| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : ALTINOK -v- BECKETT [2003] WADC 264 CORAM : VIOL DCJ HEARD : 4-8 & 11 AUGUST 2003 DELIVERED : 28 NOVEMBER 2003 FILE NO/S : CIV 2024 of 2001 BETWEEN : MERYEM ALTINOK Plaintiff
AND
WAYNE ALLAN BECKETT
Defendant
Catchwords: Motor vehicle - Assessment of damages - Issue as to circumstances of accident - Effect of assault on plaintiff - Injuries to cervical spine and other areas - Claims for loss of earnings and earning capacity - Turns on own facts
Legislation: Motor Vehicle (Third Party Insurance) Amendment Act 1994
Result: General damages awarded $6,175 plus travelling expenses $350
Total $6,525
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Representation:
Counsel:
Plaintiff : Mr R R Cywicki
Defendant : Mr J R Brooksby
Solicitors:
Plaintiff : Les Sephton
Defendant : Greenland Brooksby
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
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1 VIOL DCJ: The plaintiff, who is now 32 years old, was involved in a traffic accident ("the accident") with the defendant on 14 October 1999.
2 Consequent upon the accident and receipt by the plaintiff of continuing medical treatment, the plaintiff commenced proceedings against the defendant alleging his negligence and claiming damages. 3 Paragraph 4 of the plaintiff's amended statement of claim summarises the claim for damages: "By reason of the accident the Plaintiff has sustained injury, endured plain suffering and inconvenience, suffered permanent residual disability, loss of enjoyment of life, loss of earning capacity and has been and will be put to continuing medical, hospital and other expenses." 4 The amended statement of claim thereafter contains particulars relating to these various claims. 5 The defendant has admitted his negligence, however in his amended defence, the various claims for damages are denied by him and he says that the degree of impact in the accident was of such a minor nature as to be unlikely to cause any or any significant injury to the plaintiff. Further, the defendant has pleaded that if the plaintiff did suffer any loss, injury or damage as a result of the accident, then that was caused or, alternatively, contributed to by various injuries sustained by the plaintiff when she was the victim of a serious physical assault on 1 June 2000. There is no denial that the plaintiff had in fact been the victim of that assault and the circumstances and effect of this will be dealt with in due course. 6 The plaintiff has seen a variety of medical specialists and other practitioners since the accident and, in the course of the preparation for trial and at the trial itself, further specialists' opinions were sought and given. In fact, at trial, a total of 16 medical witnesses were either called to give evidence or their reports admitted by consent. 7 At the end of the evidence both counsel agreed that central to the resolution of the issues between the parties is the credibility and/or reliability of the plaintiff as a person and obviously as a witness; to a lesser extent, the same applied to her husband, who gave evidence in support of the plaintiff. 8 At the crux of the issues between the parties is the accident itself and the circumstances surrounding it. It was agreed by counsel that the
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determination of that issue was crucial to the determination of other issues and, indeed, most of the medical practitioners also held the same view. 9 I will commence, therefore, with an examination of the accident itself and make certain findings as to that. 10 The plaintiff said that she was driving her Holden Gemini sedan in a north-easterly direction along Wanaping Road towards a railway crossing. On the other side of the railway crossing was a road known as Stapleton Road. The plaintiff had taken her two older children to school. It was about 9 am. She came up to the railway crossing - the red lights were flashing but the boom gate did not come down. For some reason her car stalled and/or stopped. She tried to move her car but was unsuccessful. At that point she was in a position some distance from where the boom gates operated and, it appears, near the white line before the railway crossing which is marked with a black line on Exhibit 13. That line is 5 metres from the first set of railway lines. She then heard a braking noise and the defendant's car struck the back of her car "like a bomb". She said her car was then shunted forward and across several sets of railway lines. There are in fact three sets of railway lines making up the railway crossing. Her car stopped again and she was panicking, trying to get the car started and was very frightened that a train would come along - her little son was shouting. She then started her car and drove across the crossing and to the left into Stapleton Road and stopped opposite a deli/pub at the corner of Wanaping Road and Stapleton Road. She got out of the car after the accident and saw that her right side back light was broken and there was a dent in the bumper and near the right back door. The damage was assessed at between $1,000 and $1,500. A Turkish friend of theirs was passing and stopped to give her some assistance. 11 In cross-examination the plaintiff expanded on this description of the accident. She confirmed that the lights were flashing but did not hear any bells ringing. She was pushed onto, in effect, the last and third set of railway lines. She said that after the accident and after she had taken the car off the railway lines, the defendant got out of his car and shouted at her, asking her why she had stopped. She denied telling him that she stopped because she thought her son's seatbelt was undone. She denied talking to the defendant before she moved her car from the point of the accident. She could not remember the defendant suggesting that she move her car to the car park across over the railway line and to the left. She denied that she had in fact stopped some 15 to 20 metres short of the railway crossing. She thought that the defendant's vehicle was going
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something over 60 kilometres an hour. She agreed that she managed to continue to drive her vehicle for some two months after the accident before it was then stolen. She also denied that it was a very minor impact and suggested that the front of Mr Beckett's car was "completely written off basically". 12 The defendant works as a home maintenance worker with the City of Canning. He is 27 years of age. At the time he was sub-contracting, however he is now working for wages. His job was to go to people nominated on behalf of the City of Canning to do various jobs at their houses, including lawn mowing. On the day in question he was on his way to do a lawn mowing job and was travelling in the same direction as the plaintiff. It was a very wet and windy day and pouring with rain and therefore he was driving fairly cautiously - the road was very wet. He drove across the intersection of Wanaping Road and Albany Highway and was proceeding up to the railway crossing. He was travelling at about 10 to 20 kilometres an hour because he was in second gear. There is about 50 metres from the intersection of Albany Highway to the white line before the railway crossing. As he approached the crossing, the plaintiff's car came to a sudden halt some 10 to 15 metres before the crossing. He applied his brakes immediately and swerved to the right, his car sliding on the wet road; by the time his car hit the plaintiff's he would have been travelling at between 5 to 10 kilometres an hour. The left hand bumper of his car hit the right hand back corner of the plaintiff's car. His car came to a halt and he got out of his car and walked over to ask the plaintiff why she had stopped. The plaintiff told him that she had stopped the car because her child in the car had not done his or her seatbelt up. The red light was not flashing and no boom gates were operating. They exchanged some details but the defendant suggested that they should both move their cars out of the way and across the railway line and into the position in front of the deli/pub. Both of them started their cars and drove across and stopped; there was a further discussion. He said the plaintiff got out of her car and made a phone call and some minutes later a friend of the plaintiff's arrived. The plaintiff spoke in broken English but he understood what she was saying. 13 In cross-examination the defendant confirmed that the conditions that day were very hazardous and the road was very slippery. By the time he hit the plaintiff's car he had gone about 30 metres or so from the intersection of Albany Highway. His brakes made no noise because of the slippery nature of the road and slid for about a car length before his car struck the rear of her car. The collision was, he described, "very minor". He did not repair his bumper because three or four days later he had
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another accident which was not his fault and the car was repaired at the cost of the insurance company. As far as the accident with the plaintiff was concerned he would not have repaired his bumper because of the minor nature of the damage. He reported the accident that day to the police at the Cannington Police Station and told the police exactly what he had told me in evidence. He denied that there was a police car in the vicinity or that the police attended the accident at that time. 14 Arising out of these two very different versions, two important observations should be made: 15 When one considers the two versions of the accident, the objective evidence and common sense suggest strongly that the defendant's version should be preferred. It is far more likely, in my view, that after the
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plaintiff suddenly stopped, there was a collision between the two cars short of the white line with the defendant's vehicle not being shunted forward to a position even to the first railway lines. The defendant then got out of his car and remonstrated with the plaintiff as to why she had in fact suddenly stopped as she did. Further, bearing in mind that the vehicles were stopped in the middle of the road in front of a railway crossing, it is a far more acceptable version that the defendant suggested that both vehicles travel forward and to the left in Stapleton Road so that they would be out of the way of other vehicles using the railway crossing. That would have enabled, as it did, for other details to be exchanged and the matter discussed. 16 There is another matter which supports my conclusion that the defendant's version of the action should be preferred to that of the plaintiff's. There was an issue during the trial as to the plaintiff's ability to understand and speak English. At a number of the interviews between the plaintiff and various medical practitioners, the impression was given to them that the plaintiff was unable to understand or speak English virtually at all and required the services of an interpreter throughout those attendances. Having observed the plaintiff giving evidence, I concluded that she had a reasonable to good understanding of English when it was spoken to her and was able to reply in English which could be understood provided she spoke reasonably slowly. During her evidence-in-chief she largely, if not totally, gave her evidence in English but asked for an interpreter during cross-examination. Even during cross-examination I asked her several questions which she clearly understood and answered in English. My observations and conclusions as to the plaintiff's ability to speak and understand English were the same as several medical practitioners who commented on this in the course of their reports and evidence in Court. Further, the plaintiff has held a driver's licence, has lived in Australia for approximately 14 years and served customers for some three months on her own at the kebab business owned by her husband - obviously, in the course of that, she spoke and understood English with customers. The inevitable conclusion that can be drawn from these matters is that the plaintiff has deliberately played down her ability to understand and speak English and has relied upon these attempts to promote her claim for damages. Because of this, my view of the plaintiff's credibility has been adversely affected. Further, as will be seen generally in the course of these reasons, it is my view on the evidence available that the plaintiff and her husband have set out to exaggerate the effects of the accident upon her, with the obvious intention of increasing the likely award of damages.
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17 Thus, my view of the plaintiff's credibility is a further reason for finding that the correct version as to the occurrence of the accident and the extent of it, is that of the defendant.
18 Thus, I find that the defendant did strike the rear of the plaintiff's vehicle after the latter had stopped suddenly in Wanaping Road short of the white line before the railway crossing. The defendant applied his brakes and slid into the rear of the plaintiff's vehicle at a speed between 5 and 10 kilometres an hour with a result that the impact was minor and there was very limited damage to both vehicles. The plaintiff's car stopped at the intersection and not on the crossing itself. If it is the case that the plaintiff had some concerns as to stopping on the crossing later, claims about which I have considerable doubt, it may well be that the plaintiff has looked back on the incident and wondered what would have happened had she in fact stopped on the railway lines and the defendant run into the back of her vehicle and thereby causing both of them to stay on the crossing after the accident. Further, I confirm that I have had the advantage of seeing both the plaintiff and the defendant give their evidence. Obviously, I saw the plaintiff give evidence for a far longer period than the defendant. Notwithstanding this, the defendant impressed me as a person who was straightforward and who had a clear and firm memory of this accident. The cross-examination of him did nothing to detract from my favourable impression of him as a witness. Further, it is interesting to note that the defendant gave, he said, a full statement to the police after the accident with the details similar to those advised to me in Court. It would have been open to the plaintiff's solicitors to subpoena the police file in order to confirm, or otherwise, the giving of that statement and the contents thereof. There was no apparent attempt to challenge the suggestions by the defendant that he in fact gave a statement and that the contents of such statement were identical to the evidence he gave in Court. 19 My findings as to the circumstances of the accident and the force of the impact have, as counsel and the medical practitioners agree, a direct bearing on the sequelae, so far as the plaintiff is concerned, of the accident. Further, having made these findings as to the accident itself and the plaintiff's ability to understand and speak English, these matters are relevant to the question of assessment of damages. At this point, I would note also that it was my view that the plaintiff was intelligent and gave answers which involved an ability to understand exactly what she was being asked, and appeared to have the ability to answer questions in a straightforward way and to tailor her answers in such a way as to suit her own purposes. It is interesting to note that the same conclusion was
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reached by several of the medical practitioners who examined the plaintiff by way of review. I would also confirm that, in the course of the hearing, the plaintiff generally appeared as a person who was downcast and physically disabled, walking slowly and holding her right arm in a fixed position. There were, however, inconsistencies in this conduct when the plaintiff was asked to demonstrate certain movements and when answering certain questions, especially those to which she took some objection. Once again, similar inconsistencies were observed by some of the medical practitioners. There are some films of the plaintiff in which she does walk with her arm held in a fixed position and slowly, although in one of the films there is a clear inconsistency as to the demeanour and the suggested physical disabilities of the plaintiff. 20 In general, therefore, the plaintiff did not impress me as a witness upon whom I could rely and there were a number of bases upon which one could conclude that her credibility was doubtful. 21 I will make certain findings as to the reliability and credibility of the plaintiff's husband in due course. 22 In par 4(a) of the amended statement of claim, the plaintiff sets out the injuries said to have been received by her in the accident: "(a) (i) Significant soft tissue ligamentous strain injury to the neck and to the lower back. Following the accident defects present prior to the accident and which were asymptomatic became symptomatic. Aggravation of a pre-existing asymptomatic spondylolisthesis. (ii) Resultant referral of pain to the right upper and right lower limbs causing pain weakness and sensory changes. (iii) The resultant development of post traumatic stress disorder with a considerable amount of associated depression. (iv) The gradual onset of marked insomnia. (v) The development of major avoidance symptoms related to the accident. (vi) Continual pain and discomfort in the affected areas.
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(vii) Lumbar pain following injury to the right L4/5 and L5/S1 facet joints." 23 The treatment alleged is set out in par 4(b). This will be commented on in due course. 24 The "pain and suffering" said to have been suffered by the plaintiff are set out as follows: "(c) (i) Pain and suffering by reason of the accident. (ii) Continuous pain and suffering in the neck and lumbar spine. (iii) Sensation of pins and needles in the affected area. (iv) The Plaintiff is exquisitely tender over the right brachial plexus and nerve tension in the right upper limb as well as experiencing global reduction in sensation in the right upper limb and hand. (v) The development of severe depression and marked anxiety, inability to tolerate noise from television and radio. She has become irritable and developed anorexia. Poor concentration, insomnia and loss of libido." 25 In par 4(d), the plaintiff alleges that the "permanent residual disabilities" suffered by her are: 26 As a result of these injuries, it is said by the plaintiff that she lost the following "amenities" and "enjoyment of life":
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(iii) Continual pain and discomfort in the associated and affected areas." 27 As to these matters, the evidence should be examined in some detail. 28 The plaintiff was born in Australia but, when she was 6 months old, she was sent back to Turkey. She was at school until the age of 13 and then left school to look after her grandmother. She came back to Australia when she was 17 years of age in 1989. She had known her husband for some time and married him in 1990. After their second child was born in 1992, she worked at home for Swan Blinds doing sewing work. She earned approximately $5,000 per year, although there were no tax returns filed or group certificates received - she was obviously paid in cash. After her third child was born, she worked for Ocean Wear, once again doing sewing work and, once again, working in the region of 25 hours per week. She earned between $50 to $200 a week and was paid by cheque. Two docket books were produced (Exhibit A1 and Exhibit A2) which she said set out some of the records of the moneys earned from Ocean Wear. She, in fact, prepared a schedule from the docket books which became Exhibit B. The plaintiff was obviously able to read the docket books, interpret them and prepare a handwritten document which was then typed up by her solicitors. 29 In addition to the sewing work before the accident, the plaintiff did all the housework and some gardening. In October 1999, the plaintiff and her husband purchased a kebab shop for $21,256.22. That business was sold on 2 March 2001 for $10,098.63. After the accident, the plaintiff worked at the kebab shop for approximately three months. She said she had to stop this work because of the pain caused to her by it. She worked from 11 am to 3 pm. Her husband prepared the meats and she would heat the food and make rolls out of that and sell to customers. Ultimately, she said the business was sold because she could not assist in the business because of the pain caused by the work there. After the accident on 14 October 1999, the plaintiff immediately had neck and shoulder pain and her right leg was numb. Her neck was also swollen. She also had a very sharp pain in her back. Her right arm was so weak that she began dropping things. She immediately found that she could not do any housework. 30 For reasons which the plaintiff did not adequately explain, she waited for some three weeks to see her general practitioner, Dr Heaysman, and then another general practitioner, Dr Bovell. She was x-rayed and given analgesics and began seeing a series of specialists. She had
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injections in her lower back but they only gave her short-term relief as did a TENS machine which was given to her. She was referred to a psychiatrist, Dr Burvill, because she was having nightmares about a train coming whilst she was in the railway crossing. 31 Her evidence was that the pain she had in Court was the same as the pain she had at the time of her accident ie. there has been no improvement. She has neck pain, headaches, back pain and numbness in her right leg. She is unable to do any housework and no gardening. Her husband has been given an allowance as a carer and he does approximately four hours work around the house per day. The plaintiff tries to do some cooking and dusting, but is unable to carry this out because of the pain. The plaintiff takes between four and eight Panadeine Forte per day and three Louvox (ie. anti-depressant) tablets per day. She uses Voltaren gel to massage her neck and back. Her social life has been severely curtailed and she is unable to undertake any activities with her children. The plaintiff started driving early this year but is still concerned when she does drive. The plaintiff suffered no major illness before 1999. She had another motor vehicle accident in early-2000, but after minor pain in her left side, she had no more pain from it. 32 She was the victim of an assault in July 2000. She said that her cousin tried to kick her brother but in fact kicked her in the face. She suffered a fractured nose and some fractured teeth but no other injuries. After several months, the pain disappeared and at no time did she have any pain with her neck or back. She lodged a claim by way of criminal injuries compensation and received the sum of $14,000 in relation to that assault. 33 In cross-examination the plaintiff confirmed her various symptoms and the fact that they were continuing at the time of the trial. She demonstrated an extreme limitation of movement in Court. She agreed that notwithstanding the early symptoms which were frightening, she did not see a doctor until some five weeks after the accident. She agreed that she told Dr Bovell that she had memory problems and mentioned that "part of her brain went numb" as a result of the accident. Despite this she began work at the kebab shop and worked there for some three months after the accident. The accounts from the kebab shop (Exhibit 1) confirm that the shop was reasonably profitable in the first financial year. 34 The matter resumed again on 5 August 2003 and the plaintiff walked very slowly and carefully to the witness box with her arm held tightly at
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her side, suggesting a considerable degree of disability in a number of areas. She confirmed that when she saw Dr Lavan after the assault, she was put on anti-depressants by her. She was unable to be certain as to how long she continued to be treated by Dr Lavan after the assault case and for injuries received by her in that incident. She was cross-examined as to whether she required an interpreter to speak for her when she saw the various specialists. I was not particularly satisfied with her answers in cross-examination as to these matters and she demonstrated an ability to answer the questions with some care and intelligence. She was asked to demonstrate various movements of her neck and touching her knees. She demonstrated a considerable degree of disability in these actions. Two video films were played to the plaintiff which showed some inconsistencies as to her disabilities, particularly getting in and out of a vehicle. She was cross-examined as to these matters and, once again, her answers showed some sophistication and appreciation of the inconsistencies shown in the films. 35 The plaintiff struck me as being a person intent on convincing me that she was considerably disabled as a result of the accident and that such disability has continued until the present time. She had a better understanding of English than she was prepared to admit and displayed a degree of intelligence in answering a number of questions which suggested inconsistencies in her conduct. Her appearance in Court was quite inconsistent with the appearance of the plaintiff on the second video, albeit the latter being a short space of time. It is particularly significant that according to the plaintiff, since the accident in October 1999, some six years ago, she has had no improvement in her symptoms - in some respects this has worsened eg. her depression. This reported lack of improvement must be looked at in the light of my findings as to the accident itself, and also the circumstances of the assault upon the plaintiff. The continued symptoms alleged by the plaintiff were largely, if not wholly (as confirmed later by me) the subject of verbal complaints by the plaintiff to various medical practitioners. To a very large extent the opinions and treatment of many of the plaintiff's treating medical practitioners were based on such verbal complaints. The plaintiff did not impress me as a witness upon whom I could rely. 36 The plaintiff's husband, Cahit Altinok, confirmed the commencement of the kebab shop. It is clear that his wife's understanding of English is far better than Mr Altinok's. Her ability to understand the questions and to answer in English was far greater than Mr Altinok's. He sold the business, he said, to look after his wife. He was asked about the condition of his wife after the accident and his evidence was in
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considerable detail, the same as the plaintiff's. He confirmed that he began receiving a carer's allowance in 2001. He said that he was also being treated for depression as a result of the injuries to his wife and the effect upon him. He and the children have been affected by the plaintiff's condition and their sex and social lives have considerably been affected. I was concerned that during the cross-examination, he agreed that he had spoken English in the course of his various employments and this was inconsistent with his apparent inability to speak English in Court. He agreed that when his wife began working at the kebab shop, it was not anticipated that there would be any language difficulties with the plaintiff serving customers. He suggested that the language used in the kebab shop was different than that when one was working outside the kebab shop - I find this difficult to accept. His evidence as to his wife's ability to cut up food and otherwise was inconsistent with the complaints given to Dr Mustac as to that relevant period. He still helps his wife dress to some degree, although he does not have to shower her. 37 Mr Altinok appeared to be at some pains to substantiate what his wife said about the accident and although, at the beginning, I had the impression that his English was not as good as his wife's, I consider that he in fact, in his outside work, can speak English better than he was prepared to admit in Court. 38 Dr Geoffrey James Bovell is a general practitioner. He was the plaintiff's general practitioner before and after the motor vehicle accident. Generally, the plaintiff communicated with him in English although, sometimes, she had an interpreter with her. Obviously, the plaintiff was able to speak English to Dr Bovell on most of the consultations with her. He began treating the plaintiff with anti-anxiety medication in April 2000. It appeared that he was not treating her for depression. He diagnosed her condition and treated her for soft tissue injuries to the nerves and muscle and her neck and lower back and upper limb on the right. His reports confirm that the plaintiff complained to him of a wide range of symptoms arising out of the accident. He said that the assault caused symptoms which were temporary and mainly to her face, nose and eye and that the symptoms before and after the assault were to her neck and shoulders. He did not think there was anything unusual in the presentation to him of the plaintiff's symptoms in relation to the motor vehicle accident. The symptoms complained of by the plaintiff did not change in any way for the time he was treating her. 39 In cross-examination, Dr Bovell suggested that the plaintiff's symptoms were consistent save that he did not think there was any
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shoulder pathology to explain the plaintiff's difficulty with some movements of her arms. The first occasion which she was prescribed medication for depression was in September 2000. He made no note of any complaint by the plaintiff about nightmares while he was treating her. The plaintiff had complained that she got pins and needles if she sat or stood for more than 10 minutes but there was no neurological and anatomical basis he could find for that complaint. He also found it hard to explain why the plaintiff was in so much pain when he examined her in April 2000. This was the same in February 2001. Significantly he said that on the basis that he had diagnosed a soft tissue injury to the plaintiff, he thought that those complaints should be getting better rather than worse and was unable to offer any real explanation as to why they were worsening in April 2001. On his notes there appeared to be some inconsistency in the results of physical testing of the plaintiff. In relation to the assault, he was advised by the plaintiff that as a result of being struck, she fell backwards onto the car bonnet and lost consciousness for several minutes. She suffered from double vision as a result of that assault. After the assault Dr Bovell noted that the plaintiff's neck and shoulder and pre-existing injuries were worse. He was unaware that Dr Lavan had seen the plaintiff in November 2000 (5-1/2 months after the assault) and complained of a variety of continuing pain and symptoms in her face and was on multiple strong pain killers for those pains and for neck and back problems. 40 Dr Bovell appeared to have some reservations as to the worsening condition of the plaintiff whilst at the same time, apparently never questioning what were largely subjective findings. 41 Mr Nicholas Anastas was called on behalf of the defendant. Two reports were tendered in evidence - 30 May 2000 (Exhibit 5A) and 3 July 2000 (Exhibit 5B). He felt that most of the information from the plaintiff came through an interpreter who attended with the plaintiff. In his report of 30 May 2000, Mr Anastas found some inconsistencies of lumbar spine movements and other findings suggested that the plaintiff's incapacity was not as great as given on the history. He found that the plaintiff had suffered some degree of soft tissue injury to her cervical spine and lumbosacral spine. He felt that any disability would improve with further time and that she would not have a permanent disability. He was rather pessimistic as to the plaintiff's likely improvement. His opinion was confirmed in his report of 3 July 2000. Mr Anastas confirmed his various opinions in his evidence-in-chief. He confirmed that his description of the plaintiff being "reasonably incapacitated" was as a result of "the way she came across". He would not have been able to
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support an incapacity of 55 per cent of the total body as related to the motor vehicle accident. His opinions and conclusions were not altered during the cross-examination nor, I find, the general effect of his evidence. He did not feel that any of the x-rays or other diagnostic tests affected his opinion. Mr Anastas clearly had reservations as to the extent of the plaintiff's injuries. 42 Dr Andrew Craig Harper is an occupational physician. His reports, 29 May 2001 (Exhibit H1) and 16 June 2003 (Exhibit H2) were admitted into evidence. In his report of 29 May 2001, Dr Harper sets out the plaintiff's history and complaints (reflecting what she said in Court) save that she said that her vehicle was pushed approximately 5 metres onto railway tracks - this is contrary to the effect of the plaintiff's evidence. Dr Harper found that the plaintiff had sustained a strain issue to her cervical spine resulting in cervical brachial pain in the whole arm. Her low back sprain had rendered symptomatic of pre-existing spondylolisthesis. The plaintiff had developed a post-traumatic stress disorder with depression and was incapacitated for further employment. He found that her various disabilities equated to a whole body disability of 55 per cent and required ongoing psychiatric care. Contrary to the view of a number of the specialists, he told me in evidence that he did not observe any inconsistencies in the plaintiff's presentation of symptoms. He was referred to reports of practitioners, particularly Mr Stewart Brash and Dr Peter Silbert, who referred to the Waddell signs and their significant examination of the plaintiff. His view was that the Waddell signs were exclusively developed in an effort to select people for surgical intervention and could not, in effect, be relied upon for the testing of the genuineness of patient symptoms on examination in relation to matters such as these. His report of 16 June 2003 set out similar findings to the earlier reports save that site fluxion and rotation were within normal limits, contrary to the appearance of the plaintiff in Court. He felt that there was some improvement in the plaintiff but that she remained totally incapacitated for gainful employment and was partially incapacitated for home duties but was independent in her own personal care. I found these views to be rather inconsistent. The plaintiff was said to have a residual disability of moderate severity and that this was stable. He felt, in evidence, that the plaintiff's disability would continue but that her position was complicated by her post-traumatic stress disorder. He felt that he would not expect a significant improvement within a further two years. It should be noted that on the plaintiff's evidence before me, her symptoms had in fact got worse rather than the improving symptoms suggested by Dr Harper.
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43 In cross-examination, Dr Harper effectively agreed that there were no neurological or anatomical reasons for most of the plaintiff's symptoms. He objected to the use of the word non-anatomical symptoms and suggested that there may be pain caused by ongoing physiological changes in the nervous system and that these were matters being considered by a pain specialist. He was asked whether there was any muscle wasting in her limbs and confirmed that he could not find any including her right arm. He did not look for any Waddell signs, nor did he use some standard orthopaedic tests to see whether there were inconsistencies in the plaintiff's symptoms. He said that there was nothing extraordinary about a situation where, like the plaintiff, a person had various symptoms which were persisting. Without clear physical signs, on the basis of the lack of any other objective signs, he agreed that his opinions were based largely upon what the plaintiff told him. This, in my view, weakened the effect of any evidence he gave favourable to the plaintiff.
44 Dr Harper, when he gave his opinions, did so on the basis that he had not been advised of the assault upon the plaintiff in June 2000. He agreed that that assault and the way in which it occurred, had the potential to cause symptoms in its own right which would be significant and could cause neck injuries, headaches and eye pain. He said that one of the basis upon which he felt that the plaintiff had the traumatic stress disorder was that the plaintiff had flashbacks and that they were indeed important symptoms. He was not aware that Dr Burvill found that there was no history of flashbacks with the plaintiff. He concluded that there was nothing changed in the plaintiff physically although she was adapting better to her condition. 45 Dr Peter Woodland is an orthopaedic surgeon who prepared two medical reports - 18 October 2000 (Exhibit J1) and 24 March 2003 (Exhibit J2). The plaintiff was referred to him to see whether she was a surgical candidate. When he examined the plaintiff in October 2000, having heard the plaintiff's complaints he found that the plaintiff had a full range of upper limb movement with complaints of right neck and shoulder pain on elevating her right arm. He could find no neurological explanation for the plaintiff's symptoms. He felt that the plaintiff would be best managed conservatively and felt that the plaintiff may have had a soft tissue injury caused by "whiplash" and in relation to her lumbar spine, "based on information presented" to him, there was a pre-existing L5/S1 spondylolisthesis with pars defects which had been rendered symptomatic by the accident. He felt that the plaintiff's symptoms should improve and that there was no reason why she should be very badly
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disabled in the long term. Because it was almost 12 months after the accident, he would not have thought that the symptoms would dramatically improve in the near future, however both symptoms would take 18 months to two years to stabilise. After seeing her in March 2003 Dr Woodland's opinion remained the same. There was some evidence in the course of his examination in March 2003 of "give way" weakness which might suggest that the plaintiff was voluntarily avoiding demonstration of genuine symptoms. He found it rather difficult to answer the plaintiff's counsel's question as to whether he was of the opinion that the plaintiff was malingering (see T141 - T142). 46 In cross-examination, Dr Woodland confirmed that he did find some inconsistency in some of his tests on the plaintiff and, in particular, could not find any reason why the plaintiff would hold her arm in a fixed position. There were no definite muscular joint or neurological reasons for the plaintiff to do so. He could not convince himself that the plaintiff had any definite neurological weakness in either of her upper limbs or lower limbs. The tests that have been done on the plaintiff, he said, have not demonstrated any reason why the plaintiff should have any symptoms in her right leg and left and right arms. Notwithstanding this, he did not doubt that the plaintiff had symptoms in her neck and lower back and particularly her lower back because she had abnormalities shown on x-ray. The latter view was supplemented by Dr Woodland's opinion that the various scans had not shown any evidence of nerve impingement so that it was hard to explain why the plaintiff would be getting significant leg symptoms. Dr Woodland confirmed that the plaintiff had not advised him of the assault upon her. He said that, among things, his views were based on the fact that the plaintiff had told him that the car was shunted 6 metres and that, therefore, a significant force was involved in the accident. Dr Woodland's evidence was of minimal assistance to the plaintiff's case and supported the various contentions relied on by the defendant. 47 Dr John Francis O'Mahony is a general practitioner and first saw the plaintiff on 26 October 2000. He has seen her between four to six weeks since that time. She has always complained of neck and right arm pain, right lower back pain and some symptoms consistent with depression, there having been some fluctuations in her symptoms but, overall, there has been no significant change. 48 In cross-examination, Dr O'Mahony confirmed that at all times that he was treating the plaintiff, he was not advised of the assault, the injuries received by her, or of the fact that she had been treated by specialists. It is
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difficult to understand that if Dr O'Mahony was seeing the plaintiff every four to six weeks and the effects of the assault upon her continued for a number of months, the plaintiff did not advise him of the assault and of the interaction of symptoms of that with any other symptoms she had for the motor vehicle accident. 49 Dr Clive Heaysman is a general practitioner. He saw the plaintiff shortly after the accident on 19 November 1999 and prepared a report of 20 December 1999 (Exhibit L). He also prepared a letter of 1 August 2003 which sets out details of some clinical notes made when he saw the plaintiff on that occasion and two other occasions in 1999 (Exhibit M). The symptoms mentioned by the plaintiff to him are consistent with the evidence given by her in Court. Dr Heaysman, in cross-examination, said he thought that in the early stages there were some neurological involvement in the plaintiff's cervical and sciatic areas and that this was the only way he could explain the plaintiff's problems. This view is clearly at odds with those of the relevant specialists. 50 Dr Peter Walter Burvill is a consulting psychiatrist. He first saw the plaintiff on 16 January 2001 and last saw her on 1 July 2003. A number of reports from Dr Burvill were tendered into evidence (Exhibit M1 to Exhibit M11). Having seen the plaintiff in January 2001, Dr Burvill felt that the plaintiff displayed symptoms of post-traumatic stress disorder and depression as a result of the accident. He also prescribed an anti-depressant for the plaintiff's husband. He was of the view that when he saw the plaintiff her command of English was very poor and the plaintiff was accompanied by an interpreter on most occasions. It is significant that the plaintiff apparently told Dr Burvill that she was an important contributor with the business and helped with the preparation of the food during the day - this is in contrast to the plaintiff's evidence and previous information to other medical practitioners. Although the plaintiff had told Dr Burvill that she did not have flashbacks on earlier occasions, she apparently told him this in the middle of 2001. Dr Burvill continued to treat the plaintiff every four weeks for what he described as "major depressive illness". Dr Burvill disagreed with Dr Mustac giving the plaintiff a "Tomm test" and said that this was given by Dr Mustac in a "grossly inappropriate manner". It was a neuropsychological test to assess possible memory malingering in people with head injuries and subsequent alleged cognitive impairment and was not a test to ascertain whether someone was malingering with symptoms of chronic pain due to any physical disability. Dr Burvill mentioned that the plaintiff had told him that she had been apparently followed by people acting on behalf of the insurer, smashing eggs on her front drive and
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shining lights in her face. This complaint was, in my view, unusual and an example of the plaintiff attempting to advance her claim for damages. Dr Burvill, in his report of 25 March 2003 (Exhibit N10), sets out detailed reasons as to why he disagreed with Dr McCarthy's view of the plaintiff's disability, in particular, any psychiatric difficulties. In evidence, Dr Burvill said that the plaintiff would continue to be depressed so long as her physical injuries produced symptoms of pain etc. and that her post-traumatic stress disorder symptoms were, to a degree, under control and he expected that to continue for another two to three years with treatment. 51 In cross-examination, Dr Burvill confirmed that nearly all the questions put to the plaintiff were dealt with through an interpreter. Dr Burvill was cross-examined as to notes he made as to the accident itself and what he had been advised by the plaintiff. Dr Burvill's reports, evidence and notes as to what he was apparently advised by the plaintiff were rather confusing. The same can be said of the notations as to the work the plaintiff did in the business. There was similar confusion, apparently on the part of Dr Burvill as to the plaintiff's complaints of flashbacks. He agreed that the Tomm test was a test for malingering in certain circumstances, but did not agree with its use in this case. He also disagreed with Dr Mustac's diagnosis of the plaintiff and felt that the circumstances of the accident as reported to him were very important, particularly as far as post-traumatic stress disorder was concerned. It is the case that in the light of the cross-examination, Dr Burvill's opinions almost wholly rest on the acceptance of the plaintiff's version of the accident. Until several days before the hearing Dr Burvill was unaware of the assault upon the plaintiff and its consequences to her. It was his view that even if the plaintiff did not have underlying physical problems, it would not change his diagnosis that she had post-traumatic stress disorder and depression and that there may be a different cause for those conditions. He was unable to comment on the effect of the assault in June 2001. 52 Dr Burvill's evidence and opinions were of limited value to the plaintiff's case. He accepted the plaintiff's complaints apparently without question. He did not consider sufficiently the possibility of other reasons for the plaintiff's alleged problems. His general method of diagnosis and evidence in Court were, in my view, not particularly convincing. I prefer the opinions of Dr Mustac and Dr McCarthy to those of Dr Burvill. 53 Dr John Gregory Hayes is a consultant rheumatologist. He saw the plaintiff in February 2000 and then on a number of occasions until
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August 2003. His reports were admitted into evidence (Exhibit O1 to Exhibit O11). In fact, he saw the plaintiff in August 2003 and his final report is that of 1 August 2003 (Exhibit O11). He diagnosed the plaintiff as suffering from a cervical strain injury which was an aggravation of a pre-existing spondylolisthesis. He is of the view that the cervical strain injury had developed into a complex regional pain syndrome. This, he said, involved referred pain radiating into the upper limb and was due to the irritation of neural tissue on the particular side of the neck that was affected. He said the theory was that the nerves may have been stretched or affected in some way and the nerves became sensitised, which then becomes painful along the whole length of the nerve, causing what he described as "complex regional pain syndrome Type 1". His diagnosis of the aggravation of the pre-existing spondylolisthesis was based on the plaintiff's information to him as to the pre-accident condition and the accident itself. There was some confirmation in the CAT Scan which showed some mild increase in activity in the right L5/S1 facet joint. This, he said, was of some but not major significance. He did not note anything untoward in the plaintiff's presentation of her symptoms and confirmed that the important feature with the plaintiff was that she said she was tender on one side of the neck only and that was the side from which the pain radiated. He felt that the plaintiff would take some five to seven years to recover from the symptoms. He agreed that there was no problem with the compression of a specific nerve root, but felt there were signs of nerve root irritation. This is contrary to the majority of other medical opinions on this aspect. 54 In cross-examination he confirmed that he did test for any inconsistencies in the plaintiff's straight leg raising but could not find any. He found also nothing amiss with the right lower limb of the plaintiff. In effect, he agreed that his diagnosis was based on what the plaintiff told him in the course of his examination of her. The same information was used to arrive at his conclusion that there was cervical nerve root irritation. He tested the plaintiff's power and felt also there was some altered temperature and colour sensation in the hands, but denied that this was to do with the fact that she was not using her hands. He was unable to find, in a general sense, any objective evidence to support the plaintiff's symptoms. It was his view that it did not matter what speed the car was going because some people had significant neck injuries from rear end accidents at low speed. He relied upon some research by Professor McNab, an expert upon whom Mr Brash (called by the defendant) relied and studied with. It was his view that when someone had a pain syndrome in an arm, for example, there was little that could be
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done to relieve the problem. He was not advised by the plaintiff of the assault upon her. When advised of the general nature of the assault, he felt that this would have a significant potential to cause trauma. 55 Dr Hayes found little in the nature of clinical signs to satisfy his opinions - relying largely on the plaintiff's information to him. I am unable to accept his view that the plaintiff would take some five to seven years to recover from the symptoms. In my view Dr Hayes has not been prepared to consider the possibility that the plaintiff's complaints are, at the least, exaggerated. 56 On behalf of the plaintiff, reports from Dr Tom Berrigan, pain specialist, were admitted into evidence by consent (Exhibit Q1 to Exhibit Q7). He saw the plaintiff on 14 February 2000 and felt that her main problem appeared to be low back pain coming from the right L5/S1 facet joints. He performed a facet block but the plaintiff, when she returned, complained of increased pain. He gave her a TENS machine which the plaintiff said was helpful for her pain. In December 2000 he gave the plaintiff more facet joint injections which the plaintiff said gave her considerable relief. Unfortunately, in 2 March 2001, the numbness in her leg was better but the pain was worse. Significantly, he suggested that the plaintiff should finalise her case and try and get on with life and do some daily exercise such as swimming or water aerobics. 57 A report of Dr John Venerys (Exhibit R) dated 27 July 2000 was tendered into evidence pursuant to the provisions of s 79C of the Evidence Act. He saw the plaintiff on 24 July 2000 at the request of the plaintiff's solicitor. The plaintiff was, he found, unable to communicate in any great detail in English and an interpreter was used. He felt, after examining the plaintiff, that she had sustained a significant soft tissue ligamentous strain injury to the neck and to the lower back. The lower back injury was due to a significant spondylolisthesis which became symptomatic after the accident. Although the plaintiff, he thought, would find it difficult competing in the open labour market, he felt she might be able to cope with four hours work a day, five days a week in a shop such as the kebab shop. 58 The defendant called Dr Michael Bowles who is an occupational physician. He saw the plaintiff on 16 July 2003 and provided a medical report (Exhibit 7). 59 Dr Bowles confirmed that the plaintiff had told him that her car was moved onto the tracks by the accident. The plaintiff advised Dr Bowles
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that she does not visit friends anymore. This should be compared with her comments to other medical practitioners. Significantly, the plaintiff reported that she had put on weight since the motor vehicle accident - this is commented on by several of the other medical practitioners. Generally the complaints made to Dr Bowles were similar to those made to other doctors and in Court. 60 According to Dr Bowles, when the plaintiff arrived for the consultation, she exited the car in a free and unrestrained fashion but then began walking slowly and held her right arm in a "favoured position". The plaintiff was unable to converse in English at all - contrary to her obvious position in Court. The plaintiff showed almost extreme limitations on movement of her cervical spine, once again contrary to her demonstration in Court. The same applied to certain shoulder movements. Also, this was contrary to Dr Venerys' findings. Contrary to Dr Hayes' findings, Dr Bowles found no evidence of sympathic dystrophy (or "regional pain syndrome"). Dr Bowles was dismissive of Dr Hayes' use of this term - the plaintiff displayed inconsistencies, which suggested no basis for findings, which could be described as a "regional pain syndrome" according to Dr Bowles. Dr Bowles also found no importance to be attributed to the spondylolisthesis of L5/S1 - his explanation at page 215 of the transcript was logical and, in my view, acceptable. He was of the opinion that the plaintiff's reported ongoing symptoms were not compatible with the normal and expected course of recovery of motor vehicle accidents of the type suffered by the plaintiff. 61 Dr Bowles relied on "Waddell signs" to conclude that the plaintiff's neck complaints and numbness in her arm were non-organic. His explanation of the origin and use of Waddell signs was, in my view, quite persuasive. His conclusion was that the plaintiff had an unjustified conviction of invalidity and disability, enforced by an apparent solicitous attitude from her husband. His conclusion as to this was in these terms when asked what was his general impression of the plaintiff: "That she probably has some mild neck and backache from time to time, which I think is a consequence of the normal nuances of day-to-day life, but it has been moulded and represented for a number of issues which I have outlined there, I think, probably most powerfully, the system that we are here today to look at, to continue to represent these issues as a significant disabling chronic problem for her. I think that, from a medical perspective, it doesn't really fit without knowledge that the injuries sustained that long ago and the nature of the injuries
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presumed in the motor vehicle accident could lead to the presentation that was represented to me when I saw her." 62 Dr Bowles had doubts as to the plaintiff's veracity and he was highly sceptical of the level of disability alleged by the plaintiff, her ongoing complaints in his view could not be related to the motor vehicle accident. 63 Dr Bowles was cross-examined as to the Waddell signs and his reliance on them. The cross-examination did not affect my view of his evidence. Dr Bowles said that although he did not think the plaintiff was malingering or that she did not have pain or discomfort, his view was that any ongoing symptoms were not attributable to the motor vehicle accident. Dr Bowles was unable, if the plaintiff was continuing to suffer pain and disabilities (that, he said, being a subjective matter) to base that on any medical findings. The plaintiff's complaints of pain, if they existed, were, in Dr Bowles' view, in the plaintiff's head. The plaintiff was, because of non-medical influences, seeking to prove to Dr Bowles (and other medical practitioners) "how bad she is" (T231). 64 Dr Bowles struck me as a very logical and reliable witness, notwithstanding that he has only seen the plaintiff on one occasion. His evidence was obviously based on examination and the consideration of the history and other medical reports and findings. 65 Dr Zelko Mustac is a consultant psychiatrist. He saw the plaintiff on 3 December 2001 and 30 June 2003. He issued three reports (Exhibit 8A to Exhibit 8C). 66 Arising out of his reports and evidence are a number of matters of relevance: 1. There were inconsistencies in the use of the plaintiff's arm. 2. Both the plaintiff and her husband have provided information in English. 3. There was an ability to give a detailed history despite complaints of considerable memory difficulties. 4. The plaintiff does have social contact with people regularly. 5. The husband's exaggerated involvement in the interview. 6. The inconsistencies he found between some activities and attitudes of the plaintiff and the suggested psychiatric illness.
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7. The absence of gross muscle wasting which he said was quite inconsistent with that to be expected from a disability as bad as suggested by the plaintiff. 67 Dr Mustac explained his view of the Tomm testing. His explanation as to its basis and results in relation to the plaintiff (T237 - T238) was such that it was clear, in my view, that it was one of the tests that could be used to determine whether a patient was deliberately attempting to downplay their mental abilities. The cross-examination on this point did not affect this view. The conclusion of Dr Mustac, using the Tomm test and on other bases, was that the plaintiff was "exaggerating" and "feigning" her degree of mental incapacity. Dr Mustac expanded on his view that there was no evidence that the plaintiff had mental illness at page 238 of the transcript. The matters set out therein provide a strong basis for the acceptance of Dr Mustac's view. It is interesting that he found the plaintiff to be "very quick witted and had a good memory". 68 The cross-examination of Dr Mustac did not affect my view of his evidence. Further, the plaintiff's presentation at the review by Dr Mustac on 9 July 2003 and Dr Mustac's comments thereon in his evidence confirms my acceptance of his opinions. 69 It is also relevant to note that Dr Mustac opined in cross-examination that the plaintiff struck him as being a "very resourceful individual, in fact, a self-opinionated and confident lady, but with limited education". This is an impression that accords very much with my impression of the plaintiff. He generally agreed with Dr McCarthy's opinion as to the plaintiff and in particular those matters set out on page 249 of the transcript. He was in agreement with Dr McCarthy's view that the plaintiff was not disabled as the result of any illness, and that any illness did not prevent her from returning to work. As to any differences between the psychiatrists, he had this to say (T250): "Dr McCarthy gives her the benefit of the doubt and says that he thinks she did suffer from some depressive illness at some time in the past, but like me believes that that's not relevant in her presentation. So what I'm saying is that there's not three psychiatrists with three different opinions. There's two psychiatrists on one side who say that her invalidity is a personal choice, a lifestyle choice by her and there's a psychiatrist on the other side who's the treating psychiatrist, who by the way has an ethical obligation to the patient, who is obliged to his patient to further her interests who says that she's terribly depressed and Dr Burvill would well know that under
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the ethical guidelines as a treating psychiatrist he shouldn't be getting involved in a medico-legal process because he's not in a position to be objective." 70 Having considered the balance of the cross-examination of Dr Mustac, little of it adversely affected Dr Mustac's opinion of the plaintiff in my view. Finally, he thought it was significant that both the plaintiff and her husband were being treated for depression should be noted. He said (T256): "To say that you've got two people suffering from depression and then to say that despite having specialist treatment over a period of years there is no improvement and yet they still have a mutually supportive and sustaining relationship where their children are doing well and so on, it defies credibility." 71 Dr Peter McCarthy is a consultant psychiatrist and saw the plaintiff on 10 September 2002. His reports are Exhibit 9A and Exhibit 9B. When he saw the plaintiff, Dr McCarthy took a detailed family and employment history from the plaintiff and it should be noted that the plaintiff told Dr McCarthy that she had enough English to do her own shopping, engage in everyday conversation and to run the kebab shop. This is inconsistent with some of her evidence generally and her presentation to other medical practitioners. It is also interesting that notwithstanding this, the plaintiff only spoke to Dr McCarthy through an interpreter. Generally, the history given was the same as that to other medical practitioners and in Court. Dr McCarthy reviewed previous medical reports and history in considerable detail in his reports. Dr McCarthy's opinion was that the plaintiff was suffering from a major depressive disorder of moderate severity in partial remission. Also, she may have suffered a chronic post-traumatic stress disorder but this appeared to have substantially settled. Dr McCarthy was very critical of the plaintiff's veracity, describing her presentation as characterised by evasiveness, inconsistencies and changing her story "for her own purposes". There was no reason on psychiatric grounds, according to Dr McCarthy, why the plaintiff could not return to work; her unemployment was not a result of any psychiatric or psychological difficulties, but her lack of motivation to return to work. 72 Dr McCarthy's second report (Exhibit 9B) represents a refutation of certain strong criticisms of him made by Dr Burvill in his report of 25 March 2003 (Exhibit N10). Dr McCarthy was of the view that the plaintiff had considerable ethnic, social and family stresses which far
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outweighed the effects of any objective physical injury which could have resulted from the motor vehicle accident, as a possible cause of any psychological or psychiatric condition. Dr McCarthy found the plaintiff (as did Dr Mustac) intelligent and with a sharp tongue. Importantly, Dr McCarthy has had a very long experience dealing with post-traumatic stress syndrome. He is the consultant psychiatrist to the general surgeon of the Australian Defence Forces and he has seen, he said, several hundred people with post-traumatic stress disorder in the past 10 years, not only from the military situation but from work related accidents as well. He said there was no evidence of such syndrome so far as the plaintiff was concerned when he saw her. On the basis of his examination, experience and his reviews of other information, I accept his opinion in this regard; it is well-based and logical. Dr McCarthy was of the view that the assault by a family member was far more relevant to any condition from which the plaintiff may be suffering than the motor vehicle accident. Such a condition, in his view, if in fact the plaintiff was suffering from it, could arise from a number of causes including the assault. It was his view also that the depression arose more in 2000 ie. after the assault, than as a result of a motor vehicle accident. He stated that the Tomm test was not used a great deal in Australia, however they can have limited use in determining a person's veracity. 73 Mr Stewart Brash is an orthopaedic surgeon who is now retired. He saw the plaintiff on two occasions and issued reports of 6 November 2001 (Exhibit 10A) and 12 June 2003 (Exhibit 10B). Mr Brash had in the course of his training worked for 11 years under Professor McNab in Canada; Mr Brash has had, in his course of his career, a particular interest in the presentation of pain insofar as it relates to injuries involved in motor vehicle accidents and their sequelae. 74 After seeing the plaintiff on 1 November 2001 and examining her in detail Mr Brash was of the view that, at the most, the plaintiff would have suffered a Grade 1/2 whiplash associated disorder ("1" being lowest on the scale). He was unable to observe any underlying pathology to account for the plaintiff's very wide spread (right side of body) constant and increasing pain. He could see no objective evidence of pathology that he could relate to the accident. He concluded that there was no physical cause for the plaintiff's pain. He set out the reasons for that opinion on page 4 of his report of 6 November 2001 (Exhibit 10A). He believed that there were strong psychosocial factors in the plaintiff's presentation and that there was an abnormal illness behaviour, aided and abetted by the plaintiff's husband and possibly other family members. Mr Brash was of the view that from an orthopaedic point of view the plaintiff was
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completely fit for the full activities of daily living without restriction. He was of the view that the expression "cervico-brachial regional pain syndrome" was descriptive and there was no objective evidence for it. He said the bases upon which this description and its use have been discredited. As to the expression "reflex sympathic dystrophy" he said that this was a definite clinical entity, however none of the relevant signs were present in the plaintiff. He therefore did not believe that she had reflex sympathic dystrophy. In his second report of 12 June 2003 (Exhibit 10) his view did not change from his earlier report. He confirmed that the "Waddell tests" were in fact originally know has the "McNab tests" and prior to that they were known as the "Toronto Tests". He agreed that there could be underlying pathology which could not be ascertained by the use of the "Waddell tests". In other words there could be functional non-organic psychogenic component or amplification of organic pathology. He believed that there were psychological, sociological and compensation factors in the plaintiff's presentation but he was not able make a diagnosis as to what they may be. As to the Bone Scan on 17 July 2000 he said that if there had been bone damage shown at the time of the accident that would have healed within six to eight weeks. 75 Dr Peter Linton Silbert is a neurologist. He saw the plaintiff on two occasions and his reports of 24 June 2002 and 14 July 2003 became Exhibit 11A and Exhibit 11B respectively. In his first report (Exhibit 11A) he confirmed having read the majority of medical reports available and took a detailed history from the plaintiff. He was of the view that there was no evidence that the plaintiff had naturopathic pain syndrome and that any low back pain was primarily muscular as would be the plaintiff's cervical symptomatology. He said that the difficulty in assessing the plaintiff was that there were so many non-organic findings on clinical examination and so many unusual aspects in the plaintiff's history that it was difficult to be definite regarding symptomatology. It was also his view that the trauma potential of the motor vehicle accident was critical. He opined that if the plaintiff had some cervical lumbar muscular symptoms, from the physical point of view, these were minor. Dr Silbert was of this view: "The perceived disability from the patient's and her husband's point of view is far greater, however in the presence of embellishment of the clinical examination findings, and considering the non-medical and psychological factors in this case, the veracity of her symptoms and history are significantly in question."
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76 He was of the view that the plaintiff had adopted a sick role from the physical point of view, which would perpetuate her symptomatology whilst non-medical factors (medico-legal factors) were active. For those reasons it was his view that her disability was mainly subjective without an underlying physical basis and that after the non-medical resolution factors and the treatment of any underlying depression he would expect an improvement of her physical symptoms. On the whole the plaintiff, he said, retained a work capacity as a part-time seamstress or working in a kebab shop and she has done that since the motor vehicle accident. Assuming, he said, that there was a sufficient trauma in the accident to cause some physical symptomatology, then the plaintiff's lumbar muscular and cervical symptomatology would not confer a permanent disability of more than 5 per cent each.
77 Dr Silbert reviewed the plaintiff on 14 July 2003 and his opinions remained the same. Importantly, in his second report (Exhibit 11B) he said, "Although she has the appearance of relative inactivity of the right upper extremity, at times during the consultation she moved entirely normally and it was my impression that she was trying to convey to me the impression that she could not use the right arm." It was also Dr Silbert's impression at the time of consultation that most of the apparent disability was subjective and that the level of disability was enhanced for the purposes of the consultation. Dr Silbert expanded on these views in his examination-in-chief. His views confirmed these various opinions contained in his reports and the reasons therefore. 78 He was of the view that if the defendant's motor vehicle had struck the plaintiff's vehicle at between 5 and 10 kilometres an hour the trauma potential of the assault injury was far greater than that of the motor vehicle accident. It was important to note, he said, that the plaintiff lost consciousness from the punch. That involves a significant impact, with the brain suffering trauma; further he said the fracturing of the plaintiff's right cheekbone would have involved an "enormous" amount of trauma. The injury from the assault in this case, he said, was even more significant because of the fact that on the CT scan there was surgical emphysema. Finally, in his examination-in-chief, Dr Silbert enunciated his reasons for disagreeing with any diagnosis of a complex regional pain syndrome and said that the plaintiff had no evidence of the necessary symptoms to establish such a diagnosis. He agreed in cross-examination that the plaintiff has had some muscular symptomatology although it was his view that it was difficult to explain such symptoms in the plaintiff; there may have been non-medical factors leading to it. He did not agree the
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whiplash style injury as opposed to an assault involved different mechanics - they both involved a whiplash type of flexion and extension. 79 Finally, the report of Professor Peter Hollingworth of 25 October 2001 (Exhibit 12) was admitted into evidence pursuant to the provisions of the Evidence Act. He saw the plaintiff on 18 October 2001 and his report contains a very detailed history from the plaintiff and detailed examination of her. He clearly had some reservation as to the plaintiff's stated inability to speak English. Also there were inconsistencies in the plaintiff's use of her allegedly disabled limbs in the course of the examination. He was of the view that "there are so many inconsistencies with this lady that I find her creditability in some doubt". These are set out in par (c) on page 20 of the defendant's book of medical reports. He felt that the plaintiff needed psychiatric help but, unfortunately she seemed "to have become fairly well entrenched in the sick role, on the fact that she now has a husband who is on a pension and she, herself, on compensation, and I think the prognosis for an early return to her normal life, for either of them, is poor". 80 This review of the medical evidence is significant for a number of reasons: 1. There is a wide divergence of opinion of the medical practitioners as to the plaintiff's veracity. 2. There is a similar divergence of view as to whether the plaintiff has symptoms at all, either physical or mental. 3. There is a similar divergence of views as to whether any symptoms of which the plaintiff may be suffering are related to the motor vehicle accident, the assault, or both. 4. In such divergence there were areas in which the medical practitioners agreed with some aspects favourable to the plaintiff and also some disagreement in other areas. 5. The medical practitioners involved some who had seen the plaintiff on a number of occasions and some who saw the plaintiff on a limited number of occasions. Many of them had long experience in their fields with experience directly relevant to the plaintiff's alleged symptoms. 81 The resolution of these varying views and conclusions to be drawn from them must be considered on their accepted basis that it is upon the plaintiff to satisfy me on the balance of probabilities as to the genuineness of her symptoms, their sequelae and their relationship to the motor vehicle
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accident. The defendant, having raised the assault as an issue, has thereby an evidentiary burden as to significance and effect of such assault. In the end, a consideration of the whole of the evidence enables a conclusion as to the plaintiff's case as to their symptoms and their sequelae can be readily drawn in my view. In drawing such conclusions, obviously my views as to the plaintiff's demeanour, veracity and reliability are relevant. The same applies to her husband. Many of my views in this regard have been supported by medical practitioners experienced in the examination and assessment of people in the plaintiff's position and involving a motor vehicle damages claim. 82 The plaintiff, in my view: 1. Lacked credibility and was generally an unreliable witness. 2. Was intent on minimising her ability to speak and understand English. 3. Was intent, towards the medical practitioners and in Court, to act and give answers designed to promote her case. 4. Was intelligent, "sharp" and able to give answers consistent with (3), not withstanding her language limitation. 5. Was not prepared to acknowledge or accept that there may be other causes of any symptoms from which she genuinely suffers. 83 The plaintiff's husband: 1. Was intent on promoting his wife's claim for damages. 2. Was prepared, as a result, to exaggerate the plaintiff's symptoms and to rationalise and enforce his suggested need to care for the plaintiff. The continued payment to the plaintiff's husband of a carer's allowance is not justified in my view, and thus a cause for concern. 3. Was not a reliable witness. 84 The unavoidable conclusion from the medical evidence is that there is little clinical and/or pathological evidence to support the plaintiff's continued claimed physical symptoms. In arriving at their various diagnoses, both as to the physical and psychiatric matters, the medical practitioners have relied upon the plaintiff and her husband and their subjective accounts. 85 I now turn to the matters complained of by the plaintiff in the statement of claim at par 4(a).
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86 The plaintiff, I accept, had a soft tissue ligamentous strain to her neck and to the lower back. It cannot be described as being "significant". Bearing in mind the findings I have made as to the force of the impact of the two vehicles involved I favour the conclusions of those medical practitioners who are of the view that there was a minor to moderate whiplash injury to the plaintiff's neck. It is doubtful that the plaintiff in my view suffered a lower back strain in the motor vehicle accident. I am not satisfied from the evidence that there was aggravation of a pre-existing symptomatic spondylolisthesis. In this regard I prefer the evidence of Dr Woodland and confirm that the radiological results in my view, from time to time do not support the allegations made by the plaintiff in this regard.
87 Further, if there was a soft tissue injury to the plaintiff's neck and in particular in the motor vehicle accident, this, in my view would have largely recovered by the time of the assault and it is clear that the assault was of such a nature as to be likely and probably did cause injury to the plaintiff's neck. The evidence of Dr Silbert in my view is to be preferred in relation to this matter. 88 There would have been some referral of pain to the plaintiff's right upper limbs as a result of the injury to the plaintiff's cervical spine, however there is little, if any, support for the allegation that there was a referral to the right lower limbs or that it caused pain, weakness and sensory changes. 89 There may have been a brief period in which the plaintiff suffered post-traumatic stress disorder, however the evidence of Dr McCarthy is particularly relevant in the matter in view of his long experience in this area. I consider if there was any post-traumatic stress disorder suffered by the plaintiff as a result of the accident then this was very short-lived. There may have been influences which acted upon the plaintiff by way of her ethnic origins and possible family situation which caused the plaintiff to have continued symptoms which may have been similar to those of post-traumatic stress disorder, however they are not related to the motor vehicle accident in my opinion. |