Successful Workplace Injury Claim Against Employer in NSW Supreme Court

The claimant successfully sued the defendant for damages resulting from a workplace injury caused by a metal roller shutter door. The court found the defendant liable under the Civil Liability Act 2002.

New South Wales Supreme Court

CITATION : [NAME] v [COMPANY] [2010] NSWSC 372 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 12-16 Oct; 4 Nov 2010

JUDGMENT DATE : 30 April 2010

JUDGMENT OF : Fullerton J

DECISION : 1. Judgment in favour of the plaintiff in the amount of $ 2,268,137.86. 2. The second defendant to pay the [NAME] costs as assessed or agreed.

CATCHWORDS : TORTS - negligence - liability admitted by defendants - personal injury - plaintiff struck on head by metal roller shutter door - fibromyalgia - causation - damages

LEGISLATION CITED : Civil Liability Act 2002

CATEGORY : Principal judgment

[NAME] v Al [NAME] [2009] NSWCA 333 Australian Iron and Steel Ltd v Connell (1959) 102 CLR 522 [COMPANY] v [NAME] [1970] 2 NSWR 238 [NAME] v [NAME] of Australia Ltd [1975] 2 NSWLR 190 [NAME] v Percy [2003] HCA 22; 214 CLR 118 M and EM Hull Pty Ltd v Thompson [2001] NSWCA 359 CASES CITED : Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 Penrith City Council v Parks [2004] NSWCA 201 Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 [COMPANY] v [NAME]; James Hardie & Coy Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262 State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536 [NAME] of Australia Ltd v Fernandez (1976) 10 ALR 303 [NAME] v State of New South Wales [2009] NSWCA 99

[NAME] (Plaintiff) PARTIES : [COMPANY] (First defendant) Sydney Night Patrol & [COMPANY] (Second defendant)

FILE NUMBER(S) : SC 2008/20160

COUNSEL : [redacted] R [NAME] QC/B O'Donnell (Defendants)

SOLICITORS : [redacted] [NAME] (Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

FULLERTON J

30 APRIL 2010

2008/20160 [NAME] v [NAME] & ANOR

JUDGMENT 1 HER HONOUR: By statement of claim dated 5 May 2008 the plaintiff seeks an award of damages to compensate him for an injury he suffered on 10 July 2006 when a metal roller shutter door, located at a security inspection point at Terminal 3 at [NAME], unravelled and struck him on the head as he was being processed to board a flight to Brisbane for work-related purposes.

2 The first defendant is the owner and occupier of the premises where the plaintiff was injured. The second defendant is responsible for the management and control of those premises.

3 By letter dated 11 June 2009 both defendants admitted liability in negligence for failing to ensure that the roller shutter door was properly secured (or failing to implement any adequate system to secure the shutter door in the overhead housing) leaving issues of causation and quantum for determination in the proceedings. In final submissions it was agreed that such damages as are awarded in the [NAME] favour will be ordered against the second defendant only and that the second defendant would also assume liability for the [NAME] costs. The [NAME] counsel undertook to file a notice of discontinuance against the first defendant. The notice was filed in the Registry on 19 February 2010. The balance of the judgment will refer to "the defendant" in the singular.

The [NAME] education and work history prior to July 2006 4 The plaintiff was born on [DATE]. At the time of the proceedings he was almost 33. He married in 2003. His only child was born in [DATE]. 5 He was educated at [COMPANY] but did not complete his secondary schooling at that school electing to transfer to TAFE in his final year to undertake two years of full-time study in computer technology and network support. 6 His father described him as an active and industrious adolescent who assisted in the family business from a [NAME] age. The plaintiff gave evidence that prior to the injury he played squash and tennis regularly. He also enjoyed motorcycle riding. He owned a 1000cc sport motorcycle and a sports car. 7 In March 1988, after completing his TAFE course, the plaintiff commenced employment with [NAME] as a business development manager before taking up a position in March 1999 as a software [NAME] specialist with [NAME], a subsidiary of [COMPANY]. He was employed by that corporation at the date of the injury. He met his wife soon after he joined the company. She held the position of New Accounts Coordinator. She described him in her evidence as a confident and vibrant person, who was well-liked and easy going. She described their relationship as sound from the outset and that they enjoyed an active social life and an active and regular sex life. They enjoyed riding motorcycles together. They did not live together until they were married in 2003. The plaintiff remained in the employ of [NAME] on reduced hours following the accident until his redundancy in April 2007. 8 [NAME] is a corporation that markets a range of computer software products to corporate clients who resell the product to end users. The [NAME] primary responsibility from the time of his engagement until May 2006 was as a specialist consultant to resellers of the specialist software. His responsibilities changed over the course of his employment from the provision of telephone [NAME] advice to what was described in the evidence as an "outbound role" where he worked on site with resellers of the software providing training and advice to end users. In the months leading up to July 2006, the [NAME] role within the company changed in circumstances where, in the view of senior management, he was failing to achieve his [NAME] quota levels and where his work performance generally was regarded as inconsistent. These concerns were formally communicated to the plaintiff in what were described as "warning letters" in March and May 2006 and in a meeting with the National Senior Manager in April 2006. 9 Notwithstanding the issue of the warning letters, in May 2006 the plaintiff was offered a position as salesman for a new product portfolio that had been recently acquired by the company. He confirmed his acceptance of the position in writing on 18 May 2006. The plaintiff described the new position as a "side step" as distinct from a promotion, but a changed role he undertook willingly, regarding it as part of a new direction for the company and a way of securing his employment prospects in the company in the future. In the month prior to his travelling to Brisbane he underwent training for two weeks in the United States to equip him for the new role. His flight to Brisbane was for the sole purpose of participating in a seminar, also as part of his new role within the company. 10 There was no challenge to the evidence of the [NAME] work colleagues as to his capacity for hard work and his commitment to achieving high standards of performance and output in a highly competitive industry.

The immediate sequelae of the incident at Sydney Airport on 10 July 2006

11 It was either common ground at the hearing, or not seriously challenged, that when he was struck by the roller shutter door the plaintiff did not fall to the ground (as distinct from collapsing to his knees) or lose consciousness (as distinct from feeling dazed with his vision blacking out for a few seconds). After he was spoken to by security personnel and by [NAME], a representative of the first defendant, and after purchasing some Nurofen for a headache, he considered himself well enough to board the flight to Brisbane. However, he gave evidence that during the flight he felt as if his neck and back had seized up to the extent that within hours of his arrival in Brisbane he was unable to participate actively in the seminar or the scheduled work-related activities because of worsening pain.

12 He presented at the Mater Hospital in Brisbane on the morning of 11 July 2006, and again the following day, complaining of vomiting, dizziness, bleeding from the left ear, stiffness and soreness in the neck and back, and tenderness in the mid cervical spine. Investigations of his head and spine by CT scan were performed which revealed no abnormality. There was no obvious explanation for his claim that there was bleeding from his ear and no bruising was detected on his head or forehead. He was prescribed Stemetil for nausea and dizziness and Panadeine Forte for neck pain. 13 On his return to Sydney on 12 July 2006 the plaintiff was treated by his general practitioner, [NAME], for stiffness in the neck and lower back. He was prescribed analgesics for pain relief and referred for physiotherapy. 14 He attended on [NAME], physiotherapist, on 14 and 17 July 2006 before discontinuing the therapy because of what he described in his evidence as rough treatment that seemed to aggravate the pain despite it improving his mobility. 15 He was certified by [NAME] as unfit for work due to what [NAME] nominated on the Workcover documentation dated 24 July 2006 as "soft tissue injury to neck, upper and lower back, headaches, dizziness". 16 The plaintiff took his scheduled four weeks annual leave from 29 July 2006 during which time he visited his family in England and Turkey. Whilst travelling by road and by air he experienced pain in his shoulders and upper back and a tingling effect in his left leg. He felt his condition worsening in the second phase of the holiday which interfered with his ability to socialise and participate in family events. 17 On his return to Australia at the end of August 2006, but before returning to work, he again consulted with [NAME] because of continuing pain. [NAME] arranged for him to attend a physiotherapist closer to his work in Artarmon. He attended the physiotherapist but discontinued the therapy when, after the fifth day back at work, the pain in his head, neck and back became intolerable and he was forced to retire to home-based work on reduced hours. 18 From 7 September 2007 until 12 December 2006 the plaintiff was certified by [NAME] as fit to work from home but on reduced hours. The Workcover documentation completed by [NAME] each successive fortnight from that date described the injury as a "soft tissue injury to neck, upper and lower back, headaches, dizziness". The accuracy and reliability of [NAME] diagnosis of a soft tissue injury was an issue of some controversy in the proceedings. 19 From December 2006 until the [NAME] redundancy in April 2007 [NAME], general practitioner, certified the plaintiff as unfit for full-time work due to chronic neck and back disability. 20 As at 11 January 2006 it was proposed that the plaintiff convert his home-based working hours of three hours per day, five days per week to two hours each Monday, Wednesday and Friday at his [NAME] contingent at that time upon being provided with a work environment that conformed with Occupational Health and Safety standards. This did not eventuate before a meeting was scheduled in early April which resulted in the plaintiff accepting a redundancy. He did however return to work, on reduced hours in a markedly junior role, before consulting with [NAME], a rheumatologist, in February 2007 and being diagnosed with fibromyalgia. It would appear, however, that the [NAME] employer was not genuinely supportive of providing the plaintiff with ongoing employment and that the company structured their dealings with the plaintiff upon his return to work with a view to him accepting a redundancy.

A summary of the medical treatment the plaintiff has received since the date of injury 21 Between the first CT scan performed at the Mater Hospital in Brisbane on 11 July 2006 and an MRI of his cervical spine in November 2007, a comprehensive range of radiological investigations, MRIs and other scans were undertaken on the recommendation of various treating specialists with a view to identifying the cause and/or the source of the [NAME] pain and an explanation for his compromised function. None revealed any abnormality. They are itemised as follows: On 11 July 2006 a cervical spine X-ray was performed at the Mater Hospital. The report indicated no abnormality.

On 12 July 2006 a CT scan of the brain and cervical spine was performed at the Mater Hospital. These were normal.

On 23 July 2006 an X-ray of the lumbosacral spine was performed at [NAME] request. The scan was normal.

On 25 September 2006 a CT scan of the lumbosacral spine was performed at [NAME] request. This scan was also normal.

On 10 October 2006 an MRI scan of the brain and of the entire spine was performed at the request of [NAME], an orthopaedic surgeon. The MRI scans revealed no abnormalities in either the spinal cord or vertebral column.

On 14 December 2006 a CT scan of the neck, chest, abdomen and pelvis was performed at the request of [NAME], Consultant Rheumatologist. The scans were normal.

On 15 November 2006 a nuclear medicine scan was carried out at the request of [NAME]. Aside from mild uptake in the left ankle joint consistent with previous trauma, the study was normal. 22 In September 2006 [NAME] referred the plaintiff to [NAME], an orthopaedic surgeon, who referred him to [NAME], a pain specialist within the Department of Orthopaedic Surgery at [COMPANY], and [NAME], a clinical psychologist. Since that time he has consulted with and been treated by an array of specialists in rheumatology, orthopaedics, neurology and psychiatry. He has also been prescribed a variety of medications of increasing strength and intensity to address his complaint of chronic pain and to enhance his mobility and function. He has also participated in pain management programs under the direction of [NAME] and orthopaedic therapy under [NAME] without any sustained improvement in his condition. 23 Despite interventions of various kinds and a prescribed course of opiate based medication and other medications, the [NAME] report of generalised pain has progressively intensified and his level of physiological and psychological functioning has deteriorated. He now uses a walking stick, walks with a guarded gait and has had occasion to use a wheelchair. He has not worked since his redundancy in April 2007. The [NAME] primary position on causation and damages in summary 24 The plaintiff submitted that the range and extent of his current disabilities, the intensity of generalised pain throughout his body and localised pain in the upper and lower back, and the progressive deterioration in his level of functioning are consistent with a diagnosis of post-traumatic fibromyalgia (sometimes referred to as a chronic pain disorder or generalised chronic pain syndrome). This is a condition which the plaintiff claims is causally related to the trauma he suffered when the roller shutter door struck him on the head. The causal connection is forged, so it was submitted, because trauma is recognised in the medical literature as a possible cause of the condition and because the preponderance of evidence favours that being the cause in this case in circumstances where the symptoms that ultimately crystallised in the diagnosis of fibromyalgia in February 2007 first presented at the time of, or soon after, the plaintiff was struck on the head and that they have continued largely unabated since that time. The plaintiff also emphasised that no alternative, or sufficiently cogent alternative cause was suggested by the evidence and that, in all these circumstances, I would be satisfied that the blow on his head materially contributed to the disabling condition from which he suffers. The soft tissue injury diagnosed by [NAME] is rejected by the plaintiff. 25 The diagnosis of fibromyalgia was first made after clinical examination and assessment by the [NAME] treating rheumatologist, [NAME], a diagnosis which [NAME] has confirmed in his regular review of the plaintiff since that time. [NAME], a specialist occupational physician, also diagnosed fibromyalgia in October 2007. 26 I interpolate to note that [NAME] report was commissioned by the [NAME] workers compensation insurers in October 2007 for the purposes of proceedings that are pending in the District Court between the insurer and the defendants in these proceedings. [NAME] report was served by the insurer in the District Court proceedings, but first came to the notice of the [NAME] lawyers in this Court when it was produced under a subpoena addressed to the insurer after the hearing commenced.

Accordingly, the report was not served by the plaintiff in accordance with r 31 of the Uniform Civil Procedure Rules. It was, however, tendered without objection in the proceedings and arrangements were made to have [NAME] attend for cross-examination. Although it is somewhat surprising that the [NAME] solicitors were unaware of the existence of [NAME] report, and unaware that he also diagnosed fibromyalgia, I accept that to be the case. Were it otherwise I am confident it would have been served as part of the [NAME] case. 27 While the fact that [NAME] report was not served is explicable, what is neither explicable nor acceptable is the failure of the parties to schedule a joint conference of the [NAME] in accordance with orders made by the Registrar in May 2009 with a view to the [NAME] preparing a joint report and giving their evidence concurrently in the proceedings. It was obvious from the service of the balance of the [NAME]' reports that there were contentious issues of causation, and divergent views about diagnosis, in which case every effort should have been made to facilitate that process. In the result both [NAME] and [NAME] gave evidence in the proceedings separately and were cross-examined without any of the defendant's [NAME] having the opportunity to hear them give their evidence or to engage in a meaningful dialogue on the question as to whether fibromyalgia was an available diagnosis. It also deprived the Court of the considerable advantage in having the [NAME] give their evidence concurrently, an approach which is designed to assist in identifying, with precision, those matters about which the [NAME] are ultimately agreed (or about which there is no relevant conflict) as well as isolating the extent of any disagreement between them and the reasons for it. Given the discursive nature of some of the [NAME]' reports (particularly the defendant's [NAME] who furnished reports in 2008 and 2009), I am of the firm view that the failure of the parties to comply with the orders of the Court has made resolution of the issues of causation and prognosis in this case unnecessarily burdensome. 28 The plaintiff submitted that under cross-examination neither [NAME] nor [NAME] departed from nor qualified their views on the question of the diagnosis of fibromyalgia and its likely cause being trauma associated with the roller shutter door striking the plaintiff on the head. In addition, the plaintiff submitted that the defendant's [NAME] did not reject the diagnosis of fibromyalgia per se, as distinct from them expressing doubts about the reliability of the diagnosis given the complexities of the [NAME] presentation. The plaintiff also emphasised that of the [NAME] relied upon by the defendant only [NAME] and [NAME] examined the plaintiff (while [NAME] examined him with [NAME]), none of whom are specialist rheumatologists. Although the defendant tendered a report from [NAME], a specialist rheumatologist, he did not examine the plaintiff before offering the opinion in his report of 29 August 2009 that abnormal illness behaviour was the preferable diagnosis to that of fibromyalgia. His opinion was based on his review of the opinions of various clinicians across a range of specialties and his commentary on their views.

29 [NAME] submitted that when the evidence of [NAME] and [NAME] is considered in light of all the evidence bearing upon the [NAME] presentation over the eight months after the incident and before he was diagnosed with fibromyalgia in February 2007, the doubts expressed by the defendant's [NAME] about the reliability of the diagnosis and its causal connection to the blow to his head should be resolved in the [NAME] favour. It was further submitted that the defendant's [NAME] offer opinions of little weight on the issue of causation in any event, and their various reports raise more issues than they resolve. In the result, so it was submitted, their evidence does not undermine the [NAME] case on either causation or prognosis. It was for this reason (so I am informed) that [NAME] made the considered decision not to require any of the defendant's [NAME] to attend for cross-examination, despite being afforded the opportunity by me to adjourn the proceedings to allow that to occur. 30 [NAME] submitted that because none of the defendant's [NAME] were cross-examined their reports should be accepted without qualification in accordance with what the Court of Appeal has determined in M and EM Hull Pty Ltd v Thompson [2001] NSWCA 359 to be the appropriate approach in such circumstances per Rolfe JA ([NAME] and [NAME] agreeing): "[20] Because of the way in which the parties, and particularly the appellant, chose to conduct the case, his Honour had before him only the reports of four expert engineers, none of whom was required for cross-examination. [ADDRESS] has, on a number of occasions, remarked on the difficulties a Court confronts when asked to decide matters involving various types of expertise without the benefit of at least the principal expert witnesses being cross-examined. [21] Prima facie if there is no cross-examination of an expert, (and indeed most witnesses), there is no basis for a Judge not to accept the unchallenged evidence. I say "prima facie" because there are circumstances in which evidence in a report may be rejected or subject to criticism or doubt. This may occur where, for example, the report is ex facie illogical or inherently inconsistent; or where it is based on an incorrect or incomplete history; or where the assumptions on which it is founded are not established. However, in the absence of some such matters, there is no rational reason to not accept unchallenged evidence."

In that case his Honour also observed that the failure to cross-examine may be based on a calculated decision to argue the matter without attacking the evidence. 31 After I have reviewed all of the evidence it will be necessary to consider the consequences that flow from the fact that none of the defendant's [NAME] were cross-examined since it is only at that time that an assessment can be made of the weight of their unchallenged or untested views on the issue of causation and, in the event that causation is resolved in the [NAME] favour, their views as to the [NAME] likely prognosis for the purposes of an assessment of damages.

The [NAME] alternate case on causation and damages 32 The plaintiff submitted that an axial compression injury, or a lumbar disc injury is an alternate explanation for at least some features of his condition and associated disabilities. The evidence of [NAME], orthopaedic physician, and [NAME], both of whom gave evidence in the proceedings, is the primary source of the alternate basis for the [NAME] claim for damages related to injuries of that kind. [NAME] conceded, however, that if the plaintiff failed to make out the causal link between the traumatic injury to his head and fibromyalgia, but established an entitlement to damages on the alternate basis of a spinal injury by the same mechanism, the [NAME] entitlement to what would otherwise be a substantial award of damages on the basis of his permanent incapacity due to fibromyalgia would be very significantly reduced, as would any award of damages for non-economic loss under the regime provided for in the Civil Liability Act 2002. 33 That said, [NAME] submitted that the plaintiff had discharged the onus of proving the necessary causal relationship between his injuries and the defendant's negligence in accordance with the principles of causation embodied in ss 5E and 5D of the Civil Liability Act, whether on the primary basis of the diagnosis of traumatic fibromyalgia or the alternate basis of spinal injury. The defendant's position on causation and damages in summary

34 The defendant conceded the [NAME] entitlement to damages, but submitted that where the evidence did no more than establish that the plaintiff suffered a soft tissue concussive type injury as a result of the roller shutter door striking his head, he should be awarded only a modest sum in damages and for a closed period not exceeding two months. 35 In so far as the [NAME] claim extended beyond that closed period, the defendant submitted that the plaintiff had not discharged the onus of establishing that he suffers from fibromyalgia (or any other chronic pain disorder that is trauma based) as an explanation for what the defendant accepted is the [NAME] subjective experience of chronic pain and his associated functional disabilities. 36 After taking into account what was submitted to be a degree of hysteria and exaggeration in the way in which the plaintiff gave his evidence, coupled with the views of some of the defendant's [NAME] that the [NAME] presentation to them was indicative of abnormal illness behaviour and exaggeration, and after taking into account the divergent anatomical sites where the plaintiff complains of pain and the varying degrees of functional compromise reported upon by his treating doctors, the defendant submitted that the [NAME] current disabilities are equally as likely to be explained either by a disabling condition of an unknown or uncertain aetiology, or a condition of psychosomatic origin causally unrelated to the single blow to his head when he was struck by the roller door. 37 Even if fibromyalgia were an available diagnosis in 2007 (which is disputed), the defendant submitted that because it was made for the first time eight months after the plaintiff suffered the blow to his head the probabilities do not favour trauma being the cause. While trauma is recognised in the medical literature as a possible cause of fibromyalgia it is simply one of a number of possible explanations identified by clinicians and academics in an attempt to understand the aetiology of a condition that is otherwise without any definitive cause. 38 In so far as the alternate diagnosis of spinal injury is concerned (whether that is to be understood as an axial compression injury or cervical/lumbar disc injury - the two options suggested respectively by [NAME] and [NAME]), the defendant submitted that where comprehensive radiological and neurological investigations have produced no evidence of any physical damage to the [NAME] spine or spinal processes, I would not be satisfied that an injury of either kind is attributable to the blow to his head, or that his disabilities are capable of being explained on that basis. 39 The defendant further submitted that even were I satisfied that the plaintiff suffered a compressive injury to his spine or a lumbar disc injury, since the injury has not been confirmed by imaging or radiology, I would not be satisfied that it was either prolonged or disabling and, for that reason, the plaintiff would not be entitled to damages beyond a closed period of two months in any event. It was also submitted that since the injury was neither prolonged nor disabling he has failed to meet the threshold of 15 per cent of a worst case entitling him to any award of damages for non-economic loss as provided for in s 16(1) of the Civil Liability Act.

40 In the event that the plaintiff established the necessary causal link between the blow to his head and his current and continuing disabilities beyond a closed period of two months, the defendant submitted that any award of damages for future economic loss must be heavily discounted by the fact that the [NAME] current condition is not only productive of varying levels of disability, but also by the very real prospect that within a reasonable period of time the condition will resolve sufficiently to enable him to return to full-time work with an undiminished earning capacity. It is submitted that for this reason his claim for future economic loss and damages associated with his future medical and pharmaceutical expenses should also be heavily discounted.

What is fibromyalgia and what are its characteristic features? 41 In seminal research first published in 1990 after extensive clinical and controlled trials in the latter part of the previous decade, the American College of Rheumatology proposed a classification criteria for what was at that time understood as a "fibromyalgic condition" - a condition characterised by a complaint of persistent widespread pain and abnormal tenderness over much of the body for which there is no physiological or neurological explanation. For clinical purposes, the classification criteria was specified at that time (and has been consistently specified ever since) as chronic widespread pain in combination with a report of pain under digital palpation, associated with the application of at least four kilograms of pressure at eleven or more of eighteen specific locations concentrated in the thoracic, lumbar and cervical areas. These specific locations were given the designation "tender points" or "trigger points". 42 [NAME] is recognised as one of the leading researchers into fibromyalgia, a condition which is currently recognised as a disease by the International Classification of Diseases, ICD-10. It was suggested to [NAME] in cross-examination that in an article published in the Journal of Rheumatology in 2003, [NAME] recanted any reliance on the classification criteria proposed by the American College of Rheumatology for clinical or diagnostic purposes. After my own review of that article, and taking into account the consideration given to it by [NAME] at [NAME]' invitation during a break in cross-examination, I am satisfied that although [NAME] expressed concern at the way in which the classification criteria has been, or might be misused by pharmaceutical companies or by litigants, he regarded the utility of the classification criteria for diagnostic purposes in a clinical setting as sound. 43 According to [NAME], Director of Rheumatology at [COMPANY], acknowledged as the leading Australian researcher into fibromyalgia and its causes by [NAME] and [NAME], the key to diagnosing fibromyalgia is the consideration given to the overall clinical picture of the patient. In a peer-reviewed article in November 2006 in the publication [NAME] expressed the view that the clinical criteria for diagnostic purposes should focus not only on the classification criteria propounded by [NAME] (a criteria which is directed at locating and identifying the severity of the musculoskeletal pain) and the fact that the condition is usually associated with sleep disturbance, fatigue, stiffness and high levels of emotional distress, but also whether the patient presents with one or more other dysfunctional somatic syndromes, including irritable bowel syndrome, a chronic headache syndrome, restless legs syndrome, poor concentration and memory disorder. He also emphasised that there is a wide spectrum of what he describes as "illness severity" in fibromyalgia. In the same article he expressed the view that: "…Many people with the condition have mild disease (mild pain and minor impact on key life issues) and management is relatively easy - indeed, many self-manage key fibromyalgia problems and do not consult health practitioners. At the other end of the spectrum are those patients with severe symptoms and disabilities. These patients often need a multidisciplinary approach to treatment, and many are enmeshed in societal safety net deliberations such as compensation, litigation and disability determinations, which can make management very difficult." 44 [NAME] also noted that since the research into the condition by [NAME] in the 1980's, more than 2000 publications have evaluated different facets of fibromyalgia in a committed effort to seek a better understanding of the causes of the condition and optimum ways of managing it. He also noted that research into the condition and its causes has progressed over the last two decades and is continuing. He described fibromyalgia as an "ubiquitous condition" affecting 500,000 people in Australia alone. 45 [NAME] agreed that the tender points (or trigger points) do not follow any particular neurological pattern or dermatone, and that restricted movement or compromised function forms no part of the diagnostic criteria for the condition. [NAME] emphasised, however, that patients with fibromyalgia are usually tender in many areas of the body, in addition to the specific trigger points utilised for diagnostic purposes. He emphasised that the classification of the trigger points or tender points in diagnosing fibromyalgia does not preclude the fact that a patient may present with generalised tenderness. He said in that regard: "…that's not out of the equation, that is, in fact, what we would expect that there would be…" 46 He went on to say that while restriction in a patient's range of movement was not a usual presenting symptom of fibromyalgia: "…Most patients with fibromyalgia have restriction of movement and typically it's in the neck and shoulder area…because they have such profound muscle spasm that they are unable to relax their muscles to actually move their joints through a normal range of motion."

47 In [NAME] view the high level of restriction that the plaintiff presented with in October 2007 may or may not be typical of the presentation of a person with fibromyalgia. He explained what he meant by expressing that view in the following way: "A. It is due to the reluctance on the part of the person to move because of pain. It is not due to muscle damage itself or damage to the vertebrae which would restrict the movement and these restricted movements will vary from day to day, from week to week, between one doctor and the next doctor or even with the same doctor who examines on subsequent occasions.

Q. Can I put this to you, what in the first place restriction might occur, that is very profound limitation of movement might occur because the patient is protecting themselves in fear of hurting themselves. That can be one reason? A. That could be one reason.

Q. Another reason can be, I suggest, and it's common in clinical practice that the patient, particularly with a diagnosis such as this, is trying to emphasise to the doctor that they're in pain, there's a degree of gesturing to reinforce the fact that they've got the pain and want you to know it? A. That's possible.

Q. You accept that the criteria does not require the presentation of severe limitation of movement or the like? A. I accept that.

Q. And it's not absent those matters we've discussed, it's not the norm in fibromyalgia people? A. Again that's a qualified answer.

Q. You may qualify. A. …It is well recognised that these people have marked stiffness on waking in the morning called morning stiffness. That's in the literature. As the day goes on and they move about and they warm up they become much less restricted in their movements so you will find a different picture say in the afternoon as compared with in the morning and I've already stated that they vary from week to week anyway." 48 After reviewing reports furnished to him by the defendant, including the reports of [NAME] noted in his first report of 4 August 2009 that a diagnosis of fibromyalgia had been made. He went on to express the view that the [NAME] behaviour, as recorded by a number of specialists, was not in keeping with what he described as "the usual pattern of behaviour and reporting in people with this syndrome". He provided no explanation or elaboration on what comprised the usual pattern of behaviour of sufferers or how the [NAME] presentation was at variance with it. 49 In a subsequent report, doubtless sought because of the deficiencies in his first report, [NAME] explained that he relied upon information in [NAME] report of 5 February 2008 of the [NAME] restricted range of motion in the cervical, thoracic and lumbar spine and information in [NAME]'s report of 28 May 2008 that the plaintiff was walking stiffly using a walking stick. [NAME] was of the opinion that this behaviour was not usual for someone with fibromyalgia. He also noted [NAME]'s observations in August 2008, that the plaintiff resolutely refused to move any part of his spine and the range of movement in his neck and back was zero. In [NAME]'s view, although people with fibromyalgia report widespread pain their observed function is normal, or near to normal, and that save for the fact that they may move slowly to express to the treating doctor that they have symptoms which should be dealt with sympathetically, they have a full, or nearly full range of movement. It is clear from [NAME]'s reports that it is this aspect of the [NAME] presentation that he relied upon in expressing the view that the label of abnormal illness behaviour is more appropriate than what he described as "the label for fibromyalgia", behaviour which, in his view, also increased the likelihood that conscious exaggeration, embellishment and malingering is a contributing factor in the [NAME] presentation. 50 The conflict between the [NAME] on the question whether restriction in function is a presenting feature of fibromyalgia exemplifies the advantage of having [NAME] within an established discipline give their evidence concurrently. In this case resolving the conflict between the [NAME] on this question is further complicated by the fact that [NAME] was not required for cross-examination and, accordingly, I have not had the opportunity to consider whether his opinion might have been qualified after he considered the evidence of [NAME] and [NAME] on the issue. Despite what is contended for as the approach I should take in those circumstances in accordance with the principle in [NAME] v [NAME], I am unable to afford [NAME]'s opinion the weight contended for by the defendant in circumstances where I have heard evidence from [NAME] and [NAME] and where both doctors have an extensive clinical exposure to patients who suffer from the condition. [NAME] does not claim to draw support for his opinion from his own clinical experience (the extent of which is not disclosed in the tendered reports in any event). In fact he does not claim to have had any clinical exposure to the condition or to have had personal experience in its diagnosis. As I noted earlier, he did not see the plaintiff and, as he makes clear in his report, his opinion was provided on the basis of the information contained within the materials furnished to him for comment by the defendant. 51 The plaintiff attended on [NAME], a consultant physician in Rehabilitation Medicine and Musculoskeletal Medicine, at the request of the defendant on 4 June 2009. [NAME] was also invited to consider a large number of reports, some of which had been served in these proceedings by that date, including, in particular, the reports of [NAME]. [NAME] report was not provided. 52 [NAME] conducted an extensive examination and also reported, inter alia, extreme restriction of function. He described it in the following terms: "Most unusual presentation of a rigidly upright tall [NAME], with a walking stick, who does not turn his head, and therefore in order to look at anything or anyone he turns his whole body with his head held stiffly, and who walks with midget steps (similar to a Japanese Geisha, but more slowly). He is unable to toe-walk or heel-walk. He explained that he would lose balance and fall backwards or forwards (respectively) if he tried. As an alternative, I asked him to stand on the one spot whilst raising both heels at the same time; he was cautiously able to do this but lifted his heels no more than 1½cm (the normal would be about 10cm). He was unable to squat. In attempting to do so he flexed his knees to no more than 15 degrees, even though he was holding onto furniture for support. He explained that he could go no further down because of back pain, yet at this moment his body remained vertically upright." 53 He went on to report that: "All movements (in the trunk) were unusually grossly restricted. Extension and rotation were virtually non existent. Side bending and forward flexion were only 1/5 th of normal. All attempted trunk movements were prevented by back pain from the mid sacral level up to the lower quarter of the thoracic spine." 54 He reported similar restriction in the hips, knees, neck and shoulders. In respect of the [NAME] examination overall he commented as follows: "It is difficult to explain his extreme disability in the absence of objective abnormal neurological signs on examination of the central and peripheral nervous systems, and in the absence of any injury or structural pathology demonstrated on X-rays and scans of the cervical and thoracic spine.

In an extensive medical career, in daily treating patients with both acute and chronic strains/injuries and in treating severe disability in rehabilitation medicine [NAME] created the most unusual impression I have seen of such extreme disability, with pain, in the absence of any objective signs on examination or investigation". 55 He noted [NAME] diagnosis of fibromyalgia, and commented upon the condition in uncontroversial terms noting that it is a differential diagnosis made by exclusion. He did not, however, express disagreement with the diagnosis per se despite his examination of the plaintiff and his findings of gross restriction. I note that he also found the plaintiff to be experiencing widespread tenderness and hypersensitivity that prevented the isolation of trigger points. That said, he did not suggest that his findings on examination on that occasion contradicted the diagnosis [NAME] had reached sixteen months earlier, a diagnosis confirmed by [NAME] on review at regular intervals thereafter. He simply recommended the defendant's solicitor to what he described as "the balanced and readable summary (of fibromyalgia) published online in Wikipedia". 56 In the result, [NAME] diagnosed a chronic pain syndrome with altered pain mechanisms and tolerance associated with a dependence on opioid based narcotic drugs coupled with what he described as a strong psychosomatic base. He regarded the severity of the [NAME] symptoms as closely linked with psychological factors, as distinct from any primary physical pathology. He also expressed agreement with the need to include malingering as part of the differential diagnosis. 57 I will return to consider the weight of that opinion when considering the question of causation in greater detail. Suffice to note at this point that [NAME]'s report does not assist in resolving the question whether restriction in function is a presenting feature of fibromyalgia or not. 58 None of the other [NAME]' reports relied upon by the defendant were directed to the issue. In those circumstances, having expressed my views about the preponderant weight of the evidence of [NAME] and [NAME] on the question, I do not regard the [NAME] restriction of function as having any bearing upon whether fibromyalgia is an available diagnosis in this case. 59 It is appropriate at this time that I deal with the defendant's submission that there are two further features, or suggested features, of fibromyalgia which undermine the diagnosis in this case. 60 The first concerned the question whether it is usual for the symptoms of fibromyalgia to fluctuate in intensity over time, the second whether it was usual for symptoms of fibromyalgia to be exacerbated by stress, the second a question which is quite separate from whether stress is an independent cause of the condition. In [NAME] opinion neither of these features operated to undermine the availability of the diagnosis. He was asked the following questions by me at the conclusion of cross-examination by [NAME]: "Q. Doctor, you said it is typical of the condition that it waxes and wanes over time, and it's not unusual for stress to be an exacerbater; that is, an explanation for an increase in the presentation of symptoms in the context of symptoms perhaps appearing to resolve. That much is agreed? A. Yes.

Q. Would it be in your view typical or atypical for a person to present with symptoms of pain in the spinal upper back area within weeks of suffering the trauma but to complain of the pain being mild to moderate, and then over the progression of weeks and months after that initial period of, say, eight weeks or so, for the condition to become very significantly worse? So rather than a waxing and waning, a waning and waxing? A. Yes.

Q. Is that typical or atypical? A. It's something which we observe in patients with this condition but perhaps, as has been pointed out by [NAME], there are other factors which might exacerbate that. I mean, he referred to the situation when [NAME] attempted to return to the [NAME], which I was not aware of, where there appeared to be a lot of conflict and so on.

Q. …Extracting that from the hypothetical scenario for the moment and simply focusing on a physically traumatic incident, where there is an immediate presentation of pain that sustains complaint over a period of weeks but where the pain is described by the person experiencing it as mild to moderate, and located in what I understand to be the tender or trigger regions of the upper back, shoulders and neck, and thereafter, for no particular reason, for the condition to become very, very significantly worse. Is that typical, atypical or is this condition such that there is really no typical course that a patient suffering the condition presents with over weeks to months and then subsequently to years? A. It's a very good question, and in the sense of saying, "Well, something is typical of fibromyalgia," it's extremely hard to really define what's typical of fibromyalgia. So we would see this scenario where a patient starts off with relatively minor symptoms that may escalate. In fact it's not quite the same as, say, for example, you have an accident like this and you have a fractured leg or something where pain is obviously much worse at the beginning and then tails off. So it's a very different situation from that. So I think the fluctuation part of it, we've already agreed, is part of the syndrome. He is a lot worse than he was at the beginning - there's no doubt about that - over the period of time that's elapsed. I couldn't say that was typical of fibromyalgia. I couldn't say it was outside my observations for people who have fibromyalgia and which there is no litigation involved.

Q. All right. I think that gives me some insight. The range or limitation on the range of movement; again, it's probably encompassed by the answer that you've just given. But I want you to assume on a full physical examination within that window period of eight weeks or thereabouts after the incident, the patient was able to stand and hop from one foot to the other and flex his hips, his reflexes was sound and he was able to squat, which one might infer indicates there was no pain in the knees or ankles. Whereas, as you observed, there was very significant limitation of movement. Again, it is not typical, but is it in your experience not outside of the reach of the condition as you've observed it in clinical practice? A. Yes, not outside the clinical practice that I've observed." 61 While the defendant's [NAME] considered that the variation in the [NAME] presentation of symptoms over time was relevant to the question of causation generally, they did not regard it as significant for diagnostic purposes. The extent to which it is relevant to causation remains to be considered in the context of all the evidence in the case. Similarly, the extent to which stress is available to be considered as an independent cause of the [NAME] condition (that is, a cause unrelated to the trauma he sustained when he was struck on the head) will also be considered in the same context. 62 The defendant also advanced the submission that cognitive dysfunction (in particular impaired concentration and/or memory deficit) is one area of objective testing associated with the diagnosis of fibromyalgia. The defendant emphasised that despite the [NAME] complaint of memory loss and impaired concentration in his presentation to various clinicians, the deficit has not been clinically validated.

The competing causes of fibromyalgia

63 [NAME] confirmed under cross-examination that the precise cause of fibromyalgia is unknown and for that reason it calls for a differential diagnosis. [NAME] agreed that the diagnosis calls for a differential approach but emphasised that was simply an approach consistent with standard diagnostic practice. He rejected the suggestion that fibromyalgia was a "waste paper diagnosis". 64 Both doctors agreed that various hypotheses have been advanced in the medical literature as to what might trigger the condition including, inter alia, trauma, medical illness, infection, a deficit in growth hormones and other biochemical deficiencies. They also agreed that stress and an individual's reaction to it (entirely independent of trauma) is gaining ground and credibility as a potential cause of the condition, and that the work currently being undertaken by [NAME] into the condition, and the explanations for it, is directed to identifying potential stressors. [NAME] accepted that exaggeration is often considered as a potential explanation for the presentation of a person with persistent widespread pain but qualified his answer by adding: "(Exaggeration) is always mentioned when, as I said before, there is no clinical biological marker for the condition then the fall back condition is always the patient must be feigning … as I said, these patients (those suffering from fibromyalgia) are very consistent in relationship to where the trigger points are, the involuntary muscle spasm we have referred to already. The long list of information in the papers you have given me from all these different practitioners who produced this criteria for this diagnosis are very consistent. The patients are very consistent. They don't collude with each other…". 65 Whatever the probabilities of a particular event or set of circumstances triggering the onset of the condition in any given case, [NAME] expressed the view that the research was suggestive of the condition reflecting a process whereby a person's pain receptors are reset at a level where they respond adversely to a stimulus that would not be productive of any adverse effect in others subjected to the same stimulus or, to put it another way, that the threshold at which the pain receptors "fire off" in a sufferer is lower than it would be for others in the general population. He went on to explain that the lowering of the pain threshold appears to relate to the fact that the trigger points in a sufferer are often demonstrated on clinical examination to be associated with profound muscle spasm. He said: "What seems to happen in fibromyalgia is this hyperactivity or hyperactivity of nerve endings generally. If those nerves are the nerves which go to muscle groups then the muscles will contract so when you examine a patient under those circumstances, it is very clear that they have very tight muscles that are knotty, that are contracted, that are standing up from the surface if you like. This is not a voluntary thing. This is an involuntary reaction."

66 [NAME] evidence is consistent with the detailed discussion of what [NAME] described in Medicine Today as the "neurobiology of fibromyalgia" which, in summary, involves an amplification of the functioning of the pain system leading to whole body sensitivity to pain or an abnormal central processing of pain. 67 [NAME] was of the opinion that fibromyalgia is a disease of the central nervous system in the way pain is registered. He accepted that although there was no neurological evidence to support his view he considered that chemical changes in the way the nervous system processes or registers pain result in a sufficient departure from normal brain function to justify fibromyalgia being classified as a disease.

A principled approach to resolving the question of causation in this case 68 [COMPANY] v [NAME]; James Hardie & Coy Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262 [NAME] observed that causation, as with any other fact in dispute, is open to be established by a process of reasoning by inference from the united force of primary facts, including expert opinion, even when the expert evidence does not rise above the causal connection contended for being expressed in terms of possibilities. In his Honour's view the authoritative approach in those circumstances is as stated by [NAME] in [NAME] v [NAME] of Australia Ltd [1975] 2 NSWLR 190 at 197: "…The issue of causation involves a question of fact upon which opinion evidence, provided it is expert, is receivable. But a finding of causal connection may be open without any medical evidence at all to support it: [NAME] v Commissioner for Railways (NSW) (1970) 45 ALJR 465, or when the expert evidence does not rise above the opinion that a causal connection is possible: [COMPANY] v [NAME] [1970] 2 NSWR 238; appeal dismissed (1970) 44 ALJR 360N. The evidence will be sufficient if, but only if, the materials offered justify an inference of probable connection. This is the only principle of law. Whether its requirements are met depends upon the evaluation of the evidence." 69 In the same case the Chief Justice accepted that it is sometimes difficult to distinguish between permissible inference at one end of a continuum and conjecture on the other since there is no bright line that divides the reasoning process involved. Nevertheless, the distinction between the two exists. In reasoning by inference, as the Chief Justice observed, evidence of possibility (in this case that fibromyalgia might be caused by trauma) should be regarded as circumstantial evidence which, alone or in combination with other evidence, may establish causation for legal purposes. In this case the issue is whether the evidence persuades me by a process of reasoning by inference that the defendant's admitted negligence probably caused or materially contributed to the disabling chronic pain condition from which he suffers, however it is described. 70 As the defendant correctly submitted, this case calls for the application of the principles of fact finding enunciated in [NAME] v Percy [2003] HCA 22; 214 CLR 118 requiring me to reason to a conclusion on the question of causation by reference to contemporary materials and the objectively established facts. The defendant also submitted, and I accept, that the first eight months after the incident at Sydney airport on 10 July 2006 call for critical attention given that fibromyalgia was not diagnosed until February 2007, and that there was some variation in the [NAME] presentation prior to that date at a time when he was subject to other environmental stressors which may have independently contributed to the onset of a chronic pain syndrome. 71 The evidence bearing upon the [NAME] condition and presentation in that eight month time frame emerged from a number of sources. The plaintiff gave evidence as did members of his family. The plaintiff also relied upon extracts from his journal which he maintained for a period of weeks in October 2006. The journal was admitted over objection ([NAME] v [COMPANY], Supreme Court of New South Wales, Fullerton J, 30 October 2009). He also relied upon what [NAME] submitted was a consistent clinical picture of emerging symptoms of fibromyalgia, albeit not diagnosed as such, in the reports of various treating specialists and other clinicians he attended upon within weeks of the incident and for successive months thereafter. 72 An evaluation of the united force of this evidence has a significant bearing on the issue of causation, consistent with the Chief Justice's observation in Seltsam, that causation, like any other fact, can be established by a process of inference from primary facts. 73 [NAME] cross-examined the plaintiff to suggest that he had deliberately exaggerated the effect of the injury to his head and the range and extent of his disabilities, and that he deliberately understated the extent of improvement in his condition from time to time to advance his case. There was, however, no challenge to the evidence of [NAME] or his father's description of his condition, initially on his return from Brisbane on 12 July 2006, then whilst overseas during the month of August 2006, and thereafter in the months leading up to February 2007 when he was first diagnosed with fibromyalgia. 74 I will return to consider the principles to be applied in resolving the issue of causation where there is no definitive cause of the disabling condition from which it is said the plaintiff suffers and only a gathering understanding of the complexities associated with its onset, and where a temporal connection between the onset of symptoms in an otherwise fit and healthy [NAME] and the blow to his head is relied upon to support the reasonable inference that the condition he suffers from was caused by that mechanism.

The evidence from members of the [NAME] family 75 [NAME] picked him up from the airport on 12 July 2006 because she knew he had been injured and was ill. He complained to her of a very bad headache and nausea associated with vomiting. He also complained of a stiff neck and back. She gave evidence that the vomiting continued on at least a weekly basis over the first six months and was much worse when he was in extreme pain. She also gave evidence that during this time he complained of a constant headache and constant back pain. Under cross-examination she rejected the suggestion that there was any improvement in his condition before leaving for overseas, or that the plaintiff told her that he was feeling better, or that at a consultation with [NAME] the day before leaving he said he was feeling better. [NAME] said when he saw his son two days after his return from Brisbane he was "white like a ghost", and that he did not want anyone to touch him as he was in constant pain and being touched made his body feel like it was burning. As [NAME] had work commitments, the [NAME] mother stayed for a week to look after him (and then for some weeks thereafter). 76 During the flight to London via Singapore in August 2006 the plaintiff complained to his wife of being in pain alternating his position between standing, sitting and trying to lie down to relieve the pain. She said that during a stopover in Singapore he had a massage and lay on the airport lounges or on the floor in the terminal. By the time they arrived in Turkey she said he did not leave the hotel very often preferring to stay in bed, lying down on couches or beds in the homes of the family members they visited and that when he walked he do so very slowly. 77 [NAME] said his son told him that when he was overseas he was in constant pain, and felt dizzy and drowsy and that he was vomiting. [NAME] said that two months or thereabouts after the injury he visited his son (as he did every second week because his son could not make the drive to [NAME] to visit the family as he did before he was injured) and that he accompanied him on a walk because he had been advised by his doctors to keep mobile. [NAME] said he was moving very slowly and complaining of pain. [NAME] said in cross-examination that he saw no improvement in the [NAME] condition during the first six months after the incident and no particular deterioration in his condition when he told his father of his erectile dysfunction in September 2006. [NAME] gave evidence that he was progressively worse at that time with the pain, which started in his neck and back, and moved to his arms and his legs.

78 [NAME] confirmed that he was unable to cope with work after their return from overseas because of what he described to her as extreme pain which interfered with his ability to concentrate. She also said that he was having difficulty with the drive from their home in Eastlakes to Artarmon and that from the latter part of 2006 he ceased driving altogether. She also said that where prior to July 2006 the plaintiff participated in the maintenance of the domestic setting, after the accident he was unable to share the domestic workload because of his condition and even less so with the progressive deterioration his condition.

The medical evidence bearing upon the [NAME] condition in the first eight months after the incident at the airport 79 The defendant placed considerable reliance upon [NAME] clinical notes to contradict the [NAME] claim that his symptoms did not abate after the blow to his head and that his pain has progressively worsened. [NAME] accepted that the clinical records of a general practitioner should be approached with some degree of caution, but submitted that there was an established judicial practice of attaching a degree of reliance and importance to a general practitioner's clinical notes, absent some specific reason for not doing so. For my own part, I do not propose to attach any presumptive weight to [NAME] clinical notes or to the [NAME] self-report to various treating specialists during this period, any more than I propose to attach presumptive weight to the [NAME] journal. In this case, the weight of the evidence bearing on the issue of causation can only be determined in light of all the evidence concerning the [NAME] condition at this time. 80 Both parties tendered comprehensive documentary evidence from medical [NAME] across a number of disciplines ranging from rheumatology, orthopaedics, neurology and psychiatry, each of whom endeavoured over the course of the months that followed the incident at Sydney airport to reach a settled diagnosis or explanation for the [NAME] chronic pain. Where the plaintiff relied upon the evidence of [NAME] and [NAME], both of whom diagnosed fibromyalgia, the defendant relied upon the report of [NAME], also a specialist rheumatologist, who did not arrive at a diagnosis at all. Both parties relied upon [NAME], a neurologist, who diagnosed a post-traumatic syndrome with somatisation. [NAME], a clinical psychologist, did not find any evidence of a psychiatric disorder. The defendant also relied upon [NAME], a neurologist, who diagnosed a soft tissue injury, a diagnosis consistent with [NAME] diagnosis and the treatment he provided to the plaintiff. The plaintiff relied upon [NAME] who diagnosed an axial compression injury to the spine as the basis for his alternate case on damages. 81 Some of these specialists also addressed the [NAME] likely prognosis and proposals for the treatment and management of his condition in the future. Obviously enough, this is an issue which only arises for consideration if causation beyond the closed period of two months is resolved in the [NAME] favour. For that reason, it is necessary to refer to the expert evidence in two parts. At this stage, I confine my attention to the medical evidence bearing upon the question of causation, with particular focus on the eight months prior to the diagnosis of fibromyalgia in February 2007 and for a period of months thereafter so as to include reference to [NAME] report. I have summarised that evidence, inclusive of [NAME] clinical notes and, where relevant, references to the [NAME] journal and his evidence in the proceedings in a chronological format as the most practical way of dealing with the competing submissions of the parties. It is also the most practical way of revealing consistencies and exposing discrepancies in the [NAME] presentation to various clinicians ultimately with a view to resolving whether the plaintiff has discharged the onus of establishing the necessary causal connection between the blow to his head and the diagnosis of fibromyalgia for which he contends.

A chronology of relevant events and the evidence concerning those events between 12 July 2006 and 6 February 2007 82 I have already noted at [12] the [NAME] presentation to the Mater Hospital in Brisbane on 11 July 2006, and his complaint of soreness in the back and neck and tenderness in the mid cervical spine which revealed no abnormality after a CT scan was performed.

83 12 July 2006 The plaintiff first consulted [NAME] on his return from Queensland complaining of stiffness in his neck and lower back. On examination it was determined that his trapezius muscles were stiff, his bilateral muscles were "achey", as were his quadrants on the right side. No neurosensory deficits were detected on straight leg raising. There was no bony tenderness and only mild to moderate paraspinal spasm. [NAME] diagnosed a soft tissue injury, prescribed Panadeine Forte and referred the plaintiff for physiotherapy. Lumbar X-rays were ordered.

84 14 July 2006 The plaintiff was assessed by [NAME], physiotherapist, who noted that he complained of the following: - constant frontal headaches, - mid to lower cervical spine pain, - radiating bilateral upper trapezius pain, - sharp and constant left sided lumbar spine pain, and - occasional tingling to the left hand. He also noted that the [NAME] cervical rotation and flexion was between one half to one third of a normal range with restriction in the lumbar spine.

85 17 July 2006 [NAME] noted that the [NAME] range in all regions had improved by almost 50 per cent, with the plaintiff reporting an increase in range of motion in the cervical spine and "a small amount of loosening up". The plaintiff did not attend the following day for a scheduled appointment or on any date thereafter. 86 In his journal the plaintiff describes the first visit to [NAME] as excruciatingly painful with his entire neck/back in spasm. He records that he tried soft remedial massage as an alternative to physiotherapy two to three times a week which was also very painful but bearable. 87 The plaintiff gave evidence that he informed [NAME] of the considerable pain he experienced in the physiotherapy sessions with [NAME] despite there being some improvement in his mobility, and that [NAME] proposed massage as an alternative. He was not cross-examined to suggest this was untrue or exaggerated. Although there is no note to that effect in [NAME] clinical notes, the agreed out of pocket expenses record the cost of nine massage sessions between 19 July and 28 July 2006. 88 In his journal the plaintiff described his symptoms at this time as: "Very tight and painful neck/shoulders (front and back) Very tight painful upper/mid/lower back Consistent bad to severe headaches, occasional dizziness which caused imbalance Frequent (at least once a day) blurred vision for short periods of time (30-60 seconds) Memory lapses where I forget the most simple and common things, that I may have just been talking about, eg I couldn't remember my own phone number."

89 24 July 2006 [NAME] clinical notes record that on examination the plaintiff had 15 degrees flexion and extension in the neck with lateral flexion and rotation of 45 degrees. Straight leg raising was reported as normal. The following was also noted: "mild tension paraspinal mm…muscular" (which I interpret to reflect mild tension in the paraspinal region and mild to moderate muscular tension). He was prescribed Digesic for the pain.

90 28 July 2006 The clinical notes record that the plaintiff reported that the Digesic was helping to relieve the pain. On examination [NAME] noted "back and upper neck slowly better" with a scheduled review on the [NAME] return from overseas. 91 In cross-examination the plaintiff agreed that the clinical notes were accurate in the sense that he informed [NAME] that he was obtaining some relief from the medication. He did not, however, recall advising him of any improvement in his back and upper neck. This is consistent with the evidence of [NAME].

92 4 September 2006 The clinical notes record that after having returned from overseas the plaintiff complained of being "achey" in the neck and back, but without the accompanying headaches. After what was noted as a "long discussion" concerning the appropriate course of management for the pain, [NAME] recommended the plaintiff recommence physiotherapy. 93 8 September 2006 After a week of recommencing physiotherapy (arranged by [NAME] at this time near the [NAME] because he had resumed full-time work that week), [NAME] noted that the plaintiff still complained of being "achey and stiff" in his upper and lower back. On examination "mild mm spasm paraspinal mm" was noted. [NAME] prescribed Tramal, an opioid analgesic used in the treatment of moderate to severe pain. He also prescribed Valium. 94 The plaintiff agreed in cross-examination that he quite possibly used the words "achey" and "stiff" to describe the condition of his neck, back and shoulders at the end of the first week back at work. He said he also told [NAME] he was "in a lot of pain, very stiff in my neck, in my back". 95 The [NAME] journal records the following: "On my visit to my Dr (on the 8 th of Sept) …He also advised the severe pain was due to the severe muscle spasms. Also advised to continue physio 2-3 times per week..." 96 The plaintiff went on to record in his journal that he was in severe pain at every physiotherapy session he attended but that he continued with the treatment after he commenced working from home as he was determined to recover from the injury and because [NAME] had advised that the pain associated with the treatment might get worse before it improved.

97 15 September 2006 [NAME] reduced the [NAME] prescribed dosage of Valium after the plaintiff complained that it was making him drowsy. The clinical notes on this date record a "sl (slight) ache" in the [NAME] upper to lower back on examination and flexion at 70 degrees. Again, "mild paraspinal mm spasm" was noted. 98 It was put to the plaintiff in cross-examination that he had described the ache in his upper, middle and lower back as slight and that he was experiencing mild spasm. He said that did not sound correct as he did not use the descriptors "mild" or "slight". He said he did recall explaining to [NAME] how stiff and tight he felt. 99 On this date the plaintiff noted in his journal that, at what he describes as his weekly review with [NAME], he advised the doctor of: "…continued severe pain in my neck and whole back shoulders (sic) and increased severity in the aches in my arms and legs…". He also noted: "None of my symptoms had ceased since injury and some had gotten worse…".

100 21 September 2006 [NAME] prepared a referral letter for [NAME]. (The letter was not in evidence.) No note was made in [NAME] clinical notes of any attendance of the plaintiff on this date or any review of his condition. On the other hand the [NAME] journal entry of 21 September 2006 records the following: "… my headaches had not ceased since the incident … the aches in my legs were getting to a point where I was wobbly on my feet and losing co-ordination, this coincided with even more severe lower back pain..." He went on to detail in the journal the erectile dysfunction experienced on the evening of 21 September 2006. 101 25 September 2006 The clinical notes record that the plaintiff telephoned and spoke to [NAME] complaining of erectile dysfunction issues, together with a mild sensation of weakness in his legs, but that he was otherwise mobilising without issue. An urgent CT lumbar X-ray was ordered which on the following day revealed no abnormality. Examination in [NAME] room on that day (26 September 2006) revealed that the plaintiff was able to squat with full power and stand and hop from one foot to the other with what was noted as "Straight Leg Raising - power 4/5 extension, flexion of hips". He also noted no neurosensory deficits, and that the reflex in the [NAME] knees and ankles was intact. In his evidence the plaintiff agreed that the notes were accurate. 102 The plaintiff was also cross-examined about the impact of his experience of erectile dysfunction on his emotional state. He agreed that it was a "major problem" given that he and his wife were trying to conceive their first child and that his pre-injury libido and capacity were unproblematic.

103 4 October 2006 A week later (two days before the next scheduled weekly appointment with [NAME]), the plaintiff attended on [NAME], physiotherapist, on referral from [NAME]. In her report of 25 October 2006 to [NAME], she recorded that the plaintiff first presented with extreme cervical thoracic spasm, a limited cervical range of motion and complaining of pain and stiffness on bilateral arm elevation. She noted that the plaintiff complained of pain and aching in all four limbs, and a history of distal leg dyaesthesia following the injury. She also noted that: "Despite gentle treatment, valium and working from home, the symptoms have become more severe, more irritable and more distal. We have not been able to progress or change the treatment without being able to exclude cervical or thoracic disc disruption or the presence of a syrinyx".

104 In the [NAME] journal on that day he recorded the following: "In summary the Symptoms I am experiencing today (4 th October, 2006) are as follows, please note all of these symptoms have been there but getting worse since the injury date July 10 th , except for the last point. Very tight and painful neck/shoulders (front and back) Tender Skull Ringing in the ears Very tight painful upper/mid/lower back Major sleep disturbances, i.e. hard to fall asleep, and when I do finally fall asleep, I find it hard to stay asleep, this is the complete opposite to my pre-injury sleep patterns Sitting or standing for too long (15-20 mins) starts to aggravate my symptoms further Consistent bad to severe headaches, occasional dizziness which cause imbalance Frequent (at least once a day) blurred vision for short periods of time (30-60 seconds) Memory lapses where I forget the most simple and common things, that I may have just been talking about, e.g. I couldn't remember my own phone number Frequent severe aches down my legs to my feet and a different burning pain type feeling on my upper inner thigh area, varies in severity, best case is 6/10 Frequent severe aches down my arms, where in the most severe occasions my skin on my hands and arms hurt to touch, they become ultra-sensitive Desensitized penis, unable to gain an erection, since Thursday 21 st September, 2006". 105 6 October 2006 [NAME] noted that the plaintiff attended [NAME] for an MRI scan of his brain and spine. No examination was undertaken by [NAME] on that occasion and his condition was not otherwise reported upon. The [NAME] journal written on that day notes as follows: " Today while sitting I periodically, i.e. not every time I sat, was experiencing pins and needles in my left leg right down to my foot…" (emphasis added) 106 At about this date, in his first consultation with [NAME], the plaintiff completed an anatomical diagram indicating the sites of bodily sensation inclusive of aching, numbness, pins and needles, burning and stabbing. He did not indicate any sites of burning or stabbing. There were, however, multiple and widespread sites of aching concentrated in the neck, cervical and lumbar regions and pins and needles down the inner arms, ankles and buttocks. He also reported sleep disturbance and stiffness in the mornings with the pain being worse when straining, sitting and standing, but that it was no worse while coughing.

107 10 October 2006 An MRI was performed which was reported to [NAME] as revealing no structural issues. 108 On that date the [NAME] journal recorded: "Continued irregular pins and needles…in my left leg right down to my foot. This normally precedes the severe leg pain, though not always, no pins and needles in right leg to date, though the same pain level affects my right leg. Also consistent (bad to severe) pains in both arms right down to the palm and some fingers.

…I have also noticed changes in my personality…I easily become irritated and angry at simple silly things…" 109 13 October 2006 Following an extensive discussion about the results of the MRI scan and the [NAME] continuing pain, [NAME] commenced the plaintiff on OxyContin at a dose of 5 mg two to three times daily to address the pain. (OxyContin is described in the evidence as a powerful opiate based analgesic.) On 13 and 14 October 2006 the [NAME] journal recorded: "…I (am) yet to have a day of bearable pain in the three months or so since my injury…". 110 16 October 2006 [NAME] increased the [NAME] dose to 20 mg daily. No examination was undertaken on that occasion or on the next consultation with [NAME] on 20 October 2006. However, on 16 and 18 October 2006 the plaintiff records in his journal as follows: "Visited GP…20mg Oxycontin…After the 2 nd day I felt the most relief I had felt in 3 months. It wasn't complete relief though it was relief enough for me to be happy about. I was scoring my pain up in the 9's and 10's out of 10 on most days i.e. unbearable. Now for the first time it was like 6/10 at best…it wasn't a fix, though there was definite relief… Visited Pain Physician ([NAME])…I advised him of all my neck/whole back/shoulders and described that pain as muscle spasm and extreme tightness, also advise of the consistent moderate to severe daily headaches, very painful aches in both arms right down both arms right down to fingers…" 111 The plaintiff was referred to [NAME] at the pain clinic at [COMPANY] at the suggestion of [NAME]. After seeing [NAME] on 18 October 2008 when [NAME] reported to [NAME] that the plaintiff suffered from "widespread pain" since being struck by the roller door for which there was no clear neurological or musculoskeletal cause, the plaintiff was referred to a neurologist, [NAME], and a clinical psychologist, [NAME]. (As I have noted [NAME] was of the opinion that he had suffered an axial compression injury to his spine but accepted there was no accompanying structural damage. This grounds the [NAME] alternate case on damages.) 112 20 October 2006 [NAME] noted that the plaintiff had attended the pain clinic and that he was referred to specialists by [NAME]. He does not otherwise note that he undertook any review of the [NAME] condition by examination or in consultation with him other than confirming the prescribed medication should be continued. On this date the [NAME] journal recorded: "…I am finding it more difficult to complete 6 hours of work a day and that since being on this I was yet to complete a full 6 hour day…I achieved 4 hours on Monday...by Wednesday I was just doing 3 hours. Today I only managed to get through 2 hours of work due to my very high levels of pain…".

(This is the last journal entry.)

113 23 October 2006 The plaintiff attended on [NAME]. On clinical examination no sign of raised intracranial pressure was revealed and no muscle tenderness or stiffness. It is not clear whether the referral from [NAME] was for what was described in the report as "generalised body aches and pains, primarily involving his back and skin, as well as deep-seated pain in his arms and legs" or whether this was something reported by the plaintiff, or a combination of both. Similarly, it is not clear whether the complaint of pain and body ache was confirmed or contradicted by [NAME] in the clinical setting. [NAME] reported to [NAME] his impression that the plaintiff was suffering from a post-traumatic syndrome with somatisation.

114 25 October 2006 The plaintiff attended on [NAME] for the specific purpose of determining his suitability for psychological intervention. The plaintiff described his level of pain as being "on average 7/10", but manageable. The sites of pain were not further identified in her report. He also described some mild disturbance in sleep and appetite. [NAME] concluded that the plaintiff did not meet DSM-IV criteria for any psychological disorder, and that he did not require any psychological therapy as he appeared to be coping quite well with his pain levels. 115 October 26 2006 [NAME] reported that the plaintiff presented with cervicothoracic pain, left thoracic and lumber pain with localised pain in that region as his major symptom. He noted that the plaintiff reported that his symptoms were present all the time and extremely bothersome, rating pain at 9/10 but that Valium and Tramadol were assisting. He also complained of sleep disturbance and extreme restriction of almost all activities. On examination he was considered to have good balance but with significant paravertebral muscle spasm. He noted that the range of movement in the cervical spine was restricted in all directions and associated with pain, and that thoracolumbar spine movement was painfully restricted in the sagittal plane with patchy sensation in the mid lumbar region. In [NAME]'s view, at three months after injury there was significant paravertebral muscle spasm of the lumbar spine area and significant restriction of movement. Although there was no neurological deficit, investigation was warranted by reason of the distribution of sensory loss and consistent muscle spasm. 116 27 October 2006 [NAME] noted that he discussed with the plaintiff his ongoing pain, the need for pain management and for a rehabilitation team to assess his home environment. His condition is not otherwise reported upon.

117 31 October 2006 The plaintiff attended on [NAME], neurologist, on a referral from [NAME], another general practitioner from whom he sought advice. 118 The plaintiff said in evidence that he consulted with Dr [NAME] for the purposes of a referral after being frustrated with the lack of progress under treatment from [NAME], and after speaking about his concerns with his father having received the results of the investigations undertaken by [NAME]. The referral letter to [NAME] states: "…had concussion 3 months ago (and has) had all the tests. Still had neck pain tingling with electric shocl (sic) all over. (On examination) neck spasm." 119 [NAME] reported that the plaintiff complained of severe headaches daily at the back of the head radiating into the orbital areas bilaterally, and a squeezing type of pain which made him feel dizzy, but without vomiting. Coughing, sneezing, straining or movement increased the pain. He complained of painful muscle spasm in his neck and described an aching over 95 per cent of his body. While exercise helped with his mobility, he described pins and needles in all his limbs, his legs more than arms, and the left leg more than the right. He also described an electric shock-like feeling in his back. He reported a loss of libido but he denied any depression. He admitted that he was somewhat stressed. After reviewing the MRI and CT scans, all of which were normal, [NAME] determined that the plaintiff had suffered a soft tissue injury of a temporary nature. 120 3 November 2006 After discussing the plaintiff with [NAME], the [NAME] physiotherapist at this time, [NAME] noted that the plaintiff had been compliant with his treatment but that stiffness remained. [NAME] also noted that he discussed with the plaintiff the reports from his orthopaedic surgeon, [NAME], and an independent neurologist (presumably [NAME]) and that they had a "long discussion" regarding the possible reasons for his persisting pain with [NAME] suggesting pathology tests to exclude other causes. [NAME] also decided to trial the plaintiff on 25 mg of Endep, a tricyclic antidepressant used to treat depression and chronic pain.

121 6 November 2006 The clinical notes record that [NAME] discussed with him the progress of his condition as it affected his ability to work. No examination was conducted and no note made of the degree of pain or disability the plaintiff was experiencing. 122 8 November 2006 After a scheduled review [NAME] noted that while the prescribed dose of OxyContin, Valium and Endep should be maintained, that OxyContin and Valium should be reduced when possible, since they were contributing to the [NAME] fatigue. In the event that there was no improvement by the end of the year [NAME] proposed that the plaintiff participate in the Activate program, an intensive cognitive behavioural program at [COMPANY].

123 10 November 2006 [NAME] clinical notes record that the plaintiff commenced weekly hydrotherapy which was reported to be of some help but that he was receiving minimal help from physiotherapy. By this date [NAME] had also been informed of what I assume to be [NAME]'s views that the plaintiff did not fulfil the DSM-IV criteria for any psychiatric disorder. In a discussion regarding the best approach to controlling his pain [NAME] resolved to wean the plaintiff off Valium and, since he was tolerating Endep, increasing the dose to 50 mg. The plaintiff also complained of continuing erectile issues. [NAME] suggested a trial of Viagra. 124 17 November 2006 The clinical notes record that OxyContin was prescribed. There was no other note of the [NAME] attendance on this date.

125 20 November 2006 The clinical notes record that the plaintiff complained to [NAME] that the Endep was of little help in relieving pain, and that although it made him drowsy it prevented him from sleeping. [NAME] prescribed Stilnox for the plaintiff, and suggested acupuncture on his upper neck area.

126 24 November 2006 The clinical notes record that the plaintiff complained of ongoing pains and having not responded well to the acupuncture. [NAME] also noted that [NAME] reported that the [NAME] progress with his physiotherapy had begun to "plateau". He discussed the possibility of the plaintiff being admitted to hospital for two weeks for an intense pain management course. Repeat prescriptions of OxyContin and Digesic were issued.

127 1 December 2006 The plaintiff first attended on [NAME], a general practitioner practicing from [NAME]. Thereafter until the current time the plaintiff has attended on [NAME] at least monthly. In a report dated 15 February 2008 furnished to the [NAME] solicitors, [NAME] stated that the plaintiff had suffered "Soft tissue injury to the neck, shoulders, back and head – Post Traumatic Fibromyalgia Syndrome". (It would appear that was cited in reliance on [NAME] diagnosis in February 2007 since [NAME] was the referring doctor.)

128 Shortly after [NAME] accepted responsibility for the [NAME] care the plaintiff attended on [NAME], a physician in orthopaedic and osteopathic medicine, who he continued to see monthly until March 2008 for orthopaedic therapy.

129 15 December 2006 The plaintiff consulted [NAME], a specialist rheumatologist, on referral by [NAME]. The plaintiff informed the specialist, inter alia, that [NAME], his former general practitioner, was of the view that he had suffered soft tissue damage which should improve with time and that on resuming work in September he was only able to continue for four to five days before the symptoms became severe. He went on to say that in September he had developing pain in his shoulders, elbows and knees which he described as "like an arthritis feeling". He also described some stiffness in the morning and drenching sweats at night over the previous couple of months, accompanied with ongoing headaches and body aches. 130 On examination, [NAME] observed that the [NAME] gait and posture were normal, yet he complained of tenderness over almost every muscle group that was palpated, even to the lightest palpation. He noted that there was a full range of movement in all joints and there was no muscle wasting. [NAME] confirmed that there was no objective neurological abnormality in the [NAME] cranial nerves or the upper or lower limbs and was unable to detect any significant musculoskeletal or neurological abnormality. He reported to [NAME] that he could not find any significant disorder that could be related to the incident when the roller door struck the plaintiff on the head. 131 In cross-examination the plaintiff agreed that [NAME] had examined his entire body and that wherever the specialist's hand was applied he complained of tenderness. He also confirmed that he was able to move his knees, hips and shoulders normally.

132 Almost two months later, on 6 February 2007, the plaintiff attended on [NAME] on referral from [NAME]. 133 On examination at that time, [NAME] made the following observations: "…there was very profound muscle spasm in the trapezii, inner aspect of the right scapula and the erector spinae muscles of the lumbar spine. He had multiple trigger points numbering more than 11 in the upper and lower spine, sacro-iliac area, lateral aspect of the hips and inner aspect of the knees. There was diffuse tenderness in the muscles of each thigh more marked on the left side. Examination of all the peripheral joints was completely normal. He had a palpable liver edge but the spleen was not enlarged. There was no lymphadenopathy. His chest was clear and cardiovascular examination was normal. There were no objective neurological abnormalities".

134 After noting that radiological and other investigations ruled out any underlying pathology [NAME] made the following comments: "I would certainly agree that the most likely diagnosis is that of fibromyalgia...The condition has clearly occurred secondary to the incident in July 2006. Unfortunately the problem has spread to involve not only spinal muscles and areas but also muscle groups in the limbs. Luckily he does not have involvement of other muscle groups such as the small and large intestine".

135 He told the plaintiff that his prognosis was good but that it was "likely to take two to three years for his symptoms to settle to any significant extent". He noted, however, that it is quite possible he may never fully recover. 136 22 May 2007 The plaintiff attended upon [NAME], a physiotherapist, for the first of six treatment sessions on referral from [NAME]. On 30 July 2007 Ms [NAME] reported: "All active movements were extremely limited. Rotation L, R approximately 1/3 range.

Individual joint irritability was difficult to assess due to voluntary muscular spasm, however C3 and C7 levels were identified as extremely painful by palpation…".

137 18 June 2007 [NAME] examined the plaintiff and reported the results to [NAME]. He recorded that the [NAME] fibromyalgia symptoms continued and that he had very significant muscle spasm involving all three segments of the spine and at times affecting his limbs. [NAME] also noted that the plaintiff had very widespread muscle spasm and multiple trigger points in muscle groups which was particularly noticeable in his upper back and neck region. 138 18 October 2007 [NAME] examined the plaintiff and reported the results to [NAME]. He recorded that the recommended hydrotherapy was too aggressive, aggravating the [NAME] symptoms. He also noted that the plaintiff was "happy to be involved in any clinical trials of new therapy for fibromyalgia which is very helpful". 139 26 October 2007 The plaintiff attended on [NAME], specialist occupational physician. He complained of persisting spinal pain when using his arms and legs, that he was only able to stand for five to ten minutes at a time and could only walk for ten minutes, having to use a walking stick to support himself. He said he avoided going up and down stairs and experienced marked sleep disturbance every night, only sleeping for about two hours. He complained of persisting dizziness and headaches and was persistently fatigued. He had alternating diarrhoea and constipation. He had problems with concentration and memory, and could not drive.

140 On examination, [NAME] noted that all of the [NAME] movements were conducted in an active manner despite the examination inducing much passive movement, however the plaintiff had marked limitation of movement in the neck in all directions. He was also tender at the cervical spine and at many levels of the thoracic spine but had a normal range of movement in the elbows and wrists. The plaintiff reported tenderness to palpation of the lumbar spine with movement in the lumbar spine being markedly reduced as follows: Forward flexion – fingertips reached only to the upper patellar borders on both sides. Lateral flexion – fingertips reached only to the mid thigh on both sides. Extension was 10 degrees and rotation was limited at 25 degrees in both directions. Critically, so far as fibromyalgia is concerned, he had widespread tender points in all four body quadrants.

141 [NAME] considered the plaintiff as meeting the diagnostic criteria for fibromyalgia syndrome, being what he describes as axial pain in both upper and lower bodies, together with more than eleven of the eighteen standard tender points. He noted that: "Fibromyalgia may arise as a medical condition, but has also been described following trauma ie post-traumatic fibromyalgia syndrome. From the history given, it would appear that there was significant trauma from a falling object on to the head. Under those circumstances this would, in my opinion, be considered a post-traumatic fibromyalgia". Is the diagnosis of fibromyalgia established on the evidence and, if so, has the plaintiff discharged the onus of proving that it is causally related to the trauma he suffered when the roller shutter door struck him on the head? (i) The defendant's position on the question whether the diagnosis is available on the evidence

142 Despite gaining currency amongst rheumatologists, fibromyalgia remains a controversial diagnosis, largely it would seem, because there are no biochemical or biological markers to objectively support the diagnosis and, perhaps for that reason, because of concern at the potential for the diagnosis to be exploited by cynical claimants in support of claims for disability or damages. However, despite the rigorous cross-examination of [NAME] and [NAME] directed to raising questions as to whether the diagnosis is scientifically sustainable, in final submissions the defendant did not invite me to rule on the scientific efficacy of the diagnosis per se. Rather, the challenge was to the accuracy of the diagnosis reached by both [NAME] and [NAME] and for two reasons. First, for what were said to be deficiencies in the tender point examinations by both doctors and, second, because the [NAME] clinical presentation was said to be inconsistent with the usual presentation of a person who suffers from fibromyalgia (particularly in October 2007 when he was examined by [NAME]) given the extreme restriction in his bodily movement and his grossly compromised function. 143 I have already considered [NAME]'s views (and to a lesser extent [NAME]'s position) bearing upon the second question in the context of the characteristic features of fibromyalgia in [48] – [56] and rejected them. Since these views were the only source of evidence going to that issue, I am not persuaded that extreme restriction in bodily movement has any bearing on diagnosis of the condition. For that reason, I need only deal with the first basis upon which the accuracy of the diagnosis was challenged. 144 I was referred to the cross-examination of both doctors as to the tender point (or trigger point) examinations performed by them. I am satisfied that both doctors are experienced practitioners. Contrary to the defendant's submission, I am also satisfied that they utilised the appropriate classification criteria before making a diagnosis of fibromyalgia. They both identified a sufficient number of specified trigger points for diagnostic purposes in accordance with the approach endorsed by the American College of Rheumatology. I am also of the view that there is no substance to the suggestion that the four kilogram pressure point test cannot be reliably undertaken by the application of finger point pressure given [NAME] unchallenged and extensive clinical experience. As the cross-examination of [NAME] proceeded it was abundantly clear that he well understood that tender points are distinct and unique points in specified areas of the body being different in intensity and sensation to generalised tenderness. He gave evidence that he was able to discriminate between the [NAME] reaction to the palpation of a tender point and the application of pressure which elicited a complaint of generalised pain. He gave the following evidence: "Q. What I am suggesting to you is this, that in your consultation with this man, his presentation was such that if you had applied pressure being the same sort of pressure you were applying to look for a tender point to his outer thigh, you would have received a complaint of pain? A. I disagree Q. Did you try that? A. The tenderness that I have reported is in the spine, along the spine, not everywhere in the body as you are implying. I don't say that. I say widespread tender points. I refer there to the 18 standard tender points, not everywhere in the body, just the 18 standard points. Q. Is this what you did, that to examine him for tender points you went to the points? A. Correct. Q. As they are designated? A. Correct. Q. Did you go to other areas of his body to see what response you might have elicited by applying the same pressure? A. No, I did not." 145 I am satisfied that the fact that the plaintiff was examined by both doctors for generalised tenderness, and that the plaintiff complained of generalised tenderness, did not undermine the accuracy or reliability of the diagnosis of fibromyalgia. As [NAME] made clear in his evidence, patients with fibromyalgia are usually tender in many areas of the body, apart from the trigger point areas. (I note that [NAME] also found the plaintiff to be experiencing widespread tenderness and hypersensitivity to the extent that he was unable to localise to individual trigger points. However, it was not submitted by the defendant that [NAME] was attempting a diagnosis of fibromyalgia in that examination, and I do not read his report that way.) 146 In the result, I am satisfied that there was nothing in the clinical examination or assessment of the [NAME] function by either [NAME] or [NAME] to undermine the reliability of their independent diagnoses of fibromyalgia, and nothing otherwise in the evidence to cause me to doubt that the diagnosis is available as an explanation for the [NAME] condition. The question remains whether the plaintiff has established that it is more probably than not the explanation for his disabling condition and that it was the result of the trauma he suffered when he was struck on the head. (ii) The defendant's position as to whether trauma materially contributed to the onset of fibromyalgia 147 The defendant further submitted that even accepting that [NAME] and [NAME] diagnosed fibromyalgia which, in their opinion, was caused by trauma, when consideration is given to all the medical evidence I would not be satisfied that the diagnosis of trauma-based fibromyalgia is established in this case where various of the defendant's [NAME] are of the view that the [NAME] subjective experience of disabling pain and his severely compromised function is more likely explained, or as likely explained, as abnormal pain behaviour of an unknown or uncertain origin, with an overlay of exaggeration. This, it was submitted, follows from the fact that notwithstanding the very considerable research into fibromyalgia and its causes in recent years, the current state of medical knowledge is such that the definitive cause of the condition is unknown. The fact that there is even at this time only a limited understanding of the complexities associated with the onset of the condition dictates that caution be exercised before ascribing any particular cause to the condition. That said, the defendant did not challenge [NAME] evidence that the medical literature is full of references to trauma-based fibromyalgia in circumstances where there were no symptoms consistent with the onset of fibromyalgia before the traumatic event (albeit with symptoms appearing at the time of or soon after a person suffered trauma). Moreover, it was not suggested to [NAME], or to [NAME], that the incidence of trauma relative to other possible causes of the condition is rare, or that the site of the trauma the plaintiff suffered, or the kind of trauma he suffered, has any bearing on the onset of the condition or its severity. 148 The defendant accepted that the evidence established that trauma may cause fibromyalgia but submitted that to attribute trauma as the cause in this case, the plaintiff was required to establish that fibromyalgia can be caused by trauma, and that he has failed to do so when the evidence went no further than identifying trauma as one of a number of possible causes, ranking no higher than other possible explanations for the onset of the condition. 149 The defendant submitted that before it is open to find a causative relationship between the trauma the plaintiff suffered in July 2006 and the diagnosis of fibromyalgia in February 2007, I would need to be satisfied that the particular trauma suffered by the plaintiff preceded the onset of the condition not merely temporally, in the sense that he experienced pain and sensitivity in his neck and shoulders after being struck by the roller shutter door, but that for diagnostic purposes the evidence established that trauma was "sufficiently close and sufficiently frequently" to the onset of the condition. The defendant submitted that the plaintiff had failed to establish a sufficient nexus in these terms. 150 In support of that submission I was referred the judgment of [NAME] in [NAME] of Australia Ltd v Fernandez (1976) 10 ALR 303. I was also referred extensively to the judgment of [NAME] in the Court of Appeal in the same case ([NAME] v [NAME] of Australia Ltd [1975] 2 NSWLR 190). [NAME] concerned a worker who had suffered an injury to his right hand in the course of his employment. Eight months later, a specialist plastic surgeon diagnosed Dupuytren's contracture, a condition in which one or more fingers curl into a fixed position against the palm of the hand. The plaintiff gave evidence that before the injury his hand operated normally but that after the injury it grew progressively worse. The specialist gave evidence that the condition could be caused by trauma, without providing any aetiological evidence to support the conclusion that the particular injury the worker suffered had probably set in motion a chain of anatomical and physiological events which culminated in the condition. The trial judge declined to find that there was no case to answer on the issue of causation. The [NAME] returned a verdict in the worker's favour. By majority, the Court of Appeal dismissed the appeal being satisfied that there was evidence on which the [NAME] could find that the injury suffered by the worker caused Dupuytren's contracture. 151 In reaching that view [NAME] identified two questions which he described as the causality questions. The first was whether trauma of the relevant kind was a possible cause of Dupuytren's contracture, and the second, whether it was the actual cause of that condition in the case under consideration.

152 In considering the first question he noted that the medical knowledge concerning the way in which Dupuytren's contracture occurred did not admit of a definitive cause, in the sense that trauma did not always result in the presentation of the condition or of symptoms associated with it. (Such is the state of the evidence so far as the association between trauma and fibromyalgia is concerned.) The specialist did however express the opinion that trauma was a possible cause of the condition since the medical literature showed that the condition had been preceded by certain events or circumstances "sufficiently closely and sufficiently frequently" to warrant the inference being drawn, from a medical perspective, that each of the events or circumstances was a cause of the condition. At 199 [NAME] said: "…In my opinion, it was open to the [NAME] to infer that what the witness meant by referring to such trauma as a possible cause of the condition was in effect this: we do not know exhaustively how the condition (the alteration in the fibrous tissue underlying the skin of the palm and the resulting condition of the hand) comes about, but medical literature shows that the condition has been preceded by certain events or circumstances, and these events and circumstances have preceded the onset of the condition sufficiently closely sufficiently frequently to warrant the inference by medical [NAME] that each of the events or circumstances is a cause of the condition. This mode of reasoning as to the existence of a possible cause, inductive though it be, is in my opinion, accepted as a sufficient basis for the expression of an expert opinion that the particular events or circumstances may be the cause of the condition and, with exceptions not here relevant, once an expert in the field is prepared to express the opinion that the conjunction between the events or circumstances and the onset of the condition is sufficiently close sufficiently frequently , then such an opinion is evidence upon which the [NAME] may accept that the relevant event or circumstance is a possible cause of the condition. In the present case, the [NAME] could, in my opinion, accept that the [NAME] medical witness was of the relevant opinion, and could, therefore, accept that the injury that the plaintiff suffered was a possible cause of his condition." (emphasis added) 153 As to the second question his Honour said: "… The question remains whether, accepting that the trauma was a possible cause of the condition, it was open to the [NAME] to infer that, in this case, it was the actual cause of it. The evidence, or the process of reasoning, sufficient to warrant this conclusion may, again, vary with the circumstances of the case. However, before the possible cause, the trauma, can in this particular case be inferred to be the cause of the condition, the cause must be related to the condition, not merely temporally, but "sufficiently closely" . If the condition appeared the day after the occurrence of the possible cause, then, though that appearance might be a coincidence, it would normally be open to the tribunal of fact to conclude that the possible was the actual cause; if the condition appeared only some months after the possible cause then it may well be not open to draw that conclusion. In this kind of context, there must, in my opinion, be afforded to the [NAME] some scope of an inductive conclusion. The state of medical skill may be such that it can be said by the expert that, if the condition occurs after such and such a period, then the possible cause is to be excluded as the actual cause in the particular case. But where, as in the present case, this cannot be done, then, if a possible cause occurs sufficiently closely related to the condition, the [NAME] may draw the inference of causal connection." (emphasis added) 154 The appeal to the High Court was also dismissed. The judgment of the majority was delivered by [NAME]. After reviewing the facts his Honour was satisfied that the specialist's evidence left it open to the [NAME] to infer, on the probabilities, that the injury caused or materially contributed to the occurrence of the condition. He also expressed the view that in drawing an inference of this kind the [NAME] were entitled to have regard to other circumstances in addition to the specialist's opinion, namely that before the accident the worker suffered no disability in his right hand, that the condition made its appearance shortly after the accident, and that no alternative cause was established, or indeed suggested, in the evidence. In his Honour's view the combination of these circumstances, taken together with the expert evidence, provided a sufficient basis from which the [NAME] could draw an inference favourable to the worker. 155 The part of the judgment upon which [NAME] placed particular reliance was the consideration his Honour gave to the observations of Taylor J in Australian Iron and Steel Ltd v Connell (1959) 102 CLR 522 where his Honour observed that for the plaintiff to make out a case on the issue of liability it is not sufficient to prove that a particular circumstance or event may (which I take to mean might) have been a material contributing factor, even where there is a temporal connection between the event and the injury, what has to be established is that the particular circumstances or event was in fact a materially contributing factor. [NAME] submitted that in this case it is not enough that I am satisfied that trauma is a possible cause of fibromyalgia, and that the blow to the [NAME] head may have materially contributed to the onset of the condition, I would need to be satisfied that it probably did have that effect and that on the evidence I would not reach that level of satisfaction. 156 I was also referred to Seltsam where the Chief Justice observed that in circumstances where the aetiology of a disease is uncertain or subject to significant scientific dispute, the courts are not disenabled from deciding causation on the balance of probabilities. Before referring expressly to the two causation questions identified by [NAME] in [NAME], his Honour noted at [94] the observations of Herron CJ in [COMPANY] v [NAME] [1970] 2 NSWR 238: "Medical science may say in individual cases that there is no possible connection between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be a touchstone, then the judge cannot act as if there were a connection. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connection that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try." 157 [NAME] submitted the following facts are established by the evidence which, in combination, undermine the reliability of the diagnosis of trauma-based fibromyalgia when the causality questions identified by [NAME] are posed: (a) Between July and December 2006 [NAME] clinical notes consistently record relatively mild symptoms of pain and only a marginal compromise in the [NAME] range of movement and function which is more consistent with a soft tissue injury than the gathering onset of symptoms of fibromyalgia.

(b) Under appropriate treatment and advice from [NAME], including referral for physiotherapy and remedial massage for pain relief, the [NAME] pain levels reduced and his function gradually improved.

(c) In December 2006 [NAME], a highly regarded specialist in rheumatology, did not diagnose fibromyalgia when the plaintiff consulted him, soon after [NAME] had assumed responsibility for the [NAME] care as a general practitioner. This, it was submitted, was a state of affairs in stark contrast to [NAME] diagnosis of fibromyalgia two months later, and [NAME] diagnosis six months after that, for which there was no adequate explanation in the evidence.

(d) From the time the plaintiff sought alternative advice and treatment from [NAME] in December 2006 up to his first consultation with [NAME] in February 2007, the [NAME] widespread complaint of pain and compromised physical function became significantly worse. He was at this time subject to environmental and/or psychosocial stressors of various kinds unrelated to any continuing effect of the single episode of trauma when he was struck by the roller shutter door on either his physical or psychological functioning. 158 In so far as (a) and (b) are concerned the defendant accepted that the [NAME] narrative account of his pain levels and compromised function recorded in his journal is at variance with [NAME] clinical notes, and that the clinical notes are also at variance with reports of some other clinicians to whom the plaintiff was referred by [NAME]. The defendant also accepted that the clinical notes are inconsistent with the account the plaintiff gave in evidence as to the level of pain he experienced and the extent of limitation on his function in the days, weeks and months that followed the trauma to his head. The defendant submitted, however, that I would be satisfied that [NAME] notes are a more reliable source of the [NAME] actual condition over the course of the eight months prior to [NAME] diagnosing fibromyalgia in February 2007, and that they cast considerable doubt on the reliability of that diagnosis. The defendant also emphasised that no objection was taken to the tender of the clinical notes and [NAME] was not called by the plaintiff to explain or clarify their content. In addition, it was submitted that the plaintiff only disputed the accuracy of [NAME] notes where they were adverse to his case and that it was only in re-examination that he sought to impugn the treatment given by [NAME] by referring to the longest consultation being ten minutes in length and the shortest two or three minutes. 159 In short, it was submitted that no weight should be given to the [NAME] journal, his evidence, the evidence of his wife and father or what he reported to other professionals concerning his levels of pain and associated disability between July 2006 and February 2007, where those accounts are inconsistent with [NAME] notes and inconsistent with the findings of [NAME] on 23 October 2006, that the plaintiff had no discernible muscle tenderness or stiffness. When coupled with [NAME]'s findings in December 2006 that the plaintiff had tenderness over every muscle group palpated under the slightest pressure without a diagnosis of fibromyalgia being made, the defendant submitted that some other explanation for the [NAME] condition was called for. 160 In so far as (d) is concerned the defendant submitted that stress is gaining ground and credibility as an alternate cause of fibromyalgia amongst leading researchers into the condition and, having regard to the evidence, it cannot be excluded as a competing and independent cause of the condition in this case. The defendant sought to persuade me that the most pronounced intensification of the [NAME] experience of pain, and the most rapid deterioration in his capacity to function, was when he was confronted with [NAME] stressors relevantly unrelated to its negligence after his return to work in early 2007. Further, his condition has progressively declined without abatement after he accepted a redundancy in April 2007. The defendant also sought to draw a causal link between the stress associated with the [NAME] erectile dysfunction in September 2006 and either a dramatic escalation in his levels of pain and disability at that time or the fresh onset of the complaint of pain and disability since that time. 161 In addition to the reliance placed upon the accuracy of [NAME] notes and the views of [NAME] and (inferentially) [NAME], that a soft tissue injury of a temporary and improving nature is the more probable or equally likely diagnosis, the defendant also relied upon reports furnished by various medical [NAME] in 2008 and 2009 which also raise doubts about the reliability of the diagnosis of fibromyalgia, or at least the need for a differential diagnosis. 162 On 28 July 2008 the plaintiff saw [NAME], psychiatrist, who reported that the plaintiff had developed a chronic pain disorder associated with psychological factors that played an important role in the severity, exacerbation and maintenance of his pain. He said that he would defer to a specialist in rheumatology as to the presence of fibromyalgia because, in his experience, patients with fibromyalgia may also be experiencing a chronic pain syndrome with somatisation, an alternative diagnosis to fibromyalgia. Additionally, they may also suffer from a dysthymic disorder or generalised anxiety disorder. In [NAME]'s opinion, however, the plaintiff did not satisfy the diagnostic criteria for a major depressive episode, dysthymic disorder or generalised anxiety disorder. He also noted an absence of significant underlying pathology on psychological testing.

163 [NAME] concluded that from a psychiatric perspective the [NAME] presentation was consistent with a chronic pain syndrome, but added the caveat that: "…he has developed marked avoidant and dependant characteristics. The possibility of exaggeration of his presentation could not be categorically excluded…

From a DSM-IV perspective ([NAME] demonstrates) a chronic pain disorder with psychological factors".

164 On 8 August 2008 the plaintiff saw [NAME], a practitioner in occupational and environmental medicine, at the request of the [NAME] workers compensation insurers. His report was tendered by the defendant. He reported very high level pain behaviours noting that the plaintiff walked with a creeping gait and used a walking stick, that he had to stand frequently through the consultation and that when seated he sat very rigidly. He found no evidence of upper or lower limb wasting, swelling, redness, ganglion or sudomotor or vasomotor changes. He noted, however, that the plaintiff resolutely refused to move any part of his spine, that the range of movement in his back and lower back were zero in all directions, that there was tenderness over the entire spine, over the sacroiliac joints, over the trapezii with associated global tenderness of the shoulders extending down the arms to the elbows and in the legs down to the knees. He was unable to obtain any upper or lower limb reflexes as the plaintiff sat so rigidly. Straight leg raising was 0. [NAME] did not attempt an assessment of the [NAME] passive range of movement. Despite the fact that the plaintiff appeared to be genuinely distressed [NAME] commented that the [NAME] pain behaviours were so florid it was very difficult to determine whether there was anything genuinely wrong with him. On the basis of the history provided, clinical examination and imaging he concluded that the plaintiff suffered from: + "Pain behaviour + Persistent neck pain of unknown or uncertain aetiology + Persistent thoracic pain of unknown or uncertain aetiology + Low back pain of unknown or uncertain aetiology".

165 He could not completely exclude malingering, which is defined by the American Medical Association Guides and Evaluation of Permanent Impairment Fifth Edition as: "A conscious and wilful feigning or exaggeration of a disease or effects of an injury in order to obtain specific external gain. It is usually motivated by external incentives, such as receiving financial compensation, obtaining drugs, or avoiding work or other responsibilities". [NAME] concluded that malingering must be included as part of a differential diagnosis. 166 On 5 March 2009 the plaintiff attended a joint examination with [NAME], neurologist, and [NAME], neuropsychologist, again at the defendant's request. They observed that the [NAME] limbs had normal muscle tone, but that his overall posture was held "extraordinarily stiffly", particularly in the neck and back. While there was less than 5 degrees of rotation in the neck in either direction, flexion and extension movements were normal. Lateral flexion movements were only about 10 degrees. When the plaintiff was asked to attempt to bend at his waist there was an almost imperceptible movement. [NAME] noted as follows: "…I asked him to attempt to stand on his tiptoes. His heels rose only a few millimetres to clear the floor and he said that he had a bad spasm in his back. His gait was very slow, cautious and guarded. The reflexes were symmetrical, with normal reactions and downgoing plantar responses".

167 [NAME] concluded that the [NAME] apparent disability and complaints on a physical basis appeared to be out of keeping with the initial injury. He reported that: "…In general, physical injury to tissue whether it is soft tissue, joint or even neurological tissue such as the spinal cord is worse immediately after the injury or soon afterwards, and does not normally follow the tempo of worsening over time. Given this contrary tempo, the disproportionality of reported problems to the apparent initial injury, and the abject failure of [NAME] to respond to any treatments, I am of the opinion that abnormal illness behaviour, exaggeration and malingering have to be considered high in the list of differential diagnoses in this case".

168 I have already considered the views of [NAME], a consultant physician in rehabilitation medicine and musculoskeletal medicine, after his examination and assessment of the plaintiff at [52] – [56].

169 [NAME] also noted what he described as "a major inconsistency": "(with) the development of severe pain and such gross disability following a knock on the top of the head which was not sufficient at the time to cause a cut on the scalp, nor to knock the injured person over, nor to cause even a swelling on the scalp…"

(I note that he is in error so far as his understanding that the plaintiff did not fall to the floor.) 170 He went on to say: "The inconsistency between the presentations in late October 2006 (to [NAME]), with the absence of any tenderness on 15 October (to [NAME]), yet the widespread hypersensitive tenderness only 7 weeks later (to [NAME]) is remarkable.

…

There is inconsistency between his slight/mild disability during the first few months after injury (as per [NAME] clinical notes), in contrast to his current severe disability. It is inconsistent that this apparent deterioration has occurred in the absence of objective abnormal neurological signs or structural change." 171 He was of the view that the [NAME] presentation was consistent only with somatisation symptoms secondary to emotional stress, anxiety, depression and other psychosocial factors. He went on to diagnose a chronic pain syndrome together with what he described as "altered pain mechanisms and pain tolerance associated with opioid-like narcotic drugs, and dependency for the past three years".

172 In closing submissions [NAME] accepted that on a considered reading of his report [NAME] did not address the question of whether the trauma to the [NAME] head caused or materially contributed to the diagnosis of a chronic pain syndrome, save as to note that the symptoms the plaintiff presented with during the first two to three months were attributable to the incident on 10 July 2006. In relation to his gross symptoms and apparent physical disability, which he considered did not develop until three months later, he commented that: "…these cannot be due to the incident if we are considering physical/mechanical factors. If his symptoms and apparent disability are due to psychological factors, then there is still the necessity to explain the delay of 3 months before onset of the gross symptoms and disability. This lies within the expertise of Psychology and Psychiatry". 173 In this regard, he noted the report of clinical psychologist, [NAME], who stated that the plaintiff did not meet DSM-IV criteria for any psychological disorder. He also noted the report of [NAME] who evaluated the plaintiff as demonstrating a chronic pain disorder with psychological factors and agreed with the observation of [NAME] that the plaintiff appeared to be genuinely distressed. He also concluded that malingering must be included as part of a differential diagnosis.

174 The defendant submitted that having regard to all the evidence, and in particular the untested views of the defendant's doctors, I would simply not be persuaded that the defendant's negligence caused or materially contributed to the onset of fibromyalgia first diagnosed in February 2007 (or to any other generalised pain condition from which he suffers) such as might explain his current disabilities.

The [NAME] position as to whether trauma materially contributed to the onset of fibromyalgia 175 [NAME] acknowledged that there are discrepancies between [NAME] clinical notes and the [NAME] journal on the one hand, and between the journal and the reports of some of his treatment providers on the other. He submitted, however, that these discrepancies should not be interpreted adversely to the plaintiff in circumstances where the content of [NAME] clinical notes (at least up to September 2006 when the [NAME] progress was reviewed at weekly intervals) are capable of being explained by the fact that in the absence of any evidence of structural or neurological damage, [NAME], as a general practitioner, simply misdiagnosed a soft tissue injury from which he expected the plaintiff would recover when, in reality, the [NAME] underlying condition required assessment, management and treatment by a specialist rheumatologist.

176 In addition, [NAME] emphasised that the variation in the [NAME] presentation to various clinicians over the eight months prior to being diagnosed by [NAME] in February 2007 is part of the accepted clinical picture of those who suffer from fibromyalgia, and, in any event, when closely analysed there was a marked degree of consistency in the [NAME] presentation over this time frame. 177 In dealing with the report of [NAME] submitted that the fact that he did not diagnose fibromyalgia in December 2006 does not mean that the diagnosis was not available since it is not clear whether when he reported that he could not find any evidence of a physical disorder or any musculoskeletal or neurological abnormality in the cranial nerves, upper or lower limbs, he was considering a diagnosis of fibromyalgia at all. I was also reminded of [NAME] evidence in cross-examination where he noted that when [NAME] reported a full range of movement in all of the [NAME] joints (in contrast to [NAME] finding in February 2007 that there was a limited range of movement in all of his joints) it was not clear whether in reporting in those terms he was including the peripheral joints and the cervical, thoracic and lumbar spine which, in [NAME] opinion, is a distinction that is usual for reporting purposes. Were there a full range of movement in the cervical, thoracic and lumbar spine, [NAME] concluded that might be significant but that was not a conclusion he could readily or safely draw from the terms of the report. 178 The questions that fairly arise on the tender of [NAME]'s report, including the reason for [NAME] referral of the plaintiff at all when he was within weeks referred to [NAME] and where both clinicians share a specialist discipline, again points up the desirability of [NAME] giving their evidence concurrently. Having heard from [NAME] in evidence I am unable to accord [NAME]'s report the weight contended for by the defendant. 179 It was also submitted by [NAME] that although some of the defendant's [NAME] who furnished reports in 2008 and 2009 expressed concern that malingering or exaggeration might be present, they did not opine that this was the only explanation for his poor presentation, only that its impact could not be wholly discounted. [NAME] did not challenge the correctness of a differential approach to the diagnosis of fibromyalgia. He submitted, however, that when regard is had to the whole of the evidence malingering or exaggeration has been discounted in this case and further, that the extreme nature of the [NAME] disabilities and their worsening tempo is simply another feature of the way the condition manifests. 180 [NAME] also submitted that the defendant has sought to create a disconnect between the trauma and the onset of the condition and its diagnosis by a singular reliance on [NAME] clinical notes and that, on a careful analysis of the notes in the context of all the evidence, that disconnect is simply not borne out as a matter of fact. Furthermore, so it was submitted, the evidence simply does not support a finding that the plaintiff has at any time deliberately exaggerated his pain levels or his disabilities, either in consultation with his own treating specialists, the medical practitioners he has attended upon at the request of the defendant for the purpose of this litigation, or in his evidence in the proceedings. It was submitted that I would be impressed by the [NAME] evidence, particularly under cross-examination, when he volunteered what I would be satisfied was a genuine desire to be either pain free, or to be able to effectively manage his pain so as to resume a position as a productive member of the workforce and to provide for his wife and family. [NAME] also submitted that far from the incident at the airport in July 2006 being exploited by the plaintiff in the short term to ensure receipt of workers compensation payments, or for it to have been utilised to provide a long term financial solution following his redundancy in April 2007, I would be satisfied that prior to the incident he was an ambitious, industrious, socially confident and productive [NAME] who had neither the disposition nor the incentive to malinger or overstate his disabilities, and that he has not done so. 181 [NAME] submitted that it is not to the point for the defendant to emphasise the deterioration in the [NAME] condition between March and April 2007, as he sought to deal with an [NAME] and cope with the realities of his tenuous employment, where the causal link between the defendant's negligence and the progressive onset of symptoms of fibromyalgia was otherwise forged by the overwhelming weight of the evidence. 182 In so far as it was submitted by the defendant that I should draw an adverse inference from the plaintiff seeking alternate advice and treatment from [NAME] in December 2006, [NAME] submitted that I would be comfortably satisfied that as the months passed after the plaintiff suffered the blow to his head he became increasingly (and again understandably) frustrated with his treatment under [NAME] and the slow pace of his recovery. He was also becoming increasingly (and understandably) concerned at this time about what he was experiencing as entrenched and increasing levels of pain and discomfort which had not only interfered with his overseas family holiday in August 2006, but, despite his desire to resume full-time work on his return, also forced him to retreat to home-based work after returning to his place of work for only a few days. From that time, and over subsequent weeks and months, so it was submitted, the lack of medical insight into his condition, and the fact that it was not improving but worsening, caused him distress, frustration and disillusionment which in turn impacted adversely on his social and emotional life. He also submitted that the evidence did not support the conclusion that the [NAME] erectile dysfunction in September 2006 was an overwhelming or independent source of stress, either at that time or thereafter, as distinct from it being simply another manifestation of the [NAME] generalised stress and anxiety in having to cope with daily pain, for which there was no ready explanation, and his frustration when, despite his commitment to seek out and act on all available medical insight and advice, his condition was not improving. 183 I was invited to find that it was this state of affairs that ultimately persuaded the plaintiff to seek advice from [NAME], a general practitioner who had been recommended to him by a family member, and not that he sought out [NAME] to provide a more compelling diagnosis of serious injury. It was further submitted that there was no evidence to support the submission that the plaintiff "shopped around" for a doctor who would be compliant with his intention to deliberately resist the treatment that [NAME] had proposed, or that he was in search of a diagnosis that would support a claim for compensation after his employment was terminated by redundancy. 184 The plaintiff submitted that despite there being no objectively verifiable cause or explanation for the range of the [NAME] disabilities, or for the chronic pain he suffers on a daily basis, his condition has been amply shown to be causally related to the defendant's negligence in accordance with s 5B(1) of the Civil Liability Act and established common law principles. [NAME] urged me to take a pragmatic and robust approach to proof of causation which he submitted would easily satisfy me that the probabilities favour a finding that the defendant's admitted negligence caused or materially contributed to the traumatic injury triggering the onset of fibromyalgia. 185 In so far as the two causality questions identified by [NAME] in [NAME] are concerned, [NAME] submitted that the evidence established not only that trauma is a possible cause of fibromyalgia but that the evidence enables the inference to be safely drawn that it was in fact caused by trauma in this case.

Resolution of the issue of causation

186 [NAME] cross-examined the plaintiff at length about reporting to [NAME] in October 2006 that he suffered daily headaches, when it was suggested to him that he had not complained to [NAME] about headaches at all in July, September or October 2006, there being no record in the clinical notes of a complaint of that kind. It was also put to him that this was in keeping with his determination generally to overstate the sequelae of the trauma to his head. 187 The assertion that the plaintiff did not suffer headaches of any constancy or severity after the trauma to his head is contradicted by the [NAME] evidence, his wife's evidence, his journal and his reports to other treatment providers. More importantly, however, the suggestion that he did not complain of constant headaches is in direct conflict with the Workcover certificates dating from July 2006 signed by [NAME]. To the extent that the defendant's submission that the plaintiff has deliberately overstated his symptoms is said to be exemplified by the fact that he claims to have suffered constant headaches when [NAME] does not report the complaint, the submission is rejected. I am satisfied that it is contradicted by the overwhelming weight of the evidence as reflected in the chronology. 188 The contradiction between the content of the clinical notes and the Workcover certificates on the issue of headaches also raises serious questions in my mind about the completeness and accuracy of [NAME] clinical notes in other material respects.

189 The issue of the [NAME] headaches, raised pointedly by the defendant in an attack on his credit, also provides the context for assessing the weight to be afforded the extracts from the [NAME] diary since he notes headaches of some severity in many of the entries extracted for the purposes of the tender. 190 I am satisfied that the [NAME] journal was commenced and maintained at a time when the current litigation was not in contemplation, and was most likely prepared for the purposes of pursuing his workers compensation rights. It could not be seriously suggested (and was not) that the plaintiff could have anticipated the intricacies of legal argument bearing upon the question of causation in these proceedings, or that he deliberately set out to create a false record of his experience of pain and generalised disability so as to contradict [NAME] notes. When the diary extracts are read in the context in which they were written, and their content considered both in light of the [NAME] presentation to a range of treatment providers up to and including October 2006, and his evidence in the proceedings which I consider to have been given truthfully and without embellishment or exaggeration, I am satisfied that the journal entries should be accepted as a reliable and largely contemporaneous account of the [NAME] actual pain levels and the extent of his compromised function up to October 2006. 191 The defendant placed considerable reliance on the accuracy and reliability of [NAME] clinical notes as a record of the [NAME] presentation with mild to moderate muscular spasm and achiness and stiffness as late as September 2006, followed by a marked decline in his condition after that time, to support what is said to be the disconnect between the trauma and his chronic pain. In fact [NAME]'s report assumed that to be the case. The evidence does not make clear why Tramal, an opioid analgesic, would be prescribed by [NAME] on 8 September for mild to moderate pain. I note that Tramal was first prescribed before the [NAME] erectile dysfunction in late September 2006 and that it continued thereafter until the plaintiff was prescribed OxyContin on 13 October 2006, also an opiate based drug of considerable intensity. 192 In addition, [NAME] note of mild to moderate pain also leaves unexplained the contrary reports of two independent treatment providers the plaintiff consulted between July and October 2006, namely [NAME] and [NAME], (see [84] and [103]). I am satisfied that the pharmacological regime of opiate based analgesic instituted by [NAME] and the [NAME] referral for other radiological and electromagnetic investigation can only be rationally explained by the fact that the plaintiff was presenting with unresolved and chronic pain and that [NAME] notes are simply an inaccurate, incomplete or shorthand way of describing it. The opiate based medications prescribed by [NAME] from time to time are also noted but not the reason for prescribing them. 193 It is also significant, as I see it, that the clinical notes do not indicate that the plaintiff was examined by [NAME] after 26 September 2006 (the date he was referred to [NAME] for specialist assessment) and do not record the [NAME] report of pain or dysfunction to other specialists from that time until his treatment ceased in December 2006. By contrast, the notes do record the fact of the [NAME] attendance on a variety of specialists and [NAME] discussions with him about ways of managing his pain. I am persuaded that in the course of these three months the evidence compels the conclusion that the [NAME] condition, allowing for some acceptable variation in his presentation to various consultants and treatment providers, was one that was both generally consistent and one that progressively but gradually deteriorated and that his pain and disability was as he described it in his journal up to that time. 194 In summary, having regard to all the evidence I am satisfied that the first appearance of what proved to be symptoms of fibromyalgia presented and developed over the course of days to weeks after the plaintiff was struck on the head by the roller shutter door. After making due allowance for some variation in the spread, degree and intensity of pain in the [NAME] thoracic, lumbar and cervical regions I am also satisfied that since that time there was a consistent presentation of symptoms of the condition (albeit undiagnosed) for eight months. I am satisfied that such differences as there were in the [NAME] presentation to [NAME] and [NAME] are explained by the acknowledged variability in the levels of pain and dysfunction of a person who suffers from the condition. 195 Having regard to all the evidence and the principled approach to resolving the question of causation posed by this case, I am satisfied that the defendant's negligence materially contributed to the condition from which the plaintiff suffers and that he is a genuine claimant for damages.

Prognosis The [NAME] case

196 Some of the [NAME] relied upon by the plaintiff on the question of causation also expressed opinions about the [NAME] likely prognosis and the various proposals for the treatment and management of his condition in the future. 197 [NAME] accepted that in early 2007 [NAME] considered that the [NAME] prognosis was good and that it was hoped that the condition might resolve within three years. He also drew my attention to the fact that at that time the plaintiff was still being managed on sustained doses of OxyContin and certified as unfit for full-time work by [NAME]. The plaintiff also gave evidence that after sustained periods working at the computer screen in the home environment leading up to his attempt to return to work in early 2007, the quality of his work output suffered because of headaches, nausea and vomiting. That said, I note that he was able to achieve a work output commensurate with his employer's expectations, taking into account his injuries and the necessity for him to work from home. 198 [NAME] initial optimistic projections, the [NAME] case at the time of the hearing was that his condition has progressively deteriorated, such that four years after the injury his prognosis is now considered poor. It was submitted that his participation in the Activate pain management program from August 2008, designed to facilitate his re-entry to the work force, and his concerted endeavours to manage his chronic pain by other means, has not altered this prognosis or improved his employment prospects. 199 The nature of his participation in the Activate program and his regular reviews by the managers of that program (the most recent being in May 2009) are relied upon by the plaintiff in the assessment of damages on two bases. The first to support the submission that his claim for future economic loss should be calculated on the basis that he is permanently incapacitated such that his future earning capacity is nil. This, it was submitted, is also supported by the comprehensive assessment of the plaintiff undertaken in March 2009 by [NAME], an occupational therapist. She reported a gross level of functional compromise and restriction to the extent of the plaintiff being unable to attempt a single leg standing balance or a squatting position or to hop, climb run or jump. She also reported that he was unable to maintain a sitting position for more than five minutes without the need to recline on a couch and was only able to transfer from sitting to standing when he was supported by a table or walking stick. While the plaintiff was observed walking indoors she reported that at the time of assessment his pain prevented him from venturing outside although he reported walking to the letterbox, a distance of 50 metres, approximately once a week. [NAME] observed that the plaintiff was highly focused on his pain with no observed differentiation between his movements and abilities throughout the course of the assessment. 200 The most recent report from the director of the Activate program is also said to be supportive of the [NAME] claim to be compensated on the basis of his permanent incapacity given that his level of disability due to pain (albeit based upon self-report), had not improved at the six month review date, and that during the active phase of the program his pain levels increased dramatically. Similar results were reported in regard to depression, anxiety and stress, also on the basis of self-report. By contrast, there were dramatic reductions in the [NAME] fear or avoidance of movement during the active phase of the program and an increase in his perception of his ability to accomplish a range of activities despite pain at the six month follow-up. 201 The plaintiff submitted that it is no answer to the defendant's liability for damages associated with the diminution in his earning capacity in the future to trace the deterioration in his condition, and/or the revised prognosis of his treating specialists, to the negative effects of the [NAME] environment leading up to his employment being terminated in April 2007 given that the diagnosis of fibromyalgia predated that exposure and the general consensus amongst the [NAME] is that the condition is aggravated by stress. In addition, [NAME], psychiatrist, reported in May 2008 that the plaintiff had developed a depressive reaction, that is a non-melancholic depression, as a consequence of what he described as the [NAME] "significant physical debilities" which, together with antidepressant medication for his psychiatric condition required an intensive and pluralistic program managed by a pain specialist.

The defendant's case 202 The defendant submitted that the evidence established that fibromyalgia is unlike other disabling medical conditions where a [NAME] prognosis is able to be assessed with some degree of certainty by objectively verifiable methods of testing, including an evaluation of compromised function. Although the defendant accepts that the extent to which the [NAME] function is diminished by pain is susceptible to clinical evaluation, the nature of fibromyalgia is nevertheless such that pain levels vary significantly with sufferers having what are described, colloquially, as "good days and bad days". It is submitted that I should view [NAME]'s report as qualified in that way and conclude that the [NAME] condition on the day of her assessment is not a reliable indicator of the level of his disabilities for the purpose of a calculation of damages. The defendant also relied upon the opinions of [NAME] and [NAME] to the effect that the litigation might itself aggravate the [NAME] condition, and to [NAME] evidence that the finalisation of the litigation is likely to be beneficial to the plaintiff. 203 The defendant sought to impress upon me that researchers into the condition, and those who treat the condition, have the shared experience that the severity of symptoms of fibromyalgia are not only ameliorated by a reduction in levels of stress and anxiety but also that sustained improvements in function can be achieved by motivated participation in rehabilitative treatment programs of various kinds. The defendant also sought to make the case that where there is reliable scientific evidence that the amelioration or removal of anxiety and other psychological factors can make a positive contribution to pain management and an improvement in the function of patients who suffer from chronic pain syndrome, that it is critical to the [NAME] future management and the potential for sustained improvement in his condition, that he accept the advice of his treating psychiatrist and submit to any new pharmaceutical regime. 204 The defendant submitted that I would be satisfied that the plaintiff will accept all medical advice directed to improving his capacity to function so as to enable him to re-enter the workforce. It was also submitted that because he is motivated to continue to engage in all treatment options offered to him to achieve that objective, that his prognosis is not as bleak as contended for. In short, the defendant submitted that the deterioration in the [NAME] prognosis by his treating specialists since early 2007 from "good" to "poor" is likely to be reversed, or at least significantly improved, with a reduction in his levels of stress and anxiety under treatment for clinical depression by [NAME]. 205 For these reasons, and with continuing research into the condition and its causes, the defendant submitted that the [NAME] future economic loss should not be calculated by reference to the balance of his working life but by reference to a fixed period of five years, representing the time within which the plaintiff is likely to make a meaningful recovery sufficient to enable him to return to paid employment. This, it was submitted, is in accordance with the approach commended by McColl JA (with whom [NAME] P and Beazley JA agreed) in Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 at [84]: "As to the future economic loss, it is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act , when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case, the Court still undertakes a comparison between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3] - [5]) per Giles JA; applied K'mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA ([NAME] agreeing); see also Hornsby Shire Council v King [2005] NSWCA 67 (at [23]) per [NAME] ([NAME] P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case [NAME] P (at [2]) opined that "a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future", but, with respect, the accepted wisdom appears to be that a buffer can be deployed in circumstances such as the present."

206 In the alternative, the defendant submitted that if the calculation of future economic loss is to be made by reference to the balance of the [NAME] working life, it ought be discounted by at least 85 per cent to account for the real prospect of the plaintiff resuming paid employment in the future.

What is the [NAME] likely prognosis? 207 I have already concluded that the differential diagnoses of malingering and exaggeration did not undermine the [NAME] case on causation. Despite what the defendant submitted was a fiercely defensive attitude adopted by the plaintiff in the witness box, and a degree of exaggeration of his pain and dysfunction, albeit unconscious, I am not satisfied that malingering or any conscious exaggeration is operating to prolong the disabling effects of his condition, as distinct from the prolonged effect of chronic pain impacting on his emotional state. In my view, the [NAME] attitude is best exemplified by an answer given in cross-examination. [NAME] listed all the specialists the plaintiff had consulted over successive months in 2006 for a cause, explanation or diagnosis of his condition, he asked the plaintiff why he sought a further opinion from [NAME] in February 2007. The plaintiff responded as follows: "It was recommended by a person suffering similar symptoms to me and I was told that he was a very good doctor, I guess. He helped improve somebody's life. I mean, I was looking for answers… I wasn't going to give up looking for doctors just because someone - I was getting sent home every time basically with no answers. It was just frustrating. As I said I would have travelled the world to try and work out what's going on."

208 I also take into account the views of [NAME], his treating doctor since December 2006. In his report of 15 February 2008 [NAME] made the following comments and observations: "[NAME] is an honest, pleasant and mature [NAME]. He has willingly attended all treatments that have been requested of him…"

209 As has already been noted, at the time of diagnosis in February 2007, [NAME] considered the [NAME] prognosis was good, despite the fact that it may have taken two to three years for his symptoms to settle to any significant extent. However, at the time of the hearing after having treated the plaintiff in the intervening years, his settled view was that the [NAME] prognosis in terms of making a full recovery was very poor. He gave evidence that: "…My initial comments were related to what often happens in fibromyalgia. Symptoms tend to wax and wane but having seen [NAME] now for 2½ years there has been some variation in his symptoms but he has never really ever had a significant improvement at any point during that time. He has been very consistent in his symptoms and the clinical findings have been very consistent throughout. So my view is the prognosis is poor." 210 [NAME] went on to say that the [NAME] attendance at the pain clinic under [NAME]'s supervision, together with the spinal manipulation provided by [NAME], is part of a treatment program he would expect in the management of sufferers of fibromyalgia and that it was particularly suitable for the plaintiff as a person severely effected by the condition. 211 [NAME] also considered that the [NAME] prognosis was poor. He gave evidence that: "He has had good treatment which he has attempted to cooperate with and he hasn't improved during that time. He's not got an easily reversible problem, if I can put it that way. …extreme over use of medications is one that in a sense is easier to treat than somebody with the gross deconditioning, pain and depression that we see with [NAME], so I don't see him as having anything that is going to be easily reversible in his behaviour, in his level of pain and in his level of disability." 212 He agreed in cross-examination that stress is one of the factors which may operate to exacerbate fibromyalgia and, in particular, that the [NAME] worsening symptoms between February 2007 and when he was next reviewed by [NAME] in April 2007 would be likely explained by the confrontation and intimidation he had experienced in the [NAME] in the weeks preceding his redundancy. He also agreed in cross-examination that the treatment for sufferers of long-term chronic pain includes education and cognitive behaviour therapy in combination with a program of physical exercise and selective medication. 213 In the cross-examination of [NAME] the defendant sought to make the case that in circumstances where the use of sustained doses of prescription opioids in the management of patients with chronic non-malignant pain is controversial, the pharmaceutical regime the plaintiff has been subject for many years (including increasing doses of prescription opioids) might be actually retarding his capacity to function. While this was not pressed in final submissions, the defendant did submit that the claim for future medical and pharmaceutical expenses should make no allowance for OxyContin in circumstances where the evidence compels the conclusion that long-term opiate based pain therapy should be discouraged. I do not accept that submission since in [NAME]'s view relief from pain is a legitimate objective when treating chronic conditions and that, in this case the use of opiate based pain relief is and will be closely monitored.

214 [NAME] was also of the view that given the length of time that the plaintiff has suffered from fibromyalgia, it is likely that the condition would persist for the foreseeable future. He observed that treatment for fibromyalgia syndrome includes cardiovascular fitness and the provision of medication such as tricyclic antidepressant medications which are designed to modify neurotransmitter levels and the nerve endings of the spinal thermal tracks and the spinal cord. He noted that the plaintiff had been prescribed Prothiaden for this purpose. In his most recent report of August 2009 [NAME] has recommended that the doses of Prothiaden be tapered with a view to ceasing his intake of that drug altogether in preference for Cymbalta, a tricyclic antidepressant medication which has the added benefit of addressing pain and has proved to be of considerable benefit for sufferers of the condition. 215 With regards to the [NAME] future work capacity, [NAME] noted that because the plaintiff does have functional ability he does have some capacity for employment, but that he will experience discomfort on muscular use, particularly repetitive activities (such as handwriting, using a computer etc) or activities where there are sustained muscle contractions (such as holding objects). While he did not regard the prognosis for a full recovery as good, he did consider the plaintiff able to undertake work of a sedentary nature if he is able to vary his posture between sitting and standing, and if there is no significant requirement for repetitive activity or static postures particularly involving the neck. In [NAME] view, the [NAME] previous work in [NAME] would be appropriate. [NAME] was expressly invited to reconsider that opinion in light of the fact that there had been no sustained improvement in the [NAME] function since October 2007. He did not alter his earlier view. 216 [NAME] submitted that the defendant has exaggerated the difficulties involved in the assessment of the [NAME] future loss and has overstated his prospects for recovery against the overwhelming weight of the evidence. In any event, he submitted that this is not a case where the awarding of a buffer will adequately compensate the plaintiff for loss he is likely to suffer in the future where, on the available evidence, he will remain grossly incapacitated. Despite the necessity to consider the role and function of pain management and other rehabilitative therapies, [NAME] submitted that damages should be assessed in the conventional way under the statute. 217 In keeping with the otherwise mandatory requirements of s 13 of the Civil Liability Act, in an appropriate case the use of a buffer has been an approach sanctioned by the Court (see Penrith City Council v Parks [2004] NSWCA 201 at [3]-[5]. See also [NAME] v State of New South Wales [2009] NSWCA 99 at [30] where [NAME] noted that the observations of Giles JA had been followed in several cases in the Court of Appeal). The question is whether this is such a case. 218 I do not regard this as an appropriate case to award a buffer. I am concerned that in doing so there is a real risk that the plaintiff would be under-compensated. I am satisfied that the comparative exercise mandated by s 13 of the Civil Liability Act can be meaningfully undertaken despite the difficulties inherent in assessing the [NAME] residual earning capacity, and that an adjustment to the [NAME] award for future economic loss will be sufficient to address the potential for the restoration of his earning capacity.

Damages Non-economic loss 219 The plaintiff submitted that he was entitled to an award of damages on the basis that the severity of his non-economic loss, as defined in s 3 of the Civil Liability Act, approximated 80 per cent of a most extreme case of its kind, as that concept is utilised in s 16(3) of the Act. The defendant submitted that the severity of his loss fell far short of 80 per cent of a most extreme case given that damages in that order are ordinarily reserved for a plaintiff with profound disabilities with all but total loss of the amenities and enjoyment of life. In this case the defendant submitted that the severity of the [NAME] non-economic loss was in the order of 35 per cent of a most extreme case of a person suffering fibromyalgia given the prospects of him recovering the amenities of life and resuming his pre-injury social and family life, albeit with some residual loss of opportunity and prospects of self-fulfilment. 220 I accept the devastating consequences of the [NAME] injury given that he remains a relatively [NAME] with an established work ethic and the proven drive and initiative to improve his career prospects in a dynamic industry. I also take into account that at the time of the injury he was literally in the process of proving himself to his employer in a new role and that the injury prevented him from seeking to demonstrate his worth to the company for the future. I am not invited to take into account any disappointment or distress resulting directly or indirectly from the fact that in April 2007 his employment was terminated since the plaintiff did not seek to make the case that the termination was relevantly related to the defendant's negligence. Although there is uncontradicted evidence that the plaintiff was subjected to considerable stress and anxiety in the months leading up to his employment being terminated because of the particular [NAME] dynamics and a gathering sense of insecurity as his employer set about restructuring its operations, and that he felt belittled and intimidated as a consequence, I am not persuaded that should be taken into account as a measure of non-economic loss for which the defendant is legally liable. I do, however, take into account that the plaintiff has a diminished sense of self worth due to his current inability to undertake paid employment and that the pharmacological regime to which he has been subject since September 2006, and which is likely to be maintained for some time into the future, has an adverse impact on his ability to function in other areas of his life. 221 I also accept, without qualification, his evidence concerning the devastating impact of the injury on other aspects of his daily life, from the difficulties he has with even the most menial aspects of shared parenting and domestic responsibilities to having abandoned altogether any thoughts of resuming his pre-injury recreational, sporting and social pursuits. I also take into account his wife's evidence concerning the impact of the injury upon their relationship and the encroachment of his illness into their marital and family life as the plaintiff has struggled to deal with the reality of his disabilities. 222 I am not, however, persuaded that the severity of his non-economic loss justifies an assessment of more than 45 per cent of a most extreme case of its kind. In coming to that view, I am mindful of the prospects of improvement in the [NAME] condition which will not only positively impact on his capacity for employment in the future but will also ameliorate the loss of opportunity and amenity he has suffered to date such as to permit him to regain some level of independence and social confidence with a consequential diminishment of the current levels of his frustration, anxiety and disappointment.

Past economic loss 223 I am satisfied that the plaintiff achieved consistently high standards in his work as a [NAME] and client representative for [NAME] prior to the injury. His colleagues, his supervisor and his clients regarded him as a person who applied himself diligently to his work. This, together with his proven capacity to learn quickly and to adapt to the changing demands of an evolving industry, meant that his base salary of $72,000 per annum between 2003 and 2006, was supplemented by a commission component consistently within an annual target of $90,000. Having regard to the terms of the [NAME] most recent employment in his employer's letter of 11 May 2006 (which I note also provides for a commission target of $90,000 on a base salary of $72,000) and the fact that the plaintiff achieved 25 per cent of that target in November 2006 despite working reduced hours, satisfies me of the likelihood of his achieving his target but for the injury.

For these reasons I do not regard the warning letters the plaintiff received prior to accepting the new position in the company as having any impact on the calculation of his past or future economic loss. 224 In assessing the [NAME] past economic loss, s 12 of the Civil Liability Act dictates that I am to disregard the amount (if any) the [NAME] gross weekly earning would have exceeded the amount that is three times the average weekly earnings as at the date damages are awarded but for the injury. Thus, in this case, s 12 operates to cap the value of the [NAME] hypothetical earning capacity to three times $916.10, that figure being the most recently available gross weekly earnings for all employees in New South Wales as at 1 October 2009. After appropriate adjustments as outlined in Schedule 1 to this judgment, the [NAME] past economic loss to 4 November 2009 is $304,367. The loss of superannuation benefits for this period is also calculated in the attached schedule. I note that the defendant did not challenge the appropriateness of the [NAME] approach to the calculation of past economic loss or the method of calculation. 225 In so far as the award of damages for past [NAME] is concerned, the defendant did not challenge the [NAME] entitlement to an award, the threshold to recovery under s 15(3) of the Civil Liability Act having been satisfied in the detailed assessment undertaken by [NAME] in Part 14 of her report. Future economic loss

The application of s 13 of the Civil Liability Act to assessing damages for future economic loss 226 In assessing damages for future economic loss s 13 of the Civil Liability Act obliges the plaintiff to satisfy me that the assumptions about his future earning capacity accord with his most likely future circumstances were he not injured, and to adjust the award by reference to the percentage possibility that the events might have occurred but for the injury. The extent to which damages are adjusted, in accordance with the requirement in s 13(3), is a statutory implementation of the established practice of reducing an award of damages for future loss for vicissitudes. 227 The plaintiff referred me to [NAME] v Al [NAME] [2009] NSWCA 333 where the Court of Appeal reviewed the collected authorities on the interpretation of s 126(1) of the Motor Accidents Compensation Act 1999, which is in identical terms to s 13 of the Civil Liability Act. [ADDRESS] noted that the section is not a code but assumes the operation of general law principles and went on to note: "[23] ...Whether it merely encapsulates, rather than qualifying, the general law, and if the latter to what extent, is less clear. Subsection (1) is formulated as a prohibition on an award of damages for future economic loss, unless its terms are satisfied. The section imposes a burden of proof on the claimant to satisfy the court as to the matters identified in the provision. Those matters are twofold, namely: (a) the claimant's most likely future circumstances but for the injury, and (b) the assumptions about future earning capacity (and other events) which will form the basis of calculation. [24] It appears that sub-s (1) deals only with the baseline earning capacity which might have been achieved but for the injury. Of course, an assessment of post-injury future earning capacity will also be required, but if sub-s (1) were addressing the assumptions necessary for that part of the exercise it would be unlikely to require them to "accord with" the most likely future circumstances but for the injury. The operation of this provision will vary from case to case and will depend in part on the level of particularity or generality at which the exercise is undertaken. Because there is no challenge in the present case to the findings by the trial judge in respect of the most likely future circumstances, or the assessment of future earning capacity, but for the injury, the operation of this provision need not be addressed further. [25] Subsection (2) requires an adjustment to an otherwise appropriate amount to take account of the possibility that "the events concerned might have occurred but for the injury". There is clearly a step between the exercise addressed in sub-s (1) and that required by sub-s (2). That step must be to identify the departure from the baseline earning capacity (calculated in accordance with sub-s (1)) caused by the injury. The third step is to calculate, as a monetary amount, the present value of the difference between the baseline and the assessment of post-injury earning capacity. The diminution caused by the tortious injury will provide a figure for assessing the appropriate award of damages. It may not be the final figure, because the diminution caused by the accident might have occurred, in part or in whole, in any event, within the working life of the claimant. Some allowance must be made for that circumstance: it is that allowance which constitutes the adjustment required by sub-s (2). [26] Subsection (3) is designed to ensure transparency in respect of the two steps in the process identified in sub-ss (1) and (2). In the course of the missing steps, namely the assessment of the extent of the disability caused by the accident, further findings will be made as to hypothetical future circumstances. Whether or not those findings must be identified and stated in the Court's reasons, pursuant to sub-s (3), is largely immaterial: they should in any event be stated in accordance with general law principles. [27] One issue which has given rise to debate in the case-law is whether the court, in making an assessment of future economic loss, is entitled to take into account the possibility of departure from the baseline calculation derived from the claimant's most likely future circumstances. For example, the most likely future circumstances might be that a claimant would remain in his or her pre-accident employment but would achieve two levels of promotion over a working life. In accordance with general law principles, in assessing the loss caused by the accident, the court would be entitled to take into account the possibility that a further promotion might have been achieved (with resultant higher earnings) and the possibility that no promotion would have been achieved. The approach under the general law is commonly identified by reference to the principles stated in [NAME] (No 2) (1997) 41 NSWLR 49; a different (and more typical) factual example, which arose under the statutory regime, may be seen in [NAME] . Although s 126(1) requires that the assumptions underlying the baseline calculation should "accord with" the claimant's most likely future circumstances but for the injury, it does not expressly preclude taking into account possible variations from those circumstances. Further, the form of the section is inconsistent with any clear implication excluding other considerations. The facts and arguments in this appeal do not require the resolution of these issues."

228 While the plaintiff accepts that no-one's future employment is guaranteed, I am also invited to view the industry in which the plaintiff has a proven work history as a growth industry, with innovation and expansion its hallmarks, and that the [NAME] aptitude, drive and initiative were likely to have assured him ongoing opportunities for promotion and advancement with a flow on effect to his entitlements to superannuation benefits. 229 In so far as there might be an allowance made for the [NAME] residual earning capacity (ie his capacity for work as assessed by [NAME] as distinct from the restoration of his earning capacity to some measure approximating his pre-injury levels) the plaintiff submitted that it should be a modest allowance only given that the range of potential employment is very narrow largely because he cannot drive or use public transport such that his employment will need to be home-based. 230 The defendant invited me to assess the [NAME] baseline earning capacity as precarious both because of the volatile nature of the [NAME] environment in which the plaintiff worked pre-injury and because the level of his income was largely dependent on commission earnings, a notoriously uncertain source of income being linked to such variables as product [NAME], a shifting customer base and shifts in macro-economic environment.

For these reasons I was invited by the defendant to calculate damages for the [NAME] future economic loss on the basis of extended periods of reduced income, through not earning commission, and the likelihood of the plaintiff being unemployed from time to time. 231 Taking those competing considerations into account, and taking into account the [NAME] guarded but not wholly pessimistic prognosis, I propose to assess the [NAME] future economic loss on the basis of average nett weekly earnings of $1944.47 (referable to the multiplier of 555.0) equating to a permanent incapacity for work for 15 years, this being my best estimate of the duration of the [NAME] permanent incapacity before he is able to resume paid employment at his pre-injury levels. I have also applied an additional discount of 15 per cent for vicissitudes. The loss of superannuation entitlements and the need for future domestic assistance are calculated on the same basis. I have approached the assessment of future economic loss in this way mindful of the views of [NAME] in State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536. His Honour emphasised that an assessment of damages for loss of the capacity to earn income in the future in a manner productive of financial loss is by its nature an imprecise enquiry, being an exercise in the estimation of possibilities not proof of probabilities.

232 At [87] of [NAME] said: "…The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters. Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made, since what is involved is not the finding of historical facts on a balance of probabilities, but the assessment of the value of a chance, it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility…" 233 In the same judgment his Honour noted at [71] the views of the majority ([NAME], Gaudron and McHugh JJ) in Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 at 643: "… when the law takes account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring in a range from just above the speculative to just below the certain. The inquiry - the process of estimation of possibilities - is thus an imprecise and indeterminate one to be carried out within very broad parameters. The trier of fact may have to form conclusions on "slender materials"…" 234 In assessing the cost of the [NAME] future attendant care needs I again rely on the comprehensive assessment undertaken by [NAME]. In Section 15 of her report she qualifies the extent of his care needs in two ways. First she notes that the hours per week allocated to personal hygiene, domestic duties including shopping and transfers should not be allowed in full if the costs of other services, equipment and housing modifications are provided for. Second, that as intervention in the form of occupational therapy and other rehabilitative services are designed to improve and maintain improvement in his physical condition and associated functioning, then the need for ongoing attendant care should be reduced. I also take into account that as the plaintiff ages his care needs will be greater and increase more rapidly than an aging person in good health. Since I propose to award damages for professional services, and for equipment and significant modifications to the home environment, I propose to reduce [NAME]'s assessment of the [NAME] weekly attendant care needs to 12 hours per week at the week day commercial rate of $38 per hour applying a multiplier of 15 years. 235 I propose to allow the full cost of occupational therapy and associated travel costs as set out in [NAME]'s report save for the therapy associated with use of the scooter since provision is to be made for a wheelchair. I do not propose to allow the counselling sessions for the plaintiff and his wife as I am not persuaded that there is a current or continuing need for such intervention. In addition I have not allowed all of the equipment and home modification costs. For example, I propose to allow the full cost of a bathroom modification, as per [NAME]'s report, as distinct from the cost of equipment and installation of the same given that I am allowing for his current incapacity and the probabilities of some improvement in his condition in the short term. I consider some adjustment is required for what is claimed as the cost of replacement of the wheelchair on the same basis. Since the wheelchair is not used on a permanent basis, but rather to facilitate the [NAME] participation in family and social or sporting events, a one off cost is, in my view, a sufficient allowance. I am satisfied that modifications to the family vehicle are justified and allowance will be made for that also on a one off basis. 236 The orders I make are as follows:

1. Judgment in favour of the plaintiff in the amount of $ 2,268,137.86 as reflected in the attached schedules.

2. The second defendant to pay the [NAME] costs as assessed or agreed. Assessment of damages

5.11.1977 Date of Birth [DATE] Date of Accident

52.5 Life Expectancy 984.9 Multiplier Life Expectancy 35 (to age 50) Working Life Expectancy 555.0 Multiplier Working Life Expectancy

Schedule of damages Head of damages Amount NON-ECONOMIC LOSS Damages for non-economic loss (45% of most extreme case) 213,075.00 PAST ECONOMIC LOSS Past economic loss (as per Schedule 1) 353,543.00 Interest on past loss of income (as agreed) 25,950.00 Past superannuation benefits (as per Schedule 2) 45,299.00 Interest on past loss of superannuation (as agreed) 4,646.00 [NAME] (as per Schedule 3) 95,950.30 Out of pocket expenses (as agreed) 28,754.13 554,142.43 FUTURE ECONOMIC LOSS Loss of earning capacity (as per Schedule 4) 917,303.72 Loss of superannuation benefits (as per Schedule 4) 116,673.21 Future professional attendant care (as per Schedule 5) 253,080.00 Equipment and home modifications 69,100.00 Future treatment (as per Schedule 6) 115,717.50 [NAME] v [NAME] (as agreed) 29,046.00 1,500,920.43 TOTAL 2,268,137.86

Schedule 1

PAST ECONOMIC LOSS

PROJECTED LOSS OF INCOME FOR 2006/07

2007 Average weekly total earnings 916.10 gross for all employees in NSW (based on the most recently published award – [NAME] handbook, page 8, published 1.10.09)

Gross income as defined by s 12 of the Civil Liability Act 2002: 143,401.00 3 x $916.10 = $2,748.30 x 52.178

Less actual income received 43,102.00 The [NAME] income in the financial year 2007 ($69,239) less income received in the 2006 financial year but paid in 2007 ($26,137)

Gross income loss 100,299.00

Less tax On first $75,000: $17,850 27,970.00 Plus 40% (in excess of $75,000 to $150,000) on $25,299: $10,120 Total tax payable

After tax loss for 2006/07 $ 72,329.00

Schedule 1 (cont.) PROJECTED LOSS OF INCOME FOR 2007/08

2008 Average weekly total earnings 916.10 gross for all employees in NSW (based on the most recently published award – [NAME] handbook, page 8, published 1.10.09)

Less tax On first $75,000: $17,100 44,460.00 Plus 40% (in excess of $75,000 to $150,000) on $68,401: $27,360 Total tax payable

After tax loss for 2007/08 $ 98,941.00

PROJECTED LOSS OF INCOME FOR 2008/09

2009 Average weekly total earnings 916.10 gross for all employees in NSW (based on the most recently published award – [NAME] handbook, page 8, published 1.10.09)

Less tax On first $80,000: $18,000 43,360.00 Plus 40% (in excess of $80,000 to $180,000) on $63,401: $25,360 Total tax payable

After tax loss for 2008/09 $ 100,041.00

Schedule 1 (cont.)

PROJECTED LOSS OF INCOME FOR 2009/10

Less tax On first $80,000: $17,850 41,942.00 Plus 38% (in excess of $80,000 to $180,000) on $63,401: $24,092 Total tax payable

101,459.00 Annual after tax loss to 30.6.2010 or 1,944.47 per week Loss from 1.7.2009 to 30.4.2010 $ 82,232

TOTAL PAST ECONOMIC LOSS TO 30.4.2010 $353.543

Schedule 2 LOSS OF SUPERANNUATION BENEFITS PAST

2006/7 Year: 9% of $100,299 $ 9,027.00

2007/8 Year: 9% of $143,401 $ 12,906.00

2008/9 Year: 9% of $143,401 $ 12,906.00

From 1 July 2009 to 30 April 2010 $ 10,460.00

TOTAL $ 45,299.00

Schedule 3 (as per Part 14 of [NAME]'s report)

[NAME] 4 months post accident (17.3) weeks 16.74 hours pw x $22.90 per hour x 17.3 weeks = $ 6,632.00

From 4 months post accident to 23.3.2009 (123 weeks) 22 hours pw x $22.90 per hour x 123 weeks = $ 61,967.00

From 23.3.2009 to 30.4.2010 (54.29 weeks) (assuming the same hours as in the 123 week period to 23.3.09) 22 hours pw x $22.90 per hour x 54.29 weeks = $ 27,351.30

TOTAL $ 95,950.30 Schedule 4 FUTURE ECONOMIC LOSS

Based on average nett weekly earnings of $1,944.47 $1,944.47 x MWLE (555.0) $ 917,303.72 less 15% for vicissitudes

FUTURE LOSS OF SUPERANNUATION BENEFITS

9% of $2,748 x MWLE (555.0) $ 116,673.21 less 15% for vicissitudes

Schedule 5 FUTURE PROFESSIONAL ATTENDANT CARE

12 hours per week at $38 per hour x MWLE (555.0) $ 253,080.00 Schedule 6

FUTURE TREATMENT

Medication (Based on information from [NAME]) Cost of Medication from 1.7.2009 to 30.9.2009: $25 pw x MWLE (555.0) $ 13,875.00

Treatment Regime for the future (Cost based on cost of treatment, travel and massage, Exhibit S) From 1.7.2009 to 30.9.09 (12 weeks): $156.00 pw x MWLE (555.0) $ 86,580.00

Consultations Visits to [NAME] (From Exhibit S): from 1.7.2009 to 30.9.2009: 1 per month @ $60 per visit or $15pw

Visits to [NAME] (From Exhibit S): from 30.6.2009 to 30.9.2009: 1 per quarter @ $150 per visit or $12.50pw Total: $27.50pw x MWLE (555.0) $ 15,262.50

TOTAL $ 115,717.50

20/10/2010 - Judgment varied pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005.Schedules amended as agreed by parties. - Paragraph(s) 236 - delete $2,169,369.56 and insert $2,268,137.86.

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