Prodanovic v Mahoney [2020] NSWDC 780 | Case summary

Prodanovic v Mahoney [2020] NSWDC 780 | Case summary | Zoe

The plaintiff's injuries and disabilities

The injuries particularised are as follows: "(a) Shock; (b) Injury to the neck; (c) Injury to right shoulder; (d) Injury to the left shoulder; (e) Injury to the thoracic spine; (f) Injury to the lumbar spine; (g) Injury to both knees; (h) Psychological injuries."
The plaintiff's ongoing disabilities are particularised as follows: "(a) Pain and restriction of movement of the neck; (b) Pain and restriction of movement of the left shoulder; (c) Pain and restriction of movement of the right shoulder; (d) Low back pain that radiates into the left leg; (e) Low back pain that radiates into the right leg; (f) Pain and restriction of movement of the thoracic spine; (g) Pain and restriction of movement of the lumbar spine; (h) Pain and restriction of movement of the left leg; (i) Pain and restriction of movement of the right leg; (j) The neck pain radiates into the shoulders; (k) Pins and needles in the left arm; (i) Pins and needles in the legs; (m) Inability to bend, lift and squat as before and loss of agility; (n) Insomnia, anxiety and depression; (o) Post traumatic stress disorder; (p) Difficulty driving because of pain associated with turning his neck; (q) Only drives short distances; (r) Before the accident he played soccer for Auburn District and indoor soccer and he has not played since the accident; (s) Anxiety and depression; (t) Inability to walk up or down stairs without suffering pain; (u) Inability to sit or stand for any length of time which causes him spinal pain; (v) He suffers radiated pain from the neck into both arms more left than the right with pins and needles from time to time; (w) The low back pain radiates into the left knee and from time to time radiates into the whole of the leg."
The parties have provided schedules of damages as follows: "Plaintiff's Schedule of Damages (As per the Schedule of Damages relied on in the CARS proceedings) Past Economic Loss: The pay rate of $1,310.91 from 18/12/2015 to 24/11/2020: $412,669.28 Superannuation at 9% $37,140.35 Future Economic Loss: After allowance for capacity to carry out Light duties at $950.00 net per week on the 5% tables to age 70% (34 years): $699,215.00 Superannuation at 11% $76,913.65 Loss of earning capacity in relation to the loss of the delicatessen business: $150,000.00 Past Treatment: Holistic physiotherapy: $5,601.30 Section 83 (to be update): $8,407.05 Medicare (deemed to be updated): $1,549.20 Future Treatment Consultations with a General Practitioner $500-$1,000 per year - buffer: $30,000.00 Consultations with a specialist including Radiography $1,000 per year - buffer: $20,000.00 Physiotherapy $1,000 per year - Buffer: $25,000.00 Medication $300 per year - buffer: $22,000.00 Claim for prospective surgery: Low back decompressive surgery in the form of discectomy; decompression with or without stabilisation - cost: $20,000.00 Surgery to the right shoulder - cost $10,000.00 Left knee including arthroscopic medial meniscectomy - Cost $5,000.00 Right knee arthroscopic lateral meniscectomy - Costs: $5,000.00 In relation to treatment for psychiatric injury: Consultation with a GP twice per month for 2 years at $90 Per month: $2,160.00 Visits with a psychiatrist twice per month at a cost of $400 per month for 2 years: $9,600.00 Antidepressant medication at $50 per month for 2 years: $1,200.00 Cost of Rehabilitation: (See report of Ross Girdler) $2,500.00 Equipment & Home Modifications Shower chair $75.00 Long handled comb $33.00 Long handled sponge rehabilitation $24.20 Soesi elastic shoe laces $30.00 Sock aid $30.00 Long handled shoe horn $31.90 Tens machine $160.00 Stanadard back therapod $159.00 Electric Recliner $1,490.00 Bed stick- Cobra $44.95 Over toilet aide $186.00 Further Future Therapy Intervention Occupational Therapy $385.00 Occupational Driving Assessment $1,400.00 Physiotherapy $898.20 p/a Hydrotherapy- unlimited access- annually $750.00 p/a Psychology $2,856.00 p/a Pain Management Program $10,000.00 Vocational assessment 8 sessions $1,480.00 Vocational Counselling 6 sessions $1,110.00 Job seeking assistance 12 sessions $2,220.00 Interpreter services $1,120.00 p/a"
The difference between the plaintiff's schedule of damages and the defendant's schedule of damages could not be more marked. The defendant's schedule allows only for past out of pocket expenses (and potentially "minimal" future expenses), for the following stated reasons: "The defendant relies upon the expert medical opinions of Dr Yu and Dr Selwyn Smith. On the basis that the Court accepts these opinions (which it is respectfully submitted the Court should), any assessment of damages would be minimal: Head of damage: Amount: Past out of pocket expenses TBA Future out of pocket expenses Nil/Minimal Past economic loss Nil Future economic loss Nil"
Discrepancies of this magnitude between the parties' schedules are not uncommon, and they create difficulties for the trial judge: see the observations of Letherbarrow SC DCJ in Alat v Franklins Pty Ltd (2012) 15 DCLR (NSW) 203 at [47]. In the present case, the "all or nothing" approach taken by the plaintiff meant that evidence to the contrary was not the subject of alternative submissions, and that important parts of the defendant's evidence (such as Dr Yu's analysis of causation of the plaintiff's problems) were largely passed over.

[3]

The plaintiff's evidence

The plaintiff gave evidence in the Serbian language. Mr Curran urged me, when considering the plaintiff's accounts of the accident, to take into account the culture-related factors adumbrated by the Court of Appeal in Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186, and I have done so. I also take into account that the plaintiff, a person of limited educational background and unfamiliar with the court system, would find giving evidence intimidating and that he may not appear at his best in the witness box.
The plaintiff has had the advantage of preparing the factual background to his evidence in chief in the form of two statements concerning the circumstances of the accident (T 17; Exhibit A), as well as a chronology prepared on his behalf by his legal advisers (T 17; Exhibit B), the correctness of which he affirmed on oath.
The plaintiff's examination in chief was, perhaps as a result of these statements, relatively brief. He did not describe the circumstances of the accident. He told the court his medical treatment is essentially medication and physiotherapy and that because of the pain, he was "not able to do heavy duty jobs" (T 20).
The plaintiff said that the pain was "always there" despite the medication, which only reduced the pain to "about 40%" (T 21). He took that medication every second day in pill form (T 21), although on some days he took five pills in one day if the pain was bad. He told the Court that his current medication is Panadeine Forte (T 22) and that he saw his general practitioner every six weeks for the purpose of obtaining a script. He is also still having regular physiotherapy, but this provides only limited relief.
As to his ongoing physical disabilities, the plaintiff said he had not been able to work at his former place of employment as no light duties were available. Although he said he had not worked since the accident, he agreed that he had done some work in a delicatessen (the delicatessen work was acknowledged by the plaintiff's statements and chronology).
As to the psychological injuries particularised, the plaintiff said his injuries had affected his marriage and his wife had left him. He had been depressed and had flashbacks, and saw a psychologist for some months after the accident, but could not recall for how long a period.
In cross-examination, the plaintiff's credit was challenged on the following bases: 1. The dashcam footage showed the impact was minor and the plaintiff was in no pain or difficulties at the time. 2. The plaintiff's work records were in conflict with his claims that he sought light duties. 3. The plaintiff continued to work, without paid assistance, in the delicatessen he had taken over from his father (who died in April 2015) for at least 14 months after the accident, and he only closed it down when shopping centre renovations meant all the businesses in it had to close down. 4. The plaintiff dishonestly exaggerated his injuries to doctors and kept details of his delicatessen work from them. 5. The plaintiff was not in pain from the accident as alleged and his inconsistent and inaccurate evidence about the medication he claimed he had been taking strongly suggested he was not taking medication at all. 6. The plaintiff gave dishonest evidence about his residual earning capacity and attempts to find work. 7. The plaintiff's marriage did not break down as a result of this accident; he and his wife were separated prior to this and their ongoing marriage difficulties (resulting in her commencing divorce proceedings in June 2018) were the real cause, if any, of his anxiety and depression issues.

[4]

The dashcam footage

The dashcam footage was shown to the plaintiff in cross-examination. It was put to him that he was plainly relaxed, shaking hands with the other driver and smiling, as opposed to being anxious and in pain as he claimed: (T 48-50) "Q. Just stop it there, please. Stopped the video now at one minute and 28 seconds, and do you agree that so far, you are displaying no signs of distress whatsoever? A. INTERPRETER: On this video, you can't see that. Q. Sorry? A. INTERPRETER: You cannot see that on this video. Q. You also manage to shake the hand of the driver of the vehicle behind you. A. INTERPRETER: Yes. Q. And your demeanour was perfectly relaxed. Do you agree with that? A. INTERPRETER: Yes. Q. You're not suggesting, are you, that in fact you were very anxious, but you just can't see that on the video? You're not trying to suggest, are you, that in actual fact you were very anxious about what had happened, but that's not shown in the video? A. INTERPRETER: Yes, you cannot see that on video. Q. But you've told a number of doctors in this case that you didn't suffer any symptoms following the accident for a number of hours. A. INTERPRETER: I developed pain straight away in the back. Q. Do you remember discussing this video with MAS assessor Synnott, the psychiatrist, spelt S-Y-N-N-O-T(as said)? A. INTERPRETER: No. Q. You can assume that you saw MAS assessor Synnott, who's a government doctor, on 21 February 2017. A. INTERPRETER: Where was that doctor? Q. That was at 44 Market Street in Sydney, on 21 February 2017. Government doctor, psychiatrist. A. INTERPRETER: As I was actually telling you previously, this is my third time to see this film, movie. The first I was watching with the - with this gentleman, the second in office, and this is the third time that I see this movie. Q. What I want to suggest to you, sir, is that you had a discussion with MAS assessor Synnott about the DVD I'm showing you. Yes? A. INTERPRETER: As I actually explained previously, I don't remember that what you say. The first I think I watched this video in our office, the second I was watching with you, and this is the third time I see this video. Q. See, what I want to suggest to you is that you said words to the effect of the following to MAS assessor Synnott, that it was several hours before you began to develop physical symptoms. Initially, you felt okay and you had no physical or psychological difficulties. A. INTERPRETER: As I actually told and everybody and I tell today to you that the first symptom I felt was in the lower back soon after the accident. Other symptoms, they were later. Q. Now, we're going to continue playing the video now and I'm going to ask you some more questions. Do you understand that? A. WITNESS: Yes. DVD PLAYED TO COURT Q. Now, I'm happy to replay the last 20 seconds again for you, if you - just of the interaction, and I just want to ask you some more questions. So we're going to start that from one minute and 30. I'm just going to show you once again from one minute and 18 seconds, where you just got out of the vehicle. Do you agree that's you getting out of the vehicle? A. (No verbal reply.) Q. Do you agree, sir, at that stage you actually smiled at the other driver? This is at one minute and 34 seconds. A. INTERPRETER: Yes. Q. And you nodded your head? A. WITNESS: Yes. Q. And you're clearly in no distress whatsoever. Do you agree with that? A. INTERPRETER: There is how I actually look like on video."
The plaintiff agreed in cross-examination that he had continued his trip to Bunnings after the accident and that he had told Dr Synnott that he had not developed any physical symptoms for several hours. He agreed that he smiled and nodded his head while speaking to the other driver, but said that he was holding his lower back because he was in pain (T 50).
It was put to the plaintiff that he was not in pain at all, and that he only attended his general practitioner for the purpose of lodging a CTP claim rather than because he needed treatment (T 51). He denied this. His reluctance to admit that the accident was minor extended to refusing to admit that there was next to no damage to his car: (T 51- 52) "Q. And you would agree though that there was next to no damage to the rear of your vehicle? A. INTERPRETER: I actually have all documentation about - to you. Q. You've already been asked some questions about some documentation relating to your car in 2019. I'm asking you about the state of your car after this accident, directly afterwards. And I'm suggesting to you there was next to no damage to the rear of your vehicle? A. INTERPRETER: Yeah, you have paper about that too. Q. Well, it's a really simple question, sir. Do you agree, sir, that the damage to the rear of your vehicle was very minor? A. INTERPRETER: I just don't know. Q. Do you dispute it? A. INTERPRETER: Yes, I just don't want to dispute to you, but the car beater - A. WITNESS: Panel beater. A. INTERPRETER: Panel beater is actually the one who judge the damage. Q. Sir, did you inspect the front of the vehicle that collided with the rear of your vehicle? A. INTERPRETER: I can't remember. Q. So if I asked you whether that damage was minor, you wouldn't be able to answer? A. WITNESS: On another car..(foreign language)..is have another car has got the bull bar. A. INTERPRETER: Another car was protected with bull bar. Q. I'm talking about your car - I'm talking about the other vehicle. It wouldn't have had a bull bar on the front of the vehicle? So do you agree that the damage to the front of the vehicle behind you was also minor? A. INTERPRETER: Really, I - I just can't say much about that, really, I don't know. Q. Sir, you agree don't you, that the air bags in your vehicle didn't go off? A. WITNESS: No. Q. You agree, as in they didn't A. WITNESS: Air bags? Q. Did not go off? A. WITNESS: No. Q. Okay. Your vehicle was driveable after the accident, wasn't it? A. WITNESS: Yes. Q. The other vehicle was driveable after the accident, wasn't it? A. WITNESS: Yes. Q. Do you agree that you had a seat belt on when this accident occurred? A. WITNESS: Yes. Q. Do you agree that, at no stage did any part of your body collide with anything inside the cabin of your vehicle? A. INTERPRETER: I was, actually I think, no. Because, I did have a belt - seat belt. Q. So, you're agreeing with me, the seat belt did its job and your body didn't - no part of your body collided with anything within the cabin? You agree? A. INTERPRETER: No. Yeah. A. WITNESS: Yeah. I agree."
As is set out in more detail below, I have the advantage of expert analysis of the dashcam footage from the defendant's medico-legal reports. However, even if the plaintiff's back injuries only became evident later, this does not mean that he did not suffer a whiplash injury of any kind. He attended his general practitioner promptly and his initial complaints of back pain appear related to some form of whiplash or soft tissue injury.
However, noting the desirability of expert evidence as an aid when interpreting material of this kind (Angel v Hawkesbury City Council [2008] NSWCA 130), I accept the interpretations of the dashcam footage by Dr Yu and agree with his view that this was a very minor accident. (Dr Selwyn Smith makes a similar observation, but this is outside his area of medical expertise.)
By itself, the evidence of the plaintiff's demeanour at the scene of the accident is of limited assistance. However, if I accept the evidence of Dr Yu that the impact was only minor, the plaintiff's claims about being in pain straight away (which is contradicted by this footage) may be seen as part of a general pattern of exaggeration.

[5]

The circumstances of the plaintiff ceasing to work as a gyprocker

The plaintiff was asked to agree that his work at the gyprocking company was coming to an end at the end of 2015 but was not prepared to do so (T 42 - 43). The documents tendered from Benchmark confirm that the plaintiff continued to work up until the last day of work before the Christmas break. The plaintiff obtained a certificate for light duties from his general practitioner when he first consulted him about the accident, but there is no corroboration from the plaintiff's employer, Alcorn Pty Ltd, of any change in hours (apart from one day when he worked for three hours) or of any attempt to return to work after the Christmas break. The Benchmark records confirm that the plaintiff's employer was unsuccessful in tenders for further work and had to reduce its staff requirements from about 80 to about 15.
In determining whether or not to accept the plaintiff's evidence that he intended to continue working as a gyprocker, I note the plaintiff's financial records suggest that the plaintiff spent more time working in the delicatessen after the accident than before. Wages were paid for the 2015 financial year but not for the 2016 financial year (Exhibit 3 pp 79 - 82), during which time the plaintiff appears to have been working there full-time without any paid assistance. The plaintiff claimed that his father and/or his wife were working for free in the business, but his father died in April 2015, eight months before the accident and his wife (from whom he was separated at the time of the accident although there was a reconciliation for several years afterwards) worked in a bank (see the plaintiff's statements to Dr Smith at Exhibit 1, p. 3 and also T 59). The evidence points to the plaintiff continuing to work full time for approximately 14 months after the accident.
Somewhat inconsistently with his denial of working in the delicatessen, the plaintiff also claims damages for loss of this delicatessen business.

[6]

The plaintiff's delicatessen work

The plaintiff told the Court that he was currently living with his mother and his two children in a home unit in Liverpool. Since the motor vehicle accident he had continued to work in his delicatessen business (T 18) until June 2017, when he stopped because "it was a pretty difficult job and I just could not keep up any longer with it" (T 19). This was because in the delicatessen "you have to carry boxes, you have to bend, you have to stand up, you have to carry this and that" (T 19).
As noted above, the plaintiff told the Court his wife (T 36) was participating in the delicatessen business at the time, as was his father (T 19), claims which I do not accept. Nor is there any evidence any other person was working there. There are no wage records for any person other than the plaintiff as an employee in the delicatessen for any period of time after the accident. The plaintiff's financial records (Exhibit C, pp 79 - 82) show that the plaintiff made a working net profit for the financial year ending 30 June 2016 with no outgoing wage expenses.
The plaintiff described his working activities in the delicatessen as follows (T 19 - 20): "Q. And, what activity - what number of days or hours were you, actually yourself, working in the delicatessen up until it stopped operation in June of '17? A. INTERPRETER: Yeah. Whenever actually came I was meant to work. I was working at that time, nightshift. So, I was able to work in delicatessen day time whenever I was able to do so. Q. All right. And, did you then later try and go back in to the delicatessen work in January 2018? A. INTERPRETER: I went to look, not in my business, but I was looking for job in - somewhere, other places. Q. Just taking you to your chronology, exhibit B, just having a look, sir, at page 5. Now, just taking you to page 5 there, sir, do you see the third date entry, June 17, or the letter (c) and then the month "June" and the year '2017". Do you see that? It's got there, "P ceases work in the delicatessen business." "P" being you, the plaintiff. A. INTERPRETER: At that time, delicatessen was closed down. Q. then the next entry though is 23 January 18, "P attempts to return to work in his delicatessen, the Deli Delight. Is that correct or an error? A. INTERPRETER: It's error. Q. When did you last work in your own delicatessen with your family? A. INTERPRETER: I was working until it closed down, the shop, but I can't exactly recall when was the exactly time. I think sometimes in June. From the day, one when I had the - HER HONOUR Q. You said - sorry, June 2017, or June some other date? What year? A. INTERPRETER: I think it was 2017 but not - I just can't recall, it could be 2019. HER HONOUR: I'm sorry, I interrupted, Mr Curran. Can you just clarify the year? CURRAN: Yes, I do, your Honour. Just trying to. Q. Sir, when you did close down the operation of the delicatessen, did you try and sell the business or just simply close the doors and shut it down? A. INTERPRETER: No, I just closed down because there was a proposal for renovation of the shop and was very - a lump - a - a large sum involved so I could not afford, so I closed down."
The plaintiff has effectively acknowledged, in this answer, that there is no relationship between the closing of the delicatessen and the circumstances of his motor vehicle accident. It is not to his credit that he brought a claim for damages for loss of this business.
Given the turnover of the delicatessen business and its profitability, if the plaintiff was working in the delicatessen without paid assistance, he must have been working close to full-time.
I am satisfied from my perusal of the medical reports that this is information he has sought to conceal from the medico-legal practitioners as well as from MAS Assessor Synnott and MAS Assessor Maloney (Exhibit A, pp 64 and 74). In arriving at this conclusion, I have been careful to take into account that statements made to medical practitioners should be treated with a degree of caution as medical practitioners are seeking to treat the medical problems, not record the manner in which the injury in question was incurred: Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; Mason v Demasi [2009] NSWCA 227 at [2]; Container Terminals Australia v Huseyin [2008] NSWCA 320 at [8]; Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 at [56]; Mastronardi v State of New South Wales [2009] NSWCA 270 at [87]; Hill v Richards [2011] NSWCA 291 at [23].
The inconsistent statements by the plaintiff to the effect that he was unable to work in the delicatessen at all and/or that his inability to work led to the delicatessen being shut down and/or that other family members were working there without pay, are all troubling. This was not merely a part-time activity; the gross operating income of the delicatessen store for the FYE 2015 was $412,145 and for the FYE 2016 was $392,164. This is over a period of time when he was telling Dr Tomka he required strong medication for constant debilitating pain and insomnia, as well as psychological issues.
The plaintiff's credibility was also challenged in relation to whether this medication was needed and was in fact taken at all.

[7]

Medication

The plaintiff's evidence was that he was in constant pain and that, even when he took medication, it only reduced the pain to about 40%. Clearly the medication which the plaintiff sought on each visit to Dr Tomka is an essential objective indicator of the plaintiff's ongoing pain levels.
It has always been asserted by the plaintiff that he is taking strong pain medication on a daily basis. The plaintiff told Dr Yu on 12 October 2016 (Exhibit 1. P. 19) that he used between 100 mg and 500 mg of Tramadol each day, which resulted in drowsiness. Most days he used between 1 ½ and two tablets a day. He told Dr Yu on 19 June 2018 that, in addition to Tramadol, he was taking an unnamed tablet (3 mg) for nervousness.
The plaintiff told the Court that his medication is Panadeine Forte, not Tramadol, and that he takes this at least every second day: (T 21 - 22) "Q. Well, how often in the last, say, few years have you been taking medication for your pain? A. INTERPRETER: Every second day. Q. Well, when you take it, is in pill form? A. INTERPRETER: Approximately. Q. Is it in pill form or some other form? How do you take the medication? A. INTERPRETER: Like pills. Q. How many pills would you be taking this year, over the course of this year, how many pills would you be taking in say an average week? A. INTERPRETER: Depend on my - strength of the pain, some days I take one, other days I take five in one day. Q. What is the name or brand of this medication that you take on this basis? A. INTERPRETER: Panadeine Forte at the moment. Q. Is that prescribed by your family doctor, Dr Tonker, or not? A. INTERPRETER: Yes. A. WITNESS: Yes. A. INTERPRETER: Yes. Q. When you purchased the medication, the Panadeine Forte, how much do you spend, how much does it cost you for a dose of medication like this? A. WITNESS: Around - between 20 and 30 dollars, I'm not real sure, because I take the tablets for the sleeping and for pain. Q. When you buy a medication batch, how long does it last? A. INTERPRETER: It all depends, about three, up to four weeks. Q. Are you seeing Dr Tonker on that basis, that is, every four to six weeks? A. INTERPRETER: Yes. Q. Now, you say in your A. INTERPRETER: Between three to four weeks."
Dr Tomka's notes set out that prescriptions for Panadeine Forte "ceased" on 14 September 2017; looking back at the prescriptions, this in fact appears to have been the case since 28 April 2016, as the plaintiff had not been prescribed Panadeine Forte but Tramadol since that time. In addition, although the plaintiff said that Panadeine Forte was to help him sleep, he was prescribed Normison (or later Stillnox) for this purpose. These prescriptions were printed off for the plaintiff to have filled at the chemist on every visit he made over the five years following the accident, so he should have been familiar with the names and prices of the medications, as well as able to provide chemists' receipts for at least some of these drugs.
In his statement dated 28 October 2018, the plaintiff states that he needs to see a general practitioner once every six weeks "at a cost of $150 including medication" (Exhibit A, p. 208).
How is this sum calculated? The payment expenditure sheet (Exhibit A, p. 412) identifies only three pharmaceutical bills (28 April 2016, 21 May 2016 and 22 June 2016, for $22.49, $26.88 and $26.88 respectively) for the duration of the plaintiff's treatment over the past five years. The amount charged by Dr Tomka between May 2016 and November 2019 slowly increased from $75 per visit to $81 per visit. How was this figure of "$150" as a total for Dr Tomka's fees and the pharmaceutical costs arrived at?
The plaintiff did not know the cost of his medication; he could not even name his medication accurately: "Q. I think you said you don't know how much the Panadeine Forte costs. Is that right? A. WITNESS: ..(foreign language).. Q. But you gave an estimate. A. WITNESS: ..(foreign language).. Q. If I suggested to you that Panadeine Forte was about $7 a box, are you prepared to agree to that? A. INTERPRETER: Yeah - yeah, really, I don't know exactly. But if you say it is $7, I agree with you. Q. Is one of the reasons that you don't know how much the medication costs because you're exaggerating how much medication you really take for the purposes of this case? A. INTERPRETER: I just don't - don't know exactly how much cost the box of that particular medication. I know approximately how much I spent the money on medication. Q. See, I'm suggesting to you, sir, that in reality you take far less medication than you have told the court. Do you agree? A. INTERPRETER: No."
The plaintiff had not been prescribed Panadeine Forte since 14 September 2017, according to the notes produced from Dr Tomka up to October 2019, and had been prescribed sleeping pills, not Panadeine Forte, for insomnia.
The absence of accounts from chemists for all this medication is surprising, given the expense. The estimate for future medication costs is unexplained in terms of information as to the actual cost of the medication the plaintiff claims to be taking. The plaintiff has not correctly identified the medication prescribed. I am satisfied from these gaps in the evidence that the plaintiff is not in fact taking most, if not all, of the medication which is prescribed for him. That is a significant factor, weighing against the credibility of the pain he claims to be in, in relation to his ongoing disabilities.

[8]

Exaggerated claims

As is noted below, the medical evidence tendered by the defendant asserts that the plaintiff is significantly embellishing his claim in relation to both physical and psychological injuries. Mr Wilson also pointed to the following examples of evidence that he said was exaggerated: 1. The plaintiff told the Court that his pain was so great he was wetting himself every day (T 57) and that his knees were giving way on a weekly basis. There is no evidence that the plaintiff ever reported the bladder problem to his general practitioner, although he told Ms Piebenga, the occupational therapist, about it (Exhibit 1, p. 54: the occupational therapist helpfully notes that "no medical reports have identified bladder weakness and falls as a problem"). The plaintiff told Dr Tomka about having falls on two occasions, who recorded this in his notes but took no further action. There was an occasion when an ambulance was called to the home, but there was no further action. The relationship between these events and the motor vehicle accident is unexplained. 2. The plaintiff's claim that he could not drive for more than a few minutes was submitted to be at variance with his admitted activities. The plaintiff was not only driving his children to and from school (T 63), but also the delicatessen and TAFE English course, on a regular basis over years (I note that the plaintiff's income tax returns include deductions for the two years after the accident for motor vehicle expenses). The surveillance video showed the plaintiff being able to get into and out of his car on the occasion of his visit to Dr Selwyn Smith. The plaintiff's claim of being in so much pain that he was unable to drive more than 5 km should not be accepted. 3. The plaintiff's claim (paragraph 21 of his statement) that his marriage broke down because of friction with his wife after the accident is, I am satisfied, untrue. The plaintiff's chronology confirms that they were experiencing marital difficulties prior to the accident and that the plaintiff had left the matrimonial home. The problems disclosed by the plaintiff to the psychologist he consulted about them made no mention of the motor vehicle accident as a cause; the problem was that his wife had been unfaithful and there was friction concerning her treatment of the children.
Findings as to credibility in personal injury claims should be arrived at only after a careful analysis of the objective facts. The mere fact that injuries and disabilities are exaggerated is not a sufficient basis for such a finding. Observations by medical practitioners should also be treated with caution, as the circumstances of preparation of medico-legal reports do not necessarily lend themselves to objective analysis of the facts.
In the present case however, I am satisfied that Mr Wilson has been able to point to significant factors demonstrating that the plaintiff has not merely embellished his injuries and disabilities but has given evidence which is untruthful, and that he has done so for the purpose of claiming damages for injuries which, if they exist, are unrelated to the circumstances of the motor vehicle accident for which he brings this claim.
I have taken these findings about the plaintiff's credibility into account when determining the conflicts in evidence between the medical evidence tendered by both parties. These fall into two categories, namely psychological and physical.

[10]

Dr Protulipac

Dr Protulipac's report, dated only six months after the plaintiff's accident, describes in detail how the plaintiff "attempted returning to work two weeks after the accident but couldn't cope with his physical duties" (Exhibit A, p. 28). He was "forced to assume light duties", which meant that his income "significantly dropped" and he was "stigmatised by his colleagues for being unable to perform and he was hit hard by the reality of his injuries and limitations which he initially thought were only temporary." This "dramatic change" to his lifestyle caused "severe psychological reaction in the form of elevated anxiety, depression and severe insomnia". He became "idle, unmotivated, disappointed and hopeless" and was "no longer able to continue with his routines or engage in a productive lifestyle".
Psychological treatment commenced on 22 March 2016 (erroneously noted as 22 February 2016 in Exhibit A at p. 412) and concluded on 16 May 2016 (Exhibit A p 412). This treatment is described as a success; the result was that many of the plaintiff's problems either disappeared or were reduced in severity, which was "quite an achievement" and led to his participating in social activities and improved mood.
By the date of this report (28 June 2016), the plaintiff's therapy was "in its final stages" (in fact, the plaintiff had his final appointment 16 May 2016), although Dr Protulipac hoped that he would benefit from further sessions. A picture is painted of a three-month course of treatment with a happy result.
However, none of these statements accord with the facts as established in the evidence. I particularly note the following: 1. Employment records show that the plaintiff returned on the next working day after the accident, not two weeks later, and his work records show that, apart from one day, he worked normal working hours until the company closed for the Christmas break. There is no employer evidence of the plaintiff ever returning, either in January or at any later date, to seek light duties. 2. The plaintiff acknowledged in his chronology that he and his wife had separated before the accident; he later saw a psychologist to discuss the breakdown of his marriage and other family problems. The issue of the plaintiff's ongoing marital problems (which I am satisfied dominated his life over this whole period) is not referred to at all. 3. Contrary to the claim of being at home and unemployed, the plaintiff's tax returns show that he continued to work in the delicatessen business and was in fact working there for the duration of the time he was seeing Dr Protulipac.
There is no later report from Dr Protulipac; looking at the Medicare records, the last visit the plaintiff made was his 16 May 2016 visit. The extent of the plaintiff's treatment for psychological injury in relation to the motor vehicle accident is thus three months of treatment between March and May 2016, with a successful result.

[15]

Conclusions concerning psychological injury

The above history makes it clear that there is no evidence the plaintiff ever suffered any psychological injury of any significance. He kept from medico-legal doctors that he was working in his delicatessen, that he had a history obesity-related psychological issues resulting in surgery the year before the accident, and that he had significant family problems which would lead to the breakdown of his marriage (when the plaintiff saw a psychologist about his family issues, the motor vehicle accident was not even mentioned). At least some of these problems impacted on his work; in his consultation with a psychologist as part of his treatment for morbid obesity in 2014, he referred not only to self-esteem issues but problems with pain affecting his ability to work.
The value of the opinions of Dr Synnott, Dr Protulipac and Dr Kuljic without this information is significantly undermined as a result, as the factual basis for their opinions is erroneous: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [85].
For these reasons, I reject Mr Curran's submission (written submissions, paragraph 25) that I should prefer their opinions to that of Dr Selwyn Smith.
Mr Curran goes on to add, in his written submissions at paragraph 25, that the plaintiff "appears to have improved with treatment of his depressive condition", although the medical evidence is clear (see above) that the only treatment the plaintiff ever received in relation to the motor vehicle accident was the three-month course he completed in June 2016. He did not have any further treatment of his depressive condition.
The correct approach to diametrically opposed medical evidence is identified in Falco v Aiyaz; Falco v Falzon (2015) 71 MVR 454. The primary judge in those proceedings contrasted the plaintiff's presentation to two medico-legal psychiatrists with presentation to another doctor. That finding underpinned the conclusion that the presentation to one of those doctors was therefore "the product of considerable exaggeration" (at [70]). The primary judge gave five reasons for making a finding of "considerable exaggeration", which were set out at [37] of the appeal judgment: "37. The primary Judge gave five reasons for making this finding: (i) the appellant's presentation to the medico-legal psychiatrists was significantly different from her presentation to Dr Law, her treating psychiatrist; (ii) despite serious concerns raised by Dr Parmegiani and Dr Kaplan, the medico-legal psychiatrists, about the appellant's mental health, no steps were taken by members of her family to act on those concerns; (iii) the evidence of the appellant and Mr Falco had to be approached with caution since both had exaggerated the nature and severity of the Second Accident; (iv) the appellant did not consult her treating psychiatrist, Dr Law, for lengthy periods; and (v) Dr Law, having seen the appellant on six occasions during 2009, concluded in a report of February 2010 that although the appellant's psychiatric symptoms were moderately severe to severe for much of the time, the need for hospitalisation was uncertain and the chances that she would require hospitalisation for post-traumatic stress disorder (PTSD) were not high."
The primary judge's findings were not solely based on the different presentation to doctors, but other factors, including findings as to the plaintiff's credit (at [72]-[77]).
The Court of Appeal dismissed the appeal, considering that the primary judge was justified in drawing conclusions from the different presentation the plaintiff gave to one doctor as opposed to other doctors. The Court of Appeal also held that the primary judge was correct in looking at evidence outside the psychiatric evidence when determining whether the plaintiff had exaggerated.
Taking all of the above facts and the principles as set out by the Court of Appeal into account, no allowance should be made in relation to past economic loss for psychological injury.
As to future economic loss, Mr Curran acknowledges that "there is no evidence suggesting that this [psychological] condition presently causes incapacity for work and requires treatment" (written submissions, paragraph 25). I take this as an acknowledgement that no allowance should be made in relation to future economic loss for psychological injury.
Even if that were not the subject of acknowledgement, I would not be prepared to make any future allowance for the plaintiff's claimed psychological disabilities as I am satisfied that these are not merely exaggerated but, in relation to the motor vehicle accident, imaginary.
The circumstances in which an exaggerated claim is made for non-existent psychological injury are relevant to the plaintiff's credit in relation to his claim for damages for physical injuries and disabilities.

[17]

The plaintiff's medical evidence

Dr Guirgis first saw the plaintiff on 8 March 2016 and has provided three reports, dated 22 November 2016, 26 March 2018 and 22 May 2019.
In his first report, he describes the plaintiff as suffering injuries to his neck, shoulders and back, but notes there is radiating pain, stopping at the knee level, resulting in his knees giving way "almost once a week" (Exhibit A, p. 35). This is not supported by the notes from Dr Tomka, who refers to the plaintiff having falls on two occasions only, in the whole of his notes.
"Clinical findings" (i.e. Dr Guirgis' observations) showed normal alignment of the cervical spine and normal rounded contours of the shoulder joint. There was muscle guarding and tenderness noted in the muscles on the back. These observations are dependent upon the plaintiff's complaint of pain, as is the evidence of reduced abduction power against resistance and tenderness over the rotator cuff. The lumbar and thoracic spines were also normal but there was guarding.
Dr Guirgis attaches copies of the plaintiff's investigations (Exhibit A, p. 38) and sets out the following: 1. MRI evidence of tendinosis of the anterior to mid supraspinatus tendon with a high-grade partial thickness articular surface insertional tear of the mid supraspinatus tendon and some mild atrophy. 2. MRI evidence of a small insertional tear of the supraspinatus tendon and of a Buford Complex (although this is described as a "normal" phenomenon). 3. Age-related degenerative changes and musculoligamentous sprain or strain to the intervertebral discs in the lumbar area and a right L5 radiculopathy. 4. MRI evidence of a complex tear of the medial meniscus in the left knee and of the lateral meniscus in the right knee which "might have happened as primary injuries in the road traffic accident or as a result of the giving way attacks that followed his lumbar spine injury."
He recommended conservative treatment at the present stage but, in addition, the following more intensive treatment, at an unspecified time in the future: 1. For the lumbar spine, a selective nerve root block or a discectomy ($20,000). 2. Steroid injections for the left and right shoulders. Surgery for the right shoulder in the form of rotator cuff repair may also be necessary ($10,000). 3. Arthroscopic medial meniscectomy for both the left and right knees ($5,000 for each knee).
The plaintiff's claim for future out-of-pocket expenses includes all of these amounts in full, plus the cost of future conservative treatment.
Dr Guirgis also considered the plaintiff was entitled to home help of six hours a week for heavier tasks around the home. While I have not placed weight upon this, because there are reports from occupational therapists which should be preferred and because no claim is made, Mr Wilson submits it is noteworthy that such an extreme proposal would be put.
Dr Guirgis' second report, dated 26 March 2018, is largely identical; the same findings are set out and the same costs are given. In a new section, headed "Fitness issues", Dr Guirgis adds: "I note here that after the accident he continued to work for about 14 months in the delicatessen which was light work. He was struggling with the prolonged standing and repeated bending and squatting required for the deli duties. I consider such struggling to be consistent with his injuries. He was trying to find suitable duties but was unfortunate in this regard."
No details of the "suitable duties" are given. The plaintiff did not give evidence of any such attempts apart from visiting coffee shops to ask for work as a sandwich hand. No date for these attempts was given, but in March 2018, the plaintiff was attending an English course for three full days a week, which would have been a problem in terms of employment.
The third report dated 22 May 2019 is described as an "update", but is essentially a "cut and paste" summary of the two earlier reports. This includes the only observations Dr Guirgis makes about causation, which is that the physical findings are consistent with the history of injury as described and concordant with the plaintiff's symptoms, signs, incapacities and disabilities.
Dr Guirgis' summary of the investigative reports paints a grim picture of a patient requiring a range of future increasingly invasive treatments, ranging from steroid injections to surgery. Although he does not expose his reasons for making the connection, Dr Guirgis attributes all of these injuries and disabilities to the motor vehicle accident.
The plaintiff's general practitioner, Dr Tomka, has provided a report in similar terms, supportive of the treatment regime proposed by Dr Guirgis.
A medico-legal report from Dr Maniam is in similar terms. I note the dramatic account of the accident given by the plaintiff to this doctor, which included statements that the plaintiff's car was "damaged but not made undriveable" and that the plaintiff "was able to self-extricate and inspect the damages" (Exhibit A, p. 122). That is contradicted by the dashcam footage. There was no damage to the plaintiff's car. Dr Maniam's conclusions connecting the injury to the accident based on "the dynamics of the accident" are wholly undermined.
Neither of these doctors had the benefit of seeing the surveillance video or being told about the plaintiff's 14-month employment history at the delicatessen during the year following the motor vehicle accident. It is hard to understand how Dr Tomka was unaware of this, as he saw the plaintiff regularly over this period.
One factor about which Dr Tomka was aware was the plaintiff's need for surgery in 2014 because of his longstanding morbid obesity problems. The referral for this treatment must have come from Dr Tomka, as Dr Durmush wrote to Dr Tomka about these problems on 14 January 2014 (Exhibit 1, p. 201) and 14 February 2014 (Exhibit 1, p. 185). Dr Durmush continued to see the plaintiff about this condition until 2 June 2015, six months before the car accident (Exhibit A, p. 167).
In addition, since the problem was psychological as well as physical, the plaintiff was referred to a psychologist, Ms von Lojewski, who, as is noted below, wrote in her notes that the plaintiff's longstanding obesity problems meant he had "difficulty working (physical) due to weight" (Exhibit A, p. 200).
This gives rise to the possibility, discussed by Dr Yu, that this surgery, carried out on 7 March 2014, was performed for health reasons relevant to the plaintiff's pre-accident medical condition. None of this is referred to in Dr Tomka's report and his notes prior to 2015 are terse one-line entries (Exhibit 1, p. 147). (I note, for example, that an entry for 2 August 2013 that the plaintiff is "fit for pre [illegible] duties".) This is one of a number of unexplored medical issues involving the plaintiff.
Another is that he had extensive crown and bridge work on his teeth on 17 November and 7, 11 and 18 December 2015, which included extraction of two teeth on 7 December 2015, which is the day of the accident (see the report dated 1 November 2019 from the dentist, Dr Pedranovic, in Exhibit A at pp. 143 - 4). He had two further appointments on 12 and 19 January 2016 including a post-crown build-up on tooth 28, which anchored a 5-unit bridge, and a further extraction. How was he able to have all this dental work done between 7 and 18 December 2015 while being in pain in his neck and shoulders? The work continues into 2016 and is a "transcript" of treatment, not a quotation. Is this even the right plaintiff? This evidence was not referred to by either party, so I do not propose to take it further.

[19]

The defendant's medical evidence: Dr Yu

Dr Yu prepared two reports, dated 16 November 2016 and 29 June 2018. In his report of 16 November 2016, Dr Yu noted the following ongoing disabilities: "A 'squeezing, tight feeling generally in his head, affecting him intermittently. A dull ache in his neck, at first only in the midline on the evening of the day of the subject accident. On the day after accident, he said that the neck pain spread to involve both of his shoulders. He said that his neck pain spread as far as the front part of the mid-arm, either on his left side or his right side but never on both sides at once. He reported a heaviness in his low back over an ill-defined area, involving both sides of the low back. Persistent weakness in both knees and both legs, to the point of falling whilst walking, starting between 1.5 and 2 months prior to my assessment. He reported rarely having tingling that did not involve the buttock or the low back, but started in the outer thigh, then spread to the front of the knee and the inner part of the leg in each lower limb."
Dr Yu then sets out his observations of the plaintiff's neck, mid back, low back, shoulders, upper limbs and lower limbs. He noted the results as being normal and that inconsistencies demonstrated during active range of movement were not consistent with a genuine response.
Dr Yu gives a very different description of the MRI results to that of Dr Guirgis: "An MRI of the whole spine was reported on 03.05.2016 to have found multi-level, constitutional, degenerative changes in the cervical spine. There was no evidence of compression in relation to any nerve root or the spinal cord. The MRI whole spine was also reported to show similar multi-level, constitutional degenerative changes throughout the thoracic spine. Additionally, multiple widespread tumours were identified, being 'most likely nerve sheath tumours, which may be associated with neurofibromatosis, when they represent neurofibromata'. Such tumours are neither associated with nor attributable to acute injury or trauma, whether or not that trauma is of a major kind. The MRI of the whole spine finally reported multi-level, constitutional, degenerative changes throughout the lumbar spine as far at least at the S1 level. This included but was not limited to the presence of osteophytes, the development of which requires years or decades. It was an osteophyte that was noted to be associated with a 'moderate narrowing of the left neural exit foamen' and possible 'degree of impingement on the left L4 nerve root'. Despite this, the report indicated that there was 'no definite impingement on the right L4 neve root'. A nerve conduction study was reported by Dr Raymond Schwartz on 11.05.2016, concluding that there was 'electrophysiological evidence of a mild right L5 radiculopathy' and that there was 'no evidence of peripheral neuropathy' In the context of the physical examination findings in this report, this electrophysiological finding is not associated with current clinical disease. This is consistent with either a temporary or permanent resolution of the previous mild right L5 nerve root disorder."
Having set out these findings, Dr Yu then applied them to the dynamics of the collision, noting the following relevant factors: "He confirmed details in the police report he was wearing his seatbelt at the time of the collision, and that the airbags in his vehicle were not deployed. He told me that no part of his body struck the inside of the cabin of his car at the time of the collision. Upon collision with the rear of vehicle by the vehicle behind him, he told me that this body swayed forward then back, this is contrary to the expected movements of his body with respect to a rear-end collision. He denied losing consciousness at any time during or after the subject accident. He reported that immediately after the subject collision, his vehicle was not pushed to collide with the vehicle in front of him. He told me that he self-extricated from his vehicle, walked around the scene of the accident and had no symptoms. After exchanging details with the other driver, he said that he drove his vehicle home, also without any symptoms. On the day of the collision, neither police nor ambulance were called to the scene of the accident. The police report confirmed that on the day of the subject collision, both Mr Prodanovic and the other driver 'got out of the vehicle and exchanged details, nil vehicles towed and at the time both drivers had no injuries'. The police report further confirmed that upon assessment, Mr Prodanovic's 'injury and/or treatment was not significant to be classified as a major crash'. The weather conditions at the time of the collision were noted in the police reported to be 'fine' and on dry, sealed road. The police report further confirmed that neither vehicle involved in the subject collision weighed more than 4.5 tonnes. He said that the first time that he had any symptom after the subject accident was after 18.00. This was after he had driven his vehicle home. At that time, he reported the start of pain in his head, neck and low back. He used Panadeine tablets, which reduced but not eliminated the pain. He then used further inherently required him to frequently or constantly perform manual handling outside of the space within one arm's reach in front of the chest. He did not consult a doctor about his symptoms until seeing Dr Krisimir Tomka in the morning of 08.12.2015, on the day after the subject accident had occurred. Mr Prodanovic told me that pain in each of his shoulders did not start until the day after the subject accident. After following advice from Dr Tomka to use Panadeine Forte and a sedative (Normison) for pain-related difficulty with sleeping, as well as attending physiotherapy, Mr Prodanovic confirmed that the treatment was effective and the intensity of his pain improved."
With one proviso that I have dealt with in more detail below, Dr Yu considered that the plaintiff did not suffer any permanent injuries in the subject accident at all.
The one exception is expressed to be that, in the absence of the subject collision, his pre-existing conditions would have made him unfit for work to the same extent that he is unfit for work now. The pre-existing, constitutional, degenerative changes affecting the plaintiff impacted on his ability to carry out his duties, but there were no injuries or ongoing disabilities attributable to the accident.
This discussion of pre-existing conditions is set out in more detail in Dr Yu's second report. He sets out that the plaintiff has multi-level, multi-regional, long-term, constitutional degeneration as well as tumours associated with neurofibromatosis. He also has knee and shoulder findings which could not have resulted from the minor impact of the motor vehicle accident. The results are inconsistent with evidence of body trauma because they are constitutional in nature or unrelated to the impact.
Dr Yu summarises these complex issues as follows: "The evidence that bodily trauma from the subject accident was not of a major kind. The absence of any consistent, objectively verifiable evidence of a physical basis for any of his accidence-related health complaints during my examination of him on 19.06.2019. The absence of any consistent, objectively verifiable evidence of a physical basis for any of his accident-related health complaints on my examination of him on 04.10.2016, according to my report dated 12.10.2016. The inconsistency between the bodily locations, extent and nature of Dr Schwartz's findings, compared to those of Dr Thompson's findings, and to Mr Prodanovic's accident related health complaints, and to my findings on examining him. The non-provision to me of any contemporaneous clinical record of Mr Prodanovic's health from any of his treating doctors prior to the subject accident. This is in the context of the objectively verifiable scars and his reported pre-accident medical conditions. His reported pre-accident history of having obesity of a sufficiently severe and prolonged nature as to have provided sufficient medical justification to a treating surgeon to perform weight loss surgery on him. The consistency between the extent and severity of long term, constitutional, structural degeneration as described by Dr Thompson, Dr Soper and Dr Brown, compared with Mr Prodanovic's reported history of obesity of a sufficiently severe nature to have justified weight loss surgery. The nature and extent of his duties and nature of his workplace environments in his role as a gyprocking labourer both before and in the 10-day period immediately following the subject accident. The consistent, persistent worsening of all of his accident-related health complaints as he performed his duties in gyprocking with Alcon in the 10-day period following the subject accident. The non-provision to me of any record of his health, safety, attendance, performance and productivity in his role with Alcon before and since the subject accident, including any declared reason for resignation or withdrawal from any contractual obligations with Alcon. Deli Delight's reported ability to turn a profit after the subject accident, after making a loss in the year before the subject accident, in the context that he denied doing any work other than gyprocking until 18.12.2016 at any time after the subject accident."
Dr Yu concludes that none of the treatment the plaintiff had received since 4 October 2016 had been appropriate, reasonable or necessary and stressed the absence of any consistent or objectively verifiable evidence of a physical basis for any of the ongoing complaints. In particular, he noted the consistency between the extent and severity of long-term constitutional structural degeneration compared with the history of gross obesity requiring weight loss surgery on medical grounds. Other than with respect to the left knee injury bracket, which is unrelated to the accident, there was no reasonable medical basis for the plaintiff to be anything other than fully fit to work, including working as a full-time gyprocking labourer (Exhibit 1 p. 45). Even if the plaintiff's inability to perform that work arises from his problems with his knees, those knee injuries are unrelated to the very minor body trauma caused by the motor vehicle accident.
The factual complexity of the medical evidence set out in this report has required me to set out large portions of it in full. Essentially what Dr Yu says is that none of the plaintiff's injuries and ongoing disabilities relates to the motor vehicle accident the subject of this claim.
Dr Yu's observations about the plaintiff's weight issues being relevant to his pre-accident medical condition are supported by the notes of Ms von Lojewski, a psychologist who saw the plaintiff as part of the treatment team following recommended sleeve gastrectomy for morbid obesity on 14 January 2014. The plaintiff, who was then weighing 142 kg, told her that he had "always been big" (Exhibit A, p. 199) and had "difficulty working (physical) due to weight" (Exhibit A, p. 198); one of his expressed hopes from the surgery was "no pain" (Exhibit A, p. 200). The plaintiff's operation in March 2014 resulted in his weight dropping down to 74 kg, which would have been a significant body change after a lifetime of obesity, and was followed up by the treating surgeon until June 2015. This was a major change to the plaintiff's physical health.

[22]

Conclusions concerning the plaintiff's ongoing injuries and disabilities

Where there is significant evidence inconsistent with the claims of chronic pain and/or psychiatric disabilities, the Court must adopt the careful analysis which the Court of Appeal urged was necessary in Whalan v Kogarah Municipal Council [2007] NSWCA 5.
The defendant bears the onus in relation to causation issues. Unfortunately, defendants often embark on this exercise without defining the causation issue in question. Is there no injury at all, or a pre-existing condition, or a post-injury condition? In the present case, at least the first two of these appear to be asserted.
If there were nothing wrong with the plaintiff, it would be a simple matter of proving that the plaintiff had no injuries and thus no entitlement to compensation. The problem in these proceedings is that the plaintiff has other causes for his injuries, both physical and psychological. While I am satisfied that the plaintiff is embellishing his symptoms, the fact remains that he does have ongoing issues in relation to his knees of some significance, as Dr Yu acknowledges.
In Seltsam Pty Ltd v Ghaleb [2005] NSWCA explained the defendant's onus in relation to pre-existing conditions as follows: "6. The onus of proof that a defendant must discharge when alleging that a plaintiff's pre-existing condition was a contributing factor to his or her injury arising from the negligent act or omission in question is that explained in Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164. Nothing in those cases imposes an onus on the defendant to prove that a pre-existing condition had made a material contribution to the plaintiff's injury. 7. The onus of proof a defendant has to discharge according to Watts v Rake and Purkess v Crittenden is subject to the principles expressed in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 when the circumstances involved include hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring. Malec v JC Hutton Pty Ltd indicates that the court is required to evaluate possibilities in these circumstances and is not concerned with proof on a balance of probabilities. This means that a pre-existing condition proved to have possible, not probable, on-going harmful consequences to a plaintiff cannot be disregarded by the court."
The medical reports tendered by both parties in this case demonstrate the difficulties caused where doctors are not provided with vital information such as accurate details of employment and where the opposing side's analyses of the injuries suffered are left to the Court to determine without the benefit of expert analysis. In the present case, Dr Tomko does in fact respond to Dr Yu's report, but instead of answering the medical issues raised, simply describes it as biased and pointing in particular to a typographical error in answer to question six where Dr Yu put in the name of another patient by mistake. Dr Yu was similarly uncomplimentary, describing the plaintiff's treatment as inappropriate.
When considered in the objective and chronologically accurate manner recommended in Kostic, the plaintiff was struggling with significant changes in his life in the months immediately prior to the motor vehicle accident. He had undergone surgery which halved his weight and for which he was still seeing the doctor in June 2015; he had had to take over his father's delicatessen after his death in April; he and his wife had separated. Then, in December of this same year, he was involved in the motor vehicle accident the subject of this claim.
I am satisfied that this accident resulted in the soft tissue injuries identified by Dr Moloney and some shoulder problems, but that these problems (apart from the tear, which I do not regard as attributable to the accident) largely resolved in the months following the accident, over which time the plaintiff continued to work in the delicatessen without paid assistance.
I am further satisfied that he was not assisted by his wife in this activity. Mr Wilson asked me to draw a Jones v Dunkel inference from the plaintiff's failure to call his former wife. While I note she has been absent overseas and only recently returned, her evidence could have been given by AVL. I note that she provided evidence in the proceedings before the claims assessor. I am prepared to draw the inference.
The degree to which the plaintiff's shoulder injuries preclude his continuing to work as a gyprocker is unclear. I prefer the view taken by Dr Yu to that of Dr Moloney and I do not regard the tear as attributable to the accident.
I am satisfied that the plaintiff did not injure his knees in the accident. I see it is significant that Dr Moloney does not even refer to these injuries. I accept the view taken by Dr Yu that the plaintiff would have difficulty working as a gyprocker if his knees require the surgery asserted to be necessary in the plaintiff's medico-legal reports.
Having made these findings concerning the medical evidence, I now apply my findings to the heads of damage

[23]

Past economic loss and superannuation

The plaintiff continued to work on his usual salary until work ceased for the Christmas break. There is no economic loss for this period and I note the plaintiff did not expect to be employed over the January holidays (he was, however, working in the delicatessen). His economic loss would commence from the time he was due to return to work.
I am satisfied that he was working in the delicatessen full-time, given the turnover figures and the hours during which the delicatessen was open. This continued for approximately 14 months and it is hard to see how any claim for economic loss can be made out during this period.
After the delicatessen closed, the plaintiff could have obtained employment but chose not to do so. I do not accept his evidence of walking into coffee shops in Liverpool asking for work. The plaintiff was able to commit to three full days of English studies per week for approximately a year and a half during this period, and could just as easily have obtained work driving a taxi or some other form of employment.
In reality, the plaintiff's gyprocking employment had simply come to an end as a result of his contractual obligations being completed and I am satisfied that he decided to move into the delicatessen business for reasons of preference rather than injury. The plaintiff's ongoing marital problems may also have been a relevant factor. He did well in the delicatessen business and was able to make a profit. I am satisfied he only closed the delicatessen because of the shopping mall renovations, and not because of ongoing disabilities.
The significant problems I have with the plaintiff's credibility make it difficult to assess what allowance should be made for the period of time between the closing of the delicatessen and the hearing of these proceedings. He has had no difficulty participating in what sounds to have been a time-demanding English course, which would involve not only driving but also sitting for long periods.
Given my findings as to the plaintiff's credibility, I am satisfied that he made a complete recovery from the soft tissue injuries he suffered in the motor vehicle accident in the months following the accident, namely by early to middle 2016.
Where a claim is made for soft tissue injuries requiring time off work, even if the claimant has still been working, courts may be generous and award a lump sum. I cannot do so because the plaintiff's "all or nothing" approach mean that such a submission was not put and therefore not answered by the defendant.
I do not accept the plaintiff's claim that he suffered from any psychiatric or psychological injury or disability as a result of the motor vehicle accident. If I have erred in this regard, I would be satisfied by reason of the report of Mr Protulipac that he had made a complete recovery by May or June 2016.
In those circumstances, no allowance should be made for past economic loss or superannuation.

[25]

Future economic loss and superannuation

Section 126 of the Motor Accidents Compensation Act provides: "126 Future economic loss - claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted."
For the reasons set out above, I am not satisfied that the plaintiff suffered from any accident-related restriction productive of financial loss. As to s 126(1), I cannot be satisfied as to the plaintiff's most likely future circumstances but for the injury in circumstances where the plaintiff's doctors are "the victims of [his] mendacity", to use the phrase employed by Meagher JA in Dybka v McKenzie at [7]. The same is the case in relation to s 126(2). Nor can I formulate the assumptions necessary under s 126(3) on which the award is based or the relevant percentage by which the damages are adjusted.
As previously noted, the parties approached this case on an "all or nothing" basis. In Cupac v Cannone [2015] NSWCA 114 the Court of Appeal noted the difficulties of first instance judges "faced with conflicting medical reports which he had to assess without the benefit of cross-examination or a conclave of experts" (at [39]), particularly when confronted by two extreme views. This did not mean, however, that the first instance judge should adopt a middle course, unless that was dictated by the evidence.
The correct approach to assessment is set out in Malec v. J.C. Hutton Pty Ltd (1990) 169 CLR 638, where Deane, Gaudron and McHugh JJ state at 643: "If the law is to take account of future 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 … 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."
In Medlin v the State Government Insurance Commission (1995) 182 CLR 1, Deane, Dawson, Toohey and Gaudron JJ stated at [6]: "For the purposes of the law of negligence, the question of whether the requisite causal connexion exists between a particular breach of duty and particular loss or damage is essentially one of fact to be resolved, on the probabilities, as a matter of common sense and experience. And that remains so in a case such as the present where the question of the existence of the requisite causal connexion is complicated by the intervention of some act or decision of the plaintiff or a third party which constitutes a more immediate cause of loss or damage … The ultimate question must, however, always be whether, notwithstanding the intervention of the subsequent decision, the defendant's wrongful act or omission is, as between the plaintiff and the defendant and as a matter of common sense and experience, properly to be seen as having caused the relevant loss or damage." [Emphasis added]
This is not a case where "the negligent act or omission was itself a direct or indirect contributing cause of the intervening act or decision" (Medlin at [6]). The plaintiff could, for example, have claimed that he worked in the delicatessen because he was able to do that work more easily than working on a building site due to his injuries, and that he proposed to seek work of that kind in the future. However, this would have entailed a frank acknowledgement of his work activities and of a residual capacity of some capacity for such work in the future. Instead, the plaintiff claims damages on the basis of close to total incapacity for past and future employment as well as a cushion for the loss of the delicatessen on the basis that his disabilities (not the shopping centre renovation) resulted in its closure.
That is not, however, the case put forward by the plaintiff, or the case the defendant has come to court to meet, and I must determine the disputed issues of fact based on the way the case has been conducted.
A plaintiff is only compensated for what he or she has actually lost, but there must be an actual loss of capacity caused by the defendant. McHugh J stated in Medlin at [18]: "Damages can be awarded for loss of earning capacity, however, only to the extent that that loss produces or might produce financial loss… In Mann v Ellburn the Full Court of South Australia preferred an approach that compensates the plaintiff to the extent that the loss of earning capacity has resulted in a loss of probable earnings and the loss of a chance to exploit any residual capacity that would probably not have been exploited even if the accident had not occurred. I see nothing wrong with that approach in most cases. It gives effect to the fundamental principle underlying the assessment of damages that a person is only compensated for what he or she has actually lost. But, as the judgments of the Supreme Court in this case show, it is an approach that can mislead a court in a case where the plaintiff continues in employment. It is always necessary to bear in mind as Bright J said in Mann that 'one first of all determines that there has been a loss of capacity, and then having regard to the establishment facts of the past and the probabilities of the future one determines that flow from the loss of capacity'."
All of the evidence points to there being no "loss of capacity" caused by the defendant, as the plaintiff made a full recovery from soft tissue injuries and had no (and certainly no remaining) psychiatric disability. For the plaintiff to satisfy s 126, a realistic connection must be made between the circumstances of his injury and his ability to work in future which, approaching the facts as a matter of common sense and experience, cannot be made out.
No allowance should be made for future economic loss or superannuation.

Prodanovic v Mahoney

At a glance

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Judgment (29 paragraphs)

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Legislation Cited (1)

Cases Cited (17)