Pica v Sidki & Juczkewitcz No. DCCIV-02-953

PICA v SIDKI & JUCZKEWITZ
[2004] SADC 74
Judge Kelly
Civil
Background

In the early hours of the morning of Wednesday 30 June 1999, the plaintiff Giovanni Pica was driving a Ford motor vehicle to his home at Trinity Gardens. Whilst stationary at the intersection of Botanic Road and Hackney Road the plaintiff claims to have been involved in a rear end collision when a motor vehicle driven by the first defendant, Tania Sidki, collided with the rear of his car whilst stationary at that intersection.
There were no witnesses to the collision. The plaintiff had been playing pool with Ms Sidki for a number of hours at the Berkley Hotel in Hindley Street Adelaide. At the trial the plaintiff told the Court that Ms Sidki was following him home in a vehicle which had been loaned to her by the second defendant Shane Juczkewitz in order for Ms Sidki to borrow $10 from the plaintiff. The plaintiff said that he had been friendly with Ms Sidki for several months prior to the accident, he knew that she was a prostitute but he denied ever acting as her driver in the pursuit of her business.
Both the second defendant and his brother Mr Jason Juczkewitz gave evidence about the circumstances in which Ms Sidki borrowed the second defendant’s motor vehicle in late June 1999. After Ms Sidki returned the vehicle after it was loaned to her the second defendant noticed there was a dent to the right front guard which he estimated would have cost approximately $100 - $200 to fix. He did the work himself. As for the damage to the plaintiff’s vehicle, the plaintiff said that he did not repair his motor vehicle, a 1982 Ford Fairmont, as the cost of repairs would have exceeded the car’s value. He continued to drive the vehicle notwithstanding the fact that he claimed the damage sustained to the vehicle included damage to the chassis.
The plaintiff did not report the accident to the police until 13 July 1999. The accident report was tendered in evidence exhibit D1. In that report the plaintiff did not nominate Ms Sidki as the driver and nor did he assert that any person involved in the accident had suffered injury. In fact, the second defendant was nominated by the plaintiff as the driver. The plaintiff was closely cross examined about the circumstances of the accident on 30 June 1999 and about the accident report he submitted to the police some two weeks after that date. The plaintiff’s explanation for the delay and the failure to nominate Ms Sidki as the driver was unconvincing.
The evidence concerning the circumstances surrounding the accident and the plaintiff’s subsequent report to the police caused me considerable disquiet as to the plaintiff’s veracity.
However, since the first defendant has admitted liability for the accident it is not, necessary for me to consider in any more detail the facts surrounding the accident on 30 June 1999. The claim against the second defendant was dismissed by consent of the parties during the trial and it is the plaintiff’s claim against the first defendant which the Court must determine.
Nature of the Proceedings
As a result of the collision the plaintiff claims to have suffered a number of injuries particularised as follows, a whiplash injury to his neck, shock and an injury to the left knee with associated pain.
The plaintiff claimed that these injuries aggravated pre-existing injuries suffered by him in previous work accidents, motor vehicle accidents and assaults and that the effect of this was to delay his rehabilitation back into the work force. He claimed that the effect of the accident was to further reduce his capacity to find and sustain gainful employment.
The plaintiff claims damages for non-economic loss, past economic loss and loss of earning capacity, future economic loss and loss of earning capacity together with special damages which have been agreed by the parties.
The first defendant denied that the plaintiff suffered any injuries as a result of the accident on 30 June 1999 or, in the alternative, the defendant claims that any injury suffered by the plaintiff was so minor that the plaintiff is not entitled to any damages for non-economic loss as he is unable to satisfy either of the thresholds set out in s 35A(1)(a)(i) or (ii) of the Wrongs Act 1936.
The issue before the Court was whether the plaintiff sustained injuries as a result of the accident on 30 June 1999 and if so, whether those injuries were of such a nature and extent as to entitle the plaintiff to any damages.
Each of the parties called a number of witnesses. The plaintiff gave evidence and called two witnesses, Dr Brian Cohen, a general surgeon and Ms Carol Black, a registered psychologist.
The defendant called five witnesses namely, Dr Ross Johnson, surgeon, David Easson, retired police officer, Jason Juczkewitz, Shane Juczkewitz, and Dr Mark Utten, general medical practitioner. The defendant also tendered a number of medical reports, one from Dr Ross Johnson dated 15 November 2002 exhibit D8, two reports from Mr John Tomich, ear surgeon, dated 25 November 2002 exhibit D9A and 14 April 2003 exhibit D9B, one report from Dr Marty Ewer, psychiatrist, dated 20 December 2002 exhibit D10, and two reports from Dr Mark Utten the plaintiff’s general medical practitioner dated 6 April 2000 exhibit D11, 15 November 2003 exhibit D13 and the file of Dr Utten relating to his consultations with Mr Pica from about 1994 up to August 2003 exhibit D12.
In order to clarify the nature of the plaintiff’s claim it is necessary to traverse in some detail the plaintiff’s prior history of work accidents, motor vehicle accidents and assaults and their aftermath.
Chronology of the Plaintiff’s History of Acidents both prior to and after 30 June 1999
The plaintiff’s history of incidents involving some injury to himself is extensive.
.1.At the age of 15 the plaintiff broke his left leg. There do not appear to have been any complications arising out of that incident.
2.On 13 November 1985 the plaintiff was involved in a motor vehicle accident when the car he was driving went over a cliff. As far as he can remember he was not injured in that accident.
3.In February 1986 the plaintiff was involved in a motor vehicle accident whilst employed at the St Peter’s Council. In that accident he suffered injuries to his lower back, neck, left shoulder and left leg.
4. In 1987 the plaintiff was involved in a further motor vehicle accident again whilst employed at the St Peter’s Council in which he suffered further injury to his left shoulder, neck and lower back.
5. The plaintiff was involved in a third motor vehicle accident the precise circumstances of which he was not able to recall.
6. Some time between 1985 and before 1989 the plaintiff was involved in a fourth motor vehicle accident in which he sustained further injuries. As a result of which he said his neck was wrenched and he suffered shock together with aggravation of pre-existing injuries.
7. Some time in 1988 the plaintiff was involved in operating a back hoe against whilst in the employment of St Peter’s Council when he suffered a further injury resulting in aggravation of injuries to his lower back, neck, left leg and left shoulder.
8. A further incident whilst employed at the St Peter’s Council involving an altercation with another employee of the Council over a wheelbarrow resulted in the plaintiff suffering what he described as his first anxiety attack on 30 November 1989.
9. In about 1991 or 1992 the plaintiff agreed that as a result of being handcuffed by police he suffered left hand numbness for which he attended the Royal Adelaide Hospital.
10. On a date which could not be ascertained but which was some time around 1994 or 1996 the plaintiff went to the Royal Adelaide Hospital after suffering a stab wound to the hip. At the time when he went to the hospital he was drunk.
11. In 1996 the plaintiff was admitted to the Accident and Emergency Department of the Royal Adelaide Hospital after being kicked in the head by people in a night club.
12. On 28 January 1996 the plaintiff was involved in a motor vehicle accident in which he suffered further injuries including shock, whiplash, stiffness to his shoulder neck and back and an aggravation of pre-existing injuries caused in prior incidents. As a result of this accident he suffered from dizziness, headaches, a problem with his balance, tinnitus and was treated with physiotherapy and pain killers.
13. At some stage after 1996 on a date he cannot remember the plaintiff was involved in a further motor vehicle accident at Aldinga. He did not suffer any injuries.
14. On 5 July 1998 the plaintiff was involved in an incident outside Rio’s night club as a result of which he was charged with assault, resist arrest, giving a false name and address to police and offensive language. He was convicted of 4 of those charges and acquitted of the assault. As a result of that incident the plaintiff said that he sustained injuries to his head, lower lip, neck and lower back, coccyx and anus.
15. On 28 October 2000 the plaintiff was involved in a further incident in which he claimed that he was assaulted at the Tea Tree Gully Hotel by bouncers. He claims to have sustained further injuries including a broken nose, bruising and laceration to left hand and forearm, bruising and bumps to the rear of his head, bruising and swelling to the left side of the face and jaw, and injury to the left ear and bruising to the abdomen. As a result of the injuries sustained in that incident the plaintiff is suing the Tea Tree Gully Hotel and has claimed compensation pursuant to the Criminal Injuries Compensation Act. The plaintiff claims that his pre-existing depression and anxiety has been aggravated by that further incident on 28 October 2000.
16. On 2 September 2002 the plaintiff suffered further injuries at a gym as a result of an alleged faulty rowing machine where he sustained injuries to the lower back and groin which aggravated his pre-existing injuries and made them worse.
17. A few days later the plaintiff suffered a further injury to the left knee while exercising on a treadmill at the same gym. He says that he has basically healed from that injury now.
18. On 27 November 2002 whilst on a boat with friends on Kangaroo Island the plaintiff suffered an injury to his right wrist which he sprained as a result of severe jolting when the boat struck a reef. The plaintiff does not claim any ongoing disability as a result of this.
19. On 31 December 2002 the plaintiff suffered an injury to his head requiring six stitches when the tailgate of a tipper truck he was operating hit him on the head unexpectedly.
29. On 18 August 2003 the plaintiff suffered an injury while chopping firewood. The plaintiff said that the injury happened when he was using an axe to chop firewood and he was injured in eye and sustained bruising and an abrasion to his leg.
The foregoing is a brief summary of the plaintiff’s own evidence about those incidents and the injuries he claims to have suffered as a result of each of those incidents. The motor vehicle accident which is the subject of the present claim occurred on 30 June 1999.
I turn now to the evidence in relation to the plaintiff’s injuries as a result of this accident and the treatment which he received after that accident.
Plaintiff’s Injuries and Treatment
On 30 June 1999 the plaintiff was unemployed and in receipt of a disability pension. It was not in dispute that the plaintiff has been in receipt of a disability pension from 1993 up to the date of trial.
On the evening of the accident he had been playing pool with Ms Sidki at the Berkley Hotel in Hindley Street. The plaintiff said that he often went to night clubs at late hours of the night because he couldn’t sleep as a result of all of the problems that he had experienced after the earlier accidents and assaults which have been detailed above.
At the time of the accident the plaintiff said that he felt the force of the rear end collision go through his body down the lower left side. He suffered stiffness in the neck and he was in shock. He said the next day and the day after he started to experience stiffness in the lower back, abdomen, leg, neck and shoulder. He said that he had basically re-aggravated a lot of old injuries.
On 5 July 1999 he went to see his general practitioner Dr Utten. The plaintiff agreed in cross-examination that he may have gone to see Dr Utten for other problems as well at that time. He said that his doctor recommended physiotherapy and recommended some pain killers. The plaintiff said that he did not take any pain killers as it makes his constipation worse. The plaintiff who was already receiving physiotherapy said that he continued to have physiotherapy treatment after 30 June 1999 until they (meaning the Insurance company) cut him off. Apparently the insurer decided not to pay any further bills and the plaintiff said that he did not have any other treatment as he felt bad about not being able to pay the bills. He agreed that the time when he ceased having physiotherapy from Ms Wheatley was early in the year 2000. The plaintiff claimed to have gone elsewhere to have further physiotherapy from a Marika Scicluna but agreed in cross-examination that he had not commenced to see Ms Scicluna until after the assault at the Tea Tree Gully Hotel on 28 October 2000.
The plaintiff said that as a result of the accident on 30 June 1999 he has continuing pain in the left leg, continuous pain in the lower back and the abdomen, pinched nerves in the neck, stiffness in the foot, problems with his knee and severe pain in the hip. The plaintiff said that the injuries he suffered prior to 30 June 1999 get inflamed a lot quicker now than they did before. The plaintiff said that he is a lot worse now than he was prior to the accident. Specifically the plaintiff said that it is harder to turn his neck as a result of the accident on 30 June 1999, his neck is a lot more easily aggravated, his stress and anxiety is worse, he has had ear problems, he now has severe pain in the ear and ringing pains which were not present before 1999. In cross-examination the plaintiff agreed that he may have had ear problems before 1999, but that they are a lot worse now. He claimed that his headaches are worse and have become more frequent since 30 June 1999.
Dr Mark Utten
The plaintiff’s general medical practitioner, Dr Utten, was called by the first defendant to give evidence about his treatment of the plaintiff over a period of some years.
Dr Utten told the Court that the plaintiff had been attending his surgery on and off from about 1994 until the last time he saw him on 28 August 2003.
On 5 July 1999 the plaintiff saw him about a number of matters. The first matter recorded in his notes for that date was the results of a HIV test which the plaintiff had had and which he discussed with him. The second matter was the plaintiff’s problem with sinusitis and the third matter was a complaint of numb legs as a result of a rear end collision.
At that time Dr Utten prescribed Voltaren for the numbness in the legs. Dr Utten could find no record of having referred the plaintiff to a physiotherapist on that day although there is reference, both prior to and subsequent to that date to the plaintiff seeing physiotherapists about other matters. Dr Utten said the next time he saw the plaintiff after that visit on 5 July 1999 was 8 September. On 8 September the plaintiff was complaining of chest tightness, shaking while standing for prolonged periods, tender left anterior shoulder and a complaint of persisting neck, back and knee pain which Dr Utten did not attribute to any specific cause. On that occasion Dr Utten prescribed a reflux medication for the chest complaints. Two other unrelated complaints were dealt with on that day, an earache and a fungal infection of the foot.
During a further consultation on 14 September the doctor noted that the issue of abdominal pain, leg and back pain was discussed. Further reflux medication was prescribed for the gastric problem and on this occasion Dr Utten referred the plaintiff to a gastro-enterologist and an orthopaedic specialist. On the same date the plaintiff complained of headache which the doctor thought was secondary to neck problems and recommended that he have massage for that problem.
There is one further attendance in 1999 on 22 October when Dr Utten noted that the plaintiff presented with a problem with the right wrist for which Dr Utten suggested x-rays. He also noted on that date that the plaintiff had seen Andrea Wheatley an osteopath who had suggested a CT scan of the neck and lumbar spine.
Apart from the reference in the note of 5 July 1999 Dr Utten did not point to any other attendances by the plaintiff in which the accident of 30 June 1999 was mentioned.
In Dr Utten’s notes, there are a number of entries which he explained, dealt with the attendance on him by the plaintiff after a motor vehicle accident on 28 January 1996, after an alleged assault on the plaintiff by the police on 5 July 1998 and again after an alleged assault by bouncers at the Tea Tree Gully Hotel on 28 October 2000.
On 29 January 1996 the plaintiff saw Dr Utten as a result of an accident on 28 January 1996. During that consultation Dr Utten noted that the plaintiff had complained of re-aggravating old back, neck, shoulder and left arm and hand injuries. The doctor assessed the plaintiff as suffering from a soft tissue injury on that day and prescribed rest and panadeine. He was also referred to a massage therapist on that date. As a result of the complaint the doctor recommended x-rays to the neck, back and hip. On 6 July 1998 the plaintiff attended Dr Utten with complaints of being injured at the Casino the night before. On that occasion Dr Utten noted that he had a split lip plus abrasions, on examination slight swelling to the right lower jaw, slightly tender in that area, a swollen lower lip on the right with some puffy discharge. The plaintiff was also complaining of pain in the right wrist. On the next day the plaintiff came back to the doctor’s rooms and the doctor noted that the lip appeared to be less swollen and continued to investigate whether there was any injury to the right wrist.
Later, Dr Utten referred the plaintiff to a psychologist Ms Carol Black. Although he was unable to be certain of the exact date when he had sent the plaintiff to see Ms Black he agreed from the entry in his notes from 24 March 1999 it was about that time that this occurred. There is no dispute that the plaintiff did see Ms Black who has provided a number of reports which I will deal with shortly in relation to an assessment of the plaintiff in 1999. On 30 April 1999 Dr Utten noted that the plaintiff had seen Ms Black and that the consultation had apparently been helpful with regard to back pain and anxiety and street suffered by the plaintiff. On the same date the plaintiff was referred to a chiropractor for treatment in relation to complaints the plaintiff was making about tenderness in the left upper quadrant.
On 20 May 1999 Dr Utten noted that the plaintiff again presented complaining of pain in the neck, shoulder, right and left arm and recurring left foot pain. On this occasion Dr Utten prescribed x-rays, ultrasound, a drug Nurofen and recommended that the plaintiff see a physiotherapist and do exercise. On that occasion Dr Utten also noted there was evidence of an ear infection. On the day before the motor vehicle accident on 30 June 1999 the plaintiff consulted Dr Utten. On that occasion he was complaining of weight loss, loss of appetite, a cough with phlegm and some sleep disturbances as result of being placed in a cell at the Remand Centre. On that day the plaintiff also requested the STD screen, the result of which are referred to in the consultation of 5 July 1999 to which references have already been made.

I turn now to the attendance on Dr Utten on 30 October 2000. On that occasion the plaintiff attended Dr Utten’s surgery complaining of injuries suffered as a result of a fight on the premises on Friday at a bar. On that occasion he complained of facial bruising, periorbital injury, neck pain, back pain, lumbar pain, and dorsal back pain. There was also a laceration to the right upper lip which had already been sutured when Dr Utten saw him on 30 October. Further attendances with Dr Utten for 4, 7 and 29 November 2000 all relate to follow-up attendances for the injuries allegedly sustained on 28 October 2000 at the Tea Tree Gully Hotel.
Dr Utten told the Court that the last occasion he saw the plaintiff was on 27 August 2003 when the plaintiff went to his rooms without an appointment and requested that Dr Utten hand over the entire case file of Dr Utten to him. At that time Dr Utten had already been served with a subpoena to produce the file from the defendant’s solicitors.
When Dr Utten explained to the plaintiff that he was not able to give him the file the plaintiff became agitated and demanded that the doctor represent his interests. By this stage Dr Utten said that he requested that he see another doctor (a request that he had already made on two previous occasions). He also told the plaintiff on that occasion that it was impossible for him to provide any realistic opinion about any of the specific injuries about which the plaintiff had complained as he had so many accidents that the doctor found it impossible to determine where the results and effects of one finish and the next begins. At that stage the plaintiff stormed out of the doctor’s offices and as he was leaving smashed the front door of the clinic.
The plaintiff was questioned about this and claimed not to be aware of how the door to the clinic had been smashed shortly after he left the clinic by that door. On 15 November 2003 in a response to a request from a solicitor acting for the plaintiff in relation to a criminal injuries compensation claim, Dr Utten wrote a letter which was tendered in evidence exhibit D13.
Dr Utten’s assessment of the plaintiff’s injuries in relation to this accident and his assessment of the plaintiff’s presentation to him generally is contained in a letter which was tendered in evidence exhibit D13, part of which is set out below.:
“ Re: Medical Status of Giovanni Pica DOB 25-5-68
Please note that I have received your letter of 13-10-03 requesting a medical report regarding Mr Pica.
Also note that I have advised Mr Pica on several occasions over a period of several years to seek the services of another GP and or an accident specialist to resolve issues relating to his many alleged accidents and assaults and similar injuries. Many of his alleged accidents precede my initial attendance.
Quite simply I am completely unable to determine where the injuries attributed to a particular alleged accident or assault start and finish. There are simply too many of them and his reported symptoms are too vague and nebulous for me to appropriately attribute.
Also I have also come to question the veracity of his reports.
Also Mr Pica has asserted that I should prepare a report favouring his aims (ie obtaining damages from other parities). I am not inclined to do so if the evidence is lacking.
I have in the past offered to transfer his notes in entirety to another GP or accident specialist.
The last time that I requested Mr Pica seek the services of another doctor (27-8-03) he stormed out of my office and smashed the plate glass entrance door to the medical centre. He has still not made good these damages.
I (sic) you still require a report from me then I must insist on advance payment for this report of the order of $400.”
Dr Utten told the Court that at the time when Mr Pica had requested that the doctor prepare a report favouring his aims he had a conversation with the plaintiff to the effect that as Dr Utten was the plaintiff’s doctor, it was in the plaintiff’s view, his obligation to represent his interests and that the community owed him (the plaintiff) as a result of his failed local government claim for injuries at work a decade previously.
I am satisfied that Dr Utten did have such a conversation with the plaintiff, notwithstanding the plaintiff’s denial that he did anything other than attend at Dr Utten’s rooms on 27 August 2003 and request the case file as he was concerned that important documents from within that file might be lost if the doctor used couriers to send it to the defendant’s solicitors.
It is significant that when the plaintiff was being questioned in cross-examination about the damages he had received as a result of the motor vehicle accident on 28 January 1996 he mentioned that failed local government claim when he said
“Q.Were you not having any trouble with your memory remembering that do you.
A.Well some things you remember some things you don’t.
Q.That sticks in your mind does it, the fact that you got exactly $15,000 in compensation over and above costs.
A.What sticks in my mind also is that there was a misjustice of carriage done in my case with the St Peter’s Council. That sticks in my mind also.
Q.A miscarriage of justice in relation to the Council. You didn’t succeed, is that right.
A.Well succeeding, I don’t know anything about succeeding, but misjustice did occur and I remember that.”
I was impressed with Dr Utten as a witness. He saw Mr Pica regularly in the years between 1994 and 2003. He treated him for a multitude of complaints and ailments in that time. In my view, he was in the best position to assess the plaintiff’s condition as a result of the collision on 30 June 1999.
I accept the evidence of Dr Utten that the plaintiff only mentioned the rear end collision as an afterthought during the conversation on 5 July 1999. His only complaint was of numbness to the legs.
Evidence of other Expert Witnesses
In support of his claim that the accident on 30 June 1999 had aggravated injuries pre-existing prior to that date as a result of other accidents, the plaintiff called two witnesses, Dr Brian Cohen, a general surgeon and Ms Carol Black, a registered psychologist. Reports from each of the above named were tendered in evidence and supplemented by oral evidence. It is necessary to summarise the context in which both experts were called to give evidence in order to properly understand their conclusions. I deal first with Ms Black.
Three reports from Ms Black were tendered, the first dated 3 July 2001 exhibit P7A, the second dated 30 July 2003 exhibit P7B and the third report dated 5 March 2004 exhibit P7C.
The plaintiff was referred to Ms Black prior to 30 June 1999 by his general medical practitioner, Dr Utten. In fact Ms Black saw the plaintiff on eight occasions between 27 March 1999 and 18 June 1999 for the purpose of neuropsychological evaluation. During the eighth session which Ms Black assessed the plaintiff he reported at that time problems with anxiety, anxiety attacks and a previous history of panic disorder. Ms Black was of the view that the plaintiff’s anxiety condition developed as a result of the accidents and incidents which occurred whilst the plaintiff was employed by St Peters Council back in the years 1985 to 1989. She was first asked to assess the effects of the motor vehicle accident on 30 June 1999 on the plaintiff in 2001. She saw him three times on 19 March 2001, 26 March 2001 and 12 May 2001 for the purpose of providing the report of 3 July 2001 exhibit P7A.
At that time the plaintiff reported multiple pain problems, mood and anxiety systems which Ms Black assessed by using psychological tools known as the BEC depression inventory and the BEC anxiety inventory. Ms Black acknowledged that the assessment using these methods is largely dependant on the plaintiff self-reporting and there is no validity scale built into the BEC anxiety inventory. Ms Black also administered an intelligence test known as Weschler Adult Intelligence Scale and assessed his overall performances in the borderline range of ability.
Ms Black concluded at that time that the plaintiff was suffering from systems of clinical depression and anxiety, specifically panic disorder, and on-going chronic pain as a result of physical injuries sustained in the motor vehicle accident and/or an exacerbate of existing injuries from previous injuries and assaults. Ms Black acknowledged that the plaintiff had complained prior to 30 June 1999 specifically of symptoms of depression and anxiety and that she had taken a history of previous incidents and motor vehicle accidents which would have contributed to his presenting complaints. She was not able to quantify in terms of any percentage assessment what the effect that accident of 30 June 1999 had on these pre-existing complaints.
One of the difficulties with Ms Black’s report of 3 July 2001 is that the plaintiff did not report to her on that occasion, that he had suffered a motor vehicle accident on 28 January 1996. I find this omission to be quite significant, in the light of the fact that she was seeing him at the very time in 1999 when he had just commenced a claim for personal injuries arising out of the motor vehicle accident on 28 January 1996 and had in fact on 21 January 1999 filed a statement of claim in the Magistrates Court at Adelaide claiming damages for a range of alleged injuries and conditions almost identical to the complaints in the claim before the Court (see Exhibit D4). It is not surprising in the light of that, that Ms Black was unable to quantify the aggravation allegedly caused by the accident on 30 June 1999.
Ms Black was asked to assess the plaintiff on two further occasions, the final occasion being for the purposes of a report on 5 March 2004 at a time when she was in receipt of other medical reports which had been obtained for the purposes these proceedings including reports from Dr Cohen, Dr Utten, Dr Tomich, Dr Johnson and Dr Ewer. At that stage the plaintiff was still complaining of pain in his left leg, hips, side, lower back, with aggravations to the groin and abdomen and at that time presented with depressive symptoms and problems with his memory and concentration.
In this report Ms Black specifically addressed the possibility that the plaintiff was malingering.
She concluded as follows:
“I believe his symptoms may better be explained by psychogenic disturbance rather than deliberate pretence. His exaggerated complaints may give cause to signal the possibility of malingering, but it would have to be considered speculative, and if it were the case, this sort of behaviour can be symptomatic of an unwitting effort to work out disturbing life problems or emotional obstacles and it may be more symptomatic of psychological disorder.”
Reports of Dr Cohen
Dr Cohen provided three reports in respect of the plaintiff, the first being on 31 December 1998 (P6A), a report which was prepared specifically for use in the legal proceedings arising out of the accident on 28 January 1996, a second report of 27 November 2000 (P6B) and finally, a report on 26 February 2004 (P6C).
Dr Cohen himself acknowledged that in relation to the two reports P6A and P6B that he had not received a complete history from the plaintiff in relation to the assessment on either of those two occasions. In relation to the report of 31 December 1998 (P6A), the plaintiff did not report that some six months prior to his assessment on 31 December 1998 the plaintiff had been involved in an assault in Hindley Street on 5 July 1998, as a result of which he had allegedly suffered a number of injuries including injuries to the head, lower lip, neck, lower back, coccyx and anus
Moreover for the purpose of the assessment of the plaintiff on 22 November 2000 Dr Cohen was not told about an assault which had taken place on 28 October 2000 less than one month before his assessment as a result of which the plaintiff had allegedly sustained injuries and in respect of which he has since launched civil proceedings in the District Court and Magistrates Court of South Australia (see Exhibit D2 and D3).
Dr Cohen agreed that the plaintiff only had light working ability before 30 June 1999 as well as thereafter and he also agreed that there was no objective evidence to confirm the plaintiff’s subjective presentation to him, and that his assessment had been totally based on the accuracy and truthfulness of the information relayed to him by the plaintiff.
In addition to the omission to report the two significant accident and assault matters Dr Cohen was also under the impression on the basis of information from the plaintiff, that after the accident on 30 June 1999 the plaintiff had been referred to a physiotherapist, had deep tissue massage and osteopathic treatment. The fact of the matter is that the plaintiff did not have any physiotherapy treatment until after the assault at the Tea Tree Gully Hotel on 28 October 2000, some 16 months after the accident.
Dr Cohen, whilst accepting there was no significant difference between the plaintiff’s presentation between 31 December 1998 and 27 November 2000 nevertheless assessed in percentage terms the aggravation to his pre-existing injuries as a one per cent impairment of his cervical spine and neck, an additional one per cent impairment of his cervical spine and neck, a one and a half percent impairment of the lumbar spine and lower back, no significant difference with regards to his left arm and elbow, and any worsening he assessed would not be more than one per cent impairment at the knee.
He agreed that in the light of the information that the plaintiff had suffered two assaults, one on 5 July 1998 and the second on 28 October 2000, it was very difficult as to whether the differences he observed between his report of 31 December 1998 and his report of 27 November 2000 could be attributed to the accident on 30 June 1999.
In specific questioning Dr Cohen agreed that in the majority of cases a person would have a significant problem five days after the accident and any further problems which might have presented themselves would have been evident, no later than one to two weeks after the subject accident. Asked whether the assessment of such a small percentage of impairment refected in his reports also reflected some doubt in his mind, Dr Cohen replied
“Obviously, it’s a situation as one I can’t confirm. I have given him the benefit of the doubt accepting his presentation that there is a slight worsening but I have not been able to be persuaded that it can be anything more than a very minor one.”
Being in mind my findings as to the circumstances of the accident and the nature of the pain experienced by the plaintiff before and after its occurrence, I find, on the balance of probabilities, that the plaintiff did not sustain any physical injury as a result of the collision. I have taken into account the fact that Dr Cohen was prepared to attribute the pain experienced by the plaintiff after the accident to the collision, but a close analysis of his reports and the evidence which he gave reveals that his findings are to the effect that the pain and symptoms experienced by the plaintiff after the accident are consistent with him having sustained soft tissue injury in the accident. There are necessarily no objective signs of such injury and Dr Cohen is obviously prepared to infer from his findings as to consistency that injuries were sustained by the plaintiff in the collision. I am not prepared to draw such an inference.
On the findings I have already made, the force of the collision was relatively slight and its effect upon the plaintiff was minor. I have already dealt with his failure to report any of the symptoms from which he now complains to Dr Utten on 5 July 1999 or indeed some of them at any stage until well after 1999. When that is combined with my findings that his symptoms before and after the accident are not materially different, I can only conclude that the plaintiff did not sustain any physical injury as a result of the collision.
I turn now to the claim that the plaintiff’s anxiety state and depression has been aggravated by this collision.
Dr Ewer, the psychiatrist who report was tendered and marked D10, examined the plaintiff and concluded that the plaintiff was suffering from an adjustment disorder with depressed and anxious moods and that this condition was present both prior to and subsequent to the accident on 30 June 1999. Dr Ewer did not attribute the psychological and psychiatric condition of Mr Pica solely to the history of incidents and accidents prior to 30 June 1999, but clearly believed he had longstanding dysfunctional personality traits which were present even as early as the plaintiff’s school days. Even accepting that the accident on 30 June 1999 that the plaintiff experienced a minor and temporary aggravation of his pre-existing psychiatric problems as a result of the accident Dr Ewer was of the view that this aggravation did not cause him to experience any increased restriction in his life as a result of the accident, or any change in his life style generally.
Dr Ewer also noted in the assessment that the plaintiff had a tendency to attribute a number of his current problems to the accident on 30 June 1999 and that this did not seem to match up with the fact that he did not seek any psychological assistance for many months after that date and that the accident was only discussed with his general medical practitioner as an after thought when he made the visit on 5 July 1999 regarding another matter. Again Dr Ewer noted in similar vein to Ms Black that the plaintiff seems entrenched in his sickness role and seems to have a lack of personal resources to help him cope with his life.
In relation to the anxiety, depression and panic disorder about which the plaintiff continues to complain, I find there is simply no basis to attribute any worsening of that condition to the accident on 30 June 1999 as opposed to the multitude of other incidents and accidents of which the plaintiff has complained after 30 June 1999.
The Plaintiff
Having outlined the history recounted by the plaintiff both prior to and subsequent to the accident on 30 June 1999 and Dr Utten’s dealings with the plaintiff between 1994 and August of 2003, it is appropriate that I say something about the plaintiff. He was the central witness in this trial. I have formed the view that the plaintiff has overstated the extent and effects of his injuries, both in relation to the accident of 30 June 1999 and other incidents complained of.
It is not my function to make any findings of fact about any other alleged assault or incident in this matter. My duty is only to determine on the balance of probability whether I can accept the plaintiff’s evidence as to the injuries suffered in the motor vehicle accident on 30 June 1999. I found him to be vague at times regarding dates and when events occurred. Although this is to some extent understandable given the unusual history of accidents and incidents in which the plaintiff has apparently suffered injuries, nevertheless, I found his memory to be quite selective.
A submission was made that the plaintiff suffers from some cognitive deficits which disadvantage him as a witness and make more understandable his presentation in Court and to various doctors over the years. My observation of the plaintiff in the witness box was that he appeared to be a man of average intelligence, perfectly able to communicate clearly and accurately when he so chose.
The plaintiff’s evidence about his employment with his brother and his friend after the accident on 30 June 1999 was evasive, inconsistent and at times plainly untruthful. The same observations apply to his evidence about the circumstances of the accident itself.
Having reviewed all of the medical evidence there is no evidence apart from the evidence given by the plaintiff that he suffered any injuries on 30 June 1999. Only one practitioner of all of the doctors who gave evidence found it possible to give the plaintiff the benefit of the doubt on this topic. With respect to that witness I do not share his doubt.

In the end, I have come to the conclusion that there is no evidence to support the plaintiff’s assertion that he suffered any physical or mental injury as a result of the collision on 30 June 1999. For the reasons I have explained. I do not accept his evidence that he did.
If I am wrong and the numbness in the legs complained of to Dr Utten on 5 July 1999 can be attributed to the collision on 30 June 1999, then I find that it was of such a minor nature and of such short duration that it did not result in any significant impairment of the plaintiff’s ability to lead a normal life.
It follows from these conclusions that the first defendant is not liable to pay damages to the plaintiff because no injury to the plaintiff was caused by the negligent driving of Ms Sidki. The plaintiff’s claim is dismissed.

[2004] SADC 74

14 May 2004