Karamanlidis v The Nominal Defendant & the Motor Accident Commission - [2009] SADC 106

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
KARAMANLIDIS v THE NOMINAL DEFENDANT & THE MOTOR ACCIDENT COMMISSION
[2009] SADC 106
Judgment of His Honour Judge Beazley
16 October 2009
TORTS - NEGLIGENCE - ROAD ACCIDENT CASES - ACTIONS FOR NEGLIGENCE
Motor vehicle accident - proceedings issued by plaintiff as passenger against his wife as driver and against the Nominal Defendant pursuant to s115 of the Motor Vehicles Act 1959 (SA) - plaintiff alleges unidentified truck collided with rear of his wife's vehicle causing the latter vehicle to collide with the rear of a stationary third vehicle - issues at trial included whether the plaintiff was in fact present in the motor vehicle driven by his wife at the time of the accident; and whether the unidentified truck had made contact with the vehicle driven by his wife - independent witnesses called by defendants assert that plaintiff's wife was the sole occupant of the car at the time of the accident. Held: Plaintiff was passenger in the rear of his wife's vehicle at the time of the collision - independent witnesses mistaken - the injuries sustained by the plaintiff solely caused in collision between the plaintiff's wife's vehicle and the stationary third vehicle - unidentified truck did not immediately cause any injury sustained by the plaintiff - however the accident caused by the negligent driving of both the driver of the unidentified truck and the plaintiff's wife - liability apportioned as to 50% each - judgment for the plaintiff against the defendants in the sum of $40,786.52.
Motor Vehicles Act 1959 (SA) ss 115 & 125a, referred to.

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES
Assessment of damages - minor accident on 16 September 2003 - aggravation of pre-existing lower back injury with left leg sciatic symptoms - such symptoms gradually diminishing to manageable level by end of 2006 - increase in residual loss of function of lumbar spine of 7.5% - Past economic loss reflects loss of opportunity to use Long Service Leave and Sick Leave - implied agreement that plaintiff take Long Service Leave - plaintiff estopped from relying on absence of notice under the Act - Non-economic loss $9,200 - past economic loss $4,700 - future economic loss $20,000 - special damages $6,586.52 - future medicals $300.
Wrongs Act 1936 (SA) s 24B; Long Service Leave Act (1987) (SA) s 7, referred to.

EVIDENCE - ADMISSIBILITY AND RELEVANCY - OPINION EVIDENCE - EXPERT OPINION
Consulting engineer purporting to give opinion evidence as to "ultimate" issue of liability and to engage in speculation as to possible human reactions.
O'Brien v Gillespie (1996) 41 NSWLR 549; Dyson v Pharmacy Board of NSW (2000) 50 NSWLR 523; Hillier v Lucas (2000) 81 SASR 451 at 491, considered.

EVIDENCE
A more cautious approach as to the acceptance of a plaintiff's evidence must be taken in cases where a defendant driver is unidentified.
Turner v Nominal Defendant [2008] QSC 138; Eaton v Nominal Defendant (1995) 21 MVR 357; Freeman v Griffiths (1976) 13 SASR 494, considered.

KARAMANLIDIS v THE NOMINAL DEFENDANT & THE MOTOR ACCIDENT COMMISSION
[2009] SADC 106
Introduction

The plaintiff, claims damages for personal injuries allegedly sustained by him as the back seat passenger in a white, 1985 model, Ford Laser motor vehicle (“the Ford Laser”) driven by his wife Fiona Karamanlidis (the plaintiff’s wife) in a southerly direction on Main North Road, Brahma Lodge at about 3.20pm on 16 September 2003.
Liability for the plaintiff’s claim was denied by the Nominal defendant and the Motor Accident Commission.
What was not in dispute was that:-
·the Ford Laser collided with the rear of a stationary Volvo sedan (the “Volvo”),
·the collision between those two vehicles occurred in the left hand lane of the two lanes for south bound traffic on Main north Road,
·to the left of the subject left hand lane was a gravel verge.
What appeared, prima facie, to be a relatively simple rear end motor vehicle collision, has resulted in two sets of proceedings in which the plaintiff has alleged the involvement of an unidentified truck in the collision, and the defendants have alleged that the plaintiff has falsely represented that he was present in the Ford Laser at the time of the collision.
The questions of liability and the assessment of damages are somewhat further complicated by the plaintiff’s unfortunate history of accidents which pre-date the subject motor vehicle accident.
The Proceedings
·In Action no 263 of 2006 the plaintiff and his wife instituted proceedings against the Nominal Defendant (the first defendant) pursuant to s115 of the Motor Vehicle Act, 1959; (“the Act”) alleging that the driver of an unidentified white truck, also travelling in a southerly direction along Main North Road towards the intersection with Clayson Road, Brahma Lodge, negligently collided with the rear of the Ford Laser, pushing the latter vehicle into the rear of the Volvo Sedan in which Edward John Wittup was the driver and his wife Annie Wittup was the front seat passenger. The plaintiff and his wife asserted that they each respectively sustained personal injuries in the accident, caused by the unknown driver of the truck. The plaintiff’s wife had asserted that she had sustained a burning pain in the neck with “tingling” down into her left arm.
By Notice dated 20 September 2006 the plaintiff’s wife discontinued her action against the Nominal Defendant. The Court was not informed about the basis of that discontinuance.
·In Action no 1027 of 2007 the plaintiff instituted proceedings against his wife for negligently colliding with the rear of the Volvo Sedan. Prior to trial the Motor Accident Commission (the second defendant) was substituted as the defendant in lieu of the plaintiff’s wife pursuant to s125a of the Act.
By order of a Master made on 26 July 2007 the respective proceedings were consolidated and accordingly a consolidated amended Statement of Claim was filed by the plaintiff to which the first and second defendants filed their respective defences.
The Pleadings
The Plaintiff
In his Particulars of Claim the plaintiff pleaded that the driver of the unidentified truck failed to allow sufficient distance to avoid the collision with the Ford Laser; and similarly as against his wife in respect of her failure to allow sufficient distance from the stationary Volvo. The plaintiff set out in great detail in paragraph 11 of the Particulars of Claim, the alleged personal injuries, losses and damages sustained by him in the accident. No evidence was led as to an alleged injury to the upper back or thoracic spine.
Ultimately the evidence adduced by the plaintiff was directed to alleged injuries to his lower back and left leg including the aggravation of pre-existing injuries to those areas.
The plaintiff claims for non-economic loss, past and future loss of earning capacity; past and future medical expenses and for voluntary assistance from his wife.
The Nominal Defendant in its defence:
·       asserted that the plaintiff has falsely represented that:
-       he was a passenger in the Ford Laser at the time of the collision with the Volvo sedan
-       the unidentified white truck collided with the rear of the Ford Laser
·       “acknowledged” that the unidentified white truck had been travelling behind the Ford Laser but denied that it was involved in any collision.
·       admitted that the Ford Laser collided with the rear of the Volvo sedan, but asserted that the collision was caused solely by the negligence of the plaintiff’s wife.
·       denied that it was liable to the plaintiff as alleged by him or at all.
·       alternatively asserted that if the plaintiff was such a passenger at the time of the collision:-
-       the force of any alleged collision was so minor that it was not causative of any injury
-       any disability is due wholly or partly to pre existing lower back injuries sustained in the 1980’s or 1990’s.
-       the plaintiff has sufficiently recovered from his injuries so that there is no loss of earning capacity nor need for future treatment.
The Nominal Defendant’s pleading that the plaintiff had not undertaken due search and enquiry required by s 115 of the Act was abandoned by it at trial.
The Motor Accident Commission in its defence:
·denied that the plaintiff was a passenger or otherwise present in the Ford Laser at the time of the collision.
·       “acknowledges” that a white unknown truck was travelling in the same direction as the Ford Laser but denied that it was involved in any “aspect of this collision”.
·       although not directly pleading to the allegation of negligence against the plaintiff’s wife, asserted that the accident was the consequence of the Ford Laser having collided with the rear of the stationary Volvo sedan.
·       asserted in the alternative that:
-       the force of the collision with the unidentified white truck was so minor that it could not be causative of the plaintiff’s alleged injuries.
-       any injuries were caused by the collision between the Ford Laser and the Volvo Sedan.
-       the plaintiff has sufficiently recovered from his injuries so that he does not suffer from any pain, loss of amenity, nor impairment of working capacity.
-       any injury or loss of capacity is due wholly or partly to pre-existing lower back injuries which were sustained in the 1980’s and 1990’s.
No contribution notices appear to have been filed by the respective defendants.
Issues
The issues for determination are:
·       was the plaintiff an occupant in the Ford Laser driven by his wife at the time of the collision on 16 September 2003?
·       did the plaintiff’s wife drive in a negligent manner in colliding with the rear of the Volvo Sedan?
·       did the alleged unidentified white truck collide with the rear of the Ford Laser?
·       if the alleged unidentified white truck did collide with the rear of the Ford Laser, was that collision causative of the plaintiff’s alleged loss or damage?
·       alternatively did the driver of that truck drive so close to the rear of the Ford Laser that in effect that driving was a cause of the accident, and the consequential injuries sustained by the plaintiff?
·       has the plaintiff suffered any loss or damage in consequence of the motor vehicle accident – whether caused by the negligent driving of the plaintiff’s wife or the unidentified driver of the white truck or both?
·       what is the proper basis upon which to assess the plaintiff’s claim for damages? In particular was the plaintiff significantly impaired for a period of at least seven days.
The principal issues in the trial were whether the plaintiff had, in fact, been present in the Ford Laser at the time of the accident: and if so, whether he had misrepresented both his pre-accident disabilities, and the extent of the alleged disabilities sustained by him in the subject accident.
There is however no doubt, as I have said, that the Ford Laser, driven by the plaintiff’s wife, did collide with the rear of the stationary Volvo sedan driven by Edward John Wittup. The photographs, in Exhibit P1, disclose obvious damage to the front panel and fender of the Ford Laser; and superficial damage in the nature of a minor dent and scraping marks to the rear bumper bar of the Volvo Sedan. In dispute however is whether any contact was made by the unidentified white truck with the Ford Laser. The photographs disclose a minor dent and scraping mark to the rear passenger side panel and bumper bar beneath the rear passenger side light. The latter damage was consistent with a minor side swipe, or alternatively previous parking damage.[1]
[1] Exhibit D1-3, report of Professor Gazebieta dated 21/12/06.
The defendants’ respective pleadings raise extremely serious allegations of a criminal nature against the plaintiff, and, inferentially, both the plaintiff’s wife and the witness Leandara Gay Copini, who deposed to the plaintiff’s presence in the Ford Laser.
The defendants principally rely for these serious allegations upon the evidence of Mr & Mrs Wittup, the occupants of the Volvo sedan with which the Ford Laser collided. The Wittups deny that the plaintiff was an occupant of the Ford Laser.
The defendants also allege that the plaintiff attempted to mislead both the Court and the expert medical witnesses as to the nature and extent of his pre and post-accident disabilities; and that this allegedly misleading conduct also reflects adversely upon his credit both as to liability and quantum.
During final addresses the respective counsel for the defendants submitted that if I were to find that the unidentified white truck had in fact made contact with the Ford Laser, then I ought find that that driving was not causative of the injuries allegedly sustained by the plaintiff. It was also faintly argued that if the plaintiff’s wife had been distracted by the white truck, and had acted “in the agony of the moment to avoid that vehicle”, then this would lead to a finding that the plaintiff’s wife was not negligent in the circumstances.[2]
[2] Transcript p 585-587. See Turner v Nominal Defendant (2008) QSC 138; March v Stramare (1991) 171 CLR 506 and Dominello v Nominal Defendant (2009) NSWCA 95.
The witnesses called by the plaintiff
The plaintiff and his wife Fiona Karamanlidis, both gave evidence. Leandara Gay Copini, gave direct evidence of the attendance by the plaintiff and his wife at her house at Hillbank on the day of the subject accident until they left in the Ford Laser with the plaintiff positioned in the rear passenger seat at about 3.00pm. From that evidence the plaintiff submits that the court should infer that the plaintiff remained a passenger in that vehicle when the collision occurred a short time later.
Sally Jane McKechnie, a bookkeeper employed by the plaintiff’s employer, gave evidence of her observations of the plaintiff both before and after the subject accident. She explained the manner in which payroll records were compiled by that employer. The consulting engineer, Christopher Hall, gave oral evidence in addition to the tender of his expert reports, detailing his opinions as to the probable effect of the impact as between the Ford Laser and the rear of the Volvo Sedan on the one hand; and the minor impact, if any, as between the unidentified white truck and the rear of the Ford Laser.
The medical practitioners, Nagi Guirguis; Orso Lorenzo Osti; and Alfred Joon Teng Ho and the physiotherapist Richard Fuller, each gave oral evidence as to the alleged injuries sustain by the plaintiff in the subject collision, in addition to the tender of their respective expert medical reports. A Vocational Assessment Report of the psychologist Chris Goulding was tendered without the need for him to be called as a witness. A bundle of medical reports by Doctors Butcher, Cohen, and Cleland of various dates in 1992 and prepared in respect of pre-accident injuries sustained by the plaintiff were tendered, and marked as Exhibit P23.
On the topic of medical practitioners, the Nominal Defendant called the neurosurgeon Glen McCulloch to give oral evidence in addition to the tender of expert medical reports prepared by him.
The medical practitioners respectively referred, inter alia, to the plaintiff’s history and in particular to pre-accident injuries sustained by him in 1989 and 1994. Some of these witnesses were cross-examined as to whether symptoms observed by them from time to time were consistent with his account of having been injured on 16 September 2003, particularly having regard to a video film of the plaintiff’s activities at a gymnasium some three years later on 16 and 23 September 2006.
A Schedule of Special Damages which was agreed between the parties as to the date of the treatment and the quantum of the same but not as to liability was tendered as Exhibit P24.
The witnesses called by the defendants
In addition to the neurosurgeon, Mr McCulloch, the Nominal Defendant called Raphael Grzebieta, the Professor of Engineering at the University of New South Wales, who gave oral evidence in addition to the tender of his expert report. Edward John Wittup and his wife Annie Wittup, the driver and front seat passenger, respectively, of the Volvo sedan were called to give direct evidence as to the accident and its immediate aftermath. The final witness called by the Nominal Defendant was an insurance investigator, Nicholas Kotenko, who was called to give evidence as to allegedly prior inconsistent statements made by the plaintiff and Fiona Karamanlidis on or about 12 November 2004.
The second defendant did not call any witnesses, but relied generally upon those witnesses called by the Nominal Defendant.
A synopsis of the evidence
In light of the serious allegations confronting the plaintiff and Fiona Karamanlidis it is necessary to set out a synopsis of the evidence.
Many of the direct facts were not in dispute, although the inferences sought to be drawn from them were canvassed at length in the respective submissions of counsel. Accordingly, the narrative of the facts in these reasons reflects my findings. Where matters have remained in dispute, I have made specific findings at the completion of the narrative.
As I have already indicated the respective counsel for the defendants skilfully attacked the plaintiff’s credit particularly with respect to pre and post accident symptoms. They asked me to find that at the least the plaintiff deliberately exaggerated parts of his evidence; and was untruthful about being present in the Ford Laser at the time of the accident.
I am conscious that it is necessary to consider the whole of the evidence including that directed to issues of quantum when assessing, in particular, the credit of the plaintiff.[3] It is not appropriate to look at one aspect of his evidence in isolation. I have not however found it necessary to detail all of the evidence as it would have resulted in these reasons being even more prolix.
[3] See Hillier and Carney v Lucas (2000) 81 SASR 451 at 462, per Lander J.
In reaching my conclusion on such matters as were in dispute, I have taken into account all of the arguments and submissions of counsel.
I commence the narrative with the circumstances of the alleged accident.
The subject accident
·The plaintiff said that on the day of the accident, he was not at work but had been driven by his wife in her Ford Laser, to lunch at the Hillbank home of Leandara Copini. He said that when they left the Copini house at abaout 3.00 pm, his wife was driving, and he was seated in the back left passenger seat holding a large vase of flowers. These flowers were about “3 foot high and 2½ feet wide”, and had been given to his wife by Ms Copini. He elected not to sit in the front passenger seat as his wife’s vision to the left would have been adversely restricted by the flowers.
He described his wife’s vehicle slowing down near the intersection of Main North Road and Clayson Street at Brahma Lodge as follows:-
Just before we actually went to a standstill, I heard some tyres on some gravel on the side, just on the side behind me and looked around and there was a truck there, and then all of a sudden the truck actually hit our car and then we just hit the car in front.
He described the truck as white in colour with no other identifying marks and he was unable to see the registration number nor the driver.
When cross-examined, he repeated that he saw “in a split second, the truck actually just clip the back of our car … and then our car actually went into other car in front.”
He said he was colour blind, and thus was unsure of the colour of the vehicle in front. He described it as a Volvo, which had been stationary, and positioned directly in front of his wife’s vehicle. He said that following the collision his wife then followed the Volvo through the intersection, and stopped about five to ten metres in the front of the Volvo.
He described the weather conditions as being cloudy and drizzling. He said that his view from the rear window of the Ford Laser was restricted because of the “foggy conditions”. Neither the rear demister nor the windscreen wipers on the rear window of the Ford Laser had been working on that day. He said that later he observed the white truck leave the scene travelling south on Main North Road on the right hand side of his parked vehicle. He said his wife got out of the vehicle to exchange details with the Volvo driver but he remained in the Ford Laser holding the flowers as he felt some pain in his back at that time. He was also anxious that his wife chase the truck which had, in his view, unlawfully left the scene of the accident. He said he did not see the driver of the Volvo, and repeated in cross-examination that the Volvo driver did not go to the front of the Laser to exchange particulars with his wife.
He was asked why he did not mention the “foggy” conditions to an investigator, Mr Kotenko, in November 2004. He said initially that he might not have been asked about the conditions, but subsequently said that he might have forgotten to say anything more than it was wet at the time. He could not recall telling Mr Kotenko at that time that he felt and heard the impact from the truck which had pushed the Ford Laser into the car in front; as opposed to seeing that truck actually hit the Ford Laser. He said that initially, following the accident, he had sharp pains in his back but by the time he got home, it had started to “burn up in my lower back”.
After a short time his wife returned to the Ford Laser, and they decided to attempt to locate the truck. He thought the Volvo drove off first. He described travelling along Main North Road trying to find the truck until they gave up and drove past the Holden Hill Police Station on the way home. He was asked why he did not stop and report it immediately at the Holden Hill Police Station. He said that he was starting to get a bit of pain and his wife was in pain as well.
When cross-examined he said that he had no idea who was in the Volvo as, at all times, the windows of the Ford Laser were foggy and he could only see the silhouette of a car behind. He said he did not get out of the car because he thought he may have “re-aggravated his back and he was anxious to follow the truck”. He denied the assertion that he was not in the Ford Laser.
Extracts of employment records were tendered disclosing periods of sick leave as and from 17 September 2003: and indicating that the plaintiff had been on leave on the day of the subject accident.[4] The plaintiff was cross-examined about those employment records. I find that he was the person who was responsible for recording his days off work.
[4]    Exhibits P15 and P16.
He was asked by Mr James, counsel for the second defendant, about the force of the impact with the unidentified white truck. He said that it was a little bump. He said that it was when the Ford Laser hit the Volvo that he felt the pain in his lower back. It was “a slight sharp pain, one sharp pain and there was no like ongoing pain after that”. He denied that it took seven or eight minutes for the exchange of particulars to occur and said it was only about a minute. He said the Ford Laser was repaired privately for about $1,000.
He said that he first attended the surgery of his general medical practitioner, Dr Alfred Ho, on the afternoon of the accident. He told him that he had been involved in a motor vehicle accident, as the left rear passenger. He told him that a truck had hit his wife’s car and pushed it into a car in front. He had obtained a medical certificate signed by a Dr Kurlinkus the next day which had certified that the plaintiff was unfit for work from 17 September 2003. That certificate admitted into evidence.[5]
[5]    Exhibit D1 - 22
The plaintiff said that he and his wife had reported the accident to the Holden Hill Police Station at about 7pm on the night of the accident after he had been to see Dr Ho. They had given the police the details of the accident including the involvement of the white truck.
·Dr Alfred Ho had recorded in the notes the history provided by the plaintiff on the subject afternoon, namely that he had been involved in a motor vehicle accident on Main North Road while being a passenger in the left rear of a motor vehicle, slowing down at traffic lights when a truck hit his car’s left hand side. Dr Ho recorded that he had been told that “a truck hit his car at the left hand side and another car, mounted the footpath and didn’t stop”. He recorded in his notes that the plaintiff told him that he felt OK at the time but later he was complaining of a tight and burning sensation over the lower back. Dr Ho had noted that when he examined the plaintiff “his lumbar spines were rigid with hardly any range of movement. There was a lumbar spasm, and he was tender at the 4^th lumbar vertebra.
·Leandara Gay Copini, had known the plaintiff’s wife for about 21 years. She said that she was first informed of the motor vehicle accident at about 5.30pm on 16 September 2003 by a telephone call from the plaintiff’s wife. She explained that she had organised a lunch on 16 September 2003 for the plaintiff and his wife to repay their kindness in respect of her husband’s death. She said the lunch ended at about 2.55pm as she had to collect a child from school. She said that she had given the plaintiff’s wife the large arrangement of flowers which she handed to the plaintiff. She was unable to say whether the plaintiff had left the vehicle after leaving her house but at the time of leaving her house, he was seated with the flowers in the rear left passenger seat while the plaintiff’s wife drove the Ford Laser.
She denied the assertion put to her in cross-examination by Mr James on behalf of the second defendant, that only the plaintiff’s wife was present for that lunch.
·Fiona Karamanlidis, gave evidence that she had been married to the plaintiff for about nine years. She said that about 3pm they left the Copini house. She was driving a Ford Laser which she had purchased in 1991 and her husband, the plaintiff, was seated in the rear left passenger seat holding the flowers given to her by Mrs Copini. She said that the rear demister and rear windscreen wiper had not been operating for as long as she could remember. She said that neither she nor her husband got out of the motor vehicle before the accident. Her recollection of the weather that day, was that it was overcast and raining. She said that she was driving very slowly, and braking as she approached the line of vehicles stationary at the intersection. She looked in her rear vision mirror as she generally did. She thought she did not hear a noise before looking back. She saw a white truck travelling very closely behind her. She said:-
… at that point, I was panicking because I thought ‘we’re going to be sandwiched’, so I – and then I heard some – what sounded like tyres skidding on gravel and then I felt a jolt, like someone had collided into the back of me.
She said she was very scared and then her vehicle was pushed into the Volvo in front. She was cross examined about the timing of the accident. She was adamant that the event happened very quickly. She had not seen the truck prior to slowing down, and glancing in the rear vision mirror. After seeing the truck she then looked ahead. She kept her foot on the brakes. The truck was near the gravel verge.   She did not see the truck make contact, but just heard the squeal of tyres, and felt the bump. She said that she was unable to see clearly out of the rear window because it was foggy, wet and the rear demister and wiper were not working.
Immediately after the accident, she followed the Volvo, with which she had collided, through the intersection. She pulled over her Ford Laser in front of the parked Volvo; and just as she alighted from her vehicle, she saw the white truck drive past heading south and veering across the lane to the right. She had no opportunity to view the number plate of the white truck.
She said the driver of the Volvo whom she now knew to be Mr Wittup, was standing near his driver’s side door. She said she approached him and said “I am very sorry but a truck had hit me” and that he replied “Yes, I know”. She said that she told him she was anxious to try and catch the truck to get the registration number. She said that the discussion took place near his driver’s side door. She said that she looked to the passenger side of that vehicle and observed a female passenger who appeared to be distressed. Mr Wittup told her that he had just picked her up from the hospital. She said that with Mr Wittup, she walked to the rear of his vehicle to examine what appeared to be some scratches on the bumper. He had said words to the effect “Don’t worry, it’s nothing major”. She quickly walked back to her vehicle as Mr Wittup climbed into the Volvo and drove off. She estimated that the conversation and the exchange of details took only about a minute or two. She and the plaintiff had attempted without success to locate the white truck. At that stage she was stressed and flustered, feeling some burning pain in her neck and tingling in her left arm. She said that the plaintiff had made complaints to her about a sharp pain in his back while travelling on McIntyre Road on the way home. She said she went with her husband to the police station at Holden Hill at about 7pm and gave details to the police about the accident. She then described the restrictions upon him performing household chores, while complaining about pain in the period following the accident on 16 September 2003.
When cross-examined she denied checking the front of her vehicle with Mr Wittup and said that they checked the rear of the Volvo. She repeated that Mr Wittup had not been concerned about the damage to his vehicle, and was anxious to leave. She also denied the assertion that Mr Wittup had moved to and from the front of the Ford Laser to source a pen and paper. She identified the back of a receipt which set out her name and registration details.[6] She was in a hurry and did not get Mr Wittup’s details. She repeated that she thought that as a result of being struck by the truck, her vehicle was then propelled forward into the rear of the Volvo.
·Edward John Wittup said that his wife, Annie, had been a patient at the Women’s and Children’s Hospital, having given birth to their daughter on 11 September 2003. He had driven her from the hospital to collect clothing from Gawler earlier on the subject day. They were required to return to the hospital by approximately 4.00pm on that day. He said that his vehicle became stationary about 80 to 100 metres from that intersection. Mr Wittup explained that his Volvo vehicle had a WHIPS system to protect occupants in the case of a rear end collision.   He said he felt a slight tap at the back of the Volvo. Whatever force was involved was insufficient to activate the WHIPS system. He looked in the rear vision mirror, and saw a small white vehicle.
He said he then pulled his vehicle to the left and parked on the road verge about 20 metres from the collision point. He said he did not drive through the intersection before pulling over. The Ford Laser pulled around him and parked 5 to 6 metres in front of his Volvo. He got out and went around to the front of what he described as “their vehicle, to have a look at their car, to see what it was and the registration”. He said he observed that there was damage to the front bumper bar and to the front grille of the Laser. The weather at that time was an intermittent drizzle.
Eventually the driver of the Laser got out and stood beside him. He said that he looked through the Laser to check on how his wife was and could see straight through the vehicle to his wife. There was an exchange of names and addresses. He then said “I know that there was something mentioned to me about a truck but I never, in my life, saw a truck. She did mention a truck”. He said that Fiona Karamanlidis asked him to join in a chase for the truck. He said he walked from the front of the Laser to the passenger side of his vehicle, to obtain some paper to write out the particulars. He also asked his wife how she felt. He said that Fiona Karamanlidis appeared to be in a hurry.
He did not observe any damage to the rear of the Laser. He said that the damage to the Volvo was cosmetic with a bit of glass embedded in the bumper bar. He couldn’t say how long it was that they remained at the scene of the accident, but that the Volvo left the scene of the accident before the Laser. He said that on two occasions while at the front of the Laser he looked through the Laser to observe his wife in the Volvo behind. He could see his wife without any difficulty.    He did not observe any passenger, nor did he see any flowers in the Laser. He did not report the accident to the police.
During cross-examination he conceded that their daughter had been born nine weeks early and that it was a very stressful time. The baby was not discharged until a number of days afterward after the subject accident. He denied that he was in a hurry to return to the hospital. He said that there were about four vehicles between his stationary vehicle and the intersection. When it was suggested that he would only have been about 40 metres from the intersection, he seemed to reconstruct the event saying that it had to be a greater distance than that, because he would not have been able to pull off the road before the intersection. He agreed that once he pulled his vehicle over and turned the engine off, wherever that was, the windscreen wipers on the Volvo had ceased to operate. He said that about five weeks after the accident the police gave him a call, and he could not recall much of what the police officer had asked him. He agreed that he was not particularly concerned about who was or was not in the interior of the Ford Laser at the time.
Mr Wittup gave the impression that the collision was insignificant, and said that he had not even had the Volvo repaired. He was, however, cross-examined about an Accident Report Form to Allianz CTP executed by him on 20 November 2003.[7] He denied it was a claim form, but just “a form of notification about the accident”. In that document it had been asserted that his wife Annie had suffered back and neck soreness, and “a major increase in blood pressure problems”, as a result of the subject accident. He said that he had turned his mind to the events about a few months after the accident, when an insurance investigator telephoned, and also when he executed the “notification” form. He had suffered what he described as “a health problem” since the accident, which, he said, had affected his memory on minor details.
[6]    Exhibit D1-9.
[7]    Exhibit D1-27.

He said that approximately one year after the subject accident, his wife, when driving the Volvo, had been involved in another accident on Main North Road in which she was seriously injured.
Annie Wittup said that she was in the front passenger seat in the Volvo driven by her husband on 16 September 2003 returning to the Women’s and Children’s Hospital. She said it had been drizzling on and off. She said while they were stationary about 80 to 100 metres from the lights on the intersection of Main North Road and Clayson Road she felt a bump from behind, which was only minor. She said it may have been that the Volvo moved forward but “only a little tiny bit and not substantial”.
She said that her husband moved the Volvo to the stationary position on the left hand side of Main North Road before the intersection, and the Ford Laser stopped about 3 metres in front of the Volvo. She stayed seated in the Volvo, but said she was able to observe her husband speak to the lady driver by looking through the front window of the Volvo and through the rear window of the Ford Laser. She denied that the driver of the Ford Laser had come over to the driver’s side window of the Volvo. She said he saw no one else in the Ford Laser. She denied that the Laser’s rear hatch window was foggy. She said she had no discussion at all with her husband about the topic of a truck or chasing a truck. She said it took about 10 to 12 minutes from the accident to the time when they finally left the scene. She said that her Volvo vehicle had nothing more than a bit of a scratch with a piece of glass embedded in the rear bumper. She was asked specifically in chief:[8]
Q      Have you made any claim for injuries in the accident?
A      No.
[8]    Transcript p 503.
She said she felt a bit sore a couple of days later. In cross-examination she acknowledged that she had been involved in two accidents on Main North Road. The first was the subject accident on 16 September 2003, whilst another, more serious had occurred in 2004. She said that she had pain in her back and neck in consequence of the subject accident and that she had elevated blood pressure. She agreed that at the hospital on 16 September 2003 a test had shown an elevated blood pressure level.
She acknowledged that on 20 November 2003 an Accident Report Form for the purposes of insurance was lodged. She conceded that as at 20 November 2003 she considered that she had been injured in the subject accident. She said that while her husband was out of the car the windscreen wipers on the Volvo were not on and could not say categorically whether it was raining or not. She agreed that in the Ford Laser there were head rests in the front seat. She denied that after the accident, the Volvo first crossed the intersection before pulling off on the left hand side of the southern side of the intersection. She conceded however that the kerbing on the northern side was about 20 or 30 metres from the intersection which would prevent a vehicle close to the intersection from pulling over to the left hand side of the road, prior to entering the intersection.
Some weeks later the police telephoned to ask if a truck had been involved in the collision. She said that about a couple of months after the accident she was told by an insurance investigator that he had concerns about the accident. It was Mrs Wittup who told him “hang on a minute there was only one person in the vehicle and that was the driver”.
The expert witnesses
·There was no dispute as between the respective expert consulting engineers, Christopher Hall and Raphael Grzebieta, as to the relative speed changes involved in the collision, and as to the likely change in direction of the Ford Laser just prior to its contact with the rear of the stationary Volvo.
Similarly both were of the opinion that, if indeed the unidentified truck had made contact with the rear of the Ford Laser, then such contact was insignificant, and accordingly it was unlikely that the Ford Laser was pushed forward into the stationary Volvo.
·Raphael Grzebieta, is the Professor of Engineering at the University of New South Wales. His Curriculum Vitae was very impressive and disclosed considerable research into the causes of motor vehicle accidents. He was somewhat equivocal in his expert report as to the cause of the dent to the rear passenger side of the Ford Laser. He described that damage as follows:
The damage to the rear of the Laser is consistent with a vehicle grazing the Laser or previous parking damage. Had the alleged truck grazed the Laser and caused the minor damage visible in [the photographs] the force imparted onto the Laser would have been orders of magnitude smaller than that required to push the Laser into the rear of the Volvo.[9]
[9] Exhibit D1-3, report dated 21/12/06.
Upon the assumption that the unidentified truck had “grazed” the Ford Laser, thereby causing the dent observed in the photographs, Professor Grzebieta concluded from the angle of contact between the Ford Laser and the Volvo, that Mrs Karamanlidis had swerved to the right to attempt to avoid the Volvo. He postulated two scenarios, which both assumed, whatever the cause, that she had insufficient time to brake.[10] The first assumed contact by the Ford Laser with the Volvo first, followed by a grazing contact from the white truck; while the second assumed a grazing contact with the truck first.
[10] Exhibit D1-3 at pp 13-14.
It was not clear to me on either scenario as to how the truck may have made contact with the rear left passenger side of the Ford Laser, unless it was positioned in the left gravel section.
He explained that the WHIPS system was designed to protect the occupants in the Volvo from whiplash injuries by enabling the seat to move, and thus cushion the acceleration created when a vehicle had suffered a rear end impact. He said the change in velocity required to trigger the WHIPS system was usually above ten kilometres per hour.
He opined that the impact between the Ford Laser and the Volvo was of the order of eight kilometres per hour or less. He described the impact as being of a low order. He was cross-examined about the risk of injury in such a low impact accident, in light of the evidence of pain being felt by Mrs Wittup. He suggested that any such injury could only be regarded as a low risk. He was also asked about the effect of such an accident upon a person like the plaintiff who had a pre-existing lower back injury.
He conceded that he did not have the expertise to provide an opinion on those matters.[11]
[11] Transcript p 489.
Both Professor Grzebieta and Mr Hall engaged in some speculation about the possible “human reactions” of Mrs Karamanlidis, and purported to reach conclusions as to the “ultimate issues”, which of course are for the court to determine.[12]
[12] cf. O'Brien v Gillespie (1996) 41 NSWLR 549; Dyson v Pharmacy Board of NSW (2000) 50 NSWLR 523 and Hillier v Lucas (2000) 81 SASR at 491
He speculated about Mrs Karamanlidis’ reactions, suggesting that if the truck had grazed the rear of the Ford Laser, only a fraction of a second before contact with the Volvo, then she might have assumed that she had been pushed into the Volvo.
Professor Grzebieta ultimately concluded that whatever impact occurred as between the truck and the rear of the Ford Laser, it was insignificant and could not have pushed the Ford Laser onto the Volvo; and, the collision between the Ford Laser and the Volvo resulted directly from the failure of the driver of the Ford Laser to brake in sufficient time.
·Christopher Hall is a highly experienced engineer whose Curriculum Vitae includes research into the causes and effects of over two thousand motor vehicle accidents. In addition to his oral evidence, two reports prepared by him were admitted into evidence.[13]
He generally agreed with the opinions expressed by Professor Grzebieta. He had examined the photographs depicting the deformation to the rear passenger side panel of the Ford Laser. While conceding that it was difficult to estimate impact speeds from photographs alone, he had no difficulty in concluding that the damage was consistent with “a short side swipe contact”, such as the unidentified white truck having clipped the rear of the Ford Laser, implicitly, in the manner described by the plaintiff.
He referred to the significantly greater damage to the front of the Ford Laser. He concluded that the speed change from the rear end contact by the truck to the Ford Laser was insignificant as contrasted with that involved in the rear end contact by the front of the Ford Laser to the rear of the stationary Volvo.
He agreed that it was improbable that the Ford Laser was pushed forward into the Volvo as asserted by the plaintiff’s wife.
Mr Hall also engaged in some speculation as to the events leading to the accident. While agreeing with the scenarios postulated by Professor Grzebieta, he went further speculating that Mrs Karamanlidis might have, without realising it, “released” the brake in the Ford Laser as a reaction to her “surprise” about the contact from the white truck.
Even though it is common experience that the events seconds before impact may be confusing to the driver, the fact remains that there was no evidence from Mrs Karamanlidis to found a proper basis for such speculation. She had deposed to not seeing the collision with the truck, and that she had at all times kept her foot on the brake.[14]
·The insurance investigator, Nicholas Michael Kotenko, was called by the first defendant as a witness ostensibly to establish alleged prior inconsistent statements, by the plaintiff and his wife in or about 12 November 2004.
As it transpired that evidence was of no assistance in determining the issues in this trial.
[13] Exhibit P11, report 15/12/06; Exhibit P12, report 28/06/07.
[14] Transcript p 280.
The evidence as to the plaintiff’s pre-accident disabilities and symptoms
The plaintiff was born on 26 November 1971, and was thus aged 31 years at the date of the subject collision. He is employed as a bookkeeper by Marang Pty Ltd which provides services for a firm of solicitors. He commenced that employment upon completion of his secondary education in 1989.
·On 19 October 1989 the plaintiff was injured while lifting boxes in the course of his employment. He described the onset of severe pain in his lower back, and the development of sciatica pain in his left leg. He was diagnosed as having sustained a disc protrusion, probably at the L4-5 level. In examination-in-chief he said that he could not remember very well how long it had taken for him to recover. He thought he was off work for days or weeks, but certainly not months. His best estimate was that physiotherapy would have occurred over a number of weeks. He clearly gave the impression in chief that within “a couple of years” of that accident, his lower back and left leg problems had settled down.
He said that in 1991 he took a six month break from his work to pursue a career as a bricklayer’s labourer. He said that he did that work for a couple of months, and only gave it up because the job was finished. He was clear in his evidence that he had no difficulties performing that work and that he enjoyed the work. He said he ran out of money and resumed his work as a bookkeeper with Marang Pty Ltd in about July 1991.
The plaintiff was cross-examined extensively by counsel for the respective defendants about the 1989 injuries and other pre-accident incidents, and consequential symptoms.
He was reminded of certain matters to which he had deposed in an affidavit on 15 October 1992;[15] and in a letter of claim from his solicitors to WorkCover Corporation on 12 May 1992.[16]
[15] Exhibit D14 Affidavit of Loss in Action No 1761 of 1992 in this Court.
[16] Exhibit D13.
He accepted that in those documents, which had led to the settlement of proceedings issued in respect of the 1989 accident, he had represented that at least some three years after that accident he had continued to experience pain and discomfort in his lower back and left leg such that it restricted his ability to walk or sit for long periods. He had also represented that he was forced to give up the attempt at bricklaying because “he soon found that his symptoms were so aggravated while at work and particularly after work when he had stopped moving, that he had to give up this attempt to do this alternative employment”.
He was then cross-examined about the history given by him to the orthopaedic surgeons, Dr Osti and Dr Guirguis, on the first respective occasion he saw them, namely on 13 October 2003 and 4 December 2003. Both had recorded that history of the 1989 accident as producing no leg pain.[17] However, it is clear that by the time of his examination of 7 September 2004, Dr Guirguis had reviewed medical reports from the time of the 1989 accident detailing the left leg pain. The plaintiff had then told him about the fact of the left leg pain, and asserted that it had “completely resolved by the end of 1992”.[18]
[17] Exhibits P7.1 and 7.2, reports of Dr Guirguis dated 9/12/03 and 28/01/04 and P14.3 report of Dr Osti.
[18] Exhibit P7.3, report of Dr Guirguis dated 17/09/04.
The medical notes of his attendances at the Nailsworth Clinic from 28 October 1985 to 3 December 2003, were tendered.[19] These disclosed that by about May 1990 the plaintiff was managing well at work. Thereafter, most of his attendances at that clinic until October 1994 were for unrelated throat ailments.
[19] Exhibit P19.
The reports of the Orthopaedic Surgeon Dr Christopher Butcher dated 14 April 1992 and 26 September 1992 are also illuminating. Dr Butcher said that the plaintiff had suffered a disc prolapse at the L4/5 level. He expected any “residual disability to be small if present at all”. He reported that by 26 September 1990, the plaintiff had rarely any leg pain. He ultimately concluded in respect of the 1989 injury, that:
I would assess that he has an ongoing minor disability, which would leave him fit for all but heavy labouring duties. I would not perceive he is likely to run into significant problems in the future requiring operative intervention, but he may continue having symptoms with heavy work and at other odd times which would suggest that he should be assessed as having a mild ongoing disability pro term. I would suggest that this would be in the region of five per cent loss of back function.
The plaintiff, in answer to the inconsistencies between his evidence-in-chief, and the representations made by him in contemplation of the settlement of the 1989 accident proceedings, said that he could not clearly remember the events following the 1989 accident, because they had occurred so long ago.
He was reminded that he was involved in a motor vehicle accident in Melbourne in 1993 which he had forgotten to mention in his evidence-in-chief. He accepted that it was a forceful impact in which a car had turned across his path. He could not recall any problems from that accident. He agreed that he had settled the proceedings from the 1989 accident in 1993.
·On 17 October 1994 while removing some files from a compactus, he felt sudden pain in the same spot in his lower back. In examination-in-chief the plaintiff said he did not think he suffered any left leg symptoms from this accident. He thought that he may have been absent from work for only a couple of days, and that after about two to three weeks the pain subsided. He said that between 1995 and the date of the subject accident on 16 September 2003, he only occasionally felt some lower back pain, and “a little bit of sciatica in the left leg on about five occasions”.
The medical notes from the Nailsworth Clinic disclosed regular attendances throughout November and December 1994 and January 1995, including a complaint as to the onset of “left leg pain to the lower calf”; aggravated by lifting files at work. On 8 March 1995 he reported severe pain for a few minutes in the lower back “in the usual place” while washing his face that morning. The note however described “pain extending to both calves, left and right. Considerably better.”
The plaintiff was cross-examined about whether he had continued to complain about both lower back pain, and pain in his left leg radiating down to his lower calf. The Nailsworth notes did not record such complaints between late 1995 and the date of the subject accident in 2003. The plaintiff said however that he had continued to have left leg problems that had never fully recovered.[20] He said:
That’s right. My actual pain from 1989, like it just flares up, it goes away and another area starts and it comes back, so it is all over the place, the pain. One day I might feel pain in the left leg and maybe then I won’t feel it for a few months, and later on it will be in the right leg.
·On 18 August 1999 before the subject accident, he had suffered from a swollen tendon in his right forearm. He said, however, that he was able to mow the lawn and maintain a vegetable garden without the need for medication. He also enjoyed fishing, four-wheel driving, camping and hiking prior to the subject accident on 16 September 2003.
·The plaintiff’s wife, Fiona, gave evidence of her observations of the plaintiff prior to the subject accident. She said that he would help her with all of the household chores, and that it was “not very often” that he would complain of back pain.[21] She contrasted that picture of him with the alleged restrictions upon him after the subject accident, referred to below.
·Sally Jane McKechnie had known the plaintiff and had worked with him for about twenty years. She was aware that the plaintiff had a prior back injury which she thought was in the 1990s. In answer to the question whether the plaintiff had suffered any restrictions back then, she said “maybe”. She could not recall any complaint by him of pain in the back causing a collapse in the mid 1990s. She thought in general terms the plaintiff had, both before and after the subject accident in 2003, taken all of his sick leave entitlements.
[20] Transcript pgs 128-131.
[21] Transcript p 242.
Post accident disabilities and symptoms
·The plaintiff said that immediately following the accident he suffered a sharp pain in his lower back which subsequently started to “burn up” at home. He could not remember if he immediately had symptoms in his left leg. He described the location as being similar to, but not exactly in the same spot, as the work injury of 1989. He thought he was off work for one week and then worked half a day on a part time basis until about the month of February 2004. Thereafter, he would also have occasional days off work because of severe lower back pain. He said that about one week after the subject motor vehicle accident, while brushing his teeth, he collapsed onto the floor with severe sciatica pain in the whole of his left leg which rendered his left calf numb. He could not recall any similar event following the 1989 work accident. He was reminded during cross-examination about the complaint of severe pain in his lower back on or about 8 March 1995, while simply washing his face. He said that following the subject accident, virtually any physical activity including just sitting down watching TV or at work would bring on pain with respect to his lower back.
He said that he started doing some “light weights” at a gymnasium from about 2005. Over the time until he ceased in late 2007 he had been to three different gymnasiums. He said that while he was at the gymnasium, the pain in his lower back started to improve with his level of fitness, however, it is now worse since giving up that gymnasium work. If he sits or stands now for half an hour then he has pain in his lower back, and “sciatica pain down from his left hamstring to his foot”. He said that prior to the accident he was able to do some vacuuming, washing dishes and trimming the hedges. However, since the accident even that sort of activity would bring on some pain and sciatica. Over the years he had attended physiotherapy twice a week for a couple of months. Thereafter he attended some forty or fifty times upon a chiropractor, and subsequently had ten to fifteen sessions of massaging. He repeated that since ceasing the gymnasium work he would suffer burning pain every day in his lower back, and constant numbness in his left calf with hamstring sciatica. He would take painkillers, namely Capadex and Voltaren, before he did any physical work around the house. He indicated that he had lost motivation to keep up the regular exercise regime, he had employed until 2007 at the gymnasium.

When cross-examined he was shown a video of his attendance at a gymnasium on 16 September 2006 and 23 September 2006. The video film disclosed the plaintiff undertaking various exercises on various machines including leg extensions, calf raising, squatting and lifting various weights. It disclosed, during one such exercise, a barbell placed across the plaintiff’s neck and shoulders with weights attached to each end of the barbell. He was observed squatting down and standing up again with those weights in position. The plaintiff conceded that he did not appear to have any difficulty in undertaking that activity and that the activity on the video could not be said under any circumstances to constitute a “light gym program”. He said:
QYou are agreeing that that’s not what you described as a light gym program, is it.
ANo, that isn’t, no, but I started off doing a light weight gym program and my muscles eventually handled a bit more weight and I put a bit more weight on there.
QYou have never told the doctors that you have been gym programs of this nature, have you.
ANo, I haven’t, no.
Thereafter the plaintiff was shown on the video film various other exercises including a leg press machine. He agreed that he had appeared to be able to then bend down satisfactorily and indeed pick up extra weights and put them on the machine.
He was cross-examined extensively about what it was that he had told Dr Guirguis when he saw him for the first time on 4 December 2003. He admitted that he had been incorrect in telling Dr Guirguis that he did not take time off from work after the accident in 1989. He also acknowledged that he was in error in telling Dr Guirguis that there had been no leg pain as a consequence of the 1989 injury. He had made a similar statement to Dr Osti, when he saw him on 13 October 2003. He was also in error in asserting that symptoms from the 1989 injury had resolved completely by the end of 1992. He denied that he was attempting to mislead Dr Guirguis or Dr Osti about the nature of the gym work that he was undertaking by calling it simply “light gym work”. He said that he would attend from time to time upon Dr Ho when the pain was such that he needed time off work.
·Fiona Karamanlidis said that prior to the subject motor vehicle accident the plaintiff had complained on a “not very often basis”, about pain in his lower back and was able to assist her with washing, occasional cleaning and vacuuming. Since the subject accident she had observed that the plaintiff appeared less outgoing and generally complained about back pain when attempting to do household chores such as vacuuming and mopping floors. She had noticed a significant reduction in the number of occasions that he would undertake outdoor activities such as fishing, or camping. When she was cross-examined she said that she had received a sore neck and tingling in the left arm in the accident. She was reminded about the particulars of claim filed on her behalf, in which she had alleged that as a result of those injuries, she was restricted in her ability to undertake domestic and household duties following the accident. It was suggested to her that her pleadings in which she alleged that she received assistance for domestic chores from her husband were inconsistent with her evidence that her husband was unable to perform domestic activities without pain. She denied that there was any such inconsistency. In respect of a previous statement made by her that she had considerable assistance from her husband in regard to those household and domestic activities”, she said “I suppose [that statement] is correct”.[22]
·Sally Jane McKechnie, the plaintiff’s co-worker, had been overseas as at the date of the subject accident. She said that prior to her overseas trip she had not provided the plaintiff with any assistance in relation to the movement of files. However, following the accident she concluded that he needed assistance with the files as he complained to her of pain in his back and was having time off work. She said that in 2008 the plaintiff had had very little time off work and not a great deal in 2007. She said that the time which he has had off work since the accident had gradually diminished from the date of the accident.
·The orthopaedic surgeon, Dr Nagi Guirguis, examined the plaintiff for the first time on 4 December 2003 and had seen him on various occasions until 16 June 2008. Mr Guirguis had concluded that the plaintiff had, in the subject accident, aggravated the previous disc injury sustained in the 1989 or 1994 accidents and that MRI Scans taken following the accident were indicative of a posterior annular tear at the same level. He had assessed the plaintiff as having a partial incapacity for working duties particularly on the open labour market and with respect to activities of daily living. He concluded that his overall disability was a 20% loss of function of the lumbar spine and a 10% loss of function of the left lower limb. In his medico legal report dated 25 July 2006, he said that the effect of the subject motor vehicle accident was that of aggravating the plaintiff’s pre-existing lower back condition. He opined however that the subject accident was functionally causing all of his current disabilities as, on the history provided by him, the plaintiff had been virtually asymptomatic prior to the accident. He had cause to reconsider that opinion in the light of the suggested history of ongoing symptoms; and his subsequent perusal of the activities depicted in the video film taken of the plaintiff at the gymnasium in 2006. He did not consider the exercises at the gymnasium, as disclosed on that video film, could properly be classified as “light gym work”. He said that having seen the activities on the film he thought that the plaintiff would have been able to undertake activities such as the household duties of mopping and cleaning so long as he did them in the correct way. Further, he said that having seen the level of straight leg raising apparent from the film, there was no significant nerve irritation present at that time. He accepted that the lower back pain and leg pain complained of by the plaintiff could have been the consequence of an event happening spontaneously, namely an aggravation of the pre-existing condition, irrespective of whether the subject motor vehicle accident had occurred.
·The orthopaedic surgeon, Mr Osti, had seen the plaintiff initially on 13 October 2003 and subsequently on 29 June 2006 and 6 June 2008. Mr Osti had taken a history from the plaintiff to the effect that although he had suffered from left sided low back symptoms before the accident, he had never suffered from significant sciatic symptoms in the left leg until the subject accident. Mr Osti had observed “a straight leg raise test positive at 30^o with a weakness in the left toe”. Mr Osti had concluded that the plaintiff was suffering from a moderate impairment of the lumbar spine function linked to his spinal condition which he quantified at 15%. He had advised the plaintiff of the possibility of epidural injections with steroids to relieve his asserted pain. He said the cost of that treatment was something of the order of hundreds of dollars. He had also discussed the prospect of surgery if the pain got to a point where the plaintiff could not cope. He estimated the cost of such surgery as being of the order of $20,000. He concluded that the plaintiff was fit to continue work on a full time basis but that he should avoid “heavy repetitive” tasks, particularly lifting over 20 kilograms; and avoid prolonged driving tasks. The plaintiff told him at his last consultation that his pain was “at a 2 out of 10 level only”, and that he was exercising with “light weights”.
In cross-examination, Mr Osti was also shown the video film. He said that if the plaintiff was functioning well and exercising, then “it would be crazy for him to expose himself to the risk of an operation”.[23] He said that having now been given a detailed history of ongoing pain since 1989, he would treat the plaintiff’s presentation as a case of an exacerbation of a pre-existing symptomatic condition, and accordingly would divide the disability percentages, by attributing half to the pre-existing condition, and half to the subject accident. He accepted the proposition put to him that what he had seen on the video film did not constitute exercising using “light weights”.
·The plaintiff’s general medical practitioner, Dr Alfred Ho, had seen the plaintiff for many years following the 1989 work injury. He had seen him on the day of the subject motor vehicle accident. He provided various medical certificates relating to the plaintiff’s ongoing complaint of lower back pain with referred pain down the left side of his leg.[24] Dr Ho had concluded that the plaintiff had sustained a lower back strain in the accident which had aggravated his pre-existing disc prolapse. Dr Ho said that he had seen the plaintiff on about seven occasions at his Valleyview Surgery in addition to the various attendances at the Nailsworth Surgery between September 2003 and 2004. He said he had no doubt that the plaintiff had back pain with left sciatica symptoms and that there was pathology upon which those symptoms could be based. He deferred to the orthopaedic surgeons the question as to whether the post accident symptoms were related to the pre-existing injury or to the effects of the motor vehicle accident or a combination of both. When asked to comment on the plaintiff’s exercises, as depicted in the video film, Dr Ho said it appeared to him that the plaintiff performed those exercises in quite a reserved and careful manner. Indeed he said that he had recommended on 10 July 2006 that the plaintiff maintain regular exercises to help with his back problems. His opinion as to the plaintiff’s ongoing disability had not been altered by having viewed the video film. He said that between July 2006 and August 2008, he had seen the plaintiff on some 11 occasions, seven of which related to lower back or sciatica complaints. On those latter occasions the pain level increased following repeated bending and lifting files at work. He accordingly provided sickness certificates for one or two days off work.
·The neurosurgeon, Mr Glenn McCulloch, had seen the plaintiff for medico-legal purposes on 2 August 2006 and 20 June 2008. He concluded that the plaintiff had a pre-accident condition, namely an L4/5 or L5-S1 disc protrusion and a left sciatica. He said that the symptoms of which the plaintiff had complained following the accident are consistent with an exacerbation of that pre-existing condition. He said it was consistent with the nature of the motor vehicle accident as described. He was of the opinion that the plaintiff was unable to perform heavy lifting, to play sport or undertake heavy physical activities. Mr McCulloch accepted as a proposition that minor forces involved in a motor vehicle accident, can produce lasting effects for a person with a pre-existing degenerative lower back. He was asked to contrast the pre-existing symptoms before and after the date of the motor vehicle accident. He referred to the degree of disability as presented at Dr Ho’s surgery on the day of the accident. He said that such a degree of physical findings as identified by the medical practitioner on that day could not have been present for a long time. He felt that that degree of disability was more consistent with some acute flare-up having occurred, whether that was due to the trauma of the motor vehicle accident on that day or some other event. The plaintiff had told him on 2 August 2006 that he had improved over the three year period. In his report of 25 June 2008, Mr McCulloch assessed the “slight residual disability in addition to that which existed before”, as being a 5-10% loss of function the lumbar spine as a whole. He recommended the resumption of a self directed gym programme. However, by report dated 2 July 2008, he opined that the impact in the subject accident was so minor that an aggravation should have been only of a few weeks duration.
·The physiotherapist, Richard Fuller, provided functional capacity evaluations of the plaintiff. As at the 8 May 2006 the results indicated that the plaintiff was able to work at a light, medium, physical demand level on a full time basis but was limited in his ability to enjoy some only of his pre-injury leisure and social activities because of pain. He had reported that the back injury appeared to have only a minimal impact upon his ability to perform his daily activities. He was “already independently performing chores involving garden maintenance”, and his wife was performing the household chores. By 17 March 2008 however, Mr Fuller had concluded that there had been some deterioration in his condition with slight decreased functional abilities as contrasted with the 2006 report. He ascribed this deterioration to the plaintiff having ceased a regular exercise program.
·The psychologist, Chris Goulding, had provided vocational assessments of the plaintiff in May and June of 2006. In that report it was noted that the plaintiff had predominantly worked in the clerical field and in the event that there were to be a change in vocation, he would be competing in the open labour market against fitter, better qualified and more experienced candidates.
[22] Transcript p 291.
[23] Transcript p 324.
[24] Exhibit P20.
Submissions of Counsel
·Liability
The submissions were directed principally to the question of whether the plaintiff was at the relevant time a passenger in the Ford Laser and if so whether the white truck had made contact with the latter vehicle.
The respective counsel for the defendants submitted that I should accept in its entirety the evidence of Mr and Mrs Wittup on the bases that they were independent. They submitted that I should prefer their evidence to that of the plaintiff and his wife, who ought not be accepted as witnesses of truth. They pointed to evidence given by the plaintiff as to his pre and post accident symptoms and submitted that he had deliberately understated the extent of his pre-existing symptoms, and deliberately exaggerated the alleged increase in symptoms after the subject accident.
They also pointed, inter alia, to the apparent inconsistency between the assertions of the plaintiff’s wife in respect of her own claim, namely that she was restricted in performing her home duties, and thus forced to rely upon the plaintiff; and her evidence in the subject trial to the effect that the plaintiff was unable to perform such duties. They submitted that I could not be satisfied as to either of their evidence generally as they were both unreliable and untrustworthy witnesses. This lack of credibility on the question of the plaintiff’s symptoms, they submitted, reflected adversely upon their evidence on liability.[25] They submitted that I should find that the plaintiff was not present in the vehicle at the time of the collision.
[25] See Higgins v Granger [2001] SASC 86.
They acknowledge that any conspiracy to defraud the defendants must have been entered into very quickly, and certainly before the plaintiff attended upon Dr Ho, but submitted that such fraudulent claims are not unknown.[26]
[26] See McCrae v Nominal Defendant [2005] SADC 42 and Collie v Motor Accident Commission [1999] SADC 77.
They pointed to a series of matters which they said were glaringly improbable including the evidence that the plaintiff did not get out of the vehicle to inspect the damage, and that his wife did not check the front of her vehicle for damage. They also stressed the evidence of the independent witnesses, the Wittups, to the effect that had the plaintiff been in the Ford Laser they would have seen him.
Mr Austin, counsel for the Nominal Defendant, referred to what he described as a principle that in cases such as this where no evidence can be called from the unidentified driver of a motor vehicle, a more cautious approach should be taken to the acceptance of the evidence of a plaintiff.[27] Whether that be a “principle” so called or not, I respectfully adopt that approach in this case. He submitted that the onus was upon the plaintiff to establish not only that the unidentified white truck was present on the road immediately to the rear of the Ford Laser on the day of the subject accident but that the driver of the unidentified white truck had driven in a negligent manner and that such driving was a cause of the accident in the sense described in March v Stramare, supra. He submitted that I should find that there was no contact between the white truck and the Ford Laser; and that the contact between the Ford Laser and the Volvo was of such a low level that it simply could not have caused the injury alleged by the plaintiff.
[27] See Turner v Nominal Defendant (2008) QSC 138, Eaton v Nominal Defendant (1995) 21 MVR 357 and Freeman v Griffiths (1976) 13 SASR 494.
He submitted that any symptoms present were due wholly or partly to the admitted pre-existing lower back injuries sustained by the plaintiff in 1989 and 1994; or alternatively to a spontaneous event unrelated to the subject accident.
Mr Warren, Counsel for the plaintiff, submitted, inter alia, that all of the objective facts were consistent with the plaintiff being so injured. Apart from the evidence of his wife and Ms Copini, there is the immediate reference to the presence of a white truck, and his wife telling Mr Wittup that she wanted to catch the truck. Mr Warren also referred to the report that day to the police and the plaintiff’s presentation to Dr Ho. He submitted that I should accept the plaintiff, his wife and Ms Copini as witnesses of truth.
Findings as to the credibility of the witnesses generally
I am conscious of the fact that each of the witnesses who gave evidence as to the events leading up to the collision, and indeed as to the collision itself, were placed in the invidious position of being asked to recall events some five years later about an accident which must have been at the time objectively minor in nature.
It is this passage of time, and the apparently minor nature of the collision, which, in my opinion, has caused many of the witnesses to reconstruct rather than recount events from of their actual memory.
The respective counsel for the defendants skilfully attacked the credit of the plaintiff and the plaintiff’s wife. I will expand shortly upon my findings as to their respective credit, and as to that of Mr and Mrs Wittup.
I was favourably impressed by Ms Copini and Ms McKechnie as witnesses of truth. I accept their evidence respectively without any reservation.
The two expert Engineering witnesses gave their evidence in an objective and impartial manner. That they felt obliged to speculate on some matters was the consequence of a dearth of information as to the mechanics of the collision, and the absence of any evidence from the driver of the white truck. There was however no dispute between them on crucial matters, and again I accept their respective evidence unreservedly.
All of the medical witnesses similarly gave their evidence in an objective and impartial manner. There was little dispute between any of them. Insofar as there was any dispute as to the length of time of the exacerbation of the plaintiff’s pre existing symptoms, I prefer the evidence of Dr Osti who had first seen the plaintiff about one month after the subject accident; and to a lesser extent that of Dr Ho who was the treating General Practitioner both before and after the collision. I do however accept Mr McCulloch’s initial opinion that minor forces involved in a motor vehicle accident can produce, and, in this case I find, did produce lasting effects for the plaintiff because of a pre-existing degenerative lower back condition. That condition is the reason why he suffered longer lasting symptoms than his wife, and indeed Mrs Wittup.

As to Fiona Karamanlidis I have little doubt that she engaged in some reconstruction about the events occurring immediately before the accident. I had cause however to reflect upon her credibility only in respect of her evidence as to the assistance that she asserted she had obtained from the plaintiff before and after the subject collision.
However, I observed her as she gave her evidence. Notwithstanding those criticisms I am confident that for the most part she did her best to accurately relate the circumstances of the subject motor vehicle accident. I do not accept that in consequence of those valid criticisms of her evidence that I should find that she lied to me about the presence of her husband in the Ford laser at the time of the accident. In my opinion it is quite understandable that with the passage of time she had forgotten the sequence of movements in the seconds before the accidents.
The plaintiff was in some respects an unimpressive witness. I have no doubt that he did attempt to downplay the significance of any pre-existing symptoms arising from the accidents in 1989 and 1994. I do not accept that he was confused when he spoke to Dr Osti and Dr Guirguis in 2003 and 2004. In particular he had attempted to convey to the doctors providing medico legal opinions that his left leg symptoms had only arisen after the subject collision. He had overstated his capacity to perform work, including bricklaying, before the subject collision. Similarly, he had understated both his capacity to work following the subject accident, and the weight regime he was undertaking in 2006.
In reaching my findings of fact I have more confidently accepted the evidence of the plaintiff where it is supported by the evidence of other witnesses. Save therefore for those reservations I accept that all of the witnesses who gave evidence were truthful and did their best to accurately recall and relate the events about which they were called to give evidence even if in some cases that evidence was the product of some unwitting reconstruction.
Discussion and findings on liability
·Was the plaintiff present in the Ford Laser at the time of the collision?
I should say something specifically about the evidence of Mr and Mrs Wittup. I accept that they were both honest witnesses; and indeed that they did their best to recall the events of the day of the subject accident.
I accept that they genuinely believe that the plaintiff was not a passenger in the Ford Laser. They genuinely believe that they did not drive through the intersection following the collision, but merely turned to the left gravel lane prior to the intersection to exchange driver’s details.
I have no doubt, that at the time it occurred, they both considered the subject accident to be extremely minor. So far as they were concerned there was no damage of any significance to their vehicle. They did not report the accident to the police which again is consistent with the minor nature of the accident.
Despite some suggestions to the contrary by him, I equally have no doubt that Mr Wittup was genuinely concerned about the health of his wife, and was anxious to return to the hospital. She had been released from hospital and was due back there shortly. I have referred to her evidence that at the time she believed she had been injured in the accident. I accept the evidence of the plaintiff’s wife that Mrs Wittup appeared to her to be distressed.
I have no doubt that at the time of the accident it was drizzling as it had been intermittently that day. I do not accept that the parties remained at the scene for 10-12 minutes exchanging details, as Mrs Wittup said. I repeat the collision was a minor one and there appeared no reason for Mr Wittup to stay and inspect the Ford Laser. Various factors support the evidence of the plaintiff’s wife. She described Mrs Wittup as being distressed, and Mr Wittup explaining to her about the need to return to hospital. That evidence is, in my opinion, plainly correct. Further, Mr Wittup recalls the plaintiff’s wife making reference to the involvement of a white truck and her desire to follow that truck. He conceded that she was in a hurry to leave. It is entirely inconsistent with that evidence that the plaintiff’s wife would remain for some 10 minutes at the scene.
The evidence of the Wittups, that they pulled their vehicle over to the side of the road before the intersection, is, in my opinion, a reconstruction. Where the vehicles ended up was of no significance in respect of the accident. The plaintiff and his wife reported the accident to the police that night. Mr Wittup, in my opinion reconstructed the point of collision as being some 80 metres from the intersection because the kerb would not have allowed him to pull over, had he been only four car lengths from the intersection. Mr Wittup was unable to recall what he said to a police officer who rang him after the accident to seek information about the identity of the white truck. It was not until an insurance investigator had rung Mrs Wittup to express concern about the accident that she first turned her mind to whether there was a passenger in the Ford Laser. As I have already found, she was not in a good position to see a passenger at the time. Mr Wittup spoke frankly about his health problems since the accident. Mrs Wittup confirmed that she had suffered a more serious motor vehicle accident about a year after the subject accident on the same stretch of road. Objectively everything points to the parties remaining at the scene for a very short time. There can be no doubt that the windscreen wipers at the front of the Volvo, and the rear of the Ford Laser, were turned off when the respective drivers got out of their vehicles. I accept the evidence of the plaintiff and his wife that the rear window of the Ford Laser was difficult to see through. I prefer the evidence of the plaintiff’s wife that she stood at the driver’s door of the Volvo while the details were exchanged and that they were there only for about one minute. The weather conditions were such that Mrs Wittup would not have been in a good position to see whether there was a passenger in the Ford Laser. I am of the opinion that the evidence of Mr Wittup about his movements to and from the front of the Ford Laser, parked in the drizzling rain some metres in front of his own vehicle was an unwitting reconstruction.
The evidence of Ms Copini as to the presence of the plaintiff and his wife at her house on that day is significant. She had every reason to remember the events that day. I repeat that in my opinion she was a patently honest witness. Neither Mr Wittup nor Mrs Wittup could remember a large vase of flowers in the motor vehicle through which they claim to have had a clear view. Following the accident there is no doubt that the plaintiff attended upon Dr Ho in the afternoon presenting with acute symptoms. While it is true as Dr McCulloch had indicated, those acute symptoms may have been caused by any number of events, there can be little doubt that the event which caused those acute symptoms must have occurred around that day. Further, the plaintiff and his wife attended upon the police to report the accident at about 7.00 pm on that day.
In my opinion, these matters together with the plaintiff’s presentation to Dr Ho with acute symptoms on the evening of the subject accident, coupled with the absence of such acute symptoms for years, makes it probable that the symptoms were caused by the accident, and in particular when the Ford Laser collided with the Volvo.
Notwithstanding my reservations about the credit of the plaintiff I simply do not accept the suggestion that the plaintiff, his wife, and by implication Ms Copini, in some way conspired to falsely represent that the plaintiff suffered the injury as a passenger in the motor vehicle when he was not in fact present in the Laser. I find on the balance of probabilities that the plaintiff was a passenger in the motor vehicle driven by his wife on that day; that he was in the motor vehicle at the time of the collision with the Volvo, and that he suffered the onset of the acute symptoms referred to herein in the accident.
·Did the white truck make contact with the rear of the Ford Laser?
The degree of the involvement of the unidentified white truck is a vexed question.
I have no doubt that a white truck was travelling at the rear of the Ford Laser as it approached the Clayson Road intersection. Equally I have no doubt that the plaintiff’s wife did see the white truck very briefly in the rear vision mirror just before the collision with the Volvo. She did not see it make contact with the Ford Laser, but heard some screeching of tyres, and felt a bump. I do not accept that the plaintiff saw any contact with the white truck. In my opinion he reconstructed his account of that contact. His position in the Ford Laser would have made it unlikely he would have seen contact. In any event I accept only that he saw the truck, heard a noise and then felt a slight bump instantaneously before the Ford Laser collided with the Volvo.
On the balance of probabilities I am prepared to accept the evidence of the plaintiff, his wife and Mr Hall that the indent to the left rear passenger panel of the Ford Laser was caused by a “graze” from the white truck. The reference by the plaintiff’s wife to the involvement of the white truck was immediate and consistent. I make that finding cautiously, and conscious of the fact that the driver of that truck could not be called as a witness.[28]
[28] Turner v Nominal Defendant, supra.
I accept the opinions expressed by Mr Hall and Professor Grzebieta that the contact from the truck was minor and it did not push the Ford Laser into the stationary Volvo. It seems probable that the truck had moved towards the gravel section to the left of the Ford Laser at the time of the minor collision with the rear of Ford Laser. That seems the only reasonable inference to draw from the angle of the Ford Laser when it collided with the rear of the Volvo.
Negligent driving
I accept however the evidence of the plaintiff and his wife that such contact between the white truck and the Ford Laser occurred just before the Ford laser collided with the rear of the Volvo. I readily accept that there could be various possibilities as to why the white truck had brushed the rear of the Ford Laser. These could include the plaintiff’s wife braking sharply, causing the truck to swing too late to the gravel verge. These alternatives amount to no more than speculation on the evidence. I repeat that I am acutely aware that the driver was unidentified, and the Nominal Defendant cannot readily challenge the plaintiff’s witnesses. The onus of course always remains on the plaintiff to prove causation. It is “not discharged simply by establishing that a particular event cannot be excluded as a cause”.[29] However, even allowing for a certain amount of reconstruction in her account of her fear of being “sandwiched”, the inference is clear, and not mere speculation, that the white truck was, as the Ford Laser was approaching the stationary vehicles, dangerously close to the rear of the Ford Laser, so as to cause the plaintiff’s wife to be momentarily distracted, and then to swing to the right to attempt to avoid the Volvo. It was that distraction at a crucial time which resulted in her failing to brake in time.
[29] See Flounders v Millar [2007] NSWCA 238.
In my opinion the plaintiff’s wife was clearly negligent. This was not an agony of the moment occasion. She was simply too close to the stationary vehicles in the wet conditions to allow for such a distraction. As to the driver of the white truck, it is equally clear that he was travelling too close to the rear of the Ford Laser. The respective negligent driving occurred in the very short space as the Ford Laser was slowing down behind the stationary Volvo.
I note that this inference of a distraction to the plaintiff’s wife by the movement of the white truck accords with the opinions of the expert consulting engineers. This is not a case where one driver is solely responsible for the ultimate collision between the Ford Laser and the Volvo.[30]
[30] Cf Turner v Nominal Defendant [2008] QSC 138 at [29].
In my opinion both drivers were equally responsible for the latter collision. The brush between the white truck and the Ford laser is largely irrelevant save for the fact that it confirms how close the truck was to the Ford Laser and establishes the negligent driving of the unidentified driver. I repeat that the latter collision was minor and did not push the Ford Laser into the Volvo. Irrespective of such a brush from the white truck, the negligence of the driver was that of travelling too closely to the rear of the Ford Laser, and therefore in a dangerous manner, as it approached the stationary vehicles, thereby distracting her and causing the plaintiff’s wife to swing too late to the right.
·Which collision or collisions caused the injuries of which the plaintiff complains?
It is trite that there may be several causes for the injuries received by the plaintiff in consequence of a motor vehicle accident. See March v Stramare (supra).
In the subject case the plaintiff’s evidence was clear that the “collision” with the truck was a “slight bump” and that the onset of symptoms, namely specific pain in the lower back, had followed immediately upon the Ford Laser making contact with the rear of the Volvo. This evidence of itself is not particularly helpful. The two collisions were separated only by seconds. In such accidents it is notoriously difficult to pinpoint the event giving rise to the onset of symptoms. It would be natural in many cases to resolve this difficulty by concluding that both collisions immediately “caused” the onset of symptoms.
Ultimately I am persuaded by the opinions of the experts that the “impact” from the truck was insufficient to cause a separate injury to the plaintiff.
In my opinion the collision by the truck to the rear of the Ford Laser was of such a low level, that it did not immediately cause or contribute to whatever injury was sustained by the plaintiff. It was the collision between the Ford Laser and the Volvo which was the immediate cause of such injuries as I find were suffered by the plaintiff. However, while the immediate cause was the collision between the Laser and the Volvo, the driving of the white truck contributed to that latter collision. I do not see any reason to distinguish between each driver’s negligence. Accordingly both the driver of the unidentified white truck and the plaintiff’s wife are equally liable for that latter collision. I find each defendant liable and apportion such liability as to 50% to each of them. I proceed now with the assessment of the plaintiff’s damages. As his counsel conceded, it is a modest claim.
Damages
Discussion of the plaintiff’s pre- and post-accident symptoms
What I am faced within this case is a plaintiff who was a rear seat passenger in what was clearly a minor rear end collision which caused minimal damage to the vehicles involved. It is trite that an expert medical opinion is only as good as the foundation upon which it is based. In giving their initial opinions the medical practitioners did not have a complete and accurate history from the plaintiff.[31]
[31] See Ramsay v Watson (1961) 108 CLR 642, City of Brimbank v Halilovic (2000) Aust Torts Rep 81-549.
I approach with caution the plaintiff’s account of the disabilities already received by him in the accident.
My ultimate assessment of his damages is complicated by the plaintiff’s pre-existing disabilities in consequence of previous accidents in 1989 and 1995; and a dearth of evidence about the time off work taken by the plaintiff, both before and after the subject accident.
Findings as to pre accident disabilities
I make the following findings notwithstanding some concerns as to the plaintiff’s credibility in respect of the statements attributed to him in the compromise of proceedings arising out of the 1989 work accident.
There can be no doubt that in the 1989 work accident, the plaintiff suffered a disc prolapse at the L4/5 level. In consequence he suffered pain in his lower back and developed left leg pain. By about September 1990 his pain in the lower back was reduced, and there was little or no pain in the left leg. The 1993 motor vehicle accident did not result in any significant symptoms. This lower back injury was aggravated by the work accident on 17 October 1994. Thereafter it took some time to settle. There were occasional flare ups particularly in 1995 which resulted in increased pain in both the lower back and occasionally also radiating down to the calves in both legs. Thereafter he gradually improved, prior to the subject motor vehicle accident.
The plaintiff’s employee history report, tendered by the Nominal Defendant,[32] disclosed consistent absences on sick leave in 1997, 1998, 2000 and 2002. Some of the entries disclosed “sick leave entitlement”, others simply referred to as “sick leave”.
[32] Exhibit D1-18.
The Nailsworth Clinic notes make it clear that the plaintiff attended regularly on unrelated matters, including throat ailments.
The defendants’ counsel were justifiably critical of the paucity of evidence called by the plaintiff as to his absences from work prior to the collision. The employment records were effectively prepared by the plaintiff personally.
It is apparent that the plaintiff would always use his award entitlements to sick leave prior to the accident, and I accept that on occasions they related to his lower back and left leg symptoms.
In my opinion, between late 1995 and the subject accident, the plaintiff was generally able to cope with his normal activities as a clerical worker, including the lifting and carrying of his employer’s files. I accept the evidence of Ms McKechnie in that respect. He was also generally able to perform him recreational activities and domestic duties including gardening. I have reached that latter conclusion notwithstanding the terms of his letter of claim to WorkCover of 12 May 1992, and paragraph C of the Particulars of Loss to which he deposed on 15 October 1992, in which he detailed alleged restrictions in performing such work. On balance, I find that he suffered severe symptoms only rarely, and he continued to suffer only occasional pain in his lower back and left leg throughout the seven year lead up to the subject accident. I do not accept his evidence in chief as to his ability to do bricklaying work. In my opinion, prior to the subject accident he was unable to undertake heavy work, nor work which required him to bend, twist or carry heavy weights.
The effect of the subject accident
The respective counsel for the defendants submitted that because of the previous accidents the plaintiff was susceptible to spontaneous aggravations of his pre-existing symptoms. They submitted that I should find that the plaintiff’s presentation to Dr Ho on 16 September 2003 was such a spontaneous event and unrelated to the subject accident. They pointed to his “collapse” one week later with severe sciatic pain as again an unrelated event.
I readily accept the evidence of all of the medical experts to the effect that such events may be spontaneous and occur irrespective of whether the plaintiff had been injured in the subject accident. However the plaintiff’s medical history, particularly between 1995 and 2003 suggested that such events were rare, and in any event of short duration.
In my opinion, however, and notwithstanding my expressed concerns about the plaintiff’s evidence, the plaintiff suffered a lower back strain with lumbar spasm of increased severity and duration as a direct consequence of the subject accident. I have no doubt that the acute symptoms observed by Dr Ho on 16 September 2003 were directly caused by the accident, which had occurred a few hours earlier. These observations were consistent with Dr Osti’s observations of his straight leg raising on 13 October 2003. I do not accept the proposition that it was an unrelated spontaneous event. Similarly I find that the “collapse” event one week later was the direct consequence of the accident and not a spontaneous event.

In my opinion, the subject accident had the effect of aggravating the plaintiff’s pre-existing disc prolapse. It increased both the severity and regularity of the symptoms of low back pain and sciatica in the left leg.
Accordingly the plaintiff’s damages fall to be assessed upon the basis that his pre-existing symptoms were aggravated in the subject accident. If the plaintiff was more susceptible to increased symptoms by reason of his previous accidents, then the defendants must take him as they found him.[33] However, the susceptibility of the plaintiff to such events occurring spontaneously is a matter which must be taken into account in the vicissitudes of life.
[33] See Shorey v P.T. Limited (2003) 197 ALR 410, and Watts v Fenton [2001] SASC 305.
I prefer the opinions implicit in the evidence of Dr Osti and Dr Ho that the plaintiff had suffered increased and permanent symptoms despite the minor forces in the accident, to that of Dr McCulloch insofar as he opined that the symptoms ought to have ceased after a few weeks.
I do not however accept the present high level of the symptoms complained of by the plaintiff. In my opinion the plaintiff has embellished the present level of his symptoms. I also do not accept that there will be a need for future treatment, whether by surgery or epidural blocks.
In my opinion the level of pain and its regularity had reduced significantly at the latest by the end of 2006. I reach that conclusion in consequence of the following:
·The video film of the plaintiff at the gymnasium in September 2006.
·The evidence of Ms McKechnie as to the gradual diminution in the time off work taken by the plaintiff such that he had little time off in 2007.
·The evidence of the physiotherapist Mr Fuller as to the minimal impact in 2006 upon the plaintiff’s ability to perform his daily activities. I do not accept the plaintiff’s assertions to Mr Fuller of a subsequent deterioration in 2008.
·The evidence of Dr McCulloch that the plaintiff had told him on 2 August 2006 that he had improved over the three-year period.
·The evidence of Dr Ho that he had seen the plaintiff only seven times over a two-year period and that the management had been conservative.
I accept that the gymnasium work undertaken by the plaintiff had assisted in that reduction in symptoms. I accept the revised opinion of Dr Osti, that the plaintiff has a 7.5% loss of function of the lumbar spine as a whole in consequence of the accident, in addition to that which existed before.
Assessment of damages
The plaintiff was born on 26 November 1971 and was thus aged 36 years old as at the date of trial. His entitlement to non-economic loss is governed by s 24B(2)(c) of the Wrongs Act 1936, as it applied at the time of the accident.
Non-economic loss
The plaintiff’s ability to lead a normal life was significantly impaired by the exacerbation of the lower back and left leg symptoms for a period of at least 7 days as required under s 24B(1) of the Act.
I accept that following the accident the plaintiff suffered increased pain in the lower back and from sciatica and numbness in his left leg. This level of pain was much greater than the pre-accident pain, and more constant. I have no doubt that at least for a 12 month period the symptoms were quite debilitating and the plaintiff was able to work initially on a part-time basis, taking considerable periods of leave from work. I have no doubt it adversely impacted upon his enjoyment of recreational activities such as fishing, hiking and camping. I accept the evidence of Ms McKechnie that at least to the end of 2006 the plaintiff needed assistance with files at work. Since the accident the plaintiff would attend upon Dr Ho, and take one to two days off in the event of increased pain from bending or lifting.
I assess the plaintiff therefore on the basis of initial significant impairment diminishing over time to the end of 2006. While he continues to suffer some pain with his domestic duties and recreational activities, these are manageable. Heavy work continues to cause more severe symptoms. I do not mean to suggest that the symptoms have now completely resolved, but they are manageable by the plaintiff, so that he is able to undertake the heavier garden activities. I take account of the risk of a spontaneous, unrelated exacerbation in the future. The fact remains that it is now some six years since the accident, and the plaintiff still occasionally suffers pain.
I fix a numerical figure of 8. The relevant multiplier for an accident in 2003 is 1,150. I therefore assess the component of non-economic loss as $9,200.
Past loss of earning capacity
The plaintiff’s taxation returns disclose the following income received by the plaintiff from his employment as a clerk.

Year Ending Gross Income Tax Paid

30/6/00 $37,287 $8,699

30/6/01 $37,188 $7,536

30/6/02 $37,282 $7,564

30/6/03 $37,589 $7,656

30/6/04 $38,486 $8,197

30/6/05 $46,496 $10,957

30/6/06 $49,628 $11,548

30/6/07 $48,347 $10,542

30/6/08 $52,114 $11,058

As is apparent from this schedule, the plaintiff has received his full income since the accident. Of course the plaintiff is entitled to be compensated for the loss of earning capacity rather than lost income, but the loss will not be recoverable unless the loss of earning capacity has been or will be productive of financial loss.[34]
[34] Medlin v SGIC (1995) 182 CLR 1 at 4 and 16, and Husher v Husher (1997) 197 CLR 138 at 143.
In the subject case the plaintiff submits that although he was paid in full by his employer, he used up all of his sick leave and other forms of leave, and indeed his long service leave. He seeks therefore some allowance to compensate for the loss of entitlement to sick leave, and for the loss of long service leave.[35]
[35] See Graham v Baker (1961) 106 CLR 340 cf Luntz "Assessment of Damages" 4th edition, paragraphs 8.3.4 - 8.3.6.
As I have already said, there was a dearth of evidence about the contractual relations between the plaintiff and his employer, save that it was of a close extended family nature. Counsel for the Nominal Defendant, Mr Austin, submitted that I ought not make any allowance for the long service leave taken by the plaintiff. He made a detailed submission to the effect that there had been non-compliance with the provisions as to continuous leave and as to notice as prescribed in s 7 of the Long Service Leave Act 1987, such that the plaintiff could still demand his entitlement to such leave. He submitted that no allowance should be made to the plaintiff to compensate for such loss. S 7(4) of the Act permits the parties to reach agreement to opt out of those requirements. I do not accept in the present case where an express or implied agreement between the plaintiff and his employer for the taking of such leave can be readily inferred from the evidence, that the plaintiff could at law maintain such an entitlement to long service leave. In my opinion the plaintiff would be estopped by his own conduct in attempting to rely on the strict terms of s 7 of the Act, and in particular the absence of notice under the Act.
Accordingly the plaintiff is, in my opinion, entitled to be compensated for the loss of sick leave and long service leave entitlement. The only evidence of the losses for sick or long service leave is that contained in the schedules of the plaintiff’s leave. They are frankly inadequate for the task of determining the true basis for the plaintiff being absent, whether it be on sick leave, annual leave or long service leave. Indeed, some of the dates reflect attendances upon doctors for medico-legal purposes. Some must relate to other illnesses, including throat problems. Some were unrelated to illness at all. In a general sense, after disallowing, in accordance with the Act, the first week off work, I am prepared to accept that the plaintiff was only able to work part time for about five months and thereafter regularly lost occasional days until about July 2006, because of the symptoms from the accident. I am prepared to accept that some of those days taken as long service leave represent time lost in consequence of the subject accident. From July 2006, the plaintiff has missed only the odd day because of the accident. While there is some assistance from exhibit P15, setting out a list of days said to fall within that category, this is not a case where one can with precision determine the past loss of earning capacity. I am still obliged to do my best on the available evidence.
I fix a net loss of $4,700 after deducting the first week, so as to compensate for the loss of leave. I will not allow any interest component as the nature of the claim is for the loss of leave to be taken in the future.
Future loss of earning capacity
There is no doubt that the plaintiff is employed in a remunerative field of employment with an understanding employer. In my opinion, and consistent with the opinion of Dr Butcher, the plaintiff was only fit for such a sedentary type of employment even prior to the subject accident.
The plaintiff is hopeful that he will remain in his current position for the rest of his working life. I do however accept the opinion of the psychologist, Chris Goulding, in his vocational assessment reports that in the event of a change in vocation, or indeed, by inference, a change of employer, he would be at a disadvantage in the open labour market in competing with fitter, better qualified or more experienced candidates. See Wade v Allsopp (1976) 50 ALJR 643.
The plaintiff had previously attempted bricklaying as an alternative in the past, as I have already noted. I have referred to the adjusted assessment by Dr Osti that the plaintiff has a loss of 7.5% function of the lumbar spine on top of his pre-accident disability. He is now at a greater disadvantage against the rest of the community than he was prior to the accident were he to lose his employment. He is presently employed by a considerate employer, and this enables him to get assistance with files. Some allowance must be made for the contingency that he may find himself on the labour market. In my opinion this is a genuine risk notwithstanding his family connections. The plaintiff is a relatively young and ambitious man with most of his productive working life in front of him. He is presently employed in a high income position.
I must however weigh up all of the contingencies. Even prior to the accident the plaintiff was at a disadvantage because of his pre-existing disabilities. He also then faced, as he does now the risk of a spontaneous aggravation. In my opinion a relatively modest sum ought be allowed for the risk.
I fix the sum of $20,000 as compensation for that risk, including superannuation, which also allows for the contingencies including an unrelated spontaneous exacerbation of his symptoms.
Voluntary services
I have already referred to the concerns expressed by counsel for the defendants as to the evidence of the plaintiff and his wife on this topic. Those concerns were justified because of the inconsistencies evident in their respective claims after the accident. It is probable that the plaintiff continued to perform his domestic tasks after the accident, albeit at a reduced level, and the plaintiff’s wife continued to perform the cleaning duties in the house. This seems consistent with the reports of Mr Fuller. In any event, I am not satisfied on the state of the evidence that the plaintiff’s wife provided any assistance to the plaintiff in the past. I have already found that the plaintiff will not require surgery nor epidural blocks in the future. Accordingly no allowance has been made for past or future voluntary services.
Past special damages
As I have noted, in exhibit P24, a schedule of past medical expense, was tendered. It was agreed as to quantum but not as to liability.
In general all of those expenses relate to either attendances upon medical practitioners, physiotherapists, chiropractors and masseurs. The dates of the treatments generally all within the period 16 September 2003 and 10 July 2006. save for one consultation upon Dr Ho on 6 October 2007. It was not suggested that the various treatments were unreasonable. In my opinion they were both reasonable and necessary.
Part of the claim is for gym fees of $749.75 to Next Generation gym; $175.00 to Healthworks gym and $700.70 to Fitness First gym. In my opinion they were undertaken on the recommendation of Dr Ho and were reasonable in order to improve the plaintiff’s level of fitness.
I also allow in full the amended travelling and chemist expenses.
The total payments are as follows:
Payable to Motor Accident Commission            $1,981.88
Payable to plaintiff  $4,604.64
  --------------
  Total                $6,586.52
  ========
Special damages are thus assessed in the sum of $6,586.52, subject to any directions sought as to the repayment of the sum of $1,981.88 to the Motor Accident Commission.
Future medical expenses
On the basis of my findings, the plaintiff has since 2006 rarely consulted any medical practitioner for treatment, and has had a diminishing need for medication for pain relief. He had voluntarily given up his membership of the gymnasiums and expressed his lack of motivation to continue with it. I will not allow for future membership accordingly. At best, on the state of the evidence I ought to make a very modest allowance for future medical treatment to allow for the occasional visit to a general practitioner and for medication. I allow the sum of $300 accordingly.
Summary
Non-economic loss  $9,200.00
Loss of earning capacity:
     Past  $4,700.00
     Future  $20,000.00
Special damages  $6,586.52
Future medicals  $300.00
  --------------
  $40,786.52
  ========
I have found both defendants liable, with liability apportioned 50% to each of them.
There will be judgment for the plaintiff in the sum of $40,786.52 including interest.
I will hear the parties as to costs, and orders for the repayment to the Motor Accident Commission.

Year Ending	Gross Income	Tax Paid
30/6/00	$37,287	$8,699
30/6/01	$37,188	$7,536
30/6/02	$37,282	$7,564
30/6/03	$37,589	$7,656
30/6/04	$38,486	$8,197
30/6/05	$46,496	$10,957
30/6/06	$49,628	$11,548
30/6/07	$48,347	$10,542
30/6/08	$52,114	$11,058