District Court New South Wales Medium Neutral Citation: Stuart Douglas Parker v Charles Youmaran [2015] NSWDC 199 Hearing dates: 20, 21, 22 and 23 July 2015;Plaintiff's further written submissions 27 July 2015;Defendant's written submissions in reply 6 August 2015. Date of orders: 11 September 2015 Decision date: 11 September 2015 Jurisdiction: Civil Before: Hatzistergos DCJ Decision: Verdict for the Plaintiff Catchwords: TORTS – negligence – personal injury – motor vehicle accident – reasonable care – contributory negligence – brain injury– damages Legislation Cited: Civil Liability Act 2002 (NSW) s 15B Evidence Act 1995 (NSW) ss 36 and 60 Motor Accidents Compensation Act 1999 (NSW) ss 126 and 141B Cases Cited: Davis v Swift [2014] NSWCA 458 Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 Macarthur District Motor Cycle Sportsman Inc v Ardizzone [2004] NSWCA 145 Mason v Demasi [2009] NSWCA 227 McConachie (t/as Willancorah Pastoral Co) v Pack [2004] NSWCA 148 Sampco Pty Ltd v Wurth [2015] NSWCA 117 Verryt v Schoupp [2015] NSWCA 128 Wade and Ors v Allsop (1976) 10 ALR 353 Category: Principal judgment Parties: Stuart Douglas Parker (Plaintiff) Charles Youmaran (Defendant) Representation: Counsel: Mr S E McCarthy (Plaintiff) Mr A Renshaw (Defendant) Solicitors: Shine Lawyers (Plaintiff) Hall & Wilcox (Defendant) File Number(s): 2014/00046365 Publication restriction: Nil Judgment Introduction 1. On the morning of 1 April 2011 the Plaintiff, Stuart Parker, was en route from his home at River Street, Earlwood in New South Wales to the offices of his employer, AIMIA, at Pyrmont. It was a familiar route riding his Suzuki SV 1000 motorcycle, along Hamilton Avenue, Collingwood Avenue, before heading in an easterly direction along Homer Street. Around 8 am, at a point some three to five hundred metres into his travels along Homer Street, just past the intersection with Watkin Avenue, Mr Parker's motorcycle collided with the Defendant's vehicle, being a 2006 Peugeot 307 Hatchback. The Defendant's vehicle had just exited a driveway on the south side of Homer Street and was seeking to make a right hand turn when the collision occurred. 2. The Defendant has admitted breach of duty of care but has alleged contributory negligence. The nature and extent of the Plaintiff's injuries and quantum of damages are also in dispute. Liability 1. It is not in issue that Homer Street has two lanes of traffic to the east and two lanes to the west. At the time of the accident it was described as busy with traffic. The speed limit was 50 kilometres per hour. [1] The Plaintiff had no recollection of the actual collision. He did acknowledge having a general practice of adhering to speed limits. The evidence disclosed that he had two previous speeding infringements (the last in 2002) incurred in 28 years of driving. I do not regard these as relevant in the circumstances. 2. The Defendant's evidence was that he resided at his unit in Homer Street for nine months prior to the accident. He was heading for work on the morning in question and to enter Homer Street, drove up a long driveway which was adjacent to the block of units where he resided. He stated that it was thirty to forty metres in length. According to his evidence, he stated:- "As I was driving towards the driveway I had a glance to my left as I probably always do, to the right and just as I proceeded to drive, that's when my wife yelled out." [2] 1. There were vehicles parked to Mr Youmaran's left. [3] He stated that he believed that there was a ute with a big cage that was always there. [4] He described the cage as a large cage with a lot of junk in it. 2. Thereafter the following exchange took place:- "Q. So when you were going forward you had on your left his ute with the cage on it and where in relation to that ute did you look to your left, before it or after it, as you entered the road? A. Before it. Q. Did you look after it or not? A. I can't recall, I'm sorry. Q. Then what happened? A. That's when my wife screamed out and we - I glanced at her left and I saw Mr Parker heading towards me with a motorbike." [5] 1. The Defendant stated that he always had to stop as there was a wall there before he hit the road. Accordingly he stopped to glance to the left. First, he could not say how far down the road he was when he glanced to the left. When asked to give an estimate he stated:- "I mean, probably thirty metres, maybe to the left, twenty metres, that these cars obstructing constantly. At that time of the morning there is always cars parked on the left hand side." [6] 1. When asked about his speed of travel, the Defendant stated that it was probably five kilometres per hour but, just as he was turning to the right, maybe a bit faster. [7] 2. In cross-examination, the Defendant was taken to photographs of the scene. [8] Thereafter the following sequence of questions and answers is recorded:- "Q. If I could just ask you to go back to photograph 10, please. A. Yeah, I'm there. Q. Do you accept that if you had slowly nudged your car out a couple of metres further before making a right-hand turn, you would have enjoyed a view very similar to that shown in the photograph? A. More than likely, yes. Q. I don't know how good your eyes are, but if you-- A. Not very good, but yeah. Q. Just do your best on this one. If you were to look to your left in that photograph, can you see the lights at Watkin Street, shown as really, just a small green ball? HIS HONOUR: Sorry, is this at photograph 10? MCCARTHY: Photograph 10, your Honour, yes. WITNESS: I can see a little green dot a fair bit away, yeah. MCCARTHY Q. You know the area. Are you aware that there is a set of lights in the approximate position of that dot, and it's at the intersection of Homer and Watkin? A. Correct. Q. So you accept this, don't you sir, that if you got your car into the position shown at photograph 10, you could have seen all the way down, perhaps beyond the intersection of Watkin Street? A. Yeah, correct. Q. That's a distance of about 150 metres? A. I guess so. Yeah. Q. Is that approximately right? A. Yeah. Q. What you could have done, sir, rather than adopting the course you did adopt on that day, was this, I suggest. You could have slowly manoeuvred your vehicle, nose first, into that position. I think you've already accepted that much. Is that correct? A. Mm. Q. The consequence of that at worst, would you accept, is that you might have been intruding into the westbound lane by a small amount? A. Correct. Q. That wouldn't have been a problem, would it, because there was no imminently oncoming traffic? A. Not much traffic, yeah. That's correct. Q. So that wouldn't have been a safety problem for yourself, would it? A. I guess not. Q. Even in the event that, having nudged forward, you found a car coming towards you and found yourself stranded, you could have simply just reversed back in your driveway, couldn't you? A. That's correct. Q. So there was no need at all, was there, for you to manoeuvre your car into the east-bound lane with the haste which you did, was there? A. Well, in hindsight, probably not, but— OBJECTION. FORM. QUESTION REPHRASED Q. There was nothing at all preventing yourself from having more than one look to the left, was there— A. No. Q. I withdraw that. Before you proceed north on the carriageway? A. No. Q. You accept, don't you, that if you looked more than once to the left you would have considerably increased the chances of seeing Mr Parker? A. Maybe, yes. Q. That just follows logically, doesn't it? A. I'm in – yes. Q. If you were in the position of the photographer in photograph 10 and Mr Parker was driving his motorcycle east bound on Homer Street, you would have definitely seen him, wouldn't you? A. I guess so, yes. Q. If you'd seen him, you obviously wouldn't have deliberately tried to hit him, would you? A. Of course not, no. Q. You would have done everything you could to avoid an accident? A. Correct. Q. That would have involved allowing him to safely pass before you then reconsidered your turning options? A. Correct. Q. You accept this, don't you, that if you'd taken those precautions, that is, the precaution of nosing out into the position in photograph 10 and remaining there until it was clear, then this accident could never have occurred? A. Yes, well, more than likely, I guess, yes. Q. I'm putting to you it's something a bit stronger than that. It simply couldn't have occurred, could it? A. Well, it depends on how fast he was going, I guess. Q. You don't know anything about that, do you? A. Exactly, I don't." [9] 1. I accept that the Defendant's view, as he exited the driveway, was partly obscured by parked vehicles to his left. This is demonstrated in photographs P2 and P3 of the report of Hall Technical dated 24 November 2011. [10] 2. The police sketch of the crash site showing the rest positions of the vehicles and the configuration of the street are displayed in Figure 1 on page 5 of Exhibit L. The passenger in the vehicle driven by the Defendant was not called to give evidence. Nevertheless the following is recorded in the report of Jamieson Foley Consulting Forensic Engineers [11] as being attributed to the passenger:- "At approximately 7:55am on Friday, 1 April 2011, my husband and I left our house to go to work. At the time my husband was driving our car which is a silver Peugeot bearing NSW (reg). I was seated in the front passenger's seat. As my husband drove out of our driveway he began to turn right into Homer Street so we could drive into the City. In the last moment of my husband completing the turn, I noticed a motorbike travelling towards us. I can't remember what lane the bike was in. Upon seeing the bike I said 'babes, babes' so I could get my husband's attention. I had seen the bike swerve to the left towards the footpath to try to avoid us but before I could say anything else the bike collided with the passenger side of our car. The bike collided without car on its side." 1. Mr Jamieson records calculations estimating an exposure time of the Defendant's vehicle of 2.7 seconds. [12] The Defendant's expert Mr Hall, in his report, discussed an estimated exposure time of 3.5 seconds. [13] However, based on the description provided to police [14] as well as the statement by the Defendant's wife referred to above, I am satisfied that the Defendant did not glance further to the left after departing, thus reducing exposure time to the level suggested by Mr Jamieson. [15] 2. Based on the traffic conditions accepted by both the Plaintiff and the Defendant at that time of the morning, it is unlikely that the Plaintiff would have travelled at a speed greater than 50km/hr. I also accept the evidence of Mr Jamieson that, taking into consideration the damage occasioned, as shown in appendix C to his report, and the rest position of both vehicles, which was close to the assumed impact area, the expected impact speed was about 35km/hr. [16] This is consistent with the evidence of Mr Hall. [17] 3. Mr Jamieson stated, in relation to Mr Hall's report the following:- "A report provided by the Defendants (the insurer of the Peugeot) was reviewed from Mr Chris Hall, MIE. Most of the material in Mr Hall's report was generalist in nature and agreed with. Similarly, most of the variables included in Mr Hall's report were agreed with, with him producing ranges of various estimates, including sighting distance and pre-braking speeds of the motorcycle. While the lower ends of these ranges were agreed with, it was considered that the upper ends of the ranges were probably unlikely, given: the expected nature of the peak traffic on the sub-arterial route, the witness statements, the vehicular damage, and the rest position of the vehicles. That is, by the time the motorcyclist braked, it was essentially a low speed collision with the motorcyclist falling to the ground with the motorcyclist being trapped under the machine. Given the sligh angular deviation of this road, combined with the parked traffic, the right-turning Peugeot driver effectively "turned blind". While such turns are not uncommon, particularly when vehicles are emerging from driveways, it is defensive driving practice for an emerging driver to expose the nose of the vehicle for some time within a lane in order to fully inform approaching drivers of their presence. In this instance, it is evidence that the Peugeot driver simply drove across the westbound lane, thus reducing his exposure time to a period shorter than the motorcyclist was able to stop." 1. The onus of establishing the contributory negligence rests with the Defendant. [18] 2. The relevant statutory provisions for determining contributory negligence were referred to in Davis v Swift [2014] NSWCA 458 by Meagher JA (with whom Leeming JA and Adamson J agreed). His Honour held:- [23] Section 138(1) of the MAC Act provides that the "common law and enacted law as to contributory negligence" apply to an award of damages in respect of a motor accident, except as provided by that section. The enacted law relevantly is the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) (LR Act), s 9 and the Civil Liability Act 2002 (NSW) (CL Act), ss 5R and 5S. Sections 138(2) and (3) vary the enacted law; the former by requiring findings of contributory negligence to be made in particular cases; and the latter by describing in more general terms the matters to which regard may be had when apportioning responsibility. [24] The starting point is s 9(1) which provides that if the claimant "suffers damage as the result partly of the claimant's failure to take reasonable care (contributory negligence) and partly of the wrong of any other person" the damages recoverable in respect of the wrong "are to be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage". That description of contributory negligence reflects the common law position that the claimant's lack of care must contribute to the occurrence of the injury or the nature or extent of it: Nance v British Columbia Electric Railway Co Ltd [1951] AC 601 at 611 in a passage cited with approval by the majority in Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1 at [21]. [25] The approach to the reduction of damages in accordance with the language of s 9(1) was described in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 at 494 as follows: The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man ... and of the relative importance of the acts of the parties in causing the damage .... It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance. [26] Section 138(3) is in different terms to s 9(1) and the other State provisions based on s 1(1) of the Law Reform (Contributory Negligence) Act 1945 (UK). Whereas those provisions require the Court when assessing what is "just and equitable" to have regard "to the claimant's share in the responsibility for the damage", s 138(3) provides: (3) The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case. [27] Section 74(3) of the Motor Accidents Act 1988 (NSW) is in the same terms. In Nicholson v Nicholson (1994) 35 NSWLR 308 at 333-334, Mahoney JA suggested a reason for the use of the broader language. The concept of contributory negligence involves the plaintiff's lack of care contributing to the damage. However, the effect of s 74(2), which is in similar terms to s 138(2), is to require a finding of contributory negligence in cases where the act or omission may not have caused or contributed to the damage claimed. Relevantly in that case, s 74(2)(c) required a finding of contributory negligence "where the injured person ... was ... not wearing a seat belt as required" by law. That being the position, the broader language may have been used to allow the Court in such cases to recognise that it would be unjust and inequitable, where there was no such causation or contribution, to reduce the damages otherwise recoverable. The remaining members of the Court, Kirby P with Meagher JA agreeing, also held that the finding of contributory negligence required by s 74(2)(c) did not constrain the inquiry as to what was "just and equitable" or prevent consideration of all of the circumstances, including whether the absence of a seat belt contributed to the damage claimed. [28] In a case that does not involve a finding of contributory negligence made under s 138(2) or deemed fault on the part of the owner or driver, an assessment of what is "just and equitable in the circumstances of the case" will involve, as part of that evaluative process, a comparison of the kind described in Podrebersek. See the discussion per Giles JA in Mackenzie v The Nominal Defendant [2005] NSWCA 180; 43 MVR 315 at [54] - [63]. In Joslyn v Berryman [2003] HCA 34; 214 CLR 552 at [157] Hayne J considered s 74(3) to require the undertaking of such a comparison: cf Kirby J at [133]. [29] Section 5R of the CL Act, which by s 3B(2)(a) applies to motor accidents, provides that the principles applicable in determining whether a person has been negligent, which include those in s 5B, also apply in determining whether the person who has suffered harm has been contributorily negligent in failing to take precautions against the risk of harm which materialised and resulted in injury. As Basten JA observed in Gordon v Truong [2014] NSWCA 97; 66 MVR 241 at [15], a case involving a collision between a pedestrian and a motor vehicle, the existence and extent of a claimant's contributory negligence is to be assessed by reference to the risk of harm which is the subject of his or her claim for damages, and the precautions that a reasonable person in the claimant's position would have taken against that risk. Section 5S provides that in apportioning responsibility a court may determine a reduction of 100 per cent in the claimant's damages by reason of contributory negligence." 1. Recently, Beazley P stated in Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 (Barrett and Gleeson JJA agreeing) as follows:- [161] The effect of s 5R therefore is to require the court, in determining whether a person is contributorily negligent, to apply the provisions of s 5B and s 5C, being the statutory provisions applicable to determining breach. There may be a question whether any aspect of the common law continues to apply to the determination. However, that question does not need to be determined in this case. [162] As has been remarked in various cases in this Court, there is a conceptual difficulty in applying the general principles identified in ss 5B and 5C to the determination of contributory negligence: the question of breach is directed to whether a person has breached a duty owed to another person; contributory negligence, however, requires a determination whether a person has taken reasonable care for the person's own safety. Once this difference in the fact finding task is recognised, the manner of application of s 5B becomes apparent. Consideration is required to be given to the statutory prescriptions in s 5B. In doing so, it is to be borne in mind that s 5B(2) is not limited to the factors identified in s 5B(2)(a)-(d) and that pursuant to s 5R(2), the standard of care is that of a reasonable person in the position of the plaintiff and the matter is to be determined on the basis of what the person knew. Once a finding of contributory negligence has been made, the Motor Accidents Compensation Act, s 38(3) requires the court to reduce the damages recoverable "by such percentage as the court thinks just and equitable in the circumstances of the case". 1. In submissions, Mr Renshaw, who appeared on behalf of the Defendant, referred to evidence given by Mr Youmaran to police after the accident. It was conceded that the Defendant bore the principal part of the liability but attention was drawn to the following exchange recorded by police with Mr Youmaran just after the collision. "Q. Had you looked for oncoming traffic prior to pulling out of your driveway? A. Yes. It was completely clear and as soon as I turned just… he was completely flying. … Q. Approximately how long was the roadway clear of oncoming traffic before you pulled out? A. Five seconds, s-10 seconds." 1. Mr Renshaw contended that this version, being contemporaneous and unpressured by time, should be accepted 2. The contention that the Defendant's view of the roadway was clear for five to ten seconds before the he pulled out and that the Plaintiff came "completely flying" does not accord with the Defendant's sworn evidence or that of his wife making observations and calling out to him to get his attention. The latter evidence was not objected to and falls to be considered in accordance with s 60 Evidence Act 1995. The term 'flying' in any event is at best a descriptive impression given at a time when the Defendant was on his own admission in deep shock. [19] To the extent that it conveys anything inconsistent with speed in accordance with my findings, I do not accept it. In my view contributory negligence has not been established. Treatment 1. Following the accident, the Plaintiff was taken by ambulance to the Royal Prince Alfred Hospital. He was noted at the time to have had a Glasgow Coma Scale score of 13 at 8:15am and 8:22am and 14 at 8:32am and 8:42am. Loss of consciousness for 1-2 minutes was recorded as having been witnessed. Morphine was administered for pain and the Plaintiff was thought to have compound fractures to the right clavicle, right humerus and right wrist. 2. At the Royal Prince Alfred Hospital he was noted to have sustained the following:- 1. Close head injuries; 2. Two spinal fractures of C7, T3-9 transverse processes and T 12; 3. Fractures of the pelvis, right scapula, right radius and left metacarpal; 4. Four chest injuries with multiple right rib fractures and associated right pneumohemothorax; and 5. Abdominal trauma (a small sub-scapula splenic haematoma). 1. There were multiple complications which extended the Plaintiff's recovery time, including:- 1. Hypertension and ongoing requirements for blood products during the initial orthopaedic surgeries; 2. Acute renal failure requiring haemodialysis; 3. Respiratory tract infection; 4. A need for prolonged ventilator support resulting in tracheostomy; 5. Pulmonary emboli necessitating anti-coagulant therapy; 6. Diarrhoea; 7. Superficial vein thrombosis; and 8. Pressure ulcer in the sacral region. 1. The Plaintiff's evidence was that he was in a coma for around one week, although after that he was still sleeping a large amount of the time and not able to follow anything particularly complex. [20] Notwithstanding he was on opioid medication, he claimed that he was still suffering pain in his spine (particularly the thoracic spine), ribs, down the right side of the abdomen, right wrist and severe pain in the shoulder blade and down into the pelvis. [21] 2. When he awoke from the coma he was heavily medicated and could not move. He was in a neck brace, lying flat on his back and all he could do was look upwards and was unable to move his legs or right arm, use his left hand and could not speak or eat. [22] Initially he could not speak because of the tracheotomy but subsequently was constantly dry in his throat as a result of being fed through a tube down his nose. [23] 3. The Plaintiff gave evidence as to the discomfort and pain he felt whilst having a chest and neck brace. [24] 4. The Plaintiff described his condition as feeling "very trapped, to the point of having a panic attack". He stated that he could not move his legs because of muscle wastage and had little movement in his left hand and felt "totally helpless". [25] 5. On 1 June 2011, the Plaintiff was discharged from the Royal Prince Alfred Hospital and admitted to the Metro Rehabilitation Hospital. Whilst there, Mr Parker received considerable physiotherapy and occupational therapy as well as social work support. When he arrived he could not walk and was getting around in a wheelchair and in a "forearm brace". He stated that he was constantly in pain in the thoracic spine, the ribs and the right shoulder. [26] He also stated that he had pain in the pelvis and the right wrist. [27] Further he could not toilet himself on his own but was able to recommence independent toileting after two weeks. Independent showering did not happen for a few weeks after he went home. The daily treatment he received included two sessions of physiotherapy in the gymnasium and one session in the hydrotherapy pool. [28] He conceded that this assisted him in terms of regaining movement. [29] 6. The clinical notes of the Metropolitan Rehabilitation Hospital record chief impairments including "closed head injury". [30] Further they note that a Montreal Cognitive Assessment (MOCA) indicated cognitive functioning was well preserved over all (total score 29/30) and delayed verbal memory (for five words) was mildly impoverished (4/5 on free call and 5/5 with queuing). [31] 7. The Plaintiff was discharged on 24 June 2011. 8. The Plaintiff's evidence was that, at home, metal railings were installed on both sides of the stairs leading to the house and a detachable head, shower seat, a bench for the bath tub and a height-adjustable hospital chair as well as a seat over the toilet. 9. Nerve conduction studies carried out at St Vincent's Hospital on 29 June 2011 by Dr O'Neill concluded as follows:- "The right ulner sensory action potential was absent. There was a small compound muscle action potential from ADM. Right ulner motor conduction velocity was normal with no evidence of motor conduction block across the right elbow segment." [32] 1. On 30 June 2011, an ultrasound of the right shoulder which was reported on by Dr Stewart as follows:- "Mild subacromial bursal thickening with bunching on abduction with AC joint degeneration. [33] 1. A venus duplex scan was carried out on 8 August 2011 in relation to the Plaintiff's lower extremities. Professor JP Harris commented:- "Chronic non-occlusive thrombus with right medial gastrocnemius vein with no evidence of extension into the popliteal vein. Patent major axial deep vein left lower extremity with no evidence of deep venus thrombosis. There was evidence of wall thickening with long saphenous veins bilaterally and the right short saphenous vein." [34] 1. A chest x-ray was carried out on 15 August 2011, which was reported on by Dr John Harding-Smith. The report noted:- "At least six posterior right rib fractures, healed/healing. Some associated plural thickening." [35] 1. The Plaintiff was seen on 15 August 2011 by Dr Paul Torzillo, respiratory physician. In a letter of the same date to the Plaintiff's general practitioner, Dr Ryan, Dr Torzillo stated that the Plaintiff had made a remarkable recovery. Dr Torzillo noted that the Plaintiff was walking but still has some right shoulder and back discomfort but is otherwise coping well. He noted that there were complaints of numbness to the left thigh which he thought was L1 in distribution. He noted that the Plaintiff had good lower limb movement and essentially normal flexion-extension at the hip with well-preserved reflexes. [36] 2. On 19 August 2011, the Plaintiff had CT scans of the cervical and thoracic spine performed which were compared with previous scans conducted on 8 May 2011. Dr Wilkinson, radiologist, reported:- "Multiple cervical spine and thoracic spine fractures noted again. There is maintenance of vertebral body heights and no abnormal alignment detected on today's studies. There is sclerotic change associated with these factors in keeping with bone healing." [37] 1. In relation to the left elbow, an x-ray conducted on 19 August 2011, Dr Schatz reported:- "There is joint space narrowing. There is some bone irregularity of the lateral edge of the capitellum. On the lateral projection, there is ossific density posteriorly at the level of the olne cranonfossa- either boney spur or loose body. There is also ossification around the surface of the medial epicondyle. The findings would be consistent with previous intra articular injuries. CT is recommended to better define these findings." [38] 1. On 12 September 2011, Dr Torzillo noted that the Plaintiff remained well and that his echocardiogram showed no evidence of pulmonary hypertension. [39] Dr Torzillo also noted that the lower limb Doppler studies showed some abnormalities and chest x-rays showed fractured ribs with some plural abnormalities. He recommended that the Plaintiff cease anticoagulants after six months, commencing 1 October. 2. The Plaintiff came to be seen by Dr Petchell, orthopaedic surgeon, in late 2011. Dr Petchell noted the Plaintiff's lack of response to six months of physiotherapy for his shoulder and therefore recommended arthroscopic acromioplasty and capsule release. [40] A right shoulder arthroscopic acromioplasty, distal clavicle co-planning and capsule release was carried out at the Sydney Private Hospital by Dr Petchell on 24 February 2012. Following this, Dr Petchell saw the Plaintiff on 15 May 2012. He noted that the Plaintiff had gained motion and there was good power of the rotator cuff with no discomfort or supraspinatus. He recommended that the Plaintiff continue physiotherapy and commence a strengthening program. [41] There is a suggestion that the Plaintiff saw Dr Petchell in December 2012, however, there is no report of this. [42] The circumstances as to how the Plaintiff came to cease seeing Dr Petchell were not revealed in evidence. 3. What is clear is that on 20 October 2011 the Plaintiff resumed work on a limited duties basis. Commencing 13 October 2012 the Plaintiff attended seeing Professor Cohen, specialist pain management physician and rheumatologist. He has remained with Professor Cohen since. 4. Professor Cohen, referred the Plaintiff for Feldenkrais therapy in order to improve biomechanical function of the thoracic spine and chest cage. This, was not followed through at the time. An alteration was also made to the Plaintiff's opioid regime with a change to Oxycontin, originally at 60mg per day but subsequently increased to 80 mg per day. He was also prescribed Mirtizapine 15mg at night for its sedative, anti-depressant and its appetite stimulating qualities. [43] 5. When reviewed by Professor Cohen on 31 October 2012, the Plaintiff was noted as having some improvement but noted deterioration in mood, worsening sleep and feeling generally out of sorts with headaches and feelings of disorientation. [44] 6. On 28 November 2012, the Plaintiff was seen again by Dr Cohen, who recommended reduced opioid usage. 7. On 9 January 2012, Professor Cohen noted that the Plaintiff's overall predicament was unchanged insofar as the pain was concerned but he was not experiencing as much incident pain and his activity had increased. Sleep and motivation had improved although his mood was between 6 and 5 on a descending scale of depression out of 10. It was noted that the Plaintiff experienced significant incident pain by the time he got home early in the afternoon. 8. The Plaintiff continued to see Professor Cohen, who reported on 9 January 2013 significant incident pain by the time he gets home in the afternoon and recommended changes to Oxycontin and Venlafaxine. [45] 9. On 6 March 2013, Professor Cohen noted that the Plaintiff's work was stressful and contributed to his anxiety regarding his future and his income and a pervasive anxiety seemed to occur at other times. On 24 April 2013, Professor Cohen noted that the ultimate intention was for the Oxycontin dosage to be lowered. On 30 May 2013, Professor Cohen noted that Mr Parker remained relatively overdosed with Opioid and suggested that he increase the dose of the Venlafaxine to 112.5mg and if things proceeded well to decrease Oxycontin by 10mg in the morning. [46] 10. On 4 July 2013, Professor Cohen noted that the Plaintiff's sleep and mood remained unsatisfactory. He also noted that the Plaintiff's concentration and short-term memory were still problematic. He opined:- "Whether this is due to residua of the closed head injury or medication or the pain is not clear: I would favour medication as the major contributor." 1. Professor Cohen further noted that the Plaintiff had been cleared to attend Feldenkrais therapy and completed a course with a clinical psychologist. He also noted that the Plaintiff's current dose of Oxycontin of 45mg was still too high in terms of his brain function but he suggested no change for the moment. He noted a good response to Venlafaxine at 112.5mg per day. 2. On 11 September 2013, Professor Cohen noted that the Plaintiff had been seeing a Feldenkrais therapist on a twice weekly basis. He further noted that this was associated with stirring up some of the pain, arising out of the difficulty which he had in reducing his Oxycontin dosage from 45mg per day. His mood had improved, however, his sleep remained variable. The difficulty with his employment situation was noted, in particular, his relationship with his supervisor and that the job was not secure. [47] This will be discussed later in these reasons. 3. On 3 October 2013, the Plaintiff was seen again by Professor Cohen, following his resignation from work. Dr Cohen noted that there were many stresses influencing Mr Parker's presentation, most of them biomedical and the potential for psychosocial factors to influence experience with pain was acknowledged. 4. In a further report of 27 February 2014, [48] Professor Cohen, noted that the Plaintiff had been attending physiotherapy in Leichardt three times per week for the preceding three to four weeks and that the techniques were mainly passive and painful, associated with an increase in pain of which he complained. He also noted that since the dosage of Venlafaxine was reduced there had been some deterioration in Mr Parker's mood to which the post-physiotherapy exacerbations of pain may have contributed. He suggested that the dose be restored to 225mg per day and that he continue with other medications, namely, Oxycontin at 45mg per day and Pregabilin at 150mg at night. 5. On 24 April 2014, Professor Cohen noted that Mr Parker recorded that his mood had stabilised on the high dose of Venlafaxine. Professor Cohen noted that Mr Parker had reached a plateau in his predicament which was unsatisfactory but in respect of which he was being a very good self-manager. The effectiveness of pharmacotherapy was again reviewed and Professor Cohen recommended that the daytime dose of Pregabalin might be added in the mid-morning at 75mg to see if he could reduce the sensitivity of his spine and thus increase his endurance for activities. 6. In a report dated 5 June 2014, Dr Cohen noted that the Plaintiff had attempted to take extra Pregabalin in the mid-morning for a week and a half but at the expense of increased fatigue and feeling disconnected. He reported:- "Mr Parker has recently pursued the recreational activity of making a new guitar: although that activity gave him much pleasure and elevated his mood, it was associated with the exacerbation of pain. This lead me to consider other aspects of Mr Parker's predicament, namely that he is expected to look for work and, at his own request, has been certified as fit to do so albeit for only 16 hours per week. However, a closer look at his predicament suggests that he is really not fit to look for work: he is not yet into "non-work" and his pain is easily exacerbated. I cannot see how he can compete in the open market at this time. I have suggested that he might discuss with you as being certified unfit to work for the time being." 1. On 6 August 2014, Professor Cohen noted that Mr Parker had reached an unsatisfactory plateau with his main complaint being fatigue, especially physical but also mental, particularly in the afternoons and evenings. He noted that the Plaintiff's sleep was characterised as being non-refreshing. Professor Cohen noted that while the Venlafaxine and Pregabalin had been of benefit, he was concerned that the Plaintiff's mental agility and some of his emotionality continued to be dampened most likely due to the opioid. He therefore suggested that Oxycontin be reduced to 10mg (a 115% reduction in dosage) while other drug prescriptions continued. 2. On 6 August 2014, Professor Cohen wrote to Dr Barry, recommending that Mr Parker undertake Feldenkrais therapy for specific attention to thoracic intervertebral and costovertebral movement. [49] It appears that there was a reduction of 5mg per day of Oxycondone in September 2014, which had some impact. On 6 November 2014 Professor Cohen wrote to Dr Barry, suggesting that the dose be restored to 45mg per day. This was subsequently further increased to 60mg per day. [50] Professor Cohen then attempted to place the Plaintiff on Gabapentin with a view to changing from Pregabalin. It was subsequently ascertained that there was no real response to the Gabapentin, with the Plaintiff noticing that incident pain had increased as well as an increase in background pain. [51] 3. In a report of 11 February 2015, Professor Cohen wrote to Dr Barry stating:- "In my recent reports to you I have expressed the view that Mr Parker has been travelling as well as possible – but that is still not good enough. I do think that he is doing as well as he can and is continuing to benefit from ongoing clinical psychological input. The challenge is more at the nervous system level – to see if we cannot achieve better control of symptoms. Accordingly, I have now suggested the dose of opioid be increased by adding Targin 5/2.5 mg to each of his current Oxycontin 15mg doses, thereby increasing his total daily opioid dose by one-third. (When his next Authority script is due to be renewed, depending on his response, I would suggest that it be changed to Oxycontin 20mg tds). I have also suggested that gabapentin now be phased out, reducing the daily dose by 300mg every half week to zero." [52] 1. On 11 March 2015, Professor Cohen wrote to Dr Barry and stated that he had noted that the Plaintiff had commenced treatment with Ms Hellman, Feldenkrais therapist, and continued useful sessions with a clinical psychologist. He noted that the Plaintiff had increased his opioid use to 60mg per day for a probable benefit to background pain. He suggested that Mr Parker continue with Oxycontin and Venlafaxine as before, noting that he was doing as well as he could and asked him to concentrate gently mobilising the thoracic spine with the help of Ms Hellman. [53] 2. In a final report, as tendered in the proceedings, dated 17 June 2015, Professor Cohen noted:- "At review on 17 June last, after a three-month interval, Mr Parker certainly appeared to have maintained if not extended his previous gains. He has found that the increased dose of opioid, to Oxycontin 60mg/day, has allowed to him get on (sic) with life to some extent, although he probably does not pace optimally and therefore he experiences more incident pain. Cognitively he recognises that his ability to "multi-task" is compromised: I understand that he has had a full neuropsychiatric assessment recently in which he felt that fatigue and concentration were the main issues. Regrettably Mr Parker has only had six sessions of Feldenkrais therapy to date and I would very strongly urge the insurer to authorise ongoing such (sic) treatment, as this is a mainstay of his therapy. It remains my view that Mr Parker is travelling as well as might be expected. I suggest no change to his current pharmacotherapy. I know that the medicolegal aspects of his predicament are due to be heard next month and hopefully a weight will literally be lifted from his shoulders. We are also discussed (sic) in some detail the principles of brain retraining, both physically (through Feldenkrais) and cognitively (through a number of techniques)." [54] 1. Professor Cohen has not otherwise provided a prognosis. Nor has any substantive report been provided by the Plaintiff's general practitioners, being Dr Ryan prior to 27 May 2013 and, thereafter, Dr Barry. 2. The Plaintiff did, however, see Dr Endrey-Walder, most recently on 22 August 2014. In that report, Dr Endrey-Walder stated:- "There is probably little one can do for his restricted movement at the cervical spine, and given the very serious nature of the cervical fracture, one would certainly counsel against any form of chiropractic or osteopathic manipulation. I was rather concerned regarding this gentleman's gibbus at the mid-thoracic back when I saw him two years ago and recommended that he should at least have a plain x-ray to see if there is any wedging of the vertebrae in the area. This has not been performed so far and so I can't comment further. It is, however, appropriate to recall that he did suffer fractures of the right transverse processes between T3 and T9, although such injuries are not assessable and would not cause the gibbus. He may benefit from hydrotherapy on a regular basis, which he has had over the last couple of years. The same applies to his lower back. There is still nothing further to be done regarding the right wrist condition and no therapeutic measures will make any difference to the numbness in the distribution of the ulna nerve in the right hand which is likely to be either a consequence of the fracture of the distal radius or the subsequent surgery. There was discussion with Dr Petchell more than two years ago regarding possible surgery for the ectopic calcification at the left elbow which certainly contributes to the restricted range of movement, and this is one other reason to see the doctor apart from the right shoulder condition. … It remains for me to refer to this man's left inguinal hernia which I was not aware of at the last time. As to whether he had some weakness in the groin prior to the accident or not is now impossible to say, but it is obvious that in 2009, when he had repair of the right inguinal hernia, he did not have this condition, otherwise it would have been repaired as well. He suffered multiple injuries in and around the pelvis, and the momentary increased inter-abdominal pressure at the time of the accident could well have precipitated this condition." [55] 1. The Defendant did not contest the Plaintiff's physical injuries. It qualified Dr Barrett, who examined the Plaintiff on 21 February 2013. Dr Barrett's report has not been tendered on behalf of the Defendant. The Defendant did submit evidence from Drs Pascall and Zeeman. That evidence will be discussed later in these reasons. Psychological Symptoms and Brain Injury 1. As noted earlier, the ambulance records [56] noted the Plaintiff as having a Glasgow Coma Scale score of 13-14. They also record 1-2 minutes loss of consciousness. The discharge summary at the Royal Prince Alfred Hospital recorded a closed head injury with a CT scan of the brain showing:- "The ventricles and subarachnoid spaces are within normal limits. No intra or extra axial haemorrhage. No focal parenchymal lesions, mass effect of midline shift. The grey/white matter interface is preserved. No skull fracture identified. The mastoid cells and paranasal spaces are well aerated." [57] 1. As noted earlier, the clinical notes of the Metro Rehab Hospital also recorded "closed head injury" and "nil residual cognitive deficits." [58] 2. The Plaintiff was seen by Dr McGee-Collette, neurosurgeon, who referred the Plaintiff to Dr Zed Thayer for a neuropsychological assessment. No reports from either doctor are in evidence. There are references, however, to both doctors' reports in the report of Dr Langeddecke dated 10 June 2015. [59] 3. Dr Thayer is recorded as having reported on 3 September 2011. Cognitive fatigue was observed and the Plaintiff's performance was in keeping with his estimated superior to very superior premorbid level of ability in most cognitive domains. Exceptions were in areas of working memory, which was average on a digit reversal task, and memory capacity which ranged from low-average to superior for his age. Dr Thayer apparently concluded that the cognitive weaknesses identified were in keeping with brain injury sequelae and could not be adequately explained by pain, analgesia or the mild depressive symptoms indicated by the Plaintiff on a mood state measure. 4. Dr McGee-Collette reviewed the Plaintiff on 13 September 2011. Dr Langeddecke's report recorded:- "Dr McGee-Collette noted the findings of the recent neuropsychometric assessment by Dr Thayer and considered them acceptable under the circumstances. Dr McGee-Collette was of the opinion that Mr Parker had not sustained a severe brain injury, and that his long period of PTA (post traumatic amnesia) was due to prolonged sedation necessitated by his pulmonary injuries. Dr McGee-Collette reported no indications for further neurosurgery involvement." 1. The Plaintiff was assessed for medico-legal purposes by Dr Jungfer, consultant psychiatrist, on 14 June 2012 at the request of the Plaintiff's solicitors. Dr Jungfer's report noted that the Plaintiff had sustained a head and brain injury in that he had a period of loss of consciousness, a prolonged period of retrograde amnesia of greater than 12 hours and a period of post traumatic amnesia that was recorded at 46 days, although this would have been impacted upon by issues with physical illness. Dr Jungfer stated that the clinical records would need to be reviewed to determine the severity of the brain injury and further investigations would need to be conducted. [60] 2. Dr Jungfer recorded the neuropsychologist's assessment as being of the opinion that CT scanning was insufficiently sensitive to pick up the effects of structural injury. [61] In conclusion, Dr Jungfer opined:- "Mr Parker reports a range of symptoms consistent with having sustained a clinically significant acquired brain injury. When looking at the limited clinical information provided, it is likely that Mr Parker sustained both a structural brain injury from acceleration, deceleration and a hypoxic injury due to his massive chest injuries and hypo-bulimia. This should be clarified, however, by reading the clinical records. Mr Parker's range of his cognitive symptoms which he reports though are consistent with acquired brain injury. He is following a trajectory of recovery consistent with the known recovery pattern of acquired brain injury and is utilising some adaptive strategies although has not benefitted from appropriate rehabilitation from an acquired brain injury perspective." [62] 1. Dr Jungfer diagnosed a cognitive disorder secondary to brain injury (multiple contributing factors including structural brain injury and hypoxemia), adjustment disorder with depressed and anxious mood and chronic pain disorder. [63] Dr Jungfer recommended that Mr Parker would benefit from a referral to a clinical psychologist and a rehabilitation service with expertise in brain injury. [64] The Plaintiff was thereafter seen, at the request of his solicitors, by Dr Dinnen on 3 July 2012. Dr Dinnen, psychiatrist, reported on 13 July 2012. [65] Dr Dinnen's opinion was:- "The limited documentation does suggest the possibility of a brain injury occurring in the accident but there is not evidence at interview of any significant cognitive impairment. However, there is evidence of an ongoing depressive response to the injuries and limitations of functions, which is not surprising. In my view, he does suffer from an adjustment disorder with depressed mood. Generally he is coping better than one would expect and he has superior abilities and resources which should prove helpful in the long run. The prognosis therefore is a little bit more positive than one might expect." [66] 1. Dr Dinnen stated that the main limitations to the Plaintiff's work capacity were his physical injuries and his psychiatric condition was said to not have much impact relatively speaking. [67] 2. An MRI of the brain was carried out by Dr Parker on 4 October 2012. This was provided to Dr Langeddecke at the time of her assessment by the Plaintiff. The scan is said to have provided no evidence of abnormality. The report itself, however, was not tendered in evidence. [68] 3. The Plaintiff was assessed on 10 October 2012 by Ms Elizabeth Carter, clinical psychologist. Ms Carter did not carry out a neuropsychological assessment but relied upon those which had been carried out previously. She opined that the Plaintiff would benefit from psychotherapy provided by a clinical psychologist with expertise in brain injuries. [69] 4. It is clear from the Plaintiff's own evidence and from the contents of Dr Langeddecke's report that the Plaintiff saw a clinical psychologist, Ms Lyn Bousfield. [70] This commenced in February 2013 initially on a weekly and then later on a fortnightly basis. [71] It appears that Ms Bousfield discharged Mr Parker from psychological treatment on 26 June 2013 but was subsequently referred back by Dr Barry on 4 October 2013. [72] Nevertheless, Dr Langeddecke reported that the records from the treating psychologist available to her were exceptionally limited. [73] 5. On 6 and 14 June 2013, the Plaintiff was the subject of a neuropsychological assessment by Ms Corinne Roberts at the request of his solicitors. Ms Roberts' report noted that the Plaintiff requested a couple of brief breaks during the first testing session and was clearly fatigued and struggling to sustain his concentration and mental efforts towards the end. The appointment was therefore terminated and testing was completed on a second occasion. A number of learning and memory functioning tests were carried out and Ms Roberts opined:- "Mr Parker's results at the current assessment were essentially similar to those obtained by Dr Thayer, apart from a slightly poorer performance on a test of verbal memory that involved the apprehension and retention of logical, verbal material (short stories). In demonstrated in tact intellectual ability, immediate span of attention, working memory, speed of information processing, basic language functions, and high level cognitive or executive functioning (planning and organising, problem solving, flexibility of thinking, conceptual ability, ability to generate ideas). However, his performance of new learning and short term recall, particularly in the verbal domain was less efficient than expected for someone of his superior general intellectual ability. In addition, significant cognitive fatigue was evident, such that Mr Parker ran out of steam and was unable to sustain the mental effort needed to complete the assessment in one day." [74] 1. Ms Roberts then went on to state:- "…These high level cognitive difficulties are likely to be due to the combined effect of a number of factors including residual effects of brain injury (mild to moderate TBI plus possible hypoxic injury), chronic pain and possible side effects of medication required to manage this, chronic sleep disturbance and psychological distress related to adjustment issues." [75] 1. Ms Roberts stated that the Plaintiff's ability to make optimum use of his cognitive abilities may well improve if he has the benefit of clinical psychology input, both in regards to managing his chronic pain and alleviating psychological distress. [76] 2. On 9 October 2013, the Plaintiff was seen by Dr Spira, consultant neurologist, at the request of the Defendant's solicitors. Dr Spira obtained a history from the Plaintiff of significant cognitive fatigue which limited his capacity to maintain his attention over prolonged periods. He also obtained a history of short-term memory difficulties and was informed that the Plaintiff was finding it difficult to record details of conversations he has had in the course of his work and he was finding that he had to keep notes where previously he would have been able to retain the information without difficulty. [77] 3. Dr Spira noted that the Plaintiff complained of cognitive sequelae to the accident and stated that it was important that this be quantified by formal psychometric evaluation. He stated that, ideally, the Plaintiff should be subject to an MRI scan to the brain to determine whether objective evidence of a brain injury can be identified. Psychometric testing did take place with the referral to Ms Corinne Roberts abovementioned. Although the report of Ms Roberts is dated 14 November 2013, it is not referred to in Dr Spira's report of 19 November 2013. 4. In her subsequent report of 29 November 2013, Dr Jungfer stated:- "…… the report of the neuropsychologist in my opinion confirms a history of structural brain damage impacting upon Mr Parker's verbal memory functioning. These biological impairments are further impacted upon by his need for chronic pain medication, his chronic pain and his psychological response to the accident. It is also important to note that psychometric testing occurs in optimal environment and that the person is able to compensate for some impairment. It is my opinion that it is likely that he may well have some subtle impairments in other areas such as executive functioning that are not detectable on psychometric testing but become more evident in his work environment as has been alluded to by the neuropsychologist." [78] 1. The Plaintiff completed a six week memory training program at the Royal Prince Alfred Hospital. In a report dated 28 May 2014 Mr David Fox, provisional psychologist, and Mr Laurie Miller, supervising clinical neuropsychologist, stated:- "…I was extremely encouraged to see Mr Parker use some of the internal memory strategies that he had learned during the course at post-assessment. Mr Parker showed significant improvements on measures of verbal anterograde learning, face-name associative learning and prospective memory at the post-training assessment and he more than doubled his performance on a measure of delayed recall (see Figure 1). Moreover, his performance on delayed recall measure at post-assessment was well-above that observed in the general population. While Mr Parker, reported that his every day forgetfulness remained stable over time (see Figure 2), it is possible that his overall confidence in his memory will improve as he becomes more proficient in applying the strategies that he was taught during the program. Accordingly, at the post-training assessment Mr Parker was able to list more internal strategies and external memory aids that he was using on a day to day basis (see Figure 3). He also indicated on a post-evaluation form that he could recognise more factors and/or 'triggers' that could make his memory better or worse and felt that he was more equipped to take on memory dependant tasks throughout the day (see Figure 4). On a self-rate measure of recent mood, Mr Parker reported extremely severe levels of depression and anxiety and moderate levels of stress at both pre and post assessment (see Figure 5)…" [79] 1. The Plaintiff saw a psychiatrist at the request of the Defendant's solicitors in May 2014. Although the Plaintiff could not recall the name of the psychiatrist, it does not appear to be in issue that it was Dr Lewin. 2. On 30 August 2014, the Plaintiff was seen for medico-legal purposes by Dr Pascall, occupational physician, at the request of the Defendant. Dr Pascall noted that she was not satisfied that the Plaintiff had sustained a head injury of any note. Dr Pascall noted that the Glasgow Coma Scale score was 15 on admission to the Royal Prince Alfred Hospital and that the assumption that he had suffered a head injury was based on a witnessed loss of consciousness for two minutes. Referring to the ambulance score, recorded as being initially 13 and then 14, Dr Pascall opined that the 1-2 minutes of loss of consciousness was presumably before the arrival of the ambulance and was, therefore, not observed by anyone medical. Dr Pascall stated that the supposed loss of consciousness may not have been a true loss of consciousness, particularly as the Plaintiff would have been having difficulty breathing and would have been in a great deal of pain. Dr Pascall then opined:- "For Mr Parker to be considered as suffering traumatic brain injury there must have been 'evidence of significant impact to the head, or a cerebral insult, or that the accident involved a high velocity vehicle impact' (MAA Guidelines, p.31 para 5.9) – there is nothing in the ambulance report to indicate there was a blow to the head or evidence of trauma to the head; I do not have the Emergency Hospital notes to know if there was any notation about trauma to the head other than the loss of consciousness; there was however, a high velocity vehicle impact. The second part of para 5.9 states that there has to be 'one or more significant medically verified abnormalities, such as an abnormal initial post-injury Glasgow Coma Scale score or Post Traumatic Amnesia or brain imaging abnormality'. I am not satisfied that any of these criteria applied in Mr Parker's case. I do not consider the criteria for a traumatic brain injury to be fulfilled." [80] 1. In cross-examination, Dr Pascall conceded that Dr Jungfer was possibly in a superior position to her to comment on brain injury. She did not concede this in the case of Dr Langeddecke. [81] 2. In re-examination, Dr Pascall stated:- "The psychometric testing for depression, for instance, can look worse than mild to moderate brain injury. That would need to be stabilised and deemed not to be depressed in interpreting a psych, neuro-psych test. Opioid medication also slows down the cognitive function and awareness, if not the actual motivation to do the testing and to persist with testing protocols which are quite onerous and prolonged." [82] 1. Dr Brian Zeman, consultant in rehabilitation medicine, produced two reports at the request of the Defendant. In his report, dated 20 November 2014, [83] Dr Zeman opined:- "There is general agreement that Mr Parker sustained traumatic brain injury and may have had some hypoxic brain injury. He had no neurological signs to indicate brain injury such as hemiparesis or dysphasia. He was of superior intelligence before the accident and his scores for tests of cognitive function after the accident were generally above average or average. Only a few areas of cognitive function were reduced and these were in areas that could occur from causes such as depression, poor motivation, pain etc. He is recognised as being depressed. Since Mr Parker was last seen, he said that he had a breakdown as he could not cope and had to stop work for a period. He has since not returned to his previous work and is actively seeking employment. He has restarted seeing L Bousfield (psychologist). On his current presentation and history with depression and pain etc, if he did have cognitive problems from TBI, they are very mild and subtle as one would expect some reduction of performance from the depression and pain." 1. Further testing was thereafter carried out on 20 May 2015 at the request of both parties' solicitors by Dr Pauline Langeddecke. Dr Langeddecke noted that the Plaintiff's overall profile on the clinical solutions effort measure placed him below the tenth percentile, relative to a composite clinical sample of specific clinical groups (including traumatic brain injury and major depressive disorder), persons of similar educational level and general intelligence at the 5, 10, 15 and 20 per cent cut-off. Dr Langeddecke stated that the results in relation to memory testing need to be interpreted with caution. [84] 2. In relation to memory and learning abilities, Dr Langeddecke noted as follows:- "Memory and Learning Abilities: Mr Parker's performance was highly variable, and at times well below expected levels, on tests assessing his ability to encode verbal and visuospatial information and recall it after a delay of 20 to 30 minutes. His familiarity with this information from previous testing (i.e. practice effects) increases the significance of the weaknesses identified. On the Wechsler Memory Scale (WMS-IV), recall of contextual information (short stories) presented once was Average for age immediately after hearing it and after a 20 to 30 minute delay. This represents a decline from performance on the same task when assessed by Dr Thayer in September 2009, when immediate and delayed recall were High Average for age, particularly after considering practice effects. Ability to learn new verbal associations on a word pair learning task was well below expected levels on present testing, with 6 of the 14 word pairs correctly recalled after four successive presentations. Initial learning was Low Average for age, as was the number of word pairs recalled after a 20 minute to 30 minute delay. On the visually-based tasks, Mr Parker's ability to reproduce simple figural information immediately after viewing it briefly was at a Very Superior level for age. A significant amount of this information was lost after a short delay: his performance falling within the Average range for age. Immediate recall was Average, and short-term recall was High Average, on a visuospatial memory task assessing recall of designs and their position on a grid. On composite measures (WMS-IC Index scores), auditory memory was towards the lower end of the Average range (32nd percentile), visual memory was High Average (81st percentile), and Immediate and Delayed Memory were within the Average range (70th and 45th percentiles, respectively). Auditory, Immediate and Delayed Memory Index scores were unusually low relative to those expected given Mr Parker's general intelligence on the WAIS-IV (base rates below 10% in the general population). Further assessment of verbal memory/learning on a word list learning task similar to the Rey Auditory Verbal Learning Test administered previously (i.e., CVLT-II), placed Mr Parker's initial recall after the first presentation, learning over five trials, retention of the initial word list after exposure to competing material (another list of words), and short-term retention within the Low Average to Average range for age. Performance was well below expected levels on the delayed recognition memory tasks (which are sensitive to inadequate effort), with only 10 of the 16 target words correctly discriminated from non-target words and two errors on a simple task requiring him to indicate which of two words was contained in the initial list. The Rey Complex Figure Test was not re-administered as Mr Parker performed at a Very Superior level on this fairly demanding visual memory task when initially assessed by Dr Thayer." [85] 1. Dr Langeddecke summarised:- "Summary: Cognitive functioning was found to be well preserved in all cognitive domains on present testing with the exception of memory/learning abilities which were generally Average for age without correction for practice effects. It is possible that the validity of the memory findings was compromised by inadequate effort. Mr Parker endorsed significant problems with depression, anxiety and stress on a mood state questionnaire. He and his wife indicated problems with selective higher order cognitive functions and emotional regulation in his normal environment on a questionnaire assessing selective executive functions." [86] 1. The Defendant submitted that I should not accept Dr Jungfer's opinion. Attention was drawn to the fact that the case for hypoxic brain injury is not supported by any other expert evidence at all. 2. On the evidence I accept the Defendant's contention as to hypoxic brain damage but I am satisfied that the Plaintiff did in fact suffer some traumatic brain injury from the effects of the collision. I consider this to be very mild. It has not been demonstrated at any of the diagnostic tests. Nevertheless the Plaintiff had a Glasgow Coma Score of 13-14 /15 at the accident scene and a loss of consciousness for 1-2 minutes. Dr Pascall questions lucidity after the loss consciousness as she claims the plaintiff would have had difficulty breathing and would have been in pain. However her views were not supported elsewhere in the evidence. She stated:- "I was aware of medical reports that were referring to brain injury, but when I analysed the data from the hospital, there were not the criteria to support a brain injury." [87] 1. Doctor Pascall noted she did not have access to the full the emergency notes of the Royal Prince Alfred Hospital as she referred only to the discharge summaries and did not see any notation about trauma to the head. [88] In fact closed head injury is referred to in the discharge referral, [89] although as Dr Jungfer notes in her report of 14 June 2012, the severity of the injury cannot be determined. [90] Dr Pascall acknowledged that the accident involved a high impact collision. She questioned the period of post traumatic amnesia of 46 days due to the Plaintiff's induced coma. Dr Jungfer acknowledged this as an overestimate but refered to the loss of consciousness and prolonged period of retrograde amnesia of greater than 12 hours. 2. To the extent of establishing mild traumatic brain injury, I prefer the view of Dr Jungfer who Dr Pascall in any event acknowledged was possibly in a superior position to comment. [91] Dr Jungfer's opinion in this regard appears to accord with Dr Zeman. I am fortified in this view by the fact that the Defendant arranged for the Plaintiff to be examined by Dr Lewin but declined to tender a report into evidence. Lay Evidence 1. The Plaintiff is currently aged 47. 2. He continues to have Feldenkrais physiotherapy. [92] 3. He stated that he still sees Dr Barry who provides him with prescriptions of Oxycontin. He stated that he would have further surgery on his shoulder if recommended and there was a good chance of improvement. He was still attending hydrotherapy on a weekly basis. The Plaintiff also expressed an expectation that he may have to undergo surgery in relation to a hernia in the left groin area. [93] He was observed in Court walking with a limp favouring the right side. [94] 4. The Plaintiff's evidence was that he felt guilt regarding the workload that was placed on his wife and he has negative thoughts including suicidal thoughts. [95] He states that he has been receiving assistance from Ms Bousfield, psychologist, who he sees once a fortnight. He stated that he also had a lower libido. He had increased anxiety. He had anxiety attacks every couple of months. [96] Such attacks would last for a time between 15 minutes and a day. [97] 5. Following the accident, he stated he lost approximately 18-19kg in weight but had gradually regained it. [98] He is presently about 9 kg more than he was at the time of the accident. [99] He put this down to a sedentary lifestyle. He stated that he had a reduced ability to play with his children. [100] 6. Whereas he would previously manage discipline of the children with his wife, following his return home after the accident, this was very much left to his wife. He stated that he felt more like a guest rather than a contributing member of the family. He stated that he felt guilty about the load that was being placed onto his wife and other family members. 7. His pre-injury activities were rock-climbing, bike-riding and making guitars. He stated that he had recommenced making guitars recently. [101] He was previously a drum player but had not gone back to playing drums. Although he still played guitar, his ability to do so had been affected by the shoulder and rib pain. The weight of the electric guitar would be too much after a few minutes, rendering him unable to play it standing up. [102] 8. The Plaintiff stated that he has difficulty making a full fist with his right hand, mainly due to stiffness in the two fingers which occasioned nerve damage. [103] This caused him to have difficulties with gripping and reduced grip strength. He stated that he had problems with his balance, losing his equilibrium. [104] This occurs every 1-2 weeks. He does drive but not much longer than half an hour due to soreness in the shoulder and the back. [105] He stated that he had difficulty climbing up and down stairs. [106] He favoured his right leg to push up and tended to use his left arm on the railing. He had regular headaches: several a week. [107] The intensity of these headaches ranged from a good solid headache to a virtual migraine. [108] 9. Currently, the Plaintiff complained that he suffers from a limitation of movement in the neck on a regular basis, affecting both driving and sleeping. A lack of rotation in mobility in the right shoulder with associated pain. Pain in the thoracic spine is constant, the spine is very stiff and he does not get a lot of movement from it. He stated that any activity would aggravate it. [109] Even lying or sitting in one position for a long period of time would aggravate it. He stated that he had pain in the right and left elbow. [110] Insofar as the pelvis is concerned, prolonged sitting or lying would affect the pelvis, depending on the hardness of the chair or surface. [111] 10. The Plaintiff described tingling-like pins and needles sensations in the top of the ring and little fingers and he described a feeling of numbness. [112] He described himself as using predominantly his thumb, index and middle finger of the right hand. [113] With the other two fingers being rolled over just to keep them out of the way. 11. Insofar as the ribs are concerned, he stated that it was quite painful when twisting. [114] He has pain in the right clavicle. [115] The frequency of that pain is dependent on it being cold, if he had a knock or if he moved in the wrong way. Repetitive movements of the right arm would increase pain in the right scapula, particularly when trying to carry a bag or a bottle of milk or driving with arms raised. [116] Insofar as his wrists are concerned, the Plaintiff stated that he had restricted movement in the wrist in certain directions. [117] He stated that he used to use a full hand to type but now tends to use two fingers and a thumb. [118] He stated that he had difficulties writing [119] and had a difficulty with his body temperature, becoming hot in any temperature and sweating profusely. [120] 12. The Plaintiff noted in evidence that he was still having problems with his breathing. [121] He stated that he had a shallow breath, that he could not take deep breaths and that his breathing was into the diaphragm as he did not get much movement in the upper chest. He stated that he suffered from shortness of breath with mild exertion and had a spasm where he would at random need to catch his breath. [122] 13. The Plaintiff gave evidence that, prior to the accident, he had what he would describe as a "photographic" memory [123] although he later qualified it by saying "Not completely photographic but pretty good." He stated that, following the accident, his memory was "terrible. Short-term wise, yes." [124] He elaborated as to the difference between short-term and long-term memory and stated:- "It's making and recalling new memories. I can remember, you know, things that happened in my life and events, people prior to the accident. I struggle with remembering things that are told to me or that I've read post the accident, remembering people, names, things that I've said. I've been told that I've told the same stories twice at family gatherings." [125] 1. The Plaintiff gave evidence as to the impact which this had on his work. [126] He gave evidence that one of the factors which prevented him from going beyond working three 5 hour days and one 6 hour day when he resumed employment was a combination of pain and cognitive fatigue. [127] 2. The Plaintiff's complaints were supported by his wife. 3. In particular Mrs Parker gave evidence of the Plaintiff's loss of short-term memory following the accident. She described the difference since the accident as follows:- "Immensely. He was - never kept, never used to write lists or anything and now you know we've got some apps that help him and he relies on those. You know, I mean he forgets to take his tablets. We've got alarms set to take his tablets because he forgets and I can walk in the door and tell that he hasn't taken it. So we've got again, you know, pill boxes with the set days and, yeah, it's just immensely different." [128] 1. Michael Whelan was a close friend of the Plaintiff who had known him since their days as students at Newington College. The evidence that he gave was that he was very close to the Plaintiff, having studied at university together, doing the same course and subjects. He described the Plaintiff as being smart with high intellectual horsepower before the accident. [129] He was asked whether he had tried to talk to the Plaintiff following the accident about science or something of that nature, being neutral but complex. His response was as follows:- "I mean, it's been four years so I think probably after his accident we probably, I tried to pick up our relationship in the same vein as it once was, but very quickly kind of recognised that he didn't have the, I don't know what the term would be. He didn't have the stamina or even the engagement or insight, or was unable to, seemed unable to partake in conversations of that kind of level. So they slow very quickly, desisted." [130] 1. He stated that the Plaintiff was very recluse and often disengaged. He stated that he appears to have lost confidence and his focus is often negative. [131] From the physical perspective he described the Plaintiff being "broken" and "being in pain all the time." [132] 2. The Plaintiff attended primary school in Wagga Wagga and was educated at Newington College for his secondary schooling. In 1986, he completed his Higher School Certificate with a high grade and thereafter entered Sydney University where he completed degrees in computer science and pure mathematics, minoring in psychology. Education and Work History 1. From 1990-4, he worked at "Monitor Money" as a graduate programmer. From 1994-6 he was employed at Advanced Bank as a senior systems analyst. In 1996 he obtained additional qualifications at "object orientated design". Between November 1996 and February 1997, he undertook various contractor roles, including a business analyst role with "Bridges". Between March 1997 and July 2000, the Plaintiff commenced his own company "Maxx Computer Systems" which was a small software development company specialising in the creation of small to medium size systems. In 2000, he undertook the "foundations of leadership" course at McGinness Partners. In 2002, he undertook advanced management training at McGinness Partners. Between July 2000 and 2003, he was employed as a technology architect/manager at IPAC Securities. In 2004-7, the Plaintiff was employed as a business technology manager for Asia Pacific Premier Global Services. In 2005, he undertook a course in managing culture diversity with IIR Executive Development. In 2005, he undertook a course in managing virtual teams at IIR Executive Development. In November 2007 until June 2010, he was employed as a senior consultant with OBS. In 2009, he undertook a course in "real-time speaking". He was employed by AIMIA as a business solutions team leader and business analyst in July 2010 to September 2013. The evidence was that he worked on average a 40-45 hour week. 2. He stated that his role was that of a senior business analyst and at the time of commencement, he was earning in excess of $100,000.00 per annum. He described AIMIA as a loyalty marketing company which has systems which could provide for customer loyalty schemes. He indicated, however, that the company provided services which ranged the full lifecycle from consulting through to the full implementation of management. He described that with Qantas they provided a product redemption shop for frequent flyer points, whereas with the Commonwealth Bank of Australia they ran an operation which included call centres and, in other instances, they provided only consulting services. He described his role as the interface between the business people who wanted an amendment or an enhancement to their product or a new product and the IT team. His job was described as highly technical, involving significant communication skills. He stated that he enjoyed being part of making technology understandable to business people and trying to get to the core of what business people were asking for and form a solution that was efficient and creative, bringing a new edge to a company's product. 3. In the role described, he reported to Mr Gavin Allen. Mr Allen gave evidence in the proceedings and described the role performed by the Plaintiff. [133] He described the Plaintiff as definitely one of the more technical business analysts with whom he had worked. He stated that he had superior communication skills and he was generally very happy with his work. He stated that there was a pay review period in relation to the early part of 2011, January/February, and Mr Parker's salary was adjusted with a $15,000.00 increase. He stated he recommended the pay rise, which was unusually high but was purely merit-based. He stated that Mr Parker performed extremely well and he was being given more and more responsibility. In relation to the role which Mr Parker fulfilled, Mr Allen stated that:- "One of the key things a business analyst needs to do is understand all the requirements from the business as well as the capability or feature set of the technical implementation. For them to be able to do that they have to keep a lot of information in their head at any one time because it is very common for business to come up with random questions at random times and to be able to respond to those quickly is very important." [134] 1. Insofar as the need for regular attendance at employment, Mr Allen stated:- "As I said, questions come up all the time from business so it is important that someone is there to respond to those questions when they come up because it can involve costly delays if those answers can't be found quickly." [135] 1. Mr Allen expressed the view that it was obvious that Mr Parker had the capability and aptitude to progress to a more senior level than he was at the time. He stated that if he had to pick any person to step into his shoes when he left the company in August 2011, it would have been Mr Parker. Nevertheless, Mr Parker indicated in cross-examination that he was not part of the management of the company. [136] He indicated that, insofar as part-time work in the industry was concerned, in his experience he had never seen anyone working or employed in an IT role for 21 hours or 12 hours per week. [137] He conceded, however, that it was possible that contractors might work these lesser hours. 2. As noted earlier, the Plaintiff returned to work on a limited duties basis on 20 October 2011. He remained there until 27 September 2013. The evidence of the Plaintiff in relation to carrying out limited duties at work was that he had a staggered return to work which had been planned in consultation with his then general practitioner, Dr Ryan. He stated that he had started by working three non-consecutive days at 4 hours per day, of which one day was in the office at Pyrmont and two were from home. Initially, he caught taxis and got lifts with his mother-in-law to his office but, subsequently, in early December 2011, he was able to return to driving. His duties in employment were, initially, to catch up on things which had happened during the time in which he was absent. He indicated that he was working with new staff as well and his task was to understand those persons and try to get his head around the business. He started off with non-deadline related work and then gradually reintroduced himself to his old tasks and parts of the role. [138] Eventually, the number of days in the office were increased and the Plaintiff worked for 15 hours, being three 5 hour days before proceeding to 16 hours, being 4 hours per day for four days, then to 20 hours on four days. [139] 3. The Plaintiff gave evidence that he attempted to work four days at 6 hours per day but did not make a week of that and had to regress to four days working 5 hours per day. He subsequently tried working three days at 5 hours per day, with a 6 hour day on Tuesday but was never able to make it to the end of a 6 hour day. [140] He described the reasons which prevented him from getting to the end of such a day, being the combination of pain and cognitive fatigue. [141] During this period, Mr Parker conceded that he was taking opioids and anti-depressants. [142] 4. In terms of carrying out the hours which he described, the Plaintiff stated that he struggled initially. He stated that he had a lot of difficulty being able to read and comprehend the documentation which he was using to try to catch up and there was certain new technology which had been put in while he was away. [143] The Plaintiff's evidence as to his memory was referred to earlier. He stated that he learned very quickly that if anybody asked him to do something, he would always request an email because he could not remember the request subsequently. [144] He stated that his employer was aware of the extent of his memory deficit. [145] 5. The Plaintiff's evidence was that, following the accident, he was not as confident as he had been. He did not feel comfortable because he could not remember things well and did not feel comfortable addressing situations, especially off the cuff. He stated that previously he had had facts and figures ready to be available but following the accident he was "a lot more quiet. I did not drive, I used to essentially drive meetings." [146] 6. The Plaintiff described himself as not having the same sense of resilience and that, if confronted with differing opinions, he was not as confident at arguing a point. [147] 7. At the end of 2012 and the start of 2013, the Plaintiff stated that he found himself in a high pressure situation where there was a lot of work happening and a very large project was underway. His evidence was that there was a lot of pressure to deliver the project and service existing clients as well. His evidence was that he did not cope very well with the pressure but was doing the best he could. He stated that he had never returned to the creative component of the work, designing new systems. He said that there was an expectation that this would continue but because people were very busy and he was not there often enough, he did not have the energy to be pushing them to work on these things. He described the period between 2012 and 2013 as:- "It was the consistent pressure that was going on across the department and just the feeling that I was, sort of, being expected to do more than was actually possible in the time I was working." [148] 1. He stated that into mid-2013 he approached the head of IT to inform them that he had too much on his plate for the amount of hours he was working. His perception was that there was an expectation for him to carry a larger workload in the space of 21 hours. [149] The Plaintiff's evidence was that when he was at work he could start off well but then tend to fade a bit, have some respite over lunch and then into the mid-afternoon he "was done". [150] He described this as the consequence of fatigue. [151] 2. He described himself as depressed and very stressed. [152] 3. Concerns about his performance began to materialise. [153] He was the head of the team at the time and in September 2013, he had a meeting with the head of IT. He described this meeting in the following terms:- "In short form, the..(not transcribable)..certain tasks not being done, the IT, head of IT had removed a particular task from my team about three months prior, said I was to have no involvement in that which I stayed out of. Those tasks weren't being done. That last week of September the people who were supposed to be doing that had left and it was thrown back at my direction. At a executive meeting questions were asked as to why these things hadn't been done at which I didn't really have an answer because I hadn't been involved. After the meeting the head of IT, myself and two other members of the IT team were there behind and started accusing me of dropping the ball on this task that she told me not to do and berating me, my performance and at that point I snapped and argued back at her. In the heat of the moment, told her that I resigned and left the building." [154] 1. The Plaintiff thereafter felt let down by the criticisms, said he quit and left the building. When he got into the car to drive home, he called his wife who stated that at this point he burst into tears. [155] He then went to see Dr Barry, following the retirement of Dr Ryan. Whilst at Dr Barry's surgery, he contacted his employer and informed them that his resignation was in the heat of the moment and that he wanted to rescind it. Dr Barry nonetheless completed a work certificate stating that he was not suitable for work for a period of time. 2. The Plaintiff stated that four weeks after that event he went on a holiday and following his return he received an email which was Exhibit G in the proceedings. That email noted that a WorkCover certificate had been sent from Dr Barry which signalled that the Plaintiff was fit for suitable duties for 4 hours on two days per week from 11 November. On that basis he was informed that it was very difficult to provide suitable duties and he was signed off from work. 3. The evidence of the Plaintiff was that the reduced hours were designed to reintroduce him slowly into the workforce. [156] He stated that he wanted to go back to the workplace and was prepared to increase his hours beyond the limitations in that email. He stated that he made those aspirations known to the rehabilitation provider, however, did not receive any positive endorsement from his employer. [157] 4. In terms of the Plaintiff's employment capacity post-27 September 2013, the Defendant drew attention to the fact that the Plaintiff had previously worked 20 hours per week yet following his revoked resignation, submitted certificates from Dr Barry dated 27 September 2013 and 11 October 2013, indicating no capacity to work for two weeks each. [158] When the Plaintiff was questioned about the change in his capacity to work and his not being able to continue, he stated in cross-examination that he could not have gone back to twenty hours per week "because I was an emotional wreck, I was suicidal." [159] 5. He conceded that he had not consulted a psychiatrist but had claimed that he discussed it with Ms Bousfield who as noted earlier he said he commenced seeing in February 2013. As noted earlier there are no direct reports from Ms Bousfield before me. The limited references to correspondence from Ms Bousfield in a report of Dr Langeddecke dated 12 June 2015 does not include any references to suicide. [160] The Plaintiff stated that he did discuss this with Dr Barry, his general practitioner. At first, he stated that he had told Dr Barry that he had seriously contemplated it. [161] When pressed about what he said, he stated "I am thinking about committing suicide", although questioned whether those were his exact words, he said words to that effect. He stated that he did not remember discussing the methodology of it with Dr Barry but claimed that he did tell Ms Bousfield. 6. On 4 October 2013, Dr Barry wrote to Ms Bousfield stating:- "Thank you for seeing Stuart Parker, aged 45 years, for an opinion and management of his depression/anxiety associated with chronic pain and feelings of reduced capacity following an MBA on the way to work in 2011. I have completed a DASS21 in which he had a level 21 for depression (extremely severe), 15 for anxiety (extremely severe) and 13 for stress (severe). He does not have suicidal ideation. I have increased his effexor to 225mg daily." [162] 1. Mr Parker was heavily cross-examined regarding his evidence of speaking to Dr Barry regarding suicide. Ultimately he stated that he thought he spoke to Dr Barry because it was at that point that he did a standardised depression test. [163] 2. Mrs Parker gave evidence that she attended the consultation with Dr Barry on 27 September 2013 on which occasion she stated that there was a discussion regarding suicide. Her evidence was as follows:- "Q. As best you can can you recount how the conversation went? A. Dr Barry was very concerned about Stuart. He asked him if he had thought about following through with it right then and Stuart looked at me and said, "I couldn't do it to Jodie." He, Dr Barry, asked him to put the crisis number in his phone. He asked-- Q. Did he do so? A. Yeah, he did. I also have through my work some 24 hour counselling services which I remember telling Dr Barry that family members were able to access so I said you know I've got that number as well and he talked about, do you feel support? You know asked him the questions about whether he felt supported, whether he'd had enough support around him to help him through this time. He asked him to come back, I think, in a few days. I can't remember the timing." [164] 1. Mrs Parker was cross-examined in relation to her evidence and stated that her husband had said that he had looked up the most effective ways of suicide. [165] She stated that Dr Barry was more concerned about making sure that Mr Parker was alright then and there and had no recollection of discussion of the methods of him carrying out a suicide. [166] 2. In re-examination the Plaintiff stated that he completed a questionnaire in a form compiled by the Black Dog Institute. This document was marked as Exhibit G. [167] The document recorded that, amongst other responses, the Plaintiff almost always felt that he could not seem to experience any positive feeling at all, feeling that he had nothing to look forward to, felt downhearted and blue, was unable to become enthusiastic about anything, was not worth much as a person and felt life was meaningless. The Plaintiff did not allege suicidal ideation in his Third Amended Statement of Particulars, filed in court on 20 July 2015. Damages Non-Economic Loss 1. I accept that the Plaintiff also suffered and will continue to suffer the effects of significant physical injuries including pain, discomfort and restriction of movement arising from a multi-trauma accident as well as associated fatigue, depression and anxiety. I also accept that the Plaintiff does suffer from memory impairment, as supported by evidence from Ms Parker and was further demonstrated through the various tests that were undertaken by neuropsychologists. I am satisfied that this has been caused through circumstances of the accident but also due to opioid use as described .earlier including arising from the accident but also due to opioid use. On the basis of Professor Cohen's evidence I accept that medication is the major contributor to the Plaintiff's poor concentration and short term memory loss [168] as well as his perspiration. [169] 2. The Plaintiff has contended that non-economic loss in the sum of $375,000 is appropriate. The Defendant has proposed $250,000. In my view, the appropriate sum is $300,000. Past Economic Loss 1. I do not accept that on 27 September 2013, when the Plaintiff saw Dr Barry, that he was suicidal. Whatever thoughts may have passed his mind, it was clear even from Mrs Parker's own evidence that the discussion was only prompted by questions raised by Dr Barry, who ultimately concluded in his referral a week later to Ms Bousfield that Mr Parker did not have suicidal ideation. Bearing in mind the purpose of the referral one week after the consultation on 27 September 2013, it would be difficult to contemplate how such an important issue, if it truly surfaced, would not have received mention in the letter of Dr Barry. In submissions, I asked the Defendant's counsel what Dr Barry's description of the Plaintiff's condition meant in terms of his work capacity. Mr Renshaw responded as follows:- "Yes, well, people often do. Vast members of the Bar work with enormous depression. In fact, if Your Honour believes what flows from the Bar Association then 95% of them are suicidal but I am only joking in respect of that. Probably only 60%, Your Honour. But you can work with depression, there is no disability there but the Plaintiff ignores this…" 1. The Defendant did not appear to take issue with the balance of the diagnosis in Dr Barry's report of 4 October 2013. In my view, it supports his inability to work at that time well. 2. In forming my view this view I have taken into account the caution expressed by Basten JA in Mason v Demasi [2009] NSWCA 227, however, the issue of suicidal ideation was not raised in any other medical reports or psychologists reports presented in evidence. It was not part of the Plaintiff's evidence in chief. It did not result in an immediate referral on 27 September 2013 by Dr Barry. In the circumstances, I accept the veracity of the comments made in said letter of 14 October 2013. 3. Dr Barry's certificates of capacity accept that the Plaintiff did have a capacity to work 4 hours for two days per week from 11 November 2013. From 26 November 2013 to 21 November 2014, he was certified fit for 4 hours per day for four days per week. Thereafter he has been certified fit from 18 November 2014 to 28 July 2015 for 3 hours per day for four days per week. [170] 4. Professor Cohen's report, dated 5 June 2014, is sought to be relied upon by the Plaintiff as indicating an opinion which should be afforded significant weight as he was multidisciplinary and treated the Plaintiff over a period of years. It was pointed out that the Defendant declined an opportunity to have him called. [171] Reliance is also placed on the certificates of Dr Barry [172] the most recent of which states certifies him fit for 12 hours work on three days. [173] According to Professor Cohen this certification was at the Plaintiff's own request. [174] 5. Since employment at AIMIA, the Plaintiff engaged himself in various job seeking endeavours in conjunction with his rehabilitation provider and through automated email alerts with Seek and Adzuna. [175] The Plaintiff's evidence was that he had applied for about half a dozen jobs and had only received one actual job interview which did not progress. The reason he gave was:- "…After discussion with the employment consultant he came back with a rate that we thought was below my, well below my market rate but commensurate with the size of the company and the role and my condition." [176] 1. The Defendant conceded that it was not alleging a failure on the part of the Plaintiff to reasonably mitigate his loss albeit that it takes issue with the Plaintiff's present treatment regime. [177] 2. Overall in light of the Defendant's concession that failure to mitigate is not alleged and based on the evidence of the Plaintiff's treating doctor's I am satisfied that it is appropriate to compensate the Plaintiff for loss of earning capacity on a total basis to date. Whatever residual capacity the plaintiff may have had in the past, I accept that it would have been extremely difficult for him to exercise it in light of the circumstances described. [178] 3. Based on Exhibit M, the Plaintiff contends that I should allow the sum of $1,580.00 per week for the next 112 weeks from 1 April 2011 to 25 May 2013 and thereafter at $1,700.00 per on the basis that the Plaintiff would have received an increase of at least $120 in the period thereafter to date. 4. The Defendant contends calculations should be based on a lower figure of $1,530.00 per week. The Defendant's figure does not reflect the increase in salary to $115,000.00 which the Plaintiff appears to have received on 1 April 2011 and which was the subject of evidence before me 5. On this basis I accept the Plaintiff's calculations of $1,580.00 net per week which, in any event, appears to be lower than what appears to me to be demonstrated in Exhibit M. I propose to allow that sum as claimed by the Plaintiff, together with the higher figure of $1,700.00 which broadly corresponds with CPI adjustments during the intervening 2 year period. This results in a figure of $176,960 for the first 112 weeks and $204,400 for the subsequent period which, to date, is 120 weeks. The total is an amount of $380,960 to date. The parties agree that the sum of $59,667.52 should be deducted on the basis of the net amounts paid for by the employer to date (as opposed to the workers compensation insurer). This leaves the net amount for past economic loss in the amount of $321,292.48. 6. Past loss of superannuation at 11% comes to an amount of $35,342.17. Future Economic Loss 1. Pursuant to s 126 of the Motor Accidents Compensation Act 1999 (NSW):- "(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies 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. (2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted." 1. In Macarthur District Motor Cycle Sportsman Inc v Ardizzone [2004] NSWCA 145, Hodgson JA stated at [11]:- "Most likely here dies not more likely than not but more likely than any other scenario." 1. The question of what capacity for work the Plaintiff would have in the future was a significant point of difference between the parties. 2. Although the Statement of Particulars filed in Court contends that the Plaintiff has lost 75% of his capacity. The Plaintiff's counsel contends that he is an unattractive candidate for employment in that he is disabled and there is now a large gap in his resume with his skills becoming redundant. 3. It was submitted that Mr Parker would soon face age discrimination, particularly in the IT job market and has vastly reduced powers of memory and concentration. It is further submitted that he suffers from chronic fatigue and must sleep twice a day. He is in chronic pain, requiring constant medication and would be an unreliable worker on whom an employer could not depend upon. His physical and cognitive limitations are such that, as contended, that the Plaintiff's past economic loss should be allowed in full. Based on Exhibit M, the Plaintiff's claim is for the sum of $2,000 per week from April 2011 to date which includes an amount sought on the basis that the Plaintiff had prospects of advancement to a more senior level. [179] This contention was sought to be supported on the evidence of Mr Allen who stated that, as of August 2011 when the Plaintiff left AIMIA, if he had to pick anyone to step into his shoes then he would have recommended the Plaintiff. [180] Mr Allen's evidence was that the Plaintiff did have the capability to progress to more senior levels with improvements in salary. [181] 4. I have already found that but for the injury the Plaintiff would have earned $1,700 from 25 May 2013 to date. 5. The Defendant's case in relation to the loss of earning capacity rests heavily on the view expressed by Dr Pascall. Dr Pascall examined the Plaintiff on 20 June 2014 and reported on 30 August 2014. [182] While she supported much of the Plaintiff's orthopaedic and psychological treatment, she regarded the use of analgesia as "more contentious". [183] In this respect she stated:- "It is the analgesia that may be more contentious. Opioids for chronic pain is considered these days to be counter-productive, taking the person further and further away from being able to establish comparatively normal functioning. The opioids may actually be heightening the perception of pain rather than nullifying it. Similarly, Lyrica, a pain modulator, most effective in use for nerve pain, may not be playing any role for Mr Parker as there is none of his pain that seems to be arising from nerve damage. His complaint is about thoracic pain, whether spinal or from the fractured ribs, not a neuropathic pain for which Lyrica may be indicated. Overall, I do not agree with Professor Cohen's strategies regarding cessation of physical therapies and concentrating on avoidance of pain. There appears to be in the recent scientific literature discouragement of use of medications over the use of non-medication as a means of limiting pain because of the changes in the neural systems that medications cause and the difficulties in reversing these changes. It locks the person into a permanent cycle of pain and medication and has been shown to be not as effective as other means of dealing with chronic pain. Whilst a physical strengthening program may engender some pain, it would need to be under the supervision of an experienced trainer or exercise physiologist to understand the limitations of the person and whether the person is too highly attuned to the pain experience despite the body musculoskeletal system working in a normal fashion. I would have promoted the strengthening program and possibly modified the exercises according to Mr Parker's needs, but the avoidance of any physical program is, in my opinion, inducing a state of chronic invalidism." [184] 1. In evidence, Dr Pascall stated:- "People who are on heavy doses of opioids, and opioids in generally, have diminished cognitive function and diminished tolerance for the normal adversities that you might expect to occur in a workplace, so that they become less functional and much more difficult to rehabilitate. The additional problem arises because of the hyperalgesic effect that occurs with opioids, not only demanding higher doses of the opioid to achieve the same relief, but actually accentuating the sensation of pain, so that people become very attuned to whether they're experiencing pain and find it intolerable. This can be a direct effect of the opioid itself rather than any, sort of, injury or pathology the person might have. People on opioids are difficult to rehabilitate, and the research seems to show us across populations – the epidemiological research – that they, as a group, as a large group, do say that they experience less pain, but they are no more functional than the group that are not on the opioids and are suffering a greater level of pain. So the reduction of pain does nothing in improving the person's ability to function either in the home life or in the working life." [185] 1. Dr Pascall also conceded the effects of opioid medication were depression, agitation, irritability, anxiety, sleeplessness and mood disorder. 2. At T 194.43, the following exchange took place:- "Q. Am I right in saying that, in terms of treating people with these problems, from the rehabilitation point of view, there are two schools and one is the analgesic course and the other is a rehabilitative course by strengthening exercises? A. Yes, it is, and also associated with psychological interventions to help a person cope with things that seem to them counterintuitive because, intuitively, we feel that if we're in pain we shouldn't use that body part, if it's in pain, but the research has shown that that applies in the acute situation, that is, in the immediate times after the injury, but six months and certainly 12 months or more later, the injury has healed and you are no longer dealing with an injury. The intuitive feeling of avoiding pain is not productive in enabling you to function better. So they very often, as well as physically improving their strength in their muscles and the way their body functions, need to psychologically alter the way they think about pain. It is better to combine these two aspects to keep the person on track and keep them well motivated, rather than just restrict it to one aspect of dealing with pain. Q. So in a person like the plaintiff, from a rehabilitative point of view, what sort of regimen would improve his situation? A. Well, I understand he's been treated by a psychologist, so I don't know where that's gone because he hasn't improved his ability to function to the point where he would be considered capable of functioning normally in his community. So I don't know what - I mean there are psychologists and psychologists and I haven't got any reports from that one to say well, they were dealing with it appropriately. Apart from that he did tell me he tried a strengthening program but it started causing him pain. So instead of analysing what was the exercise that was so painful and whether you could improve that by doing different types of exercises he consulted with his pain specialist and they decided that the exercise program would be of no benefit to him. So the types of strategies I would recommend are contrary to the advice he says he's been given. I would certainly recommend an exercise strengthening program under the auspices of a personal trainer who is experienced in rehabilitation issues. It could be a physiotherapist. It could be somebody who has had their tertiary college education in this field. They would analyse his deficits. They would also analyse as he is progressing what's causing him problems. They would look at different ways of dealing with it and ultimately improve his, which I think is a big part of his problem, his dorsal muscle strength to enable him to stand and sit upright for longer periods of time as well as enable him to bend over and bring himself back to the upright position without so much. And they would most likely correct his gait problem as well. So overall I think he would function much better if he had such a program." 1. Dr Pascall indicated that, without details of the Plaintiff's psychological treatment, it was difficult to work out what the psychological barriers would be and knowing how difficult it would be to overcome these barriers. However, assuming that there was no particular difficulty in overcoming such barriers, he expressed the view that the Plaintiff had 100% likelihood of returning to part-time employment and 80-90% likelihood of returning to full-time employment. [186] 2. Dr Pascall was heavily cross-examined in relation to her view. [187] She reiterated that the Plaintiff was less functional now than when he had started with Professor Cohen. [188] She conceded that the difficulties of rehabilitation on the basis of the Plaintiff's medical reports and opinions being correct. [189] In this respect she acknowledged that it was complex and intended to be long. [190] 3. Whilst the Plaintiff has stridently suggested that Dr Pascall's views should not be accepted, Professor Cohen himself has expressed reservations as to the long-term use of opioids and has, at various times, attempted to reduce the usage. 4. It is noteworthy that the Plaintiff was able to recommence work on a limited duties basis, from 20 October 2011 and continue until 27 September 2013. During this period, there was some increase in hours. The circumstances of that work have been earlier described. 5. Notwithstanding the length of time which Dr Pascall's views were known to the Plaintiff, no further report has been obtained to respond to the criticisms and support the treatment Professor Cohen has provided. The limited nature of the evidence from Dr Barry and Ms Bousfield further limits the Court's ability to have a full appreciation of the Plaintiff's circumstances. Whatever forensic choice the Defendant took not to require Professor Cohen for cross-examination when the opportunity was provided, it does not alter the state of the evidence. In my view, Dr Pascall's opinion on this issue has some persuasive force, although I do not accept that the Plaintiff will ever return to full-time employment or to employment of the nature which he previous performed. In my view it would be reasonable to allow a period of 2 years for him to reduce his opioid use and commit to the strengthening program that Dr Pascall has recommended. This would assist him to transition to the kind of work which the Plaintiff's own reports support. 6. Dr Zeman, in his report of 20 November 2014, stated that Dr Davis, Ms Myburg and Ms Carter made restrictions on the Plaintiff's physical capacity which, in his view, was considered to be excessive. Further, he stated that the assessments were done in 2012 when maximal recovery had not occurred and the impact of depression and pain as limiting factors were not adequately considered. Having said that, he acknowledged that the Plaintiff's psychological condition may limit his return to work unless controlled. [191] 7. Dr Jungfer, in her report of 19 August 2013, recommended review of the Plaintiff's pharmacotherapy. At a time proximate to the Plaintiff's ceasing of employment, she expressed the view that the Plaintiff was capable of paid employment and what was impacted upon was his flexibility and resilience regarding employment as he was less employable on the open market. [192] 8. I am satisfied on the evidence that the Plaintiff would have worked until the age of 70 but for the accident. I am further satisfied that he would have progressed as he aspired to an executive level as Chief Information Officer. [193] Mr Allen gave evidence that, at the time of the accident, it was obvious to him that the Plaintiff had the capacity to progress to a more senior level; albeit that Mr Allen himself was not in a managerial role. 9. The evidence of the Archangel Job Markets Australia Survey 2012-13 for Chief Information Officers shows that in the average weekly full-time earnings for a Chief Information Officer (all ages) was $2426.00 per week which is the equivalent of $1848.00 net. [194] Adjusted for inflation by CPI increases, this would be the equivalent of $1932 net. In my view, but for the accident, this represents the sum which the Plaintiff would most likely have been earning from hereon. The job market's survey referred to above indicated that those over the age of 45 hold 45% of the jobs in this area. 10. The functional and vocational assessment carried out by Ms Myburgh and Ms Carter, psychologist, dated 10 October 2012 stated:- "Given his clear determination to return to work, it is likely that Mr Parker will persevere in his current role for as long as possible. However, due to his injuries and subsequent work restrictions. This would be unlikely to be sustainable in the long term, and when he is forced to seek alternate part-time employment, he will be disadvantaged in the open labour market. Since Mr Parker likely facing early retirement as a result of his injuries and any alternate work he performs to that term is likely to be part-time and of a lower skill level than his current role, or the CIO position he aimed for pre-injury, Mr Parker faces significant economic loss as a result of his injuries." [195] 1. Although that report is nearly three years old, Dr Endrey-Walder referred to it in his report of 22 August 2014 and stated:- "I received from you a Functional and Vocational Assessment Report (27.10.2012), which acknowledges this gentleman's difficulties at the time in relation to a whole host of physical activities and also referring to chronic pain disorder, adjustment disorder with depressed and anxious mood, cognitive disorder secondary to brain injury, has problems that would affect this gentleman's employability. It is suggested that such activity as, for example, IT support technician, would be within his capacity over 20 hours a week. I would agree with this." [196] 1. Dr Corinne Roberts expressed an opinion on prognosis from a neuropsychological perspective and stated:- "Prognosis As noted above it is not within my expertise to comment on the prognosis with regard to Mr Parker's physical injuries. With regard to his cognitive functioning, it is unlikely that there will be further spontaneous improvement. However, his ability to make optimum use of the cognitive abilities that he does have may well improve if he is able to benefit from the clinical psychology input both with regard to managing his chronic pain and alleviating his psychological distress. Further consideration of his work environment, the output that he and/or the workplace is expecting of him in a part-time position, and adjustments in terms of pacing himself may also be of assistance in optimising his cognitive functioning." [197] 1. Mr Allen conceded that, in all his time working information technology (which dates to at least 2006) he had not really heard of anyone working in a role for 21 hours per week except "possibly as a contractor" [198] . 2. The Archangel Job Market Analysis 2002-3, [199] indicates that part-time jobs in this area are about 25% of the positions available. Job prospects are described as excellent. Ms Carter, psychologist, in a vocational assessment report of 10 October 2012, stated that Mr Parker informed her that there were no permanent part-time jobs with the current employer, which she found not surprising given that only 10% of ICT business analysts work part-time, she stated:- "It is therefore likely that he will seek alternate part-time work in the foreseeable future. ICT roles with a greater proportion of part-time work (EGI support technicians or ICT customer support officers) have a lower average weekly income, compared to ICT business analysts." 1. The Plaintiff indicated in evidence that he was not attracted to working in a call centre because he could not imagine himself sitting for long periods. [200] In my view, however, he does have the capacity for an ICT support technician role, set out in his own assessment reports referred to above. Ms Myburgh and Ms Carter, indicated that the Plaintiff has the functional ability to perform work for 20 hours per week if self-employed and able to pace around with activities throughout the work day. [201] Such would be consistent with the role of a contractor as referred to by Mr Allen. 2. Viewing the remuneration for an ICT Support Technician, based on the contents of the Job Markets Australia Survey and adjusted for inflation, the associated weekly wage on a net basis will be $1046. [202] 3. Based on this amount I consider that, as a contractor, the Plaintiff would be likely to earn $400 per week. The Plaintiff has had previous experience of self-employment. In my view a significant part of the issues he now confronts arises from his current treatment regime and in particular his use of opioids. He worked for a significant period following the accident and was highly motivated but for the circumstances that led to his ceasing to work. 4. Accordingly, in accordance with my findings I am satisfied that the Plaintiff will more likely improve to the point of being able to exercise his residual working capacity within 2 years as submitted by the Defendant. Accordingly, I would allow a sum of $1932 for a period of 2year which, on the 5% tables (multiplier 99.4), would be $192,040.80, less 15% for vicissitudes being an amount of $163,234.68. 5. Thereafter, I would allow $1,532 per week for 21 years. The 5% deferred multiplier for 2 years is .907. On the 5% multiplier (685.6) this comes to an amount of comes to an amount of $952,657.65 which after deducting 15% for vicissitudes, comes to an amount of $809,759. 6. When combined, the figure comes to $972,993.68. 7. Loss of future superannuation at 13% comes to an amount of $126,489.17 Domestic Care Services – Past Domestic Assistance 1. In respect of past domestic assistance, the Plaintiff gave evidence of the service funded by WorkCover in the days following the accident and his return home. [203] The evidence was that someone came to the Plaintiff's home twice a week for an hour and a half, initially providing personal care and, subsequently, domestic care such as cleaning around the house. [204] Mrs Parker's evidence was that the personal care services lasted for a period of around 3 to 4 weeks, being around the beginning of August. [205] The reason given for the change was that the Plaintiff "wanted his dignity back." [206] As these commercial services were paid for by the workers compensation insurer, the Plaintiff conceded that these amounts were assimilated into the figure for past out of pocket expenses. [207] 2. It was acknowledged, both by the Plaintiff and Mrs Parker, that prior to the accident household tasks were shared to a large extent although there was some demarcation in that the Plaintiff performed outside gardening and handyman tasks as well as packing up after dinner and loading the dishwasher whereas Mrs Parker cooked (with the exception of barbeques). Domestic tasks included attending to the children, shopping, vacuuming, mopping, car-washing, laundry, bathroom cleaning and arranging for quarterly clean-ups. The Plaintiff's evidence as to domestic capacity before and after the accident and Mrs Parker's evidence was broadly consistent. 3. In the case of Mrs Parker, the Defendant called for and tendered a statement that she had prepared, which was Exhibit 3 in the proceedings, it is inevitable in cases of this kind that there would be some discrepancies between it and the oral evidence. 4. Nevertheless, I regard it as broadly consistent both in terms of the time spent and the nature of the duties performed. Mrs Parker conceded in evidence that some of the periods are a bit "blurry". The Plaintiff has conceded case of shopping that this should not be included as it was a jointly performed activity prior to the accident which Mrs Parker now undertakes. 5. The statement also does not include the outdoor handyman work which the Plaintiff previously performed nor the gardening and mowing work which Mrs Parker, according to her evidence, now undertakes. [208] The statement, furthermore, was confined to the work which Mrs Parker performs at the current residence. 6. Dr Davis, in his report of 10 October 2012, noted that the accident had had a profound effect on all spheres of Mr Parker's life including activities of daily living and his ability to enjoy life's general amenities. [209] Dr Davis recommended that a formalised home needs assessment should be undertaken by an appropriately qualified and experience occupational therapist. 7. That assessment was carried out on 7 February 2013 by Injury Access who provided a report dated 28 April 2013. [210] The report noted in relation to the period during the Plaintiff's stay at the Royal Prince Alfred Hospital and Metro Rehabilitation Hospital was about 13 weeks and that the domestic activity which the Plaintiff had performed on his behalf by Mrs Parker totalled 555 minutes including 60 minutes of shopping. When the latter is deducted it gives the equivalent of 8.25 hours, being the amount provided by Mrs Parker in paragraph 12 of her statement in Exhibit 3. Whilst I note that the report of Injury Access referred to the need for personal and attendant care services as well as child care assistance, no claim in this regard was made in the Amended Statement of Particulars possibly because it was being covered by the workers compensation insurer. 8. During the period from June to August of 2011, the report also documents some personal care needs which were attended to in part by Mrs Parker were the subject of her evidence. This was not set out in Exhibit 3. What is recorded is that from mid-June to the date of the report, 7 hours of domestic assistance was provided excluding shopping and 12 hours child care. This is consistent with Exhibit 2 except that from March 2012 until 10 February 2014, the Plaintiff asserts that the needs for child care dressing, bathing and supervision increased by 3 hours per week to 15 hours. Despite the evidence in exhibit 3, I am not satisfied that any extra hours were incurred. 9. Mrs Parker's evidence was that as the children matured they were able to do more for themselves. [211] Furthermore in cross examination she conceded that in terms of child care dressing, bathroom and supervision from 2012 to present she was doing probably seven hours that the Plaintiff was previously doing. When the variation from her statement was put to her she stated that she was confused and did not hear the word "supervision" [212] . 10. Dr Endrey-Walder, in his report dated 22 August 2014, supports the view that Mr Parker remains significantly restricted, especially with activities that require him to elevate his dominant upper limb above the shoulder and requires him to lift weights beyond 6-8 kilograms. He noted that the Plaintiff has no capacity to be useful in the backyard for which he will need ongoing help and assistance, likely paid assistance in the long term. [213] 11. Dr Pascall, in her report dated 30 August 2014, stated:- "Apart from the heavier tasks, which might include lifting his son, there is no reason to suppose that he could not participate in his family life to a greater extent than he is currently doing. He could, for instance, take his son and his friend to school and pick them up, if not pick up his daughter as well from day care. He could be participating more in the household chores. There is no reason he could not do the laundry for the family and a good deal of the family shopping. He could do most of the cleaning tasks in the household if he chooses to do so; he may need to pace himself through heavier tasks, such as vacuuming and carry that out over several days, but there is not routine household task which is not within his capacity." 1. Dr Zeman, in his report of 20 November 2014, stated that Mr Parker does not require any personal care, attendant care or nursing care as a result of the accident. He acknowledged, however, that the Plaintiff would benefit from assistance for heavy domestic, handyman and gardening activities. He would estimate this at 4 hours per week after the provision of simple equipment such as a laundry basket, kitchen trolley, low-access clothes dryer and washing machine. [214] 2. I prefer to accept the report of Dr Ting, supported as it is by Drs Davis and Endrey-Walder. Dr Ting's report was a thorough analysis and was broadly consistent with Mrs Parker's evidence. 3. In McConachie (t/as Willancorah Pastoral Co) v Pack [2004] NSWCA 148, the Court of Appeal rejected a mechanical approach to the assessment of voluntary domestic assistance. Stein AJA stated at [20]:- "20 The written submissions of the appellant take on an air of unreality. They express a mechanical and arithmetic approach to the calculation of gratuitous domestic care services which the subject matter will not easily bear. As Foster AJA said in Werner v Krahe [2002] NSWCA 168 at [27] precision is impossible in this area and the question is largely one of impression 1. The Plaintiff's claim is 14 hours per week in total. [215] It is put that this involves some discounting although there also appears some averaging. Nevertheless I did not understand it as being put that the Plaintiff failed to meet the statutory thresholds at any point. [216] 2. Consistent with the decision in McConachie (supra), I propose to allow 8 hours per week for the first 12 weeks after the accident. This takes account of the period during which Mr Parker was at the Royal Prince Alfred Hospital and the Metro Rehabilitation Hospital. The figure discounts the component of shopping which has been referred to earlier. Allowing 12 weeks of 8 hours per week at the statutory rate of $25.68 comes to an amount of $2465.28. 3. Thereafter I am satisfied that 7 hours of domestic care was incurred as well as 7 hours of domestic services to the Plaintiff's children [217] consequent to the Plaintiff's loss of capacity. In each case I am satisfied that the threshold requirements of s 141B of the Motor Accidents Compensation Act 1999 (NSW) and 15B of the Civil Liability Act 2002 (NSW) have been met. 4. Accordingly from 24 June 2011 to date I find 7 hours per week domestic assistance under s 141B of the Motor Accidents Compensation Act 1999 (NSW) and 7 hours per week services under s 15B of the Civil Liability Act 2002 (NSW) as having been incurred. Allowing this at the agreed rate of $28.00 per hour, for 220 weeks comes to an amount of $86,240. 5. This makes total past domestic assistance an amount of $88,705.28. Domestic Care Services – Future Domestic Assistance 1. In his report of 28 April 2013, Dr Ting opined that he expected Mr Parker to encounter significant difficulties in work and accordingly be less able to discharge his domestic duties into the future. [218] The quantification of future domestic care which the Plaintiff requires and which he deemed necessary and reasonable, equates to 7.6 hours per week after taking into account a deduction of 30 minutes for shopping. 2. The evidence before me indicated that the Plaintiff and Mrs Parker were in need of assistance to relieve Mrs Parker of the domestic burden which she has had to bear following the Plaintiff's injury as well as some maintenance work that has not been carried out at all. I accept the Plaintiff's submission that some of the services into the future should be provided commercially. This was consistent with the evidence of the Plaintiff [219] and of Mrs Parker. [220] Mrs Parker's evidence, however, was that she would continue to provide gratuitous services previously performed by her husband. [221] The evidence before me indicates that the commercial rate is $42.00 per hour. [222] 3. Looking at the assessment of Dr Ting in table 9 of his report, it seems to me that the services best attuned to commercial provision are those involving cleaning, gardening and home maintenance. This accords with the Plaintiff's evidence. [223] 4. The allowances made for the future by Dr Ting were made at a time as a result of an assessment in 2013 at a time when the Plaintiff was still working. In his report he states that the Plaintiff was expected to encounter significant difficulties at work and hence less able to discharge domestic duties. This situation clearly does not arise at present as the Plaintiff is not working. In light of my findings as to the Plaintiff's future employment capacity any work he undertakes in the future would be at a level and duration which he would be better able to accommodate his functionality. Even so I still accept that it will impact on his ability to perform domestic duties. 5. It is not entirely clear as what basis some of the activities mentioned by Dr Ting were included in his future assessment in light of the qualifications expressed by the Plaintiff particularly as to the gardening activities [224] although there was evidence that professional help has been sought in the past for some pruning [225] and hedging. [226] 6. Although Dr Ting has suggested that the amount of time required for domestic assistance will increase when the Plaintiff reaches 64 years old, It has not been particularised as to how this might occur except by reference to a footnote which suggested that time spent on household work increases with age. There is no evidence which would indicate this is to occur in the Plaintiff's case. Whilst there is some suggestion of an intention both on the part of the Plaintiff and Mrs Parker to move into a bigger house, I do not consider the provision of additional domestic assistance for this purpose to be reasonable and necessary. To the extent that the present accommodation requires maintenance as disclosed in the evidence this is reflected in the assessment including work that has been deferred. [227] 7. Accordingly, I to allow 3 hours of paid care per week for 38 years (on a multiplier of 902) at the rate of $42.00 per hour, which comes to an amount of $113,652. 8. I allow for gratuitous care for 6 hours per week at the agreed rate of $28.00 for 38 years (on a multiplier of 902) which comes to an amount of $151,536. 9. Dr Ting further stated that Mr Parker would require 5 hours per week of child care assistance until his daughter turns 5 years of age and thereafter he would require 3 hours until the child turns 11 years of age. [228] 10. These amounts do not reach the threshold in s 15B(2) Civil Liability Act 2002. In any event there is evidence that the Plaintiff does already attend to providing some transportation and the supervision of children. 11. This makes the total future assistance sum in the amount of $265,188. Out of Pocket Expenses 1. Past out of pocket expenses have been paid for by the workers compensation insurer and were agreed between the parties in the sum of $284,092.00. In addition, a refund for past Medicare payments has been agreed at an estimate of $3,750.00. 2. In relation to the future, both parties submit that this should be accommodated by way of a cushion. The Plaintiff submitted that this should be in the sum of $110,000.00 for future medical and treatment expenses and $15,000.00 for future aids and equipment. The Defendant proposes a figure of $30,000.00 for future medical expenses and nil for future aids and equipment. 3. In relation to the latter claim there is evidence that the Plaintiff has had some modifications carried out to his home which have been paid for by the workers compensation insurer. These were detailed in the Plaintiff's evidence and included some steps to the front door, metal railings placed on the side of the stairs, a seated shower, a bench for the bath tub, a seat for the toilet, a railing in the shower and a bath board. [229] The Plaintiff's submission was that these aids would be required as referenced in the report of Dr Horace Ting. [230] The Plaintiff's submission was that as the Plaintiff and his wife gave evidence that they intended on moving out of their two-bedroom home and into a bigger residence, it would logically follow that there may be a need for handrails and other forms of aid for any other future residence. The Plaintiff's evidence was that he had aspired to a bigger house at some point in his life. [231] Mrs Parker gave evidence that the house in which she and the Plaintiff resided was a 3-5 year house, being their first entry into the market. She confirmed that aspiration to move to a bigger house. [232] I do not accept that the provision of further aids to meet an aspiration for a new house as reasonable and necessary for the Defendant to meet. I do accept, however, that there may be a need for an orthopaedic mattress to promote better spinal alignment and improve sleep as set out in Dr Ting's report. [233] In all the circumstances I propose to make some allowance also in relation to the replacement of existing aids which might require maintenance. Accordingly, I would allow a figure of $7,500.00 in this regard. 4. In relation to future medical and out of pocket expenses, Dr Jungfer has recommended six reviews from a consultant psychiatrist at a cost of $320.00 per consultation, $40.00 per calendar month for pharmacotherapy with a minimum of 2 years psychiatric care and treatment. She also recommended a further twenty sessions with a clinical psychologist to work on cognitions, anxiety and adjustment issues. This was costed at $220.00. Dr Jungfer opined that referral to a consultant psychiatrist would be appropriate should the pain management specialist not be comfortable in terms of treating Mr Parker for mood symptoms. [234] 5. Dr Endrey-Walder recommended a review by Dr Petchell in relation to the Plaintiff's restriction in range of movement in the right shoulder. This was costed at $300.00. In addition he recommended that an MRI scan of the right shoulder be performed at the cost of $500.00. He indicated that the Plaintiff might benefit from hydrotherapy on a regular basis. Insofar as surgery is concerned, he opined that there was a possible need for surgery for the ectopic clacification of the left elbow which contributed to the restricted range of movement. This was estimated to cost in the vicinity of $6000.00 to $8000.00 including physical rehabilitation. In relation to the multiple injuries in and around the pelvis, Dr Endrey-Walder suggested that surgical intervention is not urgent but would eventually be required at a cost of $6,000.00. [235] 6. Dr Davis, in his report dated 10 October 2012, also accepted that it was possible that the Plaintiff may require a release procedure of the left elbow and further that he would almost certainly require ongoing treatment by way of palliative measures provided by physical therapies rather than increased ingestion of medications. He considered that palliative physical therapy should run at cost of $1200.00 per annum. Dr Davis further stated that the Plaintiff will require continual supervision by his orthopaedic surgeon and neurosurgeon in the next three to four years at an estimated cost of $600-$700.00, and also by his general practitioner on a monthly basis at a cost of $65.00 per visit. [236] 7. Gil Myburg, physiotherapist, carried out a functional assessment in relation to Mr Parker on 10 October 2012 in which recommendation was made for further physiotherapy for back and neck. She indicated that the Plaintiff required an exercise and stretch program in order to improve his posture, core-stability and general physical condition and to this end would require 10-12 treatments a year at a cost of $75.00 each. A supervised gym program was also recommended at a cost of $2500.00. 8. Elizabeth Carter, psychologist, in a vocational assessment carried out on 10 October 2012 recommended that the Plaintiff have 12 sessions of psychotherapy at a cost of $218.00 per hour. Ms Corinne Roberts, clinical and consulting neuropsychologist, in her report dated 14 November 2013 stated that it was highly likely that Mr Parker would continue to require medication to assist in pain management and to this end, it was possible that he would require anti-depressant medication but this should be managed by a psychiatrist in conjunction with a pain management specialist. She also indicated that psychological intervention by a clinical psychologist with expertise in pain management would likely be of benefit to the Plaintiff in terms of optimising his psychological state and his cognitive functioning. Unfortunately, the report from Ms Bousfield, the Plaintiff's psychologist, which would have assisted me in determining the outcome of the psychological treatment which the Plaintiff has had thus far. 9. Professor Cohen, the Plaintiff's treating pain specialist, also has not provided a report in relation to the Plaintiff's future requirements. A series of up to date letters to the Plaintiff's general practitioner, Dr Barry, were admitted in evidence as Exhibit J. The reports note that the Plaintiff continued to use Oxycontin, Feldenkrais therapy from Ms Margerie Hellman. The Feldenkrais therapy appeared to have ceased as at the time when the Plaintiff last saw Dr Cohen on 17 June 2015, [237] however the Plaintiff's evidence was that it continued. At Professor Cohen's suggestion, in February of 2014 physiotherapy, which was described as mainly passive and painful, appeared to have ceased. [238] On 11 February 2015, Dr Cohen noted that the Plaintiff was travelling as well as possible and was continuing to benefit from ongoing clinical psychological input. 10. Dr Pascall, in her report date 30 August 2014, stated that the deterioration in the Plaintiff's right shoulder movement was most likely due to the lack of movement after formalised sessions for physiotherapy ceased. In her view, if the Plaintiff continued to have medications for pain they would have become less and less effective over time. She recommended that the Plaintiff tries to become more active with the assistance of the psychologist, eases of opioids and eventually eliminates them, at the same time as increasing his level of activity. [239] Dr Pascall indicated that a psychologist could give an opinion as to whether ongoing psychological treatment is warranted but some assistance in transitioning back to work and a further six sessions would be warranted on the basis that the Plaintiff would be commencing a work trial or similar program of reintroduction to work. No occupational therapy interventions were recommended but assistance to return to the workplace would be needed through a rehabilitation provider which is often an occupational therapist. Dr Pascall also opined that diverting into an allied field where the Plaintiff would be able to work part-time would require the assistance of a vocational psychologist. 11. Dr Zeman, in his report dated 20 November 2014, indicated that the Plaintiff does not require any long term physiotherapy, occupational therapy or similar treatment. In the longer term he stated that the Plaintiff should not require ongoing pain management although it would be prudent to continue interventions for a further 12 months after which it should be ceased. 12. In quantifying the allowance to be made, the absence of material from treating practitioners has provided some constraints. I have already expressed my views on the Plaintiff's current treatment regime. 13. The Plaintiff has, on life expectancy tables, 38 years of life remaining. I accept that the two surgical procedures which he was recommended in the medical reports are appropriate and it would be reasonable to make an allowance for supervision by his general practitioner, pain specialist, rehabilitation physician, occupational therapist, physiotherapist and psychologist. Of course he will also require an ongoing supply of medications. He may also require the services of a psychiatrist. 14. I propose to allow a buffer figure $75,000.00. Conclusion 1. The total sum of the damages are as follows:- 1. Non-economic loss = $300,000 2. Past economic loss = $321,292.48 3. Past loss of superannuation at 11% = $35,342.17 4. Future economic loss = $972,993.68 5. Future loss of superannuation at 13% = $126,489.17 6. Past domestic assistance = $88,705.29 7. Future domestic assistance = $265,188 8. Past out of pocket expenses = $284,092 9. Refund for Medicare payments(agreed estimate) = $3,750 10. Future out of pocket expenses (buffer)= $75,000 11. Future aids (buffer) = $7,500 12. Fox v Wood damages = $7,364 1. This sum comes to an award of damages in the amount of $2,487,717 (rounded up). Orders 1. For these reasons l order as follows:- 1. Verdict and judgment for the Plaintiff in the sum of $2,487,717. 2. Subject to any application to my Associate within 14 days to relist the matter for any further or other order as to costs, the Defendant to pay the Plaintiff's costs. 3. The exhibits are to be retained for 28 days. ********** Endnotes 1. Exhibit L, p 5 2. T 256.28 3. T 256.42 4. T 257.15 5. T 257.18-.28 6. T 258.35 7. T 258.24-.27 8. Exhibit C 9. T 266.24-268.31 10. Exhibit 1, p 7-8 11. Exhibit L, p 17 12. Exhibit L, p 19 13. Exhibit 1, p 17 at [7.4] 14. Exhibit K 15. Exhibit L, p 22 16. Exhibit L, p 18 17. Exhibit 1, p 15 at [6.10] 18. Verryt v Schoupp [2015] NSWCA 128 at [26] per Meagher JA (with whom Gleeson JA and Sackville AJA agreed) 19. T 68.45 20. T 35.44 21. T 36.5-.10 22. T 35.21-.26 23. T 35.30.33 24. T 37.48 25. T 39.17 26. T 44.5-.9 27. T 44.13 28. T 43.35 29. T 43.38 30. Exhibit E, p117 31. Exhibit E, p 120 and 332 32. Exhibit E, p 101 33. Exhibit E, p 122 34. Exhibit E, p 123 35. Exhibit E ,p 124 36. Exhibit E, p 125 37. Exhibit E, p 128 38. Exhibit E, p 127 39. Exhibit E, p 126 40. Exhibit E, p133 41. Exhibit E, p 131 42. Exhibit 1, p 39 43. Exhibit E, pp 259-260 44. Exhibit E, p 259 45. Exhibit E, p 262-4 46. Exhibit E, p 265 47. Exhibit E, p 268 48. Exhibit J 49. Exhibit J 50. See Exhibit J, reports dated 11 March 2015 and 17 June 2015 51. Exhibit J 52. Exhibit J 53. Exhibit J 54. Exhibit J 55. Exhibit E, p 200 56. Exhibit E, p 1 57. Exhibit E, p 99 58. Exhibit E, p117 and 120 59. Exhibit E, p 325 60. Exhibit E, pp 137-8 61. Exhibit E, p 143 62. Exhibit E, p 144 at (9) 63. Exhibit E, p 145 64. Exhibit E, p 145 65. Exhibit E, p 174 66. Exhibit E, p 178 67. Exhibit E, p 178 68. Exhibit E, p 334 also in Dr Pascall's report, Exhibit 1, p 43 69. Exhibit E, p 249 70. Exhibit E, p335 71. T 67.5-68.5 72. Exhibit E, p 335 73. Exhibit E, p 335 at footnote [4] 74. Exhibit E, p 315 75. Exhibit E, p 317 76. Exhibit E, p 317 77. Exhibit 1, p 59 78. Exhibit E, p 173 79. Exhibit E, p 322 80. Exhibit 1, p 49 81. T 202.9 82. T 215.27 83. Exhibit 1, p 74 84. Exhibit E, p 342 85. Exhibit E, pp 343-4 at [9.6]-[9.8] 86. Exhibit E, pp 344 at [9.12] 87. T201.1 88. Exhibit 1, p 13 89. Exhibit E, p 93 90. Exhibit E, p 136 at [7] 91. T 202.43 92. T 86.41 93. T 99.36 94. T 54.10-.15 95. T 92.10 96. T 93.48 97. T 94.8 98. T 94.29-.34 99. T 94.37 100. T 95.24 101. T 86.7 102. T 86.21 103. T 88.7 104. T 88.28 105. T 88.49 106. T 89.20 107. T 89.44 108. T 90.1 109. T 96.34 110. T 97.17-.46 111. T 97.49 112. T 98.9-.26 113. T 98.37 114. T 99.47 115. T 100.15 116. T 100.22 117. T 101.22 118. T 101.40 119. T 102.8 120. T 102.36 121. T 85.29 122. T 85.32 123. T 63.41 124. T 63.48 125. T 64.2 126. T 64.10 127. T 62.9-.20 128. T 242.21 129. T 120.40 130. T 122.24 131. T 121.41-.45 132. T 122.33 133. T 173.7 134. T 174.22 135. T 174.29 136. T 180.45 137. T 175.5-.10 138. T 61.31 139. T 61.45 140. T 62.10 141. T 62.20 142. T 62.25-.48 143. T 63.15 144. T 64.15 145. T 64.24 146. T 64.45-65.1 147. T 65.10 148. T 66.7 149. T 66.27 150. T 66.45 151. T 66.50 152. T 67.40 153. T 68.25 154. T 70.6 155. T 70.50 156. T 74.32 157. T 75.5-.43 158. Exhibit E 159. T 137.50 160. Exhibit E, p 335 161. T 138.35 162. Exhibit E, p 302 163. T 142.2 164. T 244.13 165. T 245.43 166. T 246.15 167. T 167.31 168. Exhibit E, p 266 169. Exhibit J report of 11 march 2015 170. Exhibit E, pp 379-464 171. T 219.37 172. Exhibit E, pp 371-460 173. Exhibit E, p 461 174. Exhibit J, report of 5 June 2014 175. T 76.5 176. T 77.4 177. T 220.38 178. Wade and Ors v Allsop (1976) 10 ALR 353 179. Plaintiff's Written Submissions at [39] 180. T 175.5 181. T 175.39-.44 182. Exhibit 1, p 37 183. Exhibit 1, p 15 184. Exhibit 1, p 52 185. T 194.2 186. T 196.15-.26 187. See T 209.10-.40 188. T 209.25 189. T 214.43 190. T 215.1 191. Exhibit 1, p 82-3 192. Exhibit E, p 169 193. T 102.15-.30 194. Exhibit E, p 254 195. Exhibit E, p 222 196. Exhibit E, p 201 197. Exhibit E, p 317 at [4] 198. T 175.6 199. Exhibit E, p 256 200. T 80.5 201. Exhibit E, p 222 202. Exhibit E p 256 203. T 163.40 204. T 164.9 205. T 231.5 206. T 231.2 207. Plaintiff's Written Submissions at [42] 208. T 241.13 209. Exhibit E, p 214 210. Exhibit E, p 271 211. T 238.5 and T 251.41 212. T254.3 213. Exhibit E, pp 201-2 214. Exhibit 1, p 83 215. T 253.22 216. See Sampco Pty Ltd v Wurth [2015] NSWCA 117 at [91] 217. Born 2008 and 2010 according to Exhibit B 218. Exhibit E, p 298 219. T 148.10-.20 220. T 241.5 221. T 242.31-.36 222. Exhibit E, p 299 223. T 148.15-.28 224. T 129.25-132.3 225. T 241.9 226. T 111.29 227. T 241.29-.41 228. Exhibit E, p 299 229. T 46.1-.25 230. Exhibit E, p 301 231. T 103.36 232. T 239.17-.29 233. Exhibit E, p 301 234. Exhibit E, p 168 235. Exhibit E, pp 200-1 236. Exhibit E, p 214-5 237. Exhibit J 238. Exhibit J 239. Exhibit 1 p 53 Amendments 16 October 2015 - At paragraphs [198]-[199] references to s 15 of the Civil Liability Act 2002 (NSW) have been changed to s 141B of the Motor Accidents Compensation Act 1999 (NSW) pursuant to UCPR 36.17 At paragraphs [212] and [226] the amount of past out of pocket expenses have been changed from $184,092 to $284,092 pursuant to UCPR 36.17. At paragraphs [227]-[228] the award of damages has been changed from $2,387,717 to $2,487,717 to adjust for the change in out of pocket expenses pursuant to UCPR 36.17. 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: 16 October 2015