| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : MORI -v- ESA [2002] WADC 221 CORAM : WILLIAMS DCJ HEARD : 29-31 JULY 2002 DELIVERED : 16 OCTOBER 2002 FILE NO/S : CIV 2485 of 2000 BETWEEN : TERRENCE ALFRED MORI Plaintiff
AND
NEZAR AL ESA
Defendant
Catchwords: Damages - Assessment - Personal injury - Plaintiff claiming soft tissue injury to spine and psychiatric condition
Legislation: Motor Vehicle (Third Party Insurance) Act 1943
Result: Plaintiff entitled to damages in the sum of $12,000
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Representation:
Counsel:
Plaintiff : Mr T N Cullity
Defendant : Mr P R Momber
Solicitors:
Plaintiff : Trewin Norman & Co
Defendant : Peter Momber
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
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WILLIAMS DCJ:
Introduction 1 As a result of the admitted negligent driving of the defendant on 27 April 1999 the plaintiff alleges that he was injured in a motor vehicle accident and he now brings this action for damages. Liability is admitted and the matter proceeds before me by way of assessment of damages.
The plaintiff's evidence 2 The plaintiff was born on 30 June 1957. He attended school to age 15 and then completed a four-year apprenticeship as a carpenter and joiner. He married in 1982 and his son was born in 1987. He separated from his wife in 1991 and was subsequently divorced. In 1992 he began drinking heavily and according to the plaintiff it became an unmanageable problem for him. He became unemployable for a time. In 1993 he booked himself into the Central Drug Unit for treatment of his drinking problem. He did a rehabilitation program at Serenity Lodge in Rockingham. He remained at Serenity Lodge for a total of six months. In 1994 he went to Tasmania to work for a time. He returned at the end of 1994 and in January 1995 he booked himself back into Serenity Lodge. In 1996 he obtained employment as a building technician at Murdoch University where he remained for nearly two years. Thereafter he worked as a maintenance person in East Perth, and then in Karratha. 3 Approximately one month before his motor vehicle accident on 27 April 1999 he commenced employment with Skilled Communications. 4 On 27 April 1999, while driving his employer's motor vehicle, he was struck from behind by another vehicle. According to the plaintiff he felt shocked and nauseous but was physically okay at the time. He went with a tow truck driver to the place where the vehicle was taken and subsequently he attended to see a general practitioner, Dr Saharay at Innaloo. He was complaining of a sore neck, sore left shoulder, headache and dizziness. According to the plaintiff he had about 10 days away from work, attended a Telstra course lasting five days and returned to work. He continued working till September 2000 when he was made redundant. 5 In the first few months after the accident he had physiotherapy treatment. He continued to see his doctor on a fortnightly basis. In 2001 he had a problem with his bladder. Dr Saharay referred him to a
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urologist. He was diagnosed with a blockage and went to Osborne Park Hospital for a bladder endoscopy. This procedure confirmed the need for a bladder neck incision operation and he was operated on about three weeks later. 6 After he was retrenched he did not try to find other employment for some time. He had the rest of 2000 and 2001 off work completely and went to the Commonwealth Rehabilitation Services some time in 2001. 7 The plaintiff's evidence-in-chief was given by way of a proof of evidence which became Exhibit 2 in the proceedings. That document is some 61 pages long and throughout the plaintiff attempts to sheet home every conceivable problem that he has to the motor vehicle accident the subject of these proceedings. 8 He was cross-examined in relation to specific areas. In the first place he was asked to describe work that he performed in the five weeks prior to his motor vehicle accident. He described that work as connecting terminals from exchanges to people's homes by way of putting wires together in the exchange and occasionally digging cable trenches. The cables in the ground had to be run to cabinets on the verge of the street. He would cross connect the cable to the house. If the conduit was damaged he would have to find and repair the damage. On new connections he would have to run the cabling to the house. That would occur two to three times per week. Otherwise it was just a matter of connection. It was not heavy work. It involved the use of a 15 kilogram machine. 9 He was cross-examined in relation to the accident. He agreed that it was a rear vehicle collision. He was driving a Holden Commodore. He was wearing seatbelts and the vehicle had headrests. He did not strike anything. There was no bleeding, bruising or scratching. He was able to get out of the vehicle. The other driver was okay. He went with the tow truck to the repair centre. He then went to the doctor. According to the plaintiff he had aching in the neck and nausea and shock. He had 10 days off work then went on a Telstra course which he completed on 14 May 1999. That was a five day course and following that he returned to work. Thereafter he worked full-time until September 2000. Prior to the accident he was working 40 to 48 hours a week on a flat hourly rate. Pre-accident his earnings were approximately $30,000 gross per year. Following the accident his earnings were $44,000 gross per year. After the accident he still worked 40 to 48 hours per week.
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10 The plaintiff accepted that on 17 May 1999 (some three weeks following his motor vehicle accident) he told Dr Tilly that he was 80 per cent better and that he had been back at work doing normal duties.
11 He accepted that on 28 July 1999 he told Dr Tilly that he was 90 per cent better, working full-time and without limitations. He also accepted that he had told Dr Saharay that he had continued his normal occupation. 12 He also accepted that on 13 November 2000 he told Dr Saharay that he had continued all full-time duties up to retrenchment on 28 September 2000. 13 Although he accepted that he said these things to the doctors it was his evidence that after the accident he didn't do digging at cable boxes and home sites. He did not discuss any of the reports with his doctors. He was aware that these reports were prepared for litigation and he had not sought to correct any of the statements made. It was his evidence that after the accident all he did was connect the cables. When he required assistance with other matters he would call for help. This occurred on an average of two times per week. 14 He was cross-examined about his irritable bowel symptom. He accepted that was diagnosed when he was 8 years of age and he suffered from the symptom on an average of once per year. He had not been receiving treatment before his accident. The symptoms were cramps. After the accident he suffered from diarrhoea. 15 He was admitted to hospital in February 2000 complaining of rectinal pain. He accepted that at that time he was suicidal. 16 He had made application for re-employment to the Commonwealth Rehabilitation Service but not since the year 2000. He accepted that he told the Service that he had a Court case pending and probably said that he was awaiting the outcome of a Court case. 17 His present position is that he is unable to work again. 18 He was asked about a left shoulder injury in 1991. 19 He accepted that he had been asked by medical practitioners about any relevant history of injury prior to his accident. He accepted that he made no mention of an injury to his left shoulder in 1991. The reasons for that was that he had completely forgotten about it and was an alcoholic when he injured that shoulder.
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20 He accepted that when the action the subject of these proceedings originally came on for trial in March 2002 he opposed an application for an adjournment on the part of the defendant who had only just found out about the earlier accident and obtained an order for the costs of the adjournment. In respect of the injury in 1991 he did not return to work after he was injured. He described that as a frozen rotator cuff. He received workers' compensation and also claimed damages at common law. He had difficulty in lifting and rotating the shoulder and was not able to dig or lift. The reason for not mentioning this matter was that he was then an alcoholic and he had forgotten all about it.
Other evidence called on behalf of the plaintiff 21 Mr Richard Cavill is a telecommunications supervisor with Skilled Communications. The plaintiff was one of 20 people under his supervision. He recalled the plaintiff being involved in the motor vehicle accident approximately one month after he started with Skilled Communications. He described the plaintiff as having no problems with the work before his accident. Following his accident the quality was still there but where digging was involved or pulling cables the plaintiff would give him a call and he would get assistance for him. He estimated that that happened four to five times a week. Mostly the job was straightforward and did not require any assistance. 22 In September 2000 employees were made redundant because Telstra did not give any more work. Skilled Communications retrenched 25 persons from that project. 23 Mr Gary Tuthill was the operations manager for Skilled Communications. He was the plaintiff's manager. He was aware that the plaintiff was involved in the motor vehicle accident in April 1999. He oversaw the jobs that the plaintiff did. Following his motor vehicle accident Mr Tuthill refrained from giving him work that involved hauling cables. 24 Following the announcement of redundancies in September 1999 some former employees were later taken on as sub-contractors but none were taken on as employees. 25 Mr Tuthill kept no notes of the plaintiff's work performance. 26 Mr Peter Gibbs is a business proprietor who had known the plaintiff for a period of six years. He had met the plaintiff in a social context and
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saw him on a social basis. Prior to the plaintiff's accident he had been a very optimistic person but following his accident he was more pessimistic. Mr Gibbs was away between 12 December 2000 and November 2001 and he had not seen the plaintiff during that period of time. When he did see him after that time he found him to be very negative. The plaintiff had told him that he had been made redundant and was not being re-employed. The plaintiff could not understand this decision and was saddened and disappointed by it. 27 Mr Alan Gamble is a retired carpenter and joiner. In 1996 he was the senior building technician at Murdoch University. The plaintiff worked with him for approximately two years. 28 He described some of the work that the plaintiff did as physically arduous, for example moving furniture and fixing shelving. During that time the plaintiff never exhibited any problems with his neck or left shoulder.
The medical evidence 29 Following the accident the plaintiff initially saw Dr Indrani Saharay on 27 April 1999. At that time he complained of a tender left trapezius muscle and left sided neck pain with approximately 60 per cent of total range of movement. 30 On the following day he saw Dr Helen Tilly. He was concerned that his neck and upper back pain was worse. X-rays taken showed no bony injuries. He also mentioned some chest discomfort which was simple bruising. 31 Dr Tilly diagnosed soft tissue (whiplash) injuries and advised him to take three days off work and to wear a neck collar. 32 Dr Tilly reviewed him on 5 May 1999 when he was a lot better. At that time he wanted to go back to work, however he was due to attend a course which he did wearing a collar. 33 Dr Tilly reviewed him again on 17 May 1999 when he reported that he was 80 per cent better. He had been back at work doing normal duties. 34 Dr Tilly was of the view that he was improving "nicely indeed". She believed that he was back at work performing his normal duties and was happy to be doing so.
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35 On 28 July 1999 Dr Tilly reported that he was 90 per cent better as opposed to 80 per cent better in May. He had received no particular treatment from Dr Tilly except regular reviews. At that time Dr Tilly reported that he was working full-time and she was led to believe without any limitations. She could not see any reason as to why he should not continue to do this.
36 On 24 January 2000 the plaintiff saw Mr Peter Watson, a neurological surgeon, at the request of the plaintiff's solicitors. Mr Watson was of the view that the plaintiff had sustained a soft tissue and ligamentous injury following his motor vehicle accident on 27 April 1999. He was settling with a conservative exercise program and at that time continued to work full-time as a telecommunications field officer. Mr Watson believed that his overall prognosis for recovery was good. 37 On 7 May 2001 Mr Watson reported that the plaintiff had EMG and nerve conduction studies carried out of the left arm. There was no evidence of left C5 radiculopathy. Mr Watson suspected that the plaintiff's pain was related to C5 nerve irritation. 38 On 8 June 2001 Mr Watson reported that the plaintiff had had an MRI scan of the cervical spine on 27 April 2001. In that report he indicated that there was no acute disc herniation but there was asymmetrical left sided uncovertebral joint degenerative change. Mr Watson was of the view that the plaintiff's motor vehicle accident had exacerbated a previously asymptomatic degenerative problem. 39 In evidence Mr Watson stated that when he saw the plaintiff on 24 January 2000 he was suspicious that the C5 nerve root was the cause. At that time he offered surgery but funding was not available. 40 On 6 February 2002 he saw the plaintiff with his clinical psychologist, Mr Chris Perrier. At that time he did not recommend surgery by reason of the plaintiff's psychological state. 41 In cross-examination Mr Watson indicated that the plaintiff presented to him with about 50 per cent movement. He made no mention of his 1991 left shoulder injury although Mr Watson would have asked for details of any relevant medical history. 42 On 21 March 2001 he reported that the nerve was not so compressed that wasting had occurred. On 7 May 2001 he reported that there were no physical signs.
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43 Dr Peter Hollingworth is the Associate Professor of Occupational Health at Murdoch University. At the defendant's request he saw the plaintiff on 18 September 2001. On his examination of the plaintiff he noted that the plaintiff was holding himself in a very stiff manner but when he later saw him outside the surgery setting he had freed up. He considered the radiological evidence indicated that the plaintiff had degeneration. Early degeneration was present on the x-rays taken on the day after his accident and the MRI scan showed the same. The fact that the plaintiff had worked for 17 months following his accident indicated that he worked normally up to retrenchment. The general practitioner and psychologist report at the time said that he was managing. Dr Hollingworth was of the view that retrenchment had affected the plaintiff. He had a bucket load of problems including a divorce. He was unable to see his son. He had lost his job. It was Dr Hollingworth's opinion that the fact that the plaintiff had continued working following his motor vehicle accident showed that it was not a physical injury which prevented him from working.
44 On 16 October 2001 the plaintiff was seen by Dr Dennis Tannenbaum, a consultant psychiatrist, at the request of the plaintiff's solicitor. Dr Tannenbaum considered that the plaintiff was suffering from major depression. He was reactive and irritable. He had persisting suicidal thoughts. Dr Tannenbaum understood that these developed in the workplace. 45 He considered that the plaintiff was suffering from a post traumatic stress disorder the symptoms of which included nightmares, and a fear of driving. He did not consider that the plaintiff's retrenchment would produce post traumatic stress disorder nor the death of his mother. 46 He subsequently saw the plaintiff on 20 February 2002. At that time he considered that there was no significant improvement. He was aware that the plaintiff was seeing a psychologist. He was aware of his history of admission to a psychiatric ward. He considered that the plaintiff was significantly phobic. He was in no shape to work. He was at high risk of suicide. However that could be avoided with therapy and support. He considered there was no change from when he had first seen the plaintiff. His condition was likely to be long term. However if his pain improves so would his psychiatric state. 47 The plaintiff was on anti-depressants and pain medication and he saw that the need for that would continue indefinitely. He also considered that
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the plaintiff would need to be monitored on a regular basis with a half hour visit per month at a cost of $130. 48 He had seen the report of Dr Mustac of 26 February 2002 wherein Dr Mustac diagnosed major depression partly on remission. He agreed with that diagnosis. 49 Mr John Kagi is an orthopaedic surgeon. He examined the plaintiff on 16 October 2001. He took a past history from the plaintiff. The plaintiff told him that he had been treated for depression in 1993. He did not however mention an accident in 1991 and Mr Kagi would like to have heard about that. 50 He described the plaintiff as suffering a sprain from a motor vehicle accident. In his view the plaintiff was fit from a physical point of view. The examination in his findings were extreme. The plaintiff had no movement in his neck. Mr Kagi attributed that to psychological overlay. The evidence was subjective and not objective. In his view there was nothing on the MRI scan to substantiate a disc injury. In his view any pain that the plaintiff had in the shoulder was from degenerative changes to his spine. He had seen Mr Watson's report and the MRI scan that Mr Watson had arranged. He did not agree with Mr Watson's report. There was no electrical evidence to support a radiculopathy. If Mr Watson proceeded with a fusion operation he would be fusing a normal neck. 51 Dr John Ker is a consultant physician in rehabilitation medicine. He saw the plaintiff on 15 November 2000, 23 April 2001 and 8 February 2002. On 15 November 2000 Dr Ker was concerned to determine whether the plaintiff had any sensory disturbance. He had only seen one report of Mr Watson and had not seen the MRI scan. 52 When he saw the plaintiff on 8 February 2002 the plaintiff told him that he was profoundly depressed. Dr Ker was aware that he had an irritable bowel syndrome. 53 Dr Ker was of the view that he was unemployable in his then depressed state. He put down the contributing factors to that as being firstly his prolonged period of unemployment and secondly the pain in his left neck and shoulder. 54 Dr Ker had no note of any prior injuries. The plaintiff had told him that he saw telecommunications as an appropriate field. He had been successful in taking up regular duties. He believed his depression was due
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to his inability to find work. He wished to return to work. He did not tell Dr Ker that he was unable to find work because of his physical activities. He felt that he could work full-time as a field officer. 55 When he subsequently saw the plaintiff he was extremely distressed. Dr Ker found the primary cause was an inability to find work. There was no muscle wasting. There was no evidence of traumatic injury. The extremes of range of movements were reduced. Movement in the shoulder got worse as time passed. He considered that a reduction in rotation from 90 per cent to 50 per cent was a major difference. 56 Mr Chris Perrier is a registered psychologist and has been practising since 1985. He has a Bachelor of Applied Science, Bachelor of Arts with honours majoring in psychology and post graduate qualifications in clinical hypnosis. 57 He first had dealings with the plaintiff in October 2001 on referral from the plaintiff's general practitioner and had since seen him on a frequent basis. He described the plaintiff as requiring an awful lot of work. 58 He prepared a report dated 11 March 2002. A letterhead to that report indicates that Mr Perrier specialises in "pain management and trauma resolution, counselling for workers' compensation issues and quality of life programmes". Mr Perrier stated that he was qualified to treat post traumatic stress disorder and he was working with the plaintiff in respect to this. He was qualified in hypnosis and applied state of the art treatment to persons with trauma and pain. It involved helping a patient to understand and cognitive behaviour therapy. Traditionally he was trained in meditation. Between seeing the plaintiff on 16 October 2001 and 29 July 2002 his account totalled $18,052.50. 59 I note that an account dated 29 July 2002 reads "pain management, trauma and adjustment counselling - 6.5 hours (Court appearance) $942.50". 60 29 July 2002 was in fact the first day of the trial in respect to this matter. 61 The defendant denies liability for the plaintiff's account. According to Mr Perrier he carried out a Beck depression inventory by asking a series of questions of the plaintiff such as "do you feel sad?". In respect to the answers to those questions he concluded that the plaintiff was anxious.
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He accepted that the assessment was entirely based upon the plaintiff's answers to questions. 62 The plaintiff did not mention to him that he had an accident in 1991. He did mention however that he had been unable to see his son and that his mother had died in 2000. The plaintiff told him that his pain was in his bowel. 63 Dr Zelko Mustac is a consultant psychiatrist. He saw the plaintiff for psychiatric assessment on 26 February 2002 at the request of the defendant. 64 Dr Mustac described the plaintiff as a person who obviously has troubles coping. The plaintiff told Dr Mustac that he had recently been physically assaulted and that he had a recent admission to hospital for anal pain which he described as an irritable bowel symptom. Dr Mustac was of the view that he appeared to have suffered from irritable bowel symptom for a long time. He had a history of heavy alcohol intake. He had a history of depressive illness pre--accident. Dr Mustac considered that it was probably related to his alcohol intake and the fact that he had separated from his wife in 1991. There was a strong family history for mental illness. The plaintiff had a motor vehicle accident but had continued to work. The plaintiff had expressed resentment at being retrenched because others were re-employed and it did not include him. Dr Mustac found there was little levity in their interview and the plaintiff's face lacked expression. He concluded that the plaintiff was suffering from a moderate degree of depression partially in remission. He was also of the view that the plaintiff had attempted to exaggerate his degree of memory impairment. He considered that the plaintiff had suffered anxieties throughout most of his life. 65 The plaintiff attributed all of his problems to the motor vehicle accident. However in Dr Mustac's view the admission to hospital was due to anal pain and he could not see any correlation between the accident and the plaintiff's psychiatric condition. 66 Dr Mustac found no evidence of post traumatic stress disorder. He was of the view that the plaintiff had ceased work because he was made redundant. He was asked about some 120 visits to Mr Perrier, the psychologist, some lasting six to seven hours. He considered that this was highly inappropriate because it was not possible to maintain professional counselling over this period of time. If the plaintiff was suicidal his safety should be ensured by him either being in the company of friends or in
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hospital. He found 120 visits over a short period of time a most unusual form of treatment. He suspected that there would be no improvement from this treatment. The plaintiff had a long-standing problem going back to his childhood that was not related to the motor vehicle accident. The plaintiff did not accept any blame or responsibility for the breakdown of his marriage notwithstanding his alcohol problems. It was Dr Mustac's view that his problem was characteriological and long term. It was unlikely to change in due course. 67 It was Dr Mustac's opinion that there was no temporal connection between these matters and the motor vehicle accident. 68 When shown a handwritten list of medications it was Dr Mustac's opinion that the list was consistent with the plaintiff's anxiety and attending medical practitioners to gain treatment. He was not surprised that the plaintiff was willing to take that number of medications. 69 The plaintiff made no mention to him of his accident in 1991. 70 Mr Michael Levitt is a surgeon. He saw the plaintiff on 23 July 2002 in relation to his complaints of perirectal cramping pain that occurs almost always at night time and lasts about 45 minutes. It occurred with variable frequency but at most happens once per week. According to the plaintiff this had been present for two years. 71 Mr Levitt's diagnosis was of a condition referred to as proctalgia fugax. There was no known specific cause for this condition although it is not infrequently associated with the personality type often seen associated with stress related symptoms. It was Mr Levitt's view that there was no known cause for proctalgia fugax and no evidence to attribute its onset to the motor vehicle accident.
General findings 72 The plaintiff alleges that on 27 April 1999 he was involved in a motor vehicle accident that caused him severe physical injury resulting in pain in the left neck and shoulder. As a result of that accident he alleges that he is incapacitated for work and that the accident has caused a psychiatric condition. As a result of that he presents in a debilitated physical state and seeks damages. 73 It is the defendant's submission that the plaintiff suffered an injury that was minor in nature and that it is not the cause of any past or future economic loss.
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74 The issue therefore is whether or not the plaintiff was injured and if so to what extent. It requires a determination of the issue of credibility of the plaintiff.
75 The first thing that is evident from all of the doctors who have been called in relation to the physical injury is that they have all found the same pathological signs, namely that there has been a long-standing pre-existing minor degenerative disease of the cervical spine. There has been no evidence of wasting of muscles, no sign of physical injury at all. Putting the plaintiff's case at its highest there is the evidence of Mr Watson that there may be, due to a narrowing of the spinal column where the nerves leave the spinal column, some compression of the nerves which are causing pain, but none of the tests carried out, the EMG or any of the other tests that were carried out confirm that. 76 In the end Mr Watson is saying that he will leave it to the plaintiff to decide whether he wants to have surgery to decompress the nerves because he suspects, and only suspects, that this may be the cause of the problem. 77 That is the highest that the plaintiff's evidence can be put in relation to there being any physical defect. Its relation to the motor vehicle accident can only be, as has been stated by the witnesses as maybe an exacerbation of that pre-existing compression of the nerve. Its not that the accident caused the spinal column to narrow and cause the nerves to compress, but simply that state which existed prior to the accident in some way was made symptomatic. 78 However none of the other doctors agree with Mr Watson. I prefer the evidence of Mr Kagi on this point that the operation to be performed by Mr Watson would simply be fusing a normal neck. 79 Neither is Mr Watson confident that his prognosis is correct. He has stated that none of the tests he carried out confirmed that was in fact the case, that is that there was a C5 problem, but he suspected it and he suspected and reached the conclusion it might be a cause because of the plaintiff's complaints of pain and that's all. The plaintiff had complained of pain in his neck and pain in his shoulder. 80 Because there is no physical evidence of injury all of the doctors have had to rely entirely upon the history of injury and complaint made by the plaintiff. The plaintiff assesses his pain as ranging as high as eight to nine out of 10 where 10 is the worst pain imaginable and one is the least. He has presented himself to a number of doctors with different ranges of
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movements in the spine which he claims to be stiff. In particular to Dr Hollingworth he presented with a very restrictive range of neck rotation but when observed casually afterwards by Dr Hollingworth when the plaintiff was said to be leaving in a motor vehicle, he was seen to move his neck in a way which was totally inconsistent with his presentation. 81 Starting chronologically at the beginning of Dr Tilly's reports and Dr Saharay's reports the evidence is that following the motor vehicle accident the plaintiff was initially given three days off work. He took initially 10 days off work, went to a course to check on or upgrade his capacity to satisfy Telstra that he could do the job of connecting junctions and then returned to work. 82 In all the medical reports of those doctors who obtained from the plaintiff a description of what work he was doing post accident in relation to pre-accident he responded in every case by saying that he had returned to normal duties. 83 It is clear that he was enjoying his employment in the sense of being able to do his normal duties and was not claiming to any of those doctors a fear of either not being able to carry out his duties or that he would be terminated because he didn't do the work. Even at the time of seeing Dr Ker some months after he had been made redundant the plaintiff continued to be optimistic that he wanted to continue in the telecommunications industry. The plaintiff even told Dr Ker that he was looking to expand his skill base in terms of telecommunications to make himself an even more attractive employee. 84 Furthermore I do not accept the plaintiff's reasons for his failure to mention the fact that he had been involved in an accident in 1991. The plaintiff accepted that he injured his left shoulder and suffered from left shoulder pain in 1991 and that he claimed workers' compensation and was off work for a shoulder injury for six to nine months. He also claimed damages at common law and received an award of $10,000 and accepted that the injury he claimed for was hotly disputed on the basis that he had no injury at all. The plaintiff has said that he had completely forgotten about it because he was an alcoholic at the time when he injured his shoulder. The alleged problems at the time were that he had difficulty lifting and rotating the arm and he was unable to dig or lift. I cannot see any reason why the plaintiff would not remember this accident. I draw an adverse conclusion against the plaintiff for his failure to disclose this accident. It is quite apparent that he had ample opportunities to mention
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this to numerous medical practitioners whom he saw. It caused an injury similar to the injury in this case and raised a similar controversy as in this case. 85 I accept Mr Kagi's evidence that he could not agree with an operation for the reasons that there was nothing wrong with the plaintiff's spine. In my view Dr Mustac also gave a detailed assessment of the plaintiff and I accept his findings in full. 86 In the circumstances I am not prepared to accept the plaintiff as a credible witness.
Assessment of damages 87 The plaintiff claims damages for loss of amenities being pain and suffering and loss of enjoyment of life both past and future. 88 In this respect I accept the evidence of Mr Kagi that the plaintiff sustained a sprain of his cervical spine in the motor vehicle accident. He had pain in the left shoulder that is almost certainly referred pain from the cervical spine that is likely to be radicular in nature as a result of the inter vertebral foraminal narrowing at the C4/5 and possibly C3/4 level. 89 Mr Kagi did not believe despite his complaints of pain and apparent stiffness that he was likely to be left with any physical injuries in the long term as a result of the motor vehicle accident. 90 The plaintiff's statement of claim sets out the particulars of the plaintiff's injuries and the symptoms as follows: "(a) Headaches; (b) Soft tissue injury to the cervical spine; (c) Pain to the neck; (d) Pain and restricted mobility to the left shoulder; (e) Pain to the left arm; (f) Pain and bruising to the chest; (g) Pain to the back;
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91 Only two of those allege injuries and the rest are alleged symptoms. At (b) the plaintiff alleges a soft tissue injury to the cervical spine which I find he received. At (f) he alleges pain and bruising to the chest. I accept that he received some bruising to the chest but that cleared up within a matter of days. 92 In this matter I prefer the evidence of the defendant's doctors, namely Dr Hollingworth, Mr Kagi and Dr Mustac to that of the medical practitioners called by the plaintiff. 93 In my view in this matter there is a large psychiatric component that pre-existed the motor vehicle accident and his condition in that respect has nothing to do with his motor vehicle accident. I accept in full everything that Dr Mustac has to say about that aspect. In my view none of the psychiatric aspects of the plaintiff's condition are related to the motor vehicle accident. 94 I also accept Mr Kagi's evidence in relation to a fusion operation on the plaintiff's neck. I prefer his evidence to that of Mr Watson. Mr Kagi's view was to the effect that any operation would be fusing a normal neck. 95 I propose to award the plaintiff loss of amenities on the basis that he has suffered a sprain to his cervical spine and is not likely to be left with any physical injuries in the long term as a result of the motor vehicle accident. 96 Pursuant to s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 I am required to assess non-pecuniary loss as a proportion, determined according to the severity of the non-pecuniary loss of the maximum amount that may be awarded. The maximum amount of
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damages that may be awarded for non-pecuniary loss at the present time is $240,000. The maximum amount may be awarded only in a most extreme case (s 3C(3)). I am of the view that the plaintiff's non-pecuniary loss should be assessed on the basis of 10 per cent of a most extreme case. Ten per cent of a most extreme case is $24,000. 97 From that amount I am required to deduct amount B (threshold - deductible) which presently stands at $12,000. 98 It follows that the plaintiff is entitled to the sum of $12,000 for loss of amenities, being pain and suffering and loss of enjoyment of life both past and future. 99 The plaintiff claims past economic loss as follows: "Past Economic Loss The Plaintiff was made redundant in September 2000. Had it not been for the injuries in the normal course of events he would have expected to find another job by the end of December 2000. His average net weekly earnings for the three years 1998, 1999 and 2000 was $500.45. From 1 January 2001 to the date of trial, 29 July 2002 = 82 weeks. 82 weeks x $500.45 net per week = $41,036.90 Interest at 4% per annum on $41,036.90 for 1.5 years = $2,462.21. Total past loss plus interest = $43,499.11" 100 Following his motor vehicle accident the plaintiff took 10 days from work and did a course to upgrade his capacity and then returned to work. All of the evidence indicates that he returned to normal duties. That is what he told the medical practitioners. He was optimistic about his employment. The plaintiff was even optimistic when he saw Dr Ker and said that he was looking to expand his skills base. It appears that there was then a deterioration in the plaintiff's psychological condition. He complained because he had not been re-employed and was becoming depressed. He is still unemployed and still depressed. 101 However the plain simple facts show that following his motor vehicle accident the plaintiff worked in the job that he was doing pre-accident for a further 17 months before he was retrenched. To various doctors the plaintiff alleged that he was not re-employed because of his
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medical condition. However there is absolutely no evidence to support this proposition. 102 The plaintiff is now attempting ex post facto to sheet home all his problems to the motor vehicle accident. 103 I am not satisfied that the plaintiff has lost any past loss of earning capacity in respect to the motor vehicle accident. 104 I would not allow anything under this heading. 105 The plaintiff claims future loss of earning capacity as follows: "Future Loss of Earning Capacity Due to the Plaintiff's injuries he is precluded from performing work of a physical nature and it will therefore be necessary for him to re-train into some form of employment that is within his capacity. In this regard it would be reasonable to allow a further period of 3 years' loss: $500.45 x 143.6 (multiplier for 3 years) = $71,864.62 less 6% for contingencies = $67,552.74." 106 In my view the plaintiff's motor vehicle accident has not caused any future loss of earning capacity for the reasons stated when dealing with past loss of earning capacity. I would not allow anything under this heading. 107 The plaintiff's claims future medication and medical treatment as follows: "Medication The Plaintiff will need to take medication for a further three years. All medication currently being taken by the Plaintiff, with the exception of Colofac and Fleet, is available to Health Care Card Holders at a cost of $3.60 and the calculations below are based on the assumption that the Plaintiff will qualify for a Health Care Card: Cipramil 20mg 3 tablets daily - 28 tablets in a box @ $3.60 per box -
1.25 boxes per week $ 4.50
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Tramal 100SR 2 tablets daily - 20 tablets in a box @ $3.60 per box -
three-quarters of a box per week $ 2.70 Naprosyn 250mg 2 tablets daily - 100 tablets in a box @ $3.60 per box -
one box every 7 weeks $ 0.52 Panadol Extend 665mg 3 tablets daily - 30 tablets in a box @ $3.60 per box -
two-thirds of a box per week $ 2.40 Zantac 150mg 2 tablets daily - 60 tablets in a box @ $3.60 per box -
one box every 4 weeks $ 0.90 Antenex 5 mg 4 tablets daily - 50 tablets in a box @ $3.60 per box -
say half a box per week $ 1.80 Lipex 40mg 1 tablet daily - 30 tablets in a box @ $3.60 per box -
say one box every 4 weeks $ 0.90 Naprosyn 500mg Suppository 3 per week - 50 in a container - @ $3.60 per box -
say one box every 16 weeks $ 0.23 Quinate 1 tablet daily - 50 tablets in a box @ $3.60 per box -
say one box every 7 weeks $ 0.52 Fleet Phos-Lax 45ml 3 times per week - $15 per bottle - say one bottle
every two months $ 1.88
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Colofac 135mg 3 tablets daily - 90 tablets in a box @ 47.05 per box
say one box every 4 weeks $11.76 ______ $28.11 $28.11 per week x 143.6 (multiplier for 3 years = $4,036.60 Consultations Psychiatrist One visit per month for six months at $130 per visit = $780.
$780 for six months = $30.00 per week
$30.00 x 25.35 (multiplier for six months) = $760.50 Psychologist One visit per week for six months and then one visit per
fortnight for a further six months at $145 per visit:
36 visits over 12 months x $145 = $5,220
$5,220 = $100.38 per week
$100.38 x 50.7 (multiplier for 1 year) = $5089.27 Surgery Mr Watson has suggested the need for further surgery and the cost of such surgery is between $12,000-$15,000 Therefore: Total for future medication $ 4,036.60 Total for future consultations $ 5,849.77 Total for future surgery $12,000 - $15,000 Total cost for future treatment: $21,886.37 to $24,886.37" 108 The medical evidence of Dr Mustac and Dr Hollingworth which I accept is to the effect that these drugs are either not required or relate to matters that are unrelated to the plaintiff's motor vehicle accident. 109 I would not allow anything for the cost of medication.
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110 In relation to the claim for future surgery in the sum of $12,000 to $15,000 I would not allow that claim either. There is nothing that indicates that surgery is necessary and I prefer the evidence of Mr Kagi that to operate would be simply fusing a normal neck. Neither would I allow anything for psychiatric and psychological consultations. I have already found that his psychiatric and psychological condition is unrelated to his accident.
111 The plaintiff also seeks the sum of $18,052.50 as special damages being the accounts from Mr Perrier. I found Mr Perrier a most unsatisfactory witness and I accept everything that Dr Mustac says about Mr Perrier's treatment of the plaintiff. I also accept Dr Mustac's evidence that none of these matters are related to the motor vehicle accident. For that reason I do not allow the claim for special damages.
Conclusion 112 It follows that the plaintiff is entitled to judgment against the defendant in the sum of $12,000.
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