Celenza v Stockdale
[2007] WASCA 77
•10 APRIL 2007
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CELENZA -v- STOCKDALE [2007] WASCA 77
CORAM: STEYTLER P
WHEELER JA
PULLIN JA
HEARD: 15 FEBRUARY 2007
DELIVERED : 10 APRIL 2007
FILE NO/S: CACV 21 of 2006
BETWEEN: ANTHONY UMBERTO CELENZA
Appellant
AND
STUART STOCKDALE
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :EATON DCJ
Citation :CELENZA -v- STOCKDALE [2006] WADC 3
File No :CIV 3011 of 2002
Catchwords:
Damages - Traffic accident - Extent of injuries - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr K J Bradford
Respondent: Mr J R Brooksby
Solicitors:
Appellant: Bradford & Co
Respondent: Greenland Brooksby
Case(s) referred to in judgment(s):
Nil
JUDGMENT OF THE COURT: This is an appeal against the judgment of Eaton DCJ who awarded damages to the appellant for injuries arising out of a motor vehicle accident. The respondent admitted negligence, but denied that the appellant suffered the loss, injury or damage pleaded. The trial was conducted between 3 and 7 October 2005. Earlier in that year, the respondent gave notice of intention to amend his defence to plead that the accident was of "such a minor nature as to be unlikely to have caused any or any significant injury to the Plaintiff". Leave to amend in those terms was granted on 14 July 2005.
The evidence relating to the accident
The accident happened on the Narrows Bridge. The appellant was driving a Toyota Dyna truck which weighed about four tonnes. He gave evidence that he was travelling at a speed of about 35 to 40 kilometres. It was raining and the road was wet. He saw that there was an accident ahead and he had to bring his truck to a stop.
The respondent was driving behind him in a Toyota Town Ace van which weighed about one tonne. The respondent applied the brakes but he "skidded slowly into [the back of the appellant's truck], just slow motion". The respondent gave evidence‑in‑chief that he was travelling at about 15 kilometres per hour before applying the brakes, and in cross‑examination said he might have been doing 20 kilometres per hour ([32]). He gave evidence that, at the point of impact, he thought he had slowed to a speed of about 5 or 6 kilometres per hour. The plastic bumper on the respondent's truck was smashed upon impact and his windscreen cracked on the right‑hand side. The cost of repairing damage to his vehicle was approximately $3000. The damage to the appellant's truck was slight. It involved a "piercing dent in the rear steel step" [12]. The dent was about "half the length of a fingernail or about 5 or 6 millimetres" deep.
The appellant was concentrating on the traffic ahead and watching the accident scene just before the impact, so he did not see the respondent's vehicle in the rear‑vision mirror before it made impact with the appellant's truck. The appellant said that he "felt someone hit me at the back and I lifted up in the seat and the truck lurched forward and I lurched back into the seat" ([9]). He gave evidence that because the brakes were on, his vehicle rocked forward on its suspension without the tyres rotating. He said that he felt a "completely strange new pain" [10].
The respondent was also asked if his vehicle caused the appellant's truck to lift or move in any direction. He replied "Absolutely not. It did not. I sustained the actual force of the - the pushing of my vehicle in was the force of the - I doubt if the actual truck actually moved" [15]. Counsel for the appellant conceded that the trial Judge was bound to conclude on the evidence that the wheels on the appellant's vehicle did not move. The appellant alighted from his vehicle and went to inspect the respondent's vehicle. The respondent was still seated in the driver's seat of his truck.
The injuries suffered by the appellant
The appellant pleaded that his injuries consisted of:
"6.1Severe low back injury including a significant injury to his lumbar spine involving the myofascial structures, particularly the capsular and ligamentous structures supporting his lower lumbar and upper sacral intervertebral disc and posterior facet joints. There are clinical and radiological signs of damage caused to the L4-5 and L5-S1 intervertebral discs, with a right‑sided posterolateral L4‑5 disc protrusion and a broad based protrusion of the L5‑S1 disc and a small, right‑sided annular tear.
6.2Loss of sexual function.
6.3Adjustment Disorder with associated mood disturbance, depression and anxiety."
The statement of claim pleaded that the appellant suffered from a permanent disability being a loss of full efficient use of the back, including lumbar and thoracic spine, resulting in permanent disability in the function of his back, permanent restriction in undertaking social activities and domestic activities and permanent restrictions in undertaking employment activities. As a result, he claimed past loss of earnings and loss of future earning capacity.
In addition to the appellant and respondent giving evidence, a large number of medical practitioners gave evidence. Some were treating doctors and some were retained to express opinions for the purpose of the trial.
There was no doubt that when examined by the doctors the appellant was suffering from a disc protrusion at L4/5 and an annular tear at L5/S1. However, the issue was whether these were caused by the accident. After a review of the evidence, the Judge concluded at [108]:
"I am not persuaded on the balance of probabilities that either the disc protrusion at L4/5 or the annular tear at L5/S1 occurred in acute circumstances at the time of the collision on 31 May 2000."
His Honour concluded at [109]:
"… my conclusion is that at the time of that collision the plaintiff suffered a mild soft tissue injury to his lumbar spine which was productive of some pain. Having regard to the evidence of Dr Graziotti as to the natural course of healing of soft tissue injuries and to my substantial misgivings as to the plaintiff's claims of continuing pain I find that the plaintiff's injury and pain associated with it would have resolved over a period of six months."
Amongst the evidence relied upon by the trial Judge to reach this conclusion was some video‑surveillance film taken of the appellant sometime after the accident confirming medical opinion that he was able to move freely.
The evidence of Mr Van Der Meer and Mr Simms
Before turning to the grounds of appeal, I should mention the evidence of a Mr Van Der Meer, a civil engineer called by the appellant and a Mr Simms, a mechanical engineer called by the respondent. Before referring to their evidence, I should mention that the appellant gave evidence that, in his estimation, the respondent was either speeding or driving at a minimum speed of 40 kilometres per hour. Evidence was led that in a crash report form which he lodged with the Insurance Commission of Western Australia, he asserted that the respondent was travelling at 60 kilometres per hour and "approximately 60 kph" at the point of impact. In fact the appellant did not see the respondent's vehicle before the impact and he was not qualified to express an opinion about the likely speed. The appellant's assertion about the speed of the respondent's vehicle therefore had no evidentiary value. Not surprisingly the trial Judge did not accept the appellant's assertion that the respondent was travelling at the speed mentioned by the appellant.
Mr Van Der Meer was instructed that there was no appreciable forward movement of the appellant's vehicle on the road surface but that the vehicle moved forward on its suspension at the time of collision. He concluded that a 100 kilogram object such as a human body located in the front seat, would accelerate up and forward together with the vehicle.
Mr Simms' opinions were also predicated on the basis that the wheels of the appellant's vehicle did not rotate. He expressed the opinion that if the truck did not move forward or backwards, then an occupant of a seat in it could not move forwards or backwards. Mr Simms expressed the opinion that if the speed of the respondent's vehicle was 5 kilometres an hour, the appellant would hardly have felt the impact. Mr Van Der Meer agreed with that proposition. Mr Simms concluded that if the speed of the respondent's vehicle was more than 10 kilometres per hour, it was highly likely that the appellant's vehicle would have been moved forward. He expressed the opinion (at [31]) that:
"[T]he motions and forces imposed on the driver of the subject truck (which did not move) would be significantly less in a low speed rear end collision than in any of the following relatively common events:
(a)going over a speed hump in a shopping centre at walking speed;
(b)reversing into a loading dock buffer at low speed;
(c)driving over a culvert or ramped cross-over of the type commonly found in depots and warehouses."
At [40] of his reasons for decision the trial Judge said:
"Finally, on the matter of the circumstances of the collision, I am inclined to accept the defendant as a reliable and truthful witness and, as such, accept his evidence as to the speed of his vehicle immediately prior to the collision and at the point of impact. It does seem likely however that, given that he applied his brakes some 15 metres away from the plaintiff's vehicle on a wet road and skidded into the plaintiff's vehicle, there would have been little variation in his speed over that distance. I do accept his evidence that he was travelling at 15 to 20 kilometres per hour, but closer to 15 kilometres per hour immediately prior to braking. I do not accept that he was able to reduce his speed by braking such that at the point of impact, his vehicle was travelling at five or six kilometres per hour. I find, as a matter of fact, that the speed of the defendant's vehicle at the point of impact was about nine kilometres per hour, drawing some support for that conclusion from Mr Simms' calculation that a 300 millimetre crush on the defendant's vehicle would give a theoretical impact speed of approximately nine kilometres per hour, and that, in his opinion any impact speed above 10 kilometres per hour would have caused the truck driven by the plaintiff to move forward upon impact."
The grounds of appeal
The appellant's grounds of appeal are as follows:
"1The Learned Trial Judge erroneously accepted inadmissible belated opinion evidence of Mr Simms over objection and found that, upon the basis of Mr Simm's calculations, the speed of the Respondent's vehicle at the point of impact was about 9 kilometres per hour, and that any impact speed above 10 kilometres per hour would have caused the Appellant's vehicle to move forward upon impact.
Particulars
(a)The Respondent, prior to trial, amended his Defence to plead that the accident was of such a minor nature as to be unlikely to have cause [sic] any or any significant injury to the Plaintiff.
(b)No notice of expert evidence to support this plea was given by the Respondent.
(c)The evidence of damage to the Respondent's vehicle was withheld by the Respondent and only produced after closure of the Appellant's case.
(d)The Respondent's medical experts relied on the Respondent's version of speed at impact of 5 kilometres per hour without any reference to vehicle damage.
(e)Mr Simms' opinion amounted to reconstruction of the collision on numerous assumptions and a conclusion as the speed from assumed damage, usurping the function of the Learned Trial Judge, if such speed was ever relevant.
(f)The Learned Trial Judge failed to rule upon the objection to Mr Simms' evidence.
(g)Mr Simms' evidence was not and could not be put to any other witnesses.
2.The Learned Trial Judge erroneously then used the finding in Ground 1 above as central to credibility findings against the Appellant, thereby further denying procedural fairness to the Appellant.
Particulars
(a)Mr Simms' evidence was not and could not be put to the Appellant or his witnesses.
(b)The various estimates of speed of the Respondent's vehicle by the Appellant (when required to do so) were found to be a substantial and deliberate exaggeration when measured against the finding of fact of 9 kilometres per hour.
(c)Thus, it was the finding of the Learned Trial Judge that the Appellant misinformed medical practitioners as to his symptoms, despite that he was found to have suffered an injury.
3.The Learned Trial Judge erroneously and over objection placed significant weight on video surveillance evidence, of which no notice of its impact and relevance was given, which evidence was consistent with the Appellant's medical supervised exercise program.
Particulars
(a)The evidence was not shown to medical experts before the trial or, if it had, medical reports in this regard were belatedly produced.
(b)The evidence was not inconsistent with the Appellant's presentation.
4.The Respondent wholly failed to establish its plea referred to in Ground 1 above and despite having correctly found that the Appellant sustained soft tissue injuries in the collision, the Learned Trial Judge erroneously found that the Appellant recovered after 6 months, a fact which could not be reasonably inferred from any evidence."
The grounds of appeal reveal confusion of thought in the mind of the draftsman. Counsel for the appellant sought to argue in support of the grounds as they stood but, under close questioning from the Bench, agreed that particulars (b), (c), (d) and (f) to ground 1 had nothing to do with ground 1. Nevertheless, as the ground has not been formally abandoned, I will deal with the grounds as they stand. Grounds 1 and 2 range over five points, namely:
(a)the appellant's contention that he objected to the evidence of Mr Simms and that the trial Judge failed to rule on the objection;
(b)that there was late notice of Mr Simms' expert evidence;
(c)that there was belated discovery of evidence of repair costs to the respondent's vehicle;
(d)that the appellant was denied procedural fairness;
(e)that Mr Simms' opinion usurped the function of the trial Judge.
Ground 1
The alleged objection to Mr Simms' evidence and the alleged failure of the Judge to rule on the objection
Even though the appellant agreed that this allegation could not be sustained, I will deal with it because the ground alleged a failure by the trial Judge to make a ruling.
Mr Simms was called on the last day of trial. Before he was called, counsel for the respondent made lengthy submissions in support of an objection to the admission into evidence of the written report which Mr Simms had prepared dated 5 October 2005. The submissions made by counsel for the appellant at the trial in support of the objection are confusing, but they were understood by his Honour and by counsel for the respondent to be an objection on the basis that the opinions expressed in the report were opinions which usurped the Judge's function in deciding the ultimate issue, on the basis that the factual foundation for the opinions were not proven and possibly that Mr Simms was not qualified to express the opinions. However, at the end of the submissions during which the trial Judge tried to understand the basis of the objection, the following exchange was recorded at t/s 497 ‑ 500:
"EATON DCJ: It seems to me that there is evidence that this expert can give which is relevant. You would agree with that, wouldn't you?
BRADFORD, MR: I'm not objecting to the whole of his report.
EATON DCJ: No, no, okay. It's the extent to which he draws conclusions which are beyond his area of expertise or usurp the function of the court.
BRADFORD, MR: Or are based on too many assumptions, yes.
EATON DCJ: Yes, okay.
BRADFORD, MR: I'm happy that your Honour can distinguish when your Honour hears the evidence if your Honour is so minded between those three categories, but we are concerned that it becomes part of the evidence in the case and is on the record and leaves room to hang hats on when its character is inadmissible in terms of the authority.
EATON DCJ: Perhaps it's a matter of allowing the evidence to proceed and raising an objection at an appropriate time. I mean, are you going to be simply attempting to put in the report or are you going to be calling the evidence?
BROOKSBY, MR: I will be calling evidence to expand upon what he said in the report. I don't think your Honour did in fact have the supporting diagrams which I have provided to my friend which I will ask Mr Simms to expand upon.
Ultimately, your Honour, obviously it's in your discretion to accept or reject those conclusions; to the extent that they are inconsistent with provable facts they will be rejected by your Honour, but I think the evidence must be given and your Honour will essentially do what he will with it.
EATON DCJ: Yes.
BRADFORD, MR: Your Honour, it's a case that if a jury was sitting on this case they would either be influenced by the evidence or they would have to be directed not to be.
EATON DCJ: If a jury was sitting on a case we would have a voir dire.
BRADFORD, MR: Yes.
EATON DCJ: And we would hear the evidence in the absence of the jury and we would decide, perhaps with the full benefit of the cross examination, what was admissible and what wasn't and then the trial would proceed in the presence of the jury in accordance with the rulings that were made, but here I don't think we need to go to that
BRADFORD, MR: No.
EATON DCJ: So what I propose without making any ruling in advance is to leave it to [you to] do one of two things, either to object when you think something is objectionable in terms of the expertise of this witness, whether or not he's stepping out of it, or whether you think it's usurping the function of the court. I will be aware of that because you have raised those matters with me.
BRADFORD, MR: I choose to do it this way, your Honour, let the evidence happen and allow me to make submissions as to its validity or cross examine.
EATON DCJ: Yes.
BRADFORD, MR: By cross examining I am not accepting that it is within the ambit of admissible evidence, because otherwise we will have too many interruptions when Mr Simms goes through his report.
EATON DCJ: Yes. I haven't heard all of the evidence yet. I have seen the report and I indicated one small passage which I thought was inappropriate, and that was a comment about whether or not it was reasonable to accept what [the respondent] has said. He can direct his mind to the proposition, but he wasn't here to hear evidence and make the sorts of assessments that I have to make; so an expression of a view like that I take perhaps with a grain of salt.
BRADFORD, MR: Thank you, your Honour.
EATON DCJ: Rather than try and dissect the report now into admissible and non admissible, I think we should perhaps proceed to the evidence on the basis that you have suggested.
BRADFORD, MR: Yes.
EATON DCJ: Okay.
BROOKSBY, MR: All right. Your Honour, I will call Mr Martin Simms."
From that exchange, the point was reached where the respondent had withdrawn his objection and the matter proceeded on the understanding that he would object if he wished to do so during the course of evidence, or would cross‑examine and then raise objections later depending on what was revealed in cross‑examination. Mr Simms gave evidence, his report was tendered by the respondent along with some diagrams and he was cross‑examined. No objection was raised by the appellant. No submissions were made thereafter that his report was inadmissible. During closing submissions, counsel for the appellant commented on views expressed by Mr Simms but without any suggestion that his evidence was not admissible.
It is not therefore correct to say that the respondent objected to the report. It is not correct and it was never correct to say that the trial Judge failed to make a ruling.
Counsel for the appellant then contended in his oral submissions that the complaint was not about admissibility of Mr Simms' evidence as ground 1 contends, but about the weight to be given to the report. As I understood this unparticularised complaint, the appellant contends that the trial Judge should not have relied on Mr Simms' evidence to conclude that the speed of the respondent's vehicle on impact was 9 kilometres per hour.
The way the evidence unfolded was as follows. The appellant gave evidence about the speed of the respondent's vehicle but this can be ignored for the reasons I have given. The respondent gave evidence he was driving at 15 kilometres per hour when he began braking. This was the only direct evidence and his Honour accepted it and found that his speed was 15 kilometres per hour. The respondent said that his braking slowed the vehicle to 5 to 6 kilometres per hour at the point of impact. His Honour did not accept that. He concluded that braking on a wet road would not have reduced his speed to that extent. This conclusion was also supported by the evidence of both Mr Van Der Meer and Mr Simms that a collision at 5 kilometres per hour would hardly have been felt by the appellant. The trial Judge took Mr Simms' evidence into account in concluding that the speed to which the respondent's vehicle had slowed must have been under 10 kilometres per hour at impact for the reason that, if the speed had been 10 kilometres per hour or above, this would have caused the appellant's vehicle's wheels to move (which did not happen).
That seems entirely logical reasoning. The assertion by the appellant, that Mr Simms' evidence carried no weight, remained an assertion only. There was nothing which counsel for the appellant pointed to in his report or evidence which supported the assertion. This additional contention not covered by ground 1 must therefore be dismissed.
Belated notice - Mr Simms' report
The initial objection to Mr Simms' report (which was withdrawn) was not on the ground that there had been belated notice of his report and it was hardly likely that this could be so, because Mr Simms was retained and called as a witness as a result of Mr Van Der Meer's evidence. The appellant only sought leave to adduce expert evidence from Mr Van Der Meer at the conclusion of the second day of the trial. The appellant did not ask for an adjournment to further consider Mr Simms' evidence and did not seek to recall any witnesses. There was no decision made by the trial Judge and therefore no error made by him. There was no point in the appellant raising this contention which is contained in a particular to ground 1 and which appellant's counsel agreed did not support ground 1.
Belated disclosure of repair quotation
The respondent did not give discovery of documents and was not required to do so by the appellant. The repair documents were called for at trial by counsel for the appellant. After some delay, they were produced. Counsel for the appellant cross‑examined the respondent on the repair quotation and then tendered it as an exhibit. If the appellant felt that he was in any way prejudiced by the late production of this evidence, whether as a result of his inability to put the damage disclosed by the repair quotation to the respondent's medical evidence or otherwise, he may have been entitled to ask for an adjournment or to recall witnesses, but he did not do so. There was no decision made by the trial Judge and therefore no error made by him. There was no point in raising this contention, which appeared as a particular to ground 1, and which appellant's counsel agreed did not support ground 1.
Allegation that Mr Simms' evidence usurped the functions of the trial Judge
The issue to be determined was whether the appellant was injured at all or as badly as he said he was. The Judge's conclusion, that the defects in his spine detected on radiographs were not related to the accident, was based on medical evidence suggesting that these problems were long‑term degenerative problems. The radiological evidence revealed desiccation of the discs, which Dr Graziotti said was an age‑related phenomenon which did not occur in a short period of time. Dr Silver expressed the opinion that the radiological findings predated the accident. The trial Judge accepted Dr Graziotti's opinion. His Honour accepted medical opinion that the only injury caused by the accident was soft tissue injury. The speed at which the respondent was travelling when he collided with the appellant's vehicle was merely one factor which led his Honour to conclude that the appellant was likely only to have suffered soft tissue injury and that he recovered after six months.
Mr Simms did not express any opinion upon the ultimate issue, which was about whether the appellant's spinal problems and pain suffered as a result were caused by the accident or not. No error is revealed in relation to this point.
Ground 1 must be dismissed.
Ground 2 - Procedural unfairness
This ground is difficult to follow. It asserts that the trial Judge erroneously "used the finding in ground 1" as central to credibility findings against the appellant. The "finding in ground 1" is the finding that the speed of the respondent's vehicle at the point of impact was about 9 kilometres per hour. The appellant seemed to argue that there was a contest between the appellant and the respondent about the speed of the respondent's vehicle but, as I have explained above, there was no contest because the appellant did not observe the respondent's vehicle before impact.
However, the trial Judge did rely on evidence of the fact that the appellant had given various estimates of speed of the respondent's vehicle on occasions before the trial and did conclude that this adversely reflected on the appellant's credibility. The trial Judge did not err in doing so. The appellant told the Insurance Commission of Western Australia that the speed of the respondent's vehicle was 60 kilometres per hour. He told Dr Kent and Mr Slinger that the respondent's vehicle had been travelling at 60 kilometres per hour. These assertions were incorrect. When he had to give sworn evidence at the trial, his evidence was that he had not seen the respondent's vehicle before the collision and that his estimate was that the respondent was travelling at 40 kilometres per hour. However, he said that he had not seen the respondent's vehicle before impact. The appellant therefore had no foundation for any assertion about speed and yet, when it suited him, he made the assertion. His Honour found at [103]:
"[T]hat the [appellant] misinformed not only his treating medical practitioners but also those upon whom he attended for medico/legal purposes to varying degrees as to the speed of the [respondent's] vehicle at the time of impact, as to the severity of the impact and as to the effect of the impact upon him seated in the driver's seat of his own vehicle."
The appellant gave evidence about the disabilities that he suffered. His Honour did not believe the appellant's evidence. The appellant's false assertions about the effect of his injuries reached high water mark on 28 April 2004 when he made a claim at Centrelink for a disability support pension. His Honour observed at [76]:
"In that document (exhibit 7) he described his accommodation as being a sleep-out in his parent's home. When asked to list his disabilities the [appellant] said: 'Lower and upper back injury, lower right leg, use of leg'. Those disabilities, he said, began in May 2000. He said that he could not sit, stand, walk, drive a car or use public transport without difficulty, explaining that he had constant pain in the lower back which was still present even while on pain-killers. He said that his pain always made it difficult for him to lift, carry, bend and attend work or other appointments. It often made it difficult for him to operate everyday appliances, interact with others, sleep and manage his own personal affairs. It sometimes made it difficult for him to read, write, speak, hear, concentrate, remember, understand or follow instructions and care for himself. The only area where the [appellant] had no difficulty as a result of his injury was breathing."
Set against this was the video surveillance evidence, showing him moving freely, medical evidence indicating he had a full range of movement and the evidence that he was capable of quite strenuous exercise. This led his Honour to conclude that the appellant was organising his affairs with no intention of returning to his former occupation of courier driving, or, for that matter, to the workforce in general [110].
With that review of the evidence it can be seen that the fact that he misinformed medical practitioners as to his symptoms, as mentioned in ground 2(c), was just one piece of evidence that his Honour took into account in deciding that he did not believe the appellant's evidence about the consequences of the accident.
There was no denial of procedural fairness in the fact that Mr Simms' evidence was not put to the appellant or his witnesses. Counsel did not ask to recall the appellant or any witnesses for that purpose. Ground 2 must be dismissed.
Ground 3 - Video surveillance evidence
At the commencement of the trial the appellant foreshadowed an objection to the respondent tendering video surveillance evidence.
The videos were in the appellant's possession over a year before the trial. The transcript of the trial reveals that counsel for the appellant complained that, because no notice was given of any intention to tender the video, they had not been shown to doctors who were going to be called by the appellant to give evidence. Counsel for the appellant submitted that the doctors should not be confronted with the video evidence in cross‑examination. The respondent was then given the opportunity to show the video to the doctors before they gave evidence. Subsequently, the video was tendered without objection. The trial Judge did not err in taking the video evidence into account.
This ground must be dismissed.
Ground 4
I have set out above the finding that was made by his Honour rejecting the claim that the disc protrusion or the annular tear were caused by the accident. I have also set out his Honour's conclusion that the appellant suffered a mild soft tissue injury. The complaint is about the learned trial Judge's finding at [109] that the appellant's injury and pain associated with it would have resolved over a period of six months. The ground of appeal asserts that there was no evidence to support this finding.
It is true that there was no direct evidence to support his Honour's finding that he would have recovered after six months. The trial Judge was faced with the appellant who the trial Judge found exaggerated his symptoms. There was some medical evidence supporting the appellant's claim about the effect of the accident; however, this included doctors who had been informed by the appellant that the vehicle had struck his vehicle at a speed of 60 kilometres per hour, and who acted upon his description of symptoms, a description which his Honour refused to accept. Against that, there was evidence that the soft tissue injuries would have resolved within a short period of time. Dr Graziotti explained that soft tissue injuries "get better with time" (t/s 418); "the underlying pathology is likely to have settled down … over a 6 week period" (t/s 424); that pain he suffered when he saw Dr Graziotti [three years after the accident] was not related to the accident (t/s 424); that the accident had not caused his degenerative condition to become symptomatic (t/s 420); and that any injury associated with the accident would have resolved within a week (t/s 425). Dr Slinger's evidence was that soft tissue injuries usually recovered. Mr Bath expressed the opinion that the accident was not the cause of his symptoms. Dr Silver's opinion was that radiological findings predated the accident, and Dr Rosenthal's evidence was that he had overcome any injury that he might have sustained before 24 August 2004.
As a result, the contention in ground 4 that "it could not be reasonably inferred from any evidence" that the appellant recovered from his soft tissue injury after six months cannot be sustained. In fact, on one view of the evidence, the trial Judge was rather generous to the appellant in finding that he took six months to recover.
Ground 4 must be dismissed.
The appellant's appeal must be dismissed.
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