Mccrae v Nominal Defendant & Ors

[2005] SADC 42

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

MCCRAE v NOMINAL DEFENDANT & ORS

Judgment of His Honour Judge Herriman

11 May 2005

TORTS - NEGLIGENCE - ROAD ACCIDENT CASES - ACTIONS FOR NEGLIGENCE - APPORTIONMENT OF DAMAGES

Plaintiff sues three defendants for damages for personal injury arising out of separate motor vehicle accidents.   Involvement of the first and second defendants in particular accidents not established.  Claims dismissed.  Negligence admitted by third defendant but dispute as to accident dynamics.  Claim of contributory negligence not made out.  Causation - prior injuries and findings as to which injuries attributable to or aggravated by third accident.  Damages awarded for non-economic and past economic loss.

Wrongs Act 1936 (SA) s.24B, referred to.
March v Stramere (1990-91) 171 CLR 506, applied.

PERSONAL INJURY MATTERS

Soft tissue injuries causing 2.5% neck disability with headaches, 4% thoracic disability.
Law Type: Wrongs Act s 35A up to 30/11/02
Wrongs Act Scale: 5
Total Assessment: $24,001.80

MCCRAE v NOMINAL DEFENDANT & ORS
[2005] SADC 42

INTRODUCTION

1. In this action, the plaintiff sues three defendants for damages for negligence arising out of separate motor vehicle accidents which he says caused him personal injury and loss.

2. In the first of those, on 6 December 1999 (“the first accident”), he was the driver of a Mitsubishi sedan which was allegedly struck from behind by a vehicle driven by an unknown driver (the Nominal Defendant) whilst in a line of traffic approaching traffic lights at the intersection of Portrush Road, Cross Road and Glen Osmond Road.  In consequence, he says, his vehicle was pushed into a further collision with a BMW sedan in front of him and he suffered injuries including a loss of consciousness, dizziness, nausea and headaches, damage to his neck and left shoulder and, later, anxiety and depression.

3. On 26 April 2000 (“the second accident”), the plaintiff was leaning on the passenger’s side of a stationary Ford motor vehicle parked at the kerb of Commercial Road, Port Adelaide, when it was allegedly struck on its off‑side by a bus driven by a Mr Fraser.  The blow was a glancing one, causing minor damage to the outside of the vehicle’s rear vision mirror, but its effect was to cause the plaintiff to be thrown or otherwise to throw himself away from the Ford and onto the footpath.  As a result, he aggravated the injuries suffered in the first accident and, further, injured his right foot and right shoulder.

4. On 23 September 2000 (“the third accident”), the plaintiff was driving his Mitsubishi sedan in the car‑park of the Campbelltown Shopping Centre, when it was struck by a reversing vehicle driven by a Mr Borgas.  In an unsuccessful attempt to avoid that collision, he accelerated and, after being hit by Borgas’ vehicle, collided with bollards in the car‑park.  In consequence, he says, he aggravated his previous injuries and also injured his upper back.

5. Each of the defendants has denied liability. 

6. In the case of the first accident, the nominal defendant denies that any vehicle collided with the rear of the plaintiff’s vehicle and says that the only collision was between the Mitsubishi sedan and the BMW in front of it.  It further denies that proper notice was given or that the plaintiff made due inquiry and search.

7. As to the second accident, the named defendant admits he was driving a bus on that day, but denies that he was in the vicinity of the alleged accident at the time and further denies that his bus collided with the alleged or any vehicle on that day.  He says that, even if such a collision did occur, it did not cause the plaintiff to be thrown to the footpath, nor did it cause him any injury.

8. As to the third accident, that defendant admits that he negligently reversed into collision with the plaintiff’s motor vehicle, but denies that the plaintiff then or in consequence collided with bollards in the car‑park.

9. The three accidents have some common features:

   (1)In each case, save perhaps for the alleged collision with the bollards, the impacts were relatively slight ones and caused minimal vehicular damage.

   In the first accident, the plaintiff says the collision was between the front of the unknown vehicle and the towbar attached to his vehicle.  His towbar was not damaged and he says he observed only slight damage to the numberplate of the unknown vehicle.  There was very slight damage to the rear bumper of the car in front of him and no real damage to the front of his car.

   In the second accident, the collision dislodged the plastic shroud or surround of the rear vision mirror of the Ford, but did not damage the mirror itself.  There was also some suggestion that the bus scraped the side of the Ford and left some paint marks there and, as well, that it caused the loss of some engine coolant.  I will come to that evidence in due course, but it is enough for the moment to say that, however viewed, the damage to the Ford was minimal.

   There was no evidence of any damage being caused on that day to the bus driven by the second defendant or any other bus or vehicle:  indeed, as I have said, the second defendant denied being there or being involved in any collision.  Otherwise, there was expert evidence to the effect and it is, as well, a matter of common sense, that a collision of the kind described which did no more than remove the outer plastic shroud of the mirror, must necessarily have been a slight one.

   As to the third accident, there is no doubt that the rear bumper of the third defendant’s vehicle collided with the left rear bumper of the plaintiff’s motor vehicle and it was contended that there was minor damage caused to those areas on each vehicle, but it was not that aspect of the incident upon which the plaintiff appeared to rely, so much as his subsequent, but disputed, collision with the bollards which, he said, split his front bumper, smashed his light and damaged his numberplate.  I will come to discuss the issue of this later damage in due course.

   (2)There was limited material corroborating critical aspects of the plaintiff’s account of each accident.

   In the case of the first accident, the plaintiff called one witness, his passenger Jarrod Lowrie, who supported his claim that there was a first collision from behind him.  There was no other oral or physical evidence tending to corroborate it, albeit it was common ground that the plaintiff’s vehicle collided with the rear of the BMW in front of it.

   As to the second accident, there was no other witness called as to its occurrence and the only corroborating material was the confirmed observation of some damage to the Ford’s external rear vision mirror and the second defendant’s acknowledgement that he had driven his bus northwards along Commercial Road, Port Adelaide, at particular times on that morning. 

   As to the third accident, there was clear and uncontested evidence of an initial impact between the third defendant’s and the plaintiff’s vehicles, but again, no supporting evidence from anybody to the effect that the plaintiff’s vehicle then collided with the bollards; indeed, the third defendant’s evidence effectively denied there was a second collision.  There was, however, photographic evidence of some damage having been suffered, at some time, to the front driver’s side bumper of the Mitsubishi.

10. It can thus be appreciated that, with respect to all three accidents, critical aspects of liability and causation fell to be determined largely upon the evidence of the plaintiff himself.  His credibility was the subject of a lengthy and concerted attack at trial and, in the particular circumstances, I am minded, at the outset, to discuss that challenge and questions of credibility generally.

    CREDIT ISSUES – THE PLAINTIFF AND OTHER WITNESSES

11. In assessing the plaintiff’s evidence, I have kept in mind the observations of the examining psychiatrists, who found him to be discursive, vague and slow to get to the point.  I also found that to be the case.  Of itself, such an observation does not reflect adversely on his reliability and, indeed, I have sought to make allowances for those characteristics in weighing his evidence. 

12. Having done so, I am nevertheless obliged to say that I had virtually no confidence in the reliability of most of what he told the court.  In some respects, that lack of confidence arose out of his demonstrably poor memory, but for the most part, it was because I consider he had deliberately sought to mislead numerous people about the circumstances of each accident and, ultimately, the court itself.  I recognise there was some evidence capable of corroborating his account of events but, for reasons which I will come to, I was not persuaded by its strength or cogency.  I was not satisfied that any of the accidents occurred (if at all) in the manner described by him, nor that they produced the consequences asserted by him. 

13. These findings are not to imply that I accept unreservedly the evidence of all the defence witnesses and, indeed, I do not.

14. There were, however, innumerable matters which caused me to lose faith in the plaintiff’s credibility and I will touch upon them as I discuss each separate accident, its consequences and other general matters.  In approaching the matter that way, I will of necessity also comment on the reliability of the evidence given by other witnesses or contained in allegedly corroborating materials.

    The First Accident – 6 December 1999

15. There were three witnesses who gave direct evidence about the circumstances of the first accident:  the plaintiff, his passenger Jarrod Lowrie and the driver of the BMW, Mr Churchett.  I will discuss the evidence of each of them and other evidence touching upon its reliability.

    1.1On the plaintiff’s account, a first collision occurred when the unknown vehicle behind him struck the rear of his car.  The force of that impact propelled his vehicle into collision with the rear of Churchett’s BMW.  As a result, he said, he lost consciousness for a time that he could not estimate, but he then regained his senses and got out of his car.  He saw a man standing between his car and the BMW, but his first movement was to go back to look at the car behind him.  It was a blue Ford station sedan and it had a scuff or crack in its front numberplate.  He looked into it and saw it was driven by a female.  He thought she was aged 30 to 40.  There was a towbar at the rear of his car, but he did not look to see whether his car was damaged, because he was then distracted by a call from the man standing in front of his car.  He walked up to that man, who said something about his car being hit and pointed to damage to the rear of the BMW.  In response, he told the man that he had been “nosed” from behind by the station sedan.

    As a result of the collision, he felt dazed, shocked and angry as well, as he was going to be late for work.  He was then carrying out contract house‑painting work for a Mrs Thomas.  He soon developed a headache and his neck became heated. 

    By the next day, he was stiff and sore and had right‑sided neck pain and continuing headaches.  These symptoms got worse but he persisted with his painting contract and completed the work over several days.  He took analgesics.  His symptoms continued when he returned to Broken Hill for Christmas that year.  He later sought medical attention.

    1.2That was the account he gave in court, but it conflicted with other evidence and, further, he was also challenged over a number of accident descriptions he had allegedly given to other parties.  I will deal with these matters in turn:

    1.2.1It was put to him that he had told the defendants’ medical examiner, Dr Eriksen, that just prior to stopping and being struck by the Ford, he had been talking to his front seat passenger, Lowrie.  He denied having said that. Dr Eriksen was called and said that that was, indeed, the history provided to him.

    1.2.2It was put to him that he also told Dr Eriksen that there were four cars involved in the collision.  He denied saying this, but suggested he might have been relating to Dr Eriksen that there were other vehicles involved in another, separate, rear‑end collision several car spaces away.  Dr Eriksen said, however, said that the history provided to him was of involvement in a four‑car collision.

    1.2.3As to his claim that he briefly lost consciousness, he told Dr Eriksen that this was for two or three seconds and Dr Alexander that it was for 10 to 20 seconds.  Plainly, he could not have known the time actually involved and he is not to be criticised for this, but he then sought to explain the latter estimate by saying that his passenger, Jarrod Lowrie, had told him that.

    For his part, Lowrie denied that the plaintiff lost consciousness at all and denied telling him that he had. 

    His claim as to loss of consciousness is also inconsistent with Churchett’s account of the plaintiff getting out of his car promptly after the accident.

    1.2.4There is then the history, taken by Dr Eriksen, of the plaintiff having been speaking to the driver of the car behind when Churchett interrupted him in an agitated way.  He denied telling Eriksen that and it is plainly at odds with what he told the court, but again, Eriksen said that it was part of the history provided to him by the plaintiff.

    1.2.5The plaintiff’s claim that after the accident he got out of his car and went immediately to its rear, was squarely contradicted by Churchett, who said the plaintiff came forward immediately to the point between their cars.  Indeed, he was already there by the time Churchett had put his brake on, switched his ignition off and alighted from his own car.  It was also contradicted by the evidence of Lowrie, who described the same movement, that is, the plaintiff going directly to the front of his car.  Finally, the history provided to Professor Goldney, the recounting of which he was confident of having heard, involved the plaintiff undertaking that same initial forward movement.

    Neither Lowrie nor Churchett described the plaintiff as going to the rear of his car at any time, although he did tell Goldney that he later went back there.

    On all the evidence, and for reasons elsewhere expressed, I do not accept the plaintiff’s evidence as to this and I am satisfied his first movement was to go to the front of his vehicle.

    1.2.6As to the plaintiff’s claim that he told Churchett at the scene that he had been nosed from behind, Churchett squarely denied that any such statement had been made to him. 

    At some point in his evidence, the plaintiff sought to suggest or imply that perhaps Churchett had not heard that remark, but he did not advance any cogent reason for making that suggestion.

    1.2.7Churchett not only denied that such was said, but also stated that he saw nothing and that nothing happened at the scene which indicated to him that any vehicle had collided with the rear of the plaintiff’s motor vehicle:  indeed, it was apparent he did not take any particular notice of vehicles stationary to the rear of the plaintiff. He spoke of having brought his vehicle to a halt, then looking in his rear vision mirror to check the vehicle behind, seeing the plaintiff first apparently conversing with his front seat passenger, then looking forward in a surprised way and then colliding with his car.

    That account was a somewhat elaborate one, but Churchett presented as a very careful, indeed anxious, man who took considerable pride in his car.  I am inclined to discount his description of seeing an expression of surprise on the plaintiff’s face but, for all that, his observation of the plaintiff talking to his front seat passenger matches, somewhat strikingly, the history of the accident provided by the plaintiff to Dr Eriksen.

    Whilst Churchett was plainly unable to say, from his position, whether the plaintiff’s vehicle was first struck from behind by another vehicle, I prefer and accept his evidence that the plaintiff said nothing to him about such an occurrence and I reject the plaintiff’s evidence to the contrary.  Indeed, in keeping with his nature, I am satisfied that had Churchett been told of such an event, he would have taken prompt steps to secure the details of the third vehicle allegedly involved, yet he did not do so.  Further, I am satisfied he would have well remembered mention of it, had he been told about it.

    1.2.8There is then the plaintiff’s account, given in court and indeed to Dr Alexander, in which he said that as a result of the initial impact from behind, his head was thrown forward, then back, then forward and up, whereupon he hit his head on the roof. 

    Jarrod Lowrie did not provide such an elaborate account and simply said that the plaintiff hit his head on the sun visor. 

    Whilst not much might turn on the latter point, the body mechanics described by the plaintiff are both overly elaborate and, in a common sense way, unconvincing; ordinary principles of inertia would suggest that an initial forward movement of the head is more consistent with an impact with the vehicle in front, namely, the BMW. 

    I do not place great weight on those observations, however; perhaps the plaintiff was mistaken about just how his body behaved at the relevant time.  At the least, though, they serve to demonstrate the plaintiff’s tendency to elaborate upon or reconstruct what occurred.

    1.3It was put to the plaintiff that his account of being first struck behind was a recent invention, but I am satisfied from the evidence of Ms Thomas and Mr  Nehmy (both of whom were generally credible) that the plaintiff was maintaining, even on the day of the accident, that he had first been hit from behind.  Of course, the fact that he made those claims does not make them true, but it does rebut the defendants’ suggestion that he made up that part of his account at a later time.

    1.4There was some small dispute as to just what time the first accident occurred.

    The driver of the BMW, Churchett, had originally reported it to his insurer as being close to 10 a.m., but in evidence he was less sure of that.  It had occurred en route to his regular workplace, but he said that in the nature of his work, his attendance times there were variable.

    There was, I thought, an element of reconstruction in his evidence on this point, but I otherwise found him to be a careful and reliable witness and I did not think he sought to deliberately mislead.  In any event, the precise time was of limited relevance. 

    The weight of the evidence, including that of the plaintiff, his passenger Lowrie and the owner of the house to which they then drove, Mrs Thomas, placed the time of the accident just prior to 9 a.m. and, indeed, I am satisfied and find it occurred then.  The plaintiff and Lowrie were then going to Mrs Thomas’ house to carry out house‑painting work.

    1.5There was a measure of dissension as to how many vehicles were held up at the traffic lights ahead of Churchett’s and the plaintiff’s vehicles, and how many progressed through the intersection at the last light change, but I am not persuaded that either party had a clear recollection of this, nor should either be held strictly accountable for their respective estimates.  It was not likely a matter that either then thought was of great moment.  What is plain is that, for one reason or another, the intersection was congested and the traffic lights were permitting only small numbers of southbound cars through during each phase.

    1.6In the traffic conditions described and taking account of the vehicle damage described, it is most unlikely that either Churchett or the plaintiff could have been travelling at any substantial speed at the time of their collision, if, indeed, Churchett was moving at all. 

    In evidence before me, the plaintiff said he was almost stopped prior to being struck from behind by the first defendant.  In his police report, he estimated his speed at 15 kilometres per hour.  It was put to him in cross‑examination that he had told Dr Waters he was travelling at 45 kilometres per hour at the time, but he said he could not have said that and that must be an error.  Dr Waters was not called, so I make no assumption about that suggestion.

    1.7Dr Alexander recorded the plaintiff as having told him that he was travelling at 40 kilometres per hour when the car in front stopped suddenly and he was hit from behind by the unknown driver.  It was a six‑car chain collision.  The plaintiff denied describing it in that way to Dr Alexander.

    When the accuracy of his records was called into question, Dr Alexander, on this issue and, indeed, on several others, retreated from the position that his history was strictly accurate or complete.  To some degree that reflected on his own reliability.

    1.8The plaintiff did not immediately report the vehicle to the police and, indeed, did not do so until 1 February 2000 (Ex. D3).  On his account, he had been told some weeks before, by Dr Alexander, to see a solicitor and, indeed, told by that solicitor to make the police report, yet the evidence plainly discloses that, at the very earliest, he first mentioned the accident to Dr Alexander on 27 January and first spoke to his solicitor on 2 February 2000.  His time estimates do not sit well with these facts.

    1.9At all events, when the plaintiff did make his initial police report on 1 February, he said nothing about a third vehicle or any unidentified vehicle and, indeed, did not mention any impact of any kind to the rear of his car.

    In cross‑examination, the plaintiff advanced no cogent reason for that omission, but said that, some time later, after speaking to his solicitor who had by then obtained that report, he went back and made an amended report, which referred to the role of the unidentified vehicle in the collision. 

    Both reports were tendered.      

    1.10There was then the property insurance question.  Churchett had been comprehensively insured with MMI Insurance and had promptly had his damage assessed and repaired by that party.  The plaintiff agreed that soon after the accident, he received a letter of claim from MMI seeking reimbursement of Churchett’s repair costs in an amount of about $1,000.  He said that, in response, he rang that insurer and told them he was not responsible for the loss. He readily agreed, however, that he did not then suggest to them that any other driver was responsible; in particular, he did not say anything about a Ford Falcon driver behind his car causing the accident.  Given his evidence as to the circumstances of the collision, that seems to me to be a very odd omission.

    1.11It must be considered, too, against the evidence of Churchett about an abusive phone message he received on 17 December 1999 from a person he said sounded like the plaintiff.  It was left on his mobile phone.  The author of the message said that he had received a letter from MMI about damage to the BMW, that the cost was ridiculous and that the matter would be contested in court.  There is no need to repeat the terms of abuse in it and I draw no inference from them, but the content of the message was significant in that it made no mention of the presence or responsibility of the unknown driver.  The plaintiff did not squarely admit to being the author of that message, but said it was possible that he was; he could not remember.

    In all the circumstances, the inference is irresistible and I find that the plaintiff was, indeed, the person who left that message, which was carefully transcribed by Churchett. 

    1.12The only other witness called by the plaintiff as to the circumstances of that accident was his passenger Jarrod Lowrie. 

    Lowrie told the court of their car first being struck from behind and then being forced into the BMW in front.  He did not himself get out of the motor vehicle; indeed, did not even look behind to see the offending vehicle nor apparently take much interest in the matter at all.  He did recall, he said, seeing a blue Falcon pull out from behind their car and drive forward in the adjoining lane, a short while after the accident.  It was driven by a female person but he did not see or note its numberplate.  He could not be certain that it was the vehicle immediately behind their car but believed it was because of the angle from which it appeared.

    I am satisfied that Lowrie’s account of the initial collision from behind was not a recent invention because it is apparent that he gave that account to his mother soon after the accident.  Even so, I found him to be a generally unreliable witness and for a number of reasons:

    (a)he was then a 16‑year‑old lad who was helping the plaintiff in some painting jobs and apparently earning some pocket-money.  His mother was then, or had been shortly before then, in a relationship with the plaintiff and I am satisfied that that factor likely influenced the accounts he gave then and later at trial;

    (b)his behaviour in the circumstances described by him was altogether surprising.  To not move from his vehicle, nor look behind, nor take any apparent interest in the blue Falcon, when, on his account, the plaintiff had gone directly to the front and was still talking to the BMW driver as the Falcon drove off, is barely credible;

    (c)further, it emerged that he had been interviewed, on 10 April 2001, by an investigator employed by the plaintiff’s solicitors for the purposes of making due enquiry and search.  That interview had taken place at the plaintiff’s solicitor’s office and he had been brought there.  He did not dispute its contents.  Initially, he had given the investigator on tape a simple account of Churchett’s vehicle stopping suddenly in front of them and the plaintiff’s vehicle running into the back of it.  He had been asked whether their car had been hit from behind by another car and he had said it had not. 

    He agreed that at that point in the interview, the tape had been stopped and he had been given an opportunity to refresh his memory from an earlier statement, whereupon he was again asked whether their vehicle was first hit from behind.  He then said it had been and that he had looked back at that vehicle immediately after being hit.

    Having had his attention drawn to those two accounts, he maintained in cross‑examination that there had, indeed, been a collision with the rear of the plaintiff’s car.  Even so, he continued to deny the accuracy of his recorded statement that he had looked to the rear immediately after that impact.

    Somewhat gratuitously, he suggested that the driver of the blue Falcon might not have realised there had been an impact because it was a very minor one.  He agreed he did not attempt to tell the plaintiff that that Falcon was driving away from the scene.

    On being further pressed in cross‑examination, he said he was present in court to “give my evidence and what my statement says” and that he was there to help the plaintiff out.  He commented:  “Well, most of it – all of it happened” (T/C 672).  Ultimately, it was put to him that there had been no collision with the rear of the plaintiff’s vehicle and that the plaintiff had simply driven into the rear of the BMW.  He said that “could well be” true, he was not sure after all these years (T/C 673). 

    The above account of Lowrie’s evidence amply demonstrates the lack of confidence I had in his reliability as a witness, yet he was the only witness at the scene who has purported to corroborate the plaintiff’s account of the first defendant’s involvement in the accident.  I found him  to be a quite unreliable historian.

    1.13The plaintiff said that after speaking to Churchett, he was returning to his vehicle to get some paper to record details when he saw the blue Falcon, which had been immediately behind his vehicle, drive off.  He tried to see its registration, but could not as other cars were following its course.

    As to that evidence, there is some measure of corroboration in Lowrie’s statement about the blue car driving off, but as with Lowrie’s evidence, it struck me as surprising that the plaintiff did not make a better attempt to ascertain the particulars of the Falcon.  It was more or less level with his car when he noticed it driving off and was followed by another car or cars so that, on his account, he could not obtain its particulars.  There is no evidence that that was his last opportunity to do so.  He was unable to say whether it continued on and passed through the intersection or whether it was brought to a halt by the traffic lights.  Had it continued on, then obtaining those details might not have been possible, but there is no evidence that it did that; indeed, the evidence as to very short traffic light phases would tend to suggest otherwise.

    Given that he was in a position whereby Churchett was asserting there was damage to his vehicle and was requiring his particulars, he must have apprehended the importance of the Falcon’s details, yet he took little interest in it after it drove off.

    Of course, it remains possible that there was always a blue Falcon stopped immediately behind the plaintiff’s vehicle and that it later drove past:  the real issue is whether it first collided with the Mitsubishi. 

    Plaintiff’s counsel suggested that it was consistent with his client’s case that Churchett had mistakenly described the plaintiff’s vehicle as a blue or white station sedan rather than sedan, the inference being that he was confusing the plaintiff’s vehicle with the Falcon behind it, but such an inference would be merely consistent with the presence of such a car on the roadway and not necessarily with it being involved in a collision. 

    1.14There is then the plaintiff’s evidence that his front right‑hand side seat restraint was broken in the accident and that he felt it give way at the time he was hit.  He later pointed it out to Lowrie.

    Lowrie agreed that his attention had been drawn to the broken restraint, but described it as the one on the right but to rear.  Perhaps not much turns on that difference, but as I apprehended it, that defect was advanced as a possible reason for the plaintiff striking his head on the roof of his car during the course of the two alleged impacts.

    On that issue, there was the unchallenged expert evidence of the engineer, Mr Hall, to the effect that the loss of a single restraint could not have so loosened the seat as to permit the plaintiff to strike his head on the car roof.  That does not mean there was not such a blow, but merely that, if there was, the broken seat restraint did not cause it.

    1.15As to the consequences of the first accident, on the plaintiff’s account, he was rendered unconscious and was afterwards dazed, in shock and overwhelmed.  He was also angry about being late for work.  He felt heat at the back of his neck and headaches, but nevertheless continued on to Mrs Thomas’ place to proceed with the job there.  He coped with the work that day.

    On the next day, his neck was stiff and sore, he was still shaken and was suffering from headaches, but again he worked on.  Those symptoms got worse over the course of the job, but he nevertheless carried on and completed the work over seven or eight days.

    His account was in part corroborated by Mrs Thomas, who said that he arrived at the job on the morning of the accident angry and flustered and complaining of a stiff neck and, notably, shoulder.  He told her the neck was stiff and sore on the following day, but on the fourth and what she described as the final day, he said he was okay.  He also complained of these things to Lowrie.

    Those complaints are not, however, as well supported by other matters, in particular the following:

    1.15.1He failed to seek any medical treatment until nearly eight weeks later, namely, 29 January 2000, when he first saw Dr Alexander.

    1.15.2That delay is the more remarkable for the admitted fact that the plaintiff actually saw Dr Alexander on 13 December, that is, one week after the accident, concerning his problems with alcoholism and then made no mention whatsoever of its occurrence:  notwithstanding his other evidence to the effect that by that time his pain had become much worse.  That omission is astonishing.  Not only did he not mention the accident, but he actually told Dr Alexander, who recorded it, that he was “well”.

    1.15.3There is then Dr Alexander’s note of a consultation on 27 January 2000, also with respect to other matters, and in the course of which the plaintiff informed him that his painting was “going well”.  When challenged about that in cross‑examination, the plaintiff said that he could have been referring to his fine art painting or he could have been referring to house painting.  He was then asked if he was carrying out a house‑painting job at that time and he said he could not remember; perhaps he was referring to a job that was coming up.  In reality, he was unable to advance any explanation for speaking to Dr Alexander in those terms and, plainly, if he was then working, it is not consistent with his other evidence as to the effects of the disability from which he was then suffering.

    1.15.4There is then the fact that there is nothing in Dr Alexander’s notes of 27 January about the first accident.  The plaintiff’s account of this is that he told Dr Alexander about the accident at the end of that consultation and then arranged to see him two days later, on 29 January.  Dr Alexander allowed that that was entirely possible and that he would not necessarily have made a note of it in those circumstances.  Standing alone, that explanation is plausible enough.

    1.15.5Having then seen Dr Alexander about the first accident on 29 January, the consultation notes record that the plaintiff told him that he felt deep‑seated neck pain some two weeks after it, albeit that he had also felt some pain and shock at the actual time of the collision.  He was unable to offer any explanation for that history, other than to say that it was incorrect.  He agreed, however, that he had not told Dr Alexander that he had had neck pain on the day following the accident.

    1.15.6There is then his claim that Dr Alexander referred him to a manipulative therapist, Mr Montiadis, a claim which Dr Alexander denied.

    1.15.7Separately from that, the plaintiff agreed that he had at one point been referred to an orthopaedic surgeon, Mr Waters, about his right shoulder.  It was put to him that he had then complained to Waters about suffering right shoulder pain after returning to work following the first motor vehicle accident.  He agreed he may have said that.  He was then shown a report of Mr Waters and asked again about that complaint.  I repeat his answer:

    I believe, in reference to that, I would have made mention to the fact that, after the first accident, I had complaints with my neck and that was connected to my shoulder.  I don’t recall making a serious complaint, or making reference to exact times, as in my shoulder, in the first accident (T/C 337) … I’ve never mentioned that I done any major harm or I’ve never had a major complaint with my left shoulder (T/C 338).

    He agreed that he said to Mr Waters that he had not “made a return to work as a painter since his accident in December 1999” but that statement was “referring to, like, paid work and, like, long‑term” (T/C 338).

    The report of Mr Waters was not tendered and I draw no conclusions from its alleged content.

    1.15.8There is then the fact that he actually completed the job for Mrs Thomas, anyway, over seven or eight days and said that there were no duties he was unable to perform, albeit he said that his pain got worse over that time.

    1.15.9The performance of that work is quite inconsistent with paragraph B(vi) of his Affidavit of Loss sworn on 12 March 2003, wherein he states:  “immediately after the first accident I was unable to continue in my employment as a house painter and decorator due to the pain in my neck and due to suffering severe headaches which were of a migraine type”. 

    When challenged in cross‑examination about this, the plaintiff said that what he intended to say in his instructions about that affidavit was that he was unable to carry out further work after he completed that particular job several days later. 

    I found that explanation unconvincing.

    1.15.10Having not sought any medical attention immediately after the accident, the plaintiff had gone to Broken Hill for Christmas and had been there assisted by his mother and nephew, who had applied hot and cold packs to his neck.  He had not chosen to consult a doctor in Broken Hill because he did not, by then, have a doctor there. 

    That is a poor explanation for failing to seek treatment if it was needed.

    1.15.11There is then paragraph 19.2 of the plaintiff’s Amended Statement of Claim, in which he asserts that as a result of the first accident, he suffered an injury to his left shoulder and/or left arm, as well as his neck injury. 

    He agreed, as well, that his solicitors’ letter to Dr Alexander had referred to both shoulders being injured in the first accident, but he said he could not remember telling them these things. 

    I do not ordinarily regard conflicts between the pleadings and the evidence as necessarily reflecting on credibility, but I am satisfied these particular conflicts are significant in the overall context.

    1.15.12There was then the evidence of Mr Nehmy, who spoke of the difficulties the plaintiff had experienced in carrying out painting work at his mother’s (i.e. Mrs Thomas’) premises in the days after the accident.  Mr Nehmy was plainly a good friend of the plaintiff’s and spoke effusively about him.  Even so, he could not remember the plaintiff exhibiting any particular difficulties after the first motor vehicle accident, save that he did on one occasion help the plaintiff by carrying some football prints for him.  Nor did he know of the actual extent of work carried out by the plaintiff after that accident.  I did not feel I was greatly assisted by his evidence. 

    The Second Accident – 26 April 2000

1. As to the second accident, the plaintiff gave an account of going to business premises in Commercial Road, Port Adelaide with a friend, Robyn Taylor.  They went in her car, which she parked in a parking bay to the left of the two or three‑lane, northbound carriageway of Commercial Road.  Taylor went into the premises and he waited outside for her.  He was leaning against the passenger side of her car at a position adjacent to the front roof pillar and his feet were resting on the edge of the adjacent kerb. 

2. At some point he saw that a bus was approaching from the south, at a distance of 100 metres or so.  It was travelling at a speed which he thought was about 60 kilometres per hour, and was moving from an outer lane to an inner lane of Commercial Road, that is, towards the lane adjacent to Taylor’s parked vehicle.

3. He looked away, but then sensed that the bus was quite close to the Ford.  He heard a loud scraping sound and felt a force behind him.  He wanted to get out of the way and threw himself in a westerly direction towards the footpath.  As he did so, he raised his right arm to protect his face.  He fell onto the footpath, his right shoulder taking the force of the fall.  He lay more or less facing west, with his feet some 45 to 50 centimetres from the kerbside. 

4. He said it was the combination of the force of the impact of the bus on Taylor’s car and of him throwing himself away which caused his body to be thrown that way.  At the moment of impact, he said, he felt his right knee go up and down and his body lowering and raising with it. 

5. He got up as quickly as possible and went chasing after the bus.  By this time he noticed it had again diverged, this time to an outer lane, and had stopped at a stop light at St Vincent Street.  He ran towards it and read its bus number, which he said was 1917, and its registration number, which was either WJP-456 or WJP‑458.  At this moment he was 30 to 40 metres from it, but he was not close enough to be certain of those numbers.  The traffic lights then turned green and the bus crossed the intersection towards the lighthouse area of Port Adelaide. 

6. He returned to where Taylor’s car was and met her at the stairs of the shop.  He told her what had happened.  They inspected the car together.  He saw that the plastic surround or shroud of the right‑hand side rear vision mirror had been torn off and bits were hanging from it.  There was also some rubber loose by the windscreen.  He said there was what appeared to be radiator coolant on the roadway, a green fluid, and there were paint marks on the rear bumper of the Ford, where it wrapped around the driver’s side, and on the protective rubber strip which ran along the length of the car.  He did not know whether these marks had been there before.  He produced some photographs of the Ford.

7. In consequence of that accident, he developed severe pain in his right shoulder and the previous pain in his neck was aggravated.  He felt nauseous, was vomiting and had pain in his right foot.

8. After he and Taylor inspected her car, they got into it and he there wrote down the details of the bus.  They then observed that the same bus was now returning from the lighthouse area and travelling in a southerly direction. It was directly opposite their position.  They decided to give chase, but had to first pass and repass through the intersection lights.  They pursued it south as far as Grand Junction Road, but lost it.

9. During all this time, there had been another bus parked at Stop 40A, but it had been there all the time and was empty.

10. After these events, he went with Taylor to the Port Adelaide Police Station, where she made a report of the incident.  He gave her the necessary details, but was not with her as she made the report.  He stood away, by the door.

11. On that evening, he was really shaken up and had extreme pain in his right shoulder, neck pain and headaches that were worse than previously. 

12. He consulted Dr Beckinsale, who conducted a surgery nearby.  Dr Beckinsale in turn referred him to Janet Baines, a physiotherapist, and he saw her twelve to fifteen times.  In the first two weeks after the second accident, his shoulder and headaches became worse but, after then, Baine’s treatment helped him with his neck and shoulder.  Subsequently, his shoulder and neck pain and restrictions were his major problems and they affected his ordinary activities, depending upon the sort of work he was then doing.  He had difficulty in working overhead, in lifting and in simple tasks such as dressing himself.  He attempted to do some house painting with friends who had licences, but he could not manage it. 

13. The period after the second accident was, he said, a lot worse than the period before.  His symptoms from the first accident had developed over time, but the symptoms from the second accident were instantaneous.  His right foot improved over three to four months, but even today he has some problems with it during strenuous ladder work.  His neck responded to treatment over several months, but his right shoulder deteriorated.  His headaches improved, although they are aggravated when he has shoulder pain because that seems to affect his neck as well.

14. In cross‑examination and by means of other evidence, that account of the accident and its aftermath was strongly challenged by the second defendant:

    2.1As to the time at which it occurred, Taylor’s report to the police was made at 12.30 and it then said that the accident had occurred at 12 noon.  Whilst it is likely that the time of the report would be accurately recorded, the estimated time of the accident was a matter of recollection for Taylor.  Even so, there was a measure of consistency between her and the plaintiff over this:  each said that it was reported, variously between 20 and 30 minutes after it happened.

    2.2There was, however, a conflict between the two of them as to the circumstances in which the report was made.  For his part, the plaintiff said he gave the essential particulars to Taylor and that she went to the desk to report it whilst he stood away from her near the door.  She gave quite a different account, saying that he was at the desk with her. 

    I should say that I found her account of these events to be the more likely one.  She had no first‑hand knowledge at all of the accident and the plaintiff’s account of telling her what had happened and then standing away, expecting her to repeat it in the report, is improbable to the point of being bizarre.  I am satisfied he proffered that account of his actions in an attempt to distance himself from the contents of the report, and for reasons which I will discuss.

    2.3The time at which the accident occurred became a matter of considerable significance because Fraser, the bus driver, said that he did indeed drive to and from Port Adelaide on that day and that his trip involved proceeding north along Commercial Road, resting for a short while north of the St Vincent Street intersection and then returning south again along Commercial Road.  His scheduled time of arrival at the terminus on that day after leaving Arndale Bus Station at 10.52 a.m. was 11.10 a.m. and his scheduled departure time to return to Arndale and thence to the city was 11.23 a.m.  These particulars were corroborated by his shift roster (Ex. D12).  The terminus was one or at most two stops beyond the point of the collision.  By 12 noon on that day (the alleged time of the collision) he was, he said, likely to have been somewhere near Ovingham, a suburb a considerable distance from Port Adelaide. 

    He said he was not aware of having been involved in any accident on that day, he had no memory of his bus making contact with any vehicle and when the suggestion of an alleged accident had been brought to his attention a week later, he had promptly inspected the nominated bus, one which he regularly drove, with another person and had been unable to see any damage to it.

    He said that his scheduled times for arrival and departure from Port Adelaide were flexible in the sense that he was permitted a latitude of five, and perhaps as many as ten, minutes on either side of those times, but beyond that he would necessarily have been called up by his employer to answer for not adhering to the schedule.  Whilst he had no independent recollection of the day in question, he was able to say he had not been so called up at that time.  In any event, he said, had he arrived at Port Adelaide late, he would have been able to catch up on any delay by not utilising his full rest stop time at that terminus of 13 minutes. 

    In the face of that evidence, it was put to the plaintiff that, in claiming in cross‑examination that the accident had occurred between 11 a.m. and 12 noon, he had deliberately expanded the time within which the accident might have occurred, in order to accommodate the possibility of Fraser’s bus being there:  the time recorded in the police statement was otherwise quite inconsistent with Fraser’s account. 

    The plaintiff rejected that suggestion.

    2.4The plaintiff was then taken to task over his description of the mechanics of the accident. 

    In his original Statement of Claim filed on 30 October 2002, he had asserted that the impact of the bus on Taylor’s motor vehicle had “thrown” him to the ground and caused him injury. 

    At trial, he sought and was granted leave to amend that particular allegation to allege several potential reasons for his fall, namely:

    10.The contact and/or forces created by the proximity of the bus passing the parked motor vehicle and the plaintiff, including wind or draught forces, and/or the plaintiff’s response to the contact and/or the proximity of the bus passing the parked motor vehicle and the plaintiff, caused the plaintiff to fall to the ground or contributed thereto … and the plaintiff sustained injury thereby.

    On 5 June 2003, the second defendant had obtained a report from consulting engineers Hall Technical Services, the relevant part whereof concluded that, had there been a collision of a kind described by the plaintiff in his original Statement of Claim, the forces involved in it could not have been transmitted into a force capable of propelling the plaintiff in the direction he asserted, namely, a direction roughly perpendicular to that of the bus and towards the footpath.  That evidence was ultimately led at trial and, indeed, not contested.

    It was suggested to the plaintiff in cross‑examination that it was because of that opinion, that he had changed his pleading to accommodate further possible contributing factors. 

    He denied that suggestion and said that upon reading the Hall Report, it had “clarified” his position.  He said that one or a combination of those pleaded events had been enough to actually throw him into the air before he landed on the footpath.  He had perhaps not previously said it, but upon apprehending or feeling a collision, he had attempted to throw himself away from the car. 

    He maintained that upon the impact with the car, he had experienced a downward movement, which had caused the injury to his right foot.

    Hall’s evidence on these matters was firm and not successfully challenged.  It rejected the possibility of there being any vertical force exerted on the car sufficient to cause any perceptible downward movement or to throw the plaintiff upwards.  He said that the force exerted by the bus contacting the mirror would have been a horizontal one and would not have been transmitted into a vertical movement of any magnitude.  In any event, the effects of any minimal vertical force would be quickly “dampened” by shock absorbers, friction and hysteresis. 

    He was asked if his opinion as to that would differ, if it were assumed there had been other contact between the bus and the rear offside bumper strip of the car.  He said it would not, albeit for different reasons.  Such a contact would more likely push the car horizontally and rotate it clockwise and away from the kerb.  He considered and substantially discounted the significance of any draught caused by the passing bus.  It would have been perceptible, he said, but as a minor rocking motion only, and less so at the position where the plaintiff was leaning. 

    Not only did Hall’s evidence withstand challenge, but there was no contrary expert opinion advanced and, indeed, it appeared to me to accord with common sense.  On the face of it, I was left to conclude the only possible cause for the plaintiff’s fall was that he propelled himself away from the vehicle.  I will consider that later.

    2.5There was then the question of damage to Taylor’s vehicle.  As well as the damage to the mirror shroud, the plaintiff suggested there had been a scraping sound and that the paint marks on the bumper and side strip of the vehicle were consistent with further impacts between the bus and the side of the car.  He could not say that the paint marks had not been on  Taylor’s car before the incident, but suggested that they were of a colour similar to that of bus paint. 

    He was tested on the positioning of those paint marks.  He was not aware of any damage to the driver’s side front bumper.  It was then put to him he had told Dr Cohen there was such damage.  He agreed he had told Cohen that or something similar and then said he could recall paint marks “to the front and in the middle”.  Having said that, some two questions later he was again asked about the damage and responded (T/C 241):

    I recall that there was a paint mark or a mark on that at the rear, and a mark along the car, and to my memory right now I can’t recall that there was a mark to the front of that right‑hand side of the bumper bar, if I’ve said that – I may have said that, I don’t say that I didn’t say that.  I’m happy to accept that I may have said that then.  I can’t – yes –

    That passage, as nearly as any, amply reflected his level of prevarication and preparedness to adjust his evidence to accommodate potential conflicts.

    In her evidence, Taylor said how the scuff marks on the side of the car were later shown to her by the plaintiff and she assumed that they were there as a result of the accident because they had not been on the car before that day. 

    She changed her position on that in cross‑examination when her attention was drawn to a statement she had made to the investigator, Mr Coulter.  She had told him that those marks were not fresh. 

    She was obliged to say that her recollection of events would have been better at the time she provided the statement to Coulter and that she could not really say whether the marks were caused by the bus.

    I note then Fraser’s evidence about there being no perceptible damage to his bus when he inspected it a week later.

    In the event, I am not disposed to find that any scrape or paint marks on the side of the car resulted from any collision with Fraser’s bus.

    2.6There was then the matter of the radiator fluid on the road surface.

    According to the plaintiff, it was situated adjacent to the front driver’s side corner of the vehicle, whereas Taylor said it was seeping from the roadway to the gutter adjacent the passenger side front wheel.  She said that she did not then or at any time later take any steps to investigate whether any damage had been caused to her vehicle which might have led to that spillage.

    Mr Hall commented on the matter.  He was then only aware of the plaintiff’s evidence and not of Taylor’s assertion as to its location, but he said that he could not envisage how it might have got to the point described by the plaintiff.

    The implication from the evidence of both the plaintiff and Taylor that the fluid was in some manner a consequence of the collision strikes me as far‑fetched, indeed, given the nature of the collision.  In the absence of any attempt by Taylor to investigate its source and given the likelihood that the only point of contact was between the side of the passing bus and the outermost point of the mirror shroud, I am not satisfied it was in any way connected with the accident.

    2.7There was then the issue of the identification of the bus.

    On the plaintiff’s account, immediately he got up from his fall he chased after the bus and was able to get its registration and identification numbers from a distance of 30 or 40 metres.  The identification number did not in fact match the registration number, but was close to it:  the plaintiff reported the number as 1917, but it was in fact 917.  He then went back to the shop to tell Taylor what had happened.

    Taylor gave a different account of that, saying the plaintiff came into the shop, yelling and holding his neck.  She went outside with him within a minute of that and he then ran towards St Vincent Street and the bus, but he did not catch up to it.  He got about halfway there before it left.  That difference is not a matter of particular moment but there was a further conflict between them that I thought of more significance.  According to the plaintiff, they chased the bus in Taylor’s car as far as Grand Junction Road.  Taylor said that did not happen.  It seemed to me hardly the sort of event that a party would forget or be mistaken about.

    There was also some uncertainty as to how and when the bus number was obtained.  According to the plaintiff, as he chased it to the corner he was able to get its bus and registration numbers.  According to Taylor, she first saw the number of the bus when it returned to a point opposite them, at times variously between two and 15 minutes later, although she then said that she believed the plaintiff had given her its number before then.

    She was then tested on a statement she had made to the loss adjuster Coulter.  She had told him that the plaintiff had first said out the front of the shop that he had not got the number but he had then corrected himself and said he had.  She agreed her statement to Coulter was likely to be the correct one:  she was not now able to recall the events clearly.  Indeed, it appeared to me that her memory of them was poor.

    Elsewhere, she said that the plaintiff went to the median strip to look at the bus as it came back the other way.  For his part, the plaintiff said that he could not see a number on that side of the bus, but according to Taylor she saw a number.

    For his part, the second defendant said he had been assigned to that particular bus and that route at the particular time and, as his schedule showed, he twice that day arrived at the terminus at Port Adelaide, at 10.09 a.m. and 11.10 a.m.

    In the face of Fraser’s denial that he was anywhere near the vicinity of the accident at 12 noon that day, it was put to the plaintiff that at the time the accident was reported to the police, no bus registration number had been supplied (none was in the report) and that he had only nominated that number after making further enquiries:  he had elsewhere acknowledged making such and, indeed, produced his handwritten notes of them, but they were uninformative and inconclusive.

    In response, the plaintiff said he had had the registration number all along, even if it had not been included in the police report.

    All in all, I had great difficulty in making sense of or reconciling the evidence of both the plaintiff and Taylor as to the time of the accident, how and when the bus number was obtained and as to the plaintiff’s enquiries.  For reasons elsewhere expressed, this aspect, too, did not reflect well on the plaintiff’s credibility.

    2.8The plaintiff was attacked over the history recorded by Dr Beckinsale that the bus was, at the relevant time, pulling into a bus stop or parking.  I did not regard that challenge as of particular significance.  If it truly recorded the plaintiff’s account, it was plainly a reconstruction and did not necessarily impact on his credit.

    2.9There was then some unusual evidence from the plaintiff about the medical treatment he had sought in consequence of that accident.  He had seen Dr Beckinsale on three occasions afterwards and had undertaken the physiotherapy recommended by him.  He had not gone to his usual general practitioner, Dr Alexander, because the latter’s surgery was some distance away and he did not feel well enough to drive there. 

    At all events, Dr Beckinsale had wanted him to have x‑rays of his shoulder, but he had been reluctant to proceed with them as he had wanted them to be arranged by Dr Alexander.

    Ultimately, he saw Dr Alexander on 19 May 2000, some three weeks after the accident, and then consulted him a further five times prior to the third accident.  Remarkably, no shoulder x‑rays were arranged by Dr Alexander and, indeed, Dr Alexander’s notes over that period contained no mention at all of any right shoulder complaints.  This omission was put to the plaintiff, but he said that his shoulder was his most significant injury at that time and that he had complained of it to Dr Alexander.  It had been up to Dr Alexander to interpret his complaints and he could not explain why there was no mention in them of his shoulder. 

    It is pertinent to record that Dr Alexander’s notes of the time mention a complaint of continuing whiplash with neck pains and headaches, in particular on 19 May 2000:

    Whiplash continues with neck pain and headaches.  On 26 April 2000, he was leaning against a bus, was concussed, went to local doctor, who referred him to a new physio (T/C 367).

    His following notes refer to whiplash and neck problems, but say nothing of a shoulder complaint.

    I thus viewed the plaintiff’s evidence as to this injury with serious misgivings.

    2.10Professor Goldney’s report (Ex. D1.31), recorded the plaintiff’s history of the second accident in these terms, inter alia:  “the bus side-swiped the car … or some vehicle side‑swiped the car … I assumed it was the bus”.  Professor Goldney said that he had used those words because they were the plaintiff’s verbatim account of what had happened. 

    When that history was put to the plaintiff, he squarely denied relating it to Professor Goldney in those terms and said that what he saw was a bus.  Having given that answer, he was then asked (T/C 256):

    Q.Isn’t it the case that you have a memory of a bus being in the vicinity, someone, something has gone by Ms Taylor’s car, clipping the rear-view mirror on the right-hand side and you’ve fallen to the ground.

    A.The case is that something hit Ms Taylor’s car which I believe to be a bus and then I’ve gone to the ground.

    2.11I am satisfied he told Dr Eriksen that he had hurt his mid‑back in the second accident, yet in evidence he was adamant it was injured in the third accident only.

    2.12Finally, he said that the reference in the Statement of Claim (paragraph 19.2) to injuring his left shoulder and/or left arm in the first accident was an error. 

    The Third Accident – 23 September 2000

1. As to the third accident, the plaintiff said that he was turning into the Campbelltown Shopping Centre car‑park on the afternoon of 23 September 2000 and travelling at 10 to 15 kilometres per hour.  He was intending to park in a space in front of the post office.  To the left, between that point and his position, was a vehicle driven by the third defendant.  He saw that it was reversing from a car‑park at what he described as a high speed.  It was some two to three car lengths away.  He feared that he was going to be hit by it on his left passenger side so he accelerated forwards to avoid contact.  He said the reversing speed of the vehicle could have been 30 kilometres per hour.  He accelerated to about that same speed in order to avoid contact, but it was not to be and his rear passenger‑side bumper was hit by the third defendant’s vehicle.  The impact pushed his car forward and to the left, he attempted to brake but could not do so in time and he hit some bollards at the end of a parking space before coming to rest.  He then reversed his car from that position and got out. 

2. He said there was a minor scrape on the third defendant’s rear bumper and his own rear bumper was split on the passenger side.  At the front of his vehicle, his bumper bar was split, the light was smashed and the numberplate damaged.

3. The third defendant appeared to him to be drunk and as they were obtaining details they had some heated words, whereupon Mr Borges threw the writing materials down and left.  There was some further yelling in the TAB office and the plaintiff then attempted to call the police.

4. The third defendant was called.  He was driving a vehicle of a similar make and model to that of the plaintiff.  He was a crash repairer by trade.

5. He described how he was reversing in a manner and at a speed that he described as “normal” from the car‑park and, as he was doing so, was looking over his left shoulder but through the rear window of his vehicle.  He did not see the plaintiff’s car approaching from his left until it suddenly appeared in the window.  He was unable to stop in time and there was what he described as a “little kiss”.  He said that because of the similarity in the make and model of the cars, it was a bumper‑to‑bumper kiss between his rear bumper and the rear passenger side bumper of the plaintiff’s vehicle.  He stopped his car immediately and the plaintiff’s stopped some two to two and a half metres away from him. 

6. He agreed there were some angry words exchanged and he said they arose from the fact that the plaintiff first abused him in terms that he did not wish to repeat in full.  The plaintiff said to him that he was not concerned about property damage but about the damage to his neck. 

7. He said there was in fact no observable damage caused to his own vehicle and none to the rear passenger’s side bumper of the plaintiff’s vehicle.  There was damage evident to its rear passenger’s side three‑quarter panel, but it was old and obviously so.  In any event, his bumper could not have made contact with that panel – their vehicles were of the same make and would, in the circumstances, necessarily have contacted bumper to bumper.  In considering this evidence, I keep in mind the third defendant’s trade as a crash repairer and what I am satisfied was a measure of expertise in gauging damage. 

8. He said the plaintiff’s vehicle did not hit a bollard at any time.

9. In cross‑examination, he said that he had almost completed his reversing manoeuvre at the time of the impact and had travelled some five metres to do it.  He could not provide any estimate of the plaintiff’s speed but said that he got out of his car immediately after the impact and that the plaintiff’s car was then in the same position as he had seen it stopped through his rear window.  Its front was intruding about one metre into a parking bay.  The plaintiff then suggested to him that there was damage to his rear left bumper, but he said he could not find any there.

10. In consequence of the two accidents, the plaintiff said, his shoulder was twice strained by the seatbelt and he suffered pain in his upper back.  His neck pain was also aggravated, as were his headaches, and he went to Modbury Hospital for treatment.

11. In cross‑examination, he was challenged on a number of matters:

    3.1He was tested on the nature of the damage to the front of his car, caused, he said, by the bollard collision.  Having first said that the damage was to the grille, he was then shown some photographs (Ex. P9) which he had himself tendered and which did not appear to demonstrate it.  His response was that the damage was actually behind the bumper bar and not visible in the photograph.  He produced no other evidence of that damage, nor did he call any corroborating witness as to it.

    3.2He was challenged over his claim of his car light being broken, as that did not appear to be so from Exhibit P9.  He said that he had meant that it was damaged, what he would call “smashed”.  Having regard to the photograph, that struck me as an odd explanation, indeed.

    3.3He denied his car stopped immediately after the impact.  In fact, it continued on to collide with the bollards. 

    3.4He said that he had shown the damage to the rear of his vehicle to a woman from the nearby TAB shop but had not shown her the front-end damage, yet he had told Dr Eriksen that the front-end damage was “significant”.  On any view of the photograph, that appears to be an extravagant explanation.   

    He did not call the woman from the TAB to give evidence, nor did he produce any photograph of the alleged rear‑end damage.

    3.5He agreed that in his police report, he had described his speed at the time as 35 kilometres an hour and the third defendant’s speed as 40 kilometres an hour and he said the latter was not a guess.  He agreed, however, that the damage to both vehicles from their impact was minor, a surprising outcome if either speed was near those figures.

12. In discussing the circumstances of the third accident, I keep in mind that the third defendant admitted that because of his negligence, he collided with the rear of the plaintiff’s motor vehicle.  What is in issue is the plaintiff’s claim that he subsequently collided with the bollards. 

13. On Borgas’ account, there was no subsequent collision, the plaintiff’s vehicle moved only a few metres from the impact and stopped.  The plaintiff did not at any time suggest to him that there had been any other collision or that there was any damage to the front of his vehicle. 

14. Of course, in the photographs (Ex. P9) there is some damage apparent to the right‑hand front bumper bar of the plaintiff’s car and, according to the plaintiff, behind it, but the question remains whether it was caused in the third accident.

15. Were I considering the liability question with regard to this accident alone and without regard to other evidence led in the case, I would nonetheless have found myself satisfied of the reliability of the third defendant’s account of it and would have preferred his evidence over that of the plaintiff.  He gave his evidence in a measured and dispassionate way, he did not seek to excuse his own culpability, he had nothing to gain and the sequence of events he described appeared to me to be likely and natural.  By way of contrast, the plaintiff’s account was plainly exaggerated, unsupported by his own photographs (or, for that matter, any witness) and described a scenario that was highly unlikely.

16. In any event, the reliability of the plaintiff’s evidence as to the third accident is not to be gauged merely by what he said about its mechanics:  it is to be considered against the totality of his evidence in the trial, evidence which, for reasons elsewhere expressed, I found to be quite unreliable.

17. Even so, and accepting the third defendant’s account, it must be acknowledged there was a short moment after his collision with the plaintiff when Borgas was turning his head to the front and exiting his car and during which the plaintiff’s car was out of his sight.   Even so, it is unrealistic and highly improbable that, within that time, the plaintiff could have driven onwards and into collision with a bollard or bollards and to have then reversed his car back to its earlier position within a few metres of the third defendant’s car.  And there would have been no obvious reason for him to perform such a manoeuvre, anyway.

18. Finally, it would be surprising, indeed, had there been that second collision, that the plaintiff would not have complained of it to Borgas and shown him the alleged damage.

19. For all these reasons, I remain quite unsatisfied that there was any secondary collision between the plaintiff’s car and the bollard or bollards.

    Other Matters Touching Upon The Plaintiff’s Credit

20. I have so far discussed the plaintiff’s evidence touching upon the circumstances of each of the three accidents and their immediate aftermath.  I will now deal with his evidence with respect to more general matters.

    4.1As I have previously observed, the fact that there might be an inconsistency between a party’s evidence and a history, purportedly given by that party to a doctor or a third party, should not necessarily tell against the credit of that person.  The doctor or third party may have a lesser interest in the precise circumstances which preceded or caused a particular injury and, as well, there can be problems of communication or understanding affecting what history is recorded or how it is written up. 

    Having said that, if it emerges in evidence that a particular doctor or third party is a careful note‑taker, is in the habit of recording particular remarks verbatim or has an independent memory of what was said, then a court might more carefully scrutinise such inconsistencies, the more so if they are similar or numerous.

    Here, I have already commented upon the conflicts between his evidence as to the circumstances of the first accident and the history of it taken by Dr Eriksen and his evidence as to the second accident and Professor Goldney’s history.  I was satisfied from their evidence that both Dr Eriksen and Professor Goldney were careful and contemporaneous note‑takers and, in certain respects, the matters recorded in their notes were separately recorded by others.  Those matters reflect poorly on the plaintiff’s credit.

    The plaintiff told Dr Guirguis, at Exhibit P1.33, that he developed morning neck pain and stiffness a few days after the first accident and that it deteriorated from that point.  In court, he said the neck pain was there immediately following the accident and he felt it at work on that very day. 

    He further told Dr Guirguis that he finished the painting job he was then involved in within a couple of days, yet on his own account it was six or seven days afterwards.

    These are small matters in themselves, but again illustrative of the repeated conflicts between his evidence and earlier histories provided to others.

    4.2There is then the evidence touching upon the plaintiff’s claimed fall from a ladder in 2004: 

    4.2.1Dr Alexander’s practice notes disclose that the plaintiff reported to him, on 20 August 2004, that he had had an accident at home on 18 August 2004 when he fell from a ladder whilst painting.  On the plaintiff’s evidence, that incident occurred not at his home, but at premises at Semaphore.  Given that doctor’s concession that he is a poor note‑taker, I am not inclined to take too strong a view about that conflict.

    4.2.2His Further Affidavit of Loss sworn on 14 September 2004 and, in particular, its paragraph D.1, describes a ladder fall occurring on 14 March 2004.  In evidence, he said that that was in fact the ladder fall reported to Dr Alexander and it had not occurred in March, as the affidavit suggested, but just one month before he had sworn that affidavit.  The error in the affidavit was not his; he had not read the document when he signed it, although he accepted responsibility for it. 

    The description in that paragraph D.1 reads:  “I climbed up the ladder to the manhole and as I was coming down, my right shoulder gave way and I fell off the ladder”. 

    He was challenged over the detail of that description in the face of other recorded histories.  He responded that his right shoulder giving way was part of the reason that he fell, that he had in fact overbalanced when on the ladder and had relied upon his injured right shoulder to steady him, but it had not, hence he had fallen.  That explanation departed somewhat from what was set out in the Further Affidavit of Loss.

    4.2.3It was then put to him that he had reported none of that to The Queen Elizabeth Hospital and had instead told them (Ex. D8) that he had been suffering from dizziness on and off, because of a head injury, and had fallen because he had “felt out of” balance; that is, that he had said nothing to them about his right shoulder giving way.

    He responded that he believed he had told the hospital about his right shoulder contributing to the fall.  The description he gave them was the same one he had given in court:  even if the hospital notes did not record it. 

    He denied that he had sought to implicate his right shoulder in the fall in order to link its consequences with the second accident.

    4.2.4The ambulance officers’ report (Ex. D8.158) contains a history that the plaintiff could not actually recall the incident itself but that he remembered everything else; he had fallen about five metres from the ladder.  It makes no mention of his right shoulder somehow being involved in the incident.  The plaintiff was challenged over that, given his rather more detailed account given in court.  He explained the suggested discrepancy in his memory thus:  “I recall falling – like, what caused me to fall, but I can’t recall what happened when I hit the ground exactly and whatnot.  I can’t have the greatest recollections of exactly what happened to me when I hit the ground, because it happened to me that quickly then” (T/C 438).

    4.2.5Generally, I found his evidence on this whole topic to be inconsistent, prevaricating, unconvincing and, indeed, contrived.

    4.3There was a good deal of mixed and conflicting evidence relating to the plaintiff’s complaints about his shoulder injury or injuries:

    4.3.1in his pleading in his Amended Statement of Claim (paragraph 19.2) that he had hurt his left shoulder in the first accident.  When that was put to him, he said he had “no recollection of any major accident – injury” to his shoulder in that accident (T/C 452).  He might have reported that he had knocked it.

    That answer was pursued.  He said he had no recollection of telling his solicitors that he had suffered an injury to both shoulders in the first accident.

    Even so, it appeared that, quite apart from the impugned pleading, his solicitors had asserted as much when writing to Dr Alexander for a medical report and that Dr Alexander had himself noted a complaint of pain in the plaintiff’s shoulders (Ex. D1.2).

    4.3.2That evidence must be seen alongside his concession that when he had been referred to Dr Waters about his right shoulder, he may have told Waters that he had pain in his right shoulder after the first accident and he would have said that because he had “complaints with my neck and that was connected to my shoulder” (T/C 337) (quoted at length earlier).

    4.3.3There was then his unsatisfactory evidence relating to attendances on Drs Beckinsale and Alexander concerning his right shoulder following the second accident. I have commented upon this evidence elsewhere. 

    4.3.4Separately from this, it appeared the plaintiff had informed Dr Lukacs that after the first accident he had suffered pain in his right shoulder and neck (Ex. D1.46 and T/C 417).

    4.3.5Finally, on this topic, there are the Centrelink review documents completed respectively by the plaintiff and Dr Alexander (Ex. P14 and Ex. P15).

    In the latter document, the plaintiff asserts that he cannot undertake rehabilitation because of headaches, neck and back pain.  There is no mention of his shoulder condition there, nor in the associated report of Dr Alexander, although Dr Alexander did say he was not inclined to provide full diagnoses in those sorts of documents.

    4.3.6The evidence as to whether, when and how the plaintiff suffered any injury to his right shoulder was, thus, conflicting, unconvincing and poorly corroborated.

    4.4In the plaintiff’s solicitors’ letter of instruction to Atkinson Commercial Services relating to the investigation of the first accident, it was described thus (Ex. P20):

    Our client was travelling along Portrush Road at approximately 40 km/h in a line of traffic.  The car in front of him stopped suddenly, our client braked and was hit forcibly from behind by a Ford, forcing his vehicle into the vehicle in front.  We are instructed that their collisions were only a few of a huge number of chain collisions occurring at that moment in the stream of traffic proceeding along Portrush Road.    

    That account is not consistent with his evidence.  Whilst that specific inconsistency was not put to him, a similar description of the event recorded by Dr Alexander was, and he denied it, saying Dr Alexander must have recorded it incorrectly.

    The coincidence of those similar recorded accounts and their conflict with his evidence, effectively denying the accuracy of either, further weakens his credibility.

    4.5In his Further Affidavit of Loss, there is no mention of an incident which he said in evidence had occurred on 6 November 2003, when he had slipped on a wet floor at home, hit his head and lost consciousness.  He had in consequence been admitted to The Queen Elizabeth Hospital. 

    He was challenged over that.  His response was that he had not known that it had to be mentioned in his affidavit, that it was just an error on his part and he thought he had explained to his solicitors all that was important.

    Again, as with police and doctors’ reports, he retreated to the position that he had disclosed everything and that his recorders had failed to capture it all.

    4.6There are then the Health Insurance Commission forms which were submitted in conjunction with the plaintiff’s claim (Ex. D9).  Originally, they had included claims for two consultations with Dr Alexander on 13 December 1999 and 27 January 2000, but the plaintiff then withdrew these, conceding, as he was obliged to do, that they did not relate to the first accident.  Not much turns on that, but in that same document he had not at first sought to recover the cost of his attendances on the psychiatrist Dr Lukacs, the inference plainly being that they were not related to his claims.  He subsequently corrected himself as to these and said that his decision to omit the Lukacs fees from the claim was “not quite correct … I’ve made that mistake” (T/C 347) because, in fact, he had discussed with Dr Lukacs things involved in the “accident”.  Even so, he also conceded that the focus of his consultations with Dr Lukacs was not upon his accidents but upon his alcoholism.

    4.7There was then the curious piece of evidence where he described having become depressed over the death of his uncle in late 2002.  That was not a matter of particular consequence in the overall dispute but when his mother was called to give evidence, she said that he had only one uncle and he was still alive.  Otherwise, he had a great‑uncle to whom he was close who had died quite a few years ago.

    4.8The plaintiff’s evidence as to his problems with binge drinking and alcoholism was unsatisfactory.  He told the court that he had had no problems with it since the year 2002, but plainly, as Exhibit D8 discloses, he had had an admission to The Queen Elizabeth Hospital in May 2003 for that problem.  Otherwise, it emerged he had had several other admissions and frequent medical treatment for it, yet I heard scant evidence about the impact of what has clearly been a longstanding mental and physical problem for him, on his lifestyle and earning capacity.

    4.9The plaintiff gave evidence about the income he had earned in house painting since the time of the first accident.  It appeared that he had not, until some few months before trial, filed tax returns for those years.  Ultimately, he had done so, at his solicitors’ suggestion, but it emerged in the course of cross‑examination that they had been based on estimates of income only, as he retained no supporting documentation, and that he was really quite unable to be specific about the moneys he had earned in any particular year.  Further to that, the contents of his returns for the 2000 and 2002 years conflicted with the evidence of Mrs Thomas, who spoke of the moneys that she had paid him to do house painting in each of those years.  In consequence of that cross‑examination, he said in re‑examination that he would be returning to his accountant to correct his returns.

    4.10 The accuracy of those estimates might of themselves have been of little consequence, but there was then the curious evidence relating to his work receipts, Exhibits D13 and D14.  They were, on his account, receipts provided to people for payments, for artwork in two instances and, in the other, for house painting.  It was apparent that all three receipts had been altered.  In their altered form, they purported to be for works carried out prior to the time of the first accident. 

    He was cross‑examined closely about the alterations, which appeared to change the date of each receipt from the year 2000 to the year 1999.  It was suggested to him that he had altered each of them with a view to suggesting the income had been received not in 2000, but prior to the first accident.  He rejected that challenge, but appeared to acknowledge that each document had been changed and, indeed, was not prepared to deny that he might have altered them himself.  He could not think why that might have occurred.  He commented:  “I haven’t amended any receipts knowingly” (T/C 865) and “I haven’t amended that receipt with any prior idea to change anything … There is a host of reasons why that could have happened, but I swear I haven’t tried to change …” (T/C 866).  Again, at T/C 867:  “Well, because for some reason that looks like it’s been changed and I have got no recollection of purposely – because I had receipts for and dates from when the jobs were done.  Like, I couldn’t change anything, I couldn’t change any facts or anything”.

    After making those observations, he appeared to concede that the receipts did in fact relate to the 2000 income year.

    That conduct and his explanation for it did nothing to enliven my confidence in his credibility.

    4.11It emerged that in support of his special damages claim, the plaintiff had provided his solicitors with receipts relating to Bowen therapy provided to him by one Naomi Hutchison.  In the course of cross‑examination, however, he said that he had been careless about these and that they did not in fact relate to his claim – this notwithstanding that he appears to have told Dr Cohen they were part of his treatment, recommended by The Queen Elizabeth Hospital (see Ex. P1.20). 

    One particular receipt of 15 December 1999 (Ex. D6) was in an amount of $146 and purported to be for five treatments.  In re‑examination, he said that he had altered its total from $46 to $146 and had added to it a reference to there being five treatments.  He had done that “when my tax was getting done” (T/C 559) and he had done it to remind himself that he owed Hutchison for five such treatments in the past twelve months.  He was then asked why he had made those alterations on a receipt dated 15 December 1999 and he answered (T/C 559/560):

    A.Because I thought that that wasn’t relevant to any of this case and I wanted a record of how much I owed her.

    Q.Why did you write it on that cash receipt, rather than on another piece of paper.

    A.Just to keep it, to remind me what I owed her.

    Q.Did you mean for that cash receipt to be included in the documents provided to your solicitors to the court.

    A.No.  

    He further conceded that he had altered another receipt of hers dated 18 October 2003 to increase its dollar value from $15 to $45.

    His explanations with respect to those receipts were as nonsensical as they were unbelievable. 

    As with his alteration of work receipts, the only plausible explanation for his conduct was that at particular stages he sought to mislead his solicitors and the defendants as to his pre‑accident income and his special damages.  The amounts involved were small, but his responses to the challenges about them were fumbling and, as I have said, unbelievable.

    4.12Finally, there is his conduct in relation to other alleged incidents post‑dating the third accident.  I have already made mention of the alleged slip on a wet floor on 6 November 2003 (which was not mentioned in his Further Affidavit of Loss) and a ladder fall of 18 August 2004 (which was mentioned, albeit wrongly dated and described).  As well, he described in the Further Affidavit of Loss an incident on 27 March 2004 when he tripped on the linoleum in his kitchen.

    It then emerged in the course of evidence that he had been involved in yet another accident at home on 4 March 2004.  He had not described it in his affidavit, he said, because he thought it was minor.   He said he had been reversing his vehicle out of his rented premises.  The front gate had fallen or partly fallen and was in his way.  He had stopped and got out to fix it, whereupon his car had rolled into a pothole and pinned him against the letterbox.  He said it was a pretty minor accident and he had suffered no serious injury.  He could not remember losing consciousness.  He was not sure whether he had gone to The Queen Elizabeth Hospital about it but he had gone to see Dr Turner.  He then agreed he had told Dr Turner that he had been knocked out as a result of it.

    In cross‑examination, he agreed that he was then in dispute with his landlord about rental matters and had consulted different solicitors about the three accidents which were connected with his tenancy:  the incident at the gate, the slip on the floor and the trip on loose linoleum.  He hesitated to say that he was actually bringing claims in respect of them.  On his account, he had only taken advice about them, albeit it appeared that his solicitors had written to Dr Turner for a report on his injuries. 

    He had gone to other solicitors about these three matters because they practised near his house, but he had not told his current solicitors about them.

    His evidence and his explanations for not disclosing the accidents in his Further Affidavit of Loss was, again, unconvincing and reflected poorly on his reliability.

    FINDINGS AS TO LIABILITY

1. For all the above reasons, I have no confidence at all in the reliability of the plaintiff’s evidence relating to any of the three alleged incidents.

2. I will deal with them in turn.

   5.1As to the first accident, the plaintiff has not satisfied me on the balance of probabilities that his vehicle suffered any rear‑end impact prior to his colliding with Churchett’s vehicle. 

   I am, however, satisfied and find that he did collide with the rear of Mr Churchett’s vehicle and that that collision was wholly as a result of his own negligence and not that of the Nominal Defendant or, indeed, any other party.  I am not satisfied on the evidence that Mr Churchett in any way caused or contributed to that collision, nor has such been pleaded.

   Further to that and in any event, had I been satisfied that the accident had been caused by the alleged unknown driver, I would not have been satisfied that the plaintiff carried out due enquiry and search.  He did nothing at all about the alleged incident until he saw his doctor on 29 January, then his solicitor four days later.  He did not make any report to the police until 1 February 2000 and, even then, told them nothing about the alleged involvement of an unidentified vehicle. 

   After that time, it would seem that it was not until early May 2000 that investigators were instructed to make enquiries as to the involvement of an alleged third party.  An advertisement seeking witnesses was not then published until 15 January 2001, some 13 months after the accident.  The advertisement did not contain particulars relating to the asserted time of day of the collision, nor the gender of the unknown driver. 

   In circumstances where there was an alleged chain collision in heavy morning traffic, it seems to me that there is every reason why prompt attempts should be made to identify the unknown driver and, in particular, by the publication of advertisements.  Had the incident occurred as alleged, there would likely have been a number of people in both lanes of traffic potentially able to say something about it.  That sort of accident is not uncommon, but the likelihood of the same persons remembering it and relating it to that particular date, some 13 months later, seems to me to be quite remote.  Further to that, prompt notification of the accident to the police and a proper description of it might have improved the prospect of the unknown driver being identified, but that did not occur either. 

   It is unnecessary for me to decide it, but had I been asked to, I would not likely have been satisfied that due enquiry and search had been undertaken.

   5.2As to the second accident, again, for the reasons set out above, I simply do not accept the plaintiff’s account of it and I am not satisfied that it occurred in the manner he alleged.

   There is the undoubted fact that the mirror shroud of the Ford was dislodged at some time or other but, accepting for the moment that it was dislodged on that day, I am not satisfied that the second defendant was in any manner responsible for it or, indeed, that his bus was anywhere in the vicinity at the time it happened.  Perhaps another bus was responsible, perhaps another vehicle was responsible:  it is unnecessary for me to determine that.  Even if there had been such a collision, however, I am not satisfied that it caused the plaintiff to be thrown or to propel himself in the manner he has described, so as to fall to the ground.

   5.3As to the third accident, it is admitted and I am satisfied that there was an initial collision between the vehicles of the plaintiff and the third defendant in the shopping centre car‑park, but I am not satisfied that there was a subsequent and resulting collision between the plaintiff’s vehicle and bollards in that car‑park. 

   Further to that, I find that the vehicular collision was a minor one, indeed, and so insignificant as to have caused no observable damage to either vehicle.  On this issue, too, I much prefer the evidence of the third defendant and I reject the plaintiff’s claim that there was such damage.  He adduced no independent evidence of it, whether by way of repair accounts, photographs and the like, yet, perversely, on his account he took the trouble to photographically record the alleged front‑end damage.   Otherwise, the third defendant presented to me as a witness of truth, in the particular circumstances he had little to gain by misdescribing the nature of the damage and, indeed, by virtue of his trade, he had a measure of expertise in gauging damage.

   The absence of any observable damage also makes nonsense of the plaintiff’s assertions as to the respective speeds of the vehicles prior to the moment of collision.

   Even so, the third defendant admits the accident was caused as a result of his negligence and, indeed, on the evidence I am satisfied that it was.  The third defendant has, however, pleaded that the plaintiff by his own neglect caused or contributed to the occurrence of that incident.  He has not, however, been able to adduce any evidence as to the plaintiff’s manner of driving prior to that collision.  He did not see it and I am entirely dependent on the plaintiff’s own account of what occurred.  Whilst I have already expressed strong misgivings about his reliability, there is no other evidence as to what occurred and I am thus satisfied that he was entering the car‑park at a relatively slow speed of 10 to 15 kilometres per hour when he saw the third defendant’s vehicle reversing into his path.  I prefer the evidence of Mr Borgas that he was reversing at a normal speed and not at a high speed, as the plaintiff says, but even so I am satisfied that the plaintiff was unable to avoid the resulting collision between the two cars.  I am thus not persuaded that the plaintiff caused or contributed to that collision by his own negligence.

   QUANTUM

3. As to the first accident, the plaintiff’s claim rested solely upon the alleged negligence of the Nominal Defendant.  There was no assertion that Mr Churchett was in any measure responsible for the plaintiff’s alleged injuries and loss.  Having found that I am not satisfied there was any collision from behind the plaintiff’s motor vehicle involving the Nominal Defendant, there is no occasion to assess damages with respect to this accident, and I will not do so.

4. As to the second accident, a similar position obtains.  The plaintiff’s claim rested upon the assertion that the bus driver, Mr Fraser, caused his bus to collide with the vehicle on which the plaintiff was leaning.  I have found that I am not satisfied that any such incident occurred involving a bus driven by Mr Fraser.  It is not a situation where the dispute is one as to negligence or apportionment of liability and, accordingly, I will not assess damages for the second accident.

5. Otherwise, given my finding that the third defendant was wholly responsible for the third accident, I am obliged to make findings as to what, if any, injuries the plaintiff suffered as a result of it and to assess damages for those injuries.

6. The plaintiff pleads that in consequence of the third accident, he aggravated his pre‑existing neck injury with a consequential increase in the frequency and severity of headaches, injured his right shoulder and his thoracic spine, and aggravated his levels of stress, irritability and depression.

7. I will deal with those alleged injuries in turn.

   Cervical and thoracic spinal injuries and headaches

8. Whilst I am not satisfied that the first and second accidents occurred in the manner described by him, I am satisfied that, in the first accident, he collided with a vehicle in front of him and, further, that there was an incident of some kind which occurred at about the time of the second alleged accident and that both of these incidents also caused soft tissue damage to the plaintiff’s neck with resulting headaches.  That conclusion conforms with the evidence of Drs Cohen and Eriksen.

9. I am further satisfied, having particular regard to the opinions of those doctors, that, in the third accident, the plaintiff aggravated that soft tissue damage to his neck, suffered soft tissue injury to his upper back and that these injuries exacerbated his headache problems.

10. In making findings as to the extent of each neck injury and its contribution to the plaintiff’s ultimate level of injury, I have considered the evidence of both the plaintiff and the medical experts.

11. As to the first accident, I accept that he complained to Mrs Thomas on that same day of a stiff neck and shoulder and I am satisfied that he suffered some measure of pain to those parts of his body, but I am not persuaded that it was other than very minimal pain and discomfort and, indeed, I observe that over the next several days, he continued with and completed his painting contract work with her and told her, on his last day, that he was no longer suffering stiffness or soreness.  It is significant, too, that one week after the accident he saw Dr Alexander and made no complaint at all about either his neck or his shoulder.

12. I accept his evidence, corroborated by his mother, that when he returned to Broken Hill at Christmas that year, he had and complained of neck soreness and that he had hot and cold packs applied to relieve this, but I am not persuaded that that discomfort was of any real significance.  He did not consult a doctor there and even upon his return to Adelaide, did not see Dr Alexander until 29 January 2000.

13. On his own account, after he completed Mrs Thomas’ contract, he was unable to carry out house painting again, yet Dr Alexander’s notes suggest something quite different and record as of 27 January that he has a job and “painting going well”.  It was suggested in evidence that that was a reference to the plaintiff’s “artistic” painting, but the reference to his having a job is revealing and I am not disposed to find that he was not working, or able to work, in the period prior to 27 January 2000.

14. Dr Alexander’s notes otherwise record that he saw the plaintiff four times after 29 January 2000 and prior to the occurrence of the second accident.  On the first occasion, the plaintiff gave a brief description of the accident and complained of severe neck pain.  There were two sparsely noted consultations after that and it was not until 3 March in that year that the plaintiff gave a somewhat more elaborate description of the chain collision and asserted he was hit from behind and suffered a “double whiplash, concussion and neck and headaches”.

15. In a report of 7 March 2000, made following the last of those consultations, Dr Alexander diagnosed a “quite severe whiplash type injury” and considered him unfit for any work for a period of three months.  

16. In his evidence, Dr Alexander described the plaintiff’s history and, in particular, his chronic alcoholism and the treatment he had administered for associated paranoid ideation.  He then spoke of his findings on 29 January and his awareness that the plaintiff was by then seeing a Mr Rick Montiadis, a person who provided massage, chiropractic, physiotherapy and acupuncture. 

17. I found Dr Alexander’s evidence to be of somewhat limited assistance.  His notes were, on his own admission, poorly kept and limited in their content.  He had no independent memory of matters and when confronted with significant omissions in them potentially conflicting with the plaintiff’s evidence, he seemed to me to be overly prepared to accommodate his patient and to attribute them to his poor note‑taking. 

18. With respect to the first accident, Dr Cohen, in his report of 5 May 2000, commented:  “He had suffered a neck complaint and headaches following that accident, together with some blurriness of vision”.  He went on:  “…I understand those complaints had been improving prior to the more recent incident” (the latter, of course, being the second accident).   

19. Dr Guirguis reported on 23 May 2000 that the plaintiff, after undertaking physiotherapy for his first accident, reported some improvement “with the neck pain and headaches being less intense and less frequent” and that “Prior to the bus incident he had a trial returning to painting, helping some of his colleagues, and was only able to work for half a day at a time, experiencing difficulty performing any work above shoulder or head level”.

20. For his part, Dr Eriksen considered the plaintiff suffered soft tissue injuries in the first accident, to a minor or moderate degree, and that he could be expected to have recovered from them over the three months leading to the second accident.

21. The plaintiff then asserted that, in consequence of the second accident, he aggravated the neck injury sustained in the first accident, with a resultant increase in headaches, as well as suffering other injuries.

22. On the evening of the second accident, he had severe pain in his right shoulder, pain in his neck and right foot and was nauseous and vomiting.  His neck pain was a “lot more chronic” than as a result of the first accident and his headaches were worse than previously.

23. At the time, he was living in the north‑eastern suburbs and on the following day went to see a local general practitioner, Dr Beckinsale, because he did not feel well enough to drive to see Dr Alexander at Hendon.  He complained of neck and right shoulder pain, headaches and vomiting.

24. According to Dr Beckinsale’s report, P1.41: 

    On examination there was some tenderness over the right shoulder but little else of significance … He was advised to undergo physiotherapy and use anti-inflammatory drugs if needed.

    In conclusion, he suffered from soft tissue injuries from the incident.  These should spontaneously resolve with minimal intervention.

25. That appears to have been his only consultation with Dr Beckinsale, but he was then given the name of a physiotherapist and, on his account, saw that person, Janet Baines, on twelve to fifteen occasions afterwards.  She helped ease the pain in his neck and shoulder. 

26. He said his shoulder and neck were the major residual problems from that second accident and the extent to which they bothered him, depended upon his work.  In particular, in the period from May to July 2000, he could not paint or carry out household chores, his sleep was affected and he failed when he tried to carry out house‑painting work, notwithstanding two half‑day attempts.

27. His neck then improved in the period up to the third accident, but occasionally his shoulder pain would affect his neck and give him headaches.  His right shoulder did not get any better, except for some mild relief he achieved from ultrasound.

28. By the time of the third accident, his headaches were episodic, occurring weekly but lasting longer.  They were far worse after the second accident than after the first. 

29. As to the third accident, I have already found that the only collision in which the plaintiff was then involved was with the third defendant’s vehicle and that it was a very minor one.  Nevertheless, I am satisfied and find that the plaintiff immediately complained of a sore neck and went to Modbury Public Hospital, where a diagnosis was made of a soft tissue injury to his neck.  He was advised to use analgesics and to rest.  He was not subsequently reviewed at the hospital, but the Director of the Emergency Department reported (P1.42):

    … given the nature of the physical injury assessed above, the normal expectation is for a good prognosis with little likelihood of any residual or long term disability.  Extended medical or other treatment is unlikely to be warranted.  He should look forward to resuming his normal occupational duties.  (my emphasis)

30. It would appear that the plaintiff next sought medical attention with respect to the third accident on 20 October 2000, when he went to see Dr Alexander.  He then complained of a whipping pain in his neck and his back as a result of that accident.  On examination, Dr Alexander diagnosed a whiplash‑type injury and ordered x‑rays.  These revealed no obvious abnormalities.  Later, in November, he reviewed them and thought they indicated that the odontoid peg was misaligned.

31. Surprisingly, Dr Alexander did not seek to compare those x‑rays with those he had obtained on 31 January 2000. He did, however, continue to see the plaintiff, who continued to complain of whiplash symptoms and headaches, through to the end of 2003.  It would seem that after that time, his partner Dr Turner saw the plaintiff about other matters. 

32. In the course of his evidence, Dr Alexander said, and indeed it appears from his notes, that many of the plaintiff’s consultations were for the express purpose of obtaining financial support from Centrelink and, as well, it is obvious that many related to other matters altogether, in particular to the plaintiff’s alcoholism and its associated problems.

33. Dr Cohen saw the plaintiff in December 2000, some three months after the third accident, noting the plaintiff had seen his general practitioner in the meantime.  The plaintiff complained to him of having suffered headaches almost continuously for a month after the third accident but said their regularity then abated to three times per week.  He also complained of balance disturbance and right‑sided neck pain on a level similar to that he experienced immediately after the first accident.  He further reported that the plaintiff had developed pain in the interscapular region, constant for the first month after the accident but gradually resolving. 

34. On examination of the plaintiff’s neck, he noted tenderness but “a moderate range of movements with only quite a small restriction.  His presentation, however, is a subjective one”.  He also thought the thoracic spine had a “moderately good range of movements” and that the plaintiff’s complaint was consistent with a soft tissue injury to that area.  He deferred his assessment of the impact of those neck and back injuries, but thought that the plaintiff should not undertake painting or decorating for the time being. 

35. He reported again on 14 November 2003, having seen Mr McCrae that month.  He noted he had been carrying out painting work over the past three months, but on a limited basis.  He noted a complaint of continuing right‑sided neck pain and aggravation of the plaintiff’s thoracic spine with activity. 

36. On examination, he thought there was a slight restriction in rotation and flexion of the plaintiff’s cervical spine and mild tenderness in the upper thoracic spine, but with satisfactory rotation and flexion.  He thought, overall, there was a 7.5 % impairment of the plaintiff’s cervical spine and neck and 4% impairment of his thoracic spine and upper back.

37. He saw the plaintiff again in October 2004.  His observation of neck symptoms was similar, but he thought the thoracic spine had improved and there was no tenderness there. 

38. Dr Guirguis saw the plaintiff for a second time in February 2001 and noted the occurrence of the third accident and the plaintiff’s complaint of neck pain and fresh headaches, as well as mid‑thoracic pain.  He was, by then, anxious and agitated and on examination Dr Guirguis noted restricted neck mobility and tenderness in the thoracic area.  He was of the view that the plaintiff had re‑aggravated his neck condition, but there had not been a great deal of change in its pathology since the previous accidents and the prognosis was for a slowly improving soft tissue injury.

39. He proposed to review the thoracic problem in a later report but no further appointment was made and his evidence focussed principally on the plaintiff’s complaint of right shoulder injury resulting from the second accident.

40. Finally, Dr Eriksen reported on the third accident, noting that the plaintiff afterwards complained of an increased degree of neck and shoulder pain and other spinal pain.  His condition had not improved in five months and had in fact worsened.  As of February 2001, he was continuing to experience pain in his neck, at the base of his skull and mid‑back pain between the shoulder blades.  At times it was very severe and disturbing his sleep.  The plaintiff also complained of pain at the extreme ranges of movement of his neck and shoulder.

1. Dr Eriksen considered that he should by then have recovered from what had been essentially soft tissue injuries, that his ability to lead a normal life was no longer impaired and that his condition was more likely related to stress and anxiety problems.  He noted a history of alcoholism.  He expected any soft tissue injuries would resolve within three months of that time.  He deferred his final assessment.

2. He reported again in March 2003, noting the plaintiff was complaining of headaches associated with neck pain, made worse by particular activities.  He thought the anxiety state had improved.  He conducted various tests and concluded that the plaintiff had suffered a sprain injury of the right side of the cervical spine in the three accidents and that he had had secondary stress and anxiety factors resulting from this and his shoulder injury.  But for the latter, he would have expected a complete recovery.

3. I have considered the plaintiff’s evidence as to neck injury and headaches along with those medical opinions.  In essence, Dr Cohen agreed with Dr Eriksen that the neck injury in the first accident was a soft tissue one, but he thought it was more significant than that occasioned by the other accidents.  Overall, he thought the plaintiff was suffering from a 7.5% disability to his neck and he apportioned responsibility for it, as to the first accident, 80%, the balance being due to the second and third accidents in equal measure, likewise with the headaches.   He considered there was a 4% impairment of the plaintiff’s thoracic spine.

4. Dr Eriksen concluded that, in consequence of all three accidents, the plaintiff had suffered the same 7.5% overall loss of cervical or upper spinal function, but considered that they had contributed in equal measure to that outcome. 

5. Of course, both of those opinions were based on dynamics for the first and second accidents which I have not found proved.

6. Dr Guirguis’ evidence was of limited assistance here as it tended to focus on the plaintiff’s shoulder injuries.  Nonetheless, he, too, considered the third neck injury was a soft tissue one and of limited impact.

7. Having considered all the evidence, I am satisfied and find that the plaintiff did, in consequence of the first accident, suffer from pain and stiffness in his cervical spine with a resulting restriction in his range of movements.  I discount Dr Cohen’s opinion as to the significance of the first accident in this pathology, however, because I find that the only relevant collision there was with the back of Mr Churchett’s car.  I take particular account of the plaintiff’s own description of his neck symptoms, which was to the effect that they were much worse after the second incident.  Dr Alexander records as much, too, and the plaintiff then goes on to say that these symptoms were further aggravated in the third accident.

8. His account and Dr Alexander’s opinion correspond rather more closely with Dr Eriksen’s assessment that each incident contributed equally to the overall disability and it is that opinion which I accept for the purposes of this assessment.

9. I find that the neck and head injuries suffered in each of the three accidents contributed in equal measure to his final presentation and were of a relatively minor nature.  So much is reflected in the low level of overall disability of 7.5%, upon which Drs Cohen and Eriksen agreed. 

10. I am further satisfied and find, on the basis of Dr Cohen’s opinion, that in the third accident, the plaintiff suffered an injury to his thoracic spine which initially disabled him to the extent of 4% but which had substantially resolved to a low‑grade pain on exertion by October 2004.  I will make due allowance for it. 

11. Whilst, on the plaintiff’s account, he continues to experience aggravation of his neck pain and some headaches when carrying out certain activities, I am satisfied that these symptoms are mild and that he has no significant disability.

    Right shoulder

12. Again, the extent of this asserted injury is complicated by the plaintiff’s claim of having suffered a right shoulder injury in the second accident and by other evidence tending to suggest he also injured that shoulder in the first accident.

13. I have discussed that evidence at length in considering questions of credit and I will not repeat it, but it is enough to say that the plaintiff’s case on this matter is both confusing and, indeed, unconvincing.  It moves from his concession that he might have complained to Dr Waters of a right shoulder injury following the first accident, to an assertion in his solicitors’ letter to Dr Alexander that he injured both shoulders in that accident, to a claim made to Dr Lukacs of having injured a shoulder in it, to a plea in his Amended Statement of Claim (a plea largely discounted by him in evidence) that he injured his left shoulder in that accident.

14. There is then his assertion that he fell on and injured his right shoulder in the second accident and his complaint of right shoulder pain to Dr Beckinsale.  Perversely then, he rejected Dr Beckinsale’s recommendation that he have it x‑rayed and instead saw Dr Alexander three weeks later. Even so, there is a complete absence, in Dr Alexander’s notes, of any complaint by the plaintiff of anything to do with his right shoulder.  He maintained at trial that he told Dr Alexander about his shoulder; indeed, that he suggested that he deflected Dr Beckinsale from taking x‑rays because he wanted Dr Alexander to arrange them, yet no x‑rays were ever undertaken by either. 

15. Finally, then he complains that he twice strained that shoulder in the third accident (following each separate impact).  I have, of course, already found there was no second impact.

16. I then note that he went to Modbury Hospital immediately after the third accident and the report of Dr Markwick (Exhibit P1.42) dealing with that presentation refers to neck stiffness and a diagnosis of a neck soft tissue injury.  It makes no mention of any shoulder complaint.

17. His next medical consultation after then appears to have been with Dr Alexander on 20 October 2000.  He complained of neck and upper back symptoms but Dr Alexander’s notes, both then and on subsequent visits, make no mention of a shoulder complaint or injury.  The only diagnosis is of a “whiplash” sprain to the neck and, indeed, as I have said, most later consultations related to Centrelink certifications for this injury.  It is not until 15 months later, on 20 December 2001, that there is a reference in them to a complaint of shoulder pain and that is followed by a further complaint and diagnosis of a “depressed” shoulder on 12 February 2002.  He was referred to The Queen Elizabeth Hospital for investigation of this, but the report he later obtained was not tendered, nor was any evidence called from the doctor concerned.  Even so, there is a reference on page 79 of Exhibit D8 to the plaintiff complaining at The Queen Elizabeth Hospital in August 2002 of shoulder pain from three motor vehicle accidents. 

18. In his consultation with Dr Cohen on 4 December 2000, the plaintiff speaks of the third accident and how it aggravated his neck pain and caused upper back pain.  He says nothing about injuring his right shoulder, but relates how the shoulder had troubled him when he attempted to paint before that accident.  He tells Cohen that the shoulder is “much the same as before” (that is, as I take it, “before” the third accident).  At page 5 of his report of 4 December 2000 (Ex. P1.16), Dr Cohen reports:

    He does have a continuing complaint in the right shoulder, which has not been affected in this accident.  (my emphasis)

19. The plaintiff saw Dr Guirguis on 5 February 2001, but simply complained that following the third accident, his neck was aggravated and he had mid‑thoracic pain.  Dr Guirguis had seen him about his right shoulder following the second accident and reported on 13 February 2001 (Ex. P1.37) that it had not changed significantly.

20. Then, perversely, he reports to Dr Eriksen (Ex. D1.15) that in consequence of the third accident, “he experienced an increased degree of neck and shoulder pain …” (my emphasis) and as well to Dr Lukacs that he aggravated his right shoulder in the third accident (Ex. D1.47).

21. In the face of that conflicting evidence and my own conclusions as to the plaintiff’s credibility, I am not satisfied he injured his right shoulder in any manner in consequence of the third accident.  The only vehicular impact was, as I have found, a very slight one, he did not complain of any shoulder injury afterwards when he went to Modbury Hospital, nor did he complain of it in that connection to Dr Alexander, then or at any time later.  He disavowed its connection to Dr Cohen and then 18 months after the accident suggested the contrary to Dr Eriksen.  Dr Eriksen’s opinion as to causation is, as I find it, based on incorrect assumptions as to the dynamics of the third accident and the state of the plaintiff’s right shoulder after it.

    Stress, irritability and depression

22. The proper evaluation of the plaintiff’s claim to have suffered an increase in stress, irritability and depression in consequence of the third accident, is complicated by these factors:

    (1)my complete lack of confidence in his general credibility;

    (2)the lack of any detailed evidence from him as to the relevance and impact of his acknowledged alcoholism, for which he has plainly received medical and other attention over a long time; 

    (3)the contribution of the first and second accidents to any such conditions;

    (4)the impact of the relationship difficulties in his personal life, referred to in the psychiatric evidence;

    (5)the occurrence of several other accidents requiring hospitalisation;

    (6)his other medical problems – which I have already discussed.

23. As to the second of those matters, it is apparent from The Queen Elizabeth Hospital notes, the psychiatric reports, the evidence and reports of Dr Alexander and, as well, the evidence of the plaintiff himself, that he has had a longstanding problem of alcoholism.  It has been present for at least twenty years, albeit with periods of abstinence, and he has at various times had hospital admissions, treatment and counselling for it. 

24. The detail of that was not provided at trial, but at various times he mentioned to his examiners having had “personal” psychiatric or psychological treatment (Ex. D1.33) and according to Dr Lukacs he received, for these, “general counselling based assistance dealing with lifestyle and circumstance difficulties” (Ex. D1.47).  As well, it is evident from Exhibit D8 and, indeed, from his evidence, that he presented himself to The Queen Elizabeth Hospital concerning his alcohol problems on 8 January 2001, 13 April, 21 July and 26 July 2002, and 15 May 2003.

25. His referral by Dr Alexander to Dr Lukacs in August 2002 was specifically for his alcoholism and not in connection with the three accidents and, indeed, Dr Lukacs noted he then provided “minimal reference to the … accidents”.  He observed (Ex. D1.45):

    At the time of the October 2002 assessment Mr McCrae’s presentation lacked features of a typical psychiatric illness but it was the impression that Mr McCrae’s personality and lifestyle functioning may have had some manic depressive like features.  There had been the lack of age appropriate continuity/consolidation in lifestyle, career and personal relationships.  Mr McCrae presented as an emotionally sensitive artist with a depressive predisposition and a tendency to alcohol use/abuse (which in itself is likely to have generated additional complications).

    In October 2002 it had been Mr McCrae’s interest to attend for further psychiatric assessment/assistance mainly to address his predisposition to alcohol use/abuse.  It had been considered that further assessment may also clarify the nature/extent of Mr McCrae’s depressive predisposition.  Depending on the outcome of further assessment the use of psychotropic medications could be evaluated.  Mr McCrae failed to attend an arranged review assessment appointment.

26. He then reviewed the plaintiff in June 2003, following assessments conducted by Dr Galletly and Professor Goldney.  I will return to his opinion in a moment.

27. Dr Galletly had seen him at his solicitors’ behest on 5 and 17 August 2002.  She described his “vulnerability” to alcohol abuse, but suggested his neck and shoulder injuries and resultant work incapacity had themselves led to binge drinking and resultant hospitalisation.  She thought he had, in consequence, developed an adjustment disorder with depressed mood, which might be alleviated if his physical symptoms could be relieved.

28. She saw him again on 10 December 2003, when he was ready to resume work.  She noted other relationship problems he was having.  She adverted to Professor Goldney’s report prepared in the intervening period and the additional information Professor Goldney had then had at his disposal concerning the plaintiff’s history of alcoholism.  She was of the view that the plaintiff was, by then, no longer suffering any psychiatric condition.

29. Professor Goldney had seen the plaintiff at the defendants’ request on 4 February 2003.  It appeared he had, indeed, obtained more information about the plaintiff’s history of alcoholism.  The plaintiff nevertheless appeared to understate to Professor Goldney the severity of this and contradicted himself as to his then use of medication.  It emerged that some three weeks before the first accident, Dr Alexander had in fact prescribed for him a medication for chronic alcohol dependence.

30. Professor Goldney commented upon the outcome of the three accidents, suggesting that none of them appeared to be of such severity as to lead to a primary psychiatric condition; indeed, they appeared to be “quite trivial in terms of any emotional impact” (Ex. D1.38).  He noted the history of alcoholism predating them and Dr Alexander’s treatment of the plaintiff for paranoia before the first one, a condition Dr Alexander himself had said related to alcohol abuse.  He suggested all this placed Dr Galletly’s opinion in a different perspective and concluded (Ex. D1.39): 

    … if in fact there is significant physical injury which one could attribute to the accident, then there may be some secondary adjustment disorder such as that delineated by Dr. Galletly. However, such an adjustment disorder was not evident at the present assessment interview.

    He went on (following pages) that if, indeed, the plaintiff had an adjustment disorder when he saw Dr Galletly, it was “far more likely that such symptoms were related to ongoing emotional issues, particularly those associated with his long standing propensity to alcohol abuse”.  He concluded (at p.41):  “The psychiatric prognosis is unrelated to the subject accident”.

31. Returning then to Dr Lukacs, the plaintiff saw him again in June 2003 and said he was not attending specifically about the three accidents, but about his life generally.  Dr Lukacs nevertheless took a history of the accidents and their sequelae.  The plaintiff then told him his alcohol use was nil, notwithstanding, as I note, that he had one month earlier, on 15 May 2003, presented at The Queen Elizabeth Hospital for gastritis and alcoholism, but had not waited for treatment.

32. Dr Lukacs was of much the same opinion as Professor Goldney, namely, that the plaintiff was not then suffering from any psychiatric condition related to the accidents, albeit he allowed that some mild symptoms of a pain disorder as part of an adjustment disorder might previously have been present.  None of them had incapacitated him for work. 

33. All in all, I have not been satisfied that in consequence of the three accidents, and more particularly the third accident, the plaintiff has suffered from an adjustment disorder with depressed mood.  In this respect, I prefer the evidence of Dr Lukacs and Professor Goldney over that of Dr Galletly, albeit that Dr Galletly expressed reservations in her final report about her initial conclusion, having had the benefit of further information on the plaintiff’s alcoholism.  The plaintiff may well have had some symptoms of an adjustment disorder at various times after each accident, but I am not satisfied the disorder itself was ever present or that, if it was, it was as a result of any or all of them.

34. None of that is to say that the plaintiff may not have experienced a measure of stress, irritability or despondency in consequence of injuries he suffered in all three accidents and, indeed, I am satisfied he likely did experience some such in consequence of the third accident.  I will make some allowance for it in assessing damages.

    SUMMARY - QUANTUM

35. In summary, then, I find that in consequence of the third accident, the plaintiff suffered injuries to his thoracic spine and neck.  The former caused him pain and discomfort and a level of disability of 4% which gradually resolved over the following four years, save for some residual aching after exertion.  The latter aggravated a pre‑existing condition, effectively elevating the level of his neck disability from 5% to 7.5%.  Both injuries also aggravated a pre‑existing disposition to headaches, which increased in severity and frequency for some time afterwards. 

36. I am satisfied, too, that both of these injuries have for limited periods interfered with his work and lifestyle and have caused him stress, irritability and despondency.

37. I am otherwise not satisfied that in consequence of the third accident, he suffered or aggravated any injury to his right shoulder or that any injuries suffered in that accident led to the onset of an adjustment disorder with depressed mood.

38. As to the impact of those injuries on the plaintiff’s earning capacity, Dr Cohen was of the view that the neck complaint was a small but continuing one and would likely create some difficulties for the plaintiff in looking up during the course of his house‑painting work.  The thoracic complaint was quite  a small one and would cause little difficulty.  Dr Eriksen considered, as of March 2003, that the plaintiff would have a degree of discomfort in performing that work over a short period, but that that would soon improve.

39. There is then the plaintiff’s own evidence that after the third accident, he slowly increased his level of work activity (a claim incidentally not supported by his tax returns) and that from about May 2004 he worked full time, indeed long hours, in house painting.

40. I will return to this matter in a moment.

    Assessment

    -  Non-economic loss

41. I am then called upon to assign a numerical value to the non-economic consequences of the third accident, pursuant to s.24B of the Wrongs Act 1936 as then in force.

42. In doing that, I take account of the time which has elapsed since the third accident and the contribution it made to the plaintiff’s pain and suffering and loss of enjoyment of the amenities of life, including his artistic painting and his sporting activities.  I am less persuaded about the asserted personal, as opposed to financial, impact of his alleged inability to work over that time, for reasons which I will discuss shortly.

43. I fix a numerical value of 5.  The relevant multiplier is $1,580 and damages for non‑economic loss therefore come to $7,900.

    -  Gratuitous services

44. I was not satisfied that any claim was properly made out for gratuitous services attributable to the third accident.  Some evidence was led of his mother visiting him in Adelaide and helping him with his art exhibitions and twice yearly with house management, but I was not satisfied that it specifically related to any consequence of the third accident.  His father, too, spoke of helping him with his painting work in 2004 but, again, the specific nature of that help appeared to bear no relationship to any particular work difficulty arising from the third accident. 

45. I concluded from that evidence that the parental visits to Adelaide were more in the nature of general family support for his work and artistic pursuits and the other difficulties in his life which I have discussed.

    -  Past economic loss

1. As to past economic loss, the evidence as to the plaintiff’s exploitation of his earning capacity, either as an artistic or house painter and whether prior to or since the first accident, was poor indeed and complicated by a number of factors:

   (1)his career choices with respect to house‑painting, football playing, coaching and scouting, his artistic painting and the operation of an art gallery have led him, at various and relevant times, to focus solely upon one of these activities or more upon one than another, and to reside variously between Broken Hill, Robe and Adelaide;

   (2)his decision to undertake a Bachelor of Visual Arts degree in Adelaide in 1998, a degree which he finished in 2001, a decision which, on any account, limited the time within which he might exploit that capacity;

   (3)his general state of health, including his alcoholism and various associated and other medical problems;

   (4)the impact, on his exercise of that capacity, of the first and second accidents;

   (5)his failure to lodge tax returns for the financial years ending 1998 to 2004, inclusive, until about October 2004 and his need to rely upon estimates of income and expenses in those years for the purposes of those returns and in support of his claim for loss of earning capacity, estimates which were shown, on the evidence, to be flawed;

   (6)his inability to recall any or sufficient particulars of remunerative work undertaken by him since the end of 1999, in particular the periods involved and the amounts earned.

2. As to career choices, he provided a history of early full‑time employment as a house painter in Broken Hill, then in Adelaide.  For his own reasons, he apparently chose not to continue that work in an employed capacity.  He also operated a drink round and an art gallery in Broken Hill, but then abandoned that.

3. He then made choices about his football career, which involved him moving back and forth between Broken Hill and Adelaide and, ultimately, saw him go to Robe in a full‑time football coaching position.

4. As I have noted, in 1998 he commenced full‑time study for a Bachelor’s degree in Visual Arts and supported himself on Austudy, as well as by weekend house‑painting work. 

5. It was, of course, towards the end of that degree that the first accident occurred, but as I understood the plaintiff’s evidence, his intention had then been to attempt to forge a career in artistic painting, anyway, albeit to support it where necessary with casual house‑painting work and/or football scouting.

6. It is plain from the medical evidence that his work history was destined to be troubled by his longstanding alcoholism and other medical problems, including chronic gastritis, diverticulitis, diaphragm hernia and various oesophageal problems.

7. He failed to file taxation returns for six years, but when in 2004 he consulted a tax agent and had them prepared, he appeared to have some available information concerning at least the years 1998 (when he principally operated as an artist and juice vendor with a minimal amount of subcontract painting) and the year 1989.  It would seem that the figures provided for his income and its attribution to his various earning activities, after then, were estimates only.  In cross‑examination about these matters, it became apparent he had given little thought to them and in some instances they did not stand up against evidence about earnings that he had already given.  Further, his claim that he had increased his level of house‑painting work from the time of the accident did not accord with his returns for the years ending 2001 and 2003, which showed no income from that source. 

8. His evidence was then to the effect that, since obtaining a small builder’s licence and conducting house‑painting work in Tanunda from May 2004, he had had plentiful house‑painting work and was, indeed, working as many as 50 hours per week.  To the extent that I became obliged to assess damages for economic loss since 23 September 2000, it appeared to me that he had fully exploited his earning capacity since May 2004 and that, apart from a notional allowance for the future, his claim was for a closed period.

9. An overview of his income for the years from 1996 to the time of the first accident, reveals that the year 1999 was the first year he actually made a profit in his business activities, and then it was a modest one.  In the year during which the first two accidents occurred, his most substantial annual income of $8,817 was earned.  It was followed by a profit of $164 in 2001, a loss of $3,591 in 2002, a loss of $3,039 in 2003 and a profit of $6,026 in 2004.   I have cited those figures merely to demonstrate that there is no history of exploitation of his earning capacity which provides any reliable guide as to the value of his asserted loss. 

10. I note then his evidence as to his plans prior to 2000, namely, that he proposed to pursue a career as an artist but, when necessary, to supplement his earnings by house‑painting or football work. 

11. On the evidence before me, I am not persuaded that his work as an artist was in any substantial way inhibited by the third accident, nor that it caused or contributed to any loss of his earning capacity in that field.  Indeed, I note that he opened a gallery at Woodville in 2000, he sold artworks in a South-East gallery and, as well, to past buyers or friends, and he completed his degree in Art.  He had an exhibition in 2001 at his Woodville gallery.  None of this activity was, on the medical evidence, limited by his neck or upper back injuries – it may have been affected by his shoulder injury, but that did not result from the third accident.

12. I was not otherwise satisfied that in consequence of the third accident, he was unable to continue to earn money as a football scout.

13. Whilst I have made findings as to his levels of neck and thoracic disability attributable to the third accident, it is difficult to translate these into a measurable level of lost earning capacity in the plaintiff’s occupation of painter and decorator.  According to the plaintiff, his best output in the year 2000 was working two to three days at a time.  Even so, he found it difficult working overhead or lifting and carrying ladders and the like.

14. In 2001, the situation was not much different, although he did on a few occasions supervise for a friend on jobs of a week or more.  In 2002 his work pattern was much the same, but he coped better with it.  By then, his neck was improving but his shoulder had deteriorated.  This situation continued throughout 2003 and in May 2004 he resumed full‑time work. 

15. In May 2000 and prior to the third accident, Dr Cohen noted that the plaintiff’s injuries from the first two accidents had “interfered” with his work.  In December 2000, he recorded that the plaintiff had not worked between the second and third accidents, save for two unsuccessful attempts, and he did not think that he should yet make a return.  As of November 2003, he reported that the plaintiff had been working for short periods of half to two days and had been managing with difficulty.  Mr McCrae then told him he was intending to resume work soon, but he thought the plaintiff would have difficulty with it.

16. For the purposes of my assessment, that latter conclusion must necessarily be written down because:

    (1)it was plainly based, at least in part, on the 12.5% impairment of his right arm – an unrelated injury;

    (2)of the undoubted fact that the plaintiff did afterwards carry out such work and, indeed, returned to it full time in May 2004.

17. Dr Eriksen considered as of March 2003 that the plaintiff’s injuries were essentially of a soft tissue type, that they ought to have resolved by then and that they would, in his experience, likely improve gradually after a return to work.  Mr McCrae had then reported he had completed a two-week job and was intending to resume work in six weeks’ time.  Dr Eriksen’s prognosis proved largely correct, albeit that the return to work was not until twelve months later.  Even so, that prognosis had regard to the full extent of his neck injury and also took account of the plaintiff’s shoulder injury and his anxiety symptoms, aspects not related to the third accident.

18. As I have already observed, the plaintiff’s specific memory of the work he undertook in this period was poor, indeed, and in some respects did not appear to match his taxation income estimates.  There was no other evidence called as to this, in particular from his friend for whom he carried out supervisory work.  It is plain that he was not working full time as a house painter, but equally plain he had not done so for several years before.  On the basis of the medical opinion which I accept, he was, at least until March 2003, partially incapacitated for this work by reason of his neck and shoulder injuries.  After that time, however, I prefer and accept the opinion of Dr Eriksen (supported as it is by Mr McCrae’s own then-stated intention) that he was fit to resume full‑time work.  The fact that he did not do so appears to me to have been a matter of his own choosing.  Further, as I have found, he chose, over that time, to undertake full‑time study in art and, as well, to establish an art gallery and present an exhibition.  This, along with his football activities, was always destined to limit the amount of time available to him to carry out house painting, anyway.

19. Doing the best I can, I find myself satisfied that between September 2000 and May 2003 and in consequence of his shoulder and neck injuries, the plaintiff suffered a loss of his earning capacity as a painter and decorator which I assess at 30%.  I find that half of that loss is attributable to the unrelated shoulder injury and that the neck injuries suffered in the three accidents contributed equally to the balance.  However, the third accident having contributed in a material way to his neck disability, I find that in that period, it produced a loss of 15% of his working capacity as a house painter (March v Stramere (1990-91) 171 CLR 506).

20. On the basis of the plaintiff’s limited exploitation of that capacity in the past, his commitment to other activities and his alcoholism, it is difficult to express that loss in monetary terms.  I can do no more than fix a lump sum which I consider will reflect the value of that lost capacity attributable to the third accident over that closed period.  I assess it in an amount of $12,000.

21. As to his work in football, he complained of being unable to jog and participate in some aspects of training, but his real work was as a forward scout and, in this respect, it appears to me he was increasingly successful in terms of obtaining better positions over the relevant period.  I make no allowance for this.

    -  Future economic loss

22. By reason of my above findings, I am not persuaded that the plaintiff will likely suffer any ascertainable loss by reason of the contribution made to his neck injury by the third accident.  He has worked continuously at house painting since May 2004 and, on the basis of the medical opinion which I accept, and I here refer to that of Dr Eriksen, I am satisfied he has to all intents and purposes regained his pre‑accident capacity.

23. I will make no allowance under this head.

    -  Past special damages

24. At the outset, because of my findings, I reject any claims pre‑dating 23 September 2000.

25. As to attendances post‑dating that time, the plaintiff obviously cannot recover for treatment for unrelated injuries or incidents.

26. The task of separating those truly attributable to his third accident is very difficult, as his own evidence as to this was sparse and it was plain that, even after the third accident, he saw his general practitioner and others about numerous other problems.        

27. Doing the best I can and having regard to my above findings, I would allow special damages as follows:

    (1)         Modbury Hospital  $135.20         

    (2)         Perrett & Co.  $257.85         

    (3)         Dr Alexander  $140.75         

    (4)         Dr S M Fowler  $68.00         

28. I note the first of those sums has been paid on behalf of the defendant and that the remainder have been paid by the Health Insurance Commission, and I will hear from the parties as to appropriate orders.

    -  Future medical and other expenses

29. Having found against the plaintiff’s claim with respect to his right arm and shoulder injury and having concluded he has all but recovered from his neck injury, I can do no more than make a nominal award for these expenses and I fix a figure of $1,500.

    -  Interest on past economic loss

30. In lieu of interest on past economic loss, I will award a lump sum of $2,000.

    Summary

    Non-economic loss  $7,900.00
      Past economic loss  $12,000.00
      Special damages  $601.80
      Future medical and other expenses            $1,500.00
      Interest on past economic loss                   $2,000.00
      __________

    $24,001.80

    __________                 

31. The formal orders will be dismissing the plaintiff’s claims based on the first and second accidents and assessing the plaintiff’s damages with respect to the third accident at $24,001.80.  I will hear from the parties as to costs and consequential orders.