Mtsambiwa v Zagari - [2019] WADC 154

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   MTSAMBIWA -v- ZAGARI [2019] WADC 154
CORAM:   O'NEAL DCJ
HEARD:   28-29 AUGUST 2019
DELIVERED          :   15 NOVEMBER 2019
FILE NO/S:   CIV 3919 of 2018
BETWEEN:   KUDZAI BULELANI MTSAMBIWA
Plaintiff
AND
SANDRA TEIXERIA ZAGARI
Defendant

Catchwords:

Negligence - Motor vehicle accident - Causation - Damages - Turns on own facts

Legislation:

Civil Liability Act 2002 (WA), s5D
Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3B, s 3C

Result:

Action dismissed

Representation:

Counsel:

Plaintiff	:	Mr N F Morrissey
Defendant	:	Mr D R Clyne

Solicitors:

Plaintiff	:	Accident Claims Lawyers
Defendant	:	Hall & Wilcox

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

Nil

O'NEAL DCJ:

Just after 7.00 am on 30 October 2017, the plaintiff was sitting in the driver's seat of his black Mercedes coupe, waiting for the light to change at the intersection of North Lake Road and Forrest Road in Bibra Lake. The defendant sat in her car, a manual transmission Honda Accord sedan, stopped directly behind the plaintiff's Mercedes coupe.
When the traffic light for their direction of travel turned to green, the defendant began to release her clutch and apply throttle, in anticipation of the plaintiff moving off. The plaintiff's vehicle did not move however. The defendant quickly noticed this and braked, but too late, and the defendant's vehicle came into contact with the rear of the plaintiff's Mercedes (the accident).
The defendant stopped her car and got out to look for damage. The plaintiff did the same. The defendant apologised to him. Neither party observed any damage to the defendant's vehicle, or any broken glass or plastic. After checking to make sure his car was safe to drive, the plaintiff got back into his car and drove off.
There is a question, relating to the force of impact, as to what damage exactly was caused to the plaintiff's car. Although it was plainly a very minor accident, the evidence of the plaintiff and defendant are in conflict.
Neither party produced any objective evidence of the forces involved in the accident. The plaintiff said that in November 2017 he took his car to a panel beater. No witness was called or documents tendered with respect to the work done but I was told that repairs carried out cost just under $1,300, with a further approximately $300 for a reversing sensor, for a total cost of $1600.15.
On 17 January 2018, the plaintiff sought medical treatment for what is said to be an injury arising from the accident, 'Whiplash Associated Disorder'.
The plaintiff now seeks damages for injury said to have been caused by the accident. The defendant has admitted that her car struck the back of the plaintiff's Mercedes.
The issues in this trial are whether the accident caused the plaintiff to suffer a physical injury, if so to what extent, and the measure of any loss so caused.

The plaintiff's background

The plaintiff is now 35 years old. He was born in Zimbabwe. He completed high school in Zimbabwe but moved to Australia for university. He completed a Bachelor of Business in Finance at the University of Western Australia and thereafter did Honours. He is a chartered accountant and has obtained a Masters in Science and Resource Economics.
While he began his working life as an accountant in public practice, the plaintiff is currently employed in-house for a mining company based in Perth, with operations in West Africa. He holds the position of group financial controller.
His recreational life includes a considerable amount of physical activity. His participation in team sport has brought some significant physical injuries. He fractured a collarbone playing for his school in Zimbabwe. While playing soccer for the University of Western Australia in 2014 he tore his anterior cruciate ligament (ACL). This year he tore a hamstring and subsequently his Achilles tendon while playing 'Master' grade soccer.
He is a regular gym goer. His gym work began as rehabilitation following the ACL injury. In late 2017 he took up 'boxercise', a form of exercise that is based on the training for the sport of boxing, using boxing equipment.
For some years he has been a frequent user of massage services. In his evidence he said that it 'helps with my active lifestyles … as well as playing sport and recovery from my surgeries that I had'.
The injury that he says he received in the accident has not, on the plaintiff's evidence, interfered in any significant way with his recreational activities or his working life.

The nature of the accident and the plaintiff's evidence about his injury

At about 6.00 am on 30 October 2017 the plaintiff was at his gym. He finished working out at about 6.45 am or 7.00 am. He then set out down North Lake Road in Bibra Lake to drive home. When he reached the traffic light at Forrest Road, the signal was red for his direction of travel, so he stopped. In his evidence before me he said that:
Next thing I heard a loud bang, and I was jolted forward. I had a look in my mirrors to see what had happened, and it looked like the lady was driving behind me was trying to get into a slip road on the left and hit me … I looked around to make sure that it was safe. I was a bit startled and shook at the time. Once I assessed it was safe I took off my seatbelt and I went out the car to see what had happened.
Asked by his counsel for further details of 'being jolted forwards' the plaintiff said:
I - well, I heard the bang, and I felt the car sort of move forward … the car in front, from memory was still - was still stationery, so I slammed the brakes and didn't go into that one.
Following the accident the plaintiff got out of his car to inspect it, and exchanged details with the other driver. Once he had done that, as he said, he 'sort of gathered myself, I made sure that the car was OK to drive, and I headed home'.
The plaintiff gave no evidence in his evidence-in-chief about damage to either car. In his cross-examination however he said that he did not look at the defendant's car, but on his Mercedes coupe 'the whole bumper was dislodged, and the sensors were damaged, and the paint was scratched'. Despite that, he regarded the vehicle as safe to drive, and he did drive it. At some time in November he took it to be repaired, at the cost of his own insurer.
The defendant's version of events is quite different. She told me that on the morning of the accident she was driving her manual transmission Honda Accord Euro. She had stopped at the red traffic light immediately behind the plaintiff's car and when the traffic light changed to green she allowed her car to roll forward, assuming that the plaintiff would also move off. She said she '… let the car roll and it rolled into the plaintiff's car … he hadn't moved. I assumed he had moved and I went to start moving and it was too late, yeah'.
The defendant said that the speed of the impact was 'like, two kilometres per hour. Yeah, like, I literally rolled, yeah'.
After the impact she put the handbrake on her car and turned the engine off and went to check both vehicles. She looked at the plaintiff's car and she said 'everything was fine. My car was fine, but I gave him my details just in case because the lights had gone green, the cars were going and we hopped in our car and left, that's it'. She said there was no damage to her car. There was no broken glass from either vehicle. As to the plaintiff's car, the defendant said that while 'There may been like – scratch and that's it in the paint, there were no hits or dents…'. She didn't see '…anything like that, nothing at all'.
In a one page handwritten statement that the defendant gave one year after the accident, she described it in this way:
the light turned green and I thought the Mercedes Benz coupe … had started driving and I took off driving and broke when I realised that he hadn't but my car collided into his. I stepped out of my vehicle and saw no damage on either my vehicle or his but exchanged numbers just in case so as not to hold up the traffic any further.
In her cross-examination the defendant insisted that she was 'too close to the car when she went to accelerate, it was too close and I hit him'. She accepted that 'I took off driving' was accurate 'because I rolled. I looked around. I saw the light was green, then I accelerated and it was too late. I was too close to the car because I had rolled initially'. She accepted that she had started to accelerate '… but it's not like I actually had any – like, I didn't have any time to build any speed'.
Later she told me that she had been balancing her car with the throttle and clutch and she raised her foot too far off of the clutch so that the car rolled forward a little bit. When she saw the light turning green she 'went to go forward and he was right there. I was too close'. She said that her foot was coming off the clutch as she hit the plaintiff's car.
In cross-examination it was effectively suggested that the statement she had given a year after the accident suggested that her car was moving faster than she had said in her evidence-in-chief. She did not accept that. Her evidence as to the extent of damage to both vehicles was unchallenged.
There was no evidence as to the condition of the plaintiff's car prior to the accident.
The defendant attempted to tender photographs of what was said to be the rear of the plaintiff's car, taken at the smash repairers before the repairs were done. The defendant however was unable to prove when and how the photographs were taken and the plaintiff declined to make any admissions with respect to the photos. Nor did the plaintiff present any photographs of the claimed damage to the plaintiff's vehicle. There was no challenge to the proposition that there was no damage to the defendant's vehicle.
With respect to his physical condition after the accident the plaintiff said:
Initially at that point, or that day, I felt kind of startled and I - I wasn't sure I - you know, what had happened. Following that, the next couple days I started to feel sort of the stiffness of the neck and then a bit of a throbbing of the neck … and a - sort of pain in my sort of my neck where my neck meets my shoulders … like both sides where my neck meets my shoulders, pretty much.
The plaintiff also said that for about the first week after the accident he was experiencing some discomfort in his lower back but 'that was more mild or less - less painful or less discomfort than my neck'.
In his evidence the plaintiff rated his pain in 'the initial period' as 'probably a 5, 6 out of 10 I think'. He explained, however, that that was by comparison to other injuries that he has suffered, such as to his ACL and most recently his Achilles tendon which he found excruciatingly painful.
The plaintiff said that he was not sure what to think about this pain in the 'initial period' so he:
Just sort of self-medicated. I just took painkillers. You know, when I get injured at sport I usually, you know just take painkillers. So just over the - over the counter painkillers for the first sort of couple of weeks.
After that 'first sort of couple of weeks' the plaintiff said that:
As well as painkillers I sort of, you know - I thought maybe if it's just muscle pain - massages, so I went for massages to - to help with that. And then after sort of a while when I saw - OK this is still not going away, that's when I sort of thought about seeing a doctor.
When this occurred to him the plaintiff said:
From memory - I went to Bigfoot Massage for - and specifically had a discussion with them about - how - what - sorta of neck pains and neck problems so they could focus on that.
The plaintiff said that he then received a massage and 'it would have been a remedial massage, but then focussing on my neck- neck and shoulders'.
The records that were discovered show that on 21 December 2017 the plaintiff did indeed go to 'Bigfoot Professional Massage' and paid $75 for a massage. The plaintiff said that that was the first time that he went to Bigfoot for this problem. The plaintiff went to Bigfoot specifically for this treatment of his neck because, as he said, 'they are really professional and they are good at what they do, so I went to see them'.
In January 2018 the plaintiff said, 'that's when I decided, you know, this - this has been continuing for a while, so maybe I should see a doctor with … regards to this'.
The plaintiff said that he used a downloaded application to make a booking with the clinic that he normally attended, the Canning Bridge Medical Centre. This application allows someone to see when particular listed doctors are available and to book an appointment. The form on the booking application asks the user if their medical issue relates to a motor vehicle accident. The plaintiff said he answered 'yes' to this.
The plaintiff's regular doctor was not available and so he made a booking with Dr Lo at the same clinic. He went to see Dr Lo on the morning of 17 January 2018.
The plaintiff said that he answered Dr Lo's questions about what had happened and what his symptoms were. He said that he told her that he had been:
Self-medicating with over the counter - over the counter painkillers, as well as going for massages as well as doing some self-massaging, so using foam rollers and massage balls, and she said if you are managing it … if you're managing your pain and your condition that way, continue doing that.
Even on the plaintiff's evidence, at this stage he had gone for just one massage to deal with issues in his neck, not 'massages'. Dr Lo's notes of his attendance for that day do record the fact that the plaintiff had been taking Nurofen and Panadol for intermittent pain, and that he had not seen other doctors so far. There is however no reference to the plaintiff dealing with his complaint with massage or massages.
In the course of her consultation with the plaintiff, Dr Lo created a doctor's referral letter to a physiotherapist, told the plaintiff to rest, use ice and heat as tolerated with 'compression, elevation, muscle rub, Panadol and Nurofen as required', and recorded her advice to the plaintiff to review the matter in one month 'if not settled'.
Later that same day, the plaintiff received a telephone call from someone that he believed was connected with the medical appointment booking application he had used to arrange to see Dr Lo. The plaintiff said that the person who telephoned him 'asked me whether I wanted to speak to a lawyer about the motor vehicle accident'. The plaintiff said 'yes'. The plaintiff said that he was then transferred directly through to the 'lawyers', and that he spoke to 'Nigel'. 'Nigel' is not in fact a lawyer but a paralegal, Nigel Smith, employed by the plaintiff's solicitors.
On 23 January 2018 the plaintiff signed a retainer with his solicitors on a 'No win-no fee' basis. The plaintiff was also made aware by Mr Smith of the availability of a policy of insurance to assist with the plaintiff's costs in the event the litigation was unsuccessful. The plaintiff obtained that insurance, and is of the understanding that in the event he fails at trial the insurer will compensate him for any costs order for which he would otherwise be liable. So far as he is aware, the plaintiff said he understands that he is '… not in risk of having to pay anything …' if he loses this action.
Up to this point, the plaintiff had not reported the accident. The same day that the plaintiff signed a retainer to engage his solicitors, he made an online crash report with respect to the accident. The plaintiff said that he 'had assistance' in filling out the crash report.
In the section of the crash report with respect to the collision information, the report claims that the defendant's vehicle was travelling at 30 kilometres an hour when it struck the plaintiff's car. The plaintiff agreed in cross-examination that in fact he had 'no idea' what the speed was. When asked if he had help with that section he said 'Probably. Yes. Yeah'.
The plaintiff was asked by his counsel what happened with his treatment after he spoke to 'Nigel' on 17 January 2018, and the plaintiff described continuing to receive massages and take painkillers:
When the pain was severe - or when - when I needed the painkillers. Continued with my - organised the - a booking with the - with a physiotherapist … and continued with my exercises and self-massaging etc.
The plaintiff was then asked 'and when you say you made a booking with the physiotherapist, which physiotherapist did you see'. To this the plaintiff said 'I saw Taryn from Guardian Physiotherapy'.
The question about the plaintiff making a booking with a physiotherapist elides the protracted efforts it took before the plaintiff actually saw a physiotherapist for his claimed injury. As he rightly said, he saw 'Taryn' from Guardian Physiotherapy, but that was because on 17 January 2018 Mr Smith organised a referral to a physiotherapist of his law firm's choosing, and Mr Smith persisted until the plaintiff actually saw the physiotherapist.
The plaintiff was then asked, somewhat misleadingly, 'and can you remember what occurred at the - so I think the initial appointment was early March?' To this the plaintiff answered, 'yes, as I mentioned before, I saw her early March 2018 …'. In truth, this was the first appointment that the plaintiff kept.
The records of Guardian Exercise Rehabilitation with respect to their dealings with the plaintiff became an exhibit at trial. They show that the plaintiff's 'initial appointment' was not in early March, and that it was in fact a vexed exercise for Mr Smith and Guardian to get the plaintiff to attend. Those records show that the referral for the plaintiff came from 'Mr Nigel Smith of Accident Claims Lawyers', and an email was sent to Mr Smith thanking him for the referral and advising that:
We will contact Ms Mtsambiwa [sic] immediately to make arrangements for an initial consultation in the next 24 hours to determine her [sic] requirements, before proceeding with treatment.
On 17 January 2018 the records note a phone call 'to patient'. Among other things the note records that the plaintiff:
Hasn't had physio previously - has a referral from Canning Bridge Medical - patient was stationary at a set of red lights. Lights were red. Was rear ended - requested an appointment on the weekend but I advised we work during the week - he said he will call back in two weeks as he is busy with work. I said I will touch base in two weeks if I don't hear from him.
True to their word, Guardian called the plaintiff back on 2 February 2018 to book an appointment. The note records 'was advised that he is busy over the next few days. Kudzai to call me back - will update Nigel'. On 9 February there was another phone call recorded to the plaintiff 'Called. Didn't leave message'.
On 12 February 2018 the records note a 'phone call to lawyer' leaving a message. On 13 February:
Nigel returned my phone call - advised patient doesn't seem interested in referral - Nigel to give Kudzai a call to see if he is interested in physio and Dehammi to try again once Nigel confirms.
A few minutes later a phone call back 'from lawyer' is noted. It records:
Nigel contacted patient. He is still interested in the claim. Been busy with work. Nigel advised to call at the end of the week if I don't hear from him.
Why the physiotherapy provider might be concerned with the fact that the plaintiff was interested in the claim, as opposed to treatment, was not a matter that was explained or pursued at trial.
On 19 February 2018 a phone call to the plaintiff is recorded, confirming a time for an appointment, among other things. This was the 'initial appointment'. A minute later Guardian send an 'SMS alert', apparently to the plaintiff as follows:
Appointment scheduled with Taryn of Guardian Occupational Physio at 7.50 am on 23 February 2018 please contact … to reschedule if unable to attend.

A further reminder to the plaintiff was sent by SMS on 22 February at 9.45 am. At 9.48 am Guardian's records show as a 'library document', an inbox email relating to the plaintiff, which I infer is a response to the reminder. At 9.55 am on the same day a new SMS alert is sent scheduling another appointment for 2 March 2018.
The plaintiff finally saw Ms Taryn Schuster from Guardian Occupational Physio when she went to his house on 2 March 2018. The plaintiff completed a consent form that was provided and was assessed by Ms Schuster. Ms Schuster filled out a Physiotherapy Spinal Assessment form (PSA) recording the results of her examination of the plaintiff and some information she obtained from him. At Ms Schuster's request the plaintiff completed an Őrebro musculoskeletal screening questionnaire (OMSQ) and a Neck Disability Index (NDI).
In the course of the plaintiff's evidence-in-chief a bundle containing these documents was put in front of the plaintiff without objection and, without objection, he was reminded of his answers to questions in the forms.
There were a number of answers in these documents that presented a forensic challenge to anyone wanting to make the case that the plaintiff had suffered an injury of any consequence.
In his evidence-in-chief the plaintiff was reminded of his earlier evidence that he was experiencing pain at '6 out of 10', 'initially after the accident'. He was then asked how the intensity or the position of the pain had changed by early March 2018. To this the plaintiff answered that 'by then it was probably a little bit less than that. So probably give it a 4 or 3'.
Unsurprisingly perhaps, that was the answer he had given to Ms Schuster in the PSA. If it was true, it meant that the problem described to Dr Lo had not settled within the month she had set for a review.
In answer to questions on the OMSQ, where a zero response meant 'not at all' and 10 equated to 'extremely', the plaintiff provided the following answers:
•Rate how much of burden it is to perform all the things you need to do in a normal day? - 0.
•For the last 2 - 3 days, rate on average how bothersome your pain or problem is? - 2.
•For the last 2 - 3 days, what percentage of the day do you notice your pain or problem? - 2.
•What do you think is the risk that your current pain or problem will not improve? - 0.
•Think of your life; rate how satisfied you are with your current situation? - 10.
•Physical activity makes my pain or problem worse? - 2.
•I should not do my normally daily routine or work with my present pain or problem? - 0.
•I can walk for an hour or participate in my normal light recreational or sporting activities? - 10.
•I manage my daily routine and social activities (eg shopping or transport or see friends) - 10.
The plaintiff indicated in response to the first question on the OMSQ that his 'current pain or problem' started 'three to six months' ago. He said in evidence that he provided that answer 'because I believe that this was brought about by the motor vehicle accident that I had'.
On the NDI the plaintiff chose the following answers from a range of graduated, alternative answers in each section:
•Pain intensity - the pain is moderate at the moment.
•Personal care (washing, dressing, etc) - I can look after myself normally but it causes extra pain.
•Lifting - I can lift heavy weights but it gives extra pain.
•Reading - I can read as much as I want to with slight pain in my neck.
•Headaches - I have no headaches at all.
•Concentration - I can concentrate fully when I want to with no difficulty.
•Work - I can do as much work as I want to.
•Driving - I can drive my car without any neck pain.
•Sleeping - I have no trouble sleeping.
•Recreation - I am able to engage in all my recreation activities, with some pain in my neck.
Out of a total possible score of 50 in the NDI, with 50 indicating the worst position, the plaintiff scored six.
At the 2 March 2018 appointment Ms Schuster carried out a spinal assessment on the plaintiff, palpating the areas where he had been complaining of pain or discomfort, and recording both her observations and his answers in the PSA. Among other things, the PSA includes a graphic scale from zero (no pain) to 10 (worse possible pain). A circle has been drawn that cuts the line of the scale at about two and half on the left, just encompassing four on the right hand side ('So probably give it a four or a three'). Above that Ms Schuster has written in 'ache'.
Ms Schuster palpated the plaintiff's cervical and upper thoracic areas and asked the plaintiff, in effect, where it hurt. On a graphic representation of the spine she has recorded her observation that in the area shown from C1 to T2 there was no specific tenderness or hypermobility on palpation.
The PSA also contains outlines of the human form from the front and back. Ms Schuster made marks on the outlines indicating areas that were pain free and those where some pain was experienced. The only area that she has marked as painful is a small circle at the very base of the back of the neck and down between the shoulder blades. Here she has written, as she was told, that the pain was 'intermittent to sharp pain, dull ache and stiff'. She has recorded that overhead movement was uncomfortable, and that prolonged sitting and lifting were aggravating factors. Factors that eased the pain were recorded as 'rest - foam roller - heat'. There is no mention of massage providing relief.
While Ms Schuster did not observe any pain or tenderness on palpation of the area of the cervical and upper thoracic spine, she did observe increased muscle bulk in the upper trapezius area, that is, the muscles at the top of the shoulder just coming away from the neck. As she said in her evidence, the bulk of these muscles indicated to Ms Schuster that the plaintiff was using these muscles frequently, and well.
Her clinical impression, which she recorded, was that of 'mild cervical and thoracic discomfort … more so because of overactive muscle groups, so that upper trapezius, like we said at the start'.
Ms Schuster recalled the plaintiff telling her that he had not been attending the gym regularly since the motor vehicle accident, although he had done so quite frequently before, and he had also played soccer. Ms Schuster did not recall the plaintiff mentioning anything about taking part in 'boxercise' nor in particular that he had been taking part in boxercise the day before she saw him, as was in fact the case.
Based on what the plaintiff told her, she concluded that the problem of the overactive trapezius muscles was caused, not by exercise, but '… from what I can gather, he had been doing a lot of plane travel and had been sitting in prolonged positions, which would lead to an increase in overactivity of the upper trapezius. And because he hadn't - well to my understanding, hadn't been exercising as much, the other muscles which would have been helping to correct that were fatigued…'.
Ms Schuster's evidence was that the activity of boxing involved a range of muscles in the arms and shoulders, including the trapezius muscles. She said that if someone had just begun an exercise programme that involved boxing she would 'absolutely' expect to see a reaction leading to an increase in overactivity of the trapezius muscles.
At this first session Ms Schuster gave the plaintiff some advice about things that he could do to help improve 'his condition'. She gave him a home exercise programme describing exercises the plaintiff could do to decrease,
… the overactivity of the upper trapezius muscles. He also had already been attending gym prior to me seeing him but since the accident had not been attending the gym. So I was encouraging getting him back to his previous exercise and using the foam roller and a massage ball which we hadn't previously to help reduce the over activity of the upper trapezius.
In truth, the plaintiff had not stopped attending the gym following the accident. Some of the plaintiff's recreational activities are revealed by his bank statements. The chronology of a number of entries in those bank statements became an exhibit at trial. Whatever else the plaintiff was doing by way of exercise, his bank statements record that on 14 December 2017 he attended a gym called 'Gloveworkx'. In cross‑examination the plaintiff said Gloveworkx was 'a boxing gym' and that 14 December 2018 was '… the first time I went there, so I was learning what boxing is all about … that beginning was probably shadow stuff to learn what – about your footwork and your armwork is for boxing'. The plaintiff said that he did not recall if he had been hitting bags in that session. He thought that, 'at the beginning it was more shadow'.
The plaintiff returned to Gloveworkx on 11 January 2018, 18 January 2018, 1 February 2018, 8 February 2018, 15 February 2018 and 1 March 2018. He has been a fairly frequent attendee of that gym, to at least 20 June 2019.
The records show that the plaintiff attended at Gloveworkx twice in the month prior to seeing Dr Lo on 17 January, and the day after seeing Dr Lo. He attended at Gloveworkx the day before he saw Ms Schuster. In the period between seeing Dr Lo and seeing Ms Schuster, the plaintiff also attended at another gym called 'Box and Bike' on 3 February 2018 and 10 February 2018. On 18 January and 20 January 2018 the plaintiff was at the Whaleback Golf Course. As he said 'yeah, that would've been golf range'.
There is a fairly obvious reason as to why the plaintiff may have presented to Ms Schuster with overdeveloped trapezius muscles, though it is not one that she was told about.
Whenever the plaintiff was confronted with the seeming incongruity between his vigorous physical exercise and his complaints about neck pain, his invariable response was that he was 'managing the pain', or had 'learned to manage the pain', or had 'learned to live with it'. Sometimes he was 'managing the pain with massage', and sometimes with 'self-medication'. As he frequently said however he was 'managing it'.
By any objective standard, if the plaintiff was indeed experiencing neck pain he was managing it extremely well. The accounting records show his frequent attendance at boxing gyms. In late December 2017 the plaintiff endured a flight to Vietnam for a two week vacation there, returning shortly before his attendance on Dr Lo. The available accounting records show that since seeing Dr Lo the plaintiff has flown to Bali, Indonesia four times for holidays, including two trips this year. While no details were elicited at trial, it was apparent that the plaintiff travels overseas reasonably frequently for work.
The plaintiff has continued with gym and Boxercise. He was playing soccer at a senior level, at least until he suffered two serious injuries this year.
In his evidence-in-chief the plaintiff was asked about the frequency and levels of pain he was experiencing 'in recent times'. He told his counsel that currently, 'maybe now I'd feel pain maybe twice - twice a week, discomfort twice a week … Once every couple of days…'.
In cross-examination, the plaintiff's evidence was rather different. He was confronted with Dr Lo's notes from a review in June 2019. Those notes suggested that the plaintiff resorted to Panadol or Nurofen 'once a month'. The plaintiff accepted that that was what he had told Dr Lo. He said, 'In recent times I've tapped down. Yes. That's correct … In recent times - in June - yeah. Once - once - whenever the pain - whenever I feel pain I will use it'. He was asked 'how often is that?' He responded, 'It varies. It's not - it's not constant. Sometimes it's once a month. Sometimes it's once a week'.
Asked when the neck had last bothered him, the plaintiff said, 'Off the top of my head, maybe two or three weeks ago'.

Massage and physiotherapy

The plaintiff's evidence was that after enduring continuing problems with neck and lower back pain following the accident, having tried over‑the‑counter painkillers for relief, 'I thought maybe if it's just muscle pain – massages, so I went for massages to – to help with that. And then after sort of a while when I saw – OK this is still not going away, that's when I sort of thought about seeing a doctor'.
The plaintiff nominated one particular appointment on 20 December 2017 with Bigfoot Massage, as the first massage he received specifically for his neck complaint.
I have referred to the evidence that the plaintiff was physically active, taking part in sports and going to the gym. With respect to his frequent attendances for massages he explained '… that's how I dealt with muscle pains'.
Since at least 2015 the plaintiff has frequently attended numerous massage providers, including Bigfoot Massage, Le Beau Beauty Salon, Phoenix, Therapeutic Body Centre, Yokine Massage Centre, Lotus Touch Remedial Massage Clinic and others, 'for relief of muscle pain'. This was invariably, as the plaintiff described, 'full body remedial massage – except for the Bigfoot ones over the period of my injury where I went and spoke to masseuses there about focusing on my neck and shoulders'.
Evidence at trial showed that the plaintiff attended at the Therapeutic Body Centre on 11 November 2017 and 25 November 2017 following the accident, and then at Bigfoot Massage on 20 December 2017. Given the plaintiff's evidence that he typically attended for massage for the relief of muscle pain it seems odd and improbable that he would not ask for assistance with respect to that particular issue prior to 20 December 2017 if his neck pain was 'five or six out of ten' on the scale of pain intensity.
It also seems odd and improbable if the plaintiff had received massage specifically for his neck, that neither Dr Lo nor Ms Schuster record anything to the effect that the plaintiff has been dealing with his neck pain by directed massage.
I have already referred to the active role that the plaintiff's solicitors took in the management of the plaintiff's claim since he made an appointment to see Dr Lo. Until 9 August 2019 the particulars of damage claimed by the plaintiff extended to such things as travel expenses ($250), medication ($100) and attendances on Dr Lo ($158). No claim was then made for the cost of the massages the plaintiff says he specifically sought and paid for to relieve the symptoms in this neck. On 9 August 2019 a claim of $960 was added to the Particulars of Damage, seeking reimbursement for '11 massages from 20 December 2017 until 23 August 2018'.
That amendment to the Particulars of Damage prompted an amendment to the defence, alleging that the treatment claimed '… has not been a consequence of accident caused symptomology, but rather as a means of substantiating [the plaintiff's] claim for damages'.
Some sense of the value of the plaintiff's evidence in respect of the claimed neck massages came when the plaintiff was being directed to some of the many instances where he paid for massages, in this case a $75 charge entry in his banking records for 16 February 2018, showing the debit to Bigfoot Massage. When his counsel asked the plaintiff '…what you attended on Bigfoot for that day?' He answered, 'Yes, I would have attended for my neck probably. I would probably have told them that I was - they would have had that - that I was there for my neck, so that's what that would have been for'.
No representative of Bigfoot Massage was called to give evidence about the purpose of massage on any claimed occasion.
The last 'neck massage' claimed, according to particulars of damage filed shortly before trial, was on 23 August 2018. The second time that the plaintiff saw his general practitioner with respect to complaints about his neck was on 20 June 2019. On that occasion Dr Lo records what she was told by the plaintiff, in this way:
Been going through physio rehab exercise and massage with improvement.
Now physio every few months last one – two months ago
and massage 1/month ad hoc
Still uncomfortable base of neck upper back.
Contrary to what is recorded here about 'massage 1/month ad hoc', the plaintiff's evidence before me, consistently with the amended Particulars of Damage, was that the last time he had had massage treatment for his neck was in August 2018, some 10 months prior to this review with Dr Lo.
With respect to the claim that he was having 'physio every few months last one – two months ago', again, the truth is rather different.
As Dr Lo's notes make clear the purpose of the consultation on 12 June 2019 was a review in respect of the motor vehicle accident.
The only physiotherapy appointments that the plaintiff had attended with respect to his neck complaints were in March and April 2018. The only physiotherapy assistance that the plaintiff received was advice about a home exercise programme. He never sought or received hands on treatment by a physiotherapist for his neck.
When confronted with the reference to 'physio every few months. Last one or two months ago'. The plaintiff said, 'yeah. I think I just mentioned that because I was seeing a physio for my Achilles'.
In evidence-in-chief the plaintiff said that he had injured his Achilles tendon in June 2019.
The plaintiff struggled to explain why, in a medical review in June 2019 for his complaints arising from the accident, he had told Dr Lo that he had been seeing a physio 'every few months …'. In cross‑examination he was asked these questions and gave these answers:
So that reference to physio one to two months – last – was one or two months ago was for your Achilles tendon. Is that right? - - - Yes. I think I've just mentioned, and they've asked. We were discussing physio.
When did you tear your Achilles? - - - I'm crossing my wires. Actually I'm crossing my wires. Sorry. Sorry. Getting a bit flustered by all the questions. In – I saw – I went to South Care Medical in February this year, because I had started playing soccer again, and I had done my hamstring. I had a hamstring strain. And that's why I'd gone to see them. And when I said to Dr Lo that I was seeing a physiotherapist, it was a reference to that.
To a hamstring? - - - To a hamstring. And then that would have been in February – February, March of this year. And then I would've seen her in June. And my Achilles was in the end of March of this year.
The plaintiff's attempts to explain this did not enable me to understand why, in a review specifically for his motor vehicle accident complaint, he told Dr Lo what he did.

The medical evidence

I have referred to the plaintiff's first medical appointment with Dr Lo in respect of his complaints said to arise from the accident. That appointment was on 17 January 2018. That was not however the plaintiff's first medical appointment following the accident.
On Wednesday 8 November 2017 the plaintiff attended the Canning Bridge Medical Centre, but on this occasion he saw Dr Priscilla Tan. It appears that Dr Tan was his regular GP.
On 8 November, as Dr Tan's notes record, the plaintiff saw his GP complaining of:
Blood nose lately
Sometimes after overeating, after a shower
Has hay fever – used nasal spray – OTC – stopped two weeks ago because he was better
Now hay fever under control
Not on antihistamines
Examination:
General:
BP (sitting): 112/57
The plaintiff gave evidence that just a couple of days after the accident he had begun feeling stiffness in the neck and a bit of throbbing of his neck as well as pain in his lower back that was less painful than the discomfort in his neck. It was in the initial period that he ranked his pain 'a 5 or 6 out of 10'. Despite that, he made no reference at all, either to the accident or any symptoms supposedly arising from it, when he saw Dr Tan.
The plaintiff's next medical appointment was with Dr Lo on 17 January 2018. At this appointment Dr Lo recorded the plaintiff's complaints of a sore lower and upper back, intermittent pain treated with Nurofen and Panadol as required, and her observation that the plaintiff's range of movement was 'still good'.

The plaintiff first saw Ms Schuster the physiotherapist on 2 March 2018. The plaintiff's complaints and Ms Schuster's observations from this assessment are set above. It was at this appointment where Ms Schuster recommended a home exercise programme. Ms Schuster concluded that a supervised exercise programme 'wasn't appropriate' because of the amount of travel that the plaintiff had to do for work. She said that, 'from memory he was sometimes away for two or three weeks at a time'.
Ms Schuster's next appointment with the plaintiff was on 10 April 2018. She recorded her assessment of the plaintiff at that time in these terms:
Going well since being away for work. Minimal neck pain/discomfort. Using spikey ball with good effect. Hasn't been consistent with HEP (home exercise program) due to travelling.
Ms Schuster also recorded that the plaintiff presented with a full range of motion of his cervical and thoracic spine but a 'mild increase in the perceived tightness of his upper trapezius levator scapulae musculature'. Ms Schuster recorded her recommendation for a '… review in three weeks – to book in before if further treatment needed'. Ms Schuster never dealt with the plaintiff again.
On 8 August 2018 however, at the request of his lawyers, the plaintiff saw another general practitioner, Dr Andrew Fairhurst, for a medico‑legal assessment. Dr Fairhurst gave evidence at trial.
The plaintiff saw Dr Fairhurst again on 17 June 2019. Copies of reports prepared by Dr Fairhurst after both attendances became evidence at trial.
In his evidence-in-chief, the plaintiff said that he had truthfully reported his symptoms to Dr Fairhurst. He said he had read both of Dr Fairhurst's reports and that he 'agreed with their factual content'.
Dr Fairhurst took a history from the plaintiff on 8 August 2018. The history includes the following, commencing with the accident on 30 October 2017:
He recalled that over subsequent days, he became aware of neck stiffness and discomfort, radiating to both shoulders and onset of backache, not considered as severe as the neck pain.
He claimed that his neck and back pain failed to settle spontaneously and he self‑funded a few sessions of physiotherapy and massage that he stated were of transient benefit.
He claimed the spine remained uncomfortable causing sleep disturbance. He had difficulty sitting at his work computer for prolonged periods and required regular Nurofen and Panadol.
In January 2018, he consulted Dr Winnie Wing Ying Lo at the Canning Bridge Seven Day Medical Centre for an assessment of his neck and lower back …
I observe that prior to seeing Dr Lo on 17 January 2018 the plaintiff had not had physiotherapy. Dr Lo's notes do not record anything with respect to massage or sleep disturbance.
Ms Schuster specifically asked the plaintiff about sleep disturbance in her 'Neck Disability Index' form. The plaintiff was given the option of ticking one of six boxes ranging from 'I have no trouble sleeping' to 'my sleep is completely disturbed'. He ticked the box 'I have no trouble sleeping'.
Dr Fairhurst recorded the plaintiff's complaints of ongoing symptoms in his cervical spine consisting of intermittent neck discomfort, particularly after prolonged computer use. The plaintiff also told him that at times the neck could be painful without any obvious reason for that and that he had noticed intermittent stiffness.
With respect to any restrictions because of his neck symptoms the plaintiff told Dr Fairhurst that he had to take more frequent breaks from his computer at work and that 'the neck increases in discomfort with rotation when driving. His capacity to undertake certain weight exercises in the gym is now restricted and he avoids the heavier shoulder exercises or pull‑downs. Walking, standing or sitting are reportedly unaffected'.
In evidence-in-chief the plaintiff said that when he worked sitting down at a computer 'all day', he would 'feel the discomfort in my neck'. With respect to the 'frequency' of breaks that he took to deal with this neck discomfort, the plaintiff said that when working all day on the computer he would take breaks 'probably a couple of times a day', for '5 to 10 minutes'.
In cross-examination Dr Fairhurst accepted that it was common to experience neck and back pain after prolonged sitting to use a computer.
When the plaintiff completed Ms Schuster's 'Neck Disability Index' he was asked to tick one of six boxes ranging from 'I can drive my car without any neck pain' to 'I can't drive my car at all'. The plaintiff ticked the box 'I can drive my car without any neck pain'.
In his evidence-in-chief, with Ms Shuster's records before him, the plaintiff gave evidence that he had not experienced problems with sleeping or driving. It is not possible to reconcile that evidence with his evidence that he 'agreed with the factual content' of Dr Fairhurst's reports.
Dr Fairhurst did not have regard to any medical imaging, because none has been done. In the course of a physical examination Dr Fairhurst observed the plaintiff's muscular build, and the absence of any abnormal posture or muscle spasm. He recorded the plaintiff's complaint of 'tenderness … to palpation over the para‑cervical musculature of the lower cervical spine'.
Unlike the observations made by Dr Lo and Ms Schuster, Dr Fairhurst recorded a reduced movement in flexion of the cervical spine 'limited to 75% of the normal range, and in rotation to the right'. He observed that both extension and lateral flexion were considered full.
As a result of his examination of the plaintiff, and the history that he took, Dr Fairhurst made a diagnosis of 'mechanical neck pain without radiculopathy – ligamentous injury (Whiplash Associated Disorder)'.
Dr Fairhurst recorded the plaintiff's complaints on 17 June 2019 as 'periodic neck discomfort and stiffness after prolonged computer use or with certain head movements'. This, the plaintiff said, required him to take more frequent breaks from the computer at work and occasionally caused him to experience neck discomfort when driving. Dr Fairhurst also recorded continuing restrictions with certain gym exercises involving the upper limbs and torso. The claim of sleep disturbance was also repeated.
Dr Fairhurst's physical examination on 17 June 2019 did not reveal any apparent abnormality. In particular, while tenderness was reported to palpation over the para‑cervical musculature of the lower cervical spine, movement was within normal limits.
In his second report Dr Fairhurst maintained his diagnosis of Whiplash Associated Disorder. In answer to some of the questions posed by the plaintiff's legal advisers Dr Fairhurst advised:
Your client's ongoing medical treatment will remain self‑directed in nature. He should continue gym attendances at an annual cost in the vicinity of $2,000. He will continue to require periodic analgesia at a cost of $100 per annum … your client is at mildly increased risk of degenerative changes in the cervical spine as a consequence of the motor vehicle accident, although the time scales at this progression cannot be predicted … I anticipate that his future treatment will remain conservative in nature and I do not consider that surgical intervention will be required in the foreseeable future.
In his evidence-in-chief Dr Fairhurst allowed that any risk of 'future degenerative changes' was 'not a major concern'. In my view, the idea that anyone would even think to raise a question of 'surgical intervention' in the plaintiff's circumstances is incomprehensible.
No basis was offered either for the requirement for a gym programme as opposed to home exercise (given the plaintiff's work related travel requirements), nor the $2,000 cost. No explanation was offered for the claimed cost of analgesics.
Dr Fairhurst concluded that the plaintiff had,
… made a partial recovery with no further recovery since the previous assessment. It remains my consideration that he has sustained a permanent disability as a consequence of the motor vehicle accident; a 5% loss of full and efficient use of the neck as a consequence of his injury.
With respect, this last conclusion seems overstated. It was only at the first assessment that Dr Fairhurst said he observed some reduction in flexion of the cervical spine and rotation to the right. No such limitation was observed by Dr Lo in 2018 or 2019, or by Ms Schuster in 2018, or by Dr Fairhurst in June 2019. Despite that, Dr Fairhurst gave evidence that the 5% assessment was based on the limitation of movement he claimed to have observed in August 2018, at the first examination.
From his evidence before me it is apparent that, in the absence of any objective evidence of pathology, Dr Fairhurst's conclusions rely on an acceptance of the plaintiff's evidence that he had no neck complaints prior to the accident, began to develop those symptoms as described by the plaintiff about two days after the accident, and has continued to experience the kinds of problems reported to Dr Fairhurst since. The assessment of a 5% disability in the neck relies on something Dr Fairhurst claimed he saw once, that was never observed by anyone else and that has not been seen since.
In his first report Dr Fairhurst recorded a statement made to him by the plaintiff that the plaintiff's vehicle had suffered $4,000 worth of damage. As subsequent events have shown that was not correct. Dr Fairhurst however accepted, at least initially, that the dollar value of damage 'can help to assess the speed of the impact. Clearly if – if the vehicle is written off you – you would expect a- a – not necessarily But it may be a –a slightly more vigorous impact than $4,000'.
On the other hand, Dr Fairhurst asserted that the speed of impact was not really relevant to his conclusions as to the development of Whiplash Associated Disorder. That, he said, was because he had seen some studies that suggested that the G-forces involved in rear end collisions,
at 5 miles an hour … and range between 6 Gs to 12 Gs. To give you an example, a roller coaster ride can get up to 3 Gs, on a really scary ride, 6 G. So – and there are injuries with roller coaster rides at that sort of level.
When challenged that, none-the-less, the force of the impact and the weight of the vehicle involved in the collision were of significance in the development of such injuries, Dr Fairhurst answered 'Well I think, if you don't mind me saying, that's a bit of a simplistic way of looking at it because it's multifactorial, depending …'. The other factors Dr Fairhurst referred to were age, sex and whether the person injured was expecting the collision, and 'there are probably more but we don't know what they are'.
Dr Fairhurst's evidence was not helpful in fostering an understanding as to how a low-speed rear-end accident could produce an ongoing permanent neck injury without any objective signs of pathology. Returning to his roller coaster analogy, while the forces generated by a roller coaster ride may have the capacity to cause a whiplash like injury, not everyone gets off the roller coaster with whiplash.
In fairness, Dr Fairhurst was being asked to give evidence that was beyond the range of his expertise. He is a general practitioner who sees one or two whiplash type cases per months. It appears that he has looked at some literature with respect to the manner in which injuries of this kind may occur, although that formed no part of any report that he prepared.
More troubling are the discrepancies between the symptoms and complaints that Dr Fairhurst recorded as opposed to those that were not reported to Dr Lo and Ms Schuster. Nor it seems was Dr Fairhurst aware that one of the plaintiff's frequent gym activities was boxercise.
I accept the unchallenged evidence of Dr Lo and Ms Schuster.
I do not accept Dr Fairhurst's evidence. There are troubling inconsistencies between the plaintiff's evidence in court, and the history taken by Dr Fairhurst, and relied on by him in forming his opinions. Quite apart from that, Dr Fairhurst struck me as a witness who was willing to venture an opinion based on little factual support, even when it was contrary to other information that he had (such as Dr Lo's medical records and the report from Ms Schuster) and what he was able to see with his own eyes about the absence of limitation of movement in June 2019. He seemed eager to volunteer second-hand information with respect to subject matter that he had no real expertise in himself.

Causation

I am asked to conclude, consistently with the opinion of Dr Fairhurst, that the motor vehicle accident on 30 October 2017 caused the plaintiff to suffer 'mechanical neck pain without radiculopathy - ligamentous injury (Whiplash Associated Disorder)' that has produced the symptoms that the plaintiff has complained of and that has left the plaintiff with a permanent disability being 'a 5% loss of full and efficient use of the neck as a consequence' and a continuing need for treatment in the form of 'gym attendances at an annual cost in the vicinity of $2,000' and 'periodic analgesia at a cost of $100 per annum'.
The plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation; Civil Liability Act 2002 (WA) s 5D.
In the course of the trial whenever I raised, or tried to raise, with plaintiff's counsel questions about the conclusions I was able to draw with respect to the precise nature of the accident (for example the speed of impact and consequential apparent force of the collision, what specifically was said to have happened to the plaintiff as a consequence of any such force, i.e. how his upper body had reacted or moved), I was unsuccessful.
When I suggested that evidence of this kind would be helpful in assessing the probability that the accident had caused the claimed injury, at least based on what I understood was general knowledge about the relationship between forces of acceleration and deceleration in producing what are commonly called 'whiplash' type injuries, I was cautioned to avoid taking a 'scientific' approach to the assessment of causation. Rather, I was reminded, I should adopt a 'common sense approach to proof of causation'. At the same time I was reminded that Dr Fairhurst had said that he had 'seen articles' that asserted that even low speed collisions can produce whiplash type injuries.
This approach to proof of causation would seem to be the forensic equivalent of eating one's cake and having it too. I am expected to accept a vague second-hand version of selected science on this topic. On the other hand, I am not to question how the laws of physics and the biomechanics of human anatomy can combine to leave a healthy, fit, 34 year old man with what is said to be a permanent disability and a lifetime of intermittent pain and discomfort, from a relatively insignificant bump to the back of a modern motor vehicle.
I readily accept, based on what might be regarded as information available to reasonably well informed people, that even a minor rear end collision may produce a ligamentous injury of the kind described as 'whiplash'. What I do not know based on general knowledge is how, and in what circumstances, a minor rear end collision will in fact produce such an injury, what exactly the mechanism of the injury is, what the pathology is, and why in the absence of objective evidence of pathology this injury is supposed to be permanent, why it has not healed and will not heal with time.
In order to fill in those kinds of gaps in common knowledge and common sense, I would have expected that some proof would be offered. That was not the case here. Dr Fairhurst's evidence does not amount to such proof, in part because he has little reliable information available to him from which to base a conclusion about the plaintiff's particular circumstances.
Essentially, I am asked to find that the plaintiff was both an honest and reliable witness, and from that to reason that because his complaints arose after 30 October 2017 they were therefore caused by the accident. Beyond the fact that there was some kind of minor rear end accident on 30 October 2017 following which, sometime later, the plaintiff made complaints of pain in the general area at the base of his neck, there is little proof of anything in this case.
The observations of Ms Schuster of increased muscle bulk in the plaintiff's trapezius muscles do not in my view provide any objective proof of accident related pathology. Within the limits of her expertise and the information that had been provided to her, Ms Schuster attributed that to '… doing a lot of plane travel and … sitting in prolonged positions…'. She readily accepted that the same symptoms could be produced by boxing like exercise.
While in strictly logical terms that form of reasoning I have described ('ergo propter hoc') is a fallacy, for the purposes of establishing legal causation there may well be occasions when close coincidence in timing between two events will provide a basis for proof. There are some cases where causation may be reasonably obvious - for example a skull fracture following a forceful punch to the head. But often that will not be the case without evidence of surrounding circumstances, before and after the event, tending to eliminate other causes or possible causes of a given result, and thereby elevating the nominated cause to the probable cause. In this case, that is not an easy task, quite apart from the fact that I am not able to find that the plaintiff is a credible, reliable witness.
Notwithstanding the plaintiff's counsel's dismissals of my interest in the forces involved in the collision, the amount of force involved in the collision is relevant. Although, as I have said, I accept as a general proposition that even a minor rear end collision may in some circumstances result in a 'whiplash' type injury, I do not accept that every such accident will result in that kind of injury. As a matter of common sense, the greater the amount of force applied to the rear of the plaintiff's vehicle, the easier it would be to accept the claim of a resulting injury, particularly if that force resulted in the kind of motion to the cervical spine that tends to cause such injuries.
If the matter is to be judged by common sense, it would be difficult to accept that a low impact collision that left no or little damage to either vehicle, and produced no objective pathology, could result in an ongoing injury of the kind claimed here, to a fit, 34 year old man. That is particularly the case in the absence of any bio-mechanical explanation for such injuries, supported by credible evidence of the actual bodily reaction to the force of impact, said to result in the claimed injury.
I have referred to the plaintiff's evidence-in-chief about hearing a loud bang and being jolted forward. His evidence that he then 'felt the car sort of move forward' hardly indicates a forceful impact, notwithstanding the fact that he said he then had to 'slam on his brakes' to stop from going into the car in front of him.
There was no evidence as to the movement of the plaintiff's head, either relative to the position of any headrest, or at all.
In his evidence-in-chief the plaintiff said that after exchanging details with the other drive he made sure that his car was 'ok to drive'. It is agreed between the parties, that at some time after the accident, the plaintiff took his car to panel beaters and had some work done there. That consisted of some repair to the rear bumper at a total cost of just under $1,300 and $300 for the cost of a rear sensor on the bumper.
While he gave evidence that he inspected his vehicle after the accident, no evidence was adduced in the plaintiff's evidence-in-chief of any observation of actual damage to either vehicle involved.
The defendant apparently obtained photographs of the plaintiff's black Mercedes which it was said were taken immediately before the repair was made. The defendant, however, was unable to prove when or by whom the photographs were taken and the plaintiff was unwilling to admit any fact with respect to the photos. From what I have said it would be apparent that the plaintiff offered no photographic evidence of damage himself.

I infer that, although it was within his ability to prove the exact nature of the damage to the plaintiff's vehicle and offer some independent proof of the force involved, evidence was not offered because it would have not assisted the plaintiff's claim.
Despite his earlier evidence that, immediately after the accident, the plaintiff inspected his vehicle to make sure that it was safe to drive, the plaintiff gave somewhat different evidence in cross-examination. Initially he accepted that the damage to his car was 'some scratches on your bumper? The black paint was scraped off? - - - it was damaged on the - yes on that - yes, left'.
Defendant's counsel then referred to the photographs that had been obtained and asked whether the plaintiff had seen them. To this the plaintiff replied 'Yes, I have. The whole bumper was dislodged, and the sensors were damaged, and the paint was scratched'. I observe that this was the first and only time in the course of the trial that anyone mentioned that the plaintiff's 'whole bumper was dislodged'. If that was the case it is difficult to understand why the plaintiff would say that his vehicle appeared safe to drive. If that was indeed what any photograph showed, it is difficult to understand why the photograph would not be offered in proof.
There is no evidence about the condition of the plaintiff's vehicle before the accident. There is no evidence as to the functioning of the rear sensor or sensors before or after the collision.
There is also of course the matter of the accident report filed by the plaintiff that I have referred to, and the claim that the speed of the impact was 30 km per hour. As a matter of common sense, the idea that there could be a collision of this kind at 30 km per hour (18 miles per hour) that left the defendant's vehicle unharmed, broke nothing off of either vehicle, and left both vehicles safe to drive, is highly improbable to say the least.
The defendant's evidence was consistent overall. Her evidence as to the lack of damage to her car and lack of any apparent damage beyond scratched paint to the plaintiff's rear bumper was not challenged. I accept her evidence as to the circumstances of the accident.
I do not accept the plaintiff's evidence that his bumper was 'hanging off' his car after the collision. I find that there was no damage to the defendant's vehicle and no obvious damage to the plaintiff's car, apart from a scratch to the paint on the bumper.
When the plaintiff went to see Dr Lo on 17 January 2018 he may well have been experiencing some soreness in his neck and he may well have persuaded himself that any neck pain he was then experiencing arose because of the accident.
His claimed recollection of symptoms arising in the days immediately after the accident may be genuine, but it is not plausible. His delay in seeking medical treatment for the neck complaint, his failure to raise any such complaint with Dr Tan on 8 November 2017, and his failure to seek massage treatment earlier than he claimed in evidence are all inconsistent with the existence of a neck problem arising in the time and in the manner now claimed.
Ms Schuster examined the plaintiff in early March 2018. Her conclusion about the symptoms that the plaintiff was then experiencing was that it was related not directly to the cervical or thoracic spine, but to the over use of trapezius muscles and the under development of other supporting muscles. Ms Schuster was of the view that that kind of overdevelopment might well come about from the exercise of boxing.
Shortly before the plaintiff went to see Dr Lo for the first time he had changed his exercise regime to include a form of boxing. The inference that that was the cause of any symptoms the plaintiff was actually experiencing in mid-January 2018 is at least as probable as any inference that some such problem was caused by the accident.
I am not satisfied that the accident caused any physical injury claimed in this action.

Findings and conclusions

There are in any event a number of other matters that lead me to be unwilling to accept the plaintiff's evidence about matters in issue here. A number would be apparent from the review of the evidence I have already set out. I will however list a number of matters that lead me to conclude that the plaintiff's evidence about these matters cannot be relied upon.
The plaintiff made no complaint of any neck or back problem and made no mention of the accident when he saw Dr Tan on 8 November. If the plaintiff had been suffering the kinds of symptoms that he described in his evidence, it is improbable that he would not have then mentioned them to Dr Tan.
It seems improbable that if the plaintiff had been suffering symptoms of the kind and severity claimed in the few months following the accident that he would have chosen that time to take up boxing or boxercise and play golf.
The plaintiff gave evidence that he told Dr Lo and Ms Schuster that he had been receiving massages for his neck complaints. The question as to what the plaintiff had been doing to deal with his neck complaints was plainly a matter that both Dr Lo and Ms Schuster were interested to learn about. While both recorded the plaintiff's reference to using Nurofen and Panadol, neither records any statement about massage. It appears that neither were aware that the plaintiff claimed to be receiving massage.
It does not appear that the plaintiff told Dr Lo or Ms Schuster or even Dr Fairhurst about the kind and extent of the exercise he had been taking part in. It appears that Ms Schuster was positively misled to believe that the plaintiff had largely stopped exercising after the motor vehicle accident.
Although Dr Lo told the plaintiff to return for a review after one month if his problem had not resolved, he never returned to see her until 12 June 2019, seemingly in anticipation of his trial. It is improbable that if he had had any significant ongoing problem that he would not have returned to see his GP in the months following the initial consultation.
Similarly, Ms Schuster had advised the plaintiff of the prudence of having at least a telephone review in the course of her session with the plaintiff in April 2018. Despite that, she never heard from the plaintiff again. Had the plaintiff in fact been experiencing the kinds of problems he described in his evidence it is improbable that he would have not sought physiotherapy assistance.
I am troubled by the difference between the history taken by Dr Fairhurst, and the notes made by Dr Lo and the detailed notes and observations made by Ms Schuster. In particular I do not accept that the plaintiff ever had problems with sleeping or driving a car, that were caused by neck symptoms as recorded by Dr Fairhurst. The history that Dr Fairhurst took suggested that it was those kinds of problems that led the plaintiff to go and see Dr Lo. The plaintiff's own evidence contradicted purportedly factual statements recorded by Dr Fairhurst.
The plaintiff gave evidence that he would frequently resort to exercise therapy and had done so for some years prior to the accident for relief from muscle stiffness. It is highly improbable that if he had had such a problem in his neck following the accident that he would have waited almost two months before seeking relief from massage. And, the history of the way the claims for reimbursement for massage therapy arose rather suggests that these claims were an afterthought. No evidence was offered from anyone connected with Bigfoot. Although the plaintiff made application for the late service of a witness summons, that application was abandoned. I infer that evidence from a representative of Bigfoot would not have assisted the plaintiff's case.
I accept that the plaintiff frequently attended Bigfoot massage, as he did many other massage providers. I do not accept that the plaintiff attended 11 sessions at Bigfoot Massage, either solely or substantially to deal with a problem in his neck.
The accident report filed on behalf of the plaintiff claimed that his vehicle had been struck by another vehicle travelling at 30 km per hour. As a matter of common sense, having regard to the lack of any significant damage to either vehicle, that is ludicrous. The willingness of the plaintiff to allow such a report to be submitted and remain uncorrected does not engender confidence in his evidence.
I have previously referred to the plaintiff's statements to Dr Lo in June 2019 about the frequency with which he had been receiving physiotherapy. His attempt to explain why he incorrectly told Dr Lo the things that he did was implausible.
In the course of these reasons I have set out a number of passages of the plaintiff's evidence where the plaintiff seemed unable to give a coherent answer about fairly straight forward matters without prefacing them with phrases like 'sort of' and 'kind of' and 'probably'. The general run of those answers stands in contrast to his frequent resort to claims of 'managing' his injury, as a means of explaining contemporaneous records that suggested that he had little or no problem arising from his neck.
I have also referred to the answer to the last question asked in re‑examination as to how the plaintiff felt '… about the ongoing problem that you have in your neck?' '… I've learned to deal with it. Life's got to go on, so I just manage it as best I can and try to continue my life, yeah …'.
Simply reading that answer, without knowing more, one might think that the person answering had at least been rendered paraplegic by some catastrophe and was gamely getting on with things. The plaintiff's reality is quite different. That answer as well as his frequent references to 'learning to deal with it' or 'managing it' had an air of practise.
I am not prepared to accept the plaintiff's evidence with respect to either the force involved in the accident or its consequences, nor the claimed problems in neck and back in the weeks and months following the accident.
It follows that I find for the defendant and the plaintiff's action is dismissed.
For the sake of completeness, I will say that even if I had accepted that the plaintiff had received some kind of injury to his neck because of the accident, I would have relied on the evidence of Dr Lo and Ms Schuster as the best evidence of the true nature and extent of any injury caused. I conclude that the plaintiff did not return to see Dr Lo in 2018 as she suggested, or make any further appointment with Ms Schuster because, in truth, the plaintiff was not experiencing any physical problem of any consequence. In that event, in my view, any award of general damages would not have begun to approach the threshold of 5% of the award for a worst case.
Taking the most benign view possible of the plaintiff's complaints, based on his inconsistent evidence, I would award no more than $8,500 as general damages here, about 2% of the maximum that may be awarded for pain, suffering and loss of amenities of life. That amount falls short of the threshold provided by s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 (WA). No award of damages may be made therefore: s 3B Motor Vehicle (Third Party Insurance) Act. Had I been satisfied that the accident caused at least some transient injury to the muscles and ligaments of the plaintiff's cervical spine, I would have awarded $50 for special damages for analgesics, plus the costs of one medical appointment and one physiotherapy appointment.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JH
Associate to Judge O'Neal
15 NOVEMBER 2019