Kilner v Turner & Anor[2013] QDC 195

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   Mr Kilner, the plaintiff in this matter, claims damages for personal injuries and consequential loss suffered by him as a result of a motor vehicle accident which occurred on 12 March 2009. The plaintiff was travelling as a passenger in the front seat of the 1^st defendant’s vehicle on his way home from work when it was struck from behind causing it to collide with another car coming towards it. Liability being admitted, quantum with respect to damages, was the only issue at trial.

2. [2]
   The plaintiff claims that as a result of that accident he suffered the following injuries:

• soft tissue injuries to his neck and right shoulder
• injury to the retro patellar surface of his right knee
• major depression and an adjustment disorder with anxiety and depressed mood.

3. [3]
   The defendants admit that the plaintiff suffered some injuries as a result of the accident (neck and right shoulder soft tissue injuries) but deny any right knee injury or psychiatric condition as alleged.

The plaintiff’s evidence at trial

4. [4]
   The plaintiff was born on 16^th December 1958. He was therefore 50 years old at the time of the accident and is currently 54. Prior to the accident, he stated that he had been working in trade related work. He had obtained a certificate as a fitter and turner in New Zealand where he had been born (ex 42). He moved to Australia in the late 80s and said he had been in paid jobs that involved basically ‘anything to do with machinery’. At the time of the accident, he was employed by PBL Trailers as a tyre fitter, having been employed there since 2 June 2008. Prior to that however he recalled that he had been employed at various places over the preceding years including Golden Circle Limited (cleaning machinery), having a day shift job at a furniture store, Saunders Welding and Blue Recruit (welding jobs) but wasn’t certain whether during 2007 he had worked at Nathan Trailers or not. He did recall however having an operation for a hernia injury during late 2007 for a work related injury and receiving work cover benefits after lifting a heavy weight on his own.

5. [5]
   The plaintiff described his employment at PBL Trailers. His job was that of an employed tyre fitter. He said the duties associated with that position involved him finding the rims for tyres that were stacked from ground height and up on site, putting the rim on the tyre fitting machine (standing at waist height), cleaning it, putting a new tyre valve in and fitting the new or second hand one. He stated that he mainly used his legs and arms to do the work as once the wheels were ‘all fitted up’ he had to load them onto a trolley and then take them to whoever needed them in the factory (floor). He stated that there was not much kneeling involved with a standard rim but with the bigger ones (four wheel drive and the like) that it was different. He gave evidence that had he not been injured in the accident he would still be there as he had ‘wanted to stay there for the rest of me days’. He denied returning to any form of employment after the accident at all.

6. [6]
   He gave evidence that he was aware of a business called Wheels 4 U and that although the business was registered in his name he had never operated it. He stated he had simply helped get it off the ground for Mr McGregor (‘Ted’) by showing him the job from scratch including showing him where to get stuff from, where to take it, who to see etc. He stated that he had allowed Ted to use his ABN and personal account as they were linked and that he wanted to help Ted who was going through some tough times after losing his lady partner. He stated that all the monies were received into his account for that business but that it went to Ted and that while he didn’t do any of the physical work related to that business, he would spend his time on the phone finding stuff (T1-37). At no stage during the course of his evidence did he accept that he was involved in the running of the business at all or receiving any remuneration in respect of it.

7. [7]
   The plaintiff also described certain other medical conditions which he had been suffering prior to the accident which included Hepatitis C which he said was treated and cured in 2000. He also confirmed he had and still has cirrhosis of the liver and had been hospitalised in respect of that. He stated he also suffered from ‘welder’s lung’. He mentioned that he had suffered a shoulder injury related to a work incident in the 70’s but that he had suffered no further problems with it after an initial period of recovery from it. He also recalled having a kidney problem in 2011 but that after he was treated (by dialysis) he hasn’t had any problems in that regard since.

8. [8]
   He denied having any problems with his neck, right shoulder or knee prior to the subject accident or that he had ever suffered from any psychiatric problems before the 12^th March 2009. The plaintiff stated that like everybody he had also had a bit of problem here and there in life but had never sought or been treated by a psychiatrist or taken any anti-depressant medication.

9. [9]
   The plaintiff also gave evidence that prior to the accident he had led an active social life, stating he was ‘out and about’ all the time. He mentioned going to car and bike shows, race meets, playing golf at the driving range and riding a mountain bike primarily to work and socialising with friends.

10. [10]
    The plaintiff gave evidence that since the accident however he has not been able to engage in those activities. Indeed, he stated that ‘I just don’t go out’ (T1-31). He said that where he currently lived it was a problem because he had two flights of stairs to get to his bedroom and he does only simple domestic chores, like doing the dishes, with his good left arm. He stated that he felt like rubbish (emotionally) after the accident as he couldn’t go back to work because of his injuries. He stated that was because he wanted to return to PBL Trailers as he was working with guys he had known for years and it was just like a second family to him (1-32). He said he then became reclusive for months after the accident, staying in his room playing on the computer or just sleeping and generally feeling ‘down in the dumps’. That was how he described the way he was coping with his moods. He stated that those feelings or moods have continued since the accident and that he had started drinking as much as he could hold, which was more than he had done previously in order to cope. He stated that he had tried to give up drinking like that since the accident and that his success in part was helped by having a good housemate because she doesn’t approve of it (T1-33). He admitted that he had however lapsed back into drinking off and on during this period.

11. [11]
    He couldn’t recall what pain medication he had taken in the past but thought he had taken Tramadol and Panadol Osteo for his physical ongoing pain. He stated however that he was not taking any pain medication currently and that he was just using heat pack remedies by way of self help.

12. [12]
    The plaintiff was taken through his criminal histories (New Zealand and Queensland) during cross examination. Not surprisingly he couldn’t recall all events or entries dating back to the 70’s but did recall having served periods of imprisonment in New Zealand but couldn’t be specific since receiving ‘the belt on the head in the accident’ (T1-40). He was vague regarding the events in respect of a serious driving offence which occurred in Queensland in 1998 but recalled that he had gone to jail in 2003 in respect of it. His evidence regarding the delay in the prosecution of the matter was that he had been living in New South Wales at the time but once he found out about it, he had returned to Queensland to have it dealt with by handing himself into Police. (T1-44). He conceded however that he had in fact been in Queensland during 2001 for a 48 week program to treat his Hepatitis C, living in Zillmere at the time.

13. [13]
    The plaintiff also gave evidence that while he had never held a Queensland Drivers License, he had held a New Zealand and Victorian Drivers’ License in the past. He specifically denied being picked up for drink driving only a couple of weeks ago, the alleged date of that offence being 27^th March 2013. (T1-46). He also stated that any request by him of a social worker while in hospital on the 23 July 2003 to contact the police regarding a court appearance was because he was worried he would miss this case (T1-47) and that his request had nothing to do with any pending criminal or traffic matter as it related to him.

14. [14]
    The plaintiff also gave evidence (T1-60) that an entry contained in the hospital notes transcribed on 19^th July 2013 of ‘ongoing alcohol – collateral from flatmate to the effect of ‘a carton of beer per week, plus wine plus spirits. Patient ambivalent re effect of ongoing drinking on liver disease’ was his flatmate’s drinking history and not his. He accepted however under cross examination that a doctor (Professor Leggett) had ripped right into him about his drinking during his admission.

15. [15]
    The plaintiff was also cross examined extensively regarding his past work history. During that examination, the plaintiff conceded that he had not filed a tax return since 2005 because the Child Support Agency had taken the lot the last time he had filed one, so from that day onwards he had deliberately chosen not to lodge one (T1-64).

16. [16]
    He also admitted that he had registered the business name of Wheels 4 U on the 21^st January 2007 but denied he did so with a view of ever operating that business in his own right for profit or indeed, that he had ever used it (T1-69). The plaintiff stated that he believed the registration of that name at that time was simply a continuation of it from his days when he worked for Nathan Trailers as a sub contractor in the early 2000s (T1-68). He stated that because it had not cost him anything to register it, he had simply done so.

17. [17]
    When questioned about what work if any he performed during the period 19^th November 2006 (when he left his employment at Saunders Welding) and 12^th July 2007 (when he commenced his employment with Blue Recruit), the plaintiff gave evidence that even though he couldn’t specifically remember, he believed he had taken around 6 months break and went for a bit of a tour in Australia (T1-70). He specifically denied running a business, setting up one or even receiving Centrelink during that period.

18. [18]
    The plaintiff also conceded that he did not have any paid employment during the period 25^th October 2007 to 2 June 2008, bar a day in March 2008, that period being approximately 7 months in total prior to his commencement at PBL Trailers. When questioned about phone transfers of monies being made to his bank account (ex 50(50)) from April 2008 onwards and whether he was involved in tyre rims at that time, he replied ‘I’m not sure’ (T1-72). The plaintiff denied however knowing what the phone transfer of monies even were and disavowed the suggestion that perhaps a friend or family member may have simply been giving him money at that time. The plaintiff gave evidence that he thought he must have been working for somebody but he just couldn’t remember exactly who. He stated that he would ‘really think on this one’ and that it was the first time he had even heard of this ‘phone banking thing’ (T1-75, 76).

19. [19]
    The plaintiff admitted during cross examination that he received a SunSuper hardship payment on 16^th April 2010 and that his WorkCover payments for the accident had earlier ceased by that time (10^th September 2009). He stated that he was the one who advised them to stop paying him because he wanted to get himself off it (T1-79) as he wanted to get back to work. He stated that he had wanted his old job back (PBL Trailers) but stated under cross examination that he wouldn’t have been able to manage it because he believed it was too physical for him as the ‘big stuff was heavier’. He would not however concede that he was therefore intending to run or set up his own business of Wheels 4 U again at the time. The plaintiff was asked about a payment he had made of $520 to Extreme Signs Copy at Brendale. The plaintiff confirmed that he believed it was for some business cards which he had printed for Ted’s business, Wheels 4 U, but couldn’t recall the exact fee which he had paid. He stated however that he had done that only to help out his mate (‘Ted’) to get him up and running. The plaintiff also confirmed under cross examination that he had applied for the hardship payment from SunSuper on the basis of needing it for Child Support payments and to pay outstanding fines (ex 63). The plaintiff conceded however that he had not used any of that money for that purpose (T2-82). He stated that he had used the money to set up Ted’s business and to give one of his girls (daughter) a hand after the earthquake in New Zealand (T2-82)  The plaintiff was also asked about payments relating to petrol made during April 2010 onwards, as evidenced by his bank statement records tendered. He agreed that he had been paying petrol bills for others which had included his flatmate Eva and his friend Donny Turner as they had been driving him around (T1-83). He also confirmed that he had also gone to Coopers Plains to buy some tyre rims (‘mags’) for himself in April 2010 but that someone had driven him out there. He couldn’t remember who. The various petrol outlets referred during evidence included Moorooka and Eagle Farm.

20. [20]
    The plaintiff was also shown several tax invoices (ex. 50(53), (54) and (55)) which he denied contained his handwriting. He stated that it was Ted’s writing on the invoices shown. When questioned specifically about 114 rims referred to in Invoice 24, the plaintiff replied that he would source them ‘by sitting on the phone for about three or four hours and start ringing’ (T1-86). He also stated that you could get 114 rims from the Caboolture Landfill and had received a lot from there for nothing and that he had gone down in Ted’s car for that purpose (T1-88). He stated that Ted would then take rims home and would clean them up but he would only be telling Ted how to do it, not demonstrating how to do it (T2-77). He stated in evidence that he wore a mask on those occasions. He said that helping Ted had been a hobby for him, ‘it kept me mind busy, I don’t want to sit in a house all day staring at four walls’ (T2-87).

21. [21]
    The plaintiff was also referred to certain entries in his bank statement during May, June and July 2010 showing deposits from Nathan Trailers. The plaintiff didn’t believe he could have had any dealings with Nathan Trailers during May as he thought he was in jail. He agreed however that those monies would have only been coming into his account as a result of the business being run by Ted. The plaintiff also conceded he was receiving Centrelink payments during that time but that it wasn’t their concern as the monies coming in related to Ted and not him (T1-96).

22. [22]
    The plaintiff also agreed that the Wheels 4 U business ceased in October 2010 and no further monies were received into his bank account after the 7^th October 2010 (from Nathan Trailers) in respect of it. The plaintiff initially stated in evidence that the business had ceased because he had himself gone to jail for non-payment of a fine relating to offences including driving while unlicensed on 10 December 2009 (T2-21). However he later stated in his evidence that the business has come to an end because he had found out in late September 2010 that Ted was a convicted child sex offender and he didn’t want anything further to do with him (T2-87).

23. [23]
    The plaintiff was also asked if he had supplied PBL Trailers with tyre rims prior to commencing work there, which he denied (T2-31). The plaintiff stated that the only time he had anything to do with supplying tyres to PBL Trailers was when he took Ted around after the accident and introduced him to Tony (‘Mr Bailey’) and Peter (“Mr Lindbom’) (T2-32)

24. [24]
    He was also referred to entries in his bank account statements relating to purchases of tobacco and alcohol. He agreed that those entries showed alcohol purchases but when asked if buying for somebody else or for himself, the plaintiff stated that he would buy for anybody as long as they were giving him cash so he could get the fly buys (T2-24; 2-86)). He was also referred to his consultation with Dr Lotz on the 2^nd July 2010 regarding the level of alcohol the plaintiff said he was drinking at that time (T2-85). The plaintiff agreed he had been drinking to excess and stated that he had made attempts to stop drinking completely since the accident. He says that his current lady friend doesn’t approve of his drinking or smoking but stated that he nevertheless had continued to purchase both alcohol and smokes since the accident. The plaintiff also stated that he still keeps drinks in the fridge for entertaining but not when his current girlfriend is over as she is a Muslim. (T2-86).

25. [25]
    When the plaintiff was questioned about the recent alleged offence of drink driving by him on the 27^th March 2013, he denied any knowledge of it (ex 64 and T3-16) but conceded that he knew the vehicle involved. He also was adamant that he would remember such an incident had he been involved and disavowed the suggestion that he may have memory problems that would prevent him from remembering it. (T3-17). The plaintiff produced a document to the court under re-examination relating to a person named Matthew James Kliner (ex 65) issued by the Department of Transport to his address in respect of a notification of an immediate disqualification of license taking effect from 27^th March 2013. The plaintiff stated that he did not know of any such person, a fact he had earlier in his evidence also alluded to (T1-48).

26. [26]
    The plaintiff was also asked during cross examination about his various consultations and statements said to have been made by him to Dr Dillon on 14^th May 2009 (T2-38); Dr Psaltis on 6^th September 2010 (T2-77); Caboolture hospital notes 13^th and 17^th September 2010 (T2-78); Dr De Leacy 30^th September 2010 (T2-80). On each occasion referred to, the plaintiff denied the suggestion that those statements had meant or had suggested that he had returned to work or had been working since the accident, a denial which he also made to Drs Pentis, McPhee, Lotz and De Leacy during his various consultations with them.

The orthopaedic evidence

27. [27]
    Dr Pentis and McPhee both provided reports (marked ex 1, 2, 3 and 41 respectively) and were called to give evidence in the parties’ respective cases.

28. [28]
    A careful examination of their evidence is that both doctors opined that the plaintiff had suffered soft tissue injuries in his neck (emphasis added) region as a result of the motor vehicle accident against a background of pre-existing spinal degenerative changes. Dr Pentis considered the residual impairment to be 6 to 7% of the whole person whereas Dr McPhee considered it to be no more than 5% of the whole person.

29. [29]
    In respect to the right shoulder (emphasis added), both Drs Pentis and McPhee considered the plaintiff to have suffered a soft tissue injury to his shoulder as a result of the motor vehicle accident. Dr Pentis considered the residual impairment to be 7.5 to 10% of the whole person with a third to a half attributable to the accident (ie. 2.5 – 3.3% to 3.75% - 5%) against a background of pre existing degenerative changes given his age. Dr McPhee however considered it to be 3% of the whole person given the range of movements in the shoulder demonstrated by the plaintiff as not being a true representation of his capabilities.

30. [30]
    In respect to the right knee (emphasis added), both doctors considered the plaintiff to have suffered a soft tissue injury to his right knee as a result of the motor vehicle accident. Dr Pentis considered the residual impairment to be 12 to 15% of the whole person with at least a third being attributable to the accident (4% - 5%). Both doctors noted that the only findings on the x-ray were some soft tissue calcification in the region of the tibial tuberosity consistent with previous trauma. Dr McPhee attributed no residual impairment however, in light of the fact that flexion of his right knee was 110 degrees which therefore did not qualify for a permanent impairment.

31. [31]
    Both doctors considered that his assessed residual impairment/s in respect of all injuries would nevertheless preclude him from being able to work as a welder and/or tyre fitter given the nature of that work. Both doctors had been told by the plaintiff that he had been unable to work and had not worked since the accident.

32. [32]
    When examining the plaintiff’s right shoulder (emphasis added), Dr McPhee noted that the range of movements demonstrated by the plaintiff were not a true representation of his capabilities. Dr Pentis in his 2^nd report also admitted that he was unable to give a true opinion as to what residual impairment the plaintiff had been left with and confirmed during his evidence that he simply had given his best estimate. He also confirmed that he didn’t have any x-ray of the right shoulder to review for that purpose (T2-43).

33. [33]
    Dr McPhee also noted in his report that the plaintiff failed to disclose voluntarily the previous symptoms which he had suffered from relating to his hands or that he had in fact suffered a significant twisting injury to his right knee (emphasis added) in late August 2009 as a result of a domestic incident at home (unrelated to the subject accident). The plaintiff also failed to disclose this fact to Dr Pentis during the first occasion he was examined by him. The x-ray taken of the knee after the accident (12 March 2009) showed no problem other than calcification which both Drs Pentis and McPhee reviewed and considered to be from past soft tissue trauma. The respondent’s initial hospital chart also showed normal power in both knees after the motor vehicle accident (ex 7, p25) however it did note some reported complaints of an injury to the knee by the plaintiff.

34. [34]
    Dr Pentis, unlike Dr McPhee, did not appear to have the advantage of seeing a further x ray taken of the right knee on 21^st August 2009. Dr Pentis in any event  noted in his 3^rd report that it was difficult for him to say what effect and to what degree the subsequent unrelated twisting injury to his right knee had played insofar as his continuing reported complaint relating to the knee.

35. [35]
    The observations upon clinical examination made by Dr McPhee is also consistent with that of Dr Dillon (ex 8 and 9) regarding the plaintiff being prone to having symptoms out of proportion to the physical findings. It was also noted by Dr Dillon on 14 May 2009 that his right knee symptoms had settled.

36. [36]
    It is accepted that both Drs Pentis and McPhee had the same advantages during their respective examination of the plaintiff. However, Dr McPhee’s overall assessment of the plaintiff’s physical injuries is in my mind to be preferred in light of his consideration to weigh the symptoms which were being reported against that of objective fact. His clinical observations were also consistent with those observed by Dr Dillon with respect to the over representation by the plaintiff during examination. Dr McPhee’s comments regarding the plaintiff’s reluctance to also initially disclose relevant medical matters to him is also consistent with the plaintiff’s own failure to be more than forthright even to Dr Pentis during his last consultation with him regarding any subsequent relevant medical illnesses or conditions since Dr Pentis had last seen him on the 13^th July 2010. That failure included the admissions to hospital during September 2010, February 2011 and May/June 2011 for serious medical conditions for 5, 10 and 28 days respectively, which the plaintiff could not have conceivably forgotten about.

The psychiatric evidence.

37. [37]
    Drs Lotz and De Leacy both provided reports (marked ex 5, 6 and 40) and were called to give evidence in the parties’ respective cases.

38. [38]
    Dr Lotz diagnosed a major depressive disorder compounded by an alcohol abuse disorder in his first report (9^th July 2010). That opinion was the same in his second report (7 November 2011). He assessed the plaintiff’s permanent impairment at 19%.

39. [39]
    Dr De Leacy on the other hand in his report (6^th October 2010) diagnosed an adjustment disorder with anxiety and depressed mood. He assessed the plaintiff’s permanent impairment at between 5 – 7%.

40. [40]
    Both doctors had obtained history from the plaintiff. Both doctors stated in their evidence that history is of particular importance in assisting them in providing their opinions. Dr De Leacy also considered that his own observations during the clinical consultation process also assisted him in that regard (1-42). Dr Lotz regarded the plaintiff’s mood as being depressed when he saw him. While he did not state as much, his own observations undoubtedly were also taken into account during the clinical consultation process with the plaintiff. While Dr De Leacy also noted in his report that he considered the plaintiff’s mood to be both depressed and anxious at the time of his consultation, he nevertheless stated in his report (page 7) that if the plaintiff did in fact have major depression then he would have considered his mood would have been far more depressed than it was. Thus I am unable to accept the submission made on behalf of the plaintiff that Dr Lotz’s opinion ought to be preferred to that of De Leacy in circumstances where both doctors had the same advantage of observing the plaintiff during consultation and both obtained a history from the plaintiff as it related to his reported pain and ongoing disability as a result of the effect from the injuries which he had suffered.

41. [41]
    Counsel for the plaintiff submitted that there was no reason why I should not accept the assessment made by Dr Lotz to that of Dr De Leacy particularly in view of the fact there were admitted physical injuries arising out of a serious motor vehicle accident in this case. He pointed out that even Dr De Leacy considered that fact of admitted physical injuries together with reported pain and disability were highly relevant in assisting his conclusions.

42. [42]
    That submission in my mind however overlooks the following important point.

43. [43]
    Dr De Leacy’s evidence was that the effect of any injuries together with reported pain and disability if it is accepted (emphasis added) would be a defined stressor for the purpose of determining whether a patient had suffered an adjustment disorder or not (T3-43).

44. [44]
    The submission made also overlooks other relevant matters.

45. [45]
    While it is true that on the pleadings there has been an admission with respect to some (soft tissue) injuries to the neck and shoulder regions having been suffered by the plaintiff as a consequence of the accident, there has never been an acceptance by the defendants as to the level or degree of any reported ongoing pain and disability as claimed by the plaintiff. Also, the defendants have always denied that any psychiatric injury has arisen directly related to the subject accident.

46. [46]
    While it is also true that both doctors took into account the effect that any admitted injuries and any pain and disability would have had for the purpose of their opinions, it is also true that both doctors also agreed that whether or not the reported pain and disability given to them by the patient was accepted as true was also a determinative factor regarding their opinion as to whether a patient had suffered a psychiatric condition or not (T3-44)

47. [47]
    Accordingly, the history provided by the plaintiff during the various consultations with the respective psychiatrists regarding his reported ongoing pain and disability was highly relevant. A careful examination of the history provided by the plaintiff to the respective doctors however, was not only inaccurate in respect to many material aspects of it but was also at times completely false.

48. [48]
    For example, during his first consultation, Dr Lotz relied on a history given to him by the plaintiff that his alcohol abuse was somewhat of a post accident phenomenon. He had told Dr Lotz that he only used to drink on a Friday and Saturday night prior to the accident. This fact was clearly not made out on the available evidence for consideration. Dr Ringrose’s report confirms that he had sustained liver damage before and after the accident as a result of excessive alcohol consumption, a fact confirmed in evidence by Dr Smith (T2-69).

49. [49]
    Dr Lotz also accepted what the plaintiff had told him at his second consultation (17^th October 2011) which was that he had ceased drinking to the level and extent he had previously (home made spirits up to one litre a day). However, less than approximately 3 months after Dr Lotz’s first consultation, the plaintiff had advised Dr De Leacy in September 2010 that he did not drink alcohol anymore because he could not afford to but would drink if someone offered him one.

50. [50]
    The plaintiff also told Dr Lotz that he was fit and active prior to the accident with no medical or surgical history, a fact simply untrue on the available evidence and a fact that the plaintiff would well have known to be completely false. For example, he told Dr Lotz on the 1^st occasion that the doctor saw him (2^nd July 2010) that had no medical or surgical history prior to the motor vehicle accident. However the records show (a fact the plaintiff even conceded at trial) that he had received treatment from the Royal Brisbane during 2001/2002 over a 48 weeks for hepatitis C. The plaintiff also conceded during his evidence that he had been given consideration for a liver transplant in 2006 because of progressive cirrhosis of his liver as a result of ongoing excessive alcohol consumption but that he never attended the follow up appointments (T1-66). Dr Lotz confirmed during his evidence that he had been unaware of those conditions and conceded that they would have been relevant lifestyle problems (T2-62, 63). Notwithstanding these serious medical conditions, the plaintiff continued to be untruthful to Dr Lotz regarding his medical history even when he saw him again on 17^th October 2011.

51. [51]
    During that consultation, the plaintiff again failed to tell the doctor of his past serious medical conditions or mention even his more recent serious medical conditions (kidney failure in June 2011 and renal unit treatment and hospital treatment in September 2010 related to COPD).

52. [52]
    He also told Dr Lotz during his first consultation in July 2010 that he often stayed in bed all day unless encouraged by friends to get out of bed, that he had become socially avoidant and did not leave the house unless encouraged to do so by friends. This evidence is in complete conflict with the evidence which the plaintiff himself gave at hearing. For example, the plaintiff conceded that he was undertaking tasks for the Wheels 4 U business from April 2010 such as organising business cards, would spend several hours on the phone (up to 3 to 4 hours at a time) in order to source tyre rims for the business, that he went out numerous times with Ted to actually source the tyres all over Brisbane such as out to the Caboolture landfill and the like, that he would introduce Ted to other contacts personally and actively assist Ted by showing him ‘the business’. He also said he would shop online for friends to obtain items for them (T1-36). The psychiatric impairment rating of 17 (see table attached to the first report) made by Dr Lotz, based on the history given by him, is clearly incorrect particularly as it relates to any reported impact upon the plaintiff’s social and recreational activities, travel, social functioning, concentration, persistence and pace, having regard to the plaintiff’s own evidence at trial.

53. [53]
    He also told Dr Lotz during his first consultation with him that at the time of the accident he was working as a Welder, a fact which was not in fact correct as he was a tyre fitter and was not involved in any welding work. He also told Dr De Leacy that he could not work since the accident as he had too many pains and was too psychologically distressed to concentrate on work, a fact not borne out by his own evidence at trial which I have already referred to.

54. [54]
    During his 2^nd consultation with Dr Lotz in November 2011, the plaintiff said that he ‘continues to have severe anxiety in traffic, that he hates being in a car, has to sit in the back seat and had been unable to drive since the accident’. The plaintiff again failed to tell the doctor that he had gone out regularly in a car with Ted all over Brisbane with respect to the Wheels 4 U business to source tyre rims during 2010 and that others would also drive him around and he would pay for their petrol. It is noted that some of those locations were many kilometres from where the plaintiff lived. Significantly, he also failed to tell the doctor he had been convicted of unlicensed driving in January 2010 at which time his license was disqualified and that was the reason why he wasn’t driving. He also failed to tell him that he had gone to prison in October 2010 regarding that and other traffic related matters. He also told Dr De Leacy on 30^th September 2010 that he had surrendered his license, that he had a reasonably good driving record and no criminal record, both of which were completely untrue given the available evidence at trial, factors which the plaintiff would well have known about (ex 46 to 49). He also told Dr Lotz during his 2^nd consultation that the trip down from Caboolture to the Gold Coast for the consultation was the most frightening two hours of his life notwithstanding his own evidence at trial that he had been travelling all over Brisbane as already stated.

55. [55]
    During his consultation with Dr De Leacy, he also told him that he was frightened in motor vehicles and will not consent to being a passenger. That statement is a complete contradiction to the evidence which he gave at trial. He also told Dr De Leacy he had difficulty with concentration (on work), which again is not borne out by his own evidence at trial regarding the tasks which he admits he was undertaking with respect to Wheels 4 U.

56. [56]
    He also told Dr De Leacy that his social life had declined significantly and that he did not go out. Those statements again are difficult to reconcile as being even remotely true in light of his own evidence at trial during this period which was the complete opposite. He also failed to tell Dr De Leacy about his significant past medical history other than a hernia operation and a right shoulder injury during the 70s. He failed to report to the Doctor the significant and potentially life threatening medical conditions from which he had been suffering prior to the accident.

57. [57]
    He also told Dr De Leacy that he had been raised in Melbourne, Victoria, a fact that was clearly untrue in light of his evidence at trial which was that he only came to Australia from New Zealand in the late 80s.

58. [58]
    Having regard to the matters to which I have just referred, I find that the plaintiff was an untruthful and unreliable witness. Each doctor’s opinion was dependent upon the truthfulness and accuracy of the history reported to them, in particular with respect to any ongoing pain and disability. The doctors both accepted this fact. Counsel for the plaintiff submitted that the doctors also relied on their clinical observations and assessment of the plaintiff during their respective consultations with him. While that submission is true, the substantial matters to which I have just referred cannot be overlooked. The factual premise upon which the Doctors’ opinions were based was either materially untrue or simply misleading. It follows that I cannot be satisfied on the balance of probabilities that the plaintiff suffered any psychiatric injury at all as a result of or consequence of the subject motor vehicle accident as suggested by either Drs Lotz or De Leacy. I have also taken into account Dr Lotz’s evidence at hearing which was that alcohol abuse itself can cause depression (T2-63). This fact is particularly significant in this case where the evidence shows that the plaintiff was already abusing alcohol prior to the subject accident for many years. I have also taken into account the fact that Dr Lotz was unaware of the plaintiff’s significant health issues and the lifestyle choices he was even making, such as alcohol abuse, prior to the subject accident which he agreed during his evidence would have been relevant considerations for the purpose of forming his opinion (T2-62). Because the plaintiff was less than frank or even truthful to Drs Lotz and De Leacy, I find that they were not able to properly make an informed opinion about the plaintiff’s likely mental state prior to the accident in order to determine what change, if any, the subject accident had subsequently upon it.

59. [59]
    In addition to the evidence to which I have already referred, there was additional evidence, which I have no reason to reject, which also confirms that the reported level of symptoms stated to Drs Lotz and De Leacy were simply not true.

60. [60]
    Mr McGregor (‘Ted’) gave evidence that during the period April to October 2010 (none of which was challenged and during a time when both doctors initially saw the plaintiff), that the plaintiff was going with Ted to the RSL to have dinner and was playing the pokies and the like (T3-30). Ted also gave evidence that this was a regular occurrence and that both he and the plaintiff were living comfortably (financially speaking), doing whatever they wanted to do when they wanted to do it ((T3-30). This is in direct contrast to the history given to the doctors by the plaintiff which was that the plaintiff had become socially avoidant, didn’t leave the house unless encouraged to do so by friends and that he was suffering the stress of loss of income and change in lifestyle.

61. [61]
    Accordingly, because of the reasons stated, I am unable to make any award for damages as it relates to any psychiatric condition claimed.

Future Economic Loss

62. [62]
    A claim has been made by the plaintiff in the sum of $101,500.00. This has been calculated on a loss of $625.00 per wk over five years, less greater than usual discount for vicissitudes of 30%. Counsel for the plaintiff submitted that but for Dr Ringrose’s evidence, there was no evidence upon which this court should conclude that the plaintiff would have ceased working in light of his evidence that he had intended to continuing working at PBL Trailers as a tyre fitter but for the accident. Counsel properly conceded that Dr Ringrose’s evidence was relevant insofar as any assessment of damages under this head.

63. [63]
    Counsel for the defendants however submits that no award for damages should be made in light of Dr Ringrose’s evidence and the limited prospects which the plaintiff would have had in any event on the open labour market.

Dr Ringrose’s evidence

64. [64]
    Dr Ringrose provided a report (ex 50 (43)) and also gave evidence at trial on behalf of the defendants.

65. [65]
    In his report dated 1^st August 2012, Dr Ringrose outlined the available medical data which he had available for consideration. He also summarised his diagnosis as the plaintiff suffering from some very serious medical conditions, noting morbid obesity, alcoholism and a 40 year history of smoking.

66. [66]
    In his report, using the prospective life tables and on the evidence presented for his consideration, and particularly in light of the fact of evidence of ongoing alcohol consumption, the combination of the plaintiff’s obesity, severe chronic obstructive pulmonary disease and cirrhosis of the liver with the complications affecting his portal vein and spleen, he considered the plaintiff’s life expectancy would be reduced by somewhere between 20 and 25 years.

67. [67]
    He noted in that report that the plaintiff’s life tables suggested a life expectancy of 32.16 years to age 85 years.

68. [68]
    In that report and during the course of his evidence, Dr Ringrose confirmed that while it was impossible to be scientifically precise with respect to life expectancy, his opinion remained the same. While he agreed under cross examination that his opinion in that regard could be regarded as a guided estimate (and not a guided guess) he still nevertheless stated that he had lots of available evidence of severe disease which he considered supported his ultimate conclusion.

69. [69]
    It is difficult to disagree with the statement made by Dr Ringrose with respect to the available evidence as it relates to severe disease. The evidence which he considered adequately demonstrated that fact, coupled with the other factors already outlined which he considered, suggested that the likelihood of the plaintiff at the time Dr Ringrose saw him of ever working again in his chosen trade was correct. Dr Ringrose considered at the time he saw him that his ongoing major medical problems would also have severely curtailed his ability to have been able to engage in any employment. In particular, Dr Ringrose referred to his extremely severe liver disease with major haemorrhages, his poor liver functioning, evidence of ongoing destruction of his liver, the constellation of complications associated with cirrhosis of his liver with ascites and oeadema, and those factors alone caused him to form the view at the time he saw the plaintiff that he would never work again. He maintained that position notwithstanding that he hadn’t seen him personally for the purpose of any examination.

70. [70]
    Counsel for the plaintiff submitted that because Dr Ringrose had not examined the plaintiff at all then his opinion should be given less weight particularly as it related to any occupational assessment. While it is accepted by me that Dr Ringrose would not have been in the position to know precisely when the plaintiff would have stop working from a scientific perspective, I accept Dr Ringrose’s evidence when he says he has the expertise as a clinical physician where he makes occupational decisions every day regarding the likelihood or otherwise regarding a person’s ability to work or otherwise.

71. [71]
    Dr Ringrose also gave evidence, which I also have no reason to reject, that if the plaintiff was to give up alcohol completely then that would likely improve his life expectancy. Notwithstanding that concession, Dr Ringrose did not retract his opinion regarding life expectancy.

72. [72]
    The available evidence at trial for consideration however supports a conclusion that the plaintiff has continued to abuse alcohol notwithstanding having received recent advices again not to do so. The plaintiff gave evidence himself that he had tried to give up alcohol and that having a girlfriend now who doesn’t drink certainly helps him, but the recent medical evidence (July 2013 admission to RBH Hospital ex 50(45)) confirms that he had continued to abuse alcohol notwithstanding his vast and serious medical conditions and its’ implications. Dr Ringrose also noted in his report, which he referred to in evidence, the various liver function tests performed between 17^th February 2003 and 2010 which shows that at all times the liver function tests were abnormal with elevated bilirubin with significant elevations of liver enzymes released from dying liver cells in response to alcohol intake (page 2 of ex 50 (43)). Dr Ringrose confirmed in evidence that the GGT enzyme reading of 566 and 270 related to 20^th July 2010 and 20^th June 2011 tests showed ongoing severe hepatic damage secondary to the consumption of alcohol. The reading taken in July 2013 of 152 was also noted as elevated by the Caboolture hospital (T1-7) indicated ongoing destruction of the plaintiff’s liver.

73. [73]
    Dr Smith, who also gave evidence on behalf of the plaintiff and provided a report marked exhibit 10, confirmed Dr Ringrose’s view that even though the plaintiff’s hepatitis C was treated successful during 2001, the plaintiff’s liver disease was continuing to progress. She also confirmed her view that his long term prognosis from his cirrhosis was one of reduced life span due to the progressive deterioration of his liver function and progression of portal hypertension and that cessation of alcohol intake was essential.

74. [74]
    Dr Smith also agreed under cross examination to the proposition, having been cured of hepatitis C, it would not be expected that the cirrhosis of the liver would have progressed as rapidly as it had but for continued alcohol consumption (T2-69).

75. [75]
    There was also evidence available to confirm that the plaintiff has continued to smoke and is still obese. Dr Dillon confirmed that the plaintiff stood 179cm and weighed 133.1 kg when he examined him in May 2009. His most recent admission to the Caboolture Hospital in July 2013 confirmed his weight had increased to 149.5 kg (page 346 of ex 50 (45)). It is also noted under the Patient Risk Assessment that the plaintiff was continuing to smoke but maintained that he was no longer drinking. The plaintiff has chronic obstructive pulmonary disease, a fact which Dr Ringrose considered of significance (T1-8). There was also a history of continuing alcohol abuse noted at page 346 (carton of beer, plus wine, plus spirits), a fact which the plaintiff continued to maintain even during his evidence that the note was incorrect as it had related to his flatmate’s drinking habits and not his.

76. [76]
    That assertion however is completely at odds with the plaintiff’s own evidence which was that the flatmate which he currently lived with (Eva) didn’t approve of drinking. Even if I was to accept that another person (‘flatmate’) may well have been living at his residence during July 2013, the suggestion made by the plaintiff that the note which was taken down in hospital must have related to that person’s drinking is rejected. I find that the plaintiff had little insight and indeed was less than truthful regarding his continued level of drinking. Indeed, his evidence was that he had only had 2 cans of ‘XXXX’ beer prior to being admitted into hospital in July 2013 (T1-33). He only confirmed during his own evidence that he continues to keep drinks in the fridge for entertaining aside from when his current non drinking girlfriend was over who doesn’t approve of him drinking (T2-86) or smoking.

77. [77]
    Counsel for the plaintiff has calculated future economic loss at a loss of $625 per week over five years, less greater than usual discount for vicissitudes of 30% (ex 67). In light of the evidence to which I have just referred, especially Dr Ringrose’s opinion, I am unable to assess any future economic loss because of the reasons stated. This is particularly so when regard is had to the continuing background of recent hospital admissions since September 2010 (pneumonia and constructive obstructive pulmonary disease (5 days) in September 2010; cellulitis (10 days); renal unit (28 days) in May/June 2011; renal unit (6 days) in July 2013 and the ongoing alcohol consumption by the plaintiff which the medical experts opined would have a direct impact on his life expectancy.

78. [78]
    Those admissions in my mind support the conclusions made by Dr Ringrose in his report insofar as the ongoing effects which the various serious medical conditions from which the plaintiff was suffering would have on his ability to work at that time or to do so in the foreseeable future.

Past Economic Loss

79. [79]
    The plaintiff gave evidence that he has been unable to work and has not returned to any form of work since the accident. The plaintiff provided four statements of loss and damage (ex 59 – 62) where he has made such declarations. A claim for past economic loss is made in the sum of $92,812.00 calculated over a period since the accident of 177 weeks less approximately 12 weeks to account for periods of imprisonment/health issues (average $625 per week) taking into account 10% reduction for contingencies.

80. [80]
    Having regard to all of the available evidence for consideration, I find that the plaintiff not only had the ability to work but had in fact returned to employment post accident notwithstanding his persistent assertions to the contrary.

81. [81]
    In order that my finding in this regard may be readily understood, I have taken into account the following matters.

82. [82]
    The plaintiff made various statements to medical practitioners which were consistent with the plaintiff having the ability to work and having returned to work post accident.

83. [83]
    On the 6^th September 2010, the plaintiff told Dr Saltis that he had been continuing to work including with asbestos but was wearing only cheap mask(s) from the supermarket only.

84. [84]
    That evidence is consistent with the evidence which Mr McGregor (‘Ted’) gave at the hearing, which I have no reason to reject, that the plaintiff was also sharing some of the physical work as it related to cleaning the tyre rims during the period when he and the plaintiff were in a ‘partnership’ business together namely Wheels 4 U from April 2010 to October 2010.

85. [85]
    The plaintiff maintained in his evidence that he only sat back with the mask on while Ted did that work in order that he would be able to tell, not show, Ted how to perform that work (T2-77). I am unable to accept that evidence. The statement made to Dr Saltis and the statement noted on 13^th September 2010 in the Caboolture Hospital records to the effect that the plaintiff was working as a welder and that his work took him to rural places is consistent with him having returned to some form of employment at that time. It is also consistent with the hospital records noting that on the 17^th September 2010 at the plaintiff’s own request, he was given a medical certificate for his work. The plaintiff maintained at hearing that he had only asked for the medical certificate on 17^th September 2010 because Centrelink were requiring it. Whether he had asked for the certificate for Centrelink purposes or not is beside the point. The evidence in my mind shows that he was requiring a medical certificate because he was in fact working. The tendered bank records also show (ex 50(50)) that various payments were being received by him from Nathan Trailers during the period 3^rd to 30^th September 2010, which he tried to suggest related solely to Ted’s business. I am unable to accept the plaintiff’s evidence on this issue. The evidence available shows that the plaintiff was actively involved in the Wheels 4 U business. The plaintiff’s evidence in respect of the  ‘rural places’ reference was that it could not be correct as he ‘never left the area’ and that he only ever went ‘all around Brissie’ with Ted in order to pick up rims (T2-78) confirms he was involved in that business more than he was willing to concede.

86. [86]
    When the plaintiff saw Dr De Leacy on 30^th September 2010 he was also observed to be wearing a hat and a fluorescent upper garment like the type workmen wear. This evidence when taken together with the other evidence to which I have already referred supports a conclusion that the plaintiff was working and clearly had the ability to do so. The plaintiff’s explanation at hearing was that he liked to wear that clothing simply because it was light however is therefore rejected.

87. [87]
    The plaintiff also told Dr Dillon during the May 2009 consultation that he had been unable to do his weekend work of selling items at the Sunday markets. A record of the Caboolture Hospital on 18^th November 2008 stated that the plaintiff worked in the markets (selling tools) which suggests that the plaintiff had continued to do this pre accident activity again even after the subject accident. During his evidence at hearing on this point however, the plaintiff suggested that he was only selling off his personal tools in the trade as they were getting stolen. However, ex 50(63) suggests that the plaintiff still owned tools of his trade to the value of $5000 as at 6^th April 2010 notwithstanding.

88. [88]
    There was however other substantial evidence available at hearing to support a conclusion that the plaintiff had returned to work and had been actively involved with Mr McGregor in partnership under the name Wheels 4 U from April 2010.

89. [89]
    The plaintiff had registered the business name Wheels 4 U in his sole name on 20^th January 2007, a fact which he admitted at hearing but which he was adamant that he had never used for the purpose of setting up or running that business at any time. Mr Bailey however, who was called to give evidence in the plaintiff’s case, confirmed that the plaintiff had in fact previously supplied PBL trailers with tyre rims even before the plaintiff had commenced work there on 2^nd June 2008. The plaintiff denied this fact. Indeed, the plaintiff maintained that the only time he ever went to PBL trailers regarding the supply of tyre rims was after the accident to introduce Ted to the owner and Mr Bailey yet Mr Bailey stated in his evidence that he had never ever met Ted. I have no reason however to reject Mr Bailey’s evidence on these issues. Mr Bailey struck me as a forthright witness who was willing to give his evidence to be best of his ability. Mr Bailey in fact gave evidence that he was sure that the plaintiff had never supplied PBL trailers with tyre rims during his employment or even after the subject accident, which is again totally at odds with the plaintiff’s assertion that he had taken Ted there after the accident to introduce him to PBL trailers’ owner and manager as it related to Wheels 4 U. Mr Bailey’ evidence regarding the plaintiff’s supply of tyre rims to PBL Trailers prior to his commencement there is also consistent with the earlier registration of the business by the plaintiff in own name in 2007.

90. [90]
    Indeed, the plaintiff’s taxation records tendered (ex 12 to 28) show that the plaintiff was substantially out of paid employment during a period prior to him commencing work as a tyre fitter with PBL Trailers. For example, upon finishing his employment with Saunders Welding on 19^th November 2006, the plaintiff was not employed again until 12 July 2007 up to and including 9^th October 2007 with Blue Recruit. Aside from a couple of days of paid employment during the period 25^th October 2007 to 2^nd June 2008, at which time he commenced his paid employment with PBL Trailers. Those records tendered confirm that he was not receiving any (declared) paid employment during this time, although he was receiving Centrelink Newstart payments from at least March 2008. There was however inexplicable phone transfer credits of money being received by the plaintiff during the months of April and May 2008 into his bank account (ex 50(50)) which the plaintiff was not able to provide any reasonable or logical explanation for notwithstanding that he was given ample opportunity to do so. This collective evidence, to which I have just referred, was reasonably suggestive of the plaintiff having operated a business for the purpose of supplying tyre rims even prior to the subject accident, a fact he was not willing to accept. The evidence of registration of the Wheels 4 U business in 2007 together with Mr Bailey’s evidence at trial which confirmed his belief that the plaintiff had been supplying PBL Trailers with tyre rims even prior to the plaintiff’s employment commencing in June 2008 (a fact evidenced by the plaintiff’s own bank account) supports such a suggestion.

91. [91]
    There was substantial evidence at hearing, in any event, in my mind, to support a reasonable conclusion being drawn that the plaintiff was working the business Wheels 4 U after the subject accident, during the period April to October 2010. Aside from Mr McGregor’s evidence on this issue there was other evidence.

92. [92]
    On the 22^nd April 2010, the plaintiff paid $514.90 for business cards as it related to that business. Those business cards have both his and Ted’s mobile numbers on it, which is consistent with Ted’s evidence, which I have no reason to reject, that they were going into business together under the name Wheels 4 U.

93. [93]
    The plaintiff own evidence regarding his role as it related to Wheels 4 U also supports a conclusion that the plaintiff was involved in the business more than he was willing to concede on oath. For example, he admitted to driving around with Ted all over Brisbane to source tyre rims and he admitted that he would source the location of those rims by sitting on the phone for several hours in order to find them.

94. [94]
    Counsel for the plaintiff submitted that the plaintiff’s own evidence relating to his role insofar as Wheels 4 U during this period was in fact consistent with that of Ted’s. That submission however overlooks the evidence which Ted gave, which is in direct conflict with the plaintiff’s own evidence on this issue. For example, Ted gave evidence that he believed that the plaintiff and himself were in partnership together in that business, a fact that the plaintiff denied; that the plaintiff had also actively participated in physical work notwithstanding that Ted had carried out about 80 to 85% of it, a fact that the plaintiff also denied. That work also included putting the tyres onto a machine situated in Ted’s garage and using angle grinds, cleaning the wheels, lifting on occasion 35-40 kg rims, unloading deliveries and the like (T3- 26, 27 28 and 34). Ted also gave evidence that both he and the plaintiff would usually work 7 days a week, starting early in the morning and finishing late (T3-28). He also gave evidence that the proceeds were not actually split between them and that the plaintiff had only ever paid the running costs associated the business, such as registration, fuel, oil and the like out of the monies that were coming in.

95. [95]
    That evidence is consistent with the plaintiff’s own bank records tendered which do not show any transfers of money at all being made into Ted’s bank account, even though the plaintiff continued to maintain during the course of his evidence that all of the business proceeds were only ever Ted’s and that he had only allowed Ted to use his bank account as a working business account so that Ted could start and operate the business of Wheels 4 U and that he was not involved in the business at all in any real sense.

96. [96]
    I have no reason to reject Ted’s evidence relating to the business Wheels 4 U which he gave, particularly as it related to the plaintiff’s role in it. He struck me as an honest and forthright witness. While it is true that he and the plaintiff had fallen out prior to him giving his evidence to the court, this fact alone did not cause me to have any doubts about his evidence and its’ truthfulness. He was, for example, happy to accept that he was doing most of the physical work involved in that business. Had he been designed on giving evidence unfavourable to the plaintiff, I would have expected that on that issue he would have said that the plaintiff was in fact doing more of it rather than stating that the plaintiff was only doing about 20% or so of it.

97. [97]
    There was also other evidence available nevertheless which supports a conclusion that the plaintiff was operating and working the business of Wheels 4 U with Ted during May to October 2010.

98. [98]
    The plaintiff denied at hearing that it was his handwriting on certain invoices tendered (ex 50 (53), (54) and (55)) and suggested that the writing was in fact Ted’s. That suggestion however was never put to Ted at hearing. Mr John Heath, handwriting expert, was called to give evidence on behalf of the defendants. He prepared a report which was tendered (ex 50 (52)).

99. [99]
    His evidence at hearing in effect was that even though he only had been supplied small samples of the plaintiff’s writing for comparison, he did not accept that fact as having any real bearing upon his ultimate conclusions. He stated that because the nature of the handwriting was highly individualised (as it was in this case), then a limited sample of that writing was of no consequence. He also stated that even where there was a contest between whether a document had been authored by one author or another, it was not necessary in this case because of the highly individual handwriting which was available.

100. [100]
     Counsel for the plaintiff also referred to Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 in support of his submission that Mr Heath’s report has failed to set out sufficiently the basis and the rationale behind his ultimate conclusions. A careful examination of Mr Heath’s report, while brief, coupled with the evidence he gave at hearing, adequately explains the basis upon which he has ultimately reached his conclusion. For example, he specifically referred to the questioned handwriting as being highly individual in appearance and construction and careless in completion. As such, he was satisfied that the abundance of evidence available for comparison by him was sufficient to conclude that the questioned handwriting was that of the plaintiffs’.

101. [101]
     Having regard to the handwriting evidence which I accept, I find that the plaintiff, when questioned on oath regarding whether it was his handwriting on those invoices, was deliberately untruthful when giving his denial. Even if I am wrong in respect of this finding, there was ample evidence available at hearing in any event, to which I have already referred which supports the conclusion that the plaintiff was able to work and had in fact been working since the accident, a fact he deliberately withheld from a variety of medical practitioners who had examined him in respect of his claim. I find that his failure to be forthright in this regard was designed to advance his own interests in relation to his ongoing claim for damages.

102. [102]
     It follows that any assessment of damages, particularly damages for past (or future) economic loss is therefore now somewhat limited, particularly in circumstances where I have come to the conclusion that the plaintiff has been less than truthful not only to this court during his evidence but also to a variety of the medical practitioners and his legal advisers as already indicated.

103. [103]
     As observed by McPherson JA in Collings & Anor v Amaroo (Qld) Pty Ltd & Anor [1997] QCA 224 this now leaves me with the impossible task of attempting to assess his true condition subsequent to the subject accident by reference, not to what he has said about it, but to what he and others might have said if he had told the truth.

104. [104]
     Counsel for the plaintiff submits that an assessment of $625 per week av over a period of 165 weeks (177 weeks minus 12 weeks, since the accident) be made, given the evidence of Mr Bailey that the plaintiff would have remained in employment with PBL Trailers but for subject accident, such calculation taking into account 10% contingency factors (Ex 67).

105. [105]
     I am unable to accept the submission in the light of the findings which I have just made in respect of the plaintiff’s credit. The assessment for damages proposed cannot be maintained, particularly in circumstances where I have found that the plaintiff had returned to employment post accident and was receiving income during the period 4/5/10 to 19/10/10 (24 weeks), the total sum of which was $15,714.00 tax free which is an average of $654.75 per week, a figure more than he was earning while employed at PBL Trailers. (See ex 25 (p74 and ex 27 (p76). I am unable to assess what part of that income was used towards the business running expenses because of the lack of evidence available at trial. I am also unable to calculate with any degree of certainty any past economic loss post accident other than by reference to what the plaintiff was in fact earning nett per wk as evidenced by the exhibits (exhibits 25 and 27) which is a total period of 42 weeks covering the time that he was working at PBL Trailers. Those exhibits show that over that 42 week period the plaintiff earned as a permanent casual employee tyre fitter an average of $614.00 nett per wk. Counsel for the defendants proposed in his submissions that reference to ex 36, p85 was appropriate in determining the av nett wage. That submission however overlooks that the document was prepared with reference to one pay period only (ex 36, p99). The other pay periods in that exhibit show that the plaintiff’s work hours were varied. A more appropriate nett av wage per week therefore in my mind is more readily explicable with reference to the Australian Taxation Office payment summary documents to which I have already referred to for the purpose of any calculation in respect of post economic loss.

106. [106]
     Having regard to my overall assessment of the plaintiff’s credit and the difficulties which that now presents, but accepting nevertheless that the plaintiff has suffered minor soft tissue injuries as a result of the subject accident to his neck and shoulder (and for a minor knee injury), I calculate damages for past economic loss at $614 nett av per wk for a period of 59 weeks (i.e. from date of accident to his return to work on the 4^th May 2010). In coming to that conclusion, I have also taken into account the following factors.

107. [107]
     The plaintiff suffered a significant knee injury unrelated to the accident in August 2009 which caused him to be discharged from hospital on crutches for 2 weeks; was hospitalised in September 2010 (5 days) for ongoing unrelated health problems and served a period of imprisonment just prior to the cessation of the business Wheels 4 U in October 2010; has subsequently continued to suffer continuing serious health problems which has required periods of hospitalisation since that time, all unrelated to the subject accident, which would have in any event significantly impacted upon his ability to remain in his chosen employment, even notwithstanding that I accept he had a benevolent employer at PBL Trailers. The evidence of Mr Bailey also must be taken into account which was that PBL Trailers needed a tyre fitter essentially full time (T2-6), a fact that is relevant taking into account the continued injuries and illnesses which the plaintiff suffered since the accident in March 2009 which in my mind would have significantly impacted upon the company’s ability to remain ‘benevolent’ insofar as keeping the plaintiff’s employment open for him under those continuing circumstances. I find that Dr Ringrose’s opinion (Ex 50 (43)) regarding the plaintiff’s ability to continue to work due to unrelated serious health issues is also a consideration together with the somewhat sporadic work history that the plaintiff had prior to his commencement as a permanent causal employee with PBL Trailers in June 2008.

The plaintiff’s credit overall

108. [108]
     There was substantial evidence available at hearing to support my ultimate conclusion that the plaintiff was both untruthful and unreliable. I found him overall to be an unimpressive witness, not capable of belief. The evidence which supports my overall impression of him included:

• His criminal history including dishonesty offences, while not determinative alone but when taken into account with the overall evidence, is significant.

• his false statements and omissions to the various medical practitioners already outlined particularly as it relates to his ability to work and the level of ongoing pain and disability (both physical and psychological).

• the deliberate exaggeration of symptoms to Drs Dillon and McPhee

• the substantial body of evidence available at hearing which supported a reasonable conclusion being drawn that the plaintiff had since returned to employment post accident and had the ability to do so

• his stated disregard with respect to his obligation to lodging tax returns since 2005 and his rationale behind not doing so (to avoid Child Support – see (T1-64)).

• his unimpressive attempts during hearing to have ‘memory lapses’ particularly under cross examination related to the belt in the head which he says he got as a consequence of the accident (not substantiated medically or objectively)

109. [109]
     While it may be accepted that some memory lapse is readily explicable relating to minor offending many years ago (1970s offending in New Zealand) for example, the plaintiff’s attempt to ‘explain’ his absence from this State for approximately 4 years as it related to the serious driving offence committed in 1998 and dealt with in 2003 before Judge Hoath was less than impressive and was a deliberate attempt to mislead. The plaintiff attempted in his evidence to suggest that he had been living in New South Wales the whole time but had promptly came back to Queensland to hand himself in, in 2003, yet the available evidence showed that he had received a 48 week treatment for Hepatitis C during 2001 while he was living at Zillmere, a fact he could not conceivably forget.

110. [110]
     He was also less than impressive relating to other ‘memory lapses’ particularly under cross examination. My observation of him during the course of his evidence was that at times when he was being placed under pressure to explain a document or the like (such as phone transfer money credit entries in his bank account records in 2008) he would suggest a memory lapse as a result of an apparent ‘belt to the head’ which he said he’d got in the subject accident (T1-40). Yet when he was asked to explain petrol outlet entries during 2010 as they appeared in those records, he was able to quickly account for those as simply paying for others who were driving him around in order for him to purchase items.

111. [111]
     That evidence in my mind was a deliberate attempt by the plaintiff to shift suspicion away from him insofar as any driving that was related to the business of Wheel 4 U at that time.

112. [112]
     I also find that he also tried to shift blame to a person named Matthew Kliner in respect of a more recent driving under the influence incident that was alleged to have been committed by him in March 2013 (see ex 65). When asked under cross examination whether his request of the social worker during his July 2013 hospital admission to ring the police for him regarding his court appearance, actually related to that alleged offence against him (T1-47), the plaintiff continued to deny that he had any involvement in it at all. He was less than impressive on this issue. The evidence shows that he not only knew the car that was involved (a female friend owned it), the details that appear on the relevant documents (ex 64) shows his correct date of birth, his current address, a vehicle which he apparently is aware of and a reference to a similar surname ‘alias’. Notwithstanding those facts, the plaintiff insisted on oath to having no personal knowledge of the subject event at all.

Conclusion

113. [113]
     Bearing in mind the limitations now placed upon this court as observed in Colling, I find that the plaintiff suffered comparatively minor soft tissue injuries as a result of the subject accident to his neck and right shoulder with residual permanent impairment (and knee). However, I find that the plaintiff had recovered substantially from those injuries and was therefore able to return to employment by May 2010 which he failed to disclose or report to the various medical practitioners who had specifically examined him for the purpose of this litigation. I find that his failure in that regard supports a conclusion that he had specifically done so in order to advance his own interests related to the litigation. For the reasons already stated, I am also unable to conclude with any degree of confidence whatsoever, that the plaintiff suffered any psychiatric sequelae as a consequence of the subject accident.

114. [114]
     Accordingly, I calculate damages as follows: