Ciftci v HERREEN - [2010] SADC 7

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
CIFTCI v HERREEN
[2010] SADC 7
Judgment of Her Honour Judge Shaw
28 January 2010
DAMAGES - PARTICULAR AWARDS OF GENERAL DAMAGES
Liability admitted – Plaintiff claimed that he suffered wrist, shoulder and back injury in rear end collision in April 2002. Pre-existing injury of right wrist and arthritis – Defendant denied that plaintiff’s injuries were caused in the accident – Alternatively, the plaintiff had recovered from any injuries suffered – Defendant contended that the plaintiff was malingering.
Held: Pre-existing wrist injury and arthritis asymptomatic prior to accident – Plaintiff’s injuries caused by defendant’s negligence – Plaintiff’s experience of pain genuine – Assessment of damages – Total damages award of $279,707.50.
Wrongs Act 1936, referred to.
Glavinas v Holden's Motor Company Limited [1991] SASC 3089; Donjerkovic v Adelaide Steamship Industries Pty Ltd (1980) 24 SASR 347; Birkholz v R.J Gilbertson Pty Ltd (1985) 38 SASR 121; Purkess v Crittenden (1965) 114 CLR 164; Pipikos v W Brown & sons Pty Ltd [1970] SASR 508; Wilson v Peisley (1975) 50 ALJR 207; Cullen v Trappel (1980) 146 CLR 1; Hillier v Hewitt [2001] SASC 225; Ritter v Kenny [2009] SASC 139; Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649; Carson v Knott [1999] SASC 71; Malec v Hutton (1991) 169 CLR 639, considered.

CIFTCI v HERREEN
[2010] SADC 7
JUDGE SHAW
Civil
Introduction

This is an assessment of damages in relation to a motor vehicle accident on 11 April 2002. Liability is admitted.
On 11 April 2002, the plaintiff was a front seat passenger in a motor vehicle, registered number WSB-544, driven by Selma Manay. This vehicle was travelling in a westerly direction on Port Road at Cheltenham, in the State of South Australia. The plaintiff was wearing his seatbelt. At about the same time, the defendant was travelling in the same direction on the same road. The defendant’s vehicle collided with the rear of the vehicle in which the plaintiff was a passenger. The plaintiff alleges that as a result of the accident, he suffered injury and loss.
The Plaintiff’s Claim
The plaintiff alleged that he suffered a severe spraining injury to his right wrist. This aggravated a pre-existing asymptomatic non-union of his right ulnar styloid process. He alleged he suffered injuries to his right forearm and right shoulder. He also alleged he suffered musculo ligamentous spraining injuries to the lumbar spine and cervical spine. The plaintiff also alleged that he suffered a level of depression. He abandoned any claim in respect of any other psychiatric condition.
As a result of these injuries, the plaintiff alleged that he was required to receive medical treatment and incurred expenses which are ongoing and medical expenses above the prescribed limit. He alleged that he suffered pain and suffering which is ongoing. He alleged that he continues indefinitely to suffer significant permanent residual disabilities. He alleged a significant impairment into the future in relation to his ability to lead a normal life. He alleged that all aspects of his life have been significantly affected.
It is further alleged that the plaintiff was significantly restricted in his ability to carry out his pre-accident employment, namely as a kitchen hand. As a result, the plaintiff alleges that he lost his employment. It is alleged that he was unable to engage in gainful employment from the date of the accident “except for a short period of very limited hours of work of a sedentary nature”.1
1 Amended Statement of Claim para 10.3
It is alleged that the plaintiff was totally and permanently incapacitated for his pre-injury employments, labouring or manual work or for any kind of gainful employment.
It is alleged that the plaintiff’s circumstances prior to the accident, limited him to labouring or manual work. It is alleged that the plaintiff would continue to suffer from a total loss of his earning capacity. It is also alleged that he suffered a loss of future entitlements to superannuation benefits. The plaintiff gave evidence and called a number of lay witnesses. He also tendered documents and called evidence from specialists Dr Morrison and Dr Mills and from general practitioners.
The Defence
The defendant does not admit that the plaintiff suffered injury, loss and damage. The defendant alleges that if the plaintiff did sustain injury, loss and damage, the plaintiff has recovered sufficiently from his injuries so that he no longer experiences pain. It is also alleged that he is sufficiently recovered to resume his normal duties or other equivalent employment. Alternatively, it is alleged that he has sufficient residual earning capacity to obtain alternative suitable employment and therefore to negate or reduce any loss of wages. It is further alleged that he has sufficiently recovered so as not to require further medical or other treatment. The defence alleged that there was no evidence that the plaintiff suffered injuries to the lumber or cervical spine or his shoulder in the collision. The defendant disputed the plaintiff’s claim that he suffered an injury to the right wrist in the collision. Alternatively, the defendant disputed the nature of any injury suffered. Further, the defendant says that if the plaintiff did suffer an injury to the right wrist, the severity and duration of such injury, aggravation and incapacity is in dispute. The defendant relied on the evidence of lay witnesses, documentary evidence, video surveillance footage, medical evidence and evidence from a physiotherapist Mr Tippett.
Background
The plaintiff was born in Turkey on 10 March 1966. He was 36 years of age at the date of the accident. He is now 43 years of age. He grew up on a farm. This involved the performance of manual work. As a young boy, he suffered an injury to his right arm. He has no recall of the circumstances of the injury. Between about 1990 and 1991, he worked as a primary school teacher. In about March 1993, he joined the Turkish Armed Services. In 1995, he began a pistachio business. In 1999, he left Turkey for Australia. At Port Hedland, he was examined by Dr Bowater pursuant to Australia’s immigration requirements. At the end of 1999, he obtained a visa for permanent residence in Australia. He travelled to Sydney where he was employed as a part-time casual kitchen hand and cleaner at a Turkish pizza and kebab shop. He also completed a Certificate II in Security.
The plaintiff states that in April 2002, he undertook a four day trial period at the Tea Tree Plaza Yiros shop owned by Suleyman Durmaz. On 11 April 2002, he was involved in a motor vehicle accident. He attended at the Queen Elizabeth Hospital but left without an examination. On 13 April 2002, the plaintiff attended upon Dr Siaw for examination in relation to injuries allegedly caused in the accident. On 3 July 2002, the plaintiff was examined at the Queen Elizabeth Hospital by an orthopaedic surgeon, Dr Morrison.
On 29 June 2002, the plaintiff’s wife and children arrived in Australia. On 28 February 2003, the plaintiff underwent surgery in relation to his right wrist. In June 2003, the plaintiff and his family moved to Mildura. The plaintiff’s case is that he attempted to work in vineyards on a trial basis.
In 2005, the plaintiff and his family returned to live in Adelaide. On 28 August 2005, the plaintiff was involved in a second motor vehicle accident.
Between 2005 and 2007, the plaintiff attended at the Mega Snack Bar at Greenacres. Between 2004 and 2007, the plaintiff received medical treatment from general practitioners, Dr Mehta and Dr Singh. From May 2008 to July 2009, he was treated by his general practitioner, Dr Pour. From January 2005, the plaintiff was filmed at various locations including Selma Manay’s food bar, at a family picnic and in the vineyards at Mildura and at the Mega Snack Bar.
Plaintiff’s Evidence
The plaintiff gave his evidence through an interpreter. I summarise the plaintiff’s evidence as follows.
The plaintiff gave evidence that he was 43 years of age. He was born in Turkey into a large family. He worked on the family farm with his brothers and sisters. They farmed pistachios, grapes and legumes.
The family did not have a tractor. He ploughed the fields with a horse drawn plough. He needed to push the plough into the ground as he controlled the horses. He used a cutting tool to harvest the wheat. He harvested the chick peas by pulling the plants from the ground. He lifted heavy items such as rocks and bags of pistachios up to 80 kilograms in weight. He chopped wood, herded cattle and pruned and harvested grapes, legumes and chickpeas.
He worked on the family farm between the ages 13 years and 27 years. He worked 10 to 15 hours per day. He is right-handed and therefore mostly used his right hand. He did not experience any problems with his right hand.
When he was young, he played sports. He never suffered a sporting injury.
In 1990, he met his wife. They married and now have four children aged from 5 years to 17 years.
He studied to be primary school teacher for one year and worked as a teacher between 1990 and 1991.
He continued working on the family farm on weekends and on term breaks.
In 1993, he entered army service. He stayed in the army for 19 months. He performed heavy physical activities including the use of large weaponry and artillery.
Prior to his entry into the army, he was examined by three doctors. Upon discharge, he underwent an extensive medical examination. Those examinations included an examination of his right arm. He did not suffer any injury in the army.
He began his own pistachio selling business. This required him to carry bags of pistachios weighing from 50 to 90 kilograms. He did not experience any problems with his right arm and wrist. He was also working on his parents’ farm from time to time.
In 1999, the plaintiff left Turkey for Australia. He arrived at the Port Hedland detention centre in Western Australia. He played various sports including basketball. He was subjected to a physical examination by Dr Bowater for the purpose of obtaining a permanent visa. This included an examination of his hands and arms. He was passed fit and granted a permanent visa.
He moved to Sydney via Perth to find work. He earned about $70.00 per week as a kitchen hand in a Turkish pizza bar. This involved chopping and cutting food, lifting kebabs onto cookers and cleaning. He did not experience difficulties with his right hand.
He undertook a security course. He achieved a Certificate II in Security Guarding.2 He was required to use both hands and a baton during the three month course. He was required to undergo medical examinations in relation to undertaking the course and achieving a certificate.
2 Ex P1 Vol 1 at p9 - certificate from Coastal Training
He lived with Selma Manay for a period of time. Together they came to Adelaide for work. In April 2002, he obtained work at a kebab shop in Tea Tree Plaza. He received $480.00 for a four day work trial. His tasks included lifting kebabs on skewers and placing them on a cooker. The skewers weighed between 40-55 kgs. He would also cut vegetables and fill the refrigerator. He did not experience any difficulties undertaking these tasks.
Up until the date of the accident, he did not experience any problems with his right arm, shoulders or back. He had not suffered any injury to these areas. He could not remember feeling any pain in his arm before the accident. He had not previously suffered from depression.
He said that he did not learn of his previous arm injury until after the 2002 accident. His mother first told him about the previous injury when he rang her to tell her about this accident.
The Accident
On the day of the accident, the plaintiff was a passenger in a car driven by Selma Manay. He said that they were about to stop at the train crossing on Port Road when the vehicle in which they were travelling was struck from behind. Their vehicle was pushed forward 20 metres and the gate across the road came down on top of the vehicle. He was wearing a seat belt. At impact, the plaintiff pushed his right hand forward on the dash board and his left hand across his face and head to prevent broken glass striking him in the face.
When he put his hand onto the dashboard, he felt pain in his right wrist. He accompanied Selma Manay to the Queen Elizabeth Hospital and waited for a long time. He eventually went home and the next day went to his family doctor, Dr Siaw. His neck, back, shoulders and his right arm were painful. His right wrist and forearm were painful and swollen.
He went for X-rays and his right arm was put into plaster. His arm did not recover so he underwent an operation. Dr Morrison performed an operation and his arm was again placed in plaster.
Since the accident, he has continued to experience pain in his right arm, back, neck and shoulder.
Attempts to Return to Work
After the accident, he returned to the Tea Tree Plaza Yiros Bar and attempted to resume work. However, he found that after about an hour, he felt pain in his forearm and his lower back. He could not continue work. His pain continued every day. He went into hospital for an operation. He believed he was going to get better.
Selma Manay opened a shop at Golden Grove. He did everything that he could to help her, using his left hand. When he used medication for pain, he was able to use his right hand to a limited extent.
He said that he was not getting wages for his efforts, but he received cigarettes and food.
His wife and children arrived in 2002. In about June 2003, he went to Mildura.
At Mildura, he went to Turkish restaurants looking for work, but could not perform the work because of the pain in his arm. He attempted work in the vineyards but could not continue with that either. He could not use the pruning scissors. He tried to do work for a harvesting contractor, Suleyman Erdogan. He tried to get work at farms at Swan Hill and Menindie but could not do the work.
Therefore, in 2005, he returned to Adelaide and tried to obtain work at a kebab shop at Castle Plaza. However, he couldn’t do the work. Then he obtained work at the Mega Snack Bar at Greenacres. Between 7am and 8am, he opened the doors and turned on various machines and electrical appliances. He did this on four days per week. He did not have lifting duties. He was paid $40.00 per week. He did this for about nine to ten months. When a new owner commenced, he continued carrying out the same duties. When this owner sold the shop, the plaintiff left.
On 28 August 2005, he was involved in another motor vehicle accident. He did not suffer injuries as a result of the accident, although he attended at hospital for a check-up. However, there was no increase in his pain symptoms as a result of that accident.
The plaintiff tendered his taxation records for 2005-20063, in relation to the Mega Snack Bar4 and his Centrelink PAYG summaries5.
3    Ex P3A
4    Ex P3B
5    Ex P3C
He saw a number of doctors after the accident.
Visiting Medical Practitioners
The plaintiff saw Dr Siaw a day or so after the accident.
He saw Dr Mehta from 2004 to the end of 2007. He also saw Dr Tejunder Singh and Dr Pour whilst in Mildura.
He also consulted with orthopaedic surgeon, Dr Morrison between 2003 and March 2009. Dr Morrison performed surgery on his right wrist. He said he did not notice any real change in the condition of his arm after the operation.
He consulted with Dr Mills, an occupational and rehabilitation consultant physician. He consulted a psychiatrist, Dr Galletley. He also saw a physiotherapist, Mr Tippett who tested his physical capabilities and looked at what future assistance he may need.
He does not know how to find Selma Manay. He has not seen her for three to four years.
Between December 2006 and 2007, he underwent a rehabilitation program.
Plaintiff’s Cross-examination on video footage
The plaintiff was cross-examined over a number of days. He was shown video footage of himself performing various tasks. The plaintiff was shown film taken on 27 January 2005 at Selma Manay’s Pizza Bar. The plaintiff agreed that he was attending at Selma’s at this time. During this period, he was living at Mildura and returning to Adelaide from time to time.
He was shown video footage taken on 8 February 2005 at Mildura, when he went on a picnic to the river with his family. He said that he tried to look normal and have “a happy face”, even if he was in pain.
When asked about his various activities shown on the video, he said that he would have taken his medication on that day.
He said: “there are days I feel good and there are days I don’t feel so good.”
He agreed that at one point, he put pressure on a thermos flask, but he explained that he would have been in pain whilst doing that. In relation to the movements in the video at the picnic, as compared with the doctor’s examination, he said that obviously he was feeling well on the day of the picnic. That is why he went on a picnic.
In relation to video taken on 8 February 2005 at a vineyard at Mildura, he agreed he was involved in tying up newly planted vine growth runners.
He said it was work you could do with two fingers of one hand. He made approaches to contractors for trial work. He did not get paid for trial work. He was also shown video taken on 9 and 10 February 2005 at Mildura.
He said that if he felt good, he could work two days in a row. He said that this was not very heavy work. He explained that when you hold the leaves of the vines, they come apart anyway.
He said that there were no days that he didn’t feel bad. He needed to get out and do things, and he pushed himself.
He was shown extensive segments of video taken in November 2005, September 2006, July 2007 and September 2007, whilst he was attending at the Mega Snack Bar. When asked about these activities, he explained that he was using his right arm but it was limited. He tried to use his right arm despite the pain.
He explained that he attempted to work so that he could try to feed his children and have a life somehow. He was not required to carry out the activities within a time frame or under instructions. When he used his medication, he felt much better and he was able to do the activities shown in the video.
The plaintiff said that in 2005, most of his time was spent sitting around, walking around and doing nothing, going to the shops and visiting his friends at the Mega Snack Bar.
In relation to the activities shown on the video, he explained that, even though they would have caused pain, he wanted to continue to try to do them because he did not want to withdraw from life.
In relation to video footage showing his activities at the Mega Snack Bar on 11 November 2005, the plaintiff said he felt better on some days than on other days. He said that if he took his medication, he could do heavier things.
He said that he said that he had constant problems with his right arm but it was always necessary to use it. He said he was doing work at the snack bar on a voluntary basis so that he did not have to stay home and do nothing.
He said that in 2006, there were some times when he went to the Snack Bar one day after another. On other occasions, he did not go there for a whole month.
In relation to the other segments of video showing his activities on 6 September 2006, he said that he took medication. He was trying to do things but he was in pain whilst he was doing them. He explained that this was a day where he was feeling good and could do those things.
His range of movement depended on how he felt on a particular day. He may have done the things shown on the video footage, but he would have felt great pain afterwards.

In relation to video taken on 15 September 2006, he said that what is shown on the video is him pushing himself and what he was able to do whilst taking his medication.
When the plaintiff was shown video taken at the Mega Snack Bar in July 2007, he agreed that there were times that he served customers and made coffee. He denied that he was ever a partner at the business or a full time or part time worker at the business.
The plaintiff said that he tried to help the other workers at the snack bar as much as he could. When it was necessary, he would receive money from customers.
He said that he tried to use his right hand but it gave him pain. There were days when he would have used his right hand. These would be days when he took his medication. He said that he pretended or tried to look normal in front of the customers.
When the plaintiff was shown video taken on 20 July 2007, he agreed that he was alternating between using his right hand to hold tongs and a scraper. He explained however, that he was never without pain. He would take 4 or 5 tablets of panadeine forte. He said he took different types of painkillers and tablets. He was shown video taken on Monday, 23 July 2007. He did not recall what time he got to work that day. He was shown video from 7.45 am on that day. He is shown making coffee, holding the milk jug in his left hand and reaching for a cup with his right hand.
It was suggested to him that the video taken at 12.23 pm on 20 July 2007 showed him using his arm in a full range of movements without apparent restriction. He said that he performed the activities shown on the video, although he was in pain.
As to the differences between the range of neck movement shown on the film as compared to the range of movement he showed in court, he said that he was in more pain at the time of giving evidence than at the time that the video was taken. At the time of giving evidence, he was feeling unwell.
He wore a plastic glove on his left hand because he mostly used his left hand when working.
When it was suggested to the plaintiff that he worked all day at the Mega Snack Bar on 23 July 2007, he said that there were some days that he spent longer times in the shop.
He said that when he has taken his medication, he uses his right hand. He said he always needed his medication. If he didn’t take his medication, he could not move at all. He said that he was experiencing difficulties, he was experiencing pain, but he would conceal it from those around him. He said that he would go to the snack bar to try and do things to feel like a normal human being.
When it was suggested to the plaintiff that the video showed him choosing to use his right hand whilst performing various activities, the plaintiff said that his doctors recommended that he try to use his right hand, even though he was in pain.
He was asked to explain his activities on 14 October 2008, at 11.30am at the front of 18 North Terrace, Adelaide where he attended for a medico legal appointment.
At 2.00pm, he was seen loading bread into the boot of his car. A couple of hours before, he had seen Dr Haynes and complained of ongoing pain and an inability to hold things in his right arm. The plaintiff explained that when he took his medication, he could do more things.
When questioned about a variety of actions shown on the video footage, he explained that he had days where he felt good and others where he must have taken many medications.
However, he emphasised that even though he performed the activities shown on the video footage, he always had pain in his arm. He said that any movement or any task he undertook made his arm worse.
He agreed that the video showed him using both hands to wrap food.
He said that he did not go to the Mega Snack Bar every day. He said that he did not undertake the full range of activities involved in the Snack Bar. He said he could not chop anything. He said that he was not a paid employee. He said he undertook the activities that he was able to do. He said he may have moved a refrigerator in October 2007, if his condition allowed for it on that day. Sometimes there were days that he could not put skewers on the cooker but there were other days when he could have done that.
The plaintiff was shown video footage of surveillance where he was seen shopping in a store.
He lifted tins into the shopping trolley. He said that he could lift the tins although it might be painful. He explained that when he was assessed by the physiotherapist, Mr Tippett, he had no strength in his right hand. He said that on some days, he could not hold anything.
He stressed that the period of time represented on the video is not a good representation of his whole life.
He said that no one would give him a job when he was limited to doing the activities shown on the video.
He said he was not very productive with gardening.
He said he usually used his left hand to drive.
Appointments with Doctors
Mr Tippett
The plaintiff consulted the physiotherapist, Mr Tippett on 23 August 2007 at the Mile End Health Clinic. A week later, Mr Tippett saw the plaintiff at his home.
The plaintiff agreed that he was unable to undertake Mr Tippett’s grip strength tests using his right arm. There were times when he could not hold things in his right hand. He said that if Mr Tippett asked him about his use of his right hand at the Mega Snack Bar, he would have told him. He denied that he set out to deceive Mr Tippett. He confirmed that his symptoms had not changed since the accident. He maintained that the video footage showed what he was able to do when he took his medication. He said that most of the time, he could not do anything to help with household duties.
He agreed that he told Mr Tippett that his arm was getting worse. He said that was the truth. He could not recall what he told each of the doctors but he told them the truth. All of the doctors told him to exercise his arm and hand whenever he could and that this would help him get better. He tried. However, when he did exercise his arm, it made the arm worse. He said that sometimes his arm feels like it is paralysed but sometimes with the help of medication, it is much better.
It was suggested to the plaintiff that he did not use his right hand during assessments by three doctors, Dr Haynes, Dr Begg and Dr Lewis on three consecutive days in 2007. The plaintiff’s response was that whatever he said to the doctors, it would have been accurate. When he was going to see doctors, he assumed that they were going to help him, even if they were doctors in connection with his claim. When he attended upon doctors, he did not take his medication. He believed that was the best way to get the best advice as to how to obtain help with the pain in his arm. He said that he saw so many doctors that he could not recall what his condition was at particular appointments. He said that if he was asked by Dr Haynes whether he had worked, he would have told him. He said that he told his doctors that he was trying to get work but he wasn’t successful.
He said that what he had told Dr Haynes, the defendant’s physician was the truth. What he said in court was the truth. There had been no change in his hand since the accident.
He could not recall whether he held his right hand with his left hand during Dr Hayne’s examination. He said he continues to do that from time to time when he is sitting or even walking around.
When he said to the doctor that he could not grip things, he meant that he could not use it freely. He only used his right hand when it was necessary. He explained that if there was a difference between his presentation at the doctor and what is shown on the video footage afterwards, perhaps he took medication after he left the doctor.
At the time of the consultation with Dr Mills, the occupational physician, he had not taken his medication.
In relation to the range of movement that he showed to doctors, he would have shown them the movements that he could do, and that depended on how he felt on a particular day.
The plaintiff’s cross-examination was detailed and thorough, during which he was shown many segments of video footage. He gave his explanation for each activity. He said that he would still have had pain in his arm and shoulder whilst performing the activities shown on the video. He explained: “Some things need to be done. I do it whether in pain or not.”
He said that if he did not take medication, he could not do things. The medication helped him to do things.
He explained that when he was taking medication, it numbed or eased the pain, but the medication was not effective for very long. He said he took high doses of panadeine forte to ease the pain. He rubbed cream on his arm for swelling and because of the colour.
He said he always had pain in his wrist. He said that the pain increased with any physical activity.
The plaintiff explained the alleged inconsistencies between his evidence and the Rule 22 particulars filed in the Magistrates Court on 20 June 2005.
He explained his failure to inform Centrelink of the four day work trial at the Tea Tree Plaza Yiros Shop prior to the accident.
The plaintiff denied that he earned any income from Suleyman Harvesting. He said that he disclosed all of his income from the Mega Snack Bar to the government. He said there was only one amount that he did not disclose, namely the $480.00 from Mr Durmaz for the pre-accident work. He said that his health and family were more important to him than his claim.
He said that he went to work trials on four or five occasions. He wanted to work, but he could not follow it through. He did not receive any money from work trials. He said that he endeavoured to work even though he had a claim pending.
He denied that prior to the accident, he had been prescribed medication for depression. Since the accident, he has been prescribed medication for depression.
Witnesses for the Plaintiff
Suleyman Durmaz
Suleyman Durmaz gave evidence that in April 2002, he owned a yiros shop at Tea Tree Plaza. The plaintiff came to see him about work. The plaintiff said that he came from Sydney and he had done similar work in Sydney. He worked for four days on a work trial. Mr Durmaz said the plaintiff did well. He worked from 9am to 5pm. Boxes of meat were delivered to the shop and the meat was taken out, cut, marinated, and put on the skewer. The Plaintiff cut the meat and he put the meat on a kebab skewer. He cut salads and vegetables that arrived in boxes. The work bench was designed for a right-handed person. A skewer loaded with meat weighed about 20 kilos. He saw the plaintiff carry meat on a skewer from the cold-room to the skewers. He saw the plaintiff reach up and cut the meat. The plaintiff performed the tasks at average speed. Mr Durmaz was unaware of any injury to the plaintiff’s right arm. He did not appear to have any restrictions working with his right hand. Because the plaintiff had done this work before, Mr Durmaz agreed to hire him. He offered the plaintiff full-time work, namely for five days a week between the hours of 9am to 5pm. If he had observed a problem, he would not have given the plaintiff a job. It was a very busy shop.
He paid the plaintiff $480.00 for the 4 day work trial. Following his accident, the plaintiff rang him and told him that he was not going to come to work. Mr Durmaz said that if he had been able to employ the plaintiff, he would have paid him the sum of $500 to $550 per week gross.
During cross-examination, Mr Durmaz explained that the plaintiff would give the meat to other employees who would serve the customers. He said that if he had employed the plaintiff, he would most likely have been in the shop from Wednesday to Saturday. He said that he was not a friend of the plaintiff.
He did not keep his records after he sold the business in about 2003, because he retired to Turkey and seven years had passed. After the accident, the plaintiff came to his shop but not to work.
In relation to the suggestion that the plaintiff asked him to give evidence to help him, he responded “absolutely not”.
Hadicha Aytuwar
Mrs Hadicha Aytuwar gave evidence that in about March or April 2002, she was working at the Tea Tree Plaza Yiros shop. The plaintiff came in for a couple of days a week for work experience. He was cutting yiros off the spit. He was chopping lettuces and carrying boxes of cokes to fill the fridge. Suleyman Durmaz was working there at the same time as the plaintiff. She did not see the plaintiff having any difficulties with his right arm. She is still working at the Tea Tree Plaza Yiros shop. She did not see the plaintiff work there again after April 2002. She said that she took over the shop in 2003.
Emine Ciftci
Mrs Emine Ciftci gave evidence that she married the plaintiff in 1991 in Turkey.
There are four children of the marriage aged 17, 15, 13 and 5 years. After they were married, the plaintiff worked on the parents’ farm. He stayed in the village. They grew wheat, pistachios, chick peas and cotton. He worked from about 7am to about 3pm. The plaintiff helped to knock pistachios from the trees. They picked the grapes by hand. They pulled the wheat from the ground by hand, put it in bunches, placed the bunches in piles and collected the piles. They had no machinery. They used scissors to cut the grapes. There was no tractor. The soil was turned by a plough pulled behind the horses. The plaintiff pushed down on the plough from behind. She said they picked the rocks off the land.
She said that he worked as a primary school teacher and also did army service. She described the work that he did in his pistachio selling business. He carried 20 kg bags of pistachios to the shops. They also used coal for heating. The plaintiff would lift 50kg bags of coal to carry them into the house. He used to play with the children. He had no problem lifting them. He helped with general household work including cooking and chopping wood. He never mentioned any problem with his hand. The plaintiff always used both his hands to perform all these tasks.
In about 1998, he left Turkey to come to Australia.
In mid 2002, she came to Australia with the children. Upon her arrival, the plaintiff told her that he had hurt his arm in a car accident. He complained about his arm, shoulder and lower back. He was always in pain and depressed. He was always complaining that he couldn’t do things that a man should do. For example, she helped with buttoning his shirt. He could not do housework. He was not able to drive long distances. In 2003, they moved to Mildura.
Whilst living in Mildura, her husband returned to Adelaide to attend appointments. At Mildura, the plaintiff unsuccessfully attempted farm work.
He went with his friends to Alice Springs to work for Mr Sulyman who was a harvesting contractor. She said that the plaintiff attempted the work but he failed. In 2005, he was not able to do any work.
In 2006, the family moved to Adelaide to make it easier for the plaintiff to attend appointments. They lived at Parafield Gardens for two years. The plaintiff would go to the Mega Snack Bar. He earned about $40.00 per week. He would go there to kill time.
Then they moved back to Mildura.
She said that before the plaintiff came to Australia, he was very healthy. When he came here, he fell to pieces. Now, he just sits and smokes. She described him as on a depression because he could not work.
Karim Shackal
Karim Shackal owned the Mega Snack Bar from October 2006 to October 2007. The plaintiff was attending at the snack bar before Mr Shackal purchased it.
He said the plaintiff’s work was very limited. He would perform tasks for a couple of hours in the morning, turning the machines on, and putting pies in the warmer. He would set the shop up. He would set the chairs down and he mopped and swept. He always complained that his right hand hurt so he did not do much. The plaintiff said that he could not do any more work.
He felt sorry for the plaintiff because he had a family. He did not let the plaintiff serve in the shop because his English was not very good.
He was not working full time. The plaintiff was always in pain and Mr Shackal could not give him any more to do. Sometimes, the plaintiff would stay at the shop all day after he completed his work in the morning. Mr Shackal paid him $10.00 per hour or about $40.00 per week.
Plaintiff’s Medical Evidence
Dr Bowater
The plaintiff relied upon the reports of Dr Max Bowater dated 23 January 2007 and 5 December 2007 in relation to his examination of the plaintiff at Port Hedland on 18 November 1999.
I set out relevant parts of the report dated 23 January 2007:
“4.During the course of the above examination I did examine Kadir’s upper limbs. My standard examination was to request (either verbally or visually) the immigrant to perform the following tasks (as it relates to upper limb function):
(a)     bend forward and touch your toes.
(b)reach both hands over the back of your head and touch   your back as low as you can.
(c)reach both hands around the back of your buttocks and              touch your back as high as you can.
(d)     squeeze my fingers.
5.The notes of the medical examination of Kadir Ciftci revealed      that I found nowhere abnormality with any of the joint     movements of both his upper limbs.
6.    I did not find any physical or mental condition which would have affected his ability to earn a living or perform productive work.
7.… all of his responses demonstrated normal function of the joints and muscles of both upper limbs.
8.     … he did not demonstrate any musculo-skeletal pathology.
9.I did examine Kadir’s right forearm and right wrist. This was       done at the same time as I examined the left forearm and left    wrist. At examination I determined that his right forearm and         right wrist function was not significantly different than his left forearm and left wrist function. I also determined that his forearm and wrist function were normal bilaterally i.e. he had      normal right forearm and right wrist function when I examined       him on 18 November 1999.”
Subsequently, Dr Bowater reviewed the medical reports of Dr Morrison, Dr Mehta and Dr Lewis. In his report dated 5 December 2007, he stated:
“In other words, having read the medical reports supplied, it does not alter my finding of normal bilateral upper limb functioning when Kadir Ciftci was examined by myself during the Immigration Medical performed on 18 November 1999.”
Dr Siaw
Dr Siaw, a general practitioner provided reports in December 2002 and 8 April 2003 (incorrectly dated 14/2/03).
He gave evidence that after the accident, the plaintiff consulted him on 13 April 2002. When he examined the plaintiff, he observed swelling of the right wrist. He noted that it was more than slight swelling. He also noted that the wrist “cannot move well”, the lumbar was “all tender” and that he was “tender along most spinal processes”. He could not say whether there was swelling of the wrist prior to the accident.
He experienced difficulties in communicating with the plaintiff in English.
He referred the plaintiff to an orthopaedic surgeon for further investigation because of the apparent significant degree of disability in relation to his right arm. He reported that the plaintiff said that he was able to use his right wrist prior to the accident without significant pain but it was somewhat weak. After the accident, his condition deteriorated. He saw him on about ten occasions over a year. He issued a number of medical certificates.6
6 p149, 154, 157 up to 28/7/03 ex P1 Vol 1
He concluded that the plaitniff’s pre-existing wrist injury had not given him a significant disability before the accident. However, since the accident, the plaintiff had a progressive worsening of his right wrist condition with increasing pain and weakness. His injuries were consistent with the stated cause and presentation.
In relation to the swelling, he agreed that because of a pre-existing injury to the wrist, there may have been some chronic swelling. However, he was of the opinion that the amount of swelling suggested more recent trauma, particularly when considered together with an appearance of redness of the skin.
Dr Singh

Dr Singh, a general practitioner saw the plaintiff in Mildura between 12 November 2003 and 18 April 2004. Dr Singh had difficulties communicating with the plaintiff and in one instance, the plaintiff’s son acted as an interpreter. He assessed the plaintiff and decided that he was clinically depressed.
He prescribed Endep for the depression. He prescribed a stronger medication than panadeine forte, namely tramadol. He said that Endone also helped with chronic pain. During every consultation, the plaintiff told him about his arm pain. He would repeat things like, “nobody is helping me”. The plaintiff was frustrated. Family stresses were contributing to his depression.
The plaintiff complained that his pain was getting worse and that he could not sleep at night. His depression was also getting worse.
Dr Singh said that the plaintiff had an incapacity for kitchen work. He did not think he would be able to do heavy manual work.
He agreed that the plaintiff’s presentation according to the film and what was said to be recorded in the running sheets of the investigators was markedly different to what he saw at the plaintiff’s presentation.
Dr Pour
Dr Pour gave evidence that he was a general practitioner in Mildura. He commenced seeing the plaintiff in May 2008 and saw him on about five occasions.
Dr Pour was fluent in Turkish. Therefore, he felt able to speak to the plaintiff in his own language. He saw many patients in general practice and considered he was able to make an assessment of clinical depression. He treated the plaintiff for depression.
Dr Pour prescribed an anti depressant Endep. The plaintiff commenced on Endep on 4 June 2008.
Dr Pour tried to wean the plaintiff off Pandeine Forte. The plaintiff said that Panadeine Forte was no longer helping him. Therefore, Dr Pour prescribed a Norpan Patch. Norpan is a narcotic pain relief drug.
On 6 July 2009, the plaintiff reported that the Norpan Patch was ineffective.
Dr Pour explained that chronic pain patients can experience underlying mental health issues and suffer from depression. The plaintiff’s depression was exacerbating his perception of pain. His absence from work contributed to his depression.
Having regard to his examination of the plaintiff, the video footage and Mr Tippett’s report, Dr Pour formed the opinion that the plaintiff would not be able to perform heavy physical work. If the plaintiff performed heavy work, it would cause pain and aggravation of his symptoms. This in turn would affect the quality of his life.
Dr Mehta
I received reports from a General Practitioner, Dr Mehta dated 5 July 2007, 10 August 2007, 22 November 2007 and 26 November 2007.7
7 Ex P1 pp15-21
Dr Mehta gave evidence that he first saw the plaintiff two years after the accident for pain management. He did not observe objective signs of trauma to the wrist and a physical examination did not reveal a physical injury.
However, the plaintiff presented with restricted and painful arm movement. This would have made it difficult for him to work in the kitchen. In Dr Mehta’s opinion, the plaintiff could not perform manual work including kitchen hand work.
The plaintiff told him that he had not suffered pain or had a disability prior to the accident.
His injuries were consistent with having been caused in the accident.
He expressed the opinion that the plaintiff was not consciously exaggerating his symptoms and that the apparent exaggeration was unconscious as part of a conversion disorder.
He expressed the view that it would help the plaintiff if the case was over.
He saw the plaintiff on 5 September 2005 in relation to a motor vehicle accident on 23 August 2005.
The plaintiff complained of injuries to the right ear, deafness, headaches whiplash injury and lower back pain for which he was referred to a physiotherapist.
Dr Mehta was of the view that this was a very minor accident and it was not referred to again.
On 16 December 2005, the plaintiff showed a restricted range of wrist movement with considerable stiffness.
On 20 March 2006, the plaintiff was still complaining of pain in the right wrist and forearm. On 17 July 2006, he complained of pain in the right arm and right leg.
He saw him on 11 May 2007, relating to continuing pain. On 10 September 2007, the plaintiff was complaining of pain. He presented with severe pain in his right wrist with a marked restriction in his ability to use his right wrist and right arm.
Dr Mehta expressed the view that the video footage did not show movements of the wrist at the extremes. Therefore, he could not say whether the plaintiff’s movements were unrestricted at the time that the video depicted.
Dr Mehta explained that the plaintiff could do some work but he could not do heavy manual work.
He said that even if the video showed the plaintiff working, the plaintiff may be working with pain. A lot of people are capable of working with an injury whilst in pain. He said that the plaintiff could work in a snack bar if he was just performing light duties. However, as a kitchen hand, the plaintiff would have to perform chopping duties.
Dr Gordon Morrison
Dr Gordon Morrison is an orthopaedic surgeon. He first saw the plaintiff on 30 July 2002, when the plaintiff attended at the Orthopaedic Hand Clinic at the Queen Elizabeth Hospital. The only history he took was that the plaintiff worked as a farmer in Turkey. From the Queen Elizabeth Hospital notes, he obtained a history relating to the circumstances of the accident. The plaintiff complained of pain in his right wrist as a result of a motor vehicle accident in April 2002. The plaintiff underwent a bone scan.
The bone scan showed an inflamed area in the wrist. It was around the site of the ununited ulnar styloid. Dr Morrison concluded that the plaintiff suffered a fracture of his wrist as a child. He explained that the ulnar styloid can heal with fibrous tissue. It may or may not be painful.
He expressed the opinion that at the time of the accident, the plaintiff had a wrist injury, namely the ununited styloid injury, but it was asymptomatic.
Because of the pre-existing injury, Dr Morrison did not expect the plaintiff to make a recovery to normality. There were two aspects to the plaintiff’s injury. He suffered firstly, from an underlying fracture and secondly, from the osteoarthritis of the wrist joint. There was increased uptake around the ulnar styloid. In his opinion, that was so intense and acute, that it was more likely related to trauma than a degenerative process.
In Dr Morrison’s opinion, the accident had rendered symptomatic the underlying problem. This was consistent with the plaintiff’s symptoms of pain having resulted from the accident.
He formed the view that an operation would help any pain coming from the ununited ulnar styloid.
On 28 February 2003, the plaintiff underwent an operation on his right wrist to remove the ununited styloid.
The prognosis was for improvement. In fact, the plaintiff did not show improvement.
On 24 May 2007, Dr Morrison saw the plaintiff with the assistance of an interpreter. The plaintiff told him that before the accident, he had performed work in Australia in a small shop.
After examining the plaintiff’s wrist and back, Dr Morrison concluded that since the accident, the plaintiff was incapacitated for any kind of manual work. The underlying arthritis would mean that the wrist injury would not completely resolve. In his report of 30 May 2007, Dr Morrison expressed the view that the plaintiff had little or no trouble with the wrist before the accident. Dr Morrison believed that the deformity had not altered for many years and it may not have been noticed unless it had been specifically looked for. If a squeeze test was performed prior to the accident, it would not necessarily have shown up the old injury. However, the plaintiff reported that after the accident, he had never been able to squeeze his hand. Dr Morrison formed the view that the plaintiff’s capacity for manual work was limited.
In Dr Morrison’s opinion, there was a pre-disposing condition which was asymptomatic prior to the motor vehicle accident. He concluded that the plaintiff’s ongoing impairment related to the motor vehicle accident in question. He also explained that a ‘wrist arthrodesis’ may be required in the future.
In his report of 4 August 2007, Dr Morrison expressed the view that the plaintiff suffered a straining injury to his right wrist in a motor vehicle accident on 11 April 2002.
In his opinion, the plaintiff would not have had to consider any surgical treatment for his right wrist such as that carried out on 28 February 2003, had it not been for the accident in question. He expressed the view that the plaintiff’s ongoing impairment relating to his right shoulder was also a direct result of the motor vehicle accident on 11 April 2002. He was of the opinion that the back injury was a musculo ligamentous spraining injury as a result of the accident. He concluded that the plaintiff was unable to carry out any form of manual labour as a result of the accident. This included kitchen hand duties.
In a report of 25 October 2007, Dr Morrison expressed the view that the plaintiff suffered from a complex region pain syndrome affecting his right upper limb, rather than the intentional involuntary simulation of pain as suggested by Dr Haynes. However, this had now been discounted.
The plaintiff complained to Dr Morrison that his arm felt paralysed and at times; he could not move it. Dr Morrison assessed his loss of function of the right dominant arm at or below the elbow at 30%, the loss of function of the right dominant arm above the elbow at 25%, in relation to his shoulder. He assessed a loss of function of the cervical spine at 15% and a loss of function of the lumbo sacral spine at 15%. He explained that a person with a 30% impairment of one arm could do a lot using both hands. He did not notice that the plaintiff’s skin colour was bluish. On occasions the plaintiff’s arm was swollen. The swelling would be caused by inactivity of the arm.
Video Footage
Prior to giving evidence, Dr Morrison viewed surveillance video footage of the plaintiff. Dr Morrison expressed the opinion that the vast majority of the film was non-contributory. There were small fragments that surprised him. He commented that there were a lot of occasions where the plaintiff was holding his right hand unusually still. On other occasions, he appeared to be using his right hand spontaneously beyond what was seen in the consultation setting. However, nothing in the surveillance video demonstrated to Dr Morrison that the plaintiff had the ability to resume activities such as cutting vegetables. From watching the video, there were very few segments showing the plaintiff doing things on more than two occasions. He noted that during his formal presentation, the plaintiff was able to do less than he is seen doing in the video. Because of the plaintiff’s underlying arthritic pain, he could experience pain after attempting activities. Taking medication would mask pain and enable the plaintiff to perform certain duties.
As a result of his viewing the video footage, Dr Morrison was of the view that the plaintiff suffers from some impairment that results from the old injury becoming symptomatic, but for some reason, he presents to Dr Morrison and other practitioners that his impairment is more severe. Ordinarily, the recovery that was possible as a result of the surgery would have occurred within 12 months.
Dr Morrison remained of the view that the plaintiff had an ongoing impairment. He said that everything on the video demonstrated that heavy labouring work would be inappropriate.
In his opinion, the motor vehicle accident had turned a potential problem into a real problem. The plaintiff could have continued working indefinitely. However, he would have had a problem eventually because of the arthritis, but Dr Morrison could not put a time frame on that time period.
He remains of the view that the plaintiff would have difficulties with household tasks. At clinical presentation, the plaintiff presented as if he could not carry out any of those duties but the video showed that the plaintiff could carry out some of those activities. In relation to security work, Dr Morrison was of the view that the plaintiff could not have been involved in the physical needs of the duties of security work, such as required for crowd control.
In relation to working as a kitchen hand, the plaintiff would not be able to perform duties such as carrying loaded skewers weighing up to 20 kgs. This was based on the plaintiff’s presentation to Dr Morrison. The video footage did not show this type of activity. The neck and lower back injuries would impact minimally on the plaintiff’s ability to work as a kitchen hand.
Dr Morrison explained that in relation to the right shoulder, the video showed more movement than at clinical presentation. He was unable to quantify the level of the plaintiff’s restriction of movement.
During cross-examination, Dr Morrison said that he did not support another operation because he did not regard it as a sensible way to treat the plaintiff’s symptoms. The plaintiff did not need further treatment from an orthopaedic point of view.
In relation to his report of 20 January 2003, Dr Morrison explained that the plaintiff’s initial complaints were about pain. He complained about his inability to use the wrist. He accepted that the plaintiff would have carried out heavy work before the accident. However, using the wrist does not accelerate degeneration.
He was disappointed in the result of the surgery, namely the planitiff’s presentation and his complaints about the level of his restriction. As a result of seeing the video footage, Dr Morrison was pleased to see a better picture. Because there was not an explanation from an orthopaedic point of view, he considered the possibility of complex pain injury syndrome. However, the plaintiff had not developed the features over time which one would expect and therefore, this was excluded as a diagnosis.
Dr Morrison was of the view that the plaintiff had a 60% to 70% chance of some improvement. In his opinion, all of the video footage was of limited quality, and visibility and therefore, there were limitations on making any comment based upon it. Even based on the video, there would be impairment relating to the operation site and the underlying injury.
In relation to the plaintiff’s activities as shown in the video, Dr Morrison agreed that the plaintiff did not appear to have difficulty in moving the steering wheel when driving. He did not appear to show restriction of movement of his cervical spine to one third of the normal range. The plaintiff did not show a restriction of the lumbar spine when he lifted the items into a trolley in the supermarket.
In relation to the restrictions to the wrist, he agreed there were occasions when the plaintiff appeared to move his wrist more freely. Dr Morrison said that having seen the video, he would have doubts about the history that the plaintiff had given him and what the plaintiff told him about the level of his restrictions. However, he said that there were few instances where the plaintiff demonstrated a full range of movement, if any. Dr Morrison said that he had doubts about his quantification of the level of the plaintiff’s symptoms. He said that it was difficult to make any quantification of the extent of the plaintiff’s level of impairment.
Dr Morrison said that from the video footage, it appeared that there was no significant impairment relating to the plaintiff’s spine.
Dr Morrison expressed the opinion that the plaintiff’s impairment was unlikely to be of a level where a multidisciplinary pain clinic input would be helpful.
The non test situation shown in the video footage caused him to have concerns that the plaintiff was not presenting his full capability to a medical practitioner.
The video surveillance showed a higher level of activity than on clinical presentation.
He said that it is impossible to discount that the plaintiff is malingering.
Dr Morrison said that cultural differences may cause persons to believe that they need to demonstrate the seriousness of their complaint to medical practitioners.
Dr Morrison said that he made no assumptions about whether the plaintiff was taking medication for pain at the time that the activities were performed on the video footage. Whether medication enabled the plaintiff to present in a certain way at particular times depended on the amount of medication taken and the period for which the medication was effective.
Evidence of Dr Colin Mills
Dr Colin Mills has been an occupational physician since 1970. He initially consulted the plaintiff on 2 February 2004. He prepared a report dated 6 May 2004.
He observed the video footage of the plaintiff taken at various times.
He said that some of the plaintiff’s movements as shown on the video, were inconsistent with major pathology of the right arm and right wrist. There was not a physical or medical explanation for those inconsistencies.
Having seen the video footage, Dr Mills was of the opinion that the plaintiff had a greater capacity for work than his assessment demonstrated.
However, there was no evidence on the video footage of the plaintiff carrying out repetitive work using the right wrist. The plaintiff’s history indicated a developing complex pain syndrome.
The plaintiff’s activities shown on the video footage were light duties. Continuous or repetitive work would cause problems as would work having to be completed within a time frame.
In relation to farm work, if it was heavy and repetitive, it would very likely be ruled out for the plaintiff.
Any heavy crowd control work as a security officer would be inappropriate.
He said that the video footage showed that there did not seem to be a great restriction in the plaintiff’s normal activities of daily living. The heavier activities were likely to be more of a problem.
The plaintiff presented markedly differently on the video footage than he presented in his consulting rooms. The video footage showed a greater range of activities than Dr Mills had seen. Dr Mills was under the impression that the plaintiff sustained the fracture of his wrist in the car accident. He was of the opinion that the plaintiff suffered from psychological sequelae because of his description of experiencing flashbacks of the accident.
In his report of 4 September 2007, Dr Mills agreed that there was a non-organic component.
He expressed the view that the complex regional pain syndrome was evident from the colour changes in the plaintiff’s arm from reddish to blue.
He observed a different appearance to the right arm as compared with the left but he had not seen the plaintiff in more recent times. He agreed with the opinion of Dr Morrison that this syndrome can now be discounted.
Various grip tests were conducted on 3 September 2007. The results of those tests were inconsistent with observations of the plaintiff’s activities on the video.
Dr Mills expressed the view that there was no evidence of major injury to the right shoulder and right wrist but there remains a problem with the right wrist and lower back.
He last examined the plaintiff on 19 September 2008.
He said that he had modified his report bearing in mind what he saw on the video footage. He maintained his opinion that the plaintiff was unfit for heavy manual or repetitive work.
I turn to the evidence called by the defendant.
Defendant’s Case
Mega Snack Bar Witnesses
Vicki Leanne Harris
Vicki Leanne Harris gave evidence that she purchased the Mega Snack Bar in October 2007. She said that the plaintiff, whom she knew as Chris, and ‘Karim’ were introduced as “the owners of the snack bar”.8
8 T960.27
She said that she attended at the Mega Snack Bar for two weeks before she took over the business. During that time, the plaintiff worked from 7.00 am to 4.00 pm, Monday to Friday and Saturday until 3.00 pm. She said that the plaintiff undertook a variety of duties at the snack bar including setting up the yiros machine.

She did not observe any restrictions in the plaintiff’s ability to carry out duties.
She said that the plaintiff told her on about the second day, “If anyone comes in, I only work an hour a day; you tell them that”.
During cross-examination, Ms Harris acknowledged that she had a copy of the contract for the sale of the business. She was asked:
Q “Is Chris’s name on it?”
A “They both signed it, yes Chris and Karim”.9
9 T977.22
And further,
Q “Regardless of who signed it, whose name was on the contract as the vendor?”
A “Karim”.10
10 T966
Later she said:
Q “Karim signed it as the owner and Chris just signed it as a witness”
A “Without looking, I couldn’t be honest with that”.11
11 T977.22
She said she could produce the purchase and sale documents. She had previously given them to the insurance company.
Subsequently, Ms Harris produced the documents Ex P22 which showed that Karim Shackal was the vendor. She denied that she had talked with anyone about her evidence. She said that Kathy Reid told her that the plaintiff had said to Ms Reid previously, that if anyone came in to the snack bar, she was to say that the plaintiff only worked an hour a day. Ms Harris said that she replied, ‘Me too”. She said that the plaintiff was unhygienic.
Kathy Reid
Ms Reid gave evidence that she worked at the Mega Snack Bar from 2002 until 2008. She knew the plaintiff as ‘Kadir’. She said that the plaintiff was the owner. However, she went on to say that the plaintiff did not say this to her. It was based on her observations as to his role.12
12 T1002
When she began working at the shop, it was owned by a Greek couple, and the owner was called Sam. For a time, Sam and the plaintiff worked in the shop together.
Ms Reid worked part-time. She worked between 11am and 1pm or 11.30 – 1.30pm. When she arrived each day at the snack bar, it was ready for lunch trade. Sam was teaching Kadir how to do things, such as the coffee machine. A friend of Kadir’s, called Ali, was also there.
She said that Kadir was there each day during the period Sam was there. After Sam left, she continued to work part time.
She said that there was a period of about 6 months where the plaintiff was at the Mega Snack Bar on his own.
She did not know what hours the plaintiff worked because she worked part-time.
She said that during the last couple of months before the plaintiff left, he told her that after he left, if anyone asked after him, she was to say that he just came in for an hour per day.13 She said that Ms Harris was part of this conversation. She worked for Ms Harris for about 8 to 9 months.
13 T1004 L.5
During cross-examination, Ms Reid said the plaintiff was in the business for about 6 months before ”Ali and Shakal”. She was asked:
Q “During that time was Mohammed appearing to run the business or can’t you remember?”
A “I don’t know. I can’t answer that question. I don’t know.”14
14 T1022
She said that the plaintiff had difficulties with English and she found him hard to understand.
She placed the orders for stock. Towards the end, the plaintiff learnt how to do it. He could not do it early because of his difficulties with English. She said that she observed him talking to representatives about stock and orders. Sometimes the plaintiff collected produce, served people, made coffee and sandwiches. The plaintiff gave her the wages. He did not appear to experience any difficulty undertaking those tasks. At no stage did the plaintiff complain about his right hand.
She worked a maximum of 3 days per week. She was unaware of any injury to the plaintiff’s right hand. When Ms Harris was training to take over the shop, he told her that he had been seeing doctors because of a problem with his hand.
She said she did not like the way the plaintiff spoke to her. She had a disagreement with him about the way that food was done. She said that she had arguments with him about cleanliness.
She acknowledged that she had a number of disagreements with the plaintiff about the way he spoke to customers and to her.
Sozan Said
Ms Sozan Said gave evidence that she worked at the Mega Snack Bar from June 2005 until March 2006. She said that the plaintiff introduced himself as the current owner and that he conducted her employment interview. The plaintiff determined her hours of work. When she began, Kathy Reid was working at the shop.
She worked from either 8.30am or 10.00am until 2.00pm. For the first two months, she worked from Monday to Friday. After that, she worked Monday to Wednesday. She said that when she was working full time, the plaintiff was in the shop every day from the time that the shop opened until it closed. The plaintiff did all the cooking in the back room and the cutting and slicing.
She said that after the boy Mohammed returned to Mildura, there were no other men working in the shop.
The plaintiff attended to the ordering of new food and stock. Ms Said explained that the plaintiff’s English was poor. When he had a problem with explaining an order, he would ask her to translate and explain the order.
She said that the plaintiff placed the yiros meat on the rotisserie machine.
She arrived after the shop was already open. She said that the plaintiff was right handed, but for a number of tasks, he would use both hands. She did not see him having any difficulties carrying out tasks.
She said that she had disagreements with the plaintiff after an employee named Sheerin Tursun began working. She said that she did not like his unprofessional approach to staff and to the business.
She left the shop in March 2006. She had seen the plaintiff working at the Golden Grove Yiros Shop owned by Selma Manay at the end of 2004, beginning of 2005.
Sheerin Tursun
Ms Sheerin Tursun gave evidence that she worked at the Mega Snack Bar for 3 months near the end of the year 2006.
She said that she worked 2 to 3 hours per day and 4 days per week. She said the plaintiff was the boss.
She said that the plaintiff filled up the fridge, set up the pies and pasties, and cut the meat. He cooked lasagne, roast beef, vegetarian and cut tomatoes.
There was another employee called Mohammed. She said that she left because she did not like the plaintiff. She was first asked to give evidence only a week before giving evidence.
Medical Evidence Called by Defendant
Dr Phillip Haynes
Dr Haynes is an occupational physician. He saw the plaintiff on three occasions. I received reports dated 20 March 2005, 30 July 2007 and 21 October 2008.15
15 Ex D10
Upon physical examination, the plaintiff was able to move his right arm in abduction about 30° away from his body.
In his first report, Dr Haynes expressed the view that he was unable to make a diagnosis in regard to the plaintiff’s alleged right arm symptoms. He said that they were out of all proportion with the accident of 11 April 2002. He was of the opinion that the plaintiff was fit for his previous work duties as a cleaner or security worker.
He said that he expected that the plaintiff should have recovered within weeks or months after the accident. Dr Haynes agreed that he had never sighted the X-rays of the plaintiff’s arm or wrist. He considered the plaintiff’s complaints only upon the basis of the reports of others.
He accepted that he did not perform surgery of the kind performed by Dr Morrison. He said that he was asked to provide some kind of “guesstimate” and “one could only do one’s best”. He said that all of the information received was included in his report which he dictated after the completion of the twenty minute examination and assessment. In his first report, he said that it was “vaguely feasible” that there could be some residual right wrist discomfort as a result of the motor vehicle accident on 11 April 2002. In his second report, he said that the likely diagnosis was that of a pre-existent fracture of the ulnar styloid which may have been symptomatically aggravated in the motor vehicle accident. He agreed that it was hard to predict how medication may affect people.
In relation to his opinion concerning the plaintiff’s ability to return to work, he agreed that his information about the plaintiff’s pre-accident work was not very detailed.
He said that he was not clear about the nature of the surgery carried out on the wrist. He said that it may not be within his expertise to estimate the recovery time for this wrist injury. He also said that he did not have information about any other organic condition in relation to the wrist. He said that if there was no organic medical condition present, panadeine forte would not assist.
Dr Carolyn Dorrington
Dr Dorrington, a psychiatrist provided two reports dated 3 September 2007 and 20 April 2009.
In her first report, she concluded that the plaintiff suffered from a chronic adjustment disorder with a mildly depressed mood. She said that he was also showing signs of a factitious disorder in that he assumed a sick role in relation to his presentation of right arm/hand disability.
In her second report, she concluded that she was no longer of the opinion that the plaintiff presented with signs of a factitious disorder. She agreed with the opinion of two other psychiatrists that the plaintiff suffered from a conversion disorder and/or pain disorder. She said that “psychological factors are judged to have an important role in the onset, severity, exacerbation or maintenance of the pain”. Those psychological factors included the traumas suffered in the context of the plaintiff’s escape from Turkey and from the motor vehicle accident.
Dr Dorrington said that after viewing the video footage, she had changed her mind. She formed the view that the plaintiff was malingering.
Dr Dorrington agreed that although the question of malingering may be the focus of clinical attention, it is not a psychiatric illness. She was asked whether having seen the video footage, she ought to have sought a possible explanation from the plaintiff before expressing this opinion. Her response was, “why would I need to do that”. She said that the plaintiff does not have a conversion disorder, because having seen the video material, the pain does not cause him clinically significant distress in social or occupational functioning.
When asked to assume matters put by counsel, she was reluctant to do so. Based on the video material, she had decided that the plaintiff was untruthful. She said that the plaintiff told her that he was not working. She concluded that the video footage showed that he was working. She said that if he is going to be untruthful in one area, then it was going to be difficult to accept him in other areas. Therefore, she was not willing to accept anything that the plaintiff might say.
She accepted that the video footage was restricted to a number of days over some years.
She said that she changed her opinion between the first and second consultations on the basis of the plaintiff’s presentation.
In re-examination, she said that the conversion disorder will wax and wane but not to the extent that is seen on the video footage. She stated that even if a person is on medication, they will take protective measures knowing that the medication might wear off. She did not see any sign on the video footage of the plaintiff taking any protective measures.
Dr Jules Begg
I received reports from Dr Jules Begg, a psychiatrist, dated 12 July 2004, 30 July 2007 and 17 October 2007.
In his report dated 12 July 2004, Dr Begg made a principal diagnosis of adjustment disorder with a depressed mood.
He concluded that the accident appeared to be the precipitating event. He did not identify any pre-existing condition. He expressed the view that the plaintiff was unlikely to respond to psychologically based treatments because of the plaintiff’s firm belief that the disability was connected with his physical incapacity. At that time, he anticipated a twelve-month period would have been required after the accident to adjust. He expressed the view that the plaintiff’s work capacity was restricted to 20 percent of normal as a result of his depression.
In his report of 30 July 2007, Dr Begg expressed the view that the diagnosis of adjustment disorder with depressed mood was not present but was now one of a chronic pain disorder. He opined that the accident exacerbated a pre-existing injury and that the plaintiff’s subsequent fear of movement in the joints led to increased pain sensitivity. This resulted in a chronic pain disorder. The accident was the precipitatory event.
He concluded that the plaintiff was unable to work because of the pain. In view of the length of time since the accident, the likelihood of improvement in the future was poor.
In his report dated 17 October 2008, Dr Begg concluded that the plaintiff had a swollen arm, and was unable to perform any tasks. He diagnosed chronic pain disorder. He expressed the view that the likelihood of the collision being the predominant cause of the loss of function “appears to be quite low with psychological factors predominant.” He referred to factors such as the plaintiff’s migration to Australia as a refugee, difficulty in social assimilation and the litigation. In that report, Dr Begg expressed the view that the accident did not appear to be the cause of the hand injury and as such, did not contribute to a permanent disability.
He also expressed the view that the prognosis for his psychological recovery was poor.
In his report of 12 July 2004, Dr Begg stated that the plaintiff showed a reluctance to discuss issues relating to his background in front of the interpreter who was of a different ethnic group.
Dr Begg reported that the plaintiff was asked whether there was any fear in relation to the collision, and he said; “Yes of course; I feared I could have been killed, I have a wife in Turkey and was waiting for them to arrive.”
Dr Begg diagnosed an adjustment disorder with depressed mood.
In his report of 30 July 2007, Dr Begg stated that he did not consider that the plaintiff suffered from an adjustment disorder but expressed the opinion that he suffered from a chronic pain disorder. He said that there were no symptoms of post traumatic stress disorder.
In his report of 17 October 2008, Dr Begg diagnosed a chronic pain disorder. The plaintiff presented consistently throughout as a man who could not use his right hand or wrist. He said that given the plaintiff’s history, the likelihood of psychological factors impacting was very high. He said that the video material rendered his opinion invalid. He said that the activities performed on the video by the plaintiff were consistent with someone malingering or feigning disability.
He explained the diagnostic criteria for a pain disorder. He said that if the criterion of intentional feigning was established, the pain disorder could not be made out. He said that “malingering” was not a psychiatric illness. However, it was a criterion he needed to exclude to arrive at the diagnosis of chronic pain disorder. It is an opinion arrived at on the facts.
He said that in the video material, the plaintiff is shown undertaking activities before and after a presentation at his rooms. He did not examine or undertake any tests of the plaintiff’s hand before he saw the video footage, but he did not use his right hand during the interview. During the consultation, the plaintiff referred to his hand as “useless” and straightened his hand out. In Dr Begg’s opinion, that presentation was not explicable in terms of taking medication. He did not consider it necessary to reinterview the plaintiff about what he saw in the video footage.
If he was to assume that the plaintiff performed the duties shown on the video footage although in pain, Dr Begg said that he anticipated there might have been some signs of pain.
Dr Begg said that if the plaintiff was taking medication, that would not be consistent with the history given by the plaintiff that he was in pain all the time. He accepted that pain affects people in different ways. He agreed that what he saw of the plaintiff’s activities on the video, wasn’t heavy work but he recalled that on one occasion, at the picnic, the plaintiff leant back and undid a thermos flask.
He said that he would defer to the opinion of an orthopaedic surgeon in relation to the plaintiff’s capacity and the activities that he saw on the video footage.
He said that he is aware that some cultural groups will feign symtoms to get attention. Coming from Turkey, the plaintiff may be sensitised to trauma such as this. He accepted that for general practitioners, the “KMV” score test is commonly used to assess patients for depression.
If a person has been prescribed the medication Endep, this would indicate that there were some clinical symptoms of depression present. This medication also helps address pain.
The plaintiff told him that he couldn’t do anything at all. As a refugee, emotional distress could be expressed as pain. He was surprised at the degree of pain.
The plaintiff told Dr Begg that he had made attempts to return to work. Dr Begg did not obtain any details of the nature of the work attempted or the duration of the attempt. He did not have any details of what the plaintiff said about the attempts that were made. However, he understood that the video evidence showed the plaintiff working in an occupation.
He was therefore unable to compare what he saw on the video footage with the work the plaintiff was referring to when he told Dr Begg that he had made attempts to return to work. Dr Begg said that he had withdrawn both his diagnoses because he believed that the plaintiff was feigning the degree of his incapacity. The plaintiff may have had a small degree of impairment that he was magnifying.
Mr Ross Tippett
A physiotherapist, Mr Ross Tippett provided reports dated 23 August 2007. and 17 September 2009,16 and gave evidence of his assessments of the plaintiff
16 Ex D13
On presentation to Mr Tippett, the plaintiff’s predominant problem related to his right wrist. There was behaviour avoidance in the use of his right hand. Having viewed video surveillance footage, Mr Tippett expressed the view that there were minimal functional limitations, if any, to the plaintiff’s hand. There was a significant difference in relation to the functional capacity of the plaintiff’s right hand, between Mr Tippett’s assessment and the activity shown on the video. He referred to examples shown on the video of the plaintiff carrying his child for 45 seconds and other activities during the family picnic by the river. He now believed that none of the service aspects that he had recommended in his report would be required. He expressed the view that the video showed that the plaintiff could sustain work in a snack bar and look after himself in a domestic setting. However, he could not comment on heavy gardening requirements.
During cross-examination, he agreed that he would need to reassess the plaintiff in light of the surveillance video, in order to properly determine the plaintiff’s exact functional capacity. There were a range of activities shown on the video footage that showed that the plaintiff was able to carry out various activities. He expressed the opinion that the plaintiff’s capacity lies between light kitchen type work and heavy loading. He agreed that the plaintiff may be able to offer an explanation in relation to his ability to carry out the activities shown on the video material. The question of the usefulness of medication was not within his expertise.
In expressing his opinion, he assumed that the plaintiff seemed to have been at work at the times shown on the video footage.
He agreed that the plaintiff was seen on the video footage on a limited number of occasions performing the activities that he relied upon for his opinion.
He would not say confidently, that the plaintiff could work as a security agent without a further assessment. He agreed it was difficult, given all of the material, to make a quantification of the plaintiff’s impairment in the present circumstances.
Mr Tippett was unable to make any comment about whether the functional capacity of the plaintiff shown on the video, meant that the plaintiff would be able to perform those activities pain free.
Private Investigators

On 28 February 2003, the plaintiff underwent surgery to remove the ununited ulnar styloid. Dr Morrison concluded in his report of 9 August 2007 that the plaintiff “would not have had to consider any surgical treatment for his right wrist… had it not been for the accident on 11 April 2002”.29 He explained that the operation was an attempt to improve the plaintiff’s symptoms but any improvement may take a year.30 Dr Morrison also stated that the shoulder, neck and lower back symptoms were a direct result of the accident.31
29 Report 9 August 2007 Ex P5A at p75
30 T525 L10-12
31 Ex P5A pp77, 76
Dr Morrison considered the potential significance of the 28 August 2005 accident. He remained of the view that whatever impairment the plaintiff has, relates to the 2002 accident.
Finding
I am satisfied that as a result of the accident, the plaintiff’s right wrist was injured and the pre-existing injury became symptomatic. I bear in mind that the plaintiff was involved in a subsequent accident on 28 August 2005. This was a minor accident. I find it has no relevance to the claim.
In my view, the 2002 accident remains the significant cause of the plaintiff’s injuries and more importantly, of his ongoing experience of pain. I am not satisfied that any subsequent event is a relevant contributing factor to his ongoing experience of pain. I am satisfied that the plaintiff has established that the defendant’s negligence materially contributed to his current condition. I am satisfied that any other possible causes of his condition cannot be disentangled.32
32 Purkess v Crittenden (1965) 114 CLR 164, 168
I turn to the various heads of the plaintiff’s claim and my findings.
Findings in Relation to Pain and Suffering
As a result of the 2002 accident, the plaintiff suffered injuries to his right wrist, shoulder and back. He felt pain and experienced swelling in his right arm. As a result of his injuries, despite attempts to do so, he was unable to work regularly as a kitchen hand or undertake other regular employment. I accept the evidence of Mrs Ciftci that after her arrival in Australia with the family in June 2002, the plaintiff was complaining about his arm, his shoulder and his lower back. He complained of pain in the wrist. He appeared depressed, sad and frustrated. She had to help him with his dress, such as buttoning up his shirt. It was necessary for Mrs Ciftci to do all the heavy work around the home.
I am satisfied that the plaintiff continued to suffer pain in both shoulders. His pain in the lower back was exacerbated by sitting for a lengthy period, bending and other activities.
He was restricted in his ability to lift his right hand above shoulder height without pain. He also experienced neck pain on sideways movement. He also suffers headaches and sometimes pain down his right leg. He suffered from sleep disorders. He does not feel comfortable driving long distances. Whilst undertaking activities at the Mega Snack Bar from mid 2005, he took medication regularly which helped to ease the pain.
When he did not take medication, he was always in pain from the right wrist. I am satisfied that the plaintiff experienced constant pain that at times was alleviated with the use of medication. He was prescribed the stronger pain medications of Tramadol and a Norpan patch in the attempt to assist with the pain.
He became depressed as a result of his inability to cope with the pain and he has lost hope of any recovery from his injuries.
He was treated by his general practitioner for clinical depression and prescribed antidepressants.
He has been told that there is nothing more that can be done to improve his condition. He is taking medication for his depression.
He has no social activities and he feels as though he is waiting to die. At home, he is continuously idle and cannot spend quality time with his wife and children. He feels a sense of hopelessness. He cannot work or give his family what it needs from him. He keeps thinking about his previous life.
His weight has increased since the accident by 35kg.
In relation to his sexual relations, he experienced difficulties for about the first year.
Dr Morrison acknowledged that he would not expect the plaintiff’s problem associated with his right wrist to resolve completely because of the arthritis that had become symptomatic. I take into account that the arthritis in the plaintiff’s wrist may have become symptomatic in any event at some future date I am satisfied that the plaintiff continues to experience pain in his wrist and arm. I am satisfied that he is not consciously exaggerating his experience of pain or his symptoms.
I am satisfied that although the plaintiff continues to experience shoulder and back pain, these injuries do not contribute significantly to his pain and suffering.
Conclusion
I am satisfied that before the accident, the plaintiff was in good physical health. He assisted his wife with cooking, washing and cleaning the house. I am satisfied that his injured wrist was asymptomatic.
I am satisfied that the plaintiff suffered pain and discomfort to the right wrist, back, and right shoulder following the 2002 accident. Although the extent of the physical basis for his pain is now limited, I am satisfied that the plaintiff’s experience of pain is genuine and his consequent disabilities associated with his experience of pain, are real to him. I find that he suffered and continues to suffer a significant disability in relation to his right wrist and arm. I accept the evidence of the plaintiff and of his wife in relation to the impact of the plaintiff’s disability upon his daily life and functioning. I am satisfied that the plaintiff continues to suffer from clinical depression.
Wrongs Act 1936
I turn to the number to be assigned to the plaintiff’s injuries pursuant to the Wrongs Act 1936, which applied at the time. I bear in mind what was said by Barwick CJ in Wilson v Peisley:33
Thus, whilst the appellant must pay for bringing out that condition, what he must pay must, in my opinion justly reflect the fact that that condition was not merely latent in the respondent but that events, not of an unusual or unlikely kind, could and might in the ordinary course of life have evoked that condition had not the appellant’s negligence intervened.
33 (1975) 50 ALJR 207 at 209
I find that the plaintiff’s ability to lead a normal life was significantly impaired by the injury suffered in the 2002 accident for a period of at least 7 days. The wrist may have become symptomatic, in any event, but Dr Morrison was unable to provide a time frame. The arthritis might also have become symptomatic, but it was not possible to predict the time frame in which this may have occurred.
I am satisfied that having regard to the injuries suffered in the accident and the ongoing effect of those injuries, the plaintiff’s ongoing experience of pain and restriction of movement, as well as the level of depression that he described, and taking into account the pre-existing conditions, the appropriate numerical value to be assigned to the plaintiff’s total non-economic loss is 15. For a 2002 accident, this results in an award of $25,650.34
Past Economic Loss
34 S 35A (1)(b) and (c) Wrongs Act 1936
Defendants’ Submission
The defendant submitted that the plaintiff has not established any loss of capacity for work or that any claimed loss of earning capacity is the result of injuries suffered in the accident.
The defendant submitted that the evidence demonstrated that the plaintiff had been working to a greater extent than he had acknowledged and that the medical evidence and Mr Tippett’s evidence showed that the plaintiff had the capacity to undertake remunerative employment beyond what he asserted. The defendant also submitted that the plaintiff failed to establish that he made attempts to obtain work after leaving the Mega Snack Bar.
The defendant relied on the medical evidence and the evidence of Mr Tippett to submit that the plaintiff in fact had the capacity to work during the period in question.
The defendant submitted that the plaintiff had a residual earning capacity throughout. It was submitted that the failure to declare the pre-accident income from the Tea Tree Plaza Yiros Bar ought to lead to the court to reject the plaintiff’s evidence and disallow the claim for past economic loss.
Assessment of Past Economic Loss
I find that as a result of the injury to the right arm suffered in the 2002 accident, the plaintiff was totally incapacitated for employment from April 2002 until about mid 2005.
I am satisfied that his incapacity was productive of financial loss in the past. I find that but for the accident, the plaintiff would have taken up the position offered to him at the Tea Tree Plaza Yiros Shop. Mr Durmaz paid the plaintiff $480.00 for the four day work trial. I am satisfied that but for the accident, Mr Durmaz would have employed the plaintiff for eight hours per day for five days a week. Mr Durmaz would usually pay $500.00 to $550.00 gross per week for the kind of duties to be performed by the plaintiff. This would mean that the plaintiff could have earned about $18,200.00 to $20,000.00 per annum net.
I have regard to Dr Morrison’s evidence that the plaintiff’s recovery time after the operation in February 2003, could be up to twelve months. I am satisfied that the plaintiff did not recover. He was able to undertake some unskilled voluntary duties at Selma Manay’s shop in early 2005. He also undertook work trials in 2004 and 2005, although unsuccessful. I am satisfied that the plaintiff was unable to return to work or was unfit for work as a kitchen hand until at least mid 2005.
From mid 2005, the plaintiff attended at the Mega Snack Bar and was able to earn about $40.00 per week for a limited number of hours until the snack bar was sold in October 2007.
I find that the plaintiff had some residual earning capacity from mid 2005. However, it was limited and it specifically excluded any heavy or repetitive work. I find that the plaintiff cannot perform kitchen hand work or work as a farm labourer. I am satisfied that he is unable to work as a teacher because of his language difficulties. He is unable to work as a security guard because the work is too physical.
I find that the plaintiff has had at least a partial incapacity for work since about mid 2005 as a result of injuries suffered in the 2002 accident. I am not satisfied that there is any failure by the plaintiff to mitigate his loss by attempting or seeking alternative or further employment. I find that the plaintiff will continue to be partially incapacitated for work. I take into account the plaintiff’s susceptibility to aggravation of his pre-existing wrist injury in considering the vicissitudes of life. Having regard to all of the evidence, I consider that the plaintiff ought to receive an amount equivalent to three years loss of income during the period that the plaintiff was totally incapacitated for work from April 2002 to June 2005. That equates to about $60,000.
I have regard to the judgments of Cullen v Trappel35 and Hillier v Hewitt36.
35 (1980) 146 CLR 1
36 [2001] SASC 225
I am satisfied that I ought to award damages upon the basis of a 50% loss of earning capacity from mid 2005 to the present time. This equated to a past net loss of income of approximately $36,000.00 to $40,000.00. The total of past economic loss is approximately $91,000.00 to $106,040.00. I deduct the sum of $4,640 in relation to the plaintiff’s earnings between mid 2005 to October 2007. I round off the award for past loss of earnings and award the sum of $96,000.00 for past economic loss.
Past Superannuation
The plaintiff is entitled to an award for loss of past superannuation entitlements. I propose to calculate the award for past superannuation at 9%. Adopting a broad axe approach, this results in an award of $8,000.00.
Future Economic Loss
The plaintiff is entitled to damages for future economic loss for the period during which he is likely to be incapacitated for work in the future. I must consider the plaintiff’s capacity to earn income for the remainder of his working life if he had not suffered an injury in the accident, and compare it with his present incapacity.37
37 Ritter v Kenny [2009] SASC 139
I have regard to the period that the plaintiff has already been out of work, the nature of his injuries, his ongoing incapacity for work, his difficulty with the English language, his limited education, age and the overall complexity of the return to work situation referred to by Dr Morrison.38 I am satisfied that it is probable that the plaintiff will suffer a loss of earning capacity during his working life.
38 T549-550
I take into account future events having regard to the degree of probability of those events occurring.39
39 Malec v Hutton (1991) 169 CLR 639, 643
I find that the plaintiff will continue to suffer a significant ongoing incapacity as a result of his injury affecting his earning capacity into the future. He will be unable to undertake heavier activities, repetitive work or crowd security work. I find the plaintiff’s loss of earning capacity will continue to be productive of financial loss. The plaintiff submits that I should assess damages under this heading upon the basis of a 50% loss of earning capacity ongoing from the present time into the future.
This would result in an annual loss of about $9,100.00 net to $10,010.00 net per year. That is, a likely rate of between $175.00 to $192.50 net per week.
The plaintiff is aged 43 years. For a 43 year old male, applying a regular loss of $1.00 per week to age 65 and also applying a compound interest rate of 5% per annum, the multiplier is 681.3.40
40 Assessment of Damages for Personal Injury and Death (4th Ed) Harold Luntz Table 3B
The plaintiff submits that a discount rate of 20% for contingencies is appropriate. This would result in an approximate range of $95,381.00 to $104,920.00 for future economic loss.
That discount rate takes into account both favourable and unfavourable contingencies such as the prospect of the pre-existing injury becoming symptomatic, ill health, unemployment and accident.
I must determine compensation for the plaintiff’s loss of earning capacity. However, that is not a matter of “mathematical calculation”,41 particularly in view of the plaintiff’s lack of an established work history. Although his pre-accident employment at the Tea Tree Plaza Yiros Bar provides a guide, it does not form the basis for a precise calculation argued for by the plaintiff. Rather, it is necessary to fix a “global sum which represented fair compensation for injuries sustained”, subject to the provisions of the Wrongs Act 1936.42 I accept the plaintiff’s loss of earning capacity is in the order of 50% and in general terms, I accept the plaintiff’s calculation. I also accept that the discount rate of 50% is appropriate.
41 Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649
42 Carson v Knott [1999] SASC 71, [19]
Adopting a “broad axe” approach, I award the plaintiff the sum of $100,000.00 for future economic loss.
Future Superannuation
The plaintiff is also entitled to an award for loss of future superannuation. Taking account of various contingencies, I assess the loss of future superannuation at the rate of 11%. I round up the calculation and I award $11,000.00 under this heading. There is no interest payable on this amount.
Future Travelling and Medical Expenses
The defendant submitted that the plaintiff did not make out his claim for future medical treatment. Although Dr Morrison said that the plaintiff did not need future treatment from an orthopaedic point of view, I am satisfied that the plaintiff’s experience of pain and his depression will require ongoing treatment from a general practitioner.
The plaintiff submits that having regard to the special damages in Exhibit P16, and the attendance at medical providers (agreed as to quantum only) for the last 3 years, there has been an average expenditure of approximately $400.00 per annum. These attendances relate to consultations with general practitioners and physiotherapists.
I propose to make an award that is an allowance for the next ten years, for expenses in relation to general practitioner consultations, and medications such as Endep, Endone and antidepressants. I propose to make only a modest allowance for travelling expenses. Adopting a broad axe approach, I award the sum of $3,000 for future expenses.
Voluntary Gratuitous Services
Having regard to the evidence of the plaintiff and of his wife, I am satisfied that since her arrival in Australia in June 2002, the plaintiff’s wife has been rendering the plaintiff gratuitous services. I accept that this assistance extended to helping the plaintiff button up his shirts. I am satisfied that the plaintiff is entitled to an award for gratuitous services. I am satisfied that if his wife’s services had not been provided, other arrangements would have been necessary.
I have regard to the provisions of s 35A(1)(g) of the Wrongs Act 1935. In my view, the plaintiff is entitled to an award of damages in relation to the services of his wife. I note that the damages are not to exceed four times the State average weekly earnings at the appropriate time.43
43 S 35A (1)(h) of the Wrongs Act
As a general guide only, I have regard to the State weekly earnings for the second quarter of 2002 were $680.50 and for the second quarter of 2009 were $922.50.44
44 Plaintiff relies on average weekly earnings website - plaintiff's written submission page 48
The plaintiff submits that this results in an amount of $3,206.00. Section 35A(1)(h) of the Wrongs Act allows this amount to be increased if the court is satisfied that the gratuitous services are reasonably required by the injured person. Having regard to the submissions of both parties, I adopt a broad axe approach. I award the plaintiff the sum of $3,000 for gratuitous services.
Future Personal Care
The plaintiff submitted that future gratuitous services from the plaintiff’s wife will be required having regard to the ongoing residual effects of his injury. I agree. I adopt a broad axe approach and award the sum of $2,000 in respect of future personal care.
Household Maintenance/Gardening
The plaintiff submitted that his ongoing incapacity will extend to the heavier tasks of household maintenance and gardening. The defendant submitted that the evidence of Dr Morrison, Dr Mills and Mr Tippett indicated that the plaintiff is able to do such things. I have found that as a result of the accident, the plaintiff continues to experience pain which limits his functioning. I have found that the plaintiff will not be able to engage in any heavy labouring activities. I adopt a broad axe approach and award the sum of $2,000.00 under this heading.
Special Damages
Special damages were agreed as to quantum only. The plaintiff did not pursue proof of the rehabilitation costs of the Department of Education, Employment and Workplace Allocations.
The plaintiff withdrew his claim for the cost of the consultations with Dr Mehta between 5 September 2005 and 6 March 2006. This reduced the amount claimed in Exhibit P16 by $301.95.
The defendant submitted that the plaintiff’s claims for physiotherapy around the same period should also be disregarded.45
45 Relying upon p251
Dr Mehta described the accident of 23 August 2005 as a ‘very minor one’. I accept the plaintiff’s evidence that he did not suffer any significant injury at that stage.
I am satisfied that the physiotherapy treatment surrounding the dates following the accident in August 2005 related to the 2002 accident.
I award the plaintiff the total sum of $11,057.50 special damages.
Interest
I turn to the question of an award of interest for past economic loss and voluntary and gratuitous services. I adopt a rate of 6%46 to the total, reduce it by approximately half and apply it to the period of seven and a half years since the accident. Adopting a broad axe approach, I award the sum of $18,000 interest.
Summary of Awards
46 District Court Rules, Third Schedule

Non economic loss

$25,650.00

Past economic loss

$96,000.00

Past superannuation

$8,000.00

Future economic loss

$100,000.00

Future superannuation

$11,000.00

Future travelling/medical expenses

$3,000.00

Voluntary/gratuitous services

$3,000.00

Future personal care

$2,000.00

Household maintenance/gardening

$2,000.00

Special damages

$11,057.50

Interest

$18,000.00

Total

$279,707.50

ORDER

There will be judgment entered for the plaintiff in the sum of $279,707.50 including interest.
The parties are entitled to be heard on the issue of costs and any other consequential orders

Non economic loss	$25,650.00
Past economic loss	$96,000.00
Past superannuation	$8,000.00
Future economic loss	$100,000.00
Future superannuation	$11,000.00
Future travelling/medical expenses	$3,000.00
Voluntary/gratuitous services	$3,000.00
Future personal care	$2,000.00
Household maintenance/gardening	$2,000.00
Special damages	$11,057.50
Interest	$18,000.00
Total	$279,707.50