Riseley v Walters[1997] QDC 221

BETWEEN:

AND:

REASONS FOR JUDGMENT - McGILL D.C.J.

Delivered the 6th day of June 1997

The plaintiff was injured in a motor vehicle accident on 19 March 1994 when the vehicle in which he was travelling as a front seat passenger came into collision with another vehicle at the intersection of the Gold Coast Highway and Fifth Ave, Palm Beach on the Gold Coast. The defendant's vehicle was attempting to turn right across the path of the vehicle in which the plaintiff was travelling (Exhibit 40) in order to enter Fifth Ave. Liability is not in issue, but there is a substantial dispute as to the consequences of the accident to the plaintiff

The plaintiff said (p. 10-11) that the collision, which was on the left hand side of the vehicle in which he was travelling, spun the car, his torso went one way and his head went another way and he felt a loud snap in his neck. He said that immediately after the accident he felt pain which caused him to lock up or seize up, and he went into a situation he described as “crabbing”.

The accident must have happened shortly before 11.30am because it was reported to the ambulance service at 11.32am. The ambulance report which is part of Exhibit 2 indicates that the plaintiff complained to the ambulance bearer of cervical pain from C2-T1 non-radiating. Examination “head to toe” revealed no other pain or tenderness. The plaintiff was taken to the Tweed Heads District Hospital where he was examined and x-rayed before being allowed to return home. According to the report of Dr Prescott on behalf of the Hospital (Exhibit 1) the plaintiff's “major complaint was of posterior neck pain............There was no radiation of the pain. ...........tenderness was noted at his right and left trapezius muscle”. An x-ray report indicated no fracture or dislocation and that the disc spaces and vertebral bodies appeared normal. There was limitation of movement noted from flexion to extension, and a loss of the normal cervical lordosis in the mid cervical spine, which was said to be indirect evidence of muscle spasm following the recent trauma. According to Dr Gillett the absence of spinal lordosis indicates muscle spasm associated with acute injury to the neck, and is suggestive of significant injury and poor long term prognosis: p. 74-5. The hospital prescribed a soft collar and an analgesic and he was discharged.

The plaintiff said (p. 11) that after being sent home from the hospital that night and the next day he was just crying with pain in the neck and the head, like massive headaches all down the left side radiating into his arm and leg. On Monday (the accident occurred on a Saturday) he saw a GP Dr Exelby who gave evidence. Dr Exelby's report (Exhibit 3) prepared on 23 June 1994 indicated that the plaintiff presented with symptoms in the neck, upper back, left shoulder and spasms in the left index finger, and paraesthesia throughout the back and chest. There was marked muscle spasm in the neck and no significant movement of the spine could be obtained without causing extreme pain. He was very tender from C3-T8 spine. He was given Endone tablets for pain relief but when seen the following day complained that the Endone had given him only limited sleep and was given Nurofen and Codral Forte tablets and referred to physiotherapy and Dr Leong Tan a specialist.

I have also have a report (Exhibit 4) dated 22 March 1994 from Kay Heggie a physiotherapist who said that when he saw her the plaintiff could not cough and could not sit and seemed to be in great pain. She said the pain was mostly in the neck but suggested there were other problems, and that an MRI scan would be useful. There was an MRI performed on the cervical spine on 27 February 1995 which detected no abnormality: Exhibit 17.

Dr Tan's letter to Dr Exelby on 28 March 1994 (Exhibit 6) indicates that the plaintiff's complaints to him were of an increasingly sore neck, pins and needles across the chest and abdomen, pain in the interscapular region, severe spasm in the left index and middle fingers, but no pain down the arms. He had very restrictive neck movement with marked tenderness in the lower cervical and upper and middle thoracic spine. The doctor prescribed bed rest and ordered x-rays and a CT scan and gave him further pain relief medication. The CT scan was reported on by Dr Gray on 25 March 1994 (Exhibit 5) apart from a minor dextro scoliosis, the neck was normal and Dr Gray's conclusion was that it was a normal examination. According to Dr Tan on 6 April 1994 (Exhibit 7) an x-ray of the thoracic spine was also normal. He was said to be sleeping much better now and Dr Tan wanted him to take off the cervical collar from the following week and reduce medication during the day time, and commence physiotherapy and acupuncture.

On 7 April 1994 the plaintiff reported to Dr Exelby a reasonable response to a combination of physiotherapy and acupuncture.

The plaintiff was seen by Dr Gillett an orthopaedic surgeon for the purposes of a medico-legal report on 22 April 1994. According to his report (Exhibit 13) the plaintiff's account of the accident was that he had pain in his neck within five to ten minutes of the accident and his neck was stiff, and pain radiating to the left shoulder and radiating to the ring and little fingers of the left hand and radiating to the neck (sic ? back) between the shoulder blades. He said the pain was improving with time, that he had required help from his mother for some four weeks after the accident and was still unable to do some things such as washing and hanging out washing, although he could fend for himself in preparing food. His neck pain was reducing, and he had been off Endone for two weeks and was just on panadol. His neck was essentially rigid, and painful with pain radiating into the left shoulder, and constant headaches. He had pain in the left arm and spasm to the middle index fingers, and also had spasm to his left toe. He had begun driving a motor vehicle about a week ago and was starting to get some sleep. Dr Gillett was of the opinion that the plaintiff had suffered a musculoligamentous injury to the cervical spine which was causing the pain he was currently experiencing which was significant, there was no evidence of relevant pre-existing condition, he was likely to recover but not entirely, and no surgery was indicated. During oral evidence Dr Gillett pointed out that it was then too early after the accident to make any useful assessment to the long term prognosis for the plaintiff. (p. 82)

On 23 June 1994 the plaintiff saw Dr Exelby (Exhibit 3) and reported continuing problems with the neck and shoulders, a dead feeling over his acromion, and an inability to lift any significant weight above his shoulders. There was tenderness from C2-T2, and he complained of constant headaches with painful neck worse with movement. Shoulders were examined by x-ray and ultrasound scan, which revealed the likelihood of fluid in both subscapularis tendons, particularly on the left side: Exhibit 16. Dr Exelby explained Exhibit 16 on the basis that it demonstrated that there had been a significant injury to the subscapularis tendon which was consistent with some force having been applied to the plaintiff's left shoulder by the seat belt in the motor vehicle accident, that suggested or would be at least be consistent with some significant injury having occurred at the same time to his neck: pp. 154-155. However he said that the injury to the tendon suggested by Exhibit 16 did not explain the complaints of difficulty with the left arm and hand: p. 155.

The plaintiff returned to Dr Tan on 31 October 1994 complaining that his symptoms had not improved; Dr Tan could offer nothing except the suggestion that he proceed with his compensation claim (Exhibit 11).

On 13 December 1994 the plaintiff attended an occupational therapist, Ms Elli O'Leary at the request of his solicitors for the preparation of a report. That report dated 12 June 1995 is Exhibit 10 - its preparation was delayed until the results of an MRI scan became available. The plaintiff's complaints at the time of the accident included severe pain in the neck and over the region of the shoulder blades, muscle spasm in the neck and shoulders, pins and needles in the index and middle finger of the left hand, upper and lower abdomen and front and back. He had almost no neck movement. His jaw locked up the day following the accident. He received acupuncture and physiotherapy which produced “slight improvement”. He wore a neck brace for thirteen to fourteen weeks but by December was not wearing it at all. For the first six weeks he could not open his jaw sufficiently to eat a sandwich. He felt his condition was gradually worsening and that if it continued he would end up in a wheelchair. He said his deterioration had been specially rapid over the six weeks prior to the assessment. He attributed this to an episode at hydrotherapy when he was floating on his back and nearly drowned. His current symptoms were said to be headaches, often half a dozen per day, which were “like someone hit me with a sledge hammer”; constant left sided lumbar pain radiating right down the left leg; spasm of the left middle and ring fingers and left third and fourth toes; extremely limited neck movement and constant left-sided neck pain extending to the left hand; inability to extend fully the left wrist or left foot. For the purposes of the report Ms O'Leary had the plaintiff walk a distance of 200 metres. She said that he had a marked limp, very slow speed, and slightly wide based gait. He said he avoided walking more than 100-150 metres due to severe left heel pain. His mother reported that he usually wore thongs, and had worn right down the sole of the right thong while the left thong was hardly worn, but these were not produced to Ms O'Leary. Ms O'Leary described his movements generally throughout the assessment as slow, guarded, somewhat robotic and he avoid moving his neck on all occasions. She noted that sometimes during the assessment he appeared to have difficulty concentrating. She concluded that he was currently performing at very low functional level, tolerances for all assessed activities were poor. Ms O'Leary concluded that he was unable to work as a carpenter, or indeed even part-time employment of semi-secondary nature, and thought that many activities of self care and most usual household and recreation activities were severely limited.

The plaintiff was sent by his solicitors to a clinical psychologist, Ms Trudi Leivesley, in December 1994 for assessment of his intellectual memory processes, objective assessment of his current personality status, and assessment of occupational interest and values. The examination was not completed on the first occasion and was not completed until a second visit in May 1995. This led to a report in June 1995: Exhibit 18. There was a review by Ms Leivesley in November 1996 which led to a further report: Exhibit 19. According to Exhibit 18 in December 1994 the plaintiff said that after the impact he felt shocked, was able to get out of the car but after about five or ten minutes was in “agony” with severe neck pain, and his jaw “locked up”. He had received physiotherapy for four to five months after the accident which he said did not help and he found hydrotherapy very painful. He mentioned an incident where his left foot turned blue about seven months after the accident, that for about eight months after the accident it was necessary for his mother to come and care for him each day, that until early 1995 his mother continued to visit on a weekly basis in order to assist him in washing, cleaning and driving long distances. In 1994 he said that his condition had deteriorated; in May 1995 he said that his condition had stabilized, he complained that there was not much he could do and found it a struggle to do anything. He complained of pain in the neck and shoulder exacerbated by any movement, pain in the left hand a good deal of the time, severe pain in the left leg and foot when he walked, pain in the left hip. He complained of very frequent headaches in 1994 on the left side of his head, but in 1995 he said they were becoming less intense. There was no complaint recorded of back pain, or reference to back pain in oral evidence p. 42.

Ms Leivesley's assessment of the objective personality status testing was that the response was consistent and forthright, and did not indicate fabrication. He had relatively mild or transient feelings of depressiveness, and his health concern represented a focus which was having a negative impact on his self image. The result of formal appraisal testing on pages 16 and 17 seems to me to represent an extraordinary range of outcomes which I have difficulty in reconciling, but Ms Leivesley did not attribute any significance to this: p. 54. She expressed the view that post accident life style changes were causing him distress and that his concern for his physical health was quite pronounced and was causing him considerable distress in his daily life. She expressed the view that it would be difficult to re-train him, and thought it appropriate that he receive supportive counselling.

Dr Gillett saw the plaintiff again for the purposes of a further report on 22 May 1995 (Exhibit 14). At that time the plaintiff reported to him that he had had acupuncture treatment which had helped, and that the pain had reduced with time. He noted that the plaintiff was sleeping better although he had to avoid sleeping on his left side, he had headaches which tended to be on the base of the neck, car travel aggravated the symptoms and he had some numbness in the middle and ring fingers. He also complained of pain in the lower back, left hip and leg with pain radiating to the left leg and heal, and said he had had trouble in these areas from the time of the accident. He complained of the problem of dropping things with his left hand (he is right handed: p. 18), was able to do some washing and cleaning in his house and his ability to look after himself had improved over the last couple of months. Dr Gillett noticed that neck movements during examination were different from neck movements at other times, that there was no true muscle wasting in the arm, that there was freer motion when dressing and undressing than when being formerly examined, and straight leg raising was 80° on each side tested in the sitting and supine positions. Dr Gillett was of the opinion that objectively he looked more comfortable than he did when seen in 1994. On the basis of symptoms and signs there appeared to be a 7.5% loss of body function in relation to the cervical spine and 5% loss of body function in relation to the lumbar spine, but there were inconsistencies in his overall presentation, which gave rise to concern as to whether there was some psychological element in the symptoms.

The plaintiff was referred by Dr Exelby (apparently in June 1995: p. 173) to Dr Rice, a psychiatrist and a specialist in pain management who operates a pain clinic at the Holy Spirit Hospital. Dr Rice sent a letter to Dr Exelby which is Exhibit 32, and subsequently a report to the plaintiff's solicitor dated 2 November 1995 which is Exhibit 33, and a follow up letter dated 1 December 1995 which is Exhibit 34. Dr Rice also gave evidence. He was (in 1995) of the view that the plaintiff's behaviour was quite bizarre and out of proportion to any reported stimulus or anything shown by the clinical findings of other examinations reported on: p. 30. He thought that his behaviour was, as he put it, jurisigenic in aetiology, that is to say it was conscious behaviour on his part: p. 30. The plaintiff had a dependent personality, and there were a number of factors which were re-enforcing his sick role, the principle one a desire to obtain the benefit of litigation. He referred to the plaintiff having spoken of a desire for his day in court: p. 33. He was of the opinion that the plaintiff was consciously exaggerating his degree of impairment and when the case was finished things would change: p. 36. He thought that the plaintiff had been obtaining gain in the family situation particularly from his mother who was doing far too much for him: p. 32. The letter Exhibit 32 referred to his dependant personality features, and a resistance to any rehabilitation which proved painful. The report (Exhibit 33) recounts a large number of things supposedly said by the plaintiff to Dr Rice which support a conclusion of bizarre behaviour and ideation, parts of which are inconsistent with material contained in other medical reports and in evidence before me. He thought the plaintiff had no psychiatric disorder. He thought the plaintiff had an intolerance of activity and had not made a serious attempt to complete the pain management program at the pain clinic, absenting himself from most of it. He said the plaintiff's motivation at this stage was to maximize his symptoms in the interest of maximizing his award of damages, and that this worked directly against the objectives of the pain clinic. In Exhibit 34 he expressed the guarded prognosis that the plaintiff's position was not likely to change.

In early 1996 the plaintiff was sent by Dr Exelby to a psychiatrist Dr Boulnois for assessment with a view to treatment. Dr Boulnois wrote to Dr Exelby on 22 February 1996 and that letter has become Exhibit 22. It was not prepared as a medico-legal report, and is as a consequence less helpful for my purposes. It contains some criticism of Dr Rice's approach to the treatment of the plaintiff, and expresses the view that the plaintiff would benefit from psychological counselling. Dr Boulnois gave oral evidence, where he indicated that the real problem with treating the plaintiff was one of engagement, that is to say getting the plaintiff to accept that he was in need of some psychological assistance and that a psychologist was someone who could help him: p. 126. He thought that if that problem could be overcome psychological counselling would be likely to improve him functionally significantly. Dr Boulnois said he saw the plaintiff on one occasion for one hour and did not think that this was sufficient to give him the opportunity to form a view as to whether the plaintiff was exaggerating his symptoms deliberately. He thought that the continuation of litigation was delaying the resolution of the plaintiff's problems (p. 122) that at the moment the plaintiff was totally focused on pain (p. 124) and was obsessive about his physical condition: p. 125. He thought the plaintiff was prior to the accident a vulnerable person (p. 125), that is someone who was predisposed to react badly to something like a whiplash type injury: p. 129. He also said when the plaintiff attended for the interview he was not looking distressed or limping (p. 123) and did not seem to be holding his neck stiffly (p. 126). Dr Boulnois said he did not notice any physical symptoms at all and having Dr Rice's report he had rather expected to.

After the session at the Holy Spirit Pain Clinic with Dr Rice the plaintiff was sent by Dr Exelby to the Gold Coast Tweed Pain Management Centre, with a view to his being seen by a Dr Mackillop of whom Dr Exelby spoke highly (Exhibit 9). He was however seen by a Dr Perkins, the other specialist at the centre, who prepared a report dated 26 March 1996: Exhibit 24. Dr Perkins was of the view that there was no magical cure which would help the plaintiff and the only way of helping him was first getting him to realise that he was the only one who could help himself and that help needs to come on the physical side, the social side and the psychological side. He thought that it would be a long drawn out process and he doubted if the plaintiff really wanted to go through it as “he has a lot more to gain by staying in the illness mode.” The implication behind the report however seems to be that if the plaintiff is prepared to make the effort there is some real prospect of improvement in his condition.

In February 1996 the plaintiff was sent by Dr Exelby to Dr Christopher, an oral and maxillofacial surgeon, who investigated his trismus (locked jaw). According to Dr Christopher (Exhibit 21) at the time of the examination the plaintiff could not open further than one finger, but his opening increased to almost two fingers when the plaintiff relaxed. Dr Christopher did not think surgery was required, and indeed it did not detect any explanation for the condition, although he does not seem to exclude positively any physical explanation.

In February 1996 the plaintiff was sent by his solicitors to Mr Beveridge a physiotherapist for the purposes of a report: Exhibit 23. The history records pain in the neck and pain radiating to his left shoulder and left fingers after the accident, and that the plaintiff noticed low back and left hip pain one day after the accident. He held his head rigid during the assessment, had a limited forward flexion of the spine and minimal and painful extension, limitation of left and right rotation, by about half, but slump stretching and straight leg raise testing produced no abnormal result. Left hip joint demonstrated a good range of movement. Mr Beveridge observed a greater ease of movement during dressing and undressing. While testing straight leg raising it was noticeably better when tested sitting. Mr Beveridge thought he had very real physical dysfunction as a result of the accident, although he noted some inconsistencies in the examination. He thought there would be value in psychological assessment, but did not recommend further physiotherapy or rehabilitation.

Dr Reddan a psychiatrist saw the plaintiff on 11 March 1996 at the defendant's request for the purpose of the preparation of medico-legal report, which became Exhibit 37. She also gave evidence before me. Dr Reddan's report gives a detailed account of the history and condition as recounted by the plaintiff which includes that:

She recorded in the report that the plaintiff behaved in somewhat an unusual manner during the interview, sitting with a very stiff back and neck twisted around the chair in a most awkward and uncomfortable looking position. Dr Reddan thought that some of the plaintiff's complaints were quite bizarre, that there was no evidence that he was suffering from mood disorder such as major depression or dysthymia. In her report she did not express a choice between a somato form disorder and exaggeration, although she noted that the bizarreness of some of the complaints was unusual compared with those she had seen with pain disorder previously. She thought that from a psychiatric point of view there was no reason why he could not be retrained in another occupation or return to the workforce in some way.

In oral evidence Dr Reddan said that the plaintiff was not limping when he came to see her, that she would have noticed that and commented on it, and he appeared to have no difficulty speaking (p. 75-6). She thought that one of the factors telling against a somatoform disorder was the absence of psychological factors initiating, maintaining or exacerbating the complaints, and his personal history was that he was completely normal until this accident happened which is unusual in someone with somatoform disorder (p. 177). One of the matters that she would have looked for was personality vulnerability such as marked dependency or other personality abnormalities. She also expressed the view what one often finds is that there is an element of both somatoform disorder and exaggeration and it is difficult to sort out when they begin and end. She was of the opinion that there was psychiatric treatment available which was likely to assist the plaintiff to the extent that he had genuine psychological problems (p. 179), although this would be likely to stretch over a year or so. She thought obsessionality was not necessarily linked to somatization, and a histrionic-type behaviour was more likely to be linked to: p. 181.

The plaintiff was seen at the request of his solicitors by Dr Peter Mulholland, a psychiatrist, in July 1996. His report was Exhibit 25, and he also gave oral evidence. The report notes that the plaintiff's parents separated when he was six, and refers to some other matter and concludes that the circumstances of his childhood would have potentially left him vulnerable to development of later physiological problems. The account given to Dr Mulholland at the accident was that the collision caused his vehicle to spin round several times, and the other car collided with several other vehicles. He complained of chronic pain in the neck left shoulder low back mid back, inability to open the mouth properly, weakness in the left arm left shoulder left hand, and his left leg being semi-paralysed. He presented with a bizarre limping gait, and Dr Mulholland thought his general presentation was markedly histrionic. He became angry when told that he had a significant psychological component and that he would not get better unless he accepted this. Dr Mulholland was of the opinion that the plaintiff may have some underlying physical problems, but “the main issue is that either this man has a mixed somatoform disorder consisting of features of conversion disorder, hypochondriasis and psychogenic pain or he is malingering. In the context of an office interview it is not possible to differentiate between the two.” He was further of the view that unless until the plaintiff gave up the notion that his problems were organic they were not going to get any better. He was unemployable and would remain so while he continued to have the present symptoms.

With regard to the gait, Dr Mulholland was shown a short video tape taken on 30 and 31 July 1996 (p. 132) showing the plaintiff walking: Exhibit 30. The video tape shows the plaintiff with a mild limp, and Dr Mulholland said that was not the limp displayed when he presented at the surgery. He also said there was no abnormal neck posture during the interview: p. 62. Dr Mulholland said that having seen the video he would come down on the side that there was at least some significant element of deliberate exaggeration with this plaintiff: p. 67. His childhood situation would have left him potentially but not necessarily vulnerable to the development of a later emotional problem which might take the form of a somatoform disorder: p. 68. He thought that there was probably some element of both malingering and a psychiatric condition: p. 70.

When seen by Ms Leivesley on 18 November 1996 the plaintiff said that his condition had deteriorated since the previous assessment (Exhibit 19 p. 5) his physical restrictions had become pronounced. His health concern were more pronounced than at the time of the previous assessment (p. 11) she was of the view that he appeared to be experiencing genuine distress, and that he believed his physical symptoms and pain to be physically based, that pain management program would be unsuccessful and that he would not respond to counselling to address his physiological adjustment. In other respects the assessment was similar to the earlier assessment, although suggesting some deterioration in the plaintiff's condition.

During oral evidence Ms Leivesley expressed the view that what the plaintiff requires to make him feel better is for someone to determine what is physically wrong with him and provide him with physical treatment which will cure it: p. 41. She thought he was not showing any psychological awareness or insight, and that this was necessary before he could be treated. Each time she saw the plaintiff he was walking in a stilted fashion, not just limping but lurching along p. 45. He had difficulty playing a guitar because of difficulty of manipulating the fingers of his left hand: p. 51. His account of himself was often quite emotive and at times a bit dramatic in his phrasing and the overall description of his problems: p. 53. She thought it was hard to tell whether he was vulnerable pre-accident, but he had certainly reacted in a very intense way to his disability and become very much obsessed with the pain in his neck which she described as an unhealthily strong focus: p. 55. She thought that it was unconsciously driven, but if he had not had this accident he could have become obsessive and excessively focused on something else. Her overall assessment appears to be that she thinks the plaintiff has genuine physical problems which he has reacted to in an extreme way, and in a way which makes it very difficult to help him to adjust to the consequences of the accident.

Dr Gillett provided a further report in November 1996: Exhibit 15. He thought that the plaintiff had developed a chronic pain syndrome, a manifestation of multiple pain disorders and symptoms which were somewhat bizarre, what might be called a somatoform pain disorder. It was out of context completely with known pathological processes. The alternative would be that he was grossly overstating his condition, that is was a malinger. On the basis of the plaintiff's psychological presentation and Dr Gillett's experience of observing people who have chronic pain he preferred the diagnosis of a somatoform disorder. From the orthopaedic perspective he assessed the neck injury as producing a disability of 7.5% of loss of bodily function. If the back was truly injured it would be in the range of 5% loss of bodily function.

Dr Exelby had been seeing the plaintiff consistently from a couple of days after the accident, and was able to give an overall picture of the development of the plaintiff's complaints, and in particular the time at which new complaints emerged. He said that up until 17 October 1994 there had been a slow improvement in keeping with a significant whiplash injury; that day was the first consultation when he was worse than when last seen: p. 155. On 22 August 1994 the plaintiff first complained of a problem with the left hip which was said to be very painful if he was sitting for long periods. Dr Exelby said that he always attempted in a medico-legal matter to document every complaint the plaintiff has at the time, and he said that up until August 1994 he had no record of anything in the lower back or leg: p. 155. I think this is significant. Dr Exelby said that by May 1996 he had noticed movements becoming increasing more exaggerated, and he said that as time when on “many of his symptoms became increasing more bizarre and I found it impossible to attribute all of these symptoms to original injury.” (p. 156) He thought there was some somatizing, and could not say whether or not there was a deliberate addition to the symptoms. He thought there was definitely a psychological overlay by February this year, and possibly before: p. 157. He did think the plaintiff had a significant injury to the neck: p. 157. Acupuncture was offered at the medical centre where he worked, but the plaintiff had chosen to go elsewhere: p. 158. He said that the plaintiff had also seen at least two other general practitioners, one at Burleigh Heads and one at Benora Point: p. 163. Dr Exelby said there was no major increase in symptomatology between October 1994 and February 1996 when it became quite pronounced: p. 164. It is not clear however that the plaintiff was seen all that regularly during this period. He said that it was in February 1996 that the exaggerated limp became apparent. He had no recollection of a limp prior to then. On page 166 Dr Exelby expressed the opinion that the limp was probably unnecessary. Dr Exelby then looked at the video tape Exhibit 30, and said that the limp shown in the video was significantly different from the limp he had seen before (p. 167) but he thought it was significant that there was a limp shown in the video because it suggested that there was a real injury: p. 166. He said that the limp was one which could have been produced by some physical ailment, such as tendon trouble in the left foot: p. 167. He said that there was no apparent tendon injury in October 1994 when he examined the left ankle after the apparent spontaneous haematoma. Dr Exelby said that he did not notice on the first presentation when he saw the plaintiff that he was keeping his mouth jammed closed, and he repeated that he tried to document everything very thoroughly on the first visit in a case like this; he said that the first note that he had of a complaint with the jaw was on 2 March 1995: p. 167-168. He did say there were complaints of pain in the left shoulder from the first visit. Dr Exelby expressed the opinion that the plaintiff's muscles were in spasm because he was trying to stop his neck from moving: p. 170. At page 171 he agreed that the plaintiff had an unusual personality. Dr Exelby was of the view that the plaintiff would not be able to do carpentry work in the future, or indeed labouring work of any kind, and that he did not have the intellectual capacity to go to TAFE or University: p. 172. He could see him ending up on the scrap heap of a chronic invalid. He thought the plaintiff needed some psychiatric help and that as long as he maintained his view that all his problems were physical he was not going to get it. Overall it appears that Dr Exelby's assessment is that the plaintiff does have real problems but they are principally psychiatric or psychological problems rather than physical problems.

On 22 November 1996 an MRI of the plaintiff's brain was performed, which produced a normal result: Exhibit 26.

I have gone into the medical evidence in some detail because the accounts given at different times to different doctors by the plaintiff reveal not just an evolution of his current symptoms over the period since the accident, but also significant changes in his accounts as to when those symptoms developed, and what symptoms he had on the day of the accident. For example, in the case of the pain in the lower back hip and left leg, there was no recorded complaint of pain to the ambulance bearer or the doctor at the Tweed Heads Hospital, or to Dr Exelby although he made an attempt to document every complaint the plaintiff had on first presentation. Dr Tan makes no reference to pain below the middle thoracic spine, nor was there any such complaint made to Dr Gillett in April 1994. The first complaint of any lower pain was on 22 August 1994 when the plaintiff complained to Dr Exelby of pain in the left hip if he was sitting for long periods. By the time he saw Ms O'Leary in December 1994 there was constant left sided lumbar pain radiating down to the left leg, but she did not record any complaint of pain in this region immediately following the accident. Ms Leivesley in December 1994 did not record any complaints of pain in the lower body immediately after the accident, although there were complaints of pain in the left hip, and in the left leg and foot on walking. Yet when the plaintiff saw Dr Gillett in May 1995 he said that there had been pain in the lower back left hip and leg from the time of the accident. The plaintiff said in evidence that he had pain after the accident all down his left side radiating into his leg as well as his arm (p. 11) and said that although he had back and leg pain and had difficulty walking from the time of the accident he had either not mentioned this to the various doctors who examined him or they had omitted to record it: p. 108-115. I do not find this explanation persuasive; it is plausible that sometimes a person preoccupied with pain in one area might fail to mention pain in another area, or that sometimes a person's complaints of pain might not be recorded by a doctor, but it is impossible to believe that everyone who saw the plaintiff in 1994 missed this aspect of the plaintiff's condition immediately after the accident, notwithstanding that several of them were obviously trying to take a complete note of the plaintiff's complaints at that time. I think that the evidence of Dr Exelby is particularly significant in this regard. I find that the plaintiff made no complaint of any pain below the mid thoracic level of the spine prior to August 1994, and did not complain of significant pain or other problems lower in the body until later in 1994, and that this was because the plaintiff was not suffering problems in that area prior to that time. There is no evidence to support the development of problems in that area at that time as a result of physical injuries sustained in the accident, and accordingly it seems to me that the position must be that either:

With regard to complaints about the jaw having “locked up” Dr Exelby had no note of a complaint about the jaw until 2 March 1995, although it appears to have been first mentioned to Ms O'Leary in December 1994, described as something which had happened the day following the accident. He told her that in the six weeks after the accident he could not open his jaw sufficiently to eat a sandwich, but problems with the jaw are not mentioned by Dr Gillett who saw the plaintiff during that period. Dr Christopher in February 1996 could find no explanation for the condition and noted that there was some inconsistency in presentation. The plaintiff's mother who gave evidence did not make any reference to problems of the plaintiff's jaw, or to his being on fluids only for the first two weeks, as asserted by the plaintiff in his evidence (p. 12). The plaintiff said that his jaw just seized up while he was at the hospital after the accident, that the acupuncture treatment he received in April opened the jaw enough so that he could eat, but he still could not open all the way, it was still tense.

Again I find it difficult to accept that this condition, if it did appear to the extent claimed by the plaintiff immediately or shortly after the accident escaped attention for some months, and I find the variation in the accounts suspicious, a suspicion which is aggravated by the inconsistency in presentation reported by Dr Christopher. No one suggested any mechanism by which the injury would produce a physical impairment to the opening of the jaw, and I am satisfied that there was no such injury suffered in the accident. The possibilities are:

There are various other inconsistencies in presentation: generally speaking the longer the time which has elapsed after the accident before the plaintiff gives an account of the consequences he suffered immediately after it, the more extensive and more significant and serious those consequences become. I can not accept that those differences are the result of recording errors by the experts, and the failure of the plaintiff to give a full account of his symptoms at the earlier time.

Another factor which I think is significant is that a number of the experts have noted bizarre and exaggerated behaviour, several have noted inconsistency in presentation, and several have suspected deliberate exaggeration, or put it forward as the, or the alternative, diagnosis. One aspect of inconsistency which I think is significant is in relation to the limp. When I saw the plaintiff walk in the court room he walked in a very unusual way, rather like a sufferer from cerebral palsy. It seemed to me to be much more complicated than simply a reaction to pain when placing the left foot on the ground. It was quite different from the slight and conventional limp shown in the video tape Exhibit 39, even making allowance for the fact that much of that tape is not particularly clear. Dr Mulholland thought the limp he had seen was different from the one shown on the video tape, and that that tipped him in favour of a conclusion there was some significant element of deliberate exaggeration with the plaintiff Dr Exelby also said that what appeared in the video was quite different from what he had seen, but thought it significant that there was some limp shown. I think this is interesting because it suggests that Dr Exelby, who had been observing this plaintiff from the time of the accident on numerous occasions and probably knew him better then any of the other doctors, was somewhat surprised that there was any limp at all when the plaintiff was walking “quite normally”. It is also interesting that on some occasions the plaintiff seems to have turned off the limp, for instance when he saw Dr Boulnois and Dr Reddan. The limp that I saw in court is not the sort of thing that a doctor would fail to notice; it is possible that a doctor might fail to record it, but I would think that unlikely if the doctor was preparing a report for use in court.

There is also the circumstance that on the first day on which he gave evidence the plaintiff did not appear to be attempting to restrict his neck movements, but on the second day, and to a lesser extent on the third day (some two weeks later) he did appear to be deliberately refraining from taming his head without turning his torso. It is possible that inconsistencies in presentation can be attributed to a plaintiff having good days and bad days, and that proposition was supported by the plaintiff's evidence (p. 132), but it seems to me in this case there is too much inconsistency for that to be the probable explanation for it. It was not suggested that a genuine somatoform disorder would produce a variable limp, and it seems to me that the appropriate conclusion on the whole of the evidence is to find that the plaintiff's bizarre limp as displayed during the trial and to some of the doctors is a deliberate exaggeration.

This conclusion is significant, because once I am satisfied that the plaintiff has been deliberately exaggerating his symptoms in one respect I should be weary about accepting his evidence generally, and also weary about accepting the evidence of some of the doctors and other experts who have examined him, particularly those who have proceeded on the basis that his presentation is essentially genuine. I have available a lot more information than any of the doctors or other experts had (except perhaps Dr Exelby, who seems to have been kept generally informed and had the advantage of seeing the plaintiff over a long period of time), and I have the opportunity of comparing the various accounts and considering the plaintiff's lengthy evidence in court.

There were various other inconsistencies in the plaintiff's evidence. He said that he was sent to the physiotherapist Ms Heggie by Dr Exelby: p. 12. Dr Exelby said that he did not send the plaintiff to Ms Heggie either on the first visit or any other time : p. 163. The plaintiff said that after the accident he suffered massive pain in the shoulders: p. 13. No shoulder symptoms were recorded by the Tweed Heads District Hospital (Exhibit 1) or by Dr Tan (Exhibit 6), although Dr Exelby reported that on the first visit the plaintiff described an injury to his left shoulder: Exhibit 3. The plaintiff said that before September 1994 his left leg had been failing and that he had fallen over at least half a dozen times at the early stages: p. 13. By contrast the first complaint to Dr Exelby of problems connected with the left leg was a complaint on 22 August 1994 of a problem with the left hip if he was sitting for long periods: p. 155. The plaintiff said that after the accident he did not consult a doctor until the Monday because Dr Exelby was not available until then, and when asked what was so special about Dr Exelby his response was “He is my GP.....I just like to stick with the same dentist or the same doctors because then they get a general overall understanding of you and what you have been through.” (p. 109) But the plaintiff had never seen Dr Exelby before, although he had previously attended Dr Exelby's practice on two occasions and had been seen by other doctors: p. 109. The medical centre where he worked was open seven days a week: p. 178. I was rather impressed by Dr Exelby myself, but the explanation that he waited until Dr Exelby was available because “he is my GP” was just wrong. The plaintiff said his jaw locked-up after the accident (p. 112) and when he saw Dr Exelby he was talking out of the side of his mouth: p. 113. Dr Exelby said that he did not notice this, and that he had no record of complaint about the jaw until March 1995: p. 167-8. He also made, and defended, the somewhat surprising assertion that he would look in the white pages to find a tradesman: p. 97.

The plaintiff's evidence about his having arranged to play at a concert to Nobby's Beach Surf Club but then cancelling the booking because he couldn't carry the necessary gear seems to me to be simply an excuse: p. 18, p. 134-5. His explanation of difficulty in a hydrotherapy pool when some floatation devise came off and he slipped beneath the waters for a short time seems quite unrealistic: p. 13, 16-17. Prior to the accident the plaintiff was a keen surfer (p. 213). He was also quite unable to give any reasonable explanation of why he had such problems with hydrotherapy at the Holy Spirit Hospital: p. 19. It is almost as if he did not want to helped: indeed he said at one point that he felt he was better off not having people manipulate him but rather doing his own thing: p. 116. He said he did not like wearing his neck brace: p. 145. That is understandable, but many people with painful necks wear them because they ease the pain.

In all the circumstances I am not prepared to accept the plaintiff as a reliable witness.

There is evidence, even from those who are wary about the plaintiff's reliability, that the plaintiff has suffered a genuine injury to his neck. I think that it is of some significance that Dr Exelby thought the plaintiff did suffer a significant injury to his neck (p. 157). Dr Gillett thought he had a significant injury to the spine (p. 74), and he certainly was very guarded in accepting the plaintiff's accounts of his symptoms: see for example p. 79. The matter of course is very difficult to assess particularly in circumstances where I can not accept the plaintiff as being either completely or even generally reliable, and this is a difficulty that would have been shared by the various expert witnesses who examined the plaintiff, although it seems not all of them were aware of it. Nevertheless on the whole it seems to me probable that the plaintiff did suffer a significant whiplash injury in the accident, and that this produced some symptoms of pain in the neck which are continuing. I accept Dr Gillett's assessment of this as producing a 7.5% whole body disability (Exhibit 14).

The other question is whether the various other symptoms of which the plaintiff complains are the result of a somatization disorder, that is to say, whether they are consequences of the accident and original injury which are subjectively genuine but arising from a psychiatric condition rather than a physical injury. There is some evidence in support of this from some of the doctors, and the finding that there is some exaggeration is not necessarily inconsistent with a finding that there is some somatization disorder, because both Dr Mulholland and Dr Reddan thought that there may be a mixture of both present in the plaintiff.

The matter is complicated by the fact that it seems that none of the psychiatrists were told about an incident prior to the accident which seems to me throws some light on the plaintiff's personality. When explaining about the low income earned by him for several years prior to a period of employment by his brother which immediately preceded the accident the plaintiff gave, as the only reason, a dispute with Telecom over a amount of $150 which led to his entry not appearing in the yellow pages (or, he said, the white pages) over a number of years, and said that this gravely inhibited his business. Although his evidence about this was not always consistent - for example at one point he said that he was generally able to get a job because he knew a lot of people (p. 103), and at another point that people knew where to find you if they wanted you - I think it unlikely this was a complete fabrication. The significance of this incident seems to me to lie not so much in the fact that he went to some considerable lengths to try to have an unfavourable credit reference expunged, since one can understand a person reasonably taking the view that this was a matter of legitimate concern, but rather that he allowed the dispute over such a small amount to impede his business so severely for so long. This strikes me as being at least odd, if not downright irrational. This was not drawn to the attention of the psychiatrists before they gave evidence in court, and the only matter referred to of significance in his history was the feet that the plaintiff's parents' marriage had broken down when the plaintiff's father had left while he was quite young. This was regarded as something which predisposed him to some psychiatric problems (e.g. p. 68). There was also some evidence of a dependent personality in relation to his mother (Exhibit 32), and there was evidence from Dr Exelby (p. 171) that the plaintiff had an unusual personality.

In my opinion prior to this accident the plaintiff had an unusual personality and one which was vulnerable in a sense that he was likely to react very badly to any kind of significant physical injury or indeed any other significant adverse event in life (p. 125). He has become excessively focussed on the injury (p. 124) and its effects on him, perhaps even obsessed with it (p. 125). and this has led him to react badly by failing to adjust to the continuing pain, particularly by failing to accept it and that it is not going to go away. As Ms Leivesley said, what the plaintiff wants is a physical cure: p. 41. As Dr Perkins pointed out (Exhibit 24) the plaintiff needs to accept that this is not going to happen and that he needs to adjust to the pain and learn to live with and make the best of life. I think there is some force in Dr Rice's assessment (Exhibit 32) that the plaintiff's approach to coping with the pain has not progressed beyond the “stop if it hurts” stage. This leads the plaintiff to take an exaggerated view of his suffering, and of the extent of his disability, something which may be reflected in the tendency for the plaintiff's suffering at the time of the accident to be described in retrospect as much more extensive than was described at the time, as I have noted above. It may well be that the plaintiff has also become overly conscious of any of the normal aches and pains of everyday life, or indeed any other problems that he has developed, and all too willing to attribute them to the original injury and add them to his catalogue of consequences. He has a long list of current symptoms: p. 192.

To some extent this behaviour is unconscious, in the sense that it is simply the way in which this plaintiff, because of his personality, reacts to the physical injury he has suffered. But I think there is more to it than that. I think that the plaintiff's dependent personality and the excessive support he has received from his mother (p. 32) have given him some gain from his sick role, which has also been provided by the prospect of damages from this litigation. These factors have led to exaggeration. I do not think that the plaintiff has a somatoform disorder in the sense that I have referred to earlier; at least I am not persuaded by the evidence to make a finding to that effect.

It does not follow however that everything apart from the limited physical consequences of the accident should be disregarded as deliberate exaggeration by the plaintiff. This plaintiff's personality has produced an exceptionally severe reaction to what is probably a moderately severe and persistent whiplash injury, and that should be reflected to some extent in the assessment of damages. Once the element of exaggeration is stripped away (a very difficult task and I think impossible to do with precision) the subjective suffering in fact experienced by this plaintiff from this accident was undoubtedly caused in the legal sense by the injury and thus by the actions of the defendant.

There remains however the question of whether this situation is susceptible to treatment by way of psychiatric or psychological counselling. Most of the psychiatrists who thought that there was some genuine problem thought that the plaintiff would probably be helped by some form of counselling or other treatment, subject to his being willing to accept that he needs to learn to live with the pain, and that counselling can help him to do this (Dr Boulnois p. 126: Dr Redden p. 179). It may be that because of his personality he will choose not to accept this, and therefore refuse to participate in such counselling, but in circumstances where the expert evidence is that this would be likely to help him in my opinion it would be unreasonable for him to take that course. If he refuses to take advantages of appropriate counselling, in so for as this worsens his prospects, it is not a matter for which the defendant is responsible: Adsett v Noosa Nursing Home Pty Ltd (Appeal No.223/95, Court of Appeal, 6 December 1996, unreported, per Pincus JA at page 5-6 (McPherson JA agreeing)). As I interpret that judgment, the question of whether it is reasonable is to be decided objectively rather than by reference the plaintiff's subjective view in the light of his personality. Otherwise the plaintiff would show that it was reasonable for him not to take the benefit of counselling simply by persuading me that his view was that he did not want to undertake counselling. See also Smajic v Bonic (1968) 88 WN (PT.1) (NSW) 588 especially at p. 595.

In my opinion in the light of the evidence if the plaintiff does undertake counselling there is reasonably good prospects of achieving a significant improvement in his capacity to cope with his pain, and his ability to get on with his life. I think that I should allow twelve months for that to take effect, and I should also make some allowance for the chance that the counselling will not be successful.

Overall therefore I think that the plaintiff has suffered a relatively severe whiplash injury, which caused significant pain for a few months, and has left the plaintiff with some continuing pain in the neck, although I am not persuaded by evidence which I am prepared to accept that he suffers severe continuous pain. I think that such pain as he has is likely to be permanent, but that with the benefit of appropriate counselling he will probably be able to make a much better adjustment to it than he has up until now. I accept that until now it has significantly disrupted his life, although in view of the exaggeration that I think exists in his evidence I am not prepared to find the disruption was anything like as severe as he claims. I think in the future with the benefit of counselling he will probably be able to lead a much more normal lifestyle than he has to date.

I assess the plaintiff's damages for pain and suffering and loss of amenities of life in the sum of $32,000, of which I apportion $15,000 to past loss. This is on the basis the plaintiff suffered a loss of 7.5% of bodily function as a result of the musculoligamentous injury to the neck, which is unlikely to get much better in the future: (Exhibit 14). I do not accept that the plaintiff is suffering from a somatoform disorder, but I think that because of his personality the consequences of this injury have been unusually severe to him, although this is likely to mitigate in the future if the plaintiff acts reasonably with regard to treatment. I do not accept that the plaintiff's difficulties in the lower back and the legs are attributable to the accident, or that the plaintiff has significant problems in the left arm or jaw which are associated with the accident. In making this assessment I have had regard to the following decisions as throwing some light on the appropriate level of award: Knowles v Butler (Forde DCJ, Plaint 1268/94, 19.4.96); Kuhler v Inghams Enterprises Pty Ltd (Robin DCJ, Plaint 1109/95, 6.11.96); Hulstaert v Nola (Brabazon DCJ, Plaint 1805/95, 9.8.96); Darling v Mapleminster Pty Ltd (Skoien DCJ, Mt Isa Plaint 32/94, 14.2.96); Radel v Larson (Nase DCJ, Gladstone Plaint 8/94, 9.3.95); Wucherpfennig v Mallan (Quirk DCJ, Plaint 1771/93, 29.5.95). I also considered Chandler v Bailey (Kiefel J, Townsville No.189/90 10.10.94) and Tree v Marrs Carrying Services Pty Ltd (Cullinane J, Townsville No.249/95,25.6.96) although I regard them as cases where the plaintiff was significantly worse off.

With regard to past economic loss, the plaintiff was employed by a builder, Mr Walsh for about three to three and a half years starting in about 1986 (p. 196). At that time the plaintiff was working as a carpenter, having previously qualified (p. 198 but see Exhibit 28 where the plaintiff asserts that he qualified in 1991). He described the plaintiff as a capable carpenter, but had not employed him since then. He was originally put off when there was a downturn in work: p. 197. Mr Walsh said that carpenters had been paid $18 to $22 per hour in the last three years (p. 196) and there would be periods when employed carpenters were looking for work (p. 199).

There was evidence from the plaintiff that in 1988 and 1989 he was working for a builder John Cameron building houses on the Gold Coast: p. 9. However the detailed information as to the plaintiff's pre-accident earnings are only available from the year ended 30 June 1991. Apparently after the stint with Mr Cameron the plaintiff was working as a self-employed carpenter doing sub-contract work for builders. In that year the plaintiff had a taxable income of $8,220, part of which was by way of social security benefits of $933, and earned business income of $ 12,019 (before deducting expenses): Exhibit 28. The plaintiff conceded that several months during this year he was not working: p. 98. In the following financial year his position was even worse, gross business income of $6,185 producing a nett business income of $1,351; he also received social security benefits of $5,863: Exhibit 28. The plaintiff said that he was unemployed for about forty weeks in that financial year: p. 98. He also suffered a very minor injury that year: Exhibit 28. In the following year, the last full financial year before the accident, he had a gross business income of only $2,530, which after expenses showed a loss of $1,482, and the social security income was even higher.

The plaintiff's difficulties over this period were attributable by him to a problem that he had with Telecom. He said that when he was starting up as a self-employed carpenter in 1989 Telecom omitted his entry from the Yellow Pages and the White Pages: p. 96. This caused difficulties the following year, when he said he was still having problems with Telecom: p. 98. He had some ongoing battle with Telecom over a bill for $ 152.95 (p. 96), and he said he was still writing letters about it. He said that he could not survive without these entries (presumably as a contracting tradesman), that people could not find him to fill in gaps in employment (p. 97). He blamed Telecom for the failure of his carpentry business: p. 101; he said there was no other reason (p. 103) but that one. One reason which is suggested by Exhibit 28 is an entry that on 25 February 1993 the plaintiff completed two years of study to become a musician. There was evidence that he was active with various bands, and indeed there was some evidence from his brother (p. 209) to suggest that he had had some involvement with bands after the accident, although the brother denied that this generated any income (p. 210). There was also evidence that he did a lot of surfing before the accident. It may be that the real reason why the plaintiff did not make more money out of carpentry during this period was that he just did not bother to try, but that was not his evidence, and on the whole I think that the Telecom dispute was probably the main cause.

In that part of the 1993-94 financial year prior to the accident (37 weeks) the plaintiff earned gross income as a carpenter of $19,232: Exhibit 28. There was also some income as a musician; after deducting business expenses his total income before tax from both sources for the period of 37 weeks was $15,115: p. 191. This is a weekly rate of $408.50, the equivalent of an annual gross income of about $21,250, and after deducting tax and Medicare levy of $340 nett per week. The plaintiff had been working on Stradbroke Island for his brother in the period leading up to the accident: p. 9,200. It is not clear what this period was, but his evidence suggests that he was earning about $900 a week gross during that period: p. 201. On the basis of that figure he can not have been employed for anything like the whole of the 37 weeks. The plaintiff claimed (Exhibit 28) that at the time of the accident as a result of working for his brother and doing part-time work as a musician at a hotel on Stradbroke Island he was earning a total of $696 nett per week. On that basis even during that 37 weeks period he would have been unemployed a little over half the time.

The plaintiff said that he “generally stuck with my brother because he had more work” (p. 10) but he would try to fill in the gaps in his work schedule by ringing other builders or carpenters. His brother also said that he would prefer to employ the plaintiff, because of the relationship: p. 204. Although the brother said the plaintiff was a fantastic worker (p. 200) and painted a glowing picture of the plaintiff's prospects had it not been for the accident (p. 200-1) I do not accept this evidence. It does not seem that the brother's support was of much assistant to the plaintiff during most of the period of several years prior to the accident, and the brother's capacity to assist post-accident would have disappeared when he bought a yacht and went sailing on the Great Barrier Reef (p. 207). The brother was only employing one carpenter at the present time (p. 204), but he was able to keep himself busy as he had not been on unemployment benefits for a long time. I am not prepared to accept Scott Riseley's evidence as reliable: for example he said that the plaintiff had developed his limp right after the accident (p. 205) which I am satisfied did not occur. I think he was simply trying to be helpful for his brother with his evidence.

The difficulty this leaves me in is that the evidence did not suggest that there was anything unusual about the plaintiff's earning in the period immediately prior to the accident, but plainly it was not typical of the plaintiff's earnings in the period prior to the accident covered by the figures in Exhibit 28. There was no explanation put forward which accounts for it. It may be that the plaintiff's brother really was trying to get him more actively involved in the building industry; on the other had it may be that the plaintiff was actually helping out his brother by doing this work. The job was on Stradbroke Island, and apparently they had to live on the Island while doing the job (p. 206), and it may have been difficult for the brother to obtain carpenters who were prepared to do that, at least at the rate being paid to the plaintiff.

It was argued that the plaintiff had settled down and become a regular worker just prior to the accident, and that this was shown by his entry into a de facto relationship at about the same time: p. 10. I do not find this argument persuasive. The de facto relationship fell apart very quickly after the accident (pp 11-12) which suggests that there was not much holding it together in the first place. I am not persuaded that the accident happened just after the plaintiff had turned over a new leaf, and begun to exploit his earning capacity which he had previously neglected in the interest of fighting with Telecom and enjoying life. I think it is much more likely that had the accident not intervened the plaintiff would in the future have gone on in much the same way as he had in the past. The plaintiff was 33 at the date of the accident (Exhibit 28).

I think it probable that the plaintiff's earnings after the accident would have been much the same as his earnings before the accident had it not intervened, although I should make some allowance for the possibility that they may have been higher. I think it is of some significance that no one apart from the plaintiff's brother was called who could say that he had employed the plaintiff recently prior to the accident and found him good value for money as a carpenter, and who was in a position to give an objective assessment. The plaintiff's average weekly earnings from carpentry in the years ended 1991, 1992 and 1993 were $140, $26, and a loss of $28.50. Averaging the nett weekly income (ignoring social security benefits) for these three years and the period prior to the accident produces about $120 nett per week. On this basis I think that a figure of $250 nett per week makes reasonable allowance for the plaintiff's demonstrated earning capacity, and the possibility that he might have knuckled down to some serious work if the accident had not intervened. This assessment I think is reasonable bearing in mind that I do not accept the plaintiff or his brother as being generally reliable witnesses.

I therefore assess past economic loss at $250 per week for 3.2 years, $41,600. With regard to future loss, in the light of medical evidence I am prepared to accept that the plaintiff is unlikely to work again as a carpenter, but I do not think he is permanently unemployable. If he makes reasonable efforts to deal with his personality problems I think that he will probably achieve some improvement to the point where he would have some earning capacity. So far as the physical disability caused by the accident is concerned, the plaintiff would be prevented from only heavy manual work (Exhibit 14). I think it is not difficult to conclude that with the benefit of some counselling the plaintiff would probably within a reasonable time have regained sufficient capacity for work to be able to earn $250 nett per week. That is after all not a very high target, since it would be achieved by some part-time or casual work at a low rate of pay. Nevertheless I think that it is appropriate to make some allowance for the possibility the plaintiff has permanently lost all or part of such earning capacity as he had at the date of the accident. I propose to allow $15,000 for loss of earning capacity for little over one year, to allow time for counselling to take effect, and a lump sum of $40,000 for loss of earning capacity thereafter. Future economic loss component will therefore be $55,000. I will allow the cost of future medical treatment (psychiatric or psychological counselling) in the sum of $5,000. I should add that I am not persuaded that the plaintiff has as a result of the accident permanently lost to any significant extent such capacity as he had prior to the accident to earn income as a musician. The figure of $250 per week is based on figures which include income as a musician, and therefore covers temporary loss of that capacity.

There has been a very substantial claim for gratuitous assistance, principally in respect the plaintiff's mother: Exhibit 30. There are considerable difficulties with this claim. Apart from the fact that I am not generally prepared to accept the evidence of the plaintiff, the evidence of the plaintiff's mother was very vague about where the plaintiff was living from time to time, and what she was doing for him: see pp 216, 221, 225, 226. It seems that a few days after the accident the plaintiff moved into a house belonging to his brother (p. 11), where he was a few minutes away from where his mother was then living on a boat (p. 217 - not right next door as he claimed: p. 11). There is some vagueness in the evidence about just how long he had the house to himself, and indeed how long he stayed in that house, but he claimed to have stayed there for approximately five (5) months: (p. 148). Apparently he then moved into a unit and he has lived in a series of units since then. His mother was regularly coming to him when he was living in the house, and was no doubt doing a great deal for him, and I think it likely that even after he has moved into a unit he has in fact received a great deal of assistance from his mother. It does not follow however that he had a need for that assistance as a result of the accident. Indeed his mother's evidence was that the plaintiff could do things but that he was in pain and it was easier for her to do it for him: p. 223. According to Dr Gillett (Exhibit 13) by some five weeks after the accident the plaintiff was able to fend for himself with basic food items, but was unable to do household tasks. By May 1995 (Exhibit 14) the account given to Dr Gillett was that he was able to do some washing and cleaning in the house, and his mother had to help him “for a considerable period of time.” He told Ms Leivesley in May 1995 that he was helped daily by his mother for about eight months after the accident, and thereafter she visited weekly to help with washing, cleaning and driving long distances: Exhibit 18. I think it likely that for a period of three or four weeks after the accident the plaintiff was not able to do much for himself, and that for several weeks thereafter he required assistance for household tasks. I think however that the amount of actual assistance he needed would have tapered off to the point where it was fairly minimal. I am not persuaded that thereafter he in fact needed more than assistance with heavy cleaning tasks. I will allow five hours per week for the first six months after the accident, as an average figure, and one hour a week thereafter. He is currently living in a one bedroom unit: p. 193. I am not persuaded that plaintiff has had an actual need for greater assistance than this as a result of injuries suffered in the accident. On this basis the allowance for past gratuitous care, at the agreed rate of $9.50 per hour, comes to $2,600 (with some rounding). For future gratuitous care I will allow a lump sum of $1,000. I think that once the plaintiff learns to adjust to his condition there will not be much for which he will actually need assistance.

Special damages were claimed in accordance with a list provided: Exhibit 31. The only item which was actually disputed by counsel for the defendant was the last item, an amount of $450 claimed for an MRI scan, and I am not persuaded that that was necessary as a result of the accident. I would also disallow the cost of the walking stick. I am wary about the special damages because I am not prepared to treat the plaintiff as being generally reliable, but in all the circumstances I will allow by way of special damages the sum of $5,000. I should also make some allowance for the cost in the future for painkillers and treatment for the neck. I will allow the sum of $2,500.

Conclusion:

I therefore assess as follows:

I therefore give judgment for the plaintiff for $144,700 together with interest of $3,572.