Peter Incandela v Bozo Bobanovic
[2013] ACTSC 213
•21 October 2013
PETER INCANDELA v BOZO BOBANOVIC
[2013] ACTSC 213(21 October 2013)
NEGLIGENCE – personal injury – motor vehicle collision – inconsistencies in evidence – plaintiff’s credit damaged in cross-examination – other evidence supporting conclusion that collision occurred and that driver of defendant’s vehicle was negligent – Court satisfied that plaintiff’s case on liability made out
DAMAGES – personal injury – motor vehicle collision – injury to cervical spine – plaintiff undergoing surgical procedures – much of plaintiff’s evidence not accepted – damages assessed to reflect finding of fact – no issue of principle
Kuhl v Zurich Financial Services Australia Ltd & Anor (2011) 243 CLR 361
No. SC 362 of 2007
Judge: Higgins CJ
Supreme Court of the ACT
Date: 21 October 2013
IN THE SUPREME COURT OF THE )
) No. SC 362 of 2007
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: PETER INCANDELA
Plaintiff
AND: BOZO BOBANOVIC
Defendant
ORDER
Judge: Higgins CJ
Date: 21 October 2013
Place: Canberra
THE COURT ORDERS THAT:
There be judgment for the plaintiff for $222,500.00
The plaintiff, Mr Incandela, was, allegedly, involved in a motor vehicle accident on 2 March 2006. The plaintiff asserted that he was driving in a southerly direction along the Barton Highway near Hall in the ACT. At the intersection with Wallaroo Road he turned right with a view to proceeding along that road. He was then living at a property belonging to Ms Cathy Trimboli.
As he was turning, another vehicle, registered in the name of the defendant, was being driven by an unknown person, apparently without the knowledge or permission of the defendant. That vehicle was a 1985 blue Ford sedan while the vehicle owned by the plaintiff was a 2002 Daihatsu Terios. The blue Ford was in a slip lane that joined Wallaroo Road apparently proposing to turn left into Wallaroo Road.
The plaintiff expected that the vehicle would give way to him so that he could complete his right turn. However, it did not and collided with the passenger side of his vehicle.
The plaintiff claimed injury as a result. The defence pleaded:
(a)There was no genuine “accident”: any “accident” was staged with a view to provide circumstances for the plaintiff to make a claim for damages;
(b)In the alternative, even if there was an “accident” the forces involved were so slight as not to cause any injury to the plaintiff;
(c)In any event, the plaintiff was not injured;
(d)The plaintiff has manufactured or exaggerated injuries, disabilities and consequential damage claims for the purpose of acquiring damages to which he is not entitled.
This amounted to a fundamental challenge to the plaintiff’s case.
Was there an accident?
There was no dispute concerning certain facts. First, that the defendant’s vehicle was, on 2 March 2006, stolen (i.e taken and used without the owner’s knowledge or consent). It was reported as stolen from the Canberra Institute of Technology (‘CIT’) carpark at Reid, ACT. It was then undamaged. The report was received by police at 5.00 pm and allocated a job number.
The vehicle was found by police at 6:45 pm. However, it was seen in the same position earlier, about 4:50 pm, by Ms Julie Harrold. That is, outside the Hall cemetery on Gooromon Ponds Road. She had earlier, at about 4:10 pm, seen the same vehicle being driven in an erratic manner at excessive speed in the area of Wallaroo Road. She observed major front end damage on each occasion. She observed that the driver was a male person, late 40s, shaggy brown hair to the shoulders and dirty looking.
Another local resident, Ms Fiona Platzer made a similar observation at about 4:10 pm on Gooromon Ponds Road. Her description of the driver corroborated Ms Harrold’s observations.
Constable Monaghan, one of the two officers who attended at Hall Cemetery, created a job number for the stolen vehicle. It had been allocated an earlier job number following the owner’s report. That is of some significance by reason of the existence of a card, filled out by Constable Monaghan and, it appears, given to the plaintiff. It refers to the stolen motor vehicle and records the job number generated by Constable Monaghan at about 6:45 pm on 2 March 2006.
Sergeant Dennis Gellatley was, at that date, in charge of Gungahlin Police Station to which Constable Monaghan was then attached. He has since left the AFP.
He gave evidence that if a person attended the station to report an accident there should be a record kept of that. There was a form of accident report in use. It was possible, if the matter was assessed as minor, that the person reporting involvement in a collision would be given the form to fill out and return. A follow-up would be more likely.
It was likely that, if the plaintiff had attended to report a collision between his Terios and the Ford sedan, such a card would be handed to him. It is also apparent that such a report must have referred to the registration number of the stolen vehicle. Hence the association with the discovery of the stolen vehicle on Gooromon Ponds Road.
There is nothing on the card (ex 9) to indicate the date it was issued. It is, however, unlikely that the plaintiff would know of the stolen vehicle unless he saw it on 2 March 2006.
The plaintiff’s account of the collision was not entirely consistent in its details.
His Terios, he said, was, before the accident, only slightly damaged on the passenger side rear. Indeed the photographs of it post-accident shows a slight indentation and scrape on the vehicle on the rear passenger side corner. The major damage, however, was on that side involving both doors.
The plaintiff had been at a property on Spring Range Road and had need of a tool which was at Ms Trimboli’s property. He drove to the Barton Highway, then turned right into Wallaroo Road. As he did so he observed a vehicle approaching in the slip lane. He presumed it would stop but, too late, realised it was not doing so. He first tried to stop, then to accelerate away but the vehicles collided. He said:
It felt like I went on two wheels and I thought I was going to roll over and also I was going to the other side of the road so I turned left and then right and I found myself against the railing.
He then proceeded to the end of the guard rail and parked off the road. The other vehicle parked in front of him but then took off. He phoned a call direct number and was put through to the Belconnen Police Station.
He drove around for a little time thereafter but did not see the other vehicle. It was a blue Ford Falcon. He then went home. He had been told, he said, to report the incident to Gungahlin Police Station. The latter was then staffed only until 7.00 pm at night. He was suffering no ill effects at the time he arrived home. When Ms Trimboli arrived he was feeling neck pain and “pins and needles” in the left arm. He decided to go the Calvary Hospital.
He is recorded as arriving there at 6:19 pm on 2 March 2006. He is further recorded as stating:
MVC [Motor vehicle collision] – at 1400 hrs. Pt [patient] stationary in own vehicle at time. Presents c/o [ complaints of] cervical neck pain, increased on palpation, and altered sensation in left arm c-spine precautions in place. To acute.
The clinical notes attached refer to the accident as “low speed”. He was, however, administered morphine. He was discharged to home with a collar. There was a CT of the cervical spine. It revealed some abnormalities between C 3/4 to C 6/7 levels but no obvious fracture or focal disalignment. The hospital records show he was discharged at 9:30 pm.
There were records of telephone calls from the plaintiff’s telephone. The first was at 2:45 pm on 2 March 2006, to Ms Trimboli. The second at 2:54 pm was a call direct number. That is the call the plaintiff says was diverted to Belconnen Police Station. There were two calls from the home number to police at 5:03 pm and 5:05 pm.
It is not clear what the content of the latter two calls was.
The plaintiff did say that, having decided to go to the hospital, driven by Ms Trimboli, they proceeded down Wallaroo Rd in the direction of the Hall General Cemetery. Outside the entrance to the cemetery, they observed the stolen vehicle. The plaintiff recognised it as the vehicle he had collided with. He noted the registration number and proceeded to Gungahlin Police Station to report the matter.
Whilst former Constable Monaghan was not called, Senior Constable Edgar, her partner that day, was called. He had also observed the stolen vehicle outside the cemetary. There was a female bus driver who attended whilst police were in attendance. There was some uncertainty as to when the vehicle was towed away. It was towed away early the next day. Constable Edgar did not notice any scuff, skid or debris marks in the area. Of course, the place where the stolen vehicle was located is about 500 metres from the Barton Highway so that such marks, if at the intersection with the slip lane, would not necessarily be noticed.
An investigator from NRMA did, on 20 June 2006, interview Constable Monaghan.
She stated that she did recall some person come to the Gungahlin Police station and complain that a Ford Falcon had collided with the rear of his truck. It was not reported directly to her. The time is vague. She had assumed that the Falcon had a collision with a tree from the damage to it she saw. It is not likely that the person concerned was the plaintiff.
She did notice, closer to the intersection, perhaps 50-60 metres from the junction of the Barton Highway and Wallaroo Road, some broken glass. There were skid marks in the vicinity but not where the glass was. The latter were about 300 metres from the Barton Highway. It is not apparent that those skid marks related to the collision the plaintiff complained of, though the glass could well be related.
Ms Harrold also had a memory of seeing some debris on the side of the roadway towards the intersection at Wallaroo Road and the Barton Highway. It was, she estimated, 100 to 150 metres from the highway “not very far down from the highway”. That could be related to the alleged collision.
A further factor is that the photograph of the two vehicles indicated some blue paint on the Terios within the damaged area and some white paint on the front part of the stolen blue Ford. Of course, no tests were conducted to match the paints in question.
There were some photographs of the guard rail beyond the intersection consistent with a light impact but, of course, that does not necessarily connect to this alleged incident.
There were reports from traffic engineers Dr George Rechnitzer for the plaintiff and Mr William Keramidas for the defendant. The two were not in dispute as to the basic facts, so far as the physical evidence allowed.
Mr Keramidas concluded that the two vehicles examined had collided with a speed at impact of 15-20 Km/h, primarily at the front offside corner of the Ford Falcon. The Terios, he assessed, was near-stationary at the point of impact. It bespeaks a secondary impact, however, at the rear bumper bar area. He thought the impact to have been about 35 degrees off perpendicular.
In particular, the task was complicated by the absence of any contemporary examination of the presumed accident scene.
It is, therefore, possible to conclude that the two vehicles in fact collided though not necessarily at the presumed accident location.
I note that Mr Keramidis assumed a version of events that the plaintiff had not given: that is, that the plaintiff’s vehicle was pushed into a ditch in the collision or that it was forced into the guard rail. The first is simply not stated; the second was a result of the plaintiff’s own actions in steering the vehicle not the force of the collision. The impact was, in any event, slight so far as the guard rail was concerned. It is accepted that the plaintiff’s vehicle would be rocked by the collision.
Dr Rechnitzer noted that the distance from Barton Highway to the Hall cemetery entrance was about 350 metres. The presumed point of impact was approximately 20 metres from the western side of the highway. He noted that, given the report of a rear-end collision with a truck, not all the damage to the Ford could be attributed to a collision with the Terios.
He assumed, given the likely course of each vehicle, that the angle of impact would have been 25 degrees off the parallel.
The further assumption (contrary to that of Mr Feeney, another expert, that the Ford was travelling faster than the Terios) does seem to me to be inherently more likely. It was, after all, a stolen vehicle and was later seen speeding around the area.
The other expert, Mr Johnson, has, as Dr Rechnitzer points out, made assumptions quite inconsistent with the physical evidence including photographs.
In brief, there is little difference between Mr Kerimidis and Dr Rechnitzer and I found the latter’s analysis quite persuasive. The only real difference is angle of impact. Given Dr Rechnitzer took account of the other unrelated collision, it seems to me that his analysis of that point is to be preferred.
The other assumption in dispute is whether the Terios was stationary at impact. I agree that is not likely, though it is consistent, that the plaintiff both braked and then accelerated as the impact approached.
I am left with a conclusion that the two vehicles in question did collide on the day and at about the time the plaintiff claims. I consider it more likely than not that it occurred where the plaintiff claimed that it did. I accept that, in all the circumstances, the Ford was travelling faster than the Terios, as Dr Rechnitzer concluded. That impact probably rocked the Terios temporarily onto two wheels.
In an attempt to regain control, I accept that the plaintiff did lightly impact the guard rail. I have no doubt that the other vehicle fled the scene and was later seen speeding in the area with accident damage as later observed, evident to all who saw it.
In coming to these conclusions I place no reliance on the plaintiff’s account, or, indeed, on that of Ms Trimboli.
Nevertheless, the physical evidence and that of unrelated witnesses convinces me that the accident did take place as alleged and resulted in an injury to the plaintiff’s body.
It was not suggested that there was any collusion between the car thief and the plaintiff. Indeed, such a collusion is so improbable as to be fanciful.
There is, nevertheless, the question of the reporting of that collision to the police. No records have been found, either at Belconnen or Gungahlin police station, of any report of the subject collision whether from the plaintiff or otherwise. The job number on exhibit 9 could not have been generated until after the plaintiff had presented at Calvary Hospital. The police station at Gungahlin was not staffed after he left the hospital until the morning of 3 March 2006.
It follows that his and Ms Trimboli’s account of attending at the Police Station on the day of the collision is inaccurate. Nevertheless, I am persuaded that the accident did happen for reasons as outlined above.
Was there an injury?
There is no doubt that the plaintiff attended Calvary Hospital on 2 March 2006. He did not suffer, or claim to have suffered, any immediate effect from the collision. However, on attendance at the Calvary Hospital he was apparently in great pain, sufficient to be prescribed two doses of morphine. The examination of his cervical spine revealed abnormalities which, as the medical opinion accepts, could have been rendered symptomatic by the force of the collision.
It must also be added to those circumstances the fact that the plaintiff had not long after, not one, but two surgical procedures on his cervical spine.
It is not credible that the plaintiff suffered no injury as a result of the collision. I am persuaded that he did. It was as Dr Watson on 10 April 2006 reported, a posterior discovertebral protusion both marked and symmetric. It was compressing the spinal cord with abnormal cord signal. These were objective clinical signs consistent with this diagnosis that did not depend on the plaintiff’s veracity.
On 9 November 2006, the plaintiff underwent a C5-C6 anterior cervical decompression and fusion. Symptoms were reported as improved (report of Dr Watson of 10 July 2007).
He also reported only doing light lifting around his property. The veracity of that claim is subject to serious doubt. Nevertheless, Dr Watson considered that his return to earthmoving operations was unlikely to be possible.
A further fusion operation was later conducted at C 6/7. That was undertaken, again by Dr Fuller, on 29 April 2008. As a result, the plaintiff told Dr Watson that his left upper limb radicular symptoms had improved but neck pain continued.
Dr Watson further noted (reports 28 May 2009):
Mr Incandela indicated that he is not undertaking any work now. He has not worked since 2007. I do not envisage that this man could undertake any form of work now or in the future.
This “indication” by the plaintiff was false and, indeed, a deliberate lie. That matter and its consequences be examined further later in these reasons.
On 6 August 2009 Dr Iain Stewart, a radiologist, reported post-surgical changes but no other apparent pathology.
On 10 August 2009 Dr Stewart made a more detailed report to Dr Fuller. He concluded that there were some possible disc bulge problems at C 3/4 and C 4/5.
On 26 November 2010 it was reported that –
There is fragmentation and sclerosis at the involving the anterior arch of C1 and odontoid process of C2 ... Prominent anterior osteophytes are seen at C 2/3 and C 4/5. These changes all appear of long standing.
On 30 November 2010, Dr Ganeshaw, a radiologist, reported on the planitiff’s spine. There were a number of deficits including a focal spine change within the cervical cord at the C6 vertebral level. That was “consistent with myelomalacia/glosis presumably related to the previous trauma”.
On 18 January 2011 Dr Andrews, a consultant neurologist, was able to report that all nerve conduction tests on the plaintiff were quite normal. There was no evidence of any cause for reported left hand symptoms.
On 8 March 2011 Dr Ashish Dirvan, a spinal specialist, reported that the plaintiff’s spine appeared “gravely compromised”. However, he also reported that the plaintiff said he was working as a chef again. He was concerned at the plaintiff’s reported dependence on Endone and Valium for pain relief.
Dr Leon Le Leu was asked to do a medico legal assessment of the plaintiff and did so on 25 February 2011.
The plaintiff reported to him that he was not then working but had worked since the accident. He claimed some problem with his left hand but could not really explain what it was. It appeared to relate to lack of strength to an extent and of coordination. The minor weakness in the left arm and leg was all that remained after the fusion operation. There was, Dr Le Leu considered, a 74% loss of function of the cervical spine and 10% loss in the left arm and 10% loss in the left leg or at above the knee.
He noted the evidence of prior degeneration in the cervical spine. It was not certain that would have become symptomatic but he accepted that the accident had apparently precipitated the symptoms and, probably, made them worse than they might otherwise have become. He noted the plaintiff was qualified in his capacity for physical labour and felt that he was excluded from the moderate to high end of that labour market. Cooking was not excluded but ride-on mowing would be. With cooking, lifting heavy pots should be avoided. Light cleaning work was open but using motorised scrubbers, back pack vacuum cleaners or heavy buckets should be avoided.
There is no need to rely on the plaintiff’s veracity to conclude that the collision with the defendant’s vehicle, clearly being driven, not only illegally, but negligently if not recklessly, caused an injury to the plaintiff’s cervical spine rendering it sufficiently symptomatic to require the two fusion operations.
I turn to the defendant’s medical evidence.
Dr Silver, an occupational physician, noted that the accident appeared to have caused a soft tissue injury exacerbating pre-existing degenerative disease and disc bulging.
It did not prevent the plaintiff from being physically active.
With that I agree.
Another report from Dr Robert Kaplan, forensic psychiatrist, was dated 22 August 2007. It noted a denial by the plaintiff that he had returned to work, contradicted, however, by other comments.
On 26 May 2008, Dr Silver had been shown a surveillance video demonstrating “a range of activities” which belied any apparent physical restrictions.
A further video, showing activity between 1 June and 28 July 2008, reported on 23 September 2009, confirmed that impression.
Dr Silver concluded that there was no psychiatric problem but rather exaggeration by the plaintiff of his claimed disabilities.
Dr John Talbot, orthopaedic surgeon, saw the plaintiff on 14 September 2007. He did observe that the symptoms complained of were consistent with the radiological findings. He accepted that the plaintiff was incapacitated for work.
On 30 October 2007, further material was provided to Dr Talbot. It was Dr Kaplan’s report. It elicited no change in Dr Talbot’s opinion. On 7 May 2008, surveillance footage was provided. It did not provide much further information save that it showed that the plaintiff was moving easily without sign of disability. Further footage was provided of the plaintiff’s activities between 1 June 2008 and 28 July 2008. This showed the plaintiff engaging in commercial cleaning activities. Dr Talbot reported on 18 September 2009 that this footage clearly displayed a capacity for work and demonstrated no need for ongoing care and domestic assistance. The marked contrast in those presentations led Dr Talbot to the view that the plaintiff had been untruthful about his capacity for work.
That did not deny that the plaintiff had some “soft neurological signs” and marked abnormalities affecting the cervical spine. It simply meant that the resultant disabilities were much less than he claimed.
Dr David Ruttenberg, an occupational physician, reviewed the relevant material and examined the plaintiff on 18 February 2008 and 15 July 2008, reporting on 12 August 2008. Dr Ruttenberg accepted that the motor vehicle accident of 2 March 2006 exacerbated cervical spondylosis. He accepted that the plaintiff had cord myelomalacia and required spinal fusion. There was some residual mild weakness and altered sensation affecting the left upper limbs in a C5/6 nerve distribution. He considered the plaintiff partially unfit for work:
he would not manage in environments that would require him to perform repetitive gripping tasks using the left upper limb, perform lifting and carrying, particularly where there is a need to lift and carry overhead, where there is exposure to whole body vibration, and where there is a need to perform significant manually demanding work tasks.
Otherwise, he concluded, the plaintiff was fully fit for full-time work. The plaintiff’s drug intake, he felt, was unnecessary, even counter-productive.
On 1 October 2009, Dr Ruttenberg was given the videos of March 2007 and 1 June to 28 July 2008. They demonstrated no apparent restrictions due to pain. It was “in stark contrast” to the plaintiff’s presentation on examination. It left Dr Ruttenberg with the opinion that the plaintiff had made a complete recovery. The presentation had, obviously, been a pretence.
Dr Ross Mills, an occupational physician, was of a similar mind. His reports were dated 29 September 2009 and 15 December 2009. In the first report there was a history of the plaintiff being off work for 2½ to 3 years. For the previous twelve months he had worked as a cook but was “burned” after spilling a pot of boiling cream. Dr Mills did accept that after two neck fusions, there were some restrictions similar to those enumerated by Dr Ruttenberg which ought to be observed by the plaintiff. A further report of 12 March 2013 followed the surveillance material having been provided. That material, in his opinion, revealed a man without significant restrictions in activity, though he would, in view of his objective physical conditions, still place on him a lifting restriction of 10kg.
Dr Leonard Lee, a consultant physician, reported on 14 October 2009. The plaintiff complained of limitations of movement and pain. He could not exclude exaggeration and could not say if the plaintiff was unfit for work. To round off the picture Dr Colin Andrews conducted a nerve conduction study on 26 November 2009. No residual nerve entrapment was detected.
To these medical reports should be added the reports of Dr Fuller, neurosurgeon. He recorded the plaintiff’s complaints following the car accident and considered, after examination, that disc arthoplasty was indicated (report to Dr Watson, 30 April 2006). As at 13 September 2006, he found hyper-reflexia involving left upper and lower limb. There was paraesthesia bilaterally in the lower limbs. There were objective signs of disc pathology not dependant on the plaintiff’s veracity. On 25 October 2006 examination confirmed spinal cord compression at the C 5-6 levels with an area of myelomacia. Surgery was agreed though Dr Fuller did not expect improvement rather stabilisation as a result of it.
On 21 March 2007, Dr Fuller noted that the plaintiff had reported substantial improvement but complained of paraesthesia affecting the hands, particularly the left, and pain across the shoulders. That was, Dr Fuller stated, a common post-operative effect.
On 31 May 2007, Dr Fuller reported that the plaintiff told him he (the plaintiff) had been doing “some work”. He was “chasing a cow”. He experienced some sharp shooting shocks in the left arm and leg. They resolved.
A report of 29 August 2007 noted continuing similar symptoms to those referred to on 21 March 2007. An MRI noted disc protrusion at C 6-7. A disc decompression was arranged. On 29 April 2008, that occurred. The plaintiff on 26 June 2008 was reported to be symptom-free apart from neck pain related to the surgery. Neck pain was reported as ongoing as at 27 August 2008. As at 13 August 2009 there was no observable evidence of cord compression.
On 3 April 2010, it was reported that the plaintiff was complaining of cervical and forearm pain.
He was reviewed again on 13 December 2010 where he reported an injury following a fall on or about 10 December 2010. That may have exacerbated his spinal symptoms.
It is, however, apparent that the fall was not related to the motor vehicle accident on 2 March 2006.
There was further medical evidence following the plaintiff’s oral testimony. It is convenient first to refer to that evidence.
The plaintiff’s account of his disabilities
As I have noted the first and second neck operations do seem to me to be sequelae of the motor vehicle accident. They resulted from a relatively moderate trauma to a defective cervical spine.
Before the first operation but after the accident the plaintiff set up his mowing business to run on its own, that is, relying on employees. He continued with his cleaning work with the aid of his son.
After the first surgery, he said, he remained off work for about four months. However, about three months after the surgery, he fell off a stack of hay bales. He did not experience a worsening of symptoms, though he did get checked out for any injury. None was reported.
He did not, into 2007, bid for further mowing contracts as a result of the accident. He did carry on the cleaning work, however, but with assistance.
He acknowledged improvement after the second operation on 29 April 2008, but some variable pain continued. There had, he said, been no further change in his condition since the period of four months after the second surgery when the pain was strong he would take Endone. He ceased both activity with Clear View Industries operations and cleaning for Spotless.
Thereafter, however, he did register a business name, being “Dago’s Traditional Homemade Pasta”. It was registered on 25 March 2009. The proprietors were recorded as Alessandro D’Ambrosio and the plaintiff. The plaintiff had difficulty preparing the pasta dishes, he said, because of lack of coordination of the left hand. It was also weaker. He could not balance or guide pots as before. He referred to an incident spilling the pot of cream referred to in the medical evidence.
After that, he said, he had an argument with Alex, as Mr D’Ambrosio was called, and decided to end his role in the business and sell it. He did work, he said, but only to demonstrate the business to show a potential buyer. He was thereafter “not working at all”. He was put on a disability pension.
Cross-examination then followed.
It appeared that the plaintiff had applied for the disability pension about twelve months before. Documents suggested that it was about May 2011 that the pension was granted.
He appeared to have been advised, when CV Industries (Aust) Pty Ltd was incorporated, not to be named as a director. That company was intended to take some large contracts then in contemplation. The plaintiff was so advised, it seems, because of his criminal history. Ms Trimboli and Mr Tony Le Mesurier were named as directors.
The latter was then employed by the ACT Government but was, the plaintiff said, about to take a redundancy package.
He was then taken to the issue of cleaning work done for Berkeley Challenge/Spotless.
After the first operation, he said, Ms Trimboli and his son did the cleaning work but the wage was paid to him. He did agree, however, with Mr Watson SC that he was then going to work for Berkeley Challenge/Spotless on a daily basis. First, up to the first operation, then, after recuperation, he resumed that work, though he was vague as to whether he attended regularly.
He agreed, also, that, after the second surgery, he resumed his employment with Berkeley Challenge, at a different site but on a daily basis. He also acknowledged that the months of recuperation suggested by his doctor had not in fact been required. He returned to the cleaning work within a couple of weeks after the operation, though he was vague as to the actual times.
Before the registration of the business name of “Dagos”, requested 25 March 2009, he had taken over “Kaleen Takeaway” – a pizza shop. He was planning to develop the shop into a ready made pasta business, that is packaged takeaway meals. The shop was open from 4.00 or 5.00 pm to around 9.00 pm. He ran the shop and prepared and cooked the pizzas with the help of one full-time and one part-time employee. There were other Italian pasta dishes on offer as well. He also prepared those. Later Chinese food was added when a Chinese chef was engaged. He then entered into a partnership with Alex D’Ambrosio to prepare pre-cooked pasta meals. The production was to occur at premises owned by Mr D’Ambrosio in Mitchell. The latter purchased a Chinese-manufactured machine for the purpose of packaging those meals. The plaintiff claimed to have received only small amounts until the business eventually was sold off, though he claimed to have got nothing from the sale. Whether he did or not, of course, is not relevant per se. The question is whether and, if so to what extent, the failure of the business was caused or contributed to by the plaintiff’s claimed disabilities.
The plaintiff did claim that, whilst he was working at the Kaleen business, he was not working for Berkeley Challenge. He further denied that he was still operating the Kaleen pizza shop on a full-time basis as late as a couple of months before he started on the disability pension. He acknowledged that he had, ancillary to the Kaleen business, run a canteen at the Watson TAFE and a stall at the flea market at Kingston. He sold the Watson business, he said, for $10,000.00.
He agreed that he had prepared the dishes to be served in these businesses and had a refrigerated van to assist in transporting them. He then contradicted his previous answer concerning Berkeley Challenge, saying he kept one job there because he enjoyed the company and the location in the city.
He operated the pizza shop from around 3.00 pm to 9:30 pm or later. Two or three days per week he would work at Watson for about three hours. There was also the cleaning contract with Berkeley Challenge.
He claimed never to have checked his tax returns prepared by Mr Peter Irving his accountant. It appears that no income or expense for the above businesses appeared in relevant tax returns.
It is, at least, surprising that no such records were created. Mr Irving gave evidence and I was satisfied that he was an honest and competent accountant. If the plaintiff had given him the documentation I am sure he would have reflected in it the returns he prepared.
I have to agree with the suggestion Mr Watson put, that the anomaly is explained by the desire of the plaintiff not to contradict the fiction that he had not worked since the motor vehicle accident. This also has an effect upon the documentation prepared by Macquarie Reporting Service (‘MRS’) who assessed the plaintiff’s claim for economic loss.
Notwithstanding the plaintiff’s claim to have provided all the details of his work and earnings to Mr Davis of MRS, the latter’s report assumes no earnings or work since the accident - curiously, the plaintiff had an average taxable income before the accident of $25,000 per annum but Mr Davis was asked to assume $84,000 per annum with a capacity of $110,000 per annum.
The plaintiff claimed not to have noticed that discrepancy. Frankly, I was left with the strong impression that the plaintiff was being deliberately evasive and at times frankly untruthful.
It did seem that for the future he considered CV Industries (Australia) Pty Ltd would gain lucrative contracts and then employ him and his team under the business name Clearview Horticultural to do the work. That made sense though it appears that the company never got to that stage.
The company, if successful, would have contracted with Cityscape Services, an agency of the ACT Government. Mr Le Mesurier then a contract officer with Cityscape was to be a 1/3 shareholder of CV Industries. Whilst this appeared to be a clear conflict of interest for Mr Le Mesurier, there is nothing before me to indicate he otherwise behaved inappropriately though, clearly, suspicion would be raised. The plaintiff acknowledged that, after Mr Le Mesurier left the Department of Urban Services, Clear View got no further contracts. The plaintiff was aware that the conflict of interest had been viewed adversely by the Department.
Again, however, it does not appear that Mr Le Mesurier was himself shut out of ongoing horticultural work with the Department. It is of interest that he resigned from CV Industries on 28 February 2006.
At the same time, it appears that the plaintiff had managed to insure himself for $2000 per week by way of disability insurance before the accident which was activated following it. There was no evidence that the benefit was fraudulently obtained but it does seem surprising that it was paid although the plaintiff continued to work, being apparently disabled at least completely only in the stages of recuperation from his neck operations.
Indeed, Mr Watson SC put to him, before showing the video, that within a few weeks of the second surgery he had been fit for full-time work. Though disagreeing with that, the plaintiff claimed that medication which he took made him “fit do anything” [sic].
On 1 June 2008 he was shown with Ms Trimboli, he wearing hi-vis work clothes. He agreed that indicated they had a cleaning job but could not recall it. The second surgery had been on 29 April 2008.
On 15 July 2008, he was filmed going to a cleaning job, he acknowledged, which he attended all day. The employer, he said, was “Patrick”. That is a reference to “Patrick’s Cleaning Service”. He said he was merely “helping out Cathy” (Ms Trimboli).
He was seen again on 24 July 2008 attending for work as a cleaner. He was, he admitted, at least at some time, about which he was vague, receiving over $500 per week, possibly $750 per week. It was his contention also that the Berkeley Challenge job “swapped hands” to Ms Trimboli.
It did seem that he stopped the cleaning work for Patrick and took up the Kaleen business. It further seems that he was fully capable of working. He did somewhat concede that saying
... I am capable of doing anything and everything. I’ve got a ball and chain which is medication, and that’s what’s holding me back.
On 31 October 2009, film was shot of the plaintiff at the Kaleen shop. The sign was “Dago and Caterina’s”. Further images of those premises showed the plaintiff working in the shop.
The plaintiff did acknowledge that he had had a pre-existing lower back disc problem. That, of course, was not an injury consequential upon the motor vehicle accident.
Further film on 11 February 2011 related to the premises at Mitchell which were intended to be used for the packaged meals business. However, the plaintiff claimed he could not get involved in that business.
Because I have got this ball and chain and I cannot break it to do that
This appears to be a complaint of neck stiffness, and then a headache which will turn into a migraine if he does not take Endone.
The plaintiff, however, acknowledged that he had, for the purposes of his claim, represented to many doctors that he had not worked since the accident. That, it is clear, was a lie. He acknowledged a number of such statements and that they were untrue. He also so instructed his solicitors who passed that false information on to the accountants preparing a report on his financial losses. His explanation for those untruths was manifestly unconvincing
... I didn’t intentionally try to lie to get money. I was sick and all I know is that at some stages I tried to go to work. I got my stages I don’t know what stages. I tried to go back to the workforce and I wasn’t successful. Then I tried to buy my own business. I don’t know the dates I’m getting – my mind is all fried in dates. I do not know what date to what date, what doctor or whatever.
The position could not have been more clearly acknowledged. The plaintiff claimed not to have been intentionally lying but that statement itself, he acknowledged, was, to his knowledge, untrue.
It was also the case that he bought cattle for fattening and sale, (17/2/11) though he claimed to have sold all his stock in 2003, after the bushfires.
On 17 February 2011, three months before being awarded a disability pension, the plaintiff is shown working at the Kaleen takeaway. He claimed he was just “waiting for Chris” who had agreed to buy the business.
He was doing so again the next day.
Andrei Novitski had worked with the plaintiff before the accident. He was a plant operator. The plaintiff, he said, was very “hands on”. He was told there had been a motor vehicle accident, he said, after which the plaintiff had been different. He seemed hurt, taking medication and was in a ‘slowed down state’.
He had not worked for the plaintiff since, at the latest, 2007. He ceased to work then because there were no more contracts. After that he helped the plaintiff on the farm from time to time. He later became aware of the Kaleen business. He seemed to have little knowledge of the plaintiff’s real capacity for work.
Mr Alessandro D’Ambrosio was called for the plaintiff. He had known him and Ms Trimboli for a number of years. He was aware of the plaintiff doing lawnmowing for the government. The plaintiff had seemed fit and healthy. Then he found out there had been an accident. The plaintiff had a neck injury and an operation. The plaintiff was then, he said, “more puffy in the face” and complained of not being able to do anything any more. His business collapsed. Then he went do to cleaning. Then after a month and a half, the plaintiff said he could not do that anymore.
Mr D’Ambrosio then found out about the business in Kaleen. It had, he was told, been going a month or two. He discussed developing it further with the plaintiff and Ms Trimboli. He agreed to put in money. There was then a further outlet in Watson. The plaintiff, he insisted, did only the “light things”. Some days the plaintiff was good, some days “full of pain”. He referred to an occasion when, at Kaleen, the plaintiff dropped a pot saying “the hands have collapse [sic]”.
Mr D’Ambrosio then thought, he said, the business could not continue “because he couldn’t work”. This was clearly a dismal picture of the plaintiff’s work capacity.
Under cross-examination, he recalled an Asian chef, Wai Yip. The business, he said did not return a profit, though he did not know if the plaintiff received any drawings. He claimed to have spent $400,000 on the business, but for no return. He acknowledged that he paid for the pasta packing machine. He was still paying for it as the plaintiff had nothing and could not work. He conceded, however, that sometimes the plaintiff was cooking.
Notwithstanding this, the plaintiff was advertising for staff, including a butcher, Italian chef, delivery driver and a shop assistant. Mr D’Ambrosio denied that he knew anything of the plaintiff’s cleaning activities or farm activities.
I am satisfied that Mr D’Ambrosio was doing his best to minimise the plaintiff’s working capacity. I do not accept that he actually observed the plaintiff suffering any diminution in his work capacity. He, of course, was unaware of the concessions the plaintiff had made in his own evidence.
Dr Timothy Watson was the plaintiff’s general practitioner. He had been shown the surveillance tapes. He had, as at March 2006, following the accident, assessed the plaintiff as in considerable pain. The pathology observed resulted in arm and leg symptoms. He prescribed Endone as a result. The plaintiff, he said, would not, as he then presented, be capable of heavy work. He acknowledged that there was pre-existing spondylosis but the trauma could render it symptomatic. It need not have been very significant trauma to have that effect. That having occurred and been treated by Dr Fuller, the disc below became affected and was also operated upon by Dr Fuller. Endone, he agreed, was not to be used if operating machinery or driving. It would not be recommended for a chef. It could lead to over-confidence. Dropping a pot and getting burns would be consistent with that.
He would need a consultation three-monthly and continued medication, preferably Cymbalta or Duloxetine, depending on his means. They are not on the Pharmaceutical Benefits Scheme (‘PBS’). He should be monitored for spinal deterioration and mental state. He was entrenched with chronic pain and could not work as a chef.
In cross-examination, Dr Watson agreed he had certified the plaintiff as unfit for work from the accident only up to 4 April 2008. He had assumed he was not working. He had not been informed by the plaintiff that he had in fact been undertaking paid employment with Berkeley Challenge after 2 March 2006 and up to 29 April 2008. He had first mentioned some cleaning work for reward in 2009. Dr Watson was unclear about the nature and extent of it otherwise. In 2009 the plaintiff did refer to opening a cafe. However, he also complained that the work was triggering migraines and adversely affecting his health generally.
Dr Watson was not aware, however, of the rigorous regime that the plaintiff was, on his evidence to the court, in fact undertaking.
Ms Pamela McCann had taken up employment at the Kaleen takeaway. She was, it seems, given the task of keeping records for the business. That expanded to the serving of customers. Her recollection was that the plaintiff had no duties because “he was not well”. He would hold his neck from time to time and complained about his left hand. He sliced his finger on one occasion. He was often unreliable and sometimes dishevelled. She attributed this to his physical condition. The plaintiff took painkillers, apparently Endone. The business ended at the end of 2008. She did recall, she said, an incident with a pot, apparently the pot-dropping incident referred to by the plaintiff. She referred to a food stall at the Kingston Bus Depot Markets. It ceased to operate after a few months. She asserted that the plaintiff did not engage in physical work in connection with it. The purpose was to sell the packaged meals which were produced as samples, it seems, for Aldi, in the hope of ongoing business.
She agreed that she did not know how many of the pre-packaged meals were prepared by the plaintiff. The number of meals prepared for the Kingston Markets would, she agreed, number in the hundreds. Early to mid 2010, the packaging machine arrived for the trial run for Aldi.
In re-examination, Ms McCann volunteered that the evidence that she worked four hours daily was not correct. She worked about six hours but only wanted to be paid for four. That inconsistency added to concerns as to the veracity of the witness’ evidence more generally insofar as it sought to portray the plaintiff as seriously disabled.
The person who engaged the plaintiff at the Watson TAFE was Mr Timothy Scorgie. He was aware that the plaintiff operated the canteen up until December 2010. He was told the plaintiff had had a lawnmowing business but, due to his motor vehicle accident, could not do that work any more. He observed that the plaintiff appeared restricted in his neck movements. He appeared at times to be in pain and restricted as to what he could lift. Sometimes the plaintiff came in to operate the business, sometimes not. He would sometimes stay the day and sometimes not. If it was a bad day he would remark on taking painkillers. He would complain that with lifting pots the left arm was weak and would pinch his neck.
‘Cathy’ (a reference to Ms Trimboli) was there most days and would stay to operate the canteen.
This presented a picture of a man struggling with considerable physical difficulty.
However, it appeared under cross-examination that the plaintiff had not mentioned to Mr Scorgie the business he ran at Kaleen or the food stall at the Kingston Markets. He did not mention the cleaning job he was also undertaking. Nor, for what it mattered, his operations at the farming properties.
Mr Scorgie had seen packaged meals but had been unaware that the plaintiff had prepared them.
The plaintiff had on occasions, said to him that he was going home to bed because of the pain. Mr Scorgie was unaware that he was going home to open the pizza shop.
He did see the plaintiff at Watson working and preparing pizzas, kneading dough, preparing coffee and cooking food for the canteen.
I do bear in mind that the proceedings were already on foot and I would not be surprised if the plaintiff was not storing up some evidence to support his claim. He certainly did not present Mr Scorgie with the picture that had emerged from his cross-examination by Mr Watson SC.
Mr Lino Nascimento was next. He had been employed by Berkeley Challenge/Spotless, as a manager. The plaintiff had applied for work in about 2000 and was so employed. He had worked at bus interchange locations in Civic. He was quite satisfactory. Mr Nascimento also employed Ms Trimboli. The plaintiff last worked for Berkeley according to his records, in 2005. The plaintiff terminated that employment because of the demands of his lawnmowing business. Ms Trimboli continued up until 2009. It does seem that after 2005, the plaintiff continued the bus interchange cleaning but not for Berkeley Challenge.
Mr Kevin Taylor was a neighbour of Ms Trimboli and, hence, of the plaintiff. He observed the plaintiff to have been an active worker. After a time he appeared not to be doing the work as before. The plaintiff complained of headaches, neck pain and upper back pain. It appeared to him that the plaintiff was worse after the operation. However, he did become aware that, after the operation, the plaintiff had acquired a shop at Kaleen. He was unaware of the plaintiff’s other activities at Watson, at Kingston or for Patrick’s Capital Service.
Clearly the plaintiff presented to Mr Taylor quite differently from his presentation on the surveillance videos. I do consider it likely that the plaintiff did present as disabled to Mr Taylor but I do not believe that he was anywhere near as disabled as he made out.
Patrick’s Capital Service was the business of the next witness, Patrick Aranguiz. He engaged as cleaners both employees and sub-contractors. The latter were generally paid $25 per hour.
He had engaged Ms Trimboli in that latter capacity. He entrusted her with supervision of other cleaners. Through her he met the plaintiff and paid them both under the name “CV Industries”. Another reason for taking the plaintiff on as a sub-contractor was that the plaintiff had been in an accident and he did not want to take on insurance risk. He was told the plaintiff could not do heavy work. The cleaning work he categorised as midway between light and heavy work. The plaintiff and Ms Trimboli would provide him with invoices detailing the work for which they would be paid. The records were tendered.
On 6 August 2008, he had a conversation with the plaintiff who stated that he was not well and was giving up work as a result.
Mr Aranguiz had not been aware of the surgery the plaintiff had undergone. He found the plaintiff and Ms Trimboli satisfactory workers. Although each had sick days, it did not seem to be a pattern. He did hear of the pizza shop from Ms Trimboli.
This evidence did not support the view that the plaintiff was struggling to perform the cleaning work for Patrick’s Capital Service.
Next was Mr Peter Irving, accountant. He started doing work for the plaintiff in 2002. That included “Clear View” returns. The company, CV Industries (Aust) Pty Ltd, was deregistered in February 2012. There was also, from 1 July 2009, another company, Dago & Catarina’s Homemade Pasta Pty Ltd. This was in fact a subsidiary of Alex’s Sand and Gravel Pty Ltd, a company controlled by Mr D’Ambrosio.
Mr Irving had calculated the gross income for CV Industries for the 2006 year had been $467,000.00. The lawn mowing revenue ceased thereafter. The subsequent businesses ran at a substantial loss. Thereafter he had recorded only Centrelink benefits from 1 July 2011. He did notice, after 2006, that the plaintiff seemed to have physically deteriorated.
It does appear from the records that little, if any, income was being generated from the plaintiff’s physical labour. That was not necessarily a result of physical incapacity. Indeed, it seems to me that the lack of financial success was not related to the plaintiff’s injuries.
A transport officer, Mr Michael Bailey, was called concerning the cleaning that the plaintiff did at the bus interchange in Civic. He recalled that he was told by Ms Trimboli that the plaintiff had an accident and she took over the cleaning for a short time until those premises were relocated. There was, he recalled, after the accident, a man who attended with the plaintiff and did the actual work.
The books and records given to Mr Irving were, apparently, kept by Mr Bandera Pilapytye. He told Mr Watson SC that he had observed the plaintiff from time to time apparently preparing meals which were then refrigerated.
The Chinese chef, hired by the plaintiff, was Wei Yu Jiang. He cooked the Chinese meals and, after being taught by the plaintiff, pizzas. The plaintiff had told him he had injured his neck in a car accident and it appeared to cause him some discomfort. However, it also appeared that the plaintiff did a fair share of the physical work of preparing meals.
Ms Trimboli gave evidence. She first met the plaintiff in 1997. She was aware that he cooked as a chef and did some cleaning work. He also started doing lawnmowing, and also ran a restaurant in Yass. She recalled an incident when the plaintiff was assaulted at Yass but he did not complain of any neck problems as a result.
At this time, end 2002, he moved to the farm staying with Ms Trimboli. The lawnmowing business was, of course, seasonal. He was expecting more contracts in that line of work. The company was then set up. The solicitor, however, advised that Mr Le Mesurier’s position was inappropriate given his conflict of interest. The latter transferred his shares to Ms Trimboli and resigned.
She gave an account of the day of the accident. It corroborated the plaintiff’s account of the discovery of the defendant’s motor vehicle and asserted that they had then driven to the Gungahlin Police Station. The plaintiff went in and after about half an hour re-emerged with a page of paper about A4 and the card, exhibit 9. She did not recall whether they then went to the hospital as intended.
There are two comments on this. The first is that the card could not have been generated at that time or, indeed, on that day. The second is that the attendance at the hospital is clearly corroborated. She said the paper was filled out by the plaintiff but she was not with him when or, if it was returned to the Police Station.
Thereafter, the plaintiff was greatly disabled by pain. He could not operate a ride-on mower. He gave that work up. He had to undergo two neck operations. He was full on in terms of pain until the second operation. He was anxious to get back to work. That operation was 29 April 2008. After that, he wanted to try to return to work. She asked Mr Aranguiz (Patrick) who agreed to give him a try. He eventually gave it up complaining of his pain.
He then attempted the Kaleen business.
She denied that the plaintiff was working between the two operations he had. That evidence was plainly contrary to the documentary evidence. The Kaleen business, she said, stopped when the plaintiff dropped a pot and got burnt as did the other chef.
She acknowledged that she had had a number of claims for damages arising out of motor vehicle accidents. She denied that she had claimed a loss of income from the pasta business, Catarina’s Cafe. She seriously played down the plaintiff’s capacity to work as a chef. That picture was not consistent with the admissions obtained from the plaintiff under cross-examination. Indeed, Mr Watson SC went so far as to suggest that the motor vehicle accident was seized upon by him as a means of substituting for the mowing contracts which, given Mr Le Mesurier’s conflict of interest, would no longer be available.
In re-examination, Ms Trimboli sought to qualify the evidence she and the plaintiff had given of attending on Gungahlin Police Station the same day as the accident. “... it could’ve been the day after that ...”
Nevertheless, she stuck to the assertion that they attended Gungahlin Police Station on the same day as the accident. She also asserted that they went to that police station only once.
This account cannot be accurate. The suspect motor vehicle was only at Hall Cemetery later in the day of 2 March 2006. I accept that it collided earlier in the day with the plaintiff’s vehicle. It is clear that the plaintiff must have seen the vehicle there and thereafter provided its registration number to Constable Monaghan. That would lead to that report being linked by job number to the stolen motor vehicle report. That link could not have been made on 2 March 2006. It is apparent to me that the plaintiff delayed reporting the stolen vehicle until after 2 March 2006. Though he may well have called police earlier to report the collision, it is also likely given the lack of any record held by police that he did not report it in terms that would have led to a police investigation of the accident. He did not immediately suffer symptoms so that it is likely that he did not then claim to have been injured.
Given the overall lack of credibility of the plaintiff and Ms Trimboli, I must conclude that there was something they wished to think about before proceeding further. I do believe the two vehicles collided. It would have become apparent only after the vehicle was linked to a car thief that no other driver would come forward to contradict the plaintiff’s version of events. He did not, I believe, give that version to the police. He gave that version to his solicitor in the context of progressing a personal injury claim and, of course, his disability claim. The stolen vehicle was removed, the NRMA file reveals, at about 11.00 am on 3 March, 2006. It is, therefore, possible that the plaintiff spotted the vehicle the next day before its removal.
I have received, also, evidence relating to the value of the plaintiff’s earning capacity. This evidence and information given to Mr Davis was both inaccurate and exaggerated both as to his past earning capacity and as to his future earning capacity. Nevertheless, two neck operations must have diminished his capacity to some extent.
I would assess that pre-existing capacity at $25,000.00 net per annum as at 2006 and the degree of diminution at 25%. It did not prevent anything but heavy labouring work. Commercial cleaning was clearly within his ongoing capacity. He certainly lost some time from work as a result of undergoing and recovering from those operations. The state of his spine was such that vicissitudes adverse to him must be allowed for at a higher than conventional level.
Given those uncertainties I can do no better than to allow a lump sum reflecting as best I can the situation.
I must comment on Mr Watson’s allegations of fraud. He referred to Kuhl v Zurich Financial Services Australia Ltd & Anor (2011) 243 CLR 361 at 385 [64]. It simply endorses a commonsense view that if a party/witness is deliberately giving or calling false evidence then an adverse inference may well be justified. I have borne that in mind and have accepted inferences supporting the plaintiff’s case only insofar as the same have been independently verified. I agree with Mr Watson SC also that no reliance can be placed on Ms Trimboli’s evidence where it is contestable. One must doubt whether she attended at all with the plaintiff at the police station. Either way she clearly was unaware that the plaintiff’s account of attending at the police station on 2 March 2006 was disproved rather than supported by exhibit 9.
That really goes to the next issue. If there was a collision, albeit at low speed, did the plaintiff have an injury? The objective evidence has persuaded me that there was. However, I am also persuaded, as Mr Watson SC submitted, that the plaintiff made as full a recovery as was possible.
Medical expenses, however, do follow as a consequence. The mathematics of that is $21,000.00. There seems to be nothing beyond the expenses of the operations involved save for medications. I think the plaintiff became somewhat addicted to medication. I do not accept that it followed from the accident.
I formally reject, as on the authorities I must, that the insurance monies received from NRMA should be deducted from any damages awarded.
As Mr Campbell SC submitted, the phone call records of the plaintiff provide some support for the view that the accident happened. They also support, however, the view that, at that stage, the plaintiff did not consider that it needed urgent police action.
Nevertheless, as I have already noted, I accept that the accident happened as the plaintiff described it and he suffered some injury as a result. Indeed the tests showing interruption of nerve conduction signals objectively support that as do the presence of hyper-reflexia and bilateral clonus.
Mr Campbell SC put it that the partial disability objectively ascertained would rule out heavy manual labour as required for mowing work. I accept that, nevertheless, I make it clear that although the plaintiff resigned from PCS telling Mr Aranguiz he could no longer perform the work, I do not accept that he in fact lacked that capacity. His cessation of work was, I believe, forensically motivated.
There is, however, one matter that is a genuine disability. That is that the history of neck surgery means that an employer would hesitate to take the plaintiff on as an employee, as opposed to a sub-contractor.
The difficulty, as I discussed with Mr Campbell SC in submissions, is endeavouring to distil the feigned incapacity from the real extent of it. I also had difficulty accepting as truthful the evidence, intended as corroborative of the extent of the plaintiff’s disabilities, particularly of Ms Trimboli and Mr D’Ambrosio.
I therefore proceed on the basis of some ongoing incapacity and perhaps, some occasional discomfort, but not sufficient to warrant a view that the plaintiff could not carry on a catering or cleaning business.
That said, I assess general damages at $75,000.00. I attribute $50,000.00 to the past, which attracts interest of $8,000.00. Out of pocket expenses, wholly in the past, I allow at $21,000.00.
For past loss of earning capacity I allow $50,000.00 plus interest of $17,000.00. In the absence of submissions or evidence as to the appropriate commercial rate of interest, I have adopted the conventional rate of 9% per annum and apportioned the past loss evenly over the period since the accident. For future loss of earning capacity I would allow a further $50,000.00, for in the main, for the loss of a capacity to engage in earthmoving, landscaping and mowing. I do not think more than a nominal amount for superannuation loss is warranted. He would not usually have been employed on wages. I find $1,500.00.
Those figures may be summarised as follows:
General Damages $75,000.00
Interest on past ($50,000) @ 4% p/a for 7.5 years
spread over period but weighted a little towards
the early months after accident – rounded to $8,000.00Out of pocket expenses $21,000.00
Loss of earning capacity
Past loss $50,000.00
Interest at 9% rounded to $17,000.00
Future loss $50,000.00
Loss of superannuation benefits $1,500.00
_________
$222,500.00
There will be judgment for the plaintiff for $222,500.00. Costs will follow the event, in the absence of further submissions. Unless a party requests that the matter be listed within fourteen (14) days for argument about costs, there will be an order that the defendant pay the plaintiff’s costs.
I certify that the preceding one hundred and ninety-seven (197) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
.Associate:
Date: 21 October 2013
Counsel for the plaintiff: Mr D Campbell SC
Solicitor for the plaintiff: Porters Lawyers
Counsel for the defendant: Mr G Watson SC
Solicitor for the defendant: Moray & Agnew
Date of hearing: 18, 19, 20, 21 February 2013, 18, 19, 25, 26, 27, 28 March 2013, 5, 6, 7, 8, 13, 14, 15 August, 2013
Date of judgment: 21 October 2013
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