Rayner v Ralph & Suncorp General Insurance Ltd

[2000] QSC 284

SUPREME COURT OF QUEENSLAND

CITATION:                  Rayner v Ralph and Suncorp General Insurance   Limited [2000] QSC   284  

PARTIES:  GARY JOHN RAYNER

(Plaintiff)

v

NORMAN JOSEPH CECIL RALPH

(First Defendant)

AND

SUNCORP GENERAL INSURANCE LIMITED ACN 075 695 966

(Second Defendant)

FILE NO:  91 of 1999

DIVISION:                   Trial Division

DELIVERED ON:       17 August 2000

DELIVERED AT:        Rockhampton

HEARING DATES:     19, 20 & 21 July 2000 (in Mackay)

JUDGE:  Dutney J

ORDER:Judgment for the plaintiff against the second  defendant for the sum of $22,462.59.

The second defendant to pay the plaintiff’s costs of and incidental to the action to be assessed on the standard basis applicable as if the action had been commenced in the Magistrates Court.

CATCHWORDS:         PERSONAL INJURIES - MOTOR VEHICLE   ACCIDENT – QUANTUM ONLY – whether                  plaintiff sustained an injury to lumbar spine – where   plaintiff suffered from a pre-existing back condition –                    whether plaintiff’s injury as severe as claimed

COUNSEL:A Collins for the plaintiff

R Stenson for the first defendant and the second    defendant

SOLICITORS:             McKays for the plaintiff

Barry Beaverson & Stenson for the first defendant and the second defendant

1. DUTNEY, J:  The Plaintiff, Mr Rayner, claims to have suffered an injury on 14 November 1997 on the Bruce Highway just north of Brandon, near Ayr.

1. The defendant and defendant by election have admitted liability.  The only remaining issue is quantum.  Nonetheless, the action has been fiercely contested for reasons that will later become apparent.

1. It is important to set out in some detail the history of the applicant prior to the accident.  This history comes mainly from the plaintiff and I accept his account of events prior to the accident unless I have otherwise indicated.

1. The plaintiff was born on 20 November 1967 in Hobart, Tasmania.  He completed schooling to grade 10 at Bridgewater High School in Hobart, leaving at the age of 16.

1. From leaving school in 1983 until 1996 when he left Tasmania for Melbourne the plaintiff was employed as a station hand/ringer, horse breaker, heavy machinery operator, truck driver, fruit picker, diary farmer, jackaroo and pig farmer.  In the main these are physically demanding occupations placing considerable stress on the body.

1. In addition to his various regular jobs the plaintiff from the time of leaving school was a keen competitor in bull riding events.  That he was competitive in this activity is apparent from his having earned around $20,000 from rodeo riding between 1983 and the accident.  The plaintiff’s quantum statement discloses that he had competed as a bull rider as late as August 1997.

1. While in Tasmania the plaintiff suffered a back injury as a result of falling from a step ladder in February 1990.  This fall caused tenderness over the plaintiff’s L4/5 region for which he was referred to Royal Hobart Hospital for rehabilitation and treatment.

1. Recovery from this injury took until August 1991 at which time the plaintiff was cleared to return to moderately heavy work.  A report from Dr Turner, his treating orthopaedic surgeon (ex 20) indicates that when reviewed  in March 1992 the plaintiff had said he was doing horse work and night shooting.  The plaintiff at that time said his back felt good but gave trouble when skinning a kangaroo or when he was required to stand in one place for an extended period.

1. In May 1993 the plaintiff went back to Dr Turner with an exacerbation of his back trouble caused when his foot slipped off the bottom rung of a step ladder while he was working as an apple picker.  At the time of the 1993 consultation with Dr Turner the plaintiff was complaining of continuous pain in his back as well as pain in his thigh and knee.  Dr Turner sent the plaintiff back to work although he noted there was evidence of previous back injury and said “it was also apparent that he was likely to have some minor ongoing symptoms because of the presence of a degree of spinal canal sterosis”.

1. On return to work the plaintiff says he could perform the full range of his activities including rodeo riding.

1. The plaintiff settled a claim against his employer in relation to the February 1990 injury for $45,000 general damages.

1. In 1995 the plaintiff suffered a fractured left ankle after falling from a horse.  The plaintiff recovered satisfactorily from this.  It does not feature in any subsequent complaint.

1. In September 1996 the plaintiff moved to Melbourne where he obtained work picking oranges at Piangle.  Shortly afterwards (still in 1996) the plaintiff moved to Brisbane where he obtained a week’s work as a truck driver before moving to Mackay in late 1996.  After a week’s work as a rigger assisting in the erection of scaffolding the plaintiff obtained work with Mount Spencer Pastoral Company performing mixed duties including mustering, calf marking, fencing, dozer driving and horse breaking.

1. The employment with Mount Spencer Pastoral Company came to an end when the plaintiff injured his left ankle.  The plaintiff’s evidence was that this injury was suffered in 1996 (T18.24) but this clearly doesn’t fit the timeline.  I prefer the account given by the plaintiff to Dr Gibberd in 1997 and set out in his report (exhibit 10).  That version is that the plaintiff fractured his left ankle on 1 April 1997.  The plaintiff’s ankle was in plaster for 6 to 8 weeks or until about May 1997.

1. After his ankle came out of plaster the plaintiff moved to Proserpine where in June 1997 he obtained work with a furniture store known as “Burnups”.  That operation was managed by a Mr and Mrs Beels.  Mrs Beels gave evidence.  I found her account plausible and convincing.  With one exception I shall mention later I accept her evidence.  The plaintiff was employed casually by Burnups loading and unloading furniture and assisting on the show room floor.

1. From this point the evidence becomes controversial.  Hereafter I accept the plaintiff’s evidence where and to the extent I specifically indicate only.  The plaintiff says that at some point he was employed by Mr Beels for his business “Far North Car Carriers”.  This involved long distance transportation of motor vehicles.  The plaintiff says this job became full time in September 1997 and that he was paid about $700 cash in hand per trip and that the trips were about once a week and up to three times a fortnight.  A round trip was from Proserpine to Brisbane to Cairns to Proserpine.  The plaintiff suffered the injury for which he now sues on one of these trips.

1. Mrs Beels denies the plaintiff’s engagement by Far North Car Carriers was as formal as the plaintiff suggests.  Mrs Beels said that at some stage she and her husband were looking to increase their earnings because their children were getting older and their education was likely to become more expensive.  They wanted to set up the car transportation business.  The plaintiff needed experience to get work as a truck driver in Queensland.  It was mutually beneficial for both sides for the plaintiff to do some trips for the Beels for which he was reimbursed his expenses in cash.  These expenses might have been about $2000 in all.  He was also given an older model Ford Fairlane.  Mrs Beels thought the plaintiff may have dome in total about 5 or 6 trips.  I accept the plaintiff’s evidence that in fact he did more like 8 or 9 trips.  This is corroborated by exhibit 34, the log book summaries for the relevant period.  In this respect I consider Mrs Beels is mistaken and has understated the number of trips.

1. There are no records of the amount paid to the plaintiff for the trips.  The plaintiff claims to have been paid in cash.  He has not lodged a tax return in the last decade.  The Beels’ have no relevant records.  In their case that might be explicable if Mrs Beels is correct in saying that only out of pocket expenses were paid.  Mrs Beels said that if the plaintiff had been paid $700 per trip she would necessarily have known about it because of her involvement with the business and the general financial situation.  I accept that it would have been difficult for Mr Beels to conceal a payment of $700 per week from his wife in the circumstances of little surplus income and a new business.

1. The plaintiff sought to overcome the lack of independent corroboration of his income by obtaining a number of Westpac pay envelopes, having them filled out by his then fiance and presenting them to Mr Beels for signature.  This was done because the plaintiff’s solicitor had asked to see documentary evidence of income.  Mr Beels refused to sign the envelopes.  Despite this the plaintiff gave the envelopes to his solicitor without informing her that they were not genuine.

1. The pay envelopes were in any event, not consistent with the plaintiff’s evidence.  They did not relate to trips but represented, on their face, a uniform weekly amount and were for $600 rather than $700.  Mr Beels was not called by either side and was apparently on a trip somewhere between Mackay and Melbourne during the trial.  Since I consider both sides had an equal interest in calling Mr Beels who was not a party I am not prepared to draw an adverse interest against either side by reason of his non appearance: cf Jones v Dunkel (1958-1959) 101 CLR 298.

1. In light of the generally unsatisfactory nature of the plaintiff’s evidence and of my overall impressions of Mrs Beels as a witness I accept her evidence as to the basis on which the plaintiff was rewarded for his work for Far North Coast Carriers.

1. On 14 November 1997 as he was driving south on the Bruce Highway approximately 1 kilometre north of Brandon, via Ayr, a Mazda 626 driven by the defendant pulled onto the highway from private property on the right hand side of the road.  The plaintiff in the Hino FF truck he was driving was unable to slow down sufficiently or stop and drove into the rear of the Mazda.

1. The Mazda exploded into flames on impact.  The plaintiff jumped out of his truck and went to the aid of the driver of the Mazda, an 87 year old man who was trapped in the vehicle.  The plaintiff pulled the defendant out of the window of the car.

1. Unsurprisingly, the plaintiff says he was in shock.  I have no difficulty in accepting this in view of the circumstances.  The plaintiff drove his truck back to Proserpine where he spent a few days recovering from the shock.

1. The plaintiff was not wearing a seat belt at the time of the accident.  His evidence was that one was not fitted.  This was an issue on the pleadings but ultimately no evidence was led that the failure to wear a seat belt was causative of damage: Battaglia v. Mason [1996] QSC 81 In the end it became simply an issue of credit. For the moment I will pass over that issue.

1. During the few days he was recovering the plaintiff did not particularly complain of pain.  He described himself as “uncomfortable”.

1. Despite playing down his immediate condition the plaintiff consulted his general practitioner.  Dr Joice, on 17 November 1997.  Dr Joice’s notes (ex 24) refer to the truck accident.  They record not much pain at the time but increasing pains especially in the neck and thoracic region.  There are references in the notes for that day to the absence of Workcover coverage.

1. On that day the plaintiff was asked to undertake another trip for Far North Car Carriers to Brisbane.  The plaintiff said that he drove to Brisbane arriving on the Tuesday morning (18 November).  The depot in Brisbane was owned by a Mr Deen who also gave evidence.

1. On arrival in Brisbane the plaintiff described his condition on alighting from the cab as follows:

   “I stepped of the truck and took the paperwork into the office and as I stepped out I sort of felt a bit funny ….. I just like I trod in a hole.  I just fell to the ground …..” (T26).

1. The plaintiff said that he went into the office where there was a bench seat.  He lay back on that for a time then sat in a chair.  The plaintiff says he was suffering pain in his low back and legs.  The plaintiff said he remained at the depot for the remainder of the day then headed back towards the north.  The plaintiff says that he drove back to Proserpine and didn’t work again for a lengthy period.

1. Mr Deen’s recollection of events at the Brisbane depot is quite different.  Mr Deen said that prior to the plaintiff’s arrival he had been telephoned by Mr Beels.  Mr Beels asked Mr Deen to tell the plaintiff that the defendant was alright but was going to be charged over the accident on 14 November.

1. When the plaintiff arrived Mr Deen went out to the driveway where the truck was being unloaded and passed on the message.  He says that the plaintiff jumped off the trailer said “Oh my back!” and winked at Mr Deen.  I deal in more detail with my impressions of Mr Dean later.  I accept his version of what happened on 18 November 1997.  I do so both because of my favourable impression of Mr Deen and my unfavourable view of the plaintiff’s evidence generally.

1. In this action the plaintiff seeks compensation for a lower back injury suffered in the 14 November 1997 accident.  After returning to Proserpine the plaintiff says he was incapacitated by his back injury from returning to work until October 1998 and since then has only been able to work intermittently and for short days.

1. On 20 November 1997 the plaintiff went back to Dr Joice complaining of severe low back pain.  The shoulder about which complaint had been made on 17 November was no longer troublesome.  The plaintiff returned to Dr Joice on 25 November, 28 November, 8 December and 9 December 1997 complaining of ongoing lumber pain.

1. On 23 December 1997 the plaintiff, at the request of Workcover, saw Dr Gibberd, an orthopaedic surgeon.  This was in relation to the claim relating to the ankle injury suffered while working for Mount Spencer Pastoral Co.  Dr Gibberd received no paperwork from Workcover in relation to the consultation, a fact which annoyed him sufficiently to prompt him to record it in his report of 23 December 1997 (exhibit 10).  Dr Gibberd had to ascertain the nature of the plaintiff’s complaint by questioning him.

1. Dr Joice had earlier cleared the plaintiff to return to work after the ankle injury on 21 August 1997 with some mobility but not enough to prevent his driving.  Of course, as I have already accepted, the plaintiff claims to have been driving for Far North Car Carriers since September 1997.

1. The history recorded by Dr Gibberd on 23 December 1997 makes reference neither to the motor vehicle accident on 14 November 1997 nor to any back complaint.  The complaints Dr Gibberd noted were as follows:

   “Ever since [about late May 1997] however he is still complaining of pain.  The pain is vague and he says it is all around the whole ankle and the more proximal torsal bones.  He says it is aggravated by most activities.  He said the pain is severe enough that he had not been able to return to his normal occupation of truck driving if it is a manual truck because the continuous pushing in the clutch gives quite severe pain.  He said he is unable to walk on sand.  He said his ankle will give way, it gives way into eversion not inversion.  He said he always has to wear a brace and this gives him reasonable support.  He said he is unable to run, he doesn’t believe his symptoms are getting any better or worse at the present time.”

2. Dr Gibberd could not explain the plaintiff’s reported symptoms.  This is not surprising since the complaints were entirely at odds with the plaintiff’s evidence before me.  Accepting that the plaintiff’s account of events up to the date of the accident is relatively accurate as I do the history given to Dr Gibberd is explicable only as an attempt to falsely inflate the lump sum payout for the ankle injury.  This is sufficient of itself to make me regard the plaintiff’s subsequent evidence with suspicion.  It is, however, not the only matter of concern.  It seems to me that there has been a deliberate effort to conceal the true extent of the plaintiff’s post accident work history and exaggerate the problems associated with the November 1997 accident just as the plaintiff did with Dr Gibberd in relation to the April 1997 accident.

1. The plaintiff’s own account of his post accident history has him entirely incapacitated until 15 October 1998 when he says he went back to work for Mr Beels at $450 a week.  That is said to have lasted until 20 November 1998.  A month in Tasmania followed as did a couple of months in Proserpine without paid work.  The plaintiff says he was then on light duties working for an old friend, Scott Wilton in Brisbane.  This would, on the plaintiff’s account have been from about February 1999 until July 1999.  This is inconsistent with the period in the plaintiff’s amended supplementary statement of loss and damage (exhibit 2).  Duties comprised driving a truck in the yard and operating a forklift.  There were a couple of trips to Melbourne and Dubbo but those were accompanying another driver and were trips for which the plaintiff was not paid.

1. The plaintiff says that he could only work for Mr Wilton with his disability because, as a friend, Mr Wilton made allowances.  The plaintiff says he earned about $150 clear per week in this period.

1. After July 1999 the plaintiff says he has performed only casual work occasionally as a second driver in trucks.  The plaintiff says the pain in his lower back prevents him driving more than 3 hours at a time.  The plaintiff also says he did some light work for Tommy Deen changing truck filters and servicing trucks for $50 a day and later $80.  He also did some casual work for a Stephen Forster.

1. The plaintiff said he had tried to buy his own truck and an agreement with Stephen Forster was tendered (exhibit 16).  The agreement was dated 14 January 2000.  It provided for a purchase price o $10,000 in monthly instalments of $1000 from 1 February 2000.  The agreement provided for repossession on default.  At trial the plaintiff said the vehicle had been repossessed because he had only been able to make 3 payments because of shortage of funds.  This was due to his inability to work with sufficient regularity because of his injury to make the truck a paying proposition.

1. The vehicle was operated under contract to Sultana Brothers.  The plaintiff said in cross examination that he should have earned about $18,000 from Sultana Brothers but a lot of it had not been paid because that business had gone into administration.

1. In his amended supplementary statement of loss and damage produced on the first morning of the trial the plaintiff’s earnings from July 1999 to July 2000 are estimated at $5000 net.

1. The recent hiring of the truck to Sultana Brothers seems in fact to have generated $14,119 between 4 February 2000 and 11 May 2000.  This is a period of 14 weeks and represents $1000 a week (see exhibit 36).  I presume the deposits in the bank statements are from Sultana Brothers because most payments correspond with amounts in exhibit 26 and on the plaintiff’s evidence he had no other source of income at the relevant time.

1. Interestingly, there are no debits on either account in exhibit 36 representing any of the 3 payments to Mr Forster between February and July 2000.  Either the plaintiff is earning more than he has so far disclosed, has an undisclosed source of funds or the agreement with Mr Forster (exhibit 16) is fictitious.  In any case it fuels my suspicion of the plaintiff’s evidence.  The conclusion that exhibit 16 does not in truth represent a real agreement fits most comfortably with the rather coincidental “repossession” on the day before trial, the suggestion that the truck would be returned if the plaintiff was successful in the action and failure to make payments despite the significant level of earnings.  I should note that Mr Forster was not called although an attempt was made on the third day of trial to tender a statement from him in circumstances where he was not to be made available for cross-examination.  I did not accept the statement on the basis that the reasons advanced for his non availability were insufficient (see T251.10).

1. The defendant called evidence from Mr Deen, Mrs Deen and a Mr Hall in relation to the plaintiff’s employment and employability.

1. Mr Hall said he employed the plaintiff from September 1998 until January 1999.  He said he employed him as a truck driver to drive a Kenworth car carrier.  Mr Hall, who is now retired, described the work as physically demanding.  He said the plaintiff carried out the work without complaint or external indication of pain or disability.  The plaintiff, according to Mr Hall, drove the Kenworth from Brisbane to Melbourne for which the plaintiff was paid $600 cash a trip.  The plaintiff sometimes went alone and sometimes with a second driver.  The plaintiff also drove a Bedford truck on occasion to Cairns.

1. I accept Mr Hall’s evidence.  It was suggested that he bore a grudge against the plaintiff because of an accident involving the Kenworth for which the plaintiff was unlicensed and with the result that Mr Hall was uninsured.  Mr Hall did not impress me as vindictive in giving evidence.  He gave due credit to the plaintiff for his work and acknowledged that he had been angered by the insurance matter.  My impression of Mr Hall giving evidence was that he was being frank.  Being now retired he had no apparent financial interest in not telling the truth.  An attempt was made to discredit Mr Hall and Mr Deen because they lunched with the plaintiff during the trial and allegedly told him they were giving against him out of animus.  I was not impressed by this attack.  The lunch was set up by the plaintiff.  It is a little unlikely, if they were intending to give false evidence out of vindictiveness that either would have accepted the plaintiff’s lunch invitation or told him openly of their intentions.

1. Mr Deen also gave evidence that the plaintiff worked for him between August and November 1999.  Mr Deen said he found the plaintiff a good worker.  The work he did involved removing gearboxes in trucks, changing wheels and other servicing.  Some of this, especially relating to gear boxes, was heavy work.  It also involved some driving including a solo trip from Brisbane to Coonabarabran which would take about 10 hours in the particular truck.  Mr Deen’s credit was also attacked on the basis of a dispute with Mr Forster in which the plaintiff took Mr Forster’s part.  I accept Mr Deen’s evidence.  I did not get the impression that he was doing other than his best to give truthful evidence.  He was also corroborated by his wife (against whom no attack was made) as to the plaintiff’s ability to do reasonably physical work tree lopping.

1. There is no direct evidence of the plaintiff having worked between November 1997 and September 1998.  I am far from satisfied, however, that his means necessarily that the plaintiff was either wholly incapacitated or wholly unemployed.  The plaintiff did not claim any government benefit during this period.  It was submitted that this was because he was too proud and independent to go onto welfare and reflected well in his favour.  I disagree.  I suspect that the failure to claim benefits was more likely to be because of a reluctance to come to the attention of fiscal authorities.  In this respect it is consistent with his failure to lodge tax returns and his insistence on being paid in cash by the various employers identified.  It is consistent with the absence of written evidence of his employment by various employers.  The stated reason for not lodging tax returns was that he had not earned enough but this was plainly false.

1. The result of the plaintiff’s reluctant history is that it was largely by chance that the real picture of the plaintiff’s post accident work history, at least in part, came to light.  Much of what did come out seemed to emerge as a result of cross-examination.

1. The plaintiff initially claimed to have supported himself for the 11 months between November 1997 on his savings and the proceeds of sale of some rodeo gear and a boat (T38).  It eventuated that the savings were limited to a “couple of thousand dollars” (T135 54-55).  There was no evidence as to what the boat was worth or the number of saddles sold or their value or the value of the other rodeo equipment as well as SCUBA gear which the plaintiff also said he had sold.  Some of this was allegedly stolen both from the plaintiff’s residence and from a boat.  An insurance claim was lodged.  It was not made clear when this claim was made but it seems to have been in the relevant period.  The claim was not satisfied by payment in cash but some of the equipment was replaced.  While the evidence does not permit any firm conclusion to be drawn it does hint that there was probably not much equipment sold.  At T134 the plaintiff spoke of selling one saddle and the SCUBA gear.

1. The pitifully small financial resources available to the plaintiff in the year after accident combined with his general reluctance to be frank about his earnings and the failure to apply for benefits has the result that I do not accept without corroboration the plaintiff’s evidence that he did not work in this period even though I can make no positive finding, that he did work or as to the amount of work he did or his earnings.

1. The medical evidence is inconsistent.  Dr Boys, the defendant’s orthopaedic specialist could find no evidence of incapacity although he acknowledged that pre existing degenerative change visible in the CT scan might cause some symptoms (exhibit 11, page 6).  The overall disability was assessed at 5%.  The degenerative changes in the plaintiff’s spine were described by Dr Boys as within normal expectations for rodeo riders and heavy labourers, even of the plaintiff’s age (T167.1-5).

1. Dr White, the plaintiff’s orthopaedic surgeon, assessed the pre-existing condition as giving rise to a 5% - 10% whole body disability and the November 1997 injury as adding a further 10% (exhibit 5).  This amounts to a major incapacity of 15% - 20%.

1. In part at least, this disparity between specialist might be attributed to the information supplied to Dr White.  Dr White acknowledged that any medical conclusion of this nature is heavily reliant on the accuracy of the history provided (T 97.19-23).  In his report of 19 May 2000 (exhibit 5) Dr White proceeds on the basis, plainly false, that the plaintiff had not been able to return to work (T 97.14).  The report also indicates that the plaintiff had told Dr White that even a chore such as mowing the lawn aggravates the injury.  Since the plaintiff admitted (T 151.11-21) taking a utility load of soil to his current girlfriend’s residence in June 2000 and single handedly distributing it by shovel around the garden I must conclude that the history given to Dr White was a gross exaggeration.  Since Dr White has had to proceed from a false premise as to the physical symptom and limitations of the plaintiff I prefer the reports of Dr Boys.

1. There is a claim as well for psychiatric injury.  Dr Mulholland assessed the plaintiff as having chronic depression resulting in a 10% psychiatric or 5% whole person disability as a result of back pain.  Dr Mulholland saw the plaintiff on 23 March 2000.

1. Again the story given by the plaintiff to Dr Mulholland bears little resemblance to the facts as I have found them.  Most importantly this bears on the opinion eventually expressed in paragraph 12.3 of exhibit 7:

   “The current situation is that he is looking for work but is limited in terms of what he can do, and he can’t find an employer willing to put him on.  As a consequence he is becoming despondent and frustrated about the whole situation and indicated he was close to giving”.

2. In fact at the time he gave this history the plaintiff was contracted with his truck to Sultana Brothers earning $26 gross per hour or $1000 a week, which contrary to the plaintiff’s evidence equates to a full 40 hour week.  If he has ceased this activity it is only because his “friend” Mr Forster repossessed the truck on the day immediately proceeding the commencement of the trial although there is nothing in writing to support that assertion.  Absent such writing and in view of the generally unsatisfactory nature of the plaintiff’s evidence I do not accept his evidence that the truck was in fact repossessed.

1. In short, I do not accept the plaintiff’s evidence except where otherwise indicated in these reasons.  In relation to the seat belt I am satisfied on the balance of probabilities that they were fitted to the truck driven by the plaintiff at the time of the accident.  I accept Mr Deen’s evidence that they were installed when he sold the truck to the Beels in 1997 and did have then when it came back to Mr Deen in 1999 (see also exhibits 39 and 40).  It follows that I do not accept the plaintiff or Scott Wilton on this issue.  I do not think any of the photographs (exhibits 6 and 25) assist.  As to Mr Wilton more generally I conclude that if anything his evidence was inconsistent with the plaintiff.  As I understood Mr Wilton’s evidence, the reason the plaintiff did not drive for Margate Transport was not because the plaintiff was disabled but because the truck that would otherwise have been available for him to drive was repossessed and thus no longer available.

1. I do not accept that the plaintiff suffered an injury in the accident of 14 November 1997 sufficient to incapacitate him for any length of time.

1. I do accept that the plaintiff suffered some injury, probably a short term aggravation of his pre-existing degenerative lower back condition.  I think it more probable that he suffered symptoms for a relatively short period a finding which is supported by evidence of the plaintiff attending physiotherapy and Dr Joice.  I do not find that any absence from work after early 1998 is necessarily related to this.  I should note that despite claiming to have attended physiotherapy for 48 weeks at 2 or 3 times a week no monetary claim is made for this and no documentary evidence is produced in relation to physiotherapy after January 1998.

1. For an aggravation of his pre-existing back condition I allow the plaintiff $15,000.  I allow interest on that at 2% for 2.75 years in the sum of $825.

1. For past loss of earnings I allow a global sum of $5000.  At the time of injury I accept the evidence of Mrs Beels that the plaintiffs was working for expenses.  At Burnups he was making about $200 per week gross while at Mr Spencer Pastoral Co his net earnings appear to have been $260 a week plus keep.  I allow interest on past economic loss at 5% for 2.75 years at $687.50.  I allow nothing for past superannuation.  Since the plaintiff did both before and after the accident insist on working for cash he did not receive and would not have received industry superannuation even if the accident not occurred.

1. Since the plaintiff has failed to satisfy me that the injury suffered continues to effect his work capacity I allow the plaintiff nothing for future economic loss.

1. No claim was made for past care and I am not satisfied that any will be needed in future as a result of the relevant accident.

1. Special damages were agreed at $835.25.  I allow interest on special damages at 5% for 2.75 years at $114.84.  I do not allow travel to the swimming hole.  In view of my general rejection of the plaintiff’s evidence and the absence of any corroboration I am persuaded neither that it occurred nor that it was necessary as a result of the accident rather than as a result of the pre-existing condition.

1. In the result I give judgment for the plaintiff against the second defendant for the sum of $22,462.59 and I further order the second defendant to pay the plaintiff’s costs of and incidental to the action to be assessed on the standard basis applicable as if the action had been commenced in the Magistrates Court.