Musladin v Owen [2009] ACTSC 2 (6 February 2009)

DAMAGES – personal injury – motor vehicle collision – whiplash injury to neck – injury to C1-2 facet joint – substantial impairment of earning capacity – chronic neck pain – effect of other injuries before and after cause of action

2. The defendant have credit for $7,893.15 for treatment expenses paid on the plaintiff’s behalf.

1. This is an action for damages for personal injury arising out of a motor vehicle collision. Liability is admitted, and the action comes before the Court for the assessment of damages.

2. The plaintiff was born in November 1973 and is 35 years of age. He was born in Sydney to immigrant Croatian parents who moved to Canberra when he was two or three years old. He was educated in Canberra. He left school after completing Year 10 at the end of 1989. He commenced an apprenticeship as a diesel mechanic, but after three years his employer went out of business. The plaintiff then entered a carpentry apprenticeship with his father, a builder, which he completed. During 1995 he worked with his father on a building project at Nicholls, through the family company Innovative Homes Pty Ltd. During the course of this project his father developed a brain tumour. He died in Croatia during 1996. The plaintiff finished the Nicholls project on his own.

3. The plaintiff is single and lives at the family home in Canberra with his mother. Before his accident he had been involved in two reasonably long-term relationships. He is a tall, slim young man. Before the accident he kept himself fit with weightlifting and exercises at a gymnasium. His interests included skiing, mountain bike riding and dirt motorcycle riding.

4. At about 9.30 am on Monday 14 February 2000, the plaintiff was driving a tiptruck with a load of sand in the course of his work as a builder. He was driving east on Southern Cross Drive. At the T-junction on his left of Florey Drive, Latham, the defendant drove into the intersection across his path, in contravention of a give-way or stop sign. The impact was a severe one. The plaintiff’s truck was damaged beyond repair. The plaintiff’s evidence is that he had his head and neck turned to the right at the time of impact. Although he was wearing a seatbelt, it appears that parts of his body made contact with the interior of the truck.

5. The plaintiff immediately noticed that he had cut his leg. He had a warm sensation in the back of the neck. There was a degree of urgency as he realised that smoke was coming out of the other car and that its engine was racing. The plaintiff pulled a child from the back seat of the car. A number of people attended and, in the plaintiff’s words, the shock set in. He felt really cold and very quiet. Police arrived at the scene, followed by an ambulance. The plaintiff was interviewed by police, then checked by ambulance officers and taken to Calvary Hospital. By that time the plaintiff had severe pain in the neck, and pain in the left leg, the left wrist and the right shoulder. X-rays at the hospital revealed a minimally displaced fracture of the right clavicle. The plaintiff’s arm was put in a sling, which he used for about a week. He spent perhaps two hours at the hospital, and then went home. On the same evening he went to the Australian Institute of Sport where he used the sauna and spa to relieve tension. His pain continued, and he returned to Calvary Hospital the next day. He saw Dr Reid, a sports physician, a day later and was referred for physiotherapy to Ms Davies at the Sports Medicine Centre. He attended Ms Davies on about seven occasions over the next month or so. He was also referred to a massage therapist, Ms Brown, whom he first saw on 17 February. He had thirteen sessions with her over the next four months.

6. On 21 February, the plaintiff attended his family general practitioner, Dr Voon. He complained of tenderness over the left and right upper and lower para-cervical regions, the mid-trapezius and the left para-scapular region. He had a full range of movement in the neck and no reduction in power in the arms. There was tenderness in the lower right leg and the left wrist, and extreme tenderness in the right shoulder with stepping of the lateral end of the right clavicle. Dr Voon formed the view that the plaintiff required psychological treatment, and referred him to Dr Juliet Gibson.

7. Dr Gibson is a medical practitioner with a background in psychiatry who practises as a counsellor in psychological medicine. She saw the plaintiff for the first time on 28 February 2000, two weeks after the accident. She diagnosed post-traumatic stress symptoms and an adjustment disorder with mixed anxiety and depression. She described the plaintiff as a perfectionist and said that he was initially reticent about expressing his level of psychological distress. She ascribed some significance to the fact that the female driver of the other vehicle had herself sustained serious injuries. She also mentioned a background of unresolved grief following the death of the plaintiff’s father five years earlier. She appears to have seen this as a factor in the plaintiff’s vulnerability to psychological effects following the motor accident.

8. Symptoms of post-traumatic stress which Dr Gibson recorded included repetitious thinking about the accident, heightened arousal when driving and episodic flashbacks. Her treatment included visualisation techniques to assist sleep, as well as incremental exercise as the physical injuries improved, and a graduated return to work as a builder. She prescribed anti-depressant medication from May 2000 to deal with the plaintiff’s symptoms of variable mood state, early waking and intense difficulty in focusing on his work. She also detected anxiety, anger and distress in the plaintiff, evoked by the accident. The plaintiff continued to see Dr Gibson for psychotherapy and counselling for about two years.

9. The plaintiff returned to work supervising a building project at Ainslie, the nature of which I shall come to, about two weeks after the accident. He found that this exacerbated the pain in his left wrist and right shoulder. About a month after the accident, Dr Reid gave him cortisone injections in both those areas for pain relief.

10. The plaintiff continued to work. Some of the work was heavy, including acting as a labourer for his bricklayer, carrying bricks and mixing cement.

11. The plaintiff’s evidence was that after the collision, he continued to engage in swimming, riding and attending the gymnasium. He found that these activities increased his pain. On 7 May 2000, he and a group of friends were engaged in dirt motorbike riding near Queanbeyan. He rode his motorbike over a jump, lost control and fell off the bike. He injured his left leg. He was treated as an outpatient at Queanbeyan Hospital, where he was given painkillers and a pair of crutches which he used until the end of that month. His evidence was that his cervical spine was not affected by the fall.

12. Dr Voon gives a little more detail about this incident in a report of 6 August 2000. He records that the plaintiff complained of a painful left hip and left shoulder, and of chest pain radiating to the left buttock. He was initially unable to walk. He had abrasions over the injured areas of the body. He was given intramuscular pethidine at the hospital and was confined to bed for four days, returning to work by the end of May.

13. The plaintiff agreed in cross-examination that he had been picked up by a friend with bikes on a trailer and driven to the track. He had assisted getting the bikes off the trailer. He said that he was off work for about two weeks after the fall, and then went back to the building site on crutches, which he used until the end of May. He disagreed with the proposition that by 7 May he felt sufficiently recovered from the motor vehicle collision and strong and capable enough to engage in dirt bike riding. His explanation was that he was in denial about his true physical condition, and was unwilling to let go of his previous life. He was determined not to allow the injury to beat him. He tried to do things that he had done before the collision, including riding, swimming and working. He found that he always came off second best, and ended up with more pain after such activity. Even by the time of the hearing he had still not come to terms with this, and was continuing to have trouble accepting that he could no longer live his previous life.

14. In June 2000 Dr Voon referred the plaintiff for further x-rays, CT and bone scans. A small central disc bulge was detected at C4-5 but it appears from the later specialist medical opinion that this was not the cause of the plaintiff’s neck symptoms.

15. On 24 June 2000 the plaintiff told Dr Voon that his neck was stiff on awakening, and became worse during the day, requiring massage. He had continuing symptoms in the right shoulder and left wrist. He had poor concentration and was indecisive. He had difficulty holding carpentry tools above his head, and his neck pain was aggravated by extension. Working with a pick and shovel and carrying bricks aggravated his shoulder and wrist pain. He had given up gym attendance. Freestyle swimming caused shoulder pain. He could not turn his head quickly, which affected his cycling. He could not do press-ups. On examination he was tender over the mid and right para-cervical region. Neck rotation was restricted.

16. The plaintiff continued with his building project, which was completed in October 2000. In August 2000 he was referred by Dr Voon to Dr Eaton, occupational physician. Dr Eaton recommended assessment and treatment at the Canberra Injury Management Centre. He though that the plaintiff would benefit from an exercise program and might need to participate in a cognitive behavioural pain management program. There was, he thought, a neurogenic element to the pain.

17. The plaintiff’s recollection was that Dr Eaton told him to “keep going on with things”, including swimming. The plaintiff mainly swam breaststroke because he found it hard to swing his arms over his head as occurs with freestyle and backstroke.

18. Whilst the Ainslie project was formally completed in October 2000, the plaintiff said the he continued attending the property until February 2001, cleaning up, watering plants, and organising such things as the installation of carpet. He attempted some physical work on site but found this extremely difficult. He said that he tried riding his mountain bike during this period, but found that this aggravated his pain. Prior to the car accident it had been his habit to ride his bicycle after work and on weekends, something which gave him a great deal of enjoyment.

19. The Ainslie properties were sold. The plaintiff decided to travel to Croatia to stay with members of his extended family. He left Australia in March 2001 and returned in September 2001. Asked in chief what he did whilst he was in Croatia, he said that he did not do much, but just tried to look after himself as best he could. He stretched his neck, using techniques recommended by a physiotherapist. He helped around his uncle and aunt’s house. He said that if it had not been for his injuries he would not have undertaken the trip to Croatia, but would have kept working, developing properties as he had just done at Ainslie, and taking on contract carpentry work between projects. Indeed, he would have taken on carpentry work immediately following the completion of the Ainslie project in October 2000.

20. His evidence was that prior to the motor accident he saw his future in optimistic terms. He had gained a good understanding of the real estate market, and the importance of timing purchases and sales. His intention had been to “go pretty hard for the next . . . five to eight years in building”. His intention would have been to buy a block of land, subdivide it into two blocks and redevelop the site. Another option had been the building of cottages at Gungahlin.

21. The plaintiff said that on his return from Croatia, he was depressed. He saw Dr Eaton and Dr Gibson again. Dr Gibson prescribed anti-depressants. On Dr Eaton’s recommendation, the plaintiff undertook a pain management course at the Canberra Injury Management Centre from early December 2001, attending one day a week for some weeks and using gym equipment for general strengthening. He said that the course did not result in any improvement in his symptoms.

22. He saw Dr Gibson for the last time early in April 2002. He was taking, at about that time, anti-inflammatories as prescribed but found that these had no effect. He was referred to Dr Chandran, neurosurgeon, by his general practitioner in August 2002. Dr Chandran performed a left occipital nerve block. The plaintiff said that this reduced his pain to about half its chronic level, but that after about two weeks it returned to that level. That evidence was not precisely to the same effect as Dr Chandran’s record, in a February 2003 report. Dr Chandran recorded that on 27 August 2002, about three weeks after the nerve block, the plaintiff had reported that his pain had initially been reduced considerably but had returned to half the level of the previous pain. This being based on a contemporaneous note taken by Dr Chandran, I am inclined to the view that it is more likely to be accurate than the plaintiff’s recollection five years later.

23. Later in 2002 the plaintiff had about ten sessions of acupuncture treatment. His oral evidence was that this had no effect and did not help at all. He continued to experience deep, constant, dull aching pain which tightened the muscles on the back of the left side of the neck, accompanied by frontal headaches.

24. He was asked in chief whether he undertook any physical activity or building work during 2002. He said that he had had some landscaping work done around the front of his mother’s house, where he was living. The landscape contractors had finished their job but had not cleaned up and the plaintiff was obliged to clean up after them. He said that this aggravated his condition, causing him to return to Dr Voon. The cleaning up had involved picking up paving blocks, laying some piping for irrigation, and sweeping. The work might have taken a couple of days, and left him with intense pain in the neck.

25. In September 2002 he went to Sydney and tried some Chinese herbal remedies, but these, he said, had no effect.

26. In October 2002 he returned to see Dr Chandran, who offered him a further injection. The plaintiff refused this. The reason he gave in his oral evidence was that he had not been happy with the first treatment. It had been very invasive and he had not felt good after it. Dr Chandran’s contemporaneous note is that whilst some of the exercises the plaintiff had been engaged in had aggravated his pain, there had been some improvement in his symptoms and he was looking at returning to work as a builder. Dr Chandran’s view at that time was that the plaintiff’s symptoms were probably coming from the facet joints and occipital nerve. The initial injection of cortisone and local anaesthetic into the occipital nerve had given some measure of relief, and further improvement might occur with a facet joint injection. Dr Chandran thought that the plaintiff’s symptoms in October 2002 were consistent with a soft tissue injury to the upper cervical spine of mild degree, and that his symptoms were likely to continue to improve. The plaintiff did not see Dr Chandran again.

27. It was then led from the plaintiff that in late 2002 he had been contacted by a cousin, Tony Pincevic, who was a builder and developer in Sydney. Mr Pincevic had found a property at Eastwood and asked whether the plaintiff would like to join him in redeveloping it. It was a large corner block. The plan was to renovate the existing house and to build a second house on the block. The plaintiff told his cousin that he was in no condition to take on any physical work. They agreed that the plaintiff would look after the administration and paperwork while his cousin would carry out the physical tasks.

28. It appears from some of the medical notes that the plaintiff may have been a year out with these dates. He agreed in cross-examination that it might have been in late 2001 that he was first contacted by his cousin, and that the entire project might have been carried out a year earlier. It also seems possible to me that the project took rather longer than the plaintiff thought. I do not attach any particular significance to the evidence about the dates. The plaintiff volunteered throughout his evidence that he did not have a clear recollection of the dates or the periods of time involved in many of the events about which he gave evidence.

29. The plaintiff moved to Sydney and lived in the existing house early in 2003. Work started on the project in June 2003 and concluded in about March 2004. Both houses were then sold, realising a substantial profit to the joint venture between the plaintiff’s company and his cousin’s company. It seems clear that between purchase and sale there had been a significant rise in house and land prices in Sydney generally. The evidence does not enable me to determine how much of the profit was due to this factor and how much to the work carried out by the joint venturers.

30. The plaintiff said that while he was in Sydney he saw an osteopath at Eastwood on three or four occasions. This course of treatment proved unsatisfactory and he ceased it.

31. The plaintiff saw Dr Eaton in May 2003, during a trip back to Canberra shortly before work started on the redevelopment. He told Dr Eaton about the nerve block performed by Dr Chandran, and the initial improvement and subsequent deterioration in his pain level. He reported a constant level of pain of 4 out of 10. He told Dr Eaton that his energy had returned following the taking of herbal medicines. He remained very angry. He was taking anti-depressant medication and carrying out breathing exercises for relaxation. He had not worked since last seeing Dr Eaton in November 2001 but was about to start work on the Eastwood project. He was keeping a pain diary. His pain level on the day was 5 out of 10 but could reach 9 out of 10 on occasions. Sometimes it was as low as 3 or 4 out of 10. He said that he was sleeping well. He had tried to do some gardening, mowing and landscaping but found that he was limited in the amount of the kind of work he could undertake. Long-distance driving aggravated his neck pain.

32. Dr Eaton at that time accepted that the plaintiff would find it difficult to carry out heavy physical duties involving lifting, and activities requiring static neck postures and the use of his arms above shoulder level for long periods. Consequently some of the duties of a contract carpenter might be difficult for him. Dr Eaton thought that he had developed a chronic cervical spine pain disorder with a significant neurogenic component. It was likely that there had been “a central sensitisation of nociception of neurogenic windup” which had resulted from the injuries in the motor accident. Such pain disorders could continue even after tissue healing had taken place. Dr Eaton thought that the plaintiff might find it difficult to carry out some of the activities of a carpenter and builder but did not believe that he was totally incapacitated for such work. He thought that the plaintiff’s condition would slowly settle over time to an acceptable level though physical activity placing undue strain on the neck and shoulders might aggravate the condition. He did not believe that the plaintiff’s working life had been shortened.

33. The plaintiff went back to Sydney for the duration of the Eastwood project. He said that his cousin attended to the physical work whilst he attended to the paperwork. At times he helped with sweeping, cleaning up and moving building materials.

34. The plaintiff returned to see Dr Chandran in September 2003, and was given a facet joint injection, similar to the injection he had been given in August 2002. Again the plaintiff’s evidence was that the injection initially provided some relief but that the pain returned.

35. On 1 December 2003 the plaintiff wrote letters to Dr Chandran and Dr Eaton. These letters were tendered by counsel for the plaintiff, not as evidence of the truth of their contents, but to assist the court in comprehending subsequent reports by the doctors. I propose to limit their use accordingly. In the letters, the plaintiff stated that since the injection two months earlier he had had no pain relief at all. His experience as to the injection had been entirely negative. He said that for the two weeks after the injection he felt unwell and his cousin had taken care of the Eastwood project. He said that he had a full-time labourer to do the physical work and that he was contracting the carpentry work out. Even the administration of the project was proving difficult because of his pain. At the end of the day he was tired, which reminded him of how he felt during the first year after the accident. He now knew exactly what he was capable of doing and what he was not capable of doing. He intended to see the Eastwood project through and put up with his situation. He said that at the conclusion of that project he had “decided to stop work until I have been compensated”. This would allow him to structure his company so as to employ more staff and leave himself with more of an administrative role enabling him to continue with a career in the building industry. He listed a number of activities which, he said, aggravated his neck pain. These included overhead work, looking up constantly, swinging a pick, walking on a roof and being physically active all day doing general things. He said that his lowest pain levels were on waking in the morning. His symptoms included a constant dull ache varying in intensity which he described as “torture”; tight muscles; headaches; low tolerance, low motivation and low energy.

36. Dr Chandran replied at the end of December. He said that as the nerve block injections had not worked, he could offer no further surgical assistance. He suggested obtaining an opinion from a pain management specialist. He agreed with the plaintiff’s proposal to alter the structure of his company to limit his role to an administrative one.

37. Dr Eaton accepted the complaints at face value, and expressed the view, in a report to the plaintiff’s solicitors in early February 2004, that the plaintiff remained unable to carry out his normal duties in the construction industry, and that unless he was able to work in a purely supervisory capacity without any physical duties, he would be unable to continue working in that industry.

38. The plaintiff gave evidence in chief that while he was in Croatia in 2001, he slipped on stairs and landed on his right wrist. He had some pain in the wrist for a short period, and saw a general practitioner in Croatia about it. He made a complete recovery from this injury in a short time.

39. While he was working on the Eastwood project, he slipped again on site and fell onto his right wrist. He had pain in the right wrist for about two weeks but it then cleared up. He said that he eventually saw an orthopaedic surgeon in Canberra, Dr Ashman, who diagnosed an ununited fracture of the scaphoid. Dr Ashman operated on the wrist in November 2004, and the plaintiff was effectively out of action for about two months after that.

40. The plaintiff said that he returned to Canberra after the completion of the Eastwood project in March 2004, and obtained unpaid work for one day a week as a driver for Belconnen Community Service, driving elderly persons to medical appointments and the like. He did this for about eleven months.

41. In October 2004 he applied to the University of Queensland for enrolment in a degree course in building and surveying, with a view to qualifying as a private building certifier. His application was rejected. He assumes that this was because, despite his experience and his builder’s licence, he had never completed Year 12.

42. In March 2005, Dr Voon referred the plaintiff to Dr Cassar, a consultant physician and pain management specialist. Dr Cassar carried out infrared imaging of the plaintiff’s neck and upper body which was inconclusive. He thought that acupuncture and psychotherapy-based stress management might be helpful.

43. At the end of March 2005, the plaintiff was the victim of an attack. He was sitting in a car at a hockey match in which his then girlfriend was participating. Two men of Pacific Islander appearance approached the car, opened the door and pulled him out of the vehicle. He was struck with a baseball bat. He attended Calvary Hospital and had x-rays. His evidence in chief was that this incident had no effect on his neck symptoms.

44. During 2005, the plaintiff incorporated a company, Spats Oz Pty Limited. After his application to enrol at Queensland University was rejected, he began to think about other career or business opportunities and sources of income. He had an idea which he had been thinking about for a long time. The idea was to develop and manufacture a mountain bike overshoe. His intention was to market it via the internet. He thought up the design and made a prototype using Neoprene and other materials. He identified a company in Taiwan as a potential manufacturer, and communicated with the principal of the company by email. In October 2005 he travelled to Taiwan to meet the principal.

45. Shorty before travelling to Taiwan the plaintiff saw Dr David Champion, a specialist in Sydney to whom his solicitors had referred him earlier in the year for a medico-legal report. Dr Champion is a rheumatologist and pain management specialist. He is an Associate Professor in medicine at the University of New South Wales and holds a doctorate of medicine conferred for published work in pharmacology by that university. Dr Champion has published extensively and I accept that he is an acknowledged leader in Australia in the field of pain management. The plaintiff said that he had become desperate by September 2005 to get rid of his continuing chronic pain. He had been very impressed with Dr Champion when he had seen him some months earlier, and wanted to find out whether Dr Champion could provide him with any relief.

46. Dr Champion referred him to Dr Barnsley, also a rheumatologist and Associate Professor. Dr Barnsley, to Dr Champion’s knowledge, had developed expertise in treating neck pain by injecting anaesthetic under radiological guidance into the upper cervical zygapophyseal joints. The purpose of the technique was to anesthetise joints at levels likely to be causing pain, to test whether any of these might be the source of the pain. Dr Barnsley performed medial branch blocks targeting the C2-3 and C3-4 joints. Neither of these significantly relieved the pain. Dr Barnsley explained that it was far more difficult to anesthetise the C1-2 joints to test whether they were symptomatic. He likened this to threading a needle past vital structures. Additionally, he said, it was not possible to treat C1-2 joint pain with radiofrequency denervation, which would have been the appropriate treatment if the site of the cause of the pain had been at a lower level. Accordingly Dr Barnsley could not test his hypothesis that the pain was coming from the C1-2 joint, although he strongly suspected this on clinical grounds. He thought it more likely than not that an injury at that level had been occasioned in the motor accident. All he could offer for the future was analgesic treatment for the neck pain. He did not think that the plaintiff was likely to gain significant benefit from further injection treatments. No treatment would enable him to return to full-time employment as a builder, and he was likely to have continuing pain at about the same level indefinitely.

47. The plaintiff’s evidence was that the injections he received from Dr Barnsley were painful and unpleasant, and provided him with no relief.

48. The plaintiff continued with osteopathic treatment during 2006 and 2007, without much relief. Early in 2007 he returned to see his general practitioner, Dr Voon. He said that he was desperate. He asked Dr Voon whether there was anything new that he might be able to take. Dr Voon told him that there was a patch that had just come onto the market, a product called Norspan. Dr Voon gradually increased the strength of these patches. The plaintiff’s evidence was that they did not relieve his pain to any extent. He had a nauseous reaction to this treatment. After a break he tried it again but again without success.

50. In April 2007 he obtained work at the Australian National University as a laboratory assistant. He worked initially for five days a week but found that he had to cut this back to four days. He described the work as very light. The position was a casual contract position which came to an end in August 2007. He found that he could do this work for four days a week, and said that he would apply again if another contract became available.

51. The plaintiff was subjected to an extensive and searching cross-examination largely directed at his credit. In the course of the cross-examination, counsel for the defendant showed video footage of the plaintiff. I was informed that there would be about five hours of video to be seen. In the event it transpired that much of the video had focused on a man of about the plaintiff’s age who had been staying at his home for a period, and who the investigators, perhaps not surprisingly, took to be the plaintiff. The existence of this video footage of the wrong man perhaps explains in some measure the scepticism of those instructing counsel for the defendant as to the credibility of the plaintiff’s evidence and the strength of his case. An edited digital video disc, with the footage of the wrong man removed, was tendered and I have viewed it carefully in the course of preparing these reasons. The plaintiff is not seen on film to be engaging in any strenuous physical activity. He is seen driving and walking. I am satisfied that, at least on the days when the film was taken, the plaintiff’s range of neck movement was considerably greater than he demonstrated in the witness box. This causes me to suspect that the plaintiff may have been exaggerating the degree of his disability, either consciously or subconsciously, both during his oral evidence and in the histories he gave and the manner in which he presented to the doctors and other health professionals who have seen him over the years.

52. The plaintiff gave evidence in chief that he had been riding a mountain bike since he was ten years old. He had fallen off his bike on a number of occasions during the 1990s and suffered injuries, but he had recovered from each of those injuries. He was asked in cross-examination about a particular fall in February 1999 in which he had injured his right shoulder and fractured his left wrist. Calvary Hospital records showed that on 21 February 1999 the plaintiff was treated as an outpatient for an undisplaced fracture of the left wrist, and tenderness in the area of the acromio-clavicular joint in the right shoulder. A CT scan of the shoulder showed changes suggestive of previous trauma. Asked how long it took it him to recover fully from the right shoulder injury, the plaintiff answered “I was using it pretty much probably two months after”.

53. Dr Reid’s record of his attendance on the plaintiff in mid-February 2000, after the motor accident, included a history that the plaintiff had injured his clavicle in a mountain bike accident in February 1999 and suffered grade 4 ligament damage. He recorded that the plaintiff had had some physiotherapy treatment. The plaintiff professed no recollection of this in his oral evidence. The plaintiff agreed that he had told Dr Reid that before the motor accident he had been booked in for some treatment to the right acromio-clavicular joint. The plaintiff’s evidence was that he was seeking treatment for a stepping or lowering of the right shoulder by comparison with the left shoulder. He could not remember where or when he had been booked in for the treatment.

54. Dr Reid referred the plaintiff to a sports physiotherapist, Ms Steinman. She recorded in February 2000 a history that the plaintiff had had persistent problems with the right shoulder before the car accident and had hurt it again in the car accident. In his oral evidence, the plaintiff said that his right shoulder symptoms prior to the motor accident amounted to discomfort rather than pain. He described the symptoms as niggling and said that they did not interfere with his activities. He did not recall having any restriction of movement in the right shoulder between the fall from the mountain bike and the motor accident but agreed that there must have been some restriction. He eventually conceded that at the time of the car accident he was continuing to suffer intermittent pain or at least discomfort in the right shoulder. He said that he had forgotten this when giving his evidence in chief.

55. The plaintiff then volunteered, in the course of cross-examination, that he had made an appointment to see Dr Reid about his shoulder before the motor vehicle accident. His counsel had put to him in chief that he had been referred to Dr Reid by staff at Calvary Hospital, and he had accepted that proposition. It became apparent as a result of the cross-examination that this was incorrect, and that, coincidentally, the appointment he had made with Dr Reid was for 16 or 17 February 2000, two or three days after the accident. He kept the appointment, by which time his major problems arose from the motor accident rather than from the shoulder injury a year earlier. I am satisfied that this is something the plaintiff was well aware of, and that he would not have told the Court about it in the absence of the cross-examination and the concessions he was forced to make in the course of it.

56. The plaintiff agreed that when he saw Dr Talbot, an orthopaedic surgeon, at the request of the solicitors for the defendant in December 2006, he gave an incomplete medical history. He told Dr Talbot that he had injured his right shoulder in a skiing accident in 1997 from which he had recovered, and that he had fallen from a bicycle in 1999 but had “only grazed his chin”. He explained the apparent inconsistency with his actual history by saying that he had been confused and had got mixed up between difference incidents. Bearing in mind that he was seeing Dr Talbot nearly seven years after the motor accident and eight years after the fall from the mountain bike, I am inclined to put this down to poor recollection rather than to a deliberate failure to provide an accurate history to Dr Talbot.

57. He also conceded that he did not mention to Dr Talbot the fact that he had had surgery on his right wrist in November 2004, or that he had injured the wrist initially in Croatia during 2001 and again at the Eastwood building site in 2002 or 2003. The plaintiff explained this by saying that the injury and treatment to the right wrist had nothing to do with the car accident and that in his view there had been no need for Dr Talbot to know about it. He was asked by counsel for the defendant why this was any different to the history he gave Dr Talbot about injuring his right shoulder in a skiing accident in 1997 and falling from his bicycle and grazing his chin in 1999. His answer was that Dr Talbot knew about these incidents from reports which had been provided to him by the solicitors. In contrast, Dr Talbot did not ask him any questions about his wrist injury or surgery. He agreed that he had not told any of the other doctors he had seen for the purposes of the case about his wrist. I cannot avoid concluding that the plaintiff deliberately kept this part of his medical history from Dr Talbot and the other doctors. I cannot accept his explanation that he did not mention his wrist condition because he saw it as unrelated to the claim in respect of which the doctors were assessing him. It seems to me more likely than not that he kept it from the doctors because he thought that disclosing it might damage his case.

58. The plaintiff was cross-examined about his mountain bike riding. He agreed that he might have attempted to resume mountain bike riding within a month of the motor vehicle accident, and that he would certainly have done so prior to his motorcycle injury in May 2000. During this period he had probably ridden from his mother’s home to a dirt track. He accepted that he might have engaged in mountain bike riding on two consecutive days. He said that he used to ride the bicycle to the Australian Institute of Sport where he swam for rehabilitation. He also agreed that he had continued to ride his mountain bike from then until the hearing, although he did not think that he had gone cycling for a number of months before he gave evidence. In about 2004 he had joined a mountain bike club or group. He had had a girlfriend at that time and he did not want her to think that he was disabled. He said that he “sort of covered up to her” to some degree. In the summer of 2004 he and his girlfriend went mountain bike riding at Thredbo, including riding down mountain tracks. They spent two days there. They took the bicycles on a roof rack on top of her vehicle. The plaintiff explained that the cycling aggravated his pain but that he regarded the pain as a part of life and something he had had to learn to live with.

59. Counsel for the defendant referred the plaintiff to a report by Dr D Billett, an orthopaedic surgeon who had assessed him for the purpose of a report to the defendant’s insurer in April 2002. The plaintiff told Dr Billett that he had been riding his mountain bike and his dirt bike up until about July 2000 but had not done so since then. The plaintiff’s explanation for this history was that he had not been riding his bike “like I used to and . . . to the same degree”. He said that he had not discontinued riding his mountain bike. He denied that he had given a false history in this regard to Dr Billett. Although Dr Billett did not give oral evidence, the history he records in his report is unequivocal and I think it more likely than not that the plaintiff gave Dr Billett a false history about his cycling when he saw him in April 2002, and that he did so with a view to improving his case.

60. The plaintiff agreed that Dr Reid may have told him, in February 2000, that he probably had a chronic rotator cuff dysfunction in the right shoulder as a result of the fall from the mountain bike a year earlier.

61. The plaintiff agreed that during the year before the hearing he had ridden his bicycle to the gymnasium at the Australian Institute of Sport, about three kilometres from his home, and that he had also attended the gymnasium at the University of Canberra. When he obtained the contract position at the Australian National University, he had taken out a membership at the ANU gym and attended there three or four times a week, attempting to maintain a regular fitness routine. He thought that he had most recently exercised at the ANU within the week before the hearing. He might have attended the gym three or four times during that week, spending from forty minutes to an hour, following a specific routine which included the use of weights. He also conceded that there might have been occasions during the twelve months before the hearing when he had swum, probably at the pool at the Institute of Sport, swimming distances of six hundred metres in a session.

62. The plaintiff was asked to demonstrate the range of rotation to the left and right of his neck in the witness box. He demonstrated a range agreed between counsel and myself at 45° to the right and perhaps 55° to the left. It emerged in subsequent medical evidence that normal range for a man of the plaintiff’s age would be expected to be 80° to 90°.

63. Counsel for the defendant then took the plaintiff to the Calvary Hospital records of his attendance following the assault at the hockey match. According to the records, the plaintiff was examined and found to have a full range of neck movement, and no tenderness in the neck. The plaintiff disputed these records, but it seems to me that the hospital notes, being a contemporaneous record of events which occurred approaching three years before trial, are likely to be accurate. I prefer the evidence emerging from those records to the plaintiff’s evidence based on his recollection.

64. Brief evidence was given by Mr Susa, a builder for whom the plaintiff had undertaken contract carpentry work before the accident; Mr Pincevic, the plaintiff’s cousin with whom he had been engaged on the Eastwood project; and the plaintiff’s sister. Each gave evidence generally supportive of the plaintiff’s case.

65. The solicitors for both parties estimated, in the certificate of readiness filed in June 2007, that the hearing would occupy three days. The estimate proved highly optimistic, even after it turned out that most of the video footage was not of the plaintiff but of another man. At the end of three days of hearing in November 2007, it was necessary to adjourn the hearing until mid-February 2008, when it occupied another three days.

66. The plaintiff was recalled to give evidence of his activities during the intervening period. He had started a further contract at the Australian National University two days after the hearing was adjourned in November. He worked for four days a week, doing the same work as during his previous contract, for about eight weeks until mid-January 2008.

67. He also found work with Cube nightclub in Canberra City. The plaintiff said that he started work at Cube nightclub just before New Year’s Eve at the end of 2007, and worked through until 4 February 2008, about a week before the resumption of the hearing. He obtained a security licence. He did not want to do the job but was, in his words, forced into it. He had done the course hoping to find sedentary security work, for example watching closed-circuit television monitors. He heard about the job at Cube in a passing conversation. It was available immediately. If he had not taken it up the job would have gone to someone else, leaving him without work at the end of his ANU contract. In his words, he “sacrificed my wellbeing there for a while and put up with some more chronic pain, which exacerbated my symptoms because of the hours and what not”. He was continuing with the ANU contract work at the same time. He gave up the Cube job because “it was all too much . . . my role was only to check IDs and dress code, but the more I did the job, I realised that I actually was putting myself in the risk of harm . . . and I don’t think I would be able to . . . defend myself with the injury that I have”. He worked at the nightclub only on Sunday nights, from about 9.00 pm to 3.00 am on the Monday morning. He worked on eight nights. He had to work on Monday mornings at the ANU, which he found very hard. He had exhausted his funds and took the job, I infer, because he needed the money.

68. He had undertaken the security course, over five or six days, in October 2007, after he had finished his first contract with the ANU. He was issued by the ACT Office of Fair Trading with what I infer was an employee licence to act as a crowd controller under section 13(1) of the Security Industry Act 2003. The course included some training in how to deal with a person who was intoxicated, aggressive or violent, using a wrist restraint and holding one arm behind the person’s back. There was also training in talking and negotiating one’s way out of a threatening situation. Participants in the course were trained in restraining persons until the arrival of police.

69. The Cube nightclub had a single entrance, being a front door at street level. The bar was on a lower level down a flight of stairs. The nightclub was licensed to serve alcohol. It charged an entrance fee to customers as well as charging for drinks. On a typical Sunday night there were four or five staff on duty, including a cashier, a bar attendant, a disc jockey and the plaintiff as doorman, as well as the owner or manager. Typically there would be a maximum of about fifteen customers at any time. Sundays, the plaintiff explained, were much quieter than Fridays and Saturdays.

70. The plaintiff was provided with a uniform polo-style shirt with a Cube logo and the word “security” under the collar. He was the only staff member trained and licensed in security.

71. The plaintiff insisted during cross-examination that his duties, as he understood them, were limited to checking identification (to ensure that customers were not under age for licensed premises) and compliance with the club’s dress code. It did not initially occur to him that his duties might extend to refusing entry to persons who were intoxicated or aggressive, or ejecting persons from the nightclub. He said that he began to realise that it was possible that he would be called upon to perform such tasks towards the end of his period of employment, and that it was for that reason that he gave it up.

72. On Monday mornings, he would sometimes not get to bed at home until 4.00 am, and would need to leave home at 8.40 am to get to work at the ANU by 9.00 am. On those nights he would get no more than four hours sleep.

73. The plaintiff conceded that he had been aware that there had been an incident at the Cube nightclub some time before he started working there, in which a customer or intending customer had been killed. I disclosed to counsel that I was aware of that incident. The proprietor of the nightclub had been acquitted of murder by a judge of this court sitting without a jury, the victim having been one a number of persons who had been attempting to gain entry to the nightclub in the early hours of the morning. There had been considerable publicity about the incident and the trial in Canberra. The information known to me would have been known to many, probably most, people in Canberra. I was satisfied that these were matters of common knowledge for the purposes of section 144 of the Evidence Act 1995, and hence matters of which I was able to take judicial notice.

74. Counsel for the defendant put to the plaintiff that he would not have taken the job at Cube nightclub unless he had believed that he was fully fit and able to carry out all of the duties of a security officer or bouncer working at a nightclub. The plaintiff denied this. He said that he took the job because he was under financial pressure and he knew that his daytime job at the ANU was about to come to an end. The nightclub job “was obviously the wrong job to take as I realised towards the end . . . ”.

75. I found aspects of the plaintiff’s evidence about the Cube nightclub job implausible. It was plainly a job as a bouncer, at a nightclub where, to his knowledge, some time earlier an incident involving intending customers had led to violence and a death. I accept that he worked only on Sunday nights and that Sunday nights were relatively quiet, but I cannot accept his assertion that he saw his duties as limited to checking of identification and dress code compliance. He had undertaken a course which led to his licensing as a crowd controller. The course included training in physical restraint of intoxicated or violent persons. I accept the plaintiff’s evidence that he was not required to deal with any incidents requiring reliance on this training during his employment at the nightclub, but I do not accept that he was unaware that the work might require him to deal with incidents of that kind. It seems to me more likely than not that the plaintiff took the nightclub job on knowing what might be required of him, and believing that he was physically capable of dealing with confrontations with intoxicated or violent customers if the need arose.

76. Three of the plaintiff’s doctors gave oral evidence, having been required for cross-examination by the defendant. They were Dr Eaton, Dr Champion and Dr Ashman. The balance of the medical evidence on behalf of the plaintiff was admitted in report form. This included the reports of the general practitioner, Dr Voon; the psychiatric counsellor Dr Gibson; Dr Chandran, neurosurgeon; Dr Cassar, pain management physician; Dr Brooder, neurologist; and Dr Barnsley, the treating rheumatologist.

77. Counsel for the defendant tendered reports without objection of Dr Billett and Dr Talbot, orthopaedic surgeons who had conducted medico-legal assessment for the defendant; and the clinical notes of Dr Reid of the Sports Medicine Centre, and of Calvary Hospital. The defendant’s solicitors had served a report by Dr Graham George, a Sydney psychiatrist, which was not tendered in the defendant’s case. As is permitted by the rules, counsel for the plaintiff tendered a copy of Dr George’s report in reply.

78. The opinions of the doctors tended to vary depending upon the extent to which they accepted the plaintiff as a credible patient and historian. Generally it may be said that the treating doctors and the doctors qualified on behalf of the plaintiff for medico-legal purposes took him at face value, whereas the doctors relied on by the defendant did not. It must also be said, as I have pointed out earlier in these reasons, that the plaintiff did not always give an accurate and complete history to the doctors. A plaintiff who consciously adopts this course can hardly complain if the Court is generally a little sceptical about him and about his claim.

79. Dr Billett saw the plaintiff in April 2002. The plaintiff told him that in early 1999 he had fallen off his mountain bike and experienced pain in the right shoulder, but had no treatment and became symptom-free. He also told Dr Billett that he had ceased riding his mountain bike and dirt bike during 2000. In relation to the mountain bike at least this was incorrect, as was the history about the mountain bike shoulder injury.

80. Dr Billett observed that the plaintiff has unrestricted rotation of the neck to the left and right when not specifically demonstrating the degree of rotation. On demonstration he displayed a marked decrease in neck movements.

81. The plaintiff also told Dr Billett that he had experienced pain in the lumbar region towards the end of 2000. Dr Billett considered that the lumbar pain bore no relationship to the motor accident. None of the treating doctors mentions lumbar pain as a consequence of the motor accident and I accept Dr Billett’s opinion about it.

82. Dr Billett also regarded as significant the short period of time the plaintiff had had off work following the motor accident. He concluded that the plaintiff was deliberately restricting his neck movements when asked to demonstrate them. He thought that the plaintiff had fully recovered from any soft tissue injury to the neck resulting from that accident, and that he was fit to return to work full-time without restriction.

83. Dr Talbot saw the plaintiff in December 2006. By this time the plaintiff had had a great deal more treatment than when he saw Dr Billett. Dr Talbot accepted that the plaintiff has suffered a musculoligamentous injury to the neck in the motor accident. He would have expected such an injury to settle within weeks or months. The plaintiff contended that his symptoms had remained ever since, and this was supported by some apparent muscle wasting at the base of the skull, though Dr Talbot thought that this might have been a consequence of the numerous injections he had had in the area. Dr Talbot regarded it as significant that an MRI scan of the cervical spine had detected no abnormalities. He concluded that the plaintiff was suffering from some type of chronic pain condition, not within his field of expertise as an orthopaedic surgeon. He could not come up with an organic diagnosis to explain the symptoms. He accepted that the plaintiff was incapacitated for work but thought that this was on subjective grounds, there being no apparent organic cause for his chronic neck pain. In his opinion there was no orthopaedic reason for the plaintiff being unfit to work, though there might be reasons related to the claimed post-traumatic stress disorder or to some kind of pain disorder not within Dr Talbot’s expertise. He suggested obtaining opinions from a psychiatrist and a chronic pain management specialist.

84. A year later Dr Talbot was asked to express an opinion, without seeing the plaintiff again, about the effect of an ununited fracture of the right scaphoid on the plaintiff’s ability to work as a builder and carpenter. He noted that the plaintiff was right-handed. His expectation was that such an injury would be associated with frequent pain, restriction in range of movement of the wrist and the base of the thumb, and impaired weakness of grip. He thought that these problems would cause difficulties for the plaintiff in the use of tools such as a hammer, nail gun, power saw and planing machine.

85. Dr Talbot was informed that the plaintiff had had surgery on the right wrist in November 2004, that is two years before Dr Talbot saw him. I should add that Dr Talbot had not been provided, in the assumptions he had earlier been asked to make by the defendant’s solicitors, with any information about the injuries to the plaintiff’s right wrist, the radiological diagnosis of a fracture to the scaphoid, or the surgery he had undergone. Nor, as I have previously mentioned, did the plaintiff volunteer anything about these injuries when giving a history to Dr Talbot during his consultation with him.

86. Dr Talbot would have expected the surgery in November 2004 to have reduced the symptoms in the wrist, though he thought that the plaintiff’s ability to carry out his usual work as a carpenter and builder would probably have been impaired to at least a moderate degree. He thought that sustained use of hammers and nail guns would be practically impossible for a person with an ununited scaphoid fracture. He could recall having seen two carpenters who had had to assume restricted activity and early retirement following right scaphoid fractures.

87. He thought it very likely that premature arthritic changes would have resulted from the fracture, though this would depend to some extent on the radiological appearances of the bones and their position after surgery. He could not say with any precision when arthritis was likely to develop. He “would have still expected there to have been a definitely increased chance of developing premature post-traumatic osteoarthritis in his early 50s at the latest, bearing in mind that the fracture line involved the articular surface of a carpenter’s wrist joint”. He said that with the added risk factors, including the delay in surgery and the use of a bone graft, and the likelihood that a completely anatomical reconstruction was not achieved, he would consider that an arthritic condition would develop insidiously from the date of injury, and would be visible on x-ray within five to ten years, although he said that this opinion involved “considerable estimations, because of unavailability of radiological evidence”.

88. Dr Eaton, who had treated the plaintiff in his pain management clinic in the early stages, and was generally accepting and supportive of the plaintiff, was cross-examined. It was put to him by counsel for the defendant that one would expect the effects of an injury such as that suffered by the plaintiff in the motor accident to have been most severe in the weeks and months following it, with the condition subsequently settling if not disappearing entirely. Dr Eaton agreed that this was the usual course one would expect. He said, however, that where there was injury involving the facet joints in the cervical spine there could be permanent symptoms. He described the facet joints as an enigma. They often caused continuing intermittent headaches and neck pain indefinitely. Most people injured in motor accidents improved over a period of time, with the percentage of people having long-term problems being relatively small.

89. Dr Eaton was also asked about the significance of restriction, or lack of it, in neck rotation. He said that range of movement of the neck was an aspect of the condition, but not the most important. Some people could have good neck movement but still have symptoms. The range of movement could vary from one day to another.

90. Dr Champion, as I have said, treated the plaintiff and sent him to Dr Barnsley for further treatment by way of injection. Dr Champion thought that the plaintiff was suffering from chronic regional pain whiplash-associated disorder, probably involving the left C1-2 facet joint. He thought that the plaintiff’s symptoms were likely to continue in much the same way for the foreseeable future, making it very difficult for him to return to work as a carpenter or builder, and interfering markedly with his capacity to work full-time in related fields. It would be difficult for him to study and concentrate in order to qualify for other employment. Dr Champion’s opinion was consistent with the evidence of Dr Barnsley, that the C1-2 facet joints were extremely difficult to anesthetise for diagnostic purposes, or to treat. Dr Barnsley was strongly suspicious that the plaintiff’s pain was coming from the left C1-2 facet joint although he could not decisively prove or disprove this. Dr Barnsley thought it more likely than not that the plaintiff would have continuing pain at or about his present level.

91. Dr Champion was cross-examined by counsel for the defendant. He agreed that a specialist in his position was reliant on the history he was given, in addition to the physical examination of the patient. He thought that the kind of work the plaintiff had been doing as a laboratory assistant at the Australian National University was beneficial for him and within his capacity. He thought that within a year or so the plaintiff should be able to increase his working hours to five days a week as long as the work remained light. The plaintiff remained vulnerable to his neck condition being exacerbated by what he described as undue biomechanical provocation, for example a fall or stumble, or a lifting strain.

92. Dr Ashman operated on the plaintiff’s right wrist in November 2004 to deal with the fracture of the right scaphoid. He saw the plaintiff again in January 2008, just before he gave oral evidence. The plaintiff told him that he had not gone back to work as a builder or carpenter since the operation. He had experienced no pain in the right wrist in the three years since then, but was aware of slight reduction in flexibility. He thought that he had normal grip strength, with no symptoms on bench-pressing weights up to seventy kilograms. On examination Dr Ashman found no obvious deformity or swelling of the right wrist. There was a 10% loss of flexion and extension but no appreciable loss of grip strength. An x-ray taken on the day of that consultation showed what Dr Ashman described as “a well-established non-union of the right scaphoid, despite the presence of an internal fixation screw”. Dr Ashman expressed the view that the plaintiff’s capacity to work as a builder or carpenter would not be affected to any significant degree by the condition of the wrist. He thought that if the plaintiff was still using power tools, any symptoms in the wrist as a result would be minimal, and that the wrist condition would not have been likely to have had any significant impact on the plaintiff’s ability to work as a builder or carpenter since November 2004. Use of hammers, nail guns and power tools might cause some mild symptoms if used on a regular basis.

93. Dr Ashman said that the plaintiff was statistically likely to suffer from arthritis in the right wrist, with the condition developing within ten years of the original injury, and observable on x-ray. The x-ray just taken showed no evidence of arthritic changes three years after the surgery and six or seven years after the original injury.

94. In the course of cross-examination, Dr Ashman said that it was possible that if the plaintiff had continued to work as a builder and carpenter, he might have developed moderate symptoms in the right wrist, but it was also possible that he might have had minimal symptoms or none at all.

95. Dr Ashman was asked by counsel for the defendant whether, if the plaintiff started work as a carpenter again, he would be likely to develop symptoms which would eventually lead to his stopping work. His answer was that there was a less than fifty percent likelihood that the plaintiff would develop symptoms which would be disabling to that extent. He agreed that the risk, while less than fifty percent, could reasonably be described as a significant risk. If it came to pass, the symptoms would be likely to develop within five to ten years.

96. Dr Ashman thought that, regardless of the kind of work the plaintiff did, there was a fifty percent chance that he would develop osteoarthritis in the right wrist before he was fifty, with more than a twenty-five percent chance that he would develop such changes within ten years. If the plaintiff was in the group of people likely to develop arthritis following an ununited scaphoid fracture, then Dr Ashman would expect such changes to develop between five and ten years after the original injury. However, no signs of arthritis could be seen on the January 2008 x-ray. This had extended the period within which there was a risk of the plaintiff developing symptoms, and reduced that risk within the next two to three years.

97. Dr Ashman agreed that it was possible that there might be indicators of osteoarthritis in the wrist which could not be detected on x-ray but might be found on a more detailed radiological investigation. Despite this, he regarded the x-ray as a good indicator of the present position, confirmed by the fact that the plaintiff was unaware of any symptoms to date.

98. Dr Ashman has been practising as a specialist orthopaedic surgeon since 1989. Whilst his main interest is in spinal surgery, he has dealt with fractures of the scaphoid not infrequently over the years.

99. Dr George, the psychiatrist qualified by the defendant’s insurer, saw the plaintiff in November 2001. He diagnosed the plaintiff as suffering from an adjustment disorder with anxious and depressed mood, and also a pain disorder related to his physical injuries. Both were substantially related to the motor accident. Dr George accepted the plaintiff as genuine in presentation. He thought that the plaintiff had a positive attitude towards his condition and that his prognosis was therefore quite reasonable.

100. There are two major issues to be determined on the medical evidence. The first is whether the plaintiff suffered a physical injury in the motor vehicle accident which is continuing to produce neck pain and consequential symptoms. Dr Champion takes the view that the plaintiff’s symptoms can be explained by trauma at the left C1-2 facet joint. He generally accepts the plaintiff’s complaints of pain and regards them as consistent with an injury at that level. This is supported by Dr Barnsley. I accept both as having considerable relevant expertise for the purpose of expressing such an opinion. The hypothesis cannot be definitively proved in the present state of medical knowledge. Their opinion is supported by Dr Brooder, a neurologist in private practice of considerable experience though perhaps not the same level of specialist expertise in pathology at the C1-2 level.

101. Dr Billett thought that the plaintiff had completely recovered from a conventional whiplash injury, when he assessed him in April 2002. Dr Billett has not seen the plaintiff since, or expressed any opinion based on the more recent reports. He is an orthopaedic surgeon. He thought that the plaintiff was feigning his restriction of neck movement and seems to have concluded from that that he was exaggerating if not fabricating his complaints generally. Dr Billett did not direct his mind to the possibility of pathology at the left C1-2 facet joint. The evidence does not satisfy me that Dr Billett has any particular expertise in injury to that joint.

102. The other doctor relied on by the defendant, Dr Talbot, makes no mention of Dr Champion’s involvement. The plaintiff told him about seeing Dr Barnsley, but Dr Talbot does not seem to have been aware of Dr Barnsley’s speciality or expertise. He says that the plaintiff mentioned C1 and C2 to him but makes no other observation about the possibility of injury in that area. Dr Talbot seems to have accepted that the plaintiff may have been suffering from some chronic pain disorder which was not within his field of expertise.

103. I accept that the plaintiff has suffered, since the motor accident, neck pain of varying intensity, causing some restriction of movement at times, and causing headaches from time to time. There is no doubt that he has exaggerated his symptoms to doctors and to the Court. This creates some difficulty in evaluating his evidence generally. There is no question that the level of his pain was such as to permit him to return to work, if largely in a supervisory capacity, about two weeks after the motor vehicle accident, and to engage in mountain bike riding and dirt motorcycle riding in the early months. The plaintiff tended to overplay the effect of the motor accident on him and to downplay the effects of prior and subsequent injuries, including the injuries suffered in May 2000 when he came off his mountain bike and the injuries he suffered in March 2005 when attacked with a baseball bat. I think that he would probably not have told the Court anything about his wrist injuries in Croatia and subsequently on the Eastwood building site if this had not been drawn from him in cross-examination. Certainly he kept it from some of the examining doctors, although it must have been a serious injury.

104. I accept, too, that the plaintiff’s level of pain was not such as to prevent him from working as a laboratory assistant at the Australian National University in 2007 and early 2008, or from working as a nightclub bouncer at the beginning of 2008.

105. He told Dr Eaton and Dr Chandran in December 2003 that he had decided to stop work after finishing the Eastwood project until he had been compensated. I think that he expressed this intention at a time when he expected that his claim would go to trial much earlier than it did. Nevertheless, I have considerable suspicion that the plaintiff retained, after completion of the Eastwood project, a degree of earning capacity which he chose not to exercise because he did not need to, having regard to the profit his company had made on that project. He conceded that by mid-2007 his money had run out and he needed to work to earn money to live on. In an answer in the witness box criticised by counsel for the defendant as unresponsive to the question, he took the opportunity to launch into some rather emotional criticism of the defendant’s insurer because, he said, they had “stopped paying me probably five years ago”. It seems to me that the measure of the plaintiff’s working capacity is probably reasonably reflected by his working on fairly light duties at the Australian National University four days a week, and in addition working a night shift at Cube nightclub each Sunday. It seems likely to me that he could have exercised his earning capacity to about that degree from about the time he finished the Eastwood project, and indeed probably for almost the whole of the period since the motor accident.

106. I accept the opinion of Dr Champion and Dr Barnsley as to the source of the plaintiff’s continuing symptoms, and as to the fact that they are likely to continue at their present level indefinitely. I also accept that the injury suffered in the motor accident has reduced the plaintiff’s working capacity to its present level, from a level where he was able to work very long hours with high motivation on redevelopment projects, and to work between projects as a contract carpenter.

107. The other issue arising from the medical evidence is as to the effect of the fracture of the scaphoid in the plaintiff’s right wrist. He injured the wrist twice, in Croatia in 2001 and on the Eastwood building site probably in 2002. I am unable to determine whether he fractured the bone in the first or the second incident but it does not seem to me to matter. There is no doubt that by the time of the second incident he had fractured the bone. The fracture did not unite. Dr Ashman operated on it in November 2004. The surgery has left him with “a well-established non-union” of the bone, with a fixation screw remaining in place.

108. Both Dr Ashman and Dr Talbot gave evidence in report form about the effect of this injury, and Dr Ashman gave oral evidence. Dr Talbot had seen the plaintiff a year before expressing his opinion but had been given no history of a wrist fracture and did not direct his physical examination to the wrist at all. His opinion about the wrist was in answer to some specific questions asked by the defendant’s solicitors, without access to the plaintiff, the x-rays or x-ray reports, or any report by the treating surgeon. Dr Talbot describes himself as a consulting orthopaedic surgeon but apparently practises as part of a medico-legal group practice. The only hint he gives of particular experience with scaphoid fractures is his reference to recalling having seen two carpenters who had to restrict their activity and retire early following such fractures.

109. I prefer the evidence of the treating surgeon, Dr Ashman. It seems common ground that the plaintiff has no symptoms in the right wrist. He has not returned to carpentry or construction work since the Eastwood project was completed, and thus the hypothesis that he would have developed symptoms in the wrist if he had continued to use carpentry tools has not been tested. Dr Ashman in January 2008 found very minor restriction of movement in the right wrist with no appreciable loss of grip strength and no pain. He thought that the wrist condition would not have interfered with the plaintiff’s ability to work as a carpenter or builder to more than a minimal extent since the surgery in November 2004. He said that the plaintiff was statistically likely to suffer from arthritis in the right wrist in the future. Symptoms and signs of arthritis could be expected to develop, I take it in a hypothetical average person of the plaintiff’s age, within ten years of the injury. The plaintiff, some three after the injury, showed no changes on x-ray and no symptoms, and Dr Ashman said that it was unlikely that he would have developed arthritis within that period even if he had continued work as a carpenter.

110. In cross-examination, Dr Ashman thought that there was something less than a fifty percent chance that the plaintiff would develop disabling symptoms in the future if he were to start work as a carpenter in 2008. He was unable to say how much less than fifty percent, for example whether the percentage chance lay between forty percent and fifty percent. All he could say was that there was a quantifiable risk. If the risk materialised, it would be likely to do so within a five to ten year timeframe. Dr Ashman subsequently expressed the view that, in broad terms, there was a fifty percent chance that the plaintiff would develop osteoarthritis in the right wrist before the age of fifty, regardless of whether or not he worked as a carpenter. There was a twenty-five to fifty percent chance of osteoarthritic changes appearing within ten years.

111. Dr Ashman qualified this by saying that if the plaintiff “was in the group of people who will develop osteoarthritis following an ununited scaphoid fracture, then [he] would have expected those changes to develop between five and ten years after the original injury”. Dr Ashman was giving this evidence some six to seven years after the injury, no signs or symptoms having become apparent by then. This reduced the risk for the plaintiff of developing arthritis within the next two to three years.

112. I am required in assessing damages to take account of the possibilities and probabilities emerging from Dr Ashman’s evidence, in the manner expounded by Deane, Gaudron and McHugh JJ in Malec v JC Hutton Pty Limited [1990] HCA 20; (1990) 169 CLR 638.

113. A further matter to be taken into account in the assessment of damages is that the plaintiff is something of an entrepreneur. His late father had run his own building company, and the plaintiff continued to run that company after his father’s death until completion of the Eastwood project in 2003. More recently he has devoted considerable time and effort to the design, manufacture and marketing of two products he has invented and developed, one being a waterskiing wakeboard cover and the other a mountain bike shoe cover. He has not made any profit out of these endeavours so far but he may well do so in the future. His endeavours to this end are indicative of a degree of skill and motivation well beyond that displayed by the typical builder or carpenter. I suspect that regardless of the motor accident, the plaintiff would have devoted some time and energy to projects of this kind, and that he will continue to do so in the future. I am not satisfied on the evidence that the plaintiff’s injuries have impaired his capacity to earn income from such entrepreneurial activity.

114. Prior to the motor accident, the plaintiff led an active social and sporting life, which he fitted in with long hours of work. His neck pain and headaches have reduced to a moderate degree his capacity to engage in social and sporting activities, as well as in the workforce.

115. The plaintiff’s evidence is that if it had not been for the motor accident, he would have continued with building development projects like those at Ainslie and Eastwood as they became available. Between projects, he would have engaged in contract carpentry. I am satisfied on the evidence that projects of that kind are far more profitable in a rising real estate market and indeed that there is far more building and construction activity in such a market. I take judicial notice of the fact that the building industry tends to be cyclical. The Ainslie and Eastwood projects were carried out at a time of increasing house and land prices. We have now entered an economic downturn and, at least anecdotally, demand for land and houses has reduced significantly. Money is tighter and there are signs of falling prices in Canberra and in Sydney.

116. I accept that the plaintiff would have continued to work in the building industry and would have taken advantage of redevelopment opportunities as they arose. Over his working life there would have been, and will be, good times and bad times for the construction industry. The plaintiff was not earning a regular wage or salary. It will be necessary for me to make an estimate of his pre-accident earning capacity, from cause of action to judgment and from judgment into the future, and to compare this with my assessment of his post-accident earning capacity. The impairment of earning capacity caused by the motor accident is to be compensated in damages only to the extent that it would probably have been reflected in loss of earnings. The other side of that coin is that credit must be given for the plaintiff’s residual earning capacity even if I take the view that he is unlikely to exercise that capacity to the full.

117. For general damages for pain and suffering and loss of enjoyment of life, I propose to award $80,000.00, apportioned as to $35,000.00 for the past and $45,000.00 for the future. The past component attracts interest at 4% per annum for the period of nine years since the motor accident. The past component is however to be notionally spread over the period, weighted slightly towards the weeks and months immediately after the accident. For interest on the past component of the general damages I allow $7,000.00.

118. The defendant’s insurer has paid some of the plaintiff’s treatment expenses. The amount paid is $7,893.15. Counsel for the defendant has asked me to include that amount in the award of damages, but to give the defendant credit for it, that is to say, to note that the judgment ultimately awarded should be regarded as satisfied to that extent. Whilst I can see an argument that this approach does not accord with principle, I recognise that it is a course regularly adopted in actions for damages for personal injury. Counsel for the plaintiff does not urge me to adopt any other course and in the circumstances I propose to accede to the request.

119. $486.65 has been paid by Medicare for certain treatment expenses, and the plaintiff will be required to pay that amount back out of his damages.

120. It is agreed that by the completion of the hearing the plaintiff had personally paid treatment expenses of $15,248.58 for which he has not been reimbursed. He seems to have incurred expenses of about $500.00 during the calendar year 2007. I use that as a guide to a figure he is likely to have spent during 2008. Taking account of all those figures, I allow $24,000.00 for past treatment expenses.

121. The expenses paid by the plaintiff attract interest at the prescribed rate of 9% per annum. He has incurred and paid for these expenses at varying rates over a period of just on seven years since the insurer ceased payments. The expenses were greater during the earlier years and have become a little lower in more recent times. I allow interest of $5,000.00 on the past treatment expenses paid by the plaintiff. The amounts paid by the insurer and by Medicare do not attract interest.

122. The plaintiff claims $740.00 for a nail gun and $204.00 for a planer. His evidence is that his existing tools were too heavy, and he bought lighter ones in the hope that his symptoms would not be aggravated to the same extent by the use of these lighter tools as they had been by the heavier ones. There is no evidence about the cost or age of the older, heavier tools. I find on the evidence that the old tools were the property of the company Innovative Homes Pty Limited and that the new tools were purchased by that company in September 2000. I would expect that the company either obtained a tax deduction for them in the year of purchase, or depreciated them over time. I have no way of knowing whether the company would have needed to buy a new nail gun or planer in any event. It seems to me that this expenditure by the company is too remote from the plaintiff to justify any allowance in his special damages.

123. This brings me to loss of earning capacity. Counsel for the plaintiff conceded that, notwithstanding the evidence of Mr Davis of Macquarie Reporting Services, the evidence did not enable the Court to arrive at figures for past or future impairment of earning capacity by a process of mathematical calculation.

124. Doing the best I can on the material available, including the tax returns of the plaintiff and the company, I am inclined to the view that the plaintiff’s capacity to earn income but for the injuries he received in the motor accident, averaged over the period since then, equates to something like $90,000.00 to $100,000.00 a year after tax. During the period at the end of 2007 into early 2008 when he was working at the Australian National University and also at Cube nightclub, he was able to earn an amount equivalent to $60,000.00 a year after tax. I take account of the fact that whilst he proved capable of undertaking the university work, it was not available to him on a permanent basis. The evidence does not enable me to find that the plaintiff will be able to find permanent work yielding that kind of annual income. Indeed, the injuries have not simply reduced the annual amount he is capable of earning, but have also limited his chances of finding employment, particularly in an economic downturn.

125. At the same time, I take account of the fact that the plaintiff was able to engage in the Eastwood project as a joint venture, notwithstanding his injuries. He does not seem to have made any real effort to identify other such projects after Eastwood was completed. He might have been able to earn income in that way if he had put his mind to it, and he may be able to do so in the future, although, I accept, probably not in the present economic climate.

126. I see his capacity to earn income from his inventions as a neutral factor in the calculation of damages. This is something he might well have done regardless of his injuries, and something which he may earn income from in the future notwithstanding his injuries.

127. Using those figures as a basis, it seems to me that a reasonable amount to compensate the plaintiff for his impaired earning capacity as a result of the injuries he suffered in the motor accident to the date of judgment is $200,000.00. That component of the award attracts interest at 9% per annum for the period of nine years since the car accident, although the award is to be apportioned over the period. Having regard to inflation, the apportionment would be weighted more heavily towards the present and less so towards the early part of the period. I allow $70,000.00 for interest on past economic loss.

128. In relation to the future, I take account of the fact that the plaintiff is now thirty-five years of age. I take account of the chance that he would have developed arthritis in the right wrist, having regard to the periods of time and percentages which emerge from Dr Ashman’s evidence. I take account of the fact that the plaintiff may still have the opportunity to participate, perhaps on a joint venture basis, in building development projects in the future.

129. I note that the multiplier for a man of thirty-five to age sixty-five with reference to the 1997-99 Australian life tables was 1,003.80, with respect to a weekly loss. That figure can be expected to have increased slightly since those tables were published.

130. In addition to the other factors I have mentioned, I am obliged to take account of the vicissitudes of life generally. The conventional approach in that regard is to apply a reduction of 15% to the lump sum which might otherwise be awarded.

131. Taking all of those matters into account, I allow, for compensation for loss of earning capacity for the future, the sum of $400,000.00.

132. The weekly multiplier for a thirty-five year old male to death under the 1997-99 tables was 1236. During 2007 the plaintiff spent about $500.00, or about $10.00 a week, on treatment expenses. The present value of such expenditure for the rest of the plaintiff’s life, after taking account of the conventional 15% reduction for vicissitudes, is $10,500.00. That figure seems to me a little high: I allow $8,000.00 for future treatment.

133. Although a claim was made on behalf of the plaintiff for a Griffiths v Kerkemeyer component in the pleadings and particulars, this was not pursued on hearing. Nor was any claim pursued in respect of loss of superannuation benefits.

General damages	$ 80,000.00
- interest on past component	$ 7,000.00
Treatment expenses - past	$ 24,000.00
- interest thereon	$ 5,000.00
Treatment expenses - future	$ 8,000.00
Loss of earning capacity - past	$200,000.00
- interest thereon	$ 70,000.00
Loss of earning capacity - future	$400,000.00
Total	$794,000.00

135. On reflection, that amount appears to me to represent a proper reflection of the impact upon the plaintiff of the defendant’s negligence. There will be judgment for the plaintiff for $794,000.00. The defendant is to have credit out of that sum for the treatment expenses previously paid in the sum of $7,893.15. I shall hear the parties as to costs.

I certify that the preceding one hundred and thirty-five (135) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Supreme Court of the ACT

Musladin v Owen [2009] ACTSC 2 (6 February 2009)