Momtazollah Ahadizad v Damien Prendergast
[2005] ACTSC 2
MOMTAZOLLAH AHADIZAD v DAMIEN PRENDERGAST
[2005] ACTSC 2 (28 January 2005)
DAMAGES – personal injury – neck and back injuries – video surveillance evidence inconsistent with the plaintiff’s evidence in chief – inaccurate medical history provided to expert witnesses – approach to assessment of damages
No. SC 834 of 2003
Judge: Master Harper
Supreme Court of the ACT
Date: 28 January 2005
IN THE SUPREME COURT OF THE )
) No. SC 834 of 2003
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:MOMTAZOLLAH AHADIZAD
Plaintiff
AND:DAMIEN PRENDERGAST
Defendant
ORDER
Judge: Master Harper
Date: 28 January 2005
Place: Canberra
THE COURT ORDERS THAT:
Judgment be entered for the plaintiff in the sum of $42,800.00.
This is a claim for damages for personal injury arising out of a motor vehicle collision which occurred on 12 November 2000 on the Tuggeranong Parkway, in the vicinity of its connecting ramps with Lady Denman Drive, at the western end of Lake Burley Griffin. The plaintiff was driving a Ford Econovan south on Tuggeranong Parkway, which was struck from behind by a vehicle driven by the defendant. Particulars of negligence alleged against the defendant included driving at an excessive speed in the circumstances, failing to keep a proper lookout, and driving while intoxicated. These allegations are admitted on the pleadings, and the action comes before the Court for the assessment of damages. Proceedings were instituted in February 2003 in the Magistrates Court, and were transferred to this Court by Justice Connolly in December 2003 on the plaintiff’s application, based on advice from counsel that the damages potentially recoverable by the plaintiff were likely to exceed the jurisdictional limit of the lower court. The costs of the application for transfer were reserved.
The plaintiff, who gave evidence in halting English without an interpreter, was born on 29 September 1950 in Iran. He trained, apparently as the equivalent of an apprentice to his older brother, as an optical mechanic and in 1968 passed a practical examination and obtained an Iranian licence to work in that field. He worked full-time for his brother until the family migrated to Australia in May 1972. The plaintiff already had a sister living in Canberra, and they settled in this city. He almost immediately obtained employment with Optical Products Pty Limited, where he worked for three years, and in 1975 he started employment with OPSM, a large national optical company, at Surry Hills in Sydney. He continued with this work until he was injured in a motor accident in 1981. He suffered a fractured pelvis, and was in hospital for nearly two weeks. He was unable to return to work at OPSM and lost that job. He made a claim for damages, which was settled about three years later for $40,000.00.
In 1983 he returned to Canberra to be close to his family. At some point in the mid-1980s, he worked for about nine months for his brother, who had an optical laboratory. In 1985 he married. His wife was a national of the Philippines and she came to Australia to join him in 1986. They later separated and in 1997 his wife instituted divorce proceedings. There were no children of the marriage.
After the work with his brother came to an end, the plaintiff had a job for some time at a discotheque, working for five nights a week, from 9.00 pm to as late as 5.00 am, collecting glasses and serving customers. In December 1993, he was involved in a second motor vehicle accident. He injured his neck and low back, and lost a number of teeth. A claim in relation to those injuries against the third party insurer was also settled. The plaintiff’s evidence was that by about twelve months after that accident, he had made a complete recovery. His evidence was that he had pain in the neck for only one or two weeks after that incident.
The proprietor of the discotheque closed it, so that job was no longer available for the plaintiff. He was unemployed from 1993 until the motor accident in 2000, except that in 1992 he had started a small business at the Jamison markets at Belconnen, selling sunglasses each Sunday. His evidence in chief was that he continued this until 1995 or 1996, when he ceased that business. Thereafter, he said that he applied for many jobs, but without success. These included optical mechanic work, and also work as a refrigeration and washing machine mechanic, and as a motor mechanic. He also applied for work delivering parcels as a courier, again without success. During the period from 1994 to 2000, he had a little difficulty with his low back and hips, which took him to his general practitioner for treatment from time to time.
He was the victim of an assault in January 2000 at the Southern Cross Club, when a fellow member threw a glass at his face. He was not injured in the incident, but it had a psychological effect on him.
This brings us to the motor vehicle collision of 12 November 2000. The plaintiff’s evidence was that he was driving along the Tuggeranong Parkway at about 90 kilometres per hour when he was struck from behind by the defendant’s vehicle. It was a Sunday morning, and he was returning from the Jamison markets. The damage was such, he said, that his vehicle was a write-off, and he could not drive it. It was a wet day. The plaintiff called the police but they would not attend the scene of the accident because of the weather, and required him to come to the Woden Police Station. The plaintiff was shaken and nervous, and his evidence was that he had pain in the back and the right shoulder.
He saw his general practitioner, Dr Reading, two days after the accident, on 14 November, and was referred for an x-ray of the right clavicle. By this time he was experiencing interscapular pain, that is pain in the upper back between the shoulder blades. Dr Reading prescribed medication in the form of Tramal and Capadex, strong painkillers. The plaintiff said that he was taking five Capadex a day. In January 2001 he was referred to Dr Liu, a general practitioner in Dr Reading’s practice with qualifications in acupuncture. He had five or six sessions of acupuncture in the shoulders without much benefit. He was then referred for six or seven sessions of physiotherapy, but said that he gained no benefit from this either. He was next referred, in April or May 2001, to a chiropractor, who he saw seven or eight times over a period of three to four months, again without any significant improvement in his condition.
Early in 2002, under the supervision of Dr G Speldewinde, a consultant in rehabilitation, pain and musculoskeletal medicine, he went through four or five sessions of a rehabilitation program. He found this painful and of little help and did not continue with the program.
An x-ray report of 23 December 1993 of the cervical spine showed a slight deformity of the C6 vertebra, which might have been due to a compression injury. It is a reasonable inference that the x-ray was ordered because of complaints of symptoms in the cervical spine following the 1993 accident. Clearly the plaintiff suffered some kind of neck injury at that time, of sufficient severity to warrant radiological investigation. This is confirmed by copies of notes from Dr Reading’s practice; on 12 January 1994 the plaintiff was complaining of persistent pain in the mid-neck with referral to the interscapular region, and the complaints continued throughout a further five consultations up to October 1994. Thereafter, assuming that the copies of the clinical notes in evidence are complete, the plaintiff did not have cause to consult Dr Reading again until May 1997, when he presented with epigastric pain and palpitations. He saw the doctor three times during that month, but not again until January 2000 when he sought medical attention following the assault at the club. In April 2000 he presented with symptoms which appeared to be related to his marriage breakdown. There are notes of attendances at the practice on eleven occasions between April 2000 and 23 October 2000, the last attendance before the motor accident. From July 2000, the plaintiff had been complaining of left low back and renal angle pain, for which he was prescribed medication and physiotherapy. Dr Reading thought that the pain appeared to be coming from the kidney region rather than the lumbar spine. He referred the plaintiff for a bone scan, carried out on 30 October 2000, which detected no abnormality. Dr Reading’s opinion by that time was that the pain was probably musculoskeletal in origin rather than related to a kidney malfunction.
On 4 July 2000, Dr Reading provided the plaintiff with a medical certificate addressed to Centrelink, in which he certified that the plaintiff was suffering from stress, depression and back pain, was unfit for his usual work and unfit for any work for eight hours or more a week, but likely to recover within three months. On the strength of this certificate, the plaintiff was placed on sickness benefits. The plaintiff’s own evidence was that he was on unemployment benefits throughout the period up to the 2000 motor accident, but I am not sure that the plaintiff understood the difference between unemployment and sickness benefits. It was not suggested that one was more generous than the other. It seems that he had probably been on unemployment benefits for a number of years, at least since the 1993 accident, until July 2000.
On 23 October 2000, Dr Reading gave him another certificate, stating that due to back pain and depression he was unfit for work. The certificate covered the period of three months to 24 January 2001, but, unlike the previous certificate, expressed the view that it would be six to twelve months before the plaintiff was likely to be able to work for at least eight hours a week or return to his usual work. The plaintiff presented this certificate to Centrelink, and his sickness benefits continued.
Dr Reading formed the view that the low back pain of which the plaintiff complained prior to the 2000 accident was a legacy of his earlier injuries, and that the symptoms following that accident were fresh and unrelated. Dr Reading accepted the plaintiff’s complaints as genuine. In a report of 3 August 2001, he said that the plaintiff was totally incapacitated for work, but that his prognosis was good. He had been going through a marriage breakdown and financial problems which might have been complicating his short-term progress.
In a report of 19 April 2002, Dr Reading noted that the plaintiff’s complaints of pain were continuing, but he remained optimistic that over time they would settle. By 14 November 2003, Dr Reading’s optimism was receding. He said that the plaintiff by then was suffering from whiplash injury to the neck and musculoligamentous localised pain in the thoracic spine which were inhibiting his return to work. His prognosis remained guarded and there appeared to be no specific therapy available to help him at that time.
Dr Reading’s final report prior to giving evidence at the hearing was dated 13 August 2004. He saw the plaintiff by then as still incapacitated for work because of his neck and mid-thoracic back symptoms. His prognosis remained guarded, and his symptoms were “most likely related to his motor vehicle accident in the year 2000”. Dr Reading agreed in cross-examination that he would normally accept what he was told by a patient so long as it seemed credible and reasonable, and that he had accepted what he had been told by the plaintiff throughout.
Dr Reading referred the plaintiff to Dr Speldewinde as previously mentioned. Dr Speldewinde did not give oral evidence. A number of his reports were tendered. He expressed the view in March 2002 that the plaintiff’s persisting left upper cervical pain and headache were attributable to the 2000 motor accident, as was his right mid-thoracic vertebral dysfunction which might have been related to a zygapophysial joint strain. He thought that the latter might be relieved by injection under x-ray control.
In a January 2004 report, Dr Speldewinde noted significant features of depression and anxiety, consistent with post-traumatic stress disorder. He regarded this, as well as the C5-6 dysfunction, as a result of the 2000 motor accident. He thought that the plaintiff would benefit from assessment and counselling by a pain management psychologist, in addition to anti-depressant medication, a neck strengthening program, and injections as he had previously recommended. I note that the plaintiff by the time of the hearing had not acted on any of these recommendations, though I accept that his financial position may have been a factor.
The opinions expressed by Dr Speldewinde in his reports are, of course, based upon his acceptance of the history given to him by the plaintiff.
Dr Reading also referred the plaintiff to Dr K N Chandran, neurosurgeon, who first saw him in February 2002 with complaints of pain in the right shoulder medial to the scapula, pain over a small spot in the anterior chest wall on the right, and some pain over the left trapezius. Dr Chandran found some tenderness in the vicinity of the lower part of the right scapula which he thought could be coming from a facet joint in that region. He thought that the chest pain might be caused by pressure on the nerve root at C6, and he ordered an x-ray and MRI scan of the cervical spine. The former showed some laxity of the ligaments at C5-6. The latter showed a mild bulge at C5-6 and a smaller bulge at C6-7, but no nerve root compression. Dr Chandran thought that the plaintiff’s pain was “more in the thoracic region” and offered him a facet block, which the plaintiff rejected, saying that he had had injections before in that area. Dr Chandran said that there was little more he could offer the plaintiff, and was unsure how much of his symptomatology was organic.
Dr Chandran saw the plaintiff again in August 2004, shortly before the hearing. The plaintiff complained of neck pain on the left side, radiating into the left anterior chest, relieved to some extent by massage and painkillers. He made an appointment to administer a facet block injection in September, within a few weeks of the hearing. The cases of the parties concluded, and I reserved my decision, prior to the date of the appointment, and accordingly there is no evidence as to whether or not the plaintiff had the injection.
The plaintiff was referred by the defendant’s insurer to Dr W M Wearne, orthopaedic surgeon, who saw him in May 2002. The plaintiff told Dr Wearne that he had made a complete recovery from his 1982 injuries, although he had been unable to walk properly for about eight months and had been off work for about two years. He gave a history in relation to the 1993 accident of breaking several teeth but suffering no other injuries. It does not appear that Dr Wearne was given any history of the plaintiff’s complaints and investigations during 2000 prior to the motor accident.
Dr Wearne conducted a physical examination, and identified a small area of exquisite tenderness just to the right of the thoracic spine, which he though probably arose from a facet joint or a costo-vertabral joint. This is consistent with the opinion expressed by Dr Chandran. Dr Wearne was shown the x-ray and MRI report of 3 April 2002, ordered by Dr Chandran, and examined the films himself. He agreed with the findings but took the view that having regard to his clinical findings on physical examination and the plaintiff’s description of his symptoms following the motor accident, the changes shown in the films were irrelevant to that accident. Dr Wearne concluded that the plaintiff had suffered soft tissue injuries to the left shoulder and lower back in the motor accident of 12 November 2000, from which he had substantially recovered. In addition he had developed interscapular pain which had been more persistent. Dr Wearne thought that this probably arose from a right-sided facet joint or costo-vertabral joint and was probably related to the motor accident. He expressed the opinion that the treatment received by the plaintiff to that time had been appropriate and necessary. He thought that the plaintiff did not sustain any injury to his neck in the motor accident. He continued to require treatment for his interscapular pain: the treatment most likely to produce relief would be a steroid injection under x-ray control. Dr Wearne expressed the opinion that the plaintiff was, at the time he saw him, physically fit to perform the work of an optical mechanic. It is not clear that the physical requirements of this work were explained to the doctor in any detail.
The defendant’s solicitors subsequently arranged for the plaintiff to be assessed by Dr Ian Low, an occupational medicine specialist. He saw the plaintiff in June 2003. The plaintiff told him that he had sought medical attention two days after the accident because of frontal headache and dizziness, and because he could not see clearly in both eyes. This is not consistent with Dr Reading’s evidence or records, and counsel for the defendant submitted that I should conclude that the plaintiff, when he saw Dr Low in June 2003, was seeking to embellish his case. I am not sure that that conclusion is reasonably open. I am conscious of the plaintiff’s limited capacity to communicate in English. It seems in any event a minor issue.
Dr Low thought that the symptoms described by the plaintiff at the time of his assessment “related to some degenerative change in his upper spine and/or a disturbance in his psychosocial functioning.” He thought that the accident as described by the plaintiff did not sound so severe as to have caused permanent damage to the spine. He expressed the opinion that the symptoms described did not appear severe enough to prevent the plaintiff from returning to selling sunglasses at the markets, perhaps with some modification in relation to setting up his stall. He though that the plaintiff should be able to do the work of an optical mechanic with appropriate work modifications if necessary, though again, it is not clear that Dr Low had any knowledge of the physical requirements of that employment. Dr Low concluded that the plaintiff required no further investigation or treatment apart from, perhaps, anti-inflammatory medication for his degenerative changes.
Dr Low saw the plaintiff on only the one occasion, but he was provided subsequently with a copy of Dr Speldewinde’s report of 6 January 2004. It appeared to him from the history taken by Dr Speldewinde that the plaintiff’s pain had apparently increased considerably over the six months since he had seen him. He noted that the neck pain complained of was on the right side, whereas it had been on the left side of the neck in mid-2003. He also noted that Dr Speldewinde had found markedly increased restriction of movement of the neck on examination. Dr Low said that physical injuries were expected to get better over time, not worse, and the plaintiff’s increased and changed symptomatology could only be explained by a worsening of his psychosocial functioning, possibly with a background of some degenerative change in his upper spine. He was unable to relate that symptomatology to the accident of 12 November 2000. Any treatment, he said, should be orientated to improving the plaintiff’s emotional functioning: psychotropic medication might be beneficial but Dr Low did not agree with any of the other treatment recommendations of Dr Speldewinde. Neither Dr Low nor Dr Speldewinde gave oral evidence, which might have provided an opportunity to explore the reasons for their differences of opinion.
The plaintiff was extensively cross-examined. He initially adhered to his evidence in chief, that he generally spent his time at home with nothing to do, unable to walk much because of his level of pain. He agreed that he occasionally went shopping, but was able to carry only about one and a half kilos of groceries in a bag in each hand for balance. He was unable to walk, he said, carrying something in one hand with the other hand empty. He was specifically asked whether, apart from grocery shopping, he went out at all, and he said that he did not. He then explained that every morning he came down from his flat and walked to a coffee shop. He lives in a one-bedroom flat at Strathgordon Court, a government housing complex in Lyons. The flat is on the third floor and the building has no lift. Between floors there are two flights of stairs with a landing, so the plaintiff is required to go up and down six flights of stairs.
In the witness box, the plaintiff held his head and neck stiff, looking straight ahead. His evidence was that he was unable to move his neck much without pain, either to right or left. He demonstrated a range of rotation of 45 to 50 degrees on each side.
He described himself as fit and healthy before the 2000 accident, though he agreed that he had some lower back pain, and accepted that he had seen Dr Reading on a number of occasions during 2000. He said that he was capable of work, including heavier work, and that he had been looking for a job prior to the car accident. He denied that he had been taking Capadex, prescribed by Dr Reading, prior to the accident. Confronted with Dr Reading’s notes, he took refuge in lack of memory. He did not recall having a bone scan shortly before the motor accident. Asked about whether he had suffered from stress or depression before the accident, his answer was “not much”. He was unsure whether he had been prescribed Zoloft, an antidepressant drug, by Dr Reading in April 2000, and said that he did not recall this, though a little later he altered his position, agreeing that Dr Reading had prescribed some kind of tablet but that he did not know what it was. He agreed that he was suffering from lower back pain (“a little bit, not much”) before the motor accident. He described this as pain in his hips and kidney, rather than his low back.
Confronted with the Centrelink certificates signed by Dr Reading in July and October 2000, he conceded hip and kidney pain but denied stress or depression. In relation to Dr Reading’s reference in the certificates to back pain, the plaintiff at one point said, I thought tellingly, “no Sir, this is not belong to car accident.” Ultimately the plaintiff admitted that because of health problems, he had been unable to work in July 2000 and in October 2000.
Cross-examined about whether he had worked after the motor accident, he said that he had worked at the Jamison markets on Sundays for three weeks, but was unable to continue with this work. He was working for three hours each day. On the fourth Sunday he could not continue and resigned. He initially volunteered that this had been in 2002. He said that he was paid $30 per day, $90 in all and that this was the only income he had received since the motor accident other than social security payments. He denied doing any unpaid work. He later volunteered that he had continued to attend the Jamison markets every Sunday for his own shopping for groceries, vegetables, clothes and anything else he needed. He denied that he was, or had been at any time since the motor accident, capable of lifting a weight of thirty to forty kilos, or even ten kilos, and said that his maximum lifting capacity was about two or three kilos. A tray of sunglasses, weighing perhaps five kilos, for example, was beyond his physical capacity.
He was asked about a specific incident involving the removal of two gas cylinders from his Ford Econovan in the parking area beneath Strathgordon Court. He agreed that the Econovan ran on both gas and petrol, and that there were two gas cylinders in the back of the van for that purpose, each about a metre in length. Some time after the accident, he wanted to terminate a rental arrangement for the gas cylinders. The gas company was charging $20 per month, which the plaintiff could not afford. The company quoted $380 to remove the cylinders and take them away. The plaintiff could not afford this and he removed them himself with the help of a friend. It was necessary to get under the back of the van to unscrew a nut. He said that this part of the task was undertaken by his unidentified friend.
At this point in the cross-examination, the plaintiff was shown extensive video film of his activities. He was seen to remove what appeared to be a metal-framed piece of wood, apparently the flooring of the rear of the van. He appeared to move his head and neck in an unrestricted fashion. The video had been taken by an investigator in January 2004, and showed the plaintiff presenting very differently to his stiff and restricted presentation in the witness box.
A little later in the film another man was seen, and the plaintiff identified him as the friend who had helped him to remove the gas tank and the flooring from the van. The plaintiff was seen to move the whole of his body, including his right arm, without restriction. He agreed that the cylinders after removal from the van had been placed in the back of his Volvo car, one on the floor behind the driver’s seat and the other on the back seat. He initially said that his friend had helped him to do this. He had put the first cylinder into the Volvo by himself, but found that he was unable to cope with the second cylinder. He waited for about half an hour, and the friend assisted with the second cylinder.
The plaintiff was then seen to place carpet on the floor of the garage to allow him to climb under the van, and he agreed that he climbed under the van and did some work under it. A little later he was seen to push a large gas cylinder with his right foot towards the Volvo. He agreed that it would have weighed between fifty and seventy kilograms. He agreed that he had removed one of the cylinders from the Econovan without assistance, and he then said that he had placed both cylinders in the Volvo. Again, his movements during this part of the film appeared unrestricted, and entirely inconsistent with his presentation in Court. He conceded that his earlier evidence that he had had assistance from a friend in placing one of the cylinders into the Volvo had been incorrect.
He was later seen to lift a toolbox. He estimated its weight at six to seven kilograms. He was seen to place the toolbox in the rear of the Volvo with his right arm. He was then seen to drive his Volvo out of Strathgordon Court. He agreed that he drove to a service station in Gladstone Street, Fyshwick, where he returned the gas cylinders. He agreed that he took both of the cylinders out of the Volvo without assistance to return them. He also agreed that he then drove to a business called Fridgeland in another part of Fyshwick. He said he had had previous discussions with the proprietor, whom he had known for a long time, about the availability of a job, and he went there to see whether there might be work available. His endeavour in this regard was unsuccessful. He was next seen at a Shell service station at Woden and he agreed that perhaps he had gone there on the same day to buy petrol. He said that he had been sick after this day, for at least one and perhaps two or three weeks. He did not recall whether he had had any need to see Dr Reading during this period, though Dr Reading’s notes contain no record of any consultation at that time.
The plaintiff was then cross-examined about whether he had ever had occasion to change any of the tyres on his Volvo. He agreed that he had, earlier in 2004, because he had a flat tyre. He had jacked the car up, and undone some of the bolts. He said that he asked someone to help him with this. He then took the wheel off and put the spare wheel on, and he took the wheel with the flat tyre to be repaired. He agreed that the wheels were very heavy, certainly weighing well in excess of one and a half kilograms.
He was then asked about his usual routine on a Sunday. He said that he would usually get up, have breakfast, a shower and a shave, and go out at 10.30 or 11.00 am to do his shopping, sometimes to the Jamison markets. He was then referred to his earlier evidence that he had not worked at those markets since 2002. He said again that he had worked on three Sundays, and on the fourth been unable to continue. Asked whether he was referring to 2002, his answer was “2002 and this year, Sir.” He was asked whether he wanted to change his evidence of the previous day, that he had worked on those three or four Sundays in 2002 and not since. He said he did not. He was then asked again whether the last time he worked at Jamison markets was in 2002, and his answer was “maybe 2002 I’m working, I’m selling sunglasses, maybe 2004 I’m selling there, working for that people, three Sundays.” He was asked whether the inconsistency in evidence was due to a problem with his memory, and he appeared to me to seize on this explanation, saying that his memory was affected by strong painkillers. He then admitted that he had been working at a stall at the Jamieson markets during 2004 on several Sundays, and that the work at times had involved lifting boxes full of stock which weighed much more than one and a half kilograms.
Further video film was then shown, taken on 8 February 2004. The plaintiff said that he was paid $10 per hour to work at the Jamieson markets. Initially he said that he finished work by 11.45 am, but he agreed a little later that he sometimes stayed on until 2.00 pm or 3.00 pm, helping to pack up, lifting boxes of stock and carrying them to a van. He agreed that his work included serving customers. He was asked whether he had worked there during 2003 at all. He said that he did not remember, though he did not deny it. Again he attributed the lack of memory to strong painkillers. He agreed that at the end of the working day, he assisted on occasions in dismantling the trestle tables on which the stock had been displayed, and lifting and moving the tables and trestles. He was also seen to remove the tarpaulin sides of the stall, which involved lifting both arms above his head. He said that he had done this on one occasion only. He had not disclosed this work or income to Centrelink. He did not deny that it was possible that he had been working at the Jamison markets regularly during 2003, repeating that he did not remember.
On the same day, the plaintiff was then seen carrying shopping bags with his own shopping and placing these in his car. He agreed that there were five bags of shopping, and that he carried his shopping up the stairs to this third-floor flat, perhaps on more than one occasion. He volunteered that on one occasion he had carried a grocery box from Aldi up his stairs.
He agreed that on some days, after working at the markets, he had on occasions driven to Wanniassa to visit his sister-in-law, and spent some hours at her house, eventually going home at about 5.00 or 6.00 pm. He said that when visiting his family, he would take the opportunity to sit in a chair and rest.
He was next asked about occasions when he had travelled to the premises of ACT Optical, the business operated by his nephew, Soorage Ahadizad, as successor to his late father, the plaintiff’s brother. He said that he had visited the premises the previous week, following a conference at his solicitor’s office which had also been attended by his nephew. He had been there twice during the last week. He denied having any discussion with his nephew about the case or the evidence either of them was to give. At some earlier time he had asked his nephew to be a witness in the case, to give evidence about the arrangement for the plaintiff’s employment had the accident not occurred. On each of the two occasions in the week before the hearing, the plaintiff stayed at the premises for some hours, and wore a white jacket to protect his clothing. He had attended for the purpose of giving advice to his nephew, something he had done a couple of times earlier during the year 2004, and for which he had received some payment. He denied doing any work as an optical mechanic, and said that his role was limited to an advisory one. His nephew had purchased a large polishing generator, and the plaintiff helped his nephew to clean polishing tools. The plaintiff said that he had not received any payment for his assistance the week before the hearing.
The plaintiff was shown some further film, taken on 28 May 2000. He was seen in the driver’s seat of the Ford Econovan. He was asked whether he had ever used that vehicle when going to Jamison markets. Initially his response was “let me think – I can’t say Sir. I can’t say.” He was asked whether he had ever used the van during 2002 for the purpose of transporting stock to be sold at market. He agreed that he had done so, conveying stock in trays on Sundays. He was unable to recall on how many occasions this may have occurred. He said that the stock involved consisted of sunglasses.
He was next asked whether he had visited or worked at markets at Woden. He agreed that he had attended the markets most Sundays, but said that he had not worked there. Film was shown of him walking around the Woden Trash and Treasure markets on a Sunday in March 2004. He was seen to move his head and neck freely, again inconsistently with his presentation in the witness box.
The plaintiff made it clear that he had become aware that he was under surveillance. On at least one occasion, he was conscious that a vehicle was following him from Erindale to Woden. He went to the police to report it, but was told that the police were unable to assist him. He then reported the incident to his solicitor.
During the course of the plaintiff’s cross-examination on the video material, I gained the impression that he was prepared to admit activities to the extent that he thought that the defendant’s representatives had available to them evidence of those activities. He initially denied virtually any activity outside his flat, and made concessions as it became apparent to him that there was objective evidence supporting the questions being put to him. He made his concessions progressively, giving the appearance of wanting to admit no more than he had to. I do not accept that his memory is as poor as he says it is, or that it is impaired by his use of painkillers. It seemed to me that he fell back on an inability to recall when confronted by inconsistencies between his evidence in chief and the surveillance material. I take account of the fact that English is not his first language, and that although he has lived in Australia for more than thirty years, he has never mastered the language and continues to have difficulty both in comprehension and in expressing himself orally. This may explain some of his apparent concessions that he had given false evidence in chief. Nevertheless I found the plaintiff an unreliable witness, and have considerable difficulty in accepting his uncorroborated evidence about matters relevant to the assessment of damages.
The plaintiff’s sister-in-law, Mrs Shamsi Adadizad, the widow of the plaintiff’s brother and the mother of his nephew Soorage, gave brief evidence in support of the plaintiff’s case, in particular of the effect of the motor accident on him, and his need for assistance from family members. I had the impression that she was strongly motivated to help the plaintiff’s case. Her evidence was that prior to the motor accident he was fit and healthy and capable of working. This is inconsistent with the medical evidence. I did not find her a persuasive witness.
The plaintiff’s nephew Soorage Ahadizad was called to give evidence in relation to the claimed arrangement for the plaintiff to be employed in his business had he not been injured. The plaintiff’s nephew is 38 years old, and has been the owner and manager of ACT Optical since his father died in 2001. Prior to that, he owned his own business, Unique Optical, at Manuka, for twelve years. After his father’s death, he decided to expand the business and to establish a larger laboratory than the one his father had been using. He also decided to buy a large generator, a machine for grinding lenses. He said that he had discussed these plans with the plaintiff well before his father’s death, and that the plaintiff was supportive and had offered to help him. After his father’s death, Soorage kept his father’s laboratory in Tuggeranong in operation, and took over an established optical business at Queanbeyan. He said that he asked the plaintiff to come over and help out, and that the plaintiff did attend a couple of times, but was not in a fit state to be of any real help. He explained that optical laboratory work requires a great deal of standing and walking. The plaintiff appeared to be in pain and unable to cope with this.
Asked what were his plans for the plaintiff if it had not been for his injuries, his reply was: “Well hopefully he would have been with me now in business and would have been I suppose employed with us or he may be even a part of my company that I have now.” He explained that he had a small number of employees doing the sort of work which he envisaged that his uncle would have been able to do, and that he was paying these employees $800.00 per week plus bonuses. He said that the plaintiff had been of a little assistance to him with the setting up of the Queanbeyan laboratory. He had offered to pay him for his services, but the plaintiff usually refused. He had given him money for petrol a couple of times.
Soorage came to Australia as a small boy and his English is excellent. He explained that prior to the hearing, he had on numerous occasions helped the plaintiff by translating letters and other material received from his solicitor. He had discussed the case, including the plaintiff’s evidence, with him on the morning he gave his own evidence.
He explained that an optical dispenser is required to be licensed in New South Wales, but that there is no such requirement in the Australian Capital Territory. Two of the employees based at Queanbeyan were licensed in New South Wales. It would be a breach of New South Wales law for a person to work as an optical dispenser without a licence, unless that person was working directly under the supervision of a licensed dispenser. The plaintiff, he agreed, does not hold a New South Wales licence. He would have been limited to working at the Tuggeranong laboratory, or at Queanbeyan under supervision.
His evidence was that he was unaware that the plaintiff had been certified by his general practitioner as unfit to work from July 2000 until after the motor accident, and that he had been in receipt of sickness benefits during that period. He said that if he had been aware of that, he would not have been pursuing discussions at that time with the plaintiff about employment, though he might still have sought his advice from time to time, and he might have offered him part-time work. He obtains advice periodically from a man in Sydney, apparently on a consultancy basis. He needs advice sometimes if a machine brakes down, for example, and this might happen once or twice a week, or at intervals as long as six months. There had been significant advances in optometry in recent times. In the last ten years there had been as much progress as in the previous one hundred years. The equipment had become computerised and very advanced and very expensive.
Soorage agreed that there had been no definite arrangement to employ the plaintiff, but simply some very general discussions about the possibility of the plaintiff giving some sort of assistance and advice in relation to setting up the business. He agreed that it would be totally improbable in the absence of a family connection that he would have considered employing someone as a full-time employee who had done no work as an optical mechanic for seventeen years and had no recognised Australian qualification. However, he said that if the plaintiff had been fit for work, he would have given him a job from early 2002, when he acquired the new expensive generator.
Having regard to the plaintiff’s state of health prior to the motor accident, as evidenced by the certificates he was given by Dr Reading, and to the fact that he had not worked as an optical dispenser or mechanic for nearly twenty years, it seems to me unlikely that, in the absence of the motor accident, he would have been offered or taken up a full-time job with his nephew. I accept that the Ahadizad family is very supportive one, and that Soorage and his mother would have continued to do what they could to help the plaintiff as he needed help. At the same time, Soorage was and is running a business, and seeking to make a profit. He has entrepreneurial qualities, reflected in the expansion of the business since his father’s death. It seems to me extremely unlikely that he would have chosen to employ the plaintiff when, for the same salary, he could have had the services of a licensed optical dispenser in good health and with recent experience in the industry and relatively recent training.
The plaintiff’s claim set out in the statement of particulars was that he was due to start employment in his nephew’s business in March or April 2001. His claim was for a loss of $598.00 net per week from March 2001, and continuing. This claim is not made out. I am not persuaded that the plaintiff would have done much more in his nephew’s business than he is now doing, as evidenced by the two visits to the laboratory at Queanbeyan the week before the hearing, of which the Court would have been unaware had it not been for the surveillance arranged on behalf of the defendant. Contrary to the claim in the statement of particulars, it is clear from the nephew’s evidence that any such work would have become available only from early 2002. Whilst the plaintiff clearly suffered genuine injuries in the motor accident, I am not satisfied that by the beginning of 2002 he was any more disabled than he is now. I am accordingly not satisfied that the plaintiff has suffered any loss of earnings referable to his nephew’s business.
The plaintiff has made the task of the Court in assessing damages more difficult than it should have been by exaggerating the extent of his disabilities in his instructions to his solicitors and in his evidence in chief. It is clear from the video material in evidence that at the time he was filmed, he was capable of undertaking a range of physical activities, including quite heavy lifting. It seems to me likely that he has consistently exaggerated the extent of his disabilities to the various doctors who have treated him and assessed him for medico-legal purposes. If he has continuing disabilities resulting from the motor accident, he is entitled to be compensated for them, and it is not the function of the Court to penalise him for presenting his case on a false basis. However, the manner in which the plaintiff has presented his case makes it difficult for me to assess the extent of any genuine disability. The plaintiff carries the onus of satisfying the Court about this. His case has not been assisted by his exaggerated history, instructions, evidence and presentation.
There is objective support in the medical evidence for the plaintiff having suffered in the motor accident an injury which caused him pain in his interscapular region. I accept that the pain was initially moderate to severe, that it has continued to trouble him intermittently, and that it is likely to do so at a mild to moderate level from time to time in the future. It may or may not be alleviated and perhaps even relieved permanently by the injection treatment proposed by Dr Chandran. It also seems to me probable that the collision led to a recurrence of neck pain which had had its genesis in the 1993 accident. I am not satisfied that any continuing neck symptoms are more than mild, or that they amount to anything more than would have been the plaintiff’s lot by now regardless of the 2000 accident.
In respect of past economic loss, the plaintiff probably had a pre-accident capacity to work at the markets on Sundays, either selling sunglasses or helping at his friends’ stall and earning $30.00 for the day. I allow $1000.00 as a generalised amount to compensate him for the impairment of his earning capacity caused by those injuries. I allow interest on that in the sum of $250.00.
I also accept that during the early period following the motor accident, he required additional assistance from family members, and I allow $1000.00 for the value of those services, plus interest of $250.00.
As to past treatment expenses, the defendant concedes an amount of $5,240.05. Further expenses amounting to $755.00 are disputed by the defendant, one amount on the basis that it relates to acupuncture treatment which was not reasonable treatment for the plaintiff’s injuries, and the other amounts because they relate to treatment after 1 July 2002, and do not have any causal relationship with the motor accident. I am satisfied that the acupuncture treatment was properly provided to the plaintiff and was in the nature of treatment for the injuries he suffered in the motor accident. I propose to reduce the other items to some extent because I am not satisfied that all of the treatment is accident-related. For treatment expenses, I allow $5,800.00 in all. I am not satisfied on the evidence that any of the expenses have been paid by the plaintiff personally, and in those circumstances I make no allowance for interest.
The plaintiff’s evidence was that he proposed to have an injection administered by Dr Chandran within weeks of the hearing. I am unaware of whether this happened, but I think it appropriate to make a modest allowance for future treatment expenses. I allow $1,000.00.
In respect of general damages, I allow $30,000.00 which I apportion as to $25,000.00 for the past and $5,000.00 for the future. I allow interest on the past component of $3,500.00.
The total of the components of the award is as follows:
General damages $30,000.00
Interest thereon $3,500.00
Treatment expenses (past) $5,800.00
Treatment expenses (future) $1,000.00
Economic loss $1,000.00
Interest thereon $250.00
Griffiths v Kerkemeyer $1000.00
Interest thereon $250.00
Total $42,800.00
There will be judgment for the plaintiff for $42,800.00. I shall hear the parties as to costs.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 28 January 2005
Counsel for the plaintiff: Mr R J Mildren
Solicitor for the plaintiff: Snedden Hall & Gallop
Counsel for the defendant: Mr M A McDonogh
Solicitor for the defendant: Abbott Tout
Date of hearing: 16, 17, 18 August 2004
Date of judgment: 28 January 2005
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