Mohammad v Richards - [2000] TASSC 55

[2000] TASSC 55

CITATION: Mohammad v Richards [2000] TASSC 55

PARTIES:  MOHAMMAD, Nazar
  v
  RICHARDS, Bob

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  201/1994
DELIVERED ON:  30 May 2000
DELIVERED AT:  Hobart
HEARING DATE/S:  5, 6, 7, 10, 11, 12 May 1999 and 3 May 2000
JUDGMENT OF:  Crawford J

CATCHWORDS:

Damages - Particular awards of general damages - Tasmania - Back injury - Disc prolapse at L5/S1 level - Male taxi owner/operator aged 34 (42 at judgment) - Significant level of deliberate exaggeration of symptoms - $238,000 (including $35,000 general damages, $70,000 past loss of earning capacity and $85,000 future loss of earning capacity).

Aust Dig Damages [61]

REPRESENTATION:

Counsel:
             Plaintiff:  C N Dockray
             Defendant:  S J N Brown
Solicitors:
             Plaintiff:  C N Dockray
             Defendant:  Clarke & Gee

Judgment ID Number: [2000] TASSC 55
Number of paragraphs: 88

Serial No 55/2000
File No 201/1994

NAZAR MOHAMMAD v BOB RICHARDS

REASONS FOR JUDGMENT CRAWFORD J
30 May 2000

Upon the basis of the civil standard of proof, that of probability, I find that the plaintiff has substantially, deliberately and untruthfully exaggerated the effects of his back injury to medical practitioners and the Court. I will explain why I make that finding later, but I state it now as a preliminary to addressing the evidence concerning the accident. I have concluded that I should be particularly cautious about accepting the plaintiff's version of events unless there is adequate corroboration of it.

There is no dispute that at about 6pm on Friday, 19 June 1992, the plaintiff was standing in the driveway of a Mobil service station at the corner of Invermay Road and Forster Street, Launceston, when he was struck by a taxi cab being driven in reverse by the defendant. Although denied on the pleadings, there is also no dispute that the collision was caused by the defendant's negligence. The defendant's counsel made no submission to the contrary. What are in dispute are the injuries and damages suffered by the plaintiff as a consequence of the collision. One of the matters relevant to those issues concerns the nature and violence of the collision and whether any of the plaintiff's injuries were caused by a fight between the plaintiff and the defendant consequent upon the collision.

I will deal first with what the plaintiff has said about the collision. It was his evidence that he drove his own taxi into the service station and pulled up to a gas bowser. A service station attendant, John Usher, commenced to put gas into the taxi's tank. The taxi was on the eastern side of a row of bowsers. The plaintiff stood on the western side of the row and was facing north. Mr Usher was facing south. The men were chatting to each other, standing face to face. The plaintiff did not say how far apart they were. The taxi driven by the defendant was south of the two men and pointing south. The defendant reversed it in a northerly direction until its rear collided with the plaintiff, who was unaware of its approach.

There was substantial cross-examination of the plaintiff about the part of his body which was first struck by the vehicle and the extent to which his body was thrown forward by the impact. He maintained that he was first struck a little lower than behind the knees, at about the top of his calves. He said that he was struck immediately from behind and not at all from the side. He denied being struck in the region of his left hip. He described going up and his bottom hitting the top of the boot. At various points in his lengthy evidence about the matter he described his bottom and his back hitting the boot and it seemed to me that he was describing his lower back rather than his buttocks. On all versions of the accident the taxi came to a standstill shortly after hitting him. His evidence was that as a result of the impact he was flung forwards about one or two metres and fell towards the ground. In an effort to prevent contact with the ground he put out his hands. His left hand hit the ground and his right hand hit a bowser. He said that in that way his hands stopped him from hitting the ground, an answer which I interpreted as meaning that they stopped the upper part of his body hitting the ground. He said his hitting of the bowser with his hand was not very hard. Mr Usher helped him get to his feet.

In a statement to a police officer made three days later, the plaintiff said that the rear of the taxi hit him in the back of the knees and he fell onto the boot and then off the taxi onto the petrol bowser. In a signed statement obtained from the plaintiff by a licensed inquiry agent, Terrence Peter Radford, on 22 July 1992, some five weeks after the accident, the plaintiff stated that the taxi hit him about halfway between his knees and his hip and that he fell backwards onto the boot and then forward towards the bowsers. He said that the attendant stopped him from falling onto the bowser. In an answer to an interrogatory, sworn by the plaintiff on 7 August 1995, he said that the vehicle collided with his legs from behind, just above the knee, causing him to fall backwards onto the boot and to be then thrown forward towards the next bowser.

The plaintiff described the accident to a number of medical practitioners. The description noted or recalled by the doctors was not always the same but I do not regard that to be of great significance. Many of the doctors saw him for the purpose of diagnosing or treating his medical condition and most of them were not concerned to ascertain precise details of the accident. However, I record that Dr Jackson noted that the plaintiff told him that "the impact was around the upper leg region which caused him to be thrown up into the air such that he tumbled across the boot of the car and landed on the ground". That version was similar to the one noted by Mr Fettke, that being that "he was struck around the upper leg region and tumbled across the boot of the car and landed upon the ground".

The only other witness to the accident who gave evidence was Mr Usher. He confirmed the circumstances prior to the impact, as described by the plaintiff, and said that they were facing each other approximately two to three metres apart. He noticed the defendant's taxi come into the service station and commence to reverse towards the gas bowsers in their direction. He agreed that the reversing was not particularly fast or vigorous and that it was just an ordinary sort of reversing. He expected the taxi to stop, but it did not do so and it shunted the plaintiff in the back. He thought that the plaintiff was struck in his "lower back to buttocks" or in "that vicinity". He could not say whether the impact was to the plaintiff's back or side, or halfway between the two, not being able to see that because he was facing the plaintiff. He described the force of the impact as a fairly good shunt. The plaintiff might have been pushed forward a distance of somewhere between one and two metres. Mr Usher put out his hands to try and stop the plaintiff from falling down. He described the plaintiff as going down on his knee and getting up. He supposed that the plaintiff put his hands out in front of him, but he could not recall that having regard to the passage of seven years since the incident. He was certain that the plaintiff went down to his knee. He could not recall that the plaintiff hit a bowser. He said that "I wouldn't say he was thrown to the ground, it was a shunt to the ground". It knocked the plaintiff over but only so that he went down on one knee. Mr Usher agreed that he was not really sure about that.

Mr Usher is an important witness because he is the only independent one to give evidence of the incident. I was satisfied that he gave his evidence honestly. However, some of his evidence about the accident and the subsequent fight between the plaintiff and the defendant conflicted with a signed statement obtained from him by Mr Radford on 23 July 1992, approximately five weeks after the accident. I will deal with the fight later, but concerning the accident Mr Usher's statement said:

"I thought he was going to pull up in the lane that we were standing in, so that he could get his gas straight away after Mohammad was finished. The driver was turned around in the seat with his arm on top of the seat looking as he reversed, he could see us clearly. He slowed down when he was about 3 or 4 metres away, I carried on talking to Mohammad. The car just kept coming back, I shouted to Mohammad 'look out' and the taxi just ran into him. It didn't hit him hard enough to knock him over, but it did send him back a few feet. The taxi actually hit him on the side on his hip, on his left hip."

Differences between Mr Usher's version of the accident in his statement and his evidence are apparent. In his statement he said that he shouted to the plaintiff "look out", but made no mention of that in his evidence. In his statement he said that the impact did not hit the plaintiff hard enough to knock him over, although it sent him back a few feet, whereas in his evidence he said that the plaintiff was knocked down onto one knee. In his statement he said that the taxi hit the plaintiff on the side, on his left hip, but in his evidence Mr Usher said that the impact was in the vicinity of the plaintiff's "lower back to buttocks" and on being asked whether it was to the plaintiff's back or side or halfway between the two, he said that he could not see.

I deal next with the evidence concerning the fight between the plaintiff and the defendant as a consequence of the accident. There was evidence of previous bad blood between them, to the extent that the plaintiff expressed confidence that the defendant deliberately drove into him. He gave evidence that the defendant got out of his taxi and after abusive words were exchanged between them, the defendant punched the plaintiff in the side of the face. Thereupon the plaintiff punched the defendant a number of times and with sufficient force and effectiveness to put him on the ground. The plaintiff demonstrated two left jabs and one uppercut. He said that he did not bend or twist his back when throwing the punches. He explained that in his country of birth, Afghanistan, he had been a boxing champion and was trained in karate. He said that after the defendant fell to the ground he sat on the defendant, who was face down, and hit his face into the concrete. The plaintiff's statement to the police concerning the fight simply stated that the defendant walked up and punched him to the left side of the face, "we then had a scuffle with him & he fell to the ground". In the statement obtained from the plaintiff by Mr Radford he merely referred to the exchange of abuse and said that the defendant punched him on the side of the face and straight away he punched the defendant four or five times in the face until he fell to the ground.

Mr Usher's evidence was that the defendant got out of his taxi and the two men firstly had a "verbal assault" involving arguing and swearing at each other. "They then scruffed each other and fists were going around and Mr Mohammad gave him a couple of punches" and the defendant "went down to the ground". He was asked who threw the first punch and replied, "I'd say Mr Richards took a swipe at Mr Mohammad when they've grabbed each other". Mr Usher's evidence was that after the defendant went to the ground, the plaintiff sat on top of him, grabbed his head and rammed it once into the ground. They both got up. In cross-examination Mr Usher agreed with the following proposition from the defendant's counsel, that the fight "started off with chesting, would you agree, like footballers, verbally". It was unclear to me whether Mr Usher was agreeing that there was chesting or merely agreeing that there was a verbal fight at first. He said that he could not recall that once the two men were on the ground they were rolling around. He "wouldn't say it was a big massive brawl". There were some conflicts, however, between Mr Usher's evidence and the contents of the statement obtained from him by Mr Radford. After describing in that statement the collision between the taxi and the plaintiff, Mr Usher stated:

"Mohammad got into the other taxi in the passengers [sic] side and the two of them had a shouting, slagging argument. They both got out of the car and went to the front of Mohammad's car and started 'shirt fronting' each other. The other dude hit Mohammad with his fist (right) and then it was on. The two of them rolled around the ground fighting and ended up right over near the entrance before they broke up. They had a few more words, it was the other dude with the glasses having the most to say, like 'you black bastard, you should go back to Afghanistan' and that sort of stuff, then both took off."

Differences between Mr Usher's versions of the fight in his statement and his evidence include the following. In his statement he said that the plaintiff "got into the other taxi in the passengers [sic] side and the two of them had a shouting, slagging argument", following which they "both got out of the car and went to the front of Mohammad's car and started 'shirt fronting' each other", whereas in his evidence he made no mention of the plaintiff getting into the defendant's vehicle. It was not clear from his evidence whether he recalled "shirt fronting". In his statement he said that the plaintiff and the defendant "rolled around the ground fighting and ended up right over near the entrance before they broke up", whereas in his evidence he said that he could not recall them rolling around on the ground, mentioning only that the defendant went to the ground and the plaintiff sat on top of him, grabbed his head and rammed it once into the ground.

For reasons which were not explained, the defendant did not give evidence. A small number of his answers to interrogatories were tendered. In them he said that immediately after alighting from his cab he moved to the back of his vehicle to where the plaintiff was standing adjacent to the rear of the defendant's cab.

Counsel for the defendant submitted I should find that the taxi struck the plaintiff at a very slow speed and just as it was about to come to a halt. I so find, although what the very slow speed was I can make no finding. It was sufficient to force, shunt or push the plaintiff, (the term used is immaterial), a short distance, no more than about two metres. Counsel for the defendant submitted that I should find that the rear of the taxi, perhaps its bumper, struck the plaintiff in the region of his left hip/upper leg. I think it is likely that he was struck both by the bumper and the boot, the bumper hitting him in the leg at about the level of his knees and the boot hitting him further up at about the level of what could be referred to as his upper buttocks or lower back. I have no evidence of the height above the ground of material points, but what I have found is in my view most likely having regard to the common approximate heights of bumpers and boots of cars. I find that the plaintiff was struck from behind. The evidence does not establish that he was struck more on one hip than the other. The only evidence that he was is in the statement obtained from Mr Usher by Mr Radford. Mr Usher's oral evidence was that he did not know.

It was further submitted for the defendant that the impact was not sufficient to cause the plaintiff's back to hyperextend or to rotate to any significant degree and that it did not cause the plaintiff to be thrown onto the boot or into the air, to fall or slide off the boot or to fall to the ground. I find that as the taxi struck the plaintiff, he was in a relaxed state in the course of chatting to Mr Usher and he was not expecting to be struck. I have no doubt that as a result of being struck from behind without warning his spine was forced to arch backwards and probably to hyperflex and if, as was submitted for the defendant, the impact was more to one hip than the other, rotation of the spine is also likely to have occurred. The plaintiff would immediately have experienced a sensation of the lower half of his body being pushed forward and the upper half of his body going backwards. He did not claim that at one point he was lying right back on the boot, but I accept his evidence that his lower back or upper buttocks made contact with the boot. The taxi was in the course of pulling up and the plaintiff's next sensation would have been of being flung forward, away from the boot. His feet probably lost contact with the ground for a brief moment. He fell partly to the ground. I accept his evidence and find that he put his hands out defensively in front of him. Nothing turns on whether one hand hit a bowser (the defendant's counsel submitted that I should not find that it did). The plaintiff said that it did and I have no particular reason not to accept what he said. The plaintiff did not claim that he went fully down to the ground. He said that his other hand hit the ground and his hands therefore stopped him (meaning, I infer, his trunk and head) from hitting the ground. Mr Usher described the plaintiff as going down onto one knee and he could not remember what happened to the plaintiff's hands. Their versions are compatible.

It was urged by counsel for the defendant that I should find that immediately after the impact "the plaintiff did the following things; that he went directly and briskly to the defendant's driver's side door, he opened the door of the defendant's motor vehicle and put his upper body, at least, into the defendant's cab in the driver's seat area" and that the two men then argued inside the cab. Why those matters were regarded as important to the defendant's case is not clear to me. However, I find that the plaintiff did not put any part of his body inside the defendant's taxi. He said he did not, Mr Usher said he did not and the defendant's answer to an interrogatory suggests that he did not. The only evidence to the contrary is in the statement obtained by Mr Radford from Mr Usher. In it the statement was made that the plaintiff got into the passenger's side of the taxi (not the driver's side as put in cross-examination and urged upon me by the defendant's counsel). The preponderance of evidence is that the plaintiff did not get into the defendant's taxi. The unexplained failure of the defendant to give evidence supports an inference that he would not have given evidence contradicting that conclusion.

There is no doubt that while standing face to face the two men abused each other and commenced to fight. The evidence of the plaintiff and Mr Usher established that punches were exchanged and the defendant fell to the ground. There was no evidence of a substantial wrestling between the two men while standing. Mr Usher's evidence that the men "scruffed each other" and that they "grabbed each other" was not investigated or amplified. The evidence did not establish that the two men wrestled while on the ground. The plaintiff denied that there was any wrestling or rolling on the ground. Mr Usher gave no evidence of it, saying that he could not recall the men rolling around and that he would not say that it was a massive brawl. On both witnesses' versions the plaintiff sat on the defendant and banged his head on the ground once. Mr Usher was not questioned about the passage in the statement obtained from him by Mr Radford which said that "the two of them rolled around the ground fighting and ended up right over near the entrance before they broke up". It was his evidence that the argument between the two men took place on the "other side of Mr Richard's taxi, close to the shops and the workshop". He emphasised that it was not "a big massive brawl or nothing" and that the two men "weren't on the ground for some while at all". The conclusion I come to is that the preponderance of evidence supports a finding that there was no wrestling or rolling around on the ground. Once again, the unexplained failure of the defendant to give evidence supports an inference that his evidence about the matter would not have assisted his case.

The evidence does not establish a likelihood that in the course of the fight the plaintiff's spine hyperflexed or rotated to a significant degree. I accept the evidence of Dr Lyall, which was supported by other doctors, that in a fight tensed muscles tend to protect the spine and the likelihood of a spinal injury is less than in the case of an unexpected blow from behind when muscles are likely to be relaxed.

I do not accept the submission of counsel for the defendant that it is more likely than not that the plaintiff received a back injury in the fight rather than when struck by the taxi. I conclude that the greater likelihood is that the injury was caused by the impact from the car and not from the fight. I find that no other cause is reasonably open on the evidence. It is my finding that the impact from the car caused the plaintiff's back injury. It is possible that the fight increased the extent of the injury but in this regard, as was conceded by the defendant's counsel, the onus was upon the defendant to establish the distribution of damage, and that onus was not discharged. Middleton v Melbourne Tramway and Omnibus Co Ltd (1913) 16 CLR 572.

Before dealing directly with the injuries and damages caused by the defendant's negligent driving it is convenient to deal with the plaintiff's background. Almost all of the evidence about it came from him and it was not completely clear, particularly concerning the period between about 1973 and 1980. He was born in Kabul, Afghanistan on 18 August, 1957 and so was 34 years of age at the time of the accident and is now 42 years old. He is the second oldest of six brothers. His father was an architect in Afghanistan. He attended school in Kabul to grade 11 and said that he did not enter grade 12, the last year of schooling, because of the Russian invasion of Afghanistan. I presume that he was referring to the Russian supported overthrow of the monarchy in 1973. He claimed in evidence to be a good student. He learned a few English words at school but not many. Presumably because of the communist take-over of his country in 1973, he and his family fled into neighbouring Pakistan and then India. He said that he was aged about 16 or 17. He learned a little more English in India although he has learned most of it in Australia. He came to Australia in 1980, which suggests that he was in India for six or seven years. There was a discrepancy in his times for his evidence specifically accounted for only about two years of his time in India. His evidence that he fled Afghanistan because of the Russian invasion could not be right because that did not occur until very late in 1979. He said that "we" (presumably he and members of his family) conducted a buying and selling business, travelling between India and Pakistan for two years dealing in items such as watches, calculators, cameras, stereos, televisions, cadamom and other things.

When holidaying in Goa in 1979 he met his future wife, Robyn, an Australian. They married in Nepal in 1980 and later that year he came with her to Australia. His religion is Muslim, but he has not strictly adhered to its principles since coming here. He arrived with no savings of significance. They briefly stayed with his mother-in-law at Smithton in Tasmania, perhaps for two or three months, and then moved to Alice Springs, because work had been arranged, and remained there for about two years. He worked at the local abattoir and did cleaning and gardening work. They left because some members of his family, who had remained in Afghanistan, determined to leave their country to escape the war and they wanted him to meet them in Pakistan and sponsor them for entry into Australia. He and his wife then spent about eight months in all in the sub‑continent, some of the time in Pakistan and some in India. Before returning to Australia they purchased clothing, jewellery and other items with the intention of using them as stock in a proposed retail business on their return.

It was the plaintiff's evidence-in-chief that in 1983 he opened a shop in Ludbrooks Arcade, Launceston, at least some of the stock being the items purchased in India. The business was unsuccessful and after a year he closed it. About $20,000, which had been spent on stock, was lost. He then had nothing, no home, business or savings. In his examination-in-chief he spoke mainly of the business in the first person, that is to say as if it was his own business. The correctness of that was challenged in cross-examination, particularly because records of his admissions to the Launceston General Hospital in March 1983 and September 1983 revealed that he was on sickness benefits. His admissions related to a back condition, with which I will deal shortly. When faced with the records that he was on sickness benefits, he explained that because of his back condition his wife was running the shop. Whatever was the true position, he accepted that the business was unsuccessful and a lot of money was lost.

He was unable to earn an income of substance therefore from the time he returned to Australia, possibly in early 1983, and he did not do so for at least two or three years, until late 1985 or 1986, when he said he purchased the Alexander Food Bar in Ulverstone. It was a takeaway food shop. His evidence of financial aspects concerning the business was vague and unclear, as was the case with much of his evidence. His wife was involved in the business. Her mother loaned much of the money needed to acquire it. That loan has not been repaid. It was interest free. The shop operated 14 hours a day, seven days a week. He and his wife worked in it, with employees. He said that it was a successful business and they operated it for a little under four years. During that time he bought a house at Turners Beach, he said.

In about 1989 the Alexander Food Bar was sold because it was taking up too much of their time. He and his wife had a son and the business prevented them having any time together as a family. To replace it they purchased in about 1989 The Fruit Palace, a fruit and vegetable shop in the main street of Ulverstone. The purchase was partly financed with a loan. It was an unsuccessful business, he said because of nearby competition, and it was closed after about a year. The income from it was insufficient to meet payments on a bank loan. He had purchased the freehold with the business and he retained that and from time to time has leased it when tenants have been available. He said that he lost about $50,000 or $55,000 in that business.

Concerning what next happened the plaintiff's evidence was once again vague and uncertain. He accepted that he may have been in receipt of social security benefits for a period of six to nine months until, in 1990, he and his family moved to Launceston and he purchased two taxis and their licences for $105,000. He had two brothers living in Launceston, one driving a taxi and the other operating a takeaway shop. To purchase the business he borrowed $110,000 from a bank. He sold the house at Turners Beach and purchased a house at Swan Bay for $92,000. He had been operating the taxi business for about two years when he suffered the accident which is the subject of this action, on 19 June 1992. A fact which was agreed at the resumed hearing earlier this month was that he was in partnership with his wife.

I deal next with the evidence of back problems suffered by the plaintiff prior to the accident. In his evidence-in-chief he said that when in India (1982 and possibly into 1983) he injured his back in the course of diving into water from a platform. He suffered great pain. (In cross-examination he said the injury occurred probably about a week before he left India.) Some massage helped but not much. On the aircraft journey to Australia the pain worsened to the extent that he was in agony and could hardly walk. He went straight to the North Shore Hospital in Sydney where some x-rays were taken and he was told that the problem should be all right with rest. He then came to Launceston and spent about four or five days in the Launceston General Hospital, where he was treated by an orthopaedic surgeon, the late Dermot Morgan. He also had some acupuncture in Ulverstone. He said that his back got better over a period of roughly 14 or 15 months.

By laborious cross-examination, counsel for the defendant was eventually able to establish that the plaintiff's back condition caused him much greater difficulty in 1983 than he had disclosed in his examination-in-chief. I will summarise the result of the cross-examination and will also refer to the Launceston General Hospital's records. The plaintiff cannot remember whether he was admitted to the Royal North Shore Hospital as an inpatient, nor can he recall what treatment he received there or whether any drugs were prescribed. He then flew to Launceston and within a few days (he cannot remember how many) he was admitted to the Launceston General Hospital. The records of the Launceston General Hospital reveal that he was admitted from 21 March to 28 March 1983. The history given by him was recorded as a suffering of low back pain and left-sided sciatica for three months. The onset of back pain was noted to have occurred "out of blue" with "no precipitating factors", which does not accord with his evidence that it was caused by a diving accident. The recorded history stated that the back pain was associated with pain down the back of his left leg to the ankle, with a feeling of weakness in the leg but no numbness. He had been resting in bed with some improvement but was unable to stand for any length of time. An x-ray of his lumbar spine showed mid-lumbar scoliosis concave to the right with a compensatory tilt of the sacrum but no other lesions were seen. He was placed in traction and given medication consisting of Valium, Panadeine, Naprosyn. At his own request he was discharged on 28 March with an arrangement made that he return one week later for a myelogram. There is no record that he did so. It was the plaintiff's evidence in cross-examination that his condition at the time of his admission was bad enough to prevent him from doing anything. He accepted that he was in receipt of sickness benefits at the time but he was unable to say for how long he had been in Launceston since his return from India. He appeared prepared to accept that he may have been back for a number of months before his admission to the hospital. He agreed that he was suffering from low back pain and left leg sciatic pain then and he also suffered pain of that nature following the accident on 19 June 1992, but he maintained that the pain since the 1992 accident has been much worse. He also gave evidence that he was admitted as an inpatient to a hospital at Latrobe, possibly for three or four days, because he was suffering from the same problem. He was unsure but thought the Latrobe admission was prior to his admission to the Launceston General Hospital.

The plaintiff claimed to be unable to remember any other period of hospitalisation for his back condition in 1983. However, the records of the Launceston General Hospital establish that he was readmitted from 29 September until 5 October 1983, once again under Mr Dermot Morgan. He was noted as having a 10 month history of back pain with left leg pain. A myelogram was carried out and a diagnosis was made of left L5 nerve root compression probably from a small disc prolapse. The surgeon felt that his symptoms were not bad enough to justify having a laminectomy and suggested further rest and the wearing of a light back support with a hope that his symptoms would gradually settle with the passage of time.

As mentioned earlier, the plaintiff said that his back got better over a period of roughly 14 or 15 months. He said he received treatment from a chiropractor and had a lot of acupuncture in Ulverstone. The acupuncture fixed him. He played soccer for about six months with Juventus Soccer Club in Prospect. He moved to Ulverstone (in about late 1985 or 1986). However, while operating the Alexander Food Bar he suffered further with his back and consulted a general practitioner, Dr Anthony Lyall, who practised two or three doors away from the shop. After that he had no further trouble from his back until the accident on 19 June 1992. His evidence about that was corroborated by Dr Lyall who said that on 12 August 1986 he treated the plaintiff for an episode of left sciatica which settled with conservative treatment. A lumbar spine x-ray report obtained by Dr Lyall on 13 August 1986 noted merely a slight scoliosis concave to the right but otherwise no vertebral or disc abnormality. Dr Lyall said that as the plaintiff had a takeaway food business some two doors from his surgery in Ulverstone and later a fruit and vegetable business, he was able over a number of years to observe the plaintiff's work practices, which involved heavy lifting. He did not observe any residual disability from a previous injury. Dr Lyall only saw the plaintiff once for the back problem on that occasion. He saw the plaintiff for other complaints on 19 August and 1 September 1986 and on other occasions until the plaintiff left Ulverstone and believed that the back injury and sciatica had completely resolved.

That the plaintiff suffered from no obvious back problem over a period of time prior to the accident was corroborated by Mr John Gregg who sold the two taxis and their licences to the plaintiff and who operated the radio base used by the plaintiff's taxis. He gave evidence that the plaintiff came to him every Monday to pay a radio fee so that he could continue to run his cabs through the base. Mr Gregg described the plaintiff as a good worker who spent many hours in the cab, mainly as a day driver. He regarded the plaintiff as having a stocky and solid physique and as being a strong man. He was not aware that the plaintiff was suffering any physical disability prior to him being injured in June 1992.

The plaintiff's evidence-in-chief was that as soon as the incident at the service station had ended, he paid for the gas and sat in his taxi. He decided to drive to his brother's shop, which was nearby, to have a cup of tea and calm down. Once he was in the taxi he started to feel pain in his back but did not think it was serious. However, at his brother's shop the pain was too much for him to sit. His brother gave him a massage. He had been planning to drive the taxi all night but instead decided to go home because of the pain. It was put to him in cross-examination that he told medical practitioners Dr Michael Jackson and Mr Gary Fettke that notwithstanding that he developed immediate low back pain when he got into his taxi, he drove it for a few hours but then had to stop work because of increasing pain in his lower back. He did not deny telling the doctors that, saying that he could not remember what he told them and that it was possible that he did try to work for a few hours, although that was not his memory.

It was his evidence that on the next morning, a Saturday, he could not move much and there was a lot of pain. The pain he first suffered following the incident was in the lower back and within a few days or weeks pain developed in the left leg and between the shoulder blades. As the pain was getting worse, he consulted a general practitioner, the late Dr David Hutchinson, on 20 June 1992, the day after the incident. He was prescribed a pain killer but the pain got worse. He was unable to work over the weekend. He saw Dr Hutchinson again two days later. An x-ray report of 25 June 1992 stated that there was minimal lumbar scoliosis convex to the left side and a CT scan on 3 July 1992 stated that no abnormality was seen at L3/4 disc level; there was minor left posterolateral protrusion of the L4/5 disc into the inferior aspect of the left L4/5 intervertebral foramen; protruding disc material was noted in the left anterior aspect of the spinal canal with a slight thecal deformity; a posterior right paramedian protrusion of the L5/S1 disc was also noted with evidence of thecal impingement; and apart from slight osteoarthritis in facet joints at the L5/S1 level no other vertebral disc or joint abnormality was seen. The conclusion of the radiologist was that there was a small left posterolateral protrusion of the L4/5 disc and a small posterior right paramedian protrusion of the L5/S1 disc.

On Dr Hutchinson's referral the plaintiff saw a neurosurgeon, Mr Liddell, on 10 August 1992. Mr Liddell thought the CT scan difficult to interpret but there appeared to him to be a significant posterior (left greater than right) disc herniation at L4/5. He suggested hospitalisation for strict bed rest and traction but the plaintiff rejected that, expressing concern about the possibility of surgery and a wish to proceed with acupuncture and chiropractic treatment. A lumbosacral MRI scan that day indicated a moderately large central and left paracentral disc herniation at L4/5 compromising the plaintiff's left L5 nerve root. Not wanting an operation and hearing that his previous general practitioner, Dr Lyall, had moved from Ulverstone to Beaconsfield, no great distance from where the plaintiff lived at Swan Bay, he consulted Dr Lyall and has been his patient ever since. They determined on conservative treatment and the plaintiff attended a chiropractor, Mr Jesse, for about six months and underwent acupuncture. There was a gradual improvement in his condition. On 18 March 1993 he told Mr Liddell that the situation had improved approximately 60 to 70 per cent since he had seen Mr Liddell the previous August. He reported that he continued to experience discomfort in the middle of his low back and in the region of his left buttock, the latter being particularly aggravated by prolonged sitting to the extent that he did not feel capable of resuming his duties as a taxi driver. Mr Liddell thought there was a reasonable chance of him being able to resume taxi driving if he elected to undergo surgical intervention, in the form of a microdiscectomy procedure, and expressed the view that it was likely that the plaintiff's incapacitating discomfort would continue for a prolonged period, if not indefinitely, in the absence of successful surgical intervention. On 30 March 1993 Dr Lyall reported that the plaintiff's injuries had improved considerably and he was pain free mostly. However, he was limited as to the physical tasks he was able to perform and Dr Lyall said he should not lift any heavy objects or sit for extended periods. Further chiropractic treatment and a rehabilitation exercise program was planned for at least a further six to 12 months. Dr Lyall was against surgical intervention and thought that the steps the plaintiff had been taking with regard to treatment were reasonable. In cross-examination the plaintiff did not accept that so far as pain relief was concerned, he had improved as much as Mr Liddell and Dr Lyall portrayed, although he accepted that he had pain free periods for up to 30 minutes in duration. He agreed, however, that he was a lot better than before.

It was because he did not want an operation, according to the plaintiff, that he decided to attempt taxi driving again. However, it was an unsuccessful return to work which lasted for only two weeks. Unable to cope with work because of the pain he reluctantly determined to have the recommended surgery. I find that his decision was a reasonable one.

On 15 July 1993, he was admitted to St Vincents Hospital for a CT myelogram. The essential findings were of a left posterolateral disc prolapse at the level of L5/S1 which Mr Fettke felt fitted the clinical picture. Mr Fettke was of the opinion that the plaintiff would benefit from decompression of the S1 nerve root on the left side, the aim of the procedure being to relieve his leg pain rather than his low back pain. Most of the plaintiff's complaints were of symptoms related to his radicular leg pain and Mr Fettke expected that it would greatly benefit from the surgical procedure. On 28 July 1993 he underwent a left-sided L5/S1 discectomy and nerve root decompression at St Vincents Hospital. Mr Fettke's evidence was that in the first three months following surgery the plaintiff had a significant improvement in his leg pain. While in hospital he was in no discomfort whatsoever in the lying position and when walking. However, after two weeks he complained of a minor degree of recurrence of his symptoms with prolonged standing. On 10 September 1993 the plaintiff reported to Mr Fettke that he was walking regularly without any pain but had some pain in the left buttock when sitting, which very occasionally travelled down the posterior thigh to the knee. He continued to be reviewed regularly by Mr Fettke. On 2 December 1994 he informed Mr Fettke that he had not changed at all over many months. Mr Fettke noted that his major pain was then in the interscapular region rather than the lower back and he still had some persistent pain into the left buttock and down the left leg together with some left groin pain. He claimed to be walking regularly but was unable to do much in the way of activity and had not returned to taxi driving. Mr Fettke concluded, following an examination of the plaintiff, that his symptoms had remained racalcitrant to surgery and to appropriate conservative therapy. There were ongoing symptoms which had not settled and further pain had developed in the interscapular region. The symptoms having continued for nearly two years, Mr Fettke expected the situation to remain relatively static for a long period of time. He felt that the ongoing back pain and leg pain was probably due to some fibrosis around the neural content.

One question which has arisen is the relationship between the plaintiff's 1983 back problems and his injury and symptoms from the 1992 accident. Low back pain and left-sided sciatica have been common to both although the plaintiff's evidence was that his pain since the 1992 accident has been much worse than it was in 1983. The evidence established that his suffering in 1983 must have been severe to warrant the hospitalisations and procedures carried out then. The orthopaedic surgeon, Mr Morgan, diagnosed in 1983 a L5 nerve root compression, probably caused by a disc prolapse, related to the L4/5 level on the left side and not to the L5/S1 level on the left side where Mr Fettke's investigations revealed the predominant abnormality existed following the 1992 accident. Mr Fettke said that the films considered by Mr Morgan are no longer available and with the use since 1983 of CAT scanning in conjunction with myelograms it is now far easier to determine the pathological level. It is possible that Mr Morgan's opinion as to the level of the problem was erroneous but Mr Fettke could not express a firm opinion about that. The fact that the position of the plaintiff's pain in 1983 and again since 1992 has predominantly been the same suggests to Mr Fettke that there is probably some relationship between the 1983 problem and the 1992 injury. I so find. But I also find that the plaintiff was not suffering significant pain and discomfort in his back and leg between about 1984 and the 1992 accident, apart from a brief episode in 1986 when he was treated by Dr Lyall at Ulverstone. It is probable that in 1992 he was more susceptible to injury because of pre-existing pathology in his back at about the L4/5 and L5/S1 level.

The plaintiff's evidence causes me to find that his marriage was not a happy one. He tended to downplay that in his evidence-in-chief but cross-examination revealed a number of separations. In December 1984 he was treated at the Launceston General Hospital for injuries noted to have been suffered in a fight at his ex-wife's home, which indicates that he was living separately from his wife at the time. He agreed that they had separated two or three times and on one occasion she went to China for seven or eight months. His evidence was that they have had arguments from time to time, it had been hell from time to time and sometimes very good and they had compromised because of their children. However, in 1994 they separated for three years. For a few months he lived with a brother in Lilydale and with another brother in a Launceston flat and in a house at Birch Avenue, Newstead. He then moved to Ulverstone for five months and in 1997 returned to live with his wife and three children at Swan Bay. They were living in the same house at the time of the trial although they have been divorced. The evidence does not establish that the defendant's negligence caused marital difficulties for him. I note, and it was surprising, that the plaintiff did not call his wife, brothers or any other relatives or friends to give evidence in support of his case. There was no explanation for the failure to do so and it gives rise to an inference that they would not have assisted his case to the extent that he would prefer.

The nature of the plaintiff's claims of pain and suffering can be found in his answers to interrogatories in August 1995. He claimed to continue to suffer severe pain in the lower back radiating into the left leg and into his shoulders and hand; to suffer pain at all times when standing, becoming unbearable after approximately 30 to 40 minutes; to suffer pain at all times when walking, being able to walk only short distances and very slowly; to be unable to run at all; to suffer pain at all times when sitting, the pain becoming severe after about 10 to 20 minutes; to be able to drive a car for about 20 minutes but then need to stop and get out or lie down; to suffer severe pain upon any bending; any lifting caused pain; to be unable to play with his children; to be depressed and anxious and felt that he had suffered a change of personality; to have difficulty doing simple things such as putting on shoes or reading a newspaper; to suffer loss of sleep, to be in constant discomfort; to be unable to have family outings involving driving and walking; to be severely restricted in gardening, being able to do light jobs very slowly. His oral evidence was that his condition varies. Some days or times it is worse, others it is better. It is worse in the mornings. On being asked where his major pain is he referred to pain between his shoulders, in his lower back, across the bottom and in the left leg going to the knees, ankle and heel. The pain is not in his hand, evidence which appeared to contradict what he said in an answer to an interrogatory. He said that coughing causes pain in his back and sexual intercourse makes him scream because of the pain.

I made notes of how he presented himself in Court. On the first day of the trial he walked to the witness box with a pronounced limp and with the assistance of a walking stick, apparently suffering. He had a pained expression on his face but often not when distracted. The appearance of suffering tended to disappear when concentrating on his testimony. He stood throughout the giving of his evidence, which took many hours, almost always with each hand on the witness box rail for apparent support, often with each hand out to the side as if needing to support himself, but he did not always present with the appearance of suffering. Throughout the first two days of the trial he stood at all times. On the third day he used a chair for the first time. It had a back and two arms and from the commencement of the day until 3.08pm he lay back in it, substantially slumped or slouched, keeping that position without variation (except perhaps during adjournments when I was not in Court). At 3.08pm he stood until 3.29pm when he once again reclined in the chair. On the fourth day of the trial he hobbled into Court on a stick and then lay back in a chair. I noted on the fifth day of the trial that the day commenced with the plaintiff sitting in a chair leaning back and to the right, but by 10.20am his bottom had slid forward until he was lying back in the chair, holding his stick. At 11.15am he got up and hobbled with his stick to the press box, against which he stood leaning, as he did for much of the trial when not in the witness box. At 11.40am he moved back and leaned against the wall of the Court with his right hand on the press box for apparent support. On the commencement of the afternoon session at 2.15pm he was lying back in a chair, again holding his walking stick, until 3pm when he got up and used the press box for support along with his walking stick. Through the final day of the trial he was either lying back in a chair or standing next to the press box, using it, the wall and a stick for support.

Licensed inquiry agents kept the plaintiff under surveillance on a number of days and video tapes of his activities were received in evidence. They showed him on about 11 days between 24 October 1995 and 16 August 1996. I accept the evidence of Mr Terrence Radford, the proprietor of Tas Loss Assessors, that the tapes show all of the plaintiff's activities that might have been material. Thus, if he could be filmed when walking, the film of him doing so is in evidence, limp or no limp.

The video tapes show the plaintiff approaching and leaving the rooms of three medical practitioners to whom he was sent by the defendant for examinations and reports. The practitioners were Dr E D McIntyre of Launceston, Dr Southby of East Devonport and Dr T C Stewart of Lenah Valley. The rest of the vision on the tapes is of the plaintiff in the streets of Launceston and his brother's shop in George Street. The tapes reveal a dramatic difference between the presentation of the plaintiff when attending upon the medical practitioners and when going about his normal day to day activities. When attending on Dr McIntyre on 7 February 1996 he hobbled to and from the doctor's rooms, giving the appearance of being in considerable pain and with his hands on the back of his hips. I accept the evidence of a licensed inquiry agent, Mr Michael Dunn, who filmed the plaintiff on that occasion, that later that afternoon in the city of Launceston he was moving far more freely, although Mr Dunn accepted that there may have been a small limp. When he visited Dr Southby on 15 April 1996 he got out of his car gingerly, walked very slowly to the building like an old man, giving the appearance of being in obvious pain, and later returned to the car in a similar fashion. A film of him in Launceston later that day showed him walking slowly with a limp, but not with the apparent agony of earlier in the day. The film of him attending Dr Stewart's rooms on 21 June 1996 showed him hobbling on a stick, much as he presented at the trial and then walking very slowly along a street with no stick, holding onto a fence for support with one hand and the back of his hip with the other hand. His progress and movements gave the appearance of considerable pain.

The films of the plaintiff in the streets of Launceston on various days sometimes showed him walking with a slight limp but on other occasions there was no sign of a limp, pain or suffering. An example was on 17 February 1996, when he was assisting his brother move into a shop in George Street. He walked back and forth along a lane, to and from the shop, sometimes empty-handed, sometimes carrying objects such as a chair or trays. On one occasion he helped another man carry a stack of chairs along the lane, apparently without effort. He can be seen getting into a car quickly and easily. On two occasions he jogged down the lane. Late at night, following the smashing of a window in the shop, the film showed him sweeping up glass, bending, stooping and otherwise moving about without apparent discomfort, notwithstanding that he had been up and about the previous day and that night for a period probably exceeding 15 hours. A film showed him in his brother's shop on 15 August 1996 sitting upright in a straight-backed chair for long periods of time. The camera was remote from him and he was in the back room of the shop and I think likely to believe he was not under observation at the time. In the Court and when attending on most of the doctors who gave evidence, he presented as being unable to sit upright except for very brief periods. Another tape, for 16 August 1996, showed him in the course of walking from his brother's home at Birch Avenue, Newstead into the city of Launceston, a distance I estimate to be approaching three kilometres. When at the intersection of Elphin road and Lyttleton Street, about one kilometre from the city, he was walking with no obvious limp. However, by the time he reached the intersection of Brisbane and Tamar Streets, one block from the city centre, a limp had developed.

The evidence of medical practitioners established that he almost always presented to them in a state of considerable suffering, unlike his portrayal in the films when not attending doctors' rooms. For example, Dr Lyall, who had seen him monthly since 1992, said that apart from short periods on a couple of occasions he had never sat down in the surgery, instead always standing, basically leaning on a counter or desk or up against a wall for support. Mr Liddell referred to finding him lying on the floor of the waiting room.

The plaintiff had explanations for the considerable variations between his relatively easy movements as recorded on videos and his apparent agony and suffering when attending at the trial and on medical practitioners. He accounted for many of the occasions of relatively free movement as attributable to having taken a cocktail of Pethidine, alcohol and marijuana. I am unable to accepts his claims. On none of the videos did he appear to be drunk or stoned as I would have expected on at least some of them. Furthermore, it is highly unlikely that he would have driven a car, as he did on more than one occasion, if he was significantly affected by a mixture of drugs. He also claimed that he had his good and bad days, that his condition varied from time to time and that he gained relief from exercise and from baths and saunas. I accept what he said about that but not that it accounted for the dramatic variations in his presentations. I simply did not believe his claim that his apparent extreme suffering at the trial and when attending doctors could be explained by the fact that he had substantially avoided taking drugs before those occasions.

The preponderance of medical evidence was that the plaintiff exaggerates his symptoms but there was no consensus as to whether he did so consciously or subconsciously. Dr Lyall did not consider it a possibility that the plaintiff had for a considerable time significantly exaggerated his symptoms, instead regarding the plaintiff as genuine in all respects. Mr Fettke noted in December 1994 "an abnormal illness behaviour". He did not attribute it to malingering or conscious exaggeration, but to subconscious deception. Dr Jackson gave evidence that the plaintiff's presentation in the surgery was always a disastrous one. He concluded, having seen a video tape of the plaintiff, that obviously his symptoms are variable and at times may be minimal. Seeing the video caused Dr Jackson to significantly change his opinion concerning the extent of the plaintiff's disability and the doctor accepted that it is possible that the plaintiff was consciously misleading him. Dr Ulman did not believe that there was conscious exaggeration of symptoms but thought instead that there was a subconscious exaggeration of a genuine and significant physical and mechanical problem. Dr Stewart believed there was an exaggeration of symptoms and that the plaintiff was more able than he maintained or would have the doctor believe. But the plaintiff was not necessarily dishonest or deceitful. Professor Einoder concluded that the plaintiff's mental processes, secondary to a chronic back problem, had taken over and that it was a situation of perhaps treating the mind rather than just the spine. The plaintiff was significantly exaggerating the affect his spinal problem had on his performance. His performance on video was inconsistent with his activity level when examined by the Professor, who declined to express an opinion on whether he was dishonest or consciously exaggerating. Dr McIntyre concluded that there was a considerable inconsistency between the plaintiff's presentation to him and the videos of his activities away from doctors' rooms. He said that the "surveillance only confirms my view that this man is grossly exaggerating his impairment and that he has attempted to mislead me on the state of his clinical condition". Two psychiatrists gave evidence. Dr Sale believed that the plaintiff subconsciously exaggerated when he needed to communicate his illness to others, such as to doctors and to the court, and that he communicated his distress in an extravagant way. Dr Sale accepted that the plaintiff presented symptoms which were objectively disproportionate to his pathology, but attributed that to a subconscious distortion of his symptoms. He accepted, however, that there was a possibility that the plaintiff was consciously exaggerating his symptoms. Professor Jones found that there was a strong suggestion of an appreciable component of conscious exaggeration of pain and restrictions in movement, although some subconscious exaggeration could not be excluded. He regarded the plaintiff's presentations as dramatic and artificial, and I came to the same conclusion. A psychologist, Miss Harris, conducted a number of tests and concluded that the plaintiff was genuine about his complaints. However, Professor Jones threw doubt on the effectiveness of the tests and I did not find Miss Harris a convincing witness. She tended to take refuge in the tests themselves rather than present a convincing opinion of her own concerning the plaintiff's genuineness.

The only non-professional witness called by the plaintiff to corroborate his claims of disability and suffering was one of his Swan Bay neighbours, Mr Desmond Judge. He seemed an honest witness. It was his evidence that he came to realise that the plaintiff "had had a terrible accident and was off crippled". When asked what observations he had made of the plaintiff he said that the plaintiff pottered around his garden with his stick and sometimes supervised his children. Mr Judge would not see the plaintiff for very long. He had not seen him undertake any physical activity. Hard work such as chopping wood was done by his wife, so far as Mr Judge had observed. He had never seen the plaintiff "in a disabled state", that evidence being difficult to understand in light of his other evidence that sometimes the plaintiff looked more "crippled" than other times, which he assessed from the slowness of the plaintiff's walk. He said that the plaintiff always had a stick and that his symptoms varied from time to time. The plaintiff was not using a stick prior to separating from his wife for a period of about three years (from 1994) but he had done so since his return about one and a half years before the trial. In many respects Mr Judge's evidence was not specific. He said that prior to the plaintiff separating from his wife they had become quite friendly and for about a month or so the plaintiff assisted him to re-pot orchids, Mr Judge sitting and the plaintiff standing to do it. Mr Judge said that the plaintiff would do it for about 20 minutes or so "then it started to get a bit much for him".

I have no hesitation in concluding that the plaintiff suffered a significant injury to his back because of the defendant's negligence. It resulted in a left posterolateral disc prolapse at the level of L5/S1 and proved incapacitating and painful. He wished to avoid surgery and initially received conservative treatment from a chiropractor in addition to acupuncture, physiotherapy and prescription drugs. Although there was an improvement and a substantial reduction in the level of the pain, there was nevertheless a significant residual disability 12 months after the accident. He at first rejected the suggestion of surgery which was made by the neuro-surgeon, Mr Liddell, but eventually agreed to undertake it upon the recommendation of the orthopaedic surgeon, Mr Fettke. I will not repeat the evidence of the nature of the operation. At least to some extent it was unsuccessful and the plaintiff has continued to suffer from pain in his lower back, left buttock and left leg. He has complained of interscapular pain but there is insufficient evidence to justify a finding that it was caused by the accident. The extent of his pain, suffering and disability is difficult to assess because he has consistently exaggerated his symptoms to medical practitioners and in his presentation to the Court. If he had called a number of lay witnesses to whom he was familiar the task of making findings about those matters would almost certainly have been made much easier. Mr Judge's evidence supported his case to some extent, but in many respects it was not specific and vague.

I find that the exaggeration of his symptoms has been deliberate and not subconscious. I cannot believe otherwise, the differences between his presentations being so dramatic and unconvincing to me. His credit has been damaged as a result and bearing in mind that the onus rests on him to prove his case on the balance of probabilities, it is possible that my findings will be harsher to his side of the case than the truth. That is a risk that a litigant takes if he chooses to mislead.

I find that for most of the time from the operation until the trial he continued to suffer pain and discomfort to some extent. Prolonged standing and sitting aggravated it. Anything heavier than relatively light work also aggravated it. He has frequently been forced by his back condition to limp and although he has been able to walk up to three or four kilometres or so, it is likely that he has been restricted so far as long distances are concerned. His symptoms will continue and his condition may be regarded as chronic. After the passage of more than seven years, little improvement from hereon is likely. There is little chance that he will undergo further surgery. I am not persuaded that he needs to use a stick and presume that he uses one on occasions, for effect.

Special damages

Past hospital, medical, pharmaceutical and associated expenses including the cost of travelling for treatment

At the time of the closing addresses, the particulars of the plaintiff's claim included nothing in this regard, which may go some of the way explaining why little attention was given to evidence relevant to it. At the close of the defendant's case there were tendered into evidence statements of scheduled benefits certified by the Motor Accidents Insurance Board as having been paid to or on behalf of the plaintiff. The statements included items under this heading. One of the statements, dated 26 April 1999, revealed that $70,391.07 had been paid by way of scheduled benefits, other than by way of disability allowance. Inferring that he understood that the plaintiff claimed that sum, counsel for the defendant said that the defendant accepted that the various charges and rates of charges were reasonable but the defendant did not agree that all of the individual items making up that sum were reasonably, properly or honestly incurred by the plaintiff as a result of the defendant's negligence. The defendant's counsel submitted I should find that the expenditure (or some of it) was incurred as a consequence of the plaintiff's exaggeration of his symptoms or perhaps because of family and other unassociated problems he has had in his life. In particular, counsel for the defendant submitted that expenditure since 1994 was not reasonably incurred. Counsel for the plaintiff made no submissions about the matter in his closing address, and so the trial was concluded, so it was thought, without the plaintiff having informed the Court of anything concerning his claim for past hospital, medical, pharmaceutical and associated expenses.

When the hearing resumed earlier this month, a further and detailed certificate of scheduled benefits, dated 25 February 2000, was tendered. I will return to some of the details shortly. The certificates in evidence show that the great preponderance of expenditure was incurred by 1996 and only $1,564 of it was incurred thereafter. The plaintiff's counsel conceded it to have been "a remarkable and dramatic decline in expenditure".

It is provided by the Motor Accidents (Liabilities and Compensation) Act 1973, s27(1), that "if a liability has been incurred for the payment of damages to a person in respect of a personal injury the payment to that person of a scheduled benefit in respect of that personal injury shall, so far as it extends, be taken to be a payment in or towards the discharge of that liability, and the amount of those damages shall be reduced accordingly". At the hearing earlier this month, counsel for the plaintiff submitted that the effect of the subsection is that there must be added to the damages the total of the amount of scheduled benefits paid in respect of the plaintiff's injuries, as certified by the Board, following which that total should then be deducted from the damages. He submitted that the Court should not be concerned to engage in an inquiry concerning whether the expenses were reasonable or necessary. No authority was cited in support of the submission. I accept the submission of the defendant's counsel that the plaintiff had the onus of proving that expenses by way of hospital, medical and other similar items were necessarily or reasonably required in consequence of the plaintiff's injuries, before such items may be included in the assessment of damages. Once the total of the damages has been established it is then necessary to reduce the amount of that total by the amount paid by way of scheduled benefits in respect of the injuries. The words "so far as it extends", in subs27(1), should not be interpreted as meaning that the only payments of scheduled benefits which are to be deducted are those with respect to which there is an equivalent and identical amount as an item allowed in the assessed damages. I note that subs27(1) is similar to the provisions of the Workers Rehabilitation and Compensation Act 1988, s133(1) and it has always been my understanding that both provisions have a similar meaning.

I proceed therefore upon the basis that the onus was upon the plaintiff to establish that the various services and items for which expenditure was incurred were necessarily or reasonably required in consequence of his injuries. I have considered the details contained in the three certificates of scheduled benefits and have searched the transcript for evidence which supports the items. I had almost no assistance from counsel.

I allow $132 for attendances on Dr Hutchinson on five occasions between 20 June and 27 July 1992. He was the first general practitioner consulted by the plaintiff because of the injuries on 19 June 1992.

For consultations with Dr Lyall $3,835 has been claimed to 25 February 2000. He was the general practitioner consulted by the plaintiff after Dr Hutchinson. He consulted Dr Lyall from August 1992 once a month, on average. I consider the expenditure to have been reasonably incurred. It was plainly reasonable up until the major surgery on 28 July 1993. Ever since he has been prescribed a number of drugs including Panadeine Forte, Pethidine, Diazepam (Valium), Endone, MS Contin, Physeptone, Palfium and possibly others. At the time of the trial, Dr Lyall gave evidence of prescribing Panadeine Forte, Endone, Diazepam and Lovan. Although I find that the plaintiff has exaggerated his symptoms since late 1993, I am satisfied that he has required prescription drugs since he suffered his injuries and that an attendance approximately once a month on this general practitioner, has been warranted. I will therefore allow Dr Lyall's fees as claimed, adding to the date of trial $144 for a further four consultations since January last. A total of $3,979 will be allowed.

I disallow $123 claimed with respect to services provided by a Dr R P Cooper on 10 and 11 August 1992, because I can find no support in the evidence. $2,212 is allowed for Mr T D Jesse, a chiropractor, to whom the plaintiff was referred by Dr Lyall from 20 August 1992 until 30 June 1993, when it was terminated because Dr Lyall did not regard the treatment as efficacious. The claim for $150 for therapeutic massage by Barbara Viney in October and November 1992 is also allowed.

The claim for $339 for Mr J D Liddell is allowed. The plaintiff was referred to him. Also allowed is the claim for $2,575.50 for Dr G Fettke, an orthopaedic surgeon, to whom the plaintiff was referred and who treated him from July 1993 until January 1995. When the plaintiff was under Dr Fettke's care he had the July 1993 myelogram carried out at St Vincents Hospital followed by a discectomy and nerve root decompression at the same hospital. He was reviewed regularly by Dr Fettke and I am satisfied that the charges were reasonably incurred. The charge of St Vincents Hospital totalling $2,766.05 is also allowed, as are the claim for $300 for the anaesthetic services of Dr L Doughty which were rendered on 27 and 28 July 1993, no doubt in association with the surgery, the claim for $287 for Dr S Tredinnick, no doubt being associated with that surgery, and the claim for $132.75 for physiotherapy rendered by Margaret Archer (George Street Physio) between 27 and 30 July 1993. Also allowed is the sum of $119.80 charged by Launceston Pathology for services rendered on 15 and 27 July 1993, no doubt reasonably associated with the plaintiff's treatment at that time.

The claim for $390 for an Aero Swing provided by Tasmanian Sports early in 1993 is disallowed because there was no evidence to support it.

Dr Fettke reported that following the surgery on 29 July 1993 the plaintiff had very good relief of his leg pain while in hospital and was in no discomfort whatsoever in the lying position and with walking. However, after two weeks he claimed to have a minor degree of recurrence of his symptoms with prolonged standing. On 10 September 1993, when reviewed, the plaintiff claimed to be improving. He reported that he was walking regularly without any pain, but when sitting suffered some pain in the left buttock. Very occasionally it travelled down the posterior thigh to the knee but not beyond. However, thereafter he claimed a return to his pre-operative state and I am unable to conclude in the plaintiff's favour that a substantial part of his claimed suffering was not a result of conscious exaggeration. I find against him in that regard so far as concerns his condition since 1994.

The evidence does not establish that the sum of $1,840 was reasonably or necessary incurred for therapeutic massages from Mr John Young approximately eight times each month from 9 December 1993 until 19 May 1994. Nor am I satisfied with regard to J F H Chester in the sum of $825 for services between May and November 1994. There is no evidence to support a claim for $126 paid to Amed Supplies, apparently for some form of back support provided in March 1994, nor for a claim for $30 paid to Statewide Importers for an ortho-sole. There will, however, be allowed the sum of $3,786.50 paid to Northern Imaging Group (Drs Grant and Paech) for radiological investigations on various dates between 3 July 1992 and 5 September 1994, and also the claim for $475 charged by Hobart Medical Imaging Group (Rush Taylor) for an MRI on 10 August 1992. I have no hesitation about allowing that part of the claim which relates to radiology to and including July 1993. The subsequent radiology in December 1993 and March and September 1994 I regard as part of reasonably required investigations following the surgery in July 1993. Mr Fettke reviewed the plaintiff until December 1994 and his report dated 5 September 1994, which is in evidence, referred to the radiological investigations following surgery.

In 1995 the plaintiff undertook substantial investigation, hospitalisation and treatment which included the following. He consulted Dr M Jackson of the Hobart Pain Clinic on 11 January 1995. He was admitted to Calvary Hospital on 12 February 1995 and underwent pain assessment. He was seen by Dr R Turner (orthopaedic surgeon), Ms D Harris (psychologist), Dr N Lewinski, Mr J Liddell (neurosurgeon), Dr H Francis (rheumatologist) and Ms G Lynch (pain management sister). He underwent a lumbar myelogram on 27 February 1995 and a lumbar epidural on 7 March 1995 at Calvary Hospital. He was readmitted to that hospital on 1 May 1995 and a nerve root block was carried out under radiological control. On 19 May 1995 diagnostic lumbar discograms were carried out and he was referred to an orthopaedic surgeon, Mr Turner. Arising out of that course of investigation, hospitalisation and treatment was claimed $6,807.55 for the charges of Calvary Hospital for periods of hospitalisation, $1,455 for Dr Jackson, $924 for Dr Lewinski (I can find no evidence explaining Dr Lewinski's role), $150 for Dr Francis, $2,965.20 for radiological services provided by Hobart Medical Imaging Group on various dates between 23 February and 1 June 1995, $45.30 for Hobart Pathology, $150 for K Merse and A Fitzgerald (psychologists for whom, I presume, Ms Harris was employed), $80.25 for Kevin Corby Pharmacy, $217 for Mr Turner and $1,880 for St Helens Private Hospital (not clearly explained by the evidence but apparently for an epidural which Dr Jackson reported, perhaps incorrectly, was performed at Calvary Hospital). I disallow all of those amounts. I conclude that the course of investigation, hospitalisation and treatment was brought about because of the plaintiff's conscious exaggeration of his symptoms and that it is unlikely that any of the items of expenditure would have been incurred without it. I add that the evidence did not establish that the investigation, hospitalisation and treatment were beneficial.

The plaintiff claims $2,174 for the total of fees charged by Mr V V Nguyen. According to certificates of scheduled benefits paid, the sum was charged for services rendered on over 50 different dates between 26 October 1995 and 19 December 1996. I have been unable to find any mention of Mr Nguyen or the services in the transcript of evidence and the letters and reports which became exhibits. The claim therefore is disallowed. Also disallowed is $142 for the services of K Merse and A Fitzgerald, psychologists, described in a certificate of scheduled benefits as being for a consultation on 18 July 1996. I conclude from the report dated 20 August 1996 of Ms Harris, whom I presume to have been an employee of Merse and Fitzgerald, that the consultation was merely for the purpose of providing a report to the plaintiff's then solicitors, Williams Davies. The fee therefore forms part of the plaintiff's legal costs and out of pockets and is not a proper item for special damages.

Included in the plaintiff's claim are $1,788 for spa membership fees charged by Theogenes Health and Squash Club virtually continuously from 15 February 1993 until 11 April 1996 and $585 for membership fees charged by Aquarius Roman Baths from April 1996 until January 1997. There was evidence from the plaintiff that at a particular time it was his practice to have a bath at home in the morning and a sauna in the afternoon. He explained that he had the bath because the hot water helped him. He usually spent approximately an hour in the sauna to get a lot of heat, which somehow loosened his body and muscles and it made him more comfortable, and he would then swim as many laps as he could in a swimming pool. He said that the sauna and spa were helping him a lot and that Mr Fettke and every neurosurgeon, chiropractor and masseur told him that walking and swimming were most important for a back problem because those activities build up muscle around the nerves in the back and as a result less pain is suffered. He said that he was swimming every day and when the Roman Baths opened, which he found nice and warm with jets and spas, making him feel better, he transferred from Theogenes. The Motor Accidents Insurance Board was paying for his membership but he stopped claiming for it in 1997. He said that because he could not afford to pay for the membership he stopped attending and kept to having a bath at home and massages from his children. He made an obscure mention of the Supreme Court and I suspect payment of his membership fees at the Roman Baths were stopped by the Board and he had no choice but to give it up.

I have searched for evidence from medical witnesses which supported the plaintiff's claim for payment of the fees as part of his special damages. The only support I could find was in one of the reports of Mr Fettke, where he said that about two weeks after the surgery which was performed on 28 July 1993, he commenced the plaintiff on a walking and swimming program. I also note that Mr McIntyre reported that he was told by the plaintiff on 3 November 1994 that he was undertaking a daily trip from Swan Point to Theogenes where he spent several hours, most of the time in the sauna but with a little swimming. The plaintiff asserted to Mr McIntyre that it was the only time that he had any relief from persistent and agonising pain, and that he had ceased massages and physiotherapy because they did him no good. At that time Mr McIntyre thought there was evidence that the plaintiff was malingering to a degree. It is, of course, my finding that the plaintiff was consciously exaggerating his suffering and as a consequence of that he was exaggerating the need for treatment.

The plaintiff may well have enjoyed the sauna, spa and swimming pool but that alone cannot justify the allowing of the membership fees at the two establishments. I need to be satisfied that the incurring of those fees was reasonably or necessarily incurred as a consequence of his injuries. Mr Fettke's recommendation that the plaintiff commence a walking and swimming program, in August 1993, justifies some allowance for expenditure of this nature, but the evidence does not support a claim for such fees over a period of almost four years from February 1993. I propose to allow the equivalent of fees for one year, say $600.

Also claimed was $94.50 charged by Bodytech Physio (R P Wilson) for services on 23 and 24 February 1995 and a further $48 for services on 26 April 1999, a total of $142.50. I am not aware of any evidence supporting the claim and it is not allowed.

According to the certificates of scheduled benefits paid by the Motor Accidents Insurance Board, there was paid to the plaintiff, other than by way of disability allowance, a total of $30,857.67. It was paid by 80 different payments between 28 July 1992 and 24 December 1996. In an endeavour to understand the words and figures which are contained in the certificates I have broken the detail down into categories. Thus I have ascertained that of the 80 different payments, 31 were for "refund travel" for a total of $10,764.85, 16 were for "refund travel and medical" for a total of $2,423.50, 24 were for "refund travel and chemist" for a total of $16,276.65, one was for "refund travel, accommodation and chemist" for $282.22, one was for "refund travel and accommodation" for $172.40, one was for "Ansett" for $374, one was for "refund treatment" for $38, two were for "refund chemist" for a total of $65.35 and two were for "medical" for a total of $460.70. Where items were for a combination of subjects, for example "refund travel and medical" I have been provided with no detail of how much was paid for one, such as travel, and how much was paid for another, such as medical. It was an agreed fact at the trial "that reasonable mileage rate for the Plaintiff is 35¢ per kilometre".

Breaking down the amounts paid into periods of time, to the end of 1993 the plaintiff was paid by the Board $3,541.97, in 1994 he was paid $5,834.80, in 1995 he was paid $8,722.85 and in 1996 he was paid $12,758.05. Nothing was paid thereafter. It is noted that the amount paid to him in 1996 was much greater than in preceding years. According to the certificates of scheduled benefits, the only services rendered to the plaintiff in 1996 involved monthly consultations with Dr Lyall and services from Mr V V Nguyen, about whom there was no evidence explaining his role (or whereabouts).

I have no doubt that the plaintiff has been reasonably or necessary taking drugs since the accident as a consequence of his injuries. However, pharmacists' accounts were not tendered and there was no other evidence which enables me to confidently assess the amount which has been reasonably expended on such drugs. I also have no doubt that the plaintiff reasonably or necessary incurred expenses for the purposes of travelling, and perhaps accommodation, particularly when travelling to doctors and for other forms of treatment. At the time of the accident he lived in the country, at Swan Bay. In 1994 he separated from his wife and moved for a few months to Lilydale and then to Launceston. Following that he lived in Ulverstone for five months and in 1997 he returned to live at Swan Bay, where he remained at the time of the trial. Plainly he had to travel a fair distance for treatment, certainly when he was not living in Launceston, and whenever he consulted Dr Lyall, who practised at Beaconsfield. I find that it was reasonable for him to incur reasonable travelling costs for consultations with Dr Lyall when living at Swan Bay in 1994, for Swan Bay is about equi-distant from Launceston and Beaconsfield. However, I am not satisfied that when he was living away from Swan Bay for three years from 1994, it was reasonable for him to incur the cost of travelling all the way to Beaconsfield to see a general practitioner, particularly in view of the fact that since 1994 the doctor's main function, for which the defendant is responsible, has merely been to prescribe drugs.

Without sufficient detail or adequate breakdown and explanation of the various items paid to the plaintiff by way of scheduled benefits for travel, accommodation, chemist, medical and treatment expenses, I can only award a lump sum which represents my estimate of the reasonable costs the plaintiff must have incurred. He bore the onus of proof, of course, not the defendant and there is no justification for generosity. I will award $12,000 for such past expenses.

Rounding off, for all past expenses I allow $30,000.

Future expenses

Agreed facts included that for the purposes of assessing the plaintiff's claim for future medical and like expenses it would be reasonable to allow $36 for a visit to his general practitioner, $15.50 for a packet of 20 Panadeine Forte, $11.95 for a packet of 50 Valium and $19.25 for a packet of 20 Endone, and that a reasonable mileage rate for the plaintiff's travel is 35¢ per kilometre. It was also agreed that if the plaintiff is ever required to have a spinal fusion the reasonable cost of the surgery and associated expenses will be $20,000. He was born on 18 August 1957 and is 42 years old, with an expectation of life of about 34 years, according to the table in evidence.

For future medical treatment the plaintiff claims the cost of attending his general practitioner on a monthly basis for treatment and the prescribing of analgesics. I think it may reasonably be expected that he will continue to see his general practitioner at that frequency as a result of the injuries. There was no evidence of the distance from his Swan Bay home to his general practitioner at Beaconsfield, or to another at Launceston, but I take judicial notice of the general location of Swan Bay and am satisfied that the distance in either direction would be approximately 40 kilometres return, which is what is claimed in the particulars. I will therefore allow for the expense of the monthly attendances $36 for the doctor's fee plus $14 for travelling, a total of $50 per month. Extended for 34 years, I allow $8,000.

The plaintiff also claims for the possibility that he may need to undergo surgery some time in the future at a cost of about $20,000. Alternatively he claims $8,000 to cover the costs of his attendance as a patient at a cognitively based pain management program, such as that at the Royal North Shore Hospital in Sydney. Having regard to my finding concerning the level of pain suffered by him and that he has been grossly exaggerating his symptoms and suffering, I discount the possibility that he will need to attend a pain management program. After eight years' experience he must surely know how to manage his pain. The medical evidence did not persuade me that there will be any need for him to attend such a program. I also regard it as extremely unlikely that he will need to undergo further surgery. The preponderance of medical evidence was that he is not a candidate for future surgery. However, I will allow a further $2,000 for the possibility of unexpected surgical or medical treatment.

Finally, so far as future expenses are concerned, the plaintiff claimed that for the rest of his life he will need to take the following substances or drugs:

·    Kuda Kali at $20 per bottle.
·    Panadeine Forte (four tablets per day) at $15.50 per 20.
·    Valium (two tablets per day) at $11.95 per 50.
·    Endone (two tablets per day) at $19.25 per 20.

I allow nothing for the Kuda Kali. The only evidence about it came from the plaintiff. He said that it was a natural medicine and that "they" said that it was very good for arthritis, so as a result he had been trying it to see if it helped him. He purchased it from a Natural Health Shop for $20 a bottle, which lasted two months. I am unpersuaded that the expense was or is necessarily or reasonably required as a result of his injuries.

There was an apparent conflict between the evidence of Dr Lyall and the plaintiff concerning his present and likely future need of drugs. It was Dr Lyall's evidence that at the time of the trial the plaintiff was prescribed Panadeine Forte (two tablets up to four times a day if required), Endone (a lesser narcotic analgesic - one or two tablets three times a day), Diazepam (Valium - 5 milligrams three times a day) and Lovan (anti-depressant). That was not the plaintiff's evidence however. He was on two occasions asked what drugs he was taking and, apart from Kuda Kali, he mentioned only Panadeine Forte and Valium. His evidence was that he took 40 Panadeine Forte tablets a month (which would cost $31 each month) and 50 Valium a month ($11.75 a month). I will allow a future cost upon the basis of his evidence about the matter. Rounding off I will include $7,000 in the award.

Lost earning capacity

In the particulars of his claim, the plaintiff claimed that he was totally and permanently incapacitated from undertaking any work, save light and sedentary work. He claimed an after tax loss of $93,334.17 to 30 June 1998 (projecting it until today I calculate that his net loss so claimed would total about $130,000). The evidence at the trial established that following his arrival in Australia he was involved in the operation of two businesses which were unprofitable and two businesses which were profitable. The profitable ones were the Alexander Food Bar operated from about late 1985 or 1986 until about 1989 and the taxi business operated from about 1990 until the accident on 19 June 1992. The plaintiff's case was closed without any evidence establishing what his earnings or earning capacity were or had been at any time. As a result of me seeking further information, the hearing resumed earlier this month and I was informed that certain facts were agreed. They were that as at the date of the accident the plaintiff was earning income by virtue of a partnership conducted with his wife, he being responsible for the production of 90 per cent of the partnership earnings and his wife being responsible for the balance. For the year to 30 June 1992 the plaintiff's net income was $12,039.12. It was also agreed that should the Court find that as a result of the defendant's negligence the plaintiff has been totally incapacitated from earning any income since the accident until the date of trial, then the plaintiff's loss of earnings to trial can be assessed at no more than $79,567.78, such figure calculated in accordance with par4(8) of the plaintiff's particulars of claim. I note that sum was net after deduction of a disability allowance paid by the Motor Accidents Insurance Board, and although I will deduct the amount of that allowance in due course, I take it that the parties meant therefore that, in accordance with the particulars, it is agreed that the maximum amount the plaintiff may be allowed to the date of trial is $93,334.17. That sum was calculated by the plaintiff upon the basis that in every year since the accident his income would have increased by 10 per cent per annum. However, there was no evidence establishing that the incomes of taxi proprietors have increased by that percentage since the time of the accident. There was evidence from Mr J P Gregg, the owner of a taxi business, that an average employed taxi driver could earn between $375 and $425 per week gross. He did not give evidence establishing what the owner of a taxi might earn.

Admitted into evidence by consent was a proof of evidence of one of the plaintiff's brothers, Ahmad Mohammad. He stated that he was in partnership with another brother, Farouk, and his wife Belinda, operating the Kebab House in George Street, Launceston. It was a takeaway food shop open seven days a week for a total of 108 hours per week. In addition approximately one hour per day was required for setting up, cleaning and re-stocking. Ahmad and Farouk Mohammad both worked between 50 and 60 hours each week in the business. Belinda Mohammad worked about 15 to 20 hours each week, mainly doing the books and keeping stock records. Nine casual staff were employed working varying hours at various times. For the week preceding the date of the trial the cost of casual labour to the business was $1,201.07. The then current adult rate for a casual worker was $15.54 per hour. Ahmad Mohammad's proof stated that if the plaintiff was able the partners would certainly offer him work in the business, or even offer him a partnership. They preferred to pay him money rather than a person who was not a member of the family. Without overlapping with Ahmad and Farouk, he could certainly work 30 hours or more a week for the business, if able. At 30 hours each week as a casual he could therefore earn $466.20 per week. There was no mention in the proof of evidence of the income earned by the partners.

I make the following findings. The plaintiff was earning $12,039.12 on an annual basis after tax, at the date of the accident. Having regard to a general rise in income since then he could, but for his injuries, have continued to earn a slowly increasing level of income from his taxi business until now. Since his arrival back in Tasmania in 1983 he has not earned income as an employee of another and having regard to the level of his incapacity, brought about by the injuries, his lack of training and experience and his general background, I conclude that it is most unlikely that he will be able to earn income in employment, unless the employer is someone who is prepared to favour him, such as his brothers. I find that as a consequence of his injuries he has been permanently incapacitated from working full time as a taxi driver. I am satisfied that since 1994 he could usually have managed a few hours each day but he could not have worked full time as an employed taxi driver, because his back problem would have prevented it. Accordingly, as a result of his injuries, I conclude that his capacity to earn income from taxis has largely been removed.

Until the end of 1993 he was totally incapacitated from earning any income as a result of his injuries. It is very difficult to assess the extent of his incapacity since then, owing to his deliberate exaggeration of his symptoms. The video films of him when not pretending gross incapacity on occasions when he attended a medical practitioner, often showed him with a slight limp and the evidence of Mr Judge supports a finding in his favour to some extent. All of the medical practitioners who gave evidence agree that there is a level of incapacity to earn income.

I find that because of his injuries he has been and will continue to be unable to work full time in a business such as his taxi business, the Alexander Food Bar, The Fruit Palace and the Kebab House. I conclude, however, that he will be capable of working in or for such businesses for about 20 hours a week and that he has been so capable since 1994. That is my rough assessment on the balance of probabilities. Up until now he would have had difficulty obtaining such work from anyone other than the proprietors of the Kebab House, who are members of his family. The evidence establishes that they have been and will continue to be willing to provide work and an income for him. A full partnership will not be available to him because of his incapacity. The Kebab House opened for business in about February 1996.

Based on the proof of evidence of his brother, he could currently be earning, but for his injuries, a little less than $20,000 per annum after tax for 30 hours work each week. The evidence does not establish that he could be earning as much as that from his taxi business, if he was still operating it. Upon the basis of a capacity to work for roughly 20 hours each week at the Kebab House, to earn a little less than $14,000 per annum after tax, I assess his current loss at around $6,000 per annum.

For past loss of earning capacity, I assess damages of $47,000 to about March 1996, shortly after the Kebab House opened, based on a loss of capacity to operate his taxi business until then and damages of about $23,000 for the period since then to the date of judgment, based largely on the difference between the earnings he might have earned from the Kebab House if he had worked 30 hours per week and 20 hours per week respectively. Accordingly, for past loss of earning capacity to judgment, I assess $70,000.

It is my assessment that his current loss of earning capacity is equivalent to about $6,000 per year. It is by no means certain that his family will continue to conduct the Kebab House business and be able to provide him with employment until he would, but for his injuries, have ceased to earn income in any event. If they cannot provide him with work, he is likely to find it difficult to earn income from another source. I have regard to my finding that he was more susceptible to back injury because of pathology which existed prior to the June 1992 accident and which might have resulted in him suffering an incapacity for income earning purposes some time later in his life. I also have regard to the general vicissitudes of life. I can only apply a broad brush approach to determine the appropriate figure for future loss of earning capacity and assess $85,000.

In accordance with the principles of Fox v Wood (1981) 148 CLR 438, I allow $917.77 being the tax paid on the disability allowance received by him from the Motor Accidents Insurance Board.

General damages

I assess $35,000 for general damages.

Conclusion

Accordingly, there will be judgment for the plaintiff against the defendant for $152,426.54 made up as follows:

Past hospital, medical etcetera expenses             $30,000.00

Future such expenses              17,000.00

Past loss of earning capacity              70,000.00

Future loss of earning capacity              85,000.00

Fox v Wood                   917.77

General damages              35,000.00

         237,917.77

       Less scheduled benefits paid              85,491.23

       $152,426.54

Past hospital, medical etcetera expenses	$30,000.00
Future such expenses	17,000.00
Past loss of earning capacity	70,000.00
Future loss of earning capacity	85,000.00
Fox v Wood	917.77
General damages	35,000.00
237,917.77
Less scheduled benefits paid	85,491.23
$152,426.54