Caruso v Caruso - [2005] SADC 158

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
CARUSO v CARUSO
Judgment of His Honour Judge Herriman
30 November 2005
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES
Motor vehicle accident - temporary soft tissue injuries to both knees - headaches - soft tissue injuries to neck, shoulders and thoracic spine with residual 5% loss of function - ligamentous strain to lower back with residual 5% loss of function. Limited participation in favoured sport. Dispute as to impact on school studies and career choices. Non-economic loss $12,400 - past economic loss $7,500 - future economic loss $15,000 - voluntary services $4,050 - in lieu of interest $3,300 - future medical expenses $3,000 - special damages $5,506.10
Wrongs Act 1936 (SA) s35A, referred to.
Giorginis v Kastrati (1988) 49 SASR 371; Varnas v Peake (2001) 80 SASR 351; Husher v Husher (1999) 197 CLR 138, applied.

PERSONAL INJURY MATTERS
Student - road accident - back, neck and knee injuries. Impact of accident and other factors on studies and career options. Successfully performing manual work.
Law Type: Wrongs Act s 35A up to 30/11/02
Wrongs Act Scale: 8
Total Assessment: $50,756.10

CARUSO v CARUSO
[2005] SADC 158
INTRODUCTION

On the afternoon of Wednesday, 29 October 1997, the plaintiff, then a 14‑year‑old boy, was being driven home from school by his brother, the defendant, when their car collided with the rear of another car at a road junction in Fulham Gardens.
The plaintiff was then sitting in the front passenger seat and wearing a seatbelt, but as a result of the collision, he partially slid under it and his knees struck the vehicle dashboard. He suffered injuries to them, as well as to his shoulders and his spine in the cervical, thoracic and lumbar regions.
The defendant has admitted liability and the matter comes before me for assessment of damages.
At that time, the plaintiff was a Year 9 student at St Michael’s College, Henley Beach. In consequence of the accident, he missed a week’s schooling. Soon after he returned to school, he underwent previously arranged elective surgery to his jaw for an unrelated condition. He did not return to school for the rest of that year. He did, however, resume in the following year and went on to complete the academic requirements of Years 10, 11 and 12. At the end of the year 2000, he obtained a South Australian Certificate of Education (“SACE”).
During his latter years at school he also worked, on a part‑time casual basis, as an assistant in the fruit and vegetable section of a supermarket. Ultimately, upon leaving school, he remained in that type of employment, albeit with extended hours, and he has continued in it to this day.
The plaintiff claims that in consequence of the accident and the injuries I have described, he has suffered partial disablement of his cervical, thoracic and lumbar spine, with associated pain, ongoing pain and discomfort in his neck, shoulders, lower back and knees, and headaches. In addition, he says he has developed a post-traumatic stress disorder.
As a result of his injuries, he says that his school studies were disrupted, he lost the opportunity to obtain a more favourable SACE result or to complete tertiary studies or trade qualifications, and that he has in consequence suffered a diminution in his earning capacity and is permanently disabled from undertaking all the heavier forms of manual work, whether skilled or unskilled. In consequence, too, he has developed a post‑traumatic stress disorder and an adjustment order with depressed mood.
Finally, he asserts that his injuries have curtailed his enjoyment of life and, in particular, of sporting and social interests.
The defendant, whilst apparently conceding, at trial, the initial injuries suffered by the plaintiff, denies that they have led to the physical disabilities or psychological/psychiatric symptoms of which he complains, denies that his lower back injury was anything more than a temporary ligamentous strain which soon subsided, denies that the accident impacted upon the plaintiff’s school studies or future career options and says that any persisting symptoms in his neck, shoulders and spine are wholly or partly attributable to particular activities undertaken by the plaintiff since the time of the accident; in particular, his choice of employment and his participation in go-karting and gym exercise.
The plaintiff gave evidence and further called his mother and brother to corroborate particular matters. He called medical and other evidence relating to his injuries, physical or otherwise, his treatment, his school progress and his career options.
The defendant called no lay witnesses, but strenuously attacked the plaintiff’s credibility and otherwise relied upon medical evidence which, in a number of respects, opposed that of the plaintiff’s medical experts.
I will deal with the plaintiff’s claim by discussing and making findings about his physical injuries and their claimed organic and psychological/psychiatric consequences, and then considering the impact of my findings on his studies, his reasonable career aspirations, lost economic opportunities and his asserted loss of enjoyment of life.
In considering the nature and extent of his injuries and their consequences, however, I am mindful of the fact that many of his expert examiners were obliged to rely upon what he told them of his symptoms and disabilities. As his credit was squarely put in issue at the trial, I should first make some findings as to that matter.
CREDIT
Whilst I was generally satisfied that the plaintiff initially suffered from the injuries and symptoms claimed by him, I was, at the conclusion of the evidence, satisfied that he consciously and deliberately sought to falsify or exaggerate the extent to which they impacted and continued to impact upon his studies, his choice of career, his day‑to‑day work and his social and sporting activities. I drew this adverse conclusion from my observations of him in the witness box, from the nature and the level of his physical activity since the time of the accident, from significant conflicts or omissions in the various histories provided by him to medical practitioners and from the provenance and contents of the document D3.
I will enlarge upon that:
(1)Whilst I was satisfied that he injured his back and neck in the accident, I had serious reservations about his claim that the consequences of these injuries remained as serious as he said they were by mid‑1998.
At that time, he took on go‑karting at a competitive level and, indeed, his father made the substantial financial commitment of purchasing a go‑kart for him. I accept that after six or eight months he found he was unable to pursue that activity and I find that hardly surprising in the context of what I am satisfied were genuine neck and back injuries. Even so, he had previously participated in go‑karting at a social level, he must have known, as I find, that it involved using unsuspended, un‑cushioned vehicles and collisions with other vehicles or track borders, and yet he sought to intensify the level of his involvement in that sport. The fact that he undertook it at all, at that time, causes me to question the level of pain or disability from which he said he was then suffering. Further to all that, I view with considerable reservation, his apparent failure to tell his general practitioner, Dr Vinci, anything about his participation in that sport. I otherwise found his responses to cross‑examination on the whole topic of go‑karting to be prevaricating and unconvincing.
(2)Similar observations must be made about his participation in gymnasium work. I will discuss elsewhere the body‑building issue, but the plaintiff’s own position was that he had trained at a gym before the accident, that he had stopped attending after it, but that he had then gone to another gym on doctor’s advice, albeit for only three weeks. He had later returned to his original gym on occasions, but had found it difficult. He reported as much to Dr Jezukaitis, but it appears he never told Dr Vinci about the extent of his participation in that activity; indeed, the disclosure of his level of participation appeared to take his general practitioner by surprise. He told other consultants of his attendance at the gym, but none of them were apparently aware of the extent of it. In short, he understated it to them and, even at court, sought to downplay it.
Of course, gym attendance was not necessarily inconsistent with the presence of the injuries he complained of, but I had serious reservations about his tendency, as I find it, to mask the level of his participation and to attribute his well‑sculptured physique to genetic factors. He was obviously familiar with the paraphernalia and language of gym work and, indeed, said he had been able to carry it out without formal supervision during most of the time since the accident, albeit that he had not attended for 12 to 18 months prior to September 2004.
He gave evidence about specific exercises which he undertook and which, on the medical evidence I accept, should ordinarily have aggravated his upper back. As well, he spoke of “spotting” for friends who were doing bench presses and, indeed, of their doing the same for him. By “spotting”, he was referring to a role whereby an assistant stands by a person undertaking a bench press and in such a way as to be prepared to assist in taking or raising the weight, should it be necessary.
That struck me as an unusually risky activity to undertake, given his claimed level of disability.
(3)There is then the evidence which emerged at trial relating to his body‑building. He said he had attended gym from a time before the accident, for fitness and strengthening purposes. It was also plain that before the accident, he had been a keen sportsman and a relatively successful one, in particular at soccer. Even as a 15‑year‑old, he had been a well‑built young man.
In the histories he gave to various doctors and in his evidence itself, however, he sought to attribute his physique to genetic factors. I found that to be disingenuous and strongly suggestive of a desire to downplay the extent of his physical activity since the accident. It plainly conflicts with the observations of a number of the experts, the photographs D1 and, indeed, plain common sense.
Further to that, early in cross‑examination, he had then acceded to defence counsel’s suggestion that he had engaged in body‑building at the gym. Other witnesses were later interposed, including Dr Vinci. When he was ultimately called back to the stand, he took some pains to distance himself from that same description of his activities. Those intervening witnesses had been challenged on their knowledge of his body‑building activities and it emerged he had consulted Dr Vinci the evening before he returned to the witness box. I was left to wonder why he became so concerned to explain his earlier evidence.
At all events, I did not think that the manner in which he sought to qualify his earlier evidence materially lessened its impact. He sought to define body‑building as involving very heavy training, the use of diet and substances to assist it, and participation in competitions, and he said that he had not been doing that. When the earlier suggestion had been put to him that he had engaged in body‑building, he had, I am satisfied, understood the expression to carry what I would regard as its everyday meaning, that is to say, engaging, whether for competitive reasons or otherwise, in attempts to build a strong and sculptured physique. I am satisfied, too, that he had answered the question put to him on those terms and, indeed, his answer had corresponded with the evidence, he had given elsewhere, of his intention to develop fitness and strength without ongoing participation in organised sport.
Elsewhere there was evidence supporting the view that participation in a properly supervised level of body‑building would not necessarily have conflicted with the presence of spinal injuries and disabilities, but apart from a short period of about three weeks, supervised body‑building had never occurred.
It seemed to me that he had become anxious, after reflecting on his earlier evidence, to write back the extent of his physical activity in the gym for fear that it might undermine his claim as to the level of his spinal pain and incapacity.
Of course, the defence position was that his gym work was extensive, not supervised and likely to have caused or aggravated his spinal complaints.
(4)There is then the document D5, his gym membership agreement dated September 2004. In it, under the heading “Medical History” he denies having any “Back Complaints” or “Bone/Joint Problems”.
He was challenged about that and advanced the explanation that he had disclosed his back problem in his member interview, but had been told that everybody has a bad back and to write “None”, so he had done that. He did not tick the box identifying any “Bone/Joint Problems” because he had only “skimmed over” the document.
I found his explanations for these matters to be unconvincing, indeed concocted. Given his apparent familiarity with gym exercise, his long attendance at those premises and his claimed ability to manage his own exercise regime, I can think of no reason why the plaintiff would have wanted to conceal his conditions from the gym operator, anyway. His false claim on that document that he was a “student” in order to access cheaper gym fees is also instructive.
(5)It emerged in the course of evidence that there were days when the plaintiff was absent from work, allegedly because of his injuries and for which he obtained sickness certificates, when he nonetheless attended the gym. He was obliged to concede that neither his employer nor the issuing doctors were aware of the coincidence of those activities.
(6)In the context of the plaintiff’s claim that his capacity to undertake domestic activities had been limited by the accident, he suggested he had been unable to make his bed, that since the accident his mother had undertaken that task and that he was no longer obliged to assist the family in washing the dishes, nor did he hang out his clothes. These were small matters, but extraordinary and unbelievable in the context of a person who was working in a manual occupation and participating in regular gym activity.
(7)It was again a small matter, but in the course of his cross‑examination, it emerged that he had in fairly recent times obtained a chauffeur’s licence and had done some unpaid work. That information had not been proffered in his examination‑in‑chief.
(8)His assertions that his social life had been affected by his injuries were tested in cross‑examination and I found his explanations unconvincing. It appeared to me that he had chosen the social life he wanted, and to a significant extent in recent times his activity level had been influenced by the social limitations placed upon his girlfriend.
(9)His claim was in part based upon the impact of his injuries on his academic achievements at school and their consequences for his career. The plaintiff in evidence variously made claims about his inability to study because of discomfort and tiredness, but for the reasons enlarged upon elsewhere, I simply did not find these credible.
(10)At various points in his evidence, he purported to attribute his paid work performance and the warnings he received to his injuries, but his evidence about this was prevaricating. At one point he said he did not know whether his injuries affected his work. At another, he agreed that the working hours he was given had no connection at all with his performance, but related solely to his supervisor’s capriciousness in allocating shifts. And that, of course, contrasted with the contents of D3, where his own drafting purported to say that his injuries limited his capacity to undertake the paid work.
On this topic, the court would have been assisted had his work supervisor been called to give evidence, but that did not occur. There was no sufficient explanation advanced for it and I infer that that person’s evidence would not have assisted the plaintiff’s case.
It appears to me that, for reasons of his own, the plaintiff was committed to neither study nor to paid work and I am not persuaded, on all the evidence, that his injuries had anything to do with that.
(11)I turn then to the evidence he gave as to his employment by Drake Food Markets at Torrensville, to the warnings he received and, in particular, to the exhibit D3, what I will call “the reference letter”.
The plaintiff contended that he was not able to fully perform his work in the fruit and vegetable shop because of his injuries, that his under-performance led to various employer warnings and that it explained some of the contents of the reference letter.
In evidence, it emerged that he had worked in that shop before the accident and, even then, had received a formal warning for being too slow.
After the accident, he had worked for six months in a chicken shop but had afterwards returned to the fruit and vegetable business, well knowing its physical demands. This was in mid‑1999. Six months after that, he received another warning saying he was too slow. He said that prompted him to tell Mr Peri Karkatsalis, the manager, that his work capacity was limited because of injuries received in the motor vehicle accident. He elsewhere conceded, that he might have told Mr Karkatsalis of the accident and its consequences much later than that.
That evidence was confusing, because, later, there came into evidence the exhibit D2, which contained two written warnings given to him, both of them in the year 2000. The first one was dated 22 January and referred to previous verbal warnings given to him about talking to other staff members and his “working ability in the fruit & veg”. It complained of his not completing set tasks and being easily distracted.
Six months later, on 6 July, he received a second written warning relating to a “failure to listen and follow the managers instructions”.
He said that it was after the first of them that he had spoken to Mr Karkatsalis and told him of his injuries, yet the terms of the warning do not appear to me to focus upon any physical disability. After that, he said, there were no limitations placed upon his work procedures but he was told he could “go home early” when he wanted.
I have been unable to reconcile his evidence about this issue with the documents tendered.
That history also needs to be considered in the context of the reference letter D3. The provenance of that document was much in dispute at trial. On the plaintiff’s account, the letter came into existence in these circumstances (T/S 240):
I approached Peri and – firstly, I asked my lawyer if it was okay that I wrote the letter. I got the letter written – or got the letter written and she said as long as the manager agrees on it to get one.
He was asked why he had obtained it and he said “For reference for the lawyer”, “for the purpose of … getting compensation” (T/S 240). He said he had typed out the text of the letter himself, after having a long chat with Mr Karkatsalis. He had then shown it to Mr Karkatsalis, who had said it was fine and signed it.
He agreed that there was one claim made in the letter that was not correct and that was the reference to his being offered a position as assistant manager in the fruit and vegetable section – that had never happened, but otherwise, he said, the letter set out true facts.
When its contents were put to him, however, he then seemed to suggest that they were all correct. I found that to be dissembling.
He was tackled on a number of fronts about the document. It was suggested to him that Mr Karkatsalis had never signed the letter, but he disputed that. He agreed that in consequence of an assertion by his employer that it was not Mr Karkatsalis who had signed the letter, he had lost his job, but said he had, after commencing court proceedings, been reinstated, inferring, as I take it, that his assertion about Mr Karkatsalis’s signature was correct.
I am not called upon to make any formal finding about the signature on that letter, nor do I find it necessary to do so, but plainly the authenticity of the letter was put in issue. Its genuineness might simply have been resolved by calling Mr Karkatsalis or a person referred to as Nino, but that was not done and there was no satisfactory explanation for it. I infer that neither would have helped the plaintiff’s case.
The defendant called the risk manager of Drake Food Markets, Mr Wilkinson, and he said that Mr Karkatsalis had no authority to sign such a letter. Otherwise, he purported to relate some hearsay evidence about Mr Karkatsalis’s view of the other matter, but I will ignore it.
Having regard to all those matters, I should say that I have serious reservations about the authenticity of D3, particularly in the context that it was, on the plaintiff’s own admission, prepared by him for the specific purpose of assisting his compensation claim. Its contents are plainly self-serving and a number of them are simply not true.
On all the evidence, his employer was never in a position to comment upon his working capacity; that was always a matter for expert evidence, anyway. Further to that, the claims in it as to working hours are not supported by other evidence and it contains the blatant untruth that the plaintiff was offered a full‑time job as an assistant manager, a claim which the plaintiff first conceded was untrue but then sought, in some extraordinary manner, to justify.
Separately, he had said in examination-in-chief that his reason for transferring to Foodland at Fulham Gardens was because there was more work offered. That was patently false: he moved there in the wake of the fallout over D3.
That he was the effective author of the letter, whether or not it was signed by Mr Karkatsalis, speaks loudly of his preparedness to exaggerate and, indeed, deceive.
(12)I will comment elsewhere in greater detail about this, but the plaintiff was strongly challenged over his persistence in an occupation involving moderate manual labour, given his claimed disabilities.
His responses were unconvincing; namely, that he could manage the job, that his present supervisor, Nino, allowed him a degree of latitude with his hours and tasks, and that he was comfortable in such a protected environment.
Again, I heard no evidence supporting this; indeed, Mr Wilkinson said that he was the person who devised work programs for any employees with work restrictions, that he had never received any report or complaint about the plaintiff’s work, nor had he himself prepared any report or work program. He allowed that he would not ordinarily become aware of brief work absences by employees due to illness or incapacity, but regular absences over a period of time would come to his attention. The plaintiff’s position had not.
(13)Otherwise, the vocational evidence disclosed that the plaintiff was capable of tertiary study and of qualifying for less physically demanding work. He said in evidence that he had considered undertaking a Bachelor of Arts or a TAFE course and he had recently obtained a chauffeur’s licence. He had also recently registered with Jobseek. Why he had not done so sooner, was not explained.
On all the facts, it is plain that, apart from brief enquiries about other work and one or two brief attempts, he has made no serious attempt to pursue other employment avenues or qualifications and, indeed, he said in evidence that he really did not know what he wanted to do.
Those matters may not reflect directly on his credibility, but they do not sit easily with his claim that his injuries have foreclosed other career options.
In his affidavit of loss, he asserted that he had been offered several positions but had had to decline them. I heard little in evidence about that. I gained the impression that he is reasonably content where he is and not motivated to change his employment, labouring or skill levels.

I do not propose to list every other matter upon which I found his evidence unconvincing and unreliable. It is enough to say that the above matters led me to conclude that I could place very limited reliance upon what he told the court and, indeed, upon the histories relied upon by those experts he called.
In the context of those observations, I turn then to discuss the plaintiff’s asserted injuries.
INJURIES
Knees
I accept that in consequence of the collision, the plaintiff struck his knees on the dashboard of the car and that it was a forceful blow which actually caused some damage to the car. He complained of that injury upon seeing his general practitioner, Dr Vinci, that same afternoon and its progress is detailed in his report and that of Dr Penta.
In his first consultation, Dr Vinci observed lacerations to both knees and detected soreness over the tibial area. He diagnosed soft tissue injuries and prescribed rest and anti‑inflammatory and analgesic medication.
He did not then see the plaintiff for five months and only spasmodically after then. In his reports of 7 and 18 June 1998 and 18 February 2000, he makes no mention of any further complaints by the plaintiff about his knees and in his report of 8 July 2002, merely suggests the plaintiff had a “knee” problem for “a period of time after the accident”. That same report discloses, however, that he had in fact referred the plaintiff to Dr Penta about his knees – but in August 2001. I will come to Dr Penta in a moment, but what is unexplained is how Dr Vinci reports, as he does in 2002 (P19), that there has been a “consistent” history of knee pain when it is not recorded by him or, indeed, reported upon by anybody between October 1997 and August 2001.
In the meantime, Dr Vinci had, in early 1998, referred the plaintiff to an orthopaedic surgeon, Dr Munyard, but apparently with respect to continuing neck symptoms only. It seems the plaintiff did not then complain to Dr Munyard of any knee problems (or, indeed, until later in that year, of back problems) – see his reports of 2 March 1999 and 21 September 1999. Dr Munyard appears to have first examined the plaintiff’s knees in 2001 and only after receiving a solicitors’ letter asking him to “assume” the plaintiff had suffered continuing pain and discomfort in them (see his report of 9 May 2001). Even then, he concluded the plaintiff had not suffered any loss of knee function in consequence of the accident.
For reasons which are not obvious, Dr Vinci referred the plaintiff to a different orthopaedic surgeon, Dr Penta, in August 2001 following his then complaint of knee pain. The plaintiff then gave Dr Penta “a long history of bilateral anterior knee pain which began approximately 4 weeks (after the) accident” and which was “activity related and aggravated by squatting and walking upstairs … discomfort after running and standing for prolonged periods” (P34). Having conducted a full examination, Dr Penta thought there were indications of bilateral patello-femoral chondromalacia and he recommended physiotherapy and strengthening exercises. He suggested a review within three to six months if the knees did not respond to that. He thought it was possible that the symptoms and complaint were consistent with having been caused in the accident and he expected they would stabilise after six months of physiotherapy. He did not expect that they would affect the plaintiff’s capacity for employment as a fruit and vegetable assistant.
Strangely, none of this history had been commented upon or apparently recorded by Dr Vinci in the period I have mentioned, yet, in consequence of Dr Penta’s report to him, he later reported that the plaintiff’s knee pain had at times been aggravated by his work – an observation which was not based on anything stated by Dr Penta and which, indeed, seemed at odds with Dr Penta’s own observations:
(1)in P34, that he “would not expect Mr Caruso’s capacity for employment to be restricted because of his knee symptoms”;
(2)in P35, that “(h)is symptoms were not interfering with his activities of daily living or work”.
I return then to Dr Penta. He saw the plaintiff again in February 2002 and September 2003. The plaintiff again reported bilateral knee soreness and occasional clicking, but no swelling. He was not taking any analgesics and was not playing sport because of “back, neck and shoulder complaints” (P35). At that stage, Dr Penta concluded that medical treatment was not indicated, that his knee condition was stable, that there was no permanent loss of function, nor would his knees deteriorate or restrict his capacity for employment.
It is further worth noting that the plaintiff was seeing Mr Cook, a physiotherapist, from soon after the accident and until about July 2000 concerning his neck/shoulder/back complaints, but never complained of his knees. It was only after he saw Dr Penta in 2001, that he came back to Mr Cook with a request for treatment concerning them. He was given exercises.
The defendant called no evidence relating to the plaintiff’s knee condition, but, even so, I was far from satisfied as to the asserted seriousness of this complaint. I am satisfied there was some initial laceration of the plaintiff’s knees and some bruising, but the absence of any complaint to Dr Vinci or Mr Cook about his knees for some four years, his failure to mention anything at all to Dr Munyard about them (until much later, when Dr Munyard was asked to “assume” a knee injury), his first mention of them to Dr Jezukaitis in 2003 and the lack of clear correspondence between the reports of Dr Vinci and Dr Penta as to this injury, cause me grave reservations as to its continuing impact – especially given that, in the meantime, the plaintiff had engaged in outdoor and indoor soccer, gymnasium, go‑karting and physical labour.
I conclude that in the accident, the plaintiff suffered soft tissue injuries to his knees, which caused him a measure of pain and discomfort for a short while after the accident but then subsided. I am not persuaded that symptoms emerging in or after 2001 are related to the accident, nor am I satisfied he has any permanent disability to his knees attributable to the accident or in any event impacting upon his work capacity.
Upper back and shoulders
It was not in dispute that in consequence of the accident, the plaintiff suffered soft tissue musculo-ligamentous injuries to his neck, shoulders and thoracic spine, that they have caused him various levels of pain and discomfort ever since and have left him with some loss of function of his cervical and thoracic spine.
Indeed, the extent of the resulting disability did not appear to be much in dispute: both Drs Munyard and McCulloch agreed that he had suffered loss of function of his cervical spine of about 5% and that he did not have any loss of function of his shoulders. Dr Jezukaitis also found there was a 5% disability and Dr Leonello suggested a 10% level. I prefer the evidence of Drs Munyard, McCulloch and Jezukaitis and find the plaintiff has a 5% loss of function of his cervical spine.
Although the plaintiff asserts in his pleading that there is additionally a loss of function of 5% in his thoracic spine, the evidence as to this was limited and, in particular, none of Drs Munyard, McCulloch or Leonello supported it. Dr Jezukaitis did, however, at a 5% level, and Dr Hart, who was not called, suggested a figure lower than 5%. Given the proximity of that region to the neck and the clear and consensual opinions of Drs Munyard, McCulloch and Leonello, I am satisfied there is no discrete or permanent thoraco-spinal disability.
Further, on the basis of the opinions of Drs Munyard and McCulloch, which I prefer, and further having regard to my lack of confidence in the plaintiff’s credibility, whilst I find that this cervical disability restricts him in certain movements and from time to time causes him pain and tightness after prolonged exertion, I am not satisfied it is, as he claims, ever‑present.
I am satisfied, however, that he can carry out his physical work and reasonably extensive exercise regime and that he does so without pain or aggravation.
Further to that, I am not satisfied that the symptoms this injury and disability produce have inhibited his social, study and sporting activities, either at all or to the extent he claims. I will return to this matter in due course.
Headaches
The plaintiff said that, in conjunction with those same injuries, he had suffered headaches for a substantial period of time after the accident and that they have continued to this date, albeit that their frequency has abated. Dr Munyard did not comment specifically upon this issue, but Dr Leonello expressed the view that persistent intermittent headaches were the result of his injuries without proffering an explanation why that was so.
For his part, Dr McCulloch agreed that persistent headaches are a likely consequence of upper spinal injuries of the kind suffered by the plaintiff, but in the short term only; they are generally produced by muscular tension which, he suggested, would soon abate after the accident, although he allowed they might return spasmodically after lengthy periods of exertion.
I have already concluded that the plaintiff has tended to exaggerate the nature, frequency and the severity of his symptoms and I am satisfied that this is so with respect to headaches. His complaints are quite at odds with the evidence as to his maintenance of his employment and his participation in sports, in particular his body‑building. The only expert evidence which addressed the dynamics and causation in any considered way came from Dr McCulloch and I prefer his opinion as to this.
I am satisfied and find that the plaintiff had headaches for a short period after the accident and that their likely cause was muscular tension resulting from his upper spinal injuries. I am not satisfied as to the plaintiff’s claim that they persist at the frequency he alleges, but I am satisfied that he suffers from occasional headaches following extended periods of exertion.
Lower back
As I have noted, immediately after the accident the plaintiff went to see his general practitioner, Dr Vinci. He did not then complain of any injuries in the lumbar spinal area but, plainly, did so when he saw a physiotherapist within days of that appointment. He then received physiotherapy treatment for neck and back symptoms and I am satisfied both were present.
I do not accept the plaintiff’s assertions that those symptoms have since continued, unabated or otherwise, and I find, indeed, that they did not trouble him again until mid‑1998, when he complained of them again. I so conclude for a number of reasons:
(1)my general lack of confidence in his credibility;
(2)he had seen Dr Vinci and, as well, Dr Munyard in the meantime, but had not complained to them of such;
(3)as I have already observed, in mid‑1998 the plaintiff acquired a go‑kart and participated in competitive racing. Had he then been suffering problems with lower back pain, such a gesture would have been an odd one, indeed. Common sense and the limited evidence I heard about the dynamics of that activity, suggest it would not be tolerated or continued by a person suffering from any kind of back pain.
At all events, in order to qualify to participate in go-karting at competitive level, the plaintiff had to prove himself as a learner driver and he did that over the following six months, after which he gained a full licence to compete. This was in early 1999. On his account, he then competed for a short while but found he had to abandon the activity because of pain in his upper and lower spine.
At trial, the defendant pointed to the coincidence in timing between the commencement of competitive go‑karting and the re‑emergence of his complaints of lower back pain.
According to Dr McCulloch, such an activity was likely to have aggravated any existing spinal injuries and Dr Munyard was of the same view. I found this hardly surprising.
Dr McCulloch was of the opinion that if, indeed, there had been an early complaint of low back pain, then the plaintiff had likely suffered a lumbar ligamentous strain in the accident, which would likely have given rise to intermittent low back pain, notwithstanding that he did not tell Dr Vinci of it.
On this point, I am satisfied the plaintiff did, indeed, suffer low back pain following the accident and complained of it to his physiotherapist within days. I conclude that it is therefore likely that he did suffer a ligamentous strain in the accident and has since suffered occasional episodes of pain in that region.
I am not satisfied, however, that those symptoms are always present. The evidence of Drs Munyard and McCulloch as to the extent of any lower back injury was potentially conflicting. Originally, Dr Munyard had been of the opinion that it was at a 5% level and Dr McCulloch had been of the view that if there had been an initial low back injury, the plaintiff might have been left with “mild intermittent low back pain”.
Just prior to trial, however, Dr Munyard obtained the results of an MRI scan of the plaintiff’s lumbar spine. They indicated a level of lumbar degeneration. He was of the opinion that this was consistent with trauma, and probably trauma of the accident. He concluded that the level of disability was greater than he first thought and was more like 10%.
In cross‑examination, he agreed that, with respect to the plaintiff’s symptoms, he relied upon the history given and the plaintiff’s credibility. He agreed the plaintiff had told him nothing about engaging in body‑building (although he was aware of his attendance at gym), nor about participating in go-karting. He could not explain why the plaintiff had not previously complained about his back, nor why he had not complained to the physiotherapist about low back pain after participating in go‑karting. He said that it was possible that the degenerative changes had been present in the plaintiff’s back but were asymptomatic, but then aggravated by go‑karting. He acknowledged there was some cause for concern about the absence of any complaint of symptoms between just after the time of the original accident and the time go‑karting began. He would not have expected the plaintiff to be lifting weights, had his injuries been as bad as the plaintiff had related them. As to the extent of their seriousness, he had relied upon the plaintiff’s claims and the solicitors’ letter requesting that he assume their seriousness.
When Dr McCulloch was called, he had had the opportunity to see those same MRI results and he took quite a different view from that of Dr Munyard. He considered that they were relatively “normal” for a young man of the plaintiff’s age. He said that statistics of x‑ray examinations suggested that at least 20% of persons of the plaintiff’s age had degenerative changes and the figure would likely be higher than that for MRI scans, because they were a more accurate diagnostic tool. He was very strongly of the view that the MRI scan was, in this instance, not indicative of past trauma. Had there been trauma, he would have expected a specific sign of it, such as an annular tear, but there was none such present here, and the image was indicative of no more than normal degeneration.
When the full history of the plaintiff’s lower back complaints was put to him, he said that if it was accepted, it indicated a ligamentous strain but no injury to the intervertebral disc. He said that participation in go‑karting or particular forms of exercise in the gym would likely also produce low back pain and upper body weight-lifting could additionally cause shoulder and neck problems.
In cross‑examination, he said that the plaintiff appeared to him to be clearly a person who engaged in muscle‑building work. His physique was not natural. He was challenged with Drs Vinci’s and Munyard’s opinions. As I see it, he reasonably discounted the opinion of the former because of his limited expertise in that matter and he otherwise suggested that Dr Munyard’s special interest was not in spinal work.
I must say I preferred the evidence of Mr McCulloch as to the origin and seriousness of the plaintiff’s lower back complaints and as to the relevance of the MRI findings. As with the claimed origin of headaches, he presented a more considered and logical opinion.
Whilst I therefore accept that the plaintiff suffered a ligamentous strain in his lumbar region, as a consequence of the accident, I prefer Dr McCulloch’s view that it soon resolved itself although it is prone to occasional aggravation after prolonged strenuous activity.
I am further satisfied it was aggravated by the plaintiff’s participation in go‑karting and he has likely aggravated it on occasions during his body‑building activities. I am satisfied that the present level of low back disability from which he suffers is 5%, a figure upon which Drs Jezukaitis and Hart agree.
Psychological/psychiatric
Approximately 12 months after the accident, the plaintiff was referred by his solicitors to Mr Calabrese, psychologist, who then saw him on 1 December 1998, 8 March 2000 and 31 May 2001.
At the first interview, he accepted a history that the plaintiff had missed some four to five weeks of schooling during Year 10 and that “consequently, his grades have slipped. The pain and discomfort in his back reportedly make it difficult for him to concentrate and pay attention in class …” (P26). He noted that the plaintiff had ceased his participation in soccer and go-karting and had changed his part-time work. He concluded that the plaintiff had suffered “a psychological reaction associated with the accident and the pain and difficulties relating to his injuries. This is causing problems with focus on school work and ability to concentrate and show appropriate stickability”. He thought the plaintiff required counselling and that he had a psychological injury “in the order of 10%”.
At the consultation in March 2000, he noted that the plaintiff was working three to four nights a week and, coupled with his schoolwork, that was a long day and the plaintiff was becoming tired. He suggested it would “be prudent to discontinue with the job in order to concentrate more effectively on his studies” (P27). At that point, the plaintiff was completing Year 12.
In his final consultation, he noted the plaintiff’s disappointing Year 12 results, a complaint that he was suffering pain as a result of his work in Foodland and, as well, headaches.
He remained of the view that the plaintiff was suffering a “10% residual psychological disability” (P28).
That conclusion was not particularly informative, but in his evidence he explained that the “psychological” symptom to which he was referring was a state of reactive depression consequent upon the motor vehicle accident. He said that his use of the word “depression” was in layman’s terms rather than a psychiatric diagnosis. He thought it was a reasonable response to the trauma and sequelae of the accident. He had had previous experience with high school students and hence had thought it advisable that the plaintiff abandon his part‑time work in Year 12. He suggested that the plaintiff’s feelings of inadequacy would likely have impacted upon his ambitions and job-seeking, and inclined him to stay in a safe role.
Plainly, he based these conclusions on the plaintiff’s given history and an assumption that his academic performance had fallen away immediately after the accident.
The force of his evidence was substantially undermined in cross‑examination. It emerged that he had an imperfect understanding of the plaintiff’s academic progress in the year immediately following the accident and had relied upon the claim that it had immediately fallen away, when such was not the case. Further to that, he wavered substantially on just what he had meant by using the term “psychological reaction”. He had first suggested he meant depression in layman’s terms, then he seemed to proffer the view that it was psychiatric depression and, finally, he thought the question of what kind of depression it was, was a matter open to debate.

It was apparent that he had never been told about the details, nor the impact upon the plaintiff’s physical and psychological wellbeing, of his failed jaw operation, nor about the need for further medical and dental treatments extending over a long period of time. On the plaintiff’s own evidence, that was a significant matter and it had plainly impacted upon his general mood, as well as resulting in absences from school, particularly during 1998.
The medical/dental problem being a partially cosmetic one, I have no doubt that, despite the plaintiff’s guarded responses on the topic, it also affected his self‑esteem and his level of activity in sport. Mr Calabrese was aware of no more than a brief reference to a jaw operation. Further, he had assumed that the plaintiff had followed his advice and given up part-time employment in Year 12, when in fact that was not the case.
I was not assisted by Mr Calabrese’s diagnosis and I favoured Professor Goldney’s approach to the matter, to which I will shortly refer.
For reasons which were never explained, concurrently with the plaintiff’s third consultation with Mr Calabrese, his solicitors also had him see another psychologist, Dr Bollard, who produced three reports, of June 2001, February 2002 and February 2003. In addition, he provided counselling to the plaintiff on a number of occasions. In his initial report (P8), Dr Bollard wrongly assumed (as it appears he was told this) that the plaintiff had stopped attending gymnasium “for fitness and enjoyment” as a result of the accident. Evidence from the plaintiff was not to that effect.
Dr Bollard thought the plaintiff had a high average level of intelligence and that he had suffered a temporary psychological impairment as a result of the motor vehicle accident. He had not suffered a post‑traumatic stress disorder, but had an adjustment disorder with depressed mood and he recommended counselling.
Following some sessions, the plaintiff saw him in early 2002 complaining about a setback in his condition and then said it had forced him to stop attending gymnasium and had obliged him to return for physiotherapy. He had also had to reduce his working hours in consequence.
The latter complaint was not borne out by the plaintiff’s evidence either and, indeed, I am satisfied that at that particular time, his working hours were simply at the whim of his supervisor, Mr Karkatsalis. In that interview, the plaintiff claimed that his strong physique was a genetic inheritance and that his injuries and the physical setback he had suffered, had cost him a job as an assistant manager in the fruit and vegetable section of Foodland – claims which I have found to be deliberately false ones. Interestingly, Dr Bollard noted that he seemed to be leading an active social life at that time. He recommended further counselling and did not consider there was any long-term psychological impairment.
He saw the plaintiff one year later. This time the plaintiff spoke of a reduction in his working hours but this was, of course, the time at which the plaintiff was in dispute with his employer over the exhibit D3. At that time, he noted that Mr Caruso appeared intent upon establishing a career for himself in Foodland and Dr Bollard thought his prognosis was excellent provided his physical disabilities abated. They were interlinked.
In his evidence, Dr Bollard allowed that the plaintiff complained of being depressed, but it was not a clinical depression, rather it was a sense of sadness and loss over his inability to participate in sport and further a career in a trade, as his peers were doing. He said that he understood the plaintiff’s history to be to the effect that whilst he was still attending the gym, his overall level of activity was less than before the accident.
When they were put to him, he found the Year 10 school reports difficult to interpret. He would have expected a drop-off in performance before the end of that year. Certainly, he thought the plaintiff’s Year 12 score was below the plaintiff’s reasonable aspirations. He was, however, ready to accept that the plaintiff’s complaints about concentration, headaches and sleeping difficulties and inability to adhere to a work regime were related to his claimed level of physical disability and that the accident had therefore played a significant part in his disappointing academic achievement. This was probably an observation beyond his expertise. Otherwise, he thought it likely that the plaintiff was staying in his employment at Foodland because he was in a “comfort zone” there (T/S 159).
He had concluded, following his first consultation, that the plaintiff was suffering from an adjustment disorder with depressed mood. He had then provided counselling and in his following report, considered that the plaintiff’s “psychological condition” required more of such. Interestingly, however, and having conducted further psychological testing, he went on to say of the plaintiff that “…his primary vocational interests (and aptitudes) lie in areas where there is much less physical demand on his body than his present occupation” (P9).
In cross-examination, he said he thought the plaintiff had presented to him genuinely.
It was obvious, he thought, that the school letter inviting a parent interview (P3) implied poor performance. I am not sure of his basis for that conclusion and I am not prepared to accept it on the face of the document itself. Indeed, he was then presented with a letter written in similar terms but where the plaintiff had obtained more favourable results. He then seemed ready to accept that the formal terms of such letters were perhaps more neutral than he had previously regarded them.
It then emerged, somewhat remarkably, that he had never been told about the plaintiff’s part-time work during Years 11 and 12, or at least the full extent of it. That did concern him in terms of the completeness of the history he had been given, particularly when it was coupled with the claim by the plaintiff that he was tired over that time and had trouble sleeping. Had he known of that work, he would generally have agreed with Mr Calabrese’s advice to cease it. He agreed that it could have contributed to the plaintiff’s poor Year 12 performance. He further agreed that the complications arising out of the plaintiff’s jaw operation might have impacted upon his studies.
He was not aware that the plaintiff had returned to playing soccer for his school during Year 12 and he thought that was important, nor was he aware that the plaintiff raced go-karts during 1998. He had first assumed that the plaintiff’s activity in football and fitness had stopped as a result of the accident, although at a later stage in his consultations he became aware that the plaintiff had resumed some gym work and played soccer sporadically. He did himself question the plaintiff’s claim that his physique was a genetic quality. The plaintiff had told him at the first consultation that he had not participated in any sport since the accident.
Having had related to him some of the evidence given by the plaintiff as to his participation in gym activity, he said he now had some reason to question the history he had been given.
Whilst I thought Dr Bollard did his best to remain objective in the matter, it became clear as cross-examination proceeded that there were many assumptions upon which he had relied, but which were simply not borne out by the evidence. That, of course, went to the reliability of his opinion.
The defendant had the plaintiff examined by Professor Goldney in 2003 and he submitted two reports. At the time of the initial report, the plaintiff was in dispute with Drake Foodland over his dismissal from the Torrensville store. He also advised that his social life had changed as a result of the relationship with his new girlfriend. Professor Goldney was sceptical about Mr Calabrese’s diagnosis of “psychological problems” and pointed to the fact that Dr Bollard had not himself sought to identify any particular psychological disability.
He was of the view that the plaintiff had not suffered any specific psychiatric condition in consequence of the accident or his injuries, but he allowed that there may have been a level of emotional distress caused by the accident and its consequences.
That opinion coincided rather more closely with Mr Calabrese’s initial observations, namely, that there was a level of depression, as understood in layman’s terms, and, indeed, it appeared to me to come close to Dr Bollard’s view in 2001 that Mr Caruso’s condition did not warrant a psychiatric diagnosis of depression.
In the end, I find myself unable to accept Dr Bollard’s conclusion that the plaintiff suffered from an adjustment disorder with depressed mood. It was based on a history and series of assumptions which were, in too many respects, incomplete and inaccurate, it was specifically rejected by Professor Goldney and it received only very limited support from Mr Calabrese (who, himself, relied upon information since shown to be incomplete and inaccurate).
I prefer the evidence of Professor Goldney and conclude that the plaintiff, in consequence of the accident and his injuries and, indeed, further, in consequence of his failed jaw operation, suffered from a level of emotional distress and disappointment for some years after the accident (probably, on Dr Bollard’s observations, until the end of 2001). He is to be compensated for that, but it never became elevated to the level of a psychiatric condition, nor am I satisfied that it contributed, in any material way, to the deterioration of his academic progress at school or his choice of careers.
THE PLAINTIFF’S DISABILITIES
I have thus far concluded that in consequence of the accident, the plaintiff suffered:
(1)soft tissue injuries to his knees, which caused a measure of pain and discomfort for several months after the accident but then resolved. I am not persuaded that they caused or contributed in any way to his poor performance at school or to any loss of earning capacity, but I am satisfied they inhibited his participation in school soccer during Year 10;
(2)soft tissue musculo-ligamentous injuries to his neck, shoulders and thoracic spine with resulting headaches, but that these injuries resolved by 2001 save for a continuing and permanent loss of function of 5% of his cervical spine, which limits him in some movements and from time to time causes him symptoms of pain and tightness after prolonged exertion;
(3)a ligamentous strain injury to his lower back, which became symptomless within a short time but was then aggravated by his participation in go‑karting in mid-1998. It still causes him mild intermittent low back pain and some restriction of movement and represents a permanent loss of function of 5% of his lumbar spine;
(4)a level of emotional distress which never amounted to a psychiatric condition and which subsided by the end of 2001.
I am not satisfied the plaintiff suffered any other injuries or has any other disabilities in consequence of the accident.
I should then consider what impact those injuries and their consequences have had on the plaintiff’s schoolwork, career options, economic opportunities and social and sporting interests.
- schoolwork and career options
Near the end of 1999, the plaintiff’s performance in Year 10 at school began to deteriorate and that slide continued through Years 11 and 12. His matriculation results were relatively poor and, in consequence, he says, his tertiary and career options became substantially limited. He has sought to attribute that falling away and its consequences to his inability to concentrate or focus upon his studies because of tiredness, pain and discomfort occasioned by his injuries. I am simply not satisfied that has been shown.
In the first place, it emerged that for nearly 12 months following the accident, the plaintiff’s level of achievement at school remained steady, that is to say, it continued much as it had done before the accident. During that year, he had to cope with both the consequences of the accident and his failed jaw operation, the latter itself involving disappointment, annoyance and numerous follow-up attendances and procedures, and yet it appears he managed to do so, to participate in competitive go‑karting and achieve at the same level as he had done previously. It was only after then that his progress began to stall and there is simply no evidence of any adverse development in his physical or psychological wellbeing corresponding with that decline.
Secondly, I am not persuaded that his injuries were of sufficient severity to impair his capacity to study. The expert opinions which are to the contrary are, as I have found, based on incomplete information and assumptions which have not been proved or have, indeed, been discredited. Otherwise, the plaintiff’s credibility on this issue, as with many others, was substantially undermined by the matters I have referred to and I simply do not accept it.
Thirdly, it is evident that the plaintiff’s failure to perform to his reasonable academic expectations was occasioned by factors unconnected with the accident. Even prior to its occurrence, it is plain from reports that his teachers considered he was not applying himself to his studies and could do better. That situation did not change for nearly a year after the accident, but then, it appears to me, his performance did decline, I am satisfied because of a lack of interest in schoolwork. His reports indicated as much and, indeed, it is not without significance that he was then leading an active social life and that even in his part-time work, he was cautioned for being too slow, distracted and not completing set tasks.
Fourthly, one of his complaints to various medical examiners over those latter years was of tiredness and it is pertinent that, during Year 12, Mr Calabrese, psychologist, advised him to stop his part‑time work. He did not heed that advice because, on his account, work was an outlet from study and he wanted to keep his job in order to have money for clothes and his social life.
Fifthly, it appears to me that even if it were allowed that the alleged factors played some part in the decline of his academic performance, they go nowhere near explaining his apparent lack of interest in further qualifying himself or establishing any other career since the time he left school. In the context of my findings as to his physical injuries and his apparent aptitudes and taking account of his evidence, there is simply no good explanation for this. It appears that he has made some enquiries and one or two attempts to obtain other work or to qualify himself in minor ways, but it does not seem to me that he has approached the matter with any real purpose, seriousness or determination. Indeed, he appears to lack motivation and, notwithstanding his protestations to the contrary, seems quite content with his employment – not for the reasons advanced, that he feels safe there because of his physical disabilities and a protective environment, but rather because he has no wish to do anything else.
His mother gave evidence. She was, understandably, very supportive of him but, sadly, it appears to me that she has responded to his perceived problems by overprotecting him. She has not expected him to perform any simple chores at home and, unsurprisingly, he is not motivated to do much outside of it.
His brother has attempted to assist him by helping him to qualify in the field of computer editing and production of photographs, but it seems that having completed an initial course, he has not yet done anything about that either.
As to his current employment, the plaintiff sought to say that he had been given favourable working conditions by his employer but, as I discuss elsewhere, he called no evidence in support of that and, indeed, it appears that, in response to an apprehended criticism by the defendant of his work commitment, he was able to increase his hours and has since maintained a level of work that is more or less full‑time.
His evidence that he has taken days off work or gone home early, in many instances was not supported by any detailed recollection and it became of very limited use to me when other evidence emerged indicating that on some of those days he had obtained sickness certificates and then gone to the gym to work out.
Given his apparent ability to respond to defence criticism of his working hours by adopting and maintaining full‑time duties, I have no confidence in his claim that he is unable to work full‑time as an assistant in the fruit and vegetable section of Foodland at Fulham Gardens.
I am satisfied and find that, from the time he left school, he has had an interest in and the ability to undertake further studies, including tertiary studies, and to pursue careers which would involve him in minimal physical activity or lighter duties than he currently performs and would provide greater financial reward. He has simply chosen not to pursue them and that is not a decision for which the defendant should be held accountable.
That is not to say that he has suffered no loss of earning capacity; on all the evidence I am satisfied that he is precluded from carrying out any occupation involving heavy labour and he is to be compensated for that. I reject the opinion of Mr Nandoskar (P7) that he is fit only for sedentary to light work and I do so because of my general lack of confidence in the plaintiff’s credibility, the inadequacy and inaccuracy of the history provided by him to Mr Nandoskar and the reliance Mr Nandoskar must necessarily have placed upon it, and my satisfaction that the plaintiff is currently and successfully performing a moderate or medium range of labouring duties in his employment and is capable of continuing to do that indefinitely.
Much the same can be said of the opinion of Ms Douglas, which, for the same reasons, I reject.
- social and sporting
I am satisfied the plaintiff showed promise as a soccer player and I am further satisfied that following the accident, he was prevented from playing it for two years and then restricted in the extent of his participation in it in his final year at school. He has since played games of indoor soccer on an occasional basis, but I am satisfied that because of his injuries he is reasonably prevented from playing soccer at a higher level and that he had reasonable aspirations of achieving that. I am not satisfied on the evidence that he has thus been deprived of an economic opportunity, but he is nonetheless to be compensated for the lost chance to enjoy the fulfilment of his sporting ambitions in this area.
I am likewise satisfied with respect to his aspiration to engage in go‑kart racing.
I am not persuaded on the evidence that other sporting activities in which he was interested are now denied him, although I would accept there was a brief period after the accident when that was so.
As to his social activities, I was not persuaded by his evidence that they have diminished in consequence of the accident. On all the evidence, it appears to me that he led a normal and an active social life until he formed a relationship with a girlfriend whose parents have strict views about her freedom. In consequence of that, and that only, he has chosen to restrict his social activities.
DAMAGES
The plaintiff seeks damages for pain and suffering and loss of enjoyment of life, past and future economic loss, voluntary assistance, and medical and other expenses, both past and future.
Non-Economic Loss
Pursuant to s.35A of the Wrongs Act 1936 as amended (now s.52 of the Civil Liability Act), I must fix a numerical value to reflect his non-economic losses. Having regard to the findings I have made elsewhere, that figure will be 8. The relevant multiplier is $1,550, hence this assessment is in an amount of $12,400.
Loss of Earning Capacity

I am satisfied on all the evidence that the plaintiff’s neck and lower back disabilities are likely to prevent him from engaging in heavy manual labour. He is currently coping with manual labour because it is of a moderate kind. He claimed in evidence that he had had a career aspiration to undertake a trade and that that avenue was now foreclosed to him, because of the heavy physical demands of such work.
That topic was commented upon by Mr Nandoskar, who opined that the plaintiff could not undertake trades such as cabinet‑making, carpentry and plumbing, as they were beyond his limited physical capacities. He was even of the view that the plaintiff might experience postural difficulties in his sedentary work but, on that point, he relied upon assumptions about the extent of the plaintiff’s disabilities which I have rejected. Even so, I am satisfied that the plaintiff cannot now undertake certain trades, being those requiring heavy manual tasks.
There was no attempt made at trial to detail all of the recognised trades, their physical demands and the level of the plaintiff’s interest in them, but the report of Sandra Douglas of Career Focus (P12) did discuss some which were open to him; indeed, she listed a significant range of career “Job Matches”. I heard no detailed evidence from the plaintiff commenting upon each of them.
Generally speaking, I considered that the plaintiff’s evidence as to considering or accessing other work or career options was sketchy and unsatisfactory.
He spoke of going with a friend who was a floor sander and discovering that work was too heavy for him. He also worked as a car mechanic for a few days and found it too physical. Neither of those decisions appears to have been unreasonable.
He then spoke of his attempt at modelling, one which was unsuccessful, not because of his injuries, but because of limited work opportunities.
Remarkably, and despite his claims about the difficulties of his work in the shop, he did not register with Jobseek until 2002 or 2003 – he was not sure when, but at all events, some few years after leaving school.
He had only recently obtained a chauffeur’s licence, but had not yet been able to exploit it.
He had at one time applied for a job in an engineering firm and there was a TAFE course associated with it. He did not get the job, but nor had he been interested in it.
He was pressed in cross-examination about efforts he had made to access TAFE courses generally and the histories of such he had provided to the doctors. His responses on this topic were vague to the point of prevarication and I concluded that he had not in fact made any such efforts, he had merely thought about making them.
He had also thought about doing an Arts degree and thereby accessing his real interest in architectural studies. He had actually gone to enrol in that degree but at the last minute had pulled out. He had wanted more time to think. That was in 2001. He had done nothing about it since and still did not know if he wanted to do it. He did not know why.
It was the same with other TAFE courses; he did not know if any of them would interest him.
He had then done the five-week Photo Shop introductory course with his brother, but was still waiting for his certificate and did not appear to know if that work was for him.
He had not really decided what he wanted to do. At T/S 529:
I have thought about a lot of things, but I have never had really something that is pushing me in that direction that that’s what I would like to do. Even still working at Foodland is still a good job anyway, well, I think.
In the end and in the face of all this evidence, I concluded that the plaintiff was not particularly interested in or motivated towards obtaining any particular trade or professional qualification, nor any unskilled occupation. He appeared to me to be quite content to remain in his present position. On his own account, he can cope with it and he has the freedom to pursue his social life and his gym activities as he wants.
Whilst he has therefore suffered a loss of earning capacity, it is a difficult matter to assess the extent and the value of that loss. Heavy work is denied him and that includes some trades to which he aspired. On the other hand, he has chosen not to:
(1)fully exploit his acknowledged ability to complete tertiary study and thus qualify himself for work which would likely provide greater financial rewards than his present occupation;
(2)explore other skilled or unskilled work opportunities in occupations he could manage and which might offer greater financial reward.
Despite the limited evidence before me, I should attempt to express his loss of earning capacity as a percentage of his overall capacity, and I will do that. Taking account of his talents, aptitudes and interests, I consider he has lost 15% of his earning capacity.
Even so, I am faced with a problem in evaluating that loss, not dissimilar to that which faced the court in Giorginis v Kastrati (1988) 49 SASR 371. In that case, von Doussa J commented, at 374-75:
Where damages are claimed for a loss of earning capacity, the plaintiff must prove the extent of his pre-accident earning capacity, the extent to which that capacity would have been productive of income had the accident not happened, and the extent to which the compensable injuries have diminished his ability to exercise the pre-accident earning capacity …
There will be cases where the nature and extent of the loss alleged will make it difficult or impossible to adduce evidence that permits the court to proceed to calculate damages in a precise way. In these cases, the plaintiff is not to be deprived of damages because the evidence does not permit a mathematical calculation …
But cases where the damages are, by the nature of the loss, difficult to calculate, are to be distinguished from cases, like the present, where precise calculation is rendered impossible, and even broad assessment difficult, not by the nature of the loss, but by a paucity of evidence …
His Honour was there referring to a paucity of taxation and business records, but the circumstances of which he spoke have some resonance here, where the evidence as to the impact of the plaintiff’s lost earning capacity is poor, indeed, and precise calculation is impossible.
In Varnas v Peake (2001) 80 SASR 351, Gray J pointed to the need to identify the extent of the lost capacity and its economic consequences, and adopted remarks of the High Court in Husher v Husher (1999) 197 CLR 138 at para. 8:
No doubt the past may provide important evidence about the plaintiff’s earning capacity and what economic consequences will probably flow from what has happened. What a worker earned in the past may provide very useful guidance about what would have been earned if that worker had not been injured. But the inquiry is an inquiry about the likely course of future events and evidence of past events does not always provide certain guidance about the future. There may be many reasons why an injured plaintiff’s past work history provides no assistance in deciding what that plaintiff has lost through diminution of future earning capacity. The student who is yet to enter the workforce is an obvious case of that kind …
I keep those remarks in mind because, of course, the plaintiff was a student at the time of the accident, albeit that he was then working part-time in the occupation in which he remains.
Here, the plaintiff’s pre-accident work history and earnings are, on one view, of limited relevance because his professed ambition was to qualify himself by tertiary study for a trade or profession. Whilst I have found some trades are denied to him, I am not otherwise satisfied that the accident or its consequences have deprived him of the chance of pursuing a career in other trades or professions or in more rewarding unskilled occupations.
Even had I accepted his claim that the accident and its consequences caused him to perform badly in his final years of schooling and not qualify himself for a particular profession or trade, I would never have been satisfied that those consequences had continued to impact upon him: indeed, it seems to me that, at the very least, since leaving school the plaintiff has had the aptitude and the physical and mental ability to improve his matriculation score and access tertiary studies, or otherwise to undertake studies in a suitable trade, but has simply chosen not to exploit it. At best, his progress towards professional or other qualification would, if I had found it was affected by the accident, have been delayed by some few years only.
But that is not the case here. The plaintiff has, for reasons which I find are quite unconnected with the accident, taken very few steps to enhance or secure his earning capacity and appears to be content in his present occupation, an occupation which he can manage and which simply represents a continuation of the part-time work he undertook as a student. Viewed from that perspective alone, his lost earning capacity has a limited or nominal value only.
But even allowing, as I do, that he may revive an ambition to further qualify himself in a trade or profession, it remains difficult, indeed, to assess the value of his lost earning capacity with any precision because, for the most part, the exploitation of these aptitudes will render less significant, his incapacity for heavy manual work.
I can do no more than fix lump sums to reflect past and future economic losses.
As to his past losses, there was some evidence of his work absences, but it was confused by the evidence, which I accept, of Mr Karkatsalis’s idiosyncratic rostering practices and by the plaintiff’s unsatisfactory explanations for proved absences. I am not prepared to make any award for work absences during which he attended the gymnasium.
Doing the best I can, however, I will allow a sum which will reflect some allowance for lost working time attributable to his established injuries, along with a nominal provision for his lost capacity to earn more, over some of that period, by accessing heavier work or training in a heavier trade. That figure will be one of $7,500.
In lieu of interest on that figure I will allow a lump sum of $2,100.
As to future losses, I will not award a significant figure because the plaintiff remains capable of exploiting his residual earning capacity in a way which would more than compensate for the restrictions placed upon it by his injuries. I will allow a sum of $15,000.
Gratuitous Services
The plaintiff has sought a lump sum allowance for the gratuitous services provided by his mother during his initial recovery from his injuries and continuing to the present day. These include comforting him, administering massage, providing household services he would otherwise have performed, and arranging and taking him to doctors’ and associated professionals’ appointments.
I am satisfied his mother’s services were needed and provided in the early period of his recovery and particularly given his immature age. His mother’s evidence was to the effect that these ministrations have in fact continued to the present time: she has not stopped purchasing products and massaging his back and neck. She was unable to speak precisely about their regularity.
In addition, she spoke of carrying out household tasks for him like washing and hanging out his clothes, making his bed and not calling upon him to dry dishes.
Whilst I have no reason to doubt that aspect of her evidence, it painted the picture, to which I have earlier adverted, of a caring but overly protective mother. It simply makes no sense that the plaintiff can work full‑time in his current labouring occupation, attend gym regularly and play indoor soccer when he chooses, yet not make his own bed or wash dishes or clothes, nor am I satisfied, having heard Mrs Caruso’s evidence, that she would not have undertaken all these tasks, anyway.
Whilst I am therefore prepared to accept that the plaintiff’s mother reasonably cared for him and provided massage during the time the plaintiff was studying and also working, for the most part I am not satisfied these services have been necessary or reasonable since then. I will make no more than a nominal allowance for their provision since then.
I will allow a figure under this head of $3,500.
In addition, I will make an allowance for the moneys expended by the plaintiff’s mother in purchasing for him some Voltaren cream and cold packs – but not over the entire period – a knee strap and back support. I am not prepared to make any allowance for the purchase of a special chair, as I am not persuaded it was reasonably necessary. I will allow the sum of $300.
I will further allow for transport support under this head, but against the background that I am not satisfied of the necessity for a number of the non-medical treatments claimed. I fix a sum of $250.
The total award under this head is $4,050.
Interest on Gratuitous Services
I will allow a sum of $1,200 in lieu of interest on these services.
Special Damages
The plaintiff produced a schedule (P36) of special damages. It was agreed as to quantum, but, save as to certain claims, not as to necessity.
Against the background of my above findings, I will allow the following amounts:

Provider

Allowed

Medicare

Motor Accident Commission

Plaintiff

Benson Radiology

-

$1,077.20

-

Dr G Vinci

$279.20

$677.60

-

Dr A Munyard

-

$264.50

$120.00

Club Fitness, West Lakes

-

$11.00

-

Northcare Physiotherapy

-

$764.10

-

Stan Wachowski (chiropractor)

Nil

Nil

Nil

Dr J Bollard

-

$495.00

-

Mr J Calabrese

-

$561

-

Lakeside Physiotherapy

-

$152.60

-

Adelaide Aquatic Centre

-

-

$5.10

Health Touch

-

$180

$90

Rose Health

Nil

Nil

Nil

Dr M Penta

-

$134.60

$48.10

K P Fitness

Nil

Nil

Nil

Voltaren Gel

-

-

$13.50

Leonie Leate

Nil

Nil

Nil

Dale Wellcoat

Nil

Nil

Nil

P Tietjens

Nil

Nil

Nil

Dr S Aidinis

-

$195

-

Seaton Pharmacy

-

-

$3.80

Dr T Mittiga

-

-

$49.80

Perrett Medical Imaging

-

-

$384.00

        TOTALS

$279.20

$4,512.60

$714.30

Payable to Medicare  $279.20
                 Payable to Motor Accident Commission           $4,512.60
                 Payable to plaintiff  $714.30
  ________

Total: $5,506.10

Special damages are thus assessed in the sum of $5,506.10, subject to any directions sought as to repayment of sums to Medicare and Motor Accident Commission.
Future Medical Expenses
On the basis of my above findings, I will make a small allowance for the prospect of the plaintiff requiring future physiotherapy, some doctors’ appointments and expending moneys on medication. It will be the sum of $3,000.
SUMMARY
Non-economic loss  $12,400.00
        Loss of earning capacity
  - past  $7,500.00
  - future  $15,000.00
        In lieu of interest on
  past loss of earning capacity  $2,100.00
        Gratuitous services  $4,050.00
        In lieu of interest on gratuitous services               $1,200.00
        Future medical expenses  $3,000.00
        Special damages  $5,506.10
  __________
TOTAL:  $50,756.10
There will be judgment for the plaintiff in the sum of $50,756.10, including interest, and I will hear from the parties as to costs.

Provider	Allowed
Medicare	Motor Accident Commission	Plaintiff
Benson Radiology	-	$1,077.20	-
Dr G Vinci	$279.20	$677.60	-
Dr A Munyard	-	$264.50	$120.00
Club Fitness, West Lakes	-	$11.00	-
Northcare Physiotherapy	-	$764.10	-
Stan Wachowski (chiropractor)	Nil	Nil	Nil
Dr J Bollard	-	$495.00	-
Mr J Calabrese	-	$561	-
Lakeside Physiotherapy	-	$152.60	-
Adelaide Aquatic Centre	-	-	$5.10
Health Touch	-	$180	$90
Rose Health	Nil	Nil	Nil
Dr M Penta	-	$134.60	$48.10
K P Fitness	Nil	Nil	Nil
Voltaren Gel	-	-	$13.50
Leonie Leate	Nil	Nil	Nil
Dale Wellcoat	Nil	Nil	Nil
P Tietjens	Nil	Nil	Nil
Dr S Aidinis	-	$195	-
Seaton Pharmacy	-	-	$3.80
Dr T Mittiga	-	-	$49.80
Perrett Medical Imaging	-	-	$384.00
TOTALS	$279.20	$4,512.60	$714.30