"We will pay $42,000.00 per year as a Monthly Benefit of $3,5000.00 to the Policy Owner if the Life Insured, proof of whose age has not been supplied, suffers Total Disability.

Benefits will begin to accrue after a Qualifying Period of 30 days.

Benefit period will be to the benefit expiry date prior to age 65."

Clause 2.18 of the policy document provided , so far as is relevant, as follows:-

(a) you are not capable of doing the important duties of your regular occupation, and

(b) you are not working in any gainful occupation, and

(c) you are following the advice of a medical practitioner."

The plaintiff paid the monthly premiums due under the policy up until July 1993.

The plaintiff gave evidence that on 26 July 1993 he had an accident at work, as a result of which he allegedly suffered total disability within the meaning of the policy. The plaintiff said in evidence that while he was carrying a heavy gear box cradled in his arms "I slipped, fell backwards and then the gear box came down on my abdomen". The plaintiff felt excruciating pain - "I was just on fire like I could barely move". The plaintiff lay on his back for about ten minutes. He then rolled the gear box off himself and went inside the house, showered and lay down. Four days later, on 30 July 1993, the plaintiff first sought medical treatment when he consulted a local medical practitioner, a Dr Voon. Dr Voon subsequently referred the plaintiff to other medical practitioners.

At the time of the accident the plaintiff had three vehicles at his house for servicing by him. Between 26 July and 30 July, when he first saw Dr Voon, the plaintiff drove two of the vehicles to other "establishments" so that they could be serviced by those other establishments and he made arrangements for the towing of the third vehicle to another establishment for servicing by it. During this period of four days he cancelled all other work already booked in and he refused to accept any further work. The plaintiff said in evidence "the reason I off loaded those jobs as quickly as possible, I suppose, was because they (that is the customers) wanted cars done as quickly as they could".

On or about 19 August 1993 the plaintiff submitted a claim form to the defendant, claiming that he was suffering from total disability as the result of the accident. The plaintiff completed the claim form himself. In the claim form he wrote that he had been injured when he "slipped while carrying gear box and landed on tail bone/back in workshop". He wrote that his injuries were "numbness leg/sore back - shoulder bruising back area/shoulder + ribs". In answer to a question in the printed claim form "What has been your average nett income during the last twelve months? (Nett income means gross earnings less business expenses but before tax)", the plaintiff wrote "over $70,000".

The defendant initially accepted the plaintiff's claim. On 23 September 1993 the plaintiff received a cheque for $3,777.78 from the defendant and in November 1993 the plaintiff received a cheque for $3,375.01. No explanation was given in the evidence as to why the payments which were made were for these odd amounts but nothing would appear to depend on the amounts of the payments.

The plaintiff did not remain living in Canberra for long after the alleged accident. There was admitted into evidence copies of correspondence between a firm of solicitors in the Australian Capital Territory and the National Australia Bank. On 24 September 1993 the solicitors wrote a letter to the bank saying that they acted for the plaintiff and that the plaintiff was proposing to sell his property in Canberra. The solicitors continued "we note that the property is subject to mortgage 686103 to the Bank and we understand the Bank may well be looking to receive the proceeds of sale in consideration of the discharge of mortgage". The solicitors then asked that the bank give the usual information and consents which are sought in such circumstances. These were forthcoming and the sale of the plaintiff's property in Canberra was completed in about April 1994.

In cross-examination the plaintiff accepted that in about 1990 he had borrowed $90,000 or $95,000 from the bank, that in March 1992 he had borrowed a further sum of $38,000 from the bank and that in February 1993 he had borrowed a further sum of $58,000, this last borrowing being mainly to fund his legal costs of proceedings for custody of his children. The plaintiff also accepted that on two occasions he had applied for and had been granted overdraft accommodation by the bank. In one part of his evidence the plaintiff alleged that "the majority of my financial difficulty" arose between the date of the accident and 24 September 1993 but elsewhere in his evidence he conceded that in some months before the accident he was having trouble making repayments to the bank and I am satisfied that the plaintiff was having financial difficulties before the date of the accident.

The plaintiff moved from Canberra to Queensland. In his evidence in chief his own counsel put to him that in October 1993 he had moved to Queensland and the plaintiff answered "approximately yes". When asked by his own counsel why he had moved to Queensland the plaintiff said that he had been pretty depressed because he had hurt his back and "I have two boys. I want to see them on holidays". In a report of 4 December 1993 Dr Voon recorded that "on 12 October 1993 he (that is the plaintiff) was last reviewed before he migrated up north".

In cross-examination the plaintiff gave a strange answer "I didn't actually move out of New South Wales until three quarters of the way through 1994". He said that he had moved to Queensland only for the purpose of exercising access to his children who were living with their mother in Queensland. Counsel for the defendant put to the plaintiff:-

"Do you agree in October 1993 you went up to Queensland with the intention of living there permanently?" to which the plaintiff replied, "in the back of my mind, I suppose, from what everybody was telling me that I thought that they might be right".

I am satisfied that in October 1993 the plaintiff, having taken steps to sell his house in Canberra which was heavily mortgaged, moved to Queensland where his children were, with the intention of living there permanently.

The second payment made by the defendant to the plaintiff, was recommended by a Ms Sazdanovska, an employee of the defendant, who gave evidence for the defendant at the hearing. Ms Sazdanovska said that in recommending the payment she relied on the accuracy of the information which had been supplied by the plaintiff to the defendant about his nett income. I accept Ms Sazdanovska as a reliable witness and I accept the extensive contemporaneous notes she made as being accurate.

On 2 November 1993 the plaintiff telephoned the defendant and spoke to Ms Sazdanovska. Ms Sazdanovska made a note that the plaintiff said that he had sold his house and that he had a current temporary address at a flat at Coolangatta, Queensland. Ms Sazdanovska made a note for her own use that she had previously attempted to contact the plaintiff by telephone and had found that both his home and business telephone numbers had been disconnected. Ms Sazdanovska made a further note of her concern that the plaintiff had sold his house and apparently closed his business.

On 17 November 1993 the plaintiff spoke to Ms Sazdanovska on the telephone. Ms Sazdanovska made extensive notes of the conversation. The plaintiff said that he was unable to supply financial information which was being requested by Ms Sazdanovska, because his accountant had all his records and was on holiday. Ms Sazdanovska noted "I asked him if his business was generating a profit and he said, 'Yes' and that he should have really been insured for $6,000 p/m".

On the following day 18 November 1993 the plaintiff telephoned Ms Sazdanovska. According to Ms Sazdanovska's note "he said his mother had some bank statements showing his income. He will fax them to us when he receives them". Ms Sazdanovska noted inter alia "today he told me that he was living off $42 per week whereby (sic) yesterday it was $82 per week". Ms Sazdanovska also noted "he said he was definitely under insured but he couldn't pay the higher premium to be insured for his correct amount which was $6,000". Ms Sazdanovska noted:-

"I said we still require the financial information and for him to send in his bank statements. He said he'll send in the bank statements and then chase it up from there".

On 9 March 1994 Ms Sazdanovska on behalf of the defendant wrote a letter to the plaintiff stating that "there is insufficient medical evidence to support your current disability" and that the defendant was unable to admit further liability.

Since the accident the plaintiff has been seen by a large number of doctors.

I have already indicated that the first doctor the plaintiff saw after the alleged accident was a general practitioner, Dr Voon. In a report of 4 December 1993 Dr Voon stated that he had seen the plaintiff on 30 July, 4 August, 6 August and 12 October 1993. Dr Voon referred the plaintiff to a Dr Bell for an ultra sound of the upper abdomen and x-rays of the chest, the thoracic spine and the lumbar spine. These investigations disclosed no evidence of any abnormality. Dr Voon also referred the plaintiff to a Dr Booth who reported that a bone scan performed on 5 August 1993 disclosed no evidence of any bony abnormality in the ribs or the thoracic, lumbar or sacral spine. A CT scan of the lumbar spine performed on 10 August 1993 was the subject of a report by Dr G Brook as follows:-

"CT scan lumbar spine: The last three discs were scanned, each in a stack with appropriate gantry angulation.

L3/4: There is very minor bulging of disc margin into the right exit foramen as seen on scans 5 and 6. However the nerve root is exiting normally at a superior level and is unlikely to be affected by this lesion. Schmorl's nodes are noted.

L4/5: There is minor prominence of the posterior disc margin at this level. The disc otherwise appears normal. Exit foramina are well preserved.

L5/S1: The disc appears normal and exits foramina are well preserved. There may be conjoined roots on the left at this level. These are of no significance. Posterior articulations are unremarkable at each level".

"In conclusion, Mr Boekenstein has post-traumatic right shoulder rotator cuff syndrome and lumbar disc lesion. In the presence of structural damage, his prognosis should be guarded at this stage. It would be difficult for him to work in his full capacity as a motor mechanic without a prolonged period of back strengthening exercises. It is highly probable for him to go back to his job with proper muscular training programme".

To the extent to which Dr Voon's assertion that the plaintiff had a lumbar disc lesion is based on Dr Brook's report, that report uses the words "minor" or "very minor" and doctors more highly qualified than Dr Voon who later examined the CT scan considered that it was normal.

Dr Voon furnished a further report of 20 November 1996, in which he said that a detailed examination of his clinical notes had failed to reveal any record of bruising on the plaintiff's body when he examined the plaintiff on 30 July 1993. The plaintiff asserted in his evidence that he suffered extensive bruising as a result of the accident. Dr Voon said in his further report that the absence of any such record of bruising in his clinical notes could be due to the plaintiff not having suffered any bruising or to bruising which the plaintiff had suffered having disappeared by the time of the consultation. I consider it improbable that, if the plaintiff had suffered extensive bruising on 26 July, that bruising would not have been visible on 30 July and would not have been observed and noted by a medical practitioner examining the plaintiff.

The plaintiff was seen in Queensland in January 1994 by Dr Peter Dodd, an orthopaedic surgeon, to whom the plaintiff was referred by his general practitioner. Dr Dodd's report of 11 January 1994 to the referring doctor included the following passages:-

"I saw him on 10th January. There was certainly a functional overlay to his symptomatology and presentation. Clinical examination indicated he was tender at T9/10 although had good spinal mobility. He had slight restriction of straight leg raising on the left.

I have had a look at all the investigations to date including a couple of C.T. Scans and a bone scan. I think these are all normal.

I think there is a lot more than meets the eye here. As far as his injury at work he is having a battle with an insurance company, his marriage has broken up and his house has been sold in Sydney, his girl-friend has recently left him, the bank is after him and he owes rent on the flat he is occupying. I do not know whether I can help him greatly. I appreciate he probably has had a significant soft tissue injury at T9/10 and I guess strictly speaking the disability insurance company should pay for his time off work. I do not believe he will be left with any permanent disability and I think he needs to be rehabilitated to get him back into the workforce. He was earning in excess of one hundred thousand dollars a year and hopefully he has the motivation to try to get back to work in the not too distant future."

In a report to the defendant of 7 February 1994, which was also based only on the consultation of 10 January 1994, Dr Dodd generally repeated what he had said in his report of 11 January 1994. Dr Dodd said, "there was some limitation of movement which might have been voluntary...he does not appear to be permanently damaged...(he) should be able to return to all work duties".

In January 1994 the plaintiff was also seen on behalf of the defendant, by Dr James Downes, orthopaedic surgeon. The concluding opinion in Dr Downes' first report of 20 January 1994 is as follows:-

"I find these types of cases nearly impossible to comment on. When one sees cases like this the first thing one is forced to do as a doctor, is to perhaps produce a clear cut diagnosis. I certainly cannot do this. The type of injury that this lad had would certainly have jarred the facet joints of his spine. The injury too would have raised the intra-abdominal pressure.

However one should recover from the effects of raised intra-abdominal pressure leaving no sequelae. In a person of this fitness and age jarring of the facet joints should also not cause prolonged distress of this nature.

In these circumstances where one does not have a diagnosis, you really then only have two options.

Either you are dealing with a person who has a profound functional overlay to their problems, or you are dealing with a genuine person in which the diagnosis cannot be made and here one has to use one's experience of people over a long period of practice to perhaps help in assessing which of the two it is.

Despite my comments above, I believe this man is genuine. After thirty years of practice I have a feeling about people that we all get, and whilst one still gets taken at times, my gut reaction is that this man is not overstating his case.

The case worries me because I feel he needs a bone scan. The chances of this man having a stress fracture of the pars articularis not showing up on xray is quite high. Such stress fractures don't always show up on CT scans or plain xrays and the only reliable test of them is a bone scan.

However even if the bone scan came back as normal we are still in the situation of knowing what to do with this man. It is very hard as a specialist for me to say that someone is disabled when I cannot find anything wrong with them. My experience over thirty years teaches me that in most cases there usually is not anything wrong with them. This man would represent an exception to my normal rule.

There is no good however in asking me what the cause of his pain is because I don't know. It certainly is not because his spine is out of alignment and I certainly would not be in favour of him spending his money on chiropractics. I don't believe physiotherapy will help him and I believe the advice he obtained from Dr Dodd that nature has to cure him with time is the correct one. The only exercise programme he could do is the one he could do himself such as swimming etc.

For what it is worth I recommend that this man have a bone scan and I will arrange it for you if you wish. I also point out to you that at the present time this man says he is in a lot of pain which precludes him from working. On this basis he is unfit for work.

I do point out that I cannot correlate the symptoms with the signs and an explanation of this intense pain is not forthcoming. I am going to have to ask you to trust my assessment of him at the present that he has a genuine low back pain as opposed to a functional back pain.

It is a very difficult case and I would be interested to see this bone scan. The patient feels he cannot afford a bone scan at the present time".

It will be observed that in this report Dr Downes, while finding the case a very difficult case, was prepared, contrary to his "normal rule" based on 30 years of experience, to believe that the plaintiff was genuine in his complaints of pain. However, in a much later report of 26 November 1996, prepared after Dr Downes had seen a bone scan of the plaintiff, which he considered to be normal, Dr Downes expressed the following opinions:-

"The bone scan further leads me to the conclusion that there is no serious pathology in this man's spine. It increasingly raises the possibility that his present symptomatology is not related to an organic aetiology but to a psychosocial one.

I am not prepared to accept a patient's subjective symptoms at face value when the physical findings and all the investigations reveal no abnormality".

"You would see from my previous report that subjectively Mr Boekenstein stated that he could not (perform the most important duties of his pre-injury occupation as a mechanic). Objectively I cannot explain his disability and on an objective basis I can see no reason why he is impaired or disabled whatsoever".

Dr Giblin, orthopaedic surgeon, saw the plaintiff initially on 15 March 1994. The plaintiff complained to Dr Giblin of pain in the lower thoracic spine which was intermittent and pain in the lumbar spine which was constant. Dr Giblin expressed the opinion that the plaintiff had a facet joint dysfunction. In a letter of 22 July 1994 Dr Giblin expressed the opinion that the plaintiff was for the time being incapacitated from performing the important duties of his regular occupation.

Dr Giblin saw the plaintiff again on 21 August 1995. The plaintiff complained that every month he got acute back pain, which took two to three weeks to settle. Dr Giblin noted that the plaintiff "moved around the room guardedly". Straight leg raising was 90deg. bilaterally "with no significant peripheral neurological signs". In Dr Giblin's opinion the plaintiff had a soft tissue injury to his thoracic and lumbar spine and would not be able to return to his pre-injury occupation. On 15 October 1996 Dr Giblin saw the plaintiff again. In his report following that consultation Dr Giblin stated that his opinions remained the same as in his previous report.

The defendant's legal advisers gave notice that Dr Giblin should attend Court for cross-examination. However, it was impracticable to secure his attendance at court and hence the hearing concluded without his having been cross-examined.

The plaintiff was seen on behalf of the defendant by Dr Sturrock, orthopaedic surgeon, on 8 August 1994. On examination Dr Sturrock found:-

""On examination he is a well built man, weighing 87kgs. and six foot one inch tall. He adopted a funny and peculiar posture at first, hunching up his left shoulder and lowering his right but, in fact, when he relaxed he stood with a normal posture and had a normal thoracic and normal lumbar curve. He could walk on his toes and on his heels. He had a full range of movements of his neck in all directions and full movements of both upper limbs. He had no suggestion of any wasting of the muscles of his right shoulder girdle and there was no evidence of any wasting of the muscles of his upper limb. He had an excellent range of movements of his lumbar spine, being able to bend down with the finger tips near the ankle level. He tilted normally to either side. On the examination table he had straight leg raising through a full range. There was no suggestion of any wasting of the muscles of his left thigh or leg and he had very weak muscles of his belly and back although his weakness was more apparent than real as I just think he did not want to use the muscles. His lower limb reflexes were hyperactive as were his upper limb reflexes."

Dr Sturrock considered that the investigations of the plaintiff's spine revealed no definite abnormality. Dr Sturrock was "sure" that the plaintiff did not have any problem with the facet joints. Dr Sturrock concluded:-

"This man gives a history of falling whilst carrying a heavy gearbox. His present symptoms are not those that could be associated with trauma that occurred twelve months ago. In fact, most of his symptoms are quite bizarre and there is no doubt that he is very introspective about his condition. He has been told that it might be due to this or that condition but I am quite sure, in my own mind, that there is no evidence that he is suffering from ill effects of this one incident that occurred on 26th July, 1993. He is of a good strong physique and I can see no reason at all why he should not be able to resume his normal work. He obviously has some emotional problem and whether this can be related to his divorce and the fact that his children live in another state, I do not know. As far as his home address is concerned, he told me he lives for a time here and for a time there and then moves on. His general life is certainly unstable and I am sure it is not due to the alleged injury of 26th July, 1993."

The plaintiff was seen for medico/legal purposes on 21 August 1995 and 17 October 1996 by Dr Richard Evans, a consultant physician. Reports by Dr Evans of 24 August 1995 and 17 October 1996 were admitted into evidence and Dr Evans gave oral evidence at the hearing. Counsel for the plaintiff relied heavily on Dr Evans's evidence. Parts of Dr Evans' first report of 24 August 1995 are as follows:-

"Dr Giblin considered that CT scans of the affected areas were normal, as was a radionuclide bone scan. He therefore arranged for facet joint arthrograms, and injections into the facet joints with cortisone/local anaesthetic. He had injections at the T11, T12, L1, L4/5 and L5/S1 levels and Dr Giblin felt that the result was very good; Mr Bokenstein felt that they helped only for about two days. Dr Giblin therefore arranged facet joint rhyzolysis (more permanent destruction of the nerves to the facet joints) but the insurance company would not pay for these. He concluded that Mr Bokenstein suffered from facet joint dysfunction".

"He is looked after only by his local doctor, Dr B Legg. He doesn't have tablets for the pain, doesn't have physiotherapy or chiropractic treatment, doesn't do exercises for the back, doesn't wear a surgical corset, and doesn't use a TENS machine".

"He stood with some flattening of the normal lumbar lordosis. Movements of the lumbosacral spine could not be separately assessed, as overall back movements were so much reduced".

"The circumference of the left thigh was 1.3 cm less than that of the right, consistent with quite minimal wasting of the muscles of the left thigh; the differences from normal were so small as to be of doubtful significance. There was no wasting of the muscles of the left calf (whose circumference was 1.0 cm less than that of the right)."

"Straight leg raising was 40deg. right 30deg. left (normal 80-90deg.), the discomfort being felt in the back. He complained of pain when the hips were flexed to only slightly greater angles even with the knees also flexed (Lasegue technique) suggesting perhaps a little over-reaction".

"A CT scan of the lumbosacral spine (10 August 1993) showed some posterior bulging of both the L4/5 and L5/S1 intervertebral discs (the discs in these films did not appear to me to be normal.)".

"An MRI scan of the thoracic spine (27 April 1995) showed evidence of disc degeneration at the T8/9 level, with reduced signal intensity and some narrowing of the disc space. There was also a small disc extrusion, though it did not extend to the spinal canal. An MRI scan of the lumbosacral spine (28 April 1995) showed reduced signal intensity, reflecting degeneration, at the L4/5 and L5/S1 levels, with a mild bulge at the L4/5 level, but not at the L5/S1 level. The left L5 and S1 nerve roots were contiguous, and probably conjoint. There also appeared to be mild disc bulging at the L3/4 level, but this signal intensity there was normal. (Only the report of these films have been seen, the films themselves being retained by the Royal Brisbane Hospital).

DIAGNOSIS. On 26 July 1993 Mr Bokenstein appears to have suffered a very substantial injury when he slipped and fell backwards whilst carrying a 70kg gearbox which then impacted on his abdomen. He immediately developed pain in the thoracic and lumbosacral spines, the low back pain radiating to the left leg. It is most likely that, at the time of this accident, he suffered damage to the T8/9 intervertebral disc in his back and perhaps also the L4/5 and L5/S1 discs. He thus suffers pain and stiffness in the back as a direct result of the disc damage, and pain in the left leg as a result of irritation of probably the left L5 nerve root (it is noted that the reporting radiologist felt that the MRI scan showed the L5 and S1 nerve root on the left to be conjoined, rather than the appearances to suggest a swollen nerve root).

The accident appears to have had a quite catastrophic effect on Mr Bokenstein's career. Prior to it, he was a mechanic servicing expensive luxury cars, whereas he is now virtually destitute, living himself in a car, and having no means of support. He has also had to cease playing his sports. Not surprisingly, he has become a bit depressed, but has not sought treatment for this. His back stiffness was very much worse than is normally seen with these sorts of problems, suggesting the possibility of some over-reaction, doubtless related to the depression. The straight leg raising also suggested some over-reaction.

FITNESS. Mr Boekenstein is not fit for his previous occupation of Motor Mechanic, as a result of the injury of 26 July 1993. He would be fit for light work, not requiring much bending or twisting of the back, or lifting of weights heavier than 5kg.

PROGNOSIS. He is likely to continue to experience pain in the thoracic and lumbar spines, and pain radiating to the left leg".

In his report of 17 October 1996 Dr Evans noted that the plaintiff reported that his thoracic pain had become worse, while the lumbar pain had not changed. Dr Evans' second report includes the following passages:-

"...there was something of an air of agitation and distress when he described his symptoms, presumably related to the depression. There was a rather equivocal impression of slight overreaction of physical examination, but no definite evidence of it".

The circumference of the left thigh was 1.8cm less than the corresponding area of the right thigh, reflecting mild wasting of the muscles of the left thigh."

"Straight leg raising was 30deg. right 20deg. left (normal 80-90deg.), the discomfort being left in the back; he complained of pain when the hips were flexed a little more with the knees also flexed (Lasegue technique) an equivocal response".

In this report Dr Evans expressed a similar diagnosis to the diagnosis offered in his earlier report. Dr Evans continued:-

"Not surprisingly, he has become a bit depressed, but has not had treatment for this. The depression may perhaps have led to some overreaction, and, as mentioned, the back stiffness was a good deal worse than is normally seen with these sorts of problems. However, there is good objective evidence of damage to his back at the relevant levels (the MRI scans), and also mild wasting of the muscles of the left thigh, consistent with the left leg pain. There are thus significant ongoing physical problems.

FITNESS. Mr Boekenstein is not fit for his previous occupation of motor mechanic. He would be fit for light work, not requiring much bending or twisting of the back, of lifting of weights heavier than 5kg.

PROGNOSIS. He is likely to continue to experience pain in the thoracic and lumbar spines, and pain radiating to the left leg."

Dr Evans was cross-examined about the clinical test of straight leg raising performed on 21 August 1995. Dr Evans explained that the raising is a passive movement by the patient when the doctor lifts the patient's leg while the patient is lying down. The technique used by Dr Evans includes telling the patient to say when the movement of his leg hurts the patient. Dr Evans stopped raising the patient's leg because the plaintiff said that the movement was hurting him. Dr Evans found on 21 August 1995 that the plaintiff's right leg could be raised only to 40deg. and his left leg only to 30deg.. Dr Evans was cross-examined about the fact that on the same day Dr Giblin had also seen the plaintiff and had found that straight leg raising was to 90deg. for both legs with no significant peripheral neurological signs. Dr Evans said that he could not understand how on the same day another doctor had raised both the plaintiff's legs to 90deg.. Dr Evans accepted that if Dr Giblin had raised both the plaintiff's legs to 90deg. without the plaintiff experiencing pain, the only explanation for the inconsistent results obtained by himself and Dr Giblin was that the plaintiff was malingering. In re-examination he did not accept a suggestion put to him by the plaintiff's counsel that the different times of the day on 21 August 1995 that he and Dr Giblin had seen the plaintiff could explain the very different results the two doctors had obtained on straight leg raising.

Dr Evans was also cross-examined about his findings that the plaintiff's back movements were much reduced, compared with Dr Sturrock's findings in August 1994 that the plaintiff had had an excellent range of movements of his lumbar spine. Dr Evans thought that there were three possible explanations:-

(i) That there had been a change in the plaintiff's condition between August 1994 and August 1995, an explanation which he accepted was unlikely, having regard to the history given by the plaintiff.

(ii) That Dr Sturrock had been "unkind" in administering the clinical test, or

"Q. So in terms of whether or not we accept that Mr Boekenstein is in fact disabled, physically disabled as he claims, we are, are we not, entirely dependant upon the veracity of his alleged symptoms as he tells us?" to which Dr Evans replied:-

A. Not entirely because although the MRI is compatible with having no symptoms, when you find; when you get findings like that in somebody only 38 years old and the MRI findings correspond to the clinical symptoms, then the probability that they are related becomes very much higher".

"Q. Yes but still at the end of the day it is possible, is it not, for that patient to be pulling the wool over our eyes and we are dependant on what they tell us?

In re-examination Dr Evans said that he did not accept that the patient was malingering and that in his opinion it was more likely than not that the patient had a very significant problem with his back.

Dr Ireland, orthopaedic surgeon, saw the plaintiff on behalf of the defendant on 14 November 1995. Parts of Dr Ireland's report include:-

"Straight leg raising was to 45 degrees on the right, he said this hurt his low back. At 60 degrees on the left he said this hurt in the low back but there was no evidence of stretch irritability, the reflexes were normal, power was normal, the thighs were equal in girth the calves were equal in girth".

"He showed me a report from a Brisbane Hospital dated 28/4/95 this is of an MRI test it states that this shows minor narrowing of the T8/9 disc. There is said to be some dessication of the disc at that level and some small disc extrusion is said to be present at that level. There is no compression of the spinal cord and no significant narrowing of the canal. An MRI report of that date of the lumbar spine was shown to me, this states that there is mild generalized bulging at L3/4 and L4/5 level but at lumbo sacral level no significant disc bulge. It is stated that there is evidence of a conjoint nerve root on the left side of L5/S1 level."

"The thoracic spine he states is the site of his main pain. I have not seen the MRI test but it does not suggest that there is any major problem."

Dr Bentivoglio, orthopaedic surgeon, saw the plaintiff on behalf of the defendant on 15 November 1995. In his report Dr Bentivoglio expressed inter alia the following opinion:-

"It is probable that this gentleman sustained some degree of damage at the T8/9, L4/5 and L5/S1 levels of his lumbar region as a result of the incident at work which he described. On today's physical examination there is no evidence of any ongoing disability that I can detect".

"I believe that he should be capable of performing most of his pre-injury duties as a mechanic but he may not be capable of performing all of these duties. There are some signs on physical examination today that this gentleman is exaggerating his complaints".

The plaintiff was also seen by Mr Borenstein a psychologist and I have taken into account Mr Borenstein's report and also Mr Borenstein's oral evidence.

The principal issues to be decided in the proceedings are:-

1. Whether an accident occurred as alleged by the plaintiff?

2. If so, whether the plaintiff was rendered totally disabled and has continued to be totally disabled?

3. Whether the defendant validly avoided the policy on the grounds of fraudulent non-disclosure or fraudulent misrepresentation?

Before I deal with any of these issues, it is appropriate that I record my assessment of the reliability of the plaintiff as a witness. I have already referred to what I have described as a strange answer given by the plaintiff about when it was that he moved to Queensland and there were other strange answers given by the plaintiff in his evidence. It also appeared to me that the plaintiff was less than frank in his evidence about such matters as the financial difficulties I am satisfied he was subject to before the date of the alleged accident and the circumstances in which the house in Canberra was sold. I also take into account the opinions of the doctors, even those inclined to be more sympathetic to the plaintiff, that the plaintiff when being clinically examined exhibited "over reaction" or that he was "guarded" or "equivocal" or "voluntary" in claiming that he was restricted in his movements. I accept that he told Ms Sazdanovska one day that he was living on $82 per week and that the next day he told her that he was living on $42 per week. So far as demeanour is concerned, the plaintiff's demeanour in the witness box was strained and unusual. I have concluded that I should have serious reservations about the plaintiff's reliability as a witness.

It is convenient to deal with the third issue first, because if I consider that the defendant should succeed completely on this issue, that would determine the result of the case.

Whether the defendant validly avoided the policy on the grounds of fraudulent non-disclosure or fraudulent misrepresentation.

It was contended on behalf of the defendant that the plaintiff had fraudulently failed to disclose to the defendant before the contract of insurance was entered into, that the nett income of his business as an automotive mechanic during the last twelve months before the application, after taking into account the expenses of the business, was approximately $40,000 and that the plaintiff had fraudulently represented to the defendant in the application supplement that the nett income of his business during the last twelve months, after taking into account the expenses of the business, was $60,000. It will be convenient to refer to the nett income of the business after taking into account the expenses of the business as the "nett income" of the business.

It was submitted on behalf of the defendant that the non disclosure and the misrepresentation which were contended to be fraudulent had occurred as part of a fraudulent scheme which had already been formulated by the plaintiff before he applied for the policy of disability insurance, that he would obtain disability insurance with the benefits at a higher level than he was entitled to and then fraudulently make a claim on the policy. However, it was also submitted that, even if I was not satisfied that the plaintiff had already formulated such a scheme, nevertheless I should still be satisfied that the non disclosure and misrepresentation were fraudulent.

It was common ground at the hearing that the contract of insurance between the plaintiff and the defendant was a "contract of life insurance" for the purposes of the Insurance Contracts Act 1984 (see s11(3) and (5)) and that Pt4 of the Act headed "Disclosure and Misrepresentations" was applicable, including ss21, 26, 29, 31 and 33.

It was not disputed at the hearing that the nett income of the plaintiff's business during the previous twelve months was a relevant matter within s21(1) and s26(2) of the Act, nor that the only disclosure or representation made by the plaintiff on that matter was the statement in the application supplement that the plaintiff's nett income during the previous twelve months had been $60,000. Nor was it disputed by counsel for the plaintiff that the nett income of the business during the twelve months from February 1992 to February 1993 was no greater than approximately $40,000. The conclusion of a partner of Price Waterhouse, accountants, who prepared a report which was admitted into evidence and who was not required to attend for cross-examination, was that, on the assumption that certain profit and loss accounts prepared by the plaintiff's accountant could be relied on, then "in my opinion it would not be unreasonable to draw a conclusion that the nett profit for the relevant period was not materially greater than $40,000 and possibly less". Consequently, subject to one submission made on behalf of the plaintiff, there was no dispute that the plaintiff had breached the duty of disclosure under s21 of the Act and had made a misrepresentation on a relevant matter in connection with the proposed contract of insurance before the contract of insurance was entered into. The one submission which was made on behalf of the plaintiff on these aspects of the case, was that, although the statement in the application supplement about the plaintiff's nett income was untrue, nevertheless the statement should not be held to be a misrepresentation, by reason of s26 of the Act, in that (it was submitted) the statement was made on the basis of a belief which the plaintiff held, being a belief that a reasonable person in the circumstances would have held. I will return to this submission later in this judgment. At this stage I will note that, even if the submission is well founded, it would not assist the plaintiff in relation to his breach of the duty of disclosure under s21 of the Act.

Section 29 of the Act provides that if an insured person failed to comply with the duty of disclosure under s21 or made a misrepresentation to the insurer before the contract of insurance was entered into, then "if the failure was fraudulent or the misrepresentation was made fraudulently the insurer may avoid the contract". I am satisfied that s29(1)(c) does not apply in the present case. In its letter of 9 March 1994 to the plaintiff the defendant did not purport to avoid the contract and merely said that the medical evidence did not establish that the plaintiff was disabled. However, at the hearing it was accepted that the defendant had purported to avoid the contract, if not earlier, then at least by the filing of its defence in these proceedings in which it asserted an entitlement to avoid the contract of insurance by reason of the plaintiff's fraud.

In insurance law a representation is fraudulent if it is made with knowledge of its falsity or with reckless indifference as to whether it is true or false. See MacGillivray and Parkington on Insurance Law (8th ed 1988) at para 570D; Australia and New Zealand Insurance Reporter para 7-080.

The standard of proof of fraud in a civil case is the civil standard of proof. However, in deciding whether fraud has been established a court is required to take into account (a) the nature of the defence of fraud (b) the nature of the subject matter of the proceedings and (c) the gravity of the matter alleged (see Evidence Act s140(2)), See also Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. As MacGillivray and Parkington state at para 570D -"Fraud is a serious allegation which must be clearly substantiated, and must not be confused with carelessness, however gross that may be".

Earlier in this judgment I referred to the uncontested evidence that the application and the application supplement were completed on 8 February 1993, that the handwritten information in both printed forms was written by Mr Browne and that there was a conversation between Mr Browne and the plaintiff at the time the forms were being completed. I also set out the terms of the item "Income Details" in the application supplement. It is now necessary to refer in more detail to the evidence of the plaintiff and Mr Browne about what happened when the two forms were filled in.

In cross-examination the plaintiff agreed that on 8 February 1993 Mr Browne wrote on the forms, as the plaintiff answered questions put to him by Mr Browne. In regard to the Income Details item in the application supplement, the following questions and answers occurred in the plaintiff's cross-examination:-

"Q. Mr Browne, in fact, asked you, didn't he, what your income had been during the last 12 months after taking into account business expenses?

Q. And you understood by that, didn't you, that meant how much you received from the business by way of receipts after you took into account all your business expenses?

Q. What did you understand he meant when he asked you what your income was?

A. I said I wasn't quite sure and we took an average over how much money we had banked because he actually was sharing the house with me at the time and we took an average over how much I banked and we worked it out off that.

Q. So the figure of $60,000 was inserted, to your knowledge, in the document, wasn't it, as representing your income over the last 12 months?

Q. And you say, do you, that that $60,000 represented what you had banked over the last 12 months?

Q. And those were moneys that you received from your customers?

Q. Now, in fact out of that sum you would have had to have paid certain expenses, wouldn't you, to conduct your business?

Q. And so after you took into account the business expenses in the last 12 months, would you agree that you would have been left with no more than an absolute maximum of $40,000?

Q. And could I suggest that it was more likely that after you had taken into account business expenses you would have been left with something more in the order of $30,000 to $35,000 over the last 12 months. Would you agree with that?

A. No, I worked at home. I had what was normally a business expense somewhere else, because I worked from home some of that stuff had to be charged up to me".

The plaintiff said that, at the time the forms were filled in, his understanding was that he was being asked what his gross income was. The plaintiff agreed that at the time he understood that "there was a difference between your takings from the business and your taxable income".

Mr Browne in his evidence said that before 8 February 1993 the plaintiff told him that the agent who had arranged income insurance for the plaintiff with the A.M.P Society had left the insurance industry. "He told me that his income figure with A.M.P wasn't correct and he wished to put in an application with Tyndall for income replacement". Mr Browne said in his evidence that on 8 February 1993 he read aloud to the plaintiff the full question about Income Details in the application supplement and that the plaintiff said his income was $60,000. Mr Browne asked, "are you sure that represents your personal income, Phil. It doesn't cover business expenses. You may be audited on a long-term claim". The plaintiff did not change his answer. Mr Browne said that he wrote $60,000 in the application supplement, feeling that that was a "fair figure", having regard to what he knew of the plaintiff's lifestyle. Mr Browne denied that he and the plaintiff had together worked out a figure, based on what the plaintiff had banked. Mr Browne said "Phil had had insurance dealings with me since 1980 and he has had these types of policies before and I explained again during this instance that the figure that's put down in there must represent your taxation figures".. "We had covered it before with the Prudential Insurance Company, for example, when I insured his personal income in the early to mid 80s and exactly the same conversation arose and I think at that stage his gross income might have been 200 odd thousand, but his personal income that he paid tax on was around 40 or 50, so we had been through this process before".

After taking into account the criticisms made by counsel for the plaintiff of Mr Browne as a witness, including the criticisms based on a criminal conviction for fraud against Mr Browne and Mr Browne's obvious interest as a continuing agent for the defendant in giving evidence favourable to the defendant, I have nevertheless concluded that I should prefer Mr Browne's evidence, where it is in conflict with the plaintiff's evidence. Leaving aside for the moment the question of whether the plaintiff understood the question in the application supplement about Income Details, I am sure that Mr Browne as an experienced insurance agent did and I consider it inherently likely that he would have told the plaintiff that business expenses had to be deducted in order to arrive at the figure to be inserted in the application supplement. If, as the plaintiff asserted in his evidence, he told Mr Browne that he was not sure what the question meant, then I am satisfied that Mr Brown would have given an adequate explanation of what the question meant. It is inherently improbable that Mr Browne would himself have determined a figure, or would have joined with the plaintiff in determining a figure, simply by averaging bank deposits of takings of the plaintiff's business, which would necessarily show only the gross income of the business. I note that the bank documents which the plaintiff and Mr Browne were alleged by the plaintiff to have used in arriving at the figure inserted in the application supplement were not produced at the hearing. I also take into account the conclusions I recorded earlier about the plaintiff's credibility as a witness.

The plaintiff asserted that on 8 February 1993 he did not understand that he was being asked what he received from the business after taking into account the expenses of the business and that his understanding was that he was being asked what his gross income was. I do not accept this evidence by the plaintiff. I have found, as Mr Browne testified, that Mr Browne read the whole of the question to the plaintiff and the question makes plain that the figure for income to be inserted was the amount of the income earned by the business less necessarily incurred business expenses.

As the plaintiff conceded, he did understand as at 8 February 1993 that there was a difference between the gross takings of the business and its taxable income. Even though the plaintiff had not been diligent in lodging income tax returns or having financial statements prepared, he could hardly have avoided making this concession. He had carried on a business on his own account for two extended periods between about 1980 and about 1986 and then from about 1988 to February 1993 and would necessarily have been very familiar with the distinction between gross income and nett income. Evidence given by him indicated that he was aware of the advantage in carrying on his second business of working from his own home and thereby avoiding the usual business expense involved in leasing premises for a business.

I am accordingly satisfied that the answer in the Income Details item of the application supplement was made by the plaintiff with knowledge of its falsity.

There was other evidence at the hearing fortifying this conclusion.

There was admitted into evidence as part of Exhibit 6 an Australian Taxation Office form completed by the plaintiff in his own handwriting, apparently at some time after 30 June 1990 but prior to 8 February 1993. In this form the plaintiff wrote $40,000 as being his nett business income. In this form the expression "Nett Business Income" was defined as being gross business income less allowable tax deductions. In the same form the plaintiff wrote his nett business income for the years ended 30 June 1986, 30 June 1987, 30 June 1988, 30 June 1989 and 30 June 1990 as being $25,000, $30,000, $30,000, $35,000 and $35,000 respectively. The entries made by the plaintiff in this form show a familiarity by the plaintiff with the distinction between gross income and nett income after expenses and the figures supplied by the plaintiff, assuming a gradual improvement in the results of the plaintiff's business, are in line with a figure of $40,000 as being the nett income of the business for the twelve months ended February 1993. I note in passing that some of the entries in this form are untrue, in that according to the plaintiff's evidence there was a period of about two years between 1986 and 1988 when he was not carrying on a business.

In carrying on his two businesses the plaintiff had effected many insurances, including income disability insurance. I accept Mr Browne's evidence that the plaintiff had taken out personal income insurance with the Prudential Insurance Company in the 1980s and that on that occasion it had been important to distinguish between the plaintiff's gross income and his personal income, that is his taxable income. The insurance which the plaintiff was applying for was to replace a policy of disability insurance the plaintiff had taken out with the A.M.P Society. In November 1992 the plaintiff had written to the A.M.P Society saying that he was currently experiencing a difficult financial situation and requesting that the premium on the policy be reduced from the date of inception of the policy. The plaintiff's previous experience with insurance, including income replacement insurance, increases the likelihood that he understood the question he was asked in the application supplement.

Earlier in this judgment I referred to the claim the plaintiff made on 19 August 1993. The claim form was filled in by the plaintiff himself and not by any intermediary. In the claim form the plaintiff was asked "what has been your average nett income during the last twelve months? (nett income means gross earnings less business expenses but before tax)". The question accordingly contained a definition of income similar to the definition in the Income Details in the application supplement and clearly asked for a statement of the plaintiff's nett income. In answer to this question in the claim form the plaintiff wrote "over $70,000". In his evidence the plaintiff admitted that this answer was a "mistake". I am satisfied that the plaintiff read and understood this question in the claim form and gave a knowingly false answer in the claim form.

On 17 October 1993 Ms Sazdanovska asked the plaintiff if his business was generating "a profit" and the plaintiff said "yes" and said that he should really have been insured for $6,000 per month and not $3,500 per month. I am satisfied that the plaintiff understood that Ms Sazdanovska was asking a question about the profit of the plaintiff's business and not the gross income of the plaintiff's business. A level of insurance benefits of $6,000 per month that is $72,000 per year, would be quite inconsistent with either a gross income for the business of $60,000 per annum or a nett income for the business of $40,000 per annum. I also note that in January 1994 the plaintiff told Dr Dodd that he had been earning more than $100,000 a year

The principal submissions made by counsel for the plaintiff why I should not find that the plaintiff had acted fraudulently were that I should accept the plaintiff's evidence in preference to Mr Browne's evidence; that Mr Browne at least thought that the figure of $60,000 for the plaintiff's nett income was in keeping with the plaintiff's apparent lifestyle; that the plaintiff when answering the question about his income did not have the benefit of any financial statements or income tax returns; that Mr Browne, according to Mr Browne's own evidence, warned the plaintiff that if the plaintiff made a claim on any policy issued pursuant to the application and application supplement it was likely that the plaintiff's income would be audited by the defendant, so that any misstatement of the plaintiff's income would be likely to be discovered; and that the plaintiff had made few, if any, previous insurance claims of any sort.

With regard to these submissions made by counsel for the plaintiff, I have already concluded that, rather than preferring the plaintiff's evidence to Mr Browne's evidence, I should prefer Mr Browne's evidence to the plaintiff's evidence, where there is a conflict between the evidence of the two witnesses. I would not attach much significance to Mr Browne's view that the figure of $60,000 was in keeping with the plaintiff's apparent lifestyle, that is in keeping with such things as the plaintiff's house, extensions to the plaintiff's house, the plaintiff's motor vehicle and the white goods and furniture in his house. A person's apparent lifestyle is a risky guide to the amount of income he is actually earning. In the present case it is known that the plaintiff had borrowed large sums of money from the National Australia Bank and that in November 1992 the plaintiff, by his own admission, was in a difficult financial situation. As regards the absence of documents properly recording the income and expenses of the plaintiff's business, the plaintiff's case on the issue of whether he acted fraudulently is not that he wrongly included or excluded items of income or expenditure or that he wrongly estimated the amounts of such items, matters which he would have been able to get right if he could have had recourse to records, but that he simply did not understand that he was being asked to state the nett income of his business after expenses, as distinct from the gross income of the business.

There is some force in the submission that, if the plaintiff had considered the matter rationally, he should have concluded that there might be little point in overstating the nett income of his business, because, if the plaintiff subsequently made a claim under a policy, there would probably be an audit of the plaintiff's income and any overstatement of the plaintiff's income would be discovered. However, the terms of Ms Sazdanovska's file notes suggest that the plaintiff, when his claim was in fact challenged by the defendant and the defendant sought the production of financial documents, did not produce any documents which would have enabled an audit and adopted various strategies, including threats by him to go to the media, to persuade the defendant to continue meeting the claim, without the claim being supported by financial documents.

I have concluded on the basis of the evidence accepted by me which I have referred to in this part of my judgment, that the plaintiff's failure to comply with his duty of disclosure was fraudulent, in that it occurred knowingly, and that the statement made by the plaintiff in the Application supplement that the income of his business after taking into account expenses was $60,000 per annum was a misrepresentation which was made by him fraudulently, in that it was made by him knowing it to be false. This conclusion involves a conclusion that the statement in the application supplement was not made by the plaintiff on the basis of a belief held by him which a reasonable person would have held in the circumstances and was accordingly not prevented from being a misrepresentation by s26 of the Act. I am also satisfied on the basis of evidence given by Mr Hodgson that the defendant would not have entered into the contract into which it did enter, that is to pay a benefit at the rate of $42,000 per annum in the event of the plaintiff's total disability, even if the plaintiff had not failed to comply with the duty of disclosure or had not made a misrepresentation and accordingly s29 of the Act is not prevented from applying by para (c) of ss (1) of s29. Consequently, the defendant was entitled under s29(2) of the Act to avoid the contract of insurance.

I have reached this conclusion without having to make any finding about whether the plaintiff at the time the application and application supplement were completed had already formed a scheme to defraud the defendant.

If I was not satisfied that the misrepresentation was made fraudulently, in the sense of knowingly, (as I am satisfied), I would be satisfied that the representation was made fraudulently, in the sense of with reckless indifference as to whether it was true or false.

I am also of the opinion that the Court should not disregard the avoidance under s31 of the Act. The power conferred by s31 is exercisable only if the Court is of the opinion that the insurer has not been prejudiced by the failure or misrepresentation or if the insurer has been so prejudiced, the prejudice is minimal or insignificant. (s 31(2)) See Plasteel Windows Australia Pty Ltd v CE Heath Underwriting Agencies Pty Ltd (1990) 19 NSWLR 400. In the present case I consider that the defendant has been prejudiced by the failure or misrepresentation and that the prejudice is not merely minimal or insignificant. By reason of the failure or misrepresentation the defendant committed itself to pay in the event of the plaintiff's total disability, over a period which could last up to 30 years, a much larger amount of money than it would have agreed to pay if there had been no failure or misrepresentation and indeed a larger amount of money than the plaintiff's actual nett income, with the consequence that the plaintiff would have no financial incentive to cease being totally disabled within the meaning of that term in the police. I also take into account the other provisions of s31, including the injunction in s31(3)(a) that the court is to have regard to the need to deter fraudulent conduct in relation to insurance.

I accordingly conclude that the defendant is entitled to succeed in these proceedings on the ground that it validly avoided the contract under s29 of the Insurance Contracts Act.

The conclusion I have reached on the third of the principal issues means that it is strictly unnecessary for me to decide the other two principal issues. However, I propose to deal with each of those issues briefly.

Whether an accident occurred as alleged by the plaintiff.

It was strenuously argued by counsel for the defendant that there had not been any accident at all and that the plaintiff had completely fabricated his account of the accident. It was contended inter alia that the plaintiff had not given any plausible account of how he could have slipped, when he was wearing rubber soled shoes and walking on a concrete surface and there was no evidence of the presence of any slippery substance on the concrete. It was also contended that the alleged accident was simply part of the over all fraudulent scheme which the plaintiff had formed to defraud the defendant and that the plaintiff's swift closure of his business, sale of his house and removal to Queensland were to be understood as forming part of the execution of the fraudulent scheme.

There is force in these submissions by counsel for the defendant. However, I have concluded that I should accept the plaintiff's evidence that the plaintiff had some kind of accident before he saw Dr Voon. This conclusion does not however involve any findings by me that the plaintiff had an accident of the precise kind or of the gravity of the accident alleged by the plaintiff.

Whether the plaintiff was rendered totally disabled and has continued to be totally disabled.

Earlier in this judgment I set out the definition of "total disability" in cl 2.18 of the policy document. It was not disputed at the hearing that the plaintiff had not worked since the alleged accident in any gainful occupation and hence para (b) of the definition was satisfied. It was suggested at times during the hearing by counsel for the defendant that the plaintiff had failed to follow the advice of some medical practitioner but this submission was ultimately not really pressed. In his final address counsel for the defendant's submissions concentrated on para (a) of the definition of total disability and on the requirement that any total disability should have been "solely" because of injury from the plaintiff's accident.

Paragraph (a) of the definition of total disability is not free from ambiguity. It could refer to the plaintiff not being capable of doing some one or more of the important duties of his occupation of an automotive mechanic or it could refer to the plaintiff not being capable of doing any of the important duties of that occupation. The distinction could be material, in that there was evidence that the plaintiff was capable of performing some of the important duties of his occupation as a mechanic.

The definition in the policy document of "partial disability" might suggest that a person is not totally disabled, if he is capable of performing any one or more of the important duties of his occupation. If this interpretation of total disability was correct, then it would be clear that the plaintiff has not been totally disabled and would not at any stage have been entitled to benefits on the basis that he was totally disabled.

However, at the hearing I suggested that there would be total disability within the meaning of the policy, if the plaintiff was unable to perform any one or more of the important duties of a mechanic and both counsel agreed with this suggestion. Counsel for the defendant did not make any submission to the contrary in his final address. Such an interpretation is sensible. If, for example, a mechanic is incapable of doing essential physical work on motor vehicles, he should surely be regarded as totally disabled from working as a mechanic, even if he can sit at a desk and do paper work for his business as a mechanic.

Earlier in this judgment I summarised parts of the medical evidence in the case which I consider to be significant and made some comments on that evidence. After considering the medical evidence and the other evidence in the case, I am not satisfied that the plaintiff has ever been totally disabled, even within the interpretation of that expression in the policy which I have adopted. I will state my principal reasons very succinctly. I do not consider that clinical findings by medical practitioners which have depended on the plaintiff's reports or behaviour while he was being examined, can be accepted with any confidence. As far as objective evidence is concerned, the majority view of the results of the investigations in 1993 is that no abnormalities of any significance were detected. As far as the MRI scans in 1995 are concerned, no doctor who made a report which was admitted into evidence had actually seen the MRI scans and I am not satisfied that they indicated any major problem. I am not satisfied that any wasting of the plaintiff's left thigh is significant. Doctors other than Dr Evans disputed that there was any wasting at all of the left thigh.

Even if the plaintiff was totally disabled, I would not be satisfied that this would be "solely" because of injury from the accident. I consider that the plaintiff's condition is very largely, if not entirely, a psychological condition, which has been brought about by many factors, including some important factors quite independent of any accident, including the breakdown of his marriage, the loss of his children, his obvious deep bitterness towards his former wife and the financial difficulties which I find he was already having before the time of the alleged accident.

In my opinion, there should be a verdict for the defendant in the plaintiff's action and there should be a verdict for the defendant, that is the cross-claimant, on the cross-claim. The plaintiff should pay the defendant's costs of the action and of the cross-claim. I direct the parties to bring in short minutes of orders to give effect to the conclusions in this judgment.