Downs v Thach - [2012] WADC 144

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DOWNS -v- THACH [2012] WADC 144

CORAM: STEVENSON DCJ

HEARD: 30-31 JULY, 1-2 & 23 AUGUST 2012

DELIVERED : 11 OCTOBER 2012

FILE NO/S: CIV 2375 of 2010

BETWEEN: STEPHEN DOWNS
Plaintiff
AND
KIM LAY THACH
Defendant

Catchwords:

Damages - Assessment - Personal injuries - Motor vehicle accident - Minor rearend collision - Whether plaintiff suffered any injury at all - Alleged soft tissue neck injury - No permanent disability - Fortythree year old welfare officer - Alleged aggravation of psychiatric symptoms - No award for nonpecuniary loss, past travel expenses and future medical expenses

Legislation:

Nil

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff: Mr K S Pratt
Defendant: Mr D W Williams

Solicitors:

Plaintiff: Separovic Injury Lawyers
Defendant: WHL Legal Pty Ltd

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

Gibbs v Haoma Mining NL [2012] WADC 127
Jones v Dunkel (1959) 101 CLR 298; (1959) 32 ALJR 395; (1959) 76 WN (NSW) 278
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
MR & RC Smith Pty Ltd t/as Ultratune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110
Perry v Nottle [2003] WADC 143
Southgate v Waterford (1990) 21 NSWLR 427
Wylde v Aristondo'Arriaza (Unreported, WASC, Library No 970359, 23 July 1997); (1997) 25 MVR 539

STEVENSON DCJ:

Introduction

On 25 February 2009 the plaintiff was driving his motor vehicle home in peak hour traffic when it was struck from behind by the defendant's vehicle at a crowded intersection. Liability is admitted by the defendant. The factual issue for determination is whether the plaintiff suffered any injury as a result of the collision and, if so, to what extent. If he did, the court is required to assess, as a matter of law, the award of damages, if any, to which he is entitled.
The circumstances of the accident are not substantially in dispute.
The plaintiff was born in New Zealand on 28 March 1965. At the time of the accident he was 43 years old and working as a welfare officer at Graylands Hospital, Mount Claremont.
The plaintiff contends he suffered a soft tissue strain injury to his cervical and lumbar spine and right upper neck as a result of the accident. At trial he accepted his symptoms had resolved, except for some minor restriction and occasional pain on rotation of his head to the right. The plaintiff also alleges that the symptoms suffered immediately following the accident and the ongoing right neck pain on rotation aggravated a pre‑existing 'psychiatric disability'.
The defendant says that the accident was so minor it was not capable of causing any or any significant injury. The matter in issue is the extent of the physical injuries received by the plaintiff (if any) and whether it aggravated pre‑existing psychiatric symptoms, which the plaintiff alleges was an adjustment disorder with mixed anxiety and depressed mood.
Matters for determination include the circumstances of the motor vehicle accident, the nature and extent of the soft tissue strain injury suffered by the plaintiff (if any) and whether at any material time it curtailed his work and life activities, including playing squash. The latter issue is impacted by the fact that, on 3 July 2009, the plaintiff ceased work as a general welfare officer in the Murchison Ward at Graylands Mental Hospital, where his role was to manage the financial and material needs of patients in a locked ward and an open ward.
There is a factual controversy arising out of the medical evidence and pleadings as to what the plaintiff said to various doctors about his ability to play squash (including, that he apparently told some of them he had ceased playing squash altogether as a result of the accident) and the importance of this pastime to his wellbeing. This issue goes to the core of his credibility and reliability as a witness of truth and, in particular, relates to the issue of whether the accident in fact aggravated any pre‑existing psychiatric symptoms he had arising out of his employment or life circumstances. The plaintiff says the psychiatric illness pre‑existed the accident, whereas the defendant says there was no relevant mental illness before the accident.
Factual determinations are necessary in these respects because, according to some of the medical experts, the plaintiff indicated to them on review that he had ceased playing squash for three to four months after the accident (or an even longer period) or, alternatively, that he had been substantially curtailed in doing so. As a result of this false history, some medical experts were misled when they formed their opinions that this was causally related to the motor vehicle accident and that it was an aggravating or contributing factor to a pre‑existing psychiatric condition. There is disagreement between the psychiatric experts as to whether the plaintiff suffered any psychiatric symptoms in the period immediately following the motor vehicle accident, as opposed to later in time and after he ceased work in July 2009, or at all.
The plaintiff's opinion is that he is not presently capable of 'playing squash to the same level' that he had prior to the motor vehicle accident. He attributes this to the accident. In particular, he contends his right‑sided neck pain has affected his ability to train and play squash at a high level (or at least at a level that he subjectively believes he should be, or is capable of playing).
This issue is informed, to some extent, by the records produced by the Squash Rackets Association of Western Australia (WA Squash). As the plaintiff said, 'It's about the level of squash'. It must be observed that the plaintiff did not adduce any evidence from fellow squash players (before or after the accident) to support his proposition that but for the accident he would be playing at a higher level than he does at present (bearing in mind that he has played little squash over the preceding 12 months due to his work location in the Kimberley).
There was also no attempt by the plaintiff to adduce from others any evidence to corroborate the alleged impact on his ability to play squash at the time of the accident or thereafter (e.g. complaints of pain, observed restriction, unavailability due to injury). This is even when he knew before the commencement of the trial that his credibility and reliability as a witness would be seriously questioned by the defendant because of the false and inconsistent histories he gave to various medical practitioners, and even his own lawyers, on this topic. It is also in circumstances where the accident, on any view, was minor, and therefore in the ordinary course of events unlikely to cause serious injury (accepting of course that any accident can cause catastrophic injuries).

Pleadings

Liability for the motor vehicle accident is not in issue. The defendant accepts responsibility. What is in issue, as mentioned above, is whether the plaintiff suffered any physical injury and, if so, the nature and extent of the injury.
The plaintiff's statement of claim, filed 25 August 2010, pleads that at the material time he was the driver of a Daewoo hatchback motor vehicle, registration number 1BOH‑449, which was stationary at a set of traffic lights on the Mitchell Freeway off‑ramp at the intersection of Reid Highway, Gwelup when his vehicle was struck by the vehicle behind him (the accident).
The defendant, by her defence filed in November 2010 (and amended at the commencement of the trial), has always admitted that her negligence caused the accident.
However, the defendant further pleads that the accident was of a minor nature and not such as would be capable of causing any or any significant injury to the plaintiff. She says she was travelling at or about 5 km per hour at the time of the collision and that the damage to her vehicle was limited to a crack in the front bumper (with minor displacement).
On the contrary, the plaintiff pleads that the accident caused him to suffer personal injuries consisting of:
(a)a soft tissue strain injury to the cervical and lumbar spine and right upper back; and
(b)aggravation of pre‑existing psychiatric symptoms constituting an adjustment disorder with mixed anxiety and depressed mood.
The plaintiff says these injuries produced symptoms including: pain in the neck, upper and lower back; stiffness of the cervical and lumbar spine; limitation of movement of the cervical spine; tenderness over the right paracervical region and lower paralumbar region; soreness in the right shoulder and right upper back; psychiatric symptoms including depression, loss of appetite, anxiety, tearfulness, fragility, feelings of withdrawal and loss of confidence; discomfort; and sleep disturbance.
As a result of these injuries, the plaintiff says he underwent physiotherapy treatment, x‑rays of the cervical spine and the consumption of analgesic, muscle relaxant and anti‑inflammatory medication. He also pleads he sustained permanent physical residual disabilities of the cervical spine and upper back and aggravation of pre‑existing psychiatric disability, which produces pain in the neck and upper back; dull ache on the right side of the neck; stiffness of the neck; pain along the medical border of the right scapula; mood changes including loss of energy and motivation, loss of confidence, loss of focus and feelings of withdrawal and loss of confidence and feelings of stress and anxiety; discomfort; and sleep disturbance.
According to the plaintiff's statement of claim his injuries caused him to suffer a loss of amenities in his daily living and a reduction in his ability to partake in his pre‑accident social and recreational activities and to enjoy life generally.
The plaintiff also pleads that, as a result of the accident, he suffered economic loss and he claims past and future economic loss as a result of his alleged inability to continue in his employment at the time of the accident, namely as a welfare officer employed by North Metropolitan Area Health Service, and as a casual store person working on Saturdays for Woolworths Ltd.
On day four of the trial, the plaintiff's counsel indicated that no evidence would be adduced in relation to past and future economic loss to support an award of damages. It is noteworthy that the statement of claim, and trial proceeded, up until this point, on the basis of the plaintiff's pleading at par 18 of the statement of claim, that the plaintiff would
continue to suffer economic loss in the future. As a result of the accident injuries, the plaintiff has suffered a reduction in the perimeter of his employment in that he is unable to return to his pre‑accident employment as a welfare officer or store person in that he is unable to cope with working in environments of stress, decision‑making and managerial responsibility and in environments where there are severe, chronically mentally ill clientele, nor engage in activities which involve prolonged static postures and repetitive physical activities and as a result will continue to suffer loss of earning capacity in the future and claims a global amount of $100,000.
The statement of claim at the commencement of the trial also claimed an entitlement to past and future loss of superannuation benefits. Both these claims were abandoned in the course of the trial.
The plaintiff's schedule of damages dated 28 June 2011 (not updated prior to the trial) particularised the plaintiff's claim for damages as follows (excluding non‑pecuniary loss):
Past and future travelling expenses $3,000.00
Past and future medication expenses $3,500.00
Future general practitioner attendance expenses $4,021.00
Future specialist attendance expenses $3,046.35
Future exercise program attendance expenses $4,787.11
Past loss of earning capacity $9,460.00
Interest on past loss of earning capacity $1,135.20
Past loss of superannuation $1,016.26
Interest on past loss of superannuation $121.95
Future loss of earning capacity Global
TOTAL$30,087.87
(Plus global allowance for future loss of earning capacity)
At the commencement of the trial, counsel for the plaintiff (quite properly) abandoned the plaintiff's claim for future specialist attendance expenses and future exercise programme attendance expenses. The plaintiff's claim for damages obviously includes a claim for non‑pecuniary damages for loss and suffering arising out of the injuries incurred in the accident.
At the completion of the evidence, the matter was adjourned on the basis that the parties would confer and, if possible, agree the quantum of all damages in issue apart from the non‑pecuniary loss.
In closing submissions at the end of the trial, the plaintiff's claim for damages, in its final form, was reduced to a claim for non‑pecuniary loss and, on a 'global and modest basis', damages for past travel expenses and future medical expenses.
The defendant pleads that, if the plaintiff suffered or suffers from any of the alleged symptoms or injuries, then they do not relate to the accident but arise out of 'stress and anxiety suffered by the plaintiff arising out of his working environment' (par 8). In support of this contention, the defendant says the plaintiff suffered a breakdown as a result of working in the Murchison Ward at Graylands Hospital for a period of 18 months by reason of the stress incurred in his performance of his work duties. As a consequence of the breakdown, the plaintiff made a claim pursuant to the Workers Compensation and Injury Management Act 1981 (WA) (as amended).
The defendant puts in issue and specifically denies that the plaintiff suffered any loss, injury or damage as pleaded and denies that the plaintiff is entitled to the relief claimed or any relief.

Further and better particulars

An issue which pervades the medical opinion evidence concerns the reliability and truthfulness of the plaintiff, insofar as his instructions to the medical practitioners about the alleged impact of the accident on him and, in particular, his ability to play squash.
In this regard, the defendant sought further and better particulars of the statement of claim. The plaintiff responded on 30 August 2010 as follows:
Insofar as the Plaintiff has pleaded that the accident has affected his ability to partake in his pre‑accident social and recreational activities and enjoy life generally will the Plaintiff provide the following further and better particulars of the allegations contained in the statement of claim herein.
REQUEST 1
What pre‑accident social pursuits did the Plaintiff pursue prior to the accident and to what extent had these been reduced.
PARTICULAR 1
Prior to the motor vehicle accident, the Plaintiff played and trained for squash five (5) days per week and as a result, the majority of his social contact was through playing squash. As a result of the injuries sustained in the accident, the Plaintiff had to cease playing squash for 2‑3 months after the accident and lost social contact with his fellow players by not attending the squash courts.
REQUEST 2
What recreational pursuits did the Plaintiff pursue prior to the accident and to what extent had these been reduced?
PARTICULAR 2
As per particular 1, the Plaintiff's main recreational pursuit was playing squash. As a result of the injuries sustained in the accident, the Plaintiff had to cease playing squash for 2‑3 months after the accident and lost the enjoyment of this recreational pursuit.
The Plaintiff has returned to playing squash but not at a level that he did prior to the accident and this has reduced his recreational enjoyment.
The Plaintiff also rode a bicycle prior to the accident for recreation. As a result of the injuries sustained in the accident, the Plaintiff ceased riding a bicycle for 2 ‑ 3 months after the accident. (emphasis added)
In short, consistent with the plaintiff's advice to some of the medical witnesses, through his solicitors he indicated to the defendant and the court that he had ceased to play squash for two to three months after the accident and had lost the enjoyment of this recreational pursuit. This was false, and in the circumstances apt to mislead. The answer to the request is in complete contradistinction to the uncontroverted evidence that he played competitive squash in a competition conducted by WA Squash on 5 March 2009, 12 March 2009, 2 April 2009 (eight, 15 and 36 days respectively after the accident) and thereafter on a regular basis for the remainder of 2009, 2010 and to a lesser extent after mid‑2011 due to his relocation to the Kimberley for work.
Mr Downs gave various explanations for indicating a similar period of cessation of playing squash to some of the medical advisors he saw. Having observed the plaintiff give his evidence (on a number of occasions) during the trial, in my opinion there is no room for any misunderstanding on his part or the part of his solicitors insofar as his response to the defendant's request for further and better particulars is concerned. The representation is plain and unambiguous, and contrary to the independent evidence produced from the records of WA Squash for the purpose of the trial. The plaintiff is bound by the representation and made no attempt in evidence through his solicitors at the time to explain how such a fundamental and grave mistake or omission could have been made.
The only reasonable inference and finding open, having regard to all the evidence, including the plaintiff's own evidence at trial (and my assessment of his credibility), is that it was a deliberate attempt to mislead the defendant (and the court) presumably to inflate the plaintiff's claim in pre‑trial negotiations, on the assumption the matter would not proceed to trial. I am obliged to assume (and in any event infer) that the answers were filed in accordance with the plaintiff's instructions, there being no evidence of any irregularity or other reasonable explanation (bearing in mind that the plaintiff also indicated the same position to some of the medical practitioners). The matter is not insignificant because it is a major linchpin of the plaintiff's claim for aggravation of his alleged mental illness. It seems Dr Ng relied upon this for his diagnosis of a mental illness which was due, in part, to the plaintiff allegedly being unable to partake in his pre‑accident sporting pastime as a release for his work stressors.

Circumstances of the accident

The plaintiff and the defendant both gave evidence about how the accident happened. At the time they were each alone in their respective vehicles. No other eyewitness evidence is available. No plans of the scene or photographic evidence of the damage to the vehicles was adduced.
It is common ground that the accident occurred at the give way sign on the Mitchell Freeway – Reid Highway off‑ramp between 5.45 pm and 6.00 pm on Wednesday, 25 February 2009. It was daylight and the road was dry. The plaintiff was driving a four to five‑year‑old Daewoo Tacuma, registration number 1BOH‑449, and the defendant a Honda Integra, registration number 1CHU – 168.

(a) The plaintiff's evidence of the accident

The plaintiff was asked in examination‑in‑chief what happened (ts 14):
And what happened – what happened when you took whatever exit it was? – I remember parking, waiting for the – the traffic to clear. I think there's a 'Give Way' sign by – by memory. As I'm sort of looking from the left to right for – to take my turn to – waiting for the traffic to clear so I can get through, I was hit at the back of my car, rear‑ended by another car.
The plaintiff said he was thrown forward and that his head jolted forward. He said he could not demonstrate the motion because he did not want to aggravate anything. He said, 'The seat belt was holding me, I sort of flicked through and my head sort of snapped back and then forward' (ts 15).

According to the plaintiff, he knew his vehicle had been hit so he pulled over to the side of the road. He said he got out to check if the other driver was okay. His evidence was that he wanted to make sure she had not been hurt. He made no reference to any concern he might have been injured himself because his head had 'snapped back'. He did not say he had felt the impact and he did not describe the degree of violence involved in the collision.
The plaintiff said they checked the vehicles to see if there was any damage. He described the damage to the bumper of his vehicle as 'scratches and superficial, like, cosmetic damage …' (ts 15). He said the defendant's vehicle had hit his towbar which consisted of a tow ball and a bike rack mounting (the defendant denied there was a bike rack holder attached to the towbar).
According to the plaintiff, the defendant's 'bumper seemed pretty damaged' and 'there was a hole in her bumper'. In his opinion the bumper needed replacing or certainly fixing. He said details were exchanged because the defendant said she was going to make a claim on her insurance. At this time he had no apparent concern that he himself might have been injured.
The plaintiff said they discussed whether the police needed to be involved and, because he thought the damage to his car was 'superficial, minimal', it was not necessary. The plaintiff said he drove home: 'I was – from memory, I was shaking a little bit but managed to get home okay and just spend the rest of the night at home' (ts 17). I do not accept that the gravity and force of the collision was sufficient to cause him to 'shake' when he was driving home. This was an embellishment of the story by the plaintiff.
In cross‑examination, the plaintiff accepted that his memory of the accident was not excellent but maintained he remembered the impact. He agreed the car in front of him at the give way sign was stationary and that he was also stationary until that car moved off. In cross‑examination, he did not accept that he stopped suddenly and maintained he did not know what the defendant was doing behind him. He said the defendant's vehicle hit the towbar and the bumper of his vehicle. He rejected the proposition that he did not appreciate his vehicle had been struck by the defendant's vehicle. He proffered, that the reason why he asked the plaintiff if she was all right was because his vehicle had hit hers.
In cross‑examination, the plaintiff maintained the defendant's front bumper had a hole in it. He did not accept that it was merely cracked. He described scratches on his bumper as 'reasonably minor'. He maintained he did not know whether there was paint from the defendant's vehicle on the tow ball of his vehicle. He asserted his bumper had been hit as well as the tow ball and that there were scratches on it. He maintained the bicycle rack holder was attached to the tow ball because at the time he was riding a bicycle for exercise. His belief, in my view, is not based on memory but rather assumption. He also told a doctor that the bike rack had been damaged bolstering the seriousness and magnitude of the impact.
The plaintiff accepted in cross‑examination that at the time he did not intend to seek damages for the repair of the damage to his vehicle and was non‑responsive to questions that it was the defendant who insisted upon exchanging details.
The plaintiff was cross‑examined as to whether he had the damage to his vehicle repaired. His initial response was he did not feel the need to repair it and that he did not get it repaired. However, his evidence changed when it was put to him that he had told Dr Dare in July 2009 that he had got it repaired through a friend. The evidence was as follows (ts 44/45):
WILLIAMS, MR: Mr Downs, how much did it cost you to repair your vehicle? – I never repaired it, sir.
Why was that? – I didn't – I didn't need to repair it, sir. I didn't feel the need to fix up cosmetics with my car.
So you didn't get it repaired? – I didn't repair it, sir.
You told Dr Dare though that you got it repaired, didn't you? – I didn't pay to get it repaired, sir.
Well, that's not my question. My question was did you tell him that you got it repaired? – Sorry. I possibly did, sir.
You did. I put it to you that you told Dr Dare and, for the record, it's 30 July 2009 report page 2 and I'll read out to you what you said to him? ‑ Mm hmm.
I'll read out what is said to be – that you said to him, not – okay? – Okay.
Okay:
'He stated he does have a towbar and, at the time, there was a bicycle rack on the towbar and there was damage to the towbar and bike rack and also a small amount of damage to the plastic bumper but he stated he got it repaired through a friend.'
Did you tell Dr Dare that? – Yes.
So you did get the – your car repaired? – Yes. I – I have a friend who cleaned it up. I didn't ‑ ‑ ‑
Who is your ‑ ‑ ‑? ‑ ‑ ‑ ‑ put the – correspond (?) to her.
Who is your friend? ‑ Sorry?
Who is he? – He's a panel beater.
Now, what did he do? – He just cleaned up the bumper.
And it cost you nothing? – He's a friend, sir. Well, we – I guess we do things for each other. We're friends.
So, really, it cost you nothing to fix it because the damage to your vehicle was so minor. Correct? – No, it cost me nothing because he's a friend, sir. That's why it cost me nothing.
The plaintiff's friend was not called to give evidence on the extent of the damage to the plaintiff's tow ball or bumper as alleged by the plaintiff.
The plaintiff did not know whether his vehicle was insured for property damage at the time of the accident. The plaintiff accepted the accident was minor. Counsel for the defendant put the defendant's version of how the accident occurred to the plaintiff and he was given every opportunity to respond. He was not re‑examined on the defendant's version of events (on the basis that he was not looking behind when the collision occurred).
Even accepting the plaintiff was not looking behind when his vehicle was struck I did not find his evidence about the surrounding circumstances of the accident and its aftermath clear, cogent or persuasive. It was laboured and defensive. It lacked detail. He did not have a good memory of events and even changed his evidence about whether he had had the alleged damage to his tow ball and bumper repaired.

(b) The defendant's evidence of the accident

The defendant gave evidence of how the accident occurred and accepted full responsibility for it. She is 41 years old and employed as a tax accountant. At the time of the accident she was also driving home. It was her first motor vehicle accident. She impressed me as having a clear recollection of how it occurred (even taking account of any natural human tendency to minimise one's own culpability or seriousness of the situation). I am satisfied on the balance of probabilities that her testimony as to the circumstances of the accident was both truthful and accurate. It was uncontroverted by any other evidence.
The defendant explained in examination‑in‑chief how the accident occurred (ts 428/429):
Now, can you tell us in your own words, and start from the very beginning, exactly how the accident happened? – I was on my way home from work, coming off the off‑ramp on to Reid Highway and my car was actually – we all were at a standstill because it was peak hours and there were cars in front of us. So I was driving up and at a standstill when the first car moved forward and Mr Down's car moved forward. So Mr Down's car is actually the second car and mine was positioned at the third. And then all of a sudden he stopped and did a sudden brake and I collided into the back of his car. And at the time I was actually on my first gear and I remembered very clearly that it was around five kilometres per hour. And Mr Down's didn't even notice that I hit the back of his car, so I have to basically wave at the back and signal him to pull on the side – to the left‑hand side of the – of the road. So we all got off the car when we pulled over and then I got off the car, he got off the car so we both assessed our vehicles. And I found there was a crack on my – my front bumper and a few scratches and the – the bumper was actually displaced – slightly displaced. And then Mr Downs basically came and asked me if I was okay and I said, 'Yes, I'm fine'. As it – in return I asked him if he was okay, he said, 'He's fine'. So then we both looked at our vehicles. I – I looked at his and there were a few paint marks actually left on his towbar and then a few scratches there. And Mr Downs said, 'In that case', because there are not much damages to his car, cause only a couple of scratches and – and some paint marks he said, 'Don't worry about it'. And I said, 'No because I've got a crack on my front bumper and it's displaced, I – I have to actually going to report that to insurance so I can put in a claim to get my car fixed'. So we exchanged details and both of us okay and we drove off and this – I took off and we left the scene. And the next day I called QBE and I gave all of my details to – to QBE and explained to them the accident. And cos I said to them, I said, 'I had this accident, it was my first time. I've got to put this in to – to ring for a claim'. So I gave all my details and QBE said I'll have to go and get a couple of quotes – so – which I did. And I went to Autocoat first and then to Balcatta Panel and Paint and then, because it was my first accident I'm not sure whether I require to report this to the police. So I asked the panel beater guy. I said, 'Do I need to report this to the police?' and he said, 'Well, if it's under $3,000 and looks minor, so you don't require to do that'. So I left it as it was. And then – and then the – Mr Downs actually gave me a call and say, 'Look, I've got a call from QBE. What's this about?' and I said, "I put in a claim so I need to get my car fixed so you just need to do your part'. So I – then I left that as was and after, say, a couple of weeks and I receive a letter from the – in the Commissioner saying that I didn't report the – the accident and it come as a surprise that Mr Downs actually injured, you know (?). That's basically it, and – yeah.
In summary, Ms Thach said the accident occurred because the plaintiff stopped suddenly after his vehicle had crossed partly over the give way line at the intersection. She illustrated this in cross‑examination by drawing a sketch (exhibit 10). She (obviously) did not anticipate the plaintiff would stop at this juncture.
The cost of repair of the defendant's front bumper by Balcatta Panel and Paint in April 2009 was $883.26. The crack in the bumper was repaired, not replaced.
The defendant was cross‑examined at length about her estimate of the speed of her vehicle as 'about 5 km per hour'. She was firm in her opinion based on the fact she was still in first gear and had moved only one car length after the plaintiff had moved forward. As she said: 'I basically took his spot'.
In cross‑examination, the defendant did not accept her front bumper was 'hanging down'. She said it was displaced slightly out of position and had a crack in the plastic (not a hole as alleged by the plaintiff).
In cross‑examination, the defendant maintained she and the plaintiff both looked at the vehicles and agreed that her vehicle had hit his tow ball which, she said, was confirmed by some contact paint from her vehicle on the tow ball.
The defendant also maintained in cross‑examination it was necessary to signal the plaintiff, by waving her hands, to get him to pull over. She says he saw her waving when he looked in his rear vision mirror. The defendant thought the plaintiff had not appreciated that their vehicles had collided. It is probable that the plaintiff looked in his rear vision mirror (and saw the defendant waving) because he changed his mind about going and looked behind because he had already crossed over the line on the road. As the defendant said:
I was clawing [sic – crawling] because I was – actually he went and then he went first and then I went after him and everyone else behind me after. (ts 432)
The defendant did not accept she might have been going faster than about 5 km per hour on the basis that she was looking right and anticipating, because the plaintiff had moved off, that she could too (see ts 435/436):
And is the real reason why the accident happened is that you didn't think there were any cars coming from the right, and you just assumed therefore that Mr Downs having commenced to turn left, would continue? – I can't lay assumptions on that, sorry, but I just know that he took off and I took – I've took his spot, and then – and then he suddenly brakes and I just collided into his tow ball.
…
Right. Could the accident have happened because you didn't notice that he was about brake because you didn't notice his brake lights? – Because it was sudden. It was sudden. Because it was sudden brakes.
So sudden that you were assuming that he wasn't going to stop, do you agree with that? – It just is a sudden stop, so I just collided into the tow ball.
In cross‑examination, the defendant said the plaintiff looked in his rear vision mirror and she waved to him to tell him to pull over, because she did not think he knew their vehicles had collided.
The defendant did not see anything on or attached to the tow ball of the plaintiff's vehicle.
I find the defendant's evidence about the circumstances of the accident credible and persuasive. As a witness she was not prepared to make assumptions and only gave evidence of what she said happened (accepting of course that apparently credible witnesses can also be unreliable or just plain wrong). She impressed me as a witness of truth. There was no embellishment or movement in her evidence bearing in mind of course that she had no case to advance or real interest in the matter.

(c) Findings as to the circumstances of the accident

Issues arising out of the parties' versions of the accident include the need to make a finding about the speed of the defendant's vehicle at the time it collided with the plaintiff's stationary vehicle; whether the plaintiff appreciated that a collision had happened; and whether the point of impact of the defendant's vehicle on the plaintiff's vehicle included the plaintiff's bumper as well as his vehicle's tow ball.
Having had the advantage of observing both witnesses give their evidence, and having regard to all the evidence including the evidence of the plaintiff on other matters, I make the following findings in relation to the circumstances of the accident:
1.The accident happened between 5.45 pm and 6.00 pm on Wednesday, 25 February 2009 at the give way sign on the Mitchell Freeway – Reid Highway off‑ramp.
2.It was daylight and the road conditions were dry.
3.The plaintiff was driving a Daewoo Tacuma motor vehicle, registration number 1BOH ‑ 449.
4.The defendant was driving a Honda Integra, registration number 1CHU ‑ 168.
5.Just prior to the accident, the plaintiff's vehicle was stationary behind a single vehicle in front, and the defendant's vehicle was stationary behind the plaintiff's vehicle. Other vehicles were behind the defendant.
6.When the unrelated first vehicle moved off the plaintiff's vehicle moved forward into the space and the defendant followed taking the plaintiff's space. Both vehicles were stationary. For how long is not known.
7.The plaintiff's vehicle then moved off but stopped suddenly after it had crossed over the white line at the give way sign.
8.This was not expected or seen by the defendant who had travelled about one vehicle length forward to take up the space previously occupied by the plaintiff's vehicle at the intersection.
9.At the time of the collision, the defendant's vehicle was travelling at about 5 km per hour.
10.The plaintiff's vehicle was stationary, or very close to being stationary, at the time of impact. It is not known whether the plaintiff changed his mind about going or whether he was just positioning himself with a view to going.
11.I accept the plaintiff's evidence that he noticed and appreciated at the time that his vehicle had been struck by the vehicle behind him, but find he would not have stopped but for the defendant's hand signals. It was a busy intersection and he did not want to hold up traffic for something that he did not think had caused any damage to his car.
12.At the time the defendant thought the plaintiff did not realise her vehicle had struck his vehicle. She motioned with her hand to the plaintiff, when he looked in the rear vision mirror, to pull over to the left side of the road.
13.But for the defendant motioning to him to pull over, which he saw in his rear vision mirror, the plaintiff would not have stopped and would have continued on his journey home.
14.The first and main point of contact of the defendant's front bumper was with the tow bar on the plaintiff's vehicle, and there was secondary, but minimal, contact with the rear bumper of the plaintiff's vehicle.
15.The damage to the defendant's front bumper was caused by its impact with the towbar on the plaintiff's vehicle.
16.Both parties pulled over and, having got out of their vehicles, inspected the vehicles to see if there was any damage.
17.The only material damage to the plaintiff's vehicle was at the point of impact on the towbar evidenced by minor paint transfer from the front bumper of the defendant's vehicle. The plaintiff's towbar was not damaged.
18.There was a minor scratch on the rear bumper of the plaintiff's vehicle but the point of contact was the towbar. There was no other damage to the plaintiff's vehicle.
19.The damage to the plaintiff's vehicle was minor and cosmetic only, and was so minimal and inconsequential that it was not repaired by the plaintiff.
20.There was no bike rack plate attached to the towbar of the plaintiff's vehicle.
21.At all times the defendant intended to report the accident and claim the cost of repairs to her front bumper from her insurer (this was the reason she insisted upon obtaining the plaintiff's details and for getting him to stop).
22.The parties only exchanged details at the insistence of the defendant.
23.The plaintiff told the defendant he was fine. He did not express any concern that he might have suffered an injury (which is not to say that he had not suffered a soft tissue injury).
24.The defendant obtained two quotations for the repair of the damage to the front bumper of her vehicle.
25.The defendant's front bumper had a few scratches and a crack (not a hole) and had displaced minimally (which required new clips on repair). The cost of repair was $883.26 by Balcatta Panel and Paint.
26.The plaintiff did not have any damage to his rear bumper repaired or the paint removed from the towbar on his vehicle because it was so minimal and he was not concerned about it cosmetically.
27.The plaintiff did not think there was any need to report the accident to the police because the damage to the vehicles was so inconsequential and insignificant.
28.Both vehicles were roadworthy and driven home after the accident.
On balance, after considering all the evidence, I find the contact with the plaintiff's vehicle was so minor and any damage so insignificant that the plaintiff did not have anything repaired because there was, in essence, nothing to repair.
On any view, and as accepted by the plaintiff, it was a minor accident involving a rear‑end collision between the plaintiff's and the defendant's vehicle after both were immediately before the accident stationary behind each other at a give way sign.

Plaintiff's evidence and credibility

At the commencement of the trial the plaintiff was well aware that he had substantial credibility issues to overcome, including issues arising out of the squash evidence and damage to his vehicle. It is noteworthy that in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, the majority (Brennan CJ, Toohey, McHugh & Gummow JJ) observed:
Where facts are in dispute in civil litigation conducted under common law procedures, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have thought it in their respective interests to adduce at the trial.

I have referred to the plaintiff's evidence in the course of these reasons for decision and do not propose to set his evidence out again. However, I note that following the accident that when he saw Dr Wong, his general practitioner, he had pain in his lower neck and the base of his head down through to his neck and into the lower shoulder blade area. According to him it seemed to get worse after a couple of days, which was consistent with what he said Dr Wong said would occur. He said that within six months the lower back and shoulder had completely improved but the right side in the middle of his neck seemed to continue to give him symptoms of pain.
The plaintiff gave general evidence of his symptoms, and alleged restrictions, as a result of the injury from the accident. The plaintiff was cross‑examined at length and given an opportunity to comment on the independent and objective evidence particularly in relation to the reported histories given by him to medical practitioners and the WA Squash records. It was necessary, on occasions, to explain to the plaintiff what was required of him in answering questions for the purpose of giving his evidence.
The plaintiff's evidence was adduced at different times during the first four days of the trial. The medical evidence was interposed in order to facilitate the course of the trial. This would have been difficult for the plaintiff but in other respects it provided an extended opportunity to observe him giving evidence and to consider and assess his evidence.
In my view, the plaintiff found it difficult to give evidence. To some extent this was consistent with the reported demeanour of the plaintiff from some of the medical practitioners when taking a history from him of the alleged injuries and symptoms he sustained as a result of the accident.
It must also be remembered that, on 3 July 2009, the plaintiff commenced worker's compensation proceedings in relation to his then employment arising out of his inability to continue that employment at Graylands Hospital. It is clear, at the time, he was unable to cope in his employment and discharge his duties such that he could not continue working and he did not return to work.
As a result of those proceedings, the plaintiff was also assessed medically and it seems, in the course of those reviews, a theory emerged that his inability to cope at work might have been, in part, caused by his alleged inability to continue playing squash, which was considered a major outlet for his work‑related stressors. These psychiatric diagnoses and other medical opinions were based on the history reported by the plaintiff to various medical practitioners (and subsequently his lawyers) that he was unable to play squash for two to three months after the accident and had otherwise curtailed his squash activities.
Much of the trial was taken up in cross‑examination of medical practitioners as to what the plaintiff told them about the extent of his symptoms when reviewed, and the impact of his alleged injuries on his ability to play and continue to play squash. The related issue was the extent that they relied upon the history in their opinions as to diagnosis and prognosis.
As mentioned elsewhere, it is plain that the plaintiff did indicate to some medical practitioners that he had been unable to continue playing squash as a result of injuries sustained in the accident. He accepted as much himself at different times in his evidence. He was given every opportunity in respect of each occasion to explain what he said to the relevant practitioner. I accept it would have been difficult for the plaintiff to recall accurately each occasion and what he said.
The plaintiff proffered a number of general excuses in response to this issue. These included that he was attempting to articulate that he was not playing squash at the same level as he had been and that the practitioner had misunderstood the context of what he was saying. The plaintiff also indicated he was playing in other competitions prior to the accident and that he had been unable to continue playing in these as opposed to the competitions recorded by WA Squash in its records. The plaintiff did not adduce any evidence to corroborate this contention.
The plaintiff also complained the medical practitioners prompted him with questions and that his responses depended on his mood at the time and his understanding of the reason why he was there. He denied misleading the practitioners by indicating that he had ceased playing squash in order to advance his damages claim arising out of the accident.
Having had the opportunity over a lengthy period of time to assess the plaintiff while he was giving his evidence, I am not persuaded that he did not understand the import of his answers to the medical practitioners and or that they misunderstood his responses.
I accept there are differences in individuals as to whether or not they are good historians of events which concern them and that for various reasons people differ in this regard. However, I have no doubt that the plaintiff understood the reason why the medical practitioners sought the history from him, not only in relation to his activities, but also in relation to his alleged symptoms and that he understood what he was communicating to them in this regard. I do not accept that they all misunderstood or misinterpreted what he was saying.
On many occasions the plaintiff did not respond to a question put to him and, in my view, he was at times being deliberately evasive. On a number of occasions it was explained to him that, if he did not understand the question he should say so, but his responses continued to be non‑responsive in circumstances where, in my view, he plainly understood the purpose of the question. In my opinion the plaintiff was prepared to say only what he thought would assist his claim and that was evidenced in relation to his evidence in cross‑examination about whether or not the damage to his vehicle was repaired.
In my view, this finding is also supported (in the absence of any evidence from the legal practitioners concerned) by the plaintiff's answers to the defendant's request for further and better particulars. In particular, when he instructed his lawyers that, as a result of injuries sustained in the accident, he had ceased to play squash for two to three months after the accident and had lost social contact with his fellow players by not attending the squash courts.
This was plainly not true, as evidenced by the records of WA Squash which indicate that he continued to play competitive squash (in a sanctioned competition) within eight days of the accident and thereafter throughout 2009, 2010 and 2011. The plaintiff's evidence was inconsistent in a number of respects. For example, in relation to whether he had read any of the medical reports which he accepted had been provided to him by his solicitors throughout the course of the claim. I do not accept that he did not read the medical reports (which is not to say that he should not have been given further opportunity to read the reports when specifically questioned about them in the course of his evidence, as he was).
As mentioned, the plaintiff was well and truly on notice, before the commencement of the trial, that his credibility would be seriously challenged in every respect concerning the circumstances of the accident, his alleged symptoms and the impact on his squash playing ability (the latter being a crucial plank to his claim that injuries from the accident caused or aggravated pre‑existing psychiatric symptoms). In my view, it is significant that the plaintiff did not adduce any independent evidence to corroborate his claims, particularly in relation to his inability to play squash and the restrictions in this regard that he attributes to his accident symptoms.
As a general rule, if a party fails to call other evidence (either at all or in respect of a particular issue) it may, depending on the circumstances and the totality of the evidence, give rise to an inference that any evidence the party could have been expected to call would not have assisted that party's case, which is not to say that the evidence would have been adverse to the party.
The scope and operation of the principle in Jones v Dunkel (1959) 101 CLR 298; (1959) 32 ALJR 395; (1959) 76 WN (NSW) 278 was recently explained by Heydon, Crennan and Bell JJ in Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 [63], in the following terms:
The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn. These principles have been extended from instances where a witness has not been called at all to instances where a witness has been called but not questioned on particular topics. Where counsel for a party has refrained from asking a witness whom that party has called particular questions on an issue, the court will be less likely to draw inferences favourable to that party from other evidence in relation to that issue …
In my view it is noteworthy that the plaintiff did not, in the circumstances of the forensic issues in this case, adduce evidence from others, for example about complaint of pain and restriction experienced in his pennant squash games at the time (or the decision to sacrifice him as the number one player because of his injury on the basis he was just filling in so the team did not have to forfeit). However, I do not find it necessary to support the conclusions I have come to by the need to draw an inference that such evidence would not have helped the plaintiff's case. Such evidence, put simply, was not adduced.

The expert medical evidence

The medical evidence in this trial is important because the defendant relies upon the factual inconsistencies about the impact of the plaintiff's alleged injury on his ability to function, in particular, to play squash as a means of assessing his reliability and credibility about whether he suffered any injury and, if so, the true extent of the injury.
The defendant contends that, because the plaintiff did not tell the medical practitioners the true position when they obtained his history on review, the only reasonable inference is that he was dishonest and misled them about the extent of his symptoms with the result that the medical findings on examination and the opinions cannot be relied upon as an accurate assessment of the true position.
Quite properly a number of the doctors accepted in evidence that their diagnosis and prognosis could not be sustained in light of the conflicting evidence, in particular that the plaintiff did not have to stop playing squash for two to three months after the accident (as he told some of them). The medical evidence needs to be critically examined to discern what the plaintiff told each practitioner about the extent of his symptoms when obtaining a history, and also what they found on examination, bearing in mind there is no diagnostic medical evidence to support the plaintiff's alleged injury and restriction of movement, other than his own say so.

(a) Dr Y K (Bob) Wong

The plaintiff attended Dr Wong, a medical practitioner in general practice, for the first time on 26 February 2009, the day after the accident.
For the purpose of these proceedings, Dr Wong prepared reports dated 3 July 2009, 4 February 2010, 5 May 2010, 1 June 2012 and 18 July 2012.
In addition, Dr Wong also saw the plaintiff on 6 July 2009, at which time he was complaining of anxiety feelings and feeling stressed and depressed as a consequence of his work at Graylands Hospital where he had been employed for about seven years. Dr Wong prepared a report for the purpose of this claim dated 10 August 2009. In that report Dr Wong noted that:
Prior to his attendance on 6 July 2009 for this work relate [sic] complaint he attended the practice on 16 [sic] February 2009 for an unrelated medical problem.
I infer Dr Wong is referring to the plaintiff's attendance at his practice on 26 February 2009 in respect to the accident and that the reference to 16 February 2009 is a typographical error. In any event in his report of 10 August 2009, Dr Wong did not attribute any symptoms, or expressly refer to the accident, as being causative of the plaintiff's anxiety and stress when he examined him on 6 July 2009, which was the commencement of his work‑related claim. At the time Dr Wong was of the opinion that the anxiety reported by the plaintiff related entirely to his work duties at the Graylands Hospital and, in particular, the Murchison Ward for about 18 months. Dr Wong's medical opinion was that the plaintiff would benefit from psychological counselling (which he arranged). He also discussed the use of medications with the plaintiff, but the plaintiff was not keen to take medication at that time.
Dr Wong saw the plaintiff and examined him on a few occasions in relation to a complaint of symptoms allegedly arising out of the accident.
Dr Wong obtained a history from the plaintiff and noted, based on what he was told by the plaintiff on his first examination on 26 February 2009 (the day after the accident), that he 'was thrown forwards and jerked the neck but no head injury'. According to Dr Wong, the plaintiff also told him that, at about 8.00 pm the same evening he developed neck ache which worsened the following morning. On examination, Dr Wong found that 'flexion and extension of the neck were limited and painful and cervical rotation was limited to approximately 45 degrees to each side'. He also found 'minor low paralumbar tenderness'. The plaintiff was able to bend forwards and could touch both mid shins without difficulty. No neurological deficiency was noticed in either of the upper or lower limbs.
As a result of the history obtained from the plaintiff and his findings on examination, Dr Wong in his first report dated 3 July 2009 diagnosed a 'soft tissue injury consequent to the motor vehicle collision'. He prescribed non‑steroidal anti‑inflammatory analgesics and painkillers for his neck and low back ache. He also referred the plaintiff to a physiotherapist for mobilisation but there is no evidence in this regard (and it was not put in issue).
Dr Wong, consistent with his usual practice for such injuries, certified the plaintiff as unfit for work for three days (and also apparently on 26 May 2009, when he had an aggravation of his neck pain). At the time he did not record his prognosis, except that he should continue to improve with time.
In cross‑examination, Dr Wong confirmed that he had not been asked to certify the plaintiff as unfit for his Woolworths work on the Saturdays following the accident. Although he was unaware of the plaintiff's duties involved in this work, he assumed that the plaintiff would have been able to perform his work within any limitation caused by the injury.
In his report of 3 July 2009, Dr Wong noted that the plaintiff had responded well to treatment and, as at 16 June 2009, noted that he reported '80% improvement in his neck pain'. Also at this stage Dr Wong noted that the plaintiff's low back pain had since resolved. He described any remaining symptoms as 'minimal right‑sided paracervical tenderness and minor residual right cervical rotation'. Dr Wong also noted that the plaintiff had indicated that he had not needed to take any more analgesics and, importantly, that he was managing his usual work duties without any restrictions. It is noteworthy that on 6 July 2009, three days after he prepared his report, the plaintiff consulted Dr Wong in relation to mental issues surrounding his ability to continue his employment at Graylands Hospital.
In his report of 4 February 2010, Dr Wong noted that on his last visit to the practice on 21 September 2009, the plaintiff reported '85% improvement in his neck pain, with some residual minor background ache'. He also confirmed his previous finding that the plaintiff's low back ache had since resolved.
On 21 September 2009, on examination of the plaintiff, Dr Wong noted that cervical flexion and extension were normal. He also noted cervical rotation was 'minimally restricted to approximately 75 degrees to the right, as compared with approximately 90 degrees to the left'. In his report Dr Wong noted the plaintiff said 'he plays competitive squash and was keen to resume his sporting activities'. In cross‑examination, notwithstanding the content of the report, Dr Wong said at this time he understood the plaintiff was saying the accident injuries had restricted his ability to play squash well and that he could not do so to full capacity.
In cross‑examination about the history obtained on 21 September 2009, Dr Wong said the plaintiff told him that he was a very keen squash player, played at a high level and competed in State and, to some extent in international championships. Dr Wong maintained in cross‑examination that the plaintiff only said 'he couldn't do it to his full capacity. He didn't say he was totally incapacitated from playing, no'. According to Dr Wong at this time, he understood the accident injury had only restricted the plaintiff's ability to play squash well.
Dr Wong next saw the plaintiff on 29 April 2010. Apparently he complained of 'ongoing mild background neck ache, particularly on the right side', and the pain was allegedly aggravated by turning his head to the right. On examination, Dr Wong noted in his report of 5 May 2010 that rotation of the neck was limited by pain (reported by the plaintiff) to about 75 degrees as compared to about 90 degrees to the left. Importantly, he noted 'there was no muscle wasting or weakness in both shoulder girdles or upper limbs and that tendon reflexes were normal and equal'. He found flexion and extension of the plaintiff's neck were within the normal range and pain‑free.
Because of the plaintiff's complaint of ongoing neck ache, on 29 April 2010 Dr Wong arranged a cervical spine x‑ray, which was performed on 3 May 2010. The report of SKG Radiology discloses that lateral alignment of the plaintiff's cervical spine appeared normal and that there were no features of instability. Also no bony injury was seen to involve the vertebral bodies and disc height appeared reasonably well preserved. The report also states that the facet joints appear normally aligned and no significant bony foraminal stenosis was identified. No destructive bony lesion was identified, pedicles appeared intact and no significant bony cervical ribs could be seen. In summary, there was no evidence of any bony injury and no significant disc space narrowing was identified. In the course of examination 'mild restriction of neck movement' was noted. This would have been reported by the plaintiff himself in the course of the x‑ray process.
In his report of 5 May 2010 Dr Wong noted, based on what the plaintiff said on review on 29 April 2010, the plaintiff was using about five anti‑inflammatory tablets a week for his neck ache.
Part of the history obtained by Dr Wong on this occasion (29 April 2010, over a year after the accident) was that the plaintiff had 'been able to resume playing squash but has not been playing competitively like he used to before his motor vehicle accident'. Dr Wong confirmed in cross‑examination that he noted what the plaintiff told him and that he had accurately reflected this in his report.
It should be observed that the plaintiff's own statement plainly suggests that at some stage following the accident he had been unable to continue playing squash, whether competitively or socially, which is contrary to other evidence adduced at trial. WA Squash records indicate that the plaintiff in fact played competitive squash on the evening of 29 April 2010, the same day that he saw Dr Wong. He obviously did not indicate to Dr Wong that he was playing competitive squash that evening because, if he had, I am certain Dr Wong would have made a note of it and in any event clarified what he recorded in his report of 5 May 2010 in this regard.

Each case must of course be determined on its own facts and circumstances. A similar result, where the plaintiff was unsuccessful, occurred in Perry v Nottle [2003] WADC 143 [31].
The Civil Liability Act 2002 (WA) (CLA) does not prevent or limit the awarding of damages. Parts 1C, 1E and 2 (other than s 10A and div 4) of the CLA do not apply to damages to which the MVA applies. Section 10A of the CLA provides that a court may, in determining damages for non‑pecuniary loss, refer to earlier decisions of that or other courts for the purpose of establishing the appropriate award in the proceedings (i.e. comparable cases): see MR & RC Smith Pty Ltd t/as Ultratune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110 [115] ‑ [126].
The only comparative case referred to by the parties was Gibbs v Haoma Mining NL [2012] WADC 127 where the plaintiff's non‑pecuniary loss was assessed at 7.5% of a most extreme case. The plaintiff was found to have suffered neck, shoulder and arm pain for the previous 8 1/2 years, with a likelihood of continuing to do so to some extent in the future, in circumstances where the trial judge found the plaintiff's pain and suffering to be 'reasonably mild'. As mentioned, each case must be assessed on its own circumstances. In my view, even accepting the plaintiff's alleged symptoms from the minor soft tissue injury said to have been caused by the accident, the amount to be awarded would be less than Amount B (the threshold).
In summary, there being no injury caused by the accident, there is no basis for an award of non‑pecuniary loss. Even accepting the plaintiff did suffer a minor soft tissue injury and the symptoms alleged by him, it would still not result in an award for non‑pecuniary loss because the court is precluded from awarding damages as the proportion is less than 5% of the maximum amount that may be awarded in a most extreme case.

(b) Past travel expenses

The plaintiff's schedule of damages claims $3,000 for past and future travelling expenses. No particularisation of the plaintiff's claimed past travel expenses is provided. The plaintiff gave general evidence of driving to see his general practitioner and for some physiotherapy. There is no direct evidence of the plaintiff's cost and frequency of attendances on a physiotherapist. It is relevant that, from 3 July 2009, the plaintiff also attended his general practitioner about his work‑related claim and associated mental health issues. This is likely to be the real reason for his attendances.
In view of my primary finding, it is not necessary to make an assessment. According to the plaintiff's closing written submissions, the assessment should be made 'on a global and modest basis' based on the plaintiff's general evidence of his attendances. On this basis, and accepting for the purpose of a provisional assessment that the plaintiff did suffer a soft tissue injury as a result of the accident, I would have allowed $1,000.

(c) Future medical expenses

The plaintiff's schedule of damages claims $3,500 for past and future medication expenses, and $4,021 for future general practitioner attendance expenses. The plaintiff's claim for future specialist attendance expenses and future exercise programme attendance expenses was abandoned at the commencement of the trial.
The plaintiff has not particularised his claim for future medical expenses. Based on the medical evidence at trial, I understand, at best, the plaintiff seeks an award to permit occasional attendance on his general practitioner to obtain medication for pain relief from his right‑sided neck symptoms, together with the cost of such medication.
In his report of 1 June 2012, Dr Wong noted that the plaintiff is not incapacitated to any significant degree and his need to take analgesics is minimal because his symptoms have plateaued. However, that was before he was made aware of the plaintiff's actual squash playing activities. After he was made aware of this evidence, in his report of 18 July 2012, Dr Wong noted that the plaintiff's low back injury had resolved completely but that he still reported experiencing minor neck discomfort. In his opinion, the plaintiff did not require any medical treatment and was able to work without any restrictions. Doctors Dare, Silbert and Mander all share, in general, the same view. Dr Harper conceded in cross‑examination that the plaintiff did not require any further medical treatment. In cross‑examination, Dr Ker accepted that any future anti‑inflammatory medication required by the plaintiff might arise from the ordinary stresses and strains of work and sporting activity (as opposed to symptoms from the alleged injury).
The plaintiff's evidence in relation to the need to use anti‑inflammatories was general and non‑specific as to cause and frequency. It was not corroborated in any way, for example no receipts were produced confirming he had in fact purchased anti‑inflammatory medication and when. I infer, given the amount of squash he played after the accident and the activity he undertook to keep himself fit for his pastime, that he would have from time to time experienced aches and pains. This is part of the aging process and evidence is not required for the proposition that it takes longer for the body to recover from injury as one gets older.
Even accepting the plaintiff suffered a soft tissue injury as a result of the accident, the preponderance of the medical evidence, which I accept, is that any symptoms would have abated by the time of the trial, some 2 1/2 years after the accident. The legal and evidentiary burden is on the plaintiff to establish the loss claimed on the balance of probabilities. Accepting the plaintiff was injured as a result of the accident, the plaintiff has not proved on the balance of probabilities that any future anti‑inflammatory medication is required as a result of any alleged symptoms arising out of injury caused by the accident. No other medical treatment is contended for by the plaintiff.

Conclusion

Based on the evidence adduced at trial, I am not persuaded, on the balance of probabilities, that the plaintiff suffered a soft tissue injury of a musculo‑ligamentous nature as a result of the motor vehicle accident on 25 February 2009.
If I am wrong in this regard, and he did suffer an injury, it caused minimal discomfort for a few days only and, based on the medical evidence, would have resolved within three to six months in any event. Even though the plaintiff obtained a medical certificate that he was unfit for work for two days following the accident as a welfare officer at Graylands Hospital, he worked his Woolworths part‑time job for the full day on the Saturday following the accident.
If there had been any serious or significant symptoms from injuries sustained in the accident, the plaintiff would have reduced his work and competitive squash playing activities immediately following the accident. He did not do so.
There is no evidence that the plaintiff's pursuit of his sporting activity of squash was disrupted or affected by the accident. The evidence of his competitive squash activities is uncontroverted. He continued to play competitive squash uninterrupted by the accident from eight days after the accident. It was not proved that he missed any games as a result of the injury he allegedly sustained. There is no evidence from any witness at any time after the accident, that he ever played squash with an observable or discernable disability or restriction, or that he complained of any such difficulty, or that he did not play when asked because of injury.
Having regard to the circumstances of the accident, my findings about the plaintiff's evidence of his alleged symptoms and restrictions, and the medical evidence, the plaintiff has not proved on the balance of probabilities that he suffered an injury as a result of the accident. If he did suffer an injury, I accept the preponderance of the medical evidence that any symptoms would have resolved within a short period of time, within six months of the accident and certainly by the time of trial. All the medical evidence was to the effect that any injury was a minor soft tissue injury.
The plaintiff has not proved he is entitled to an award of damages. Even if he did suffer the alleged injuries, s 3C of the MVA prevents the court, as a matter of law, from making an award of damages for non‑pecuniary loss.
The plaintiff's action must be dismissed.