Jankulovski v Crewes - [2001] WADC 223

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: JANKULOVSKI -v- CREWES [2001] WADC 223

CORAM: O'BRIEN DCJ

HEARD: 27-31 AUGUST 2001

DELIVERED : 21 SEPTEMBER 2001

FILE NO/S: CIV 1672 of 2000

BETWEEN: LJUPKO JANKULOVSKI
Plaintiff
AND
GLENN RAYMOND CREWES
Defendant

Catchwords:

Personal injuries - Motor vehicle accident - Causation - Turns on own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Damages awarded

Representation:

Counsel:

Plaintiff: Mr D R Clyne
Defendant: Mr J P T Olivier

Solicitors:

Plaintiff: Friedman Lurie Singh
Defendant: Talbot & Olivier

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

Black v Motor Vehicle Insurance Trust [1986] WAR 32
Bowen v Tutte [1990] A Tort Rep 81‑043
Foyster v Goynich [1984] WAR 80
Jongen v CSR Ltd & Anor (1992) A Tort Rep 81‑192
Kember v Thackrah [2000] WASCA 198
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Thomas v O'Shea (1989) A Tort Rep 80‑251
Villasevil v Pickering [2001] WASCA 143
Watts v Rake (1960) 108 CLR 158

Case(s) also cited:

Fox v Wood (1981) 148 CLR 438
Gardner Brothers & Perrott (WA) Pty Ltd v Seat, unreported; SCt of WA; Library No 7318; 13 October 1988
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Wade v Allsopp (1976) 10 ALR 353

O'BRIEN DCJ: Ljupko Jankulovski ("the plaintiff") is a 50 year old man who was injured in a motor vehicle accident on 9 February 1998. He was driving his work van south down Fitzgerald Street, North Perth, and was stationary at the intersection of Fitzgerald and Vincent Streets when the car driven by the defendant collided with his van. The intersection was controlled by traffic lights and the plaintiff's van was a couple of cars back from the intersection. The vehicle driven by the defendant failed to completely take a left hand turn into Fitzgerald Street and clipped the tyre of the car in front of the plaintiff's van before colliding with the plaintiff's van on the right hand side at the front. Liability is admitted. The issue for my determination is the amount of damages.
The plaintiff claims that after the accident he has not worked apart from short periods after the accident and periods of rehabilitative work trials. He claims to suffer pain in his neck, right shoulder and wrist and lower back; headaches and intermittent dizziness; and depression.
The defendant denies that the plaintiff's injuries are a result of the accident and, in the alternative, claims that whatever injuries or symptoms he does experience are unrelated to the injuries sustained in the accident. In particular, the defendant alleges that the plaintiff was suffering from degenerative spinal disease both prior to and subsequent to the accident; that his low back pain was caused when lifting in or around May 1998; that he had previously injured his left knee; and his right median nerve compression was unrelated to the accident. The plaintiff's counsel conceded at trial that the wrist pain was unrelated to the accident.

The plaintiff's personal and work background

The plaintiff was born in Macedonia on 11 November 1950. He completed the equivalent of year 10 in Macedonia and migrated to Australia in June 1996. He was married about 25 years ago and has two sons of the marriage. The elder son left home on his marriage and the younger son, now aged 19, still lives with the plaintiff and his wife.
When he came to Australia, the plaintiff started work at the Water Authority (as it then was) as a labourer, a job he held for three years. Thereafter he worked for 10 years at a meat packers, packing orders and loading trucks. He was required to lift boxes of meat weighing 20 to 25 kilograms. He then had a couple of short term jobs before returning to the Water Authority, where he worked for 12 years. During his time there he obtained a licence as a dogman, a job which involved climbing up scaffolding. He injured his left knee at work in 1993 and was offered a redundancy package by the Water Authority in 1995. He testified that he was not retrenched from the Water Authority because of his injured knee, but because he declined to work in the country. He was out of work for about a year before being employed in late 1996 at Midland Trading Company ("Midland Trading"), where he worked until the time of his accident.
The plaintiff started working with Midland Trading in late 1996. This was after he persuaded his initially reluctant employer, Mr Muriale, to employ him. His initial contract ended on 30 July 1997. Thereafter he testified Mr Muriale extended the contract verbally for three months and, from then on, there was no formal extension.
The plaintiff was dismissed on 15 May 1998. The letter of termination referred to the down turn in the coffee prices and the lack of customers in the last 12 months. The plaintiff's case involves the assertion that his medical condition at that time had some bearing on his dismissal. Mr Muriale denied this and contended that the plaintiff was dismissed because of his performance which had been of concern for some time. He testified that the costs of employing the plaintiff exceeded the orders the plaintiff was able to secure from customers and that he was not engaging any new customers.
Midland Trading's main business is as a coffee wholesaler, importer and roaster of raw beans. It also deals in general food items to retailers and restaurants.
The plaintiff's work at Midland Trading involved driving a van up from between 100 to 200 kilometres a day, packing foodstuffs including tins of oil, 25 kilogram bags of flour and 10 to 15 kilogram boxes of pasta into his van. However, primarily, his job there was as a salesman. Mr Muriale testified that 90 per cent of the deliveries was done by truck and only occasionally would the van be used to deliver goods. The plaintiff testified that "sometimes" he did deliveries. I find that the plaintiff's job at Midland Trading was mainly as a salesman which involved driving a van for up to around 500 kilometres a week and that, from time to time, he was required to lift loads of up to 25 kilograms.
The plaintiff testified that prior to his accident, he was active socially. For two years before the accident he was president of his soccer club and vice president of a Macedonian community group. Dr Norcott, his general practitioner for the last eight years or so, described the plaintiff as gregarious, outgoing and energetic before the accident.

Plaintiff's medical condition before the accident

The only relevant injury prior to the accident is a knee injury the plaintiff suffered when he worked for the Water Authority in 1992. The plaintiff testified that his redundancy from that job had nothing to do with his knee injury. He settled his claim against the Water Authority in 1995.
The medical evidence is to the effect that there was never any complaint made about cervical or lumbar problems before the accident. There is evidence which I discuss below about degeneration of the cervical spine at the C5/6 level. This evidence is to the effect that it is not possible to identify the cause of this condition - that is, whether it is age or trauma related. However, the preponderance medical opinion, which I accept, is to the effect that prior to the accident, the plaintiff had degeneration in the cervical spine at the C5/6 level.

The accident

The plaintiff testified that the defendant's car hit his car on the right hand side. He was wearing a seatbelt at the time. My understanding of the plaintiff's evidence which involved gestures not recorded on the transcript, is that the force of the impact moved his vehicle about a foot.
The plaintiff testified that he put his right arm forward as if to protect himself from the impact. On impact, he hit his forehead above the left eye which caused a minor laceration and some bruising. He cannot recall how this happened. He said he felt dizzy and splashed his face with cold water. He was at the scene for about 10 or 15 minutes and then was taken to the police station to make a statement. He testified that he did not know what he was saying to the police because he was dizzy. The police returned the next day for him to check his statement.
The plaintiff drove the van back to his workplace. He testified that the damage to the van cost about $1,400 to repair.
Mr Muriale testified that after the accident, he drove the van for two weeks or so before it was repaired. The only damage to the van was to its right panel at the front and to the right headlight. There was no other evidence as to the circumstances of the accident.
I find that the accident was minor. Dr Bell, an orthopaedic surgeon engaged by the defendant's insurer, noted that when he saw the plaintiff on 17 March 1998, he had a bruise on his forehead which was still clearing and a bruise on his right shoulder from the seatbelt.
The cost of repairs and damage to a vehicle after an accident are not the only factors which may assist in determining the severity of impact. In this case, the plaintiff's evidence, together with the objective findings by Dr Bell nearly six weeks after the accident, support a finding that, notwithstanding that the damage to the van was minor, the plaintiff did receive a jolt which was severe enough to cause him to strike his head (presumably on the steering wheel or some other part of the van) causing a laceration and bruising, and bruising to his shoulder from the seatbelt. Examination of expert witnesses by counsel for the defendant, done with a view to establish that the accident was not sufficiently severe to cause the injuries to the plaintiff's neck, did not involve putting the objective findings of Mr Bell to the witnesses but focused on the cost of repairs to the van.

The aftermath of the accident

The plaintiff testified that after the accident he immediately experienced a headache. That night he went to see a doctor from the Mirrabooka Medical Centre as he was feeling dizzy, he had a headache and had pain behind his ears in his neck. His usual doctor was on leave at the time. The plaintiff did not go to work the next day. He saw a Dr Gleave on 9 February 1998 who certified him unfit for work for 10 days due to "whiplash injury to neck". It would appear that Dr Gleave considered the injury to be serious enough to order an x‑ray which was done on 12 February 1998. On 18 February 1998, a Dr Hoffman certified him unfit until 27 February 1998 due to "neck pain". Thereafter, most, if not all, of his appointments with general practitioners were with his family doctor, Dr Norcott.
Dr Norcott first saw the plaintiff after the accident on 27 February 1998 and certified him as fit for a work trial, noting that he required further treatment. On 23 March Dr Norcott certified him as unfit for two weeks. However, on 3 April 1998, Dr Norcott certified him as fit to return to work. The defendant contends that since this date the plaintiff has been fit to work in his pre‑accident employment and that his symptoms since then are exaggerated or false or a result of depression unrelated to the accident.
The plaintiff testified that about four or five months after the accident he started to get pain in his lower back. He testified that he still has pain in his right shoulder, pins and needles in his right hand and lower back and the whole of his right side of his body hurts. Sometimes he experiences a sharp pain in his neck. He testified that he was unable to close his right hand when he woke in the morning.
He testified that there has been no real change in his symptoms since the accident. He has only had some temporary relief after an injection [root sleeve] to his shoulder and after massage. He said that he feels depressed and worthless because he cannot work and socialise as he did before the accident. Before the accident he said that he would go to dances and picnics. Now he said that he cannot cope with going out and seeing people enjoying themselves. His parents and his wife help out around the house doing chores which he formerly did. He is unable to mow the lawn and hires a person to do that task. This makes him embarrassed and depressed. He said that he lives a completely different life since the accident. He said that his relationship with his wife and children is not very good. He did not expand on his relationship with his wife but had told some doctors that he had reduced libido. The plaintiff testified that he now spends his days doing his exercises for about 10 minutes, both in and out of the shower (he said he showers two or three times a day), walks a little and watches television.
The plaintiff testified that he takes Panamax for his headaches, medication to help him sleep and takes Voltaren (anti‑inflammatory) and applies Dencorub to his back. He was prescribed antidepressant medication at some stage by Dr Srna, a psychiatrist, but it did not agree with him.
The plaintiff was treated by a physiotherapist three times a week from the date of the accident until about early 1999. He has received psychological counselling from Mr Tony Schnieder from 20 August 1999 until March 2001.

The plaintiff's dismissal from his job

Mr Muriale testified that the plaintiff was employed by him somewhat reluctantly after the plaintiff made several overtures for work. He said that when the initial 12 months contract came to an end, he mentioned to the plaintiff that he was not generating new customers to the extent expected of him. After discussions with the plaintiff, Mr Muriale extended his contract for another three months. Mention was made again of the plaintiff's performance but when the plaintiff pleaded to be kept on, Mr Muriale relented. Mr Muriale testified that there was no mention of dismissal but he told the plaintiff that he would have to do "something about" his performance. After the accident, Mr Muriale sought legal advice about dismissing the plaintiff but was told by his solicitor that if he did so it would not look too good and to wait to see how things panned out.
Mr Muriale said that after the accident, the plaintiff did not complain about any effects until one or two days later. He said that the plaintiff was off and on work, having been certified unfit. One of the medical certificates certified him fit for light duties only and Mr Muriale was not "happy" with that as it was necessary for the plaintiff to lift things "every now and then".
The plaintiff mentioned that he had a "bit of a sore neck" and that every so often he would get dizzy. Mr Muriale was unable to recall if the plaintiff made any mention that he was unable to drive. He recalled one occasion when he was off‑loading some produce from the van and the plaintiff offered to help.
The plaintiff was dismissed from his job on 15 May 1998. This was after the plaintiff had produced the medical certificate dated 3 April 1998 saying he was fit for work. Mr Muriale testified that the plaintiff was dismissed because he was not bringing in new customers, that it was his intention to dismiss him in any event but (in effect) he waited until he was fit for work before doing so. He would not concede under cross‑examination that the plaintiff's accident and subsequent unreliability as a full‑time worker on normal duties had any bearing on the accident. However, given the fact that Mr Muriale sought legal advice about dismissing the plaintiff after the accident and given the exacerbation of his general dissatisfaction with the plaintiff's work performance after the accident, I find that the plaintiff's condition was not an insignificant factor in the final decision to dismiss the plaintiff.

The medical evidence

Since the accident, the plaintiff has been treated conservatively with analgesics, anti‑inflammatory medication, Dencorub for his back and physiotherapy. He has also had the psychological counselling to which I refer below.
The MRI taken on or abut 13 May 1999 reports that at the C5/6 level of the spine, "there is a large postero‑lateral disc/osteophyte complex which extends 4 mm posteriorly to contact and mild deform the right side of the ventral surface of the cord with moderate to marked narrowing of both C6 exit foramina. The disc/osteophyte compact is slightly more marked on the right where it causes impingement on the right C6 nerve root". Other radiological reports are to the same effect. I accept the consensus of medical opinion that this condition is not normal and can be described as moderate to severe.
The plaintiff testified that this condition was asymptomatic before the accident and Dr Norcott has no record of any complaints about his neck nor of any problems in his lumbar region.
Dr Norcott had been the plaintiff's general practitioner for about five or six years before the accident. Since the accident he has had over 50 consultations with the plaintiff. I assess him to be not only competent but also careful and not prone to "rubber stamping" the plaintiff's complaints. In his latest report dated 20 August 2001, Dr Norcott reiterated what has been his view since early after the accident, that the plaintiff has inflammation of underlying pre‑existing degenerative changes of the cervical spine; related postural dysfunction with thoracic/lumbar soft tissue symptoms; and right upper limb radicular symptoms with no objective evidence of neuralgic loss. He also documented the plaintiff's pain as a chronic pain disorder with associated adjustment disorder together with depressive/anxiety symptoms. He noted the plaintiff to be significantly dysfunctional with respect to his pre‑accident personality and behaviour.
Dr Norcott assessed the plaintiff's cervical soft tissue injury as 10 per cent whole body impairment. Dr Norcott is of the view that the plaintiff is "clearly not fit for his pre‑accident work" and that his future work capacity is limited to "sedentary non‑repetitive tasks of less than 20 hours per week".
Dr Norcott referred the plaintiff to Dr Gee, a consultant in pain management, who referred the plaintiff to Mr Schneider. Dr Norcott also referred the plaintiff to Professor Mastaglia, a consultant neurologist and Dr Srna, a psychiatrist.
Dr Gee initially saw the plaintiff in August 1998. He noted "... tenderness over his right greater occipital nerve. Associated with this, was tenderness through the trapezius and sternomastoids. He was exquisitely tender over the extensor muscle group of the right elbow and, to a lesser extent, the flexor group. He had some tenderness over the left extensor muscles. His cervical range appeared reasonable with a normal shoulder movement". In the lumbar region, he noted a trigger over the right erector spine but his range of lumbar movement "appeared quite good". Dr Gee testified that the plaintiff's response to clinical assessment was not what he would normally expect and agreed that it was possibly "put on". He said that the plaintiff had not made use of a pain management program recommended and considered that the plaintiff should have been doing more in terms of exercise than walking and stretching. He would expect that motivated patients would do very well within such a program. However, he said that physical recovery is likely to be affected if a person has depression as they are more sensitive to pain and are likely to be more reluctant to undertake physical activity. He was of the opinion that the injuries sustained in the accident primarily related to muscular injuries to the cervical region and the usual trend is for a person to recover in the absence of any significant pathology or nerve abnormality. However, he said that he ordered a root sleeve injection to exclude the degenerative pathology as a cause of the pain. This had no effect. He did not consider that the plaintiff's pain condition prevented him from driving a car but that he had developed significant anxiety when driving and that in September 1999 he was of the view that the plaintiff could look to a graded return to work undertaking light duties for three hours, three days per week and then grading up.

Dr John Saunders, a medical practitioner in rehabilitative medicine, reviewed the plaintiff in January 1999 at the request of the defendant's insurers. He found that the plaintiff suffered some limitation of neck movement by pain at the limit of the movements and also some reproduction of pain near the scapula on each side on shoulder movement. He was of the view that the plaintiff suffered a relatively minor injury to his neck. He considered that the knee and back pain were unrelated to the accident. Further, he did not see that the plaintiff's future working capacity was compromised because of the accident.
The plaintiff told Dr Saunders that he injured his back by lifting when he returned to work after the accident.
Dr Home, a consultant in occupational medicine, also examined the plaintiff at the request of the defendant's insurers. This was on 29 March 1999. Dr Home considered at the time the "persistence and extent of his current subjective complaints is unusual given the period of time since the accident and [the plaintiff's] progress in the period between April and May 1998". He was of the view that the plaintiff had sufficiently recovered from the effects of his injury to return to his pre‑accident work as a salesman, notwithstanding his residual neck complaints and did not "believe" that he was then unable to drive. He suggested work in the areas of clerical work or "perhaps light telephone sale type position". He was not prepared to comment on the plaintiff's present status without the opportunity of re‑examining him. Overall he considered that motivational factors and the plaintiff's undue pessimism were barriers to him returning to work. However, he accepted that in the absence of secure employment, chronic pain makes motivation difficult. When he examined the plaintiff in 1999, he was of the view that the plaintiff did not present with features which would point to him being unfit for work on psychological grounds. However, counsel did not follow up this point and Dr Home was not qualified to give an opinion on the plaintiff's psychological state.
Professor Mastaglia, a consultant neurologist, first saw the plaintiff on 22 April 1999 and last reviewed him on 14 September 2000. After reviewing the MRI taken on 13 May 1999, Professor Mastaglia was of the view that the impingement on the C6 nerve root would account for the right upper limb pain and reduced sensory symptoms in the right arm and hand. When last reviewed, neurological examination was normal but the plaintiff complained of neck, right shoulder and arm pain and headaches and periods of dizziness. At that stage, Professor Mastaglia was of the view that since it was over two years since the accident that it is likely that the plaintiff "will be left with a residual disability in relation to the neck and right shoulder which [he estimated] to be of the order of 20% for the neck and 15% for the shoulder". He was also of the view that it is unlikely that the plaintiff will make a full recovery and that he will be left with a significant permanent disability. His view was that it would be difficult for the plaintiff to return to the driving work he was doing previously because "there would be a distinct possibility that [it] would aggravate his neck symptoms and could aggravate the nerve root involvement simply because of the frequency of neck movement involved in ... driving particularly neck rotation or neck flexion". But Professor Mastaglia would not rule out the possibility that the plaintiff might perform light duties.
Mr Lee is a neurosurgeon who examined the plaintiff at the request of his solicitors on 22 February 2001. His examination revealed no neurological deficit. He referred to the pre‑existing degeneration at C5/6 and was of the view that it would make the plaintiff more vulnerable to the effects of trauma. He said in his report that "there is no inevitability that these changes would have become symptomatic and [does not believe] that the presence of these changes minimises the consequences of the accident". He was firm in his view that the plaintiff's present symptomatology does not relate to anything other than the consequences of the accident. The delayed onset of arm pain "is consistent with the pathophysiological consequences of the injury to a previously asymptomatic degenerated neck". He attributed the shoulder pain to an injury incurred whilst the plaintiff was trying to reflexively protect himself. Mr Lee considered it appropriate to assess permanent disability on medical grounds. He testified that it is very difficult to say when the effects of the trauma have worn off. He said that the joints reach a stage where they do not recover and they become permanently symptomatic to varying degrees. He considered that prognosis was poor and estimated a 30 per cent total body impairment which he conceded is a matter of judgment which might differ from expert to expert. He opined that the plaintiff was not fit for his pre‑accident employment which be considered to be the result of the injury sustained in the accident.
The plaintiff was examined by Mr Bell, an orthopaedic surgeon, on 17 March and 15 June 1998 and on 9 April 2001 at the request of the defendant's solicitors. When he first saw the plaintiff he was of the view that there were "no obvious pre‑existing or unrelated factors involved". He recommended conservative treatment including an exercise program. After his examination on 15 June 1998, he opined that "the probable cause of his neck problems does appear to be significantly related" to the accident. He considered that the plaintiff was capable at that stage of performing his pre‑accident work, noting that he did have ongoing discomfort. After his examination on 9 April 2001 Mr Bell reported that it "does appear reasonable to assess that [the plaintiff] has ongoing neck and low back pain which does remain related to his motor vehicle in February 1998". In response to a question put by me, he said that he did not consider that the low back pain would result in any permanent disability but that it is reasonable to assess the degree of permanent disability in the neck region at 10 per cent loss of the full efficient use of the neck. He retracted his reported opinion of the cause of the low back pain in the course of his testimony. He noted that the plaintiff did have ongoing neck and back pain but that he had a reasonable level of function and reasonable muscle tone. He considered that the plaintiff was fit to work in his pre‑accident duties. He did, however, reiterate his earlier advice that an exercise program would be of benefit to the plaintiff and considered that activity was the best way of addressing psychological problems. Apart from the latter comment, he gave no further evidence about the plaintiff's psychological condition and its impact on his physical symptoms.
Professor Harper is an occupational physician who examined the plaintiff at the request of his solicitors on 26 March 2001. He outlined the plaintiff's symptoms as recounted to him as follows:
"Neck pain is felt from behind both ears extending down the lateral and posterior aspects of his neck. Pain is sharp and occurs intermittently. Pain occurs approximately 3‑4 times per week and can last for several hours. First thing in the morning he has neck pain and stiffness which improves with movement and a hot shower but can recur later in the day. Pain radiates to the right shoulder, arm and hand. Arm pain is sharp and is associated with exacerbations of neck pain. There is constant weakness in the right arm. He has right sided low back pain extending into the buttock and thigh. This is an uncomfortable constant pain which is worst first thing in the morning and at night. He feels depressed and worthless. He is irritable and he said that his family suffers. He feels a prisoner in his own household. He prefers to be alone. He has lost his libido. He cries on occasions. He is forgetful and he reports being fearful of further injury. He gets episodes of dizziness which last for 1‑1½ minutes which occur once per fortnight or every three weeks. He does not fall. These episodes resolve on sitting down. He experiences pain in the volar aspect of the right wrist on gripping which is relieved by rest and holding the arm dependent. Pain is accompanied by numbness in the hand.
Neck pain is aggravated by sharp movements, the head‑down position and lifting and carrying (discontinued). He gets relief from a hot shower, lying down and uses of Dencorub. Low back pain is aggravated by any activity including bending and lifting and walking. He gets relief from medication, Dencorub, Voltaren Cream and rest. Wrist symptoms are aggravated by gripping and relieved by hanging the hand dependent.
Pain and mood changes are not changing but he feels generally progressively worse."
He also referred to the plaintiff's fear of driving any long distances and him being unable to forget the image of the defendant who was a big man with tattoos.
Professor Harper considered that the plaintiff's condition has been complicated by "symptoms of depression". He considered that the plaintiff will not regain his capacity to return to his pre‑accident work. However, he believed that the plaintiff will regain some work capacity in the future. He was of the view that the plaintiff's employability is "extremely low given his age and the nature of his past work experience".
Dr Silver testified via video link from Melbourne. He is an occupational physician. He assessed the plaintiff at the request of the defendant's solicitor once on 8 December 2000. His physical examination took 10 or 15 minutes. He testified that although he had reports from other specialist who had examined the plaintiff, he based his opinions on the history he took from the plaintiff and his own physical examination.
Dr Silver was of the view that his examination findings revealed "a chronic pain syndrome/somatiform disorder that has dubious if any organic basis", "a manifestation of abnormal illness behaviour, with his symptom complex bearing no relationship to anatomical and physiological function". He seemed to base this opinion on the plaintiff's voluble expressions of pain on "gentle" palpation of various parts of his body; on the fact that active leg raising when lying on the examination table was limited to 50 degrees on both sides but that the plaintiff "was able to sit on the edge of the table and have full knee extension on both sides with no symptoms or change of posture"; and the observation that the plaintiff "redressed easily and quickly".
Dr Silver was prepared to acknowledge that an aggravation of the degenerative changes in the cervical spine "is the only physical injury that could conceivably [be] assessed as having any on‑going effects" and rated it 0 per cent impairment by reference to the AMA (4) category 1 impairment using Table 3.73 of the reference. He reluctantly assessed no more than a 5 per cent disability with respect to the cervical spine. He considered that the plaintiff was capable of driving up to 200 kilometres per day and of lifting loads of up to 25 kilograms occasionally. In summary, he considered that the plaintiff had "no physical incapacity for ergonomically sound physical activities".
Despite his protestations that he based his opinion on his physical examination of the plaintiff, Dr Silver clearly considered that the accident was a minor one which was only capable, in effect, of giving the plaintiff a jolt which caused some soft tissue injury to his neck from which he should have recovered within weeks or months of the accident. His assessment of the severity of the impact was based largely on the amount of damage to the van which he noted as $3,000 and which he considered reflected only minor damage, apparently based on his personal experience. His noted history of the accident made no reference to Dr Bell's findings of the bruising which existed six weeks after the accident. I find that Dr Silver did not have an accurate and comprehensive account of the accident upon which to base his opinion as to its severity.
Dr Silver noted Dr Finlay‑Jones' opinion that there was no psychiatric impediment to the plaintiff returning to the workforce. However, beyond making reference to Mr Schneider's reports (unspecified) there was no evidence that he considered Mr Schneider's opinion. He was not questioned by either party as to the effects of depression or any other mental condition on the plaintiff's presentation on examination nor as to his capacity to work. However, he was of the view that there was a psychological cause of the plaintiff's symptoms.

The plaintiff's mental condition

Some of the doctors mentioned above (for example, Dr Lee, Dr Saunders and Dr Home), expressed the view that they did not believe that the plaintiff was suffering from, in effect, clinical depression. However, there was no attempt to qualify these witnesses to express an opinion in this regard and accordingly, I attach little, if any, weight to their opinions as to the plaintiff's psychological or psychiatric state.
The plaintiff was referred to Mr Schneider, a clinical psychologist, by Mr Gee and was first seen in August 1999. This was to address the plaintiff's level of pain behaviour and his high levels of anxiety and fear of driving. By then the plaintiff had already undergone a pain management program which he did not consider had helped him. Mr Schneider described the plaintiff as then still being very focussed on the accident. He said that the plaintiff reported flashbacks in the weeks following the accident and in August 1999 continued to experience "quite some preoccupation with the event". According to Mr Schneider, his job loss substantially increased the plaintiff's level of stress. The plaintiff reported in August 1999 that he experienced considerable anxiety when driving. The results of the Beck Depression Inventory conducted on 12 November 1999 returned a high score suggestive of severe depression. Mr Schneider stated that the plaintiff had:
"A sense of hopelessness and failure; a general loss of interest and pleasure with people and activities; fatigue; a sense of being punished; difficulties in decision making; increase in irritability and sleep difficulties. He also complained of poor concentration and a reduced capacity to communicate effectively with people. He found he had no motivation any longer. The chronic pain in his arms and hands as well as dizziness was frequently mentioned. Whenever Mr Jankulovski talked of the accident, he became frustrated and upset, and would also experience pain in his chest. He had lost confidence driving, both because of his pain experience and dizziness. He reported that his marriage had been affected both because of his lack of interest in sexual relationships, and because of his general irritability and tendency to argue. Attempts at rehabilitation had only served to exacerbate his distress, as he regarded the activities given for the work trial to be demeaning and humiliating, especially given his intellectual capacities."
Re‑testing of the plaintiff on 21 January 2000 revealed a marginal improvement in the level of depression although it would still be regarded as severe.
Mr Schneider was of the view in January 2000 that the plaintiff was then clearly depressed. He based this on his clinical presentation and the testing he had administered. Further, he was of the view that the plaintiff's symptoms were suggestive of post traumatic stress disorder as describes in the DSM‑IV. From a psychological perspective, Mr Schneider was of the view that the plaintiff was totally unfit for work as a salesman up until his consultation on 21 January 2000.
Mr Schneider had seen the plaintiff on a six‑weekly basis until January 2001. He testified that the plaintiff's condition had remained stable. He remained depressed. He was very upset and agitated about the accident and continually expressed anger about it. That left him "locked into" the circumstances of the accident. Mr Schneider tried to "shift" the plaintiff's understanding about this but did not have much success.
A report prepared by Dr Finlay‑Jones, a psychiatrist, was tendered on behalf of the defendant. Dr Finlay‑Jones conducted a psychiatric assessment of the plaintiff on 18 August 2000 for the purpose of a "psychiatric opinion". The report outlined that plaintiff's personal and work history, the circumstances of the accident, the "psychiatric consequences" of the accident as recounted by the plaintiff, the physical consequences of the accident and the psychiatric opinion. Apart from the opinion, the other information accords substantially with what other medical practitioners had been told. The relevant parts of Dr Finlay‑Jones' opinion as to the plaintiff's psychiatric state as at August 2000 are as follows:
"When I examined him, his blood pressure (154/80) and pulse (80/minute) were normal. His brow was furrowed. His face was not tense, his legs were not crossed, his palms were not perspiring, there was no tremor of the outstretched fingers, and he did not hyperventilate. I concluded that there was no evidence of anxiety at the time of examination.
He cried during the interview, but he also laughed at times. He did not sign, his eyes were not downcast, his mouth was not down-turned, his speech was not slow, there was no evidence of psychomotor agitation or retardation, and he did not spontaneously express ideas of hopelessness or suicide. I concluded that there was no evidence of depression at the time of the examination.
...
From the psychiatric point of view, he seems to have recovered substantially from symptoms of depression that began after his accident. I could find no evidence of depression or anxiety at the time of the examination.
...
I think he did suffer a moderate depressive illness after the accident, but he has now recovered without the need of antidepressants. There is no permanent disability and he is fit for full time work from the psychiatric point of view."
Dr Finlay‑Jones gave no explanation for his opinion that "there was no evidence of depression at the time of the examination". I assume that he based this view on the plaintiff's presentation to which he referred in his report. Further, he gave no explanation for his view that the plaintiff has "no permanent disability ... from the psychiatric point of view".
Mr Schneider testified that he disagreed with Dr Finlay‑Jones' opinion. Mr Schneider testified that Dr Finlay‑Jones did not specifically refer to the indicators of depression outlined in the DSM‑IV. He said that Dr Finlay‑Jones only referred to three of the nine factors mentioned in the DSM‑IV in outlining the plaintiff's presentation and that to diagnose a major depressive episode, five of the nine factors should be identified. It is reasonable to infer that Mr Schneider applied the relevant criteria in the DSM‑IV when coming to his opinion.
In my view, in determining which opinion is to be preferred, nothing of significance turns on the respective expertise of the two men. I found Dr Finlay‑Jones' report to be relatively superficial and it lacked reference to the foundation for his opinion. Further, Dr Finlay‑Jones only saw the plaintiff once and not for therapeutic purposes.
I prefer the opinion of Mr Schneider. He had treated the plaintiff from 20 August 1999 until early 2001 on a six‑weekly basis. He therefore had ample opportunity to opportunity to observe and assess whether the plaintiff's symptoms were consistent and reliable and whether there was a shift in his presentation from one session to another. He was not tested in cross‑examination relevant to the validity of his opinion. I have no reason to doubt it notwithstanding the conclusions reached by Dr Finlay‑Jones about which I have already commented.

Mr Gee referred the plaintiff for psychological treatment. Mr Gee was concerned about the plaintiff's levels of anxiety and fear of driving as well as his level of pain behaviour. He considered that these factors "suggest that psychological factors are still having a fairly significant role in the maintenance of his symptoms" and thus referred him to Mr Schneider. Dr Saunders reported that as at January 1999 the plaintiff was in a "state of confusion and depression". He considered that he needed "adequate counselling" and an activity program. In March 1999, Dr Home opined that although the plaintiff "did not appear to suffer from a psychiatric disorder ... and his mental state [did] not reflect depressive illness" (an opinion he was not qualified to give), he did consider that he "may be experiencing adjustment disorder following his accident and in particular, his retrenchment from his employment".
The defendant contends that the plaintiff's depression was caused by the dismissal from his job and not by the accident. I have already found that the dismissal was causally related to the accident. The first note of the plaintiff's depression is on 1 September 1998 in a medical certificate signed by Dr Norcott. He was thereafter referred to Dr Srna. By September 1998, the plaintiff had experienced pain and other symptoms for seven months. He was suffering the effects of dismissal in terms of lowered self‑esteem and frustration of his desire to return to work. It is not unreasonable to infer that his diagnosed and unchallenged depression gradually developed. I am satisfied that the plaintiff's depression is causally related to the accident.
In summary, I am of the view that at some stage (at the latest by September 1998) the plaintiff developed clinical depression as outlined by Mr Schneider and that this was related substantially to the accident although his dismissal from his job had a part to play. Further, I find that the plaintiff's depression contributed to his ability to cope with his physical condition.

Work trials

The plaintiff testified that he did a work trial at Paolis Pasta for two weeks in August or September 1998. This involved him counting knives and forks into plastic bags. He found this work to be depressing and demeaning and said that he could not cope with it. He was also trialed at the Pasta Kitchen packing pasta into one kilogram bags. However, he testified that he could not cope with that as he was unable to stand at the table and experienced pain in his back and arm. He then underwent a rehabilitation exercise program at Sir Charles Gairdner Hospital for five weeks in or around December 1998 but that did not help. He was again trialed at Pasta Kitchen in early 1999 but this was also unsuccessful. He was offered sales work at Pasta Kitchen but said that he was not capable of going on the road. This was the extent of his work since he was dismissed from his job.
There was no evidence that the plaintiff could not physically undertake the work at Paolis Pasta. I find that at that stage, the plaintiff was capable of such menial tasks at least on a part time basis. However, it is difficult to assess whether he would have been able to work on a continuing basis. The evidence is to the effect that he found the tasks at Paolis Pasta demeaning. However, there is no evidence that his psychological state contributed to his intolerance of the work.

Causation

I have no doubt whatsoever that the plaintiff had pre‑existing degeneration to the C5/6 level of his spine. I accept his evidence, which is confirmed by Dr Norcott, that this was asymptomatic before the accident. I accept the plaintiff's evidence that following the accident, he developed the symptoms described by him. I have found the plaintiff's depression to be causally related to the accident.
The decision of the High Court in Medlin v State Government Insurance Commission (1995) 182 CLR 1 at pp 6‑7 provides the leading exposition on the issue of causation as follows:
"For the purposes of the law of negligence, the question whether the requisite causal connexion exists between a particular breach of duty and particular loss or damage is essentially one of fact to be resolved, on the probabilities, as a matter of commonsense and experience (16). And that remains so in a case such as the present where the question of the existence of the requisite causal connexion is complicated by the intervention of some act or decision of the plaintiff or a third party which constitutes a more immediate cause of the loss or damage. In such a case, the "but for" test, while retaining an important role as a negative criterion which will commonly (but not always) exclude causation if not satisfied, is inadequate as a comprehensive positive test (17). If, in such a case, it can be seen that the necessary causal connexion would exist if the intervening act or decision be disregarded, the question of causation may often be conveniently expressed in terms of whether the intrusion of that act or decision has had the effect of breaking the chain of causation which would otherwise have existed between the breach of duty and the particular loss or damage. The ultimate question must, however, always be whether, notwithstanding the intervention of the subsequent decision, the defendant's wrongful act or omission is, as between the plaintiff and the defendant and as a mater of commonsense and experience, properly to be seen as having caused the relevant loss or damage. Indeed, in some cases, it may be potentially misleading to pose the question of causation in terms of whether an intervening act or decision has interrupted or broken a chain of causation which would otherwise have existed. An example of such a case is where the negligent act or omission was itself a direct or indirect contributing cause of the intervening act or decision."
There is conflicting medical opinion as to whether the plaintiff's symptoms are genuine. Those opinions range from that expressed by Dr Lee, Dr Norcott, Professor Mastaglia and Dr Harper that the plaintiff does suffer a degree of permanent disability to those expressed by Dr Home, Dr Saunders and Dr Silver that the plaintiff is fit to resume his pre‑accident work. In determining which body of medical evidence to accept, it is not a question of counting up those opinions for and against a particular proposition. Notwithstanding the imminence of those medical specialists called by the defendant, I prefer the evidence of those called by the plaintiff. To a large extent, this is because of the reliability I place on Dr Norcott's evidence who has had the opportunity of treating the plaintiff both before and after the accident and who has seen him more than 50 times since the accident. If the plaintiff had been exaggerating or feigning his symptoms, I consider that Dr Norcott would have picked this up. However, his evidence is to the effect that the plaintiff's condition has remained virtually unchanged since the accident. Further, his mental state has deteriorated and this had effected his prospects of coping with his pain. I also place great reliance on the evidence of Mr Schneider who also would have been able to identify any feigning or malingering and did not do so.
The plaintiff has proved that even though he had a pre‑existing degeneration of the cervical spine, he was able to lead a pain free, active life both in his working and his domestic/social life. His enjoyment of life was not impaired at all by that condition. He has proved that following the accident he suffered pain in the neck, shoulder and arm and in his lower back. His overall quality of life has deteriorated. Further, he proved that he developed anxiety about driving.
I am not satisfied that it is more probable than not that the plaintiff's lower back pain was caused by the accident. Given that he told two doctors (Dr Saunders and Dr Home) that he believes he injured his back when lifting at work and that he did not complain about this pain until sometime after May 1998, I find that that is the more probable cause.

The plaintiff's work capacity

Despite the number of medical witness called in this trial, there was no consistency in their assessment as to the plaintiff's degree of disability or incapacity. The percentages and bases for assessment varied. It appears that only Dr Norcott and Dr Silver used the same reference to assess impairment. A summary of the doctors' opinion include Dr Lee: 30 per cent total body impairment; Dr Norcott: 10 per cent total body impairment; Dr Gee: 20 per cent and 15 per cent residual disability of the neck and shoulder respectively; Mr Bell: 10 per cent loss of the full efficient use of the neck; Dr Silver: (at most) 5 per cent disability of the cervical spine. I do not find these percentages particularly helpful. Suffice to say that all medical witnesses are of the view that the plaintiff suffers some degree of impairment.
The defendant's case was conducted with a view to establishing that the plaintiff's symptoms were exaggerated or fabricated. Various medical witnesses testified that pain is subjective and that medical practitioners usually accept what the patient tells them about levels of pain. Dr Silver and Dr Home testified that the plaintiff's presentation on examination did not support his complaints of pain on examination.
Professor Harper testified that he looks to see how consistent and biologically reasonable the plaintiff's symptoms are given the incident, given the duration of time over which the symptoms are reported and given the results of investigations. In the plaintiff's case he did not find those to be inconsistent. He found that what the plaintiff reported was medically coherent and quite reasonable.
Dr Norcott agreed that the complaints of pain are subjective. However, on physical examination, he looks for gross inconsistencies which might throw some doubt on the subjective complaints. As previously observed, Dr Norcott has seen the plaintiff on over 50 occasions since the accident, far more than any other medical witness. Further, had treated him for five or six years before the accident. He noted that the plaintiff's physical symptoms did not improve and that his mental state deteriorated. I place considerable weight on Dr Norcott's evidence.
It was contended on behalf of the defendant that the plaintiff was certified fit for work on 3 April 1998, that he worked without interruption until he was dismissed on 15 May 1998 and that from then on he was not incapacitated from working, that his symptoms were feigned and any depression or other psychological condition was the result of his dismissal and not the accident. Dr Norcott's evidence is that the plaintiff attempted to make an appointment to see him on 15 May 1998 but he was fully booked and unable to see him until 18 May 1998. This might appear to be rather coincidental. However, the evidence is unchallenged albeit hearsay. (I observe in passing that there was a considerable amount of hearsay evidence adduced from various expert witnesses not otherwise proved and which was, almost without exception, unchallenged by either party. I raised this with counsel both of whom seemed to accede to a proposition that this is inevitable in personal injury cases with the point not usually being taken.)
I find that the plaintiff does suffer from an aggravation of his pre‑existing degeneration in his cervical spine caused by the accident. To the extent that his symptoms appeared to some of the experts to be overstated, I put this down to the debilitating depression from which the plaintiff has suffered since a few months after the accident.
It may be that, to some extent his dismissal from his job was a factor impacting his depression, but it is an impossible task to determine that extent precisely. In any event, I have found that the accident and its effects on the plaintiff was a significant reason for his dismissal. Given the symptoms described to medical practitioners of anxiety about driving and his pre‑occupation with the accident, I find that the plaintiff's depression was caused by the accident to a significant extent. I refer to Watts v Rake (1960) 108 CLR 158 per Dixon J at 160:
"If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributing cause."
Insofar as the plaintiff's depression is concerned, the defendant has not discharged this onus.
The plaintiff has worked virtually since 15 years of age as a manual labourer. He has limited education. His only work as a salesman was when he was employed at Midland Trading. It seems he was employed there because he had some contacts who might become customers. However, he was unsuccessful in generating new customers although Mr Muriale had no complaints about his general sales work. The plaintiff can speak English but it is clearly not his first language and he has understandable difficulties in expressing himself and at times understanding the import of questions. He can read English but cannot write it very well. He is now 50 years old. The medical evidence supports a finding that he is incapable of performing heavy manual labouring of the sort he did when at the Water Authority.
The medical opinions are divided as to whether the plaintiff is capable of driving to the extent that he did in his pre-accident employment. However, despite the restriction in neck movement and neck pain, I am of the view that he is capable of driving, although not to the extent that he did when employed by Midland Trading. He may have to take breaks and care when turning his head but overall there is no absolute physical incapacity preventing him from driving. However, his depression and anxiety about driving impact quite significantly on his ability to cope with driving.
I am also of the view that the plaintiff was capable of performing menial tasks on a part time basis from late 1999 when he undertook his work trial at Paolis Pasta.
The plaintiff's opportunities for obtaining work are extremely limited given his age, education, language difficulties, work experience and history of neck pain. At best the plaintiff might be able to obtain work driving a van for a few hours a day or performing some menial task such as undertaken by him at his rehabilitation work trials. Where a plaintiff is not fit for his pre‑accident employment but is fit for other employment, it is for the defendant to prove the availability and remuneration of that other employment: Bowen v Tutte [1990] A Tort Rep 81‑043; Thomas v O'Shea (1989) A Tort Rep 80‑251. In this case, the defendant conducted his case on the basis that the plaintiff was fit for his pre‑accident employment from 3 April 1998. There as no evidence adduced on behalf of the defendant to discharge this onus.
In cases such as this, it is always difficult to determine the percentage of retained earning capacity. However, taking into account the factors I have mentioned, I am of the view that the plaintiff now has a 50 per cent retained earning capacity. The evidence supports a finding that the work at Paolis Pasta was in or around September 1998. The plaintiff may have been physically capable of doing the work at Paolis Pasta on a part time basis. However, there was no evidence as to whether such work was available to him given his injuries, depression and matters otherwise personal to him.

Damages

These are my findings as to damages:
(i)Past economic loss
The plaintiff was totally incapacitated from performing any work for a period of six weeks (rounded up) on the basis of the medical certificates as follows: 9 February 1998 to 27 February 1998; 9 March 1998 to 3 April 1998. The plaintiff was physically capable of performing menial tasks of the sort he performed at Paolis Pasta from around 1 September 1998. However, there is no evidence that such work was available to him. Accordingly, I consider that he lost his earning capacity from 18 May 1998 to say 31 August 2001. The plaintiff has lost his past earning capacity for a total of 173 weeks.
(ii)Contingencies
I accept the evidence of Mr Muriale that he was not satisfied with the plaintiff's work insofar as it involved generating new customers. Although Mr Muriale testified that he did not speak to the plaintiff specifically about dismissal, I accept that he did tell the plaintiff that "something" would have to be done about his work. In my view, there was a real chance that the plaintiff would have been dismissed from his job even if the accident had not occurred. It is difficult to determine when this would have happened. There is no evidence to support a finding that the plaintiff's degeneration of his cervical spine would have become symptomatic at some stage. However, there is some evidence that the plaintiff would not have been capable of performing heavy labouring work because of the previous injury to his knee.
The evidence established in my view that the contingencies of life for this plaintiff were and are more likely than not to be adverse.
The general rule is that the standard rate of discount for contingencies in this State will be in the vicinity of 2 per cent to 6 per cent: Foyster v Goynich [1984] WAR 80 at 81; Black v Motor Vehicle Insurance Trust [1986] WAR 32 at 34; Bowen v Tutte (supra); Kember v Thackrah [2000] WASCA 198. In my view, the appropriate discount for contingencies both for past and future economic loss should be 15 per cent. In exercising my discretion in fixing this amount, I take into account all matters personal to the plaintiff which I have mentioned above.
(iii)Past economic loss
$586 (gross) x 173 weeks  $101,378
Less 15% contingencies  $ 15,207
Total  $ 86,171
(iv)Past loss of superannuation
The basis of the calculation is agreed:
$86,171 x 7.5% x 70%  $4,524
(as per Jongen v CSR Ltd & Anor (1992) A Tort Rep 81‑192; Villasevil v Pickering [2001] WASCA 143.)
(v)Future loss of earnings
The claim for loss of future earnings is based on the plaintiff working until he is 65 years old. There is no evidence as to how long the plaintiff intended to keep working. There is no evidence as to the plaintiff's financial situation at the time of the accident from which an inference might be drawn that the plaintiff would have the financial need to work until 65 years old. The defendant's counsel did not take the point and I take it there is agreement that the plaintiff would have worked until he was 65 years old.
The plaintiff is aged 50.75 years. The "lost" years to age 65 years are 14.24 years. I have found there to be a 50 per cent retained earning capacity. The relevant multiplier is 505. The net wage is agreed at $450.
$450 x 505  $227,250
Less retained earning capacity of 50%        $113,625    $113,625
Less 15% contingencies  $ 17,044
Total  $ 96,581
(vi)Future loss of superannuation
Agreed basis of calculation as for past loss of superannuation:
$96,581 x 9% x 70%  $6,085
(vii)Future medical expenses
The plaintiff claims the sum of $10,000 for future medical treatment. There was no attempt to explain the basis of this figure. Dr Harper was of the view that the plaintiff requires on going surveillance by a general practitioner as his pain and depression requires treatment. Professor Mastaglia considered that it "is probable that [the plaintiff] will require further treatment including massage, physiotherapy or injection procedures to the neck and right shoulder in the future" but he was unable to estimate the cost. The plaintiff still requires some medication for pain. There was no evidence as to the cost of this. Dr Norcott opined that the plaintiff would probably need to see a doctor once or twice a month at a cost of around $80 (based on the number of times the plaintiff is consulting him). He also considered that the plaintiff would need hydrotherapy at a cost of $10 per supervised session and occasional psychological treatment. On balance, I am of the view, in the absence of cogent evidence to support the amount of the claim, that it is reasonable to make a modest global award for future medical costs in the sum of $2,500.

Non‑pecuniary loss

Non‑pecuniary loss is limited by the provisions of s 3C of the Motor Vehicle (Third Party Insurance) Act 1943. The maximum amount that may be awarded is $232,000 (prescribed). Section 3C(2) provides that:
"The amount of damages to be awarded for non‑pecuniary loss is to be a proportion, determined according to the severity of the non‑pecuniary loss, of the maximum amount that may be awarded."
The "maximum amount" to be awarded (namely $232,000) is to be awarded "only in a most extreme case" (s 3C(3)). The court must therefore compare this case with "a most extreme case" and decide what proportion of $232,000 is to be awarded on that basis.
I take, for example, a case of quadriplegia as being a most extreme case. "Non‑pecuniary loss" is defined in s 3C(1). In this case it relevantly means pain and suffering; loss of amenities of life; loss of enjoyment of life; and bodily or mental harm.
The plaintiff suffers a degree of permanent injury to his cervical spine. This became symptomatic after the accident. He has suffered pain and discomfort since the accident. Usually this resolves with this sort of injury. However, in the plaintiff's case, his depression has had an effect on his recovery and his perception of pain. He no longer enjoys the social life he had prior to the accident and his relationship with his wife and children has deteriorated since the accident. It is more probable than not that, over time, the plaintiff's depression and pain will subside. On balance, I determine the plaintiff's non‑pecuniary loss to be 15 per cent of a most extreme case, being a sum of $34,800. Pursuant to s 3C(5), I deduct the sum of $11,500 from the amount of damages awarded. Accordingly, the award for non-pecuniary loss is $23,300.

Summary of damages

Agreed treatment expenses paid


as workers compensation  $ 28,859
Past loss of earnings  $ 86,171
Past loss of superannuation  $    4,524
Future loss of earnings  $ 96,581
Future loss of superannuation  $    6,085
Future medical expenses  $    2,500
Non-pecuniary damages  $ 23,300
Total  $248,020