Shergold v Edwards
[2016] WADC 150
•12 OCTOBER 2016
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: SHERGOLD -v- EDWARDS [2016] WADC 150
CORAM: STAUDE DCJ
HEARD: 3-7, 10-11, 13-14, 17-21, 24-26, 28 AUGUST & 1 DECEMBER 2015 (PLAINTIFF'S AMENDED CLOSING SUBMISSIONS RECEIVED 23 MAY 2016)
DELIVERED : 12 OCTOBER 2016
FILE NO/S: CIV 3312 of 2009
BETWEEN: ANDREW MARK SHERGOLD
Plaintiff
AND
NORMA CAROLINE EDWARDS
Defendant
Catchwords:
Personal injuries - Motor vehicle crash - Assessment of damages - Causation of injury - Turns on own facts
Legislation:
Civil Liability Act 2002
Motor Vehicle (Third Party Insurance) Act 1943
Result:
Damages assessed at $52,450
Representation:
Counsel:
Plaintiff: In person
Defendant: Mr TJ Hammond
Solicitors:
Plaintiff: Not applicable
Defendant: WHL Legal Pty Ltd
Case(s) referred to in judgment(s):
Abram v Bank of New Zealand (1996) ATPR41‑407
AMP v RTA; RTA v AMP [2001] NSWCA 186
Cachia v Haynes [1997] HCA 14; (1994) 179 CLR 403
Graham v Baker [1961] HCA 61; (1961) 106 CLR 340
Husher v Husher (1999) 197 CLR 138
Macpherson v The Queen [1981] HCA 46; (1981) 147 CLR 512
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Neil v Nott (1994) 68 ALJR 509; (1994) 121 ALR 148
Paul v Rendell (1981) 55 ALJR 371
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 16
Strong v Woolworths Ltd [2012] HCA 5
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
STAUDE DCJ:
Introduction
The plaintiff, Mr Shergold, was born in the United Kingdom on 31 January 1962 and is a stonemason by trade. On 25 August 2007 Mr Shergold was the driver of a stationary Ford Transit van which was struck from the rear by a Mitsubishi Magna sedan driven by the defendant. The collision occurred on Tyrant Close, Willetton. Mr Shergold claims damages for personal injury caused by the crash. The defendant's liability for negligence is admitted.
The claim of Mr Shergold was heard together with that of his former wife, Merry Sondang Shergold, who was a passenger in the vehicle at the time of the crash. The trial took four weeks and produced over 1,300 pages of transcript. The court received 130 exhibits. In addition to the plaintiffs, the court heard from many expert and lay witnesses. Separate reasons for decision are given in each case. Because the cases have a number of common features, some parts of my reasons in each will be similar.
The delivery of these reasons has been delayed in part by the failure of Mr Shergold to provide a written outline of closing submissions as he indicated he would do. When the evidence concluded on 26 August 2015 the trial was adjourned to 28 August for the hearing of closing submissions. Mr Shergold was invited to make submissions as to what findings of fact were sought on the evidence at trial. Mr Shergold did not appear when the trial resumed. It was further adjourned to 1 December 2015. When Mr Shergold did not appear on that date I directed that a written outline of closing submissions be filed and served by 29 January 2016. Mr Shergold's written closing submissions (108 pages) were eventually received by email on 20 May 2016; his amended submissions on 23 May 2016.
Issues
Mr Shergold alleges that as a consequence of the crash he sustained the following injuries (statement of claim, par 19):
(a)mild brain trauma and neuropsychology injury [sic] as a result of the accident;
(b)bruised and graze [sic] occipital region of the head;
(c)soft tissue injury to the lumber [sic] spine;
(d)soft tissue injury to the neck and upper shoulders;
(e)bruised lower anterior chest wall;
(f)injury to right hip and knee.
It is noted that the pleaded particulars of injury in this case are virtually the same as those pleaded by Ms Shergold in hers, doubtless because Mr Shergold pleaded both claims. As in Ms Shergold's case, the ambit of the claim is large. The amended particulars of damages dated 20 March 2015 detail a claim for losses amounting to nearly $4 million and, in the closing submissions, $4.7 million.
The defendant denied in her defence that Mr Shergold suffered any compensable injury. The defendant's position at trial was that if he were injured, Mr Shergold suffered no more than minor soft tissue injuries from which he recovered within a few months. The defendant attributes his ongoing complaints of injury, loss and damage to other potential causes, including a prior crash in 2001 and pre-existing psychiatric and physical conditions as detailed in the re-amended defence dated 25 March 2015. The defendant also contends that Mr Shergold has failed to mitigate his alleged loss and damage by failing to do remunerative work for which he is fit and suited.
Self-representation
Both Mr Shergold and Ms Shergold were unrepresented at the trial despite having previously been represented from time to time by four different law firms. It is unusual in the experience of this court for a plaintiff to be unrepresented in a claim for damages where liability is admitted. Although I draw no inference against Mr Shergold by reason of his being unrepresented, I do not accept his submission that it is due merely to impecuniosity.
A litigant has a fundamental right to appear in person: Cachia v Haynes [1997] HCA 14; (1994) 179 CLR 403, 417. The duty of a trial judge is to give a litigant in person such information and assistance as is necessary to ensure that he or she has a fair trial: Macpherson v The Queen [1981] HCA 46; (1981) 147 CLR 512, 534. It is well recognised that what a judge must do to assist a litigant in person depends on the litigant, the nature of the case and the litigant's intelligence and understanding of the case: Abram v Bank of New Zealand (1996) ATPR41‑407, 42, 347. It has also been observed by the High Court that, frequently, the court must assume the burden of endeavouring to ascertain the rights of parties where they may be obfuscated by their own advocacy: Neil v Nott (1994) 68 ALJR 509; (1994) 121 ALR 148.
In this case the court sought to ensure a fair trial of Mr Shergold's claim by making pre-trial directions requiring him to prepare an outline of submissions, a statement of his evidence and a bundle of documents for use at trial. There were two directions hearings; 27 March 2015 and 10 July 2015. During the trial all reasonable assistance was given to Mr Shergold for the purposes of securing the attendance of his witnesses and the reception of as much documentary evidence as was relevant to his claim.
Notwithstanding that, Mr Shergold clearly has, I accept, a lifelong difficulty in written expression; he has been able to engage in tertiary studies and has acquired a Bachelor degree. His documentation was notable for its spelling and syntactical errors, but was otherwise cogent and comprehensible, as were his oral submissions.
With the assistance of his brother (according to what the court was told), he was able to prepare all the documentation for his trial, and to give considerable help to Ms Shergold with hers.
I was satisfied that both plaintiffs were able to understand the directions, suggestions and rulings that were made during the course of the trial, and the reasons for them. The court assisted from time to time during the examination of Mr Shergold's witnesses and in his cross‑examination of the defendant's witnesses to ensure that all pertinent questions were asked.
Occasionally, during the course of the trial, I made observations aimed at ensuring that Mr Shergold understood the issues on which he bore the onus of proof. My comments regarding the absence in his case of primary accounting records prompted him to disclose several hundred pages of business invoices that had not previously been discovered; the defendant being granted an adjournment in order to enable counsel to deal with them. Mr Shergold's improbable explanation for the non-disclosure was that he was not aware the documents were discoverable. While Mr Shergold might be criticised in this regard, the conspicuous failure of the defence to obtain further and better discovery of these documents may also be deprecated.
When the trial commenced no witnesses had been subpoenaed. Mr Shergold had been warned in the directions hearings of the need to secure the attendance of witnesses, if necessary by subpoena. As is often the case in personal injury damages trials, a number of expert witnesses were reluctant to attend court without being paid. It was explained to Mr Shergold that if he could not afford to pay such witnesses he had to subpoena them, unless the defendant agreed to their reports being tendered by consent.
Most of the witnesses sought to be called by Mr Shergold attended. Some gave evidence by video or audio-link. In the case of a couple of medical witnesses who would not attend, orders were made permitting their reports to be tendered pursuant to s 79C of the Evidence Act 1906. By and large, the defendant did not take technical points with respect to evidential matters.
Mr Shergold displayed at all times a sunny and positive disposition. It did not strike me as incongruent. I observed him to apply himself purposefully and with energy to the difficult task of running his own case and assisting Ms Shergold with hers. Mr Shergold never lost his composure. He was polite and respectful throughout the trial to the court, defence counsel and the witnesses, except for occasionally raising his voice in cross-examination of the defendant's experts with whose opinions he disagreed.
The crash
As rear-end collisions go, the crash in question was fairly severe. There was no dispute that the defendant's vehicle collided with the rear of the vehicle of Mr Shergold at considerable speed. The defendant initially reported a speed of 45 miles per hour. She conceded this was an error. She recollected in her evidence a speed of 30 to 40 km per hour. She admitted that she simply did not see Mr Shergold's vehicle. Accordingly, she did not brake or otherwise control her vehicle so as to avoid the collision or reduce the impact.
The Transit van was heavier than the Magna. Even so, it was propelled 2 m forward and to the left so that the front left tyre struck the kerb. This degree of movement by a relatively heavy vehicle is consistent with a forceful collision, which the defendant's counsel conceded was capable of causing injury. Photographs show considerable damage to the left front of the Magna as well as substantial, though less conspicuous, damage to the right rear of the more sturdy Transit van. According to the vehicle assessor's report (exhibit 55), the van was valued at $7,500. The report described damage to the rear bumper, beaver panel, right rear door, right quarter panel, right rear rail and floor. Repairs were uneconomical. The claim for vehicle damage was settled for $6,818.16 to the satisfaction of Mr Shergold.
Mr Shergold professed a poor memory of the crash but gave a reasonably full account of it. He recalled his head being struck. There was a metal barrier behind the driver's seat. He said his head hit either the headrest of the seat or the metal barrier (ts 572). I find that it was probably the former.
He gave no evidence of any loss of consciousness, although he said he was dazed. He looked toward Ms Shergold. He realised the van had been pushed forward. He alighted and took photos of the other vehicle.
A tow truck was called. He and Ms Shergold were given a lift to the local police station where a crash report was made. Mr Shergold said he needed assistance to complete the form. That is consistent with his literacy problems. He and Ms Shergold then went by taxi to the Armadale-Kelmscott Hospital where they were examined.
According to the hospital records, Mr Shergold reported injury to his back and lumbar spine. He complained of pain in his low back and across the neck to the shoulders, and headache (exhibit 65). He underwent x‑rays of his spine and was prescribed analgesia and anti-inflammatory medication. He was discharged after some hours for follow-up by his general practitioner and physiotherapy. He was certified unfit for two days.
Mr Shergold sought to adduce evidence of the biomechanics of whiplash injury caused by rear-end collisions but had not complied with the rules governing the use of expert evidence. The documentary material which he sought to tender in his case, or put to the various medical experts, was ruled inadmissible on the grounds of relevance, hearsay and lack of expertise.
The court has no difficulty accepting Mr Shergold's submission that in accordance with the fundamental Newtonian principles, a vehicle occupant subjected to a rear-end collision will move backwards into the seat, then forwards, and backwards again. It is by this mechanism that the so-called 'whiplash' injury of the spine is caused.
This trial was not concerned with the capacity of the crash to cause the alleged injuries. In this regard, counsel for the defendant expressly conceded in the course of the trial that the defence did not dispute that there was some injury caused. Rather, the issue was the extent of the injuries alleged and whether they caused the loss and damage claimed by Mr Shergold. None of the expert evidence sought to be tendered by Mr Shergold was capable of proving a correlation between the forces applied to him by the collision and the extent of his alleged injuries.
Previous motor vehicle crash
Mr Shergold had been involved, again while in company with Ms Shergold, in a previous rear-end collision on 1 February 2001 in Queensland. Following that crash, in which Mr Shergold's vehicle was struck in the rear and propelled into the rear of another vehicle, he presented at hospital complaining of headache, pain in the neck, shoulders and upper thoracic spine. There was no history of loss of consciousness and there was no diagnosis of head injury. An x-ray of the cervical spine showed normal alignment apart from a slight scoliosis concave to the right and in the thoracic spine a normal alignment. The radiological report indicated that the slight cervical scoliosis could be due to muscle spasm.
At that time Mr Shergold was a patient at the Ipswich Road Medical Centre in Annerley, Queensland. The records of the medical centre, which were included in his trial bundle, were tendered by the defendant (exhibit 86). They indicate that prior to the earlier motor vehicle crash Mr Shergold had been treated with Zoloft for depression (Dr James Griffin, 20 October 2000) and had been diagnosed with cervical dysfunction, the symptoms of which were neck and left shoulder pain (Dr James Griffin, 22 November 2000).
He was seen by Dr Gail Bayliss on 2 February 2001, the day after the crash. The notes read:
Still has tender tight muscles. Tender particularly at base of neck, insertion into scalp and down spine to mid-thoracic area. Dullness into deltoid regions. No neurological symptoms or signs. Limited all RMs [range of movement].
He was prescribed Panadeine Forte. Dr Bayliss diagnosed a whiplash injury: 'Notice of Accident Claim' form dated 2 February 2001 (exhibit 85). On 15 February 2001 Dr Patricia Smart noted 'ongoing neck pain relating to MVA'. On 25 June 2001 Dr Edi Sottile noted a 'sore neck and back since flying for 8½ hours' and prescribed ibuprofen. On 31 July 2001 Dr James Griffin recorded lower back pain spreading to the upper back over the previous three days. He noted the history of the crash. On 10 October 2001 Dr Bayliss noted that Mr Shergold was still getting episodes of neck and back pain. On 3 November 2001 the notes read, 'complains of low back pain for four weeks' with reference to the crash. A referral to Dr Peter Jackson was made. A complaint of low grade pain, apparently from the low back, was noted on 3 October 2002.
Dr Jackson reported on 22 April 2002 that Mr Shergold had suffered a whiplash injury, but was able to participate in work, albeit with varying degrees of pain, stiffness and muscular weakness. His prognosis was for eventual recovery with no more than 5% permanent impairment (exhibit 60).
Mr Shergold was seen at the request of his solicitors by Mr Noel Langley, orthopaedic surgeon. Mr Langley's report dated 17 October 2002 (exhibit 61) records complaints of low back pain and ongoing neck and shoulder pain. Mr Shergold reported a lack of concentration for about six months after the crash. Before the crash he was working part-time as a stonemason two days a week. He had not returned to this work. He was studying full-time. His symptoms affected his study and prevented him from working as a stonemason.
Mr Langley's opinion was that the symptoms reported by Mr Shergold and his slight reduction of cervical and lumbar movement were consistent with the crash. Conservative treatment was indicated. Mr Langley considered that Mr Shergold would be able to return to work as a stonemason in the future, but lifting weights of more than 10 kg would aggravate his symptoms. He assessed a 10% permanent impairment of his body as a whole as a result of his spinal injuries.
Mr Shergold was also examined in relation to his prior claim by Mr Philip Hardcastle, orthopaedic surgeon, at the request of the third party insurer. Mr Hardcastle's report of 17 September 2003 is exhibit 123.2. He examined Mr Shergold on that date and obtained a history of neck and lumbar pain which had been treated with anti-inflammatory and analgesic medication.
Mr Shergold told Mr Hardcastle that he had ceased work, but had earned income by providing homestay accommodation to overseas students. He had had about 20 physiotherapy sessions for his neck and back before going on a trip to Indonesia, following which he had a further five or six sessions without any significant relief. He had been referred to a musculoskeletal specialist and had had 10 sessions of manipulative treatment which gave him temporary relief. He had not had any such treatment since the end of 2001. Mr Hardcastle reported that Mr Shergold started taking medication for depression in early 2003. Following the 2001 crash he returned to light masonry work on a self-employed basis in Queensland before moving to Western Australia in 2003. He had continued in business and was also studying. He denied any previous spinal symptoms.
Mr Hardcastle's report details his clinical examination. He diagnosed soft tissue injury to the cervical and lumbar spinal areas. The x-rays did not demonstrate any pathology of significance likely to lead to long-term disability. His symptoms were expected to improve considerably over the next few years and the permanent disability was likely to be small; no more than 5% loss of function of the cervical spine and a similar loss of function of the thoracolumbar spine. In relation to work, Mr Hardcastle observed:
Certainly, the history as described is consistent with him having to stop initially his work as a stonemason but I would have expected him to be able to get back to this work and in the long term I would expect him to be able to work in this capacity in a normal fashion although avoiding the very heavy lifting. He does though appear to want to pursue other studies but presently is continuing as a self-employed stonemason with certain restrictions.
He advised Mr Shergold against heavy lifting. Mr Shergold then started doing what he described as lighter stone work.
In evidence, Mr Shergold described the effects of the 2001 crash as follows:
I had a little bit of – from what I remember – a little bit of neck strain, a little bit of lower back. So the injuries – you know, were similar in nature to this one, but the 2007 one were a lot worse, you know? I was able to return to work progressively, you know? I was back at uni in March when it started and the accident was in February. I was having physio for a little while, while I was back at uni as well and in the early years, it did used to cause me a little bit of discomfort – a little bit of low back pain and a little bit of neck pain occasionally you know, but I got – after working for the couriers for 18 months – 2 years, obviously that had exercised me and toned me up a bit more and I wasn't getting any pain to that point in time.
In cross-examination he admitted that he had suffered a prior neck injury in Sydney, but had no other problems with his neck prior to the 2001 crash. He conceded, however, that he complained of neck pain to Dr James Griffin of Ipswich Road Medical Centre on 22 November 2000. He recalled that he had woken up with a 'crook neck'. He did not dispute the accuracy of Dr Griffin's notes. He confirmed that as a result of that crash he suffered neck and back pain.
He agreed with what Mr Langley reported of his examination on 9 October 2002, that:
He has aching, stiffness and pins and needles in his lower back with stabbing pain up the spine and headaches, aching and stiffness in his neck and towards his shoulders.
He confirmed that he told Mr Hardcastle in September 2002 that he had low back pain which ranged from four to nine out of 10 in severity. He also reported constant neck pain of varying severity.
He was then cross-examined as to what he told Dr Harper, which was that his neck and back pain resolved within about two and a half years. He agreed that it may have been longer; he could not remember (ts 703).
Mr Shergold agreed that he had suffered back and neck pain 'relatively constantly' from the 2001 crash (ts 711).
Subsequent medical history to date of crash
The Ipswich Road Medical Centre records (exhibit 86) indicate that Mr Shergold was seen on 37 occasions until 20 January 2003, just before he moved to Perth.
On 25 June 2001 he complained of a sore neck and back after flying for eight and a half hours. There was a diagnosis of soft tissue injury. On 31 July 2001 he complained of lower back pain spreading to the upper back over the past three days. On 10 October 2001 he reported ongoing episodes of neck and low back pain since the crash. Again, on 3 November 2001 he complained of low back pain for a period of four weeks. Low grade pain was also reported on 3 October 2002. On other occasions his complaints were mainly related to asthma and skin conditions. The notes make reference to his studies, but do not indicate any certification of unfitness for study or work.
Mr Shergold moved to Perth to live in 2003.
According to the Seville Drive Medical Centre and Warrina Medical Centre records (exhibit 86), Mr Shergold was seen on many occasions in the period 29 November 2005 to 24 August 2007, being the day prior to the crash in question. When cross-examined, Mr Shergold did not dispute the accuracy of any of the medical notes put to him.
On 2 May 2006 Dr Eva Dobromirska recorded that Mr Shergold complained of having been hit by a truck five years before. He had suffered lots of muscular spasms in the neck and chest since then. In cross-examination he agreed that he told Dr Dobromirska that he was still having those symptoms.
On 30 October 2006 there is a note 'came in complaining of stress, builder, own business, building a wall for a client who is abusive, cried on the job, emotional, can't sleep'. Xanax was prescribed. On 22 November 2006, Mr Shergold reported that when he did not take Xanax he 'couldn't function'.
On 30 November 2006 Dr Dobromirska noted that it was four weeks since Mr Shergold suffered a fracture of the distal phalanx of his left middle finger and ordered a left hand x-ray. The notes read 'had to stop work because of stress and will get subcontractor to finish'. Mr Shergold agreed that he told Dr Dobromirska that he had to stop work because of stress and get a subcontractor to finish the work. Mr Shergold admitted that he could not cope with his client and was suffering from stress and anxiety. He agreed that he developed anxiety in late 2006 and was prescribed medication.
On 13 December 2006 Dr Dobromirska's notes refer to the injury to the left hand. She also noted 'depression, anxiety gets worse yesterday had to live [sic] the site subcontractor doing his job counselling organised'.
It appears that Mr Shergold first consulted Dr Olufemi Taiwo of Warrina Medical Centre on 13 December 2006. His note of Mr Shergold being verbally abused by a client and suffering stress is consistent with Dr Dobromirska's note on 30 October 2006. The reason for the consultation was anxiety. Kalma was prescribed as well as Panadeine Forte. On 15 January 2007 Dr Taiwo noted the reason for the consultation as depression. His notes were 'ongoing depression, lack of motivation, panic, Kalma not helping fully, psychologist helping. Finances still a worry'.
On 20 January 2007 there was a prolonged consultation wherein it was noted that Mr Shergold was doing well on Aropax, but had run out of Kalma and felt jittery. He was working onsite hoping to finish a job within two weeks. Psychologist sessions were helping.
On 17 February 2007 the consultation was for asthma and depression. Mr Shergold had reduced Kalma to one per day. On 9 March 2007 Dr Taiwo's notes were 'finished pressing job, still pain at times but NAD, has cut down Kalma. Coping well, stable psychologically'. On 14 April 2007 Dr Taiwo noted 'still tenderness hand and op site, coping well re issues around anxiety and depression'. On 4 May 2007:
Tiredness, sleep apnoea hx no cpap as could not tolerate it. Affecting work can presently work three half days a week. Pain back.
The records include a copy of a Centrelink medical certificate dated 4 May 2007 certifying Mr Shergold unfit for two months by reason of depression and anxiety and recurring obstructive sleep apnoea. The certificate is signed by Dr Taiwo. The symptoms were tiredness and low mood.
On 18 May 2007 Mr Shergold had run out of Kalma, but was stable. A further prescription was given. Counselling was also prescribed. On 1 June 2007 Dr Taiwo noted:
Has stopped antidepressants by self, doing well, still on Kalma, lost repeat Seretide. Neck and shoulder pains, massage not helping.
Mr Shergold agreed in cross-examination that he reported to Dr Taiwo on 4 May 2007 that he was suffering back pain. Mr Shergold said that he had strained his back around that time. He did not dispute Dr Taiwo's record.
On 5 June 2007 Dr Justina Taiwo issued a medical certificate to the effect that Mr Shergold was not unable to keep up with his studies because he had been caring for his wife who was unwell and had suffered sleepless nights.
On 11 June 2007 Dr Taiwo noted that Mr Shergold had been very stressed, his wife having lost a pregnancy. Stress was noted again on 25 June 2007 and 6 July 2007. On the latter occasion anxiety levels were noted to be high. Kalma was increased to two doses a day. On 16 July 2007 Dr Taiwo noted that Mr Shergold had put his back out again. There was reference to the previous crash. He was prescribed Panadeine Forte.
In cross-examination Mr Shergold said that he saw Dr Taiwo on 13 December 2006 to get a second opinion. He did not dispute Dr Taiwo's records indicating ongoing depression. He agreed that he was taking Aropax and Kalma at that stage. He said that Dr Taiwo was trying to find an antidepressant that would work and not keep him awake all night. He agreed that he was certified unfit for work due to depression and anxiety from 4 May 2007 to 4 July 2007.
On 24 August 2007, one day prior to the crash, Mr Shergold saw Dr Taiwo who noted, relevantly, 'seen, back pain muscular/facet, massage helping a bit'. Brufen was prescribed.
In cross-examination Mr Shergold agreed that he had been prescribed with antidepressant medication in September 2000 and that he had reported suffering depression two years before that. He said that the earlier occasion was when his father and sister‑in‑law died within six weeks of each other. He agreed that his history of depression commenced at that time.
When it was put to Mr Shergold that his actual history of mental illness was nothing like what he had told Dr Stephen Proud (report, exhibit 113), he answered:
Well, if that's what the documents says [sic]. We have to go by the documents, don't we?
Mr Shergold said that what he told Dr Proud was to the best of his knowledge at that time. He also agreed that his history was nothing like what he told Mr Hardcastle in May 2015.
Mr Shergold's evidence
Work history pre-crash
Mr Shergold said that he was educated in England. He left school at the equivalent of Year 10 or 11. He always struggled with reading and writing. When he finished school he became a stonemason. He completed an apprenticeship doing mainly monumental and restoration work.
He came to Australia in 1991 due to a downturn in the United Kingdom. In Sydney he obtained work on the Harbour Tunnel and Hyde Park restoration before taking four months off following a work accident. He then worked for a stonemason in Taree doing headstones and some building work.
He then obtained work for six months at Club Med on the Barrier Reef doing maintenance, including re-building retaining walls. He then went to Brisbane and obtained a couple of casual jobs before securing a permanent casual job with a local stonemason working a minimum of three days a week. In 1997, after working in that position for one and a half to two years, he decided to go to Bible college. He did this part-time until 1999 when he commenced his Asian studies degree.
He met and married Merry Shergold in 1999 while he was studying in Brisbane.
Mr Shergold gave evidence that he completed a Bachelor of Arts in Asian studies between 1999 and 2003. He completed two thirds of the course at the University of Queensland and then moved to Perth to complete the degree at Murdoch University and the University of Western Australia. In that period, he did 'the occasional little bit of part-time work'. He said he always earned the maximum amount that he was permitted whilst receiving Austudy benefits, about $6,000.
He and his wife purchased a lot at Mount Nasura in 2003 and were building a granny flat on the property when the crash occurred. They had spent about $75,000 on construction, Mr Shergold doing a lot of the work himself. He produced photographs of the improvements (exhibit 82).
Mr Shergold said he intended to use his degree to become a missionary, but he discovered that his asthma would limit him to short‑term missions. In terms of employment, his writing ability was 'a major obstacle'.
He then decided to go back to his trade. He started promoting himself as a stonemason, but also worked as a courier. He said he worked in Western Australia part-time as a courier while he completed his study, then full-time. He worked as a courier for about 18 months until mid‑2005. His wife assisted him with the paperwork. At the same time he was doing occasional stonemasonry.
From when he ceased work as a courier in 2005, he did not do any study until he enrolled in one or two professional development units in early 2007. In that time he worked as a self-employed stonemason.
He did a job using lightweight blocks at High Wycombe and then did a long retaining wall and steps at Dwellingup. He did a number of small retaining walls and feature walls. He said he did a big staircase at Perth Christian Life Centre between carpark levels (photographs, exhibit 84). He did a job at 65 Vincent Street, Nedlands (photographs, exhibit 84) involving a limestone fence, some retaining walls and paving. He was doing a large retaining wall around a property at Karnup when he had an altercation with the client which caused him to see his doctor who prescribed medication for anxiety in October or November 2006.
He eventually finished the job in February/March 2007. He also recalled doing a job for his previous accountant (Mr Lowe) building a boundary wall and doing some paving and a couple of general maintenance jobs for him in early 2007.
He said that work then dried up, although he picked up a couple of jobs four to five weeks before the crash. He said 'it was starting to pick up again and then the accident happened'. He had in fact gone to the place where the crash occurred in order to provide a quote for a small job that involved a retaining wall for a carport.
He said that he would always employ someone to help with stonework. It was not work that could safely be done alone. Mr Shergold said he never employed two people because 'most clients were looking for me to be involved in the putting in of the stone … not for me to supervise a couple of labourers to be doing it'.
Mr Shergold's certificates and academic records were received as exhibit 78. He also tendered his curriculum vitae (exhibit 79). Mr Shergold's academic achievements include an Advanced Diploma of Social Science (Religion and Theology) from Jubilee International Christian College in 1999, and a BA in Asian studies from University of Queensland awarded in July 2004.
Post-crash history
Mr Shergold gave evidence that following the crash he had a bad headache, as well as a sore neck, torso and knee. At the Armadale‑Kelmscott Hospital he was given a collar and analgesics. The following day he continued to suffer a headache and took more medication. On the Monday morning, still suffering a headache, he went to see his general practitioner. He also had a sore neck, head, body and knee.
Prior to the crash in Mr Shergold had advertised in the Yellow Pages. He said he received lots of calls, but was unable to provide quotes after the crash because of Dr Taiwo's advice that he could not lift more than 15 kg.
By 27 September 2007 he found himself unable to cope with a course he was studying at the time. His statement of academic record from Murdoch University indicates that in the first semester of 2007 he completed two units towards a Bachelor of International Business, passing 'Principles of Commercial Law' and failing 'Indonesian 1A'.
In late 2007, he started noticing that he was misplacing things and forgetting bill payments. On 11 January 2008 he missed a doctor's appointment. He said his memory was affected. During this time he said that he had suffered a considerable loss of earnings.
He obtained work as a console operator at a service station in January 2008. He said (ts 591):
It required me to stand up all day. The boss wouldn't allow us to have a stool and this required me to have my neck leaning forward to look at the console which aggravated my neck and the standing aggravated my back. When I first started, I had a pretty cool manager. She was prepared to give me space and didn't mind the odd little mistake. She left and I got a manager who just wasn't prepared to give me that space, you know – because obviously because of me anxiety, things could get a little bit, you know – and it got to the point where I went to have a chat with me doctor and he suggested leaving the position.
He then obtained a forklift ticket. (He had driven a forklift for years without a licence in Queensland). He obtained work at a sand manufacturing plant in June 2008. He said the dust aggravated his asthma and made him quite sick.
He then registered with a number of agencies. Through one he obtained work at Canning Vale Food Market. He said (ts 592):
I worked there for quite a while until the boss found that I was wearing a back support belt, you know, and he used to get a little bit annoyed because I would forget which bay I was meant to put stuff in and if I had written on stuff, he couldn't really understand it because my writing has deteriorated really bad, you know.
He worked at Canning Vale until December 2008 when he was informed by the agency that he was no longer required. He did not obtain any further work as a forklift driver. He did not know the reason for his work ceasing, but thought it was due to the boss seeing that he had a back support. He said the work was exhausting and when he came home, his back would 'be killing me'. When he ceased work as a forklift driver he went onto Centrelink benefits. He described the benefit as 'incapacitated Newstart'. At one point he attempted to do taxi driver training, but failed the psychological assessment.
He has not done any gainful work since.
His academic record shows that in semester two of 2008 he completed two units, obtaining a pass in 'Principles of Management' and a credit pass in 'Workplace Law'.
He applied for a position as a lecturer in stonemasonry at a college of TAFE. He thought he would have obtained the position were it not for his back problem which he thought was a safety issue.
On 2 February 2009 he started a Graduate Certificate of Business Management course at Edith Cowan University (ECU) with a view to re‑training in business. He enrolled in three units. During the first semester he dropped one unit because he was not coping with the workload.
The following year he started a course in planning at Curtin University because it was difficult to travel from Armadale to the ECU campus at Joondalup. He was given one unit credit in the Curtin course. He said he was 100% dependent upon student services and support, including a professional note‑taker during lectures and assignment checking services. He had a disability officer who wrote up a programme for each unit so that he would be exempt from exams because of his memory problems.
By the end of the first semester of 2010 he decided that the business management course was going to be too hard so he changed to a Graduate Certificate in Development Planning as a means of becoming an architect. He continued to do two units per semester.
Mr Shergold said his attempts to retrain were unsuccessful. In November 2011, he was granted a disability pension by Centrelink.
Mr Shergold said that he was awaiting dental implants to replace teeth that he had lost as a consequence of taking medication since the crash. He adduced no evidence of the effects of medication on his teeth and the relationship, if any, between his dental problems and the crash. He conceded that he had not pleaded a need for dental work as a consequence of any crash‑caused injury. The evidence shows a long history of pharmaceutical treatment of various complaints and disorders prior to and since the crash. Absent any supportive expert evidence, the claim is speculative.
He also said that he was awaiting a neuropsychiatric evaluation.
He had to be reminded to keep appointments. He said he struggled with the fact that he was unlikely ever to work again because of his physical limitations. He said that as a result of his poor reading and writing skills he would be hard-pressed to find non-manual work.
Mr Shergold said that he had extreme difficulty in remembering anything in the short-term and acquiring new information. His long-term memory was good. He had not undergone any neuropsychological testing.
He said that he had had headaches since the crash to varying degrees. They had improved since his doctor prescribed Lyrica, but this drug had the side effect of stimulating appetite, leading to obesity. His headaches were worse if his neck was tense.
Mr Shergold gave some evidence about making two unsuccessful applications to the Insurance Commission of Western Australia (Insurance Commission), the defendant's insurer, for advances against loss of earnings in 2008 and 2011. Mr Shergold maintained, as Ms Shergold did in her case, that he had been unfairly treated by the Insurance Commission, believing that it was obliged to make such advances. He also attributed the long history of the litigation to the conduct of the defendant's insurer. (Prior to trial Mr Shergold made an unsuccessful application to join the Insurance Commission as a party, claiming, as I understood his application, that the Insurance Commission itself had caused him loss by some breach of duty it was said to have owed him as a claimant.)
Mr Shergold also gave the following evidence:
As a result of the injuries I sustained, and the prolonged stress of trying to find a resolution to my compensation case, bankruptcy proceedings I had to endure again, the loss of my property, my potential dream home, the marriage breakdown, and the associated heartbreak of having to fight for custody of my child, I find self-harm has become a way that I can deal with the pain.
In subsequent evidence Mr Shergold made it clear that as far as he was concerned he had been victimised in the compensation process.
Mr Shergold gave evidence at length as to events that would cause him stress. When he worked as a service station console operator he found that he became stressed if he had what he described as an aggressive customer. On one occasion he incurred disfavour from his employer when he pressed an emergency button during an incident with a customer relating to the use of a credit card. He said (ts 600):
You know, I didn't realise at that time that it was a mental health issue relating to symptoms of post-traumatic stress, but, you know it raises its head on a regular basis. Like, for example, if I'm on a bus and you happen to be a passenger with a driver that's a little bit enthusiastic, that can make me feel a little bit nervous. After the executions in Bali, I was really feeling under a lot of psychological stress, you know, and my doctor - it's just that I've been through too many traumatic events.
He said that he was obsessed by some things such as study. He also caused his taxation returns to be amended because he discovered 'some little errors'. In other respects he was forgetful. He would lose prescriptions and forget to tag on when using public transport. He desired gainful employment in order to provide for his daughter, but said he had difficulty being motivated enough to get out of bed.
He described his house in Geelong as disorganised, untidy and not cleaned regularly. He found it hard to plan and execute projects and activities and had difficulty communicating with other people. He said he found it difficult to comprehend Centrelink correspondence and to manage his financial affairs. He had difficulty comprehending agreements and making comparisons between products. He said he also had difficulty at times planning a healthy diet. An example of this was buying pies and chips despite having a weight problem. He said 'I should probably plan out a menu for the week and have a plan to buy the ingredients'. He said he often had a sore back aggravated by doing chores 'which did not get done'. He had help with lawn mowing, but said his garden was poorly maintained. The person who assisted him with lawn mowing would also take him to social events and to church.
Business and financial activities
In relation to his claim for economic loss, Mr Shergold said that he and Ms Shergold operated the business of Aalatio Enterprises (Asia Pacific) which was registered on 1 July 2002 (presumably as a business name). The business was stonemasonry and grave maintenance, as well as Indonesian language tutoring. When they moved to Western Australia he used the business name as a vehicle for his remuneration as a subcontract courier.
Mr Shergold gave little oral evidence to support the quantum of his claim for economic loss, but did tender his original and amended partnership, family trust and individual tax returns for 2003 – 2011 (exhibit 68), an analysis of them (exhibit 67), a spreadsheet analysis of his pre and post‑crash business income 2004 – 2011 (exhibit 76), two bundles of invoices (exhibits 80.1, 80.2), and a bundle of documents headed 'Sales by item detail' for Aalatio Enterprises and the Shergold Family Trust (exhibit 81.1 – 81.8).
The annual financial statements and tax returns are inconsistent and, indeed, contradictory, and do not correlate with the invoices. Indeed, it is impossible to discern from the documentary evidence tendered by Mr Shergold a reliable picture of Mr Shergold's business affairs. No explanation has been provided for the inconsistencies between the annual accounts and returns prepared by Mr Freddie Lowe, the Shergold's original accountant in Western Australia, and those prepared by Mr Stephen Harrison, who was engaged as their accountant in 2010. Mr Shergold said that when he was going through his books he discovered 'quite a few double entries that had happened of expenses and in some cases receipts'. It was for that reason he had his annual financial statements and tax returns re-done by Mr Harrison.
The partnership return for Aalatio Enterprises (Asia Pacific) prepared by Mr Lowe for the financial year ended 30 June 2003 shows gross income of $5,797 and a net loss of $14, 010.
In 2004 the gross income was $31,895 and there was a net loss of $1,176.
In the year ended 30 June 2005 gross income was $55,261 with a profit of $16,498. The amended tax return for 2005 prepared by Mr Harrison shows, on the other hand, a gross income of $31,822 and a net loss of $13,788.
For the financial year ended 30 June 2006 the partnership return by Mr Lowe shows a gross income of $92,689 and a net loss of $13,940. Mr Harrison's amended return shows a gross income of $76,679 and a loss of $41,498.
In the financial year ended 30 June 2007 the business of the partnership was transferred to Karunia Pty Ltd as trustee for the Shergold Family Trust. This occurred on 31 December 2006.
A partnership return for that financial year prepared by Mr Harrison shows a gross income of $62,744 and a net loss of $20,898. Yet the profit and loss account for that financial year, also prepared by Mr Harrison, indicates a gross income of $71,847 and a net profit before tax of $52,817.
For the same financial period the tax return for the Shergold Family Trust indicates a gross income of $97,237 and a net profit of $28,732 (excluding interest). However, there is another tax return for the Shergold Family Trust for the same period which shows a gross income of $51,045 and a net loss of $43,339 (excluding interest). No profit and loss account for the trust was tendered.
These anomalies were not explained by the evidence of Mr Shergold or his accountants.
For the financial year ended 30 June 2008 the tax return for the Shergold Family Trust shows income of $29,912 and a loss of $122,006, including a write-off of bad debts of $67,929. For the same period there is a second trust tax return which shows a gross income of $35,000 and a net loss of $37,394.
These observations illustrate the uselessness of the financial documentation tendered by Mr Shergold as a basis for any findings with respect to his earning capacity. His individual tax returns are likewise meaningless. No bank statements were tendered which would have evidenced actual receipts from time to time.
The only reliable information in the tax returns is that in the year ended 30 June 2008 Mr Shergold earned $8,592 gross from Carbon Enterprises Pty Ltd and $1,826 gross from Chandler McLeod and received $6,010 in Newstart allowance. In the following year he earned $814 gross from Chandler McLeod and $9,092 gross from Bayside Western Australia Pty Ltd and received $7,090 in Newstart allowance. In the year ended 30 June 2010 he received $11,116 in government allowances and a superannuation payment of $1,723.
The invoices produced by Mr Shergold are also difficult to comprehend as a number of them appear to be for services and materials for which no payment was ever received and many are for items that do not reflect actual business revenue.
An analysis of the invoices shows that in the year ended 30 June 2004 there were four invoices issued for actual services and materials (10, 20, 23 and 38), totalling $5,393.88 (exclusive of GST).
In the financial year ended 30 June 2005 there were nine invoices issued for services and materials (66, 72, 76, 79, 83, 85, 86, 87 and 88), totalling $10,922.27 (exclusive of GST).
In the financial year ended 30 June 2006 there were 32 invoices for services and materials (89, 90 – 99, 102 – 108, 110, 112 – 121, 123, 126, 128, 129 and 131), totalling $83,286.80 (exclusive of GST).
In the financial year ended 30 June 2007 there were 19 such invoices rendered by either the partnership or the family trust (132 – 142, 144 ‑ 148, 12, 21 – 23), totalling $60,182.93 (exclusive of GST).
In the financial year ended 30 June 2008, to the date of the crash, there were seven invoices for services (25, 24, 36, 38 – 41) totalling $21,177.17 (exclusive of GST). The remaining invoices for services in that period date from 14 May 2008. They are for supervision and consultancy services (64 – 66, 69 and 73). They total $2,698.37 (exclusive of GST).
Invoices that I do not regard as being for services are as follows. In the financial year ended 30 June 2007 invoices 2 – 5 are described as 'cost of invoice'. They are not otherwise explained. They total $17,056.07 (exclusive of GST). In the same period there are four invoices for 'reimbursable expenses' (26 ‑ 29), totalling $17,305.80 (exclusive of GST). In the financial year ended 30 June 2006, there is an invoice (109) for 'administration fee – client cancels contract' ($48 exclusive of GST). In the financial year ended 30 June 2007 there are three invoices for 'finance charges on overdue balance, admin charges' ($2,451.61 exclusive of GST).
In the same financial period the Shergold Family Trust issued invoice 22 for 'interest on overdue account, administration fee' ($474.06 exclusive of GST).
I note also that on 30 June 2008 the trust invoiced Ridolfo Forestry Products $1,221.64 (exclusive of GST) for 'interest on overdue accounts, administration fee, debt collector fees, legal fees and commissions payable'. On the same date invoices with the same description were issued to Karina Waters ($11,357.83 exclusive of GST) and P & R O'Halloran ($8,988.77). A further invoice was issued to P & R O'Halloran on 30 June 2010 for interest in the amount of $6,472.71. It can be seen from these invoices that the jobs to which they refer were amongst the largest contracts undertaken in the year prior to the crash. I infer from the invoices that all or some of the amounts charged were not paid. This is another reason for not accepting the invoices as evidence of actual earning capacity.
The invoices in exhibit 80 also include, in the year ended 30 June 2006, five invoices for grants from the Department of Workplace Relations, JobFind Armadale and CentreCare, totalling $9,272.73 (exclusive of GST) (101, 111, 122 and 125). No evidence was given of the nature of this income. They may well relate to employment subsidies. In any event, they do not represent the value of services rendered.
Other invoices that I find do not describe services rendered include three invoices by the partnership to AM & MS Shergold all dated 31 December 2006 for 'construction of office, tools, cable, full sand, Mount Nasura, reimbursable expenses' ($68,613.06 exclusive of GST), 'sale of outstanding invoice in the doufill [sic] debt account' ($47,112.25 exclusive of GST) and 'worksite equipment' ($15,828.91 exclusive of GST) respectively.
In the financial year ended 30 June 2006 the family trust invoiced AM & MS Shergold $7,462.74 (exclusive of GST) for 'personal/private usage, personal items, private rental, house rental, kaka loan repayment, reimbursable expenses, mark-up'.
In the financial year ended 30 June 2007 there are 10 invoices to AM & MS Shergold, six of them for 'loan repayment apportioned to private use', each for $745 (1, 11, 14, 18, 20 and 22), an invoice for $33,885.87 (exclusive of GST) for 'losses incurred on a project' (121), an invoice for $799.10 for 'private phone use' (25), an invoice for $1,581.25 for 'private use, reimbursable expense, mark-up' (31) and an invoice for $18,112.01 (exclusive of GST) for 'provision of work at 7 Binburra Way, Mount Nasura, reimbursable expenses' (32).
Mr Shergold's evidence, as I have noted, was to the effect that following the crash he was unable to do any work in his business as a stonemason, but worked for short periods as a forklift operator and as a service station console attendant. In his business he always required the assistance of a labourer to do stone work, but never employed a second because, as he put it, clients expected him to do the work rather than supervise. This answer lacked cogency and was not consistent with other evidence, including photographs, indicating that Mr Shergold did, in fact, use subcontract labour, at least occasionally.
Giving evidence about the Mount Nasura property, Mr Shergold said that he and Ms Shergold bought the property for $45,000. It was sold for $150,000. At that time the mortgage debt was $174,000. Mr Shergold said the original mortgage was for $32,000. In 2004 or 2005 he and his wife borrowed a further $140,000. He said $10,000 was spent purchasing a van for the business and about $75,000 on the property itself. The increased mortgage debt was based on a valuation of $220,000. Mr Shergold said that he petitioned his own bankruptcy in February 2013 because he owed the bank about $100,000. In cross-examination Mr Shergold admitted that the property was bought in his wife's name.
Mr Shergold tendered his June 2013 home loan account statement (exhibit 70), the vendor's settlement for the sale of the property in May 2013 (exhibit 69), his bankruptcy documents (exhibit 71) and the architectural drawings for the development of the property (exhibit 72). Mr Shergold maintained that if his request for an advance against loss of earning capacity in July 2011 had been accepted (exhibit 75), he would have been able to service the property loan.
According to three letters to Mr Shergold from the Official Receiver, Insolvency and Trustee Service Australia dated 30 May 2012 (exhibit 71), Mr Shergold was previously bankrupted on 6 November 1995, 25 September 1997 and 11 June 1999. Although he admitted these events, the third date is, somewhat inexplicably, within the period of the preceding bankruptcy as he was not discharged from his second bankruptcy until 26 September 2000. This overlap was not explained. Mr Shergold said he had always found managing money 'a challenging area of my life'.
Mr Shergold also tendered a bundle of building trades' awards (exhibit 73) and the Building and Construction General Onsite Award 2010 (exhibit 74).
Cross-examination
I have dealt with Mr Shergold's evidence in cross-examination in relation to his pre-crash medical history.
Mr Shergold accepted that he had first been treated for depression in 1998, that he was further treated for depression and anxiety from November 2006 to the date of the crash and that June-July 2007 was a difficult time for him and his wife due to her miscarriage.
He agreed with the accuracy of the statement made by Dr Taiwo in a referral to Mr Ballantyne in November 2007 which indicated that he had issues in relation to 'long-term anxiety, business issues, situational crisis, recent MVA and also ongoing fertility, wife frequently miscarriages pregnancy'.
He agreed that he attended Mr Glenn Little, a psychologist, in 2013 for counselling in relation to his marriage breakdown. He agreed also that Mr Little's report of 15 April 2015 identified a number of stressors that included these court proceedings, Family Court issues, university assignments, accommodation, and the need to postpone a wedding to his new girlfriend.
He also agreed that he had consulted Dr Beavon in November 2013 for depression relating to family problems.
Mr Shergold maintained in cross-examination that he had suffered a brain injury, but he agreed that he had not undergone any neuropsychological testing. He had been referred to a neurologist, Dr Peter Batchelor, for dementia. MRI scanning was normal. He conceded that there was no medical evidence of traumatic brain injury.
He agreed that he had a long history of chronic asthma.
When asked about his knees, he said he claimed no injury to his knees as a result of the crash, notwithstanding the fact that knee injuries had been pleaded. He thought that his knee problems related to work as no doctor had attributed them to the crash. He agreed that the statement from which he had read in evidence-in-chief was wrong. He said 'It's due to the cognitive difficulties I have, remembering things'. He admitted that he had said in evidence-in-chief that he complained of knee pain at the Armadale-Kelmscott Hospital and to Dr Taiwo, but said that he could not say whether his knees hit the dashboard because he was 'so sketchy about the circumstances of the accident'. Mr Shergold agreed that there is no mention of a knee injury in the Warrina Medical Centre records until 8 September 2008 when he reported having caught his left knee on the back of a forklift.
When questioned about his ability to work after the crash, Mr Shergold admitted that he had done some supervisory work as a stonemason, but denied doing any physical work as such. He agreed that he had worked full days as a supervisor for 12 days in May-June 2008, but could not remember for whom. He quit when he was asked to do mixing. He said he told Dr Taiwo that his back flared up, although it was not recorded in the notes of the consultation (17 June 2008, exhibit 86). He accepted that his next job as a forklift operator came to an end because he was laid off, as he told Dr Taiwo on 2 July 2008.
Mr Shergold was cross-examined extensively in relation to his financial records. He confirmed that the business of Aalatio Enterprises (Asia Pacific), a partnership between him and his wife, was transferred to Karunia Holdings Pty Ltd as trustee for the Shergold Family Trust on 30 December 2006. He was questioned about issues that arose with respect to the work done for certain clients, some of whom subsequently gave evidence. He did not accept that any of his clients had reasonable cause to be dissatisfied.
He verified his income tax assessment notices (exhibit 92).
As to the invoices, he explained that the partnership invoiced itself $75,474.45 for the work done on the Mount Nasura property (invoice 202). Invoice 205 for $49,409.21 represented the transfer at face value of the 'doubtful' debts of the partnership to the Shergold Family Trust.
Asked why some invoices were marked as 'cash sales', Mr Shergold said that some clients did not want invoices and would pay cash, but he 'tried to do the right thing by putting them through the business'.
Mr Shergold was given every opportunity in cross-examination to demonstrate the actual income from stonemasonry services, or to do so in re‑examination. None of his evidence in relation to the invoices made any more sense than the documents themselves. Mr Shergold's evidence nevertheless made it clear that the manner of his bookkeeping for the financial year preceding the crash (2006 ‑ 2007) created a false impression of the profitability of his business.
Mr Shergold was shown surveillance video footage depicting his observed activities in March 2009 and July 2014. In my view none of the activities depicted in the video recordings were inconsistent with Mr Shergold's evidence.
Non-medical witnesses
John Stein
Mr Stein said that Mr Shergold did work for him at his property in Karnup from late 2006 into 2007. He recalled paying him approximately $40,000 to $50,000. The invoices (exhibit 80) relating to Mr Stein were addressed to Direct Tradies Supply. This first was for 'payment of materials in advance, supply of stone and other materials': $25,926.97 (excluding GST). The remaining invoices total $14,316.46 (excluding GST).
Mr Stein said that Mr Shergold had lied to him during the works and was unreliable. He said (ts 897):
Some of your work was of poor standard, which is still cracked and broken as of today. But it was more the lies. You're the most dishonest person I've ever met, to be honest, Andrew.
Anthony Ridolfo
Mr Ridolfo gave evidence that Mr Shergold did some work at his property in Dwellingup. His evidence was that the job took way too long and that he had to get another stonemason to complete it. He said he had 'immense difficulty reconciling some of the progress claims with the quotation'. After about nine months of work only about a third was completed. Mr Ridolfo found the experience very frustrating and said he probably would not recommend Mr Shergold. His work was inferior to that of the stonemason who finished the work.
Future medical expenses
I am not satisfied that Mr Shergold has any compensable need for medical treatment in the future. Over the past nine years his soft tissue injuries are likely to have resolved, or to have been overtaken by the effects of degeneration, such that any ongoing problems are due to non‑compensable conditions.
His medical history shows that for some time before the crash he attended for medical consultation frequently for a range of various conditions and was prescribed a variety of medications. He continues to attend his general practitioner frequently for unrelated medical conditions. I find that his requirements for treatment in the future have not been increased by the effects of the crash. As I have found, his psychiatric condition is not causally related to the crash.
Special damages
Mr Shergold has particularised a claim for $18,794 for past medications, plus interest of $7,972; $2,330 for past medical treatment, plus interest of $988; and an indemnity of $6,570 with respect to the recovery of medical benefits paid by the Health Insurance Commission pursuant to the Health and Other Services (Compensation) Act1995 (Cth). No proof of these expenses was provided at trial. There was no proof of expenditure, or any detail of the date of the services for which payment was made.
Obviously my findings would preclude the recovery of expenses relating to treatment for depression and anxiety and would permit merely an allowance towards the cost of treatment of Mr Shergold's multifactorial spinal symptoms. From my survey of the evidence of medical consultations there seems to be little in the way of medical consultations or treatment that has been injury specific.
I propose to grant liberty to apply generally with respect to the assessment of special damages on the basis that the parties are to confer with a view to agreeing what expenses should be allowed for special damages on the basis of the findings of fact in these reasons.
Conclusion
Mr Shergold is entitled to damages as follows:
Non-pecuniary loss: $30,250
Past loss of earning capacity: $15,000
Interest: $7,200
TOTAL:$52,450
There will be liberty to apply with respect to special damages in the event that agreement as to quantum cannot be reached, any such application to be made within 30 days.
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: SHERGOLD -v- EDWARDS [2016] WADC 150 (S)
CORAM: STAUDE DCJ
HEARD: ON THE PAPERS
DELIVERED : 12 OCTOBER 2016
SUPPLEMENTARY
DECISION :21 DECEMBER 2017
FILE NO/S: CIV 2290 of 2010
BETWEEN: MERRY SONDANG SHERGOLD
Plaintiff
AND
NORMA CAROLINE EDWARDS
Defendant
Catchwords:
Costs - Assessment of damages for personal injury - Order 24A offer to compromise - Judgment less favourable than offer
Legislation:
Rules of the Supreme Court 1971 O 24A
Result:
Defendant entitled to costs from date of offer of compromise
Representation:
Counsel:
Plaintiff: In person
Defendant: Mr C C Rimmer
Solicitors:
Plaintiff: Not applicable
Defendant: Spark Helmore Lawyers
Case(s) referred to in judgment(s):
Calderbank v Calderbank [1975] 3 All ER 333
Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115
Hillier v Sheather (1995) 36 NSWLR 414
Houatchanthara v Bednarczyk [1996] NSWCA 486
STAUDE DCJ: In reasons for decision which were delivered on 12 October 2016 I found that the plaintiff was entitled to damages for non-pecuniary loss in the sum of $20,100, plus special damages to be assessed in accordance with the findings of fact set out in my reasons. The following directions were made:
1.Within 14 days, the plaintiff do file and serve an affidavit annexing documentary proof of medical and pharmaceutical expenses related to the injuries determined by the court in its reason for decision.
2.Within seven days of service of the plaintiff's affidavit, the defendant do file and serve any submissions relating to the assessment of such damages.
3.The judgment hearing be adjourned sine die to be re-listed by the court upon the determination of special damages.
Subsequently, the plaintiff filed an affidavit with respect to special damages. On 14 December 2016 the solicitors for the defendant informed my associate that the parties were conferring on the issue. On 22 December 2016 my associate received a signed minute of consent orders in the following terms:
1.There be judgment for the plaintiff against the defendant in the sum of $34,250.85 inclusive of all special damages.
2.Payment of the judgment be stayed pending a ruling by Staude DCJ as to the appropriate costs orders to be made.
3.The parties have liberty to apply.
I indorsed the minute with my fiat.
As no application for costs was filed by either party, this matter was not brought to my attention again until the plaintiff sent a letter to the chief judge dated 8 November 2017 requesting a decision. The plaintiff's letter set out her written submissions in relation to costs that had been sent to the court under cover of an email from Mr Andrew Shergold on 17 March 2017. I have only been made aware of this document since receiving the plaintiff's recent letter. There was no accompanying motion for costs. No motion for costs had been filed by the defendant.
On 7 December 2017 my associate wrote to the solicitors for the defendant enclosing a copy of the plaintiff's letter dated 8 November 2017 and my associate’s response to it. The letter indicated that any motion for costs by the defendant should be lodged within seven days and accompanied by an outline of submissions.
By letter dated 13 December 2017 the defendant's solicitors indicated that the defendant sought orders as follows:
1.The defendant pay the plaintiff's costs up to 15 November 2012 to be taxed.
2.The plaintiff pay the defendant's costs from 15 November 2012 to be taxed.
In the interests of expedition, I will deal with that letter as an application, while observing that a motion for costs, if not made orally in court, should be lodged in proper form together with any supporting affidavit. In this case, the letter enclosed an affidavit by Mr Christopher Rimmer, the defendant's solicitor, sworn 13 December 2017 and an outline of submissions. The affidavit of Mr Rimmer states that on 25 July 2017 he sent an email to the plaintiff enclosing a minute of consent orders as follows:
1.The defendant file and serve any outline of submissions in relation to the appropriate costs orders to be made in this action by Friday, 4 August 2017.
2.The plaintiff file her outline of submissions as to the appropriate costs order to be made in this action by Friday, 25 August 2017.
3.The question of the appropriate costs orders to be made be listed for hearing before his Honour not before 1 September 2017.
Mr Rimmer further states that on 29 July 2017 he received an email from the plaintiff stating that she declined to sign the minute of consent orders, stating that she did not have the legal capacity to represent herself in the matter.
Mr Rimmer also deposes to the fact that the plaintiff's former solicitors, Ilberys Lawyers, were served with an O 24A offer to compromise under cover of a letter dated 15 November 2012. The offer of compromise is stated to be for $35,000 damages. The covering letter states that the offer included all special damages and would remain open for acceptance for 28 days. The affidavit also annexes a letter from Ilberys Lawyers dated 23 November 2012 acknowledging service of the offer of compromise.
The defendant submits that the award of $34,258.25 was no more favourable than the offer of compromise and that, accordingly, pursuant to O 24A r 10(5), the plaintiff is liable to pay the defendant's costs from the date of the offer.
As at the date of the offer of compromise O 24A r 10(5) provided:
Where an offer is made by a defendant and not accepted by the plaintiff, and the plaintiff obtains judgment on the claim to which the offer relates no more favourable to him and the terms of the offer, then, unless the court otherwise orders, the plaintiff shall be entitled to an order against the defendant for his costs in respect of the claim up to and including the day the offer was made, taxed on a party and party basis, and the defendant shall be entitled to an order against the plaintiff for his costs in respect of the claim thereafter, taxed on a party and party basis.
(Order 24A has since been amended to provide by r 10(7A) that if the court is satisfied that the failure by the plaintiff to accept the offer made by the defendant was unreasonable, the defendant's costs are taxed to be on an indemnity basis, unless the interests of justice require otherwise.)
An offer to compromise made pursuant to O 24A may be distinguished from a Calderbank offer (Calderbank v Calderbank [1975] 3 All ER 333 (EWCA). A Calderbank offer will not justify an award of indemnity costs unless its rejection was unreasonable and the party who makes the offer which is rejected bears the onus of satisfying the court it should make an order of indemnity costs in his or her favour: Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115 [17], [21].
Pursuant to O 24A r 10(5) where a plaintiff obtains a judgment which is no less favourable than the offer of compromise, it is only in an exceptional case that the costs consequences provided by that rule would not follow. As Clark JA observed in Houatchanthara v Bednarczyk [1996] NSWCA 486 (following Hillier v Sheather (1995) 36 NSWLR 414) in relation to an analogous rule:
It is clear that if the rule operates, the plaintiff will be significantly disadvantaged, but that disadvantage flows naturally from the risks of mitigation ... Where an offer is made by a defendant to a plaintiff, the latter is placed on notice that unless he or she accepts that offer, there is a significant risk that the order provided for by the rule may follow. In declining to accept the offer, the plaintiff takes the risk and the consequences that flow naturally from that risk.
In the same case (that involved a personal injury damages claim where the plaintiff had been offered $10,000 and had been awarded $9,224), Handley JA observed:
DCR Pt 19A r 9(6) establishes a prima facie rule which should be applied unless the unsuccessful party is able to point to special factors which justify a departure from that rule in the particular case. General factors which apply in most, if not all cases, such as hardship, and difficulty in predicting the result of the trial cannot support an exercise of the discretion in favour of the unsuccessful party.
The plaintiff's submissions argue that it was not unreasonable for the plaintiff to reject the defendant's offer. It is said that at the time she was not able to make a proper and informed evaluation of her case. The submissions state:
Considering the stage of the proceeding at which the offer was received, the time allowed to the offeree to consider the offer, the extent of the compromise offered, the offeree's prospects of success assessed at the date of offer, the clarity with which the terms of the offer were expressed, it was not unreasonable for the plaintiff to have rejected the offer.
It is further argued that the court should consider the manner of the conduct of the litigation by the defendant. It is argued that there was no basis upon which the defendant could allege that the plaintiff had any pre‑existing psychiatric condition. The thrust of the submission is that the defendant conducted the defence of the claim in an oppressive manner.
The plaintiff's seeks an order that the defendant pay the plaintiff's costs of the action on a party and party basis, alternatively that the parties bear their own costs of the action, and in the further alternative, that the defendant pay the plaintiff's costs to 12 November 2012, being the date of the O 24A offer to compromise, and that the parties bear their own costs thereafter.
In the defendant's submission, the offer ought to have been accepted by the plaintiff. It was expressed in clear terms. It was more favourable than the judgment recovered. The plaintiff was legally represented at the time of the offer so it may be inferred that she was apprised of the consequences of rejecting it and the offer was made two years and nine months prior to the trial.
I find that there are no circumstances to be found in this case that would make it exceptional. In the area of personal injuries compensation, O 24A operates to encourage the timely resolution of litigation with consequent costs savings to the parties. It is, in effect, a simple rule, readily understandable by all litigants, that if an offer of compromise is not bettered by judgment after trial then the offeree bears the offeror's costs from the date of the offer.
The plaintiff's claim for damages was extravagant, unreasonable and largely unsupported by evidence. As I observed in my reasons for decision, the plaintiff had been represented by four separate firms of solicitors in the course of litigation. Even though liability for her damages claim was admitted, she proceeded to trial unrepresented.
Having heard the trial, I am satisfied that the defendant joined issue with the plaintiff on reasonable grounds. I am also satisfied that the conduct of the defence did not contribute unduly to the length of the proceedings. Rather, the action was made difficult by the unreasonable resistance of the plaintiff to legal advice on the merits of claim that she is bound to have received from time to time whilst she was represented.
There being no exceptional circumstances that would departure from the general rule, the orders for costs in this action will be as follows:
1.The defendant pay the plaintiff's costs of the action to 12 November 2012, to be taxed.
2.The plaintiff pay the defendant's costs of the action from 12 November 2012, to be taxed.
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