Fuller v McLeod - [2016] NSWDC 377

District Court

New South Wales

Medium Neutral Citation: Fuller v McLeod [2016] NSWDC 377
Hearing dates: 21 – 24 November 2016
Date of orders: 30 November 2016
Decision date: 30 November 2016
Jurisdiction: Civil
Before: Neilson DCJ
Decision:
Verdict and judgment for the plaintiff against the defendant for $126,186.19
Order the defendant to pay the plaintiff’s costs on the ordinary basis until 22 April 2016 and on an indemnity basis from 23 April 2016
Catchwords:
MOTOR ACCIDENTS COMPENSATION – Collision between a prime mover being driven by P and a trailer being towed by a twin cab utility being driven by D – Property damage only – A short time later a road-side confrontation between P and D – What occurred hotly disputed – Credibility of both parties in question – Accepted that confrontation was acrimonious and that D drove off but in process his vehicle or its trailer collided with P and knocked him down
Defences of contributory negligence and under Civil Liability Act 2002 s52 considered
Legislation Cited: Civil Liability Act 2002
Workers Compensation Act 1987
Cases Cited: Fox v Wood [1981] HCA 41; (1981) 148 CLR 438
Sahade v Bischoff [2015] NSWCA 418
Category: Principal judgment
Parties: Craig Anthony Fuller (Plaintiff)
Peter William McLeod (Defendant)
Representation:
Counsel:
Mr J Ringrose (Plaintiff)
Mr D Hanna (Defendant)
Solicitors:
Ticli Blaxland Lawyers (Plaintiff)
Moray & Agnew Lawyers (Defendant)

File Number(s): 2014/96759
Publication restriction: No

Judgment

HIS HONOUR: The plaintiff, Mr Craig Anthony Fuller, of Bowraville, brings an action for damages for personal injury which he says he sustained in a motor vehicle accident on 27 April 2011. The plaintiff's claim is brought in the tort of negligence. It must be borne in mind that that is the tort relied upon rather than the tort of trespass to the person, many histories of such a tort having been given by the plaintiff to medical practitioners over the ensuing five years.
The first paragraph of the statement of claim is this:

"On 27 April 2011 at approximately 3.35pm the Plaintiff had parked his 604 Kenworth B‑Double registration number 141 KKV on the left‑hand side of Pacific Highway on northbound lane near New Italy[,] south of Woodburn, after an incident with a Mitsubishi twin cab Utility Triton registration number 161 KES with a trailer driven by the Defendant when the said vehicle driven [by] the defendant had parked behind the Plaintiff's B‑Double. The Defendant commenced driving the said vehicle in a northerly direction hitting the Plaintiff and running over the Plaintiff with the back wheels of the trailer."

Because it assists in the determination of the question of liability, it is important to bear in mind the plaintiff's background.

The plaintiff’s background

The plaintiff was born on 4 September 1971. At the time of the accident alleged, 27 April 2011, he was 39 years old. He is now 45 years old. The plaintiff was a poor scholar. He left school halfway through year 9 as he was unable to read or write. In essence, the plaintiff is illiterate. He did tell me that he had managed to be able to read the "Land" newspaper but is unable to read the Daily Telegraph. To be able to read the Daily Telegraph, one has to have the ability of a 12‑year‑old.
Having left school, the plaintiff's first job was as a packer at the Midco Meatworks at Macksville where he worked for five months. For the following three years, he was a shelf packer and storeman at the Cooperative Supermarket in Macksville. He then spent one year attending the TAFE College in Coffs Harbour doing a pre‑apprenticeship training to become a mechanic and/or boilermaker. The plaintiff told me he completed the theory to become a motor mechanic but did not obtain any indenture to be an apprentice motor mechanic and therefore has no formal qualification as a motor mechanic. Since that time, he has worked, mainly as a truck driver.
Returning to the question of the plaintiff's education, it appears to me that he is both poorly educated and unsophisticated. From what will become clear from what I shall need to say later in these reasons, he is an unreliable witness but that unreliability is largely because of a poor memory, poor memory training and a very poor sense of chronology.
The plaintiff told me that before 1996 his work included six months in a tannery, which work he described as "filthy, disgusting". He also worked for some time making pallets. In 1996 he was working in a sawmill, as I understand it.
On 10 May 1996, a date I take from the history recorded by Dr James Bodel, the plaintiff sustained a serious injury to his right forearm. The history given by the plaintiff to Dr Chris Oates, who has been qualified by the plaintiff's solicitors was this:

"In May 1996 he caught his right forearm in a conveyor belt at a sawmill, sustaining a fracture of the distal radius and ulna and a split of skin of the fingertips. He had reconstructive surgery by Dr Heffner, orthopaedic, Coffs Harbour. He subsequently had to spend three months in the Royal North Shore Hospital as the left forearm became infected because of embedded timber sap and he almost had to have the arm amputated."

According to the history given by the plaintiff to Dr Hopcroft, another medical practitioner qualified by the plaintiff's solicitor, the details of the plaintiff's medical treatment were these:

"The patient had suffered a serious injury to his left forearm as a late teenager [he was 24 years old] and had undergo open reduction[,] internal fixation of both the lower‑third radius and ulna by Dr Tony Heffner, orthopaedic specialist, in Coffs Harbour at the time. He had damaged tendons and nerves in his forearm, however, he was referred to Dr Ian Farey senior orthopaedic specialist at the Royal North Shore Hospital, and he had four further operations on the tendons and nerves of his forearm (through the old scars) and ultimately regained full use of his left forearm."

The plaintiff told me that eventually his case was "settled" for $70,000. There is also reference in the evidence to the plaintiff’s being awarded a lump sum under the Workers Compensation Act 1987 for 27% loss of efficient use of his left arm below the elbow. It seems likely to me that the lump sum of $70,000 represented a worker's compensation settlement, perhaps a commutation of his rights under that legislation.

The plaintiff then told me that he worked as a furniture removalist for two years and then started as a driver for Lindsay Brothers for seven or eight months . He then worked for "Golden Sand and Soil" at Coffs Harbour repainting the machinery and other maintenance work on that machinery. He worked for about two and a half years based in Sydney over the time that the Olympics were on, clearly, including the year 2000. That work was driving trucks bearing containers. In 2002, he returned to the north coast of New South Wales and again commenced truck driving. He worked for ID Transport on the haul between Sydney and Brisbane. He then went to Melbourne and drove trucks in Melbourne and throughout Victoria for some period of time, which appears to have been relatively short.
Some time prior to 27 April 2011 the plaintiff and his father bought from the plaintiff's aunt a derelict banana farm near Bowraville, of 180 acres. It is a matter of speculation as to when he purchased the farm. Doing the best I can, it appears to have been in approximately 2009. The plaintiff's uncle, who had worked the farm, had died and the farm was derelict for approximately seven years. The plaintiff said that his uncle had died 14 years ago and it was some time after he died that the plaintiff and his father acquired the farm. A large amount of the farmland needed to be cleared and, for that purpose, a bulldozer was used. There was also a need to re‑fence the exterior of the 180 acres and to replace fencing within the farm. There was an old farmhouse on the property but everything points to its having been derelict at the time the plaintiff bought the farm and, when the plaintiff elected to live on the property, he did so by dwelling in a 30‑foot caravan rather than the old farmhouse. The plaintiff, in his evidence before me last week, told me that the old house fell down either the week or the month before he gave evidence. However, it is clear from his evidence and from medical histories that he was amassing the wherewithal on‑site to build to build a new home.
For some time prior to the incident now in question, the plaintiff was driving trucks for Ruttley Freightlines. This was "linehaul" work on the run between Sydney and Brisbane. He would start a run in Sydney from either the Moorebank depot or the Eastern Creek depot and drive the truck to Brisbane where it was unloaded and he would then return from Brisbane with a load to Sydney. This was Monday to Friday work. The plaintiff told me that on weekends he would leave, at least, the trailer of the prime mover at a service station in Macksville and return on Monday morning to collect the trailers to drive on to either Brisbane or Sydney depending on where he had picked up on the preceeding Friday. The plaintiff did not need to load the truck; that was done by others. However, the plaintiff did need to tie the load down. The trailers which he was using had curtained sides. The plaintiff told me that he carried no perishables: the loads were parcel freight. It is likely that he did not carry perishables because he could not interrupt a journey to take the weekend off if he did. However, one of the many credit issues arising is a history given which suggests the plaintiff was carrying perishables on 27 April 2011. The plaintiff told me that he had worked for about six months for Ruttley Freightlines prior to 27 April 2011.
On the weekends, he worked fulltime on the farm. The farm was being developed as a piggery. The plaintiff kept sows and boars and bred piglets which were fed till the age of three or four months and then sold for slaughter to supply the pork meat industry. On the farm, prior to 27 April 2011, the plaintiff was engaged in fencing including digging postholes for the fences. When the postholes could not be dug with machinery, they were dug manually using a crowbar, because of a mixture of clay and shale on the property. The pigs needed to be fed and that process will be described a little later. Initially, the pigs were fed by both the plaintiff and his father. When the plaintiff was off work after 27 April 2011, the pigs were fed solely by the plaintiff's father. However, the plaintiff's father is currently in ill health. The plaintiff told me his father was now aged 70, that he has Parkinson's disease and dementia. He also told me that he had three heart attacks two and a half years ago, which would indicate early 2014 but that date in itself is problematical. However, one can see that at the time of the events alleged in the statement of claim, the plaintiff was driving B‑doubles on the linehaul between Sydney and Brisbane five days per week and doing fairly arduous work on his farm on Saturdays and Sundays.
I have reviewed the plaintiff's work history, so far as I know it, up until the time of the accident because it does demonstrate a lack, for example, of any work which involved bookkeeping or any form of clerical work. His work was obviously, at times, arduous, work such as working in sawmills, on banana farms, in a tannery and working on his own farm as well as a full gamut of various types of truck driving.

The defendant’s background

Unfortunately, the evidence does not give me any great detail about the defendant's background. The defendant, Mr Peter William McLeod, of Toormina, was born on 30 March 1959. At the time of the accident alleged in the statement of claim, he was 52 years old. He told me that he had held a driver's licence for 40 years but that is obviously an exaggeration. One could accept that he had had a driver's licence since the age of 17 which would have been for a period well over 30 years. He had been an employee of the NRMA as a driver for, he told me, "decades". He had also had qualifications as a tow‑truck driver. At the time that he gave evidence, he was self‑employed doing shop fit‑outs. The defendant appeared to be better educated and a little more sophisticated than the plaintiff.

Matters not in dispute

There is no dispute that on 27 April 2011 the plaintiff was driving a prime mover, registered number 141 KKV (Queensland), towing two trailers. The first trailer bore registration number 872 QUT (Queensland) and the second trailer bore registration number NT 36 DE (Federal). Those details were taken by Senior Constable Anthony Graham Brown in his notebook on that day. At the relevant time, the plaintiff was driving on the Pacific Highway north of Maclean, north of the turnoff to Iluka and in the vicinity of New Italy, south of Woodburn.
There is also no dispute that the defendant was driving a Mitsubishi Triton twin cab utility, registered number 161 KES (Queensland). He was towing a trailer. Those details were recorded on 27 April 2011, by Senior Constable Jason Edward Hosken in his notebook. At the time, the defendant was living in Queensland but was moving back from Queensland to Toormina. He was towing a trailer but there is an issue concerning the registration number of the trailer. At the relevant time, the trailer was empty. The defendant had carried, on the trailer, from Queensland to Toormina, furniture and was returning to Queensland to collect another load of furniture to take from his then home in Queensland to his new home in Toormina. Senior Constable Hosken obtained, in his notebook, both the plaintiff's new residential address at Toormina and the residential address that he had in Queensland as shown on his Queensland driver's licence, the number of which the Senior Constable also recorded.
There is no issue that the defendant, like the plaintiff, was driving north on the same section of the Pacific Highway and that initially he was behind the defendant. Nearly everything that happened thereafter, on 27 April 2011, is in dispute between the plaintiff and the defendant. Each of the parties concedes that the two versions given, the one by the plaintiff and the one given by the defendant, are irreconcilable and that someone is not telling me the truth. The real issue for my determination is to try to ascertain whom I should believe.

The hearing

The hearing of this matter commenced last week at Coffs Harbour on the first day of the sittings, Monday 21 November 2016. The evidence was concluded on the afternoon of Wednesday 23 November when, at 2.30pm, I set the matter down for addresses on the following morning. I heard those addresses on the morning of Thursday 24 November 2016 but owing to the press of business at Coffs Harbour, I elected to continue the hearing of another matter which had started on the afternoon of 23 November and I elected to give judgment today when there was a vacancy in my diary. I have had an opportunity of rereading my notes and the documentary evidence in considering the matter further.

The plaintiff’s case

In his evidence, the plaintiff said that as he was driving north on the Pacific Highway near New Italy. There was no‑one in front of him. He said that behind him was a silver four‑wheel drive towing a trailer. There were overtaking lanes from time to time. The plaintiff was in the left‑hand lane where there was an overtaking lane. The left‑hand lane in which he was travelling was coming to an end and it was necessary for him to merge right. The plaintiff told me that he engaged his blinker to indicate that he was moving from the left‑hand lane into the right‑hand lane. The plaintiff's case is that at that time the defendant was behind his B‑double combination. He said that only after he was moving into the right‑hand lane did the defendant seek to overtake him. He said that he was 3 feet onto the right‑hand lane when he saw the defendant's vehicle and trailer seeking to overtake him. Dividing the northbound and the southbound lanes of the highway, at this point, was a wire fence which the plaintiff described as a "cheese cutter" but I was informed by Senior Constable Hosken that the technical name for this well‑known and commonly encountered lane‑dividing system is a brython wire fence.
The plaintiff told me that the trailer drawn by the defendant's vehicle collided with the fuel tank on the driver's side of his vehicle, the fuel tank being underneath the cab between the front wheel or "steer wheel" of the prime mover and in front of the rear wheels or "drive wheels" of the prime mover. He also told me that the trailer collided with the steer wheel; that is, the front wheel, of the prime mover and that it also collided with the side of his vehicle's bumper bar.
The plaintiff told me that he was unable to move to the left because that would have put him into a drain and caused his vehicle to overturn. He told me that he did not brake because the defendant's vehicle and trailer were moving more quickly than he did and the trailer quickly passed him by before he had any time to brake. The plaintiff's case is that he then followed the defendant for about a kilometre where the defendant pulled over. The plaintiff then pulled over in front of him parking his B‑double combination about 100 metres beyond where the defendant had parked his vehicle and trailer.
Each of the plaintiff and the defendant agree that the distance between the front of the defendant's vehicle and the rear of the plaintiff's vehicle was about 100 metres. The only issue is whether the defendant pulled over 500 metres after the collision, which is the defendant's case, or 1 kilometre beyond it, which is the plaintiff's case. The plaintiff said that the defendant got out of his vehicle and started to walk towards the plaintiff's truck. The plaintiff told me that he then alighted from his vehicle and walked towards the defendant. The plaintiff told me that the defendant then turned around and walked back to his car. The plaintiff said that he then photographed the defendant's vehicle, in particular, its registration plate and also took a photograph of the defendant. The plaintiff's evidence‑in‑chief was completely silent as to why the defendant turned around and walked back to his vehicle. There was obviously some interaction which caused the defendant to return to his vehicle, if the defendant had been walking towards the plaintiff, as the plaintiff says.
Exhibit A is print of a photograph which the plaintiff said he took. It records the registration number of the defendant's vehicle. Exhibit B is a print of a photograph which the plaintiff took of the defendant. It shows the defendant's Mitsubishi Triton twin cab utility truck, silver, parked on the side of the highway. Doing the best I can from the photograph, the caged trailer itself was about the same width as the Mitsubishi Triton but the wheels, covered by mudguards, on each side of the trailer extended its width beyond that of the car. There is no dispute that exhibit B shows the defendant. It shows him in essence standing on the offside of his vehicle at its front probably at about the place where the front tyre of the Triton would be found if the photograph was taken showing, for example, the defendant's legs and feet.
Exhibit B also shows that there is a very wide shoulder which is in part bituminised and then there is a further part which is covered in grass but the defendant's vehicle is parked mainly on the grass rather than on the bituminised part of the shoulder. In other words, the grass shoulder or verge itself would be almost wide enough to take an ordinary vehicle. It is clear to me that the width of the bituminised shoulder and the green shoulder or verge beyond it would likely support any type of road vehicle. One can see, in the same photograph, the brython wire fence dividing the northbound and southbound lanes of the highway.

It is clear that the photographs were taken using a mobile phone, not with a camera. For example, in his evidence the defendant said that the plaintiff was holding, in one of his hands, a phone. In his other hand, at the relevant time, the defendant says, the plaintiff was wielding a guidepost taken from the side of the road. There is also reference in statements to the plaintiff’s taking the photographs that he took with his mobile phone. I need to address this issue later when I discuss the defendant's evidence. It appears fairly clear to me that, to take the photographs which are exhibit A and exhibit B, the plaintiff himself would have had to have been close to both the defendant's vehicle and to the defendant himself.
The plaintiff said that after he took the photographs he asked the defendant to provide him with his licence details. The plaintiff said that the defendant then "hopped" into his four‑wheel drive. The plaintiff said that he was standing in front of the offside or driver's side headlight about 1 metre in front of it. He then said the defendant drove his vehicle forward. Initially the defendant drove to the defendant's left and then he drove to the right and onto the carriageway of the highway. The plaintiff said that as the defendant did that the defendant's front nearside mirror struck him and that he was then struck by the side of the Triton in the vicinity of the driver's door and those blows caused him to twist and fall such that he was lying prone on the bitumen with his head facing north and he felt tyres go over his back and his left arm. He told me that the defendant then drove on and did not stop.
The plaintiff then said that he rang the emergency number 000. He said that he told the operator that he had been "just run over". He said that he was told that a police vehicle was to be dispatched from Ballina and he then waited. The plaintiff mentioned nothing to me about asking for an ambulance. One would have thought that if he had been "just run over" the operator would be solicitous to ascertain whether an ambulance was required because one would think there was a greater need for an ambulance than a police car.
The plaintiff's case is that he waited for about 22 minutes and then he made another call to the emergency number and was told that there were no police available to come to his aid and could he please get into his vehicle and drive his B‑double to the Woodburn Police Station where he would find someone to assist him. The plaintiff told me that he had checked his call records and that there was this 22‑minute gap between the two 000 calls. When asked how he was feeling during this period of waiting the plaintiff said, colourfully, that he "felt like a piece of crap".
The plaintiff then told me that he drove to the Woodburn Police Station and rang the bell at the station. He told me of having pins and needles and pain in his left arm and that he was unable to bear weight on his left leg. Nevertheless he was able to drive from New Italy, or thereabouts, to Woodburn and after talking to police for a short period of time he was then able to drive to Brisbane; from one Brisbane depot to another and then from Brisbane back to the Macksville Hospital where he arrived in the early hours the following day.
The effect of the plaintiff's evidence was that the police at Woodburn were disinterested in what he alleged, did not take a statement from him and indeed did not wish to take a statement from him and that he eventually went to Bowraville Police Station and made a statement but that did not occur until Wednesday 18 May 2011, some four weeks later.
The first relevant paragraph of the plaintiff's statement of 18 May 2011 is this:

"About 3.30pm on Wednesday 27 April 2011, I was driving a Ruttley's b‑double north on the Pacific Highway[,] New Italy. A vehicle sat behind me from Fairy Park, or for about 25 minutes. This vehicle was a Mitsubishi Triton ute. During this time, there were three overtaking lanes, however this vehicle did not overtake me."

The plaintiff did not give evidence to that effect. I am unaware of the Fairy Park but there is near Mclean, on the Pacific Highway, "Ferry Park" and that is probably about 25 minutes south as one drives on the highway to New Italy. The statement suggests that the defendant had numerous opportunities to overtake the plaintiff but did not use them.

The next paragraph of the plaintiff's statement is this:

"There is an overtaking lane in the vicinity of New Italy. It is the second overtaking lane south of the New Italy speed cameras. The Mitsubishi Triton sat behind me the entire length of the overtaking lane. There was a vehicle towing a caravan in front of me, which was doing the same speed as me (98 km/h). At the end of the overtaking lane there was no‑one in the right lane and the Mitsubishi Triton was behind me. I put the right blinker on to move into the right‑hand lane as the left lane had ended. As I was about 2 feet into the right‑hand lane[,] I saw the Mitsubishi Triton accelerating past me. He was up to the prime mover at this stage."

One will note, immediately, that in the statement the plaintiff said that in front of him was a vehicle towing a caravan but in his sworn evidence he said that there was no‑one ahead of him.

The next paragraph of the statement is this:

"I could hear the vehicle's engine accelerating. He kept accelerating past me and the box trailer he was towing collided with the driver's side of my truck at the side steps. He kept on accelerating and the trailer collided with the front driver's side steering wheel and then the side of the bull bar. The trailer lifted up off the ground and it sat on the front of the bull bar and my bonnet."

I can readily accept that since the plaintiff said that the trailer struck his fuel tanks; that the trailer also struck the side steps of his prime mover and there is some contemporaneous photographic evidence to the same effect. However, there is no other suggestion that the trailer lifted up off the ground onto the bonnet of the prime mover; that is patently nonsense.

The next paragraph of the statement is this:

"I backed off and the trailer fell off the front of my truck. The Triton pulled over to the left and I stopped in front of him. The male driver got out of the Triton and approached the front of the truck. I got out of the truck and turned the camera on in my mobile phone to take a photo of a our vehicles as proof of what happened. The male started yelling and cursing at me calling me names such as "Fucking idiot". I took a photo of the male and he got back in his vehicle and started the vehicle's engine."

How the plaintiff backed off his rig is unclear. He told me in his evidence that he did not brake. He may have meant, in the statement, to indicate that he eased off the accelerator. But there is no oral evidence that the trailer had mounted onto the front of the plaintiff's truck. The plaintiff gave no evidence that the defendant was yelling at him and cursing him and calling him names and, indeed, it was frankly conceded by the learned senior counsel for the plaintiff that the statement that the defendant was doing such things was incorrect. There is no explanation given by the plaintiff in that paragraph as to why the defendant appears to have been acting aggressively. According to the plaintiff's version, the defendant returned to his vehicle and got back into it.

The next three paragraphs of the plaintiff's statement are these:

"I stood in front of his vehicle to stop him from leaving as he had not supplied me with his details as required after an accident. The male turned the vehicle to the left, then quickly to the right to pull out into the lane of traffic.
In doing this, the front driver's side mirror of the Triton has hit my right‑hand ribcage, which spun me around. He kept driving and the driver's side, near the drive tyre, hit me and knocked me to the ground. He kept driving and the two wheels from the trailer he was towing ran straight over me.
I did not lose consciousness but ended up in the lane of traffic. I got up and got off the road and called 000. After sometime, the police had not arrived so I called 000 again and I was directed to attend Woodburn Police Station. I drove to the police station and spoke to the police there."

On the plaintiff's own version of events, when he fell onto the ground, he fell onto the shoulder of the road and not into the lane that carries the traffic. One will note that the plaintiff, in the statement, said that after he was knocked down he got up; although subsequent histories indicate that the extent of the damage done to the plaintiff was much more significant because he laid on the carriageway for some 22 minutes. Finally, I should relate that in the final paragraph of his statement the plaintiff said that as a result of being struck by the defendant's vehicle he sustained a broken left arm, sore ribs, a sore face, a bruise on the side of his left leg and tyre tread marks on his back.

When the plaintiff went to the police station, he was interviewed by Senior Constable Brown. Woodburn Police Station is a small station. There were only two police officers attached to the station at the time. They were Senior Constable Hosken, who was the lock‑up keeper, and Senior Constable Leber. It would appear that on the afternoon of 27 May 2011 Senior Constable Leber was off duty. Senior Constable Hosken was working with Senior Constable Brown who was then attached to the Evans Head Police Station.
Senior Constable Brown gave evidence before Senior Constable Hosken. One can understand why because Senior Constable Hosken had little, if any, memory of the events currently in question. Senior Constable Brown told me that he and Senior Constable Hosken were in a police vehicle and were driving into Woodburn from Evans Head. They were travelling on the Evans Head Road. Evans Head Road joins the Princes Highway, which is in fact the main street of Woodburn, north of the Woodburn Police Station. Senior Constable Brown told me that as they were driving towards the police station there was a truck parked on his right‑hand side, which was a B‑double truck. He also said that there were people waiting. He told me that on the left‑hand side there was a car and a trailer. The inference to be drawn is that the B‑double was the plaintiff's vehicle and the car with the trailer was the defendant's vehicle. The Senior Constable was unsure as to whether the car and trailer were parked there as he approached but they were soon after.
The plaintiff and the defendant were there to greet the police but not to greet each other. In fact, there was hostility between the plaintiff and the defendant. Senior Constable Brown described each of the men as being agitated. He said they were talking across each other or through the police at each other. Senior Constable Brown went into the police station and conducted an interview with the plaintiff. It appears that the defendant had also entered the police station but Senior Constable Hosken took the plaintiff outside the police station to deal with him outside the small building.
The notes which Senior Constable Brown made in his notebook are exiguous. They record an interview at 4.30pm. They record that the plaintiff gave a description of the incident occurring on the Pacific Highway 3 to 4 kilometres south of the New Italy speed camera. The rest of the entry are the details of the defendant's B‑Double rig and the plaintiff's mobile telephone number and the COPS event number and the damage done to the plaintiff's vehicle. He did not record the plaintiff's name, address or licence details. Nevertheless, Senior Constable Brown was able to give me a description of what he was told by the plaintiff.
At the time of giving evidence, Senior Constable Brown was recalling events that had occurred five and a half years previously. One would think that in that five and a half years he would have attended upon many accident scenes, would have interviewed hundreds if not thousands of potential witnesses to various events, and would have no particular memory of what a person said five and a half years earlier. However, the senior constable told me that he started to complete a COPS event that evening, that is, sometime after he had attended to another job which was described as urgent, then attended the place where the police thought the incident in question may have occurred and then returned to a police station to commence a COPS entry.
The senior constable was then cross‑examined about a number of versions of the "COPS entry". One version was eventually marked for identification 2, another version was eventually marked for identification 3. When shown MFI 2 and MFI 3 the senior constable pointed out that each of the COPS entries that he had been shown was incomplete or deficient in that each only provided a "crash summary", which is only what was allowed to go out to the media. He said that the COPS entries he had been shown did not show a complete narrative. Eventually what might be a complete COPS entry was marked for identification 4. However, neither party tendered MFI 4. The only relevant conclusion is that what Senior Constable Brown said in evidence was consistent with MFI 4, the full COPS entry, and therefore the defendant did not need to tender it nor did the plaintiff wish to do so because it perhaps only corroborated the evidence that had already been given by Senior Constable Brown or otherwise was not consistent with the plaintiff's case. One would think, therefore, that what was said by Senior Constable Brown about his interview with the plaintiff was a contemporaneous version of events given by the plaintiff and likely to be accurate. The senior constable told me that the plaintiff said that he had been travelling north near New Italy, he was driving in the left‑hand lane. The plaintiff told the senior constable that there was a car that was overtaking him as the left‑hand lane was closing. In essence, the plaintiff maintained that the car only started passing the plaintiff after he started to merge into the right‑hand lane.
The description given by Senior Constable Brown of what the plaintiff said, according to my notes, is that it took some time for the defendant to stop. According to Senior Constable Brown, the plaintiff told him that the defendant's vehicle stopped in front of the plaintiff's vehicle and the driver, who was the defendant, did not get out of his car. Senior Constable Brown recollected the drivers were yelling at each other. Senior Constable Brown told me that the plaintiff said that he put a stick in front of the car to stop it driving off. However, the car did drive away and as it did so, it clipped the plaintiff on the left arm. The senior constable told me that he offered to call an ambulance to assist the plaintiff but the plaintiff declined that offer.
According to Senior Constable Brown, the plaintiff needed to get his load offloaded at the depot in Brisbane. As far as the Senior Constable could recollect, the plaintiff was walking around normally, although the Senior Constable was not keeping him under close observation. According to the Senior Constable, the only complaint the plaintiff made was about his left arm. Senior Constable Brown told me that he said that the police that he would look into the matter later. The plaintiff was asked to make a statement but declined to do so, but the Senior Constable told the plaintiff that he would need to make a statement in order there be any further action in respect of complaint the plaintiff had made.
It is common ground that the amount of time that Senior Constable Brown and Senior Constable Hosken could spend at the Woodburn Police Station talking to the parties was limited in that they had received a call to go to an urgent job and they were on their way to that "urgent job" when they were hailed down, probably by the plaintiff, as they were passing the Woodburn Police Station. After the two Senior Constables had attended to the urgent job elsewhere, they clearly returned to the Princes Highway, 3 to 4 kilometres south of the New Italy speed cameras, to try to find any evidence consistent with the plaintiff's allegation.
It is clear that Senior Constable Brown remembered going searching for evidence but his only recollection is that it was dark and there were no obvious signs of any collision that he could remember. They did not find the "stick" referred to by the plaintiff but they did find an old wooden guidepost that they believed could have been the item referred to by the plaintiff. Immediately after this shift, Senior Constable Brown went on leave, leaving further investigation to Senior Constable Hosken.
It is extremely unfortunate that either in chief or in cross‑examination Senior Constable Brown did not have drawn to his attention photographic evidence which became exhibit M, which are colour photographs, and exhibit P which are very poor quality images but clearly came from photographs taken by Senior Constable Hosken or Senior Constable Brown on 27 April 2011. If that photographic evidence had been shown to Senior Constable Brown his memory may have been refreshed and he may well have been able to give further detail.
As I have already mentioned, that is common ground that the plaintiff pulled up 100 metres ahead of the defendant, not vice versa as the Senior Constable said. Further, it is common ground between the plaintiff and the defendant that the defendant did alight from his vehicle and was outside his vehicle for some time, which, again, is inconsistent with what Senior Constable Brown recalled.
Exhibit P shows an image of the plaintiff. The first of the 25 images shows the plaintiff from the waist up displaying his left forearm. The next photograph appears to me, as it appeared to Senior Constable Hosken, to be the photograph of an elbow; one can clearly identify the olecranon. There appears to be proximal to the olecranon some form of wound or lesion; it may merely be a contusion. However, the next two images are of a leg in jeans and it appears to me to be the left leg in the area between the thigh and the knee. One of the images shows marks which may be marks or, as Senior Constable Hosken said, they could be creases. On the image, which I have numbered 3, the marks or creases can be seen vaguely but there is a closer‑up image in photograph 4.
If the plaintiff was only complaining of his elbow, why would the police take photographs of the plaintiff's be-jeaned left leg? The inference to be drawn from this contemporaneous police photograph is that the plaintiff made some complaint about his leg left which did not find its way into the COPS entry and hence the evidence of Senior Constable Brown that the plaintiff's only complaint was about his left arm.
Whilst I am discussing those photographs, I should indicate what they further represent. Photograph 5 is a photograph of a Queensland number plate DD 43 30. It appears to be the number plate of the trailer. The following images numbered 6, 7 and 8 are all of a caged extended box trailer consistent with what is shown in exhibit B. Photographs 9, 10, 11 are photographs of a wheel with a very mangled tyre. That wheel appears to be lying on the tray of the trailer. That is consistent with the defendant's evidence which is encapsulated in the statement made by the defendant in Queensland on 10 May 2011, some two weeks after the event. The relevant parts of the defendant's statement are these:

"[16] I then drove to the police station at Woodburn but there was no‑one there at the station. I arrived there about 4pm to quarter past 4.
[17] As there was no‑one at the station I was still concerned for my safety so I drove to the mechanical repair shop north of the police station to replace one damaged wheel which was to be a temporary repair.

[18] Once I observed the police at the police station I returned and made a verbal statement."

In other words, the photographs of the wheel with the mangled tyre on it are consistent with the photographs having been taken after the defendant had obtained a new wheel for the trailer and had driven it from a mechanical repair shop to the police station.

Photograph number 12 is a photograph of the registration plate of the defendant's prime mover. The photographs numbered between 13 and 17 show damage to the front bumper of the prime mover, to a wheel of the prime mover, and to the driver's steps of the prime mover. Photographs numbered 18 to 25 are attempts to take a photograph of what police believed was the scene of either the initial collision or of the altercation between the defendant's vehicle and the plaintiff's body, according to the plaintiff. They show a bitumen shoulder and grass growing near it. One of them clearly identifies the police vehicle being driven by Senior Constable Hosken and Senior Constable Brown at the time.
A number of the later photographs show a very old, rotten piece of wood which might once have been a guidepost and beside the final image that shows that guidepost is a police baton which was clearly put there to give some indication of the length of the piece of the timber that the police might have believed was the stick identified to Senior Constable Brown by the plaintiff. This whole series of images appear to me to be consistent with photographs taken by the police on 27 April 2011. Indeed image number 6 showing the caged but long box trailer appears to have been taken in the Woodburn township itself, from the background and layout of the road on which it stands, consistent with the police having photographed it when it was parked outside the police station.
Exhibit M, which came into evidence through Senior Constable Hosken, contains copies of photographs which are exhibit A and exhibit B and photographs of the wheel and the bumper and side steps and the bull bar of the defendant's truck and may represent photographs taken by the plaintiff himself on the day of the accident.
In summary, there are some deficiencies in Senior Constable Brown's evidence and I intend no criticism at all of Senior Constable Brown who tried to assist me. However, it must be recalled that at the time of interviewing the plaintiff he made no contemporaneous note but relied on what he recollected some time later that evening about what he had been told by the plaintiff. There are clearly errors in what he recorded; that is, as to who stopped where and as to whether the defendant got out of the defendant's vehicle. I therefore approach his description of the plaintiff's only complaint being about his left arm guardedly because the photographs which were probably taken by him; that is, Senior Constable Brown, show the plaintiff's left leg. That also causes me to approach his evidence guardedly that the only damage done by the defendant's vehicle to the plaintiff was a clipping of his left elbow.
According to Senior Constable Hosken, when the car in which he and Senior Constable Brown drove past the police station in Woodburn, there was only one of the drivers there, and I infer by that he meant the plaintiff, and that the other driver turned up "shortly thereafter", and I infer that that was the defendant and that is consistent with what the defendant said in the statement which I have already quoted. According to Senior Constable Hosken, Senior Constable Brown was the officer‑in‑charge of this investigation, their taking turns to share the load. He agreed that he walked out of the station and spoke to the defendant and that he recorded his details in his notebook, which is correct.
In cross‑examination, Senior Constable Hosken agreed that the plaintiff was agitated and upset and he indicated a problem in his left forearm, indicating that the plaintiff was demonstrating holding a closed fist with an angle of about 110 degrees between his forearm and upper arm and moving the arm at the shoulder level by rotating the shoulder joint. When exhibit M was put into evidence, the Senior Constable told me that he did not know the origin of those photographs. When shown exhibit P he was able to identify most of the images, just like anybody else who looks at them. But he said he could not remember taking photographs nor could he remember Senior Constable Brown taking photographs. He did not remember taking any photographs at the "scene" of the investigation nor could he remember Senior Constable Brown taking any such photographs, but, clearly, they were taken. I set that out more thoroughly in the evidentiary ruling I made on Wednesday 23 November 2016.

The defendant’s case

I now turn to discuss the defendant's evidence of what occurred on 27 May 2011. Mr McLeod told me that the original line of traffic before the overtaking lane appeared was the plaintiff's truck followed by an unidentified car followed by a white Falcon car followed by his Triton motor vehicle. The defendant's description of the passing manoeuvre given in evidence is consistent with what he said in his statement which, as I have earlier indicated, was given to police in Queensland on 10 May 2011. The statement says that the trailer that he was towing had a registration number of 025 QHX (Queensland). That is inconsistent with the photograph which is in exhibit P and may well be inaccurate. Nothing really turns on that except it is, perhaps, an indication of reliability. The defendant’s statement continues thus:

"[6] The accident occurred when three vehicles, including mine, which was the last of the three vehicles, overtook a B‑double semi that was travelling in the slow (left‑hand) lane northbound. The vehicle in front of the Falcon seemed to slow after passing the B‑double causing the Falcon to slow and me to slow down to approximately 80 km/h.
[7] At that time I was level with the driver's cab of the B‑double and prior to reaching that point I had seen no indication by the B‑double to indicate that it was going to veer out of the left‑hand lane across to his right.
[8] As I passed I observed the B‑double starting to move to the fast lane and as I passed the front of the B‑double I heard a bang and felt a jolt. The trailer had been pushed sideways by an impact with the Prime Mover of the B‑double.
[9] I travelled another 500 metres to a safe place to check the damage. The B‑double driver drove past me and locked up his brakes.
[10] The B‑double pulled up approximately 100 metres ahead. I exited my vehicle to inspect the damage to the trailer. I observed the B‑double driver coming in my direction yelling and shaking his fists. I couldn't hear the exact words but I could hear him yelling obscenities."

I am not here to determine liability for property damage caused by a collision between the plaintiff's prime mover and the trailer being towed by the defendant. Were I doing so, I should point out that everything points to the plaintiff's not slowing down as the lanes were merging; that the defendant's vehicle was probably in the right‑hand lane as the left‑hand lane was ending and the plaintiff was required to give way to the defendant. However, it is clear from what the defendant said that he could not go to the left and he did not brake and hence the collision occurred. However, either way, there was a collision and I can understand that each of the plaintiff and the defendant thought he was "in the right" at the time of the collision, and that there may have been feelings of other than goodwill between the two men after the collision occurred.
The thrust of the defendant's evidence is that after he had stopped, the plaintiff's vehicle passed him. The plaintiff locked his brakes and skidded to a stop raising, a cloud of dust. The cloud of dust appears to be pure hyperbole. The images in exhibit B and exhibit M, and what one can infer from exhibit P, show that the verge of the highway in the area in question was covered in grass. I cannot accept that, where the defendant pulled up on what appears to be thick grass, but 100 metres further along the highway there was bare earth or gravel: it is implausible. Again, it suggests hyperbole.
The defendant told me, in his sworn evidence, that he was concerned about damage to his trailer. He alighted from his vehicle to assess that damage. He walked from the driver's door of the vehicle, around the front of the vehicle, to the nearside of the trailer to inspect the damage to the leading wheel of the two wheels on the nearside of the trailer. Having done that he then reversed his route back towards the front of his vehicle, eventually returning to the driver's door. According to the defendant, the plaintiff got out of his truck and was walking towards the defendant yelling obscenities at him. In his oral evidence, Mr McLeod used the word "fuck" to indicate the type of language that the plaintiff was using.
The defendant says that also he knew that the plaintiff was upset from the plaintiff's body language and referred to him as waving his arms around. The defendant told me that when he noticed this aggressive behaviour he walked back to the driver's door of his car and got back inside his vehicle. He then said that the plaintiff tried to pull a guidepost out of the grass of the road: this was later said to be an aluminium guidepost. The plaintiff extracted the aluminium guidepost from the side of the road and was then waving it around above his head. He then said that the plaintiff approached his vehicle and he thought the plaintiff placed the guidepost in front of his vehicle such that one end of it was pointing into his grill, such that if the defendant drove off the guidepost would pierce his radiator. It is clear that that occurred because the plaintiff himself told Senior Constable Brown that he put a stick in front of the defendant's car in order to stop the defendant driving off.
The defendant says that he wound up the window on the driver's side door which was partly open because he liked to take fresh air into his vehicle. According to the defendant, the plaintiff was swearing and demanding that he get out of his vehicle. The defendant said that he tried to communicate with the plaintiff by shouting at him that he was going to drive to the Woodburn Police Station. The defendant said that he then reversed his vehicle. That manoeuvre is consistent with the plaintiff’s having placed this guidepost, whether it be aluminium or merely a piece of timber, in front of the defendant's vehicle to try to stop him driving forward.
One of the "holes" in the plaintiff's case is the defendant did not reverse but drove to his left and then to his right but that ignores the presence of this stick which the defendant feared was designed to pierce his radiator. According to the defendant, the plaintiff was standing on the right‑hand side of his car; he had walked up to it. The defendant said that the plaintiff punched the driver's side window of the car, and that he then punched the back window of the dual cab, that is, the passenger window at the rear of the driver's window. The defendant said that he saw that in his side view mirror. He said at this stage, he was merely "crawling" forward, that he was driving his vehicle forward very slowly. The defendant said that he then thought that the plaintiff struck the trailer with his fist because he heard a noise consistent with what he thought was punching the solid metal frame of the trailer; that is, the front solid corner of the trailer on the offside front of the trailer. The defendant then said that he saw the plaintiff standing on the side of the road "wringing his hands" but standing upright. He then drove away. As he was driving away, he looked in his left‑hand side mirror and saw the plaintiff running back towards his truck. When he went to Woodburn Police Station there was no‑one there: that appears to be common ground. He then went to the mechanics to get a replacement wheel because of the damage that had been done when the trailer wheel collided with the plaintiff's prime mover. He then told me that when he returned to the police station the plaintiff's truck was there and the defendant then said that he made a statement to the police.
The defendant made it clear that he made a statement to the police, he signed a notebook, but was unable to remember the name of the policeman whose notebook he had signed. It is patently clear that that is untrue. The defendant did not make a statement in a policeman's notebook and sign it at all. He may have made an oral report of his version of events to Senior Constable Hosken but Senior Constable Hosken did not record it and has no recollection of it.
The defendant went on to say that he was so shaken up by the offence at New Italy and events in Woodburn that he needed to stop at Ballina for some time to recover his composure. I find that somewhat difficult to accept as there was the drive from New Italy to Woodburn, not a long drive by any means, but a matter of ten minutes or quarter of an hour, the time spent waiting for the replacement wheel to be affixed to the trailer, the time then spent with the police at Woodburn when the police had an opportunity to take photographs, and then the time spent driving from Woodburn to Ballina, a drive of some 20 minutes, perhaps a little longer, depending on whether one sticks to the highway or takes the ferry across the Richmond River if one follows the old highway from Wardell.
Cross‑examination of the defendant commenced with an inquiry as to why the defendant did not give his particulars to the plaintiff. The defendant said that he was afraid for his own safety and again referred to the plaintiff's mannerisms, his body language, the way he was waving his arms around and the fact that he had pulled the post out of the ground and was wielding it in what may have been a threatening manner. The defendant then said, however, that the plaintiff pulled the guidepost from the side of the road when the defendant was 60 metres from the defendant's vehicle. At that time, the defendant was already back inside his vehicle having got out to inspect the damage and returned to the vehicle. That beggars belief. If, from the beginning, the plaintiff was acting in an aggressive and hostile manner, and then went to the side of the road to extract the guidepost from the road, and there was still 60 metres between the defendant and the plaintiff, then the defendant could easily have driven off and taken himself directly to the Woodburn Police Station and perhaps safety. However it is clear, from even what the defendant himself says, that after the plaintiff got the piece of timber or guidepost or stick and placed it directly in front of the defendant's vehicle ‑ in other words, according to the defendant's version of events, notwithstanding the fact that the plaintiff was acting aggressively and in an hostile manner before he extracted the guidepost ‑ he sat in his vehicle, letting the plaintiff approach his vehicle to place an object immediately in front of the defendant's vehicle. That is extremely bizarre behaviour, if it be correct.
The defendant then said that the plaintiff had not photographed him when he was out of the car. Eventually the defendant was shown exhibit B, the photograph taken of him by the plaintiff outside the defendant's car. The defendant sought to explain that away by saying that the photograph had been perhaps taken with a zoom lens or had been zoomed in on a computer image. I am unable to accept that. A, perhaps better, copy of exhibit B is a copy contained in exhibit M. I am asked to believe, by the defendant, that an image taken by a mobile phone from perhaps as far as 100 metres away and at least 60 metres away; that is, before the plaintiff stopped to extract the guidepost from the side of the road, could somehow show the image which is shown in exhibit M. Even with modern camera technology such a zoom function is possibly, maybe, unheard of, and implausible.
When cross‑examined about the punching of his vehicle, the defendant was unable to tell me whether the plaintiff punched using his left hand or his right hand. He then observed that at one stage the plaintiff was waving the guidepost in one hand and his mobile phone in the other. The defendant said that he was trying to take photographs of the plaintiff's behaviour on his own mobile phone but he was shaking so much as he sat within the security of his Mitsubishi Triton cab that he was unable to take a photograph. Again, I find that quite implausible. He agreed, under cross‑examination, that he in fact had taken no photographs at all and he could have taken photographs for his own use when they were at the police station if he wished to. Having said that, it is clear that I do not believe that either the plaintiff or the defendant has told me the truth, the whole truth or nothing but the truth.

Findings

In my view, the probabilities are these: the defendant did pull up in order to inspect the damage to his trailer; seeing that the defendant had pulled over the plaintiff did so too. I accept that there were about 100 metres between the two vehicles. It is impossible to know whether the defendant walked towards the plaintiff or whether the defendant was merely out of the vehicle inspecting the damage and when he saw the plaintiff walking towards him he started walking back to the front of his vehicle, which was interpreted by the plaintiff as the defendant’s walking towards him. I do not accept, and it was never suggested, that the defendant acted aggressively towards the plaintiff. It is highly likely, in my view, that the plaintiff walked towards the defendant and was mouthing insults and obscenities. That is consistent with my assessment of the man who is the plaintiff. I cannot accept that the plaintiff, when some 60 metres from the defendant, pulled a guidepost from the side of the road and then waved it around above his head as suggested by the defendant. As I said, if that had occurred, the defendant could easily have driven off: he did not.
I accept that the plaintiff probably picked up a stick that he found in the side of the road, put it in front of the defendant's vehicle in an attempt to stop the defendant driving off. I accept that the defendant may have been alarmed and re-entered his car and locked himself within it. I accept that the plaintiff was standing in front of the defendant's vehicle, not directly in front of it, but to the side and perhaps more towards the driver's door of the vehicle than the front of the defendant's vehicle. The plaintiff's evidence of the defendant’s driving to his left and then to his right may be an attempt to place the defendant closer to the centre of the carriageway than the offside of the defendant's vehicle. I accept that the plaintiff was standing closer to the centreline of the highway than was the offside of the defendant's vehicle. I accept that the defendant then tried to drive off and that there may have been a punch thrown by the plaintiff at the defendant's vehicle. Whether it connected with the defendant's vehicle or not, I do not know because there is no objective evidence of it and no suggestion of any damage whatsoever to the defendant's Mitsubishi Triton vehicle. Clearly, there was some interaction between the defendant's vehicle and the plaintiff.
According to Senior Constable Brown's history, the plaintiff was clipped on his left arm perhaps by the trailer. The question really is whether there was more damage than that and whether the plaintiff was knocked to the ground and then whether the offside wheels of the trailer passed over the plaintiff's body or part of it. It appears to be more probable than not that the plaintiff's body was struck by either the defendant's vehicle or the trailer being towed by that vehicle, causing the plaintiff to fall to the ground and causing the tyres of the trailer to run over at least the plaintiff's left leg. I make that finding because there is some objective evidence to support it.

The hospital records and their significance

In the early hours of 28 April 2011, the plaintiff presented at the Macksville District Hospital. Triage notes were made commencing at 3.02 by a nurse. They record that the plaintiff was complaining of pain in his left arm, swelling, and pins and needles presumably in the left arm and pain in the lower back, painful left anterior lower ribs, a complaint of a painful nose and a complaint of painful left thigh. The history is this:

"Involved in a motor vehicle accident. Alleges was run over by a box trailer while he was walking around incident at 1530. Patient drove his truck back and forth to Brisbane."

Clearly, there is the allegation that the plaintiff was run over by the box trailer being towed by the defendant. There would not appear to have been any medical practitioner available at the Macksville District Hospital in the early hours of this Thursday morning. The next entry made was made by the same nurse; it is dated 3.45am. The note is this:

"Patient put to bed. Panadeine Forte x 2 given. Patient asleep snoring."

Clearly, the triage nurse put the plaintiff in a bed and by 3.45 he was fast asleep. The next entry is timed at 6.27 on the same morning; it is made by the same nurse. The note is this:

"Patient slept on an off. Observations attended. Pins and needles left fingers. Swelling left fingers gone down since elevated it on the pillow. Patient comfortable. Not yet seen by CMO."

The initials "CMO" usually mean a Company Medical Officer. I am not sure of their significance here but it may be a Consulting Medical Officer.

In any event, the only doctor who appears to have examined the plaintiff on this day was Dr Peter Locke who saw the plaintiff at 8.25am. The history recorded by Dr Locke is this:

"Truck driver.
Driving north yesterday.
Incident with another vehicle (4WD) about 3.30pm.
Both vehicles pulled over.
Craig took photos of car/driver.
Driver of 4WD took off.
He 'ran me over'.
Still drove his truck to Brisbane and back.
Now complaint of lower back pain, left arm/elbow pain."

On examination of the back, Dr Locke noted that the plaintiff was tender in the lumbar spine but displayed a full range of movements. Importantly, he said this about his examination of the left elbow: it was swollen and tender and there was a decreased range of movements. He noted some "minor tenderness" about the left hip but it displayed a normal range of movement. There is then reference to muscle tone and power, reflexes and sensation and the right being equal to the left, being normal. They appear to be a range of testing of the limbs for peripheral reflex problems, which might indicate some spinal damage. The "impression" recorded by Dr Locke was of multiple contusions. He repeated a prescription for Panadeine Forte and ordered X‑rays of the left elbow and the lumbar spine; those X‑rays were made at 9.07am.
The X‑ray of the low back is this:

"Vertebral alignment is normal. There are small osteophytes at the anterior disk[sic] margins in the lower thoracic and lower lumbar spine. No fracture or dislocation seen. The sacroiliac joints as imaged appear normal."

The X‑ray of the left elbow is reported thus:

"No fracture seen around the elbow. Left forearm: there is deformity of the distal shaft of the radius consistent with old healed fracture. There is induration of the soft tissues around the mid‑forearm but no definite acute fracture is seen."

Those X‑rays were reviewed by Dr Peter Lawler at the Macksville District Hospital at 11.35 later that morning. According to Dr Lawler, the X‑rays showed a fracture of the left distal radius about two‑thirds along the shaft with some minimal displacement. In other words, he believed they showed a recent fracture. The notes made at the hospital then confirm that Dr Lawler discussed the matter with the orthopaedic registrar, Dr Greg Ceccato. Dr Ceccato suggested a large back slab on the ulna side, with a radial slab and an oblique left elbow section, and recommended that after the back slab was applied a further X‑ray was carried out. It would appear that the plaster was then applied to the plaintiff's left forearm and at 12.21pm a further X‑ray was performed which is reported thus:

"Bones are in satisfactory alignment on these films taken through plaster. Old fractures of the distal radius and ulna are noted."

At 12.39pm, Dr Lawler noted that the X‑ray showed no displacement of the fracture and it appears that immediately thereafter the plaintiff was discharged from the hospital. That cannot be gleaned directly from exhibit D, the hospital records, other than by inference because there is no further entry on that date after 12.39pm. Such a discharge is consistent with the plaintiff's own evidence.
Learned senior counsel for the plaintiff relied on the X‑ray taken at 9.07am indicating induration of the soft tissues around the mid‑forearm. I cannot assign to that the significance urged upon me. "Induration" is the abnormal hardening of any tissue. Usually it is due to inflammation or invasion of the tissue by other tissue, such as fibrous tissue, or it can be due to a tumour. It could also be due to scar tissue from earlier surgery and in that regard one needs to consider the opinion of Dr Scott Harbison who says at the top of p 7 of his report of 13 May 2015 that there were scars on the forearm resulting from the injury of 1996.
However what is, in my view, significant is the finding by Dr Locke at 8.25am of swelling and tenderness over the left elbow and a decreased range of movement. Swelling is objective. What caused the swelling is unclear to me but if one ties in with it the photograph of the elbow, number 2 in exhibit P, which suggests some local damage, it is consistent with the left elbow striking something. However, if the defendant's vehicle or trailer struck the plaintiff's left elbow, it is impossible to see how that could cause a fracture lower in the forearm. It was suggested by the defendant that the fracture of the forearm could be caused by the plaintiff’s punching the defendant's vehicle and/or the defendant's trailer. Such a punching injury might cause a re‑fracture of a previous fracture site that was somehow weaker than it otherwise ought be. However, that would not explain damage around the elbow causing swelling of the elbow. However, both the fracture and the lesion at the elbow and the swelling found by Dr Locke are consistent with the plaintiff striking his elbow when he fell to the ground and then being run over as the plaintiff said.
Furthermore, the complaint of tenderness around the left hip and of some back tenderness is consistent with perhaps the car running over the plaintiff's left leg which is consistent with the photographs numbered 3 and 4 in exhibit P and could also explain a complaint of tenderness around the hip because of some flexion problem and in the low back for exactly the same reason. In short, the recent fracture of the left forearm, which is undoubted, and the recent soft tissue damage around the plaintiff's left elbow are consistent only with a history of the plaintiff’s having been knocked down and run over
Doing the best I can on the objective evidence; that has led me to the conclusion that somehow the plaintiff was struck by the defendant's vehicle or the front of the trailer, knocked to the ground, when he could have suffered an abrasion or lesion at his left elbow, suffered local damage around the elbow and the forearm fracture is consistent with having been run over by the trailer wheels. The two photographs in exhibit P of the plaintiff's left leg indicate to me that there was a complaint to the police of a problem with the left leg and there may have been an attempt to photograph tyre markings on the plaintiff's left leg jeans.

Credibility

However, having made those findings, I am still troubled by issues relating to the plaintiff's credibility. The plaintiff's description of events subsequently to medical practitioners has been wildly, in my view, exaggerated. However, to explain my thought processes, it is perhaps better to use this analogy. One is familiar with the story of the man who catches a large fish. Each time the catch is recounted the fish can grow larger, the colour of the fish might be forgotten and the fish might turn from being brown to being silver. The type of fish that was caught might be forgotten and then reconstructed and turn from a perch to a trout, or the like. A tale can grow different as it is recounted from time to time over a period of years. Here, the plaintiff has been given histories of this event for five and a half years. Furthermore, I have earlier made mention of my views about the plaintiff's memory training and memory retention: that they are not good. However, those things cause his subsequent description of events to be completely unreliable but the question for me is whether the germ of the original story was correct. In that regard, I did not believe the plaintiff had the ability to concoct a story of his being knocked down and run over. To concoct such a story would be bizarre, not only mendacious but extremely cunning.
Equally, the defendant's position is, in my view, unacceptable. The defendant's assertion that he was inside his vehicle when the plaintiff commenced taking photographs of him was untrue. The defendant's assertion, when confronted with the direct evidence to the contrary, that the photograph must have been taken with a zoom camera, or was somehow reconstructed on a computer, is equally, in my view, untrue. The defendant said that it took the plaintiff two or two and a half minutes to pull the guidepost out of the side of the road, but that appears to be a concoction. If it took the plaintiff that long to pull the guidepost out of the side of the road there was adequate time, as well as space, for the defendant to have driven off.
Again, it must borne in mind that the defendant said that the plaintiff pulled the guidepost out 60 metres ahead of the defendant's vehicle and that is also implausible because the defendant could easily have driven off. The defendant said that the plaintiff was 1 metre away from the side of his car when the defendant started to drive off and drove away from him, thus it was impossible for the defendant's vehicle to have struck the plaintiff. That is untrue because, even on the defendant's own version of events, the plaintiff was throwing punches at his car which would have to put him much closer to the car than a metre. The repeated punching of the defendant's car by the plaintiff is equally implausible. Repeated punching by the plaintiff of the defendant's vehicle is the only proper construction of pars 13 and 15 of the defendant's statement of 10 May 2011. I have also pointed out earlier that it is quite untrue to say that the defendant made a statement which was recorded in the policeman's notebook and which was signed by the defendant.
To show why the plaintiff's subsequent histories are unreliable it is necessary to quote some of them. Dr Mark Burns first saw the plaintiff on 15 March 2012, some 11 months after the event. According to that history the defendant's utility scraped the right‑hand side of the truck as well as the brython wire fence, which is untrue. There was no damage to the defendant's utility vehicle at all. There was damage to the trailer but that damage was not caused by collision with the brython wire fence. According to the same history, the defendant "drove directly at Mr Fuller and knocked him sideways", but I do not accept that this was a deliberate manoeuvre on the part of the defendant at all. As I pointed out at the commencement of these reasons, the plaintiff does not allege that this was a deliberate tort. Dr Burns' history continues thus:

"Mr Fuller reported that he immediately noted pain in his back, his left‑hip region, and also in his left arm. He contacted 000 and asked for both an ambulance and a police officer. He reported that the emergency services did not attend the scene so he rang 000 again half an hour later. At the time he was told that the police officers were not available. Mr Fuller then got back into his truck and drove through to Woodburn and parked in front of the police station. Again, he was told that no police officers were available at the time. He then drove to his truck into Brisbane and returned towing another trailer. That evening, when he arrived back in Macksville, he attended Macksville Hospital. He stated that although he was able to drive the truck he had difficulty in taking any weight on his left leg.
At Macksville Hospital X‑rays of the left arm revealed a fracture to the distal radius and ulna. He reported that the doctor in the hospital also manipulated his left hip and following a popping sensation his left hip was then almost pain free. He believes that he may have had a partial dislocation of the left hip."

The plaintiff did not give any evidence that he asked for an ambulance. An ambulance was just not part of the oral evidence at all and if the plaintiff had phoned 000 and stated that he needed an ambulance, it would be hard to understand why an ambulance was not dispatched if the plaintiff told 000 he had been run down by a car. Clearly, he stopped at Woodburn and was interviewed by the police. Again, this history is erroneous. The next problem that I have is about the left hip problem. The plaintiff elaborated on that in his evidence before me and said that the medical practitioner who manipulated his hip in Macksville Hospital was known locally as "Dr Pus". A doctor who was given that nickname was either because he was a very bad medical practitioner, or because he had an unpronounceable or long name that sounded like something similar to "pus".

Suffice it to say that the only doctor who examined the plaintiff at the Macksville Hospital was Dr Peter Locke. That name is not difficult to remember nor difficult to pronounce, nor long. I find it extraordinary to think that any medical practitioner at a hospital would manipulate a patient's hip joint and not record that, and prior to doing so, not having an X‑ray taken. The first thing to bear in mind is the plaintiff's allegation, at this stage, that he had difficulty weight‑bearing on the left leg. If he had that difficulty I find it difficult to see how he behaved the way he did between 3.35pm, the time of the accident, and 3.02am the following morning when he presented to the Macksville District Hospital and made no complaint about ambulating using his left leg. On the issue currently being considered I again refer to the opinion of Dr Scott Harbison, an orthopaedic surgeon, expressed in his report of 13 May 2015:

"Dislocation of the hip is a major injury and is not compatible with being able to walk, albeit abnormally, climb in and out of a truck several times and drive the truck for a number of hours. The notes from the Macksville Hospital from 28 April 2011 record 'left hip‑minor tenderness‑normal ROM'. I think there was no significant injury to the left leg."

It has been postulated by some that there may have been a partial dislocation, sometimes termed a partial subluxation of the left hip joint, but I find that equally implausible. It appears to me that this is a concoction, and I use that word advisedly.

The next history given by the plaintiff was to Dr Alan Hopcroft, a general surgeon practising at Taree who was qualified by the plaintiff's solicitors. Dr Hopcroft first saw the plaintiff on 13 June 2012. The relevant part of the history is this:

"...the driver of the four‑wheel drive immediately returned to his vehicle and drove off but drove straight over the patient, knocking him to the road with his vehicle passing over him. The patient was lying on the roadway and rang 000 and was told the police from Ballina and an ambulance was[sic] being dispatched to the site. Twenty minutes later he called again and was told that the police were having afternoon tea at Woodburn and had called off the ambulance attendance, and by way of telephone call this patient was advised to drive his vehicle to Woodburn, attend the police station and report the accident. The patient, tough as he was, proving later to have a dislocated left hip and a fractured left forearm, drove his semi‑trailer to the police station at Woodburn and waited one hour for attendance. He was told at the end of that time that there was not enough time in the policeman's agenda to lodge the details, and the patient walked out and drove on to Brisbane."

It is not part of the plaintiff's case that the defendant's vehicle drove over the plaintiff. Again, there is the problem with the ambulance and the idea that the plaintiff was told by the 000 operator that the police were having afternoon tea at Woodburn is unacceptable because it is so implausible. Furthermore, to be told that the ambulance had been cancelled without consulting the plaintiff would be so contrary to normal procedure as to be, in itself, implausible. The idea that the plaintiff had to wait to one hour at the Woodburn Police Station for the police to attend, again, is unsupportable. This accident happened about 3.35pm. The plaintiff told me, from his own phone records, that he waited at the site for 22 minutes after the initial 000 call; he would not have left the site until about 4 o'clock. Each of Senior Constable Brown and Senior Constable Hosken note their attendance upon the plaintiff at 4.30pm and the defendant 4.35pm, the wait could not have been any longer than probably 20 minutes.

Dr Hopcroft clearly accepted the plaintiff had dislocated his left hip. That was merely on the plaintiff's own say so and is extremely implausible, if Dr Hopcroft thought to turn his mind to the medical issue, that a person with a dislocated left hip could weight‑bear and persevere in such a condition for 12 hours before going to the hospital where he was found to have a full range of movements despite an allegation of a dislocated left hip. It is clear the plaintiff was offered the opportunity to make a statement to the police at Woodburn but the plaintiff declined to do so. That was clearly the evidence of Senior Constable Brown and I have no hesitation in accepting that evidence, subject to the qualifications I have already made.
Dr Burns re‑examined the plaintiff on 8 October 2014 and again obtained a history of, essentially, this accident being a deliberate tort.
The plaintiff was examined by Dr Chris Oates, a consultant occupational physician practising in Queensland, who examined the plaintiff at Port Macquarie on 12 December 2014. Dr Oates obtained a history from the plaintiff that he is right‑handed. I accept that that was a correct history. The plaintiff tried to tell me in chief that he was left‑arm dominant. However, when I asked him, he told me that he wrote with his right hand, that he caught a ball with his right hand and that when he used a rifle he mounted the rifle onto his right shoulder and fired it using his right trigger finger. In other words, the plaintiff sought to tell me in chief that he was left‑arm dominant when he is clearly right‑arm dominant. Dr Oates's history then continues thus:

"A following four‑wheel drive attempted to pass him, but it was too close to the end of the passing lane and the four‑wheel drive scraped the wire fence in the middle of the road [untrue] which is used to prevent head‑on collisions and also side‑swiped the trailer of his truck [untrue, but the trailer side-swiped his truck]. He pursued the four‑wheel drive a kilometre or so down the road and he then parked the truck in front of the four‑wheel drive. He got out of truck to talk to the four‑wheel drive driver, he was walking towards him but then the four‑wheel driver got back into his vehicle. Mr Fuller then stood facing the four‑wheel drive and took photographs of the vehicle, its licence plate, and the driver. The driver then ran him down with the vehicle and drove off, leaving him for dead. He landed face‑down on the bitumen and one of the wheels of the four‑wheel drive passed over his back, leaving a tread mark. [No‑one ever observed such a tread mark nor was it shown to the police who could have photographed it at the Woodburn Police Station. Furthermore, the wheels of the Mitsubishi Triton itself did not go over the plaintiff's body.] Mr Fuller was not knocked unconscious and rang 000, then lay on the road for about 22 minutes, during which time an ambulance passed by but ignored him. He rang them again and the 000 operator advised him to drive to the nearby Woodburn Police Station where the four‑wheel driver had apparently reported the incident to police. He did this, but the policeman was not interested in taking a statement as he was apparently going on holidays."

"United fractures of lower third of the radius and ulna. Evidence of previous plate fixation with the removal of plates. No evidence of re‑fracture of the forearm. No elbow effusion and the carpal bones are normal."

In a report of 9 December 2011, Dr Marshall noted that the plaintiff was returning to his pre‑injury duties on 27 July 2011. The plaintiff did so; that was confirmed in the plaintiff's oral evidence. In his report of 9 December 2011, Dr Marshall expressed the view that stabilisation "has most likely occurred" and that the prognosis was "excellent" and he gives no reason for him to see the plaintiff again.
The plaintiff's general practitioner was Dr Win Moe of the Bawrunga Aboriginal Medical Service, but there are no clinical notes provided to me from Dr Moe or that medical service. However, they were provided to Dr Burns who commented upon them in his report of 9 October 2014. At the foot of p 2 of that report, Dr Burns says this:

"When first seen in March 2012, Mr Fuller stated that he had had one prescription of analgesics from Dr Moe and no further medication. At that time he required no physiotherapy or further investigations, apart from the forearm X‑rays.
Mr Fuller reported that throughout the remainder of 2012 he continued to see Dr Moe, his general practitioner, as required. From the documentation I reviewed, this was about every three or four months and was mostly for other medical conditions, not for injuries from the motor vehicle accident. In December 2012 he did report some ongoing pain and discomfort in his left forearm."

As far as I can work out, there appears to have been no treatment of the plaintiff for any relevant injury between 27 July 2011 and December 2012.

It would appear that after December 2012, the plaintiff was diagnosed with a carpal tunnel syndrome affecting his left arm. As I have earlier mentioned, the plaintiff saw Dr Burns on 15 March 2012. Under the heading "Current Symptoms" Dr Burns recorded this:

"Mr Fuller reports that his left forearm is a little sore most of the time. He states that he has no further medical attention for the forearm. He reported that his left hip and low back have mostly resolved. He is on no medication and having no treatment."

Dr Burns reported that the plaintiff had returned to working for Ruttley Transport and when that company closed in September or October 2011 the plaintiff found fulltime truck‑driving work with Fred's Transport. He was in such employment at the time of Dr Burns' assessment. According to Dr Burns' findings on examination, he detected no abnormality on examination of the low back nor did he find any objective evidence of organic disability when he examined the plaintiff's left hip. When he examined the left forearm he noted these findings:

"Examination of his left forearm revealed some mild tenderness in the distal radius and ulna only. There was no evidence of muscle wasting in the left forearm. Active range of movement in the left elbow was normal with 140° of flexion, 0° extension, 90° pronation and supination. Active range of movement in the left wrist revealed 50° of flexion, 60° of extension, 30° of ulna deviation and 20° of radial deviation. His grip strength on the right side was 40 kilograms and on the left side was 30 kilograms."

In other words, there was no finding of anything suggesting carpal tunnel syndrome. Dr Burns believed the plaintiff had recovered from the soft tissue injury to his low back and as far as the left hip was concerned, if there were a partial subluxation, the plaintiff had recovered from it. But he thought that there was a slight decrease in flexion of the left wrist, which was associated with the injury of 1996 rather than the motor vehicle accident of 2011.

Dr Hopcroft examined the plaintiff on 13 June 2012. The plaintiff complained of cramping in the left forearm and also of some crepitus in his left hip, with the left leg giving way from time to time, and of minor low back pain without any peripheral radicular symptoms. There was no complaint of any symptoms of a carpal tunnel syndrome. When Dr Hopcroft examined the plaintiff's left arm he said the plaintiff had regained full use of his left wrist and there was full pronation and supination of the left forearm with a powerful grasp of both hands being demonstrated and he could not detect any peripheral nerve deficit sign. In other words, there was nothing suggestive of the plaintiff having a carpal tunnel syndrome at that time. As far as the low back was concerned, the doctor said that the plaintiff had some pre‑existing low‑grade spondylitic change in the low back, and a diagnosis which I am prepared to accept. Dr Hopcroft went on to say this:

"Most importantly, however, the patient now has crepitation in his left hip joint, and with a very high pain threshold and an attitude not to let anything get him down, he is coping with the problem but almost certainly will develop arthritis in the left hip joint from his injury."

To develop arthritis there must be damage to an intra‑articular surface in the relevant joint be it a hip, a knee, an elbow, a wrist. No‑one can tell me how the plaintiff has damaged the intra‑articular surface of his left hip and therefore how arthritis could develop. Furthermore, to postulate, damage to the intra‑articular surface of the plaintiff's left hip, there would have had to be a subluxation, a proposition which I just cannot accept on the evidence, in particular in light of the opinion of Dr Harbison.

Dr Hopcroft noted, at that time, that the plaintiff had lost his position as a truck driver and was seeking a new position as a truck driver but in the meantime working on his farm, the piggery, doing fencing work. On 24 April 2013, the plaintiff had an X‑ray of his left forearm. He appears to have been seen by Dr Marshall on the same day and complained to him of numbness in the fingers of his left hand, mainly the middle two fingers but I do not know whether by that he has meant the ring finger and the long finger or the long finger and the index finger. I take that information from Dr Burns' second report commencing at the foot of p 2. It would appear that at this stage the carpal tunnel syndrome was diagnosed.
In a report of 4 December 2013, Dr Marshall pointed out the plaintiff "has left carpal tunnel syndrome". He does not state that it was causally related to the motor vehicle accident now in question. In the fourth numbered paragraph of the report he said this:

"My last full examination of Craig revealed features consistent with carpal tunnel syndrome. He had developed numbness in the hands and fingers, and his pain had continued to escalate around the hand and the forearm area. This was on 17 May 2013."

I assume that that date is the date of the doctor's last full examination of the plaintiff. On 24 October 2013 the plaintiff was seen by Dr Loiselle, a neurologist, who conducted median and ulna nerve conduction studies which were reported as normal. However, in his report of 4 December 2013 Dr Marshall pointed out that nerve conduction tests had only reliability of 90% and therefore this could be a false reading. He recommended surgery which appears to have been approved of by the CTP insurer and was carried out at the Baringa Private Hospital by Dr Marshall on 23 January 2014. Under the heading "Technique" the doctor said this:

"We then proceeded to do an open carpal tunnel release. His fascia was extremely tight and in particular it was proximally, which you don't usually see."

On 19 February 2014 Dr Marshall wrote two reports, the first was to the plaintiff's solicitors. In that, the doctor said the plaintiff had made a remarkable improvement with complete resolution of the numbness he was getting in the fingers of his left hand prior to the surgery. He expressed the opinion that the plaintiff "will make a full recovery from his carpal tunnel syndrome". In the report to Dr Moe of the same date the doctor said this:

"I have reviewed Craig today, and he cannot believe the difference the surgery has made to his hand. For the first time in 18 months he can finally feel the tips of his fingers and his almost‑instant relief after the surgery."

He noted that the plaintiff had, by that time, returned to driving a truck. Of course, that would date the onset of symptoms to August 2012 after the plaintiff was examined by Dr Burns on 15 March 2012 and by Dr Hopcroft on 13 June 2012 and he had no symptoms or complaints referral to a carpal tunnel syndrome.

Given those facts, if the matter were res integra, I would find that the carpal tunnel syndrome was not causally related to the motor vehicle accident now in question. The plaintiff had returned to working fulltime as a truck driver and returned to doing heavy, arduous work on his farm. Nevertheless, notwithstanding what I have just observed, no medical practitioner has expressed a view that supports the view that I have reached. Accordingly, as there is no medical issue about it, I have to accept that the plaintiff's carpal tunnel syndrome was causally related to the motor vehicle accident now in question, although I have personal doubts about it but that is what the evidence suggests.
Insofar as the out‑of‑pocket expenses include the cost of the treatment of the carpal tunnel syndrome, they are part of the relevant out‑of‑pocket expenses. Accordingly, having said what I have just said, there appears to be no issue that the plaintiff has properly run up out‑of‑pocket expenses amounting to $7,360.27.
The plaintiff's only remaining claims are for future loss of earning capacity, future out‑of‑pocket expenses and future "care". The question is does the plaintiff have any continuing problem with either his forearm, his back or his left hip? Suffice it to say that I am not satisfied on the balance of probabilities the plaintiff directly injured his hip by way of subluxation or partial subluxation and therefore there is no ongoing sequela of any problem for which the plaintiff complained of a tenderness around his hip at the Macksville District Hospital on the morning of 28 April 2011.
The question for me is whether the plaintiff has an ongoing problem with his forearm. I accept that he does but it is relatively minor. The medical evidence makes that case out. As far as the low back pain is concerned, the plaintiff has consistently told every doctor who has examined him since 15 March 2012; that is, for four and a half years, that he has continuing symptoms in his low back. They clearly wax and wane but the complaint is consistent. It is one of the few consistent things in the plaintiff's medical presentation. I note, with some bemusement, that the defendant says the plaintiff only complained about low back pain three years after the motor vehicle accident but that is just an untenable proposition.
The plaintiff has some pre‑existing degenerative changes. I accept that they were pre‑existing degenerative changes. Everybody says so in this case except for Dr Chris Oates. That practitioner refers to them as "post‑traumatic degenerative changes" but that is an untenable proposition because, for any radiological abnormality to appear after an injury to the low back, one must expect some six months to elapse and the degenerative change is generally referrable to some injury to a low lumbar disc. Here, the degenerative changes were seen on the day after the motor vehicle accident and clearly could not have been caused by it.
However, some doctors say that there is nothing wrong with the plaintiff's low back. Others say that there is a continuing problem with the low back. In that regard, ultimately, I look for some independent opinion and I have it from Dr Bodel who, as I said earlier, assessed the plaintiff for the Medical Assessment Service of the Motor Accidents Authority and reached the view that the plaintiff had a 5% whole‑person impairment rating resulting from the condition of his low back. I have to admit that I have approached even Dr Bodel's opinions with some caution because after spending some considerable time, over five pages, discussing the documentation available to him, Dr Bodel said this:

"Mr Fuller's history is consistently reported to everybody who has examined him."

That, with the utmost respect, represents a very poor assessment of the medical evidence I have read. However, on the question of the plaintiff's low back Dr Bodel said this:

"This gentleman does have tenderness on palpation at the lumbosacral junction on the left side with some guarding in that area. He reaches forward in flexion with his hands to the mid‑tibia and there is increasing back and left buttock pain at this point and there is also some discomfort on extension. He has a reduced range of lateral bending and this is most restricted on a lateral bending to the left. There is therefore some asymmetry of movement (dysmetria). He has however no impairment of straight‑leg raising however and there is no wasting in either thigh or calf. There is no demonstrable weakness in either lower limb and no weakness of knee flexion on extension or ankle movement. There is no reflex abnormality and no objective sign of sensory impairment in the lower limbs. There are no clinical signs of radiculopathy in the lower limbs."

I have quoted the latter part of that opinion in full because some doctors say that there is some evidence of radiculopathy but there is no consistent finding of radiculopathy by anybody and perhaps some doctors, from time to time, have ascertained a complaint of referred pain into a lower limb. After giving a 5% WPI because of the condition of the plaintiff's low back, Dr Bodel expressed this comment:

"This gentleman does have a DRE Lumbosacral Category II level of assessable impairment in accordance with the description in Table 72 on page 3/110 of AMA4. There is asymmetry of movement or guarding and no clinical sign of radiculopathy and there is a 5% Whole‑Person Impairment rating. I am satisfied that this has arisen as a consequence of the motor vehicle accident."

It is the last sentence of what I have just quoted that I find convincing. Dr Bodel was aware that there are a large number of issues involved in this case, a number of which I have already canvassed.

However, it is clear that medical records were available to the parties of the plaintiff's condition prior to the motor vehicle accident now in question and there is no suggestion that the plaintiff had ever previously complained of any symptoms in his low back at all. There are a number of differential diagnoses that could be made of the condition of the plaintiff's low back. The differential diagnosis offered by Dr Bodel was "soft tissue", although I am reluctant to embrace such a diagnosis. Suffice it to say that there had been some change or elevation in the degenerative condition of the plaintiff's low back, even the precipitation of symptoms of that degenerative condition, and that appears to have been persistent for some five and a half years now, and, in my view, is likely to be permanent.
Dr Bodel also found a 2% whole‑person impairment because of a rateable restriction of movement of the left wrist. At the time that Dr Bodel saw the plaintiff there was no residual sign of the carpal tunnel syndrome. The issue as to whether the plaintiff's continuing problem in his left wrist is referable to the injury of 1996 or the motor vehicle accident of 2011 is really solved by an internal conflict in the reports generated by Dr Mark Burns. In a supplementary opinion of 28 August 2015 the doctor makes these comments about earlier reports that were provided to him:

"In a report also dated 24 February 1997 Dr Graham found 'a slight reduction in extension of the left wrist'. There is full flexion of the left wrist as well as radial‑ulna deviation.
Finally, in a report dated 16 December 1998 Dr Farey, treating orthopaedic surgeon, found 'there was an excellent range of motion in the wrist which was pain‑free'."

Compare those observations with Dr Burns' findings, which are found on p 5 of his report of 8 October 2014, that flexion of the left wrist was reduced by 10° compared to the right and radial deviation of the left wrist was reduced by 5° compared with the right. No such findings had been made back in 1997 and 1998. I accept that the plaintiff has some ongoing problems in his left wrist causally related to the motor vehicle accident now in question but of relatively minor consequence.

The plaintiff's work history is almost impossible to work out; that is, his work history after the motor vehicle accident now in question. Fortunately, the plaintiff makes no claim for past economic loss for any period after 27 July 2011 to date. The plaintiff clearly works long hours, doing hard and arduous work on his pig farm. He clearly has the ability to work long hours as a long‑haulage truck driver driving between the capital cities of this nation although he prefers to work on the north coast of New South Wales, a preference one can easily understand.
I should indicate that the medical evidence, in particular, Dr Hopcroft, suggests that the plaintiff now has some neck pain where there is clearly degenerative change and although it is of recent onset, Dr Hopcroft relates it to the motor vehicle accident in question. But even the plaintiff himself, in his histories, does not.
What will the future hold? If the plaintiff continues to do heavy work, which he obviously will because that is his whole working life, one could expect the inevitable progression of the degenerative disease in his low back heightened, as it has been, and permanently, in my view, by the effects of the motor vehicle accident. I anticipate that the plaintiff will, towards the end of his expected working life, suffer economic loss.
Mr Doherty SC, for the plaintiff, suggested that an appropriate buffer to award the plaintiff for future economic loss was around $100,000. That buffer was large enough to refuse an appellation of a "cushion" by me. However I asked counsel, in the course of addresses, to perform some calculations for me. I asked the plaintiff to postulate a loss of $800 per week for a period of five years, deferred for 15 years, representing a loss of $800 a week between the ages of 60 and 67, the current normal retirement age. Using the appropriate discount figures and applying the 15% discount for vicissitudes of life, a figure of $101,198 was reached. The $800 per week is, in my view, what one would need to pay a labourer to work on a farm such as the plaintiff's piggery at today's rates on a net basis. In my view, therefore, I am happy to award the plaintiff a lump sum of $100,000 as a buffer against future economic loss resulting from the motor vehicle accident, now in question.
The plaintiff also claims for future out‑of‑pocket expenses. This is wholly speculative and I believe the sum of $2,000 is adequate to cover future eventualities a long time into the future.
The plaintiff also claims for "paid domestic care" in the future. I cannot allow such a claim. The plaintiff is doing heavy work, has done it all his life and will continue to do it at least until age 60. Having done that, to suggest the plaintiff will not be able to clean his own home, to dress himself, feed himself, et cetera, is, in my view, risible. The only support given for it is by Dr Oates but I am not impressed by Dr Oates's opinions. I am not impressed by his opinion about post‑traumatic degenerative changes in the plaintiff's low back nor can I accept this statement made by Dr Oates:

"X‑ray of the left hip has shown avulsion fracture at the superolateral aspect of the acetabulum (socket) of the hip and this may result in ongoing intermittent symptomatology in his hip."

The only X‑ray of the plaintiff's hip is an X‑ray made at the request of Dr Hopcroft on 12 May 2014; that is, it is made merely for medico‑legal purposes. The report is reported by the radiologist, Dr Jain, as this:

"Normal femoroacetabular articulation is seen. No significant bony abnormality is seen. A tiny bony fragment is seen adjacent to the superolateral aspect of the acetabulum. It may represent a small osteophyte or may be related to old trauma."

No‑one has disagreed with that radiological report. In fact, Dr Oates quotes it on p 4 of his report but then expressed the above view of the X‑ray on p 7. To suggest that the X‑ray does show an avulsion fracture is based on the presence of the bony fragment and postulates that the bony fragment was caused by such a fracture and there is no direct evidence of such a fracture at all. It is merely speculation, on the doctor's part, turned into a positive assertion to promote the plaintiff's case. I do not accept the plaintiff has any future need of "care".

The total of the sums that I have referred to; that is, the agreed loss until 27 July 2011, the agreed out‑of‑pocket expenses, the amount I have allowed for future economic loss and the amount I have allowed for future out‑of‑pocket expenses, is $126,186.19.
I have inquired of counsel for the parties were any further reasons for judgment required. I am told that none is so required.
For those reasons, I give verdict and judgment for the plaintiff against the defendant for $126,186.19.
I order the defendant to pay the plaintiff's costs on the ordinary basis until 22 April 2016 and on an indemnity basis from 23 April 2016.
I grant a stay of proceedings until Friday 16 December 2016. The matter can be mentioned before me on that day. If the defendant wishes an extension of the stay, the defendant is to file the appropriate evidence. The evidence is to be served by 4pm on Friday 9 December giving the plaintiff an opportunity to put on any evidence he wishes to put before me on the stay application. Liberty to apply to my Associate to vacate the mention if no further stay be sought.

**********

Decision last updated: 15 February 2017

Medium Neutral Citation:	Fuller v McLeod [2016] NSWDC 377
Hearing dates:	21 – 24 November 2016
Date of orders:	30 November 2016
Decision date:	30 November 2016
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Verdict and judgment for the plaintiff against the defendant for $126,186.19 Order the defendant to pay the plaintiff’s costs on the ordinary basis until 22 April 2016 and on an indemnity basis from 23 April 2016
Catchwords:	MOTOR ACCIDENTS COMPENSATION – Collision between a prime mover being driven by P and a trailer being towed by a twin cab utility being driven by D – Property damage only – A short time later a road-side confrontation between P and D – What occurred hotly disputed – Credibility of both parties in question – Accepted that confrontation was acrimonious and that D drove off but in process his vehicle or its trailer collided with P and knocked him down Defences of contributory negligence and under Civil Liability Act 2002 s52 considered
Legislation Cited:	Civil Liability Act 2002 Workers Compensation Act 1987
Cases Cited:	Fox v Wood [1981] HCA 41; (1981) 148 CLR 438 Sahade v Bischoff [2015] NSWCA 418
Category:	Principal judgment
Parties:	Craig Anthony Fuller (Plaintiff) Peter William McLeod (Defendant)
Representation:	Counsel: Mr J Ringrose (Plaintiff) Mr D Hanna (Defendant) Solicitors: Ticli Blaxland Lawyers (Plaintiff) Moray & Agnew Lawyers (Defendant)
File Number(s):	2014/96759
Publication restriction:	No