JAHROMI v Scates - [2003] WADC 139

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: JAHROMI -v- SCATES [2003] WADC 139

CORAM: VIOL DCJ

HEARD: 11-13 MARCH 2003

DELIVERED : 20 JUNE 2003

FILE NO/S: CIV 2501 of 2001

BETWEEN: SEYED SAED SHAYGAN JAHROMI
Plaintiff
AND
ALLISON JUNE SCATES
Defendant

Catchwords:

Motor vehicle accident - Liability and damages in issue - Whether plaintiff suffered bowel incontinence as a result of accident - Claims for loss of earnings and earning capacity - Turns on own facts

Legislation:

Motor Vehicle (Third Party Insurance) Amendment Act 1994

Result:

Accident due to plaintiff's negligence
Defendant not negligent
Claim for damages dismissed
Provisional assessment of damages - no damages awarded

Representation:

Counsel:

Plaintiff: Mr D R Clyne
Defendant: Mr J R Brooksby

Solicitors:

Plaintiff: Simon Walters
Defendant: Greenland Brooksby

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

Derrick v Cheung (2001) 181 ALR 301
Earl v Stevensen [2000] WASCA 159
Minshull v Pecorari [1968] WAR 59
South Australian Ambulance Transport Inc v Walheim (1948) 77 CLR 215

Case(s) also cited:

Cameron v Sullivan [1962] QWN 32
French v State of New South Wales [1999] NSWCA 175
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Medlin v State Government Insurance Commission (1995) 182 CLR 1

VIOL DCJ: The plaintiff was born on 23 July 1957 and is now almost 46 years of age. He was born in Iran. At all material times his training was that of a physical education teacher.
The plaintiff was involved in a motor vehicle accident on 4 June 2000 when the rear of his vehicle came into contact with the front of a vehicle driven by the defendant. The accident took place at the intersection of Canning Highway and Riseley Street, Applecross.
The plaintiff has alleged that the accident was caused by the negligent driving of the defendant. The particulars of negligence are as follows:
"Particulars of Negligence
The Defendant was negligent in:
(a)failing to keep any or any proper lookout;
(b)failing to drive with any or any proper control;
(c)driving at a speed which was excessive in all the circumstances;
(d)failing to brake in time to avoid the collision at all; and
(e)failed to steer or control the motor vehicle so as to avoid the collision."
The plaintiff, in short, alleges that he was stationary at the intersection waiting for the lights in front of him to turn green, when the defendant's vehicle drove into the rear of his vehicle.
The defendant, on the other hand, has denied any negligence on her part and has pleaded that the accident was caused by the plaintiff's negligent manner of driving in that he reversed his vehicle along Canning Highway and towards the defendant's vehicle, the defendant, as a result, being unable to avoid a collision with the rear of the plaintiff's vehicle.
The plaintiff has claimed damages for injuries he alleges to have occurred to his thoracic and lumbar spines, with certain residual difficulties. These are set out in par 4(a) to par 4(i) of the statement of claim as follows:
"(a)pain, stiffness and tenderness of the lower back;
(b)limitation of movements of the back;
(c)headaches and discomfort together with sleep disturbance;
(d)spasms in the lower legs;
(e)loss of control of the bowel and incontinence;
(f)heart palpitations;
(g)blurred vision;
(h)weakness in the left upper arm; and
(i)depression and anxiety."
The plaintiff has made a variety of other claims including medical expenses and future physiotherapy and medication. It is said also that the plaintiff has suffered, and will continue to suffer, a partial disability of the lumbar spine which, he said, produces pain and stiffness and tenderness of the back, limitation of movement to the back, headaches and discomfort, together with sleep disturbance.
It is the case that the plaintiff was suffering from multiple sclerosis before the accident.
The main symptoms, of which the plaintiff now complains, are "loss of control of his bowel and incontinence". The plaintiff has said that this arises as a result of the motor vehicle accident and is not a result of, or connected with, the multiple sclerosis.
The plaintiff has claimed loss of earnings and loss of future earning capacity. It is accepted that the plaintiff was, prior to trial, unable to obtain employment; however the plaintiff says that his bowel problem prevents him from accepting a position as a physical education teacher, and that such inability will cause him to have a diminished perimeter of employment in the future. In his opening, the plaintiff's counsel based the plaintiff's case, in this regard, effectively on the loss of a chance of future employment as a physical education teacher. The plaintiff has also claimed loss of superannuation benefits.
The various claims made by the plaintiff have been denied by the defendant, who also says that if the plaintiff suffers from any of the disabilities pleaded, these are the result of the plaintiff's longstanding condition of multiple sclerosis which has been extensively investigated and treated.
Thus, the main issues to be determined were as follows:
1.The cause of the accident.
2.Whether any disabilities and/or injuries caused to the plaintiff as a result of the accident.
3.The sequelae of any such injuries and/or disabilities including their effect upon the plaintiff's employability.
4.The significance and effect of the plaintiff's pre‑existing condition of multiple sclerosis.
The plaintiff was born in Iran and schooled there until, ultimately, obtaining a university degree in physical education in approximately 1985. For short periods, the plaintiff worked as an "accounting businessman". Otherwise, until 1988, the plaintiff worked as a physical education teacher, he and his wife then moving to New Zealand, mainly because of the Iran/Iraq war. His qualification was ultimately recognised in New Zealand in 1991, however, at no time was he able to obtain work as a physical education teacher. He worked as a cabinet maker for three years and, for a short time, as a taxi driver, which latter job he ceased after having being assaulted in the course of that work.
Whilst he was in New Zealand, he was diagnosed as suffering from multiple sclerosis and had significant symptoms from time to time, although there were occasions when the symptoms abated. He and his wife went back to Iran in June/July 1997 and he found work as a clerk for several months. They returned to Australia in 1998 and lived, for short times, in Melbourne, Brisbane and Sydney. They ultimately came to Perth in August 1999 because the warmer weather in Perth was more suitable and compatible with his condition. Once again, the plaintiff was unable to find any work as a physical education teacher whilst in the Eastern States where, for a short time, he worked as a cuisine courier. It is significant that he could not find the work he sought, even with the assistance of the Commonwealth Rehabilitation Services. He had several medical specialists looking after his multiple sclerosis condition. It is a reasonable conclusion to draw from the evidence that, by the time the plaintiff reached Perth, he had been unable to find employment in his chosen profession - this was most probably as the result of a combination of his multiple sclerosis, his lack of training in Australia and associated reasons. Having arrived in Western Australia, the plaintiff obtained some brochures about the possibility of work as a physical education teacher with the Education Department in remote areas, however, once again, the plaintiff was unable to find any such work.
On the day of the accident, the plaintiff was driving in a westerly direction along Canning Highway and, as he reached the intersection of Riseley Street, there was an amber light facing him. He applied his brakes as soon as he saw this and stopped behind the white line. He then said there was a "huge" smash from behind which forced him into the middle of the intersection. He was pushed forward and then back, and a part of his seat (which moves backwards and forwards from the top), was broken. He "wet himself" in his shorts - he apparently meant that his bowels became incontinent at that immediate moment. He then managed to move his car, which was blocking the traffic, and he backed his car behind another vehicle. He spoke to the defendant who said, according to the plaintiff, that she was insured and he "needn't worry about it". He was keen to have the police involved and obtained her motor driver's licence and other details. He agreed that he had held her licence in an attempt to arrange for the police to attend. A couple, the Reids, offered to give their names and details as witnesses. He pulled the fender off his tyres and managed to drive his vehicle home after reporting the matter to the Fremantle Police Station. Photos of his vehicle were tendered, Exhibit F, which demonstrate that there was damage to the rear of the plaintiff's vehicle, although there was no report from any repairer giving precise details as to the damage to the plaintiff's vehicle and the cost of repairs thereof. There was no information as to whether the rear bumper was made of metal or plastic, and no explanation of damage shown to the middle of the left of the body of the plaintiff's motor vehicle.
The plaintiff said that, up to the time of his motor vehicle accident, he had no symptoms with his eyes or numbness in his legs - in other words, he suggested that he was bereft of significant systems relating to his multiple sclerosis up to that time. After the accident, he did have problems with his legs and shoulders, some numbness in his legs and eye problems. He confirmed that the major problem was control of his bowels and incontinence which, he said, have occurred since the accident without warning two to three times per week - he has to go to the toilet within seconds of the onset of the need to go to the toilet. This, he said, he never had before. The accident, he said, affected his sexual relationship with his wife, his ability to obtain a job, shopping, his relationship with his children and, it seems, almost every aspect of his life. He said he had soft tissue problems with his lower back, particularly if he tried to lift heavy things and, because of his bowel problem, he had depression and anxiety. He had not looked for work since the accident because of his bowel problem and his need to stay at home because of those difficulties.
In the course of cross‑examination, the plaintiff agreed that he last worked as a physical education teacher in Iran and that he had told Dr Hollingsworth that he had not been offered a job as a physical education teacher whereas, in fact, he had never made an application for such a job. He agreed that he had suffered from anxiety as a result of his multiple sclerosis condition before the accident and had always been very anxious about that condition. He agreed that he had received anti‑depressant medication in New Zealand because of this anxiety. He denied that his multiple sclerosis worsened just before the motor vehicle accident, this denial was shown ultimately to be contrary to the evidence, particularly that of Dr Kermode - he saw the plaintiff before the accident to assess the plaintiff's multiple sclerosis and noted, some 2‑1/2 months before the accident, that there had been a relapse of his condition. Having denied that he had any bowel or urinary problems arising from his multiple sclerosis prior to the accident, the plaintiff agreed that, in fact, there had been some problems in 1995.
As to the accident itself, the plaintiff said he knew there was a camera at the lights to photograph people who tried to "run" the lights ie. go through the amber and then red lights, and denied that he entered the intersection and then reversed, concerned that he would be caught by the camera. He agreed that he had told Dr Felice that the other car had been travelling at approximately 80 kilometres per hour, which was based on the damage to his vehicle. The plaintiff visited Mr and Mrs Reid to ask them to sign a statement, which statement, the plaintiff said, had been given to him by his lawyer. There was no explanation as to the basis upon which, and circumstances in which, the Reids were involved in the preparation of that document. Nor was any explanation given as to why the plaintiff took this statement to the Reids. The plaintiff denied that there was, in effect, a chase around the cars involving the defendant trying to recover her motor driver's licence from the plaintiff, although he confirmed that he had soiled himself immediately the accident occurred. As to the incontinence problem, he said that this has occurred twice a day on an average, and sometimes three to four times a day since the accident, depending upon the situation. He also spoke of manual evacuation of his bowels - there was some inconsistency in the plaintiff's evidence in this regard. He was cross‑examined as to an attendance in August 2001 at the Sir Charles Gardiner Hospital where he saw Dr Xu. A note in Dr Xu's medical notes to the effect that the plaintiff told him that he had "no bladder or bowel problem" was put to the plaintiff. He denied that he had told Dr Xu this and said that he did have such problems. In the light of the fact that the plaintiff was seeing Dr Xu, a registrar for Dr Kermode in relation to eye problems arising from the multiple sclerosis, and bearing in mind the accepted fact that bowel and urinary problems can arise in the course of a multiple sclerosis condition, I am unable to accept that Dr Xu had made the mistake suggested by the plaintiff. The plaintiff also persisted with his complaint that he had sexual problems as a result of the accident, although he had seen Mr Peter Silbert, neurologist, in June 2002, and he had recorded that the plaintiff had said that he had no such problems. He stated that he had told his general practitioner, Dr Greenham, that he had back problems as a result of the accident.
As far as the plaintiff is concerned, no treatment has helped him with his difficulties with his bowels. He persisted with his evidence that he still had lower back pain. He said that although his bowel problems were his main worry, there were money worries and other matters which were of concern to him. The plaintiff was at pains to suggest that the defendant had "run away" after the accident, however, after some cross‑examination, it was clear that, in fact, he did not persist with that suggestion - there was an element of exaggeration on the part of the plaintiff as to the activities of the defendant, in my view, in this evidence.
The plaintiff struck me as a person who was intent on playing down the effects of his multiple sclerosis on his health, his life generally, and his working ability; he appeared to be concerned to ensure that his evidence helped to establish some connection between the accident and the alleged incontinent condition and his lower back pain, which he said was continuing. He was inclined to colour his evidence in relation to the activities of the defendant and her passenger. It could not be said that the plaintiff struck me as a person who was, on the face of it, straightforward and honest.
On behalf of the plaintiff, Mr William Jack Apgar gave evidence - he is a professional forensic engineer. He produced certain photographs of the intersection and some plans which he had prepared, Exhibit H1 to Exhibit H4, showing the position of vehicles according to the various witnesses about whom he had been advised. He, in effect, supported the plaintiff's version of the events and said that if the plaintiff's car was reversing faster than the defendant's, then he would have expected the defendant's car to go backwards. He agreed, in cross‑examination, that in reaching any opinions as to speeds and the ultimate position of vehicles, there were a number of variables which had to be taken into account, including the weight, the mass of vehicles, their speed and other matters. In all the circumstances, and bearing in mind Mr Sims' report, an expert on behalf of the defendant, Mr Apgar's evidence was of little value to the plaintiff's case, in my view.
Mr Darren Lewis Reid is a plumber. His car was driving in a westerly direction towards the intersection on the relevant date. His wife was driving the vehicle, he being a passenger. They were in the inside lane and stopped behind another vehicle. The lights were orange, then red, in front of them. He heard a screech of brakes from behind and saw a white car flying past on the right hand side, hitting the defendant's vehicle which was then pushed into the intersection. He said that after the accident, he was not aware of how the defendant's vehicle moved out of the intersection - something that I found to be rather unusual. He said that the car in front of him was stationary and, as far as he was aware, before the impact, he did not see the plaintiff's car in the intersection, nor see it reverse. In fact, he did not see the plaintiff's car as they came up to the intersection, only when they were all stopped at the intersection ie. the vehicle in front, the plaintiff's car on the right hand side, and their car. He said that immediately before the accident, the plaintiff was still at the lights. Mr Reid struck me as a straightforward and honest witness, although I was rather concerned about the circumstances in which he had been given a statement by the accused himself at some time prior to the hearing. I repeat that I was not advised of the circumstances in which the statement was taken or created. Nevertheless, there did not seem to be any basis upon which, having seen and heard Mr Reid, he could be said to be other than attempting to give an honest account of what he had observed. There may have been some limitation on his ability to see exactly what was occurring to his right hand side from his position as passenger, and it is conceivable, as I later mention, that he and his wife arrived at the intersection at a time when there had already been some movement forward of the intersection on the plaintiff's part. I will comment further on this aspect in due course.
Mr Ivan Borgnino was interposed as a witness on behalf of the defendant. He was a passenger in the defendant's car, she having been his girlfriend at the time. They had been at home and were on their way to his girlfriend's parents' place for lunch. They travelled along Canning Highway and, as they approached the intersection, they began slowing and then moved to the right hand side (several cars being either slowing down, or stationary on the left hand side) and were slowing down. The lights were first orange, then red, and they were "crawling" towards the intersection when the car in front of them (the plaintiff's car) stopped in the intersection, then reversed backwards towards the defendant's car. At the point of impact, the defendant's car was just before the white line - he thought their car was travelling at less then 10 kilometres per hour when they approached the line. He spoke of the plaintiff acting in a "silly way", not giving the defendant her licence back until she went to the police - he recalled the plaintiff making "ridiculous" remarks at the time. He saw the Reids stop and give their details to the defendant and thought this was rather strange because the action of the plaintiff, in reversing, was not normal as far as he, Mr Borgnino, was concerned. He, in fact, saw another man give his details to the defendant. In cross‑examination, Mr Borgnino agreed that his radio was on, they may have been talking, and denied that they were going faster than the cars in front. He was asked various questions about the approximate speeds of other vehicles, however, it would have been difficult, in my view, for him to give accurate and/or reliable details of the speeds of other motor vehicles. It would not be appropriate, in my view, for the plaintiff to rely upon estimates given by a witness of the experience and the position of Mr Borgnino. He agreed that he remembered the brakes being put on and heard a screech, but denied that the brakes were applied four to five car lengths away. He said that the plaintiff's car had come to a stop just before they ran into it. He said that the plaintiff's car went into the intersection, stopped, reversed, and just stopped before they ran into it. The plaintiff's car went forward after the accident, although he could not say how far. The defendant's car, he said, was "written off", with damage to the front end, the lights and the radiator. The fact that the car was "written off" does not, in my view, provide a sufficient basis upon which to properly assess the damage to the defendant's car because, as is well known, the writing off of cars is often a financial decision. Mr Borgnino confirmed, in re‑examination that if the plaintiff's car had not reversed, they would have been able to stop at the white line and a collision would not have occurred.

As with Mr Reid, Mr Borgnino appeared to be an honest and straightforward witness and there was nothing in his evidence which suggested to me that he was not attempting to give an honest account of what had occurred in the accident, notwithstanding that he was the boyfriend of the defendant at the relevant time. I did get the impression however, from his evidence especially in cross‑examination, that before the defendant saw the plaintiff's vehicle begin to reverse towards them, the defendant's car was perhaps going faster at the relevant time than Mr Borgnino suggested.
Mrs Karen Michelle Reid was the driver of the vehicle in which her husband, Mr Darren Reid, was a passenger. Her evidence was very similar in detail to that of her husband's. She said that the impact of the defendant's car upon the plaintiff's car was strong enough to force the plaintiff's car completely over the white line, so that the whole car was in the intersection. She thought that the car was pushed into the intersection by some five metres ie. another car length. She was adamant that the plaintiff's car did not reverse back into the intersection. She confirmed that the car in front of her and her husband had driven off after the accident, such conduct being described by her as "disgusting". She did not see him stop and come back - when her husband got out of the car to give their name and address to the plaintiff, the vehicle in front had driven off. She agreed that she had described the occupants of the defendant's car as "two kids" who had been talking and who realised too late that the vehicle in front was stationary. She could not estimate the speed of the defendant's car.
I was not impressed with Mrs Reid's demeanour - she displayed what can be described as an unreasonable conviction that the plaintiff's car was in the right and was adamant that the defendant's car was at fault. On occasions, in her evidence, she attempted to volunteer information which was intended, in my view, to place responsibility for the accident on the defendant. Mrs Reid was not a person upon whom I could readily rely.
Miss Allison Jane Scates, the defendant, who is 28 years of age, confirmed the evidence of her former boyfriend, Mr Borgnino, and confirmed that, as the plaintiff began reversing, she could see that he had turned around and that they made eye contact. At that point, her car was three to four car lengths from the white line and the plaintiff's car came back, to a certain degree, before the white line. She said that had the plaintiff not made the reversing manoeuvre, she could have stopped before the white line. She confirmed that as soon she saw and realised what the plaintiff was doing, she slammed on her brakes.
Immediately after the accident, Miss Scates said, the plaintiff pointed to the camera and said words to the effect that he could not continue through the intersection because of the camera.
When cross‑examined, Miss Scates said that she slowed down to about 50 kilometres per hour and was in third gear approaching the lights, when she first noticed the red car reversing. She did not notice what speed it was going and, at no time, saw its brake lights go on. The first thing she noticed was its reversing lights. She was at least four cars back from the intersection before she became conscious of the plaintiff's car reversing. At the time, she was looking forward. She described the impact as a "jar" and her sunglasses came off in the impact. She said that the plaintiff's reversing was quite sudden.
Miss Scates was apparently a straightforward and honest witness who, on my observation, was attempting to give an honest and reliable account of what had occurred. I was concerned that she had not seen the plaintiff's brake light come on, but it is interesting to note that no other person saw this.
Mr Leon Michael Sanagra is a computer programmer - he was driving in the left hand lane and stopped at the intersection when the lights, having been orange, turned to red. He was next to the plaintiff's car. Mr Sanagra saw the plaintiff's car go through on the orange light and then apparently change its mind, and reverse back towards the intersection. The defendant's car then hit the rear of the plaintiff's car as it was coming back over the white line. There was not a huge impact, according to Mr Sanagra. He went across the intersection and found a place to park and came back so that he could give his details to the defendant. He noticed that the defendant was having problems getting her motor driver's licence back. It was his memory, in cross‑examination, that, at the time of the impact, the plaintiff's car was about halfway back across the white line, with the white car still going forward. He remembered the defendant's car skidding on the road but did not appear to be skidding for very long. He said that the red car was almost halfway through the intersection before it began reversing back. He, similarly, could not recall seeing any brake lights come on the defendant's car, but saw it reversing. He got the impression that the plaintiff's car was in a bit of hurry when it began reversing. He said that after the impact, half the plaintiff's car was behind the line.
Mr Sanagra was, in my view, an honest witness and, of all the independent witnesses, was in a position to have the best view of the movement of the plaintiff's car in particular and what it did immediately prior to the accident.
Mr Martin Erik Simms is a chartered civil engineer and gave evidence on behalf of the defendant. He gave evidence as to the stopping distances of vehicles driving at 60 kilometres per hour, given a reasonable and normal deceleration rate. He said that if the defendant was proceeding at 20 kilometres per hour at impact, the vehicle would normally have stopped in three metres and, thus, well short of the white line. He said a car driving at 60 kilometres per hour takes 28 metres stop, although this was a generous distance, and would take about three seconds to stop. It was his view that for the plaintiff to have stopped, changed gears and reversed from probably the centre of the road to the white line, this would have taken four to five seconds, although this was an estimation. I note that this estimate would obviously depend on the speed of the manoeuvre, the plaintiff's reaction time, and reflexes.
This summary of the evidence as to the accident, the evidence generally, and my comments and findings thereon lead me to make the following conclusions:
1.The intersection was wide and generally provided clear views to drivers approaching it and stationary at the various stop lines.
2.There were cameras operating at the intersection to photograph drivers going through amber and red lights and the plaintiff was aware of this.
3.As the plaintiff, defendant and other witnesses approached the intersection at various times, the lights were green, and then turned amber.
4.Just before the collision, Mr Sanagra was next to the plaintiff's car on the left hand side and in the best position to observe the plaintiff's actions.
5.Mr and Mrs Reid did not have as good a view of the plaintiff's car as Mr Sanagra - the time of their arrival at the intersection was obviously later than that of Mr Sanagra - they may well not have seen some earlier movement(s) of the plaintiff's car before impact. This may explain their evidence which, prima facie, supports that of the plaintiff.
6.The defendant and her passenger were driving in the same direction as the plaintiff and behind him - they should have had a clear view ahead and of the plaintiff's car.
7.On the basis of Mr Sanagra's evidence in particular, and also that of the defendant and Mr Borgnino, I am not satisfied that the plaintiff was, or remained, stationary at the intersection at the relevant time and just before the accident. I conclude that the plaintiff drove through the intersection when the light was amber and that he realised that it was turning or was about to turn red. He was, I find, concerned that he would be photographed if he "ran" the red light. He stopped and reversed backwards towards the white line at a quick speed, looking back as he did this. This was an unusual action and one which Mr Sanagra clearly observed and remembered well. I accept the defendant's evidence as to the plaintiff's statement concerning the light after the accident. Further, the reservations I generally have as to the plaintiff's evidence lead me not to accept his version of the events. His actions concerning the motor driver's licence of the defendant were far more "dramatic" than he would concede in evidence.
8.The plaintiff thus created a dangerous situation, particularly for other cars following him and approaching the intersection. He obviously realised the potential danger of his action because he was looking backwards as he reversed towards the white line, but, despite his obvious realisation of the danger, he persisted in his backwards manoeuvre.
9.The plaintiff's car reversed to a position near, or just over, the white line.
10.As this was occurring, the defendant's car was approaching the intersection. I accept that she had changed down to third gear, preparatory to stopping at the intersection - she had obviously seen the amber light.
11.The dangerous situation was created by the plaintiff's manner of driving which, in all the circumstances, was negligent.
12.The defendant saw the plaintiff's car reversing at a time and in circumstances where she was not able to stop in time to avoid a collision with the rear of the plaintiff's car. Bearing in mind, however, the physical evidence and measurements provided by both expert witnesses, it is possible to speculate that the defendant was not keeping a proper lookout for a short length of time as she was approaching the intersection on the basis that if she was looking ahead at all times, she would have had the plaintiff's car in view and seen the entirety of his actions, that is, going through the intersection, slowing down and stopping, and beginning to reverse.
I have been referred by counsel for the defendant to a number of cases in which defendants have been found not to be negligent and in circumstances said to be similar to the present case ie. Minshull v Pecorari [1968] WAR 59, South Australian Ambulance Transport Inc v Walheim (1948) 77 CLR 215, Earl v Stevensen [2000] WASCA 159 and Derrick v Cheung (2001) 181 ALR 301. Adopting the principles in these cases, in my view it would be speculative to draw conclusions as to the defendant's actions prior to the collision; there is insufficient evidence upon which it could be said that the defendant was negligent.
13.The plaintiff's action was negligent and involved a breach of duty owed to other road users, especially those behind him. His manner of driving was the cause of the collision.
In all the circumstances, I consider that the plaintiff was wholly to blame for the accident and that his claim for damages should be dismissed.
I propose, however, to make a "provisional" award of damages, having heard the relevant evidence.
Inherent in my above findings, of course, is my rejection of the plaintiff's evidence as to the circumstances of the accident. This rejection reflects a considerable concern as to the plaintiff's credibility and reliability, such concerns obviously being relevant to the consideration which follows of the plaintiff's claim for damages, and the basis of which the plaintiff makes such claims. Some further reasons for such concerns are mentioned in due course.
Turning to the plaintiff's claim for damages and the assessment of any damages to which the plaintiff may be entitled as a result of the accident, it is appropriate to note that, although there was some evidence as to the possible cost of further medical treatment and/or medication, there was no evidence as to any financial basis upon which a claim for loss of earnings or future earning capacity could be based. Nor was there any evidence as to the calculation of loss of superannuation benefits. It was obviously the case that the plaintiff was seeking to be compensated for the loss of his earning capacity in a broad sense, with various authorities being referred to concerning cases in which, for example, plaintiffs had not worked for some time but were, nevertheless, found to have lost their earning capacity, and being awarded a global figure. This was the basis upon which the plaintiff's counsel approached the awarding of any damages for loss of earning and/or earning capacity.
I have already set out the particulars of injuries alleged to have been suffered by the plaintiff. They involved alleged soft tissue injuries to his thoracic and lumbar spines which, in turn, were said to produce symptoms (a) to (i) in par 4 of the statement of claim. It was further said that the plaintiff sustained a "partial disability of the lumbar spine" (see par 8 of the statement of claim) which produced pain, stiffness and tenderness of the back, limitation of movement of the back, headaches and discomfort, together with sleep disturbance which, it could be said, would continue in the future. This disability appears to be said to be permanent and seems to complement the soft tissue injury to the lumbar spine referred to in par 4. In my view there is insufficient evidence upon which it could be found that the plaintiff has a continuing "partial disability" of his lumbar spine as alleged in par 8.
As to the matters alleged in par 4, it was generally accepted that the plaintiff's claims as to injuries suffered by him fell into three areas:
1.His spinal problems.
2.The "loss of control of the bowel and incontinence".
3.Depression and anxiety.
In the light of the medical evidence and evidence generally, I can readily find that at an early stage after the accident, the plaintiff had some headaches and discomfort with some sleep disturbance (par 4(c)). I am unable to find that the plaintiff had spasms in his lower legs (par 4(d)), heart palpitations (par 4(f)) and weakness in his left upper arm (par 4(h)). If there was any blurred vision suffered by the plaintiff after the accident (par g)), the evidence makes it clear that such blurred vision related to his multiple sclerosis rather than any injuries suffered by him in the accident. Having said this, it is thus clear why the plaintiff's counsel concentrated on the three areas referred to above. I will deal with each of those in turn.
As to any injury to the plaintiff's thoracic and lumbar spines and their sequelae, there is some evidence from the plaintiff's general practitioner and, for example, Dr Kermode, to suggest that in the early stages after the accident, the plaintiff had some soft tissue injury to his thoracic and lumbar spines, and this is consistent with a rear end collision of the type involved in this accident. On all the evidence, including the photographs and that of the experts, there was a reasonably moderate collision, but one which certainly could not be described as the sort of accident that occurred after a collision involving a vehicle from behind travelling at 80 kilometres per hour, as the plaintiff advised Dr Felice. There were complaints by the plaintiff at an early stage as to pain and discomfort in his lower back and some limitation of movement therein. I am satisfied that these problems cleared up within several months of the accident and that, by the end of 2000, there were minimal, if any, resulting symptoms from such injuries. Any symptoms arising from and relating to the plaintiff's thoracic and lumbar spines would only lead to a minimal award of damages, in my view.
As to the "loss of control of the bowel and incontinence", this was the matter which was at the crux of the plaintiff's claim generally and, in particular, for loss of earnings and earning capacity. In general terms, it was the plaintiff's case that, at the time of the accident, he lost control of his bowels and, from that point of time and until the present, has suffered from what he described as "incontinence". There was some discussion as to whether the plaintiff's condition could be properly categorised as incontinence or faecal urgency. It was said by the plaintiff's counsel (relying on the evidence of Dr Hollingsworth) that the distinction was not important, thus, should not be relied on by either counsel. It can be probably accepted that a generic description of the plaintiff's symptoms could be "incontinence", however, it is the way in which he suffers that condition which is important, in my view. The medical evidence, including that of Drs Kermode, Silbert and Hollingsworth, makes it clear that the plaintiff is not complaining that he has no warning of bowel movements such as would be suffered by someone with a neurological problem. There is no question that diarrhoea is involved - it is the plaintiff's position, as confirmed to Dr Hollingsworth, that whenever he has difficulties with his bowels, it results in and involves a full bowel movement. The position is that the plaintiff does not have bowel movements without any warning at all and, thus, involuntarily, but has some short warning, he says, and with the resulting necessity to get to the toilet as quickly as possible to have a full bowel movement. This description of the plaintiff's incontinence is important in that it relates to the existence, or otherwise, of the symptom itself, and also to the possible effect on the plaintiff's working ability if, in fact, it does exist.
It was the defendant's case that the plaintiff did not suffer from this condition at all and that if he did, it was the result of his multiple sclerosis. I do not need to consider in detail the medical evidence because the predominance of that evidence, for example, Dr Kermode and Dr Silbert, is to the effect that the plaintiff's multiple sclerosis is not responsible for any difficulties with the plaintiff's bowels at the moment. It is the evidence of the specialists that multiple sclerosis does lead to urinary and bowel problems, although more likely constipation rather than incontinence in the early stages, incontinence occurring more readily in the later stages of multiple sclerosis when the neurological dysfunction becomes worse.
It was the plaintiff's evidence that, from the time of the accident until the present, he has had the bowel difficulties and this has been recurring two to three times a week, and some times several times in a day. Having reviewed the evidence, I am not satisfied, on the balance of probabilities, that the plaintiff suffers from this condition. A number of reasons arise for this finding:
1.I am not satisfied as to the plaintiff's credibility and reliability generally.
2.It was said by the plaintiff that the bowel difficulty arose immediately the accident occurred - if this were so the results of such an accident would have been clearly obvious one way or another to people in the vicinity. The plaintiff spoke to a number of people immediately after the accident at the scene. There was no evidence of any obvious effect of a bowel accident from any of these witnesses. Additionally, the plaintiff did not choose to remain in his car, take any action to cover up what must have been, if it had occurred, an embarrassing situation. Indeed, he argued with the defendant for some time and was involved in attempts to physically avoid handing back her motor driver's licence.
3.This condition, which was obviously a major concern of the plaintiff's, was not reported to his general practitioner, Dr Greenham, on any of the first four times he saw him ie. on 6 and 9 June 2000, and 7 and 19 July 2000. Indeed, on the 9 June 2000 attendance, the plaintiff complained of pain in his rectum which, it was said, radiated to his feet during defecation. The plaintiff, at that time, declined rectal examination but was examined in his abdomen and testicles. There was thus specific reference to the plaintiff's rectum and defecation, but the plaintiff did not mention any difficulties with incontinence - some five days after the accident during which, it was said, a number of occurrences of incontinences occurred, including an episode at the time of the accident. It was not until 21 July 2000 that the plaintiff complained of faecal incontinence but, once again, declined rectal examination. The declining of the rectal examination is questionable in the light of the plaintiff's general complaints. It is also the case that when Dr Greenham saw the plaintiff on 9 June 2000, he complained of urinary symptoms and he was referred to the Urology Department of Royal Perth Hospital - once again, urinary symptoms were mentioned involving incomplete bladder emptying and other problems, but not any bowel incontinence. Further, when the plaintiff complained to Dr Greenham on 21 July 2000, he "recorded" that the plaintiff had referred to "some faecal incontinence" - there was not the detailed complaint which has been alleged in the proceeding generally.
4.The plaintiff first saw Dr Kermode on 10 July 2000, some five weeks after the accident. On that attendance, there was no mention of bowel incontinence. There was an in‑depth discussion as to possible multiple sclerosis symptoms which, it is said, arose and became new 2‑1/2 months before that date. Once again, there were complaints of urinary urgency and some complete bladder emptying but, in the course of taking of details as to that type of complaint, there was no mention of any bowel incontinence. The first time that any bowel difficulties were mentioned to Dr Kermode was on 4 September 2000. On that occasion, it was described as "significantly altered bowel habit" which, it is said, appear to have occurred "since his motor vehicle accident". This problem was further described by Dr Kermode as a "bowel disturbance", resulting, he said, in the plaintiff appearing "to be housebound at present and reluctant to go out". It was not described in the dramatic terms which the plaintiff used to describe his condition from the date of the accident and onwards.
5.The plaintiff had a significant worsening of his multiple sclerosis symptoms in August 2001 and went to Sir Charles Gardiner Hospital. There, he was examined by a neurological registrar, Dr Xu; detailed instructions were taken and Dr Xu noted that the plaintiff had advised him that he had "no bladder and bowel problems". It is inconceivable that, in my view, had the plaintiff been having regular incontinence, that that would not be mentioned by the plaintiff to Dr Xu.
6.The plaintiff was examined at Royal Perth Hospital in 2002 in the Gastroenterology Ward and found to have no physical disability as a result of the examination.
7.There is medical evidence to support the proposition that any incontinence was not as a result of the motor vehicle accident.
8.The symptom itself is extremely unusual - Dr Hollingsworth, who has long experience in dealing with thousands of patients with symptoms following motor vehicle accidents, told me that this is the first case he can recall where it was claimed there was an association between irritable bowel syndrome and the accident. Generally it is difficult to conceive an alleged symptom which would be more difficult to refute than that complained of by the plaintiff. When one considers the practical considerations involved in factually disproving the plaintiff's allegation by eye witnesses or otherwise, the conclusion that must be drawn is that if the symptom was, in fact, non‑existent, it is very easy to allege and extremely hard to disprove. Of significance, in this regard, is the evidence of Dr Hollingsworth, who confirmed that there was, in fact, a medical test which could confirm the existence or otherwise of the syndrome alleged by the plaintiff. This is the "in put, out put test" and involves the staying of the patient in a hospital where the amount of food ingested by the plaintiff is measured and the amount of waste matter expended by the plaintiff is similarly measured with the number of times the plaintiff goes to the toilet, being timed, and measured. The evidence of Dr Hollingsworth makes simple practical common sense - the plaintiff has refused to be rectally examined by his general practitioner and there is no evidence of the plaintiff's preparedness to have his alleged bowel condition properly investigated.
9.The obligation is upon the plaintiff to establish the existence of the symptom and the obvious and most reliable corroborative evidence would have been from the plaintiff's wife. She does not work (she is a student) and she would be in the best position to confirm the physical activities of the plaintiff at home and when they are out together. If, indeed, the plaintiff has being going to the toilet as quickly and as many times as he has alleged since the day of the accident, his wife should have been in a position to confirm at least his absences from the room at a particular time and in other places and his concerns expressed to her verbally or in his body language. No such evidence was given.

In all the circumstances, I am not satisfied, on the balance of probabilities, that the plaintiff has suffered the symptom of incontinence alleged by him.
Finally, the plaintiff has finally alleged that, as a result of the accident, he has suffered depression and anxiety. It should firstly be pointed out that the plaintiff is well aware of the fact that the medical practitioners have consistently refused to link his alleged anxiety and his bowel syndrome with his multiple sclerosis. Although, on the one hand, this may support an argument in favour of the plaintiff as to the existence of that syndrome, on the other hand, it is clear that, in order to further the plaintiff's allegation as to the syndrome, it is obvious that to link this with a condition of anxiety and/or depression as a result of the motor vehicle accident would strengthen both the allegation as to the symptom of bowel problems and also the psychiatric problems. There is equivocal medical evidence as to whether the plaintiff suffers a psychiatric condition as a result of the accident. The diagnosis of Dr Chapman and Dr Felice are more or less at odds with each other. Accepting that the plaintiff suffers from a depressive disorder, it is the case that there are a number of matters which could have given rise to any depressive illness on the part of the plaintiff - his multiple sclerosis diagnosis and its ongoing rise and fall of symptoms, his financial difficulties and family losses. I am unable to be satisfied, on the balance of probabilities, that the plaintiff has suffered any depressive illness as a result of the motor vehicle accident. As to the question of anxiety, I am prepared to accept that, having been involved in a motor vehicle accident and with the plaintiff having suffered the multiple sclerosis for some time, he has become anxious as to his medical condition - whether or not any anxiety is related to the motor vehicle accident is, once again, a matter of dispute in the evidence of the medical practitioners. It is reasonable, however, to conclude that for a reasonably short time after the motor vehicle accident, the plaintiff did suffer from some anxiety as a result of the accident but, if that condition has continued, it has ceased to be related to the motor vehicle accident and its cause has been the result of other factors.
Generally speaking, therefore, it is the case that the plaintiff has suffered few, if any, of the alleged symptoms as a result of the motor vehicle accident and any assessment of damages must be looked at in that light.
In the light of these findings I am of the view that any award of damages for non‑pecuniary loss would be less than 5 per cent of the "most extreme case" - see s 3C, Motor Vehicle (Third Party Insurance) Amendment Act 1994. The relevant authorities are well known. Five per cent of amount "A" (being the amount applicable with effect from 1 July 2002 ie. $240,000) is $12,000. The plaintiff would be entitled, in my view to damages in a figure less than the "threshold" figure referred to in s 3C(4) of the Act being the sum of $12,000 and, therefore, no sum for non‑pecuniary loss would be awarded.
As to the plaintiff's claim for loss of earning and loss of earning capacity, I have already mentioned that there is no evidence as to any financial basis upon which such a claim can be made. On the basis that I am not satisfied that the plaintiff's alleged incontinence exists and that some of the plaintiff's symptoms related to the motor vehicle accident are minimal, there would be no basis, in my view, upon which it could be said that any loss of earnings or loss of earning capacity which the plaintiff could establish is in any way related to the motor vehicle accident. I have been referred to various authorities concerning plaintiffs who had displayed no actual earnings before trial but who have been found to have some loss of earning capacity. Bearing in mind, however, that the plaintiff never worked as a physical education teacher in Australia, his medical history generally (particularly his condition of multiple sclerosis) and in the light of the plaintiff's minimal work in any capacity in Australia, I am not prepared to accept that the plaintiff has suffered any loss of earnings or loss of earning capacity arising from the motor vehicle accident, and no award would be made under this head. Similarly, there is no basis in the evidence for the plaintiff to be awarded any sum related to future medical and other expenses and loss of superannuation benefits. I have not been advised of any claim for special damages and, thus, no sum could be awarded under this head.