Plaintiff v Defendant

Plaintiff v Defendant - [2009] VSC 454 - VSC 2009 case summary — Zoe

[134]

COUNSEL: "All right. You indicated before this date, 19 January 2005, you drank, sometimes you have a six pack, sometimes you might have eight, not every week. Did you continue to have some alcohol when you were at home off work?"

WITNESS: "The - when I injured my back, I increased the alcohol."

COUNSEL: "How soon after you injured the back did you start increasing?"

WITNESS: "A couple of weeks later I started to drink very heavily."

COUNSEL: "What type of - how much did you drink?"

WITNESS: "I drink minimum 12 cans, three-quarter - maybe three-quarter of whisky, maybe two bottle of wine, whatever I find just - sometime I take all the painkillers. I have a lot of different - different type of painkillers, I take with them and then I just want to froze my body not to feel that pain."

COUNSEL: "How regular, yes, I was coming to it Your Honour, yes, you said you had 12 cans - - -"

HIS HONOUR: Twelve cans."

COUNSEL: "- - - sometimes whisky, wine, how often?"

WITNESS: "Every day."

COUNSEL: "It may be clear from what you said as to why you take it, but why were you taking - why did you start increasing the alcohol?"

WITNESS: "Because the - in the beginning I got a lot of pressure from the employer, I didn't get pay right, I didn't get - nobody didn't believe me in the work place."

COUNSEL: "Did pain have anything to do with increasing alcohol?"

WITNESS: "Everything make me uncomfortable, like of course the pay is important, and then another thing the bosses and supervisors was treating me like you're nothing and then - - -"

COUNSEL: "You say you started about a couple of weeks after the injury?"

WITNESS: "Yes."

COUNSEL: "You were still off work then?"

WITNESS: "Yes."

COUNSEL: "Did you remain off work until - it's not clear, but would it have been about May 2005?"

WITNESS: "I believe so, I'm not really good with the date."

COUNSEL: "Over that period whilst you were off work how was your alcohol consumption?"

WITNESS: "That was the same."

COUNSEL: "You mean the daily consumption you just spoke of?"

WITNESS: "Yes."

[152]

118 Third, Mr Acir was an unreliable witness in relation to another aspect of his evidence. Frosster adduced evidence of a car journey made by Mr Acir from Melbourne to Mildura after he had worked a part-time shift on Friday 5 August 2006. Video of parts of the trip were shown[156] and Mr Acir accepted that he was depicted in the video. Frosster also called Mr Caligari, the inquiry agent, who conducted the surveillance on that day. Mr Acir swore that "The only time that I went to Mildura it was with my son",[157] and on that trip he and his son shared the driving.[158] He said that he had to take over the driving when it became dark.[159] However, the video and the evidence of Mr Caligari paints a distinctly different picture. Mr Acir, according to Mr Caligari,[160] drove by himself to Mildura and stopped voluntarily on three occasions, shortly after the turn-off to Mildura just south of Bendigo, then at a roadhouse at Charlton. Mr Caligari subsequently observed Mr Acir's vehicle to be apprehended by the police south of Ouyen; Mr Acir agreed that he was "caught" travelling at a speed in excess of 130 kilometres per hour.[161] He then stopped, again, north of Ouyen and drove on to Mildura. Mr Caligari's evidence that Mr Acir travelled alone is confirmed by the video, which showed Mr Acir taking a break at the roadhouse at Charlton and then getting into his vehicle alone. Mr Acir consumed a meal in the open, and one would have thought that if his son was with him, he would have been seen on the video. I accept Mr Caligari's evidence that on 5 August Mr Acir, after finishing work, travelled by himself for just over six hours to Mildura. In fact, it is corroborated by the evidence of Mr Acir's son, Bercil, who also contradicted Mr Acir's version. He said he had gone to Mildura with his father in April, not August.[162] Mr Acir's assertion that his son was with him in the vehicle on this trip to Mildura, was, in my view, false. I infer that he provided this account so as to minimise the criticism that could be mounted of him in engaging in such a lengthy journey with a significant injury to his back. There is one other aspect of the video that is somewhat relevant to credit. After watching the 5 August video of Mr Acir's activities at the service station prior to the Mildura trip, Dr Munir noted inconsistency with his presentation at the surgery.[163]

[356]

"When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place. (Citations omitted).

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