Mecavin v Parker - [2022] WADC 23

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   MECAVIN -v- PARKER [2022] WADC 23
CORAM:   STEVENSON DCJ
HEARD:   17 - 21 JANUARY 2022
DELIVERED          :   4 MARCH 2022
FILE NO/S:   CIV 2046 of 2017
BETWEEN:   STEVICA MECAVIN
Plaintiff
AND
SHERRY LYN PARKER
Defendant

FILE NO/S: CIV 28 of 2018
BETWEEN: STEVICA MECAVIN
Plaintiff
AND
CLARE COLE
Defendant

Catchwords:

Tort - Negligence - Motor vehicle accident - Personal injury - Causation - Pre‑existing underlying degenerative change - Civil Liability Act 2002 (WA) - Whether plaintiff suffered a compensable personal injury - Credibility - Provisional assessment of non‑pecuniary loss - Turns on own facts

Legislation:

Civil Liability Act 2002 (WA), pt 1A, pt 1A s 5C, pt 1A s 5B
District Court Rules 2005 (WA), r 45C, r 45E, r 45H(1), r 45I
Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3A, s 3B, s 3C, s 4C(4), s 27B, s 27B(1)(b), s 29(1), s 29A

Result:

Both actions dismissed

Representation:

CIV 2046 of 2017

Counsel:

Plaintiff	:	In person
Defendant	:	Mr T J Hammond

Solicitors:

Plaintiff	:	Not applicable
Defendant	:	Civic Legal

CIV 28 of 2018

Counsel:

Plaintiff	:	In person
Defendant	:	Mr T J Hammond

Solicitors:

Plaintiff	:	Not applicable
Defendant	:	Civic Legal

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

Barnes v New Zealand Holdings Pty Ltd [2011] WADC 208
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Damjanovic v Sharpe Hume & Co [2001] NSWCA 407
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Jones v Dunkel (1959) 101 CLR 298
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Minogue v Human Rights and Equal Opportunity Commission (1999) 166 ALR 129
MTI v SUL [No 2] [2010] WASCA 58
Mtsambiwa v Zagari [2019] WADC 154
Musumeci v Woodfield [2005] WADC 2
Neil v Nott (1994) 68 ALJR 509
Perry v Nottle [2003] WADC 143
Phillips v London & South Western Railway Company (1879) 5 QBD 78
Purkess v Crittenden (1965) 114 CLR 164
Re Attorney-General (Cth); Ex Parte Skyring (1996) 70 ALJR 321
Shorey v PT Ltd 197 ALR 410
Smart v Prisoner Review Board (WA) [2012] WASC 48
Tobin v Dodd [2004] WASCA 288
Watts v Rake (1960) 108 CLR 158
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

STEVENSON DCJ:

Introduction

The plaintiff (Mr Mecavin) was born in Serbia on 22 April 1965. He arrived in Australia aged 16 years, before moving to Western Australia in 2012.
Each action concerns a personal injury claim by Mr Mecavin said to arise out of separate incidents involving his motor vehicle. The first incident occurred on 10 November 2014 (the First Accident). Two years and six months later, his same motor vehicle was involved in another incident on 29 May 2017 (the Second Accident).
Mr Mecavin submitted an online crash report form in relation to the First Accident on 7 June 2017, the same day his then solicitors (Simon Walters) informed the Insurance Commission of Western Australia of his claim. This was almost two years seven months after the First Accident. This is not an insignificant period, given the claim instituted was premised on an alleged total incapacity for work from the date of the accident on 10 November 2014.
Notwithstanding the delay, the defendant's insurer waived any defence based on Mr Mecavin's failure to give notice 'as soon as practicable after the occurrence giving rise to the claim': s 29(1), Motor Vehicle (Third Party Insurance) Act 1943 (WA), (the MV Act). For the avoidance of doubt, the court excuses the failure by Mr Mecavin to give notice: s 29A of the MV Act.
Separate proceedings in respect of each incident were commenced by Mr Mecavin on 13 June 2017 (CIV 2046 of 2017) and 8 January 2018 (CIV 28 of 2018), by the law firm Simon Walters. This firm continued to represent Mr Mecavin until he became self‑represented on 30 April 2021 following an earlier application by his solicitors to cease acting on his behalf.
The statement of claim in each action is identical apart from the particulars in par 2 relating to the circumstances of the relevant motor vehicle accident. At trial Mr Mecavin maintained in evidence that he was symptom free prior to the First Accident. Accordingly, he attributed all 'his pain and suffering' to the motor vehicle accidents, but in particular to the First Accident. Mr Mecavin appeared to accept that not much turned on the Second Accident.
The particulars of the alleged loss and damage suffered by Mr Mecavin filed on 2 November 2018 by his then solicitors in each action are also identical. The total amount claimed was $1,094,331.68, plus non‑pecuniary loss.
The claim includes a claim for total incapacity for employment from the date of the First Accident, 10 November 2014 to the date of the pre‑trial conference, 1 February 2019. Mr Mecavin did not seek to update the particulars of damages filed on 2 November 2018 for the purpose of the trial and expressly declined to do so.
Instead, in his closing written submissions Mr Mecavin indicated his economic loss was 'maybe not 100% but at least 50%'. This 'end of trial' change in position by Mr Mecavin is an indication, in my view, that he accepts the evidence of his work capacity which was adduced against him is cogent and persuasive, and that he was able to work, even though he sought to maximize his incapacity by reference to 'good days and bad days'.
At the commencement of the trial, each defendant formally admitted liability for their motor vehicle accident, but maintained, as pleaded, that Mr Mecavin did not, and could not, have suffered or sustained any personal injury as alleged because of either incident singly, or in combination.
In particular, the defendant contended that even if the First Accident caused any injury (which was not admitted), any symptoms would have resolved within a few months at most. Further, the defendants contend any injuries sustained because of the First Accident would not result, in any event, in an award of non‑pecuniary loss more than the statutory threshold imposed by the MV Act.
In view of the minor nature of the Second Accident, the defendant also contended that Mr Mecavin did not, and could not, have sustained any personal injury arising out of what happened.
The defendants rely upon expert medical evidence that any symptoms suffered during the relevant period by Mr Mecavin were entirely unrelated to either incident.In short, the defendants contend Mr Mecavin has not proved on a balance of probabilities that there is any actual and discernible nexus between any symptoms he claims to have suffered and the accidents.
The essential issue in this trial is whether Mr Mecavin has proved on a balance of probabilities that he suffered any personal injury because of either incident involving his motor vehicle and, if so, the extent of any award of damages that he is entitled to as compensation.
For the following reasons, I am not persuaded on a balance of probabilities that Mr Mecavin suffered a compensable personal injury because of the First or Second Accident, or in combination. Any physical symptoms suffered by Mr Mecavin have not been proven to be related to or caused by either incident.
In any event, any personal injury arising out of the First Accident and/or Second Accident cannot as a matter of law result in an award of damages in favour of Mr Mecavin for non-pecuniary loss by operation of the s 3C(4) of the MV Act.

Mr Mecavin's self‑representation

The two actions the subject of each motor vehicle incident were instituted by the firm Simon Walters on behalf of Mr Mecavin. As a result of a prosecution commenced in the Magistrate Court against Mr Mecavin for providing false or misleading information to Dr Silbert and Mr Hill about his post-employment activities contrary to s 27B(1)(b) of the MV Act a notice of change of representation dated 30 April 2021 was filed by Simon Walters. Since then, Mr Mecavin has maintained the proceedings and acted on his own behalf as a self‑represented litigant.
On 1 June 2021, Registrar Kingsley wrote to Mr Mecavin confirming the trial was listed to commence on 17 January 2022 and strongly urged him to obtain legal representation for the trial. Registrar Kingsley informed Mr Mecavin about the trial process. He stressed that Mr Mecavin had the onus of proving his claims and outlined the process of giving and adducing evidence in person and from witnesses. Registrar Kingsley also explained what evidence is and the responsibility of Mr Mecavin to arrange the attendance of his witnesses.
Several directions hearings were held prior to the commencement of the trial. Programming orders were made to facilitate the efficient conduct of the trial and to ensure compliance with the District Court Rules 2005 (WA) (DCR) for the filing of documents. Many of these orders were not complied with by Mr Mecavin. I infer the defendants' lawyers primary concern was to have the matter heard and determined as they did not seek to enforce the orders.
Prior to the commencement of the trial Mr Mecavin was provided with a detailed document entitled 'Trial Procedure'. This again set out key relevant information for Mr Mecavin as to how the trial would proceed and his obligations in this regard.
Throughout the course of the trial Mr Mecavin was asked if he had any questions or required clarification about anything that had happened or been discussed. To his credit Mr Mecavin always conducted himself during the trial appropriately and with respect to the court.
I accept Mr Mecavin subjectively believes that some, if not all, his symptoms are attributable to his involvement in both motor vehicle incidents. As mentioned, Mr Mecavin placed greater weight on the First Accident as the cause of his symptoms. For example, he maintained in evidence that the front of the bonnet of the at fault driver's vehicle was 'bent' as a result of the force of the impact between the vehicles. On the evidence, I find this was invention and not the case.
Mr Mecavin seemed to accept the very minor nature of the Second Accident. However, his evidence grew during the trial when he maintained he was turning to his left when the contact occurred, thereby suggesting by inference that he was maximally at risk of injury or aggravation of the pre-existing degenerative change in his back.
Prior to the commencement of the trial Mr Mecavin was also referred to the District Court website portal and directed to the information for self‑represented litigants, which includes the 'Procedure Guide for Self‑represented Litigants for General Civil Claims in the Civil Jurisdiction of the District Court of Western Australia'.
The trial was conducted in accordance with well‑established general principles which provide guidance on the level of flexibility and assistance to be afforded to a litigant in person. For example, a litigant in person is entitled to some leniency in relation to compliance with court rules: Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10].
In this regard, Mr Mecavin provided the court with a bundle of documents one working day before the commencement of the trial. This was immediately forwarded to the defendants' solicitors, and Mr Mecavin was advised that any communications with the court must be copied to the other side. This is consistent with the obligation of a court to approach documents in which a litigant in person articulates their claim with some flexibility to ensure there is no delay to the trial: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536 ‑ 537 (Kirby P); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J).
A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain that the rights of parties are not obfuscated by their own advocacy: Neil v Nott (1994) 68 ALJR 509, 510 [21]; Glew v Frank Jasper Pty Ltd; Tobin v Dodd [2004] WASCA 288. In Re Attorney-General (Cth); Ex Parte Skyring (1996) 70 ALJR 321, 323 Kirby J stated:
… it is always important for every judge to keep an open mind in case a person who has been rejected by courts in the past may have, hidden amongst the verbiage of his or her arguments, a point which has not previously been seen and which may have merit. Vigilance, and not impatience, is specially required where that person is not legally represented.' A court ought to assist a litigant in person to the extent consistent with the interests of justice. What the court ought to do will depend upon the nature of the case and the litigant's capacity to understand the issues in the case: Konings v Commonwealth Bank of Australia [2016] WASCA 122 [12] (Konings); Tobin [14].
I note the duty of the trial judge to assist a litigant in person will vary depending on the litigant, the nature of the case and the litigant's intelligence and understanding of the case. Accordingly, the boundary of legitimate intervention is flexible and will be influenced by the need to ensure a fair and just trial: Minogue v Human Rights and Equal Opportunity Commission (1999) 166 ALR 129 [27]. I have borne in mind, as English was not Mr Mecavin's first language, that the court's duty to a litigant in person is increased if the litigant does not have English as their first language: Damjanovic v Sharpe Hume & Co [2001] NSWCA 407 [163].
As mentioned, my role and duty as trial judge was explained to Mr Mecavin at the commencement of the trial, mindful that the court must also ensure that any latitude given to a litigant in person does not deprive the other party of its right to procedural fairness and a fair hearing: MTI v SUL [No 2] [2010] WASCA 58 [42] - [43].
It is noted that the defendants' counsel (Mr Hammond) and solicitors were cognisant of the court's duty to Mr Mecavin as a litigant in person and very fairly facilitated the court in discharging this duty. For this reason, I raised some evidentiary matters with counsel for the defendants on the basis that Mr Mecavin would not have appreciated the issue himself not being legally trained. The latitude granted by the defendants to Mr Mecavin in relation to certain procedural matters was appropriate in the circumstances consistent with their desire to allow the trial to proceed in the most efficient manner to enable the claims to be determined according to law. For example, Mr Mecavin did not file a list of witnesses (because he decided he was the only person who would give evidence in support of his claims), an expert witness report index or opening submissions contrary to r 45I, r 45E and r 45H(1) of the DCR.
It is must be remembered that Mr Mecavin was legally represented for the period which included commencement of the proceedings, filing of pleadings and formulation of his particulars of damage pursuant to r 45C of the DCR. At trial, however, Mr Mecavin did not seek to prove or adduce any evidence himself in support of any claim for pecuniary loss and damage. Instead, in his evidence and in his closing written submissions he articulated a general ambit claim for a global award for pecuniary loss of at least 50% of the particularised claim. Mr Mecavin said in his closing written submissions:
I was true what I was saying, I just wanna claim suffering and pain as a resault of both accident, that I could not work 100% after that, lost long time relationship, would like to claim economic lost at least 50%. because at that time even now I could do shift works, long hours at that time even now, but will leve this to experts, my activite is limitted now and cannot do as I could do before, fishing, sport, dancing, on and on.
(spelling not corrected)
The forensic difficulty for Mr Mecavin in relation to an award of damages for economic loss is that after the claims were made, he was convicted of criminal offences for providing false or misleading information in relation to his work capacity to treating medical professionals. The independent documentary evidence, some of it emanating from Mr Mecavin himself, provides further corroboration that he was undertaking work as a painter which was not declared to Centrelink or the Australian Taxation Office.
Mr Mecavin did not seek to adduce evidence of his claimed economic loss by reference to a schedule of claimed actual income earned from his work as a painter. Accordingly, there is no foundational evidence upon which an award for economic loss can sensibly or reasonably be made even making allowance for the underlying credibility issues of Mr Mecavin. The fact is Mr Mecavin did work as a painter in the relevant period (even though he claimed total incapacity) and he has not proven on a balance of probabilities any economic loss attributable to his alleged symptoms caused by, or arising out of, either motor vehicle accident.

The evidence of Mr Mecavin

Mr Mecavin gave evidence in relation to his work history prior to the First Accident, details of each accident, general evidence in relation to medical consultations and treatment, and post-accident work undertaken by him as a painter. Mr Mecavin did not adduce any direct evidence of economic loss. He was cross‑examined at length by reference to the medical and financial documentary evidence, and the surveillance evidence.
Mr Mecavin was born in Yugoslavia and came to Australia in 1981. His mother and other members of his family remained and still are in Serbia. Mr Mecavin entered the workforce as a painter at a fairly young age after working as a storeman at the Royal Melbourne Hospital for about five years. He started working in family businesses as a painter in the mid‑1980s and did so until 2008 when he became a carer for his father. Prior to this, he worked consistently for about 20 years as a painter of commercial and residential property. He worked full‑time.
Whilst caring for his father from 2008 onwards, he received Centrelink benefits. This changed to a Newstart allowance when he came to Western Australia in 2012.
Mr Mecavin said in evidence-in-chief that immediately prior to the First Accident on 10 November 2014 he had been working as a painter for Spectrum Painting. The documentary evidence adduced in the trial indicates that much of the income Mr Mecavin received from Spectrum Painting was not disclosed to Centrelink or to the Australian Taxation Office.

10 November 2014 - the First Accident

Mr Mecavin was stationary on Tonkin Highway at the traffic lights on the corner of Benara Road, Beechboro. According to him there was a car about three - four metres behind him which was also stationary. After he had been stationary for about 30 seconds, he said this vehicle impacted his vehicle.
Mr Mecavin was driving a 1993 green four-wheel drive LandCruiser. In his evidence‑in‑chief he said the vehicle 'moved forward'. He said his vehicle did not suffer much damage because he had a tow bar. According to him his 'car was damaged only electrical stuff, like couple of windows and the radio stereo'. His evidence‑in‑chief was that he could not wind the window up and down after the incident. He said it was 'probably' caused by the collision. He said the front passenger window and the rear right hand side windows were damaged, but no other damage occurred to his vehicle.
Mr Mecavin said he 'saw damage at the front' of Ms Parker's vehicle but 'at this moment I can't remember how much was. Just at the front was damaged. …' When asked what he meant, Mr Mecavin said the top part of the front bonnet 'was sort of damaged' and was 'sort of like bent, it looked like open when she has hit me'.
Mr Mecavin said he exchanged contact details with Ms Parker before then proceeding home.
In cross-examination, Mr Mecavin maintained that Ms Parker was stationary about three metres behind him (her evidence was one to one and half metres) and she was doing more than 10 km per hour at the time of impact. He maintained he 'saw damage at the bonnet' and did not accept the evidence of Ms Parker that there was no damage to her vehicle. When pressed in cross‑examination by Mr Hammond in relation to the nature and extent of the force involved in the incident, Mr Mecavin asked whether he was referring to the Second Accident. His subsequent answers were also, in my view, evasive and deliberately non‑responsive.

Mr Mecavin said he 'didn't feel much pain at that time but at night he felt dizzy, and the next day he felt pain in his neck and lower back and went to see a doctor'.
The first medical consultation appears to be four days' afterwards on 14 November 2014 when Mr Mecavin saw Dr Razack. Mr Mecavin's records from the Rudloc Road Medical & Dental Centre Morley record his next appointment as 25 May 2016 with a complaint of right loin pain and tender right lumbar with full lower back flexion. There was no complaint by Mr Mecavin in relation to neck pain recorded in his medical notes until 15 May 2017 when he saw Dr Nyaung.

29 May 2017 - the Second Accident

Mr Mecavin said on 29 May 2017 that he was parked in his LandCruiser in Haynes Street during a morning tea break having started work at 7.30 am as a painter at the Kalamunda Hospital. According to Mr Mecavin, he had returned from the coffee shop and 'got into the car and I didn't start my car yet. Put the stuff on the seat and coffee at the holder and when I was turn on the left hand trying to put my seat belt somebody hit me from behind. The lady was trying to park at the back and instead of breaking she pressed the accelerator'.
Mr Mecavin said he was not aware Ms Cole was attempting to parallel park behind him and that only when the collision occurred, did he look in the rear vision mirror for the first time. He maintained there was only a scratch on the tow bar of his vehicle. He said the only damage on Ms Cole's vehicle was on the registration number plate which he described as a 'dent'.
Mr Mecavin said he completed work that day at 3.30 pm. He said he did not feel any pain at the time of the incident but that on the same day he went and saw a doctor at the Morley Medical Centre (even though there is no record of his attendance in the practice notes).
According to Mr Mecavin, Dr Nyaung subsequently prescribed pain killers for pain he was experiencing in his left hip and numbness in the leg. He maintained the pain continued in his shoulders and neck and he ended up in hospital because he could not walk. There appears to be a conflict in his evidence in this regard because there is documentary evidence of a discharge summary from St John of God Hospital Midland which records Mr Mecavin was admitted on 20 May 2017, which of course was prior to the Second Accident.
In cross-examination, Mr Mecavin did not accept the impact was extremely minor with no force. Contrary to the evidence of Ms Cole, Mr Mecavin said in cross‑examination they had a conversation and she indicated to him that 'she accidentally hit the accelerator instead of the brake'. Mr Mecavin did not accept it was not possible that he suffered an injury as a result of the incident.
Mr Mecavin gave evidence that he had received an offer from Orange Painting Service in May 2017 which he alleged he was unable to take up by reason of injuries sustained following the Second Accident. The evidence of Mr Mecavin was that he was working for DFP Agency at the Kalamunda Hospital. There is a payment summary form from this business which indicates Mr Mecavin was paid the sum of $10,693 for the period 5 May 2017 ‑ 25 June 2017.

Mr Mecavin's evidence in support of his claim for loss and damage

In his evidence Mr Mecavin gave some history of treatment for various symptoms suffered in the period 2014 to the current time. This included the use of pain killers for left hip and leg numbness, shoulder, back and neck pain including cortisone injections and hospitalisation on two occasions, one of which appears to be because of injuries sustained as a result of a 'dropped leg'.
Mr Mecavin admitted he had advertised for work as a painter and decorator on some internet sites and had also obtained employment with Spectrum Painting Services Pty Ltd and Top Coat Painting Services WA as a painter during the material time.
Following a relationship breakdown and separation, Mr Mecavin said he lived by himself and had since been trying to recover from his injuries. Mr Mecavin has three adult children and presently lives on his own.
In summary, Mr Mecavin said he often has pain which is sometimes better than other times 'but last six months I was feeling really good and had small maintenance job last week and my strength in my hand is not that good'. Mr Mecavin said he has difficulty sleeping at night because of neck pain and wakes feeling tired and stiff. He said his right leg from the knee to the toe is numb and is seeking neurological medical treatment in this regard. He maintained that prior to the First Accident he was in 'really good health and fit'.
Mr Mecavin said in evidence‑in‑chief when asked about any personal financial loss directly arising out of either accident, the following:
Personal actually loss, as I said, at the beginning …. My main thing was I can continue working because before I couldn't work for a couple of weeks. …
As I said, all I'm asking as well for suffering pain and in future and what I went through since 2014. Since 2014 up to 2017 wasn't that bad but at that day when I started working for DFP become really complicated. Yes, your Honour. That's - that - that's all about that.
Mr Mecavin did not tender any direct evidence in support of a claim for economic loss.

Cross-examination of Mr Mecavin

During cross-examination, Mr Mecavin confirmed his full‑time working history as a painter in Melbourne before stopping work in 2008 at the time he started receiving a carer's allowance for looking after his father. He accepted he had been receiving Centrelink benefits since coming to Western Australia in 2012. He was taken to various records indicating the amount of Centrelink payments received by him from 1 July 2011 onwards. Mr Mecavin accepted that he had received the payments from Centrelink as set out in the documentary evidence but denied he had failed to declare all of the income he received as a painter and decorator for each financial year.
Mr Mecavin was cross-examined about various sources of income, which was evidenced by financial records, primarily payment summaries from Spectrum Painting Services Pty Ltd (a business owned and operated by Mr Zoran Ninkovic), and Top Coat Painting Services WA (a business owned and operated by Mr Jelisije Kalacanovic) and some other entities.
For example, Mr Mecavin was shown a summary of payslips from Spectrum Painting which totalled more than $177,000 for the period 2 May 2014 - 16 April 2019. The records indicate that in 2017 and 2018 Mr Mecavin was working about 38 hours per week, subject to the availability of work.
In cross‑examination, Mr Mecavin was prepared to accept that of this amount he received more than $120,000. He sought to create an issue on the basis that the difference in the payment summaries is because some were incorrectly created. He also suggested the payment summaries which referred to superannuation payments were not actual payment summaries on the basis 'we were experimenting to see how much I can get the loan if I go on wage'. Mr Mecavin would have been aware from the defendants' trial bundle of the huge discrepancy in income earned as suggested by the payment summaries, yet he did not call Mr Ninkovic to corroborate or explain his version of events.
Mr Mecavin was also taken to payment records purporting to indicate what he had been paid by Top Coat Painting Services WA for working as a painter in the period 2017 - 2019. Mr Mecavin said although he did not remember which years, he accepted that he did 'help' Mr Kalacanovic by working as a painter (as evidenced in the video surveillance footage in 2018) but that he could not remember if the income he earned was declared or not. Mr Mecavin also added 'it was usually paying off the debts to him anyway' and suggested that he had borrowed money from him and by undertaking the work he in fact did not derive any income from his labour.
In any event, Mr Mecavin was taken to his ATO notice of assessment for the year ending 30 June 2018 and agreed that he did not disclose any declared income other than benefits received from Centrelink.
It appears from the evidence that Mr Mecavin did not always file an income tax return, possibly for whatever reason he considered he did not have to declare his income other than the Centrelink payments which he was receiving and were known by the government. As often happens, those who did not declare income to avoid paying tax (or to continue receiving government benefits) find that they must bear the consequence when making a claim for damages as a result of a personal injury.
In cross-examination, even though Mr Mecavin was working as a painter, he accepted he was not registered in the period 2014 ‑ 2016. His registration commenced on 22 December 2016 and as at 29 December 2021 he was still registered as a painter. At least this is consistent with his own evidence that he can work as a painter.
Mr Mecavin was cross-examined in relation to several online advertisements for services offered by him for painting and decorating. He operated and was advertised under the name 'Steve the Painter'. Some of the websites included positive reviews from satisfied customers who had benefited from his painting skills and work. Mr Mecavin of course had to accept that he had sought painting work, even after the First Accident, but he did his best to minimise the extent of the work. He also gave evidence that because of the minimal value of the work performed (about which there is no evidence) it was not necessary to be a registered painter to provide the service.
Notwithstanding the extensive documentary financial records and other evidence, Mr Mecavin did not accept in cross‑examination that he had not been truthful in declaring the full extent of his income from work to Centrelink, or to the Australian Taxation Office, as a painter from 2014 ‑ 2021.
Mr Mecavin was also cross-examined at length in relation to the various histories obtained from medical practitioners during consultations. Even when taken to Dr Watson's handwritten notes which recorded 'painter. Not worked since 2012' and the date May 2017 marked with an asterix, Mr Mecavin said in response that he believed he had told Dr Watson that he 'was working a few jobs between that which wasn't much at all and I declared that'.
In relation to the history obtained by Dr Hill to the effect that Mr Mecavin told him that he had not worked since 2008 when he was a self‑employed painter and decorator in Melbourne, again Mr Mecavin did not accept he said this. There is no apparent reason why two professional medical practitioners would both be wrong in their notes based on the history obtained from the same patient.
Mr Mecavin was cross‑examined in relation to the three day trial in the Magistrates Court on 30 October 2020 which resulted in him being convicted of two counts of providing false or misleading information contrary to s 27B(1)(b) of the MV Act. The two convictions relate to proof beyond reasonable doubt to the learned magistrate's satisfaction that Mr Mecavin provided false or misleading information to Dr Silbert and Dr Hill about his post-crash employment activities and ability to work. The Magistrates Court of Western Australia notice of conviction dated 30 October 2020 records that the total fine imposed was $2,100.
As a matter of law, Mr Mecavin cannot go behind the convictions and for the purpose of assessing credibility and making findings in relation to Mr Mecavin's claims, as mentioned during the trial, the convictions themselves are not accorded any weight.
Mr Mecavin, in cross‑examination, accepted that his solicitors asked him to provide evidence of damage to his vehicle from the First Accident. In this regard he produced an invoice from King Auto Electrics, Bayswater, dated 10 August 2017 for $1,120 which describes the work as 'to supply and fit driver's door window regulator with motor Pioneer CD player with harness and pocket and labour'.
The evidence of Mr Mecavin in relation to the King Auto Electrics' invoice and whether the work was in fact done by them or if it was a quote was unclear and unsatisfactory. His response to a question about which window was affected by the alleged damage from the First Accident was: 'does it matter, left or right, after seven years'. He maintained that he could not remember exactly if the work related to damage caused by the accident and proffered in his evidence that it was 'probably a mistake'. Later he said 'it's only a quote and I done after. I fix after' and subsequent evidence was to the same effect that he fixed a few things after the accident himself. Mr Mecavin then said, 'but I can't remember if I proceeded with this or not' and that he would have 'to check on my account or something'. Then he added he thought he paid cash. In short, Mr Mecavin's gross obfuscation makes it impossible to have any level of satisfaction that the work claimed was in anyway attributable to the First Accident.
Mr Mecavin was also cross-examined on the basis that he did not complain about neck pain until November 2014 to his medical practitioners. His response was: 'Do I need to mention all the time if he knows'. With respect, if the purpose of the attendance is to complain about pain and to seek medication to relieve the alleged symptoms then it is reasonable to assume the medical practitioner would make a record of the reason for the consultation and a note of any prescribed drugs.
Mr Mecavin also accepted in cross-examination that he had been told by Mr Ninkovic about his own motor vehicle accident claim and receipt of compensation and accepted that as a result of this advice his own 'trips to the doctor became a lot more frequent' thereafter.
Mr Mecavin was cross-examined in relation to questions he completed during a medical appointment for the purpose of obtaining a driver's entitlement and taxi extension. This is recorded in Mr Mecavin's general practice medical notes by Dr Farooq on 7 November 2016.
Mr Mecavin accepted that he had completed the patient questionnaire on 7 November 2016 by recording the answer 'no' to the following questions:
1.Are you currently being treated by a health professional for any illness or injury?
2.Are you receiving any medical treatment or taking any medication (either prescribed or otherwise)?
3.Have you ever had or been told by a health professional that you have, any of the following:
Neck, back or limb disorders?
4.Have you been in a vehicle crash since your last fitness to drive assessment?
In cross-examination Mr Mecavin accepted that his answers had been wrong, even though he attempted to qualify and minimise the responses. His justification as explained to the court was that he thought his approval would be rejected. This dishonest course of conduct on its own is not of course relied upon solely for making adverse findings about the credibility of Mr Mecavin. It is understandable why he provided dishonest answers as he wanted to maintain a licence for the purpose of earning an income.
Mr Mecavin was also taken to parts of the video surveillance footage which unequivocally prove he was working as a painter on certain days including 10 May 2018, 25 June 2018 and the period 4 ‑ 7 September 2018. Faced with this evidence, Mr Mecavin accepted he had been working as a painter and said he did so to the extent that he felt he was able to, having regard to his pain and restrictions at the time.
Mr Mecavin did not accept in cross‑examination, notwithstanding the documentary evidence at trial, that he failed to declare significant amounts of income that he was earning as a painter between 2014 ‑ 2018 to Centrelink and to the Australian Taxation Office.
Mr Mecavin accepted he was deliberately untruthful in his application to extend his driver's licence to the Department of Transport in 2016 but did not accept that he had exaggerated the extent of his symptoms to make them sound worse than they actually were for the purpose of his claim.
Mr Mecavin also did not accept in cross‑examination that he had been untruthful about the damage to the vehicles in the accidents and that he had not suffered any financial loss because of the two accidents. He did not accept he had suffered no disability as a result of the accidents.

Assessment of Mr Mecavin's evidence

In assessing what weight to give to the evidence of Mr Mecavin, I have made allowance for the language barrier. I am satisfied I was able to understand the evidence he was communicating to the court. In any event, in this case there is overwhelming contemporaneous documentary evidence including medical records, financial records and surveillance evidence which has to be considered. Mr Mecavin's understanding of English after living in Australia since the age of 16 was better than his oral communication.
At times, I find Mr Mecavin in answering questions was not full and frank and some answers were non‑responsive in circumstances where, in my view, Mr Mecavin did understand the question. By reason of the body of evidence which is contrary to parts of his oral evidence, that evidence has a degree of force and effect which inevitably detracts from his credibility as a reliable witness of the truth.
Notwithstanding this, in my view, Mr Mecavin subjectively at all material times, and still does, believe that all or some of his symptoms are a direct result of the First Accident. This subjective view is of course against the weight of the independent medical expert opinion, which attributes his symptoms having regard to their nature and timing, and the trauma potential of the accidents, to be the result of normal degenerative change, which is not unexpected given Mr Mecavin's work history.

Ms Sherry Lynn Parker - the First Accident on 10 November 2014

Ms Parker is a teacher employed by the Department of Education and has worked as a teacher for about 30 years.
Ms Parker said on 10 November 2014 she was stationary at the traffic lights on Tonkin Highway before turning left into Benara Road. She was alone in her vehicle, a Subaru Forrester, registration number 1DOR 744. She was unsure of the exact time, but said it was late afternoon and the weather was fine. Ms Parker described the vehicle in front of her as being a 'four‑wheel drive or dual cab ute' and 'something bigger' than her car. She described the vehicle as 'a big, more heavy‑duty car'.
Ms Parker's evidence was that she left about 1 - 1 ½ m of bitumen between the front of her vehicle and the vehicle that she was stationary behind.
Whilst waiting, Ms Parker said she noticed the motor vehicles in the lane on her right‑hand side start to move and she 'thought the car in front of (her) was moving, but it wasn't'. As soon as she realised, Mr Mecavin's vehicle was not moving, she stopped and 'we connected, like a tap or a slight bump'. She described the nature of the impact between the two vehicles as 'really minor'.
Ms Parker said she and Mr Mecavin both got out of their vehicles to look at the cars, but there was 'no evident damage to either vehicle'. She said they could not find any damage to either vehicle but there was a scratch on the licence plate on her vehicle 'from his bumper'.
In examination-in-chief, Ms Parker was asked whether there was any damage to the bonnet of her car, and she said 'no'. Her evidence was that her vehicle did not require any repairs and that they simply swapped details before leaving.
Ms Parker said she did not suffer any injury from the impact. Relevantly, Ms Parker did not, in her evidence, say that Mr Mecavin had by reason of the force of the impact between the vehicles told her that he had struck his head on the steering wheel. I interpose if the force of the collision had been of this magnitude, and as deposed by Mr Mecavin that this happened, then I find it is likely Mr Mecavin would have told Ms Parker at the time. I find he did not say this and that it did not happen.

Ms Parker next became aware of the matter when contacted by her insurer which I infer was in June 2017 because of Mr Mecavin's solicitors' letter dated 7 June 2017 giving notice of the claim for the first time.
Ms Parker was taken to an online crash report form submitted 14 June 2017. She had no recollection of completing the form but confirmed the details including the crash description contained in the form are consistent with her memory of what happened. The online crash form records the speed at the time of impact was 5 km per hour and there was no damage to either vehicle.
In cross-examination, Mr Mecavin very properly, put to Ms Parker that the front bonnet of her vehicle would not close properly because it had been bent in the collision. Ms Parker's evidence was:[1]
There was no damage to the front of the car … and we didn't even try to open the bumper (sic). We just looked at the area around the ‑ where our tow bar was and where my licence plate was. There was nothing any higher.
[1] ts 252.
Ms Parker, in my view, was an honest and reliable witness doing her best notwithstanding the passage of time. I accept her evidence as a reliable account of the circumstances of the First Accident. I have taken into account the passage of time since the incident and that she had no cause to remember the incident until 2017 due to the late claim. I accept her evidence as to the way in which the collision between the vehicles occurred.
I find that the contact between the vehicles at the time of impact was at very low speed and there was no discernible damage to either vehicle. There was not enough space between the two stationary vehicles for Ms Parker's vehicle to have struck the rear of Mr Mecavin's LandCruiser with any real or substantial force, and certainly not enough force to have caused his head to strike the steering wheel. It was an extremely low impact event.

Ms Clare Julia Cole - the Second Accident on 29 May 2017

Ms Cole is a self-employed sole trader operating under a franchise as a dog washer and dog groomer. On 29 May 2017, she was driving her Mitsubishi work van, motor vehicle registration number 1BTJ 958, when she parallel parked in a car bay on Haynes Street, Kalamunda at about 11.00 am. The purpose of parking was to do the banking for her business. According to Ms Cole, her banking business records was the only way she was able to identify the incident the subject of Mr Mecavin's claim. I infer this was because of the insignificance and trivial nature of the event at the time.
Ms Cole said as she pulled forward in the parking bay, she 'just touched the car in front' and 'didn't think anything of it'. She said she did not even know if there was anybody in the vehicle until she got out after she had parked her car. Mr Mecavin certainly did not react by exiting his vehicle in the manner one might expect if there had been any force in the contact, even if only to check there was no physical damage to his vehicle.
Ms Cole described her vehicle as 'barely moving'. She was unable to say what speed her vehicle was travelling because she 'wasn't obviously looking' but added 'it was literally just moving forward, rolling'. She said she 'nudged it or tapped it' and there was no noise because of the contact between the two vehicles.
Ms Cole said when she went to get out of her vehicle to go and do her banking, she realised somebody was in the vehicle and jokingly shrugged her shoulders whilst giving evidence and said she told him: 'sorry like I just nudged your car'. According to Ms Cole, Mr Mecavin also shrugged his shoulders and walked off.
Ms Cole said Mr Mecavin's vehicle had a tow ball and 'it basically just touched my registration plate'. Ms Cole said that when an investigator attended because of Mr Mecavin's claim, there were some marks on the registration plate which she said was owned by her fourth‑hand and that the investigator and she could not attribute any of the marks to the incident.
Mr Mecavin, in cross-examination put it to Ms Cole that she saw a dent in her registration number plate at the time. Her response to this proposition was: 'not that I'm aware of'. Mr Mecavin did not give evidence that they inspected the vehicles together for damage, and he did not in cross-examination suggest to Ms Cole the incident was of such force that it caused them to exchange personal details.
I find Mr Mecavin, unknown to Ms Cole, made a note of her registration number at the time. It is of some significance that this incident occurred before Mr Mecavin formally made a claim on 7 June 2017 in relation to the First Accident, which had happened about two and half years earlier on 10 November 2014.
Mr Mecavin submitted an online crash form for the Second Accident on 28 June 2017 and his solicitors, Simon Walters, wrote to the defendant's insurer by pro-forma letter dated 6 July 2017. The solicitors' notice of claim sought damages for 'personal injuries' sustained by Mr Mecavin allegedly as a result of 'a collision at the intersection of Haynes Street and Barber Street, Kalamunda, WA'.
However, in his online claim form Mr Mecavin said Ms Cole hit the back of his vehicle 'which was parked' because she 'accidently pressed her accelerator instead of her brake'. Mr Mecavin gave evidence to this effect but did not cross-examine Ms Cole on the basis that she had accidentally pressed the accelerator thereby causing the contact. This scenario is of course in stark contradistinction to Ms Cole being in control of her vehicle at all material times as she was parallel parking behind Mr Mecavin's stationary LandCruiser.
I accept the evidence of Ms Cole as truthful and reliable as to the circumstances of the Second Accident. I carefully observed her while giving evidence and have no doubts about the credibility of her description of the incident, even though she would have had no reason to recall the details at the time because the event was so trivial.
The Second Accident was a very low impact contact between the two vehicles while Ms Cole was moving forward once in the car bay whilst parallel parking. There is no evidence that either Ms Cole or Mr Mecavin at the time thought the contact was of any moment and Mr Mecavin did not seek to obtain her personal details or even check the vehicle for any damage.
Mr Mecavin obviously made a note of Ms Cole's motor vehicle registration number. Mr Mecavin does not contend that either vehicle suffered any relevant or meaningful physical damage consistent with a forceful impact because there was none. I reject Mr Mecavin's conclusionary evidence that the incident occurred because Ms Cole 'accidentally' pressed the accelerator as opposed to the brake.

The surveillance evidence - Mr Joe James Richardson

Mr Richardson is employed as an investigations and intelligence officer by the Insurance Commission of Western Australia. He has worked in this role for about seven years. His task is to investigate suspected false and misleading motor vehicle insurance claims. Mr Richardson said this included surveillance, factual investigation, and online analysis.
In this matter, Mr Richardson was tasked to investigate whether Mr Mecavin was engaging in any work activities given his claim of total incapacity to work.
As a result of enquiries, Mr Richardson said he found online advertising by Mr Mecavin as 'Steve the Painter'. This included a number of reviews from satisfied customers with respect to painting and decorating work undertaken by Mr Mecavin for them. Mr Richardson also uncovered documentary evidence in relation to painting work being undertaken by Mr Mecavin for Top Coat Painting, and also, Spectrum Painting.
Mr Richardson said he collated the results of his investigations and recommended Mr Mecavin be prosecuted for giving false or misleading information contrary to s 27B of the MV Act. The evidence, in his opinion, suggested Mr Mecavin was undertaking post‑crash concealed employment as a painter whilst at the same time alleging a total incapacity to work, being in his opinion, the substance of the representations made by Mr Mecavin at the time to treating medical professionals and the defendants' insurers.
I interpose that the opinions expressed by Mr Richardson and formed with respect to the credibility of Mr Mecavin in relation to his personal injury claims has not been given any weight by me in making findings of fact for the purpose of these proceedings. As discussed with the parties during the trial, and as properly accepted by the defendants, this part of the evidence by Mr Richardson was adduced simply to provide the factual background for the Magistrates Court proceedings and subsequent convictions of Mr Mecavin. Again, for the avoidance of doubt, the fact that the magistrate convicted Mr Mecavin is simply noted and I have formed my own conclusions in relation to the credibility of Mr Mecavin for the purpose of determining his actions by reference to his evidence, the evidence of the other witnesses and the documentary evidence tendered in these proceedings.
Mr Mecavin did not seek to cross-examine Mr Richardson in relation to his evidence or any of the surveillance evidence which was tendered. As was seen in the surveillance footage on 10 May 2018, 25 June 2018 and 4, 5 & 7 September 2018 Mr Mecavin was plainly undertaking work as a painter at the relevant times without any discernible restrictions.

The medical evidence

Dr Peter Silbert - Clinical Professor of Neurology

Dr Silbert was requested by the defendants' solicitors to review Mr Mecavin and prepare a medico-legal assessment with 'regards to symptoms and their relationship to motor vehicle accidents that occurred on 10 November 2014 and 29 May 2017'. Dr Silbert saw Mr Mecavin on 25 July 2018 and prepared a report dated 30 July 2018.
Dr Silbert's medical training, qualifications and experience are fully set out in his curriculum vitae dated January 2022. Since 2008, Dr Silbert has been Clinical Professor of Neurology at the University of Western Australia and has also maintained an active clinical practice in the public and private sectors. For lengthy periods of time, Dr Silbert has also undertaken important administrative roles, for example as head of the Department of Neurology, Royal Perth Hospital and State Director of Neurology. Dr Silbert is currently involved in several State and national professional associations and academic roles. He has authored or co‑authored numerous papers and is involved in current research projects. Dr Silbert's qualification as a neurologist, with specialisations in neurophysiology, pain and spinal work is not in issue. Accordingly, the defendants rely upon his expert opinion on the essential issue of causation and the relationship, if any, between the First Accident and the Second Accident and Mr Mecavin's reported symptoms of pain.
Dr Silbert also obtained training and experience in America in neurophysiology which he described as:
Electrically testing nerves and examining nerves and working closely with spinal surgeons, neurosurgeons, orthopaedic surgeons, plastic surgeons as to the cause of pain or what is causing symptoms.
Currently, Dr Silbert said most of his practice is clinical work.
Dr Silbert's opinion, as ultimately expressed, is based on his understanding of the factual circumstances of each of the two incidents, the history that he obtained from Mr Mecavin in relation to both symptoms and work, the available medical records, and the surveillance evidence (which he viewed).
Based on this foundational evidentiary material Dr Silbert is of the opinion that Mr Mecavin does not have any symptomatology related to the motor vehicle accidents. At page 4 of his report dated 30 July 2018, Dr Silbert expressed his opinion that:
The trauma potential of the (second) motor vehicle accident is insignificant, both in terms of speed of the vehicle, and the smaller vehicles impacting the larger Toyota Landcruiser with a tow bar.
My interpretation of the available information is that the first crash had a similar insignificant trauma potential.
I am satisfied that Dr Silbert's general understanding of the circumstances of each of the First and Second Accidents is consistent with the evidence adduced during the trial and my findings of fact. There is, as a result, no real or sensible scope to undermine the opinion of Dr Silbert on the basis that it was arrived at, in part, by the minimal or insignificant trauma potential of each incident. It is noteworthy that Mr Mecavin did not seek to adduce any medical evidence or expert opinion to the contrary, having known since 2018 of the content and basis of Dr Silbert's opinion.
Dr Silbert confirmed that he also considered the history he was able to obtain from Mr Mecavin on 25 July 2018. Dr Silbert's evidence was, which is consistent with my observation of Mr Mecavin, that it 'was difficult to get specific information about certain aspects at the consultation'. I do not regard this as a direct criticism of Mr Mecavin at the time Dr Silbert made this assessment. There is of course a language barrier as English is not Mr Mecavin's first language. This is apparent from his written evidentiary material and submissions provided to the court and the way in which he communicated during the trial. As mentioned, I am satisfied that there has been no prejudice to Mr Mecavin, and I was always able to understand his evidence and submissions to the court.
Dr Silbert explained in his evidence that the history is obtained from the patient 'to ascertain what injuries we would expect from the incident'. By this I did not understand him to be putting the cart before the horse. Relevantly, Dr Silbert said:
… If someone has minimal damage to the vehicle, if the impact sounds very insignificant, then you would not expect significant, physical symptoms after that injury. The relevance of the tow bar is the tow bar, at low speed, is protective, at high speed it is perhaps a little bit of a negative, because the car doesn't buckle. But my impression was that this was a very low speed accident, …
On page 7 of his report, Dr Silbert expressed the following opinion:
Considering the trauma potential of both motor vehicle accidents, the inconsistencies in the stated history, and the delayed presentations for medical review, I do not believe that Mr Mecavin has any symptomatology related to the motor vehicle accidents.
Dr Silbert went on to express that, it is his opinion there was a possibility of malingering or embellishment of symptoms by Mr Mecavin for the purpose of his claims. Dr Silbert also reviewed medical records and results of radiological reviews and consistent with other medical opinion attributed Mr Mecavin's symptoms and complaints to his cervical degenerative changes, which he opined were unrelated to the motor vehicle accidents and due to the insignificant trauma potential was 'not adequate to cause any pathology in the cervical or lumbar spine'.
At page 9 of his report, Dr Silbert maintained that, in his opinion, the trauma potential from other or both motor vehicle accidents did not aggravate any pre-existing cervical or lumbar degenerative change. This opinion was expressly maintained noting Dr Silbert's perceived inconsistencies in the history provided to him by Mr Mecavin and his presentations for medical evaluation.
Based on the information available to him and the history he obtained from Mr Mecavin on 25 July 2018, Dr Silbert noted as follows:
Mr Mecavin's work history was very limited from before the first motor vehicle accident until 5 May 2017 when he started work as a Painter. He did patchy work throughout May (that he cannot be more specific regarding).
In summary, in his report dated 30 July 2018, Dr Silbert expressed the opinion, consistent with his evidence at trial, that the motor vehicle accidents would not have caused Mr Mecavin to miss any time away from work, that any limitation he has for employment relates to his pre‑existing cervical and lumbar degenerative changes, noting 'that he has a very limited work history in the 10 years prior to the motor vehicle accident, other than working as a carer for his father'.
Dr Silbert's opinion was also based on a pain diagram completed by Mr Mecavin on review which he accepted was consistent with symptoms experienced by Mr Mecavin. But in his evidence Dr Silbert said:
From the medical, clinical point of view, I cannot relate them to the circumstances of the motor vehicle accident both in terms of trauma potential, mechanism of injury, and the time flow of the symptoms after the accident.
(emphasis added)
Dr Silbert gave evidence, based on his clinical training and experience, that a patient's symptoms for a soft tissue injury is maximal in the days afterwards - 'so it builds up over a few days and then gradually improves'.
Dr Silbert was provided with a copy of Mr Mecavin's medical records from the Rudloc Road practice. These medical records contain an entry on 6 November 2014 (four days prior to the First Accident) that Mr Mecavin saw Dr Anthony Sciberras. The entry by Dr Sciberras notes that Mr Mecavin complained of some pain in his back left thigh for which he was seeing Dr De Kauche. Dr Silbert noted that Mr Mecavin was seen on 14 November 2014 (four days after) by Dr Razack whose notes indicate:
POOR HISTORIAN. PAIN BACK OF NECK. AND LOWER BACK 3DAYS, … REAR END ACCIDENT 10/11/14 NOT REPORTED MOVENT OF NECK FROM. TENDER PARASPINAL MUSCLES, NO NEUROLOGICAL DEFICIT. NO CERVICAL SPINE XRAY DONE, PHYSIO ADVISED.
The practice notes indicate Mr Mecavin was seen by another doctor on 25 May 2016 and that he indicated a history of right loin pain and on examination was tender right lumbar, full lower back flexion and Celebrex prescribed 200 mg one daily.
The Rudloc Road medical notes also contain entries in 2016 including 7 November 2016 with a note that Mr Mecavin gave a history of 'low back pain … nil radiating … not working at present'.
On 20 April 2017, Mr Mecavin saw another doctor at the practice and attributed his low back pain to the First Accident in November 2014 and advised he had not put in a formal claim. According to the practice note, Mr Mecavin asked if he could claim and was advised of the relevant information and contact details of the defendant's insurers. At the time he was advised it was likely the lower back pain was 'mechanical' and to take simple analgesia.
The Rudloc Road medical notes contain an entry that Mr Mecavin saw Dr Patricia Nyaung on 15 May 2017. The reason for his attendance was described as 'neck back pain'. Dr Nyaung was informed, according to the note, that Mr Mecavin experienced a back‑end crash about three years earlier and as a result of a low impact injury has suffered 'neck pain and back pain since'. Dr Nyaung saw Mr Mecavin again on 5 July 2017 at which time, according to her notes, he kept 'telling me that neck pain was from the motor vehicle accident in November 2014'. She recorded at the time that she informed him that any pain was not directly related to the incident and that, in her opinion, the 'neck pain and osteo spondylosis is the degenerative spine disease not caused by the single MVA … but he is not happy'.
None of Mr Mecavin's treating general practitioners, and in particular, Dr Nyaung recalled by Mr Mecavin to give evidence in support of his claims. It was reasonably suggested by the defendants that this was because her evidence would not support any causal link between the various complaints of pain and the accidents. As Mr Mecavin is self‑represented, I do not draw an inference pursuant to Jones v Dunkel (1959) 101 CLR 298.
In any event, Dr Silbert did take into account Mr Mecavin's general practitioners' notes as part of the history for the purpose of forming his opinion as to whether a soft tissue injury was suffered by Mr Mecavin as a result of either incident. Dr Silbert's evidence was:
… It's the history, it's the examination, it's the whole circumstances that lead one to conclude, if someone reports symptoms, what is the temporal and other relationship to the motor vehicle accident? I was strongly influenced by the trauma potential of the accidents.

It follows both actions must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MD
Associate to Judge Stevenson
4 MARCH 2022