Nash v Elphin Nominees Pty Ltd
[2009] VCC 533
•19 March 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT WARRNAMBOOL
CIVIL DIVISION
Case No. CI-07-05252
| BRADLEY JOHN NASH | Plaintiff |
| v | |
| ELPHIN NOMINEES PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE CAMPBELL |
| WHERE HELD: | Warrnambool |
| DATE OF HEARING: | 2nd , 3rd, 4th and 5th March 2009 |
| DATE OF JUDGMENT: | 19 March 2009 |
| CASE MAY BE CITED AS: | Nash v Elphin Nominees Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0533 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – s.134AB Accident Compensation Act 1985 – serious injury application – low-back injury – plaintiff’s credit seriously impeached – question of costs.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Brookes SC with | Maddens Lawyers |
| Mr N Bird | ||
| For the Defendant | Mr P Scanlon QC with | Lander & Rogers |
| Mr P Jens | ||
| HIS HONOUR: |
1 This is an application for leave to bring a proceeding for the recovery of damages in respect of injury pursuant to s.134AB of the Accident Compensation Act 1985 (“the Act”). It is brought by Originating Motion dated the 17th December 2007.
2 The injury relied upon in bringing this application is a “permanent serious impairment or loss of a body function” – in this case the plaintiff’s lower back, under paragraph (a) of the definition of “serious injury” in s.134AB(37) of the Act.
3 By a document entitled “Particulars of Injury” dated the 5th September 2008, the injury more particularly is described as follows:
• Injury to the back • Injury to the lumbosacral spine • Disc protrusion at the L4-5 level, together with production of and or aggravation and or acceleration of degenerative changes at the L4-5 and L5-S1 levels • Pain, stiffness and limitation of movement in the back and left leg, together with impaired sensation in the left leg. 4 The assessment of “serious injury” in this context is to be done in accordance with the definition of “serious” as defined in sub-section (38) of s.134AB of the Act.
5 The application is to be determined on the evidence before the Court by applying that statutory definition to that evidence. In interpreting that definition, I have directed myself in accordance with the deliberations of the Court of Appeal in a group of cases reported at (2005) 14 VR 622 and commonly referred to as the “Barwon Spinners Cases”. I shall thus refer to them if the need arises.
6 I also bear in mind other cases in the area, without being extensive, including Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Mobilio v Balliotis (1998) 3 VR 833; Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46; Church v Echuca Regional Health [2008] VSCA 153; and Jayatilake v Toyota Motor Corp Australia Limited [2008] VSCA 167. I am also familiar with the cases referred to by counsel in their respective addresses at the conclusion of the evidence before me.
7 In support of the application, the plaintiff swore an affidavit on the 19th September 2007.
8 He also relied on medical reports and other documents listed in the plaintiff’s index to the Court Book, together with a number of medical reports to be found in the defendant’s Court Book. His counsel also tendered and relied on a video film of covert surveillance undertaken by the defendant on the 4th October 2006.
9 The defendant relied upon medical reports contained in its Court Book, together with a number of further films of covert surveillance taken between December 2007 and December 2008.
10 At the commencement of the hearing, Mr Brookes announced that the plaintiff’s claim was now confined to an application for leave to institute proceedings for pain and suffering damages only, the claim for pecuniary loss damages being abandoned. This course was taken apparently as a result of the plaintiff and his counsel viewing the video of the 4th October 2006 which, inter alia, shows the plaintiff mowing lawn belonging to his neighbour. Of the video surveillance, more anon.
11 Notice to attend for cross-examination was given to the plaintiff and he was cross-examined before me.
12 The plaintiff is now aged nearly thirty-three years, having been born on the 3rd May 1976. He left school after completing Year 9 level, although other material suggests that his literary skills are not great.
13 He is married and between he and his wife there are five children ranging, it seems, from about eleven years down to a six-month old baby.
14 The plaintiff’s employment up until the time of the accident the subject of this application, namely the 13th February 2006, has largely been in unskilled and semi-skilled occupations of a labouring nature, including rural or farm work, as I would call it. He seems to have been unemployed for a period of three years back in the 1990s.
15 The plaintiff commenced employment with the defendant in December 2004 at Melville Forest on a full-time casual basis. He was employed to do a number of tasks involved in running a farm, including stock work, fencing, feeding sheep and driving farm machinery.
16 On the 13th February 2006, in the course of his employment, he was engaged in raking barley within a silo in order that an auger could transfer the grain to a utility truck. He said in his affidavit that he had completed the raking and was climbing out of the silo when he slipped on the slippery metal surface of the silo and fell, landing on the auger, which he described as a steel pipe about 18 inches in diameter.
17 He fell to the ground below, a distance of some one-and-a-half to two metres, as he said.
18 Following this incident he had pain in his back, and particularly on the left side, and had difficulty coping with work and felt that his condition was worsening.
19 The plaintiff said that on about the 15th February 2006, he saw a Dr Whuff of Coleraine, who prescribed painkilling and anti-inflammatory medication. There is no report from Dr Whuff in the materials.
20 The plaintiff swore that he continued to have pain, stiffness and limitation of movement in his back with pain radiating into the left leg, together with some impaired sensation and numbness in that leg.
21 The plaintiff then attended a Dr Joyce of the Hamilton Medical Group on the 23rd February 2006, who again prescribed painkilling and anti-inflammatory medication and referred the plaintiff to physiotherapy. Dr Joyce also referred the plaintiff to a Dr Abbott, who is a physician within the same medical group as Dr Joyce.
22 Dr Abbott saw the plaintiff on the 6th March 2006, and on examination found the plaintiff to be tender over the fifth lumbar and first sacral vertebrae and on the left side of the iliac crest of his pelvic bone. The plaintiff complained of pain on left straight leg raising but Dr Abbott could find no abnormal neurological signs and the rest of the physical examination was normal.
23 Dr Abbott’s assessment at that time was that the plaintiff had muscular skeletal pain with no good objective evidence of root compression.
24 Dr Abbott arranged for a CT scan of the lumbar spine and pelvis on the 9th March 2006, which was reported as showing a:
“Small posterior left lateral L4-5 disc protrusion partially obliterating epidural fat around the left fourth root in the intervertebral foramen. Other lumbar discs were normal and there was no pelvic fracture or other abnormality.”
25 Dr Abbott saw the plaintiff again on the 20th March 2006 and found him slowly improving but still tender on the left side of his pelvis posteriorly and his left buttock. The plaintiff was able to bend forward but it was painful to twist to the right and there was complaint of painful muscles in his left thigh and a numb feeling in both sides of his left leg and thigh.
26 Dr Abbott arranged for an MRI scan on the 9th June 2006. The conclusion of the report of the MRI was that there was early desiccation of L4-5 disc associated with a small foraminal disc extrusion compressing the left L4 nerve.
27 On the 5th May 2006, according to her report, Ms Hiscock, who had been providing physiotherapy services on the referral from Dr Joyce, found that, inter alia, objectively the plaintiff’s range of movement had greatly improved and that he could flex to his ankles and had almost full lumbar extension and side gliding (underlining mine). It was her view that the lumbar disc derangement was resolving and should continue to do so, and that she felt sure he would regain full capacity to return to his pre-injury status, albeit for other reasons, not with the defendant.
28 Coincidentally, on the same day at the behest of the defendant’s insurer, the plaintiff was examined by Mr Paul Kierce, orthopaedic surgeon.
29 On clinical examination, Mr Kierce found, inter alia:
“No central tenderness in his lumbar spine but tenderness on the left buttock. On attempted spinal flexion his fingertips reached the junction of the middle and lower thirds of his lower legs and other back movements were restricted by 50 per cent of the normal range and were painful. There were no neurological signs in his lower limbs.”
30 Mr Kierce examined the CT scan apparently and repeated that there was shown a left-sided L4-L5 disc protrusion which could be irritating the left fourth lumbar nerve root.
31 Mr Kierce then concluded that the plaintiff had very likely suffered a lumbar disc herniation at the level of the joint between the fourth and fifth vertebrae because of the fall. He thought, amongst other things, that although the disc prolapse may resolve, he would have a permanent weakness in his lower back as a result of the abnormal disc at that level. He also thought that at that level there will be a degenerative process which typically results in recurrent attacks of back pain and or back and leg pain. He thought that he was not unfit for all work but not fit for his pre-injury employment.
32 Physiotherapy continued it seems, although it is a bit unclear in the materials as to with what frequency this occurred. The physiotherapist prescribed a lumbar back brace for the plaintiff but reported on the 29th November 2006 that he was not making much progress with his lumbar symptoms and that left lateral lumbar pain had been persistent despite improvements made, especially as he now had achieved almost full flexion and extension.
33 I have not thus far touched upon medication prescribed for the plaintiff at this stage. It is enough for the moment to say that he was on a regime, both of analgesic medicine and medicine, for a depressive state into which he had fallen, apparently in part at least because of conflict with the defendant’s staff.
34 I return to the next report in the defendant’s Court Book of Mr Kierce although it does not necessarily fit in chronologically with some of the other reports to which I will need to refer, particularly those medical examiners engaged by the plaintiff’s solicitors.
35 Mr Kierce saw the plaintiff again on the 17th November 2006 when the plaintiff told him that he had improved “a bit” but was under a lot of stress for various reasons.
36 On examination on this occasion, the plaintiff, Mr Kierce said, walked normally but needed support when asked to walk on heels and toes, which Mr Kierce thought was inconsistent with his normal gait.
37 Mr Kierce reviewed the MRI examination taken on the 9th June 2006 which showed, as he said, some degenerative changes in the joints between the fourth and fifth lumbar vertebrae and between the fifth lumbar and first sacral vertebrae but without any bulging of those discs.
38 By this time the defendant had obtained the surveillance film to which I have previously referred taken on the 4th October 2006. That video occupies about one hour and twenty minutes’ viewing and consists almost entirely of the plaintiff mowing a large lawn, that of one of his neighbours he said.
39 Mr Kierce was supplied with this video and as a consequence said that it was his opinion that the plaintiff had made a good recovery from his back injury, “this opinion being reinforced by my viewing of the surveillance video and my review of the MRI examination of Mr Nash’s lumbar spine”.
40 In answer to a question as to the plaintiff’s fitness for pre-injury duties, Mr Kierce reported:
“I believe that Bradley Nash does have a current work capacity, however, he is not fit for pre-injury duties and I believe he is permanently unfit for pre-injury duties because of the radiologically demonstrated signs of degeneration, as seen on the MRI examination. There has been a degree of permanent damage to the discs between the third and fourth lumbar vertebrae and between the fifth lumbar and first sacral vertebrae.”
41 Mr Kierce saw the plaintiff for the last time for the defendant on the 13th February 2008. By this time the plaintiff had had either one or two epidural injections to alleviate his claim to pain in his left lower back. The plaintiff told Mr Kierce on this occasion that he does not have any significant left leg pain any more. Also by this time the plaintiff was seeing Dr Mark Johnson as his general practitioner and had been moved to a medication known as MS Contin, which I take to be a much stronger analgesic than that which he had previously been taking.
42 On this occasion, upon examination, Mr Kierce said that the plaintiff walked without any limp, was excessively tender to palpation of the left lower lumbar muscles and could just walk on his heels and toes. On attempted spinal flexion he could reach his fingertips to his knees only and this limited flexion was not improved when he was sitting with his knees fully extended with his hips at 90 degrees flexion. There was limitation to extension and rotation of the lumbar spine and to straight leg raising.
43 In answer to questions put to him by the insurer, Mr Kierce repeated that the plaintiff’s condition was a severe injury to his lumbar spine which had not resolved and was materially contributing to his incapacity and the need for treatment.
44 Mr Kierce was not provided with, on the occasion of this examination, video surveillance taken on the 5th and 7th December 2007.
45 I have thus far deliberately dealt only with Mr Kierce’s reports principally because of his opinion with regard to the radiological examinations of the plaintiff’s spine. For reasons that will become apparent, I regard these as the only reliable objective evidence upon which an opinion can at this point of time be based as to the injury to the plaintiff’s back.
46 The other two medical practitioners with particular expertise in this regard are medico-legal examiners engaged by the plaintiff’s solicitors, being Mr John O’Brien, orthopaedic surgeon, and Mr Geoffrey Klug, a neurosurgeon.
47 Mr O’Brien first examined the plaintiff on the 7th March 2007. I do not propose at the present to outline the plaintiff’s complaints made to Mr O’Brien at this point because, in the light of the video surveillance of the plaintiff which I have seen and of the lengthy cross-examination of the plaintiff upon these complaints, I am of the view that the plaintiff’s reliability as an historian in this regard is, to put it as neutrally as possible, unreliable.
48 When the plaintiff was seen on this occasion by Mr O’Brien, he had a report of the CT scan and of the MRI to which I have referred. He did not view those scans himself.
49 On physical examination, Mr O’Brien said that the plaintiff spent the majority of the time during a taking of the history, standing leaning forward on the back of a chair and had difficulty standing fully erect and preferred to stand with some hip flexion. He said on ambulation there was no obvious limp. There was 50 degrees of lumbar flexion and 10 degrees of extension and all movements were restricted by pain, in particular extension and lateral flexion to the left. Passive straight leg raising was 70 degrees bilaterally. I pause to observe that these are not consistent with Mr Kierce’s observations.
50 Mr O’Brien said that the plaintiff described virtually unremitting back and leg pain since the injury and that suggested that the situation was stable with little response to physiotherapy and thus a change of treatment was required.
51 Mr O’Brien said that:
“The patient now demonstrates significant restriction of lumbar movement without signs of any nerve root irritation or compression. These signs in association with MRI findings indicate the patient has discogenic pathology at the L4-5 disc, precipitating his severe symptoms.”
52 Mr O’Brien went on to say that he thought that the plaintiff presented with a significant disability and that he was now totally incapacitated and incapable of any form of employment.
53 The plaintiff saw Mr Geoffrey Klug on the 28th March 2007. Again, I do not propose to repeat at the moment the complaints the plaintiff gave to Mr Klug for the same reason that I did not do so for Mr O’Brien’s first examination.
54 Mr Klug apparently himself examined the MRI scan and had the radiologist’s report. Mr Klug said the most significant changes were at the L4-5 level and that there was evidence of desiccation changes in that disc, and in addition and significantly there was a small left-sided disc protrusion which was probably causing some distortion of the adjacent nerve root.
55 Clearly, Mr Klug was impressed by the plaintiff’s presentation, although not as pessimistic as to the plaintiff’s future.
56 Mr Klug commented (no doubt in the light of the complaints made to him by the plaintiff) that he would consider the question of surgery would need to be reviewed and that it was possible that a microdiscectomy or similar type procedure could lead to a satisfactory resolution of his problems, particularly those in his left lower limb.
57 I pause to say that this appears to be different from Mr Kierce’s understanding that ultimately the plaintiff was not having trouble with his left lower leg.
58 The plaintiff again saw Mr Klug on the 15th October 2008. Other than saying that to relieve his pain, the plaintiff then was taking MS Contin, 10 milligrams twice a day, and had been doing so for the last year, together with seven to eight Panadol tablets each day, very little had changed, and on examination found that his spinal movements were one-third of the range that he might have expected.
59 Mr Klug thought the long-term prognosis was guarded and that his symptoms would wax and wane.
60 Mr Klug was offered the opportunity of seeing the surveillance video of the 4th October 2006 but for some reason thought it probably not relevant for him to see it.
61 Mr O’Brien last saw the plaintiff on the 1st October 2008. Prior to this time the plaintiff had had what he said were several cortisone injections in his lower back without symptomatic benefit and a nerve root block at the Geelong Hospital with a similar poor result.
62 Under the heading ‘Current Complaints’, Mr O’Brien said as follows:
“Mr Nash now states that he has constant low-back pain mainly on the left side associated with pain radiating into the region of the left hip with pain extending to the left leg, particularly the lateral aspect of the left foot. The patient described the severity of back pain to be 8/10 on a visual analogue scale. The pain is aggravated by prolonged sitting, standing, bending and lifting. He has difficulty with household duties such as vacuuming, making a bed and leaning over a sink washing dishes. Also hanging out the washing causes aggravation of pain. The patient indicated that most physical activities causes pain and most days he tries to relieve the pain by lying down for a short time. In addition Mr Nash stated he has been aware of some intermittent numbness affecting the anterior aspect of the left shin with tingling extending into the fourth and fifth toes.”
63 I pause to say that this complaint with regard to the left leg contrasts with the complaint to Mr Kierce in February 2008.
64 Mr O’Brien went on to record:
“At present Mr Nash states that treatment consists of MS Contin, 10 mg twice a day plus eight Panamax tablets to control pain. He continues to see his local doctor and in early 2008 saw a psychologist. …
… The patient stated he attempts to help his wife (who works) with domestic duties but finds these tend to aggravate his pain. He stated that in October 2007 he attempted to mow the lawn but this resulted in a severe exacerbation of pain and he has not attempted any such activity since.”
65 The question of these complaints were the subject of detailed cross- examination and, in my opinion, revealed, at least in part, the unreliability of the plaintiff as an historian.
66 Mr O’Brien went on to say, under the heading ‘Physical Examination’, as follows:
“Mr Nash had a rather flat effect and appeared in discomfort, changing his positions frequently during the course of the history. However, he demonstrated a relatively normal gait. . . . Lumbar flexion was 40 degrees, with 10 degrees of extension restricted by pain. Tenderness was described in the lower lumbar spine and also in the left buttock. Passive straight leg raising on the right side was 60 degrees and 50 degrees on the left with this precipitating significant back and left buttock pain. There was noted to be buttock pain described on the left hip abduction. Active straight leg raising on the left side precipitated significant pain, as did an attempt at sit up. Power, sensation and reflexes in the lower limbs were normal.”
67 Mr O’Brien said that the plaintiff reported basically no alteration in the severity and distribution of pain in his back and left leg since the initial examination some eighteen months previously. He said that physical signs were again predominantly related to severe restriction in the range of movement in the lumbar spine, in addition, physical loading of the spine aggravated the pain although Mr O’Brien could not find any specific signs of nerve root irritation.
68 Mr O’Brien went on to say that he considered the plaintiff presented with significant discogenic pathology and earlier investigations suggested that this emanated from the L4-5 disc.
69 Mr O’Brien then expressed the view that the plaintiff was therefore capable of undertaking no employment and that his then current clinical condition was the source of substantial restriction of his domestic, social and recreational activities which appeared to be a permanent problem.
70 For the sake of completeness, I should mention that the defendant also had the plaintiff seen by a Dr Gary Davison on two occasions. Dr Davison describes himself as a specialist occupational physician.
71 I do not need to reprise Dr Davison’s reports, other than noting that the plaintiff told him, inter alia, that he continued to experience pain in the left lumbar region of the lower back “like a knife stabbing you” – (emphasis from the doctor).
72 Dr Davison was much more sanguine about the plaintiff’s condition, although acknowledging the MRI findings of L4-5 discopathy with compression of the L4 nerve root.
73 I think it fair to say then that each of the examining specialists accept what is shown on the CT and MRI scans and that the findings will not ameliorate. Indeed I would imagine from experience and other cases that desiccation of the L4-5 disc is more likely to progress than to remain as it is.
74 Mr Klug makes reference to possible surgery although this is not touched upon by the other doctors.
75 It is quite plain, of course, that the doctors have each been influenced by the history they have been given and their so-called “findings on examination”. Cross-examination reveals that much of the history, particularly of more recent times is suspect to say the least
76 Video surveillance also shows that the doctors’ findings of marked restriction of movement on clinical examination is also suspect. They are suspect because, in my opinion, the plaintiff did not always tell or demonstrate what was the true position with regard to any disablement at the moment that he has.
77 I have no difficulty in accepting that, particularly in the early months and years after the accident, that he suffered pain and disability requiring the treatments that were given, and I have difficulty accepting that it is likely that he does have some pain and disability at the present time. But it is not possible, in my opinion, on the matters that have been put before me, to accept with any degree of assurance that which he has protested both in his affidavit and in his recital of impairment to the doctors.
78 The cross-examination of Mr Scanlon was lengthy and detailed. It was founded both on inconsistencies in the plaintiff’s accounts and that which was revealed on some of the video surveillance. It was also founded upon inconsistencies in terms of medication history given by the plaintiff to the doctors. At the conclusion of that cross-examination it was and is my opinion that the plaintiff’s credit was seriously impeached to the point that to accept any proposition he put forward I would like to have found some corroboration.
79 It is appropriate that I give some examples of that of which I speak. I do not propose to go through all of the cross-examination and all of the concessions that the plaintiff made, a number will suffice, not necessarily in the order in which they emerged in the evidence.
80 On the 9th May 2007, the plaintiff’s then doctor, Dr Johnson, changed the plaintiff’s medication to MS Contin, 5 milligrams, together with Panamax tablets. These he apparently took twice per day. This regime continued apparently until the 15th August 2008 when the dosage was doubled to 10 milligrams of MS Contin.
81 Mr Brookes opened the case to me on the basis that the plaintiff was taking 10 milligrams of MS Contin per day to control his pain and the plaintiff told Mr Klug on the 15th October 2008 that he took MS Contin, 10 milligrams twice a day and had been doing so for the last year.
82 Similarly, the plaintiff told Mr O’Brien on the 1st October 2008 that he took the MS Contin, 10 milligrams twice a day to control pain.
83 When the plaintiff was confronted by Mr Scanlon with the proposition that the last time that he had obtained a prescription for that drug was the 31st October 2008, the plaintiff purported not to remember. Under further cross- examination, he proceeded to say that he “did miss some days” in taking that drug, to “I try not to take it all the time”, to that he was trying to take very little of it because it made him sick, to “I take it occasionally”.
84 Another example relates to the contents of paragraph 11 of his affidavit. The whole of the assertions contained in that paragraph were challenged by the defence and, in my view, that cross-examination, together with the surveillance films, showed gross exaggeration of the plaintiff’s limitations in his everyday life.
85 One sentence in that paragraph reads:
“Prior to the incident I enjoyed fishing and trail bike riding, but these
activities are now limited and I have sold my trail bike.”
86 The clear inference I thought that was to be drawn from the assertion that he had sold his trail bike was that that was because of the accident.
87 It transpired under cross-examination that he had arranged to sell his trail bike to his brother before the accident and not because of it.
88 The video films shown to the Court in total occupied some four hours and fifteen minutes. The first of those I viewed in my chambers at the suggestion of counsel and the last of them that were shown was, in effect, fast-forwarded in an attempt to save some Court time.
89 However, in my view what they showed was that the plaintiff was capable of doing things that he had earlier asserted that he could not do. These activities included, particularly, the use of a “box trailer” to shift furniture, take some rubbish to the tip and load with trail bikes used, he said, by his children.
90 The plaintiff sought to insist that on all occasions that he had done such activities – limited he said – he had been able to accomplish what he was shown to be doing with help. In my view, on at least a number of those occasions, the help was either limited or non-existent.
91 Further, he demonstrated that contrary to assertions made by him that he moved freely, he could enter his 4-wheel drive vehicle using his left leg without apparent inconvenience, was able to pick up his three-year old child which he had sworn that he avoided doing because it hurt his back, and could lift a 20-kilogram water container without too much difficulty.
92 It would be tedious for me to recite any further detail of the two days of cross- examination and film with which the Court was confronted. I accept that it was appropriate for the defence to conduct such cross-examination as it transpired.
93 Perhaps the most stark of the matters pointed up by that cross-examination was that the plaintiff was driven to acknowledge that the opinion of Mr O’Brien that the plaintiff was totally incapacitated and would be incapable of undertaking any employment at all was, as matters stand at this moment, unjustified. That opinion was based upon the plaintiff’s imperfect presentation to the doctor.
94 In objections to some of the cross-examination and in his final address, Mr Brookes valiantly sought to ameliorate the effect of the plaintiff’s concessions. Thus we had debates about the exact semantics of some expressions, a reference to the assessment by a psychologist of the plaintiff as being not as gifted intellectually as others in the community, and the so-called “unfairness” of some of the questions and manner of questioning of the plaintiff by defence counsel.
95 However, in my view, the plaintiff showed considerable guile in seeking to, in his answers, soften the effect of his demonstrated activities.
96 I mean no disrespect to counsel on either side in not reviewing their final addresses. I have re-read them and taken them into account, together, as I say, with the reference to authority made therein.
97 I have indicated that leave will be given to the plaintiff to institute common law proceedings for pain and suffering damages only.
98 However, that is not the end of it. In my view, this case took far longer than it should have and the reason for that is the plaintiff’s clearly demonstrated exaggeration of his condition between at least 2007 and the present time. Had the plaintiff been honest in his presentation to doctors as to his capacities and not sought to minimise them in his affidavit, this case should have taken not much more than a day.
99 I am tentatively of the view that the normal order for costs as following the event should not prevail in this action and I will hear argument from counsel upon the topic after they have perused these Reasons.
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