Do Carmo v Wishaw - [2022] WADC 42

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   DO CARMO -v- WISHAW [2022] WADC 42
CORAM:   COMMISSIONER COLLINS
HEARD:   24-28 JANUARY & 18 FEBRUARY 2022 AND WRITTEN SUBMISSIONS RECEIVED ON 23 FEBRUARY & 16 & 28 MARCH 2022
DELIVERED          :   17 MAY 2022
FILE NO/S:   CIV 4283 of 2017
BETWEEN:   PETER JOSE DO CARMO
Plaintiff
AND
SUZANNE WISHAW
Defendant

Catchwords:

Personal injury - Motorbike crash - Liability admitted - Whether alleged injuries in fact caused by crash - Assessment of damages - Credibility - Turns on own facts

Legislation:

Civil Liability Act 2002 (WA)
Evidence Act 1906 (WA)
Motor Vehicle (Third Party Insurance) Act 1943 (WA)

Result:

Damages for non-pecuniary loss assessed below statutory threshold
Judgment for plaintiff for past medical and travel related to medical expenses only

Representation:

Counsel:

Plaintiff	:	Mr G J Pynt
Defendant	:	Mr D R Clyne

Solicitors:

Plaintiff	:	Not applicable
Defendant	:	Jackson McDonald

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

Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244
Allianz v Insurance Ltd v Kerr [2012] NSWCA 13
Avsar v Richwood [2019] WADC 51
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [No 6] [2019] WASC 5
Birla Nifty Pty Ltd v International Mining Industry Underwriters Ltd [2014] WASCA 180
Blundell v Musgrave (1956) 96 CLR 73
Cleary v The Insurance Commission of Western Australia [2019] WADC 29
CSR Ltd v Eddy (2005) 226 CLR 1
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Den Hoedt v Barwick [2006] WASCA 196
DM Drainage & Constructions Pty Ltd as Trustee for DM Unit Trust trading as DM Civil v Karara Mining Ltd [No 6] [2021] WASC 410
D'Souza v Barclays Building Services (WA) Pty Ltd [2020] WADC 87
East Metropolitan Health Service v Ellis (by his Next Friend Christopher Graham Ellis) [2020] WASCA 147
Evans v Braddock [2015] NSWSC 249
Girgis v Poliwka [No 6] [2019] WASC 230
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Houlahan v Pitchen [2009] WASCA 104
Hunter v Scott [1963] Qd R 77
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
Kerr v Minister for Health [2009] WASCA 32
Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298
Livingstone v Rawyards Coal Co (1880) 5 App Cas 25
McKay v Commissioner of Main Roads [No 2] [2010] WASC 153
McKay v Commissioner of Main Roads [No 3] [2010] WASC 232
Medlin v SGIC [1995] HCA 5; (1995) 182 CLR 1
Montemaggiori v Wilson [2011] WASCA 177
Nominal Defendant v Cordin [2017] NSWCA 6
Paul v Rendell (1981) 34 ALR 569
Pollock v Wellington (1996) 15 WAR 1
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208
Sharman v Evans (1977) 138 CLR 563
Shergold v Edwards [2016] WADC 150
Stanton v Insurance Commission of Western Australia [2020] WADC 10
Stojceska v Muharemovic [2017] WADC 9
Syme v Roos [2016] WADC 164
Wainwright v Barrick Gold of Australia [2014] WASCA 15
Wallace v Kam (2013) 250 CLR 375
Watts v Rake (1960) 108 CLR 158
Winiarczyk v Tsirigotis [2011] WASCA 97
Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460
Wreford v Lydle [No 3] [2021] WASCA 20

Table of Contents

A........ Overview

B........ Issues for determination

C........ The Accident on 16 February 2015

C.1..... The parties' pleadings

C.2..... Mr Do Carmo's evidence - events of 16 February 2015

C.3..... The Accident - facts not in issue

D........ What injuries did Mr Do Carmo sustain in the Accident?

D.1..... The parties' pleadings

D.2..... Injuries on 16 February 2015

D.3..... Findings as to injuries

E........ What occurred following the Accident?

F......... After the Accident - Mr Do Carmo worked and travelled

F.1...... Kerman Contracting - 17 February to 1 May 2015

F.2...... Overseas trip to Germany - 2 to 7 May 2015

F.3...... Kerman Contracting - 8 May to 11 August 2015

F.4...... Clough Projects - September 2015 to April 2016 - first stint

F.5...... Second overseas trip to Germany - May to October 2016

F.6...... Clough Projects - 28 October 2016 to 3 March 2017 - second stint

F.7...... Medical examinations April to May 2017

F.8...... Third overseas trip to Germany - May to October 2017

F.9...... Visits to medical specialists - November 2017 to February 2018

F.10.... Family arrives in Australia - medical treatments February to April 2018

F.11.... Orestruc Pty Ltd - April through to early September 2018

F.12.... APMS - 1 to 12 October 2018

F.13.... AusGroup - January 2019 to October 2019

F.14.... APMS - 15 October to 8 November 2019

F.15.... 2020 - getFresh - 3 to 5 December 2020

F.16.... Motorbike maintenance at home - 2021

F.17.... Summary of findings concerning the onset of symptoms after the Accident

G........ Expert evidence - Medical evidence

G.1..... Overview

G.2..... Dr Louie

G.3..... Dr Liddell

G.4..... Dr Fairhurst

G.5..... Dr Thompson

G.6..... Dr Hardcastle

G.7..... Dr Flahive

G.8..... Dr Sneddon

G.9..... Findings as to Mr Do Carmo's current symptoms

H........ What was Mr Do Carmo's pre-accident medical condition and lifestyle?

I.......... Credibility and approach to evidence

I.1....... Challenges to reliability and credibility

I.2....... Legal principles about documents and oral evidence

J......... Were Mr Do Carmo's injuries caused by Ms Wishaw?

J.1....... The parties' pleadings

J.2....... Causation - legal principles

J.3....... Factual findings - causation of Mr Do Carmo's injuries/symptoms

J.4....... Cause of Mr Do Carmo's injuries/symptoms - Accident to the end of 2016

J.5....... Cause of Mr Do Carmo's current injuries and symptoms

K........ Damages

K.1..... Mr Do Carmo's claim

K.2..... Legal principles

L........ Assessment of Mr Do Carmo's past and future economic loss

L.1...... The parties' pleadings

L.2...... Legal principles

L.3...... Mr Do Carmo's qualifications prior to the accident in February 2015

L.4...... Employment history prior to the accident in February 2015

L.5...... Employment history post the accident in February 2015

L.6...... Offshore pipe fitter/welder/boilermaker/QA/QC

L.7...... Evidence from employment and tax records

L.8...... Offshore work - evidence of Paul Morgan

L.9...... Findings on economic loss - generally

M....... Assessment of past medical expenses

M.1..... Overview

M.2..... Mr Do Carmo's claim

M.3..... Relevant law

M.4..... Mr Do Carmo's evidence

M.5..... Findings and assessment

M.6..... Summary

N........ Assessment of future medical expenses

N.1..... Mr Do Carmo's claim

N.2..... Relevant law

N.3..... Findings and assessment

N.4..... Summary

O........ Assessment of past and future travel expenses

O.1..... Mr Do Carmo's claim

O.2..... Relevant law

O.3..... Findings and assessment

O.4..... Summary

P......... Assessment of non-pecuniary loss

P.1...... Overview

P.2...... Mr Do Carmo's claim

P.3...... Relevant law

P.4...... Mr Do Carmo's evidence

P.5...... Findings and assessment

P.6...... Summary

Q........ Total quantum of damages

COMMISSIONER COLLINS:

A. Overview

On the afternoon of 16 February 2015, Peter Jose Do Carmo was riding his Kawasaki 750 motorbike in the right-hand lane of Queen Victoria Street, travelling north across the Fremantle traffic bridge in Fremantle, Western Australia. At the same time, Suzanne Wishaw was driving an Audi SUV in the same direction, but in the left-hand lane of Queen Victoria Street. As Mr Do Carmo was crossing the bridge, Ms Wishaw pulled out in front of him, causing him to hit her driver's door, at about a 45-degree angle (Accident).
In November 2017, Mr Do Carmo commenced an action against Ms Wishaw seeking damages for the injuries he sustained in the Accident.
Ms Wishaw has admitted liability in negligence for the Accident, but disputes that the Accident caused Mr Do Carmo any loss.
Between 24 and 28 January 2022, I presided over the trial of this action.
Mr Do Carmo gave evidence at the hearing of the matter. He also called three witnesses: Mirta Lanfer-Do Carmo, his wife of more than 20 years (whom I shall refer to as Mirta), Cameron Lorkin, a trades' assistant who worked with him at Kerman Contracting, and Paul Morgan, a work associate, who is a recruiter in the offshore labour market.
Mr Do Carmo called four medical practitioners. The first was Dr Euan Thompson, a specialist occupational and environmental physician with qualifications in assessing workers' compensation injuries. Dr Thompson saw Mr Do Carmo for medico-legal assessments on 9 January 2019 and 30 July 2021 and produced reports dated 14 January 2019 and 23 August 2021.
The second was Dr Peter Louie, Mr Do Carmo's general practitioner (GP) from April 2017. Dr Louie saw Mr Do Carmo on about 24 occasions between April 2017 and August 2021 and produced clinical notes and medical certificates for the appointments on those occasions.

The third was Dr John Liddell, a neurosurgeon. Dr Liddell saw Mr Do Carmo on two occasions in November 2017 and produced two reports addressed to Mr Do Carmo's GP, Dr Louie, dated 6 and 27 November 2017.
The fourth was Dr Andrew Fairhurst, a GP with qualifications in impairment or disability assessments in relation to workers' compensation injuries. Dr Fairhurst saw Mr Do Carmo for medico‑legal assessments on 10 May 2017, 4 August 2021 and 14 January 2022 and produced reports of the same dates.
Two medical practitioners gave evidence on behalf of Ms Wishaw. The first was Dr Philip Hardcastle, an orthopaedic surgeon. Dr Hardcastle saw Mr Do Carmo for a medico-legal assessment on 22 October 2021 and produced a report dated 9 November 2021.
The second was Dr Martyn Flahive, an occupational physician. Dr Flahive saw Mr Do Carmo for medico-legal assessments on 27 May 2020 and 20 September 2021 and produced reports of the same dates.
Ms Wishaw also relied on three reports prepared by the late Dr Douglas Sneddon, an orthopaedic surgeon. Dr Sneddon saw Mr Do Carmo for medico-legal assessments on 7 June 2018, 6 May 2020 and 29 September 2021 and produced reports dated 14 June and 22 November 2018, 20 May 2020 and 20 October 2021. Dr Sneddon's reports were tendered by consent, as Dr Sneddon has since passed away.
It was not disputed that the medical practitioners were appropriately qualified to give their respective expert opinions which are before the court in this case.
The parties tendered a bundle of medical reports and records without objection. Counsel agreed that the statements contained in those reports and records could be treated as evidence of the truth of the facts contained therein, subject to submissions as to weight and specific issues identified in cross-examination (ts 462). In addition, Mr Do Carmo's counsel submitted that while the records could be treated as an accurate record, they were not necessarily a comprehensive record, which would be the subject of submission and a question going to weight (ts 476 - ts 480).
For the reasons that follow, I have determined that Mr Do Carmo's claim is successful in part.

B. Issues for determination

The parties filed written opening and closing submissions and made oral opening and closing submissions.
In opening, counsel for Mr Do Carmo said that by reason of the Accident, Mr Do Carmo suffered an aggravation of underlying degenerative conditions of his back and neck and headaches from which he has not recovered. In fact, 'they have got worse over time' (ts 8). And later, Mr Do Carmo's counsel said that the central issue in the case was if Mr Do Carmo suffered injuries in the Accident, whether those injuries were caused or substantially contributed to by pre‑existing injuries or medical conditions or both (ts 8 - ts 9). Mr Do Carmo's counsel submitted that it was common ground that Mr Do Carmo suffered from a pre-existing degeneration of the spine at the time of the Accident. Mr Do Carmo's case was that he was asymptomatic pre-Accident. That is, the Accident caused the underlying degenerative condition to become symptomatic. In effect, but for the Accident, Mr Do Carmo would be free of neck and back pain and free of headaches (ts 9).
Counsel for Ms Wishaw submitted that Mr Do Carmo's disability or condition was not caused by the Accident, because immediately following the Accident, Mr Do Carmo did not seek any treatment, not even for cuts or abrasions. Instead, he travelled the next day to his fly in/fly out employment at Cape Preston, in the north of Western Australia, on a four weeks on/one week off roster. He did two such rotations (a total of 9 out of 10 weeks). He then flew to Germany for a week, which he spent with his family, who were residing there, before returning to Perth to work at Cape Preston, for another two rotations (a further nine weeks), before seeking medical treatment for any injuries post the Accident. That was five months post the Accident. In effect, if Mr Do Carmo was injured, any injuries he sustained were not caused by the Accident.
Very early on in his opening address to the court, Ms Wishaw's counsel made plain that the central issue in the matter involved Mr Do Carmo's credibility (ts 5). Counsel developed that submission as follows (ts 13):
I will be asking you to look closely at the evidence, all of the evidence and particularly the GP evidence as to the nature and extent of the complaints made by the plaintiff from time to time because we say they have varied significantly and so we will be focussing on that but there's a lot of credibility issues about what injuries he did suffer and the consequences of them.
(emphasis added)
Ms Wishaw's counsel also submitted that Mr Do Carmo's claim was made without 'any real objective evidence supporting an injury or disability and, in that regard, it was necessary to focus in detail on the medical evidence and on the chronology of treatment, or lack thereof', which Mr Do Carmo had undergone.
Ms Wishaw's counsel submitted further that Mr Do Carmo had significant degeneration in his neck, thoracic and lumbar spine, but said the degeneration was pre-existing, because the first MRIs he sought in July of 2015 showed the degeneration and the medical evidence was that that could not arise in a couple of months. In effect, it was longstanding degeneration. The question was, to what extent, and whether it was symptomatic. But in any event, Mr Do Carmo's injuries, if any, were modest, as he had worked as a pipe fitter for a significant period post the Accident.
Having regard to the parties' submissions and pleadings, the issues that arise for determination are as follows:
(a)what occurred on 16 February 2015?
(b)what injuries did Mr Do Carmo sustain in the Accident?
(c)what occurred following the Accident?
(d)what symptoms did Mr Do Carmo experience on and after 16 February 2015?
(e)what was Mr Do Carmo's pre-accident medical condition and lifestyle?

(f)were Mr Do Carmo's injuries caused by the Accident?
(g)what was Mr Do Carmo's loss - quantum of damage (if any):
(i)what is the appropriate assessment for past and future economic loss?
(ii)what is the appropriate assessment for past and future medical expenses?
(iii)what is the appropriate assessment for past and future travel associated with seeking medical treatment?
(iv)what is the appropriate assessment for non-pecuniary loss?
(v)what quantum of damages is Mr Do Carmo entitled to?

C. The Accident on 16 February 2015

C.1 The parties' pleadings

Mr Do Carmo alleged that on 16 February 2015 at about 3.40 pm:
(a)he was riding a Kawasaki motorbike, registration 1HF814, in the right-hand lane on Queen Victoria Street travelling across the Fremantle traffic bridge in Fremantle;
(b)Ms Wishaw was driving a white Audi motor vehicle, registration 1ERS494 in the left-hand lane on Queen Victoria Street across the Fremantle traffic bridge;
(c)Ms Wishaw was stationary behind a queue of traffic; and
(d)as he was about to pass her in the right-hand lane, Ms Wishaw suddenly pulled out of the left-hand lane into the right‑hand lane and struck him, thereby causing the Accident: statement of claim (SOC), par 3.
Ms Wishaw does not dispute the pleaded circumstances of the Accident: Defence, par 2.

C.2 Mr Do Carmo's evidence - events of 16 February 2015

Mr Do Carmo gave evidence to the following effect (ts 29 ‑ ts 30):

I rode my bike as I was going north, over the traffic bridge. Before I actually got north, I was in - when you first came onto that lane, you only have one lane, which is the right lane. Cos I came from the right side - going - heading north on the bridge, on the left lane, the cars were compacting and a - a car pulled out, and I collided with the car on a 45‑degree angle. I hit the car door. As I hit the car door, I went above the handlebars, and from that point, I lost slight recognition of what was happening. When I looked at what was happening, I was probably looking at oncoming traffic, and my instincts would just tell me to stay in that right lane and not let myself go over to the other side.

Mr Do Carmo also said that his motorbike shot underneath him and finished in front of him. In response to a question as to how fast he was travelling, prior to the Accident, Mr Do Carmo said 'the speed would have been probably 50' (ts 29).
Mr Do Carmo's evidence was that following the Accident:
(a)his Kawasaki 750 motorbike was 'unrideable' (ts 30);
(b)he was in pain, pain in his 'lower back', which was 'instantaneous' and 'burning' (ts 30);
(c)he tried to speak to Ms Wishaw, but initially there was some difficulties because she was shaking and he could not really recollect what he said to her (ts 30);
(d)there was a dent in the driver's door measuring about 30 cm by 150 cm and 5 - 6 cm deep (ts 30);
(e)he, and 'two guys' helped roll his motorbike off the road and into the car park and 'put it on its stand' (ts 31);
(f)he again spoke to Ms Wishaw and told her that he had just got his motorbike on the road and did not have any insurance (ts 31);
(g)he told her that he had to go to work the next day and could not wait for the RAC (being Ms Wishaw's insurer) to attend the Accident scene (ts 31);
(h)Ms Wishaw agreed to, and did, drive Mr Do Carmo to his parents' home in White Gum Valley (where he was living whilst Mirta and the children were living in Germany) (ts 31 - ts 32);
(i)later that night, Mr Do Carmo drove his ute and motorbike trailer back to the Fremantle traffic bridge, pushed his motorbike onto the motorbike trailer, locked it up, and then drove back to his parents' home in White Gum Valley (ts 32);
(j)once at his parents' home, Mr Do Carmo unhooked the motorbike trailer, and then drove his car to the police station to report the Accident (ts 32); and
(k)around the same time, he attended the chemist to purchase some Nurofen because of the pain he felt in his 'lower back' (ts 32 ‑ ts 33).
I observe that when Mr Do Carmo gave this part of his testimony in the morning of the first day of the trial, he said that his main problem was his lower back (lumbar spine). He did not refer to neck pain or pain in the middle part of his back (being the thoracic region).
Later in his testimonial evidence, Mr Do Carmo explained that he went to Ellen Health and saw Dr Cristina Shaw on 16 July 2015 (ts 45 ‑ ts 46). Mr Do Carmo said he told Dr Shaw about his lower back, because he thought he had 'cracked a vertebra' and was experiencing pain in the middle of his spine (ts 46 - ts 47). He said: 'So I described it to her, so it was the neck, it was the mid-spine, and it was the lower back' (ts 47). I observe here that this was the first time in his testimonial evidence that Mr Do Carmo had referred to pain in his middle back.
After the luncheon adjournment and while Mr Do Carmo was continuing to give his evidence, he was asked to identify the location on his back where he had pain at the time of the Accident. That question came in response to a question from the bench about Mr Do Carmo referring to 'lower back pain' without precisely identifying the relevant location of that pain. In response, Mr Do Carmo stood and pointed to those areas where he said he felt pain at the time of the Accident; he identified his lower back (L4/L5), middle back (thoracic region) and neck (ts 79 - ts 80).

The latter two parts of Mr Do Carmo's evidence contrasted markedly with his earlier evidence. The differences in Mr Do Carmo's evidence were readily observable.

C.3 The Accident - facts not in issue

Mr Do Carmo's version of the events of the Accident was not materially challenged in cross-examination. Similarly, Mr Do Carmo did not make any materially inconsistent statement to the doctors who reviewed him about the way in which the Accident occurred.
Accordingly, I find that:
(a)on 16 February 2015, Mr Do Carmo was riding his Kawasaki 750 motorbike north over the Fremantle traffic bridge when a car going the same direction and being driven by Ms Wishaw, unexpectedly pulled out into the lane that Mr Do Carmo was riding in, causing him to collide with her car hitting the driver's door;
(b)at the point of impact, Mr Do Carmo was thrust forwards and into the air above the handlebars of his motorbike, with his motorbike maintaining its momentum and stopping in front of where he landed;
(c)the impact of the Accident was of such force to render Mr Do Carmo's Kawasaki 750 motorbike unrideable;
(d)after the Accident, Mr Do Carmo, assisted by two strangers, rolled his motorbike off the road and into the car park where it was put it on its stand. Thereafter, Mr Do Carmo accepted a lift from Ms Wishaw to his parents' home in White Gum Valley;
(e)later that night, Mr Do Carmo drove his motor vehicle (ute) and motorbike trailer back to the Fremantle traffic bridge and pushed his motorbike onto the motorbike trailer unassisted, locked it up, and then drove back to his parents' home with the trailer and motorbike in tow; and
(f)once at his parents' home, Mr Do Carmo unhooked the motorbike trailer, and then drove his motor vehicle to the police station to report the Accident and attended a chemist to purchase some Nurofen.
As to Mr Do Carmo's evidence that he thought he was travelling about 50 km per hour just prior to the Accident, Mr Do Carmo's medical records, as set out in various doctors' notes, records and reports, record that Mr Do Carmo told:
(a)Dr Shaw that he thought he was travelling about 60 km per hour (ts 142; exhibit 1.28, page 28.014);
(b)Dr Hardcastle that he thought he was travelling about 40 km ‑ 50 km per hour (ts 382; exhibit 2.7, page 3);
(c)Dr Fairhurst that he thought he was travelling about 50 km per hour (10 May 2017, exhibit 1.31, page 31.001);
(d)Dr Fairhurst that he thought he was travelling about 70 km per hour (4 August 2021, exhibit 1.31, page 31.012); and
(e)Dr Fairhurst that he thought he was travelling about 50 km per hour (14 January 2022, exhibit 1.31, page 31.030).
Doctors Sneddon, Flahive and Thompson do not appear to have recorded a speed. No witnesses were called to give evidence as to the speed at which Mr Do Carmo was travelling.
Mr Do Carmo submitted an online crash report form to the Motor Vehicle Insurance Commission of Western Australia about his motor vehicle accident, which he completed on 8 May 2017 (exhibit 1.29; ts 76). In that form, Mr Do Carmo recorded the speed before and on impact as 60 km per hour.
If the abovementioned documents are accepted as accurately recording Mr Do Carmo's evidence, (that was not disputed at the hearing) then Mr Do Carmo has said, at one time or another, that he thought he was travelling at 40, 50, 60 or 70 km per hour when he collided with Ms Wishaw's vehicle. On the evidence, Mr Do Carmo has given different answers to the same question on multiple occasions. This tends to suggest that Mr Do Carmo's recollection is unreliable. Further, 70 km per hour is 75% faster than 40 km per hour. That is significant.
In the circumstances, given the absence of any objective evidence, and the range of answers that Mr Do Carmo gave, I am not in a position to make a finding as to the speed at which Mr Do Carmo was travelling just prior to the Accident. Having said that, nothing material turns on this, as the trial was not conducted on the basis of the exact speed at which Mr Do Carmo was travelling, but rather the injuries he said he suffered. It is sufficient to observe that Mr Do Carmo must have been travelling at a reasonable speed, given that his motorbike was left unrideable after the Accident and the damage caused to Ms Wishaw's motor vehicle, which was not disputed.

D. What injuries did Mr Do Carmo sustain in the Accident?

D.1 The parties' pleadings

Mr Do Carmo alleges that he suffered the following injuries in the Accident:
(a)aggravation of his cervical spine degeneration;
(b)aggravation of his thoracic spine degeneration;
(c)aggravation of his lumbar spine degeneration; and
(d)cuts and abrasions and bruising: SOC, par 5.
In her defence, Ms Wishaw did not admit that Mr Do Carmo suffered the abovementioned injuries in the Accident: Defence, par 4. Ms Wishaw's counsel's written submissions in closing at par 3 put Ms Wishaw's position more clearly: Mr Do Carmo's claim is not a claim made with 'any real objective evidence supporting an injury or disability'. In effect, Ms Wishaw denied that Mr Do Carmo suffered the abovementioned injuries in the Accident.

D.2 Injuries on 16 February 2015

When Mr Do Carmo initially described the circumstances of the Accident and the pain he felt at the time of the Accident during his testimonial evidence, he said that:
(a)he experienced pain to his 'lower back' which was instantaneous and burning (ts 30, ts 32 - ts 33); and
(b)he went to the chemist to purchase some Nurofen to manage the pain he felt in his 'lower back' (ts 32 - ts 33).
As set out above, in his later testimonial evidence, he referred to neck pain and pain in the middle of his back (thoracic region).
On the day following the Accident, Mr Do Carmo flew to Cape Preston, in the north-west of Western Australia, to commence work with Kerman Contracting on the Sino Iron project onshore at Cape Preston (ts 33). He gave evidence that he flew to Cape Preston on a five-week roster, being four weeks on/one week off, as a pipe fitter (ts 26). He also said that on the day following the Accident, he had a headache and that he started to get headaches every day after the Accident. He said that they were initially mild, but became more severe in October 2020, five and a half years after the Accident (ts 98 ‑ ts 99).
Mr Do Carmo said that he did not go to hospital or see a doctor immediately after the Accident. He said that he first saw a doctor some five months later in July 2015, when he saw Dr Shaw (ts 44). This is expanded below.

D.3 Findings as to injuries

As I have indicated above, Mr Do Carmo explained that his main problem at the time of the Accident was his lower back. That differed to his explanation of his appointment with Dr Shaw and his demonstration to the court as to the location of his injuries. Although I found the differences in Mr Do Carmo's evidence noticeable, I have on balance found that Mr Do Carmo sustained an injury to his back in the Accident (which affected his neck, thoracic and lumbar regions).
In my opinion, it is more probable than not, that Mr Do Carmo sustained an injury to his back (affecting his neck, thoracic and lumbar regions) at the time of the Accident. However, that injury was modest, or at least, was not so significant that it warranted immediate investigation and/or medical treatment. My reasons for this finding are eight-fold.
First, Mr Do Carmo did not go to hospital or see a doctor immediately after the Accident, even for minor cuts and/or abrasions.
Secondly, Mr Do Carmo assisted with removing his motorbike from the road immediately after the Accident.
Thirdly, following the Accident, Mr Do Carmo drove with Ms Wishaw to his parents' home in White Gum Valley. Thereafter, he hooked his motorbike trailer to his car and returned to the Fremantle traffic bridge to pick up his motorbike, which he did unassisted, before returning to White Gum Valley where he unhooked his motorbike trailer before then travelling to his local chemist, and police station to report the Accident.
Fourthly, Mr Do Carmo flew to Cape Preston in the north-west of Western Australia on the day following the Accident, to commence work as a pipe fitter for four weeks, before returning to Perth and then returning to site for another four-week rotation. He went to Germany for a week in May 2015, before returning to Australia where he completed two more four-week rotations with his employer.
Fifthly, Mr Do Carmo did not seek and received no medical treatment following the Accident for five months. He received only limited medical treatment thereafter. I have expanded on this below.
Sixthly, Mr Do Carmo said that he did not seek treatment from a medical practitioner when he went to Karratha on one of his rostered days off (RDOs) while working at Cape Preston because 'he didn't think he needed it' (ts 131).
Seventhly, Mr Do Carmo gave evidence that Dr MacDougall told him in August 2015 that he would recover in about 12 months and that because of that advice, he delayed seeing another doctor for about 18 months. This is expanded below. If one accepts Mr Do Carmo's evidence, then it seems implicit in Dr MacDougall's diagnosis that there was nothing seriously wrong with Mr Do Carmo. And in contradistinction to Mr Do Carmo's evidence, Dr MacDougall's notes of the consultation indicate that she told Mr Do Carmo to return to her if 'any symptoms or concerns' arose. In effect, if Mr Do Carmo 'delayed' in seeing another doctor, it was not because of anything Dr MacDougall had said to him: quite the contrary.
The above reasons, individually and collectively, tend to suggest that Mr Do Carmo's injuries were modest and of short duration.
Finally, the degree to which Mr Do Carmo was injured, turns in large part, on Mr Do Carmo's credit and reliability, both of which are in issue. I expand on this below.

E. What occurred following the Accident?

Much of Mr Do Carmo's evidence on the following matters was uncontroversial and largely unchallenged. That was also true of Mirta's evidence. Having regard to the above, and the agreed chronology (see also ts 470), I make the following findings of fact.
Mr Do Carmo flew to Cape Preston early in the morning the day after the Accident, to commence work with Kerman Contracting on a five‑week roster, being four weeks on/one week off, as a pipe fitter. On his rostered week off, he returned to Perth. Mr Lorkin worked with Mr Do Carmo as a trades' assistant at Cape Preston. Mr Do Carmo worked on the Cape Preston project with Kerman Contracting from 17 February 2015 for about six months, ceasing on 11 August 2015.
In May 2015, Mr Do Carmo flew to Germany for six days to attend his daughter Alissa's first holy communion. Upon returning to Australia, Mr Do Carmo completed two more four-week swings with Kerman Contracting.
Mr Do Carmo attended on a GP, Dr Cristina Shaw at Ellen Health in Fremantle, Western Australia, on 16 July 2015, the first doctor he saw about his injuries after the Accident.
Mr Do Carmo completed a further swing with Kerman Contracting in July and early August 2015.
Mr Do Carmo attended Ellen Health and saw Dr Felicity MacDougall on 19 August 2015. At the time, Dr Shaw was on holidays.
Between 25 September 2015 and 13 April 2016, Mr Do Carmo worked for Clough on the offshore Wheatstone Project. Mr Do Carmo's roster was two weeks on/two weeks off. Each shift on the Wheatstone platform was a 12-hour shift. Mr Do Carmo was employed as a pipe fitter on a casual basis, subject to the terms of an enterprise agreement called the Clough Projects Pty Ltd Onshore and Offshore Greenfields Agreement 2014 (ts 63; exhibit 1.35).
Mr Do Carmo spent six months from May to October 2016 in Germany with his family.
Between 28 October 2016 and 3 March 2017, Mr Do Carmo completed a second stint of work for Clough on the Wheatstone Project. His roster was three weeks on/three weeks off. Mr Do Carmo was again employed as a pipe fitter on a casual basis.
Mr Do Carmo visited South Street Medical Centre and saw Dr Louie on 13 April 2017.
Mr Do Carmo again travelled to Germany for about five months to see Mirta and his children between mid-May and October 2017.
Following his return to Australia, Mr Do Carmo visited Dr Liddell on 6 and 27 November 2017.
Mr Do Carmo returned to Germany to bring his family back to Australia in February 2018.
Mr Do Carmo attended the Perth Radiological Clinic and underwent a CT-guided right L4/L5 facet joint injection on 5 April and 5 September 2018; 11 January, 12 April and 10 October 2019; 27 March 2020 and 30 November 2021 (exhibit 1.25, pages 25.001 ‑ 25.006, 25.008).
Between 30 April and 4 September 2018, Mr Do Carmo worked at Orestruc Pty Ltd as a boilermaker, in North Fremantle.
Between 1 and 12 October 2018, Mr Do Carmo worked with APMS on the Kwinana Nickel Refinery shutdown as a pipe fitter, in Kwinana.
Between 14 January and 4 October 2019, Mr Do Carmo worked at AusGroup as a pipe fitter on the Tianqui Lithium plant, in Kwinana.
Between 15 October and 8 November 2019, Mr Do Carmo worked at APMS again on the Kwinana Nickel Refinery shutdown as a pipe fitter, in Kwinana.
Over a year later in 2020, for three days between 3 and 5 December 2020, Mr Do Carmo worked at getFresh, Canning Vale, as a delivery driver.
On 3 August 2021, Mr Do Carmo attended the Perth Radiological Clinic and underwent a CT-guided injection to his greater occipital nerve (exhibit 1.25, page 25.007).

F. After the Accident - Mr Do Carmo worked and travelled

F.1 Kerman Contracting - 17 February to 1 May 2015

Mr Do Carmo gave evidence that following the Accident, he did not have much of a night's sleep because he had to get up at about two o'clock in the morning in preparation to fly to Cape Preston, in the north of Western Australia, to commence work with Kerman Contracting on the Sino Iron project at Cape Preston (ts 33). He gave evidence that he flew to Cape Preston on a five week roster, being four weeks on/one week off, as a pipe fitter (ts 26, ts 131; exhibit 1.1, page 1.004). His normal shift involved working 13 days straight, then a rostered day off (RDO) (ts 131). On at least one of those RDOs, Mr Do Carmo went to Karratha but did not seek treatment from a medical practitioner because 'he didn't think he needed it' (ts 131). At the conclusion of his four‑week shift, Mr Do Carmo flew back to Perth for a week (ts 131). Thereafter, he completed a further shift.
Mr Do Carmo's counsel referred to this contract as a three weeks on/one week off in his examination of Mr Do Carmo, during which Mr Do Carmo corrected him (ts 26). For reasons unexplained, Mr Do Carmo's particulars of damage as set out in the papers for the judge also referred to the Kerman Contracting contract as three weeks on/one week off (page 9).
Mr Do Carmo also said that:
(a)he did not get much sleep because he was in pain (ts 33);
(b)he did not really 'think about the injury at all' because he 'had too much on the line' (ts 33);
(c)financially he would have 'fallen in'; he would not have survived financially, if he did not commence work with Kerman Contracting (ts 34); and
(d)he told Mirta about the Accident about two days after the Accident (ts 34).
Mr Do Carmo gave evidence to the effect that during his time at Cape Preston, he managed his duties with the assistance of his trades' assistant, Mr Lorkin (ts 35 - ts 38). He said that on the first day, he told the superintendent about the Accident and his injuries, but also told his superintendent that he did not want to go home (ts 34): i.e. be sent home.
Mr Do Carmo said that his superintendent said he would give Mr Do Carmo 'a certain amount of time' to see how he went (ts 34) and gave him some work to do which was 'lower' and 'supplementary to the main job' (ts 35). The supplementary job involved 'organising supports for piping structures', which was not what Mr Do Carmo normally did (ts 35). In contrast, Mr Do Carmo's normal role involved putting in pipe work (ts 35):
The main job is pipe work, is actually to put in pipe work. Pipe work entails a piece of pipe with two connections or more built in and then you'll actually install it or fabricate it in that way. That's what a pipe fitter does.
Mr Do Carmo said that he was given a 'trade assistant to do all of the lifting for [him]' - being Mr Lorkin, which occurred on the first day (ts 35). Mr Do Carmo explained that the heavy lifting involved Mr Lorkin 'organising all the tools to go to a job face' (ts 35); he said that Mr Lorkin 'did all of the heavy lifting' (ts 35), which he explained meant carrying his equipment, which weighed about 15 ‑ 20 kg (ts 37), and pushing a wheelbarrow to transport his tools, which weighed 5 ‑ 10 kg (ts 35 - ts 37).
Mr Do Carmo gave evidence that:
(a)he had difficulties walking, and going up and down stairs (ts 37);
(b)he had lower back pain, which he took Nurofen to manage (ts 36);
(c)he had pain in his neck when measuring the work site (ts 37 ‑ ts 38);
(d)he took his motorbike elastic kidney belt with him to Cape Preston and some Nurofen and started using the belt on or about 20 February 2015 (ts 43 - ts 44); and
(e)in about March 2015, he tried supporting his back with 'magnets' that he bought from China (ts 43).
Mr Do Carmo's testimony is difficult to reconcile with his counsel's written opening submissions. In his written opening submissions at par 11, Mr Do Carmo's counsel explained that Mr Do Carmo did not complain to Kerman Contracting about these matters because he did not want to lose his job: he was confident at the time he would recover with regular physical activity and gym work. Mr Do Carmo's counsel's written opening submissions did not mention that when Mr Do Carmo started with Kerman Contracting, he told his superintendent about the Accident and his injuries and in response, Mr Do Carmo was given work which was less difficult or less demanding.
Although Mr Do Carmo said that he experienced pain in his lower back and neck and had difficulties walking, I find that these were not material or significant in the scheme of things or, at the very least, Mr Do Carmo did not think they required further investigation. Three things lead me to this conclusion:
(a)Mr Do Carmo's evidence was that while he was at site, he did not seek treatment from a medical practitioner because 'he didn't think he needed it' (ts 131). In effect, Mr Do Carmo's evidence tends to suggest that he could manage any issues he was having;
(b)Mr Do Carmo did not tender any evidence of sick days or time off while at site; and
(c)the medical experts gave evidence that fly in/fly out shift work for boilermakers and pipe fitters was physically demanding and required physical and muscular endurance and a good level of general fitness. On Mr Do Carmo's evidence, this was his first job for more than 13 months, and first fly in/fly out work for considerably more than that. It was only natural that Mr Do Carmo would experience some aches and pains adjusting to working long hours again.
Mr Lorkin gave evidence that he worked for Kerman Contracting as a trades' assistant on a four weeks on/one week off roster at Cape Preston between February and December 2015 (ts 233). He said that he worked with a lot of people at Cape Preston:
Peter being one of them. Because I was a trades' assistant I worked everywhere with a lot of people.
Mr Lorkin said in evidence that his job as a trades' assistant was to do the heavy lifting for the trades (ts 234). Mr Lorkin was not asked whether he carried any tools for Mr Do Carmo.
Mr Lorkin said in evidence that he noticed Mr Do Carmo 'struggling', in particular, lifting above his head (ts 233). And he recalled that Mr Do Carmo said to him that he was in pain.
In response to questions from Ms Wishaw's counsel, Mr Lorkin said that he had not worked with Mr Do Carmo prior to the Kerman Contracting job, and as a result, did not know his capacity to lift weight before commencing with Kerman Contracting; he could not recall when he first started working with Mr Do Carmo, how many months he worked with him, or whether he was on the same swings as him (ts 234). Mr Lorkin agreed that a fair summary of his evidence was that he thought Mr Do Carmo could 'lift a bit more' and that Mr Do Carmo had made some complaints about his pain (ts 234 - ts 235).

I find that it is more probable than not that Mr Lorkin observed Mr Do Carmo struggle lifting weight above his head and that Mr Do Carmo told him that he had some pain. However, Mr Lorkin's evidence was very general in nature, and lacked specifics. Counsel for Mr Do Carmo did not quantify the amount of time that Mr Lorkin spent with Mr Do Carmo or when that was; and Mr Lorkin could not recall when he first started working with Mr Do Carmo. Mr Lorkin did not know how strong Mr Do Carmo was before commencing at Kerman Contracting. In the circumstances, I find it difficult to give much weight to Mr Lorkin's evidence.
In the circumstances of the above, I find that Mr Do Carmo's Accident related injuries were modest and did not cause Mr Do Carmo any real concern as was evidenced by Mr Do Carmo working multiple four‑week fly in/fly out shifts with Kerman Contracting.

F.2 Overseas trip to Germany - 2 to 7 May 2015

As set out above, Mr Do Carmo spent six days in Germany visiting his family in early May 2015. He gave evidence that he was in pain while he was in Germany, and that he did not 'touch' or play with his children and did not push them on their bikes (ts 38). He took painkillers or Nurofen (ts 45).
During this part of his evidence, Mr Do Carmo became quite emotional and took a short break to compose himself. He also said that at a family gathering, he received some advice from a friend (Gert Schuster), who was a doctor, and a lady friend (Astrid Noyman ‑ an assistant to a radiologist) to the effect that he should go to a clinic in Germany for an examination and that he should be not be working (ts 40 - ts 41, ts 131).
In her evidence, Mirta said that when she saw Mr Do Carmo in Germany, he had 'impaired movement' (ts 242). When asked to explain that term, Mirta said that Mr Do Carmo did not move like he normally would; no running or lifting (such as tables, and benches) or weightlifting, and he did not want physical closeness (ts 242 - ts 243).
I found this part of Mr Do Carmo's evidence difficult to accept and exaggerated. I expand on this below. He said that he did not 'touch' or play with his children when in Germany in circumstances where he had not seen his children in six months, since returning to Australia in December 2014 (ts 25). Given that the reason for going to Germany was a special occasion to celebrate with his daughter, Mr Do Carmo's explanation of his time in Germany and lack of interaction with his family seemed exaggerated.
In relation to Mirta's evidence, I accept that Mr Do Carmo may not have been his usual self. He had just finished a four-week swing in the north of Western Australia and flown to Germany, with international flights to Europe commonly taking 20 hours or more. It is well known that long flights can take a toll on the body. He was only in Germany for a matter of days.

F.3 Kerman Contracting - 8 May to 11 August 2015

Upon returning to Australia, Mr Do Carmo completed two more four‑week swings with Kerman Contracting.
Mr Do Carmo gave evidence that:
(a)he was in pain while he worked at Cape Preston, in the lower back (ts 42);
(b)he had neck pain, and headaches, but that that was because of the way he was sleeping (ts 42);
(c)he brought a 'special pillow' to the site to manage his neck pain, which he had bought in Karratha (ts 43); and
(d)he bought a back support from Active Orthotics in early July 2015 for AUD 27.73 (ts 43 - ts 44; exhibit 1.24).
Mr Do Carmo gave evidence that he did not see a doctor until he saw Dr Shaw on 16 July 2015 (ts 44). Dr Shaw worked at Ellen Health, which was about 800 m from where Mr Do Carmo lived. It was not his family practice. Dr Louie was Mr Do Carmo's family GP, but his practice was about two and a half km away from his house (ts 44).
Mr Do Carmo said he was prompted to go to the doctor because 'he could not walk', he was in a lot of pain in the 'lower back' (ts 44); he thought he might have 'cracked a vertebra' in his back during the Accident because the pain had got worse since the Accident (ts 44 ‑ ts 46). His evidence was that he could not sit, could not get into a car; he did not really walk to the practice; he 'limped to the practice' (ts 45).
I had difficulty with this part of Mr Do Carmo's evidence and do not accept it. I observe that the matters that Mr Do Carmo described as prompting him to visit Dr Shaw are not recorded in Dr Shaw's notes of her consultation with him. At face value, a cracked vertebra and an inability to walk are significant complaints. They are the sort of complaints that Dr Shaw most likely would have recorded during her consultation with Mr Do Carmo. They are also inconsistent with Mr Do Carmo's self-assessment before he went to Germany in May 2015 when he did not seek treatment from a medical practitioner because 'he didn't think he needed it' (ts 131). It may be recalled that Mr Do Carmo completed a further shift with Kerman Contracting upon his return from Germany. And his complaints are also inconsistent with working four-week shifts as a pipe fitter. It seemed to me that this was another example of Mr Do Carmo exaggerating his injuries.
Mr Do Carmo said that he told Dr Shaw about pain in his neck, pain in the middle of his spine, being the thoracic area, and lower back (ts 47).
Dr Shaw's notes of the surgery consultation record as follows (exhibit 1.28, page 28.014), under the heading 'Subjective':
Presents requesting imaging following motorbike accident in Feb.
Was on freo bridge and a car swerved in front of him and he went over the front.
Was going about 60 kilometres an hour and was wearing a helmet.
Has had ongoing thoracic back pain since.
Think pain has decreased over time but has stopped doing weights at the gym.
Had to go to work the next day up north so never got it checked out.
Nil radiation of pain or focal neurology.
(emphasis added)
Mr Do Carmo was taken to this record in cross-examination. He maintained that he told Dr Shaw about his lower back, because his lower back was the worst when he went to visit her (ts 142).
The next heading on the record is 'Objective', which states relevantly, as follows:
Pain on palpitation centrally over spine around T3/T4
Nil pain paraspinally
Back exam - NAD (no abnormality detected), good ROM (range of movement)
(explanations added)
Mr Do Carmo was also asked whether he agreed with Dr Shaw's assessment that he had a good range of movement when he visited Dr Shaw. Mr Do Carmo maintained that he did not (ts 144).
Under the heading 'Actions', Dr Shaw's notes refer to a request for Magnetic Resonance Imaging (MRI) of Mr Do Carmo's cervical spine (neck), thoracic spine (middle of the back) and lumbar spine (lower back).
Mr Do Carmo said that he discussed obtaining an MRI with Dr Shaw. He said it came up because he was telling her about the pain in his neck and that he could not use his left arm when he first started his first stint with Kerman Contracting (ts 47).
Dr Shaw prescribed meloxicam (brand name Mobic), a non‑steroidal anti-inflammatory drug (NSAID), one tablet daily and pantoprazole, a stomach liner, one tablet daily. Dr Shaw did not refer Mr Do Carmo to a specialist for further examination. From these matters, I infer that any symptoms that Mr Do Carmo was suffering were relatively mild.
Dr Shaw's notes conflict with Mr Do Carmo's oral evidence in two material respects. First, Dr Shaw's notes refer to thoracic back pain only. The notes do not refer to neck or lower back pain. The notes are consistent with Dr Shaw's examination of Mr Do Carmo and the notes she made of the consultation, which refer to pain around T3/T4 (being the thoracic region). Secondly, Dr Shaw's notes say that Mr Do Carmo's pain had decreased over time, not increased, and that he had a good range of movement. That was different to Mr Do Carmo's oral evidence mentioned above (ts 44 - ts 45).
I prefer Dr Shaw's documentary record of her appointment with Mr Do Carmo rather than Mr Do Carmo's recollection of an appointment some six and a half years earlier. That record is more likely to be an accurate reflection of the relevant appointment than Mr Do Carmo's memory of it. Later at Part I.2, I refer to why the documentary record is often preferred to a witness' recollection. In the present case, I also have reservations about the reliability of Mr Do Carmo as a witness, which I expand on below. I find that Mr Do Carmo complained to Dr Shaw about his thoracic back pain, that being his main concern at that time, and that his thoracic back pain had decreased, not increased, since the Accident.
In written closing submissions, Mr Do Carmo submitted that the MRI entry was consistent with Mr Do Carmo complaining about the pain associated with his neck, middle and lower back, and not just his thoracic region. Three things may be said about this. First, this does not explain why Dr Shaw did not record any reference to neck or lower back pain when she met with Mr Do Carmo, as set out under the 'Subjective' heading. Secondly, it also does not explain why on examination, there was no reference to neck or lower back pain. Thirdly, Mr Do Carmo's interpretation of Dr Shaw's notes rest on Dr Shaw adopting a different approach to recording Mr Do Carmo's injuries (i.e. omitting certain complaints). Mr Do Carmo did not explain why Dr Shaw would adopt this approach. In my view, this seems unlikely.
Mr Do Carmo could have called Dr Shaw to explain her practice during medical consultations. Likewise, she could have been asked about her recollection of this appointment. However, Dr Shaw was not called. There was no evidence as to why that was. It may be inferred that nothing that Dr Shaw may have said would have assisted Mr Do Carmo.
In my view, Mr Do Carmo's submission about the MRI entry is simply speculation. Why Dr Shaw requested the scans is not recorded in her notes with Mr Do Carmo. It may simply have been to satisfy Mr Do Carmo's request for an MRI, as she recorded in her notes.
Mr Do Carmo completed a further swing with Kerman Contracting in July and part of August 2015.
On 11 August 2015, Mr Do Carmo ceased work with Kerman Contracting.
Mr Do Carmo gave evidence that he attended Ellen Health on 19 August 2015 and saw Dr MacDougall, as Dr Shaw was on holiday. He said that the purpose of the visit was to discuss the MRI (ts 47, ts 49).
Dr MacDougall's notes of the surgery consultation record as follows, under the heading 'Subjective' (exhibit 1.28, page 28.015):
Back pain has improved significantly since last visit
Chronic back pain but significant deterioration following MBA earlier this year
Taking meloxicam and PPI
Pain flares when NSAIDs stopped
Gradually increased exercise - back into weights training
No neuropathic pain or weakness
(emphasis added)
Mr Do Carmo was taken to Dr MacDougall's reference to 'chronic back pain'. Mr Do Carmo denied telling her that he had chronic back pain (ts 144). However, Mr Do Carmo also said that Dr MacDougall did raise with him the observed degenerative changes (ts 144). I observe that it was not disputed that that 'chronic' referred to longstanding (see for example Dr Thompson at ts 221).
In written closing submissions, Ms Wishaw submitted that the only sensible reading was Mr Do Carmo had pain in his back, which was longstanding prior to the Accident.
Dr MacDougall's notes of her consultation conflict with Mr Do Carmo's oral evidence. The reference to chronic back pain is significant. Plainly read, it tends to suggest that Mr Do Carmo told Dr MacDougall that he had pre-existing back pain, prior to the Accident, something that Mr Do Carmo denied. I prefer Dr MacDougall's documentary record of her appointment with Mr Do Carmo. Dr MacDougall had no reason to add that statement unnecessarily and none was suggested. Given the 'Subjective' heading to this part of Dr MacDougall's notes, I find that it is more probable than not that Mr Do Carmo told Dr MacDougall about his chronic back pain, and the deterioration of his back pain after the Accident. In effect, that Mr Do Carmo had longstanding back pain that had deteriorated after the Accident. I also find that Mr Do Carmo told Dr MacDougall that his back pain had 'improved significantly since the last visit' as recorded in Dr MacDougall's notes.
In his written closing submissions, Mr Do Carmo accepted that Dr MacDougall's notes could be read as suggesting that he suffered back pain leading up to the Accident (plaintiff's closing submissions (PS), par 22). However, he submitted that caution should be exercised in reaching that conclusion because of Dr Thompson's and Mr Do Carmo's evidence - the effect of which was that there was no other record of chronic back pain prior to the Accident.
In my view, Dr Thompson did not contradict the purport or effect of Dr MacDougall's notes; in fact, just the opposite (e.g. page 33.011 of Dr Thompson's report where he states that he could not reconcile the two conflicting positions). And insofar as reliance is placed on Mr Do Carmo's recollection of his consultation with Dr MacDougall nearly six and a half years earlier, I refer to later at Part I.2 why I prefer the documentary record to that of Mr Do Carmo's memory.
I should also observe that Mr Do Carmo could have called Dr MacDougall to explain her practice during medical consultations. As with Dr Shaw, Dr MacDougall could have been asked about her recollection of this appointment. Given that Mr Do Carmo did not call Dr MacDougall, it may be inferred that nothing that Dr MacDougall may have said would have assisted Mr Do Carmo.
Dr MacDougall's notes record that Mr Do Carmo told Dr MacDougall that he was 'back into [his] weights training' and had gradually increased his exercise, and that Mr Do Carmo had no neuropathic pain (no nerve pain).
Dr MacDougall's notes continue as follows:
Image results explained in detail; Degenerative changes only, no nerve or cord compression; Discuss long term management - no CI to NSAIDs.¹
(FN¹: It was suggested that the terms, CI to NSAIDs, was probably a reference to no contraindication to non steroidal anti-inflammatory drugs (ts 147).)
Mr Do Carmo agreed that Dr MacDougall explained the MRI results to him (ts 49).
Mr Do Carmo also said that Dr MacDougall said to him that it was likely that he would recover in about 12 months (ts 49). Mr Do Carmo said that because of Dr MacDougall's advice, he delayed making a claim with the Motor Vehicle Insurance Commission of Western Australia for about 18 months, because he thought he would recover (ts 49, ts 145 - ts 146).
During the hearing, it was put to Mr Do Carmo's counsel that the advice that Mr Do Carmo said he received from Dr MacDougall was hearsay (ts 74). Counsel's position was that Mr Do Carmo did not rely on the truth of the statement: it was 'just an explanation why he continued to think that he was going to be able to resolve this for himself by whatever exercise or rehabilitation' (ts 74).
The final part of Dr MacDougall's notes refer to the heading 'Plan' and state the following:
1. Long term management explained - exercise, NSAIDs pRN, aim to reduce need for NSIADs [sic]
2. Return if any new symptoms or concerns - if needing repeat NSAIds [sic] should have screening bloods.
In cross-examination, Mr Do Carmo recalled Dr MacDougall telling him to exercise and use anti-inflammatories as required (ts 146). Mr Do Carmo was asked whether Dr MacDougall told him to return if there were any new symptoms or concerns. Mr Do Carmo did not answer the question - but said that Dr MacDougall told him about completing a Motor Vehicle Insurance Commission of Western Australia form (ts 146).
At face value, Dr MacDougall's notes record that she explained to Mr Do Carmo how to manage his back complaint, which involved, exercise and reducing NSAIDs. Dr MacDougall also told Mr Do Carmo to return to her if 'any symptoms or concerns' arose. I have no reason to doubt that Dr MacDougall told Mr Do Carmo to undertake exercise and to return to see his GP if his condition deteriorated. I make these findings accordingly.
As is apparent from Dr MacDougall's notes, she did not refer Mr Do Carmo to a specialist for further examination or specify any further tests. To the contrary, a fair reading of her notes suggests that she told Mr Do Carmo to undertake some exercise and to return to her if he had any further symptoms or concerns. This suggests that Mr Do Carmo's symptoms were not a concern and did not warrant further investigation or further review. When read in the context of what Mr Do Carmo had told Dr MacDougall, in particular, that his back pain had improved significantly since his last visit, something which he also told Dr Shaw a month earlier, it is implicit that Mr Do Carmo's symptoms were mild, and that he would recover without further medical treatment (other than anti-inflammatory tablets in the short term). I make that finding.
In his closing submissions, Mr Do Carmo submitted that the advice that Dr MacDougall allegedly gave to him about recovering in 12 months explained his delay in seeing another doctor and having his back pain attended to. It also explained his delay in making a claim against Ms Wishaw, which occurred two months after Mr Do Carmo had ceased work with Clough in March 2017 (PS, par 23).
For the following reasons, I do not accept the first proposition and have no view on the second. First, Dr MacDougall's notes suggest that she told Mr Do Carmo to return to see her if there were any new symptoms or concerns. This seems to conflict with Mr Do Carmo's evidence. Secondly, Mr Do Carmo's submission implies that he had back pain that went unattended. Put differently, that Mr Do Carmo delayed having his back attended to because of Dr MacDougall's advice. In my view, that is simply not plausible.
Further, it is inconsistent with (1) Mr Do Carmo working at Clough for 12 months in total and stating that he did not have a disability, injury or condition on his Clough employee form in September 2015, (2) his time in Germany where he did not seek medical treatment and (3) his first appointment with a medical practitioner in April 2017 after seeing Dr MacDougall where the one matter he complained about was his neck (each of which is expanded in more detail below). In my view, it is more likely than not that Mr Do Carmo did not attend on a doctor between seeing Dr MacDougall in August 2015 and Dr Louie in 2017 because his back and neck were not a real concern to him. I make that finding.

F.4 Clough Projects - September 2015 to April 2016 - first stint

In September 2015, Clough's Mark Bradley made enquiries with Kerman Contracting (specifically, Leigh Puschmann - Mr Do Carmo's supervisor whilst at Kerman Contracting) about Mr Do Carmo's performance whilst he worked at Kerman Contracting (ts 69; exhibit 1.9). The record of those enquires was recorded in a document titled 'reference checks'. In that document, Mr Do Carmo's main work responsibilities were described as pipe fitter. His productivity was excellent. His main strengths were that he was very good with paperwork; 'one of the pillars of the team. Overall aspects of the project very tenacious - would take things home until things were done - will not give up'. His attendance and commitment at the job were described as excellent. The reason for leaving was his family was in Germany, coming back to Australia. In response to whether he would employ Mr Do Carmo again, Mr Puschmann said 'definitely - highly recommended'. Mr Do Carmo was taken to this document in cross‑examination and agreed with its contents (ts 132 - ts 134).
In light of this record, Mr Do Carmo was asked about his time at Kerman Contracting (ts 134):
So for those five swings you did an excellent job notwithstanding what you say were your injuries?---I over - I was over my injuries at that - I was - I was working well with my injuries, yes, correct.
The reference check suggests that Mr Do Carmo had done a good job while at Kerman Contracting, with which Mr Do Carmo agreed (ts 133 - ts 134). That issue was not in dispute and I make that finding accordingly. From this it may be inferred that whatever injuries Mr Do Carmo had at the time he was with Kerman Contracting, they did not detract from his job performance. It may also be inferred that, given the four-week rosters, and the six months that Mr Do Carmo spent with Kerman Contracting, his injuries had largely resolved by that stage or at the very least, any remaining injuries he had were modest. I make these findings as well.

Mr Do Carmo submitted that when considering the appropriate amount of general damages, the court should take into account the following things: PS, par 62:
(a)the way in which the Accident happened;
(b)Mr Do Carmo's injuries in the Accident, namely chronic neck and back pain and severe headaches;
(c)Mr Do Carmo's treatment for his injuries, namely:
(i)medication on an almost daily basis in the past and for the rest of his life; and
(ii)a series of invasive injections in the past and to a limited extent, into the future;
(d)that Mr Do Carmo's injuries had affected him, and would continue to affect him, for the rest of his life in terms of:
(i)enjoyment of life and family. For example, as a result of his injuries he now slept on his own on a canvas bed in a separate part of the house; and
(ii)preventing him from 'living his dream', which was to work as a pipe fitter, boilermaker or welder on an offshore installation off the coast of Western Australia.
In response, Ms Wishaw did not accept that Mr Do Carmo was entitled to damages for non-pecuniary loss.

P.3 Relevant law

Section 3C of the MVA limits the amount of damages that may be awarded for non-pecuniary loss as a result of a motor vehicle accident.
Non-pecuniary loss is defined in s 3C(1) to mean 'pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm'.
The amount of damages to be awarded for non-pecuniary loss is to be a proportion, calculated according to the severity of the non‑pecuniary loss, of the prescribed maximum amount on the date the determination is made. The maximum is to be awarded only in 'a most extreme case': s 3C(2), s (3) and s (13). The prescribed maximum amount is currently $438,000: Government Gazette (No. 78), 30 April 2021, page 1,600.
In Den Hoedt v Barwick [2006] WASCA 196, Buss JA (as he then was) considered the expression 'a most extreme case' as contained in s 3C(3) and said at [96] that:
The expression 'a most extreme case' in s 3C(3) refers to a class of cases rather than to a case 'at the apex of the gradation of injuries': Marsland v Andjelic (1993) 31 NSWLR 162 at 183. Also see Crystal Wall Pty Ltd v Pham [2005] NSWCA 449 at [53]. A judge's assessment of whether a case is 'a most extreme case' within s 3C involves 'questions of fact and degree, and matters of opinion, impression, speculation, and estimation, calling for the exercise of common sense and judgment': Dell v Dalton (1991) 23 NSWLR 528 at 533-534. An appeal court should not interfere with a trial judge's finding unless satisfied that he or she applied a wrong principle of law, misapprehended the facts or made a wholly erroneous characterisation of the plaintiff's case.
In Houlahan v Pitchen [2009] WASCA 104, Newnes JA with whom Pullin and Miller JJA agreed, stated at [107] - [108] that:
The principle to be followed in assessing damages is that the amount of damages must be fair and reasonable compensation for the injuries received by the plaintiff and the disabilities caused, having regard to current general ideas of fairness and moderation: Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118, 125. The amount must be proportionate to the situation of the particular plaintiff.
In determining whether an award of general damages is outside the bounds of a proper exercise of discretion, the question, therefore, is not whether the award is proportionate to some such standard or norm, but whether in the particular case it is proportionate to the injuries received and the disabilities suffered by the plaintiff.
The above principle was affirmed by the court in Winiarczyk v Tsirigotis [2011] WASCA 97 [71] (Newnes & Murphy JJA & Mazza J).
Under s 10A of the CLA, in determining damages for non‑pecuniary loss, a court may refer to earlier decisions of that court or other courts for the purpose of establishing the appropriate award in the proceedings. Counsel may bring to the court's attention awards of damages for non-pecuniary loss in earlier decisions.
In written closing submissions, Ms Wishaw provided the court with a number of cases for comparison purposes. I refer to three of those below.
In Stojceska v Muharemovic [2017] WADC 9, Staude DCJ awarded the plaintiff in that case, 5% of the statutory limit for non‑pecuniary loss. In that matter, the plaintiff was found to have mild injuries that resolved over a relatively short period with negligible treatment. This decision has some similarities with Mr Do Carmo's case.
Another case with similarities is the decision in Avsar v Richwood [2019] WADC 51 (O'Neal DCJ). In that case, O'Neal DCJ awarded 5% to the plaintiff in circumstances where the plaintiff sustained a head injury and a soft tissue injury to her spine (amongst others) as a result of a bus stopping suddenly in which the plaintiff was a passenger. The plaintiff was admitted to the hospital as a result of her injuries in the accident.
In Shergold v Edwards [2016] WADC 150, Staude DCJ awarded the plaintiff in that case 12.5% of the statutory limit for non-pecuniary loss. The plaintiff in that case, sustained neck and spine injuries as a result of being struck by a vehicle from behind. The plaintiff attended hospital due to the injuries he sustained.
Mr Do Carmo referred the court to two cases for comparison purposes in his written closing submissions. In Cleary v The Insurance Commission of Western Australia [2019] WADC 29 (Cleary), Vernon DCJ awarded 35% of a most extreme case. In that case, her Honour found that the plaintiff suffered a significant and traumatic injury when he was struck from behind while he was stationary at traffic lights on his bicycle. The defendant in that case admitted that the plaintiff had suffered injuries including a head injury, fractures to C5, C6 and C7 of his cervical vertebra, fractures to his thoracic vertebra (T1 and T2), broken ribs, damage to his knee and related soft tissue injuries. It was not disputed that the plaintiff was significantly affected by the injuries he sustained six months after the accident.
In my view, the factual circumstances of the present case are very different to the facts in Cleary. I do not think the comparison appropriate.
The second case was Syme v Roos [2016] WADC 164. In that case, the plaintiff was a passenger in a car that was involved in a motor vehicle accident. The plaintiff was taken to hospital after the accident. Gething DCJ found that the plaintiff had sustained injuries to her neck and back as a result of the accident, which had persisted for 3 ½ years after the accident and were likely to continue for the long term. He also found that the plaintiff was unable to undertake a significant range of activities which made life enjoyable. Gething DCJ awarded the plaintiff 15% of a most extreme case.
There are some similarities between the factual circumstances in Syme and the present circumstances but there are also material differences.

P.4 Mr Do Carmo's evidence

Mr Do Carmo gave evidence that following the Accident to the end of 2016, he suffered from intermittent back pain that affected:
(a)his sleeping habits;
(b)his family arrangements, including the way he interacted and played with his children and the activities that he could do with his children, including the type and frequency of sport and the activities that he could do with his family;
(c)the activities that he could do with Mirta; and
(d)his work, but not in an economic way.
I have found that it is more probable than not, that Mr Do Carmo sustained an injury to his back at the time of the Accident (affecting his neck, thoracic and lumbar regions). I have also found that Mr Do Carmo's injury was modest, and progressively resolved throughout 2015 and had fully resolved by the end of 2016 at the latest.
I find that following the Accident to the end of 2016 at the latest, Mr Do Carmo suffered from intermittent back pain that affected the matters set out in [711] above.

P.5 Findings and assessment

Mr Do Carmo has established that he sustained a modest injury in the Accident through Ms Wishaw's negligence. However, the injury resolved over a relatively short period of time (at the latest, by the end of 2016), with negligible treatment. The injury did not prevent Mr Do Carmo from continuing to work in his usual occupation. And it did not prevent him from going to Germany for six months to be with his family.
I assess Mr Do Carmo's injury as an injury that does not exceed 5% of a most extreme case for the purposes of s 3C of the MVA. In my view, having regard to the above matters, including the circumstances of the Accident and Mr Do Carmo's injuries, and comparable decisions, 5% is proportionate to the injuries Mr Do Carmo received as a result of the Accident.
As the maximum amount that may be awarded is $438,000 (Amount A), on my assessment, Mr Do Carmo would not be entitled to more than $21,900. However, the amount falls below the statutory threshold (Amount B: $23,000). Accordingly, no damages for non‑pecuniary loss are awarded.
Had Mr Do Carmo established that he suffered loss and damage through Ms Wishaw's negligence post the end of 2016, I would have assessed Mr Do Carmo's injury as an injury that does not exceed 10% of a most extreme case for the purposes of s 3C of the MVA, that is, $43,800. Having regard to the statutory threshold Amount B ($23,000), Mr Do Carmo's damages for non-pecuniary would equal $20,800 (this being a provisional assessment only).

P.6 Summary

No damages are awarded for non-pecuniary loss.
In the alternative, I provisionally assess Mr Do Carmo's damages for non-pecuniary loss at $20,800.

Q. Total quantum of damages

For the reasons set out above, I assess the damages to which Mr Do Carmo is entitled at $2,200, as follows:

Past economic loss

-

Future economic loss

-

Past medical treatment

$1,200.00

Future medical treatment

-

Past travel

$1,000.00

Future travel

-

Non-pecuniary loss - general damages

-

Total

$2,200.00

I therefore award Mr Do Carmo damages in the amount of $2,200.
I will hear from counsel as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
SZ
Associate to Commissioner Collins
16 MAY 2022

Past economic loss	-
Future economic loss	-
Past medical treatment	$1,200.00
Future medical treatment	-
Past travel	$1,000.00
Future travel	-
Non-pecuniary loss - general damages	-
Total	$2,200.00