Popovic v Murray - [1989] TASSC 110

Serial No. B32/1989
List “B”

COURT: SUPREME COURT OF TASMANIA

CITATION: Popovic v Murray [1989] TASSC 110; B32/1989

PARTIES:  POPOVIC
  ELECTROLYTIC ZINC COMPANY OF AUSTRALASIA LTD
  v
  MURRAY
  LEA BROOK HOLDINGS PTY LTD

FILE NO:  814/1985
DELIVERED ON:                7 September 1989
JUDGMENT OF:                 Green CJ

Judgment Number: B32/1989
Number of paragraphs: 90

Serial No B32/1989
File No 814/1985

POPOVIC AND ELECTROLYTIC ZINC COMPANY OF AUSTRALASIA LTD
v MURRAY AND LEA BROOK HOLDINGS PTY LTD

REASONS FOR JUDGMENT GREEN CJ

7 September 1989

The first named plaintiff ("the plaintiff") claims damages for personal injuries suffered by him whilst a passenger in a motor vehicle as the result of the negligent driving of the first defendant on 7 June 1983 whilst acting as the agent of the second defendant. The second named plaintiff seeks to recover indemnity from the defendants pursuant to s8H of the Workers' Compensation Act 1927. The defendants deny liability and allege that the plaintiff was guilty of contributory negligence by virtue of his failure to wear a seat belt.

I find that the plaintiff was born in Yugoslavia in 1945 and migrated to Australia in 1968. After doing various jobs he commenced employment with the second plaintiff in June 1980 as an underground labourer and later as a miner. I find that on 7 June 1983, whilst he was still employed by that company, the plaintiff was travelling in the back seat of a Ford Fairlane motor vehicle being driven by a Mr Milutinovic on the Murchison Highway at Rosebery.

Whilst the car was stationary outside the Ampol Service Station near the corner of Hospital Road and the Murchison Highway waiting for a semi trailer to pass a utility motor vehicle owned by the second defendant and driven by the first defendant struck the rear right hand corner of the Fairlane.

Upon the evidence before me as to the circumstances of the accident, and in the absence of any evidence from the first defendant, I am prepared to infer that the collision was caused by the negligence of the first defendant. Upon the evidence before me I am not satisfied that any injuries suffered by the plaintiff were caused or contributed to by the plaintiff's failure to wear a seat belt.

The plaintiff's case is that, as a result of the accident, he suffered a whiplash type injury to his cervical spine and that he has been, and will remain for the foreseeable future, physically disabled and virtually unemployable. The defendants' case is in essence that in the end the plaintiff's case depends almost entirely on the plaintiff's credibility and that as his evidence should be rejected I cannot be satisfied that he has suffered any injury and that he is not entitled to any damages. In the alternative, the defendants allege that even if I were satisfied that the plaintiff suffered some injury as a result of the accident I could not be satisfied that that injury resulted in the plaintiff suffering from any long term disability as claimed by the plaintiff.

The plaintiff gave evidence that as a result of the impact the right hand back part of his head struck what he called the dash and which I infer was the shelf between the rear windscreen and the back of the seat. He went to work but after a couple of hours his neck was sore and he felt a burning sensation in his hands and shoulders and had a slight headache. He continued to work for the rest of the shift and then reported to the first aid officer. On the 8 June 1983 he was admitted to the North West General Hospital at Rosebery where he was diagnosed as having suffered a whiplash injury. He was treated and discharged on 10 June 1983. He was certified not fit for work and after x–rays were taken he was referred to the orthopaedic surgeon Mr Binns who prescribed a rigid neck collar which the plaintiff wore for about four months. He continued to live at Rosebery. He said that during this period he suffered "incredible" pain if he stumbled and that when he put strain on his arms he suffered headaches and pain in the top of his shoulder. The plaintiff attempted to undertake light duties which consisted of using a motor mower, gardening and cleaning up but this gave him a headache and pain in the shoulder and the neck and he was put off work again. He was referred to the Douglas Parker Rehabilitation Centre in November 1983 where he was treated for some months including some periods during which he was an inpatient.

On the basis of medical certificates provided by Mr Binns and other doctors, the plaintiff continued to be certified unfit for work until his employment with the second plaintiff was finally terminated with effect from 1 July 1984.

From the date of the accident until the hearing the plaintiff has had many medical examinations and undergone a considerable amount of treatment, to some of which examinations and treatment I shall refer in more detail later in these reasons.

In about January 1984 the plaintiff left Rosebery and started to reside with Mr and Mrs Mandic at Battery Point. During this period he complained, amongst other things, that his shoulder and arms were sore and that this interfered with his sleep, that he had headaches and that his right arm was weaker than his left. The plaintiff remained with Mr and Mrs Mandic throughout 1985 during which period his symptoms persisted more or less continuously save for short periods of "a couple of days". Early in 1986 the plaintiff married and moved to Gagebrook.

On 11 October 1987 the plaintiff and a Mr Joncevski opened a social club in premises owned by Joncevski. The club was open seven days a week from about 10 or 11 am until any time from 8pm to 4 am the next morning. Depending upon how he felt the plaintiff worked in the club on from three to seven days a week, usually starting in the afternoon. The work consisted mainly of serving coffee, drinks and food and doing some cooking.

On 27 June 1988 the plaintiff claimed to Dr Jackson, who was one of the doctors who had been treating him, that his condition had deteriorated as a result of his attempting to chop some wood.

The hearing of this action, which continued with interruptions until 1989, commenced on 8 August 1988.

The symptoms of which the plaintiff now complains are pain in his neck and the top of his shoulder, numbness in his hands, headaches and a feeling of pressure at the back of his head. The activities which particularly bring on these symptoms are lifting, driving and stretching his arms. He feels pain on most days but not every day. In court he demonstrated that he felt pain in his shoulder when he raised his arms and demonstrated the pain he felt when he moved his head in various directions. He also demonstrated movements of his arms and bending which brought on pain. He also said that he has experienced a marked diminution in the strength of his right arm and hand. He also gave evidence of the effects which his disabilities have had upon him in his day to day life which I do not find it necessary to explore in any detail at this stage.

The plaintiff said that he has had problems since the accident but that the problem with his arm did not start until 1985. He said that in 1986 and 1987 he had the problems and disabilities which he described in court, but that since the chopping incident in June 1988 they have been a "bit worse". The plaintiff described the medication he has been taking since the accident both for pain and to help him sleep. He said that he has not been taking drugs throughout that period, there being gaps of some months in 1984, 1985 and 1987 when he apparently did not do so.

The foregoing does not purport to be a complete summary of the plaintiff's evidence but it does serve to highlight some of the main points in the history which the plaintiff gave.

I turn now to the evidence relating to the following issues, the exploration of which has dominated this trial: the credibility of the plaintiff and his witnesses, the genuineness of the plaintiff's complaints, whether the plaintiff has any genuine disabilities and, if he has, whether they arose out of the accident.

The plaintiff was kept under surveillance for various periods during which his activities were recorded on video tapes, all of which I have viewed. The videos, mainly showing the plaintiff in the street, at his home or in the club, were recorded in August 1985, February, May, June and July 1986, October and November 1987 and August 1988. The evidence does not suggest that the plaintiff was aware that he was under surveillance at any particular time but he claimed that he was told in March or April 1988 that he had been under surveillance.

I turn first to the medical evidence referring in particular to those aspects which it is claimed either cast doubts on the plaintiff's credibility or provide objective corroboration of his complaints.

Mr Binns saw the plaintiff on several occasions in 1983 and 1984, the last being on 13 January 1984. He formed the view that the plaintiff had sustained an injury to his neck which could have been caused in a motor accident of the kind the plaintiff described to him. In 1983 he was of the opinion that the plaintiff's neck had "settled down quite well" and that he was fit to return to light duties. His opinion in January 1984 was that he was not then fit to return to work and that it was impossible to say whether he would suffer from any residual disability. He made no abnormal neurological findings and agreed that there were no objective signs to confirm the plaintiff's complaints. Mr Binns confirmed that x–rays revealed the existence of mild generalised degenerative changes to his cervical spine. He also noted that the plaintiff had told him that he had experienced occasional minor episodes of neck stiffness for many years (ie well before the accident).

A radiologist, Dr Taylor, gave evidence of an analgesic discogram involving the injection of dye and an anaesthetic which he performed on 1 August 1984 with a view to seeing whether it brought about a relief of the plaintiff's symptoms. He found the C56 disc easy to inject, but it did not result in the plaintiff's symptoms being relieved. Dr Taylor said analgesic discograms have gone out of fashion because clinicians were finding the results inconclusive.

A radiologist, Dr Rush, gave evidence that on 17 February 1986 she attempted to perform a discogram on the plaintiff, but due to the presence of osteophytes she was not able to perform a satisfactory examination. On 25 July 1988 she performed another discogram by inserting needles at the C34, C45, C56 and C67 discs. Dr Rush reported that the C56 disc was relatively easy to inject and that according to the plaintiff it reproduced the pain of which he complains. She said that the C67 disc was also relatively easy to inject and that also caused pain, but of a different kind, from that which he usually experienced. Dr Rush had no specific memory of conducting either examination, but she thought that it was possible, although not probable, that she told the plaintiff which particular disc she was injecting and that it was possible that he would be able to feel which disc she was injecting.

An orthopaedic surgeon, Mr Turner, examined the plaintiff on 27 August 1985. The plaintiff complained of a painful neck, pain between his shoulder blades and a sharp pain in the region of his right elbow. The plaintiff denied having had any prior history of pain in his neck. Mr Turner concluded:–

"I would not consider this man's history and examination entirely consistent with the injuries he's supposed to have suffered. He appears to me more severely disabled than one might reasonably expect him to be, bearing in mind the severity of impact and the time that had elapsed since the accident."

The plaintiff placed particular reliance upon the evidence of Dr Jackson, a medical practitioner who has a special interest and experience in chronic pain management. Dr Jackson first saw the plaintiff on 19 January 1984 and thereafter saw him on many occasions. Dr Jackson performed or arranged for others to perform, amongst other procedures, a cervical epidural which involves the introduction of cortisone into the nerve roots which are thought to be causing pain, a differential cervical epidural which involves the injection of neutral, narcotic and counter narcotic substances with a view to determining the extent to which pain has a psychological origin by seeing whether there is a correlation between the patient's reports of pain and the substance then being inserted, nerve root blocks which involve an injection into the joints which are thought to be causing pain and which can serve both a diagnostic and therapeutic function and discograms which involve the injection of dye into discs in such a way that the patient is not aware which disc is being injected and then observing how difficult the disc is to inject which is in itself an indication of degeneration, observing by x–ray the spread of the dye through the disc and determining whether the injection reproduces the pain of which the patient is complaining. Dr Jackson also observed the video films.

I do not overlook that Dr Jackson expressed his opinion in various ways in his reports and in his evidence, but in the end his opinion was that the plaintiff suffered a "whiplash type injury to his cervical spine" in the accident and that "on the balance of probabilities" he would attribute the plaintiff's "ongoing symptomatology" to that injury. When asked at the outset of his cross–examination what he thought was causing the pain and symptoms of which the plaintiff was complaining Dr Jackson said:–

"Well, on the most up to date evidence that I've got, on the basis of the cervical discogram carried out on the 25th of July, and that is something that I've based a – certainly based my most recent opinion on, I would say that the majority of his symptomatology could be related to the injury or the degenerative changes which have occurred at the C5C6 disc."

In making my assessment of the extent to which Dr Jackson's evidence supports the plaintiff's case I particularly take into account:–

1Although in the end Dr Jackson said that viewing the videos did not change his opinion as to the plaintiff's "ongoing complaints" Dr Jackson accepted that the impression he gained from viewing the plaintiff's activities as shown in the video was quite different from that which he had gained from the plaintiff's complaints to him.
2Dr Jackson was unaware that the plaintiff had at various times engaged in activities such as working in the club and playing 8–ball which was information which I find would have been material to the formation of an opinion about the existence and cause of any disability.
3The inconclusive nature of the results from all the procedures arranged by or conducted by Dr Jackson to which I have referred above save for the discogram performed on 25 July 1988, tended to suggest that the C56 disc was not causing the pain from which the plaintiff complained.
4Dr Jackson was unaware that the plaintiff had complained of neck stiffness before the accident. It may be the case that the pre–accident neck stiffness was not of clinical significance, but in view of the fact that the plaintiff obviously thought it of sufficient significance to mention it to Mr Binns and a neurosurgeon Mr Southby it is surprising that in all the consultations he had with Dr Jackson he never mentioned it to him.
5Dr Jackson obviously placed reliance upon the discogram conducted on 25 July 1988 but I take into account the opinion expressed by another witness about the use and value of discograms to which I refer below and I also note Dr Jackson's own acceptance of the proposition that discograms do not provide a conclusive indication of the existence or cause of pain.
6Dr Jackson placed some reliance upon Dr Yeo's studies which for the reasons I give below I am not persuaded provide objective corroboration of the plaintiff's case.
7Dr Jackson's opinion was in part based upon a slight reduction in the triceps and biceps jerk but he acknowledged that what one makes of observations of reflexes is largely a matter of clinical impression and that they are not an infallible guide.
8Dr Jackson agreed that his diagnosis was very largely dependent upon accepting that the plaintiff was telling him the truth.

Dr Gibbs who is a medical practitioner with special expertise and experience in, amongst other things, the management and rehabilitation of those who have suffered sporting and other injuries examined the plaintiff on 14 September 1986 and 5 August 1988. At the first examination Dr Gibbs gained the impression from the plaintiff that he had been involved in a relatively minor collision and as a result suffered not particularly severe symptoms. The plaintiff demonstrated a reluctance to move his cervical spine in any direction, but inadvertently demonstrated his ability to do so in the course of the examination. The neurological examination was normal and no abnormal reflexes were revealed. He found that the extent of the plaintiff's shoulder power was inconsistent with a significant neck injury. He formed the view that the plaintiff was demonstrating feigned disability and some learnt illness behaviour. He formed the opinion after that examination that the plaintiff was no longer suffering from the direct effects of the accident. At the second examination the plaintiff demonstrated restricted neck movement and what Dr Gibbs regarded as "unbelievably" low strength in the grip of his right hand. Amongst other things the plaintiff complained that he was not able to play cards. Dr Gibbs found no abnormality in the plaintiff's reflexes. He formed the view that the plaintiff was not making a full effort in the examination. In what he regarded as a critical part of his examination Dr Gibbs found that although the plaintiff complained of pain when Dr Gibbs examined his neck he did not detect any spasm or other reflex response which he would have expected to have been present had the complaint been genuine. He was certain that the plaintiff's range of movement was much greater than he demonstrated. Dr Gibbs did not attach a great deal of significance to the results of Dr Yeo's studies and said that, even if those studies could be interpreted as revealing a degree of denervation, it was mild and would not necessarily result in the plaintiff having any disability. Dr Gibbs was prepared to accept, on the basis of what he had been told, that the plaintiff initially suffered a whiplash injury and that he may have an injured disc or degenerative changes at C56. However he did not agree that the evidence showed that the plaintiff's symptoms or any disability which he now has were caused by any injury he might have suffered in the accident. Dr Gibbs viewed the video films and regarded them as confirming his opinion about the range of movement of which the plaintiff was capable.

Mr Southby examined the plaintiff on 16 July 1986 and 18 November 1988. On examination Mr Southby found that the plaintiff displayed a "functional weakness of all movements of the right upper limb" by which he explained he meant that he did not regard the plaintiff's movements as providing a true indication of his physical prowess because he did not think that the plaintiff was giving him full support. He found all limb reflexes present and symmetrical. The plaintiff claimed to have sensory loss over areas for which there could be no physiological explanation. Mr Southby concluded that the plaintiff's presentation on 18 November 1988 was "that of a functional overlay rather than of a physical disability" and that there were no objective signs of nerve root involvement. Mr Southby did not regard himself as being in a position to say whether the functional overlay was intentional or unintentional on the plaintiff's part. Mr Southby drew a distinction between the objective aspect of discography which involves observing the way in which the dye injected into the disc appears under x–ray observation and the subjective aspect when the patient is asked when the pain he experiences has been reproduced. Mr Southby said in relation to the latter aspect:–

"... I think everyone would agree that this really places quite a stress on a patient because it's a painful test anyway and it's often very difficult for the person to be absolutely certain that that is the same type of pain."

Mr Southby indicated that the plaintiff had told him that prior to the accident he had every now and again suffered a stiff neck but that it did not bother him particularly.

Two neurologists, Dr Yeo and Dr Hjorth, examined the plaintiff. Dr Yeo examined him on 20 June 1985 and conducted nerve conduction and electromyography or muscle sampling studies on 11 July 1985 and 17 November 1988. The results of the nerve conduction studies were normal on both occasions. The electromyography studies in July 1985 suggested to Dr Yeo that there was a "mild degree of denervation of the biceps and the forearm extensors", which was consistent with a physical abnormality at the C5 and C6 nerve roots which exit where the C5, C6 and C7 discs are located. He conducted similar tests on 17 November 1988 and concluded that there was evidence of "very mild" and "patchy" denervation.

Dr Hjorth examined the plaintiff on 8 November 1988 and conducted nerve conduction and electromyography studies. The nerve conduction studies suggested to him that "there might be a very mild ulna nerve lesion at the elbow", but the electromyography studies did not show any denervation and, in particular did not demonstrate the denervation noted by Dr Yeo. Dr Hjorth went on to observe:–

"There is, of course, a subjective element to the assessment of denervation using muscle sampling and it is possible that one electromyographer might find very mild denervation while another one would not. Even so, I am confident that there could not be any significant degree of denervation present and that denervation and strength must be at least 80% of normal for me to have obtained the results that I did. Put another way, there could not be any significant weakness present with this particular electromyograph pattern."

In assessing this evidence I take into account the following:–

1I am not satisfied that I would be entitled to distinguish between the two opinions on the basis of any differences between the expertise or experience of Dr Yeo and Dr Hjorth.
2Dr Yeo's conclusions were expressed in very qualified terms whereas Dr Hjorth's conclusions were more firmly held.
3As Dr Yeo's ultimate opinion was influenced by the plaintiff's history I must take into account any findings I make about the plaintiff's credibility when I am considering that opinion. In contrast Dr Hjorth took the view that he should conduct the tests as objectively as possible, uninfluenced by clinical results, and that it was up to the court "to put the whole picture together".
4Mild denervation would not necessarily result in pain or disability.
5Mild denervation could be accounted for by causes other than traumatic injury to C5 and C6.
6Even if there were denervation and it could be shown to have been caused by trauma to the spine, direct or indirect reliance would still have to be placed on the plaintiff's evidence before it could be concluded that the injury was caused by the accident.
7Dr Hjorth made one insertion of the needle in each muscle group and took readings at various levels. He said that he would not usually make more than one insertion unless he detected abnormality because of the pain involved and because most muscle conditions are diffuse rather than involving pathology at one particular point. He was also of the view that in order to be significant one should, inter alia, detect fibrillation potentials – which are readings suggestive of denervation – at three sites. Dr Yeo agreed with this statement from a text book:–
"Indeed scanty fibrillation potentials may occasionally be found in normal healthy muscle and pathological significance should therefore not be attributed to them unless they are detected in, at least, three separate sites within the muscles being examined."

Dr Yeo was not able to say that he detected abnormal potentials at more than one site.

In my view the difference in the opinions held by Dr Yeo and Dr Hjorth lies, in part at least, in their interpretation of the significance of the readings obtained. Had Dr Hjorth taken samples from another site he might have obtained the same result as Dr Yeo, but unlike Dr Yeo he would not have regarded it as significant.

I am not persuaded that the evidence of the muscle sampling studies provides objective independent corroboration of the plaintiff's case.

A neurosurgeon, Mr Liddell, examined the plaintiff on 14 August 1986, 9 April 1987 and 28 July 1988. He also viewed the videos taken of the plaintiff. After the first examination Mr Liddell reported "I believe that Mr Popovic has sustained an accelerationdeceleration injury to his cervical spine, and I believe that his ongoing symptoms are consistent with that diagnosis" and Mr Liddell said that in essence he still adheres to that opinion. Mr Liddell said that the mere demonstration of the presence of a morphologically abnormal disc was not of great significance but that the discogram conducted on 25 July 1988 provided "reasonable evidence" that the disc was "quite likely" damaged at the time of the accident and has remained as "a cause for his ongoing symptoms". However, in addition to the guarded terms in which he expressed his opinion, I must also assess Mr Liddell's opinion about the significance of the discogram in the light of his acceptance of the proposition that there were really no objective signs of what the consequences of the original injury were. Further, and more significantly, Mr Liddell also said in his evidence:–

"... the fact that that disc, when injected with dye, seemed to reproduce his pain, a situation that has been pretty consistent throughout his history, as I understand it, since the early stages post injury. I think that's reasonable evidence that that disc was quite likely damaged at the time of the accident and has remained as a cause for his ongoing discomfort."

The results of the discograms before the discogram of 25 July were at best equivocal. The above statement by Mr Liddell is not entirely clear, but if he was under the impression that previous discograms had consistently reproduced the plaintiff's pain then to that extent the basis upon which he formed his opinion was incorrect. Mr Liddell said that the plaintiff had said to him that "he had not experienced any neck discomfort" prior to the accident. Mr Liddell also expressed the opinion that there was "no question about" the fact that on a number of occasions the plaintiff had exhibited behavioural signs which were not explicable on physical grounds and that he had "some concern about that". However he expressed the conclusion that those signs:–

"... are not incompatible with the chronic pain syndrome and the depression and the other factors that go with that. And I have found no definite evidence of malingering – or – in fact, I have not found anything that really makes me – would lead me to diagnose malingering."

Mr Liddell did not think that the videos showed the plaintiff as a normal person, particularly when one had regard to his slow deliberate movements and the absence of spontaneous rapid movements. However he also accepted that the video showed the plaintiff bending and comfortably moving his neck within the ordinary range in ways which were not in accord with his demonstrations on examination and that:–

"I think what one can say is that when under scrutiny his movements are greatly reduced compared to what they are on occasions when he is not aware of being under scrutiny."

Mr Duffy, a neurosurgeon, examined the plaintiff on 23 November 1987 and 4 August 1988. After the first examination Mr Duffy concluded that he found the plaintiff "difficult to assess". He noted that the plaintiff complained of very significant symptoms and disabilities but that apart from degenerative changes in the neck as shown on the x–rays which need not necessarily be associated with symptoms there was "nothing to account for his ongoing symptoms". He noted that the plaintiff's symptoms following the accident appear to have been "fairly minor", that he felt that the plaintiff was not co–operating fully with Mr Duffy's investigation of the power of his right arm, that there were aspects of the plaintiff's behaviour and complaints suggesting that his complaints had an hysterical origin and that his complaints of anaesthesia on the right side could have had no organic basis. In the end, although he was very suspicious about how genuine he was, Mr Duffy felt that he should give the plaintiff the benefit of the doubt and concluded that "unless it can be demonstrated that Mr Popovic is exaggerating his symptoms" he "would have to attribute his symptoms to a jarring injury at the time of the accident".

After viewing the video films and examining the plaintiff again Mr Duffy concluded in a report:–

"Having reviewed Mr Popovic on two occasions and having viewed video tapes of his activities, it is my firm opinion that Mr Popovic is grossly exaggerating his symptoms and his signs. On this basis I believe it could well be that he has no significant organic condition which could be attributed to a motor vehicle accident on 7th June, 1983. In my earlier report I said that 'at the best I feel that there is a significant functional element in Mr Popovic's ongoing symptoms'. My opinion now is that Mr Popovic is specifically exaggerating his symptoms and signs and if this is the case, the functional element of his symptoms may be minimal."

In his oral evidence Mr Duffy expressed the view that the plaintiff's complaints and demonstrations of disability were "completely and totally incompatible" with the activities which the video showed him capable of. Mr Duffy accepted that videos taken on 5, 6 and 7 August 1988 showed the plaintiff as having significant neck problems consistent with the way in which he had presented himself, although even those films he thought showed "incompatibilities" in his behaviour of which he gave examples. Mr Duffy also agreed that depressed triceps and biceps reflexes can be regarded as objective signs of lesions at the C6/C7 and C5/C6 levels respectively, but he also noted that their significance depends upon a subjective interpretation by the examiner. He was of the opinion that discograms are not a useful diagnostic procedure in cases such as the plaintiff's and that in the United Kingdom they are never used and in the United States their use is diminishing. Mr Duffy's opinion was not affected by the results of the studies conducted by Dr Yeo. He said that he would never use this sort of investigation in circumstances like this because the data it provides needs to be interpreted in a clinical context. He said that although the absence of signs of denervation would not exclude the possibility of a nerve root problem, the presence of such signs would not necessarily demonstrate the presence of problems which were relevant to the plaintiff's complaints. Mr Duffy said that the reduction of power which the plaintiff demonstrated on the first examination was so marked that it would have been incompatible with an ability to play billiards or to even manipulate playing cards. However I note that in a video taken on the 23 November 1987 – the day upon which Mr Duffy examined him – the plaintiff was shown playing cards for at least 12 minutes.

I accept the submission made by counsel for the plaintiff that in assessing Mr Duffy's general conclusions I must take into account that in contrast say to Dr Jackson, Mr Duffy only saw the plaintiff twice. However I must also take into account that the fact that Mr Duffy had not seen the plaintiff before would also mean that Mr Duffy examined the plaintiff with no pre–conceptions. As well that submission would not affect the weight of Mr Duffy's particular opinions about internal inconsistencies he observed in his examinations of the plaintiff and the inconsistencies he observed between the results of his examinations and what he saw on the video. Further, nothing put to Mr Duffy in cross–examination and nothing put to me would justify my rejecting his evidence that discograms are not universally accepted as useful diagnostic procedures in cases like this.

A psychiatrist Dr Pargiter saw the plaintiff on three occasions in June 1987 and on 3 August 1988. Dr Pargiter understood that the central issue in the case was whether the plaintiff was malingering. Dr Pargiter said that malingering was not a psychological diagnosis and accepted that the skilled malingerer can deceive psychiatrists just as he can deceive anyone else. He thought that the plaintiff had symptoms which were not physically explicable but was also of the opinion that there was no evidence of malingering and that it was excluded on the basis that there are other adequate diagnostic explanations for his condition. He held, with some reservation, that the plaintiff was suffering from depression. He also thought that the constant amount of medical treatment which the plaintiff had received could have induced a degree of psychological iatrogenesis. Dr Pargiter was of the opinion that there was no evidence of functional overlay which he defined as the conscious or unconscious exaggeration of symptoms and disabilities. Dr Pargiter recognised that the plaintiff had been evasive and not open to him about some aspects of his life which Dr Pargiter regarded as potentially relevant including in particular the fact that he had been imprisoned, allegations which had been made by an insurance company that he was performing physical activities which he claimed he was not capable of performing and the fact that he had been running the club. However in the end Dr Pargiter adhered to his opinion notwithstanding that the plaintiff had not been open about those matters.

I turn now to other evidence which it is claimed either tends to corroborate the plaintiff's evidence or suggests that he is either an unreliable or a dishonest witness and that his claim is not genuine.

Mr Goldfinch was employed by the second plaintiff as its workers' compensation officer until November 1984. He saw a good deal of the plaintiff during the year following the day of the accident. He said that the plaintiff was a hefty man but that over that period he "went downhill, his whole body seemed to be getting weaker and collapsing on him". However it is not part of the plaintiff's case that he has suffered muscle wasting as a result of his injury and I would have thought that the changes described by Mr Goldfinch would have been equally consistent with the changes one would have expected in a man who had suddenly gone from heavy work as a miner to complete inactivity. An emotional concern for the welfare of his children which was displayed by the plaintiff to Mr Goldfinch could hardly be regarded as corroborative.

Counsel for the plaintiff referred to the evidence of a Mr Stanic and a Mr Samoukovic but in the end did not place much reliance on them as corroborative witnesses. My findings about an incident relating to a trip to Rosebery which I record below cast serious doubts on Mr Stanic's credibility and I found Mr Samoukovic's evidence about the complaints which he claimed the plaintiff had made to him when he picked him up in his taxi at the airport to be quite incredible.

Reliance was placed on Mr Joncevski as a corroborative witness. But the evidence relied on largely comprised self serving complaints by the plaintiff and evidence which was only marginally supportive of the plaintiff's claim such as the fact that the plaintiff took medication and did not come to the club because he said he was sick. As well the impression which Mr Joncevski attempted to convey to me of the amount and the type of work which the plaintiff did in the club was different from that which the plaintiff conveyed to me in his evidence. In particular Joncevski said that the plaintiff did not do any cooking whilst the plaintiff said that he did.

Mr and Mrs Mandic confirm that the plaintiff took tablets, slept poorly, made complaints, walked stiffly and appeared to be in pain. However both were witnesses whom I find were sympathetic to the plaintiff and Mr Mandic was not a convincing witness. Both painted a picture of inactivity and inability to engage in physical activity which was shown by the plaintiff's own evidence, particularly in relation to what he did in the club, to be quite incomplete.

A Mr Grgurevic gave evidence of seeing the plaintiff sleeping on a couch on occasions and confirmed that he had not seen him engage in strenuous activity. He also confirmed that the plaintiff complained to him of his pain and his incapacity and confirmed that he took medication.

The plaintiff's wife gave evidence of having to help the plaintiff to put on his coat or when he has a bath. She spoke of his interrupted sleep, his taking of medication and his inability to do much physical work. I am influenced by the fact that Mrs Popovic was fairly obviously a partial witness and that, like the plaintiff, she initially attempted to convey to me that the plaintiff was admitted to the Royal Hobart Hospital on 20 June 1988 as a result of his engaging in physical activity when in fact it was because he was suffering from a small bowel obstruction. It also seemed to me that Mrs Popovic was being evasive in her evidence about the number of occasions upon which she saw the plaintiff getting wood.

A Mrs Watts confirmed that during the period September to December 1985 she boarded in the same house as the plaintiff. She said that he suffered from insomnia, appeared to be lethargic and depressed and appeared to be having some sort of problem with his hands. She said that his neck appeared stiff, although his movements became more normal towards the end of the year. The most strenuous activity she saw him engage in, other than walking, was washing the car on one occasion.

An occupational therapist Mrs Nissan gave evidence of her opinion of the plaintiff's disabilities after viewing the videos. She described her reaction to various sequences and expressed her opinion that amongst other things "there seems to be consistency" between the activities she saw the plaintiff performing and the limited range of motion described in medical reports she was shown, that no "extreme neck movements" were detected and that in some of his movements he appeared to be compensating for limitation in his capacity to move his neck. In assessing Mrs Nissan's opinion I take into account that I am in as good a position as she is to draw inferences from the video, that having heard the plaintiff and the doctors give evidence I am in a better position than she is to form an assessment of the extent of the disability of which the plaintiff complains and that the plaintiff is complaining of a much greater degree of restriction than merely not being able to make the "extreme" neck movements referred to in her report.

A psychologist Mrs Laver interviewed the plaintiff on 14 March and 4 April 1988 and administered a clinical analysis questionnaire. She concluded, amongst other things, that the plaintiff was depressed, obsessed with his physical state and that at no stage did she feel that he was malingering or gain an impression of dissimulation. I have more materials before me than Mrs Laver had and, although her opinion is not unhelpful, I do not regard her as being in a better position than I am to reach a conclusion as to the plaintiff's credibility.

Another occupational therapist Mrs Fysh gave evidence in which she expressed her views about the plaintiff's disabilities and their cause, his employment prospects and her views about the activities she observed the plaintiff performing in the video. I make the same comments about her impressions of the video as I did about Mrs Nissan's evidence and would add the comment that I gained the impression that Mrs Fysh displayed some reluctance to accept possible constructions of the plaintiff's activities which might have indicated that he was less restricted than he claimed he was. I do not think I would be entitled to regard Mrs Fysh's views about causation as advancing the medical opinions I have heard.

I turn to some aspects of the plaintiff's evidence which it is submitted have a particular bearing on his credit.

The plaintiff gave evidence and demonstrated in court that he could not bend forward to a greater extent than what counsel agreed could be described as a quarter bend forward with his fingers reaching just below the knee. In response to questions in cross–examination as to whether his capacity to bend had changed during the period since the accident the plaintiff said that at "one stage" he could bend a couple of inches more but the pain he felt on bending had not changed at all. Subsequently in his cross–examination the plaintiff prevaricated about whether he had in fact given that evidence and attempted to qualify it by emphasising that his condition fluctuated. Dr Jackson said that the plaintiff had never made any such complaint to him and that it would certainly have surprised him if he had. Bearing in mind the number of attendances the plaintiff had on Dr Jackson and the extensive histories Dr Jackson had taken from him I find it incredible that if this complaint which the plaintiff made to the court were genuine that he did not make it to Dr Jackson. The video showed the plaintiff bending over to an extent and in a manner which was inconsistent with his evidence and the demonstration he gave in court on, amongst other occasions, 10 July 1986, 11 July 1986, 26 October 1987 and 2 November 1987. Mr Liddell also agreed that the video showed that the plaintiff could readily bend to the ground. I accept that it has never been part of the plaintiff's case that he suffered any injury to his lumbar spine, but that does not detract from the adverse inferences which can be drawn from the difference between the plaintiff's claims about his incapacity to bend and his actual capacity to do so.

I find that, although he later attempted to resile from the evidence he had given, the plaintiff initially attempted to bolster his case by falsely claiming that he was significantly restricted in his ability to bend his back.

The plaintiff initially attempted to convey to me, or, at the very least, was prepared to acquiesce in the suggestion, that on 20 June 1988 he was admitted to the Royal Hobart Hospital because of a flare up of his neck and shoulder symptoms following physical activity, whereas in fact he was admitted because he was suffering from a small bowel obstruction.

I heard a good deal of evidence about a journey in a motor vehicle made by the plaintiff from Hobart to Rosebery and back in July 1984. Although the possibility which I find is raised by that evidence that the plaintiff might have driven the motor vehicle himself would be relevant to the issue of his disabilities the main significance of the evidence lies in the bearing it had on the plaintiff's credit.

The plaintiff and Mr Stanic gave evidence that Mr Stanic had driven him from Hobart to Rosebery and back and that on the return journey they were involved in an accident with a motor vehicle driven by Mr Joncevski. Counsel for the defendant submitted that all three were involved in a conspiracy to defraud and that in fact the plaintiff drove Mr Joncevski's car and was involved in a single vehicle incident. I do not propose making concluded findings about that submission but shall confine myself to making those findings which have a particular bearing on my assessment of the plaintiff's credit.

The plaintiff gave three versions of this incident:

1Mr Stanic drove the plaintiff from Hobart to Rosebery and back on the same day during the period Monday 2 July to Friday 6 July inclusive.
2Mr Stanic drove the plaintiff to Rosebery on Friday 6 July and back on Saturday 7 July and the plaintiff slept in Mr Stanic's room at Rosebery on the Friday night.
3Mr Stanic drove the plaintiff from Hobart to Rosebery on Thursday 5 July and back on Saturday 7 and the plaintiff slept in a Mr Zulj's room on the Thursday and Friday nights.

The plaintiff consistently said that the accident occurred on the return journey, which on versions 2 and 3 would have meant that it occurred on Saturday 7 July, whilst on version 1 it must have occurred on a day other than Saturday 7 July. The plaintiff gave evidence that the accident occurred in the morning, but in a statement to a solicitor he indicated that it had occurred in the evening. These were not the only internal inconsistencies in the plaintiff's evidence.

On the basis of independent evidence I find that the plaintiff called on Mr Goldfinch on 5 July 1984 and on the basis of other independent evidence given by a supervisor and a timekeeper employed by Mr Stanic's employer, whose evidence was not seriously challenged, I find that Mr Stanic worked at Tullah between about 7.30am and 4.30pm on Monday 2 July to Friday 6 July 1984 inclusive. I reject Mr Stanic's half hearted attempts to explain the discrepancy by saying that he must have been on "sick pay or something like that".

The internal contradictions in the plaintiff's evidence were such as to demonstrate without more that two of the above versions were untrue. The independent evidence demonstrates that insofar as it is claimed that Mr Stanic drove the plaintiff from Hobart to Rosebery on a day during the period 2 July to 6 July inclusive no version is true.

Counsel for the plaintiff did not make submission with a view to persuading me that I should not make the above findings or draw the above conclusions. However counsel submitted that the events occurred a long time ago and it would not be surprising if the plaintiff were confused about details such as dates and times. Counsel further submitted that the plaintiff panicked when he realised he had made a mistake and attempted to reconstruct what had happened. I accept those submissions but I also find that the plaintiff had ample time and several opportunities during the course of his long cross–examination to consider what the true position was and that his evidence about this incident could not be dismissed as hasty or thoughtless responses to questions in cross–examination.

I am satisfied that the plaintiff adapted his evidence about this incident as he went along so as to make it accord with what he thought was going to be proved by other oral or documentary evidence and that he gave evidence about the incident which he either knew was untrue or at the very least about the truth of which he was quite indifferent.

The plaintiff admitted that he played 8–ball or snooker in the club. When asked how he was able to do so in the light of the disabilities which he claimed to have, the plaintiff said it caused him difficulties if he had to play a shot sharply or across the table, or if he had to put pressure on one hand and stretch with the other when playing a shot or if he had to look along the cue but raise his head to see the ball. He said that he was able to cope with these difficulties by not bending over the cue and by more or less playing standing erect. The video shows the plaintiff playing snooker or 8–ball on 20 November, 25 November and 30 November 1987. Many of the shots he played are obscured, but there is no doubt that the plaintiff played a number of shots in an apparently normal manner and in particular on 20 November the plaintiff is obviously playing shots with his head well down and his left arm extended well forward whilst holding the cue in his right hand. I find the evidence which the plaintiff gave about the difficulties he experienced when playing snooker and his evidence about having to play snooker whilst standing more or less upright was untrue.

Broadly speaking my own observations of the videos have led me to conclude, as Mr Duffy did, that the activities which the plaintiff is seen undertaking in the video are incompatible with his complaints. For example, on 23 November 1987 when Mr Duffy examined the plaintiff he moved slowly, dressed and undressed slowly, held his head stiffly and grimaced with pain when he moved his neck. However, video sequences which showed the plaintiff playing snooker or 8–ball and engaging in other activities on 26 October 1987, 20 November 1987 and 30 November 1987 showed the plaintiff moving his head in an apparently relaxed way which was quite inconsistent with those complaints.

As a result of an application he had made in 1984 the plaintiff was granted an invalid pension in January 1985 on the basis that he was 85% disabled. In mid 1987 he was told that the pension would cease and he appealed to the Social Security Appeals Tribunal. At the time of the hearing on 3 December 1987 the plaintiff admitted that he had been asked what he was doing at the time and about his ability to work, but failed to disclose to the Tribunal that he was a partner in the club and was working in it. His explanations to this Court for his omission to disclose to the Tribunal what was obviously a material matter included that he was not asked about it and that he was still making up his mind whether to take over the club. The first assertion in my view conflicts with his earlier answer and, even if the latter assertion were true, I find it unconvincing as an explanation for his failure to disclose to the Tribunal what he was doing on 3 December 1987. In another part of his evidence the plaintiff agreed that he did not tell the Department of Social Security that he was working at the club and volunteered the explanation: "I didn't have enough money to survive" not, it should be noted that he did not think he was under any obligation to tell the Department, or that he did not regard what he was doing as work.

Counsel for the plaintiff submitted that in part at least the plaintiff's failure to disclose the fact that he was working at the club was because he did not regard his activities at the club as significant and possibly also because of a distrust of officialdom. I am not persuaded that either explanation is convincing. Further, even if there were some substance in the second explanation it would not be sufficient to overcome the doubts that this part of the plaintiff's evidence casts upon his credibility because the end result is that for whatever reason the plaintiff did not make full disclosure to the Tribunal.

Evidence was given about an incident in the club relating to a man named Luka which was relevant, both as to credit as well as to the issue of the plaintiff's physical capacity. The plaintiff initially denied that he had had any clash with Luka, but as it is not clear what he meant by "clash" I do not attach much significance to that. However he did say that Luka was one of a number of people with whom he had argued and who he told to leave because they were taking drinks from the refrigerator without paying for them. The plaintiff denied physically forcing Luka out of the club and denied pushing him against the wall. The plaintiff's own witness Mr Joncevski gave evidence of an incident in the club in which Luka laughed at the plaintiff, whereupon the plaintiff grabbed him and pushed him against the wall so that he fell down. Mr Mandic who was also called by the plaintiff recalled an incident when the plaintiff told Luka to leave because he was playing music too loudly on a cassette player. However he denied that any physical force was used and said that Mr Joncevski could not have seen the incident. This incident was only a peripheral matter and there is no need for me to make any conclusive findings about it. However, even allowing for the possibility that the witnesses were describing three different incidents, acceptance of the evidence of either Mr Joncevski or Mr Mandic would lead to the conclusion that the plaintiff was attempting to mislead the court when he said that the only incident involving Luka was the one about which he gave evidence.

Other matters which reflect adversely on the plaintiff's credit and cast doubt upon the genuineness of his claims are:–

1In April 1985 the plaintiff was provided with a walking stick at his request, although Dr Jackson could not see any reason why he would have needed one.
2The videos and the medical examinations show that the plaintiff's complaints to the doctors and his evidence to this court convey a false impression of his general condition.
3The plaintiff made conflicting statements to doctors as to whether or not he had any neck pain or stiffness before the accident.
4The plaintiff failed to disclose to any doctor or to Mrs Laver or Mrs Fysh that he was or had been working at the club.
5To varying degrees a number of medical witness who examined the plaintiff had reservations about his complaints.

The foregoing findings and summaries do not cover all the evidence which I have heard but relate particularly to the plaintiff's credit and the question of the extent and the cause of any disabilities or pain which he might have. I should also add that the findings I have made do not exhaust the bases upon which the defendants submit that I should not accept the plaintiff's evidence but I do not find it necessary to explore them any further.

I am not prepared to accept the plaintiff's evidence. In addition to the specific matters which reflected adversely on his credit to which I have already referred, his demeanour in the witness box also led me to seriously doubt the reliability of his evidence. Whilst making full allowance for his linguistic limitations, his tendency to prolixity and the possibility that he did not fully understand some questions, I am satisfied that the plaintiff deliberately attempted to evade giving direct answers to questions which he thought might be embarrassing to his case and that he was prepared to adapt his evidence to suit his own purposes. I find that the plaintiff attempted to mislead this Court and the doctors who examined him as to the disabilities and the pain from which he claimed and claims to be suffering.

The medical witnesses were of the view that to a very large extent their opinions depended upon whether what the plaintiff told them of his history and his complaints was true and my own assessment of the foundations of the opinions of those witnesses has led me to the same conclusion. I do not regard the evidence given by the lay witnesses called by the plaintiff as strongly corroborative. The medical evidence which was not dependant on the truth of the plaintiff's assertions was equivocal and does not persuade me that there are neurological or physiological signs which show that the plaintiff is suffering from any disability arising out of the accident.

I do not positively exclude the possibility that the plaintiff is currently suffering from some disability and pain which affects his neck, but even if that is the case, in order to be satisfied that it was caused by the accident I would have to place a degree of reliance upon the plaintiff's evidence which upon my assessment of his credibility as a witness I am not prepared to place.

The absence of any evidence of significant muscle wasting or severe sensory loss militates against any finding that the plaintiff suffered permanent nerve damage. However I cannot positively exclude the possibility that if the plaintiff does have some current pain or disability his symptoms are either iatrogenic in origin, arise out of nerve root involvement, were caused by psychological factors or are a part of a chronic pain syndrome which could be said to be directly or indirectly attributable to the accident. But of course the fact that a particular factor cannot be excluded as a possible cause is not sufficient to affirmatively demonstrate that it is in fact a cause.

I recognise that in order to establish his case it is not essential for the plaintiff to demonstrate some specific physical or psychological cause for his disability and pain. If I were able to draw an inference from the circumstances which I find proved that whatever pain or disability he may have arose out of injuries sustained in the accident then it would be open to me to find for the plaintiff, notwithstanding that I am not able to make specific findings about the exact cause of that pain or disability. But because I am not able to place reliance on the plaintiff's evidence I am not persuaded that I should draw such an inference in this case.

For the foregoing reasons I am not satisfied that the plaintiff has discharged the burden of showing that it is more probable than not that he has any disabilities or is suffering from any pain caused directly or indirectly by injuries he received in the motor vehicle accident on 7 June 1983.

However, as I have already indicated, I am satisfied that on 7 June 1983 the plaintiff was a passenger in a motor vehicle when it was struck from behind and nothing put to me and nothing in the cross–examination of the plaintiff persuades me that I should reject his evidence that as a result he struck his head on the back shelf of the car. I am satisfied that that is the sort of incident which can give rise to a whiplash type injury. The evidence of the complaints which the plaintiff made and the medical attendances which he had in 1983 was largely unchallenged and the considerations which have led me to reject the plaintiff's claim that he has a permanent disability do not apply with the same weight to the evidence relating to the months following the accident.

I am satisfied on the balance of probabilities that the plaintiff suffered some injury as a result of the accident and that as a result he suffered pain and disability for a period of time, but I am not satisfied that the plaintiff has affirmatively demonstrated on the balance of probabilities that he has suffered any long term residual disability as a result of the accident. I turn to a consideration of the extent of the injury and disability which I am satisfied resulted from the accident.

The plaintiff's progress during 1983 is revealed by the following opinion given by Mr Binns as the result of his examinations of the plaintiff on the dates shown:

20/6/83 – diminished range of movement of the neck with pain at the extremes;
18/7/83 – still some pain but neck improving; fit for light duties;
8/11/83 –light duties tended to make neck and arms ache; good range of movement of neck but with pain.

However the plaintiff's complaints to Mr Binns and Dr Jackson suggest that early in 1984 that steady improvement in the plaintiff's condition ceased and that he started to deteriorate. In January 1984 Mr Binns reported that the plaintiff had not improved with physiotherapy, that he had a stiff neck with pain on movement, that he was making very slow progress and that he was unfit for work. In the same month Dr Jackson reported that the plaintiff had marked limitation of cervical movement in all directions. In April 1984 Dr Jackson found that the plaintiff had severe restriction of cervical movements in all directions and in June 1984 he thought that the plaintiff's symptoms were essentially the same as before and that he was totally incapacitated for work. However the commencement of this alleged deterioration in the plaintiff's condition coincides with the beginning of the history and the emergence of those considerations which have led me to reject the genuineness of the plaintiff's complaints. Those that related to 1984 include the following:
1There were no neurological or objective signs which could account for the reversal of the improvement of the plaintiff's condition which had been taking place.
2In January 1984 a physiotherapist reported to Mr Binns that he thought that the plaintiff "could do more for himself in his rehabilitation".
3The plaintiff failed to mention to Dr Jackson in January 1984 that he had experienced neck stiffness before the accident, although he had thought it to be of sufficient significance to mention to Mr Binns only a few months before.
4In April 1984 the plaintiff complained that a TENS machine which he had been using made him "go all stiff" which Dr Jackson regarded as "very unusual" and Mr Liddell regarded as "hysterical" and for which there is no physical explanation.

5The plaintiff claimed that being driven in a motor vehicle as a passenger caused him trouble and it can be inferred that it would cause him even more trouble to drive himself. However, when being pressed in cross– examination about the Rosebery trip in July 1984 the plaintiff volunteered that he had driven himself from Hobart to Rosebery and back in June 1984, a fact which he had not before revealed to the court or to Dr Jackson. I find on the basis of Mr Goldfinch's notes that it is probable that the date of this trip was 12 June 1984. I take judicial notice of the length and tortuous nature of the highways between Hobart and Rosebery.

Although when viewed in isolation the foregoing factors might not justify a finding that the plaintiff's complaints after 1983 were not genuine, when they are viewed in conjunction with the findings I have made about the evidence which the plaintiff gave and the complaints about his condition which he made thereafter I have no confidence that I can rely upon what the plaintiff told this Court, Mr Binns and Dr Jackson as to his condition in 1984 and I therefore cannot say that I am affirmatively satisfied that the plaintiff's condition deteriorated after 1983 in the way in which he claimed that it did.

I am satisfied that on the balance of probabilities that the plaintiff suffered some soft tissue injury as a result of the accident. There was not much exploration in the evidence of how long the effects of such an injury might be expected to last. Mr Southby thought that the materials available to him, including the history of what the plaintiff did after the accident, would suggest that any injury which the plaintiff received was not particularly severe and Dr Gibbs expressed the opinion that he would expect the signs and symptoms of such an injury to clear up in six months or so. Although I do not accept that the plaintiff's condition deteriorated in 1984 in the way in which he claimed I am prepared to accept that the plaintiff continued to suffer some pain and disability in 1984.

I am satisfied that the plaintiff is entitled to recover damages on the basis that he was injured and disabled in 1983 and continued to be disabled and to suffer some pain in 1984 but that I cannot say that I am satisfied that it is more probable than not that the pain and disability continued for the whole of that year. Although I am not suggesting that at a particular moment in 1984 the effects of the injury suffered by the plaintiff suddenly disappeared, it is necessary for the determination of the plaintiffs' claims to fix the point beyond which I cannot say that I am satisfied that the plaintiff has discharged the burden of proof which rests upon him of showing that he continued to be affected by the injury. Doing the best I can on the evidence before me I determine that date as 12 June 1984.

In view of the payments made by the second plaintiff to the plaintiff which the plaintiff concedes must be deducted from any sum that might otherwise have been payable I am not satisfied that the plaintiff has demonstrated that he is entitled to any award of damages for past economic loss sustained during the period from 7 June 1983 to 12 June 1984. No special damages are claimed. For the plaintiff's pain, suffering and inconvenience in 1983 and 1984 I assess general damages in the sum of $5,000.

By their defence the defendants admitted that at the time of the accident the second defendant was the owner of the motor vehicle being driven by the first defendant but did not admit that the first defendant was acting as the servant or agent of the second defendant. The defendants have not demurred to the plaintiffs' submission that upon the evidence before me and in the absence of any evidence or submissions to the contrary I should draw an inference that the first defendant was acting as the servant or agent of the second defendant. I hold that the second defendant is vicariously liable for the first defendant's negligence.

The second plaintiff's claim is for the recovery of indemnity pursuant to s8H of the Workers' Compensation Act 1927 in respect of compensation paid by it to the first plaintiff.

It is admitted that at the time of the accident the plaintiff was employed by the second plaintiff and that the accident occurred whilst the plaintiff was travelling between his place of employment and his place of residence. It is also admitted that "the second named plaintiff has met claims of the first named plaintiff for the payments and expenses particularised as being due under the Workers' Compensation Act for injuries he suffered in the subject accident. The defendants do not admit that the first named plaintiff suffered injuries in the subject accident which entitled him to any payments or expenses under the Workers' Compensation Act".

Section 8H(1) provides:–

"(1) Subject to this section, where an injury for which compensation is payable to a worker is caused under circumstances creating a liability in some person other than the employer to pay damages in respect thereof to that worker the employer may recover indemnity against that person in respect of the compensation paid by the employer to the worker in respect of that injury."

The second plaintiff carries the burden of proving, inter alia, that the compensation it seeks to recover was paid in respect of an injury in respect of which the defendants had a liability to pay damages.

The second named plaintiff argued that no evidence had been led by the defendants to suggest that the plaintiff has been fit to return to the type of work which he was performing prior to the accident. But the second named plaintiff carries the burden of proof and for the reasons which I have given I am not satisfied that it has been affirmatively demonstrated that at any time following 12 June 1984 the first plaintiff was totally or partially incapacitated for work as the result of an injury in respect of which the defendants were liable to pay damages.

I assess the second named plaintiff's claim in the sum of $36,140.54, made up as follows:–

Weekly payments paid until 29 May 1984             $27,646.00
Proportion of amount paid in redemption

of weekly payments attributable to the

period 30 May to 12 June 1984  1,373.00
Medical and other expenses paid to 12

June 1984  7,121.54
$36,140.54

There will be judgment for the first named plaintiff against the defendants for $5,000. There will be judgment for the second named plaintiff against the defendants for $36,140.54.