PARTIES: PETER JOHN JEFFS
CAPITEQ PTY LTD t/as AIRNORTH REGIONAL AIRLINES
MICHAEL JOHN BOURKE and ELIZABETH RAYNER t/as AIR MANYMAK
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction
FILE NO: 153/00 (20017216)
DELIVERED: 12 January 2006
HEARING DATES: 12-16 September 2005
JUDGMENT OF: THOMAS J
DAMAGES -- GENERAL PRINCIPLES -- LIABILITY ADMITTED
Measure of Damages in Action for Tort.
Plaintiff: W Priestley
2nd Defendant: P Rose SC
2nd Defendant: Hunt & Hunt
Judgment category classification: C
Judgment ID Number: tho200602
Number of pages: 41
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
Peter Jeffs v Capiteq Pty Ltd & Ors  NTSC 2
No. 153/00 (20017216)
PETER JOHN JEFFS
CAPITEQ PTY LTD t/as AIRNORTH REGIONAL AIRLINES
MICHAEL JOHN BOURKE and ELIZABETH RAYNER t/as AIR MANYMAK
CORAM: THOMAS J
REASONS FOR JUDGMENT
(Delivered 12 January 2006)
 This is a claim for damages arising from injuries suffered by Mr Peter Jeffs in an airline crash on 30 October 1998.
 With the consent of the parties a claim for damages by Mrs Elaine Jeffs, the wife of Peter Jeffs, proceeded as a joint hearing. The evidence of all witnesses is evidence in both matters. Mr Priestley appeared as counsel for the plaintiff. Mr Rose SC appeared as counsel for the second defendant.
 By consent I made an order allowing the plaintiff to discontinue her claim against the first defendant. I further ordered that costs of the proceedings against the first defendant be costs in the cause against the second defendant.
 The Court was advised that liability had been admitted by the second defendant and both matters were before the Court for an assessment of damages.
The plane crash
 In the reasons for judgment relating to the claim by Mrs Elaine Jeffs, I have summarised her evidence as to the plane crash. The only other witness to give evidence as to the plane crash was Mr Peter Jeffs who also suffered injuries, the subject of a claim for damages.
 Mr Jeffs gave evidence he was a passenger in an aircraft flying from Maningrida to Darwin. The aircraft was a Cessna 210 carrying a pilot and five passengers.
 Mr Jeffs was seated in the rear left hand seat. His wife Elaine was in the right front seat. Mr Jeffs fell asleep shortly after boarding the plane. His wife called out to him that they were going down. He observed the plane come steeply in over the trees. The aircraft hit the ground, bounced to a height of 15-20 metres, came down again, careered up over a mound of gravel and come to a stop approximately three metres from the trees. Mr Jeffs felt a searing pain radiating mostly through his back but also through his shoulder. He also felt pain in his right knee. He observed his wife was still in her seat, lying across the seat rather than on the seat. The seat had broken loose from the mountings and was partly under the instrument panel. The pilot was unconscious and bleeding badly from her face and mouth. A ruptured wing tank was pouring fuel over the pilot. Mr Jeffs assisted to free his wife’s legs from where they were trapped under the control pedals and moved her several metres from the aircraft. He then assisted another man alight from the plane and they both dragged the pilot out. Mrs Jeffs was extremely upset. She complained that she was hurting. About 40 minutes after they had all cleared the aircraft, a similar type aircraft started to circle overhead and continued for about another two hours. About two and a half hours after the crash, two 4WD vehicles arrived on the scene. They were followed by a police vehicle, a doctor and nurses from Oenpelli. At about 5.30 pm, approximately four hours after the crash landing, a helicopter arrived and they were all flown out. Mr Jeffs was placed on a stretcher and carried to the helicopter. From Darwin Airport they were taken by ambulance to Royal Darwin Hospital. He woke the next morning in hospital. He was advised he had broken a vertebrae and should refrain from movement as much as possible. He was in hospital for 10 days.
 Mr Jeffs was born in Kellerberrin in Western Australia on 7 April 1939. He attended school to age 14. On leaving school he worked as a labourer for a little over three years on a mixed farm in Ardath, in the central wheat belt of Western Australia. He then learnt to shear sheep and for the next five to 16 years, worked as a sheep shearer. He was then approximately 33 years of age. He had no back complaints during this time. For three years following this, Mr Jeffs obtained employment as a metropolitan transport bus driver. He then obtained a job as a national park ranger with the National Parks Authority of Western Australia. For the first six years he was based at Yanchep National Park which is approximately 50 kilometres north of Perth. He then transferred to Serpentine National Park which is approximately 50 kilometres south of Perth. After a further six years he transferred to Porongurup National Park which is approximately 300 kilometres south of Perth. He then worked a short time as an orderly at Hollywood Repatriation Hospital in Perth and as a labourer with a concreting company.
 In or about 1990, Mr Jeffs went to a north-eastern goldfield town called Leonora where he stayed for about two years as an accommodation and maintenance worker. At Leonora he formed a relationship with his now wife, Elaine Jeffs. After two years at Leonora, Mr Jeffs moved to a remote aboriginal community near Warburton about 1040 kilometres northeast from Kalgoorlie. Mr Jeffs was employed as the administrator of that community. After about two years and four months in that community, he moved to Kununurra. He worked there for nine months with the Aboriginal and Torres Strait Islander Commission.
 At the end of nine months, Mr Jeffs’ contract terminated. He then obtained employment with an aboriginal community 200 kilometres south of Kununurra as an administrator for 12 months. The community members owned a roadhouse. Mr Jeffs and his wife worked at the roadhouse for slightly over two years. Mr Jeffs was employed there as manager.
 Following this job, Mr and Mrs Jeffs commenced work on 15 June 1998 with the Arnhemland Progress Association. Initially they were employed as relief store managers when the permanent manager went on leave. They spent short periods of time at a number of communities, including Lake Evella, Elcho Island, Ramingining and Umbakumba. They attended a cross cultural training course at Gove. They also spent some time at Milingimbi. The community council at Milingimbi accepted them and offered them a permanent position as store manager and assistant manager at Milingimbi.
 On 30 October 1998, Mr and Mrs Jeffs were taking some leave. They were scheduled to return in December 1998 to take up their positions at Milingimbi. As a consequence of the plane crash this never occurred.
 Mr Jeffs’ suffered fractured lumbar vertebrae at L1, L2 and L3, abdominal injuries, a whiplash injury, right shoulder injury, he was aware of the rupture of the biceps with prominence in the upper arm, right knee swelling, post traumatic stress and anxiety. He suffered pain in his lower back, right shoulder and right knee. Upon Mr Jeffs’ discharge from Royal Darwin Hospital on 10 November 1998, he and Mrs Jeffs moved into accommodation at Marina View Apartments in Cullen Bay. They stayed there for a total of seven days. Friends and relatives stayed with them to care for them. A decision was made to move to Rockingham, near Perth in Western Australia, where they could be cared for by Mrs Jeffs’ sister. They stayed there from 17 November 1998 until returning to Darwin on 9 March of the following year. Mrs Jeffs was extremely emotional about having to fly by plane. Mr Jeffs gave evidence he suffered pain very badly during this period. He and his wife sought medical treatment and psychological counselling. Mr Jeffs has not continued psychiatric or psychological counselling. He has not received treatment for his physical injuries since leaving hospital.
 Mr Rose SC, on behalf of the defendant, stated the defence maintained there was no Griffith and Kirkmeyer component to the plaintiff’s claim. However, if I did find such a component it was agreed the rate was $17 per hour. It was agreed to allow for the services of Mr Jeffs’ daughter Teisha, in the sum of $375 each for Mr and Mrs Jeffs, making a total of $750.
 Mr Jeffs’ evidence is that while he was working as a relief manager for Arnhemland Progress Association, he was earning a salary of $36,000 per annum and superannuation component to bring it to $39,000 per annum. His wife earned $24,000 per annum plus a superannuation component of 9 percent. They had six weeks annual leave. They had a travel allowance of $2,500 each per annum. They were provided with a house and had the use of a motor vehicle.
 Whilst at Rockingham, Mrs Jeffs’ sister Valerie, nursed them both. For the initial six weeks, Valerie did all their washing and cooking. She assisted Mrs Jeffs in and out of bed and to the shower. As they gradually improved, the requirement for care decreased.
 Mr Jeffs stated both he and his wife felt traumatised by having to take a flight back from Perth to Darwin on 9 March 1999. They were provided with accommodation at Cullen Bay, Marina View Apartments. Mr Jeffs attended an appointment with Dr Guthrie who pronounced him fit to return to work, as did Dr Brownjohn. Mr Jeffs stated he was still enduring some pain but was determined he wanted to return to work.
 The work involved assisting the resident manager, or as relief manager, at various communities. Mr Jeffs travelled to these communities by plane. Plane travel made him feel apprehensive. Early in April 1999, Mr Jeffs, at the request of his employer, flew to Palumpa some 400 kilometres south of Darwin to assist the store manager. After two weeks, Mr Jeffs took over as manager of the store. He was given and completed a two year contract. Mrs Jeffs also obtained work at Palumpa. Mr Jeffs gave evidence that during this time he experienced pain to his lower back, his right shoulder and right knee. He had suffered a fractured vertebrae to his lower spine in the plane crash, an injury to his right bicep, a whiplash neck injury and a knee injury. These injuries had made it difficult for Mr Jeffs to carry out his work at Palumpa. He gave evidence he resigned himself to the fact that his pain would not go away. The work was six hours per day which was similar to the other stores where he had worked.
 Mr Jeffs gave evidence he did not renew the contract at Palumpa. He stated this was because there was no one on the community who could assist him with stocking the shelves. He had to do this himself. He experienced high levels of pain, particularly in his back, radiating to his hips and pain in his shoulder and right knee. This combined with the fact that they had been there through three wet seasons and for seven months of the year, the only ingress and egress from Palumpa was via aircraft. His wife lived in constant fear that some emergency would arise and she would have to be evacuated by aircraft. She had suffered from an extreme fear of flying since the accident.
 Under cross examination Mr Jeffs agreed that closer contact with family was a reason for his wife wanting to move to Wagin in Western Australia and this was a reason for him not renewing his contract in the Northern Territory. He agreed there were other similar stores in the Northern Territory and Western Australia and there would be those that were not cut off by floodwaters during the wet season.
 When they returned to Wagin, Mr Jeffs found it difficult to find any work. He gave evidence they registered for unemployment benefits. He stated he then obtained part time work, three days a week, supervising the building of a nature trail through the Wagin lake system. Mr Jeffs then contacted Arnhemland Progress Association who employed him to assist the store manager at the Batchelor store in the Northern Territory. This job was for approximately 14 days. The work involved removing stock from the shelves, rearranging the shelves and replacing stock. There was a lot of bending up and down which Mr Jeffs found painful and extremely tiring. At the end of this period, Arnhemland Progress Association gave him a temporary position at Ramingining. He was the manager of the take away food section. Mrs Jeffs did not accompany him back to the Northern Territory. At the end of four months he was offered a position on Melville Island but decided to return to Wagin where Mrs Jeffs was living. He found the separation from his wife too difficult to cope with.
 Mr Jeffs returned to Wagin in January 2003. He obtained employment driving a truck which was spreading fertiliser on farm paddocks. It was extremely rough driving conditions. He worked five days a week for seven hours a day. The driving caused a great deal of pain in his back. This pain radiated down into his hips. After driving for three months he obtained employment with an organisation called Job Futures. He worked with them as an employment consultant for a year. The constant sitting caused considerable aggravation in his back. He needed an income but found the job itself depressing. He is a competent driver and when the courier business became available, he purchased a van and decided to go into the courier business. This involves driving in shifts through a round trip which takes about five hours. There are frequent stops. He is transporting some freight, being bank transaction records. Mrs Jeffs gave evidence the van was purchased in June 2004.
 Mr Jeffs gave evidence the pain is still with him. Because of the pain in his right knee, he cannot walk more than 50 to 100 metres without feeling severe pain. He has occasional headaches from his whiplash injury. He is unable to raise his right arm laterally. He has pain in his back which fluctuates depending on what he is doing. Repeated bending exacerbates the pain. He becomes cranky and irritable very easily. He becomes unnecessarily angry with his wife over trivial things. Two to three times a month since the plane crash he has frightening dreams. He cannot participate in golf, archery or running, which he used to do prior to the accident. He can still participate in his pre-accident passive hobbies of carpentry, woodwork and making leather products.
 Under cross examination Mr Jeffs gave evidence that he had purchased a Toyota Hi Ace van for the courier business. He stated he does nine runs a week in the courier business of approximately five hours each. His wife does one run for him each week and a friend does another run each week. He employs a person to wash and clean the van. He has an open ended contract.
 Mr Jeffs gave evidence that to travel in an aircraft from Perth to Darwin for this Court case, was a distressing experience for both he and his wife.
 Prior to the plane crash, Mr Jeffs had never had any period of unemployment for more than two weeks. A consequence of the plane crash has been a detrimental affect on his sexual relations with his wife.
 Mr Jeffs was taken to his Income Tax Returns which are Exhibit P5. The 1999 tax year return at page 17 shows an income of $32,980. This included income from work with the Arnhemland Progress Association from July to 30 October 1998. A copy of the tax return for the financial year ending 30 June 2005 commences at page 107. It is a partnership return. The total expenses for that year were $53,483. The income for the year was $73,929 with a net income of $20,446. This included motor vehicle expenses of $25,333. It is Mrs Jeffs evidence that this included the cost of purchasing a motor vehicle.
 Mr Jeffs stated he did most of the work in the home which included vacuuming, washing floors, ironing, frequently washing the dishes and cooking meals. Mr Jeffs estimated he spent two and a half hours a day five days a week on the household chores.
 Under cross examination, Mr Jeffs stated he had purchased a Toyota manual four cylinder Hi-Ace van for his courier business. In the courier business he does nine runs a week. Each run is approximately five hours duration. On one day of each week he does two runs. His wife assists by doing one run each week. He has a contract with a private company which contracts its services to Banks and Australia Post. Each three months there is a revision of the rates of pay. Mr Jeffs stated this was a job he can do and enjoys doing. He is now 66 years of age and intends to work until he is 70. He agreed that there are many stores, both in the Northern Territory and Western Australia, such as the one where he worked at Palumpa. Many are in communities which do not get cut off by rain. Mr Jeffs stated that prior to moving to Wagin to live, he had made an enquiry through the estate agent who sold them the house, about employment prospects. He agreed that when they made a decision to move to Wagin his wife wanted to be near her family. Initially, Mr Jeffs was not keen about living in Wagin because he had been unable to get employment. For this reason he had returned to the Northern Territory for a short time. He agreed that thirteen weeks after the plane crash, he was able to return to work and has continued working since then except when there has been no work available. He stated he now does not like flying in aeroplanes but he does it. It is his evidence that he and his wife found the flight back to Darwin, to give evidence at Court, was a most distressing experience for both of them. He agreed that whilst he was unfit for work he was paid worker’s compensation which covered his loss of wages for the period. He agreed both Dr Guthrie and Dr Brownjohn had cleared him as fit to return to work in March 1999. He agreed that after leaving Palumpa, he and his wife had not applied to work at another remote community.
 Mr Jeffs gave evidence that prior to the plane crash he would wash up the dishes. He has continued to do this and now does the vacuuming and washes the floors in the house every second day. He cooks the meals during the day and on weekends. His wife prepares the evening meals. He agreed they shared the domestic duties and he was happy to do this.
 Mr Jeffs stated that he does have infrequent consultations with Dr Parry and is not receiving treatment for his injuries. He has not received any treatment since completion of the thirteen week period following the plane crash. He was taking medication for hypertension prior to the plane crash. He did have a heart problem prior to the plane crash and had a stent placed in one of the veins of his heart. He stated he was not receiving regular treatment from a psychologist and has not consulted a psychiatrist. He agreed that the Arnhemland Progress Association had provided them with a house and the value of this was $120 a week.
 As a consequence of the plane crash, Mr Jeffs claimed the following injuries: a compressed fracture of the L1 vertebra, whiplash injuries to neck and shoulders, swelling around the stomach region, multiple soft tissue injuries, post traumatic stress and anxiety.
Dr Desmond Williams
 Dr Williams is an orthopaedic surgeon with over 30 years in practice. His main area of expertise is as an arthritis surgeon in upper and lower limb. Dr Williams had prepared four reports with respect to Mr Jeffs dated 5 May 2004, 13 December 2004, 20 June 2004 and 2 September 2005. These reports were tendered and marked Exhibit P11. In his report dated 5 May 2004, Dr Williams stated as follows at page 8:
“4. This patient has significant persisting injuries related to the violent incident of the aircraft crash on 30th October 1998, and these include:
1. Pain in the right shoulder and presence of an acromioclavicular joint and glenohumeral arthritic change, and with subacromial spurring and subacromial bursitis, and complete rupture of subscapularis and supraspinatus tendons and long headed biceps tendon presenting major right shoulder pathology.
2. In the cervical spine where he has had a soft tissue neck injury, he has evidence of mid cervical degenerative change and segmental stiffness.
3. In the thoracolumbar spine where he has evidence of the significant wedging of the L1 vertebral body at 50% of its height, he has multilevel degenerative change in the thoracic and lumbar area, so he has had soft tissue injury and fractures, and the symptoms related to underlying degenerative change.
4. In his right and left hips he has early hip arthritis, shown in the right hip by the restriction in the internal rotation clinically, and defined in the x-rays, and there is mild disability here in the right hip at 5% and the left hip at 5% but I have no clear evidence that the accident played a direct role in the arthritis as it may simply be related to his aging.
5. In his right knee where he has had constant pain persisting since the accident, he has pan-compartmental arthritis with most marked changes in the medial compartment, and here he has a significant disability related to traumatic progressive arthritis. He has the symptoms related to these areas discussed in the text of the report.
5. The aircraft accident of October 1998 was a very forceful impact injury and he has had ongoing symptoms persistent since that time, so we see the pathologies and symptoms as related to that incident was discussed in the text of the report.
6. His problems have stabilised such that he can move towards settlement.
7. I have outlined that his right shoulder requires further assessment with an MRI study and the potential for surgical procedures to improve the function, such as an arthroscopic subacromial shaving has to be considered, and any final decision on surgical management will hinge on clarifying the pathology.
In his right knee [he] has significant osteoarthritic change and there will be a progression that leads to a total knee replacement within a five-year period.
His cervical and thoracolumbar spinal injuries require intensive swimming and exercise schedules in management.
I further mention the psychological issues need appropriate assessment as I believe his withdrawal from care and coping with these severe difficulties with minimal supervision of management, reflect a significant ongoing psychological component to his reaction to the injuries.”
 Dr Williams then set out permanent residual disabilities in percentage terms with respect to his right shoulder, cervical spine, thoracolumbar spine, right knee, right and left hip. These percentages he reviewed again in his report dated 13 December 2004. Dr Williams stated in this report at page 5:
“vi) He is limited with regard to his work capacities and he is apparently coping with courier driving in the setting of the country town of Wagin. He is limited with regard to heavy lifting, repetitive spinal bending and with upper limb activities above shoulder level. There is a range of restrictions in his medium to long term work capabilities.
vii) It may well be that the air craft injuries and disabilities lead to premature retirement from the workforce but I note he is aged 65 so I would see him losing any work capabilities in the open market certainly within the next five years. I would see this occurs within the coming two years with significant increased symptoms that will require orthopaedic review and management strategies that will interfere with work capacities.
viii) My treatment recommendations currently are conservative with swimming and exercise schedules and pain-relief and anti-inflammatory drugs with the review observations by his general practitioner and an orthopaedic surgeon with regard to the need for any intervention managements and specific areas of needs.
ix) The prognosis is that there will be a gradual deterioration in his functional capacities in these areas of injury where he has had soft tissue injuries and exacerbation of symptoms from underlying degenerative change.
In the thoracolumbar area where he has the major wedging fracture, there will be progressive degenerative change.
I see these progressive changes emerging over the coming period of 2-5 years.”
 These matters are set out again in his reports dated 20 June 2005 and 2 September 2005. In the later of these two reports, Dr Williams states (page 4):
“It is noted he is presently working as a light courier operator. He is quite limited with regard to his functional capacities related to the right shoulder, right knee and his spine and I would see him coping with that work activity on a year-to-year basis with a need to assess annually his capabilities.
I would not see him as being fit for work activity for greater than perhaps another year or two. He certainly would not continue these work activities for a period of 4-5 years as I see his problems emerging as significant problems that will require further major intervention within that timeframe.”
 Dr Williams estimated the arthroscopic intervention that would be required with respect to the right shoulder, as costing in the order of $5,000 which cost would be doubled if he requires arthroplasty procedure.
 Dr Williams also made estimates as to the costs of arthroplasty of the right knee and shoulder and hip implants. He estimated the overall cost of arthroplasty with an implant in the range of $20,000 to $25,000.
 Under cross examination Dr Williams gave evidence that as persons age they can experience degenerative change which can vary between individuals quite significantly. Mr Jeffs being over 50 years of age would have some elements of degenerative changes. Dr Williams gave evidence as to the medical and hospital report he had access to at the time he prepared his reports. He agreed that he had arranged to have further X-ray films taken of Mr Jeffs in 2005. From these films he noted some mid and lower cervical degenerative changes. There was some mild degenerative change in the thoracic spine consistent with aging. In the lumbar spine there is an anterior wedging deformity of the L1 vertebral body 50 percent loss of vertical height antivirally. There is a disturbance of the disc above and below L1 and disturbance of the facet joint alignment at the back, because it is a single segment. The films show the minor fractures to L2 and L3 have healed. He has mild disc degeneration in keeping with his age. He has a major wedging fracture at the L1 level which would lead to pain and stiffness. With regard to the right shoulder he had a ruptured biceps, that is a rupture of the tendon in the front. There was marked degenerative change in his right knee as compared to mild to moderate degenerative change in the left knee.
 Dr Williams stated that Mr Jeffs had not had any specific treatment, he had been on a limited program of physiotherapy. He needs access to a swimming pool and exercise program and in Dr Williams’ opinion, Mr Jeffs’ treatment program had been inadequate.
 Dr Williams stated Mr Jeffs has significant spine and shoulder pathology and was to be congratulated for continuing to work given his significant disabilities. Dr Williams was of the opinion that many people would have given up work well before this point.
 Dr Williams agreed that Mr Jeffs could cope with light courier duties with appropriate support. He stated Mr Jeffs would not be able to cope with heavy lifting, repetitive bending or heavy and repetitive upper limb activities. Dr Williams expressed the opinion that he estimated Mr Jeffs would have a work capacity limited to a further two to three years. He will need an arthroplasty for his right knee. His right shoulder is inoperable. Dr Williams expressed the opinion that a lot of other people in this situation would have stopped all activity by now.
 In re-examination Dr Williams stated that the injuries sustained by Mr Jeffs in the plane crash were severe trauma. He stated that overall the force of the crash exacerbates symptoms from an underlying pathology if it does not create the new pathology. The two key areas of significant new pathology are in the lumbar region with the fracture and in the shoulder with the rotator cuff and the biceps tendon rupture. In addition to these matters the plane crash exacerbated the symptoms in Mr Jeffs’ right knee and brought forward the need for a knee replacement by about five years. The need for a right knee arthroplasty will come in the next two to three years.
Dr Stephen Proud
 Dr Stephen Proud is a general adult psychiatrist. He has particular expertise in drug and alcohol addiction, old age psychiatry and psychotherapy with broad experience in post traumatic stress symptoms.
 Dr Proud prepared two reports concerning Mr Jeffs dated 21 April 2004 and 22 July 2005. These reports were tendered and marked Exhibit P3.
 Dr Proud set out Mr Jeffs background and working life. In the report dated 21 April 2004, he noted there was no family history of psychiatric problems and that Mr Jeffs had no psychiatric problems prior to the plane crash. He stated that Mr Jeffs had not received any specific psychiatric treatment for the psychiatric consequences of the plane crash apart from three sessions of counselling.
 Dr Proud stated that Mr Jeffs gave the impression of a stoic person who was down-playing his illness and who tended to focus on his wife’s problems rather than his own. He described Mr Jeffs as suffering from post traumatic stress disorder and major depression which was wholly and solely related to the plane crash of 30 October 1998. He described his capacity for work from a purely psychiatric point of view as mild, permanent partial incapacity for work secondary to his major depression which he noted will persist for the foreseeable future. He noted that part of his major depression is related to his post traumatic stress disorder, and his wife’s disorder, and will respond to treatment. However, he also stated that a part of his major depression is related to ongoing problems with pain in his lower back and knee and this appears to be permanent hence he will be left with some permanent depressive symptoms.
 In his report dated 22 July 2004, Dr Proud noted there had been no significant change to Mr Jeffs physical or psychiatric condition since he had last examined him. He commented that Mr Jeffs’ sex drive, concentration, short term memory, motivation and enjoyment are low. He had difficulties sleeping and suffered nightmares about the plane crash and suffers anxiety with respect to flying in planes.
 Dr Proud considered that Mr Jeffs would benefit from counselling and antidepressants but noted Mr Jeffs reluctance to participate in such treatment.
 Under cross examination, Dr Proud agreed that on the account given to him, Mr and Mrs Jeffs were both out of the plane fairly quickly. He agreed Mr Jeffs had returned to full time employment. He also agreed it is good from the point of view of a person’s psychiatric health that they could go back to work. He stated he had seen many people force themselves to do this and then crack. Work distracts Mr Jeffs from his symptoms.
 Dr Proud agreed it was his opinion that from a psychiatric point of view, Mr Jeffs was fit to work. He also agreed that Mr Jeffs was at an age that would lead to age degenerative change in his spine. He agreed that it was possible some of Mr Jeffs’ problems were connected with the aging process. Dr Proud gave evidence Mr Jeffs is coping with the long periods of driving associated with his work. He stated that Mr Jeffs finds the work tiring and has to stop and stretch every 50 kilometres or so because of the pain in his back. Dr Proud considered Mr Jeffs ability to continue to cope with his work was a tribute to his personality and because of financial necessity. He agreed that from a psychiatric point of view, Mr Jeffs could keep on with his job. Dr Proud had suggested Mr Jeffs go to counselling, but Mr Jeffs had declined. If he did undertake such treatment it would assist him and there is treatment available in Western Australia.
 Under re-examination, Dr Proud said he thought the treatment more likely to help with issues of guilt and depression than with post traumatic stress disorder.
Clinical Psychologist Lynette E. Mutton
 Ms Mutton prepared a report dated 31 August 2005 and a treatment summary dated 31 August 2005. These documents were tendered Exhibit P18. In this report, Ms Mutton sets out the psychological symptomatology that are attributed to the plane crash (page 46):
• Re-occurring feelings of depression
• Frequent bouts of weeping
• Acute anxiety, particularly at the thought of being in a plane
• Extreme anxiety whilst in a plane
• Repeated flash-backs of the crash
• Disturbing memories of the crash and the injured passengers
• General sleep disturbance – 4 to 5 times a night
• Ongoing nightmares
• Reduced libido
• Significantly heightened irritability
• Exaggerated ‘startle’ response
• Uncharacteristic outbursts of anger
• Social and personal withdrawal
• Severe deterioration of self-esteem
• Persistent and pathological guilt feelings over his perceived ‘inadequacies’ at the plane crash, particularly in relation to his wife’s injuries.
• Disruption of cognitive functioning:
1. Inability to concentrate
2. Memory problems
3. Inability to think clearly or make decisions
4. Acute deterioration in frustration tolerance
These symptoms are characteristic of Chronic Post Traumatic Stress Disorder (CPTSD) with Concomitant Depression.”
 Ms Mutton noted that areas of difficulty for Mr Jeffs included the loss of the close intimate relationship he used to enjoy with his wife and other personal and social relationships, difficulties in coping with stress, feelings of frustration, lack of fitness, loss of effective cognitive functioning and loss of self esteem.
 Ms Mutton describes Mr Jeffs as a fiercely independent self sufficient man who does not share his problems readily. She does suggest his undergoing psychological sessions once the compensation process is completed.
 Under cross examination Ms Mutton acknowledged that she may have been in error in listing a broken arm as part of the physical injuries suffered by Mr Jeffs. She stated in her opinion, Mr Jeffs return to work was probably premature in terms of his physical and emotional injuries. She described both Mr and Mrs Jeffs as minimising and ignoring a lot of their physical and emotional injuries. They were trying very hard to get on with their lives. She considered Mr Jeffs was psychologically capable of working in his courier business although it cost him a great deal emotionally. She agreed the courier job does provide him with independence, flexibility to manage his pain better and self esteem. Ms Mutton stated it was her opinion Mr Jeffs would continue to work as long as he can but the depression is still an issue.
Dr John Parry
 Dr Parry, who is a general practitioner, prepared two reports dated 18 March 2002 and 9 September 2005 – Exhibit P13. He gave evidence that he would charge the recommended Commonwealth PBS book charge for a long consultation which is $80.
 In his report dated 9 September 2005, Dr Parry states he has treated Mr Jeffs since 4 September 2001. He described Mr Jeffs as very stoic about his problems. He described Mr Jeffs’ problems as inability to sleep, neck pain and right shoulder pain related to the plane crash. He was giving Mr Jeffs anti-inflammatory treatment. Dr Parry stated under cross examination that he was aware Mr Jeffs had his own courier business. It was Dr Parry’s opinion that although Mr Jeffs was working it was with difficulty.
 I accept the evidence given by each of the medical specialists called for the plaintiff. Their evidence is substantially supported by the evidence given by specialists called for the defence.
Dr Max Baumwol
 Dr Baumwol is a general surgeon specialising in general surgery and laparoscopic surgery. Dr Baumwol prepared a report dated 13 July 2004 concerning Mr and Mrs Jeffs. This report is Exhibit D14.
 Dr Baumwol described the injuries Mr Jeffs sustained in the plane crash as follows (page 2):
“At Darwin Hospital, Mr. Jeffs injuries were as follows:
1. Compressed fracture of the L1 vertebra.
2. Whiplash injury to the neck.
3. Musculo skeletal pains to the right shoulder and back.
4. Suspected intra abdominal injury, but after observation this was cleared.
 Dr Baumwol made the following findings on examination (page 3):
“MR JEFFS – a pleasant gentleman with no obvious anxiety. Cardio vascular system and abdomen were normal for age. Neck movements were full, but a little restricted at full extension. There was an old biceps tendon injury but good movements of shoulder and arms. Straight leg raising to 80 degrees on both sides with no pain. Good movements of knees but bilateral crepitus evidence. No gross injury or abnormalities detected.”
 Dr Baumwol noted that Mr Jeffs had made a remarkable recovery from the trauma of the plane crash. He referred to Mr Jeffs having recurrent aches in the neck, back right shoulder and right knee. This does not preclude him from working but he does tire easily and has difficulty with heavy work. He stated (page 4):
“Though Mr Jeffs has recovered remarkably and is working as a Courier Driver, he would not be considered fit for heavy duties because of his age. Most of his pains are musculo skeletal in origin. X-ray shows degenerative changes in joints.”
 Dr Baumwol was aware Mr Jeffs is currently employed as a courier driver in Wagin. He also gave evidence as to the desirability of concluding the claim.
 Under cross examination, Dr Baumwol agreed that when he examined both Mr and Mrs Jeffs, there was no evidence of any conscious or unconscious exaggeration of symptoms. He also agreed that Mr Jeffs wants to do as much as he can with respect to employment and he is doing what he can.
Dr Sam Febbo
 Dr Febbo is a consultant psychiatrist. Dr Febbo prepared a report concerning Mr Jeffs dated 8 November 2004 - Exhibit D20.
 Dr Febbo described the physical pain that Mr Jeffs experiences. This is pain in his neck and shoulder on a daily basis. He has difficulty lifting objects and walking is limited to a maximum of one kilometre. With respect to his mental state, Mr Jeffs had reported to him that initially after the accident he was sometimes tearful. His sleep was disturbed requiring medication. He experienced nasty dreams in the first year after the accident.
 Mr Jeffs reported depression setting in after he returned to work. His mood deteriorated, he became irritable and angry. He reported that it became increasingly evident the company did not want him anymore. He left his employment with his then employers in May 2001 because of his wife’s fear of flying.
 Dr Febbo stated that he did not identify the presence of any “conscious exaggeration of symptoms or a deliberate attempt to feign injury for the purpose of personal gain”. In the course of his summary and opinion in a report dated 8 November 2004, Dr Febbo stated as follows (page 5):
“From a psychiatric perspective, Mr Jeffs reported a deterioration in his mental state that followed the accident. Initially there was significant stress related to Mr Jeffs’ wife’s mental state and her inability to fly and the perception that his employers were unsupportive and had not honoured an agreement for him to obtain a permanent position.
Mr Jeffs reported having experienced some depressive and anxiety symptoms and some of the anxiety symptoms he reported fell within the category of Post Traumatic Stress Disorder.
By the time of the interview, there had been significant improvement in Mr Jeffs’ mental state, however, he continued to report the presence of some depressive and anxiety symptoms. The severity and extent of these symptoms are in keeping within the presence of an Adjustment Disorder with mixed anxiety and depressed mood.
In my view, Mr Jeffs is not incapacitated from working because of this condition and I note that he is working at the present time.
In my view, there can be some further improvement in Mr Jeffs’ mental state and I would suggest the input of a clinical psychologist. I would suggest in the region of twelve to fifteen sessions over the next five to six months.”
 Dr Febbo gave evidence that with respect to Mr Jeffs, there was some stress related to the compensation litigation process, however, there was also concern over his wife’s physical condition and his physical symptoms. From a psychiatric point of view, there was nothing to stop Mr Jeffs from engaging in his pre-accident activities including sports and recreation.
 Under cross examination, Dr Febbo agreed that knowing Mr Jeffs physical as well as his mental problems, he was doing as much as he possibly could in terms of work.
 In re-examination, Dr Febbo confirmed his opinion that with time, Mr Jeffs would continue to improve.
Christopher John Edwards
 Mr Edwards is the Human Resources Manager for Arnhemland Progress Association. When he commenced working with the Association in 1998, the salary for the store manager was $39,000 per annum. The assistant manager’s salary was $27,500 per annum. He gave evidence that the current combined salary for a couple filling the position of manager and assistant manager at Milingimbi Store is $80,000.00. The couple can then split the income as suits them.
 Arnhemland Progress Association currently have five of their own stores plus eight consultancy stores, all except three of these have a husband and wife as manager and assistant manager. There is a standard commencing package, increases occur on average every two years.
 The superannuation component of the package is 9 per cent. Managers in remote communities are paid 2 per cent above the legislative requirements. The current budget for the rent to be paid is $120 a week. It was his assumption that this amount had not changed.
 All applicants undergo pre-employment medical examinations to deem they are fit to carry out their duties as required. There is a certain amount of reasonably heavy physical work required.
 Mr Edwards gave evidence that in his experience people generally stay in stores management jobs on average around five years. It is quite common for people to stay longer. One couple retired after 17 years.
 Under cross examination Mr Edwards gave evidence that there are other community centre stores that exist outside of his organisation. He estimated these would be in excess of 200. Most of them employ a husband and wife team in a similar way. He stated Arnhemland Progress Association also have stores outside of the Northern Territory including in Western Australia. Mr Edwards stated he could not recall any application from Mr and Mrs Jeffs to go to some other place after they left Palumpa.
 Mr Edwards agreed that the legislation changed in 2003 increasing superannuation to 9 percent. When the legislation changed, Arnhemland Progress Association increased their superannuation payment to 11 percent. Before 2003 it was much lower.
 Mr Edwards tendered a document titled “Employment Separation Certificate” – Exhibit D21. This document is dated 1 November 2002. It states Mr Peter Jeffs was employed on an end of season contract between 8 June 2002 and 21 October 2002. A letter of the Arnhemland Progress Association dated 30 August 2004 was tendered and marked Exhibit P22. This letter details the salary package offered to Mr and Mrs Jeffs had they commenced work at the Milingimbi store in December 1998.
Ronald George Jones
 Mr Jones is the technical claims manager for Allianz. Mr Jones currently has conduct of the recovery of workers compensation expenses in respect of Mr and Mrs Jeffs.
 The total figure to be recovered in respect of Elaine Jeffs in respect of injuries received in the plane crash on 30 October 1998 is $79,168.13. This includes a component for weekly payments of compensation.
 The total for Elaine Jeffs is $34,375.01 gross. Between 2 November 1998 to 15 July 1999, weekly payments were made at the rate of $528.25 gross. From 16 July 1999 to 17 February 2000, weekly payments were made at the rate of $414.52 gross.
 With respect to Peter Jeffs the total amount of compensation was $33,776.80. This included weekly payments totalling $19,231.00 gross. All of these payments were made between the period 2 November 1998 and 20 April 1999 at a gross weekly rate of $721.16 gross.
 The Court was advised that these are all agreed figures and that in addition to agreeing to those figures further special damages were agreed in respect of Mrs Jeffs in the sum of $1,711.55 and Mr Jeffs in the sum of $1,770.85.
 Mr Jeffs presented as a credible and reliable witness. I accept his account of the plane crash. This account is supported by the evidence of Mrs Jeffs. I find it was, for both of them, a terrifying experience. Mr Jeffs suffered pain at the time particularly in his back where he had sustained a broken vertebrae. He suffered a compressed fracture of the L1 vertebra, minor fractures to L2, L3 vertebra, whiplash injuries to his neck and shoulders, swelling around the stomach region, multiple soft tissue injuries, post traumatic stress and anxiety. He was admitted to Royal Darwin Hospital for treatment and subsequently needed care and attention from relatives. He returned to work on 9 March 1999. He was still suffering pain at that time. He has continued to endure pain particularly in his back, right shoulder and right knee. These injuries affected his capacity to work. He nevertheless persisted with employment. He suffers feelings of apprehension when travelling by plane. He has suffered psychological problems, he has frightening dreams and interrupted sleep. He easily becomes irritable. Dr Proud gave evidence, which I accept, that Mr Jeffs has suffered Post Traumatic Stress Disorder and major depression wholly related to the plane crash. He is no longer able to participate in many of his pre-accident interests and hobbies. This includes golf, archery, running, long bush walks. His relationship, including his sexual relations with his wife, have been detrimentally affected. I would assess damages for pain and suffering as follows:
Pain and suffering $ 90,000.00
Interest on past pain and suffering being
4% on 60% of pain and suffering allowance
for 7 years = 4% of $54,000 x 7 $ 15,120.00
 In the reasons for judgment with respect to Mrs Elaine Jeffs, I have detailed my reasons for rejecting the submission by Mr Rose SC for the second defendant that the plaintiff has no entitlement to damages for past loss of earnings. These reasons are equally applicable to Mr Peter Jeffs. I allow a claim for past loss of earnings with respect to Mr Jeffs as follows:
1. PAST LOSS OF EARNINGS
(i) 30.10.98 – 20.04.99
Claim @ ALPA Earnings Rate
gross p/w $ 750.00
Less tax with zone rebate
(ITR @ pg 31) $ 170.20
net p/w $ 579.80
26 weeks x $579.80 = Sub Total $ 15,074.80
(ii) 01.07.99 – 30.06.00
No Loss Established
(iii) 01.07.00 – 30.06.01
No Loss Established
(iv) 01.07.01 – 30.06.02
Claim @ ALPA Earnings Rate
(Evidence Mr C Edwards) gross p/a $ 41,000.00
gross per week $ 788.46
Less tax with zone rebate $ 189.00
net per week $ 599.46
52 weeks @ $599.46 per week = net $31,171.92
Less actual net earnings
(ITR pg 62 exclude Centrelink) $ 4,272.00
Net Loss Sub Total $ 26,899.92
(v) 01.07.02 – 30.06.03
Claim at ALPA Earnings Rate $ 43,000.00
(Evidence Mr C Edwards gross p/a
gross per week $ 826.92
Less tax with zone rebate $ 204.00
net per week $ 622.92
52 weeks @ $622.92 net per week $ 32,392.00
Less actual net earnings
(ITR @ pg 75) $ 17,410.00
Sub Total $ 14,982.00
(vi) 01.07.03 – 30.06.04
Claim at ALPA Earning Rate net p/a $ 32,391.00
net per week $ 622.90
Less actual net earnings
ITR @ pg 91 i.e. $24,305 less
$3,163.50 = $ 21,141.50
Sub Total $ 11,249.50
(vii) 01.07.04 – 30.06.05
Claim at ALPA Earning Rates p/a $ 46,000.00
(Evidence Mr C Edwards)
gross per week $ 884.61
Less tax with zone rebate $ 184.00
net p/w $ 700.61
52 weeks x $700.61 $ 36,431.72
Less actual net earnings
ITR @ pg 104 i.e. $10,223 less
$717.91 = $ 9,505.09
Sub Total $ 26,926.63
(viii) 01.07.05 – 12.09.05
Claim at ALPA Earning Rate
10 weeks @ 700.00 net per week $ 7,000.00
Less projected earnings @ $300.00
net per week from Partnership $ 3,000.00
Sub Total $ 4,000.00
(ix) Fox v Wood Payment
tax paid on WC
$19,231.00 gross - $15,074.00 net = $ 4,157.00
TOTAL PAST LOSS OF EARNINGS $ 103,285.85
2. PAST LOSS OF SUPERANNUATION BENEFITS
(i) 30.10.1998 – 21.04.1998
26 weeks x 9% x $750 $ 1,755.00
(ii) 01.07.01 – 30.06.03
Gross ALPA income 2 years $ 82,000.00
Actual gross income 2 years (ITR @ pg 62)
Year ending 30/6/02 which shows gross income
of $12,089 and pg 77 which states gross income
is $20,572 for year ending 30/6/03. Totalling
Balance is $49,339
$49,339 x 9% = $ 4,440.51
(iii) 01.07.03 – 30.06.04
Gross ALPA income $ 43,000.00
Less actual gross income
(ITR @ 91) $ 24,305.00
$18,695 x 9% = $ 1,682.55
(iv) 01.07.04 – 12.09.05
Claim for superannuation disallowed as
during this period had his own business
TOTAL LOSS SUPERANNUATION BENEFITS $ 7,878.06
6. PAST LOSS OF ALPA BENEFITS
Accommodation 50% per week $ 60.00
Leave Loading (after tax) p/w $ 8.00
Isolation Leave (after tax) p/w $ 8.00
Travel Allowance p/w $ 48.00
Power p/w $ 10.00
Vehicle p/w $ 20.00
Phone p/w $ 10.00
Sub Total $ 164.00
30.10.1998 – 15.04.1999
25 weeks x $164 = $ 4,100.00
01.07.2001 – 30.06.2005
4 years = 208 weeks x $164 = $ 34,112
minus 6 wks leave p/a 24 x $164 = $ 3,936
Balance = $ 30,176.00
TOTAL PAST LOSS ALPA BENEFITS $ 34,276.00
8. INTEREST ON PAST LOSSES
(i) Past Loss Earnings $ 103,285.85
Less amount paid in Workers Comp $ 19,231.00
= $ 84,054.85
4.5% x 5 x $84,054.85 = $ 18,912.34
$7,878.06 x 4.5% x 5 years = $ 1,772.56
(iii) Specials $1,770.85 x 4.5% x 6.88yrs $ 548.25
(iv) Past loss of ALPA benefits
$34,276.00 x 5 years x 4.5% $ 7,712.10
TOTAL INTEREST $ 28,945.25
3. SPECIAL DAMAGES
(i) WC Statutory allowance to be repaid to Allianz Insurer
(agreed) $ 14,545.80
(ii) Outstanding medical, physio, pharmaceutical and
travel expenses (agreed) $ 1,770.85
 In the reasons for judgment with respect to Mrs Jeffs, I have stated the reasons why damages for voluntary services is allowed with respect to Mrs Jeffs’ sister, Valerie Lee.
 Those reasons are equally applicable to Mr Jeffs accordingly I award damages in respect to voluntary services as follows.
9. VOLUNTARY SERVICE
(i) Mrs Jeffs’ daughter Teisha (10.11.98) $ 750.00
(ii) Mrs Jeffs’ sister Valerie Lee
17.11.1998 – 31.12.1998
6 weeks @ 10 hours per day @ $17 p/h
= 6 x 70 x $17 $ 7,140.00
(iii) 01.01.1999 – 29.01.1999
4 weeks 4 hours per day @ $17 p/h
= 4 x 28 x $17 $ 1,904.00
Sub Total $ 9,794.00
Plus interest @ 9% commercial
Rate for 6.5 years $ 5,729.49
TOTAL $ 15,523.49
50% of $15,523.49 = $ 7,761.74
10. FUTURE MEDICAL AND OTHER EXPENSES
I have allowed the amount as claimed on behalf of the plaintiff for future medical expenses.
Acceleration and/or increased likelihood of
surgery to knee, shoulder and hip, plus need
for home help and gardener $ 10,000.00
Counselling – see report of Mutton
6 sessions @ $110 each $ 660.00
$150 pa or $2.88 p/wk x 173.5 $ 499.68
Gym and Pool $10 p/wk x 173.5 $ 1,735.00
Review by GP – see report of Williams
10 consultations pa @ $55 per visit = $ 550.00
TOTAL $ 13,444.68
 Mr Jeffs is now 66 years of age. His intention is to remain in employment till he is 70 years of age. He may well work past this age if he is physically able to do so. He has demonstrated through the years since the plane crash occurred, his determination to remain in the work force. He has continued in employment despite enduring considerable pain particularly in his back, right shoulder and right knee. This pain has reduced his capacity for work, it now takes him longer to perform certain tasks. The pain is tiring and debilitating. The evidence of Mr Jeffs is substantially supported by the medical evidence presented in these proceedings. Dr Williams estimates that Mr Jeffs will undergo progressive degenerative change within the next two to three years. Dr Williams gave evidence to the effect that apart from the consequence of the injuries from the plane crash, Mr Jeffs would be expected to have some elements of degenerative change given his age. Dr Williams has recommended a physiotherapy and exercise program. Dr Williams, in detailing Mr Jeffs’ injuries and his continuing involvement in employment, noted that many people would have given up work well before this point and stopped all activity by now.
 Mr Jeffs is to be commended for the efforts he has made to work through his pain and overcome the effects of his injuries. Dr Proud commented that Mr Jeffs was a stoic person who downplayed his own illness and tended to focus on his wife’s problems rather than his own. He described Mr Jeffs as suffering from Post Traumatic Stress Disorder and major depression. Counselling has been suggested but to date Mr Jeffs has not wished to seek any counselling or treatment for the psychological effects of his accident. From a psychiatric point of view, Dr Proud assessed Mr Jeffs as fit for work.
 The medical evidence, particularly from Dr Williams and Dr Proud, is that some of his physical limitations are associated with the ordinary aging process of the body. Taking into account the aging factor, Mr Jeffs’ past history of changing employment and his willingness to accommodate his wife’s desire to be near family, I am not persuaded Mr Jeffs and his wife would have remained working for Arnhemland Progress Association for 10 years in accordance with their expressed intent in 1998.
 Part of their reason for moving from Palumpa to Wagin in May 2001, was Mrs Jeffs’ expressed desire to be closer to family. While I have found this desire became stronger because of the effects of the plane crash and accelerated their decision to return to Western Australia, it is a factor that would be expected to play a part in their future plans. I have already detailed the other reasons for their decision to leave the Northern Territory.
 In June 2004, Mr Jeffs purchased a van and commenced his own courier business. This business gives Mr Jeffs a level of independence. It is work he feels capable of performing. It is work he enjoys. Mr Jeffs has demonstrated in periods of time since the accident that he is capable of sustained periods of work. For him future employment would appear to be more dependent upon opportunities available to him and the choice of work he enjoys rather than his own limitations resulting from the plane crash.
 There is medical evidence from Dr Williams that Mr Jeffs’ physical condition can improve with an exercise program and that the closure of this litigation will have a beneficial effect.
 I do not propose to make an award for future loss of earnings.
 I summarise the award of damages as follows:
Pain and suffering $ 90,000.00
Interest on past pain and suffering being
4% on 60% of pain and suffering
allowance for 7 years $ 15,120.00
Past Loss Earnings $ 103,285.85
Past Loss Superannuation Benefits $ 7,878.06
Past Loss ALPA Benefits $ 34,276.00
Interest on Past Losses $ 28,945.25
Special Damages (as agreed)
Allianz Insurer $ 14,545.80
Medical, physio, pharmaceutical & travel expenses $ 1,770.85
Half Total $15,523.00 $ 7,761.74
Future Medical & Other Expenses
As previously itemised $ 13,444.68
TOTAL AWARDED $ 317,028.23
 The order I make is that there be judgment for the plaintiff in the sum of three hundred and seventeen thousand twenty eight dollars and twenty three cents.
 The parties are at liberty to apply on the question of costs.