Dorsett v Janeska
[2004] WADC 128
•25 JUNE 2004
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: DORSETT -v- JANESKA [2004] WADC 128
CORAM: WILLIAMS DCJ
HEARD: 22-26 MARCH 2004
DELIVERED : 25 JUNE 2004
FILE NO/S: CIV 3395 of 2002
BETWEEN: ANDREW WARREN DORSETT
Plaintiff
AND
JOHN JANESKA
Defendant
Catchwords:
Damages - Assessment - Personal injury - Plaintiff a 21 year old university student
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943
Result:
Plaintiff entitled to damages in the sum of $79,100
Representation:
Counsel:
Plaintiff: Mr D R Clyne
Defendant: Mr P R Momber
Solicitors:
Plaintiff: Friedman Lurie Singh & D'Angelo
Defendant: Peter Momber
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Commonwealth of Australia v McLean (1997) 41 NSWLR 389
Havenaar v Havenaar (1982) 1 NSWLR 626
March v E & M H Stramare Pty Ltd & Another (1990-1991) 171 CLR 506
Medlin v State Government Insurance Commission (1994-1995) 182 CLR 1
Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 501
State Rail Authority of New South Wales v Wiegold (1991) 25 NSWLR 500
Telstra Corporation Limited v Smith (1998) Aust Torts Reports 81-487
Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303
Watts v Rake (1960) 108 CLR 158
Yates v Jones (1990) Aust Torts Reports 81-009
WILLIAMS DCJ: As a result of admitted negligent driving of the defendant on 15 November 1997 the plaintiff was injured in a motor vehicle accident and he now brings this action for damages. Liability is admitted and the matter proceeds before me by way of assessment of damages.
Background
The plaintiff was born on 2 September 1976. At the time of his accident he was 21 years of age and enrolled in a Bachelor of Psychology Degree at Murdoch University.
The accident
On 15 November 1997 the plaintiff was the rider of a motorcycle travelling on Great Eastern Highway, Midland when it was struck by a motor vehicle been driven by the defendant.
The claim
By par 4 of his statement of claim the plaintiff alleges that he suffered the following injuries:
"(a) removal of spleen;
(b) serious head injuries with a sequelae of epilepsy;
(c) partial removal of right kidney;
(d) fracture of left L1 and L2 transverse processes;
(e)multiple minor injuries, lacerations, abrasions and haematomas;
(f) fracture of right distal radius at wrist;
(g) left index finger injury;
(h) loss of sexual function;
(i) depression;
(j) stress;
(k) psychological trauma."
By par 6 of his statement of claim the plaintiff alleges that as a result of these injuries he has suffered a reduction in his associated domestic activities as follows:
"(a) pain, restriction and discomfort in lower back;
(b) pain, restriction and discomfort in right leg;
(c) pain, restriction and discomfort in left index finger;
(d)pain and discomfort sitting for prolonged periods of time;
(e)pain and discomfort standing for prolonged periods of time;
(f)difficulty sleeping;
(g)severe migranes ((sic) migraines);
(h)depression, psychological trauma and distress."
The aftermath of the accident
The plaintiff was conveyed by ambulance to Swan Districts Hospital and then almost immediately, due to the suspected severe nature of his injuries, to Royal Perth Hospital.
In a report dated 20 February 1998 Dr Brian Dare at the Royal Perth Hospital reported as follows:
"This man presented to Royal Perth Hospital on 15.11.97. The history as recorded in his case file is that he was the rider of a motorbike which collided with a car. He was initially seen at the Swan Districts Hospital before being transferred to Perth. He was complaining of pain in the abdomen.
On examination, he was alert and orientated with marked tenderness and guarding in the abdomen. An abdominal CT scan showed a large amount of free intraperitoneal fluid and a lacerated spleen together with a laceration of the left kidney. There was also tenderness and swelling at the right wrist and xrays showed a fractured right distal radius. He was admitted into hospital and taken to theatre for a laparotomy. During this procedure, the spleen, which was found to be lacerated was removed and a partial left nephrectomy was also performed. His post-operative course was uneventful. The right wrist was treated conservatively in a wrist splint. He was discharged on 27.11.97.
He re-presented to hospital on 02.12.97 complaining of a painful left index finger. It is noted that he had been discharged from hospital on Aspirin but had not been taking this. It is noted that he had got a fibreglass splinter caught in his finger whilst fiddling with his plaster.
On examination, the left index finger was found to be ischaemic. He was admitted into hospital for treatment with anticoagulation and was commenced on Aspirin. It is noted that he discharged himself against medical advice on 06.12.97.
He was seen in the Outpatient clinic on 12.12.97 and 16.12.97, by which time, his abdominal injuries were settling. He was seen again on 06.01.98 and it was noted that the wrist fracture was healing. He was seen in the Haematology Department on 23.12.97 and it was felt that the ischaemia in the finger was settling and he was advised to continue with Aspirin and to cease smoking. The consultant Surgeon in charge of his case was Mr S Rao."
There is no dispute and it is my finding that he suffered all the injuries recorded in that report. For reasons which will become apparent later it is relevant to note that he discharged himself against medical advice on 6 December 1997.
On 7 January 1998 the plaintiff attended on a general practitioner, Dr Frank Fischer, due to severe pain in his penis and around the bladder with blood in his urine. He had also experienced difficulty with erections and pain during sexual functions. He was referred to Mr Stan Wisnieski a neurological surgeon.
Mr Wisnieski saw him on 10 January 1998 and admitted him to Hollywood Private Hospital for cystoscopy under general anaesthetic. The plaintiff claims as part of his particulars of injuries, loss of sexual function and this aspect will need to be explored.
He continued under the care of Dr Fischer who referred him for physiotherapy, swimming and a gym programme as the plaintiff was still experiencing pain and muscle spasm in the mid lumbar spine.
On 13 February 1998 the plaintiff suffered a seizure and was taken to Royal Perth Hospital. This was the first occasion on which the plaintiff had ever suffered from epilepsy. The cause of that seizure remains an issue in these proceedings and will need to be explored.
In February 1998 the plaintiff wrote a letter to the mother of his child. At that time he was living in Perth and the mother and daughter were living in Adelaide. The letter contained a death threat. The plaintiff says that anger and frustration arising out of the accident was the cause for what he described as a stupid mistake. According to the plaintiff he was not mentally stable.
He was charged by the police on 24 July 1998 and he was remanded in custody. On 5 August 1998, he was released on an Intensive Supervision Order for a period of two years.
Thereafter there have been a series of convictions in the Court of Petty Sessions at Midland as follows:
19 April 2000 – Possession of a quantity of drugs with the intention to sell or supply.
19 April 2000 – Possession of a smoking implement.
19 April 2000 – Cultivating a prohibited plant.
12 July 2000 – Possession of a prohibited drug.
12 July 2000 – Possession of a smoking implement.
On 4 December 2000 the plaintiff appeared in the District Court for breach of the Intensive Supervision Order and received a term of imprisonment of 15 months suspended for 15 months.
On 23 August 2001 in the District Court the plaintiff was convicted of assault occasioning bodily harm, aggravated burglary, and with intent to cause grievous bodily harm causing grievous bodily harm. The total sentence in respect to those offences was 13 years but the sentences were made concurrent and the head sentence amounted to 5 years and 6 months imprisonment. He had apparently been in custody since 7 April 2000 and the sentence was to commence from that date.
I am not told on what date he was released.
It is clear that since the date of his accident the plaintiff has spent a considerable period of time involved with the criminal justice system in this State. The plaintiff sheets all this home to his motor vehicle accident and that question will need to be explored.
Findings
In relation to the particulars of injuries my findings are as follows:
(a)Removal of spleen
There is no dispute that his spleen was removed. Although it is not pleaded I also accept that the plaintiff has a cosmetic disability arising from this in the form of a scar which commences five centimetres below the navel and travels to his sternum.
I also accept the evidence of Dr Paul Zilko, clinical immunologist, to the effect that the plaintiff's immune system appears to be normal and there is no particular medical procedure one could consider to rectify the loss. There is a slight risk that he may get a severe pneumococcal or meningococcal infection but this could usually be treated with adequate antibiotics as long as the diagnosis is made quickly. Dr Zilko did not think there are any limitations in his lifestyle activities because of the loss of the spleen.
(b)Serious head injuries with a sequela of epilepsy
Dr Ross Goodheart is a consultant neurologist. He first saw the plaintiff in July 2003 to try and improve his seizure control. At that time he formed the view that the likely cause of the epilepsy was a closed head injury. He accepted that he depended up the plaintiff's history and the general practitioner's history.
Dr Goodheart accepted that in a diagnosis of this nature the history was important. He accepted that when he made that diagnosis that he did not have the Royal Perth Hospital medical notes and he did not have the Swan District Hospital medical notes. The plaintiff had been referred to him by Dr Caddy, a general practitioner, who told him that he had suffered a closed head injury.
Dr Goodheart accepted that seizures of the kind that the plaintiff suffered could be caused by drug usage. At that time he had his suspicion that the plaintiff's seizures may be due to drug use. He did not refer to this in his report.
Dr Goodheart accepted that if there had been no head injury then the cause was idiopathic.
Dr Peter Silbert is a neurologist and head of the Department of Neurology at Royal Perth Hospital. His appointment is primarily as a clinical neurologist and epileptologist. Dr Silbert saw the plaintiff on 10 April 2003 at the request of his general practitioner. Dr Silbert arranged for various studies and tests to be carried out and came to the conclusion that the plaintiff had generalised epilepsy which was not caused by the motor vehicle accident. He described that as a form of epilepsy that a person is born with. He considered that it was completely different from trauma induced focal epilepsy. The plaintiff's epilepsy was unrelated to any motor vehicle accident and something he had always had and continued to have. Both legal and illegal drugs could bring on seizures of this type. By way of illegal drugs he included any stimulants such as amphetamines, ecstasy and cocaine. Cannabis was a more difficult proposition to decide but if it involved sleep deprivation and then that would lead towards convulsions.
I much prefer the evidence of Dr Silbert to Dr Goodheart on this aspect.
In my view Dr Goodheart initially relied on information from Dr Caddy and the plaintiff that he had suffered a head injury. In my view there is no evidence that the plaintiff suffered a head injury at the time of his accident. The matter was fully investigated by Dr Silbert and I accept his evidence in that respect.
Having made the initial diagnosis it seems to me that Dr Goodheart has maintained that position in the light of evidence to the contrary. That was so much so that towards the end of his cross-examination he was clearly hedging in order to maintain the position that he originally determined.
In my view the evidence does not support the proposition that the plaintiff suffered serious head injuries with the sequela of epilepsy arising out of his motor vehicle accident.
(c)Partial removal of right kidney
My understanding is that there was a partial removal of the left kidney. Dr Dare of the Royal Perth Hospital reported on 20 February 1998 that there had been a partial left nephrectomy performed.
On 25 March Mr Stan Wisniewski, a urological surgeon, reported that he did not think that the plaintiff will need specialist attention for his renal status as long as he has no intervening damage or injury. In normal circumstances, patients who lose one kidney can function on the other one quiet independently. In the case of the plaintiff the presence of the residual small left kidney does give some accessory renal function which stands the plaintiff in reasonable stead if the circumstances of loss of the right kidney were ever to eventuate.
(d)Fracture of the left L1 and L2 transverse processes
It is accepted that the plaintiff suffered a fracture of the left L1 and L2 transverse processes.
At the request of the defendant the plaintiff was referred to Mr R C Edibam, orthopaedic surgeon, who saw him on 17 November 1998, 12 months following his motor vehicle accident.
In his report of 17 November 1998 Mr Edibam reported that with regard to the fractures of the transverse processes it is really an injury to the lumbar muscles. It is an avulsion of the transverse processes caused by violent contraction of the spinal muscles on that side and at the time it can be a very painful injury with considerable loss of blood. However, subsequent x-rays which were done on 19 March 1998 showed that these fractures of the transverse processes had gone on to unite. His lumbar spine showed a normal anatomical variant of a transitional lumbosacral junction where the fifth lumbar segment had sacralised, which was of no clinical significance. Apart from that he had no evidence of any other bony injury to the lumbar vertebrae, they all appeared normal in shape and height and the disk spaces were all well preserved. The facet joints appeared quiet satisfactory showing no signs of any degenerative changes.
Mr Edibam carried out a clinical examination which showed that he had a fully mobile lumbar spine with little or no tenderness and no neurological signs in his lower limbs in spite of the fact that he complained of tingling in the tips of the toes.
Mr Edibam was of the view that the plaintiff had made a recovery from the injury to his lumbar spine. He certainly required no further treatment to his lumbar spine. There was no reason why the plaintiff could not go back to his university course which he was undertaking at the time of the accident.
Mr Edibam reported that there was no question of any permanent disability in respect to his lumbar spine.
Mr Edibam was asked to see the plaintiff again and did so on 2 December 2003. On that occasion the plaintiff demonstrated marked abnormal illness behaviour. He walked in with a bizarre gait and limp. On palpation he had generalised tenderness over the whole of his spine, over the thoracic spine and the lumbar spine. Even when touched gently in these areas, almost stroking the skin he complained of tenderness. Formal testing of all his movement showed marked restrictions.
Mr Edibam reported that he was unable to determine whether in fact the plaintiff had any ongoing problems so far as his musculi-skeletal injuries system was concerned because of the gross abnormal illness behaviour demonstrated during his clinical examination. Considering it was then six years since the musculi-skeletal injuries occurred and considering that the avulsion fractures of the transverse processes went onto heal he found it difficult to explain his ongoing spinal pain which then involved the whole of the spine.
The plaintiff was seen by Mr Peter Watson, a neurological surgeon, for the purposes of providing a medico legal report on 26 May 2003.
Mr Watson noted that the plaintiff walked in with a rather blunt effect. He had a limp in his right leg but on examination was able to flex at the lumbar spine to touch the mid shin. Urological examination of his lower limbs was unremarkable. Interestingly the straight leg raising was normal. The power, sensation and reflexes were all intact.
It was Mr Watson's opinion that the plaintiff had a permanent ongoing disability of the thoracolumbar spine of 10 per cent. He did not believe the plaintiff would require any surgery on his spine.
He could see no reason from his lumbar spine condition why the plaintiff should not complete his studies.
Before me the plaintiff described himself as having chronic pain to the lower back and mid back. That was the only major pain from which he suffered and that was why he was taking pain tablets.
Having seen the video film of the plaintiff taken on 14 September 1998 and the plaintiff having accepted that in that video he did not look like an invalid and that he was able to carry numerous bags that did not look light, I prefer the evidence of Mr Edibam rather than the evidence of Mr Watson with respect to his position. The video surveillance film was taken 10 months after his accident and indicates that there is nothing wrong with him. That is also what Mr Edibam found on the first occasion. Since then it would appear that the plaintiff has developed what Mr Edibam calls a bizarre gait and limp. It was also how he appeared in Court. My finding is that it is totally contrary to the video surveillance film.
I proposed to assess damages on the basis of the findings of Mr Edibam with respect to his back pain.
(e)Multiple minor injuries, lacerations, abrasions and haematomas
I accept that the plaintiff would have suffered multiple minor injuries, lacerations, abrasion and haematomas as a result of his motor vehicle accident. This would have cleared up in the normal course over a matter of weeks following his motor vehicle accident and there is no evidence that they have caused continuing problems.
(f)Fracture of right distal radius at wrist
The report of the Royal Perth Hospital of 20 February 1998 indicates that tenderness and swelling of the right wrist and x-ray showed a fracture of the right distal radius. This was treated conservatively in wrist splint.
When Mr Edibam saw the plaintiff on 17 November 1998 the right wrist was functionally normal with the full range of movement and no tenderness over the lower end of the radius. The inferior radio-ulnar joint was entirely normal and he had a full range of pronation and supination. Mr Edibam was of the view that he had made a full recovery from the injury to his right wrist and certainly required no further treatment to the right wrist.
When Mr Edibam saw him on 2 December 2003 the right wrist demonstrated no swelling or deformity.
Mr Edibam found it very difficulty to explain the plaintiff's continuing symptoms as far as his right wrist was concerned.
When he saw Mr Watson on 26 May 2003 it appears that he did not even mention his wrist.
Before me the plaintiff described his right wrist as "problematic".
I accept the evidence of Mr Edibam that the right wrist injury has made a full and complete recovery.
(g)Index finger injury
The report of Dr Dare of Royal Perth Hospital of 20 February 1998 states that the plaintiff presented to hospital on 2 December 1997 complaining of a painful left index finger. It was noted that he had been discharged from hospital on aspirin but had not been taking this. It was also noted that he had got a fibreglass splinter caught in his finger whilst fiddling with the plaster. On examination the left index finger was found to be ischaemic. He was admitted into hospital for treatment with anticoagulation and was commenced on aspirin. It was noted that he discharged himself against medical advice on 6 December 1997.
When seen in the Haematology Department on 23 December 1997 it was felt that the ischaemia in the finger was settling and he was advised to continue with aspirin and to cease smoking.
I accept that the plaintiff suffered the above injury to his left index finger but he has made a complete recovery from that. The defendant accepts that he sustained that injury and I propose to include it in my assessment of damages.
(h)Loss of sexual function
Mr Stan Wisniewski is a urological surgeon. On 9 March 1998 he reported as follows:
"This gentleman was referred to me by his general practitioner, Dr Frank Fischer, on 07/01/98. He had been involved in a motor vehicle accident in November 1997, had been admitted to Royal Perth Hospital, suffered trauma, and had undergone renal surgery.
Dr Fisher was concerned that this patient had severe pain in the penis and around the bladder, and had blood in his urine. The patient felt some ambivalence about returning to Royal Perth Hospital, and felt he needed treatment urgently, and hence his private assessment.
As this young man's voiding pattern had deteriorated I thought he had a urethral stricture, and arranged for him to have a cystoscopy with a view to undertaking an optical urethrotomy to open up the urethra.
At cystoscopy on 16/01/98 he was found to have a ureteric stent, which had been left insitu following his surgery at Royal Perth Hospital. I removed the stent, and this patient's systems started to decrease, though he still had some difficulty with erections and pain during sexual function.
The stent that was left in his kidney was a result of the surgery undertaken, and though I suspect this young man was told he had a stent he had forgotten this and could not understand that the symptoms were related to his previous intervention.
I gather Royal Perth Hospital had made arrangements for him to come back for stent removal, but he was not clear on this and in his anxiety and fear that he was losing his erections and potentially suffering long-term damage, precipitated his need for urgent intervention.
I believe his urological tract will fully recover, as from my assessment at this time. Clearly the intervention I undertook was a direct result of his previous accident and his previous treatment, and was not related to any new condition."
On 25 March 1999 Mr Wisniewski reported that the plaintiff continued to have problems with sustaining erections, which had an intermittency and sometimes function well and sometimes seems to be poor. He had a general malaise about this problem and obviously some anxieties regarding his future in that respect. He referred him to Sexual Health Clinic to have these matters assessed.
Dr Stephen Adams is a specialist in sexual dysfunction. He saw the plaintiff on 17 May 1999 and reported that the plaintiff's likely diagnosis was psychogenic erectile dysfunction.
In a report dated 16 June 2003 Dr Adams reported that he believed that the plaintiff had suffered a permanent sexual disability relating to his accident of 25 per cent. In arriving at that figure he had considered the domain of sexual identity, libido, arousal, orgasm and fertility. He believed the plaintiff to have lost over 5/20 per cent sexual identity, 5/20 per cent libido, 15/20 erectile functions. He did not believe that his fertility or ability to reach orgasm had been impaired.
Dr Adams was not cross-examined at all in relation to his evidence and I accept this assessment of the plaintiff's disability.
(i)Depression; (j) Stress and (k) Psychological trauma
These three headings seem to be at the hub of the plaintiff's case and the evidence in relation to them overlaps and I proposed to consider all three at once.
It is apparent that following the accident the plaintiff was referred to Mr Trent Falkner, a clinical psychologist, for what he described in his report on 22 April 1998 as "treatment of psychological problems".
Mr Falkner found that the plaintiff was suffering from anxiety and depression in the moderate to severe range and treated him on a number of occasions. The treatment consisted of cognitive-behavioural therapy.
However, in cross-examination Mr Falkner disclosed that the plaintiff had told him at a later stage that he was a recreational drug user. This was not disclosed initially. The drugs taken by the plaintiff included cannabis, cocaine, ecstasy and amphetamines. The plaintiff had been taking these drugs for a period of eight years, including taking drugs intravenously.
Mr Falkner accepted there were depressive and psychotic effects from taking drugs such as those. The side effects of cannabis included depression. Ecstasy had a marked depressive effect. Mr Falkner accepted that he could have been treating the plaintiff for the after effects of drug taking or a combination of both.
The plaintiff also disclosed to Mr Falkner that he was taking antidepressants before the accident.
The fact that the plaintiff failed to disclose these matters whilst being treated by Mr Falkner in 1998 in my view completely destroys his credibility.
The plaintiff saw Dr S D Febbo, consultant psychiatrist, at Hakea Prison on 30 May 2001. He also saw Dr Febbo in his rooms on 20 June 2002. At the second interview he told Dr Febbo that he used cannabis "to help me sleep" and that after the accident he used amphetamines because he found that this assisted his pain and his sexual dysfunction.
The next piece of relevant evidence in relation to this issue is that of the clinical psychologist, Ms Leonie Coxon. She saw the plaintiff on three occasions in February and March 2003 in excess of five years following his motor vehicle accident. He was referred for neuropsychological assessment. It was Ms Coxon's opinion that the plaintiff indicated a significant impairment in information processing ability due to brain disruption. It was her opinion that this was most likely due to his motor vehicle accident.
Unfortunately Ms Coxon's opinion relied on information supplied to her by the plaintiff which is clearly not correct. The plaintiff told her that following the motor vehicle accident he had been "unconscious for some days" and that indicated to her that he had suffered brain damage. He also told her that he had been released from hospital after a month (in fact 13 days) but was taken back to Royal Perth Hospital after a week due to complications including epileptic seizures.
The plaintiff told Ms Coxon that his solicitors had told him to come along for assessment and to send a report to Dr Jenkins. Exhibit 7 being a letter from Dr Jenkins (a locum with Dr Caddy) simply requests Ms Coxon to see the plaintiff regarding neuropsychological testing. It further states that he was involved in a motor vehicle accident in 1997 and has significant problems since and that his lawyers are requesting multiple consultations as part of his settlement proceedings.
Ms Coxon accepted that she relied on the history given by the plaintiff and from that history she concluded that he had a head injury and brain injury. She accepted that he did not tell her that he injured his head but he was "unconscious for some days".
It was on this history that Ms Coxon came to her conclusions in this matter. She did not obtain any other information.
Additionally the plaintiff told her that he had used cannabis as a youth. She did not include that in her history but accepted that she should have done.
She accepted that mind-altering drugs could cause "brain disruption". If the plaintiff had not suffered a head injury the cause for her results could be mind-altering drugs of an illicit nature.
There is no evidence that the plaintiff suffered a head injury and in the circumstances I do not accept Ms Coxon's findings that the plaintiff suffered a head injury and a brain injury.
Dr Peter Shannon is a consultant psychiatrist. He saw the plaintiff on one occasion only on 22 May 2003. At that time it was his opinion that the plaintiff had suffered varying degrees of depression. At that time he was taking an antidepressant Avanza in what Dr Shannon described as a therapeutic dose. Dr Shannon considered that on clinical examination the plaintiff had some problems in cognition. His depression affected his ability to concentrate. His concentration could also be affected by the medication he was taking.
It was Dr Shannon's view that the plaintiff needed ongoing medication for depression.
In cross-examination Dr Shannon accepted that none of the reports from the Royal Perth Hospital reported that the plaintiff had suffered a head injury.
Although the plaintiff presented to him in a slightly stooped manner with a significant right-sided limp he did not consider that the plaintiff had suffered any physical injury and at the time that he saw him he had not suffered any injury.
The plaintiff acknowledged to him that over the years that he had used various drugs and substances. Prior to his accident he said that these have always been for a recreational point of view. He had never had any problems with addiction to any medications he had used. After the accident he spasmodically used amphetamines. He also stated that he used marijuana quite consistently.
Notwithstanding the evidence that was put before him in cross-examination Dr Shannon would not breakaway from the proposition that he was of the opinion that the plaintiff had suffered a head injury. As I have found that the plaintiff did not suffer a head injury in the motor vehicle accident I discount Dr Shannon's opinion of being of any use in the resolution of this issue.
Ms Mandy Vidovich is a neuro-psychologist. She saw the plaintiff for the first time on 2 February 2004. At that time the plaintiff presented with a mildly unsteady gait, his speech had a slurred quality and he appeared to experience difficulty keeping his eyes open.
Ms Vidovich's conclusions were that given features of his test taking behaviour and aspects of his test performances the validity of his current neuro-psychological profile was highly questionable. The observed abnormalities across a number of his test results were unlikely to accurately reflect his cognitive capacity and were not commensurate with an organic pattern of brain damage. In addition the pattern of his test results does not make neurological sense in relation to a closed head injury. Firstly, if his cognitive difficulties were the product of a head injury they should not worsen over time as noted in the discrepancy between his current test results and those documented by Ms Coxon in 2003. Secondly, as already raised, if the results obtained at the time of the assessment with Ms Coxon some six years post his accident were due to brain injury his cognitive symptoms would have been most marked immediately following the accident, which does not appear to be the case.
Ms Vidovich was of the view that the abnormal performances within his current neuro-psychological profile would be most unlikely to be the direct result of his accident. There was also insufficient evidence to suggest that at the time of the accident he sustained a closed head injury likely to result in any organic based persisting cognitive difficulty.
Dr Peter McCarthy is a consultant psychiatrist. He saw the plaintiff on 24 February 2004.
Dr McCarthy concluded that the plaintiff was not being frank during his interview, that he offered misleading and contradictory information and curiously presented in an almost obsequious fashion, which would be quickly replaced by anger and what appeared to be a hint of physical intimidation when he was contradicted. The plaintiff appeared keen to establish that he was suffering from a significant brain injury but Dr McCarthy did not believe there was any good evidence to support that hypothesis. The plaintiff planned to return to university in 2004 and, in Dr McCarthy's view, was cognitively fit to attend university. He did not believe that there was any degree of permanent psychiatric disability, either of a psychiatric or neuro-psychiatric nature that may reasonably be attributed to his motor vehicle accident.
I accept the evidence of both Ms Vidovich and Dr McCarthy in respect to the plaintiff's positions.
In my view where there are other practitioners who have found differently to Ms Vidovich and Dr McCarthy it is on the basis of misleading information provided to them by the plaintiff. It is quiet apparent throughout the medical reports that the plaintiff has built up his story about being unconscious for a number days following the motor vehicle accident and the fact that he has suffered a serious head injury. The evidence in that respect is quite to the contrary. This aspect was fully explored by Dr Silbert, the neurologist, whose evidence I accept in full.
I accept that the plaintiff suffered significant depression after the motor vehicle accident but it is quite apparent from the report of Mr Falkner, the psychologist, that that had substantially settled by late 1998.
Thereafter any depression suffered by the plaintiff, if at all, has not been caused by the motor vehicle accident but by the lifestyle chosen to be led by the plaintiff by way of his anti-social behaviour, which has resulted in the criminal convictions that he has received. In my view no connection has been established between the plaintiff's lifestyle and his criminal convictions following the motor vehicle accident with any head injuries suffered by the plaintiff.
I accepted the motor vehicle accident has caused some stress and some psychological trauma. However, I do not accept that he has suffered a brain injury as a result of the motor vehicle accident.
The allegations in this respect were multi focused. Although it was asserted during the trial that the plaintiff had suffered a brain injury of some kind as a result of his accident, it is pertinent to note that is not even pleaded.
The plaintiff's credibility
The defendant put the plaintiff's credibility in issue during the course of this trial. The defendant's case is that the plaintiff was both before and after the accident a user of illicit substances.
This arises from a number of medical reports.
In the report of Dr Brian Dare of the Royal Perth Hospital on 14 May 1998 it is stated that the plaintiff had an 8-year history of recreational drug use including intravenous amphetamines, cocaine, heroin and daily marijuana use.
In the report of Dr S D Febbo, consultant psychiatrist, of 15 August 2002, Dr Febbo reported that the plaintiff told him that between the ages of 16 and 18 years he tried a number of drugs including "speed, ecstasy, cocaine, heroin and LSD". He said that after the accident he used amphetamines because this assisted his pain and sexual dysfunction. He said that he stopped the amphetamine use when he went to prison. In evidence before me the plaintiff denied saying those things to Dr Febbo. On that issue of creditability I accept the evidence of Dr Febbo. There is no reason for the doctor to have recorded these matters in his report unless this statement was made to him. It is also my finding that not only did the plaintiff say that to Dr Febbo but that it is true.
In evidence before me the plaintiff was very reluctant to admit any involvement with drugs. He admitted to some use of cannabis but not on a regular basis. He denied ever having used cocaine.
He denied having used amphetamines since the motor vehicle accident.
There are other issues of creditability going against the plaintiff. He denied that since the motor vehicle accident that he had girls 14 or 15 around his place. When cross-examination of this was pursued he changed his mind and stated that there was a gang of about 10 of them over at his house.
It was also his evidence that he was unable to get a driver's licence. He was shown Exhibit 5, his criminal history, indicating that on 2 June 1999 approval was granted for the re-issue of a conditional motor driver's licence.
He admitted that during the course of the proceedings when he was giving evidence he was taking a prescribed medication which he described as slow release Oxycodiene. The plaintiff accepted that the only major pain that he had at the present time was back pain.
In dealing with each of the alleged particulars of injury I have identified other aspects that reflect badly on the plaintiff's credibility. His complaints of back pain are entirely inconsistent with his 1998 video surveillance film. His attempt to create a head injury arising from his motor vehicle accident are documented in the reports. The information he has provided to certain medical practitioners is simply not true. From that premise he has then asserted that it is responsible for his epilepsy and also brain damage. The epilepsy has been fully investigated by Dr Silbert and is not accident caused. It is not even the type of epilepsy that arises from a head trauma. Of late he has been telling doctors that he had "brain damage" as a result of the accident. I have found that is not the case. The evidence in my view supports a finding that the plaintiff has been taking illicit substances both before and after his accident. Certainly the medical profession agree that a number of his complaints could be as a result of drug taking. Furthermore the plaintiff since his accident and at the present time has been taking a large number of medications (see "Heading Future Medical Expenses") when on my findings there is nothing wrong with him. A number of those medications are antidepressants.
In my view the plaintiff is not a credible witness. He has exaggerated his claim before all of the doctors and before me in court. It may well be that he is exaggerating his claim in front of the doctors in order to obtain prescriptions to drugs to which he would not otherwise be entitled.
Non-pecuniary loss
The plaintiff claims damages for non-pecuniary loss being pain and suffering and loss of enjoyment of life both past and future.
I assess that in accordance with my findings in relation to the various particulars of injury.
Pursuant to s 3C(2) of the Motor Vehicle (Third Party Insurance) Act 1943 I am required to assess non-pecuniary loss as a proportion, determined according to the severity of the non-pecuniary loss, of the maximum amount that may be awarded. The maximum amount that may be awarded for non-pecuniary loss at the present time is $249,000 (Government Gazette 23 May 2003). The maximum amount may be awarded only in a most extreme case (s 3C(3)). I am of the view that the plaintiff's non-pecuniary loss should be assessed on the basis of 20 per cent of a most extreme case. Twenty per cent of a most extreme case is $49,100.
It follows that the plaintiff is entitled to the sum of $49,100 non-pecuniary loss.
Past loss of earnings; Past loss of superannuation benefits; Future loss of earnings; Future loss of superannuation benefits
The plaintiff claims past loss of earnings, past loss of superannuation benefits, future loss of earnings and future loss of superannuation benefits as follows:
"1. PAST LOSS OF EARNINGS:
At the time of the accident the Plaintiff was in full time study doing a psychology degree at Murdoch University. The Plaintiff was however working part time earning $100.00 net per week.
But for the accident the Plaintiff would have completed the psychology degree at the end of 2001. For a period of 4 years after the accident that is for the period November 1997 to November 2001 the Plaintiff claims past loss of earnings at the rate of $100.00 net per week x 208 weeks = $20,800.00.
From December 2001 the plaintiff would have been a qualified psychologist and could have expected to receive a starting salary of approximately $750.00 net per week. From 1 December 2001 to 30 October 2003 being a period of 23 months or 100 weeks the Plaintiff claims a further amount for past earnings of 100 x $750.00 net per week = $75,000.00.
The total amount therefore claimed for past loss of earnings is $95,800.00 plus interest at 4% for a period of 6 years = $22,992.00. The total amount therefore claimed for past loss of earnings is $118,792.00.
2. PAST LOSS OF SUPERANNUATION BENEFITS:
The Plaintiff claims $118,792.00 x 7.5% = $8,909.04.
3. FUTURE LOSS OF EARNINGS:
But for the injuries sustained in the accident the Plaintiff would now be a qualified psychologist with 2 years experience and could expect to earn approximately $60,000.00 in the open labour market which equates to approximately $845.00 net per week.
The plaintiff sustained multiple injuries in the motor vehicle accident and as a result thereof has not been able to complete his psychology degree nor will he be able to do in the future.
As a result of the injuries sustained in the accident the range of work open to the Plaintiff has been reduced and his employability has been significantly reduced.
The plaintiff's dependability as an employee has been affected and his capacity to assume responsibility is limited.
The Plaintiff is currently 27 years of age and using the multiplier tables to the age of 65 and taking all of the above into account the Plaintiff's claim for future loss of earnings using the multiplier tables is 797.7 x $845.00 net per week = $674,056.50 x 80% = $539,245.20.
4. FUTURE LOSS OF SUPERANNUATION BENEFITS:
The plaintiff claims $539,245.20 x 9% = $48,532.07."
The plaintiff left school in the middle of 1992 when he was in year 11. He worked in various jobs until October 1996 when he sat the Tertiary Institutions Service Centre Special Tertiary Admissions Test. He was offered a place in the Bachelor of Psychology Programme at Murdoch University for the year commencing 1997. According to the plaintiff his intention was to obtain a bachelors degree in psychology and then to practise as a psychologist.
According to the plaintiff during the year 1997 he was earning $100 per week working for his father and was on Aust-study.
During the first semester of 1997 he passed two units. He withdrew from a third and failed the fourth. For his second semester of 1997 he failed one unit and withdrew from two others. His accident occurred towards the end of that semester and I discount his results for that semester.
During the first semester of 1998 he enrolled in three units and withdrew early. In the first semester of 1999 he enrolled in three units, passed one and obtained a credit in the other and withdrew in the third. Thereafter he has variously passed, withdrew or failed down to 2003.
His evidence was that at the present time he was not studying and had shifted to South Australia but still intended to do a psychology degree.
An examination of Exhibit (1b) being his work history documents and Exhibit 2 being his Murdoch University documents indicate that he has been a fairly ordinary student both before and after his accident.
The plaintiff suffered what I accept to be a serious accident and received serious injuries but towards the end of 1998 he had largely recovered from those injuries as I have found when dealing with those injuries.
In my view if I allow the plaintiff past loss of earnings for a period of 12 months following his motor vehicle accident there is no other evidence of any loss of earning capacity. The plaintiff has been quite capable of getting on with his life including study at university thereafter.
In my view the plaintiff should be entitled to a lump sum for the 1998 year including loss of part-time earnings of approximately $100 per week, loss of the chance to have graduated as a psychologist earlier than he might otherwise have, if at all, and any loss of superannuation that might involve. For those amounts I award the plaintiff a lump sum of $30,000.
Otherwise in my view there has been no loss under these headings.
For past loss of earning capacity, for past loss of superannuation benefits, future loss of earnings and future loss of superannuation benefits I allow the plaintiff the sum of $30,000.
Special damages
On the last day of trial I was told that special damages had been agreed as to quantum but not as to liability.
At the end of the trial I literally had dumped on me a lengthy document containing a number of lists of what is described as a "List of Outstanding Medical Expenses", "Medical Expenses", "Travelling Expenses" and "Insurance Commission of Western Australia Claim Payment Summary Form." There are literally hundreds of entries ranging from 50 cents for a bus fare upwards. The documentation is indecipherable by me. I direct the parties to seek to agree the special damages on the basis of my findings of fact.
If the parties are unable to agree special damages then the matter should come back to me to be determined on a proper basis and properly proved.
Medical expenses
The plaintiff claims medical expenses as follows:
"5. MEDICAL EXPENSES:
The Defendant to pay all outstanding medical expenses and to indemnify the Plaintiff for any refund due to the Health Insurance Commission. In addition the Plaintiff claims an amount of $2,747.49 as per annexure "A" hereto."
That schedule is headed "Receipt Listing for Associated Costs relating to Insurance Claim". I am uncertain where this document lies in relation to the schedules handed up under the previous heading of "Special Damages". I give the same direction in relation to this heading as I do in relation to "Special Damages."
Future medical expenses
The plaintiff claims future medical expenses as follows:
"6. FUTURE MEDICAL EXPENSES:
As a result of the multiple injuries sustained in the motor vehicle accident the Plaintiff is required to take a significant amount of medication on a daily basis. Annexed hereto and marked "B" is a list of medication taken and the daily as well as the weekly cost. The weekly cost amounts to $464.68.
In addition due to the loss of his spleen, the Plaintiff is required to take medication and injections on a yearly basis at a cost of $517.35 per year or $99.95 per week. The total cost of future medication therefore required is $474.03 net per week. The Plaintiff is required to take this medication on an indefinite basis and given a life expectancy for a further 50 years, using the multiplier tables the Plaintiff's claim for future medication is 846.90 x $474.03 = $401,456.00. In addition the Plaintiff will be required to see doctors, specialists and psychologists on an indefinite basis and claims a further $100,000.00. The total amount therefore claimed for future medical expenses is $501,456.00."
The first thing to note about the above schedule is that the figure $99.95 per week should read $9.95 per week.
Schedule B is as follows:
"FUTURE MEDICAL EXPENSES
| Medication | Tablets per box | Cost ($) | Daily Dosage | Daily Cost ($) | Weekly Cost ($) |
| Aspirin | 25 | 2.95 | 1 tablet | 0.118 | 0.83 |
| Epilim | 100 | 68.91 | 3 tablets | 2.87 | 14.47 |
| Oxycontin | 20 | 110.65 | 3 tablets | 16.60 | 116.18 |
| Penicillin | 25 | 11.22 | 1 tablet | 0.45 | 3.15 |
| Valium (Diazepam) | 50 | 9.22 | 4 tablets | 0.737 | 5.16 |
| Lamictal | 50 | 68.00 | 4 tablets | 5.44 | 38.08 |
| Viagra | 4 | 74.40 | 2 tablets | 37.20 | 260.40 |
| Sarapax | 25 | 11.95 | 2 tablets | 0.95 | 6.69 |
| Alepam | 25 | 9.95 | 4 tablets | 1.592 | 11.14 |
| Laxative | 750ml | 17.95 | 50ml | 1.14 | 7.98 |
| TOTAL | $464.08" |
That schedules indicates that the plaintiff takes 25 tablets a day at a weekly cost of $464.08. On my findings in relation to his medical evidence the plaintiff requires none of these tablets and I allow nothing in respect to this part of the claim.
The plaintiff also claims for vaccinations due to the loss of his spleen each year as follows:
"VACCINATIONS DUE TO LOSS OF SPLEEN
PER YEAR
| Injection | Costs ($) |
| Pneumovax | 23.10 |
| H.I.B. | 216.15 |
| A.D.T. | 23.10 |
| Antistaph | 180.00 |
| Mencevas | 75.00 |
| $517.35 |
Total weekly cost is $464 ÷ $9.95 = $474.03."
The report of Dr Paul Zilko, the clinical immunologist, would not indicate that any of this is necessary also and I disallow this part of the claim.
As to the claim for $100,000 to see doctors, specialists and psychologists on an indefinite basis, on the basis of my findings the plaintiff requires no further treatment and I allow nothing under this heading either.
Conclusions
It follows that the plaintiff is entitled to damages as follows:
Non-pecuniary loss $49,100
Loss of earnings $30,000
Special damages to be agreed or assessed -
Future medical expenses Nil
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Total: $79,100
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