Ruffles v Chilman - [2000] WADC 89

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: RUFFLES -v- CHILMAN & ANOR [2000] WADC 89

CORAM: COMMISSIONER EATON

HEARD: 1-10, 18-22 NOVEMBER 1999

DELIVERED : 11 APRIL 2000

FILE NO/S: CIV 4164 of 1990

BETWEEN: PATRICK CHARLES RUFFLES
Plaintiff
AND
GEOFFREY CHILMAN
First Defendant
KEVIN HAMILTON
Second Defendant

Catchwords:

Personal injury - Assessment of damages - Addiction to prescribed medication - Soft tissue injury - Turns on own facts.

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Workers' Compensation and Assistance Act 1981

Result:

Award of damages in the sum of $38,270.50.

Representation:

Counsel:

Plaintiff:     Mr R J Butcher
First Defendant             :     Ms B A Mangan
Second Defendant         :     Ms B A Mangan

Solicitors:

Plaintiff:     Butcher Paull Calder
First Defendant             :     Phillips Fox
Second Defendant         :     Phillips Fox

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

March v Stramare (E & H M) Pty Ltd (1990–91) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Sullivan v Mavromatidis, unreported; FCt SCt of WA, Library No 97355B; 22 July 1997

Case(s) also cited:

Purkess v Crittenden (1965) 114 CLR 164
Watts v Rake (1960) 108 CLR 158
Western Australia v Watson [1990] WAR 248

COMMISSIONER EATON: In this action the plaintiff, Patrick Charles Ruffles sues Geoffrey Chilman, first defendant, and Kevin Hamilton, second defendant, for damages . In each case the cause of action is negligence. Each arises out of a motor vehicle accident in which the plaintiff was involved. The first occurred on the morning of 6 February 1989 at Great Eastern Highway, Midvale in Western Australia and the second occurred on 19 August 1993 at Coachwood Gardens, Ballajura, also in Western Australia. Each accident involved a collision between a vehicle being driven by the plaintiff and another vehicle. In the first, the first defendant was the driver of the other vehicle and in the second, the second defendant was the driver of the other vehicle.
By his amended statement of claim the plaintiff alleges, inter alia, that the first accident was caused entirely by the first defendant's negligence and that the second accident was caused entirely by the second defendant's negligence. Each defendant, by his pleading, admits liability. The plaintiff claims to have suffered personal injuries, loss and damage by reason of the negligence of both the first and second defendants. Each defendant, by his pleading, denies that the plaintiff sustained the injuries, loss and damage alleged or any injury, loss or damage.
In consequence, there being no issue as to liability in each case, the issues for trial were to what extent, if at all, the plaintiff suffered injury, loss or damage by reason of either or both of the two accidents and, if he did suffer injury, loss or damage by reason of either or both of the two accidents, the quantification of his compensation by way of damages.

The circumstances of the first accident

At about 8.15 am on 6 February 1989 the plaintiff was driving a Ford Falcon sedan in Great Eastern Highway, Midvale, towards Perth. His wife, Dorothy Ruffles, was a passenger in the front seat. He had been at a meeting with his employer and was travelling from that meeting to his place of work. His vehicle was in the right‑hand lane of a dual carriageway. He brought his vehicle to a stop behind a stationary vehicle which appeared to be waiting for a break in oncoming traffic in order to make a right‑hand turn from Great Eastern Highway. The plaintiff said in evidence that traffic in the left‑hand lane of the dual carriageway was "banked up" for approximately 100 metres behind him and was also stationary. He looked in the rear‑view mirror of his vehicle and saw a car travelling fast in the left‑hand lane approaching the stationary bank of traffic. That car, he said, then swiftly changed into the right‑hand lane (being the lane in which the plaintiff's car was stationary) and continued at speed. The plaintiff said that his vehicle was in "park" with the hand brake on. He was wearing a seat belt. He applied his right foot firmly on the foot brake and held tightly onto the steering wheel. He watched the car fast approaching in the rear‑view mirror. He thought it was travelling at 60 mph. He braced himself in expectation of an impact and rather than verbally warn his wife, for fear that she might turn to look to the rear, put out his left arm in front of her to stop her being thrown forward. He heard the screech of the approaching car's tyres on the bitumen. He felt an impact. He was thrown back in his seat which hit the rear seat. His head hit the headrest. His car "shot forward". Shortly after the impact both drivers alighted from their respective vehicles. They exchanged personal details.
Dorothy Ruffles gave evidence. She was aware that the vehicle being driven by her husband had stopped. She saw a car in front which was waiting to turn right. Suddenly her husband's arm was across her. She heard a loud screech and then a "bang". The vehicle in front had, she said, moved off. There was no contact with that vehicle. In her evidence‑in‑chief she said "I was in shock but I turned and saw that another car had hit our car. I was very upset at the time. I remember Patrick getting out of the car for a short while. I also got out of the car …"
Geoffrey Chilman, the driver of the other vehicle, also gave evidence. He said that on the morning in question he was driving his Holden Commodore sedan along Great Eastern Highway in the left-hand lane of a dual carriageway. He had been stationary at a set of lights and moved forward when the lights allowed. Shortly after doing so he noticed a group of about 12 cyclists in front of him in the lane in which he was travelling. In cross-examination he said that there were probably 30 to 40 cyclists in the group. He changed lanes so as not to be held up by them. They were travelling at 10 to 15 kilometres per hour at the most. He said that he may have been travelling at 40 or 50 kilometres per hour at the time and then increased his speed up to 50 or 55 kilometres per hour. His attention, he said, was drawn to a vehicle in front of the vehicle being driven by Patrick Ruffles. Its movement suggested to him that there had been contact between that vehicle and the vehicle being driven by Patrick Ruffles. He was aware, he said, that Patrick Ruffles' vehicle had slowed down. He slowed his own vehicle in response to that.
Mr Chilman accepts liability for the collision which occurred when his vehicle ran into the rear of the vehicle being driven by Patrick Ruffles. He does so on the basis that he failed to take proper care to avoid that collision. He braked in response to the slowing of the vehicle in front but, by reason of his attention being drawn to the movement of another vehicle, he did not brake hard enough and, in consequence, his vehicle collided with the rear of Patrick Ruffles' vehicle. In his evidence-in-chief he said that "my vehicle literally rolled into the back of the Ruffles' vehicle. There was no sound on impact. My brakes did not screech. The accident was very minor. I felt no impact." When it was put to him, in cross-examination, that his vehicle might have been travelling at about 60 mph he replied that he was "just about stopped" when he hit Patrick Ruffles' vehicle.
In his evidence-in-chief Geoffrey Chilman said that immediately after the collision the two vehicles were about six inches apart, so close that he could not squeeze between them. In cross-examination he said:
"They were touching. If they weren't touching, they were within millimetres or centimetres apart. When I say that, I couldn't walk between the two vehicles."
In cross‑examination, Patrick Ruffles was asked whether he accepted that the vehicles, immediately after impact, were about six inches apart. He replied "no" saying that his vehicle was pushed down the road about 10 or 15 feet. He was quite definite about that.
It is clear that both drivers moved their respective vehicles into a nearby side street where they again spoke and inspected the damage. Mr Chilman said that he spoke with Dorothy Ruffles who, he said, appeared to be crying. She told him that the car was new and that they had only had it for a few days.
As to his initial conversation with Patrick Ruffles, Geoffrey Chilman said that Patrick Ruffles was clearly angry and also indicated that the car had only been purchased a short time before. It seems that the plaintiff calmed down.
In the side street Geoffrey Chilman took a closer look at the damage to the vehicles. He said:
"Very little damage was sustained to the rear of Ruffles car. Ruffles' plastic rear bumper was pushed in slightly and some paint was scraped. All Ruffles vehicle needed was for the plastic bumper to be taken off and repaired."
As to his own vehicle, Geoffrey Chilman said there was minor damage to a front mudguard and to the right front headlight. The glass protecting that headlight and indicator assembly were broken. There was some glass on the road. His recollection of the cost of repair of his vehicle was that it was slightly in excess of $1,000.
Having exchanged personal details both Patrick Ruffles and Geoffrey Chilman drove their respective vehicles away. The latter thought that the damage was so minor that it did not warrant the police being called. Patrick Ruffles said nothing to him about a broken seat mounting in the Ford Falcon.
In cross‑examination Patrick Ruffles said that he thought that there was extensive damage to the front of Geoffrey Chilman's car. In examination‑in‑chief he said:
"It's front grille was stoved in as was the bumper. The bonnet looked flattened presumably from going underneath my car. The car's wings were also damaged. His lights were facing up."
As to the broken seat mounting Patrick Ruffles, in cross‑examination, was asked whether he told Geoffrey Chilman that his seat was broken. He replied that he did not know that it was until he had got back into the vehicle and by then Geoffrey Chilman had gone.
The plaintiff said that he drove the vehicle to "Midvale Ford" and was referred to a panel beater. He then drove to the panel beater. In the panel beater's office he telephoned his employer. An initial quote was prepared.
The vehicle was the property of the plaintiff's employer, Aerovale Holdings Pty Ltd. It was insured by AMP Insurance. On 27 February 1989 the plaintiff signed an accident report form in which he described the vehicle as being a Ford Falcon S pack having registration number 7NE 271 (Exhibit 2). By signing the form the plaintiff declared the particulars provided to be true in every respect. As to the extent of damage to the Ford Falcon sedan the plaintiff declared "rear boot back bumper" and as to the extent of the damage to Geoffrey Chilman's vehicle he declared "bonnet left/right wing front grille lights these damages only from sight full extent not known". As to the circumstances of the accident the plaintiff declared that the other vehicle was approximately 20 metres away when first observed and that its speed on impact was approximately 60 kilometres per hour. He said:
"I held my foot hard on foot‑brake avoiding collision with car in front but on impact my body and leg/neck were shunted forward causing whiplash injuries."
Exhibit 3 is a copy of quotation for the repair of damage to a vehicle having registration number 7NE 217, clearly the vehicle being driven by the plaintiff on 6 February 1989. The quote is for the supply of three parts: a rear bumper, a rear bumper insert and rear bumper brackets. The work to be done, including installation of those parts, was also to the boot inner trims, repair to a body panel and boot floor and a resetting of the boot. Painting was required for the rear bumper, body panel and floor. The quote total, inclusive of parts and labour was for $589.88. In cross‑examination the plaintiff was adamant that the document referred to was not the whole quote saying that there was another page. He was adamant that the cost of the repair of his vehicle was greater than $589.88 suggesting it was $1,200 ‑ $1,400.
In his evidence‑in‑chief Patrick Ruffles said that:
"The seat mountings were never fixed. I carried out a makeshift repair myself by attaching two nuts and tapping the nuts down. … As for the seat mounts, I inserted two nuts to keep the seats in place but it was not a proper job because the seat rocked a bit."
In cross‑examination the plaintiff said that the repairer never looked at the seat.
The repairer was Giuseppe Arielli who was called by the defendants. His evidence was that in February 1989 he had prepared the quotation referred to. It was accepted by the vehicle's insurer and repairs were carried out. In cross‑examination he was shown a copy of a document on the letterhead of his business "Midland Service Panels". It is Exhibit 65 and is addressed to "Barons Leather Lounges", that being the business name registered by the plaintiff's employer at the relevant time. The plaintiff was employed in that business. It is a letter directed to whom it may concern and signed by "T Reed". Giuseppe Arielli said that the signatory was his secretary at the relevant time. The letter is undated. It refers to the writer having been unable to locate "the quotation for repairs to your vehicle" and refers to two invoices, one dated 20 April 1989 and the other 24 April 1989, the first to Barons Leather Lounges and the second to AMP Insurance. There is no reference to a particular vehicle, to particular repairs or even to a particular date of repair. The only person identified on the document is "T Reed". It was tendered by counsel for the plaintiff to support the plaintiff's proposition that there was more than one set of repairs carried out to his vehicle as a result of the motor vehicle accident on 6 February 1989, his insistence being that the cost of repair was more than twice the quotation for repair (Exhibit 3). The difficulty with Exhibit 65 is that its contents, apart from the letterhead, have not been adopted or explained by any witness. As such, the document has little or no probative worth. I cannot infer from its contents that it does refer to the plaintiff's vehicle and, more specifically, to damage to that vehicle arising out of the motor vehicle accident on 6 February 1989. I am asked to speculate that such might be the case. I am not prepared to do so.
On the evidence before me I find that the cost of repairing the damage to the plaintiff's vehicle was in the vicinity of $600, approximately in accordance with the quotation provided by Giuseppe Arielli. He said, in cross‑examination, he could not recall two separate jobs being done.
As to the broken seat mounting, the plaintiff's evidence was that he was aware of that damage prior to driving to "Midvale Ford" and thereafter to "Midland Service Panels". Had there been such damage he might well have been aware of it when driving the vehicle from the point of impact into the nearby side street. Damage to the seat mountings was not mentioned to Geoffrey Chilman either during the discussion at the point of impact or during the discussion in the nearby side street. It follows from evidence given by the plaintiff that he would have been aware of that damage by the time he arrived at the panel beaters. Given that the damage was to the driver's seat mounting it does seem unlikely that mention would not have been made of it for the purposes of the preparation of a quotation for repair of the vehicle. There is no mention of damage to the driver's seat mounting in that quotation. In that regard Giuseppe Arielli said, in cross‑examination:
"I think we would have done because I mean, we're sitting in the vehicle to drive it around the workshop or from the front to the back and I think if the seat was loose and moving, I think we would have picked it up and I'm sure something would have been done about it because I mean, if a car is hit in the rear at a reasonable force there is a good chance that the seat can be damaged but I cannot recall anybody ever mentioning damage to a seat to me or ‑ by the owner or by any of the workers out the back … if Mr Ruffles had told myself or the partner there was something wrong with his seat, something would have been done about it …"
Patrick Ruffles made no mention of that damage in his accident report form (Exhibit 2). Subsequent to the accident he attended a General Practitioner, Dr Harold Judelman. In about July 1989 Dr Judelman referred the plaintiff to Dr K E Giles of West Perth, now deceased. His reports went into evidence. That of 8 July 1989 refers to his first contact with the plaintiff. He obtained a history as follows:
"He suffered an accident on his way to work and he was hit from behind while stationary in his vehicle on the 6th February 1989. He estimates that the car which struck him was travelling about 60 mph. He saw the vehicle approaching, put on the brakes and held on but he was looking around to the left at the time of the impact. His car was pushed some 10 to 15 feet down the road. The whole car seat broke from its moorings and he was thrown around."
Dorothy Ruffles said, in her examination‑in‑chief, that she got out of their vehicle when it was parked in a nearby side street. She said of the damage:
"To look at our car there was not a lot of damage on the exterior. The rear bumper and a portion of the boot was crumpled. The other driver's car had damage to the front end."
She was called by the plaintiff. She gave no evidence about damage to the driver's seat mounting. It seems inconceivable that she would not have known of that damage had it occurred. Patrick Ruffles made no mention of that damage to Geoffrey Chilman saying that, when Chilman left, he was not aware of the damage. He was only aware when he drove away. He would have been aware by the time the vehicle got to the panel beater. It seems improbable that he would not have mentioned that damage to the panel beater. The plaintiff does not assert, in his evidence‑in‑chief, that he did so but rather says that the mountings were never fixed and that he carried out makeshift repairs. It wasn't, he said, a proper job because the seat "rocked a bit".
Geoffrey Matthew Irvin gave evidence. He said he was, at this time, the marketing representative for Gascoigne Furniture in the eastern states of Australia. In August 1989 he was given the Ford Falcon which had been involved in the accident on 6 February 1989. He later purchased it from Gascoigne Furniture. He said in his evidence‑in‑chief:
"There was nothing wrong with the driver's seat. There was nothing to indicate that it had been ripped from its moorings. Mr Ruffles never mentioned to me that the seat was broken or faulty."
I am not prepared to accept that all of the damage to the vehicle arising from the motor vehicle accident on 6 February 1989 was repaired, apparently at the expense of an insurer, except damage to the driver's seat mountings. I find that there was no damage to the driver's seat mountings of the plaintiff's vehicle.
Before leaving the facts of the first motor vehicle accident I should resolve the clear disparity on the evidence between that of the plaintiff and that of the first defendant as to the speed of the first defendant's vehicle immediately prior to the point of impact. In his evidence‑in‑chief the plaintiff thought that the first defendant's vehicle was "going fast", doing 60 mph. He qualified that as follows:
"I acknowledge that I cannot say what the speed was for sure and that my estimate was probably not correct."
Notwithstanding that, the various medical reports put before me record that the plaintiff mentioned 60 mph to Dr Giles in about July 1989, to Dr Andrew Crocker in about March 1995 and to Mr H G Stampfer in about April 1995. He mentioned 60 kilometres per hour in his accident report form of 27 February 1989, again in a report to AMP Fire and General Insurance on 30 May 1989, to Mr H G Stampfer in about August 1992, to Dr David Hillman in about January 1993 and to Dr Scopa in October 1998.

The qualification on his estimate of speed made by the plaintiff in evidence‑in‑chief is only sensible having regard to the fact that he was viewing the approach of the first defendant's vehicle in his rear‑view mirror. It is however the case that, putting aside the apparent anomaly of the repeated references to both 60 mph and 60 kilometres per hour, the plaintiff's account of the motor vehicle accident characterises the speed of the first defendant's vehicle as "fast" as opposed to the first defendant's account which has his vehicle rolling into the plaintiff's vehicle. According to the latter there was no loud noise nor screeching of brakes, contrary to the account given by the plaintiff. To the extent that Dorothy Ruffles heard a loud screech and then a "bang" she tends to support the plaintiff's account but on the question of speed the only direct evidence before me is that of the plaintiff and the first defendant and the only circumstantial evidence before me is that of the damage to the two motor vehicles.
As to the damage to the vehicle being driven by the first defendant I have before me the unchallenged evidence of Peter James Cox the proprietor and operator of a smash repair business called "Ashfield Smash". He prepared a quotation in February 1989 for repairs to the first defendant's Holden Commodore vehicle for the first defendant's employers. That quote included some repair work to that vehicle's boot lid and right rear quarter panel for damage not arising out of the motor vehicle accident on 6 February 1989.
The relevant evidence of Peter James Cox was:
"The damage was mainly front end damage to the front bumper, headlights, grille and front panels and light ornamentation panels. It required new parts including a right front bumper, a centre front bumper section, a centre mould, a grille, a right front park light assembly, a right front headlight assembly, a left front headlight assembly and a front grille panel."
The total quote for repairs including labour was $1,202.66 which included repairs to the rear of the vehicle unrelated to the accident. His evidence was that repairs were subsequently carried out as authorised by an assessor, at a cost just in excess of $1,000. For what it was worth the plaintiff, in cross‑examination, thought that the cost of repair of the first defendant's vehicle should have been greater having regard to his assessment of the damage to that vehicle. By way of explanation the plaintiff said, referring to the repairers:
"They knew Mr Chilman very well from his business and it was a fraudulent amount that was put down so he would get business with them."
Peter James Cox was not required for cross‑examination. I accept his evidence as to the damage to the plaintiff's vehicle and the cost of repairing that damage.
The evidence as to the damage to the respective vehicles is not suggestive of a high impact crash. On balance, I do not accept that the first defendant's vehicle was travelling fast when it struck the plaintiff's vehicle in the rear. On the contrary, I am inclined to accept the first defendant's version which was to the effect that he had accelerated, noticed that the plaintiff's vehicle was slowing and braked but not enough to avoid a relatively low impact collision, his attention having been momentarily drawn to the movement of a vehicle in front of the plaintiff's vehicle. The first defendant's evidence was that he had braked but not hard enough. I do not accept that his vehicle rolled into the rear of the plaintiff's vehicle. I expect that he was still braking at the time. Generally, his account seems more in accord with the circumstantial evidence as to vehicle damage and the cost of repair of both vehicles involved. In arriving at my findings I have read and considered the evidence and reports of Mr E R Scull, a bio-engineer, called by the plaintiff.

Circumstances of the second accident

The plaintiff, in his evidence‑in‑chief, said that on 19 August 1993 at 12.40 pm he was driving a Mitsubishi Star Wagon along Coachwood Gardens, Ballajura. When about 200 yards from his home and travelling at about 20 kilometres per hour a Toyota Hi‑Ace van reversed out of 3 Coachwood Gardens striking the side of the plaintiff's van and causing it to come to a sudden stop. Upon impact, the plaintiff's van was tipped sideways causing the plaintiff to bash his face against the driver's side window. His van then tipped back in the other direction crashing again against the Toyota van.
The driver of the Toyota vehicle was one Kevin Hamilton. I am told he is deceased The only account of that accident was provided by the plaintiff. Curiously, there appears to be a disparity between the account given by the plaintiff in his evidence‑in‑chief and that given in cross‑examination. In the former he said:
"I later saw that there was a bar attached to the rear of the Toyota and this punctured the door of my vehicle."
In the latter he said, referring to his account given to a medical practitioner, Mr J M Hill:
"I told him there was a pole protruding out the rear of the vehicle. I think it had a red flag on it, and the speed that the man came out of the drive penetrated ‑ the pole penetrated the door just behind me and hit the other side of the wall on the vehicle tipping me on sort of 45 degrees, tipped the vehicle on 45 degrees, and in a quick motion, he puts it in first and pulls forward, so he tipped me sideways but not completely on its side, tipped me over sideways smacking my head against the side and then corrected it by pulling forward and the pole dragged me upright again and hit me again."
The foregoing passage was prompted by counsel for the defendants asking the plaintiff in cross‑examination as to whether he had told Mr Hill that his vehicle had been tipped on to it's side in the motor vehicle accident on 19 August 1993. The plaintiff replied:
"No, I didn't. I know exactly what I said."
Having regard to Mr Hill's report of 27 April 1995 the only reference to that accident was as follows:
"In November 1993 he apparently was involved in a second accident when a truck reversed out of a drive and tipped his vehicle on its side."
There were circumstances relating to the plaintiff's personal life in 1993 (which I will come to later) which may explain the account of the accident apparently given by the plaintiff to Mr Hill late in 1993. It was clearly different from the account given by the plaintiff in his evidence‑in‑chief which, in turn, is not easily reconciled with the account given by the plaintiff in cross‑examination, referred to above. I am inclined to accept the account given by the plaintiff in his evidence‑in‑chief but I do so mindful of probable exaggeration by the plaintiff.

Particulars of claimed injuries

In his statement of claim Patrick Charles Ruffles particularised the injuries suffered by him resultant upon the first accident as follows:
(a)shock;
(b)soft tissue injury to the cervical, thoracic and lumbar areas of the spine;
(c)concussion;
(d)an injury to the thoracic nerve and chronic partial denervation;
(e)an injury to the nerves in the groin area;
(f)consequential to his injuries and treatment, the plaintiff developed a depressive illness and an addiction to pain killing medications.
He particularised the injuries resultant upon the second motor vehicle accident as follows:
(a)the plaintiff suffered an aggravation of the injury suffered in the first accident;
(b)an injury to his teeth;
(c)jaw dysfunction.
The plaintiff claims to be, as a result of those accidents, suffering from the following continuing disabilities:
(a)pain in the neck, back and left shoulder;
(b)numbness and prickling in the little finger of the right hand;
(c)pain in the right hip, leg and foot;
(d)restriction of neck movement;
(e)occipital headaches resulting in nausea and vomiting;
(f)distortion in the auditory system, including clicking in the ears, a sensation that ears are blocked and a distressing hypersensitivity to certain sounds;
(g)impairment of vision, including blurring and double vision;
(h)psychological depression;
(i)irritability;
(j)anxiety, resulting inter alia in loss of weight;
(k)loss of memory, resulting inter alia, in disorientation;
(l)tinnitus in both ears;
(m)partial loss of hearing in the right ear;
(n)partial loss of vision in the right eye;
(o)severe pain in the head and side of the face combined with swelling;
(p)extreme muscle wasting due to denervation;
(q)severely restricted use of the left arm;
(r)an ongoing need for various drugs and for medical attention;
(s)severe pain in the abdomen up to the jaw caused by reflux;
(t)impotence;
(u)restricted ability to play musical instruments, to sing or to engage in hobbies;
(v)disturbed sleep and sleep apnoea;
(w)restricted ability to certain household chores, particularly ironing and vacuuming.
In addition to his various claimed physical disabilities the plaintiff claims to have suffered the loss of his employment and any capacity for gainful employment.

The response of the first and second defendants

Each defendant denies that the plaintiff sustained the injuries, loss and damage alleged in the statement of claim or any injuries, loss or damage. Both allege that, if he did sustain injury, loss and damage the same was caused or contributed to by other factors, they being:
(a)a pre‑existing neck condition;
(b)pre‑existing headaches;
(c)a pre‑existing chest problem which amongst other symptoms caused the plaintiff to collapse and for which he was hospitalised in February 1988;
(d)by injury sustained during an incident in the course of the plaintiff's employment in May 1989;
(e)by a pre‑existing degenerative or other condition of the spine;
(f)psychological depression which is unrelated to the accident;
(g)by drug dependency which is unrelated to the accident;
and in the case of the first defendant:
(h)by poor business judgment and dishonesty.

The plaintiff's background prior to 6 February 1989

Patrick Charles Ruffles was born at Hampshire, England on 7 July 1950. His early years were spent in England but he spent time overseas as his father was a Sergeant in the Royal Artillery for 28 years. There were postings in Germany, Cyprus and other places. As a result, his schooling was disrupted, attending 17 different schools. In addition to academic subjects he studied music, photography and art. His parents were musical. He also showed musical ability from a young age. His schooling was complete at the age of 15. From 1965 until 1968 he undertook an apprenticeship in gentleman's hairdressing while continuing in his spare time to both learn music and play in a band.
In 1967 his employer at the hairdressing salon suffered a heart attack. The plaintiff says that, as a result, at the age of about 17 he took over the operation of the salon on his own and attended to associated bookkeeping, working from 8.30 am until 5.30 pm six days a week.
The plaintiff continued to play in bands, one of which was called "Ritzi" which recorded several songs, one called "Too Much Fandango" which became a hit in the United Kingdom charts and much later became a number one hit in Australia.
The plaintiff says that in about 1969/1970 he entered the furniture trade as a trainee for "Cantor's Furniture" working a five and half day week. He continued to play in bands at night. In his evidence‑in‑chief he said that he was promoted to Senior Sales and Carpet Estimator within three months of joining Cantors and, while with that company, won a big contract for the supply of carpet to a fleet of ships. He remained with Cantors for about two years.
On 10 July 1971 Patrick Ruffles married Dorothy Dickinson. There are four children of the marriage, Anthony Craig Ruffles born 25 July 1970, Paul Simon Ruffles born 5 July 1972 and twins, David Peter Ruffles and Mark Andrew Ruffles born 7 March 1976. Patrick and Dorothy Ruffles had purchased a home for their family in Preston, Lancashire.
From Cantors the plaintiff went to "Eastern Carpets". He continued to play in a band in the evenings. In 1972 he was asked to join the ELS Group of companies as a controller. He says that he had a staff of 17 working for him which included a general manager, a floor manager, an assistant manager and sales staff. His salary for a six day week was £250 plus a commission. In his evidence‑in‑chief the plaintiff said that he when he joined the ELS Group at about the age of 22 years his belief was that he was the youngest in his field in the United Kingdom. In 1975, seeking to further his career with a larger company, he applied for a job with "Queensway Furniture" at the age of 25 years. His application was successful. There he had a staff of 41 working for him.
In his evidence‑in‑chief the plaintiff said:
"By the time I was 26 years old my wife and I had four sons and I was earning good money plus a company car and expenses."
In about 1977 the plaintiff says he was approached by the ELS Group of companies to return to work with them as they were having internal problems in some of their stores. He did so. They matched his salary at Queensway Furniture. He continued to play in a band in the evening. He continued with ELS until 1980 when, he says, he set up, with his father, his own business called "Farrington Home Furnishings" in Leyland. It was a retail furniture store. After three months he left the running of the store in the hands of his father and worked freelance as a furniture salesman for several companies.
In about 1981 the plaintiff says that he commenced his own leather furniture manufacturing company specialising in the manufacture of traditional Chesterfield lounges. The company was called "Chesterfield Manufacturing Company". His wife Dorothy worked in that business, mainly in leather cutting. Patrick Ruffles says that he designed all the company's products and arranged for all sales and contracts, working very long hours. Within the first year he opened a retail shop called "Leather Suite Centre". In 1983 he opened a second shop and in 1984 a third. He and his wife travelled to Italy on business. He says that in the first three years of trading he drew about £600 per week.
While apparently, according to the plaintiff, riding on a wave of success in about 1986 or 1987 he sold the businesses because he and Dorothy wanted to open a pub. During 1987 they spent several months touring Britain in a caravan looking at prospective pubs and hotels. They also went to Cyprus and Spain. Early in 1988 the plaintiff says that he worked for a couple of months as a consultant to a business, the details of which are somewhat vague. Thereafter Patrick Ruffles and his wife ran a food van for several months. They were doing that, he said in cross‑examination, "just to fill in time". He agreed that he had become tired of being in the furniture business.
Patrick Ruffles said in cross‑examination that the idea of emigrating to Australia was raised by his father who had returned from a holiday in Australia. He suggested that the family emigrate. Taking up that suggestion, Patrick and Dorothy Ruffles sold their home in the United Kingdom and applied to emigrate to Australia. Thereafter, while waiting to depart they lived in a demountable or caravan. The plaintiff said that it was his intention, upon arrival in Australia, to take one of three courses, either to go into the music business, the furniture business or to open a pub. The furniture business was his least preferred option.
Having been accepted by the Australian authorities Patrick Ruffles and his family left England in late August 1988, arriving in Australia on 30 August 1988 having spent a week in Singapore en route.
Prior to his departure from the United Kingdom Patrick Ruffles had telephoned Kim John Gascoigne, a furniture manufacturer in Perth, Western Australia. There had apparently been a mutual acquaintance. Patrick Ruffles told Kim Gascoigne that, when he came to Australia, he had a proposal to discuss concerning his own employment in Australia. Patrick and Dorothy Ruffles, not long after their arrival in Australia, met Kim Gascoigne at his company's factory at Midvale. He was immediately impressed by Ruffles' motivation and experience. Patrick Ruffles suggested that Gascoigne's business, a furniture manufacturer and wholesaler, might venture into furniture retailing and that he, Patrick Ruffles, might set up retail shops for that purpose. Kim Gascoigne explained in his evidence‑in‑chief that he had been considering the franchising of retail furniture outlets because there appeared to be a market opportunity. He decided to offer Patrick Ruffles employment. In mid September 1988 Kim Gascoigne confirmed in writing that Patrick Ruffles had been appointed director of retailing for the Gascoigne Group of companies and that his salary, with bonuses, was envisaged to be in the vicinity of $60,000 per annum plus. That document was produced to enable Patrick Ruffles and his family to become financially established in Perth and to facilitate bank borrowing.
Aerovale Holdings Pty Ltd registered a business name "Barons Fine Furniture". The venture was financed by the Gascoigne family. For reasons relating to the market Kim Gascoigne did not want to be seen to be associated with the new venture. Initially the directors of Aerovale Holdings Pty Ltd were Patrick Ruffles, Richard Yeap and Richard Tan, Yeap and Tan being Gascoigne's accountants.
Kim Gascoigne said, in his evidence‑in‑chief, that the plaintiff was employed to create a retail shop called "Barons Leather Suite Centre" and was responsible for finding a site and setting up the store. He did that work and the store opened in late October 1988 or early November of that year.
The final salary package for Patrick Ruffles was a wage of $750 gross per week, commission on his personal sales plus a two per cent share of the net profit of the Gascoigne Group of companies pending the success of the Barons store, to be negotiated later as a commission on sales from that store only. As part of the package the plaintiff was provided with a new Ford Falcon S pack sedan.
At the store Patrick Ruffles worked with Barry Walker, a salesman and Christine Sinclair who handled administration. According to Kim Gascoigne the opening of the store was very successful and Patrick Ruffles proved to be a good salesman. In cross‑examination, referring to the Baron's venture, he said:
"If it went well, then we would take a very small minority shareholding. When Patrick's large amount of money, which I believe was well over $¼ million, came out from England, he would buy the stock off us and run the business."
Patrick Ruffles had told Kim Gascoigne during an early conversation that he had money in the Channel Islands that was "tied up". It would, in due course, be available to him.
It seems that the business went well and that Kim Gascoigne's only concern was that Patrick Ruffles' margins were too low. Kim Gascoigne said that he warned Patrick Ruffles that he would not be operating profitably as soon as the slack season came. He said in cross‑examination:
"Well, I mean, it's pretty obvious. He came from England where there are 57 million people. He was used to just being a discount merchant where you work on absolutely nothing. He was buying end of run stock from bankruptcy companies and selling it and that sort of thing, or buying direct from very small companies. He wasn't used to the Australian way."
Kim Gascoigne thought that the plaintiff's philosophy of business was not quite correct. Later in cross‑examination Kim Gascoigne said:
"I think Patrick ‑ the proof was in the pudding really because after February sales started to drop I think Patrick started to get a little bit worried because I said, "Patrick, that's exactly what I told you was going to happen in this period in Australia. People don't tend to buy furniture once the children go back to school because they require the money to pay for the uniforms and school fees." I think he started to realise that the ways of England aren't the ways of Australia."

When the first motor vehicle accident occurred on 6 February 1989 the plaintiff had been in the employ of companies associated with Kim Gascoigne for about one hundred and eight days. He had made an auspicious start to his working life in Australia.
On 31 August 1988 an amount of $102,093.80 had been remitted to a Commonwealth Bank account from the United Kingdom. In addition to that, said Patrick Ruffles, he and his wife brought in a substantial amount of cash. He agreed, in cross‑examination, that the amount brought into Australia would have been, in total, between $115,000 ‑ $120,000. Not long after their arrival in Australia Patrick Ruffles and his wife purchased a new home at Ballajura and set about the business of furnishing and decorating and establishing lawns and gardens. Dorothy Ruffles, in her evidence‑in‑chief, said:
"Patrick had a good job in Western Australia with Barons Furniture. He told me he enjoyed it. We did a lot of work on the house and purchased furniture and bedding. Putting in the pool, painting, landscaping and renovations cost about $40,000. We spent about $15,000 on furniture. We also purchased a car."
The Ruffles family were, it seems, well established in their adopted country.

Events subsequent to 6 February 1989

Patrick Ruffles, subsequent to the motor vehicle accident on 6 February 1989, made his way to work at the Barons Store at Morley and remained until the afternoon. Late that afternoon or in the early evening he attended the surgery of Harold Geoffrey Judelman, a general practitioner then in practice at Ballajura. Dr Judelman's notes of that attendance are as follows:
"Hit from behind ‑ stationary ‑ driving ‑ wearing seatbelt. Tender low back going down to right hip. Tender left chest wall. Advised."
In his evidence‑in‑chief Dr Judelman said that he had no independent recollection of that consultation. His note is the only contemporaneous record. It appears that no medication was prescribed and no form of therapy suggested. That does seem curious in the light of the plaintiff's account in his evidence‑in‑chief as follows:
"I drove on to the furniture shop in Morley from the panel beater after I was told the car was safe to drive. By this time, I had a severe headache on the rear left side of my head going into my neck and left shoulder. I felt nauseous. My wife was with me. At the shop, I stayed for a short time. I became so ill I drove home early. I started to get pain in my lower back, right leg and hip on the way home. In the car, my back locked up. I had trouble standing as my legs were numb. My lower back was in a sitting position and I was unable to straighten up. I needed help to get out of the car and into the house. Later, my sons had to carry me to the car and drive me to the "Illawarra Medical Centre" where I was attended by Dr Judelman. When I saw Dr Judelman, I had severe pain running from the left rear side of my head into the left side of my neck and my left shoulder. I had additional pain in my right hand which was swollen and bruised. I believe that this was from grasping the steering wheel. I also had pain in my right hip running down my leg into my foot. I had pain in my lower back. Dr Judelman examined me and then referred me to a physiotherapist. After I had seen Dr Judelman, I saw the physiotherapist within the Centre, Glynnis Steed."
The physiotherapist, Glynnis Steed, said in evidence‑in‑chief that she treated Patrick Ruffles for the first time on 27 February 1989. She did not do so on the day of the accident.
In his evidence‑in‑chief the plaintiff referred to a schedule of prescribed medication forming part of Exhibit 1. That schedule shows that the first prescription of medication was on 25 February 1989, that prescription being for twenty‑five 20 milligram "Feldene" tablets, that being an anti‑inflammatory medication. That was on the day of Patrick Ruffles second attendance upon Dr Judelman in relation to the accident. The doctor's notes indicate:
"Problems with neck. Tender trapezius muscles left and right. No limitation of movement. Headaches. Treatment ‑ feldene, physio."
In cross‑examination the plaintiff insisted that he had been prescribed medication, the analgesic "Digesic", on 6 February 1989. Having regard to the foregoing I find that on 6 February 1989 the plaintiff attended Dr Judelman with the complaints noted by the doctor in writing and that there was not, on this occasion, prescription of any medication or referral to any therapy. There was, as the doctor noted, advice.
The picture painted by the plaintiff of his state on the afternoon of 6 February 1989 prior to his attendance upon Dr Judelman is of a man in considerable pain and personal discomfort, so disabled by his condition that he had to be carried. In her evidence‑in‑chief Dorothy Ruffles said:
"Later in the day, I remember Patrick coming home shouting for the boys to help him out of the car. By the time I got there he was out the car and the boys were physically assisting him."
Mark Ruffles, at the time, was a month short of his 13th birthday. In his evidence‑in‑chief he said:
"I remember the day of the accident in February 1989. I was told of it but I can't recall the circumstances. … My father complained of pain the day after the accident but I can't recall what he said."
Paul Simon Ruffles was aged 16 years on 6 February 1989. In his evidence‑in‑chief he said:
"In February 1989, on the day of his accident, Dad dropped me off to work. He had the accident later that day."
There was no evidence from either Anthony Craig Ruffles or David Peter Ruffles. As to the plaintiff's statement:
"Later, my sons had to carry me to the car and drive me to the 'Illawarra Medical Centre' where I was attended by Dr Judelman."
The only child old enough to have a licence as at 6 February 1989 was Anthony Craig Ruffles who would have been 18 years old at the time. Paul Ruffles turned 17 years on 5 July 1989. The twins were aged 12 years. Neither of the children who gave evidence confirmed the plaintiff's account. Dorothy Ruffles, spoke somewhat vaguely, of him being physically assisted by the boys.
Dr Judelman's notes record tenderness in the lower back going down to the right hip and a tender left chest wall. There is no mention of any pain or bruising nor of any headache or limitation of movement. Having regard to the foregoing I find that whatever injury may have been suffered by the plaintiff as a result of the motor vehicle accident on 6 February 1989, he was left with a degree of tenderness and discomfort such that no medication was prescribed or other therapy recommended. Dr Judelman gave advice, the terms of which are not known. Patrick Ruffles resumed work as usual on the following day and remained at work full‑time until 23 May 1989. Nearly three weeks after the accident he returned to see Dr Judelman who recorded "problems" with the neck and tender trapezius muscles on both the left and right. There was no limitation of movement. Headaches were noted. He prescribed anti‑inflammatory medication and physiotherapy. Patrick Ruffles first saw the physiotherapist, Glennis Steed, two days later on 27 February 1989.
Patrick Ruffles attended the physiotherapist on four occasions, there being a three week break between the third and fourth attendance. He returned to see Dr Judelman on 1 April 1989. On that occasion the doctor noted:
"Still bad headaches, limitation of movement on extreme movements, still working, acupuncture."
On that occasion the doctor prescribed 50 Digesic tablets.
During the defendant's case a psychiatrist, Mr P W Skerritt, said:
"The mainstay of analgesia is Digesic, which is a relatively mild analgesic … it is a mixture of paracetamol, which is Panadol, and an analogue of the opiates called Dextropropoxyphene."
The attendance upon Dr Judelman on 1 April 1989 marks the first prescription of analgesic medication. During April Patrick Ruffles continued to attend physiotherapy. On 15 April 1989 Dr Judelman recorded:
"Not good, at work, severe headaches, Temazepam and acupuncture."
The record of prescribed medication in evidence shows that Dr Judelman prescribed 50 Digesic tablets with two repeats and 25 Temazepam on 17 April 1989. In examination‑in‑chief he described Temazepam as a sleeping tablet.
During April 1989 there was seven attendances by the plaintiff upon Glennis Steed, the physiotherapist. During May 1989 Patrick Ruffles attended her on a further eight occasions and upon Dr Judelman on six occasions. On 6 May 1989 the doctor prescribed a further 50 Digesic tablets and 20 Naprosyn suppositories. On 20 May 1989 he prescribed a further 25 Temazepam and on 27 May 1989 he prescribed 25 Rohypnol. In evidence he described Naprosyn suppositories as an anti‑inflammatory medication. I understand from the evidence that Rohypnol was prescribed as a sleeping tablet.
During this period the plaintiff began physiotherapy in late February 1989 and increased his attendances during March, April and May of that year then abruptly stopped, his last attendance upon the physiotherapist being on 3 June 1989. During the months of April and May 1989 Dr Judelman had prescribed 250 Digesic tablets, 50 Temazepam, 25 Rohypnol and 20 Naprosyn suppositories.
The foregoing would suggest that the plaintiff had both functional difficulties and pain during the period in question. Certainly, that was the picture described by Dorothy Ruffles. In her evidence‑in‑chief she mentioned complaints, on a daily basis of, headache, neck pain and back pain. He regularly asked for painkillers. On the other hand, he continued to work. Kim Gascoigne said that both before and after the accident on 6 February 1989 Patrick Ruffles performed his normal duties which included lifting and manoeuvring lounge furniture. He appeared healthy and free of any injury or disability. He made no complaint that he was unable to manage his work or had difficulty in doing so.
Michael David Johnson gave evidence that in 1989 he was an agent for Gascoigne Furniture. He recalls being advised by Patrick Ruffles on a day early in 1989 that Ruffles had been involved in a car accident. He was told by Ruffles that the accident had done slight damage to the back of his vehicle and that he thought that he had no injury. He also saw Patrick Ruffles doing physical work at the store.
Christine Sinclair gave evidence that in 1989 she worked as a secretary for Kim Gascoigne. Shortly after Patrick Ruffles employment she was employed as his secretary. She worked with him at the store at Russell Road, Morley, being responsible for clerical/administrative duties including a weekly stocktake and balance, preparing profit and loss statements, balancing petty cash, paying wages and reporting profit results each week. Patrick Ruffles managed the store. Either on the day of the accident or shortly after he complained to her of having suffered "whiplash". He told her that he was seeing a physiotherapist. He occasionally complained of headaches. There was no effect on his ability to work. She said:
"Ruffles was able to lift couches and sofas, change the displays of showroom furniture, together with the loading and unloading of trucks. He continued doing the same duties as he had done before the accident. I did not observe that any injury that Ruffles may have suffered in the accident effected his ability to undertake his usual work duties and tasks in the same manner as he did prior to the accident."
It is apparent from the evidence that, after the plaintiff's auspicious start to his working life in Australia, his relationship with his employer began to deteriorate. Kim Gascoigne said in evidence‑in‑chief:
"The sales at Barons in February, March and April did not go very well. I was not concerned because those months were always down times in Western Australia in furniture sales. I told Ruffles that he would have to learn to look at the margins a little bit more and that this was his weak area. I also told him that he had to realise the market in Perth was not the same as in Britain. In early May when I made my usual visits, Ruffles started to get quite agitated. Around mid‑May 1989 Ruffles told me that he was not happy as a director of Aerovale Holdings."
Christine Sinclair had a slightly different perspective. She said in evidence‑in‑chief:
"Ruffles and Gascoigne's relationship started to deteriorate in the beginning of 1989. Ruffles thought that he did (not) have enough say in what was ordered in and the running of the store. He thought that Gascoigne should have kept his nose out of it. Whilst I was employed there I frequently overheard Ruffles and Gascoigne talking about the running of the shop. A couple of times the conversations became loud and heated. Ruffles main complaint was that Gascoigne was not giving him enough free hand in the running of the shop."
She went on to say that she and Ruffles shared one small office and that her desk was opposite his. She said that in April or May 1989 Patrick Ruffles started scheming to get involved in his own business venture. She said:
"I overheard Ruffles talking to customers of Barons and telling them that he planned to go into business himself. Ruffles did nothing to hide these conversations from me. As we were in a small office I could not help but overhear the conversations. Ruffles showed me plans and sketches of individual pieces of furniture that came from the United Kingdom which he said he could bring into Australia and sell cheaper than Gascoigne. I cannot recall when he showed them to me. I hinted to Gascoigne to watch Ruffles on two or three occasions. I got on well with both men but I thought Ruffles was being disloyal. Gascoigne indicated that he was already aware of Ruffles disloyalty. I resigned from my employment with Gascoigne Furniture in about May 1989."
Christine Sinclair was cross‑examined but her evidence‑in‑chief as quoted was not challenged. I find that there was a deterioration in the relationship between Patrick Ruffles and Kim Gascoigne in the months of February, March, April and May 1989. I find that from about April 1989 the plaintiff was preparing to leave that employment and begin his own business in the furniture trade.
Dorothy Ruffles said in her evidence‑in‑chief that in about 1989 she told her husband that she wanted to go back to work. By then, she said, the decoration of their house in Ballajura was finished and she was looking for something to do. She said:
"The discussions we had were about setting up a retail furniture business."
I accept that evidence. I do so, however, on the basis that if Patrick and Dorothy Ruffles were to launch a business in the furniture trade both Dorothy and Patrick Ruffles would need to be available to work in that business. That would pose, in all probability, some difficulty for Dorothy Ruffles who then had three teenage boys in her care, assuming that the older child Anthony was by then, to a degree, independent.
Despite increasing attendances upon a physiotherapist, increasing use of analgesics, anti‑inflammatories and sleeping tablets and attendances upon his general practitioner in March, April and May 1989 Patrick Ruffles continued to work showing no sign to the observer at work of any disability or limitation of movement. His planning to launch a new business suggests to me that he did not contemplate a disability or limitation of movement.

An accident at work on 23 May 1989

On the morning 23 May 1989 Kim Gascoigne spoke with Patrick Ruffles having heard from his accountant that Ruffles was unhappy and wanted to resign. They agreed that Ruffles should resign his directorship of Aerovale Holdings Pty Ltd. In his evidence‑in‑chief Patrick Ruffles described his encounter with Kim Gascoigne on that morning as an argument. He agrees that he resigned his directorship. In cross‑examination he explained the cause of the argument saying, in effect, that Gascoigne Furniture was loading its pricing to Barons to the detriment of the latter's profitability. He said:
"He was increasing the cost price of all the products coming in from Gascoigne's on a weekly basis. When I asked him why, he said that it didn't matter, they were both his companies and he wanted Gascoignes to look the better of the two… That is why I resigned as director, because he was bleeding it dry."
Shortly after he said of Barons:
"No, it was very profitable until Mr Gascoigne started to strip the profits off it, and that's when the arguments started. I was concerned about it. That's why I resigned."
Further he said:
"I was disappointed in the way that the money was being stripped from the company, leaving me to be liable as a director. It had nothing to do with its growth. The growth was coming along nicely."
The plaintiff's proposition was put, somewhat faintly, to Mr Gascoigne in cross‑examination. He replied that the wholesale price of Gascoigne Furniture's product was the same throughout Australia and that there was no extra surcharge put on Barons. When asked if his conversation with Patrick Ruffles on 23 May 1989 was heated he replied "not really".
In his evidence‑in‑chief Kim Gascoigne said that with his resignation the plaintiff lost all entitlements to wages, salary and bonuses and that, as he was remaining as an employee of Aerovale Holdings Pty Ltd, in the capacity of salesman only, he would have to renegotiate his contract. When asked by the court whether the plaintiff realised the financial implications of his resignation he replied:
"I think it would have been pretty obvious to him but I mean, he resigned for another reason. He didn't resign because he wanted to. He had already started his Clever Leather company up because he had already got a fax sent to the UK to the people in England."
Following the discussion Kim Gascoigne left the store and the plaintiff resumed his work as a salesman. He said, in cross‑examination, that he was responsible for 80 per cent of the store's sales.
Later in the day another salesman, Barry Walker, asked the plaintiff for assistance in lifting a sofa. It was resting on a stand about a metre off the ground. It was to be moved to the adjoining warehouse. They slid the sofa to the edge of the stand and began lifting it. The plaintiff, in his evidence‑in‑chief described what happened as follows:
"Instead of me walking forward with the sofa I was pushed backwards. My heels came up against the edge of a floor display stand about one foot behind me. There was another sofa on the stand behind me with its back to me. The stand stood about eighteen inches off the ground. Barry then let go of his end. I had never seen this done in twenty‑two years I have been in the trade. I fell in a seated position on the stand behind me with the sofa that was on it resting against my back. The sofa I had been holding hit me in the chest. I let go and it fell to the ground. It never at any time touched any other part of my body other than my chest. It was just more of a shock than anything else ‑ not a heavy blow. Barry then burst out laughing. I asked him why he did that. It may well have been an accident but the impression I had at the time was that it was deliberate. I thought that his action might have been related to me resigning as a director. We finished off shifting the sofa and then I said to Barry "I'm going home". At the time, I was quite upset. The sofa incident made my symptoms a little more painful that day. When I saw Dr Judelman, he said I had exacerbated my injuries. I consider that the sofa incident did aggravate my symptoms but not significantly."
Dr Judelman recorded in his notes "reported mishap at work. Left work early to come down for treatment. Sent away to a physio". The plaintiff attended Glennis Steed, physiotherapist, on 25, 27 and 31 May 1989.
Not only did he refer the plaintiff to a physiotherapist, Dr Judelman completed two medical certificates under the Workers' Compensation and Assistance Act 1981, one being a first medical certificate and the other being a progress/fitness medical certificate. The first gave notice to Aerovale Holdings Pty Ltd that the plaintiff had attended upon the doctor in respect of a disability provisionally diagnosed as a "whiplash injury" having occurred on Great Eastern Highway, on 6 February 1989. The second certificate gave notice to the employer that the plaintiff, having suffered a disability on 6 February 1989, was still suffering from whiplash and would be unfit from 23 May 1989 for a period of two weeks.

To the extent that the plaintiff suffered from depression I find, on the evidence before me, that his depression was related to or resultant upon circumstances in the plaintiff's life such as the failure of his business ventures and consequent economic misfortune and addiction to prescribed medication rather than to the motor vehicle accident of 6 February 1989.

Causation and addiction

On my findings the plaintiff's addiction was well established prior to the second motor vehicle accident. Can it be said to have been caused by the first?
In March v Stramare (E & H M) Pty Ltd (1990–91) 171 CLR 506 Mason C J said at 515:
"The common law tradition is that what was the cause of a particular occurrence is a question of fact which 'must be determined by applying common sense to the facts of each particular case'. …"
He went on to say:
"Commentators subdivide the issue of causation in a given case into two questions: the question of causation in fact – to be determined by the application of the 'but for' test – and the further question whether a defendant is in law responsible for damage which his or her negligence has played some part in producing. ... It is said that, in determining this second question, considerations of policy have a prominent part to play, as do accepted value judgments. … However, this approach to the issue of causation (a) places rather too much weight on the 'but for' test to the exclusion of the 'common sense' approach which the common law has always favoured; and (b) implies, or seems to imply that value judgment has, or should have, no part to play in resolving causation as an issue of fact."
In Medlin v State Government Insurance Commission (1995) 182 CLR 1 (at 6-7) Deane, Dawson, Gaudron and Toohey JJ said:
"For the purposes of the law of negligence, the question whether the requisite causal connection exists between a particular breach of duty and a particular loss or damage is essentially one of fact to be resolved, on the probabilities, as a matter of common sense and experience. And that remains so in a case such as the present where the question of the existence of the requisite causal connection is complicated by the intervention of some act or decision of the plaintiff or a third party which constitutes a more immediate cause of the loss or damage. In such a case, the 'but for' test, while retaining an important role as negative criterion which will commonly (but not always) exclude causation if not satisfied, is inadequate as a comprehensive positive test. If, in such a case, it can be seen that the necessary causal connection would exist if the intervening act or decision be disregarded, the question of causation may often be conveniently expressed in terms of whether the intrusion of that act or decision has the effect of breaking the chain of causation which would otherwise have existed between the breach of duty and the particular loss or damage. The ultimate question must, however, always be whether, notwithstanding the intervention of the subsequent decision, the defendant's wrongful act or omission is, as between the plaintiff and the defendant and as a matter of common sense and experience, properly to be seen as having caused the relevant loss or damage."
It could not be said in the case of Patrick Ruffles that the motor vehicle accident of 6 February 1989 was an essential condition to the development of his addiction to prescribed medication some three and a half years later. The ultimate question for me is whether the first defendant's negligence in allowing his vehicle to collide with the plaintiff's vehicle on 6 February 1989, as a matter of common sense and experience, is properly to be seen as having caused the plaintiff's addiction to prescribed medication. My finding is that it did not.
An addiction is not something which one contracts like the common cold or influenza. Nor is it something which develops as a necessary consequence of the administration of particular medication such as the development of an allergic reaction to a particular medication. In the case of Mr Ruffles he was motivated towards attributing a whole range of symptoms, the subject of complaint to various medical practitioners, to the effects of the motor vehicle accident of 6 February 1989. I have already found that he was prone to exaggeration and embellishment, not just in relation to his medical condition but in relation to his personal circumstances generally. I find that he was motivated by the prospect of a substantial award of damages based on the loss of his capacity to earn an income and that his motivation was heightened by the failure of various business ventures which led to a loss of income, assets and ultimately to bankruptcy, the plaintiff having filed a statement of affairs under the Bankruptcy Act 1966 on 28 June 1993. Those factors combined with the plaintiff's preparedness to mislead and manipulate medical practitioners along with the compliance of his general practitioner, Dr Harold Judelman, are all factors which I take into account in concluding, as a matter of fact, that I am not satisfied on the balance of probabilities that the motor vehicle accident of 6 February 1989 caused the addiction to prescribed medication which dominated the plaintiff's life for a period of about seven years, the effects of which were clearly devastating and may now have rendered him effectively crippled.
I was referred by counsel for the defendants to Sullivan v Mavromatidis, unreported; FCt SCt of WA, Library No 97355B; 22 July 1997. In that case Franklyn J noted that the trial Judge had found that the respondent had acquired a dependency on her tablets and the narcotic drug MS Contin. The trial Judge also found that the medication was prescribed to the respondent as a result of her voluntary exaggeration and falsification of her symptoms and not as a result of the injuries that arose from the accident. Franklyn J concluded that the dependency arose out of the prescription of drugs for symptoms which the respondent did not have but falsely claimed to have.
I have found, as a matter of fact, that the first defendant's negligence on 6 February 1989 did not cause the plaintiff's addiction to prescribed medication. If that were wrong I would conclude, in any event, that the prescription of increasing doses of Digesic, other analgesic medication and ultimately Pethidine by a doctor who asked no questions but accepted what the plaintiff said to him, would not have occurred had it not been for the plaintiff's florid and embellished presentation of his pain which, I have found, was motivated by his desire to achieve a substantial settlement of his personal injuries claim.

Damages

So far as the motor vehicle accident of 6 February 1989 is concerned I have found that the plaintiff sustained a soft tissue ligamentous injury of his cervical and lumbar spine. That finding reflects an acceptance of the diagnosis of the orthopaedic surgeon John Manners Hill who, by arrangement with the plaintiff's then solicitor, spoke with and examined the plaintiff on 10 September 1990. In his report of 17 September 1990 Mr Hill indicated that the cervical and lumbar injury was not severe and that the plaintiff had only mild residual physical disability. He suggested a review by a clinical psychologist as a result of his impression that there was significant anxiety and tension which appeared to be exaggerating the plaintiff's symptoms. Mr Hill recommended a combined psychological and physical programme of rehabilitation that would, he said, have enabled the plaintiff to return to his previous vocation as a director of furniture manufacturing. He suggested that the plaintiff remain off work during the period of the programme of rehabilitation. He suggested also, so far as the plaintiff's complaints of headaches were concerned, that there be an assessment by a neurologist. A copy of Mr Hill's report was made available to Dr Judelman.
In his report of 5 September 1991 Mr Hill confirmed that the plaintiff had a mild physical disability affecting his lumbar spine and a minimal cervical disability. He could not explain the headaches complained of and expressed his belief that the plaintiff was fit for light duties and could manage administrative and clerical work.
In a further report of 28 April 1993 Mr Hill confirmed that the plaintiff would be able to manage the administrative side of a furniture manufacturing business. He suggested that the plaintiff's condition would be unlikely to change until there was finality of his personal injuries claim.
Two or three weeks prior to his first attendance upon Mr Hill the plaintiff had attended upon Mr S S Gubbay, a neurologist, at the request of his then solicitor. Mr Gubbay reported on 28 August 1990 concluding, inter alia, that the plaintiff had no neurological disturbance either of a mental or physical type. He was of the view that the injuries suffered by the plaintiff were of an orthopaedic nature. He concluded that the plaintiff had suffered soft tissue injuries to his cervical spine and possibly to other parts of his spine. There did not appear to be any neurological injury. He doubted that there was any permanent injury and expected that the plaintiff would eventually make a reasonable recovery cautioning that the matter of prognosis would require both psychiatric and orthopaedic input.
The plaintiff had complained to him of being "extremely depressed". I am not prepared to accept, on the balance of probabilities, that the plaintiff was suffering from depression by reason of his complaints to medical practitioners in that regard. To the extent that the plaintiff did become, ultimately, clinically depressed my finding is that it was associated with his addiction to prescribed medication which developed later. On the balance of probabilities the mention by the plaintiff to Mr Gubbay of "feeling depressed" was a manifestation of his florid presentation to medical practitioners. I note, in passing, that Mr Hill, in his report of 17 September 1990 recorded no such complaint by the plaintiff.
In summary, I am prepared to make an award of damages based on my finding that the plaintiff suffered, as a result of the accident on 6 February 1989 a soft tissue ligamentous injury of the cervical and lumbar spine which was not severe and which was exacerbated, to a relatively minor degree, by an incident which occurred at work on 23 May 1989. It is to be noted that Mr Gubbay nor Mr Hill made any reference to that incident in their respective initial reports having reviewed and examined the plaintiff. I award $25,000 by way of general damages.
I am not prepared to make an award for past and future economic loss. So far as past economic loss is concerned I am not satisfied that when the plaintiff ceased work on 23 May 1989 he did so for reasons associated with the injury suffered by him in the motor vehicle accident of 6 February 1989. To the contrary, I regard the plaintiff's conduct on that day and thereafter as being more associated with his difficulties with his then employer and his plans to establish a rival enterprise. It is notable that, within weeks of 23 May 1989, the plaintiff was again hard at work in Brisbane. While there he further damaged his relationship with his employer hastening the need to become self-employed in the rival enterprise. To the extent that the rival enterprise and subsequent ventures by the plaintiff and his wife were established and failed leading to financial loss I am not prepared to find, on the evidence before me, that such financial loss was attributable to the motor vehicle accident of 6 February 1989.
It is true that the plaintiff ceased work completely, was allowed an invalid pension and went into bankruptcy. So far as I can assess from the evidence the plaintiff ceased any form of endeavour to obtain gainful employment in about mid 1992 and has not worked since. On my findings that was not because of the injury suffered on 6 February 1989 but because of other factors. My understanding is that at present he describes himself as an invalid pensioner with no capacity for work. To the extent that that may be so I am not prepared to find that his current incapacity for work is resultant upon the injury suffered by him in the motor vehicle accident of 6 February 1989. Nor is it resultant upon the second motor vehicle accident. It follows from the foregoing that I make no allowance for economic loss.
As to the second motor vehicle accident, as already indicated, I am prepared to allow the cost of the bridgework undertaken by Dr Shepherd to correct the damaged bridgework and the tempero-mandibular problem. I fix that amount at $7,540.
The negligence giving rise to the second motor vehicle accident is a cause of action arising after 1 July 1993 and, in consequence, ss3A to 3D of the Motor Vehicle (Third Party Insurance) Act 1943 apply. By s3C(2) the amount of damages that may be awarded for non-pecuniary loss is to be a proportion, determined according to the severity of the non-pecuniary loss, of the maximum amount that may be awarded. Presently, that amount is $219,000. That amount could only be awarded in the most extreme case. In my opinion the nature and extent of the dental and tempero-mandibular injuries sustained by the plaintiff in the second motor vehicle accident and their effects amount to 5 per cent of the most extreme case, or an amount of $10,950. Having regard to s3C(4) of the Act, $450 is to be awarded for non-pecuniary loss arising out of the second accident.
To the extent that the plaintiff claims that he suffered an exacerbation in the second accident of injuries suffered in the first, I find that the soft tissue injury suffered in the first accident would have, in all probability, resolved itself well prior to the second accident and, in any event, that other factors, such as his addiction, were by then dominating his life.
The plaintiff filed a schedule of special damages which included the cost of the dental work undertaken by Dr Shepherd. Undoubtedly, as a result of the first accident, the plaintiff required some medication and physiotherapy. The amounts in the schedule were said to be agreed but were said to be dependant upon my findings on causation. I can, at best, allow a part of what is claimed in a somewhat global fashion as follows:
Medicare  $2,000.00
Pharmacy account   2,000.00
G Steed  30.50
Dr Judelman   500.00
Sprague Kam Glancy & Partners                      750.00
$5,280.50
By way of damages I award the plaintiff:
General damages (first accident)                  $25,000.00
General damages (second accident)  450.00
Cost of dental treatment   7,540.00
Other special damages      5,280.50
$38,270.50
It follows from the foregoing that I am not satisfied on the balance of probabilities that the plaintiff has made out a case for damages for the various disabilities claimed by him, other than those mentioned above.