(i) In 1993, Mr Checchia fell at work and injured his back at L4/5;
(ii) From December 1993, at the latest, there were no symptoms suffered from that 1993 injury;
(iii) For all practical purposes, in terms of symptoms, the 1993 injury was wholly resolved;
(iv) In 2003, Mr Checchia was involved in the motor vehicle accident, which caused significant injuries to the L4/5 vertebrae;
(v) The injuries currently suffered by Mr Checchia are wholly, or overwhelmingly, the result of the 2003 injury, or the treatment of it;
(vi) NRMA was misinformed as to the existence of the 1993 injury;
(vii) Notwithstanding some indication from medical practitioners of a pre-existing condition to L4/5, NRMA relied on the representation that there had been no previous injury to that area of the back.
99 I turn then to the evidence of Mr Checchia.
Mr Checchia's Evidence
100 Mr Checchia was not a particularly believable witness. His evidence in chief was generally satisfactory, and his demeanour was such that it would not be possible, on that basis alone, to determine that Mr Checchia was untruthful or prevaricating or dissembling. Nevertheless, there were some aspects of his behaviour that were concerning. While there are experts who have testified as to Mr Checchia's medical condition, my own observation of Mr Checchia in the witness box and in the courtroom was that he tended to exaggerate his discomfort. I do not, by the foregoing, suggest that he was not suffering pain and/or discomfort, only that there were times when the outward signs of that pain and/or discomfort seemed disingenuous.
101 Further, there were some aspects of Mr Checchia's evidence that seemed highly improbable. I am prepared to accept that, given his complete recovery from symptoms of his 1993 injury, he may, while he was in pain from the 2003 injury, have not recalled his injury or the details of it. That may explain the statement in his claim form. However, it does not explain the statement at [5] of his statement before the MAS, filed and served on about 29 September 2006. In that statement, referring to the 2003 injury, Mr Checchia states:
"I had no prior problems with my back or legs."
102 It is difficult to accept, and highly improbable, that when compiling the statement for Dr Ryan, he simply forgot his earlier back injury. Further, it is difficult to accept that the injuries that he did recall, when giving his medical history to practitioners, could be recalled because of scarring and/or wounds.
103 While it is possible that a number of the doctors took his history from earlier statements without specifically enquiring of Mr Checchia, the medical reports of Dr Mills, Dr Perla and Dr Matheson (Exhibit 28 page 5, Exhibit 2 pages 219 and 239 respectively) make clear that Mr Checchia had denied any such previous injury. The other medical reports (Dr Rowe [Exhibit 2 page 204], Dr Lawson [Exhibit 2 page 226], and Dr Maguire [Exhibit 2 page 309]) were ambivalent as to whether Mr Checchia was specifically asked as to the existence of previous injuries. Dr McMahon (Exhibit 2 page 234) seemed to rely on the history from other reports. Most interestingly, on enquiry from Dr Maguire, Mr Checchia mentioned his father's fruit business, but did not recall an accident that occurred in a fruit market. One would have thought, even though the accident occurred at a business other than his father's, that the mention of the fruit business would trigger some recollection of the accident that occurred in 1993.
104 On the other hand, I accept that Mr Checchia genuinely tried to return to work and genuinely undertook activities that he hoped (on the basis of medical opinion) would restore his health. He made clear to all or most of the doctors that he was engaged in an exercise regime that had been prescribed or recommended for him and, as earlier stated, involved walking, lifting weights, rowing, stretching exercises and the like. Mr Checchia sought to return to work and for a short time was successful in so doing. He sought to return to work on a number of occasions and sometimes performed light duties. I accept these attempts as genuine, and I accept, corroborated by the medical practitioners to whose reports I referred earlier, that the state of his injury prevented him from a return to permanent full-time unrestricted work.
105 Much was made, in extensive written and oral submissions, of the withdrawal of sums of money from various hotels over a period of time. Mr Poulos QC submitted that these activities were inconsistent with Mr Checchia's evidence as to the activities he could undertake after the various operations. Mr Poulos QC also submitted that these activities went to issues of credit. I reject both submissions. It was never suggested by Mr Checchia (or anyone on his behalf) that he was incapable of sitting, walking or driving. Often there were difficulties with each; and each could be undertaken for limited periods. But, assuming, as was submitted by Mr Poulos QC, that Mr Checchia was attending hotels for the purpose of gambling, by playing poker machines, there is nothing inconsistent with that activity and the injuries from which Mr Checchia says he suffers. It is difficult to imagine a less physically taxing task than driving to a local hotel (or even one slightly further away), withdrawing some money from an ATM, and pushing a button on a poker machine. Such an activity would allow Mr Checchia to sit for short periods, walk around when in pain, or stand as an alternative.
106 To the extent that the suggestion is made that the bank records disclose an income earning capacity, that suggestion is rejected. If, in fact, Mr Checchia were earning money, there is no evidence of him being paid any amount. Moreover, if he were being paid in cash, he would not need to withdraw from the ATM. Further, the hours of his attendance at a hotel would not seem consistent with the performance of work, and the hotels attended were so varied as to make it unlikely that Mr Checchia was working. There seems little difference in activity between sitting at home, presumably watching television or reading a book, and travelling to a pub and playing the poker machines, or watching football or other sport. It is difficult to understand what it is NRMA says Mr Checchia should have been doing, if he were as injured as Mr Checchia claims.
107 I have already discussed the issues surrounding the allegations relating to the drafting of the letter of appointment (Exhibit G). It is necessary to recount the circumstances of the 2002 tax return. Mr Checchia alleged that in the tax year ending June 2002 he worked for Blues Point Café and Bar Cupola. Mr Checchia filed a tax return that disclosed an income significantly less than he claimed he was earning. In 2008, Mr Checchia filed an amended tax return for the year in question in which he claimed to have earned a further $27,900, being the difference in earnings from Blues Point Café, originally stated to be $7,800 and by amendment said to be $35,700.
108 It is necessary to examine the submissions relating to the creation and existence of Exhibit 19. Exhibit 19 is the PAYG payment summary for Blues Point Café relating to Mr Checchia for the year ending June 2002. It is on an Australian Taxation Office form and discloses an income of $35,700 from which a total of $6,732 tax was withheld. Previously (see Exhibit 23), the PAYG summary disclosed an income of $7,800, from which $1,040 was withheld as tax. Each form purports to be signed by Mr Colosi, although the signatures appear to be, at least partially, different. The typed explanation in the amended tax return, submitted by Mr Checchia is to the following effect:
"When I did my original tax return I received the wrong payment summary from Blues Point Café. When I received the correct payment summary I was in hospital recovering from an accident which has become an ongoing issue which made me forget to amend my 2002 tax return."
109 The amended PAYG summary is on a form with the notation NAT 46-01.2005. The material before the Court explains that such a notation means that the form was created by the ATO in 2005. It is dated 2 October 2002. On the material before the Court, such a form could not have been dated on the date specified. Further, the handwriting of the date differs, to some extent, from the previous summary (on a form published in 2001).
110 There is no evidence that Mr Checchia forged the document. It may be that Mr Colosi completed a new summary in about 2005, but dated it consistently with the original. There are certainly inferences available consistent with the genuineness of the document and inconsistent with dishonesty on the part of Mr Checchia. But that is not the test. These are not criminal proceedings. It is sufficient that I am satisfied, on the balance of probabilities, that the "amended" payment summary is not genuine. Nevertheless, there are a number of possibilities that explain these inconsistencies. To me, the most probable inference is that the initial tax return understated (deliberately or otherwise) the income received, either because significant amounts were paid in cash or, on a less likely basis, there may have been two payment summaries issued and one of them may have been lost then reissued.
111 It is not unknown for applicants for compensation to have understated their income. The courts will generally not accept an income greater than disclosed in the tax returns and, as a consequence, such applicants often, in those circumstances, amend their tax returns. The issue of such tax returns is a matter between the applicant, in those circumstances, and the Australian Taxation Office. It seems to me that the foregoing is the most probable explanation for these occurrences.
112 Because of these proceedings (including the Assessment proceedings that were settled), Mr Checchia sought and obtained a payment summary that disclosed his real income. Alternatively, Mr Checchia had earlier received a PAYG Summary reflecting the higher income but feigned its loss in order to procure another. He then lodged an amended income tax return that reflected his true income. The PAYG Summary lodged with the ATO reflects an amount of tax deducted. It is most implausible that the ATO, who have received this document, would not know with certainty whether it was accurate, at least as to the tax said to be deducted.
113 Notwithstanding the foregoing "innocent" explanations, it still says much about Mr Checchia's honesty. Ultimately, I am not satisfied, even on the balance of probabilities, that the income was overstated in the claim form. Further, the settlement was based on a claimed income of $750 per week, and, on the basis of the QVB contract, which I have accepted as genuine, his earnings were required to be assessed on at least that basis. Although, without evidence of prior earnings, the QVB earnings, alone, may have given rise to uncertainties in continued earnings that would need to be factored into any calculation of damage.
114 The next major issue to which NRMA refers in relation to Mr Checchia is the allegation that his conduct was false and misleading in his depiction of his injuries, either by statement or motions, to the medical practitioners and, through some of them, to NRMA. As earlier remarked, NRMA tendered a number of recordings of Mr Checchia undertaking various activities. Some of those recordings were taken by NRMA prior to the settlement, but other persons took some of them, and some of them were taken after the settlement and some originally for a different purpose.
115 A DVD was tendered showing, amongst other things, Mr Checchia undertaking activities including carrying a piece of palm tree and placing it on the ground. It was suggested that this DVD showed Mr Checchia conducting activities inconsistent with his injuries. I do not agree.
116 The DVD shows Mr Checchia walking very upright (more so than is normal) and carrying a piece of wood in a manner which would be unusual for anyone not protecting their back or some other injury. He shows himself to be very tentative about putting down the timber, he walks while carrying, the weight being taken, it seems, in his arms, he seems to bend with difficulty and, at another juncture, hold his lower back fleetingly. He seems to lift with his left arm, using his elbow, rather than his back, or even his legs. The date of that occurrence is 2 September 2005 at approximately 9:31 a.m.
117 On the same DVD Mr Checchia is shown, on 3 September 2005 at approximately 8:06 a.m., walking, it seems to an auctioneer's rooms. In this DVD, he is shown driving, smoking, talking and leaning on one foot.
118 In the second DVD (Exhibit 5), Mr Checchia is originally shown in Macquarie Street near the corner of Bent St. His movements are initially less fluid; he is then shown standing around after which he walks slightly better than before, but with a slight limp. On 9 October, he is shown, on this DVD, standing by a car talking, driving and at the fish markets. While he is shown bending to look at a wine cabinet, there seems little difference between his activity disclosed in this recording and his activity shown on the first recording, described above, which was taken by MLC.
119 The third DVD was taken by Quantum for MLC. It shows Mr Checchia carrying a large paper/plastic screen (i.e. to show movies) i.e. carrying a mobile movie/video screen on a stand. The item is extremely light, as is clear from the DVD.
120 Exhibit 7 is a DVD taken by NRMA and covers the period 2 November 2006 and following. In this, Mr Checchia is shown driving, walking (relatively easily), carrying a large toy horse (for five-year-olds) and other activities. He is shown going to the Leisure Centre, leaving the centre with a towel over his arm, and filling the car with petrol, during which he raised his arm to rest it on the pump. Mr Checchia, during these activities, moves relatively freely and holds his arm up.
121 Exhibit 8 is a further DVD covering the period 19 March 2008 and following. During the course of this recording Mr Checchia is shown driving, walking, moving relatively freely, and he bends his back (arching). The DVD also shows Mr Checchia kicking a paper so that his wife could pick it up, presumably because he was unable so to do, or had some difficulty so doing. He tentatively stretches his back and he gets up and down from the seating position constantly and tentatively.
122 The medical evidence, and the statements of Mr Checchia, discloses that Mr Checchia was not, prior to the settlement, in constant pain. He was in pain from time-to-time, often and regularly. Often the pain was much worse than other times. The mere fact that a recording would show Mr Checchia moving freely is not inconsistent with his representations and conduct. There is sufficient evidence in the recordings that have been tendered to show the tentativeness and care with which Mr Checchia was moving, from time-to-time, and his discomfort at sitting for any length of time.
123 As earlier stated, Mr Checchia disclosed his exercise regime to each of his medical practitioners, or medical practitioners appointed by NRMA, and, as such, was not suggesting that he was incapable of doing everything all the time. Nor was he suggesting that there were not times when he could move freely or times when he would not be in pain. Most medical practitioners attested to the fact that the DVDs made no difference to their assessment. I accept that opinion. I should, for abundant caution, mention that NRMA did not tender all of the surveillance records of Mr Checchia that it held.
124 The foregoing is not intended to suggest that there were not times when Mr Checchia exaggerated, deliberately, the symptoms from which he was suffering, at that particular time. However, it seems that the symptoms that he disclosed on medical examination were symptoms that he, in fact, suffered, even if they were not being suffered at the time of the examination. In other words, the conduct did not give a false impression or misleading impression of the symptoms that Mr Checchia suffered or of the pain that he endured. A fortiori is that the case, when it is taken together with the information that his symptoms varied and that he was able to participate in an exercise regime.
125 I do not consider that Mr Checchia's conduct, or any statement, concerning his disabilities was misleading or false. Nor do I consider that this aspect of his conduct was intended to be misleading or false. On the balance of probabilities, Mr Checchia intended to represent only that which he was suffering.
126 Overall, I do not consider Mr Checchia a witness of truth or reliability. Some of his answers were disingenuous and dissembling. But not all of them were. For example, the explanation given for his answer to the Oswestry Disability Questionnaire cannot be believed. On the other hand, his response to the vigorous cross-examination on the issues of the disability he was suffering and on his previous employment earnings was, in most respects, extremely believable, unsophisticated, and unrehearsed. There were aspects of that questioning that clearly made Mr Checchia nervous. But an analysis of that demeanour, and the questions that were being asked, suggests that the nervousness was a reaction to his embarrassment at failing to declare his full income, and the issues associated with it, rather than a consciousness of guilt as to the claims to NRMA of his prior earnings.
127 The findings that I have made as to his false or misleading conduct, while partly relying on Mr Checchia's oral evidence, have been made largely on the basis of objective material. However, even liars and rogues are entitled to the benefits of the law, to the extent that the facts support the cause of action for which they contend.
128 I have found that Mr Checchia engaged in misleading and/or false conduct insofar as he misinformed NRMA as to the existence of a prior injury in 1993. Further, to the extent that it adds to the foregoing, his conduct in maintaining that assertion of fact or failing to correct it was false and/or misleading and was knowingly false and/or misleading. Whether the initial statement was knowingly false or misleading does not seem to add to the effect and it is unnecessary for me to determine it finally. I have made that finding, on the balance of probabilities.
129 I am not satisfied, even on the balance of probabilities, that Mr Checchia's conduct (some of it possibly fraudulent, at least in his dealings with the ATO) in asserting a prior rate of earnings (and supporting the assertion with questionable documents) was false or misleading. Nor, on the balance of probabilities, am I satisfied that Mr Checchia engaged in false or misleading conduct, or, more accurately, misled NRMA, as to the state of his disabilities, his injuries, his capacity, or his pain, at least in the period ending on the date of the settlement.
Purpose
130 There remains, on the question of liability, one aspect that must be determined. That aspect is whether Mr Checchia engaged in the misleading conduct, namely, the factual assertion and/or failure to correct the assertion that there had been no relevant prior injury (hereinafter "the misleading conduct"), for the purpose of obtaining a financial benefit.
131 As one would expect, the only evidence directly affecting subjective purpose was the evidence of Mr Checchia. Indeed, in this case, there is little evidence indirectly affecting the existence of the contended subjective purpose. Some of the evidence that points to a purpose that would satisfy the contention of NRMA is the evidence of dissembling and misleading or false conduct to which reference has already been made.
132 On the other side of the ledger, there is significant evidence of the conduct of Mr Checchia that displays a genuine attempt to return to work, to improve his disabilities and/or incapacities and thereby to minimise what may otherwise have been payable under any compensation arrangement. Those attempts were unsuccessful, at least in the long-term. My assessment is that Mr Checchia genuinely sought to return to work and genuinely sought to improve his position. Those are factors that, together with the acceptable evidence of Mr Checchia, compel me, on the balance of probabilities, to find that his conduct was not done for the purpose of obtaining a financial benefit. While he may have sought to forestall an enquiry that would delay or complicate a settlement that appropriately compensated him for the injury, he did not do so for the purpose of preventing a rejection of his claim or for obtaining a claim to which he was not entitled.
133 That raises an interesting question as to the subjective purpose necessary to relieve an insurer of liability under the Act. On one view, if claimants engaged in false or misleading conduct for the purpose of obtaining what they considered to be their just entitlements, such claimants would not be engaging in the conduct for the requisite purpose. I do not accept that view. It seems that a construction consistent with the purpose of the Act requires that the purpose of the misleading conduct be for the obtaining of a financial benefit, as objectively determined. Claimants do not escape the effect of s 118 of the Act by having a subjective view as to their entitlements that is greater than, in reality, is the case.
134 I hasten to add that it is for NRMA to satisfy the Court, on the balance of probabilities, of the requisite purpose. As the foregoing seeks to make clear, NRMA has not satisfied that burden. On the contrary, I am satisfied to the opposite effect. As a consequence of that finding, it is strictly unnecessary for me to deal with the level of damages. NRMA has failed to establish to the Court one of the elements necessary to relieve it of the liability imposed upon it by the settlement. The settlement is binding and judgment will issue for Mr Checchia.
135 In some respects, such an outcome is a little galling, because a person who has misled an insurer, and, on one view, undermined the purpose of the Act, is to receive full compensation under the Act. Nevertheless, Mr Checchia was injured, a driver of a motor vehicle for whose negligence NRMA is responsible through its insurance policy caused the injury, and the scheme of the Act is that Mr Checchia ought be appropriately compensated for that injury. Further, Mr Checchia may yet face criminal proceedings under s 117 of the Act. The criminal provisions apply, whether or not there has been a purpose of obtaining a financial benefit, and a harmonious construction of the different provisions of the Act, and the overall scheme of the Act, requires that persons who are injured be properly compensated, even if they are otherwise subject to criminal sanctions.
136 Notwithstanding the lack of necessity to deal with damages, I will deal, very briefly, with some of the findings I would make were damages to be assessed. The process to be undertaken is slightly different from the assessment of damage absent a settlement agreement. These proceedings seek to enforce a contract. Damages are being assessed for the purpose of ascertaining whether the amount agreed in the settlement included a "financial benefit", i.e. resulted in an outcome greater than that to which Mr Checchia was entitled. As a consequence, more than the settlement sum cannot be awarded.
137 Further, because one is ascertaining whether a financial benefit has been obtained and, if so, the amount of any such benefit, it may not be necessary to determine the level of damages, under some heads of damage, on a basis other than reciting, under that head, that which NRMA concedes is appropriate.
Damages
138 As earlier stated, when dealing with the nature of the injury suffered, I accept Dr Parkinson and the opinions he expressed, without qualification. On that basis, I would consider that the injuries and disabilities currently suffered by Mr Checchia were entirely caused by the 2003 accident.
139 Notwithstanding that finding as to current disabilities, there is a possibility, for which some account must be made, that the pre-existing 1993 injury, notwithstanding its outward resolution, might flare up and cause injury. It is most unlikely that the injury, in that hypothetical situation, would be the severity of that now suffered by Mr Checchia. Nevertheless, I would, in accordance with the principles in Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, take that possibility into account. On the material before me, it seems the possibility of the 1993 injury degenerating and causing problems is extremely low. There was no operation in or after 1993, as a consequence of the 1993 injury. Mr Checchia was also asymptomatic. There are two distinct issues.
140 Firstly, one must assess the likelihood of degeneration from the 1993 injury. For the purposes of transparency, I would assess that risk, in this case, as most unlikely and certainly as less than the risk of degeneration at an adjacent site following surgery and, therefore, at 10%.
141 Secondly, if there were to be degeneration, the likelihood of the problem so caused being of a kind that would prevent work, or prevent work to the same extent, must be assessed. I would assess that further risk (of it affecting work capacity), if degeneration were to occur, as between 30% and 40% and the probability of the 1993 injury affecting Mr Checchia's capacity to work (i.e. the combined likelihood of degeneration and consequential incapacity, partial or total) at between 3% and 4%. [Probability is usually expressed as a fraction between 0.0 and 1.0 representing, respectively, certainty of an event not happening and of an event happening.] I would account for these issues by increasing the allowance for vicissitudes to 20%.
142 The aforesaid rate of 20% for vicissitudes includes the discount rate to which s 127 of the Act refers. Otherwise, in terms of the assessment of damages for economic loss, it is necessary to pay regard to the provisions of Chapter 5 of the Act and, although it may be trite, I make clear that the damages, that I would otherwise assess, would not include the first five days (s 124 of the Act) and the earnings of Mr Checchia do not exceed $2,500 per week, so that the provisions of s 125 of the Act do not apply.
143 Given the evidence of Ms Mowad as to the value of Mr Checchia as an employee (Transcript page 657 line 36 et seq), and other evidence upon which one could base such an assessment, there is (with the exception to vicissitudes, to which reference has already been made) no reason to qualify the capacity of Mr Checchia as to his future earning capacity and, were it not for the fact that damages are not strictly an issue before the Court on the earlier findings, I would determine that the future earning capacity of Mr Checchia would accord with, at least, that which was being earned prior to the accident at QVB. The original award claimed $750 per week. I would assess damage on the basis of $650 to ensure a degree of conservatism in the assessment of damage, but make clear that a proper analysis of the evidence would give rise to a finding that the earning capacity would be higher, not lower, than the $650 to which I have referred: see the evidence of Ms Mowad at Transcript page 656 line 40.
144 In the discussion on the question of vicissitudes, I have already determined the amount of any such award and adjusted the amount (or given the basis in calculation for adjusting the amount) of future economic loss by reference to the percentage possibilities that the events concerned might have occurred but for the injury.
145 Likewise, the foregoing, and that which now follows, will state the assumptions on which the award would have been based and the relevant percentage by which the damages would have been adjusted. The current process is, to some extent, artificial. As earlier determined, the requirements of s 118 of the Act have not been established to the satisfaction of the Court, such that NRMA is relieved of its liability under the settlement. Further, even if the requirements of s 118 of the Act had been satisfied, it would be for NRMA to show the financial benefit that was obtained by the misleading and deceptive conduct. The process currently being undertaken is a process in which the Court is determining damages it would award, if the matter were proceeding by way of a personal injury claim under the Act, and the burden was on the plaintiff, subject to the earlier comment relating to assessing minimum amounts: see [137].
146 In ordinary circumstances, the assessment of damage under the Act would be calculated in accordance with Chapter 5 of the Act, and may not be calculated in any other way (s 123 of the Act). The relevant heads of damage applicable to Mr Checchia are non-economic loss (Part 5.3 of the Act, capped, in accordance with s 134), past out-of-pocket expenses, which amount to $166,700; future out-of-pocket expenses which, according to NRMA, would be no less than $67,685; past economic loss; future economic loss; superannuation related losses; past care (which according to NRMA is no less than $41,600); future care, either on a paid or voluntary basis, and special equipment.
147 In determining future economic loss, it is necessary for the Court to assess the most likely future economic circumstances that Mr Checchia would have enjoyed but for the 2003 injury. It is then necessary to compensate Mr Checchia for the difference between those most likely economic circumstances and the economic prospects that he "enjoys" as a result of the 2003 injury, including, if appropriate, the use of a buffer. It is necessary, as earlier stated, to allow for vicissitudes: see Kallouf v Middis [2008] NSWCA 61 at [7].
148 Mr Checchia was employed by Ms Mowad at the time of the accident. He was entitled to earn on average over $750 (nett) per week and there is an extremely high probability that, given her estimate of his earning capacity, he would continue to be employed. Ms Mowad (either through QVB Jet Café or other such establishments) had been in business for some time, and continues in business. The prospects of Mr Checchia's continued employment, on a full-time basis, earning amounts at least as great as that to which reference has been made, were extremely good and it was highly unlikely that he would not be employed on that basis, save for the matters that would otherwise be covered by vicissitudes, to which reference has already been made.
149 The genuineness with which Mr Checchia sought to obtain employment and return to work has already been noted. It has been a significant factor in the determination that Mr Checchia sought only that which was due to him as compensation for the injury that he had suffered. But that experience is also relevant to the issue of Mr Checchia's income earning capacity and to the assessment of future economic loss. It is clear, from Mr Checchia's medical history, that he was simply unable to continue to work as he had sought to do. As at 11 July 2006, Dr Bowers, qualified by NRMA, noted that Mr Checchia had been variously fit and unfit for work and that, at that date, he remained unfit for work. It is that report that refers to Mr Checchia's ability to return to suitable sedentary work for three-quarters of the normal hours expected.
150 Dr Bowers, having noted that Mr Checchia had undergone three operations on his back, made it clear that the only work that Mr Checchia could manage would be "suitable sedentary work". Reference has already been made to some of these comments. Such suitable sedentary work did not include any work, of which Dr Bowers was aware, in a busy city café. Dr Bowers made clear that a number of the assessments of work that might be available to Mr Checchia were inappropriate in circumstances of the history of treatment of his back and, as earlier noted, it mattered little whether Mr Checchia could walk, bend, drive, or the like.
151 Likewise Ms Mowad made it clear (see Transcript page 704 and 705) that she, as an experienced café proprietor, was unaware of any position that was generally sedentary and/or otherwise complied with the requirements that would be necessary to enable Mr Checchia to work. It would be impossible, it seems, on Ms Mowad's evidence, for an employer to provide seating arrangements even for a cashier. In her view (Transcript page 705) she would never have anybody employed who was sitting down, except patrons, and she would never put a seat behind the cash register.
152 Likewise, Dr Matheson restricted Mr Checchia's work capacity to sedentary or semi-sedentary work. He also made it clear that he faced the risk of further future operations on his back (Transcript page 639).
153 There is a point at which one must be practical about the capacity of an employee to obtain work in circumstances where the employer must be informed of the difficulties the employee will necessarily face in performing work. Even sedentary work would involve limitations. It would require breaks, because Mr Checchia cannot sit for an extended period of time. It would require restrictions on lifting and other work. It is difficult to imagine an employer taking on an employee with the kind of restrictions that Mr Checchia displays and voluntarily undertaking the risk of an aggravation of the injury, either through lack of ergonometric seating or the work requirements of even a sedentary position.
154 That is not to say that Mr Checchia does not have, hypothetically, an earning capacity. It does mean that, as a matter of practicality, his ability, after the 2003 injury, to obtain work of any substantial earning is, at best, minimal and probably non-existent.
155 As earlier stated, a future economic loss based upon $650 per week, as is suggested by Mr Gross QC on behalf of Mr Checchia, is an appropriately conservative figure, which takes account of the minimal earning capacity that, as a matter of practicality, Mr Checchia possesses.
156 NRMA submit that it may be possible for Mr Checchia to be self-employed, presumably in the catering and/or restaurant business. Firstly, there is no evidence that Mr Checchia is capable of running his own business. Secondly, such an undertaking requires significant capital input and involves a significant risk in terms of capital. Thirdly, and importantly, such a proposal is essentially irrelevant, unless there is a history of self-employment. If Mr Checchia were to establish a business, i.e. catering and/or restaurant, then, in the interests of that business, presumably the same decisions would be made as would be made by any other businessperson. In other words, such a business ought not employ a person with a predisposition to injury and who would be more concerned with the pain that he was suffering than with attending to the business at hand. In those circumstances, and even if employment or work were undertaken at the premises, the net effect would be that he would be earning only that which could be earned by an investment in the business, of the monies otherwise capable of being invested, and running a greater risk than if an employee, not susceptible to injury, were employed instead.
157 Lastly, I should comment that any assessment based upon the proposition that, but for the 2003 injury, Mr Checchia would need to retire from the restaurant industry at the age of 44 is simply unacceptable. There seems no reason why a person would need to retire at 44, unless they were suffering significant injury. Given my assessment of the lack of likelihood of any other injury, including a recurrence of anything arising from the 1993 injury, such an assessment cannot be accepted. Moreover, the likelihood of further injury and/or degeneration, arising from the 1993 injury, have been taken into account in the higher vicissitudes that have been used to calculate the level of damages.
158 I turn then to the question of personal care. Once more, I take an extremely conservative approach. I assume that the care would be voluntary care and I assess that it would be required for 12 hours per week, not 17 hours per week as claimed by Mr Checchia. Otherwise, I accept the reports of Ms Judith Davidson.
159 I referred earlier to the report of Dr Mills. Frankly, I consider Dr Mills to have been poorly briefed. Dr Mills relied, for his assessment, on a history that was supplied by NRMA's legal team. It seems that he did not access any documentation of the treating surgeons for that purpose. The briefing that was done by the legal team was oral, for which there are no notes. (See Transcript page 429.) Further, Dr Mills concedes that he made no real attempt to inform himself as to the clinical progress and presentation of the plaintiff as seen by his treating doctors before writing his report of 23 August 2005 (see Transcript page 425 line 40 and following).
160 There is no doubt, as all the medical practitioners, except perhaps for Dr Mills, concede, Mr Checchia suffers and has suffered significant injury. His incapacity is entirely or almost entirely a result of the 2003 injury. He has been, on any analysis of the evidence, in significant pain. His work life, his social life, his family affairs and his relationship with his family and friends have significantly suffered. While he is not entitled to non-economic loss at the highest level, he is entitled to a significant amount in non-economic loss and I assess that at $150,000.
161 As earlier stated, past out-of-pocket expenses have been incurred and they amount to $166,700. Utilising the future out-of-pocket expenses assessed by NRMA (the bottom of their range), that would be $67,685. I would, on the foregoing, calculate past economic loss (214 weeks up to 17 November 2008, the date upon which schedules were put to the Court) at $750 per week, being an amount of $160,500. The future economic loss I calculate to the age of 65 (utilising multiplier 822) at $650 per week which is $534,300 less vicissitudes of 20% giving an amount of $427,440. The nett economic loss (both past and future) amounts to $587,940, which figure, again as a matter of conservatism, I will use as the base for the calculation of superannuation losses, being the amount of $52,914.60 (at 9%). Superannuation is generally paid on gross wages and this figure significantly underestimates the amount of superannuation that would otherwise be payable (assuming that Mr Checchia earned the amount otherwise recorded "on the books").
162 Again, I would utilise the NRMA assessment, bottom of the range, for past care, which is an amount of $41,600 and for future care, as previously stated, I assess at 12 hours per week at $20 per hour (with a multiplier of 944.5), which calculates as $226,680. There is a need for special equipment, for which I allow $5,000. The total damage assessed at a minimum basis, as if Mr Checchia were required to prove damage and have it assessed, would therefore be $1,298,519.60.
163 In turn, that figure must be compared with the settlement. For obvious reasons, like must be compared with like. The settlement of $1,225,000, reached on 20 October 2006, included an amount of $40,000 in costs, as a consequence of which the damages aspect of the settlement amounted to $1,185,000, a figure less than the assessment of damage reached above. On that basis, even assuming there had been, in the misleading conduct, a purpose of obtaining a financial benefit, that purpose was not effected. Mr Checchia significantly compromised that which he could have obtained by way of damages, had the matter proceeded to hearing. Even if there had been misleading conduct for the purpose of obtaining a benefit, and if the true position (i.e. the position based on the true facts) would have resulted in an assessment lower than would have been the case if the facts represented were true, the true position is an amount greater than the settlement actually reached and NRMA is not entitled to relief from any part of the settlement.
164 This is not an unexpected or extraordinary result. The material before the Court makes clear that the claim was settled at a conference in circumstances where the claim by Mr Checchia was compromised in a bargaining situation. An examination of the legal advice received by NRMA before settlement (Exhibit 2 Tab 2) and the negotiated settlement discloses that the settlement is for an amount less than the sum total of each of the heads of damage in NRMA's advice, and it would therefore not be unexpected that the settlement figure reached was an amount significantly lower than (on the facts then known) would have been awarded, and, as it turns out, lower than the amount even on the true facts subsequently discovered.
Conclusion
165 Mr Checchia had no symptoms of his prior back injury between 1993 and the date of the motor vehicle accident in January 2003. As a consequence, even those doctors qualified by NRMA, which I accept on this question, concede that his impairment for the purposes of compensation under the Act is entirely due to the motor vehicle accident in January 2003 (Dr Matheson at Transcript page 641 line 45).
166 I have accepted that Mr Checchia was employed by QVB Jet Café and was earning on average $750 (nett) per week. Mr Checchia, however, misled NRMA as to the existence of a prior injury to the same area of the back. I have found that the misleading conduct was not done for the purpose of obtaining a benefit to which Mr Checchia was not otherwise entitled. Indeed, on the assessment of damage, I have determined that, had the matter gone to hearing, Mr Checchia, on the true facts, would have received more than that for which the claim was settled.
167 An issue arises as to the payment of interest. Interest on damages is regulated by the provisions of s 137(4) of the Act. However, the Court is not now dealing with an award of damages under the Act. It is dealing with the enforcement of a contract that settled the claim under the Act. In those circumstances interest would seem to be capable of being awarded in the ordinary way and would be calculated in accordance with s 100 of the Civil Procedure Act 2005, from the date the settlement monies were due, namely, 10 November 2006. That, however, is a preliminary view on which I will hear the parties, if they submit otherwise.
168 The requirements of s 118 of the Act have not been satisfied and NRMA have not established that the purpose of the misleading conduct was the obtaining of a financial benefit. Even if it were, no financial benefit has been obtained.
169 In those circumstances, the settlement, being a contract binding on the parties, is required to be observed and the Court makes the following orders: