Crane v Boyd and Allianz Australia Insurance Ltd
[2018] QDC 177
•28 August 2018
DISTRICT COURT OF QUEENSLAND
CITATION:
Crane v Boyd and Allianz Australia Insurance Ltd [2018] QDC 177
PARTIES:
JAMES CLAPHAM CRANE
(plaintiff)
v
VINCENT BOYD
(first defendant)
and
ALLIANZ AUSTRALIA INSURANCE LIMITED
ACN 000 122 850(second defendant)
FILE NO/S:
DC No 5019 of 2014
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
28 August 2018
DELIVERED AT:
Brisbane
HEARING DATE:
20-21 August 2018
JUDGE:
Koppenol DCJ
ORDER:
1. There be Judgment for the Plaintiff against the Second Defendant for $2360.00.
2. The Plaintiff pay the Second Defendant’s costs of the proceeding assessed on the standard basis from 19 December 2014, fixed at $36,952.95.
3. The Second Defendant be entitled to set off the amount of the Judgment referred to in paragraph 1 hereof against the liability of the Plaintiff to it for costs.
CATCHWORDS:
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – PERSONAL INJURIES – motor vehicle collision - where liability admitted
QUANTUM OF DAMAGES – whether plaintiff suffered claimed injuries – whether medical and dental expenses established – whether economic loss or other loss established
EVIDENCE – CREDIBILITY OF WITNESSES – whether evidence plausible or reliable – evidentiary effect of contemporaneous documentary records
Motor Accident Insurance Act 1994, s 5(1)
Civil Liability Regulation 2014, Schedule, Item 89COUNSEL:
Plaintiff appeared on his own behalf
R Morton for the defendantsSOLICITORS:
Plaintiff appeared on his own behalf
McInnes Wilson Lawyers for the defendants
Background
Mr Crane was injured in a motor vehicle collision on 9 March 2011. He was the driver of one car into which another car violently collided. Mr Crane was not at fault. The defendants have admitted liability.
The trial was confined to the quantum of damages which should be awarded to Mr Crane.
Mr Crane acted for himself. His statement of claim sought damages of $276,000. At the trial, Mr Crane asserted that his claim represented only about one-half of his actual losses.
The statement of claim was particularised as follows:
Mandatory Final Offer (MFO) $85,000
Medical Costs $16,000
Loss of Income (due to injury) $50,000
Loss of Income (due to no vehicle) $120,000
Costs incurred $5,000
$276,000
Unusually, this was a case where the plaintiff included, as part of his total claim, the amount of an offer to settle which apparently had been made by the plaintiff to the defendants. The statement of claim described Mr Crane’s claim for the MFO as being:
“for medical costs for the future [as] my teeth were damaged beyond repair now caused by the prolongation of the insurance company Allianz”.
I will treat that aspect of this claim as if Mr Crane had claimed $85,000 for the medical and dental costs associated with his teeth.
Mr Crane gave evidence that the force of the motor vehicle collision threw him forwards and resulted in his forehead, nose and teeth violently hitting the steering wheel of his car. He suffered a whiplash injury to his back and shoulders. His right knee was also injured. He was in great pain. He was taken by ambulance to Redland Hospital where x-rays were taken and his condition was assessed. He was discharged later that day.
He suffered (and said that he continues to suffer) great pain and discomfort. He was unable to resume work. Within two months, cracks began to appear in some of his front teeth. Since then, four or five teeth have fallen out and ultimately, seven of his teeth were affected. He said that his insurance company (also, Allianz) told him that his car had been written off but it would provide him with a replacement vehicle within two weeks. No replacement vehicle was ever provided.
The record shows that Mr Crane was born on 4 May 1957. He was about 53 years 10 months of age at the date of the accident and is now 61 years 8 months old. He has received a Centrelink disability support pension for many years. He has suffered from mental disorders (including schizophrenia and alcohol dependence) since 1995 and is also a longstanding user of cannabis. He has been involved in six motor vehicle accidents since 2003.
I regret to say that I found Mr Crane to be a most unsatisfactory witness. He was often argumentative. He seemed to be offended by having to prove his claim for damages. He disputed the relevance of many of Mr Morton’s questions. He accused Allianz of treating him unfairly. He disputed the accuracy of various things which were recorded in the tendered medical and dental reports. He even denied suffering from schizophrenia. I explained to Mr Crane on a number of occasions that he was the plaintiff and that although liability had been admitted, he bore the onus of proving his claims for monetary damages, on the balance of probabilities. He seemed reluctant to accept that.
Remarkably, Mr Crane did not produce or tender a single document to support his claim. He said that he did have some supporting documents but they (and various other unspecified items) were in storage at Wynnum. He explained that he had been evicted from his rented house some time last year and the landlord had packed up his things and put them into a storage shed. He said that he had a key to the shed but declined the opportunity (which I gave him) to go to Wynnum and retrieve the relevant documents.
The defendants tendered hundreds of pages of detailed medical, dental and other documentation (Ex 3). They also called two expert witnesses (orthopaedic surgeon Assoc. Prof. Ian Dickinson and consultant psychiatrist Prof. Harvey Whiteford) to give evidence. They were not cross-examined by Mr Crane.
Medical and Dental Costs
Mr Crane claimed $101,000 ($85,000 plus $16,000) for dental and medical costs. The claim was merely asserted in evidence by Mr Crane. It was not supported by any medical or dental reports or statements.
The Redland Hospital records showed (Ex 3 p 247) that Mr Crane related chronic neck and back pain, a history of a motor vehicle accident in 2003 and a prolapsed disc in 2009. No mention was made in the records of any injuries to his mouth or teeth. A superficial abrasion was found over his left knee with mild bruising and his right forehead was slightly swollen. X-rays revealed no abnormality.
Mr Crane saw his general medical practitioner some hours after his discharge from hospital and again nine days later on 18 March 2011—but the medical records made no mention of any complaints about neck or back pain or facial or teeth injuries.
The medical records showed that Mr Crane did not make any complaint about anxiety related to the motor vehicle accident until he saw consultant psychiatrist Prof. Harvey Whiteford, at the defendants’ request, on 23 January 2017. Prof. Whiteford concluded (Ex 3 pp 31-32) that (a) Mr Crane did not suffer any psychiatric impairment attributable to the subject motor vehicle accident, and (b) there was no basis for saying that Mr Crane’s longstanding psychiatric condition or his symptoms of anxiety were caused, exacerbated or aggravated by the accident—given the other multiple conditions and stressors in Mr Crane’s life, both before and after the accident.
The defendants also arranged for Mr Crane to see orthopaedic surgeon Assoc. Prof. Ian Dickinson on 12 September 2016. Dr Dickinson’s opinion (Ex 3 pp 11-14) was that (a) the accident probably aggravated Mr Crane’s pre-existing neck and back condition for two to three weeks, and (b) his pre-existing condition may have resulted in increased symptoms over the years, but there was no evidence that that had been caused by the subject accident as opposed to his other five motor vehicle accidents.
The medical records revealed that Mr Crane had a long history of neck and back pain which extended back for many years prior to the subject accident. He had been prescribed various medications (including a narcotic medication) for chronic disabling pain, as well as medication for his longstanding schizophrenia, for many years both before and after the accident. There was no evidence that there was any change in the dose or frequency of prescription of that medication after the accident.
The reports of dental surgeon Dr Sam D’Agostino showed (Ex 3 pp 250-257) that Mr Crane (a) had been receiving extensive dental treatment prior to the time of the motor vehicle accident, and (b) had Medicare funds available for the treatment of his dental problems. Dr D’Agostino thought it possible that one dental restoration was damaged in the accident and said that it had later been repaired free of charge. However, Mr Crane gave evidence that he had no dental problems prior to the accident. That assertion was demonstrably incorrect (as inconsistent with the contemporaneous records) and is rejected.
The records of Redlands Gentle Dental Care showed (Ex 3 pp 463-469) that Mr Crane received significant dental treatment in the years after the accident. Significantly, they also recorded (Ex 3 p 470) Mr Crane trying to persuade the dentist in 2014 to provide written confirmation that his dental problems were related to his striking his face on the steering wheel during the subject motor vehicle accident. The dentist refused to do so.
Mr Crane’s closing submissions reiterated his evidence about the effect that the accident had on his mental, physical and dental health. However, Mr Crane’s evidence did not fit with the medical and dental records. It was (a) unsupported by any medical or dental records, and (b) also inconsistent with those records. In my view, Mr Crane’s evidence was unreliable when compared with the contemporaneous medical and dental records. Contemporaneous records of that nature are usually a safer repository of reliable fact. I have no hesitation in according them much greater weight than Mr Crane’s self-serving and uncorroborated evidence.
I accept the medical and dental evidence and find (on the balance of probabilities) that:
(1) the motor vehicle accident gave rise to only a two to three week aggravation in Mr Crane’s longstanding pre-existing symptomatic neck and back problems;
(2) Mr Crane’s longstanding psychiatric condition was not exacerbated or aggravated by the accident; and
(3) there was no evidence that Mr Crane’s dental problems are related to the accident.
Assessment – General Damages
It follows that the only injury which Mr Crane has proven that he suffered in the accident was a minor and temporary aggravation of his longstanding neck and back problems.
Given that Mr Crane did not complain at Redland Hospital of any lumbar problems, it is appropriate to assess general damages by reference to Item 89 of the Schedule to the Civil Liability Regulation 2014—namely, “minor cervical spine injury”. That refers to an injury, including a whiplash injury, with no ongoing symptoms other than symptoms that are merely a nuisance. The accompanying comment about the appropriate level of ISV provides that:
“An ISV at or near the bottom of the range will be appropriate if the injury will resolve without any ongoing symptoms within months after the injury was caused.”
The ISV range is 0 to 4. As the effect of the injury lasted no longer than three weeks, I regard an ISV of 2 as appropriate. That results in an assessment of general damages of $2,360.
As there was no evidence which established (on the balance of probabilities) that Mr Crane suffered any other injuries in the accident, no question of multiple injuries (and therefore of a higher assessment of general damages) arises.
Economic Losses
Mr Crane claimed a total of $170,000 for loss of income to date. He gave evidence that he had three jobs as at the date of the accident. He said that he made $1,200 gross per week from catching and selling crabs, another $600 to $800 nett per week from his renovation and construction work as a tradesman builder, and another $300 to $400 nett per week from making colloidal minerals. That would result in a nett weekly income of about $1,700 to $2,100.
However, Prof. Whiteford said (Ex 3 p 26) that Mr Crane told him on 23 January 2017 that he had not worked since 1995. Mr Crane gave evidence that he did not remember saying that to Prof. Whiteford—but it is quite unlikely in my view that it would have been noted in the records if Mr Crane had not said it. Mr Crane accepted that he had not lodged income tax returns since 2008.
Although Mr Crane was a longstanding recipient of a disability support pension, there was no evidence that he had ever informed Centrelink about the income that he said that he was earning from his three jobs. He gave some vague evidence that Centrelink had told him that he could work for nine months but not tell Centrelink about that unless the job was permanent. I regard that evidence as implausible.
I regard Mr Crane’s unsubstantiated claims about working three jobs and earning the money that he described as unsupported, on the balance of probabilities. Absent some evidence of payment (and there was none), I cannot accept them, on the balance of probabilities.
Mr Crane also claimed that he lost considerable income due to Allianz not providing him with the promised replacement vehicle. In cross-examination, he denied (T2: 3-4) that Allianz had written to him advising that his car had been written off and that its pre-accident monetary valuation had been paid out to the finance company which was owed more than that amount on the car. If that had been the case, no question of the provision of a replacement vehicle would have arisen. In any event, insofar as the alleged loss of income was not because of an injury but because Mr Crane did not have a vehicle, any such loss is not claimable against the compulsory third-party (CTP) insurer Allianz. That is because the policy pursuant to the Motor Accident Insurance Act 1994 applies only to losses caused by personal injury: see section 5(1).
Dr Dickinson’s view was that other than for the two or three weeks after the accident, Mr Crane could have resumed his usual employment. There was no evidence that Mr Crane lost any work in that two to three week period, or of what the value of any such work might have been.
Mr Crane lodged a workers’ compensation claim in October 2015 while he was working as an employed bricklayer. Thus, there was evidence that he had done some paid work after the accident. However, he did not give any evidence about that or of how much money he may have earned. In the circumstances, it would not be appropriate for the Court to speculate.
It follows that there is no proven basis for any award for past or future economic loss damages.
Costs incurred
Finally, Mr Crane claimed $5,000 for costs incurred. He gave evidence that that was for (a) the costs of catching taxis “to get somewhere”, (b) “seeing doctors every month for the last seven years”, and (c) his time away from jobsites. Those general assertions were not particularised or supported by any tendered documentation.
Accordingly, the claim for $5,000 as “costs incurred” must be rejected.
Other Losses
There was no evidence of any other losses.
Disposition
The only aspect of this claim for damages which has been made out is the assessment of general damages of $2,360. All other aspects of Mr Crane’s claim were not established on the balance of probabilities.
Accordingly, there will be judgment for the plaintiff against the second defendant for $2,360.
Costs
I will hear the parties as to costs.
[After submissions, the Court made the following orders]
1. There be Judgment for the Plaintiff against the Second Defendant for $2360.00.
2. The Plaintiff pay the Second Defendant’s costs of the proceeding assessed on the standard basis from 19 December 2014, fixed at $36,952.95.
3. The Second Defendant be entitled to set off the amount of the Judgment referred to in paragraph 1 hereof against the liability of the Plaintiff to it for costs.
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