Higgins v Granger No. DCCIV-98-980

HIGGINS -v- GRANGER
[1999] SADC 980

HIS HONOUR JUDGE HUME
CIVIL

The Plaintiff is a woman born on the 13th March 1961.
In this action she claims damages for injuries which she alleges were incurred in an accident about 3.50 p.m. on the 23rd July l995.
Her allegation is that she was a passenger in the front seat of a motor vehicle which was stationary at traffic lights on the North East Road at the intersection with O.G. Road. That allegation is admitted.
It is alleged and again admitted that the defendant was driving a motor vehicle in the same direction as the vehicle in which the plaintiff was a passenger but to its rear and that a collision occurred between the defendant’s vehicle and that in which the plaintiff was a passenger.
The plaintiff alleges negligence on the part of the defendant under varying headings but I need not recite them as negligence is again admitted.
All the admissions are made pursuant to s.125 of the Motor Vehicles Act.
As its primary pleading the defendant denies that the plaintiff suffered any injury as a result of the incident or collision and, generally, avers that if there were any injury, it was so minor as to not give rise to any head of damage. That is an oversimplification of the defendant’s pleadings but I will deal with them in more detail if the need arises during the course of this judgment.
The injuries alleged by the plaintiff as arising from the incident or collision are pleaded in the following way. (The references are to the numeration in the statement of claim).
6.1 an injury to her lower back, including muscular ligamentous damage;

6.2... an injury to her neck, including a disc prolapse at the level of C6-7 and muscular ligamentous damage;
6.3... a soft tissue injury to her right shoulder, including tendonitis and damage to the subscapularis and supraspinatus muscles and a glenoid laberal tear;

6.4 damage to the right eye;
6.5 panic disorder, anxiety and depression.

I now summarise as best I can the alleged sequelae of her injury and I refer to paragraphs 7-15 of her final statement of claim.

·.. extensive and ongoing conservative treatment, medication, CT scan, physiotherapy and hydrotherapy, acupuncture and counselling,

·.. pain, discomfort, restriction of movement affecting her right shoulder and lower back; headaches, blurred vision, dizziness and tingling in her right hand; as a result of the stress of her injuries, anxiety, depression and claustrophobia requiring treatment by anti-depressive medication and psychological counselling,

·.. symptoms of sciatica in her right leg related to her lower back injury,

·.. pain and tingling in her right arm related to the injuries alleged to her neck and cervical spine,

·.. blurred vision as a result of injury to her right eye

·.. restriction of her capacity to perform physical activities related to the injury alleged to her neck and back,

·.. as a result of these injuries past and future economic loss and impairment of earning capacity,

·.. impairment of her capacity to perform domestic, social and recreational activities,

·.. future medical expenses.

Plaintiff’s Witnesses

The plaintiff called the following witnesses:

·.. the plaintiff,

·.. Leila Guido, a recruitment consultant specialising in the recruitment of legal staff (of which the plaintiff had been one) as to the work obtained through her,

·.. the neurosurgeon, Ms Cindy Malloy,

·.. Mr Craig Sloan, legal practitioner at Port Adelaide who had employed the plaintiff between l996 and l998, as to her work history,

·.. Mark Dart, a domestic partner of the plaintiff and the driver of the vehicle in which she was a passenger at the time of the subject accident, who gave evidence as to the plaintiff’s activities from the commencement of his association with her up until trial.

·.. Dr Terence Rose, a general practitioner who had been consulted by the plaintiff since October l993,

·.. Dr Nicholas Ford, a psychiatrist to whom the plaintiff had been referred on llth June l998,

·.. Dr Norman Broadhurst, a general practitioner with a special interest in musculo skeletal problems related to rehabilitation,

·.. Dr John Pakos, a general practitioner who had taken over the treatment of the plaintiff after Dr Rose,

·.. Mr Michael Hayes, an orthopaedic surgeon to whom the plaintiff had been referred.

In addition the plaintiff tendered evidence by consent by way of reports from

·.. Dr Hamel, a psychiatrist, and (b) Mr Coats, three reports. Mr Coats was unfortunately gravely ill and unable to give evidence.

The defendant called the following witnesses:

·.. Dr Martyn Ewer, a psychiatrist, to whom the plaintiff was referred by her general practitioner at the time, Dr Rose. He saw the plaintiff on the 23rd April 1994,

·.. Mr Robert Neville Atkinson, orthopaedic surgeon to whom the plaintiff was referred by the defendant’s solicitors for assessment,

·.. Mr Glen Anthony McCulloch, a neurosurgeon who examined the plaintiff at the request of the defendant’s solicitors,

·.. Dr Warrick Blakemore, a psychiatrist who was consulted by the plaintiff during the course of his own general practice on two occasions,

·.. Mr John William Braun, a storeman with the City of Noarlunga, a previous workmate of the plaintiff who had first met her at the end of January l990. He had become her domestic partner. He gave evidence as to her history there and of his observations about her.

·.. Mr David Birks, who had formally been involved in showing two breeds of dogs, Labrador and Rottweiler. It was the plaintiff’s evidence, to which I shall return, that she was involved in showing Rottweiler dogs. Mr Birks at the request of the Rottweiler Club of South Australia Inc., constructed video recordings of various dog shows. The significant recording of a show, which took place in October l995, contained footage of the plaintiff in her activities of showing Rottweiler dogs. That footage was placed in evidence and was shown to various witnesses during the course of the trial.

·.. Mr Max Bourke, a registered inquiry agent, who, acting on instructions from the defendant’s solicitors or agents, attended at the Royal Adelaide Show on the 10th September l998 when he recorded video tape of the plaintiff showing dogs. That film was shown to witnesses.

·.. Ms Jo-Ellen Burns, a person interested in rottweiler dogs since about l984 and a member of the Rottweiler Club of South Australia. Her interest in that breed of dogs was to show them, breed them and train them for obedience and she had held various posts in high positions in the Club. She gave evidence generally about the weight of the dogs, what was involved in showing and the pattern of showing throughout Australia. Ms Burns appeared under subpoena.

Because of obvious difficulties occasioned by the fact that the parties had joined in an estimate of five days as the length of trial and the fact that it had actually occupied fourteen sitting days, with loss of time because of logistical problems, and despite the extraordinary quantity of medical and lay evidence from various sources in a case for this type, I shall attempt to condense the material advanced to the Court so that it is comprehensible.
The credibility to be attached to the plaintiff’s evidence is of critical importance in this case. First in the assessment of reliability which can be attached to her testimony during the trial, and second in the truthfulness or otherwise of the history which she gave to the eight medical practitioners from whom she called evidence, and whose opinions, to their varying extent of expertise, were based upon the history she gave them. Third, that comment must be applied to the expert witnesses called by the defendant.
There are many areas of the evidence advanced which cause me great concern.
For the purpose of simplicity I think it is fair to summarise them under three heads although, as would be expected, the headings tend to blur into one another.
I set them out in the following way.
1...... Whether the plaintiff is demonstrated to have misrepresented her pre-accident history to the medical practitioners involved in the presentation of her case or, alternatively, failed to disclose matters which were relevant.
2...... Accordingly, what weight can be attached to the opinions expressed by those of her expert witnesses who were called to express opinion evidence.
3...... Whether the plaintiff is demonstrated to be unreliable in her evidence presented to court and further, indeed, whether she has been demonstrated to set out to mislead the court.
There are some hard facts which it is important to state at this stage.
First, I bear in mind the pleadings which I have summarised.
Second, I consider Workcover notices of disability and claims for compensation from her former employer, the Noarlunga City Council. The first of these was made on 11th June 1991, seeking compensation for stress and anxiety arising out of the course of her employment in the offices of the Council supported by a declaration of the plaintiff made on 11th June 1991, that the declarations contained in the notice and the claim were true to the best of the plaintiff’s knowledge, information and belief. The second was a pair of similar documents comprising a notice of disability and a claim for compensation alleging conditions of distress, anxiety and depression arising from circumstances in the offices of the Noarlunga Council in which the plaintiff made a similar declaration. These documents allege the date of injury as September 1993 and a cessation of work on 24th September 1993. The declarations were undated, but it would appear that the employer processed the notice and the claim sometime between the 15th October 1993 and the 18th October 1993. It is significant to note that the allegations in the documents relating to the incident or occurrences in June 1991 refer to a period of conflict between the plaintiff and her supervisor, and that the occurrences of September 1993 refer to anxiety and emotional distress.
The third piece of concrete evidence is contained in video taped recordings of the plaintiff engaged in the showing of Rottweiler dogs. The first was taken by an enquiry agent at a dog show at the Royal Adelaide Show on 10th September 1998, Exhibit D36. The second contained video taped recordings of the sixth National Championship Show of The Rottweiler Club of South Australia on the 27th, 28th, and 29th October 1995 which contain, inter alia, footage of the plaintiff showing Rottweiler dogs during the period of that show.
The video tapes speak for themselves, but for the purposes of this judgment it is sufficient to say that I find that each of the video tapes insofar as they refer to the plaintiff, show her bending over dogs that she was showing to adjust their foot position so that they would stand properly to be judged; opening their jaws to demonstrate their teeth to the judge, and running or jogging around the show ring in a roughly triangular form of a distance which appeared to be in the order of 100 metres, with no apparent restriction of movement or difficulty.
The video of the show on the 10th September 1998 was commissioned by the defendant’s solicitors. The video of the Championship Show on the 27th, 28th and 29th October 1995 was taken for archival purposes at the behest of the Rottweiler Club of South Australia. It was not obtained by the defendant’s solicitors until the early stages of the trial, but clearly from the evidence of Mr Birks, the photographer, it was not taken for anything but the purposes of the Rottweiler Club and was not designed to single out the plaintiff in any way.
The video tapes, especially those of October 1995, are particularly important.
In her Rule 46.15 particulars which were sworn on 19th November l999 the plaintiff stated “in relation to my dog breeding business I was restricted in my ability to undertake my usual duties including washing, brushing, training, walking and showing my dogs”, (Exhibit D10).
In her Rule 46.15 particulars sworn on 4th December l988 the plaintiff declared (Exhibit D10 to Rule 46.15 (2) (b) (vi) “For approximately four months following the motor vehicle accident I was wholly unable to perform my business as a dog breeder due to the pain and discomfort and restriction of movement. I experienced in relation to my groin, lower back, right leg, right arm, right shoulder and the headaches and the blackouts I was experiencing”.
It is logical, and I find on the evidence of Ms Burns, that the showing of dogs is an integral part of the business of breeding and selling dogs. That is true as a matter of general experience with respect to all forms of the breeding of specialist types of animals.
When confronted with the inconsistencies between her sworn particulars and the video taped footage of her engaged in the showing of Rottweiler dogs, the plaintiff sought to separate the activity of showing from the activity of breeding. She did so persistently, but in a most unconvincing manner.
Films respectively show the plaintiff engaged in the activity of displaying dogs and as part of that jogging with them or running with them, around a triangular circuit to display their confirmation to the show judge. It would appear that she did so with some success, winning a significant prize at the Royal Adelaide Show on 10th September l998.
More importantly, in my judgment, the video taped footage showed the plaintiff moving freely and without any apparent restriction of her ability in the use of her arm or in her ability to jog, and certainly without any obvious expression of discomfort.
On this topic I simply disbelieve the plaintiff. First because of the disparity between the particulars and her evidence-in-chief and the activities depicted in the video taped material, and second on the basis of her reaction and her attempt to draw what I conclude as a false distinction between the activity of showing dogs and that of breeding them. I am also influenced by her demeanour in the witness box which led me to the conclusion that she was attempting to mislead the Court.
That attempt to mislead is reflected in other principal aspects of my concern. The first of those is reflected in the two claims for workers compensation to which I have referred. In broad terms the plaintiff said that the termination of her employment with the Noarlunga City Council was as a result of a dispute between her Union and the Council in which she was, to use her words, “the meat in the sandwich”. As I have said, probing and the documents demonstrated that that was not the case, and that she had made claims and been compensated for stress and anxiety in l99l, and “anxiety, emotional distress” in l993. With respect to this factor the plaintiff denied that she had any psychological or psychiatric problems before the subject accident. She stated that she was not compensated, but “given a payout” by the Council (xxn 61.18 - 63 et seq).
The plaintiff’s answers in cross-examination (confronted with the evidence which the defendant was obliged to put to her from medical witnesses relating to these two claims) were evasive and unconvincing. She left me with the distinct impression of a person who was trying to evade the truth in order to mislead the Court.
The same comment must be made with respect to the evidence she gave when subjected to cross examination in respect of the dog showing aspect of her claim. Her assertion that the showing was not part of the business was given the lie by her claims as tax deductions for the entry fees to show dogs (xxn 271.30); her claims for travelling expenses to show dogs as a tax deduction (xxn 272.20), and in general terms her assertion (xn 55.16) that she has been hardly able to show dogs at all; that she has been unable to walk sufficiently to train dogs or show them and unable to run or bend to lift a dog. (I refer to a report tendered on behalf of the plaintiff of Mr Lloyd Coates, dated 7/2/98).
It is important when dealing with this topic to comment upon the evidence of Ms Burns. Ms Burns impressed me as an honest witness who attempted as best she could to assist the Court. She appeared under subpoena. I come to the conclusion that that course was necessary, and prevented any suggestion of antagonism on Ms Burns’ part towards the plaintiff. In general terms Ms Burns’ evidence was that she had observed the plaintiff on a large number of occasions before the accident subject to this claim, and after it, at dog shows. At national dog shows she paid particular attention to the plaintiff because she, Ms Burns, was a fellow South Australian competitor. Her evidence was that she saw no difference at all between the way that the plaintiff showed dogs before the subject accident and after it. She recalled the dog show in October l995 in particular and she saw the plaintiff at the Victorian Rottweiler Show in March l996 and recalled seeing the plaintiff on regular occasions at All Breeds Shows since the subject accident.
The plaintiff’s counsel argued that Ms Burns would not have had a good opportunity to make observations of the plaintiff at these various shows. Notwithstanding that submission I find Ms Burns’ evidence acceptable and convincing and a very significant factor in the judgment of the plaintiff’s claim as to her incapacity.
More importantly, however, I think that the video taped evidence and the evidence of Ms Burns have an extremely adverse affect on the plaintiff’s credibility in this case. I emerge from that evidence in contradiction of the plaintiff, with the conviction that the plaintiff has attempted to mislead me.
That conclusion affects the whole of the evidence that the plaintiff advanced through her witnesses. I am forced to the conclusion that not only did the plaintiff set out to mislead the Court but that she set out to mislead all the witnesses whom she called to support her claim. To support her claims in evidence that she had never had any emotional trouble before the motor vehicle accident she told Dr Blakemore (618.28 and Exhibit D30) that she had never experienced any emotional trouble before the accident. Statements in direct contravention of her claims in this action are her reports of her history to Dr Ewer in April l994 of psychological and physical problems dating back as far as l989 (tr. 543.16), a statement to Dr Hamel that she had never had any problems and that she was a tireless worker (tr. 431.9 -434.38), a denial to the psychiatrist, Dr Ford, that she had not made any previous claims for worker’s compensation for psychiatric problems (tr. 468.33) or any sustained periods of anxiety or depression whilst working at the Council. (tr. 467.20); to Dr Blakemore that she had always been fit and well before the accident and never had any emotional problems before it.
It further appears from the reports of Dr Meldrum, the psychiatrist, dated 25.11.93 Exhibit P26, (a report obtained in connection with her worker’s compensation claim) that she had had ongoing problems before that date, of a psychological and psychiatric nature. She complained of physical symptoms in many respects similar to those in respect of which she sought damages in this claim.
Another significant aspect of the case is the telephone conversation which the plaintiff had with her former partner, Mr John Braun, who was called to give evidence. I have mentioned it before. The conversation related to questions of the sale of the house which had been occupied by Mr Braun and the plaintiff in which, in summary, the plaintiff told Mr Braun that attention was being focussed in the trial on the question of the sale of the house and that Mr Braun “should not remember too much about that topic”. (my summary) That telephone call was made during the course of the plaintiff'’ evidence in the trial. When asked about it a few days later the plaintiff could not remember the telephone conversation.
That response was the typical response of the plaintiff to any challenging proposition which it might have been in the defendant’s capacity to prove. It was typical of the entire cross-examination of the plaintiff. It is not necessary to go into a litany of detail. It suffices to say that I found the plaintiff entirely unreliable.

That conclusion leads me to the point where I am simply unable to trust the history that the plaintiff gave to the medical practitioners she called in support of her claim.
If those practitioners based their opinions on the fact that the plaintiff was giving them a reliable history then their respective opinion was formed on very shaky ground indeed.
Quite properly, of course, they accepted the plaintiff as being truthful about her history, as in general terms, they were obliged to do. Demonstratively she was not, in respect of many aspects of her history relevant to the present claim. I do not need to be exhaustive. It is sufficient to emphasise the inaccurate history she gave Dr Blakemore, Dr Hamel and Dr Ford with respect to her previous psychiatric and psychological problems, and her consultations with Dr Ewer in l994, and Dr Meldrum in l993.
In respect of the psychological and psychiatric problems what the plaintiff asserted was unsatisfactory and unconvincing. Her dramatic assertion of claustrophobia and the incapacity to use lifts was unsupported by the facts of her aeroplane journeys to Queensland and Bali. The history she claimed was that she was only able to take one trip on an aeroplane, to Bali, but it subsequently appeared under cross-examination that she had been to Queensland in l996 and again in l999 by aeroplane. These latter two journeys were not reported to the medical practitioners examining her.
My resounding conclusion is that the plaintiff is an entirely unreliable witness. I think from the whole of the evidence she has attempted to mislead medical practitioners involved in the case to the extent that I am unable to be satisfied that their opinions are based on a true history. Accordingly those opinions cannot assist the plaintiff.
I come to the conclusion that the plaintiff has set out to mislead the Court. I am not satisfied on the balance of probabilities that she sustained the injuries complained of in the subject motor vehicle accident. Indeed I am not satisfied that she has any disability at all which results from that accident.
Accordingly her claim is dismissed with costs.

[2000] SADC 69

23 June 2000