Rook v Crofts[2018] QDC 184

DISTRICT COURT OF QUEENSLAND

1. [1]
   The plaintiff was injured in a motor vehicle accident on 4 August 2013 when he was driving south along the Bruce Highway.^[1]He had his two children in the rear seat of the car with him when he came to an obstruction on the highway which caused him to brake abruptly: p 11. When he did so his daughter screamed, causing him to turn his head and body around to the left so as to see her, as he thought from her scream that she had been hurt. His car was then struck from behind, evidently with some force, by a motorcycle ridden by the first defendant.^[2]The plaintiff alleges that as a result of the accident he suffered injuries, both physical and psychological, and claims damages in respect of those injuries. Liability is not in issue, but there was a substantial difference between the parties at trial as to the quantum of the plaintiff’s damages. Accordingly I am concerned with the provisions of the Civil Liability Act 2003 only in respect of the assessment of damages.

2. [2]
   The plaintiff felt pain in his neck at once: p 12. The first defendant and other motorcyclists were apparently injured as well in the collision, and subsequently when ambulances attended the scene they were pre-occupied with the motorcyclists, and although the plaintiff spoke to one paramedic he did not receive any treatment and was taken from the scene by his father: p 11. After the accident the plaintiff felt sharp pain in the neck and the upper part of his back, on movement of his neck or of his head: p 12. He went to the doctor the next morning. The records of the Ingham Family Medical Practice record a consultation with a general practitioner on 5 August 2013,^[3]with a complaint of neck pain but no neck stiffness, and “pain between the shoulder blades following motor vehicle accident yesterday”.^[4]

3. [3]
   He was sent for x-rays of the cervical spine, undertaken on 7 August 2013 and reported as showing a cervical spine in normal alignment, no fracture seen and no soft tissue abnormality detected.^[5]After this he again saw his GP, whose notes record simply “results discussed”.^[6]There was also some reference to blood test results which had been ordered at the same time, and his medication was varied. He went back to the medical practice the next day where he saw a different doctor about pain and stiffness in his neck, and his emotional distress since the accident.^[7]He was told that he was experiencing whiplash pain, and referred to a psychologist.^[8]

4. [4]
   The plaintiff said that since the accident he has suffered ongoing pain in his neck and between his shoulder blades.^[9]It does not appear that he has frequently sought medical assistance specifically in relation to this. Although he has seen various general practitioners from time to time since then, there are few references in their notes to neck or shoulder pain. In October 2013 he began to work as a fisherman, and on 18 November 2013 consulted a general practitioner because of upper back pain and lower back pain, associated with pulling in big fish.^[10]This was aggravated on changing position in bed and on deep breathing. On examination he was tender at the T2 level, and the doctor prescribed Panadeine Forte and recommended heat packs and rubbing. Four days later he reported that the back pain had improved but it was still there; a further prescription for Panadeine Forte was provided.^[11]

5. [5]
   On 18 September 2014 he presented to a GP complaining about gastric reflux and was given various prescriptions, including for headaches.^[12]After he moved to Townsville in late 2016, he presented at a new general practitioner practice on 24 January 2017, where the doctor noted among other things “chronic neck pain post MVA 3 years ago gradually getting worse”.^[13]He complained of constant pain in the neck at the C3 level, with “difficult mobility”. On 14 February 2017 he was complaining to a GP about chest and neck pain, though that was in the context of an injury suffered when he was assaulted earlier that month. Painkillers were prescribed but that could have been explained by fractured ribs. During a consultation for other reasons on 15 March 2017 there was some reference to chronic cervical spine pain and migraine headaches.^[14]He had suffered from migraines before the accident, though he claimed that they have been worse since the neck injury: p 22. On 24 April 2017 when he saw a new general practitioner there was a note about “sore neck long term”.^[15]Overall my impression is that reference was made to neck and back pain associated with this accident usually only when he was seeing a new GP, who was taking a fuller history, and on other occasions nothing occurred about these injuries which the GPs regarded as notable. The pattern is a consistent with a continuing problem for which no particular treatment was proposed.

Background and employment

6. [6]
   The plaintiff had a somewhat varied employment history. Whilst still at school he development an interest in professional football, and after he completed year 12 he began to play with an Ipswich club, which arranged employment at the meatworks in Dinmore. While working there in March 1997 he cut himself on the right forearm which left him with some ongoing muscular weakness and loss of sensation as a result of an injury to a nerve. This injury was a subject of a report from an orthopaedic surgeon Dr Gillett dated 4 September 1998: Exhibit 2. The report indicated that two days after the injury the plaintiff returned to work, though he was on light duties for two months before returning to normal duties. Dr Gillett diagnosed disruption of the ulnar side muscles in the right forearm associated with injury to the medial cutaneous nerve. Dr Gillett thought that there was a residual problem relating to weakness and loss of sensation, although he would be able to participate in activities in daily life, recreation and work with modification of technique in relation to the use of his arm.^[16]  He assessed the permanent impairment as 5% due to weakness, or 6% taking into account also loss of sensation, in each case of upper limb function.^[17]I assume those percentages were assessed under the AMA guide current at that time.

7. [7]
   In the 2009-2010 financial year the plaintiff worked as a delivery driver, and then as a pond technician at a fish farm.^[18]That continued until 2011, after which it appears he worked for two agricultural supply businesses. It appears he was off work with septasemia from about the middle of 2013, and received Centrelink benefits until he began to work as a fisherman. At the time of the accident he was not at work as a result of having suffered from septicaemia. It was suggested that this was as a result of his use of intravenous drugs, but he did not accept that proposition himself and there was no reliable evidence to that effect.^[19]

8. [8]
   The plaintiff was at that time in the process of taking up work as a commercial fisherman, as a result of a boat becoming available because a brother who had been using the boat for fishing was moving to America.^[20]The plan was to modify the boat to install a holding tank so that fish could be kept alive after they have been caught, which he expected would improve their marketability: p 13. After the accident however when he tried to resume fishing, going out with his father who also has a fishing boat, he was only able to fish for one day after which his neck and back became too sore. That he was unable to do this work on an economic basis after the accident was confirmed by the evidence of his father. When he employed a deck hand to do the heavier work, the process became uneconomic: p 13.

9. [9]
   The plaintiff was employed on a casual basis as a shed hand from 17 July 2014 to 7 May 2015, by an agricultural products business, Liddle and Sons Pty Ltd.^[21]The plaintiff claimed that the work that he was doing as a shed hand caused pain with his back and neck, and that he had difficulty coping with this work.^[22]His employer who was aware of his work while he was working as a shed hand described his as a good worker and very obliging, who carried out his duties satisfactorily, and could not recall ever having to make allowances for any injuries.^[23]He left that employment because his relationship with his partner broke down, which left him very upset.^[24]The plaintiff said that the injuries that he suffered and financial pressures as a result placed a great strain on his marriage, and that lead to his separating from his wife in 2016.^[25]He agreed that he had been badly effected emotionally by the separation, and that it was very disruptive on his life at least for a time. As well, in the latter part of 2015 he was unable to work because of unrelated health problems.^[26]

10. [10]
    In January 2016 however he was taken on by Liddle and Sons Pty Ltd again, though on this occasion in a different capacity, to carry out repair work on a boat which had been purchased for the purpose of providing tourism services.^[27]Essentially, the boat needed work, and the plaintiff was thought of as someone who would be able to do that work. This was not undertaken under the supervision of Mrs Liddle, and she could not say whether his performance of the work was interfered with by any physical limitations: p 2-30. She was not happy with the quality of the repair work that was undertaken by him, and she said that further work had to be done on the boat, though whether that was because his work was defective or had been left uncompleted she could not say: 2-33. She said that the company would employ him again, but perhaps not on the same conditions: p 2-31.

11. [11]
    More recently the plaintiff obtained employment at the meat works at Townsville from 17 September to 17 December 2017, when the meatworks underwent a seasonal shut down, after which his employment recommenced around 8 April 2018 and continued at the date of trial: p 2-35.^[28]The plaintiff was initially employed in framing, a process which accommodates any inconsistency between the rate of production of boxes of meat and the ability of the next section of the plant to deal with the boxes, loading them on trucks or into containers or putting them in storage.^[29]In practical terms it involves removing surplus boxes of meat from the conveyor belt and placing them on a frame until the next section of the belt catches up and there is space to put the boxes back on. The boxes weigh up to 30kgs and the job involves manual handling. More recently he has been employed in the slicing section, slicing silverside: p 2-35. He changed to slicing only about 2 months before the trial: p 2-62. (It may have taken some time for the paper work to catch up: p 2-63). When the plaintiff applied for this employment he did not disclose any difficulties with his back or neck, and his employer was unaware of any limitations or restrictions in performing his work tasks: p 2-36. The plaintiff was well regarded by the employer: p 2-37.

12. [12]
    The meatworks maintains a health clinic which can provide on the site physiotherapy, which the plaintiff had attended once on 14 June 2018.^[30]The plaintiff said that he attended this after a physiotherapist who he was consulting privately had cancelled an appointment for him to receive treatment, in circumstances where he felt in need of treatment. The employer is currently short of slicers, and is seeking to secure additional employees in that area: p 2-36. The particular job that the plaintiff is doing as a slicer involves cutting a silverside, a piece of meat, which can weigh up to 20kgs into four separate pieces which are regarded then as different saleable products: p 2-57. There can also be a trimming of surplus fat: p 2-58. A slicer is regarded as a more skilled position than the boner, and by the time the slicer gets a piece of meat the bones have already been removed.

13. [13]
    His supervisor Mr Costello was happy with the plaintiff’s work: p 2-60.^[31]He had some understanding that the plaintiff had worked as a slicer in the past, but he would have received training from a specialised trainer before he was allowed to work as a slicer: p 2-59. His impression was that framing was heavier work, because it involved lifting heavier boxes but it was not as constant as the slicing: p 2-60. Where the plaintiff is working he has a cutting table onto which a piece of silverside drops down from a boner above about every three minutes. Once he has removed and trimmed particular pieces he has to place them on a conveyor belt which runs behind him, which would just involve turning and placing the meat on the belt: p 2-67. Meat is not supposed to be thrown onto the conveyor belt; this could cause trouble for an employee particularly if the meat ended up on the floor: p 2-67.

14. [14]
    A fellow employee at the meat works was called who gave evidence that he had also worked with the plaintiff a long time ago, and at that time he was good to work with, with a happy, friendly nature and good at conversation: p 2-23. When the plaintiff returned to work at the meatworks he noticed that the plaintiff was very stiff and rigid in his movement, and that he used to rub deep heat on himself in the mornings, and it was difficult for him to look up, so that if he wanted to look up to the higher level where the boners were it was necessary almost for him to crouch down: p 2-26.^[32]That the plaintiff was manifesting these difficulties with his spine at work was not shaken in cross-examination: indeed, the credibility of the witness was not challenged.

15. [15]
    The witness was cross-examined about the way the plaintiff behaved following a motor vehicle accident in August 2012. It emerged that the witness was only aware of one accident which he thought was in August of some year, and had been answering by reference to that accident, so that his answers were of no value: p 2-27. There is no evidence anyway that the plaintiff was working at the meatworks and in a position where the witness would have been able to observe him between the motor cycle accident in 2012 and the relevant accident in August 2013. The work at the meatworks is somewhat variable: at one time there were two shifts being worked each week (p 2-24) but subsequently that was reduced to one shift Tuesday to Friday, working 5am to around 3pm. More recently the shifts have been extended to include work on Mondays: p 2-25.

Expert evidence

16. [16]
    The plaintiff was seen on 18 November 2016 by Dr J Maguire, orthopaedic surgeon, for the purposes of a report at the instance of the plaintiff’s solicitors.^[33]Dr Maguire recorded the history of the collision in a way which seems to be consistent with the plaintiff’s evidence, and complaints of ongoing neck pain which was significant, with intermittent muscle spasm and restrictive movement in the cervical and upper thoracic regions. He had difficulty affording medication and ongoing physical care, in particular physiotherapy. Current complaints were of pain in the left-hand side of the cervical region, and in the upper thoracic region. On examination there was marked cervical tenderness on the left-hand side with marked restriction and range of motion, no neurological deficit in the upper limbs. The pain and spasm was worse at the C4 level on the left-hand side. There was also tenderness at the T4 level, but no neurological deficit noted. The diagnosis was soft tissue injury to the cervical spine with ongoing muscle spasm and restriction in range of motion. His prognosis was guarded, complicated by psychological trauma. The injuries were attributable to the accident, with the MRI showing minimal degeneration of the spine. He assessed whole person impairment at 5 per cent on the basis of DRE category 2 for the cervical spine, but DRE category 1 for the thoracic spine. He recommended continuing and perhaps increasing analgesics, and local treatment by physiotherapy.

17. [17]
    Dr Maguire saw the plaintiff again on 18 May 2018 for the purposes of an updated report.^[34]There were complaints of continuing pain in the thoracic and particularly the cervical spine, with marked restriction in range. On examination marked restriction in range of motion remained with some muscle spasm noted. He still thought that there were soft tissue injury to the cervical spine, and a degree of disc bulging or protrusion at the C6/7 level, and a thoracic disc protrusion at approximately the T6 level which was giving some localised pain. Dr Maguire still assessed the impairment to the cervical spine at 5 per cent, associated with asymmetrical range of motion and muscle spasm particularly on the left-hand side.^[35]However he would now assess the thoracic spine in DRE category 2, with a 5 per cent whole person impairment, because of a symptomatic small disc protrusion at the T6 level. This gave a total impairment rating of 10 per cent of the whole person. The plaintiff would have significant restrictions in his ability to work since he could only do a light work in the future, while his only experience and training had been in manual work, mostly of a heavier nature.

18. [18]
    There was also a file note of a conference with counsel which Dr Maguire subsequently saw and signed: Exhibit 8. This recorded his impression that the plaintiff was consistent on his examination on the two occasions that Dr Maguire saw him, and did not seem to be exaggerating. Dr Maguire thought the symptoms consistent with the mechanism of injury explained by the plaintiff. He thought in the first examination the symptoms were coming somewhat higher in the spine than the T6 level, but during the second examination the symptoms seemed to be lower and this caused him to review the scans of the lower levels, and detected what he identified as a protrusion. He commented that people with thoracic issues are often less precise about the location of the symptoms. He noted muscle spasm on one side of the cervical spine which was consistent with a restriction in the range of motion. Dr Maguire thought it likely that working as a slicer would aggravate the condition in the spine and doubted if the plaintiff would be able to continue such work on a long term basis, or other heavier work available at a meatworks.

19. [19]
    In cross-examination Dr Maguire expressed the view that the content of the GP’s notes would not be very helpful as to the existence or otherwise of continuing problems with the spine, because GP’s tend to focus on a particular complaint presented to them: p 50. Dr Maguire said that on his second examination he was able to detect the location of the pain in the thoracic spine more precisely, which led him to reassess the MRI results, and he found what he regarded as a small protrusion at the same level: p 50. He noted that this was not reported by the radiologist, and said that accordingly no-one would detect the condition unless they looked at the relevant part of the scan. Dr Maguire said that a disc protrusion in the thoracic spine is often overlooked because it produces few symptoms other than localised pain, and in particular does not give pain or nerve symptoms in the arms: p 51.

20. [20]
    Dr Maguire also said that, unless the person’s condition was so severe as to justify surgery, which was not the case with the plaintiff, the condition is very difficult to treat: p 51. Physiotherapy or other programs do not cure the problem, though they may relieve some discomfort. In these circumstances, there is very little that a GP can suggest, and hence little benefit in continuing to complain about the pain in the back: p 52. Dr Maguire was taken to the report provided in 1998 by Dr Gillett in relation to an injury suffered by the plaintiff to his arm, which Dr Gillett thought would lead to ongoing problems. Dr Maguire said that when he did a neurological assessment on the plaintiff’s upper limbs he did not find any major weakness in any of the motor function regions: p 54. Dr Maguire agreed that if there was weakness in the plaintiff’s dominant arm that would limit what he could do, particularly in terms of grip strength, though on his examination the plaintiff did not have any significant deficit in the five nerves that he examined: p 55.

21. [21]
    Dr Maguire said that on his examination of the MRI scan results at one level there is a small central disc protrusion which is indenting on the spinal canal space: p 56. Dr Maguire explained he did not see the injury on the first occasion because his attention was not directed to that particular image in the scan. He agreed that at the level above there were signs of minor degeneration, but considered that at this particular level there was a protrusion. Just looking at the MRI it was not possible to tell whether it was from degeneration or trauma, but traumatic injury was consistent with the history: p 58. Persistent attempts in cross-examination to get Dr Maguire to concede that the appearance of this level of the spine was equally consistent with degeneration were not successful.

22. [22]
    The plaintiff was examined on 17 September 2014 by Dr Fraser, orthopaedic surgeon, for the purposes of a report at the instance of the second defendant.^[36]The report records a fairly sketchy history, simply that his vehicle was struck from behind by a vehicle travelling faster, he was restrained by a seatbelt, an ambulance attended but he was not transported to hospital and he complained to his general practitioner the following day of a neck injury, but no other injuries. In respect of current symptoms he was said to be no longer having neck pain and that the neck was not too bad but he did experience intermittent pain in the upper thoracic area between the shoulder blades about once a week, with no radiation. There were no neurological symptoms, and his general health was good. He took Panadol or Mersyndol as required for pain relief. After the accident he was no longer able to carry on business as a professional fisherman, though at the time he was working as a shed hand. There was said to be no limitation of activities.

23. [23]
    On examination the spine was straight and non-tender, there was no muscle spasm, there was a full range of motion and no deviation of the spine from the plane of examination. There was no deficit on testing motor sensory or reflex functions in the upper limbs. The plaintiff was seen to be fit and muscular. Dr Fraser diagnosed “stains [sic? strains]” of the soft tissue structures of the neck and thoracic spine, which did not aggravate any pre-existing condition. He was said to perhaps require continuing intermittent analgesics, and that the injuries would have produced a temporary incapacity for work of about one month but he had the capacity to continue working as a shed hand until normal retirement age, and he would be able to return to work as a professional fisherman. There was no lasting incapacity from the injury or restriction to complete the activities of daily living. Maximum medical improvement had been achieved and there was no quantifiable impairment of bodily function. No deterioration was expected.

24. [24]
    The plaintiff was examined again by Dr Fraser for the purposes of a report on 2 November 2017.^[37]The history recorded was much the same as in the previous report. In terms of current symptoms it was said that the neck was progressively becoming worse.^[38]There was no pain at rest but pain on movement of the neck and associated headaches with no radiation to the upper limbs. The neck felt stiff, and there was a complaint of numbness in both arms a couple of times a week associated with sleeping postures. There was said to be a tender lump in the back of the neck. There were various other items in the past medical history recorded. Treatment had been in the form of massage therapy, Mersyndol and the use of various rubbing creams. At the time of the examination the plaintiff was working in an abattoir on a full time basis. Dr Fraser did not then see the MRI undertaken in 2015. He had a copy of the report of the x-rays in August 2013. On examination there was no tenderness to light palpation, no muscle spasm and both regions of the spine were straight. The active range of motion of the cervical spine was reduced, in the case of flexion by about one third, and in the case of lateral flexion and lateral rotation by about 20%.^[39]  There was no deviation of the spine during the examination, no deficit in motor sensory and reflex functions in the upper limbs and no tenderness or complaint of pain in the chest.

25. [25]
    Dr Fraser still thought the plaintiff had suffered strains of the soft tissue structure of the cervical spine, which had left him without any quantifiable impairment of bodily function. The condition was stable and stationary and there would be no deterioration. He said there was no adverse effect on capacity for work or ability to attend to the activities of daily living. The continuing symptoms were said to be not consistent with the nature of the injury suffered, and the current symptoms could not be related to any orthopaedic injury in August 2013.^[40]He noted that there was no record of continuing attendances for medical treatment for his neck injury after August 2013. Dr Fraser in essence adhered to his previous opinion that there was a transient strain of the soft tissue structures which did not explain the continuing symptoms.

26. [26]
    A further report was obtained from Dr Fraser on 19 June 2018 after he had seen a report provided by Dr Maguire in May 2018.^[41]Essentially Dr Fraser did not change his previously expressed opinion. He did not consider that the MRI prominences at the T5/6 and T6/7 levels were consistent with any injury in the accident, or were producing any symptoms to qualify for a DRE Category 2 injury for the purposes of the AMA 5 Guides. He thought that the changes in the discs were consistent with early degenerative disease of those levels of the spine.

27. [27]
    Under cross-examination Dr Fraser had no recollection of being told that the plaintiff had been turned in the seat and looking backwards at the moment of impact, but if he had known that, it would not have affected his opinion: p 2-42. Dr Fraser did however agree that that position of the body would render the plaintiff more prone to injury than might otherwise have been the case: p 2-51. Dr Fraser when asked about the note of the visit to the GP on 8 August 2013 did not think that he had identified that attendance at the time of his first and second reports: p 2-43. When asked about the significance of the apparent reduction in range of motion in terms of injury, Dr Fraser’s response was directed to the proposition that because any reduction was symmetrical then for the purposes of the AMA Guide the injury did not become one in DRE Category 2,^[42]so there was no rateable percentage impairment: p 2-45. On this basis he did not consider that the examination results obtained by DrMaguire justified a conclusion that the plaintiff’s spine was in DRE Category 2. His point was not that there was no injury, but that there was no rateable impairment for the purposes of the Guide: p2-46. He did concede that there may have been an injury to the thoracic spine: p 2-46. He acknowledged as well that the sort of injury described by the plaintiff was one prone to variable presentation from day to day: p 2-46.

28. [28]
    Dr Fraser said that he would have expected if the plaintiff had continued to suffer significant symptoms in his neck that he would have continued to see his general practitioner: p 2-47. Dr Fraser did however concede that if a patient had continuing symptoms of pain following a soft tissue injury to the neck or thoracic spine and went to a general practitioner, it would be unlikely that the GP would recommend that the patient see an orthopaedic surgeon, because an orthopaedic surgeon would not operate on a neck or thoracic spine just to treat pain: p 2-53 (at least most of them would not). He agreed that a person complaining of persisting pain would probably be told to take painkillers and perhaps get a massage or physiotherapy: p 2-53. Dr Fraser said that Mersyndol was an appropriate analgesic for treating pain from soft tissue injury in the neck: p 2-53. He said that his comment about continuing symptoms not being reasonably related to the accident in August 2013 was made on the basis of the nature of the injury suffered, the time that had elapsed since and the absence of clinical and radiological findings of permanent injury: p 2-48.

29. [29]
    Dr Fraser also disagreed with Dr Maguire about whether the discs above and below the T5/6 and T6/7 discs showed elements of desiccation: p 2-50. Dr Fraser said that he would not expect that the plaintiff had suffered traumatic disc protrusion in the motor vehicle accident, because if he had suffered such an injury the plaintiff would have experienced much greater symptoms, particularly much worse pain, but also neurological symptoms.^[43]Dr Fraser’s opinion was that soft tissue injuries to the neck and thoracic spine normally recover within a month or two, but he conceded that that was not invariably the case, and that some patients continue to complain of what he described as subjective symptoms for variable periods of time: p 2-52. He did not proffer an organic basis or justification for the fact that some people continue to complain of pain for an extended period after a soft tissue injury, describing that as opening a whole can of worms: p 2-54, p 2-55.

30. [30]
    There is nowhere near as much personal injury litigation as there used to be, say 20 years ago. In those days it was commonplace for people who had suffered soft tissue injuries to the spine to end up in court because orthopaedic surgeons said that such injuries generally go away in a few months, and insurers jumped from that proposition to a conclusion that continuing complaints of pain were not genuine. The same arguments were frequently rehearsed, and judges generally came to the conclusion that the fact that most of these injuries resolve in a few months does not mean that all such injuries resolve in a few months, and with those that did resolve in a few months, the injured person was unlikely to end up in court. In the present case, during Dr Fraser’s first examination the plaintiff presented with nothing very much in the way of continuing symptoms. That would have supported his conclusion that the plaintiff had suffered a soft tissue injury which had by then essentially resolved. Having made that diagnosis at that time, he appears to have been unwilling to depart from it in the light of later evidence which strikes me as being inconsistent with it.

31. [31]
    The plaintiff was seen by Mr Scalia an occupational therapist on 23 September 2015 for the purposes of a report.^[44]The plaintiff complained of constant neck pain with headaches two to three times a week, difficulty working overhead, lifting, driving and managing heavy manual labour, low mood and driving related anxiety. On examination range of movement revealed slight restriction on flexion and extension and rotation in each direction of the neck, and lateral flexion was full in both directions but with pain. The plaintiff reported difficulty with a lawnmower because of neck pain, experienced increased anxiety when driving, and in addition found driving limited to about one hour by neck pain, worse if he performed shoulder checks. There was difficulty in getting comfortable at night and difficulty sleeping. For some time after the accident he continued to have nightmares from it. He complained about difficulty with the heavier housekeeping tasks, heavier shopping and hanging out laundry, and he relied on his wife for these.

32. [32]
    Mr Scalia considered that the plaintiff was no longer suited to working as a fisherman, or any heavy manual work, and requires employment where he is able to avoid heavy lifting, prolonged reaching and overhead work. He was said not to be suited to working as a labourer. It was said that he had limited transferable skills, education and employment history, and that he faced multiple barriers in returning to work: p 27. In a conference with a counsel on 21 June 2018, a note of which signed by the witness became Exhibit 9, Mr Scalia expressed the view that work at a meatworks would aggravate the plaintiff’s symptoms and that it was unlikely that the plaintiff would be able to sustain a role like that in the long term.^[45]Mr Scalia did not expect that the plaintiff could undertake commercial fishing in view of his condition and the restrictions on activity which he observed. He was surprised that the plaintiff was able to undertake work at a meatworks, which was generally regarded as heavy work.

33. [33]
    Under cross-examination Mr Scalia agreed that the ongoing effects of the injury in the right forearm, and any continuing bursitis in the elbows, would adversely affect his ability to work in a meatworks, or in any manual work: p 82. However Mr Scalia had not specifically assessed any problems associated with lack of power in the right arm consequent upon the injury to nerves in the right forearm: p 87. Without this he cannot make an accurate assessment of the effect of that problem on his employment. No particular problem in this area stood out in the course of the testing that Mr Scalia undertook: p 87.

34. [34]
    Apart from his physical injuries, the plaintiff has also suffered psychiatric injury. He was seen on 5 April 2017 by Dr Caniato, a psychiatrist, for the purposes of a report.^[46]Dr Caniato diagnosed post-traumatic stress disorder and an aggravation of a pre-existing major depressive disorder. He noted that the plaintiff was reminded of the accident when his neck pain was playing up, and that he had nightmares about the accident although those had become much less frequent with time. He added that the relationship with his wife deteriorated and in early 2016 they separated. During the interview the plaintiff became teary easily, and he became distressed at times especially when discussing the accident. Objectively he appeared depressed and anxious. He described problems with attention and concentration, and he struggled to focus during the interview. That was a feature of the plaintiff’s presentation which was also noted by others, in particular Dr Maguire but also Mr Scalia.^[47]  That was also something I noticed in the witness box, where he presented as one of the most emotionally distressed plaintiffs that I have ever seen during a trial.

35. [35]
    The plaintiff reported that his GP had recommended psychiatric medication and counselling, but he had avoided this because he did not consider that the medication would be helpful, and did not want to have to discuss the accident with counsellors. He had never previously had any formal psychiatric or psychological treatment; many years ago he saw the Vietnam Veterans Counselling Service, in a context where his father was a Vietnam Veteran, but could not recall the details. He had a difficult upbringing because of his father’s post-traumatic stress disorder.

36. [36]
    Under cross-examination Dr Caniato said that the failure of the plaintiff to seek treatment was not an indicator that he was coping, rather this was a common phenomenon particularly for males in a rural setting: p 2-6. He said that adaption was measured largely by assessing occupational functioning: p 2-16. If the plaintiff had been able to obtain steady regular full time employment since the interview,^[48] then that indicated an improvement in his condition from when he was seen: p 2-7. This could lead to an adjustment of the PIRS rating in Category 6 from 3 to 2.^[49]Dr Caniato said that he was not able to understand from the report of the defendant’s psychiatrist how he arrived at a diagnosis of personality disorder: p 2-9. He also said that that report was unclear as to what diagnosis the PIRS rating obtained by that psychiatrist was attributed.

37. [37]
    Dr Caniato said that the post-traumatic stress disorder that he diagnosed was in his view caused directly by the accident, whereas the aggravation of the pre-existing depressive disorder was secondary to the neck injury: p 2-12. He thought that probably that also applied to some of the PTSD symptoms. He did not separate the two disorders for the purposes of undertaking the PIRS Assessment. Doing a separate assessment for the two conditions would be difficult because a lot of the symptoms can overlap: p 2-13. Dr Caniato also said that his impression of the plaintiff was that his distress during the interview was an objective symptom which was not easily falsified, and he regarded that as showing that his psychological injury was genuine: p 2-14. That it was associated with discussion of the accident provided an indication that it was related to the accident. He agreed that it would be difficult to assess now, given the time that has elapsed, what his functioning was like prior to the motor vehicle accident: p 2-15.

38. [38]
    The plaintiff was seen by Dr Shaikh, a psychiatrist, on 3 November 2017 for the purposes of a report at the instance of the defendants.^[50]Dr Shaikh concluded that the plaintiff had not suffered any psychiatric disorder as a consequence of the motor vehicle accident in August 2013. If there was any psychological distress at the time it was unlikely to have been clinically significant. He noted a history of psychiatric problems associated with a difficult upbringing, and there were previous notes of depressive symptoms and previous treatment for depression. He was also of the view that the plaintiff’s history of using cannabis and amphetamines, both before and after the accident, was likely to have produced the current symptoms even in the absence of the accident. The only diagnosis he made was poly-substance abuse and substance induced mood disorder, though he also identified as an axis II condition, personality disorder not otherwise specified: p 112.

39. [39]
    He went on to assess a PIRS rating at 0% on the basis that the plaintiff was in Class 1 for 5 of the 6 Categories and in Class 2, mild impairment, for social functioning. An assessment of the severity of an injury which the psychiatrist regards as non-existent is almost inevitably unlikely to be of any real value. Essentially, my impression of the effect of Dr Shaikh’s opinion was that the plaintiff was vulnerable because of difficulties in upbringing and he had problems thereafter associated with his use of illegal drugs, and that explained any current problems. Dr Shaikh did note in his report that the plaintiff was “somewhat emotional when talking about the event. He was otherwise euthymic. There was no evidence of anxiety or agitation.”

40. [40]
    Dr Shaikh noted that the plaintiff had not sought or received psychiatric treatment over the past four years, and considered this inconsist with the existence of psychiatric disorder: p 111. He noted as well that the plaintiff was unable to explain why he had not sought psychological or other psychiatric assistance: p 109. Dr Shaikh was not cross-examined, but it seems to me that the explanation offered by Dr Caniato for a failure to obtain treatment is quite plausible. Dealing with unpleasant matters by avoidance strikes me as a logically plausible explanation. In addition, the plaintiff has, for much of the time since the accident, not been in regular full time employment, and he has been short of funds. In these circumstances, it would have been difficult for him to afford psychological treatment. I do not find the failure of the plaintiff to seek psychiatric or psychological treatment since the accident to be at all suspicious, and it seems to me that an explanation for this failure was given, both in the opinion of Dr Caniato and in the plaintiff’s evidence. I consider that Dr Shaikh’s failure to appreciate the significance of this represents a weakness in his assessment.

41. [41]
    Overall, I did not find Dr Shaikh’s evidence helpful. It struck me as excessively judgmental in relation to the use of illegal drugs, without any particular consideration of whether since the accident the plaintiff might have been tempted to use them as a means of obtaining some relief from the continuing pain in his neck and back.^[51]  He noted that the plaintiff experienced some emotional difficulty in talking about the accident, but did not attribute any particular significance to this factor, and did not explain why significance was not to be attributed to it. Overall, I have a firm preference for the evidence of Dr Caniato.

Other evidence

42. [42]
    Evidence of the plaintiff’s manifesting symptoms of pain in the neck and upper back, and depression, was also given by his father, his current partner and his son: the current partner was not able to speak about what he was like in the years before the relevant accident.^[52]His father said that prior to the accident in August 2013 the plaintiff was pretty active, and doing a lot of fishing: p 2-18. At that time the father had a boat, and another son also had a boat, working as a commercial fisherman. That son went to America and left his equipment, with which the plaintiff had been doing some fishing. After the plaintiff recovered from his septicaemia, they began to go out fishing but the plaintiff was only able to fish for one day rather than five or seven which was more usual, because of the amount of pain that this caused to his back and neck: p 2-18. He said that the plaintiff also had difficulty after the accident in unloading the boat when they returned to port: p 2–20. He said they tried this on several occasions, but it was not working and fishing for only one day barely paid for the fuel, food and bait.

43. [43]
    The father had hoped that the plaintiff would be able to operate his own commercial fishing business, but he said the plaintiff was just not able to do it: p 2–19. His impression was that prior to the accident the plaintiff had a good marriage and a good relationship with his kids: p 2–20. He said he still regularly sees his son, but evidently this is mostly at his initiative rather than the plaintiff’s: p 2–21. This evidence was not challenged in cross-examination.

44. [44]
    The plaintiff’s son said that since the accident the plaintiff was not as outgoing as he used to be and not as active, and he would occasionally complain about being sore and how his neck was: p 73. Sometimes he noticed the plaintiff turn his whole body as opposed to turning his head: p 74. He has made to the son some complaints about problems with his neck and upper back at work, and in other contexts, but it was said that he generally tried to keep it to himself: p 74. He said that the plaintiff did not take as much interest in his boxing after the accident, and did not come along to watch anymore: p 74. He had not been fishing with his father for a very long time: p 75. He said that he would visit his father on his initiative, or occasionally they would meet somewhere: p 76. This evidence was also not challenged in cross-examination.

45. [45]
    The plaintiff’s partner said that they had been in a relationship for almost two years. She had observed what appeared to be problems with headaches, and with his having difficulty sleeping, and said that the plaintiff complained of headaches and a stiff neck and a sore upper back: p 66. She said that she does the majority of things that need doing in the house (p 65) and generally does not ask the plaintiff to do things around the house because she knows it causes him trouble: p 67. She gave some estimates of time spent doing things for him. She said that he could not walk his own dog because the dog pulls too hard on the lead: p 68. He could put things into the washing machine, but not hang them on the line: p 70. She said she was not conscious of his having any problems with his right forearm: p 70. She did confirm that the plaintiff’s bursitis in his elbows troubled him from time to time: p 71. She said that the headaches were quite troublesome and that on occasions he had even vomited from them, or has to go and lie down because of them: p 71. Her evidence was also not challenged in cross-examination.

Analysis – General Damages

46. [46]
    In the circumstances there is no reason not to accept the evidence of these witnesses and I do so. They provide confirmation that the plaintiff in fact behaves on a day to day basis in the way consistent with his having a continuing significant problem in his neck and upper back. That is inconsistent with the notion that he is just inventing complaints when speaking to doctors, and is inconsistent with the opinion of Dr Fraser, who really has no objective explanation for any significant current symptoms. On the other hand, the evidence of Dr Maguire would explain such symptoms. In these circumstances, it is appropriate for me to prefer the evidence of Dr Maguire.^[53]

47. [47]
    I therefore find that as a result of the subject accident the plaintiff has suffered an injury to his neck and upper back, a soft tissue injury to the neck and an injury to a disc in the thoracic spine. I accept Dr Maguire’s assessment that each of these is permanent and is in DRE Category II, and produces a whole-person impairment in total of 10 per cent.

48. [48]
    I acknowledge that there are some reasons to be cautious about the credibility of the plaintiff. He admitted that he had been using illegal drugs over a period of many years (p 20), and from time to time been convicted of criminal offences in connection with such use. Indeed, at the time of the trial he was on parole as a consequence of his most recent conviction.^[54]I accept that this of some relevance, though it was not shown that he has been convicted of any offences of dishonesty. When completing a job application form to work at the Meatworks he denied having any problems with his neck or back which he said was not true, but he explained that he had filled in the form in that way because he believed that if he disclosed the existence of his neck and back problems he would not be employed.^[55]Whether or not that was the case does not matter, I consider it reasonable enough for him to have that expectation, and if he wanted to get that job it would be understandable that he would complete an application form in that way. In these circumstances I do not regard this as proof that at that time he completed the form he had no neck or back problems, and in all the circumstances I do not regard it as something of real significance in relation to his credibility.

49. [49]
    I also do not think that his credibility suffers because he was not made a number of a complaints to GP’s over the years about his neck or his back. I have referred to what is disclosed in the records, and what is there, when there is some reference to the neck or back, does support the existence of this as a chronic problem. Obviously on most occasions the GP was not concerned with his neck or back, or nothing happened about them which the GP regarded as worth noting. That is understandable in circumstances where, on the assumption that his complaints were genuine, the appropriate response was simply to recommend more pain killers, physiotherapy or massage, that is, conservative management.^[56]Since this had already been recommended, there would be no reason for the GP to make a note of that. I do not regard the absence of a note of a complaint of back or neck pain as evidence of the absence of back or neck pain.

50. [50]
    There was some minor inconsistency between his evidence and that of his partner, about dog walking. It was submitted that his claim, that he had been to doctors for pain relief prescriptions after it was no longer possible to obtain pain killers containing codeine without prescription, was inconsistent with the evidence of the GP’s records, where I cannot find evidence of such visits: Exhibit 1 document 2. But these are the records of the Mundingburra Medical Centre, and he said he had been to doctors at Kirwan and the Willows: p 26. That is a different suburb of Townsville.

51. [51]
    I am conscious of the fact that if the plaintiff was becoming particularly emotional about the accident and its consequences, that might well effect the reliability of his evidence even if it does not affect his honesty. It seemed to me however that the witnesses giving evidence about his apparent neck and back pain were giving honest evidence, and that they provided confirmation of the plaintiff’s evidence in relation to this. He was most emotional about the details of the motor vehicle accident, but it was not suggested that anything he said about that accident was wrong.

52. [52]
    Reference was made to an entry in the ambulance notes following the motor cycle accident in 2012, suggesting some problem with the thoracic spine, in the form of “minor pain to lower thoracic region”.^[57]He had however other more serious and painful injuries, and if he had been involved a collision while riding a motor cycle it would be unsurprising if there were various pains in various parts of his body. He was taken to the Emergency Health Services and the notes made by a medical practitioner there did not reveal any problem with the thoracic spine. In those circumstances I do not attribute any significance to the ambulance note, and do not accept that there was any injury to the thoracic spine suffered in the accident in 2012.

53. [53]
    On the whole I do not think that there has been any substantial reason shown for rejecting the evidence of the plaintiff generally. When the defendant’s case was put to him in cross-examination, my impression was that by and large his answers were much more sensible than the various propositions being put to him.^[58]The complicating feature here is that the plaintiff’s main problem is pain. It is not so much that he is physically incapable of certain bodily movements, but rather that certain activities stir up his pain level, which naturally makes him resistant to those activities. If they are activities he has to persist with, for example because they are part of a job he wants to keep, he can and does persist with them as best he can, but is left with more pain afterwards, which diminishes his capacity to do other things, such as taking care of himself. All this is quite plausible, and is consistent with psychiatric problems, particularly stirring up pre-existing depression, something likely to diminish his capacity to cope.

54. [54]
    I accept that the plaintiff has cut back a great deal on his other activities. He has done very little recreational fishing since the accident, and has not fished at all since 2016: p 44. He was working on building or renovating a boat of his own, but had to stop that once he started at the meatworks, despite the fact that the meatworks then operated only four days per week: p 38. I was pressed with authorities^[59]about the importance of contemporaneous documents, the significance of which I acknowledge. There are decisions of mine which could also have been cited to that effect, but they are important where there is a dispute about whether, at some point in the past, what happened was X or Y. That is not the situation here. By and large the documents relied on by the defendant were documents which did not purport to be a comprehensive record of the plaintiff’s physical state. Notes by a GP of a patient’s attendance are likely to be barely adequate as a record of what prompted the particular attendance, and are not evidence of the absence of other problems. The one document actually inconsistent with the plaintiff’s case, the application for employment at the meatworks, has been explained by the plaintiff in a way I regard as quite plausible.

55. [55]
    I also accept the evidence of Dr Caniato, which seems to me to be also supported, though less distinctly, by the evidence of the lay witnesses. It also seems to me to be consistent with the plaintiff’s suffering a breakdown in what had at least seemed to be a good marriage at the time of the accident. I accept that the plaintiff suffered post-traumatic stress disorder. The plaintiff would have been in quite a frightening position at the time, being followed by a group of bikies who had not taken the opportunity to pass him when he offered it (p 10), and who then collided with the back of his vehicle when he had to break suddenly. Apart from the risk of any injury being suffered by the impact, it would be understandable that he would be in fear of suffering injury at the hands of any of the bikies who are not so disabled by the effects of the accident that they were unable to attack him.^[60]It also seems to me that the highly emotional response of the plaintiff, which a number of doctors have noted, is more readily explained by the analysis of Dr Caniato, and supports that analysis. I therefore find that the plaintiff is also suffering from post-traumatic stress disorder, and an aggravation of his pre-existing depressive disorder.

56. [56]
    I accept that the plaintiff has had other stressors in his life: the breakdown of his marriage, the earlier motorcycle accident, the earlier problems with his family and an assault on him in 2017.^[61]Nevertheless the strong emotional reaction when speaking about this motor vehicle accident supports the theory that it was particularly that accident which was the cause of his condition. The evidence does not support the view that the plaintiff would have been in the same condition anyway as a result of the other factors, or to some extent in the same condition.

57. [57]
    There is however difficulty with assessment of the psychiatric injury arising from the fact that the evidence of Dr Caniato was that the post-traumatic stress disorder was a psychiatric injury caused directly by the motor vehicle accident, whereas the aggravation of the depressive disorder was really secondary to the continuing pain in the neck and upper back: p 2-12. Under the Civil Liability Regulation 2014 the latter is to be treated as a feature of the back injury, rather than a separate psychiatric injury: Schedule 3 s 5. On the other hand, the post-traumatic stress disorder is to be assessed as a psychiatric injury under the regulation. A PIRS rating for a mental disorder has to be assessed in accordance with Schedule 5. It is apparent from that schedule that a PIRS rating undertaken in accordance with it must be a rating specifically for a mental disorder. A PIRS rating can only be accepted by a court if it is assessed as required by Schedules 5 and 6 and provided in a PIRS report as required under Schedule 5, s 12.

58. [58]
    The difficulty here is that the PIRS report I have from Dr Caniato covers two things, one of which is a mental disorder for the purposes of the Regulation and one of which is a feature of the physical injury which provoked the adverse psychological reaction, and therefore is not to be treated as a mental disorder under the Regulation. The relevant mental disorder is the post-traumatic stress disorder, but I do not have a PIRS report specific to the post-traumatic stress disorder. Dr Caniato prepared a PIRS report but in respect of the combined effect of the post-traumatic stress disorder and the aggravation of the depressive disorder: p 2-12. Neither of these was diagnosed by Dr Shaikh. It follows that the PIRS report by Dr Shaikh is not a report for a mental disorder caused by the relevant accident, and is therefore not a PIRS report which satisfies the requirements of the Regulation.

59. [59]
    The Regulation provides in s 13 that I must give greater weight to a PIRS report provided under Schedules 5 and 6 than to another medical assessment, but it does not say that a mental disorder in respect of which there is no PIRS report is to be disregarded for the purposes of assessing an ISV. In my opinion the effect of the Regulation, in a situation such as the present where there is no PIRS report just for the specific mental disorder which I find was caused, is that I have to do the best I can to assess an ISV in respect of the mental disorder without the benefit of a proper PIRS report.^[62]I do have the benefit of a PIRS report which covers both the relevant mental disorder and an additional condition, which assessed whole person impairment at 12 per cent. That percentage would place the plaintiff’s mental disorder towards the bottom of the range of a serious mental disorder, Item 11 in Schedule 4, but if the separate assessment of the post-traumatic stress disorder came in more than one per cent lower, the percentage would be towards the upper end of the range for a moderate mental disorder, Item 12, which has a PIRS range of two per cent to 10 per cent.^[63]

60. [60]
    In all the circumstances and doing the best I can, I treat the post-traumatic stress disorder as a moderate mental disorder falling within Item 12. With regard to the cervical spine, the plaintiff is suffering continuing problems and some limitation in motion, and on the whole I consider that the injury is more serious than the general description provided in the Regulation for a minor cervical spine injury Item 89. I consider that the injury to the neck falls into Item 88, moderate cervical spine injury – soft tissue injury, which has an ISV range of five to 10. The injury to the thoracic spine in my view falls within Item 93, since the injury has caused moderate permanent impairment for which there is objective evidence. The protrusion of the disc is not sufficiently serious to satisfy the requirements of Item 92 but on my assessment the consequence to the injury are more severe than those covered by Item 94. Item 93 also has an ISV range of five to 10. Both of the spinal injuries have the additional feature of the aggravation of the pre-existing major depressive disorder, which is relevant to the classification within an item in the Schedule, and is also relevant to the assessment of the appropriate ISV.

61. [61]
    Multiple injuries are to be assessed in accordance with the Regulation, Schedule 3 Sections 3 and 4. In circumstances where the relevant three items identified have the same top to the range of ISVs, in each case 10, any of them qualifies as the dominant injury. In two cases however the assessment of that injury as a separate injury would be towards the top of its range. In these circumstances, given that there are three injuries and bearing in mind the evidence generally of the level of adverse impact of the injuries on the plaintiff, the maximum dominant ISV is inadequate to reflect the level of impact. Accordingly an ISV of greater than 10 is available.

62. [62]
    I am conscious of the fact that an ISV for a multiple injury should rarely be more than 25 per cent higher than the maximum dominant ISV: Schedule 3 s 4(3)(b). There is however the consideration that in this case there are three injuries two of which would if assessed separately be towards the top of a range of ISV up to 10 for the dominant injury.^[64]I am also conscious of the fact that the plaintiff is suffering significant ongoing pain as a result of these physical injuries, and that this is a matter to which the court can have regard when assessing an ISV under Schedule 3 s 9. In the circumstances therefore I consider that it is appropriate to give more than 25 per cent of the maximum dominant ISV, and assess an ISV in the case of this plaintiff of 15. That is to be quantified by reference to Schedule 7 s 5 of the Regulation, which gives an amount of $24,300 for general damages.

Past economic loss

63. [63]
    The difficulty in assessing past economic loss is the great uncertainty about what would have happened to the plaintiff had the relevant accident not intervened. At the time of the accident he was off work generally, but was planning to pursue a career as a commercial fisherman. Presumably if the accident had not happened that is what he would have done. I have no difficulty in accepting the evidence that following the accident he was unable to pursue that career economically. The difficulty that I have is that there is no evidence before me which would enable me to assess the economic loss the plaintiff has suffered as a result. There is no evidence as to the financial position of any fishing business undertaken by the plaintiff prior to the time when he became unable to work for other reasons before the accident, and no evidence of the sort of money the plaintiff might have made, let alone would have made, if he had been able to carry out his plans for commercial fishing after the accident. He gave evidence which I am prepared to accept that if he had been able to keep alive the fish that he caught prior to landing them he would have been able to sell them for a much higher price (p 13), but I do not have any evidence of what money he would have made out of the business had this materialised,^[65]nor any evidence about the risks involved or the prospects of not doing as well as that.

64. [64]
    It is even not at all clear when the plaintiff was in a position to go back to some sort of work after the accident. The plaintiff had a somewhat varied employment prior to the accident, but presumably he could have done work like the work he ultimately obtained as a shed hand in July 2014 once he recovered from the arm infection. Perhaps he would have been working as a fisherman only because it was more remunerative for him to do so.^[66]

65. [65]
    On the basis of the Schedule in Exhibit 1 document 17 p 119, the plaintiff was earning an average of $760.00 net per week from his employment as a shed hand. If the plaintiff had been fit to return to work on 1 October 2013, it follows there was a period of about nine and a half months before the plaintiff obtained work as a shed hand. $760.00 net per week for this period comes to $31,287.00. That period however should be discounted in order to allow for the possibility that the plaintiff may not have been in work for the whole of this period, and may not have been fit to work until after 1 October 2013, or may have been for some reason unable to earn income. In the circumstances I will round this down to $25,000.00, which is a discounting factor of about 20 per cent.

66. [66]
    It was submitted for the plaintiff that his earning capacity at the date of the accident should be determined by reference to his earnings during the financial years 2011 and 2012, where the average net weekly earnings were $825.00 and $962.00 respectively. However, his average weekly earnings in 2010 were only $453.00, and his average net weekly earnings in 2013 only $290.00. I assume that this figure was affected by the septicaemia problems, and by time spent on preparing and operating the fishing business, but the difficulty is that there is no clear evidence about the periods of employment during that financial year, and any particular periods of unemployment, and whether all of that is explained by the septicaemia. Apart from that, the plaintiff obviously has other medical problems, and the existence of other medical problems interfering with his ability to earn income is a factor which has to be taken into account anyway. There is in my view no reason to focus on the better two years and ignore the years when his earnings did not perform as well. An average of the average net weekly earnings for the four years is $632.50. However, if I take the net weekly earnings for the job that he did obtain after the accident, it actually produces a higher figure per week during that period when he was actually in that position.

67. [67]
    If he was able to do that work after the accident, he would certainly have been able to do that work anyway, so his earning capacity for the post-accident period had there been no accident would have to be at least this amount. The difficulty I have is that there is no clear evidentiary basis for a conclusion that it would have been any particular higher amount. I therefore propose to use that figure. If the explanations for the reduced earnings during 2013 is that the part of this time he was fishing, the position remains that, in circumstances where I have no evidence that he actually made money during that period from fishing, it becomes difficult to know how to take this into account in assessing his earning capacity.

68. [68]
    During the 2014 financial year he did generate net income from fishing of $5,894.00: Exhibit 1 p 119. I assume that this was achieved over such a long period that it was not an economic proposition, or perhaps that in this period the physical demands were just too great for him to cope with the pain. For whatever reason, I accept that he was not able to continue to pursue the fishing business. Nevertheless there was some income that he earnt from it, and it must be brought to account as a deduction from past economic loss.

69. [69]
    The plaintiff left his employment in May 2015, and was not employed again until January 2016. For part of this time he was unable to work anyway because of incidental ill health, during the months of September, October and November 2015.^[67]The evidence is that the plaintiff left his work as a shed hand because of the breakdown in the relationship with his wife, which the plaintiff was inclined to attribute to the after effects of his injury. That seems plausible, though there is no clear independent evidence to confirm this. Presumably his wife was not prepared to come to court to support such a claim. In my opinion the correct approach to a situation like this is to treat what would have had happened had the accident not intervened as a past hypothetical fact, and make some allowance for the possibility that the marriage may have broken down anyway.^[68]He did not work from 7 May 2015 to 21 January 2016, a period of about 37 weeks, which at $760.00 net per week comes to $28,120.00, but I will discount that net figure by 40 per cent, to take into account the possibility of the marriage might have failed anyway and the other matters referred to earlier, to the extent that they remained relevant. That comes to $16,872.00.

70. [70]
    The next employment lasted until 8 September 2016 (p 2-30) but during this period he was earning $841.00 net per week on average.^[69]The plaintiff was then essentially unemployed for about 12 months before starting work at the meatworks. His net pay there has varied somewhat from week to week, no doubt depending on the actual hours worked, but for practical purposes I am prepared to accept that there was no economic loss shown while he worked at the meatworks. There was no particular explanation for this period of unemployment other than the difficulties caused by the accident, but obviously there should be a more substantial than usual discounting because of the possibility that the plaintiff might otherwise been unemployed anyway for one reason or another. Because of this, for past economic loss in respect of the period prior to obtaining work at the meatworks, I allow $33,000.00.

71. [71]
    There is also the consideration that effectively between the end of November and the beginning of April the plaintiff was out of work at the meatworks because of the seasonal nature of the work there. If the plaintiff had not been suffering from the consequences of the accident he might well have obtained other employment during this period, but I do not think that it would be appropriate simply to assume that but for the accident he would have been earning $800.00 net per week for the whole of that period. On the whole I will allow $5,200.00 for past economic loss for this period. This produces a total for past economic loss of $74,178^[70] to which should be added on allowance for past superannuation at the rate of 9.5 per cent, a figure of $7,074.

72. [72]
    The plaintiff claimed that but for the accident he had a capacity to earn at the rate of at least $900.00 net per week, but apart from a mere assertion in the plaintiff’s quantum statement there is no evidence to justify that figure as the value of the plaintiff’s earning capacity had the accident not intervened. The evidentiary basis for the claim made in the plaintiff’s submissions has therefore simply not been proved. On the other hand, I do not accept the defendant’s argument that in effect the plaintiff has not suffered any loss of earning capacity because of the consequences of the accident. This submission was based largely on the proposition that the plaintiff has suffered neither lasting adverse physical consequences nor any adverse psychiatric consequences, consistent with the evidence of the defendant’s experts, which I have rejected. I am satisfied that the plaintiff has suffered some real past economic loss. There are difficulties in assessing that, largely because of a lack of appropriate evidence, which has required a conservative approach to assessment. Doing the best I can on the evidence available, that is my assessment of past economic loss.

Future economic loss

73. [73]
    With regard to future economic loss, the position here is that the imponderables about what would have happened to the plaintiff had the accident not intervened become more complicated with the passage of time. He might have been a successful fisherman and made a lot of money out of that, though there is no evidence before me of how much a successful fisherman would make. He may have been a fisherman who barely scraped a living from the sea, and carried on because he enjoyed the lifestyle, and because fishing was in his blood. He may have been somewhere in between. The fishing business may have failed anyway, because of his other physical problems and illnesses, or simply because of general economic conditions in the fishing industry, and the plaintiff may have done something else instead. If so, he may have found other employment which was better paid than the positions that he did find since the accident, and which offered more stable employment with prospects of advancement, or he may have continued in much the same pattern as before the accident, where he was working from time to time in different jobs, with periods of unemployment or periods of inability to work for other reasons, and with some jobs paying better than others.

74. [74]
    He claimed that he intended to work until 70, but he is only 41 now^[71]and his enthusiasm for work may abate as he becomes older, depending to some extent no doubt on how much he enjoyed the particular job he was doing at the time. I have no evidence about how common it is for a fisherman to work until 70. The true position with future economic loss is that there is a great deal of uncertainty about the plaintiff’s prospects for the future even if the accident had not intervened.

75. [75]
    The other difficulty is in knowing what is going to happen to the plaintiff now. He is currently working as a slicer at the meatworks, but I accept that he is struggling in that job.^[72]That is supported by the fact that both Doctor Maguire and Mr Scalia, the occupational therapist, consider that this work is really beyond the capacity of the plaintiff.^[73]In those circumstances, I think it very unlikely that he will be able to continue to do this work until 70, or even 65. He may have been helped by the fact that until recently the job was not five days a week, and that there are a few months each year when he can rest up. It does not appear that any other ailments have caused him problems during the time he has been working at the meatworks, but if such a situation arises, a combination of the neck and back and any other medical problems, for example, his elbow bursitis, could force him to leave that job. Once he left, it might be difficult to get back into it again once the other condition had settled down.

76. [76]
    There is also the consideration that work at the meatworks obviously comes and goes, depending on the vagaries of that industry, so there is a good deal of uncertainty on various bases about his prospects in the current job. On the whole, I doubt if he will be working in the meatworks all that long, but he may well be able to carry on, particularly if he is able to continue to obtain what on the evidence is a high level of support at home, and indeed generally when he is not working. Even then, I will be surprised if he is still in that job in ten years’ time.

77. [77]
    If he leaves that job of course he may well be able to obtain some other employment which is less strenuous, although probably not paying as well. The difficulty, as pointed out in the experts’ reports, is that the plaintiff’s experience has largely been in various forms of manual labour, and it is likely that he will have difficulty in obtaining any other form of work.

78. [78]
    Mr Costello said that there are a range of jobs at the meatworks, and that if a person has difficulty coping in a particular position, they may be able to be moved into a different job with which they can cope. The difficulty with that, however, is that my impression from the evidence is that working as a slicer is a relatively light job within the meatworks. The main restriction caused to the plaintiff arises from pain from the neck and upper back, which seems to be aggravated by almost any form of activity. In these circumstances, if his ability to cope with the pain is diminished for any reason, he is unlikely to be able to work in any position at the meatworks.

79. [79]
    The plaintiff submitted that the 2011 and 2012 financial years should be taken as the indication of the regular earning capacity for the plaintiff for the future, absent the accident. I think this is too optimistic, for the reasons given in relation to past economic loss, and consider that a more realistic view for the future for the plaintiff is a figure of $800 net per week for his hypothetical earning capacity, about half way between the average net weekly earnings during the two periods of employment with Liddle & Sons Pty Ltd. I consider that a more realistic prospect for the balance of the plaintiff’s working life is 25 years, absent the accident. So long as the plaintiff is able to continue to work at the meatworks, he will probably not be suffering much actual economic loss, but I do not consider that that is a realistic prospect for anything like the balance of his working life. When he is no longer able to cope with work at the meatworks, he will probably have difficulty securing employment and it is likely to be less remunerative, and those difficulties can only increase as he ages.

80. [80]
    My assessment of the position is essentially that as the plaintiff ages, his earning capacity is going to be progressively more and more lost. Because loss of future earning capacity has to be discounted to a present value however, producing a discount of a tapered increasing proportionate loss of earning capacity over a period of 25 years is beyond my mathematical capacity.^[74]What I propose to do therefore is to proceed on the basis that a reasonable approximation can be achieved by treating the plaintiff as having lost one third of his hypothetical non-accident earning capacity over the next ten years, and two thirds of his hypothetical non-accident earning capacity over the following 15 years. The multiplier on the 5% tables for ten years is 413, so the present value of a loss of $800 per week for that period is $330,400, one third is $110,133 which can be discounted for the ordinary vicissitudes of life to $100,000.^[75]For the next 15 years, the multiplier on the 5% tables is 555, so the amount required for that period at the beginning of the period is $444,000, of which two thirds is $296,000. The present value of that payment in 10 year’s time on the 5% tables comes to $181,714.40.^[76]  Again this figure may be discounted for the ordinary vicissitudes of life to $165,000. That produces a total figure for future economic loss of $265,000.^[77]

81. [81]
    There should also be an allowance for future loss of superannuation benefits, which must be quantified on the basis laid down in the Civil Liability Act 2003 s 56. The Court of Appeal has approved a percentage of 11.33 per cent for future loss of superannuation on this basis,^[78]and I therefore allow $30,024.00 for this component.

Gratuitous care

82. [82]
    Awards under this heading are regulated by the Civil Liability Act s 59. Before damages can be awarded it is necessary to show the services are necessary, that the need for the services arises solely out of the injury in relation to which damages are awarded, and that the services are provided or are to be provided for at least six hours per week and for at least six months: s 59(1). As to whether the services are necessary, this depends on an objective test by reference to the circumstance of the injured person. It was submitted for the defendant that there was evidence that the plaintiff was able to take care of himself, and for example he had lived on his own for a time during which he was not receiving any assistance and was apparently able to cope reasonably well. In those circumstances it was submitted that the plaintiff had failed to show that gratuitous services were necessary.

83. [83]
    The complicating feature here however is that it is appropriate to take into account the circumstances of the individual plaintiff, particularly the injuries suffered by the plaintiff and the way they affect that individual. The plaintiff’s main difficulty is with increasing pain, which aggravates his pre-existing chronic depression. He said that activity stirs up the pain in his neck and back, and conversely after he has had to be active for a time, so that his neck and back have been stirred up, he needs the opportunity to rest. He said for example that after returning from a day’s work at the meatworks he really can only lie down: p 33. The position is not that he is physically incapable of looking after himself, but that doing the things that he needs to do in order to look after himself is productive of pain. If he already has pain in his neck and back because of other matters, such as having done a day’s work, it seems to me that for practical purposes it is reasonable for the plaintiff not also to undertake domestic tasks, and in that situation in my opinion gratuitous services become necessary for the purposes of s 59.

84. [84]
    On the other hand, if he is not working, it is easier for him to put up with the pain generated by looking after himself (p 33) and it is understandable that if he is living alone and has no access to assistance he will cope as best he can in the circumstances. That is not inconsistence with the proposition that the provision of domestic services are necessary, particularly in circumstances where the plaintiff is working effectively full hours at a physically demanding job.

85. [85]
    The requirement that the need for the services arise solely out of the injury has been interpreted as meaning that, in circumstances where a person has some other factor apart from the relevant injury which is contributing to a post-accident need for services, that all that is recoverable is the cost of the additional services the need for which is attributable to the relevant injury. That was established by the decision of the New South Wales Court of Appeal in Woolworths Ltd v Lawlor [2004] NSWCA 209 at [28], [29], a decision endorsed and applied the Queensland Court of Appeal in The Thistle Company of Australia Pty Ltd v Bretz [2018] QCA 6 at [43], [44]. In that case, as in the present, the plaintiff had no actual need for gratuitous services prior to the relevant accident, but the trial judge took into account the fact that the plaintiff had other conditions which were likely to deteriorate with time and would have given rise to a need for such services in the future, including the ordinary processes of aging. The Court of Appeal approved of this approach.

86. [86]
    In effect the provision has been interpreted as meaning that damages can only be awarded under this section in respect of a need for services so far as it arises out of the relevant injury, excluding services the need for which arises on some other basis.^[79]The position here is that any need for services arises ordinarily and predominantly from the relevant accident, but it is possible that from time to time the plaintiff may suffer from other conditions, such as septicaemia or bursitis, which would give rise to a need for some services if they were the only problems the plaintiff had at that time. Some allowance for that can be made by a process of discounting.

87. [87]
    Section 59(2) provides that damages are not to be awarded for gratuitous services if gratuitous services of the same kind were being provided for the injured person before the breach of duty happened. In the present case at that time the plaintiff was married and presumably in a normal household situation with his wife, though there is no particular evidence about the situation at that stage as between them with regard to the disposition of household services. At the time of the accident they may have been some departure from the ordinary pattern anyway because of the plaintiff’s septicaemia. After the injury, there was a period when I expect domestic services were provided by the wife prior to the breakdown in the marriage, but there is no evidence providing any detail about this, and therefore no evidence capable of showing that the six hour per week threshold was being met at any part of this time. While the plaintiff was living alone, he was not receiving domestic services. It was therefore only during the time when he had established a new relationship that a situation arose where he was receiving domestic services. That relationship dated from 2016, and covered both a period when the plaintiff was unemployed, and a period while he was working at the meatworks.

88. [88]
    With regard to s 59(2), it was submitted for the defendant that a good deal of what the plaintiff’s partner did for him was simply the sort of normal give and take within a domestic relationship of this kind, and that to a large extent the services provided were therefore either not necessary or were excluded under sub-section (2). The matter is complicated by the fact that the domestic relationship the plaintiff is in now is different from the one he was in before the accident, but I assume the plaintiff at that time obtained the benefit of domestic services in the course of the ordinary give and take of the relationship he was then in. When applying s 59 it is necessary to bear in mind that it gives effect to the basic approach of Deane and Dawson JJ in Van Gervan v Fenton (1992) 175 CLR 327 at 344. Nevertheless, their Honours went on to add an important qualification:

“The qualification is that such services will be taken out of the area of the ordinary give and take of marriage to the extent that the injuries to the wife or husband preclude her or him from providing any countervailing services. To that extent, the continuing gratuitous services provided by the spouse assume a different character and should be treated as additional services which have been or will be provided by that spouse to look after the accident-caused needs of the injured plaintiff.”

89. [89]
    This approach was adopted by the New South Wales Court of Appeal in Mortimer v Burgess [1997] 25 MVR 463 in dealing with a similar provision then contained in the New South Wales Motor Accidents Act 1988 s 72.^[80]  However, it is not clear that the same approach has been adopted in Queensland. In Shaw v Menzies [2011] QCA 197 the court said at [72], by reference to s 59(2), that if for example a spouse solely did the meal preparation before the plaintiff was injured there could be no claim for that service after the injury. This produces the somewhat anomalous situation that, in the circumstances identified in Van Gervan, where the plaintiff is as a result of his injury no longer able to contribute to his share of the give and take in the domestic relationship, the services provided by the spouse are compensable only to the extent that they replace things formerly done by the plaintiff.

90. [90]
    In this case on the evidence while the plaintiff is working at the meatworks his partner essentially does everything by way of provision of domestic services for him (and the rest of the household). Those services can be seen as the gratuitous provision of domestic service to be taken into account for the purposes of s 59, notwithstanding the terms of sub-section (2), to the extent that they replace what would otherwise have been his contribution to the domestic services of which he obtained the benefit.

91. [91]
    The evidence in relation to this issue was contained mainly in the report of Mr Scalia, and the evidence of the plaintiff’s partner. Mr Scalia assessed a large number of tasks and other activities, and identified there a number of areas where the plaintiff had reduced capacity, such as the heavier tasks associated with grocery shopping, extended standing if preparing a meal, heavy domestic cleaning tasks, hanging out laundry, walking his dog, washing the car, mowing the lawn and with heavier home maintenance. Mr Scalia quantified a need for eight hours per week of services, apart from a period of twelve hours per annum for heavier home maintenance. Some of these figures appear to have been prepared on a fairly modest basis, such as one hour per week for meal preparation, which no doubt is a small fraction of the total time spent by his partner on that overall. That suggests some apportionment on the basis of the replacement of work which the plaintiff would otherwise have done himself. My impression of the evidence however is that in fact his partner does a lot more for him on a regular basis, so this can be seen as services replacing what he previously contributed.

92. [92]
    Mr Scalia was cross-examined about this, but not about the quantification of the amount of assistance the plaintiff would have required. Rather the approach was typified by a question asked at p 82 line 39, which proposed that because the plaintiff was carrying out work as a meat slicer which was not light work, he would be able to carry out domestic duties such as cleaning or preparing a meal. This overlooks the fact that on the evidence working as a meat slicer stirs up the plaintiff’s pain, and it is the pain which provides the practical limitation to his doing the heavier domestic tasks such as cleaning or preparing a meal. He would be better able to look after himself in those areas if he were not working. In my opinion it is precisely because the plaintiff is doing heavy work, which is probably really beyond him and with which he struggles, that there is a need, while he is doing that work, for this level of domestic assistance. In any event, Mr Scalia did not resile from his evidence under cross-examination, and his evidence was not contradicted by another occupational therapist or other suitable expert.^[81]

93. [93]
    The plaintiff’s current partner gave evidence about the extent to which she did the domestic duties in the home, though the evidence was all given by reference to the present situation, and I take it that she was describing the situation while the plaintiff was engaged in his work at the meatworks. She said that she really did everything that needed to be done around the home, and that with him working with his injury it was just easier for her to do it: p 65. That shows that she is describing the situation during the period when the plaintiff was working, rather than the period when he was unemployed or the period during the seasonal stand down. She said that she does the lawn mowing, cleaning up, picking things up and clearing things away and doing the dishes, and walking the dogs including the plaintiff’s dog: p 67, 68. She also does the laundry and cleaning. She said that she probably spent two to three hours a week looking after the plaintiff’s dog, and one to two hours a week doing the plaintiff’s laundry, two hours a week doing meal preparation that otherwise she would expect the plaintiff to assist with, and a couple of hours a week with general duties around the house: p 68. This gives a total of seven to nine hours per week, overall consistent with Mr Scalia’s evidence. She was cross-examined to some extent about whether there were certain generally fairly trivial things that the plaintiff could do, but was not challenged about her time estimates.

94. [94]
    In those circumstances I accept that while the plaintiff is working at the meatworks he has a need for gratuitous services for at least six hours per week. That applied for a period of two and a half months from September to December 2017 while he was working, and would also have applied from the period after 8 April this year, which by the time of trial was a further two and a half months. As at the date of trial therefore the threshold period of six months had not been reached. It was submitted for the plaintiff that that period of six months can be achieved by adding together separate periods of less than six months, on the basis of the decision of the Court of Appeal in Kriz v King [2007] 1 Qd R 327. What was decided in that case was that once the six month threshold had been reached gratuitous services thereafter were still compensable even if the care required fell below six hours per week. This was because s 59 should be regarded as limiting the common law right to damages for gratuitous services only if it did so clearly and unambiguously.

95. [95]
    In circumstances where the statute does not specify that the second limitation is that the services be provided for a continuous period of six months, adopting the approach of the Court of Appeal would produce the outcome that it is not necessary for there to be a continuous period of six months, so long as the court is satisfied that there has been or will be a total period of at least six months during which services of at least six hours per week have been or will be provided. Although the plaintiff said that he was struggling to do the work of a meat slicer, the plaintiff’s evidence did not suggest any intention to abandon work in the near or immediate future, and no application has been made to reopen the plaintiff’s case on the basis that the situation has changed because the plaintiff has ceased work at the meatworks. I assume that the plaintiff has continued to work at the meatworks, so the period of six months has been achieved since the date of trial. In those circumstances, the plaintiff has overcome the restrictions to an award of damages for gratuitous services contained in s 59.

96. [96]
    Mr Scalia’s figures for the commercial cost of care were generally about $60.00 per hour, except for yard maintenance, $50 per hour, and home maintenance where it became $80.00 per hour: Exhibit 6 p 22.^[82]I accept that while at the meatworks the plaintiff requires eight hours per week of services, which comes to $460 per week. In the period of five months up to trial and two and a half months since therefore I allow $14,720.00 for past gratuitous care. There was no evidence of any other problems not related to this accident which contributed to that need for services during that period.

97. [97]
    The plaintiff advanced a claim for domestic care and assistance in the past apparently in respect of the whole periods since the date of the accident, but I am not persuaded that the plaintiff has shown that there was a need for such service as a result of the accident, and that such services were actually being provided, to the extent necessary to cross the threshold except during the period when the plaintiff was working at the meatworks. There is simply no reliable evidence as to the extent to which the plaintiff was being provided with gratuitous services after the accident until his marriage broke up, nor was it shown that they were provided to a greater extent than had been the case prior to the accident. At best domestic services could only be claimed in respect of the period after the establishment of his current relationship, but even then the evidence only shows that the plaintiff was essentially unable to do anything useful around the house after he began to work at the meatworks. In those circumstances a claim for gratuitous services prior to the time when he started that work, or indeed during the seasonal stand down, has not been established.

98. [98]
    With regard to a future need of domestic services, it seems to me that this is only likely to arise to that extent in circumstances when the plaintiff is continuing to work at the meatworks, or if he were in employment which was placing as greater strain on his neck and back as does the meatworks. If the situation arose where the plaintiff decided that he could no longer cope with the pain and left the meatworks job because of that, I think it unlikely that he would obtain other employment which was as physically demanding and as painful; he would be looking for a less physically demanding job with which he could cope. Allowance for that has been made in future economic loss. On the other hand, if he simply stopped work altogether, or if he obtained a less demanding job, he would not suffer the same work related aggravation of his pain, which essentially creates the necessity for domestic services, except perhaps for the heavier home maintenance. The practical effect of that analysis is that in my view the need for this level of future domestic services is only going to apply during the period while the plaintiff remains in employment at the meatworks, or is doing equally demanding work.

99. [99]
    I accept that the plaintiff is under an economic imperative to work, and would like to work so long as he can cope with it, and it appears that he will be able to continue to work there so long as he is able to cope, though given the vagaries of that industry that it is always possible that situation will change.^[83]The difficulty with the meatworks job is that it seems to me that it is either full on or no job; there was no evidence from anybody to suggest that it was possible to work on a part time or casual basis at the meatworks. As with any future fact of course the likely continuation of the plaintiff’s employment at the meatworks has to be assessed by reference to the probabilities, in an area where the future seems on the evidence particularly difficult to predict. Doing the best I can, I think it is reasonable to assess future care on the assumption that this work will extend over a period of four years. The 5 per cent multiplier for four years is 190, so future care in respect of the period when he is working at the meatworks comes to $87,400.00. This should be discounted to allow for the possibility that for some of that period he will be also suffering from other non-accident ailments, and for the ordinary vicissitudes of life, to $80,000.

100. [100]
     Once the plaintiff has crossed the s 59 threshold, however, any amount of gratuitous care becomes compensable.^[84]  There are two other aspects to be considered. One is the possibility that in the future the plaintiff will be doing some other, less demanding job, something I expect is quite possible, given his resilience in finding employment in the past, and taken into account in future economic loss calculations. In that situation, he will probably need some care, but not as much. No doubt it will depend on the intensity of that work, such as whether it is full time or part time, and just how strenuous it is. There are too many unknowns to make any attempt to calculate this meaningful, and I propose simply to allow a further lump sum of $50,000 to cover this aspect of future care.

101. [101]
     The second is that there will be some things, such as the heavier home maintenance work, which is likely to be beyond the plaintiff anyway, even if he is not working at all. Some allowance should be made for this, although not for the rest of the plaintiff’s life, as it is reasonable to expect that his ability to do such work would decline anyway as he aged. Mr Scalia’s report included provision of 12 hours per year for home maintenance, about $18.50 per week, and I assume this will be needed anyway. Allowing a period of thirty years, with a multiplier of 822, this comes to $15,207, but this should be discounted to allow for other ailments and the vicissitudes of life, and I allow $12,000 for this. Hence future care comes to a total of $142,000.^[85]

102. [102]
     Special damages were agreed between the parties in the sum of $5,000.00. Of this all but $709.15 represents out of pocket costs, on which interest is allowable in accordance with s 60(3) of the Act. I allow interest for 5.1 years on $4,290.85 at 2.66%, divided by 2, $291.00.

103. [103]
     The plaintiff also claimed for various future expenses. There was a claim for three GP attendances per annum, but in the light of my earlier analysis, this seems excessive. There is little a GP can do for the neck and back, although there may be a need at time for medical for his psychological problems,^[86]and for prescription painkillers, although the need for these is probably linked to the heavy work at the meatworks. The latter could probably usually be covered by other GP attendances. I will allow one visit per year at $70, $1,000 after discounting. There was a claim for future pharmaceutical expenses of $26.50 per week. He has used painkillers regularly, at least when working, and that is likely to continue, but the need for most of this medication is probably related to his level of employment. Exhibit 7 refers to pain relief, antidepressants and rubbing creams at a cost of about $30 per week, plus $3 per week for unspecified others. I will allow $30 per week for 4 years, $5,700, discounted to $5,000 on much the same basis as future care, and a further lump sum of $3,000 to cover a reduced level of medication during periods of less demanding work, and any other future medication.

104. [104]
     Dr Caniato did not say how long the psychiatric and psychological treatment was expected to last, and it was not clear that the plaintiff was willing to engage in treatment, although he may change his mind. On the whole, all I can do is allow a lump sum of $15,000, which is to cover such treatment for a few years, discounted to allow for the possibility that the plaintiff will not undertake it. There are likely to be massage costs as well, during the period the plaintiff is working at the meatworks at least, essentially as a means of helping him manage the pain, and for this I allow $2,500. I will not allow the cost of a low clothesline since that is effectively covered by the allowance for future care, and there is no proper justification on the evidence for the cost of vocational counselling, retraining, rehabilitation or travelling expenses. Future care costs therefore come to $26,500.

105. [105]
     Interest on past economic loss is allowable in accordance with s 60(3) of the Act, subject to a deduction in respect of Centrelink benefits which has been received (but which are refundable). It was conceded for the plaintiff that this was an amount of $9,993.54, and deducting that sum interest is payable on $64,184.46 which calculated in accordance with the statute comes to $4,354.00.

106. [106]
     My assessment of damages in summary is:

107. [107]
     There will therefore be judgment that the second defendant pay the plaintiff $593,441 including $4,654 by way of interest. I assume costs will follow the event, but will invite submissions when judgment is delivered.