Abduramanoski v PHILIPPE - [2004] WADC 110

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ABDURAMANOSKI -v- PHILIPPE [2004] WADC 110

CORAM: NISBET DCJ

HEARD: 26, 29-31 MARCH & 1 APRIL 2004

DELIVERED : 1 JUNE 2004

FILE NO/S: CIV 3262 of 2002

BETWEEN: SUKARNO ABDURAMANOSKI
Plaintiff
AND
STEVEN JAMES PHILIPPE
Defendant

Catchwords:

Damages - Negligence - Motor vehicle accident - Personal injuries - Assessment - 35yearold male (37.75 at trial) - Minimal pathology but significant disability - Alleged failure to mitigate Psychiatric injury - Turns on own facts

Legislation:

The Motor Vehicle (Third Party Insurance) Act 1943 (as amended)

Result:

Award of $194,429.92

Representation:

Counsel:

Plaintiff: Mr T H Offer
Defendant: Mr D R Sands

Solicitors:

Plaintiff: Trewin Norman & Co
Defendant: Talbot & Olivier

Case(s) referred to in judgment(s):

Jongen v CSR Ltd [1992] A Tort Rep 61,706 (81-192)

Case(s) also cited:

Useinoski v McCutcheon [2003] WADC 227

NISBET DCJ: The plaintiff claims damages for the injuries he says he sustained in consequence of the negligent driving of the defendant.

Pleadings

By his statement of claim the plaintiff pleads that on 25 September 2001 he was driving his motor vehicle on Benara Road through its intersection with Altone Road when a motor vehicle driven by the defendant collided with the rear of his vehicle. He then pleads that this collision was caused by the negligent driving of the defendant and pleaded that that liability had been admitted. The defendant, by his defence, admitted all of these matters.
In consequence of the defendant's negligence the plaintiff pleaded that he sustained "injuries, loss, pain, discomfort, loss of earnings and has incurred and will in future incur medical and other expenses." He then proceeded to particularise his injuries and symptoms as headaches, dizziness, blurred vision, pain to the ears, pain to the jaw, pain, soft tissue and ligamentous injuries and restricted mobility to the neck, moderate sized posterocentral C6/7 disc prolapse indenting the antero‑cord and disc bulging at C5/6, pain and restricted mobility to the shoulders, pain to the chest, ribs, arms, left wrist; pins and needles, tingling and numbness to the hands, pain and restricted mobility to the back, disc protrusion at the level of L5/S1, pain to the knees, pain and weakness to the legs, numbness and burning sensation to the left thigh, pain to the ankles, anxiety, depression and disturbed sleep.
The defendant denied that the plaintiff had sustained any of these injuries and was suffering from any of those symptoms and pleaded in the alternative that if he did endure any of those injuries or symptoms then they were "caused and/or contributed to by a back injury he sustained on or about 22 May 1995 [and] on or about 6 August 1993". There was then a pleading by the defendant that the plaintiff had failed to mitigate any loss he may have suffered by failing to continue with rehabilitation and counselling.

The accident

The plaintiff testified that he was on his way home from work at about 5.45 pm driving along Benara Road when at its intersection with Altone Road he was obliged to stop because the traffic lights were against him. Benara Road was four lanes wide at that point but after the intersection reduced to one lane in each direction. While stationary at the intersection another vehicle was on the plaintiff's right‑hand side (travelling in the same direction) which the plaintiff thought was a 4‑wheel drive towing a trailer. When the lights turned green the plaintiff and the other vehicle proceeded through the intersection together, with the plaintiff giving way to the vehicle on his right which then slowed to a standstill in order to make a right‑hand turn shortly after the intersection. At this point the plaintiff said:
"… I heard just tyres just screeching and then the vehicle slammed into the back of mine.
… The screeching was about a good two, three seconds long actually. It was quite a long screeching and I couldn't figure out where they were coming from because I had – basically when I was at the lights there was no indication of any vehicle behind me, that's when I heard the screeching.
…[The impact] was quite severe. It gave me a good jolt.
I remember hitting the back seat – my neck hitting the back seat and the pressure and the pain in my lower back and my neck.
… [My vehicle] ended up on the side of the road, a kerb area or something." (T57‑59)
The defendant gave evidence which largely corroborated the plaintiff's evidence as to the circumstances in which the collision occurred. He said:
"The lights changed, there were a number of vehicles at the intersection, proceeded through the lights, it goes from two lanes to one so there's a need for some merging and so forth of traffic and I was attending to my mirrors and over my right shoulder to make sure that I could merge safely and when I returned my attention back to in front of me a couple of vehicles in front were close to stopping or almost stopped and I had to brake suddenly.
… I recall still accelerating up to ‑ I wouldn't imagine I was doing any more than 40 or 50 kilometres an hour [before] I braked … but I was aware I wasn't going to stop in the space available [and I collided with the vehicle in front of me]." (T342‑345)
There was a relatively minor point of difference between the plaintiff and defendant as to the force of the collision, the plaintiff saying that his vehicle was knocked off the road and the defendant saying that whilst he thought the collision did move the plaintiff's vehicle it was driven off the side of the road after traffic had cleared after the collision.
The plaintiff gave evidence that there was not a great deal of damage to his vehicle although he did not see the damage completely, only where his towbar had been bent. Nevertheless he accepted that the area of damage to his car was to the tail lights, the rear tow bar, the rear stone tray and the rear bumper bar all of which were fixed for a price of something a little over $1,000 including towage. (T202) The defendant said that he did not observe a great deal of damage to the plaintiff's vehicle and that most of the damage seemed to have been sustained by his car. He was surprised at the cost of the repairs to his vehicle and having regard to the extent of damage to his car he had hoped that his vehicle would be written off and was surprised when it wasn't. (T345) Hence, whilst there was some attempt by the defendant's counsel to suggest that this was not a particularly significant collision by reason of the minimal damage to the plaintiff's vehicle, in the end result the evidence suggests that it wasn't an insignificant collision.

Plaintiff's injuries and symptoms

Immediately after the collision the plaintiff said that he experienced pain in his neck and lower back and said that he "couldn't move at all" and so he remained in his vehicle. Bystanders, offering assistance, called for an ambulance which attended at the scene and took the plaintiff to the Joondalup Health Campus where he spent the next nine days. Whilst he was in hospital he started feeling worse the day after his admission and from that time on a number of other problems emerged. Firstly, he said he was having severe chest pains and it was difficult for him to breathe. Then he had problems with his shoulders and pains in the knees and ankles and numbness in the hands which were like pins and needles. He was discharged after nine days in hospital and commenced seeing his general practitioner Dr Ishak, the first consultation being on 4 October 2001. From the date of his discharge from hospital through until trial the plaintiff said that there is a gradual diminution in some of his symptoms such that his problems with his ankles and knees all subsided and whilst the tingling went away from his left hand he did have problems with his right hand and the balance of his symptoms remained with him namely those associated with neck and lower back pain and his right shoulder and arm pains.
The plaintiff also conceded that there was a diagnosis of depression which he had "come to understand" however he still refused to believe that his depression was in some way responsible for the physical pain he felt, notwithstanding that he has received expert advice that his depression is a large cause of his physical symptoms. The plaintiff was so resistant to acceptance of the diagnosis of depression that he stopped taking his anti‑depressant medication Aropax because he wanted to prove to his doctors that his pains were genuine pains and not coming from his head, to use his expression. During the course of giving evidence about his diagnosis of depression and the like the plaintiff became visibly upset. This, I think, was a symptom of his depression firstly, and secondly, due to some cultural influences. Here, it is as well to record that the plaintiff is an immigrant to this country having been born in Macedonia on 7 July 1966, arriving in Australia with his family just before he started school. After leaving school and doing a TAFE course for a year he went to Macedonia for a holiday and met his wife, whom he married in Macedonia in 1984, returning to Australia in 1985. I formed the distinct impression that it was culturally difficult for the plaintiff to admit that he had a psychiatric disorder. I may be mistaken in ascribing his difficulty in facing a diagnosis of a psychiatric disorder to cultural factors, they may be purely psychological ie, part of the plaintiff's personality make‑up, but whatever the cause I thought him genuine in his distress at being diagnosed with a psychiatric disorder.

Medical opinion

In considering the various medical opinions expressed about the plaintiff's symptomatology one first has to look at his medical history. There are two events which require close consideration. The first of these was on or about 6 August 1993. The plaintiff, during the course of his employment as a courier driver with Courier Australia, was travelling to do a pick up in the Welshpool Kewdale area late in the day when he was heading down his customer's street and noticed a vehicle stationary at a stop sign on his left about 200 metres away. Within a very short distance of that intersection the driver on his left pulled out in front of him and the plaintiff was unable to avoid a collision despite taking evasive action. The other driver was a P‑plate driver who drove straight into the passenger side of the plaintiff's van. The plaintiff's motor vehicle was written off as being uneconomical to repair. Whilst he suffered neck pain and what he described as a soft tissue injury in that accident which forced him out of work for a couple of months and obliged him to have treatment including physiotherapy, he made no claim for damages and did not even bother to see a lawyer. He was paid for loss of income but the evidence was not clear as to who he was paid by. After this accident the plaintiff commenced employment again with Courier Australia as a courier driver but ultimately that became uneconomical for him as Courier Australia changed its payment rates and the like and accordingly, he ceased work for Courier Australia and went on unemployment benefits on 16 September 1994. During this period the plaintiff decided to retrain himself to resume his studies as an engineering draftsman and in order to support himself and his family he undertook part‑time cleaning work.
The second matter relates to his admission to Wanneroo Hospital on 22 May 1995. He said that he was just getting into his car when his back "gave way". By this he meant his lower back and that he experienced obviously significant and immediate pain. He was hospitalised for four days. After his discharge from hospital he said he did not really have any continuing pain. There were no further incidents and he commenced cleaning for Linfoot Cleaning on or about 28 August 1995. This was heavy commercial cleaning work and he additionally obtained further employment with Berkeley Challenge Cleaning on 10 September 1995. This was also heavy work. He was the sole cleaner for an entire floor of the Police Traffic Branch at Wellington Street in East Perth. He finished with Linfoot Cleaning in December 1995 and with Berkeley Challenge in about March 1996 after which he continued with his courses to prepare him to get back into computer engineering drafting. He then obtained employment with Elevator Manufacturers in June 1996. He next obtained work with Pioneer Water Tanks in June of 1999 when the hours he was being offered at Elevator Manufacturers were reduced by reason of a downturn in the company's business. It is sufficient therefore to record that the plaintiff said he never had any difficulties with his lower back in respect of either of the 1993 or 1995 incidents, amply demonstrated in my opinion by the fact that he resumed full time employment and continued in full time employment until the motor vehicle accident of 25 September 2001. In this context then it is important to note that when the medical evidence refers to radiological findings, and the results of MRI scans and the like depict some changes in the plaintiff's spine, these are in consequence of previous traumas (which of the two is not certain) and which were healed. This was best summed up by Mr Peter Watson, a neurosurgeon, who was shown the medical records from the plaintiff's admission to Wanneroo Hospital in 1995 which he had not previously seen. Among those records was a radiologist's report dated 26 May 1995 performed by Joondalup Radiology. Mr Watson compared those findings with those which he had obtained after the plaintiff underwent an MRI examination following his motor vehicle accident on 25 September 2001 and he said that the results of the MRI scan shows disc annular tears which were the bulges identified on the CT scan of 26 May 1995 performed by Joondalup Radiology. Mr Watson said:
"The MRI scan just shows disc annular tears so these were bulges at that time seen on the CT scan and as they have healed they have just remained as a tear, a small tear in the lining of the disc. But they are no longer bulging."
So, in other words, the radiological and MRI examinations performed on the plaintiff of 25 September 2001 did not reveal any new injury to the plaintiff's spine but rather confirmed the existence of pre‑existing but healed and obviously asymptomatic injuries which were noted following the plaintiff's admission to Wanneroo Hospital on 22 May 1995 and which could have resulted from an incident that occurred on or about that date or shortly before back as far as the accident of 6 August 1993. This history explains why most of the medical practitioners did not think there was any significance in the plaintiff's radiological findings after the accident of 25 September 2001.
With this history in mind therefore the most important presenting feature of the plaintiff to all of the medical practitioners who have seen him is that none could find any radiological explanation or other objective pathology for his presentation save for a deep seated entrenched major depressive illness accompanied by anxiety and leading to quite abnormal illness behaviour. [Again I have to remark: here is another plaintiff who has seen far too many doctors and called far too many medical witnesses, the list of whom should have been pruned pursuant to the provisions of O 36A.] I will now deal in turn with the various medical opinions expressed about the plaintiff.
When the plaintiff first presented to his general practitioner Dr Ishak on 4 October 2001 Dr Ishak thought him a man in marked distress and observed that he was wearing a neck collar and walked very slowly with an obvious antalgic gait and who was uncomfortable whilst sitting. There were obvious intermittent facial expressions of severe pain with minimal use of his hands and an inability to point out with his hands the sites of the pain he said were coming from his neck and back. Because of the pain symptoms expressed by the plaintiff Dr Ishak was unable to subject him to a thorough physical examination and it was difficult to obtain an adequate history from him because he appeared mentally exhausted. He diagnosed severe soft tissue injury of the acceleration/deceleration type involving the cervical, thoracic and lumbar spine with associated soft tissue injuries to the chest wall and knees. Dr Ishak managed the plaintiff with prescriptions for strong painkillers, anti‑inflammatories, muscle relaxants and an anti‑depressant. He referred him for physical therapy but the plaintiff told him this was extremely painful for him and hence this was deferred. Such were the views expressed by Dr Ishak in his report of 31 October 2001. There were similar observations in the report of 29 January 2002 albeit it was accompanied by an observation of some improvement in the plaintiff's condition. The position persisted much the same with gradual but slight improvement through the rest of 2002 but by Dr Ishak's review of the plaintiff of 31 January 2003 he had seen the plaintiff three times in the previous six weeks or so and he observed that the plaintiff was:
"… quite distressed by the pain with marked restriction of the movement of the cervical, thoracic and lumbar spine as well as the right shoulder. He was walking with an obvious difficulty and antalgic gait. I found him very tender over the cervical, thoracic and lumbar paravertebral muscles as well as the trapezii. [The plaintiff's] condition has not shown any improvement since our last report to you.
He continues to be managed for his major depressive disorder with Aropax 60mg tablets ie three tablets in the morning together with Endep 25‑50mg at night to help with the night's sleep. He also used Panadol when required. I believe the compliance with the anti‑depressant medication is not optimal." (My emphasis)
The plaintiff continued to report the same symptoms to Dr Ishak throughout 2003 and Dr Ishak recorded in his report of 11 September that year that the plaintiff had been subjected to further assessments and testing by Dr Geoffrey Gee and psychiatric assessment by Dr Ng at the request of the defendant's insurer. Clearly Dr Ishak thought that Dr Ng's recommendation should have been followed by the plaintiff but accepted his explanation that he was unable to do so in the event that payment was not forthcoming from the defendant's insurer. Dr Ishak expressed the opinion at that time that the plaintiff would benefit from a comprehensive supervised rehabilitation programme and an intensive support programme under the care of a psychiatrist and clinical psychologist.
Generally speaking Dr Ishak noted an undulating effect to the plaintiff's reporting with periods of partial improvement followed by periods of exacerbation causing him to conclude in January 2004 that there really had not been much change to the plaintiff's presentation. In giving evidence Dr Ishak has said that the plaintiff was reluctant to accept the fact that he had sustained a psychiatric or psychological injury and thought that the plaintiff had not come to accept that there was a psychological component to his presentation.
Dr Ishak testified that he had tried to explain the nature of the plaintiff's psychiatric injury to him:
"…we keep explaining that there are elements and factors involved other than purely the accident which are in the form of the effect of the mind on the body and depression and the like. [However] he doesn't accept that there is a psychological factor into his pain not being depressed." (T161)
Dr Ng is a consultant psychiatrist who saw the plaintiff on a number of occasions, the first being on 14 August 2002. Dr Ng was clearly concerned about the plaintiff's welfare. He thought the plaintiff was suffering from a major depressive disorder with prominent anxiety symptoms which rendered him completely unfit for work. He thought he required ongoing treatment by a psychiatrist and a psychologist. He thought that such treatment would take one or two years to bring his illness under control. He felt so concerned about the plaintiff's condition that he wrote to Dr Ishak urging him to refer the plaintiff to a psychiatrist who was in a position to treat him because Dr Ng was of the opinion that having been consulted for a medico‑legal opinion he could not embark upon a treatment regime for the plaintiff. He observed that the plaintiff continued to exhibit the symptoms of a major depressive illness on all of the occasions he saw him being four in all. Nevertheless there was significant difficulty in treating the plaintiff for his psychiatric disorder because of the plaintiff's beliefs. As Dr Ng wrote in his report of 20 January 2004:
"It also was clear to me that [the plaintiff] was resistant regarding a referral for psychiatric treatment because such treatment would acknowledge that there were psychiatric problems that he was suffering from, in conjunction with the pain he suffered.
Again he told me that if he were to acknowledge that he had psychiatric problems and went to see a psychiatrist for treatment, this may indicate to some that the pain he experienced was 'from his head'. This he felt would mean that he would not be believed."

These views were confirmed in testimony when Dr Ng gave evidence. Dr Ng testified:
"There was quite a deal of reluctance to accept, your Honour, that psychiatric problems could be existing in himself even after I had diagnosed him with a depressive disorder. I felt that there were several factors which might have been predisposing him to that position: firstly, there may well be family cultural factors such as some families don't believe there is such a thing as mental illness and some do; secondly, his personality style ‑ he's a fairly concrete individual. By that I mean he is not very psychologically minded, not being pejorative about it, and hence feeling sad or upset et cetera, it's not seemed to him as a psychiatric problem et cetera, [and, regarding his acceptance that a psychiatric condition could impact on his pain levels] I would suggest on two levels: (1) that he would have no understanding of that whatsoever; secondly, he would certainly not accept it because with his beliefs about mental illness he would see that a position as that he must be fabricating it. Having a mental illness means that you are making things up and that is obviously not the case, but that's his level of sophistication in judging that matter." (T172)
Dr Ng went on to explain that this made the plaintiff's treatment exceptionally difficult such that his prognosis would have to be regarded as being poor.
Nevertheless, whilst Dr Ng was guarded about the plaintiff's prognosis he would certainly not give up on him. He did not think the plaintiff's position hopeless. Rather he thought that the plaintiff's depressive illness with his accompanying symptoms of anxiety were so entrenched that the treatment path would be long and drawn out, perhaps requiring firstly an immediate change of drug as the Aropax has obviously not been working notwithstanding its administration in high therapeutic dosages. Dr Ng's opinion was that the plaintiff would require three types of treatment. Firstly, by a psychiatrist overseeing the administration of anti‑depressant medication. Secondly, two forms of psychotherapy would be required the first being a purely supportive form and the other being cognitive behavioural therapy. Supportive psychotherapy is that where the plaintiff is allowed to express his emotions and is encouraged to verbalise them and talk them out. Cognitive behavioural therapy seeks to change the plaintiff's view of himself to make him more receptive to treatment.
Finally, I should record that Dr Ng was cross‑examined closely about whether or not the plaintiff's abnormal illness behaviour evidenced malingering and how this fitted in with Dr Srna's opinion. Whilst it was put that there was some significance to the difference of opinion expressed by each of the psychiatrists Dr Ng and Dr Srna, to my mind the difference was one of nomenclature or even a semantic difference. The substance of their evidence was remarkably similar. Dr Ng said in relation to Dr Srna's opinion:
"As Dr Srna has stated abnormal illness behaviour in my mind can be subsumed under two arms. It can be caused unconsciously or subconsciously and consciously. If it occurs consciously it's malingering and done in order to get something. If it's done subconsciously then it occurs in the context of an anxiety disorder, a depressive disorder, et cetera, et cetera. The psychological processes feed it. In our experience most cases of abnormal illness behaviour are non‑malingering, in our experience. Secondly, this man has sufficient depressive and anxiety symptoms whether you wish to view it in Dr Srna's terms which are less severe because he calls it an adjustment disorder or the more severe variety where I call it a major depression, some same symptoms but different label because he agrees there were anxiety and depressive symptoms. The same with me, I said there were depressive anxiety symptoms, Sid says, Dr Srna says it's a less severe label. I say it's a more severe label. The fact that he has these symptoms in itself calls to question whether he is actually fabricating it purposely because he's got enough psychiatric things going on in his life which will then put a huge doubt in my mind to consider whether it is just simply malingering as Dr Srna himself has said, 'Look there are more significant factors here at work other than just simple malingering.' " (T193)
As I have already indicated, Mr Peter Watson, a neurosurgeon saw the plaintiff on a number of occasions the first being 8 November 2001. On that occasion the plaintiff presented in a wheelchair! This together with his complaints of pain made it difficult for Mr Watson to examine him neurologically. Notwithstanding these limitations on the nature and extent of his physical examination of the plaintiff Mr Watson was able to observe that there was no appearance of muscle wasting and normal movement in all muscle groups "but extensive give way weakness". He observed normal reflexes and sensation. He could find no pathological explanation for the plaintiff's symptomatology after reviewing all of the radiological evidence. The position was unchanged in January of 2004 when Mr Watson also had the benefit of an MRI examination. His report of 16 January 2004 is a masterpiece of understatement when he wrote:
"There has definitely been improvement in your client's condition since I saw him in November 2001 when it was very difficult even to examine him. However he still has extensive symptoms which I must confess to some extent surprise me at they're (sic) lack of improvement.
I must say having examined [the plaintiff] and looked at the MRI scans I see nothing on those studies that I don't feel are capable of improving. As stated above I am somewhat surprised at his lack of improvement despite the passage of time since November 2001. I would still be of the opinion that gradual improvement in [the plaintiff's] condition can occur.
With regard to [the plaintiff's] future treatment I noted the report written by Dr John Ker and I would agree with him that I believe that psychological treatment and support is required for [the plaintiff]. He appears to be clinically depressed and I believe that a psychological and psychiatric approach towards his pain management is very important. He is unlikely to improve in my opinion without attention to these factors. … I believe the mainstay of his physical management should be along the lines of exercises and strengthening appropriate to his spine such as swimming."
This opinion was repeated by Mr Watson in his testimony in court. In cross‑examination (T288) Mr Watson was asked whether or not he thought the plaintiff was deliberately exaggerating his symptoms and after remarking that there are a number of people who have presented to him in much the same fashion as the plaintiff he went on to say:
"I think that if I had to describe the situation I would say that [the plaintiff's] presentation of pain exceeded what I believed to be the extent of his soft tissue and ligamentous injuries alone; so in other words, his physical injuries.
That's why I made again, as I said, the comment regarding possible psychological or even psychiatric factors."
Mr Watson was firmly of the view that there was no physiological reason why the plaintiff should not engage in a full physical rehabilitation program and return to full time employment as a draftsman.
Dr John Ker is a consultant physician in rehabilitation medicine who also saw the plaintiff on a number of occasions. He too had examined all the radiological and magnetic resonance imaging evidence and had found no evidence to explain any of the plaintiff's symptoms let alone what he described as the plaintiff's florid pain behaviour. It was his opinion that the plaintiff had sustained a specific albeit mild incident of injury of the soft tissue type which had triggered the development of pain and as a result of psychological and psychiatric difficulties that pain became ongoing and associated with abnormal physical pain behaviours such as restricted mobility, complaints of pain and reports of pain on physical movement (T288 – 289).
Dr Ker was also asked about whether the plaintiff was malingering particularly in the light of a short segment of video film which showed the plaintiff at a couple of shopping centres walking normally and carrying some small items at one stage and at another stage a garden hose. Dr Ker did not think the plaintiff was malingering rather, he said, the plaintiff's abnormal illness behaviour was directly referable to psychiatric or psychological problems. This, he said was largely because the plaintiff's florid pain behaviour was evident right from the beginning when he was admitted to hospital following the accident and remained there for some eight days with there being no discernible pathology to explain his symptomatology. Hence, he said, the accident precipitated these abnormal illness behaviours that he exhibited rather than them being deliberately adopted for gain (whether that gain be monetary or secondary).
As to the future Dr Ker was cautiously optimistic. Both caution and optimism were conditioned by the success of the psychiatric and psychological treatment that the plaintiff undoubtedly requires. Provided those treatments were successful there was no physiological reason why the plaintiff should not return to work.
Mr Rattan Edibam is an orthopaedic surgeon who examined the plaintiff on three occasions at the request of the defendant's insurer. Both the plaintiff and his wife complained that Mr Edibam was rough with the plaintiff during the course of his examinations thereby exacerbating the plaintiff's pain. The plaintiff's wife was particularly histrionic when she gave evidence to this effect and on that issue I do not believe either of them but for different reasons. I think it highly unlikely that an experienced surgeon like Mr Edibam would submit a patient to a physically demanding examination, indeed even one which occasioned pain, in the uncaring and unsympathetic way portrayed by the plaintiff's wife, after having witnessed the plaintiff present in his surgery with exaggerated pain behaviours even to the extent of getting his wife to undress him! I think it more probable than not that the plaintiff's complaints of Mr Edibam are part and parcel of his abnormal illness behaviour and his psychiatric and psychological make‑up such that he was and is deeply suspicious and anxious of persons who may not believe that he is suffering genuine pain which, from his perspective, must be physical because he has a complete inability to comprehend that there might be some psychiatric or psychological origin for the way he feels. As for Mrs Abduramanoski, the position is more complicated. She has seen a great change in her husband which undoubtedly bewilders and unsettles her. The effect of love and loyalty cannot be underestimated. In my opinion she simply wants to believe that her husband's pain is entirely due to physical injury and not due to any psychiatric or psychological injury.
In any event I am firmly of the belief that Mr Edibam's physical examinations of the plaintiff were quite unremarkable and, having regard to the medical evidence as a whole, his opinion of the plaintiff is likewise quite unremarkable. He too is firmly of the opinion that the plaintiff exhibits grossly abnormal illness behaviour and from a physiological point of view was fit for full time employment from the time he first saw him in April 2002 until the present and for the foreseeable future. Undoubtedly though Mr Edibam thought the plaintiff needed the care and attention of a psychiatrist.
Dr Geoffrey Gee runs the Cambridge Pain Management clinic. He examined the plaintiff on a number of occasions. The plaintiff had been referred to him by Dr Ishak. Dr Gee undertook a thorough examination of the plaintiff and testified that he was unable to find things that would explain his extreme pain behaviours. Most importantly, however, Dr Gee formed the opinion that the plaintiff was reluctant to become involved in his own management, as he put it. From this and the balance of Dr Gee's evidence I understood Dr Gee to be saying that unless the plaintiff changed his attitude there was little prospect for rehabilitation. This became clearer when Dr Gee testified that whilst he ran his combined rehabilitation program over a three‑month period he would not embark on such program in the case of the plaintiff without him first having a complete change of attitude. In that regard he thought that if psychiatric and psychological intervention could clear up or bring under control the plaintiff's depression then his program had a very good prospect of restoring the plaintiff's physical fitness so that he could return to work.
The last medical witness called was Dr Zdenek Srna. When the plaintiff first saw Dr Srna on 28 May 2003 Dr Srna thought that the plaintiff did not present with any evidence of depression on that day. In his report of 26 June 2003 Dr Srna wrote:
"Due to embellishment of the symptoms and demonstrated unreliability of the claimant as a historian and the sharp contrast of his clinical presentation and the severity of given depressive and anxiety symptoms, I am unable to assess his current psychiatric impairment (which as opposed to disability, is not a permanent feature)."
Nevertheless Dr Srna diagnosed the plaintiff with pain disorder with physical and psychological symptoms, adjustment disorder with depression and anxiety, chronic in the context of abnormal illness behaviour possibly driven by a mixture of primary and a secondary psychological goals. His differential diagnosis included a factitious disorder and malingering.
In the same report Dr Srna expressed his opinion that there was ample evidence that following the accident the plaintiff developed abnormal illness behaviour and pain syndrome which was self‑perpetuated by inactivity coupled with which there was a history of secondary depressive and anxiety symptoms which under normal circumstances he thought would have well resolved within a relatively short period of time. Dr Srna noted that many of the specialists in physical medicine noted that the plaintiff's reported symptoms exceeded the expected consequences of the injury having regard to the underlying objective physical findings. He thought therefore that the injuries sustained in the motor vehicle accident in September 2001 were a triggering event giving rise to abnormal illness behaviour perpetuated over several years by secondary gains, and possibly by some unspecified primary psychological gain resulting from the sick role. These he thought could stem from some underlying psychological conflict the nature of which he was unable to establish.
During the course of his testimony Dr Srna was asked whether the plaintiff's abnormal illness behaviour and his tendency to embellish symptoms was conscious or unconscious. He answered:
"Well, really I would have to be guessing in this case. As to the degree of consciousness and unconsciousness it's a little bit of a artificial dividing of motives and psychological reasons for embellishing or embellishment. People suffering from pain disorders they often embellish symptoms in a sense that they perceive the symptoms to be much more intense and much more disabling than they actually are in the normal population. That often involves subconscious reasons for that and it would be for quite a number of reasons but in most cases there is always a conscious element especially in the medico‑legal setting we see this factor quite often. In this particular case I would say there was a mixed situation where there was a quite significant conscious and subconscious element to the exaggeration." (T374)
When the plaintiff next attended upon Dr Srna, his presentation was quite different. On that occasion Dr Srna said, (T379) "that he exhibited some significant psychiatric symptoms and objective phenomena." At that time Dr Srna thought the plaintiff suffering from a major depressive episode and drew the distinction between a major depressive illness or disorder and a major depressive episode, an episode being transitory like pneumonia compared with deep‑seated and chronic, like, for example, emphysema. He thought his diagnosis unchanged.
Dr Srna thought there were two issues relevant to the plaintiff's rehabilitation. As he wrote in his report of 22 March 2004:
"As in most cases, once the compensation process is finalised, psychiatric symptoms gradually abate through psychiatric treatment and that should involve face saving avenue to exit the sick role. The second factor is treatment of major depressive episode [the plaintiff] developed in the process, which will require use of antidepressant and psychotherapy. Pain management cognitive behavioural techniques would be also useful in his recovery."
Accordingly, as can be seen, whilst there is some difference between Dr Ng and Dr Srna as to the correct diagnosis, there is really no difference in the treatment they recommend.
There is then a quite remarkable coincidence of opinion between all of the medical practitioners of various disciplines firstly that the plaintiff has no pathological basis for his abnormal presentation to doctors, secondly that he has chronic depression (alternatively is going through a major depressive episode) which more probably than not accounts for his abnormal illness behaviour and thirdly, that his treatment must address his psychiatric and psychological problems first before any attempt is made to improve his level of physical fitness to enable him to return to the workforce full time.

The video surveillance film

A short video surveillance film was taken by Mr Glen Carpenter, a licensed investigator, who filmed the plaintiff at two shopping centres and a hardware store on 19 January 2004. The decision by the defendant's counsel to attempt to use this film shortly before the trial meant that the defendant had to obtain my leave to adduce it in evidence pursuant to the provisions of O 36 r 4. I gave the leave and made a series of directions in relation to the copying of the film and showing it to various of the medical practitioners who were due to be called to give evidence, all over the strong protestations of the plaintiff's counsel, and I directed that the trial proceed. The transcript properly shows the course of the argument in this regard. Having reviewed that transcript and the course of the trial I am quite satisfied that this course presented no prejudice to the plaintiff whatsoever. As submitted by the defendant's counsel the film was not earth‑shattering in its significance. It showed the plaintiff performing a couple of mundane tasks, getting in and out of a car a couple of times and carrying a garden hose from a hardware store. Whilst he appeared to walk relatively freely, and move without restriction, he could be seen to be quite slow and deliberate in his actions. The film made no great impact upon any of the medical practitioners, with the possible exception of Dr Srna who expressed the heavily qualified opinion that viewing the surveillance film was not a mental state examination but nevertheless said that the plaintiff's presentation on the video "… didn't gel with the history given by [the plaintiff] who told me that he has been suffering from his depressive state of mind for a number of months and obviously that video does not support that …". In my opinion the video surveillance film does little to assist in the determination of the issues present in this case.

Failure to mitigate

In its essence the defendant's plea that the plaintiff has failed to mitigate his loss comes down to the fact that in April and May of 2002 the plaintiff was told that he needed therapy by Dr Davies and Ms Sally Beardmore and it was not reasonable for him to refuse treatment. Whilst it was not put in this way there was additional evidence from Dr Ng and Dr Ishak that there had been an emphatic recommendation by each that the plaintiff undergo psychiatric treatment and the whole body of the medical evidence concurs in that assessment. The plaintiff consistently refused to acknowledge that he required both psychiatric and psychological treatment and therapy because he could not accept that his physical symptoms were somehow related to a psychiatric or psychological problem which he did not understand that he had. In my opinion the evidence suggests that the plaintiff's failure to understand the nature of his psychiatric and psychological conditions is firstly part and parcel of those conditions themselves and secondly, I am of the opinion that the evidence is strongly suggestive of there being cultural reasons why the plaintiff took so long to accept that there may be a psychiatric or psychological component to his physiological complaints. In any event, the defendant has failed to discharge the burden upon it of establishing on the balance of probabilities that the plaintiff's refusal to take the therapeutic treatment recommended was not attributable to a psychiatric or psychological injury he sustained in the motor vehicle accident for which the defendant is liable or that in all of the circumstances it was unreasonable for him to refuse to undertake such treatment. Accordingly, I do not find that the plaintiff has failed to mitigate his loss.

Assessment of damages

Non‑pecuniary loss

That part of an award of damages which used to be subsumed under the rubric of general damages is now defined by s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 to mean pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm. The amount of damages to be awarded for non‑pecuniary loss is to be a proportion, determined according to the severity of the non‑pecuniary loss, of the maximum amount that may be awarded, but the maximum amount may be awarded only in a most extreme case. Presently the maximum amount which may be awarded is $249,000. The amount which is sometimes called the threshold or the deductible amount referred to in the legislation as "Amount B" is $12,500 and the amount at which the threshold or deductible amount begins to decrease "Amount C" is $38,000. There is a gradual diminution in the threshold or deductible "Amount B" until an award is $50,500 or over in which case there is no deduction.
The assessment of the proportion which the plaintiff's case bears to a most extreme case is not without its difficulties. Clearly, all the objective medical evidence demonstrates that the physical aspects of the plaintiff's symptomatology lack any pathological explanation. They are, nevertheless, very real to him and at no time whilst the plaintiff was giving evidence did I ever doubt his veracity. His own work history, his determination to get back to work after a fairly significant accident in 1993 coupled with what must have been a painful disc protrusion in 1995 both demonstrate that given a previous opportunity of malingering, he did not take it. There is evidence in the papers of the work ethic of his family. His mother, father and brothers are all in full time employment and he was in full time employment at the time of this accident. And, I repeat, he had resumed employment after a more significant accident in 1993. In the circumstances, the evidence compels me to conclude that he was provoked into a frank psychiatric disorder by this accident. True it is that others may have taken it in their stride and made quick and uneventful recoveries, but it seems to me that this was the third life threatening incident in which the plaintiff found himself, and it was just too much for his psyche. I should state that by "life threatening" I mean events which threatened the plaintiff's way of life. The plaintiff was a man who valued himself and was valued by his family, who had overcome some adversity to retrain himself and obtain better prospects who saw all of this put in jeopardy by the defendant's negligence. The expert psychiatric opinion demonstrates that the plaintiff's abnormal illness behaviour is directly related to his depression and anxiety symptoms and an overwhelming fear that others would view his presentation with disbelief which in turn entrenched his illness behaviours, all of this occurring in my opinion without any conscious desire for monetary or secondary gain.
The impact upon the plaintiff has been significant. He has not worked since the accident and his employment was terminated about six months after it occurred. He has been obliged to support his family from a sickness allowance and his wife gets a family allowance. He is in debt. His family life has changed dramatically. His relationship with his wife has deteriorated and one only had to see the two of them give evidence to appreciate this. Whilst obviously there is still loyalty and love there is very little physical affection and each confirmed their sexual relationship was almost non‑existent. The plaintiff said that it was because of his pain that he had difficulty in getting and maintaining erections and whilst he did not use the word it was obvious that he was trying to explain that he had suffered a reduced libido all of which he found very embarrassing. He described having become more distant with his children especially the two younger children because he couldn't play with them or pick them up as he used to. His two older children think that he is more aggressive with them and they keep their distance from him at least so the plaintiff thinks. He said he was quick to anger and they are unable to understand. The plaintiff was a proud housekeeper enjoying his garden and helping his wife indoors. Now the older children do the gardening and indeed everything that he used to do before his accident. They are the ones who clean the back yard, attend to the pets and do household chores none of which they were required to do previously. He no longer drives much because he is concerned that the drugs he takes makes him drowsy. He describes other physical problems than those associated with the symptoms directly attributable to the injuries he thinks he sustained in the accident. He is on a regime of medication and, as far as he is concerned, life is very bleak.
The future for the plaintiff is uncertain. However, when he said in evidence that he accepts all of the experts' advice that there is a psychiatric and psychological explanation for the way he feels, which can be assisted with treatment, I am confident that he will take up the opportunity to get expert assistance, wean himself off his drugs, regain physical fitness and once again re‑enter the workforce. All of this however will be very hard work for the plaintiff and will involve him overcoming strongly entrenched and deep seated resistance to the idea that the mind controls the body and that he has to take control of his mind. All of this I think will take him two years or so, doing the best I can with the expert testimony.
These matters suggest to me that the proportion that the plaintiff's case bears to a most extreme case is 20 per cent and on my calculations this results in an award of $49,100 for non‑pecuniary loss.

Economic loss - past

In the financial year ended 30 June 2001 the plaintiff's taxable income was $34,741 after allowing for work‑related deductions of $419. His notice of assessment for that year disclosed tax of $6,802.30 and a Medicare levy of $521.11, a total of $7,322.41. On a gross of $35,160 leaving a net income of $27,836.59 this calculates at $535.32 per week, slightly less than the $537.00 submitted by the plaintiff's counsel. The evidence of the plaintiff's former employer Mr Connaughton indicated that had the plaintiff remained in his pre‑accident employment he could have expected an increase in his pay to somewhere between $37,000 and $37,500 in or about December 2002. I agree with the submission of counsel for the plaintiff that it is appropriate to half the difference between the two amounts and calculate the plaintiff's loss on an annual gross income of $37,250 after December 2002. This is $716.35 gross per week. Tax on $37,250 is $7,555 or $145.29 per week. This leaves a net of $571.06 per week from which must be deducted the Medicare levy of 1.5 per cent of the gross income, here $558.75 or $10.75 per week, leaving a net weekly income after deduction of tax and Medicare levy of $560.31, slightly more than plaintiff's counsel submission of $557.35.
The calculation of the plaintiff's loss until judgment is therefore:
26.09.2001 to 31.12.2002 = 66 weeks @ $535.32 per week = $35,331.12
01.01.2003 to 01.06.2004 = 74 weeks @ $560.31 per week = $41,462.94
A total past economic loss of $76,794.06 from which must be deducted the defendant's advance of $25,853.92 and paid sick leave of $524.00 leaving an award of $50,416.14.
The plaintiff also claimed loss of past superannuation benefits which during the two periods given above I calculate as follows:
26.09.2001 to 31.12.2002 = 66 weeks @ $676.15
per week gross x 9 per cent = $60.85 per week =                  $4,016.10
01.01.2003 to 01.06.2004 = 74 weeks @ $716.35
per week x 9 per cent = $64.47 per week =  $4,770.78
Total$8,786.88
Less 30 per cent in accordance with Jongen v CSR Ltd
[1992] A Tort Rep 61,706 (81-192) =  $6,150.82
The plaintiff further claimed interest on his total past loss at 3 per cent per annum and he is entitled to $56,566.96 x 3 per cent x 2.69 years = $4,564.95.

Loss of earning capacity

In my opinion the medical evidence demonstrates that given extensive psychiatric and psychological treatment and therapy followed by intensive physical rehabilitation the plaintiff should be able to return to full time employment in two years. Whilst some practitioners speak of a gradual return to full time employment, it is more probable that if the plaintiff applies himself assiduously to his mental and physical recovery and rehabilitation unpressured by a need to find suitable part time employment, he will be able to return to full time employment more quickly. The two year multiplier on the 6 per cent tables is 99 and the resultant sum (99 x $560.31) is $55,470.69.
The plaintiff is also entitled to an award of lost superannuation benefit for the same period likewise calculated in accordance with Jongen v CSR Ltd at $64.47 per week x 99 – 30 per cent = $4,467.77.

Special damages

The parties have agreed special damages at $7,043.03.

Future medical expenses

The evidence demonstrates that the plaintiff will need intensive psychiatric, psychological, pharmaceutical and physical therapy over the next two years and Dr Ng testified (T176) that the cost would be between $230 and $240 a consultation. Allowing $235 per consultation every two weeks for two years is $117.50 per week and using the same multiplier the award is $11,632.50. To this should be added firstly the cost of Dr Gee's course of $2,500 and the cost of medication at the 'safety net' threshold of $726.80 per annum which calculates at $13.98 per week. Using the same multiplier the amount is $1,384.02.

Gratuitous services

The evidence of the gratuitous services rendered to the plaintiff or on his behalf as the value of services he rendered to the household now undertaken by others, lacked the detail necessary to enable a proper calculation to be made, however I accept that all the heavier gardening work around the house is now undertaken by other family members. Allowing for two hours per week, at the agreed rate of $15 per hour for 140 weeks until judgment an award of $4,200 is indicated. There was no submission that there should be an award for future gratuitous services and I decline to make such an award in any event. It seems to me that as the plaintiff begins his various therapies he should recover sufficiently to re‑commence his former household duties.

Summary

The plaintiff is entitled to an award of damages made up as follows:
Non‑pecuniary loss  $49,100.00
Past economic loss  $50,416.14
Past lost superannuation  $6,150.82
Interest on past economic loss and
lost superannuation  $4,564.95
Loss of earning capacity  $55,470.69
Loss of future superannuation  $4,467.77
Agreed special damages  $7,043.03
Future psychiatric etc, treatment  $11,632.50
Future pharmaceutical expenses  $1,384.02
Gratuitous services  $4,200.00
Total award  $194,429.92