Draoui v Le; Draoui v Then; Draoui v Cock (No 3) - [2020] SADC 23

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
DRAOUI v LE; DRAOUI v THEN; DRAOUI v COCK (No 3)
[2020] SADC 23
Judgment of Her Honour Judge Deuter
19 March 2020
TORTS - NEGLIGENCE - ROAD ACCIDENT CASES - ACTIONS FOR NEGLIGENCE
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - METHOD OF ASSESSMENT
EVIDENCE - COURSE OF EVIDENCE AND ADDRESSES - COURSE OF EVIDENCE - REOPENING CASE AND RECALLING WITNESSES
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - TRIAL
The plaintiff claimed damages for personal injury and loss sustained in three separate motor vehicle accidents. Those accidents occurred on 3 December 2001 (the first accident); 4 January 2011 (the second accident) and 26 February 2011 (the third accident).
Liability denied by the respective defendants in relation to the first and second accidents. Liability for the third accident was admitted.
In relation to all three accidents, causation of any injury and loss, and the quantum of any loss proved to have been caused by the accidents was challenged by the defendants.
The plaintiff was self-represented at trial and called no evidence. Trial over 27 days. Procedure in relation to a self-represented plaintiff discussed.
A late application made by the plaintiff to re-open his case after defendant had completed address and judgment reserved. Application refused.
Held
1. The plaintiff's application of 23 September 2019 to re-open his case is refused.
2. The plaintiff failed to prove that the first accident was caused by the negligence of the defendant, Mr Le.
3. The plaintiff's action in relation to the first accident (DCCIV-12-429) is dismissed.
4. The plaintiff failed to prove that the second accident was caused by negligence of the defendant, Mr Lock (incorrectly described as Mr Cock).
5. The plaintiff's action in relation to the second accident (DCCIV-15-100) is dismissed.
6. Assessment of the plaintiff's loss and damage as a consequence of the third accident undertaken.
7. Judgment in favour of the plaintiff in action DCCIV-12-1901, relative to the third accident in the sum of $4,340.00.
8. The court to hear the parties as to any consequential orders and costs.
Criminal Law Consolidation Act 1935 (SA) s 269H; District Court Civil Rules 2006 Rule 4, Rule 156, Rule 160; District Court Civil Supplementary Rules 2014 Rules 155, 156,157, 158, 159 and 160; Civil Liability Act 1936 (SA) s 51, s 52, s 56, s 58 ; Evidence Act 1927 (SA) s 34c, referred to.
Browne v Dunn (1893) 6 R 67 (HL); Thomas v Van Den Yssel (1976) 145 SASR 205; Matthews v Whites Hill SA Pty LTd (2019) SASC 78; Aon Risk Serives Australia Ltd v Australia National University (2009) 239 CLR 175; Channel 7 v Manock (2010) SASCFC 59; Mayne v Robbins [2009] SADC 58; Urban Transport Authority of NSW v Nweiser (1992) 23 NSWLR 471; Hughes v Hill [1937] SASR 285; Smith v NSW Bar Association (1992) 176 CLR 256; Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; Spotlight Pty Ltd v NCON Australia Ltd (2012) 46 VR 1 ; Sali v SPC Limited (1993) 116 ALR 625; Fox v Percy (2003) 214 CLR 118; Viet Hong Lieng v Delivers [2002] NSWCA 170; Draca v Silva [2012] NSWCA 312; State Government Insurance Commission v Fiorenti [1991] SASC 2897; Richardson v Armistead [2000] VSC 551 at [36]; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 at [119]-[120]; Farrington v Sampson [2013] SADC 17; Figallo v Lam [2001] SADC 154, applied.
R v Draoui [2008] SASC 188; Draoui v Le & Anor [2019] SASC 114; Draoui v Le, Then and Cock [2019] SADC 108; Draoui v The Queen [2009] HCA; Draoui v Police [2010] SASC 141; Draoui v District Court of South Australia & Anor [2010] SASC 151; Draoui v District Court of South Australia [2011] SASC 11; Draoui v District Court of South Australia & Anor [2011] SASCFC 15; Draoui v District Court of South Australia [2011] HCASL 186; Draoui v The Queen (No.2) [2014] SADC 103; R v Draoui [2015] SASCFC 50; Draoui v Return to Work SA [2017] SAET 135; Draoui v Return to Work SA [2019] SAET 94; Draoui v Le & Ors [2019] SASCFC 105; Draoui v Le, Then and Cock [2019] SADC 108; Draoui v Le, Then and Anor [2019] SADC 85, discussed.

DRAOUI v LE; DRAOUI v THEN; DRAOUI v COCK (No 3)
[2020] SADC 23
Contents
Introduction
Contentions
First Accident
Second Accident
Third Accident

Conduct of the Trial
Consideration
The Trial
The First Five Days
Plaintiff’s Mental Health and Capacity – An Inquiry
Continuation of the Trial
The Plaintiff’s Credibility

Plaintiff’s Application to re-open
Findings on Liability
First Accident
The Evidence
Consideration of the Evidence
Conclusions on the Evidence
Finding on Liability – Dismissal of Claim
Second Accident
The Evidence
Finding on Liability – Dismissal of Claim
Third Accident

Damages
The Evidence - Documents
The Plaintiff’s Evidence
Background
First Accident - Injuries
Second and Third Accidents
Cross-examination
Observations
Evidence of Medical Witnesses – Physical Injuries
Dr Chris Moy, General Practitioner
Dr Geoffrey Graham, Occupational Physician
Dr John Lipert, Orthopaedic Surgeon
Dr Gary Champion, Rheumatologist
Dr David Worth, Physiotherapist (PhD)
Dr Robin Jackson, Orthopaedic Surgeon
Dr Glen McCulloch, Orthopaedic Surgeon
Evidence of Medical Witnesses - Psychiatric Injury
Dr Marcus Bem, Psychiatrist
Dr Anthony Davis, Psychiatrist
Mr Mark Reid, Neuropsychologist
Medical Evidence – Findings
The Plaintiff
Medical Evidence
Evidence of Economic Loss
Plaintiff’s Evidence
Ms Hilary Orr – Forensic Accountant
Findings

Assessment of Damages – Third Accident
Consideration of the Evidence
Heads of Damage
Non-Economic Loss
Loss of Earning Capacity/ Economic Loss
Gratuitous and Paid Services
Future Medical Needs
Past Medical expenses and other Special Damages
Interest
Conclusion

Orders
Introduction

The plaintiff, Mr Abdou Draoui claims damages for personal injuries and consequential loss alleged to have been caused as a result of three motor vehicle accidents. He was born on 28 December 1948, and at trial was 70 years of age.
By an order of 23 February 2015, the three motor vehicle accident claims were to be heard together at one trial. All three accidents involve defendants insured by the Motor Accident Commission pursuant to policies of Compulsory Third Party (‘CTP’) Insurance. At trial, the defendants were all represented by one counsel, instructed by one firm of solicitors. Unless otherwise identified, reference to defendants is reference to all defendants in the three actions.
The first motor vehicle accident occurred on 3 December 2001 when the plaintiff was driving along Port Road, West Croydon towards Port Adelaide. The plaintiff’s case is that his car was hit from behind by the defendant. Liability for this accident is disputed by the defendant (‘First Accident’).
The second accident occurred on 4 January 2011 when the plaintiff was a passenger in his daughter’s car being driven by his wife. The accident was a rear end collision. Liability is in dispute relative to the defendant who has been sued in the proceedings (‘Second Accident’).
The third accident occurred on 26 February 2011 when the plaintiff was a passenger in his daughter’s car. This was also a rear end collision. Liability for this accident has been admitted by the defendant (‘Third Accident’).
In relation to all three accidents, causation of any injury and loss, and the quantum of any loss proved to have been caused by the accidents came under strong challenge by the defendants.
The plaintiff was not represented at trial and did not call any witnesses, other than himself, to give evidence to support his claims. The trial, including a late application by the plaintiff to re-open his case, proceeded for twenty-seven sitting days between 8 July 2019 and 29 October 2019. There were multiple delays caused by the plaintiff’s health issues; applications made by the plaintiff to appeal orders made by me and to re-open his case, and to accommodate changing timetables for the defendants’ witnesses. To give context to my consideration of the issues, it is necessary to set out in detail the basis of the plaintiff’s three claims, and the manner in which the trial was conducted.
Contentions
First Accident
The plaintiff’s case is set out in the Third Statement of Claim filed on 26 March 2015.[1] He pleads that he was involved in a motor vehicle accident when his Land Rover was hit from behind by the defendant’s vehicle, as he (the plaintiff) changed lanes. The plaintiff alleges that the defendant, Mr Le, was negligent in failing to keep a proper look out and driving at an excessive speed.
[1] FDN 77 DCCIV-12-429.
The plaintiff claims that as a result of the first accident he suffered non-defined injuries and pain to his cervical spine, thoracic spine, lumbar spine and right shoulder, headaches, sleep disturbance and psychological and/or psychiatric injuries. The plaintiff pleads that as a result of his injuries he required medical treatment and that he has suffered a loss of the full and efficient use of the spine and right shoulder. This has led to him suffering pain and loss of amenities of life; economic loss and loss of earning capacity; and losses related to the cost of medical treatment. The injuries also created a need for him to be provided with voluntary care services from his wife and gardening and maintenance services. The plaintiff pleaded a loss of capacity to engage in relationship and sexual activities. The plaintiff’s economic losses include an alleged restricted capacity to engage in business activities, particularly the development of an import/export business.
The plaintiff was not cross-examined on his pleadings as he refused to return to the witness box so this could occur. Detail of that refusal is set out later in these reasons.
By his defence[2] the defendant pleaded that the first accident occurred as the plaintiff was attempting to move lanes and failed to give way to his vehicle. The first accident is pleaded to be entirely the plaintiff’s fault. The defendants dispute that the plaintiff suffered any injury or loss as a result of the first accident, alleging multiple pre-existing injuries and post-accident intervening events.
[2] FDN 78 DCCIV-12-429.
Second Accident
The plaintiff’s case is set out in Particulars of Claim filed in the Adelaide Magistrates Court on 28 June 2013.[3] He pleads that he was involved in an accident when a passenger in a car driven by his wife. As their car slowed at an intersection, a motor scooter driven by the defendant, Mr Lock, collided with the rear of the car. The plaintiff pleads that the defendant was negligent in that he failed to keep a proper look out and drove at an excessive speed. I pause to note that at trial it was agreed that the defendant’s surname is in fact Daniel Peter Lock and not Daniel Peter Cock. Mr Lock gave evidence and confirmed this. The plaintiff made no application to amend the pleadings in this regard.
[3] FDN 1 DCCIV-15-100.
I now make a formal order amending the name of the defendant in the second accident, being the claim in District Court Action No 100 of 2015, to Daniel Peter Lock.
The plaintiff alleges that as a result of the second accident he suffered injuries to his back, neck, right shoulder and lower back requiring medical treatment. His injuries restricted his earning capacity generally, but particularly duties related to his activities as a business man. The plaintiff also pleaded that he suffered a reduced capacity to engage in social, recreational and domestic duties and a reduced capacity to enjoy relationships including sexual relationships. He alleged symptoms of pain and discomfort.
Again, the plaintiff was not cross-examined on his pleadings due to his refusal to return to the witness box for cross-examination to be completed.
By his defence[4] the defendant (Mr Lock) pleaded that prior to the second accident, he was stationary on his scooter behind the plaintiff’s car when he was struck from behind by another vehicle and pushed forward into the rear of the plaintiff’s car. Negligence is denied. The defendants also dispute that the plaintiff suffered any injury or loss as a result of the second accident, alleging multiple pre-existing injuries and events impacting the plaintiff’s life before the accident.
[4] FDN 7 DCCIV-15-100.
Third Accident
The plaintiff’s case is set out in a Statement of Claim filed on 28 June 2013.[5] He pleads that he was involved in an accident when he was a passenger in a car driven by his daughter that was stationary at traffic lights. It was struck from behind by a car driven by the defendant, Ms Then. He alleges that the defendant was negligent in failing to keep a proper lookout, not taking action to avoid the collision and driving at an excessive speed.
[5] FDN 2 DCCIV-13-1901.
The plaintiff pleads that as a result of the third accident he suffered an aggravation of the previous injuries to his right shoulder, neck and lower back in addition to new injuries to his left leg and right knee. These injuries caused or contributed to ongoing significant headaches and migraines, pain and sleeplessness. As a result of his injuries the plaintiff required medical treatment, and suffered a restricted capacity to perform duties required at home or in any business. He alleges a loss of earning capacity, including a loss of capacity to engage in the usual activities of a businessman. There is pleaded a reduced capacity to engage in social, personal and sexual relationships, and to engage in social, recreational and domestic activities. The plaintiff pleaded that as a result of his injuries he required the gratuitous assistance of his family.
The plaintiff could not be cross-examined on his pleadings, due to his refusal to return to the witness box.
Liability for the circumstances of the third accident was admitted in a Defence filed on 13 June 2014.[6] However, as with the other two accidents, all aspects of the plaintiff’s claims of injury and loss were denied and challenged, by the defendants.
[6] FDN 7 DCCIV-13-1901.
Conduct of the Trial
The plaintiff was unrepresented throughout the trial. The matter has a very long history with proceedings commenced in relation to the first accident in the Adelaide Magistrates Court on 3 December 2004. Annexed to this Judgment as Annexure I, is a chronological history of the proceedings from 3 December 2004.
Although the plaintiff was not represented at Trial he has had solicitors and counsel acting for him at various times since the commencement of the first proceedings. He was represented by Hume Taylor & Co when those proceedings were filed. On 27 October 2010, Hamdan Lawyers filed a Notice of Change of Solicitors. This was followed by Simon Flower of Flower & Associates filing a Notice of Acting on 7 February 2012. Mr Flower was still acting for the plaintiff when proceedings were instituted in relation to the second accident on 28 June 2013, and the third accident on the same date.
The plaintiff has also been represented by other firms of solicitors in relation to these proceedings. During the trial, he mentioned several criminal lawyers and Georgiadis & Co. The District Court files record that the plaintiff was represented by Mr Gary Inglis of Gary Inglis & Co from January 2015 and Tindall Gask Bentley from August 2015. On 15 March 2017, the plaintiff filed a Notice of Acting in person and he was either unwilling or unable to obtain representation from that date, including for the conduct of the trial.
Before the trial started on 8 July 2019, the plaintiff sought an adjournment by an application filed on 22 May 2019. The basis of this application was that he was not ready for trial as he did not have legal representation or the funds for such representation, and that as he was not fluent in English, he was at a serious disadvantage against the defendants’ legal team. I refused that application for the reasons set out in Draoui v Le, Then and Cock [2019] SADC 85 (‘the Adjournment Decision’). An application to stay my decision that the trial proceed was refused by Kelly J in the Supreme Court on 3 July 2019.[7]
[7] Draoui v Le & Anor [2019] SASC 114.
As set out above, it had been made clear well before trial that the plaintiff’s case was to be challenged at every level by the defendants. The plaintiff faced some challenges in not being legally represented for over two years prior to trial. The plaintiff is Palestinian and came to Australia 45 years ago. English is not his first language. The plaintiff made multiple submissions during the trial that he could not read or understand English. However, in presenting his case, both at the bar table and whilst giving evidence, I found that he had few difficulties in understanding even the most complex concepts. I am satisfied and I find that the plaintiff understood the evidence as it was put to him, and what was being asked of him when in cross-examination (for the period he agreed to be in the witness box). He frequently argued with the defendants’ counsel and stated that counsel was trying to trick him. He understood the purpose of cross-examination and that his evidence and his case was being tested.
In relation to the plaintiff’s understanding of English, I find it relevant that the plaintiff never required the assistance of an interpreter at medico-legal assessments over the long history of this matter, nor did he ever seek, or require an interpreter during multiple interlocutory hearings before this court. I am also aware that the plaintiff has been involved in a number of other legal proceedings in courts in South Australia[8] and conducted proceedings in the South Australian Employment Tribunal at first instance and on appeal without legal representation.[9] The plaintiff confirmed his involvement in these proceedings from the bar table.[10]
[8] R v Draoui [2008] SASC 188; Draoui v The Queen [2009] HCA T78; Draoui v Police [2010] SASC 141; Draoui v District Court of South Australia & Anor [2010] SASC 151; Draoui v District Court of South Australia & Anor [2011] SASC 11; Draoui v District Court of South Australia & Anor [2011] SASCFC 15; Draoui v District Court of South Australia [2011] HCASL 186; Draoui v the Queen (No.2) [2014] SADC 103; R v Draoui [2015] SASCFC 50.
[9] See Draoui v Return to Work SA [2017] SAET 135 and Draoui v Return to Work SA [2019] SAET 94.
[10] T28.
Since 2017 the plaintiff, while self-represented, has filed several applications in this Court and the Supreme Court seeking various orders. These applications include:
·     an application to adjourn this trial supported by two affidavits filed on 22 May 2019[11] and 6 June 2019; [12]
·     an application to have Dr Bem provide a report in relation to his mental health, supported by an affidavit; [13]
·     a Notice of Appeal and an Application and Affidavit filed in the Supreme Court on 27 June 2019 to appeal my refusal to adjourn the trial, and/or that my order be stayed;[14]
·     an application filed in the Supreme Court for permission to appeal my decision refusing to adjourn the trial and Kelly J’s refusal to stay my order that the trial proceed, supported by an affidavit filed on 15 July 2019;[15]
·     an application in the Full Court of the Supreme Court appealing the refusal by Kelly J to grant permission to appeal the previous decisions, filed on 29 August 2019^;[16]
·     an urgent interlocutory application and affidavit filed on 23 September 2019 seeking to re-open his case, after I had closed his case, heard the address of the defendants, and reserved judgment.
[11] FDN 120 & FDN 121.
[12] FDN 124.
[13] Filed 24 July 2019.
[14] SCCIV 790 of 2019 FDN 1 and FDN 2.
[15] SCCIV 790 of 2019 FDN 3 and FDN 4.
[16] SCCIV 790 OF 2019 FDN 5.

I find that the extent of the applications and appeals filed by the plaintiff display an understanding of complex legal concepts. In his affidavit affirmed on 27 June 2019 in support of his Notice of Appeal,[17] he stated at paragraph 14:
I believe her Honour did not give any, or sufficient weight, to the circumstances of my case and the difficulties, and the severe prejudice, I will face in being required for a complex case without legal representation in the conduct of the trial. Although the matter has a long history the inconvenience incurred by the defendant can be remedied by the costs orders made to date. There has been no damage to the defendants’ case, other than the inconvenience of the passage of time.
[17] SCCIV 790 of 2019. FDN 2.
In the plaintiff’s affidavit affirmed on 24 July 2019 and handed up in court in support of the application to have Dr Bem called to give evidence,[18] he stated as follows:
3.     The proposed order of the Honourable Judge Deuter the Trial Judge in the within action, to receive a psychiatric report from Dr Tony Davis, to which I am not opposed does not work fairness to me as a matter of principal.
4.     The report from Dr Davis is in effect a defacto report for the defendants. Dr Davis has examined me on previous occasions at the behest of the Defendants’ solicitors.
5.     With no disrespect to Dr Davis, without a similar report from my own consulting doctor as to my mental condition, and my ability, or otherwise, to conduct the Trial of my claim, would have the potential to be a report slanted in favour of the defendant’s case, and which may prejudice my case as it related to my mental condition.
6.     The request for a report from my consulting psychiatrist, Dr Bem, would provide a counterbalance, if that was needed, to the report commissioned from Dr Davis.
[18] Plaintiff’s Affidavit signed 24 July 2019.
The plaintiff indicated to me, from the bar table, that he had had some assistance from friends and his family in preparing court documents. However, there is no indication in any affidavit handed up in court or formally filed in the Registry, that any document was translated or interpreted from the plaintiff’s native Arabic language. There is no translation clause in any of the plaintiff’s affidavits. The irresistible inference is that the plaintiff understood the contents of the affidavits and the legal concepts behind them.
The plaintiff also attended upon his applications to Appeal and for leave to appeal in the Supreme Court without representation.[19] In doing so, I find that the plaintiff demonstrated an understanding of legal concepts.
[19] Draoui v Le & Anor [2019] SASC 114; Hearing 23 August 2019 before Justice Kelly as per transcript; and Notice of Appeal determined in Draoui v Le & Ors [2019] SASCFC 105.
The plaintiff also regularly forwarded detailed emails to my chambers during the course of the trial, seeking that certain action be taken. Where I considered these to be of substance and/or importance, I read them onto the transcript.[20] I did this to ensure fairness to all parties and not to conduct the trial through chambers, rather than in open court. These emails and applications filed in court further demonstrated that the plaintiff understands legal process and the English language.
[20] T716 - T719; T1029; T1087; T1107; T1124 - T1127.
Having considered the plaintiff’s demeanour in court, his ability to argue and attempt to persuade, and the matters outlined above I find, on the balance of probabilities that the plaintiff has a good, if not perfect, understanding of the English language.
The trial was very long with twenty-seven days of hearing over seventeen weeks. Significant time was devoted to ensuring that the plaintiff understood court procedures and the processes that were occurring, and discussing these with him. There were regular breaks to deal with, and accommodate the health issues allegedly suffered by the plaintiff. Despite the findings I have made regarding the plaintiff’s understanding of English, conduct of the trial was always going to be difficult for a person who is not legally trained. However, the issues in dispute are not overly complex. The three accidents are relatively straightforward motor vehicle accidents, and the injuries alleged to have been suffered are those regularly seen in such accidents.
The plaintiff indicated at the commencement of the trial that there had been a recent exacerbation of his depression which he alleged impacted his memory. During cross-examination, he would frequently state that he could not recall certain matters due to his depression. I have taken those matters into account (to the extent that it occurred) when assessing the plaintiff’s presentation as a witness and generally, in relation to his conduct throughout the trial. I also take into account that the plaintiff’s demeanour changed markedly at different times throughout the trial. There were times when he would sit with his head in his hands, rocking and refusing to engage and indicating that he was unwell. This was particularly the case when being cross-examined by the defendants’ counsel. At other times, the plaintiff was actively engaged, arguing with me, the defendants’ counsel and witnesses whom he chose to cross-examine.
The plaintiff became particularly agitated and engaged once he became aware that the defendants had arranged surveillance of his activities, and the results of that surveillance were put to his general practitioner, Dr Mascolo and then the psychiatrists, Drs Davis and Bem. He constantly objected to questions put to those doctors by the defendants’ counsel over 17 and 18 July 2019.
As I set out in more detail later in these reasons, during the course of the trial I considered the extent of the plaintiff’s mental health issues and the impact of those upon his capacity to continue to conduct the trial. On 16 August 2019, following an Inquiry held to consider those issues I concluded that the plaintiff had been fully engaged in the curial processes during the trial to that point and that he was not a person under a Disability.[21] I find that this continued until the end of the trial and that the plaintiff made tactical decisions regarding his refusal to continue his cross-examination and not to call witnesses.
[21] Draoui v Le, Then & Cock (2019) SADC 108 (“The Inquiry Judgment”).
While the plaintiff gave some evidence, he never arranged for, or called any witnesses to attend court to give evidence on his behalf. He confirmed that no arrangements had been made at the commencement of the trial.[22] He presented very little evidence, often relying on documents already filed in court.
[22] T15.22 - T17.6, T18.2-24.
On day twenty-two of the trial (3 September 2019) after I had indicated that I would treat his case as closed if he was not going to call evidence, the plaintiff made an application to tender his medical evidence by handing up the reports of those doctors who had provided reports on his behalf, without the author of those reports being called. The plaintiff read out a list of doctors who had provided reports stating that he wanted to tender their reports. I indicated that before I could consider this application I needed a list of the actual reports the plaintiff was to tender, including the dates of those reports.[23] After some discussion I ordered that the plaintiff provide a list of the reports that he wanted to tender by close of business the following day, 4 September 2019, for the court’s consideration.[24] The defendants did not consent to the tendering of the reports, as the authors would not be cross-examined, and there would therefore be no opportunity for the defendants to challenge the factual basis of their opinion.[25]
[23] T1030 - T1034.
[24] T1051 - T1053.
[25] T1032.23 - T1033.4.
The plaintiff did not comply with my order, emailing my chambers to advise that he did not have the reports and needed time to attend each doctor’s rooms to obtain the reports.[26] At court on 4 September 2019 the plaintiff indicated that he now (on day twenty-three of the trial) had seventeen witnesses that he wanted to call to give evidence on his behalf.[27] The defendants then attempted to assist the court and the plaintiff by providing copies of the reports of the experts that the plaintiff had listed in court the day before, and that had previously been served upon them by the plaintiff. There were eighteen different reports.[28] I was prepared to accept those reports as part of the plaintiff’s case, but ultimately the plaintiff refused to have them tendered stating that he could not be sure that the reports were not “cooked”.[29] The reports were therefore marked for identification but never tendered by the plaintiff as evidence.[30] As a result no expert medical evidence was led or tendered by the plaintiff as part of the trial. No expert accounting evidence was led or tendered by the plaintiff.
[26] T1087 - T1088.
[27] T1089.33-35.
[28] T1092.23 - T1093.13, T1096.1-10.
[29] T1097.13.13-21, T1098.13 - T1100.38.
[30] T1107 - T1111.
The plaintiff also did not call any lay witnesses to give evidence. Although often mentioning his wife and five children, none of those family members ever attended court over the twenty-seven days of sitting, either to give evidence or to be a support to the plaintiff. Despite advising the plaintiff of the need for him to call evidence to prove the extent and consequences of his injuries, the plaintiff advised that no arrangements had been made for any member of his family to attend court and give evidence.[31] Although friends, and especially the accountant Mr Geddes, were mentioned by the plaintiff, none of those people were called as witnesses. The only evidence in the plaintiff’s case came from him. However, that evidence was not complete. The plaintiff did not formally open his case, and was in the witness box for parts of only four days. He refused to return to the witness box so that cross-examination could be completed after I had ruled that he was not a person under a disability and could continue with the trial.[32] Upon the plaintiff’s refusal to complete his evidence, or to call any witnesses in his case, I indicated to him that he left me with no option other than to treat his case as closed, and proceed to hear the defendants’ evidence.[33] I gave the plaintiff several further opportunities to call witnesses, or to complete his evidence before I closed his case. He was not prepared to do so.[34]
[31] T1054.33, T1104.25 - T1105.17, T1132.29 - T1134.6.
[32] T810.35, T812.29 - T813.15, T817.20-28, T818.11-29, T820.6 - T821.35, T825, T843.
[33] T823.13 - T824.34.
[34] T825.3, T829.9-830.
In advising the plaintiff that the trial was to continue, with his case treated as being closed, I provided warnings to him that there would likely be adverse consequences for his case as his evidence would not be tested by cross-examination.[35] I provided the plaintiff with ongoing opportunities to call evidence, so as not to prejudice his case.[36] He continued to refuse to resume his evidence or to call witnesses, until after his case had been closed. Upon the plaintiff’s refusal to continue his case, I invited the defendants’ counsel to open the defendants’ case.[37] The trial then continued until all the defendants’ evidence had been called and the defendants’ counsel delivered his address. The plaintiff remained in the courtroom and sometimes cross-examined the defendants’ witnesses. At other times, he did not. The plaintiff did not address me on what he was seeking from his claims.
[35] T830, T835.16-23, T838-839.3, T845.9-846.33.
[36] T831.32 - T836, T841.16 - T842.8, T843.1-10.
[37] T848.25 - T859.
Consideration
I will consider this matter by starting with a summary of the processes that occurred during the trial; the effect of the plaintiff’s decision not to call witnesses and of my general impressions of him. I will then determine the liability issues in relation to each of the three accidents, and then consider the issues in relation to quantum.
The plaintiff was in the witness box for parts of four days and this gave me opportunity to observe him as he gave his evidence. He also interacted with me, the defendants’ counsel and witnesses for the other twenty-three days of hearing. While I accept that demeanour is not always a reliable guide when attempting to assess the accuracy and reliability of evidence given by a witness, I do take this into account in relation to the plaintiff. I also accept that the plaintiff may have been suffering from some mental health issues. His evidence was that he was on heavy antidepressant medication at the time of his evidence.[38] However, that evidence was not supported by the evidence of the plaintiff’s general practitioner, Dr Mascolo[39] and his treating psychiatrist, Dr Bem,[40] that neither were currently prescribing anti-depressant medication for the plaintiff.
[39] T432 - T434, T449, T453 - T454.
[40] T500.
I have taken these matters into consideration when forming my views whether to accept particular aspects of the evidence given by the plaintiff. The onus of establishing his claims in negligence and damages falls on the plaintiff. Credit findings assume a greater significance in cases such as this, where the plaintiff called no corroborating evidence and the principal and almost the only evidence as to the plaintiff’s version of the accidents and his injuries comes from him.
In Richardson v Armistead[41] Hansen J, at [36] stated that:
…in such circumstances, the self-interest of a claimant to give evidence favourable to his or her case is obvious…in such a case much caution is exercised before the evidence of the claimant is accepted.
[41] [2000] VSC 551.
I also take account of what Kirby J said in Whisprun Pty Ltd v Dixon:[42]
…some judges in the past regarded untruthful evidence – even about peripheral or irrelevant matters – as fatal to a litigant. Most judges today understand that the evaluation of evidence involves a more complex function, requiring a more sophisticated analysis. Courts, after all, are not venues for the trial of the parties’ morality or credibility, as such. As judges often explain to juries in criminal trials, people sometimes tell lies in courts and elsewhere for extraneous and irrelevant reasons, having nothing to do with the legal issues in the trial. If this is true in criminal trials, it is equally true in civil trials. What is important is not the proof of untruthfulness, as such, but the significance (if any) of any demonstrated falsehoods for the issues at trial. That significance can only be judged when measured against the entirety of the relevant testimony. By its logical force, that testimony may well require that falsehoods be ignored as irrelevant or immaterial to the decision-maker’s ultimate conclusion…
…obligations of this kind recognise the ultimate duty of the decision-maker in an Australian court to decide a case according to law and the substantial justice of the matter proved in the evidence, not as some kind of sport or contest wholly reliant on the way the case was presented by a party…
[42] (2003) 77 ALJR 1598 at [119]-[120].
I have taken these comments into account and throughout these reasons will balance the plaintiff’s presentation against the objective evidence that is before me. This is a difficult matter for me to determine, given the plaintiff’s decision not to always participate in the trial and his refusal to complete his evidence or call any witnesses.
The Trial
The First Five Days
The trial of this matter commenced on 8 July 2019. The plaintiff attended the first day with no papers at all, and no support persons or witnesses that he intended to call to give evidence on his behalf. In seeking an adjournment, he told me that:
·     he was not feeling well and had an appointment two days later with his general practitioner;[43]
·     he had rung the psychiatrist who had previously treated him, Dr Bem, but that he could not see him until August, and only after he paid outstanding gap fees;[44]
·     it was absolutely wrong that he had to conduct his trial without legal representation against the defendants’ legal team; [45]
·     it was also wrong that he was forced to conduct his trial when he could not read or fully understand English;[46]
·     he had had an appointment arranged with a lawyer for 11.30am that day (the day the trial commenced), but the lawyer would now not see him due to interference from the lawyers for the defendants;[47]
·     he did not have any of his files from his previous solicitors;[48]
·     in relation to his files, Ms Antonietta Emanuele of Tindall Gask Bentley, had not been honest in her affidavit of 7 June 2019 filed in court (as referred in the Adjournment Decision) and he maintained that the firm had not provided his files to him;[49]
·     he had not slept for three weeks and he had no idea where to start this trial;[50]
·     he was suffering badly;[51] and
·     because of his health issues, he was losing his memory.[52]
[43] T3.17-21.
[44] T14.5-15.21; T19.19 - T20.33.
[45] T3.21-23; T 5.14-21.
[46] T3.24; T29.
[47] T3.34 - T5.10.
[48] T4.23-25; T15.8-13.
[49] T5.23-28.
[50] T4.26-28; T17.6-8.
[51] T5.36-6.3.
[52] T14.33 - T15.3.
The defendants opposed the plaintiff’s further application to adjourn the trial. They submitted that witnesses had been arranged to give evidence, and the matter should proceed. The defendants’ counsel advised that those witnesses had been booked on two previous occasions when the matter had been listed for trial but adjourned on the plaintiff’s late application just before the trials were to begin. The defendants’ position was that the plaintiff’s application for an adjournment had been argued in detail and refused, for the reasons set out in the Adjournment Decision.
In response to the defendants’ submissions, the plaintiff became very agitated, and told me that he needed to finish the case as it was taking a serious toll on his health. He confirmed that:
·     he had arranged no doctors to give evidence as they wanted money in advance that he could not pay;[53]
·     he had not issued any subpoenas for expert witnesses to attend court despite my providing leave for him to do so at a hearing on 30 May 2019. This was because he did not know how to complete the subpoenas, and if he subpoenaed the doctors they would be hostile to him;[54]
·     he had not arranged for any members of his family, including his wife or adult children to attend court to give evidence at trial, and it was not clear if he had spoken to them about doing so;[55]
·     he had not arranged any other lay witnesses to give evidence at trial;[56] and
·     his depression was returning and that this was affecting his memory, and he could not focus.[57]
[53] T15.25-27.
[54] T15.31-33; T16.2-22.
[55] T15.36; T17.4; T17.14-16.
[56] T16.18.
[57] T 8.24, T21.9-11.
In response to my query as to whether he had any medical evidence or certificate to confirm his worsening mental state, the plaintiff told me that he did not. However, he planned to see his general practitioner at 8.30am on Wednesday 10 July 2019 (two days later), when he would obtain a report regarding his health and confirming his inability to proceed with the trial. He was confident his General Practitioner would support his position, despite not yet having been reviewed by him.[58] The defendants argued that this was simply another attempt by the plaintiff to adjourn the trial when he had been unsuccessful in doing so by his pre-trial application.[59]
[58] T5.11-14.
[59] T8.15 - T10.6, T13.5 - T14.
After considering all the circumstances, including the lack of any evidence to confirm or support the plaintiff’s alleged recent health issues, I ruled that the trial should commence, with the plaintiff to give evidence by me guiding him through the matters that he should address. The trial would be adjourned for the morning of Wednesday 10 July 2019 to allow the plaintiff to attend the pre-arranged medical appointment with his general practitioner.[60] I then opened the plaintiff’s case, despite his opposition. The plaintiff indicated that he could not tell me what he sought from his claims, as he had no documents to rely on. He said that he did not have any of his files, as these had been retained by Tindall Gask Bentley.
[60] T24.9 - T25.8.

I pause to note that for all the trial the plaintiff brought no documents to court, even though I am aware from the court files that multiple documents had been served upon him personally by the defendants’ solicitors after the plaintiff was representing himself. These documents included the plaintiff’s medical records, his WorkCover files including medical reports, his tax returns, the defendants’ medical and expert accounting reports, South Australia Police files and all documents in the plaintiff’s workers compensation proceedings in relation to the first accident. The plaintiff would not accept that he had any documents, repeatedly telling me that his previous solicitors, Tindall Gask Bentley still held his file, and that this consisted of sixteen boxes of material.[61]
[61] T129, T143 - T144, T163, T184, T233 - T234, T261 - T263,T334, T369.
Despite these claims, the court file records that on 25 November 2017 the plaintiff was served with a two volume Notice to Admit Documents prepared by the defendants pursuant to an order of Master Blumberg of 16 October 2017.[62] This was served personally upon the plaintiff, as he was not then legally represented. This notice attached seventy-one documents consisting of medical reports, medical consultation records, imaging and pathology reports, medication prescription records, WorkCover medical certificates and the plaintiff’s tax returns from 1994 to 1997 and 2002 to 2011. By applications dated 18 January 2018 and 27 March 2018[63] the plaintiff sought orders from the court to extend the time within which to respond to the Notice to Admit. He never filed an Answer. The service of the Notice to Admit and the plaintiff’s applications in relation thereto, establish that it is not the case that the plaintiff has had no documents since acting on his own behalf. The plaintiff received the documents attached to the Notice and sought an extension of time to Answer the Notice. In his affidavit of 18 January 2018, the plaintiff set out his difficulties in understanding the technicalities of providing an Answer. An extension was provided by Master Blumberg on 12 February 2018 to 23 March 2018. By his affidavit of 27 March 2018[64] the plaintiff again sought an extension of time, noting he was having a person assist him with his response, but that this person had been unavailable due to other commitments.
[62] FDN 104.
[63] FDN 105 and FDN 111.
[64] FDN 112.
I reject the plaintiff’s submission made during the trial that he had no documents relative to his claims for the reason that his files had not been released by Tindall Gask Bentley. Indeed, during cross-examination the plaintiff admitted that he had the documents that were part of the Notice to Admit.[65] The court files confirm the extent of those documents.
[65] T185 - T186.
The issue of non-release of his files from Tindall Gask Bentley was a matter very much in dispute. As set out in the Adjournment Decision, Ms Antonietta Emanuele, then Senior Associate of that firm, filed an affidavit in court dated 7 June 2019, where she attested to the fact that the plaintiff had collected all files that the firm held containing documents provided by previous firms who had acted for the plaintiff. Those files contained all medical reports and other discoverable evidence.[66]
[66] Draoui v Le, Then & Cock [2019] SADC 85 at [43]-[46].
Ms Emanuele set out in her affidavit that these files were given to the plaintiff on 11 April 2017. That is before the trial date listed for 1 May 2017 was adjourned (the second trial date).
As a result of the plaintiff continuing to assert that he did not have his files, and that this prejudiced him in the conduct of the trial, the defendants subpoenaed Ms Emanuele to give evidence at trial and she attended court on 31 July 2019. Her evidence was that Tindall Gask Bentley acted for the plaintiff between 10 August 2015 and 15 March 2017. She confirmed that the plaintiff collected all the files that had been provided to the firm by the plaintiff’s former solicitors on 11 April 2017.[67] This material consisted of more than one or two boxes, and was a substantial amount of material. It contained all the files of the plaintiff’s former solicitors, Mr Flower and Mr Inglis.[68] Ms Emanuele also confirmed that all other material that had been held by Tindall Gask Bentley, notably all privileged material, had subsequently been provided to the court in sealed envelopes in response to my order of 12 June 2019. The firm no longer held any material in relation to the plaintiff.[69] In cross-examination Ms Emanuele stated that the firm had not retained any photocopy or electronic copy of the documents that had been given to the plaintiff.[70]
[67] T626.
[68] T627 - T628.
[69] T628 - T629.
[70] T632.
Having carefully considered all the evidence, I find on the balance of probabilities that over the long course of this matter the plaintiff has been provided with a significant amount of material regarding his three claims. This material has been provided by the defendants, the court or his own lawyers. I find Ms Emanuele to be a reliable and credible witness with no reason to mislead the court. Where Ms Emanuele’s evidence conflicts with the evidence of the plaintiff, I prefer the evidence of Ms Emanuele. The plaintiff called no evidence to corroborate his claim that he held no documents relative to his three actions, and initially attempted to mislead the court in relation to the documents served with the defendants’ Notice to Admit.
I began the plaintiff’s case by taking him through his evidence. I explained that he had to tell me how each accident happened and what his injuries and losses were. I led the plaintiff through his evidence-in-chief, being mindful that it was not my role to be his advocate. He was then cross-examined by the defendants’ counsel. During this process, there were multiple breaks to accommodate the plaintiff’s health issues and medical appointments. The trial was suspended on 12 July 2019 to allow consideration of the plaintiff’s capacity to continue with the trial, due to his alleged deteriorating mental health.
The plaintiff put to me on many occasions during his four days of evidence that he was unwell and could not continue his trial. He complained of severe headaches; dizziness; stomach issues and diarrhoea; memory loss and issues with his sight. The plaintiff raised his previous serious depression and his opinion that he was now suffering a relapse, and that this was impacting his memory. I am aware from previous judgments of this and other South Australian Courts that the plaintiff had previously suffered a Major Depressive Illness after he was charged in July 2002 with multiple criminal offences, related to fraud. After a lengthy process, on 20 November 2006 it was found on the balance of probabilities that pursuant to s269H of the Criminal Law Consolidation Act 1935 (SA), the plaintiff was mentally unfit to stand trial in relation to the criminal charges.[71] The plaintiff confirmed this on multiple occasions throughout the trial, either while in evidence or from the bar table.[72] There was a recovery by 2008, and in May 2014 (the then) Judge Muecke accepted that the plaintiff had sufficiently recovered his mental health, and no longer required psychiatric supervision.[73] He described the plaintiff as then enjoying good mental health. The plaintiff confirmed his recovery during the trial and that he had been involved in a lengthy legal battle to have the terms of his supervision changed by the Supreme Court and High Court.[74]
[71] R v Draoui [2008] SASC 188 at [10].
[72] T43, T48, T64 Mr Draoui refers to it as the ‘untested fraud case’, T72, T901, T944, T978, T990, T1046.
[73] Draoui v The Queen [No.2] [2014] SADC 103 at [155] to [173].
[74] T1092.
The plaintiff is therefore a person who has previously suffered a very serious psychiatric illness. I took that into account in determining how to proceed on the plaintiff’s application that his trial be adjourned due to his worsening mental health.
The plaintiff was assessed by a general practitioner, Dr Mascolo on Thursday 11 July 2019, after some delay with the plaintiff’s medical review. On 12 July 2019, the plaintiff presented the court with a letter from Dr Mascolo. This stated that the plaintiff had suffered an exacerbation of his Depressive Disorder and that he should be reviewed by the psychiatrist, Dr Bem. Dr Mascolo provided a referral to Dr Bem. Dr Mascolo’s opinion was that the plaintiff was not “…fit to go through the legal/motor vehicle claims…”.[75]
[75] Exhibit P10.
Plaintiff’s Mental Health and Capacity – An Inquiry
As a result of the plaintiff’s ongoing complaints of deteriorating health and the letter from Dr Mascolo, I was concerned that the possible relapse of the plaintiff’s depression and his assertions of loss of memory and poor mental health meant that he did not have capacity to conduct his legal claims, and was a person under a Disability pursuant to Rule 4 of the District Court Civil Rules 2006. If this was the case he would require a Litigation Guardian. I therefore determined that an Inquiry should be undertaken into whether the plaintiff was a person under a Disability. That Inquiry proceeded over eight days between 17 July 2019 and 13 August 2019. The evidence considered in that Inquiry is set out in detail in my judgment of 16 August 2019 (‘the Inquiry Judgment’), and I will not repeat that.[76]
[76] Draoui v Le, Then & Cock [2019] SADC 108.
After considering all the evidence including that of several medical witnesses I found that, despite any mental health issues, the plaintiff had been fully engaged in the curial process both during the first part of the trial, and during the Inquiry. I also found that the plaintiff had displayed an intact memory and that surveillance of the plaintiff between 24 June 2019 and 9 July 2019 indicated that he remained active and social. During the Inquiry two psychiatrists, Doctors Bem and Davis, gave evidence that the level of activity reported by surveillance operators was not consistent with a person suffering from a significant psychiatric condition, particularly one of a depressive nature.
I found that, whilst the plaintiff in conducting his trial had some difficulties with legal concepts, it was not apparent to me that any medical issues had impacted on his ability to make rational decisions regarding the conduct of the proceedings. My view was that the plaintiff chose when to fully engage and when not to, based upon his own decision-making process and capacity.[77] The surveillance evidence of the plaintiff’s activities before the start of the trial and during the first two days, as admitted by the plaintiff, demonstrated that the plaintiff chose to participate in other regular activities rather than prepare his matter for trial.[78]
[77] Ibid at [148].
[78] Ibid at [150]-[151].
In exercising my discretion, I found that the plaintiff was not a person under a disability and that he did not require a Litigation Guardian. I ordered that the trial should re-commence.[79]
[79] Ibid at [159]-[160].
The defendants’ position in relation to the plaintiff’s request for an adjournment at the start of the trial on 8 July 2019, and his subsequent request to adjourn on 13 July 2019 due to a relapse of his depression, was that these were simply further attempts by the plaintiff to obtain an adjournment of the trial that he did not obtain before the trial started. The defendants’ counsel put to each of the medical witnesses who gave evidence on the Inquiry whether the plaintiff’s reported deterioration of his mental state could have been for secondary gain, namely, to achieve an adjournment of the trial. At the conclusion of the Inquiry the defendants’ counsel submitted that the plaintiff’s credibility was a live issue with regard to the plaintiff’s capacity and his presentation at recent medical examinations.
I was of the view that I did not need to make findings regarding the plaintiff’s credit in coming to a decision regarding the plaintiff’s capacity and I did not make any credit findings. However, the issues raised by the defendants’ counsel are relevant in relation to how I should now consider the plaintiff’s evidence. I will deal with this further in my reasons.
Continuation of the Trial
On 16 August 2019, I ordered that the trial recommence on Monday 19 August 2019, with the plaintiff to return to the witness box so that his cross-examination could continue. I indicated to the parties that I would provide additional breaks to the plaintiff to take account of his health issues and to allow him time to attend medical appointments with Dr Bem as required.
The plaintiff was very upset by my ruling, making inappropriate comments regarding the defendants’ counsel and stating that he would not be further cross-examined by him.[80] These attacks by the plaintiff, also directed against me, continued on Monday 19 August 2019, with the plaintiff refusing to return to the witness box.[81] He also, once again, confirmed that he had not arranged any witnesses to give evidence in his case.[82] The defendants’ counsel submitted that I should dismiss the plaintiff’s three claims if he left the court and refused to participate, or find that he was in contempt of court.
[80] T803 - T804; T805 - T806.
[81] T808 - T813; T815 - T819; T822.
[82] T821-T823.
I refused to dismiss the plaintiff’s three claims, and indicated to the parties that if the plaintiff refused to return to the witness box, or to call any witnesses, that I would treat his case as closed, and proceed with the defendants’ case. I provided warnings to the plaintiff as to the adverse consequences that could have for him, as he would not have an opportunity to rebut matters that had been put to him in cross-examination or would have been put to his witnesses by the defendants.[83] I again explained to him his obligation to prove his case both on liability and quantum.[84]
[83] T821, T823 - T824, T830; T835, T838 - T839.
[84] T822, T831 - T833, T835, T841 - T842.
The plaintiff again stated that he did not have his file and documents and that this was a reason that he could not be cross-examined.[85] I pointed out to him that he had been provided with all of the documents that the defendants’ counsel had referred to and relied on, including four tender books containing the plaintiff’s tax returns,[86] consultation records, imaging and pathology results, prescription history, WorkCover documents,[87] medical reports relating to the plaintiff’s medical condition before the first accident,[88] and medical reports in relation to the plaintiff’s condition following the first accident.[89] These were all documents that had been attached to the defendants’ Notice to Admit, or documents of the defendants’ experts who were to be called as witnesses, and which had previously been served upon the plaintiff or his lawyers.
[85] T825.
[86] Exhibit D1.
[87] Exhibit D2.
[88] Exhibit D3.
[89] Exhibit D4.
These tender books were given to the plaintiff by the defendants’ counsel on the first day of trial, at the same time they were tendered to the court. I witnessed this exchange in open court. Despite taking them with him after the first day of trial, the plaintiff never brought these books of documents to court on any other occasion. He never referred to them.
Over the course of the Inquiry process, the plaintiff was handed further documents being his progress medical notes from his general practitioners, for the period from 18 March 2014 to 11 July 2019,[90] discs of surveillance,[91] and medical reports of Doctors Davis[92] and Bem.[93]
[90] Exhibit D11.
[91] Exhibit DI1.
[92] Exhibit DI4.
[93] Exhibit PI1.
Despite being provided with this documentation the plaintiff continued to come to court with nothing and argue that he was prejudiced as a result. If this was the case, I find that these difficulties were of the plaintiff’s own making. The following exchange is an example of the difficulties with the plaintiff in relation to presentation of his case: [94]
[94] T823-828.
MR DRAOUI:    How many times I actually explain to your Honour I don't have the money to call the witnesses. You said to me to subpoena them, I said 'Can you subpoena them for me because I don't know how?' And now you -
HER HONOUR:   Did you go to the registry and ask them about the form?
MR DRAOUI:      You only take one side of the court your Honour, his side, not this side (INDICATES).
Now if you think you want to throw my case well think about it carefully your Honour because it's not going to happen.
HER HONOUR:   I'm not going to dismiss your case, what I will do though is consider closing your case but I warn you again that if you don't give evidence then there will be matters that Mr Day won't be able to cross-examine you on, those issues may well go to credit and he has obligations in relation to that and therefore when he asks me to find certain matters there will be consequences for you because you haven't been cross-examined on those issues. Out of fairness I'm telling you that because we are at a point I'm not prepared to adjourn the trial. I have considered that many weeks ago, I have also considered your capacity to conduct this trial. I'm not saying that you haven't suffered some aggravation of your mental illness but I'm talking about your capacity to run this trial which was, for the transcript, demonstrated again this morning by the submissions that you put. So, I'm indicating to you that what I'm considering doing is closing your case and allowing the defendant to put evidence to me that would have been put to you in cross-examination and submissions will be made on that evidence and you won't have the opportunity to on oath deny or explain or suggest an alternative to the matters that Mr Day puts to you.
MR DRAOUI:    Well I already explained to your Honour, my knowledge in law nil, my knowledge -
HER HONOUR:   No, no, this is about factual issues.
MR DRAOUI:    Pardon?
HER HONOUR:   This is about factual issues, what the facts, Mr Day in cross-examination has taken you through the facts of various times the medical evidence, tax documents, things that have occurred through your life before the accident and after the accident or continue for a period of time till now. If you refuse to give evidence and your case is closed he doesn't have the opportunity to put that to you and there is likely then to be some adverse consequences to your case as a result of that. I'm telling you that to be fair and to be fair now for you to consider that, you're continued refusal to put matters before the court. Now I'm not going to close your case today because you have to think about whether you're going to call any other witnesses, but if you come to me tomorrow and say I haven't got my family, I don't have my wife here to give evidence, I have no witnesses at all, then in all likelihood I will close your case and ask Mr Day to open the defendant case. That will mean providing documents to me that you won't be cross-examined on, you won't have the opportunity to explain under oath and they will be likely to be some adverse consequences and adverse findings as a result. So out of fairness I'm giving you the opportunity to be cross-examined on those issues.
MR DRAOUI:    That's not the way to close the case your Honour, the way to close the case like what Tracey J did. It's not the way to close - it's not the - if you do it this way then I really believe you formed your opinion from day 1 to dismiss my case.
HER HONOUR:   No, I haven't and I'm not dismissing your case.
MR DRAOUI:    Yeah.
HER HONOUR:   I just told you I'm not. The case will continue and you'll be able to cross-examine Mr Day's witnesses, you'll be able to cross-examine or put things about the material. I'm not dismissing you case.
MR DRAOUI:    I do not say I don't want to be cross-examined, I say I don't fit enough today or tomorrow or the day after to be cross-examined by -
Your Honour three things here, one, I suffer from depression. Secondly, I don't have my file, very very important. Thirdly, I don't have my witnesses here. Fourthly I -
HER HONOUR:   Well they are things Mr Draoui that you are in control of. You have been provided with nearly every document that Mr Day has had, and you refused to take them, including your own medical records, which you have thrown back at him across bar table.
MR DRAOUI:    Can I ask a question? Have you really made your, formed your opinion I can't read documents, I can't understand them? Now read, can you tell the court and on the transcript here, yes I can read documents, yes I understand the rule, yes I understand -
HER HONOUR:   I'm not making any credit finding at this stage.
MR DRAOUI:    Well your Honour then it doesn't matter what he give me if I don't understand them. Doesn't matter. What's the point? I need my own file. This was my file.
HER HONOUR:   Mr Draoui how would you read your file?
MR DRAOUI:    Pardon?
HER HONOUR:   How would you read your own file?
MR DRAOUI:    Well I've got my family, translate it to me.
HER HONOUR:   It's the same way with the documents that Mr Day is providing you, you can have your family translate those to you.
MR DRAOUI:    No, I don't want them to choose my file. I want my file -
HER HONOUR:   Mr Draoui, they're offered your own medical records. In fact, I think they're still here, as a part, they are your own medical records, which you refuse to take.
MR DRAOUI:    No I didn't. I put my medical report and my medical report in the hand of Mr Day.
HER HONOUR:   No you didn't. You did not take these medical records from your GP clinic at Campbelltown -
MR DRAOUI:    Yes I did.
HER HONOUR:   You're calling my associate a liar, so I'd be very careful.
MR DRAOUI:    I'm not saying a liar. No I did - I gave the registry a ... of this, an envelope, yellow envelope.
HER HONOUR: These have been hanging around the bar table, this -
MR DRAOUI:      I don't know, I thought this was an account things or something.
HER HONOUR:   On several occasions I have indicated to you that they are your GP notes and you have described them as poison. That is on the transcript. Do you want to take these now?
MR DRAOUI:    I take them but the registrar gave me big yellow envelope.
HER HONOUR:   Yes, there's been a whole lot of things. There's been continual materials provided to you by the defendant.
MR DRAOUI:    And why the defendant want to give me this?
HER HONOUR:   Because they were tendered to the court and at the time they were tendered to the court a copy was given to you.
MR DRAOUI:    Who was this - what doctor this?
HER HONOUR: This is your GP at Campbelltown, recent records. And they go -
MR DRAOUI:    What the yellow book they gave me, what the yellow envelope they gave me?
HER HONOUR: I'm not sure which yellow envelope -
MR DRAOUI:    They gave me big yellow envelope and I give it to Mr Day.
HER HONOUR:   I'm not aware what that is Mr Day.
MR DAY:   No, the only envelope that I'm aware of were the privileged documents I think, which came from Tindall Gask Bentley.
HER HONOUR:   Tindall Gask Bentley yes.
MR DAY:   Otherwise I'm not sure.
HER HONOUR:   Unless Mr Draoui are you talking about the documents on the notice to admit?
MR DRAOUI:    No your Honour, it's my medical report.
HER HONOUR:   Your report or your records?
MR DRAOUI:    My medical - from GP clinic.
HER HONOUR:   They might have been your earlier records. Those ones are later ones, from about two thousand -
MR DRAOUI:    I thought they talking about there is accounting.
HER HONOUR:   No.
MR DRAOUI:    No that's what I thought.
HER HONOUR:   Well I've indicated on several occasions those documents -
MR DRAOUI:    I give my documents and I give my - the big envelope the registrar gave it to me, and I remember somebody rang me, said 'Your medical from GP clinic ready to be picked up from the registrar'. And I went to the registrar.

On Tuesday 20 August 2019, I finally ruled that the plaintiff’s case should be treated as closed, and the trial would proceed with the defendants leading their evidence. I indicated that I would consider an application by the plaintiff to re-open his case, although my decision to do so would be at my discretion and within terms determined by me at that time. The defendants’ counsel then opened their case with multiple threats from the plaintiff to leave the courtroom and not return.[95]
[95] T845 - T856, T862.
The defendants called witnesses who gave evidence over several days, between 20 August 2019 and 6 September 2019, depending upon their availability. These witnesses included the first and second defendants, a lay witness, and several expert witnesses. On some occasions, the plaintiff cross-examined the defendants’ witnesses, but at other times he chose not to, noting that he reserved his right to do so when his legal team was present. On several occasions, he threatened to leave court, which he finally did during the afternoon of 28 August 2019 just before his previous general practitioner, Dr Moy gave evidence. He alleged that he had been ambushed, that the trial was a fake trial and unfair, and that I was biased against him.[96] I made the decision to proceed with Dr Moy’s evidence.
[96] T1008 - T1013.
On Thursday 29 and Friday 30 August 2019 I caused emails to be sent from my Chambers to the parties setting out the schedule for the trial and the remaining witnesses to be called by the defendants between 3 September 2019 and 6 September 2019. By those emails it was confirmed that at the conclusion of the evidence the parties were to address me on their respective cases. It was indicated that I had treated the plaintiff’s case as closed upon his refusal to continue to be cross-examined or to call any witnesses. I would hear any application by the plaintiff to re-open his case and repeated my warnings regarding possible adverse consequences to the plaintiff’s case of him not giving evidence or not calling witnesses.[97]
[97] T1029 - T1030.
The trial continued on 3, 5 and 6 September 2019 with the plaintiff attending court and cross-examining the defendants’ witnesses. On 5 September 2019, I gave the plaintiff an opportunity to make submissions regarding the trial process and his case, once the defendants had completed the evidence in their case. The plaintiff submitted that he needed more time to attend upon each of his medical witnesses and obtain detail of the reports that they had prepared on his behalf. He also required time to speak with an accountant, whom he described as a liquidator, regarding his financial losses.[98] In making that submission the plaintiff confirmed that he had not yet obtained an expert accounting report, but he now sought one so he could challenge the evidence of the defendants’ accounting expert, Ms Orr.[99] I put to the plaintiff that he had had considerable time to obtain such a report as Ms Orr’s first report had been prepared on 14 April 2015. The plaintiff’s response was that it really didn’t matter and that the case was going to take a long time and that an application was to be made to enable his evidence to be obtained and brought before the court.[100] The plaintiff indicated to me that he now had seventeen witnesses (more than his previous fifteen witnesses), whom he wished to call to give evidence, although he had made no specific arrangements for them to attend court.[101] The plaintiff again confirmed that he had not issued any subpoenas for witnesses to attend court.[102]
[98] T1008.18-25.
[99] T1008.28 – T1089.2.
[100] T1089.
[101] T1089 - T1090, T1091.18-37.
[102] T1090.
The defendants opposed the adjournment noting that the plaintiff’s case appeared to be expanding and pointing out that the trial had reached week nine of hearing. The defendants submitted that the plaintiff had refused to return to the witness box; indicated that he would not call any lay witnesses or if he did would not permit the defendants’ counsel to cross-examine them; and had refused to call any expert witnesses. The defendants submitted that the plaintiff in effect wanted to commence the trial from the beginning. In response, the plaintiff agreed that he viewed the trial as being at its beginning.[103] The plaintiff indicated that in his view the trial would take as long as required, noting that it had taken seven years to remove the Chief Judge from his criminal proceedings. In his opinion, it did not matter if it took him ten years to remove me from his case.[104]
[103] T1092.34-35.
[104] T1092.38 - T1093.30.
The argument regarding any evidence to be called by the plaintiff continued on 6 September 2019, when the plaintiff submitted that he did not accept that his case was closed. He submitted that the trial had been hi-jacked by his lack of skills in English, his lack of funding, the lack of his legal file and his mental incapacity. He submitted justice demanded that I allow him to bring all his witnesses to court when he was ready for them, and stated that he did not care that the matter had been listed for trial to start on 8 July 2019.[105] I again asked the plaintiff what steps he had taken to arrange witnesses to attend court on his behalf. He stated that no steps had been taken, but rather he had been concentrating his time on drafting an application for judicial review to be filed in the Supreme Court in relation to the Full Court’s decision refusing permission to appeal the Adjournment Decision.[106] Again, the plaintiff indicated to me that there were no time limits in relation to his case and it may even take ten years to conclude.[107] After hearing submissions, I ruled that as the plaintiff did not have any evidence to call, I would close his case with final addresses to be made by both parties on 10 September 2019.
[105] T1119.34 – T1120.5.
[106] T1120.26 – T1121.10.
[107] T1121.19–23.
On 8 September 2019, the plaintiff forwarded an email to my chambers making allegations that I had ignored his mental health in proceeding with the trial, and that I had failed to consider his lack of legal representation, history of depression and the lack of his legal file. Allegations were made that I only took the side of the defendants’ legal team. The plaintiff asserted that his psychiatrist, Dr Bem had given evidence that he was not fit to continue with the trial and that having done so, the trial was a complete miscarriage of justice. He asked that I not go ahead and allow the defendants’ counsel to address the court.
The plaintiff forwarded a further email to my chambers late on 9 September 2019, stating that he would like to bring his witnesses to court to be examined and cross-examined, and that he would require at least a month to be able to arrange for all of them to attend. He stated that he was seeking a reasonable time-frame in which to have his witnesses give evidence. The plaintiff again stated that if I was to close his case, and the defendants addressed the court without him being given time to have his witnesses appear, I was being unjust and biased.[108]
[108] Email correspondence on transcript T1124 – T1127.
The plaintiff’s emails were read onto the transcript on 10 September 2019 as was my response to all parties, whereby I had indicated that unless the plaintiff had arranged to call witnesses to give evidence in his case, I would proceed to close his case on 10 September 2019 and invite the defendants’ counsel to make his final address.
In court on 10 September 2019 the plaintiff indicated that he had been telling me for some time that he needed legal advice, even before the start of the trial on 8 July 2019. He stated that “…I keep begging you, I need you to delay the case because I need to be able to be legally represented…”.[109]The plaintiff then submitted that he needed time to call his fifteen witnesses and time to recall the defence witnesses, for them to be cross-examined. He told me that he would have a lawyer within the next seven days.[110] He once again indicated that he had not yet arranged for his wife or children to give evidence and suggested that they were not aware that they could be called to give evidence.
[109] T1128.7–11.
[110] T1130.32-35.
The defendants again opposed any further adjournment of the trial, given that the issue of adjournment and the plaintiff’s inability to fund legal representation had in fact been an issue since late 2014. Both previous trials listed in 2015 and 2017, had been adjourned after the plaintiff’s promises to obtain funding for legal representation had failed to come to fruition. The defendants’ counsel submitted that the plaintiff’s position was exactly the same as it had been in the past, and that I could have no confidence that the plaintiff would take any steps to move the actions forward if I allowed time for him to arrange his witnesses to attend court. He noted that the plaintiff had taken no steps, other than ascertaining that one of his witnesses, Dr Osti may be available to attend court on a certain day of the week. The defendants argued that if the matter was to be adjourned and the plaintiff allowed to call his witnesses and recall the defendants’ witnesses then in reality the trial was to be re-run, and in those circumstances court resources would be required for at least another ten weeks to finalise the matter. The plaintiff had taken every opportunity to frustrate the finalisation of these actions, and had now waited until the very end of the trial before raising the possibility of calling fifteen or seventeen witnesses. However, the plaintiff had still made no endeavours to ascertain the availability of any such witnesses. The defendants submitted that the matter should now be finalised.
Having heard the submissions from both parties, I ruled that I was not prepared to adjourn the actions further and I would treat the plaintiff’s case as closed and proceed to hear addresses from each party.[111] In making this ruling I noted that the plaintiff had never advised the court when the witnesses he wanted to call were available to give evidence. He had not contacted them or made any arrangements for them to give evidence. It was clear that the plaintiff had not made any arrangements with any witnesses to attend court, be they either expert or l witnesses. The plaintiff had also not taken steps to subpoena any witnesses. In the circumstances, I had no confidence that any of the experts that the plaintiff planned to call to give evidence, would be available in the near future to come to court, or would even agree to attend. In relation to the matter generally, I was concerned by the extraordinary period of time that this matter had already taken up in court, both at trial and on appeals to the Supreme Court. I also took into account that on 3 September 2019 the Full Court had upheld my decision of 24 June 2019 refusing to adjourn this trial.[112] I noted that Justice Nicholson in writing the majority judgment had the opportunity to consider the medical reports of Doctors Davis and Bem regarding the plaintiff’s mental state. His Honour found that those reports did not change his decision in relation to the plaintiff’s application for adjournment[113].
[111] T1143.
[112] Draoui v Le & Ors [2019] SASCFC 105.
[113] Ibid at [26].
I concluded that I had an obligation as an Officer of the Court to provide fairness to all parties, including the defendants and other parties that were waiting in line for trial dates. I was concerned that the matter had proceeded for too long and that the submissions that I had heard from the plaintiff were a version of the same submissions that I had heard at the start of, and over the course of the trial. In the circumstances, I found that I was not convinced that the plaintiff would be able to call any witnesses if the matter was to be adjourned to allow the plaintiff to investigate the availability of witnesses. I refused the plaintiff’s application and invited the parties to make their final addresses.
The Plaintiff’s Credibility
Before setting out my judgment in relation to the plaintiff’s claims I will address several credibility issues as raised during the Inquiry hearing and throughout the trial. In relation to the Inquiry, I ruled that evidence heard in the Inquiry was to be treated as evidence in the trial proper and evidence heard in the trial was to also be treated as evidence in the Inquiry.[114]
[114] T427.22-36, T758.31 - T759.5.
During the Inquiry evidence was given of surveillance conducted of the plaintiff’s activities between 24 June 2019 and 9 July 2019. Three investigators gave evidence. Details of the plaintiff’s activities as observed by the surveillance operators were put to Dr Mascolo, the plaintiff’s general practitioner[115]; Dr Bem[116]; and Dr Davis[117] during their evidence in the Inquiry. The extent of the plaintiff’s activities described, and not disputed by him were:
[115] T474 - T482.
[116] T506 - T510.
[117] T562 - T566.
Monday 24 June 2019 (day the Adjournment Decision was handed down):
·     50 minutes at the Maylands Hotel in the afternoon;
·     then driving to Vibe Adult Bookshop at Unley, where the plaintiff remained for just under an hour; and
·     40 minutes at the Maylands Hotel in the evening.
Tuesday 25 June 2019:
·     15 minutes at the Vibe Adult Shop from 12.19 pm;
·     followed by 54 minutes at the Maylands Hotel including time in the pokies area;
·     a return to the Vibe Adult Shop for nearly 40 minutes from 2.50 pm; and
·     a return to the Maylands Hotel at 5.00 pm.
Wednesday 26 June 2019:
·     one hour 15 minutes at a business address at Parkside from 11.36 am;
·     one hour and 10 minutes at the TAB premises in Hutt Street, Adelaide where the plaintiff was observed filling in betting slips and watching races;
·     travel to premises at 55 Wellington Square, North Adelaide where he remained for approximately 30 minutes; and
·     then attended the Oxford Hotel at 3.59 pm.
Thursday 27 June 2019:
· 25 minutes at the Vibe Adult Shop; and
· thereafter attended the Parkside business premises.
Saturday 6 July 2019:
· 20 minutes at premises at Wellington Square, North Adelaide; and
· travelled to TAB premises on O’Connell Street remaining for approximately 30 minutes before entering the Royal Oak Hotel.
Sunday 7 July 2019 (the day before the trial was listed to begin):
·     attended Westfield shopping complex at West Lakes and Costco at Kilburn with his wife;
·     attended the Vibe Adult Shop at Unley for approximately 50 minutes;
·     attended at the Hyde Park Tavern for an hour and 10 minutes; and
·     at 7.18 pm attended the Maylands Hotel where he remained until 9.40 pm.
Monday 8 July 2019 (first day of trial):
· after court, the plaintiff attended the Maylands Hotel between 6.22 pm and 7.09 pm; and
· attended the Vibe Adult Shop between 7.26 pm and 7.48 pm.
Tuesday 9 July 2019:
· after court, the plaintiff attended the Maylands Hotel between 5.11 pm and 5.48 pm; and
· returned at 8.58 pm and did not leave until 11.27 pm.
The plaintiff was not cross-examined regarding these surveillance observations as he refused to return to the witness box to complete his evidence. However, during the evidence of Doctors Mascolo, Bem and Davis, and in statements made from the bar table, he admitted these activities and tried to explain them.[118] The issue in relation to this surveillance evidence is not the nature of the premises that he attended, but how the observations of the plaintiff directly conflicted with his evidence and statements made from the bar table regarding his mental health and functioning over the period of that surveillance.
[118] T476, T524 - T525, T574.
On the first morning of the trial, 8 July 2019, the plaintiff told me:
·     he was not feeling well and had an appointment with his general practitioner later in the week and that he had rung his psychiatrist;[119]
·     he had not slept for three weeks and he was relapsing into depression;[120]
·     that he could not continue until he saw his doctor as he was “absolutely suffering badly” and was losing his memory;[121]
·     he needed to see his psychiatrist urgently;[122] and
·     he was feeling sick and could not focus.[123]
[119] T3.17-20, T5.11-14, T15.4.
[120] T4.25-28, T5.38, T17.6-8.
[121] T5.36 - T6.3.
[122] T14.14-24.
[123] T20.19 - T21.19.
During the plaintiff’s evidence, he told me that he had a “massive headache” and was in a lot of pain and agony.[124] He gave evidence that his life had changed and he could now do very little.[125] At the start of the hearing on the second day of trial, 9 July 2019, the plaintiff told me that he had a massive headache and diarrhoea, that he could not sleep the night before and that he was suffering badly.[126]
[124] T79.
[125] T82 - T83.
[126] T139.
The plaintiff was cross-examined by the defendants’ counsel on 9, 10 and 11 July 2019. Throughout that cross-examination the plaintiff made ongoing complaints of not feeling well, not sleeping at night, and not being able to concentrate or focus.[127] The plaintiff’s evidence was of a person who was very unwell, and is summarised by his evidence of 11 July 2019:
…I don’t sleep for the last three weeks…this trial take toll on me because I don’t have a lawyer…I’m concerned for my health…since I came here about three or four weeks ago, I don’t sleep. I start wondering all the dreams in my head, I just can’t cope. I can’t focus…I don’t sleep, my life is shattered by this man (defendants’ counsel).[128]
[127] T159, T195, T269 - T270, T277 - T279, T283, T287, T291, T382.
[128] T369.
The defendants’ submission to me on the Inquiry was that the plaintiff’s behaviour and allegations of illness were a strategic decision for the purpose of adjourning the trial after he had not been successful in his earlier application.
The extent of the plaintiff’s activity in the days prior to the trial and after the first two days of hearing is difficult to reconcile with his complaints of feeling extremely unwell; having a massive headache and not sleeping. I am particularly concerned that despite these complaints, the plaintiff could attend a hotel and other premises for lengthy periods after court had concluded on both 8 and 9 July 2019. On 9 July 2019, the plaintiff did not leave the premises of the Maylands Hotel until 11.27 pm, despite knowing that the trial was continuing on 10 July.
The trial did not re-commence on 10 July until 2.15pm as the plaintiff told me he had a medical appointment with his general practitioner, Dr Caruso, at 8.30am. The plaintiff first argued with me for a period and then returned to cross-examination. He gave evidence that he felt bad and terrible, and stated that in his opinion, he was not fit to be cross-examined.[129] He also acknowledged that during the morning of 10 July when I had adjourned the matter to allow the plaintiff to attend a medical appointment, he had spent the morning seeing a lawyer, going to lunch with his family, attending at commercial premises and the TAB in Hutt Street.[130]
[129] T269.37 - T270.6, T278.27-29.
[130] T270.21 - T276.
The plaintiff’s evidence and statements made in court were often unimpressive and unconvincing. In cross-examination, he was at times unresponsive, blaming medical issues for his memory lapses, or argumentative and combative. The evidence of the plaintiff’s activities outside of the courtroom, both just prior to and during the trial were not of a person so ill that they could not come to court. I found in my ruling on the Inquiry that they demonstrated that the plaintiff was socially active with little regard for preparation of the trial.
Further surveillance activity of the plaintiff was led by the defendants in the Inquiry. This was in relation to the plaintiff’s attendance at a coffee shop with his son on the morning of 13 July 2019. The footage of that surveillance of just under 10 minutes, was played in court on 13 August 2019.[131] The footage showed the plaintiff inside the shop, drinking coffee with the Adelaide ‘Advertiser’ newspaper in front of him. The plaintiff initially flicked through the newspaper but then stopped at several different pages with his actions clearly demonstrating that he was reading the words. This included his head moving from left to right and his finger tracking the words, as he remained on the same page for a period of time. This went on slowly for several minutes. There were also several short periods of intense concentration and a time when the plaintiff pointed out an article to his son. The plaintiff also engaged with shop staff and other patrons, showing no signs of the discomfort or the behaviours that he displayed in the court room.
[131] T732-735, Exhibit DI 1.

I also take account of the plaintiff’s serious T-bone type motor vehicle accident on 20 January 2017, that caused his car to spin two to three times and be written off. The plaintiff’s general practitioner, Dr Wilson, recorded that the plaintiff had suffered headaches, neck pain, left shoulder and left hip pain between 21 January 2017 and 20 March 2017 following that accident.[551] There is no evidence that these symptoms are related to the third accident. I find that they were caused by the subsequent accident on 20 January 2017.
[551] Exhibit D11, p74-p79.
The plaintiff did not set out the damages he was seeking as a result of the third accident. He gave evidence that he had incurred medical expenses, including the cost of pain medications and that his children had paid these. His evidence was vague and no schedule of expenses was provided despite telling me he would have his children prepare this.[552] No schedule of Medicare payments was provided.
[552] T69.21-30.
The plaintiff told me that he can do very little at home, and his wife performs all domestic tasks. However, his evidence was not clear as to whether this care had been provided since the first accident, or only since the third accident. The plaintiff’s wife did not give evidence.
The plaintiff told me he was claiming economic loss but confirmed that he had not sought any employment since the third accident.[553] He believed that he was too old to find work. He attributed the loss of his career and business to the first accident, the fraud charges and the depression that followed.[554]
[553] T80.30 - T81.3.
[554] T80.30-38.
In relation to his situation generally, the plaintiff’s evidence was that he was now quite disabled and could do very little.[555]
[555] T81.32 - T83.19.
Heads of Damage
The plaintiff’s damages are to be assessed pursuant to common law principles, but applying the thresholds and limits set out in the Civil Liability Act 1936 (SA) (“the Act”)[556]. While a plaintiff’s damages are awarded as a single lump sum, they are assessed under several heads of damage. I set out my assessment under these heads.
Non-Economic Loss
[556] Section 51 of the Civil Liability Act 1936 (SA).
Damages for non-economic loss are for pain and suffering, loss of amenities (or loss of the enjoyment of life), disfigurement and loss of expectation of life. Section 52 of the Act provides a statutory threshold for damages to be awarded to an injured plaintiff. Section 52 provides as follows:
(1) Damages may only be awarded for non-economic loss if—
(a)   the injured person's ability to lead a normal life was significantly impaired by the injury for a period of at least 7 days; or
(b)   medical expenses of at least the prescribed minimum have been reasonably incurred in connection with the injury.
(2) If damages are to be awarded for non-economic loss, they must be assessed as follows:
(a) the injured person's total non-economic loss is to be assigned a numerical value (the "scale value") on a scale running from 0 to 60 (the scale reflecting 60 equal gradations of non-economic loss, from a case in which the non‑economic loss is not severe enough to justify any award of damages to a case in which the injured person suffers non-economic loss of the gravest conceivable kind);
(b) the damages for non-economic loss are to be calculated in relation to an injury arising from an accident that occurred during 2002 by multiplying the scale value by $1,710;
(c) the damages for non-economic loss are to be calculated in relation to an injury arising from an accident that occurred during 2003 as follows:
(i) if the scale value is 10 or less—by multiplying the scale value by $1,150;
(ii) if the scale value is 20 or less but more than 10—by adding to $11,500 an amount calculated by multiplying the number by which the scale value exceeds 10 by $2,300;
(iii) if the scale value is 30 or less but more than 20—by adding to $34,500 an amount calculated by multiplying the number by which the scale value exceeds 20 by $3,450;
(iv) if the scale value is 40 or less but more than 30—by adding to $69 000 an amount calculated by multiplying the number by which the scale value exceeds 30 by $4,600;
(v) if the scale value is 50 or less but more than 40—by adding to $115,000 an amount calculated by multiplying the number by which the scale value exceeds 40 by $5,750;
(vi) if the scale value is 60 or less but more than 50—by adding to $172,500 an amount calculated by multiplying the number by which the scale value exceeds 50 by $6,900;
(d)   the damages for non-economic loss in relation to an injury arising from an accident that occurred in a subsequent calendar year are to be calculated in accordance with paragraph (c) but the amount arrived at is to be adjusted (to the nearest multiple of $10) by multiplying it by a proportion obtained by dividing the Consumer Price Index for the September quarter of the previous calendar year by the Consumer Price Index for the September quarter 2002.
Section 52(1) of the Act therefore provides that the plaintiff can only be awarded damages for non-economic loss if it is found that his ability to lead a normal life was “significantly impaired” by his injuries for a period of at least seven days; or that he has reasonably incurred medical expenses in relation to his injuries of at least the prescribed minimum. In 2011 the prescribed minimum was $3,590.00.
I have no evidence before me of any medical expenses incurred by the plaintiff in connection with his injuries sustained in the third accident. I am not able to find that he incurred the prescribed minimum of medical expenses. In those circumstances, I must assess whether the plaintiff’s ability to lead a normal life was significantly impaired by his injuries for a period of at least seven days.
In State Government Insurance Commission v Fiorenti[557] it was stated that the court is charged with assessing the facts of a particular case subjectively for the purpose of determining whether a plaintiff comes within the threshold test, and that significant impairment must be more than appreciable impairment. In defining the threshold Bollen J put the test as follows:
It must connote something which has an active adverse effect on the ability of the claimant to lead the sort of life which that claimant normally led. I am conscious that my remarks do not illuminate the concept in the section very much. In truth, I think it unnecessary to define "significantly". You can tell whether something is significantly impaired whether you can define that phrase or not. A consideration of condition and activity before and after an event will give a mental picture of significant impairment or not.[558]
[557] [1991] SASC 2897.
[558] Ibid at [18].
Bollen J agreed with counsel that the threshold was there to oust from compensation very trivial complaints of very minor aches and pains.
I have found that in the third accident the plaintiff suffered short-term aggravation of pre-existing age-related degeneration in his spine and neck. He had recovered to his pre-accident levels of activity (although restricted by pre-accident injuries and other health issues), within six to eight weeks. Although I am not in a position to make findings as to the severity of the third accident, it has been admitted that it was a rear end collision. I accept the plaintiff’s evidence that there was at least moderate damage to the rear of the car he was in. This was not disputed by the defendants.
In relation to injuries suffered in the accident there was a delayed complaint of pain by the plaintiff to his general practitioner, and thereafter several attendances complaining of increased neck and back pain. I do not accept the plaintiff’s evidence that the third accident caused injuries to his shoulders or his hips. I find that the third accident did not cause permanent damage to the plaintiff’s spine. It is difficult for me to assess the impact of the third accident upon the plaintiff’s day to day activities as his evidence was vague and no evidence was called from his family as to the extent of his injuries and his limitations.
I find that the plaintiff’s injuries were more than trivial aches and pains, and I am satisfied that he meets the threshold to be awarded damages for non-economic loss pursuant to s 52(1)(a) of the Act. Those damages are to be assessed pursuant to the matters set out in s 52(2) of the Act. By that section an injured person’s total non-economic loss is to be assigned a numerical value (the scale value) on a scale running from 0 to 60, where the scale reflects 60 equal gradations of non-economic loss, from a case in which the non-economic loss is not severe enough to justify any award of damages, to a case in which the injured person suffers non-economic loss of the gravest conceivable kind.
The plaintiff’s injuries were very modest. Although direct comparisons are always difficult to rely upon, in the case of Farrington v Sampson[559] the plaintiff’s injuries were assessed at a scale figure of 5 where she had suffered a soft tissue injury to the neck and a fractured sternum that caused severe and disabling pain for a number of weeks, and resolved completely within three months of the accident. The plaintiff was 45 years of age and returned to work six weeks after the accident. In Figallo v Lam[560] the plaintiff’s damages were assessed at a scale figure of 6, where he had suffered soft tissue aggravation of pre-existing injury to his neck, and where only 10% of his impairment could be related to the motor vehicle accident in dispute. The plaintiff was 45 years of age and had continued to work.
[559] [2013] SADC 47.
[560] [2001] SADC 154.
Having considered the evidence in relation to the plaintiff’s injuries sustained in the third accident, and the limited evidence I have in relation to his functioning, I assess the plaintiff’s damages at a scale value of 3. For an accident in 2011 that equates to damages of $4,340.00.
Loss of Earning Capacity/ Economic Loss
The plaintiff has not worked since the closure of his business in 2002. From that date until at least late 2008 the plaintiff was suffering from a severe psychiatric illness and was not in any position to work. The plaintiff’s evidence is that since his recovery from his psychiatric illness he has not sought employment and he does not know what he would be qualified to do. There is no evidence upon which a claim for any past economic loss or loss of earning capacity can be based.
I find that the injuries sustained in the third accident, which were no more than a short-term aggravation of the plaintiff’s pre-existing neck and back injuries, would not prevent the plaintiff from obtaining work for which he is qualified. The plaintiff’s evidence was that he had, prior to the first accident, run import and export businesses. Prior to the first accident and until it was closed in 2002 the plaintiff operated a wholesale business in relation to dried fruit and nuts. There is no evidence that the injuries sustained in the third accident would prevent the plaintiff from running these types of businesses or working in those type of businesses. The plaintiff’s evidence was that before the first accident he had also worked as a chef, had run a coffee shop, and had worked as a journalist when living in the Middle East. He also gained qualifications to work as a social worker and had worked in that role when he first came to South Australia. I find that the plaintiff’s short-term injuries suffered in the third accident would not prevent him from working in any of those occupations.
I find that the plaintiff has not proved on the balance of probabilities that he has suffered any reduction in his earning capacity as a result of injuries sustained in the third accident. He has not proved on the balance of probabilities that he has suffered any loss of earnings or any loss of earning capacity. I do not award any damages for economic loss.
Gratuitous and Paid Services
Damages in respect of gratuitous services are restricted by s 58 of the Act, in that damages are only to be awarded to compensate for the gratuitous services provided by a parent, spouse or child of an injured person, and those damages are not to exceed an amount equivalent to four times the state average weekly earnings.
The plaintiff gave evidence that since the third accident his wife has done everything for him. She performs all domestic chores. He also gave evidence that his wife and children have performed such services since the first accident, and particularly during the period that he was suffering from his severe psychiatric illness where he described himself as a “vegetable”. The plaintiff in his evidence drew no distinction between the assistance that his wife gave him after the first accident or after his psychiatric illness or after his second and third accidents. I attempted to draw that evidence out of the plaintiff but was not able to do so.
Based upon my finding that the plaintiff suffered no more than a short-term aggravation of his pre-existing injuries to his neck and spine in the third accident, I find that there is no evidence upon which I can award damages for additional gratuitous services provided to the plaintiff after the third accident. I also find that at the time of the third accident and thereafter, the plaintiff has suffered from a number of other health issues unrelated to the third accident which may have led to his need for assistance from his wife and family. These include the restriction and impingement in both shoulders, the pain and limitation in both hips, cardiac issues, and digestion and other stomach related issues. I award no damages for gratuitous services.
No evidence was provided by the plaintiff of any paid services incurred by him since the third accident. I award no damages for paid services.
Future Medical Needs
No evidence was submitted by the plaintiff of any future medical treatment required as a result of the injuries I have found that he suffered in the third accident. The plaintiff’s evidence was that he is currently only taking pain medication as he is not in a position to pay for any other treatment. However, no evidence of any required treatment was provided to the court. I award no damages for future medical needs.
Past Medical expenses and other Special Damages
No evidence of medical expenses or other special damages incurred by the plaintiff as a result of any injury sustained in the third accident was provided. The plaintiff has not established, on the balance of probabilities that he incurred any medical expenses as a result of such injuries. I award no damages for past medical expenses or any other special damages.
Interest
The only damages that I have awarded to the plaintiff are damages for non-economic loss. Pursuant to s 56 of the Act interest is not to be awarded on damages compensating non-economic loss.
Conclusion
I award damages to the plaintiff on his claim related to the third accident in the sum of $4,340.00.
Orders
The formal orders of the court are:
1.    That the name of the Defendant in District Court Action Number 100 0f 2015 be amended to Daniel Peter Lock.
2.    That the plaintiff’s claim in relation to the first accident, being District Court Civil Action No. 429 of 2012 is dismissed.
3.    That the plaintiff’s claim in relation to the second accident, being District Court Action No. 100 of 2015 is dismissed.
4.    That there be Judgement for the plaintiff in relation to the third accident, being District Court Action No.1901 of 2013, in the sum of $4,340.00.
5.    The court will hear the parties as to any consequential orders and costs.
Annexure I - History of Proceedings:
1.3 December 2004: Proceedings instituted in Adelaide Magistrates Court on behalf of the plaintiff regarding the first accident claim. Hume Taylor are solicitors for the plaintiff.
2.5 December 2005: the plaintiff’s wife appointed as Litigation Guardian, and time for service of proceedings extended to 6 June 2006.
3.8 June 2006: further order made extending time for service to 3 July 2007.
4.5 July 2007: notice issued by Court of Intent to Inactivate the Action.
5.31 July 2007: action dismissed for want of prosecution.
6.7 October 2010: action re-instated by Adelaide Magistrates Court. The plaintiff attended court in person without Litigation Guardian.
7.27 October 2010: Hamdan Lawyers filed a Notice of Change of solicitors acting for plaintiff.
8.5 November 2010: Court notes proceedings could not be served upon the defendant and the Motor Accident Commission was joined as a defendant
9.15 November 2011: application to strike out plaintiff’s claim for want of prosecution.
10.1 December 2011: the plaintiff filed a responding affidavit addressing his change of solicitors and reasons for failure to attend medical appointments arranged by defendants.
11.7 February 2012: Simon Flower of Flower and Associates files a Notice of Change of Solicitors on behalf of the plaintiff.
12.27 February 2012: proceedings transferred to District Court.
13.1 May 2012: order made that the plaintiff file and serve a statement of loss and a formulated claim.
14.7 March 2013: order made that the plaintiff file a Statement of Loss by 12 April 2013.
15.28 June 2013: proceedings instituted on behalf of the plaintiff in relation to the third accident in the District Court.
16.28 June 2013: proceedings instituted on behalf of the plaintiff in relation to the second accident in the Adelaide Magistrates Court.
17.30 September 2013: Mr Flower for the plaintiff indicated to the court that he had just learned that the plaintiff had had a litigation guardian appointed to act for him since 5 December 2005, despite acting for the plaintiff since late 2011.
18.20 January 2014: order made for removal of litigation guardian.
19.3 April 2014: matter referred to a listing conference in the District Court.
20.1 May 2014: matter listed for trial commencing 4 May 2015.
21.16 January 2015: proceedings in relation to second accident transferred to District Court.
22.29 January 2015: Gary Inglis & Co filed a Notice of Acting for the plaintiff.
23.23 February 2015: Judge Slattery ordered that the plaintiff’s three actions proceed together through the District Court, and trial listed before her Honour Judge Tracey.
24.23 February 2015: order made postponing the first day of trial to 5 May 2015 to accommodate the plaintiff’s counsel, Mr Brohier.
25.23 February 2015: orders made by Judge Slattery that the plaintiff file and serve a list of special damages by 4 March 2015; a list of any future medical expenses by 17 March 2015 and a written opening by 23 April 2015 in each action. The defendants were ordered to file trial books and tender books.
26.The plaintiff did not comply with the trial orders made by Judge Slattery.
27.30 April 2015: the plaintiff’s solicitor emailed the defendants’ solicitors advising that the plaintiff had been overseas to secure funding for the trial. He was due to return by 29 April 2015 but was delayed by ill health.
28.1 May 2015: the plaintiff’s solicitor emailed the defendants’ solicitors and confirmed the plaintiff had funds to run his trial. He would be back in Adelaide the morning of 5 May 2015.
29.4 May 2015: at a Directions Hearing before Judge Tracey counsel for the plaintiff advised that the plaintiff had travelled to Jordan on 10 April 2015 and his return had been delayed until 5 May 2015. The trial was adjourned to 7 May 2015. It was confirmed that the plaintiff had funds to run the trial.
30.6 May 2015: at a Directions Hearing before Judge Tracey counsel for the plaintiff advised that the plaintiff had yet to return to Australia. At this hearing, counsel for the plaintiff indicated that no funds to cover the trial costs had been provided by the plaintiff.
31.7 May 2015: trial commenced before Judge Tracey with the plaintiff’s counsel indicating that it was not clear if he had instructions to continue to act and that the plaintiff had not yet provided funds to cover the trials costs. The plaintiff was in court. The trial was adjourned to 8 May 2015.
32.8 May 2015: the plaintiff’s solicitor filed an application to cease acting for the plaintiff. The plaintiff attended court and confirmed that he had terminated Mr Inglis’ instructions. Plaintiff filed a Notice of Acting on his own behalf. The plaintiff confirmed to the court that Mr Inglis had requested trial funds and he had not been able to provide those. The trial was adjourned until further order.
33.8 May 2015: Judge Tracey ordered that the defendants’ costs thrown away as a result of the adjournment of the trial be taxed and paid forthwith. She also ordered that the plaintiff’s actions be stayed pending payment of the taxed costs. At the hearing, the plaintiff indicated his agreement to the orders.
34.10 June 2015: the plaintiff lodged an appeal in the Supreme Court in relation to the order for immediate payment of the taxed costs and the stay of proceedings pending payment.
35.23 July 2015: appeal heard by Justice Sulan in the Supreme Court and the costs orders made by Judge Tracey were amended by consent.
36.10 August 2015: Tindall Gask Bentley file a Notice of Acting for the plaintiff.
37.28 April 2016: order made in the District Court referring the actions to the next available listing conference and that the matter be judge managed to preserve an effective trial date.
38.17 May 2016: actions listed for trial commencing 1 May 2017.
39.6 February 2017: Directions Hearing before Judge Slattery where plaintiff’s counsel indicated that Tindall Gask Bentley were still waiting for funds to be deposited into their trust account before the matter could proceed to trial.
40.15 March 2017: the plaintiff filed a Notice of Acting in person.
41.23 March 2017: the plaintiff filed an application to vacate the trial date so that he could travel to Jordan to obtain funds and then instruct lawyers.
42.6 April 2017: plaintiff’s application to vacate the trial date was refused by Chief Judge Evans on the basis that the plaintiff had had since 2014 to raise money from the property in Jordan.
43.12 April 2017: plaintiff filed a further application to vacate the trial date on the basis that Tindall Gask Bentley had not released his file to him;
44.24 April 2017: Chief Judge Evans granted the plaintiff’s application to adjourn the trial in the interest of justice.
45.28 July 2017: plaintiff attended a Directions Hearing and indicated that he would represent himself at trial unless he could obtain funding which would allow him to retain legal representation.
46.12 February 2018: plaintiff attended a Directions Hearing where he indicated that he was waiting to receive his file from Tindall Gask Bentley and without that file he could not prepare his matter for trial.
47.7 May 2018: the court listed the action for trial commencing 8 July 2019 with 20 days set aside.
48.18 July 2018: Judge Slattery made orders that the parties file trial documents by 31 October 2018. The plaintiff complied with these orders.
49.12 April 2019: the Motor Accident Commission agreed to pay the court listing fee when the plaintiff had not paid that.
50.22 May 2019: plaintiff filed an application to adjourn the trial on the basis of his lack of capacity to conduct the trial given his lack of legal representation; the fact he did not have his files from Tindall Gask Bentley, and his issues with the English language.
51.30 May 2019: Directions Hearing before Judge Deuter who advised that she would be the trial judge. Judge Deuter made orders for production of documents held by the Tindall Gask Bentley; the affidavits, be filed on discovery issues by Tindall Gask Bentley and the defendants’ solicitors; an affidavit be filed by the plaintiff regarding ownership of a property in Jordan and steps taken by him to release funds by selling that property; and leave granted to the plaintiff to issue subpoenas for witnesses to attend trial or produce documents.
52.12 June 2019: Directions Hearing before Judge Deuter. The plaintiff indicated that the trial would proceed and that he was ready to proceed, as he had secured funding to instruct lawyers to act on his behalf. The plaintiff’s application to adjourn the trial was dismissed.
53.17 June 2019: plaintiff filed an affidavit stating that he had not been able to raise funds for legal representation and he again sought an adjournment of the trial to allow him time to travel to Jordan to realise funds.
54.18 June 2019: Directions Hearing before Judge Deuter where the plaintiff formally sought to re-open his application to adjourn the trial.
55.21 June 2019: argument on the plaintiff’s application to adjourn the trial. The plaintiff sought an adjournment of ten months. Application was refused by Judge Deuter.
56.24 June 2019: Judge Deuter published reasons for her refusal to adjourn the trial.
57.1 July 2019: plaintiff filed a Notice of Appeal in the Supreme Court seeking that the orders made by Judge Deuter on 24 June 2019 be quashed.
58.1 July 2019: plaintiff filed an application in the Supreme Court seeking a stay of the order of Judge Deuter that the trial should proceed.
59.3 July: Justice Kelly in the Supreme Court refused to grant a stay of the order that the trial should proceed.
60.8 July 2019: trial commenced in the District Court before Judge Deuter.
61.15 July 2019: trial suspended during cross-examination of the plaintiff due to concerns raised regarding the plaintiff’s his mental health and his capacity to continue without a Litigation Guardian to act on his behalf.
62.17 July 2019 – 13 August 2019: Inquiry conducted to determine if plaintiff was a person under a disability as defined by Rule 4 of District Court Rules 2006.
63.16 August 2019: Judge Deuter published reasons finding that the plaintiff was not a person under a disability and did not require a Litigation Guardian. Order made that trial re-commence.
64.19 August 2019: trial re-commenced. Plaintiff refused to re-enter the witness box and continue his evidence or to call evidence on his behalf;
65.20 August 2019: Judge Deuter ruled that plaintiff’s case would be treated as closed and defendants invited to open their case.
66.23 August 2019: plaintiff’s application for permission to appeal Judge Deuter’s’ decision refusing to adjourn the trial was refused by Justice Kelly.
67.29 August 2019: plaintiff files an Application in the Supreme Court seeking permission to appeal the decision of Justice Kelly of 3 July 2019 refusing to stay the trials of these actions.
68.3 September 2019: the Full Court of the Supreme Court refuses permission to the plaintiff to appeal the order of Judge Deuter of 24 June 2019 refusing an adjournment, and refused permission to appeal the decision of Justice Kelly refusing to grant a stay of the order of Judge Deuter refusing to adjourn the trial.
69.6 September 2019: plaintiff makes verbal application to adjourn the trial to allow time for him to arrange for his witnesses to be called to give evidence. Application refused by Judge Deuter and plaintiff’s case was closed.
70.10 September 2019: plaintiff make further verbal application to adjourn the trial to call witnesses and obtain legal representation. Application refused by Judge Deuter and the defendants close their case.
71.10 September 2019: Judgment reserved.
72.23 September 2019: plaintiff filed urgent application seeking that he be allowed time to call his witnesses for examination, and that delivery of the court’s judgment be withheld until that had occurred.
73.14 October 2019: plaintiff gave evidence on oath regarding his application.
74.29 October 2019: plaintiff and defendants counsel address the court on plaintiff’s application. Ex-tempore decision handed down by Judge Deuter refusing plaintiff’s application to effectively re-open his case.