| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : KUKULJ -v- WRIGHT & ANOR [2002] WADC 243 CORAM : WISBEY DCJ HEARD : 4-6 NOVEMBER 2002 DELIVERED : 22 NOVEMBER 2002 FILE NO/S : CIV 1894 of 2000 BETWEEN : VLADO DANIEL KUKULJ Plaintiff
AND
BRIAN WRIGHT
First Defendant
DEPARTMENT OF TRANSPORT
Second Defendant
Catchwords: Negligence - Highway - Collision between bus and motor car when bus driver turned across path of motor car at traffic signal controlled junction as lights were amber - Negligence of bus driver - Contributory negligence of driver of motor vehicle
Personal injuries - General damages for soft tissue cervical injury - Assessment of loss of capacity
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Legislation:
Nil
Result: Negligence established against defendants. Plaintiff's contributory negligence
assessed at 25 per cent. Damages assessed at $772 after reduction for
contributory negligence. Representation:
Counsel:
Plaintiff : Mr T Lampropoulos
First Defendant : Ms B A Mangan
Second Defendant : Ms B A Mangan
Solicitors:
Plaintiff : Simon Walters
First Defendant : Phillips Fox
Second Defendant : Phillips Fox
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
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1 WISBEY DCJ: Vlado Daniel Kukulj born 28 August 1976 was involved in a motor vehicle accident on 22 November 1996 when a Ford Fairlane sedan (the Ford) he was driving in a north easterly direction in Broun Avenue, Morley, collided with a Renault bus (the bus) being driven by the first defendant in a south westerly direction in Broun Avenue aforesaid, as it made a right turn in front of the Ford at the Russell Street junction. Both liability and quantum are in issue.
Liability 2 The plaintiff stated that he was proceeding along Broun Avenue at approximately 60 km/h and as he approached the lights at the Russell Street junction he observed the bus which had crossed the white line on the north eastern side of the junction and was "heading south on Broun Avenue turning right on to Russell Street". He eased off the accelerator and as he approached the white line on the south western side of the junction, noticed the bus start nudging forwards. As a consequence he applied the brakes of the Ford which skidded and the vehicles collided. The plaintiff stated that he had the impression that the first defendant intentionally drove the bus into the Ford. He stated that the front right headlight area of the bus collided with the right front wheel arch of the Ford which careered left and struck a traffic control light pole. The plaintiff's evidence was that the traffic control signal facing him was green and turning to amber as the Ford entered the junction. The Ford was a write-off. 3 The plaintiff denied that he moved from the kerbside lane to the centre lane as he approached the lights, maintaining that he had always been in the centre lane. He said he was 20 to 30 m from the junction when he saw the bus, which had its right turn indicator on and was turning right into Russell Street. He was adamant that there were no stationary vehicles in Broun Avenue south of the junction; although later said that there were two cars to the left of and in front of the Ford going through the junction when he noticed the bus coming forward. He denied accelerating into the junction. When asked which traffic control light was illuminated as the Ford crossed the white line and entered the junction, he initially expressed the belief that the lights were on "borderline amber, if not amber", but later indicated that he did not know. He was referred to a statement he gave to a police officer immediately after the accident (a statement which after some prevarication he acknowledged to be his) (Exhibit D1) in which he relevantly stated:
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"I was travelling northerly on Broun Avenue in the outer lane at approximately 60 km/h as I approached the intersection of Broun Avenue and Russell Street. As I approached this intersection the lights turned amber. I went to travel through the intersection as the lights had only been amber for around one second when a bus turned right in front of me from Broun Avenue. I immediately braked and the bus struck me on the righthand side of my vehicle." 4 The plaintiff denied that the traffic control signals turned amber as he approached the junction, then appeared to resile from that position, and finally asserted in response to a question as to whether he looked at the lights as he was going through the junction "I recall them being green. I recall the bus going forward. I can't recall exactly what that is you're talking about". 5 The first defendant was at the material time a bus driver in the employ of Metro Bus, a business operated by the second defendant. He gave evidence that immediately before the accident he was driving south west in Broun Avenue intending to turn right at the Russell Street junction. He activated the righthand trafficator approximately 100 m from the junction. When he got to the junction the traffic control signals facing him, including the righthand turn arrow, were red, and as a consequence he brought the bus to a stop at the stop line. When the red arrow cancelled, and the lights facing him changed to green, he moved into the junction. The lights then changed to amber and oncoming traffic stopped and he was signalled to complete his turn. His recollection was that the oncoming traffic was in the kerbside lane and the centre lane was free of traffic. As he commenced his turn, the Ford which was in the kerbside lane, swung out from behind a stationary vehicle into the centre lane and accelerated through the amber light. The first defendant claimed that at that time the bus was a couple of metres – perhaps a bus length – into the junction, and although he applied the brakes, the right front of the bus made impact with the Ford. 6 The first defendant stated that he was very familiar with the junction, having driven through it on many occasions. His description of the light sequence was not terribly convincing, but he indicated that there was a green right turn arrow in the sequence. Immediately before making the turn the bus was in the right turn only lane. The first defendant estimated that he was stationary in that lane for about 5 to 10 seconds before the red arrow cancelled, and the light turned green. He claimed that whilst stationary he noticed the Ford in the kerbside lane behind other vehicles,
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and that when it changed lanes it was approximately 10 to 13 m away from the bus. It was at that moment that the Ford commenced to accelerate, and as it approached the bus under acceleration it swerved left and clipped the front right corner of the bus. 7 The defendant indicated in cross-examination that when he first observed the Ford change lanes and accelerate, the traffic control signal was green, quickly changed to amber, and had started to change to red when the Ford crossed the southern white line. The defendant made it clear that the bus had commenced to move right when the collision occurred. His evidence changed to a position where he asserted that he had already commenced to turn into Russell Street when the Ford changed lanes and accelerated, and the lights were amber but had changed to red by the time the Ford reached the southern white line. The bus was partially obstructing the centre northbound lane at the time of impact. 8 The defendant was referred to an accident report completed by him shortly after the accident (Exhibit P3) in which his account of the accident was basically in line with much of what he said in cross-examination, save that it does not suggest that the bus stopped in the intersection. Notwithstanding, the defendant stated that the position was "I moved out and stopped, and then when the other traffic stopped coming towards me I then moved to complete the turn". The accident report suggested that Ford entered the junction on an amber light, whereas the defendant asserted in evidence that it contravened a red light. 9 It is a notorious fact that the critical events before an accident are sudden and unexpected with the consequence that recall thereof generally amounts to a reconstruction, and although genuine may be unreliable. To an extent I think that is what has happened here. 10 I found the plaintiff's evidence generally unreliable, and am of the view that much of what he said, particularly in respect of quantum, was knowingly incorrect. I have no confidence basing findings of fact upon it. I also considered the first defendant's evidence as to the circumstances of the accident inconsistent and unreliable, and although I did not consider he attempted to mislead, I am confident that a lot of his evidence was based on reconstruction. In the result it is necessary to determine the issue of liability on the preponderance of probability. 11 It is clear that the accident occurred when the bus commenced to turn right into Russell Street. I am satisfied that the first defendant commenced to turn when the traffic control signal facing him changed to
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amber, and an oncoming vehicle or vehicles in the kerbside southbound lane in Broun Avenue became stationary at the junction. Notwithstanding that the light facing traffic in Broun Avenue changed to amber and the plaintiff could have brought the Ford to a stop at the white line he chose not to do so, proceeding into the junction aware that the bus was about to execute a right turn. 12 The first defendant was negligent. He should have anticipated that the Ford might not stop at the lights, and refrained from commencing to turn right until it had either stopped, or alternatively passed safely through the junction. The accident was primarily the fault of the first defendant. 13 The plaintiff was also negligent. He proceeded into the junction when the traffic control signal facing him had changed to amber, conscious of the fact that the bus was intending to turn right, and did not exercise the care that was required in the situation. Had he been driving with due care he could have stopped. In my view his contribution to the accident is of the order of 25 per cent. He is entitled to recover 75 per cent of his assessed damages.
Quantum 14 The plaintiff received his secondary education at Trinity College, completing the TEE in 1993. The evidence is silent as to his academic achievement. He said that he excelled at rowing, and upon leaving school was selected by the talent identification programme and trained with the West Australian Institute of Sport. It appears from his evidence that training occupied a large portion of his time for the first quarter of the year, continuing at a lesser extent during the off season. He had an ambition to be in the Kings Cup crew. Employment appears to have been a secondary consideration and he initially engaged in car stereo installation, which does not appear to have been very remunerative. His other pursuits were golf and martial arts, and he claimed to have been the manager and instructor of a martial arts group, although again that was not particularly remunerative. The plaintiff stated that he worked for Daytona Security Services where he was engaged in crowd control and bodyguard duties, and claimed that he cycled 40 to 50 km once a week. His primary ambition was to represent Australia in rowing, and he also had business aspirations. It is the plaintiff's case that the accident frustrated the realisation of his social and vocational potential. 15 Following the accident the plaintiff was taken to Royal Perth Hospital, and after assessment was discharged and rested at home for
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some days, lying on the lounge in front of the TV. He claimed that he felt "major discomfort" which translated as being strong neck, back, and right upper limb pain. 16 Several days after the accident the plaintiff contacted his general practitioner, Dr Cranley, and was referred for physiotherapy which he received until advised that the cost thereof was not being met by ICWA. He stated that physiotherapy was effective and resulted in an 80 per cent recovery. He also received massage and engaged in some forms of martial art and swimming. 17 The plaintiff stated that he was rushed to hospital on 1 January 1997 having strained his neck shifting furniture. He believed that the medical practitioners who attended him suspected that he had meningitis, and not satisfied with their views he discharged himself the following day. 18 It appears from the plaintiff's evidence that he ceased involvement in rowing in 1997 having come to the conclusion that he would not row for Australia, allegedly because of the effect his injuries were having upon him. He looked for a sales position and commenced with a firm Barter Card but was unable to cope because he had difficulty getting out of bed in the mornings. He was also in a lot of pain which he claimed was sensed by his commercial contacts who declined to deal with him because of his condition. Inability to concentrate was also a vocational impediment. 19 On 29 August 1997 the plaintiff attended a sales meeting and thereafter was driving to a sales appointment when he ran into the back of another vehicle. His vehicle was doing approximately 20 km/h on impact. He was not injured. 20 The plaintiff stated that in addition to working with Barter Card he developed his own business interests and concepts including Comfort Choice Lounge Design, Online Information Systems, Shell Operation Livewire, Australian Housing Services and Auto For Sale. He also went to Croatia to attend his grandfather's funeral and during the trip took the opportunity of establishing business contacts in London. 21 The evidence does not disclose that any of the plaintiff's business pursuits were successful. Indeed the plaintiff's evidence concerning his business concepts left me with a firm feeling that he lost touch with reality. His description of the development of the concept Australian Housing Services (T 23) and Auto For Sale (T 29) is eloquent of this fact.
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22 The plaintiff was admitted to Sir Charles Gairdner Hospital in 1999 because of some unexplained episode, and promptly discharged himself.
23 In January 2001 the plaintiff began a rehabilitation course through Commonwealth Rehabilitation Services, and as a result underwent work experience or trials with Davies Real Estate, Blackburn Real Estate, and several automotive companies. 24 When asked to describe his symptoms between the date of the accident and trial, the plaintiff referred to regular headaches, nausea, neck pain, shoulder pain and upper back pain (although he indicated that the back pain had not really been a problem). He stated that he had ingested various forms of medication including anti-depressants, analgesics and anti-inflammatories. Present treatment consists of laser acupuncture, massage and medication, but the plaintiff has ceased anti-depressants. In response to a leading question the plaintiff referred to jaw pain which he claimed had been present since the accident, and he stated that he wore an occlusal appliance on an as need basis. 25 During cross-examination the plaintiff had a tendency to prevaricate and purported to not hear, or have difficulty understanding straightforward questions. Time and again he required counsel to restate questions the effect of which must have been obvious to him, and I felt that he was buying time to enable him to accommodate the question by responding in a manner that was favourable to him. The transcript demonstrates, but does not do full justice to his performance. 26 The plaintiff confirmed in cross-examination that he did not have any documentation to support pre- or post-accident earnings save for an income tax return for the year ended 30 June 1996 showing an income of $4,402 from Daytona Security Services, (although he claimed that his income from that source was more than that). At one stage he stated that he did not have proof of vocational income because "my record keeping was not the best". Somewhat at odds with his claimed business acumen. 27 The plaintiff's evidence generally as to his vocational history was vague and unconvincing. He agreed that subsequent to the accident he traded his golf clubs for a wave ski, but claimed that he was unable to use the wave ski regularly because of his symptoms, and sold it. He claimed that the ingestion of marijuana had assisted his motivation, and agreed that he had experimented with amphetamine. He agreed that in or about March 2001 he told CRS that he was interested in a career in real estate, but was not interested in wasting his time in any dead end business. He
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confirmed that his partner and himself lost $60,000 in Australian Housing Services. He stated that his injuries prevented him completing a REIWA course, although it does appear there were personal issues involved. He stated that he did not obtain employment with CRS assistance because his interest was in creating his own business. 28 The plaintiff was referred to other accidents in which he had been involved, in all of which he was the party at fault, and in respect of which he does not appear to have received any injuries or exacerbated those which it is claimed he received in this accident. He was cross-examined as to alleged altercations with a person at REIWA and with the Murdoch University Rowing Club in particular, which suggested that he might experience some difficulty in relating to others. The plaintiff confirmed that his driver's licence was suspended for a period of six months in 1994, three months in 1998, and three months in 2001, which also suggests a degree of social irresponsibility. 29 The plaintiff called Marinko Pecotic, a public accountant of 12 years standing, who had prepared a report for the plaintiff on the financial viability of the proposed business venture Australian Housing Services (MFI P1). The capacity of Mr Pecotic to express the conclusions in the report were challenged by the defendant. Mr Pecotic stated in respect to expertise, that in his capacity as a public accountant he has involvement with the operation of businesses; advising in respect of the financial structure of individual businesses, partnerships, trusts, and companies; and the restructuring of businesses. In the course of such activities he would engage in cash projections, and budgeting. It appeared, however, that his involvement in such matters was limited. Dealing specifically with his report he stated that he based it upon information provided by the plaintiff, and an assumption that the plaintiff had the salesmanship qualities necessary for the success of the proposal. Apart from that assumption Mr Pecotic also based his assessment upon the assumed facts numbered 1 to 6 in the report, none of which were established by evidence, or were matters in respect of which he had any particular expertise. In the result his assessment as to the profitability of the plaintiff's proposal amounted to an unqualified opinion based on hope rather than experience. It is not of probative consequence and I reject it.
The medical evidence 30 Medical evidence was adduced by the consent tendering of a book of medical reports (Exhibit P2), and the absence of oral testimony from any of the medical practitioners makes the task of assessment of the plaintiff's
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injuries and symptoms more difficult. Having said that, the probative value of the medical evidence is necessarily dependent upon and conditioned by the reliability of the plaintiff's account of symptoms. 31 A Royal Perth Hospital report dated 20 November 2001 recorded that following the accident the plaintiff attended the Emergency Department complaining of pain in his right wrist, right shoulder, and neck. Examination revealed bilateral neck tenderness and a full range of wrist and shoulder movement. Radiological examination was unrewarding. The plaintiff was discharged in a soft collar following a diagnosis of soft tissue injury, and it was reported "he has attended Royal Perth Hospital since 1998 for treatment of neck pain, however, it appears that these symptoms occurred after a further accident". 32 A further report dated 19 April 2002 recorded that on initial presentation the plaintiff did have some tenderness and restriction of wrist movement. 33 The plaintiff attended his general practitioner, Dr Cranley, on 25 November 1996 who on 13 May 1997 reported that he presented with headaches, neck stiffness, and numbness extending down the right hand. Dr Cranley confirmed the diagnosis of soft tissue injury and referred the plaintiff for physiotherapy on 5 December 1996. When he reviewed the plaintiff on 21 January and 18 February 1997 there were continuing complaints of neck pain. Dr Cranley stated that neck injuries could result in limitation of movement and partial restriction of work capacity, but pointed out that the plaintiff had not mentioned vocational difficulty. He concluded the report by stating that "he tends to be a rather slap happy patient who presents at irregular intervals, not keeping appointments, so his present state of health is unknown". 34 In a report dated 16 September 1998 Dr Cranley noted that the plaintiff had been seen by orthopaedic surgeons, Mr W Gilmour and Mr J M Hill, and although both confirmed that there was no major lesion, Dr Cranley considered that the history of soft tissue injuries was that they could continue to give rise to symptoms for about four years. He referred to a hospital admission on 11 August 1998 because of complaints of vertigo, diplopia and neck pain, and suggested that the plaintiff's injuries had been complicated by a further minor motor vehicle accident in June 1998. Dr Cranley recorded that the plaintiff's symptoms were causing quite severe emotional problems.
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35 On 10 October 2002 Dr Cranley reported that the physical injuries were not of a high order and physical limitations minimal; there should be no restriction on work activity; but psychosomatic factors had developed and he was not competent to comment on those factors.
36 On referral from Dr Cranley the consulting orthopaedic surgeon, Mr Gilmour, reviewed the plaintiff on 11 March 1997. He recorded the accident history and complaints of neck and back pain, and stated that the plaintiff complained that he was under a lot of stress, was unable to sleep, and needed medication. Clinical examination revealed slight limitation of cervical rotation, but an absence of abnormal neurological signs. Mr Gilmour was of the view that the plaintiff had sustained a stress injury to the soft tissues in the cervical spine from which he was slowly recovering. Because he considered there was a marked psychological component he suggested to the plaintiff that he seek appropriate assistance, but the plaintiff was not interested. Mr Gilmour considered that the plaintiff was fit for work as a car salesman. 37 On 14 July 1997 Mr Gilmour reported surprise at the amount of physiotherapy the plaintiff was receiving, stating that "physiotherapy assists in the early stages but then it does not become effective. Indeed, if manipulative treatment is employed, I often find that it does perpetuate the underlying problem". 38 Mr J M Hill examined the plaintiff at the request of Dr Cranley in August 1997 and in a report dated 12 August 1997 referred to the accident history and complaint of symptoms. He stated that examination revealed tenderness in the trapezius muscles and mid-cervical region, with some restriction of cervical movement. He considered the plaintiff had probably sustained a ligamentous injury of the cervical spine with secondary muscular weakness and facet joint stiffness, and recommended strengthening exercises for the cervical musculature. He did not think the plaintiff had sustained a severe injury, and felt that symptoms would resolve with regained neck muscle tone and strengthening. 39 On 3 May 2002 Mr Hill reported having on 26 April 2002 reviewed the plaintiff who claimed to have continued to experience symptoms notwithstanding physiotherapy and an exercise programme. Mr Hill referred to other accidents in which the plaintiff was involved in 1999 and 2000 which were not productive of further symptoms (the plaintiff was responsible for each accident). He reported that examination revealed some limitation of cervical movement, and concluded that the plaintiff had a mild ligamentous injury of the cervical spine with some referred
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C7 symptoms in the right arm, but without significant neurological compromise. The only treatment he recommended was occasional physiotherapy. Mr Hill did not expect the mild physical disability to impact significantly on the plaintiff's work capacity, considering that the alleged incapacity was "more a problem of motivation and concentration rather than pain and disability from his cervical spine". He assessed a permanent mild grade disability of the order of 15 per cent of loss of function of the cervical spine. 40 In a detailed report to the plaintiff's solicitor on 22 October 2002 Mr Hill confirmed his earlier diagnosis. 41 The plaintiff transferred his general medical care to Dr Burmej of the Boronia Medical Group who he commenced seeing on 8 April 1999, and has since consulted him or Dr Chaney of that practice on about 44 occasions. 42 The various reports on file from the Boronia Medical Group refer to: (a) complaints of ongoing symptoms including constant neck pain, right arm pain, headaches and depression; (b) little in the way of objective clinical evidence of compromise; (c) mild impairment of movement; (d) the treatment undertaken including physiotherapy, hydrotherapy, massage, acupuncture, reflexology and counselling (much of which was undertaken as a result of the plaintiff's initiative); (e) a view that the plaintiff was fit for full-time work notwithstanding that he claimed that the accident had substantially impaired his capacity to work as a businessman or entrepreneur because he was not able to rise from bed before 9.30 am, to arrive at appointments on time, or have the necessary motivation and drive; (f) the review immediately prior to trial when the plaintiff asserted that he was no longer suffering from depression, his confidence had returned, and he was "one of the best". 43 Dr Burmej referred the plaintiff to another orthopaedic surgeon, Mr McCallum, who saw him initially on 8 January 2001, when the
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plaintiff told him that "he takes pot, probably 15-20 a week". Having regard to that fact, and his generally garrulous presentation, Mr McCallum contemplated that substance abuse might be a problem. He declined to assess the plaintiff until 31 January 2001 by which time his presentation had altered dramatically in that his speech was not slurred and he was capable of conversing sensibly. Mr McCallum reported that apart from signs of very minimal C7 nerve root problems on the right, the plaintiff's difficulties were essentially non-orthopaedic in nature. He reported: "What is more interesting is his headaches, photophobia, blurred vision and nausea and one wonders about migraine and such problems as that or cerebral tumour but the MRI has ruled out the latter. I wonder whether he should not be referred to a physician to see if it could be explained on a migrainous basis." 44 Mr McCallum reported on 10 April 2002 that he saw the plaintiff the previous day when his presenting complaints were of constant bilateral high cervical posterior neck pain extending into the right shoulder and down the right arm to the hand. The plaintiff claimed that he was taking substantial amounts of Voltaren. Mr McCallum was unable to find any definite evidence of injury and as a consequence, and not surprisingly, stated that the prognosis was good. 45 The plaintiff's solicitor referred him to an occupational physician, Dr Harper, who saw him and reported on 26 November 2001. The plaintiff told Dr Harper that he was working 20 to 40 hours a week in a business, although only 10 to 15 hours were productive. He claimed his work involved telephone calls, visiting retailers and packaging his product. Dr Harper described the plaintiff's presentation as appearing to be somewhat distressed, sighing and rubbing his face, with a lack of precision identifying his symptoms, and being a poor historian. It appears that Dr Harper could not identify any firm clinical evidence of injury, and appeared unconvinced as to the plaintiff's complaints. Doing the best he could, he regarded the plaintiff as having sustained a mild strain injury to the cervical spine resulting in a mild residual disability. 46 Dr Harper reviewed the plaintiff on 18 October 2002 and in a report bearing that date again expressed the view that he was not physically distressed. He reported that the plaintiff "sustained a mild strain injury of the cervical spine in the initial motor vehicle accident which became complicated by impaired adjustment to symptoms". He confirmed the plaintiff had some very mild residual disability.
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47 A friend encouraged the plaintiff to attend the dental surgeon, Mr Kennedy, on 29 June 2001 and at the initial attendance:
"He complained of pain from his neck and shoulders, and of chronic headaches. Other complaints included episodic vertigo and tinnitus, crepitation from his temporomandibular joints, and post-orbital pain. He also experiences episodic nausea that is said to have a debilitating effect. These symptoms were said by Mr Kukulj to have resulted from injuries he sustained in a collision between his vehicle and a Transperth bus on 22 November 1996". 48 It is to be noted that although the plaintiff was able to relate his condition to the accident, his complaint to Mr Kennedy of crepitation in the temporomandibular joint was his first mention of that problem. Mr Kennedy concluded that the plaintiff had crepitation in his right temporomandibular joint, and fitted a diagnostic occlusal appliance. He reported that following a period of assessment the plaintiff continued to have dysfunction of his masticatory joints and muscles, and stated that his oral problem was significant, manifesting chronic symptoms. Mr Kennedy recommended further diagnostic investigation of the jaw joints, but that does not appear that has taken place. 49 On 8 October 2002 Mr Kennedy reported that the plaintiff's jaw joints were functioning normally, and that he continued to wear the diagnostic occlusal appliance for relief of painful symptoms. 50 The plaintiff was referred to a psychologist, Elyse Frankel, who on 11 December 2001 reported that a Beck depression inventory questionnaire administered on 12 December 2000 indicated a severe level of depression. The plaintiff attended for psychological counselling on 15 occasions between 12 December 2000 and 23 August 2001 and the focus of counselling was on helping him cope with the frustration caused by the limitations imposed upon him by his injuries. 51 On 15 October 2002 Ms Frankel reported that she had a one and a half hour session with the plaintiff on 7 October 2002 when the Beck depression inventory suggested that there was a minimal level of depression. Ms Frankel was of the view that the plaintiff had suffered an adjustment disorder, but that as at the date of the last consultation was not restricted thereby. 52 The plaintiff's solicitor referred him to a psychiatrist, Dr DeFelice, who saw him on 17 and 24 July 2002. Dr DeFelice also found the
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plaintiff to be an unreliable historian. It appears that the plaintiff told Dr DeFelice that he had used marijuana extensively post-accident because it helped him with his depression. The plaintiff told Dr DeFelice that he got into the State rowing team and it was only because of his belief that there was no money in the sport that he did not represent Australia. Dr DeFelice concluded that the plaintiff had suffered some distress as a result of symptoms that he experienced subsequent to the accident, representing an adjustment disorder. He reported: "There were aspects about Mr Kukulj's presentation which was somewhat flamboyant, 'larger than life' perhaps. I considered the possibility of a bipolar disorder, with grandiose ideas, but I don't really consider that this is a relevant diagnosis and anyway, it had no relationship to his MVA. I also considered whether aspects of his presentation might represent a narcissistic personality disorder, but I don't believe Mr Kukulj fulfilled the criteria for this … ." 53 It seems clear that Dr DeFelice did not consider that the plaintiff's psychological difficulties were of consequence.
Findings of fact 54 The plaintiff's evidence was circumlocutory and in large part devoid of content. His personal assessment of his physical and vocational qualities and potential was unsupported by any evidence of achievement, and stood alone. I am in no doubt that he substantially exaggerated the nature and extent of the injuries received in the accident, and their residual consequences. His evidence concerning his vocational activities was flamboyant and unrealistic. In short it lacks credibility. 55 The burden of the medical evidence establishes that in the accident the plaintiff suffered no more than a mild soft tissue injury to the cervical spine with some referred symptoms, from which he should have and probably did make a reasonably swift recovery with little in the way of residual consequences. I am not satisfied on the evidence, particularly having regard to the view I have formed of the plaintiff as a witness, that any psychological consequences he may have had are in any way related to the accident. Further I do not accept that the temporomandibular joint problem is referable to the accident particularly when it is to be noted that the plaintiff did not make a complaint about it until almost five years post-accident, and then only after a friend directed him to Mr Kennedy. The accident has not effected the plaintiff's earning capacity.
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56 When one has no confidence in complaints of symptomatology in the case of soft tissue injuries, it is extremely difficult to make an assessment as to the quality of those injuries. Having regard to the totality of the material and particularly the medical evidence to which I have made reference, it is my finding that the severity of the plaintiff's injuries amount to no more than 5 per cent of a most extreme case. As a consequence the appropriate allowance for the physical aspects is $12,000 and as that sum is less than the threshold amount provided by s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 the plaintiff is not entitled to an award for non-pecuniary loss.
57 Special damages were agreed as to quantum in the sum of $12,180.82, but liability in respect thereof is in issue. The list of special damages and supporting accounts was received as Exhibit P4. On the basis of the evidence of Mr Gilmour I am prepared to allow the physiotherapy expenses incurred up until 27 February 1997, a total of $878.90, and the sum of $150 towards chemist expenses. Having regard to the nature of the plaintiff's injuries I do not consider that it was necessary that he undergo a rehabilitation programme with CRS Australia and do not make any allowance therefor. The other treatment the subject of the remaining items of special damage was not necessitated by accident caused injuries and I do not make any allowance therefor. 58 In the result the plaintiff is entitled to the total sum of $1,028.90 by way of special damages subject to a reduction of 25 per cent for contributory negligence. 59 The plaintiff is entitled to judgment against the defendants in the sum of $772. |