Checchia v Insurance Australia Ltd t/as NRMA Insurance - [2013] NSWSC 674 - NSWSC 2013 case summary — Zoe

NSWNSWSC

Checchia v Insurance Australia Ltd t/as NRMA Insurance

[2013] NSWSC 674

Supreme Court of NSW|2013-05-30|Before: Hall J

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Source facts

Court

Supreme Court of NSW

Decision date

2013-05-30

Before

Hall J

Catchwords

MOTOR ACCIDENT COMPENSATION - Motor Accidents Compensation Act 1998, s 118 - false and misleading conduct for purpose of obtaining a financial benefit

Source

Original judgment source is linked above.

Catchwords

MOTOR ACCIDENT COMPENSATION - Motor Accidents Compensation Act 1998, s 118 - false and misleading conduct for purpose of obtaining a financial benefit

Judgment (66 paragraphs)

[1]

PART A - INTRODUCTION 1HALL J: The plaintiff originally commenced proceedings in this Court by Statement of Claim filed on 24 October 2007 in which he claimed damages from the defendant insurer, NRMA Insurance, being the compulsory third party insurer of a motor vehicle in which the plaintiff claims that he suffered injuries on 21 January 2003. 2A settlement of those proceedings was agreed upon by the plaintiff and the defendant insurer in the amount of $1,225.000 inclusive of costs. The agreement was entered into on 20 October 2006. The defendant subsequently refused to pay the amount under the agreement, relying upon the provisions of s 118 of the Motor Accidents Compensation Act 1999 (MAC Act). In its Amended Defence, filed on 11 September 2008, the defendant insurer pleaded that the plaintiff had failed to provide a true and correct medical history prior to the accident of 21 January 2003, and further had not given a true and correct history of his pre-injury earnings. 3As to the first matter (the plaintiff did not disclose the fact that he had suffered a back injury in 1993), the defendant has contended that this was a deliberate and material non-disclosure. 4As to the second matter, the defendant insurer alleged that for the purpose of settlement negotiations the plaintiff dishonestly misrepresented his earnings for the 2002 financial year. In particular, the allegation is that he did so by producing documents for the purposes of his claim, and in particular for the Settlement Conference on 20 October 2006 the authenticity of which is strongly disputed. 5The defendant additionally claimed that in a statement to the Claims Assessment and Resolution Service (CARS) pursuant to the MAC Act the plaintiff dishonestly represented that, at the time of the accident, he was earning $1,000 per week. 6The proceedings were the subject of a hearing before this Court in 2008 ("the first hearing"). As noted in the written submissions for the defendant, the issues to be determined at the first trial included: (a)Whether the Plaintiff had engaged in false or misleading conduct; (b)If so, whether the Plaintiff engaged in that false or misleading conduct "for the purpose of obtaining a financial benefit" [ss 118(1)]; (c)Whether the Plaintiff did in fact obtain a "financial benefit" as a result of his false or misleading conduct; (d)If so, the extent of that financial benefit, being the measure of the defence to which the defendant was entitled [s 118(2)(a)]. Outline of Defendant's Submissions at [27]. 7In the judgment given in the first hearing, the trial judge found that the respondent had failed to disclose the fact of a 1993 back injury and had at times exaggerated the extent of his ongoing symptoms. 8His Honour, however, determined that the plaintiff had not made the representation that he had not had a previous back injury for the purpose of obtaining a "financial benefit" within the meaning of s 118. His Honour also rejected the defendant's contention that the plaintiff had falsified his pre-injury earnings. 9In consequence of those findings, the trial judge determined that the defendant was not entitled to relief from liability for any part of the settlement and made an order in favour of the plaintiff in the settlement amount together with interest and costs: Checchia v Insurance Australia t/as NRMA Insurance [2009] NSWSC 1005. 10The defendant insurer subsequently appealed the orders made by the trial judge (referred to in this judgment as "the appeal proceedings"). The Court of Appeal (Beazley, and McColl JJA and Handley AJA) concluded, inter alia, that the trial judge had erred both in his construction and application of the provisions of s 118 of the MAC Act and in his factual findings. In the latter respect the Court of Appeal determined that some of those findings were unsupported by and contrary to the evidence, and that there had been a failure to make findings of fact that ought to have been made on the evidence. 11In the leading judgment, Beazley JA (as her Honour then was) considered the provisions of s 118 and the proper construction to be applied to them ("the construction issue") at [34]-[41]. I will return to her Honour's judgment below. 12The first trial was a lengthy one and the appeal books are voluminous. There are three "black" appeal books (transcript) and four blue appeal books (Exhibits). They were all tendered as evidence in the present trial. The four blue appeal books were respectively marked as exhibits in the present proceedings, becoming Exhibits 1A, 1B, 1C and 1D. 13The black appeal books were also tendered and were admitted in the present proceedings as Exhibits 2A, 2B and 2C. 14The re-trial of the proceedings proceeded on 30 July 2012, 7, 8, 27 and 28 August 2012. Mr BJ Gross QC with Ms S Dixon of Counsel appeared on behalf of the plaintiff. Mr K Rewell SC with Mr B Kelleher of Counsel appeared on behalf of the defendant.

[3]

THE CONSTRUCTION ISSUE - SECTION 118 16In the determination of the construction issue, Beazley JA in her Honour's judgment in the appeal proceedings, made the following observations: (i) The word "purpose" within s 118(1) means the subjective intention of the claimant [at [34]], (ii) The purpose or intention is to be inferred from the whole of the evidence [34]. (iii) The false and misleading conduct must be engaged in for the purpose of obtaining "a financial benefit". A person may knowingly engage in false or misleading conduct in circumstances where no claim is available. Alternatively, there may be conduct where that person may be entitled to compensation under the MAC Act but engages in false or misleading conduct, such as, for example, by exaggerating the extent of disability, or not disclosing a pre-existing injury, and this is done for the purpose of obtaining greater compensation than that to which he or she is entitled. Whatever be the content of the false and misleading conduct, it must be for the purpose of obtaining a financial benefit under the MAC Act: at [37]. (iv) Although an insurer may have established the factual matters necessary to satisfy s 118(1) it will not be known whether an insurer will be relieved of liability under s 118(2)(a) (in respect of a payment, settlement, compromise or judgment): "... until it is known whether the financial benefit in fact obtained by the claimant was one to which he or she was not entitled. That requires a determination of the financial benefit to which the claimant was entitled on the premise that no misleading statement was made. The quantitative difference between the two, if any, is the extent to which the insurer is relieved from liability pursuant to s 118(2)(a)": at [38] (v) Section 118(1) specifies the circumstances in which the section is engaged. Section 118(2) specifies the consequences which may flow where the section is engaged: at [39]. (vi) Section 118(2)(a) is directed to the quantification of the amount of the liability which an insurer is relieved from paying where subsection (1) has been engaged. (vii) Where a settlement is involved, s 118(2) expressly provides that the insurer is relieved from the legal liability to pay under the settlement "to the extent of the financial benefit obtained by the settlement". Beazley JA stated that the Court is required to determine, not what the person guilty of the false and misleading conduct would have obtained in a judgment, but the financial benefit obtained in the settlement, as a result of the false and misleading conduct: at [46].

[4]

PART C - ASSESSING CREDIBILITY 17In the present case, the assessment of the plaintiff's credibility, in particular his honesty and reliability, arises in somewhat unusual circumstances. In relation to certain matters analysed below, the evidence establishes a lack of honesty in him. In particular, in that regard, adverse findings are made in this judgment against him concerning false and misleading documents created and supplied in support of his claim. However, other issues (particularly in relation to issues related to causation and disability) there is objective evidence that I have concluded corroborates his evidence. It need hardly be said that, in those circumstances, in undertaking the fact-finding that is essential in the resolution of the issues in dispute, a high degree of caution is called for. 18In a case where there are adverse credit findings against a party in relation to particular facts or issues they may, but will not necessarily, of course, be determinative of that party's honesty and reliability on other facts and issues that arise for determination. 19In Nominal Defendant v McLennan [2012] NSWCA 148, McColl JA at [149] referred to the application by Heydon JA (as his Honour then was) in Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 of the observations of Handley JA in Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117. Heydon JA observed, at [35]: "... [C]ounsel for the defendant contended that the trial judge had not complied with the passage set out above from Handley JA's reasons for judgment in Malco Engineering Pty Ltd v Ferreria (1994) 10 NSWCCR 117 at 118. That contention is not made out. Handley JA did not say that where a party-witness has lied, the balance of the testimony can never be accepted without corroboration. All he said was that the balance of the testimony in that case called for careful assessment. What the trial judge here provided was careful assessment. Counsel for the defendant fell back onto the contention that while the trial judge could have accepted parts of the plaintiff's evidence, he could not do so without "proper reason". He said: "Just because they say something, you can't just accept that when you know they're a liar." But though the trial judge gave no reason for accepting the evidence of the plaintiff about the fact that the shoe Professor Morton tested was the shoe she wore, and about how much she wore it after the accident, he was entitled to accept her evidence on the basis of the overall character of her testimony, part of which was to be disbelieved for particular reasons, part of which was to be believed because it was corroborated, and part of which was, though not corroborated, not affected by any particular reason not to accept it. Finally, counsel for the defendant said that even if the approach for which he was contending was not a universal rule, it was appropriate to employ it in particular cases, and this was one. The difficulty is that it has not been shown that the trial judge failed to assess and analyse the totality of the plaintiff's evidence against the background of the other evidence in such a way as to cast doubt on his conclusions that substantial parts of her evidence could be accepted. It is common enough in litigation for witnesses with a truthful story to succumb to the temptation of gilding the lily or over-egging the pudding. The test for the trier of fact is to separate the truthful parts from the rest. While it may be that other triers of fact would have arrived at conclusions different from those of the trial judge in this case, the fact is that the conclusions that he arrived at were not implausible. The weaknesses of parts of the plaintiff's evidence here, while troubling, were not so great as to call for a rejection of all the uncorroborated parts of it." 20I have read the transcript of the plaintiff's evidence given in the first trial, (Black AB 1, 142-345) and have had the advantage of seeing him in giving evidence in the present trial. An assessment of has credibility is, of course, essential in the determination of all issues, including in particular in relation to the level of his impairment. 21The defendant's contention was, in effect, that, whilst the plaintiff may have a permanent impairment of his lumbar spine, he has exaggerated the level of his symptoms. 22It is in these circumstances that I have determined that nothing other than a detailed examination of all the medical evidence adduced in the first hearing and in the retrial of the proceedings, is essential. This, in particular, is necessary for the purpose of determining whether the medical evidence, (including the evidence of medical practitioners who have been involved in his treatment), provides a sufficient level of corroboration of his subjective symptoms and disability generally. To that end, the recorded histories on examination, the consistency or otherwise of symptoms, and the plaintiff's presentation on clinical and medico-legal examinations, all form part of the assessment required to be undertaken. Similarly, the results of investigative procedures, findings made at surgery and the clinical and other findings and assessments made from time to time by examining doctors are to be brought into account in determining the reliability of the plaintiff's complaints of disability, including the issue of alleged exaggeration. 23Accordingly, the discussion and analysis of the medical evidence is more detailed and protracted than is often required in a damages assessment and has contributed to the production of this lengthy judgment.

[8]

Issue (c) 32In relation to issue (c), reference was made in the plaintiff's written submissions to particular observations made by Beazley JA at [13], [15], [51], [56] and [59]: Written Submissions at [38]-[42] based on the report of Dr Mills, physician in Occupational Medicine, dated 23 August 2005. 33However, the submission in the present proceedings was that issue (c) must, in effect, be revisited and determined on the evidence in the re-trial: at [50]. 34It was submitted for the plaintiff that the reality is that on the totality of the evidence adduced on the re-trial, the defendant could not make out a case of fraudulent exaggeration of disabilities and symptoms or that the disabilities or symptoms are less than what the plaintiff has reported: at [51]. 35Again, reference was made to the concession said to have been appropriately made by Mr Roberts in the course of his evidence and the concessions made on behalf of the defendant: at [52]. These concessions, it was submitted, would require conclusions: (a) that there was no fraudulent, misleading or deceptive statements by the plaintiff so as to exaggerate his disabilities and symptoms; and (b) for the purposes of the assessment and determination under s 118 it must be accepted that the plaintiff in fact has a genuine disability which he has reported over time to various doctors and other health professionals (it was submitted that Dr Mills' evidence should be rejected). It was contended that other medical examiners, in relation to the assessment of the plaintiff's ongoing disabilities, expressed their opinions on the basis of valid conclusions: at [52]. 36It was further contended on behalf of the plaintiff that in the re-trial in cross-examination of the plaintiff on his alleged exaggeration of symptoms a formal "Browne v Dunn" question only was put to the plaintiff and that this issue was not really pursued: at [53]. 37It was further submitted that the plaintiff's credibility is not impaired in any way or is to be discounted in relation to other issues, such as his claim for economic loss, by reasoning of his alleged "exaggeration" of disabilities as contended for by the defendant at the first trial and before the Court of Appeal: at [54].

[9]

Issue (d) 38In relation to issue (d) lengthy and detailed submissions were made at [55] to [73]. I have, of course, carefully considered all of the matters set out in those paragraphs, but do not mean any disrespect to counsel for the plaintiff in not reproducing them in full in this judgment. Each of them will arise in the analysis and discussion later in this judgment of the particular factual matters touching or concerning this particular issue. That said, I will however, refer to certain points raised in the written submissions. 39It was submitted that the plaintiff did not, himself, take any positive steps to contact his former employers, Bar Cupola or Blue's Point Café in order to get further documentation from them as to his pre-injury earnings: at [62]. It was submitted that he provided explanations as to how it came about that the revised group certificates (referred to as the "second batch of group certificates") came into existence: at [62]. I do not here reproduce detail of that submission although I have, as earlier indicated, considered it and taken it into account in determining the issue. See also [63] and [64]. These factual issues are discussed in detail later in this judgment. 40Whilst the plaintiff stated that he could not remember how he obtained the revised PAYG summaries and that he simply located them in a drawer at his home, it was submitted on his behalf that it could not be expected that an "unsophisticated and relatively unorganised such as the Plaintiff" would ordinarily be expected to keep a perfect filing system or to take notes or preserve memory or record as to how and when he received documents: at [65]. 41Reliance was also placed upon the fact that, in the case of the Bar Cupola the second PAYG summary, contains the same figures as the original. This was inconsistent with an intention as to the forging of the document for a fraudulent purpose: at [66]. 42It was further submitted that it was consistent that the same person had produced the revised PAYG summaries for both Bar Cupola and Blue's Point Café and that that person generated the documents to meet a request made to each employer at about the same time. In the circumstances, it was understandable that the plaintiff would need to obtain documents as evidence of his earlier earnings: at [67]. 43It was submitted that the correct conclusion was that the revised PAYG summaries from the two earlier employers were obtained generally on the plaintiff's behalf and sent to him and that they were then put forward by him honestly as to what his earnings were with those employers: at [72]. It was submitted that the defendant was not entitled to any deduction by reference to these documents.

[10]

Issue (e) 44In relation to issue (e), it was submitted that Exhibit G, the Jet Café employment/agreement, was a genuine document: Plaintiff's Written Submissions at [80]. The submissions set out in detail specific matters relied upon in support of the employment agreement as being genuine. 45In relation to the evidence as to the records of Jet Café in relation to the 11 payments made in the amount of $409 per week from January 2006. 46The plaintiff disputed the defendant's contention that the 11 payments of $408 are consistent with the payment of wages under the relevant award for a grade 2 employee (at the gross rate of $455.30 per week). Reference was made to the 2003 tax scales which, if applied to that weekly gross amount would produce a net result of $378 per week: Submissions at [75]. 47Reference was also made to the evidence of Ms Mowad as to what was termed a "half-half" arrangement (a reference to half the plaintiff's remuneration allegedly having been paid in cash and the other half as recorded in the employer's records): at [76]. 48It was contended for the plaintiff that on analysis the evidence would support a finding that the plaintiff was "... basically earning $1000 gross per week, which would accord with 40 hours at $25 per hour ...": at [77]. 49In relation to the records of the Jet Café business, variations in the evidence as to the plaintiff's commencement date with it were noted: at [78]. Reliance was placed upon records which contradicted the defendant's argument that the plaintiff only commenced work at Jet Café the day before the accident. Other records, referred to in the submission, were said to support the proposition that the plaintiff commenced work in January 2003: at [78]. The information supplied by Ms Mowad in response to a letter from the defendant's solicitors dated 9 May 2006, suggesting a net wage of $3,240 per week, (Blue 2/340) should be taken as indicating an average weekly figure of $748 net per week: at [78]. 50It was contended on behalf of the plaintiff that allowance should be made for Ms Mowad's "paperwork systems" which were "inefficient, poor and involved substantial informality and inaccuracies ...": at [79]. 51The submission for the plaintiff dealt with each of the matters raised and relied upon by the defendant in its contention that Exhibit G was not a genuine document: at [80]-[87]. I do not here reproduce the detail of the particular matters therein raised. They are discussed later in this judgment. 52The submission was that the defendant's argument that the plaintiff only earned the amounts shown in the Payment summary should be rejected. The amount of $409 net per week for the plaintiff was said to be far too low for a worker who was highly experienced, valued and well-regarded in the particular employment position for which he was required: at [47]. An amount of $409 net per week was said to be far too low for the pre-injury position he occupied. It was also stated that it can be assumed that in the restaurant/café industry there is a fair amount of cash payments that can be received. Taking all matters into account, it was extremely unlikely that the plaintiff would have undertaken employment at the low rate of $409 net per week: at [87].

[11]

(B) DEFENDANT'S SUBMISSIONS 53The Outline of Defendant's Submissions dated 27 August 2012, set out detailed submissions in relation to the background, material facts, relevant documents obtained by the defendant, the decision of the Court of Appeal and matters concerning construction of s 118: at [1]-[66]. 54The defendant disputed the contention made on behalf of the plaintiff that the Court in the present proceedings could not take into account acts of dishonesty by the plaintiff prior to the settlement conference, of which the defendant is now aware: at [54]-[56]. 55The matters relied upon by the defendant in this respect were set out at [60]-[61]. An alternative or second suggested approach was set out in the defendant's outline of submissions at [62]-[66]. Although I do not here set out the detail of those submissions, I have carefully considered all of the submissions raised on this issue and the other matters addressed in the defendant's outline of submissions. I will return to this issue in greater detail below. 56It is sufficient to state here that, in general terms, I accept, as was submitted for the defendant in relation to the "second way" of approaching the matter, that the Court should have regard and bring into account any knowledge that the plaintiff had as to his non-disclosure of prior injury and what was referred to as the "non-authenticity" of any financial documents he provided to the defendant and in particular to false or misleading information. I have sought to give effect to that approach in the ultimate determination of these proceedings. 57The defendant's written submission set out its contentions as to the findings of fact that ought to be made: at [67]-[87]. I have also considered the submissions made as to the failure by the plaintiff to call Mr Armstrong in the proceedings: at [88]-[92]. I will deal with these issues later in this judgment. 58In relation to the issue of the quantification of any "financial benefit" fraudulently obtained, the defendant relied upon submissions set out at [93]-[104] of its outline of submissions. I will return to consider the issues there addressed later in this judgment.

[16]

(C) THE PLAINTIFF'S INCONSISTENT STATEMENTS ON HIS PRE-2003 MEDICAL HISTORY 71The plaintiff's claim form and CARS statement were incorrect. Beazley JA noted that both the claim form and the CARS Statement included statements that the plaintiff had not had any previous injury to his back and had not made any previous claim for compensation and that both statements were false: at [63]. He had in fact sustained an injury to his back on 23 May 1993 whilst employed as a shop assistant when he fell from a truck and a loading ramp suffering a disc protrusion at L4/5 and a fracture to the endplate of the L4 vertebrae. He had been hospitalised for about four days and came under the care of an orthopaedic specialist, Dr Bruce. Dr Bruce had reviewed him in June, July, and August 1993. He made a claim and was paid workers compensation at that time. 72According to the report of Dr Bruce dated 19 July 1993, the plaintiff continued to have discogenic back pain. A more detailed examination of the clinical history whilst he was under Dr Bruce's care is set out below. On 28 August 1993, Dr Bruce observed that he still had a decreased range of movement of the lumbar spine but no neurological signs. He certified him fit to resume light duties on and from 29 August 1993. It appears that on advice he resigned from his employment as a shop assistant and commenced working in the hospitality industry as a waiter. 73The evidence establishes, and I so find, that the plaintiff's statement in the claim form in the CARS assessment that he had had no previous injuries to his back was false and must be taken to have been known by the plaintiff at the time to have been false. 74The evidence, as I have indicated, establishes that the 1993 injury caused injury to the plaintiff's lower back which produced disabling symptoms for a period of time. However, as discussed below, there was no evidence of ongoing disability or loss of time off work by reason of the 1993 injury in the years leading up to the 2003 accident. There was evidence, apart from the plaintiff's own evidence, that he had continued working following recovery from the 1993 injury. 75I will return to the significance of these findings to the overall question that arises under s 118(2)(a) of the MAC Act.

[17]

(D) HISTORY OF TREATMENT: THE 1993 INJURY 76The plaintiff was originally referred to Dr Warwick J.M. Bruce, Orthopaedic Surgeon, by a Dr A Pricolo of Western Suburbs Hospital. Dr Bruce treated him in respect of his 1993 injury between 24 May 1993 and 27 September 1993. Dr Bruce's reports were tendered in the first hearing and are contained within Blue Appeal Book 3 at pp 981-1000. 77Dr Bruce took a history of the plaintiff having fallen on 23 May 1993 between a truck and a loading ramp hitting his lumbar spine: Dr Bruce's first report (24 May 1993). Following radiological investigation and a CT scan performed on 26 May 1993, Dr Bruce diagnosed a posterior protrusion of the L5 disc with indentation of the thecal sac. He noted a fragment had separated from the posteroinferior aspect of the L4 vertable body in association with the disc lesion contributing to the indentation of the thecal sac. 78He reviewed the plaintiff on further occasions, in particular, on 7 June 1993, 24 June 1993, 19 July 1993, 26 August 1993, 27 September 1993. 79In his report of 27 September 1993, Dr Bruce noted that the plaintiff at that time was still on light duties and did not get much pain "except for an occasional twinge": (Blue AB 992). In the same report he said "I am very happy with his progress and will see him in 6 weeks time". 80He subsequently saw him on and after 7 December 1993 in respect of a right knee problem and pain in the right thigh. Following his review on 7 December 1993, Dr Bruce observed, "back is now good with no real discomfort and no right leg pain". 81On 23 May 2007, Dr Bruce provided the plaintiff's then solicitors, Young and Muggleton, with a comprehensive report setting out the full accident history, investigations and results on examination. 82So far as the plaintiff's back was concerned, Dr Bruce wrote: "It seems the last time I saw him about his back was on the 27th September, 1993. He was still on light duties and did not get much pain except for an occasional twinge. He had a normal gait and could walk on his heels and toes. There was mild restriction of lumbar spine movement but no neurological signs. At that time I said I was happy with his progress and I would see him in 6 weeks time. I am not sure if I saw him again." 83A little later in his report he stated: "We can say that after his recovery from the 1993 accident he led a very active life and did not have back problems until the injury in 2003. Also recurrent pain from a disc injury usually occurs with lifting or twisting. The fact that he was in a bike accident being hit by a car is a different mechanism of trauma than the spinal surgeons that had operated on his back are the ones that can best comment on whether this is a different injury." (Blue AB 3, 1000). 84Doctor Robert S Cameron, Consultant Surgeon, examined the plaintiff on behalf of QBE Workers Compensation (NSW) Limited, the workers compensation insurer of the plaintiff's then employer. He wrote a report dated 17 September 2004: (Blue AB 3, 1001-1004). 85In the report, Dr Cameron recorded that the plaintiff had been under Dr Bruce's care, had had physiotherapy for a few weeks and some spa treatment afterwards, but had no other active treatment. He recorded the position following the 1993 injury as follows: "... symptoms gradually resolved over ensuring months and he was certified fit for work on light duties last month. At that stage he resigned from his position with World of Fruit and he does not intend to return to heavy work. Last week he started a trial of unpaid work as a waiter, working 2 or 3 hour shifts about once a week." 86Dr Cameron expressed the opinion that the plaintiff had sustained an injury to his back with a fracture of the L4 vertebral body posteriorly and some probable injury to the L4/5 intervertible disc. He noted he had been treated conservatively, and on examination he showed mild restriction of back movement, probably with some overprotection. He noted that symptoms in the right lower leg were not consistent with an organic nerve distribution. Dr Cameron wrote: "Mr Checchia is expected to make a full recovery from his injury. There is no indication for surgical or other active medical treatment. Mr Checchia is now fit to return to work on a basis of graduated selected duties. He remains unfit for work involving heavy lifting or repeated bending, probably for the next six months. As Mr Checchia has resigned from his work with World of Fruit, a graduated increase of work as a waiter would be appropriate for the time being ... The prognosis is for full recovery without permanent impairment." 87On the evidence the plaintiff resumed work as a waiter. Mr Roberts SC, who provided the defendant insurer with two expert opinions (discussed below) noted on the material reviewed by him that the plaintiff had apparently changed his employment as a result of the 1993 injury and had some back pain in September 1994 on moderate lifting and bending and some reduced sensation in the right leg. Mr Roberts also stated in his first report, at [21], that he proceeded on the assumption that after 1994 the plaintiff did not suffer from symptoms of any movement in his lower back and his capacity to perform work as a waiter/supervisor was unaffected. That, with respect, appears to be an accurate statement of the plaintiff's post-1993 condition, supported by the evidence in the present proceedings. 88The plaintiff was examined by Dr JM Matheson, Consultant Neurosurgeon, on behalf of the defendant insurer. As discussed below, Dr Matheson provided a number of reports. In his initial report dated 6 October 2005, Mr Matheson expressed the opinion that the plaintiff had a large calcified disc lesion on the right side which was certainly present before the accident. He recorded that the plaintiff denied any symptoms prior to the 2003 accident and that the accident appears to have precipitated further prolapsing of the disc at L4/5 and the entrapment of the L5 nerve root. He stated that this was probably due to the accident but not certainly so. He stated that it would be impossible to deny a relationship: (Blue AB 3, 1104). 89Dr Matheson provided a further report dated 11 October 2005 in which he noted that Dr R Rushworth had diagnosed the plaintiff with a recurrent L4/5 disc lesion and that Dr Rushworth had felt that the subject accident was a substantial contributing factor to his condition. He also noted reports of other doctors including Dr Steele dated 27 October 2004, and Dr John Lawson dated 29 March 2005. He stated that nothing in the reports caused him to alter his previously expressed opinion. 90Dr Matheson wrote a report dated 18 March 2006 to the defendant's solicitors. He referred to the fact that the plaintiff had undergone back surgery on three occasions. The initial surgery, he noted, was undertaken by Dr Parkinson. He was later operated on on 26 July 2004 by Dr Steele. In the Opinion section of the report he noted that the plaintiff through having undergone three back operations was not improving, and that he had some functional features: "... but nevertheless an established disability is present. Whilst it is almost certain there are some degenerative changes in his back prior to his accident, the history given from the accident would lead us to believe that it caused the prolapse of the L4/5 disc and ultimately his surgery and disability. This would have to be related to the accident ..." (Blue AB, Vol 3 at p1111). (emphasis added) 91On 12 December 2006, Dr Matheson wrote a report to the defendant's solicitors which addressed information that had been supplied to him concerning the plaintiff's back injury sustained in 1993. He stated that that information influenced his opinion. Having regard to observations that he had earlier made as to degenerative changes, he said that the new information about the 1993 injury had come as no surprise to him. In his conclusion he stated that the information relating to the 1993 incident which included the employer's Report of Injury, a report from Dr Bruce dated 27 May 1993 reporting on investigations, and a report to QBE dated 19 July 1993 as well as the report of Dr Cameron dated 19 September 1994, led him to state that such material: "... makes me radically alter my opinion of 18th May 2006. Clearly the incident of 21st January 2003 had little effect on him. It was merely a recurrence of his symptoms falling off a bike. It did not cause the L4/5 prolapse which was present many years earlier. It is clear that the main genesis of his problems is in 1993 and the incident of 21 January 2003 is unlikely to have played any part in the progression of his symptoms." 92Dr Matheson did not identify specifically how the additional information operated to require an alteration of his opinion given Dr Bruce's opinion to the effect that the plaintiff had recovered from the 1993 injury, together with the history of him working without loss of time over the period of almost 10 years (1993 to January 2003) and the later history that discogenic symptoms and findings linked to the production of neurological symptoms in the plaintiff's right lower back commenced after the 2003 accident. I will return to Dr Matheson's alteration of his opinion below. 93On 26 August 2008, Dr Matheson reported to the defendant's solicitors on having viewed video film. He concluded that the material suggested that the plaintiff had "a minor back disorder" and he considered that the film indicated "... he was exaggerating a bit when he was close to a medical environment but there is evidence of minor back disorder in some of the other film but also evidence that he is capable of working ..." (Blue AB 3, 1117). Dr Matheson's opinion based on the video surveillance in this regard, as noted below, was contrary to other medical opinions given in evidence. 94On 18 September 2008, Dr Matheson issued his final report, again commenting on film of the plaintiff that he had been shown. He did not consider that it showed him doing anything strenuous, that it did not exclude a back disability, but it showed that he was quite functional. 95The medical history, including the history of the treating doctors, was reviewed by Mr Roberts SC in his Opinion dated 14 June 2012 at [23] to [49]. Mr Roberts took into account in his analysis the fact that subsequent to the 2003 accident the plaintiff had undergone surgery on three occasions, namely: (i) On 12 May 2003 by Dr Parkinson - a right L5 rhizolysis and L4/5 discectomy. (ii) On 26 June 2004, a further discectomy - at operation the L4 nerve root was found to be significantly compressed by pieces of floating disc. (iii) On 21 November 2005, performance by Drs Parkinson and Bentivoglio of a further decompression at L4/5 and a pedicle screw fusion at that level. 96Mr Roberts reviewed the reports of the defendant insurer's qualified specialists at [69] to [80] of his opinion. (This review did not include Dr Matheson's report concerning the new material that had been supplied to him confirming the fact of the 1993 injury.) Mr Roberts then assessed the question of the plaintiff's capacity for work based on the medical evidence available to him. 97As to his capacity for work subsequent to the 1993 accident, Mr Roberts concluded in his Opinion of 14 June 2012: "104 It would certainly have been open to the plaintiff to argue that he had, to all intents and purposes, no residual incapacity. On any view, such residual capacity he had was extremely limited. No one suggests he could have gone back to his pre-injury employment or a full-time basis, and most suggest that only sedentary work, probably on a part-time basis, would have been appropriate." 98In oral evidence, Mr Roberts accepted that he was indicating in that paragraph that it was open to the plaintiff to argue that he had no residual incapacity, and on any view it was extremely limited: (T 201, lines 4-7). 99He indicated that he did not think that Dr Bowers' assessment of the plaintiff's residual earning capacity would translate into a very likely finding. 100He said: "... I think it was Dr Bowers who said in his report that he could work something like - correct me if I am wrong - two-thirds of normal hours or something. My view was that that would be a very unlikely finding, it would be too high a residual capacity": (T 201:15-20) 101Mr Roberts observed in respect of Dr Cameron's report: "... however it is notable that the plaintiff apparently changed his employment as a result of the 1993 injury and even in September 1994 he noticed some back pain after moderate lifting or bending and still had some reduced sensation in his right leg (see Dr Cameron's report): at [20]. 102In his conclusions, Mr Roberts observed: "128 To my mind the plaintiff's failure to disclose this prior injury, even though it occurred 10 years prior to subject injury, could hardly have been the result of forgetfulness. According to the history he gave Dr Cameron, he changed occupations following his injury. He had been hospitalised for 3 days following the injury and had been off work for about 3 months. 129 Of course this would probably go to the plaintiff's credit. It is conceivable that NRMA may have been able to obtain a report before trial raising the possibility that his pre-existing condition would have come against him in any event and thus affecting the award for future loss. However, accepting the lack of symptoms for a number of years prior to the subject accident, that seems unlikely." 103On the question as to whether the 1993 injury had played any significant role in the plaintiff's ongoing back disability/symptoms and the cause of his ongoing incapacity, Mr Roberts in his oral evidence expressed his opinion on the significance of matters established by the medical evidence. He stated: "Applying the lawyer's eye to it it would seem to me that the earlier injury did nothing more than render him more susceptible. Dr Matheson talks of there being a calcified lesion, but it wasn't causing any - I accepted that wasn't causing any symptoms until the current, the subject accident": T 202, lines 3-6. 104Mr Roberts was asked about the failure to disclose the 1993 injury. It was put to him: "Q. It seems, I think based on your evidence and analysis that at the end of the day the prior injury couldn't be said to play any on-going role, certainly not a significant role, in the disability which put him out of work. A. Yes." (T 202, lines 32-36) 105Mr Roberts' evidence provides an expert assessment by Senior Counsel, of the significance of the medical evidence upon the issues relevant to the settlement value of the plaintiff's claim. 106It is clear that Mr Roberts, with respect, accurately recorded and analysed the medical evidence. His conclusion that the 1993 injury did not play any significant ongoing role in the disability which put the plaintiff off work in 2003, was well supported by the medical evidence including, in particular, the evidence of Dr Bruce and Dr Parkinson. Dr Matheson's later and altered opinion (see [91] above), conflicts with the opinions of Dr Bruce, the treating specialist responsible for the plaintiff's treatment in 1993 and of Dr Parkinson who treated him in the 2003-2006 period respectively. Having closely considered their evidence, I find their opinions quite compelling. Additionally, there was lay evidence to which I have earlier referred that the plaintiff had appeared to be working and otherwise proceeding without signs of back disability in the years leading to the accident in 2003. 107Dr Parkinson reviewed the medical history of the plaintiff's treatment in 1993, including, in particular, the reports of Drs Bruce and Cameron. He concluded: "Based on this, and the fact that Mr Checchia went on to continue full employment following this injury and did not require any further treatment beyond what Dr Bruce had performed in 1993, that if Mr Checchia had suffered a chronic injury at that time, then it would have caused trouble for him in the 10 years in between the first accident and the second. I am entirely of the opinion that Mr Checchia's trouble with his back and leg which are causing his current symptoms have resulted from the motor vehicle accident and secondarily from the treatment which has been required following it. This includes the spinal surgery which he has undergone. I am not of the opinion that there is any pre-existing component to his current condition attributable to the 1993 accident, for the above reasons ..." 108The cross-examination of Dr Parkinson at Black AB 1, 451-484, did not undermine either the fundamental reasons upon which Dr Parkinson's opinion was expressed, nor his conclusion on attributability (the 2003 accident and subsequently surgery for the disc injury sustained in that accident). 109Examination of Dr Matheson's oral evidence does not, as earlier indicated, provide any basis or explanation for his revised opinion in his 12 December 2006 report. As has been established, the prime duty of an expert in giving opinion evidence is to furnish the trier of fact with criteria enabling evaluation of the validity of the expert's conclusions: Makita (Australia) Pty Ltd v Sprowles (2001) NSWLR 705, 729 per Heydon JA (as his Honour then was); Dasreef Pty Ltd v Hawchar [2011] 243 CLR 588 at [37]. 110He gave extensive evidence-in-chief beyond his written reports (Black AB 1, 619, 626). He was cross-examined at 626-641. He was asked in evidence-in-chief about findings made on operation. The first surgery, as earlier noted, was performed by Dr Parkinson on 12 May 2003 (not 23 May 2003 as Dr Matheson stated in his first report (Black AB 1, 1102). In that report, Dr Matheson identified each of the "investigations" performed (radiological, MRI and CT scans). He did not, however, refer specifically in any of his reports to Dr Parkinson's detailed "Operation Note" on his findings at surgery on 12 May 2003. 111In oral evidence Dr Matheson did not have a copy of the "Operation Note" but claimed that he could recall the "report": Black AB 2, 621 L-M. He was then invited by Senior Counsel for the defendant to comment "about the operation findings as found by Dr Parkinson ..." at 621 M-N. He replied: "A. I found it clear that there was a scarred up mass as they put it and was not disc material so there was nothing new is 'seen' and no new pathology evident. Or unreported, anyway." Black AB 2, 621 M-P. 112He then went on to deal with the effect of the 2003 injury upon that basis (at 621 P-X). 113Dr Matheson's evidence on the operation findings as set out above is, as evident from Dr Parkinson's reported findings, however, quite inaccurate and his opinions on causation are, in my opinion, affected by that inaccuracy. Specifically: Dr Parkinson, as the operation surgeon, did not describe his findings as a "scarred up mass" as Dr Matheson claimed. There was, in fact, a finding of "new pathology" as Dr Parkinson's "Operation Note" and his report of 10 November 2005 (Blue AB 3, 1214) both make clear. Dr Parkinson's "Operation Note" records the following findings: "... a broad based disc herniation could be palpated at the L4/5 disc. Retracting the dura showed a large intra annular L4/5 disc protrusion with no evidence of any extruded fragment. This appeared to be compressing the L5 nerve root at its axilla. The postero lateral disc was incised with a number 15 scalpel blood and free fragments of disc were meticulously removed with great care." 114Dr Matheson did not refer to or address each or any of Dr Parkinson's specific findings. Dr Parkinson was cross-examined about the surgery and findings on the operation he performed on 12 May 2003: Black AB 1, 458-459. It was not put to him that there was "no new pathology evident" as Dr Matheson claimed in his evidence at Black AB 2, 621. Nor was it put to Dr Parkinson in cross-examination that there was no "broad based disc herniation", or no "large intra annular 4/5 disc protrusion" or that there was no compression by that disc causing the disc herniation. No proposition was put to Dr Parkinson in cross-examination that his findings as reported by him in his Operation Note for 12 May 2003 (or anyone of them) were not recent or did not or may not have been caused by the 2003 motor vehicle accident. In other words the cross-examiner did not set out in cross-examination to establish that no new pathology arose from the 2003 motor vehicle accident. 115Dr Matheson's evidence on the pathological effects of the 2003 accident, and his views on causation in relation to that accident and the 1993 injury, were, with respect, in the nature of unsupported and unexplained assertions which conflicted with the unchallenged evidence of Dr Parkinson. 116On the evidence, and I so find, the plaintiff made an effective recovery from the 1993 injury. By December 1993 he had regained his capacity to undertake a wide range of work, and he in fact worked thereafter until January 2003 in the hospitality industry as a waiter. 117The medical evidence overall clearly supported the plaintiff's claim for damages on the issue of causation. Apart from Dr Matheson's revised opinion, the evidence, as Mr Roberts properly accepted, favoured a causal nexus between the 2003 accident and the onset of a discogenic lesion and associated pain at the L4/5 level with L5 nerve root radiculopathy. 118In considering settlement of the plaintiff's claim, if the defendant insurer had possessed knowledge of the 1993 accident and injury and associated medical treatment, in light of the evidence and opinions of the treating doctors in 1993 it, in my opinion, could not, and would not, have considered that there existed an evidentiary basis to support a significant discount on settlement by reason of the fact that the claimant had sustained injury to his lumbar spine in 1993. Mr Roberts' Opinion, as I have noted, in effect, accepted that proposition. Whilst the 1993 accident/injury may be seen as a matter that was relevant to the plaintiff's reliability insofar as the level of his subjective symptoms following the January 2003 accident was concerned, the available medical opinion of treating specialists, as at October 2006, as discussed above, strongly supported the plaintiff's claim, firstly, on the issue of causation and, secondly, having regard to the operative findings and the need for multiple surgical procedures, on the issues of his ongoing disability and incapacity.

[19]

(i) Employment Records 119A central issue in the assessment of the plaintiff's claim for past and future economic loss concerned his pre-injury earnings. In the course of the first proceedings and on the retrial, considerable attention was directed to his earnings in his employment in the 2002 financial year with employers, Blue's Point Café and Bar Cupola and in the period immediately prior to the accident with Kahve Pty Ltd trading as QVB Jet Café. The nature of the issue requires detailed analysis of the evidence. 120The period of his employment with Jet Café was itself in dispute. The plaintiff maintained that he commenced employment with Jet Café (operated by Ms Antoinette Mowad) in December 2002 whereas the defendant asserted that he had been employed only days before the motor vehicle accident occurring on 21 January 2003. 121The issue of the plaintiff's pre-injury earnings requires an examination of relevant taxation records, including PAYG payment summaries, the plaintiff's income tax returns and a document allegedly signed on 16 December 2002 in respect of terms and conditions of the plaintiff's employment at Jet Café (the "Employment Agreement") as to which see [184] to [263] below. 122The 2002 financial year was the last complete tax year prior to the plaintiff's accident on 21 January 2003. He worked after the accident until 8 April 2003, although he said with difficulty and with a reduction in work duties. Significant claims by the plaintiff in the present proceedings concerned his claims for past and future economic loss. This brought into question the true level of his pre-injury earnings in the 2002 tax year. This brought into question specific documents which the defendant insurer alleged were false documents made well after the 2002 financial year, being: (i) A PAYG Payment Summary from Blue's Point Café (operated by Mr Anthony Colosi trading as Blue's Point Café) for the 2002 financial year (utilising a 2005 ATO form): Blue AB 1, 97 - Exhibit 19 (which with Exhibit 18 is referred to in this judgment as "the revised PAYG Payment Summaries". (ii) A PAYG Payment Summary from Bar Cupola for the 2002 financial year (utilising 2005 ATO form): Blue AB 1, 96 (Exhibit 18). (iii) A letter of employment addressed to the plaintiff bearing date 15 December 2002 (Blue AB 1, 189 - Exhibit G), the "Employment Agreement". 123As to the first of these documents - Exhibit 19 - the plaintiffs' gross income from Blue's Point Café for the 2002 year is recorded as $35,700: Blue AB 1, 97. However, the original PAYG payment summaries for the 2002 year issued by Blue's Point Café recorded the plaintiff's gross earnings at a much lower figure, namely at $7,800. It was apparently signed by a Mr Colosi and dated 2 October 2002. (Blue AB 1, 103) 124There is therefore a significant difference between the total of the original PAYG Payment Summary and the Blue's Point Café revised PAYG Payment Summary and the original Payment Summary, namely an amount of $27,900. The defendant insurer strongly disputed the authenticity of Exhibit 19. Both PAYG summaries issued by Blue's Point Café for the 2002 financial year were purportedly signed by Mr T Colosi, respectively at Blue AB 1, 97 and 103, and both bore the handwritten date, 2 October 2002. Mr Colosi was not called to give evidence either in the first trial or in the retrial with which this judgment is concerned. The defendant contends, in the circumstances, having regard in particular to Exhibit 19 itself and related matters, that a Jones v Dunkel (1959) 101 CLR 298 inference should be drawn against the plaintiff in respect of the failure to call Mr Colosi. 125In respect of the same financial year, an original PAYG Payment Summary was issued by Bar Cupola for the plaintiff's gross earnings in respect of that year, the amount of $6,899 dated 30 June 2002 (Blue AB 1, 102). There was a second PAYG Payment Summary issued by Bar Cupola for the same year, 2002, (dated 30 June 2002). However, it was of less significance than Exhibit 19 as it recorded the same amount of gross and net earnings ($6,899) as appeared in the original document. (It was written on a form identified as "Nat.46-01-2005"). 126I have earlier referred to the specific matters relied upon in the plaintiff's submissions. 127The defendant's submission was that the plaintiff was involved in "in the forgery of the PAYG payment summaries (and in particular the PAYG payment summary in the higher amount from Blue's Point Café ..."): Outline of Defendant's Submissions at [65]. 128The defendant's contention that the plaintiff had deliberately overstated his pre-injury earnings relied upon: (i) The statement of the plaintiff, Exhibit 9, forming part of his CARS application (lodged prior to 20 October 2006); (ii) The alleged falsification of the plaintiff's earnings in the 2002 financial year (in particular, the revised Payment Summary for Blue's Point Café - Exhibit 19). (iii) The so-called 'Employment Agreement' with Jet Café which was produced to the defendant's solicitor prior to the settlement conference. The defendant contended that the plaintiff had falsified and/or participated in its falsification: Outline of Defendant's Submissions at [67] 5. 129The defendant submitted that the plaintiff's true earnings from the Blue's Point Café in the 2002 financial year was $7,800 gross in accordance with what was described as "... the genuine PAYG payment summary dated 2 October 2002 ... and in accordance with the Plaintiff's 2002 tax return [Blue 54: Outline of Defendant's Submissions at [67] 7. 130The plaintiff gave evidence as to the circumstances in which he came to receive the revised Payment Summaries for the 2002 financial year (on 2005 ATO forms). That evidence is discussed in some detail below.

[20]

(ii) The Plaintiff's Evidence on the Payment Summaries 131In evidence-in-chief the plaintiff's evidence was that information supplied to the defendant's solicitors as to his earnings at various stages was honestly given by him (T 65/10-16). He said that the "group certificates" (namely the Payment Summaries) were received by him at his home and either he or his wife would put them away in a drawer (T 67). He said that he did not compare what was shown on the Payment Summaries against the amounts that he had in fact received from Mr Colosi at Blue's Point Café (T 67/30-35). He said that it was his practice to provide them to his accountant when required. 132He was asked for his explanation as to how the revised PAYG summaries for the 2002 year came into existence in 2005 (they being printed on the 2005 ATO version of the Payment Summary required to be issued by employees). He said that he had spoken to his accountants, ITP, Burwood, and asked the person he dealt with at ITP to make sure that all his "group certificates" were up-to-date and "... confirm (sic) with all my employer, if you need to. That was it, really." (T 68/40-45). He said he did not take any steps to contact Bar Cupola or Blue's Point Café in order to obtain the revised PAYG Payment Summaries. 133When asked how the 2005 revised payment summary for Blue's Point Café came into existence the plaintiff gave evidence as follows: "Q. What's your best recollection as to how it came about you got those? A. Well I was going through all my - really, I was looking through my drawers, looking through documents and all that and I actually found - I found these group certificates through my files of the paper work that I have there at the time." (T 69/45-50) 134He said that he first took steps to obtain documentation as to his true earnings at both Blue's Point Café and Bar Cupola in "around 2006; something like that" (T 70/15). 135He was then asked: "Q. Okay. I'm asking you about what were called the post 2005 PAYG summaries; what is showing $35,700 for the Blue's Café and the other is $6,899 for Bar Cupola, were those amounts accurate? A. Yes, they were the right amounts. Q. In relation to what was written on either the original group certificates or the later group certificates did you have any role or did you make any communications in relation to the employer about what should be in those group certificates? A. No. Q. I've probably asked you about this to a large extent, but just for clarity, did you make any contact with either the proprietors or anyone at Bar Cupola or Blue's Café in relation to getting replacement group certificates? A. No. Q. When you provided, what I'll call, the second set of group certificates for use in the case did you do so honestly? A. Yes." (T 71/10-28) 136There was a significant amount of additional evidence given by the plaintiff in cross-examination as to how the revised payment summaries received from Blue's Point Café and Bar Cupola came into existence and how they came into his possession. It is not necessary to detail all of that evidence. It was effectively summarised in the Plaintiff's Submissions at [62]. In summary the plaintiff's evidence was that towards the end of 2005 he was asked to make sure that his "group certificates" were all up-to-date and accordingly he went to his accountant to make sure that he had all the relevant copies and that everything was correct and up-to-date. He indicated in his evidence that he left it up to his accountant to pursue that task, that is, to make sure that the payment summaries were up to date and to confirm that with his employers if the accountants needed to. As observed in the plaintiff's written submissions, at the time he went to the accountants he had a claim for economic loss as part of his personal injuries claim and he needed documentation to support the claim: Plaintiff's Written Submissions 62. It was also noted in that paragraph that the plaintiff's evidence was that he understood or believed that his accountant must have contacted both Bar Cupola and Blue's Point Café (T 68.35-69.06). 137When tested on the evidence as to the circumstances leading to the production of the revised Payment Summaries the plaintiff said he left it to the accountants to pursue his request - that he "... left it all up to them to make sure that everything was there and correct ...": Plaintiff's Written Submissions at 62. He was not able to provide a name as to the accountant to whom he made the request at ITP (he said there was a turnover of accounting staff at that firm.) He could not recall specifically when he made the request and he could not recall whether the person to whom the request was directed at ITP was a male or a female. In the written submissions it was stated that what was provided to the defendant's solicitors before the settlement conference in 2006 was: "... whatever was given to him ... but he cannot remember how he got them, in that he cannot remember if he went and picked them up or ITP sent them to him but one way or another he got them": Plaintiff's Written Submissions at 62; T 166.37-166.45. 138At some unknown time after the plaintiff said that he made the request to ITP for copies of relevant group certificates and for them to check that they were up-to-date, he said that he found the revised Payment Summaries (include, in particular, the controversial Exhibit 19) in a drawer at his home. 139On behalf of the defendant, it was submitted that the plaintiff's evidence on the revised payment summary for the 2002 financial year (AB 96-97) was "... evasive, contrived, illogical and obviously false (T 145-149). 140In cross-examination, he was asked whether he obtained the second set of payment summaries or group certificates from ITP and he said he could not remember (T 145/15-17). He said he did not create the documents (T 125/20). He rejected the proposition that he created them in collusion with some other person or persons (T 145/20-25). He also disputed that they were "fakes" (referring to the two Payment Summaries for the 2002 tax year). 141The plaintiff said in cross-examination that he could not recall when he received the second set of (the "revised") payment summaries. He said that the revised payment summary purportedly signed by Mr Colosi could have come in the mail (T 146/45-50). He admitted that he may in fact have looked at the original payment summary from Blue's Point Café when he received it in October 2002 from Mr Colosi. He later suggested that it may have been received in the mail and his wife placed it in the drawer (T 147). 142The plaintiff was asked in cross-examination: "Q. Your employers only sent you one group certificate or PAYG payment summary each just after the end of the 2002 tax year, didn't they? A. No, I received another one. Q. In October 2002 in the case of the document on page 103 you received from your employer, Blues Point Café, the document, a copy of which is on that page, didn't you? A. I received another one of these, sir. Q. Not in October 2002, did you? A. I don't know when I received it. Q. Well it certainly wasn't in October 2002, was it? A. Papers were put in the drawer. It could have been any time I received it. I don't remember. Q. Are you going to answer my question? It wasn't in October 2002 that you received it, was it? A. Mustn't have been. Q. It couldn't have been, could it? A. Well you've got one here and you've got one on the other side, sir. Q. But only this one on page 103 could have been received in October 2002, couldn't it? A. Like I said, sir, I received another one, at the time this is probably what I received. Q. And when did you receive the other one? A. I don't remember. Q. What year? A. I don't remember, sir. Q. Before or after October 2006? A. I don't remember. Q. From whom did you receive it? A. For Mr Colosi it looks like. That's what is says on the other one as well, sir. Q. But when did - how did you receive it from Mr Colosi? A. It could have come in the mail. Q. It could have, but did it? A. Yes, it must of. Q. Why? A. It must have been a miss - a mistake. Like this is very low income as stating on here, sir. Q. Well did you notice that when you received this document on page 103-- A. Yes. Q. --in October 2002? A. Yes. Q. You noticed: "Gee, that's a low income"? A. Yes. Q. What did you do about it? A. Didn't think anything of it. I was-- Q. Why not? A. I was working, lost track of time. Q. You knew this was an important tax document? A. Didn't cross my mind, sir. Q. You say now that you looked at it and thought: "Gee, that's a very low income"? A. Everything was filed in the cabinet. I looked at - I don't even half the time look at my paperwork, what I get-- Q. You looked-- A. --in the mail. My wife could have opened it up and put it in there herself. Q. You told me just a moment ago that you looked at it. A. Yeah I could have looked at it, but what I'm saying is I'm just going by what I'm seeing here. Q. You told me you did look at it. A. I could have looked at it at the time I took it to the Tax Department, sir-- Q. And you thought-- A. --to the tax accountant. Q. And you thought:" "Gee, that's a low income"? A. Yes. Q. But you did nothing about it? A. No. Didn't cross my mind. Q. Even though you say when you say low it's about $28,000 less than you earnt from that employer, is that what you say? A. Whatever's stating on here wasn't the right figure, in my head." 143The plaintiff was further cross-examined on the revised payment summary (Exhibit 19): "Q. Just look at the document on page 97? A. Yes. Q. When was that document created Mr Checchia? A. I'm not sure, sir. Q. What year? A. I'm not sure. Q. By whom? A. You've got it here the name, Mr Anthony Colosi. Q. That's what written there. A. Correct. Q. I asked you by whom it was created? A. I don't know. By him. Q. How do you know? A. Well it must be. It's got his name on there. Q. Anyone can write his name there. You could. A. Doesn't look like my handwriting. Q. You say that with a smile. Did you get someone else to write his name there? A. No, sir. Q. It would be rather foolish, actually, for you to write it there in your own handwriting, wouldn't it? A. Or anyone else, sir. Q. Why? A. Because it's not a legit document if someone else does it for you, or I do it. It's not a real document, is it -- Q. It's -- A. -- It's a lie. Q. It is a lie, isn't it? A. No. Q. Does that mean that the document on page 103 is a lie? A. No. ... Q. Can you explain the difference between 97 and 103? A. Well it's a mistake in the actual figure that should have been written down. Q. When he wrote $7,800 on page 103 at line N, that was a mistake, was it? A. Sir, I -- Q. Wait a moment. That was a mistake was it? A. I don't know, the way he did it, and when I received it, I just did the right thing and just went off and put it into the taxation - into the ITP, sir, when I found it. That was the right thing to do ..." (T 7 August 2012 at p 148) 144The plaintiff was taken to the contested PAYG summary a copy of which is at Blue AB 1, 97. He said that the signature "T Colosi was not in his handwriting and he did not get anyone else to write it" (T 148:35-50). He was asked to explain the difference between the first, or the original, PAYG payment summary dated 2 October 2002 at AB 1, 103 and the revised payment summary (Exhibit 19) purportedly signed by Mr Colosi on 2 October 2002 at p 97. He did not explain the difference but said that "well it's a mistake in the actual figure that should have been written down" (T 149:20-25). 145The plaintiff rejected the proposition that he had used the revised Payment Summary (Exhibit 19) in a deliberate attempt to mislead the defendant as to his 2002 earnings from Blue's Point Café (T 152:1-10). 146The following propositions were then put to him: (i) That the handwriting on the document, Exhibit 19, was different from the handwriting on the original payment summary issued by Mr Colosi on 30 June 2002. He agreed. (ii) That the signature "T Coloi" appeared to omit an "s" which appeared to be included in the signature "T Colosi" on the original payment summary dated 2 October 2002: Blue AB 1, 103. (iii) Whereas the original payment summary issued by Mr Colosi on 2 October 2002 was on a standard ATO form designated "NAT 46-2.2001" the revised payment summary (Exhibit 19) bore the designation "NAT 46-01.2005" 147The matters referred to in the preceding paragraph were relied upon by the defendant as indicia of the fact, as it contended, that the revised payment summary (Exhibit 19) was a false document. 148The plaintiff rejected the proposition that it was only when he realised that he had been "caught out" by reason of the notation "2005" on Exhibit 19 that he tried to amend his 2002 tax return in 2008: (T 7 August 2012, at 153 25-35). He was then asked: "Q. May we have your explanation for not attempting to amend this tax return earlier? A. No. Q. May we have your explanation for not attempting to amend your 2000, 2001 or 2003 tax returns at any time up to now, even though you say all of them are wrong. A. No." (T 7 August 2012 at p153, 30-44) 149Mr Rewell put to the plaintiff that the designation "NAT 46-01.2005" is evidence of the fact that the revised payment summary (Exhibit 19) in the name of Blue's Point Café was issued either in 2005 or 2006. That fact became common ground in the course of the plaintiff's cross-examination. It was the defendant's contention, again put to the plaintiff, that the revised payment summary was a false document either created by the plaintiff or created by somebody colluding with him. It was further put to him that the document was specifically created for the purposes of inflating his pre-injury earnings in order to deceive the defendant insurer and so operate to his benefit in settlement negotiations. The plaintiff denied those propositions: (Blue AB 1, 153). 150Mr Colosi was not called to give evidence in the plaintiff's case either in the first or second hearing. As earlier noted, the failure to do so was relied upon by the defendant for the purposes of drawing an adverse inference: Jones v Dunkel (1959) 101 CLR 298.

[22]

153The plaintiff's evidence was that he was earning in excess of $409 per week: "Q. Let me take you then to the period from 21 January '03 - that's the date of the accident - until April 2003 when you stopped work about 8 April. What were you earning during that period? A. I wasn't 100 per cent sure because I was still trying [to] do as many hours as I could to get a decent income because you can't survive on $409. I was still trying to put on as many hours as I could which was my original thing. I was getting up around as close as $700 until I was slowly getting worse and I couldn't get that any more, but I was getting the difference in cash. It was always given to me in cash, the difference." (T 6 August 2012 at p 99) 154It was pointed out to the plaintiff that the amount of $409 net per week was consistent with the level of earnings that had been disclosed in his tax returns for the tax years 2000 and 2001. "Q. Do you know that's almost exactly what your net earnings were, according to your 2000 and 2001 tax returns - almost exactly? A. Sir, when you make an agreement with a person, I don't look at what's been put on my tax. In the restaurant it was always substituted by cash given to me and this was a difference of the agreement that's always made, what they put on the tax. I never intended to look at whether they were doing the wrong thing or right thing." (p 99) I note that the word "substituted", in the last answer, in context may have been used either by the plaintiff in the sense of "supplemented" or as indicated that earnings as a whole were paid in cash. 155The plaintiff was further cross-examined on his tax returns for the years preceding the date of the accident. The evidence given by him under the protection of a s 128 certificate was to the following effect: The amount of gross earnings of $25,200 was not a true statement of his gross income for the 2000 tax year: (T 6 August 2012 at 104, 105). That his gross earnings disclosed in his 2001 tax year of $24,532 was not a true statement of his gross income for the 2001 tax year: (T 6 August 2012 at 106). That the total earnings of $14,699 disclosed in the return for the 2002 financial year was not a true statement of his gross income for that tax year: (T 6 August 2012 at 106) The gross income disclosed in the 2003 income tax return of $9,173 was not a true statement of his gross income for the 2003 tax year: (T 6 August 2012 at 106-107).

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(C) THE JET CAFÉ EMPLOYMENT AGREEMENT 156The plaintiff's case as originally presented was that his earnings at Jet Café were $1,000 per week. In that respect he was cross-examined on two documents which he relied upon for the assessment of his claim under the MAC Act. 157In an undated statement the plaintiff set out details of his employment - a copy of the statement is at Blue AB 1, 268-272. In paragraph 6 he stated: "I worked for QVB Jet Café in the Queen Victoria Building City as a café manager/supervisor. My hours were about 45 hours per week. The work was very hands on and involved standing on my feet for most of the time, with frequent bending and lifting, stooping, crouching, twisting. I was earning $1,000 p.w. My boss's name was Antoinette Mouard". 158In a further statement by the plaintiff dated 28 June 2008 (AB 1, 277-288) the plaintiff stated: "21 In December 2002 I obtained a job at QVB Jet Café in the Queen Victoria Building. I was employed by Kahve Pty Ltd t/as QVB Jet Café. My boss was Antoinette Mowad. Her husband was Tony Mowad. I agreed to work for $25 per hour, which involved about 50 hours work per week. But I had to go through a probationary trial period first before getting the full amount of this pay. So after I started work in December 2002 and up until the time of the accident I was not receiving the full amount of my pay. However, I was working satisfactorily and if the accident had not happened on 21 January 2003 I would have been receiving the full amount of the agreed pay. I was sure that during the probationary period I was working to the satisfaction of my employer and they were very happy with me." 159The plaintiff was cross-examined on these statements. He was asked: (6 August 2012 at 97). Q. At p 268 in paragraph 6, you talk about your work at the QVB Jet Café? A. Yes. Q. Do you see toward to end of that paragraph you say, 'I was earning $1,000 per week'? A. Yes. Q. Did you intend that to be a statement as to 'before tax' or 'after tax' earnings? A. Well that was based on the 45 hours per week, I think. Q. Weren't you stating there what you earned? A. It says I was earning - it's got 45 hours per week, so you work that out by 25. It should come out roughly to that amount. Q. Was that $1,000 per week meant to be a 'before tax' or 'after tax' figure? A. That's what I was given. I just said that's how much I was getting. I don't think I was lying about - that's what I was getting and that's what I actually stated. HIS HONOUR: Q. Do you mean getting in your hand clear, net, or getting from the employer? A. I think it was before tax. After tax it came to about $750 or something like that." 160The "Employment Agreement" provided that the plaintiff would be employed on the basis of a three-month probationary period. There was no specific hourly rate specified for the probationary employment. It was put to the plaintiff in cross-examination that he claimed to have only been paid $1,000 a week rather than $1,250 a week ($25 x 50 pw) because he was on probation. In other words, he referred to the probationary period as an explanation for earnings of only $409 net per week and not having been paid on the basis of $1,250 per week in accordance with the provisions of the "Employment Agreement." In response, the plaintiff said that he was only working 45 hours per week up to the date of the accident (T 6 August 2012 at p 98). It was then put to him in cross-examination: "Q. Let me tell you where I'm coming from. What you were trying to do in your 2008 statement was to explain what by then you knew to be the fact, that is, that you were earning $409 net per week from Jet Café. That's the fact, isn't it. A. No. Q. You were endeavouring to explain the banking records and other documents which, by then, you knew showed earnings of $409 net per week by referring to a probationary period, weren't you? A. No, sir, because there was money which we agreed on the sum of when I was doing the hours. Whatever she was giving me the difference of cash in the hand, and the rest was going toward, inside the bank, from what I knew, and that's how it was always." (T 6 August 2012 at p 99)

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(D) 2008 Application to Amend 2002 Tax Return 161The plaintiff was cross-examined upon an application which he made to amend his tax return for the 2002 tax year, not in the year of the settlement conference (2006) but some two years or so later: (T 6 August 2012 at 108, 110). 162Two matters of significance arose in respect of this aspect. Firstly, the plaintiff said that when he received the original PAYG Payment Summary from Mr Colosi in or about October 2002, he noticed that the gross income disclosed in it ($7,800) was a very low figure. I note that this is inconsistent with his evidence referred to at [131] above. He nonetheless proceeded to complete and lodge his 2002 tax return based upon that amount. Accordingly, he did not seek to amend the original PAYG Payment Summary dated 2 October 2002 until some years later, namely, in the year 2008. He agreed that he provided the revised payment summary, Exhibit 19, to his solicitor in the knowledge that it would be utilised for the purposes of negotiations with the defendant insurer in October 2006. Accordingly, the evidence indicates that the reason that he made application to amend his return for the 2002 tax year later, in 2008, was so that it could be used in the proceedings he later instituted against the defendant. 163It is also of significance that the plaintiff did not make application to amend any other tax returns that he had lodged before the 2002 tax year even though he was aware of the fact that the statements of gross income in them in respect of each year did not provide an accurate or correct account of his income for those years. 164Accordingly, in relation to pre-injury earnings, the plaintiff accepted that he had understated his income in respect of the four years abovementioned (2000, 2001, 2002 and 2003). He would not accept, however, that he had understated his income by significant amounts in each case (T 6 August 2012 at p 110: 15-20). He said he probably only understated his income by small amounts: (T 110: 1-25). 165He was asked why he had only attempted to amend the inaccurate tax return for the 2002 tax year: "Q. Why did you attempt to amend only one of the four inaccurate tax returns in 2008 instead of all four? A. I actually - sorry, like, I stated back before that was actually found back on a later date inside a pile of papers that other one." (T 6 August 2012 at p110) When pressed on the issue, the plaintiff failed to provide a response capable of providing an explanation as to why he had been so selective in amending only his tax returns for the 2002 year. 166The plaintiff maintained that during his employment with Jet Café, in addition to the weekly amounts of $409 net per week, he received additional money by way of cash earnings and that that continued through to the end of his employment on or about 8 April 2003: (T 7 August 2012, 130:10-50; T 131:1-30). He rejected the suggestion put to him that his evidence as to receiving additional cash earnings was deliberately false evidence: (T 7 August 2012 at p131 10-12). 167On the authenticity or otherwise of the relevant PAYG Payment Summaries for the 2002 tax returns it was again put to the plaintiff that the payment summaries at Blue AB 1, 102 and 103 were original documents and that the PAYG Payment Summaries at Blue AB 1, 96 and 97 (Exhibit 19) were not documents that he obtained from ITP and that they were "fakes": (T 7 August 2012 at 145 at 5-50). 168It was again put to the plaintiff in cross-examination (at p 152) that he used the revised Payment Summary, Exhibit 19, in a deliberate attempt to mislead the defendant insurer as to his 2002 earnings from Blue's Point Café. The plaintiff rejected the proposition: (T 152/10-20). He denied participating with Mr Colosi, or any other person, in creating the document: (T 152, 30-40). 169In the course of his evidence, the plaintiff demonstrated that he had an adequate grasp of the above issues and their significance on the question of his pre-injury earnings.

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(E) FINDINGS AND CONCLUSIONS ON PRE-INJURY EARNINGS DOCUMENTATION 170The significant aspects of Exhibit 19 purportedly issued by Mr Colosi (Blue Appeal Book 1 at 97) include the following: (i) The fact that the revised PAYG Payment Summary, although bearing the same date as the original (2 October 2002), recorded gross payments of more than four times the amount contained in the original payment summary ($35,700 as against $7,800). (ii) The plaintiff's inability to adequately explain how or in what circumstances he came to receive the revised payment summary or provide an explanation as to the circumstances of its creation. His evidence, earlier referred to, consisted of vague answers and in many respects a repetition of his claimed lack of memory (in particular as to when, or who at ITP he spoke to, how and when he received the revised payment summary, and how and by what means or information the earnings were revised up to $35,700). (iii) The failure to call Mr Colosi, the purported author of the document, to explain the reasons behind, and the basis upon which the revised payment summary document was created, assuming, of course that he was in fact the author of the document. The failure to call him as a witness provides a Jones v Dunkel inference. 171As earlier observed, after the first trial and after the decision of the Court of Appeal the plaintiff was very much on notice that in the re-trial the authenticity of Exhibit 19 would be a central issue. In those circumstances it would be expected that the claimed author of the revised Payment Summary (Exhibit 19), Mr Colosi, would have been called to give evidence to verify the plaintiff's account or assumption that ITP had contacted Mr Colosi and obtained information from him which then provided a basis for him to issue the revised Payment Summary. The fact that such a significant witness was not called does provide a sound basis for a Jones v Dunkel inference. 172The general principle is that the rule in Jones v Dunkel may be drawn from the failure of a party to adduce particular evidence where such evidence would reasonably have been expected. A party may be reasonably expected to call a person as a witness if that person is likely to be able to provide admissible evidence regarding some fact in issue or it would have been expected that a party would call the person in question and the failure to call him or her is not satisfactorily explained. 173The adverse inference that may be drawn in either of those circumstances is that the failure to call the witness would not have assisted the case of the party in question: Jones v Dunkel, supra, at 308, 312. 174The plaintiff's claim for the purpose of the Settlement Conference relied upon Exhibit 19, it having been provided to the defendant's solicitors for the purposes of the settlement conference. 175The plaintiff's evidence as to the circumstances in which he said he obtained the revised PAYG Payment Summary (Exhibit 19) was, in my assessment, far from convincing. The evidence given by him was vague and uncertain in content. It lacked specificity in terms of time, in particular the time he allegedly contacted ITP accountants, the person he dealt with, and the circumstances in which the revised PAYG Payment Summary came into existence. In addition the plaintiff's account of having found the document in a drawer at his home failed to explain how the revised Payment Summary allegedly came from Mr Colosi to ITP (or to himself) and how and by whom the document was received and then placed in the drawer in which he said he found it. His evidence was that he was aware of the remuneration disclosed in the original 2002 PAYG Summary and yet he lodged his return on the basis of it without seeking to challenge or correct its accuracy. 176The plaintiff's evidence in relation to the revised Payment Summary was marked by vague generality and was more in the nature of assertion than a factum account as to the creation and transmission of the document and its alleged subsequent discovery by the plaintiff at his home. 177The plaintiff's evidence of his knowledge as to the earnings disclosed in the original PAYG summary signed by Mr Colosi points against the truthfulness or credibility of his account in respect of the revised PAYG summary. As noted above, in cross-examination he conceded that he became aware soon after receiving the original PAYG summary from Mr Colosi that it specified a very low rate of gross earnings for the 2002 tax year. Yet his tax return lodged for the 2002 year adopted the particulars as to gross and net wages as specified in the original PAYG payment statement. Accordingly, with full knowledge of the information contained in the original PAYG Payment Summary the plaintiff was prepared to accept and use it for tax purposes. 178His conduct in not seeking to amend him tax return until 2008 tends to establish that it was only then, for the first time, that the plaintiff perceived the need to amend his tax return. On the evidence, he did so solely by reason of the fact that he perceived a need to reconcile his 2002 taxation return with the revised PAYG statement for the 2002 tax year for the purposes of the proceedings initiated by him.

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(F) DECISION: EXHIBIT 19 179In determining the authenticity of Exhibit 19 the starting point remains throughout that the legal onus of proof is upon the defendant and further that the standard of proof which the defendant is required to meet in its allegation that the plaintiff fraudulently created, alone or in conjunction with another, the document is the Briginshaw standard: Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. In the well-known passage by Dixon J (as his Honour then was) at 362 it was stated: "[R]easonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by indefinite testimony, inexact proofs or indirect inferences." See also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171. 180It is, of course, commonplace in criminal proceedings that the guilt of an accused person or the facts from which guilt may be inferred are unable to be established by direct evidence but may be established circumstantially. In the present case, the question of the fabrication of Exhibit 19 can only be established by proof of facts and circumstances from which the fact to be proved can be established as a matter of inference. 181When circumstantial evidence is relied upon the application of a different standard of proof means no more than that, whereas in the criminal context, the inference to which the proved facts or circumstances give rise may not be drawn unless the inference of guilt is the only one available. When the civil standard of proof (albeit applied in the way declared in the High Court in Briginshaw) is the relevant standard - all that is necessary is that the proven circumstances raise a more probable inference in favour of what is alleged. See Luxton v Vines (1952) 85 CLR 352. In that case, the High Court stated (at 358): "The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude the reasonable hypotheses consistent with innocence whilst in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort while direct proof is not available, it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference; they must do more than give rise to a conflicting inference of equal degrees of probability so that the choice between them is a mere matter of conjecture. But if the circumstance are proved in which it is reasonable to find the balance of probabilities in favour of the conclusion sought, then, though the conclusion may fall short of certainty, it is not to be rejected as mere conjecture or surmise." 182The evidence raises as a more probable inference, that Exhibit 19 was created in 2005 or 2006 either by or at the request of the plaintiff. The evidence I consider gives rise to a strong inference, and not one of equal probability, that the document was not authentic. Those circumstances, taken together, are not, in my opinion, based on indefinite testimony, inexact proofs or indirect inferences but upon circumstantial evidence which strongly points to the conclusion that Exhibit 19, is not an authentic document. I am, accordingly, satisfied that the defendant has discharged the onus of proof to the required standard and has established that Exhibit 19 was a false document. 183In so concluding, I have not overlooked the possible significance of the plaintiff's evidence as to his claimed receipt of cash earnings he said he received whilst working at Blue's Point Café. I accept that he may well have been partly paid in cash in the 2002 tax years (and quite possibly in earlier years). Equally that may provide an explanation for his attempt to provide written proof of earnings that exceeded award earnings. However, the fact remains that there is no means available to properly determine the actual level or amount of cash earnings he may have received other than by his evidence and that of Ms Mowad. Even if unrecorded cash earnings could provide an explanation as to why the plaintiff set out to create or have created the revised payment summary, Exhibit 19, that does not advance his position. I consider Ms Mowad, whose evidence is discussed below, to be an unreliable witness. In summary, the evidence does not enable an assessment to be made as to the level of any cash earnings, if any, that the plaintiff may have received prior to the subject accident.

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(A) THE PLAINTIFF'S EVIDENCE 184In the first hearing, and subsequently, the plaintiff relied, as evidence of his earning capacity whilst employed with Jet Café, upon the two-page document (marked "Exhibit G") bearing date 15 December 2002 and signed by him on 16 December 2002 (see Blue AB 1, 189-191). 185It was put to the plaintiff in cross-examination that the "Employment Agreement" was not an authentic or a genuine agreement. The plaintiff's evidence was to the effect that the agreement was genuine: (T 7 August 2012, at p 136, lines 5-10). 186It was also put to him: "Q. You signed it but years after you had finished employment at Jet Café didn't you? A. No. Q. I want to suggest to you, that you either created this document yourself or created it with some other person or persons? A. No, your Honour. Q. And that it is simply a fake, so far as being an employment agreement is concerned? A. No. Q. I want to suggest to you that the document was never signed by Ms Mowad? A. No. Q. And you know perfectly well it was never signed by Ms Mowad? A. No. ... Q. Do you say on oath that Ms Mowad signed this document? A. Yes." (T 7 August 2012, at p 136, lines 16-45) 187The terms of the document were as follows: "December 15th 2002 RE: Your Employment at QBD Jet Café Position: Chef / Floor Supervisor Dear John This letter sets out the terms on which you are offered employment with Kahve Pty Ltd t/a QVB Jet Café. Your conditions of employment will be regulated by the provisions of this letter. Your employment will also be governed by applicable provisions of the Restaurant, & Employees (State) Award as varied from time to time. The Award is, however, not intended to form part of your contract of employment. You will be employed on the basis that the first three months will be a probationary period. You will be employed as Floor Supervisor and having regarded [sic] to your work arrangements you will be classified as Grade 6 Maitre D for the purposes of the award. You will report to Tony Mowad. The salary you are paid is for all ordinary hours, penalty rates, overtime, and allowances due under the award. Hours of work Your ordinary hours of work will be average 50hrs Monday to Sunday inc Public Holidays. Remuneration You will be paid $25 per hour. Commencement You will commence your employment with the company on 02/01/2003. Variation The terms of employment contained in this letter may be varied by 7 days notice of the variation being given to you in writing. No variation can be made which is contrary to the award. Superannuation Superannuation will be paid to ING Superfund on your behalf at the rate of 9% of your gross salary. Termination Termination of this appointment will require notice of 14 days notice by either party; however in the case of serious misconduct no notice is required. Please sign the attached copy of this letter and return it to me no later than 23/12/05 if you wish to accept employment with us on the terms offered. The attached job description contains a description of your duties in the position as discussed. Please sign the copy and return it with your acceptance. Yours faithfully, Antoinette Mowad Director QVB Jet Café 188The following matters are noted about the document: (i) The employment position is recorded as "chef/floor supervisor". It was common ground that the plaintiff was not trained as, nor employed as, a chef. (ii) The document stated that the plaintiff was to be employed as a "Floor Supervisor" and that he was to be classified as a Grade 6 "Maitre'D" for the purpose of the award. The plaintiff was not employed as a maitre'd. (iii) The ordinary hours of work were stated to be an average of 50 hours, Monday to Sunday inclusive of public holidays. The remuneration is specified to be $25 per hour. Accordingly a 50-hour week at that rate represented weekly remuneration of $1,250 gross per week. Remuneration expressed at an hourly rate of $25 is not consistent with the remuneration provisions in the relevant State industrial award. The "agreement" provided: "... your employment will also be governed by applicable provisions of the Restaurant & Employees (State) Award as varied from time to time". (iv) The employment was expressed to commence on 2 January 2003. The plaintiff's evidence was that he commenced work in December 2002. (v) The penultimate paragraph required the document to be returned, signed, not later than "23/12/05". Plainly, that post-dated the commencement of employment by approximately three years. 189Whilst the agreement was signed by the plaintiff, there is an issue as to it having been signed on the date expressed, namely 16 December 2002. The defendant insurer's position was that it was executed on a much later date, some time in 2005 or 2006. In that respect it relied in particular upon the notation referred to in (v) above as indicating an execution date of or after 2005. 190The document purported to have been signed by Ms Mowad on the same date. In fact it was not signed by her at all. The question as to who did sign it introduced the possibility that, the floor manager of the café, Mr Charles Armstrong, executed it using Ms Mowad's name. The evidence of Ms Mowad was to the effect that it had probably been signed by Mr Armstrong. In that event, it would usually be expected in such circumstances that the agreement would have been signed "on behalf of" or "for or on behalf of" Ms Mowad. 191Ms Mowad was cross-examined on the matter: "Q. As at December 2002, who did the hiring and firing at the café? A. As a rule, for the general wait staff employees, it would be Charles Armstrong. Q. In December 2005, who did the hiring and firing? A. I don't even know if Charles Armstrong was still there in 2005. Q. If he wasn't? A. It probably was me because I came back to work at Jet once Bronk had finished, yes. And I have been doing this up to today. Q. Just looking at the document again, 189? A. Mm-hm. Q. This document offers employment to Mr Checchia. Amongst other things, it specifies what his position will be, what his hours will be or average hours, what rate he will be paid. Over the page, the date upon which employment will commence. Do I take it those matters would be determined by either yourself or some authorised person? A. Yes. Q. That is, to set the rate, set the hours, and so on? A. Yes. Q. Point of classification? A. I think at the time the book-keeper would have asked me or asked Charles. Q. But the book-keeper didn't do the hiring and firing? A. No, she would have processed the letter only. Q. I see. Are you saying that Mr Armstrong, if he hired somebody, he would have autonomy as to what terms and conditions would be set? A. The discussion, Charles would definitely speak to either Tony or myself at the time. Q. Tony being? A. My husband. Q. Your husband? A. Yeah. So, you know, it would be, yes. Q. So he didn't have autonomy to determine-- A. No. Q. --things like call in raised rates and hours and-- A. He would - he would - he would be aware of them, and he would - he would know. That's why we use someone like Charles because of his background in the restaurant industry, so. Q. I am not dealing so much with his awareness of rates, but what is to be given as an offered rate to a prospective employee? A. No, Charles would come to me first, and we would - we would discuss this prior, yes. Q. The letter at 189 to 190 purports to be a letter by you as director? A. Yes. Q. It doesn't say signed on behalf of or for or on behalf of, or anything of that kind? A. I know, it doesn't Q. So representing this is you in the capacity as director being the author, is that right? A. Mm-hm. Q. And what was the position, do you know, did you have a practice as to if somebody signed a letter on your behalf, would they sign as you or on behalf of you or what? A. Well they - yeah, they shouldn't, but I have seen it happen before. But that's, you know, I would have - I would have had to have given direction for them to do my signature. But it should show, for, it shouldn't - yeah. REWELL: I just have one more question, if I could, you Honour. Q. So far as you are concerned, there is no difficulty finding Charles Armstrong at the moment, is there? A. I don't have his phone number, but he drops in every other week. Q. And he lives in Earlwood? A. Yes. Q. And he runs a café? A. No, he has given up café-ing. I think he is renovating his house. But he bought his own café, that's why he left us. Q. But certainly, you would have no difficulty in providing his details to someone if they asked for them? A. What sort of details would you need? Q. His phone number, for example? A. No, I don't have his phone number, no. Q. If someone asked you to locate him, it wouldn't take you very long seeing that he calls in every other week, would it? A. Well, when he visits me next, yes. Q. Which he does regularly? A. Yes. No-one has asked me that question before." (T 303) 192The plaintiff was taken to the "Employment Agreement" (Exhibit G). It was pointed out to him that although it was dated 15 December 2002, it was in fact said to have been signed on 16 December 2002 and he acknowledged that his signature was on it. He also said that it appeared that Ms Mowad had signed the document. It was put: "Q. You know that is not her signature, don't you? A. That is her signature to me. I don't - that is what it says there." (T 6 August 2012, at p 88, lines 30-40) 193He said that he could not remember whether he and Ms Mowad sat down and signed the document together although he said that they probably did. He said that she could have signed it in front of him, that she could have signed it while he was in the bathroom, but that he could not recall the specific day upon which it was executed: (T 89, 20-25). 194He stated that the reference to "chef" on the employment was probably a "printing error": (T 89, lines 45-47). It was put to him that he was not a "floor supervisor". He agreed to that: (T 89, line 50). He later said, however, that he was a supervisor: (T 91-2). 195In cross-examination, it was put to him, in effect, that he had not performed the work of a supervisor. The plaintiff said that his position at Jet Café was that of "café supervisor". It was put to him that in fact his work was waiting on tables. Whilst he agreed that that was part of his job description he said it did not cover other duties that he performed overall as a supervisor. It was put that a primary part of his work was waiting on tables in the main dining room which the plaintiff rejected and said he was "in general supervising and making sure everyone was under control outside as well ...": (T 6 August 2012, at p 84-50). 196The plaintiff was cross-examined at some length as to the range and nature of his duties. The cross-examination was directed to establishing the proposition that the plaintiff was not in fact a "Floor Supervisor" as stated in the so-called "letter of agreement". It was put to him that he did not do the floor manager's work and that he was not in charge of the staff roster and that he was not in charge of ordering stock and other product: (T 6 August 2012 at p 85). It was also put that he did not do the administration work with which the plaintiff agreed: (T 85, lines 40-42). 197It was put to the plaintiff that the job of floor manager was held by Mr Charles Armstrong. The plaintiff agreed but said that when he was not there he would take that duty on himself. The plaintiff agreed that Mr Armstrong was present five days a week, although he said that he was mainly there in the afternoons: (T 86, lines 10-15). 198It was put to him that it would be fair to describe his duties as "senior wait person or waiter". The plaintiff said that the position of supervisor was more apt to describe his responsibilities: (T 86, lines 20-25). 199It was put to him that he carried out his ordinary duties as a waiter in the months of February, March and April 2003. The plaintiff said that he was "restricted a lot": (T 86, lines 40-42). It was also put to him that after the accident his hours of work were not restricted. The plaintiff said that they were: (T 86, lines 25-50). 200Although the "Employment Agreement" provided for a potential remuneration as high as $1,250 gross per week, it was put to him that he never said that he was earning that amount: (T 90, lines 20-35). The plaintiff responded that though the agreement provided for an average of 50 hours if he was doing less than that then he would not be earning $1,250: (T 90, lines 35-45). 201It was then put to him that there was nothing in the agreement which suggested that he would work less than 50 hours and work his way up to that number: (T 91, lines 10-20). He stated that the idea was to increase up to 50 hours a week. 202Although the agreement provided for a probationary period, there was nothing in the document to suggest that he would be paid any less in the initial three month period. The plaintiff responded that it was a document which was used with a lot of staff and that a figure would then be negotiated. There was no particular discussion as to the exact number of hours he would initially work: (T 91, 45-92 line 5). 203It was then put to him that he was in fact paid, not in accordance with the terms of the "Employment Agreement" but in accordance with the award referred to on page 1 of the agreement: (T 92: 1-10). He replied "I am not sure, sir". 204Contrary to the date in the agreement, it was put that he did not commence on 2 January 2003, but commenced on 20 January 2003. The date 20 January 2003 was recorded in a PAYG Payment Summary for the year ended 30 June 2003 issued by Kahve Pty Ltd as payer. In relation to the entry on that document "period during which payments were made" appears the entry 20/01/2003 (Blue AB 1, 196). 205The plaintiff's evidence was that prior to 2 January 2003 he attended at the café: "... a couple of times and did a few days just to get familiarised with the place": (T 6 August 2012 at 92, lines 25-30). 206The plaintiff's attention was drawn to the date on page 2 of the "Employment Agreement", namely, 23 December 2005, as the date for the return of the signed the Agreement. He said that he had not noted that date until giving evidence: (T 93, lines 15-20). He said that he did not know whether it was a typographical error. It was then put to him: "Q. Well, this document was created in either 2005 or 2006, wasn't it? A. You have got the 2003 up the top there 2002 signed and then you have got 2002 on 15 December so it could be a typing error. Q. It could be. By whom? A. I'm not sure. Q. Did you type this document? A. No. Q. Did you collude with someone else in the creation of this document? A. No, sir. Q. This document is just a complete fake, isn't it? A. No. Q. Produced years after December 15, 2002? A. No. Q. Produced solely and deliberately for the purpose of advancing your claim against NRMA, isn't that right? A. No, sir." (T 6 August 2012, at p 15-50). 207The plaintiff's attention was then drawn to the copy of the document which showed a logo on the first page. It was put to him that letterhead used at Jet Café at the time did not have such a logo. The plaintiff disagreed: (T 94, lines 30-35). 208He was asked whether he had any explanation as to the shadow of a rectangle that appeared around the motif or logo Jet Café at Blue 1, 189. The plaintiff said it could have been a pattern in the background. 209It was put to the plaintiff that the letterhead that was in use at the café at the time of the "Employment Agreement" was that shown on a letter written on 27 December 2002 at Blue AB 1, 195, namely: "KAHVE PTY LTD Trading as QVB JET Shop G55 York Street, Sydney NSW 2000 Telephone 9283 5004: 210It was put to Ms Mowad that Mr Checchia could have got hold of the letterhead. She stated that anybody could have: (T 278, lines 30-40). 211As the evidence established that Mr Armstrong's whereabouts were known the defendant contended that the failure to call him provided a basis for a Jones v Dunkel inference against the plaintiff.

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(i) Exhibit G 212Ms Mowad was called in the plaintiff's case: (T 27 August 2012, pp 257-311). 213She was cross-examined on the document Exhibit G. She said that she did not personally create the document: (T 258, lines 49-50). 214Ms Mowad subsequently again said that she did not have anything to do with the creation of the document: (T 258-259). She said that at that time she was extremely busy so that her head manager, Charles Armstrong, would have probably overseen, with her bookkeeper, such matters: (T 259, lines 1-6). 215She said that she did not know who created the document: (T 259, lines 5-10). She agreed that she had been questioned about the document some six years ago, but that she had a bookkeeper at the time and that she was no longer with the business and that "... she would have probably prepared something like this ...": (T 259, lines 10-16). 216Ms Mowad said that Mr Armstrong presently lived in Earlwood and had had his own café for a time but that she thought he had since retired: (T 260, lines 40-45). 217Ms Mowad said that the signature on page two of the "Employment Agreement", which was in her name, was not signed by her: (T 261, lines 10-15). 218It was put to her: "Q. May we assume you don't know who did? A. I don't mean to guess but I'm saying Charles would have. Q. Is that a guess? A. Well no, actually it would have to be Charles because there wouldn't be anybody else there to have the authority to sign on my behalf. Q. Do you remember authorising Charles to sign this document? A. This particular one? Q. Yes? A. Off hand, no I don't recollect. Q. Do you remember anyone bringing this document to your attention at all before the litigation concerning Mr Checchia? A. Look, this is a standard document that we did use and that's all I can say. (T 26, 27 August 2002, p 261, lines 10-30) 219Ms Mowad was asked as to the letterhead in use at the time (2005) and she was taken in particular to pages 194 and 195 of Blue Appeal Book vol 1: (T 267, lines 5-10). She acknowledged that both documents had been signed by her on 26 February 2001 in respect of p 194 and on 27 December 2002 on page 195: (T 267, lines 10-20). They had a different letterhead to that appearing on the Employment Agreement. 220It was put to her that the letterhead on those pages was in fact the letter of Jet Café at the time the plaintiff was employed. Ms Mowad said those pages constituted a letter from her to her landlord. She said it was on different letterhead and was a very personal letter. It was put to her that the "artwork" being the logo on the Employment Agreement was not used until at least 2005 (Blue AB 1, 267:45-50). Ms Mowad responded that she had used lots of different artwork and they changed over the years. 221She later qualified her earlier evidence as to the accessibility of the letterhead at the café by saying that the stationery would not have been at work but in her home office. She was asked whether she gave a copy of the letterhead to Mr Checchia and she denied that she did so. She stated that the bookkeeper worked from her home and the bookkeeper would have had to have asked her if she wished to give a copy of the letterhead to the plaintiff: (T 279, lines 25-40). 222She said that the bookkeeper was the only one who had access to the computer letterhead template: (T 28, lines 1-5). 223She said that she did not consider that any of the paperwork was at work and there would have been no reason to have a blank letterhead at the workplace: (T 280, lines 10-15). However, when asked whether Mr Armstrong had access to the letterhead she replied that he would have had to have asked the bookkeeper, but that he could have asked for it directly: (T 280, lines 15-20). When it was put that the plaintiff could also have made such a request she agreed, but that Mr Armstrong did all of the administration at work.

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(C) SUBMISSIONS FOR THE PLAINTIFF ON THE EMPLOYMENT AGREEMENT (EXHIBIT G) 231In the written submissions for the plaintiff, at [80], it was contended that the "Employment Agreement", is a genuine document. The submission relied, in part, upon Ms Mowad's evidence for the proposition that the letterhead and logo used in Exhibit G was in use in 2002. It was contended that copies of letters at Blue AB 1, 194-195, were examples of correspondence employed in various business communications. The letterhead on those documents differed from that on Exhibit G. The submission was that the plaintiff and Ms Mowad should be accepted as truthful in relation to the Agreement. 232Exhibit G, it was submitted, was in the form of a template that had been in general use. The person who had produced the document, it was submitted, had done "a poor job in relation to proof-reading the documents ...": Plaintiff's Written Submissions at [81]. The bookkeeper whose job it was to adapt the template for particular employment contracts was not a solicitor or a highly sophisticated commercial person. The document, it was contended, had been prepared "in a clumsy way": at [81]. 233It was further observed that the letterhead for the template used on the Employment Agreement was located at Ms Mowad's home and not in an accessible place at Jet Café where the plaintiff could lay his hands on it: at [81]. 234The submission for the plaintiff was that the Agreement was probably signed by Mr Armstrong and that there was no reason to believe that anyone would, after so many years, have any recollection as to who signed Exhibit G: at [82]. 235It was also submitted that it would be wrong to conclude that both signatures had been placed on the document at the same time with both parties present. 236The form of Exhibit G, it was argued, contained the sort of information that would be appropriate in hiring the plaintiff - an hourly remuneration ($25); a provision as to the plaintiff's ordinary hours of work (on average); the commencement date for his employment, as well as other matters including superannuation and termination provisions. It was submitted that the evidence of Ms Mowad supported the inclusion of all of these matters in Exhibit G. It was contended that it was irrelevant that the word "chef" was left in the heading. The template was obviously one which contained standard provisions for use when engaging senior staff. The bookkeeper had left in a number of standard paragraphs, some of which were inapplicable or otherwise not an important part of the agreement. An example was said to be the inclusion of a probationary period of three months which it was said was unnecessary. All employments, as Ms Mowad stated, were subject to termination at an early stage if they were not satisfactory. 237It was further submitted that it was not appropriate to draw adverse inferences against the plaintiff or Ms Mowad in relation to Exhibit G by reason of its bad composition based on a template. 238As to the failure to call Mr Armstrong, it was submitted that he could scarcely be expected to give useful evidence in relation to a relatively routine matter occurring 10 years ago in circumstances when he was acting on Ms Mowad's instructions to have the plaintiff sign the Employment Agreement: Plaintiff's Written Submissions at [84]. 239As Mr Armstrong had numerous responsibilities and hired and fired numerous staff, it was submitted that there was no reason why he would be expected to bring to mind, so long after the event, a relatively routine matter such as the plaintiff signing a document when Ms Mowad had already informed him about the agreement reached between the plaintiff and herself as to the relevant amounts as set out in Exhibit G. Ms Mowad had given evidence that she agreed with all the relevant terms with the plaintiff and gave instructions for the document to be signed, including on her behalf. 240She acknowledged that it would have been preferable for Mr Armstrong to have signed Exhibit G "on behalf of Ms Mowad". However it was said he was not a solicitor familiar with documents but was merely a manager in a café. Ms Mowad acknowledged that it was most likely Mr Armstrong who signed her signature. 241The defendant attacked Ms Mowad's credit being a person who, on her evidence, was prepared to pay the plaintiff half of his remuneration in cash demonstrating a willingness to assist him to defraud the ATO and benefiting herself in doing so. It was submitted that this damaged her credit. 242In addition, the defendant observed that Ms Mowad admitted to having "a second set of books" in connection with cash payments made to staff, including the plaintiff, employed at Jet Café. However, she said that the second set of books were "not available": (T 289.02). It was submitted that it was obvious that although she said she did not know whether the books had been destroyed or not, it was clear that she did know: Defendant's Written Submissions at [73]. 243Ms Mowad agreed that she had been subpoenaed to produce all documents in her possession in connection with the plaintiff's employment, but that the only documents produced were the 2003 PAYG Payment Summary and three deposit slips recording payments of $409 each into the account of the plaintiffs' wife. The "second set of books" was not produced: Defendant's Written Submissions at [75]. 244The defendant also relied upon the reference in the employer's Report of Injury signed by Ms Mowad on 7 May 2003 to the fact that the plaintiff's employment was covered by an industrial award. She said that she did this to "cover her tracks", that is in order to provide an explanation as to why the wage payments to the plaintiff "on the books" were so low. Her statement to that effect was said to have adversely impacted on her honesty. 245The defendant submitted that the fact that she was willing to mislead the workers compensation insurer in this way damaged her credit: Defendant's Written Submissions at [79].

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(D) CONSIDERATION 246The defendant, of course, has the onus of proof in establishing, to the requisite standard, that the Employment Agreement was not an authentic document and was created either by the plaintiff or by another at his request in order to manufacture evidence to establish a level of earnings consistent with the terms set out in the Agreement. 247Although the trial judge, in the first trial, determined that Exhibit G was a genuine employment agreement, his Honour largely based the finding in that respect upon his acceptance of the evidence of Ms Mowad. In determining the trial judge's finding that Exhibit G was genuine, the Court of Appeal determined that his Honour's reasoning in that respect was affected by error. This conclusion, at least in substantial part, was based upon conflicting evidence in contemporaneous documentation. In the judgment of Beazley JA the following matters were identified: (i) It was accepted that Ms Mowad had not signed Exhibit G. Her evidence was that the signature on the document was that of Mr Armstrong, Jet Café's manager whom she said was authorised to sign such a document on her behalf. However, as Beazley JA noted: "... there was no apparent reason for him signing this letter in her name if he had authority to sign in his own name. Mr Armstrong was not called as a witness." (at [129]) (ii) The PAYG Statement issued to the plaintiff for the year ending 30 June 2003 showed gross earnings of $5,500. Ms Mowad agreed that that figure was accurate (see Exhibit 33). Beazley JA noted that this was only consistent with earnings of $409 per week: (at [133]). (iii) The employer's Report of Injury Form contained conflicting entries. In it, Ms Mowad had represented that the plaintiff was employed under the State Restaurant Employees' Award at a classification of Grade 2. Ms Mowad was unable to explain why she had inserted these details, other than saying: "But you know, this is a form." However, as Beazley JA observed, it was a form in which she declared the truth of the information provided. (iv) Exhibit G was inconsistent with the evidence of the first payment in the amount of $409 made to the plaintiff on 20 January 2003. However, Exhibit G stated that the plaintiffs' employment was to commence on 2 January 2003. The PAYG Statement, Exhibit 35, signed by Ms Mowad specified 20 January 2003 as being the date of the first payment. The Employer's Report of Injury Form stated the date upon which the plaintiff was employed was 9 January 2003. It was observed that if 9 January 2003 was the commencement date that would make the PAYG Statement correspond with a weekly salary of $455.30 gross per week from 9 January 2003 to 10 April 2003 (date of cessation of work): (at [135]). The inconsistency in the commencement date specified in Exhibit G was another factor pointing against the document being a genuine one. (v) In relation to the weekly payments of $409 made to the plaintiff, in the first trial, the plaintiff sought to explain those payments by saying that prior to the accident, he was paid in cash in the amount of $750 per week as he was undergoing a probationary period. After the accident he could not work as many hours and the salary of $409 per week reflected remuneration for those reduced hours. The documentary evidence established that the payments of $409 commenced prior to the accident, but Ms Mowad's evidence at the first trial was that employees were not paid in cash. Further, it was observed that she did not give evidence in that trial of the fact of any probationary period operating: Beazley JA at [139]. (vi) The date on Exhibit G, 23 December 2005, being the date by which the plaintiff was supposedly required to return a signed copy of the letter if he wished to accept the employment on the terms offered pointed to the document having been created after the employment had ceased. Beazley JA, at [143], noted "... the reference to a 2005 date supports an inference that the letter was brought into existence at a later point in time than the date of its alleged execution." (vii) There had existed a relationship of friendship between Ms Mowad and the plaintiff. Whilst she had been subpoenaed on several occasions in relation to the first trial to provide documents relating to the plaintiff's employment, Exhibit G (or a copy of it) was not produced from her records. It was produced by the plaintiff. As noted: "... it is curious, to say the least, that a copy of Exhibit G signed by the Respondent was not produced by Ms Mowad": (at [145]). (viii) On analysis of the evidence in the first trial, it was observed that the plaintiff's PAYG Statement issued by Ms Mowad, the Employer's Report of Injury Form signed by her, and the bank deposits of $409 per week, were not consistent with Exhibit G. As there noted: "... in fact, the documents she produced (Ms Mowad) and Exhibit G are not reconcilable ..." (at [146]) (ix) If Exhibit G was a genuine document, then the PAYG Statement, the banking records and the Employer's Report of Injury Form were false documents: at [148]. Alternatively, the PAYG Statement, the banking records and the Report of Injury Form were correct thus then Ms Mowad had not paid the plaintiff the contract wages to which he was entitled before or after the accident. 248The evidence relevant to the document and its authenticity came principally from the plaintiff and from Ms Mowad. As discussed earlier, the evidence establishes, in all probability, that the signature on it in Ms Mowad's name was that of Mr Armstrong. 249The issue as to the authenticity of Exhibit G is to be evaluated having regard to the evidence of the plaintiff and Ms Mowad and the contents of the document itself. I have earlier identified the inaccuracies or misstatements and conflicting statements (eg, the application of the Restaurant and Employees (State) Award as against the remuneration provision based on a flat rate of $25 per hour stated in the Agreement). The plaintiff's contention in submissions was, in effect, that these merely reflect the lack of knowledge or capacity of the person responsible for using what was a template document. 250The contention for the defendant was that the Employment Agreement (Exhibit G) was a concoction and that the evidence indicated that it was probably created in 2006 for the purpose of advancing the plaintiff's damages claim. 251The Employer's Report of Injury form signed by Ms Mowad dated 7 May 2003, was evidence in conflict with remuneration to be paid to the plaintiff in accordance with the Employment Agreement. In answer to s 6 of the report, Award Information Ms Mowad ticked the "No" box in answer to the question "is the worker employed under an Award ...?" but that she then recorded that he was employed under a State award identified as the "Restaurant & Employees Award", Grade 2. A copy of the relevant State award (Blue AB 1, 218-238) records in clause 3.1.2: "GRADE 2 is an employee who is primarily engaged in one or more of the following: ... undertaking general waiting duties of both food and/or beverages including ..." 252In the first trial Ms Mowad was cross-examined to the effect that she had incorrectly ticked the "No" box in the Report of Injury form. She stated that she intended to imply that the respondent was employed under the State award but she asserted that she had correctly ticked the "No" box and did not know why she had inserted the rest of the information. 253The entry made in the Report of Injury form by Ms Mowad insofar as it provided specific details of the award and award classification that applied to the plaintiff, is , as stated above, clearly evidence that is inconsistent with the Employment Agreement to the extent that the Agreement specified the plaintiff's remuneration at a flat rate of $25 per hour. 254The monetary rates specified in the award, Part B, are cross-referenced to Table 1 - Wage Rates, set out as part of the award. Remuneration is prescribed on the basis of weekly wage not an hourly rate. Grade 2 specifies remuneration in terms of a weekly wage of $455.30 gross per week as at the relevant time (or $409 net per week). 255Accordingly the inconsistency between the basis for the calculation of remuneration as specified in the Employment Agreement and the entitlement under the award as identified by Ms Mowad in the Report of Injury, is a relevant matter to be considered in determining the authenticity of the Agreement. 256In the first trial, Ms Mowad sought to explain her reference to the State award in her report by saying that it was merely a form to be completed. As earlier discussed, she said this was simply to "provide cover". Having heard and observed her give evidence, Ms Mowad did not impress as a witness. I consider that she had a tendency to respond to answers in a manner which was either designed to assist or favour the plaintiff or to deflect the question by non-responsive answers or resort to a lack of recollection. 257The payment of the plaintiff's remuneration commencing with the first payment at the rate of $409 net per week over 11 weeks up to April 2003 is further evidence that is inconsistent with payments having been made under the provisions set out in the Employment Agreement. There are other unsatisfactory aspects. In particular, the Agreement specified the commencement date of 2 January 2003. However, there are conflicting dates in the evidence as to the actual date that the plaintiff commenced at the Jet Café. The PAYG Statement (Exhibit 35) signed by Ms Mowad specified the commencement date as 20 January 2003. In the Employer's Report of Injury form Ms Mowad stated that the plaintiff was employed on 9 January 2003. In the event that the employment did commence on 9 January 2003, that would make the PAYG Statement correspond with a weekly salary of $455.30 gross per week in the period 9 January 2003 to 10 April 2003. 258There is no basis in the evidence to establish that the plaintiff may have commenced work as early as 7 January 2003 and was then paid on the fortnightly basis, thus explaining the date 20 January 2003. The evidence rather points to the fact that the plaintiff was paid on a weekly basis. 259There was an attempt made to explain the weekly payments of $409 on the basis that they only represented part of the total amount paid each week and that the balance, totalling $750 per week was paid in cash. Evidence by the plaintiff and Ms Mowad was given to support the proposition of a partial payment of weekly wages in cash. 260As I have earlier stated, it is quite possible that the plaintiff was paid cash amounts at various times during the period of his employment by the Jet Café. However, there is no evidence as to the frequency with which any such cash payments were made nor the amount. The amount paid and banked to the plaintiff's wife's account may be seen as consistent with the payment of an award rate by way of a net weekly wage. Whether or not the plaintiff was paid the difference between that amount and $750 per week is a matter that the plaintiff has not proved to the required standard, (on the balance of probabilities). Ms Mowad stated that she had kept a second book which recorded cash payments but that book, according to her evidence, no longer exists. Again the unreliability of her evidence renders her account of a written record of cash payments extremely doubtful.

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(ii) The 2003 Injury 273In relation to the subject accident occurring on 21 January 2003, Mr Roberts noted that there were conflicting histories as to when the plaintiff first noticed back pain. Following the subject accident he first consulted his general practitioner for treatment on 27 March 2003 and was subsequently admitted to Concord Hospital on 9 April 2003. 274Mr Roberts noted that the plaintiff had no time off work immediately following the accident but subsequently had two weeks off work during which time his symptoms did not improve. 275The Opinion recorded the history of investigations and surgical intervention for treating what was diagnosed as a prolapse disc at L4/5 level (at [30] to [49]). 276Mr Roberts reviewed the various medical opinions as expressed in the medical material that was available as at 20 October 2006 (at [50] to [80]) 277He observed that the plaintiff had been assessed as having a whole person impairment of 25%, even though the doctor who so certified (Dr Ryan) did not know about the 1993 injury. Mr Roberts expressed the view that, notwithstanding, he considered that the plaintiff would be entitled to an award for non-economic loss (at [81]). Mr Roberts expressed the opinion that having regard to the plaintiff's age, the nature of injury and the severity of his ongoing symptoms, including associated depression, and other loss of amenities of life, that an award of between $220,000 and $250,000 for non-economic loss would have been appropriate. 278Mr Roberts then proceeded to assess all other heads of damage and determined a settlement range of between $718,000 to $956,000 (in round figures). He summarised his assessment at [124] as follows: Non economic loss $220,000 $250,000 Future out-of-pocket expenses $56,315 $86,720 Past loss of earnings $70,253 $70,253 Past superannuation loss $7,728 $7,728 Future loss of earning capacity $199,130 $316,511 Future superannuation loss $21,904 $34,816 Past gratuitous assistance $27,732 $35,410 Future care $115,000 $155,000 TOTAL $718,062 $956,438

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279Mr Roberts noted that to these amounts needed to be added an amount for past medical expenses (which had been agreed at $149,000) and the amount of tax which was to be deducted from weekly payments of compensation (subsequently agreed at $15,000). 280Mr Roberts observed, as noted earlier in this judgment, that the plaintiff's failure to disclose his prior injury could hardly have been the result of forgetfulness and that it was a matter that would go only to his credit: Opinion at [129]. He noted "for settlement purposes his failure to disclose his prior injury could have been put to some advantage by NRMA" (at [130]). 281He concluded, at [131]: "Accordingly, I have reduced the mathematical results referred to in paragraph 124 above and advise that in my opinion the recommended settlement range as at 20 October 2006 was between $610,000 and $820,000, plus out-of-pocket expenses." 282In his Supplementary Opinion dated 2 August 2012, Mr Roberts noted that in his letter of instructions (Annexure "A") he was asked to assume 5 additional matters. Three documents were referred to (the plaintiff's CARS Application, the PAYG Payment Summary for 2002 and the "Employment Agreement". He noted that it was clear that the PAYG Payment Summary and the Employment Agreement were provided to support the plaintiff's claim for economic loss. In paragraph [10] he stated: "The latter 2 documents were forgeries. On their face, each suggested that the plaintiff's pre-injury earnings were significantly in excess of what he was in fact earning." 283Mr Roberts then set out the effect of the additional matters on his opinion. In paragraph [12] he stated: "In my opinion had NRMA been aware of the additional matters as at 20 October 2006 the recommended range for settlement would have been significantly reduced from that which I arrived at in my earlier opinion." 284Mr Roberts stated, at [13]: "The extent of the reduction could not, in my opinion, be expressed as a percentage although, as it happened, the reduction that I made in paragraphs 124 to 131 of my earlier opinion did, coincidentally, amount to 15% of the projected range of damages." 285He further observed that if the additional matters had been proved then whoever determined the plaintiff's case (assessor or a judge) would regard all of the plaintiff's evidence with: "... considerable suspicion ... those parts of his damages that would have depended upon acceptance, by the decision maker, of his evidence would have been severely compromised. The amounts the plaintiff could expect to recover, at a hearing, for non economic loss, future loss of earning capacity and gratuitous assistance could have been significantly reduced below the ranges I initially suggested." 286Mr Roberts discussed each of the heads of damages and then stated by way of conclusion that the suggested range for settlement had been revised. As a result of the further assumed facts, the range he considered would be between $525,985 and $779,326 made up as follows: Lower Range Upper Range Non economic loss $200,000 $250,000 Future out-of-pocket expenses $45,000 $72,000 Past loss of earnings $70,253 $70,253 Past superannuation loss $7,728 $7,728 Future loss of earning capacity $157,902 $220,789 Future superannuation loss $17,370 $24,288 Past gratuitous assistance $27,732 $35,410 Future care $Nil $128,858 TOTAL $525,985 $779,326

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PART I - The Plaintiff's Level of Disability 289Given the adverse findings made against the plaintiff in relation to the specific matters dealt with earlier in this judgment, the question of the level of the plaintiff's impairment and incapacity (and the issue of his alleged exaggeration of symptoms) requires assessment of his level of disability by reference to the findings and opinions of the medical practitioners who have treated and examined him in the 2003-2006 period (and since that period). The plaintiff was under active treatment throughout the period 2003-2006 inclusive (and thereafter). In each of the years, 2003, 2004 and 2005, he underwent surgical procedures as discussed earlier in this judgment. In summary: 9 April 2003 - right L4/5 discectomy (Dr Parkinson); 2004 - laminectomy with decompression (27 January 2004) 20 November 2005 - laminectomies, L4/5 pedicle screw fusion. 290Surgical intervention itself produced complications. These included the development of post-operative granulation tissue causing further compression of nerve roots and pain: Report Dr Robin B Fitzsimons, neurologist, report - 10 March 2006: (Blue AB 3, 185). 291Dr Fitzsimons observed: "The physical findings of maximal impairment of sensation over the dorsum of the foot in the region of the great toe and on the lateral aspect of the calf is completely consistent with L5 radiculopathy, as is the selective impairment of foot dorsiflexion and eversion, as well as the impaired straight leg raising with pain made worse by foot dorsiflexion [nerve stretch]. The additional impairment on the medial side of the calf is consistent with L4 impingement ...". (Report 10 March 2006 at Blue AB 3, 1056). 292The physical findings made on clinical examination by Dr Fitzsimons are entirely consistent with the observations made earlier by Dr Parkinson when he examined the plaintiff on 7 May 2003. Dr Parkinson in that report observed: "Neurological examination on 7 May 2003 showed a man with typical L5 sciatica. His pain began in the right lateral buttock, radiated down the right lateral thigh, antero lateral shin and over the dorsum of the right foot and medial malleolus. He had paresthesia on the medial side of the right great toe and approximately grade 4/5 extensor Hallucius longus weakness with about grade 4/5 eversion on that side ..." 293He also observed in his report that the plaintiff had: "... typical findings of an L5 nerve root radiculopathy ..." (Blue AB 3, 46) 294Prior to performance of the third surgical procedure, Dr Parkinson consulted with Dr Peter Bentivoglio at St Vincent's Hospital who agreed that procedures by way of a decompression, discectomy and fusion were indicated. Dr Parkinson said that he explained the risks of nerve damage and recurrent pain and infection, CFS leakage, spinal instability and other risks that have been associated with degeneration at adjacent levels, particularly in the plaintiff as a young man. Notwithstanding the explanation of the risks and that regular physiotherapy and a pain management program would be required, Dr Parkinson observed: "He is very keen to proceed as he feels his pain is incapacitating to the point where he cannot live a useful life." (Blue AB 3, 1214) 295There is no medical evidence suggesting that the plaintiff was not significantly incapacitated at the time of contemplating surgery prior to each surgical intervention. His willingness to undergo spinal surgery for a third time points to a genuine level of significant disability.

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(A) THE EVIDENCE OF NAKHLE 296Dr Nakhle has been the plaintiff's treatment general practitioner for some years. In evidence-in-chief (Black AB 1, 355) he said that the plaintiff had been "totally co-operative" in relation to treatment and that his various complaints accorded with clinical findings on examination. 297Dr Nakhle said that the plaintiff had always been in pain though fluctuating: at Black AB, 2/368. He said that the plaintiff was in severe pain. 298In relation to the DVD surveillance material taken in September 2005, Dr Nakhle said that he considered that the plaintiff looked stiff and "... not comfortable with his movements": Black AB 2, 576. He did not consider that he was moving freely. He noted, "the way he is walking, carrying himself, the way he holds his back, the way he leans on things ..." (Black AB 2, 576). Dr Nakhle said that he always saw him in the DVDs as "walking in pain and just with a stiffness" (Black AB at 276). 299Dr Nakhle said, "all I know is every time he presented to me, he was in pain" (Black AB 2, 577). 300He said that he would not expect that the spinal fusion undergone by the plaintiff would have resulted in substantial relief from pain (Black AB 2, 584-5). He added: "... not necessarily. I mean he has had three operations on his back. There's a lot of scar tissue there" (Black AB 2, 585). 301Dr Nakhle in the lastmentioned report noted that the plaintiff had been in constant pain and for that reason he had been treated pharmacologically though he remained: "... in significant and severe lower back pain ..." (Dr Nakhle: report, 19 October 2006, p 1186). 302In that report, Dr Nakhle stated that the plaintiff's prognosis was very poor and that he remained "severely debilitated". He observed: "... I also believe that [the plaintiff's] capacity to work is severely limited by his pain. In short I cannot envisage that he will be working in the near to mid future. Even if [the plaintiff's] capabilities improve, I very much doubt he will ever be back to normal duties. I feel that would be completely unrealistic and improbable": (report 19 October 2006 at Blue AB 3, 1187).

[42]

(B) THE EVIDENCE OF DR ARUN AGGARWAL 303The plaintiff was referred to Dr Aggarwal, consultant physician, in neurology, rehabilitation and pain medicine, by Dr Parkinson in June 2003. Dr Aggarwal conducted regular examinations of the plaintiff throughout the years 2003, 2004, 2005, 2006 and 2007. His serial reports are contained in Blue AB 3, 907-957. Dr Aggarwal noted that the plaintiff had sustained a traumatic disc protrusion at L4/5 which was decompressed successfully in May 2003. However, subsequently he developed pain in the right buttock region radiating down to his knee. A follow-up MRI scan showed some granulation tissue in the right L5 lateral recess. 304Throughout the period 2003 to October 2006, the plaintiff had been treated by an extensive prescribed drug regime with multi antidepressants (Efexor, Lovan, Ciprimil) and narcotics (Edone, Oxycontin and Norspan). He was also treated with antiinflammatories and basic analgesia. 305Dr Aggarwal noted in each of his reports the plaintiff's symptoms and the prescription of pain medication over the years which included the drugs Gabapentin, Amitriptyline, Prozac, in addition to the abovementioned medications. 306Dr Aggarwal suggested that the plaintiff be referred to the Royal North Shore Pain Clinic (RNS). The plaintiff accepted his recommendation (Blue AB 3, 925). 307In March/April 2005 the plaintiff was admitted to the ADAPT Program at RNS though at that time was still taking 8 Endone tablets per day (Blue AB 3, 931). 308Dr Aggarwal noted that the plaintiff had completed the ADAPT Program at Royal North Shore Hospital on 29 April 2005 and that it had produced improvement in his overall level of function and pain management (Blue AB 3, 932). 309Following further surgery by Dr Parkinson on 21 November 2005, Dr Aggarwal noted that although there had been improvement in the left buttock pain post-operatively, he was still suffering significant back pain which was then being managed by a medication regime which included Amitriptyline and Efexor/XR amongst other drugs. He noted that at that time he was having difficulty sleeping at night and that the increase in his dose of Amitriptyline to 100mg at night resulted in little improvement (Blue AB 3, 937-8). 310In his report of 6 October 2006 to the plaintiff's solicitors, he noted that the plaintiff had developed what he referred to as a "Failed Back Syndrome" and that his symptoms had not responded to conventional medical treatment (Blue AB 3, 947). 311On 7 October 2005, the plaintiff required urgent review and was injected by Dr Aggarwal in the right L5/S1 region with a long acting local anaesthetic to try and improve his pain. A follow-up MRI scan of his lumbar spine showed a fluid collection in the right paracentral region around the L4/5 anterior epidural space which was impinging on the right L5 nerve region. He was admitted to Concord Hospital and reviewed by Dr Parkinson, which led to the further surgery and spinal fusion undertaken by Dr Parkinson and Dr Bentivoglio on 21 November 2005 at St Vincent's Hospital: Dr Aggarwal's report (Blue AB 3, 947). 312At Dr Aggarwal's suggestion, the plaintiff was admitted to Royal Prince Alfred Hospital for a five-day "Ketamine and Lignocaine infusion" which produced improvement in his pain (Blue AB 3, 951). The plaintiff thereafter was treated with increasing doses of Ketamine lozenges for a period. Subsequent reports from Dr Aggarwal in 2007 record periods of improvement and fluctuating back pain and level of function. He had commenced seeing a psychologist in October 2007. Dr Aggarwal suggested that he try Stilnox to assist him to sleep (Blue AB 3, 957).

[45]

(i) Dr Bowers 315The plaintiff was examined and assessed by Dr David Bowers, specialist rehabilitation physician, on behalf of the insurer. Dr Bowers produced reports dated 11 July 2006 (Blue AB 3, 961-968), 14 December 2006 (Blue AB 3, 970-971), 18 April 2008 (Blue AB 3, 972-973), 28 August 2008 (Blue AB 3, 974-975) and 19 September 2008 (Blue AB 3, 977). 316On the question of causation, Dr Bowers in his report dated 14 December 2006, attributed half of the plaintiff's complaints due to the accident in January 2003 and half due to the work accident of 1993. 317Dr Bowers in his report of 11 July 2006, detailed the history of the plaintiff's treatment, surgical procedures and findings on clinical observations. 318Although Dr Bowers noted what he referred to as "non-organic" contributions to the plaintiff's complaints, he did not suggest that the plaintiff's symptoms were not consistent with the underlying pathological condition in the lumbar spine, nor did he suggest any exaggeration of symptoms. His examination confirmed the plaintiff's lumbar spinal problems. He stated in that respect, "The physical examination confirms ongoing problems with the lumbar spine" (Blue AB 3, 967). 319Dr Bowers added, "his history of symptoms as at the present time is largely consistent with the other features of the medical case" (Blue AB 3, 951). 320In his report of 11 July 2006, Dr Bowers suggested that the plaintiff's pain would be lessened with treatment by a Ketamine infusion. Although he stated that the plaintiff had been variously fit and unfit for work as described in his report, he stated, "... he remains unfit to date" (Blue AB 3, 968). He went on to state that after completing a Ketamine infusion "... I would expect him to be able to return to suitable sedentary work for three-quarters of the normal hours expected until the usual retirement age". 321Dr Bowers also added that the hours required for domestic assistance would reduce after treatment with a Ketamine infusion. 322As noted above, the plaintiff in fact underwent a Ketamine infusion at the suggestion of Dr Aggarwal and was admitted to Royal Prince Alfred Hospital for such treatment. 323Although Dr Bowers does not refer to the detailed reports of Dr Aggarwal that followed the Ketamine infusion, it is clear that, although the infusion treatment did produce some benefit for a period of time the plaintiff continued with pain and loss of function and was reported as still being unable to sleep at night (Blue AB 3, 957). 324Dr Bowers assessed the care needs of the plaintiff as at the date of his examination on or about 11 July 2006. In that respect he observed: After the 2003 accident he would have required four hours per week domestic assistance until April 2003 when he had an exacerbation of back pain requiring an increase of eight hours per week domestic assistance for 3 months after surgery in November/December 2005. Since that time he has required six hours per week domestic assistance and would continue to require six hours per week domestic assistance until three months after treatment with the Ketamine infusion. After that time he would require four hours per week domestic assistance "... continuing in perpetuity" (Blue AB 3, 968). He stated that his prescription for domestic assistance assumed that he was living alone in an average house.

[48]

(i) Dr Roger Rowe, Orthopaedic Surgeon, Report 12 July 2005 331Dr Rowe, reporting to CGU Workers Compensation (NSW) Limited on 2 March 2004 and 12 July 2005 assessed the plaintiff following his last round of surgery. In his second report he considered that the plaintiff was only fit for work of a light sedentary or semi-sedentary nature. He observed: "... he is considered permanently unsuited to any work that requires heavy lifting, pushing, pulling or prolonged or repeated bending. He is not really suited for work that requires prolonged sitting or prolonged standing in one position without the opportunity to change that position from time to time. However, in view of the long history so far and the lack of progress, it is unlikely that Mr Checchia will return to the workforce in the near future in any capacity". (Blue AB 3, 1264). 332I have set out above extracts from Dr Fizsimons' report dated 10 March 2006. Dr Fitzsimons, neurologist, is the only non-treating specialist who examined the plaintiff at the request of his solicitors. Dr Fitzsimons' report of 10 March 2006 (Blue AB 3, 1051, 1058) provides a comprehensive analysis of the clinical history, radiological investigations and surgical intervention. The plaintiff at the time of his examination stated that it was difficult to say whether he had benefited from the fusion that had at that point been performed only two months prior to the consultation. At that time, the leg pain appeared to have benefited from the fusion, but otherwise low back pain continued. In the "comment" section of his report, Dr Fitzsimons observed: "It is evident from the above clinical and radiological chronology, with multiple operations since his initial presentation with back pain following his accident in January 2003, that Mr Checchia has sustained lumbar disc protrusion[s] as described radiologically, with consequentially very serious structural complications in his lumbar spine, including the development of postoperative granulation tissue causing further compression of nerve roots, and debilitating pain, very understandably leading to the functional limitations in both his domestic and employment capacities, as described." (Blue AB 3, 1056) 333Dr Fitzsimons noted that the physical findings, including impairment of sensation, was "...consistent evidence of radiculopathy in relation to L5 nerve root ..." (p 1056). He assessed the "WPI" in terms of workers compensation legislation as 20% combined with a further 9% giving a 34% WPI according to the combined values chart (p 1057). 334Dr Fitzsimons concluded that the plaintiff was certainly not physically fit to work as a café manager and it remained to be seen whether he had any longer term benefits from the recent surgery. He added: "... however the degree of any such improvement must be guarded as uncertain, and sophisticated rehabilitation advice will need to be obtained as to the most appropriate forms of vocational retraining, with particular focus on whether there is some aspect of the hospitality industry/management which he would find fulfilling and able to do" (p 105?). 335Prior to his spinal fusion on 20 November 2005, the plaintiff had co-operated and participated in a prescribed treatment program. As earlier noted, he undertook the ADAPT program on referral by Dr Steel. He admitted to having experienced some improvement of function and pain: Dr Nakhle's report of 19 October 2006, at Blue AB 3, 1186.

[50]

(iii) Dr Bowers 340The plaintiff was assessed by Dr David Bowers, Specialist Rehabilitation Physician on behalf of the defendant. He provided reports dated 11 July 2006, 14 December 2006, 18 April 2008, 25 August 2008, and 19 September 2008. In the first of those reports he noted that the plaintiff was co-operative with the examination, that he complained of pain at the lumbosacral spine level radiating to both buttocks. He noted a decrease of the normal lumbar lordosis and considered that his history of symptoms at the time of examination were, "... largely consistent with the other features of a medical case". He added, "the physical examination confirms ongoing problems with the lumbar spine. There were however signs of an ongoing non-organic contribution to complaints": (Blue AB 3, 967). This latter comment appears to have related to his examination in the right leg and complaints on examination. 341Dr Bowers suggested that although the plaintiff's pain should be lessened "somewhat" with admission to hospital and treatment with Ketamine infusion "In the long term he will be prone to ongoing aches and pains associated with osteoarthritis of the spine": at p 967. 342He considered that, after completing treatment with a Ketamine infusion he would expect him to be able to return to suitable sedentary work for three-quarters of the normal hours expected until the usual retirement age (p 968). 343In his report of 14 December 2006, Dr Bowers commented on his review of a number of documents which included medical reports concerning the 1993 injury. He stated that he considered, in the light of that history, that half of the plaintiff's complaints were due to the accident of January 2003 and half due to the work accident of 1993. He did not explain how, or upon what basis, he made that assessment. 344Dr Bowers, it is noted, qualified his opinion as to attributability of the plaintiff's impairment when he stated in his report of 28 August 2008 that "if" it was not accepted that the plaintiff was symptomless between the accident of 1993 and the subject accident of January 2003, then the symptoms present when he saw him in July 2006 would be 50% attributable to the accident of 1993 and 50% attributable to the 2003 accident (Blue AB 3, 975).

[51]

(iv) Surveillance of the Plaintiff's Activities 345Both Dr Bowers and Dr Matheson provided reports upon surveillance that had been carried out upon the plaintiff's activities. It is apparent that surveillance has being carried out over a number of years. I have had the benefit of viewing DVDs, which are included in Blue AB 2, 540. 346Dr Bowers in his report of 28 August 2008, commented upon the surveillance of the plaintiff taken on 2 September 2005, 3 September 2005, 6 October 2005, 8 July 2006, and 28 March 2008. 347It is not necessary here to reproduce the detail of the various activities as described by Dr Bowers based on the DVD recordings on the above dates. It is sufficient to state that they do not indicate the plaintiff doing anything which is inconsistent with a severe lumbar disc lesion. Indeed, Dr Bowers commented in relation to certain sightings of the plaintiff on 2 September 2005 that he carried a particular object "in a cautious fashion". On other occasions he was seen to place his hand over the lumbosacral junction whilst performing activities. On 6 October 2005 he was also seen placing his right hand over the lumbosacral junction and commenced limping. Dr Bowers concluded "the DVD of September 2005 is consistent with his having symptoms affecting the lumbar spine at that time": (Blue AB 3, 975). At 976 he noted in relation to the DVD surveillance for October 2005 the plaintiff: "... did not perform any activities in October 2005 that were inconsistent with his medical history. He had previously undergone lumbar spinal fusion surgery ... he will always have some limitation in physical and work activities as described in my report of June 2006". 348Dr Matheson was the other qualified specialist who was invited by the defendant to examine various DVDs. These included DVDs in relation to the plaintiff's activities on 19 March 2008, 28 March 2008 and earlier DVDs taken in September, October 2005 and on 8 July 2006. 349In relation to the 2008 surveillance, he stated that the plaintiff was not seen doing anything of note. His only comment was that "... there does seem to be some degree of loss of lordosis of the lumbar spine and a tendency to maintain an upright posture rather than to sit ...". He noted that the plaintiff entered a car and drove away normally. 350In the 2006 surveillance he appeared to shop normally. 351In relation to the surveillance on 6 October 2005, he was seen in Macquarie Street, Sydney carrying a bag. He was noted to be holding his back and walked with a slight scoliosis at times but at other times a normal posture. 352On 9 October 2005 he was seen driving a car and later standing, bending to pick up a container and bending his legs whilst doing so, whilst keeping his back straight. 353The final film of 2 September 2005 revealed the plaintiff walking. Dr Matheson commented that it appeared he walked normally. He was seen driving a car, he was seen carrying an object and bending his knees whilst doing so. He appeared to have a little difficulty placing the object down. This, Dr Matheson stated, was probably the most telling of the film he had seen as it indicated that he could do some physical work and lifting. 354The surveillance on 3 September 2005 showed him entering a car and standing around. 355Dr Matheson said the DVD surveillance was consistent with his report and he stated that he had "a minor back disorder" and that it certainly excluded a major back disorder. He noted that the film taken in Macquarie Street indicated that he was exaggerating "a bit". 356In answer to specific questions, he considered that the film did not enable him to conclude that he was not suffering from some effects of the 2003 injury, but "... it is more consistent with his pre-existing degenerative condition". Why that would be so was not explained. 357Dr Matheson provides no basis or support for that conclusion. It is clear upon a reading of all of the reports that the information concerning the 1993 injury appears to have changed Dr Matheson's assessment, in particular on causation, dramatically, unlike the majority of the medical specialists whose reports were in evidence. 358Dr Matheson provided a further report dated 18 September 2008 relating to surveillance carried out in 2006. There was nothing of significance observed in such surveillance material. Dr Matheson simply said it did not show him doing anything strenuous but "it does not exclude a back disability but it does show he's quite functional". 359In the assessment of the surveillance material and the comments of Dr Bowers and Dr Matheson upon it, I make the following observations: (1) The evidence reveals that the plaintiff had been under surveillance over several years. (2) The surveillance did not reveal him undertaking any activity that was inconsistent with a lower lumbar spinal lesion. (3) The surveillance observations did not indicate the plaintiff engaging in any activity inconsistent with a person who has undergone multiple lumbar surgery. (4) Given the nature of the prolapse as described by Dr Parkinson and associated nerve root problems, the multiple surgery that has been undertaken including the lumbar fusion, it is hardly surprising that surveillance did not produce inconsistent material. 360The only reference to material by Dr Matheson suggestive of exaggeration related to observations carried out in Macquarie Street. Even if it be accepted that the plaintiff exaggerated his condition to an extent upon approaching or leaving a doctor's rooms, given concessions by the plaintiff that his condition had improved from time to time, and the observations by medical examiners as to consistency of complaints, surgical interventions and his participation in rehabilitation programs, the reported exaggeration by Dr Matheson does not, in the overall context of the evidence, appear to have a great deal of support in the nature of surveillance or other objective evidence. 361I have also noted Dr Mills' references to "embellishment" and what he referred to as an exaggerated report of disability. I do not consider that the evidence establishes that the plaintiff has either up to 20 October 2006, or since, deliberately set about giving false or exaggerated account of symptoms to treating and other doctors, or subsequently in evidence. References in the evidence to any "functional" or non-organic symptoms superimposed on genuine injury and disability does not necessarily equate to fabrication of symptoms. Nor, in my opinion, having regard to the history of the case, do references by Dr Mills to "the presence of embellishment" or "exaggerated report of his disability" establish fabrication. 362As to psychological aspects, I note that Dr Maguire, psychiatrist who examined the plaintiff on 18 August 2006 for the defendant, diagnosed the plaintiffs history as consistent with "a DSM-IV diagnosis of a chronic Adjustment Disorder with Depressed Mood ..." (Blue AB 3, 1099) 363In evaluating the claim for settlement purposes I have concluded that: (i) The evidence relied upon by the defendant on the level of the plaintiff's activities the surveillance evidence is not inconsistent with a significant level of disability and in some respects as noted above corroborates the plaintiff's spinal disability. (ii) There is an objective pathological or organic basis that supports the existence of a significant level of disability and incapacity, the assessment of the same does not, in the main, depend or turn upon the plaintiff's subjective symptoms. (iii) The medical evidence plainly establishes that the plaintiff was effectively totally incapacitated for work up to 20 October 2006. (iv) The medical assessment of the existence and extent of the plaintiff's disability is reflected, inter alia, in the substantial assessments made by the insurer's legal advisers prior to settlement, namely: (i) Senior Counsel, 4 October 2006: Blue AB 2, 678-684. (ii) Junior counsel, 20 September 2006: Blue AB 2, 652-670. (iii) The defendant's solicitors, 16 October 2006: Blue AB 2, 686-689. (v) Surgical intervention, in particular back surgery, is conventionally regarded as treatment of last, not first, resort and is only undertaken where there exists cogent and clear evidence of a pathological basis responsible for spinal symptoms warranting intervention. In the present case there is cogent medical evidence in support of the genuineness and seriousness of the plaintiff's injury and disability consequent upon the subject motor vehicle accident and the need for surgery. (vi) With respect to the findings of exaggeration made by the trial judge to the extent that it was said to have been based upon the plaintiff's appearance in the witness box, I consider that the evaluation of the actual level of disability is primarily to be gauged by the medical and other evidence rather than by the presentation or appearance in the course of giving evidence. (vii) The medical evidence supports the conclusion that as a consequence of his back injury the plaintiff has been and is likely to continue to be incapacitated for his pre-injury work as a waiter and for any form of work involving repeated lifting, bending and/or prolonged standing due to the effects of injury sustained in the 2003 accident. (viii) That whilst the evidence overall establishes that the plaintiff has a residual earning capacity, given the medical evidence as to the level and extent of the disability, the plaintiff's age and his limited qualifications, his residual physical capacity for work is and has, since 8 April 2003, in my assessment, been very limited. 364I have earlier referred to Mr Roberts' opinion in which he considered that it was certainly open to the plaintiff to argue that he had, to all intents and purposes, no residual earning capacity and that on any view such residual earning capacity as he had was extremely limited: at [104] of his Opinion, 14 June 2012. As earlier indicated, the medical evidence in my opinion supports that assessment. 365The above conclusions, I consider, accord with the opinions expressed by Mr Roberts SC in his first report to the following effect: "80 The above ... summary of the medical evidence would have led, in October 2006, to the following conclusions: 80.1 as a result of the injury the plaintiff suffered a severe aggravation of a pre-existing back disorder including a pre-existing calcifying lesion at L4/5. This precipitated further prolapsing of the disc at L4/5 and entrapment of the L5 nerve root. 80.2 As a result the plaintiff has undergone 3 attempts at surgical correction, none of which has led to a significant improvement in his condition although the 2005 fusion probably led to some improvement in his right sciatica. 80.3 The plaintiff remained subject to severe back pain aggravated by activity, buttock pain and occasional right leg pain with numbness. He also suffers depression resulting from the pain. His ability to enjoy sexual function is also adversely affected by the pain and associated depression. 80.4 In the period between April 2003 and March 2004 the plaintiff was able to perform some restricted duties on a limited basis. Since March 2004 he has, to all intents and purposes, been totally incapacitated for work. 80.5 The plaintiff remains unfit for his pre-injury employment and his employment opportunities are extremely limited. At best he may be able to obtain employment on a part-time basis in some sedentary position, for which he has little training. 80.6 The plaintiff has required, and will continue to require, significant amounts of domestic assistance. He also requires some assistance in childcare activities. 80.7 The plaintiff has an ongoing need for medical treatment, principally pharmacological but also involving some physical therapy and psychotherapy."

[52]

(F) PERSONAL FACTORS 366The plaintiff was, as at the date of the accident, 31 years of age and as at the date of the Settlement Conference (20 October 2006) he was 35 years of age. As at the latter date he was a married man with a three-year old child and it appeared that his wife was expecting their second child when he was injured. He is presently 42 years of age with a normal residual working life to age 65 of 23 years. 367The plaintiff left school in about 1990 having completed his Higher School Certificate and commenced work in the hospitality industry in 1995 and thereafter pursued such employment up to the date of the accident. On the evidence, he had a history of sustained or continued employment. 368Mr Roberts in his Brief Summary of Opinion dated 14 June 2012, with respect, accurately summarised the position concerning the plaintiff's disability and incapacity in the following terms: "3 I am of the opinion that, when consideration was given to a recommended settlement range as at 20 October 2006, the plaintiff would have been found to have suffered a severe aggravation of a pre-existing back disorder including a pre-existing calcifying lesion at L4/5. The motor vehicle accident precipitated further prolapsing of the disc at L4/5 and entrapment of the L5 nerve root. Notwithstanding 3 attempts at surgical correction, treatment had not led to a significant improvement in his condition. As at October 2006 the plaintiff remained subject to severe back pain and occasional right leg pain with numbness. He also suffered from depression, and an inability to enjoy normal sexual function. 4. As at October 2006 the plaintiff had had a protracted period of being totally incapacitated for work and remained unfit for his pre-injury employment. His residual employment opportunities were extremely limited. 5. He had undergone a great deal of medical treatment and required further treatment. He had received gratuitous domestic assistance and required such domestic assistance to continue in the future." 369Although the plaintiff wilfully withheld information concerning the 1993 injury, other than its possible implication upon the plaintiff's credibility, (discussed below) his failure to disclose it, in my opinion, does not undermine or detract from the opinion and findings made by Dr Parkinson or Dr Steel as to the nature and cause of the spinal injury suffered and the fact of continuing impairment and incapacity since 2003.

[53]

(G) PRINCIPLES: ASSESSMENTS UNDER SECTION 118 370The judgment of the Court of Appeal in Insurance Australia Limited t/as NRMA Insurance v Checchia [2011] NSWCA 101 establishes a number of principles relating to the construction of s 118 in respect of claims involving false and misleading conduct for the purpose of obtaining a financial benefit, several of which are set out in [16] above. 371In summary, the following propositions were enunciated by Beazley JA (i) Although an insurer may establish factual matters necessary to satisfy s 118(1), an entitlement to relief of liability under s 118(2)(a) (in respect of a payment, settlement, compromise or judgment) will not be known until it is know whether the financial benefit in fact obtained by the claimant was one to which he or she was not entitled: [38]. (ii) That requires a determination of the financial benefit to which the claimant was entitled on the premise that no misleading statement was made. The quantitative difference between the two, if any, is the extent to which the insurer is relieved from liability pursuant to s 118(2)(a): at [38]. (iii) It follows that there need not be a correspondence between any financial benefit the claimant was fraudulently seeking and the financial benefit, from the payment of which the insurer is relieved under s 118(2). In other words, s 118(1) specifies the circumstances in which the section is engaged. Section 118(2) specifies the consequences which may flow where the section is engaged: at [39]. (iv) It is not appropriate to assess a claimant's damages as if assessing a personal injuries claim under the MAC Act. (Referred to as the 'true value theory' at [43]). (v) Section 118(2) is directed to the quantification of the amount of the liability which an insurer is relieved from paying where s 118(1) has been engaged. (vi) A settlement involves compromise by both parties. There are a myriad of factors that may affect that compromise. One factor of significance is the costs involved in the proceedings or full hearing. Another may be the avoidance of delay. There may be factors personal to a particular party that are not quantifiable but which may influence the person to offer or to accept a particular amount, eg willingness to engage in stressful litigation. There may be other less worthy motivations in settling, including a desire that previously undisclosed income does not come to notice. It cannot be assumed that an amount agreed by way of settlement of compromise, and the amount obtained or likely to be obtained in a court judgment, would be the same: at [45]. (vii) When a settlement is involved, s 118(2) expressly provides that the insurer is relieved from the legal liability to pay under the settlement "to the extent of the financial benefits so obtained by the claimant". The court is required to determine, not what the person guilty of the false and misleading conduct would have obtained in a judgment, but the financial benefit that person obtained in the settlement, as a result of the false and misleading conduct: at [46]. (viii) The insurer has the onus of establishing the amount in respect of which it may be relieved of reliability: at [49].

[54]

PART J - ASSESSMENT OF FINANCIAL BENEFIT 372In determining the issue of financial benefit on the evidence in this case, there is a question as to: (i) whether or not the upper or lower end of the range, or some other intermediate figure as summarised in Mr Roberts' report, is appropriate in the circumstances of the case having regard to the evidence including as to the plaintiff's disabilities and incapacity and (ii) whether or not that amount should be further discounted by reason of what the defendant termed the "motivational factors" affecting the plaintiff and if so by what margin ("motivational factors" is a reference to the matters referred to by Beazley JA at [45] as noted in the defendant's Supplementary Submissions at [27]-[30]). 373Although, as was submitted by Mr Rewell on behalf of the defendant, the plaintiff may be taken as having had some concern over his non-disclosure of the 1993 injury and the issues concerning Exhibits 19 and "G" at the time of the settlement conference he must also have had an appreciation through, at least, his legal advisers, and his knowledge of the effects of the accident upon him, that the medical evidence strongly favoured the conclusion that he suffered significant injury in the motor vehicle accident in 2003 and that the disability, treatment and surgical interventions that thereafter occurred, were, on the evidence, attributable to it. 374I accept that the plaintiff's "motivational factors" to settle his claim are to be evaluated and given weight in the assessment of the proper settlement value of the claim. That is to also be considered and assessed in light of the body of medical evidence in support of the claim. Even assessed on the basis of net weekly award earnings, the economic loss damages and other components of the claim were, as at the date of settlement, likely to sound in substantial damages. 375The assessment of what was described as the "unworthy motivation" factor is not amenable to the application of a particular percentage discount as Mr Roberts made clear and he did not adopt or seek to apply such a discount approach. 376Plainly each case depends very much upon its facts and the assessment is to be made in particular having regard to the relevant strength or weakness of the plaintiff's evidentiary case. 377Whilst the defendant retained Mr Roberts to undertake an assessment and then a further assessment in his Opinions 14 June 2012 and 2 August 2012, there is a need for caution in adding a further discount to the earlier discount made in the initial assessment. That is particularly so in circumstances in which, as I have determined, the medical evidence is against the 1993 injury as being causative of the injury/disability flowing from the subject accident. 378Additionally, it is noted that Mr Roberts, understandably, in undertaking his retainer, approached the settlement opinion assessment in the context of an assessment by a court or tribunal ("As assessor or a judge"): at [14], [23] and at [31]. 379In Mr Roberts' Supplementary Opinion on future loss of earning capacity, reference is made to the opinion of Dr Bowers as likely to gain acceptance by an assessor or judge. I, however, in undertaking the assessment under s 118, have had regard to the wider range of medical evidence as the preferred basis for making the assessment, for reasons I have earlier discussed. 380Mr Roberts in his Supplementary Opinion proceeds upon the basis that a need for past and future care existed and will remain in the future. Having considered the latter Opinion, I remain of the view that the assessment set out in Mr Roberts' Opinion of 14 June 2012 at [124] is a more reliable and useful guide.

[55]

(A) COMPARABLE EARNING DATA 381The plaintiff sought to rely upon reports of Mr Craig Martin, rehabilitation counsellor, to establish levels of remuneration of a barista working in Sydney: Report 29 June 2012. The defendant objected to the admission of the report and of the Supplementary Report of Mr Martin dated 6 August 2012 (MFI 3), and other materials. The report of 29 June 2012 and other materials were all admitted on the voir dire (Exhibits V-A, V-B, V-D and V-E) for the purpose of assessing the relevance of the evidence. 382Mr Martin compiled remuneration details from advertised jobs on the internet. Based on that material he concluded: (i) A barista working in Sydney was likely to earn $686.17 gross per week as at August 2003. (ii) A barista working as a Floor Manager in Sydney was likely to earn $796.84 as at 2003. 383A number of matters were raised in his cross-examination that revealed that Mr Martin's source data had limitations which need not here be detailed. See T 8 August 2012 at 293-242. 384Mr Gross QC sought to rely upon the evidence to support the plaintiff on the issue of his pre-injury earnings "as to what the market rate would have been": T 217, 1-5. 385Mr Rewell contended that it was not relevant to an issue in the proceedings: T 217. 386I have concluded that the report dated 29 June 2012 should be admitted. However, I do not consider that the report has much in the way of probative value to the issues in the proceedings. It will be marked as Exhibit B. 387In the first trial there was lengthy cross-examination of the plaintiff which included reference to the surveillance material. The cross-examiner, whilst accepting that the plaintiff had some spinal disability and impairment, put questions to him based on surveillance conducted, including his ability to walk distances, on occasions at quick pace and at other times moving slowly when near Dr Mathesons' rooms, and other aspects, although the effect of this was, of course, necessarily limited by the content of the surveillance material itself: Black AB 1, 230-232, 250-253, 259, 263, 265-266, 278-279, 280. 388I proceed to determine the financial benefit to which the plaintiff was entitled on the approach and the premise stated by Beazley JA at [38] of her Honour's judgment in the appeal proceedings, and in particular having regard to the following. (i) In assessing the financial benefit to which the plaintiff was entitled on a settlement basis as at 20 October 2006, the "Recommended Settlement Range" set out in Mr Roberts' Opinion 14 June 2012 at [124] should, in the circumstances and on the evidence and findings in this case, be adopted as a guide in determining the extent of any financial benefit in respect of which the defendant is entitled to relief. (ii) The heads of damage as therein assessed by Mr Roberts, on the lower end of the range totalled $718,800 and at the upper end of the range, $956,000 (in round figures) to which was to be added past out-of-pocket expenses (agreed at $149,000) and tax deducted from weekly payments of compensation ($15,000). (iii) The "Recommended Settlement Range" as assessed by Mr Roberts and referred to in (i) makes provision for the assessment of past and future economic loss on a lower basis than that contended for by the plaintiff at the settlement conference -the range of economic damages is based on net weekly earnings of $409 net per week adjusted for assessing future economic loss to $452 net per week: Mr Roberts' Opinion at [99]-[110]. (iv) The assessment of value of lost past and future superannuation payments is consequentially assessed on the lower range of weekly earnings referred to in (iii) above. (v) A further discount to the "Recommended Settlement Range" should be made to allow for the possibility that the plaintiff would have been anxious to settle his claim than pursue it in court for reasons discussed in this judgment arising out of the provision of false and misleading information. As discussed above, although there is no recognised or conventional discounting percentage or approach to be applied to take account of "motivational factors" the assessment is essentially one of impression and evaluation rather than of mathematical calculation. I have, in assessing the settlement value of the plaintiff's claim, reduced the assessment of individual heads of claim as set out below by reason of such factors. (vi) The cogency and strength of the medical evidence on the issues of causation, nature and level of impairment and incapacity would, in my assessment, place the plaintiff's claim towards the upper end of the "Recommended Settlement Range" set out in Mr Roberts' first Opinion at [124]. (vii) In determining the issue of "financial benefit" under s 118, I have considered each head of claim and determined what I consider to have been the appropriate value of each on a settlement basis as at 20 October 2006. The adjustments that have been made to the upper end of the range of Mr Roberts' "Recommended Settlement Range" have been made on the basis of (i) an assessment of the plaintiff's residual earning capacity (ii) the "motivational factors" and (iii) taking into account evidence, in particular that of Dr Mills, that was available to the defendant for the purposes of settlement negotiations, in which Dr Mills maintained that there was exaggeration of symptoms. (viii) The adverse findings made in this judgment against the plaintiff (in particular as to the issue of pre-injury earnings), the plaintiff's unsatisfactory evidence in relation to the latter issue and as to earnings, cash payments allegedly received and as to his taxation returns and declarations. (ix) The need for caution in assessing the plaintiff's credibility given that this is a case where there is a need for the trier of fact to separate the truthful parts of the party-witness' evidence from the rest in accordance with the observations contained in the authorities referred to in Part C of this judgment. 389A review of the medical evidence strongly supports the conclusion that the plaintiff has had, and is likely to remain, for all intents and purposes, with a limited residual earning capacity.

[64]

(ix) Future Care 402The assessment of accident-caused need for future care was assessed by Dianne Croker, occupational therapist, on referral from the defendant's solicitors. Her assessment report is at Blue AB, vol 3, pp 1005-1026 with a supplementary letter dated 18 September 2006 (Blue AB 3, 1027). 403Ms Judith Davidson, occupational therapist, provided a report dated 22 September 2005 on her assessment at the request of the plaintiff's solicitors (Blue AB 3, 1028-1043). 404Both Ms Croker and Ms Davidson were agreed that their assessments of the care required for the plaintiff's past needs are likely to continue into the future (that is, excluding child care). 405Accordingly, as at 20 October 2006, the assessment was based on a need of between 6 hours and 8 hours. On a gratuitous basis under s 128 of the MAC Act, the rate was $22 per hour. 406If future care was assessed on the same basis for the balance of the plaintiff's life expectancy as at October 2006 (50 years multiplied by $976.20) then, as Mr Roberts observed, that would produce a range of $128,858 to $171,811. From that range, allowance as made by Mr Roberts for the prospect that the plaintiff would have required assistance in any event. He accordingly adjusted the above range to $115,000 to $155,000. 407In his Supplementary Opinion, Mr Roberts concluded that the plaintiff at best would recover damages for no more than 6 hours assistance per week. He revised the range of future care from nil to $155,000. 408The findings earlier made based on the medical evidence are, of course, relevant to this head of claim as well as other heads including past and future economic loss. Allowance must be made for the adverse findings made as to the plaintiff's credibility arising on the issues earlier discussed - the non-disclosure of prior injury ad the production of false documentation to support the economic loss heads of claim. Other evidence, including the surveillance evidence, is also to be considered, although as earlier indicated it is, in my assessment, of limited assistance. 409The assessment of the plaintiff's need for future care must necessarily reflect the fact that the plaintiff had, and as at October 2006 been assessed with having a permanent impairment. The assessment of future care requirements in a comparatively young man such as the plaintiff over a long period, clearly does not lend itself to precise calculation. I have concluded that, in order to bring into account all of the above considerations, the calculation of the claim for future care should be based on a starting point of a requirement, established by the evidence, of future care on the basis of 6 hours per week. 410On that basis, the future care claim is to be calculated as follows: 6 hours x $22 per hour x 976.2 (50 years). 411The above results in a calculation of $128,858. That amount, in order to derive the proper settlement value of this head of claim as at 20 October 2006, on a settlement basis should be, in my assessment, adjusted downwards to an amount of $115,000. That adjustment represents what I consider to be inappropriate provision for the "financial benefit" obtained and to which s 118 relates. 412On the above bases I am of the opinion that the proper settlement value of the plaintiff's claim as at 20 October 2006 should be assessed as follows: Non-economic loss $230,000 Past out-of-pocket expenses (agreed) $149,000 Future out-of-pocket expenses $75,000 Past loss of earnings $70,253 Fox v Wood component (agreed) $15,000 Past loss of superannuation $7,728 Future loss of earnings $270,000 Future loss of superannuation $30,000 Past gratuitous care $30,000 Future care $115,000 Costs $40,000 Total $1,031,981

Checchia v Insurance Australia Ltd t/as NRMA Insurance

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