Dale v Frugalis Pty Ltd

[1999] QDC 206

IN THE DISTRICT COURT
HELD AT MARYBOROUGH
QUEENSLAND

[Dale v Frugalis Pty Ltd]

[Before McGill DCJ]

Plaint No 64 of 1998
  (Brisbane No 1334 of 1999)

BETWEEN:

GRAHAM JOHN DALE
  Plaintiff

AND

FRUGALIS PTY LTD
  Defendant

JUDGMENT

Judgment delivered:  9 July 1999

Catchwords:  DAMAGES - personal injury - shoulder - exaggeration of symptoms and disability

Counsel for the plaintiff:            M.P. Amerena

Counsel for the defendant:                 G.F. Crow

Solicitors for the plaintiff:  Carswell & Co

Solicitors for the defendant:                  Bressington & Partners

Dates of Hearing:  22, 23, 25, 26 February, 4 March, 9 April 1999

IN THE DISTRICT COURT
HELD AT MARYBOROUGH
QUEENSLAND

Plaint No 64 of 1998
  (Brisbane No 1334 of 1999)

BETWEEN:

GRAHAM JOHN DALE
  Plaintiff

AND

FRUGALIS PTY LTD
  Defendant

REASONS FOR JUDGMENT -McGILL D.C.J.

Delivered the 9th day of July 1999

By this action, the plaintiff claims damages for injuries he alleges were suffered by him in the course of his employment with the defendant on two occasions, on 4 October 1995 and on 6 November 1995.  Liability has been admitted (p.8) but quantum remains in issue.  In that context there was a substantial attack on the credibility of the plaintiff. 

The defendant operated a meatworks under the name of Morex: p.11.  At the relevant time the plaintiff’s job involved putting a shackle around a hind leg of a beast which had just been stunned, so that it could be hoisted into the air: p.17.  On this occasion the plaintiff put the shackle around the leg and then was holding it in his right arm when he reached back over his left shoulder to get the hoist, when the beast kicked so as to pull on the arm that was holding the chain and he felt a sharp pain (p.18) as though he had pulled a muscle in his shoulder, or as though someone had put a knife in his shoulder and twisted it: p.19.  He said he was not kicked by the beast, but he was initially not clear about whether the chain was pulled out of his hand: p.18. The plaintiff thought that he had told Dr. Corbett whom he saw in September 1996 that the effect of the kick was to rip the shackle out of his right hand: p.39.  Under cross-examination, he said that it was pulled out of his hand: p.40.   A pain was felt deep inside the shoulder, a little way in from the end and a little below the top: p.19.  He said he worked for the rest of the day, notwithstanding the pain, although he did report the injury at smoko: p.20.
The pain has always been there ever since, and it has generally become worse: p.20.  He said that as long as he does not use the arm he just has a dull ache, but as soon as he uses it it starts to throb and feels like it is swelling up: p.20.  The plaintiff persisted in his work, notwithstanding the pain, and on 6 November 1995 his job involved carrying a number of hooks.  On one occasion when the plaintiff went to pick up five of the hooks he felt further pain, the same as on the previous occasion: p.21.  He dropped the hooks, and reported the accident straight away: p.21.  As it happened, the meatworks closed a couple of days later (p.22) and has not re-opened: p.40. The plaintiff went to see his general practitioner, Dr. Forrest, and received some treatment.  There was no evidence about this from Dr. Forrest.  The plaintiff received physiotherapy and was referred (Exhibit 23) to an orthopaedic surgeon, Dr. Khursandi, who gave him injections, and later completed a two week course at the South Brisbane Rehabilitation Centre: p.23. 

The plaintiff said that he tried not to aggravate his arm, and tried to do things the best he could without aggravating it: p.23.  Most things he could still do but they aggravated his shoulder and prevented him from sleeping at night.  The pain is there all the time, and basically anything he does aggravates the shoulder and produces more pain: p.26.

The plaintiff had a long history of involvement with various sports, particularly soccer, which started at school and continued up to the time of the accident: p.16.  At the time of the accident he was very fit: p.22.  Since the accident he has stopped playing sport, even soccer (p.23), his only involvement now being the coaching of one under age soccer team: p.30.  He was also keen on fishing and boating prior to the accident, but since then gets someone else to go with him and do most of the work: p.29.  He said he had not fished for some six to eight months prior to the trial, which would cover a period back to August 1998. 

The rehabilitation course was in March 1996 (Exhibit 24 - he thought it was April: p.43) and after he completed this course he said that things went down for him and he became much more withdrawn.  His consumption of alcohol increased, until in late 1998 he saw Dr. Forrest who prescribed medication (p.13) and he stopped drinking for two months: p.32.  The plaintiff also admitted to a progressive increase in the consumption of marijuana (p.31) and said that in the last three months he had become addicted to it: p.32.  Under cross-examination he said that he had acknowledged to himself that he was addicted since about September 1998: p.74. 

Inconsistencies
There were some inconsistencies in the plaintiff’s evidence: he said at p. 52 that since the accident he had always cast a fishing rod with his left hand, but after seeing video tape of his casting with his right hand (Exhibit 13) he conceded at p.63 that he had used his right hand to cast on a number of occasions since the accident.  He said at p.56 that he could not lift a 10 kilogram bag of ice with his right hand alone, but at p.68 agreed that he probably could lift it.  There was some inconsistency between what he told Mr. Johnston in May 1998 and what he told Ms. Britton in June 1998 as to the effect on his social life of his injury, a difference that he, I thought, did not explain satisfactorily under cross-examination: p.44.  There was some difference between the presentation of the plaintiff during the trial, and that shown on a number of surveillance videos which were tendered.  During the trial the plaintiff appeared to try to avoid moving his right arm any more than he had to, even when walking, and at one stage I had the opportunity of seeing him in Chambers with his shirt off, when he was standing with his right shoulder noticeably lower than his left shoulder.  His appearance was essentially the same as in Exhibit 8, the photographs taken shortly before trial, so far as I could tell.  In the video tapes, however, there was no difference in the shoulder positions which was obvious to me. 

The defendant put into evidence a number of surveillance videos of the plaintiff,  Exhibit 12, which showed him looking at his father’s car on 4 February 1997 (p.57) and doing some work  on it, and subsequently assisting to put a large piece of furniture into the back of his vehicle (p.60), talking to some people next to a blue car on 6 February 1997, and briefly with a boat on 28 May 1997: p.61.  Exhibit 13 showed him on Fraser Island on 30 May 1997: p.62.  Exhibit 14 showed him on Fraser Island at Mr. Litzow’s camp (p.65) helping to bring a boat in to shore on 29 September 1997 at about 4.30 p.m., and subsequently cleaning the boat: p.66-67.  Exhibit 15 showed the plaintiff taking part in the Fraser Island fishing competition on 25 May 1998 (p.69) and on the following two days: p.70.  Throughout these videos the plaintiff was usually not wearing a shirt, and he said that he does not wear a shirt much at all: p.71.

The plaintiff was aware prior to the trial that there was video tape of him (pp.2, 60) but said that he was not aware at the time of having been video-taped (p.59) and therefore would not have been aware of the contents of the video evidence before it was shown in cross-examination.  The plaintiff’s evidence, both in evidence in chief and in cross-examination was however generally to the effect that he could do pretty well anything with his right arm, but it aggravated his pain so he suffered more pain afterwards as a consequence: see for example, p.36 and p.66.  The plaintiff said that even something as simple as swinging his arms when he walked would aggravate the pain in his shoulder (p.49) but he appears in the video tape to swing his arms fairly normally, certainly much more than he did in court, and there is one occasion in Exhibit 14 when he seems to be swinging his arms particularly vigorously.  Apart from the question of lifting a bag of ice and casting, however, there was nothing that the plaintiff said that he could not or did not do with his right arm that he was subsequently shown to be doing. 

Rather more striking in this case were the inconsistencies between the various medical experts who gave evidence.  The plaintiff had not been physically examined by a doctor for a couple of years prior to the trial, so there was no medical evidence as to his current condition.  What was of some significance here was the question of whether there was some muscle wasting in connection with the shoulder, something which would stand as an objective indication of something wrong with the shoulder, or at least reduced usage which could itself tend to confirm that using the shoulder was painful for the plaintiff.  The doctors gave evidence by telephone, but I had a copy of Exhibit 8 faxed to the doctors, and their comments on it covered a surprisingly wide range.  For example, according to Dr. Watson, this showed evident wasting of the plaintiff’s right shoulder muscles: p.216.  On the other hand, according to Dr. Blue, the plaintiff’s right shoulder was normal, but the left shoulder was being held at an unnaturally high position by contracture of the trapezius muscle.  If there was no spasm in the left trapezius, the contrast between the shoulders was contrived.  He would have expected to see that degree of asymmetry in the videos, and he did not: p.180.  There was also considerable inconsistency as to what of significance could be seen in the videos.

Medical Evidence
The plaintiff has seen a number of doctors over the years and I was provided with a range of medical reports.  Dr. Forrest referred the plaintiff to Dr. Khursandi, orthopaedic surgeon, who examined him on 19 December 1995: Exhibit 23.  He had by this time already had some physiotherapy.  The plaintiff was complaining of pain in the nape of the neck with some radiation to the right side of the neck.  On examination the cervical spine showed no deformity and a fair range of movement, and the right shoulder was similar.  There were no neurological symptoms or deficits in the arms.  Dr. Khursandi thought that there was spasm of the right trapezius secondary to the injury at work which he treated with an injection and advised the plaintiff to continue with physiotherapy.  When seen again on 9 January 1996, the plaintiff said he had had some relief of the pain, and at that stage there was no restriction of movement to the neck or shoulder.  Dr. Khursandi thought that the plaintiff would recover in a few weeks from what he diagnosed as sprain of the trapezius.  Dr. Khursandi had not seen the plaintiff since January 1996: p.277.  He thought that the photographs in Exhibit 8 of which he had seen a faxed copy showed simply a postural change (p.278) and that there was no indication of abnormality in the right arm in the videos which he had seen: p.277. 

The plaintiff was examined by Dr. Blue, an orthopaedic surgeon, on 24 January 1996 for the Workers’ Compensation Board: Exhibit 20.  The history given to Dr. Blue is consistent with the plaintiff’s evidence in court, except that Dr. Blue has recorded that the plaintiff ceased work due to shoulder pain; my impression of the plaintiff’s evidence was that he consulted a doctor only after the meatworks had closed (and see the version in Exhibit 2, p.5), but this did occur just after his second injury.  The plaintiff complained of constant pain in the right shoulder, although Dr. Blue found a full range of movements in the shoulder and normal power of abduction.  The plaintiff had fractured his right clavicle 15 years earlier, which had united with some deformity as shown in x-rays, which also interfered in a minor way with the right acromio-clavicular joint.  Ultra-sound of the right shoulder was normal.  Dr. Blue thought that the plaintiff may have suffered some minor ligamentus strain, but that he had recovered his ability to work.

Dr. Blue had not seen the plaintiff since, but he had reviewed the video evidence and noted in a further report, Exhibit 21 (24 February 1999) a number of movements of some orthopaedic significance.  In his opinion the video showed no continuing disability in the right shoulder, which he thought confirmed his opinion, and revealed no attempt to protect the right shoulder: p.178.   Dr. Blue thought that if a person’s shoulder was painful the trapezius muscle would go into spasm to protect it which would cause the shoulder to be elevated rather than dropped: p.179.  Dr. Blue conceded that if there was some loss of use of the shoulder because of pain avoidance, this could in time lead to wasting of the muscles: p.168.  This would lead to difficulty in raising the arm above shoulder height, but would not lead to drooping in the shoulder as such.  If the shoulder were drooping, it would indicate a stoic indifference to the pain, which would not be typical: p.187. 

The discharge summary from the South Brisbane Rehabilitation Centre (Exhibit 24) dated 26 March 1996 refers to complaints of increased pain when engaging in lifting and other tasks.  There was a full range of shoulder movement with increased pain with use.  The physiotherapist thought that there was some inflammation in the anterior shoulder capsule. 

The plaintiff was seen on 9 May 1996 by Dr. MacFarlane, an orthopaedic surgeon of Rockhampton, for the purposes of a report to the plaintiff’s solicitor: Exhibit 19.  The recorded history is consistent with the plaintiff’s evidence.  There was a complaint of ache in the right shoulder going down the arm with some cramps at times, increased pain after gardening or mowing the lawn. He took the occasional panadol.  On examination there was no loss of power or movement in the right shoulder, the neck had a full range of pain free movements.  Movements in the right shoulder were said to be pain free, but there was some tenderness in the right trapezius muscle, and slight pain on traction of the right arm.  Dr. MacFarlane could not find any reason for any continuing pain, or any objective clinical signs, and he thought that the plaintiff was fit to resume work.  He thought there might have been a mild traction injury to the nerves of the right brachial plexus, but thought the preferable diagnosis was strain of the right trapezius.  He did not detect any wasting of the right shoulder muscle: p.165.  He had seen the videos, and did not think that they showed anything other than normal pain free movement: p.166.  He did not see any drooping of the shoulders in the videos.  He acknowledged that muscle wasting through disuse atrophy would take some time to develop, and would not have developed by the time of his examination: p.167.  He acknowledged that the accident described by the plaintiff could cause a traction injury in the right brachial plexus: p.171.  If there was a traction injury to the nerves, this could interfere with the nerves supply to the muscles of the shoulder which would result in drooping of the shoulder and subsequent wasting of the muscles: p.173. 
When Dr. MacFarlane was faxed a copy of Exhibit 8, he thought that there appeared to be muscle wasting shown: p.173.  Such a condition would develop progressively over time: p.174.  However, a person could just assume a position with the right shoulder lower than the left as shown in the photographs: p.174.  If there was wasting of the shoulder muscles, of course that could not be feigned: p.174.  Dr. MacFarlane would expect it to take a year or more for muscle wasting sufficient to lead to a droop in the shoulder to develop: p.175.  Any wasting would be persistent, as would associated drooping: p.176. 

On 29 June 1996 the plaintiff was seen by Helen Coles, an occupational therapist, for the purposes of a report: Exhibit 3.  This report refers to the rehabilitation procedure at South Brisbane, and includes a reference that: “The physiotherapist taped his shoulder so that he knew what it felt like to be symmetrical”: p.2. This is not referred to in the discharge summary, Exhibit 24.  The plaintiff complained of constant pain since the injury, although it was worse on some days than others, and was aggravated by activity.  His complaints were essentially the same as in  the course of his evidence.  The report records his having said that he casted with his left hand and did not fish much, and had occasionally drunk more than he did before the accident.  Various assessments were done, including a measure of grip strength which produced 30 kilograms for the right hand and 43 for the left hand.  By way of contrast, at the South Brisbane Rehabilitation Centre in March 1996, left grip was 52 kilograms and right grip 55 kilograms. This was the average of three tests: p.271.  That is a substantial change in just over three months.  Ms. Coles commented at p.9 that the right shoulder was notably dropped.  There was some restriction found on all right shoulder movements.  She thought there was obvious wasting and asymmetry of the upper right torso.  She was of the opinion that he was not able to work as a slaughterman and would be disadvantaged in the competitive labour market because of his physical restrictions and history of injury so it would be difficult obtaining any employment.  He was not totally unemployable but his range of occupational opportunity was very narrow.  He required some care and assistance for a few hours per week. 
Ms. Coles had seen the video tapes, and said that his performance on them was slightly different from what was described to her, in relation to his ability to lift something: p.144.  (By way of contrast, Dr. Corbett, after seeing the videos, accepted there was quite a deal of exaggeration in the version given to Ms. Coles: p.262).  She thought that in the video the right shoulder was drooped whenever one could see him clearly: p.145. In the video it seemed slightly less drooped, if at all, than in the photographs: p.157. She thought it was very hard to tell from the video whether there was any wasting, but thought that when there was clear view there seemed to be wasting present: p.146.  She did concede the video showed him raising a heavier load than he had admitted to her: p.147.  When she tested his lifting ability he was only able to lift and transfer negligible loads, that is a couple of kilograms: p.147.  She also thought that there were minor but observable reductions in the range of movement in the right shoulder visible in the video: p.153.  She gave the opinion that the plaintiff could work as a taxi driver with power steering or a bus driver if the bus had automatic transmission and power steering (p.154), or could do some work as a shop assistant: p.155.

The plaintiff saw Dr. Corbett, a neurologist, on 13 and 17 September 1996 for the purposes of a report: Exhibit 2.  Dr. Corbett took a detailed history, and recorded complaints from the plaintiff  which were similar to his evidence.  When describing the examination, Dr. Corbett said the plaintiff held his right shoulder girdle in an abnormal position with the result that his right shoulder appeared to be drooped compared with his left: Exhibit 2, p.9. The position described at p.9 of the report was that shown in the photographs, a copy of Exhibit 8: p.266. Dr. Corbett said that this type of posture represents a deliberate holding up of the left shoulder (p.266) which seems to be in substance agreement with the comment made by Dr. Blue on the photographs, Exhibit 8.  He went on to say that after arranging the stance in the shoulder girdle so the position was symmetrical, he thought that on careful examination that there was a degree of wasting of a number of muscles at the right shoulder girdle, including the right trapezius, supra-scapular, infra-scapular and deltoid muscles.  He did not however detect localised muscle weakness, or any associated weakness beyond what he would expect on a protective basis.  There was no abnormality in the right arm.  He had a full range of movements in the neck and right shoulder joint.  After nerve conductivity studies undertaken by Dr. Cameron of all the relevant nerves were normal, Dr. Corbett concluded that any wasting was not the result of denervation so he concluded that it was attributable to disuse atrophy, associated with reduction in use of the right shoulder girdle.  The obvious explanation for this prolonged disuse was avoidance of movement in an attempt to reduce pain.

Dr. Corbett concluded that the plaintiff had suffered a musculo-ligamentus strain without causing  specific injury to the nerves, which he thought had produced a considerable amount of pain. Dr. Corbett said that he would not describe the plaintiff’s pain as neuropathic pain.  He preferred the term myopathic for the pain which was pain originating from muscles, ligaments and scar tissue: p.256  This condition was one which would produce more pain as the result of activity, particularly movement against resistance: p.265. Dr. Corbett did not at the time have the impression that the plaintiff was fabricating his symptoms.  Dr. Corbett’s prognosis was then that there was no neurological impediment to a full recovery, and that there were techniques which were often helpful which could improve the usefulness of the right arm. 

Dr. Corbett had also not examined the patient since 1996.  He had been provided with proper copies of the photographs in Exhibit 8, but said that it was not possible to tell from those photographs whether or not wasting was present, although the appearance was consistent with wasting: p.253.  He said that to check for wasting one feels the muscle put under tension and compares left and right sides in an equivalent situation. Dr. Corbett thought that there had been a substantial improvement in what was shown in the videos compared with when he had seen the plaintiff in September 1996: p.263.  Dr. Corbett did not see any sign of an injury of the right shoulder on the video: p.264.  Notwithstanding the element of exaggeration present, Dr. Corbett thought that the underlying condition was now likely to remain fairly similar, given the length of time which had past: p.264. Dr. Corbett said that it was not uncommon for people who were involved in litigation to try to cast their story in the most favourable way for their case: p.255. 
In view of the persistence of the symptoms, Dr. Corbett was, at the trial, less optimistic about the plaintiff’s prospects than he was at the time of his report, Exhibit 2: p.257.  This was notwithstanding acceptance there was a probability of exaggeration of the plaintiff’s evidence.  He thought the plaintiff would be able to carry out gainful employment of a light nature but not do heavy labouring work, such as the work he had been doing in the meatworks: p.257.  He thought the plaintiff could drive a taxi or a bus subject to any difficulties involved in repeated handling of luggage, and could work as a sales assistant: p.257.  He thought there was no doubt that the plaintiff had the capacity to work and to use his right arm: p.262. 

The plaintiff was referred to Professor Cramond, an anaesthetist who specialises in pain management, for the purposes of a report: Exhibit 4. Professor Cramond saw him on 24 March 1997.  The complaint to Professor Cramond was of deep constant severe pain in the right shoulder region made worse by physical activity.  He said to her that even swinging his arm when walking caused an increase in pain.  The shoulder felt as though it was on fire, and the muscles in the shoulder were now weak.  I think it is of some significance that the nature of the complaints of pain to Professor Cramond were somewhat different from the description of the condition given to the various doctors; indeed, there has been a considerable change since the description given initially to Dr. Khursandi. Professor Cramond also thought there was wasting of the lower fibres of the right trapezius, deltoid, infra and supra scapula muscles.  There was a full range of head, neck and shoulder movements, and no tenderness.  Professor Cramond thought that the plaintiff had suffered a traction injury involving the right brachial plexus and right shoulder, particularly because of the position he was standing in at the time of the original injury when the beast kicked.  She thought he was suffering neuropathic pain which was now unlikely to improve since it had been left untreated for so long. She said that the nerve conductivity studies had no bearing on the complaint of neuropathic pain: p.135.

Professor Cramond had been provided with a copy of the video tapes, and her evidence about them was surprising.  She said that there was very obvious drooping of the right shoulder which was apparent in every view of the plaintiff: p.113.  She said that he let his right arm hang and did not swing it normally like a person with a normal shoulder would, at least ordinarily.  She thought on a number of occasions he was using his left hand more than she would have expected for a right handed person, particularly using his left hand to steer with when he was reversing a vehicle, which she said was not the usual method for a right handed person: p.131.  As to that, I would have thought that it was a question of which shoulder one was looking over, which was likely to be a matter of habit rather than anything else.  She said he always carried with his left hand, and when he was doing things, he mostly used both hands: p.132.  On two occasions he opened a car door with his left hand which she thought was unusual for a right handed person.  Professor Cramond was of the view that the plaintiff had neuropathic pain which was an unpleasant disability for which there was no cure, and the video simply showed that he was functioning within the limits of an unpleasant disability: p.133.   As far as Professor Cramond was concerned, she saw absolutely no evidence whatsoever that the plaintiff had exaggerated his symptoms: p.138. 

I have to say that I was not impressed by Professor Cramond as an expert witness.  I had the firm impression that she was behaving as a partisan in the plaintiff’s cause, out to give evidence which was as favourable to the plaintiff as possible.  I think it is of some significance that her assessment of the type of pain the plaintiff was suffering differs from that of Dr. Corbett, whose evidence I thought was a good deal more objective.  This was also apparent in the way in which she answered questions, at times with some vigour.  She seemed to be determined not to let the appearance of the plaintiff in the video tapes get in the way of her views as to his condition and prognosis. Her description of the appearance of the plaintiff in the videos is not at all consistent with what I see in them.

On 4 December 1997 the plaintiff was seen by Dr. Watson, a consultant in rehabilitation medicine, for the purposes of a report: Exhibit 1.  The complaints to Dr. Watson were similar to those to Professor Cramond, and Dr. Watson said there was slight wasting of the right trapezius, deltoid and spinati, but the sterno-mastoid was intact.  Dr. Watson thought the condition was consistent with a traction injury to the upper cord of the brachial plexus which was also consistent with the mechanism of injury described in the evidence.  He described the condition as neuropathic pain which would be impossible to treat and difficult even to manage.  Dr. Watson was also unaware of any hyperbole or wilful exaggeration. 

Dr. Watson had seen the videos; his comment was that the plaintiff was functioning without restriction of the use of the right arm in the circumstances shown, but he did not think this was inconsistent with the understanding he had of the position, and they did not cause him to change the opinions expressed in his reports: p.205.  He did, however, agree that the plaintiff in the video was able to walk without consistent reduction in arm movements (p.210) and that the videos showed a significant degree of over-presentation of the impact of the pain on his life: p.212.  The plaintiff was able to carry out more duties than he had imagined from the description he gave of the degree of handicap: p.214.  Dr. Watson did not detect any drooping of the right shoulder in the video, although he said that a degree of droop was not a major feature, which suggests that he is speaking of rather less drooping than is shown in Exhibit 8: p.216.  He did not detect any wasting but was not looking for it, because it would not be able to be detected unless gross: p.216.  He thought that Exhibit 8 showed probably a little more of a droop than when he had seen the plaintiff: p.216.  He said that on clinical examination it was not a gross finding: p.217.  He did think however that there was a genuine pain problem present, although the symptoms were exaggerated: p.219.  Based on what he saw in the videos, he thought that the plaintiff would certainly be employable in selected areas (p.215) although he would not be able to do a full day’s heavy physical work, and it might be difficult to find light work with which he could cope: p.219.  

On 6 May 1998, the plaintiff was assessed by a psychologist, Mr. Johnston, for the purposes of a report to his solicitors: Exhibit 5.  Mr. Johnston noted a history which included the proposition that the severity of the pain was unchanged since he stopped work (p.3) and that the plaintiff often rubbed his right shoulder and the right side of his neck, and on occasions stretched, moaned and grimaced during the interview: pp.8-9.  A reading test was administered which revealed a reading age of 12 years 1 month, a little below the adult level of 12 years 6 months: p.9.  This meant that he was not much different from a typical adult reader: p.236.  Mr. Johnston thought at the time that the plaintiff may have been mildly affected by marijuana, which could be an explanation for this result: p.237.  Mr. Johnston thought the plaintiff was suffering from a pain disorder associated with a general medical condition, on the assumption that his complaints of pain were medically justifiable.  If that were not the case he would be better diagnosed as having a somatoform pain disorder.  Either would have arisen as a result of the accident at work.  There was some prospect of improvement following the conclusion of litigation, and subject to a successful reduction in alcohol and marijuana usage.  At the time of the examination the plaintiff reported quite heavy marijuana use: p.8.  Mr. Johnston, when giving evidence, said that if there was some degree of pain but overstatement of symptoms, whether deliberate or inadvertent, that would be appropriately diagnosed as a somatoform pain disorder: p.227.  No such behaviour showed up in the course of the videos. 

The plaintiff was also seen Ms. Britton, a psychologist, for the purposes of a report dated 14 August 1998: Exhibit 6.  She thought the plaintiff had a pain disorder. Her impression of the plaintiff was that he was basically honest, and assuming that this was correct and that there was no sufficient organic basis for the reported pain, then it was appropriate to consider a somatoform disorder: p.116.  At one stage in the course of the testing the plaintiff was seen holding his shoulder and complaining of pain: p.9.  On the other hand, there was nothing similar during 1½ hours of interview: p.122.  Ms. Britton conceded that there may be factors operating against recovery, although she said that that might be at an unconscious level: p.125. 

On 27 October 1998, the plaintiff was seen by a psychiatrist, Dr. Lawrence, for the purposes of a report to the defendant’s solicitors: Exhibit 22. Dr. Lawrence received an account of a somewhat lower degree of marijuana intake, but did express the opinion that a major effect of his intake would be to decrease motivation to look for work, make changes or accept responsibilities for himself and his future life direction: p.9.  Dr. Lawrence thought that he did not have a true pain disorder as defined in the standard diagnostic criteria, and that his failure to have a remunerative occupation was strongly influenced by his attitude to the litigation and the cannabis dependence, which  latter was not the result of his injury.

Other Witnesses
The plaintiff’s cousin, Mr. Nugent, was called and said that he had been living in the same house as the plaintiff during the period 1995 to 1997: p.93.  After the accident, the plaintiff complained about pain, and the domestic tasks were re-arranged so that the plaintiff was doing the cooking and he was doing the cleaning.  After the accident various recreational activities were reduced,  and the plaintiff did a lot less in the way of physical activity: p.95. 

Ms. Skinner said that she had known the plaintiff since 1994 and a relationship developed in 1995: p.103.  Prior to the accident the plaintiff was a very outgoing, physically active and social person, but he subsequently became very frustrated and his activities diminished substantially: p.105.  Sexual activity diminished.  Her evidence was to the effect that the plaintiff’s appearance was as in Exhibit 8: p.107. 

The plaintiff’s father gave evidence to confirm the plaintiff’s marijuana consumption (p.86) and to confirm a change of personality, and level of activity after the accident: p.87.  He said that since the accident the plaintiff favours his left arm, but he has seen him use the right arm: p.90.

There was also a statement from a Mr. Cutlack, admitted under s.92: Exhibit 17.  He was the officer of the Department of Primary Industries responsible for employing the plaintiff as a temporary worker in Tuan Forest in 1994 and 1995 spraying weeds.  He also gave the plaintiff work on 3 and 4 June 1996, but was subsequently told by the plaintiff that he was unable to continue to work because of the injury.  That is consistent with the plaintiff’s evidence.

Analysis
I have looked again with some care at the various video tapes of the plaintiff.  In Exhibit 12 it seems to me that there is no shoulder droop visible, and there are a number of occasions where one can obtain a reasonable view of the plaintiff’s upper body where I would expect to see it if it were present.  On one occasion the plaintiff is seen carrying a shoulder bag over his left shoulder, and on that occasion the left shoulder does seem to be held up particularly high, so that there is a difference in height between the left and right shoulders.  This is quite obvious on the video, and I think it supports the conclusion that if the plaintiff had, during the periods when he was filmed been ordinarily holding his shoulder as he was in Exhibit 8, that would have been readily visible.  In Exhibit 12 he was seen to pick things up with his right hand, he applied pressure to pliers with his right hand while holding something in his left hand, he opened the door to a four wheel drive with his right hand, and generally seemed to be using his right hand and arm in a normal fashion. 

In Exhibit 13, there was no obvious drooping, and he appeared to be using his right hand normally, including lifting it at times when I felt that could have been avoided had he been trying to protect it.  He was seen to cast a fishing rod with his right hand, and to wind it in using his right hand.  He was seen to be swinging his right arm normally, although I did notice at times that if he was carrying something in one or other hand, this would, to some extent, interfere with the swinging of his arms, and during part of this video he was apparently carrying something in his right hand and that did have some effect on the swinging of his arm.  In Exhibit 14 there was no drooping obvious to me, and he seemed to be swinging his right arm normally.  At one point he raised his right arm so as to shield his eyes in circumstances where, had he had difficulty with that action, he could easily have used his left hand.  He was holding a hose to hose off gear on a boat with his right hand, and on one occasion he used his right hand to pull on the hose when he could have used his left hand.  He lifted two bags of ice out of the boat.  In each case it seemed to me he started the lift just with his right arm, although he then used his left hand as well, and when he was lowering the bag to hand it to someone it was, for a time, supported just by his right arm.  It was obviously not the action of someone who was trying to use his left rather than his right hand. 

In Exhibit 15 he was seen to be raising his right arm when that could have been avoided, he opened a vehicle door with his right hand, there was no sign of drooping and he was swinging his right arm normally.  The only indication of something which might have involved guarding of the right arm is seen when he was bending over looking for something in the sand, when he was scratching around with his left hand while holding his right arm up against his body.  This was seen on three occasions, but it also seemed that when he found something he used his right hand to grab it and pick it up.  There were two or three occasions in Exhibit 15 when the plaintiff opened the door of a four wheel drive with his left hand, but that was opening the left hand door which he had approached from the front of the vehicle, when it was natural to use his left hand. 
I did not see any occasion on the videos when he was using his left hand other than in a natural way, or where he appeared to be making an effort to use his left rather than his right hand. There were a couple of occasions when he was seen to be pushing on something, once on the bumper bar and once when he was pushing on something in the back of the boat, when he pressed with both hands, but the right hand was the one placed on what he was pushing which was more in line with his right shoulder, and the left hand was just pressing on the back of the right hand. 

Certainly the videos do not show him doing heavy labouring work or repetitive work with his right arm, but it seems to me that they show an extended use of the right arm which is not consistent with his evidence to me, and virtually no indication of any guarding of the right arm, or behaviour consistent with a right arm which is in severe pain or which will suffer severe pain if it is used.  There were numerous occasions when he was doing something with his right arm when he could have been doing it just as easily with his left, and it seemed to me that his behaviour on the video was generally quite inconsistent with his trying to protect his right arm.  The video tapes covered a number of different occasions and frequently a range of times on a particular day. It was accepted during addresses that the videos had not been selectively edited.  I acknowledge that most of them were shot while the plaintiff was on Fraser Island engaging in an activity which he enjoys, and where he may have been consuming alcohol, and under these circumstances he may have been relatively indifferent to such pain as he was suffering, but my overall impression from the videos is that he is not a person who was giving any indication of suffering significant pain as a result of normal use of the right hand or arm. 

The difference in the evidence of the doctors in relation to the video tapes was largely not differences which are dependent upon an ability to make an expert assessment.  The question of whether or not the plaintiff’s shoulder appears to be drooping is not something which requires expertise.  It seemed to me that the different assessments of the video tapes were revealing more as to the reliability of the medical evidence, to an extent which surprised me.  Professor Cramond’s assessment of the video tapes is frankly quite inconsistent with my own, and that is an important factor in my rejecting her evidence.  I also thought the reaction of Ms. Coles to the video tapes cast doubt on the reliability of her evidence; she seemed to be most reluctant to accept what she had been told by the plaintiff was not reliable, or was inconsistent with what appeared in the video tapes, as it plainly is.  I prefer the evidence of the assessment of the video tapes of Dr. Blue, Dr. Corbett, Dr. Khursandi and Dr. MacFarlane. 

The other significant factor is what can be said about the plaintiff’s muscle wasting by looking at Exhibit 8.  As to this, I accept the evidence of Dr. Corbett that it is not possible to tell by looking at Exhibit 8 (and therefore not possible to tell by looking at faxed photocopies of Exhibit 8) whether or not there was any wasting of the plaintiff’s muscles at the time the photographs were taken (as claimed by Dr. Watson and Dr. MacFarlane).  I think that in substance he, Dr. Blue and Dr. Khursandi agree that what the photographs show is a person who is holding one shoulder higher than the other.  In circumstances where that did not appear anywhere on the video tapes I am satisfied that that was contrived, for the purpose of deliberate exaggeration of symptoms to the various examining doctors, and at the trial.  I accept Dr. Corbett’s evidence that it is necessary in order to detect wasting properly to examine the plaintiff with the skeleton in a symmetrical position and actually to feel the muscles.  I do not accept that Dr. Watson can detect wasting of the muscles by looking at the faxed copies of the photographs, and the fact that he purported to do so I think reflects badly on the reliability and objectivity of him as an expert witness.  I also think that Ms. Coles’ assessment of the plaintiff in June 1996 suffering obvious wasting is unreliable, since it does not appear that this was basically anything other than looking at him.  It also seems strange that the plaintiff would develop obvious wasting in less than two months since he had been examined by Dr. MacFarlane ( on 9 May 1996) without any wasting of the right shoulder muscle being detected.  I think the effect of Dr. Corbett’s evidence is that in September 1996 there was a relatively small degree of wasting present.  Wasting would take time to develop, and would not come and go.  I accept that Dr. Corbett on examination found wasting, and find that in September 1996 there was wasting attributable to disuse atrophy in the plaintiff’s right shoulder muscles. In the circumstances I am not prepared to place any great reliance on the evidence of Professor Cramond or Ms. Coles, and will treat with considerable caution the evidence of Dr. Watson, and I have some doubts about the evidence of Dr. MacFarlane.

It is not clear whether Professor Cramond actually felt the plaintiff’s muscles, but I do not regard her evidence as reliable anyway.  Dr. Watson found wasting in December 1997 which he described as slight; I am wary about his evidence, but on the whole I think it more likely than not that there was slight wasting at that time.  He was the last doctor who was able to make a proper examination to determine whether or not wasting was present, and the only subsequent evidence of wasting is from people who are purported to detect wasting either in the video tapes or by looking at a copy of Exhibit 8.  I am not persuaded that it is possible for them to do so by either of these means, and I consider there is no reliable evidence of any wasting in the plaintiff’s shoulder muscles after December 1997. 
I think this is a point of some significance.  It is usual in personal injury litigation for up to date medical reports to be obtained from at least some doctors shortly before the trial.  This trial extended over a number of days, and it was known to the plaintiff and his legal advisers prior to the trial that the defendant was armed with video tape evidence.  It would have been very easy for a properly qualified medical practitioner (preferably one who had previously examined the plaintiff and found wasting) to examine the plaintiff’s right shoulder muscles and comment on whether or not there was wasting present at a time close to the time of the trial.  That was not done, and I think the absence of such evidence is of some significance.  In a context where the plaintiff was video taped engaging in activities which Dr. Corbett regarded as showing a substantial improvement compared with the condition when he had seen the plaintiff in September 1996, I think there is good reason to doubt that the wasting which was detected in 1996 and 1997 is continuing, and no reliable evidence of the presence of wasting at the time of the trial.  In all the circumstances, the plaintiff has not discharged the onus of proving that he is still, at the time of the trial, suffering from wasting of the muscles of the right shoulder. 

It does not necessarily follow that the plaintiff’s muscles are such as to enable him to engage in heavy work now.  He has not been doing heavy work for some years, and the position may simply be that the muscles on both shoulders have lost tone and bulk because of this.  There will be a disparity in the muscles if one arm is being used significantly more than the other.  The absence of a disparity would not necessarily mean of course that the plaintiff had no pain in the right arm, or that he could cope with heavy labouring work; it would just mean that such pain as he has is not sufficient to prevent him from using his right arm normally in accordance with his present life style.  That would seem to be what is shown in the video tapes.  Nevertheless, the fact that for a time the plaintiff was shown to have muscle wasting I think demonstrates that there must have been some cause for that, a proposition which is supported by the circumstance that the plaintiff with a reasonable work history has not in fact worked since this accidents, apart from two days, and the evidence of the other witnesses that there has been a change in his behaviour and personality. 

In the circumstances, I think the plaintiff did suffer some injury to the right shoulder which did produce pain which interfered with his ability to work and live a normal life, and left him somewhat frustrated, but I think the plaintiff has substantially exaggerated the seriousness and disabling effects of the pain, particularly in the more recent interviews with doctors and in the course of his evidence in court. That the plaintiff was exaggerating when examined is supported by the results of the testing of the grip strength which Ms. Coles obtained, which is quite inconsistent with the results obtained at the South Brisbane Rehabilitation Clinic, and with the examination by Dr. MacFarlane in May 1996 which showed that the grip was equal.  It was also inconsistent with the appearance in Exhibit 12 of the plaintiff using pliers to apply considerable force to something while holding them in his right hand.  If the plaintiff had substantially stronger grip in his left hand, he would have been holding the pliers in his left hand to do that job.  I think this shows that when being examined by Ms. Coles the plaintiff was exaggerating the extent of the disability in his right arm.  The same applies to her assessment of the load that he could carry with his right arm. 

The difficulty in this case is determining the extent to which the plaintiff is suffering genuine pain, and the extent to which that interferes with his ability to live and work normally.  As Dr. Corbett put it, this is the burning question: p.262.   In such a situation, there is guidance in the judgment of the Court of Appeal in Schmidt v. Alderson (Appeal 7264/97, 26.2.99) in the course of which Thomas JA said in circumstances where there had been similar findings:

“Those findings require the statements of level of disability, not only of the respondent himself, but also the medical witnesses to be viewed with considerable circumspection.”

I think that that circumspection should extend to the evidence of Dr. Corbett at the trial when he was rather less than optimistic about the plaintiff’s prospects of improvement in the future.  That evidence appeared to be based on the proposition that the plaintiff’s condition had not changed since he examined him, but he subsequently acknowledged that there had been a substantial improvement shown in the video tapes compared with what he had seen in September 1996.  That is scarcely consistent with a conclusion that the plaintiff is not going to get better because he has not got any better; rather it suggests that the plaintiff has, to some extent, recovered. I think the position may well be that the plaintiff has lost the prospect of further recovery as a result of the sort of treatment contemplated by Dr. Corbett in 1996, but the position is still not as gloomy as Dr. Corbett suggests.  Either the plaintiff has improved from the condition he was in in September 1996, or the plaintiff was exaggerating his symptoms to Dr. Corbett and was never as bad as Dr. Corbett thought he was.  In either case I think Dr. Corbett’s prognosis in oral evidence needs to be treated with some caution.  Although I was generally favourably impressed with Dr. Corbett, I do not think this part of his evidence should be accepted at face value.  Nevertheless, it may well be correct to say that such level of pain as the plaintiff really does have at the moment is probably going to continue indefinitely.  The difficulty with that is that it is not clear what the plaintiff’s underlying level of genuine pain is, and what allowance should be made for the possibility of some improvement in the future (Dr. Corbett did not say that it would certainly continue at the same level indefinitely).

In all the circumstances I am prepared to find that the plaintiff suffered an injury which left him with a condition which was painful and interfered with his ability to do heavy work using his right arm, and to some extent led to a less active physical life style, but does not prevent him from enjoying a reasonable albeit less strenuous life style, and would not prevent him from doing lighter work.  I accept the evidence that the plaintiff could work as a taxi driver or bus driver or shop assistant, or indeed any sort of work which does not involve heavy work with his right arm.  I do not accept that he has a significant literacy problem which would make it particularly difficult for him to pass the taxi driver test. 

I also do not accept the plaintiff has been making reasonable efforts to obtain employment within his capacity, at least in recent years.  I accept the evidence of Dr. Lawrence that the marijuana addiction is not caused by this injury, and that this would be productive of loss of motivation and would interfere with his prospects of rehabilitation.  I think that, particularly in recent years, he has been prevented from working more by his alcohol and marijuana consumption than by pain in the right shoulder. 

I am not persuaded that the plaintiff was suffering from any somatoform disorder; insofar as his complaints of pain are greater than would be justified by any physical cause, in my opinion that is attributable to deliberate exaggeration.  Nor do I think he is suffering from any other psychiatric disorder caused by this injury; as to this I prefer the evidence of Dr. Lawrence, which I think is justified even if the plaintiff does have some underlying pain, since I think what matters is whether there has been a significant exaggeration of the symptoms.  In any case, in circumstances where I accept that there was significant exaggeration in the accounts given to Mr. Johnston and Ms. Britton, the plaintiff has not discharged the onus of showing that the plaintiff was suffering psychiatric or psychological disorder as a consequence of this injury.  No doubt the condition was somewhat distressing and frustrating to the plaintiff, particularly because he was not able to be as physically active as he had been in the past, but that is as far as I am prepared to go on this evidence. 

Assessment
The plaintiff was born on 8 February 1966 and is therefore now 33: p.10.  He repeated Year 10 and left school at the age of 15: p.11.  I have already referred to the plaintiff’s various complaints, although I am not prepared to accept that his condition is as bad as he says.  I am satisfied however that he did suffer a certain amount of pain in the shoulder after each of these incidents, and that it continued for some time, becoming worse with activity, so that he was for a time at least limiting the use of his right arm leading to muscle wasting. As he has adjusted more to it, it has become less of a problem for him. I think the injury and the continuing pain interfered to some extent with the plaintiff’s lifestyle, although he has I think, in the light of the video evidence, in more recent years adjusted to this and is functioning well within the limits of his current lifestyle.  I think it likely however that he can and will be unable to do heavy work or repetitive work with his right arm.  I am assessing pain and suffering for the future on the assumption that the plaintiff will not do so; this will reflect also in damages for economic loss.  I also assess damages on the basis that the plaintiff has improved somewhat since the condition he was in in 1996, but he has not become pain free, and on the basis that there might or might not be further improvement in the future, that is, there is still some significant possibility that there will be further improvement.  If there is not, of course, he has to put up with some pain for a long time. There is really no reliable evidence of continuing pain, but I am satisfied that there was some pain in the past sufficient to cause wasting, and in view of that and the evidence of Dr. Corbett, I think it probable that there is some continuing pain which does not ordinarily trouble the plaintiff much, and that it would become worse with heavy use of the right arm.  In all the circumstances I will assess damages for pain and suffering and loss of amenities in the amount of $18,000, of which I apportion $10,000 to the past.  That sum will carry interest at 2% for 3 years 9 months.

Prior to the time of the accident, the plaintiff was in employment with the defendant, but he would have lost that employment anyway when the meat works closed permanently in late 1995.  Since then the plaintiff has made no attempts to obtain work (p.41), and only did two days work at the Tuan Forest in response to an offer from Mr. Cutlack: Exhibit 17.  In the light of my earlier findings I am not satisfied that the plaintiff has during the whole of the period prior to the trial made reasonable efforts to obtain employment.  It follows that the plaintiff cannot rely on any principle said to be laid down in Thomas v. O’Shea (1989) ATR 80-251: see Adsett v. Noosa Nursing Home Pty Ltd (Appeal 223/95, Court of Appeal, 6.12.96).  The question of whether the plaintiff could have obtained employment which was within his post-accident capacity is not one of mitigation of damages; the plaintiff must prove that such employment is beyond his capacity as part of the general burden of proving the extent of the damage suffered by reason of the injury: Medlin v. CIG (1995) 69 ALJR 118 at 129 per McHugh J.

The plaintiff would have been thrown on the labour market following the closure of the meatworks anyway, and there is evidence before me from Mr. Rutherford, the regional manager for CHR Employment Services (p.221) that there is difficulty in obtaining employment in the Maryborough region, even if a person can do heavy work, although it is more difficult if one cannot do heavy work: p.225.  It is likely that there would have been some period, possibly some significant period, during which the plaintiff would have been unemployed after the meatworks closed even if the accident had not happen, although the plaintiff probably would have obtained some employment, probably at a lower rate of remuneration. 

The plaintiff’s employment history seems to have been reasonably good, and in recent years he had worked mainly for the defendant.  Copies of income tax returns are Exhibit 10.  He began working for the defendant early in the 1991-92 financial year, and earned in that financial year about $25,000 gross from his employment; in the following year the return was about the same.  In 1993-94, he earned about $22,000 from the defendant, and there must have been a period when he was not so employed as he also received benefits of just under $1,300.  In 1994-95 he was working for the Department of Primary Industries for a time, from October 1994 until March 1995 (Exhibit 17) and earned gross just under $8,000 during that period.  That is about 20 weeks, suggesting a gross income of about $400 during that period, a lot less than he had been earning on the average from the defendant.  His gross earnings from wages or workers’ compensation during 1994-95 came to just over $21,000, a little less than the previous year.  Counsel for the plaintiff calculated past economic loss on the basis of a net loss of $331 per week, and I think that was realistic. 

If he had been in full time employment at that rate for the whole of the period since the accident, his past economic loss would have been approximately $64,500.  However, that figure has to be discounted to accommodate two matters; the first, the prospect that he would not have been in employment for the whole of that period anyway, and secondly, for the circumstance that he has not been making reasonable efforts, at least in recent years, to obtain such employment as remains within his capacity.  I accept that that it is going to be more difficult to obtain than the sort of employment that would have been available had he been able to undertake heavy work, and accept Mr. Rutherford’s evidence to that effect, but his evidence is not to the effect that such employment cannot be obtained and some further allowance should be made for this. 

It is not possible in the circumstances to calculate past economic loss to the extent that it is reasonable to found a global assessment on the figure to which I have referred.  Taking both of these discounting factors into account however, I think it appropriate to award past loss in the sum of $20,000.  With regard to interest, during this period the plaintiff received net workers’ compensation payments of $6,674 (Exhibit 11) and gross social security benefits to the end of June 1997 of just under $10,000:Exhibit 10.  There would presumably have been a further $8,000 odd of such benefits in each of the two years since then.  These are to be taken into account when assessing interest on past economic loss, as well as the net workers’ compensation payments, so in the circumstances I think it clear that no interest should be awarded for past economic loss. 
With regard to future economic loss, it is not possible to calculate this.  I accept that it is more difficult for the plaintiff to obtain a job than would otherwise have been the case because he cannot do heavy labouring work, and that in the light of the evidence of Mr. Rutherford this means that he may well face significant difficulties in obtaining any employment.  But it is clear from the whole of the evidence that he is not unemployable, and I am not persuaded that the plaintiff has proved that he is unable to work generally other than in heavy labouring work.  I think it probable however that even if there is some improvement in his shoulder he will not go back to heavy labouring work in the future.  It is difficult to know just what effect this will have on his earnings.  I would expect that he will earn less to some extent because he cannot do heavy labouring work even when he is in employment, but there is no reliable basis upon which this can be quantified. 

I must make a global allowance, taking into account the fact that the plaintiff, prior to the accident, had a reasonably good work history and the evidence of Mr. Rutherford.  I think however that the sort of discounts that were used in the calculation submitted on behalf of the plaintiff were too low because they did not allow sufficient discount for future earning capacity.  I also take into account the decision of Australia Meat Holdings Pty Ltd v. McRoberts (CA 9295/97, 28.4.98), where the Court of Appeal reduced the award of damages for future economic loss assessed on a global basis for a much younger plaintiff who had suffered an injury which left him permanently unable to do heavy work with his right arm, at a time when he was just starting a possible career in a meatworks.  In all the circumstances I think a reasonable allowance for future economic loss is the sum of $40,000.

Part of the difficulty the plaintiff now faces is that he has been out of the employment market for so long, but that is partly due to factors which are not the responsibility of the defendant.  I suspect that it will take the plaintiff some time to get back into employment now, but once he does find a job which he can do, his previous history suggests that thereafter he will be a reliable and satisfactory employee. 

Loss of superannuation benefits is conventionally assessed at 6% of total economic loss.  On that basis I will allow a further sum of $3,720. 

Special damages were the amounts paid by the Workers’ Compensation Board (Exhibit 11) and the Fox v. Wood factor, and some allowance for past expense on pain killers.  The amount sought of $350 is modest and I think reasonable in light of the evidence.  These total $3,939 but only the past pharmaceutical would carry interest, for which I will allow $50.  There was a claim for gratuitous care on the basis of 5 hours per week; there was some evidence that some care was provided by Ms. Skinner, and some things were done by Mr. Nugent, and there may well have been times when the plaintiff was unable to do things for himself, but I suspect that in fact what occurred was that tasks were rearranged so that the plaintiff was avoiding more strenuous work which, had it been necessary, he could have done.  When he was living on his own he seems to have coped.  In all the circumstances, I am not persuaded that the plaintiff has proved that he had a need for assistance other than at a relatively minor level for a couple of years after the accident, and I will allow the sum of $1,000 for this.  I will allow interest at 4% for 3 years.  I will not make any allowance for future gratuitous care.  A small amount is sought for future pain killers; on the whole I think some allowance should be made under this head, but not in the amount claimed; I will allow $200. 

Summary

1:Pain, suffering and loss of amenities  $18,000.00

2:Interest on $10,000 at 2% for 3.75 years  $750.00

3:Past economic loss  $20,000.00

4:Future economic loss  $40,000.00

5:Loss of superannuation benefits  $3,720.00

6:Special damages  $3,939.00

7:Interest  $50.00

8:Gratuitous care  $1,000.00

9:Interest   $120.00

10:Future pharmaceuticals  $200.00

Sub-Total  $87,779.00
LESS
Workers’ Compensation payments (Exhibit 11)  $10,263.00
TOTAL  $77,516.00

There will therefore be judgment that the defendant pay the plaintiff the sum of $77,516 which includes the amount of $920 by way of interest.  I will circulate these reasons for judgment to the parties and invite submissions as to costs, but in the absence of submissions showing that some other order is appropriate, I propose to order that the defendant pay the plaintiff’s costs of and incidental to the action to be taxed. 

In conclusion, I think that I should say that this case is a good example of the value of surveillance video tapes in exposing exaggerated claims.  The surveillance in the present case was relatively extensive, and what was revealed was of particular assistance to me in resolving the matters in issue in the action.  Had this material not been available, and had the plaintiff’s complaints and medical opinion based on those complaints been accepted at face value, the damages would have been assessed at very much more than they have been. 

Counsel for the plaintiff:            M.P. Amerena

Counsel for the defendant:                 G.F. Crow

Solicitors for the plaintiff:  Carswell & Co

Solicitors for the defendant:                  Bressington & Partners

Dates of Hearing:  22, 23, 25, 26 February, 4 March, 9 April 1999