Busch v Parker & Anor [2022] QSC 211

SUPREME COURT OF QUEENSLAND CITATION: Busch v Parker & Anor [2022] QSC 211 PARTIES: Stephen Robert Busch (Plaintiff) v Jason Edward Parker (First Defendant) AAI Limited Trading as Suncorp Insurance (Second Defendant) FILE NO/S: SCR No 31 of 2019 DIVISION: Trial Division PROCEEDING: Claim ORIGINATING COURT: Supreme Court of Queensland at Cairns DELIVERED ON: 30 September 2022. DELIVERED AT: Townsville HEARING DATES: 31 January, 1, 2, 3 February, 14 April 2022 JUDGE: North J ORDER: 1. Judgment for the plaintiff against the second defendant for $5,000. 2. Order that the parties exchange and file submissions with respect to costs within 28 days. CATCHWORDS: PERSONAL INJURY – MOTOR VEHICLE ACCIDENT – WHIPLASH INJURY – ASSESSMENT OF DAMAGES – WHETHER THE PLAINTIFF HAS PROVEN INJURY AND DAMAGE COUNSEL: Self Represented for the Plaintiff Mr Glen for the First and Second Defendants SOLICITORS: Self Represented for the Plaintiff Jensen McConaghy Lawyers for the First and Second Defendants Introduction [1] The plaintiff was the driver of a motor vehicle involved in an accident with another vehicle on 10 March 2014. He was then 48 years of age and at the time of the trial was 56 years of age (d.o.b. 23/08/1965). -- 1 of 17 -- 2 [2] He claims damages for injuries he alleges were sustained in the motor vehicle accident. The defendants have admitted liability so consequently the issues are the nature and extent of a neck or cervical spine injury (if any) and the extent to which the neck or cervical spine injury was and remains productive of pain and suffering and of economic loss. 1 [3] The issues joined between the parties are identified in the Statement of Claim filed on 22 January 2019 as amended by a document prepared by Mr Busch, who acts for himself, and described as a “Statement of Claim”. At the outset of the trial I gave Mr Busch leave to read and file and rely upon the amendment to the pleadings.2 For the defendants they relied upon the amended defence filed on 14 June 2021 which appears to comprehensively identify the issues relied upon the defendants in the defence of the claim. [4] Strictly speaking the amended defence pleaded to the original Statement of Claim and Mr Glen of counsel who appeared for the defendants was content to rely upon the detail of the amended defence. No issue was taken with this course by Mr Busch. The trial proceeded on the basis that the relevant pleadings therefore were the Statement of Claim, as amended by MFI 3 and the amended defence. [5] I should mention that Mr Busch sought to rely upon a document as a response to the amended defence (see MFI 4) and that it take effect somewhat like a reply. For the reasons I gave I refused leave to rely upon the document. No issue was taken by the defendants prejudicial to Mr Busch’s interests or claims made by Mr Busch because of the absence of a reply. [6] It may be noted that in some of the documents and medical reports tendered into evidence, there is reference to lumbar disc pathology and or degeneration,3 but the pleadings do not advance a claim for a lumbar spinal injury or consequent upon such an injury and Mr Busch did not advance any claim of that nature. It will also be noted that Mr Busch’s claim as amended by MFI 3 does not advance a claim for damages for gratuitous care. [7] I will be referring to the detail of the medical evidence later. However it is relevant at the outset to make reference to some of the expert evidence and other evidence tendered before me and how the trial was conducted. [8] Two large bundles of documents were tendered as a joint tender relied upon by both Mr Busch and the defendants.4 The contents of Exhibit 1, medical records, included the documents relevant to treatment sought or given to Mr Busch at different times. It also includes records of some general practitioners from whom Mr Busch sought treatment from time to time after the accident. Exhibit 2, the employment records, included documents relevant to Mr Busch’s earnings before and subsequent to the motor vehicle accident, but also containing documents relevant to post accident employment and applications for employment made by Mr Busch and assessments made by a range of health professionals on behalf of prospective employers post-accident. It will also be noted that Mr Busch tendered into evidence reports from a number of doctors. They included a report from Dr O’Toole (Exhibit 5) and a report by Dr Jonathan a neurosurgeon (Exhibit 9). Strictly speaking Drs O’Toole and Jonathan were called in the defendant’s 1 Paragraph [3] of the Amended Defence filed 14 June 2021 puts into issue whether the plaintiff sustained any injury and denies that, if the plaintiff sustained any injury, that he suffered the consequences he alleged. 2 A copy of which is MFI 3. 3 See for example Exh 4 the report by Dr. G. Winter 15/09/2016. 4 See for example T1-13 and T1-14. -- 2 of 17 -- 3 case notwithstanding that Mr Busch tendered their reports. Mr Busch called Dr Pentis, an orthopaedic surgeon, to give evidence and tendered two reports from Dr Pentis (Exhibits 12 and 13). [9] Mr Busch’s intention in tendering the reports of Drs O’Toole and Jonathan remains, in my view somewhat obscure. It must not be overlooked that Mr Busch is a layman with no legal training or qualifications or relevant experience. For the purposes of my reasons it is appropriate to proceed on the basis that in substance Mr Busch as plaintiff relied on the opinions of Dr Pentis and the defendants relied upon the opinions of Drs O’Toole and Jonathan. In making this observation I’ve not overlooked that there is a large body of medical and medico legal evidence details of which will be mentioned below that bear upon the issue of whose opinion should be accepted. [10] In my reasons I propose to proceed by outlining the evidence called and given by the plaintiff including his evidence including that given in cross examination and then canvass the medical evidence including the experts I’ve referred to, the medical records, the employment records including relevant witnesses and other evidence (including the witnesses called by the defendants) before turning to my discussion and findings and assessment of damages. The evidence in chief of the plaintiff [11] The plaintiff gave evidence reading from a prepared statement. No objection was taken to this course. The statement was not called for by Mr Glen and was not tendered into evidence. It is convenient to quote from the transcript what the plaintiff said excising from the transcript details for objections taken and matters objected to. [12] The plaintiff’s evidence began:5 “ My name is Stephen Robert Busch. I’ll read out this witness statement. On the 10th of March 2014, I was involved in a MVA in Mount Isa. As I’ve stated before, it was around 3 pm, I was driving a 1995 small Nissan Skyline back to my workshop. I was completely stationary at the intersection of Fourth Avenue and 23 rd Avenue awaiting to turn right with my right indicator on awaiting oncoming traffic when I was hit behind from another vehicle. My vehicle was then pushed some distance down the road before it came to a stop. As I stated, I alighted from the vehicle and felt this burning pain in my neck. I also observed that my vehicle had been a tyre service truck. This vehicle had tyres and equipment on the back of it. I spoke to the drive of the tyre service truck. He identified himself as Jason Edward Parker, and I must say for the record he was very apologetic which was good. We contacted the Mount Isa Police to request their attendance at the accident site. After this I then removed the vehicle from the carriageway. It – I only had to drive it a little way to get it off the roadside. The Queensland Ambulance Service did not attend the scnee. The Queensland Fire and Rescue Service did not attend the scene. Two Queensland Police officers attended the scene some 40 minutes after the collision. The police questioned myself and Jason Edward Parker and took statements. 5 T1-21 commencing at l34. -- 3 of 17 -- 4 …” “ … I did not receive medical attention that day. My vehicle was then towed away. The vehicle was later on assessed and written off by the insurance assessor. As I stated, after the vehicle was towed away I went back to work to complete our tasks for this shut down at that stage. I felt that I had to attend work as management responsibilities and to oversee this task was completed as it was very important. So I was supervising this task as well. I had had ongoing aches and pains in my neck and severe headaches at time ever since this accident. I have been alleviating this pain with a lot of the over-the-counter drugs and therapeutic massages, hot showers, pool exercises in order to keep functioning. I continued this treatment for work and everyday life until I could no longer tolerate this in early in 2019 where I sought medical treatment for a number of issues before and after that accident, all of which have healed and do not pose a problem at this point in time. One of these issues was a piece of crayfish shell that was imbedded in my palm on my left hand in which [indistinct] placed me in hospital for a week in the Townsville Hospital. At this point, you know, I was going through a very tumultuous period in my life due to a number of factors, including bankruptcy, divorce proceedings, and being away from the children, and then the process of moving houses from Mount Isa to Townsville. So it was a hard period. I visited more legal representatives for a divorce and mentioned my motor vehicle accident back in March two thousand and – back in – the motor vehicle accident back in March 2014. The very next day I went to North Queensland X- Rays for a CT scan. Since 2014, I have visited nine assessing doctors, seven of which were by my two legal representatives, and I visited two at the request of Jensen McConaghy Lawyers in 2021. …” “ … As we proceed, I managed – like I said, I managed with over-the- counter drugs, massages, and hot showers and all that, pool exercises. My first legal representatives were advising me to continue to receive massages. I have continuously [indistinct] since I was 16 years old and never, ever thought I would end up a welfare recipient. I stopped playing touch football in 2017 due to jarring and the effects after the game. So I decided to stop altogether. I’ve also ceased my love of spearfishing, as well due to after effects of it all. I ceased full employment in two thousand and – in June 2018, when I was made redundant, and that continued – then I continued part-time work till March 2019. I worked at the gas plant in Wheatstone, the Wheatstone gas plant, and in that – you know, there’s people – there’s about 7,000 people there, so when the project was coming to an end, they made, you know, everyone redundant, and some stayed on as a maintenance person, but others were made redundant. …” “ … Well my current situation is critical, as I’m in constant pain and aching. I don’t get a break; it’s day in and day out. I’ve had – I’ve got tingles in my fingers and toes as a result of this, and this has been ongoing for – I would probably say a year and a half now. I’m currently -- 4 of 17 -- 5 awaiting a consultation from Dr Guazzo or Dr Anderson. That’s on in April the 7th ; I’ve been contacted. That’s all your Honour.” [13] After a brief exchange I invited Mr Busch to say anything further that he wanted to add to his evidence and he added:6 “ In 2006, I was involved in a – I was a passenger in a rear-end motor vehicle accident. The police arrived within minutes. I was not injured in this accident. There’s no reports. I was assaulted in 2009 by a group of people. There’s a report and there’s a CT scan on that. This scan – you’ll – you can read the report and make your judgment. In response to this – my wife, due to this injury, has been greatly affected physically, mentally, and financially, obviously. In construction work, I was earning over 200K per year. Now I’m earning $1200 per fortnight. That’s a big difference. All I seek is a fair compensation that will cover me for the losses and earnings until my retirement at 67. This will then provide me with the financial security in my retirement. Thank you, your Honour.” Evidence from the cross-examination of the plaintiff and the documentary records in Exhibits 1 and 2 [14] The plaintiff was questioned extensively by reference to the documents in records found in the agreed medical records (Exhibit 1) and the agreed financial and employment records (Exhibit 2). Further he was questioned about his employment history, the history of his post-accident medical treatment and his recreational past-times. [15] He admitted to a history of employment performing physical tasks including as a boiler maker and as a scaffolder. He admitted to history of working from 1985 to 2006 in a range of heavy tasks.7 [16] In the years preceding the motor vehicle accident in March 2014 he worked as a scaffolder or as a scaffolding supervisor. He played rugby league for some 27 years from about age 9 to 36 including representative football. In 2006 he was involved in a motor vehicle accident, though he denied sustaining an injury to his neck.8 In 2009 he was assaulted by six persons and sustained a range of injuries.9 The medical records (Exhibit 1) contain records of treatment or investigations for cervical spine on 30 and 30 July 2009 as a consequence of this assault. Between 2012 and February 2014 the plaintiff consulted doctors for a range of unrelated medical conditions. The plaintiff did not seek medical history for any injury on the day of or days following the subject motor vehicle accident on 10 March 2014. However, the records show that between 10 April 2014 and 14 October 2014 he had a number of consultations with doctors concerning unrelated conditions. His first complaint (to a “health worker”) of neck pain from the motor vehicle accident was on 7 October 2014. The plaintiff did not miss any work in the days or weeks following the motor vehicle accident, he continued his normal duties. The plaintiff continued in employment with his employer in Mount Isa for several weeks into May 2014 following the motor vehicle accident. His employment ceased and for personal 6 T1-25 l38. 7 T1-28. 8 T1-31. 9 T1-32. -- 5 of 17 -- 6 family reasons he decided to move to Townsville, having worked long hours in a busy job for about 8 years between 2006 and 2014. In order to see his children, he did not seek employment until about mid 2015.10 On 22 October 2014, he saw Dr Prabhaharan about a solicitors note. It is recorded that he complained of mild neck pain. The note records he had a good range of movement (ROM) and no tenderness in the cervical (C) spine.11 He continued to engage in recreational past times including touch football for an excess of three years post motor vehicle accident. He acknowledged that it was a physically demanding activity.12 On 13 March 2017 the plaintiff attended a GP complaining of knee pain having played six games of touch football on the weekend. There is no record of a complaint of neck pain.13 Return to work 2015 - 2019 [17] The plaintiff returned to employment. He gave evidence of working for six or seven weeks welding gates in late 2014.14 He sought work through labour hire companies.15 He worked as a maintenance boiler maker from 9 June 2015 to 28 August 2015. He worked at a zinc refinery for eight hours per day for two and a half months doing maintenance welding.16 Payslips demonstrate payments totalling $27,180 from September 2015 to December 2015. The plaintiff said that this was casual employment. He described using a wire brush to clean turbines. He worked up to 10 hours per day.17 The employment ceased when the project was completed. He worked as a scaffolder in about December 2015 doing yard work sorting scaffolding. From January to March 2016 he worked as a rigger at a zinc refinery. The hours were full time and he finished because the work there came to an end.18 Between 25 October 2016 and 21 August 2017, the plaintiff was employed as a scaffold supervisor for Downer EDI. His average ordinary hours of work were 38 hours but his rostered hours were 48 hours. He was a salaried employee and his earnings per week were $2,364.42 gross. His supervisor was a Mr Paulsen who was the site supervisor.19 In cross examination it became apparent that the plaintiff worked sometimes up to 11 hours per day. His role involved both physical and administrative tasks. Mr Paulsen estimated that about 75% of the time the plaintiff was spent in the field,20 and that his duties include inspecting and climbing on the scaffolding.21 About 25% of the plaintiff’s time was spent in administration. Mr Paulsen gave the following evidence concerning the plaintiff’s employment and capacities:22 “Were you there throughout the whole of Mr Busch’s employment?---Yes, I was. Did you ever observe Mr Busch to be in any pain or more specifically, neck pain, throughout the time you were there on site with him?---No. I didn’t observe anything. 10 T1-44; T1-22; T1-39; T1-42-43. 11 Exh 2 p4. 12 T1-60-61. 13 Exh 1 at p384. 14 T1-44 to T1-45. 15 T1-45. 16 T1-46. 17 T1-46 – T1-51. 18 T1-51 – T1-54. 19 See Mr Paulsen’s evidence at T3-10ff. 20 T3-12. 21 T3-12. 22 T3-14 l4-20. -- 6 of 17 -- 7 Did you ever observe any impairment of physical function on his part at any time? No. Actually, one of our conversations quite frequently was his level of fitness compared to mine, so – so no. All right. Were you aware of him taking any leave for any physical complaint?---No. Stephen very rarely took any leave at all. Did Mr Busch ever complain to you about any neck pain?---No. Did he ever tell you about having been involved in a motor vehicle accident, or getting a neck injury in a motor vehicle accident?---No, he didn’t.” Mr Andrew Meaney was called by the defendants. From November 2016 to June 2019 he was employed by Downer EDI working at the LNG plant in Darwin. He was the regional manager. Mr Paulsen was the contract co-ordinator or site superintendent and the plaintiff was employed as the scaffolding supervisor.23 He was regularly onsite and observed the plaintiff. His evidence was that at no time did he observe the plaintiff to suffer any neck symptomology or apparent neck pain. Nor did he observe him to appear to suffer any functional incapacity at any time.24 When the plaintiff resigned from his employment on 21 August 2017, he gave a reason that he had decided to seek employment opportunities elsewhere. He obtained employment as a scaffolder for Cape Australia Onshore between 6 September 2017 and 22 June 2018 (the Wheatstone Project). The plaintiff was employed as a scaffold manager. His supervisor Mr Lawther was the construction manager.25 Mr Lawther gave evidence of the duties performed by the plaintiff. It was heavy and demanding work. Mr Lawther described the work as one of the most rigorous jobs on the project.26 The plaintiff gained employment as an advanced scaffolder working for MAS Australasia from 29 August 2018 to 5 September 2018 and from 13 November 2018 to 10 February 2019. He worked 11 to 12 hours a day as a scaffolder and described it as very hard days.27 In the week ending 2 September 2018 he worked 67.82 hours. In the week ending 25 November 2018 he worked 75.5 hours and, in the week ending 3 February 2019 he worked 63.25 hours. Attendance upon general practitioners [18] Evidence was given by six general practitioners who the plaintiff attended upon over a period of approximately seven and a half months between 10 March 2014 and 22 October 2014.28 On each occasion the plaintiff attended seeking treatment for matters unrelated to any neck or cervical spine injury. In each case the doctors indicated that if the plaintiff had mentioned a pain or disability with respect to his neck, they would have noted it in the records of the attendance. There is no record in the notes made by any of the doctors of any such complaint. In addition, a general practitioner Dr Prabhaharan gave evidence.29 He gave evidence that the plaintiff attended upon him on 22 October 2014 in order to obtain completion of a note from his solicitors regarding a proposed claim for the neck 23 See T3-2ff. 24 T3-5. 25 T3-17. 26 T3-21 l5. 27 T1-96 l31 – T1-98 l16. 28 Dr Yoloye, see T2-73 – T2-74; Dr Kazum, T2-75; Dr Eboh, T2-78-80; Dr Mansourzadeh, T2-82; Dr Rashaghan, T2-91 and Dr Ugwu, T3-36-37. 29 T2-84-87. -- 7 of 17 -- 8 injury. The doctor gave evidence that he examined the plaintiff, there was no significant tenderness, and he had a good range of movement in his neck. Admissions [19] On the occasion of the plaintiff’s pre-placement medical assessments when he applied for employment with Downer EDI, and later for the Wheatstone Project, the plaintiff gave answers to questions inconsistent with suffering from a neck injury. [20] In the case of the application for employment with Downer EDI, he gave answers in a written questionnaire signed by him that: 30 • He was not currently being treated for any medical condition. • He had not had time off work for the last two years for an illness or injury. • There was no condition which may impact his ability to safely perform the duties of his job. • He did not have any difficulty with turning his head rapidly. • He had made a full recovery from a whiplash injury in 2014. • He had no difficulty with standing, sitting, or climbing stairs or ladders. On the occasion of his pre-placement assessment for the Wheatstone Project on 25 August 2017 the plaintiff indicated that: • he had never had a motor vehicle accident which caused an injury. • he did not currently have nor had he a neck injury or whiplash. • he had no difficulty or disability with respect to loss of full neck function.31 Full range of motion testing [21] On different occasions between 2014 and 2018, when examined by doctors or health professionals the plaintiff demonstrated a full and unrestricted range of movement of his neck.32 I have already mentioned the evidence of Dr Prabhaharan who examined the plaintiff on 22 October 2014.33 Dr Palla carried out a pre-employment medical assessment of the plaintiff on 24 October 2016 which included an assessment of the range of motion of his cervical spine. He recorded the range of movement to be normal in the cervical spine.34 Dr Palla’s findings were recorded in a document on 24 October 2016.35 On the same day 24 October 2016, Ms Nobbs, an exercise physiologist, undertook a musculoskeletal assessment of the plaintiff. Her findings were recorded.36 She assessed 30 See Exh 2 at p126-127. 31 See Exh 2 at p224-232. See further the evidence of Miss Farrelly at T3 – 47-48. 32 22 October 2014; 24 October 2016; 25 October 2017 and 24 August 2018. 33 See T2 – 84-87. 34 See T3 – 25-26. 35 Exh 2 at p129. 36 Exh 2 p130-132. -- 8 of 17 -- 9 the plaintiff’s capacity to undertake a range of physical activities including planking, push-ups, repeated lifting and an overhead press. She recorded the plaintiff’s range of motion and lifting capacities as excellent. On 25 August 2017 the plaintiff underwent an examination as part of his application for employment on the Wheatstone Project. Ms Farrelly, an enrolled nurse, assessed the plaintiff’s cervical spine range of motion as normal. On the same day Mr Tan, a physiotherapist, undertook an examination and evaluation.37 Mr Tan did not note or record any impairment. He concluded that the plaintiff was fit for work as a scaffolder.38 On 24 August 2018 the plaintiff underwent a pre-employment medical examination for BHP Billiton. He was assessed as having a normal range of motion in his cervical spine.39 Expert medical evidence [22] Three doctors were called to give expert opinion evidence, one by the plaintiff and two by the defendants. In addition, the plaintiff tendered into evidence a report from the Sports & Exercise Physician, Dr Greg Winter, dated 15 September 2016.40 Dr Winter’s report was written following an assessment conducted on 8 September 2016. Dr Winter had available the findings of CT scans taken on 28 October 2014 (and also x-rays). As a consequence of Dr Winter’s examination of the plaintiff and his consideration of x-rays and the CT scans he said in his report:41 “In summary, Mr Busch has suffered two rear end motor vehicle accidents. The first in 2009 and a second in 2014. He has also undertaken contact sport for some 27 years and continues to play touch football. He has worked in a manual trade as a boiler maker. The findings on the CT scans of the 28/10/2014 are consistent with pre-existing degenerative injuries. CT’s do not allow interpretation of whether the disc injuries are recent or pre-existing. The presence of calcification and posterior osteophytes at the areas of disc bulge or calcification of the annulus would be interpreted as a pre-existing condition rather than recent trauma. As stated in Mr Busch’s radiology reports, there is a significant pre-existing levels of degeneration within both the cervical and lumber spine. It would be very difficult to describe the level of degeneration shown on the CT of 2014 as directly related to the motor vehicle accident of March 2014. Certainly Mr Busch has experienced an exaccerbation of a pre- existing condition as a result of the most recent MVA. Mr Busch lack of history of immediate post accident assessment & treatment would suggest medically that the exaccerbation was of a minor nature. His current symptoms would be interpreted as progression of his pre-existing degenerative conditions.” (Emphasis added) 37 See T3-53 and Ex 2 at p245-254. 38 T3 – 58-59. 39 See Exh 2 at p267-268. 40 See Exh 4. 41 Exh 4. -- 9 of 17 -- 10 [23] In his case the plaintiff called evidence from an orthopaedic surgeon Dr Pentis.42 Two reports were put into evidence, the first dated 5 May 201743 and the second dated 10 March 2021.44 [24] In his report of 10 March 202145 Dr Pentis wrote the following concerning the cervical injury and disability: “● Mr Busch has sustained in the stated accident an injury to his cervical spine. It has affected the musculature of the posterior cervical region. • He does have a history of having injured his neck in an assault in 2009 but this showed no gross degenerative problems or fractures at the time. • In the stated motor vehicle accident under question, he has had a severe enough injury to cause problems from the history given of the accident itself in the cervical region. This has persisted and has been investigated and has continued to cause him problems. … • The major problem is that he is well motivated in carrying out his work activities. He was essentially trying to continue in the work and even though it was strenuous work, he did limit it to an extent with supervisory activities as well. He continued with his sporting recreational activities of swimming and snorkeling but did have problems and has had to cease these, as well as any football activities. He is basically stable at that stage but will continue to degenerate from now on, as is the normal history of these injuries. IMPAIRMENT • With reference to the AMA Guides, Fifth Edition, Mr Busch has reached maximum medical improvement and has sustained a degree of permanent impairment. He is likely to deteriorate moving forward, but not to the extent that it would affect his impairment within the next 12 months. Cervical Spine • With respect to impairment, it has affected the cervical region where Mr Busch has some degenerative changes evident and these would be assessed as a 1% Whole Person Impairment pre-existing. • Post the accident, Mr Busch’s main problem is in the cervical region where he continues to still have pain, a restriction in the range of movement and difficulties especially when he carries out work activities or heavy activities, especially lifting. Driving can also aggravate it. He does show an asymmetrical, guarded range of 42 See T2-43ff. 43 Exh 12. 44 Exh 13. 45 Exh 13. -- 10 of 17 -- 11 movement with no major clinical signs of neurological entrapment when examined but he does complain of it as a symptom. • Using Chapter 15, table 15-5, page 392 Mr Busch would be assessed under AMA 5 th Edition Guides to the Evaluation of Permanent Impairment as a Diagnosis Related Estimate (DRE) Category II, allowing a 5% to 8% Whole Person Impairment with respect to the cervical spine. I would place him at 7% Whole Person Impairment. • Taking into consideration the 1% Whole Person Impairment due to degeneration which has occurred with time, this would make him a 6% Whole Person Impairment at this stage in relation to the cervical spine injury occurring from the subject incident.” [25] In the defendant’s case Dr Jonathan, a neurosurgeon46 was called and a report dated 8 December 2021,47 and a memorandum re conference dated 3 February 202248 were tendered into evidence. [26] In the note of his conference with the defendant’s legal representatives,49 Dr Jonathan said: “● Having reviewed the Plaintiff’s reports and images, it is his view that the Plaintiff would be in the same position in terms of his degenerative change had he not been involved in the motor vehicle accident. Put simply, his degenerative progression would have followed the same trajectory; … • In his view, the Plaintiff sustained a neck strain in the motor vehicle accident which would have resolved within the weeks/months following the accident and would not have gone on for years.” [27] The second expert witness called for the defendant was Dr O’Toole, an occupational physician.50 Through Dr O’Toole, a report dated 22 July 2022 was tendered,51 and a memorandum re conference dated 25 January 2022 was tendered.52 [28] In his memo of conference with the defendants’ legal representatives on 25 January 2022 Dr O’Toole said:53 “● Dr O’Toole said he would expect the most acute symptoms to be immediately following the motor vehicle accident and depending upon the severity of the injury for the symptoms to resolve or at least improve over time with treatment. 46 T4-2ff. 47 Exh 9. 48 Exh 15. 49 Exh 15. 50 T3-38ff. 51 Exh 5. 52 Exh 14. 53 Exh 14. -- 11 of 17 -- 12 • Dr O’Tooole was asked about the radiology and said that the changes shown on the CT scan taken October 2014 are long standing and are consistent with having been caused by the natural degenerative process. He considered the Plaintiff’s ongoing symptoms were attributable to and consistent with long standing degeneration of the cervical spine. … • The Plaintiff’s return to physical and scaffolding roles post incident was inconsistent with the Plaintiff having sustained any significant cervical spine injury. If the Plaintiff had a significant cervical spine injury he would not have been able to return to work as a scaffolder.” Discussion and findings The plaintiff [29] The plaintiff presented as an unimpressive witness. Frequently in cross examination he was evasive or unresponsive. He tended to play down the work duties and recreational activities inconsistent with his case that he suffered from a significant disability and injury. His admission in the pre-employment forms relevant to his employment with Downer EDI,54 and in his answers recorded by Ms Farrelly (whom I accept) when he applied for the position at Wheatstone on 25 August 2017,55 are in stark contrast to his evidence, and his case that he suffered from a significant disability in his neck.56 The conclusion I have reached is that the plaintiff was motivated to make these frank admissions inconsistent with his case because of a desire to obtain employment. Ultimately the conclusion I have reached is that the plaintiff was an unreliable witness and that I should not accept his evidence unless corroborated by cogent evidence. General practitioners & allied health professionals [30] I am persuaded that the evidence of the general practitioners who saw the plaintiff between March and October 2014 is reliable and accurate. Their evidence in each case was persuasive and did not in any case seem either inaccurate nor unreliable. If the plaintiff had complained of neck pain or symptoms to any one of them, the doctor would have recorded this revelation and looked into it. I also accept the evidence of the doctors and health professionals who physically examined or questioned the plaintiff on the various occasions between 22 October 2014 and 25 August 201757 who noted that the plaintiff presented either with a full range of movement or demonstrated no sign of an injury or restrictions. The evidence that the plaintiff demonstrated a full range58 of movement in his neck when examined on occasions is significant for the reasons given by Dr Jonathan.59 Unlike a restricted range of movement a full range cannot be feigned. 54 Exh 2 p126-127. 55 Exh 2 p224-232. 56 See paras [19] and [20] above. 57 I also accept the pre-employment document concurring a medical examination for BHP Billiton on 24 August 2018 which records a normal range of movement. 58 Sometimes referred to as a ‘normal range’. 59 Consider T4-3 l23-30. -- 12 of 17 -- 13 Work supervisors [31] Messrs Meaney, Paulsen and Lawther who supervised the plaintiff when working between October 2016 and June 2018 gave persuasive evidence that the plaintiff presented as a fit and healthy man capable of heavy and demanding work without apparent restriction. Neither Messrs Meaney, nor Paulsen were challenged in cross examination. I accept the evidence of those three men. Evidence of the expert witnesses [32] I’ve already mentioned that the report of Dr Winter60 was tendered by Mr Busch without objection by the defendant. In submissions the defendants relied upon the evidence of Doctors Jonathan and O’Toole. Mr Busch placed some reliance upon Dr Pentis. I prefer the evidence of Doctors Jonathan and O’Toole to that of Dr Pentis. My assessment of Dr Pentis was that he was inclined to accept too readily the account of and reliability of the plaintiff as a historian and consequently his opinions are based upon an acceptance of the plaintiff who I have found to be an unreliable historian.61 In contrast the opinions and evidence of Doctors Jonathan and O’Toole are based upon the evidence as I find it to be. Their opinions find support in the evidence of the various doctors and allied health professionals, the plaintiff’s employment history, the absence of contemporaneous complaints of pain or disability and the absence of any evidence of interference with the capacity to work. Further their evidence is consistent with the uncontroversial report of Dr Winter. Findings – causation and injury [33] The evidence of the witnesses whom I accept and the documents in Exhibits 1 and 2 persuade me that the plaintiff has grossly exaggerated the effects of the 2014 motor vehicle accident. The immediate return to work, the absence of persuasive of evidence of any interference with his life, recreations, daily routine and the absence of any apparent need for medical treatment persuade me that the motor vehicle accident’s effects were transient, minor and not productive of economic loss. The defendants, in their written closing submissions submit that he: “suffered a very minor soft tissue injury to the cervical spine in the subject motor vehicle accident which resolved completely in a relatively short period of time.”62 I accept that submission. It is consistent with the opinion evidence of Drs Jonathan and O’Toole I have quoted and also, in my view with the report of Dr Winter. [34] More particularly the findings I would make concerning the extent of injury and causation are: (1) The plaintiff sustained a very minor soft tissue injury to his cervical spine in the motor vehicle accident which resolved completely after a relatively short period of time. 60 Exh 4. 61 See for example Dr Pentis’s history and account in his report of 10 March 2021 (Exh 13) particularly at pages 4 and 5. 62 See Document 36, Court file index filed 2 March 2022, p10. -- 13 of 17 -- 14 (2) The plaintiff has suffered a natural progression of a degenerative condition in his cervical spine which pre-dated the motor vehicle accident. (3) The plaintiff’s absence from work in 2014 and up to June 2015 is not attributable to any injuries sustained in the motor vehicle accident, but to his mental health and other personal factors. (4) The plaintiff was fit for work between June 2015 and February 2019 and, to the extent he was able to find work, he was unimpeded by any injury sustained in or as a consequence of the motor vehicle accident. (5) The plaintiff’s capacity to work since February 2019 has not been adversely affected by any effects attributable to the subject motor vehicle accident. (6) The plaintiff’s current and future capacity to earn income is unaffected by any matter or circumstance attributable to the motor vehicle accident. (7) The plaintiff has not proven any loss of income or earning capacity past or future as a consequence of the effects of the motor vehicle accident. (8) The plaintiff has not proven the likelihood of any expense in the future attributable to the effects of the motor vehicle accident. (9) The plaintiff has not proven or identified past expense attributable to the motor vehicle accident, and any expense (if incurred) in relation to the very minor soft tissue injury is very modest. Assessment of damages [35] In his “Statement of Claims”63 the plaintiff advanced claims for damages as follows: Total Medical Expenses $4,005.15 Total Pharmaceutical expenses $2,420.00 The claim amount for past economic loss $154,117.00 Claim for future economic loss $1,655,220.00 Damages for personal injury and loss of the amenities of life $25,000.00 Interest on past economic loss (Unquantified) Loss of superannuation $204,991.00 Total claim amount $2,045,753.15 [36] In many respects the plaintiff’s claims are unsubstantiated by documentary evidence and his final written submissions64 provides precious little support for the calculations or 63 See MFI 3. 64 See document 37, Court file index filed 6 April 2022. -- 14 of 17 -- 15 analysis supporting such an assessment. More significantly the plaintiff’s claims are not substantiated by the evidence, nor supported by the findings I have made. [37] The defendant’s written submissions65 identified relevant dates and actuarial statistics as follows: • The plaintiff was born on 23 August 1965 and was at trial, 56 years of age; • The plaintiff was aged 48 years when injured on 10 March 2014. • It was, at the date of trial, approximately 7.9 years (411 weeks) since the date of the incident.66 • The plaintiff has a statistical life expectancy in the vicinity of 28 years (5% multiplier 797). [38] The defendant’s submissions with respect to the Heads of Damage claimed by the plaintiff were:67 “1. General Damages The Plaintiff has sustained a minor soft tissue injury to the cervical spine which has, on the balance of probabilities, resolved shortly following the incident. As such the Plaintiff’s injury clearly falls within Item 89 of Schedule 4 of the Civil Liability Regulation 2014 being a “Minor cervical spine injury” which has an ISV range of 0-4. The “comment about appropriate level of ISV” provides inter alia that “an ISV at or near the bottom of the range will be appropriate if the injury will resolve without any ongoing symptoms within months after the injury is caused.” As such the Plaintiff’s injury ought be assessed at an ISV of 1-2 which calculates to general damages for the year ended 30.06.14 in a range from $1,360 to $2,720. 2. Past Economic Loss No past economic loss has been established. That is because of the following matters:  The Plaintiff returned to work immediately post-accident and sustained no loss.  Thereafter the Plaintiff took an extended absence from work for personal reasons unrelated to the motor vehicle accident and sustained no economic loss.  Thereafter the Plaintiff worked, to the extent he was able to find employment, over the period 9 June 2015 to 10 February 2019 and as such sustained economic loss. 65 See document 36, Court file index filed 2 March 2022. 66 The date of closing submissions on 14 April 2022 was approximately 8.1 years (421 weeks). 67 See written submissions on behalf of the defendants, court file index 36 filed 2 March 2022. -- 15 of 17 -- 16  From March 2019 to date the Plaintiff has not worked as a result of his own voluntary choice. He has not sought out employment. The reason he has not worked during that time is his own inaction. He has made no effort to mitigate loss over this period of time. In any event if he has had impairment of working over the period from February 2019 to date it is as a result of the natural progression of his pre-existing degenerative change unrelated to any injury allegedly caused in the motor vehicle accident. The allowance for past economic loss ought be nil. 3. Future Economic Loss The weight of the evidence is to the effect that the Plaintiff suffered only a minor soft tissue injury which resolved within a few months. As such he has suffered no incapacity as a result of injury sustained in the motor vehicle accident which would give rise to an award for future economic loss. The allowance ought be nil. Equally the Plaintiff has demonstrated over approximately 4 years post- accident an ongoing capacity to undertake whatever work he wished. He has been functionally assessed as being capable of ongoing employment, both in pre-employment medical assessments and in the medicolegal reports of inter alia Dr O’Toole and Dr Jonathan. 4. Lost Superannuation In light of the absence of any economic loss award no superannuation is recoverable. 5. Past Expenses No evidence was given to verify any claim for past expenses. No receipts or invoices have been produced to substantiate any past expenses. The Plaintiff claims for the cost of massages post incident without the benefit of producing any receipts in evidence. The are 2 reasons why there ought be no allowance made in this regard namely: 1. Any injury sustained by the Plaintiff to his neck in the motor vehicle accident resolved within a short period of time following the motor vehicle accident. 2. The Plaintiff has been undertaking massage treatment throughout the whole of his life. (There are in fact records of Sarah Field attesting to the Plaintiff’s pre-accident massages at least for some period during the couple of years immediately prior to the subject accident. The Plaintiff admitted in cross examination that he would have continued to undertake massages regardless of whether he had been involved in an motor vehicle accident). 6. Future Expenses The Plaintiff’s soft tissue injury resolved within a short period. He has no entitlement to damages for any future expenses. -- 16 of 17 -- 17 It can be seen from the aforesaid that the Plaintiff’s total award of damages ought be no more than about $2,000-$3,000 (assuming some unspecified “global” allowance for some medication and treatment expenses in the few months post incident during which the soft tissue injury resolved).” [39] The submissions of the defendants are consistent with my findings concerning the nature and extent of the plaintiff’s injury. The plaintiff has failed to prove any loss of earning or capacity to earn income past or future. I accept the defendants’ submission that Item 89 of the relevant schedule is applicable. My assessment of the likely effects of the motor vehicle accident in the circumstances of the accident described by the plaintiff in his evidence68 suggest to me however that an ISV of 2 or 3 might be appropriate, $2,720 or $4,080.69 In addition a modest global allowance of the nature suggested by the plaintiff is appropriate. I assess the damages recoverable by the plaintiff at $5,000. Conclusion [40] There should be judgment for the plaintiff against the second defendant for $5,000. [41] I will hear the parties as to costs. 68 See [12] above. 69 Being, in my view, somewhat generous to the Plaintiff. -- 17 of 17 --