Hurley v Lang - [2016] WADC 117

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: HURLEY -v- LANG [2016] WADC 117

CORAM: EATON DCJ

HEARD: 8 FEBRUARY 2016

DELIVERED : 10 AUGUST 2016

FILE NO/S: CIV 2590 of 2014

BETWEEN: WILLIAM JAMES HURLEY
Plaintiff
AND
ROSALIA LANG
First Defendant
SHIH JAY LIM
Second Defendant

Catchwords:

Personal injuries - Assessment of damages - Successive motor vehicle accidents

Legislation:

Civil Liability Act 2002
District Court Rules 2005
Motor Vehicle (Third Party Insurance) Act 1943

Result:

Damages awarded in the sum of $136,109.20

Representation:

Counsel:

Plaintiff:     Mr G T Stubbs
First Defendant             :     Mr D R Clyne
Second Defendant         :     Mr D R Clyne

Solicitors:

Plaintiff:     Kakulas Legal
First Defendant             :     WHL Legal Pty Ltd
Second Defendant         :     WHL Legal Pty Ltd

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

Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161, 192
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
Jongen v CSR (1992) Aust Tort Reports 81‑192
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Paff v Speed [1961] HCA 4; (1961) 105 CLR 549
State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536
Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327

EATON DCJ: In 2013 the plaintiff was involved in two motor vehicle accidents, the first on 10 May and the second on 29 October. On each occasion he was riding his Harley Davidson motorcycle in the early evening.
The first accident occurred at about 5.30 pm on Leach Highway, Myaree, and the second occurred at about 6.15 pm on Stock Road, Coolbellup.
On the first occasion the first defendant, driving a Toyota sedan, moved from the right‑hand lane of Leach Highway into the centre lane, striking the plaintiff and his motorcycle and causing the plaintiff to be thrown from it.
On the second occasion, the second defendant, driving a Mitsubishi Lancer sedan, failed, at the intersection of Stock Road and Ralston Street, to give right of way to vehicles travelling on Stock Road, including the plaintiff on his motorcycle. The second defendant's failure to give way caused the plaintiff to brake heavily and, in consequence, be thrown from his motorcycle onto the surface of the road.
The plaintiff suffered injuries in both accidents.
On 13 August 2014 he filed a writ of summons in this Court. It was accompanied by a statement of claim in which he alleged that each of the first and second defendants had been negligent in the driving of their respective motor vehicles causing him injury, loss and damage.
By a defence filed on 26 September 2014 each defendant admits that they were negligent in the manner of their driving.
In par 8 of the statement of claim the plaintiff pleads that as a result of the negligence of the first and/or second defendant he has suffered injuries, loss and damage. He particularises those injuries as follows:
(a)fractured right radial styloid process;
(b)fractured distal radius;
(c)painful left wrist;
(d)cuts and abrasions to the left knee and both elbows;
(e)cuts and abrasions to his face;
(f)low back pain;
(g)large left calf laceration;
(h)left elbow laceration;
(i)left knee ligamentous injury;
(j)left knee postero-lateral corner injury;
(k)left calf infection;
(l)rotator cuff tear in left shoulder;
(m)left biceps tendinopathy;
(n)left shoulder SLAP lesion; and
(o)frozen left shoulder.
Clearly the foregoing list is a composite list of claimed injuries, some being obviously resultant upon the first motor vehicle accident and some being resultant upon the second. Some, such as the claimed rotator cuff tear in the left shoulder may not be resultant upon either accident and some, such as the claimed frozen left shoulder may not be an injury at all.
In par 9 he pleads the requirement of past and future medical treatment. He particularises those requirements.
In par 10 he pleads that, in consequence of the negligence of the defendants, he suffered and endured pain and residual disabilities. He particularises his residual disabilities as follows:
(a)pain, discomfort and restriction in the range of movement of the left shoulder;
(b)pain, discomfort and restriction in the range of movement of the left knee;
(c)scarring across left forearm;
(d)scarring across left calf;
(e)reduced grip strength in the right wrist;
(f)reduced capacity to walk over uneven ground, soft sand or wear safety boots;
(g)reduced capacity to kneel or bend;
(h)loss of enjoyment of life; and
(i)reduced lifting, carrying and walking capacity.
In par 11 he again pleads that as a result of the negligence of the defendants he has suffered a loss of enjoyment of life. He particularises that loss of enjoyment.
By their pleading the first and second defendants do not admit pars 8 ‑ 10, inclusive, of the plaintiff's claim.
By their pleading they deny each and every allegation in par 11 of the statement of claim.
By pars 12, 13 and 14 of the Statement of Claim the plaintiff pleads a loss of earnings, a loss of economic capacity and superannuation benefits, the need for future assistance with domestic duties, driving, gardening, home maintenance and personal care, that assistance to be provided gratuitously and, finally, travelling and parking expenses consequent upon his injuries and treatment. By their pleading the defendants deny those claims.
Further, or in the alternative, they plead that if the plaintiff has suffered residual disabilities, loss and damage he has failed to mitigate his loss. In particular they plead that he has failed to utilise or fully utilise his retained earning capacity in circumstances where he ought reasonably to have done so and that he has failed to make any or any reasonable attempts to seek alternative paid work in accordance with his retained earning capacity which he ought reasonably to have done.
In the plaintiff's particulars of damage dated 2 December 2014 he pleads that he would have continued to work full-time until at least until the age of 65 years. He pleads that, in consequence of the two accidents he lost all capacity to earn an income for a period of 12 months and thereafter has only a partial capacity for work.
The plaintiff was born on 30 September 1963. He is 52 years old. His secondary education finished in year 9 when, having repeated that year, he left halfway through his second attempt. At the age of 15 he went looking for work, finding employment as a roof tiler and a driveway attendant at a service station. As a young man he spent four years in the army. Following that, his working life has been as a serviceman, plant operator, driver and sometime labourer in the fields of mining and construction.
Along the way he has acquired a number of licenses, tickets and qualifications. Those include tickets in dogging and loader operating. He has qualifications in safe working at heights, elevated work platforms and mines safety. He holds a white card which evidences his having completed safety induction to mines, construction sites and the like. That comprised a two‑day course.
From October 2009 to August 2011 the plaintiff was without a motor driver's licence, having had his licence suspended in consequence of convictions for drink-driving and driving while under suspension. He explained that he was unable to obtain employment because of the general requirement that an employee at a mine-site have a driver's licence. His licence was eventually restored following satisfactory liver function tests.
In the year ended 30 June 2010 the plaintiff was not required to file a tax return because, for that income period, or most of it, he was without a licence and unable to get a job.
The plaintiff's work history has been characterised by fairly brief periods of employment. According to his own resume (exhibit 1) from 2002 until March 2013 he has had 20 separate contracts of employment averaging just a little over four months duration each. In most he has been employed as a serviceman but he has also worked as a labourer, a driver, a pump hand, a trade's assistant in steel fabrication and a loader operator.
The plaintiff has a partner, Deborah Phyllis Craig. They met in 1999 and were, for a time, living together as de facto husband and wife. They did not marry and have no children together. Deborah has children from a previous relationship. The plaintiff explained, in evidence‑in‑chief, that they separated (in that they ceased to live together on that basis) not long after the first motor vehicle accident in May 2013. They continued, thereafter, to share the same residence, having separate bedrooms. That status quo continues.
The plaintiff ceased work shortly prior to the first accident, explaining that he was tired of the routine of fly‑in/fly‑out work. He had, in recent times, been working for Macmahon, a construction and engineering company providing services to clients throughout Australia and overseas. He worked as a serviceman on a railway project in the northern wheat-belt and then at the Christmas Creek Mine in the Pilbara region, eventually resigning at the end of March 2013.
There was also a personal reason for quitting fly‑in/fly‑out work. He explained that his stepdaughter (meaning, as I understand him, a child of a daughter of Deborah Craig) had given birth to a son. He wanted to spend time with the child before returning to work.
The plaintiff explained that he had not abandoned fly‑in/fly‑out work but rather, wanted a break before, perhaps, returning to it. Having spent some time back in the metropolitan area he began applying for work. A company called Workforce International asked him to come for an interview. He applied for a job as a serviceman on waste disposal trucks. About two days later he was injured in the first of the two motor vehicle accidents.

The immediate consequences of the First Accident

Immediately after the first accident, other drivers on Leach Highway stopped to render assistance. The plaintiff was carried off the roadway to the premises of Titan Ford. An ambulance had been called. He waited there and, in due course, was taken by ambulance to Sir Charles Gairdner Hospital in Nedlands. He arrived in the emergency department shortly after 6.00 pm and was seen by a doctor in that department shortly before 7.00 pm.
From there he was admitted to a ward and was, on 13 May 2013, discharged to his home.
The principal diagnosis was a fractured right distal radius. X‑ray examination revealed a comminuted intra‑articular fracture involving the radial styloid process. There was an undisplaced lunate fracture extending from the radiocarpal joint distally where it enters the articulation between the lunate and the triquetrum. In simple terms the plaintiff had suffered a broken right wrist. The emergency department notes indicate that the plaintiff complained of a painful right wrist.
In addition to the findings on x‑ray examination the plaintiff was seen to have grazes and abrasions. In particular, there were grazes to his face and nose, both elbows, the left knee and the right wrist and fingers. His wounds were cleaned and dressed and a tetanus injection was administered. Analgesics were prescribed.
On 12 May 2013 the plaintiff had surgery under a general anaesthetic. He underwent an open reduction of the right distal radius with internal fixation. According to the hospital medical records he recovered well post‑operatively and was discharged to the care of his general practitioner with a recommendation that he make an appointment with a hand therapy clinic for a thermoplastic splint fitting. He was advised to take pain medication as required and to return to an outpatient appointment in about two weeks.
Upon discharge the plaintiff was provided with a medical certificate informing Centrelink that he was unfit for work from 11 May 2013 to 16 May 2013 inclusive with the following note:
Patient can do work that does not require lifting or lengthy use with right arm.
By July 2013 the plaintiff's wounds were clean and dry. He had a good range of movement.

The immediate consequences of the Second Accident

Again, other drivers on Stock Road came to the aid of the plaintiff lying on the road surface. He was unable, he said, to move his left leg and could not get to his feet. He was bleeding badly. Helpers carried him to the middle of the median strip. Again, an ambulance was called and, in due course, the plaintiff was taken to Fremantle Hospital.
At 7.12 pm the plaintiff was presented to the emergency department of that hospital and was admitted to a ward shortly after midnight. The principal diagnosis at the time of admission was multiple lacerations to the lower limbs and calf. Both the left knee and left elbow were the subject of x‑ray examination. No acute fracture was detected at either joint. There was a small‑to‑moderate volume of fluid within the suprapatellar pouch but the alignment of the left knee was normal.
Because of ongoing pain the knee was the subject of an MRI scan. Again fluid was noted. The posterior cruciate ligament appeared intact. There was a high‑grade tear to the anterior cruciate ligament and to the medial collateral ligament. The medial meniscus seemed normal. Other tendons appeared to be intact.
Of obvious concern was a 25 cm long laceration of the plaintiff's left calf. Of lesser concern was a 2 cm wound to the left elbow and the marked effusion of the left knee. Both wounds were sutured.
The plaintiff was discharged from Fremantle Hospital with a brace on the left knee on 1 November 2013 with a recommendation for follow-up treatment at the next available orthopaedic clinic and a review of the wound to the left calf in a fortnight.
On 8 November 2013 the plaintiff attended his general practitioner, Dr Eoin McDonnell at the Port Kennedy General Practice. He told the doctor that he had been treated poorly at Fremantle Hospital and that he had no wish to go back to it. He was, instead, referred to Rockingham General Hospital. The doctor observed that the repaired wound to the left calf was leaking fluid and appeared to be becoming infected.
On 25 November 2013 the plaintiff attended Rockingham General Hospital reiterating that he did not want to return to Fremantle Hospital. The major concern was the state of the wound to the left calf. That was attended to. There was a referral to physiotherapy with respect to problems with the left knee.
On 9 December 2013 the plaintiff returned to see Dr McDonnell who noted 'wants to go privately to see Ortho under MVA, refer Colin Whitewood re left ACL tear. Also left shoulder pain, niggling, aching, reduced Rom'. 'Rom' was an abbreviation of 'range of movement'.
The doctor referred the plaintiff again to Rockingham General Hospital for an ultrasound examination of the left shoulder. That was carried out at that hospital on 10 December 2013. The operator reported that all movement was restricted and that the assessment was, accordingly, limited. The report concluded that there were multiple 'with partial thickness intra-substance tears within the biceps tendon, subscapularis and supraspinatus tendons. There were no full-thickness tears or tendon retraction. There was evidence of sub acromial bursitis'.
The reporter further noted that the extreme limitation of movement perhaps suggested a frozen shoulder. In consequence, the reporter suggested that the plaintiff re-attend for re-assessment.
On 19 December 2013 the plaintiff was admitted to Sir Charles Gairdner Hospital because of the problems with the wound to his left calf. The principal diagnosis was described as being a 'skin abscess'. The purpose of the admission was to treat the problem with a skin graft and a vacuum dressing. The plaintiff underwent a split skin graft on 24 December 2013 and was discharged on that day. He was prescribed medication and requested to make a follow-up attendance in five days for the plastic surgery and four weeks for the orthopaedic aspects.
On 9 January 2014 the plaintiff returned to Rockingham General Hospital and underwent an ultrasound-guided cortisone injection of the left shoulder. The clinical history recorded was of multiple rotator cuff tears and possible capsulitis and sub acromial bursitis.
On 31 January 2014 Dr McDonnell referred the plaintiff to Mr Tony Robinson, an orthopaedic surgeon, advising him that the plaintiff had been involved in a motorcycle accident and had suffered a complete rupture of the left anterior cruciate ligament. He noted that the plaintiff's recovery had been complicated by a left leg laceration that had become infected. That required a skin graft at Sir Charles Gairdner Hospital which subsequently failed. A drain (likely a reference to the vacuum dressing) had been removed some three weeks prior.
Dr McDonnell listed the plaintiff's past medical history as including a supraspinatus tear and adhesive capsulitis of the left shoulder.
On 6 February 2014 the plaintiff was admitted to Waikiki Private Hospital because of the infection to his lower left leg. He was discharged on 24 February 2014.

The plaintiff's health prior to the first accident

On 2 February 2009 the plaintiff attended Dr Mark Jenkins at the Maddington Village General Practice. He had been feeling unwell. The doctor ordered a comprehensive blood test and a further appointment was made for 10 February 2009. Haematuria was evident. On the later occasion medication was prescribed.
The plaintiff returned to see Dr Jenkins at that practice on 10 and 16 December 2009. The problem of haematuria seemed to have disappeared on the second occasion. The matter was to be kept under review.
On 27 April 2010 the plaintiff attended upon Dr Bhajan S Sidhu at the Forrestfield Medical Centre. He told the doctor that he had lost his driver's licence for a drink-driving offence and that he wanted blood tests done, presumably liver function tests. He added that he had not consumed alcohol for a month. On 1 May 2010 the plaintiff returned to review the results of the blood test. His gamma‑glutamyl transferase was elevated so the doctor's advice was to continue abstinence from alcohol.
On 5 May 2010 at 10.28 am the plaintiff returned to Dr Sidhu. A CT scan had disclosed a stone in the gall bladder. The plaintiff needed a letter for his court proceedings.
Also on 5 May 2010 the plaintiff attended upon Dr Richard Evans of the Maddington Village General Practice at 11.17 am. The notes of that attendance suggest that the plaintiff told the doctor that he had been without a driver's licence, that he had not had alcohol for a month and that he was required to attend court on the following day to apply for an extraordinary driver's licence.
On 4 June 2010 the plaintiff attended upon Dr Willem Thiart of the Forrestfield Medical Centre. He complained of having pain in the lower back and shoulders when sleeping over the preceding three months. He had suffered no injury and was pain free when working. The doctor examined the plaintiff and ordered an ultrasound examination and blood tests.
On 8 June 2010 a radiologist, Dr H Brown, reported to Dr Thiart on the results of the ultrasound examination of the plaintiff's shoulders. He had, it was said, been experiencing bi-lateral shoulder pain for months. The finding in both shoulders was of bursitis with no impingement on shoulder abduction. The findings in the left shoulder perhaps suggested an old tear of the supraspinatus tendon. The remainder of the rotator cuff appeared normal.
On 30 July 2010 the plaintiff again attended Dr Thiart of that practice complaining of pain in both shoulders. The doctor noted that the ultrasound examination had confirmed bilateral bursitis. The plaintiff was keen to have a cortisone injection. The doctor administered that injection.

On 6 August 2010 the plaintiff again attended Dr Thiart at that practice reporting that his right shoulder was 'good' and that his left shoulder had been 'good' for a few days but had begun to hurt again after he picked up a tool box. The doctor advised that it was too soon for another cortisone injection and instead recommended Celebrex, which he prescribed.
On 26 August 2010 the plaintiff again attended Dr Thiart at that practice reporting that both shoulders were painful again and that the pain was disturbing his sleep. The plaintiff wanted another cortisone injection. The doctor obliged with injections in both shoulders.
On 7 October 2010 the plaintiff attended upon Dr Jamil Khan of the Maddington Village General Practice complaining of right shoulder pain. He said that he was experiencing pain despite having had a cortisone injection. The doctor recorded a restricted range of movement in all directions and ordered an ultrasound examination. He prescribed Voltaren and Tramadol.
On 12 October 2010 the plaintiff attended a registered nurse, Tracey Chandler, at that practice. The main topic of discussion appears to have been the plaintiff's failed attempts to give up cigarette smoking.
On 20 October 2010 the plaintiff again attended nurse Chandler at that practice. The plaintiff had attended Swan Districts Hospital on the previous evening suffering chest pains. He had been lifting boxes while moving house. He had discharged himself from that hospital at 1.00 am that morning. The nurse requested the pathology results from Swan Districts Hospital.
On 12 November 2010 the plaintiff returned to see Dr Jamil Khan at that practice complaining of pain and a restricted range of movement in both shoulders. The doctor suspected sub-acromial bursitis on both sides. Haematuria was again of concern. There was also mention of a cyst related to the kidneys or the liver. The doctor ordered an ultrasound examination of both shoulders and of the abdomen.
On 7 December 2010 the plaintiff attended Dr Ali Hussain at the Rockingham Medical Centre. He complained to the doctor of pain in both shoulders over the preceding two years, informing that he had been under the care of a general practitioner at the Maddington Village General Practice. Dr Hussain conducted an examination and noted that the plaintiff had limited movement in both shoulders to the extent of 50% of the normal range. Dr Hussain ordered an ultrasound examination of both shoulders and a cortisone injection along with medication.
On 13 December 2010 the plaintiff again attended Dr Hussain who noted that he had responded well to the cortisone injection of the right shoulder and gave the plaintiff a referral for a cortisone injection to the left shoulder. He did so, as he recorded, for sub‑acromial bursitis.
On 17 December 2010 the plaintiff attended the Perth Radiological Clinic at Gosnells for an ultrasound-guided cortisone injection to the left shoulder. A report was forwarded to the general practitioner, Dr Ali Hussain of the Rockingham medical Centre.
On 6 January 2011 the plaintiff again attended Dr Hussain at that practice reporting that his shoulder problem had improved. He did complain of low back pain. The doctor requested diagnostic imaging by x-ray of the lumbo‑sacral spine and blood tests. On that day the plaintiff underwent an x-ray of the lumbar spine. The radiologist reported to Dr Hussain that there was a satisfactory alignment of the lumbar spine with mild spondylosis and degenerative changes in the lower facet joints. There were no fractures and disc spaces appeared normal.
The X-ray results were discussed at a further consultation with Dr Hussain on 13 January 2011. There was discussion about the possible onset of diabetes. The doctor gave the plaintiff dietary advice, prescribed Celebrex, ordered a further blood test and recommended walking in a swimming pool.
On 19 January 2011 the plaintiff again attended Dr Hussain at that practice. The concern was that the plaintiff was on the borderline for a diagnosis of non-insulin-dependent diabetes mellitus. Again he was given dietary advice. He was prescribed Diabex XR, a medication used in the treatment of type 2 diabetes. An appointment was made for a review in six weeks.
On 23 February 2011 Dr Hussain recorded that the plaintiff was doing well with the medications prescribed. Further blood tests were requested.
On 26 February 2011 the plaintiff consulted Dr Hussain at that practice about the medical requirements relating to the planned restoration of his driver's licence.
On 12 March 2011 the plaintiff again consulted Dr Hussain at that practice complaining of persistent back pain. The doctor noted that there was no neurological deficit. The Celebrex, he was told, had proved ineffective. The plaintiff had stopped taking it. The doctor prescribed Tramal SR 200 and Voltaren Emulgel and ordered a CT scan of the lumbar spine.
On 17 March 2011 the plaintiff was subject to a CT scan of the lumbar spine because of reported back pain. The radiologist reported to Dr Hussain that there was a satisfactory alignment of the lumbar spine with mild spondylosis. There were no compression fractures.
The results of the CT scan were discussed with the plaintiff at a consultation on 21 March 2011. The doctor advised weight reduction and exercise and provided another prescription for Tramal SR 100.
On 22 June 2011 the plaintiff attended Dr Ali Hussain of that practice. The purpose of the consultation is not clear but it appears to have been related to the plaintiff's work commitments. The doctor provided a medical certificate relating to the plaintiff's medication.
On 31 August 2011 the plaintiff attended Dr Yoshi Inoue at the Read Street Medical Centre in Rockingham. The plaintiff gave a history of having had back pain 'for a long time'. Upon examination he was found to be tender. Acupuncture was recommended. On 29 September 2011 the doctor recorded that the plaintiff had had acupuncture to good effect but was still experiencing low back pain. The plaintiff attended Dr Inoue again on 3 December 2012 and 31 January 2013, complaining on each occasion of thoracic back pain and of left elbow pain on the last occasion. As to the latter the doctor recorded left epicondylitis or tennis elbow.
On 28 August 2012 the plaintiff undertook a medical assessment for work with Macmahon Contractors. The report is exhibit 20. He was noted to have a full range of movement of the spine, the shoulders, the upper limbs and the elbows. The doctor who conducted the assessment was of the opinion that the plaintiff was fit for work as a serviceman.
The first motor vehicle accident, the subject of the plaintiff's claim, occurred on 10 May 2013. In evidence-in-chief he was asked by his counsel as to his physical condition prior to it. He replied that he was 'fine'. He was asked whether he had experienced any aches and pains or problems of that nature. He replied that there had been, two or three years before, but those problems had been resolved. He had not experienced aches and pains prior to the accident. He said that, at the time, he had been looking for work, that he was fit for work at that stage and there was nothing that would have stopped him from working as a serviceman.
The plaintiff was asked, also in evidence-in-chief, as to the problems that he was having in the wake of the first accident and prior to the second accident. He replied that he had pain in his left shoulder and back. He also complained of headaches. His wrist had been painful but was getting better. His various abrasions and cuts had healed.
Deborah Craig, when asked about the plaintiff's health prior to the first accident, said that he was 'pretty healthy'. She said that he had experienced back pain and had cortisone injections for that problem. She said:
So - and that seemed to be all he needed. And his health wise he's been good, in fact I'm type 2 diabetic, and he's – he's healthy as anything, like, I couldn't believe it. So his health wise, he's good, physical he's had – you know, he's always enjoyed physical work. And the gardens, fixing cars, wandering - walking around and helping friends and stuff. So yeah, he's – he's been fine with that.
It is clear from the records of the various general practitioners consulted by the plaintiff in the years prior to the first motor vehicle accident that he complained of shoulder and/or back pain from the middle of 2010 until January 2013. He had the first ultra-sound examination of his shoulders in June 2010 and a cortisone injection to the shoulder in the following month. There followed a number of cortisone injections. In March 2011 he underwent a CT scan of the lumbar spine.

The plaintiff's activities between the two motor vehicle accidents

Within weeks of the first motor vehicle accident the plaintiff had sought legal advice as to his situation. His solicitors wrote, on 17 June 2013, to Dr Inoue of the Read Street Medical Centre at Rockingham requesting a medical report. In response Dr Inoue wrote on 20 June 2013 (exhibit 27B) advising that the plaintiff had attended his surgery on 30 May 2013 and informed as to his accident on 10 May 2013 and subsequent hospitalisation. The doctor reported that the plaintiff told him that he had suffered as a result, a fracture of the right wrist, left wrist pain, grazes to the left knee and both elbows and low back pain.
Dr Inoue was asked as to the nature of the plaintiff's complaints during that consultation. He replied:
When Mr Hurley attended on 30 May 2013 his right wrist was in plaster. The nature of his complaints included pain of the bilateral left wrist, mild pain of the left knee and bilateral elbow, and low back pain.
The doctor thought that the low back pain was an aggravation of a pre‑existing injury. The plaintiff requested a Centrelink medical certificate as he was unable to work. Dr Inoue completed a medical certificate certifying that the plaintiff was unfit for work from 10 May 2013 to 22 June 2013, inclusive.
In evidence-in-chief the plaintiff said that he did not go back to work. He did apply for a job as a trade's assistant but was not successful, failing the medical test. The date of his application is unknown. He said that his life at home was restricted. Deborah Craig, his partner, said that he had difficulty cooking, showering and cleaning. She said that previously he had always enjoyed physical work. There was, as the result of the first motor vehicle accident, a period of inactivity. Ms Craig complained that when she got home from work things which might otherwise have been done around the house were not done. She was doing most of the domestic tasks and had to arrange for a contractor to help with the gardening. In addition, she had the burden of having to drive the plaintiff to and from appointments with a physiotherapist and to attend an outpatient's clinic at Sir Charles Gairdner Hospital. The extra load on her and the plaintiff's frustration at his inactivity led to tensions between them. The plaintiff said that they separated during that period. Ms Craig said that they 'remained friends'.
The plaintiff said that he arranged for his motorcycle to be repaired and was able to resume riding it. I find that he resumed riding his motorcycle in August 2013.

Events in 2014 and 2015

It is the case that the plaintiff, following the second motor vehicle accident, again got frustrated with inactivity and being at home. The Harley Davidson motorcycle had been damaged to the point where it was, he said, sold as a wreck. The plaintiff said that he had a friend by the name of Shane Lehman who ran a business by the name of 'Chip It WA'. Both he and Shane Lehman were, he said in evidence, fellow members of the Bandidos motorcycle gang. Shane Lehman asked him to help out in the running of that business. The plaintiff agreed to do so. The business premises comprised a shopfront office and an adjacent workshop. The shopfront office was to be open from 8.30 am ‑ 5.00 pm Monday to Friday.
The plaintiff said that his duties included opening the business at 8.30 am and closing the premises at the end of the day. He said that on most days he was able to leave by about 4.30 pm. He wore a 'Chip It' shirt with an appropriate logo. His duties included answering the telephone and dealing with enquiries about the product. It seems that the product was a computer chip contained within a module that could be installed in the engine bay of motor vehicles with diesel engines, the benefit said to be improved engine performance. It seems likely that Shane Lehman or entities associated with him held a 'Chip It' franchise.
The plaintiff was not paid a salary or wage for his work at Chip It. He wanted, at the time, to work on and restore a couple of his motor vehicles. He had four, an ED model Ford, a Toyota Landcruiser, a Holden Rodeo utility and a Ford F100 utility. He had been working on the Ford utility and was looking to sell it. Shane Lehman allowed him to keep those vehicles, or some of them, at the Chip It workshop. That was convenient because, said the plaintiff, he had been working on the Holden and wanted to continue to do so.
The plaintiff explained in evidence-in-chief that another friend had attended the Chip It workshop and built an aluminium flatbed tray for the Holden. That had to be fixed to the vehicle's chassis. The plaintiff was then going to lay a polished wood floor on the tray. When the work was complete the vehicle would be sold.
It is the case that from 4 February 2014, unbeknown to the plaintiff, he was kept under intermittent covert surveillance and was filmed from time to time. The footage recorded was edited and, in part, played at trial. Two DVDs comprising video surveillance footage became exhibit 34A and exhibit 34B. Notes summarizing that footage became exhibit 35. No issue was taken with the accuracy of the notes at trial.
The surveillance footage tends to confirm that the plaintiff was regularly attending the Chip It premises, opening it for business at about 8.30 am each week day and closing the premises at about 4.30 pm each day. He was able to come and go from time to time during the day and was seen to attend a bank and a shopping centre for brief periods, each time returning to the Chip It premises. He drove a motor vehicle to and from the premises each day.
The plaintiff explained that a parent business called 'Chip It Australia' went into insolvency in May 2014 and that 'Chip It WA' followed suit. The notes to the surveillance footage indicate that on 19 May 2014, late in the afternoon, the surveillance operative returned to the Chip It premises and noted that advertising and signage on the front door and windows had been removed. Enquiries with a neighbouring business suggested that Chip It had ceased operation.
According to the plaintiff, following the closure of Chip It, Shane Lehman purchased a tilt tray towing truck. He explained that Mr Lehman would seek out old cars on eBay and other internet sites and would offer to purchase them for a few hundred dollars on the basis that he would pick the vehicle up with the tilt tray truck and take it to a scrapyard.
In cross-examination the plaintiff was asked about answers he provided to interrogatories administered by the defendants. The answers were provided and verified by affidavit sworn 10 December 2014. He was asked in interrogatory 17:
Since the first accident, have you worked:
(a)as a Serviceman servicing vehicles or machines;
(b)in any other capacity?
The plaintiff replied 'No' and 'Yes', respectively, to those questions. Elaborating upon the latter he referred only to a job at Norblast.
He was asked in interrogatory 21:
Since the first accident, have you engaged in any work for which you did not receive payment? If yes, describe the nature of the work you carried out, the periods over which you performed the work and for whom you worked.
The plaintiff replied 'No' to that question.
When pressed in cross-examination as to those answers, the plaintiff said that he had never worked for Shane Lehman on his tow truck. When asked whether he had worked for Shane Lehman without payment he replied: 'No, I was helping someone out'. When asked about his work at 'Chip It' he said:
To me, if you say work, that means I'm employed. I was never employed by Shane.
It is the case that, in the course of his evidence, the plaintiff repeatedly drew his own distinction between work and 'helping out a mate' as though the two were mutually exclusive. So it was that in the case of Chip It and the tow truck business, the mate helped out was Shane Lehman. The plaintiff said that he drove the tipper tray truck and picked up old cars purchased by Shane Lehman. He would drive the truck to the location of the vehicle to be moved, winch it onto the tray of the truck, take it to a scrap yard and tip it from the tray. He did not seek payment for and was not paid for that work.
The plaintiff first saw Mr Robinson, orthopaedic surgeon, on 2 February 2014. On 4 and 5 February 2014 he worked at Chip It. Mr Robinson saw the plaintiff as an inpatient at Waikiki Hospital on 6, 8, 12, 15 and 19 February. By 25 February the plaintiff had recommenced work at Chip It. Mr Robinson saw the plaintiff at his consulting rooms on 9 April, 1 and 15 May. The Chip It work was then coming to an end. He saw him again at his rooms on 30 June, 21 July and 21 August 2014. On 30 June 2014 the plaintiff had been working at Norblast for a couple of weeks.
On 10 March 2014 Mr Robinson, orthopaedic surgeon, reported to Dr Eoin McDonnell, a general practitioner at the Port Kennedy General Practice, that the plaintiff's wound had healed and that he was having dressings twice a week. That was a reference to the laceration injury to the left lower leg. On 9 April 2014 he reported that the injury had 'completely healed'. Mr Robinson, on that occasion, noted that the plaintiff had complained of ongoing left knee pain. On 1 May 2014 he again reported to the effect that an MRI scan of the left knee revealed a torn anterior cruciate ligament and some tearing of the medial collateral ligament. He also noted that the plaintiff complained of impingement and freezing of the left shoulder. He thought a further MRI scan of that shoulder should be carried out. On 15 May 2014 he reported that the scan revealed osteoarthritis of the acromioclavicular joint, a rotator cuff tear, biceps tendinopathy and a SLAP lesion indicating 'possible instability of the left shoulder'. He indicated that the plaintiff should consult a shoulder surgeon.
Perhaps in consequence of that recommendation the plaintiff attended upon Mr Satyen Gohil, an orthopaedic surgeon at the Waikiki Specialist Centre, on 19 May 2014. He told Mr Gohil that he had been unable to work since March 2013. Mr Gohil reported to Mr Robinson on 19 May 2014 that the plaintiff presented, clinically, with a frozen and osteoarthritic left shoulder.
Following the closure of Chip It the plaintiff obtained work in June 2014 with Norblast Industrial Solutions of Bibra Lake. That business specialised in corrosion control and engaged in sandblasting and scaffolding hire. The plaintiff's friend, Shane Lehman, who was the scaffolding manager, arranged the job for him. He began work on about 9 June 2014. In the weeks ended 18 and 25 June 2014 he worked 38 1/2 hours and 44 hours, respectively. His annual salary was $59,280.
On 27 June 2014 Mr Satyen Gohil certified that the plaintiff was fit for light duties from 9 June 2014, noting that his shoulder was 'vastly improved'.
The plaintiff, in his employment with Norblast, was predominantly driving trucks and forklifts. He also operated an elevated work platform. He said that, while working for Norblast he had problems with his back and shoulder and, to a lesser degree, his left knee. He told his employer that he was about to have surgery on his knee. His employment was terminated with effect from 18 July 2014.

On 24 July 2014 Mr Robinson carried out a left knee arthroscopy, debridement of the anterior cruciate stump and a chondroplasty of the patella and the medial femoral condyle. Mr Robinson reported that the plaintiff had, since that procedure, been undergoing physiotherapy 'and his own exercises'. On 21 August 2014 he further reported that the plaintiff was making 'reasonable progress' and that the exercise programme should continue.
By letter of 31 July 2014 the plaintiff's solicitors wrote to Mr Robinson seeking a report as to the plaintiff's abilities and fitness for work following his two motor vehicle accidents. That letter made no mention of the plaintiff's work with either 'Chip It' or Norblast. By letter of 22 August 2014 Mr Robinson provided a comprehensive and lengthy report to the plaintiff's solicitors. That report made no mention of the plaintiff's work with either 'Chip It' or Norblast. In fact, in August 2014 the plaintiff told Mr Robinson that he could undertake some domestic tasks such as sweeping, mopping and vacuuming but experienced pain when doing so. Mr Robinson commented that 'based on the history of pain and limited range of movement I do not think Mr Hurley would have been able to work part-time in any modified capacity'.
On 22 October 2014 Mr Robinson reported to Dr McDonnell that the plaintiff was 'making good progress' and that he remained unfit for work. On 30 October 2014 the surveillance material depicts the plaintiff leaving his home early in the morning and travelling to 83 Banksia Road, Wellard. There he left his vehicle and drove away in a white tilt tray truck. He returned to his home in that vehicle, stopping to get fuel along the way. Just before 10.00 am the plaintiff left his home in that vehicle and drove to an address in Wattle Grove. There he loaded a purple Hyundai sedan onto the tilt tray and drove to Premier Car Removals in Welshpool. I infer that the Hyundai sedan was unloaded there.
On 20 January 2015 the plaintiff's solicitors again wrote to Mr Robinson seeking a further report. In that letter Mr Robinson was advised:
We understand that Bill has not been employed since the first MVA.
It is clear that, at the time of writing, the plaintiff's solicitors were aware that their client had been under surveillance from time to time from early 2014. They did not have a copy of the surveillance material and had not viewed it.
Mr Robinson replied by letter of 9 February 2015. He advised that the plaintiff had told him of problems described as 'frozen left shoulder' in 2008 or 2009. Following three steroid injections the condition settled after two months. The evidence suggests that in 2010 and in the first half of 2011 the plaintiff attended a number of general practitioners and complained of pain in both shoulders. During that period he had a number of cortisone injections to both shoulders.
As mentioned earlier, on 7 December 2010 the plaintiff attended Dr Ali Hussain at the Rockingham Medical Centre complaining of pain in both shoulders over the preceding two years. Dr Hussain conducted an examination and noted that the plaintiff had limited movement in both shoulders to the extent of 50% of the normal range. He ordered an ultrasound examination.
In mid-2014 Mr Robinson had noted that, upon examination, the plaintiff had an overall restricted range of movement in the left shoulder of 50%. That was, he said, due to bursitis. He attributed the 'frozen shoulder' to a conglomeration of conditions which he linked to the two motor vehicle accidents but, most probably, the first more than the second. His conclusion as to causation and movement restriction at the time was in part reliant upon the plaintiff, in terms of his reports as to what he could and could not do and as to his past problems with shoulder pain and treatment.
At the request of the plaintiff's solicitors, he was examined again by Mr Robinson on 27 October 2015. On that day he wrote to the plaintiff's solicitors. He said that on that occasion the plaintiff complained of intermittent pain in the outer aspect of the left shoulder and a weakness of grip and numbness associated with a scar. The latter was diminishing.
Curiously, Mr Robinson stated:
Prior to the first motorbike accident in May 2013 Mr Hurley did not have any problems with his left shoulder.
That is quite contrary to the information provided to him by the plaintiff and reported to the plaintiff's solicitors in his letter of 9 February 2015.
The plaintiff told Mr Robinson that, subsequent to the second motor vehicle accident, he had only ridden his motorcycle on one occasion. That does appear to be contrary to the plaintiff's evidence to the effect that it had been damaged to the point where it was sold as a wreck.
The gist of the plaintiff's information to Mr Robinson on 27 October 2015 was to the effect that his left shoulder pain was still intermittent but diminished in intensity since his attendance upon Mr Robinson in August 2014. Specifically, he informed that:
(a)he had returned to work some two or three weeks prior and had been carrying out general light labouring work, including driving a bobcat and a truck, for 30 hours per week;
(b)he could mow lawns but with increased pain in the left shoulder;
(c)he had been unable to play golf;
(d)he could undertake sweeping and washing at home but only with increased pain;
(e)he was unable to do any cooking;
(f)he could only drive for 90 minutes before his left shoulder became painful;
(g)he occasionally had difficulty dressing himself by reason of his left shoulder pain;
(h)he could walk for only 45 ‑ 60 minutes; and
(i)he could sit for only one hour.
The plaintiff told Mr Robinson that, in consequence of his pain and disabilities, his wife was required to undertake extra household tasks for up to two hours per week.
At the conclusion of his report Mr Robinson ventured a diagnosis of facet joint inflammation of the lower lumber spine on both sides and recommended settlement of the plaintiff's claim and a supervised exercise programme over a period of six months.
The plaintiff was referred by Mr Robinson for an X-ray and ultrasound examination of the left shoulder. That took place on 9 November 2015. The former revealed some age-related degenerative change in the acromioclavicular joint, a normal glenohumeral joint and normal bone, joint and soft tissue.
The ultrasound revealed no evidence of any significant partial or full‑thickness tear in the supraspinatus tendon which had normal ultrasound texture. There was some tendinopathic change in the infraspinatus tendon without any focal tear. There was some degenerative change at the superficial margin of the acromioclavicular joint with moderate thickening in the sub‑acromial bursa.
It is the case that Mr Robinson viewed the surveillance films on 8 December 2015. In a letter of 10 December 2015 directed to the plaintiff's solicitors he provided his own description of the plaintiff's activities as seen on that film with particular reference to range of movement. Following lengthy description and under the heading 'Summary' Mr Robinson reported:
During the surveillance film Mr Hurley was seen to do the following significant activities:
1.Use the left arm to fully lift a vehicle bonnet to 120°.
2.The patient is seen flexing his back to 90° to pick up something on the ground.
3.Mr Hurley repetitively works through a window of a vehicle standing on a crate. The patient flexes his back up to 90° on a number of occasions.
4.The patient is seen repeatedly cleaning the chassis of the small truck using both hands. Mr Hurley protrudes his left shoulder to 90° on six occasions. He also flexes his back to 90° on a number of occasions.
5.On two occasions the patient is seen loading a truck onto the tray of his own tow truck. On one occasion he is seen lying prone on the truck with flexion of his left shoulder to 180° for a period of 25 seconds.
6.On other occasions Mr Hurley is seen pulling hard on some retaining straps without significant discomfort.
Based on the surveillance film I believe Mr Hurley is fit to work as a tow truck operator and as a mechanic.
Once more I believe Mr Hurley's claim can be finalised. I do not think any further treatment is indicated. Thus I do not think a supervised exercise programme would be beneficial.
In cross‑examination of Mr Robinson, having read to him passages from his final letter to the plaintiff's solicitors, counsel for the defendants asked him whether he had, following his viewing of the surveillance material, changed his opinion entirely. Mr Robinson agreed that he had. He agreed that there was a stark contrast between the plaintiff's presentation to him in his rooms and what was seen on the surveillance film. He agreed that what was seen on the film was not consistent with the examinations carried out by him.

Reports and evidence of non‑treating medical practitioners

Barrie Stephen Slinger

The plaintiff's solicitors referred him to Barrie Stephen Slinger requesting, in a letter of 20 January 2015, a comprehensive report on the plaintiff's abilities and condition. Mr Slinger is an experienced and qualified orthopaedic surgeon. He provided a report of 17 March 2015. He reviewed the plaintiff on 11 March 2015.
His report, under the heading 'Employment' included:
Following the first motor vehicle accident he was away from employment. In June 2014 he returned to employment with Norblast, which involved driving a forklift, light truck and some manual labour, continuing for six weeks, following which he had his knee procedure then his employer indicated that no further work was available, and he has not returned to work since.
In respect to the future, he is not keen to the type of work which his vocational assessment has recommended, such as picking parts or light storeperson, but believes that he has sufficient experience on large vehicles to have the expertise and knowledge to act as a trainer/assessor, teaching appropriate servicing of vehicles.
It is the case that, when the plaintiff's solicitors sought the opinion of Mr Slinger, they were aware of the existence of video surveillance film but had not seen it. Mr Slinger was asked hypothetical questions based on what the film might disclose. Not surprisingly, he indicated an unwillingness to comment on such hypotheses.
On 17 September 2015 the plaintiff's solicitors wrote again to Mr Slinger providing him with the surveillance material. In doing so they informed:
We understand that the films have been shown to Dr Silbert, Dr Phillips and Dr Carrivick. Allegedly some of those doctors subsequently reported that Bill is now fit for full‑time unrestricted work. We have not seen a copy of those reports. Notwithstanding that we would appreciate your opinion as to what you see in the films.
It is the case that the recordings provided to Mr Slinger were corrupted in some technical way such that he was unable to view the entirety of the material. He reported that to be so on 30 September 2015 and expressed some tentative opinions in that context.
By a letter of 28 October 2015 the plaintiff's solicitors again forwarded recordings to him along with copies of the reports of Dr Carrivick, Dr Phillips and Dr Silbert. Again, the plaintiff's solicitors requested a further report.
By a letter of 23 November 2015 Mr Slinger advised, having completed a consultation with the plaintiff on 2 November 2015, that the plaintiff's symptoms, as reported by him had improved. In particular he reported that movements of the shoulder had improved, symptoms at the knee were minimal and that he had continued weakness in his right wrist. There had been a recent diagnosis of arthritis of the spine based on a CT scan.
Mr Slinger reported that there was no obvious restriction of movement disclosed in the plaintiff's activities in the surveillance material. He appeared, he reported, to be able to bend, to lift, to move his neck and shoulders without any restriction.
In conclusion Mr Slinger reported:
The surveillance DVD does not change my opinion on his capacity to return to work, as I have detailed in my previous report, specifically, I believe he is not fit to return to work on a full‑time basis without restriction, as a heavy duty serviceman on a mine site on a fly‑in fly‑out basis.
I believe he is capable of returning to lighter work such as tipper truck driver, truck driver, forklift operator, retail sales, shop assistant, spare parts interpreter, light storeperson, clerk in a spare parts outlet or a tow truck operator. I believe he is capable of a graduated return to work and capable of achieving full‑time hours.
In cross‑examination Mr Slinger confirmed that, in examining the plaintiff, he had measured grip strength using a dynamometer. In consequence he recorded grip strength in the right hand of 25 kg and in the left hand of 39 kg. Counsel for the defendants put to Mr Slinger that his vocational assessment of the plaintiff, having undertaken dynamometer testing, produced results with the left hand in three attempts of 35 kg, 37 kg and 39 kg and with the right hand with three attempts of 8 kg, 8 kg and 8 kg. That testing was carried out on 12 November 2015. Referring to the obvious disparity in results with the right hand Mr Slinger was asked for an explanation. He replied 'suggested he's not making an active effort'. Those disparate results were within weeks of one another.
It is clear that Mr Slinger had watched a selection of the surveillance material rather than the entirety of it. Counsel for the defendants suggested to him in cross‑examination that the material showed the plaintiff exercising a 'fairly good range of movement of both shoulders'. Mr Slinger commented that he did not see the plaintiff raise his shoulder above 90 degrees. Counsel put to him that that might be because he had viewed only what counsel described as 'the summary'. Mr Slinger agreed.
Counsel for the defendants put to Mr Slinger that a viewing of the surveillance material suggested that the plaintiff did not appear to have any restricted range of movement. He explained, in reply, the difference between watching a recording of somebody moving freely, ignorant of surveillance and measuring range of movement in the context of a clinical examination. He said:
All I am saying there is, your Honour, that I couldn't say there was any obvious restriction on the activities that he was performing. He did what I just said without any apparent restriction. Now, whether he had a full range of movement in his cervical spine, shoulders and the rest of his body, I couldn't say. All I can say is, on the activities he performed, there wasn't any obvious restriction. There is a difference. I have explained that.
In re‑examination Mr Slinger explained that the dynamometer is a simple device that requires the cooperation of the person being examined. Ordinarily that person is required to squeeze the device, as strongly as he or she can, momentarily and let go. Normally the test is done three times with the first being the strongest because of the exertion involved. Ordinarily, the second and third will be weaker. In that context, Mr Slinger explained, there is no explanation for a result of 8 kg on each of the three tests conducted on the plaintiff's right hand other than that proffered by him in cross‑examination to the effect that the plaintiff wasn't trying. Alternatively, he ventured, the plaintiff might have been trying to impress the examiner with the weakness of his hand or with his symptoms in that hand.
I asked Mr Slinger whether the result with the right hand suggested that the plaintiff would barely have squeezed the device at all and he replied 'yes exactly'.

Fredrick Jurgen Phillips

The defendants' solicitors required the plaintiff to attend upon Fredrick Jurgen Phillips, a consultant orthopaedic surgeon, who gave evidence at trial by video‑link from Tokyo in Japan. He had conducted a clinical assessment of the plaintiff on 3 November 2014. In doing so, he took a history from the plaintiff and examined him.
The plaintiff complained of a lot of pain in the left shoulder. Mr Phillips noted marked restriction in the range of movement in that shoulder.
The plaintiff complained to him of a stiff low back, of reduced movement and strength in the right wrist and episodes of instability of the left knee. The plaintiff informed Mr Phillips that he was not allowed to work, Dr Robinson having certified him in relation to his left shoulder and knee. He told Mr Phillips that at home he did not undertake any duties, relying on a friend to assist him.
The plaintiff told Mr Phillips that he had no relevant pre-accident history. Mr Phillips reminded him of file material suggesting a fractured jaw, a fractured ankle and a cardiac arrest. The plaintiff replied that those events were years ago and not relevant.
Mr Phillips conducted an examination of the head and neck, of the upper limbs and shoulder girdles, of the back and spine and of the lower limbs. That examination was difficult because of the plaintiff's marked pain reactions to the even mild touching. Mr Phillips report:
The symptoms are in general consistent. However, the physical findings of the spine do not support a significant spinal complaint. At the left knee, I was not able to confirm instability. At the left shoulder, I was not able to confirm a frozen shoulder, only a marked pain reaction produced by even light skin touch.
His diagnosis with regard to the first accident was multiple soft tissue injuries, fractured distal right radius and wrist and internal fixation. His diagnosis with respect to the second accident was probable soft tissue injury of the left shoulder, soft tissue injury of the left calf and ligament injuries of the left knee. He reported that the plaintiff had made an excellent recovery so far as the right wrist injury was concerned, that the wound to the left calf was well healed and that he had difficulty in assessing the degree of recovery so far as the knee and left shoulder were concerned.
He concluded that there was likely to be a functional disability of the right wrist from the first accident and in the left knee in the second accident. He considered the level of disability at the wrist to be 5% ‑ 10% below the elbow and in the left lower limb at 10% ‑ 20%.
By letter of 14 December 2014 Mr Phillips wrote again to the defendant's solicitors. He had, in the interim, been provided with the report of Dr Joel Silbert, a consultant occupational physician, of 25 November 2014, a document from BHP Billiton and surveillance material in the form of visual recordings. In that brief report he said: 'I confirm that I am in agreement with Dr Silbert's conclusion that Mr Hurley is fit for his pre-accident duties.'
By letter of 16 December 2014 he wrote again providing a more elaborate report. In it he concluded that the plaintiff had made a full recovery and required no further treatment or investigation. He concluded also that the plaintiff clearly had the capacity to work full‑time in any of his pre-accident occupations. He concluded that the plaintiff did not require vocational assessment. Finally, he said 'Following video evidence there would not appear to be any functional disability in relation to the first or second accident.'
At trial Mr Phillips said, in evidence-in-chief, that the plaintiff would not allow him to fully examine his left shoulder and left knee and gave inappropriate pain responses. He added that, having watched a limited amount of the surveillance material, what he saw was not consistent with the plaintiff having a frozen left shoulder. Such a condition is often associated with severe pain and virtually no movement. His suspicion, at the time, was that the plaintiff was exaggerating his complaints.

Travel

The plaintiff makes a global claim for past travel expenses in an amount of $500. I see no reason why I should not accede to that claim. I make an award in that amount.
In summary, I assess the plaintiff's damages as follows:
General damages – first motor vehicle accident  $   9,950.00
General damages – second motor vehicle accident                $ 30,250.00
Past loss of earnings – first motor vehicle accident                $ 15,000.00
Interest on that amount (3.32 years at 3% p.a.)  $   1,550.00
Past loss of earnings – second motor vehicle accident            $ 52,000.00
Interest on that amount (2.77 years @ 3% p.a.)  $   4,442.00
Past loss of superannuation contributions (for both motor
vehicle accidents)  $ 7,390.00
Interest on that amount (3.32 years @ 3% p.a.)  $     736.00
Past gratuitous services (both motor vehicle accidents)          $ 12,240.00
Past medical expenses  $   1,051.20
Future medical expenses   $   1,000.00
Past travel expenses  $     500.00
$136,109.20