Al Aaraji v Hales - [2007] WADC 31

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: AL AARAJI -v- HALES & ORS [2007] WADC 31

CORAM: KEEN DCJ

HEARD: 5-12 FEBRUARY 2007

DELIVERED : 27 MARCH 2007

FILE NO/S: CIV 2044 of 2004

BETWEEN: ABD ALAMEER AL AARAJI
Plaintiff
AND
NATHAN DEREK HALES
First Defendant
PETER FERNANDO ESTAY
Second Defendant
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Third Defendant
PETER JOHN COMBS
Fourth Defendant

Catchwords:

Negligence - Multiple motor vehicle accidents - Assessment of damages

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943 s 3C

Result:

Plaintiff awarded $41,960.20

Representation:

Counsel:

Plaintiff:     Mr K S Pratt
First Defendant             :     Mr P T Olivier
Second Defendant         :     Mr P T Olivier
Third Defendant           :     Mr P T Olivier
Fourth Defendant          :     Mr P T Olivier

Solicitors:

Plaintiff:     Trewin Norman & Co
First Defendant             :     Talbot Olivier
Second Defendant         :     Talbot Olivier
Third Defendant           :     Talbot Olivier
Fourth Defendant          :     Talbot Olivier

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

Bowen v Tutte (1990) Aust Tort Rep 81–043
Graham v Baker (1961) 106 CLR 340
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Poseidon Ltd & Sellars v Adelaide Petroleum NL (1994) 179 CLR 332
Purkess v Crittenden (1965) 114 CLR 164
Setton v Eves [2006] WASCA 3
Thomas v O'Shea (1989) Aust Tort Rep 80–251
Watts v Rake (1960) 108 CLR 158

Case(s) also cited:

Watson v Fung & Ors [2005] WADC 168
Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485

KEEN DCJ: The plaintiff claims damages for personal injuries said to have been suffered in four separate motor vehicle accidents on 26 June 2002, 3 October 2002, 26 January 2003 and 19 May 2003. I will refer to those accidents respectively as the first, second, third and fourth accidents. Liability is not in dispute in respect of the first, third and fourth accidents. Liability is in dispute in respect of the second accident. In respect of the third accident this involved an unknown vehicle which did not stop after the accident and the defence initially put the plaintiff to proof on whether the plaintiff had given sufficient notice to the Insurance Commission of Western Australia pursuant to the Motor Vehicle (Third Party Insurance) Act 1943. However, after evidence, the defence conceded that this was no longer a live issue.

Background

The plaintiff is 50 years of age. He was born in Iraq where he was a laboratory technician. He came to Australia in 1999 as a refugee by way of Iran, Malaysia and Indonesia. He left behind him a wife and children in Iraq.
His wife and family arrived in Australia sometime after 2000 and were initially placed in an immigration detention centre at Woomera in South Australia. The plaintiff was in Perth.
It became immediately apparent during the course of the trial that the plaintiff has some difficulty with the English language. I will deal more with this later. However, the plaintiff gave his evidence without the benefit of an interpreter. Nevertheless, despite these difficulties the plaintiff managed to give his evidence. He had carried out studies in Australia and passed certain exam details of which I will give later. Whilst he had these difficulties and despite his protestations from time to time that he had difficulty understanding, with careful and slow questioning it seemed to me that he understood the questions and I allowed the matter to continue without an interpreter. I commented to the plaintiff's counsel that I was mindful of the difficulties and if I felt that an interpreter was necessary to avoid prejudice then that course would be followed. It seemed to me from the plaintiff's evidence that that point was never reached. Nevertheless, in dealing with the plaintiff's claim I have in mind his difficulties with the English language and have made allowances accordingly.
I will say more of the plaintiff's background later in these reasons as they are relevant to the claims made by him and the difficulties that he encounters.

The claims

As I have noted there were four accidents.

The first accident

The first accident occurred as the plaintiff was driving his motor vehicle on William Street approaching the intersection of William and Bulwer Streets, Highgate. A motor vehicle driven by the first defendant collided with the rear of the plaintiff's motor vehicle.
The plaintiff said that he was driving his car approaching the traffic lights. He saw the lights change and he slowed his speed. After that he stopped at the traffic lights. He said that he was struck from behind "very strong". He said that the damage to his Toyota vehicle was $2,000 to $2,200.
In cross‑examination, when asked how fast the other car that struck him was going, he said maybe more than 100 kilometres per hour. He said his vehicle was struck in the back in the bumper and what he described as the box, later defined, as the boot. He said that the boot was pushed inside. Later in cross‑examination he acknowledged that he did not see the other vehicle before the collision, but that "when he crashed the sound, very high sound behind my car … .".
Mr Hales, the first defendant and driver of the vehicle in the first accident gave evidence that he was travelling behind the plaintiff's vehicle approaching the intersection at the lights, the lights had turned red and as he braked his car went into a skid. He estimated that he had been travelling at around 40 to 50 kilometres an hour and was about 12 to 15 metres behind the plaintiff's vehicle. He said that the road was slick that morning as there had been a shower. He said he slid a good 10 metres or so and just as his vehicle was coming to a stop he made contact with the rear right-hand side of the plaintiff's car with the front right-hand side of his vehicle. He described the impact as minor.
Mr Hales described the damage to his vehicle as being to the right hand of the front fender and the headlight on that side. As to the damage to the plaintiff's vehicle he said there was a scratch on the right‑hand side of the boot about five centimetres or so long, and the right‑hand side of the rear bumper appeared to be pushed out of aliment by about 15 to 20 millimetres. He could find no other marks other than those two marks on his vehicle. Under cross‑examination he said he was conscious of trying to observe how much damage had occurred to the plaintiff's vehicle because he was aware of the fact that he had been in an accident and it was of concern to him.
Further, under cross‑examination the first defendant confirmed that he had not been travelling as fast as 60 kilometres per hour as he was travelling at the pace of the traffic around him. He did not recall seeing a dent in the boot of the plaintiff's vehicle.
Photographs of the first defendant's vehicle (exhibit 13) were tendered, which showed damage to the right-hand front fender, being a dent adjacent to the headlight. The evidence was that the headlight had been repaired. The evidence from the first defendant was that the only damage occasioned to his vehicle in this accident was that shown in the photograph and circled by him in red.
There is no dispute that a collision occurred; what is in dispute is the force of that impact. It is clear that the plaintiff, in suggesting that the first defendant's vehicle was travelling at about 100 kilometres per hour, was exaggerating. This form of exaggeration became a feature of the plaintiff's evidence and about which I will say more later. It is exaggeration, in relation to this accident, which appears to be utilised by the plaintiff as a means of expressing his view of the severity of the accident. However, the damage to the vehicles belies the suggestion of a collision at this speed. The plaintiff said that he did not see the defendant's vehicle before the accident and accordingly no weight can be placed upon his assessment of the speed of the first defendant's vehicle as he expressed it in his evidence.
Mr Hales gave his evidence in a straight forward manner and it had the ring of truth as to the speed he was travelling when he applied his brakes, the fact that he skidded and had almost come to a stop by the time he struck the plaintiff's vehicle. According to him there was little damage to his vehicle and he observed little damage to the plaintiff's vehicle. That observation was not contradicted by any independent evidence of more extensive damage to the plaintiff's vehicle by way of repair quotes or the like. In addition the evidence was that after the accident the plaintiff drove his car away from the scene.
Having regard to the description of this accident given by the first defendant and the extent of the damage, I find that the collision was relatively minor as described by the first defendant. I am not able to make any further finding as to the damage occasioned to the plaintiff's vehicle.

The second accident

The second accident occurred when the plaintiff was driving his Toyota motor vehicle in Irvine Drive, Malaga. A truck being driven by the second defendant had entered Irvine Drive from Victoria Road. The plaintiff in his vehicle also entered Irvine Drive from Victoria Road behind the second defendant's vehicle. As the second defendant was turning left into the premises of Armax Billiards, the plaintiff's vehicle struck the rear left-hand side of the truck including the rear left-hand tyre.
By consent a diagram of the scene was put into evidence (exhibit 15). This shows that the distance from Victoria Road to approximately the centre of the entrance to Armax Billiards is 82.3 metres. The road is 9.9 metres wide. The width of the Armax Billiard's driveway at the roadside is 9.2 metres wide. It was common ground that there is no dividing line in the centre of Irvine Drive and this can be seen from the bundle of photographs exhibited as exhibit 7.
Before dealing with the evidence of the witnesses concerning this accident, I note that the statement of claim pleads that the second accident was caused by the negligent driving of the second defendant particulars of which were:
(a)Failing to keep any or any proper look out.
(b)Failing to apply the brakes of his truck sufficiently or at all.
(c)Failing to stop, steer or swerve his truck so as to avoid colliding with the plaintiff's motor vehicle.
(d)Driving at a speed that was excessive in the circumstances.
(f)Failing to give‑way to the plaintiff's motor vehicle.
Those particulars of negligence were given in the context of the description of the accident which was pleaded as:
"On 3 October 2002 the plaintiff was driving his motor vehicle in the left-hand lane on Irvine Drive, Malaga, when a truck that was being driven by the second defendant in the same direction on Irvine Drive and to the right of the plaintiff's motor vehicle, suddenly veered to the left and collided into the plaintiff's motor vehicle."
The second defendant, by his defence, denied that the vehicle he was driving suddenly veered to the left and collided with the plaintiff's motor vehicle and alleged that the matters complained of by the plaintiff in par 3 of the statement of claim were caused by or alternatively contributed to, by the negligence of the plaintiff. He then set out particulars of the plaintiff's negligence as follows:
(a)Driving at a speed which in the circumstances was excessive.
(b)Colliding into the rear of the vehicle being driven by the second defendant.
(c)Failing to keep any or a proper look out.
(d)Failing to brake, steer or otherwise manoeuvre the vehicle he was driving so as to avoid colliding into the vehicle driven by the second defendant.
(e)Failing to heed the left-hand trafficator on the vehicle being driven by the second defendant, which at all material times was indicating the second defendant's intention to make a left-hand turn.
(f)Travelling too close to the vehicle in front of him.
(g)Attempting to pass the vehicle being driven by the second defendant on its left-hand side when it was unsafe to do so.
The plaintiff gave evidence that he entered Irvine Drive behind the truck driven by the second defendant. He said that he was some four metres behind the truck. The thrust of the plaintiff's evidence was that the truck moved over to the right of the road and then suddenly turned to the left. He said that the truck was maybe 75 per cent into RMax (sic) when the truck crashed his car with the wheel or tyre.
In answer to questions about which indicators were operating on the truck he said that he saw a right‑hand indicator on the rear of the truck but did not see one on the left. He said that after it had put on its right‑hand indicator the truck moved to the right on the wrong side of the road (by reference to an imaginary line in the centre of the road). The plaintiff's evidence seemed to suggest that he thought that the truck was turning into premises on the right‑hand side of the road.
The plaintiff said that he was travelling at about 20 kilometres per hour.
Under cross‑examination the plaintiff suggested that the second defendant had put on his left-hand indicator after the accident.
Mr Al Husseini gave evidence that he had driven into Irvine Drive, but had stopped in the entrance to premises on the opposite side of the road, as his vehicle was overheating. He got out of his car and was waiting for a mechanic to arrive. He was standing on the grass verge. He said he saw the truck turn from Victoria Road and put its right-hand indicator on. He said that the truck then turned to the right to go over the road and then turned left straight away. He thought that the truck came to within three or four metres of the kerb on its right-hand side of the road. He said he saw it clearly - the truck going to the right and then turning left and the car behind it crashing into the tyre.
Under cross‑examination Mr Al Husseini denied that the left-hand indicator was operating on the truck and said that he only saw the right‑hand indicator. He confirmed that he saw the left-hand indicator on the truck after the collision. He also confirmed that the front of the truck was in the driveway to the billiard premises.
There was a good deal of cross‑examination in relation to this witness and examination of other witnesses which I will deal with shortly particularly as to whether or not this witness was in fact in the vicinity and saw the accident.
Mr Estay, the second defendant, was called and said that the truck that he was driving was some 12 metres long with the rear chassis being nine metres long and it being 2.2 or 2.6 metres wide. He was turning into the driveway of the billiard's firm. He was familiar with the area and had been making deliveries there for three years, probably once or twice a week, and also made other deliveries further down the road about four times a month.
He said that he turned into Irvine Drive and as soon as he did so, he put on his left-hand indicator to turn into the driveway of Armax Billiards. He said that he was travelling about five kilometres per hour down the hill in second gear. He said:
"I opened myself a little bit to the right – not much – so I can turn into the gate which is the – that is the normal proceeding for a long truck. I turned into it and when I was making the turn, I heard this – I checked on both of my rear vision mirrors to see if everything is clear so I could do the turn. I couldn't see any vehicle coming through the back so I proceeded to turn into the driveway. Halfway into the driveway I felt a slight bump on the left-hand side. I again looked into the left-hand mirrors and I saw this car against the truck."
After the accident the second defendant alighted from the vehicle and looked for damage and observed a cut in the left-hand rear tyre and a scratch to the wheel rim. That damage was as shown in photographs 3 and 4 in exhibit 7. He said he inspected the damage to the plaintiff's vehicle. There was some damage to the panel on the right-hand side and the bumper was on the floor. He described the impact as having being very light and the bumper fell off because it was attached by clips.
When he got out of the car, he said that the indicator on the left-hand side was still on. He had a discussion with the plaintiff who said "you didn't put your left indicator on." The second defendant replied "yes I did you can see the indicator is still on there and hasn't actually been switched off yet."
When questioned in relation to the imaginary line down the centre of the road the second defendant said that his front wheels would have been on top of that line and no further to the right. Under cross‑examination he said that there was no need to cross that imaginary line because the road was very wide.
Mr Paul Rattew was at the time driving a car in the opposite direction in Irvine Drive heading towards Victoria Street. He worked in the vicinity and was familiar with the road. He is a mechanic and he was testing a vehicle as it had a noise in the back.
Mr Rattew said he saw the truck and it was indicating as it was approaching Armax. It was indicating left as if it was going to turn into Armax. The truck was travelling towards him from Victoria Street indicating left and as it was approaching the turning he saw:
"A little white Japanese looking car come racing around the corner from Victoria. It turned left into Irvine. So the truck's coming down and the car had turned left into Irvine."
Mr Rattew said that the truck was indicating left and going very slowly and he first observed it approximately halfway between Victoria Street and the Armax driveway. It continued down Irvine Drive, swung out a little bit and started to turn into Armax. It pulled towards the centre of the road. It had its left-hand indicator on the whole time. He did not see a right indicator. As to the imaginary white line in the road he said it was probably a metre or so off being on the white line. In relation to that, the exchange between counsel and Mr Rattew was:
"To which side, the left or the right?---To the left.
You are talking about the truck driver?---Yes. To the left.
Did the truck cross the white … ?---No.
That imaginary white line?---No."
When questioned about the speed of the vehicles he said the truck was going slow and the car fast. He said:
"I thought – my instant reaction was, 'he can't be doing it,' because I could see that the little white car was going to try and go on the inside of the truck that was turning left. The only reason I knew it was turning left was because obviously he had his indicator on."
Under cross‑examination Mr Rattew was unshaken as to which indicator was working, that is to say, the left-hand indicator and that he did not see the right-hand indicator. He said:
"If he had put his right-hand indicator on, I wouldn't have thought anything of the white car that was hurtling up the inside of him. I would have just thought, 'he is doing it' – because if a truck is indicating right, it is the normal thing, to go past it on the left? but I was thinking to myself, 'what the hell is he doing?' "
A further exchange occurred in the following terms:
"But if it was in the centre of its lane then it would be absolute folly for anyone to try and pass it on the inside line?---Absolutely, that is exactly what I thought.
When did you exactly have that thought first?---When he started going up the inside of the truck as the truck was starting to turn.
As it was starting to turn?---Yes.
Did the car change its position on the road?---No. It was hugging the kerb.
It was only at the beginning of a turn that you thought the car was going to overtake on the inside?---No I thought that from the minute he got around the corner because he was going so fast and wasn't slowing down and it was, if he was, like, trying to race him to get – before he turned, you know, I thought, 'you are never going to make it, what are you doing.' "

There was extensive cross‑examination of Mr Al Husseini as to whether or not he was in fact in the position he claimed to be so as to observe the accident. It was also suggested to the plaintiff that after the accident the plaintiff disappeared for five minutes and came back with some other persons, perhaps including Mr Al Husseini. Mr Estay was also questioned and cross‑examined as to whether he saw Mr Al Husseini and he said that he did not. Mr Rattew was also subjected to similar examination and he did not recall seeing Mr Husseini either.
Mr Rattew could not be confident whether Mr Al Husseini was in fact where he said he was or not. After the period of time that has expired, it is understandable that there may be some confusion as to whether a person was or was not present at the scene. The second defendant was concentrating more on making his turn and might well not have seen other people in the vicinity. Similarly Mr Rattew was obviously attracted to what was occurring on the road in front of him and again might not be likely to have seen any other person in the area. In the end if Mr Al Husseini was there, I am still left with having to decide whether to accept his evidence as supporting the plaintiff that the right‑hand and not the left-hand indicator was on, or the evidence of the second defendant supported by Mr Rattew that the right-hand indicator was not on and the truck was only displaying the left-hand indicator. I am also left to decide the position of the second defendant's vehicle, that is to say, whether or not it crossed the imaginary centre line of the road.
I prefer the evidence of the second defendant and Mr Rattew. The second defendant was thoroughly familiar with the area and it is inexplicable as to why he should put his right-hand indicator on. There was nowhere to turn in that immediate vicinity. He was attending the premises of Armax with which he was familiar. It is clear that he did move some way to the right before turning left to enter the premises of Armax and counsel for the plaintiff conceded, rightly my view, that that would be, to some extent, the normal manoeuvre of a truck of this size intending to turn left into the driveway.
Mr Rattew's observations are quite clear, although under cross‑examination it was suggested to him that he would not have had such a clear view of events as he suggested. I accept his evidence in its entirety. He was entirely independent and his version of what occurred fits almost precisely with that of the second defendant and is, that there was nothing about the truck's progress down the road and the turn that was out of the ordinary.
The plaintiff's statement of claim makes no allegation of the second defendant giving a misleading indication by putting on the right-hand indicator and failing to put on the left-hand indicator. The allegation is that it suddenly veered to the left and collided with the plaintiff's motor vehicle. The defence, on the other hand, pleads excessive speed which is consistent with the evidence of Mr Rattew, that the plaintiff failed to heed the left-hand trafficator on the vehicle which again is consistent with the evidence of Mr Rattew and the second defendant and that the plaintiff attempted to pass the vehicle on the left-hand side when it was unsafe to do so, again consistent with the evidence of Mr Rattew whose mental processes in relation to the plaintiff can be summed up by his evidence "what the hell is he doing".
It is not in dispute that there was a collision between the two vehicles and I find as a fact that the plaintiff's vehicle collided with the rear left‑hand wheel of the truck. On the critical question of how far the truck had traversed across the road I find that it had not crossed to the wrong side of the road. On the other critical question as to what indicator it had been displaying prior to the accident, I find that it had been displaying the left-hand indicator and had been doing so for at least half the distance along Irvine Drive between Victoria Street and the Armax entry. There seems to be no dispute that the indicator was on after the accident and I am satisfied on the evidence that the second defendant did indicate left. He knew where he was going and he had no reason to indicate right. In the circumstances I reject the evidence of the plaintiff and Mr Al Husseini that the right-hand indicator was on and, my finding is that the accident occurred because the plaintiff was travelling too fast as he came down Irvine Drive and attempted to overtake the truck on its left-hand side despite its indicator and despite the sign on the rear of the truck counselling against passing an overtaking vehicle. Alternatively I find that the plaintiff merely failed to stop in time and the accident was entirely the plaintiff's fault. On the evidence presented to me I can find no fault on the part of the truck driver.

The third accident

On 26 January 2003 the plaintiff was driving his motor vehicle on Great Eastern Highway. He had been with his son to see the Australia Day fireworks. He had stopped at a red traffic light when his vehicle was struck in the rear by another vehicle. That vehicle then reversed, turned into the lane on the right and drove away from the scene. The plaintiff described the other vehicle as being a red sports car travelling at very high speed. He said that the damage to his vehicle was between $1,500 and $1,600.
Mr Hussein Azalihi was a passenger in his father's motor vehicle which was stationary in a lane to the right of the plaintiff's motor vehicle. He heard a loud screech of brakes and saw a red sports car with its brakes applied, collide with the plaintiff's vehicle. He confirmed that the sports car reversed from the plaintiff's vehicle and accelerated away. The plaintiff drove away from the traffic lights and stopped. Mr Azalihi's father followed and stopped to render assistance. Mr Hussein Azalihi said there was damage to the back of the plaintiff's vehicle but he did not take a close look. That damage was to the bumper and the boot.
Mr Azalihi's father, Abdullah Azalihi, also gave evidence, with the assistance of an interpreter. He confirmed that he was stopped at the traffic lights with the plaintiff's vehicle on his left side and he heard a screech of tyres and a bump. He could smell the tyres. He said there was quite a collision. He confirmed that he stopped to give assistance "because we saw that they were really in bad shape". He did not give much attention to what happened to the car and was concerned with the condition of the occupants.
As I have noted, the fact of this accident is acknowledged by the defence even through the driver could not be traced. It is clear there was a collision and from all accounts the car that struck the plaintiff's vehicle had been travelling at some speed and had skidded before the collision. However, the force of the collision is not clear. There was no evidence of the amount of damage to the plaintiff's vehicle other than the oral statement by the plaintiff that the repairs cost $1,500 to $1,600. There were no quotations. There was no evidence given as to how far the vehicle was pushed forward (if at all). The plaintiff was able to drive away from the traffic lights and stop shortly thereafter. The evidence of Mr Hussein Azalihi is that there was damage to the boot and bumper, however, a police report completed by Mr Azalihi on behalf of the plaintiff (exhibit 2) merely refers to damage of the rear bumper and not the boot.
I am unable to make any clear finding in relation to the force of the impact from the evidence led, but it seems to me that the description of the damage and the fact that the other vehicle was able to drive away so quickly, would suggest that the force was not great.

The fourth accident

This accident occurred on 19 May 2003 when the plaintiff was again stationary in his motor vehicle. The plaintiff was in East Parade, East Perth, and his motor vehicle was struck in the rear by a motor vehicle driven by the fourth defendant. Again the plaintiff, when asked how fast this other motor vehicle was going, said:
"I don’t know. I told you 70, 100. But I don’t know – fast, because I have evidence was fast??? I have evidence, but if he legal drive the car at legal speed, maybe 50 kilometres per hour or 60 can make or brake because his car, this new, a new car."
Despite this statement it was clear in re‑examination that the plaintiff did not see the other vehicle prior to the accident.
The plaintiff said that the damage to his motor vehicle was to the rear bumper on the left side. He said that he obtained two quotes, one for approximately $1,300 and the other $1,100 or $1,200. He said that there was more damage to his car than to the front of the other vehicle.
Mr Combs, the fourth defendant, said that he was proceeding down East Parade when he realised that a white car had suddenly stopped in front of him. He had noticed that a bus in front of the white car had stopped and the white car stopped suddenly. He said that he did not see it in time and had to veer to the left to try to avoid the collision. He described the damage to his vehicle as a dent just above the right-hand front wheel. He said that the impact to the plaintiff's vehicle was insignificant. He thought that it had moved the bumper on the vehicle between half and one centimetre. He said that he checked because he wanted to know exactly what the damage was and what it was worth. He described his speed at the point of impact as being somewhere between 8 to 15 kilometres per hour, and he was braking all the time.
Again, it is difficult to assess the degree of the impact and the amount of damage to the plaintiff's vehicle, as no documentary evidence of the scope of the damage to the plaintiff's vehicle was received in evidence. However, after the accident the plaintiff was able to drive his vehicle. There was no suggestion of the plaintiff's vehicle being propelled into the bus that was stationary in front of him. In all the circumstances I find that this was not a severe collision by any means and I accept the evidence of Mr Combs that it was light.

The plaintiff's injuries

In his statement of claim the plaintiff alleges that as a result of the accidents he has suffered injuries and provided particulars as follows:
"Particulars of plaintiff's injuries and symptoms:
(a)     Headaches;
(b)Pain, soft tissue and ligamentous injuries and restricted mobility to the neck;
(c)Pain, soft tissue and ligamentous injuries and restricted mobility to the shoulders;
(d)Pain, soft tissue and ligamentous injuries and restricted mobility to the arms;
(e)Pain, soft tissue and ligamentous injuries and restricted mobility to the hands;
(f)     Numbness and altered sensation to the hands;
(g)Pain, soft tissue and ligamentous injuries and restricted mobility to the back;
(h)Pain, soft tissue and ligamentous injuries and restricted mobility to the legs;
(i)     Numbness and altered sensation to the legs;
(j)     Numbness and altered sensation to the feet;
(k)     Depression;
(l)     Anxiety;
(m)    Interrupted sleep."
The plaintiff gave evidence that after the first accident he felt a little bit dizzy, and had a pain in the neck and the lower back. He also described pain continuing to the right hand and both legs but worse in the right. He said the pain got worse in the evening and the next morning he went to Royal Perth Hospital. He had a headache.
After visiting Royal Perth Hospital he went to see his general practitioner Dr Beshay and was sent for physiotherapy, CT scan and x‑rays.
He said that by the time he had his second accident he was still suffering severe headaches and pain in the neck and the left and right shoulders and his hands. He also had pain in the lower back which continued to his legs but worse on the right.
In relation to the second injury the plaintiff said (TP 40);
"I not injury in this but the same injury I have from first accident, this little bit increase my pain. But I scared … ."
When asked if it made him a bit worse he replied yes but not more than one out of ten.
Between the second and third accidents, when asked how he was feeling he said he was worse because he had severe pain in his neck and leg, severe headache, pain in his shoulder and both hands. When asked when it started to get worse he said:
"this worse from accident 2, this – I told you this little bit, this worse but continues worse, worse, worse until accident 3."
The plaintiff went on to say, in relation to these three accidents, that the second accident increased his problems by one tenth and the third also by one tenth.
In relation to the fourth accident he said that he was dizzy. He said that when he left to drive towards the city, after about five minutes, he felt more dizzy, had a severe headache and severe pain in the low back, neck and legs. He went to Royal Perth Hospital. He attributed 30 per cent of his problems to this accident.
Accordingly, to summarise the plaintiff's assessment of the degree of disability arising from each accident it was 50 per cent to the first, 10 per cent to the second, 10 per cent to the third and 30 per cent to the fourth.
The plaintiff described having poor concentration and having physical pain which from 2006 to the present time had got worse. He also said that he had depression. He was on a number of medications; Tramal, Mobic, Eforex for his depression and Panadol and Panamax.
The plaintiff said that before the first accident he was not happy all of the time because he had to get his family to Australia, and when they came he was happy. He was looking forward to getting a job, continuing his studies and since the accident he has had depression and pain and cannot look for a job. He said that he had severe headaches all the time and could not do anything around the house; cooking, cleaning his room, ironing his clothes. He said he cannot visit friends, he cannot walk and he cannot sit for a long time. He said that he spent his days sometimes reading a book. He said that he was very tired and anxious and argued with his wife. He said he had trouble sleeping and had poor concentration.

The medical evidence

Dr Beshay is the plaintiff's general medical practitioner. She produced a number of reports and referrals and said that since the last of those on 28 April 2004 the plaintiff had continued to see her. His condition had not changed. She said that his somatic symptoms, his neck pains, his headaches, his aches and pains are probably still the same but his depression looks like it is the severest symptom now and was getting worse. She said he was in pain and uncomfortable all the time, he could not sleep, he had headaches all the time, he had problems with his wife and was not coping. He could not do his usual activities, could not drive his car, does not have concentration and was unable to finish his English course at TAFE. He postponed his biomedical course at Curtin University. She said "so it is all – lots of them have happened in his life and it is all caused by the recurrence of motor vehicle accident". She said that in the last year and a half he has been going down quickly and he is always depressed.
Under cross‑examination Dr Beshay said that the plaintiff presented at the practice on 25 August 2000 having been discharged from the Port Hedland Refugee Camp. She confirmed that he had been treated by Dr Allet at Royal Perth Hospital following a diagnosis of chronic depression and that he had re‑referred himself to Dr Allet prior to the first accident after relapsing. She also confirmed that the plaintiff had confided in her his concerns about the psychiatric and emotional health of his children which caused him worry and that added to his depression. He had problems with his wife and children being in the Woomera Detention Centre. She confirmed that some times depression and these psychiatric problems may never go away even if the cause of the problem is removed. She confirmed that the children still have psychiatric problems from being in the detention centre. That continues to be a consistent source of worry and depression for the plaintiff.
In dealing with the physical aspects of the plaintiff's complaints, Dr Beshay confirmed that she would not expect the plaintiff to suffer bad pain in his low back in a low impact accident if he was wearing a seat beat and struck from the rear. Nevertheless, she confirmed that the plaintiff complains of back pain and pain when he walks. Under cross‑examination, in relation to the psychological symptoms of the plaintiff, Dr Beshay was asked whether things were probably getting worse after the accident. She confirmed that from accident number one they continued to get worse. She said that he had low moods and he was not happy. He had problems with his wife and things were building up all the time. When asked how she related those to the accident she said:
"Because after the accidents his aches and pains were there all the time. So he just takes the pain killers. It eases the pain a bit and then it is back again. He is not sleeping. He is tired all the time. So it did affect his depression. It made his depression worse."
Dr Fredrick Ng a consultant psychiatrist was called and produced a number of reports prepared by him. He saw the plaintiff on three occasions. He said:
"… when I saw him the first time and confirmed by the second time, there were two major issues I felt present in this man from a psychiatric perspective. On the first hand, he had depressive symptomotology, on the second hand he had anxiety type symptomotology. The way I conceptualise this after my first assessment of this man is that the depressive symptomotology may have been present prior to the accident, but it had returned as a result of it. Given what I read in Dr Allet's notes, I was then led to understand that the depressive disorder was actually relapsing at the time of the first motor vehicle accident and, hence, the relapse is not caused by the first motor vehicle accident. However, given that he reported to me that the depressive symptoms were worse after the accident, I felt it reasonable to suggest that it was exacerbated by the motor vehicle accident and that the relapse was not caused by the motor vehicle accident but perhaps by some difficulties he had had with whatever authorities he alluded to but chose not to elaborate to me. I think he was a very difficult historian … ."
When asked what impact the migration problems had upon his psychiatric symptoms as a contributing factor, the doctor said:
"… I think, given what I have read, it is more likely than not that some of these pre‑existing factors definitely were and are perpetuating his psychiatric condition, undoubtedly so, in fact may have pre‑disposed him to the onset or the exacerbation of his psychiatric conditions. As far as percentages go, your Honour, it is exceedingly difficult. Some of those factors which were pre‑existing continue and new complications have apparently arisen in the context of martial difficulties which may have arisen etc. I am not able to, your Honour, provide a proportion as to what may have been pre‑existing and what came from the accident."
Having described the plaintiff as "circumstantial" and being asked what was meant by that Dr Ng said:
"What I mean, your honour, is that at times he gets so frazzled and anxious that he gets muddled. He will answer off the point and at times you ask him a point and he will go off on a tangent on another point. At other times he flicks into lucidity and is able to answer. I mean for him to get a PhD he must have had some degree of pre‑existing lucidity and hence – I mean this chap has got problems. He has got a psychological problem undoubtedly."
When asked what the plaintiff's position might have been but for the accidents the doctor said:
"… given that there were no accidents whatsoever, given that he did not develop any physical symptoms that he reported he had, I would have expected if there were ongoing bureaucratic problems, he would have had episodic depression which would have improved and relapsed depending on the extent to which the bureaucratic difficulties would have occurred. However, I acknowledge in my opinion that the accidents themselves, the trauma of the accidents and physical symptoms he reported as a result of the accidents, have created another layer of stress over and above what was already there, hence if due to the bureaucratic and whatever pre‑existing difficulties his depression were to fluctuant, then there is this other layer on top of that which would exacerbate the fluctuations accordingly. Secondly, if the accidents did not occur he would not have developed post traumatic stress disorder."

I pause to note that whilst making those comments the doctor did not go on to say what the actual affect has been of this additional layer of stress. I also note that post traumatic stress disorder (PTSD) is not a matter that has been pleaded in this case. Under cross‑examination about PTSD the doctor confirmed that it was an anxiety disorder and it was natural for a father to suffer from anxiety over what the future might hold for his child.
When cross‑examined as to the effect that the removal of stressors might have on a person's psychiatric condition the doctor confirmed that the condition may still be difficult to treat despite the removal of those stressors and a person would still be liable to suffer relapses. The cross‑examination continued:
"So that even if these accidents hadn't occurred, and I think you may have told us this, there is every prospect that this man would have continued to suffer psychiatric problem for years to come? … Your Honour, that is partly true in that it depends how long he was depressed for, if the accidents didn't occur. So if you had one episode of major depressive disorder that lasts one to two years, which was mild to moderate in intensity, and the stressors disappeared over that period of time more likely than not we would expect remission, and more likely than not we would expect sustained remission, although there are cases of relapse without provocation.
If there had been a removal of stressors and then a further relapse wouldn't that indicate it was more likely that the patient was a candidate for future relapses? … Absolutely."
Dr Allet is a consultant psychiatrist practising at Royal Perth Hospital. He first saw the plaintiff on 9 July 2001 and noted:
"History consistent with depression of four months standing. Sub‑clinical features prior to this. Some suicidal ideas. Never intent. Never planning. Holds hope still for family to come to Australia but unclear as to processes. Stressor. Long standing alienation Iraq/Iran, family separation, migration, language, isolation in Australia, unemployment."
Dr Allet said that the stressors referred to are not placed in any particular order.
On 11 February 2002 Dr Allet saw the plaintiff again and he was told that the plaintiff's wife and children had reunited with him. Apparently he had stopped taking anti‑depressants a month before and that he was well without psychological shift meaning disturbance of sleep, appetite and psychological function. He still had occasional headaches. The doctor said that episodically his mood was still low and he was still experiencing poor concentration and his (the doctor's) impression was that there was a possibility that he had residual symptoms of depression. He said that the plaintiff was not keen to return to medication.
The doctor was asked whether or not the plaintiff has a recognised psychiatric condition and the doctor advised that consistently throughout the time he saw him he had a diagnosis of major depressive disorder or a depressive disorder.
By February 2002 the plaintiff still had stressors arising from the alienation from his country of origin and within his community within Australia. Dr Allet said by 2002 he believed that the plaintiff's family had arrived but at that stage he was dealing with stressors that the family had endured as well.
Dr Allet saw the plaintiff again on 10 June 2002 and noted:
"Last 20 days tired, nervous, irritable - especially with kids, reduced interest, sleep disturbed, ½ hr – 1 hr of sleep then he wakes. Poor concentration; can't read. Taking paracetamol, 4 ‑ 6/a day. Headaches have returned - back of head. Also head feels heavy. Problems with "law". Smuggling wife in country. Anniversary. They want to cancel visa. Threatened not to see kids again. Seven year old son with PTSD. Witness beatings while in detention in South Australia. (Plan is to) re‑start citalopram, 20mg/day for first four days then 10 milligrams."
Dr Allet saw the plaintiff again on the 8 July 2002 (shortly after the first accident). Apart from being told about the first motor vehicle accident he noted that the problem the plaintiff had had with immigration was that there had been major difficulties with the Department and the plaintiff felt that he had been threatened at various times, that he had smuggled his wife into the country and was going to be charged for that.
Dr Allet continued to see the plaintiff from time to time and on 14 October 2002 noted that the plaintiff was fatigued, had sleep problems secondary to pain and headaches different to previous headaches which the plaintiff said was the result of a motor vehicle accident. Apparently the plaintiff reported that he did not feel like mixing with others, felt nervous and had poor concentration for example reading books but still enjoyed reading. The plaintiff reported that he took Panadol, Vioxx and Tramadol for pain and was on Citalopram. He said that he could not walk for more than five minutes. Dr Allet made a note of his impression of:
"Residual mood symptoms, query role of sick role, query incentive, loss of employment in Australia, anger with Immigration Department, isolation, ongoing problems with son – had been sent to ASSET for treatment, pain worsening, depressive symptoms."
The doctor advised that ASSET was the Association of Survivors of Torture.
Dr Allet saw the plaintiff again on 11 November 2002 when he noted the plaintiff still had headaches but different to the previous headaches, was not sleeping, was agitated and had neck pain and insomnia. He noted that the plaintiff felt he was distressed and had weak body, and reduced strength. The plaintiff isolated himself (the doctor believes from his children) and became irritable. The plaintiff had seen the doctor at ASSET. The plaintiff had expressed uncertainty about his future and was still having problems with the Immigration Department. He was also having problems with his son and was seeking help. He had had a motor vehicle accident and was seeing specialists and a general practitioner for treatment.
Dr Allet said there were chronic stressors in the plaintiff's life even at that time. New stressors, being the development of psychiatric disorder of his sons and also the motor vehicle accidents, had arisen.
When asked whether there had been improvement or deterioration of the plaintiff's symptoms, Dr Allet said there had been times when they improved slightly and there had been worsening of symptoms as well. Dr Allet said between June 2002 and the present his diagnosis would be major depressive disorder.
The following exchange occurred between counsel and Dr Allet:
"That comes to an issue. If we could wish away the car crashes, would you be able to professionally indicate what range of outcomes there might have been in any event from a psychiatric perspective?---My view is that the car crash certainly has contributed to this, but I think the outcome would have been poor even in the absence of the accident.
Why do you think that?---Because of what had been going on before, so he'd had a depressive disorder in the context of many factors which were not changing, were ongoing. It is especially the separation from his family and the difficulties with the Immigration Department. Secondly, even though there appeared to be an improvement in his mood, a subjective improvement in his mood, my objective assessment, I think, which was in January: it was in February 2002 – was that there was still residual depressive symptoms at a time that he had stopped his medications and wasn't keen to return to them and also despite – if it was only related to his family and the Immigration Department or at least his family reunification with his family didn't protect him because there were new stressors to be dealt with there and so even prior to the first car accident he had all the symptoms of a relapsing depressive disorder.
You say the prognosis was poor. How poor in range?---There weren't many things going right for him to change the situation. His English was still limited. He was isolated in terms of language, in terms of work. He felt separated from his family, even though they had returned, partially because of their experiences. He felt unappreciated for his skills as a lab technician. He felt almost insulted that he had to do a course again rather than his degree being accepted here. Because he couldn't provide for his family, he felt less of a father and none of those things were likely to change dramatically immediately.
Some of them have changed over time, though, haven't they, since you have been seeing him?---Yes. Sorry, the other thing I was going to say – and the longer depressive disorder remains and you don't achieve remission of the disorder, the more likely it is to continue long term and become a chronic depressive disorder.
Some of those stressors with the family that you have identified, we know with hindsight if you like, but if we look around from February 2002 to February 2006, some of those stressors have ameliorated. Would you agree?---From what I've been told, yes. From what I've been told they have improved, yes.
Which ones have got better?---Well I believe his Visa has been approved now, so there is not the threat of being sent back home.
Would that have made the prognosis better or worse, knowing those things now?---I don't think so, because the nature of the human mind is that you don't remove the stress that has been there for years and it just disappears, firstly. There are secondary complications to those kind of stressors in someone's life. There are secondary problems with the family as a result of what he was going through, and even if you remove the original stress, the problems with the family that started through that are then maintained.
Are you able to, in qualitative or quantitive terms, ascribe the degree of aggravation of his psychiatric condition because of the car crashes (if any?)---Certainly they would not have helped, but can I just say – I have no way of proving this, its just an opinion – but one thing the car accidents can do for Mr Al Aaraji, and I suspect that's what was going on, is that he saw a way for his symptoms to be acceptable rather than being a psychiatric disorder, if that makes sense. A car accident is never good for anyone, but I'm not sure the outcome would have been very different. The trajectory prior to that was that of a chronic psychiatric disorder."
In cross-examination, Dr Allet said:
"I think there was a good chance that the relapse of these symptoms (the symptoms as at 10^th June 2002) or, really, the exacerbation of existing symptoms was recurring in the context of long standing stressors and some of them were not major stressors but it was really the combination of a number of stressors that led to relapse of this disorder and also coinciding with having ceased his medication earlier that year."
Dr Allet confirmed that there was no post traumatic stress disorder involved.
Dr Allet was referred to a letter that he wrote on 17 January 2005 to Dr Steve Wright in which he did not refer to the motor vehicle accidents. In cross-examination he was asked whether that was because he did not see them as being a major cause of his problems and he replied:
"I'm not sure I'm saying that the motor vehicle accidents weren't relevant, but I'm – I suppose the point I was trying to make is that the depressive disorder has been caused by a lot of other things prior to the motor vehicle accidents."
When asked to expand and it was put to him that the major or significant problems related to other family stressors rather than the motor vehicles accidents, Dr Allet responded:
"Yes I would have to say that. However there is no doubt that in this family, and not just Mr Al Aaraji, the motor vehicle accidents, rightly or wrongly, led to secondary problems which then exacerbated the situation as well … the end result is that this man has a disorder which was not completely cured. He wasn't free of the symptoms and almost any stress directly or indirectly related to the accident were going to contribute to it as well as all the other things that predated the accident."
Dr John Kingston Ker, a consultant physician in rehabilitation medicine was called and produced two reports having seen the plaintiff for medico/legal review. Those reports were dated 25 November 2004 and 8 January 2007.
In his first report Mr Ker reported that the plaintiff reported headache extending from the occipital region towards the right and left of the mid line. He described that area as the base of the cranium and top of the neck. The plaintiff also reported altered sensation on the left side of the neck extending into the face and neck and low back pain. He also reported radiation of discomfort into the shoulders and parathesia in the hands, pain radiating to both buttocks and pain on the right lower limb and altered sensation in the feet. He felt that the cause of these injuries and symptoms were as a result of injury and exacerbations of underlying generalised cervical and thoraco – lumbar degenerative disease of the spine.
In that report, in answer to a question as to whether the plaintiff's working life had been shortened as a result of the accident sustained injuries, Mr Ker said "without reversal of this man's current complaints and illness behaviours, I see little prospect of him returning to the workforce in any productive manner". He was questioned about that illness behaviours and what he meant by the term. He responded:
"So first of all what you observe: how the patient moves; how they walk; how then in the structured clinical examination when you actually ask men and women, for example when examining the muscular skeletal to move – essentially illness behaviours are when those signs are – when a person presents with abnormal signs. So hopefully you and I would not present with illness behaviours but somebody with neck pain or neck stiffness, that's an illness behaviour."
He was then asked whether the plaintiff demonstrated these behaviours and said:
"This man demonstrated quite prominent behaviours and I've used the term 'illness behaviours' because the prominence of his behaviours when compared to what I understood to be that pathology that had arisen as a result of the episodes of injury appeared at an imbalance, shall we say. There was rather more prominent illness behaviours than I would have expected to see with that pathology."
He went on to say:
"I certainly think that his view of why he was the way he was, was directly related to the four incidents of motor vehicle of – or the four motor vehicle incidents that had occurred in the years directly prior to my consultation with him; that would be his interpretation. I also was aware of the fact that he had a depressive disorder and had had treatment for a depressive disorder so I could not exclude that factor and, thirdly I was being asked to see this man in the context of a medical/legal consultation. So it was not possible to exclude from my evaluation of the factors involved in this matter that there was some considered element of gain."
In his second report Mr Ker said "whilst he has been in a number of motor vehicle accidents and has evidence of a degree of underlying degenerative change in his cervical and thoraco – lumbar spine, in my view his physical restrictions are out of keeping with that spinal pathology". In examination he said that the pathology to which he referred was:
"Those investigations, those radiographs – the radiographs and CT scans of his spine were as I understood it the only investigations that have been undertaken in this man to determine what pathology in his spine was actually present and I considered that the pathology revealed by the x-rays of his cervico-thoracic and lumbar spine was modest; where as his presentation to me was actually that of a person with profoundly and restricted and painful spinal movements and his description of the impact that this had upon him on a day to day basis which suggests to him to be behaving in a manner of a profoundly disabled person".
Mr Ker was asked:
"He presented with illness behaviours in the background of that pathology that I've taken you to. Did he present with illness behaviours to the extent that it was impossible for you to make any assessment of the underlying physical injury or are you able to disentangle the two?---I think it is very difficult actually, as you say, disentangle the two in the sense that if we are going to describe how a person who has been in a number of motor vehicle accidents and would have had equivalent x-rays would behave we might accept that it is the norm and that this man is at one end of the spectrum. To try and identify injury in this situation I think is extremely difficult because we're not looking at fractures; we're not looking at overt traumatic disruption of other bodily tissue. We're heavily reliant on how he basically presents. So I don't think I can actually disentangle those two accept to say that there might be a norm that other persons in the population might present with."
In cross-examination, aspects of an examination carried out by Mr Anastas (to which I will refer later) were put to Mr Ker in the following form:
"If a person said to you, 'I've altered sensation to touch over the whole of my upper limb, left arm, extending over the top of my shoulder, along the left side of my neck, and over the left side of my face' would you describe that as an unusual distribution of sensory loss?"
Mr Ker responded:
"In the absence of any other supportive pathology – it, for example would not be an unusual area of sensory loss if somebody had had a form of stroke. They might well have had such an extensive area, but then you look for other corroboratory evidence of that situation."
He then went on to say:
"Well, when you describe an altered sensation of the whole of the arm, on the side of the neck and on to the face you are describing loss of sensation in all of the cervical dermatomes and also in the distribution – if we're talking about the fifth, the face, we're talking about that as one of the cranial nerves, the fifth cranial nerve. I know of no pathology that would produce such an isolated area of skin altered sensation when somebody has this form of neck injury".
Mr Ker's cross-examination continued and included:
"So we get to the point where you can only attribute this man's complaints that he now makes to you to something other than significant – physical injuries. Would that be fair?‑‑‑The complaints he has don't fit with significant physical injury because as I've indicated earlier he has abnormal illness behaviour, that is to say his presentation is out of keeping with the observed evidence of pathology, whether that be degenerative or injury pathology or a combination of both:
Would you agree with the proposition that whatever his complaints are they may well emanate from psychiatric symptoms from which this man suffered prior to any of these accidents?---I've been shown evidence that from psychiatric reports that this man did have a depressive illness that antedated these accidents. He still exhibits features of depression so I would accept that proposition.
Fine, what you are saying, are you not, (a) there is no clinical evidence of injury?---Of injury – yes, there is no radiological determined evidence of injury. That's right.
(b) You do not reject the proposition that all of this man's complaints of pain suffering disability may well emanate not from as a consequence of his accident but rather his pre‑accident psychiatric causes – stressors would you agree with that proposition they may?---They may.
Finally, you do not exclude the possibility that there is an element of gain involved, an intention to embellish for the purpose of gain?---I think that's correct."
Dr Carroll, a consultant rheumatologist was called and produced four reports prepared by him dated 17 September 2003, 17 December 2003, 29 June 2004 and 12 October 2006.

In his first report, Dr Carroll said that the plaintiff presented severely disabled with intractable neck pain and occipital headaches, general spinal pain, lumbar pain with radiation to the right leg, loss of sensation in the small and ring fingers in both hands which may be intermittent and some loss of sensation over the left cheek area. He felt that the plaintiff's presentation was consistent with whiplash injuries but it was difficult to assess the extent to which psychological factors were contributing to his ongoing pain and disability. Dr Carroll said that the symptoms were compatible with that type of injury and his examination findings were consistent with that type of presentation, and the plaintiff exhibited little in the way of spontaneous movement of his neck, and similarly the lower back had minimal spontaneous movement.
In his second report he noted that there had been no improvement and the plaintiff presented with intermittent numbness and paraesthesiae in a C8 distribution roughly in both arms, right leg pain and difficulty walking. He said in evidence that he did not find any support for damage to the C8 nerves but the reported paraesthesiae in the small finger and in the ring finger of both hands would be compatible with the C8 nerve root lesion on one or both sides. However, he said there was nothing to suggest in the plaintiff's case that there had been direct trauma to those C8 nerves and there was no objective signs that supported that.
By the time of his last report, Dr Carroll said that the plaintiff continued to experience constant disabling neck pain with radiation to the head, shoulder girdle and upper arm regions, frequent, severe and debilitating headaches, paraesthesiae and weakness in the hands and escalating low back pain with radiation to the legs and loss of spinal movement. He also had profound sleep disturbance and remained depressed. Dr Carroll thought his prognosis for recovery was very bleak indeed, with a 10 per cent probability of some improvement at some time within the course of the next three years, and 20 per cent probability of improvement sometime in the course of the next five to seven years, and only 30 per cent likelihood of improvement even in the long term. He considered the plaintiff would require long term psychiatric care and analgesia.
Dr Carroll was asked whether he saw any illness behaviours when he first saw the plaintiff in September 2003. He responded that that had been evident throughout.
Dr Carroll said that many patients who suffer motor vehicle accidents, particularly of the rear end collision type have exactly the symptoms reported by the plaintiff but not all of them and not often in the severity that the plaintiff has.
In re-examination, Dr Carroll was asked how the plaintiff reacted to examination, and how that helped in the formation of his diagnosis. He said:
"The way in which he presented in respect to movement, both spontaneous and in response to questioning or commands. The pattern of tenderness that he exhibited and a consistency over time in respect of those observations."
Dr Carroll was asked whether he had observed the plaintiff in other than a formal clinical setting and if so, why. Dr Carroll confirmed that he had and said:
"I was interested to know whether there was a significant difference between how he performed when he was formally examined and how he might be able to function physically when he wasn't aware that he was under observation or when he might be – let's say – not in a situation where he might wish to embellish the way in which he presented and so I made observations in respect to him redressing after the examination when he wasn't aware of that and when he was – and on one occasion when he left the surgery and crossed the road and was walking away.
Was there any difference?---No there wasn't a difference."
Mr Nicholas Anastas was called on behalf of the defendants and produced five reports dated 15 October 2002, 7 May 2003, 19 May 2003, 12 July 2004 and 9 August 2005.
In the first report Dr Anastas, after noting the complaints given by the plaintiff, diagnosed that he was having features consistent with a soft tissue musculo-ligamentous type injury to his cervical spine and lumbo sacral spine. In that report he noted that the plaintiff had not looked for work because he "cannot walk" and said in examination that he could find no physical reason for that. He also noted in that report that the plaintiff does not have a neurological deficit in his upper and lower limbs and said the significance of that was that it excluded nerve root or peripheral nerve damage.
In his examination referred to in his report of 7 May 2003, Dr Anastas noted that the plaintiff resisted anything more than a few degrees of movement in any direction of his cervical spine, and complained of discomfort on extreme of all movement. He also complained of being tender on the lumbo sacral junction on either side of it, more so to the right. When asked to demonstrate forward flexion in the erect position, the plaintiff's fingertips would not reach to knee level but he was able to sit up on the examination couch with his legs straight out. The doctor said in his report "I cannot explain this inconsistency of spinal movement on anatomical grounds". When questioned about that he said "well, examined one way he can bend down with his fingertips reaching below the mid‑tibial level, but examined another way he wouldn't bend down any further than his knees reaching the knee level".
In the report dated 12 July 2004, Mr Anastas again set out the complaints of symptoms. At p 3 of that report he set out the complaints relating to the plaintiff's lower back and the difficulties that he experienced in moving, sitting, standing, driving etc. Mr Anastas said that someone who has all of those complaints would be significantly incapacitated. He did not believe that that degree of incapacity was consistent with the type of accidents that had been described to him by the plaintiff.
In that report, in relation to the neurological examination, he noted altered sensation in a number of places which did not follow an anatomical dermatomal pattern. He also noted an unusual sensory loss to the plaintiff's right leg. He also noted altered sensation to touch over the whole of the right lower limb, and again the area of sensory loss did not follow an anatomical dermatomal pattern. In evidence, he described this as an inconsistency. He said:
"Well, dermatomes in the body – in the limbs they run longitudally and there are a number of dermatomes for each limb, upper and lower limb, and for the whole limb to be the sign of altered sensation to touch, it implies that every dermatome that supplies the upper limb is involved which involves – it goes from about C4 down to T1. Then you have a different distribution on the shoulder – this gentleman had altered sensation to touch from the top of his left shoulder then along the side of his neck and the side of his face. It's not an anatomical distribution".
Mr Anastas' final report is dated 9 August 2005. The complaints at that time show that the severity of pain in the neck had gradually increased, and it had increased by 70 to 80 per cent since July 2004 when Mr Anastas had previously seen the plaintiff, and was present all the time. The plaintiff also complained that since July 2004 his low back pain had increased. Again, the plaintiff assessed that increase to be in the vicinity of 70 to 80 per cent and present all the time. He expressed difficulties including moving, sitting, standing and the like. In examination Mr Anastas did not think that such a progression was normal for a soft tissue injury, and in fact, quite the opposite. Again in that report, Mr Anastas noted a discrepancy between straight leg raising in the supine position and in the sitting position which he could not explain.
In his diagnosis, Dr Anastas reported "the inconsistency with respect to spinal movement at straight leg raising indicates a degree of symptom magnification and that his incapacity is not as great as he perceives". When questioned about that and the non-anatomical distribution of the dermatomal distribution patterns and what he inferred from them, he said "well, as I've said in the report, there is symptom magnification and that the incapacity is not as great as he perceives and accordingly as he states".
Under cross-examination, Mr Anastas confirmed that when he first saw the plaintiff, the symptoms were not out of keeping with the nature of the crash that he described, and there was nothing about his presentation that was unremarkable. Also in cross-examination, he said that on the second time he saw him the examination was unremarkable apart from the inconsistencies that he had noted. He was then asked:
"If you were to summarise here, I suppose you would say that the man had, at best, soft tissue injuries at some stage. Is that correct?---Yes. On initial presentation, yes.
For injuries of that kind, are there really any objective signs that can ever be displayed by a plaintiff or a patient?---No."
Under re-examination, Mr Anastas was asked:
"Doctor, you said that at the time of the plaintiff's first interview with you, you said you felt he may have sustained soft tissue injury?---Yes.
Did your views on that in any way change?---No."
The final medical witness who was called was Dr Jaroslaw Komeda, a psychiatrist. Dr Komeda produced a report dated 20 November 2005. In that report, Dr Komeda deals at some length with the background of psychiatric history. He reported that the plaintiff denied any physical problems prior to the first accident and noted that at his second meeting with the plaintiff, Dr Komeda was still uncertain as to the full extent of the plaintiff's distress at that time because the plaintiff was reluctant to disclose some aspects of his personal history "for personal and security reasons". In examination-in-chief, Dr Komeda said:
"Initially Mr Al Aaraji was focussing on describing his current symptoms and every time when I was trying to enquire about his personal history, which is an important part of any psychiatric history taking, he appeared to be quite concerned and was distressed and didn’t want to go into any details of his personal history prior to the first car accident which occurred on, I think, 26 June 2002."
Later, in examination, the doctor said that it was very difficult for him to shift the plaintiff away from that understanding of his problems and go back and explore his distress prior to the first car accident.
By his report, Dr Komeda diagnosed the plaintiff as suffering from a major depressive illness and adjustment disorder with depressed mood, chronic type, as defined in the Diagnostic and Statistical Manual of Mental Disorders (DSM‑IV, 1984). When questioned about the adjustment disorder with depressed mood of chronic type, he said that he had added this:
"Because of – there have been a number of factors immediate identifiable stressors, which precipitated his depression and the reason why it stated as 'chronic type', by definition adjustment disorder, most likely acute type, lasts for up to 6 months. Well, obviously in Mr Al Aaraji's case it's much longer than 6 months and the specific stressors which I referred to were events of his personal history prior to the first accident, and possibly to some extent the subsequent distress."
Under further questioning about the comments contained in the report that:
"The plaintiff said that he was never directly affected by local conflicts and wars involving Iraq in the last few decades including the Iraq – Iran war and so called first Gulf war. The plaintiff described his life in Iraq prior to the recent political crises and 'comfortable' ".
The doctor said that the plaintiff had told him that he had advised others that he had problems with the Saddam Hussein regime and that at least three near family members had been murdered. On being asked how those comments sit together the doctor said:
"Well, that's what struck me on my first meeting with Mr Al Aaraji, that on one level he's so profoundly distressed; on the other hand he almost played down some of the events in his personal history which he did mention to me on the first meeting but he dismissed by saying his life was comfortable and really he was not affected by even the immigration experience … it was quite obvious that his personal history has been quite dramatic over the last few years and that contradiction in the formulation of his understanding of his distress however that's what led me to that rather longish formulation of his diagnosis in point (c)".(There a reference to point (c) on pages 11 and 12 of his report).
The doctor described it as a mis‑attribution of the plaintiff's distress to the car accidents which was quite striking during his contacts with the plaintiff. He said:
"I think Mr Al Aaraji was dismissing the fact that – the quite objectively very traumatic, very difficult experience of his immigration, his travels from his native country to Australia and what happened to his family was not at all affecting him at the time".
Further in examination, Dr Komeda said:
"In my assessment, I would like to reflect back on Mr Al Aaraji's presentation prior to the first accident. He was quite disabled by his depressive illness. He was under intensive psychiatric treatment. There had been a number of problems happening in his life and he was clinically quite unwell. Subsequently after the accident it affected his recovery but I don't think that significantly contributed to his current psychiatric disability. I would probably assess his disability – that portion of his psychiatric disability related to the car accident as to 10 to 15 per cent."
He went on to say that the remaining 85 to 90 per cent related to all the other events.
Under cross-examination, it was put to the doctor that part of the apportionment suggested by the doctor was as a result of headaches complained of being just a carry on from what he had experienced prior to the accident. There was some considerable cross-examination about those headaches and their nature, that is to say whether they arose from the occipital area or were inside the head and bitemporally. Dr Komeda thought that the headaches, both prior to and after the accident, were one and the same and did not see the temporal and occipital areas as being so very different in so far as the effect on this plaintiff. He said that the headaches were "striking similar".
In relation to the physical symptoms complained of by the plaintiff and whether or not they were somatisation, the doctor said:
"I think there is a degree of physical problems but the pre‑existing distress and ongoing distress has dramatically aggravated subjective perception of the pain. Talking on the subject of somatisation, there is a whole range of psychiatric diagnosis, called conversion disorders, which may have – are a well – recognised entity of psychiatric problems, which may result in people having major physical symptoms with no organic pathology, including patients not walking, remaining in a coma for a long time. So I think underestimating the intensity of the correlation between distress, depression and physical symptoms will lead us to the wrong conclusions."
Dr Komeda was further cross-examined about his diagnosis of the plaintiff mis‑attributing his symptoms of a depressive nature to the accidents. He accepted that that could be an unconscious process. When asked if it was likely to be an unconscious process in the present case, he said:
"Yes. I think in some situations mis‑attributions could be of unconscious process, but I think the context of this medical case is a medical-legal one and I think we cannot forget the possible secondary gains and possible other aspects of the case which need to be taken into consideration. I think again I'm finding myself in a bit of an uncomfortable situation of actually – of working against the patient. I mean, as a clinician I want Mr Aaraji to get a proper treatment but as long as he continues with mis‑attributing his problems to specific events which actually skews his own understanding of what he has been going through, well, he's not going to move on. He's not going to receive appropriate support and treatment which he requires, and that's the point which I was trying to convey in my report."
When asked what the root cause of his depression was, Dr Komeda said:
"Well, I think at the moment there's a whole range of elements in his personal life which would be perpetuating his distress. I mean, one of – I mean, relocation and acculturation in a different country, very important for all of us. … So we're talking about a person who had obviously quite high expectations of himself; quite a dynamic of highly achieving professional - Well basically not being able to meaningfully conduct his life. He mentioned on a few occasions during our conversations about his family and his brother who's doing a PhD in America … and I think for a man that will have quite a profound psychological impact on his life. There have been a number of problems surrounding the Immigration Department which I can imagine how distressing for anyone they would be. His family having the experience of Woomera Detention Centre – I mean, we heard only on the news how difficult the circumstances could be there, and particularly if it involves your own son who is diagnosed with post traumatic stress disorder and requires psychiatric treatment. His initial attempts were to reconnect with some sort of – with company of appropriate – sort of culturally and religiously with company here in Perth, but he has withdrawn from that. He had some – that happened a long time ago. So he also – all the stress and the circumstances of the immigration had a profound impact on the family structure and the family dynamics. … So I think from that point of view – I mean, I'm giving a bit of a rough diagnostic formulation, but all these problems will have to be addressed in a clinical meaningful way as they are. If we are mis‑attributing this problem to just a car accident because unconsciously or consciously Mr Aaraji prefers to blame those for his distress, well, he's going to be stuck. He's not going to be moving on clinically. That's my concern."

Findings in relation to injuries sustained in the various accidents

It was agreed by counsel for the plaintiff and the defendant that I must make separate awards of damages for the injuries sustained in each of the accidents. This is required of me by reason of the terms of s 3C Motor Vehicle (Third Party Insurance) Act 1943 which relevantly provides:
"(2)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.
(3)The maximum amount of damages that may be awarded for non‑pecuniary loss is Amount A, but the maximum amount may be awarded only in a most extreme case."
In saying that I must make the award in respect of each accident, I must not lose sight of the fact that I have found that there was no negligence on the part of the second defendant in respect of the second accident.
Such an assessment is at best one that is attended by artificiality. Nowhere in the medical evidence have the doctors been able to ascribe a proportion of the plaintiff's overall condition to any one or more of the accidents. The plaintiff has attempted to do so by ascribing 50 per cent of his problems to the first accident, 10 per cent to the second, 10 per cent to the third and 30 per cent to the fourth. However, before I deal with my assessment, it is necessary for me to say something in relation to the credibility of the plaintiff.
As is quite usual in cases of this nature, the plaintiff's complaints are largely subjective. There was a good deal of examination of doctors revolving around the fact that there was no hard physiological evidence to support any physical injury to the plaintiff, and that the doctors, in coming to their diagnoses whether it be physical or psychological, were to a large extent reliant upon an accurate history being given by the plaintiff. However, the absence of objective signs is not necessarily determinative. Mr Anastas, called on behalf of the defendants, readily accepted that the plaintiff's complaints (at an early stage) were consistent with the type of accidents described by him. He did not resile from that.

In cross-examination Dr Allet suspected that the plaintiff was sufficiently depressed to have been unable to hold down a job even if it wasn't for the accidents. He said that a laboratory technician would have to be good enough at English to communicate.
In re-examination and in relation to Dr Allet's evidence that he suspected the plaintiff would have been unable to hold down a job, Dr Allet said:
"The fact that the depression had not lifted and without resolution of his depressive symptoms, this man was not going to function because the symptoms were severe from the outset and severely incapacitating him. So his disability from this disorder was there from the outset.
Yes but what do you mean by suspect so? What degree of certainty was that intended to convey? Hundred per cent, zero per cent, fifty per cent?---I would say it is more than fifty per cent so if I was a betting man, I would say he was not going to function."
Dr Ng gave evidence that if the plaintiff's stressors, his dealings with authorities, had been removed and if there had been no accidents, he would have expected that the plaintiff ought to have been able to get back into full‑time employment. However, he did acknowledge that the plaintiff was a candidate for future relapse, even with the removal of stressors.
The focus of Mr Ker's evidence was on the plaintiff's physical condition. In his report of 25 November 2004 he said that the manner in which the plaintiff presented to him was not commensurate with continuing study. However, he believed that in the future the plaintiff would have a capacity to return to tertiary study in a physical sense. At the time of that report the plaintiff was unable to compete for any form of occupation and appeared to be unable to present for systematic study.
In his report of 8 January 2007, Mr Ker noted that the manner in which the plaintiff presents remains, in his view, incompatible with any form of gainful work. After commenting upon the plaintiff's difficulties in maintaining study he said that the plaintiff was unable to compete for any form of work within the open workforce, and Mr Ker had doubts that in the future he would be in any way successful in such a venture. Mr Ker did not amplify those comments in oral examination but did spend some time, as I have noted, dealing with the plaintiff's illness behaviour.
Dr Carroll, in his report of 12 October 2006 regarded the plaintiff as totally disabled and completely incapable of undertaking any form of gainful employment with no foreseeable prospect of any recovery to change that prediction.
Mr Anastas, in his report of 15 October 2002 said that the plaintiff advised that he had been looking for work as a laboratory technician prior to the accident, but stopped looking for work after the first accident. Mr Anastas thought he was fit to engage in work as a laboratory technician on a graduated basis. He said the need for the graduated return to work was caused by the plaintiff's general body de‑conditioning, consequent upon lack of activity.
Dr Komeda in his report dated 20 November 2005 said the plaintiff was unfit to return to work or regular studies. He said he had been very disabled by his medical problems and his chronic depression. It was unlikely the plaintiff would be able to focus on any structured activities and/or studies, and his work capacity would be affected by his decline in concentration, chronic tiredness/fatigue, chronic pain, recurrent headaches, lack of motivation and high level of frustration with the degree of his current physical disabilities.
In oral evidence, Dr Komeda was asked whether, having regard to the materials that he had seen, prior to the first accident, the plaintiff was likely to be able to work as a laboratory technician. Dr Komeda responded:
"I think he – it would be quite unlikely that Mr Al Aaraji would be able to take that responsibility and I think that he has had problems communicating on a personal level in English. That would affect his capacity to practice as a laboratory technician but he has also been – prior to the accident – he was quite unwell and quite psychiatric disabled and his mental status at the time will make it highly unlikely that he would be able to hold regular employment."
Dr Komeda had assessed the plaintiff's psychiatric disability related to the car accidents as 10 to 15 per cent.
The following exchange occurred in cross-examination of Dr Komeda:
"I think you said that as far as you were concerned, because of what happened to him before the crashes and his psychological condition, then, he was highly unlikely ever to be able to work. Is that right?---Yes, and I would like to stress, unlikely. I cannot – well, it would be difficult for me to comment on his capacity to regular employment prior to the first accident.
But you said on the basis of what he had suffered before the car accident, before the first car accident, and nothing else, by reason of that condition, he was unlikely ever to be able to work. Is that right? Did I understand your evidence correctly?‑‑‑Yes.
Highly unlikely?---Yes.
Why?---Well, I think Mr Al Aaraji reported quite persistent recurrent emerging depressive illness combined with medical symptoms which were not – didn't have any specific – at that stage there was no specific organic pathology was identified. Also his family life was quite affected by the circumstances of immigration and the distress at the time. In view that his somatic symptoms persisted for quite some time, and the same with recurrent depressiveness, I believe that it would take him – well, it would be difficult for him to return to regular employment."
When asked what the possible range of outcomes would be had the accidents not occurred, Dr Komeda responded:
"I think most likely it would be unlikely, or highly unlikely, that he would be able to return to work in view of pre-accident psychiatric history and medical history at the time. Plus my understand was that Mr Al Aaraji found his education and general assimilation in Australia quite difficult, which could compound his distress and was probably part of the cause of his distress."
I have already dealt with Dr Komeda's view of the plaintiff's misattributing his problems to the car accidents as opposed to his psychiatric problems and the doctor's opinion that he was not going to move on clinically.
Cross-examination continued with the following exchange between counsel and Dr Komeda.
"… When Dr Allet gave evidence he gave an answer that he suspected that even if it weren't for the car accidents that Mr Al Aaraji was not going to return to the workforce. That's your opinion as well, isn't it?---Yes, I share that opinion.
I asked him to put some, if you like, colour to his expression that he suspected – I think you have said 'highly likely' today. Is that correct?---I said 'highly unlikely that he will return'.
Highly unlikely?---Yes.
I asked him to do a percentage on it and he said … 'look more than 50 per cent'. By highly unlikely would you say the same sort of order of likelihood; low likelihood?---No, I think I would increase that percentage to a more substantial one. Again the reason why I have a bit of delay in that sort of opinion, I mean our opinions are based on clinical experiences, on what we have seen on our clinical practice, and we have seen unfortunately quite a few – I mean, I didn't talk to Dr Allet but I can talk obviously only on my own behalf. I've seen quite a lot of patients with very similar histories who have become involved with mental health services of their distress because of their medical problems, and they are not leaving mental health services for a very long time, and so I think Mr Al Aaraji, from my clinical experience, had the sought of- had been involved – the practice involving his history prior to the first accident which would make him quite unlikely to return to regular workforce. That's how we would like to formulate it. So the percentage rate, I would sort of increase to about 70 per cent.
About 70 per cent?---Yes. It would be much likely that he would want to return rather than putting it on the level of 50 per cent, so a 30 per cent likelihood that he would return in the longer term?---Yes.
Would you agree that in the way he's now presenting after the crashes, the way he's now presenting, it's an high degree that it's almost beyond conception that he's ever going to return to work?---I think yes, at the moment he is unhappy to return to work."
Later, in his evidence, the doctor said:
"When the patient is so rigidly stuck in the current situation and where there is a legal proceeding happening, when he is attributing the causes of his distress to the wrong reasons, well, he has zero chances of returning back to work – hundred per cent unfit to return to work. I mean, the message here which I want to convey is that in the current situation, in the current circumstances, I cannot make a specific prediction about his capacity to return to work because we're talking about the situation which actually enforces patients of psychopathology."
The evidence relating to the plaintiff's capacity to work relates to both his physical and psychological capacities. So far as the physical is concerned, I accept the evidence of Mr Anastas that there is no reason why the plaintiff could not return to full-time employment. I do not accept the evidence of Dr Carroll in this regard. All of the medical evidence points to the plaintiff not having sustained serious injuries and I have made my findings in that regard. Whilst Mr Ker may be seen to be supporting a proposition that the plaintiff would not return to work by reason of his physical disabilities, Mr Ker did agree that there were unusual elements in the plaintiff's presentation and illness behaviour. There is no objective evidence of any serious injury to the plaintiff.
Mr Anastas accepted that after the first accident, the plaintiff presented with symptoms that were consistent with a motor vehicle accident as described by him. It is also consistent with the way in which the plaintiff presented to Dr Beshay. I find that as a result of accident, the plaintiff did suffer some incapacity for work, but I am unable to quantify the extent thereof on the evidence before me. Further on the evidence is difficult to see how those injuries could have been productive of loss at that time. The plaintiff was not working.
From a psychiatric perspective, I have already accepted the evidence of Dr Allet and Dr Komeda over that of Dr Ng. I find that as at the date of the first accident, the plaintiff was not exercising his working capacity and indeed, was incapacitated from doing so. He had suffered chronic depression and had had a relapse shortly before the first accident. There were a number of factors in his life and as described by Dr Allet "he was not going to function".
Nevertheless, the evidence from Dr Allet and Dr Komeda suggest that there was a possibility that the plaintiff would be able to return to some working capacity at some time in the future, although it is by no means clear from the evidence as to when that might have been.

Legal principles

In Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, Deane, Gaudron and McHugh JJ in discussing the assessment of damages for future or potential events distinguished between the determination of whether an event has occurred and an event, which it is alleged, would or would not have occurred, or might or might not yet occur. The Court went on to note at p 643:
"If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high – 99.9 per cent – or very low – 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent – or so high as to be practically certain ‑ say over 99 per cent – the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability."
Accordingly, when considering a future event the Court will take a chance of the event occurring into account in assessing the damages; Poseidon Ltd & Sellars v Adelaide Petroleum NL (1994) 179 CLR 332.
A loss of earning capacity does not attract an award of damages except in so far as it is or may be productive of economic loss; Graham v Baker (1961) 106 CLR 340 at 347. The claimant carries the onus of proving loss of earning capacity and the extent to which that loss produces or might produce financial loss; Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 18. In Setton v Eves [2006] WASCA 3, McLure JA, having referred to Medlin went on to say:
"26.In general, it is desirable for a plaintiff to call precise evidence of what he or she would have been likely to earn but for the injury and what the plaintiff actually did earn (past loss) and was likely to earn after the injury (future loss). However, the failure to call such evidence, particularly in relation to future loss, does not necessarily result in nominal damages; Malec v J C Hutton Pty Ltd (1991) 69 CLR 638 at 643; State of New South Wales v Moss (2000) 54 NSWLR 536 at 551-555 per Heydon JA. On the other hand, if the plaintiff calls incomplete evidence, it is difficult to complain of a low award for lost earning capacity; Moss (supra) at 552."
Her Honour went on to say:
"27.Unless the defendant asserts a failure to mitigate, he bears no legal onus. However, if the plaintiff leads evidence from which relevant inferences may be drawn, then a defendant will bear an evidentiary onus".
and referred to Thomas v O'Shea (1989) Aust Tort Rep 80–251 and Bowen v Tutte (1990) Aust Tort Rep 81–043.

Application of the legal principles to the facts

The plaintiff was, as at the date of the first accident, almost 46 years old. At trial he was approaching 51 years of age.
I have found that at the time of the first accident, the plaintiff was not exercising an earning capacity and was disabled from doing so by reason of his depression.
The evidence of Dr Allet and Dr Komeda was that, putting aside the plaintiff's physical injuries, there was a chance that the plaintiff might recover sufficiently to engage in some form of work.
The evidence of those doctors is also to the effect that the motor vehicle accidents may well have had some further impact upon the plaintiff's psychological state. Dr Komeda put it at 10 to 15 per cent. Dr Allet put the prospect of the plaintiff becoming fit for work, even without the car accidents, at less than 50 per cent, and Dr Komeda put it at approximately 30 per cent.
I have found that physically, there is no reason why the plaintiff could not engage in work. However, the combination of his physical injuries, psychological disabilities and the way in which the accidents have impacted upon his psychological state leads to the conclusion, and I so find, that the plaintiff will not return to work. In coming to this assessment I also have regard to the plaintiff's age, his inability to further his studies and his limited command of the English language.
Notwithstanding this finding, and notwithstanding the accidents, I also find, based upon the evidence of Dr Allet and Dr Komeda that the plaintiff's prospects of rejoining the workforce in Australia were not good. As Dr Allet put it, "he was not going to function".
Dr Allet and Dr Komeda's evidence might be said to be more than speculation as to the plaintiff's prospects of joining the workforce. However, that speculation must be viewed in the context of their evidence which was that the prognosis for the plaintiff was not good. Further, there was no evidence as to when, putting the accidents to one side, the plaintiff might have so recovered from his chronic depression as to be able to enter the workforce, indeed, to enable him to do so, when he might have completed his studies as a laboratory technician and so improved his English to be able to function in such a capacity.
I do not lose sight of the fact that the plaintiff's employment possibilities might not be limited to that of a laboratory assistant. I was provided with no real evidence of the availability of work for someone such as the plaintiff, and so far as might be earned by the plaintiff in that capacity, I was directed to a St John of God pathology enterprise agreement 2004 which indicated that salary ranges for a laboratory technician were between approximately $35,000 per annum and $41,745 per annum. The WA Health – HSU Award 2006 suggested a minimum salary Level 2 for persons bound by the Award at $32,388 per annum and an advertisement for a laboratory technician at the Chemistry Centre showed a salary range of $40,401 to $50,538. It was not pressed by the plaintiff that the plaintiff could in fact obtain any one of those positions. That information was provided for indicative purposes only.
In context of this case, and having regard to the principles set out in Malec, I find that at the date of the first motor vehicle accident, the plaintiff did not have an earning capacity that could exercise whether as a laboratory assistant or otherwise.
As to the future, again having regard to Malec, I am required to attempt to assess the plaintiff's chances of entering the workforce and exercising an economic capacity.
I am not satisfied, on the evidence before me, that the plaintiff would have been able to exercise such earning capacity as he may have had but for the motor vehicle accidents. I am certainly not in a position to make any assessment by way of a percentage chance of him engaging in gainful employment prior to the date of trial, and indeed the evidence would appear to be against that proposition. Notwithstanding that I have found the plaintiff did suffer some physical injuries, and those injuries might in other circumstances have caused the plaintiff an economic loss in the present case there was no such incapacity and no loss.
As to the future, I find that there was some prospect of the plaintiff joining the workforce however, I am unable to determine on the evidence before me as to when that would have been likely to have occurred. Further the psychiatric evidence would suggest that even if the plaintiff did obtain gainful employment there was likely to be periods when there would be lapses into depression which might very well affect his capacity to earn.
There is no relevant evidence from the plaintiff as to what the plaintiff was likely to earn and I am unable to draw any inferences in this regard. Accordingly, the defendant bore no evidentiary onus as to alternative employment, the state of the employment market and likely earnings. The plaintiff had not shown that he had a pre‑existing earning capacity which had been lost.
Because of the difficulties that this case throws up, I am unable to make any assessment of a percentage chance of the plaintiff joining the workforce in the future. I am not able to determine when, if at all, that would happen. To do so in either case would be speculative.
Nevertheless the plaintiff has established that there was some chance of him joining the workforce in the future and in those circumstances the best that I can do is to make a global award. Such an award in the present circumstances, must, of necessity, be modest and I fix the plaintiff's damages for economic loss at $25,000.

Special damages

Dr Beshay gave evidence that there were a number of outstanding accounts relating to treatment given to the plaintiff arising out of the motor vehicle accidents. She confirmed that the amount outstanding was in accordance with Exhibit 9A in the sum of $2,036.

It is impossible for me to assess whether or not any of those items for special damage relate to the second accident. I note that the items commence on 5 December 2003 after the fourth and final accident. Given my findings as to the severity of the accidents other than the first accident, I find that part of that treatment which related to the second accident would be de minimis. Accordingly, I allow the full sum claimed, namely $2,036.
Dr Carroll gave evidence as to the dates he was consulted by the plaintiff and the charges for his services are set out in Exhibit 9B. Opting for the same approach as I did with regard to Dr Beshay's costs, I allow those costs in the sum of $424.20.
The plaintiff produced a bundle of invoices for pharmaceutical expenses. Dr Beshay's evidence was that the plaintiff was on Tramal and Mobic and Efexor for his depression. In addition he takes Panamax and Paracetamol. The plaintiff produced a schedule of such expenses and no attempt was made to identify which of those expenses related to the plaintiff's physical condition and which related to his psychological condition. The plaintiff's psychiatric condition pre‑existed the accident. While the accident may have added another layer of psychiatric problems, there is no evidence to suggest that that additional layer added an extra layer of expense.
The plaintiff's claim for pharmaceuticals is in the sum of $237.15. Doing the best that I can I would allow the plaintiff $100.
I make no allowance for interest on special damages as the expense, whilst incurred, has not been paid.

Future medical expenses

The plaintiff's claim in this regard is set out in the plaintiff's schedule of damages and includes consultations with his general practitioner, physiotherapy, psychiatric, medication, swimming and exercise programmes. The plaintiff claimed a global sum in respect of future medical expenses.
My findings are that the plaintiff's physical disabilities are minimal. In those circumstances the need to visit his general practitioner should also be modest. Also having regard to the evidence of Mr Ker concerning the plaintiff's illness behaviour, there is a good prospect that once this case is over the plaintiff's need to visit his general practitioner will reduce further.
There is no evidence to suggest that the plaintiff needs physiotherapy treatment nor has he engaged in or requires a swimming and exercise programme.
So far as medication is concerned I would not be prepared to allow the cost of medications in respect of the plaintiff's psychological condition, and having regard to the claim for pharmaceuticals in the past it would seem to me that the need for pharmaceuticals with regard to the physical aspects of his claim would also be modest.
Accordingly I am prepared to make a global award for future medical expenses to cover visits to his general practitioner and for pharmaceuticals in the sum of $500.

Conclusion

The plaintiff is entitled to damages as follows:
Non Pecuniary loss
Accident 1$13,900.00
Accident 2Nil
Accident 3Nil
Accident 4Nil
Loss of earning capacity               $25,000.00
Special damages
Dr Beshay $2,036.00
Dr Carroll$424.20
Pharmaceutical expense  $100.00
Future medical expenses                   $500.00
TOTAL$41,960.20
There should be judgment for the plaintiff for the sum of $41,960.20.