Detiuk v Prazmo - [1999] WADC 31

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
CIVIL

LOCATION: PERTH

CITATION: DETIUK -v- PRAZMO & ORS [1999] WADC 31

CORAM: WILLIAMS DCJ

HEARD: 8, 9, 10 FEBRUARY & 25, 26 JULY 1999

DELIVERED : 12 AUGUST 1999

FILE NO/S: CIV 6399 of 1993

BETWEEN: ANNA DETIUK
Plaintiff
AND
DARIUSZ PRAZMO
First Defendant
SYLVIA SADLER
Second Defendant
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Third Defendant

Catchwords:

Damages - Assessment - Personal injuries - Plaintiff a 33 year old claiming damages for injuries arising out of accidents on 24 November 1990 and 7 October 1993.

Legislation:

Nil

Result:

Plaintiff's damages assessed as nil in respect to each accident.

Representation:

Counsel:

Plaintiff:     In Person
First Defendant             :     Mr B Lawrence
Second Defendant         :     Mr B Lawrence
Third Defendant           :     Mr B Lawrence

Solicitors:

Plaintiff:     In Person
First Defendant             :     Lawrence & Howell
Second Defendant         :     Lawrence & Howell
Third Defendant           :     Lawrence & Howell

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

Nil

Case(s) also cited:

Nil

WILLIAMS DCJ: By her statement of claim the plaintiff (Detiuk) who appears in person sues the first defendant (Dariusz Prazmo) for damages arising out of an accident which occurred on 24 November 1990. Dariusz Prazmo admits liability for the accident but denies that Detiuk suffered any damages.
At the commencement of trial Detiuk made application before me to amend the statement of claim to allege that on 7 October 1993 she was a passenger in a motor vehicle which was stationary in Rokeby Road Subiaco when it was struck by a motor vehicle being driven by the second defendant (Sadler).
Mr Lawrence, counsel for Dariusz Prazmo, did not have a problem with that application to amend. Mr Lawrence informed me that he had instructions to act on behalf of Sadler and that again liability was admitted for the accident but it was denied that Detiuk suffered any damages.
Detiuk also sought to join the Insurance Commission of Western Australia as a third defendant although the pleadings do not allege anything against the third defendant. Mr Lawrence informed me that he also acted on behalf of the third defendant but that it was unnecessary for Detiuk to join the third defendant as a party. In the circumstances I propose to say nothing more about the third defendant.

Findings of fact

Detiuk was born on 27 July 1966 in Poland. In 1987 she moved to Italy with her mother, her sister and her boyfriend. She resided in Italy for 2 years and worked picking fruit and nuts and as a cleaner whilst waiting for an Australian visa.
She arrived in Australia in February 1989.
She started working part-time for her uncle in the Wanneroo markets. She worked on a Saturday, a Sunday and sometimes on a Monday if it was a long weekend. According to Krynstyna Shawinska she was employed in that position for approximately 3 months (exhibit 13).
On 24 November 1990 she was a passenger in a motor vehicle which collided with a vehicle being driven by Mr George Measel. Measel's vehicle suffered little damage and the impact was minor. That much is clear from evidence and the photographs of the two vehicles (exhibits 9 and 10). Where Detiuk has told medical practitioners that it was a severe collision I do not accept her evidence.
On 26 November 1990 Detiuk and her de facto husband Krystof Prazmo (the brother of the defendant Dariusz Prazmo), attended on Dr R T Mikosza a general practitioner in Fremantle. Detiuk complained of neck pains, pain in her trapezius muscle, lower thoracic and upper lumbar pain. No complaint was made by Detiuk to Dr Mikosza of headaches, right leg numbness, low back pain, or being hit on the head, or any vertigo, dizziness or faintness. At that time Detiuk was approximately eight months pregnant.
Detiuk attended Dr Mikosza for the second time on 3 December 1990.
On 31 December 1990 her first child was born.
On 7 February 1991 Detiuk attended on Dr Mikosza complaining of similar symptoms. On 9 May 1991 she attended on Dr Mikosza complaining of pain in her scapula and trapezius.
On 28 June 1991 Detiuk and Prazmo attended upon Dr Di Camillo a general practitioner in Balcatta for the first time. At that time Detiuk complained of headaches for the first time and mid back pain and indicated that she had jerked her head in the accident. She did not report that she struck her head. She also indicated that she was not working at the time of the accident. At that time Dr Di Camillo expected a full resolution.
On 16 October 1991 Detiuk attended upon Dr Di Camillo complaining of headaches, mid to low back pain and for the first time, fainting spells and vertigo.
In 1992 Detiuk went overseas with her 2 year old child to Italy and Poland and remained out of Australia for some 2 ‑ 3 months. It is not clear from the evidence during what period in 1992 she was overseas. She gave no evidence of attending for medical attention whilst overseas.
On 8 February 1992 she again attended on Dr Di Camillo.
On 19 March 1992 she again attended on Dr Di Camillo. At that time low back pain appeared to be causing most of the problems. It is the defendant's submission that if it is the lumbar sacral pain it is not related to the motor vehicle accident. In my view that is correct. The accident of 24 November 1990 was a very minor accident and Detiuk made no complaint of low back pain to Dr Mikosza following the accident. The first mention of the low back pain is to Dr Di Camillo on 16 October 1991 when she complained of mid to low back pain. That was almost 12 months following the accident.
On 2 April 1992 Detiuk attended upon Dr Mikosza and indicated that she was undergoing physiotherapy and complaining of neck problems.
In May 1992 she obtained a motor driver's licence.
Detiuk attended upon Dr Di Camillo on 21 May 1992, 24 August 1992, 26 October 1992 and 23 November 1992.
On 3 December 1992 a film was taken of Detiuk. That shows her walking with a pram, taking a couple of quick steps, having a normal gait and pushing a pram. She did not appear to me to be having any problems at all.
On 21 December 1992 she again attended on Dr Di Camillo.
On 12 January 1993 she attended on Professor F L Mastaglia a professor of neurology upon referral from Dr Di Camillo. She told Professor Mastaglia that her neck had resolved and her only complaints were of mid back pain, headaches, dizziness and fainting spells.
On 18 January 1993 at the request of the defendant Detiuk attended upon Dr R J Beaver an orthopaedic surgeon but the interview was aborted.
On 10 February 1993 Detiuk alleges that she had a blackout and fell over in the shower.
On 19 February 1993 Detiuk again attended upon Dr Beaver at the request of the defendant. Contrary to Dr Mikosza's records she gave a history of head injury, low back pain and leg numbness but made no complaint of an inability to work.
On 29 April 1993 Detiuk attended upon Dr Di Camillo.
On 6 May 1993 Detiuk attended upon Dr Frank Farrelly a psychiatrist. Detiuk told Dr Farrelly that the Peugot in which she was a passenger had suffered about $1000 worth of damage.
On 7 October 1993 Detiuk was involved in the second motor vehicle accident. On that occasion she was a passenger in a stationary vehicle which was struck on the open driver's door by a passing car driven by Sadler. On any account of the accident was an extremely minor incident.
On 8 October 1993 Detiuk attended upon Dr Di Camillo but did not say anything about the second motor vehicle accident.
On 4 January 1994 Detiuk attended upon Dr Di Camillo and again did not say anything about the second accident.
In January 1994 an assessor Craig Renton attended at Detiuk's residence at Unit 10, 420 Barker Road, Subiaco. Detiuk advised him that she was not physically injured in the second accident. At that point in time Detiuk had made a claim in respect of the first accident but had not made a claim in respect to the second accident.
On 18 January 1994 further film was taken of Detiuk. That showed her pushing a trolley in a brisk manner. She was seen to squat down without apparent difficulty. She appears well groomed and normally dressed and does not appear to have any problems.
On 20 January 1994 further film was taken of Detiuk. On that occasion she is seen pushing a pram. She has a normal gait. She does not appear to have any neck restrictions. She is able to bend down to the pram. She crosses the road. She appears to be moving in a normal fashion and there is no sign of restriction.
On 21 January 1994 further film is taken of Detiuk. On that occasion she is shown with a normal gait. She is able to bend down and pick up shopping. She walks upstairs in no obvious discomfort. Mr Prazmo passes her on the stairs but does not take her shopping bags from her. There is no sign of any restrictions.
On 23 February 1994 Detiuk attends upon Dr Di Camillo.
On 1 June 1994 at the instigation of Mr Prazmo to Dr Farrelly Detiuk urgently attends upon Dr K M R Grainger a neurologist. At that time Dr Grainger and Dr Farrelly are told by Mr Prazmo that he believes that Detiuk has brain damage from the fall on 10 February 1993 and that she has had trouble with dizziness and on rotation when lying since shortly after the accident of 24 November 1990. Dr Grainger is also told that Detiuk suffered no physical injury following the incident of 7 October 1993.
On 8 June 1994 Detiuk attended upon a chiropractor Mr Paul Dillon. According to Mr Dillon he had a disagreement with Mr Prazmo and Detiuk ceased treatment at the same time.
On 10 June 1994 further film was taken of Detiuk. That film shows Detiuk standing and crossing the road in no apparent discomfort.
Between June 1994 and February 1995 Detiuk travelled overseas visiting Poland, Italy and Canada with Mr Prazmo and the child. There is no evidence of her requiring medical treatment during that period of time.
In April 1995 Detiuk attended upon Dr Grainger again complaining of further episodes of shaking and dizziness.
On 28 October 1995 Detiuk again attended upon Dr Grainger complaining of persisting similar episodes including loss of control.
On 7 November 1995 Detiuk attended upon Dr Grainger. At that time she is taking Eipilim.
On 15 February 1996 further film was taken of Detiuk. It shows her getting into a vehicle without discomfort. When Dr Di Camillo saw that film he commented that his initial view that Detiuk had a minor problem was likely to be correct. He did not see her as having a major problem.
In February 1996 Detiuk attended at Sir Charles Gairdner Hospital for 24 hours. No fainting or epileptic episodes were observed. Detiuk complained of headaches.
On 1 October 1996 Dr Grainger carried out an MRI scan. No brain abnormality was shown.
On 19 December 1996 Detiuk saw Dr Knezevic at the request of the defendant.
On 10 June 1997 Detiuk attended upon Dr Grainger with Mr Prazmo alleging epileptic or fainting incidents from the time of the accident. But apart from a reference to an incident in a shop in Fremantle in the latter stages of her first pregnancy no such spells are reported until Detiuk attended upon Dr Di Camillo on 16 October 1991 for the second time.
In January 1999 Detiuk, while pregnant, allegedly had a dizzy spell at the Perth Airport. On 14 May 1999 Detiuk gave birth to her second child.

Assessment of damages

Detiuk claims damages for loss of amenities being pain and suffering and loss of enjoyment of life. She also claims for loss of earning capacity.
I am unable to accept the evidence of either Detiuk or Mr Prazmo because I did not consider either of them were witnesses of credit.
There are a number of examples in respect to Detiuk.
Detiuk in her evidence in chief gave the impression that at the time of the accident on 24 November 1990 she had been working in a vegetable market for 3 or 4 months but was too ill to return after the accident. Exhibit 13 makes it clear that she worked for approximately 3 months.
Detiuk was evasive when cross‑examined and initially would not concede that she was not working at the time of the car accident but eventually when asked about transport to and from work and other circumstances relating to her residence said she could not remember but conceded it could be that she was not working. Prazmo gave evidence as to the chronology of events and in my view there was no possibility that Detiuk was working at the time of the accident and it is almost certain that she had ceased work several months before when she stopped living with her uncle and moved in with Prazmo. Detiuk signed the claim form (exhibit 5) on 8 March 1991 indicating that she was unemployed. She also told Dr Di Camillo on 28 June 1991 that she was not working at the time of the accident.
At transcript p34 Detiuk indicated that the motor vehicle accident had caused her to fear driving "I have got a driver's licence but I am scared to drive".
Detiuk was cross‑examined about this and said she could not remember whether she had obtained her driver's licence before or after the first motor vehicle accident. She agreed that she took driver's lessons but said she could not recall from where. In my view she was being evasive. After the licence was produced and enquires made she conceded that she did not have a licence at the time of the first accident in November 1990 and that she obtained it later on. She did not in fact obtain a motor driver's licence until May 1992.
Both Detiuk and Prazmo have been at pains to suggest that they are not actually living together. It is my finding that this evidence has been given purely to improve their pension position and that on most occasions they have been living together. Prazmo even took this farce to the extreme by telling me on one occasion that he had no fixed address. Detiuk has been on a pension ever since arriving in Australia. Prazmo has been on an invalid pension since 1994.
At p67 of the transcript Detiuk claimed that some $2,000 worth of damage was done to the Peugot implying a significant accident. Dr Farrelly (exhibit 12) was told $1,000 worth of damage was done to the Peugot. In fact no repairs were carried out other than by Prazmo. A maximum of $200 was done to the other vehicle. Detiuk told Dr Mikosza (exhibit 4) that she ended up between the two front seats. In evidence she said that she was wearing a seat belt and by inference did not end up between the two front seats.
Symptoms reported to Dr Mikosza as they were occurring are quite dissimilar from those subsequently reported to Dr Di Camillo when he was consulted on 28 June 1991 and even more significantly from those reported to Mr Beaver in February 1993 and Dr Farrelly in August 1993. The dissimilarities are:
1.No headaches were reported to Dr Mikosza but were reported to Dr Di Camillo.
2.No incident of Detiuk's right leg going entirely numb within 2 days of the accident is related to Dr Mikosza but such a history was taken by Dr Farrelly and Mr Beaver.
3.In January 1993 Professor Mastaglia was told that Detiuk hit her head on the side window of the car. She repeated this assertion to Mr Beaver in February 1993 but Dr Mikosza has no record of such an event and in June 1994 when Detiuk saw Dr Grainger, presumably with the benefit of Dr Mikosza's report of 27 August 1993 such head trauma was discounted.
4.Detiuk subsequently in February 1993 told Mr Beaver "she had been suffering from blackouts which had occurred ever since the accident". No such blackouts were ever reported to Dr Mikosza or to Dr Di Camillo when she first saw him in June 1991. It was not until October 1991 that she told Dr Di Camillo of fainting spells and vertigo.
In my view there is no evidence to suggest that Detiuk's alleged fainting spells or near fainting spells or vertigo or dizziness are related to the motor vehicle accident on 24 November 1990. In fact the evidence is to the contrary.
Detiuk was referred to Professor Mastaglia by Dr Di Camillo in early 1993 and on 18 January 1993 (exhibit 7) Professor Mastaglia concluded "there is no indication of any neurological complication of the accident and it would seem that she sustained predominantly soft tissue injuries in the cervical and lumbar areas of the spine".
Detiuk originally went to see Dr Grainger in June 1994 at the request of Mr Prazmo who said that she had brain damage (exhibit 12, report of 1 June 1994). Dr Grainger saw Detiuk urgently and has seen her on several occasions for the purpose of diagnosis not for medico legal reports from that time forward until 3 February 1999.
The only comment Dr Grainger has made in any of his reports that links the fainting spell and any other problems including memory disturbance to the motor vehicle accident of 24 November 1990 is in the second last paragraph of his report of 19 April 1995 (exhibit 3) when he said "given the lack of alternative cause to date for memory disturbance the transient light headed symptoms and the EEG abnormality it would seem reasonable to attribute them to the initial accident and subsequent fall with trauma to the occiput".
With the benefit of subsequently seeing Detiuk over several years and with the benefit of further tests Dr Grainger gave very different evidence at the trial, namely:
(a)he confirmed that the MRI scan did not show any evidence of injury (transcript p74).
(b)he confirmed that the changes he saw on the EEG originally can occur in 20 per cent of the population without any previous history of trauma (transcript p74).
(c)he confirmed that on his history there is no history of any head trauma in the motor vehicle accident (transcript pp75‑76).
(d)he confirmed although originally he considered epilepsy as a possible cause and that as a result of the further investigations including 24 hour monitoring in hospital, and a trial of anti‑convulsant drugs that such spells were more likely to be psychological or fainting type occurrences (transcript p77).
(e)he also confirmed that he has not seen another patient with such a number of alleged pre‑fainting type episodes raising a psychosomatic type symptom as a real possibility (transcript p77) and he agreed that it was quite possible that she was feigning (transcript p78).
(f)he concluded that he was unable to relate falling down type incidences to the car accident (transcript p79).
(g)he dealt with his report of 19 April 1995 and indicated that his evidence had changed because he had ruled out the possibility of Detiuk suffering from any seizure (transcript p80).
(h)he ruled out the possibility of vertigo referred to in the history he took on 1 June 1994 as being related to the accident (transcript p81).
(i)he confirmed that he did not relate the fainting episode in the shower in February 1993 to the motor vehicle accident in November 1990 (transcript p82).
(j)he confirmed that by 1997 once he determined the accident was less significant than he had originally considered he resiled entirely from his earlier view (transcript p83).
In my view these are allegations that have been brought forward by Detiuk and Mr Prazmo with a desire to receive compensation in respect to these matters. There is no evidence Detiuk suffered any of these symptoms when she travelled overseas. There is no evidence of her requiring any medical treatment whilst overseas. The allegation of Detiuk suffering brain damage has been brought forward by her and Mr Prazmo with the idea of obtaining a judgment for substantial damages.
In my view the claim appears to have been pushed more by Mr Prazmo than Detiuk. When the case commenced before me in February 1999 Detiuk was in an advanced state of pregnancy and did not appear comfortable appearing in court and appeared under considerable stress. The whole proceedings seemed to be being pushed by Mr Prazmo. Detiuk has gone along with this.

As an example of the difficulty of obtaining the truth in this matter I refer to the following exchange between myself and Mr Prazmo which appears at pp160‑161 of the transcript.
"Just a moment, Mr Prazmo. When you went to give evidence, you didn't tell me what your current address is. What's your current address?‑ ‑ ‑My current address is as a status of ‑ ‑ ‑
Where do you live? ‑ ‑ ‑ On disability support pension.
No, where do you live please? ‑ ‑ ‑At the moment, I have no fixed address. Last few nights I stay with Anna Detiuk and prior as well, I am thinking to move back to 82 Wellington Street, Mosman Park. Other than that, I ‑ ‑ ‑
So you don't reside at 82 Wellington Street, Mosman Park. Is that what you're telling me? ‑ ‑ ‑ Not reside as yet or as ‑ I didn't inform ‑ ‑ ‑
Is that where Anna lives, is it? ‑ ‑ ‑ Anna live 82 Wellington Street. My address is lot 6, in Oakford Way. I have got a couple of acres of reticulated area which I'm renting and I'm growing horseradish. This is my second attempt.
I thought you said you had no fixed address? ‑ ‑ ‑ There's a shed. There's no house there and I sleep in the shed few occasions. I sleep beside the river, I sleep in the trailer, I sleep on the side of the ocean. I sleep many times in the car. I sleep many days ‑ ‑ ‑
But you don't sleep at 82 Wellington Street? ‑ ‑ ‑ Recently I have been sleeping in Anna's address in order to help her prepare the ‑ amend the writ, to arrange the subpoenas ‑ and I am disabled person.
Your occupation please? ‑ ‑ ‑ My occupation is I am a craftsman of my own desire. I can do anything. At the moment my status is disability support pension which was granted on 5 May 94."
And further and cross‑examined by counsel at p162 as follows:
Do you agree that you often attend at her house in Wellington Street, Mosman Park and help out with tasks and things that are required around the place? ‑ ‑ ‑ Well, I consider myself a legal guardian of her and I applied to guardianship and administration to be legal guardian.
Why was that? ‑ ‑ ‑ Because I believe she need assistance. I believe she's disabled. I believe she got abnormality in her spine. She got ‑ ‑ ‑
WILLIAMS DCJ:     But, Mr Prazmo, you just told me you had all those things? ‑ ‑ ‑ But she got also similar symptoms.
You told me you had all those things. Why apply to be her guardian when you're in the same position? ‑ ‑ ‑ Because I'm a man. I'm stronger. I have got the stronger way of doing things. I choose the path of taking stuff like morphine to ‑ keeps me going. She's the mother of my child and I have got no option to help her, to rescue her in a life situation which we are for 9 years or more ‑ ‑ ‑
Perhaps I interrupted unnecessarily, Mr Lawrence. I will let you regain where you were please. Sorry.
LAWRENCE, MR:     That's all right. I ‑ ‑ ‑
WILLIAMS DCJ:       All right. You applied to be her legal guardian.
LAWRENCE, MR:     Yes.
But what was wrong with her mentally that meant you needed to take charge of her affairs? ‑ ‑ ‑What was wrong with her ‑ ‑ ‑
Mentally? ‑ ‑ ‑ Mentally.
Yes. Let's assume she has got physical problems, but why did you need to take charge of her affairs for mental reasons? Why was that? ‑ ‑ ‑ Can you explain what you mean by ‑ ‑ ‑
Intellectually? ‑ ‑ ‑ Like what?
I'm asking you. I can understand you say she might have pain but was there something wrong with her head, her brain? ‑ ‑ ‑ She constantly have ‑ I witness ‑ I came to the rescue in 1993 when she fell on a concrete floor in her bedroom and I came to her rescue and this was ‑ from that incident she was constantly ‑ I notice abnormality in her behaviour. She was greatly injured. Both her brain and her spine as a whole in collapsing ‑ just imagine yourself collapsing backwards on a concrete floor with a thin layer of carpet, you know. Don't you think a person who got a brain injury suffered some kind of trauma?"
In my view Detiuk has gone along with all of this. Neither of them are to be believed.
I am not prepared to accept the evidence of Detiuk or Mr Prazmo. I am not satisfied on the balance of probabilities that Detiuk suffered any injuries arising out of either of the accidents in which she complains. Her credit and that of Mr Prazmo as a witnesses is not to be accepted and I do not accept any of the complaints that she makes to me in relation to her motor vehicle accidents.
In my view she has not satisfied me on the balance of probabilities that she suffered any injuries arising out of either of the accidents and in the circumstances I assess her damages in respect of each accident at nil.