Eustace v Dubrava[2023] QDC 100

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 15 August 2017 the plaintiff, Mr Eustace was driving his motor vehicle in a northerly direction along Maroochy Boulevard at Maroochydore.  He was travelling in the right-hand middle lane. The plaintiff stopped his vehicle behind four to five other cars at the intersection where the traffic lights were red.  He was stopped in the lane adjacent to a right-hand turning lane. The first defendant, Ms Dubrava’s vehicle was stopped behind him. She negligently moved her car forward and collided with the rear of the plaintiff’s vehicle.
2. [2]
   The plaintiff claims damages from the first defendant and second defendant (her insurer) for the injuries he suffered as a result of the collision.  Liability is admitted. 

The plaintiff’s case

3. [3]
   The plaintiff pleads that as a result of the accident the following injuries were sustained, namely:

   1. (a)
      permanent aggravation of a pre-existing cervical and lumbar spine pain.
   2. (b)
      right scapular pain.
   3. (c)
      psychiatric injury consisting of a major depressive order with anxious mood or alternatively, an adjustment disorder.
4. [4]
   The plaintiff claims general damages (for pain and suffering), damages for future treatment expenses, past loss of earnings, damages for future economic loss and related superannuation and past special damages. The plaintiff no longer claims damages for past and future domestic assistance.^[1]

The defendants’ case

5. [5]
   The defendants deny the plaintiff suffered any physical or mental health consequences because of the accident, given the minor nature and extent of the force involved in the accident. The defendants also deny the plaintiff has suffered any loss and damage in the amounts claimed in the statement of claim.^[2] In particular, they contend that any cervical, lumbar spine and right scapular pain was not suffered as a consequence of the accident because it related to the plaintiff’s significant pre-existing injuries. In the alternative, the defendants contend that if the plaintiff did suffer any pain or injury to the cervical spine, lumbar spine, or right scapular then any such injury was:

   1. (a)
      of a minor soft tissue nature only (which has resolved) and did not give rise to any permanent impairment; and
   2. (b)
      a minor and temporary exacerbation of the plaintiff’s significant pre-existing conditions.
6. [6]
   The defendants also deny the plaintiff suffered any accident related psychiatric or psychological injury given he suffered a prior psychiatric disorder, namely dysthymia and major depression, prior to the motor vehicle accident.
7. [7]
   The defendants submit that any psychiatric condition suffered by the plaintiff after the accident is a continuation of his pre-accident psychiatric conditions and was not caused or contributed to by any injury the plaintiff may have received in the motor vehicle accident. In the alternative, the defendant pleads that if the plaintiff did sustain a psychiatric injury from the accident, it was of a minor and temporary nature of no more than two or three weeks.

The plaintiff’s background^[3]

9. [9]
   The plaintiff was born on 17 April 1975.  He was aged 42 at the time of the accident.  He is now 47 years of age.  He currently resides in Laverton, Victoria with his aged father for whom he cares.  The plaintiff left school in year 11 in 1992.  He then obtained work in a grain store warehouse, completing tasks including cleaning, sorting and bagging grain for about three months.  Following this he worked for a different grain business packaging bird seed for a few months. After that, the plaintiff worked for approximately 11 months as a store person for Bandanna Logistics in Albury. He then worked for a logistics company that manufactured gearboxes for Ford. At that time, he also played AFL (Australian Football League), where he injured his AC joint in his left shoulder and which resulted in him taking approximately 10 weeks off work.^[4]
10. [10]
    In approximately 1995, after recovering from his football injury, the plaintiff commenced an airbrushing course at TAFE. That same year he ruptured his right kidney playing AFL and spent 10 days in hospital.
11. [11]
    In 1996 he moved to Cairns where he obtained work as a houseman at a resort for a few months. The plaintiff envisaged being able to obtain work in the hospitality industry, however, he was unsuccessful, so he returned to Laverton.
12. [12]
    The following year (1997) he worked for Hagen Auto Electrics in Albury-Wodonga delivering parts and as a general labourer in the warehouse for three to four months.  Later that year he commenced studying a Diploma of Fine Arts and worked as a furniture removalist during holidays. He was forced to defer his studies due to the course being suspended for lack of students. He then moved to Canberra where his sister lived. He found employment in customer service with Telstra where he worked for approximately six months before transferring to the Queanbeyan Telstra Store for four to five months. Following this, in 1999, he worked for Paragon Printing in Fyshwick as an assistant. 
13. [13]
    In 2004 the plaintiff commenced studying for a Certificate III in Hairdressing at the Canberra Institute of Technology whilst working in his sister’s hairdressing salon as an assistant. He then started his hairdressing apprenticeship.
14. [14]
    On 5 October 2006 the plaintiff injured his neck in a bicycle accident and was out of work until 2008.^[5] 
15. [15]
    In 2008, the plaintiff returned to Albury and intended to complete his Diploma of Fine Arts, however, this did not occur. He continued to suffer pain in his neck throughout 2008. After briefly attempting to establish his own hairdressing business, the plaintiff commenced studying a Certificate IV in Web Design for 12 months. In 2011 he worked for a local barber for several months but left due to poor working conditions.^[6]
16. [16]
    The plaintiff then worked in a newsagency wrapping newspapers for delivery for two to three hours a day over twelve months.  His neck was still causing him aggravation.  In January 2013, the plaintiff moved to Kenilworth on the Sunshine Coast where his younger sister lived and where for approximately twelve months he worked as a mystery shopper for a business called Above Board. This involved visiting businesses in the guise of a customer and assessing businesses’ tidiness and staff performance.  The work was poorly paid.
17. [17]
    In mid-2014 the plaintiff commenced work with Stellar Asia Pacific (Stellar). His duties involved processing individuals’ Australian Taxation Office tax returns over the phone.^[7] He described dealing with a constant flow of incoming calls from customers during a regular day. He used a headset to take calls. The job required adherence to performance indicators including attendance at work and time benchmarks (for example, addressing customer enquiries in under three minutes). The plaintiff was, on occasions, required to attend meetings with his employer due to noncompliance with the key performance indicators and for other reasons, for example, breaching the time performance benchmarks, and swearing at and around other staff out of frustration.
18. [18]
    In 2016, Stellar trained the plaintiff to work in the company’s businesses and companies’ debt recovery section.  He was given further responsibilities including being given authorisation to remit up to $25,000 worth of penalties and interest.^[8] He was employed in this role at the time of the accident.

Issues in dispute

19. [19]
    During the trial the following issues emerged for my determination:

    1. (a)
       the nature and extent of force of the impact to the plaintiff;
    2. (b)
       the nature and extent (if any) of the plaintiff’s physical injuries suffered, including:

       1. whether the accident caused an aggravation to the plaintiff’s pre-existing cervical and lumbar spine injury
       2. if yes, to what extent and for how long;
    3. (c)
       whether the accident aggravated or contributed to the plaintiff’s existing psychiatric condition, and if so, to what extent; and
    4. (d)
       the quantum of damages that should be awarded to the plaintiff.

Credibility and reliability

20. [20]
    Prior to determining these issues, it is appropriate to first consider issues of credibility and reliability regarding the plaintiff’s evidence.
21. [21]
    On behalf of the plaintiff, it was submitted the court should find that he was an honest witness who assisted the court to the best of his abilities. It was submitted that although his memory was not the best, the plaintiff should not be seen as a witness lacking honesty or candour. Further, even if the court were to have some doubts about his credibility, that does not mean his evidence should be rejected, particularly where there is corroboratory evidence. For example:

1. (a)
   he disclosed all his pre-existing neck, shoulder and hip injuries in his Notice of Accident Claim Form, and to medico-legal experts; and
2. (b)
   he did not take the opportunity to embellish the circumstances of the accident to describe his car being propelled forward a considerable distance.

22. [22]
    The plaintiff submits that, even if the court were to have some doubts about his credibility, that does not mean his evidence should be rejected, particularly where there is corroboratory evidence.
23. [23]
    The defendants submit the plaintiff’s evidence is critical in circumstances where there is no objective evidence that the accident caused any of the plaintiff’s injuries. The defendants submit the court would find the plaintiff to be a dishonest witness. The defendants point to specific examples.^[9] The defendants rely on several authorities to support the submission that the court cannot have confidence in the plaintiff’s evidence of his health before the accident, or his evidence of the accident’s effect upon him.^[10]
24. [24]
    A useful guide to resolving issues of credit is found in the following observations of Fraser JA in Guirguis Pty Ltd & Anor v Michel’s Patisserie System Pty Ltd & Ors:^[11]

“[50] Most experienced judges subscribe to the view expressed by Goff LJ in Armagas Ltd v Mundogas SA (The “Ocean Frost”) that it is essential ‘when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities’. Goff LJ was referring to cases of fraud, but the statement is of general application. As Goff LJ observed in the same passage:

‘It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth.’

[51] This is not a recent revelation. About 60 years earlier, for example, Atkin LJ, after observing that ‘an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour’, confirmed that trial judges were encouraged ‘to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events.’”

25. [25]
    The following often cited passage from Lord Pearce in Onassis and Calogeropoulos v Vergottis^[12] is also relevant to the present case:

“‘Credibility’ involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason, a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.”

26. [26]
    Many features of the plaintiff’s evidence reflect adversely on his credibility and reliability. The plaintiff’s evidence of his neck and back pain before the incident is internally inconsistent, and inconsistent with disclosures he made to doctors and other medical professionals he attended on before and after the accident. For example:

    1. (a)
       Under cross-examination, the plaintiff initially agreed that he told Dr Bell (expert orthopaedic specialist) during an assessment on 22 May 2018 that the back and neck surgery in 2007 had not improved his neck or right upper limb pain. He stated that the pain did not improve up until the second operation in 2019 after the accident. The plaintiff then changed his evidence to say, “it did get better” after the 2007 operation, then again changed his evidence to say his strength got better but the pain did not.^[13] The plaintiff, at another stage during cross-examination, agreed that he still had pain in his neck and right arm before the accident, he then varied his evidence to say that the pain had “not totally” improved after the first surgery, then later agreed it had improved “just a tiny little bit”.^[14] Overall, the plaintiff’s evidence about the level of pain he suffered in his neck and shoulder before the accident was inconsistent, particularly where he said it had improved by 2014 and was then permanently aggravated by the accident in 2017. I consider the plaintiff was attempting to downplay the neck and shoulder pain he suffered prior to the accident.
    2. (b)
       At one stage, the plaintiff agreed that before the accident, in November 2016, he spoke to his general practitioner at Lake Kawana Medical Centre (LKGP), Dr Winten, about being unhappy at work. Following this, his Lexapro (anti-depressant medication) dose was increased to 30 milligrams for a short time.^[15] At a later stage in his evidence, the plaintiff said his dosage of Lexapro increased after the accident, which is consistent with the plaintiff’s claim of increased depression.^[16] Under cross-examination, when confronted with the LKGP notes to the contrary, the plaintiff conceded the Lexapro dose “possibly” wasn’t increased after the accident.  He then gave nonresponsive and unsatisfactory answers when cross-examined about why he had said earlier that his dosage had increased.^[17] The plaintiff’s evidence is inconsistent with the LKGP records which show the only increase in his Lexapro medication was before the accident. I consider the plaintiff was attempting to downplay his depressive symptoms prior to the accident.
    3. (c)
       At one point during cross-examination, it became apparent the plaintiff had a notebook with him in the witness box. It contained notes the plaintiff had made about the case prior to an earlier trial listing. After counsel for the defendants had an opportunity to examine the contents of the notebook, the plaintiff was challenged about a note he wrote himself which included the words “don’t tell them about hip. How it affected my work ethic. Be careful.”^[18]  When cross-examined about this, the plaintiff gave various unconvincing explanations as to what the note meant, including that he wrote “don’t tell them about hip” because the trial was only about his neck.^[19] The plaintiff also said he was not hiding the left hip injury, rather, he was reminding himself to confirm it did not affect his work ethic.^[20] The plaintiff submits that the note was not reflective of any dishonesty because, in the Notice of Accident claim form the plaintiff made full disclosure of his left hip injury. I consider the note is another example of the plaintiff’s intention to downplay his hip injury (unrelated to the accident) as a reason for his poor work performance at Stellar, and/or it was his hip injury which he raised at the termination meeting as the reason his work performance had suffered. Whatever the notation meant, I am satisfied that it is an example of the plaintiff’s endeavours to tailor his evidence to bolster his claim. I also consider the plaintiff was attempting to downplay the significant level of pain and disability his hip injury/osteoarthritis caused him prior to and after the accident.
    4. (d)
       The plaintiff agreed, when referred to Dr Winten’s notes, that he may have told Dr Winten on 22 November 2016 (when he was still working at Stellar) that he was looking for other work.^[21] He then denied that he would have been looking for other work at that time.^[22] He then maintained he only would have told Dr Winten after the accident that he was looking for other work.^[23] My impression is that the plaintiff was trying to present as a person who would not have left Stellar until forced to do so by his physical and psychiatric injuries. On the contrary, it is clear the plaintiff was unhappy working there well before the accident.
    5. (e)
       In June 2018, the plaintiff reported to Dr Bell that he was playing cricket before the accident in August 2017 but had not returned to cricket after the accident.^[24]   The plaintiff under cross-examination initially agreed that he told Dr Winten in November 2016 that he had not been playing cricket at that time. The plaintiff agreed he had not, in fact been playing cricket between then and the accident.^[25] Dr Bell gave evidence that he partially based his opinion that the accident aggravated the plaintiff’s cervical injury on the plaintiff’s self-report that he was playing cricket pre-accident and unable to play cricket or work full-time post-accident.^[26] This assumption, fairly made by Dr Bell, was inconsistent with the objective medical evidence and with the evidence that his employment was terminated due to unsatisfactory work performance. I am satisfied that Dr Bell was misled by the plaintiff’s inaccurate assertions in respect of his physical fitness and employment situation prior to the subject accident. Whether it was deliberate on the plaintiff’s part or not is unnecessary for me to find. What is critical, is that an important part of the plaintiff’s history given to a key expert was completely unreliable.
    6. (f)
       Under cross-examination the plaintiff was asked whether he agreed that he told Dr Winten on 18 August 2017 (the second time he had seen Dr Winten after the accident) that there had been some improvement in his pain. The plaintiff denied there had in fact been any improvement in his condition which is inconsistent with Dr Winten’s notes.^[27]
    7. (g)
       Under cross-examination the plaintiff maintained that he suffered severe headaches daily from the day of the accident. He described them as piercing and numbing. His evidence is inconsistent with questionnaires he completed during physiotherapy sessions with Ms Paxton on four occasions between 31 August 2017 and 23 April 2018. For example:

       1. In a questionnaire on 31 August 2017, less than 2 weeks after the accident, and on 31 December 2017 he ticked “I have slight headaches that come infrequently.” On 5 February 2018 and 23 April 2018, which was his last appointment with the physiotherapist until he saw her 7 March 2019, he ticked “I have no headaches at all.”^[28] The plaintiff continued to deny that he had slight headaches that come infrequently and he maintained he had headaches of such severity he had to go home from work.^[29] He maintained the frequency and severity still occurred at the time of trial. The defendant justified the answers he ticked on the questionnaires as how he felt at the specific moment in time that he filled out the questionnaires. Ms Paxton physiotherapist gave evidence confirming that was the approach she told patients to take. However, I consider the pattern of answers the plaintiff gave in the questionnaires is inconsistent with the plaintiff’s evidence that he suffered daily and severe headaches during the period he attended physiotherapy sessions with Ms Paxton.
    8. (h)
       The plaintiff said he could not recall telling Ms Paxton on 7 September 2017 or 14 September 2017 that he thought he was back to 80 to 90 per cent of his pre-MVA (motor vehicle accident) function. This is inconsistent with Ms Paxton’s notes.^[30] The plaintiff later conceded he could have told Ms Paxton on 7 September 2017 he felt he was back to 80 percent of his pre accident function but would have done so because he wanted to get back to work. ^[31] There is no evidence that Ms Paxton had any role to play in certifying the plaintiff as being fit to return to work. This response was therefore entirely unconvincing.
    9. (i)
       The plaintiff denied under cross-examination that he told Ms Paxton on 23 April 2018 that he felt he was back to his pre-motor vehicle accident status.^[32] This is inconsistent with Ms Paxton’s notes and her evidence. The plaintiff’s counsel, in written submissions does not ask the court to reject Ms Paxton’s notes or evidence on this issue.
    10. (j)
        In relation to his history of drug use, the plaintiff asserted, when specifically asked by Dr Milad psychiatrist, that he had not used cannabis for two years.^[33] Testing requested by Dr Milad revealed recent use. The plaintiff’s attempts during evidence to explain and excuse his inconsistent statements to Dr Milad were unconvincing.^[34]
    11. (k)
        The plaintiff continued to give inconsistent and evasive answers under cross-examination about the extent and frequency of cannabis use both before and after the accident. For example, he denied under cross-examination using cannabis before the accident for the time (over three years) he was working at Stellar.^[35] However, a report from Dr Gleeson, who the plaintiff saw for sleep disturbance, records he told her only four weeks before the accident that he smoked six to seven marijuana pipes a day.^[36] Again, his attempts under cross-examination to explain this material inconsistency were not believable.
    12. (l)
        The plaintiff initially gave evidence that he worked for his brother-in-law as a delivery driver for three months in 2019.^[37] He later gave evidence that he worked for his brother-in-law in February 2018 over a three-month period.^[38] The plaintiff did not disclose to the defence, as required, or in his tax returns to the ATO, that he had earned an income working for his brother-in-law between February 2018 and at least March 2019. For example, he reported to Ms Paxton on 8 February 2018, two weeks after he stopped working for Stellar, that he was doing some work driving to deliver letterboxes. He told Ms Paxton on 15 February 2018 that he was doing work delivering flat pack mailboxes weighing 10-15 kilograms. The plaintiff’s failure to disclose income is relevant not only to his credibility and reliability, but also to any assessment of past economic loss.
    13. (m)
        On several occasions during his evidence, the plaintiff pretended to misunderstand simple questions asked under cross-examination and gave evasive or nonresponsive answers to questions when challenged about inconsistencies in his evidence.
27. [27]
    The above are examples of only some aspects of his evidence which cause me to exercise considerable caution when determining what parts of the plaintiff’s evidence I accept as credible and reliable, and what parts of his evidence I reject.
28. [28]
    That is not to say I consider the plaintiff to be a generally dishonest person. The plaintiff was an unsophisticated witness who appeared to have a poor memory, which would explain some of the inconsistencies within his evidence when compared to other evidence. This is to be expected, having regard to the significant passage of time since his first injury in 2006, the accident in 2017 which is now over 5 years ago, and the many medical professionals he has attended upon over the past 16 years.
29. [29]
    Ultimately, I have sought to objectively assess his evidence, having regard to a consideration of all the evidence, to determine on the balance of probabilities what parts of the plaintiff’s case are proved.^[39] I accept some parts of his evidence, where it is materially supported by other independent evidence which I accept. Where the plaintiff’s evidence is inconsistent with contemporaneous medical or other records, I do not accept it.

Plaintiff’s physical state prior to the accident

Plaintiff’s evidence

30. [30]
    The plaintiff injured himself in a bicycle accident on 5 October 2006.^[40]  The relevant circumstances of this accident were that he came off his bike after his handlebar hit the edge of a star picket post, causing him to land on the footpath headfirst.  As a result, he injured his cervical spine. On 21 October 2007, he had a discectomy and fusion performed at the C5/C6 level of the cervical spine. He remained in hospital for approximately one month before returning to live in the Australia Capital Territory.^[41]
31. [31]
    He continued to suffer pain in his neck throughout 2008. He described this as causing him aggravation. 
32. [32]
    As of 2013 the plaintiff’s neck pain had settled to general soreness and a long-term ache. He experienced no symptoms in his arms apart from general pins and needles in his hands.^[42]  In 2014 he recalled “possibly” receiving treatment for his arm which he believed may have been aggravated from woodchopping. In 2015, his neck was improving, and his strength improved. He recalled his neck and back were not too bad, and it was mainly his hip which caused him problems and pain.^[43]
33. [33]
    The plaintiff played 20/20 cricket in 2015. He batted, bowled, and fielded.^[44] He started having issues with his left hip, which began causing him pain. He recalled experiencing trauma in his left hip due to an accident when he was aged four.^[45]
34. [34]
    The plaintiff took Celebrex, Panadol Osteo, Lyrica, and Lexapro for depression from at least 2012 up to, and after the accident in August 2017.  He recalled feeling depressed in 2013 to 2014 due to general factors such as difficulty finding work and his physical ailments, although mainly due to his hip.^[46]
35. [35]
    Under cross-examination the plaintiff agreed:

    1. (a)
       In 2012, he possibly told his general practitioner, Dr Winten, that he had daily aching neck and shoulder discomfort.^[47] 
    2. (b)
       In July 2013, he told Dr Winten that if he used his right arm, it triggered right shoulder stiffness and tingling.^[48]  He told Dr Winten that he suffered headaches, which might have been stirred up lifting heavy wood at the time, and he applied for a disability pension.^[49] 
    3. (c)
       In August 2013, he was prescribed Lyrica at a dose of 150 milligrams a day (this amount seems unlikely and may be an error in the Doctor’s notes).^[50] 
    4. (d)
       In 2013, he described to Dr Winten^[51] that he had experienced years of upper limb symptoms since the push bike incident in 2006, including stiffness, right tingling and parietal headaches.^[52]
    5. (e)
       In about July 2017, the plaintiff saw Dr Gleeson in relation to sleeping problems. She noted he suffered spinal cord compression secondary to a bike accident and shoulder pain amongst other medical conditions.

Documentary Medical Evidence prior to the accident

36. [36]
    Counsel for the defendants provided a chronology in a table which helpfully summarises relevant details of the plaintiff’s medical status as recorded in medical records prior to and after the accident.^[53] Relevantly the tab entries confirm the significant pain and injury the plaintiff suffered to his cervical spine, shoulder and back after his bicycle accident in 2006. The chronology also reflects he suffered pain to his hip and lumbar spine due to arthritis in his hip.
37. [37]
    The plaintiff attended the LKGP between 23 November 2012 and 6 March 2020. Dr Winten was his primary general practitioner until February 2018. After that it appears he primarily saw Dr Malyszek. Unfortunately, neither doctor was called to give evidence, which I consider may have assisted the court to interpret the medical notes and to compare the plaintiff’s pre- and post-accident physical and mental health. I appreciate and accept both doctors may not have been available to give evidence.  I draw no adverse inference against the plaintiff because they were not called as witnesses. However, the records were tendered by consent for all purposes, and I accept the accuracy of what is contained in them.
38. [38]
    From his first visit to the LKGP, the plaintiff complained of shoulder and neck pain. In July 2013, the plaintiff complained to Dr Winten of shoulder discomfort and stiffness, parietal headaches, hip soreness, cervical pain when aggravated with increase in upper limb load, spasms, and hand paraesthesia. It was noted he had severe osteoarthritis in his left hip, had seen an orthopaedic surgeon the previous year and was trying to defer a left hip replacement until he was older. He was prescribed Celebrex and Lyrica for pain. The plaintiff attributed his cervical symptoms to the bicycle accident.^[54]
39. [39]
    On 24 July 2013, Dr Winten referred him for neck imaging. On 5 August 2013, the plaintiff underwent a CT cervical spine test which showed “cervical spondylosis to account for nerve root compression on either side of site. C4/C5 exit foraminal stenosis on the right is thought to be the most likely cause for current shoulder pain and paraesthesia.” ^[55] A cervical nerve root sleave injection was recommended. 
40. [40]
    On 29 August 2013, Dr Winten referred the plaintiff to the Royal Brisbane Hospital’s neurosurgery department. On 29 November 2013, Mr Swete Kelly, specialist musculoskeletal physiotherapist examined him.
41. [41]
    On 29 November 2013, Mr Swete Kelly wrote to Dr Winten. Mr Swete Kelly reviewed the plaintiff on 29 November 2013. The plaintiff complained of scapular discomfort which increased with upper limb load and if aggravated, caused cervical pain and headaches. He also experienced bilateral forearm spasms, extensor spasms and left-hand paraesthesia. He attributed the symptoms to the bike accident in 2006. Since the plaintiff underwent a C5-6 fusion, he gradually experienced increased neck and scapular discomfort.  He also mentioned that he had experienced some depressive symptoms.  Mr Swete Kelly noted that it appeared that the plaintiff had chronic pain, maladaptive posture, scapular posture, degenerative changes of the cervical spine and signs of neuro tissue irritation but not radiculopathy. He treated the plaintiff until 24 March 2014.
42. [42]
    On 24 March 2014, Mr Swete Kelly sent a letter to Dr Winten, the plaintiff’s treating doctor, to the effect that the plaintiff reported feeling approximately 70 per cent improvement since commencing physiotherapy treatment. It was also noted that the plaintiff still had some pain, at a “lower level and not intense”, no headaches, continued paraesthesia of the fingers, full pain-free range of movement of the shoulders, and tightness at the end range of cervical rotation. In conclusion, Mr Swete Kelly said the plaintiff had improved significantly, but required further strengthening to limit the risk of relapse, especially with respect to returning to the workforce. He recommended the plaintiff attempt further physiotherapy and see an occupational therapist.^[56]  There is no evidence the plaintiff undertook these recommendations.
43. [43]
    Between 20 May 2014 and 11 August 2017, the plaintiff attended Dr Winten or other general practitioners at LKGP on approximately 16 occasions. Doctors continued to prescribe Celebrex, Lyrica, Lexapro and Norspan. On 5 February 2016, the plaintiff reported increased hip pain after weekly cricket sessions and referred to using Norspan pain relief patches for relief.^[57]
44. [44]
    On 22 November 2016, the plaintiff saw Dr Winten and reported he was unhappy at the call centre and had not been playing cricket in the last few months. Dr Winten increased his Lexapro dose to 30 milligrams until the plaintiff was happier at work. On 8 and 9 May 2017, three months before the accident, the plaintiff again complained about work, issues with stress and depression in the past, and requested a medical certificate for stress leave while Lexapro “kicked in” and because his hip was bad. ^[58] During a consultation with Dr Winten on 15 May 2017, the plaintiff said his mood was better, he was back on Lexapro and had returned to work and was using Norspan for hip pain. The remaining appointments prior to the accident centred on his hip pain and poor sleep.
45. [45]
    Between 2015 and 2017, annual General Practitioner Management Plans were completed by medical staff at the LKGP with input from the plaintiff. The medical history entries are almost identical in each plan. The medication listed includes medication for pain relief and depression consistent with Dr Winten’s consultation records. The physical treatment goals listed in the plan dated 15 May 2017, three months before the accident, refer to hip/neck osteoarthritis and states that the plaintiff is “recovering from recent MVA”.^[59] This entry is curious because it appears to be referring to an earlier motor vehicle accident. The ‘Mental Health Goals Section’ refers to “medication” and “counselling through employment”. The plaintiff was not questioned during evidence by either counsel about the “recent MVA” entry in May 2017, so I do not rely on it in any way.
46. [46]
    On 20 July 2017, Dr Gleeson recorded in a letter to Dr Winten the plaintiff’s medical history, which included a history of his neck, shoulder and back injuries. Dr Gleeson specifically listed eight medical conditions, including spinal cord compression, shoulder pain and hip osteoarthritis. The plaintiff reported his significant problems with memory, concentration and irritability to Dr Gleeson. Dr Gleeson’s written observation notes indicate that the plaintiff’s pain was not managed well, and his consumption of alcohol and cannabis is excessive.^[60]              

The visit to Dr Winten on the morning of the accident, prior to the accident

47. [47]
    On 15 August 2017, the plaintiff attended Dr Winten on his way to work. The plaintiff gave evidence this was due to the pain in his left hip, which was increasing to the point where he needed treatment.^[61] Dr Winten provided him with a letter for work. The letter states as follows:

“This is to certify that today I have seen Mr Ross Eustace, would benefit from an ergonomic chair due to his medical history of hip/scapular/shoulder and cervical spine conditions.”^[62] 

The plaintiff also received prescriptions for Celebrex, Symbicort and Norspan. 

Submissions about cervical spine and lower back pain and injury prior to accident

48. [48]
    The plaintiff submits the main reason for attending Dr Winten on the morning of the accident was because of the pain in his hip. The defendants submit the wording of the letter is consistent with ongoing difficulties to the plaintiff’s shoulder and cervical spine, as well as his hip.
49. [49]
    The plaintiff submits the LKGP medical records confirm there is no record of any discussion by the plaintiff with doctors about his cervical symptoms during consultations between 24 March 2014 and the accident.
50. [50]
    The plaintiff submits that his evidence, when viewed in combination with the LKGP records, supports the contention that, between 30 December 2013 and 15 August 2017, there is no reference to the plaintiff suffering pain to his neck, shoulder or lumbar spine, apart from repeat summaries in the records of the patient’s medical history.
51. [51]
    The plaintiff submits this evidence shows that, after a flare up of his cervical spine symptoms in August 2013, the plaintiff’s cervical related pain was successfully treated by physiotherapist Mr Swete Kelly and the plaintiff’s shoulder, neck and lumbar injuries, and symptoms. had abated as at the time of the accident.
52. [52]
    The defendants submit the plaintiff’s reliance on an absence of any reference to neurological symptomology, and the absence of a prescription of Lyrica in the GP records after approximately 2014, does not mean he did not have neck and arm symptoms. The defendants submit that this conclusion is supported by the following evidence:

    1. (a)
       The General Practitioner Management Plan dated 15 May 2017 (three months before the accident) which refers to “Active – 2007 Spinal cord compression (cervical cord compression from pushbike accident; RC6 nerve impingement, LC& Nerve impingement; C5/6 discectomy/fusion/bone graft)”. The plan also notes as part of the treatment plan: “Hip/Neck osteoarthritis Goal: reduce duration and intensity of pain”.
    2. (b)
       Dr Winten’s letter on the day of, but prior to the accident advising of the desirability of an ergonomic chair at work due to the plaintiff’s medical history of “hip/scapula/shoulder and cervical spine conditions”.^[63]
    3. (c)
       Mr Swete Kelly’s report of 24 March 2014 which advises, that whilst the plaintiff has improved significantly, he still “requires further strengthening to limit the risk of relapses especially returning to the workforce”. Further, there is no evidence the plaintiff continued to attend further physiotherapy and occupational therapy prior to returning to work, despite Mr Swete Kelly’s recommendation for him to do so.^[64]
53. [53]
    The defendants, in their written outline of submissions, referred to six consultations which recorded the plaintiff reported “pain in the neck and arm symptoms prior to the accident”.^[65] The first four of six records, that the defendants’ legal representatives refer to, are from consultations prior to March 2014. The last two examples arise from consultations after the accident and merely confirm that the plaintiff generally has a history of ongoing neck and arm pain since 2007.

Conclusions regarding the level of pain and injury prior to accident

54. [54]
    The plaintiff indisputably had significant cervical, and chronic neck and back pain which waxed and waned from the time of his bike accident in 2006. The discectomy was partially successful, but his symptoms continued. I accept the plaintiff “[felt] approximately 70 percent improved” as of 24 March 2014, after physiotherapy treatment with Mr Swete Kelly.  I also accept the absence of specific reference to his neck and back pain from 2014 until the accident in the LKGP records is consistent with some improvement in his symptoms. However, Mr Swete Kelly emphasised in his letter dated 24 March 2014 that the plaintiff continued to experience some pain, paraesthesia of the fingers, and still complained of tightness at the end range of cervical rotation. Mr Swete Kelly’s letter makes clear that the plaintiff required further strengthening to prevent relapses especially when returning to the workforce. There is no evidence to suggest the plaintiff continued rehabilitative treatment. I accept the plaintiff’s neck, shoulder and back pain appear to have improved somewhat in the period leading up to the accident, however the plaintiff had a myriad of health problems during this pre-accident period including a very painful hip, sleep disturbance and depressive symptoms.
55. [55]
    Dr Winton’s letter provided to the plaintiff for an ergonomic chair, on 15 August 2017, before the accident, is powerful evidence that I consider confirms the plaintiff’s hip/scapula/shoulder and cervical spine conditions were ongoing as at the date of the accident. 
56. [56]
    I am satisfied on balance that the plaintiff was still suffering neck, shoulder and back pain after his physiotherapy treatment with Mr Swete-Kelly and until the accident. The plaintiff himself confirmed as much in his evidence and in his consultation with Dr Bell.^[66] It appears that physiotherapy assisted to alleviate the plaintiff’s symptoms to a significant degree as of March 2014, but to what extent is not clear on the evidence. Both Dr Bell and Dr Dickinson confirm, having regard to CT cervical spine reports in 2013 and 2017, and all medical records at their disposal, that the plaintiff suffered significant pre-existing neck and back pain prior to and at the time of the accident.^[67]

The accident on 17 August 2017

Plaintiff’s evidence

57. [57]
    The plaintiff left the LKGP on 17 August 2017, to drive to work in his Ford Futura Sedan. As he approached the intersection of Maroochy Boulevard and the Sunshine Coast Motorway, he stopped four to five cars back in the right-hand lane of two lanes travelling straight through the intersection.^[68]  There was a right-turn lane to the right of the plaintiff.  As the right arrow changed to green, he was still stationery. He had his left foot on the brake. The front of the first defendant’s car (a BMW X6 wagon) hit the rear of the plaintiff’s car whilst the plaintiff was holding the steering wheel with his right hand.^[69]  The impact caused a dent to the boot of the plaintiff’s car.^[70] 
58. [58]
    The plaintiff’s recollection was that his car did not move as a result of the impact.^[71] The plaintiff had his seatbelt on, but he was “thrown forward” in his car.^[72] The plaintiff was in shock. He looked around and saw the first defendant motion to him to follow her. As the cars in front of him moved off, the plaintiff pulled out and drove left at the intersection, following the first defendant’s car. He followed her into a Mazda caryard. The plaintiff took photographs of each car, and asked if the first defendant was ok, but she didn’t respond.  The first defendant refused to provide him with her contact details and intimated that she had not caused the dent to the boot.  A bystander assisted the plaintiff to obtain the first defendant’s details. The plaintiff then went to work.
59. [59]
    Under cross-examination, the plaintiff denied the suggestion that the collision was only a “very mild bump”.^[73]  He denied saying to Dr Bell, orthopaedic specialist on 22 May 2018 that the car behind him let off the brakes and rolled into the rear of his car.^[74]  He agreed the plastic covering on the first defendant’s number plate came into contact with his car’s tow bar and fractured the plastic. He denied that there was damage to his car before the incident occurred, although he subsequently clarified that some damage to the front of the car was the result of an earlier incident with his brother-in-law. Photographs of other parts of the first defendant’s car show other damage and marks.^[75]

The first defendant’s evidence

60. [60]
    Ms Yvette Dubrava, the first defendant, gave telephone evidence. She is a retired teacher and confirmed that she had been involved in the accident on 15 August 2017.  Ms Dubrava could not recall where she was travelling that morning but confirmed she was heading towards Maroochydore. She stopped at a red light behind a column of cars. She estimated she would have been about tenth in the line of the cars from the intersection on a slight slope. She waited for the light to turn green which she saw occur in the distance.  She looked to the right, then estimated the time that the cars ahead of her would take to start moving. Something caught her attention, she released the foot brake and her car moved forward.^[76]  She heard what she described as a very little noise, like a “Tch” so she jumped on the brake.^[77] She saw the plaintiff’s car stationary in front of her and wondered whether her vehicle had touched his. She could not describe how hard her car impacted the plaintiff’s car.  Her recollection was that she did not even know her car had made contact. She recalled there was damage to the front plastic grill of her car.^[78]
61. [61]
    Cross-examination of Ms Dubrava was difficult to follow for several reasons. She gave evidence by phone, it was a bad line, and she has a strong accent. Ms Dubrava said she had recently undergone surgery and had stitches in her head, so she was not clear in her recollection of the incident.^[79] In addition to difficulties hearing and understanding Ms Dubrava, she was not an impressive witness. She did not answer questions in a responsive manner. She did not seem to have a consistent memory of the incident. Although liability was admitted by the defence, she continued to deny any fault on her part. Defence counsel conceded that the first plaintiff gave a prior inconsistent version of how the incident occurred to an investigator on 6 June 2018, much closer in time to the accident. In the statement she described the incident as follows:

“my vehicle was stationary approximately 1.5 metres behind the vehicle in front and I had my foot firmly on the brake.  And whilst waiting for the lights to turn green I looked around.  I looked to my right and I saw the other vehicles around me moving forward so I lifted my foot slowly off the brake.”^[80]

62. [62]
    Ms Dubrava agreed that she became aware that she must have hit the plaintiff’s car after he jumped out of his stationary vehicle, waving his arms. During her evidence, Ms Dubrava was shown photographs of both motor vehicles. She confirmed the photos showed some damage to the front of her car.  Ms Debrava disagreed that the photograph of the rear of the plaintiff’s car showed the boot to be dented. I note that it clearly was. Ms Dubrava accepted that her vehicle collided with the rear of the plaintiff’s car but disagreed that the collision was more than a minor bump.^[81] She agreed she was issued with a traffic infringement notice in relation to the accident.
63. [63]
    Ms Dubrava did not agree with most suggestions put to her by counsel for the plaintiff, even when they were matters admitted by the defence in the pleadings.  Ms Dubrava at one stage, continued to avoid giving responsive answers about the accident. She stated she was in shock at the time of the accident as an explanation for evading probing questions.^[82] I did not find Ms Dubrava to be a reliable witness. I am concerned the shock she was in at the time may have affected her memory of the incident. I also consider she was trying to distance herself from causing the accident.

The nature and extent of force of the impact to the plaintiff

64. [64]
    The plaintiff maintained that, although his car did not move when the first defendant collided with the rear of his car, his body was thrown forward.^[83] Neither the plaintiff nor the defence called expert evidence concerning whether the plaintiff’s body could be projected forward upon impact if his car did not move. The first defendant’s evidence does not assist me because I reject it as unreliable on this issue.
65. [65]
    A photograph of the rear of the first defendant’s vehicle shows a dent across the breadth of the boot, indicating the collision caused more than a minor impact.^[84] I am satisfied there was enough force to cause more than minor damage to the car. The damage to the car is consistent with the top front of the first defendant’s car colliding with the top back area of the plaintiff’s boot. The force was not sufficient to move the plaintiff’s car any significant distance or into the back of the stationary car in front of him.
66. [66]
    The plaintiff said, as a result of the collision his back and neck “got aggravated” and were very sore. He described it as “like whiplash.”^[85] The only other relevant evidence on this issue comes from orthopaedic expert, Dr Bell, called by the plaintiff. Under cross-examination, Mr Morton suggested to Dr Bell that it would be difficult for the plaintiff to have been injured if the plaintiff’s vehicle did not move forward at the point of impact. Dr Bell disagreed and said that there would have been force imparted on the vehicle that would have translated through the vehicle to some extent, regardless of whether the vehicle moved forward or not.^[86] Dr Bell added that the plaintiff does not present as a typical case of whiplash given his significant previous history of cervical spine surgery and dysfunction.^[87]
67. [67]
    Dr Bell conceded that, if the defendant’s car rolled into the plaintiff’s car at a few kilometres an hour, it is less likely he suffered anything other than a very minor injury, than if it was a higher-impact force.^[88] Dr Bell agreed that the plaintiff’s “cervical spine was in such a pre-accident state that even with a very, very minor insult, he could have suffered increased symptomatology.”^[89]
68. [68]
    Dr Dickinson, orthopaedic expert called by the defendants did not provide an opinion on whether the defendant’s body could have moved forward or been impacted if his vehicle did not move.

Conclusion regarding the nature and extent of force suffered by the plaintiff

69. [69]
    Having regard to the plaintiff’s evidence of the collision, the photograph of damage to plaintiff’s boot, Dr Bell’s evidence and the defendant’s admission of liability, specifically that the first defendant’s car collided with the plaintiff’s car, I am satisfied the collision was relatively minor, but of sufficient force to cause, a “big dent” to the plaintiff’s car boot.^[90] I note the plaintiff was wearing his seatbelt, however, logically the impact must have caused some force or movement to the car carriage, even if minor and even if the plaintiff did not notice the movement or alternatively does not remember it. The plaintiff’s report to his doctor during LKGP consultations over the following weeks (summarized below), as well as his attendance for physiotherapy treatment until 24 April 2018 (summarized below) are consistent with him suffering some initial aggravation of his neck and back pain.
70. [70]
    There is therefore a strong temporal connection between the collision and the symptoms complained of by the plaintiff. I am satisfied the collision resulted in some force to the plaintiff’s body of a whiplash nature which caused some aggravation of his pre-existing pain and/or injury. 

Evidence of pain and injury after the accident

Plaintiff’s evidence

71. [71]
    The plaintiff described his neck and lower back as feeling “very sore” because of the accident. He described the pain as aggravated compared to before the accident.^[91]  By the time the plaintiff arrived at work that day his lower back was really aching.  His use of the mouse cramped up his right shoulder and he had sharp stabbing pains which eventually went up to his neck and into his ear. He left work a couple of hours after the accident and went home because he had a headache. He took a few Panadol tablets. The next day he woke still sore and went to the doctor.^[92]
72. [72]
    When the plaintiff visited the doctor his neck and lower back felt very sore; and he had pins and needles “like electric shocks” shooting through his arms.^[93]  He did not experience any pins and needles or electric shocks in his arms in the months leading up to the accident.^[94] He had about three days off work.  He recalled returning to work on reduced hours of three hours a day five days a week.^[95]  He gradually increased his working hours up to six hours a day which was as much as he could work without a headache.^[96]  Prior to the accident, he worked nine hour shifts four days a week.^[97]  The plaintiff changed his work routine to accommodate his pain by altering the way he moved, pushed, and pulled items.  He eventually was provided with a stand-up desk.
73. [73]
    Under cross-examination, the plaintiff agreed that Dr Winten saw him on 16 August 2017, the day after the accident, and again on 18 August 2017.^[98]  The plaintiff at first agreed that he may have told Dr Winten on 18 August that there was some improvement.^[99]  The plaintiff later contradicted this evidence and said that he did not tell Dr Winten he had some improvement.^[100]  When contradictory passages from Dr Winten’s notes were put to him, the plaintiff replied he was not 100 per cent sure what he told the doctor. He denied telling Dr Winton he had made some improvement between 16 and 18 August 2017.^[101] 
74. [74]
    The medication the plaintiff took during this period included Lyrica, Celebrex, Lexapro, and he used Nurofen patches in the months after the accident.^[102] 
75. [75]
    The plaintiff maintained that he started having severe headaches on the day of the motor vehicle accident which continued daily. He described the headaches as piercing, numbing and so severe he would have to go home early from work. The plaintiff denied he had headaches before the accident.^[103]
76. [76]
    When it was put to him that he did not report experiencing headaches until attending his physiotherapist, Ms Paxton, on 31 August 2017, he maintained that he had headaches from the day of the accident.^[104]
77. [77]
    The plaintiff commenced post-accident treatment with Ms Paxton, physiotherapist at Warana SportsCare on 31 August 2017. He described physiotherapy as a band aid solution. The plaintiff agreed that, as part of his treatment, he was required to complete pain questionnaires. The plaintiff agreed that he had marked boxes on the questionnaires titled Neck Disability Questionnaire and Oswestry Index Questionnaire supplied during his sessions with Ms Paxton.^[105] The plaintiff completed the questionnaires every few months between 31 August 2017 and 15 February 2018.
78. [78]
    The completed questionnaires are inconsistent with the plaintiff’s evidence that he suffered severe headaches and pain daily.^[106] I cannot reconcile his evidence in this regard, with the completed questionnaires, completed by him, and the accuracy of which I accept. The pattern of response in the documents is consistent with a steady improvement in his symptoms.
79. [79]
    The plaintiff conceded he could have told Ms Paxton on 7 September 2017 that he felt he was back to 80 per cent of his pre-accident function but would have done so because he wanted to get back to work. He could not remember telling her on 14 September 2017 that he was back to 90 per cent of his pre-accident function, but commented “that’s probably after doing three, four hours a day” [of work]. ^[107]
80. [80]
    The plaintiff agreed he saw Ms Paxton on 23 April 2018. Her notes record the plaintiff reporting that his “Shoulder ISQ (in status quo). Neck sore, lower back sore but now feels back to pre MVA status”.^[108] It was not disputed by the plaintiff that “pre MVA status” is a shorthand notation meaning: pre- motor vehicle accident status. The plaintiff denied reporting to Ms Paxton that he was back to his pre MVA status. He maintained there was no way he was in good shape at that time.^[109]

Physiotherapist Ms Paxton’s evidence

81. [81]
    It is timely, at this point, to refer to Ms Paxton’s evidence. She was called to give evidence by the defendants. Ms Paxton practised as a physiotherapist at the Warana SportsCare Practice Sunshine Coast. She treated the plaintiff between 31 August 2017 and 23 April 2018 and again in 2019.^[110] Ms Paxton made her notes contemporaneously with information reported by a patient.^[111] Ms Paxton used the word “radiculopathy” as terminology she uses for nerve pain.^[112]
82. [82]
    Ms Paxton relevantly reported:^[113]

1. (a)
   7 September 2017: Minimal change. Central lower back, right [cervical] stiffness/pain headache. …Currently feels 80% of pre MVA function…but pain is worse.
2. (b)
   14 September 2017: physio relief [for approximately] 24 hours. Currently 5 days a week - 5 hours/day - aggravated after first couple of hours (working hours). Central lower back. [Right cervical] stiffness/pain. eels 90% of pre MVA function... Lower back-neck pain.
3. (c)
   13 December 2017: still having issues with central lower back…. Work: office 6 hr/day 5 days a week… Was doing 8 hrs but pinched nerve in neck, ongoing chronic neck pain. Celebrex, Norspan and Lyrica… Awaiting [hip operation].
4. (d)
   27 December 2017: Back felt good post Rx. Overall improvement. Not sore… ongoing chronic neck pain… awaiting [hip replacement].
5. (e)
   3 January 2018: Sore for 24-48 hours. Then back to baseline. Feels it is connected to the [left] hip…Still has tension through [right] scapulae.
6. (f)
   10 January 2018: Still same through lower back…Hip is constant. Back to work Monday…6 hrs/day at present. Been okay. [right] scapula been sore from doing car driving game over the holidays. Lower back still central L=R. Currently 70-80%.
7. (g)
   25 January 2018: [Right] superior scapular and [right] shoulder aching into anterior arm. Made redundant today. Accumulated pain over the week, recovers over the weekend. Ceased the Lyrica. Ceased Norspan a few weeks ago.
8. (h)
   8 February 2018: [Lumbar] stiffness and pain…Hip is still major issue. R UT tension/pinching…. Started Lyrica again…helped ease [right] arm pain. Celebrex. Doing some work for brother-in-law driving to deliver letterboxes.
9. (i)
   15 February 2018: [Lumbar] stiffness and pain... doing delivery job – delivering flat pack mailboxes – 10-15kg in weight. Intermittently doing exercises. Able to do lawns/whipper snipping [approximately] one hour. Lyrica controls severe R UL Pain… [main issues hip and right shoulder /nerve pain].
10. (j)
    22 February 2018: …reaching aggravates R shoulder/UL – “dead arm”... Lumber stiffness and pain better overall.
11. (k)
    8 March 2018: Hurt arm fixing car the weekend after last [treatment]. Has settled. [Right] scapular pain main issue-settles with rest. Did 4 hours driving for work the other day – sore after that through [lumbar]. Lyrica.
12. (l)
    22 March 2018. [Right] anterior shoulder /arm pain ongoing – pain with swimming. Lower back stiff and sore... Lyrica.
13. (m)
    6 April 2018: [Right] anterior shoulder/arm pain ongoing. -pain with swimming. Lower back stiff and sore…Lyrica.
14. (n)
    9 April 2018 Left hip getting worse. No major change with neck – stiff. Lower back still present but might be from hip. Had fall at work backwards onto wire mesh.
15. (o)
    23 April 2018: Shoulder ISQ. Neck sore, lower back sore but now feels back to pre MVA status.  Plan: Review by phone in [2 weeks]. ^[114]

83. [83]
    There was no follow up two-week review. The plaintiff ceased physiotherapy sessions with Ms Paxton until 7 March 2019, which was 11 months later. There is no evidence as to why the plaintiff stopped seeing Ms Paxton for nearly a year. Counsel for the plaintiff submits that treatment may have ceased for financial reasons. However, this submission is not supported by any evidence. One possible inference to be drawn (as submitted by the defendants) is that the sessions ceased because, as of 23 April 2018, the plaintiff was no longer experiencing any significant shoulder, arm or back pain, beyond that which he had become accustomed to prior to the subject accident, and hence no longer required Ms Paxton’s services. This finding is consistent with Ms Paxton’s notes from 23 April 2018.
84. [84]
    Eleven months later, the plaintiff recommenced treatment with Ms Paxton. On 7 March 2019, the plaintiff reported he was seeing an orthopaedic surgeon for ongoing neck issues, with a plan for future surgery. Symptoms included “shoulder/neural pain on the right was ongoing - radiating down arm to elbow. Constant bilateral [pins and needles] in hands/fingers.”^[115]
85. [85]
    Under cross-examination, Ms Paxton agreed she first saw the plaintiff on 31 August 2017 he described his symptoms worsening over the day of the accident. He described suffering lower back pain, intermittent numbness, scapular pain, cervical stiffness and right “back of scull” headaches.  The plaintiff referred to a cervical injury he sustained in 2006 and described the related pain as manageable and said he was awaiting a left hip replacement. He described aggravating factors, including using his right arm, sitting, and standing.
86. [86]
    Ms Paxton agreed that the focus of filling out questionaries was for the patient to record the pain they experienced at the particular point in time they filled out the questionnaire.^[116] Ms Paxton agreed that she initially gave the plaintiff a score of “42%” based his questionnaire results which indicates a moderate level of disability, and that on 23 April 2018 his score was 40 per cent based on the neck disability questionnaire he filled out on 23 April 2018.^[117] Counsel for the plaintiff suggested this was consistent with the plaintiff’s condition not significantly improving since his first appointment. Ms Paxton suggested that it may be an indication the plaintiff’s reporting was unreliable.^[118]
87. [87]
    In re-examination, the defendants’ counsel highlighted to Ms Paxton that the disability score recorded by her for the questionnaire completed by the plaintiff on 15 February 2018 was only 22 per cent.  Ms Paxton confirmed at that point, the range for mild disability was 10 to 28 per cent, so the disability score fell within that range for the calculation on that date.
88. [88]
    I consider that evidence of the various percentages that Ms Paxton calculated from the disability questionnaires completed by the plaintiff does not assist me to determine the difference if any, between the plaintiff’s pain and injury prior to and after the accident. This is because the plaintiff’s answers to the questionnaire are inconsistent with his evidence at trial of headaches and pain he suffered during that period and which he claims he continues to suffer.
89. [89]
    What is significant, in my view, is the contemporaneous reporting by Ms Paxton of the plaintiff’s pain and disability which I find to be accurate. In a clinical setting there is no reason why the plaintiff would not be reliably reporting his symptoms and extent of pain.

Other relevant medical evidence prior to 23 April 2018

90. [90]
    On 8 March 2018, the plaintiff attended Mr Connell, physiotherapist, at the Musculoskeletal Physiotherapy Screening Clinic for ongoing issues related to his left hip pain. Screening questionnaires revealed high levels of pain, low quality of life, limited ability to manage his condition, moderate levels of depression and stress, and high levels of disability. Mr Connell recorded a history from the plaintiff.  I note:

1. (a)
   The plaintiff did not mention the 2017 accident to Mr Connell. He referred to his hip, not his neck/shoulder as the injury that was causing him pain as of 9 March 2018.
2. (b)
   The plaintiff said his neck and shoulder symptoms were related to an accident in 2007.
3. (c)
   He reported that his neck, shoulder and back symptoms were being treated with regular physiotherapy which was “temporarily beneficial”. However, physiotherapy treatment had been ineffective in treating his hip pain.
4. (d)
   X-ray of the hip showed advanced degenerative changes. The plaintiff “… is currently reliant on 200mg Celebrex for breakthrough pain relief and has been unable to participate in any meaningful exercise or sports for the last three years.  He is extremely limited in his activities of daily living, including household chores, negotiating stairs and walking.” (my emphasis)
5. (e)
   He rated his general health as poor due to long standing history of smoking and excessive alcohol use as well as problems with sleep apnoea, anxiety and depression.  Mr Connell considered that the plaintiff was experiencing chronic left hip pain which had become worse in the previous three years, and which significantly restricted his daily activities, meaningful exercise and sporting pursuits.^[119] 

91. [91]
    I consider that from what the plaintiff told Mr Connell, in combination with other evidence which I accept, is that, as of 8 March 2018, the plaintiff was suffering significant pain and debilitation due to the degeneration of his hip. Further, it was the hip injury rather than injuries related to the accident which likely prevented the plaintiff from working, playing sport and household duties.
92. [92]
    Consistent with this finding, on 10 April 2018, two weeks prior to his last physiotherapy appointment with Ms Paxton, the plaintiff attended LKGP for his hip problem and made no mention of his neck or back.

Medical evidence subsequent to 23 April 2018

93. [93]
    On 4 May 2018, the plaintiff attended LKGP and reported right shoulder pain because his “arm slipped when undoing a bolt on a car, few months ago, tender [anterior] right shoulder … increase”. ^[120] In the ultrasound request to Sunshine Coast Radiology, Dr Malyszek notes included reference to an injured right shoulder – undoing nut on a car a few months ago. Felt ripping pain in right shoulder? Tendinopathy.^[121]
94. [94]
    On 25 May 2018 Mr Connell again reviewed the plaintiff after he had attended five physiotherapy sessions on his lumbar spine in relation to his hip. The plaintiff reported further deterioration in his hip pain and function.  Mr Connell recommended referral for hip surgery.^[122]
95. [95]
    On 28 May 2018, the plaintiff attended Dr Malyszek for the ultrasound results linked to hurting his right arm/shoulder while fixing the car.^[123] Dr Malyszek noted the results suggested further radiology and possible steroid injection to the right shoulder were required.^[124] 
96. [96]
    Instructively, the LKGP records do not refer to the accident until the consultation on 15 June 2018, when the LKGP notes mention a medical review as per CMC Lawyers.^[125] On this date Dr Malyszek referred the plaintiff to the orthopaedic department at RWBH in relation to cervical issues. From this point on the LKGP records speak of further legal requests, the progress of “the legal aspect” and exploration of further cervical spine surgery.
97. [97]
    On 27 July 2018, the plaintiff saw Dr Parr, an orthopaedic registrar for Dr Zeller.^[126]  Under cross examination the plaintiff agreed he told Dr Parr about his surgery in 2007 and that in the previous six months he had increasing levels of pain in his neck.^[127] In his report, Dr Parr referred to an MRI scan which showed a C5/6 degeneration with canal stenosis and C6/7 degeneration with stenosis. He noted that the plaintiff consented to surgery which was subsequently performed by Dr Zeller.
98. [98]
    As well as his report, Dr Parr appears to have made notes in hospital records of what the plaintiff told him.^[128] Dr Parr was not called at trial. The notes were tendered by consent. Those notes are difficult to decipher. However, I accept the plaintiff’s interpretation of them as stating: “Aug 2017 – MVA – [increased] pain. Arm pain – Bilateral pins and needles. R>L thumb little – right shoulder burning.”
99. [99]
    On 26 August 2018, the plaintiff underwent a hip replacement performed by Dr Rodda.^[129] He undertook rehabilitation. The plaintiff claimed his hip pain ceased in the months following the operation to the point he was essentially pain free apart from a bit of stinging every now and then.^[130]  At the time of giving evidence during this trial the plaintiff described his hip as “pretty strong” as.^[131] 
100. [100]
     The remaining LKGP records reflect the plaintiff continued to suffer neck and shoulder pain and paraesthesia after 15 June 2018.
101. [101]
     On 14 June 2019, Dr Zeller, orthopaedic surgeon, performed an operation on the plaintiff’s neck. The plaintiff described the pain in his neck after the operation as excruciating, probably a 9 out of 10, particularly the right shoulder and scapular area.  He said the pain did not diminish after the operation.^[132] The pain in his arms did not ease.^[133] 
102. [102]
     The plaintiff gave evidence that, prior to the operation in June 2019, he suffered pins and needles, tingling and elbow joint soreness to his arm and both hands. He described the pain suffered when hyperextending his arm as like an electric shock or a cramp.^[134]
103. [103]
     It is not disputed that the 2019 neck surgery did not improve the plaintiff’s pain. At trial, the plaintiff described continuing to feel neck soreness including dull pain to the back of the neck and the right shoulder.^[135] He described his current condition as feeling like someone had given him a dead arm that wouldn’t go away. When he lifted things, it felt like someone pushing his arm down.  The plaintiff described his lower back as aching after excessive use.  He said repetitive work with the right arm “feels like an ear bashing and then excruciating headache if I don’t stop”.^[136]

The nature and extent (if any) of the plaintiff’s physical injuries suffered

104. [104]
     I have already concluded that I am satisfied the plaintiff suffered some aggravation of his pre-existing injury due to the accident. The plaintiff submits the accident caused him to suffer a permanent aggravation.
105. [105]
     The evidence I have considered to determine if the aggravation was temporary or permanent includes the plaintiff’s evidence, all medical records, Ms Paxton’s evidence and the expert evidence. 

Ms Paxton

106. [106]
     Ms Paxton’s notes from treatment sessions provide evidence that the plaintiff’s condition continued to improve up until 23 April 2018, and that the plaintiff reported to her on that date that, although his neck and back were still sore, he felt back to pre-motor vehicle accident status. Under cross-examination, the plaintiff denied he reported this to Ms Paxton. However, it was not suggested to Ms Paxton by the plaintiff’s counsel under cross-examination that the plaintiff did not report to her that his neck and lower back “felt back” to pre MVA status. Further, the plaintiff’s written submissions do not ask the court to find Ms Paxton’s evidence should be rejected on this point. Rather the plaintiff submits: “The plaintiff allegedly said to Ms Paxton that he felt he was back to his pre-motor accident status. However, the fact is that he was not because that status, as submitted above, did not involve active treatment for several years leading up to the motor accident.”^[137](plaintiff’s bold type)
107. [107]
     The plaintiff’s counsel seems to be submitting that I reject the plaintiff’s statement that he felt he was back to pre MVA status on the basis he only felt, rather than was back to his pre-accident status. The problem with that submission is that the plaintiff was in the best position to know if his pain and function was the same as prior to the accident. This is what he reported. It is a telling statement reinforced by the cessation of that treatment.
108. [108]
     I accept that Ms Paxton made accurate, contemporaneous notes during her treatment sessions. I reject the plaintiff’s evidence under cross-examination that he did not report to her that he felt back to his pre MVA status. I consider this aspect of his evidence to be unreliable and that he was attempting to deny her evidence was correct.

109. [109]
     I am satisfied the plaintiff made the statement to Ms Paxton. I am satisfied that at the time of that consultation with her, he believed his neck and back symptoms had improved to the point where they were no worse than prior to the accident.

Medical records

110. [110]
     I consider my conclusion is consistent with the medical records and documentary evidence I have summarized above which reveal the plaintiff suffered several unrelated accidents and injuries in the few months between February 2018 and May 2018. For example, he suffered a separate shoulder injury causing ripping pain from working on his car in the months prior to 8 May 2018 and had a fall at work backwards onto wire mesh on 9 April 2018. The plaintiff admitted during evidence he continued to work on and off for his brother-in-law into 2019.^[138]

Experts

111. [111]
     The plaintiff submits I should prefer the evidence of orthopaedic specialists Dr Bell and Dr Zeller to that of Dr Dickinson that the accident caused the plaintiff to suffer a permanent aggravation.

Dr Bell

112. [112]
     Dr Bell first examined the plaintiff on 22 May 2018. He was not provided with any records from Warana Sportscare (Ms Paxton) after 13 March 2018, so he was unaware that the plaintiff had reported to Ms Paxton on 24 April 2018 that he felt back to his pre-accident status.^[139]  Dr Bell based his finding that the plaintiff suffered a permanent injury on a combination of:

1. (a)
   LKGP records, Stellar employment records and incomplete physiotherapy records.
2. (b)
   The plaintiff’s self-reporting about his injuries in which he mainly concentrated on pain felt to his right upper trapezial region, (the same arm which he had recently injured working on his car) which radiated up into the neck, occasional nerve root distribution pain and occasional lower back pain. Dr Bell states the plaintiff’s right upper limb radiculopathy is the primary complaint preventing office type work.
3. (c)
   The plaintiff’s self-reporting that he was no longer working because his productivity decreased, and he was made redundant. This is untrue for two reasons. Firstly, he had worked for his brother-in-law since he was made redundant. Secondly, he lost his employment at Stellar for reasons other than a decrease in productivity related to his symptoms.
4. (d)
   The plaintiff’s self-reporting about how the pain adversely affected household chores and driving.
5. (e)
   The plaintiff’s self-reporting that he had been playing cricket up until the accident, which was untrue. Medical records indicated he had ceased playing cricket prior to November 2016. The plaintiff conceded as much in evidence.^[140]
6. (f)
   Clinical examination which was based on self-reporting and examination of flexion.
7. (g)
   A 2013 CT scan of the plaintiff’s cervical spine.

113. [113]
     Dr Bell conceded during cross-examination that there was no objective evidence in the form of scans to show an aggravation of the plaintiff’s pre-accident condition. He agreed he relied on the plaintiff’s self-reporting and the plaintiff’s decision to undergo further cervical surgery in 2019.^[141]
114. [114]
     Dr Bell’s findings of increase in impairment to his lumbar spine of 3 per cent with 1 per cent being pre-existing do not appear to take into account the effect on his lumbar spine of his significant and debilitating hip injury. There is nothing in Dr Bell’s report to indicate the plaintiff reported how his hip injury affected him. Dr Bell does note that his lower back pain may improve after a total hip replacement.
115. [115]
     Dr Bell states his findings of an increase in impairment to his cervical spine of 1 per cent are based on his “further decreased recreational abilities”.^[142] As noted above, the plaintiff misreported that his recreational activities only ceased after the accident.
116. [116]
     Dr Bell’s conference note dated 21 May 2021 merely confirms his view that there was a deterioration in the plaintiff’s symptoms due to the accident because pre-accident the plaintiff was playing cricket and working full-time, whereas after the accident he was unable to play cricket and unable to work full-time.^[143] As I have highlighted above, the plaintiff misled Dr Bell about when he stopped playing cricket and why he stopped working for Stellar.
117. [117]
     Dr Bell’s second report dated 28 May 2021 is confined to noting a deterioration in the plaintiff’s self-reported neck and upper limb pain since the unsuccessful 2019 spine surgery and a recalculation of the plaintiff’s impairment rating.
118. [118]
     Significantly, Dr Bell conceded under cross-examination that, if the plaintiff’s symptoms, as perceived by him, had returned to what they were before the accident, that would make it more likely to be a temporary exacerbation of the pre-existing complaint.^[144] Dr Bell also conceded that if, after the plaintiff’s symptoms had settled to pre-accident status, the plaintiff then subsequently complained of increasing symptomatology at a later point in time, it was less likely that the increased symptomatology would be related to the motor vehicle accident, and would be more consistent with his ongoing degenerative cervical spine disease.^[145]

Dr Zeller

119. [119]
     Dr Zeller’s opinion in his report dated 5 April 2019, that further surgical intervention would not have been required but for the subject accident, is “based on the evidence provided by” the plaintiff.^[146] The plaintiff told Dr Zeller he did not have significant neck pain prior to the accident and had increased neck and arm pain after the accident. Dr Zeller did not have access to the other medical material provided to Drs Bell and Dickinson.  Dr Zeller conceded under cross-examination that, if the plaintiff had in fact had very little improvement in neck pain and chronic arm pain since the 2007 surgery, this would alter his opinion that further surgery had “advanced in time” due to the 2017 accident. Dr Zeller agreed that, if the plaintiff had reported to someone eight months after the accident, that he had returned to symptomology as it was prior to the accident, that would suggest that the motor vehicle accident was really of no relevance to the subsequent surgery.^[147]

Dr Dickinson

120. [120]
     Dr Dickinson was called by the defendants. It is not necessary to analyse Dr Dickinson’s reports or evidence because he considers the plaintiff suffered either no aggravation or at most, only a minor temporary aggravation. It was Dr Dickinson’s evidence that any worsening pain after the accident was due to the plaintiff’s progressive degenerative condition. Dr Dickinson’s evidence is consistent with the conclusion I have ultimately formed on this issue.

Conclusion: The nature and extent (if any) of the plaintiff’s physical injuries suffered

121. [121]
     I am satisfied that on 23 April 2018 the plaintiff told Ms Paxton words to the effect that his shoulder was in status quo, his neck and lower back were sore, but he felt back to his pre-accident status. ^[148]
122. [122]
     I consider that the orthopaedic reports of Dr Bell and Dr Zeller, relied upon by the plaintiff, are primarily based on the plaintiff’s unreliable self-reporting. The underlying facts relied upon by the plaintiff’s orthopaedic experts, in reaching the view that the plaintiff suffered a permanent aggravation, have not been made out. 
123. [123]
     I consider the evidence of Drs Bell, Zeller and Dickinson to be equally consistent with the plaintiff exaggerating the impact of the subject accident on his condition during his assessments by each of them, and/or the plaintiff’s pain and injury resolving to pre-accident status by 24 April 2018. Any increase in symptoms after 24 April 2018 is likely due to the plaintiff reaggravating his pre-existing condition, or further degeneration of his pre-existing injury after that date, but before he was assessed by each doctor.
124. [124]
     I consider the same reasoning applies to the plaintiff’s self-reporting to Dr Parr on 27 July 2018 that his pain had increased since the motor vehicle accident. The defendant does not address this entry in his outline of submissions in reply. I accept the plaintiff must have reported to Dr Parr that he had increased pain since the accident in 2017. However, when attempting to reconcile this with Ms Paxton’s notes, I am not satisfied to the requisite standard that the plaintiff was reliably reporting that the pain he was suffering, when he saw Dr Parr, was caused by or attributable to the accident, rather than some other intervening event, or was simply further degeneration caused by his pre-existing injury.
125. [125]
     I am mindful that, the plaintiff having proved there was some temporary injury arising from the subject accident, the onus then shifts to the defendants to prove with some reasonable measure of precision what the pre-existing conditions, and their future effects, both as to their nature and their future development and progress, were likely to be.^[149] Ultimately, on balance, I am satisfied on the above analysis, the defendants have satisfied that onus. I am satisfied that any physical injury the plaintiff suffered after 24 April 2018 was unrelated to the accident. Rather, any pain or injury after that date was more likely due to an exacerbation caused by an unrelated incident and/or by further deterioration of his significant pre-accident degenerative condition.

Psychiatric Condition – pre-accident

The plaintiff’s evidence

126. [126]
     The plaintiff gave scant evidence about his psychiatric state prior to and following the accident as can be seen from the following summary.
127. [127]
     The plaintiff took Lexapro for depression from at least 2012 up to, and after the accident in August 2017.  He recalled feeling depressed in 2013 to 2014 due to general factors such as difficulty finding work and his physical ailments, although mainly due to his hip.^[150]
128. [128]
     The plaintiff’s mood was occasionally affected by his hip pain prior to the motor vehicle accident.^[151]
129. [129]
     The plaintiff agreed that in November 2016 (before the accident) he spoke to his general practitioner at LKGP, Dr Winten, about being unhappy at work, and his Lexapro (anti-depressant medication) dose was increased for a short time to 30 milligrams.^[152] At a later stage in his evidence, the plaintiff said his dosage of Lexapro increased after the accident (consistent with the plaintiff’s claim of increased depression). Under cross-examination when confronted with the LKGP notes to the contrary, he conceded the Lexapro dosage “possibly” was not increased after the accident. He then gave nonresponsive and unsatisfactory answers when cross-examined about why he had earlier said his dosage had increased.^[153] He said that his medication went up and down like a yo-yo.^[154] 
130. [130]
     The plaintiff’s evidence is inconsistent with the LKGP records which show the only increase in his Lexapro medication was before the accident. I consider the plaintiff, during his evidence, was attempting to downplay his depressive symptoms prior to the accident.

The documentary medical evidence

131. [131]
     The plaintiff was first prescribed Lexapro for depression in December 2013 by Dr Winten because the plaintiff was “still depressed and anxious with transient accommodation issues and chronic pain”.^[155] In LKGP records dated 30 December 2013, the plaintiff’s team care plan identifies the mental health goal as “optimise mood and coping skills – prevent relapse through ongoing support and review”.^[156]
132. [132]
     Between 20 May 2014 and 11 August 2017, the plaintiff attended Dr Winten or other general practitioners at LKGP on approximately 16 occasions. Doctors continued to prescribe Lexapro. The LKGP records show the only increase in his Lexapro medication was before the accident.^[157]
133. [133]
     On 22 November 2016, the plaintiff saw Dr Winten and reported he was unhappy at the call centre and had not been playing cricket in the last few months. Dr Winten increased his Lexapro to 30 milligrams until happier at work. On 8 and 9 May 2017, three months before the accident, the plaintiff again complained about work, issues with stress and depression in the past, wanted a medical certificate for stress leave while Lexapro “kicked in;” and that his hip was bad. ^[158]
134. [134]
     During a consultation with Dr Winten on 9 May 2017, the plaintiff said that he went off Lexapro “cold turkey” after running out of scripts.^[159] The plaintiff also disclosed that he had been reported to his boss by other staff for being rude to customers and was taking stress leave for 7 days and seeing a counsellor. The plaintiff asked Dr Winten for a medical certificate and medication to deal with stress. The plaintiff described “severe L hip OA [osteoarthritis] hurting day and night”. ^[160]
135. [135]
     During a consultation with Dr Winten on 15 May 2017, the plaintiff said his mood was better, he was back on Lexapro and had returned to work.
136. [136]
     In about July 2017 the plaintiff saw Dr Gleeson in relation to sleeping problems. She noted he suffered depression and anxiety.
137. [137]
     On 20 July 2017 he told Dr Gleeson that he had significant issues with memory and concentration problems, and irritability which he felt was impacting on his work ability.^[161] On 20 July 2017, Dr Gleeson recorded in a letter to Dr Winten the plaintiff’s medical history. Dr Gleeson noted the plaintiff’s medical conditions, including depression/anxiety. ^[162]

Psychiatric Condition – post accident

The plaintiff’s evidence

138. [138]
     As noted above, the plaintiff recalled that his dose of Lexapro was increased from 10 milligrams to 20 milligrams after the accident.^[163] This is inconsistent with the LKGP records which record his medication for Lexapro remaining at 20 milligrams before and after the accident.

The documentary evidence

139. [139]
     Between 9 November 2017 and 6 March 2020, medical practitioners at LKGP continued to prescribe 20 milligrams of Lexapro.
140. [140]
     On 9 February 2018, the plaintiff told Dr Winten that he had been fired from his position at work and was much happier. He reported that he hoped his brother-in-law could employ him part-time for deliveries.^[164]
141. [141]
     On 9 March 2018, the plaintiff attended Mr Connell, physiotherapist, at the Musculoskeletal Physiotherapy Screening Clinic for ongoing issues related to left hip pain. Screening questionnaires revealed moderate levels of depression and stress. Mr Connell recorded a history from the plaintiff, which included reference to problems with anxiety and depression.
142. [142]
     On 11 July 2018 the plaintiff told Dr Winten that he “feels rock bottom at the present”. The LKGP records indicate that during examination the plaintiff presented as irritable, flat and depressed.^[165]
143. [143]
     On 6 March 2020 the plaintiff attended Dr Winten. The LKGP records state that during examination the plaintiff was flat and “seems defeatist attitude at present-negative”.^[166]

Current Mood and Treatment

144. [144]
     The plaintiff described his mood as “up and down”. The plaintiff said he had recently received psychological counselling. He continues to take 20 milligrams of Lexapro daily to improve his mood.^[167] He described the Lexapro as helping mellow him and if he did not take it, he became frustrated and found caring for his father difficult.  He recalled continuously taking Lexapro since the first bicycle accident. However, the plaintiff recalled that he had originally been on 10 milligrams prior to the subject accident after which it was increased to 20 milligrams.^[168]
145. [145]
     The plaintiff estimated he takes Lexapro, Panadol Osteo, and other medication every day. In addition to Lexapro, the plaintiff currently takes cannabis oil, magnesium, vitamin B, and Panamax.  He no longer takes Lyrica due to the side effects.^[169]  He started using cannabis oil approximately 12 months ago.  He admitted to smoking cannabis on and off for years since he was aged 16.  However, after the accident he took cannabis to assist with the pain he was suffering.  The cannabis oil was not prescribed.^[170]

Cannabis use

146. [146]
     The plaintiff claimed he currently uses cannabis oil to treat his pain. The plaintiff stated he got his cannabis oil on the black market because his doctor would not prescribe it.^[171] He explained in evidence that he used cannabis after the accident because he was advised the cannabis would help with his pain.^[172]
147. [147]
     The plaintiff initially denied smoking cannabis before the accident during the time he worked for Stellar. The plaintiff agreed he told Dr Milad on 24 September 2019 that he used to smoke cannabis but had not done so for two years. The plaintiff explained in evidence he had only had a couple of joints during that time. He then conceded that, when he told Dr Milad he had stopped smoking cannabis, that might have been untrue.^[173] He agreed that he provided urine samples to Dr Milad which revealed he had recently used cannabis.^[174]
148. [148]
     The plaintiff told Dr Gleeson in July 2017, one month prior to the motor vehicle accident that he consumed six to seven marijuana pipes a day.^[175] In evidence, the plaintiff conceded he probably had a couple of pipes a day but that was all.  He denied his previous evidence was untrue. He then denied he was using six to seven cones a day and said he used on most weekends but only socially.^[176] The plaintiff then changed his evidence again, and maintained he did not use cannabis between when he started at Stellar in 2014 and the date of the accident.^[177] The plaintiff continued to deny he used cannabis whilst working at Stellar before the accident, but then conceded he might have had some cannabis with his cricket colleagues.^[178]
149. [149]
     In 2020, the plaintiff underwent counselling for depression and “being argumentative.” He acknowledged substance abuse issues with cannabis and tobacco. After completing several sessions, he reported smoking less cannabis.^[179]

The expert psychiatric evidence

Dr Muhammad Milad, Psychiatrist

150. [150]
     Dr Muhammad Milad, Psychiatrist assessed the plaintiff on 24 September 2019. His report is dated 5 November 2019.^[180] Whilst it is true to observe the plaintiff did inform Dr Milad of his previous cervical spine injury and his right hip replacement, in August 2018, there was a significant emphasis on the subject accident significantly aggravating both his physical and psychological symptoms. This is perhaps represented in Dr Milad’s summary which states, inter alia:

“Mr Eustace managed to perform his work and maintain full employment for three and a half years prior to his injury in the motor vehicle accident in August 2017. As a result of the accident, he suffered a whiplash injury and an exacerbation and aggravation of his previous neck injury… he underwent another operation on his neck as a result of a fusion of C6/7… (He) has a previous history of either major depression, anxiety or adjustment disorder as a result of his previous health issues. The history indicated that he was managing his symptoms and managed to work for a number of years ever since his diagnosis and treatment with antidepressants. Since the motor vehicle accident, he has been unable to work and there is a marked decline in his level of functioning.  He has developed symptoms of stress such as irritability, anger, loss of tolerance, frustration.”^[181]

151. [151]
     I have already referred to the inaccurate history given by the plaintiff to Dr Milad in relation to his use of cannabis.  It is also clear that other aspects of the history provided to Dr Milad were inaccurate.  For example:

“… (he) used to play cricket with no issues.  He used to enjoy fishing.  He used to socialise with friends and to drive places. He now does not have any hobbies or interests at all… (he) used to be able to work up to nine hours per day on a computer that involved focus, concentration and being able to manipulate and be flexible with activities … he struggled to do that on his return to work.  He struggled to focus and was unable to do that appropriately which led to loss of his employment. …”^[182]

152. [152]
     Dr Milad assessed the plaintiff with a major depression with anxious mood and assessed him with a 17 per cent whole person impairment, assessed according to the Psychiatric Impairment Rating Scale (PIRS). Whilst noting the plaintiff had previously been diagnosed with an adjustment disorder with anxiety and depressive symptoms, he did not reduce his impairment for any pre-existing condition.
153. [153]
     In cross-examination, Dr Milad agreed that if the plaintiff suffered a very minor short-lived injury in the motor vehicle accident, “then we have to look around somewhere else if there is going to be any significant increase in his psychiatric symptoms.” He explained that “these things tend to be multifactorial and they exacerbate and they aggravate. So they go up and down.”^[183] Later Dr Milad agreed that if the plaintiff was smoking six or seven cannabis pipes a day, there would be a probability that it would create significant depressive symptoms in the plaintiff.^[184]
154. [154]
     Dr Milad was unwilling to make a deduction on his permanent impairment for a pre-existing psychiatric condition without having a clear psychiatric condition diagnosed pre-accident. What is clear from Dr Milad’s evidence is that he was still, notwithstanding being referred in cross-examination to inaccurate aspects of the history he was given, relying heavily on the history the plaintiff related to him. This is best explained in this answer he gave in cross-examination:

“… that history then would be my assessment of his mental state leading to that moment.  I took account of how he has tried to return to work and hasn’t succeeded.  So that picture he described in building up to the assessment, and a few weeks normally, I have to talk to a few – give people even the questionnaires to send it to me.  Before the accident, I look to find out picture that he was, so if he is doing nine hours work, if he’s going playing cricket, he's – you know, cricket with somebody who’s got bad neck. …  I cannot say that he was very impaired or disabled at the time.  I would say he was maybe symptomatic to some extent, controlled by anti-depressant when he tried to come off it, he didn’t do very well.  Went back on it, realised that he needs it.  It did affect – I think, it did affect his relationship with his employer at the time he came off the antidepressant, because …”^[185]

Dr Frank Varghese, Psychiatrist

155. [155]
     Dr Varghese assessed the plaintiff via video conferencing on one occasion.  His report is dated 24 April 2020.^[186]  He acknowledged in his report that video conferencing is a sub-optimal way of assessing someone for a psychiatric assessment as compared to a face-to-face assessment.^[187]

156. [156]
     The plaintiff told Dr Varghese that the subject motor vehicle accident: “… has wrecked my life. He is concerned about the limitations on his life and what he can do. Previously he used to enjoy cricket now he cannot bowl. I cannot even throw. He has given up playing cricket. He describes inability to do other things, such as work on cars. If he does this, he needs a rest.”^[188]
157. [157]
     Dr Varghese diagnosed the plaintiff with a dysthymic disorder. He also considered it could be understood as an adjustment disorder with the adjustment being to his significant physical disability and pain.  Dr Varghese considered that on a review of the plaintiff’s medical history, he had a significant past history of mood disorder which would constitute chronic dysthymia but with occasional dips into major depression. He considered the pre-existing orthopaedic issues may well have been important with respect to the genesis of his mood disorder. Dr Varghese considered that if the plaintiff had major depression prior to his assessment, he was in remission at the time of his assessment. Dr Varghese assessed the plaintiff with a 4 per cent whole person impairment, assessed according to PIRS criteria.

158. [158]
     In a later diary note dated 4 May 2021,^[189] Dr Varghese considered that the extent to which any current psychological impairment can be attributed to the motor vehicle accident depends on the extent of physical injuries suffered. He stated that the question of a psychiatric effect on the plaintiff of the motor vehicle accident does depend upon the severity of any physical effect upon him.  If there was little physical effect, then his ongoing symptoms were consistent with his pre-accident dysthymic disorder. In cross-examination, Dr Varghese agreed that if the plaintiff had indeed suffered significant physical injury of a long-term nature in the motor vehicle accident, a diagnosis of adjustment disorder is justifiable in addition to dysthymia.

Conclusions regarding psychiatric evidence

159. [159]
     Having regard to the evidence which I have discussed herein, coupled with my finding that the plaintiff’s physical injuries were exacerbated by the accident for a period ending on or about 23 April 2018, I make a concomitant finding that the plaintiff’s psychiatric condition was not materially impacted by the accident. The history given and relied on by Dr Milad was plainly inaccurate. The plaintiff’s reliance on Lexapro was no different after the accident as it was before. The plaintiff’s chronic hip condition was clearly causing an interference with his lifestyle and was having an impact on his mood. This prevailed after the accident. The plaintiff was already having significant difficulties with his employer prior to the subject accident.
160. [160]
     I prefer the evidence of Dr Varghese over that of Dr Milad. I found Dr Milad’s unwillingness to depart from the history he was provided by the plaintiff at assessment for the purposes of the discussion to be unhelpful.  Dr Varghese on the other hand had considered all relevant medical records in forming his view.
161. [161]
     Whilst Dr Varghese concedes the plaintiff may have dipped into a major depression at the time he saw Dr Milad, it cannot be overlooked that at the time the plaintiff saw Dr Milad, he had had unsuccessful surgery on his neck, which by that time, he had convinced himself was related to the motor vehicle accident. By the time he was assessed by Dr Varghese, the plaintiff had improved to his regular pre-accident state of a dysthymic disorder.

162. [162]
     In any event, because of my finding with respect to the temporary aggravation of the plaintiff’s physical symptoms caused by the accident, I am also of the view that the subject accident had a very limited impact on the plaintiff’s psychiatric state.  Consistent with this finding is the prescription of the anti-depressant Lexapro at the same level post-accident as it was for many years pre-accident. The plaintiff’s lack of any significant psychiatric/psychological treatment post-accident. If there was an increase in the plaintiff’s psychiatric symptoms following the accident it was temporary and minor.

Employment

163. [163]
     As summarized above, the plaintiff had a very sporadic work history prior to commencing employment with Stellar Asia Pacific. Until then, he worked for short periods in unskilled roles interspersed with numerous periods of unemployment.
164. [164]
     The plaintiff worked at Stellar from mid-2014. The plaintiff agreed that on 22 November 2016 he possibly told Dr Winten he was unhappy at work, not appreciated, and felt his quality of work was questioned.^[190] The plaintiff denied telling Dr Winten on that date that he was looking for different work as a courier because he felt the quality of his work at Stellar was being questioned.^[191] Medical records show that on 22 November 2016, he reported he was unhappy at work, his work quality was being questioned and not appreciated, he was looking for courier work, and he had not been playing cricket in last few months. ^[192]
165. [165]
     The plaintiff accepted it was possible that, at that time, his Lexapro dose was increased to 30 milligrams for a period before it was reduced back to 20 milligrams.^[193]
166. [166]
     He agreed that on 9 May 2017 he possibly told Dr Winten he had been reported at work by other staff for being rude to a foreign customer. He agreed he had seven days stress leave off work at the time, and his Lexapro dose was increased to 30 milligrams.^[194]
167. [167]
     He agreed that on 17 February 2017 he was issued with a final written warning and performance plan. On 5 May 2017, he attended a grievance meeting for poor performance and rudeness to phone customers, and he was suspended with pay.
168. [168]
     On 25 January 2018, 4 months after the accident, the plaintiff attended a meeting with his supervisors. Later that day his employment was terminated. He recalled the dominant reason given by his employer was he had not achieved the correct outcome with a customer although he was unclear in his evidence of the exact reason.^[195]

169. [169]
     The plaintiff agreed he attended several counselling sessions and disciplinary hearings at Stellar for issues including displaying aggressive and rude behaviour, swearing, throwing a headset, failing to meet performance indicators, and failing to follow certain protocols. When defence counsel asked the plaintiff to comment on some entries in the records of complaints and disciplinary hearings the plaintiff conceded several of the reported incidents had occurred.  The plaintiff agreed that in the notes of the termination of his employment on 25 January 2018 there were “probably” no notations in relation to him raising the issue that he had problems with pain, or lack of concentration or anything of that nature.^[196]
170. [170]
     In re-examination, the plaintiff recalled talking about his depression with staff during the termination meeting.^[197]  He said he probably was talking about his hip, back and neck.^[198]

Employment and Medical Records

171. [171]
     Employment records and medical records show that the plaintiff was required to undergo counselling sessions at Stellar on 17 April, 4 June, 28 August, 10 November, and 4 December 2015; on 28 August 2016; and on 5 May 2017. On 10 and 11 August 2017, he attended grievance meetings for offending other staff. On 9 November 2017 the plaintiff told Dr Winten that he swore at a staff member during the week and was having a disciplinary meeting at work.^[199] It is significant that all but the last event occurred before the subject accident.
172. [172]
     The plaintiff attended Disciplinary Hearings on 17 July 2015, 30 August 2016, 28 October 2016, and 7 December 2016. He received written warnings that his employment could be terminated. On 17 February 2017, 5 May 2017, 16 December 2017, and 25 January 2018 he was given final written warnings. On 29 January 2018 his employment was terminated.^[200]
173. [173]
     The plaintiff took no action in relation to unfair dismissal. The termination letter stated the reasons for termination were for misconduct:

1. (a)
   you did not follow previous directions provided to you from all corrective actions taken to correct your conduct being the subject of this discipline hearing; and
2. (b)
   you breached the taxpayers charter, the ATO code of conduct and the ATO Values of Committed to Service, which may potentially place the business into disrepute with the Client.

174. [174]
     The disciplinary meeting notes reveal that the plaintiff did raise during the meeting the matter of “illness”.  The following was also noted:

“RE [the plaintiff] has improved on his health, and he has referred this to his team leader.”

Matthew Rackemann

175. [175]
     Matthew Rackemann worked at Stellar part of the time when the plaintiff worked there.  Mr Rackemann started work in 2014 and recalled the plaintiff started about six weeks after him. He commenced work with general taxation queries, helping customers that went into the debt area and handled GST debts that people and companies had accumulated.  He worked for the company for approximately two and a half to three years. He left there in 2017. He described the plaintiff as genuine, down to earth, kind, loyal and a good mate. He worked regularly with the plaintiff apart from the last 12 months before Mr Rackemann resigned. For those 12 months he worked in the debt area and the plaintiff would have been in his team only a month or two. In the last nine months they did not work a lot together.
176. [176]
     Mr Rackemann recalled that the plaintiff stood “quite a lot at his desk and not sitting” after the accident.^[201]  He recalled it was approximately two to three months later that the company gave the plaintiff either a standing desk or chair that was high, so he did not have to be in the normal sitting position.^[202] He recalled the plaintiff telling him about the car accident. Mr Rackemann recalled it was after this that he noticed the plaintiff standing up more often at his desk and that not too long after he noticed the plaintiff had a higher/standing desk. Mr Rackemann observed the plaintiff to be “quite down and out … several months before I left, yeah I noticed he was struggling with things”.^[203]
177. [177]
     Under cross-examination, Mr Rackemann denied it was after he ceased employment with Stellar that the plaintiff told him about the accident.  When it was put to him, he ceased employment with Stellar on 10 May 2017, he agreed it was possible. When Mr Rackemann was informed by defence counsel that the accident had occurred in August 2017, he conceded (as he had to) that his evidence must have related to observations he made of the plaintiff before the accident.  He then conceded the plaintiff could have told him about the accident after he had left Stellar.
178. [178]
     If anything, I find the evidence of Mr Rackemann fortifies the view I have taken with respect to the state of the plaintiff’s pre-accident health.

Rachel Stock

179. [179]
     Ms Stock was employed in the HR Department at Stellar in an advisory role. She worked for the company for over ten years.  Ms Stock provided a document obtained from the payroll department confirming Matthew Rackemann ceased working at Stellar on 10 May 2017, three months before the accident.^[204]
180. [180]
     Ms Stock confirmed she recalled the plaintiff having a car accident on 15 August 2017 while travelling to work.  Ms Stock confirmed attending a meeting with the plaintiff, Mr Kuz and operations manager Mr McPherson on 25 January 2018. ^[205]  Ms Stock confirmed the meeting finished at 1:15pm, and at 1:50pm the plaintiff was told his employment would be terminated.  He was given a letter dated 29 January 2018 formally advising him that his employment had been terminated.^[206] With reference to the notes, Ms Stock accepted that the plaintiff may have made reference to stress and change during the meeting and brought up the topic of his health, although she could not recall the plaintiff making any specific reference to injuries which he sustained in the motor accident of 15 August 2017.^[207]  She recalled he mentioned experiencing some health concerns.^[208]

Employment after Stellar

181. [181]
     The plaintiff gave evidence that the only work he undertook after the accident was intermittent work with his brother-in-law in 2019 for his brother’s business which was called Project Materials. He worked delivering metal mesh products for approximately three months.^[209] After that, he did not work. Prior to the accident the plaintiff intended to continue working at Stellar and to do part time artwork producing t-shirts. 
182. [182]
     The plaintiff agreed he told Dr Winten on 19 February 2018, (less than one month after his employment was terminated) he was much happier now that he had left his job with Stellar. He agreed that when he worked with his brother-in-law, he did a delivery job delivering flat pack mailboxes, 10 to 15 kilograms in weight.^[210] The plaintiff estimated he worked for his brother-in-law for a couple of months and earned approximately $20.00 an hour, and approximately $200.00 a week. 
183. [183]
     The plaintiff had not disclosed any documentation prior to trial of employment with his brother-in-law. When directed by the court during the trial to produce all employment payslips, he only produced one pay slip for work performed for his brother-in-law in 2018-2019.^[211] Under cross-examination, the plaintiff agreed he did not disclose to the Tax Office any earnings for the different occasions he worked for his brother-in-law.^[212] The one payslip from the 2018/2019 financial year disclosed during the trial was tendered as Exhibit 9.
184. [184]
     In November 2021 the plaintiff returned to Albury to live and care for his father. He is currently in receipt of a carer’s pension from Centrelink in relation to his father and a disability pension since approximately late 2022. The plaintiff has not recently looked for work apart from being on call for mystery shopping. 
185. [185]
     When asked about his efforts to obtain work in the future, the plaintiff acknowledged he was not looking for work at present because he was caring for his father who is aged 77. He maintained his intention was to get some sort of work but could not whilst he cared for his father and further, he could not find any work.^[213]

Conclusion – Work Termination

186. [186]
     It may be that since the accident, the plaintiff’s sore neck, dead arm, paraesthesia, headaches, and symptoms of depression adversely affected his temperament, coping abilities and ability to reach performance indicators. However, the employment records, including counselling sessions and disciplinary hearings, show he had exactly the same problems complying with his conditions of employment prior to the accident.
187. [187]
     I am satisfied the major reason his employment was terminated was because of the matters listed in the termination letter rather than because of any pain, physical or psychiatric injuries arising from the accident.  I am not satisfied on balance that there is any causal connection between the termination and the aggravation of the plaintiff’s pre-existing neck and back problems.

Findings of Fact Summary

188. [188]
     The plaintiff suffered significant pre-existing neck pain, right shoulder pain and lower back pain prior to the accident on 15 August 2017.
189. [189]
     The accident caused the plaintiff to sustain an aggravation of his pre-existing neck and back problems.
190. [190]
     The aggravation was temporary, and the condition had resolved to its pre-accident state by no later than 23 April 2018.
191. [191]
     Any neck, back or other pain suffered after 23 April 2018 was caused by the plaintiff’s pre-existing condition and/or by other factors unrelated to the accident.
192. [192]
     The cervical spine surgery performed in 2019 by Dr Zeller was unrelated to the accident.
193. [193]
     There was no discernible increase in the plaintiff’s psychiatric symptoms in the period between the accident and 23 April 2018.
194. [194]
     The plaintiff’s termination from his employment at Stellar was not related to the accident.

Assessment of damages

195. [195]
     The plaintiff’s claim falls to be assessed under the Civil Liability Act 2003 (CLA) and the Civil Liability Regulation 2014 (CLR).
196. [196]
     McMeekin J in Allwood v Wilson & Anor^[214] discussed the approach to be taken when assessing general damages under the CLA.  In particular in that case, he discussed the approach to be taken where there are multiple injuries alleged. The relevant parts of that judgment are reproduced below:

197. [197]
     The following Item numbers of Schedule 4 are relevant to consider:

198. [198]
     Because of the psychiatric component, it is also appropriate to consider Item 13:

199. [199]
     Having regard to the findings I have made, it is plain that I could only consider the plaintiff’s injury within Item 89 and have regard to Item 13. I agree with the defendants’ submission that the assessment comfortably falls within Item 89 as being a cervical spine injury from which the plaintiff recovered within a matter of months and certainly less than the 18 months referred to in the Item. Ultimately, the defendants concede an ISV of 4 would be appropriate in the circumstances. This is an appropriate concession, particularly having regard to the prospect of some minor exacerbation of the plaintiff’s psychiatric condition during that period. I therefore assess general damages in the amount of $5,920.00.^[216]

Past economic loss

200. [200]
     Consistent with the finding I have made, the plaintiff’s primary case, namely that the subject accident caused the plaintiff’s loss of employment from Stellar has not been proven on the balance of probabilities.  There is, however, some scope for the plaintiff to have suffered a loss by reason of his working less hours during the period from the date of the accident until his termination on 25 January 2018. There is evidence to suggest that this was the case. He initially had three days off work.  He then returned to work on reduced hours of three hours a day, five days a week before increasing this to six hours a day. My difficulty is discerning what, if any, was the plaintiff’s loss during this period. The schedule of the plaintiff’s pre- and post-accident earnings shows that in the 2017 financial year, the plaintiff earned almost $670.00 net per week in his employment at Stellar.^[217] I calculate 23.5 weeks between the date of the accident and the plaintiff’s termination on 25 January 2018.
201. [201]
     I have been referred by the defendants to Nichols v Curtis & Anor^[218] where the court cited with approval what was said by Thomas J in McDonald v FAI General Insurance Co Ltd:

“In a case where damage is capable of precise proof, and the plaintiff fails to produce such proof, no assessment (or a nil assessment) will be made.  In cases where some loss has apparently been suffered that the plaintiff has failed to take the trouble to produce evidence that would reasonably be expected to be available, no more than a very conservative estimate of damages will be made.  This may be contrasted with a familiar exercise of assessing damages upon issues which of their very nature are incapable of precise proof, such as future economic loss, and, quite frequently, past economic loss, where the courts do the best they can on necessarily imprecise matter.  Even in cases of that kind, a plaintiff is expected to place before the court the essential facts upon which the necessary inferences and projections are to be made.  There is no difference in the approach of the courts according to whether the case is based on contract or tort.  In all cases the extent of proof required depends upon the nature of the issue to be proved.”^[219]

202. [202]
     This is such a case where damage was probably capable of precise proof. However, I am loathe to be overly critical of the plaintiff as his primary case was predicated on the platform that the reason for his loss of employment (at Stellar) was because of the subject accident. I have failed to make that finding. The defendants, in their written submission, concede that a small allowance should be made for economic loss during the period the plaintiff worked reduced hours.  I accept that concession as a reasonable one. If one made the assumption that overall, the plaintiff worked one-third less of his usual hours in the 23.5 week period, the loss could be calculated as follows - $670.00 x 33.33% x 23.5 weeks = $5,247.80.  Doing the best I can, I estimate based on the available evidence and for that reason I will round it up to $5,500.00 to account for any superannuation loss during that period.
203. [203]
     In terms of interest on past economic loss, pursuant to s 60(3) of the Civil Liability Act 2003, the appropriate rate is the rate for 10-year treasury bonds published by the Reserve Bank of Australia as at the beginning of the quarter in which the award of interest is made.  I note this to be 3.32 per cent.  I calculate interest on $5,500.00 from the end of the loss (25 January 2018) to date (282 weeks)^[220] in the amount of $990.25.

Future economic loss

204. [204]
     The defendants submit that there is no basis for making an award of future economic loss.  In the circumstances, I accept that submission. Given the findings of fact I have made in respect of the temporary exacerbation of the plaintiff’s pre-existing injuries, there is no basis of an award for economic loss. Any ongoing impairment of the plaintiff’s earning capacity, by reason of his spinal condition, and concomitant adjustment disorder, is caused by his long-standing pre-existing condition(s).

Gratuitous care

205. [205]
     The plaintiff, through his counsel, has abandoned his claim for gratuitous care damages.^[221]

Past special damages

206. [206]
     I accept the defendants’ submission that the only amounts in the Medicare schedule which pre-date 23 April 2018 and which are solely attributable to the subject accident, are three attendances upon Dr Challen on 25 October 2017 totalling $556.65. There is simply no evidence of any other expenditure.

Future expenses

207. [207]
     Based on my finding that the plaintiff suffered a temporary aggravation of his pre-accident condition which has long since passed, I find that there is no basis to make an award for future treatment or medication expenses referable to the subject accident.

Orders

208. [208]
     I therefore give judgment for the plaintiff in the amount of $12,966.90.
209. [209]
     I will hear the parties as to costs and/or other orders.