Marinkovic v McNaughton[2016] QDC 136

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 30 April 2010 the plaintiff had stopped in a line of traffic after driving north along Mains Road, Sunnybank when his vehicle was struck from behind at some speed by one driven by the first defendant. The plaintiff alleges that as a result of this he suffered personal injury. Liability is not in issue, but there is a dispute as to quantum of damages. The process of assessment is complicated by the fact that the plaintiff had also been involved in an accident in October 2008, in which he had also suffered injury. In these circumstances, the assessment of damages depends essentially on the extent to which the plaintiff’s condition has been made worse as a result of the second collision: Nilon v Bezzina [1988] 2 Qd R 420. The plaintiff’s case was that by the time of the second accident he had largely recovered from the first, whereas the defendants submitted that the plaintiff’s current problems were really the result of the first accident, or pre-existing degeneration.

2. [2]
   The plaintiff was born on 6 November 1956 and came to Australia in 1969: p 6. He left school at about age 16 and did a range of jobs, including qualifying as a boilermaker welder in a car factory. He also spent time driving trucks at a mine, and went overseas for three years, then worked for a time as a tiler’s labourer before obtaining a tiler’s license in 2004.^[1]He described various jobs associated with tiling work, some of which did sound quite physically demanding: pp 9, 10. He worked as an independent tradesmen, doing both domestic and commercial jobs: p 10. In about 2005 he built a house as an owner builder, doing some of the work himself and helping other tradesmen do their work: p 12. The house was finally sold in 2009, at a reasonable profit.

The first accident

3. [3]
   The first accident occurred on 7 October 2008. The plaintiff had had his van parked in front of the new house, and was reversing in order to u-turn it when there was a collision with a four wheel drive which was driven down the driveway of the house next door: p 13. The plaintiff said that he suffered a sore neck as a result of this which interfered with his work for a time, but he was getting better again, doing lots of exercises on medical advice, and was wanting to do more work at the time when the second accident occurred: p 14.

The second accident

4. [4]
   The second accident occurred on 30 April 2010 when he was stationary behind traffic in a right turning lane in Mains Road waiting for a traffic light when his vehicle was struck from behind with some force and without any warning: p 15. He hit his head on the windscreen, and his breath was knocked out of him. He was taken by ambulance to the QE2 Hospital where he was given morphine, but early the next morning he was discharged; the next day his neck and back felt sore, and he went to see a GP: p 17. He was treated initially with bed rest and hydrotherapy, but after a time shortage of funds drove him back to work, though he had great difficulty in working and needed to take frequent rest breaks: p 17. His ability to work has not improved (p 20) and he gets pain in his neck, right shoulder and lower back, stirred up by any activity: p 22. He takes painkillers when he needs to: p 21.

Medical Evidence

5. [5]
   There are a large number of medical reports in evidence. The plaintiff’s general practitioner issued a medical certificate on 25 November 2008 confirming that he had seen the plaintiff on 9 October and found him to be suffering from a whiplash injury which left him with symptoms of dizziness and pain with neck movement. At that date physiotherapy was thought to be appropriate, and he was said to be fit for alterative duties from the date of the accident to 31 December 2008.^[2]

6. [6]
   The plaintiff was seen by Dr Todman, a neurologist, for the purposes of a report to the plaintiff’s lawyers dated 17 November 2009.^[3]At that stage the plaintiff was complaining about persistent neck pain worse on the left side, extending into the left arm with some intermit numbness and pins and needles in the left hand, and frequent headaches. He was restricted in his work and in domestic chores and recreational activities. On examination there was tenderness and muscle spasm, and significant restriction in movement of the cervical spine. Doctor Todman diagnosed chronic musculo-ligamentous strain to the cervical spine, with the headaches said to be muscle tension type commonly encountered with such injuries. He attributed an 8% whole person impairment to the injury on the basis that it fell within DRE category two in the AMA guide, plus a further 3% in respect of the headaches. At the time of the first report Dr Todman had not seen an MRI of the spine. After seeing one he prepared a supplementary report on 25 January 2010 to the plaintiff’s solicitors.^[4]Doctor Todman said that the scan demonstrated some age related degenerative changes in the spine, but did not resile from his previous diagnosis of a chronic musculo-ligamentous strain due to whiplash. He did not recommend surgery, but suggested further physiotherapy, with medication for the headaches.

7. [7]
   The plaintiff was seen again by Dr Todman for the purposes of a report in relation to the second accident which was provided to the plaintiff’s solicitors dated 4 April 2013.^[5]The complaint to Dr Todman was that after the second accident the plaintiff suffered severe low back pain and an increase in the neck pain and headaches, and pain in the right arm which had struck the door in the collision. He told Dr Todman that prior to this accident the headaches and neck pain from the first accident had declined over time, but were still an issue at the time of the second accident. There had been considerable interference with his work since the second accident, which he had been getting back into before it. There was on examination restriction of movement in the spine, tenderness and muscle spasm, bilaterally and over both trapezius muscles. There was also restriction of movement in the lumbar spine. A CT scan taken in April 2013 revealed some age related degenerative changes in the lumbar spine. Dr Todman thought that the symptoms currently being suffered were attributable to the second accident, involving a whiplash injury to the cervical and lumbar spine, that is to say chronic musculo-ligamentous strain. Disability from the neck injury was put at 7% whole person impairment, of which 2% was attributable to the pre-existing condition. There was a further three precent whole person impairment for pain from the related headaches, and a further 7% whole person impairment for the lumbar spine injury.

8. [8]
   There was a further report prepared by Dr Todman dated 20 October 2015 and provided to the solicitors for the plaintiff.^[6]On examination there was restricted movement in the lumbar spine and in the cervical spine, with tenderness in the cervical muscles and in both trapezius muscles. At that stage the plaintiff complained he was being restricted in his work capacity, working only two to four hours per day after which he had to take rest and pain relief. Essentially Dr Todman’s view remained as set out in the earlier report. He thought the symptoms would continue to affect the plaintiff in day to day activities, and that his work would be limited to lighter duties and part time work, and he would be excluded from heavy domestic activities and home maintenance.

9. [9]
   In oral evidence Dr Todman confirmed that the examinations occurred on the dates of the reports: p 2-39, p 2-41. Under cross-examination he confirmed that the complaints by the plaintiff to him were as recorded in his reports and the restrictions in range of motion that he recorded were those obtained in formal examinations using a standardised methodology: p 2-43. He expressed the view that any pre-existing degeneration in the spine did not produce an impairment if it was not symptomatic: p 2-43. Dr Todman thought that the degenerative changes evident in the scans were what would be expected for someone of his age, and that he would have expected that, notwithstanding those changes, the plaintiff would probably have worked as a tiler until the normal retirement age if the accident had not occurred: p 2-44.

10. [10]
    The plaintiff was seen by Dr Morris, an orthopaedic surgeon, on 24 November 2009 for the purposes of a report to the third party insurer of the other vehicle in the first accident.^[7]At that stage the plaintiff was complaining about neck pain which radiated from the skull down the neck, present most of the time, and made worse by activity, or moving his head; there was occasional paraesthesia in the left arm. On examination movements were stiff and with some restriction. An MRI performed on 3 December 2009 showed bilateral disc narrowing with potential irritation of the left C5 nerve root. This was regarded as underlining degenerative change which would produce the symptoms in any event. The continuing symptoms were said to be producing loss of function which made it difficult for him to do the heavier parts of the job of a tiler, though Dr Morris thought he was still capable of working full time. The actual aggravation was thought to have lasted only for three months. Dr Morris thought that there was no permanent impairment as a result of the accident, though he assessed a permanent impairment of 5% from the degeneration of the spine.

11. [11]
    Dr Morris prepared a supplementary report at the instance of the insurer of the other vehicle in the first accident, which merely gives the answer to specific questions.^[8]Dr Morris expressed the view that the plaintiff was then capable of working full time as a tiler although he might need some assistance in doing heavier jobs. Any restriction related to pre-existing degeneration, which had been aggravated in the accident, the aggravation having now ceased. He thought it probably that the plaintiff would have been experiencing symptoms from his neck anyway within 12 to 18 months even if the accident had not occurred. The problems in the neck could have been triggered by some relatively minor event.

12. [12]
    Dr Morris saw the plaintiff again on 31 July 2012 for the purposes of a report for the defendants’ solicitors.^[9]He stated the plaintiff sustained a cervical spine injury, lumbar spine injury and shoulder injury in the second accident. At the time of the examination there were complaints of pain at the back of the cervical spine into the right shoulder down to the left scapula, with some symptoms of numbness into his left arm and fingers. He gets dizzy from time to time. He has lumbar spine pain most of the time, about the same as the neck, made worse by bending, sitting for more than 30 minutes or lifting his arm above his head. There was some inconsistency in performance during examination, with differences in restriction of movement at times, suggestive of exaggeration of symptoms. Dr Morris was of the opinion that the second accident had produced a mild aggravation of symptoms of the cervical spine which has since settled, but had caused a soft tissue injury to the right shoulder and the lumbar spine, attributable to the second accident. He thought that this had impacted on his ability to work, though he thought the plaintiff’s hands suggested that he was doing more work than he admitted to.

13. [13]
    In oral evidence Dr Morris said there was no muscle spasm or guarding in the more recent examination: p 2-11. The significance of spasm is that it is an objective indication of pain: p 2-18. Under cross-examination Dr Morris confirmed his opinion that the second accident had produced an injury which had impacted on the plaintiff’s ability to work: p 2-16. He later clarified that the shoulder injury was related to a cervical spine injury: p 2-17.^[10]

14. [14]
    The plaintiff was seen on 16 February 2010 by Dr Pentis, an orthopaedic surgeon, for the purposes of a report to the plaintiff’s solicitors.^[11]The plaintiff was then complaining of headaches, dizziness, and soreness of the neck and shoulder muscles and in the occipital region. He had occasional paraesthesia on the left side, and various things aggravated his problems, including lifting, sitting or driving for any length of time. Dr Pentis understood that the plaintiff now employed someone to do heavy work in his tiling business, and he had been unable to follow previous hobbies of soccer and riding a motorbike. On examination there was tenderness in various muscles and a decreased range of movement, more so to the right than the left, and pain on lateral rotation and flexion. An MRI showed some degeneration of the C4-C5 level. Dr Pentis was of the opinion that the plaintiff had sustained soft tissue musculoligamentous injuries to the cervical spine which had aggravated the degenerative problems in the area. It had settled to a degree with little sign of specific nerve root entrapment, and he was best treated conservatively. He should limit heavy lifting and any vigorous sports, and his neck was more prone to aggravation in the long term. Dr Pentis assessed whole person impairment as 5% to 8% because of the injury, on top of the pre-existing 3% to 5% from the degeneration.

15. [15]
    The plaintiff was seen again by Dr Pentis on 8 April 2013 for the purposes of a report to the plaintiff’s solicitors in relation to the second accident.^[12]Dr Pentis was of the opinion that the plaintiff had suffered a low back injury, in the form of a soft tissue injury and aggravation of pre-existing degenerative problems with the lower spine. He noted that there was tenderness in the muscles in the area and decreased ranges of motion, though there was good straight leg raising on both sides and no motor or sensory deficits in the lower limbs. There were no signs of nerve root entrapment and surgical intervention was not indicated. He thought the plaintiff should give up tiling because it would be too heavy for him, though he could supervise and prepare quotes and organise other tilers. He should not undertake any recreational activities that upset the spine. He thought that the effect of the accident was to produce a 5% whole person impairment on top of the pre-existing 3% to 5% whole person impairment, presumably due to degeneration.

16. [16]
    The plaintiff was seen again by Dr Pentis on 6 October 2015 for the purposes of an updated report for the plaintiff’s solicitors.^[13]The plaintiff was complaining of constant pain in the neck, shoulder and lower back, some days better than others. At the time he saw Dr Pentis he was walking with a stick. Any strenuous activity tended to aggravate his problem. There was some paraesthesia on the left hand side of his body, and some headaches, and at the time of the examination the neck pain was worse than the lower back pain. At that time he was only doing some light duties in the form of welding, and the only recreation was playing cards. There was tenderness in the lumbar region and in the cervical area and decreased movement in the neck and lower spine attributed to pain. There was some numbness in one leg, but straight leg raising was good on both sides. Motor and sensory functions were basically normal.

17. [17]
    Dr Pentis thought the plaintiff had healed the best he would from the second accident, and noted there were some pre-existing degenerative problems and a previous accident which had also affected the cervical spine. He thought the plaintiff should limit strenuous activities and that he was really only suited to a light sedentary job, though he was unlikely in fact to be employed because of his age and his susceptibility for further aggravations. He thought there was a 5% whole person impairment from the neck injury from the second accident in addition to 5% whole person impairment due to degeneration from the previous accident, and in the lumbar spine there was 6% whole person impairment on top of a pre-existing 3% to 5% whole person impairment due to the degeneration. The shoulder injury may have been attributed to some rotator cuff problems which would be due to pre-existing degeneration though it may have been aggravated somewhat by the second accident which would produce a 2% to 3% whole person impairment.

18. [18]
    In oral evidence Dr Pentis confirmed that the plaintiff had during the examination on 16 February 2010 said the various things, referred to in his first report: p 2-3, 4. Dr Pentis acknowledged that the degeneration could give rise to similar symptoms in the neck, particularly as it deteriorated further: p 2-5. Given the extent of his degeneration he would have advised him not to do heavy tiling work to age 65 apart from the accident, but whether he would otherwise have continued to work to that age really depended on a range of factors and he could not say definitely: p 2-6. By the time of his examination it was difficult to say whether the disk bulge detected at C4-C5 could have been made worse by the first accident: p 2-6. Dr Pentis summarised his opinion as to the effect on the plaintiff’s work by saying that there were limitations from the problem in the neck and additional limitations from the problem in the back so that tiling was not a job he should continue with long term: p 2-8. There would be difficulty both with lifting tiles and with getting into the various awkward positions needed in order to lay them.

19. [19]
    The plaintiff was seen on referral from his general practitioner by a neurologist, Dr Tho who reported on 5 May 2010 in relation to complaints of dizziness, said to have been a problem since the first accident.^[14]He was initially having about five attacks per week, reduced to two per week by the time of the report. The doctor thought that this could be a form of post traumatic cervical vertigo, but recommended examination by an ear, nose and throat surgeon to exclude other possibilities if symptoms persisted. Dr Tho did not give oral evidence.

20. [20]
    The plaintiff was examined on 30 October 2013 by a neurologist, Dr Saines for the purposes of a report to the second defendant.^[15]The plaintiff gave an account of the second accident which included having pain in the head, neck and lower back after the accident. He told Dr Saines that he returned to work about one week after the accident but only undertook lighter duties and had to employ an assistant. He had since increased his work load but it remained limited. There was a complaint of constant lower back pain with no sciatica, and right shoulder pain which limits elevation of the arms. He also had neck pain but with no significant symptoms in the arms, and mild dizziness without true vertigo. He reported the neck injury after the earlier motor vehicle accident, which had been helped by physiotherapy but had continued and was worse after the second accident.

21. [21]
    On examination there was slight restriction of the range of cervical movement, reported tenderness over the cervical spine, but no significant muscle spasm. Right shoulder movement was reduced in range and lumbar movements were moderately restricted, with again no muscle spasm of the lumbar back. Dr Saines thought that there were no objective neurological findings on the examination, and no abnormality from x-rays apart from degenerative changes at the lumbosacral disc level. He was not able to confirm that the plaintiff had suffered a permanent injury to the spine as a result of the accident, and believed that the ongoing symptoms related to the underlining degenerative disease. There was said to be no neurological complication. He assessed whole person impairment at 0% for both the neck and the lumbar spine.

22. [22]
    In the report Dr Saines referred to the plaintiff being booked to undertake an MIR, and being interested in the results. In oral evidence he said that he had read the report of the MRI; though not reviewed the films (p 2-48) and there was nothing in the report which caused him to change the opinion expressed in his report: p 2-49. There is an MRI report dated 20 November 2013 in evidence.^[16]It is expressed in technical language which does not mean anything to me. He said that the reduction in range of cervical movements was less than 30 degrees, but the effect of the cross-examination was to show that the results of his examination in terms of the range of movement in the lumbar spine was much the same as the results obtained on examination by Dr Todman: p 2-50, 51.

23. [23]
    Dr Saines confirmed that his assessment was conducted on the basis that he was unable to find objective confirmation of the plaintiff’s complaints (p 2-52, 53), so the effect of his evidence, properly understood, was not that the plaintiff had no injury, but that he had not seen any objective evidence to demonstrate the existence of such an injury. That is not necessarily the same approach as adopted by a court. In addition, when expressing the opinion that the plaintiff’s symptoms were attributed to underlining degeneration, he was not applying the legal test of considering whether the plaintiff would have been in the same position had the relevant accident never occurred, and he seemed to have some difficulty with that approach: p 2-52.

24. [24]
    Overall the medical specialists concerned with the physical state of the plaintiff’s spine were divided, but Dr Saines was the only specialist who did not conclude that the plaintiff had suffered an injury to the lumbar spine, and to the right shoulder, and Dr Morris also seemed to think there was an injury to the cervical spine, though it is not entirely clear what consequences he attributed to it. The effect of his evidence seemed to be that the symptoms in the neck resulting from the second accident had settled by the time of his examination, but that the symptoms in the right shoulder, which were then continuing, were themselves related to the cervical spine injury, so that injury was continuing to produce some effect, even if only in the right shoulder. Overall, the weight of the medical evidence supports the conclusion that in the second accident the plaintiff did suffer injuries to the cervical spine, lumbar spine and right shoulder. Dr Staines did not express any particular opinion about the effect of any injury on the plaintiff’s ability to work; since he did not confirm the existence of any permanent injury as a result of the second accident, that is not surprising. The other three specialists however all supported a conclusion that the plaintiff’s ability to work as a tiler was impaired by the second accident, and most, to a significant extent.

25. [25]
    The plaintiff was seen by a psychiatrist, Dr Byth on 24 August 2013 for the purposes of a report to his solicitors.^[17]Dr Byth diagnosed adjusted disorder with anxiety and depressed mood. He thought this was in the mild to moderate range of severity, having caused marked objective stress. There were some symptoms of post-traumatic stress disorder and specific traffic phobia, but not sufficient to make a diagnosis. He thought the plaintiff may at times have warranted a diagnosis of panic disorder or major depression. Dr Byth thought that the plaintiff was subjectively distressed to talk about the motor vehicle accident, and that he appeared to be in discomfort in his back and neck during the interview. He found no evidence of psychosis, factitious disorder, exaggeration or malingering. He doubted that psychological factors were playing a part in the complaints of pain and physical impairment.

26. [26]
    Dr Byth recommended specialist psychiatric treatment over a period of two years, but because of the duration of the condition doubted the plaintiff would obtain full remission after treatment, particularly in a context where he had ongoing lower back pain. Dr Byth did a PIRS assessment from which he derived a whole person impairment of 17% from the conversion tables. He did not consider there was any pre-existing psychiatric impairment.

27. [27]
    Dr Byth saw the plaintiff again on 11 October 2015 for the purposes of an updated report to the solicitors.^[18]He considered that the plaintiff’s diagnosis remained one of adjustment disorder with anxiety and depressed mood, though there were some continuing symptoms of specific traffic phobia and post-traumatic stress disorder. He thought that the anxiety and depression were now of a moderate severity despite intermittent treatment with anti-depression medication. His recommendations for treatment and prognoses, and assessment of whole person impairment on the basis of a PIRS assessment, remained the same.

28. [28]
    When cross-examined about his PIRS assessment it did not seem to me that Dr Byth made any significant concessions. In cross-examination it was suggested to Dr Byth that there were complaints to Ms Coles about symptoms of depression after the first accident but prior to the second, which suggested that the absence of an allowance for any pre-existing condition in the PIRS assessment was not appropriate: p 1-74. There are two difficulties with this. The first is that Ms Coles is an occupational therapist, not a psychiatrist or a psychologist, and was not in a position to say whether the plaintiff’s complaints reflected some real physiological problem prior to the second accident. The second is that Ms Coles saw the plaintiff about the first accident only after the second accident had occurred, indeed fairly soon after it had occurred, at which time it might have been particularly difficult even for her to perform an assessment of his occupational capacity prior to the second accident.^[19]

29. [29]
    Dr Byth at first suggested that the psychological condition that he identified had been developed as a result of the physical symptoms suffered by the plaintiff following the second accident, so that it was a psychiatric disorder which was secondary to physical impairment rather than one which was caused directly by the accident. In those circumstances, the PIRS assessment process does not ­apply anyway.^[20]Later however, Dr Byth expressed the view that aspects of the plaintiff’s psychiatric condition were caused directly by the accident and aspects were secondary to his physical injuries: p 1-82. As between the two however, he thought the symptoms which were secondary to the physical injuries were the more important, particularly in the long term: p 1-83.

30. [30]
    The plaintiff was seen by Dr Chalk, a psychiatrist, on 28 April 2015 for the purposes of a report at the instance of the solicitors for the defendants.^[21]Dr Chalk thought that the plaintiff at best had mild symptoms of an adjustment disorder with depressed and anxious mood in the setting of chronic pain. He performed a PIRS assessment and obtained a percentage whole person impairment from the conversion table of 5%. Dr Chalk also thought that there did not appear to have been any significant emotional difficulties arising from the earlier motor vehicle accident and also made no allowance for any pre-existing condition, notwithstanding that he had seen the report of Helen Coles from 2010. He considered that the plaintiff’s working ability was impacted principally by his physical injuries, and the psychiatric symptoms alone would not preclude him from full employment. Dr Chalk’s description of the mental state examination was more positive of that of Dr Byth.

31. [31]
    Under cross-examination Dr Chalk agreed that there were a number of matters reported to Dr Byth which had not been reported to him: p 2-57, 58. Dr Chalk confirmed that he was diagnosing an adjustment disorder with depressed and anxious mood, though at the mild end of the spectrum: p 2-61. He confirmed that this was something which arose because of the physical symptoms consequent on the accident, rather than directly from the accident itself: p 2-61.

32. [32]
    The plaintiff was seen by an occupational therapist, Helen Coles, on 31 May 2010 for the purposes of an assessment for the plaintiff’s solicitors.^[22]This assessment was undertaken in relation to the first accident, though in fact it occurred one month after the second accident, when the plaintiff would have been particularly affected by the consequences of that accident. In those circumstances, I would expect this to have interfered with her ability properly to assess the consequences of the first accident. Indeed, Ms Coles stated in her report that because of the second accident his functional capacities could not be retrospectively assessed.^[23]In addition, because the second accident was so recent there was no formal assessment of load carrying capacity. Ms Coles in her report catalogued the plaintiff’s complaints, and noted that he impressed as stoic ­­­in endeavouring to continue his work despite pain. She thought it reasonable that he had to be selective in the type of work undertaken. She thought the full range of duties as a tiler could be expected significantly to aggravate and to perpetuate his pain after the first accident, and she did not think that he would be likely to obtain employment as a tiler in the open market.

33. [33]
    The plaintiff was seen again by Ms Coles for the purposes of a report to the plaintiff’s solicitors on 7 March 2013.^[24]He told Ms Coles that his neck pain had been worse since he was last seen, as had his lower back pain and at times his right shoulder pain. His stamina was reduced, and he had gained weight. Ms Coles in this report again recorded the current complaints and the plaintiff’s account of what he could and could not do, and expressed the opinion that he continued to experience deficiencies in his functional capacity relating to reduced tolerances and capacities, and to his subjective pain experience. She repeated the view that he would have significant difficulty obtaining work as a tiler in the open labour market.

34. [34]
    Ms Coles prepared a further report for the plaintiff’s solicitor following a further assessment of the plaintiff on 22 October 2015.^[25]The plaintiff complained that the neck pain and the lower back pain were worse than when he was last seen, and he was developing occasional pins and needles in his left leg, but otherwise his symptoms were unchanged. He avoided driving, mainly because of concern about dizziness. It seems he did little around the house. The main difference seemed to be that the person who had been assisting in the tiling work was no longer available for this, and as a result the plaintiff was doing very little tiling work at all. In other respects Ms Coles essentially confirmed her earlier opinions. Ms Coles said that on the most recent assessment the plaintiff had calluses on his hands, but they were not calluses to the extent of someone who was continually doing very heavy work full time: p 2-25. She was unable to say what level of assistance in his work the plaintiff would have needed if the second accident had not occurred: p 2-26.

Income tax records

35. [35]
    There were income tax returns in evidence for the plaintiff from 2004 to 2014,^[26]but they raised more questions than they answered. In 2004 the income declared was $5,792 from the business, less than the amount of Commonwealth government allowances, presumably Newstart, of $7,396, producing a taxable income of only $13,188. The business generated income of $14,140, and involved expenses of $8,348. It appears however that this return was only lodged in 2011. In 2005 the business generated income of $8,970, and had expenses of $8,489, producing net income of only $481, so that most of the $5,175 taxable income for the year came from government allowances, $4,694. This return appears to have been lodged in April 2009. The 2006 tax return showed business income of $49,801, and after deducting business expenses of $22,273 there was net (and taxable) income of $27,528. The 2007 return showed business income of $25,315, but expenses of $11,518, to produce net business income, and taxable income, of $13,797. There were no government allowances declared that year, and again this return was apparently lodged in April 2009.

36. [36]
    In 2008 total business income was $98,401, but expenses came to $86,765, leaving net income from the business, and taxable income, of $11,636. The return shows the largest amount of expenses, $25,000, simply as “Bob”, even more than the $22,634 for materials and supplies, and $15,833 for salaries and wages.^[27]There is a second entry for materials and supplies of $5,471. It is not clear when this return was lodged, but a notice of assessment for the 2008 financial year did not issue until 15 July 2009. The 2009 tax return, which would have covered the period involving the first accident, had business income of only $12,100, and expenses of only $7,334, leaving net income of $4,766; there were also government allowance payments of $4,658 producing a total taxable income of $9,329. This return was signed and lodged by the plaintiff on 23 September 2010.

37. [37]
    The 2010 tax return showed business income of $10,108 but expenses of $7,756 left a net income of only $2,352; there were also government allowances of $10,118 that year. The 2011 return showed business income of $11,091, expenses of $5,344 and net income from the business of $5,747; government allowances for the year came to only $2,784, and the taxable income was $8,366; by comparison his wife’s taxable income for the year was $37,231 (p 123). In that year the materials and supplies figure came to a modest $360, less than the amount claimed for telephone expenses: p 128. In the 2012 tax return, business income was only $2,470, and expenses came to $2,191, with net income only $279. That year government allowances came to $8,815. The 2013 tax return showed business income of $26,553 and expenses of $11,942, with materials and supplies the bulk of this at $6,401. Net business income was $14,611 and Newstart allowance of $9,776 was received. The 2014 return showed business income of $52,341, but expenses of $38,293 so that net income for the year was $14,048. It does not appear that any amount was paid by way of Newstart allowance in that financial year. The breakdown of expenses shows a substantial amount, $30,180, for materials, but no allowance for employees or subcontractors. Indeed, the expenses listed in all the returns since the first accident do not show any amount payable either to employees or to subcontractors.

38. [38]
    The plaintiff claimed that he did not do much paid work between 2005 and 2009 because he was working on the house: p 12. That explanation is not consistent with the documentary material in the form of his owner builder records: Ex 20, document 5.3. These records include a certificate of substantial completion dated 23 October 2006 (p 58) a final plumbing inspection certificate dated 24 October 2006 (p 54), and a certificate for the installation of the smoke alarm dated 19 October 2006: p 43. I would expect that all of these things would be done when the house was effectively finished and ready for occupation. When asked about the certificate of substantial completion, the plaintiff claimed that this was issued at the lock up stage: p 2-84. That is obviously not correct. Apart from anything else, there is in document 5.3 a copy of the building contract for the house which shows a series of payment stages including enclosed stage (i.e. lock up stage), fixing stage, and practical completion; there is no stage after practical completion: document 5.3, p 95. The plaintiff claimed that he did more work after practical completion (p 2- 85) but it would not have taken him three years to do the outside work.^[28]I cannot accept that in 2008 he was working on the home 75-80% of his time, as he claimed: p 1-69. 

39. [39]
    There are only a few documents in this bundle which are dated after October 2006. There is a certificate of insurance dated 5 December 2007 (p 119) but this relates to a tiling business being carried on then at the address of that property. There is a quotation dated 6 October 2007 (p 122) and a receipt for payment dated 15 October 2007 (p 121) for roof installation, but this is something that could be fitted after the roof was constructed, and indeed after the home had been occupied. There is also a Bunnings order for a water tank dated 18 April 2007 (p 112) and another Bunnings receipt dated 20 May 2007 which is illegible: p 111. It seems to me that for practical purposes this house was built by the end of 2006, and by the end of 2007 the plaintiff was living in it. There is no documentation for any tiles being supplied after 2006.

40. [40]
    The income tax returns show a drop off in gross income in the 2007 financial year, which would be consistent with the plaintiff being distracted by house building activity from about mid-2006. Gross income was higher again in 2008, but net income declined, essentially because of the payment of $25,000 to “Bob”, which was explained by another witness as a payment to him for materials.^[29]Apart from that, however, there have been substantial variations in the gross income of the tiling business as revealed in the tax returns which are not clearly explained by the evidence, and which do not correlate well with the two accidents. Broadly speaking, net income peaked in 2006, then steadily declined to 2012 before bouncing up again in 2013 and 2014. As well, there is wide variation in the ratio of gross earnings to expenses. One would expect some expenses, like motor vehicle expenses and depreciation, to be similar from year to year, but other expenses to vary according to how much work was done, but that is not the case. For example, gross income was very similar in 2006 and 2014, but in 2014 expenses were 72% higher, not due to employee or subcontractors. This was not explained in the evidence.

41. [41]
    The plaintiff in his evidence was very vague about his business earnings, and suggested in effect that he had no idea what money he was making at any given time, though he maintained that before the first accident he was a fast and efficient tiler who always had plenty of work to do. The effect of his evidence was that after the first accident he continued to work but had to employ people to assist him by doing the heavier work, which suggests that the gross income of his business should not have been greatly affected, but the net income should have dropped because outgoings went up. That is not reflected in the tax returns. His evidence that his capacity for work has not improved since the second accident, indeed that if anything his symptoms have become more severe as time has passed since the second accident, is not consistent with the increase in net income in 2013 and 2014.

42. [42]
    At one point the plaintiff said, by way of explanation for the relatively high turnover for the 2008 tax year, that he recalled adding something for his labour when building his own house to his income because he made a profit when he sold the house: p 2-83. I cannot accept that evidence. Apart from the fact that the house was supposed to have been sold in 2009, after the relevant period, at all times the plaintiff’s tax returns were prepared by accountants or tax agents, and I cannot believe they would have prepared a return in that way, whatever the plaintiff might have indicated to them. I think this was just an exercise in his trying to distance himself from the content of the income tax returns.^[30]As well, the figures given in the notice of accident forms for average weekly income^[31]are quite inconsistent with the tax returns.

43. [43]
    There is also the consideration that two men who had worked with the plaintiff as a tiler spoke quite well of him as a tiler before the first accident. Mr Pantic who was a builder and then a property developer said that the plaintiff had been a tiling contractor for his company on various jobs: p 2-67. He said this was between 1994 and 1996, then 1997-1999 and 2005-2009: p 2-69. He described him as a good tiler, very punctual and willing to help out in other areas where a hand was needed. He had not however worked for him since 2009: p 2-69. He had the impression that the plaintiff always had plenty of work, but it is not clear how reliable that would have been: p 2-70. Mr Siljegovis was a tiler who had known the plaintiff essentially all his life: p 3-2, 3. He did commercial work, and at times the plaintiff had helped him out with jobs, or he had helped the plaintiff out with jobs, and he had passed on to the plaintiff smaller jobs of a kind which he would not do: p 3-3. He described the plaintiff as a good tiler, a very hard worker. He said that after the motor vehicle accident the plaintiff would only do perhaps two or three hours work, and then say that he could not work any longer: p 3-3.^[32]   He had seen the plaintiff do tiling work in 2015, a commercial job at Ipswich Road, not a heavy job, but he sent his son to help the plaintiff to finish it: p 3-8. This evidence supports the proposition that the plaintiff was able to work successfully as a tiling contractor prior to the first accident, which seems inconsistent with some of the turnover figures in the income tax returns.

44. [44]
    Mr Pantic said that he offered the plaintiff a job in 2007, but the offer was really only in a very preliminary way because the plaintiff did not show any interest at that stage: p 2-72. He did not specify the income level that job would have involved, but in later years there were also job offers to the plaintiff which involved an income of about $85,000 per annum, and if the 2007 job was at something like that figure it would have been dramatically more than the net return from the plaintiff’s tiling business as shown in the tax documents, $13,797. I suppose it would be possible for a person who did not try very hard, or who had difficulty getting work, to have a business as a tiler but not make very much money out of it, but the evidence from other witnesses does not depict the plaintiff in that light. One complicating factor is that the plaintiff admitted that at times he did work on a barter basis and evidently did not declare the value of the benefits received as income: p 1-67.

45. [45]
    The plaintiff also rejected offers of employment after the second accident. There was some conflict of evidence between him and the putative employer as to one of these offers. Mr Cowen, a director of a motor vehicle wrecking company, said that the plaintiff had done some welding and tiling and cleaning work for him from time to time from about 2008, and that about six weeks ago he had offered him a job doing that sort of work on a full time basis, at wages of $20 per hour: p 2-63, 2-65. He said that the plaintiff’s response was that he would like to do it but could not. He described the plaintiff as a good worker, and available most of the time. In that job he was not required to do heavy work, just more of the work that he did, but the plaintiff had said that he would not be physically capable of doing it: p 2-66.

46. [46]
    On the other hand, the plaintiff’s evidence was that he refused the offer of this job because there was too much heavy work involved, an assessment he made by reference to the work that had been done by the full time employee whom he would be replacing: p 2-76. The sort of work the job entailed as described by the plaintiff did seem to extend to the work which was a good deal heavier than the work described by Mr Cowen, and it is possible that there was actually some misunderstanding between them as to just what the plaintiff would be expected to do in this position. I believe however that a more plausible explanation is simply that the plaintiff did not feel that he was up to working on a full time basis, even doing the sort of relatively light work that he had previously been doing for Mr Cowen.

47. [47]
    It seems very strange that he would pass up job offers since 2007 which on their face would have brought in much more money than the almost insignificant amounts which he was earning from his tiling business, if that were really all that he was making from it, particularly when he claims to have been depressed because of the difficulty he had in earning enough money to support his family. I must say that overall I think that the most plausible explanation for the inconsistency between the plaintiff’s evidence and the content of the tax returns is that the latter are essentially works of fiction.

48. [48]
    Counsel for the defendants submitted that I should reject the plaintiff’s oral evidence for various reasons including that it was inconsistent with the content of the tax returns, which I should accept as reliable.^[33]He did not advance any plausible reason for my accepting the tax returns as reliable, and I do not do so.

Credibility of the plaintiff

49. [49]
    There was a widespread and detailed attack on the credibility of the plaintiff in the submissions on behalf of the defendant. Much of this was based on an inability to recall matters of detail, including some matters quite some time ago, which I consider it unsurprising that the plaintiff would not be able to recall, though there were some matters where the plaintiff claimed to be unable to recall details which I would have expected someone in his position to remember. On the other hand, it might be expected that his psychiatric condition would interfere with his ability to recall details. Of more concern to me were some of the things that he said, particularly when attempting to explain information in the tax returns, and I have noted specifically elsewhere some particular things the plaintiff said that I cannot accept. There were also various inconsistencies identified between what the plaintiff said in evidence and what he had told various doctors at different times.

50. [50]
    I do not regard any inconsistency between the plaintiff’s evidence and what appeared to be very sketchy and brief records from the general practitioner as being of any significance, but some inconsistencies with evidence of the history given to other medical practitioners is of greater significance, though there needs to be some measure of caution on both sides; I suspect that doctors tend to report what they have noted down, and they tend to note down those things that they are told which strike them as being of significance to their diagnosis. The most comprehensive record of the plaintiff’s complaints was found in Dr Byth’s report, and there is relatively little to criticise in that report.

51. [51]
    It was I think not correct that Dr Byth was proceeding on the basis that the dizziness was related to the second accident; rather that there were episodes of dizziness after the second accident, which was the case. In any case, the dizziness provides really an alternative explanation for a reluctance to drive, and Dr Byth made it clear^[34]that his assessment of symptoms of traffic phobia was based not on the dizziness but on other matters more specifically related to physiological symptoms. Similarly, the evidence of Dr Byth (p 81) does not show that he was relying on unreliable evidence of income earning activities in forming his assessment of the plaintiff; rather the effect of that evidence is that he would expect the psychiatric condition he had diagnosed would impact on the plaintiff’s earning capacity in the way that he explained, and that was consistent with what the plaintiff had said to him.

52. [52]
    It was submitted that the plaintiff was being evasive about a number of things. There were occasions when I thought the plaintiff was being evasive, particularly in relation to the content of his tax returns, but I did not consider for example he was being evasive about the signature on the notice of claim; it is perfectly plausible that he might have no particular recollection of having signed that document some years earlier, even though he could see, as he acknowledged, that his signature was on it. It was submitted that some of the documents used in the proceeding in relation to the earlier accident suggested greater significance of the consequences of the earlier accident than the plaintiff’s evidence. My view is that the plaintiff in his oral evidence was inclined to minimise the effect of the first accident immediately prior to the second accident, but I think the more likely explanation for the documents used in the earlier proceeding is that they did not reflect such improvement as had occurred. A better indication is that that earlier claim was settled for a modest sum, a very modest sum in the light of the claims in the documents, which is consistent with the plaintiff’s condition having in fact improved prior to the second accident so that his subsequent problems were not principally associated with the first accident. In these circumstances I do not attribute much significance to the documents produced for the first proceeding, when understandably enough the plaintiff’s solicitors would have been keen to paint the consequences of the first accident in the worst possible light.

53. [53]
    Overall I am wary about the reliability of the plaintiff’s evidence. Nevertheless, I consider that the plaintiff’s basic complaints about his symptoms are reliable, for a number of reasons. Dr Morris did accept that the plaintiff had suffered real injuries in the second accident, and they were the sort of injuries one would expect to produce pain. It is commonplace that soft tissue injuries are not detectable by x-rays etc., so a lack of objective evidence of the injuries is not in itself of particular significance. I thought of greater significance was the fact that both psychiatrists considered that the plaintiff was suffering from real pain, and appeared to regard his complaints of pain as genuine.^[35]In addition, there was evidence of the plaintiff’s behaviour from other witnesses who had had dealings with the plaintiff since the accident which would be consistent with his suffering real problems after the second accident.^[36]Overall, therefore, although I am wary about the plaintiff’s evidence, I am prepared to accept his evidence in relation to the back, neck and shoulder symptoms that he has suffered since the second accident, and his evidence of his psychiatric symptoms.

Defence Submissions

54. [54]
    It was submitted for the defendants that I should be sceptical of the allegations of pain in the right shoulder and in the lower back as consequences of the second accident, because there had been no prompt complaint about these after the second accident to medical practitioners. Counsel for the defendants drew attention to the QE2 triage record entry involving a denial of pain in the neck, though the entry also notes that there was a hard cervical collar in situ, and the notes recorded pain in the right shoulder.^[37]The doctor’s notes indicate complaints of a headache, right shoulder pain and neck pain as well as paraesthesia to the right arm in the distribution of the ulnar nerve, and noted a diagnosis of neck sprain/strain (trauma related).^[38]The ambulance notes also refer to neck/shoulder pain: p 310. Defence counsel’s reading of these records was I think very selective; they show a neck injury, with neck pain, as well as shoulder pain and a neurological symptom in the right arm. The only thing missing is any reference to lower back pain.

55. [55]
    Counsel for the defendants also referred to an absence of references in the notes of the general practitioner.^[39]These however are very brief notes and there seems to have been no systematic attempt to record all of the patient’s history or complaints. On the other hand on 31 May 2010, quite soon after the second accident, the plaintiff was seen by Helen Coles and she took a detailed account of the effects of the second accident on him, extending over six pages of her report.^[40]There included that his neck pain was worse after the second accident, that he was getting dizziness and worse headaches, that he had pain in the right shoulder and surrounding areas immediately after the second accident, always present but aggravated by work and indeed any use, and also pain in parts of the right arm, and lower back pain “evident in the initial days after the second accident, which worsened” and was aggravated by bending or by prolonged sitting or activity, or lifting. None of the right shoulder, right arm or lower back problems had been present before the second accident. That was quite soon after the second accident, and I regard that as sufficiently contemporaneous documentation of the existence of these complaints promptly after the second accident to confirm their relationship to the second accident, and to show they reflect injuries suffered in that accident.

56. [56]
    It was submitted for the defendants that the plaintiff was not giving reliable evidence when he claimed that immediately prior to the second accident he had virtually recovered from the first accident. I do not interpret the plaintiff’s oral evidence as amounting to an assertion that his symptoms arising from the first accident had disappeared completely by the point immediately prior to the second accident, but the plaintiff did seem to be asserting at times, that he had, at least by immediately prior to the second accident, overcome the difficulties with his tiling work arising from the first accident.^[41]This is inconsistent with what he told Ms Coles in the first interview at the end of May 2010, shortly after the second accident.^[42]What he said then about the neck pain was that after the first accident it was initially severe but had improved progressively, though it was aggravated by lifting, and some movements were restricted by pain. After the second accident his neck pain had increased a lot. Before the second accident there were a number of aspects of tiling which he would not do: sheeting, jackhammering or other demolishing, carrying heavy items, work which involved working above shoulder height. He said that he did half of what he did after the first accident, which was not even a quarter of what he used to do before the first accident: p 69. This of course is very soon after the second accident, but does show that his working capacity was adversely affected by the first accident immediately prior to the second accident.

57. [57]
    Broadly speaking, that is consistent with the complaints made to the doctors who were seen between the first and the second accident. Although there was some gap in time between the last of these and the second accident, Dr Pentis (16 February 2010), understood there were still limitations on lifting at work which Dr Pentis expected would be permanent. Dr Morris saw him on 24 November 2009, and also thought that there were limitations on his ability to do heavier work, though he attributed this to the underlining degeneration rather than the first accident. Overall, I consider that the evidence supports a finding that the plaintiff’s symptoms had been improving prior to the second accident, but that he was still to some extent limited in the work that he could do, in that he had difficulty with the heavier aspects of tiling work. To the extent that that is inconsistent with the plaintiff’s evidence, I reject his evidence.

58. [58]
    On the other hand, I do not accept the other submission on behalf of the defendants, that the plaintiff was essentially no worse off after the second accident than he had been after the first accident, even if this is only directed to the question of the effect on his tiling work. The bulk of the medical evidence supports the view that the plaintiff suffered additional injuries in the second accident, and I accept that he did so, in particular suffering a right shoulder injury and low back pain which would be further obstacles to any hands on tiling work, that is, work other than “supervision”. The evidence also supports the view that the plaintiff’s pre-existing neck condition was aggravated by the second accident, and there was the further difficulty of his psychiatric condition. In relation to this, the main difference between the psychiatrists is as to the severity of the condition, rather than its existence and its connection with the second accident.

59. [59]
    The psychiatric condition is also something I would expect would be likely to impair his earning capacity after the second accident. Significantly, both psychiatrists appear to have accepted that the plaintiff was suffering real pain, and that the psychiatric problems he had were either wholly (Dr Chalk) or substantially (Dr Byth) secondary to that pain. Dr Byth commented on the absence of indications of malingering or exaggeration.^[43]That also supports a conclusion that the plaintiff was significantly worse off after the second accident than after the first accident. That is what one would expect given that the plaintiff’s vehicle was stationary when struck from behind with some force. His truck was written off,^[44]and the other vehicle, a car, had been going at 65 kph at the time of the collision.^[45]

60. [60]
    Although there is a good deal of the plaintiff’s evidence which I do not regard as reliable, I do accept, in the light of all of the evidence, that he suffered and continues to suffer pain since the second accident, to a significant extent, and that in the second accident he suffered injury to his lower back, his right shoulder, and an aggravation of a pre-existing condition of the neck, and that as a result of those injuries he has suffered an adverse psychological reaction, namely an adjustment disorder with anxiety and depressed mood. It was submitted for the defendants that the plaintiff’s injuries in the first accident had been significantly affecting his ability to work, and that it was not clearly shown that the situation was significantly different after the second accident. I reject that submission, and consider that the plaintiff was significantly worse off after the second accident, in terms of his physical condition, particularly his pain, his psychiatric condition (which was new) and the effect on his ability to work.

General Damages - ISV

61. [61]
    In order to assess an ISV it is necessary first to determine the dominant injury, that is the injury of the multiple injuries having the highest range of injury scale values.^[46]That requires the identification of the appropriate item for each of the injuries, assessed as a sole injury. With regard to the injury to the cervical spine, this I accept to be an aggravation of a pre-existing problem, which was probably characterised as a pre-existing degenerative condition which had been itself aggravated by the first accident, although strictly speaking the characterisation of the pre-existing condition does not matter for the purposes of this exercise. Accordingly when considering the impact of the aggravation of the pre-existing condition I can have regard only to the extent to which the pre-existing condition has been made worse by the injury.^[47]When assessing an ISV, whole person impairment is an important consideration (s 10) but the court may have regard to other matters including age, pain, and the effect of the pre-existing condition of the injured person: s 9. Dr Todman assessed the cervical spine injury as producing a 7% whole person impairment of which 2% was pre-existing, assessed under AMA 5 guidelines.^[48]In addition he assessed 3% whole person impairment in accordance with AMA 5 in respect of the headaches, of which 1% was said to be pre-existing. Headaches are not treated as an injury within Schedule 4, and that means that they must be treated as an aspect of the spine injury.

62. [62]
    Dr Pentis attributed 5-6% whole person impairment to the further effects of the second accident, on top of the pre-existing 5% whole person impairment, said to be estimated using AMA 5 guidelines. Dr Morris assessed a 0% permanent impairment associated with the cervical spine; this is inconsistent with the opinions of Dr Todman and Dr Pentis, and I reject it as also appearing to be inconsistent with the reality that a painful neck which became more painful on activity would inevitably tend to impair activity. Overall I consider that the injury to the cervical spine in the second accident falls into item 88 which has an ISV range of 5-10. Standing alone it would be towards the top of that range, because, notwithstanding the effects of the pre-existing condition, there is a good deal of pain including headaches associated with this injury for which allowance should be made under s 9.

63. [63]
    The lower back injury was assessed by Dr Todman as producing a whole person impairment of 7%, and by Dr Pentis as having a whole person impairment of 10% of which 4% was attributed to the pre-existing degeneration. Dr Todman did not attribute any impairment to an asymptomatic degeneration of the spine, and in those circumstances those two doctors had similar assessments of 6-7% whole person impairment of the lumbar spine. I prefer that general approach to that of Dr Morris, who assessed 0% permanent impairment to the lumbar spine, though he seemed to recognise that there was an injury to it and that it would adversely affect the plaintiff’s ability to work as a tiler. In those circumstances, the appropriate item is item 93, which has an ISV range of 5-10, and in view of the disability percentages assessed and the extent of the pain it would be appropriate to allow an ISV at or close to the top of that range for this injury alone.

64. [64]
    The shoulder injury is more complicated. It was not separately assessed by Dr Todman, and was assessed as producing a whole person impairment of 2-3% by Dr Pentis. Dr Morris in his report accepted the symptoms in the right shoulder were attributable to the second accident, and described it as soft tissue injury which may be related to a rotator cuff tendinitis.^[49]In oral evidence however he suggested that the right shoulder injury was secondary to the injury to the cervical spine: p 2-17. Dr Morris did not assess whole person impairment for the shoulder injury. The plaintiff had complained of pain in the right shoulder to me (p 1-22) and to Helen Coles in 2013 and 2015, and indeed complained immediately after the accident as noted earlier. The medical evidence is not clear but I accept that there is some injury which is persisting in the right shoulder. In those circumstances, it clearly does not fall within item 98, so the appropriate item in schedule 4 is item 97 which has an ISV range of 6 to 15. Assessed separately this injury would fall towards the bottom of that range, but because of the way the scheme works this becomes the dominant injury because it has the highest ISV at the top of the range for that injury.

65. [65]
    As I have indicated, the psychiatric injury cannot be assessed as an injury in itself. However, if it had been, I would accept Dr Byth’s PIRS assessment in preference to that of Dr Chalk, since the plaintiff was more forthcoming with Dr Byth and appeared to be hostile to Dr Chalk in the interview. It also seemed to me that there were aspects of the PIRS assessment undertaken by Dr Chalk which were susceptible of some critical analysis under cross-examination, whereas Dr Byth was not shaken in cross-examination on his assessment. Accordingly I prefer Dr Byth’s assessment, which produced a PIRS rating of 17% from the conversion table. If this had been assessed as an injury caused directly by the accident, it would have fallen within item 11, a serious mental disorder having an ISV range of 11 to 40, and given the PIRS rating would probably have produced an ISV of 20 or more.

66. [66]
    Although strictly speaking I should assess separately that part of the plaintiff’s psychiatric condition not attributable to his reaction to his pain, which is not caught by Schedule 3 s 5 of the Regulation, I have no separate PIRS assessment for that and expect that any such assessment would not support a characterisation of that psychiatric injury other than in item 13 in Schedule 4 of the Regulation, so it will not be the dominant injury. 

67. [67]
    I regard this as a significant feature of this case. If the psychiatric injury could have been assessed as a separate injury it would clearly have been the dominant injury, and bearing in mind the extent and severity of the other injuries, the assessment of an ISV for the multiple injuries would probably have been 30 or more. I do not think however that the mere fact that the psychiatric consequences of the other injuries is to be treated as an feature of the other injuries, means that physical injuries which might well justify something towards the top of the relevant ISV range anyway cannot receive any or any significant additional ISV allowance, because of the existence of a significant psychiatric effect. It certainly demonstrates that an ISV limited to 15 for the three injuries including the impact of this psychological feature is quite inadequate, so that this is a case where the ISV assessment should be higher than the maximum dominant ISV.

68. [68]
    A further 25% of 15 is only 18, so the limitation in s 4(3)(b) produces an ISV of 18, bearing in mind that an ISV must be a whole number.^[50]If there were no psychiatric injury, I consider that the multiple physical injuries could be adequately accommodated within the limit imposed by s 4(3)(b), and would assess the physical injuries alone as producing an ISV of 17. It seems to me that there must be some significant further allowance in the present case to accommodate the fact that there is a physiological effect which is of such significance. I appreciate that there has to be some tapering involved and it is not simply a question of adding separate ISV’s when assessing multiple injuries, indeed significant tapering, but I consider that in the present case in order properly to reflect that severity of the psychiatric condition developed by the plaintiff as a consequence of his physical injuries, it is appropriate to allow an ISV which is in excess of 25% higher than the maximum dominant ISV.

69. [69]
    I appreciate that this should rarely be done, but I consider that in light of the analysis set out above it is justified in the particular circumstances of this case. For what it is worth, in my experience it has certainly been rare for there to be an assessment which is more than 25% higher than the maximum dominant ISV since this system was introduced. In my judgment, after having regard to the content of the relevant provisions of Schedule 4, and the requirements in the sections in Schedule 3, to the regulation, and having regard to all of the relevant circumstances in the present case, I assessed an ISV for the plaintiff’s injuries in the second accident of 25. The plaintiff’s general damages are then to be assessed by reference to table one in Schedule 7, given that the injury arose on 30 April 2010. From that table an ISV of 25 converts to $35,000.

70. [70]
    I should say two more things about this assessment. First, it assumes that the effect of Schedule 3 s 5 is that it applies to any adverse psychological reaction, even one amounting to a recognised psychiatric illness, and that there is no significance in the different wording between “adverse psychological reaction” in s 5 and “mental disorder” in s 6. If I am wrong about that, and s 5 only applies to an adverse psychological reaction which falls short of a mental disorder, so that a recognised psychiatric injury is to be assessed as a mental disorder under s 6, the result would be a higher ISV, since the starting point would be an ISV of 20 or more for the mental disorder itself, and I would allow at least a further 10 for the physical injuries.

71. [71]
    The second point is that the amount awarded is substantially in excess of the amount sought by counsel for the plaintiff, but counsel for the plaintiff identified as the dominant injury the lower back injury which he correctly placed in item 93. I think counsel for the plaintiff failed to appreciate that the identification of the dominant injury is not by reference to which is the most severe injury, but simply which injury has the highest ISV at the top of the range for that injury in Schedule 4. Once that is appreciated, in my opinion the dominant injury is the shoulder injury under item 97, because that has the highest maximum ISV for its range, of 15. The other problem with the approach of counsel for the plaintiff is that it appears to have disregarded the consequences of the application of s 5 and the significance in assessing the ISV for the physical injuries of the significant feature of those injuries produced by the adverse psychological reaction.

Economic loss

72. [72]
    There were in evidence a number of records relating to old claims for workers compensation dating mostly from the 1980’s,^[51]and it was submitted that the plaintiff had previously injured his back in workplace incidents. It is sufficient to say that there was no medical evidence suggesting that any of those incidents was of any continuing significance in relation to the state of his back at the time of the second accident or subsequently, and I therefore regard them as irrelevant. There was evidence the plaintiff had a number of other medical conditions over the years, most of which would have obviously been of no real concern to his earning capacity, or relevant to the various injuries suffered in the second accident.^[52]There were also a number of other matters which may well have interfered with his ability to work for a time, but where there was no medical evidence to show that they were of any continuing relevance at the time of the second accident.^[53]After the first accident the plaintiff suffered intermittentvertigo which would to some extent have interfered with his ability to drive. Apparently it is continuing, and a definite cause for it was never established, although it is probably associated with his neck problems. There is obviously no basis for any significant discount in relation to economic loss from the effects of any of these conditions; to the extent they are ongoing, they would not have produced any significant interference with the plaintiff’s ability to earn anyway.

73. [73]
    I accept, consistent with the weight of medical evidence, that immediately before the second accident the plaintiff was continuing to have some interference in his ability to do his tiling work as a result of the first accident, and the pre-existing degeneration of his cervical spine, in that the heavy tasks associated with that work were still beyond him. For practical purposes that meant that he either had to confine himself to small tiling jobs, or obtain the assistance of someone else who would do the heavy parts of the work. I accept that that would have interfered with his ability to work as a tiler and reduced the income he would otherwise have earned in that way. This would have left him with a reduced earning capacity as a result of the first accident.

74. [74]
    I find that as a result of the second accident the plaintiff’s earning capacity was further reduced. He had additional physical injuries which would be productive of additional pain, where the pain was aggravated by doing many of the things associated with tiling, particularly lifting and bending. I would expect that the plaintiff’s ability to cope with these changes in his physical capacity, and to maximise his earning capacity within the scope of those physical changes, would in turn have been restricted by the psychiatric condition he developed. The overall picture, in the light of all of the evidence and with appropriate caution about the oral evidence of the plaintiff, was that the plaintiff had moved from a position where he could generally cope with tiling work apart from the heavier aspects of it to a position where he had difficulty in doing even light tiling work other than to a limited extent. That would obviously produce a significant limitation on his earning capacity as a result of the second accident.

75. [75]
    The difficulty is in determining the extent to which this limitation in his capacity was productive of financial loss to him. I am in the situation where, not only is there no reliable evidence of what money the plaintiff was making, but there is really no reliable evidence before me as to what sort of money one might reasonably expect a self-employed tiler to make, either working on his own or in a position where he had to employ someone to do the heavier parts of the work. One can understand that in some respects that would have impaired his productivity, and no doubt it reduced the profitability of his work, but on the other hand two people should have been able to do a job faster than one person working alone, and in that way one would expect that having to employ someone to do the heavier work would not necessarily be particularly destructive of his earning capacity.

76. [76]
    On the other hand, a situation where he was quite limited in his ability to do anything physical associated with tiling, and particularly a loss of a willingness to persevere because of his psychiatric state, would have significantly impacted on his earning capacity. That would also have been reflected in his move into some light welding work, the sort of work he was doing for Mr Cowen, which was evidentially not very well paid. I would expect that a tiler, even one that was not able to do the heavier work involved in tiling, would be able to earn net of business expenses more than $20 per hour. That he was doing that sort of work for Mr Cowen at all for such modest remuneration suggests that he really was struggling to do any sort of tiling work after the second accident. In my opinion the submission for the defendants that in substance the plaintiff’s earning capacity was much the same after the second accident was quite inconsistent with the evidence not just from the plaintiff, whose evidence I am inclined to discount, but from all of the plaintiff’s witnesses, upon whose credit there was no real attack mounted.

77. [77]
    Mr Cowen spoke of $20 per hour for full time work, but I assume that he was paying much to the same rate for causal work. That the plaintiff was doing that work suggests that that reflects the measure of his earning capacity now, and that the plaintiff seemed to be readily available for that work suggests that he was often not doing very much at all: p 2-63. I accept Mr Cowen’s evidence that he offered the plaintiff a full time position at that rate for that work, and that the plaintiff rejected the position, on the basis that he was not physically capable of that amount of work. That supports an inference that that is the plaintiff’s real position, and suggests that the plaintiff’s current earning capacity is less than the value of that position, which was about $40,000 per annum. I conclude on the basis of the evidence that the true position is that the plaintiff could do that sort of work for about half a day on most days, but occasionally there would be a bad day when he would not be able to cope, or perhaps a couple of bad days when he would only be able to do less work. If the plaintiff were able to move into working just on a supervisory basis that would be less physically demanding, but I think it is very likely that that would require a much better head for business than the plaintiff has, particularly given the restriction associated with his psychiatric condition. Realistically I think his current working capacity is about half a days work four days a week at about $20 per hour, or about $16,000 per annum. The tax on an income of $16,000 was $1,500 in 2011 and 2012; thereafter no tax was payable on that income: Ex 22.

78. [78]
    More difficulty lies in determining what his earning capacity would have been if it had not been for the second accident. I have no evidence of what a self-employed tiler ought to be able to earn, either with or without the limitation which arose after the first accident, and I have no reliable evidence as to what the plaintiff was earning between the first and second accident. The evidence that I do have that I can regard as reliable is that in early 2010, prior to the second accident, the plaintiff was offered a position by Mr Pantic at a salary of $86,000 per year, which initially he had been interested in taking up, but which he could not take up following the second accident: p 2-68. I accept this evidence. $86,000 per annum would carry a liability to pay $19,770 tax in 2011,^[54]so is the equivalent of $66,230 net of tax.

79. [79]
    That was a job which would involve some heavy work but from Mr Pantic’s description not very much, although it is understandable that in the aftermath of the second accident the plaintiff would decline the position. There had been a similar offer in 2008, which the plaintiff had also declined, apparently because at that stage the effects of the first accident were still fairly recent. It does not follow however that the plaintiff would not have taken up this second offer of a position had the second accident not happened, unless the plaintiff’s tiling business was in fact more remunerative than that position.

80. [80]
    I should take into account as well the possibility that the plaintiff would have declined the position anyway even if he had thought he was fit to take it and his tiling business was less remunerative, if he preferred to be self-employed. It is possible that that had some inherent attraction to him, but I doubt whether the plaintiff would have pursued self-employment rather than a paid position which he believed he could do if there was a significant economic disadvantage in doing so. On the whole I think that this possibility can be adequately allowed for by rounding down the plaintiff’s net earning capacity as indicated by this job offer to $60,000 per annum.

81. [81]
    That figures needs to be treated with a certain degree of caution, because the job was not a permanent full time position; rather it was a position for the life of the project. The plaintiff had never actually worked for Mr Pantic, and it is possible that Mr Pantic’s enthusiasm for him might have waned as a result of his work on that project, though I think that is fairly unlikely; Mr Pantic had known him for 20 years. More importantly however the prospect of further employment would depend no doubt in the continuing prosperity of Mr Pantic’s business. That could mean higher remuneration; Mr Pantic said that someone in that position now is getting $150,000 per year (p 2-69), and apparently the offer of a similar position to the plaintiff in 2008 was a more generous package because it included a car plus fuel allowance: p 2-70. If the plaintiff had stayed working for Mr Pantic, he might in time have graduated to the position of site manager, the position of the person he was to work under in the job offered to him in 2010: p 2-68. Presumably that position was better paid and less physically demanding, though that matter was not explored on the evidence. On the other hand, if things became tight the salary might go down, or there might be no position at all, though in that situation the plaintiff could always go back to tiling.

82. [82]
    It is also possible that the plaintiff may have taken on the job but then found that there was too much heavy work for him, the work perhaps stirring up the plaintiff’s neck pain too much. It is tempting to deal with the uncertainties by allowing a further discount, but the fact that the current holder of such a position is being paid so much suggests that there was some significant probability of beneficial uncertainties as well as harmful uncertainties, and of course if the plaintiff had been able to take the job there would have to be a reasonable chance that he would still be working for Mr Pantic and receiving that more generous salary now, if he was not in a better paid position. In those circumstances I am probably if anything erring on the side of caution in assessing the plaintiff’s earning capacity at the date of trial, had the second accident not occurred, at $60,000 net of tax per annum.

83. [83]
    With regard to past economic loss, it is not possible to quantify this with any degree of precision, largely because of a lack of reliable evidence. However, it is likely that the actual income was quite modest. It is possible that the plaintiff’s condition has been deteriorating, or that the development of his psychiatric condition has meant that subjectively the plaintiff’s condition has been deteriorating, but essentially there is no good evidence before me to suggest that the plaintiff has in fact been earning at a higher rate than the earning capacity that I am currently attributing to him.

84. [84]
    What is less clear is what the actual earnings would have been had the second accident not intervened, but even here, on the approach that I am adopting, the likelihood is that if the plaintiff had not accepted Mr Pantic’s offer, it would have been because he was earning much the same money anyway, or more, as a self-employed tiler, and therefore his economic loss would have been in the same order or greater than on the assumption that he would have accepted that offer of employment had the second accident not intervened. To the extent that there is a possibility to the contrary, I am taking that into account in applying a discount. Accordingly, although I do not have any reliable evidence of the actual earnings of the plaintiff between the first and second accidents, and after the second accident, or evidence which shows clearly what the actual earnings would have been had the second accident not intervened, I am confident that there is no real risk that if I assess damages for past economic loss on the basis of the difference between the estimates that I have made above, I am assessing a loss which is greater than the actual loss suffered by the plaintiff as a result of the injuries in the second accident.

85. [85]
    Over a period of six years and one month since the second accident, a loss at the rate of $44,500 per annum^[55]comes to about $270,000. That I think should be discounted by about 10% to accommodate the vicissitudes of life, including the risk that, had the second accident not happened, something else might have happened to further aggravate the plaintiff’s neck condition, or stir up lower back pain, or otherwise impair his earning capacity anyway. I will round the result down to $240,000, and allow past economic loss in that figure.

86. [86]
    The plaintiff also sought an allowance for past superannuation, at 9.25%, which comes to $22,200. If the plaintiff had been employed by Mr Pantic, he would presumably have received superannuation contributions, though this was not a matter touched on in evidence with Mr Pantic.^[56]There is however the possibility that, if the accident had not happened, the plaintiff would not have taken up this job but would have otherwise earned income as a self-employed tiler. In those circumstances, there would not have been any entitlement to an employer’s superannuation contribution, and there was no evidence the plaintiff was actually making superannuation contributions for himself. Accordingly there should be some discount applied to accommodate the possibility that on this basis superannuation contributions would not have been made if the second accident had not happened. There is no basis on the evidence for quantifying this possibility, and it is simply a matter of making some allowance as a matter of judgment. On this basis the amount of $22,200 should be moderated, and I will allow $15,000 on this basis.

87. [87]
    Interest is awarded on the amount of past economic loss in accordance with the Civil Liability Act 2003 s 60. The appropriate rate is by subsection (3) to be derived from the Reserve Bank rate for 10 year treasury bonds published under the series “F2”, which seems to have been discounted in 2013. There is however now a series F2.1, capital market yields – government bonds, which gives a yield as at April 2016 for ten year Commonwealth government bonds of 2.52%. I suppose this is the appropriate rate to use, though it is unfortunate the Act has not been amended to reflect the change in the practice of the Reserve Bank. Under the section interest is calculated at half that rate on the full amount for the whole period of six years and one month, an amount of $19,545.

Future economic loss

88. [88]
    The future introduces all sorts of further uncertainties, both in terms of the plaintiff’s current prospects and the hypothetical prospects of the plaintiff had the second accident not occurred. There may well have been further symptoms interfering with his ability to work as a tiler anyway, either from further degeneration in his spine or as a result of some other problem arising, but on the other hand it may be that had the second accident not intervened he could have developed a successful business as a tiler with the assistance of a labourer doing the heavy work for him. Such a combination might have maintained a reasonable level of productivity and profitability for him in any event, and would have been less of a burden on his spine than the work he was doing prior to the first accident. In those circumstances he might well have been able to work longer before age ultimately took its toll of him. There is really no helpful guidance from the evidence about these matters, since no one was prepared to say with any degree of precision what the prospects of the plaintiff were if the second accident had not intervened. To the extent that any doctors made comments about this, they were very general and in unhelpful terms.

89. [89]
    My impression overall is that the plaintiff’s expectation of being able to work until 70 (p 19) was probably optimistic, but the various possibilities can I think adequately be reflected by taking as a starting point an assumption of five years effective loss. That would take him to something like the traditional retirement age, and on the basis of my assumed starting point of current economic loss of $44,000 per annum now, the equivalent of $880 per week, over five years discounted at 5%, using a multiplier of 232,^[57]is $204,160. Although the figure of $44,000 is derived by a process which I regard as being moderate, appropriately so in the light of the evidence, I consider that the various uncertainties which arise in relation to future economic loss are so great that more than a conventional discount for the vicissitudes of life should be made, and I propose to discount this by about one third, which produces a figure I would round off to $135,000.

90. [90]
    When taking into account the various possibilities, it is necessary to have regard to favourable possibilities as well as unfavourable ones. Overall, therefore I consider that a figure in that amount for future economic loss would be justified. There was also a claim for future loss of superannuation benefits. Again there might well have been such a loss, but the process I think becomes so uncertain that it would be more appropriate in a situation such as this to treat the figure I have arrived at for future economic loss as really a lump sum figure, though one arrived at by logical analysis, rather than something which in any sense could be said to be a product of calculation, and in that situation I think it more appropriate to treat the lump sum figure as including loss of superannuation benefits. I will therefore not make a further allowance for future superannuation benefits.

Other matters and conclusion

91. [91]
    With regard to special damages, the Medicare refund was agreed at $577,^[58]and the plaintiff claimed further out of pocket specials in accordance with Ex 19 of $7,965. These depended essentially on the evidence of the plaintiff, and there was some reason to be doubtful about the extent to which he was actually taking the medication he claimed to be taking.^[59]The defendants in submissions conceded $2,100, which is I think a bit mean, since I would expect the plaintiff would be taking painkillers and anti-depressants on a fairly regular basis, and overall I will allow $4,000 for out of pocket special damages. That will carry interest calculated in the same way as interest on past economic loss, of $307.

92. [92]
    There was also an argument about future expenses. Dr Byth recommended specialist psychiatric treatment at a cost of $6,000.^[60]I generally accepted Dr Byth’s evidence, and see no reason not to allow this amount. Apart from that, I think it likely that there will be a continuing need for anti-depressant medication, and a continuing need for painkillers, probably for the rest of his life and probably increasing over time, even allowing for the plaintiff’s statements that he is reluctant to take medication. Presumably once the plaintiff qualifies for the age pension his medication costs will diminish. In that context I think the $4,000 conceded in submissions on behalf of the defendants is too low. In all the circumstances I allow $12,000 for future expenses.

93. [93]
    I summarise my assessment of damages as follows:

94. [94]
    I therefore give judgment that the second defendant pay the plaintiff $461,249, which includes $19,852 by way of interest. I will hear submissions in relation to costs when the reasons for judgment are published.