Young v Rothin [2009] ACTSC 71 (1 July 2009)

NEGLIGENCE – motor vehicle accident – rear-end collision – liability admitted.

DAMAGES – personal injury – motor vehicle accident – whiplash injury – ongoing pain and psychological sequelae.

DAMAGES – personal injury – buffer – when appropriate – when probability should be assessed.

DAMAGES – personal injury – loss of earning capacity – to be distinguished from loss of earnings.

Luntz H, Assessment of Damages for Personal Injury and Death (4th ed, LexisNexis Butterworths, 2002)

3. Mr Young is now 50 years old. Born in Scotland, he has a brother in Scotland. He went to school in Scotland; he won a bursary to a private school and then commenced an apprenticeship with a company of electrical engineers. He completed his apprenticeship and became an electrician in 1979.

4. He continued to work as an electrician but was promoted to the position of supervisor and then project manager. He became superintendant of works at the Strathclyde Council.

5. A list of Mr Young’s significant qualifications was tendered showing that he had obtained a number of certificates and statements of attainment, including as a Workplace Trainer, and a Diploma of Project Management from the University of New England. He gained some of the certificates from specific corporations licensing him to install and certify the systems of those companies.

6. He clearly was keen on his work and undertook to extend his knowledge and re-educate himself.

7. In 1987, he migrated to Australia, initially working at the Dell Power Station in Muswellbrook. He qualified as an electrical mechanic in Australia in that year.

8. In July 1987, he came to Canberra and commenced working with a firm called Kilpatrick Green. In 1988, he commenced work as an electrician for another business, Kennedy and Taylor. During this time, he worked mostly in Parliament House.

9. In 1991 he qualified as a certified communications installer for the American Telegraphic and Communications Company. He worked in data communications installing the cabling infrastructure for computer terminals.

10. During this time, he established a particular interest in promoting Scottish culture. He became Chairman of a Pipe Band which was organised through the Burns Club and which made CDs that he (and, no doubt, others) sold to raise money to help support school children interested in the pipe band.

11. He also set up a link with bands in Scotland, such as the Shotts and Dykehead Pipe Band, and encouraged members to migrate to Australia and to join his band. His band would also send members to Scotland to play with bands there. The band had similar arrangements in Canada and was working towards an arrangement in South Africa. Mr Young was clearly quite involved in these arrangements. He set up what he called a college, training the band members on Saturday mornings and Thursday evenings.

12. In 1994 he and his wife adopted his son from Taiwan and in 1997 adopted his daughter from the same country.

13. In 1995, Mr Young made a claim for workers’ compensation arising out of an injury to his lower back caused by stretching to get some files and picking them up while at a bad angle. He received physiotherapy for this injury and does not remember having to take any time off work for it. He reported that the treatment fixed this problem with his back.

14. In 1996, he undertook some contract work with Minesco Industries Pty Ltd, ceasing that work in May 1997. He commenced workers compensation proceedings against the company on the basis of stress caused by harassment he suffered at the hands of senior staff in the company. The proceedings were settled. He had a number of consultations with a clinical psychologist, Mr Leigh Nomchong. He stated that he recovered completely from the stress.

15. He then worked for a company, Stevenage Pty Ltd, a company in which he had apparently a joint interest. His co-owner took some money to which he was not entitled and this caused Mr Young much stress. He was referred again to psychologist, Mr Nomchong, and had to take time off work. He took some time off and Mr Nomchong reported improvement.

16. He undertook further education, gaining some of the certificates mentioned above, including in Workplace Training. He also commenced a degree in Value Management at the University of Canberra.

17. In 1999, he registered a company called Celtic Connections ACT Pty Ltd (Celtic Connections). He had earlier, in 1993, registered another company called Relikan Pty Ltd and later he changed its name to Face Value Solutions Pty Ltd (Face Value).

18. He had a co-owner in Celtic Connections, but bought him out after the accident.

19. Face Value engaged in facilitation and some value management and project management. It had no employees other than Mr Young.

20. Through Celtic Connections, he undertook electrical and communications work. He employed four people, who were qualified in both areas. In this work, he had to install cables on building sites and in offices. It involved him getting the cables into ceilings, down walls and down shafts.

21. In addition to his Scottish cultural interests, Mr Young has played soccer since he came to Australia until the accident. He played for a local team, training twice a week and playing at the weekends. He also coached a women’s soccer team in Tuggeranong.

Mr Young actively participated in the programme and reported applying the strategies particularly those related to the pacing of activity. He has a greater understanding of his condition and subsequently Mr Young reports feeling more confident in his ability to manage along with being able to gradually increase his general activity level. His use of relaxation exercises has also been beneficial in the management of his symptoms.

Mr Young has engaged well in individual sessions, displaying an eagerness to address his symptoms. He participates actively in sessions and reports active application of strategies in between sessions.

... Mr Young is likely to benefit from further individual psychological treatment to address his symptoms of PTSD... In the absence of further treatment, it is my professional opinion that many of his symptoms would persist sufficiently to complicate his experience of pain and physical rehabilitation.

34. Mr Young continued to work at the gym at the CIMC and was appointed a specialist trainer, Mr Tony Robb. He used the Swiss ball and undertook exercises that were prescribed for him. They were to be undertaken every day as many times as possible and included stretching exercises to build up the muscles in his back and to relieve the strain on his neck.

35. This provided considerable improvement to Mr Young’s condition and he was complimentary and enthusiastic about it.

36. He also saw a psychologist at the CIMC, Ms (now Dr) Belinda Barker. He met with her initially about once a month and, again, he found her treatment very helpful. In particular, she addressed issues of memory loss, pain management and anger management.

37. The treatment provided meant, as he described to me, that he had “improved out of sight, there was no doubt”.

38. More recently, he has built up a gym at home and exercises there, though he sees Mr Robb about every six months.

39. He has kept in contact with Dr Barker. His attendance there, however, has been less regular. For a period he was not seeing her, but he told me that, more recently, he has been seeing her once a week and currently about once a month.

41. Mr Young complains of a number of continuing disabilities, despite the treatment he has received and his response to it.

42. He did say in evidence before me that he felt that he had improved as much as he was going to improve – “I’ve gotten to the stage now where I feel as if I’m as good as I’m going to get ... there’s no doubt I’ve improved ... [but] I’ve gotten to the stage where there isn’t anything left. I can’t really do much more”. Despite this, he appeared optimistic, later saying “I don’t propose to give up trying, but ... there comes a point where I feel I’ve done all I can do, but I don’t propose to give up it’s not in my nature”.

43. That view had some support from the medical and other experts who examined Mr Young but it was not the predominant view, though such prognosis has always to be treated with caution, both as to the prospects of further improvement or no further improvement.

44. He continues to take three or four Neurontin a day, a drug to relieve nerve related pain, one Prothiaden, a drug used to treat depression, and a couple of Panadeine Forte, a relatively strong analgesic. He can take up to about 100 Panadeine Forte a month, though the dosage has decreased over time.

45. He experiences pain in his left shoulder and in his left arm. He gets tingling in his fingers and pains in the ear. He experiences frontal headaches and pain in his thoracic spine. He also experiences pain through his left groin and his left leg.

46. He has difficulty concentrating and this led him to give up certification work. He also has some difficulty with his memory.

47. I refer to the effect of his disabilities on his work and private life below.

48. He put on weight after the accident. He normally weighed about 98-100 kilos before the accident but his weight increased to 127 kilos. His weight later dropped to about 92-93 kilos and is now at about 104-105 kilos.

49. A number of activities can bring on pain. These include a number of household duties, dealt with below.

50. Mr Young has been diagnosed with depression and other mental challenges. These are more fully dealt with below.

51. Mr Young was described by his wife as ambitious, determined and hard-working. She described his as a family man, “family oriented”. He was a good father and played with his children. He was especially attached to them for, as Mrs Young said in evidence, “we waited a long time for our children and so they are and they were a priority for him”. She described their relationship as “a team”.

52. The accident had a significant effect on this. He became irritable and prone to bursts of anger. He described himself shouting at his wife and children “for no apparent reason”. He became impatient with them and, indeed, yelled at the children enough to frighten them.

53. He also found himself cutting off contact with his friends and those who were part of his “support structure”. Some of this was connected with feelings of shame that he could not work out.

54. More recently, he has improved. He has become more active with the children, helping them with their homework and sitting and talking with them, especially his son. In June 2007, Mr Young took the family on a holiday to Scotland. He has become more engaged with his family.

55. He has, however, ceased his involvement with the pipe band and has no involvement with it at present. He also stopped playing soccer and coaching the women’s soccer team. He clearly is unlikely to return to playing soccer.

56. In about March 2003, Mr Young attempted to return to work. This, however, was not immediately successful and he had “a gap” until about September 2003.

57. He tried to get back to electrical work but anything that required him to reach above his shoulders or to stretch his neck or raise his arms caused sufficient pain so as to be unbearable.

58. He tried testing and inspecting electrical work under relevant government building regulations, combined with undertaking any necessary remedial work and, if appropriate, certifying it. He was, however, only able to do this for a few months because his memory loss and lack of concentration meant he could not adequately carry out the work.

59. He also tried to return to data cabling work but, as was clear from, in this regard, the almost unanimous view of the medical experts, he was not able to carry out this work.

60. Instead he started on what he described as “paperwork”. This was sedentary work principally for Face Value. The work was project management. He started off at about an hour a week and built it up gradually until it became 20 hours a week in about 2004.

61. He did start to build up to 30 hours, but this was not possible for him to sustain.

62. He gave evidence that in 2004 his company entered into a contract with ACTTAB Ltd (ACTTAB) for consultancy services. Under the contract, he was to facilitate the design, documentation, supervision and delivery to completion of communications for the new head office of ACTTAB and some other services. Mr Young was, under the contract, the specified personnel to do the work “unless otherwise agreed”. The contract actually tendered, however, was undated but was accompanied by letters suggesting that it was signed in late August 2006. The term specified in it was stated to commence on 1 January 2006. Mr Young said that his work pre-dated the written contract and that, despite the expressed term, he had been working under those terms since 2004.

63. The contract provided for a lump sum of $110,000 including GST for the core consultancy services paid by instalments, the last paid in May 2007, plus $192.50 per hour (being $175.00 plus $12.50 GST) for additional services provided. This work was predominantly done in the ACTTAB Building. The hours were flexible but specified up to a maximum of 20 hours per week unless otherwise specified.

64. There was some cross-examination as to the hours of his work. I found that quite confusing. It appears from this cross-examination that Mr Young was paid for travelling time also at the hourly rate. This amounted to an hour or two a day.

65. This may explain why the hours of work for 2006 shown in Ms A McIntyre’s report shows approximately 30 hours per week on average. In 2007, however, the hours worked fell to below 15 hours per week on average. To be paid for travelling to and from work is an unusual arrangement. It does not appear to have continued to any extent into 2007 or 2008.

66. In this work, Mr Young was required to co-ordinate consultants, including architects and engineers, draft and review documents, discuss technical issues with consultants and report to ACTTAB. He also reviewed the lease agreement for ACTTAB.

67. He employed staff to assist. He became supervisor to a young project manager. He also employed other people from time to time.

68. Later he established a further company called Face Value Solutions ACT Pty Ltd. The precise purpose behind this was never made entirely clear.

69. Since the accident, Mr Young has had a number of offers of employment. This shows that he certainly had prospects of work were he able to take them up.

70. He had an oral offer of employment from the boss of a friend, Mr Kevin Windross, for a company based in Perth. The work, however, required a basic 60 hours per week, beyond what he was capable of doing.

71. He was offered “10 years work” in project management for John Hindmarsh, whom I understood to be the very successful Canberra builder and developer. Again, the likely expected hours prevented him taking up the offer.

72. He was also offered work by a friend of his to work in Newcastle. The offer came from a friend, a Mr Stevens, of the company McLeod & Stevens Pty Ltd. Again, it was a full-time position which Mr Young felt unable to accept because of his disabilities. Mr Young was cross-examined at some length about the circumstances of this offer. I accept that Mr Young, perhaps through the shame earlier referred to, did not disclose to Mr Stevens the extent of his disability, at least until he rejected the offer.

73. In evidence, Mr Young indicated that he felt that the ACTTAB job was getting too onerous and that he planned to end it in June 2008.

74. He was looking for other sedentary work which he could manage. This would involve a co-ordination role, including group work where he does not have to be the leader. He was confident that such work would be available. He planned to work about 20 hours per week, though clearly more if he was able.

75. Each party tendered without objection a bundle of medical reports. None of the authors were required for cross-examination and none gave oral evidence. This made it a little difficult to resolve issues where there was a conflict. Some of these issues could be resolved by the way the case was conducted.

76. Mr Young tendered reports from his treating medical personnel as well as some medico-legal reports. He also tendered some reports about the prior medical interventions he had experienced. Save to note them, and that the relevant practitioners dealing with his present disabilities and symptoms were made aware of them, I do not analyse these earlier reports as they do not appear to add much to the issues I have to resolve.

77. Dr Eaton is an occupational physician and Mr Young was referred to him in 2003 for assessment and possible assistance with the management of his medical condition. Nine reports of Dr Eaton were tendered, some were not much more formal than repetitions of earlier reports.

78. Dr Eaton recounted a history consistent with the events recounted to the court by Mr Young. He diagnosed Mr Young from the history, symptoms reported by Mr Young and his examination as having suffered a severe whiplash injury to the spine with multiple soft tissue injuries and which quite severely affected Mr Young both physically and psychologically. He indicated his view that Mr Young suffered from post-traumatic and cervicogenic headaches, associated symptoms of anxiety and depression and persistent neurogenic spinal pain.

79. He emphasised the need for attention to Mr Young’s psychological health, a matter subsequently attended to at the CIMC and with counselling provided by Dr Belinda Barker.

80. He formed the view that Mr Young’s present condition was not related to the previous medical matters which had been reported and, on the balance of probabilities, opined that his present condition was both directly and consequentially related to the injuries sustained in the motor-vehicle accident of 11 December 2002.

81. Dr Eaton expressed the opinion that Mr Young would not be able to return to his job as an electrician which involved the laying of cable and associated work.

82. By 2004, Dr Eaton reported that Mr Young had made “tremendous gains” with his treatment, but noted that with increasing hours of work his pain and discomfort increased and that his improvement had “plateaued”.

83. Dr Eaton reviewed Mr Young’s condition again in 2005 and noted that his maximum hours of work were between 15 and 20 hours per week. Mr Young, he reported, had tried to extend these hours but had found that it was not possible. His condition had stabilised and Dr Eaton did not expect a significant change in the short to medium term. He noted that Mr Young was motivated to improve and enthusiastically embraced all treatment offered and provided. He was a conscientious participant in all the programmes he was offered at the CIMC. He was also of the view that Mr Young’s condition may improve over time.

84. The 2006 review by Dr Eaton was similar, but he did note that Mr Young had tried extremely hard to improve.

85. In 2007, Dr Eaton gave a quite similar account in his review. Despite attempts to increase his working hours, Dr Eaton reported that pain was still an inhibitor to this. He noted Mr Young’s consistent report of symptoms and felt that Mr Young’s maximum working capability was 20 to 25 hours per week. He was also of the view that psychological factors were significant.

86. Dr Eaton’s views are significant for he is the specialist with the longest care of Mr Young. He had the longitudinal experience to assess his improvement and the adequacy and accuracy of his symptoms and their report.

87. Physiotherapist Heather Bond saw Mr Young on 18 December 2002, shortly after the accident and then provided some continuing treatment.

88. Her report set out a history consistent with that given in evidence by Mr Young. Dated in 2003, the report made it clear that Mr Young’s condition at that time, described in the report as consistent with the evidence given of the cause of his condition, had not then stabilised. Ms Bond did not prognosticate on his likely incapacity, though her view at that stage was that his condition would improve and had not stabilised.

89. She described the treatment provided but otherwise the report does not assist in the critical issues in this case.

90. Mr Young attended the CIMC in late 2003 on the recommendation of Dr Eaton. Initial assessment reports were provided by Ms Belinda Barker, psychologist, and Mr Jac Cousin, physiotherapist.

91. Ms Barker diagnosed a Pain Disorder due to a medical condition and psychological factors and Post-Traumatic Stress Disorder and recommended that Mr Young participate in a cognitive behavioural pain management programme.

92. Mr Cousin made a “provisional diagnosis” of chronic neurogenic spinal pain and cervicogenic headaches. He recommended, in addition to a psychological assessment (which, presumably, Ms Barker was providing), manipulative physiotherapy to begin a self-exercise programme and a pain management programme.

93. A further report was prepared following an initial six week cognitive behavioural management programme. It reported that Mr Young had actively participated and that it had some success. Mr Young had also attended individual treatment to address pain management, injury adjustment and symptoms consistent with Post-Traumatic Stress Disorder.

94. Mr Young, it was reported, “has engaged well in the individual sessions, displaying an eagerness to address his symptoms”. He was said to be responding well, gaining confidence in managing his pain, greater engagement with his family and increasing participation in work related capacity.

96. A further report in early 2004 stated that Mr Young had made “reasonable physical progress with increased functional capacity and reduction in reported pain”. The prescribed exercises were said to be beneficial but, despite the significant gains, there was still a need for ongoing psychological treatment.

97. Dr Corry is a consultant physician in rehabilitation and pain medicine. He was approached for a specialist medical assessment and report first in 2005.

98. Dr Corry recounted the history he had been given which was consistent with the evidence given. Under a heading, “[C]ausation”, Dr Corry reported:

[t]he initial onset of pain discomfort and stiffness in the neck and shoulders is directly associated with whiplash type trauma sustained in a motor vehicle accident on 12 [sic] December 2002. The development of more severe and disabling symptoms is reported to have occurred progressively as is the usual history in soft tissue injury. Recent evidence is that reduced activity, and restriction of movement either because of pain or fear of further damage or injury are major factors in pain and disability becoming chronic.

99. He found Mr Young permanently unfit to return to his pre-accident general electrical and cabling work. He also felt that general activities such as walking, carrying and lifting and handling as well as working in sustained postures such as sitting at a computer would not cause an aggravation of the underlying pathology or produce premature degenerative changes, but that the capacity to perform such activities was dependent on pain tolerance and skills in pain management.

100. The symptoms he noted were consistent with the motor vehicle accident. He also noted that “[e]pidemiological studies have documented that in the order of 14 percent of patients [following motor vehicle trauma] will continue to have recurrent disability”.

101. In a later report dated in 2006, Dr Corry confirmed a diagnosis of persisting chronic neck and left shoulder pain with more severe lower back pain. He noted Mr Young’s report of a reasonably high level of dysfunction, limiting work capacity and affecting psychological function with increased stress levels and family strain.

102. He found Mr Young had shown good determination and motivation to participate in treatment and to improve. His view was that there may still be room for further improvement and made suggestions of a remedial exercise programme.

103. His view was that there seemed to be no reason why he could not perform light sedentary work on a full-time basis in due course.

104. A further report from Dr Corry in 2007 was also tendered. He reported that there had been no change in the distribution or intensity of the pain Mr Young was experiencing. Mr Young reported persisting depression which increased in the latter part of 2006.

105. Dr Corry’s diagnosis was of “persisting and moderately disabling neck and shoulder pain consequent to a low velocity rear end motor vehicle collision on 11 December 2002.” He noted a diagnosis by Dr Gytis Danta (see below at [136]) of ulna neuritis from the elbow. He diagnosed also low grade persisting pain in the back left buttock and leg and a Generalised Anxiety and Major Depressive Disorder.

106. Dr Corry’s report of causation on this occasion was somewhat more cautious. He reported:

107. He referred to the earlier low back injury and noted that “[i]t has been demonstrated that the best predictor for the development of low back pain is a history of low back pain”. He also referred to the depression Mr Young experienced in 1995 and again in 1997, for which he received treatment from Mr Nomchong.

108. Nevertheless, Dr Corry confirmed in his diagnosis the symptoms of chronic neck and left arm pain and noted the slight but gradual improvement since 2005. His view was that low grade disability would persist indefinitely, “fluctuating in severity in association with activity levels and his general health and fitness”.

109. Mr Young, Dr Corry found, remains permanently unfit for his pre-accident electrical work and has been able to work in a light sedentary job for 20 to 25 hours per week but not more. He seemed to suggest, though he did not say so, that had the efforts to increase his work been supervised and graduated, they may have been more successful.

110. Dr Meyer is Mr Young’s general practitioner to whom he first reported his symptoms after the accident. Dr Meyer had taken over conduct of his care when his previous general practitioner, Dr Adam retired. Again, the history given was consistent with Mr Young’s evidence to the court. Perhaps significantly as the first medical person to whom Mr Young reported medical symptoms, Dr Meyer stated that he had been told Mr Young hit his head on the steering wheel and that there had been a brief loss of consciousness.

111. Dr Meyer recounted in his six reports the course of treatment. In 2005, he reported that Mr Young was prescribed Prothiaden for his pain, the dosage being increased “with good results”. He was also taking Neurontin “with good effect”. His prognosis then was for “a slow recovery with the likelihood of some persisting pain and disability in the long term”.

112. His latest report was in August 2007 and was a little less optimistic as to the future. It can helpfully be reproduced almost in full:

113. Dr Veness is a consultant psychiatrist. Mr Young was referred to him by his lawyers for a medical and psychiatric report in 2006.

114. The history given to Dr Veness was consistent with the evidence given before me.

115. Dr Veness diagnosed Chronic Neuropathic Pain Disorder, Chronic Generalised Anxiety State with post traumatic stress features and Chronic Depressive Disorder.

116. Dr Veness briefly explored Mr Young’s previous mental history, especially the treatment provided by Mr Nomchong, though he dated that to 1993.

117. Dr Veness also referred to the emotional and cognitive difficulties experienced by Mr Young. He referred to his anxiety and anger as well as the reduction in his concentration, attention span and memory. He recommended ongoing treatment by a clinical psychologist.

118. Dr Veness prepared an additional report in 2007. He diagnosed a Major Depressive Episode and Generalised Anxiety Disorder which, he stated, confirmed his previous diagnosis. He noted that a magnetic resonance imaging (MRI) conducted on 20 February 2007 showed an apparent small vessel ischaemia which, together with the other symptoms, confirmed in Mr Young’s case, Dr Veness’s view that Mr Young conformed exactly “with a group of patients who have a combination of emotional disturbance, chronic pain and organic brain damage”. Dr Veness recommended that such patients “do best” with a combination of psychotherapy, antidepressant drug therapy and good pain management.

119. Mr Sutton is a clinical psychologist who saw Mr Young for a psychological assessment in 2006. In a report dated 2 January 2007, Mr Sutton set out the various tests he undertook and concluded:

1. [v]alidity assessments of malingering, poor effort on memory tests and exaggeration of cognitive or emotional symptoms are intact, meaning he is neither malingering nor exaggerating on tests administered.

2. There is a significant (statistically and frequency) decline in intellectual functions.

3. Verbal memory is generally compromised, especially delayed recall of newly learned information. Encoding of the verbal material is unsatisfactory ...

4. Visual memory is generally better than verbal, and is functional for everyday usage, but still well below expectations.

5. Visuospatial organisation, visuospatial reasoning, pattern perception and spatial memory appear much poorer than expected.

6. Some of the above decline is due to slowed speed of processing information ... some to attentional fluctuations ... and some to an inability to perceive the nature of the problem’s solution. The latter is the most cause for concern as it may imply organic, as opposed to fluctuating causes ... In my view, the major cause is due to the just mentioned fluctuating variables, but I would suggest a precautionary scan of the brain be conducted ...

7. His level of pain management is not yet optimal. He will continue to need ongoing support from his Psychologist in ensuring he maintain activity levels, socially and physically ... Emotional issues ... need addressing first.

8. He has a severe Generalised Anxiety Disorder and Major Depressive Disorder: both these disorders are elevated above the pain sample against which he was compared. The former requires ongoing management with his Psychologist ... The latter ... requires anti-depressant medication ... His levels of aggression are unacceptably high ...

10. Functionally, regardless of causation, he is unable to efficiently undertake his previous level of consulting work. It is likely he currently operates off “old learning”. His present load of 20 hours is irrelevant as a guide: it is the nature and quality of his work which is compromised, whether it be 1, 20 or 40 hours.

11. He is unable to cognitively focus for any reasonable length of time. He becomes fatigued, adversely affected by increasing headache and other pains. Demanding cognitive focus cannot be efficiently sustained beyond about half an hour.

120. Mr Sutton also prepared a report in which he commented on the report of Dr F H Roldan (see below at [172]-[181]). I do not need to comment in detail on this, save to say that Mr Sutton suggested Dr Roldan “has not empirical evidence on which to base his judgement of Mr Young’s neuropsychological functioning” and that he was critical of the “malingering” scale used by Dr Roldan.

121. Mr Nomchong is a clinical psychologist who treated Mr Young in 1996 and earlier. He carried out stress management counselling and cognitive behavioural change therapy with him. As at 8 August 1997, Mr Young required further counselling but he was of the opinion that Mr Young would not suffer any permanent disability and that he would make a full recovery.

122. Mr Nomchong, in a second report in December 1997, reported that Mr Young was making ‘good progress’. It confirms the view I formed that Mr Young recovered from the earlier psychological problems he had encountered.

123. I received in the plaintiff’s tendered medical reports a letter from Moore Options, an occupational therapy organisation. It gave no information. I do not know why it was included. I read it with a sense of bewilderment.

124. Professor Hall is a consultant physician. He provided a report in 2004 to an insurance company and it was included with the reports tendered by both parties.

125. His report included a history which was consistent with the evidence given before me.

126. His conclusion was that Mr Young had suffered “a classical flexion/extension or ‘whiplash’ injury and musculo-ligamentous strain to the left side of the neck, the left forearm and, to a lesser degree, the right forearm”.

127. In his report, Professor Hall stated that Mr Young’s version of the accident was fully consistent with the information provided and that he sustained the injuries reported as a result of the motor vehicle accident.

128. He considered that the prognosis for Mr Young would be a gradual recovery, noting the current improvement.

129. His objective findings were consistent with Mr Young’s complaints. He described Mr Young as a straightforward witness. He opined that the motor vehicle accident was a substantial contributing factor to his condition and ongoing disabilities.

130. He recommended continuing hydrotherapy, physiotherapy and home exercises combined with Prothiaden and Panadeine Forte. He asserted that his assessments did not significantly differ from those of Dr Meyer, Dr Eaton and Ms Bond.

131. Dr Saboisky is a consultant psychiatrist to whom Mr Young was referred for an “extended” psychiatric medico-legal assessment in 2004.

132. Mr Young gave Dr Saboisky a history that was consistent with the evidence he gave before me. He also mentioned his prior treatment by Mr Nomchong.

133. Dr Saboisky found that Mr Young suffered from an Adjustment Disorder with mixed features of depression and anger as a result of his physical injury. He rejected the view that his depression was merely an aggravation of his previous experience of it. He found Mr Young fit for half-time work but this was dependent on the type of work.

134. A further report nearly ten months later was in similar terms. His view was then that his inability to work full-time had a physical cause and was not psychiatric. He was unable to assess permanent impairment.

135. Dr Stern was a consultant psychiatrist who assessed Mr Young in 1997. His report is marginally relevant to the case before me. His diagnosis was of moderate agitated depression in 1997. He recommended treatment for six months, his prognosis was for gradual improvement and that there would “probably be no permanent psychiatric condition”. This confirmed the view I had formed as I note (at [122]) above.

136. Dr Danta is a neurologist to whom Mr Young was referred in early 2007 by Dr Meyer because of the difficulty he was having with his memory and the neck, arm, chest, back and leg pain. It appeared that Dr Danta may have had a copy of Mr Sutton’s report.

137. After taking a history consistent with the evidence given to this court, Dr Danta diagnosed cerebral concussion, neck injury, back injury and ulna nerve lesion, findings that, he said, were quite consistent with the history of injury and Mr Young’s presentation.

139. Dr Barker is a clinical psychologist. She first treated Mr Young while employed as a clinical and health psychologist at the CIMC. Since then she had been awarded the degree of Doctor of Philosophy with a research thesis on the “[i]mpact of psychological trauma on adjustment to injury and management of chronic pain”. In 2001, while still working for the CIMC, she established Griffin Psychology with a colleague, where she later treated Mr Young.

140. After the period of work with Dr Barker at the CIMC, he presented at her private practice following the assessments by Dr Veness and Mr Sutton. In all, Mr Young attended 32 times at the CIMC and 19 times at her private practice to June 2007.

141. Dr Barker found Mr Young to be “a genuine informant, a man who values his personal integrity and honesty”. She found his presentation and self-report to be internally consistent and that it “matched observations described by other CIMC staff during team meetings and in their clinical notes and was congruent with other documentary evidence”. The history she reported was consistent with the evidence given before me.

142. She was fully aware of his prior mental health history. She also set out in detail his pain-related symptoms and impairment and his mood and anxiety-related symptoms and impairment. Again they were consistent with the evidence given before me.

143. She administered a number of tests, mostly at the CIMC. She found that “his history, course [sic] and current complaints are consistent with and clearly directly related to injury sustained in a motor vehicle accident on 11 December 2002 and its associated sequelae”. She identified a Chronic Pain Disorder which involved the contribution of both psychological and physical factors. Thus, elevation in reported pain was, in her opinion, likely to be “due to the psychological sequelae of the accident, rather than deliberate distortion.”

144. She differed with Mr Sutton in the clinical aspects of Mr Young’s presentation, preferring her earlier diagnosis of Post Traumatic Stress Disorder.

145. She noted the opinions of Dr Veness (Chronic Generalised Anxiety State with Post-Traumatic Stress Features), Mr Sutton (Generalised Anxiety Disorder), Dr Saboisky (Adjustment Disorder) and Dr Roldan (moderately severe Adjustment Disorder) and respectfully disagreed, maintaining her own diagnosis as more accurate. She felt that Mr Young’s tendency to minimise symptoms and appear strong and in control may have influenced his presentation to these persons and thus their diagnosis.

146. She felt that Mr Young’s prognosis was “reasonable with respect to managing his experience of psychological disorder, provided he is able to access ongoing psychological treatment over the short to mid-term.” The treatment time-frame was to taper consultations from fortnightly to monthly consultations over six months, then extend to three monthly reviews for at least twelve months. She felt that he may need to re-engage in the future.

147. She also felt that Mr Young might sporadically increase his working hours above the current level, but that this would not be sustainable for any significant period.

148. Dr Mastroianni is an occupational physician who prepared a medico-legal report relating to the 1995 injury sustained by Mr Young. His report was prepared in 1997.

149. He reported that Mr Young described a constant low back discomfort and leg pain which Dr Mastroianni considered indicated some degenerative disc pathology and/or facet joint dysfunction that pre-existed the injury. He found no abnormality and found Mr Young fit for work with no restriction. He did find Mr Young’s complaints were genuine. This confirms my view that prior injury was not significantly involved in his present disabilities. It was also helpful to assess Mr Young’s credit.

150. Dr Bodel is an orthopaedic surgeon who prepared a medico-legal report relating to the same incident. His report was also dated to 1997.

151. He diagnosed a musculo-ligamentous strain to the back and neck as a result of the incident in January 1995. He noted that Mr Young remained at work “with flare ups of pain from time to time”. He encouraged him to continue his gymnasium programme of regular exercise and passive stretching.

152. He estimated, in a later report, a 5% overall permanent loss of efficient use of his left leg at or above the knee, incorporating an assessment for permanent loss of efficient use of the left leg below the knee including the foot. He also suggested an 8% overall permanent impairment of function in Mr Young’s neck.

153. As noted above at [124], Professor Hall’s report appeared in both tenders. I need say no more about it here.

154. Mr Young was referred by the defendant’s insurer to Dr Burke, a consultant occupational physician, for a medico-legal assessment.

155. Dr Burke reported a history that was consistent with the evidence given by Mr Young to the court. He was told by Mr Young of his head hitting the steering wheel and, apparently, of the loss of consciousness; Dr Burke stated that “[h]e remembered waking up with his eyes rolling in his head”.

156. He reported that Mr Young told him that “[t]here is nothing he finds difficult around the house. Any activities that can be problematic include vacuuming and anything involving stretching to heights. He attempted lawn mowing once and this caused significant pain”.

157. On examination, Dr Burke found slightly reduced range of movement in Mr Young’s head and neck. He also found a somewhat reduced range of movement in his upper limbs.

158. He felt that Mr Young’s level of symptoms and disability as described were “somewhat extreme”. He thought there were other causative factors “probably psychosocial”.

159. His diagnosis was of a “probable soft tissue injury of the thoracic and cervical spine, mild closed head injury, cervicogenic headache, and probably adjustment disorder”.

160. He considered that Mr Young “retains a significant work capacity” though he would “experience difficulty” if he were to return to work involving heavy lifting, repetitive lifting or prolonged use of his arms and hands above shoulder height. He could not return to his electrical/cabling work. He felt he had the capacity to return to his duties as a consultant on a full-time basis.

161. Dr Burke opined that the injuries reported by Mr Young were “solely attributable to the motor vehicle accident”. It was a little unclear precisely to what Dr Burke was referring since he referred to “the injuries listed on page 1”. There were no injuries listed on page one of his letter; indeed he did not really list any injuries in his report in that sense. If it referred to the instructing letter, I was not favoured with a copy of it. Dr Burke was clearly aware, however, of the symptoms about which Mr Young complained. He added his opinion that “reported injuries and disabilities are a direct result of the motor vehicle accident on 11 December 2002”.

162. Dr Burke considered that the treatment Mr Young had received was “reasonably effective” and that continuing treatment of medication, psychological counselling on a regular basis and an active exercise programme was reasonable. No surgical intervention was considered to be required.

163. Dr Burke’s prognosis was that Mr Young could perform the duties “as a company director”, but not “hands on” electrical duties such as he had performed prior to the accident. He felt it should be “possible to gradually increase his hours to full-time.”

164. Dr Burke overall agreed with the reports of Professor Hall, Dr Eaton, Ms Bond, Dr Meyer and Dr Billett (whose report I do not have). He did consider, however, that there was some impact of the pre-existing degenerative changes in Mr Young’s thoracic spine.

165. Dr Smith is an orthopaedic surgeon to whom Mr Young was referred by the defendant’s insurer for a medico-legal assessment.

167. Dr Smith found on clinical examination that Mr Young was “in no distress”. He reported pain complained of by Mr Young during the examination and a moderate loss of power in all movements of the left upper limb.

168. Dr Smith described Mr Young as having “a remarkably normal neck ... a better neck than the average man of his age”. His physical examination demonstrated to Dr Smith “nothing objectively wrong with him”. He described his restriction in neck movement as “voluntary” as he did the restriction bilateral abduction.

169. His conclusion was that “[f]rom an orthopaedic point of view I cannot find anything much wrong with him” and that “I think he is prepared to manufacture symptoms as well”. He thought he was fit for his previous occupation. He repeated that “[h]e is in my opinion manufacturing many of his symptoms” and does not require any treatment “from an orthopaedic point of view”.

170. He considered that Mr Young did not require any domestic assistance “for there is no real evidence of any significant injury being sustained in the motor vehicle accident”.

171. A later report was equally dismissive and he repeated his opinion that Mr Young was “manufacturing physical signs”.

172. Dr Roldan was a clinical psychologist and neuropsychologist who was asked to provide a medico-legal report on Mr Young’s condition for the defendant’s insurer.

173. The detailed report set out a history consistent with the evidence before me.

174. Dr Roldan made a functional assessment and reviewed reports of Dr Eaton, Dr Barker, Mr Cousin, Dr Price (report of MRI scan that was part of the material tendered by not otherwise noted in this judgment), Dr Billett (which, as I noted above at [164], I have not seen), the CIMC, Dr Saboisky, Dr Corry, Dr Burke, Dr Smith and Dr Veness.

175. Dr Roldan conducted psychometric testing. Mr Young scored within the severe range for depression and moderate to severe for anxiety. He was interviewed for three hours and “exhibited significant overt pain behaviour”. He described a number of pain sites which Dr Roldan described as “three and a half standard deviations above the mean number ... utilised by the average back pain patient”. His overall score on the Pain Disability Index compared “rather poorly with [the] mean score ... for pain in-patients and ... for pain outpatients.”

176. Mr Young also completed the Lees-Haley Somatic Malingering Scale of the Minnesota Multiphase Personality Inventory. His score was one found to be associated with “over-report of physical symptoms and physical disability”.

177. Dr Roldan considered there was “no convincing evidence that Mr Young sustained a significant head injury as a consequence of the accident ... let alone ... brain trauma capable of leading to cognitive and/or personality impairment.” As a result, he did not proceed to a neuropsychological assessment. He was also not satisfied that the symptoms were sufficient to diagnose a Post Traumatic Stress Disorder, nor that his post traumatic stress symptoms were significantly disabling.

178. He found no evidence of accident-related brain trauma mediated cognitive difficulties. He considered that “there appear to be some grounds for questioning the validity of Mr Young’s report of physical symptoms.”

179. His conclusions included that “[f]rom a strictly psychological perspective, there is no indication that Mr Young should be restricted from undertaking normal occupational activities” and:

180. The reference to “some medical commentators” seems to refer to Dr Smith as no other reports to which I have had access made the point on which Dr Roldan relies.

181. Subsequently, Dr Roldan was provided with a copy of Mr Sutton’s report and he took issue with a number of comments in it.

182. It is not easy, without either guidance from cross-examination or more detailed submissions on these reports than I had, to come to firm conclusions about the issues on which the various medical commentators differ. There are, however, some conclusions that I can draw and which are important for this case.

183. In the first place, I discount Dr Smith’s view that Mr Young has manufactured his symptoms. I do this for three reasons. In the first place, it is out of line with every other medical practitioner whose relevant report I have read, including two whose reports were sought by the defendant’s insurer.

184. Secondly, Mr Young was not cross-examined on that view. It was not suggested to him that he was malingering or manufacturing symptoms. It was, of course, suggested that he was making improvements in his condition but that was not anything like the opinions of Dr Smith. Certainly, Dr Smith’s report or opinions were not expressly put to Mr Young in cross-examination.

185. Thirdly, they did not accord with the view I formed of Mr Young from observing him in the witness box. I found, similarly to many of those whose reports I had, including some who had a long association with him, that he was an honest reporter, trying hard to be fair and accurate.

186. Nextly, I am not prepared to find, as suggested by Dr Roldan, that Mr Young over-reported his pain behaviour or was malingering. I had regard to Mr Sutton’s criticisms of Dr Roldan’s approach and scoring on the malingering test. I am not able to find definitively on that issue in the absence of more detailed evidence, but I found Mr Sutton’s criticisms plausible and would not, without more, rely on Dr Roldan’s assessment on this issue.

187. Further, Dr Roldan deferred to medical evidence and then seemed to rely heavily, though not expressly, on Dr Smith’s opinion and I have discounted that view and do not accept it. Dr Roldan’s deferral to medical opinion means, too, that by me accepting the other medical advisors, I do not accept his scepticism.

188. Again, Dr Roldan’s view was not put to Mr Young in cross-examination, certainly not in terms.

189. Finally, it did not appear to me that his opinion was consistent with the view I formed of Mr Young in hearing and seeing him give evidence, supported by other views.

190. Having regard to the medical evidence, I find that Mr Young sustained a whiplash injury in the accident on 11 December 2002. That injury gave him pain in his neck, shoulders, back, arms and hands. It led to headaches. It disabled him from working for some months. It has continued to be disabling and reduced his work capacity to no more than 20 to 25 hours per week.

191. I further accept that Mr Young continues to have significant pain in his neck and left shoulder and forearm which continues to disable him from work.

192. I am not able to discount that the earlier back injury and degeneration changes may have contributed to his present condition, but I consider that the injuries suffered in the 2002 accident were sufficient to cause the interference with his work in themselves and would have been so disabling even without such other contributions.

193. I am satisfied also that the accident caused his present psychological disabilities. I am not able to be satisfied of a precise diagnosis, whether of Post Traumatic Stress Disorder, Anxiety Disorder or Adjustment Disorder or, indeed, another. I am, however, satisfied that Mr Young suffers from pain with both physical (probably neurogenic) and psychological roles in it, depression, some cognitive difficulties including lack of ability to concentrate, especially for extended periods, shortened attention span and memory limitations. I am also satisfied that this has reduced his mental capacity to develop his business and has reduced his ability to follow his academic interests. I also find that it caused him irritability and increased anger, though this seems to be much more under control.

194. I am also satisfied that he has a reduced capacity for engaging in domestic duties, though I am not satisfied that this is as extensive as was particularised.

195. The question of Mr Young’s prognosis is the most problematic of the medical issues. I am satisfied, as noted above (at [190]-[192]), that Mr Young is presently significantly incapacitated for work. He certainly cannot return to the “hands-on” work of an electrician involved in cabling work that he formerly performed. He can undertake sedentary duties. At present, I am satisfied that he has a limit of about 20 to 25 hours per week and that this has reached a plateau.

196. There is clear disagreement about his future, with opinions ranging from that of Dr Danta, who says that as he has not improved after five years, he will not improve further, to that of Dr Burke, who says he will make a full recovery, at least so as to be able to work full-time in sedentary duties.

197. It was remarkable that the medical practitioners and other health professionals who provided the reports I have read, especially his treating doctors and psychologists, were clear on the whole that he enthusiastically and willingly participated in programmes and other treatment. I am satisfied that he will continue to do so, especially when these proceedings are completed.

198. It seems to me, doing the best I can, that Mr Young is likely to make some, though perhaps slow, improvement, but that there is every likelihood that he will not recover to the extent where he can work full-time again. I certainly hope I am being too pessimistic, but on the material before me, I could not be certain of his future complete success. This means, of course, that he can be expected to experience pain and suffering for some time to come.

199. On this basis, then, I turn to consider the compensation to which Mr Young is entitled. In this, I am conscious of what fell from Lord Blackburn in Livingston v Rawyards Coal Co (1880) 5 App Cas 25 where his Lordship said (at 39):

200. In Australia, an award of monetary compensation is intended, so far as it can, to compensate for non-pecuniary loss, such as pain and suffering: Teubner v Humble [1963] HCA 11; (1963) 108 CLR 491 (at 507). Arguably, in negligence cases there is no distinction between special and general damages (see per Deane and Dawson JJ in Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327 (at 342) and per McHugh J in CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1 (at 38)). The conventional approach, which I propose to follow, is to refer to non-pecuniary loss as “general damages” (see Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 (at 60). Under this head of damages compensation is payable in this case for pain and suffering and loss of amenities or enjoyment of life. There was no medical evidence to suggest any particular likely curtailment of Mr Young’s expectation of life, though some was faintly particularised.

201. I propose to award, as is customary, a lump sum undifferentiated as to components. Having regard to the facts and circumstances of this case and of Mr Young and to Mr Young’s past, present and likely future conditions, I consider that general damages should be awarded in the sum of $90,000.00.

202. I consider that two-thirds of the factors under this head of damage refers to the past and one-third to the future.

203. Interest on past general damages on the rate approved in MBD(SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657 amounts to $7,800 which I round to $8,000.

204. The parties have agreed on the out-of-pocket expenses in the sum $30,259.46 and I award that sum. No evidence before me suggested Mr Young had paid them, so I do not include any interest.

205. Mr Torrington, who ably represented the defendant in this case, submitted that for future treatment an allowance of $10,000 should be made. This was, he submitted, for counselling, “which would cover an enormous amount of counselling”. He pointed out that Mr Young did not seem to be undertaking any hydrotherapy or physiotherapy, or at least only very irregularly at the moment.

Item	Number of extra visits per annum	Unit cost	Total cost per annum
Psychologist	12	$172.00	$2,064.00
GP	12	$ 65.00	$ 780.00
Specialist	6	$175.00	$1,050.00
Physiotherapist	12	$ 45.00	$ 540.00
X-rays and scans	2	$750.00	$1,500.00
Gymnasium Membership	1	$875.00	$ 875.00
Medication	@ $135.00 per month		$1,620.00
Total			$8,429.00

207. Although it is not crystal clear, I am prepared to accept that this is the schedule which was referred to in Dr Eaton’s report of 28 July 2007 which he described as “reasonable annual costs for Mr Young’s treatment” and which Mr Parker submitted was one and the same.

208. It seems to me that Mr Torrington’s approach was too restrictive. There is no reason to believe that Mr Young does not need currently the medication presently prescribed for him, for example, and that his current medication will continue to be required for at least some time into the future.

209. The evidence given by Mr Young was somewhat less than the particulars in relation to the treatment he is presently accessing.

210. Mr Young reported that his treatment has basically been managed by Dr Eaton and Dr Meyer and that this is the present situation. He continues with his medication. He tried to stop taking it, but ceasing the Neurontin kept him nervous, anxious and gave him “the shakes” and constant headaches.

211. Mr Young gave no direct evidence of the frequency with which he was consulting Dr Eaton and Dr Meyer. He did apparently tell Dr Corry in 2007 that he was seeing Dr Eaton every six months and Dr Meyer every three months.

212. He has not attended the gym for a year because people were bothering him but he has a home gym which he uses regularly. He visits a specialist trainer, Mr Robb, at the CIMC about twice a year.

213. He has ceased hydrotherapy and physiotherapy because he felt that he could do the exercises by himself. He also felt that the exercises recommended by the physiotherapist were within the same scope as those recommended by Mr Robb.

214. It seems to me, however, that there may be some limited need for further physiotherapy assistance.

215. He has continued his counselling with Dr Barker. For a time, it was weekly but at the time of the trial it was monthly. It seems to me that there is a reasonable case to suggest it may from time to time need to be a little more frequent than that.

216. Except for Dr Eaton’s global acceptance of the treatment expenses, no-one has suggested that it is necessary for Mr Young to have x-rays taken twice a year.

217. It seems to me that monthly visits to a psychologist are reasonable and that this will be likely to be required for about five years. I would, however, accept that a further two years after that is reasonable to allow for future contingencies.

218. I would also be prepared to allow for three monthly visits to his general practitioner, as is apparently happening now, for the next ten years and six monthly visits to Dr Eaton for the same period.

219. I am also prepared to allow twelve visits to a physiotherapist as a protection from any future regression and any need for additional assistance to “kick-start” the next phase of improvement.

220. I had no specific details of the cost of attending sessions with Mr Robb. It seems to me that this and any ongoing costs of the home gym would be reasonably covered if I were to allow for an annual gym membership for fifteen years.

221. Applying this approach, I calculate the cost of future treatment expenses in the sum of $34,213, which I round to $35,000.00.

222. The substantial dispute between the parties revolved around the economic loss claimed to have been suffered by Mr Young and to be suffered in the future.

223. In many cases, this can be a relatively easy calculation because the injured person is a wage earner. Past economic loss is then simply calculated by deducting from the wage rate for the period since the accident the amount actually earned. See GMH Ltd v Whetstone (1988) 50 SASR 199 (at 200). This simple approach, however, must be treated with caution, for the compensation to which a person injured by a tortfeasor is entitled is not loss of wages but loss of earning capacity: Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 (at 143).

224. In addition to Mr Young’s oral evidence, I was provided with a report by Ms A McIntyre for Mr Young and a report and supplementary report by Mr D Watt of Deloitte Touche Tohmatsu for the defendant. The reports were widely divergent. Neither author was called to give evidence and, therefore, neither was cross-examined. This made it somewhat difficult to assess and reconcile the stark differences between the two reports.

225. There was some agreement. It was agreed that the Fox v Wood component of the damages (Fox v Wood [1981] HCA 41; (1981) 148 CLR 438) was in the sum of $14,000.

227. As there was no oral evidence or cross-examination, it was left to me to read the reports, which I have done, and identify the relevant differences and see which seemed best to accord with the other evidence that I had including the oral evidence of Mr Young.

228. Ms McIntyre analysed the financial information provided. She found that it supported the claim that Mr Young worked an average of 50 hours a week before the accident. After the accident, he did not work between December 2002 and March 2003 but thereafter at between 3 and 32 hours a week. Mr Young’s evidence was that most recently, he was working an average of 20 hours a week.

229. In order to calculate the earnings that Mr Young would have made, had it not been for the accident, (the “but for” earnings as Ms McIntyre called them), Ms McIntyre performed the following adjustments:

230. She then deducted the tax payable to allow for the fact that tax would be payable on the earnings but is not payable on a lump sum compensation.

231. She also included the value of the proposed Macquarie Bank Geared Equity Portfolio (the Macquarie Investment) which, she assumed, Mr Young would have entered into “but for” the accident. I shall deal with that separately below.

232. Her calculation for the total earnings lost was the result of deducting the actual earnings as shown in the financial statements from the “but for” earnings, a total she stated of $525,505.69.

233. Apart from the Macquarie Investment, which I will deal with separately, I have some difficulty with this calculation. For example, in only one year prior to 2003 did Mr Young work the 2547 hours she suggested he would have been working but for the accident; in the other two, the more recent ones, he worked significantly fewer hours. Then the fees payable to Ms Sargeant differed from Mr Young’s oral evidence. In addition, the allocation of materials in the calculation was not explained in Ms McIntyre’s “but for” calculation of the operating profit after tax.

234. Mr Watt took a different approach. I have had principal regard to his supplementary report as this seemed to be the one relied on by Mr Torrington for the defendant. It was a comprehensive and detailed report.

235. Mr Watt considered each entity (Face Value, Face Value Solutions ACT Pty Ltd and Celtic Connections). He noted the earnings of each and then calculated the total adjusted income from Mr Young’s involvement in them, as a shareholder, director and employee. This was done by representing the total income of Mr Young by the adjusted results of the three entities, calculated as:

237. The calculations showed that the gross income and adjusted business income decreased in the year of and the years subsequent to the accident before increasing to a profit. His view was that this “improvement ... suggests to me [i.e. Mr Watt] that the Business may be recovering from any adverse affects [sic] suffered as a result of the impact of the Accident on the Plaintiff’s earning capacity”.

238. Mr Watt suggested that Mr Young’s earning capacity “should be measured by reference to the market value (being arms’ length remuneration value) of the services he provides to the Group”. This was to be calculated by reference to the market remuneration of an employee in the same position as Mr Young. Any additional return from the Group then represented “a return on capital invested... other intangible factors and the personal exertion of the other employees of the Group”. This approach was based on some comments made in Professor H Luntz’s book Assessment of Damages for Personal Injury and Death (4th ed, LexisNexis Butterworths: 2002), where it was said (at p 337):

240. While the latter is not entirely an accurate description of the post-accident position, it is a corrective to the earlier approach. That earlier comment, the Professor points out, is particularly appropriate for “merchants, manufacturers, members of partnerships and industrial executives”, none of which are apposite descriptions of Mr Young or the position he occupied.

241. It is true that from about 2005 he employed contractors for significant work and apparently charged their labour out at a rate in excess of what he paid them. He made it clear, however, that there was an important level of supervision which he had to exercise and for which he was entitled to some remuneration which would, of course, have had to come from that difference. Mr Watt gave the impression also that the earnings of the companies were independent of Mr Young; that is not the impression I formed nor does it accord with the evidence.

242. Mr Watt then calculated the average earning capacity of Mr Young for the pre-accident period by averaging those three years earning as $114,766 and deducted average work expenses of $6,340, leaving the “but for” earning capacity as $108,426 per annum.

243. He then extrapolated that over the post-accident period by applying the Consumer Price Index movements to both the earnings and work expenses. He then compared the actual income of Mr Young post accident and found small amounts in the years 2003 and 2005, a large amount in 2004 and no excess in each of the succeeding years. In this way, he arrived at the amount of $125,209.

244. I had some difficulty with these calculations also. For example, while Mr Young’s earnings for 2000 ($152,652) and 2002 ($125,301) were similar, the earnings for 2001 ($64,528) were much lower. Had that middle year been excluded (as an unusual year or for any other special reason), the average would have been $138,977. Had this amount been used as the base line, then the past economic loss would have been, on the same basis, somewhere in the region of $172,000, a significantly higher amount.

245. Further, the unchallenged evidence was that Mr Young worked about 50 hours per week before the accident and was only able to work up to 20 hours (on average) after the accident.

246. Because of this reduction in hours, Mr Young had to employ contractors. It appears that he made a premium on their employment by paying them less than he charged them out on the contract. There is nothing unusual in this. It was clear on his evidence, however, that there was a level of supervision required, including training of staff and “up-skilling” them. This was, Mr Young said, not presently possible for him. He put it in his evidence as follows:

248. In essence, the report of Mr Watt approached the question of past economic loss by using the earnings before the accident as the level of his earning capacity, adjusted for growth in line with the Consumer Price Index. It seems to me that this gives too much weight to the past. As Gleeson CJ, Gummow, Kirby and Hayne JJ said in Husher v Husher (at 143):

249. While Mr Young’s position is quite different from that of a student, the fact is that he has been impaired in his working hours and that must have reduced his potential income. Any additional capacity to earn through employment would be available to Mr Young even were he not injured. There was nothing to suggest that the additional hours he could, but for the accident, have worked would not have been remunerative. It is not enough to say that the post-accident earnings have reached the pre-accident earnings and, therefore, there is no loss of earning capacity: Russell v J Hargreaves & Sons Pty Ltd (1957) 30 ALJ 533.

250. It is important, for instance, to note that prior to the accident, Mr Young’s evidence was that he was still expanding the business and improving his prospects by developing his educational qualifications. He was seeking out work and, as the extract from his evidence above (at [247]) shows, his assessment was that there was plenty of work to be had.

251. Accordingly, I generally prefer the approach of Ms McIntyre, though I am not entirely satisfied with her calculations. As noted above, at a time when Mr Young was building up the business, his hours were less than the flat maximum she posited for the post-accident years. Her calculations also assumed that his work would all be uniformly remunerative, notwithstanding the clear evidence that he would, as he expanded his business, have to spend time leading, skilling and supervising the staff. This would be directed to producing income through the employment of staff but not necessarily at the same rate as if he were to work directly himself.

252. Thus, I am prepared to base my assessment broadly on the report of Ms McIntyre, but deducting the Macquarie Investment, which is dealt with below, and moderating the hours by reducing them by approximately four hours per week to account for unremunerative work and to reflect the likely hours work based on the pre-accident work pattern. This allows for more hours spent in the earlier years building up the business and for some supervision in the latter years.

253. Doing the best I can, I find, based on Ms McIntyre’s calculations but adjusted as above that, the past economic loss up to the date of the trial would be fairly compensated by a payment of $410,000.00.

254. Mr Young is entitled to interest of the past economic loss which is at the prescribed rate of 9% per annum over a period of 6.5 years. I round this amount and allow $120,000.00.

255. Unsurprisingly, the general approach to future economic loss is closely allied to that of past economic loss in this case. There are a number of issues to be decided, however, before embarking on an analysis of the payable compensation.

256. In the first place, it is very regrettable, and for which I express my regret to the parties, that this judgment has been long delayed. In my view, rather than trying to estimate the additional economic loss from the date of trial to the date of judgment and adding that to the sum for past economic loss, I will include that period in the calculations for future economic loss.

257. Secondly, I have to determine the period for which Mr Young would have, but for the accident, worked. In evidence, he said that he might retire at “65, maybe 70, depending on how I was at the time of life, but at least 65 years old. I am not retiring till 65, and if I could do more after that, then fine.”

258. In the light of this evidence, I am satisfied that Mr Young would have worked at what might be called full capacity until 65 and may have worked beyond that time, but likely, at least, at a reduced capacity.

259. Thirdly, there is a real question about whether Mr Young will now improve physically or mentally. His evidence was that he had reached a plateau. It was not entirely clear, however, whether that was a “permanent plateau” or whether it would be likely to be merely a stage of stability at his present level of disability before he made further improvement.

260. I have reviewed the medical evidence above and (at [198]) concluded that he would make some improvement but that it is unlikely that he will return to full-time work before the date when I expect him to retire, namely at 65, though with a possibility of some continuing work thereafter.

261. Mr Torrington for the defendant submitted that there was no or very little future economic loss. As I have indicated above, it seems to me that this is based on an approach akin to that of loss of earnings rather than loss of earning capacity. As a result, I do not find Mr Watt’s report particularly helpful in this regard.

262. On the other hand, while I prefer the approach taken by Ms McIntyre, there are some areas of disagreement there, too.

263. In the absence of oral evidence, including cross-examination, I find it difficult to make clear findings on the issues involved.

264. Mr Parker submitted that I could proceed by way of using the notion of a buffer to award compensation under this head. For the reasons set out below, I do not consider this to be an appropriate approach. It seems to me, following the injunction of the High Court in Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, I should do my best to assess the probability of the relevant contingencies.

265. In approaching this task, I consider that the fairest way to proceed is as follows:

1. I accept that there is a loss of earning capacity suffered by Mr Young and that this will be likely to persist into the future.

2. I accept that the present level of disability is likely to continue for some time but that there is a real prospect of it diminishing in a real degree.

3. I have accepted that Mr Young was likely to have retired at 65 but may have worked a little longer. I consider that this is best dealt with by assuming that he would have worked until 67.

4. I consider that the likelihood of an improvement in Mr Young’s earning capacity is best dealt with by increasing the discount for vicissitudes of life from the conventional 15% (see Lipovac and Anor v Hamilton Holdings Pty Ltd and Ors (1997) 136 FLR 400 (at 402)) to 25%. As Miles CJ pointed out in Koeck v Persic (unreported, SCACT, Miles CJ, 26 March 1996) the vicissitudes of life include the possibility of increases in earning capacity.

5. I note, also, that Ms McIntyre used as the discount rate for her calculations 5% rather than the mandated 3% (see Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402). I have used latter that discount rate.

6. I consider that the 2007 economic loss as identified by Ms McIntyre is an appropriate basis from which this is to be calculated, but have removed from it the effect of the Macquarie Investment.

266. In undertaking this calculation, and rounding the result, I find that $585,000 is a reasonable amount to provide for future economic loss in Mr Young’s earning capacity.

267. As noted above (at [264]), I rejected the suggestion that I should approach the assessment of Mr Young’s future economic loss by way of a buffer. These are my reasons.

268. A buffer is used “when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine”: Penrith City Council v Parks [2004] NSWCA 201 (at [5]) per Giles JA. It has been described by the ACT Court of Appeal as “an award for contingent loss in the future which may or may not occur”: Barton v Samarkos Earthmoving Pty Ltd [2004] ACTCA 6 (at [20]).

269. Of course, it is often the case that there are difficulties in assessing the impact of an injury upon the economic benefits available to the injured person in the future and, as in this case, there will be imponderables that need to be considered and which, like the possibility of Mr Young improving his condition and being able to work more, may or may not occur.

270. In Ecob v Wentworth-Shields [2001] ACTSC 2, Miles CJ (though in dissent) said (at 2):

[a]s I understand it, the term “buffer” has been used sometimes in recent years to describe a component in the injured plaintiff's damages which is awarded in order to compensate the plaintiff for economic loss which has not yet occurred and is not likely to occur, but which emerges as a real possibility in foreseeable circumstances established by the evidence. For instance, a person in steady employment who sustains a permanent physical disability, which in no way affects his or her capacity to continue in that employment, may not be able to show, on the probabilities, any past or present loss of earnings, nor any future loss of earnings except in the event of possible but unlikely circumstances which themselves have essentially nothing to do with the physical disability. In that event, the award may contain a component to compensate the person against the unlikely eventuality. The quantum of the component will depend, inter alia, upon the incidence of possibility.

271. His Honour went on (at [12]) to distinguish a buffer from an intuitive approach to the award of damages. He said:

272. As the High Court made clear in Malec v J C Hutton Pty Ltd, a court is not relieved of the duty of assessing the likelihood of a future event simply because it is a difficult exercise. If the law is to take account of such events, it must assess the degree of probability of it.

273. As Crispin P and Gray J, in the majority, said in Ecob v Wentworth-Shields (at [31]):

274. Thus, in CSR Readymix (Australia) Pty ltd v Payne [1998] 2 VR 505, the Victorian Court of Appeal set aside an award of damages which was made by what was described as an “intuitive approach”. Principally, the Court did so because the trial judge failed to articulate the findings on which he based his approach.

275. Thus, the identification of an actual amount for damages may be able to be reached by a mathematical formulation, such as by identifying the loss per week and then using the tables conveniently included as appendices in Professor Luntz’s Assessment of Damages for Personal Injury and Death or similar. It may be less certain but also clearly exposed as reasoning when a probability is assessed, as required by Malec v J C Hutton Pty Ltd, which is then applied to the findings about loss.

276. One has, of course, to bear in mind as the difficulties of assessment become greater that a mathematical or quasi-mathematical approach can give an air of certainty to what is quite uncertain, although, as Stephen J cautioned in Todorovic v Waller (at 431):

277. His Honour then stressed the importance of evidence for the assessment of damages.

278. I also note that in Leichhardt Municipal Council v Montgomery [2005] NSWCA 432, the trial judge awarded a buffer for future economic loss in the sum of $160,000 which prompted the following comment from Mason P (at [2]):

279. Hodgson JA, who wrote the principal judgment simply commented (at [33]) that “it is open to assess future economic loss by way of a buffer”. McColl JA agreed with Hodgson JA. That decision was reversed by the High Court in Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22 but not on the issue of damages.

280. Subsequently, in Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99, McColl JA, in a judgment with which Mason P and Beazley JA agreed, held (at [84]) that “[a]s to future economic loss, it is appropriate to award damages by way of a buffer ... when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine.” Her Honour then quoted the passage I have cited from Mason P above (at [278]) and commented “but, with respect, the accepted wisdom appears to be that a buffer can be deployed in circumstances such as the present.” The buffer awarded was $120,000.

281. In that case, the plaintiff was able to return completely to his pre-accident employment but, even uninjured, continued employment in that position was uncertain. He was also able to do other similar jobs which would lead to no loss of income, but he had been out of the workforce for some time which might have caused difficulty in securing further employment. The situation was further complicated by the possibility that the plaintiff’s pre-existing back condition may have resulted in incapacity in the future. The trial judge concluded “[i]t is impossible to confidently predict what the plaintiff’s future may hold”. This was reminiscent of the “crystal ball” of Crispin J in Causoski v Commonwealth of Australia [2004] ACTSC 103 (at [59]). The imponderables there made an estimate very difficult and probabilities quite meaningless, even were they able to be guessed. Nevertheless, it does seem to me that the larger the amount of a buffer the greater the likelihood that an unjust result may follow were the event, the probability of which occurring is not able to be assessed, not to occur.

282. It seems to me that while there is difficulty in confidently predicting the future, I was able to make sufficient findings that led me to reject the buffer approach. I found:

(a) that Mr Young was almost certain to remain with some residual loss of earning capacity, but

(b) that there was a realistic prospect of further improvement, though not a return to full recovery; and

(c) thus I could estimate that the probability of increased earning capacity would properly be represented by an additional reduction in the lump sum awarded of 10% over the conventional discount for the vicissitudes of life.

283. This was, it seems to me, sufficient to require me to strain, as I did, to find a clearer and more reasoned approach to the calculation of future economic loss than to award a buffer.

284. Prior to the accident, Mr Young made arrangements to borrow $100,000 from Macquarie Bank for investment in what was described as a Macquarie Bank Geared Equity Portfolio. He had not drawn down on the loan by the time the accident occurred.

285. The arrangement was that he would pay 14.75% interest on the borrowed money which would be used to buy shares. The loan would be for a period of three years. He had consulted a financial planner about the shares he proposed to purchase in a number of large Australian corporations, QBE Insurance, Telstra Corporation, St George Bank and the ANZ Banking Group.

286. As a result of the accident, Mr Young did not pursue the matter and did not draw down on the loan. No evidence was given about the length of time during which the loan would have been available to Mr Young.

287. While the interest payments on the loan would have been deductible from Mr Young’s taxable income, the dividends and capital gains from the share investments would have been taxable.

288. Mr Young asserted, by way of express adoption of the particulars his lawyers had filed, that he would have rolled over the investment at the end of the three year term.

289. Mr Torrington submitted that there was no reason why the investment should not have been undertaken at a later time, that is delayed it rather than not entered into it at all. That was certainly a question I raised. As Mr Torrington pointed out, with Mr Young’s accountant and his own abilities, the capacity to manage the fund was available. It does not appear, however, that this was directly raised with Mr Young in cross-examination.

290. Mr Parker, in submissions, pointed out that the loan would have resulted in a net benefit of about $6,000 per annum to Mr Young. This, as I understand it, was intended to encapsulate the benefits after the costs, which would include the need for the payment of the $14,750 together with capital gains tax. Ms McIntyre, however, estimated the loss of the investment over five years to be $57,695, but I am not sure that I followed her calculations clearly and in the absence of additional evidence, accept Mr Parker’s submissions which cannot be too high.

291. I can accept that immediately after his accident, Mr Young was uncertain about his future. By 2004, however, he had workers compensation payments regularly being made. In my view, it is reasonable to allow a loss for a two year period because of the accident. After that, Mr Young could well have revived and entered into the investment and I see no basis for concluding that it was thereafter unavailable to him because of the accident.

292. This results in a compensation payment on Mr Parker’s submission of $12,000, which I accept. Interest on this sum amounts, when rounded, to $6,500.00.

293. Mr Young has been receiving workers compensation payments. These are regarded in tax law as ordinary income and, unlike lump sum awards of damages, are taxed. Section 184 of the Workers Compensation Act 1951 (ACT) requires a person who secures such compensation and who is awarded common law damages to repay the whole of the workers compensation payments.

294. That repayment would, of course, leave a gap of the tax paid to the government on the compensation payments received. In the High Court, it was held in Fox v Wood that the payment of tax on workers’ compensation benefits is such a natural and foreseeable consequence of the result of the defendant’s negligence that this amount, being the tax paid, must be added to the damages which compensate the plaintiff for the injury caused by the negligence.

296. In Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161, the High Court held that a plaintiff was entitled to recover the cost of domestic assistance required as a result of disability caused by the negligence of the defendant, even when provided at no cost to the plaintiff. As was held in Van Gervan v Fenton, the basis for the claim was the need of the plaintiff for that assistance and that the plaintiff was not required to show that the need was or may be productive of financial loss.

297. Mr Young in the Further Amended Statement of Particulars asserted that, prior to the accident, he undertook washing once per fortnight, daily cleaning, washing of the dishes daily, ironing weekly, cooking daily, baking weekly, making of the beds weekly, taking out the rubbish bins weekly, vacuuming weekly sometimes daily as required, cleaning two bathrooms fortnightly, cleaning of the showers every third day, painting once very nine months, undertaking ongoing repairs once per week, cleaning of 46 windows every two months, undertaking electrical work as required, undertaking carpentry work as required, undertaking maintenance work including painting, general building words and landscaping and most facets of gardening as required and cleaning of the fireplaces daily in the winter as well as moving and collecting of firewood.

298. Since the accident, it was asserted that Mr Young has been capable of performing these tasks but on “a substantially reduced basis” and that he could not sustain them in the “long term”. Instead, he has been given assistance by his wife and son, aged 13 and daughter, aged 9.

299. The estimate in the particulars was of eleven hours per week at $17 per hour.

300. In addition, from the accident, until 11 February 2006, Mr Young was generally assisted by Mr Edward Davidson Senior who helped him with those activities, mainly of a maintenance kind, which were not able to be undertaken by the plaintiff nor his family. Mr Senior was claimed to have assisted the plaintiff from two to three days per week, on average eight to ten hours per day.

301. The evidence Mr Young gave, however, had some differences. Some of those were exposed in vigorous cross-examination of him. For example, while it caused him pain, he did say that he did cut the firewood, though he needed to take some painkillers and rest substantially afterwards. This does not disclose gratuitous services provided.

302. He has ceased mowing the lawn, though in cross-examination he accepted that the lawn was a relatively small one, in two areas, each of about six metres by four metres.

303. He did indicate that prior to the accident, some tasks, such as washing up, would be shared. He would, for example, sometimes do the vacuuming or sometimes it would be shared.

304. The garden required watering and weeding. Mr Young stated that he was unable to do the weeding at least any more in any sustained way any more because of the pain when bending down and pulling up the weeds. He now has a gardener, who also mows the lawns. No accounts were produced from the gardener.

305. Mr Young also gave evidence of his inability to wash the windows, which would be washed every two or three months. He was also inhibited in the general maintenance work he could do. For example, he could paint but not if it required any stretching above his shoulders, though he could climb a ladder to do that.

306. He stated that he did not cook any more, though he accepted that, prior to the accident, his wife would from time to time and predominantly do the cooking, and he accepted that he could, if needed, do some cooking and that he did cook a barbeque and some meals. He has been able to do that again.

307. Mrs Young’s evidence suggested also that the Further Amended Statement of Particulars was a little generous to Mr Young. She confirmed that he was presently able to do the cooking, that she mainly does the washing and that it had always been that way. She said that shopping was normally her job.

308. She had also seen her husband pulling out weeds, though she was not asked about any consequences of that.

309. Mr Young also gave evidence of significant work he had yet to do on the house to complete it, electrical work and building work, including painting. Much of this work appeared as though it was not currently being done and this was included in the estimate of hours spent by others providing gratuitous services.

310. It appears that, with pacing, as he had been taught at the CIMC, he could do a number of tasks but sometimes there would be an after-effect.

311. It also seemed to me that the age of the children meant that, especially into the future, they would, as members of the household and as part of their growing up, participate in the operations of the household, rather than provide gratuitous services because of Mr Young’s disability.

312. On all the evidence, it seemed to me that the claim for past gratuitous services was a little high. I consider that eight hours a week would be reasonable for past services on the evidence that I have heard. This amounts to date to approximately $46,500 and I allow that sum.

313. The High Court held in Grincelis v House [2000] HCA 42; (2000) 201 CLR 321 that interest accruing on these damages at the rate set out in the Rules (see r 1616 of the Court Procedures Rules 2006 (ACT) and Schedule 2) should be awarded. In this case, I award the amount of $7,500.

314. It seems to me that as I previously indicated, Mr Young is likely to make some improvement. I also consider that the children are likely to participate somewhat more as an incident of their membership of the household. Thus, the amount of gratuitous services required would diminish. I also note that as Mr Davidson has since died his assistance is no longer available. There was no indication of a replacement for his work.

315. Doing the best I can, I consider that a present lump sum of $50,000 would be a reasonable amount for the damages payable under this head.

316. There was no claim for loss of superannuation and I have not allowed any amount for this.

317. That total seems to me to represent an appropriate reflection of the effects of the motor vehicle accident upon Mr Young.

318. There will be judgment for the plaintiff for $1,294,759.46. I shall hear the parties as to costs.

I certify that the preceding three hundred and eighteen (318) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Supreme Court of the ACT

Young v Rothin [2009] ACTSC 71 (1 July 2009)