Kwa v DAVIES - [2003] WADC 104

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: KWA -v- DAVIES [2003] WADC 104

CORAM: NISBET DCJ

HEARD: 17-21 FEBRUARY, 6 & 15 MARCH 2003

DELIVERED : 16 MAY 2003

FILE NO/S: CIV 2798 of 2001

BETWEEN: FRANCIS TAK-LAU KWA
Plaintiff
AND
CLIVE WESTCOTT DAVIES
Defendant

Catchwords:

Tort – Negligence – Motor vehicle accident – Personal injuries – Damages – Assessment – Very minor collision – Turns on own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Claim dismissed

Representation:

Counsel:

Plaintiff: Mr G Droppert
Defendant: Mr J G Staude

Solicitors:

Plaintiff: Dwyer Durack
Defendant: O'Sullivan Partners

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

Brown v Rodrigues, unreported; FCt SCt of WA; Library No 970334; 3 July 1997
Cameron v Sullivan [1962] QWN 32
Campbell v Wilson (1970) 1 NSWLR 333
Medlin v State Government Insurance Commission (1995) 182 CLR 1
National Insurance Co of New Zealand v Espagne (1961) 105 CLR 569
Thiess Properties Pty Ltd v Page (1980) 31 ALR 430

Case(s) also cited:

Nil

NISBET DCJ: The plaintiff was born 30 May 1935 and is a self‑employed accommodation manager looking after a small motel and backpackers' hostel owned by him in Scarborough. He claims to have sustained a number of injuries when he was involved in a motor vehicle collision on 31 July 2000. On that day he said he was driving his Volvo station wagon in Howtree Place and came to a stop at its T‑junction intersection with The Boulevard in Floreat. Howtree Place runs roughly north‑south and The Boulevard roughly east‑west at this location. The T‑junction was governed by a stop sign, the Boulevard being a relatively busy road. The plaintiff said he stopped before the line and was then asked what happened then. He testified that:
"Then suddenly I got pushed forward.
I look after. There was a – got hit in the back. It was a Saab.
I came out of the car. One distinct I saw was that half a numberplate came off but when – after I got out of the car.
I felt a bit of pain to start with, when I got out of the car.
[The defendant] He came out his car. [I could see] the front of his car, yes.
It was there because when both the vehicles were stationary but suddenly half the numberplate came off so I thought it was very amusing at that time.
… probably the screw go missing or get broken; I don't know. [It was fixed at one end and the other end]‑‑‑Yes, swing down.
Just like comics in the television; yes.
The tow bar slightly damaged, it's got a bit of bend around, but it's a – I must say that the tow bar I had is a pick of the – the tongue itself is – it's five eight steel as compared with normally three three eight which is – it's 60 millimetres thick, the tow bar itself, the tongue, as against a normal car of 8 millimetre thick, so it's strong. It's an extremely heavy one but it was bent slightly.
[The defendant and I both looked at the vehicles.]
[The defendant] He said, 'Not much damage in your part,' and then – no, no. At that time we stopped and I ask him pull off the road because of oncoming traffic. We did not exchange any (indistinct) has come out, saw the car and then I ask him to pull off the road.
[I asked him to pull off the road] Because the car was stuck over the intersection and that's dangerous.
Most of my car was in the intersection, yes.
[Before I was hit from behind] Probably minus 1 metre because I stop before the white line. [Was in the intersection]."
He went on to say that after being struck from behind by the defendant most of his car was shunted forward straight into the intersection and he then said that each of he and the defendant "drove a little distance when we could park safely, off the road altogether, on the verge." Asked about the conversation after the two vehicles stopped a second time the plaintiff said that the defendant spoke more than he did but said that they were fortunate as they both were driving Swedish cars which are heavily built.
In cross‑examination the plaintiff was asked whether he was laughing when he got out of his car the second time. He responded: "I couldn't – I could have. I don't know. I couldn't remember." When it was put to him that he wasn't concerned that anything serious had happened either to his vehicle or to himself he replied: "I don't know. Don't know." It was then put to him that he put his left hand behind his neck and rolled his head and he said: "I could have but I – I could have." It was then put to the plaintiff that he had seen a signed statement of the defendant in which this was described and the plaintiff agreed that the defendant had made a statement to that effect. (t/s 256) Then it was put specifically to the plaintiff in these terms namely, "I observed him put his left hand behind his neck and roll his head about three times. He was smiling and laughing." He was asked if that was true. The plaintiff said: "I couldn't remember. Couldn't remember, sir." And then he was asked:
"And did you tell Mr Davies that you had a pain in your neck?‑‑‑Yes, I did."
That your neck was stiff?‑‑‑I didn't say it was stiff. I think I said I had a pain in my neck, yes.
And did Mr Davies say to you, 'If you do that you will get a pain in your neck'?‑‑‑He could have said. I don't know. I couldn't remember, sir."
The defendant is a consulting engineer and usually employed in Taiwan but was in Perth at the time of the trial and able to be called as a witness. His evidence was that he was following the plaintiff in Howtree Place preparing to take much the same route as him to his home in City Beach that is to say a left hand turn at the T‑junction of Howtree Place with The Boulevard heading off in a westerly direction to City Beach. He described the stop line at the intersection as not being a continuous straight line. Because Howtree Place curves or bends around to the left the stop line comes out from the bend at right angles to the bend and then angles off to the right so that there is a straight stop line facing traffic who wish either to proceed straight across The Boulevard (eg, to a house there) or make a right-hand turn, whereas vehicles wishing to turn left would follow the natural curve of the roadway and stop at that part of the stop line which is angled at 90 degrees to the curve. The defendant said that he pulled up behind the plaintiff and came to a complete stop. Next, he observed the plaintiff proceed into the intersection and with the intention of stopping at the same stop line as that at which the plaintiff stopped ie, that part of the stop line closest to the curve or bend in Howtree Place leading onto The Boulevard, he let his foot off the brake and depressed the accelerator to move forward. He was looking to his right for oncoming traffic and did not see that the plaintiff stopped suddenly and without any apparent reason and collided into the rear of his vehicle. The defendant estimated that he was travelling at walking speed that is to say no more than about five kilometres an hour at the time of the collision. He then said that the plaintiff drove his vehicle forward a little distance, a half a metre to a metre and stopped again and got out of his vehicle. The defendant said he too got out of his vehicle and they both met between the two vehicles. The defendant did not see any damage to the plaintiff's tow bar and denied that there was any damage done to his front number plate save for a very small indentation which could have been straightened out with a hammer if he could have been bothered. The defendant emphatically denied shunting the plaintiff into the intersection.
Hence it can be seen that the choice is between the minor incident described by the plaintiff and the trifling incident described by the defendant, and of the two versions I much prefer that of the defendant. Firstly, he appeared to me to have all the objectivity of a fully insured driver with no axe to grind who was simply doing his best to recount the collision. Secondly, whilst I accept that he may have not have had a good recollection about peripheral matters such as the colour of the plaintiff's vehicle and whether it was a station wagon or a sedan or the like, his recollection and description of the collision was credible and reliable and had the ring of truth about it, whereas the plaintiff's version I thought contrived, borne out of a cynical attempt to manipulate this trifling event into one of major importance. The plaintiff's testimony that the number plate on the defendant's vehicle swung off and dropped down like a television cartoon I specifically reject. I accept the evidence of the defendant that he has done nothing to repair the number plate on his vehicle and he has left it entirely as is, not even bothering to remove the small dent in it with a hammer, the damage being so inconsequential. Furthermore, I reject the plaintiff's testimony that his tow bar was bent upwards and that he had it repaired by an unnamed backpacker at his backpacker hostel. I regard the evidence of the defendant's front number plate and the plaintiff's bent tow bar as being untruthful embellishments designed to dress up the plaintiff's evidence in an effort to demonstrate that the accident was more serious than it was. Regrettably I must record that I do not believe the plaintiff.

Was the plaintiff injured?

In his statement of claim the plaintiff says that he sustained a soft tissue injury to his cervical spine, a soft tissue injury to his right shoulder, depression, hydrosic eczema, memory loss and sexual dysfunction. All from a trivial rear‑end collision. At the outset it is appropriate to record that not one of the multitude of medical practitioners who examined the plaintiff elicited from him any history of the alleged mechanism by which he sustained his injury. The plaintiff's counsel in closing submissions submitted that it was not put to the plaintiff in cross‑examination or otherwise that he was not jolted in the car accident and that I should accept the propositions that the plaintiff was jolted and suffered contemporaneous symptoms of neck pain or restriction associated with the electric shock sensation described in the medical reports and, secondly, that his physical presentation a short time after the accident both at the accident scene and later that afternoon to Dr Lip are consistent with that proposition. This submission is suggestive of the defendant carrying some burden of proof in the negative. That is to say that it is for the defendant to prove that the plaintiff did not suffer the injury he alleges he suffered. Of course it is for the plaintiff to prove that it is more probable than not that he sustained the injuries he claims. In my opinion in these types of cases it is incumbent upon a plaintiff to explain what he says happened to him in the collision such that caused the alleged injuries. I am of course not suggesting that the plaintiff has to give any scientific explanation. All it involves is him recounting what he says happened to him. This simple task was not undertaken by the plaintiff at all either to himself or to his various medical advisers. The plaintiff's case seems to be that simply because he was involved in a minor rear end collision the court is bound to infer that he sustained an injury in consequence. In my opinion the slighter the degree of collision the stronger the requirement for appropriate evidence. Dr David Watson, an experienced physician, gave evidence that there were three mechanisms at work where a soft tissue extension flexion injury of the cervical spine is demonstrated. The first of these is the force of the collision. The second is whether there was a head restraint and the third being the strength of the back of the seats. These are in descending order of importance. Ordinarily the mechanism of this type of injury involves the head being violently flung forward and back but none of this was explained by the plaintiff and even Dr Watson agreed (t/s 137) that he had just assumed that the plaintiff was flung or that his neck suffered a flexion or extension injury. However each of Dr Watson and Dr Edelman said that injury can occur at very low speeds but in Dr Edelman's case he thought the mechanism of the injury was very poorly understood. Mr Crockett thought that momentum was more important than speed by which I took him to mean the kinetic energy in the motion of the head. All of which suggests to me that in the absence of any evidence from the plaintiff as to what he says happened to him inside his car at the time of collision it is very difficult for me to draw any inferences from the medical evidence that he sustained any injury at all. Again it is to be stressed that there is no radiological or other evidence to support any underlying pathology for the plaintiff having sustained an injury as he alleges.
For the sake of completeness I should that Dr Lip's report of 15 May 2001 reads in part:
"On the 31.7.00 he was involved in a motor vehicle accident. His car was knocked from the rear by another car along Brookdale Road, Floreat Park. The sudden impact jarred his neck."
Again, there is no attempt to say how or why this could have occurred particularly in circumstances where Dr Watson testified that the Volvo that the plaintiff was driving is fitted with a particularly good head restraint.
Counsel for the plaintiff submitted that if I was to accept the defendant's case that the plaintiff did not sustain any injury in the accident this would require me to disregard Dr Lip's evidence that the plaintiff presented with evidence of injury on the very afternoon of the accident; Dr Edelman's evidence who saw the plaintiff about one month after the accident and Dr Yates' evidence who saw the plaintiff about four months after the accident. I disagree. All of the doctors relied on what they were told by the plaintiff. Starting with Dr Lip, as his report of 15 May 2001 previously referred to notes:
"He complained of a painful and stiff neck bilaterally, especially over the right side of his neck. The pain was like an electric shock. The pain also radiated down to his right arm and he felt dizzy.
X‑ray of his cervical spine did not show any abnormality.
He was prescribed Panadeine Forte and Celebrex. …
He was referred to Rheumatologist Dr Jack Edelman, who said that he had sustained a soft tissue injury to his neck and suggested treatment with heat and exercises." (My emphasis.)
Similarly, Dr Edelman wrote in his report of 20 September 2000:
"He tells me that after the accident he had neck pain and he still describes pain to this present day. He describes the pain down both sides of his neck and along the trapezius muscle. He has pain along the right scapula area and it can radiate down his arm. He then told me of troubles with his vision as well."
And, finally, Dr Yates wrote in his report of 11 January 2000:
"He claims to have sustained a neck injury in this accident and this has affected his ability to work."
The plaintiff also relies upon the evidence of the observations of the non‑medical witnesses who knew him both before and after the motor vehicle accident. Mr Howard Cutter is employed by the plaintiff as a shuttle bus driver however he only commenced his employment in September or October 2002 and was not able to offer any observations of any change in the plaintiff.
Mrs Amanda Aitken is the proprietor of a graphic design studio who was on the board of the same school attended by one of the plaintiff's children. She first met him in 1999 and thought the plaintiff an amazing person who knew a lot, did an incredible amount and was very active at the school and in his life. She said that she noticed a change in him which she described in the following way:
"I mean, the best way to say it is he's flustered more, I think. I've noticed that at council meetings, particularly I suppose – he was someone who would not forget something and if you said, you know, 'Do you know somebody in electrical engineering who could do this?' he would be able to pluck it out of his hat. I mean, he had a lot at his fingertips and I think that's changed. He forgets things, he gets a bit flustered sometimes if he can't remember it and has periods where he just doesn't seem quite so happy is the way I'd describe it I suppose."
She did not say when she noticed the change and had never discussed the reason for it with the plaintiff. She accordingly did not attribute it to any particular event or circumstances.
Mrs Madeleine Shaw is a shuttle bus driver for the plaintiff having commenced employment for him in about April 2000. She worked two days a week at first and at the time of trial this had increased to three days a week. She described the plaintiff as having a bright and bubbly personality and a person with whom she had fairly frequent contact but at some stage she thought that he was lying down and she would call out to him but he would tell her to go away. She thought that he had "the flu or something. I didn't know. Nobody told me." Mrs Shaw said that the plaintiff was a lot better now than he was but that she did not really have a lot to do with him (t/s 363). Mrs Shaw only found out that the plaintiff had been involved in a motor vehicle accident a short time before the trial.
Mrs Lay Choo Lim is a real estate agent who had known the plaintiff for 20 years or so. She testified that she used to use the plaintiff to do building inspection reports for her but about the end of the year 2000 she stopped using him because he declined her work. No reason was given.
Mrs Lee Hallam has been employed by the plaintiff as a bookkeeper from time to time commencing in about April 1996. She has also done work as a bus driver. Her hours of work were irregular. As she said:
"… I come and go; maybe half an hour, maybe two hours, whatever, say about three times a week to add up to the hours that I worked. I usually come in and deal with the mail, put notes on it and say, 'Pay attention to this Francis, this has got to be paid by then,' or 'You've got to answer by such and such,' all that."
All up she worked between 8 and 10 or 12 hours a week and her hours of work did not change in the period after she had learned that the plaintiff had been involved in a motor vehicle accident (t/s 578). She did not specify when it was that she first learned that the plaintiff had been in a motor vehicle accident although she did say she thought it had only been "a couple of weeks before" (t/s 425). This evidence was given without precision and Mrs Hallam was a somewhat loquacious witness such that whilst I was satisfied that she was honest and doing her best I did not regard this part of her testimony as being particularly reliable. In any event she noticed a change in the plaintiff whereby she found it difficult to communicate with him in relation to her duties and said:
"He was either in bed or I think he was off seeing the doctor or something. I don't know, but I just couldn't catch up with him anyway. He was in bed an awful lot. As a matter of fact, to me it was a bit embarrassing because he would call me into his bedroom to give me instructions on things to do … " (t/s 425).
Later Mrs Hallam said that the plaintiff "spent half of his time in bed".
Seeing as Mrs Hallam only worked about eight hours a week which occasionally increased to 10 or 12 hours a week, it is difficult to say how she could make this observation with any degree of accuracy.
Interestingly, in Mrs Hallam's opinion the plaintiff is an arrogant man, a view to be contrasted with the observations of some of the other witnesses.
The difficulty with all of the evidence of the lay witnesses detailed above (which I regard as less than persuasive anyway) is that it is somewhat at odds with the evidence of Dr Lip, the medical practitioner who knew the plaintiff the best. He gave a history that prior to the plaintiff's motor vehicle accident on 31 July 2000 the plaintiff had been coming to him for treatment for skin complaints, sleeping problems and colitis. Dr Lip described the plaintiff as a highly tense and emotional person which manifested itself clinically in that the plaintiff "could not even sleep and he's tired and he required some quite frequent injections of B12 to keep him going". Dr Lip had been seeing the plaintiff for sleeping and tiredness problems for many years before the accident. Indeed since at least 1989 (Exhibit D11, p 4). In the 12 months before the accident he saw the plaintiff at least once a month for skin problems, sleeping disorders and "aches and pains" saying that he complained of "Painful foot. Painful – very tired, disturbed sleep, a bit of back problem." He also complained of pins and needles and nausea and, very importantly, Dr Lip identified depression as being a significant feature of the plaintiff's presentation to him before his motor vehicle accident. The plaintiff's presentation to Dr Lip with constant complaints of tiredness cannot be reconciled with the observations of the lay witnesses as to his pre‑accident physical condition, and I prefer the evidence of Dr Lip.

In my opinion the plaintiff's presentation to others at about the time of his motor vehicle accident and following can be ascribed to factors other than him having sustained any injury in the motor vehicle accident. Apart from his well documented and long‑standing other physical problems which included gross tiredness and depression, he was and probably still is experiencing financial difficulties with his business and had been engaged in some long‑standing litigation with the City of Stirling and others. His borrowings had increased to $1.4 million and his principal secured creditor, the Public Trustee, had declined to renew his loan. He was obliged to find a new lender and at the same time he was attempting to market the business to a purchaser or equity partner and/or joint venturer but without success.
On all of the evidence I am not satisfied that the plaintiff has persuaded me on the balance of probabilities that he sustained any injury in the motor vehicle accident of 31 July 2000.
As tort liability for negligence depends upon proof of damage, and none has been proven to the requisite standard of proof, the plaintiff's claim must fail.

Provisional assessment of damages

Whilst undertaking a provisional assessment of damages seems somewhat futile in the circumstances of this case because if I am wrong on the issue of liability, my finding involving as it does a rejection of the plaintiff as a reliable witness, the inevitable result must be a retrial. Nevertheless the law requires me to make a provisional assessment which I shall now undertake. The plaintiff's claim for damages was based entirely on a claim that his injuries had rendered him so unable to attend to his business at Mandarin Gardens that profits fell causing a loss of income to him of $84,000 after tax and a capital loss of goodwill in the business of some $138,000.
In my opinion this claim is an elaborate construct based upon a highly selective approach to the accounts of the business both before and after the accident and upon a completely mistaken view of the history of the development of the motel and backpacker business.
The plaintiff is almost 68 years old. He has a number of qualifications but in the relevant history of some 10 years or so before the motor vehicle accident of 31 July 2000 the plaintiff was engaged in building up his business of Mandarin Gardens as a motel and backpacker accommodation establishment at the same time working as a consultant building inspector and the like. In his opening submissions counsel for the plaintiff said that in early 2000 the resort accommodation was increased by five new units. Exhibit P21 is a compendium of reports from a firm of chartered accountants, Anderson Redman. In his letter to the plaintiff's solicitors dated 26 June 2002 Mr Redman wrote:
"We note that your instructions were to calculate the likely losses from Mr Kwa to present and then to also estimate future losses over the next five to ten year period.
In completing the spreadsheet analysis, the following broad assumptions were made:
1.The 2000 financial year is the best estimate of future 'year in year out' earnings of the business. We have based this on your advice that improvements were made to the accommodation such that profitability levels achieved in that year could be maintained in future years.
…
We would note that the most important assumption in our analysis is that the year ended 30 June 2000 is a fair representation of expected future profits prior to Mr Kwa's accident. It is this base assumption which has the greatest effect on calculated likely losses to present and future losses over the next five to ten years." (Original emphasis.)
Hence, as can be seen the plaintiff's claim for these significant damages all depends upon the accuracy of the figures to 30 June 2000 firstly, and secondly whether they in truth represent a fair picture of the income earning potential of the business. The reason why the plaintiff has chosen the year 2000 upon which to base all of his calculations can be readily understood when one sees the spreadsheet prepared by Mr Redman in Exhibit P21 which shows that the total income for the years 1996 to 2001 inclusive were in the amounts of $230,288, $277,211, $243,068, $262,996, $341,271 and $201,980 respectively.
The difficulty with these calculations is that they are based upon a false premise. The accommodation was not increased by five new units in the year 2000 contrary to the evidence of the plaintiff which was as follows:
"Mr Kwa I think you gave evidence earlier that currently there are 16 motel rooms available for accommodation?‑‑‑That's right.
Up to 1999, how many motel rooms were there?‑‑‑There were ‑ I couldn't exactly remember.
How many of them were available for rental?‑‑‑Less. Well, the renovation – I couldn't remember exactly what it is but the renovation allowed me to increase from five to 10 units.
So there were five units that were converted to ‑ ‑ ‑?‑‑‑To 10.
To 10?‑‑‑Yes.
And within the 16 rooms that are now available for rental, does that include the 10 that were converted?‑‑‑Yes.
From five?‑‑‑That's right, yes.
So when did that conversion take place?‑‑‑It took place before 2000 anyway but it took a couple of years to do it.
So over a period of a couple of years into the late 1990's you converted you converted (sic) five units into 10?‑‑‑That's right.
What was the state of the five units before you converted them?‑‑‑There was five units that were quite dilapidated and I couldn't let them out.
And after you converted them into 10, did that also involve re‑fitting them?‑‑‑They became modern (indistinct) was in very strong demand.
What effect did the increase in the number of units, and in particular that 10 of them are nice and modern, have on the income that was generated from the motel units versus the income generated from the backpackers' accommodation?‑‑‑It was a big increase.
Big increase in what?‑‑‑In the income.
From?‑‑‑From the accommodation.
Yes. Which part of the accommodation?‑‑‑From the renovated part of the accommodation.
Okay. Thank you. All right. Before you had done the renovation and the conversion from five units to 10 what was the approximate proportion of motel style accommodation income versus backpacker style accommodation?‑‑‑Around the motels about 40; 40, 60 round figure.
So before the conversions there was slightly higher rental from – a slightly higher proportion of rental income came from backpackers?‑‑‑Yes, that's right.
After the conversion what was the proportion then?‑‑‑It was at reverse. (sic)
Reverse?‑‑‑Yes. All right. What was the first financial year that showed the benefits of converting these units into modern units and increasing the numbers?‑‑‑There was a big increase.
What was the first financial year where that really showed up?‑‑‑2000.
So that is the financial year ended 30 June 2000?‑‑‑Yes, that's right."
There is no doubt but that the plaintiff's claim for damages in the way it was being promoted at trial was dependent upon the accuracy of this information. There is no equivocation here and this evidence is to be compared with the cross‑examination in relation to funding the cost of these improvements at t/s 265 and following. The plaintiff claimed to have borrowed $100,000 for the improvements from Elderslie Finance and yet the building costs were not disclosed as an item of expenditure in the profit and loss account.
The whole of the plaintiff's evidence in relation to the improvements, when they were conducted, their cost and the impact it had on his business is all revealed to be demonstrably unreliable by the evidence of the plaintiff's witness Mr David Anthony Ross, a valuer in Perth since 1972, who has known the plaintiff since 1992 when he has undertaken valuations of the Mandarin Gardens property at various times over the past few years on five or six different occasions. In evidence‑in‑chief he identified his valuation report of 28 August 2002 (t/s 496) and in that exhibit at p 11 Mr Ross observed that "renovations have recently occurred" in respect of which Mr Ross said that that was an excerpt from a previous valuation "back in 1999, earlier, when he did the renovations." This was a reference to a valuation performed in September 1999 by which time Mr Ross said there were 10 units on the first level of the property which he knew because he inspected them. However in cross‑examination from t/s 505 and following it became apparent that when Mr Ross was referred to the earlier valuations he had done these demonstrated alterations to the premises much earlier such that in the end he concluded (at t/s 514) that the number of accommodation units had not changed since 1995 – 96.
In my opinion this is a complete end to the claim based upon the diminution in value of the business of Mandarin Gardens and any claim in respect of loss of profits calculated by reference to the year 2000 as being the base year in which these additional accommodation units first were brought to account. The plaintiff's counsel accepted that the characterisation of the renovations or conversions as being "recent" as "clearly a broad and somewhat inaccurate description" (closing submissions par 6). This concession was well made.
In this provisional assessment therefore I am left simply to consider whether in the event that I am wrong on the issue of liability the plaintiff has demonstrated that he has sustained any other compensable loss calculable by a reference to a diminution in his work capacity in accordance with authorities such as Medlin v State Government Insurance Commission (1995) 182 CLR 1, bearing in mind the plaintiff's age and occupation. Another approach would be to try and put some value on the cost of replacement of any labour that the plaintiff was not able to perform in the management of his business.
In my opinion if the plaintiff sustained any injury, contrary to my earlier findings, then it must be seen in the context that it was a most minor injury unsupported by any objective pathological evidence and against which must be seen the background of long‑standing medical problems. But the plaintiff's alleged loss of capacity can be best summed up by looking at the evidence of Mr Crockett the orthopaedic surgeon who was asked the following question:
"Mr Kwa has told us that he used to ride daily 20 kilometres in the morning; he would swim 20 lengths of a 25 metre pool; he would go to a health club at a nearby hotel; he was as fit as a fiddle?‑‑‑Yes.
Did that accord with his presentation to you?‑‑‑Yes, I think he could still do all those things."
Then there were the other medical practitioners who all testified that soft tissue injuries of the type allegedly sustained by the plaintiff all heal within time. See for example the evidence of Drs Edelman and Watson.
As I have no evidence of the income earned by hotel/motel managers, handymen, tradesmen and the like, a combination of which describes the various facets of the plaintiff's work in his business, such that I could calculate the cost of the hire of replacement labour I am left in this provisional assessment with assessing an award on a global basis in the sense in which that expression is used in cases such as the National Insurance Co of New Zealand v Espagne (1961) 105 CLR 569; Thiess Properties Pty Ltd v Page (1980) 31 ALR 430; Brown v Rodrigues, unreported; FCt SCt of WA; Library No 970334; 3 July 1997; Cameron v Sullivan [1962] QWN 32 and Campbell v Wilson (1970) 1 NSWLR 333 and, doing the best I can on the evidence I would have thought an allowance for pain, suffering and loss of amenities would have put the plaintiff at 2½ per cent of a most extreme case. 2½ per cent of $232,000, the amount referred in s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 the resultant sum of which is $5,800, is well below the amount referred to in the same section, presently $11,500 and hence there can be no award at law for pain, suffering and loss of amenities. For past and future economic loss I would have thought that the plaintiff would have been adequately compensated by an award of $10,000. There are no other heads of damage which I might consider but for the same of completeness will say that the provisional assessment does not include any amount for future medical expenses because the medical evidence discloses that the plaintiff has fully recovered from any injury he may be found to have sustained as a result of a motor vehicle accident. There was no evidence of past medical expenses outstanding and no evidence of any need for travel expenses as set forward in the plaintiff's schedule of damages.
The plaintiff's claim will be dismissed.