Barford v Bini - [2009] WADC 152

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BARFORD -v- BINI [2009] WADC 152

CORAM: KEEN DCJ

HEARD: 18, 19 & 20 AUGUST 2009

DELIVERED : 6 OCTOBER 2009

FILE NO/S: CIV 1831 of 2008

BETWEEN: MARK HERBERT BARFORD
Plaintiff
AND
BRUNO BINI
Defendant

Catchwords:

Negligence - Personal injury - Causation - Evidence - Jones v Dunkel

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Claim dismissed

Representation:

Counsel:

Plaintiff: Mr T Offer
Defendant: Mr P Jarman

Solicitors:

Plaintiff: Macdonald Rudder
Defendant: Jarman McKenna

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

Graham v Baker (1961) 106 CLR 340
Jones v Dunkel (1951) 101 CLR 298
Jongen v CSR Ltd (1992) Aust Tort Reports 81‑192
Ross v Insurance Commission of WA [2009] WASCA 91

KEEN DCJ: The plaintiff who was born on 2 October 1983 claims damages for personal injury and loss arising out of a motor vehicle accident which occurred on 3 August 2002.
On that day at approximately 2.00 am the plaintiff was a passenger in the centre rear seat of a Hyundai Lantra motor vehicle. He was secured in that position by way of a lap seatbelt only. Apart from the driver, there were three other passengers in the motor vehicle.
The motor vehicle was travelling in Cockburn Road, Spearwood at approximately 80 kilometres per hour. It came over the crest of a hill and the plaintiff saw a truck stationary on and across the road. He recalled the motor vehicle skidding and slowing down by perhaps 20 kilometres per hour before striking the tray of the truck. The bonnet of the car went under the truck.
Liability for the accident is not in dispute. The dispute in this case involves the nature and level of injuries said to be sustained by the plaintiff. As it was expressed by counsel for the plaintiff in opening, the central issue is whether the plaintiff sustained an injury in particular to his neck and upper back as a result of this accident. It was acknowledged at the outset that the plaintiff's credibility was central to the case.
In the plaintiff's statement of claim he sets out his injuries as including:
(a)severe abdominal bruising;
(b)significant soft tissue musculo-ligamentous type injury to the cervical and thoracic areas of the spine, and to a lesser extent the lumbar spine;
(c)psychological and emotional trauma in, or as a result of, the accident.
In evidence the plaintiff said that on seeing the truck in front of the motor vehicle he remembered screaming for his life because he thought that he was going to die. He said that he put his arms up to shield his face or his body from whatever was going to happen.
The plaintiff also said that his good friend Mellisa (Mellisa Costa) was seated to his left. He recalled her opening the door and getting out of the motor vehicle and then laying down on the ground. He said that she was closing her eyes. The plaintiff said that he thought that she was going to die. He said that he did not have any such fear for himself when he was walking around after the accident.
The plaintiff was taken by ambulance to Fremantle Hospital. In evidence he described pain all over and was concerned about the look of what had happened to his stomach from the seatbelt. He said that they gave him medication to take home, namely Panadeine Forte, and his father collected him at about 6.00 o'clock in the morning.
The Fremantle Hospital records were admitted into evidence as Exhibit 8. The emergency registration record notes a complaint of abdominal injury. There is a diagnosis of bruising around the abdominal wall. Further ancillary injuries were noted comprising a soft tissue injury to the right leg approximately 3 inches above the knee and a minor laceration to the left ankle. The medical records reveal, at that time, no neck pain. At 3.00 am it was noted that the plaintiff had denied any other pain or injury. The records indicate that the plaintiff was provided with Panadeine and Naprosyn. However, it is also noted in what appears to be a referral letter on discharge that that was Panadeine Forte. That referral letter contained a note "Please return to ED if increased pain/vomiting or dizziness".
The plaintiff said that he went home and lay down. He spent a lot of time in bed over the next days and said that he was in pain all over. The bruising to his abdomen was turning darker as the days progressed. As to his pain he said that it was generalised, "feeling like you're being hit by a truck".
The plaintiff confirmed that the bruising to his stomach disappeared as did the generalised pain but then he had pain mostly in his neck and to some extent in his back. He said that the pain extended approximately one‑third of the way across the shoulders on both sides and in the upper back and to some extent in the lower back. He observed these pains when he started work at Betts & Betts in Rockingham about a week after the accident.
The plaintiff described the pain in his neck as a dull ache but with "episodes" of searing pain. He said that he would get those episodes every three or four months. He described the pain as being 9 out of 10 with severe headaches. In his evidence he described the pain on other occasions as constant pain at about a rate of 3 out of 10.
The plaintiff's evidence was that the episodes which he described as being more severe came when he was more active. He would then take medication and lie down. He said he could not work or socialise because of the pain.
The plaintiff was at this time living with his father.
The plaintiff then met Ms Christie Bell‑Bray in early 2003 and commenced a relationship with her. I shall refer to her as Christie to avoid confusion with Ms Annie Bell-Bray, who is referred to later. According to Christie that relationship commenced on 5 April 2003. She was at that time living with her mother, Annie Bell-Bray, at Halls Head.
The plaintiff then left his father's home in Greenfields, Mandurah and moved in with some friends and subsequently, on 9 May 2004 lived with Christie at Clayton Street, East Fremantle. Both the plaintiff and Christie were attending university; he at Murdoch doing media studies and theatre and drama studies and she at ECU Mount Lawley.
Having moved to East Fremantle the plaintiff moved from Betts & Betts in Rockingham to Betts & Betts in Fremantle. This was casual work involving Thursday nights and on Saturday.
The plaintiff and Christie continued to live together at Clayton Street, East Fremantle for about a year and in December 2005 moved to Carrington Street, Palmyra where they lived together until about May 2007 when the relationship came to an end.
The plaintiff has a significant interest in drama and in mid 2007, having been accepted into the Royal Academy of Dramatic Art (RADA), he went to London where he remained for the months of June, July and August undertaking an acting course. Thereafter he took a bus tour through Europe for two weeks and then returned to Australia.
The plaintiff obtained a graduate diploma in teaching and commenced working as a teacher in 2008 initially doing relief work at Halls Head and Mandurah High School.
Christie's mother, Annie Bell-Bray, is a physiotherapist. The plaintiff in his evidence said that he had physiotherapy treatment from her. He said he would visit her house with Christie and Christie would have some treatment as would he. He thought that this started about a month or two after meeting Christie and her mother. That would place it at about April or May 2003.
The plaintiff put in a claim for travelling expenses for attending on Annie Bell‑Bray every two months or so. Under cross-examination he agreed that he had not travelled to her house for the purposes of getting physiotherapy treatment but had gone there with Christie who had had some treatment on those occasions as did he. He said that she did it socially and he was grateful for it.
The plaintiff said that Annie Bell‑Bray knew of his accident because he had told her of it and that he was suffering from neck symptoms and a sore upper back.
The plaintiff also described suffering depression and was prescribed antidepressants. This was towards the end of 2007 and 2008. For his pain he said that he took Panadol‑Osteo. He also had Nurofen Plus and Advil in his drawer at work if headaches should flare up.
Apart from these visits to Annie Bell-Bray, the plaintiff sought no further medical treatment in respect of any injuries sustained in this accident until seeing Dr Louie, his general practitioner, on 10 January 2007.
However, the plaintiff had attended upon Dr Louie and his partner Dr Bell in respect of other matters commencing on 13 September 2004. These matters were of a cosmetic nature and involved facial warts, a cyst and "bat ears". These consultations were set out in a schedule which became Exhibit 1 and noted consultations from 13 September 2004 until 2 February 2006. On no occasion did the plaintiff complain to Dr Louie nor seek any medical treatment in respect of any accident caused injuries and in particular pain in his neck, upper back, lower back or headaches. When asked why, the plaintiff said that he thought that it would improve over time and he did not have a GP. He said that he was having physiotherapy and thought that that would be adequate. Nevertheless he said it did not improve in a lasting way. He said that it was never suggested to him that he ought to see a doctor. He also went on to say:
"And also not really knowing what a doctor could do, knowing that the pain was in my neck. I didn't really have an awareness of, you know, what can a GP do? I didn't even think that he could refer me on to someone else, until I learnt that that's what they do."
He said that he finally spoke to Dr Louie about the pain because:
"I had enough of the pain, but I'd had an episode before I saw him and I actually really wanted to have an x-ray, because I wanted to see if there was anything wrong with the bone …"
Under cross-examination he said that he hoped that the pain would go away and thought that he was stubborn. When asked why he did not mention his neck, back and headache problems to Dr Louie when he was seeing him in respect to the facial warts he said "I suppose because I was focused on … the warts …".
He was also asked why he didn't seek painkillers from the doctor and replied:
"All – what I can say to that is I didn't really think that a doctor could do much, okay – a GP in his clinic. I didn't realise until later on that he could refer me to a pain specialist, that he could put in an action plan, which is what we've done recently, that he could do all of these things.
You didn't think a doctor could help you with pain? – With that pain, with the neck pain, no.
… What makes your neck pain different from any other pain that a doctor might help you with? – Well, I was having treatment with a physio which was dealing with the neck pain and that's what the, the, that's what I saw as being necessary to look after that the, the neck pain."
The plaintiff led evidence from his friend Mellisa Costa. She described their relationship as best friends.
She was in the car with the plaintiff at the time of the accident.
She gave evidence that before the accident she socialised with the plaintiff and lived with him. Before the accident he did not show any signs of pain or complain of pain. After the accident she said that she recalled him complaining a lot about headaches when they were living together.
She said that she could see that he was stressed and he started seeking treatment. She was not sure if that was before he went to see Annie Bell‑Bray. She said that she remembered him going to the doctors' quite a bit.
Apart from what he may have told her (which of itself would be inadmissible hearsay; see Ross v Insurance Commission of WA [2009] WASCA 91), she said there was nothing to indicate that he was in pain.
She said that at some time after the accident they were not as close as they were before and the plaintiff was distant and did not eat much even when they were living together. He was in his room and she did not see much of him. He "withdrew into his own world". She then went on to say that at that time everyone had started working, studying and so "that's just natural I thought".
Under cross-examination she agreed that in 2007 they were close. She said that the plaintiff was around a lot at the time when her son was born. She was asked about the plaintiff complaining about symptoms in 2008 and she recalled him talking about being in a lot of agony. She could see that he could not move much, he was gaunt and did not look well.
Before this time she saw him at Carrington Street, Palmyra. She and her husband would go there to watch a movie and the plaintiff did not complain of his symptoms to them.
She said that when he was living with her he complained of blinding headaches and his back and neck were very sore.
She was generally uncertain about events and times but was certain about him complaining of headaches and back pain when he visited her in hospital in 2007 when she had her son. It was put to her that he was relating to her that he had had a bad back all these years and she agreed. The following exchange occurred:
"And if he's told you that he had that since the date of the accident you'd believe that? – Yes.
And you believe that? – Yes.
Because that's what he's told you? – Yes.
But can I put it to you that he really didn't complain to you much about any of those things until 2007 when – and that's where the bulk of your memory's coming from about this? – Yes, perhaps. Yeah.
And is it also fair to say that you don't have a good recollection of all this? – Perhaps, yes.
Yes? – Yes. Like I said, I – it was an accident and I was in the car and I didn't really discuss the situation with Mark at all until this.
Until this court case? – Yes."
The plaintiff's mother Ms Karen Tuffley also gave evidence.
She said the plaintiff came to live with her about mid 2007 after he broke up with Christie and had returned from London. Before that she saw him every couple of months but not often.
She noticed that he was rolling his neck every time she saw him. He had told her that he had a sore neck. After he came to live with her she noticed it more and he went to his room a lot. She would heat up a wheat bag for him to use on his neck.
Under cross-examination Ms Tuffley agreed that the relationship that the plaintiff had with Christie appeared to be fine and they got on well.
She agreed under cross-examination that she had had a conversation with Christie in which Christie had said that she thought that the plaintiff was not himself. According to her Christie had said that he was in a lot of pain with his neck.
In order to clarify the evidence of Ms Tuffley counsel for the defendant confirmed with her that the plaintiff did not reside with her from the time of the accident until 2007, she did not then see him on a daily basis and that by 2007 he was complaining to her of significant symptoms in his back and neck and with headaches. However she denied that she was projecting that back to the earlier years after the accident.
She recalled Christie ringing her up expressing difficulties with the plaintiff in that he was experiencing psychological issues. She thought that he was under stress trying to raise money for his trip to London. She said that she expressed her concern to Christie about that stress because the plaintiff's father had had a breakdown from stress.
The only other witness called and who was able to speak to the plaintiff's condition between the time of the accident and him seeking assistance from Dr Louie was Christie.
She said that when they started to go out they would see each other three times a week and on weekends. When he moved in with his friends she saw more of him. They spent time in each other's houses and slept over.
In their early days when they were both at university they would take the bus to Perth which was about an hour's journey. Further, before they moved in together she said that the plaintiff was playing indoor beach volleyball one night a week.
She described their relationship as great and they got on very well together and were best of friends. She described the plaintiff as being fun to be around. She described camping trips to Busselton and Margaret River, going out with friends to nightclubs and dancing. During these activities she did not see the plaintiff suffer any physical ill effects.
Before moving to Clayton Street, East Fremantle the plaintiff had never complained to her about his neck, back nor headaches. Further, he had never made any obvious signs that he was suffering from such complaints. Further, she was not aware of any other physical or mental complaints at any time. She was aware, because the plaintiff had told her, about his sister and father having bipolar disease.
They moved to East Fremantle in May 2004 and were both studying in their second year at university. There was less travelling to university. The plaintiff was studying full-time and working Saturdays in Betts & Betts and on Thursday nights.
Apart from study and work at Betts & Betts she described the plaintiff as being involved in plays and directing movies. She recalled two such movies.
Again she did not observe any physical symptoms other than the warts on his face for which he sought treatment. She did not observe any behaviour in him in relation to his neck or back.
During the course of her evidence she was told that the plaintiff had described his pain as generally being 3 out of 10 and, when it was episodic, 9 out of 10. She said that she had never seen that and he had never made it known to her. She thought she would have known.
She was asked about medication in the house and she said that there was nothing until 2007 save for some general Panadol, but nothing specific. I pause at this stage to note that in a referral to Dr Mastaglia dated 17 March 2006 (part Exhibit 6) Dr Louie referred to the plaintiff's then current medications as being nil. By 31 July 2008 in his referral to Dr Roger Goucke, Dr Louie has the medications as Panadol Osteo, Advil, Nurofen Plus, Voltaren Rapid and Fluoxetine. By 14 October 2008, in a referral to Dr Hamzah, the then current medications were expressed to be Fluoxetine hydrochloride and Panadeine Forte.
In 2006 Christie had finished studies and was working at BankWest. The plaintiff was continuing studies and doing plays which occupied a lot of his time. She said that she would pick him up at 11.00 or 12.00 o'clock at night three times a week and weekends. Again in 2006 she was not aware of any physical symptoms regarding his back or neck, but he was having treatment for his ears and a cyst.
In 2007 she said that they started to drift apart. She said that she noticed a change in his behaviour. She said that he was complaining about his neck and back pain. There were personality differences. He had started smoking which they argued about. He was also spending which was of concern for her. He no longer shared matters with her and locked himself away in his bedroom. She was concerned that he was not telling her about problems. She said that she telephoned his mother about these problems because she was worried about him being stressed and she was aware of the problems that his father had had. She described the changes as "dramatic".
Christie said that the plaintiff was accepted into RADA. There was a cost of $15,000 involved. They started fundraising and she was embarrassed because he had spoken to her mother about trying to get her friends to help out.
Christie also gave evidence about treatment from her mother Annie Bell‑Bray. She said that she would "scam" treatment from her mother as did her sister. This was before Christie had met the plaintiff. After they met it continued.

Sometimes the plaintiff was present when she was at the house and her mother would ask him if he wanted some treatment as well. However she never heard him say to her mother why he required the treatment nor make any complaint of neck symptoms or other symptoms. She was cross-examined about this treatment. She did not recall the focus of the treatment being on his neck and upper back. She described it as her mother's usual treatment. It was the same treatment that she would get. However she did agree that that involved the back and neck. She also agreed that if the plaintiff wanted a massage she would give him one.
Christie was asked whether or not the plaintiff played any sport after they had moved in together. She said that he played indoor beach volleyball one night a week. Under cross-examination she agreed that she had not seen him play volleyball but saw him getting ready to go out and he told her that he was going to beach volleyball. She said that she saw him put on sports clothes.
Evidence was led from a number of medical practitioners. Those practitioners produced a number of reports which contained their opinions. In each case the practitioner obtained a relevant history from the plaintiff as to the circumstances of the accident and his complaints of ongoing pain. Most of those reports were obtained for medico‑legal purposes and it is fair to say that opinion is divided as to whether or not the plaintiff's current complaints are or are not the result of his motor vehicle accident. The medical evidence relates to both the physical aspects of the plaintiff's claim and the psychological symptoms claimed by him.
The only evidence which is not in the nature of a medico‑legal report is that from Dr Hamzah who on two occasions has treated the plaintiff by way of injections into the greater occipital nerves which have produced some relief for the plaintiff.
In respect of the plaintiff's physical injuries the latest report before the Court is that of Dr Connaughton, an occupational physician, dated 29 June 2009. He describes the plaintiff's current status as bilateral neck pain which radiates down to the shoulders and spine and to a lesser extent in the low back. When the neck pain is worse the plaintiff has headaches sometimes daily and the last one lasted four or five days. There is no nausea or visual effects. The plaintiff can awake with pain which is worse in cold weather. He has flare ups every three or four months lasting three to four days with pain up to 9 out of 10. Dr Connaughton noted (but without going into detail) that the plaintiff has reduced his activities.
The evidence in this case is that for a period from 4 August 2008 until 28 January 2009 the plaintiff reduced his work as a teacher from full‑time employment to 0.8 load, working four days per week. He attributed this to his symptoms. Since the start of the school year in 2009 he has been on full-time work.
In the current year the plaintiff has travelled. He had a 6½ week trip overseas. He went to Bangkok for four days, then to London for nine days and then on to New York for sightseeing and where he saw five shows on Broadway. He then went to Los Angeles from whence he drove to Palm Springs, a drive of two hours and then to Las Vegas, a drive of three hours. From Los Angeles he then flew to Hong Kong for three or four nights then Singapore for one night before returning to Australia.
The plaintiff was questioned about whether he did anything particularly onerous on this trip. He said that he had climbed the Empire State Building. I will return to this shortly.

Findings

It is not in dispute that the plaintiff was involved in the motor vehicle accident the subject of this claim. Further, there does not appear to be any real dispute that in that accident he suffered bruising to his abdomen. The description given by the plaintiff would suggest that that bruising was quite severe. He also had localised general pain and, according to the Fremantle notes, a soft tissue injury to the leg and a laceration to the ankle. As to these last two injuries no claim is made on the statement of claim nor was any advanced during the course of evidence in relation to them.
I find that the plaintiff did suffer injury in the accident by way of bruising to his abdomen and generalised pain. The plaintiff described it as like being hit by a truck. It seems that the accident was quite significant and it is entirely understandable that he would have suffered generalised pain and I so find.
It is the plaintiff who bears the burden of proving what injuries and disabilities he has suffered and the causal connection between those injuries and disabilities and the subject accident.
Irrespective of whatever disabilities the plaintiff has suffered, save as noted above, the plaintiff has not satisfied me that those disabilities such as they are are causally connected to the accident.
It is the plaintiff's case that his neck, back and headache problems came on shortly after the accident and continued right up till the time that he complained to Dr Louie in early 2007. As I have noted, he has described the pain as being 3 out of 10 all the time and episodically 9 out of 10. By 2007 he said that he had had enough. The whole tenor of his evidence is that this pain and discomfort was ongoing throughout this period.
I do not accept the plaintiff's evidence relating to the treatment that he received from Annie Bell-Bray. I accept the evidence of Christie that such treatment (to use a neutral term) as he received was the same as she received from her mother from time to time. I do not accept that it was treatment given by a physiotherapist in a professional way for accident caused injuries. If the plaintiff was suffering the symptoms which he described and if Annie Bell‑Bray was aware of the nature of those symptoms and that they arose from a motor vehicle accident (as the plaintiff alleges) it is hard to accept that she would treat the plaintiff gratuitously over a period of time and further where such treatment extends over the period alleged by the plaintiff, that is to say from April 2003 to January 2007, that she would not refer the plaintiff to a medical practitioner for review.
I am not satisfied that she was treating the plaintiff in respect of accident caused injuries. It is more probable, and I so find, that she was providing similar services to that which she supplied to her daughter by way of some sort of therapeutic massage.
Annie Bell-Bray was not called to give evidence. She had been subpoenaed by the plaintiff. The plaintiff then made her available for the defendant to call if the defendant so wished.
Both parties have addressed the failure to call Annie Bell‑Bray. Both rely upon the dicta in Jones v Dunkel (1951) 101 CLR 298 to the effect that a failure of a party to call a witness may in appropriate cases lead to an inference that the uncalled evidence would not have assisted that party's case.
The plaintiff's counsel advised the Court that Annie Bell‑Bray had a personal antipathy towards the plaintiff. It was for that reason that she was not called. The plaintiff noted that the defence put questions to the plaintiff based upon certain information relating to Annie Bell‑Bray. The plaintiff posed the question as to why the defendant did not call Annie Bell‑Bray having put those allegations. It was suggested that Annie Bell‑Bray gave no more than gentle massages to the plaintiff and she would be in an ideal position to give evidence about that.
In my view the answer to that is that if Annie Bell-Bray was in fact providing treatment to the plaintiff for his accident caused injury and that treatment was in the nature of regular physiotherapy treatment and if there is some dispute about that one would expect the plaintiff to call that evidence in support. Allied to that is the question that I put to the plaintiff's counsel as to whether a professional physiotherapist knowing a person had been involved in a motor vehicle accident would be likely to provide gratuitous physiotherapy services to alleviate pain or symptoms.
It seems to me that the obvious inference to be drawn from the failure to call Annie Bell-Bray is that she was not providing treatment for accident caused injuries as the plaintiff alleges. The inference is that that would have been the tenor of her evidence. Further, it also seems probable to me that, against that background, questions may have arisen as to whether or not she would have advised the plaintiff to seek medical treatment.
Whilst I accept that the principle in Jones v Dunkel applies to both parties, the plaintiff's failure to call the witness does bear adversely on his case.
It is the plaintiff who bears the burden of proving the accident has caused the injuries of which he complains. The plaintiff did not seek medical treatment because, according to him, he was having physiotherapy treatment. That physiotherapy treatment is part of his reasoning for not seeking medical treatment. That being so the physiotherapy treatment is the only treatment that the plaintiff was receiving between 2002 and 2007. The failure to call evidence in relation to that treatment leads to the inference (and I so find) that that evidence would not have supported the plaintiff's claim that he was complaining of symptoms to Annie Bell‑Bray arising out of the motor vehicle accident. Further just because counsel may say from the bar table that she had a personal antipathy toward the plaintiff that is not sufficient. There was no evidence as to this or to the nature of that antipathy or that it would have lead to the witness not telling the truth once under oath.
It does not follow, having drawn that inference, that the plaintiff was not in fact suffering symptoms. In order to come to a conclusion as to that it has been necessary for me to consider the whole of the evidence.
In this regard it is to be remembered that the plaintiff said that he had these symptoms all along, such symptoms being exacerbated by activity. For example, when the plaintiff moved from Betts & Betts in Rockingham to Fremantle he was then subjected to climbing stairs throughout the day in order to bring stock down to the shop floor. He said that this exacerbated his problems.
Despite all of these problems there was no medical treatment sought until 2007. The plaintiff's explanation, apart from the fact that he was having physiotherapy, was that he did not believe that a general practitioner could assist him with pain. He also said, on one occasion, that he could not afford it. He was unable to give any satisfactory explanation as to why he could not have obtained treatment on bulk billing as he did for the treatment for his facial warts.
I do not accept the plaintiff's explanation that the doctor could not help him with the pain. It beggars belief that a person such as the plaintiff, who is well educated and articulate, could harbour a view that a doctor could not assist with pain. It is a matter of common experience that a general medical practitioner would be one of the first ports of call for a person experiencing pain such as that described by the plaintiff and over the period of time which he described. When asked what finally motivated him to speak to Dr Louie about the pain he said that he had had enough of the pain. That suggests, as does his evidence as a whole, that he had been experiencing pain for some considerable time. Notwithstanding this, despite the opportunity to do so by visiting Dr Louie's surgery for other matters, he failed to make any mention at all of his symptoms said to arise out of the motor vehicle accident.
The matters about which he saw Dr Louie were cosmetic which he indicated would affect him in his acting career. He has described acting as being physical and requiring concentration which can be affected by his pain. In other words, his pain was as much a limiting factor to his acting abilities as was the cosmetic.
The fact that he did not seek medical treatment in respect of these symptoms leads me to find that he was not suffering any such symptoms as a result of the motor vehicle accident. That view is also supported by the evidence of Christie.
Christie was in a very close relationship with the plaintiff. It was not until 2007 that he made any complaints to her about symptoms or she saw any obvious signs of symptoms. She thought his character was changing at that time. Christie was probably the person who was in the best position to observe the plaintiff and to receive his complaints of symptoms and to observe him. She said there were none. I prefer her evidence to that of Ms Costa and the plaintiff's mother.
The only real challenge to the veracity of Christie's evidence was the suggestion that her recollection of events prior to 2007 is coloured by the fact that she had a man who she thought was the man for her but who changed and the relationship ended. She denied that that was in fact the case. Behind that suggestion is the further suggestion that she was compressing these complaints and symptoms into that final period rather than accepting that they existed over the period of their relationship.
One might argue, more forcefully and successfully that that is the way in which the evidence of Ms Costa and the plaintiff's mother should be treated. Both of them have had more to do with the plaintiff in more recent times than during the period between the accident and 2007. I accept that the plaintiff resided for a while with Ms Costa but her evidence in relation to him at that time is vague.
Christie gave her evidence in a forthright and straightforward manner. I unreservedly accept her evidence that there was no complaint of symptoms during the period that she lived with the plaintiff until towards the end of their relationship. Further, I accept that there were no obvious outward signs of him having any difficulties and I also accept her evidence about the general lack of medication around the house which appears to be borne out by the referrals given by Dr Louie to other medical specialists to which I have already referred.
In addition to all of the foregoing no evidence was called from the plaintiff's father with whom the plaintiff lived for a while after the accident before he moved in with Christie. No satisfactory explanation was given as to why he was not called. It is true that he has himself suffered psychological or psychiatric issues. Bipolar disease has been mentioned. Nevertheless, according to the plaintiff's mother the plaintiff's father seemed to be coping well. The plaintiff's father would have been in an ideal position to give evidence about the progression of the plaintiff's condition after he had got over the initial impact of the accident, that is to say his stomach bruising and generalised pain. The defendant says that from the plaintiff's failure to call the father I should draw an inference that his evidence would not have assisted the plaintiff. On its own such lack of evidence might not have been telling. However, when seen against the plaintiff's failure to call Annie Bell‑Bray and the plaintiff's failure to seek medical treatment until 2007, any evidence to support the plaintiff in his contentions that he was suffering symptoms after the accident, is evidence that should be called if available and supportive.
Accordingly, I draw the inference that his evidence would not have assisted the plaintiff.
In rejecting the plaintiff's evidence about the cause of his symptoms I have also had regard to the manner in which the plaintiff generally gave his evidence. Whilst individually the matters to which I will refer would not be conclusive, taken together and with the other matters to which I have referred, they reflect upon the plaintiff's credibility.
The plaintiff in his evidence said that since the accident he has not played beach volleyball. Whilst Christie did not see him playing beach volleyball, her evidence is indicative of that fact. That is further supported by the plaintiff's cross-examination. The plaintiff said that he had not returned to playing volleyball since the accident. He was definite in that regard. He was then asked whether he recalled playing volleyball in 2003 whilst he was going out with Christie. He replied that he did not recall it. When asked if it was possible he said that it was possible but he did not think it likely, but when it was put to him that he went off to play indoor beach volleyball and she could be right about that he agreed that she could.
One would have expected the plaintiff to have been more definite under cross‑examination. His primary position was that he had not played volleyball since the accident. However, when faced with the possibility of evidence that he may well have done so he backtracked. The plaintiff's argument about not playing is that he said that having played one game of badminton and having been in pain afterwards he knew his limits. He agreed that if he had played volleyball it obviously had not caused him any symptoms because he would have remembered it. In my view the plaintiff's evidence is not acceptable and I find on the balance of probability that he did in fact play volleyball after the accident as suggested by Christie.
I have already expressed the difficulties that the plaintiff says that he has by reason of his symptoms. According to the plaintiff they are disabling to him in his activities and in his work. To the extent that they do not cause him to take time off from work, his evidence was that he would frequently have to lie down to recover.
Against this the plaintiff appears not to have had too much trouble with travelling. Not only did he go to London for the purposes of attending RADA for three months in 2007 but he followed that with a bus tour of Europe. In addition to that he has taken the extended holiday to the United States to which I have already referred. That involved a great deal of travelling and included driving whilst in the United States. There is no suggestion of any of that causing him difficulties. In my view that constitutes an inconsistency with his evidence about his ability to carry out activities and to work.
However, more telling was the way in which the plaintiff answered questions about his trip to America and climbing the Empire State Building. He was consistently asked whether he climbed stairs when climbing the building. He was unable or reluctant to give any information about how much of the building he scaled by way of lift or stairs. He refused to even try to estimate the proportion.
On his "Facebook" he referred to "climbing" the Empire State Building. In evidence he said that he did not necessarily mean that he physically climbed it. When asked whether he meant that he took the lift he said "Well, possibly, yeah". He said he used the expression "climb" as a creative expression.
Generally the plaintiff's evidence in relation to this aspect of his trip was evasive.
After the conclusion of the trial the Court was provided (by consent) with a letter from Wien & Malkin LLC, attorneys representing the Empire State Building Company LLC, which clearly shows that the stairways in the building are used for emergency only save (inter alia) for emergency drills, once a year for a run up the stairs and occasional use between the 80^th and 86^th floors for observatory visitors during temporary periods when visitors may strain the efficient use of elevators.
I return to the comment that I made earlier, that is to say that the plaintiff has not satisfied me that he has suffered injuries to his neck and back nor am I satisfied on his evidence that he suffers headaches which are related to the motor vehicle accident. I find that whatever symptoms and difficulties the plaintiff experiences at the present time and indeed since he first made complaint to Christie in about early 2007 are not related to the motor vehicle accident.

It is suggested on the plaintiff's behalf that causation should be established on the plaintiff's evidence and on the fact that he had no disabilities prior to this accident, he now suffers disabilities and that there is no evidence of any intervening cause. That is indeed an approach that has been adopted by many of the doctors based upon the history given to them by the plaintiff.
I do not accept such a proposition in a case such as this. The plaintiff was unconvincing in his evidence and has failed to satisfy me of the causal connection and it is not sufficient merely to point to those matters so as to establish causation.
Having made those findings it is not necessary for me to go further into the medical evidence. As I have noted, the medical opinions are predicated on the accuracy of the history given by the plaintiff. Whilst doctors may or may not express opinions as to whether or not an event such as the accident could or probably was a cause of the plaintiff's current complaints, it is a matter which can only be ultimately tested against the history that the plaintiff gives. In a case such as this where there is a considerable time gap between the accident and the plaintiff first complaining to a medical practitioner, the history given by the plaintiff requires close examination.

Damages

Section 3C of the Motor Vehicle (Third Party Insurance) Act 1943 provides restrictions on damages for non‑pecuniary loss. The amount of damages to be awarded for such loss is to be a "proportion, determined according to the severity of the non‑pecuniary loss, to the maximum amount that may be awarded". The current maximum amount is $327,000.
I find that the plaintiff did suffer injury in the accident which comprised extensive bruising to the abdomen and general discomfort. I find that that caused some pain and suffering to the plaintiff for approximately one week after the accident.
Whilst the accident was no doubt a fairly significant accident and would have been quite scary and distressing to the plaintiff, I am not satisfied that the plaintiff has had long-term or lasting effects from it. The evidence of Dr Ng, a consultant psychiatrist, is that the plaintiff developed a post-traumatic stress disorder (PTSD) to a moderate extent following the motor vehicle accident which has improved and is present (as at the date of his report being 1 August 2008) to a residual extent. He describes residual anxiety while in motor vehicles where there is traffic congestion or he is driving on the freeway and there are large trucks near him or when it is raining.
Dr Ng set out in his report and also in his evidence the complaints made by the plaintiff in relation to how the accident had affected him and the flashbacks that he had. For the purposes of his diagnosis of PTSD he said that he believed the plaintiff. However, he agreed that if the plaintiff did not experience those symptoms then he does not have PTSD.
I am satisfied that the plaintiff may well have had a fleeting thought that he was going to die in the accident. However his evidence was that immediately after the accident he knew he was not going to die. He has not satisfied me on the evidence that he has since had problems associated with this to any significant extent. I rely upon the evidence of Christie that he never exhibited any such symptoms to her or complained to her about it. She would have been in the best position to observe such matters and she travelled with him from time to time going to university, socially and on trips down to the south-west. Also the plaintiff has travelled extensively in Europe and in the United States. He has made no mention of any anxiety in respect of those journeys.
In the circumstances I find that any psychiatric symptoms there may be which may be classified as PTSD are not as a result of this accident.
Dr Ng also found that the plaintiff had a depressive condition described as a major depressive episode and at its worst a major depressive episode to a moderate extent. In relation to this Dr Ng was satisfied that the plaintiff did have a major depressive episode. Dr Ng said in his evidence that in arriving at his diagnosis he took into account that the plaintiff's depression was in the context of persistent pain. He also said that if the plaintiff did not experience persistent pain since the accident then the depressive episode would be caused by inherited and/or factors other than the accident.
In view of my findings on the plaintiff's physical state I find that such a depressive condition as the plaintiff may have is not causally connected to his accident.
In the circumstances the plaintiff's injuries and disabilities being as they were were minor. That being the case I would not place them above 5 per cent of the most extreme case as that expression is understood in the Motor Vehicle (Third Party Insurance) Act 1943 and under the legislation the plaintiff is not entitled to an award of damage for non‑pecuniary loss.
The plaintiff's claim covered a range of other claims.
The plaintiff claimed to have lost sick leave credits by taking sick leave between 18 February and 2 July 2009. In view of my findings in respect of the plaintiff's claim no allowance is made under this head.
The plaintiff also claims for losses in his earnings by reason of his reduction in work from full-time to 0.8. Again by reason of my findings in relation to the plaintiff's disabilities, there will be no award.
It must follow that as no allowance has been made for past losses so no allowance can be made for loss of superannuation benefits. The plaintiff asked the Court to reconsider the method of calculation of losses and deductions to be made under the guidelines set out in Jongen v CSR Ltd (1992) Aust Tort Reports 81‑192. In view of my findings the present case is not an appropriate vehicle in which to reconsider those matters.
There were a number of items of special damages claimed in respect of payments necessary to reimburse Medicare and other payments made by the plaintiff. Whilst there was an agreement as to the amount of such items, that agreement was dependent upon my findings on causation. In view of my findings I make no allowance in respect of those special damages. Specifically in relation to the travelling expenses, claims were made initially for the plaintiff attending Annie Bell‑Bray at her home for treatment. It became quite evident from the evidence of the plaintiff that he did not go there specifically for treatment but was there visiting with Christie at the time in any event.
The plaintiff claims for future loss of earning capacity by way of a global sum on the basis that the plaintiff's earning capacity has been diminished and that diminution may be productive of loss; Graham v Baker (1961) 106 CLR 340. Again in view of my findings on causation I am not satisfied that the plaintiff has suffered any future loss of earning capacity as a result of his accident caused injuries and I make no allowance. Similarly I make no allowance for loss of superannuation benefits in the future.
A claim for future medical expenses, medication and travelling for treatment is also made on behalf of the plaintiff. Again in view of my findings on causation no allowance will be made to the plaintiff.

Conclusion

For the reasons expressed above the plaintiff's action must be dismissed.