Ruffles v Chilman - [2002] WASCA 145

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: RUFFLES -v- CHILMAN & ANOR [2002] WASCA 145

CORAM: WALLWORK J
ANDERSON J
STEYTLER J

HEARD: 5 APRIL 2002

DELIVERED : 7 JUNE 2002

FILE NO/S: FUL 83 of 2000

BETWEEN: PATRICK CHARLES RUFFLES
Appellant (Plaintiff)
AND
GEOFFREY CHILMAN
First Respondent (First Defendant)
KEVIN HAMILTON
Second Respondent (Second Defendant)

Catchwords:

Damages - Appeal - Motor vehicle accident - Whether findings at trial inconsistent with evidence - Whether appellant had exaggerated his symptoms - Credibility of appellant the major issue - Decided on the facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant (Plaintiff)  :        Mr C P Shanahan & Mr R J Butcher
First Respondent (First Defendant)          :        Ms B A Mangan
Second Respondent (Second Defendant) :        Ms B A Mangan

Solicitors:

Appellant (Plaintiff)  :        Butcher Paull & Calder
First Respondent (First Defendant)          :        Phillips Fox
Second Respondent (Second Defendant) :        Phillips Fox

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

Chapman v Hearse (1961) 106 CLR 112
Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522
March v Stramare (E&HM) Pty Ltd (1991) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Purkess v Crittenden (1965) 114 CLR 164

Case(s) also cited:

Abalos v Australian Postal Commission (1990) 171 CLR 167
Devries v Australian National Railways Commission (1993) 177 CLR 472
Jaensch v Coffey (1984) 155 CLR 549
Loffo v Giang (1990) 13 MVR 59
Morgan v Tame [2000] NSWCA 121
Smith v Carbone, unreported; FCt SCt of WA; Library No 960369; 16 May 1996
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 73 ALJR 306
Sullivan v Mavromatidis, unreported; FCt SCt of WA; Library No 970355; 22 July 1997
Watts v Rake (1960) 108 CLR 158
Western Australia v Watson [1990] WAR 248

WALLWORK J: The appellant appeals against an award of damages which he received in the District Court at Perth on 11 April 2000. He claims that the award is insufficient.
The first ground of his appeal is that the learned Commissioner erred in finding that his addiction to pethidine and his excessive use of other analgesics was not caused by a motor vehicle accident on the 6 February 1989. He contends that the findings of the learned Commissioner were inconsistent with the evidence of Dr Skerritt, the treating psychiatrist, whose evidence was largely accepted by the learned Commissioner and generally that the findings of the learned Commissioner were inconsistent with the evidence.
The second ground of appeal is that the learned Commissioner erred in finding that the appellant's psychological condition was not caused by and was unrelated to the accident.
The third ground is that the damages awarded were below the exercise of a sound discretionary judgment.

The Motor Vehicle Accident

The relevant accident occurred on the morning of 6 February 1989 in Great Eastern Highway at Midvale. A vehicle ran into the back of a vehicle being driven by the appellant. The appellant's evidence was that the vehicle which ran into the back of his vehicle was travelling fast. However, the driver of the other vehicle said that his vehicle had just "literally rolled into the back" of the appellant's vehicle; that there had been no sound on impact and that he had felt no impact.
There was a dispute about the damage which had been caused to the appellant's vehicle. The appellant claimed that the collision had amongst other things, caused his seat to break the seat mounting. The other driver said that the cost of the repairs to his vehicle had been only slightly in excess of $1,000. Both drivers drove their respective vehicles away from the scene. The appellant claimed that he had suffered whiplash injuries in the accident.
The learned Commissioner noted that a quote for the repairs of the damage to the appellant's vehicle had been for the sum of $589.88. The appellant said that there had been another page to that quote and that the cost of the repairs to his vehicle was $1,200 to $1,400. He said he had fixed the seat mounting himself by attaching two nuts and tapping the nuts down. He admitted that the repairer had never looked at the seat mounting. The learned Commissioner found on all the evidence that the cost of repairing the damage to the appellant's vehicle had been in the vicinity of $600.
The appellant told one doctor that "the whole car seat broke from its moorings and he was thrown around." The Commissioner found that there had been no damage caused to the seat mountings of the appellant's vehicle. In my view the Commissioner was entitled to come to that conclusion on all the evidence, none of which supported the appellant's claims in this respect except the evidence he gave himself. There was considerable evidence concerning this question and it is an important finding.
The Commissioner also found that the evidence concerning the damage to the respective vehicles was not suggestive of a high impact crash. He did not accept the appellant's evidence that the other vehicle was travelling fast when it struck his vehicle in the rear.
The appellant suffered a second accident on 19 August 1993 but that is not very significant to this appeal.
The learned Commissioner did not accept a lot of what the appellant had said about the February 1989 accident and his injuries. The adverse findings were reflected in the award the learned Commissioner made for damages. I will refer to some aspects concerning the appellant's credibility which were referred to by the learned Commissioner in his reasons.

The Appellant's Injuries

The appellant claimed to have suffered a number of injuries and consequences from the relevant accident on 6 February 1989. They included injuries to the cervical, thoracic and lumbar areas of his spine; also a depressive illness resulting from his injuries and an addiction to pain killing medications. He claimed that the second accident had aggravated some of those injuries but, as stated above the second accident is really not important to this appeal.
The appellant claims that following both the accidents and as a result of them he suffers from continuing disabilities including pain in the neck, back and left shoulder. He says he has a restriction of neck movement, headaches, impairment of vision, psychological depression, anxiety, loss of memory, partial loss of hearing and partial loss of vision in the right eye; also severely restricted use of his left arm and an ongoing need for various drugs and medical attention. He says that he is restricted in many of his activities. He claims to have suffered the loss of his employment and any capacity for gainful employment.
The respondents claim amongst other things, that the psychological depression and drug dependency suffered by the appellant were unrelated to the accidents; further that any loss or damage in connection with the appellant's employment was incurred by him due to poor business judgment and dishonesty.

Commissioner's Reasons for Judgment

In his reasons for judgment the Commissioner dealt extensively with aspects of the appellant's life and business career prior to the accident in February 1989. The appellant had a fairly extensive and varied business career in England. He and his family migrated to Australia on 30 August 1988. He was almost immediately appointed Director of Retailing for a group of furniture companies in Western Australia. He commenced his employment on $750 gross per week plus commission on his personal sales and a 2 per cent share of the net profit of the group of companies. He was supplied with a new Ford Falcon sedan. The learned Commissioner found that the appellant had made an auspicious start to his working life in Australia.
After the accident in February 1989 the appellant went to his place of employment. Later that afternoon or in the early evening he attended at the surgery of Dr Judelman, a general practitioner at Ballajura. Dr Judelman's notes record that on that attendance the appellant had "tender low back, going down to right hip; tender left chest wall. Advised."
Dr Judelman said in evidence that he had no independent recollection of that consultation. His note as described above was the only contemporaneous record of it. The Commissioner found that it appeared that on that occasion no medication had been prescribed and no form of therapy suggested. He said that that seemed curious in light of the appellant's account in his evidence including that he had become so ill at work that he had driven home early.
The appellant said:
"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 also had pain in my right hip running down my right left 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."
One of the appellant's sons said in evidence that his father had complained of pain on the day after the accident but he could not recall what he had said. Another of his sons said that the appellant had had an accident on the relevant day. There was no evidence from his other two sons. The only son old enough to have a driving licence did not give evidence. The Commissioner found that neither of the children who had given evidence confirmed the appellant's account.
The physiotherapist, Mrs Steed, said in evidence that she had treated the appellant for the first time on 27 February 1989 which was some three weeks after the accident. She had not done so on the day of the accident.
In his evidence the appellant referred to a schedule of prescribed medication which showed that the first prescription of medication was on 25 February 1989. That was for 25 20mg "Feldene" tablets, being an anti‑inflammatory medication.
The Commissioner said that the 25 February was the day of the appellant's second attendance upon Dr Judelman which was 19 days after the accident on 6 February 1989. Concerning that occasion Dr Judelman's notes recorded:
"Problems with neck. Tender trapezius muscles left and right. No limitation of movement. Headaches. Treatment - Feldene, physio."
In his evidence the appellant insisted that he had been prescribed medication on 6 February 1989, being the analgesic "Digesic".
The Commissioner found that when the appellant had attended Dr Judelman he had had the complaints noted by the doctor in writing. On the first occasion there had not been a prescription of any medication or referral to any therapy. That was an important finding.
The Commissioner noted that Dr Judelman's notes had not mentioned any pain, bruising, headache or any limitation of movement on the first attendance. He noted that the appellant had resumed work as usual on the following day and had remained at work on a full time basis until 23 May 1989. He noted that 19 days after the accident the doctor had not recorded any limitation of movement although he had prescribed anti‑inflammatory medication and physiotherapy.
The Commissioner found that the appellant had first attended on the physiotherapist on 27 February 1989 and had attended on four occasions with a three week break between the third and fourth attendance.
When the appellant attended on Dr Judelman on 1 April 1989, the doctor noted: "Still bad headaches, limitation of movement on extreme movements. Still working, acupuncture." On that occasion Dr Judelman prescribed 50 Digesic tablets.
Dr Skerrit, a psychiatrist, said that "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 Commissioner noted that the appellant's attendance on Dr Judelman on 1 April 1989 had marked the first prescription of analgesic medication. Thereafter Dr Judelman had prescribed Digesic tables and temazepam which he described as a sleeping tablet.
The appellant continued to attend for physiotherapy and also to attend on Dr Judelman. Dr Judelman continued to prescribe Digesic and Naprosen tablets; also temazepam. On 27 May 1989 he prescribed 25 Rohyponol. Naprosen is an anti‑inflammatory medication. The Rohyponol was prescribed as a sleeping tablet.
A business associate of the appellant's said in evidence that both before and after the accident on 6 February 1989 the appellant had performed his normal duties at work, which included lifting and manoeuvring furniture. The appellant had appeared healthy and free of any injury or disability. He had made no complaint at that time that he was unable to manage his work or to the effect that he had difficulty in doing so.
Another witness who was an agent for the furniture business recalled being advised by the appellant that the accident had done slight damage to the back of his vehicle. The witness thought that the appellant had suffered no injury.
The secretary at the appellant's place of business said that there had been no effect on the appellant's ability to work after the accident. She said that he had continued carrying out the same duties as he had before the accident. He had been able to lift furniture.

Deterioration in Relationship at Employment

The Commissioner found that the appellant's relationship with his employer had begun to deteriorate and that the sales at the business in February, March and April 1989 did not go very well. His employer said in evidence that in early May the appellant had started to become quite agitated. About mid‑May the appellant had told him that he was not happy as a director of the business.
A female employee of the business said in evidence that the relationship between the appellant and his employer had commenced to deteriorate in the beginning of 1989. The appellant had thought he did not have enough say in what was ordered and in the running of the store. He had thought his employer should keep his nose out of things. The witness said that in April or May 1989 the appellant had started "scheming to get involved in his own business venture." She thought the appellant was being disloyal to the business. The employer had indicated to her that he was already aware of the appellant's disloyalty.
The Commissioner found that there had been a deterioration in the relationship between the appellant and his employer leading up to May 1989 and that from about April 1989 the appellant had been preparing to leave that employment and begin his own business in the furniture trade. The Commissioner found that until May 1999 the appellant had continued to work, showing no sign "to the observer at work" of any disability or limitation of movement. Further that the appellant was planning to launch a new business and that suggested that the appellant did not contemplate a disability or limitation of movement.
On the 23 May 1989 the appellant resigned his directorship in his employer company. On the same day the appellant claimed that he had had an accident in the store when he and another salesman had mishandled a sofa they were lifting. Following that accident Dr Judelman signed certificates saying that the appellant had been unfit for work from 23 May 1989 until early September of that year. In a worker's compensation report to the insurance company, the appellant said that the date of his injury was 6 February 1989. That referred to the motor vehicle accident. The Commissioner found that that report appeared to have been completed by him and signed by him as employer on 30 May 1989. The appellant said in evidence that the accident on 23 May 1989 had made his symptoms "a little more painful."

Appellant's New Venture

On 2 June 1989 the appellant and his wife travelled to Singapore. They conducted various business discussions. The relevant person in Singapore had on the 9 June 1989 written to the appellant and his wife offering "your company" the exclusive right to sell and market "leather sofa seats" in Western Australia only, and exclusively in respect of certain models in the whole of Australia.
The appellant's employer had not been aware of the appellant's intention to travel to Singapore. The appellant had told him that he had gone there with his wife to buy furniture products to set up a furniture business for his wife. The employer had been informed by the appellant that he was acting within his rights. The appellant had assured his employer that he was importing the goods for his wife and that it would not conflict with his employment.
The appellant said in evidence "On 2 June 1989 I went up to Singapore with my wife, mainly for a holiday, but partly to check out furniture for a business my wife was setting up at that time." The Commissioner said:
"I do not accept that evidence. I find that the journey to Singapore was specifically for the purpose of contacting a prospective manufacturer and supplier of leather furniture and negotiating a contract for the business about to be launch by Patrick and Dorothy Ruffle." [The appellant and his wife].
That is an important finding, particularly on the question of credibility.
Dr Judelman eventually referred the appellant to the pain specialist, Dr Giles. The Commissioner commented that there "was an air of unreality" between what the two doctors had reported on 8 July 1989 and 8 September 1989 when compared with the appellant's own evidence about what had occurred in Queensland at the time, let alone the evidence of those who were there, who differed from him as to the degree of work and the physical nature of work undertaken by him. The Commissioner said he was inclined to the view that the medical practitioners were being misled.
Again that is an important finding. It is a finding on evidence which the Commissioner had heard.
Dr Giles reported on 7 November 1989 and mentioned certain facts including that the appellant had gone back to work on 14 July 1989 "until dismissed sometime in August. He was dismissed, he said, because he was unable to do his job." The Commissioner said:
"I am confirmed in my inclination that Dr Giles was being misled by the plaintiff because the foregoing passage clearly does not reflect what occurred at the time."
That is a significant finding.
A witness from Brisbane who had worked with the appellant when he had gone to Brisbane in connection with his work for his employer in Western Australia gave evidence that whilst in Brisbane the appellant had told him that he (the appellant) was setting up a business in Western Australia. The appellant had asked the witness to be his agent for the appellant's business in the Eastern States. The witness said he had not been interested in this because he was employed by the same employer as the appellant was and he was loyal to him. The two of them had had a small argument because the witness would not work for the appellant. The appellant said in evidence that that witness had fabricated his evidence "because he was really pissed off with me while I was over there."
The Commissioner found that whilst the appellant and his wife had been in Brisbane in 1989 they had been in the throes of setting up a business for themselves. The Commissioner found that it would have been necessary for the appellant and his wife to conceal the appellant's true intent from the appellant's employer. The Commissioner found "that that was what they attempted to do."

The appellant said in evidence that his employer had not told the truth about a confrontation between the two of them concerning what the witness in Brisbane had said being that the appellant had offered him a job in a furniture business in competition with the appellant's employer. The Commissioner found:
"I do not accept that at the time of the parting of the ways between the plaintiff and Kim Gascoigne the plaintiff's intention was to remain working with Gascoigne. My finding is to the contrary."
The Commissioner made another significant finding. He said:
"The plaintiff was strenuous in his denials that he was involved in the business Clever Leather Designs. My assessment of the evidence is that he was."
The appellant attended on Mr Ingram Cromack in June 1990. Mr Cromack reported that at that time the appellant was "experiencing very considerable business worries and that a lot of money appeared to be involved." Mr Cromack thought that the appellant's main problem at that time had related to "tension worry" over his business difficulties. He suggested a referral to a neurologist.
In August 1990 the appellant attended upon Mr S Gubbay, a neurologist. Mr Gubbay recorded that about two weeks after the accident on 6 February 1989 the appellant had started to have episodes of collapse for no reason. The appellant had told him "that there had been six occasions when he had experienced major attacks and passed out for brief periods, and four occasions when he had experienced minor attacks but had not passed out."
In September 1990 the appellant told Mr Hill that in August 1989 he had been dismissed from his post because the other directors felt he could not manage his work and that he needed time off work to allow for recovery. The Commissioner said:
"I note also, that to the extent that they have recorded, in each case the plaintiff's recent work history, what they were told does not seem to accord with the known facts. Again I would comment, as I did in relation to Dr Giles' report referred to earlier, that there does appear to be a fairly significant disparity between what was happening in the plaintiff's life as observed by others, and what was complained of by him to the medical practitioners referred to above."
Again that is an important finding.
With respect to the sale of a business the Commissioner said of the appellant:
"His evidence runs quite contrary to that of his wife and that of Ronald Atkinson. Where there are differences I am inclined not to accept his account."
A Mr Smedley gave evidence that he had paid the appellant about $10,000 to purchase the rights to sell certain products in Victoria. The Commissioner said:
"The plaintiff in cross examination denied that he had sold the rights or received any money at all from Reginald Smedley. I accept that the money was paid."
A most important finding of the Commissioner is as follows:
"In his cross examination the plaintiff attempted to assert firstly that when the business of Colonial Enterprises Pty Ltd was sold it was not running at a loss and secondly, if it was, it was the fault of Messrs Lawrence and Blake, they having resigned their directorships during his absence in Singapore and without his knowledge. He also suggested that they had been dishonest and disloyal, speaking with his competitor Kim Gascoigne, and taking machinery and leather from the business. I do not accept that such was the case. This approach became characteristic of the plaintiff's evidence. He repeatedly sought to denigrate and attribute sinister if not criminal behaviour to those who gave evidence contrary to that given by him."
Dr Judelman gave the appellant his first injection of pethidine on 7 September 1991. Dr Judelman said he would have done so because of the appellant's complaints of pain.
Having discussed some further medical evidence the Commissioner said:
"The pattern of disparity between the facts as I have found them to be, and what was reported to medical practitioners both in terms of the severity of the motor vehicle accident of 6 February 1989, the history of the plaintiff's work and business dealings and his disability by reason of his pain continues to repeat itself."
The Commissioner concluded:
"When the plaintiff arrived in Australia his work experience and the substantial basis of his ability to earn an income was in the area of the manufacture and sale of leather furniture, particularly in the area of sales. In that field, in a space of about 2 1/2 years, the plaintiff had progressively burnt his bridges, firstly alienating himself from the opportunities presented by employment with the Gascoigne group of companies in the very field of his expertise and, secondly, in his failure to compete with his former employers and others, both in the areas of manufacturing and sale, in a market which was different and significantly smaller from that in which he had operated in the United Kingdom. The plaintiff has persistently sought to attribute these set backs and failures to the effects of his motor vehicle accident on 6 February 1989. I do not accept that such was the case."
Importantly the Commissioner continued:
"… I find that the plaintiff was a calculating and savvy businessman who by a combination of greed, deceit and over confidence, over reached himself thereby largely destroying in a fairly short time, his capacity to earn a substantial income in his primary field of expertise."
The Commissioner stated:
"Having reviewed all of the evidence, including the medical evidence, I am inclined to the view that on the balance of probabilities there was likely to have been deliberate exaggeration by the plaintiff, not just to Dr Hewitt, but to a range of medical practitioners as to the intensity of his symptoms."
The Commissioner referred to Dr Skerritt having had contact with the appellant from time to time until in May 1994 when he was approached at the Pain Clinic at Royal Perth Rehabilitation Hospital by the plaintiff. The Commissioner said: "By then the plaintiff was well and truly addicted to pethidine and his visit reflected that." The Commissioner said:
"The records of the hospital indicate that the plaintiff's pethidine dependence had become established by mid 1993 and that he had a history of excessive use of other analgesics and narcotics plus Benzodiazepine abuse. The problem had grown such that in mid 1994 the plaintiff was suffering withdrawal symptoms within a matter of hours of not having pethidine. From at least mid 1993, if not earlier, the plaintiff had been privately injecting pethidine intravenously, his general practitioner, Dr Judelman prescribing pethidine, needles and syringes from about June 1993. The plaintiff had developed multiple septic ulcers from his intravenous injections."
The Commissioner recorded that Mr Skerritt thought that the appellant suffered from an anxiety disorder, the disorder having been provoked at the time of the accident and causing symptoms subsequently. The Commissioner found that the appellant was and may still be subject to episodes of panic and anxiety. He said:
"I find that there have been several such attacks both prior to and subsequent to the plaintiff's emigration to Australia in 1988. Whether it be the case that the susceptibility to such attacks can be properly referred to as a disorder or otherwise, I find that the susceptibility is not causally related to either of the motor vehicle accidents under scrutiny."
During the course of this appeal there was some comment from the appellant's counsel concerning whether or not it was "the susceptibility" which was relevant rather than what had happened to the appellant which was causally related to the accident. However in my view, in the above passage, the Commissioner was explaining that the appellant had had a susceptibility to attacks of panic and anxiety, particularly during times of stress. That finding does not detract from the Commissioner's reasoning concerning the claim.
The Commissioner also found that the appellant had failed to establish a causal relationship between the motor vehicle accident of 6 February 1989 and damage to "the long thoracic nerve of Bell" and the associated winging of the scapular.
The appellant's wife had said in evidence that the appellant's addiction to pethidine had commenced in about 1992. It was well entrenched by 1993. The learned Commissioner found that he was not satisfied on the balance of probabilities:
"that any difficulties he [the appellant] might have experienced, by way of sleep disturbance or sleep apnoea, not attributable to the winged scapular and the damage to the long thoracic nerve of Bell, were in any way causally connected to the motor vehicle accident of 6 February 1989."
When referring to a report from Dr D Cherry who gave evidence, the Commissioner said:
"In that report he recorded the detailed history presented to him by the plaintiff. It bears all the hallmarks of the plaintiff's customary embellishment."
After discussing the evidence about the appellant's sexual dysfunction the Commissioner concluded:
"In all the circumstances I am not satisfied on the balance of probabilities that the plaintiff now has no sexual function as claimed in his evidence in chief, and in any event, if there were such a disability, I would not be satisfied on the evidence before me, on the balance of probabilities, that it was in any way related to the motor vehicle accident of 6 February 1989."
With respect to the appellant's evidence in connection with an injury to his teeth and jaw dysfunction, having discussed the evidence the Commissioner said:
"Having regard to his statement of claim the plaintiff does not include tempero mandibular or dental problems as continuing disabilities."
The Commissioner allowed the cost of certain past treatment for injury to the appellant's teeth and jaw dysfunction - also a sum for general damages in this regard.
The Commissioner referred to certain evidence from psychiatrists and commented:
"The foregoing is in keeping with my earlier findings with the plaintiff attributing every adverse life event to the motor vehicle accident of 6 February 1989."
The Commissioner found:
"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."
When discussing whether or not the plaintiff's drug addiction could have been caused by the accident on 6 February 1989, the learned Commissioner referred to March v Stramare (E&HM) Pty Ltd (1991) 171 CLR 506 per Mason CJ at 515 and Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 1‑7 where Deane, Dawson, Gordon and Toohey JJ discussed the question of causation in negligence. The Commissioner concluded:
"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 3 1/2 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 commonsense and experience is properly to be seen as having caused the plaintiff's addiction to prescribed medication. My finding is that it did not."
The learned Commissioner said:
"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 … Those factors combined with the plaintiff's preparedness to mislead and manipulate medical practitioners along with the compliance of his general practitioner … 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."
The learned Commissioner said:
"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 medications 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."
The Commissioner also found that he was not prepared to accept on the balance of probabilities "that the appellant was suffering from depression by reason of his complaints to medical practitioners in that regard." Further, that to the extent that the appellant did become ultimately clinically depressed, the Commissioner's finding was "that it was associated with the appellant's addiction to prescribed medication which developed later."
The Commissioner made an award of damages on the basis that as a result of the accident on 6 February 1989 the appellant had suffered 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. He awarded the appellant $25,000 by way of general damages. He said he was not prepared to make an award for past and future economic loss because he was not satisfied that when the plaintiff ceased work on 23 May 1989 he did so for reasons associated with the injuries 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."
The Commissioner was also not prepared to find that the financial loss suffered by the appellant after that time was attributable to the motor vehicle accident of 6 February 1989. He found that although the appellant ceased any form of endeavour to obtain gainful employment in about mid 1992 and had not worked after that time, that was not because of injuries suffered on 6 February 1989 but because of other factors. With respect to the fact that he now has no capacity for work the learned Commissioner found that:
"To the extent that that may be so, I am not prepared to find that his current incapacity for work is resultant upon the injuries suffered by him in the motor vehicle accident of 6 February 1989."
The Commissioner also found that any incapacity for work was not due to the second motor vehicle accident with the result that he made no allowance for economic loss. He also found that the soft tissue injuries suffered in the first accident would in all probability have resolved themselves well prior to the second accident.

Conclusion

Counsel for the appellant argued the appeal comprehensively with a command of the facts involved in the claims. However, in my view nothing which he advanced can be said to have invalidated the learned Commissioner's findings. Those findings were most comprehensive. The Commissioner went into great detail in his analysis of the various claims which had been put forward by the appellant.
I can see no error in the learned Commissioner's reasoning or conclusions. On the contrary the Commissioner's conclusions seem to be well supported by the evidence. The appellant did not establish to the Court that he had suffered the injuries and damage which he claimed had been caused by the two accidents.
It was submitted for the appellant that by reason of the medical evidence and the fact that the appellant had no drug problem prior to the accident, he had raised a prima facie case that his addiction to medication was caused or materially contributed to by the injuries suffered in the

accident. However the learned Commissioner found that that was not the case and on the evidence he was entitled to come to that finding.

The case was fought for the respondents on the basis that the appellant's drug dependency and certain damages were not related to the accident. It was the appellant's task to establish that they were. He failed in that regard. There was sufficient evidence to justify the learned Commissioner's findings. No error has been established in relation to the way in which the Commissioner approached the evidence.
The appellant contended that where a defendant has suggested that a pleaded condition has an alternative cause, that alternative cause normally ought to be pleaded and that having pleaded the alternative cause the defendant has an obligation to prove it with some reasonable measure of precision.
What the respondents did in this case was to deny that most of the problems which the appellant had were caused by the accident. That does not put an obligation on a respondent to prove the alternative cause of the appellant's problems. The appellant's obligation is to establish on the balance of probabilities that the relevant problems have been caused by the negligence of the respondent. If he fails in that regard he fails to prove his case. Medlin v State Government Insurance Commission (1995) 182 CLR 1; Purkess v Crittenden (1965) 114 CLR 164 at 168. That is what happened in this case. Much of the medical evidence which was relied upon by the appellant was weakened in its effect due to the appellant having actively tried to enhance his claim for damages.
In my view the appeal should be dismissed.
ANDERSON J: This is an appeal from a judgment of Commissioner Eaton in the District Court at Perth, delivered on 11 April 2000 whereby the learned Commissioner awarded to the plaintiff $38,270 damages for personal injuries sustained in two traffic accidents, the first occurring on 6 February 1989 and the second on 19 August 1993.
It was the appellant's case that most of his injuries stemmed from the first accident when the vehicle he was driving was struck from behind while stationary. It was not a severe impact. The two vehicles sustained only moderate damage. The appellant's vehicle was repaired for about $600. The appellant pleaded in his statement of claim that he suffered shock, soft tissue injury to the cervical, thoracic and lumbar areas of the spine, concussion, an injury to the thoracic nerve and injury to the nerves in the groin area. The Commissioner described these injuries as "not

severe" (judgment par 331) and that is a finding well supported by the evidence and from which there is no appeal. There was ample evidence to the effect that the appellant made a reasonably rapid and full recovery from the physical damage. He returned to work within a matter of days and there was evidence from work colleagues that thereafter he appeared to carry out his duties in a normal manner. The award of general damages for physical injuries sustained in the first accident was $25,000 and the award of general damages for physical injuries sustained in the second accident was $450. The special damages awarded in respect of the first accident were $5,280.50 and the special damages, mostly dental treatment, awarded with respect to the second accident were $7,540.

By his grounds of appeal, the appellant pleads that "the damages awarded by the learned Commissioner for both accidents were outside the scope of a sound discretionary judgment … " The challenge is not now to the discretionary judgment by which the learned Commissioner assessed appropriate damages for the physical aspects, but to the Commissioner's rejection of the appellant's case at trial that, by reason of the first accident and the treatment administered to him following that accident, he became addicted to pethidine which totally and permanently destroyed his earning capacity and much of his enjoyment of life.
The learned Commissioner did find that the appellant became addicted to pethidine some time after the happening of the first accident and that his addiction to pethidine did seriously affect his capacity to function normally and to work. However, the Commissioner was not persuaded that this was a consequence of the injuries sustained in either of the two accidents. The appeal is confined to this point.
In my opinion, it was open to the Commissioner to come to the conclusion which he did.
The appellant's general medical practitioner was Dr Judelman and there is evidence that the first relevant prescription of drugs for the appellant was written by one of Dr Judelman's colleagues, Dr Minsker, on 25 February 1989, not quite three weeks after the first accident. This was for an anti‑inflammatory drug with the trade name Feldene and 25 tablets were prescribed. On 1 April 1989, some weeks after the appellant had returned to normal duties at his place of employment, Dr Judelman prescribed 50 tablets of Digesic. There is evidence that this is mixture of paracetamol (commonly known by the trade name Panadol) and dextropropoxyphene and is a relatively mild painkiller. In the period from 1 April 1989 to 29 August 1991, the appellant was given a total of 30 prescriptions for Digesic, amounting to a little more than 3,000 tablets. In addition, he was given prescriptions for several other drugs from time to time, but in not nearly such copious quantities. Most of these prescriptions were written by Dr Judelman who, it appears, simply did so without questioning the appellant's complaints of pain and his claims to need the drugs in question.
The appellant appears to be a rather unusual person. The Commissioner found that he fabricated symptoms to his doctors and that as part of his makeup he is generally given to untruthfulness, embellishment and exaggeration. The Commissioner found Dr Judelman to be compliant and unquestioning in his writing of prescriptions for the appellant. Implicit, if not expressed, in the Commissioner's very lengthy judgment is that the appellant did not need the prescriptions that he was given either of Digesic or of the other drugs - at any rate, not to alleviate any symptom that may have been a lingering result of the injuries which he sustained by reason of the defendants' negligence. He obtained his prescriptions by misrepresenting his symptoms and his condition to a doctor who applied no clinical judgment or assessment to the case.
The first dose of pethidine which the appellant received was by injection at the hands of Dr Judelman on 7 September 1991, about two and a half years after the first accident and long after the appellant had apparently recovered from the physical injuries sustained in that accident. His next dose of pethidine was given by Dr Judelman on 5 February 1992, five months later. Of this period, the Commissioner said:
"The pattern of disparity between the facts as I have found them to be and what was reported to medical practitioners both in terms of the severity of the motor vehicle accident of 6 February 1981, the history of the plaintiff's work and business dealings and his disability by reason of his pain continues to repeat itself. One constant during the period was the continued consumption of analgesics, particularly Digesic and, more ominously, the first injection of pethidine on 7 September 1991. As evidenced by the plaintiff's complaint to Dr Salmon, his description of his circumstances had become quite florid. Between that first injection of pethidine and the next on 5 February 1992 the range of medications being taken by the plaintiff expanded to include Prozac. There is the strong suggestion on the evidence of a growing addition to prescribed medication."
It is not the appellant's case that he needed pethidine to alleviate any pain condition resulting from the injuries sustained in the accident. His

case is that, by reason of the accident, he became dependent on the prescription drugs which Dr Judelman and his colleagues were prescribing and this progressed to pethidine to which he became hopelessly addicted. In this way, his addiction is said to have been caused by the defendants' negligence.

As I have said, the Commissioner rejected this claim and, in my opinion, he was right to do so. It is drawing too long a bow. As I have said, there is little or no evidence that the copious quantities of Digesic which were being prescribed by Dr Judelman were reasonably necessary as treatment for such symptoms as he may have continued to suffer. His attendances at Dr Judelman's practice to obtain prescriptions for this and the other drugs which he was given is not shown to be casually connected to the accident. For all that is known, he was simply using the fact of the accident (by fabricating symptoms) to get the drugs. It seems to me that the chain of causation breaks down at this point. But, in any event, there is no evidence that Digesic is addictive in itself, that is, produces a craving for more of that drug. The chain of causation fails here also. There is no evidence that there is any process of succession from Digesic to pethidine. There is therefore no evidence that the appellant's first injection of pethidine in September 1991 was connected to the accident.
It is not as if there is no other explanation for the progression that occurred in the appellant's demand for and (presumably) his consumption of prescribed medications. Throughout the period in question, he was undergoing personal, domestic, business and financial difficulties and pressures of considerable proportions quite unrelated to the accident.
I am not persuaded that the Commissioner erred in rejecting the appellant's case that his drug addiction was caused by the negligence of either of these defendants and I would dismiss the appeal.
STEYTLER J: I have had the advantage of reading the reasons for decision to be published by each of Wallwork and Anderson JJ. I agree with them and with their conclusion that the appeal should be dismissed. I wish to add only a few, very brief, comments of my own.
Counsel for the appellant acknowledged, in the course of his submissions, that the appellant had misled his doctors, including Dr Judelman, as regards his presentation. He also acknowledged that Dr Judelman was, as he put it, "reckless" in over‑prescribing drugs. There is consequently no real contest as regards the Commissioner's finding (par 317 of his reasons) "that the … [appellant's] manipulative behaviour

and the doctor's compliance were key factors in the establishment and maintenance of the … [appellant's] addiction". The Commissioner found (par 325 of his reasons), in effect, that this confluence of factors led to the consequences complained of by the appellant and that these were not caused by the negligence of the respondents. Whether that was, or was not, so was "very much a matter of fact and degree": (see Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 at 528, per Gibbs CJ and Mason, Wilson, Brennan and Dawson JJ and Chapman v Hearse (1961) 106 CLR 112 at 122). As each of Wallwork J and Anderson J has said, it was, on the evidence, entirely open to the Commissioner to reach the conclusion at which he arrived.

I should add that counsel for the appellant contended that, because there was no plea that Dr Judelman had been negligent, it was not open to the Commissioner to make a finding which depended upon his "compliance". I am unable to accept that that was so. The respondents ran a case to the effect that the appellant misled his medical advisers, including Dr Judelman. The fact that Dr Judelman was unquestioning and compliant, and therefore more easily misled, did not need to be pleaded.