Cooper v Ince - [2000] WADC 290

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: COOPER -v- INCE [2000] WADC 290

CORAM: WISBEY DCJ

HEARD: 3-5 OCTOBER 2000

DELIVERED : 14 NOVEMBER 2000

FILE NO/S: CIV 1210 of 1998

BETWEEN: FRANK COOPER
Plaintiff
AND
ROBERT MOSTYN INCE
Defendant

Catchwords:

Damages - Measure of damages for personal injuries suffered in road accident - General damages - Extent of past loss of earnings and loss of future earning capacity - Necessity for future treatment - Turns on own facts

Legislation:

Nil

Result:

Award of damages of $3,164

Representation:

Counsel:

Plaintiff: Mr D R Clyne
Defendant: Mr J R Brooksby

Solicitors:

Plaintiff: Simon Walters
Defendant: Greenland Brooksby

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

Nil

Case(s) also cited:

Watts v Turpin (1999) 21 WAR 402

WISBEY DCJ: On 2 April 1997 the plaintiff, a 51 year old security officer born 20 July 1949, was involved in an accident when his motorcycle collided with the defendant's motor car which moved into its path at the intersection of Sackville Terrace and Holbeck Street, Doubleview. It appears that the motorcycle struck the car on its lefthand side and the plaintiff was thrown over the car coming to rest on the ground on the driver's side. The defendant having admitted liability, the action comes before the Court as an assessment of damages.
Pleadings are required to identify and elucidate the controversy between the parties requiring adjudication, and it is an understatement to say that in this case that objective was not realised. It is also to be observed that the schedules of past economic loss, loss of earning capacity, loss of superannuation, and future medical treatment, filed in accordance with O 5 of the District Court Rules, were abandoned, and further schedules substituted at the start of the trial. In those circumstances their usefulness was somewhat truncated. Indeed it is difficult to conclude that they are a true indication of the plaintiff's expectations.
In the event, and following an amendment to the statement of claim during trial, the position is that the plaintiff claims to have sustained soft tissue injuries to the cervical, thoracic, and lumbar spine, left buttock, and left knee, together with abrasions, producing ongoing pain and limitation of movement in the vertebral column of an incapacitating nature, significantly reducing his capacity to engage in his chosen vocation, and necessitating ongoing medical investigations and treatment.
In order to evaluate the issues referred to, it is necessary to examine the evidence.

The plaintiff

The plaintiff was born in the United Kingdom and ceased education at junior high school level when he was 15½. He stated that he then engaged in various forms of manual vocational activity before immigrating to Western Australia when he was 20 years old.
Upon arrival in Perth the plaintiff obtained employment at Sir Charles Gairdner Hospital variously as a nightshift orderly, ambulance driver and assistant transport officer, intermittently for 15 to 17 years. Upon leaving the hospital he managed TAB agencies for three years, and claimed to have given up that work because the required hours became excessive. He then returned to Sir Charles Gairdner Hospital for a short time, before becoming a limousine driver at Burswood Casino. That employment ceased because of differences with the employer when the plaintiff was approximately 38 years old.
The plaintiff stated that the economy was depressed but he managed to get employment as a storeman with GRI Industries, graduating to a delivery truck driver, and remained there for 12 months until he was retrenched. It appears that was the catalyst for him embarking upon a retraining course at the Mount Lawley Technical College to enable him to become a security officer. It appears that he qualified in about 1995 and obtained work with MSA Security where he claimed he was often required to work 14 hour shifts, (although that is difficult to accept). He stated that it was difficult to get full‑time employment as a security officer.
The plaintiff's wife died of cancer on 29 September 1995 following a 2½ year battle with the disease, and during that time the plaintiff stated that he nursed her and was only able to do limited part‑time work as a crosswalk attendant. The plaintiff claimed that following his wife's death he had difficulty achieving a psychological equilibrium, and because he did not seek out further employment, MSA Security advised that his services would no longer be required. As a consequence the plaintiff approached Brian Herbert, the proprietor of Wheelers Pharmacy, Scarborough Beach Road, Scarborough, and obtained employment as a security officer. He has worked there ever since. Initially he worked one or two nights a week, building up to three hours every night of the week. He had hoped to increase his hours of work but because of the accident has not been able to do so.
When describing the accident, the plaintiff stated that he observed the defendant's car pull out in front of his bike, and consequently braked but struck the front lefthand car wheel area and was thrown over the top of the vehicle landing, it would appear, on his left shoulder. He was stunned and got up and walked back to the vehicle to speak to the female passenger. He was able to leave the accident scene independently, and subsequently attended his general practitioner, Dr Naylor. At that time the plaintiff appeared to have fared reasonably well but the following day was experiencing difficulty. As he put it:
"The whole spine. The whole back. I couldn't move. I couldn't do nothing. It was that tender they couldn't even do proper physio on it".
The plaintiff stated that all he could do was lie on the floor and try to do exercises to strengthen his back enough to carry on. He denied having prior back problems, and consulted Dr Naylor on 42 occasions between the date of the accident and 17 January 2000.
The plaintiff underwent a course of physiotherapy, which on his account did not assist his symptoms, and had chiropractic and manipulative therapy. He claimed to receive some benefit from manipulative therapy but ceased treatment when ICWA declined to further meet the costs. In addition he has had, and continue to have, the usual regime of analgesics and anti‑inflammatory medication.
It was the plaintiff's evidence that essentially he is obliged to rest for most of each day to enable him to cope with his three hours employment. He stated that but for the accident it was his intention to get employment involving 40-50 hours a week, and get on with his life. He stated that he experienced considerable difficulty washing dishes or undertaking any other household activities. The substance of the plaintiff's evidence‑in‑chief was that his symptoms were unremitting and considerably debilitating.
In cross-examination the plaintiff stated that his motorcycle was doing approximately 20km/h at the point of impact.
The plaintiff was cross‑examined concerning an alleged relationship with Ms Marilyn Van-Tiel, and confirmed that an intimate relationship commenced between them approximately six months after his wife's death. He claimed that it was an "off and on" relationship because she was a manic depressive. He stated that they had a very healthy sexual relationship for the first 12 months and the relationship continued on an intermittent basis until December 1999, although sexual activity was very limited because of his pain after the accident.
The plaintiff denied assisting in the erection of a fence for Mrs Van‑Tiel, relevantly stating:
"No. They was building a house next door to her and there was five pieces, sheets, she wanted put in the ground. I said, 'You've got no chance of me lifting them'.
But you did lift them didn't you? No."
He also denied chopping down a tree for Ms Van‑Tiel but claimed to have chopped off a white ant eaten branch, an activity which caused a sensation in his back similar to being knifed. When pressed, he confirmed assisting to erect super 66 sheeting for a fence and stated that he just walked the sheets and Ms Van‑Tiel did most of the lifting. He claimed that at the time he was in a lot of pain, and any physical activity caused pain. He further acknowledged dropping the super 66 sheets into some sandy earth and fixing them with screws.
In respect of his sexual activities with Ms Van‑Tiel, he confirmed the relationship continued up until the end of 1999 but asserted that she was pressurising him for sex as she was a nymphomaniac - a rather surprising assertion about someone with whom he had an ongoing relationship. He claimed that before the accident they were having sex six to seven times a day, but that sexual activity ceased after the accident.
The plaintiff claimed he was unable to use buses as the bus movement aggravated his symptoms. It was for that reason that he did not undertake a gym programme recommended by Professor Harper when ICWA refused to meet the cost of travelling by taxi. The impression I have of the evidence on this issue is that the plaintiff lacked motivation.
The plaintiff claimed that the activity of leaning forward for three to four minutes washing dishes or vacuum cleaning made him feel like he was going to "keel over".

Winston Austen Seth

Mr Seth, an old family friend, described the plaintiff as a happy‑go‑lucky individual who deteriorated after the accident. I thought his evidence was unconvincing.

Catherine Joan McHutchinson

Mrs McHutchinson, the plaintiff's youngest daughter, stated that the plaintiff was very active around the home prior to the motor vehicle accident but had considerable limitations thereafter, and basically just spent his time on the couch. It is apparent that she ceased living at the family home in or about October 1998 when she married. She claimed that her father spent the majority of his time at home flat on his back. She indicated that he was at liberty to borrow her car whenever required, which suggests that even if his account of bus travel was correct, he could have attended the gymnasium programme had he so desired.

Dr Ronald John Naylor

Dr Naylor has been the plaintiff's general practitioner for many years and stated that the plaintiff had an unremarkable pre‑accident history. He acknowledged that there had been a consultation in 1996 relating to cervical symptoms which he claimed were of short duration. The plaintiff has attended Dr Naylor on 42 occasions between the accident and 7 January 2000, but has since only attended for the purpose of pre‑trial consultation.
Dr Naylor's reports were received in evidence as Exhibits 2(a) to (j).
The first report dated 17 August 1997 (Exhibit 2(a)) indicated that the plaintiff had sustained a moderate to severe soft tissue injury to the neck and proximal thoracic spine and, like the statement of claim at the commencement of the hearing, did not refer to an injury to the lumbar spine.
In his report of 6 October 1998 (Exhibit 2(c)) Dr Naylor stated that the plaintiff continued to suffer from severe soft tissue injury to all levels of the vertebral column; had a great deal of disability; was unable to do any full‑time work; and noted that examination revealed tenderness, swelling and restriction of movement of the cervical, thoracic and lumbar spine. Apparently the plaintiff had told Dr Naylor that he could not sit or stand still for long periods of time.
In his report of 9 February 2000 (Exhibit 2(h)) Dr Naylor noted that the plaintiff continued to have constant pain in the back exacerbated by prolonged standing, bending, or lifting, together with some neck pain. It appears from the report that the emphasis was on back disability.
The final report dated 20 August 2000 (Exhibit 2(j)) referred to the fact that the plaintiff's symptoms had been made worse by some restriction of movement.
When asked for his comments on views expressed by the consultant orthopaedic surgeon Mr Edibam as to the duration of soft tissue injuries, Dr Naylor stated that his experience was that soft tissue injuries could take years to settle because there were "micro injuries to discs, which injuries could not be identified by presently known investigative procedures".
In cross-examination Dr Naylor was happy to ascribe the cervical problem in 1996 to some minor incident, and stated that it settled with some home heat and exercises. He stated that on examination of the plaintiff he detected muscle spasm which he considered objective confirmation of symptoms. He confirmed his diagnosis of damage to muscle and supporting tissues around the vertebral spine. When pressed about objective signs Dr Naylor confirmed that there was no radiological evidence of compromise but added:
"Well, there certainly are some changes but how significant they are on the scheme of things, God only knows".
Referring to Mr Edibam's view that clinical examination did not reveal much in the way of objective symptomatology, Dr Naylor said:
"The signs this man has are intermittent. They are not there all the time but, as I say, it depends on whether he sees him on a good day or a bad day. Frankly that's what it comes down to".
Dr Naylor's records suggested that the plaintiff complained of lumbar spinal symptoms as early as 29 April 1997. He related the alleged lumbar problem to the accident in that he felt it might have resulted from strain imposed on the lumbar joints by reason of the plaintiff's posture, and because of problems at a higher level. He agreed that exercise and activity were therapeutic, but felt that press‑ups were contra indicated because they would place strain on the shoulders and lower back. Dr Naylor asserted that he had been able to detect muscle spasm and stiffness, which he regarded as objective signs that could not be contrived.

Professor Andrew Craig Harper

Professor Harper, an occupational physician, saw the plaintiff at the request of his solicitor on 9 February 1999, and reviewed him on 13 July 1999, 4 April 2000 and 4 September 2000. His reports covering those consultations were received in evidence as Exhibits 4(a) to (e).
In his report of 9 February 1999 (Exhibit 4(a)) he noted that the plaintiff's security guard work involved sitting and standing with the freedom to change his position as required. He reported that the plaintiff claimed to have had extensive physiotherapy, manipulative physiotherapy, acupuncture and hydrotherapy. The plaintiff told Professor Harper that he was taking analgesics once or twice a week, and swimming several times a week. The plaintiff complained of a phenomenal level of pain down the spinal column which prevented him lifting, washing clothes and vacuuming. The pain was allegedly constant and devastating.
Professor Harper obtained a history that the plaintiff had been totally incapacitated for some three to four months post‑accident, and then returned to work initially for three to six hours per week in an effort to rehabilitate himself. The plaintiff claimed that prior to the accident his health was excellent, he had not experienced any previous neck, thoracic or back pain, and was "as fit as a mallee bull". The plaintiff claimed that as a result of the accident he was good for nothing, his sitting or standing tolerance being limited to 30 minutes, and walking tolerance to 10 minutes. Professor Harper considered the plaintiff to be incapacitated for gainful employment, stating that he was surpassing his work capacity by doing three hours per day as a security guard. Nevertheless he prognosticated that there would be gradual improvement in symptoms and an increase in work capacity.
Professor Harper's diagnosis was of moderately severe soft tissue injury to the cervical, thoracic and lumbar spine. He recommended a graduated physical exercise programme at a gym, which the plaintiff did not pursue for reasons which I have already touched upon.
In his report of 7 April 2000 (Exhibit 4(d)) Professor Harper noted that:
"Physically there was little to find in terms of abnormal signs. Range of neck movement was slightly restricted in side flexion and rotation to left but movement was otherwise full and unrestricted. There was no neck tenderness or upper back tenderness. Range of shoulder movement was unrestricted. Range of low back movement was normal in side flexion rotation extension. In forward flexion his hands reached the mid to upper shin. There was no indication of nerve root irritation and examination of the legs was completely normal. There was minor tenderness in the lumbar spine. His musculature was normal and posture normal. He had normal agility. … There has been considerable improvement in a range of neck movement and also improvement in range for low back movement. Neck tenderness has resolved and thoracic spine tenderness has also resolved."
Professor Harper anticipated continuing improvement because of lessening of symptoms and a consequent increase in vocational capacity.
In his report of 4 September 2000 (Exhibit 4(e)) following the pre‑trial review, Professor Harper reported that the plaintiff appeared to be in distress, sighing and groaning. It is difficult to conclude other than the impending trial was affecting his presentation. When asked to address the view expressed by Mr Edibam that soft tissue injuries resolve within a relatively short passage of time, Professor Harper stated that in his experience symptomatology commonly went on for one to three years or more.
In cross‑examination Professor Harper stated that the plaintiff's progress had been difficult to appraise, and felt that his condition had probably improved to some degree overall - that does not seem to accord with the plaintiff's evidence. Professor Harper described the improvement as marginal based on the fact that on physical examination the plaintiff was able to move through a fairly normal range of movement, and he expected the plaintiff to increase his hours of work in the future.

Dr Philip Michael Finch

Dr Naylor referred the plaintiff to a pain management physician Dr Finch who first saw him on 21 December 1999, and his reports were tendered as Exhibits 5(a) to (d).
In his report of 21 December 1999 (Exhibit 5(a)) Dr Finch expressed the view that the plaintiff had suffered a forced right lateral flexion of his neck, and had been left with chronic cervical and low back pain. He observed that the plaintiff claimed not to have a history of spinal pain. Dr Finch described him as a fairly fit looking man who was not overly depressed, with a virtually normal gait, who appeared to have difficulty with lumbar flexion. He considered that there was a reduced range of left cervical rotation by about 50 per cent, and some reduction of lateral flexion. He concluded that the plaintiff had quite significant mechanical low back pain, possibly due to a disruption of the L4/5 disc, and recommended discography for diagnostic purposes. Dr Finch considered that there was pain in the posterior structures of the cervical facet joints. The arrangement made for discography was cancelled when ICWA would not meet the cost, and it seems from Dr Finch's evidence that the cost of the investigative procedure was of the order of $500 to $1,000.
In a report of 6 September 2000 (Exhibit 5(d)) Dr Finch confirmed that the plaintiff was not experiencing symptoms suggesting neurological compromise. He noted that the plaintiff claimed that prior to the accident he had been working 14 hours per day for MSA. The report suggests that there was little clinically observable evidence of difficulty, and demonstrates that Dr Finch was unable to make a clear diagnosis. His provisional diagnosis was of a disc injury in the lumbar region and a joint problem in the cervical region, but that was his "best guess".
When asked to address the views expressed by Mr Edibam as to the longevity of soft tissue injuries Dr Finch stated:
"Well, unfortunately, the plaintiff is not better as far as I can ascertain so may be that's not correct. I don't know. … If you've got a muscle tear or something like this, it heals up very quickly."

It seems from Dr Finch's evidence that the plaintiff indicated his pharmaceutical requirements were at a significantly higher level than that indicated to Professor Harper.

Mr Michael Arthur Lee

Dr Naylor referred the plaintiff to the neurosurgeon, Mr Lee, some four months post‑accident, and his reports were received in evidence as Exhibits 6(a) to (c).
In the first report dated 20 August 1997 (Exhibit 6(a)) Mr Lee noted that the plaintiff was experiencing predominantly neck pain extending to the mid dorsal region, with restriction of neck movement. He noted that there was a moderate degree of cervical restriction, but no abnormal neurological signs. Mr Lee did not consider that there was a surgically treatable lesion.
Following review on 7 September 2000 Mr Lee noted that the plaintiff continued to experience neck pain of variable severity, and some high lumbar pain, but considered that there had been clinical improvement. He noted that the plaintiff had tried to increase his hours of work but that any increase significantly exacerbated symptoms. He reported that the symptoms complained of were entirely consistent with what one would expect in a person with age related degenerative changes in the cervical and lumbar spine who had been thrown into the air and landed heavily. He considered that any restriction in competing in the open workforce was predominantly related to the amount of physical activity the plaintiff could sustain. Mr Lee assessed a 5 per cent impairment in the cervico thoracic region and a 5 per cent impairment in the lumbar region.
When asked to address the views expressed by Mr Edibam, Mr Lee stated:
"Well, I think what one might expect and what actually happens are not necessarily the same thing. It will be nice if it happened but sometimes the forces involved precludes such a development. … What I am saying is that one would have a reasonable expectation as to what might happen in terms of resolution of symptoms. The fact that it doesn't quite work out the way you anticipated will - really means that one has to reassess the situation and try and find explanations and this is one explanation."
In cross‑examination Mr Lee expressed the view that soft tissue injuries do tend to settle with the passage of time, and indicated that the plaintiff should get better with time.

Mr Ratan Cavashah Edibam

The defendant referred the plaintiff to the orthopaedic surgeon, Mr Edibam, who first saw him in March 1998, and subsequently in October 1999 and September 2000. Mr Edibam's reports were tendered in evidence as Exhibits 3(a) to (e).
In his report of 26 March 1998 (Exhibit 3(a)) Mr Edibam set out the history and presenting symptoms. He noted that on clinical examination the plaintiff's posture was normal and there was no evidence of any muscle guarding, spasm or deformity in the spinal column. He reported that there was no radiological evidence suggesting severe soft tissue injuries, but only degenerative changes consistent with the plaintiff's age. He reported:
"There is certainly no demonstrable bony injury as a result of the accident, nor is there any evidence of any significant soft tissue injury as a result of the accident. It appears that the fall would have triggered off symptoms and pre‑existing degenerative changes in his cervical and lumbar spine which appear to be persistent. As to the severity of his symptomatology I am unable to give you any assessment, as that is very difficult and consequently assessment of any incapacity becomes a very difficult exercise. On the whole I would have thought that the degree of degenerative changes that he has in his cervical and lumbar spine will give him some degree of aches and pain, which should not prevent him from returning to work as a security officer who was working part‑time in any case."
In his report of 8 October 1999 (Exhibit 3(b)) Mr Edibam noted that the plaintiff complained of constant symptoms aggravated by any form of physical activity. Again there was at that time little clinical evidence suggesting incapacity, causing Mr Edibam to report:
"In spite of the fact that Mr Cooper continues to complain of significant spinal pain, in fact he is complaining of pain involving his whole spine, which is constant, present 24 hours a day, easily aggravated by any activity, there is no clinical or investigative evidence of abnormality to explain his symptoms. He has some minor degenerative changes in his lumbar spine, and minor disc degeneration in his cervical spine, particularly at C4/5 which may give rise to minor discomfort from time to time but certainly would not be responsible for the constant severe unremitting pain that he alleges he suffers from, suggestive of malign pain and consequently I feel that his symptomatology is not related to any pathology in his cervical, thoracic or lumbar spine and that other factors may be influencing his complaints and symptoms. Whether he has psychogenic pain or not, I am not in the position to comment on as that is outside my speciality, but I would state that any injury that he might have sustained at the time of the accident was certainly very minor as there is no demonstrable bony or soft tissue injury. If he had sustained muscle or ligamentous injuries. The natural course of events is that they heal and become asymptomatic within a matter of weeks. Consequently, any ongoing treatment directed to his spine may in fact, cause perpetuation of his symptoms and reinforce his symptoms. I would suggest that all attempts should be made to rehabilitate him and get him back to work as soon as possible, and his case should be finalised as early as possible. I am sure that will result quick resolution of his symptoms afterwards."
In his final report dated 7 September 2000 (Exhibit 3(e)) Mr Edibam noted that subjectively there had been no improvement in the plaintiff's condition. He stated that he did not feel the demonstrated changes on radiological examination were responsible for the ongoing symptoms as they were age related physiological changes that were to be expected. Mr Edibam stated that there was no objective way of supporting the plaintiff's symptoms.
In his evidence‑in‑chief Mr Edibam expressed surprise at Dr Naylor's clinical assessment of muscle spasm. He expressed the view that if lumbar symptoms were not detected for some weeks after the accident it was difficult to relate them to the consequences of the accident, and would not accept that the plaintiff's symptoms could be aggravated by bus travel.
In cross‑examination Mr Edibam stated that muscle spasm could be objectively determined, but voluntarily created. He doubted Dr Naylor's findings in that regard. He felt some of the plaintiff's symptoms could be related to osteoarthritic changes.

Brian Newton Herbert

Mr Herbert, the proprietor of Wheeler's Pharmacy in Doubleview, has employed the plaintiff as a security guard for about five years. His pharmacy is open from 8.00am until 9.00pm seven days a week. The plaintiff was initially employed every evening from 6.00pm until 9.00pm. Mr Herbert's recollection was that the plaintiff had taken some time off following the accident, and he stated that although the plaintiff was still working three hours per evening, he was only working five nights, and could be working seven if he so wished. Mr Herbert stated that the plaintiff was complaining all the time about his back and neck, and professed to be unable to do little jobs around the pharmacy such as changing light globes and emptying rubbish. It was his assessment that since the accident the plaintiff's movements were more restricted. Mr Herbert acknowledged that in a letter signed by him and dated April 1997 he had indicated that the plaintiff was working a six day week prior to the accident. It was his understanding that the plaintiff was being paid $200 a week and had been receiving that amount for the whole time he had been working at the pharmacy. Mr Herbert was somewhat non‑committal about the prospects of the plaintiff obtaining increased duties at the pharmacy.

Marilyn Van‑Tiel

Ms Van‑Tiel met the plaintiff at Wheeler's Pharmacy in about April 1996, and it appears that within a matter of months they commenced an intimate relationship, which continued for some time after the accident. She stated that the sexual side of the relationship was unaffected by the accident, but that sexual activity decreased towards the end of 1997 when she was placed on anti‑depressant medication which reduced her libido. She stated that as a result the plaintiff endeavoured to get her to change her medication.
Ms Van‑Tiel suggested that the plaintiff's physical capacity was not greatly affected by the accident. She stated that he helped her stepfather chop down an old tree, erected a section of a super 66 fence at the side of her house, and laid some cement slabs. In respect of the fence it appears that the plaintiff assisted Ms Van‑Tiel erect five sheets which necessitated him digging a trench and subsequently refilling it. She stated that the tree lopping activity took between half to three quarters of an hour, and that the concrete slabs were laid over an area about the size of a carport - 6 x 4 metres.
In cross‑examination it was not suggested to Ms Van‑Tiel that the plaintiff did not assist in the tree lopping, fence erecting, or slab laying, but it was suggested to her that the physical component of his activities was limited.
She agreed that she contacted ICWA suggesting that the plaintiff was malingering, and stated that she did so because she did not see a great deal of evidence of incapacity; although on reflection felt that her decision to do so was regrettable. She denied that she was motivated by vindictiveness. She acknowledged having reported the plaintiff to the police concerning his security agent's qualifications; and to the Claremont Murder Task Force because of some concern she had about him stalking her. It was evident that she was a manic depressive and because of that condition behaved erratically from time to time. That is a factor which must necessarily be taken into account in evaluating her evidence, as must the nature of the reports she made about the plaintiff.
Ms Van‑Tiel confirmed having provided ICWA with a statutory declaration outlining the facts she referred to in evidence, and that she had subsequently repudiated the declaration; although in re‑examination she stated that the repudiation resulted from pressure from the plaintiff, and she confirmed the contents of the declaration. The statutory declaration was tendered in evidence as Exhibit 10 in which she stated inter alia:
(a)She had a healthy sexual relationship with the plaintiff both before and after the accident and that she did not observe the plaintiff to be restrained or restricted in any way from engaging in sexual intercourse, which he did daily and repetitively. She considered that some of the positions engaged in during sexual intercourse were not consistent with the plaintiff's symptoms.
(b)the tree lopping involved considerable effort but that the plaintiff did, during that activity, hold his hands on his back as if in pain.
(c)he did not show any restrictions when erecting the sheets of fencing.
I am mindful of the care that must be taken in evaluating Ms Van -Tiel's evidence. It is to be noted, however, that the plaintiff provided corroboration for some of what she said. It was clear that she was uncomfortable about giving evidence, but there was nothing in her demeanour to suggest she was not being truthful. Indeed I am satisfied that she was.

Ian Roy Macfarlan

Mr Macfarlan is the State manager for Thomas F Fitzpatrick & Associates, an investigation, risk assessment management, and security firm. He stated that he was a regular client of Wheeler's Pharmacy, and as such had met the plaintiff. He stated that he had discussed the prospect of the plaintiff's future employment with Fitzpatricks in approximately May 2000, and the plaintiff responded that because of his motor vehicle accident he might have difficulty performing his duties, but was confident of being able to do so in the longer term.

The nature and extent of the plaintiff's injuries

I did not find the plaintiff a convincing witness, and consider that he exaggerated both the extent of his symptoms and the impact that the accident has had upon him. The plaintiff's evidence when cross‑examined concerning his relationship with Ms Van‑Tiel, the extent of the sexual side of the relationship, and the manner in which he addressed the labouring activities which he undoubtedly performed for her, left me with a lack of confidence in his testimony. There is little doubt that he prevaricated when addressing these issues, and made concessions only when confronted with the fact that Ms Van‑Tiel would be giving evidence. His verbal assault upon her sexual proclivity, having regard to the extent and duration of their relationship, did him little credit.
Where there is any material conflict between the evidence of the plaintiff and that of Ms Van‑Tiel, I accept the evidence of Ms Van‑Tiel. That assessment sits comfortably with the absence of any real objective clinical or radiological evidence supporting the alleged pathology, and the inability of any of the medical witnesses to achieve a comprehensive diagnosis (a prerequisite one would have thought to making any meaningful prognosis).
The acceptance of the plaintiff's account of symptoms is in this case, as it is generally in "soft tissue injuries", fundamental to the diagnosis and prognosis, and having regard to the view I formed of the plaintiff, does not provide a useful basis for assessment.
I accept the views expressed by Mr Edibam both as to diagnosis and prognosis. Those views cannot be said to be at variance generally with the views expressed by the neurosurgeon, Mr Lee, who gave me the impression that he had some problems with the plaintiff's presentation. It is also to be noted that neither Professor Harper nor Dr Philip Finch could identify any objective evidence of difficulty.
The main support for the plaintiff's alleged incapacity came from Dr Naylor, the general practitioner, who not unnaturally accepted the plaintiff's complaints, and who appears to have ministered to him on at least 42 occasions without altering the course of events. I thought his evidence was subjectively based and having regard to my findings concerning the plaintiff's credit do not accept it.
In the result I find that in the accident the plaintiff sustained soft tissue injuries to the cervical and thoracic spine which may well have exacerbated for some short period degenerative changes. I am not satisfied that there has been any lumbar problems, and in any event would not on the facts have related them to the accident.

The plaintiff's economic history

The taxation returns submitted by the plaintiff (Exhibit 1) show the following income position:
30.6.91    Taxable income  $16,331.00
30.6.92    Social Security benefit  $13,074.00
Other income  $      90.00
30.6.93    Social Security benefit  $13,565.60
30.6.94    Social Security benefit  $12,898.74
Work income  $     913.00
AMP policy (surrendered)  $ 4,407.50
30.6.95    Social Security benefit (job search)               $ 6,874.90
Police Department (cross walk attendant)                $ 3,425.00
AMP policies (surrendered)  $10,240.00
30.6.96   Social Security benefit (job search)  $ 2,425.00
Bambridge Holdings  $ 3,346.00
Instant Alarm Security  $ 5,629.00
Veteran Holdings Pty Ltd (Wheeler's Pharmacy)      $ 2,750.00
Police Department (cross walk attendant)                $ 1,200.00
30.6.97    Veteran Holdings Pty Ltd   $ 9,150.00
Social Security benefit (new start)  $ 2,888.52
30.6.98    Veteran Holdings Pty Ltd  $ 7,520.00
Social Security benefit (new start)  $ 5,518.00
30.6.99    Veteran Holdings Pty Ltd  $10,730.00
Social Security benefit (sickness)  $ 5,308.00
It can be seen from the foregoing information that the plaintiff's earning capacity, in terms of ability to produce assessable income, has never been of a high order. In the years ended 30 June 1992, 1993 and 1994 he was almost entirely dependent upon social security benefits, and in the year ended 30 June 1995 had a modest income. It is the fact that his wife died of cancer on 28 September 1995 and his necessity to care for her may account in part for his lack of earnings in the years ended 30 June 1994, 1995 and to some extent 1996. It does not appear, however, that between the date of his wife's death and the date of the accident his earnings were of consequence, and having regard to the uncontradicted evidence of the relationship that commenced between the plaintiff and Ms Van‑Tiel in the latter part of 1996, I do not accept that the lack of economic activity was related to a grieving process, I find it to be entirely consistent with the plaintiff's long standing casual approach to vocational activity.
The plaintiff accepted in cross‑examination that since the end of January 1996 he has been employed solely by Wheeler's Pharmacy. He confirmed that he did not hold a security licence as he did not require one as an employee of the pharmacy. He stated that because of his incapacity it was pointless in renewing his licence because he was not physically able to do any other work. The plaintiff asserted that he was a good security guard and would get back to full‑time work in the security industry as soon as he was physically able to do so. When it was put to him that he had the offer of work with Thomas Fitzpatrick & Associates he initially had trouble recalling his discussions with Mr Macfarlan. It is to be noted, however, that a number of the propositions put to the plaintiff concerning the prospects of employment, were not supported by Mr Macfarlan. The plaintiff confirmed that he had not looked for any other work since commencing with Wheeler's Pharmacy in February 1996. Mr Herbert, the proprietor of Wheeler's Pharmacy, gave evidence that additional hours could be made available to the plaintiff if he could cope with them. It appeared, however, that the plaintiff has always earned $200 per week for his work at the pharmacy and Mr Herbert's evidence, particularly as he did not appear to have hands on involvement with the calculation and payment of wages, was unconvincing. In the result, apart from some allowance for wages lost during time taken off immediately post‑accident (for which the plaintiff has already been reimbursed by the defendant) I am not persuaded that the accident has had economic consequences.
In the absence of objective evidence of incapacitating pathology, and having regard to my findings in respect to the nature and extent of the plaintiff's injuries, I am of the view that the plaintiff has at all times been capable of working the number of hours that he would have wished to work had he not had the accident.
The injuries the plaintiff sustained in the accident may well have been incapacitating vocationally for some weeks thereafter but I am satisfied that they would have abated to a minor level within a period of 12 months. I would not assess the plaintiff's injuries at more than 6 per cent of a most extreme case. The plaintiff is therefore entitled to an award of $13,500 which subject to a statutory reduction of $11,000 results in an award of $2,500.
I am not persuaded that there is any necessity for future medical attention or pharmacological aids as I am confident that treatment will not alter the course of events.
As I have already indicated I am not satisfied that there has been a loss of earning capacity beyond that for which the plaintiff has already been reimbursed.
Outstanding special damages have been agreed at $664.
The plaintiff is entitled to an award of $3,164.