Christodoulakis v Aly

[2008] WADC 107

CHRISTODOULAKIS -v- ALY & ANOR [2008] WADC 107

Link to Appeal :

[2009] WASCA 136

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WADC 107
Case No:	CIV:428/2006	Heard:	10-13 MARCH 2008
Coram:	EATON DCJ	Delivered:	23/07/08
Location:	PERTH
No of pages:	30	Judgment Part:	1 of 1
Result:	Judgment for the plaintiff against the first defendant in the sum of $35 080 Judgment for the plaintiff against the second defendant in the sum of $22 310
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Parties:	NAPOLEON CHRISTODOULAKIS MAHMOUD HASAN ABBAS ALY MAREE-CARMEL MESTICHELLI
Catchwords:	Torts Road accident Personal injuries Aggravation of pre-existing injuries Assessment of damages
Legislation:	Motor Vehicle (Third Party Insurance) Act 1943
Case References:	Commission of Western Australia v Weatherall [2007] WASCA 264

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : CHRISTODOULAKIS -v- ALY & ANOR [2008] WADC 107 CORAM : EATON DCJ HEARD : 10-13 MARCH 2008 DELIVERED : 23 JULY 2008 FILE NO/S : CIV 428 of 2006 BETWEEN : NAPOLEON CHRISTODOULAKIS

Plaintiff

AND

MAHMOUD HASAN ABBAS ALY
First Defendant

MAREE-CARMEL MESTICHELLI
Second Defendant

Catchwords:

Torts - Road accident - Personal injuries - Aggravation of pre-existing injuries - Assessment of damages

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

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Result:

Judgment for the plaintiff against the first defendant in the sum of $35,080

Judgment for the plaintiff against the second defendant in the sum of $22,310

Representation:

Counsel:

Plaintiff : Mr K J Bradford
First Defendant : Mr J R Brooksby
Second Defendant : Mr J R Brooksby

Solicitors:

Plaintiff : Bradford & Co
First Defendant : Greenland Brooksby
Second Defendant : Greenland Brooksby

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

Insurance Commission of Western Australia v Weatherall [2007] WASCA 264

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1 EATON DCJ: Napoleon Christodoulakis was born on the Greek Island of Rhodes on 21 February 1948. He was one of seven children having three brothers and three sisters. He went to school to the age of 12 years. An older sister emigrated to Australia. He and his older brother joined her in Australia with her assistance. At the age of 17 years he arrived on a boat in Fremantle on 21 May 1965 with his brother. It seems that his older sister had married because his first job in a sawmill at Rivervale was with his brother-in-law who also worked there. He remained in that employment for two and a half years.

2 Mr Christodoulakis has been a resident of Australia since his arrival in Fremantle and has, to the present time, by and large, been gainfully employed in a range of jobs at a variety of places throughout Western Australia.

3 In 1975 he married an Australian girl from Mount Isa in Queensland. She was, by profession, a draughtsman. They have three children, all daughters. The oldest, aged 27 years, is a teacher, the middle daughter, aged 25 years, is an orthodontist and the youngest, aged 23 years, works in the legal services area. The two older daughters are married.

4 After working for a number of years for Jaxon Construction Mr Christodoulakis and his brother purchased a fish and chip business in Brighton Road, Scarborough in about 1982. They remained in that business until they sold in 1987. His brother had decided to go to the United States of America with his family to be with another sister. He then obtained work with seafood companies, the first being World Wide Seafoods at O'Connor and the second being New West Foods at Malaga. For the former he worked as a salesman and driver and for the latter he worked, initially, as a driver and then as a fish filleter.

5 On 12 July 2000 he suffered, he says, an injury at work while filleting fish. He was attempting to hang a shark weighing in excess of 16 kilograms on a hook preparatory to filleting. The fish slipped from the hook and he took the weight injuring, he says, his right shoulder. He was then working for New West Foods.

6 Mr Christodoulakis, following the injury, consulted Dr Cibulskis who referred him, following x-rays, to a Mr Kozak, an orthopaedic surgeon. Following an MRI scan Mr Kozak performed surgery on the shoulder on 27 September 2000. That was followed by a period of physiotherapy, medication and attempts at rehabilitation.

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7 On 8 August 2001 Mr Christodoulakis, while a passenger in a bus, sustained injuries when the bus collided with a vehicle ("the first motor vehicle accident").

8 On 12 August 2004 he was the driver of a Daihatsu Charade sedan travelling on Wood Street, Inglewood towards Beaufort Street when a vehicle drove unexpectedly in front of him causing his vehicle to collide with that vehicle resulting in him sustaining further injury ("the second motor vehicle injury").

9 On 3 March 2006 Mr Christodoulakis filed a writ of summons in this Court seeking damages in respect of injuries claimed in the first motor vehicle accident based on the alleged negligence of the driver of a motor vehicle.

10 On 16 May 2007 he, as plaintiff in that action, was granted leave to add to the action a second defendant being the alleged negligent driver on 12 August 2004 and was given leave to amend his statement of claim accordingly.

11 According to the pleadings before me the first defendant admits that he was negligent but denies that the plaintiff has suffered the loss, injury or damage pleaded, asserting further that if the plaintiff has suffered the loss, injury or damage pleaded in relation to his shoulder, they are not related to the first motor vehicle accident but relate to the accident at work on 12 July 2000.

12 Also, by the pleadings before me, the second defendant admits that the second motor vehicle accident was caused by her negligence and asserts that if, which is denied, the plaintiff suffered any incapacity subsequent to that second accident it was not the consequence of any injury sustained in it. The second defendant denies that the plaintiff sustained any injury as a consequence of the second motor vehicle accident or, alternatively, that he aggravated any underlying injury. In consequence, the second defendant denies that the plaintiff is entitled to the relief claimed against her or at all.

13 Both defendants plead that the plaintiff had a pre-accident history of:

(i) knee problems;

(ii) low back problems at L5/S1 level; and

(iii) an unrelated post-accident history of gout in the left knee.

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Both defendants plead that if the plaintiff suffers any problems in those areas now (which is denied) then the same relates not to either of the two motor vehicle accidents pleaded but to the pre-existing problems or (in the case of the left knee) gout.

14 The plaintiff's action was tried before me. He gave evidence and called Mr John Kagi, an orthopaedic surgeon, Dr R P Cibulskis, a general practitioner and Mr B S Slinger, an orthopaedic surgeon. In addition, the plaintiff relies upon the medical reports of Mr Kon Kozak, an orthopaedic surgeon which, in booklet form, comprise Exhibit 1, the various reports produced in the course of the plaintiff's rehabilitation by a company called Advanced Personnel Management, comprising Exhibit 2, and the medical reports of Dr Geoffrey Gee, a consultant in pain management, comprising Exhibit 15.

15 The first and second defendants rely principally upon the evidence of Mr Michael Alexeeff, also an orthopaedic surgeon.

16 On 11 August 2000, or shortly before, the plaintiff signed a workers' compensation claim form which may well have been completed, in terms of the bulk of the information provided, by his wife. That form is Exhibit 3. No specific date is attributed in that form to an accident. In answer to the question "When did you first seek medical attention?" the plaintiff advised "10th July 2000 at 6 pm" he having "suffered pain for several months". In answer to the question: "When did you first report the occurrence?" the plaintiff answered "12th July 2000 in the morning". He said that the occurrence occurred in the process room while he was filleting fish. The name of his medical practitioner was given as Dr Ray Cibulskis.

17 On 10 December 2001 Dr Cibulskis reported to Wesfarmers Federation Insurance Ltd, being the workers' compensation insurer of New West Foods. He indicated that he had been treating the plaintiff in relation to separate incidents. The first, he said, was a workers' compensation injury that occurred "prior to September 2000" in which the plaintiff sustained a "large, full thickness tear of the supraspinatus muscle of his right shoulder". The injury, said Dr Cibulskis, was sustained during the course of the plaintiff's employment at New West Foods. He had been referred to Mr Kon Kozak.

18 On 19 July 2000 Mr Kozak reported to Dr Cibulskis that the plaintiff had complained of six-months of tiredness in the right shoulder. According to Mr Kozak he was told by the plaintiff that he hurt his shoulder when pulling a fresh fish weighing 3 to 4 kilograms in weight.

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That does suggest an acute event although the first medical certificate issued by Dr Cibulskis referred to a "repetitive strain" injury. Mr Kozak indicated that he had requested an x-ray and a MRI scan of the right shoulder. On 15 August 2000 he reported to Dr Cibulskis that the MRI scan did indeed show a full thickness tear of the supraspinatus and the top half of the infraspinatus. Mr Kozak recommended an arthroscopic acromioplasty and rotator cuff repair. By a report of 28 August 2000 Mr Kozak confirmed that the plaintiff had an injury to his shoulder which was related "to a significant degree" to his occupation. Surgery was undertaken in late September 2000. Mr Kozak confirmed that the plaintiff did have a 5 centimetre tear in the supraspinatus which had been repaired. There was also an arthroscopic excision at the other end of the clavicle. By 4 October 2000 the wounds were well healed. The plaintiff had his arm in a sling and was doing passive movement at physiotherapy. By 24 November 2000 Mr Kozak thought that the plaintiff might attempt to return to his pre-accident duties as a fish filleter.

19 By a report of 15 January 2001 Mr Kozak noted that the plaintiff had experienced recently some swelling of the arm and difficulty closing his fist. There was also some shoulder pain.

20 In May 2001 Mr Kozak reported that the plaintiff was continuing to improve although still getting some pain and weakness which was, he said, to be expected. There had been a gradually improving range of motion in terms of both elevation and rotation. That continued improvement was confirmed in a report of 5 July 2001. The plaintiff was, by then, suited to light duties in sedentary work and was continuing with his rehabilitation program.

21 The plaintiff next attended upon Mr Kozak on 14 August 2001. He had, on 8 August 2001, suffered the first motor vehicle accident as a passenger in a bus. That is the first of two accidents giving rise to his claim for damages. As mentioned, the defendant in the case of each accident admits negligence. In the case of the bus accident, the plaintiff claims to have sustained injuries being an injury to the neck, an injury to the right shoulder, aggravation of the pre-existing injury to the right shoulder, an injury to the left knee and an injury to the lower back. The first defendant, in response, denies that the plaintiff suffered any injury at all in the bus accident asserting that, if the plaintiff did have those injuries, they were not related to the bus accident but rather to the incident at work on 12 July 2000. The first defendant denies also that the plaintiff did not suffer any or any material aggravation to his pre-existing shoulder injury.

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The circumstances of the first motor vehicle accident

22 The accident was the subject of two formal reports. Both form part of Exhibit 11. The first is a report by a police officer who attended the accident scene and the second is a report by an officer of the Department of Transport. Both are dated 8 August 2001. The accident occurred at the T-junction of Broun Avenue and Russell Street in Bedford at 11.30 am. It seems that the bus in which the plaintiff was travelling was proceeding north on Broun Avenue, passing through green traffic lights at the intersection of Broun Avenue and Russell Street. The first defendant's car attempted to turn right from Broun Avenue into Russell Street and collided with the bus. The driver of the bus said he had been travelling at 60 kilometres per hour and estimated, at the time of the impact, that he was travelling at 49 kilometres per hour having braked in a fruitless attempt to avoid the oncoming vehicle which, he expected, would not have turned right into his path.

23 The plaintiff said that he had boarded the bus and was going home, having attended a doctor's appointment. He said, in evidence, that he was sitting quietly watching the outside when, suddenly, the bus braked. He had been sitting on the left hand side in the middle of the bus just behind the middle door. Between the door and the seat in which the plaintiff sat was a sheet of glass or plastic. He was, of course, not wearing a seatbelt as none was provided. There were others on the bus also. The plaintiff was thrown from his seat. He said that he hit his knees on the glass or plastic partition between he and the middle doorway. He attempted to grab hold of a seat as he was thrown to the side, managing to avoid being thrown completely to the floor by putting out his hand. Others on the bus were on the floor. An ambulance was called and he, along with other passengers, was taken to Royal Perth Hospital where he was kept for several hours.

24 On the following day the plaintiff attended Dr Cibulskis. He complained of right shoulder pain, swelling in his right hand and pain in both knees. He told the doctor that he had been involved in a bus accident although he did not personally see the accident. The accident, he said, occurred at a set of traffic lights. The plaintiff told Dr Cibulskis that he was thrown forward, made contact with a glass panel and fell backwards and forwards three or four times.

25 In a report dated 10 December 2001, Dr Cibulskis told the workers' compensation insurers that the plaintiff's left knee had been twisted during the fall and that he had sustained injuries to his neck and left knee as well

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as aggravating the injury to his right shoulder. Counsel for the defendants challenged Dr Cibulskis in cross-examination as to the reference to the twisting of the left knee in the bus accident, enquiring as to the source of that information. Not surprisingly, the doctor replied that he had requested further information from the plaintiff and had included that further information in the report.

26 The plaintiff again attended upon Mr Kozak on 14 August 2001. In a report to Dr Cibulskis Mr Kozak noted that the plaintiff had complained of a painful right side of the neck and trapezius as well as a painful right shoulder. He was found to be tender over the right side of the neck and the trapezius. There was also some tenderness over the shoulder. Mr Kozak indicated that he planned an x-ray of the neck and an MRI scan of the shoulder before further review. He made no mention in that report of a problem with the knee.

27 The x-ray of the cervical spine indicated the presence of degenerative change but otherwise showed no evidence of bony trauma. The MRI scan of the right shoulder found no further tearing and no significant abnormality. By a letter of 19 September 2001, Mr Kozak reported to Dr Cibulskis on those findings and predicted that the plaintiff would have limitations so far as physical work in the future was concerned. He expressed the opinion that the plaintiff's neck and shoulder pain were the result of whiplash injury from the bus accident which would, in due course, resolve. In the opinion of Mr Kozak the bus accident had aggravated the pre-existing shoulder injury although the rotator cuff repair was still intact. He recommended that the plaintiff continue with his rehabilitation programme, suggesting that he had a permanent residual disability of 10 per cent so far as the right shoulder was concerned.

28 It is somewhat odd that Mr Kozak made no mention of the knee problem because, in a report to the Insurance Commission of Western Australia dated 22 December 2001, Dr Cibulskis noted the plaintiff's complaints of pain and noted tenderness in the left knee upon examination. He commented that prior to the bus accident the plaintiff's principal means of exercise had been walking and, as a result of the problem with the knee, walking had become painful.

29 For reasons which are not clear, Dr Cibulskis referred the plaintiff to Mr Michael Alexeeff, a consultant orthopaedic surgeon for review, principally in respect of the management of the right shoulder. Mr Alexeeff saw the plaintiff on 1 November 2001. So far as the neck symptoms were concerned he was of the view that the plaintiff had

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aggravated some pre-existing degenerative change and that the neck symptoms were likely to "settle down". So far as the left knee was concerned he suspected that the plaintiff had suffered an intra-articular derangement and that there was a meniscal tear. He thought that an arthroscope would throw light on the knee problems.

30 As to the right shoulder problem, Mr Alexeeff expressed the view that Mr Kozak had achieved an excellent result with the repair of "such a large tear". Noting that the plaintiff still experienced quite significant pain and restricted motion. He suggested an examination under anaesthetic.

31 In a report of 13 November 2001 to the workers' compensation insurer, Mr Alexeeff mentioned that the history of the bus accident provided by the plaintiff to him involved the plaintiff being seated "just behind the driver". He was told that the bus had braked suddenly, that the plaintiff was thrown into a perspex shield and that his left knee sustained a direct blow. He was told that the plaintiff had used his arms to protect himself. He remarked that: "Since then, he has gone rapidly backwards".

32 Shortly after the initial consultation with Mr Alexeeff the plaintiff returned, requesting that he take over his treatment. Despite the fact that Mr Alexeeff suggested that there be an arthroscopic examination of both the right shoulder and the left knee while under anaesthetic the plaintiff was forced to have two separate procedures involving two separate anaesthetics because the injury to the right shoulder was an injury which concerned the workers' compensation insurer and the injury to the left knee was an injury, arising out of a motor vehicle accident, which concerned the Insurance Commission of Western Australia. It seems the two insurance bodies could not reach agreement and two separate hospital admissions with two separate anaesthetics were required. The plaintiff was admitted to the Mount Hospital on 3 January 2002. With gentle manipulation while under anaesthetic Mr Alexeeff was able to free the shoulder of some adhesions which had made movement difficult. Those adhesions were resultant upon the surgical repair carried out by Dr Kozak.

33 Upon review on 30 January 2002 Mr Alexeeff noted significant improvement in the plaintiff's range of motion as a result of the surgery undertaken weeks before. He noted also that the left knee remained symptomatic. That was the subject of a separate arthroscopy at the Mount Hospital on 28 February 2002. Mr Alexeeff confirmed a complex tear of the medial meniscus with concomitant chondromalacia in the medial

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femoral condyle. The meniscus was resected to a stable margin and the area debrided. Mr Alexeeff expected the knee to settle quickly.

34 Throughout 2002 and 2003 Mr Alexeeff continued to treat the plaintiff. By 9 May 2002 he reported to Dr Cibulskis that the plaintiff's outcome was "as good as can be expected given that he had a large tear treated by our colleague Mr K Kozak and to clinical examination, his rotator cuff repair remains sound. I think he will struggle to return to his filleting work and should be accommodated by his rehabilitation providers in less strenuous work". Mr Alexeeff reported that the left knee had "settled well".

35 The plaintiff was again reviewed by Mr Alexeeff on 1 July 2002 presenting with right shoulder problems, numbness in the fingers of the right hand and a heavy feeling in the arm. Mr Alexeeff noted that the plaintiff's right hand was swollen, that his motion had deteriorated and that he appeared tight in rotation. Mr Alexeeff was not surprised by the deterioration in the plaintiff's state. He suggested an injection and hydrodistention of the joint. That took place on 4 July 2002. In subsequent review Mr Alexeeff noted that active motion had improved although the plaintiff continued to complain of pain and stiffness and that the right hand remained swollen. Of the knee he said: "His left knee is no longer an issue." Mr Alexeeff reported to Dr Cibulskis on 2 August 2002 that he was unable to explain the ongoing pain. In pursuit of a cause he referred the problem to Dr Geoffrey Gee, a consultant in pain management. The plaintiff, in consequence, attended Dr Gee on 15 August and 3 September 2002. That doctor's review and report threw no light on the problem. Upon review on 23 September 2002, Mr Alexeeff reported that the plaintiff still had a swollen right hand with some mottling of the skin. The right hand had been noted as swollen on 15 January 2001 and 9 August 2001. There were complaints of neck pain and arm pain.

36 An MRI scan on 24 September 2002 suggested a possible cause of the ongoing symptoms, other than the swollen hand, in the form of biceps tendinopathy. The quandary, in part, was that, in the opinion of Mr Alexeeff, that problem should not have been giving rise to severe pain although it was, at least, a physical problem which might be responsible for the ongoing symptoms. On the recommendation of Mr Alexeeff on 4 October 2002 the plaintiff underwent an ultrasound guided injection of his right biceps sheath. Following review on 31 October 2002 Mr Alexeeff reported that the injection had made "absolutely no difference". The problem did not appear amenable to further treatment

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and the plaintiff was advised that there was no procedure which might assist. Mr Alexeeff formed the view that the plaintiff would not be fit to return to his previous duties but that he should be able to manage lighter duties, suggesting that the plaintiff's rehabilitation providers take appropriate steps in that regard.

37 In that report, of 4 November 2002, Mr Alexeeff reported a complaint from the plaintiff as to the left knee. There was, he said, no swelling or knee effusion and there was a full range of movement. He suggested physiotherapy and swimming.

38 The plaintiff again attended upon Mr Alexeeff on 9 April 2003. His left knee had become more symptomatic. A further MRI scan was suggested. That took place and Mr Alexeeff again reviewed the plaintiff on 17 April 2003. The scan suggested ongoing meniscal change at the site of the arthroscopy and some chondromalacia in the medial femoral condyle. Those findings did not explain the worsening symptoms.

39 On 22 July 2003 the plaintiff again attended Mr Alexeeff complaining of knee pain, pain in the shoulder and recurrent hand swelling. The doctor noted that the plaintiff's hand did seem "puffy". In a report to Dr Cibulskis, Mr Alexeeff indicated that he had no explanation for the problems of the left knee or the right shoulder.

40 On 26 February 2008, in a report to the defendants' solicitor, Mr Alexeeff expressed the view that the effects of the bus accident on the right shoulder would be negligible. So far as the neck injury was concerned he was of the opinion that the bus accident merely aggravated pre-existing degenerative change in the cervical spine. So far as the left knee was concerned Mr Alexeeff was of the view that any impairment then suffered by the plaintiff reflected known degenerative change and that any disability relating to the bus accident was negligible.

The knee injury

41 Mr Alexeeff's opinion with respect to the knee seems to have been based, at least in part, on a conclusion of fact that the bus accident involved no twisting event. He said:

"Notwithstanding the differing versions of mechanism of injury that you have outlined, given the pathology at knee arthroscopy, where a complex tear of the medial meniscus was found, none of the mechanisms described would explain the meniscal pathology. It was likely that the meniscal tear was pre-existing.

(Page 12)

For a meniscal injury to occur, it is usual for the loaded knee to be involved in a twisting event."

42 There was, in the course of the trial, some time devoted both in examination of witnesses and by counsel in addresses to what were said to be varying descriptions of where the plaintiff was seated in the bus at the time of the accident. In a report prepared by Mr Alexeeff, he noted that the plaintiff had told him that he was seated "just behind the driver". In other reports and in evidence the plaintiff indicated that he was seated behind the driver but not immediately behind the driver but rather in the middle of the bus to the rear of the middle door. In the passage quoted above Mr Alexeeff referred to "the differing versions of mechanism of injury". Mr Alexeeff based his opinion, in part, on the proposition that there was no twisting of the knee in the bus accident. He was asked in cross-examination by counsel for the plaintiff whether he had asked the plaintiff about whether he twisted his knee in the bus accident. He replied:

"He didn't. If you were asking me directly did he say to me or did I ask him did he twist his knee, I asked him to explain what happened. He was sitting and he was pushed forward."

43 Dr Cibulskis, the plaintiff's general practitioner, wrote a report to Wesfarmers Federation Insurance on 10 December 2001, some four months after the bus accident. The doctor informed the insurance company that:

"On the 8th August 2001 Mr Christodoulakis was a passenger on a bus, which was involved in a collision. Mr Christodoulakis did not see the accident but at the point of impact he was pushed forward falling onto a glass panel in front of the seat in which he was sitting, he then fell forward and backwards several times, his left knee being twisted during the fall."

44 In cross-examination Dr Cibulskis said that he saw the plaintiff on 9 August 2001, the day following the bus accident. On that occasion he complained of pain in both knees. The plaintiff first saw Mr Alexeeff on 1 November 2001. He took a history from the plaintiff on that occasion.

45 It is apparent from his evidence that the plaintiff was sitting unrestrained on a seat in a bus on the left side of the bus behind the driver but immediately to the rear of the middle door. I find that there was, as mentioned by him, a glass or plastic panel immediately in front of him and that he struck that panel upon being thrown to the right from his seat

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on impact. Not surprisingly, the plaintiff did not see or in any way expect the collision which caused him to be thrown from the seat of the bus. I accept that he was in all probability relaxing and watching the world outside go by. There was no opportunity to brace himself. No doubt the event was over in a matter of seconds. I expect that the plaintiff would have been dazed and shocked. He was taken by ambulance along with other passengers to Royal Perth Hospital and later discharged. In such circumstances it would be almost impossible, in the absence of video footage of the event, for there to be an accurate account of the movement of the body and limbs in the course of that short event. Suffice it to say that it was a violent event causing the plaintiff to be thrown from his seat, to make contact with parts of the bus and causing other passengers to be thrown to the floor of the bus. It is not appropriate, in my view, when contemplating the forces that might then have been at work, to exclude categorically a violent twisting of the knee because the plaintiff, in relating what happened, failed to mention such an occurrence. In fact, he did mention such an occurrence to his general practitioner on the day following the accident. In his evidence-in-chief he mentioned that his legs twisted. He was not challenged in that regard in cross-examination.

46 The plaintiff, as mentioned, is now 60 years old. He arrived in Australia from Greece at the age of 17 years. English is not his first language. Quite clearly, having heard his evidence, he is quite competent in the English language but he still speaks with an accent and, as I discerned during the course of the trial, his English expression is not always as clear as that of a person born to English as a first language. There is, in that circumstance, some scope for misunderstanding. I place no importance on the apparent confusion over the plaintiff's seated position in the bus, and regard Mr Alexeeff's contention that "none of the mechanisms described would explain the meniscal pathology" as being too exacting in all the circumstances. He does appear, also, to have placed some weight on "the differing versions of mechanism of injury". On the balance of probabilities it is not possible to exclude a violent twisting of the knee in the course of the bus accident as a mechanism of injury.

47 It was Mr Alexeeff who eventually, some six months after the bus accident, performed an arthroscopy of the left knee. He found, as mentioned earlier, a complex tear of the medial meniscus with concomitant chondromalacia in the medial femoral condyle as mentioned. I do not accept Mr Alexeeff's conclusion, as expressed in his report to the plaintiff's solicitors of 2 December 2005 that it is unlikely that the meniscal tear was caused by the bus accident. My conclusion is, on the

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balance of probabilities, that it was. Mr Kagi, orthopaedic surgeon, in a report of 8 January 2003 suggested that the plaintiff had suffered a traumatic chondromalacia of the left knee which was already, at that stage, slightly degenerate. Mr Kagi thought that degenerative change was then likely to be the principal cause of the left knee problems and would not, therefore, recommend any further operative treatment but rather would continue with conservative measures, for example, occasional anti-inflammatory medication.

48 Mr Slinger, also an orthopaedic surgeon, concluded that the bus accident produced soft tissue injuries to the cervical spine, right shoulder and left knee.

"The injury to the left knee has been associated with symptoms which may well relate to the degenerative change at that knee, associated with a tear of the medial meniscus, those changes, which were previously asymptomatic, in the absence of that motor vehicle accident, may well have continued asymptomatic."

49 By way of prognosis he thought that any progression in symptoms about the left knee related to progression in degenerative change, unrelated to either of the two motor vehicle accidents the subject of this action.

50 In mid-2003 Mr Alexeeff noted that the plaintiff had an elevated serum uric acid level. He thought that gout might well be the cause of the plaintiff's ongoing knee pain. The plaintiff was treated for gout by way of medication. On 9 February 2004 the plaintiff was reviewed again by Mr Alexeeff and complained to him of increased pain in the left knee, advising that his gout levels were fine. Mr Alexeeff ordered x-rays and a left knee ultrasound. The former showed mild arthritic change. Following a review and examination of the plaintiff, Mr Alexeeff wrote to the defendant's solicitors as follows:

"On the basis of review, and after formal re-examination, despite his description of symptoms of ongoing knee pain which was somewhat non-specific but suggestive perhaps of mechanical pain, the clinical findings did not support ongoing pathology in the knee joint other than of a degenerative nature. The absence of an effusion would not support an ongoing inflammatory aetiology either. There was no obvious evidence on his x-rays of advanced arthritis to explain his symptoms."

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51 Mr Alexeeff concluded then that the plaintiff had suffered a mild impairment in respect of normal left knee function. It does appear from the evidence that the heightened serum uric acid levels suffered by the plaintiff were transitory and that gout was not the cause of the pain complained of by the plaintiff in the left knee. Mr Alexeeff concluded that the contribution of any injury suffered in the first motor vehicle accident to disability in the left knee was negligible.

52 When asked about that in cross-examination Dr Kagi thought that the impact upon disability was more significant but that the consequences of the meniscal tear and its repair would have, in time, been overtaken by degenerative change. In re-examination he said that there would have been a twilight period of relative comfort between the two. He thought that the symptoms arising from the disorganised medial meniscus would have completely alleviated over a year or two. The plaintiff's current knee symptoms would, thought Dr Kagi, prevent him from standing for 40 hours a week in full-time work and that he would have to vary his position between standing, sitting and walking.

53 I conclude that the plaintiff, in the first motor vehicle accident, suffered a soft tissue injury to the left knee which resolved in months rather than years.

The shoulder injury

54 Mr Kozak reported that some three and a half months after the right rotator cuff repair the plaintiff was experiencing some swelling of the arm with difficulty closing his fist. He was also experiencing shoulder pain. About 10 months after the repair he reported that the plaintiff still experienced pain with exertion but continued to improve. He thought that the plaintiff was ready for light duties in sedentary work.

55 Six days after the bus accident the plaintiff again attended upon Mr Kozak complaining of pain in the right side of the neck, in the trapezius area and in the right shoulder. Concerned that his repair work might have been affected, Mr Kozak suggested x-rays of the neck, an MRI scan of the shoulder and physiotherapy. The scan ultimately showed the cuff to be intact. X-rays revealed some degenerative arthritis in the cervical spine. In a report to Wesfarmers Federation Insurance of 3 December 2002 he expressed the opinion that the bus accident may well have aggravated the plaintiff's shoulder without causing any structural damage. He suggested further physiotherapy and a continuation of the rehabilitation programme. He reported again to that company on 30 March 2004. The plaintiff had, on 24 December 2003, undergone a

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further MRI scan of the right shoulder which again showed that the tear was still intact. By way of prognosis he predicted that the plaintiff would always have limitations in strength, endurance and in capacity for overhead work. He would also have limitations in his ability to lift and lift repetitively.

56 In a report to Wesfarmers Federation Insurance of 13 November 2001 Mr Alexeeff thought that the swelling of the right hand was directly related to the shoulder and that successful treatment of the shoulder would result in a resolution of the problem with the hand. As mentioned, on 3 January 2002, Mr Alexeeff manipulated the shoulder with the plaintiff under anaesthetic. Contrary to expectations, however, neither the shoulder problem nor the hand-swelling did resolve in the ensuing months.

57 Mr Alexeeff reviewed the plaintiff on 21 February 2008 and reported to the defendants' solicitors on 26 February. Upon review he noted that the plaintiff continued to find the shoulder painful with restricted elevation, reduced strength and an inability to lift. There had been, he said, numerous investigations as to the possible cause. In that report his diagnosis was "right shoulder rotator cuff disease". He concluded that the effect of the bus accident on the right shoulder was negligible.

58 In his report of 4 March 2008 Mr B S Slinger concluded that the bus accident had produced soft tissue injuries to the cervical spine, the right shoulder and the left knee. The soft tissue injury to the right shoulder was an aggravation of pre-existing symptoms present as a result of the accident at work in 2000.

59 In his final report of 6 March 2008 to the plaintiff's solicitors Mr Kagi concluded that, of the injuries to the right shoulder and chest, ribs and low back, all had settled apart from that to the right shoulder which, he said, had been injured sufficiently severely at work in July 2000 to have kept the plaintiff off work for five years. It continued to prevent him from working full-time. He concluded: "I do not believe the right shoulder condition at the present time is the result of any aggravation sustained in the bus accident." That was based, he said, on what the plaintiff had told him.

Neck pain

60 The opinion of Mr Alexeeff was that, in the bus accident, the plaintiff had "merely aggravated any pre-existing degenerative change in his cervical spine". Having regard to current symptoms and the age of the

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plaintiff along with radiographic evidence of chronic degenerative cervical spondylopathy, Mr Alexeeff suggested that the plaintiff would be an unusual patient if he were not to describe neck symptoms from time to time. As mentioned, Mr Kagi thought that the neck symptoms had settled. In his report of 4 March 2008 Mr Slinger had concluded that the bus accident had given rise to soft tissue injuries to the cervical spine.

Findings as to injury in the first motor vehicle accident

61 The pleaded injuries sustained in the bus accident are an injury to the neck, to the right shoulder, aggravation of a pre-existing injury to the right shoulder, injury to the left knee and to the lower back. Mr Kozak, reporting to Dr Cibulskis on 14 August 2001 said that the plaintiff complained to him of a painful right neck and trapezius area. He also confirmed tenderness of the right neck and trapezius. Mr Kozak thought that the plaintiff had, most likely, injured his neck more than his shoulder. As mentioned, his major concern was that the plaintiff had suffered a disturbance of the repair to the shoulder undertaken in surgery several months before. The general practitioner, Dr Cibulskis, also noted that the plaintiff had complained of moderate to severe pain in the muscles of the right side of the neck from the base of the skull to about C7 with radiation of pain into the right upper trapezius muscle. He found tenderness in the right side of the neck muscles and a reduced range of movement of the neck. He also thought that the plaintiff had suffered a soft tissue injury to the neck in the bus accident.

62 Having reviewed the evidence I conclude, as did Mr Slinger following later consideration of the plaintiff's circumstances and physical examination, that in the bus accident the plaintiff suffered a soft tissue injury to the neck.

63 Following the bus accident both Dr Cibulskis and Mr Kozak noted that, both prior to and subsequent to it, the plaintiff complained of right shoulder pain. Dr Cibulskis thought that the accident had aggravated the plaintiff's symptoms. Mr Kozak thought that the plaintiff may have aggravated his shoulder in the bus accident without suffering any structural damage to it. In a report of 6 November 2001 Mr Alexeeff noted that the plaintiff was suffering quite significant pain in the right shoulder with restricted motion. As mentioned earlier, Mr Alexeeff pursued quite substantial investigations over a period of time following upon his report of 13 November 2001 to Wesfarmers Federation Insurance to the effect that the plaintiff had "nothing to lose and everything to gain from aggressive treatment of his right shoulder". In his

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final report to the defendant's solicitors on 26 February 2008, Mr Alexeeff concluded that, in his opinion, no significant injury to the right shoulder had occurred as a result of the bus accident but added that a minor soft tissue strain could not be excluded. He thought the effects would be negligible. As mentioned, Mr Slinger thought that the bus accident produced a soft tissue injury to the right shoulder which aggravated pre-existing symptoms present as a result of the work accident in 2000.

64 Mr Kozak saw the plaintiff on 5 July 2001 and reported that, some 10 months after the right rotator cuff repair, he still suffered some pain with exertion activities but continued to improve. Quite clearly, the bus accident had an impact on the pathology of the right shoulder. The plaintiff said, in evidence, that following the bus accident his shoulder had "gone backwards" meaning that his symptoms had got worse. He said that, prior to the bus accident, it had been "coming good". That evidence seems to accord with the contemporaneous medical reports. My assessment of the plaintiff during the trial was that he was an honest witness and, having regard to the whole of the evidence, I have no reason to suspect that in providing a history and describing symptoms to the various medical practitioners he was anything other than honest. I am satisfied that, in the bus accident, the plaintiff suffered a soft tissue injury to the right shoulder and neck and an aggravation of the pre-existing injury which had been the subject of repair by Mr Kozak. The injury to the neck was the more significant injury.

65 I have already made findings relating to the injury to the left knee sustained in the bus accident.

66 There is insufficient evidence to support the claim that the plaintiff suffered an injury to the lower back in that accident.

The circumstances of the second motor vehicle accident

67 On 12 August 2004 the plaintiff was driving on Wood Street in Inglewood towards Beaufort Street when a vehicle driven by the second defendant drove in front of the plaintiff's vehicle causing the plaintiff's vehicle to collide with the defendant's vehicle. The defendant's vehicle emerged from a Coles Shopping Centre car park. The plaintiff was driving his daughter's vehicle, a second-hand 1990 Daihatsu sedan, travelling at a speed of about 25 or 30 kilometres per hour. The plaintiff's vehicle collided with the middle of the defendant's vehicle in what was described by counsel as a "T-bone" accident. His daughter's vehicle, he said, was written off. As mentioned, the second defendant's negligence is admitted. The plaintiff said that immediately after the accident he felt a

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pain in the chest and had difficulty breathing. He went home and was unable to sleep that evening. On the following day he attended at the Morley Medical Practice with the intention of seeing Dr Cibulskis. He was not available so the plaintiff was assessed by Dr Sivapalan.

68 Dr Cibulskis reported to the Insurance Commission of Western Australia on 25 March 2005 having referred to notes taken by Dr Sivapalan on 13 August 2004. In that report he noted that the plaintiff had slowly responded with local treatment and physiotherapy and that his symptoms resultant upon the bus accident had "largely settled" by the time of the second motor vehicle accident. Following that second accident the plaintiff complained of pain and tenderness over the para-cervical muscles on the right hand side with some minor discomfort on the left. He also complained of right anterior chest pain. Palpation suggested tenderness. X-rays revealed no fracture. There were, in addition, complaints of neck pain, mild discomfort in the back and minor discomfort in the lumbar spine. There was, in that area, a full range of movement.

69 As at 25 March 2005 the plaintiff was experiencing ongoing pain in the neck from level C1 to C7 and there was still some reduced range of movement. The pain in the right anterior chest wall had settled within two or three weeks of the accident. There was still mild discomfort of the right trapezius muscle. The discomfort in the right shoulder continued and, said Dr Cibulskis, had not changed since the surgery undertaken by Mr Kozak in September 2000. The discomfort in the thoracic and low lumbar spine had largely settled. He expected that the plaintiff would make a full recovery from the injury sustained in the motor vehicle accident of 12 August 2004. The neck injuries from the second motor vehicle accident were, thought Dr Cibulskis, most likely an aggravation of the injury suffered on 8 August 2001 and might also be resultant upon underlying osteoarthritic changes. Similarly, he thought that pain and discomfort in the right upper trapezius muscle and right shoulder were an aggravation of previous injuries. The only new injury was that associated with the right anterior chest wall which quickly dissipated. The plaintiff was undertaking hydrotherapy and using Celebrex.

70 Mr Slinger thought that the motor vehicle accident of 12 August 2004 resulted in soft tissue injuries to the lumbar spine, cervical spine and anterior chest. In his most recent report of 4 March 2008 he was of the view that the plaintiff's then present symptoms would be likely to continue and that he had reached "maximum medical improvement". Summarising the plaintiff's situation Mr Slinger said that, prior to the

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motor vehicle accidents, the plaintiff was capable of resuming light duties as a process factory worker in a full-time capacity but the injuries sustained in each of the two motor vehicle accidents had prevented him from returning to such employment and had limited him to part-time light duties, delivering fruit and vegetables.

71 It is clear that the plaintiff attended Mr Alexeeff on 9 November 2004 some few months after the second motor vehicle accident. By a letter of 19 November 2004 Mr Alexeeff reported to the defendants' solicitors as a result of that attendance. It is clear that there is, in that report, no mention of the second accident of 12 August 2004. It appears, from the correspondence, that the defendant's solicitors advised Mr Alexeeff, of the accident of 12 August 2004 in a letter of 3 August 2005. He again reviewed the plaintiff on 25 November 2005 and reported to the defendant's solicitors on 2 December of that year. He told them that the plaintiff had confirmed the advice that he had been involved in a motor vehicle accident on 12 August 2004. The correspondence passing between the defendant's solicitors and Mr Alexeeff does tend to suggest some heightened interest in the fact that there was no mention of the accident on 12 August 2004 during the plaintiff's attendance upon Mr Alexeeff on 9 November 2004. The defendant's solicitors suggested: "It would be interesting to ascertain why this was not mentioned to you at the time of your consultation in 2004". There is more than a hint of insinuation, in what I have seen of the correspondence passing between the defendant's solicitors and Mr Alexeeff, of the suggestion that the plaintiff is in some way unreliable if not dishonest. I refer, for example, to the earlier mention of "differing versions of mechanism of injury".

72 In that context, in his final report to the defendant's solicitors Mr Alexeeff noted, with respect to the second motor vehicle accident: "Upon reviewing the file, at no stage had the abovenamed advised me that he sustained a back injury as a result of any accident. Furthermore, it would appear that no major musculo-skeletal injury occurred as a result of either accident." I would be surprised if the plaintiff had advised the orthopaedic surgeon that he had sustained a back injury as a result of an accident. That, being a matter of diagnosis, would appear to be in the field of the practitioner rather than the patient.

73 Having reviewed all of the evidence in relation to the second motor vehicle accident I am inclined to the view and find that the plaintiff did suffer, in that accident, soft tissue injuries to the lumbar spine, cervical spine and anterior chest of a relatively minor nature. The latter resolved within weeks.

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74 In re-examination Dr Cibulskis told counsel for the plaintiff that he had last seen the plaintiff on 28 February 2008. He was then continuing to complain of right sided neck pain in the paraspinal muscles into the trapezius muscle, that pain being worse at night time. He also complained of ongoing neck pain in the left knee which was worse when walking, squatting, standing or driving a manual car. His complaint as to his right shoulder was that it was stiff. There had been, he said, an improvement in the range of movement of the shoulder. Apart from improvement in the shoulder the plaintiff's complaints of pain had been fairly constant over the preceding year or so.

Attempts at rehabilitation

75 The plaintiff was referred to Advanced Personnel Management ("APM") by Wesfarmers Federation Insurance in September 2000. A member of that organisation interviewed the plaintiff on 11 October 2000 at his home. That was one week after the surgery on the right shoulder undertaken by Mr Kozak. Not surprisingly, the plaintiff was then totally unfit for work with his right arm in a sling. In a report to Wesfarmers Federation Insurance on 20 October 2000 Ms Stephanie Byfield, a rehabilitation consultant with APM, advised that the plaintiff's employment as a fish filleter with New West Foods required him to work at least 48 hours per week and involved constant repetitive bilateral upper limb use, handling fish weighing up to 15 kilograms each during filleting, occasional floor-to-waist lifting and bilateral carrying of up to 35 kilograms and occasional pushing/pulling of tubs on wheels weighing up to 200 kilograms. She reported that the plaintiff was keen to return to his original duties at New West Foods but did recognise that he may have difficulty in that regard. By 15 November 2000 the die was apparently cast with Ms Byfield reporting to Wesfarmers Federation Insurance that Mr Kozak had indicated that the plaintiff would not be able to return to his pre-injury duties as a fish filleter and that the rehabilitation goal was then to redeploy him in a new position with a new employer. New West Foods, the plaintiff's employer at the time of his injury, advised that there were no alternative duties available for him in that business.

76 In January 2001 Ms Byfield reported that, on the advice of Mr Kozak, the plaintiff might be able to return to his pre-injury duties as a fish filleter and, accordingly, the rehabilitation goal had been adjusted to return him to his pre-injury hours and duties, subject to ongoing medical review. One month later the position changed again, apparently again on the advice of Mr Kozak, to the effect that the plaintiff would be unable to

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return to his pre-injury duties as a fish filleter. The rehabilitation goal again became redeployment to a new vocation with a new employer.

77 On 9 April 2001 the plaintiff commenced a work conditioning programme following discussions with a physiotherapist. That programme continued through April and June with the plaintiff attending five days per week. In a report of 18 June 2001 a Ms Marion Connelly of APM reported to Wesfarmers Federation Insurance that the advice of Mr Kozak was that the plaintiff would be fit to participate in a work placement in approximately four weeks. In consequence, APM determined to continue monitoring the plaintiff's progress on the work conditioning programme and to continue canvassing to secure an appropriate work placement. A prospective place of employment emerged in the form of a business called "Swish-n-Chips" in Mt Lawley. The plaintiff expressed concern about his ability to undertake cash register work and customer service. He was, as a result of claimed family commitments, very reluctant to work an afternoon/night shift. Following a workplace assessment a decision was made that the position was inappropriate for the plaintiff from a physical perspective.

78 An alternative was found in the form of a business called "Qualipak" at Malaga. A work start assessment took place on 31 July 2001. An officer of APM concluded that the physical demands of the duties involved at that company matched the plaintiff's physical capacity as demonstrated in the work conditioning programme. Before that placement could get underway the plaintiff was involved in the bus accident of 8 August 2001. He was, at the time, taking a bus following his attendance at APM's work conditioning programme. Following the accident he was unfit to continue with the placement. The plaintiff's rehabilitation programme remained "on hold". It was reinstated in May 2002. The goal remained the same.

79 By letter of 29 May 2002 Ms Connelly wrote to the plaintiff enclosing a "Service Delivery Plan Variation" in quadruplicate, advising that the form was a requirement of WorkCover WA. The plaintiff was asked to sign the top three copies of the form and return them to APM while keeping the fourth for his own information. He responded, unsurprisingly, by indicating that he would not execute the document until he had received legal advice. He had an appointment with his solicitor on 1 July 2002. On 3 July 2002 the plaintiff informed Ms Connelly that he had consulted again with Mr Alexeeff due to continued swelling, numbness and ongoing pain in his right arm. He was, he said, to have an injection. Dr Cibulskis advised Ms Connelly that the plaintiff had

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undertaken the injection and that he was to be reviewed again on 1 August 2002.

80 Later in August a programme was devised with a view to the plaintiff resuming employment at Qualipak at Malaga. That placement was to commence on 2 September. The plaintiff participated for two weeks in a graduated work placement programme at that business and reported, having done so, an increase in symptoms including shoulder pain and swollen fingers. The plaintiff indicated that he would cease attendance if his pain levels increased.

81 In the latter months of December 2002 there is some indication in the written material of frustration on the part of APM at the failure of attempts to rehabilitate the plaintiff and at his responses to those attempts. I do take into account that, following injection of the plaintiff's right shoulder on 4 July 2002 he was reviewed by Mr Alexeeff on 1 August 2002, 23 September 2002, 2 October 2002 and 31 October 2002. In mid-August and early September 2002 Dr Geoffrey Gee, the consultant in pain management, reviewed the plaintiff and reported to Mr Alexeeff. In late September 2002 he underwent an MRI scan of the right shoulder. On 4 October 2002 he underwent an ultrasound guided injection of the right biceps tendon sheath. On 12 November 2002 there was an x-ray of the left knee. It is clear that during this period the plaintiff was continuing under the care of Mr Alexeeff who was endeavouring to resolve the plaintiff's problems. These problems were real, not feigned. To the extent that there has been a suggestion made that the plaintiff had become uncooperative in his rehabilitation endeavours I conclude that his levels of pain and the problem of swelling in the right arm and hand were significant factors. It may be that he was also conscious of the legal position so far as his workers' compensation entitlements were concerned and, perhaps, the claim arising out of the bus accident. I do not regard the plaintiff, however, as being uncooperative to the extent that it might impact adversely upon his claim for loss of earning capacity.

82 According to Ms Connelly of APM Dr Cibulskis, the plaintiff's general practitioner, advised that his patient's participation in rehabilitation was no longer appropriate. In those circumstances rehabilitation efforts ceased. Ms Connelly's final report to Wesfarmers Federation Insurance Ltd was on 14 February 2003. Dr Cibulskis was not cross-examined on his advice to APM at that time.

83 The plaintiff did not return to work during 2003. When giving evidence the plaintiff said that he had begun work for the Swansea Street

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Fruit and Vegetable Market in Victoria Park as a delivery driver. He was, at the time of giving evidence, working three days a week from 6.30 am to 9.30 am. He complained of difficulty with his left knee when driving and standing for long periods. He was managing to carry bags of vegetables of up to 10 kilograms. His work hours varied from eight or nine hours a week when he started to 14 or 15 hours per week during summer.

84 In cross-examination he told counsel for the defendant that he was obliged to drive a manual Mercedes van. It seems that he is regularly required to drive from Victoria Park to the Hillarys Boat Harbour. He delivers fruit and vegetables to various hospitality outlets including the Kingsley Tavern and Kailis' Restaurant in Leederville. He is paid $15 per hour, cash in hand. The plaintiff had been working in that capacity for about two years and had been earning at that rate for that time. He confirmed that if he worked 10 hours a week he was paid $150 cash.

85 The plaintiff confirmed that he had remained on workers' compensation payments until February 2005. Those payments were paid to him in consequence of his claim arising out of his injury at work as a fish filleter on 12 July 2000. He, until February 2005, continued to receive workers' compensation payments because he did not, during that period, return to that or any other employment. The plaintiff is clearly entitled to an award of general damages in respect of both motor vehicle accidents. He pleads, with respect to both, that he has suffered loss of earnings and earning capacity. The plaintiff further pleads that it was in his intention to return to work as a fish filleter or alternative light work at the time of the first motor vehicle accident. As mentioned, by 15 November 2000 the workers' compensation insurer was accepting of the proposition that the plaintiff would not be able to return to his pre-injury duties as a fish filleter and that the rehabilitation goal, at that stage, was to find alternative employment. After some procrastination, a programme with that in mind was planned. On 24 July 2001 the plaintiff was reviewed by Dr Cibulskis with a view to commencing a rehabilitation programme. Some two weeks later he was involved in the first motor vehicle accident. Within a few months he was referred by Dr Cibulskis to Mr Alexeeff who reported on 6 November 2001 that the plaintiff's principle problem was still the right shoulder. He said that although Mr Kozak had achieved an "excellent result" the plaintiff had adhesive capsulitis with quite significant pain and restricted motion. He suggested, as mentioned, an examination under anaesthetic with gentle manipulation and an injection. That occurred on 3 January 2002. The plaintiff was reviewed by Mr Alexeeff on 30 January 2002, 13 March 2002, 19 March 2002, 8 May 2002, 1 July 2002, 1 August 2002, 2 October 2002,

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31 October 2002, 9 April 2003, 17 April 2003, 16 June 2003, 25 June 2003, 22 July 2003, 12 August 2003, 9 February 2004, 18 February 2004, 21 April 2004 and 9 November 2004. On 22 April 2004 Mr Alexeeff reported to Wesfarmers Federation Insurance that the plaintiff's current condition had remained largely unchanged "on how he was when I first saw him". He spoke of a continuation of mild discomfort in the right shoulder and a restricted range of movements. He spoke also of a guarded prognosis and that treatment modalities had been exhausted. He recommended to the insurer that the vocational rehabilitation providers were best advised to seek employment for the plaintiff in areas where heavy lifting and overhead activities were not required.

86 It is clear that Mr Alexeeff, in particular, had pursued investigation of the plaintiff's right shoulder problem and his problems with the left knee quite extensively. Some two years later there was little change to the former. I find that the injury to the right shoulder sustained on 12 July 2000 was the principle if not the only cause of the plaintiff's loss of earning capacity and that the problem in the right shoulder coupled with persistent attempts to deal with the pathology associated with it rendered the plaintiff unfit for work until at least February 2005 when the workers' compensation payments ceased. To the extent that he was compensated in full for loss of income during that period by way of workers' compensation payments he suffered no actual loss of income by reason of those payments. It is clear on the evidence that the problems presented by the right shoulder and the accompanying symptoms existed both before and after the first motor vehicle accident. It was those problems and symptoms which principally deprived the plaintiff of his earning capacity. To the extent that the aggravation of the pre-existing injury, the soft tissue injury to the shoulder and neck and the knee injury impacted upon the plaintiff's earning capacity those injuries were either short-lived or minimal or both. I conclude that the knee injury alone would not have deprived the plaintiff of earning capacity.

87 At the time of trial the plaintiff was working for a business called "Swansea Street Quality Markets" in East Victoria Park. The plaintiff had been reviewed by his general practitioner, Dr Cibulskis on 23 March 2007, just under one year prior to trial. He reported to the plaintiff's solicitors on that day. He said, inter alia, that the plaintiff's shoulder injury had been a significant barrier in him returning to work. He spoke of the plaintiff having trialled several jobs most of which were on a casual basis. The plaintiff, he said, was then working at a fruit and vegetable delivery job in which his tolerance was limited to two or three hours per day two or three times a week. I infer that the delivery job was the job at

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Swansea Street Quality Markets. In a statement of 12 March 2008 one Harry Katsamakis, the manager of that business, reported that the plaintiff had been working for him for just over a year. He said that the plaintiff would be required to start work at 7.00 am delivering vegetables and fruit and that if he were available to work full-time he would be able to do so for up to 38 hours per week at approximately $15.00 net per hour performing light duties in addition to his delivery duties. The work would be mainly store work preparing orders for delivery, cleaning and all round shop and store assistant duties. That duties would involve standing or walking and lifting and packing light items without any overhead work.

88 In his evidence-in-chief the plaintiff said that he was presently working for the owners of Swansea Street Quality Markets delivery fruit and vegetables. With some degree of flexibility he works three or four days per week from 6.30 am to 10.00 am. In cross-examination he said that he drives a Mercedes manual van between East Victoria Park, Leederville and Hillarys. The plaintiff confirmed that he was paid $15.00 per hour cash clear which I take to mean after income tax has been deducted. He does not complete a tax return.

89 I conclude that the plaintiff has found work which he apparently enjoys and which exercises the full extent of his current earning capacity. Dr Cibulskis, who last saw the plaintiff on 25 February 2008 confirmed that the plaintiff was continuing to complain of ongoing pain being right sided neck pain in the para-spinal muscles into the trapezius muscle and pain in the left knee. The latter was aggravated by walking, squatting, standing and by driving a manual car. When asked whether, in the year or so prior to that review there had been any appreciable change in the plaintiff's condition he said was perhaps slightly better.

90 The plaintiff's present employment seems reasonably settled. It appears to be the case that, subsequent to the cessation of workers' compensation payments in February 2005 and the commencement of his current employment in early 2007 there must have been some casual employment the details of which, on the evidence, are not apparent. The last tax return provided to me is for the year ended 30 June 2006 which suggests that the plaintiff, in that year, had a taxable income of $14,852 which appears to include income by way of rental from an investment property in Bayswater. Again, the evidence does not throw any light as to the detail of that income.

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Conclusions

91 I find that the plaintiff, prior to the first motor vehicle accident, had not recovered his lost earning capacity consequent upon the injury at work and the surgery which followed. He was, prior to the first motor vehicle accident, optimistic about a return to work and arrangements were being made to that end at the time of the first motor vehicle accident. The plaintiff's optimism was dashed following that event but it is clear on the evidence that the soft tissue injury suffered by him in that first motor vehicle accident, including the discrete injury to the knee did resolve over a fairly short period of time as is usually expected with soft tissue injuries. Those injuries would have been accompanied by pain and discomfort which, no doubt, compounded with the pre-existing problems, contributed to the plaintiff's overall assessment of his situation. None of the soft tissue injuries, alone or in combination, adversely affected the plaintiff's already impaired income earning capacity to any substantial degree. It is, in my view, difficult on the evidence to attempt to attribute a proportion of the plaintiff's lost income earning capacity to an aggravation of the pre-existing shoulder problems and to fix a monetary value on such an increment in circumstances where the symptoms which had prevented the plaintiff from exercising his full income earning capacity prior to the first motor vehicle accident were largely the same as those which subsequently had the same impact. I refer, for example, to the continuing problem of the swollen right hand. There can be no doubt that, following Mr Alexeeff taking over as the treating surgeon, he conducted a very thorough investigation of that problem. Those investigations, no doubt, contributed to the plaintiff's inability to return to work and to his assessment of his situation. To the extent that some lost earning capacity is attributable to each motor vehicle accident I am prepared to allow damages for past economic loss in a global way. I find that there is no basis for an award of future economic loss.

92 In evidence-in-chief the plaintiff said that he continues to take Celebrex which is his only medication. The only treatment that he undertakes presently is physiotherapy from time to time. The plaintiff said that before his shoulder injury he had been involved in playing and coaching soccer and in dancing and dance teaching. When asked whether he had been dancing since the first motor vehicle accident he said that he had because his wife liked to go. He presently drives a Toyota Corolla automatic sedan. He still does his own gardening. He and his wife share the household tasks. He cooks from time to time. He remains a member of the Hellenic Club, the Greek community and the Floreat Athena Soccer Club. He does occasional voluntary work for those clubs.

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93 My understanding of the plaintiff's evidence in cross-examination was that he continued to coach soccer following his accident work in 2000 albeit from the sidelines and without getting physically involved and that he gave up coaching soccer completely following the first motor vehicle accident.

94 Paragraph 8 of the plaintiff's statement of claim asserts that the injuries sustained in the first and/or second motor vehicle accidents have resulted in permanent and residual disabilities. Paragraphs 8.1 to 8.3 allege chronic right arm shoulder pain, weakness and restriction of movement, puffiness and swelling in the right hand and weakness in grip strength to the right hand. All of those factors were present prior to the first motor vehicle accident and continued thereafter.

95 Paragraphs 8.4 to 8.6 complain of disability in the left knee and leg. I conclude that, to the extent that there is presently such a disability, it is the result of degenerative change and not causally related to the first or second motor vehicle accidents. Paragraph 8.7 alleges that the plaintiff has a restricted capacity for work in a manual occupation or occupations involving prolonged standing or walking. The remaining paragraphs refer to other relatively minor incapacities such as difficulty in sleeping, driving and performing household duties. Paragraphs 8.9 and 8.10 refer to pain and restriction of movement in the neck and in the lower back. I am not prepared, on the evidence, to attribute any of those factors, to the extent that they do presently exist, to either of the two motor vehicle accidents.

96 Paragraph 9 of the plaintiff's statement of claim alleges that by reason of the injuries sustained in the first and/or second motor vehicle accidents and his claimed permanent residual disabilities he will require medical treatment and the use of medication in the future. My understanding of the plaintiff's continuing treatment is that he attends a local pool from time to time and swims as directed by his physiotherapist to whom he was referred by his general practitioner. His only medication is Celebrex. Continued swimming can only be to his long-term holistic wellbeing. I am unable to attribute the need for Celebrex or continued swimming to either of the two motor vehicle accidents. On the balance of probabilities I conclude that those expenses are attributable to the ongoing problems of the right shoulder and to degeneration generally. There is no evidence to support the claims of further radiological investigations such as MRI scans or arthroscopic surgery.

97 The plaintiff is certainly entitled to be compensated by way of an award of general damages for the pain, suffering and loss of amenities of

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life endured in consequence of first and second motor vehicle accidents. In doing so I must have regard to the provisions of the Motor Vehicle (Third Party Insurance) Act 1943 and, in particular, those provisions which relate to restrictions on damages for non-pecuniary loss. Section 3C of the Act provides that the amount of damages to be awarded for non-pecuniary loss is to be a proportion, determined according to the severity of the non-pecuniary loss, of the maximum amount that may be awarded. The maximum amount is presently $309,000. Section 3C(3) provides that the maximum amount of damages that may be awarded for non-pecuniary loss may only be awarded in a most extreme case. Section 3C(4) provides that if the amount of non-pecuniary loss is assessed to be amount B, as determined from time to time, or less, no damages are to be awarded for non-pecuniary loss. Amount B is presently $15,500. Accordingly, in the plaintiff's case, I must assess his damages for non-pecuniary loss as a proportion of the maximum amount given that the maximum amount may only be awarded in a most extreme case.

98 In Insurance Commission of Western Australia v Weatherall [2007] WASCA 264 the court noted that the expression "non-pecuniary loss" is defined to mean pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm. The court went on to say that the expression "a most extreme case" refers to a class of cases rather than to a case "at the apex of the gradation of injuries".

99 Having regard to all of the evidence relating to and the circumstances of each of the two motor vehicle accidents, I regard the appropriate proportion of the most extreme case with respect to the first motor vehicle accident as being 12 per cent and the appropriate portion of the most extreme case with respect to the second motor vehicle accident as being 9 per cent. I therefore propose to award general damages for the first in the sum of $21,580 and for the second in the sum of $12,310.

100 So far as past economic loss is concerned I propose, as mentioned, to award a global sum in each case. During the year ending 30 June 2000 the plaintiff earned a taxable income of $35,590. His net pay after tax and the Medicare levy in that year would therefore have been $26,933. By way of past economic loss I award, in respect of the first motor vehicle accident, the sum of $13,500 and in respect of the second motor vehicle accident I award the sum of $10,000. Those awards are somewhat arbitrary but reflect my finding, in the case of each accident, that the soft tissue injuries suffered by the plaintiff in each case would have resolved in a matter of months rather than years and that the injuries suffered in the

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second motor vehicle accident would have resolved more quickly than those suffered in the first. The awards also reflect my finding that the current circumstances of the plaintiff in terms of his pain, disability and discomfort have been extant for some considerable time now and are related either to his work injury or to degenerative change or both. It follows that I find that the plaintiff presently suffers no loss of earning capacity attributable to either of the two motor vehicle accidents. He has, I find, obtained work which suits his present circumstances and age and presently has no inclination to expand upon his current work arrangements. To the extent that he is unable to do so by reason of the existing disabilities, those disabilities are not, in my opinion, attributable to either of the two motor vehicle accidents.

101 It follows from the foregoing that there should be judgment for the plaintiff against the first defendant in the sum of $35,080 and that there should be judgment for the plaintiff against the second defendant in the sum of $22,310. I will hear counsel as to costs.