Ferguson v BECHT - [2000] WADC 68

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: FERGUSON -v- BECHT [2000] WADC 68

CORAM: COMMISSIONER REYNOLDS

HEARD: 13-14 DECEMBER 1999

DELIVERED : 10 MARCH 2000

FILE NO/S: CIV 1029 of 1998

BETWEEN: MICHAEL CHARLES FERGUSON
Plaintiff
AND
IDA BECHT
Defendant

Catchwords:

Damages - Motor vehicle accident - Neck and low back injuries - venous thrombosis - Ear infection and graze on an arm - Business collapse before accident - Future intentions on work at the time of the accident - Plaintiff 60 years of age - Pre-existing spinal degeneration - Plaintiff permanently incapable of any form of work because of accident

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Damages assessed in the total sum of $96,160

Representation:

Counsel:

Plaintiff: Mr D L Jones
Defendant: Mr P R Momber

Solicitors:

Plaintiff: Kuscevich & Associates
Defendant: Peter Momber

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

Nil

Case(s) also cited:

Nil

COMMISSIONER REYNOLDS>:

Introduction

The plaintiff was born on 10 May 1939 and is 60 years of age. On 4 February 1996 he was a passenger in the back of an old Australia Post van ("the van") which was parked on Rosedale Road, Chidlow when a Toyota van driven by the defendant collided into the rear of the van ("the accident"). The plaintiff claims that he was injured as a result of the accident and seeks damages for loss of amenities and enjoyment of life and past and future economic loss. The defendant admits that the accident was caused by her negligence but denies that the plaintiff has suffered any injury or loss. The matter is therefore one of assessment of damages.

The accident

The rear of the van was fitted with bench seats on both sides. A person sitting on one of the benches would be side on to the driver and the front passenger and looking across the middle of the van to the bench on the other side. There were two doors at the back of the van. Each of the doors was hung vertically and hinged on the back near the side of the van. The doors opened outwards from the centre of the rear of the van.
As I understand it when the Toyota van collided into the right rear of the van a back door of the van was thrown open and the plaintiff was ejected from the back of the van and onto the roadway. The plaintiff says that he was knocked unconscious and woken up later by an ambulance officer.

The plaintiff's pre-accident history

The plaintiff was born in England. He left school in 1955 and commenced an apprenticeship. In 1958 he joined the RAF as an electrician and was responsible for things such as airfield and hangar lighting and repair and maintenance of aircraft, cranes and motor vehicles. In 1963 he joined an electrical contracting firm and in 1964 commenced work with British European Airways which later became known as British Airways. While at British Airways he obtained a qualification in electrical and instrument engineering. He stopped work with British Airways and came to Australia in 1982.
I have set out the plaintiff's work history after his arrival in Australia later in this decision under the heading of Economic loss. In summary, the plaintiff worked as an electrician from 1982 until January 1990. In about October 1990 both he and his wife purchased a courier business known as Country Wide Couriers. The business was operated by Newburg Holdings Pty Ltd ("Newburg") and the plaintiff and his wife purchased the only two shares in the company and also became directors of the company. They operated the business until 30 November 1995 when Newburg went into liquidation. Thereafter the plaintiff was unemployed and after Christmas 1995 the plaintiff and his wife went to the south-west of the state for about a week for a holiday with the plaintiff's wife's parents who were visiting from England. They then all went to Kalbarri for another holiday. The accident occurred sometime after they had returned from Kalbarri.

The medical evidence and the plaintiff's injuries

Venous thrombosis, cervical and lumbar spine injuries

At the time of the accident the plaintiff had multi-level lumbar disc degeneration from L2/3 to L5/S1 inclusive. In 1984 he injured his lower back in a work accident and was off work for the following year or so. I will refer to these matters in more detail later under the heading of economic loss.
In para 6 of the statement of claim the plaintiff has set out his injuries as post traumatic amnesia, a traumatic injury to the left side of the head leading to a left ear infection, a soft tissue sprain of the cervical spine, an aggravation of pre-existing degenerative changes in the lumbar spine and an abrasion to the left arm.
After the accident the plaintiff was taken to Swan Districts Hospital. He was then transferred to Royal Perth Hospital and admitted on 5 February 1996. He complained of low back pain radiating into the right leg. Mr Kagi, an orthopaedic surgeon, diagnosed an aggravation of degenerative stenosis. The plaintiff's treatment consisted of bed rest and analgesia. On 15 February 1996 he was transferred to Royal Perth Rehabilitation unit in Shenton Park and was treated with physiotherapy, hydrotherapy and mobilisation. He was discharged on 23 February 1996.
On 7 March 1996 the plaintiff was readmitted to Royal Perth Hospital with a deep vein thrombosis which was treated with an oral anti-coagulant known as Warfarin. He was discharged from hospital on 15 March 1996. In a report dated 18 May 1999 Dr Bastian, a consultant physician, expressed the view, which I accept, that it is very likely that the thrombosis was due to the plaintiff's immobility caused by his injuries from the accident. He also stated in his report that the normal treatment for an uncomplicated deep venous thrombosis is a 6 to twelve week course of the oral anti-coagulant known as Warfarin.
On 26 February 1996 the plaintiff first attended on Dr Harrison, his general medical practitioner, in relation to the accident. At that time the plaintiff was still experiencing discomfort in his back with a global weakness of his right leg. On 1 June 1996 Dr Harrison reported that the plaintiff was still suffering from lower back pain which had settled considerably on intensity. The plaintiff was able to move his right leg with only a minimal limp and power, sensation and reflexes were normal in both legs. In a report dated 4 June 1996 Mr Slinger, an orthopaedic surgeon, stated that the plaintiff was still using Warfarin medication at that time.
Mr Slinger also stated in his report dated 4 June 1996 that initially the plaintiff was mobilised in a wheelchair and that subsequently he has progressed from a walking frame to crutches and then to a single crutch and by 3 May 1996 he was able to walk unaided albeit with a limp. Mr Slinger noted on examination that the plaintiff had cervical spine tenderness about the area of the left trapezius and that movements were full with exception of rotation and lateral flexion to the right which were limited to three quarters of the expected range. The plaintiff informed Mr Slinger on 3 May 1996 that his neck symptoms had improved markedly since the accident. Mr Slinger also noted on examination on 3 May 1996 that the plaintiff was tender in the posterior midline extending from L1 to S1. Mr Slinger expressed the opinion that the plaintiff's symptoms were consistent with a soft tissue injury to the cervical spine and lumbar spine.
The plaintiff attended on Mr Sneddon, an orthopaedic surgeon, on 4 November 1997 for the preparation of a medico-legal report. At that time the plaintiff complained to Mr Sneddon that his right leg gave way if he walked for anything more than approximately an hour. He also complained of stiffness and soreness in his low back region which was especially noticeable each morning. The low back stiffness and soreness seemed to improve with mobilisation and taking a hot shower. On physical examination there was no tenderness over the cervical or thoracic spine and there appeared to be diffused tenderness over the entire lumbar spine region. Mr Sneddon stated in his report dated 20 November 1997 that he found it impossible to determine the cause of the plaintiff's incapacity on the information he had at that time.
Between 20 November 1997 and 12 December 1997 Mr Sneddon perused the Royal Perth Hospital file on the plaintiff in relation to the accident. In a report dated 12 December 1997 Mr Sneddon stated that it appeared that the accident aggravated pre-existing degenerative changes in the plaintiff's lumbar spine which had previously been present for low back pain as well as right leg pain. Mr Sneddon reached this opinion based on the information that had been previously provided to him, his examination of the plaintiff on 4 November 1997 and the information on the Royal Perth Hospital file relating to the accident.
The plaintiff attended on Mr Crockett, an orthopaedic surgeon, on 17 June 1998 for the preparation of a medico-legal report. The plaintiff told Mr Crockett at the time that his neck only gave him problems if he travelled in a car for more than an hour. He also told Mr Crockett that his low back was "not bad at present" and that he had been using Brufen and Prothiadin. He also said that his back tended to wake him at night every four hours or so and that the soreness in the middle of the small of his back radiated to his right leg. The plaintiff also told Mr Crockett that his back was very stiff in the morning which made it difficult for him to dress himself. Upon examination Mr Crockett noted that the plaintiff weighed 107 kilograms which was an increase of twenty six kilograms since the accident. Back movements were limited and carried out with care when standing, moving around and getting on and off the couch. Forward flexion was significantly limited to about one third of the range. Extension, rotation and lateral flexion were much better. The plaintiff's neck movements were full and there was no neurological loss in either upper limb. Mr Crockett expressed the opinion in his report dated 27 July 1998 that the plaintiff had sustained a soft tissue sprain of his cervical spine and aggravation of pre-existing degenerative changes in his low back as a result of the accident.
On 4 January 1999 the plaintiff attended on Mr Slinger for a review. He had last seen Mr Slinger on 3 May 1996. In a report dated 31 March 1999 Mr Slinger stated that the plaintiff had not received any specific treatment since his last review. Medication was confined to Brufen, Prothiadin and some other unidentified tablet used for relieving headaches. On examination Mr Slinger noted that the plaintiff was somewhat overweight and walked using a single walking stick in the right hand. Tenderness was noted in the cervical spine and some movements were limited. There was no tenderness or wasting in either shoulder. Some movements were limited because they produced low back pain. Mr Slinger expressed the opinion that the plaintiff's symptoms appeared to have progressed since 3 May 1996 which he thought could only be related to presumed progressive degenerative change in both the cervical and lumbar spine.
The plaintiff was reviewed by Mr Sneddon on 24 May 1999 for the preparation of a further medico-legal report. The plaintiff complained to Mr Sneddon of constant low back pain which was worse if he sat or stood for too long in any one position. He also complained of the presence of right leg pain which radiated posteriorly down his right thigh. The plaintiff told Mr Sneddon that he was no longer experiencing any neck symptoms. Mr Sneddon stated in his report dated 26 May 1999 that the plaintiff had a permanent disability in relation to his lumbar spine.
I find that the accident caused a mild soft tissue injury of the plaintiff's cervical spine. The plaintiff's cervical spine has not been symptomatic since sometime between January and May 1999. I also find that the accident caused an aggravation of a pre-existing degenerative condition of the plaintiff's lumbar spine. I find that the plaintiff will continue to have low back symptoms.

Head trauma and left ear infection

I have already mentioned that the plaintiff was ejected from the rear of the van and rendered unconscious as a result of the accident. Accepting this I am satisfied that the plaintiff suffered a trauma injury to the head. There is an issue between the parties as to whether the trauma injury led to a left ear infection.
In a report dated 28 May 1999 Mr Kagi stated that whilst an in-patient the plaintiff complained of problems with an ear and attributed it to the accident. Mr Kagi makes no further comment about any ear problem save that an arrangement was made for the plaintiff to consult an ear nose and throat surgeon. Dr Harrison stated in his report dated 1 June 1996 that the plaintiff told him that he suffered from intermittent episodes of vertigo and earache when he was in Royal Perth Hospital. Dr Harrison stated in the same report that in June 1996 the plaintiff developed symptoms and signs of right otitis externa which were identical to the earache he experienced when he was initially in Royal Perth Hospital. Given that Dr Harrison stated that the symptoms developed in June 1996 and that his report is dated 1 June 1996 I take it that the symptoms developed on 1 June 1996. Dr Harrison stated that the right otitis externa was treated with antibiotics and settled rapidly.
It is clear from the evidence that in September 1997 the defendant's insurer asked Mr Sneddon if he had any opinion on the cause of the plaintiff's deafness when the plaintiff was initially in Royal Perth Hospital. Mr Sneddon stated in his report dated 20 November 1997 that he found it impossible to express an opinion on the cause. In a report dated 26 May 1999 Mr Sneddon suggested that the treating ear nose and throat surgeon be contacted in order to establish the cause of the plaintiff's deafness when he was in hospital. Mr Kagi made the same suggestion in an indirect way in his report dated 28 May 1999.
The plaintiff gave evidence that gravel was deposited in his left ear when he was ejected from the van and hit his head on the roadway. He gave evidence that after he was admitted to Royal Perth Hospital he spoke about pain in his left ear on three occasions and that it was not until three days after his admission by which time he was deaf in his left ear that he was sent to an ear nose and throat specialist. He said that the ear nose and throat specialist removed lots of debris from his ear and used drops to treat the infection. He added that his ear became infected on several later occasions none of which was as bad as the first. The plaintiff also indicated that he later had an infection in his right ear. He said that a nurse told him that he had probably transferred the infection from the left ear to the right ear with his hand as a result of itching his ears. The plaintiff rejected the suggestion that he had problems with his ears before the accident from years of diving. He gave evidence that he did not have any problem with his ears before the accident.
The plaintiff's evidence that he had an infection in his right ear when he was in hospital is not necessarily inconsistent with the evidence contained in Dr Harrison's report dated 1 June 1996 that he developed symptoms and signs of right otitis externa in June 1996 because it is not clear from Dr Harrison's report that the plaintiff's right ear was symptomatic for the first time in June 1996. There is no mention in a report dated 14 May 1996 by Dr Dawes, the medical administrator at Royal Perth Hospital, of the plaintiff complaining about or being treated for an ear infection. However it is clear from Mr Kagi's report dated 28 May 1999 that the plaintiff did complain of problems with an ear when he was in Royal Perth Hospital. There is no evidence before me from any nurse who attended on the plaintiff in Royal Perth Hospital about any ear infection. More important, there is no evidence before me from the ear nose and throat specialist who examined the plaintiff's left ear.
Obviously if there was medical evidence in support of what the plaintiff has said about his left ear then his case on this point would be much stronger. Generally and specifically in relation to issues on economic loss I found the plaintiff to be unreliable. However given that Mr Kagi has confirmed that the plaintiff complained about problems with an ear when he was in Royal Perth Hospital and that it is likely that the plaintiff's head hit the roadway in the course of the accident I find on balance that the accident was at least a contributing cause for an infection developing in the plaintiff's left ear. The discomfort to the plaintiff because of the ear infection was only short term.

Post traumatic amnesia

I find that the plaintiff was rendered unconscious for a period of about 20 minutes or so as a result of his head striking the roadway in the accident.

Abrasion to the left arm

On balance I accept the plaintiff's evidence that he sustained an abrasion to the left arm when he came into contact with the road surface. The abrasion was minor and no sutures were required.

Renal colic

Dr Harrison stated in his report dated 1 June 1996 that after the plaintiff was treated for the venous thrombosis he next developed a left low pain and was subsequently found to have a left kidney stone. In a report dated 12 May 1999 Dr Bastian stated that the plaintiff was admitted to Royal Perth Hospital on 31 March 1996 and kept in for one day with an episode of renal colic. I understand from Dr Bastian's report that the plaintiff told him that he was readmitted a week later for the same type of problem. In about May 1999 the plaintiff told Dr Bastian that he had not suffered from renal colic prior to the accident. It seems that there was some suggestion by the plaintiff that he believed the episode of renal colic was accident related. In a report dated 12 March 1999 Mr Crockett stated that renal colic can be related to lowered fluid intake which in turn could be related to bed rest and immobility. However Dr Bastian did not believe that there was any evidence to relate the episode of renal colic to the accident.
I find that the plaintiff's episode of renal colic is not accident related.

Rib injury

Mr Sneddon set out in his report dated 20 November 1997 that the plaintiff sustained a recent injury to his right ribs when he fell against a steel post. Mr Slinger stated in his report dated 31 March 1999 that the plaintiff told him that his right leg had given away on several occasions producing a laceration on one occasion and cracked ribs on another. The plaintiff's statement of claim does not allege that he suffered any rib injury as an indirect result of the accident. Both Mr Sneddon and Mr Slinger have not attributed any rib injury to any problem that the plaintiff may have had with his right leg as a result of the accident.
I am not satisfied that any rib injury suffered by the plaintiff in about October/November 1997 is related to the accident.

Economic loss

The key area of dispute in this particular case is the plaintiff's claim for economic loss. The plaintiff's claim for both past and future economic loss is based on an incapacity to work from the time of the accident on a full time basis as a co-owner with his son or as an employee of his son in one or both of an industrial electrical business and a dive/charter boat business consistent with an alleged arrangement made between himself and his son in about August 1995, ie before Newburg went into liquidation in November 1995 and before the accident on 4 February 1996.
The plaintiff's claim for past economic loss set out in a schedule filed on his behalf is based on him accepting wages of between $350 and $400 per week (an average of $375 per week) gross, ie $313.10 net per week for six months from 1 July 1996 to 31 December 1996 in the total sum of $8140.60 while his son's electrical business established itself and thereafter a wage of $600 gross per week, ie $460.40 net per week from 1 January 1997 to 13 December 1999 in the total sum of $70,901.60. The plaintiff therefore claims past economic loss from 1 July 1996 to 13 December 1999 in the total sum of $79,042.20.

The plaintiff's claim for future economic loss set out in a schedule filed on his behalf is based on him working for the next 10 years to age 70 years earning $600 gross per week, ie $460.40 net per week. Applying the 6 per cent multiplier for 10 years of 395.5 to the sum of $460.40 net per week produces a total sum of $182,088.20. It is submitted that this amount should be discounted by no more than 10 per cent for contingencies. Applying a discount of 10 per cent produces a total sum of $163,879.38.
The basis of the plaintiff's claim for each of past and future economic loss gives rise to a number of issues that need to be considered and determined. They include (1) the plaintiff's intentions, if any, at the time of the accident in relation to working in the future with or for his son, (2) the plaintiff's pre-accident and post accident earning capacity, (3) the plaintiff's past and future earnings prospects pursuant to any such intention, (4) the prospects of the plaintiff but for the accident working as an electrical contractor or an employee electrician and (5) the plaintiff's retirement age. I now turn to consider these issues.
The plaintiff's intentions prior to the accident in relation to working in the future with his son and the timing, type and extent of the work, if any, are all matters of fact. Findings on such matters requires assessments of the credibility and reliability of the plaintiff and his son as witnesses in light of the evidence as a whole. Of course it is always open to accept or reject the whole or part of the evidence of a particular witness.
I must say that having had the opportunity of observing the plaintiff's demeanour in the witness box and having listened to some of the things he said and how he said them I have serious concerns about the reliability of key aspects of his evidence relating to the issue of economic loss. So great are my concerns that I reject his evidence where there is no credible, reliable and unequivocal evidence to support it.
Before I go any further I wish to make it clear that nothing I say about the collapse of the plaintiff's courier business should be taken to mean that I think he behaved dishonestly in any way in the running of the business. I think that the failure of the courier business was a traumatic event in the lives of both the plaintiff and his wife and that it caused them distress. I also wish to make it clear that I have not drawn any adverse inference against the plaintiff because of the fact that his courier business collapsed.
In this particular case I have no doubt that the plaintiff has deliberately sought to mislead medical practitioners and the court on how and to what extent the accident has affected him. He has sought to eliminate or at least minimise the impact of the collapse of the courier business and maximise the impact of the accident. I propose to refer to and comment on some of the plaintiff's pre-accident history and also some of the information he gave to medical practitioners.
There is no issue with the fact that the plaintiff is qualified as an electrician, an aviation technician and an instrument technician and that he has a work history of about 40 years in the United Kingdom and Australia. He migrated with his family from the United Kingdom to Perth in 1982. He then went to the north west of this State and worked as a sub‑contractor on conveyors and crusher plants. In 1984 he commenced work with Kilpatrick Green Pty Ltd as an electrician. In the same year he was injured at work when he "twisted around" when carrying a bucket full of bolts. He felt a burning pain in his neck. He also suffered an injury to his back for which he received physiotherapy and instruction on how to properly lift heavy objects.
As a result of this work accident the plaintiff was off work continuously for the following year or so. In a report dated 20 November 1997 Mr Sneddon stated that the plaintiff's injuries must have been severe for him to have had over a year off work. Mr Crocker gave evidence that the radiological material indicated that prior to the accident on 4 February 1996 there had been a fair amount of damage at the L4-5 and L5-S1 levels with the L4-5 disc significantly damaged and some of the material had prolapsed. Notwithstanding the extent of the damage Mr Crocker agreed that the plaintiff may have been asymptomatic from 18 months or so after the work accident. Whether or not the plaintiff was asymptomatic from that time is a matter of fact for me to determine and I find that he was.
In 1986 the plaintiff commenced his own subcontracting business known as Ferguson Electrical Services. From about early July 1989 to January 1990, a period of about 26 weeks, the plaintiff worked exclusively for L J Roffey Electrical Engineering ("LJ Roffey") and earned an average of about $630 gross per week. In 1990 the plaintiff and his wife purchased the courier business owned by Newburg and they became the only two shareholders of Newburg. The plaintiff became a director of Newburg. The plaintiff gave evidence that he wanted to get into a business that allowed more time with the family.
In a report dated 4 June 1996 Mr Slinger stated inter alia that:
"There was past history of low back pain which occurred following an accident at work 10 years ago at which time he was working as an electrician, that symptoms persisted for a period of time, then improved but did change his lifestyle to more sedentary activities. In that respect he indicated he had discontinued active sports including football, that he has been careful with respect to physical activities, particularly lifting but was sufficiently active to perform most of his day to day activities."
In cross‑examination the plaintiff agreed with the accuracy of this statement by Mr Slinger. He also said that he had last played rugby in England before he came to Australia in 1982. This was actually before the work accident. He later said that he changed his lifestyle as a precaution and that previously he had not "bothered to consider how one should lift things".
The plaintiff was admitted to Royal Perth Hospital in February 1996 after the accident under the care of Mr Kagi. In a report dated 28 May 1999 Mr Kagi stated that at the time of admission in February 1996 the plaintiff complained of low back pain radiating into the right leg. He also stated that the plaintiff had a history of having had low back pain on and off for 10 years.
Mr Kagi also stated in his report that plain x‑rays taken at the time, ie February 1996, showed long standing degenerative changes affecting principally the L4/5 and to a lesser extent the L5/S1 intervertebral disc spaces. A diagnosis of low back pain with presumably early degenerative disc disease plus attendant sciatica was made and the plaintiff was admitted to hospital for conservative treatment. In February 1996 while the plaintiff was an inpatient a CT scan was taken of the lumbosacral spine which confirmed the degenerative changes at the L4/5 and 5/1 intervertebral disc levels and showed posterior intervertebral disc bulges at both these levels consistent with these degenerative changes.
On 26 June 1996 Dr Davis carried out an MRI scan of the plaintiff's lumbar spine. Not surprisingly, given the results of the plain x‑rays and the CT scan obtained by Mr Kagi, the MRI scan showed multi‑level disc degeneration from L2-3 to L5-S1 inclusive with moderate degeneration at L2-3, L3-4 and L5‑S1 and more marked degeneration at L4-5.
Exhibit 13 is the plaintiff's book of medical reports. It contains a report dated 12 December 1997 by Mr Sneddon. In this report Mr Sneddon stated inter alia:
"The history taken in Casualty Department by the attending resident medical officer and also by the orthopaedic registrar on duty at the time on 5th February 1996 reveals that prior to the accident on the above date, Mr Ferguson had a ten year history of experiencing back pain, right sided sciatica of an intermittent nature with associated numbness in the right leg, although none of those symptoms had apparently been present for the previous six months prior to his admission to Royal Perth Hospital.
It was also recorded that surgical spinal fusion had been suggested for his back symptoms prior to the accident of 4 February 1996."
This part of Mr Sneddon's report was put to the plaintiff in cross‑examination. The plaintiff said in part response to it that he was not told that he did need a spinal fusion but rather that it was one of the options that "he might have to look at". Mr Sneddon had stated earlier in a report dated 20 November 1997 that the plaintiff told him on 4 November 1997 that a spinal fusion operation had been suggested to him but not proceeded with.
The plaintiff gave evidence that he did not give a history to Mr Sneddon of back pain which went back 10 years. He indicated that he put his history on the basis that he hurt his back 10 years ago. Indeed it is true that the plaintiff put his history to Mr Sneddon on this basis. Mr Sneddon stated in his report dated 20 November 1997 that on 4 November 1997 the plaintiff told him that he had no symptoms in his low back region between the time of the work accident and the accident. In a report dated 27 July 1998 Mr Crockett stated that the plaintiff told him on 17 June 1998 that he had no problems with his back from about eighteen months or so after the work accident until the accident. The problem is that the plaintiff did not give an accurate and truthful account of his history to Mr Sneddon and Mr Crockett.
In closing addresses counsel for the plaintiff submitted that I should ignore this passage from Mr Sneddon's report because it was information contained by him from hospital records and not the plaintiff himself and was therefore hearsay. I should point out that Mr Sneddon's report was tendered without qualification and received into evidence as part of the plaintiff's case. However the hearsay objection is of no significance in this particular instance because I have evidence before me from the original source. Mr Sneddon's reference to the orthopaedic registrar who first saw the plaintiff at the emergency centre of Royal Perth Hospital on 5 February 1996 was no doubt a reference to Mr Kagi. I have already referred to Mr Kagi's report dated 28 May 1999. It set out part of the history he obtained from the plaintiff on 5 February 1996 as follows:
"He complained of low back pain radiating into the right leg. He had a history of having had low back pain on and off for ten years…."
Further and in addition to Mr Kagi's report I repeat my earlier reference to Mr Slinger's report dated 4 June 1996 in which he set out a history of low back pain following an accident at work ten years ago. I have no doubt that Mr Slinger obtained this history from the plaintiff when he saw the plaintiff on 3 May 1996. I also refer to a report dated 1 June 1996 by Dr Harrison, the plaintiff's general medical practitioner for many years before the accident and for sometime at least after the accident, in which he stated inter alia:
"Mr Ferguson suffered a back injury 10 years ago and did have some residual symptoms for his back prior to the accident. This recent accident has aggravated this back injury."
The plaintiff gave evidence that after a year or so of the work accident he had no problems. When further cross‑examined about having no problems he said:
"Only very slight when I really had to work as regards to lifting engine and gear boxes, and then I would simply take some Brufen. I'd go to Dr Harrison and I would get a prescription for some Brufen, two or three days, and that was what I needed."
The plaintiff gave evidence that he did not have any problem with his back when he was working for L J Roffey. He also said that he did physically heavy fencing and building work at his residential property after he and his wife had bought the courier business and that none of this caused any back problem. He recalls having a back problem on only one occasion when working in the courier business. He said he had to move and lift gear boxes which caused his back to ache but not hurt and that he took a couple of Brufen for it.
In a letter of referral dated 26 February 1996 Dr Harrison stated inter alia:
"Michael was involved in a motor vehicle accident a number of weeks ago with resultant aggravation of a back injury."
In a report dated 22 July 1998 Dr Harrison stated inter alia:
"He requested a script for Brufen on 10.9.92 and was not seen and was seen in 22.11.93 for a prescription for Brufen - I understand this was for back pain although this is not recorded in the notes. He requested a script for Brufen on 10.6.94 but was not seen."
The plaintiff gave evidence that when he and his wife took over the courier business he employed a former part owner of it as the dispatch manager. He said that his son became the leading hand and manager in charge of operations when he wasn't there. His wife ran the office and the administration. The plaintiff gave evidence that the business virtually ran itself and that he found that he only needed to visit the business office for an hour or so each day to check that things were running smoothly. As a result the plaintiff spent a lot of time at home doing renovation and extension work to the house and building a hay shed and workshop on the property.
Towards the end of 1994, about four years after the business was acquired, the plaintiff commenced to work full time in the business. It seems to me that this was forced upon him. He said that this was because two of his drivers left and started up their own courier business in competition and were trying to take his customers. He said that this forced him to spend a lot of time on the road visiting customers.
The plaintiff's son gave evidence that the courier business "was not doing terribly well". He left the business in August 1995. Newburg went into liquidation on 30 November 1995 with an estimated deficiency of $537,268. For the financial years ending 30 June 1991 to 1996 the plaintiff drew from the business $11,542, $15,600, $15,600, $15,600, $32,150 and $15,400 respectively. For the same financial years the plaintiff's wife drew from the business $15,600, $15,600, $15,600, $15,600, $32,150 and $18,400 respectively. The drawings during the financial year ending 30 June 1996 would have been made between 1 July 1995 and 15 November 1995.
The plaintiff stopped working for L J Roffey on about 5 January 1990. There is no evidence to indicate that the plaintiff continued working thereafter or received unemployment benefits until the end of the 1989/1990 financial year. The first of the plaintiff's tax returns in evidence is for the 1990/1991 financial year which shows that the plaintiff was on social security from the beginning of that financial year until 19 October 1990. Thereafter he commenced receiving an income from the courier business. It is therefore clear that there was a period of time during which the plaintiff was unemployed and not working as an electrician or at all immediately before he and his wife took over the running of the courier business. Such period of time was at least about four months and probably up to about 10 months.
I find that the plaintiff had an accident at work in 1984 which resulted in a severe injury to his low back. When he resumed work as an electrician after the work accident he had to be careful about how he worked and lifted heavy objects. I also find that the plaintiff has continued to have low back symptoms which have been intermittent and on occasions have required him to use Brufen medication. By 1990 the plaintiff was probably unaware of the anatomical details and the actual physiological extent of his multi‑level lumbar disc degeneration. However in my firm opinion he was aware that he had a bad back and that it became symptomatic from time to time when he did physically hard work. He was also aware that he might need a spinal fusion at some stage in the future and that he should look after his back.
By 1990 the plaintiff was to turn 51 years of age. He had been in the work force for about 35 years. The plaintiff did heavy industrial electrical work which was physically demanding and from time to time aggravated his back injury suffered in the work accident in 1984. He knew that he might need a spinal fusion at sometime in the future. I have no doubt that the plaintiff turned his mind to the fact that his back remained vulnerable to further aggravation so long as he continued to do heavy electrical work. From 1990 to late 1994 the plaintiff did not work on a full time basis in the courier business.
In the light of all of this and the evidence as a whole I find that sometime in or about the first half of 1990 the plaintiff made a positive decision to change his lifestyle which included a desire to change the type and amount of work he did so that when he worked most of his duties were of a more sedentary nature. It was further to this decision that he purchased the courier business with his wife.
I now turn to comment on the evidence in relation to the collapse of the courier business. On a consideration of all of the evidence I have no doubt that the plaintiff has sought to eliminate or at least substantially minimise such collapse and its true impact on him in an attempt to persuade others that all of his problems and losses relate solely to the accident.
The plaintiff in his evidence in chief confirmed the accuracy of the contents of a written proof of evidence signed by him on 9 December 1999. The proof of evidence provides inter alia:
"Sam Silipio, the business broker who had organised the purchase of the business had become the company's accountant. In 1995 unbeknown to myself the company had not paid income tax and finance and was in debt for approximately $170,000.00.
On another accountant's advice the company was put into voluntary liquidation. The house was sold for $178,000.00 which was used to pay off all the company debts. My wife and I were fortunate to be able to rent our house from the new owners, but only had a couple of thousand dollars left, which had been put aside for a holiday with my wife's parents.
The business ceased trading on 30 November 1995. My in‑laws arrived in December 1995. My wife and I had planned to travel around Western Australia in a converted van with bunks, sink and cooker with them."
At the outset of the plaintiff's evidence‑in‑chief he said that he was sure that Newburg's debt was a lot more than $170,000. He indicated that he had stated $170,000 in his proof of evidence because that was his proportion of the company's debt to the Australian Taxation Office. Exhibit 2 is a copy of the report of affairs of Newburg, signed by the plaintiff on 15 November 1995 and filed with the Australian Securities & Investments Commission on 5 December 1995 to advise of the appointment of a liquidator ("the company return"). The company return was shown to the plaintiff. It shows the Australian Taxation Office as an unsecured creditor in the sum of $350,000. The plaintiff said that this was correct and confirmed that he stated approximately $170,000 in his proof because that was his proportion of the debt.
Exhibit 3 is a Vendor's Settlement Statement dated 27 January 1994 for the sale of the plaintiff's home for $165,000. The plaintiff said that he thought the sale price was $178,000 when he signed his proof of evidence.
I do not accept the plaintiff's explanations for correcting his statements in his proof of evidence. In his proof he made no mention about his proportion. To the contrary he actually referred to "the company" being in debt. Further he indicated that the debt was for tax and finance and not just tax.
It is also relevant to note that the company return shows an estimated deficiency of $537,268. The Australian Taxation Office debt while being a substantial part of the deficiency is nevertheless only part of the deficiency. The company return shows that the plaintiff and his wife were also unsecured creditors in the sum of $123,948. I have no doubt that the plaintiff was well aware of this when he signed his proof of evidence on 9 December 1999. I will comment more about this sum later.

On any reading of that part of the plaintiff's proof of evidence which I have just set out one is left with the clear impression that the plaintiff's house was sold in 1995 to satisfy all of the company's debts with a couple of thousand dollars being left over which was put aside for a holiday. The truth of the matter is that the plaintiff's house was sold to his son in about January 1994, that thereafter the plaintiff and his wife continued to live in the house, that proceeds from the sale were used to pay off debt incurred to purchase the company and company debts, that thereafter the company continued to have financial difficulties and that it eventually went into liquidation at a meeting of creditors on 30 November 1995 with an estimated deficiency of $537,268 which was well in excess of the sale price of the house.
The plaintiff also stated that in 1995 he did not know that the company had not paid any income tax. In my opinion this statement is unbelievable. The plaintiff and his wife were the only two shareholders of the company. The plaintiff was a director of the company. He said that he was the manager when his son was not there. He went into the office every morning. His wife was in charge of administration. He and his wife lived together. I have no doubt that they discussed the state of affairs of the business from time to time. The company was the owner of what could be described as a family business. The plaintiff and his wife made drawings from the business. The plaintiff's family home was sold to his son to pay off some of the company debts. I have no doubt that the overall debt situation of the company including taxation would have been itemised and considered at that time.
I now return to comment on the unsecured debt of the plaintiff and his wife to the company in the sum of $123,948. The plaintiff gave evidence that some of the proceeds of the sale of the house was used to pay off money advanced by Perpetual Finance Corporation to purchase the company which was secured by a mortgage over the house and an outstanding balance of the purchase price to the previous owners of the business who had provided vendor finance. The plaintiff gave evidence that the courier business cost $200,000. As I understand the plaintiff's evidence Perpetual Finance Corporation advanced $110,000 secured against the house and the balance of $90,000 was vendor finance. None of these repayments to Perpetual Finance Corporation and the vendors would be included in the company's debt of $123,948 to the plaintiff and his wife simply because it was not company debt but their personal debt incurred to purchase the company.
For the plaintiff and his wife to be unsecured creditors of the company in the sum of $123,948 after having already sold their house nearly two years before the company went into liquidation to satisfy debt the plaintiff must have appreciated that the company was in a very poor financial position well before it actually went into liquidation.
There are a number of other instances where the plaintiff gave a false account of his history to medical practitioners.
The plaintiff attended on Mr Slinger on 3 May 1996 for the purpose of Mr Slinger providing a medico‑legal report. In the report dated 4 June 1996 to which I have earlier referred Mr Slinger outlined the plaintiff's employment history given to him by the plaintiff as follows:
"At the time of the accident he was working his own business in which he was self employed in the transport business or courier taking goods to the South West, as far as Esperance and on occasions was required to drive vehicles. Since the accident mentioned above he has had to sell the business."
The plaintiff attended on Mr Slinger again on 4 January 1999 for a review. In a report dated 31 March 1999 Mr Slinger set out a slightly more comprehensive employment history for the plaintiff than the one in his earlier report. It provided once again that at the time of the accident the plaintiff was working in his own business as a courier. The plaintiff either perpetuated the untruth of him working in his own business as a courier at the time of the accident or failed to correct what he had said at his earlier attendance on Mr Slinger.
The plaintiff attended on Mr Sneddon on 4 November 1997. In the report dated 20 November 1997 Mr Sneddon set out part of the plaintiff's employment history as follows:
"When the accident occurred in February 1996 he was working on a full time basis as a Courier/Driver, and since the accident has no longer been able to perform that work, …"
The plaintiff gave both Mr Slinger and Mr Sneddon a false account of his employment history. He was not working as a courier at the time of the accident. He was unemployed at the time of the accident. He did not sell the business after the accident or at all. Newburg, the owner of the business, went into liquidation before the accident.
Perhaps the most serious example of the plaintiff giving a false account of his history to a medical practitioner is the one he gave to Mr Burvill, a consultant psychiatrist. The plaintiff attended on Mr Burvill for the first time on 10 September 1998. In a report dated 2 October 1998 Mr Burvill stated inter alia:
"Mr Ferguson said that the accident had had a very adverse effect upon his life. He described his life prior to the accident as being very good, being fully employed, being in a nice home with 5 acres set in the hills, being in a good marriage, and him enjoying skiing and horse riding with his son. Since the accident he has been irritable and verbally explosive, creating a very bad atmosphere at home.
….
He said that he now has no income, and they are financially very tight. Mr Ferguson felt very bitter about the accident and its aftermath, complaining that some stupid driver had ruined his whole life, nobody cared a damn, the hospital kicked him out, and that he had been told that his physical disabilities would get worse as he grew older and that he would not work again.
….
Mr Ferguson has been depressed since the accident. I was unable to accurately determine the date of onset of the depression, as it appeared to evolve gradually in reaction to his various problems following the accident. His depression is constant without diurnal variation."
The following exchange took place between counsel and the plaintiff during cross‑examination:
"You see, the impression you have given Mr Burvill, or at least the history he has got and the impression that would give any reader is that prior to the accident you were in full employment, you had a nice house, and that generally speaking all this has been taken away from you because of the motor vehicle accident?---Yes
It's not true?---It is true."
The plaintiff also told Mr Burvill that he had a past back injury but no symptoms from it prior to the accident.
The first time that Mr Burvill came to know anything about the courier business going into liquidation was when he was in the witness box at the hearing. Counsel for the plaintiff asked Mr Burvill if the plaintiff's failure to mention it was an indication of what the plaintiff's mind was focused on. Mr Burvill said that the plaintiff was focused on the accident and everything that occurred after it.
The plaintiff's failure to tell Mr Burvill about the liquidation of the courier business before the accident is not properly explained by reference to what the plaintiff's mind was focused on when he saw Mr Burvill. Being focused whether it be on the accident or whatever does not provide any explanation or excuse for being dishonest. The plaintiff was no doubt aware that Mr Burvill was a consultant psychiatrist and that he was sent by his solicitors to see Mr Burvill for the purpose of Mr Burvill preparing a medico‑legal report on his mental state to be used or at least potentially used in support of his claim for damages.
Not only did the plaintiff not tell Mr Burvill any details about the collapse of the courier business just several months or so before the accident but he positively misled Mr Burvill into thinking that he was fully employed at the time of the accident and had to sell and vacate his house after the accident because his accident related injuries prevented him from working and earning an income.
The history given to Mr Burvill by the plaintiff that he had no back symptoms prior to the accident was also untrue. I again refer to passages from the reports of Mr Kagi, Mr Slinger and Dr Harrison to which I have earlier referred and in particular Dr Harrison's report dated 22 July 1998 in which he set out occasions when he gave or made scripts available to the plaintiff for Brufen. The plaintiff gave evidence that he used Brufen to relieve back pain.
Mr Burvill gave evidence that such a business failure for a person in the plaintiff's circumstances could be the sort of thing to cause depression, feelings of inadequacy, misery and loss of confidence. He agreed with the proposition that it would have a devastating effect on most people.
Mr Burvill's opinion that the plaintiff had a relatively severe major depressive illness which was a direct result of the accident cannot be accepted insofar as it sets out the cause. I hasten to add that this is not because of any inability on the part of Mr Burvill to accurately diagnose but rather because his diagnosis was based on a false history.
There are a number of other inconsistencies between the plaintiff's evidence and his history given to medical practitioners which are worthy of note but of much less weight than those already mentioned. The plaintiff gave evidence that he did not suffer from hypertension, did not take tablets for it and did not even know what hypertension was. Mr Crockett in a report dated 27 July 1998 and when he gave evidence stated that the plaintiff told him he had hypertension and was taking tablets for it. The plaintiff also gave evidence that he has not had asthma since he was a child. Mr Crockett stated in his report dated 22 July 1998 that the plaintiff told him that he had suffered from mild asthma over the last couple of years or so for which he had to use Becotide occasionally. Mr Crockett's report related to the plaintiff's attendance on him on 17 June 1998.
In relation to how the plaintiff presented on examination rather than what history he related to various medical practitioners I note in a report dated 26 May 1999 that Mr Sneddon stated that when he reviewed the plaintiff on 24 May 1999 the plaintiff was using a walking stick which was not only inappropriate but also downright dangerous. There is no evidence that it had been recommended by any medical practitioner. Mr Sneddon also stated in the same report that his attempted physical examination of the plaintiff was only partly successful due to the various bizarre postures that the plaintiff adopted.
I now turn to consider and comment on some of the evidence of the plaintiff and the plaintiff's son.
The plaintiff's proof of evidence to which I earlier referred also provides inter alia:
"Mark and I started having discussions about going into business together in around August 1995. He had told me that he would be leaving the courier business and wanted to give me plenty of time to reorganise it when he left. We had several discussions about what we would do with the courier business when we went into business together.
Initially I intended to do electrical work mainly in the heavy industrial side similar to the work I did for Roffey. I had spent 3 months at BHP and there is always plenty of that type of work available. This is particularly so when cranes are involved.
I was not qualified to do the Programme Logic Control work that Mark does. However I only needed to attend a course for about two weeks and then field supervision for another two weeks, before I would have been competent to perform that work.
Once the business got established we would have taken on other electricians and then I would have gone into a supervisory role, doing site work and the estimates and costing.
I had looked at my financial needs and initially could have met my expenses on a gross salary of $350.00 to $400.00 per week. Once the business started going well I would have drawn $600.00 per week as gross salary.
The business with Mark was to be a family affair. I had no retirement plans I hadn't given retirement any thought. As my father worked until 72 years of age as the manager of a large sheet metal factory, there was no reason for me to retire as I didn't have any superannuation or even a home to retire to.
Although the diving part of the business was not my primary interest as Mark's business grew I was prepared to help out in this area. To do this I enrolled in Fremantle Maritime College and obtain a coxswain's certificate. I then did a MEDZ course in maritime engines and a Master Class V course.
Although when I did these courses I was still experiencing a lot of pain, I hoped I would eventually get better and be able to use these qualifications in helping build Mark's business. I also needed to do something constructive so that I did not feel that I was finished and of no use to me or anyone else.
I also went to Bentley College one day and two nights a week for six weeks to do a refrigeration and airconditioning course. At that stage I was required to climb on top of coolroom refrigerators and I wasn't capable of doing this. This course was for six months and would have given me a qualification to repair and re-gas the systems, which required a 'fridge ticket'. This would have been most useful for Mark and I in his business.
….
I had intended to work with Mark and help him build up his business. It is a great disappointment that my injuries prevent me from doing so. …"
In cross‑examination the plaintiff gave evidence that he expected to be earning $350 - $400 per week probably within about three or four months from when he closed down the courier business. I can't conclude exactly when the plaintiff closed down the business but it was probably on or before 15 November 1995 when he signed a statement of affairs in relation to Newburg for use at a meeting of creditors on 30 November 1995. He added that he expected to start work with his son in late March/April 1996 and be earning $600 per week two or three months thereafter.
The plaintiff's son in his evidence-in-chief confirmed the accuracy of a written proof of evidence signed by him on 9 December 1999. The proof of evidence provides inter alia:
"whilst working at the courier business I had several discussions with dad about getting my electrical contractor's certificate. The courier business was not doing terribly well and in discussions I had with my father it was decided that if I did commence an electrical contracting business he would help me out. He would do amongst other things courses in refrigeration so that when we went into business we could also do electrical work in that area.
Besides the electrical contracting business I was interested in work that involved diving. Early in 1994 I and three others had bought a dive boat for about $80,000.00. One of the others owned Dolphin Scuba in Welshpool and he was the major partner. I worked for him as a dive master for a while. In 1996 I did some work as an instructor then I went on a course to get a contractor's certificate. I eventually got my Master V Skippers Ticket.
I left the courier business in August 1995 and travelled to Queensland and the Northern Territory. When I returned to Perth in December 1995, the courier business had closed and my father was keen for he and I to get the electrical business going as soon as possible.
I was committed to the diving business in Perth until the end of the 1995-1996 summer. If my father had not been injured I probably would have started getting the necessary qualifications in April 1996 and have commenced business in July 1996.
After my father's accident I had less incentive to get it started. I didn't have quite enough money. I also didn't have my father encouraging me to get going. I was under no personal pressure to start. It was not until July 1997 I got my electrical contractors certificate and started the business.
If my father had not been injured he would have been finding clients and doing work as it came up. He was particularly cluey about aviation electrical. My area of expertise is more into programmable logic control which was mainly expertise in the industrial area.
The electrical business has done fairly well. I started with Allect as a sub‑contractor after I got my contractors certificate and I was doing my own jobs as well. Then through Allect I worked for one of their client's Champion Compressors, a manufacturer of compressed air equipment in 1997. Champion Compressors eventually approached me directly and asked if I would work for them. I have been working for them doing approximately about 20 hours a week since that time. If my father had been available to help me at that stage we would have been looking for new clients but I was placed in a situation where I really could not expand as I did not have the time to devote to it as I was also involved fairly heavily in the scuba diving business.
My father was aware of that and he was interested in helping out in the diving business. Even after his accident he obtained a coxswain's certificate. If my father had been available as a crew member on dives we would have used him and probably would have paid him about $100.00 a day just to crew with us, if he had not been fully tied up with the electrical side of the business.
….
The electrical contracting work and the charter boat work which is often on weekends are very busy. If my father was available now he would be looking after the new electrical business. Champion has offered me more work but I cannot do it. I am frequently approached about doing other work in the industrial area but I have had to knock it back because I just do not have the time. It has been most unfortunate that my father has not been available to help me with the businesses as I really haven't been able to expand as I would have liked to. I am also reluctant to employ someone else because I am not confident that I could trust a stranger with any great responsibility or expose myself to losing customers if that stranger decided that he wanted to go out on his own.
If my father had worked for me in the electrical business at first he would have been getting in work from new customers while I did the work. When the customer base was established he would have also been doing the 'hands on' work.
In the early days he would have drawn whatever he needed to met (sic) his living expenses. After the business got going he would have been paid the sub contractor's rate of $25.00 per hour. He should have made at least $600.00 per week, often more.
The diving/charter boat business makes little money but it is very important in contributing to the profitability of the diving store in Fremantle. Most of the equipment that people use on dives is either bought or rented from the store, including the refilling of diving tanks. Whilst the charter boat business might appear to be an unprofitable venture, it indirectly contributes greatly to my overall profitability."
I gained the distinct impression from observing the plaintiff's son in the witness box that he was uncomfortable about being a witness and that he did not positively embrace the notion that before the accident he and the plaintiff had reached some definite arrangement on working together as electrical contractors and but for the accident would have done so from the date of the accident.
There is an internal inconsistency within the evidence of each of the plaintiff and his son on whether the two of them would be joint proprietors of a business or whether the plaintiff's son would own the business and the plaintiff simply help him out.
The plaintiff stated "what we would do with the courier business when we went into business together". He later stated "Once the business got established we would have taken on other electricians." He also stated "This would have been most useful to Mark and I in his business". At the end of his proof he stated "I had intended to work with Mark and help him build up his business". The plaintiff's son stated "If I did commence an electrical contracting business he would help me out". He also stated "When we went into business." He also stated "If my father had worked for me". These inconsistencies suggest to me that the discussions between the plaintiff and his son were fairly loose.

The plaintiff has also sought $1,614.03 for future attendances on a general practitioner at the rate of four attendances per year, $3043.60 for future attendances on a specialist at the rate of two attendances per year and $3,000 for future pharmaceutical expenses.
I find on the evidence that apart from the venous thrombosis, the plaintiff has not received any treatment from any specialist since Mr Kagi treated him in Royal Perth Hospital. The plaintiff attended on all of Mr Slinger, Mr Sneddon and Mr Crockett for the purpose of medico-legal reports being prepared and not for treatment. Mr Slinger mentioned in his report dated 31 March 1999 that the plaintiff had not received any treatment other than using medication since he had last seen him in May 1996.
The plaintiff uses Brufen and Prothiadin to relieve low back pain. Given the extent of his spinal degeneration I consider it likely that he will continue to need them. There is a real possibility that but for the accident he would have needed to use them anyway although perhaps not so often and in lower dosages.
I think an allowance of $4000 should be made for all of these additional future medical expenses.
Doing the best I can I award the plaintiff damages for future medical expenses in the total sum of $6,000.

Special damages

There is no evidence before me of any outstanding accounts and so I make no award for special damages.

General damages

The plaintiff is entitled to general damages for the accident itself and for the consequent pain, inconvenience and other matters generally referred to as the loss of amenities.
The award of damages for loss of enjoyment of life and amenities generally requires a consideration of s3C of Motor Vehicle (Third Party Insurance) Act 1943 ("the Act"). This section imposes limitations upon an award of non-pecuniary loss and applies to the present case. Section 3C(3) provides that the maximum amount of damages that may be awarded for non-pecuniary loss is, at the present time, $219,000 and that that amount may be awarded "only in a most extreme" case.
I repeat all of my comments and findings set out herein for the purpose of assessing general damages.
Notwithstanding my assessment of the plaintiff as a witness and my view that he has been prone to exaggerate his symptoms I accept that the accident has had a serious impact on his life and level of enjoyment of life. Although the true extent of the plaintiff's injuries and symptoms and what the plaintiff would have done but for the accident insofar as work is concerned have been key issues in this case and particularly the latter there is no question in my mind that the plaintiff was injured and rendered constantly symptomatic by the accident.
I accept that the plaintiff derived a lot of enjoyment from diving and boating before the accident and that he can no longer participate in these recreational activities. I also accept that the plaintiff enjoyed horse riding although he did not do very much of it in the year or so before the accident. He can no longer do it.
The plaintiff's accident related injuries have contributed to him being irritable and in turn put a strain on his marriage.
The plaintiff had to spend time in hospital after the accident and was later readmitted to undergo treatment for the venous thrombosis in his right leg. I have no doubt that the plaintiff suffered pain in his low back and right leg at a relatively high level for several months after the accident. He also suffered neck pain but to a lesser extent.
I accept that the plaintiff was required to use a wheelchair for sometime after he was discharged from Royal Perth Hospital but I am not satisfied that he needed it for two months. I accept that the plaintiff needed to use crutches for some time before he progressed to walking unaided. I do not accept that the plaintiff has needed a walking stick in more recent times and while I do not discount him having some pain in his right leg I think that his limp is grossly exaggerated.
I accept that the plaintiff has had low back symptoms since the accident and will continue to do so and require medication for pain relief. As previously mentioned I think that his neck symptoms resolved sometime between January and May 1999. I accept Mr Crockett's evidence that in general terms the plaintiff's back injury can be described as moderate and his neck injury as mild.
The plaintiff and his son have worked together at various times over many years. I repeat what I said under the heading of Future medical expenses that while I have found that the plaintiff only intended to help out his son if his son started an electrical business now that his son has started the business I accept that the plaintiff has been deprived of enjoyment by not being able to help him.
I accept that the plaintiff suffered from dizziness and vertigo following the accident. While I accept that the plaintiff continues to suffer from episodes of dizziness I do not accept that they are frequent and have a great impact on him. I do accept that the plaintiff has had a problem sleeping as a result of the accident. I think the extent of the problem is probably not as great now as it used to be. I think the plaintiff's evidence of not being able to clean himself when he goes to the toilet is grossly exaggerated.
When the plaintiff saw Mr Crockett on 17 June 1998 he complained of frontal headaches which were not connected with any neckache. He said he had had a dozen very severe headaches since the accident which lasted about four hours and forced him to lie down and take Panadol. On 4 January 1999 the plaintiff told Mr Slinger that on average he had two to three headaches per week which were frontal in nature and lasted up to six hours.
In cross-examination the plaintiff gave evidence that he first started suffering from headaches about six or eight months after he left hospital. He said that he mentioned the headaches to Dr Harrison but there is no reference to headaches in any report by Dr Harrison. Indeed the first mention of headaches in the medical reports in evidence is the report of Mr Crockett to which I have just referred.
I am not satisfied that the plaintiff's headaches, if he does suffer from any, are accident related.
The plaintiff is obviously skilful and well qualified to do construction and maintenance work about the house. While these sorts of things may sometimes be a chore there are occasions when doing them gives rise to some degree of satisfaction and enjoyment. The plaintiff lives with his wife in the house on the former matrimonial property which is now owned by his son. Even though the property is owned by the plaintiff's son I think it likely that the plaintiff would have done and enjoyed doing various jobs about the property if he was able to do so.
I place the plaintiff's case at 14 per cent of a most extreme case. This percentage of the maximum amount that may be awarded of $219,000 equates to $30,660. The provisions of s3C(5) requires an amount of this sum to be reduced by $10,500. I therefore award the plaintiff general damages in the sum of $20,160.
Summary of heads of damage
Past economic loss:  $20,000
Future economic loss:  $50,000
Future medical expenses  $ 6,000
Special damages  $     00
General damages  $20,160
Total:  $96,160

Conclusion

For all these reasons I award the plaintiff damages in the total sum of $96,160 and give liberty generally to the parties to apply.