| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : USEINOSKI -v- McCUTCHEON [2003] WADC 227 CORAM : O'SULLIVAN DCJ HEARD : 6-9 OCTOBER 2003 DELIVERED : 28 OCTOBER 2003 FILE NO/S : CIV 896 of 2002 BETWEEN : DELIL USEINOSKI Plaintiff
AND
MARGARET PATRICIA McCUTCHEON
Defendant
Catchwords: Damages - Assessment - Personal injuries - 40yearold man with very short history of employment - No economic loss proved - Total award of $6,125
Legislation: Motor Vehicle (Third Party Insurance) Act 1943, s 3C(2)
Result: Plaintiff awarded sum of $6,125
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Representation:
Counsel:
Plaintiff : Mr P L Haynes
Defendant : Mr J P Olivier
Solicitors:
Plaintiff : Paul O'Halloran & Associates
Defendant : Talbot & Olivier
Case(s) referred to in judgment(s):
Graham v Baker (1961) 106 CLR 340
Mann v Ellbourn (1974) 8 SASR 298
Case(s) also cited:
Nil
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1 O'SULLIVAN DCJ: The plaintiff claims damages for personal injuries said to have been suffered in a motor vehicle accident on 21 August 2000. Liability is not in dispute.
Background 2 The plaintiff is 40 years of age and was born in Macedonia. He came to Australia with his wife in 1985. They have four sons aged 17, 16, 11 and 8. Mrs Useinoski is and has always been deaf and she and the plaintiff gave evidence that it was necessary for the plaintiff to remain at home to assist her in looking after the children when they were very young. As a consequence the plaintiff did not work at all in Australia until 1994 when he obtained a job as a cleaner. He has no formal qualifications and he said that his previous employment experience in Macedonia was as an agricultural worker in the tobacco industry. 3 In 1992 the plaintiff was involved in a motor vehicle accident and suffered a neck injury. On 4 September 1997 he was involved in another accident and sustained further neck and shoulder injuries as a result of which he said that he was unable to work for some time. However, by about February 2000 he said that he was fit to resume employment and was looking for work when the accident the subject of this claim occurred.
The claim 4 On 21 August 2000 a car which the defendant was driving collided with the rear of the plaintiff's vehicle while it was stationary waiting to turn from Raymond Street, Yokine into Roscolla Street. 5 The plaintiff who gave evidence though an interpreter said that he experienced shock but felt no immediate pain and went home with his wife and two of his children who had also been in the car. A doctor was called to the house to check them out and he was sent for x-rays. 6 After a little while the plaintiff said that he commenced to suffer low back pain and a recurrence of pain in the neck and right shoulder. He was given analgesics but said that his symptoms did not diminish and that his low back pain in particular worsened and has not resolved. 7 He gave evidence that he had no lower back problems before the accident and that as a result of the pain which he now experiences he cannot engage in any strenuous activities. He used to play soccer with his children in the park but can no longer do so because it causes pain in his
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back, right shoulder and leg. He used to do the gardening including cutting lawns and did work around the house such as painting but says that he can no longer do these things either. In addition household chores such as vacuuming and cooking are all beyond him. 8 The plaintiff said that he now spends his time at home going for short walks occasionally but otherwise sitting down and doing very little. He said that he feels as if he can no longer work, even in a sedentary job, saying: "I got a lot of pain on my back, my leg, my shoulder and my arm and I can't bend, I can't move around much." 9 In the course of his evidence the plaintiff got up from his chair on a number of occasions demonstrating his discomfort on sitting for any length of time. 10 The plaintiff does not take any medication to deal with his pain saying that the defendant's insurer has stopped paying for it. He has tried physiotherapy but only for a few sessions and says that it did not help. He also finds it difficult to sleep and his sexual relationship with his wife is not what it used to be.
Pleadings 11 By the statement of claim it is pleaded that as a result of the motor vehicle accident the plaintiff sustained: "7.1 Soft tissue injury to the lumbar spine;
7.2 Soft tissue injury and/or aggravation of previous injury to the cervical spine and right shoulder."
12 It is then pleaded that the plaintiff has suffered from a number of symptoms and loss of enjoyment of life and particulars are set out. Paragraphs 10 and 12 of the statement of claim provide as follows:
"PARTICULARS OF RESIDUAL AND PERMANENT DISABILITY
10. As a consequence of the injuries suffered on the material date: 10.1 The Plaintiff continues to experience symptoms, physical limitations and loss of enjoyment of life
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12. As a consequence of the injury suffered by the Plaintiff on the material date the Plaintiff has suffered a reduced working capacity and a diminished scope of employment in that the Plaintiff since the material date and for the foreseeable future has and will be incapacitated to perform any heavy duties or duties involving repetitive physical activity and as a consequence has been and will in the future be restricted to performing light duty work only and will not be in a position to perform heavy work which the Plaintiff might otherwise have performed." 13 The defendant denies that the plaintiff has sustained any injury as a result of the motor vehicle accident and further and in the alternative pleads that any disabilities from which the plaintiff presently suffers were caused or contributed to by the earlier accidents in 1992 and 1997.
The plaintiff's employment history 14 The plaintiff said that by March 1994 his first son was 8 years of age and old enough to assist his mother in looking after the younger children. Accordingly, he went out to work. By this time the neck injury he had suffered in 1992 was not troubling him and he got a job as a cleaner with Golden West Commercial and Retail Cleaning. According to his tax returns for the relevant period he worked for that business from 25 April 1994 until 24 August 1994. 15 The plaintiff next worked for a company called Airlite Retail Pty Ltd from 1 February 1995 to 19 February 1995. 16 The plaintiff did not work again until 1997 when he obtained a job with Quirk Corporate Cleaning Pty Ltd where he was employed from
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14 February 1997 until 18 May of that year and then with Prestige - Western Australia from 3 June 1997 until at least 30 June 1997. 17 The plaintiff gave evidence that he continued to work for Prestige after 30 June 1997 until the second accident occurred on 4 September of that year but there are no taxation records in evidence to that effect. His tax return for the year ended 30 June 1998 in fact discloses that the plaintiff earned no income from employment in that year at all. 18 The plaintiff has not worked since ceasing employment with Prestige. 19 He says that he suffered shoulder and further neck injuries or an aggravation of his earlier neck injuries in the motor vehicle accident of 4 September 1997 and was unable to work at all until about February 2000 when he started to feel better and commenced looking for a job. He had not found one when the motor vehicle accident occurred on 21 August 2000.
Medical evidence 20 It appears from the evidence that the plaintiff's general medical practitioner was a Dr Boichev but unfortunately, for reasons unknown to me, he was not called as a witness and no reports from him are available. Thus there is no contemporary account of the plaintiff's condition from time to time and of his progress over the years and, in particular, of the extent to which the last accident affected him. 21 However Dr John Rosenthal who is a specialist in rehabilitation medicine saw Mr Useinoski on 11 December 1997 and again on 5 June 1998 and although he has not seen him since, and therefore cannot comment upon the effect upon the plaintiff of the accident the subject of this claim, he investigated the complaint of neck and shoulder pain following the plaintiff's accident of 4 September 1997. He stated in a report of 11 December 1997:
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find any convincing evidence of a significant rotator cuff injury. The ultrasound does show some changes in the supraspinatus tendon, but this is a common sign of natural degenerative change particularly in manual workers. 3. Whether or not he could presently cope with two hours per day of cleaning is problematical because his job is no longer available. I suspect that he probably could cope but one has to acknowledge that there is significant pathology in his cervical spine. What I cannot accurately establish is his pre-accident level of fitness. Obtaining a history was difficult and laborious. … 5. There is permanent disability in the cervical spine which predominantly relates to long standing degenerative change. 6. There has clearly been aggravation to a pre-existing condition which has been described above." 22 Dr Rosenthal wrote in a second report having seen the plaintiff again in June 1998: "On examining him today there are overt signs of abnormal illness behaviour with facial grimacing and knee flexion with light trapezial palpation. His voluntary range of cervical movement is inhibited by 50% in all planes, but passively I can demonstrate a full range. I could quite easily passively abduct his right arm to 180 degrees, though he would not do this voluntarily above shoulder level. There is no suggestion of any upper limb wasting or weakness. I will now address your specific questions in numerical sequence. 1. His injury has been a soft tissue strain superimposed on pre-existing advanced degenerative change at C5/6. I suspect that this was symptomatic well prior to his recent accident. 2. I consider Mr Useinoski is grossly exaggerating his symptom severity and disability. This type of behaviour
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23 Mr Greg Janes, orthopaedic surgeon, investigated the plaintiff's complaints of right shoulder pain following the accident in September 1997 and treated him. Mr Janes did not give evidence but he wrote four reports which were tendered. He wrote to Dr Boichev on 21 November 1997 stating that an ultrasound had confirmed the presence of a partial thickness tear of the rotator cuff. He stated: "It is a small lesion and there certainly is no full thickness damage and there is a degree of subdeltoid bursal thickening and impingement on active abduction." 24 Mr Janes treated the plaintiff with injections into the subacromial joint but reported on 18 December 1997 that the plaintiff had refused further injections because they made him nauseous and dizzy. He also reported that the plaintiff had declined surgery and therefore stated that he could do nothing further for him. He stated in a report dated 16 June 1998: "I do feel that this man's condition has stabilized sufficiently to warrant finalisation of the claim. I would estimate he has a permanent disability at or above the level of the right elbow of 10 per cent. I do not perceive any further treatment is likely particularly as he is demonstrating a reluctance to have any significant intervention of any type. I do not think his prognosis is particularly severe …" 25 The practitioners called by the plaintiff were Dr Warner, an occupational physician, who saw the plaintiff only once on 31 July 2003 and Mr Anderson, an orthopaedic surgeon and rehabilitation specialist
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who first saw him on 8 November 2000 and thereafter on 10 occasions until 12 March 2003. 26 When Dr Warner saw the plaintiff he had available to him an x-ray report dated 27 September 2000 and a CT scan report dated 27 March 2001. He noted that the x-ray report stated: "No demonstrable fracture line is seen. The disc heights, vertebral bodies and the facet joints are normal. No evidence of any spondylolisthesis or pars defect. Both S1 joints are normal." 27 The report on the CT scan stated: "CT LUMBOSACRAL SPINE Multiple axial images are performed from L3 to S1 and photographed on soft tissue and bone windows. There is a small disc prolapse of the L5/S1 level and this is seen just impinging the origin of the right S1 nerve root. No disc prolapse, nerve root compression or spinal canal stenosis is seen at the L3/L4 and L4/L5 levels. IMPRESSION: Small disc prolapse at the L5/S1 level and this is seen just gimping the origin of the right S1 nerve root. Clinical correlation in this case may be helpful." 28 Dr Warner performed a clinical examination of the plaintiff and diagnosed him as suffering from a disc prolapse at the L5/S1 level with pressure on the S1 nerve root. 29 He considered that he had suffered a disability in the lumbar and thoracic spines which he assessed at 20 per cent and was of the view that he was unfit for work even of the lightest kind. He was unable to say how long that condition would persist but recommended therapeutic massage and acupuncture in the hope that symptoms might improve. 30 Although Dr Warner wrote in his report that he understood that the plaintiff had suffered no serious accidents "until the one on the 21st August 2000, apart from accidents in 1992 and 1997" he stated in evidence that he was in fact told that the earlier accidents were not serious. He was asked and said:
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"Do we understand from your report that you are saying that the accidents in 1992 and 1997 were reported as serious also?---They were reported to me as not serious by the interpreter. So while 28 August 2000 was serious, the other two weren't?---That's as I understood sir, by the interpreter. The interpreter being the gentleman's son?---It was his son yes." 31 Dr Warner said that he was not in a position to comment on the effect of the plaintiff's neck and shoulder injuries sustained in the 1997 motor vehicle accident. He focused solely on the back injury suffered by the plaintiff in August 2000 and agreed that his view that the plaintiff's working life had been diminished as a result of it by approximately 10 years assumed that but for the accident in August 2000 he would have been fit for employment. 32 Mr Peter Anderson has been an orthopaedic surgeon for many years and now practises as a rehabilitation physician. 33 I have already noted that he first saw the plaintiff on 8 November 2000. After seeing him a further four times including on 29 May 2001 he wrote on 1 June of that year: "At this consultation on the 29th May 2001 the movement of the cervical spine was normal. In the right shoulder some discomfort and crepitus was noted at the extremes of the range with crepitus possibly associated with a snapping biceps tendon. The abnormality in the right shoulder attracts a 5 percent impairment rating. Lumbar Spine This man complains of pain and stiffness in the lumbar spine. Forward flexion was one quarter of the normal range and extension was one quarter of the normal range. Lateral flexion and rotation were one half the normal range. The movement in the spine appeared to be less restricted than at previous consultations. The straight leg raising was restricted in both lower limbs, on the right side at 50 degrees and on the left side at 70 degrees. The knee jerks and ankle jerks were present and equal. The
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muscle power in the lower limbs appeared to be normal and the sensory abnormality appeared to consist of loss of sensation on the outer border of the right foot as compared with the left. These observations have been identified at previous consultations. In my judgement this man appears to have sustained an injury to the lumbar spine where his impairment rating is at 20 percent on account of his lumbar disability assessed against the values prepared by the Commonwealth in Department of Veteran's Affairs and Social Security Documentation as National Standards. He has a minor impairment rating in his right shoulder as described. This man is unfit for work at the present time. Communication with him is difficult in terms of gaining a full understanding of his circumstances. At the present time I would regard him totally unemployable, a status which preceded his accident." 34 Although he wrote in the above report that the plaintiff had an impairment rating of 20 per cent, Mr Anderson gave evidence that on reflection he had come to the conclusion that this was an over estimate. He did not consider that the plaintiff's lumbar spine problem, standing alone, was serious and in his view the rating should be reduced to 10 per cent. 35 On 27 July 2001 Mr Anderson wrote after seeing the plaintiff on 24 July: "Cervical Spine The clinical assessment of the cervical spine reveals a range of movement at three quarters of the normal range. The right shoulder shows a loss of movement, particularly in relation to internal rotation at three quarters of the normal range. Other parameters are approaching the normal range. The neurological assessment of the upper limbs reveals an absent right triceps jerk in the right arm, the significance of which was not fully appreciated. The biceps jerks and supinator jerks are present and equal.
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Lumbar Spine In the lumbar spine the range of movement is at three quarters of the range with the straight leg raising restricted at 60 degrees on the right and 75 degrees on the left. This man has residuals as described. It is considered that the right shoulder disability preceded the accident. The cervical impairment attracts a 10 percent value and the lumbar impairment attracts a 10 percent value in terms of the current clinical position. I was advised that this man was in receipt of the Disability Support Pension prior to the accident. His condition has been aggravated moderately, superimposed on to a condition in his right shoulder. The circumstances of his cervical symptoms and upper limb symptoms are difficult to integrate at this stage." 36 Mr Anderson said that he found the plaintiff difficult to assess because of the subjectivity of his complaints. 37 He also stated that he was never confident about the extent of the plaintiff's cervical problems. He saw the plaintiff and his wife at the same time and there was no mention and no finding of any neck problem on the first consultation. The plaintiff's wife had a neck problem of her own and he was concerned that the plaintiff was using her symptoms for his own purposes. In short, it was Mr Anderson's view that the plaintiff might be exaggerating his neck complaint. 38 As far as the lumbar spine was concerned Mr Anderson was satisfied that the plaintiff had some pathology, but considered that he was "still able to get on with his life". He did not present as a person suffering significant pain because of a disc prolapse and he found no hard evidence of nerve impingement. 39 Mr Stewart Brash saw the plaintiff at the request of the defendant's insurers on 24 April 2001 and again on 15 July 2003. Before examining him on each occasion he asked the plaintiff to complete a diagram indicating the areas of the body where he felt pain. The diagram made out by the plaintiff on the first occasion indicated low back pain but no neck or shoulder pain.
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40 Mr Brash noted in his report of 24 April 2001:
"Examination showed that in the standing position with the knees straight the fingertips could only come as far as the knees and yet in the lying position with the knees straight the fingertips could come down as far as the ankles. This is a clear cut non-anatomical sign. Extension was markedly reduced while rotation and lateral bending of the lumbo-sacral spine was quite good. Examination of the cervical spine showed normal forward flexion. Extension was limited and as he extended the cervical spine the pain went down to the low back area. Rotation and lateral bending of the cervical spine was quite good. There was a good range of abduction in both shoulder. Straight leg raising in the seated position was to 90º and yet in the lying position it was to 20º on the right and to 60º on the left." 41 Mr Brash was unable to find any objective pathology relating to the accident of 21 August 2000. It was his view that there were non-organic or functional factors present in the total pain picture. As to the CT scan of the lumbosacral spine on 27 March 2001 purporting to show a small disc prolapse at L5/S1 he stated: "I would make the observation that there is no sciatica and there is no sign of nerve root tension or nerve root impairment. I would also make the observation that the CT scan often shows age related degenerative changes and I believe that is what we are seeing here. I do not believe this CT scan is showing the cause for pain." 42 Mr Brash made the point in evidence that a radiology report is based upon the impression given by the films being examined. It is not a diagnosis. It is necessary to distinguish between a normal anatomical bulge and a true disc protrusion and it is always necessary to reconcile clinical signs with the radiology. It was his view that there was no true prolapse in the plaintiff's case and the lack of any clinical correlation supported that opinion.
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43 The final medical practitioner who gave evidence was Dr David Rosen, a neurologist, who saw the plaintiff on 14 July 2003. He stated in a report dated 29 July:
"Mr Useinoski has chronic mechanical low back pain and right leg pain following an accident in August 2000. There is an L5/S1 disc protrusion which probably abuts the exiting right S1 root. Some of the referred pain into the S1 territory may be radicular in origin due to this disc. Superimposed on this pathology he exhibits significant pain behaviour and exaggeration symptomatology and has poor command of English, this compounds the difficulty in assessment of symptoms and the nature of the disability. As far as I can tell from the medical reports he is not receiving specific therapy for the symptoms. He also has a minor exacerbation of previous neck and right shoulder injuries." 44 Dr Rosen made the point that symptoms are not a good guide to the severity of an injury. A disc protrusion which is large is not necessarily productive of more pain than one which is small. In this case the disc protrusion was small. 45 Given the radiological evidence and the results of his examination Dr Rosen did not doubt that the plaintiff suffered from low back pain but the extent of it was another matter. The plaintiff's demonstrative pain behaviour and the inconsistencies which he found on examination made it very difficult to judge the severity of his condition. 46 Dr Rosen wrote in answer to specific questions as follows:
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(b) Your views on the severity of the plaintiff's injuries allegedly sustained by him in that accident The severity of the injury based on the radiology and the clinical examination is mild. (c) Whether the plaintiff has any incapacity as a consequence of the injuries allegedly sustained by him in that accident There are no physical incapacities as a consequence of the injuries allegedly sustained by him in that accident. On his own admission he has no physical disability although he is limited by pain in the lower back. This compromises certain activities, particularly after long periods in the same position. (d) Whether the plaintiff has sustained any impairment to his working capacity as a consequence of the injuries allegedly sustained by him in that accident As far as I understand from his history the plaintiff was not working prior to the accident and has not worked since receiving a Disability Pension in 1998. As far as I can judge the amount of work he was doing around the house was quite limited prior to the accident. (e) If the plaintiff has had, or does have, any incapacity for work as a consequence of the injuries allegedly sustained in that accident, the duration or likely duration of the same The plaintiff was incapacitated with regards to work prior to the accident. He is currently incapable of work. It is likely that his complaint of low back pain would interfere with his ability to undertake sustained manual work. (f) The relationship (if any) between the injuries allegedly sustained by the plaintiff in the accident on 21 August 2000 and the injuries allegedly sustained by him in his two earlier accidents There has been a minor exacerbation of the neck pain and right shoulder pain as a result of the accident on the
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21st August 2000. Low back pain is by far the most prominent symptom. (g) Any other comments which you feel might assist us in formulating a reasonable offer of settlement of the plaintiff's claim The L5/S1 disc protrusion may be symptomatic. He is complaining of leg pain in an appropriate distribution. Low back pain may be discogenic in origin. As yet, as far as I can tell, he has not been offered specific therapy for this. I would consider offering him nerve root sleeve or epidural injection therapy as a diagnostic and therapeutic manoeuvre. Electrophysiological studies may help provide objective evidence of involvement of the S1 root. There is no evidence of any disc protrusion or significant degenerative changes in the lumbar sacral spine elsewhere."
Credibility of the plaintiff 47 As in many cases of this kind the plaintiff's complaints are largely subjective but the absence of significant objective signs of injury are not necessarily determinative. Accordingly I accept the submission of counsel for the defendant that the credibility of the plaintiff is a central issue in the matter. 48 However, the case does not turn simply upon whether the plaintiff is to be accepted as a witness of truth or not. While most of the medical practitioners who gave evidence commented upon the tendency of the plaintiff to exaggerate his complaints a number of them also pointed out that this was not uncommon among people who shared his background and counsel for the plaintiff submitted that the plaintiff's tendency to elaborate was to be explained by cultural and other factors rather then by a deliberate intent to deceive. 49 Accordingly any assessment of the extent of the plaintiff's injuries is not a straightforward affair turning solely upon a judgment as to his credibility. If, as I am prepared to find, the plaintiff does have a tendency to exaggerate his complaints he may nevertheless be genuinely suffering from a condition for which he should be compensated.
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50 One aspect of the evidence upon which I should specifically comment concerns the videotape taken of the plaintiff's activities on a number of days in May 2003. The tape records a fridge being lifted by a number of people into the boot of the plaintiff's car on 20 May 2003. Counsel for the defendant was clearly suspicious that the plaintiff assisted in the lifting of the fridge although he has claimed that he is unable to lift such heavy weights but in the light of all the evidence he quite properly conceded that I would probably be unable to find that the tape contradicted the claim. It does seem to me that the tape does not depict the plaintiff engaged in any lifting of the fridge and I accept the evidence of the plaintiff's friend Mr Pasovski that the plaintiff did not lift it.
51 However, I do note that at least one of the medical practitioners found the videotape to be of some assistance. Dr Rosen noted that it depicts the plaintiff moving with greater ease than he demonstrated when he saw him and, for him, this confirmed his view that the plaintiff was exaggerating his complaints. Dr Rosen said: "He did everything apparently quite unrestricted and, as I said, it was reassuring that at least that element of my examination was correct, ie he was elaborating at the time." 52 I have already noted that a number of the medical practitioners found significant inconsistencies in the plaintiff's presentation. 53 In my view it is also clear that since coming to Australia the plaintiff has demonstrated no great desire to join the workforce. In the 18 years since he has been here he has only worked for something like eight months. I have already noted that he and his wife both gave evidence that while the children were young he could not work because of his wife's deafness. While it was entirely a matter for them to decide how to manage their home duties I was not impressed with this explanation. It does not explain why alternative arrangements could not have been made nor why the plaintiff could not have worked at all for the first nine years after he came to Australia and only eight months since 1994. 54 In my view the conclusion that the plaintiff has been reluctant to work in the past is compelling and this adds to the need for caution in approaching the task of assessing the quantum of his claim.
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Aggravation of shoulder/neck injuries
55 It was pleaded in the statement of claim filed in the action relating to the 1992 accident that: "4. … the Plaintiff sustained a soft tissue injury to the cervical spine which injury produced pain in the neck, limitation of neck movements particularly flexion and extension, stiffness of the neck, tenderness over the cervical spine particularly over the C3 - C5 levels, stiffness of the neck (sic), pain in the trapezius muscles, neck muscle spasm, headaches and discomfort together with sleep disturbance. … 9. As a result of the accident injuries (sic) the Plaintiff has sustained a partial disability of the cervical spine which disability produces intermittent pain in the neck, aching of the neck, stiffness of the neck and lower back, headaches and discomfort together with sleep disturbance which disability will continue in the future." 56 Particulars of the plaintiff's treatment which included physiotherapy, swimming and exercises and analgesia and anti-inflammatory medication are then set out. 57 In relation to the second accident it is pleaded that the plaintiff sustained injuries as follows: "(a) Whiplash injury to the cervical spine involving soft tissue damage to the muscles and ligaments attached thereto;
(b) Moderately severe left C5/6 bony foraminal stenosis and left postero-lateral end plate osteophytic ridging at the foraminal entrance; (c) Left C6 nerve root impingement; (d) Right shoulder thickening of the right supraspinatus tendon consistent with tendonopathy with a possibility of a small partial thickness articular surface cuff tear. (e) Mild subacromial bursal thickening;
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(f) Trauma, shock and anxiety." 58 Particulars of the plaintiff's permanent disabilities resulting from the second accident are set out in par 8 of the statement of claim and include the following: "… (b) neck ache and pain; (c) stiffness of the neck; (d) tenderness overlying the shoulder and neck; (e) mild subacromial crepitus; (f) left C6 nerve root impingement; …" 59 It was further pleaded that the plaintiff's scope of employment had been "curtailed". 60 It is apparent from the evidence that the plaintiff's claim arising out of the 1997 accident was settled for $25,000 plus costs. 61 I have already set out Dr Rosenthal's evidence in which he expressed concern that he could not accurately establish the plaintiff's condition prior to the 1997 accident. It was nevertheless his view that it caused some soft tissue injury to the cervical spine superimposed on advanced pre-existing C5/6 degenerative changes. I note that it was also his view that the shoulder pain of which the plaintiff complained after the second accident was referred pain from the degenerative C5/6 segment. He was not convinced that there was any significant rotator cuff injury at all. 62 It is clear that, in common with the other practitioners who saw the plaintiff, Dr Rosenthal considered it difficult to assess the extent of his injuries in circumstances where he was clearly demonstrating abnormal illness behaviour. He nevertheless felt that there was significant pathology in the cervical spine and I accept that evidence. 63 The question is whether there was any aggravation of the plaintiff's condition in his cervical spine or shoulder occasioned by the accident the subject of these proceedings.
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64 Dr Rosenthal did not address that question because he has not seen the plaintiff since the accident. Dr Warner did not address it either.
65 Mr Anderson expressed doubts that the plaintiff suffered any aggravation of the cervical spine at all and commented that he made no complaint about it when he first saw him. I have already set out Mr Anderson's concern that the plaintiff was reflecting the neck complaints of his wife. 66 Mr Brash also noted that there was no initial complaint of neck pain and, in addition, found inconsistencies upon examination. It was his view, expressed in his report of 15 July 2003 that: "While having many symptoms [the plaintiff] had no pathology." Specifically in relation to the cervical spine he commented: "I could see no anatomical reason as to why this patient had this decreased range of motion in the cervical spine and why he should have these exclamations of pain." 67 Mr Brash made a similar comment in relation to the plaintiff 's complaint of pain in the shoulders. 68 Only Dr Rosen, among the medical practitioners, seems to have been prepared to find that the plaintiff has suffered an aggravation of his neck or shoulder injuries as a result of the accident. He described it as a "minor exacerbation of the neck pain and right shoulder pain." 69 Dr Rosen's opinion is of course dependent upon what the plaintiff himself told him. 70 In my view in the light of all the evidence I am unable to find that any significant exacerbation of pre-existing neck and shoulder injuries occurred as a result of the accident the subject of this claim. In my opinion the evidence of Mr Anderson and Mr Brash, which I accept, that the plaintiff made no initial complaint of any neck or shoulder pain is important and the opinion of Dr Rosenthal that he already had advanced degenerative changes in the neck which were probably symptomatic long before September 1997 makes it likely that while the plaintiff might have felt some further pain and discomfort after the accident it was minor and transitory.
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Low back injury
71 Counsel for the defendant pointed out that there is a complaint of low back stiffness in the statement of claim filed in relation to the 1992 accident. 72 However no complaint of pain is made and the statement of claim in relation to the 1997 accident contains no reference to any complaint concerning the lower back, notwithstanding inconsistencies. 73 In all the circumstances I am prepared to accept the evidence of the plaintiff that he was untroubled by his lower back before the accident the subject of this action. 74 Mr Brash is of the view that the plaintiff has no pathology at all to explain lower back pain and points to inconsistencies upon examination as evidence of his conclusion. However, that opinion is not shared by the other doctors who were all prepared to find that in the light of the CT scans and the plaintiff's complaints and their examinations the plaintiff had suffered some injury to his lower back, notwithstanding inconsistencies in his presentation. 75 The question which preoccupied each of the medical practitioners other than Mr Brash concerned the extent of the plaintiff's back disability and the degree to which it was symptomatic. 76 I have already noted Dr Rosen's view that the injury is mild and not productive of any physical incapacity, although the plaintiff is limited by the pain of which he complains. Mr Anderson is also of the view that the plaintiff has some pathology but "should be able to get on with his life". Dr Warner did not regard the injury as "serious". 77 In all the circumstances in the light of all of the evidence I find that the plaintiff has suffered a mild injury to the lower back which is productive of some pain. However I do not consider that it is significantly disabling and I am unable to conclude that the plaintiff's ability to enjoy life has been greatly diminished by it.
Past and future economic loss 78 I accept the evidence of Mr Anderson and Dr Rosen that the plaintiff's capacity to carry out heavy physical work has been diminished as a result of the injury to his lower back.
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79 While it seems to me that both practitioners were at pains to stress that the plaintiff has suffered no great inconvenience it was accepted that he could not now undertake sustained manual work.
80 However any assessment of this aspect of the claim must of course take into account the extent to which the injury has been or will be productive of economic loss. (Graham v Baker (1961) 106 CLR 340; Mann v Ellbourn (1974) 8 SASR 298.) 81 It seems to me that there is no persuasive evidence that the plaintiff made any serious effort to obtain work after his accident in 1997. If, as he says, he did seek employment I would have thought details of the jobs advertised and applied for could have been led. In all the circumstances I am not prepared to accept that any employment was sought. 82 Nor, in the light of all the evidence am I persuaded that but for the accident the subject of this claim the plaintiff would have obtained work before now or at some time in the future. The whole of his work history is against such a conclusion and it seems to me to be speculative to suggest otherwise. He is a man in his 40's who has worked for only eight months in the 18 years he has been in Australia. He has no particular employment skills and is hampered in his ability to speak English. His total earnings from employment in Australia have only been in the order of just over $5,000. In addition, he had a history of ongoing problems with his neck and shoulder and although he says they were no longer troubling him there were significant degenerative changes in the cervical spine which Dr Rosenthal considered were probably symptomatic before the 1997 accident. 83 In my view the chance of the plaintiff rejoining the workforce after 1997 were remote. 84 In all the circumstances I am not persuaded that any injury suffered by the plaintiff in the accident on 21 August 2000 has been productive of economic loss.
Assessment: Non-pecuniary loss 85 The task which I have is to assess the amount of damages to be awarded to the plaintiff for non-pecuniary loss as a proportion, determined according to the severity of the loss, of the maximum amount that may be awarded (Motor Vehicle (Third Party Insurance) Act 1943 as amended s 3C(2)). I am to bear in mind that the maximum amount may only be
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awarded in a most extreme case (s 3C(3)) and I am also obliged to take into account the provisions of s 3C(4), s 3C(5) and s 3C(6) of the Act which act as a statutory prohibition against awarding damages at all in certain cases. 86 In my opinion the plaintiff's claim for non-pecuniary loss should be assessed at 7.5 per cent of a most extreme case and in the circumstances I assess damages at $18,675. In the result, after the threshold deduction the plaintiff is entitled to the sum of $6,125.
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