Danny Swinfield v Khudur Nasra - [2020] NSWDC 250

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Danny Swinfield v Khudur Nasra [2020] NSWDC 250
Hearing dates: 10-11 September 2019, 11-13 May 2020
Decision date: 29 May 2020
Jurisdiction: Civil
Before: Mahony SC DCJ
Decision:
Verdict and judgment for the plaintiff. For orders see [214]

Catchwords: Torts; motor vehicle accident
Legislation Cited: Civil Liability Act 2002 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
Cases Cited: Commercial Union Assurance v Ferrcom (1991) 22 NSWLR 389
Kallouf v Middis [2008] NSWCA 61
Mason v Demasi [2009] NSWCA 227
Medlin v State Government Insurance Office (1995) 182 CLR 1
Purkess v Crittenden (1965) 114 CLR 164
Seltsam Pty Limited v Ghaleb [2005] NSWCA 208
Simon v NRMA Insurance Ltd [1991] NSWCA 247
Watts v Rake (1960) 108 CLR 158
Category: Principal judgment
Parties: Danny Swinfield (Plaintiff)
Khudur Nasra (Defendant)
Representation:
Counsel:
R Sheldon SC/Ms K Boettcher (Plaintiff)
J Turnbull SC/J Sleight (Defendant)
Solicitors:
Brydens Lawyers Pty Limited
Carroll & O’Dea Lawyers

File Number(s): 18/170533
Publication restriction: Nil

TABLE OF CONTENTS

The Plaintiff’s claim - paragraph 1
Issues to be determined - paragraph 4
The plaintiff’s evidence - paragraph 6
The defendant’s evidence - paragraph 28
The plaintiff’s medical evidence - paragraph 54
The defendant’s medical evidence - paragraph 88
Cross-examination of the Orthopaedic specialists - paragraph 119
The plaintiff’s submissions - paragraph 133
The defendant’s submissions - paragraph 158
Determination – did the defendant breach his duty of care to the plaintiff? - paragraph 182
Causation - paragraph 199
Damages - paragraph 203
Treatment expenses - paragraph 204
Past economic loss - paragraph 206
Future economic loss - paragraph 209
The plaintiff’s claim for domestic care - paragraph 210

Contributory Negligence - paragraph 212
Orders - paragraph 214

Judgment

The Plaintiff’s claim

The plaintiff claims damages for personal injury suffered by him on 29 August 2017, when he was driving his motorcycle to work on the Central Coast Highway at Erina. At the intersection of Avoca Drive, the plaintiff’s claim is that he was stationary at a red light when a vehicle driven by the defendant failed to stop and struck his motorcycle from behind. The plaintiff has pleaded the defendant was negligent in so driving his motor vehicle.
The defendant admits to driving his vehicle and has not denied in his defence that his vehicle struck the plaintiff’s motorcycle from behind. Rather, the defendant’s case was that at the time immediately prior to the incident, the plaintiff was “lane filtering”, namely, riding his motorcycle between vehicles and in doing so darted in front of the defendant’s vehicle, not giving the defendant, who was at that time accelerating away from the lights, time to avoid colliding with the rear of the plaintiff’s motorcycle. The defendant thereby contends that the collision was caused by the actions of the plaintiff.
The defendant has further pleaded that, in the event the court finds that he was negligent, then the plaintiff was guilty of contributory negligence and any damages should be reduced accordingly.

Issues to be determined

The issues to be determined are therefore as follows:

Did the defendant breach his duty of care to the plaintiff?

If so, was that breach causative of the plaintiff’s injuries, if any?

Was the plaintiff guilty of contributory negligence?

What was the nature and extent of the injuries suffered by the plaintiff? and

Is the plaintiff entitled to an award of damages for:

Past wage loss

Loss of future earning capacity

A need for domestic assistance, both in the past and in the future; and

Past and future treatment expenses.

It is common ground between the parties that the plaintiff is not entitled to damages for non-economic loss.

The plaintiff’s evidence

The plaintiff gave evidence by way of background of various events in his life which are recorded in a chronology which he adopted and became Ex A in the proceedings. On 15 December 2008, he commenced employment at Gosford Hospital as a patient support assistant and by August 2017 had been doing that job for nearly nine years. The work involved moving patients to and from wards, taking patients throughout the hospital and cleaning duties. It involved some heavy work, for example, lifting of patients, and he worked a roster which involved seven days’ work and then two days off, seven days work and then five days off.
The plaintiff lived at Terrigal and travelled to work on his motorcycle. He gave evidence that on 29 August 2017 he was riding to work along the Central Coast Highway when he came to the intersection of that highway and Avoca Drive, which is controlled by traffic lights. He gave the following evidence:

“Q. What were you doing on Central Coast Highway on that day?
A. I was travelling to work. I was sitting - I pulled up to the intersection where the lights were. I was stationary when I heard a sound behind me, and that’s when - it was a loud sound, then I heard - looked at my left mirror, briefly looked to my right when I was struck from behind.
Q. What time of day was with?
A. Around 12.36pm.
Q. When you say you were stationary, what lane were you in?
A. I was in the second lane. There's a bus lane, there's the lane I was in and there's a lane to my right. I was in the middle lane.
Q. How long had you been stationary for?
A. Well, it would have been around 30 seconds.
Q. In terms of the noise you've described, can you tell us what it sounded like?
A. It was a very heavy sound, screeching and there was a lot of shunting. We were just shunting forward. It was a very loud noise.
Q. And when you looked in your left mirror, what did you see?
A. I looked in my left mirror, I seen nothing coming on that road turning to, left to Avoca and I, I didn’t see any bus or anything coming and the moment I looked in my right is when I was struck.
Q. Well, did you see anything in your right mirror before you were struck?
A. Only a glimpse of white lights is all I saw.
Q. And was the noise you’ve described, was that continuing at that point when you were struck?
A. Yes.
Q. Now, you've said that something happened when you were struck. What happened?
A. When I was struck I was - when I was struck I was initially flung back and when I've hit my head against the truck I've come back down hanging, I was hanging on for my life onto the handle bars once I've initially hit, flung back, come down. I've put my leg out to sort of brace myself and we were just getting shunted forward.
Q. How far did the bike move?
A. I'd say at least three metres.
Q. And did you feel anything in your body as that was happening?
A. Yes, I was, felt like I was - basically very, very twisted. As we've, as the bike's, as we been shunting forward I could feel myself twisting, trying to literally hold the bike up.
Q. Did the bike fall over?
A. It was on a 45 degree angle with the front wheel off the ground.”

When asked what happened after the incident, the plaintiff gave evidence that he got off the bike. He then said:

“I was very shaky. I walked to, around, basically to the side of the truck where the, I saw the other driver and I, I said, ‘What happened?’ He said he just didn’t see me and we exchanged information. Went from there.”

The plaintiff’s motorcycle was taken away from the scene by a truck, and the plaintiff tendered photographs of the defendant’s vehicle, which he contended demonstrated some damage to the front of the defendant’s vehicle (Ex B).
The plaintiff gave further evidence that prior to stopping at the lights he had been travelling in the right-hand lane, but at a distance of about 100 metres from the intersection he moved into the middle lane and then stopped at a red traffic light for a short period of time. There were two cars stopped in front of him at those lights.
Immediately following the accident, the plaintiff gave evidence that his neck was sore. He rang the hospital and took the rest of that day off. He then had two days off work where he was not feeling well and he described his neck pain as getting worse. He described feeling “very shaky” by which he meant unnerved from the accident, and that he was feeling anxious and scared. He continued to have headaches and he attempted to return to work on 1 September 2017, but stopped work on 2 September 2017.
On 12 September 2017, he consulted Dr Rubio and Dr Lim at the same medical clinic and commenced physiotherapy. He gave evidence that he continued to have soreness in his neck, left shoulder and lower back, and that he continued to consult Dr Lim on a weekly basis until the early part of 2018. Following the accident, the plaintiff gave evidence that his recreational and social activities were curtailed and he was unable to work due to his injuries. He was unable to work because the pain in his neck and back prevented him moving patients and hospital beds. He had enjoyed his work at the Gosford Hospital and intended to work there for the rest of his career until he retired.
In 2016, the plaintiff had completed a Certificate III as a first step to becoming a nurse. Having become an assistant in nursing (AIN), the next step was to become an enrolled nurse (EN), and then ultimately a registered nurse (RN), which would take about four years.
Since July 2018 the plaintiff had been consulting a psychologist, Mr Nelson, once per month, but gave evidence that his symptoms were increasing. This meant that he was struggling to manage and cope. He had separated from his partner in March 2018 because he was unable to do the things he used to do in their relationship. After a period of some 11 months, she moved back into his home as a flatmate and had provided domestic assistance to him.
The plaintiff gave evidence that he was unable to work because he was not physically able to move patients. He would also not be reliable in an emergency situation at the hospital. His mood was up and down.
In cross-examination the plaintiff gave evidence that he had consulted Drs Lim and Rubio at their practice on the advice of his solicitor who had helped him arrange an appointment there. He was questioned about reporting the matter to the police and the history of the accident that he had given to a number of medical practitioners.
The plaintiff was also questioned about his Motor Accident Claim Form (Ex 1), which contained the following description of the accident:

“I was sitting stationary in traffic, I heard skidding and looked in my mirror and my bike was then hit hard from behind.”

The plaintiff agreed that that description, which was not in his handwriting, contained no reference to him hitting his head on the front of the truck, or the front wheel of the motorcycle being lifted up.

The plaintiff was also questioned about the damage he alleged occurred to his motorcycle, which were exhibited in a photograph Ex C. The defendant’s case was put to the plaintiff as follows:

“Q. I want to suggest to you, sir, that this is the way the accident happened, that you were riding your bike between two lanes of slowing or stopped traffic, heading towards the red light at the intersection. Agree with that?
A. I - I disagree.
Q. Did you ride between two lines of traffic at all?
A. No, I don’t ride in that manner, sir.
Q. That the truck was on your left‑hand side as you were riding between the traffic, and that the truck was slowing because of the red light. I take it you disagree.
A. I disagree.
Q. The car in front of the truck was stopped as you were travelling between the two lanes of traffic. You agree with that?
A. I disagree.
Q. The lights changed to green, but you then pulled in front of the truck. You agree with that?
A. I disagree.
Q. By which time, though, the truck had commenced to accelerate from a low speed. Agree with that?
A. No.
Q. And when you pulled in front of the truck, you had to slow down because there was a car in front of you.
A. I was sitting stationary, sir.
Q. The truck was then forced to brake and try to avoid hitting you.
A. I disagree.
Q. And that this accident, sir, I suggest was caused by you darting in front of the truck, not giving him time to stop. Do you agree with that or disagree?
A. Disagree.
Q. I further want to suggest to you that it was a very modest, mild collision.
A. I disagree.
Q. That you were not pushed forward several metres as you'd think.
A. I disagree.
Q. Front wheel of your bike did not go up in the air as you'd told his Honour.
A. I believe - I believe it did.
Q. And that you made no complaint of pain to the truck driver. Is that right?
A. I didn't have a conversation in relation to the truck driver.
Q. I suggest that when he got out of the truck, the driver approached you and asked you if you were all right.
A. I actually asked him, "What happened?"
Q. And that you replied, "Yep." Did that happen?
A. Not to my recollection, no.
Q. He then asked you, "Where did you come from?" Do you remember him asking you that?
A. No.
Q. And you said, "I just came in front of you from your right‑hand side."
A. No.
Q. He said, "You didn't have enough space." And you said, "You should have seen me."
A. I asked him what happened and I said, "You should have seen me." He said, "I didn't see you, I was in a hurry." That is what he said to me.
Q. I'd suggest to you, sir, he didn't use those words, "I didn't see you, I was in a hurry." What do you say to that?
A. I disagree.”

The plaintiff gave further evidence that he had continued to suffer pain in his neck since the accident, which meant that he had problems turning his head to the left and right, which meant that his neck was very tight and painful. He had restriction of movement to about 45 degrees towards his shoulder on both his left and right-hand sides. He gave evidence that he acquired another motorcycle in March 2018, which he rode by himself. He gave further evidence that riding the motorcycle gave him pain in his neck and lower back. He agreed with the proposition that he had been riding the new motorcycle since he acquired it and he was challenged as to reports he had given various medical practitioners about whether he had ridden the motorcycle at all. He denied misleading one of those doctors about riding the motorcycle.
At that point, a surveillance video was shown to the court with leave previously granted on an ex parte application by the List Judge. The plaintiff was further cross-examined during that surveillance evidence, which showed him riding a motorcycle with a pillion passenger. He said that his previous evidence denying that he had ridden with a pillion passenger was a mistake. He agreed that the video showed him riding the motorcycle with his ex-partner. The plaintiff was also challenged about evidence that he had given that he difficulty bending over at the waist. He said he had difficulty raising his left arm above his shoulder level at times, and notwithstanding the evidence he gave of having pain in his neck and left shoulder, the surveillance video showed him carrying a bag over his left shoulder. The plaintiff was also shown to be sweeping his balcony.
The plaintiff gave evidence that he continued to have physiotherapy treatment which provided him with mild relief for 48 hours. He had hoped to return to his job at the hospital on light duties, but his employment had been terminated. He had not sought any other work at all since then. It was put to the plaintiff that he was perfectly capable of doing the work he was doing at the hospital before the accident, which he denied. It was further put to him that there was a whole range of other work that he could do, which he also denied. It was put to the plaintiff that he could do administrative or telemarketing work, but he answered that he did not have any computer skills. He denied exaggerating his physical problem or any problems that he had from a psychological perspective.
The plaintiff called Melanie Guardo Needham, who gave evidence that from time to time she had been the plaintiff’s girlfriend. They had met in 2015 and had moved in together in 2016. At the time of the plaintiff’s accident in August 2017, they were living in premises at Terrigal.
Ms Needham gave evidence that on the day of the accident she had been driving ahead of the plaintiff towards Gosford. He rang her and told her he had had an accident and asked her to return and pick him up. When she first saw him she described him as “pretty shaky”. He was sitting on the footpath and she saw the motorbike on the median strip with “glass everywhere”. The plaintiff said to her, “I can’t believe this truck hit me”. The plaintiff was organising a tow truck and she left to go to work.
Ms Needham next observed the plaintiff later that afternoon at their home. She described him as “still pretty trembling and reddish, and, like, he’s just holding hand and stuff”. When asked to describe what she meant by “reddish”, she said:

“He’s pretty reddish, like, face is just, like – seems to look scared or – I don’t know how to describe it.”

Ms Needham described the plaintiff as being a pretty happy person prior to the accident. She gave evidence of their social and recreational activities which involved horse riding, a lot of active things, as well as clubbing and dancing almost every weekend. The plaintiff would also cook three or four times a week and they shared the cleaning and domestic chores equally.
Ms Needham gave evidence that following the accident, the plaintiff was “not himself most of the time”. She described him as “always seem to get cranky” and they argued. She moved out in March 2018, but returned on 6 June 2019. They were no longer in a relationship, however, she now did the cooking and all of the cleaning, which would take her between six and eight hours. She continued to live an independent life and she gave evidence that if she found somebody else she would leave the plaintiff where he is.
In cross-examination, Ms Needham agreed that the plaintiff had, since the accident, purchased another motorbike and that she had ridden on that bike as a pillion passenger a couple of times. She agreed that before the accident she did most of the cleaning. When shown Ex C, she agreed that, at the scene of the accident, the plaintiff’s motorcycle was sitting on the road, but when challenged that it was not on the median strip as she had given evidence of, she said that it was between the road and the “island”.

The defendant’s evidence

The defendant gave evidence on the resumption of the hearing on 11 May 2020. He gave evidence that he commenced truck driving in June 2016 and had been driving an 8 tonne rigid‑axle pantechnicon for a period of six months prior to the accident on 29 August 2017. The truck was fairly new and in good working order.
On the day of the accident the defendant had made a number of deliveries and was returning to his depot in Sydney. He was driving in a westerly direction in the middle of three lanes.
The defendant gave evidence that he could see traffic lights at the intersection where the accident occurred from a few hundred metres away. The traffic lights were red when he first saw them and there was one vehicle stopped at them. He had been travelling at a speed of around 40 or 50 kph and was slowing down as he approached the lights.
The defendant gave evidence that as he approached the intersection, he saw the plaintiff’s motorbike in his rear vision mirror. He gave this evidence:

“Q: What did you see Mr Nasra?
A: I seen a little motorbike or scooter, whatever it may have been, coming from behind, much like in the middle of myself and the car stopped on the red light.
Q: Which mirror were you looking in?
A: My right mirror.
Q: And did you continue on towards the stopped vehicle in front of you?
A: Yes.
Q: And what happened then?
A: As I was coming to a stop, he’s come along side.
Q: Who’s come along side?
A: The motorbike, the vehicle. That was in the middle, and as it’s gone green, I’ve put the truck back into gear to take off and, before I knew it, I had collided with the motorbike.

Q: Where was the motorbike in relation to the two white lines that delineated the lane you were in?
A: Right on it, on the white line.
Q: Which white line?
A: The broken white line between – on my right hand side.
Q: When you had a collision, where was he?
A: In front of my truck.
Q: What speed were you doing when you collided with the bike?
A: I would say 5 to 10 kph.
Q: Was the bike moving?
A: It was – yes it started moving.
Q: Did the bike move forward when you hit it?
A: No.”

The defendant gave evidence that he stopped his vehicle, got out and had a conversation with the plaintiff. He saw some damage to the back of the bike, but when he looked at the front of his truck he didn’t really notice any damage at that time.
The defendant gave evidence that at no stage did the plaintiff come off his bike and that he was sitting on his bike when he, the defendant, got out of his truck. They moved the vehicles to the side of the road. They then had a conversation. The defendant gave this evidence:

“A: I asked him if he was okay. He was a bit shocked. He said ‘yes’. I also asked him does he need help with getting the bike home or anything like that. He said, ‘no’, he’ll get the help he needs, and then we exchanged details.
Q: Do you remember any other conversation?
A: Not that I can remember.”

The defendant gave evidence that on a later occasion he looked at the front of his truck and noticed a little damage on the bottom of his bumper bar.
In cross-examination, the defendant gave evidence that the damage on the front of his truck was more to the right hand side of the truck than the middle. He confirmed that he was driving straight back to his depot and that he was paid by the hour, but denied that he was returning as quick as he could do it. He could not remember how many hours he had left on his shift. The defendant gave evidence that he first saw the plaintiff’s motorcycle when he was not far at all from the red light, “maybe a car length or two”. He clarified that by saying that he was “referring to being a car length or two behind the car that was stopped at the traffic light”. He was asked:

“Q: Did you tell anybody that you had seen the motorcycle riding between two lines of traffic?
A: Well, I don’t know. Yeah, we would have told who we – we wanted to tell.”

The defendant had previously made a statement, however, he could not remember whether that statement contained a statement that the plaintiff was riding between two lanes of traffic. He was then asked:

“Q: Did you see Mr Swinfield ride between two lanes of traffic?
A: Yes I did.
Q: When?
A: When I seen him in my mirror.
Q: Where was that …
A: On the road that the collision happened on.
Q: How far from the light were you?
A: When it happened or when I saw him?
Q: When you saw him.
A: When I saw him, I was – I was almost down to like a complete – stop so like I said, about one or two car lengths.”

The defendant agreed that there were a number of cars in the right hand lane beside him stopped at the traffic lights. He was then asked:

“Q: When you got out of the truck and spoke to the rider of the motorcycle, did you say to him, ‘Where did you come from?’?
A: I think I might have but it – it’s that – I didn’t – it’s – I didn’t say that because I didn’t see him. It was just more of like where did you come from in the sense of like how did you end up in front of me? Like that sort of thing. Like it was just something I just said to him.”

The defendant was challenged about that answer and asked:

“Q: You asked him where he came from because you didn’t see him before the collision, isn’t that right?
A: I did see him before the collision, but I didn’t see him, that’s why I had the collision with him, that he appeared in front of me the way he did.”
Q: Well, Mr Nasra, you either saw him before the collision or you didn’t – which is it?
A: I saw him before the collision.
Q: So there was no reason for you to ask him where he came from on your version, was there?
A: Probably not, face to face, then and there, no.”

The defendant then agreed that the motorcycle pulled in front of his truck. He was not travelling fast at all (“10 k’s if that”), and had not come to a complete stop. He gave evidence that the lights then turned green and he put the truck into gear. He was then asked:

“Q: Where was the motorcycle at that point?
A: So as I – at that point, the motorcycle would have been most likely half way through my truck.
Q: Does most likely mean you don’t know?
A: Well, I didn’t pay attention, so yeah.
Q: So where – how long prior to that was it that you’d seen the motorcycle in your mirrors?
A: I’d seen him as he approached the back of my truck coming between the truck and the cars on the right.
Q: The next time you saw him, he was where?
A: In front of my truck. We had collided.”

The defendant denied that he accelerated his vehicle. He then gave evidence that the motorcycle was not stopped in front of him, but had to brake to avoid hitting the car in front of the truck. That vehicle was a car length in front of the truck and had not started moving at that point.
The defendant was then asked:

“Q: You’d not had a chance to brake before colliding with him, had you?
A: I didn’t really have a chance, no, because it happened so quick, and that’s why I say I just pretty much tapped the motorbike.
Q: About 10 or so kph?
A: Probably would have been – like I said, give or take, yeah.
Q: You say the collision between your truck and his motorcycle didn’t move the motorcycle?
A: Not really; or no not at all.
Q: Well which is it, not really or not at all?
A: I don’t know.”

The defendant agreed that the collision put a mark on the front of the truck and flattened the tyre of the motorcycle. He was then asked:

“Q: You see, you weren’t paying attention to what was going on as you’re approaching the intersection, were you?
A: I was definitely paying attention.
Q: Well you have a bit of a problem in paying attention when you’re driving don’t you?
A: No, never, eyes always on the road looking at my surroundings.
Q: Except when you’re using a mobile phone?
A: Why would I be using a mobile phone?
Q: Do you say you’ve never used a mobile phone while you’ve been driving?
A: I have used a mobile phone, just not while driving.”

The defendant then gave evidence that in March 2017 he was charged with using a mobile phone while driving and paid a fine.
The defendant then gave the following evidence:

“Q: What I want to suggest to you is that the reason you said to the rider of the motorcycle, ‘Where did you come from?’, is because you didn’t see him before the truck hit the motorcycle did you?
A: No. I definitely saw him before I hit him.
Q: The first time you saw him was in front of the truck. Is that right?
A: No, that’s not right.
…
Q: If the motorcycle was straddling the right line to your right it would have been a simple matter for you to steer slightly to the left and avoid him, wouldn’t it?
A: It would have been but I’m pretty sure he had enough room.
Q: What do you mean by that last answer?
A: He came through the middle, and I didn’t move because of the speed I was going at and I’ve just almost going to come to a complete stop.”

The defendant gave evidence that he did not recall the plaintiff saying to him after the accident, “You should have seen me”. He denied saying, “I didn’t see you I was in a hurry”. He also denied that when he first saw the motorcycle it was stationary and that after the collision the bike moved a number of metres forward, and the front of the bike went up in the air. He gave evidence that following the accident the bike was less than a metre from the front of the truck.
In re-examination, the defendant gave evidence that he saw the plaintiff’s motorcycle on the white line in his rear view mirror as it was coming up from behind the side of his truck. He denied that he was in a hurry prior to the collision.
The defendant also relied on evidence from Ms Holly Luck, who, at the time of the accident, was a Senior Constable of Police stationed at Brisbane Waters Command. Her evidence was interposed during the plaintiff’s case as she is now a resident of Queensland. Ms Luck gave evidence that she created a COPS event report on 29 August 2017 in relation to this accident. Whilst she had no independent recollection of doing so, by reference to the computerised record, she gave evidence that subsequent entries were made on 14 September, 15 September and 5 October 2017.
In relation to the entry dated 5 October 2017, Ms Luck was the police officer who contacted that plaintiff in response to a letter received by New South Wales Police from the plaintiff’s solicitor. It was her evidence that she described the plaintiff on the COPS entry as “very vague and indecisive” about the details of the collision.
Ms Luck gave evidence that when asked what speed the plaintiff was travelling, and what direction he was travelling in, he replied on both occasions with words to the effect of “I don’t know”. Further, when asked what injuries he sustained, she gave this evidence:

“A: His reponse was that he didn’t know and he didn’t have the paperwork in front of him.”

Ms Luck gave evidence that when she probed him further about injuries he may have suffered, he could not elaborate. When asked how he responded, she gave evidence that he said, “It was severe pain and psychological distress”. When asked where the severe pain was he responded with words to the effect of, “I don’t know”.
In cross-examination, Ms Luck gave evidence that she made no enquiries as to who was working at Terrigal Police Station on 14 September 2017. She agreed it would be important to know whether the plaintiff had actually been to that police station on that date. She knew the circumstances of the accident only from the letter received from his solicitor.
Ms Luck agreed that turning a person away from a police station who was trying to report an accident in which they claimed to have suffered injuries, was contrary to her understanding of what a police officer should do.
There was no re-examination.

The plaintiff’s medical evidence

On 12 September 2017 the plaintiff was examined by Dr Rubio complaining of the following symptoms:

“Headache, dizziness, nose bleeding, neck pain and stiffness, radiating to left shoulder, pins and needles in left hand, lower back pain and stiffness, sleeping trouble, flashbacks, anxious and cautious to drive, memory and concentration problems.”

Dr Rubio diagnosed the following:

“Head injury, Cervical Spine Radiculopathy … lumbar spine strain … acute stress disorder.”

The plaintiff was referred for physiotherapy and counselling.

On the same day, the plaintiff was examined at the same surgery by Dr Lim, and referred for a perfusion scan of his brain which he underwent on 15 September 2017, which showed no abnormality. On examination he had restriction of movement of the cervical spine, left shoulder and lumbar spine and was referred for heat therapy.
On 26 September 2017 he was examined at the same surgery by Dr Kim, who noted that he complained of pain in the neck, left shoulder and lower back and was assessed as having an acute stress reaction to his injuries.
On 3 October 2017 the physiotherapist, Ms Choie, noted that he had restrictions in sitting, reading and writing, lifting and walking, but was otherwise improving. On assessment, he demonstrated restriction of movement in his cervical spine and lumbar spine.
He remained under the care of Dr Lim and Ms Choie for the balance of 2017. On 5 December 2017 Dr Lim reported that injuries he received to his neck, back and head had not stabilised and he was undergoing ongoing physiotherapy and counselling. He also reported difficulties with general household chores. Dr Lim referred him for an MRI of his cervical spine.
The plaintiff remained under the care of Dr Lim throughout 2018 and was referred for counselling with Mr C Neilsen, psychologist, which he commenced on 2 July 2018, thereafter on a monthly basis. On 11 March 2019, Mr Neilsen described his current symptoms and diagnosis as follows:

“Disturbed sleep, loss of confidence, panic, anxiety, uncontrollable worry, avoidant behaviour, decreased stress tolerance, depressed mood, helplessness, despair, intense sadness, loss of motivation, hypervigilance.
Diagnosis: Post Traumatic Stress Disorder.”

Mr Neilsen described the prognosis as guarded.

An MRI scan of the left shoulder and cervical spine taken on 8 May 2018 showed no structural abnormality, but the report concluded:

“Cuff insertional hyper intensity, the findings might reflect tendinopathy, however, contusional injury/bruising could give a similar appearance. There is no evidence of cuff tear … there is underlying bursitis.

With respect to the thoracic spine, the report concluded:

“Minimal thoracic spine degenerative disc disease, without evidence of canal stenosis, nor foraminal compromise. No neural impingement … cervical spine degenerative disc disease was noted, potentially contributing to the left side of symptoms …”

On 19 September 2018, an MRI scan of the cervical and lumbar spine was carried out. In respect of the cervical spine, it was reported:

“At C3/4, there is mild left paracentral disc ridging without significant canal or foraminal stenosis.
At C4/5, there is mild disc ridging not causing significant canal stenosis. There is mild bilateral foraminal stenosis.”

Otherwise the study was normal.

The report on the lumbar spine demonstrated:

“No significant spondylosis, canal or foraminal stenosis is identified. No site of nerve root impingement is evident.”

The plaintiff was referred to Dr Azhar Khan, consultant occupational physician, who assessed him on 6 December 2018. At that time the plaintiff complained of constant neck pain, localised to the left base of his neck, which was aggravated by prolonged sitting, repetitive overhead activities and twisting his neck to the right. He also suffered constant dull lower back pain which felt better with movement.
The plaintiff also reported nightmares and difficulty sleeping and that he

“Only rides his motorbike for short distances. He is anxious and hypervigilant when waiting at a traffic intersection whenever there was a truck nearby.”

He had been treated with physiotherapy and counselling and was taking Neurofen as required and Lovan (an anti-depressant). Following examination, Dr Khan diagnosed chronic neck pain associated with neurological symptoms suggestive of left-sided C8 radiculopathy, chronic non-specific low back pain and PTSD. It was his opinion that the plaintiff’s psychological health was the primary issue that affected his fitness to work in his pre-injury duties, followed by his neck and lower back injury respectively. He did not anticipate that he would be able to return to his pre-injury duties and that therefore require vocational rehabilitation and redeployment.
Dr Khan recommended that he be assessed by a psychiatrist and the plaintiff was referred to Dr Abdal Khan, consultant psychiatrist, who examined him on 1 April 2019. Following mental state examination, Dr Khan assessed him as presenting with PTSD as a result of his motorbike accident on 29 August 2017, and made recommendations for ongoing medication and psychological therapy.
On 2 October 2019, the plaintiff underwent a further MRI scan of the cervical spine. The report included the following abnormal findings:

“At the C3/4 level, there is broad-based disc bulging with moderate grade bilateral foraminal stenosis. No canal stenosis centrally and the facet joints appear mildly degenerative.
At the C4/5 level, there is broad-based disc bulging with moderate to high grade bilateral foraminal stenosis and impingement of C5 nerve roots. There is canal stenosis with mild cord compression, no myelopathy. Facets joints are mildly degenerative.
At the C5/6 level, there is broad-based disc bulging with moderate grade bilateral foraminal stenosis. No canal stenosis centrally and the facet joints appear unremarkable.
At the C6/7 level, there is broad-based disc bulging with high grade bilateral foraminal stenosis and impingement of C7 nerve roots. There is canal stenosis with mild cord compression, no myelopathy.”

The report concluded:

“Canal stenosis with mild cord compression of C4/5 and C6/7 levels. High grade bilateral foraminal stenosis and impingement of C5 and C7 nerve roots bilaterally.”

The plaintiff was referred for a left C3/4 CT‑guided foraminal/perineural injection, which he underwent on 30 October 2019.
The plaintiff relied on five reports of Dr Peter Conrad dated 4 April 2018 (two reports), 12 October 2018, 3 April 2019 and 2 October 2019. Dr Conrad examined the plaintiff on 4 April 2018, at which time he complained of ongoing pain in his neck, radiating to his left shoulder and down his left arm. He had pins and needles in the fingers of his left hand and ongoing back pain. The back pain radiated down the left leg, and his pain was aggravated when standing, sitting, bending or lifting. At that time he was taking medication for pain but no longer undergoing physiotherapy, and he had not as yet commenced psychological counselling. Due to the chronicity of his symptoms, Dr Conrad recommended an MRI scan of the cervical spine and t horacolumbar spine and was of the opinion that he would have difficulty returning to his full-time work as a patient support assistant, but would be able to do light work with restriction on his hours, his ability to stand and sit and not lifting more than 5kgs in weight.
On 12 October 2018, Dr Conrad reported on the MRI scan taken on 19 September 2018. He was of the opinion that those scans ruled out any major impairment in the lumbar spine, but showed discal injuries in the cervical spine due to the motorbike accident on 29 August 2017. The scans, in his opinion, supported his recommendations for conservative treatment.
Dr Conrad re-examined the plaintiff on 3 April 2019 and reported that the plaintiff’s condition remained unchanged, with ongoing pain in his neck, radiating down the left shoulder and arm, and ongoing back pain radiating down the left leg. This pain was aggravated by standing, sitting, bending or lifting. He also continued to have ongoing post-traumatic anxiety. Dr Conrad recommended conservative treatment at a cost of approximately $2,500 per year and opined that the plaintiff would have difficulty returning to full-time work as a patient support assistant, but would be able to do light work with the same restrictions.
In a report dated 2 October 2019, Dr Conrad reported having viewed the surveillance evidence, various medical reports relied on by the defendant, and the transcript of cross-examination of the plaintiff relevant to the surveillance videos. Having summarised the various documents, Dr Conrad adhered to his previous opinions as to the plaintiff’s ongoing symptoms and his capability regarding work. He stated:

“I am of the opinion that on a good day and taking his pain medications, Mr Swinfield was perfectly able to carry out the activities of riding a motorbike, walking along streets or up and down stairs, or doing light lifting, as I did not see him lift anything that in my view would be over 5kgs in weight. As such, all my opinions expressed in my reports remain unchanged.”

Dr Conrad was not required for cross-examination.
The plaintiff relied on a report of Dr S Low, occupational physician, dated 18 March 2019. Dr Low examined the plaintiff on the same day and gave the following diagnoses:

“Whiplash associated disorder Grade 2 with associated restrictions and shoulder range of motion.

Musculoligamentous injury of the lumbar spine with moderate guarding on examination.

Psychological symptoms outside his area of expertise.”

Dr Low was of the opinion that the plaintiff would be unable to return to his pre‑injury duties as he would have:

“Difficulty moving around the hospital and would be unable to perform manual demands involved in patient care without aggravating his symptoms”.

Overall, he considered that the prospect of Mr Swinfield returning to gainful employment as low, based on poor prognostic factors including the severity and duration of his pain symptoms, as well as co-morbid psychological symptoms.
Dr Low opined that the plaintiff had a poor prognosis and recommended a multi‑disciplinary pain management program.
In a report dated 24 April 2020, having reviewed the surveillance video evidence, Dr Low commented on the tolerance required in riding a motorcycle and concluded that the evidence of the plaintiff conducting activities of daily living on separate occasions in October 2018 and September and December 2019 suggested a capacity to perform some usual domestic duties and work duties. It was not clear, however, whether he was able to “conduct similar activities on a consistent basis or whether his observed activities were done in discomfort”.
On 13 August 2018 the plaintiff was assessed by Dr S Ryan, consultant occupational physician, who provided a report dated 11 September 2018. Dr Ryan opined that the plaintiff’s current injuries were related to dysfunctional pain of the neck, radiating out into the left shoulder, along with lower back pain. She described him as “extremely motivated to return to work” and considered him fit for part-time work with current restrictions (i.e. lifting, sitting and standing), or full-time capacity in a sedentary or office-based role.
Neither Dr Low or Dr Ryan were required for cross-examination.
The plaintiff relied on evidence of Dr Peter Giblin who provided four reports dated 12 April 2018, 29 August 2018, 26 April 2019 and 1 October 2019. The plaintiff was examined first by Dr Giblin on 5 April 2018 and following a physical examination, but having examined no radiological investigations, Dr Giblin diagnosed provisionally that he had suffered a soft tissue injury to his cervical spine with referred symptoms to the left upper arm and a soft tissue injury to his lumbar spine with referred symptoms to his left leg, which were “reasonably causally related to the subject motor vehicle accident”. He assessed him as permanently unfit for heavy, repetitive bending, lifting and twisting, or prolonged periods of uninterrupted standing or walking.
Dr Giblin re-examined the plaintiff on 27 August 2018 and in a report dated 29 August 2018, reported that the plaintiff still had symptoms in his neck and low back, with referred symptoms to his left arm and left leg, respectively. His complaints were of constant pain and stiffness in his neck, low back and thoracic area, together with intermittent numbness and pain involving his left arm and hand, and his left leg and foot. Following physical examination and examination of the MRI scans of his thoracic spine and left shoulder dated 8 May 2018, Dr Giblin opined that the plaintiff remained permanently unfit for “heavy labouring work as described”, but that he was fit for sedentary or office‑based work.
Dr Giblin re-examined the plaintiff on 23 April 2019 when the plaintiff reported persisting symptoms predominantly in his neck and left shoulder girdle area, together with his low back and buttock. He reported recurrent pins and needles in his left hand. Following physical examination, together with examination of the MRI scans of 8 May 2018 and 19 September 2018, Dr Giblin assessed him as permanently unfit for work involving unrestricted pushing, pulling, lifting or twisting, low bearing, impact activities or constant use above shoulder height. He further opined:

“The deterioration of his injuries will slightly and progressively chamfer his work opportunities in the open labour market.”

In a report dated 1 October 2019, Dr Giblin noted that he had examined the video surveillance evidence which he summarised. He also noted having read the medical evidence relied upon by the defendant and the transcript of the cross-examination of Mr Swinfield.
Dr Giblin opined that the plaintiff’s recurrent symptomatology was consistent with the surveillance footage and he had no reason to change the general thrust of the comments and opinion previously expressed by him. He stated:

“By way of explanation, I would point out that these types of soft tissue injuries to the cervical and lumbar spine, are associated with characteristically episodic production of symptoms which vary from day to day and from activity to activity. They may present an apparent inconsistent picture but, in fact, the inconsistencies are consistent.”

On 17 February 2020, Dr Giblin participated in an orthopaedic expert conclave with Dr Ian Barrett, who was qualified on behalf of the defendant. The results of that conclave are referred to below.

The defendant’s medical evidence

The defendant relied on four reports from Dr Ian Barrett, orthopaedic surgeon, dated 1 June 2018 (two reports), 21 March 2019 and 2 September 2019. Dr Barrett examined the plaintiff on 28 May 2018 and took a history of the accident on 29 August 2017. Following examination of the plaintiff, Dr Barrett opined the following diagnosis:

“Non-specific mechanical cervical pain

Non-specific left shoulder pain

Non-specific lumbar mechanical back pain

Pain behaviour”

Dr Barrett also opined that the plaintiff’s disabilities were wholly attributable to the motor vehicle accident. He stated that the prognosis was guarded and that he would have expected a far greater resolution of the plaintiff’s symptoms. From an orthopaedic stand point, Dr Barrett was of the opinion that the plaintiff was immediately capable of returning to his pre-injury employment as a patient support assistant on full hours without restriction.
In his report dated 21 March 2019, Dr Barrett commented on the MRI scans of 8 May 2018 of the plaintiff’s left shoulder and thoracic spine, and the MRI scans of the cervical lumbar spine performed on 19 September 2018. Having reviewed that documentation, Dr Barrett did not wish to alter his previously expressed opinions as to the plaintiff’s work capacity.
In a report dated 2 September 2019, Dr Barrett reported on a surveillance report dated 12 December 2014 (which was not tendered in evidence) and the video surveillance evidence for the period 10 October 2018 to 3 December 2018. Dr Barrett also referred to a surveillance report from Morris J Kerrigan dated 22 August 2019 (which again was not tendered in evidence) and summarised the accompanying DVD. The description of that material is consistent with the video surveillance shown in court.
Dr Barrett expressed the opinion that the plaintiff had recovered from any injuries sustained in the motor vehicle accident of 29 August 2017 and that his alleged disabilities were inconsistent with the video evidence. He further opined that the plaintiff was immediately capable of returning to his pre‑injury employment as a patient support assistant on full hours without restriction.
Dr Barrett participated in the orthopaedic expert conclave on 17 February 2020 with Dr Giblin, which is referred to below. He was also cross-examined.
The defendant relied on three reports of Dr Selwyn Smith, consultant psychiatrist, each dated 19 December 2018, together with a further report dated 28 August 2019. Dr Smith examined the plaintiff on 3 December 2018 and noted that he had no relevant physical or psychological medical history. At that time the plaintiff was undergoing counselling with Mr Neilsen and taking Lovan and Neurofen on a daily basis. The plaintiff reported that he had returned to riding his motorcycle, but that he was “nervous when he does”. Dr Smith noted that he rode the motorcycle for short distances only because of “anxiety”. Following mental state examination and a review of various medical reports he was qualified with, Dr Smith opined that the plaintiff’s predominant symptomatologies related to his orthopaedic injuries, however, he opined that the plaintiff suffered heightened levels of anxiety about his symptomatologies. In Dr Smith’s opinion, the plaintiff’s focus on his symptoms appeared to be disproportionate to their seriousness. He stated:

“Mr Swinfield predominant symptomatologies from a psychiatric point of view in my opinion, are predominantly related to the substantial loss of income he has received and the decision of his employer that he is not fit to reintegrate into his work role. He expressed to me a desire to work and certainly from a psychiatric point of view, there was no clinical evidence to exclude him from working. He felt helpless and powerless given his situation and in my opinion this is the predominant effect that the accident has had on him from a psychiatric perspective. In all other respects, in my opinion, his psychological symptomatologies have been but normal variance in respect to the accident that occurred.”

Dr Smith concluded that the plaintiff did not demonstrate diagnostic criteria for any formal psychiatric disorder. He had no need for any future treatment from a psychiatric or psychological point of view.
In a separate report dated 19 December 2018, Dr Smith opined that the plaintiff’s psychological symptomatologies “are secondary to his pain and loss of ability to reintegrate into work as stated by his employer”. Dr Smith went on to state that he anticipated that the plaintiff’s symptoms will improve when he is “allowed to reintegrate into his current position or an alternative position”.
In his report dated 28 August 2019, Dr Smith commented on surveillance material, which included the two surveillance reports referred to above, together with the DVD evidence.
In the same report, Dr Smith commented on a report of Ms K Glancey, psychologist, dated 27 February 2019, which is referred to below, and with which Dr Smith respectfully disagreed with the opinions expressed therein.
With respect to the surveillance evidence, Dr Smith stated that the evidence revealed no overt physical restrictions of the type reported by the plaintiff. He went on to state:

“He also did not reveal overt psychological symptoms. The video surveillance casts considerable doubt on the voracity of Mr Swinfield’s account of the impact the accident has had on him. The surveillance material also goes some considerable way to discounting the degree of impairment highlighted in Ms Glancey’s reports.”

Dr Smith was not required for cross-examination.
The defendant relied on a report of Dr P Allen dated 23 August 2018. Dr Allen examined the plaintiff on 13 August 2018. Following physical examination and review of the MRI scan of the thoracic spine dated 8 May 2018, Dr Allen diagnosed pre-existing degenerative spinal disease and described the plaintiff’s current symptoms as being:

“Of activity related discomfort in the spine. The symptoms are aggravated by lifting and bending.”

Dr Allen went on to note some inconsistency in the plaintiff’s presentation, by what he described as “abnormal illness behaviour”. He also noted the plaintiff demonstrated “stigmata of anxiety” on assessment.
Dr Allen opined that the plaintiff was capable of full time work in an administrative or sedentary position which avoided lifting and heavy physical work. This incapacity related to pre-existing degenerative changes in his spine. Finally, he opined as follows:

“At the utmost I would expect that the injuries sustained (with the report of mechanism of injury) may have resulted in an aggravation of his pre-existing degenerative spinal disease to have lasted six weeks at the utmost. Ongoing symptoms relate to his pre-existing degenerative condition.”

The defendant also relied on two certificates issued under Pt 3.4 of the Motor Accidents Compensation Act 1999 (NSW) (“MACA”). The first was from assessor Chris Harrington, an orthopaedic surgeon, who opined that the following injuries were caused by the motor accident:

“ - Cervical injury -soft tissue injury
- Left shoulder – soft tissue injury derived from cervical spine
- Thoracolumbar spine – soft tissue injury.”

Dr Harrington assessed a whole person impairment of 9%.
The second report was from assessor Inglis Howe-Synnott, psychiatrist. He diagnosed an adjustment disorder with anxiety and depressed mood caused by the motor accident, a whole person impairment of 5%.
The defendant also relied on a combined report of Dr Graham Hall and Mr Andrew Hook, under the letterhead “Earning Capacity Assessments” dated 16 August 2019, which was admitted over objection, together with two further separate reports of Dr Hall and Mr Hook dated 30 August 2019. In their combined report, Dr Hall, in Part A thereof, having reviewed the MRI scans of 8 May 2018 and 19 September 2018, and having examined the plaintiff, diagnosed soft tissue injuries to his neck and back. As an occupational physician, he went on to opine the following recommended restrictions on the plaintiff’s work capacity:

“Lifting/carrying capacity 5 kilograms with occasional lifting to 10 kilograms. No repeated lifting
Sitting tolerance - 30 minutes
Standing tolerance - 20 minutes
Pushing/pulling ability – avoid strenuous pushing and pulling
Bending/twisting/squatting ability – avoid repeated bending, twisting and squatting
Driving capacity for suitable employment – 45 minutes
Ability to travel at least 90 minutes by car to get to work – yes provided he can take a five minute break after 45 minutes of driving
Ability to travel at least 90 minutes by public transport to get to work – yes provided he can alternate posture
Other – avoid fixed or extreme neck postures or rapid or repetitive neck movement.”

Dr Hall qualified his opinion by deferring to expert opinion on the plaintiff’s psychological factors. He also stated:

“I found an inconsistency in neck flexion when observed as opposed to requested – clear evidence of exaggeration. I did not detect any other inconsistency in Mr Swinfield’s presentation, but in the documents there is sufficient information to cast considerable doubt of the extent of any injuries which resulted from the subject accident. The above restrictions are recommended on the basis of the apparent clinical findings, but I am not persuaded that the clinical findings represent Mr Swinfield’s true condition. Observation in a non-clinical context may be helpful.”

In Part B of the report, Mr Hook, a rehabilitation consultant, set out, based on Dr Hall’s findings, work options for which the plaintiff was unsuited and in [B9], work for which he was suitable, namely, a security guard, being an alarm, security and surveillance officer operating in a CCTV or control room.
In his supplementary report, Dr Hall was qualified with the surveillance evidence. He stated:

“In my previous report I expressed reservations about the restrictions that I was recommending. These reservation have been fully vindicated and in my opinion Mr Swinfield is fully fit for his pre-injury employment and no restrictions or future treatment are required.”

In his supplementary report of 30 August 2019, Mr Hook also referred to the video surveillance evidence and Dr Hall’s supplementary report. He set out eight work options based on the plaintiff’s education, training and experience, namely, patient support assistant, food process worker, service station attendant, sales assistant, product assembler, warehouse assistant or store person, courier and packer.
The defendant relied on a report of Ms K Glancey dated 22 October 2019 addressed to the plaintiff’s solicitors. It was therefore a report prepared on behalf of the plaintiff, and presumably served by the plaintiff on the defendant’s solicitors. In the report, the author refers to the reports of Dr Barrett dated 2 September 2019, Dr Smith dated 21 August 2019 and Dr Hall and Mr Hook dated 30 August 2019, together with the surveillance footage. In respect of the footage, the author noted that the plaintiff did not appear to “weave through traffic” as often occurs with motorcyclists. Conservative riding may be a reflection of “mild anxiety”. She went on to state:

“At assessment with me on 28 August 2018, Mr Swinfield reported to suffer a number of symptoms which were consistent with the nature of the motorcycle accident including sleep disturbance, mood disturbance and trauma-related anxiety. I diagnosed Post Traumatic Stress Disorder. Should Mr Swinfield suffer PTSD, one would expect that he would have more difficulty travelling on a motorcycle, hence his reports of anxiety with motorcycle riding appear to be exaggerated. In view of the footage, I doubt that the provisional diagnosis of PTSD can be defended.
In view of the fact that Mr Swinfield appears to have exaggerated his experience of mental disturbance, it is difficult to maintain confidence in other symptoms of disturbance as reported.”

The record of the orthopaedic expert conclave held on 17 February 2020 became Ex 9.13. As Dr Giblin agreed with the diagnosis made by Dr Barrett in his first report, there was little area of disagreement, rather, Dr Giblin described it as “more as a variance”. Dr Barrett opined that the most critical thing was the initial history, in particular, the fact that no ambulance was called, “indicating that he had no or little pain at the time”. He then took 12 days until he sought medical attention. The natural history was that such a minor soft tissue injury would get better within a matter of days or weeks, and that his pre-existing cervical degenerative changes were extremely common in the community, particularly in a 40 year old man. Thus, Dr Barrett was of the opinion that the plaintiff’s continuing symptoms were due to a combination of factors including his degenerative changes and “pain behaviour”.
Dr Giblin stated, “I tend to agree with what Dr Barrett says”, namely, there were pre-existing degenerative changes, however, even though the plaintiff did not see a doctor immediately, that did not mean that there were not some symptoms. He referred to the MRI scan of the neck as proof of a congenital predisposition to injury.
Dr Barrett referred to the video surveillance evidence as confirming that the plaintiff had returned to normal activities, however, Dr Giblin, having viewed the videos, did not see anything in them which was “particularly uncomfortable with my opinions”.
Dr Barrett stated:

“He has recovered from the car accident and any changes now would be attributable to constitutional factors and not the car accident.
My argument is that he would have had these changes in his life irrespective of the car accident. It is just a fact of life. I have got neck pain. You have neck pain. Eighty per cent of the community has intermittent neck pain.”

Dr Giblin stated:

“I agree with that, but I still believe that he had a soft tissue injury, minor in extent, from the time of the motor vehicle accident. I would expect him to have some occasional ongoing symptoms, which would be very difficult to dissect from normal age-related considerations.”

Dr Giblin went on to state:

“I think the radiological changes are constitutional in nature. And that most of the percentage of his symptoms are constitutional in nature, but I believe that there is a small contributing component from the accident.”

Dr Barrett disagreed, saying that any effect of the accident had now ceased. Thus, they did not agree on causation.

Cross-examination of the Orthopaedic specialists

Given some technological constraints under which the court was operating, rather than give joint evidence, Dr Barrett and Dr Giblin were cross-examined separately by audio link.
Dr Barrett was cross-examined about the history of mechanism of the accident in which the plaintiff told him his bike was moved five metres as a result of the impact with the defendant’s vehicle. He conceded that would be from the defendant’s vehicle. He conceded that would be a significant shunt if the bike had its brake on prior to impact. Dr Barrett was challenged as to his description that the accident was “a minor one”. He explained that his explanation was from an orthopaedic stand point, namely, that the accident was minor in that the plaintiff did not require immediate medical attention. He disagreed that some people who have very significant injuries do not seek immediate treatment.

Dr Barrett conceded that at his first examination, the plaintiff had told him that he had bought another bike, but very rarely rides it, which meant, “hardly at all”. He went on to state that “rarely” meant “once a month, something like that”.
Dr Barrett was cross-examined on the MRI scans of 8 May 2018 and 19 September 2018. He described the report of 8 May 2018, which revealed the presence of tendinopathy in the left shoulder, as a normal report. He further agreed that for such a report a percentage of people with that tendinopathy present would have symptoms and a percentage would not have symptoms. He described the MRI of the cervical spine in September 2018 as being normal, “apart from some minor spondylosis”.
Dr Barrett gave evidence that he had not seen the MRI of 2 October 2019. When asked to assume the detail of the report, he agreed that it was not a normal study.
Dr Barrett gave evidence that the degenerative changes demonstrated on the MRI scan were common for a proportion of the community, some of whom would have symptoms and some of whom would not. He was asked:

“Q: And so your hypothesis is, is it, that it was merely coincidental that he began to experience symptoms after this motor vehicle accident?
A: You have to consider the natural history of an injury of his nature. If we go back to the contemporaneous evidence, at the time of the accident, if he had a significant injury to his neck he would know about it. He would have gone to the doctor immediately or he would have been taken in an ambulance to the hospital.
He didn’t seek medical attention less than 10 days later. Possibly 12, I’m not quite sure. And the treatment that he had then was relatively nil in that he didn’t even have investigations of his neck until nine months following the car accident, which would suggest that the car accident was of a relatively minor nature. The natural history of soft tissue injury of this nature is to improve within a matter of days or a week or two at the most. It doesn’t result in long‑term damage to the neck.”

He was then asked:

“Q: But, in the absence of symptoms being experienced in those degenerative changes before the accident, if symptoms come on after the accident, the accident is likely to be the cause of those symptoms whether it’s done anything to the underlying degenerative change?
A: That’s an illogical argument. If you were to scan one hundred 40 year olds in the community, many of them would have degenerative changes like this. … It had no relationship to the accident.”
Q: So is your hypothesis that it’s mere coincidence that, within three weeks of this accident, Mr Swinfield was complaining to a doctor of pain in his neck, shoulder and lower back?
A: I think he had a fair bit to gain from it – that’s why he was complaining of it.”

In respect of Dr Giblin’s opinion, Dr Barrett was asked as follows:

“Q: You’ve understood from your meeting with Dr Giblin that Dr Giblin’s analysis of that was that people often delay seeking treatment in the hope that whatever is wrong with them will get better spontaneously. Did you understand that to be Dr Giblin’s opinion?
A: Yes that’s right.
Q: Is that an opinion you don’t accept?
A: I broadly agree with that opinion, but if someone has a significant injury to their neck, they’re very likely to have contacted someone much, much earlier than 10 days after.”

Dr Barrett also gave this evidence:

“Q: You said that you believe his continuing symptoms are due to a combination of factors. His degenerative changes and pain behaviour. Were there any other factors you thought that his symptoms were due to?
A: Possibly secondary gain.
Q: What is different from pain behaviour?
A: No, okay, included in that, yes.”

Dr Giblin was also cross-examined. He agreed that he took the mechanism of injury into account in forming his opinion. He also agreed that the history of the impact was an important basis for his conclusions. He agreed that a different history of no damage to the tail light of the motorcycle in a collision of no greater than 5 to 10 kph, with the motorcycle being shunted not more than half to one metre at most, and the plaintiff not being dislodged from the bike, would be a significantly different history and constitute a lighter collision. Dr Giblin was questioned about the difficulties the plaintiff told him he was having. He was then asked:

“Q: In any event, the fact that he told you that he had severe difficulties in terms of those matters which you have just identified, was consistent with the severity of the accident as he described it to you, was it not?
A: Not entirely.
Q: Why do you say that doctor?
A: I was recording what I was being advised by him. I didn’t necessarily agree in the entirety of his formulations.
Q: I see, and in what ways, may I ask, did you not agree?
A: I thought that there may have been some degree of embellishment.”

Dr Giblin was asked about his opinion that the injuries were causally related to the accident. He was asked:

“Q: And obviously the accident was of much less a severity, you would be less confident in the opinion you have set out, under the heading ‘Diagnosis’, is that correct?
A: No, that is not strictly correct. But it is a factor.
Q: Alright. And the injuries to which you refer generally seem to be soft tissue injuries, with some radiation of pain, is that right?
A: Yes, yes.
Q: And the normal progression for such injuries is that they resolve over time, do they not?
A: Yes, yes.”

Dr Giblin went on to state that he had expressed an anticipated deterioration of the plaintiff’s injuries based on “a medically based intuition”.
Dr Giblin was cross-examined about his agreement in the joint report to Dr Barrett’s opinion that any changes to the plaintiff’s spine was attributable to constitutional factors and not the car accident. He agreed with that, but went on to give evidence that he would expect the plaintiff to have some occasional ongoing symptoms. He was asked:

“Q: And you wouldn’t expect those occasional ongoing symptoms to cause him to have any difficulties carrying out work, would you?
A: Not greatly, only – only excessive labouring work.
Q: Thank you. And the symptoms that he’s got, you said would be difficult to dissect from normal age related considerations. Is that right?
A: That’s correct.
Q: So in general population of people of his age, it’s quite possible that he would have such symptoms, even if he’d not been involved in this motorbike accident? That is, he may have developed such symptoms naturally?
A: A little bit unusual for his age … in another 10 or 15 years, absolutely. Bit unusual for his age, unless there was some underlying problem.”

Dr Giblin was then asked of his characterisation of the plaintiff in the surveillance footage as having the ability to move his cervical and lumbar spine in a “smooth flowing fashion”, not being given that history by the plaintiff. He was asked:

“Q: Similarly, in relation to his cervical spine, your comment that he had a “smooth flowing fashion” in his cervical spine, was not consistent with the history he had given you, when you examined him, was it?
A: It is consistent with his underlying complaints and pathology. Because it’s episodic in nature.”

The plaintiff’s submissions

The plaintiff relied on a written outline of submissions which set out primary facts established by the plaintiff’s evidence as to how the collision occurred. The plaintiff had pulled up in the middle lane of three behind a vehicle and was stationary, with the red light facing him. He was stationary for 30 seconds and then heard a skid and looked in his mirrors and saw a truck. He heard a heavy screeching sound and there was a lot of shunting. His motorcycle shunted forward and the plaintiff was flung back and hit his head against the truck. He then fell forward and continued to be shunted for a distance of three to five metres forward. The plaintiff attempted to hold the bike up and when the truck stopped, the bike was left at a 45 degree angle with the front wheel sideways on the ground. There was damage to the rear bumper bar of the motorbike which was assessed by the insurer as a write‑off.
The plaintiff submitted that the defendant had failed to keep a proper lookout, failed to steer, manage and control his vehicle, and had then collided with the plaintiff’s vehicle. The plaintiff submitted the defendant drove an excessive speed in the circumstances and based on a conversation he had with the defendant following the collision, it was submitted that the defendant said he did not see the plaintiff. In all the circumstances, a person who managed his or her motor vehicle with reasonable care would not have collided with the plaintiff’s motorbike and therefore the defendant was negligent. It was submitted that there was no contributory negligence because the plaintiff was in a stationary position at the traffic lights. He had no warning of the collision and could not have avoided it. At no time did the defendant accuse the plaintiff of changing lanes in front of him.
The plaintiff’s written outline then set out the plaintiff’s work history as a patient support assistant at Gosford Hospital for a period of nine years prior to the accident. It was a physically demanding role and the plaintiff had intended to stay at the hospital until retirement.
The plaintiff submitted briefly that care and assistance was rendered to him following the accident by his then partner. They had separated and she had moved out, but after a period of time, had moved back in and continued to provide domestic assistance to him.
The plaintiff’s written submissions summarised the medical evidence as establishing that the plaintiff suffered injuries to his cervical spine, left shoulder and back. The injuries were soft tissue injuries with referred symptoms from his neck to his left arm and from his lower back to his left leg. It was submitted that the plaintiff remained permanently unfit for his pre‑injury work. Further, the plaintiff had suffered shock at the accident scene and had suffered ongoing psychological symptoms, first from the injuries, and secondly from being unable to work.
The plaintiff’s written outline described the surveillance evidence from the defendant as covering 10 different days in a period from 28 July 2018 to 18 August 2019. The plaintiff rode his motorbike cautiously on three of those days on local roads within the Gosford area, and on some occasions his flatmate rode pillion on the motorbike, however, she was a small and slim woman. The video evidence also depicted the plaintiff sitting on his balcony, cleaning his balcony with a broom, travelling in a passenger seat in a car, carrying some shopping bags on two days, and at a hotel with his flatmate eating food in an outdoor area. It was submitted that the medical evidence from the plaintiff’s experts was that the film was consistent with their conclusions about the plaintiff’s injuries and impairments. It was further submitted there was no relationship between what was seen on the surveillance and the nature of the work duties the plaintiff was performing at the time of this accident.
The plaintiff submitted that in respect of the joint report of the conclave held on 17 February 2020, it appeared to be common ground between Dr Barrett and Dr Giblin that the plaintiff suffers congenital spinal canal stenosis, which makes him susceptible to more pronounced consequences from insult to the spine. There was no suggestion that the degenerative changes depicted on imaging were producing any symptoms before the accident. Dr Barrett’s thesis was that those changes would have been producing symptoms in any event, and it was submitted that thesis was advanced with knowledge of the surveillance evidence.
It was submitted that Dr Giblin’s evidence should be preferred because Dr Barrett did not address the radiological evidence demonstrating the damage from the accident, namely, the MRI scan on 2 October 2019. He had therefore not taken into account all of the evidence available. Dr Giblin, on the other hand, accepted both the pre-existing condition and the recent injury in a balanced way and assessed the appropriate apportionment of each.
It was submitted that it was not clear from the surveillance film whether the plaintiff was able to conduct similar activities on a consistent basis. In any event, the activities shown on the surveillance film did not relevantly correspond with the plaintiff’s work.
In his oral submissions, learned Senior Counsel for the plaintiff noted that it was not in dispute that the defendant accepted a collision occurred between the front of the defendant’s vehicle and the rear of the plaintiff’s motorcycle with sufficient force to deflate the rear tyre of the motorcycle and cause it damage. The objective evidence as to that damage, it was submitted, rendered the defendant’s account of the accident implausible.
It was submitted that the defendant’s case as put in cross-examination of the plaintiff, was a different case to the evidence given by the defendant himself. It was always the plaintiff’s case that the point of impact of the vehicles occurred towards the middle of the defendant’s truck, as shown on the photograph Ex B. The defendant gave evidence to the contrary saying it was towards the front of the truck and was never asked about Ex B, giving rise to an inference that his evidence would not have assisted his case, relying on Commercial Union Assurance v Ferrcom (1991) 22 NSWLR 389. The court would therefore accept the plaintiff’s evidence as to how the collision occurred. This further allowed the court to evaluate the probabilities of other facts on the evidence. The first concerned the issue of whether, prior to the accident, the plaintiff had been “lane filtering”, or riding between the middle and right lanes. It was submitted that there was significant variance to the cross‑examination of the plaintiff and what the defendant actually said in evidence, as outlined above. That included evidence the defendant gave when asked whether the bike was moving when he collided with it, i.e. “It was – yes, started moving”. Counsel asked rhetorically, “Why would the defendant say ‘started’ if the vehicle had not been stationary?”. It was submitted that this informed the probabilities that led to a finding that the defendant’s evidence was dissembling, in that the defendant sought to suggest that his truck stopped instantaneously, which it was submitted was improbable. Secondly, the defendant’s assertion that the bike did not move was demonstrably wrong. Thirdly, the defendant’s contention that the motorcycle was on the white lines very shortly before the accident was inconsistent with the evidence.
It was submitted that the defendant’s version would of necessity involve the proposition that the motorcycle was moving across the defendant’s lane. It was submitted there were two problems with that sequence. First, one would expect the motorcycle to be knocked sideways, not in the direction of travel. Secondly, and crucially, the defendant would have no time in which to react, but somehow the motorcycle got to the middle of the truck where the collision occurred. The defendant’s account of the events therefore became implausible.
It was submitted that by the defendant saying, “Where did you come from?”, when he got out of the truck, was consistent entirely with the plaintiff’s version of what occurred. It was submitted that whilst that may have been capable of innocent interpretation, it was more likely that the defendant did not want to accept responsibility for the accident.
The plaintiff submitted that the defendant was concerned to have the motorcycle to the right-hand side of his vehicle because it fitted with his description of the accident.
The plaintiff submitted that the evidence of the plaintiff as to the circumstances of the accident and the damage to the motorcycle was capable of leading the court comfortably to a conclusion that the accident was of sufficient force to cause the plaintiff physical injury.
Learned Senior Counsel submitted that the court would place no weight on the evidence of Constable Luck as to the delay in reporting the matter to the police, or the out of court statements made by the plaintiff as recorded by her in the COPS event document. Counsel asked rhetorically, “Why was this police officer so interested in matters of no concern to her at all?” and postulated that it may have arisen from criticism made or inferred of the police for failing to take the plaintiff’s report of the accident in the first place. In any event, the conversation that took place was characterised as being “innocuous”, and the police had sought to place a pejorative interpretation on it.
The plaintiff also submitted that the defendant’s reliance, through Dr Barrett, of the plaintiff’s delay in seeking treatment, was a matter that accorded with experience and common sense, namely, that people in many cases do not run off to the doctor as soon as they can. It was submitted that 10 days here or there did not matter, particularly where the plaintiff had a strong continuous work history in a job that he expected to do until retirement. It was submitted that it was inherently unlikely that the plaintiff, who had worked continuously in the job, would not just walk away from the job on the off chance that he might have a case against the defendant.
With respect to the video surveillance evidence, the plaintiff submitted that the defendant undertook 91.5 hours of surveillance which rendered video evidence comprising 2 hours and 13 minutes, spread out over 13 days, over a period of eight months. Thus, for example, the motorcycle riding that took place equated to riding the plaintiff’s bike for between 20 and 30 minutes a months on average.
With respect to the activities of the plaintiff other than motorcycle riding depicted in the surveillance evidence, it was submitted that the pattern of the plaintiff having good days and bad days would accord with the pattern of the surveillance. Further, the plaintiff’s ability to lift his arm above his shoulder, notwithstanding his evidence he could not do so, as depicted in the surveillance evidence, would not directly negate an incapacity for work. When properly analysed it was submitted that the video evidence did not say very much at all about the two substantive issues on damages, namely, economic loss and domestic assistance. It was conceded that the plaintiff’s claim for domestic assistance was weak, however, his claim for economic loss was strong and were in part supported by the reports of Dr Hall and Mr Hook, referred to above.
It was submitted that the plaintiff’s pre-injury work required heavy lifting and was generally relatively heavy work. Given the restrictions identified by Dr Hall which should be placed on him, it was submitted he would be unable to return to such work.
In respect of the question of causation, Counsel referred to s 5E of the Civil Liability Act 2002 (NSW) (“CLA”) which provides that the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. The plaintiff submitted that there was no hint of any pre‑existing complaint of pain in any part of the plaintiff’s body. Following the motorcycle accident, the plaintiff sought treatment within 10 days and within four days he had stopped a job he had been doing for nine years. It was submitted that Dr Barrett’s opinion was essentially one of coincidence, namely, that the onset of symptoms in the plaintiff so relatively close to the accident, based on congenital pre-existing degenerative changes, would be a “coincidence beyond all coincidences”. Further, Dr Barrett offered no scientific or other explanation for how that would occur within such a short space of time. On that basis, it did not pass the test in Purkess v Crittenden (1965) 114 CLR 164. It was submitted that the onus was on the defendant to disentangle any symptoms due to degenerative changes, however, Dr Barrett had not set out any reasons based on medical science for his hypothesis that the plaintiff would have recovered within weeks or months. In fact, Dr Barrett first examined the plaintiff some 10 months after the accident where he set out his diagnosis of soft tissue injuries to the neck and back as being wholly attributable to the motorcycle accident. Further, Dr Barrett had not had access to the MRI of the cervical spine taken on 2 October 2019. It was submitted that Dr Barrett did not suggest the difference between the May 2018 and October 2019 radiological studies was enough time to explain the difference between the two MRI’s. However, given the continuity in symptoms from the accident to the present time, there was no evidence to indicate at what point the degenerative changes themselves became the cause of the plaintiff’s pain. Dr Barrett gave no scientific or other explanation, but merely asserted that the plaintiff would have got better.

It was submitted that Dr Giblin was never challenged to suggest that the accident did not cause the plaintiff’s symptoms.
The plaintiff submitted there could no debate as to the existence of the plaintiff’s symptoms following the accident and that they have impacted on his work capacity. That incapacity for work sounds in economic loss. On the whole of the medical evidence, it was submitted that the plaintiff was a candidate for retraining. However, there was a significant proven future incapacity which the plaintiff conceded may not be total, but remained significant and would require retraining in order to fit the plaintiff for some other occupation which did not prey upon the problems which have been identified in the evidence for him to work.
Learned Senior Counsel referred to the plaintiff’s evidence as to his need for domestic assistance. On the question of contributory negligence, on the basis of the facts contended for by the plaintiff, if the court held that the plaintiff was stationary at the traffic lights, there could be no deduction for contributory negligence.
The plaintiff relied on the following schedule of damages:

Non Economic loss

Nil

Past Economic Loss

98 weeks x $900 net per week

$ 88,200.00

Future Economic Loss

$900 net per week x 783 x 85%

$598,995.00

Past Loss of Superannuation (11%)

$ 9,702.00

Future Loss of Superannuation (13%)

$ 77,869.00

Past Out of Pocket Expenses

$ 19,447.00

Future Out of Pocket Expenses

$ 30,000.00

Past Care

$27 per hour x 8 hours x 30 weeks

$ 6,480.00

Future Care

$40 per hour x 6 hours x 938.2

$225,168.00

Total

Plus costs

$1,046,033.00

The defendant’s submissions

The defendant relied on a detailed and thorough written outline of submissions. Under the heading, “The mechanism of the accident”, the defendant set out the plaintiff’s evidence concerning the collision, as outlined above. The defendant then set out the various accounts given by the plaintiff to Dr Giblin, Dr Glancey, Dr Synnott, and on his claim form, to highlight omissions made by the plaintiff as to the motorcycle rearing up in the air and his helmet hitting the front of the truck.
The defendant submitted that:

“There is a complete divergence as to the mechanism and severity of the collision. The burden rests with the plaintiff to satisfy the court that his version is correct. If he fails to do so in respect of the cause of the collision, then he must lose on liability. If he fails to do so in respect of its severity, then it undermines his case in respect of the mechanism, sequelae and severity of the injuries that he maintains he has suffered.”

This is the nub of the defendant’s case.

The defendant submitted that it was implausible that the defendant driving a truck 200 metres prior to a red traffic control light would only see and react to the traffic in front of him at such a late stage so as to collide with the plaintiff’s motorcycle. It was further implausible that that motorcycle would rear up, with its front wheel in the air for at least 10 seconds, while his head was flung back against the truck.
The defendant submitted that the plaintiff’s version of the accident appears to have been embellished, and the plaintiff was shown not to have an entirely accurate recollection of the events and injuries that he suffered.
The defendant’s submission highlighted that the plaintiff only attended Dr Rubio on the advice of his solicitor on 12 September 2017, and did not consult “his usual medical practitioner”. That was a medical practice in Wyoming which he had attended for an injury to his elbow that had put him off work for two weeks, 13 years prior to the accident. However, he returned to that same medical centre on 16 November 2017 with symptoms of the flu, but made no mention of the subject accident or injuries suffered by him. The clinical notes recorded, “Nil significant medical injuries”. The reason given by the plaintiff for not going to the medical centre was that it did not have any “CTP doctors or people that do the claims”. He had gained that information from the practice website.
The defendant’s submissions also highlighted the plaintiff’s attempt to report the matter to police, and the conversation that took place on the phone with Senior Constable Luck. It was submitted that the veracity of her evidence was not challenged, and that the plaintiff’s responses to her enquiries were remarkable. It was submitted that “it beggars belief” that if the plaintiff had suffered severe pain and psychological distress, he could not tell the officer what injuries he had suffered a few days after the accident.
The defendant sought to impugn the plaintiff’s credit with respect to the evidence he gave, first, that he had not taken a pillion passenger on his motorcycle since the accident, and secondly, in August 2018 he told the psychologist, Ms Glancey, that he suffered anxiety when riding, whereas the surveillance evidence showed him riding a motorcycle on 1 August 2019 with a pillion passenger. He had also told Dr Smith in December 2018 that he was nervous riding a motorcycle and maintained that this was still the case.
The defendant noted the plaintiff’s concession that riding a motorcycle requires a high degree of concentration and “a considerable amount of physical effort in terms of keeping the bike upright and riding it”. The video surveillance evidence also showed the plaintiff using his left and right arms sweeping the top of the balcony and shaking out a red blanket in his home. Further, despite giving evidence that he was unable to return to his regular swimming, Dr Lim recorded on 5 December 2017, “swimming helping”. It was submitted the plaintiff attempted to minimise that discrepancy by stating that he was using a hydro-therapy pool.
The defendant’s written submissions summarised the findings of the medical experts it relied on as set out above, including the conclave report which identified the divergence of opinion between Dr Barrett and Dr Giblin. With respect to the plaintiff’s claim for domestic assistance, the defendant highlighted the paucity of evidence concerning that aspect of the plaintiff’s claim. With respect to his claim for diminished earning capacity, the defendant submitted that the plaintiff never tried to obtain any other work since the time of the accident, and gave evidence that he did not know if he could be a motorcycle courier.
The defendant submitted that the court should approach the plaintiff’s evidence with a degree of scepticism, having regard to the issues of credit outlined above. With respect to damages, the doctors and the court had to rely on opinions which were reliant in large part upon what the plaintiff had said. His physical injuries were soft tissue in nature and therefore not significant and likely to have resolved in the short term. Further, the court would not accept that he had suffered any significant psychological sequelae arising out of the accident. It was submitted the plaintiff was not entitled to damages for economic loss beyond more than a few days after the accident. Notwithstanding the plaintiff’s out of pocket expenses amounted to $19,447, whilst that amount was “mathematically agreed”, the defendant submitted it was not liable for them other than the cost of “some small amounts of analgesia”. The defendant submitted there should be no award of damages for future treatment expenses.
In his oral submissions, Learned Senior Counsel for the defendant highlighted the clear distinction between the plaintiff’s evidence as to what occurred and the defendant’s evidence about the accident. It was submitted that if the court accepts the defendant’s evidence then inferentially, the plaintiff’s motorcycle had darted in front of the defendant’s vehicle immediately prior to the collision. It was submitted that if the plaintiff’s evidence was accepted, then the defendant’s breach of duty was established, however, if the court accepted the defendant’s evidence, the plaintiff would not succeed on breach of duty of care. It was submitted the defendant had no reason to not tell the truth, as opposed to the plaintiff who had much to gain from the proceedings.
It was submitted that the evidence concerning the defendant having a previous charge of using a mobile phone whilst driving, whilst relevant to his credit, was not relevant to a determination as to what occurred. It was submitted that that evidence demonstrated that the defendant was not trying to lie, and should not detract from his “clear and consistent evidence as to how the accident occurred”.
By comparison, it was submitted that the plaintiff’s evidence was replete with inconsistency. It was submitted that it was –

“Hard to understand how the defendant could have driven his truck, from what the evidence discloses, from some hundreds of metres on a straight road, with an unobstructed view to approach a red traffic light and not observe the plaintiff’s motorcycle behind vehicles stopped at the red light.”

Learned Senior Counsel rehearsed the defendant’s written submissions in respect of the failure of the plaintiff to seek medical attention until he saw Dr Rubio on 12 September 2017, and the evidence of Senior Constable Luck. In relation to her evidence, the plaintiff’s inability to provide details of his injuries was characterised as being “literally unbelievable”. It was submitted that the plaintiff had sought to mislead the court as to whether he suffered any, or any significant injury, in the same way he sought to mislead the police officer.
In answer to a query from the court as to whether the defendant was alleging fraud on the part of the plaintiff, Senior Counsel for the defendant responded:

“We don’t suggest your Honour make a finding of fraud. We suggest that your Honour make a finding that his evidence is unreliable and cannot be accepted.”

The defendant referred to Simon v NRMA Insurance Ltd [1991] NSWCA 247, a case concerning an insurance claim on an allegedly stolen motor vehicle.

The defendant rehearsed his submissions on the plaintiff’s choice of GP and the evidence concerning his attendance at the Wyoming Medical Centre. It was submitted that the plaintiff’s explanation was really an attempt to evade the obvious facts that he sought no treatment for two weeks, that he saw a solicitor before seeking the treatment, and that solicitor suggested he see “different doctors for whatever reasons, but presumably because he would get a more sympathetic report”.
The defendant also rehearsed his submissions in respect of the surveillance material.
Learned Senior Counsel again rehearsed his submissions in respect of the minor damage caused to the plaintiff’s motorcycle and submitted that the court “would not accept the plaintiff’s evidence on critical issues in this case unless the evidence is corroborated from alternative and reliable sources”.
Senior Counsel also referred to the report of Ms Glancey relied on by the defendant, but which was obtained by the plaintiff’s solicitors. It was clear that the psychologist seem to have been unimpressed with the plaintiff having seen the surveillance material.
Senior Counsel also rehearsed his submissions in relation to the joint report of Dr Giblin and Dr Barrett. It was submitted that there had been significant embellishment by the plaintiff in his evidence on medical issues and the court would not accept the plaintiff as a witness of truth where his evidence contradicted that of the defendant.
On the issue of contributory negligence, the defendant submitted that if breach of duty of care was established, the court would still accept that the plaintiff came from behind the defendant’s vehicle and moved in front of him, leaving sufficient time for the defendant to stop, but that he failed to do so. It was submitted, “Given the disparities in the evidence, but given what the defendant says as well, the level of contributory negligence would be very high”. It was submitted that “it is the darting in front that is the major cause of this accident”, and that the appropriate apportionment would be 70 to 80%, meaning a percentage reduction in the plaintiff’s damages.
Senior Counsel for the defendant rehearsed his submissions in respect of the divergence of opinion between Dr Barrett and Dr Giblin, submitting that the court would accept the opinion of Dr Barrett that any pain the plaintiff now has is attributable to constitutional factors and not the car accident, and that the plaintiff would have recovered from his injuries in the weeks or months following the accident.
The defendant acknowledged that the principle in Purkess v Crittenden, supra, meant it was the defendant’s onus to show the pre-existing conditions had a role to play, but in this case the defendant relied, not only on Dr Barrett’s opinion, but that of Dr Giblin and also Dr Low. Pursuant to s 5E of the CLA, the onus remained on the plaintiff to prove all matters relating to causation.
The defendant then rehearsed his submissions on damages set out above, and submitted that the plaintiff had not crossed the threshold in s 141B of MACA to establish an entitlement for damages for domestic assistance in the past and was further not entitled to an award for such damages for the future on the basis of need.

Determination – did the defendant breach his duty of care to the plaintiff?

The determination of this issue is dependent upon the factual findings that may be derived from the evidence, bearing in mind that the onus is on the plaintiff to prove his case on the balance of probabilities. The plaintiff’s evidence as to how the collision occurred, as set out in [7] above, does not accord with the defendant’s evidence, set out at [30] and following. Each parties’ evidence therefore must be assessed as against any objective evidence available.
The defendant’s case was opened on the basis that the plaintiff was “lane filtering, that is to say, riding his motorcycle between vehicles and then darting in front of the defendant’s vehicle, not giving the defendant, who was just then accelerating away from the lights, time to brake. The accident was caused by the actions of the plaintiff”.
That opening was consistent with the defendant’s cross-examination of the plaintiff as to the circumstance of the accident as set out in [18] above, in which it was suggested to the plaintiff that the accident was caused by darting in front of the truck, not giving the defendant time to stop, a proposition disavowed by the plaintiff.
When the defendant gave evidence, however, he gave no evidence of the plaintiff being involved in “lane filtering”. Rather, his evidence, as outlined in [31] above, was that as he approached the intersection, the plaintiff’s motorbike came alongside his vehicle. He gave evidence that the motorbike was in the “middle”, meaning, towards the middle of his vehicle, and as the lights went green, he put his truck into gear to take off and “before I knew it, I had collided with the motorbike”. When that occurred, he placed the motorbike on the white line, meaning, the broken white line between his lane and the outside lane.
The evidence of the defendant is inconsistent with the defendant’s case as put to the plaintiff, and also inconsistent with the only objective evidence, namely, the damage to the bumper bar of the defendant’s vehicle shown in Ex B, which was towards the middle of his vehicle.
I am comfortably satisfied that the plaintiff had ridden his motorcycle so as to overtake the defendant’s vehicle and to pull into the middle of the middle lane, behind a vehicle or vehicles which were stationary, with a red light facing them. I am satisfied that the plaintiff’s motorcycle came to a stationary position and that the defendant, as he approached the intersection whilst slowing his vehicle, but without stopping, failed to observe the plaintiff stopped in the middle of the lane in front of him. As the lights changed to green, I find that the plaintiff commenced to move away from a stationary position, but was struck by the defendant’s vehicle causing the plaintiff’s rear wheel to be deflated and damaged, and forcing the motorbike in a forward direction so as to cause the front wheel to rise up from the ground. I find that the plaintiff’s body was forced backwards as a result of that collision and that his helmet came into collision with the front of the defendant’s vehicle. I further find that the plaintiff managed to remain on the vehicle, but he moved a short distance in front of the defendant’s truck.
I am also satisfied on the balance of probabilities that following the accident, a conversation took place where the plaintiff asked the defendant what happened, to which the defendant replied, “I just didn’t see you”.
Further, as the defendant accepted in cross-examination he said, or might have said to the plaintiff, “Where did you come from?”, gives rise to a rational inference that the defendant did not see the plaintiff prior to colliding with him. That is confirmed by the defendant’s evidence at [38] above, namely:

“Q: You asked him where he came from because you didn’t see him before the collision, isn’t that right?
A: I did see him before the collision, but I didn’t see him, that’s why I had the collision with him, then he appeared in front of me the way he did.”

I find that the defendant’s vehicle was travelling at a relatively low speed at between 5 and 10 kph at the time of the collision, but that it collided with the plaintiff’s vehicle with sufficient force both to cause the damage to the bike referred to, and to cause the flexion and extension of the plaintiff’s torso and cervical spine.
While s 5B and 5C of the CLA apply to the determination of whether there was a breach of duty of care, it is well established that in motor vehicle accident claims that determination is an evaluative one, dependent on factual findings. The risk of harm is clearly significant and failing to see a vehicle stationary in front of you at an intersection controlled by traffic lights, and failing to stop his vehicle so as to avoid a collision with that vehicle, clearly bespeaks a breach of the defendant’s duty of care.
The defendant disavowed that he was contending that the plaintiff’s claim was fraudulent. Rather, the defendant’s case was that the plaintiff’s evidence could not be accepted because he embellished details of the accident and the severity of the injuries suffered by him. The defendant’s case was therefore the plaintiff had not shifted the onus of proof on him to prove his case on the balance of probabilities. I reject those submissions for the following reasons. First, the plaintiff gave evidence of the circumstances concerning the accident without embellishment of any kind, and for the reasons set out above, I preferred his evidence as to how the accident occurred to that of the defendant. Nor do I find that the fact that the plaintiff waited 10 days to seek medical treatment, and then accepted the advice of his solicitor in doing so, is a matter that impugns his credit. Rather, the short delay in seeking treatment was consistent with the nature of the soft tissue injuries that he sustained. Further, the fact that he sought treatment for the flu at the Wyoming Medical Centre several months after the accident, and failed to mention the motorcycle accident, is of itself a matter of no great moment.
The defendant further relied on a number of different accounts recorded by doctors as to the mechanism of the plaintiff’s injury, as a basis for attacking the plaintiff’s credit. I do not find that the various doctors have recorded variations of the history of the mechanism of injury as to how this rear-end accident occurred. Despite a number of omissions, the history recorded was in all cases basically consistent with a rear-end collision between the defendant’s vehicle and the plaintiff’s motorcycle. Nor do I find that such discrepancies mean that the plaintiff’s credit should be impugned as submitted by the defendant – see Mason v Demasi [2009] NSWCA 227 per Basten JA at [2].

The defendant relied on the evidence of Senior Constable Luck to further attack the plaintiff’s credit. That evidence arose because the police, in accordance with a policy introduced in 2017, refused to take a report from the plaintiff as to the accident, as was required by the MACA. That led to the plaintiff’s solicitor writing to the NSW Police, which in turn led to Constable Luck’s telephone conversation with the plaintiff. Her evidence about the conversation that took place, as she recorded it in the COPS system, was not challenged by the plaintiff. Rather, the detail of the plaintiff’s injuries were really a matter of no concern to the Constable and I accept the plaintiff’s submission that the conversation could be characterised as being somewhat innocuous. In any event, little weight could be placed on the evidence so as to suggest that it undermined the plaintiff’s credit on all issues.
The surveillance evidence comprised two hours and 13 minutes of video which were exposed between 10 October 2018 and 16 August 2019 on 13 occasions. The videos showed the plaintiff riding his motorcycle on a number of those occasions in the Gosford area, however, the plaintiff had disclosed to Dr Barrett on the first occasion he examined him on 28 May 2018, that he had purchased another motorcycle. Dr Barrett recorded that the plaintiff rode it “very rarely” and was “anxious about riding or even travelling in a car when near traffic lights”. The only credit point established by the video evidence of the plaintiff riding his motorcycle involved the occasions when he was seen to be providing his ex-partner, a small and slim woman, a ride as a pillion passenger, something he said he had not done. What was not shown on the video surveillance evidence, and could not be shown, was whether the plaintiff demonstrated any anxiety at any time whilst riding the motorcycle.
The plaintiff also told Dr Smith, the psychiatrist qualified by the defendant to examine him on 3 December 2018, that he had returned to riding a motorcycle, but was “nervous” when he did that. Dr Smith recorded that the plaintiff preferred to use the motorcycle for short distances only and that he preferred to drive his motor vehicle for short distances because of “anxiety”.
The video evidence was significant in that it did show the plaintiff moving freely on a number of occasions and raising his left arm above shoulder height. It also showed him sweeping a balcony, but otherwise showed the plaintiff involved in activities which were equivocal as far as his physical capacity was concerned. It does not demonstrate, for example, that the plaintiff was capable of carrying out his pre-injury work. It does not lead to a finding that the plaintiff could not be accepted as a witness of truth on all matters.
On the whole of the evidence, I am satisfied that the plaintiff has established on the balance of probabilities that the collision between the defendant’s vehicle and the plaintiff’s motorcycle occurred in accordance with the evidence given by the plaintiff. In those circumstances, and applying s 5B and 5C of the CLA, I find the defendant breached his duty of care to the plaintiff by failing to keep a proper lookout and failing to control his motor vehicle so as to brake and avoid colliding with the plaintiff’s motorcycle, which was stationary in front of him until the traffic lights turned to green.

Causation

The central issue as to causation referred to above is highlighted by the orthopaedic expert conclave report (Ex 9.13).
I am satisfied that prior to the motorcycle accident the plaintiff had no symptoms in his neck or lower back, notwithstanding that he had been doing a relatively heavy job for a period of nine years. In Watts v Rake (1960) 108 CLR 158, the High Court held that once a change in an injured plaintiff’s physical condition was satisfactorily established, the onus was then on the defendant “to exclude the operation of the accident as a contributory cause”. That decision was confirmed in Purkess v Crittenden, supra, where the court held it was insufficient for the defendant merely to suggest the plaintiff suffered from a progressive pre-existing condition, or that there was a relationship between any condition and the plaintiff’s present incapacity. Rather, the court stressed that the pre-existing condition and its future probable effects must be the subject of evidence, which, if accepted, would establish with some reasonable measure of precision, the nature and future development of the pre-existing condition. See also, Seltsam Pty Limited v Ghaleb [2005] NSWCA 208, where Ipp JA held that in discharging the evidentiary onus upon the defendant, it must produce more than a scintilla of evidence concerning the consequences of a pre-existing condition.
I accept the plaintiff’s submission that the defendant has not displaced the onus on it that arises pursuant to Purkess v Crittenden, supra, to establish, on the balance of probabilities, when it was that the trauma of the motor vehicle accident ceased causing the plaintiff’s symptoms and the constitutional nature of his degenerative spine took over, causing those symptoms. Dr Barrett’s opinions are not assisted by the fact of him attributing the plaintiff’s injuries to the motorcycle accident, 10 months after the accident, nor is it assisted by the fact that he did not have recourse to the MRI scan of the plaintiff’s cervical spine taken on 2 October 2019, which clearly included abnormal findings at C3/4 level, C4/5 level, C5/6 level and C6/7 level. For those reasons, I prefer Dr Giblin’s opinion “that while the soft tissue injuries were minor in extent, from the time of the motor vehicle accident the plaintiff had occasional ongoing symptoms which were very difficult to dissect from normal age-related considerations”. As Dr Giblin opined, “most of the percentage of his symptoms are constitutional in nature, but I believe that there is a small contributory component from the accident”.
Pursuant to s 5E of the CLA, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. Here, I am satisfied that factual causation has been made out pursuant to s 5D(1)(a), in that the negligence of the defendant was a necessary condition for the occurrence of the injury caused to the plaintiff. I am further satisfied that it is appropriate for the scope of the defendant’s liability to extend to the injuries so caused in accordance with s 5D(1)(b), and it was not submitted to the contrary by the defendant. I am therefore satisfied that the plaintiff has established causation for his injuries.

Damages

Having made those findings, I now come to assess damages.

Treatment expenses

The defendant agreed to the plaintiff incurring treatment expenses in the sum of $19,447 “mathematically”, but not as arising from injuries sustained by the plaintiff in the motor vehicle accident. The defendant’s submissions is not supported by any detailed reasons relating to any part of the total sum incurred. Having regard to my findings set out above, I allow the plaintiff’s out of pocket expenses in the sum of $19,447 as being reasonably incurred.
The only evidence before me as to the plaintiff’s need for future treatment relates to his ongoing consumption of analgesic and anti-depressant medication. For that I allow the sum of $553, so that past and future out of pocket expenses will total $20,000.

Past economic loss

It is common ground the plaintiff was earning $900 net per week and that his work involved heavy physical work involving lifting and transport of patients, repetitive bending and lifting, long periods of standing and movement within the hospital. I am satisfied that for a period of two years after the accident, the plaintiff was unable to return to that work, and indeed his employment was terminated on the basis of his physical capacity. For the period from 29 August 2017 to 28 August 2019, I therefore allow the sum of $93,600.
Thereafter, the plaintiff had a duty to mitigate his damages and has demonstrated a residual capacity for work, as demonstrated on the video surveillance evidence. Even accepting the restrictions recommended by Dr Hall, and the need for retraining as required, I find that the plaintiff had a residual capacity for unskilled work not involving heavy lifting or repetitive bending or lifting from two years following the accident but has done nothing to pursue any employment. His evidence in respect of computer literacy was unconvincing. I find that his loss of earning capacity since 29 August 2019 until 29 May 2020 should be assessed as a loss of $200 per week, amounting to $7,900. The total award for past economic loss will therefore $101,400.
There was no issue that past loss of superannuation should be calculated at 11%, and therefore I award $11,150 for that amount.

Future economic loss

I am comfortably satisfied on the balance of probabilities that the plaintiff has suffered a diminished earning capacity as a result of his intermittent, ongoing disabilities, which are or may be productive of financial loss – see Medlin v State Government Insurance Office (1995) 182 CLR 1, and Kallouf v Middis [2008] NSWCA 61 at [44] – [61]. The plaintiff’s loss is incapable of arithmetic calculation and represents a diminished capacity to earn by reason of his inability to lift heavy weights and engage in repetitive lifting and bending. Given the plaintiff’s capacity to engage in other employment upon retraining, I intend to award by way of a cushion of $50,000 representing a period of five years into the future. The award includes any amount of superannuation to which he may become entitled.

The plaintiff’s claim for domestic care

Senior Counsel for the plaintiff described this aspect of the plaintiff’s claim for damages as “weak”. In fact, there is insufficient evidence to satisfy me that the threshold in s 141B of MACA, of six hours per week for a period of six continuous months, has been met and I therefore decline to make an award for past domestic care and assistance. Further, the plaintiff has established no need for such care into the future and I decline to make an award for future care.
The total award for damages will therefore be:

Treatment expenses past and future

$20,000.00

Past economic loss

$101,400.00

Past loss of superannuation benefits

$11,150.00

Future economic loss

$50,000.00

Total

$182,550.00

Contributory Negligence

The defendant pleaded the following particulars of the plaintiff’s contributory negligence:

“(a) Failure to heed the presence of the Defendant’s vehicle and to avoid a collision with it.
(b) Failure to keep a proper look out for his own safety.
(c) Proceeding when it was not safe to do so.
(d) Driving at a speed that was excessive in the circumstances.
(e) Failure to keep his vehicle under any or any proper control.
(f) Driving in breach of the Australian Road Rules.
(g) Failure to comply with the Australian Road Rules.
(h) Failure to give way to the Defendant’s vehicle in circumstances where the Defendant had the right of way.
(i) Failure to brake to avoid colliding with the Defendant’s vehicle.
(j) Failure to steer or manoeuvre his vehicle to avoid the collision with the Defendant’s vehicle.
(k) Failure to have any or any sufficient regard for his own safety.
(l) Placing himself in a position of peril.
(m) Res Ipsa loquitur.”

Having regard to my findings made above that the plaintiff, having overtaken the defendant’s vehicle and pulled into the middle lane so as to become stationary behind a vehicle or vehicles at the intersection controlled by a red traffic light, and having found there was no evidence of the plaintiff “darting in” in front of the defendant’s vehicle so as to cause the accident, I decline to make a finding that the plaintiff contributed to his injuries by his own negligence. None of the particulars outlined by the defendant are made out on the evidence and there will therefore be no deduction or apportionment to the damages awarded to the plaintiff by way of his own contributory negligence.

Orders

I therefore make the following orders:

Verdict and judgment for the plaintiff in the sum of $182,550.00.

The defendant is to pay the plaintiff’s costs.

The exhibits are to be collected from the Civil Registry within 7 days.

Any application for a special costs order is to be made by way of a Notice of Motion with affidavit evidence in support within 28 days of today.

**********

Amendments

29 May 2020 - Paragraph numbers inserted in Table of Contents

Decision last updated: 29 May 2020

Medium Neutral Citation:	Danny Swinfield v Khudur Nasra [2020] NSWDC 250
Hearing dates:	10-11 September 2019, 11-13 May 2020
Decision date:	29 May 2020
Jurisdiction:	Civil
Before:	Mahony SC DCJ
Decision:	Verdict and judgment for the plaintiff. For orders see [214]
Catchwords:	Torts; motor vehicle accident
Legislation Cited:	Civil Liability Act 2002 (NSW) Motor Accidents Compensation Act 1999 (NSW)
Cases Cited:	Commercial Union Assurance v Ferrcom (1991) 22 NSWLR 389 Kallouf v Middis [2008] NSWCA 61 Mason v Demasi [2009] NSWCA 227 Medlin v State Government Insurance Office (1995) 182 CLR 1 Purkess v Crittenden (1965) 114 CLR 164 Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 Simon v NRMA Insurance Ltd [1991] NSWCA 247 Watts v Rake (1960) 108 CLR 158
Category:	Principal judgment
Parties:	Danny Swinfield (Plaintiff) Khudur Nasra (Defendant)
Representation:	Counsel: R Sheldon SC/Ms K Boettcher (Plaintiff) J Turnbull SC/J Sleight (Defendant) Solicitors: Brydens Lawyers Pty Limited Carroll & O’Dea Lawyers
File Number(s):	18/170533
Publication restriction:	Nil

Non Economic loss	Nil
Past Economic Loss 98 weeks x $900 net per week	$ 88,200.00
Future Economic Loss $900 net per week x 783 x 85%	$598,995.00
Past Loss of Superannuation (11%)	$ 9,702.00
Future Loss of Superannuation (13%)	$ 77,869.00
Past Out of Pocket Expenses	$ 19,447.00
Future Out of Pocket Expenses	$ 30,000.00
Past Care $27 per hour x 8 hours x 30 weeks	$ 6,480.00
Future Care $40 per hour x 6 hours x 938.2	$225,168.00
Total Plus costs	$1,046,033.00

Treatment expenses past and future	$20,000.00
Past economic loss	$101,400.00
Past loss of superannuation benefits	$11,150.00
Future economic loss	$50,000.00
Total	$182,550.00