Nikolovski v Holloway

[2011] WADC 11

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   NIKOLOVSKI -v- HOLLOWAY [2011] WADC 11

CORAM:   DAVIS DCJ

HEARD:   12, 16 - 25 & 27 AUGUST 2010

DELIVERED          :   28 JANUARY 2011

FILE NO/S:   CIV 157 of 2006

BETWEEN:   NIKOLA NIKOLOVSKI

Plaintiff

AND

KERRY RAE HOLLOWAY
Defendant

Catchwords:

Negligence - Motor vehicle accident - Causation - Whether plaintiff suffered rotator cuff injury - Assessment of damages - Turns on own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943, s 3C

Result:

Judgment for the plaintiff in the sum of $25,411

Representation:

Counsel:

Plaintiff:     Dr P R MacMillan

Defendant:     Mr D M G Burton

Solicitors:

Plaintiff:     S C Nigam & Co

Defendant:     SRB Legal

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

Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17

Beer v Duracraft Pty Ltd [2004] WASCA 192

Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) [2008] WASC 239

Bennett v Minister of Community Welfare (1992) 176 CLR 408

City of Stirling v Tremeer (2006) 32 WAR 155

CSR Ltdv Eddy (2005) 226 CLR 1

Den Hoedt v Barwick [2006] WASCA 196

Grainger v Williams [2009] WASCA 60

Insurance Commission of Western Australia v Weatherall [2007] WASCA 264

Jones v Dunkel (1959) 101 CLR 298

Jongen v CSR Ltd (1992) Aust Torts Reports 81‑192

Newman v Nugent (1992) 12 WAR 119

Pollock v Wellington (1996) 15 WAR 1

Public Transport Authority v E Djano [2010] WACC C9-2010

Purkess v Crittenden (1965) 114 CLR 164

Setton v Eves [2006] WASCA 3

Shorey v PT Ltd (2003) 77 ALJR 1104; (2003) 197 ALR 410

State Government Insurance Commission v Oakley (1990) Aust Torts Reports 81-003

TA v Lucky Import & Export Co Pty Ltd [2002] WASCA 65

Thomas v O’Shea (1989) Aust Torts Rep 80‑251

Watts v Rake (1960) 108 CLR 158

1. DAVIS DCJ:  Saturday 28 September 2002 was Australian Rules Football grand final day.  The grand final is played in Melbourne, but many Western Australians watch the final live on television.  The plaintiff, Mr Nikolovski, planned to go and watch the final at the Macedonian Club. 

2. At around midday, Mr Nikolovski left his home, driving his car down Blisset Way, Hamersley, towards Wanneroo Road, intending to turn right into Wanneroo Road.  Wanneroo Road at that point is a dual carriageway, with a grassed median strip with kerbing in the centre of the carriageway separating two lanes of north bound and two lanes of south bound traffic.  Mr Nikolovski stopped at the stop sign at the end of Blisset Way, at the T-junction of Wanneroo Road.  He crossed over the north bound carriageway of Wanneroo Road to the middle of the intersection, where there is a break in the median strip, where he stopped before moving to make a right hand turn into the south bound carriageway.

3. The defendant, Mrs Holloway, was driving her car, a Suzuki Vitara, at the same time.  She wanted to go shopping, taking advantage of the fact that most people would be watching the grand final.  She also drove down Blisset Way, intending to turn right into Wanneroo Road.  She proceeded from the stop sign at Blisset Way into the middle of the intersection of Wanneroo Road, behind Mr Nikolovski. Seeing Mr Nikolovski move, she began to turn right into Wanneroo Road.  Mr Nikolovski stopped again, however, and Mrs Holloway collided into the rear of Mr Nikolovski's car.

4. Mr Nikolovski claimed that as a result of this collision he suffered injuries to his cervical spine and right shoulder, relating to his rotator cuff, which had caused him constant and unchanging pain since 2002 and rendered him totally unfit for work. 

5. Mrs Holloway admitted that she was negligent in her driving and collided with the rear of Mr Nikolovski's car, but denied liability for the injuries and damages alleged to have been suffered by Mr Nikolovski.  In her defence it was said that the collision occurred at low speed and the impact of the collision could not have caused any or any serious injury to Mr Nikolovski.  It was submitted also that Mr Nikolovski had misrepresented which car he was driving at the time of the accident, misrepresented the extent of damage to his car, misstated his medical history to medical practitioners, exaggerated and misrepresented his ongoing symptoms and complaints and that he has been malingering.

The issues

1. The factual and legal issues in this case are:

   1.What car was Mr Nikolovski driving at the time of the accident?  Mr Nikolovski says he was driving a blue 1991 Ford Fairmont sedan; Mrs Holloway says it was a pale green sedan. 

   2.How did the accident happen?  This arises because of the defence that this was a low impact collision which could not have caused any or any serious injuries.

   3.What, if any, injuries did Mr Nikolovski suffer as a result of the accident? 

   4.What is the nature, extent and severity of each injury found to have been suffered by Mr Nikolovski as a result of the accident?

   5.Was Mr Nikolovski's claimed loss and damage caused by his injuries suffered in the accident?

   6.Whether Mr Nikolovski has failed to mitigate his loss and damage.

2. The main focus at trial was the issue of causation and whether the accident was the cause of Mr Nikolovski's shoulder problems, related to his rotator cuff. 

3. The rotator cuff comprises four tendons: the supraspinatus, the infraspinatus, the subscapularis, and the teres minor. These tendons attach into the top of the humerus or head of the shoulder and stabilise the shoulder while you lift your arm.  The suprasinatus tendon is at the top of the rotator cuff.  The acromion is part of the scapula bone on top of the shoulder.  As the arm is lifted, if the acromion rubs or 'impinges' on the surface of the rotator cuff, causing pain and limiting movement, this is known as subacromial impingement.  This may occur because the bone may be too large.  Pain may be produced when the rotator cuff is damaged or torn.  Another reason for pain is that the bursa, the sac of fluid in the subacromial space below the acromion and above the shoulder which protects or cushions the tendons, becomes enlarged or inflamed.  That is known as bursitis. 

4. As reported by Mr Ecker on 30 April 2003, an MRI scan of Mr Nikolovski's shoulder demonstrated widespread degenerative changes in the rotator cuff.  An ultrasound was interpreted as demonstrating a high grade partial thickness to full thickness tear of the anterior of the supraspinatus tendon.  A CT scan demonstrated a small antero-inferior acromial spur with sclerosis over the greater tuberosity consistent with the long term sequelae of chronic subacromial impingement. 

5. Mr Ecker performed surgery on this shoulder, on 9 March 2004.  The problems with Mr Nikolovski's shoulder as found by Mr Ecker during this operation were:

   1. Sub-acromial impingement.  As Mr Ecker described 'the head of his humerus was riding up, his rotator cuff was wearing out and the cuff was getting squashed between the head of the humerus and the acromion, as he was elevating his shoulder';

   2.Minor partial thickness abrasion of the bursal surface of the supraspinatus tendon.  As Mr Ecker explained it, it was not a full tear, the rotator cuff was intact and that was where he left it.

6. The only procedure performed in that surgery was a right shoulder arthroscopic acromioplasty.  Mr Ecker in his evidence described that this involved shaving off a bony prominence (or spur) that was rubbing on the rotator cuff, in order to relieve the impingement.  Mr Ecker did not find it necessary to carry out any repair to the partial tear of the supraspinatus tendon.

7. The defence submitted that the problems with Mr Nikolovski's right shoulder were pre-existing, due to the degenerative changes identified by Mr Ecker.  The defence has also raised that Mr Nikolovski previously suffered back and neck injuries in an earlier motor vehicle accident in 1997.

8. There was also pleaded a further claim for psychiatric injury, including major depression and anxiety.  In opening, counsel for Mr Nikolovski forshadowed the calling of evidence from a psychiatrist.  That psychiatrist was not called and in closing submissions counsel for the defence asked me to draw an adverse inference accordingly, on the basis of Jones v Dunkel (1959) 101 CLR 298. Counsel for Mr Nikolovski, however, advised that the claim for psychiatric injury was no longer pursued.

9. Influencing all the issues in this case is the question of Mr Nikolovski's credibility.  This is an important factor in the assessment of both liability and damages, particularly as the medical practitioners called in support of Mr Nikolovski's case agreed that their opinions were based on an acceptance of what Mr Nikolovski told them about his symptoms, pain and disability.  The defence submission was that Mr Nikolovski was neither truthful nor reliable in what he told those medical practitioners, nor in his evidence at trial.  Counsel for the defence made detailed submissions concerning Mr Nikolovski's credibility.  In support of these submissions the defence placed considerable reliance on surveillance film taken of Mr Nikolovski during July 2004, March, April and May 2005 and December 2007. 

Mr Nikolovski's credibility

1. Mr Nikolovski's first language is not English, it is Macedonian, and he does not have a high standard of literacy.  He had to be assisted in the taking of the oath, as he had difficulty reading it.  His evidence, and that of his son, was that he could not read and write very well and his son helped him in completing forms following this accident.  I observed that his comprehension of the spoken word was, however, good.  He had no problem understanding what he was being asked and he was able to express himself and answer questions without difficulty, apart from some difficulty with English grammar and expression.

2. Mr Nikolovski gave evidence that he had pain in his neck and right shoulder immediately following the accident, that since then the pain had never disappeared and that he was in the same condition today.  No treatment had helped him, including the surgery carried out by Mr Ecker in March 2004.  He agreed that on 23 July 2004, he saw Mr Ecker and described his pain as constant and so severe that he was unable to sit in the chair.  He agreed that he had told Dr Alan Home, an experienced occupational physician who first reviewed Mr Nikolovksi on 24 September 2004, that he used his right arm or hand only 20% of the time.  Mr Nikolovski's evidence was that he could not lift his right arm above shoulder height.  He then said that he 'could' but he would be in a lot of pain afterwards.

3. The most recent comprehensive medical reviews of Mr Nikolovski had been undertaken by Dr Home, who saw Mr Nikolovski on 23 July 2009 and another occupational physician, Dr Andrew Harper, who saw him only on one occasion on 5 July 2010.

4. Dr Home prepared a report dated 24 July 2009 in which he set out Mr Nikolovski's present complaints and disabilities.  These included constant pain in his right shoulder, a restriction in the motion of his right shoulder and pain restricting his capacity to use his right upper limb.  Mr Nikolovksi told Dr Home that he primarily used his left hand for menial activities such as steering his motor vehicle, lifting shopping bags and turning on taps.  Mr Nikolovski advised that he would try to use his right hand for maybe 20% of the time but used his left hand about 80% of the time.  He said he drove only short distances and that his wife usually drove when she was in the car.  He estimated a capacity to sit for no more than two hours.  He said that he could lift items with a weight of no more than 2 kg with his right hand.  As summarised by Dr Home in his report, Mr Nikolovksi described ongoing constant headache, right sided neck pain and right shoulder pain that he said had been present since 2002.  He also reported a restricted range of motion at the right shoulder that he said had been present since 2002, despite surgical management in 2004.

5. Dr Harper prepared a report dated 6 July 2010 in which he set out Mr Nikolovski's complaints.  The principal complaint was one of mood changes and depression.  Mr Nikolovski complained of right upper back pain, in the superior angle of the right scapula, which he said was constant pain and was aggravated by lifting, swinging his arm when walking and using a seatbelt when driving.  Sometimes there was more movement than others.  He said he could achieve 70% of movement, at best, when he lifted his arm sideways (abduction) and said that his right arm was 'very weak'.  He complained of right sided neck pain radiating from the right upper back, associated with headache and visual disturbance.  He said his neck was stiff and the muscles cramped.  Regarding the course of symptoms, Mr Nikolovski told Dr Harper that there was a progressive increase in severity of symptoms from the time of the accident until surgery.  After surgery there was some improvement but since then they had plateaued.  Throughout his review with Dr Harper, Mr Nikolovski held his right arm in a protected position.

6. My own observations of Mr Nikolovski while he gave evidence were that he was able to sit for extended periods in the witness box for more than two days, while giving evidence.  He appeared comfortable and in no apparent pain or discomfort.  On more than one occasion he stood to give a demonstration of something.  When I saw him stand he did so without any assistance – for example, he did not lean on the bench in front of him or his chair to help himself up. 

7. Mr Nikolovski freely moved his neck while giving evidence.  Two particular examples demonstrates this.

8. Mr Nikolovski gave evidence about having seen Mrs Holloway's Suzuki parked in the driveway of her home, a few days after the accident, while he was walking with his wife.  While he described how he and his wife had walked on different sides of the road, and she was looking at the Suzuki, I observed him to move his neck freely up and down, and from side to side.  He exhibited no signs of pain or discomfort.

9. The surveillance film taken in July 2004 showed Mr Nikolovski pushing a trailer load of wood.  His explanation at trial was that he had placed the hitch of the trailer on his right leg in order to take most of the weight.  He gave a demonstration of how he had unhitched the trailer and put it on his leg.  To give this demonstration Mr Nikolovski stood up out of his chair, without having to lean on the bench or his chair to get up.  He stood sideways in the witness box, towards the front of the courtroom, with his back and side towards counsel.  He used both arms to demonstrate what he had done and turned his neck fully, without restriction, to look behind his back at his counsel.   He exhibited no signs of pain and discomfort.

10. I observed Mr Nikolovski using his right arm and hand on other occasions.  He usually used his right hand to turn pages in the books of documents he was asked to look at in the witness box, although sometimes he used his left hand.  I also observed him several times raising his right arm with no apparent discomfort or pain.  For example, in his evidence on the morning of the first day of the trial he described his work as a cook, his employment at the time of the accident.  While he described cutting and chopping meat and vegetables he demonstrated a chopping action using his right arm, lifting his hand above shoulder height, up and down, with no apparent restriction.  Later during cross-examination he was asked to lift his right arm to show what he had shown his doctors.  He lifted his arm in what is known as a flexed position, that is, directly in front of his body.  He lifted it once above shoulder height.  When he was asked to repeat the demonstration, he lifted it only to shoulder height.  When challenged about his ability to lift his arm, he argued:

    I say, 'If I lift it - is no point to lift it two second like that, then after holding all day like this, shaking like this'.  The point is, we're talking about for work.  We're not - only to raise arm like this.  Then after that you get the pain kill tablets and sitting in the - in the - in the couch.  Was that point?  Is no point.  I'm talking about raise easily.  My arm is not arm any more like used to - was before.

11. I observed no shaking on Mr Nikolovski's part after this demonstration and he displayed no obvious signs of pain.  He was, in fact, strident in his vocal protestations to counsel.

12. There were a number of discrepancies between Mr Nikolovski's evidence and statements he had made to his medical practitioners.  For example, there were marked differences in Mr Nikolovski's account of how the accident occurred as given at trial, and what he told Dr Home.  Mr Nikolovki's evidence at trial was that after Mrs Holloway's vehicle had collided with his, his front wheels had ended up on the grassed median strip.  He told Dr Home, however that his car was pushed 10 m forward, across the opposite side of the road.  Mr Nikolovski attempted to explain this in cross-examination by saying that he meant 'pushed from 10 m from the back', however, he had previously admitted that he had not seen Mrs Holloway's car before the collision.  He also told Dr Home that he was assisted by passers-by to alight from the vehicle and that his car had been towed away.  There was no evidence at trial of either of these events.

13. Another example of discrepancies between Mr Nikolovski's evidence and what he told his medical practitioners relates to accounts he gave about his work history.  At the time of the accident Mr Nikolovski was employed at Steers Carvery, a lunch time food hall outlet, as a cook.  He took three weeks sick leave, returning to work on 21 October 2002.  Mr Nikolovski's evidence was that after his return to work he only carried out light duties, with no heavy work.  Mr Nikolovski was reviewed by another medical specialist, Dr Ross Goodheart, a consultant neurologist.  In a report dated 21 July 2010 Dr Goodheart recorded Mr Nikolovski giving a history that he had been unable to return to work for six weeks and that following his return to work he had been lifting 15 kg pieces of meat.  In May 2003 the carvery business shut down and Mr Nikolovski lost his job.  Mr Nikolovski told his general practitioner, Dr Rehman, however, that he was 'sacked' from his job. 

14. The evidence from each of Dr Home, Dr Goodheart and Dr Rehman, which was not challenged, was that their notes were made contemporaneously as they took Mr Nikolovski's history and they accurately recorded what he told them both in their notes and their written reports.  I accept Dr Home's, Dr Goodheart's and Dr Rehman's evidence on this issue of what Mr Nikolovski told them. 

15. Mr Nikolovksi claimed in his evidence that he was depressed, although he gave little or no particulars of the symptoms from which he suffered.  He merely expressed a conclusion that 'I have big depression'.  This evidence was given at a time when it was expected that his treating psychiatrist, whom we heard was Dr Sanath de Tissera, would be called to give evidence.  I observed Mr Nikolovski's demeanour when giving evidence that he was 'depressed' to be subdued.  This contrasted markedly from his demeanour earlier in the day when he had engaged in lively and animated discourses.  For example, he gave an animated description, moving in his chair and using his hands, as to how the accident occurred.  During cross-examination he was also animated, with exchanges occurring with defence counsel, raising his voice on many occasions, particularly on the morning of the second day.

16. Mr Nikolovski was argumentative on many occasions.  During cross‑examination he often answered questions with his own question or questions.  For example, when he was being cross‑examined about telling Dr Rehman he had been sacked from his job, his response was:

    No, I haven't been sacked.  Never been sacked … How can I be sacked from who when the shop closed down?  From who I sacked? 

1. Later in cross-examination, however, when it was put to him that the only reason he stopped working was because the business collapsed due to financial reasons, he answered:

   That's not true.  If I - if I stopped with that why did that many doctors on my x-ray they show me and they - all they say to me, 'We wait for the theatre to get the operation'?  They aren't lying, the doctors.  They aren't lying; the x-ray examination, what they said to me.

2. This and other answers given by Mr Nikolovski also demonstrated to me that he was fully aware of the issues in this trial and wished to stress both his disability and the fact that he was unfit for work. 

3. As well as argumentative, I found Mr Nikolovski to be evasive on many occasions.  For example, he was taken to an RAC Insurance claim form which he had completed, with the assistance of his son, in relation to the damage to his car.  On page 2 of that form were a number of questions with a tick box next to them, to tick either 'yes' or 'no'.  One of the questions which had been ticked 'no' was the question 'Was there any physical injury to persons?' Mr Nikolovski claimed he could not see a tick in the 'no' box on the copy of the form provided (by his solicitors) to the court.  That tick was, in my view, clearly able to be seen.  The original of the form was then produced.  Mr Nikolovski continued to be evasive when he was asked if he could see the tick in the 'no' box on the original form.

4. Mr Nikolovski was also evasive in answering questions about the settlement of his damages claim following the 1997 motor vehicle accident and how the settlement sum was made up.  He was evasive when answering questions about his wife's health and whether she had suffered an injury at work (a matter which was relevant to his claim that his wife had assisted him in moving the trailer full of wood, captured on the surveillance film in July 2004).  He was evasive when answering questions about how he had measured and weighed the doors which he was seen carrying in further surveillance film taken in December 2007.

5. These doors were two doors he had picked up from a salvage yard for his son.  His son was building a house and temporary doors fitted to the house had been damaged and had to be replaced.  Mr Nikolovski was asked how he knew the measurements and weight of the doors, since they had been fitted to his son's house in December 2007 and he had not seen the surveillance film until some time in 2008.  After some questioning, Mr Nikolovski claimed that he still had those two doors in his garage, and that he had weighed them.  Mr Nikolovski's son, Mr Deni Nikolovski, gave evidence that the doors had been fitted to his house as a temporary measure, then when permanent doors were fitted, the temporary doors collected by his father had been removed and 'we threw them in the bin'.  I accept the evidence of Mr Nikolovksi's son on this issue. 

Inconsistencies in Mr Nikolovski's presentation to doctors

1. Also relevant to Mr Nikolovski's credibility is the fact that a number of experienced medical practitioners observed inconsistencies in Mr Nikolovski's presentation. 

2. To understand the inconsistencies it is necessary to explain the type of pain produced by a rotator cuff problem.  As explained by the medical witnesses in this case, a rotator cuff problem produces pain from the shoulder radiating down the arm towards the elbow and pain is mainly experienced when lifting the arm out to the side (abduction) or lifting the arm up in front of the body (flexion).  Where there is subacromial impingement the shoulder cannot be elevated above the horizontal.  It means that rotator cuff tendons are getting impinged under the bone. Mr Ecker explained that shoulder pain characteristically occurs on the lateral side of the arm and rarely at the apex of the shoulder itself.  Neck pain is in the back (along the trapezius), and goes down the arm.

3. Mr Ecker demonstrated that a person with subacromial impingement will have pain in the shoulder when they lift their arm up (to the horizontal), then they will get better.  As the arm comes down, it will hurt because the shoulder is rubbing underneath the acromion.  On rotation, the head of the shoulder grinds underneath and the person may feel rubbing or crunching, and it is often, nearly always, associated with pain.

4. In his reports and at trial Mr Ecker expressed doubts about Mr Nikolovski's presentation.  Mr Ecker said in his evidence that Mr Nikolovski complained of 'pain everywhere' and was a difficult patient to evaluate.  When Mr Ecker asked Mr Nikolovski to lift his shoulder as far as he could go it was a short lift, just above waist height.  Mr Ecker was able to lift Mr Nikolovski's arm higher but 'he'd be all over the chair'.  Mr Ecker explained that 'somebody who has had such severe pain and couldn't lift their shoulder past there, I wouldn't expect to be able to get the shoulder up to that height'.  Mr Ecker also said that the character and distribution of the pain reported by Mr Nikolovski was not typical of referred pain from a shoulder.  He had a marked extenuated pain withdrawal response which made it difficult to interpret the findings on clinical examination.  Mr Ecker noted that the symptoms and clinical findings were consistent with an embellished or elaborated component to Mr Nikolovski's presentation.  On 26 June 2003, Mr Ecker wrote in his report that:

   There are features of a maladaptive illness behaviour response … A diagnosis would need to be made as to whether or not his problem is the result of an atypical illness behaviour pattern, somatisation related to an underlying depressive illness, conversion reaction syndrome or a deliberate elaboration of symptoms for the purpose of secondary gain (malingering).

5. Those four possibilities – a maladaptive illness behaviour response, depressive illness with somatisation, histrionic behaviour with a conversion reaction, or malingering - were repeated in Mr Ecker's later report of 21 March 2005 as the only possibilities which could explain Mr Nikolovski's presentation.  Mr Ecker said he would defer to a psychiatrist or psychologist who is skilled in the area for an opinion on these matters, as it was not within his area of expertise.

6. Mr Ecker found further inconsistencies in Mr Nikolovski's presentation following his surgery in March 2004.  Mr Ecker explained that when he lifted Mr Nikolovski's arm he could achieve a near complete range of passive motion, but actively Mr Nikolovski was unable to elevate his arm.  He had a severe pain withdrawal response when Mr Ecker attempted to examine the shoulder. 

7. Mr Nikolovski was also reviewed, both before and after his shoulder surgery, by another orthopaedic surgeon, Mr Cameron Thrum.  In a report dated 1 July 2004 Mr Thrum recorded discrepancies between Mr Nikolovski's subjective complaints and his objective findings. After reviewing Mr Nikolovski on 19 September 2005, Mr Thrum recorded in a report dated 22 September 2005 that there were discrepancies between formal and informal examination, suggesting some degree of abnormal pain behaviour on Mr Nikolovski's part.  Mr Thrum's evidence was that he found a difference in Mr Nikolovski's range of movement in formal testing and his movement when under informal examination, such as getting out of a chair or turning around to look at something.  On formal examination of Mr Nikolovski's shoulder Mr Thrum found limited external or internal rotation, and almost no movement in abduction and flexion.  There was, however, as Mr Thrum described it 'a good deal more freedom of movement when putting on his shirt.'  Mr Nikolovski was also able to put his arms against a wall with the shoulder movement to 90 degrees. 

8. In his report dated 30 September 2004, Dr Home recorded that while taking a history from Mr Nikolovski he noted a fair range of cervical rotation in both directions.  However, during formal examination the movements in his neck were stilted.  When Dr Home reviewed Mr  Nikolovski on 23 July 2009, he noted that when asking Mr Nikolovski to move his neck there was limited movement.  A minute or two later, Dr Home pointed to a little mark which Mr Nikolovski had on his right shoulder and asked him what it was and Mr Nikolovski turned his neck around normally, 70 degrees, to look at it.

9. Another orthopaedic surgeon, Dr Michael Tiller, reviewed Mr Nikolovski, at the request of his solicitors, in October 2008.  As recorded both in written reports and in his evidence at trial, Dr Tiller advised that it had been difficult to examine Mr Nikolovski because as soon as he was touched, he was in pain and his reaction was, as Dr Tiller described it 'quite dramatic'.  In a report dated 5 November 2008, Dr Tiller recorded that Mr Nikolovski had some difficulty dressing and undressing, but no difficulty getting up to and down from the examination couch.

10. These medical practitioners also observed that Mr Nikolovski had no muscle wasting in his right arm.  If, as Mr Nikolovski had maintained, he was in constant pain and unable to use his right arm, some muscle wasting would be expected. 

11. Mr Thrum noted on his review on 19 September 2005 that Mr Nikolovski had altered sensation over the whole of the right arm in a non‑anatomical distribution and global weakness of grip, meaning that he was not able to grip with any strength.  There was, however, no evidence of muscle wasting.  In fact, Mr Thrum measured both arms, which had equal circumference, confirming that there had been no muscle wasting.

12. Dr Tiller gave evidence that he would expect some wasting with a long history of an inability to use the shoulder, but he could see no wasting of Mr Nikolovski's right upper limb.  Dr Tiller said he could not quite understand why there was no muscle wasting.

13. Mr Ecker recorded in his report of 29 June 2005, and confirmed at trial, that Mr Nikolovski's reported severe pain and the inability to use the upper limb was difficult to reconcile with the absence of muscle wasting in the pectoral girdle and the right upper limb.

14. Mr Nikolovski told Dr Home on 23 July 2009 that he used his right hand only 20% of the time and his left hand about 80% of the time for manual activity. Dr Home measured Mr Nikolovski's biceps, however, and found that his right arm was symmetrical with the left.  A measurement was taken below the elbow and Mr Nikolovski's right forearm was found to be 7 mm larger than the left.  Taking into account the measurements, Dr Home's view was that the muscle development was consistent with right hand dominance.  As Dr Home explained it:

    In a patient who has - has used their left arm preferentially to their right as he says, 80 per cent/20 per cent, who uses their left arm to do most activities of daily living, it effectively has changed dominance.  You would expect the left arm to be larger than the right.  You would normally get about 1 to 2 centimetres of wasting that would persist.  So you would expect 1 to 2 centimetres of wasting above the elbow and at least a centimetre of wasting below the elbow.  The - the arm just doesn't get back to its normal size if you're not - if you don't get - don't have the opportunity to continue to use it.  If someone - if someone vigorously exercises during a period of physical rehabilitation, they may maintain their muscle bulk for a while, but generally over time you will lose the muscle tone and there will be measurable wasting that will persist.  And the only way you can get it back is by using the arm normally for a sustained period.

15. The absence of wasting in the right upper limb does not support the history which Mr Nikolovski had provided of constant right shoulder pain and a restricted range of motion of the right shoulder, present since 2002.

The surveillance

1. Finally, relevant to Mr Nikolovski's credibility, there is the surveillance film.  The DVDs of this surveillance were played during Mr Nikolovski's cross‑examination.  They had been seen by Mr Nikolovski before trial at some time in 2008 and they had also been seen by most of the medical practitioners who gave evidence, some of whom had provided written reports following their review of this surveillance. 

2. It is true that surveillance recordings have limitations and must always be interpreted with caution because there are well-known pit-falls.  The symptoms of a genuine disability might be minimized by pain relief or other aids, or a person's symptoms might fluctuate.  A decision-maker must be alert for mitigatory or explanatory factors, be wary of one-off, isolated or intermittent incidents and look for trends or corroborative features in the evidence:  Public Transport Authority v E Djano [2010] WACC C9-2010 [67]. 

3. It is necessary, therefore, for me to look carefully at what Mr Nikolovski stated he was able or unable to do at the relevant times of the surveillance and compare that with what is shown on the surveillance film on each occasion, and any explanation given by Mr Nikolovski about this.  I need to also take into account what the medical practitioners have said following their reviews of the surveillance.

The 2004 surveillance

1. On 28 June 2004 Mr Nikolovksi told Mr Thrum that he had problems with pain and loss of power in the right shoulder, had limited movement of the right arm, and pain from the neck going to the right arm and into the hand. 

2. On 5 July 2004 Dr Rehman recorded in his notes of a visit from Mr Nikolovski 'continues to be in pain'.

3. On 23 July 2004 when he saw his orthopaedic surgeon, Mr Ecker, Mr Nikolovski described his pain as constant and agreed that he told Mr Ecker at that appointment that the pain was so bad he was unable to sit in the chair.  Mr Nikolovski described the pain in his shoulder as 'like rocks'.  He said that there had been no improvement following the arthroscopic surgery on 9 March 2004. 

4. On 5 August 2004 he saw his general practitioner, Dr Rehman, who recorded that Mr Nikolovksi had not shown any improvement and that he continued to 'be in pain as before'.

5. In August 2004 Dr Rehman arranged for Mr Nikolovski to be seen by a clinical psychologist, Dr Bill Douglas, who diagnosed depression.  On 3 September 2004 Dr Douglas reported to Dr Rehman that since the accident Mr Nikolovski's 'pain problem has persisted at a moderate to severe level ever since and treatment to date has not resulted in any significant improvement' and 'his sleeping pattern is quite disturbed, he experiences daily headaches … and his mood has been depressed'.

6. At his review by Dr Home on 29 September 2004, Mr Nikolovski gave a description of considerable functional disability.  As set out in Dr Home's report dated 30 September 2004, Mr Nikolovski reported that over the past two years since the accident, there had been no recovery or improvement of his symptoms, even after the surgery on 9 March 2004.  He described an inability to lift weights of more than 2 kg to 3 kg in his right hand.  He described driving only short distances and difficulty controlling the steering wheel whilst driving.  He stated that prolonged walking exacerbated his shoulder.  He could only undertake dominant right hand manual activity for short periods.  He stated he did not use his dominant right hand for most activities of daily living including brushing his teeth, toileting and feeding himself.  He said he did not undertake any domestic chores.  He told Dr Home that he had difficulty in putting shirts over his head and consequently always dressed in shirts with buttons.    

7. The 2004 surveillance film shows Mr Nikolovski on two days, 28 and 29 July 2004.  This was taken within six days of Mr Nikolovski's review by Mr Ecker, within a month of seeing Dr Douglas and within two months of seeing Dr Home, at a time when according to what he reported to all doctors, he was suffering considerable pain, disability and depression.

8. On 28 July 2004 Mr Nikolovski was wearing a tracksuit and underneath that he appeared to be wearing a collared t-shirt.  On 29 July 2004 he was clearly seen to be wearing a round necked t-shirt underneath a cardigan.

9. On both days he was shown driving.  He used his right hand to unlock and open the driver's side door when getting into the car, and to lock the door after getting out of the car.  He got into and out of the car without any apparent difficulty.  He drove with both hands on top of the steering wheel, turning the wheel using both hands.  When he turned the wheel he moved his right arm, which was extended with his right hand holding the top of the steering wheel, across his body from right to left.  I could observe no difficulty in his control of the steering wheel.  He was shown reversing the car, turning his head both to the right and left without any apparent restriction in his neck.

10. On 28 July 2004 he was with a friend, who was a passenger in Mr Nikolovski's car, while Mr Nikolovski drove.  He drove to a nursery.  He and his friend got out of the car.  Mr Nikolovski walked without any restriction.  I observed him smiling and conversing with his friend in a normal fashion.  He drove back to the friend's house, where he collected his wife.  He was filmed conversing with his friend, smiling and turning his head before getting back into his car.  His wife sat in the passenger seat while Mr Nikolovski drove, again reversing out of the driveway of the house without any apparent restriction in the movements of his neck.

11. On 29 July 2004 he was filmed driving, this time towing a trailer.  He was shown at a service station putting air in a tyre.  He used his right hand to undo and do up the valve cap on the tyre.  He crouched and bent down without any apparent restriction in his movements and turned his neck more than once, in both directions, also without apparent restriction.

12. The evidence was that after leaving the service station Mr Nikolovski drove, with his wife as passenger, to a wood yard where they loaded the trailer with firewood.  Filming recommenced when they returned to their home and had backed the trailer into the driveway.  Mr Nikolovski was filmed pushing the trailer containing its load of wood, unhitched from the towbar.  He pushed with his right hand supporting the hitch of the trailer and his left hand on top of the wood on the trailer.  He pushed the trailer into the carport of the home.

13. From a lay point of view, Mr Nikolovski appeared to be outgoing, alert, and functioning well on both of these days, 28 and 29 July 2004, with no apparent restriction in his neck or right arm.

14. Mr Nikolovski claimed, in relation to the surveillance film showing him lifting and pushing the trailer, that he had put the trailer on his leg in order to take most of the weight.  He argued that the surveillance film had been edited; that there were portions not shown.  Mr Nikolovksi also claimed that his wife was out of vision, inside the carport, helping by pulling the trailer.  Mrs Nikolovski also gave evidence to the effect that she was in the carport pulling the trailer.  However, when she was asked how far she had pulled it, she answered 'one metre'.  

15. It is true that there were times when Mr Nikolovski was not filmed during the movement of the trailer.  The surveillance operative, Mr Kelly, gave evidence that he was standing in a park, had to be discrete and if people passed by, he would stop videoing.  He was also standing under some trees, and as Mr Nikolovski moved, Mr Kelly had to stop videoing to move to another position.  I closely observed the surveillance film, however, and what was visible when Mr Nikolovski was pushing the trailer and I saw that most of the trailer could be seen.  I also saw the weight of the trailer being borne by Mr Nikolovski.  There was other evidence, including Mrs Nikolovski's own evidence, that she was at the time unable to work because of a back injury she had suffered in 2001.  I am not satisfied on the whole of the evidence that Mrs Nikolovski was assisting with the weight of the trailer.   I find that Mr Nikolovski bore most, if not all, of the full weight of the trailer as he pushed it into the garage.

1. None of Mr Nikolovski's activities shown in the surveillance taken on 28 and 29 July 2004 is consistent with the considerable and constant functional disability he reported to the medical practitioners in and around July 2004.  In this 2004 surveillance Mr Nikolovski was dressed in a way which he had said he was unable to dress, that is, in t-shirts.  He used his dominant right hand for most activities including steering his car, with his right arm elevated.  He was seen interacting socially.  He did not guard his neck or right arm, he had no restriction in his neck movements and he did not display pain or discomfort in any of his movements.

The 2005 surveillance

1. Mr Nikolovski was seen by Mr Ecker on 7 October 2004 once again complaining of severe pain and saying he was unable to feel pain or sensation in both his hands.  Mr Ecker was concerned about this, arranging neurological testing, because with that description given by Mr Nikolovski, in Mr Ecker's words 'He shouldn't have been able to do anything … Open his fly, open a fridge, feed himself.  Nothing.'  The neurological testing showed no abnormality.

2. Mr Nikolovski was seen by Dr Rehman on 13 October 2004, when Dr Rehman recorded in his notes 'continues to be in pain still. Can't do any work'.  Between then and 2 June 2005 he saw Dr Rehman again with no change to his pain, recorded by Dr Rehman on 2 June 2005 as 'severe'.

3. On 29 June 2005 Mr Nikolovski returned for a final assessment by Mr Ecker, who wrote a comprehensive report on the same day.  Mr Nikolovski continued to complain of pain in his right upper limb, altered sensation and he complained that his right hand did not work properly.  He was complaining of severe pain in his right shoulder particularly in the region of the trapezius muscle.  He said the pain radiated down his entire right upper extremity and into his hand.  He complained the pain was constantly present, that any activity caused severe pain and that there had been no improvement in his pain.  Mr Ecker in his report dated 29 June 2005 recorded that a hand assessment report once again confirmed a profound loss of sensation in Mr Nikolovski's right hand and upper extremity.

4. Mr Ecker gave evidence at trial that Mr Nikolovski presented on 29 June 2005 as severely disabled with pain.  He was unkempt, unshaven, with his arm hanging independent by his side.  His forearm was supinated with the palm of his hand facing upwards.  He constantly held his right wrist and hand with his left hand.  He could not lift or use his right arm and could not even put his shirt on.  His wife dressed him.  Mr Ecker said that the testing and the medical findings could not explain the severity of his pain or what Mr Ecker described as Mr Nikolovksi's 'profound disability, his inability to do anything with his arm'.

5. Mr Nikolovski had by this time been reviewed by the psychiatrist, Dr de Tissera.  Although Dr de Tissera was not called to give evidence, Mr Nikolovski admitted that he had told Dr de Tissera that he spent his time sitting in the dark and that in August 2005 he had also complained to Dr de Tissera of shaking and sweating, insomnia and depression and that he had talked in whispers.

6. On 19 September 2005 Mr Nikolovski was reviewed by Mr Thrum.  In his report of 22 September 2005 Mr Thrum recorded Mr Nikolovski's complaint of continuing pain.  He told Mr Thrum he had pain above the shoulder, he was unable to sleep on his right side and felt that all movements of his shoulder were restricted.  Mr Thrum referred to the operation by Mr Ecker on 9 March 2004 and recorded that Mr Nikolovski 'advised me he feels he has not changed since '.

7. Surveillance was undertaken of Mr Nikolovski over three days on 25 March 2005, 27 April 2005 and 14 May 2005. 

8. On 25 March 2005 Mr Nikolovski was up early at 7.15 am, dressed in a round-necked t-shirt, sweeping and hosing down the front verandah of his home, using his right arm to bring the broom back and forth.  The sweeping was described in the trial as 'vigorous' and I agree with that description.

9. The filming of that portion of activity stopped at 7.23 am.  Filming recommenced at 7.40 am when Mr Nikolovski could be seen washing windows.  In doing so he lifted his right arm, well above shoulder height, above his head, to reach up to the top of the window.  He did this repeatedly, first with a window cleaning sponge to clean each window, then with a cloth and finally with a blade.  I observed him when closest to camera using window cleaning equipment, at 7.42 am.  He used his right arm.  His left arm was relaxed, hanging by his side.  He moved his right arm up above shoulder height at least five times before crouching down to clean the bottom half of the window.  He then reached up again to the top of the window, this time using a fluid motion, from left to right, to move the window cleaner across the top of the window.  When his arm reached the top of the window it was almost fully elevated.  After using the window cleaner he used a cloth, repeatedly, and then the blade in a similar way to how he had used the window cleaner. There appeared to be no restriction in any of his movements and no evidence of pain throughout.  He then hosed down the veranda.  Filming stopped after this.

10. Filming recommenced at 10.35 am when Mr Nikolovski was again seen with a hose, this time on another verandah at the back of his house.  He held the hose with his right arm and lifted it up above his head to reach areas under the verandah roof.  He turned the hose onto the side of the verandah, again lifting his right arm above his shoulder, with his right hand above head height, to hose the underside of a brick archway.  He then turned to hose the adjacent wall.  He then crossed to the other side of the verandah to hose on that side, again using his right arm to lift the hose up above his head.  He then picked up a broom and lifted it to clean what looked like a fly screen door or doors.  At 10.40 am he picked up the hose again and lifted it above head height to hose a section of wall.  Shortly after this he began cleaning the verandah with a broom, using his right arm repeatedly to move the broom back and forth, pausing only to apply what appeared to be detergent to the head of the broom.  He hosed the areas he had been over with the broom and then started cleaning the glass on a sliding door in this area, both outside and inside.  He used the same method to clean this glass as he had used on the windows he had cleaned earlier that morning.  Again he used his right arm, moving his arm up above shoulder height to reach the top of the door.  Filming stopped at 11.02 am.  At 11.17 am Mr Nikolovski was filmed again outside with the hose.  He turned the hose off at 11.18 am, reaching over with his right arm and turning off the tap with his right hand.  He then used both arms to wind up the hose.

11. The other surveillance film from 27 April and 14 May 2005 is of short duration.  Mr Nikolovski was filmed at 9.56 am on 27 April and approximately 10.00 am on 14 May 2005.  On both days he was wearing a t‑shirt; a round necked t‑shirt on 27 April and a collared t‑shirt on 14 May.  On both days he was driving his car on his own.  On both days I observed he was able to open his car door and get in and out of the car without any apparent restriction.  He walked normally and turned his neck normally.  On 14 May I observed him carrying shopping.  He carried what appeared to be a tin of oil in his right hand and a shopping bag in his left, transferring the oil tin to his left hand before opening his car door with his right.

12. Mr Nikolovksi's explanation of the window cleaning seen on the surveillance film in March 2005 was that with medication he could do it.  Mrs Nikolovksi gave evidence that she wanted her husband to help her to clean the verandah and he refused, saying he had pain in his shoulder, and they argued, but after that argument he came and helped. He took his medication before coming out to help.  After he had helped, she said, he had rested for 2 1/2 hours.

13. The difficulty with the explanation from each of Mr and Mrs Nikolovski is that this is markedly different from the history given and the way Mr Nikolovski presented to the doctors from October 2004 until September 2005.  He told them that he was in constant pain, with pain radiating down his entire right arm and into his hand, with all movements of his shoulder being restricted.  On the description given by Mr Nikolovski to Mr Ecker about the lack of sensation in his right hand and arm, as recorded in October 2004 and which was still present on 29 June 2005, Mr Nikolovski's right hand did not work properly and he should not have been able to do anything - with or without medication or a rest.

14. During the 2005 surveillance Mr Nikolovski could not be seen to hold or guard his right arm, favour his left arm, or act in any way to protect either his neck or right shoulder. None of the activities shown in the 2005 surveillance is consistent with the considerable and constant pain and disability which Mr Nikolovski reported, either to his doctors or at trial.

The December 2007 surveillance

1. Mr Nikolovski was reviewed in February 2006 by a consultant neurologist, Dr Goodheart.  Mr Nikolovski said he was troubled by neck pain on the right which 'could' radiate into the suprascapular region and into the right arm.  He had restriction of neck movement in all directions, and there was some restriction of movement at the shoulder joint.  There was pain over the lateral aspect of the right arm, with constant 'pins and needles' and he also reported a diffuse loss of light touch appreciation in the right arm.  Mr Nikolovski also reported being troubled by daily headaches.

2. When Mr Nikolovski was seen by Dr Rehman on 30 November 2006 Dr Rehman noted 'continues to have terrible pains still in the right shoulder and neck.  Even seat belt hurts … supports right arm while walking etc'. On a review on 3 August 2007 Dr Rehman noted that 'Continues to be the same.  Unable to do any work.  Continues to have right neck and shoulder pain'.  Dr Rehman recorded in his notes on 11 September 2007 that Mr Nikolovski told him he had been doing hydrotherapy but had to stop because of the pain.  Dr Rehman's evidence was that in December 2007 Mr Nikolovski had much pain.

3. Mr Nikolovski was reviewed by Mr Thrum on 14 April 2008.  Mr Thrum gave evidence that on this review Mr Nikolovski complained again of right arm pain, right neck pain, advised he was unable to lift his arm above shoulder level and that the pain woke him at night.  He also advised that he suffered from depression and headaches.  He told Mr Thrum that whilst there was nothing he was definitely unable to do, he had marked difficulty with lifting and working, and that if he worked, he would get pain for several days afterwards.  He was, however, able to drive a car.

4. Dr Tiller recorded in his report dated 22 October 2008 that when he saw Mr Nikolovski he carried his right arm in an abnormal manner with a flexed elbow and he had difficulty with dressing and undressing.

5. Surveillance was undertaken of Mr Nikolovski over several days in December 2007.

6. On 10 December 2007 he was filmed at 10.15 am driving to a destination which we learned at trial was the address where his son was building a house.  After arriving he parked and got out of the car.  He was wearing a round necked t‑shirt.  I observed him walking normally with his arms swinging by his side.  He spoke with a workman on site.  He looked relaxed and did not at any time hold his right arm.  He stood many times with his right hand on his hip.  (Dr Home explained in his evidence that standing with his right hand on his hip requires a good range of internal rotation).   I observed Mr Nikolovski to lift his right arm up above his shoulder in order to gesticulate or point at something at 10.27 am and again, twice in quick succession, at 10.28 am.  He then used his right arm, above shoulder height, to grab at a box in the garage, taking a sheet of plastic out using his left arm.  Shortly afterwards he returned the sheet of plastic to a box, using his right arm, again above shoulder height.  At 10.30 am I saw him talking to the workman next to a ute, with Mr Nikolovski leaning on the ute with his right arm on the bonnet of the ute, again above horizontal.  A short time later he went to his car, opened the boot with both hands and put his right hand on top of the open boot, extending his right arm well above shoulder height, while putting something in the boot with his left hand.  He opened and shut both the driver's and rear passenger door on the right hand side of his car using his right arm, and he did this more than once.  He took out some papers and was seen writing with his right hand on the boot of the car.

7. On 11 December 2007 Mr Nikolovski was filmed at 9.11 am at his car, again wearing a round necked t-shirt.  He walked freely with his arms swinging by his side.  He was filmed at two separate locations opening the car door with his right hand, getting into the car without difficulty and then, looking right and left without any apparent restriction, reversing out of a car parking bay.  At 10.24 am Mr Nikolovski was filmed at the salvage yard where he went to collect doors for his son.  I observed him again to walk freely from his car to the yard, with his arms swinging by his side.  After selecting and measuring two doors, I observed him using both arms to carry the doors, first one and then the other, to his car.  He used both hands to lift the first door, raising it above his right shoulder and carrying it over his head.  I did note his right arm was a bit closer to his side than his left, but he was carrying this door overhead.  He used his right hand to open the boot of his car and in doing so, raised his right arm well above shoulder height.  I observed him later use his right hand to hold the weight of the door whilst his left hand held the boot open.  He then used his right hand to lower the door against the edge of the boot and push the door forward into the boot using his right hand to take most of the weight.  After some adjustments inside the car, he went back to push the door further into the car, again using his right hand.  He then walked back, arms swinging freely, to collect the second door.  He picked up that door with both hands, carrying it at waist height back to his car.  With his left arm holding the boot open, I observed Mr Nikolovski to pick up the door with his right arm only and push this door into the boot.  He then walked back normally, with arms swinging, presumably to pay for the doors.  While walking I saw him reach with his right arm behind his back to take his wallet out of the back pocket of his shorts.  Finding a sales assistant, he walked back with her to the car, and at 10.41 am I saw him pointing using his right arm above shoulder height. Back at the car he lifted the boot with his right arm, again well above the horizontal.  He then got back into his car and reversed out of the car parking bay outside the salvage yard, turning his neck freely to the left and right as he did so.

8. There was evidence at trial about the weight of the doors from both Mr Nikolovski and his son.  Mr Deni Nikolovski estimated that the smaller of the two doors weighed between 6 kg to 8 kg and the larger between 8 kg to 10 kg.

9. On 12 December 2007, filming of Mr Nikolovski commenced very early, at 7.56 am, showing him dressed in a collared t-shirt.  He stood with his right hand on his hip, which he then moved up to waist height.  He was again chatting to workman and he appeared relaxed.  He returned to his car, opening the door with his right arm, getting in and driving away.  Filming recommenced at 8.08 am, back at his son's address.  After walking a short distance he stood to look up, with both hands on his hips.  While talking to a workman or workmen I observed Mr Nikolovski to constantly wave or gesticulate using both arms, often lifting his right arm well above shoulder height.  I saw him lift his right arm in this way, usually to point something out, at 8.10 am, 8.11 am, 8.22 am (more than once), 8.24 am (four times), 8.32 am, 8.33 am and 8.34 am.  He stood with his right hand on his hip more than once.  At one time he walked to his car, opening the right hand side doors with his right arm and bending into the back seat.  When walking to and from his car and around the site his right arm was relaxed and for the most part I noticed he was holding his car keys in his right hand.  Filming on this part of the surveillance stopped at 8.35 am.  Filming recommenced between 9.20 am, and 9.36 am and later between 10.42 am and 11.17 am showing Mr Nikolovski still at the building site and undertaking similar activities – walking, talking, opening and shutting car doors with his right hand, standing with his right hand on his hip at various times and occasionally waving his right arm above shoulder height, often above his head.  At 11.01 am Mr Nikolovski walked over to a work van, put both hands up above his head to reach for the top of the rear door (boot) and then pulled that door down using both arms, using his right hand to push it shut.  Surveillance recommenced at 11.31 am after Mr Nikolovski had driven to a kitchen business in Malaga.  He walked freely, swinging his arms, from where he had parked his car to the front entrance of the building.  He was filmed at 11.56 am standing talking to a person about what appeared to be a set of plans.  Some of the time he had his right hand on his hip.

10. On 13 December 2007 filming of Mr Nikolovski started at 9.35 am.  He was dressed in a round necked t‑shirt.  He was filmed getting into his parked car and reversing it out of a car parking bay, freely moving his neck while doing so and driving away.  He was filmed at two different locations after this, walking normally with his arms swinging freely and reversing his car.  He drove to his son's address and was filmed at 9.50 am walking around the building, going to his car, opening the rear door using his right arm and taking out a folder.  He placed the folder on the boot of his car, using his right arm to hold down pages in that folder, while using a mobile telephone.  He walked away while on the phone, assuming a squatting position for several minutes (from 10.09 am) while talking on the mobile telephone.  I observed him, while squatting, turning his neck to the right to look behind his back, without any apparent restriction.  After standing up, and while still talking on the telephone, Mr Nikolovski lifted his right arm to gesticulate several times, in doing so lifting his arm above head height.

11. All of the 2007 surveillance film, which is of 1 1/2 hours duration, shows Mr Nikolovski to be relaxed and walking freely.  There was no restriction in his neck movement which I could see, in any direction.  He had no difficulty using his right arm or hand, which is inconsistent with his claim of a loss of touch appreciation.  He was able to lift his right arm well above shoulder level, something which Mr Nikolovski claimed he was unable to do.  He did not at any time carry or protect his right arm.  There was no indication of pain. From a lay point of view he appeared to have no physical injury and nothing wrong with his right arm, shoulder or neck.

Medical practitioners' view of the surveillance

1. Mr Nikolovski's general practitioner, Dr Rehman, reviewed the surveillance film before trial.  He first reviewed the 2004 and 2005 material and wrote a report dated 25 March 2010 in which he stated, and confirmed at trial:

   The presentation of Mr Nikolovski is inconsistent with his presentation at my room eg during visits to the clinic, he usually presents supporting his right arm with his left, his neck movements are grossly reduced and painful.  …

   Other inconsistencies noted in the DVD film were as follows:

   1)He did not appear to be in pain during the movement of his right shoulder and neck. 

   2)He did not guard his right arm during various tasks or during walking. 

   3)He preferred to use his right arm during various tasks, which was inconsistent with him being in severe pain, having limitation of movement or significant right arm weakness. 

   4)The degree of lateral rotation of his neck was much more on the videotape than elicited during examination at the rooms.

1. Dr Rehman added in his evidence that from this surveillance film there was no sign of any distress or limitation, Mr Nikolovski was freely swinging his arm, he was not protecting his arm in any way and he was using his right arm as a dominant arm. 

2. When Dr Rehman prepared his report of 25 March 2010 he had not seen the 2007 surveillance film.  He later saw that surveillance.  He agreed that the activities which Mr Nikolovski undertook in December 2007 were inconsistent with the signs and symptoms that Dr Rehman had observed in his rooms.  Dr Rehman agreed that in the 2007 surveillance film Mr Nikolovksi did not exhibit any observable signs of pain or restriction.  Dr Rehman also stated that Mr Nikolovski's shoulder movements all appeared to be consistent with a normal shoulder.  He was never writhing in pain or holding his arm or stopping to press his arm or anything like that.

3. Mr Tony Robinson, an orthopedic surgeon, saw Mr Nikolovski only once, in December 2002, before referring him to Mr Ecker.  Mr Robinson viewed all the surveillance film before trial and his evidence was that, based on what Mr Nikolovski was doing, he did not have a problem with his neck or with his right shoulder.  Mr Robinson agreed in cross‑examination that the surveillance film was 'pretty good footage' showing absence of restriction in the cervical spine and the right shoulder from the periods he observed, from July 2004 onwards.

4. Mr Ecker had not previously seen the surveillance film and he was shown a selection of it during trial – from 29 July 2004 (moving the trailer load of wood), 25 March 2005 (cleaning windows) and 11 December 2007 (carrying the doors).  I observed Mr Ecker's reaction to the surveillance film and I saw that he was very surprised to see the activities which Mr Nikolovski was able to do, as had been filmed.  Mr Ecker acknowledged after watching the footage from 29 July 2004 that the activity shown was inconsistent with the way which Mr Nikolovski had presented to him. 

5. When Mr Ecker watched the surveillance film from 25 March 2005 he stated:

   The findings here are consistent with somebody who's had subacromial impingement or decompression.  They should be able to do this work with ease.  Okay.  But in the context of the way that he presented in my office, so severely disabled with pain, his incapacity, the way that I heard it, this is not compatible with that.  So in terms of subacromial impingement and acromioplasty, don't have a problem with it.  In the terms of correlating it with the way that he presented in my office, it doesn't add up. (ts 758)

   In what I can see, he's moving with good co-ordination.  No restriction and to me that's working extremely well. (ts 759)

   … I see a man who couldn't lift his arm, who couldn't get dressed in my office, functioning in this manner.  The two are irreconcilable.  No more so than an anaesthetic analgesic; in other words, the hand that can't feel at all in the presence of normal nerves.  A hand that has a Jamar profile which is flat, which means he really shouldn't be able to pick up a carton of milk.  Symptoms that don't add up.  It's consistent with everything I've said all along. (ts 760)

   … I will reiterate that this is not the way that he presented in my office on examination.  There is no way he should have been able to do this if - if - and, you know, I can accurately say that just looking at it here.  But, you know, according to the way he described his symptoms, his pain, his impairment, he should not have been able to function this way.  He could not even put his shirt on. (ts 762)

6. When Mr Ecker watched the surveillance film from 2007 he agreed that what Mr Nikolovski was seen to do was not consistent with somebody who has severe pain and no feeling in his hand.  He agreed that the footage did not demonstrate any genuine pain disorder.  He agreed that he could not exclude that Mr Nikolovski had been malingering and agreed that, in fact, it may be a probability.

7. Mr Thrum in his report dated 1 July 2004, when he reviewed Mr Nikolovski following his shoulder operation, noted there were discrepancies between Mr Nikolovski's subjective complaints and objective findings.  Despite these disrepancies Mr Thrum stated that Mr Nikolovski was not fit for his pre‑accident employment and it appeared that his future work capacity had been compromised as a result of the accident.   Mr Thrum advised that this was based on what Mr Nikolovski said he could and could not do.  In a later report of 22 September 2005, Mr Thrum assessed Mr Nikolovski as having a residual disability of 10% of the function of his right shoulder and that he was fit for doing restricted sedentary duties, not involving the use of his right arm above shoulder level.   Mr Thrum explained at trial that this was based largely on the fact that Mr Nikolovski had said he could not do a lot of work.  Mr Thrum reviewed the 2004 and 2005 surveillance film, after which he produced a report dated 5 January 2006.  In this report, after summarizing his observations of the 2004 and 2005 surveillance, Mr Thrum advised he saw no evidence of any restricted movement.  There was an inconsistency between the evidence in the surveillance film and the manner in which Mr Nikolovski had presented at Mr Thrum's office, with restricted movements of both arm and neck.  Mr Thrum could see no reason why Mr Nikolovski should not undertake ordinary day‑to‑day activities given the evidence of no restriction of movement.  Based on the surveillance film, he thought it was highly likely that Mr Nikolovski would be able to return to his normal capacity as a chef.

8. Dr Tiller, who reviewed Mr Nikolovski on 20 October 2008, wrote a report dated 5 November 2008.  Based on Mr Nikolovksi's history that in the accident he had been hit heavily from behind and the description of his symptoms, Dr Tiller was of the view that he was suffering a permanent disability of 10% of the cervical spine and 15% of the right shoulder.  After viewing the 2004 and 2005 surveillance film Dr Tiller wrote a report dated 17 October 2009, noting that Mr Nikolovski's presentation in Dr Tiller's rooms was inconsistent with what was on that surveillance.  Dr Tiller noted that Mr Nikolovski had a normal range of motion of the cervical spine when driving his car, both looking left and right and in reversing, and a 'very satisfactory' range of motion of his right upper limbs when driving and cleaning windows, reaching well above shoulder level to clean the upper parts.  Dr Tiller observed that Mr Nikolovski did not demonstrate any difficulties and did not cease what he was doing as if he was having severe pain.  Based on the 2004 and 2005 surveillance film Dr Tiller's view was Mr Nikolovski had not sustained any permanent disability in regard to his right upper limb nor in regard to his cervical spine and had much more function in regard to his neck and right shoulder than Dr Tiller was led to believe when he examined Mr Nikolovksi in October 2008.  Dr Tiller suggested that Mr Nikolovski had no disablement in the area of his cervical spine and, accepting that he may have had some minor changes in the right shoulder before the accident, that he may have a 3% loss of use of the right upper arm due to the impingement.

9. After seeing the December 2007 surveillance film when Mr Nikolovksi lifted, carried and loaded the doors in his car, Dr Tiller in a report date 23 July 2010 stated that he was no longer of the view that the range of motion of the right shoulder and neck as Mr Nikolovski presented during examination, was in fact genuine.  Dr Tiller, a very experienced orthopaedic surgeon who has practiced for over forty years, was of the view that Mr Nikolovski was maximising or exaggerating his symptoms for the purpose of financial gain or for other reasons.  In a further report dated 13 August 2010 Dr Tiller stated that he was not satisfied with Mr Nikolovski's credibility and the reliability of the history of his presentation of symptoms and restrictions.  Dr Tiller considered that Mr Nikolovski had been deliberately misleading and had exaggerated and misrepresented his symptoms for the benefit of financial or secondary gain.

10. Dr Home, after reviewing Mr Nikolovski on 29 September 2004 and based on his history, symptoms and presentation, considered that Mr Nikolovski had suffered a soft tissue injury to the cervical spine and right shoulder.  Dr Home revised this opinion after reviewing the surveillance film.

11. After reviewing the 2004 surveillance film, Dr Home produced a report dated 2 November 2004.  In this report Dr Home observed in the surveillance film of 28 July 2004 that Mr Nikolovski had a normal range of cervical rotation.  Dr Home specifically noted the use of Mr Nikolovski's right hand over the top of the steering wheel and the fact that there was no evidence of restricted use of the right hand when steering his car.  At trial Dr Home explained the significance of this relevant to Mr Nikolovski's claimed shoulder pain and disability (ts 872):

    If you have pain in your rotator cuff, or subacromial bursa, any of those structures, if you - if you bring your arm into flexion and then over the top in internal rotation, you're bringing the tendon up under the bone and it's painful.  So, I mean, I'd see something like - it varies from year to year, but something like 200 cases of shoulder pain a year.  I take a history from all of these people.  It's almost 99.9 per cent of people with an active rotator cuff lesion will not do that.  They'll do push/pull steering, or they'll put their hand on the base of the wheel or they'll put their hand on their lap and steer with the other hand.  So they may use their hand at the base of the wheel but they never bring their hand over the top while it's a - an active problem, because it's too painful, so I was quite interested in that finding.

12. As to the surveillance film of 29 July 2004, when Mr Nikolovksi had pushed the trailer, Dr Home noted that Mr Nikolovski had advised that he had difficulty lifting weights of more than 2 kg to 3 kg with his right hand and declared that he used his left hand to undertake activities such as brushing his teeth, performing toileting and feeding himself.  Dr Home recorded that the surveillance evidence 'is that he is using his right arm to lift and propel a laden trailer containing wood of an equivalent weight well in excess of 2 kg.'

13. Dr Home reviewed the 2007 surveillance film at a later time, producing another report dated 24 May 2010.  Dr Home reported that this surveillance further confirmed an inconsistency between Mr Nikolovski's subjective clinical presentation and Dr Home's clinical observations on 24 July 2009.  Dr Home noted that when driving his car Mr Nikolovski again used his right hand over the top of the steering wheel.  On 13 December, he used his right arm to violently gesticulate, raising his arm quite high up, at least 150 degrees on the basis of Dr Home's observation of the surveillance.  While Mr Nikolovski had told Mr Home that his right shoulder pain was exacerbated even with activities such as walking and that he could not lift objects weighing in excess of 2 kg with his right hand, on the surveillance film when lifting the two doors he was lifting a moderately heavy weight and demonstrating that he could move his right arm through a full range of motion, exceeding the range of motion that he had demonstrated in a clinical setting.  Assuming that Mr Nikolovski had nothing wrong with his left arm at the time, Dr Home observed at trial that 'it would be very unusual for a patient who's suffering from constant pain and a severe disability in the right shoulder to be using their right arm to load a moderately heavy object, to lift it above shoulder height and to push it into a boot of a car'.  Although Dr Home agreed it was a brief surveillance, Mr Nikolovski had shown range of motion greater than as he had described and demonstrated to Dr Home.  In Dr Home's view there was no evidence that Mr Nikolovski was suffering from restriction of neck movements or disability in relation to his ability to bear weight through his right arm. 

14. Dr Home finally reviewed the 2005 surveillance in July 2010, writing a separate report about this on 23 July 2010, which he also confirmed at trial.  In this report Dr Home observed that this further surveillance footage raised significant questions about the veracity of Mr Nikolovski's statements in relation to his level of disability.  This further period of surveillance was, Dr Home stated, entirely inconsistent with his clinical presentation of severe pain and severe pain‑related disability.  The activities were inconsistent with Mr Nikolovski suffering pain related disability at the right shoulder as he had reported.  Dr Home concluded that Mr Nikolovski's subjective presentation in the clinical setting was unreliable.  Having reviewed the surveillance evidence in totality, Dr Home expressed the view that Mr Nikolovski was exaggerating his symptoms for the benefit of financial gain and making statements in relation to the extent of his functional disability that are not truthful.     

15. Dr Goodheart saw Mr Nikolovski on two occasions, on 16 February 2006 and 5 August 2009.  Dr Goodheart's opinion in two reports dated 9 March 2006 and 5 August 2009 was that Mr Nikolovski had sustained soft tissues injuries to his neck and shoulder, and had gone on to develop a chronic pain syndrome, deferring to a psychiatrist on whether that included a component of abnormal illness behaviour.  (At trial Dr Goodheart advised he would defer to either a psychiatrist or a pain specialist on that issue).  After reviewing the surveillance film in 2010 Dr Goodheart wrote a report of 18 May 2010 in which he noted that 'Mr Nikolovski's description of his range of movement and use of the right arm does not correlate with the video evidence that is presented'.  Dr Goodheart questioned the extent of the soft tissue injury to the cervical spine, given that Mr Nikolovski seemed to be able to use his right arm for common daytime tasks.  Dr Goodheart later viewed the surveillance film with Mr Nikolovski and accepted Mr Nikolovksi's explanations for the activities seen on the surveillance film.  Dr Goodheart stated that 'We must believe our patient.  It's always difficult to establish whether what we've been told is the truth or not ...'

16. Following Mr Nikolovski's most recent review by Dr Harper (which was at the request of Mr Nikolovski's solicitors), in his report dated 6 July 2010 Dr Harper also reported on his review of the 2004 and 2005 surveillance film.  Dr Harper recorded that in the films he saw Mr Nikolovski driving, getting in and out of his car, walking, swinging his right arm while walking, cleaning windows above head level involving full elevation of the right shoulder, repetitive sweeping, pushing a loaded trailer with the left hand while he lifted the trailer attachment with the right hand.  No restrictions in any of these activities were observed.  Dr Harper gave evidence that he observed Mr Nikolovski's shoulders, but specifically his right shoulder, to be put through what appeared to be an unrestricted range of movement.  Dr Harper did not see the limitation of movement that was manifest on physical examination.  Dr Harper stated in his report, confirmed at trial:

    I am unable to adequately explain medically the nature and extent of the disability which he has presented … I am unable to provide any physical medical diagnosis which would explain his apparently normal functional capacity as shown on the DVDs of 2004 and 2005 and link his current disability to a medical event two years prior to the DVDs.  Whether or not his current disability is explainable in terms of a psychiatric condition caused by the motor vehicle accident is outside my field of expertise.

17. The only witness called with psychiatric or psychological expertise was the psychologist, Dr Bill Douglas, who saw Mr Nikolovski very soon after the surveillance taken in July 2004.  Dr Douglas explained that when providing psychological treatment he was almost entirely dependent on the patient's reporting of symptoms.  Dr Douglas gave evidence that when he saw Mr Nikolovski in a clinical setting, he always exhibited considerable pain behaviour by cradling his right elbow in his left hand and always seemed to find it very difficult to move his arm.  Based on Mr Nikolovski's clinical presentation and described symptoms and complaints, Dr Douglas accepted that Mr Nikolovski had a chronic pain problem in his right shoulder and neck, and diagnosed major depression.  After viewing the surveillance film in 2010 however, Dr Douglas reported in two reports dated 18 February 2010 and 8 June 2010, and confirmed at trial, that he could no longer be confident that his diagnosis was correct.  Dr Douglas said that what he observed in the surveillance film was inconsistent with what he had observed in the consulting room.  In relation to the 2005 surveillance film of Mr Nikolovski cleaning the windows of his house, Dr Douglas in cross‑examination observed that 'patients that, in my experience, are as depressed as I had considered him to be don't generally have the level of energy to be able to do what he was doing on that morning of cleaning.'

18. Dr Douglas also addressed the four possibilities suggested by Mr Ecker which could explain Mr Nikolovski's presentation.  Dr Douglas' evidence, which I accept, was that if Mr Nikolovski had been suffering from a possible maladaptive illness behaviour response (also known as abnormal illness behaviour), a depressive illness with somatisation, or a histrionic behaviour with a conversion reaction, one would still have expected to have seen considerable guarding and pain behaviour from Mr Nikolovski on the surveillance film.  This was because in those cases, although the pain and the disability may not actually be related to real physical injury, the pain is created psychologically so that there is nevertheless a genuinely perceived problem and disability for the patient which causes suffering.  Dr Douglas considered that in Mr Nikolovski's case there was a real possibility that he had maximized his symptoms with the intent to malinger and maximize his disability. 

19. The evidence from Dr Douglas was taken de bene esse, in the week before the commencement of the trial.  Dr Douglas was cross-examined on his evidence of the possibility of Mr Nikolovski malingering, but still maintained his views and confirmed that 'malingering seemed the most likely explanation'.  At the time of this cross-examination the indication was that Mr Nikolovski would be calling his treating psychiatrist, Dr de Tissera.  Indeed, specific questions based on Dr de Tissera's reports were put to Dr Douglas.  Dr de Tissera was not called and Mr Nikolovski later abandoned his claim for any depression arising from the accident. 

Findings relevant to Mr Nikolovski's credibility

1. Mr Nikolovski's general practitioner, Dr Rehman, put it very well when he said '… you have to accept either the patient's version or the DVD version.  One of them can be correct.  Both of them can't be'. 

2. The surveillance film, while not depicting dramatic physical activities such as overhead lifting or repetitive work, showed that Mr Nikolovski was able to undertake activities that are inconsistent with a person suffering from neck or rotator cuff pain.  I find that the surveillance film is reliable evidence of Mr Nikolovski's physical capabilities and shows a greater capacity to engage in physical activities than Mr Nikolovski portrayed when seen by the medical practitioners and as he also stated in his evidence to this court.  It is, in my view, impossible to reconcile the level of activity depicted in the surveillance film with the level of pain and disability which Mr Nikolovski described and presented to the doctors who examined him in and around each period of surveillance.  There is no evidence that his levels of pain and restriction or perception of pain can be explained by any psychological or psychiatric factor. 

1. On 30 September 2004 Dr Home, based on the subjective presentation of Mr Nikolovski and his reported severe pain and marked restriction of movement in his dominant right upper limb, advised that Mr Nikolovski was not fit for full‑time work as a chef.  In regard to his cervical spine Dr Home noted the inconsistencies in clinical findings and the absence of radiological evidence of any injury-related pathology.  After seeing the 2004 surveillance, Dr Home advised in his report of 2 November 2004 that he had reviewed his assessment of work capacity.  Dr Home was of the view that it would be reasonable for Mr Nikolovski to return to work as a chef.  That assessment also took into account Mr Nikolovski's shoulder.  In his subsequent report dated 23 July 2010 Dr Home stated that the requirements of work as a chef did not exceed those activities which Mr Nikolovski had demonstrated in the 2004 surveillance and that the activities seen in that surveillance (demonstrating a normal range of neck motion, being able to steer a motor vehicle with his hands on the top of the steering wheel, and pushing a laden trailer containing wood), were not consistent with a patient suffering severe disability related to right shoulder pain. 

2. Dr Tiller in his report dated 5 November 2008 considered Mr Nikolovski was fit to return to work of a sedentary nature, but could not do work which involved heavy lifting using his right arm above 90 degrees abduction.  This was based on Mr Nikolovksi's history of the accident as being a heavy hit from behind, and his description of his pain and disability.  After viewing the 2004 and 2005 surveillance film Dr Tiller revised his opinion of Mr Nikolovski's capacity, stating that he was fit to work in his pre-accident occupation as a chef.

3. Dr Goodheart expressed opinions on Mr Nikolovski's capacity for work in his reports of 9 March 2006 and 5 August 2009.  Dr Goodheart's opinion on 9 March 2006 was that Mr Nikolovski was partially incapacitated for physical activity and that, given Mr Nikolovski's degree of depression and chronic pain syndrome, he would be unable to return to his pre-accident employment as a cook.  As Mr Nikolovski has not proved any depression or chronic pain syndrome, I must disregard Dr Goodheart's opinion.  In his report of 5 August 2009, Dr Goodheart advised that he considered Mr Nikolovski to be totally and permanently incapacitated in relation to his pre-accident occupation as a commercial cook.  Dr Goodheart specifically stated, however, that he based this opinion on the ongoing symptoms which Mr Nikolovski had described to him.  Given my findings relating to Mr Nikolovski's credibility and the unreliability of his reported symptoms I place little weight on this opinion. 

4. Dr Harper was specifically asked by the solicitors for Mr Nikolovski to provide his opinion on Mr Nikolovski's work capacity.  Dr Harper only saw Mr Nikolovski on one occasion in July 2010, almost eight years after the accident.  Having regard to the 2004 and 2005 surveillance film, Dr Harper advised in his report of 6 July 2010 that:

   I am unable to confidently evaluate Mr Nikolovski's work capacity as I am unable to diagnose his condition sufficiently to explain the clinical evidence.  The impression I have on viewing the DVDs is that he is unrestricted with regard to work capacity.  The radiographic findings of the right shoulder consistently identify physical pathology which could limit work capacity to the extent that he would be unable to work fulltime as a chef but which may not preclude fulltime restricted work.  Current symptoms indicate significant partial work incapacity.  Findings on physical examination strongly indicate the presence of disabling factors which are above and beyond the presence of physical injury.  Given the complexity, variability and contradictory nature of the evidence I do not have an adequately sound base on which to given an opinion regarding current work capacity'.  [italics my emphasis].

5. Of the expert evidence concerning Mr Nikolovski's ability to undertake work as a chef, I prefer Dr Home's evidence as an experienced occupational physician and for the reasons I have already set out at [212]. Dr Harper is also an experienced occupational physician, however, he has been disadvantaged by being asked to review Mr Nikolovski many years after the accident and because of this and the other matters set out in his report, was unable to make a satisfactory occupational medical diagnosis.

6. I find that even with the pre-existing pathology in his shoulder, Mr Nikolovski had the capacity to work full-time, as a chef, from at the latest 28 July 2004. 

7. Even if I had accepted that the shoulder problems were accident caused or related, the evidence was that the surgery which Mr Ecker performed in March 2004 was successful.  According to the evidence from each of Mr Ecker, Mr Thrum and Dr Home, Mr Nikolovski was expected to have fully recovered from that surgery within six months or thereabouts, that is, by September 2004.  While each of Mr Ecker, Dr Harper and Dr Home advised that Mr Nikolovski would be restricted to activities which did not involve the use of his right arm above shoulder height, this restriction is, as they explained, because of the pathology and demonstrated degenerative condition in his right shoulder.  Dr Home explained at trial that even if Mr Nikolovski was asymptomatic, you would be cautious with the pathology in his shoulder.  Mr Ecker's evidence was that someone of Mr Nikolovski's age and with this degree of degenerative change in their shoulder would rarely, if ever, return to heavy lifting and physical work with the arms at or above shoulder height.  In addition, looking at the degeneration in his shoulder and his age, there was a high probability he would have become symptomatic at some stage in the future, particularly if he had to do physical work lifting above shoulder height.

8. In relation to Mr Nikolovski's cervical spine injury, I find that Mr Nikolovski experienced problems with his neck for a time, but these were minor.  In terms of his physical capacity, I find that Mr Nikolovski had the capacity, from 21 October 2002, to work at least part-time and he did so work until he lost his job with Steers Carvery.  I find that from April 2003, the difficulties which Mr Nikolovski had with carrying out major physical activities arose principally from the problems he said he was having with his shoulder.  Based on the findings I have previously made when discussing the surveillance film and also taking into account the medical opinions of Mr Thrum, Dr Home, Dr Tiller and Dr Harper, I find that by 28 July 2004, at the latest, but probably before that time, Mr Nikolovski no longer suffered from symptoms related to his cervical spine and had a normal range of cervical rotation.  Any impairment to his earning capacity after that time is not related to the accident. 

9. Mr Nikolovski has therefore not satisfied me that he has lost all his pre‑accident earning capacity as a result of the accident. 

10. Mr Nikolovski has also not shown that the condition of his cervical spine (or, indeed, his shoulder) prevented him from finding alternative employment after losing his job at Steer's Carvery on 12 May 2003, or that he has been unable to find alternative employment.  Mr Nikolovski gave no evidence that he sought alternative employment after losing his job at Steer's Carvery in 2003.  While he did undergo surgery on his shoulder, that surgery took place on 9 March 2004 and Mr Ecker advised that he should be fit for a full-time modified job (that is with no heavy lifting) within six weeks of that surgery.  The only evidence that Mr Nikolovski gave about seeking work was that in 2006 or 2007 he had tried a couple of places and asked if they had a light duty job available.  One was an Italian restaurant next to the Macedonian Club and the other was another Italian restaurant in Osborne Park.  Neither restaurant had a position for him.

Past loss of earning capacity

1. Using net weekly rates with CPI increases as agreed by the parties, set out in the Plaintiff's Substituted Particulars of Claim, I allow three weeks loss of earning capacity on a full time basis, which is the time Mr Nikolovski had off work until his return to work on 21 October 2002, which totals $1,500 net. 

2. For the period from 21 October 2002 until 12 May 2003 Mr Nikolovski worked on a part‑time basis, and I allow damages for this period at $7,482 (29 weeks at $258 net per week, being the difference between Mr Nikolovski's full-time pre-accident earnings and his part-time earnings). 

3. For the period after 12 May 2003 I consider it appropriate to award a global amount, for the following reasons.  First, any award for damages for this period must take into account the probability that the injury to his cervical spine had resolved well before the end of July 2004.  Secondly, as I have found, from April 2003 the difficulties which Mr Nikolovski was having with carrying out major physical activities related principally to his shoulder and his stated problems in using that shoulder.  Thirdly, Mr Nikolovksi lost his job at Steers Carvery on 12 May 2003 for reasons unrelated to the accident.  Fourthly, even taking into account his shoulder problems, after losing his job at Steers Carvery in May 2003 Mr Nikolovski did retain a capacity for work.  Fifthly, as I have found, Mr Nikolovski has not proved that the condition of his cervical spine (or, indeed, his shoulder) prevented him from finding alternative employment after 12 May 2003 or that he was unable to find alternative employment.  Finally, Mr Nikolovski underwent surgery for his shoulder on 9 March 2004.  Any incapacity to work between 9 March and the end of July 2004, in my view, is unrelated to the accident. 

4. Given the matters I have set out above, it is not possible for me to precisely calculate the damages to be awarded for the loss of earning capacity relating to Mr Nikolovski's cervical spine from 12 May 2003.  The assessment of damages for loss of earning capacity is not an exact science, however, and does not have to involve a mathematical calculation.  It is governed by considerations of practical common sense in the context of the facts of the particular case:  Insurance Commission of Western Australia v Weatherall[2007] WASCA 264 [241]. I must do my best to place a value on loss of earning capacity.

5. I believe a global but modest sum should be awarded for loss of earning capacity during this period.  In the Plaintiff's Substituted Particulars of Claim, Mr Nikolovski's loss of earning capacity (which includes both the neck and shoulder problems) on the basis of a partial incapacity between 12 May 2003 to 8 March 2004 is $21,883 net.  In the circumstances I consider a global amount of $7,500 to be appropriate for loss of earning capacity relating solely to the soft tissue injury to his cervical spine from 12 May 2003.

6. The total award for past loss is therefore $16,482.

Past loss of superannuation

1. Based on gross weekly amounts also set out in the Plaintiff's Substituted Particulars of Claim, which figures are agreed, I calculate superannuation at the rate of 9% for the periods up to 12 May 2003:

   28.09.02- 21.10.02  $ 255.15

   21.10.02 – 12.05.03  $ 939.60

   Total  $1,194.75

2. The parties have agreed that the appropriate deduction for contingencies for superannuation benefits, following Jongen v CSR Ltd (1992) Aust Torts Reports 81‑192 should be 15%. Accordingly the total I allow for superannuation for these two periods is $1,015.53.

3. For the period 12 May 2003 to 08 March 2004 I allow a global amount for superannuation of $1,000.

4. The total amount I allow for past superannuation is therefore $2,015.53, which I would round up to $2,016.

Interest on past loss of earnings and superannuation

1. The past loss of earnings of $16,482 and past loss of superannuation of $2,016 total $18,498.  Interest on that at 3% for 7 years and 4 months (7.33 years) is $4,068.

Future loss of earning capacity and superannuation

1. I find that Mr Nikolovski has suffered no loss of future earning capacity as a result of any injury he received in the accident.  Any loss of earning capacity from which he currently may suffer, relates not to the injuries which he suffered in the accident, but to the pre-existing degenerative changes in his right shoulder.

Special damages

1. Mr Nikolovski's special damages claim, as particularised in the Substituted Particulars of Claim includes medication from 18 October 2005, a number of items related to his right shoulder, which is not accident related, and medication for his alleged depression, which claim was not pursued.

2. Mr Nikolovski is entitled to some of the cost of the medication he received while he suffered some pain as a result of the soft tissue injury to his cervical spine.  Dr Rehman's medical records and his evidence confirms that Mr Nikolovski was prescribed Voltaren, Tramal, Panadol, Deptran and Pariet until the end of 2002. From January 2003 he was prescribed Mobic, Panadol and Tramal.  As I have found, his neck symptoms had resolved, at the very latest, by July 2004 and probably before then.  Some of this medication was also prescribed for depression.  Based on the cost of medication set out in the Substituted Particulars of Claim and doing the best I can, I allow $250 for medication.

3. A claim is made for travel costs from his home to his pharmacy and from his home to his general practitioner, Dr Rehman.  The agreed cost for this travel as set out in the Substituted Particulars of Claim is $2.28 per week.  Taking into account these costs and the findings I have made concerning the resolution of Mr Nikolovski's neck symptoms, I allow $150 for travel.

4. There is a further claim for travel costs to and from the physiotherapist.  There are two physiotherapists which Mr Nikolovski attended and it is unclear from the information provided to me which physiotherapist he attended over what period.  Dr Rehman's medical records and evidence confirmed that Mr Nikolovski was referred to and did attend a physiotherapist soon after the accident and continued to attend physiotherapy until July 2004.  On the other evidence in this trial some of the physiotherapy related to a need after surgery to his shoulder, which was of course on 9 March 2004.  On 5 July 2004 there is an entry in Dr Rehman's medical records which states that Mr Nikolovksi should 'continue physiotherapy once a week till gym approved'.  There is no further reference to physiotherapy after that date, but references to Mr Nikolovski undertaking exercise. On this evidence it appears that the physiotherapy attended all relates to pre‑July 2004.  How much of this relates to his cervical spine and how much to his shoulder is unclear.  The total amount claimed for both physiotherapists, is a total of $560.16.  I allow one half of this amount, namely the sum of $280.

5. The total of the special damages I have allowed, namely medication, travel expenses and physiotherapy, is $680.  Interest on that amount at $149 (3% for 7.33 years), gives a total for special damages of $829.

Gratuitous services

1. A claim has been made for past gratuitous services on an average of 1 hour per week at the agreed rate of $20 per hour from the date of the accident up to and including trial.

2. A defendant is liable to pay damages under this head if there is a proven need for these services and that need arises out of an accident caused inability of the plaintiff to provide such services for himself.  Damages are to compensate the plaintiff for his inability to look after himself, not his inability to care for the household: Newman v Nugent (1992) 12 WAR 119; CSR Ltd  v Eddy (2005) 226 CLR 1.

3. There was little evidence led, medical or otherwise, as to the services which Mr Nikolovski needed or were provided to him because he was unable to care for himself.  His only evidence was that before the accident he was undertaking 'all maintenance, cutting grass and cleaning house, windows, everything'.  He gave evidence that after the accident he hired someone to mow his lawn and that house maintenance was carried out by his wife and sometimes his daughter (who then lived with Mr Nikolovski and his wife) would help.  Mrs Nikolovski did not give evidence corroborating this and, as I have already observed, she confirmed she had suffered her own back injury in 2001.  Mr Nikolovski's daughter was not called to give evidence.  I am not satisfied that hiring someone to mow the lawn was an accident caused or related need, and I again refer to my findings as to Mr Nikolovski's credibility.  The claimed extent of Mr Nikolovski's need is not supported by the medical and other evidence.

4. I would be prepared to allow gratuitous services for the first few weeks after the accident until Mr Nikolovski's return to work, on the basis of the injury to his cervical spine, however, there are restrictions on the damages which can be awarded contained in s 3D(6) of the Motor Vehicle (Third Party Insurance) Act 1943. If the amount of damages that may be awarded is Amount D, which as at 1 July 2010 was $6,000, or less, no damages are to be awarded for the value of the services provided. The amount of damages for gratuitous services which I would allow is considerably less than $6,000 and therefore no damages under this head can be awarded.

5. I make no allowance for future gratuitous and paid services.  There is no medical evidence of any need for future assistance and any such need which might arise in the future is not accident related.

Future medical expenses

1. For the same reason I have made no allowance for future gratuitous and paid services, I make no allowance for future medical expenses.

Non-pecuniary loss

1. The provisions of s 3C of the Motor Vehicle (Third Party Insurance) Act govern the amount of damages to be awarded for non‑pecuniary loss. This component of damages includes pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm. Section 3C(2) of the Motor Vehicle (Third Party Insurance) Act provides that the amount of damages to be awarded for non‑pecuniary loss is to be a proportion, determined according to the severity of the non-pecuniary loss, of the maximum amount that may be awarded. That maximum amount, Amount A, as from 1 July 2010 is $337,000.

2. That amount may be awarded only in a most extreme case. The approach and methodology required to be taken by the Court when applying s 3C of the Act is set out in Den Hoedt v Barwick [2006] WASCA 196 [5], [95] and [96].

3. There was a period where Mr Nikolovski suffered some pain and inconvenience from his cervical spine injury, but that did not extend beyond July 2004 and, as I have found, this injury had probably resolved well before then.  Mr Nikolovski's evidence of the extent of his pain and other symptoms such as headaches is, for the reasons I have already given, unreliable. Other than pain, Mr Nikolovski's main complaints were depression, an inability to sleep, irritability and intolerance of noise.  There is no claim for depression, since that was abandoned.  I am not satisfied that his other complaints are related to any injury suffered in the accident.  In the circumstances, the injury to his cervical spine and resulting disabilities from that injury were neither significant nor long lasting and I find they had a limited effect on his enjoyment of life. 

4. In these circumstances I consider Mr Nikolovski's general damages to be 5% of a most extreme case and, thus, a reasonable award for non‑pecuniary loss is $16,850 (5% of $337,000).

5. As this figure is less than Amount B as set out in s 3C of the Motor Vehicle (Third Party Insurance) Act, $17,000, pursuant to s 3C(4) I am unable to award any damages for non-pecuniary loss.

Conclusion

1. The accident on 28 September 2002 was a low speed and low impact collision, causing a soft tissue cervical spine injury to Mr Nikolovski.  The total of the award of damages to which he is entitled for this injury is $25,411, calculated as follows:

   Past loss of earnings  $18,498.00

   Past loss of superannuation  $2,016.00

   Interest on past loss of earnings and superannuation          $4,068.00

   Special damages  $829.00

   TOTAL:     $25,411.00

1. I will hear from the parties as to costs.

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION: NIKOLOVSKI -v- HOLLOWAY [2011] WADC 11 (S)

CORAM:   DAVIS DCJ

HEARD:   12, 16 - 25 & 27 AUGUST 2010,

ON THE PAPERS

DELIVERED          :   28 JANUARY 2011

SUPPLEMENTARY

DECISION              :11 MARCH 2011

FILE NO/S:   CIV 157 of 2006

BETWEEN:   NIKOLA NIKOLOVSKI

Plaintiff

AND

KERRY RAE HOLLOWAY
Defendant

Catchwords:

Assessment of general damages - Slip rule - Amendment to judgment sum - Costs orders

Legislation:

Rules of the Supreme Court 1971, O 21 r 10

Result:

Judgment for the plaintiff amended to $19,327
Costs orders made by consent

Representation:

Counsel:

Plaintiff:     Dr P R MacMillan

Defendant:     Mr D M G Burton

Solicitors:

Plaintiff:     S C Nigam & Co

Defendant:     SRB Legal

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

Monaco v Arnedo Pty Ltd (1994) 13 WAR 522

Nikolovski v Holloway [2011] WADC 11

1. DAVIS DCJ:  On 28 January 2011 I delivered my reasons for decision in this matter Nikolovski v Holloway [2011] WADC 11 ('my reasons').  I made an order that there be judgment for the plaintiff in the sum of $25,411 and made directions for the filing of affidavits and submissions on the question of costs.

2. In February 2011 the defendant filed a motion for orders amending the judgment pursuant to O 21 r 10 of the Rules of the Supreme Court 1971.  An amendment to the judgment was sought as a result of two matters.

3. First, the parties drew to my attention that in the penultimate paragraph of my reasons [268] I had made an error of calculation, adding the amount I had allowed for past loss of superannuation twice, both in the figure for past loss of earnings and in the next figure for past loss of superannuation.  The total award of the damages should have been the sum of $23,395, calculated as follows:

   Past loss of earnings   $16,482.00

   Past loss of superannuation   $2,016.00

   Interest on past loss of earnings and superannuation               $4,068.00

   Special damages   $829.00

   TOTAL :$23,395.00

4. Secondly, Mr Nikolovski had received, on a without prejudice basis, an advance payment for past loss of earnings.  Details of this were set out in an affidavit of Benjamin David Hansberry sworn 11 February 2011.  Accordingly, because of the advance made to Mr Nikolovski, he was not entitled to any allowance for interest on past loss of earnings and superannuation.  The parties agreed that judgment for the plaintiff should accordingly be reduced by the amount I had allowed for interest, $4,068.  The amount for which judgment should be entered for the plaintiff accordingly should be reduced to a sum of $19,327.

5. I am satisfied that the judgment sum awarded to Mr Nikolovski should be corrected to avoid injustice: Monaco v Arnedo Pty Ltd (1994) 13 WAR 522, 524.

6. The parties have agreed costs.

7. In accordance with a minute of consent orders signed by the solicitors for both parties dated 8 February 2011, I amend the judgment of 28 January 2011 and make orders for costs as follows:

   1.Judgment be entered for the plaintiff against the defendant for the sum of $19,327.

   2.The defendant do pay the plaintiff's costs up to 6 May 2009, such costs to be taxed.

   3.The plaintiff do pay the defendant's costs from 7 May 2009, such costs to be taxed.