice and of Brennan J in Fox v Wood (1981) 148 CLR 438. I can see no basis upon which a distinction should be drawn, once the entitlement has been established, between whether the workers compensation insurer receives its money back via the motor accident insurer or directly from the plaintiff. There is nothing in this case that I can see that distinguishes it from the normal principles. Accordingly I allow the Fox v Wood claim of 20% of $42,834, which is $8,566.80 112The next head of damages to be considered is future economic loss. The plaintiff's claim is for $807 per week for 20 years less vicissitudes of 15%. The result is $457,117. The defendant has not allowed for any future economic loss because it was submitted that all economic loss came to an end in December 2007. 113I have already found that the plaintiff has, at the present, a continual incapacity equivalent to $150 per week. Accepting that the plaintiff still has some degree of incapacity and recognising the heavy employment which he performed prior to the accident and his limitations in securing new employment, I think this $150 should continue for a further, say, 15 years. 114For purposes of Section 126 of the MACA I am satisfied that but for the accident the plaintiff would have continued to work as a form worker or in some similar heavy labouring occupation, for the balance of his working life but that he would have been, as a result of the heavy nature of the work, exposed to more than the usual degree of vicissitudes, which I would assess at 20%. 115On the 5% tables, $150 per week for 15 years less 20% is $66,600. 116Lost superannuation benefits on future economic loss are to be assessed at 14%. This produces a figure of $9,324. 117Past out of pocket expenses were agreed at $35,328.11; however, the defendant submitted that the plaintiff should only receive $26,127.11 because the difference between the two amounts was incurred after December 2007 by which time the plaintiff had fully recovered. On my findings the plaintiff had not recovered by this time and he still has a degree of remaining injury. Accordingly I allow the whole of the amount claimed. 118The plaintiff's claim for future medical expenses is $20,097 which includes regular visits to a general practitioner, an annual visit to a specialist, continuing weekly medication and occasional physiotherapy, gym and rehabilitation expenses. The defendant submitted there should be no allowance at all. 119The plaintiff is currently seeing a general practitioner about every three months and he takes regular pain killing medication. On the same basis as my economic loss findings I think he should be entitled to the expenses of seeing the general practitioner four times a year for 15 years and also be allowed, say $20 per month, in medication expenses for the same period. The weekly expense is $8.84. Taken over 15 years on the 5% tables the result is $4,906.20. 120The plaintiff has claimed commercial care of $119,190 for future domestic, gardening and handyman expenses. This is based on three hours per week for each respective service at varying rates totalling $145 per week and extended for 30 years. The defendant submitted that there should be no allowance at all. 121In my view, the plaintiff has no current need for any of the services that are listed. He has not bought a house and the possibility that he will do so is speculative. It must, however, be recognised that over the next 15 years the possibility of him needing some assistance is feasible, especially in regard to his lower back problems. I think a very small allowance of $3,000 to cater for the possibility should be allowed. 122A summary of the damages that I have allowed is as follows: Past economic loss $183,050.00 Past superannuation benefits $20,135.50 Fox v Wood $8,566.80 Future economic loss $66,600.00 Future superannuation benefits $9,324.00 Out of pocket expenses $35,328.11 Future medical expenses $4,906.20 Future commercial assistance $3,000.00 Total $330,910.61 123The parties agreed that the damages total sum should be reduced by the amount of the payments made to the workers compensation insurer, namely $64,548.79. The plaintiff's consent was given without prejudice to any costs arguments that might be affected by the agreement. The result is a final figure of $266,361.82. 124There will be judgment for the plaintiff in the sum of $266,361.82. I will hear the parties on 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: 21 March 2014