Vince Scuderi v Nadarajah Raskurasinghamand and Insurance Australia Limited t/as NRMA Insurance

[2015] ACTMC 5

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Vince Scuderi v Nadarajah Raskurasinghamand and Insurance Australia Limited t/as NRMA Insurance
Citation:	[2015] ACTMC 5
DecisionDate:	30 October 2015
Before:	Magistrate Dingwall
File Number(s):	CS 122 of 2012

IN THE MAGISTRATES COURT	)
AT CANBERRA IN THE	)	NO CS 122 of 2012
AUSTRALIAN CAPITAL TERRITORY	)

BETWEEN: VINCE SCUDERI

Plaintiff

AND:NADARAJAH RASKURASINGHAM

First Defendant

AND: INSURANCE AUSTRALIA LIMITED                 trading as NRMA INSURANCE

Second Defendant

Reasons for Decision of Magistrate Dingwall
Delivered on 30 October 2015.

1.    This is an action in negligence in which the plaintiff claims damages for personal injury which he alleges he sustained in a motor vehicle accident.

2.    The accident occurred between 6pm and 7pm on 18 May 2010 when the plaintiff was the driver of a motor vehicle which was stationary at the roundabout at the intersection of Erindale Drive and Ashley Drive, Monash in the Australian Capital Territory. At the same time, the first defendant was driving a motor vehicle towards the same roundabout when his vehicle collided with the rear of the plaintiff’s vehicle.

3.    The second defendant is the authorised third party insurer of the vehicle driven by the first defendant.

4.    The defendants have admitted liability but deny that the plaintiff suffered the loss and damage he alleges in the statement of claim. In the alternative, they plead that, if he suffered any loss and damage, he does not continue to suffer the alleged loss and damage.

5.    Accordingly, the only issue to be determined is the quantum of damages recoverable by the plaintiff. At first blush, it might be thought that a mere assessment of damages in respect of a man of 64 years of age ought not to be terribly complicated. That is not the case here. The hearing took three full days and two folders of documents were tendered containing 1255 pages, much of this being the plaintiff’s past medical records.

Plaintiff’s Background

6.    The plaintiff was born in Italy on 23 March 1950. He migrated to Australia at the age of eleven in 1961. He was married on 29 May 1971 and had five children who all live locally. He is now separated – and at the date of the hearing had been separated for approximately three to four years. However, he still lived with his wife in rental accommodation.

7.    At the time of the motor vehicle accident, the plaintiff was sixty years of age and was in receipt of disability support payments from Centrelink.

8.    He was 64 years of age at the time of the hearing.

Plaintiff’s Evidence

9.    The plaintiff testified that the accident occurred whilst the he was driving from his home in Queanbeyan to his alleged place of work at the Turkish Pide House in Jamison (I use the word alleged because whether he fact worked at that restaurant is a matter in issue which I shall address in due course). He said that he had stopped at the roundabout at the intersection of Erindale Drive and Ashley Drive to give way to vehicles approaching from his right. He was intending to do a right hand turn onto Ashley Drive. He was driving a sedan, which he thought was a Ford. In trying to recall the make of the car, he admitted to having a “terrible bloody memory”. A seat belt was secured across his body.

10.     He testified that, whilst stopped as he had described, he heard a “big bang” and then felt his body move forward and then back. Either he or the driver of the other vehicle got out and they spoke briefly. A couple of minutes later, he began to feel pain in his chest, neck, back and right shoulder. He then sat in his car for a “long time”. He telephoned a friend, asking him to attend and assist.

11.     The plaintiff testified that, at some point, he observed the rear of his car. He saw that it was “all smashed up” at the back. The boot lid could not be shut and the body of the car was rubbing onto the rear tyres – “you couldn’t drive it”. The rear bumper bar was lying on the ground. He also observed the front of the vehicle that had struck his vehicle. He described it as a large four-wheel-drive, with a large bull bar. He observed no damage to the front of that vehicle – “not even a scratch on the bumper bar”.

12.     When the plaintiff’s friend, Mr Sam Al Hassan, attended the scene, the plaintiff remained seated in his car while Mr Al Hassan pulled parts away from the vehicle so that it could be driven. The plaintiff thought that Mr Al Hassan had driven the vehicle to his own house, while Mr Al Hassan’s wife drove him to his home in Queanbeyan. He testified that while he was being driven home he was suffering pain.

13.     He attended his general practitioner, Dr Lee, a couple of days after the accident. He explained that he had not attended upon Dr Lee earlier because he had been in too much pain, so much so that he “couldn’t even get out of bed”. He described the pain as being all over his body, particularly his neck, back, shoulder and chest.

14.     He testified that, when he saw Dr Lee, he told him of the accident and that he was experiencing pain in his neck, back, shoulder and chest, and that he had a headache. He could not recall how he got himself to Dr Lee’s surgery, but thought that perhaps he had been driven there by one of his daughters.

15.     The plaintiff testified that he had hoped his problems would resolve after a couple of weeks but, instead of improving, his pain became worse. It was too painful for him to sleep on his right side, the side on which he normally slept, causing him to stay awake until 4 or 5am because he was too scared to go to bed. He often ended up sleeping in a chair.

16.     The plaintiff claimed that he had suffered pain continuously from the time of the accident up to the hearing. He said that following his consultation with Dr Lee, he saw many doctors, including specialists, and had had many x-rays taken. He had also been taking a range of medications from the time of that consultation. These included Panadeine Forte, sleeping, antidepressant, Panadol and Voltaren tablets. He was unsure as to when he had started taking the antidepressant tablets, but thought that it had been about six months after the accident. Although he had used antidepressant tablets before the subject accident, following an earlier accident, he had stopped many years before. The plaintiff testified that, at the time of the hearing, his pain symptoms had improved but he still suffered some neck and back pain and his chest, which had previously been much worse, was now a little bit tender. He described his continuing symptoms as follows –

“It kills me. I can’t do things and then it destroys me. It makes me angry”.

He said that he had trouble with both sitting and standing. When sitting, he felt pain in his neck and it was very painful in the area of his right buttock, which was relieved to an extent by straightening his right leg. He was able to drive a lot further than he had been able to for a time following the accident. The problem with driving after the accident was the pain in his neck, which restricted him being able to look left and right and turn his head to the rear.

17.     The plaintiff stated that, because of the severity of his pain, following the accident he had been unable to attend to his own laundry or to shower unassisted. He was unable to say over what period this situation persisted, but thought he had not showered or done any laundry for some months after the accident.

18.     The plaintiff denied experiencing any pain in any part of the body prior to the accident.

19.     He gave evidence of accidents in which he had been involved prior to the subject accident.

20.     The first accident occurred in 1993 when he was driving a motor vehicle carrying one passenger. He was driving to the coast when the vehicle overturned. It apparently had a roll bar fitted. Whilst the passenger sustained injuries, the plaintiff said he had not sustained any injury himself.

21.     He was involved in a further motor vehicle accident in December 1993 when the vehicle in which he was travelling as a passenger swerved to avoid a kangaroo and struck a tree. He sustained injuries to his neck and back in this accident. These were treated. The treatment included the use of Panadeine Forte, chiropractic treatment and consultations with a psychologist. At that time, he was running his own business as an importer of sunglasses from China. He was unable to attend to his business for a while.

22.     The pain caused by the injuries sustained in that accident lasted for a few years, resulting in him using Panadeine Forte over a long period, to such an extent that he became addicted to the medication. As a result, he had attended a pain management clinic at the Royal North Shore Hospital. The treatment provided had been successful for a long time, but he had resumed using Panadeine Forte when he suffered a toothache and the addiction had returned. He was unable to recall if he had been using Panadeine Forte at the time of the subject accident, but was somewhat quick to volunteer that, if he had, it had not been to relieve pain – implying that it would have simply been because of addiction. He confirmed that he had taken action for, and recovered, damages in respect of the injuries he had sustained in this accident.

23.     Apart from the two earlier motor vehicle accidents referred to, the plaintiff sustained injury in a workplace accident, prior to the subject accident. He was unable to recall the year of this accident, but recalled that he had been carrying a number of dinner plates in the kitchen of the Turkish Pide House at Woden when he slipped and fell. At the time, he had been employed to work in the restaurant during lunch and dinner times on six days a week. He had been paid a weekly wage. He thought that in the fall he had injured his right elbow and had also struck the back of his head on the floor.

24.     The plaintiff stated that, before this work place accident, he had not been suffering any pain in his neck or back. He was unable to recall whether he had experienced pain in those areas after the accident. He thought that he might have, but was unable to remember with any degree of certainty.

25.     He testified that he had been unable to work for a few months, maybe a couple, after the workplace accident. He then returned to work at the Turkish Pide House in Jamison, rather than at the restaurant in Woden. At first he was working for a reduced number of hours and then resumed his normal working hours.

26.     The plaintiff also testified about a stroke that he had suffered in 2008. At the time, he had been employed at the Turkish Pide House in Jamison for some years, with breaks to care for his mother and to take an overseas holiday. He stated that, during that period of time, he had experienced no pain in either his neck or back.

27.     In relation to his stroke, the plaintiff testified that he had been at a club one evening when he began feeling dizzy. He went to his car and drove home. The next day he had driven to the Turkish Pide House in Jamison, his then place of work. When he arrived there he had been unable to walk across the road to the restaurant. He was taken to a medical centre and then to hospital. The stroke had caused paralysis down his left side – he was unable to raise his left arm or move his left foot. For the first day after the stroke he had been in a wheelchair. The next day he started using a walker. By the third day he was using a walking stick. He was unable to recall how long he had remained in hospital. He stated that, after he left hospital, he improved each day and, because of this constant improvement, he had not become depressed. One of the persisting consequences of the stroke was the loss of strength in his left arm and hand. He could not recall whether there had been a loss of sensation, but he thought he had experienced numbness in the left arm and hand.

28.     He testified that he had been unable to work for a long time after the stroke due to its effects upon him, particularly the significant difficulty he experienced in raising his left arm. However, immediately before the subject accident his condition had returned to about 80% of normal. He could lift plates and could carry out a lot of his normal activities. He was able to walk, but experienced some difficulty in raising his left foot completely off the ground.

29.     The plaintiff gave a brief history of his working life. This had started when he was a waiter in Italy, at the age of nine years. When he arrived, he started an apprenticeship as a butcher. He became dissatisfied with this and turned to ladies hairdressing. At the same time, he had performed casual work as a waiter and barman. He later moved to Canberra where he worked in two hotels. Initially this involved work as a waiter, but he progressed to being a restaurant manager and assistant functions manager. He then returned to hairdressing in his brother-in-law’s is business in Weston for a few years. Following that stint of hairdressing, he returned to hotel work in Sydney for a time, before becoming a cellar/barman at Old Parliament House for a few years, and then a union delegate at that workplace. Following that, he worked for Australia Post for a time as a delivery driver. He then started up his own importing business and conducted this up to the time of his second car accident, when the car he was travelling in as a passenger struck a tree (“the tree collision”).

30.     After he was again able to work, the plaintiff commenced working for the Turkish Pide House at Woden, as described above, and, after the workplace accident there, he resumed work at the Turkish Pide House in Jamison. He remained in this job for a number of years, claiming that he had been employed as the manager of the restaurant.

31.     The plaintiff testified that he had not been off work for any substantial period of time since his arrival in Australia, apart from the time he had off work as a result of the tree collision and the stroke. I note that, later in his evidence, he conceded that he had not worked for some seven years after the tree collision.

32.     The plaintiff was asked about any assistance in his domestic life he had required after the accident due to his injuries. He said that a couple of months or more after the accident he had received personal assistance from Ms Vivian Schrader, a friend of his. He testified that she had helped him in getting dressed, which involved helping him with getting on his shirt, socks and shoes; showering and shaving. She had also cooked for him, washed his clothes and ensured that he took his medication, about which he was very forgetful. He was unable to say how much time Ms Schrader spent each day in providing him with this assistance. He had not required such assistance prior to the accident.

33.     The plaintiff testified that, at the date of the hearing, Ms Schrader was still providing him with domestic assistance, but not to as great an extent as she had been previously. He thought that this change in his need for such assistance had occurred about two or three months before the hearing. This had coincided with his alleged return to some voluntary work at the Turkish Pide House in Jamison and Civic.

34.     The plaintiff confirmed that he been seen by Dr David McNichol in March 2013. He said that Dr McNichol had asked him how he had been before the accident. He had told him that he had had nothing wrong with him before the accident, apart from the effects of his stroke. He then volunteered, somewhat disingenuously and not in response to a specific question, the following –

“I think he misunderstood me and I think we both misunderstood each other because                   I just told him that before the accident I had no pain, I was okay, but I think he   wanted to know if I had any accidents beforehand and all that, which I didn’t say   nothing because he never asked me.”

35.     The plaintiff also confirmed that, after the accident, he had sought, and been given, legal assistance to complete claim forms relating to the accident. After a good deal of prevarication and unnecessary explanation, he seemed to say that he had not read what had been entered into the forms, by clear inference, upon his instructions.

36.     The plaintiff confirmed that after his stroke he had received income from Centrelink. He said he had told Centrelink that he was unable to do certain things. He had also told Centrelink that he had had a car accident many years prior to the stroke and that he was taking painkillers. He thought that he had also told Centrelink that he had been taking Panadeine Forte and had become addicted to it. When in receipt of Centrelink support, he had kept Centrelink informed of where he was working and how much he was earning. He thought he had disclosed that he was working for 15 or 16 hours a week at the Turkish Pide House.

37.     The plaintiff testified that he had been unable to produce any records of his income prior to and after his stroke.

38.     The plaintiff gave evidence in relation to his employment status at the time of the accident. He testified that, either on the day of the accident or the day before, he had commenced paid employment at the Turkish Pide House in Jamison. According to his recollection, a couple of weeks earlier he had been approached by Mr Mehmet Kazanc (“Mr Kazanc Senior”) who, according to the plaintiff, was the person in charge of the business, notwithstanding that it was “under his son’s name”. Mr Kazanc Senior had asked him if he would manage the restaurant for him because he was having a lot of problems with the business, which was “right down”. According to the plaintiff, he was not sure whether or not he could handle the job because he was still recovering from his stroke. He had told Mr Kazanc Senior that he would try it out and see how he went. After a couple of weeks, he had felt confident doing the job so he started in it “officially” either the day before, or on the day of, the accident – he could not recall exactly. Indeed, according to his evidence, he was in Wanniassa at the time of the accident because the evening or afternoon before, at the Turkish Pide House in Jamison, Mr Kazanc Senior had commented to him that they did not have much salami for the next day and asked him to call into the restaurants in either Wanniassa or Woden to see if they had any available. He had agreed to do this and was on his way to the Wanniassa restaurant when the accident occurred.

39.     According to the plaintiff’s evidence, he had not been paid for his work at the restaurant between the time of this engagement and the accident. He said that when he saw Mr Kazanc Senior a few days after the accident, Mr Kazanc Senior had tried to give him $250 for his work on the day before the accident, but he had refused to take it saying – “No, take it, I don’t want it, I don’t want it, because I let you down”. Mr Kazanc Senior had nevertheless tried to force the money on to him but he had left without taking it.

40.     The plaintiff gave some vague evidence as to the actual conversations surrounding his official employment at the restaurant. As best he could recall, he was to be paid $1250 a week, in cash, for five and a half days work, working during lunch and dinner periods. He said that he had not been given a written contract to sign and had not been required to complete any time records because he was on a set wage. According to his evidence, he was employed to run the whole restaurant. This required him to draw up staff rosters, contact and supervise staff, ensure sufficient stock was available, that the restaurant was clean and the tables were set. He even answered the telephones. In his words – “I was fully in charge”.

41.     The plaintiff stated that on the day of the accident he did not contact Mr Kazanc Senior and advise him that he had been involved in the accident and would not be attending work. His first contact with Mr Kazanc Senior, after the accident, had occurred on the second or third day after. He thought it was on the day that he had attended upon Dr Lee that he had attended at the restaurant. At the meeting, he had told Mr Kazanc Senior about the accident and that he was unable to work. He had told him that he might be able to return within one or two weeks, but was uncertain as to that

42.     It is significant to note at this point that, notwithstanding that, according to the plaintiff, he was “fully in charge” of the restaurant and, indeed, was in search of salami for use in the restaurant on the night of the accident, he made no contact with Mr Kazanc Senior, his alleged employer, until some two or three days after the accident to advise that he was unable to work.

43.     The plaintiff claims that, up to the date of the hearing, he had been unable to return to paid employment at any of the Turkish Pide Houses at which he had previously worked. He gave some vague evidence that two or three months, or more, prior to the hearing he had attempted some voluntary work at the Turkish Pide House in Jamison and then the Turkish Pide House in Civic. The thrust of this evidence, as far as I can discern, was that he was helping out by his presence and offering some supervision, but, due to the pain, was unable to perform the work he had previously been employed to perform and was not in receipt of any wages

44.     The plaintiff was cross-examined at length in relation to a number of aspects of his evidence.

45.     He confirmed that before his stroke in 2008 he was only working 15 hours a week at the Turkish Pide House and was also in receipt of social security benefits. He claimed that this had not been the case for the whole time he had worked at the restaurant. He explained that in the early part of his employment he had worked more hours but then chose to reduce his hours.

46.     When told that the relevant employment records reveal that, after his workplace accident in October 2001, he commenced working at the Turkish Pide House in December 2003 and that by early 2004 he was earning no more than about $260 and $270 a week, he disingenuously sought to explain this by simply saying that that was when he was working 15 hours a week. However, he then conceded that from early 2004 up to the time of the stroke in 2008, some four years, he had only worked about 15 hours a week and was also in receipt of social security benefits.

47.     The plaintiff was asked about the motor vehicle accident which, in evidence-in-chief, he had said occurred in 1993. This was the accident which involved the car he was driving overturning. It was suggested to him that records show that it had occurred in 1988 and not in 1993. He could not recall the date but did not disagree that it could have happened in 1988 if that was what the records showed.

48.     He was then taken to the second accident which, in fact, had occurred in December 1993. This was the accident where the vehicle he was travelling in as a passenger struck a tree. He agreed that in this accident he had injured his lower back, neck and knees. He conceded that he saw doctors for these injuries and conceded that, in July 2005, he may have told Dr Moulding, his then a general practitioner, that he had had a back pain for the prior 10 years.

49.     He conceded that he suffered depression following the 1993 accident and had been admitted to The Canberra Hospital from time to time, for treatment for this condition. He conceded that he may have attended the hospital, as the records show, on 22 August 1997 and related a three year history of depression following the 1993 motor vehicle accident. He also conceded that it was correct if the notes recorded a history of two motor vehicle accidents, the last occurring some nine weeks prior to 22 August 1997, causing a flare-up of chronic back and neck pain. In light of what had been put, he conceded that as at August 1997, he had fact been suffering chronic back and neck pain since the 1993 accident. It was put to him that the pain had caused him a lot of problems, so much so that he had twice attempted suicide. At first he did not concede that this had been due to pain. However, he agreed that it was due to his depression and he ultimately conceded that he had been depressed because he had felt like an old man, due to his inability to work because of the pain his neck and back.

50.     The plaintiff agreed that in 2011 he had been receiving psychological treatment from Dr Carol Warren, Psychologist. He agreed that it was probably correct that she had observed, and noted, that he had been unable to sit and that this was due to his lower back problem. However, he denied a suggestion that he had given a history which included a problem in his lower back due to an accident which had occurred earlier than the subject accident. He agreed, however, that he would have told her that he spent a lot of his time thinking about what he could not do, and that this was probably due to lack of motivation.

51.     Although he had not disclosed it in his evidence-in-chief, the plaintiff conceded that he had been involved in a fourth motor vehicle accident. This had occurred on 13 August 1987. He conceded that in this accident he had aggravated injuries to his neck, back, shoulders and right arm and had also developed depression. At first, he denied making any claim for damages for this accident, but then conceded that a claim in respect of it had been heard together with his claim for the 1993 accident. He conceded that the Statement of Particulars for that claim, prepared in December 1998, was correct in stating that as at the date of the accident he had been incapacitated for work by reason of his injuries sustained in the 1993 motor vehicle accident. He also agreed that he had remained unable to work until sometime after the settlement of these two claims in March 2000 – some six and a half years.

52.     The plaintiff asserted that he had remained unable to work for a further couple of years after the settlement of his claims in March 2000. However, when confronted with records, he conceded that he had in fact returned to work a lot earlier than that. In fact, when he experienced his workplace accident in October 2011, he had been working at the restaurant involved some months prior, having commenced sometime in 2000. He also conceded that he had not in fact recommenced work just nine days before the workplace accident, contrary to what had been stated in the Employer’s Report of Injury form (Ex. D8) which had been completed by his then employer.

53.     The plaintiff agreed that he had made a claim for the workers compensation in respect of his workplace accident in 200, on the basis of an inability to work due to injuries to his neck, lower back and right arm. He was asked if he recalled seeing Dr Whittaker at the request of the workers compensation insurer. He could not recall if he had, but was prepared to concede that he had and that he had no reason to disagree with Dr Whittaker’s report that he was then complaining of ongoing low back and neck pain – one and a half years after the workplace accident. He could not recall if, when he saw Dr Whittaker, he had to frequently get up at his chair at had had difficulty squatting, but conceded that, if that was what was reported, it would have been correct. He denied telling Dr Whittaker that he had had problems with both knees for many years since he was a young man. He agreed that his claim for compensation had been settled by payment of a lump sum, nearly two years after the workplace accident.

54.     The plaintiff was asked about his examinations by Dr McNicol on 26 February 2013 and 17 April 2013, about which he had given evidence in his examination-in-chief. He confirmed that he knew Dr McNicol had been asked, by his own lawyers, to provide a report in relation to his physical condition following the subject accident. He confirmed that he knew it was important to tell the truth and relate the problems he had with his neck and back. When it was put to him that he had not told Dr McNicol anything about his motor vehicle accidents in 1993 or 1997, he replied that he had no reason to tell him about those accidents because, immediately before the subject accident, he had had no problems with his neck and lower back. He agreed that he had had a long history of problems with his neck and back, starting in at least 1993, but firmly maintained that he had had no problems with his neck, back or legs when he had worked at the Turkish Pide House in 2003 and thereafter, up to immediately before the subject accident, including after he suffered the stroke. He maintained that at the time of the accident he had been fit and healthy, apart from the remaining effects of the stroke.

55.     The plaintiff conceded, after some initial evasion, seeing Dr Dhaimat, General Practitioner, in December 2010, a few months after the subject accident, for treatment for the injuries he claims arose from the accident. He agreed that, prior to this, he had never seen by Dr Dhaimat. It was put to him that Dr Dhaimat had asked him if he had had any symptoms of pain in his neck and back before the accident. He replied that he did not think he been asked this and, in any event, he had not told Dr Dhaimat about any symptoms in these areas before the accident because he had had none, nor did he see it as relevant to tell Dr Dhaimat about the injuries to those areas resulting from earlier motor vehicle accidents.

56.     The plaintiff was asked why, after the accident, he had chosen to see Dr Lee, who he had said had never treated him previously, instead of Dr Moulding, the general practitioner he had frequently seen before the accident. He responded that he had had no confidence in Dr Moulding due to him keeping patients waiting for long periods after arrival for an appointment. In my view, this answer was plainly disingenuous and implausible, in light of his subsequent concession that he had in fact been to see Dr Moulding on 13 July 2010, less than two months after the accident, and after his visit to Dr Lee, had continued seeing him throughout 2010 and 2011

57.     He conceded that when he saw Dr Moulding on 13 July 2010 he had probably not told him about the subject accident, nor had he done so at each subsequent consultation. His explanation for this was that he was only seeing Dr Moulding to obtain scripts for blood pressure tablets.

58.     The plaintiff agreed that in May 2011 he had been seen by Dr Shabindi at The Canberra Hospital and that this consultation was partly for the purpose of having a form completed in order to have superannuation released. He could not recall whether he had told Dr Shabindi about the 1993 motor vehicle accident, but seemed to imply that he had not. He also impliedly agreed that he had not told Dr Shabindi about the subject motor vehicle accident, stating, evasively in my opinion, is that Dr Shabindi was “a stroke doctor” who he was seeing only for his stroke and blood pressure.

59.     The plaintiff denied the suggestion put to him that, in light of what he had told and not told the doctors he had seen after the subject accident, he had sought to hide from those doctors the injuries he had suffered in earlier motor vehicle accidents.

60.     The plaintiff agreed that on 25 January 2010, less three months before the subject accident, he had applied to Centrelink for a disability support allowance, on the basis that he was unable to even look for work, and that he had commenced receiving payment of the allowance some two months before the accident. He agreed that, in order to obtain the allowance, he had been required to undergo a physical examination and have carried out a job capacity assessment. He denied the suggestion that during the examination he had said that he was then experiencing chronic lower back problems, involving a high level of pain and stiffness. He said that what he was intending to communicate was that in the past he had had pain in his neck, back, shoulders and arms, which had been treated with analgesics, and that, when he had had those symptoms, he had had a limited capacity to sit and stand for long periods. He was at pains to stress that what he had recounted all related to the past and he denied saying that he was uncertain about the prognosis for his back problem. He testified that he believed he had been granted the disability support allowance solely because of the effects on him of the stroke. He maintained that at the time of the subject accident, he was not experiencing any pain in his neck or back.

61.     The plaintiff confirmed his earlier evidence that he was in too much pain to get out of bed on the day after the subject accident. He then modified this to say that he was referring to the morning and that he had found it very, very hard to get out of bed, but could not recall how long he had remained in bed on that day.

62.     He agreed that it had long been his habit to attend licensed clubs and pubs to play poker in National Poker League tournaments held at such premises. When it was put to him that records of the National Poker League disclosed that he had played poker at the Queanbeyan RSL Club on the evening of the subject accident, he agreed that he had. He offered, in my view the following disingenuous explanation, having been caught out by records, -

“I went to Queanbeyan RSL and I think I paid my fee and I lasted maybe   10 minutes, and I went home.
  .  .  .
  “Because his wife – the man’s wife who gave me a lift to Queanbeyan, I           
  have to go to poker.”

He also conceded that on the following day he had attended the Queanbeyan Australian Football Club and again played poker. He offered the following unconvincing explanation -

“If I did, I got a lift with him, I went down there, I stayed there for half an   hour, an hour, whatever it was, and went home again.”

He agreed that on that day, he had not gone to see a doctor, suggesting that he been unable to make an appointment. He also agreed that he had not attended at a hospital outpatients unit, nor attended a medical centre, where he might have been seen on the same day. His explanation for not attending either was that he knew exactly what was wrong with him and that he had no broken bones and was not bleeding.

63.     When asked why he had ultimately decided to go and see Dr Lee, he said it was simply to obtain tablets (presumably pain relief tablets). He conceded that, on the day he had seen Dr Lee, he had attended the Queanbeyan Golf Club to play poker. His explanation for attending on this occasion was that he was being driven about by others and had been left no choice but to go with them to the club. When it was suggested that he had could have simply stayed at home in bed, he said, somewhat implausibly, that he been in too much pain to stay in bed and that he could not sleep or relax – he was in too much pain to either get into bed or get out of bed.

64.     Consistent with his claim that he had been employed as the manager of the Turkish Pide House at Jamison the day before the accident, he agreed that he was required to work on the day following the accident and the day following that, but that he had not gone to work. He conceded he had not telephoned Mr Kazanc Senior on the day after the accident to tell him that he could not attend the work. He also conceded that the job which he claimed to have secured was going to pay him higher wages than he had ever earned working for the Turkish Pide House and he was “pretty happy” about having secured it. When asked why, in the circumstances, he had not telephoned Kazanc Senior on the day after the accident to advise him that he could not attend for work, he gave a number of evasive answers. First he said he could not remember if he had rung Mr Kazanc the day after the accident or the day after that. Then he suggested that maybe it was because he thought it was going to get better and he had thought that he would leave it until the next day to go and tell Mr Kazanc in person, because it was very hard to explain things to Mr Kazanc on a telephone. He claimed that he was not concerned about his employment being terminated due to his unreliability because he had worked at the restaurant for years.

65.     When I asked him, at the end of his cross-examination, what arrangements had been made at the restaurant on the night of the accident, in view of the absence of him as manager and the salami that he was to collect, he offered that he thought Mr Al Hassan had rung Mr Kazanc Senior, at his request and because he was in no mood to speak to Mr Kazanc, to tell him. This was a somewhat curious answer in light of his earlier evidence that it was difficult to explain things to Mr Kazanc on a telephone. One would think that someone with whom Mr Kazanc Senior was not familiar, as Mr Kazanc’s evidence disclosed, would face even greater difficulties in explaining what had happened. When I asked if Mr Kazanc Senior was the only person at the restaurant that night, he answered that he was the only one in charge.

66.     The plaintiff was then asked about a letter that had been produced, purportedly signed by Mr Kazanc Senior. The letter is undated. It became Exhibit D1. At two places in the letter Mr Kazanc Senior’s name is misspelt as “Zazanc”. It purports to confirm that the plaintiff was employed as a restaurant manager from 17 May 2010, with a take-home salary of $1,250 after tax, and that he had been unable to return to his employment after the accident on 18 May 2010. The plaintiff was very evasive as to who had drawn up the letter for Mr Kazanc to sign, but ultimately conceded that he had probably drawn it up and had had Mr Kazanc Senior’s son or daughter read it over to him before he signed it. When pressed about the misspelling of Mr Kazanc Senior’s name, he said that he was a bad speller. I note, however, that when asked to spell Mr Kazanc’s name during his evidence-in-chief, and before this letter was brought to his attention, he was able to spell it correctly. When asked why he had written the letter, he explained that his lawyer had asked him to obtain a letter concerning his employment and, as Mr Kazanc Senior “can’t even speak English properly”, he had asked the plaintiff to write it and had said that he would sign it. When Counsel for the defendants asked if it was correct that when the letter had been read over to Mr Kazanc Senior, by either his son or daughter, the misspelt name had not been detected, his answer was simply – “Exactly, yes”.

67.     In light of his earlier concession, obtained after some evasion, that he and Mr Kazanc Senior had been friends for many years and that it was Mr Kazanc Senior with whom he had dealt in the past concerning his employment and wages at the Turkish Pide House, the circumstances in which the letter was purportedly drawn up, with Mr Kazanc Senior’s name misspelt, leads to a significant suspicion as to its authenticity and as to the veracity of what is stated in it. When it was put to the plaintiff that he and the Mr Kazanc Senior had invented the alleged employment so that he could obtain more money in his claim, he said that Mr Kazanc Senior  would never do such a thing and nor would he.

68.     It became clear during cross-examination of the plaintiff that, notwithstanding his assertions in evidence-in-chief and earlier in cross-examination that he had not seen Dr Lee at any time prior to seeing him two days after the accident, he had in fact seen him in January 2009 regarding his stroke and again in March 2009 and February 2010 regarding his blood pressure. He conceded that he told Dr Lee in March 2009 that he had been taking Panadeine Forte for a number of years, but denied it was to relieve back pain. He maintained it was because he was addicted to the medication.

69.     When it was pointed out to the plaintiff that his medical records showed that between May and August 2010 he had seen Dr Lee on three occasions concerning the injuries he had allegedly sustained in the accident and had seen Dr Moulding on one occasion, concerning his blood pressure, he could offer no credible explanation for seeing two general practitioners over what was a short period of time.

70.     The plaintiff was asked about an entry in his patient notes made by Dr Dhaimat when he first saw him in December 2010. The note related to a consultation on 1 March 2012 and was to the effect that the plaintiff had sustained an injury to the lower part of his right leg in a fall. He denied having a fall. According to his recollection, on that occasion, he had seen Dr Dhaimat for sciatic pain in his right buttock and leg and had made no mention of a fall. He conceded that on this occasion he may have told Dr Dhaimat that he had pain in his knees. However, surprisingly, he was unable to recall if he had injured his knees in the subject accident.

71.     The plaintiff agreed that, on 21 June 2011, he had seen Dr McDowell, Neurosurgeon, on referral from Dr Dhaimat. He was told that Dr McDowell had recorded him as saying that he felt that over the previous 12 months his pain had lessened. When asked to confirm whether he had said this, he could not recall. However, he agreed that it was a true statement at the time.

72.     He conceded that, when he saw Dr McDowell on a subsequent occasion, he had been offered an injection into his lower back to try and help relieve his pain. He also agreed that he had refused the offer. His reasons for doing so were that Dr McDowell could not guarantee that the pain would not return and he had a fear of needles.

73.     The plaintiff was told of a note in his patient notes, made by Dr Dhaimat at their first consultation in December 2010, which recorded him as saying that he did not feel he had sustained any significant injury, and had not been admitted to hospital. HIs somewhat evasive explanation for this was that he had no broken bones, nor was he bleeding

74.     The plaintiff was asked to confirm his evidence-in-chief to the effect that he had first obtained domestic assistance two or four months after the accident. In his response, he contradicted his early evidence by saying that it had only been about two to three weeks, or a month, after the accident. However, he confirmed that the assistance had only commenced after the accident.

75.     Counsel for the defendants then read to him a statement made by his then lawyers in a letter to the defendants’ lawyers to the effect that Ms Schrader had provided him with assistance, paid for by Centrelink, from the time of his stroke. He was asked if this was correct. He said it was not. He was certain that she had not provided him any domestic assistance prior to the accident, and what had been stated by his lawyers was incorrect. He later conceded that, after the stroke, Ms Schrader may have helped him a bit for a couple of weeks, but implied that she provided very little assistance, rather it had been provided by his wife and daughter. In my opinion, he was evasive when dealing with questions on this subject.

76.     The plaintiff was cross-examined in relation to the medical examinations carried out by Dr Stubbs which he had attended at the request of the defendants. He was asked whether he had known it was important that he tell Dr Stubbs about all the injuries he had suffered in the subject accident. Somewhat evasively, and in apparent anticipation of what was to come, he answered – “Not really, because he had all the records. He had it on file”. When asked to confirm that he had not told Dr Stubbs that he had had a problem with his lower back, his response was again evasive and he suggested that maybe Dr Stubbs had not written it down.

77.     Counsel for the defendants drew the plaintiff’s attention to the fact that, whilst giving evidence, he had often stood up and then returned to a seated position. He was asked if this was because of a problem with his lower back. He confirmed that it was related to his lower back and sciatica. When it was suggested to him that, consistent with a note in his patient records made by Dr McDowell, to the effect that his sciatic problem had commenced in the early part of 2012, he agreed.

78.     The plaintiff’s attention was drawn to various answers provided in the Notice of Claim and Additional Information Form (Part of Exhibit P1), which it appears from his evidence was prepared by lawyer and then signed by him. In particular, he was taken to the answers provided to the questions 2.16 and 5.1. Question 2.16 asked for the estimated speed of each of the vehicles involved in the accident. The speed stated for the first defendant’s vehicle was 60kmh. The plaintiff could not recall the document being prepared, nor could he provide an explanation for why such an overstated speed was inserted into the form. In my view, the only reasonable inference to be drawn is that the plaintiff told his lawyer that that was the speed at which the first defendant’s vehicle was travelling just prior to the impact. Question 5.1 asked whether the plaintiff had lost all would lose wages, salary or business income because of the accident. The answer provided was “N/A” (clearly meaning “not applicable”. Again the plaintiff could not recall the document being completed, nor was he able to provide an explanation for this answer being inserted if, as he claimed, he had been employed as the manager of the Turkish Pide House in Jamison a day or so prior to the accident. Again, the only reasonable inference to be drawn from the answer provided in the form was that it was provided by the plaintiff to his lawyers.

79.     The plaintiff confirmed his earlier evidence that he had been unable to have a shower for some months because he was in too much pain. He added that he also had not felt like having a shower. He said it was too painful to lift his hands up to describe himself and dry himself after. He agreed, however, that he had been able to go to clubs on each of the two days after the accident to play poker. When it was put to him that he was making up his evidence about not being able to shower, he rejected the suggestion, saying – “Having a shower and playing poker is two different things”.

80.     Counsel for the defendants reminded the plaintiff that, in his evidence-in-chief, he had said that after the accident the rear bumper bar of his car was lying on the ground. It was suggested to him that this was not so and that, in fact, there had only been a minor dent on the bumper bar. His response was that he had not said that it had fallen off, but that it was touching the ground and it did not just have a small dent on it.

81.     Counsel for the defendants put to the plaintiff the following:

·that his physical condition following the subject accident was no different to what it had been before the accident;

·that he suffered no significant injury to his neck in the accident;

·that any neck pain he was experiencing after the accident, and at the time of the hearing, was the same as the neck pain he was experiencing before the accident;

·that he suffered no injury to his lower back in the accident that caused any change in the existing condition of his back;

·that his ability to work after the accident was the same as it had been before the accident;

·that any assistance he received in his home after the accident was no different to the level of assistance he had received before the accident; and

·that he had had long-standing problems with his back and neck up to the time of the accident.

He rejected each assertion and maintained that, at the time of the accident, he had had no mental or physical problems and no pain. He conceded that he had had some problems due to his stroke, but was otherwise enjoying his life.

Evidence of Mr Kazanc Senior

82.     Mr Kazanc Senior testified that he was employed as a chef at the Turkish Pide House in Jamison. He had previously been the owner of the restaurant but had ceased his ownership seven years prior. He said that in 2010 his son was responsible for the hiring of staff and that when staff was needed it was his son who did the hiring.

83.     He had known the plaintiff for 18 years. The plaintiff had started working at one of his family’s Turkish restaurants in 2002.

84.     He was aware that the plaintiff had been involved in a motor vehicle accident on 18 May 2010

85.     Prior to 18 May 2010 he and the plaintiff had had some discussions about the plaintiff returning to work at the Turkish Pide House in Jamison. He could not recall when the discussions took place. He recalled that the plaintiff had wanted to return to work and he had told him that if he was ready for it he could come in and work. They had spoken about the plaintiff working five days a week, but before anything was finalised the plaintiff left and had not returned. There had been no discussion about how much the plaintiff would be paid.

86.     Mr Kazanc Senior would have relied on the business’s accountant to work out the amount that the plaintiff would be paid. However, he had not discussed the matter with the accountant because the plaintiff had not returned to work. He said that had the plaintiff returned to work he or his son would have told the accountant how much the plaintiff was to be paid. He said that they had discussed the plaintiff being “something like a manager” “, preparing the rosters for all the workers.

87.     Mr Kazanc Senior said that, two days after the accident, a friend of the plaintiff’s had called to tell him about the plaintiff’s accident.

88.     He testified that on the day of the accident he had expected the plaintiff to collect some pastrami from a restaurant in Woden. However, there had been no effect on the restaurant as a result of the plaintiff not attending that night, or his failure to bring the Pastrami.

89.     Mr Kazanc Senior was shown a letter addressed “To Whom It May Concern” and stating that the plaintiff was employed at the Turkish Pide House in Jamison from 17 May 2010 as a Restaurant Manager, with a take-home salary of $1250 after tax. This letter was in terms similar to Exhibit D1, which had been shown to the plaintiff in his cross-examination, except that Mr Kazanc’s surname was correctly spelt, he purported to be the business manager of the restaurant rather than the owner as stated in Exhibit D1, and it was dated 23 June 2010 whereas Exhibit D1 was undated. Mr Kazanc said that he didn’t know what the document was, but he did recognise the signature at the bottom. When the contents of the letter were translated to him, he said that it was incorrect. He said that the plaintiff had not started work on 17 May 2010, that he and the other plaintiff had talked about him starting work but he had not started at all. The letter became Exhibit P2.l

90.     Mr Kazanc Senior testified that, after the accident, the plaintiff had come to the Turkish Pide House in Jamison and Civic to help out, but had not been employed. He said that from his observations the plaintiff could not do things like he used to be able to.  He said there were differences between how the plaintiff was before the accident and how he was after the accident, but he was unable to be specific as to the differences. He said he was not like he was three years before but, again, apart from saying that he did not have the strength he used to have, he could not provide any specifics. However, he did state that when the plaintiff had been to the restaurants after the accident he had remained seated for long periods of time because he could not work.

91.     In cross-examination, Mr Kazanc Senior agreed that as well as knowing the defendant for 18 years they had also been friends for that period.

92.     He was asked to confirm that, although the plaintiff was not employed at the restaurant, he had been asked to pick up some pastrami from a restaurant in Woden. When asked what had happened when he did not arrive with the pastrami, Mr Kazanc said that he had gone to pick it up. He apparently had done this because a friend of the plaintiff had telephoned and told him about the accident. In this respect, he sought to correct his earlier evidence that a phone call had not been made until two days after the accident. He appeared to be saying that what he had meant was that the friend had called, he thought on the same day as the accident, and that it was the plaintiff who had attended at the restaurant two days later.

93.     Mr Kazanc Senior conceded that, after the plaintiff had failed to return to work at the restaurant, nothing was done to replace him by employing another manager.

94.     He was shown the copy of the letter that became Exhibit D1. He agreed that his surname had been misspelt, but said that he had not paid attention when he signed the letter. He confirmed that he had no understanding of what was stated in the letter when he signed it.

95.     He denied ever offering to pay the plaintiff money for the time that he had spent at the restaurant prior to the accident.

96.     He further denied that he and the plaintiff had simply invented the alleged employment of the plaintiff.

Evidence of Mr Al Hassan

97.     Mr Sam Al Hassan was the person who the plaintiff had telephoned seeking assistance on the day of the accident. Mr Al Hassan had known the plaintiff since the time of his stroke in 2008. They had been introduced by a mutual friend at a club

98.     Mr Al Hassan confirmed that he had received a telephone call from the plaintiff who told him that he had been in an accident. Mr Al Hassan and his partner went to assist the plaintiff. When they arrived the plaintiff was seated in his car. Mr Al Hassan obtained details from the driver of the other vehicle. He then tried to move the plaintiff’s car forward but found that the rear arches over the wheel had been pushed back onto the tyres making it difficult to move the car. He also noted that the rear bumper bar and boot lid had been damaged. He had pulled each of the arches outwards to create a gap between them and the wheels. He then placed the plaintiff in his partner’s car and he got in the plaintiff’s car and drove it to his own house in Monash.  

99.     He had spoken with plaintiff about the accident. The plaintiff had said that the other driver had hit him from behind. When he asked the plaintiff if he was all right, he had replied that he had pains, couldn’t move and felt dizzy. The plaintiff had said that it was just the shock from the accident. The plaintiff had told him that he was on his way to Erindale to pick up some ingredients or food to take it back to Jamison.

100.     When Mr Al Hassan was asked whether he and the plaintiff had remained at his house for the rest of the day, he said he could not recall very well and then volunteered that they had gone to play cards at Queanbeyan that same night or the following night, stating that they had regularly gone out to play poker at the Queanbeyan Tigers Club. He said that whichever night they had gone, the plaintiff had started to feel uncomfortable with pain in his back after the first half-hour to 40 minutes. He has said that he couldn’t sit any longer and had asked to go home. They had then gone home, but Mr Al Hassan could not recall where he had taken the plaintiff for the night.

101.     Mr Al Hassan said that when he first met the plaintiff, i.e. in 2008, he knew that he was working or about to get a job at the Jamison Turkish restaurant. This answer is somewhat curious given that the plaintiff was unable to work from the time he had his stroke in 2008 until at the earliest the day before subject accident.

102.     Mr Al Hassan was asked whether he had observed any changes in the plaintiff between the time before the accident and the time after the accident. He said that the only changes he had seen was that, after the accident, the plaintiff was really complaining about pain. He said that this had been just every now and then, but he had noted nothing about his physical appearance.

103.     In cross-examination, Mr Al Hassan said that the damage he observed to the rear bumper bar was a dent. He made no mention of the bumper bar lying on the ground, as asserted by the plaintiff.

104.     He said that, when he had returned to his house with the plaintiff, the plaintiff had telephoned a person called Memo (Mr Kazanc Senior) and had then handed him the telephone, asking him to tell Memo that he had had an accident and was unable to make it back to the restaurant. This appears to accord with the evidence of Mr Kazanc Senior.

Evidence of Mr Shukru Kazanc

105.    Mr Shukru Kazanc (“Mr Kazanc Junior”) is a son of Mr Kazanc Senior. At the time of the hearing, he was working at the Turkish Pide House in Jamison and was the sole director of the company which owned the restaurant, apparently under a family trust arrangement. At the time of the plaintiff’s accident in May 2010, the business was owned by his brother and mother, but he was in charge of the restaurant. He was the one responsible for employing staff.

106.     Mr Kazanc Junior testified that on 18 May 2010 the plaintiff was an employee of the Turkish Pide House in Jamison. According to his evidence, the plaintiff had been employed by Mr Kazanc Senior, who had briefly told him about the circumstances of the plaintiff’s employment. He said that the plaintiff had been working at the restaurant for a couple of weeks prior, on a trial basis, and then he was employed to commence work on Monday, 17 May 2010, the day before the subject accident. He recalled working with the plaintiff that day. According to him, he had allocated duties to the plaintiff. He said that the agreement with the plaintiff was that he would work six day shifts, about 50 to 60 hours a week and he was to be paid “about” $1250 a week.

107.     Mr Kazanc Junior testified that the plaintiff had attended for work at about 10:30 am on Monday, 17 May 2010. During the day he, Mr Kazanc Junior, had had a little argument with his father about the collection of supplies from his uncle’s restaurant in Erindale. It was ultimately agreed that the plaintiff would pick up the supplies from Erindale.

108.     Mr Kazanc Junior did not work at the restaurant on the night of 18 May 2010. He said that, when he attended work the following morning, the plaintiff had not come into work and his father had told him about the plaintiff’s accident.

109.     Mr Kazanc Junior testified that the plaintiff had been employed as the Manager of the restaurant and, although he had been responsible for rostering staff before that, it was intended that the plaintiff would take over that function. He said that before the plaintiff had been employed as the Manager, the business had employed other managers but none had been suitable. He also testified that the business had employed managers after the defendant was unable to return to work in May 2010.

110.     He testified that, prior to the subject accident, the plaintiff had never complained to him of pain in his neck or back. He said that when he first saw the plaintiff, about one week after the accident, he “didn’t look right” and “was pretty crook”. He observed him to be in pain. He said that since the accident the plaintiff had been attending at the restaurant and had made attempts to help out.

111.     In cross-examination, Mr Kazanc Junior testified to that he had first been asked to give evidence (about events occurring for years earlier) on the day before he was called as a witness, that he had never provided a written statement to anyone and had not consulted any documents before giving his evidence.

112.     When he was informed that Mr Kazanc Senior had testified that the plaintiff had not been an employee on 18 May 2010, he said that he was wrong. When asked if the business’s wage records would confirm the employment, he said they would not because the business’s accountant would usually attend on Wednesdays and, because the plaintiff had not returned on that day, there had been no opportunity to include him in the wage records.

113.     He was asked whether the plaintiff had been paid for the day and a half that it is alleged he worked. He replied that he had not, nor had any offer been made to pay him. When asked why, he gave an evasive answer to the effect that, because the plaintiff was to be paid a weekly wage and he had not completed a week, he was not paid,

114.     He denied a suggestion by Counsel for the defendants that he was making up the alleged employment in order to help the plaintiff in obtaining damages. He said there was nothing for him to gain by doing so.

115.     In answer to questions by me relating to the plaintiff’s mission to obtain stock from his uncle’s restaurant in Erindale on the day of the accident, he said that stock was obtained from the Erindale restaurant on a regular basis. He explained that the stock involved came from Melbourne and was delivered to the Erindale restaurant and then had to be picked up by someone from his restaurant. He made no mention of a shortage of salami or pastrami in the restaurant necessitating the plaintiff going to either a Woden or Erindale restaurant to borrow some, as was suggested by the plaintiff and Mr Kazanc Senior.

Evidence of Ms Vivian Schrader

116.     Ms Vivian Schrader had known the plaintiff for 19 years and regarded him as a friend. She became aware of the plaintiff’s involvement in the subject accident about one or two weeks after it had occurred, when she was told about it by one of the plaintiff’s daughters. She had not been in contact with the plaintiff for about six months prior to that.

117.     She said that a couple of days after she had been told about the accident, she went to see the plaintiff to see if he was alright. When she asked him how he was, he complained that the whole right hand side of his body was “not good”. She said that he seemed “cranky”, his eyes watered a lot, he complained about how much pain he was in on the whole right hand side of his body and he just looked uncomfortable.

118.     Ms Schrader testified that she had worked at the Turkish Pide House in Jamison, on and off, for some seven years. When she worked she would average about 20 hours per week. She had obtained the job when the plaintiff had introduced her to Mr Kazanc Senior. She thought that the plaintiff was working at the restaurant when she started. However, she did not know for how long he had been working there, nor how often. She recalled that she was working at the restaurant at the time that the plaintiff suffered a stroke.

119.     Ms Schrader had not been in contact with the plaintiff when he had his stroke in 2008 and only became aware of it when one of the plaintiff’s daughters had told her of it. She had visited the plaintiff in hospital and offered him her help, but he had said he did not need it. According to her recollection, he had made a good recovery from his stroke because he had not needed to help.

120.     Ms Schrader had maintained contact with the plaintiff for a couple of years after his stroke and had observed him working during that time. She thought that he had returned to work at the restaurant about one year after his stroke. She observed that he was walking more slowly and did things much more slowly, but was doing some work. She thought that at that time he had not made a return to full-time work. His return had been gradual. She was unaware as to whether he was being paid for this work. It would seem clear from other evidence that he was not, and that his presence at the restaurant was voluntary, in order to keep himself occupied.

121.     Ms Schrader testified that the only complaints the plaintiff made after his stroke was that he walked with a limp, due to a problem with his left foot. He made no complaint of pain in either’s neck or back. She said that, even at the time of the hearing, he still had a limp but, in her opinion, it had improved.

122.     After Ms Schrader had made contact with the plaintiff following the subject accident, she commenced helping him to look after himself. She said that he become a terrible person and had no regard for his personal hygiene – he did not bother shaving, he smelt and looked like he did not shower. Prior to this he had looked after his personal hygiene. She had made him have showers and, after he had showered, she would sometimes shave his head and help them put on his shirt. She had cooked meals for him because he did not seem to be eating. Sometimes she would rub the right side of his body to help relieve pain. She would occasionally wash his clothes. She would frequently have to remind him to take his medication because he was forgetful. She estimated that when she helped him in the ways described it would take about 40 minutes.

123.     It was clear from Ms Schrader’s evidence that the plaintiff spent a lot of time, almost every day, at her home and that, to an extent, he had become dependent upon her. She described it as being somewhat like a mother/child relationship. Indeed, it is clear that the domestic assistance she provided to the plaintiff was not provided in his home but hers. It is also clear that she did not cook separate meals for him. Rather, she simply made provision for him in the meals she was cooking for her family in any event.

124.     According to Ms Schrader, about once a month she would collect medication from a chemist for the plaintiff and on occasions she accompanied him to specialist appointments. Occasionally she had driven him places, but mostly he drove when he had requested her to accompany him.

125.     Ms Schrader testified that in the couple of months before the hearing she had been trying to wean the plaintiff off her by seeing him less and less and, at the time of the hearing, she was not spending any time helping him. Her contact with him was restricted to meeting him in Civic for tea and talk. These meetings took place at the Turkish Pide House in Civic. She observed that, when she was with him, he would not sit in one place for long, getting up frequently to walk around. He told her that this was because sitting caused him pain. It is to be noted that by this stage he had developed sciatica.

126.     In cross-examination, Ms Schrader agreed that she had been receiving a payment from Centrelink of $50 per week, by way of a carer’s allowance, in respect of the care she provided to the plaintiff. She testified that she had begun receiving this payment after the subject accident. She denied that it had commenced after the plaintiff’s stroke. She said the payment would have to cease because she was no longer providing the assistance.

127.     Ms Schrader agreed that, by the time she started seeing the plaintiff after the subject accident, he had no problems getting into a car and driving himself to a chemist. The reason she would go to chemists was because he was forgetful.

128.     Ms Schrader was asked whether in 2004 and 2005 she had noticed that the plaintiff had been unable to sit for very long. She said he would get up and have a cigarette. She attributed this to him being a “bad smoker”.

Evidence of Mr Sugul Rasakulasingham

129.     Mr Sugul Rasakulasingham was the driver of the motor vehicle which collided with the rear of the plaintiff’s vehicle on 18 May 2010. The vehicle he was driving was a Suzuki Vitara (a small four wheel drive vehicle). It was not fitted with a bull bar at the front. Mr Rasakulasingham could not be precise about the time of the collision but he thought it was between 7:30 and 8:30 pm. The vehicle was owned by his father, the first defendant.

130.     Mr Rasakulasingham testified that he had been driving from a gym in Woden to his home in Calwell. He said that, as he approached the roundabout at the intersection of Erindale Drive and Ashley Drive, Wanniassa, he saw a vehicle ahead of him stopped at the entrance to the roundabout. He slowed his vehicle down to nearly a stop, just crawling. His vehicle was then about one car length behind the vehicle in front. He looked to his right and saw a vehicle approaching. He judged that there was sufficient time for the vehicle ahead of him and his vehicle to negotiate the roundabout without colliding with a vehicle coming from the right. He commenced to accelerate gently but then realised that the vehicle ahead of him had not moved off. At this point, the front of his vehicle was about half a car length behind the vehicle ahead. He immediately depressed his clutch and applied his brakes, but it was then too late to avoid colliding with the back of the vehicle ahead. He estimated that when he commenced to apply his brakes his car was travelling at about 10 kmh. He believed that the plaintiff’s vehicle was stationary at the time of the collision. According to his recollection, it was nearly dark at the time and his headlights were illuminated.

131.     He testified that after the collision the plaintiff had moved his vehicle onto a grass verge at the side of the road and that he had followed with his vehicle. Both he and the plaintiff got out of their respective cars. He inspected the front of his vehicle and noted only a small dent on his bonnet. He looked at the rear of the plaintiff’s car and noted that there was a large dent in the rear bumper bar. He didn’t regard this as being a large amount of damage. He didn’t look at any other part of the plaintiff’s car, in particular, he did not look at its rear wheels or wheel arches.

132.     Mr Rasakulasingham was cross-examined regarding the speed of his vehicle as he approached the roundabout. Notwithstanding suggestions put to him that he had been travelling at a faster speed, he adhered to his evidence that his speed at the relevant time was about 10kmh. In my view, his evidence was not weakened in cross-examination

Plaintiff’s Pre-accident Medical History

133.     It would be a long and somewhat pointless process for me to attempt to extract, from the voluminous material that was tendered, a detailed summary of the plaintiff’s medical history prior to the subject accident. In my view, it is sufficient to note that there is clear and reliable evidence that he was injured in motor vehicle accidents in 1993 and 1997, that he was injured in a workplace accident in October 2001 and that he suffered a stroke in 2008. As a result of the 1993 accident he sustained injuries to his neck, shoulder girdles and lower back. In the 1997 accident he aggravated injuries to his neck, back and shoulder and suffered an injury to his knees. As a result of these two accidents, he did not work for some seven years between 1993 and 2000. As a result of the workplace accident in 2001 he sustained injuries to his right elbow and right buttock and subsequently complained of neck pain, headaches, continuing low back pain radiating to his buttock and right hip pain, all of which were regarded by his treating doctor, Dr Roantree, as involving soft tissue injury. He did not work thereafter for some two years. Following his stroke in 2008, he suffered severe left side paralysis and weakness and unsteadiness. At the time of the hearing, he remained affected by the stroke to some extent by reason of a weakness in his left foot which caused him to limp. After suffering his stroke, he did not work until at least May 2010, if he indeed worked at all.

134.     There is also a significant amount of reliable evidence that from the time of the motor vehicle accident in 1993, the plaintiff suffered from chronic neck and low back pain, pain in his shoulders and numbness in his right arm, and that, just prior to the accident he was suffering pain in his lower back. A brief summary of this evidence is as follows –

·In the report of Dr Richard Molloy dated 9 May 1996, the plaintiff is recorded as complaining of pain in his low back and neck and a an injury  to his right shoulder, which had continued since the accident in December 1993.

·In a note made in The Canberra Hospital patient notes on 22 August 1997, Dr Llewellyn reported that the plaintiff was complaining of soreness in his neck, low back, hips and shoulders and numbness in his right arm.

·In the Canberra Hospital patient notes dated 18 March 1998, the plaintiff is recorded as complaining of chronic back pain.

·In the Calvary Hospital discharge summary, dated 5 June 1998, the plaintiff is recorded as complaining of chronic back pain.

·On 23 August 1998, Dr Bonner noted in the plaintiff’s patient notes at The Canberra Hospital that the plaintiff had reported chronic pain for five years in his lower back, neck and shoulders.

·In the Statement of Particulars, dated 2 December 1998, filed on behalf of the plaintiff by his lawyers in respect of his claim related to the 1997 accident, it is stated that as a consequence of that accident the plaintiff suffered aggravation to injuries to his neck and back, shoulder, lower back and right forearm.

·In an entry in the plaintiff’s patient notes, made by Dr Moulding on 31 March 1999, the plaintiff is recorded as complaining of problems with his knees, back and neck and that he had been unable to sleep for two days.

·In the report of Dr Ross Whittaker dated 20 March 2003, the plaintiff’s is reported as having ongoing low back pain and neck pain, spreading to the upper shoulder girdles.

·In a Job Capacity Assessment Report prepared by Centrelink, dated 8 January 2008, the plaintiff is recorded as stating that he had suffered from a spinal disorder, following a motor vehicle accident nine years prior, which was treated with analgesics and medical consultations. The plaintiff reported that he was unable to sit or stand for long periods.

·In an entry in the plaintiff’s notes, made by Dr Lee on 5 March 2009, the plaintiff is recorded as having been on Panadeine Forte for one year.

·In a Centrelink form completed on 5 February 2010 by Dr Moulding, the plaintiff is reported as complaining of ongoing low back pain in the L4 region and back stiffness, which had been present “for years” and which was related to his 1993 motor vehicle accident. It was reported that he was prescribed Panadeine Forte for the pain. As to the impact of his condition on his ability to function, Dr Moulding stated that he was in too much pain and had reduced mobility.

·In the “Medical Conditions” section of a Job Capacity Assessment Report prepared by Centrelink, dated 18 February 2010, it was noted that the plaintiff suffered from a spinal disorder which was being treated with medication, physiotherapy and ongoing periodic GP consultations. The diagnosis was recorded as being unclear but that there were no sciatic symptoms. In the Assessment Summary the following is stated –

“Client reported that he was involved in a motor vehicle            accident approximately nine years ago and injured his back.       At the time he   participated in an extensive rehabilitation program but continues to experience physical limitations as a            consequence of the injury. In     particular he reported that he     cannot sit or stand for prolonged periods of time and the    assessor observed behaviour consistent with same where   client continually changed from a sitting position to a standing     position throughout the interview”.

It is to be noted, that this report was written exactly three months prior to the subject accident.

·In the report of Ms Coral Warren, Clinical Psychologist, dated 27 January 2011, Ms Warren reported that on 19 May 2011 the plaintiff was unable to sit and explained that it was due to his lower back which was a previous issue (i.e. prior to the subject accident).

·In the report of Dr Tshibindi of 2 May 2011, he noted, as part of the plaintiff’s past medical history, a knee injury, back pain and a motor vehicle accident in 1993.

Medical Evidence Relating to Alleged Injuries Arising from the Accident

Treating Doctors

135.     The first doctor from whom the plaintiff sought treatment following the subject accident was Dr Lee, General Practitioner. Dr Lee’s notes record that the plaintiff consulted him on 20 May 2010 regarding complaints arising from a motor vehicle accident which had occurred on 18 May 2010. The note of the consultation is brief but, from what is decipherable, it appears Dr Lee referred the plaintiff for x-rays of his neck and back.

136.     The plaintiff returned to see Dr Lee on 16 June 2010. He had not undertaken the x-rays ordered by Dr Lee because he had forgotten them. He complained of pain when moving this neck and of back pain. Dr Lee reordered the x-rays.

137.     On 19 August 2010 the plaintiff returned to see Dr Lee. He was seeking a medical report related to this claim. Dr Lee provided one but noted that he was unable to treat the plaintiff due to a continuing lack of x-ray results. He noted that the plaintiff was still complaining of neck pain.

138.     In a Motor Accident Report provided by Dr Lee, he noted that the plaintiff had complained of neck pain, headache and back pain, but he had found no other evidence of injury or fracture. He reported that he had ordered analgesia on 20 May 2010. He noted that had ordered x-rays of the plaintiff’s neck and back but had not received any results. He also noted that he had known the plaintiff since 1 September 2009, and that he had not had any similar conditions in the time he had known him. It is to be noted that, in the section of the report required to be completed by the plaintiff, but clearly written by someone else, which he signed on 8 June 2010, the injury to his lower back is stated as being pre-existing.

139.     On the same day that the plaintiff first saw Dr Lee, he attended upon Mr Mark Ryan, Chiropractor. Apparently with Mr Ryan is help, the plaintiff provided him with a signed statement in which he stated –

“I spent Wednesday in bed unable to do anything. Today Thursday I saw Dr   Lee. He has ordered x-rays of back and neck. I am currently taking Panadol   for the pain. I find it difficult to concentrate and am unable to write anything   that anyone could read. My neck aches, back aches, head aches, feel sick all   the time, I have a sore chest. In fact I’m sore all over. I am unsteady on my feet   and feel very nervous about getting in a car again. I’m sure I’ll have   bruising where the seatbelt cut into my chest.”

I note that, notwithstanding the statement that he had spent Wednesday in bed unable to do anything, he had in fact attended the Queanbeyan Australian Football Club and played poker.

140.     Thereafter, the plaintiff was treated by Mr Ryan on 13 occasions between 21 May 2010 and 3 December 2010. On each occasion the treatment involved “spinal adjustment”.

141.     I note that, during this seven month period, the plaintiff ignored Dr Lee’s perceived need for x-rays of his neck and back to ascertain the nature of his injuries, but instead sought chiropractic treatment that had not been recommended by Dr Lee.

142.     On 21 to December 2010, the plaintiff consulted Dr Dhaimat, General Practitioner. He had never previously been treated by Dr Dhaimat. Thereafter, he was seen by Dr Dhaimat on a regular basis up to 1 May 2012 – a total of 40 consultations in the space of 17 months.

143.     In a report dated 26 August 2011, Dr Dhaimat reported that the plaintiff had presented himself on 21 December 2010 and reported being involved in a motor vehicle accident in which his vehicle “was shunted from behind (at speed) by a four-wheel-drive vehicle”. He had told Dr Dhaimat that he did not feel that he sustained any significant injury but that, thereafter, he had developed progressive right shoulder and para-cervical pain, low midline posterior cervical and lumbar pain. He also complained of pins and needles in his right arm and hand. Dr Dhaimat reported that, upon his examination of the plaintiff, he found that the range of movement in his cervical spine was restricted (particularly in extension and lateral flexion). There appeared to be a diminished reflex response and weakness in the upper limb muscles of his right arm. He also found restriction of movement in the lumbro sacral region of the spine, with a point of tenderness at the L3 level. Straight leg raising was restricted bi-laterally to approximately 60° but there was no sciatica and his distal pulses were palpable and synchronous. He noted that CT imaging performed on 23 December 2010, demonstrated a cervical spondylosis and potential cord compromise at C5/6 and C6/7 levels and a potential compromise of the exiting C4 nerve roots bilaterally. CT imaging at the lumbar–sacral level demonstrated mild spondylosis but no neural compromise was evident.

144.     Dr Dhaimat reported that, as at the date of his report, the plaintiff continued to complain of low back pain, neck ache, restrictions of neck movement, right anterior chest pain and right occipital neuralgia. He complained of difficulty standing, lifting objects heavier than 5 kgs and driving. He also described symptoms consistent with depression and anxiety.

145.     Dr Dhaimat reported that the only treatment the plaintiff had received was analgesia, in the form of Panadeine Forte, and chiropractic and physiotherapy treatment. He noted that he had been seen by Dr MacDowell, Neurosurgeon, in 2011 and had been offered an injection of local anaesthetic/steroid to the anatomical position of the right greater occipital nerve but he had declined this. He also noted that the plaintiff had received treatment from a clinical psychologist for management of his anxiety and depression.

171.     In answer to a question concerning the relationship of the plaintiffs claimed disabilities to the subject accident, Dr McNicol stated that, in his opinion, the plaintiff’s claimed disabilities from the accident were an exacerbation of long-standing pre-existing spondylosis in both the cervical and lumbar spines that existed prior to the motor vehicle accident. In his view, in all probability the cervical and lumbar spondylosis were associated with his motor vehicle accident in December 1993 and exacerbated by a further motor vehicle accident on 13 August 1997.

172.     In answer to a question as to the plaintiffs capacity to work, Dr McNicol noted that, in addition to the plaintiff’s physical limitations, he had a Major Depressive Disorder and Generalised Anxiety Disorder, and had had a cerebrovascular accident two years previously and had ceased work from that time. In his opinion, the plaintiff would not be returning to the workforce in any capacity. In his opinion, the plaintiff’s incapacity for work was, on the balance of probabilities, unrelated to the subject accident.

173.     In answer to a question seeking his opinion as to the contribution of the accident to the plaintiff’s condition at the time he examined him, Dr McNicol was of the opinion, with the benefit of the information that been provided to him by the defendants’ lawyers, that the contribution of the accident to his condition was reduced from the degree of contribution he had earlier expressed. He agreed with Dr Stubbs assessment that “What we are seeing in the present examination is a long-standing problem, and though it may be worse after the 18 May 2010 motor vehicle accident the attribution for aggravation should be very modest”. He went on to say that, had he been made aware of the past history of two motor vehicle accidents in 1993 and 1997 respectively and a work-related injury to 2001, he would have given considerable weight to this in assessing the contribution of the subject accident to the plaintiffs then complaints.

174.     Dr McNicol gave oral evidence by telephone.

175.     He was asked to express in lay terms the diagnoses contained in his first report. He said the diagnoses meant that there was extensive osteoarthritic changes within the cervical spine and the lumbar spine, where there had been multi-level osteoarthritic change; that in the right shoulder there might have been either a combination of inflammation about the shoulder and/or tendon tears; and that there was some form of nerve root compression or irritation of the right sided L5 nerve root arising from the lumbar spine.

176.     He confirmed that the statement in his first report that the plaintiff had denied neck, back or leg pain prior to the subject accident was made after he had specifically asked the plaintiff what problems he had had in the past involving illnesses, operations and injuries. To the best of his recollection he had also asked whether he had had any back pain before the accident. He emphasised that his use of the word “denied” signified that the plaintiff had been asked about these matters.

177.     Dr McNicol testified that, in his opinion, having seen all the material provided to him by the defendants’ lawyers and assuming that prior to his stroke the plaintiff had been working, notwithstanding the pre-existing condition of his cervical and lumbar spine, his ability to work would have been the same after he had recovered from the effects of his stroke as it had been before the stroke, maybe with some limitations, particularly in a purely managerial role.

178.     He confirmed that, having all the material finally made available to him, he maintained his opinion that whatever problems the plaintiff may have had prior to the accident would have been exacerbated by the accident.

179.     He testified that, when he stated in his third report that the plaintiff’s incapacity for work was on the balance of probabilities unrelated to the accident, it was in answer to a question which he understood to be asking whether the plaintiff’s incapacity for work was caused totally by the accident. He explained that in giving the answer he had been looking at the totality of the of the plaintiff, including his psychiatric condition which involved a Major Depressive Disorder and Generalised Anxiety Disorder, not just his physical problems which might have been attributed to the accident or  pre-existed the accident. He agreed that the exacerbation of the plaintiff’s pre-existing back and neck problems may have been partly a cause of his incapacity for work. However, in cross-examination he agreed that other factors, apart from the neck and back conditions, were the primary cause of his incapacity for work

180.     Dr McNicol stated that he could not say whether the sciatica, which developed after the subject accident, was related to the accident. He agreed that assuming the sciatica developed one and a half years after the motor vehicle accident, it was difficult to attribute it to the effects of the accident and that, on the balance of probabilities, it was unrelated to the accident.

181.     In answer to questions from me, Dr McNicol testified that, although the plaintiffs pre-accident symptomology associated with his neck and lumbar spine was probably heightened or increased as a result of the accident, he could not say whether or not the symptomology ever returned to pre-accident levels at some time after the accident because there was no medical history available, in the form of a diagnostic examinations, and the like, of the plaintiffs spine obtained before the accident.

182.     Dr Stubbs also gave oral evidence by telephone.

183.     He confirmed his opinion that, when he examined the plaintiff in August 2011, 20% of the symptoms from which he was suffering at the time were attributable to the subject accident and that the majority of impairment arose from prior accidents. He also considered that the residual effects of the plaintiff’s stroke contributed 20% to impairment.

184.     He did not find it unbelievable that the plaintiff was working just prior to his stroke and he accepted that, after his stroke, he could have returned to work that was not particularly taxing, such as management work. Nor would he have found it unusual if the plaintiff had been working just prior to the subject accident. He said that most people with disability participate in the workforce, and that the work participation rate of people with moderate levels of disability, which are greater than the plaintiff’s, is about 85%.

185.     As to the contribution made by the exacerbation of his pre-existing conditions to his incapacity for work, Dr Stubbs reiterated that one-fifth of his impairment was due to the accident. In his opinion, notwithstanding the presence of four-fifths of impairment being due to other factors, he had been able to participate in the workforce prior to the accident. It was also his opinion, that the plaintiff’s total impairment would have been classified as mild, which would be quite consistent with him being able to return to the workforce. Put shortly, Dr Stubbs felt that the plaintiff could have worked at some stage after the subject accident and that, in particular, he could have returned to some sort of limited management duties which involved limited hours and no heavy lifting. However, these limitations were necessary primarily because of matters unrelated to anything that had occurred as a result of the subject accident.

General Damages

186.     The plaintiff’s Statement of Particulars alleges that as a result of the subject accident he suffered the following injuries –

·injury to the right shoulder;

·injury to the neck;

·injury to the upper back;

·injury to the lower back;

·injury to the chest; and

·shock.

His primary disabilities which are alleged to have resulted from these injuries are –

·ongoing pain in right shoulder;

·ongoing pain in the neck;

·ongoing pain in upper back;

·ongoing pain across chest, particularly on the right side;

·ongoing headaches occurring once every two days; and

·ongoing fatigue.

187.     None of the alleged injuries and alleged symptoms of pain and fatigue are matters easily identified by diagnostic procedures such as scans and x-rays. Medical practitioners seeking to either treat, or carry out forensic examinations of, a patient with such complaints are very dependent upon the patient’s subjective statements as the presence of pain and its severity. In this case, this is all the more so because of the paucity of medical records relating to the plaintiffs past injuries sustained in two motor vehicle accidents and a workplace accident, particularly scans and x-rays.

188.     It follows that, the in assessing whether to make an award to general damages and, if so, the amount to be awarded, the Court must look primarily to the plaintiff’s own evidence as to his experience of pain, its severity and its impact on his enjoyment of life. Similarly, the medical evidence upon which both parties rely is dependent for its weight upon the reliability of the subjective complaints made by the plaintiff.

189.     Accordingly, the Court must make an assessment as to the truthfulness and reliability of the plaintiff’s evidence. In this plaintiff’s case, I am satisfied that he was a generally unreliable witness who gave false or misleading evidence and who was prone to a great deal of exaggeration. Being conscious that this is a serious finding to make, I have set out in great detail the plaintiff’s oral evidence and the content of documents either recording statements previously made by him, authored by him or signed by him.

190.     In reaching this conclusion, I have had regard to the plaintiff’s demeanour in the witness box, a number of instances of evasion and prevarication, and instances of his failure to be entirely frank. In addition, I have had regard to his clear truthfulness when asked by Dr McNicol to recount any past accidents and injuries. I do not consider it necessary that I detail each instance of the matters to which I referred. In my view, they are readily discernible from my recounting of the plaintiff’s evidence above, and particularly his cross examination, and the history of his attendances on medical practitioners. Counsel for the defendants detailed many of the matters submitted as adversely affecting the plaintiff’s credibility and submissions. I consider that all the criticisms made are valid.

191.     Accordingly, unless an aspect of the plaintiff’s evidence is corroborated by other credit worthy evidence, I do not accept it.

192.     However, that does not bring to an end the assessment of general damages. There is medical evidence that is relevant to and, to the extent that is not entirely reliant upon the plaintiff’s subjective complaints of pain, is reliable. There is also evidence from lay witnesses as to their observations of the plaintiff and the severity of the collision.

193.     In my opinion, the only reliable medical evidence presented is that of the two medico-legal experts, Dr Stubbs and Dr McNicol. I give no weight to the opinions expressed by treating doctors in reports and notes because the plaintiff failed to make them aware of his pre-existing injuries and complaints of pain and previous accidents.

194.     Both Dr Stubbs and Dr McNicol agreed that the plaintiff had multilevel cervical spondylosis, multilevel facet joint arthritis and lumbar spondylosis and probably some rotor cuff pathology in his right shoulder, all of which pre-existed the subject accident. They both agreed that he had probably suffered an aggravation of these pre-existing injuries as a result of the subject accident. They both agreed that the degree of aggravation was very modest. Dr Stubbs’s view was that, when he saw the plaintiff in August 2011, 20% of his symptoms were then attributable to the subject accident.

195.     The difficulty that confronted Dr Stubbs and Dr McNicol was to form an opinion as to whether the aggravation of the plaintiffs pre-existing symptomatic conditions was for a discrete period or was continuing. Dr McNicol said that he was unable to say whether or not the symptomology ever returned to pre-accident levels at some time after the accident because there was no available medical history of the plaintiff’s spine prior to the accident. Dr Stubbs said that whether the plaintiff’s symptoms were worse after the accident than before was hard to assess because there were no medical records to use as a base line, no knowledge of the plaintiff’s complaints and medical findings resulting from previous accidents and the plaintiff was not a good historian.

196.     My task is to do the best I am able with the evidence before me, unsatisfactory though it is. Bearing in mind that the plaintiff bears the onus of proof and the unsatisfactory state of the evidence has resulted from his lack of cooperation, evasiveness, exaggeration and mendacity, I consider that, my assessment should be fair but not be ‘generous.

197.     There is no doubt that there was a collision. On the basis of Mr Rasakulasingham’s evidence, he being a witness whom I found to be credible and reliable, the collision occurred at a slow speed. The plaintiff’s vehicle was stationary and was struck at the rear by a small four-wheel-drive vehicle, travelling at about 10 km/h per hour. No doubt, even at that speed, the plaintiff’s vehicle would have been jolted forward suddenly resulting in a whiplash effect to the plaintiff. The plaintiff’s vehicle was ultimately written off by the first defendant’s insurer. However, this fact in itself is of little assistance in determining the severity of the collision. The insurer’s records detailed damage to the rear bumper bar and its cover and reinforcement, the rear right-hand tail lamp, the right-hand rear quarter panel, the boot lid, the boot lid garnish, the beaver panel and boot floor. This is inconsistent with Mr Al Hassan’s evidence that he had to pull bent wheel arches away from both rear wheels. There is no evidence as to the extent of the damage to these items but there is evidence that the vehicle’s market value was only $3,900.00. There is no evidence that the damage noted by the assessor could not have been caused in the collision described by Mr Rasakulasingham. There is also no evidence as to the cost of repairing the plaintiff’s vehicle but I infer that the insurer decided that it is would exceed the market value of the vehicle, rendering it uneconomic to repair. However, given the relatively low value of the vehicle and the notoriously high cost of repairing damaged motor vehicles, there is insufficient basis for me to infer that the collision was more severe than that described by Mr Rasakulasingham. I, of course, give no weight to the plaintiff’s exaggerated description of the collision, particularly his assertions as to speed and the presence of a bull bar on a large four-wheel drive vehicle.

198.     Although the plaintiff said that he started to feel pain immediately after the collision, which worsened later, and that on the day after the accident he had been unable to get out of bed – later modified to finding it very hard to get out of bed - in fact, on the evening of the accident, and on the following day, he attended a licensed club to play poker. He again attended a licensed club to play poker on the following days in May 2010 – 20, 23, 24, 28, 30 and 31. In June 2010, he attended licensed clubs to play poker every day of the month up to and including 29 June, save for eight days – a total of 21 days. I accept that a person suffering back and neck pain cannot be expected to sit at home and make no effort to get on with daily activities. I also accept that, as the plaintiff indicated to various medical practitioners over the years, he engaged in gambling to distract his mind. However, the fact that he was able to attend clubs as frequently as he did in the month and a half following the accident, when one would expect that the effects of the aggravation of his neck and back conditions would be at their most heightened level, leads me to conclude that the level of increased pain caused by the aggravation was “modest”, to use the description given by Dr Stubbs and Dr McNicol.

199.     In the first seven months following the accident, the plaintiff consulted a medical practitioner, Dr Lee, on three occasions. The first consultation was on 20 May 2010. On this occasion very little in the way of treatment was provided, other than a prescription for analgesia, but Dr Lee referred the plaintiff for x-rays. The second consultation was on 16 June 2010. On this occasion the plaintiff reported that he had failed to have the x-rays taken, as ordered by Dr Lee, because he had forgotten about it. No treatment was provided and x-rays were again ordered. The third consultation took place on 19 August 2010. The plaintiff’s purpose in seeing Dr Lee on this occasion was to have him complete a medical report form to support the plaintiff’s motor accident claim in this matter, which he appears to have been in the process of lodging with the second defendant. No treatment was provided by Dr Lee. Indeed, he recorded that he was unable to treat the plaintiff because he still had no x-rays results. I infer that this was because the plaintiff had again not attended to have x-rays taken, notwithstanding that he had taken the time and expended money to attend a chiropractor.

200.     The next occasion on which the plaintiff consulted a medical practitioner was not until 21 December 2010, when he saw Dr Dhaimat. This was after he had lodged his motor accident claim in this manner. Thereafter, there were numerous consultations with Dr Dhaimat and referrals for diagnostic procedures which the plaintiff attended.

201.     Although, after 21 December 2010, the plaintiff saw, and was treated by, Dr Dhaimat, mainly by analgesia, it is impossible to determine whether, by that stage, he was being treated for the aggravation of his pre-existing conditions or for their natural progression, the effects of aggravation having come to an end. Clearly, Dr Dhaimat thought he was treating injuries sustained in the accident because the plaintiff had failed to disclose to him his earlier accidents and symptoms associated with his neck, lower back and right shoulder. However, because the plaintiff had sought very little by way of medical treatment, apart from chiropractic treatment, for some seven months prior to his first consultation with Dr Dhaimat, I consider, on the balance of probabilities, that he did not feel the need to do so.

202.     In the period from 21 May 2010, three days after the accident, and 3 December 2010, the plaintiff received treatment from a chiropractor. The treatment had not been advised by a medical practitioner. Although the plaintiff asserted that the treatment was necessary as a result of the symptoms that had developed after the accident, I do not accept his evidence in that regard for reasons already disclosed. The records produced by the chiropractor, Mr Mark Ryan, are limited and do not disclose exactly what treatment was given and for what condition. The Schedule of Out-of -Pocket Expenses (part of Exhibit P1) describes the treatment as “adjustment” on the first occasion and then “spinal adjustment” on each subsequent occasion. Bearing in mind that the plaintiff bears the onus of proof, the evidence regarding chiropractic treatment does not satisfy me, on the balance of probabilities, that the treatment was given for any aggravation of the plaintiff’s pre-existing conditions. Given my view of the plaintiff’s creditworthiness, I am not prepared to infer that, because he chose to see a chiropractor, rather than obtain x-rays and return to see Dr Lee, he was seeking treatment for an aggravation of his pre-existing condition. I am all the more sceptical of the relevance of this treatment to aggravation by reason of the plaintiffs past history of moving from one treating practitioner to another and failing to provide truthful and complete histories.

203.     Counsel for the plaintiff submitted that, in assessing general damages, weight should be given to the observations of the plaintiff made by the lay witnesses. Ms Schrader, Mr Al Hassan, Mr Kazanc Senior and Mr Kazanc Junior all gave some evidence as to the comparison in the plaintiff’s presentation before and after the accident. In each case it was quite vague. It amounted mostly to their recounting of the plaintiffs complaints of pain and their observations as to difficulties he seemed to be having in his movements following the accident. In Ms Schrader’s case, there was the additional evidence she gave as to how she found the plaintiff physically and emotionally when she first saw him a week or two after the accident. The evidence of these witnesses is consistent with an aggravation of the plaintiff’s pre-existing symptomatic conditions, but they do not support a finding that the aggravation continued beyond a closed a period

204.     I am satisfied that the plaintiff suffered an aggravation of pre-existing symptomatic conditions of his neck, back and right shoulder. On the evidence before me, I am satisfied that the aggravation lasted only for a closed period. That period has been made impossible to determine due to the plaintiff’s untruthfulness regarding his pre-existing symptoms. Doing the best I am able, I find that the period of aggravation was probably for a period of no more than about 18 months. I assess general damages in the sum of $15,000 which is all in respect of the past. I allow interest on that sum of $3,275.00 rounded up.

Past and Future Economic Loss

205.     The plaintiff’s claim for past economic loss is based on his alleged employment as the Manager of the Turkish Pide House in Jamison, earning $979 nett per week. The claim is calculated at that weekly rate up to the date of the hearing.

206.     The evidence that he was employed in the position was given by him and Mr Kazanc Junior, and was purported to be supported by the document signed by Mr Kazanc Senior (Exhibit P2). As I have indicated above, I do not accept the plaintiff’s evidence where it is not corroborated by other reliable evidence. In respect of the issue of his employment, he is apparently corroborated by the evidence of Mr Kazanc Junior. However, his evidence is inconsistent with that of Mr Kazanc Senior, who testified that, although he and the plaintiff had discussed the prospect of the plaintiff working at the restaurant, nothing had been finalised before the plaintiff was involved in the accident and, thereafter, he had not returned to the restaurant seeking work. He was very firm in saying that there had been no discussion about how much the plaintiff would be paid if he did commence employment at the restaurant. In view of the fact that all discussions concerning the plaintiff’s possible employment took place between he and Mr Kazanc Senior, I prefer the evidence of Mr Kazanc Senior on this aspect to that of the son, who was first asked to recall the relevant events the day before he gave evidence, four years after the events, and whose evidence I find not to be creditworthy.

207.     There is other evidence that brings into question whether the plaintiff was indeed employed as he alleges. First, he was not paid for the day and a half he allegedly worked. Second, although he claims to be employed as the Manager of the restaurant, on the day of the accident he was driving in Wanniassa in the late afternoon or early evening in search of salami or pastrami, at a time when one would expect the manager of a restaurant to be doing what was necessary to ensure that the restaurant would open and operate properly that evening, all the more so when the other manager, Mr Kazanc Junior, was not going to be working that night. Third, there is the highly suspicious circumstances in which the plaintiff obtained the signature of Mr Kazanc Senior to two documents, relating to his alleged employment, stating matters with which to Mr Kazanc Senior disagreed.

208.     I am not satisfied, on the balance of probabilities, that the plaintiff was employed to work at the Turkish Pide House in Jamison on the day of the accident, nor that it was ever in prospect that he would earn $1,250.00 per week.

209.     Although my finding in relation to the alleged job at the Turkish Pide House precludes an assessment of past economic loss based on the plaintiff’s inability to continue in that job, I am still required to make an assessment based on his loss of capacity to earn income due to the aggravation of his pre-existing symptomatic injuries. In doing this, I have had regard to the Centrelink Job Capacity Assessment Report prepared in February 2010, three months prior to the accident, and on which the decision to grant the plaintiff a disability benefit was based. The report found the plaintiff had a residual work capacity of zero to seven hours per week. I have also had regard to Dr Stubbs’ assessment in August 2011 that the plaintiff’s incapacity for work was largely attributable to his pre-existing conditions, but that one fifth could be attributable to the aggravation by the subject accident.

210.     Bearing in mind that at the time of the accident the plaintiff was receiving a disability benefit, was assessed as having a residual capacity for work of up to seven hours a week and that there is no evidence as to what employment might have been available to him for such a limited period each week, I consider it appropriate to make an award in the nature of a buffer for his lost chance of obtaining some work. I allow $3,500.00, together with interest in the sum of $1,720.00.

211.     In view of my finding that the aggravation was for a closed period, I make no award for future economic loss.

Out-of-Pocket Expenses

212.     The plaintiff claims $5,903.30 for past out-of-pocket expenses. The parties have agreed that the amount claimed was expended by, or behalf of, the plaintiff. However, it is not agreed that all the items claimed relate to the need for treatment as result of the aggravation of the plaintiff’s pre-existing conditions. I have made my assessment of what should be allowed on the basis of my finding of a closed period of aggravation. I have not made any allowance for the chiropractic treatment provided by Mr Ryan because there is no evidence for what condition this treatment was provided. I allow $2000.00.

213.     In view of my finding of a closed period of aggravation, I make no allowance for future out-of-pocket expenses.

Loss of Capacity to Perform Domestic Services

214.     The plaintiff claims for his loss of capacity to perform domestic activities for himself as a result of his alleged injuries sustained in the accident. The claim for the past is for one hour per day for five days a week, from the date of the accident up to the date of the hearing, calculated $23.00 per hour. A claim for the future is also made, calculated on the same basis, up to the age of 65. He sought to reflect his loss of capacity by the fact that after the accident he needed, and was provided, the services of Ms Schrader to assist him with aspects of daily living which he could not perform for himself.

215.     The plaintiff claimed, in his evidence, that between two weeks and four months (he was vague as to the exact period) after the accident he had received the assistance of Ms Schrader with dressing, showering, shaving, cooking, washing his clothes and ensuring that he took his medication. However, he was vague as to how much time Ms Schrader spent each day providing these services. The impression created by his evidence was that Ms Schrader provided the services in his home.

216.     When Ms Schrader, whom I considered to be a thruthful and reliable witness, gave evidence, it became clear that any assistance she gave the plaintiff was given in her own home during one of the plaintiffs frequent, almost daily, visits. Rather than assisting in showering, she simply insisted that he shower himself and sometimes, after he had showered, she would shave his head and help him put on his shirt. She would make provision for him in the meals she was cooking for the family. Occasionally, she would massage the right side of his body to help relieve pain. Occasionally, she washed his clothes. She had to remind him frequently to take his medication because he was forgetful. She estimated that she would spend about 40 minutes helping the plaintiff in these ways when he came to her home. On occasions, she would accompany him, at his request, when he went to the chemist or consulted a doctor. However, she clearly did not accompany him on these occasions as a result of any incapacity on his part to attend on his own.

217.     Bearing in mind my finding of a closed period of aggravation and my inability to determine the end of that period or when Ms Schrader commenced to provide assistance to the plaintiff, I consider a reasonable amount to allow for past loss of capacity to perform domestic activities is $3500.00 I allow interest on that sum of $1,885.00. I make no allowance for the future.

Judgment

218.     Judgment will be entered for the plaintiff in the sum of $30,880.00, made up a follows –

General Damages  $15,000.00
                   Interest on General Damages               $  3,275.00
                   Past economic loss  $  3,500.00
                   Interest on past economic loss   $  1,720.00
                   Past Out-of-Pocket expenses              $  2,000.00
                   Past Griffiths v Kerkemeyer                 $  3,500.00
                   Interest on past G v K  $  1,885.00
  Total   $30,880.00

219.     I shall reserve the question of costs and grant the parties liberty to restore the matter on seven days notice.

P.G. Dingwall
Magistrate