Rajic v KUTLE

[2010] WADC 10

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   RAJIC -v- KUTLE & ANOR [2010] WADC 10

CORAM:   STONE DCJ

HEARD:   15-18 SEPTEMBER 2009

DELIVERED          :   25 FEBRUARY 2010

FILE NO/S:   CIV 1852 of 2008

BETWEEN:   BORO RAJIC

Plaintiff

AND

TOMISLAV KUTLE
First Defendant

HARILAOS BARBAS
Second Defendant

Catchwords:

Motor vehicle accident - Damages - Award does not reach threshold - Turns on own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Claim dismissed

Representation:

Counsel:

Plaintiff:     Mr D R Clyne

First Defendant             :     Mr B E Lawrence

Second Defendant         :     Mr B E Lawrence

Solicitors:

Plaintiff:     Simon Walters

First Defendant             :     Lawrence & Howell

Second Defendant         :     Lawrence & Howell

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

Nil

STONE DCJ: 

Introduction

1. Mr Boro Rajic commenced working as a shopping trolley collector at a supermarket in Inglewood in early December 2006. He was almost 51 years of age and married with two young children.

2. On 18 December 2006 Mr Rajic was collecting shopping trolleys in a parking bay when a motor vehicle struck his lower left leg whilst reversing into a car parking bay.  The following day Mr Rajic saw his family doctor, Dr Ponos who diagnosed a soft tissue injury. She gave him a few days off work.

3. A day or so after returning to work Mr Rajic was involved in another motor vehicle accident on 22 December 2006.  His car had stopped behind a bus which was picking up passengers from a bus stop.  The car was stationary when it was struck from behind by another motor vehicle.  Mr Rajic suffered soft tissue injuries and he was hospitalised overnight.  When Mr Rajic saw Dr Ponos, about a week later, he complained of neck pain, back pain, recurring headaches, difficulty sleeping and nausea.

4. Throughout 2007 and 2008 Mr Rajic presented to Dr Ponos in a depressed and invalided state and she certified him unfit for work.  Mr Rajic was referred to various medical practitioners who found no evidence of physical injury to explain the extent of his physical disability and complaint of significant pain.

5. In late March 2007 Mr Rajic was covertly filmed over two days working as a shopping trolley collector at the Inglewood supermarket.  Later in 2007 he was covertly filmed driving his motor vehicle and walking to and from various places.  In May, June and July of 2009 Mr Rajic was covertly filmed delivering pamphlets to suburban houses on a door to door basis.

6. Mr Rajic claims damages for pain and suffering, loss of amenity, past and future loss of earnings and future medical treatment arising out of the two accidents.

Issues not in dispute

1. The insurer for the two motor vehicles that collided with Mr Rajic admitted liability for the accidents.

2. Mr Rajic's counsel conceded the non‑pecuniary loss assessment for injury arising out of the first accident would not exceed the threshold under the Motor Vehicle (Third Party Insurance) Act 1943 and I do not need to assess damages for that accident.

3. The insurer advanced $6,020.20 to Mr Rajic to compensate him for past loss of earning capacity arising out of the second accident up to and including 28 March 2007 when he was first filmed working as a shopping trolley collector.

4. I have not been asked to assess Mr Rajic's past medical treatment expenses.

Issues in dispute

1.The nature and extent of Mr Rajic's physical and mental injuries.

2.The extent of Mr Rajic's residual disability.

3.Whether Mr Rajic has been able to return to work and his work capacity.

4.Mr Rajic's past loss of earning capacity from 29 March 2007 to trial.

5.Mr Rajic's loss of future earning capacity.

6.Mr Rajic's future medical treatment.

7.General damages.

1. The nature and extent of Mr Rajic's physical and mental injuries

Mr Rajic

1. On 22 December 2006 Mr Rajic was returning to work after taking a lunch break.  He stopped his car behind a bus which was picking up passengers from a bus stop.  Suddenly his car was struck from behind.  He hit his head on the steering wheel and momentarily lost consciousness.  He was taken by ambulance to Sir Charles Gairdner Hospital.  He was there overnight for tests and x‑rays.  When discharged he was given painkillers and advised to see his doctor.

2. Mr Rajic felt pain and a horrible headache whilst waiting for the ambulance.  About two to three hours later he felt pain in the back, neck and kidneys.  He started having horrible headaches and throwing up.  The pain increased in his back, back muscles and neck whilst he was in hospital.  He described the headache as horrendous.  He still suffers from constant headaches and nausea.

3. In the weeks following the accident the pain made him quite nervous.  He could not sleep and he could not sleep with his wife.

4. Since then there have been family problems.  He gets very irritable and he cannot tolerate his children when they are jumping around or being loud.  He has been prescribed medication for his nervousness and sleep problems.

Medical evidence

Dr Ponos

1. When Dr Mirjana Ponos first saw Mr Rajic following the accident he complained of generalised aches and pains, recurrent headaches, neck pain and back pain. Dr Ponos' diagnosis was soft tissue injuries to the neck, back and shoulders. Mr Rajic was referred for physiotherapy, hydrotherapy and gym therapy. She subsequently formed the opinion Mr Rajic was depressed and needed psychiatric assistance.

Dr Golic

1. In early 2007 Dr Ponos referred Mr Rajic to Dr Zaltan Golic, a Slav speaking consultant psychiatrist who conversed with him in his native language.

2. Dr Golic observed Mr Rajic appeared stiff.  His gait was stiff and antalgic; he was struggling to achieve coordination.  Dr Golic thought Mr Rajic had some unconscious exaggeration of his symptoms, but he had no evidence to suggest Mr Rajic was consciously fabricating or exaggerating his symptoms.  Dr Golic concluded Mr Rajic had an adjustment disorder with a depressed and anxious mood. Mr Rajic was treated for depression with an anti‑depressant.

Dr De Tissera

1. In early 2008 Dr Ponos referred Mr Rajic to consultant psychiatrist Dr Sanath De Tissera who was of the opinion Mr Rajic was suffering from a post‑traumatic stress disorder with symptoms of depression following the accident.  When Dr De Tissera saw Mr Rajic with the assistance of an interpreter Mr Rajic  presented as somewhat depressed in mood, he was slow in the pace and delivery of speech.  At the time Mr Rajic was on anti‑depressant medication and the dosage was increased.

1. The extent of Mr Rajic's residual disability

1. Whether Mr Rajic has been able to return to work and his work capacity.

Mr Rajic

1. Mr Rajic was born in Bosnia Herzegovina where he completed school to the age of 18 years.  After his compulsory army service he worked in various menial jobs before obtaining a permanent position as a driver and dispatcher.  When war broke out in Yugoslavia in 1992 Mr Rajic went to Serbia as a refugee.  He then moved to Germany where he worked in building construction.

2. In 1997 Mr Rajic migrated to Australia with his first wife and a child.  He did some work delivering pamphlets.  In 1999 Mr Rajic and his first wife, who was ill with cancer, returned to Yugoslavia where she subsequently died.  Although it was difficult to find work he managed to support his family with different jobs.

3. In December 2005 Mr Rajic returned to Australia with his second wife and their two young children.  Mr Rajic was employed as a casual trades assistant doing pipe rendering with a concrete construction company for 13 weeks until 5 June 2006 before his next employment as a shopping trolley collector in early December 2006.

4. After the accident Mr Rajic tried to return to trolley work at the Inglewood supermarket for two days in late March 2007 but he found it too difficult and painful:

   "And what was it about the job that you found hurt you?‑‑‑[He's] pushing trolleys, [he's] not pushing one or two trolleys.  [He's] pushing 15/20 trolleys.  It's very, very hard work pushing trolleys.  And that's the work that [he's] done from 9 in the morning until 6/6.30 in the afternoon and you can't sort of take one trolley.  People are complaining there are no trolleys then.  One man works for the whole of the Coles.  It's logical that you can't really push one or two trolleys, 12 to 15 at least.  Sometimes I wouldn't be able to have enough trolleys, push enough trolleys and then the ‑ the person in charge would send all the men available to come and help.

   What part of your body stops you from pushing trolleys?‑‑‑All the parts of the body.  The back, the shoulders and the hands.  You really have to use all your energy to push it.  There is also hilly parts."

5. Mr Rajic also tried to return to trolley work at Kingsley but stopped because of pain.

6. On occasions Mr Rajic assisted his wife to deliver pamphlets in the suburbs on a door to door basis.  He found that after an hour or so he could not move because of muscle problems.

7. Mr Rajic says he still has problems with his physical injuries although there has been some improvement.  He has to ensure he does not do anything hard or lift anything hard.

8. Mr Rajic claims he is unable to work at present as a trolley collector or a pipe renderer.

Covert surveillance film footage

The March 2007 covert surveillance film footage

1. The covert surveillance film footage of 28 March 2007 shows Mr Rajic standing beside his car, locking his car, putting on a high visibility jacket, walking to the shopping centre car park, moving and lining up trolleys, pushing trolleys onto collection racks, pushing up to 13 trolleys at a time with little difficulty and no obvious pain behaviour whilst demonstrating unrestricted neck movement and gait.  (The shopping trolleys weigh between 25 to 30 kilograms so a train of 12 trolleys would weigh somewhere between 300 and 350 kilograms.)  Mr Rajic appears to have unrestricted use of his upper limbs and he is seen to make a considerable back effort exertion when pushing the heavy weight of a long train of trolleys, walking on his forefeet.  Mr Rajic works at a reasonable pace.  At one stage Mr Rajic uses a reasonable amount of force when he has to pull a number of trolleys out from the collection rack and then he pushes approximately 13 trolleys into the collection area.  He is seen to take a couple of breaks of a few minutes' duration before resuming his work.  The film footage is of four hours duration.

2. The covert surveillance film footage of 29 March 2007 shows Mr Rajic wearing a high visibility jacket moving and lining up trolleys for over an hour.  He is observed to collect stacks of trolleys from the car park area and return them to the collection racks.  He is seen to push large stacks of trolleys with some force and no obvious pain behaviour or significant disability.  He demonstrates unrestricted neck movement and gait.  The footage also shows Mr Rajic driving a car, attending a physiotherapy, browsing in a shop and purchasing something at a car stereo outlet.  Mr Rajic is seen bending forward into the interior of his car on several occasions.

The June/August 2007 covert surveillance footage

1. The covert surveillance film footage of 14, 16, 18 and 20 June 2007 shows Mr Rajic walking in and out of a gymnasium, getting into and driving his car, and walking into a medical centre.

2. The covert surveillance film footage of 11 and 13 August 2007 shows Mr Rajic with his wife and children, walking out of a shopping centre, getting in his car and driving off, standing outside a medical centre, carrying shopping bags, opening the car boot and putting the shopping bags in the boot.

The May, June and July 2009 covert surveillance film footage

1. The covert surveillance film footage of 22, 25 and 28 May 2009 shows Mr Rajic taking his children to and from school, moving bundles of papers by lifting them or placing them on an office chair on wheels which he uses as a trolley, and transferring bundles of papers into the boot of his car at his residence.  On one occasion, after going down and bending over to pick up a bundle of papers, he briefly touches his back.

2. The covert surveillance film footage of 27 May 2009 shows Mr Rajic doing letter box deliveries whilst carrying bundles of paper.

3. The covert surveillance film footage of 22, 23 and 24 June 2009 shows Mr Rajic walking with a normal gait, spontaneously moving his neck through a normal range of flexion and rotation, getting into and out of his car with no apparent difficulty, driving his car, refuelling his car, using an automatic teller machine, lifting a bundle of papers near his residence, carrying two school satchels whilst taking his children to school.  There is no apparent restriction of movement of Mr Rajic's upper limbs.

4. The covert surveillance film footage of 1 July 2009 taken over a period of four hours shows Mr Rajic getting in and out of his car with apparent ease, walking whilst carrying a bundle of papers in his left hand and doing a letter box drop, bending forwards without restriction into the rear compartment and boot of his car, gesticulating with both arms whilst talking to his wife, carrying a bundle of papers in his left hand whilst pulling a trolley behind him.

Medical evidence

Dr Ponos

1. Dr Ponos was Mr Rajic's general practitioner when he was in Australia from 1997 to 1999 and she resumed as his general practitioner when he returned to Australia in late 2005.  Dr Ponos conversed with Mr Rajic in his native Serbian language.

2. Throughout 2007 and 2008 Mr Rajic presented in Dr Ponos' consulting rooms in a depressed and invalided state.  She gave him unfitness to work certificates.

3. When in mid‑2008 Dr Ponos saw the March 2007 covert surveillance film of Mr Rajic collecting shopping trolleys she formed the opinion Mr Rajic's symptomatology had been exaggerated when attending her consulting rooms.

4. Dr Ponos was significantly surprised by what she saw on the film footage.  Dr Ponos now believes Mr Rajic had recovered from his physical injuries by that time (28 and 29 March 2007) but she remains of the opinion the accident contributed at least partially to his moderate anxiety and depression and this made him unfit to return to fulltime duties.

5. Dr Ponos based her opinion that Mr Rajic was depressed on her own observations of him and the opinions of the consultant psychiatrists Dr Golic and Dr De Tissera to whom she had referred Mr Rajic for assistance.

Dr Rosenthal

1. In early 2007 the insurer referred Mr Rajic to Dr John Rosenthal, a rehabilitation physician for a medico‑legal assessment with the assistance of a Serbian speaking interpreter.

2. Dr Rosenthal considered the accident imposed some degree of soft tissue strain on Mr Rajic's neck and back but his clinical presentation was somewhat irreconcilable with the severity of his injuries.  On the basis of Mr Rajic's clinical presentation Dr Rosenthal was of the opinion he did not have the capacity to work.  Dr Rosenthal also concluded the prognosis was poor and Mr Rajic needed intervention from a multidisciplinary pain management group.

3. After viewing the March 2007 covert surveillance film of Mr Rajic collecting shopping trolleys Dr Rosenthal changed his views.  In Dr Rosenthal's opinion Mr Rajic was fully fit to work as a shopping trolley collector.  Dr Rosenthal considered Mr Rajic's earlier clinical presentation was not genuine and he was feigning disability.

4. In mid – 2009 Dr Rosenthal reviewed Mr Rajic with the assistance of a Serbian speaking interpreter at the request of the insurer's solicitors.

5. After viewing the 2009 covert surveillance footage of Mr Rajic delivering pamphlets Dr Rosenthal observed that although Mr Rajic claimed in the consulting room he was unable to move his neck or upper limbs beyond a minimal range, the indirect clinical findings were more suggestive of the level of function seen on the film footage. 

Dr Flahive

1. In mid‑2007 the insurer referred Mr Rajic to Dr Martyn Flahive, a consultant occupational physician for a medico-legal assessment with the assistance of a Serbian speaking interpreter.

2. Mr Rajic complained of pain down both sides of his neck.  He was having difficulty turning his neck.  There was marked restriction of movement.  Mr Rajic was able to sit through the consultation, however, upon examination when moving, he moved very stiffly with minimal movement of his neck.  Mr Rajic gave the impression of being quite disabled.  Dr Flahive observed that Mr Rajic's presentation could not be explained by just a soft tissue strain injury.  His limitation of movement was very severe and during the examination he was reporting pain when it would not normally be expected.  Dr Flahive concluded that given Mr Rajic's current level of symptoms and presentation he would have difficulty working as a trolley collector.

3. After viewing the March 2007 covert surveillance film of Mr Rajic collecting shopping trolleys Dr Flahive concluded Mr Rajic was consciously exaggerating his level of symptoms and disability.  Dr Flahive was firmly of the opinion Mr Rajic would have the capacity to undertake full time work as a trolley collector.

4. In mid‑2009 Dr Flahive reviewed Mr Rajic with the assistance of a Serbian speaking interpreter at the request of the insurer's solicitors.

5. There appeared to be little change in Mr Rajic's presentation and subjective disability since the last review.

6. After viewing the 2009 covert surveillance footage of Mr Rajic delivering pamphlets Dr Flahive concluded Mr Rajic was consciously exaggerating his level of disability.

Dr De Tissera

1. In early 2008 Dr De Tissera expressed the opinion Mr Rajic was suffering from a post‑traumatic stress disorder with symptoms of depression following the accident, however, his work capacity had not been impaired.

2. Dr De Tissera was also of the opinion that although Mr Rajic had a psychiatric disorder of some degree, he had clearly embellished it, exaggerated it and denied any improvement.

3. By the time of trial Dr De Tissera was of the opinion that Mr Rajic was no longer depressed.  Dr De Tissera based this opinion upon Mr Rajic's presentation in his consulting room and his presentation in the footage of the 2009 covert surveillance film of Mr Rajic delivering pamphlets which he had seen recently.  Dr De Tissera did not see the covert surveillance footage of March 2007 or June/August 2007.

Dr Harper

1. Dr Andrew Harper, an occupational physician reviewed Mr Rajic with the assistance of an interpreter in late 2008 at the request of his solicitors.

2. Dr Harper could not find evidence of physical injury sufficient to explain the extent of Mr Rajic's disability.  However, Dr Harper was of the opinion Mr Rajic's current condition was the combined effect of the initial sprain injury to the cervical and lumbar spines arising out of the accident, an adjustment disorder as diagnosed by Dr Golic, physical inactivity and physical deconditioning.

3. By the time of trial Dr Harper had viewed the 2009 covert surveillance footage of Mr Rajic delivering pamphlets and he was of the opinion Mr Rajic did not have a physical disability that prevented him carrying out full time work.  Dr Harper was of the opinion Mr Rajic's principal disability was psychological rather than physical.  Dr Harper accepted that adjustment disorder was not within his field of expertise and his assessment was subject to the psychiatric opinion.  Dr Harper did not see the March 2007 covert surveillance film although he was of the opinion this film would clearly help in his assessment.  Dr Harper also did not see the June/August 2007 covert surveillance film.

Dr Fong

1. In early 2009 Dr Ponos referred Mr Rajic to Dr Kim Fong a specialist rehabilitation physician who reviewed him with the assistance of a Serbian interpreter.  Dr Fong observed frequent visible grimacing by Mr Rajic, careful deliberate movements, anticipatory guarding and a slow laboured gait pattern.  Mr Rajic presented as a highly disabled person who was experiencing constant symptoms of pain.

1. Dr Fong was of the opinion Mr Rajic's reported level of symptomatology and level of function was grossly disproportionate to any degree of soft tissue injury he may have sustained in the accident over two years ago.  Dr Fong suggested Mr Rajic has a high degree of illness behaviour and illness conviction, which was going to be the main barrier that would hinder his recovery.

2. When Dr Fong viewed the June/August 2007 covert surveillance footage of Mr Rajic and the 2009 covert surveillance footage of Mr Rajic delivering pamphlets, some of which film was taken within weeks of his consultation with Mr Rajic, he concluded Mr Rajic's presentation in the film was a major change from the clinical presentation and which was not entirely explicable in terms of an organic medical condition.

Dr Golic

1. In mid‑2009 Dr Golic viewed the March 2007 covert surveillance footage of Mr Rajic collecting shopping trolleys and the June/August 2007 covert surveillance footage of Mr Rajic.  Dr Golic observed Mr Rajic's facial features appeared to be incongruent with his reported and described depressive symptoms.  Dr Golic concluded Mr Rajic was intentionally producing false and misleading information.  Dr Golic effectively resiled from the views he had previously expressed about Mr Rajic.

2. Dr Golic explained that an adjustment disorder with depressed and anxious mood is a fairly widespread condition which can affect people even exposed to a minor incident.  The underlying strength of the individual's personality make‑up and its relationship to stress would determine at times the development of psychiatric symptomatology.  In Dr Golic's opinion there is a degree of probability and chance Mr Rajic could have developed an adjustment disorder with depressed and anxious mood as a response to a multitude of life stressors including the accident.  After viewing the covert surveillance footage Dr Golic was of the opinion Mr Rajic was intentionally producing and feigning his symptomatology.

Mr Rajic's credibility

1. It was submitted on Mr Rajic's behalf that his credibility has been challenged by the insurer on the basis that he should not be believed because of things said by him to medical practitioners that are said to be false and his presentation at medical consultations is said to be in marked distinction to his presentation on the covert surveillance footage.

2. It was further submitted that in considering the validity of such an approach the court should bear in mind the following matters:

   1.Mr Rajic's language difficulties and the role of interpreters in the history taking by the medical practitioners; and

   2.in terms of the observations of medical practitioners with respect to the covert surveillance footage and in particular the March 2007 covert surveillance footage of Mr Rajic collecting shopping trolleys, the surveillance footage does not show pain and cannot be an accurate indication of his function.

3. However, Dr Ponos and Dr Golic speak the Serbian language and they did not require the assistance of interpreters when dealing with Mr Rajic.  Mr Rajic's evidence about his work history, application for a disability pension, past back complaints, family issues and attempts at work was contradicted by Dr Ponos' testimony based upon her medical notes made at the time.  Mr Rajic's evidence about his past psychiatric history, motor vehicle driving, work history in Yugoslavia and attempts at work here was contradicted by Dr Golic's testimony.  Dr Golic had asked Mr Rajic multiple questions about whether he had worked or driven a car since the accident.  Dr Golic felt that he had been deceived by Mr Rajic.

4. Mr Rajic presented to all medical practitioners except Dr De Tissera in a disabled fashion.  All the medical practitioners who saw the March 2007 covert surveillance footage of Mr Rajic collecting shopping trolleys, just over three months after the accident, were surprised by it.  Dr Ponos was significantly surprised and her opinion of him shaken.

5. I do not accept that because the covert surveillance footage and in particular the March 2007 covert surveillance footage of Mr Rajic collecting shopping trolleys does not show pain, it cannot be an accurate indication of his function.  Nor do I accept that whilst the doctors say Mr Rajic's presentation on the surveillance footage of Mr Rajic collecting shopping trolleys shows a greater ability to move than demonstrated in their presence, the doctors cannot say he did not suffer pain and he was unable to continue with the work trial.

6. If Mr Rajic suffered pain during those two days of collecting shopping trolleys he did not show it on the surveillance footage.  Despite the many attendances on Dr Ponos, Mr Rajic did not tell her he had been back to work moving shopping trolleys and he could not continue because of pain.

7. Mr Rajic's counsel, properly in my view, conceded that it seems probable Mr Rajic's presentation to the various medical practitioners was different to how he presented on the covert surveillance footage.

8. Mr Rajic testified that his behaviour in the clinical setting was much worse than on the surveillance footage because the doctors always told him to stop when he felt pain.  This explanation does not explain the differences in presentation.  The explanation is also contradicted by the testimony of Dr Fong, whose evidence I accept, that he set no limits when asking Mr Rajic to demonstrate his ability.

9. In assessing Mr Rajic's credibility I consider he has not been frank with the medical practitioners including Dr Ponos, his own treating general practitioner.  I am left with the concern Mr Rajic's false and exaggerated presentation in the clinical setting can only be explained in terms of his desire to obtain a significant sum of money.

Finding as to physical disability and work capacity

1. Mr Rajic claims he still has problems with his physical injuries although he acknowledges some improvement.

2. I am satisfied the medical evidence establishes that as a result of the accident Mr Rajic suffered soft tissue injuries; strains involving the neck and back.  However, in my opinion the evidence of Dr Ponos, Dr Rosenthal and Dr Flahive together with my own observations of the March 2007 covert surveillance footage of Mr Rajic collecting shopping trolleys satisfies me he had recovered from his physical injuries by 28 and 29 March 2007 and he was physically fully fit to work as a shopping trolley collector thereafter.

3. I find Mr Rajic has not established on the balance of probabilities he suffered any physical disability as a result of the accident beyond 28 March 2007 which impaired his work capacity. 

Finding as to mental disability and work capacity

1. Dr Ponos is of the opinion Mr Rajic suffered some psychological problems, depression and/or adjustment disorder as a result of the accident and he is not fit for full time work because of his mental state.  Although Dr Harper expressed a similar opinion he accepted mental disability was not within his field of expertise and his assessment was subject to the psychiatric opinion.

2. Dr Ponos based her opinion on her own observations of Mr Rajic and the psychiatric opinions of Dr Golic and Dr De Tessera as she understood their views to be prior to trial.

3. However, before trial Dr Ponos had not seen the report of Dr Golic in which he abandoned his earlier diagnosis.  Dr Ponos was unaware that Dr Golic was of the opinion Mr Rajic was intentionally producing and feigning his symptomatology.  Further, although Dr De Tissera expressed the opinion Mr Rajic was suffering from a post traumatic stress disorder with symptoms of depression following the accident, in his view Mr Rajic's work capacity had not been impaired.

4. On this issue I prefer the evidence of Dr Golic. He was of the opinion Mr Rajic had problems with mood and there is only a degree of probability and chance Mr Rajic could have developed an adjustment disorder of this type as a response to a multitude of life stressors including the accident. Dr Golic did not diagnose Mr Rajic with major depression.  Dr Golic has expertise in the field of psychiatry, he saw Mr Rajic close to the time of the accident and he conducted interviews with Mr Rajic in his mother tongue to enhance rapport and avoid potential misunderstanding when using an interpreter.  Dr Golic saw the March 2007 covert surveillance footage and the June/August 2007 covert surveillance footage. On the other hand, Dr Ponos is a general practitioner who based her opinion on a false premise; which is that Dr Golic was of the opinion Mr Rajic was depressed.  Dr Ponos also based her opinion on the views of Dr De Tissera who required an interpreter and who had not seen the covert surveillance footage of March 2007 or June/August 2007.  Dr Ponos was relying entirely on what Mr Rajic told her.  Dr Ponos only became aware shortly before the trial of Mr Rajic's pamphlet activity and this caused her to amend her views to suggest he might be mildly depressed.

5. I find Mr Rajic has not established on the balance of probabilities the accident materially contributed to any of his psychological symptoms and his work capacity has been impaired by mental disability.

1. Mr Rajic's past loss of earning capacity from 29 March 2007 to trial.

1. Mr Rajic's loss of future earning capacity.

1. Mr Rajic has been paid in full by the insurer for his past loss of earning capacity up to and including 28 March 2007.  Mr Rajic is not entitled to any past loss of earning capacity beyond that date as he has failed to establish any unfitness to work.  Further, Mr Rajic is not entitled to any award for future economic loss as he has failed to establish any unfitness to work beyond that date.

1. Mr Rajic's future medical treatment

1. Mr Rajic is not entitled to any allowance for future medical treatment as he has not established he was taking the medication prescribed by Dr De Tissera.  Mr Rajic has not claimed the expenditure and he did not produce any records from the chemist from whom he says he obtained the medications.

1. General damages

1. In my view Mr Rajic is entitled to be compensated for the shock of the accident on 22 December 2006, the symptoms he complained of, namely generalised aches and pains, recurring headaches, nausea, insomnia and neck and back pains, which have either resolved or cannot be proven to have continued beyond 28 March 2007.

2. As Mr Rajic suffered soft tissue injuries and symptoms for approximately three months following the accident, I do not consider Mr Rajic's claim for damages for pain and suffering and loss of amenity exceeds 5 per cent of a most serious case.  In the circumstances, there will be no award to be made for non-pecuniary loss after deduction of the threshold under the Motor Vehicle (Third Party Insurance) Act 1943.

Conclusion

1. Accordingly, Mr Rajic's claim for damages arising out of his motor vehicle accident on 22 December 2006 save for his past loss of earning capacity up to and including 28 March 2007 must fail.