Chalacas v Central Motors, Reeves & FAI General Insurance Co Ltd [1996] QSC 161

Reporting sL 9t//t 1 Bureau TRANSCRIPT OF PROCEEDINGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the qirector, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION FRYBERG J No 1130 of 1992 NICK CHALACAS and CENTRAL MOTORS and MICHAEL REEVES and FAI GENERAL INSURANCE COMPANY LIMITED BRISBANE .. DATE 09/08/96 JUDGMENT This only. 1 REVISED COPIES ISSUED State Reporting Bureau Date /0 <i?'! ~/4, Plaintiff First Defendant Second Defendant Defendant by election -Ith Fl1111r, The Law Courts, George Stred, llrish:111c, Q. ,.t()()() Tcleuhonl': (07) .12-47 .t.160 F:ix: ((}7) .l.!-47 S,<;32 -- 1 of 15 -- 090896 mmb (Fryberg J) HIS HONOUR: I have been listening to the evidence in this case as it has progressed and thinking about it as it has unfolded over the past five days. In the circumstances I feel I am in a position to give a judgment straight away. I trust that that will be something which will be preferred by the parties rather than having to wait for many months in order to get a result. The plaintiff's claim is for damages for personal injuries suffered, he alleges, in a motor vehicle accident which 10 occurred in Stanthorpe on 7 August 1989. The plaintiff gave 20 evidence that the accident occurred when he was the driver of his Datsun motor vehicle. He said that the vehicle was stationary in Folkstone Street, Stanthorpe at its intersection with Maryland Street. He was waiting, he said, for an opportunity to turn right and was waiting for the traffic which was impeding his turn to clear. While he was waiting another vehicle collided with the rear of his car. That vehicle was owned and driven by the second defendant, the defendant by election being the licensed insurer of the vehicle. Mr Chalacas, the plaintiff, does not claim to have observed the approach of the vehicle which hit his car from behind, but he gave evidence that it was a very large impact. His case was that the car which hit him was travelling downhill down Folkstone street at considerable speed. He has previously alleged at various times 50 to 60 kilometres per hour and I think once even 90 kilometres per hour, but it is not part of his case that he saw it or that any particular 2 JUDGMENT 30 4i; /., -- 2 of 15 -- 090896 mmb (Fryberg J) speed was involved. His case is that it was going at substantial speed.· He says that the approaching vehicle braked at the last moment, veered to the left and collided with the left rear of his vehicle. The driver of the other vehicle, which was a Holden Calais 10 sedan, Mr Reeves, also gave evidence before me. He denied the version put to him by Mr Chalacas. He said that prior to the collision his vehicle was stationary behind Mr Chalacas' vehicle, which was also stationary. He said Mr Chalacas' vehicle moved off and then stopped again a short distance further on. He moved off and did not stop in time. He said that there was a minor collision, his speed at the time of that collision being, he estimated, some three to five kilometres per hour. The damage which occurred to both vehicles is depicted in the photographs Exhibits 11 and 12. I accept the view that that damage is very minor in the scale of things as they occur in motor vehicle accidents. In reaching that conclusion I do not have to rely only upon the visual evidence of the photographs. Exhibit 10 and Exhibit 37 give some detail of the parts which had to be fixed and the number of hours of work which had to be done to each vehicle. That was supplemented by oral evidence from Mr Reeves and Mr Chalacas. On all of that evidence I am satisfied that Mr Reeves' version of the accident is a truthful and correct one. I accept his evidence that he had not had anything to drink on the day in que~tion and there is no reason to doubt the 3 JUDGMENT JO 50 ,., -- 3 of 15 -- 090896 mmb (Fryberg J) accuracy of his memory about those events. I completely reject the attempt made by Mr Chalacas to suggest that in some way Mr Reeves was a regular drinker. The case is complicated because this was not the first accident in which Mr Chalacas had been involved. It is understandable that anyone would have difficulty in separating injuries sustained in two sequential accidents. In the present case, if injuries were sustained in two sequential accidents, the problem is particularly magnified because the injuries which Mr Chalacas claims occurred or were aggravated in the second accident are very much the same injuries as he attributes to the 1985 accident, the first of them. He does allege, and he has given evidence to this effect, that in the 1989 accident he suffered injuries to his lower neck and shoulder which he did not suffer in the earlier accident. Otherwise, however, the injuries seem to overlap and the allegations in relation to 1989 appear to be allegations of aggravation of earlier injuries. Whether in fact Mr Chalacas suffered any further injury of a different type in the 1989 accident is a matter of which I am left in some doubt. He asserted that he had not suffered an injury to his shoulder but I note that Dr Khera reported in Exhibit 27 at page 2, a report dated 31 January 1992, that when seen in that month Mr Chalacas told him of the 1989 accident and also told him, "His previous problems had been re-aggravated and he started to have a problem with the left shoulder joint again." Whether that means that the problem had earlier 4 JUDGMENT 10 ?Cl j(; 50 ,., -- 4 of 15 -- 090896 mmb (Fryberg J) existed is therefore in some doubt. Probably that was not a matter of much consequence and I will proceed on the basis that Mr Chalacas had not alleged at any time a shoulder injury prior to the 1989 accident. Apart from the alleged shoulder injury Mr Chalacas has recited a complete list of injuries and their sequelae which is of impressive magnitude. It is unclear to what extent he attributes all of them to the second accident or, indeed, to either accident, but he appears to attribute all of them to both accidents. One exception to that is his headaches, which he attributes only to the first accident, but otherwise I think it is correct to say that he attributes at least aggravation of all of these injuries to the second accident. They consist, first in relation to the head, of pain in the neck, dizziness, stuttering, constant blinking, memory concentration defects, insomnia, stress, aggressive tendencies, poor hearing, a dislocated jaw, pain in his teeth and gums, consequential injury or risk of injury as a result of the need to have treatment of his teeth in that he contracted two strains of tuberculosis, fluid retention to the head with a consequential need for an operation to remove the fluid, an infection of the silicon implant placed in his chin at the time of the removal of the fluid, blurred vision, problems with his throat - he described it at one point as a broken windpipe - and a speech impediment. In relation to other parts of his body he complains of coldness in his feet and hands as well as his nose, weakness in his hands and left arm, shortening of one arm, disc 5 JUDGMENT 10 ](J !,,. -- 5 of 15 -- 090896 mmb (Fryberg J) protrusions in his spinal column, digestive problems, twitching of his body, a coughing of mucous and bleeding when blowing his nose, chest and breathing problems, loss of feeling in his fingers, pain travelling down both arms and pain and continuing problems with his back and shoulders and consistent bladder problems. 10 He further complains of constant pain in his thighs, calves and ankles, of pain when having sex, although he says that he has suffered a loss of libido, and because of that and because of his aggressive qualities brought on by the accident women 20 no longer put up with him. He complains of general tiredness, general soreness, general loss of enjoyment of life and an inability to carry out his previous sport activities of karate, judo, weight-lifting and tennis. He complains of the risk of suffering cancer in the future from the numerous x-rays which he has undergone. He says that his injuries have resulted in a slowing of his reflexes and that that in particular has resulted in a serious accident to his arm when he was unable to get out of the way of some boiling water coming from a radiator which he was opening while hot, leaving him with a scar on his arm. Finally, he complains of a general feeling of being unlucky. In addition to the complaints made to me, there have been a number of other complaints made to various medical practitioners from time to time, including groin pain, ulcers in his mouth, cracked teeth, heart pain, locking of his jaw, heavin~ss and soreness in the eyes, tiredness in the ankles, shortness of breath and dribbling. 6 JUDGMENT 3(, I., -- 6 of 15 -- 090896 mmb (Fryberg J) With that list of complaints he has, not surprisingly, seen a very large number of medical practitioners. Dr Fraser, whom he saw toward the end of 1995, was furnished with 41 reports from 31 people, almost all of whom were medical practitioners. Despite this multitude of medical expertise to which he has 10 been exposed, he called only three witnesses in support of his case. They consisted of a physiotherapist, Mr O'Grady, and two researchers from the University of Newcastle's Cervical Spine Research Unit, Professor N Bogduk and Dr L Barnsley. Mr O'Grady gave evidence of the plaintiff's condition when he saw him earlier this year for the first time. He recorded Mr Chalacas' complaints to him as being headaches, eye and hearing problems and interference with muscle strength and coordination. He administered a leg strength test which showed no large deviations from normal and some slight reduction in right leg flexion. He also tested upper limbs and noticed some significant deficiencies of flexion/extension and abduction/adduction. These disabilities were apparently induced by pain, alleged pain being the limiting factor. Mr O'Grady concluded that the drop in strength of movement of the upper body, "might be indicative of some nerve route compression in cervical spine on left shoulder damage from the accident." Professor Bogduk and Dr Barnsley gave evidence in expansion of Dr Barnsley's report which is Exhibit 26. It emerged that Professor Bogduk is in charge of research work being conducted at his unit to determine whether persons who had been involved 7 JUDGMENT 2() 3(J 50 ,,, -- 7 of 15 -- 090896 mmb (Fryberg J) in motor vehicle accidents and who complained of whiplash injuries had any organic injury traceable to the zygapophysial joint. Mr Chalacas was seen as part of that research project. It appears from their evidence that that project, which was conducted apparently in 1991 and 1992, revealed that about 50 per cent of the subjects - some 200 in number - could 10 be demonstrated to have organic damage attributable to those joints. However, testing of the plaintiff proved that he was not in that class. His damage could not be attributed to those joints. The studies conducted by these two witnesses in no way addressed other neck structures and, as Dr Barnsley's report says, the question as to whether they are the source of pain in Mr Chalacas' case remains unresolved. The other possibilities to which reference was made were abnormalities in the intervertebral discs and various spinal ligaments that would provide a suitable substrate for pain arising from the neck. One of the matters of some controversy in the evidence was whether it is possible for neck pain to exist which does not show up by conventional x-ray or magnetic resonance imaging. Dr Khera firmly expressed the view that it is not possible. Dr Barnsley and Professor Bogduk firmly expressed the view that it was. Most-of the other medical practitioners who gave evidence were prepared to accept the possibility that Professor Bogduk's view was correct. It seems to me that the evidence strongly favours Professor Bogduk's opinion on that point. In my view, it is not to be concluded that merely because an injury cannot be seen on x-rays or magnetic resonance imaging, that that injury does not exist. On the 8 JUDGMENT 20 /., -- 8 of 15 -- 090896 mmb (Fryberg J) other hand, to prove that a negative imaging result is not conclusive against the plaintiff is not to prove the plaintiff's case. It is merely to prove that it is possible that he has the neck injuries of which he complains. The question still remains whether he has the neck injuries of 10 which he complains, that is whether he fits into the other 50 per cent that Professor Bogduk could not positively identify, or whether he has no lasting injury at all in his neck. On that question Dr Barnsley and Professor Bogduk expressed no opinion. It is true that some of the wording toward the end of Dr Barnsley's report, read in isolation, is capable of sounding like a conclusion that the plaintiff does have the condition which he complains of. However, when those provisions are read in the light of the whole report and of the evidence given orally by both witnesses, it is plain that the statements are no more than a recitation of the position on the assumption that everything that Mr Chalacas has told them is correct and that the pain does indeed exist. That is very much one of the questions before me. Although no further medical evidence was called on behalf of the plaintiff, Mr Chalacas submitted that I should infer that there must be something medically wrong with him because a Government doctor authorised him to receive a pension. That submission really demonstrates the disadvantage which a plaintiff such as Mr Chalacas suffers when he conducts his own case. It is plain that the question whether he has an injury has to be resolved on .the evidence presented in Court by witnesses who enter the witness box and give their evidence. 9 JUDGMENT 20 JO 41; 50 I.,. -- 9 of 15 -- 090896 mmb (Fryberg J) I am not willing to use the process of reasoning which Mr Chalacas relies upon in this context in support of his case. The defence case is simply that the plaintiff has not proved that he suffered any injury as a result of the 1989 accident. 10 The plaintiff, of course, was th·e major witness about the question of what injury resulted from the 1989 accident. It is, therefore, necessary to reach a conclusion on his credibility. In my judgment, Mr Chalacas is a person whose evidence cannot be accepted. I thought he exaggerated wildly for much of the time while giving his evidence and much of what he said was unreliable. He was imprecise and contradictory in much of what he said. Twice he reached a position where he was obliged to claim privilege against self-incrimination in order to avoid answering questions which were put to him. He persisted in submissions that I should find at least five medical practitioners who gave evidence in this trial adverse to his case to be deliberately writing false favourable reports for an insurance company, to be in cahoots with an insurance company and to be lying in this trial. He has persisted in making that submission despite the fact that there is not one scintilla of evidence which would support it and despite having been told on numerous occasions of the need to have evidence to support any submission which he might make. He appears to want to pursue these claims not only because the doctors concerned are unfavourable to his case but because he seems to have some vendetta against the State Government 10 JUDGMENT 20 30 I., -- 10 of 15 -- 09089~ mmb (Fryberg J) Insurance Commission of South Australia, a company not involved in the present litigation. He seems to have the view that that company has been involved in some conspiracy with a number of South Australian medical practitioners and that these proceedings should be used as some sort of Royal Commission to try to expose that conspiracy. Needless to say, the proceedings did not follow that course. It appears that the origin of this may be some earlier litigation conducted in the District Court in South Australia in relation to the 1985 accident. I do not know the exact outcome of that litigation but I draw the inference that Mr Chalacas was disappointed with it. It is unnecessary for me to make any finding about what injuries, if any, were suffered in that accident by Mr Chalacas. I am satisfied that its effects were probably spent by 1989 but, again, that finding does not seem to me to be essential to the result in the present case. I am satisfied that the plaintiff does not suffer from most, if not all, of the ailments which he presently claims to suffer. I am further satisfied that he no longer suffers from anything which could possibly be attributed to the 1989 accident. There is simply no icceptable evidence before me, once I put aside the plaintiff's own evidence, which would support a finding that the 1989 accident continues to have any effect at all upon Mr Chalacas' condition. That leaves the question whether the 1989 accident caused him 1 1 JUDGMENT 10 20 50 I., -- 11 of 15 -- 090896 mmb (Fryberg J) any injury at all. On this issue my mind has to some degree fluctuated. On the one hand Mr Chalacas, although he says he suffered an injury to his lower neck and shoulder, has not called.evidence from anyone who examined him in the period immediately after the 1989 accident. In one sense that is surprising, since he says that he made a number of visits to a 10 chiropractor, a man calling hims~lf Dr Gebhardt, and also a visit to a medical practitioner for an x-ray which he says revealed nothing. One might have expected Dr Gebhardt to be called. However, I would not propose to draw very much from Mr Chalacas' failure to call him. He was called in the South Australian litigation and Mr Chalacas agreed that his evidence was the subject of adverse comment in that litigation because it turned out that he wrote similar reports on the same day about the two accidents in which Mr Chalacas was involved without referring to either accident in the report relating to the other. That would seem to be an attempt by him deliberately to mislead the Court and it is not surprising that he was the subject of adverse comment. In these circumstances, Mr Chalacas was perhaps wise not to call him in the present proceedings. The disadvantage from Mr Chalacas' point of view, though, of that course is that his claim to have suffered injury at the time of the second accident in 1989 has very little evidentiary support outside his own testimony. I say ''very little" because it is not entirely devoid of support. The one bit of support which it seems to get comes from the 12 JUDGMENT 20 50 I.• -- 12 of 15 -- 090896 mmb (Fryberg J) evidence of Dr Fraser, a witness called on behalf of the defendant by election. Dr Fraser's opinion was that the nature of the accident that the plaintiff was involved in could be expected to give rise to a contusion of the soft tissues of the chest and abdomen due to the restraint of the seatbelt and possibly a strain of the supporting soft tissue 10 structures of the cervical and lumbar spine. Dr Fraser thought that any such injuries would be expected to resolve spontaneously within a few weeks to a few months. I am not satisfied, in the absence of any corroboration, that Mr Chalacas suffered any strain of the soft tissue structures of the cervical and lumbar spine, or any other injury or aggravation, but it does seem to me that Dr Fraser's evidence corroborates Mr Chalacas to this extent: that if he was wearing a seatbelt at the time of the second accident, it is probable that he would have suffered a contusion - that is bruising - to the chest and abdomen. I am surprised at the duration of such bruising which Dr Fraser suggests, but will accept it. The difficulty in Mr Chalacas' case is there is no corroboration of the fact he was wearing a seat-belt, a fact assumed by Dr Fraser for the purposes of his report. However, wearing a seat-belt is a normal activity. There is no suggestion in the evidence that Mr Chalacas was not wearing a seat-belt. It was not put to him that he was not wearing a seat-belt and in those circumstances I am prepared to accept that he was. Since Dr Fraser ~pparently was aware of a degree of detail of the circumstances of the collision and was given a good deal more detail in the course of his evidence, including reference to Exhibits 10, 11 and 12, it seems to me 13 JUDGMENT 2() .iO I., -- 13 of 15 -- 090896 mmb (Fryberg J) that some weight can be attributed to his opinion. I therefore find that as a result of the 1989 accident the plaintiff suffered some temporary bruising to his chest and abdomen from the seat-belt, which bruising cleared within a matter of weeks to a few months. I am not satisfied that that 1 0 bruising would have caused any loss to Mr Chalacas' earning capacity either prior to trial or a fortiori for any period in the future. With some hesitation I am prepared to accept that it may have caused him to attend the chiropractor rather more frequently than otherwise he would have attended, although I note that at the time of the accident he claims he was still attending the chiropractor as a result of the 1985 accident. I am also prepared to accept that the bruising may have induced him to buy a few more analgesics than otherwise he would have purchased. No comparable cases have been cited to me. It is hardly surprising. I doubt whether anyone has ever proceeded to trial for such minor injuries. In my judgment the bruising can adequately be compensated by an award of $500 for pain and suffering and $100 to cover any conceivable expenses and special damages which Mr Chalacas may have suffered. I see no other head of damage which can be attributed to the 1989 accident. I therefore propose to give judgment for the plaintiff for $600. 14 JUDGMENT 20 )0 50 '" -- 14 of 15 -- ' 090896 rnrnb (Fryberg J) HIS HONOUR: So far as costs are concerned, I order that the plaintiff recover against the defendant by election his costs of and incidental to the action incurred on or before 5 July 1994, to be taxed on the Magistrates Court scale appropriate to the sum of $600. I further order that the defendant by election recover its costs incurred since 5 July 1994, to be taxed. In each case I include in the order for costs all reserved costs incurred respectively on or before in the one case or after in the other case 5 July 1994. 15 JUDGMENT 10 2() 30 4ij 50 ,., -- 15 of 15 --