Markey v Scarboro Surf Life Saving Club Inc
[2007] WADC 194
•7 NOVEMBER 2007
MARKEY -v- SCARBORO SURF LIFE SAVING CLUB INC & ANOR [2007] WADC 194
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 194 | |
| Case No: | CIV:2751/2004 | 6-8 MARCH 2007 | |
| Coram: | YEATS DCJ | 6/11/07 | |
| PERTH | |||
| 45 | Judgment Part: | 1 of 1 | |
| Result: | Negligence not established Provisional assessment of damages | ||
| PDF Version |
| Parties: | DAVID MAXWELL MARKEY SCARBORO SURF LIFE SAVING CLUB INC CITY OF STIRLING |
Catchwords: | Negligence Personal injury Liability Duty of care Contributory negligence Provisional assessment of damages |
Legislation: | Civil Liability Act 2002 s 5B, s 5K, s 5Z Local Government Act 1995 s 1.4, s 3.53, s 9.57 Occupiers Liability Act 1985 Rules of the Supreme Court 1971 O 20 r 8, O 20 r 9 |
Case References: | Brodie v Singleton Shire Council (2001) 206 CLR 512 Commissioner of Railways v Ruprecht (1979) 142 CLR 563 Hagger v City of Fremantle [2003] WADC 206 Hunter Holdings Pty Ltd v Shire of Corrigin [2005] WADC 211 Jeans West Corp Pty Ltd v Archer [2004] WASCA 132 Port Stephens Council v Theodorakakis [2006] NSWCA 70 Roads & Traffic Authority of NSW v Dederer [2007] HCA 42 Tame v State of New South Wales (2002) 211 CLR 317 Town of Mosman Park v Tate [2005] WASCA 124 Vairy v Wyong Shire Council (2005) 223 CLR 422 Wyong Shire Council v Shirt (1980) 146 CLR 40 Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
SCARBORO SURF LIFE SAVING CLUB INC
First Defendant
CITY OF STIRLING
Second Defendant
Catchwords:
Negligence - Personal injury - Liability - Duty of care - Contributory negligence - Provisional assessment of damages
Legislation:
Civil Liability Act 2002 s 5B, s 5K, s 5Z
Local Government Act 1995 s 1.4, s 3.53, s 9.57
Occupiers Liability Act 1985
Rules of the Supreme Court 1971 O 20 r 8, O 20 r 9
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Result:
Negligence not established
Provisional assessment of damages
Representation:
Counsel:
Plaintiff : Mr T H Offer
First Defendant : Mr J Eller
Second Defendant : Mr J Eller
Solicitors:
Plaintiff : Trewin Norman & Co
First Defendant : Kott Gunning
Second Defendant : John Eller
Case(s) referred to in judgment(s):
Brodie v Singleton Shire Council (2001) 206 CLR 512
Commissioner of Railways v Ruprecht (1979) 142 CLR 563
Hagger v City of Fremantle [2003] WADC 206
Hunter Holdings Pty Ltd v Shire of Corrigin [2005] WADC 211
Jeans West Corp Pty Ltd v Archer [2004] WASCA 132
Port Stephens Council v Theodorakakis [2006] NSWCA 70
Roads & Traffic Authority of NSW v Dederer [2007] HCA 42
Tame v State of New South Wales (2002) 211 CLR 317
Town of Mosman Park v Tate [2005] WASCA 124
Vairy v Wyong Shire Council (2005) 223 CLR 422
Wyong Shire Council v Shirt (1980) 146 CLR 40
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1 YEATS DCJ: The plaintiff seeks damages for injuries he claims he suffered when he came off his bike on a dual use pedestrian/bike path adjacent to the premises of the Scarboro Surf Life Saving Club on 24 February 2004. The plaintiff claims he came off his bike because he went through a pothole in the path obscured by water flowing down from the Scarboro Surf Life Saving Club premises.
2 At trial the principle issues were related to liability and revolved around the credibility of the plaintiff. The case is a lesson in failures by both the plaintiff and the defendants to properly plead their cases and that failure in the pleadings has made the job of the trial Judge unusually difficult. The plaintiff failed to plead the duty of care owed to it by either the first or second defendant despite the fact that it is fundamental to a claim for damages for negligence that the plaintiff establish not only the existence of a duty of care but also the nature and extent of that duty (Roads & Traffic Authority of NSW v Dederer [2007] HCA 42 per Gummow J at [44]). The plaintiff pleaded his case as if the defendants were under a duty to prevent potentially harmful conduct when in fact the duty of care merely imposes an obligation to exercise reasonable care on the part of the defendants (Dederer's case at [18]). The plaintiff failed to establish at any time by evidence what a reasonable person in the position of either the first or second defendants should have done by way of response to the risk allegedly created by the pothole and the water (Wyong Shire Councilv Shirt (1980) 146 CLR 40 at [47]-[48]). Even the plaintiff's pleading of the accident and the circumstances of what happened omitted important facts on which the defendants would have been entitled to interrogate the plaintiff. These included the water covering the path (not the water covering the hole as pleaded), the plaintiff facing a barrier created by chicanes (not mentioned in the pleading) and the plaintiff turning sharply to the left to go up the driveway to the Surf Life Saving Club (not mentioned in the pleadings). The failure to plead facts on which the case depends leaves the defendants unable to interrogate and to explore those issues and creates unfairness at trial.
3 The defendants did little better in their pleadings. Neither defendant pleaded any pre-existing condition related to the plaintiff's injuries and yet the medical evidence clearly establish that he had suffered a severe neck injury some few years prior to the bicycle accident. I was unable to take that into account directly but, fortuitously for the defendants, the plaintiff concealed that information from medical advisors and therefore rendered their medical advice unreliable so that I was unable to be satisfied that any neck injury was caused by the bicycle accident. Neither defendant pleaded a failure to mitigate. Finally, the second defendant failed to plead
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- s 5Z of the Civil Liability Act 2002, a provision that clearly provided it with immunity. As the plaintiff objected to the second defendant's effort to amend the pleading at the start of the trial I was not able to take that section into account in assessing the liability of the second defendant.
4 The careful case management undertaken in the District Court prior to personal injuries cases coming before a Judge at trial depend on the parties properly pleading their cases. The procedures become useless when we come to trial and issues have not properly been joined or interrogated. In this trial there was unfairness on both sides in the failure to properly plead their respective cases.
Background
5 The plaintiff is a 43 year old man qualified as an electrician. He was born in Perth and attended Trinity College, completing Year 10 and several months into Year 11 before he transferred to a pre-apprenticeship course at Balga TAFE as an electrician. He did his pre-apprenticeship in electrical installing and worked in the area of electrical installation from about 1984. The plaintiff explained the very physical requirements of the work of an electrical installer involving carrying around ladders, scaffolds, climbing into awkward places, digging trenches, using jackhammers, angle grinders, pliers, screwdrivers and working in all sorts of confined places and at dangerous heights, such as on top of a crane or on a roof or down in a well.
6 After about 10 years the plaintiff took a break from electrical work and went to the Whitsundays' with his partner where they operated a gymnasium, squash courts and a roller skating rink. He was involved mainly in the maintenance and cleaning of the very busy complex where some 300 persons a day passed through the premises. That business was sold in 1995 after four to five years. He then turned to electrical maintenance and installation at several resort islands in the Whitsundays' and at one point had a job in a mine in Kakadu for about eight months with Ranger Uranium. In 1998 his brother alerted him to a business for sale in Perth, Mt Lawley Electrical Service and he purchased the business and returned to Perth to run it. The plaintiff then continued working as an electrician conducting his business as the sole electrician from 1998 to 2004. He admitted that during that time in 2002, he had injured his knee and had had arthroscopic surgery which prevented him working for some six weeks. He claimed he was having no problems with his knee by 2004, and he claimed he was very busy in his work. He denied any previous injury to his neck or shoulders, although he thought maybe because of a
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- sporting injury he had a stiff neck a couple of times previously. In his evidence-in-chief the plaintiff claimed that his knee injury was well behind him by 24 February 2004 when he suffered injuries as a result of his bike accident.
The Accident
7 In order to understand the accident, it is important to visualise the scene. The dual use bike and walking path (the path) passes between the Scarboro Surf Life Saving Club premises at the top of the sand dunes and the beach. At the scene of the accident, a paved driveway comes down from the Surf Life Saving Club premises and crosses the path. This driveway is used by the Surf Life Saving Club to move their boats and other life saving equipment up and down to the beach.
8 The plaintiff was travelling in a southerly direction with the beach to his right, approaching the intersection. The driveway ran up on his left. On the opposite side of the paved driveway (the southern side) a double chicane composed of bars fixed in a perpendicular pattern across the path had been put in position to slow down and stop bicycle traffic. The map of the leased site, Exhibit 23, clearly depicts the driveway and the intersection with the path. At the time the lease plan was drawn however, the path was a "future dual use path" and had not yet been built. The path is 3 metres wide and is divided by a painted centre line so that traffic, whether bicycles or pedestrians, keep to the left.
9 On 24 February 2004 the plaintiff was riding south from Trigg to Scarborough Beach intending to then turn around and ride back to Trigg and do a kilometre swim. He was riding a 12 geared mountain bike and wearing a helmet. He gave evidence he was pushing hard into the sea breeze and moving along at a fair pace. He was travelling in the middle of the left-hand lane and intended to continue riding the bike for another 500 metres or so past the driveway.
10 The plaintiff gave evidence that as he came around a bend he noticed the chicane up front, and it looked like one barrier across the path. He then noticed water which he described as "pooled all over the bike path" (T46). As I understand his evidence, the pooling of the water was on the northern edge of the driveway and the chicane was on the southern side.
11 The plaintiff gave evidence that he thought the water was an inch deep all across the path, maybe a half inch, but water all over the path, and he had to decide whether he would put the brakes on or go up the driveway through the Surf Club, and he decided to do the latter. He gave
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- evidence that in order to do that because the driveway was at a slight angle, he stood up on the bike and started to pedal as if he was going to go up a hill. As he turned, he gave evidence he remembered two thuds with the wheels, the bike then being out of control, going over and slamming his head onto the concrete, and from there, sliding across on his side until he crashed into a brick wall with the top of his head, bringing him to a stop.
12 The plaintiff gave evidence relying on the photograph Exhibit 1 to show the location of the pothole on the left edge of the path where it connects with the paved driveway. The plaintiff said that his bike continued on after hitting the pothole for some distance; he estimated the distance as the length of the courtroom in which we were sitting. He said he went head first into the concrete, that the side of his helmet hit the concrete and then he slid into the wall. He said the whole area was soaked - there was water everywhere. So far as the water was concerned, the plaintiff said:
"There was a lot more water. There was water pooled back on the bike path. You can see where the grass has greened up there from fresh water that pools and sits there, so that whole area - this whole area … was a big pool of water." (T 50).
13 The plaintiff claimed that the water was just pooled on the path itself and the pothole he claims he rode through but did not extend onto the sandy edges (T96).
14 Under cross-examination, the plaintiff admitted that he was going quite fast as he came around the bend into the wind to get his heart rate up. He admitted that at the speed he was going he would have been able to stop in dry conditions within 10 metres and in wet conditions within 20 metres.
15 In considering the size of the alleged "pool" of water, the plaintiff looked at photograph 1 of Exhibit 12 and said the pool extended back to approximately where the date (2 September 2005) appears on the face of the photograph. He admitted there was no kerb on either side of the path and that there was a sandy edge. He maintained however that the whole area was flooded to a depth estimated at about 1 centimetre. He said the water was some 5 centimetres deep where the path met the concrete driveway. The plaintiff relied on photograph 20 in Exhibit 12 to show the curve of the bend in the footpath as it came around to the site of the pothole.
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16 The plaintiff claimed that he only saw the water when he was a metre and a half from it, but under cross-examination, admitted it might have been 3 metres. He also admitted under cross-examination that he had no problems with water and had ridden through it all his life. His concern was the barrier up ahead formed by the chicane. That is why he decided to ride up the driveway. He admitted he was some 30 metres from the chicane when he saw it, and admitted at T 92 that he could have stopped in 20 metres and "in hindsight maybe he should have but he can't go back and change things". Under cross-examination he denied he ever used the word "hindsight" (T 127). He maintained that if he had not taken evasive action, he would have hit the chicane (T 131). However, in re-examination he admitted saying that "in hindsight maybe he should have stopped but he can't go back and change things". The plaintiff initially claimed he had a clear run as he approached the chicane, but under cross-examination he changed his evidence and said "There was other riders coming through" (T 141). This was never explained.
17 Under cross-examination (T94) the plaintiff said that he did try to brake but the wheels would not grip, and therefore he turned to go up the driveway. He admitted he "stood on the pedals and went to pedal up the hill" (T94). The plaintiff claimed he rode "straight over" the pothole (T95). He denied he cut the corner.
The Pothole
18 A number of photographs were tendered by the plaintiff to show the pothole. From those photographs it is clear that it is not a pothole in the footpath as such, but a triangular area to the far left of the footpath where it joins the cement driveway where a piece of bitumen has broken away and disappeared (Exhibits 1 and 2). Counsel for the plaintiff described it as a depression between two paved surfaces. The area is part of the sand dune adjacent to the beach and the soil appears to be pure sand. The "pothole" appears to be filled with sand in Exhibits 1 and 2 as one would expect in such a terrain.
19 The plaintiff's evidence was that he took photos 1 and 2 within a week of the accident, but he returned some time later with a straight edge and took the six photos comprising Exhibit 4. On this second occasion the plaintiff claimed water was again covering the pothole when he arrived and he scooped the water out in order to measure the depth of the pool. He denied scooping any sand out of the pothole (T 105-107). He did not have a plausible explanation for not photographing the water covering the pothole as he claimed was the situation when he arrived.
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20 As part of its case the plaintiff provided no measurements of the pothole and, through counsel, would not estimate the size of the pothole. His case relies entirely on the straight edge positioned in and around the pothole as depicted in Exhibit 4.
21 There are two things that concern me about Exhibit 4:-
(1) The footpath edge is above the pothole and it is difficult to see how any water could have pooled across the footpath for any distance so as to obscure the pothole. It appears that any water would not pool in this area but simply run off.
(2) It is apparent that sand would naturally accumulate in the pothole and it is surprising the pothole appears to have the depth as is shown in these photographs.
22 Because of these two matters I am unwilling to guess or speculate about the dimensions of the pothole. I am satisfied that the pothole is small compared to the width of the footpath and it is difficult to imagine how the plaintiff managed to hit the pothole if he rode in the centre of the left-hand side of the path and not on the far left as he claimed at T 130. He also denied cutting the corner (T 142). All of these assertions on his part make it surprising that he ever went through the "pothole" as depicted in the photos.
The aftermath of the accident
23 The plaintiff described the accident – the bike being out of control, going over head first so that his head slammed into the concrete driveway and then sliding across the driveway until his helmeted head hit the brick wall and he felt a big jarring sensation down his spine. The plaintiff was unsure whether he lost consciousness, but he said he was stunned or knocked out – one or the other (T 97). He said his right shoulder was sore and his right knee was sore as well as his lower back. The plaintiff said he got up and pushed the bike up the driveway, past the Surf Club where he sat down on the grass for some 5 minutes. Whilst sitting there, he said he saw people washing down a row boat marked SLSC with a hose twice the width of a standard garden hose. The plaintiff described the boat as the kind typically used by a surf lifesaver. According to the plaintiff the water from this hosing down was running down the driveway and pooling across the bike path. After about 5 minutes the plaintiff said he "gingerly" rode his bike home, pushing it up hills.
24 For the next week the plaintiff said he had a strange sensation through his whole spine area as well as tightness and pain in his neck and
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- a tingling sensation in his fingers and down his legs so he contacted his general practitioner, Dr Kiely Kim. The plaintiff said he was prescribed medication which numbed his pain, but he had a lot of electrical work on his books and kept working. Eventually he was getting very frustrated with experiencing constant pain in his neck, shoulder and spine area so that after 3 months he stopped work all together, both because of the pain and what he described as the dangerous situations he was putting himself in while trying to work. The plaintiff has not worked since that time. He says he wants to work but he has not applied for any jobs or noticed any jobs that he thought he can do. He believes he is unable to return to his work as an electrical installer.
25 The plaintiff said he was experiencing symptoms while he gave his evidence, including pins and needles all through his shoulders and neck area and a constant ringing in his ears. However, he said his symptoms varied and he could aggravate his injury by turning his head fast or standing up fast or carrying weights or walking long distances. The plaintiff said his lower back and his knee eventually recovered but his problem is his neck. He is unable to lift heavy weights (20 kilograms) and unable to carry lighter items such as groceries over any distance. So far as activities are concerned, the plaintiff says he still manages to swim and do yoga, meditation and stretching exercises as recommended, but he no longer surfs. His bike riding is now limited to short trips to the shops.
26 The plaintiff occupies himself restoring a classic wooden yacht built in 1939 which he has worked on for some six years. The restoration involves sanding timbers, gluing and laminating, but the plaintiff claimed this is not physical work. Under cross-examination, however, he admitted some of the sanding was hand sanding (T 115). He said he rests every half hour or so and is able to do a small amount of work at a time. He said he is unable to do any overhead work on the yacht or otherwise.
27 The plaintiff says he does do voluntary work around the boat yard where he lives, but has no real social life any more. He said he cannot stand at social gatherings because of neck pain. And his mood is low – he has lost interest in things – including girls. Although the plaintiff has three brothers, he does not see them other than at Christmas; that lack of interest he described as both physical and emotional. The plaintiff was very sad about no longer seeing his son who lives in Queensland. He is unable to see him because he can no longer afford to fly over there and he has lost contact with the boy.
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28 As a result of his injury the plaintiff said he had experienced limitations driving, sitting reading the newspaper for any period of time, leaning over to make the bed and leaning over to do the washing up – all because of neck pain. He does not expect to ever be able to return to work as an electrical installer. He is living on the disability pension.
29 The plaintiff currently sees Dr David Morrison, his general practitioner, every six or eight weeks to get a script for medications but has no other treatment. He takes about 12 Tramadol tablets a week for pain relief and an antidepressant tablet daily. He also self-medicates with red wine and vodka every evening in order to sleep.
30 The plaintiff admitted under cross-examination that facet joint injections had been recommended by doctors. He said he did not discuss this treatment with his doctors, but a friend of his sister who worked at MRI provided information that the procedure was an uncomfortable one and was only temporary. The plaintiff was emphatic that he did not want people sticking needles into his spine. (T 139).
Other Evidence
31 The first defendant called Mark Raymond Irwin, the president of the Scarboro Surf Life Saving Club. Mr Irwin gave evidence that there were 700 members of the club and that its primary function was to save lives on the beach. To that purpose volunteer members of the club served as surf lifesavers on patrol on weekends and public holidays between October and March from around 9 am to 5 pm. He distinguished between a lifesaver and the paid employees of the City of Stirling who were lifeguards or beach inspectors. The lifeguards and beach inspectors perform the same function as the lifesavers, but they do it Monday to Friday. Mr Irwin also made it clear that there was a very good and close relationship between the City of Stirling and the Scarboro Surf Life Saving Club so that they shared a lot of equipment, all of which was stored in the building – their equipment stored right next to the boat shed in part of the same building where the club stored its equipment.
32 Mr Irwin also spoke of the wash down area which is on the club premises in the carpark area where club members, members of the public, the surf lifesavers, the lifeguards, the beach inspectors all use this area to wash down equipment after use. There are soak wells just off towards the centre of the wash down area. Most club members use the facilities for training, either early in the morning or at around 5.30 or 6.00 in the evening. Some may take equipment to the river to train and then come back later and wash their equipment down in the wash down area.
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33 Mr Irwin also mentioned the problem they experience at the club with cyclists on the cycle path who cut through the carpark, either from top to bottom or bottom to top, down through the club members carpark, around the corner of the building, behind all the cars and down the cycle path and then down the boat ramp onto the cycle path. Others come in the opposite direction and come up the boat ramp from the cycle path. Mr Irwin said it is private property when they come through and that it is dangerous because of the nature of the area with a number of vehicles and trailers moving around.
34 Mr Irwin looked at bundles of photographs Exhibit 6 and Exhibit 6A. He said the large boat on a trailer with the word "Lifeguard" written on it was the property of the City of Stirling. In the photograph he said it was easy to see and identify a lifeguard written on the yellow T-shirt and the yellow shirt of the beach inspector. According to Mr Irwin, the easiest way to distinguish a lifeguard or lifesaver is the red and yellow hat worn by the lifesaver and not worn by lifeguards.
35 Mr Irwin also looked at a photograph that showed the area of the pothole. He said he was not aware of it and as a volunteer organisation they certainly did not check out the dual cycle path; their only duty was to patrol the beach. So far as the "row boat" mentioned by the plaintiff in his evidence, Mr Irwin said that the Surf Club does not have row boats but they do have surf boats which are boats with oars. The surf boats are the property of the Surf Life Saving Club and they are used by club members.
36 Under cross-examination it was put to Mr Irwin that he would concede that water going down the access way (sic driveway) would pose a danger to those using the cycle path, but he would not concede that. Mr Irwin said that six months of the year when it rained water flowed down the driveway onto the cycle path. He never considered that to be a danger and the amount of water flowing down from the Surf Club he considered to be fairly minimal. Most goes down the drains or ends up on the sand.
37 The second defendant called Mr Ronald Seymour Spragg, the manager of engineering operations at the City of Stirling. He explained that his role encompassed three areas including construction of engineering capital works including roads, footpaths and drainage, maintenance of those areas and also compliance issues associated with road reserve issues. Mr Spragg had been involved in the construction of the dual pathway as it passed the Scarborough Beach Surf Club when he was a construction engineer in the late 80s. Mr Spragg was asked to
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- conduct investigations as to any repairs done to the pothole and looked at a number of exhibits including Exhibit 25, a letter of 10 February 2006 from the City of Stirling to the plaintiff which said:
"In reference to a repair that was undertaken at the site during mid 2004, it is understood that the Beach Services Unit made a verbal request direct to the Engineering Operations Department which was actioned at the time of request. However, a search on the Engineering Operations' maintenance records reveals a gap in the date range for this period, and therefore a written record may not have been created to record this specific repair. The Engineering Operations Department advises that due to the nature and urgency of the repair work to be undertaken, not all repairs are documented in written format."
39 Mr Spragg also gave evidence of the maintenance schedule for the cycleway. Servicing of the site is undertaken by various departments, including sweeping of sand and debris from time to time. External contractors use mechanised equipment to sweep the path. Mr Spragg said that the Engineering Operations Department conducts a city-wide maintenance inspection program which in 2004 involved one inspector and involved the inspection of all roads and dual use cycle paths once a year. Now, since about 2005, they are being inspected twice a year. Under cross-examination Mr Spragg mentioned that council employees are also encouraged to report whether maintenance is needed. But the people who sweep the dual use path are not council employees and would not be under that obligation. Under cross-examination Mr Spragg confirmed that there was no written record of the repair done to the dual use path at the site of the plaintiff's accident. He explained that emergency repairs were not always recorded. An engineer insurance report, Exhibit 28, showed that on 18 January 2005 the site was inspected and there was evidence that there had been a repair, but the report did not record when that had been done.
The medical evidence
40 Dr Kiely Kim was the general practitioner who first treated the plaintiff at the time of the accident. The plaintiff saw Dr Kim on 26 February, two days after the bicycle accident. Dr Kim said that on initial presentation the plaintiff had right shoulder, right neck and right knee pain but a normal range of neck movements and, although tender at
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- T1, a normal range of right shoulder movement but was tender in the subacromial area. At the time the plaintiff saw Dr Kim he had quite a history of previous injuries. A month earlier on 20 January he had seen Dr Kim for a fall that had occurred several months before when he developed right shoulder pain and was referred to a physiotherapist. He had also had previous knee problems and knee surgery in 2002. Therefore, given his right knee injury in the bicycle accident, Dr Kim referred him back to his orthopaedic surgeon, Dr Greg Janes, who saw him on 16 March 2004 but by that time the knee pain had improved. Dr Kim prescribed anti-inflammatories and suggested that the plaintiff see a physiotherapist.
41 According to Dr Kim, when the plaintiff returned to see him on 19 May 2004 he was having difficulty lifting his arms above shoulder height and was complaining of neck pain and difficulty in abducting the right shoulder. She referred him for right shoulder x-ray which was normal and then right shoulder ultrasound which revealed thickening of the subacromial bursa and suggested supraspinatus tendonitis. Again, a physiotherapist was suggested to the plaintiff. The plaintiff saw Dr Kim again on 2 June 2004 and by that time was complaining of neck pain whilst bending over and occasional paraesthesiaes of the right hand. His cervical spine x-ray was normal and in June he was referred for a CT scan of the cervical spine, but again there was no evidence of a disc protrusion. By July, when the plaintiff saw Dr Kim, his shoulder pains had improved but his neck and upper back pain remained the same, so she referred him for further x-rays. She expected his condition to improve.
42 By November 2004 Dr Kim reported that the plaintiff's symptoms remained the same, but he had daily upper back and neck pains which were aggravated by movement and had not been able to perform any of his usual duties. She then referred him to Dr Ken Maguire for pain management and an MRI. In 2005 Dr Kim reported that his symptoms of neck pain remained the same. He had ongoing pain and stiffness of the neck and occasional headaches and she formed the view that he could engage in other types of work, but not in any activity involving heavy lifting.
43 Under cross-examination Dr Kim admitted that on his initial visit he made no complaint of any head pain or any pins and needles in his hands or legs. He complained of neck pain, but not headache and not tinnitus. Importantly, on the first occasion when Dr Kim saw him on 26 February 2004 she inquired about whether he had hit his head in the course of the accident and he told her "No, I did not hit my head".
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44 It emerged in cross-examination of Dr Kim that the plaintiff complained of severe headache and pain in his neck following an assault in Queensland in November 2001 by his ex-partner's boyfriend. On that occasion he was sitting in a motor vehicle when he was repeatedly punched to the head. Afterwards he returned to Perth where he visited his GP and complained of severe headache and pain in his neck.
45 Dr Kim also confirmed that the plaintiff's x-rays carried out on his thoracic spine had symptoms "suggestive of Scheuermann's disease", a disease relating to an increased curvature of the thoracic spine.
46 The second defendant called Dr Kenneth Francis Maguire, sports physician. Dr Maguire conducted an MRI of the plaintiff's cervical spine on 6 December 2004 where he found minimal anterior lipping at the C4-C5 disc level, but no major disc injury, no compression of the disc or damage to the disc at that level. Nor was there any evidence of nerve root impingement. Dr Maguire suggested that there be facet joint injections undertaken. It was his experience that if the facet joints are selectively injected and the pain disappeared, then you would be able to assume any abnormality was of some significance. He recommended that Mr Markey undergo facet joint injections. Such injections have been used for 20 or 30 years in such cases. If pain improves after the injections, you would then suggest that the facet joints are in part contributing to the patient's pain. Doctors would then be able to follow that up with another procedure, a rhizotomy, which numbs the nerves to those joints. That can give quite significant pain relief for two or three years at a time. According to Dr Maguire, there was very little chance of anything going wrong with the procedure. As to the long-term effects of the treatment, Dr Maguire said they can be anything from half an hour to life.
47 Under cross-examination Dr Maguire confirmed that the radiological changes to the plaintiff's cervical spine are extremely minor. Under cross-examination Dr Maguire confirmed that the majority of people are more than happy to go ahead with the facet joint injections, despite the intrusive nature of having a needle in your spinal canal because they "will do anything" to alleviate their symptoms. The plaintiff did not avail himself of this procedure.
48 Dr John Kingston Ker, a consultant physician in rehabilitation medicine, was called by the plaintiff. Dr Ker was consulted on 4 April 2005 and then reviewed the plaintiff on 29 April 2007. Dr Ker gave his opinion that the plaintiff had sustained an indirect neck injury which was responsible for his headache and neck stiffness and that there is no direct
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- correlation between the radiological appearances and the neck pain. He also noted that the wedged deformity seen in his thoracic spine has features of Scheuermann's changes. When considering the plaintiff's ability to work Dr Ker was of the opinion that the plaintiff clearly has work skills which could be applied in less physically demanding work. And he said that he personally doubted that the plaintiff's working life had been permanently curtailed as a consequence of his injuries. In his report in 2007 Dr Ker stated that the plaintiff would not be able to sustain his pre-accident work given the necessity to regularly utilise his arms at or above shoulder level because that produces neck pain, right shoulder pain and renders more intrusive his occipital headaches. But Dr Ker reiterated his view that the plaintiff has a level of work skills and educational background which would allow him to diversify into other forms of wage earning activity. Dr Ker further found that his day to day physical functioning at the Maylands boat yard indicated a physical capacity for work which he thought could be harnessed in other forms than a self-employed electrician. Dr Ker completed his report by saying:
"I remain of the view that your client's working life has in every likelihood been preserved and not curtailed as a result of the injuries he sustained in the cycle accident on 24 February 2004."
50 In his report Dr Ker had noted that the plaintiff described diffuse paraesthesia in the fingers of both hands, but that this did not correlate with any specific dermatome. Dr Ker explained that because of the way the nerve supply reaches C6, C7 and C8 you would see more objective evidence of altered sensory function not just complaints of pins and needles. But in this case there was no such altered sensory function and that is why Dr Ker found that this complaint did not correlate well anatomically (T 170).
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51 Under cross-examination Dr Ker expressed a belief that the plaintiff needed to have vocational assistance in order to return to the workforce. Dr Ker said he makes recommendations, but he does not independently pursue programs of vocational rehabilitation. Dr Ker also concurred in the view of the other medical specialists that undertaking facet joint injections would have been useful in determining the significance of pathology at C4-5 as a contributor to his pain. Professionally Dr Ker believes that facet joint injections are a useful tool for two reasons – they are useful as a diagnostic test and they have a therapeutic usefulness as well in terms of providing pain relief (T 174).
52 Under re-examination Dr Ker confirmed the report he had had from the plaintiff that he was riding on the cycle path adjacent to the Scarborough Beach Surf Club, there was a puddle, that he cycled into this puddle not knowing the depth of it and that is when he came off the bike. But Dr Ker went on to mention the plaintiff's return later to the site and that he believed there was a depression in the road where bitumen had fallen away and he believed he had cycled into that because it was concealed by the water.
53 Mr Richard Vaughan, neurosurgeon, was called by the plaintiff. Mr Vaughan examined the plaintiff on 13 November 2006. In his report Mr Vaughan noted that the plaintiff had told him he was riding his pushbike on a path leading towards the Scarboro Beach Life Saving Club and through a pool of water, accelerating to get over a hill following and as he commenced the acceleration the bike suddenly stopped and he was catapulted off, landing on concrete some metres away and was dazed. It also emerged in Mr Vaughan's report that the plaintiff told him he had had no previous head injury or cervical injury. The only pathology noted by Mr Vaughan from the investigative reports was some early degenerative changes, particularly at C4-5. Mr Vaughan recommended that scans be taken to the plaintiff's brain and cervical spine. Mr Vaughan said that with his present symptoms which the plaintiff described as stiffness, tinnitus, problems with balance and head neck movement, poor concentration and symptomatology in the extension position of the cervical spine that he would not likely improve to returning to his work in the trained area of electrical contracting. Mr Vaughan left open the possibility of the plaintiff being re-educated, but confirmed he is no longer employable in his field of training.
54 Under cross-examination Mr Vaughan agreed that the important aspect of the bicycle accident was that the bike suddenly stopped. He also
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- agreed that the plaintiff told him he was dazed for a period of time immediately after the accident.
55 Dr Frederick KitFoong Ng, a psychiatrist, was called to give evidence by the plaintiff. Dr Ng assessed the plaintiff on 1 November 2006 for the report but did not treat him. Dr Ng reported that the plaintiff described the incident as riding his pushbike, coming upon water and that when he went to put on the brakes the brakes did not work because of the water. That he saw some horizontal metal bars on the cycle path, was not able to slow down, made a split-second decision to turn left into another path and in this manoeuvre hit a pothole which was covered by water and fell off the bicycle, hitting his head on the concrete and cracking the helmet. The plaintiff described his present symptoms as chronic tingling in his neck and intermittent neck pain which increased with activity, headaches twice a week, ringing in both ears which was constant and had not been there before the accident, as well as intermittent pain in the shoulder regions near the neck. Dr Ng was told that the plaintiff felt the onset of depression about six months after the accident because of the persistent pain, the physical functional restrictions and his inability to work.
56 Dr Ng diagnosed the plaintiff as suffering from a partially treated major depressive disorder which had been at its worst toward the latter part of 2004 and into 2005. Alternatively he may instead have suffered from an adjustment disorder with depressed mood to a moderately severe extent which is partially treated. Dr Ng recommended that the plaintiff recommence taking antidepressants and suggested that he would benefit from at least 12 to 18 sessions of psychotherapy with a consultant psychiatrist or a clinical psychologist. Finally he found that the plaintiff was only fit to work between six to eight hours a week due to the current reported psychiatric symptoms which would reduce his ability to persist at any work task and diminish his accuracy at work tasks.
57 Under cross-examination Dr Ng explained that an adjustment disorder is a less severe depressive disorder which occurs within three months of an onset of stress. Dr Ng said that with treatment the plaintiff's symptoms would certainly improve. Under cross-examination Dr Ng explained his opinion that the plaintiff's psychiatric condition in 2006 prevented him from working more than six or eight hours a week; that was because he would have difficulties persisting in his work task and being accurate in the task due to the emotional symptoms that the doctor had noted in his report and his diminished motivation, having difficulties with sleep, and not being able to enjoy what he did. Under
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- cross-examination Dr Ng explained that a major depressive disorder is chemical in nature, whereas an adjustment disorder may be or may not be. Dr Ng agreed that when he saw the plaintiff he had been off antidepressants for perhaps a year or two.
58 Dr Alan Home, an occupational physician, was called by the first defendant. Dr Home saw the plaintiff on 5 September 2005 and provided two reports (Exhibit 21). Dr Home had previously seen the plaintiff on 20 January 2004 in relation to a fall on his outstretched hand that had occurred some two months prior to that date. At that time the plaintiff had right shoulder pain and was referred to a physiotherapist where he made a good recovery and did not complain again of shoulder pain until after the bicycle accident. Although he had previous knee and shoulder injuries, Dr Home found that the bicycle accident exacerbated the right shoulder and knee pain and is the cause of new neck and upper back pain. The plaintiff also reported to Dr Home that on 2 June 2004 he had exasperation of neck pain while bending over while working.
59 The plaintiff's account of his accident to Dr Home included a description of the pothole that had been filled with water, that the wheel of his bicycle struck the hole causing him to lose balance and fall headlong onto the concrete driveway where he struck his helmet which cracked and he lost consciousness. The plaintiff's current symptoms in 2005 when he saw Dr Home were daily headaches present most of the time over the entire skull associated with nausea but no vomiting and no other neurological symptoms. He did describe dizziness with occasional vertigo and said his whole spine had been damaged by the accident and that he experiences pain in his neck and shoulder, constant in nature, at an intensity of six out of 10. Dr Home explained that he found it difficult to obtain clear information about the frequency or duration of the plaintiff's symptoms because he was somewhat evasive and said he did not want to "get pinned down" or "contradict himself at a later time". (Exhibit 21, p 5).
60 So far as his right knee was concerned, the plaintiff told Dr Home that he had undergone a partial meniscectomy in mid 2002 while under the care of Dr Greg Janes, an orthopaedic surgeon. The pain in his knee returned to the previous level after his bicycle accident, but he felt this was probably a pre-existing problem.
61 Dr Home assessed the plaintiff and found no evidence of traumatic injury after reviewing his radiological investigations, although there were very minor degenerative changes at C4-5. Dr Home also found the degree
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- of restriction of cervical spine movement on the day he was examined was unusual compared to the range of movement demonstrated by Dr Ker's report in March of 2005. When Dr Home examined the plaintiff in September 2005 his active range of movement demonstrated about half that reported by Dr Ker and in the opinion of Dr Home, this "may reflect voluntarily inhibition on the part of Mr Markey". (Exhibit 21, p 9). Dr Home said that the radiological evidence provided no evidence of significant structural injury that would lead to such active restriction of movement.
62 Dr Home's opinion was that the plaintiff was fit to undertake a wide range of sedentary, semi-sedentary or light manual employment, including electrical repair work at bench height. He would exclude him from any requirement to climb into ceiling spaces or do heavy manual work above shoulder height. However, in Dr Home's view, bench height work would be within his capacity. In Dr Home's opinion the plaintiff could undertake such work on a full-time basis. In a further report on 20 July 2006 Dr Home confirmed that the plaintiff is realistically capable of performing full-time work of a sedentary, semi-sedentary and light manual nature, including light manual work at bench height undertaking electrical repairs. Dr Home found there is no objective medical basis which would restrict him from that undertaking.
63 Dr Home explained that the plaintiff told him during the three months or so he worked after the accident that he was picking and choosing his jobs in order to avoid undertaking work that required him to climb ladders. The plaintiff told Dr Home he did a lot of things like replacing power points and light switches, not getting into ceiling spaces and doing ground level work. It is for that reason that Dr Home formed the view there is no objective medical basis upon which to restrict him from undertaking light electrical maintenance work.
64 Under cross-examination Dr Home was asked whether he generally found some suspicion towards a doctor doing a medico-legal referral when referred by an opposing party. Dr Home, however, said that generally speaking most patients, once it is explained and discussed, are very cooperative and most do not have any problem with it. But he conceded that some people are difficult. Under cross-examination Dr Home confirmed that imaging with x-rays and such does not always correlate with pain.
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Findings on credibility
65 The credibility of a plaintiff in a personal injuries case is usually the central factor in determining whether the claim is established. That is because so much of the case depends on whether the Court can be satisfied on the balance of probabilities as to the accident itself and the aftermath of injury and pain which are necessarily subjective matters. Only the plaintiff can give evidence of what happened and only the plaintiff can experience the pain and changes in his life afterwards. That is particularly so in this case where the plaintiff was the only witness to the accident.
66 In this case the plaintiff's account of the accident gives rise to a number of problems which reflect adversely on his credibility. The first emerges in the difference between his pleading, his evidence-in-chief, and his cross-examination. Paragraph 6 of the statement of claim is in these terms:
"On the 24th February 2004 the Plaintiff was riding a bicycle on a bicycle path ('the bicycle path') adjacent to Scarborough Beach, towards the Surf Life Saving Club when as the bicycle intersected with a concrete driveway ('the driveway') leading to the Surf Life Saving Club, the Plaintiff's bicycle wheel struck a hole in the bicycle path that had been covered by water which had flowed from the Surf Life Saving Club, and the Plaintiff was thrown through the air and onto the driveway ('the accident')."
67 That account of the accident makes no mention of the chicane, makes no mention of water covering the path, makes no mention of turning to the left and makes no mention of the plaintiff applying his brakes and trying to stop. It presents a very different picture of what the plaintiff now says happened, ie the complexity of applying his brakes without effect and driving through the pothole. The pleading also prevented the defendants from interrogating the plaintiff about any of these matters.
68 Another problem with the plaintiff's evidence is that there is no explanation as to why his bicycle came anywhere near the pothole as it is depicted in the photographs covering only a very small portion of the path on the far left edge (Exhibit 1 and Exhibit 2). The plaintiff's own evidence that he rode in the centre of the left-hand side of the path and his denial that he cut the corner when he turned up the driveway are at odds with his evidence that his bike tyres ran through the pothole.
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69 Besides those differences between the statement of claim and the plaintiff's evidence in Court, the plaintiff's various descriptions of the accident to the medical witnesses over the years displays a number of significant and profound inconsistencies. The most profound and unexplained is the plaintiff's answer when asked by Dr Kim two days after the accident whether he hit his head. The plaintiff denied that. Dr Kim's notes of the accident are "fell off bike two days ago onto right shoulder and right knee; did not hit head" (T 149). Yet the plaintiff later told other doctors and said in his evidence in Court (with some variation) that he hit or smashed his helmeted head on the cement driveway and was stunned or lost consciousness as a result of that impact. The only plausible explanation for his denial when questioned by Dr Kim is that he did not hit his head and he has progressively built up his story over the years in an effort to bolster his claim.
70 The plaintiff told Dr Ker in 2005 and Mr Vaughan in 2006 that the accident happened when his bike suddenly stopped in the puddle and he was thrown off. Yet the plaintiff gave no evidence of his bicycle suddenly stopping. His sworn evidence was quite a different account of the accident.
71 There are other factual matters that show a propensity on the part of the plaintiff to exaggerate his case. Initially and in his pleading he spoke of water covering the pothole; yet his evidence at trial was that the water covered the whole path to a depth of up to an inch (5 centimetres) over an area that would have to be at least a square metre (see Exhibit 12, photograph 3, and the words SEP 2005. The plaintiff gave evidence the water extended over the path that far). I do not accept his evidence about that. Nothing in the appearance of the path gives any indication how water could pool on such a relatively flat surface, raised as it is above the surrounding sand. No doubt the plaintiff expected the exaggerated evidence about the size of the pool of water would enable him to explain why he could not have avoided the water and stopped for the chicane.
72 Two days after the accident, when Dr Kim examined his face and head, she found "no skin break or signs of external injury, no lumps or bumps felt, no local tenderness" (T 151). And, importantly, she found "all passive movements of head and neck full and painless" (T 151). Those findings are at odds with later examinations of the plaintiff by a number of specialists. When Dr Home examined the plaintiff in September 2005 the degree of restriction of cervical spine movement was much greater than that demonstrated by Dr Ker in his report having seen the plaintiff in
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- March 2005. This clearly indicated a voluntary inhibition on the part of the plaintiff in an attempt to exaggerate his symptoms.
73 The evidence of the plaintiff's complaints of severe neck pain and headache several years earlier in November 2001 in Queensland was denied by the plaintiff in his cross-examination. He denied any complaint of "severe neck pain", although he said he maybe had headaches. He admitted he had a CT scan, but denied there was any need for that, claiming he just did it because he was considering pressing charges at the time (T 77). That evidence of the plaintiff's is shown to wrongly minimalise what is on its face quite a severe neck injury at that time (T 150-151). This earlier neck injury was denied by the plaintiff in his instructions to Dr Ker, Dr Vaughan, and Dr Home. That denial by the plaintiff of a factual matter that the doctors would have taken into account casts serious doubt on the opinions of those doctors.
74 Besides the exaggerations and contradictions and inconsistencies, there were odd bits of evidence in the case that were surprising and seem clearly untrue but were not pursued. For example, at T 89 the plaintiff was being cross-examined about the depth of the water on the path when he said "Let's say there was 50 or 60 members washing all their surfing equipment out that afternoon and it's quite a pool of water". At T 90 he said "I don't know how many were there", then he referred to what he had seen at Trigg Surf Club on some earlier occasions. The odd thing about this evidence is that there was no evidence from the plaintiff or anyone else about a large number of people washing down equipment at Scarboro Surf Life Saving Club on the day of the accident or at any time. On the day of the accident the plaintiff described seeing "a number of people" (T 53) in a shed at the club immediately after the accident when he observed a boat being washed down at the club. Photographs tendered by the plaintiff as Exhibit 6 and Exhibit 6A showed one, two or three persons involved in washing down equipment at the club. I can only surmise that the plaintiff mentioned 50 or 60 people in an attempt to bolster his case about the amount of water allegedly pooling on the path. It is another example of the plaintiff's propensity to exaggerate his evidence when it suits him.
75 I do accept that the plaintiff did not maximise all aspects of his claim for compensation. So far as his right shoulder and right knee are concerned, he gave evidence that he has recovered from both those injuries. He conceded that any residual symptoms in his right knee are not due to this accident. And he did admit to Dr Ng that he experienced some improvement in his depression since 2005. I accept that those
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- matters are positive factors to be taken into account in assessing the plaintiff's credibility, but they are very minor when compared with the problems I have noted in his evidence and in his accounts to medical advisors.
76 Taking account of all the problems with the plaintiff's evidence, and particularly because of his initial denial to Dr Kim that he hit his head during the accident, I have no confidence in the plaintiff as a witness of truth. His evidence was not credible. I approach his evidence on the basis that any portion of it that appears objectively unlikely or is contradicted I will not accept.
77 These findings on the plaintiff's credibility also have quite a serious effect on the medical evidence. Dr Ker, Mr Vaughan and Dr Home each inquired of the plaintiff whether he had had any previous head or neck injury and the plaintiff misled each of them and did not reveal the 2001 serious assault in Queensland. The plaintiff's failure to disclose that prior injury affects each specialists opinion. And it also leaves some unanswered questions related to the issue of causation – did this accident cause his neck pain? Or, did it exacerbate his earlier neck injury? How much of his present neck symptoms are referable to this accident? Left with this uncertainty I am unable to be satisfied based on the medical evidence that any loss of pre-accident earning capacity was entirely caused by this accident.
78 This is a case where there is no objective medical support in x-rays or MRI's for the plaintiff's neck pain symptoms. That in itself is not surprising; I accept Dr Home's opinion that imaging does not always correlate with pain. And I accept that a plaintiff can have pain with no objective medical explanation. But when I consider the plaintiff's behaviour and exaggerations, both in his evidence and in answering questions by medical examiners, there is not only little on which I can rely to confirm the extent of his neck pain, but there is evidence that tends to suggest he does not suffer extensive neck pain. The plaintiff clearly exaggerated his neck limitations when examined by Dr Home. Of course, Dr Home recognised that and therefore that limitation does not directly affect Dr Home's opinion. But he did not truthfully answer Dr Home's questions about his symptoms, but instead was evasive and did not want to be "pinned down". When a person does not want to be "pinned down" that is a good indication that the evidence being given is not truthful evidence. That is so because there is no danger being "pinned down" where a person is simply recalling events as they happened. If the witness has exaggerated and made up evidence, then it becomes difficult for the
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- witness to keep his story straight. It is in those circumstances that a person would be evasive and not want to be "pinned down". That is because it is not easy to tell the same concocted story twice.
79 Against that background, the plaintiff's refusal to have facet joint injections takes on a special significance because facet joint injections have a double purpose. As Dr Ker and Dr Maguire explained – facet joint injections would have been useful as a diagnostic test in determining the significance of pathology at C4/5 as a contributor to his pain and they have a therapeutic usefulness in providing long-term pain relief. If the plaintiff was suffering such prolonged and intensive neck pain that it prevented him continuing his work as an electrician and interfered with his daily life so as to limit his exercise and his social life, then I would have expected he would have availed himself of facet joint injections which could have diagnosed and potentially eliminated his neck pain. The fact that he refused the facet joint injections casts doubt on the existence of any neck pain and the extent of any neck pain.
Factual Findings
1. I am satisfied on the balance of probabilities there was some water in the pothole when the plaintiff approached the area of the Scarboro Surf Life Saving Club on the bike path on 24 February 2004. I do not accept the plaintiff's evidence that the water pooled across the path.
2. I am satisfied on the balance of probabilities that the pothole was not as deep as is depicted in Exhibit 4. I am satisfied the plaintiff has dug the naturally occurring sand fill from the hole before taking the photographs Exhibit 4 in an effort to bolster his case.
3. I am satisfied on the balance of probabilities the plaintiff could have avoided the water and the pothole by proceeding in the centre of the left-hand lane of the path. If he had done so, the plaintiff could easily have stopped for the chicanes.
4. I am satisfied on the balance of probabilities that the plaintiff did not want to stop for the chicanes and tried to pedal up the driveway so that he could cut through the Scarboro Surf Life Saving Club parking lot and then cycle back to the path without slowing or stopping.
5. I am satisfied on the balance of probabilities that when the plaintiff made the turn up the driveway he cut the corner and went through the water so that he hit the pothole and came off of his bike.
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- 6. I am satisfied on the balance of probabilities the plaintiff did not hit his head when he fell; he did injure his right shoulder and right knee and both the right shoulder and right knee have now recovered.
7. I am satisfied on the balance of probabilities the plaintiff has exaggerated his neck symptoms. He has failed to satisfy me on the balance of probabilities that his neck pain was caused by this bike accident. The 2001 assault was a serious one and I have no reliable medical evidence to assist me.
129 In all the circumstances of this case I am satisfied that a reasonable and prudent bicyclist in the position of the plaintiff ought to have foreseen that he should not have cut the corner, should not have been standing up on his bicycle peddling hard to go up the hill, and that to do so and ride through water on the edge of the path at speed would expose him to a risk of injury. In all the circumstances I am satisfied that any injury the plaintiff suffered was entirely caused by his own negligence.
Provisional assessment of damages
130 I have found that neither defendant is liable for the plaintiff's injuries and in any event the plaintiff has failed to meet the standard of care
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- required of a reasonable bicyclist in his position and therefore damages cannot be awarded. I am, however, required to provisionally assess damages as part of this judgment.
131 The plaintiff seeks damages under a number of headings.
Past loss of earning capacity
132 The plaintiff gave evidence that his electrical installation business was developing well in the lead-up to the accident and submitted tax returns for the three years prior to the injury. Those returns indicate that for FY 2001 he had a taxable income of $19,031, for FY 2002 he had a taxable income of $29,308 and for FY 2003 he had a taxable income of $32,144. This gross income was achieved despite his knee injury in mid-2003 which required him to have some six weeks off work completely and a reduced workload. Another factor drawn to my attention by the plaintiff which I do accept is that there has been a considerable increase in the demand for all skilled tradespersons since 2004 and that would include electrical installers. The plaintiff therefore asks me to take a broad brush approach and to calculate his income to date on an average figure of $40,000 for taxable income. The net figures then from the date of the accident to the date of trial would be $116,184.60. Reducing that by the net income the plaintiff earned during or since the accident ($8,711.97) that would reach the figure of $107,472.63 for past loss of earning capacity.
133 On the findings of fact that I have made I am not satisfied that the plaintiff's ongoing neck pain was caused by this bike accident. That is because of the 2001 assault causing serious neck injury and Dr Kiely's original examination of his head and neck. I accept the plaintiff's submission that the defendants have failed to plead a pre-existing condition, but the plaintiff failed to disclose his previous neck problems to his medical assessors so that I do not have any reliable medical evidence to satisfy me on the balance of probabilities that his neck pain was caused by this bike accident. I have also found that I am not satisfied he hit his head when he fell because of his answer to his doctor a few days later. The injuries I am satisfied he suffered are injuries to his right shoulder and right knee from which he has now recovered. Therefore in assessing past loss of earning capacity arising from this bicycle accident I would reduce that figure and allow the plaintiff only a sum of $25,000 to cover the period when his shoulder and knee problems prevented him from continuing his employment as an electrical installer.
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- Future loss of earning capacity
134 For the reasons indicated above I am not satisfied that the plaintiff has any future loss of earning capacity arising from this accident. The evidence of Dr Ng, the psychiatrist, did not assist me in any way. It was entirely subjective evidence based on what he was told by the plaintiff and the plaintiff is not a reliable informant. I have no confidence at all and am not persuaded that there is any psychiatric limitation brought about either by depression or any more limited disorder which would interfere with his concentration or memory or persistence. While I accept the basis of the plaintiff's calculations, I do not accept that the plaintiff's condition arises from the bicycle accident and therefore there is no future loss of earning capacity.
Past special damages
135 The quantum of past special damages has been agreed at $4,567.10.
Future special damages
136 I do not accept Mr Ng's opinion that the plaintiff would benefit from psycho-therapy. Nor do I accept that any need for analgesia or antidepressants arises as a result of the bicycle accident. Therefore I would not allow any future special damages.
Damages for non-pecuniary loss
137 The assessment of general damages for non-pecuniary loss is now governed by the provisions of s 9 of the Civil Liability Act which provides:
"(1) If the amount of non-pecuniary loss is assessed to be not more than Amount A for the year in which the amount is assessed, no damages are to be awarded for non-pecuniary loss …"
138 From the Government Gazette of 26 May 2006 Amount A is $14,000. In this case I would have awarded a nominal amount of $3,500 for the injuries to the plaintiff's knee and shoulder. As that amount is less than Amount A I am not allowed to make an award for non-pecuniary loss.
139 The provisional award of damages is $29,567.
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