By an Amended Statement of Claim filed on 27 December 2013 the plaintiff claims damages for injuries suffered by him in a motor vehicle accident on 7 April 2003.
By an Amended Defence filed on 24 January 2014 the defendant denies that he was negligent and pleads that the plaintiff's injuries were caused or contributed to by the plaintiff's own negligence. By leave granted on 25 August 2014, a Further Amended Defence pleads that the plaintiff failed to mitigate his damages said to arise from a reduced capacity to work
The motor vehicle accident occurred at the intersection of Maitland Road and Silsoe Street, Mayfield at approximately 7.45am on 7 April 2003. The intersection was controlled by traffic lights. Maitland Road is a major arterial road running generally west to east, and is one of the main roads for traffic heading into Newcastle City. Silsoe Street runs generally from south to north to its intersection with Maitland Road. To the north of the intersection Silsoe Street became Carrington Street. Both the plaintiff and the defendant, claim to have entered the intersection with a green light facing them.
Following a trial that took place over nine days in 2008, Judge Sidis delivered a judgment on 15 May 2009 in which she found a verdict and judgment for the defendant. On appeal to the Court of Appeal, that verdict and judgment were set aside (see Singler v Ferguson [2010] NSWCA 325), and the matter was remitted to this court for rehearing. That rehearing took place over two sittings of the court at Newcastle, and occurred over nine days in May and August 2014. The submissions were completed in Sydney on 19 February 2015.
On 17 May 2013 a review panel of the Medical Assessment Service ("MAS") issued a certificate which assessed the whole person impairment of the plaintiff at 4%. This meant that the plaintiff was not entitled to an award of damages for non-economic loss, pursuant to s 131 of the Motor Accidents Compensation Act 1999 (NSW) ("MACA").
On 5 May 2014, at the commencement of the trial, the plaintiff, through his Queen's Counsel, sought an order rejecting that assessment, and an order to have the court reassess the plaintiff's whole person impairment, or alternatively, an order that the matter be referred back to the MAS for assessment. That application was dismissed (see separate judgment and reasons delivered on 19 August 2014).
By consent, the evidence in the first trial, including the transcript and exhibits, were tendered in the trial before me. In addition, both the plaintiff and defendant gave oral evidence and were cross-examined. The defendant also required for cross-examination Mr Grant Johnston, consulting engineer, Dr John Bentivoglio, orthopaedic surgeon, and Dr Jonathon Phillips, consultant psychiatrist. Dr Bentivoglio gave his evidence by telephone.
On the issue of liability, it is necessary to set out the evidence of the plaintiff and defendant given at both trials, and the evidence of a Mr Lewis, who was a passenger in the defendant's car, which was given at the first trial. The defendant did not call Mr Lewis at the second trial.
[2]
The Plaintiff's Evidence as to Liability at the First Trial
At the first trial on 26 May 2008, the plaintiff gave evidence that he was travelling north along Silsoe Street towards the intersection of Maitland Road at 50 kph. He gave the following evidence:
"Q: And as you got towards the intersection what light was being displayed by the traffic control lights?
A: I had the green.
Q: And as you proceeded towards the traffic control lights what did you observe at the intersection in front of you, if anything?
A: That there was two cars on the right hand side next to each other in the two lanes heading west.
Q: Were they stationary?
A: Yes they've got the red lights. And there was a car on the inside lane heading west stopped at the lights.
Q: Heading west or east?
A: Heading east …
Q: As you proceeded through the lights, as it were, into the intersection, did you observe something occur?
A: The lights changed to orange as I'm crossing the intersection, so I didn't sort of back off. I couldn't have stopped. I was actually into the intersection at that time.
Q: Yes?
A: And then the four-wheel drive ute swerved around the stationary car parked on the inside lane and entered the intersection across in front of me.
Q: And did you apply your brakes?
A: I hit the brakes yes.
Q: And did that vehicle - did it appear to endeavour to slow down?
A: No.
Q: When you first observed it, how far was it away from this vehicle that was stationary in the inside lane?
A: Very close.
Q: And was that the first occasion you observed it?
A: Yes.
Q: An impact occurred. What portion of your vehicle came into impact or what portion of the other vehicle came into impact with you?
A: He came across in front of me and the front of my car collided with his driver's door and the back tray."
The plaintiff gave evidence that he spoke to the driver of the other car following the collision. He gave this evidence:
"Q: And what did he say?
A: He just said, you know - I said to him, 'Was that a good - that's a good start to the morning', and he asked if it was red and I said 'Yeah, mate. You went through a red light'.
Q: And what did he say to that?
A: He said went, 'Oh' and walked off. Yeah."
The plaintiff then gave evidence that whilst standing on the footpath he heard the driver say to his passenger:
"Q: What was it you were able to hear?
A: That, 'When the police come we'll tell them we had the green. There's two of us. There's only one of them. No witnesses stopped."
The plaintiff gave evidence that no other vehicles stopped following the accident. When the ambulance arrived they wanted to take him to hospital but he refused to go because of what he heard the other driver say. He wanted to make sure that he saw the police first and he made a statement to the police. That statement (exhibit 4) read as follows:
"I was travelling nth in Silsoe St about 50kph. The traffic lights were green as I approached the traffic line the traffic lights turned yellow. I proceeded to go thru. A white ute travelling east on Mait Rd collided with the front of my car. The driver of the car approached me and said 'was that red?' I said 'yes'."
In cross-examination the plaintiff agreed that until he was right at the intersection it was difficult to see what was coming at all from his left on Maitland Road. He agreed that he did not back off as he entered the intersection and that his speed was 50 kph constantly right through the intersection. He denied being in a hurry to pick up a workmate. The defendant's case was put to the plaintiff as follows:
"Q: And what happened with you Mr Singler is that as you approached the lights you made an assessment that the other cars in Maitland Road were stationary and you'd be able to get across in front of them, even though the light had turned red in your direction?
A: No.
Q: That's what happened isn't it?
A: No.
Q: And what you didn't take into account of was the fact that there was a vehicle moving in Maitland Road from your left to right, that is, in an easterly direction, which was coming towards the lights and was moving at the time that they changed to green. That's what you didn't take into account of, wasn't it?
A: No.
Q: And what I want to suggest to you is that the defendant's vehicle in fact came through a green light that had just changed to green, that you came through a red light and that's how the collision occurred?
A: Do not agree."
It was put to him that the conversation with the other driver, about which the plaintiff gave evidence in chief, never occurred, with which the plaintiff did not agree.
It was put to the plaintiff that the defendant's four-wheel drive vehicle was going a bit slower than his vehicle through the intersection, with which he disagreed. The plaintiff had given evidence that the four-wheel drive vehicle was going "fairly fast" and was challenged in cross-examination about that answer. It was put to him that he had never before giving that evidence suggested that the other car was travelling fast. He said he was not sure.
[3]
Defendant's Evidence as to Liability at the First Trial
The defendant gave evidence that he was driving a white Toyota Hilux work vehicle with a load of sand on the back tray. It was a 2.4 litre capacity petrol engine and he had stopped in Fawcett Street while his passenger, Mr Les Lewis, retrieved something from his residence and then the vehicle proceeded from Fawcett Street to turn left into Maitland Road. There were two lanes in Maitland Road and he proceeded in the lane nearest to the kerb. He observed the lights at the next intersection to be red for vehicles travelling in his direction (east) on Maitland Road and he observed a vehicle stationary in lane one at those traffic lights. He gave the following evidence:
"Q: And you said you drove towards the back of that car?
A: Yes.
Q: Is that right and what happened as you did that?
A: I was slowing down because the lights were still red, I was doing maybe 30-35k's.
Q: Yes?
A: Then the lights changed green.
Q: Yes?
A: I changed into the right lane or the fast lane or lane number 2.
Q: Were there any other vehicles in that lane?
A No.
Q: And how did you go about changing into that lane?
A: I indicated and moved - checked my blind spot and moved into the right lane.
Q: Alright, what happened then?
A: I continued into the intersection doing approximately 45kph."
The defendant gave evidence that the stationary vehicle in lane one had started to move but he was in the middle of the intersection when he observed that. He gave the following evidence:
"Q: Alright and as you came into the intersection what speed were you doing?
A: 45k's
Q: And what happened?
A: Another vehicle, I think it was blue or a grey Commodore, collided into the side of me.
Q: Which side did it collide?
A: In the driver's side.
Q: And where did it come from, did you see?
A: It came from Silsoe direction, heading towards Carrington Street. I think they're the names of the streets.
Q: Did you see this vehicle that collided with you before the collision?
A: Oh half a metre, half a metre, just a peripheral vision, out of the corner of my eye I seen a vehicle. You can't move a car that quick.
Q: I'm sorry, I missed the last bit of your answer?
A: Yeah, it was probably just out of my peripheral vision. They may have been 2 metres away, 1 metre away, before I actually spotted him, but I can't move a car that quick.
Q: Okay. When you came through the intersection what colour was the traffic light facing your direction?
A: Green."
The defendant gave evidence that because his vehicle was blocking the intersection when it came to a rest, he moved it and parked it in Carrington Street. He then went and spoke to the other driver. He gave the following evidence:
"Q: And when you went, where was the drive of the other vehicle when you went over to see?
A: Standing alongside his car.
Q: Did you have a conversation with him?
A: No. I did speak to him but I got no reply.
Q: What did you say to him?
A: I went over to him and seen if he was okay.
Q: Yep?
A: And then I said to him 'Mine was not red'.
Q: And did he say anything to you?
A: No."
The defendant then gave evidence that the driver later came over to him and spoke to him:
"Q: What did he say to you?
A: He told me that his light was yellow, somewhere in the conversation.
Q: Yes?
A: And he was running late for work."
In cross-examination the defendant estimated that the distance between the intersection at Fawcett Street and Silsoe Street was about 60 metres.
He described his driving as follows:
"A: There was 60 metres to travel, I come out of the street at Fawcett Street, my speed may have reached 35, between 25 and 35, I was braking to slow down behind the van that was stopped. The lights changed green, I changed to the right hand lane and proceeded through the intersection and that's when the accident occurred."
The defendant was further cross-examined as follows:
"Q: You should have been preparing to stop your vehicle, but instead of that you increased its speed and decided to run the light, didn't you, when it was red?
A: No.
Q: When you come to that intersection and you look to the right, your view is obscured in respect of vehicles that are coming out of I think Carrington Street or Silsoe Street?
A: Silsoe.
Q: Is that not correct?
A: It is impeded.
Q: Yeah?
A: But when you've got a green light, sometimes you don't always check the intersection.
Q: And you see how far were you from the lights when you say the lights changed to?
A: I was approximately four car lengths behind the blue stationary vehicle in the same lane. I changed lanes and then increased my speed.
Q: And you see, you say that - did you look to see whether anyone was coming out of Silsoe Street?
A: I had a green light and I'm sure not everybody checks every single side street they drive up.
Q: You didn't have a green light all the way, though, did you?
A: Yes.
Q: What, from when you came out onto the roadway?
A: From Fawcett Street.
Q: Yeah it was red?
A: It was red but that's 60 metres away.
Q: Yeah it stayed red right up until the time that you swerved around the back of vehicle in front of you and went through the intersection, isn't that correct?
A: I'll get you to explain that one again because I was thinking about--
Q: It remained red until the time that you decided to swerve around the vehicle that was stationary at the lights and proceed through the intersection when the light was red, isn't that correct?
A: No. It was red until I was four or five car lengths behind the blue van, before - I changed lanes when the light turned green.
Q: The vehicle that was in that lane, the van in front of you, when you passed it by it was still stationary at the lights, wasn't it, because the light was red?
A: It was rolling off the mark.
Q: And you see, you say you didn't see the other vehicle until it was virtually right upon you, is that correct?
A: The one I had the accident with?
Q: Yeah?
A: Yes."
It was put to the defendant that he swerved around the vehicle in lane one on Maitland Road so as to avoid a rear-end collision. He denied that proposition. It was then put that he ran the red light because he had not observed any vehicle coming along Silsoe Street on his right. He denied that proposition.
The defendant also denied that the plaintiff had said to him following the collision "You went through a red light." The defendant could not recall the whole of the second conversation he had with the driver because it was five years beforehand.
In re-examination the defendant gave evidence that when he came out of Fawcett Street and first turned into Maitland Road, his speed was probably 10 kph as he turned the corner. He was doing 45 kph by the time he got to the intersection.
The passenger in the defendant's car, Leslie Lewis, also gave evidence at the first trial. He was travelling with the defendant to their second job of the day and stopped at the Beaufort Hotel on the corner of Maitland Road and Fawcett Street so that he could retrieve his mobile phone. When he returned to the vehicle the defendant proceeded to turn left from Fawcett Street into Maitland Road, heading east towards Newcastle. He estimated the speed at which the defendant drove around the corner into Maitland Road at 20 kph. He estimated that the distance between Fawcett Street and the intersection of Silsoe Street and Maitland Road was 100 yards. They were travelling in lane one and there was a vehicle stopped at the red lights in Maitland Road in front of them in that lane. He gave the following evidence:
"Q: As you proceeded along Maitland Road towards this Tarago, what did Jeff do?
A: The lights changed green and Jeff proceeded to the other lane and we went through the intersection."
Mr Lewis gave evidence that as he did that, the defendant changed his speed as he drove towards the intersection "just up a bit". The vehicle was 20 yards away from the intersection when the lights changed to green and the defendant drove into the intersection at 40 kph. When asked what happened when the vehicle drove into the intersection he said:
"A: We just heard a screech and a bang."
He did not see the plaintiff's vehicle at all before the accident. He gave this evidence in relation to the other driver:
"Q: Where did you see him?
A: He got out of - he alighted from his car, walked up to the side where Jeff and I worked.
Q: Was there any conversation involving that man?
A: 'I'm running late for work' and 'This is my brother's car'."
In cross-examination Mr Lewis gave evidence that when the lights changed, the blue Tarago in lane one was stationary, but that he moved off and then the defendant's car went around him. He gave evidence that the defendant was three car lengths behind the blue van when he changed lanes. Prior to that the lights had been red.
With respect to his estimates of speed of the vehicle, Mr Lewis said that he did not actually look at the speedometer, and that the vehicle could not drive off quickly with the gear on the back tray. He gave evidence that the speed of the vehicle increased on Maitland Road from 20 kph to 40 kph before the lights changed. He gave further evidence that as the vehicle changed lanes the lights turned to green. He was not trying to protect the defendant and he had spoken to the police about the accident.
In re-examination Mr Lewis gave evidence that he worked for Mr Ferguson for 12 months after the accident but had no ongoing contact with him.
[4]
The Plaintiff's Evidence at the Second Trial
The plaintiff gave the following evidence on 6 May 2014:
"Q: As you approached the intersection from the south, what was the state of the traffic lights?
A: I got into a green and they turned orange as I've crossed the intersection.
Q: What do you next remember happening?
A: I noticed there was two cars stationary heading west at the red light and a car on the left lane heading east on the left. Then the four-wheel drive sort of swerved around that car and then came straight across in front of me.
Q: Where was your vehicle when you saw the four-wheel drive come into the intersection?
A: I daresay the car would have been fully just inside the intersection itself, so a couple of metres into it.
Q: What was the state of the lights at that time?
A: I had the orange.
Q: What part of his car did you hit?
A: It was a single cab ute, so I've got sort of his front door and the tray on the back …
Q: I think you've told His Honour that you entered the intersection as the - I'm sorry - that the orange light changed at a time when you were so close to the intersection that you had to go through?
A: It changed from green to orange as I crossed into the intersection, yes …
Q: And when you got out of the car did you speak to a man whom you believed to be the driver of the other car - other vehicle?
A: I did, yes.
Q: And what did you say?
A: I sort of said 'Oh it's a good start to the day' and then he asked me 'Did I go through a red?' and I said 'Yes you did'.
Q: And what did he say?
A: He just sort of walked off then. …
Q: When did you first see the utility with which you collided?
A: When it was swerving around the car, the stationary car.
Q: And where were you then?
A: Just in the intersection.
Q: And are you able to tell us the colour of the light for you when that other vehicle entered the intersection?
A: Orange."
The plaintiff gave further evidence:
"Q: Now I think you told us yesterday that you heard a conversation between the driver and his passenger in the ute?
A: Yes.
Q: Was that conversation indirectly the cause of you staying until the police officer arrived?
A: It was.
Q: Why?
A: I overheard them saying, 'We'll tell the police that we had the green light, there's two of us. There's only one of him'.
Q: And you wanted to make sure the police heard that?
A: Yes, because no one else had stopped so there were no witnesses."
In cross-examination the plaintiff agreed that he was on his way to pick up a work colleague from Tarin Street Mayfield. He also agreed that he was going via an indirect route so that he could stop at a shop called Ingall Street Takeaway to get a drink. He gave this evidence:
"Q: And you were due to start work at 8 o'clock in the morning?
A: Yes.
Q: You didn't have much time up your sleeve if you wanted to be on time for work that morning, did you Mr Singler?
A: No.
Q: I want to suggest to you that, with all the things that you had to do, stopping, getting a drink, picking up Alex and getting to work by 8 o'clock, you were in a hurry when you were proceedings down Silsoe Street weren't you?
A: No. …
Q: So you had the potential of being late that morning didn't you?
A: Alex is always late, so I wasn't too concerned."
The plaintiff agreed that as he approached the intersection his speed was constant and his estimate was 50 kph although it could have been a kilometre or two more.
The plaintiff agreed that at the first trial he had given evidence that it was very difficult to see to his left along Maitland Road from Silsoe Street until he was practically right on the intersection line. He confirmed the evidence that he had given previously, namely, that the lights changed to orange as he was crossing the intersection. He also gave evidence that he saw the four-wheel drive vehicle of the defendant for the first time when it was behind the dark blue car in lane one, and saw it leave its lane and move into lane two. He gave this evidence:
"Q: Before we get to the swerve, when you first saw it, it was behind the stationary car. Correct?
A: Well, when I first saw it, it was swerving.
Q: Let's be perfectly clear about it. Did you see it in the left hand lane or did you not?
A: It swerved out of the left lane.
Q: If you saw it swerve out of the left lane, you must have seen it in the left lane, musn't you?
A: Essentially, yes. …
Q: At the time you say you first saw the four-wheel drive car, you were committed to travelling through the intersection. Correct?
A: Yes.
Q: And all this happened you say, I take it, in a split second?
A: Seconds, yes.
Q: It didn't take a couple of seconds for you to get from the holding line of the intersection of Silsoe Street to the point of impact, did it?
A: No.
Q: It didn't take you a couple of seconds to get from a position some metres from the intersection to the point of impact, did it?
A: No.
Q: It probably took about half a second or less, didn't it?
A: Approximately, yes.
Q: And in that half a second, you say you saw a car in the left lane, on your left, move out of its lane into the right lane, come past the stationary vehicle, travel the distance that was required from the holding line on Maitland Road and get in front of your car?
A: Yes.
Q: That's just a nonsense, isn't it Mr Singler?
A: No.
Q: What I want to suggest to you, Mr Singler, is that on that morning, you made a terrible misjudgement when you came up Silsoe?
A: I disagree.
Q: You were anxious to get across the intersection as you came up Silsoe Street weren't you?
A: No.
Q: You saw a car stationary to the right didn't you?
A: Yes.
Q: As you came towards the intersection you saw a car stationary to the left?
A: Yes.
Q: The light changed to red and you crossed that intersection on the red light didn't you?
A: No.
Q: What you didn't do was take into account the fact that there was a vehicle coming on your left that was already in motion and not stopped at the traffic lights. Isn't that right?
A: No.
Q: And what happened was that that vehicle came through a green light into the intersection and you ploughed into the side of it, didn't you?
A: No."
It was put to the plaintiff that his evidence about overhearing a conversation between the defendant and his passenger to the effect that they would say they had a green light, was a fabrication which he denied.
The plaintiff gave evidence that he told the police that he had overheard that conversation. The policeman had written things down in his notebook and he had signed that notebook as being complete and true. The statement in the notebook, which became exhibit 4, did not contain any reference to a conversation between the two occupants of the defendant's car. The plaintiff gave this evidence:
"Q: If there had been a conversation along the lines that you allege between the other two men, you would have ensured the policeman put that in your statement, wouldn't you?
A: I'd assume so.
Q: If there was any suggestion that the vehicle with which you collided was travelling at an excessive speed, you would certainly told the policeman about that, wouldn't you?
A: Yes.
Q: It wasn't travelling at an excessive speed by any stretch of the imagination was it, Mr Singler?
A: Yes it was.
Q: How fast do you say it was travelling?
A: It'd be very close to 60.
Q: I want to suggest to you that it was travelling at a speed of about 40-45kph as it came through the intersection. What do you say about that?
A: Well I can't be sure.
Q: What was your answer?
A: I don't know his exact speed, no.
Q: I want to suggest to you that the other vehicle was travelling at a range of 40-45kph as it went through the intersection?
A: I'd say it'd be a bit faster than that.
Q: You'd say it would be a bit faster?
A: Yes.
Q: If I can suggest this, you don't sound very committed about that. Would you be prepared to accept that it may have been a speed as low as 40-45kph?
A: No.
Q: You say do you, about 60?
A: Yes.
Q: If the other vehicle had been going in excess of the speed limit, to your estimation or observation, you certainly would have told the police officer about that wouldn't you?
A: Yes.
Q: The fact of the matter is; you never complained to anybody, in all the versions that you've given about this accident, that the other vehicle was travelling at any particularly high speed, have you?
A: No, I don't agree with that.
Q: You don't agree with that?
A: No. …
Q: Mr Singler what I want to suggest to you is that you did have a conversation with Mr Ferguson, the driver of the other vehicle, after the accident, but it was not in the terms that you have told His Honour about, and what I want to put to you was that Mr Ferguson said to you - the first thing he said was you was words to the effect, 'Are you okay?' Do you agree with that?
A: No.
Q: And that Mr Ferguson said to you, 'Mine was not red'?
A: No.
Q: What I want to suggest to you is that you went over to where Mr Ferguson and his passenger, Mr Lewis, were standing and said 'Mine was yellow. Mine was yellow'. I'm suggesting to you that you said to the others, that is to Mr Lewis and Mr Ferguson, 'Mine was yellow"?
A: I can't remember that.
Q: You also said to Mr Lewis and Mr Ferguson that you were running late for work. You also said to Mr Lewis and Mr Ferguson that the car you were driving was your brother's car?
A: No.
Q: It was, in fact, your sister-in-law's car wasn't it?
A: Yes."
The plaintiff was further cross-examined about the circumstances of the accident on 8 May 2014. He gave the following evidence:
"Q: You said yesterday to His Honour that you saw the Hilux utility 'swerve' as you put it, around the stationary vehicle. I want to suggest to you, you did not see that?
A: I disagree.
Q: I want to suggest to you that you didn't see that because it didn't happen?
A: It did happen.
Q: I want to suggest to you, you could not have seen that?
A: I don't agree."
The plaintiff was further cross-examined as to the circumstances of the accident on 19 August 2014. He gave evidence that at the time he first saw the defendant's vehicle he was just inside the intersection. He stated:
"Q: And it was then that you saw the four-wheel drive, as you explained on the last occasion, swerve as you put it?
A: No, I'd seen him as I sort of crossed the line, swerve. I was probably in the intersection as he came across the front of me. …
Q: When Mr Toomey asked you on the last occasion and you gave a description of a sequence of events leading up to the accident, you described seeing a four-wheel, and you said this, 'I daresay the car was', meaning your car, 'would have sort of been fully just inside the intersection itself so a couple of metres into it'. You've said today you're not too sure whether it was a couple of metres; it may have been some lesser distance, but you were into the intersection - that is to say, crossed into the intersection - at the time that you saw the four-wheel drive vehicle. Correct?
A: I think, yeah. I think so."
The plaintiff was then asked as follows:
"Q: It's the case, is it not, Mr Singler, that you may well have been going faster than 50kph?
A: Definitely not.
Q: When you made your statement to the police officer that I took you to on the last occasion, which became exhibit 4, you didn't say anything in that statement to the police officer about the four-wheel drive vehicle, or the other vehicle - the ute if I can call it that - the ute with which you collided?
A: Yes.
Q: Having swerved or changed lanes before the accident did you?
A: I would have told him what happened yes. …
Q: Mr Singler, it's not until you complete your claim form - that is to say, the personal injury claim form - in August 2003 that we find any version given by you about the other vehicle swerving or changing lanes before the accident. Isn't that right?
A: I'm not sure what was the earliest date, but I've told him what it was and what my memory was, was that he said that was hearsay and the insurance company would work it out.
Q: When you say 'he'?
A: The police officer.
The claim form became exhibit 9.
The plaintiff gave the following evidence:
"Q: What I want to suggest to you Mr Singler, that on the day of the accident you didn't see the four-wheel drive or the ute with which you collided swerve around the other vehicle at all, did you?
A: Yes, I did.
Q: You didn't even see it change lanes, did you?
A: I saw it swerve around the car, yes.
Q: What I want to suggest to you is you didn't see that because you couldn't have?
A: I disagree."
[5]
The Defendant's Evidence as to Liability at the Second Trial
The defendant gave evidence that the sand on the back tray of his vehicle weighed approximately one tonne. The vehicle had a 2.4 litre engine capacity with four cylinders. The defendant was asked whether the conversation alleged by the plaintiff between him and Mr Lewis took place, namely, "We'll tell the police that we had the green light, there's two of us. There's only one of him." He denied that.
In cross-examination the defendant confirmed his evidence that his speed when he came out of Fawcett Street was 10 kph. He had a clear view of the lights at the intersection of Maitland Road and Silsoe Street which were red. He increased his speed from 10 kph to 30-35 kph and when he was "may be 30-40 metres back from the intersection" he had a red light. He did not change speed but just kept going at 30-35 kph. He continued until the lights changed green, at which time his speed was 30-35 kph.
The defendant was cross-examined about his statement to the police (exhibit 4). It read as follows:
"I was driving east in lane 1 at about 25kph. I was approaching the intersection of Silsoe Street and Maitland Road. The traffic light was green. There was a car in front of me starting to move off. I moved into lane 2 and when I was about half thru the intersection a white commodore came from Silsoe Street on my right and collided with my driver's door."
The defendant agreed that he said to the police officer what was in the statement. He was then asked:
"Q: As I understand what you say now, you say that you were travelling at 30, possibly 35, towards a green light. The light had turned green and you were travelling at 30-35kph?
A: Like I said before, the statement is fairly brief. I think there could be more details put into that statement than what actually is written down in the officer's book."
The defendant accepted that he told the police officer that the other vehicle was a white commodore, whereas at the first trial he had given evidence that it was a blue or grey commodore. When asked whether it was white, or a blue or grey commodore, he said:
"A: Very unsure about what colour commodore it was now."
The defendant was also challenged about his evidence that he was travelling at 40 kph in the intersection, whereas at the first trial he had given evidence that he was doing 45 kph. When asked "Were you doing 45 or were you doing 40?" his answer was:
"A: They're pretty close. 40, 45.
Q: You've said in another place that you were doing 40-45 kph. You here said you were doing 45. Does that mean you're unsure of what speed you were doing?
A: No, I was doing 40-45kph.
Q: Doesn't that suggest that you're sure which of those two speeds it was?
A: 40/45, those."
He agreed the speeds were not the same. He gave evidence that he saw the other vehicle when it was about two metres away from the driver's door, with his peripheral vision. He gave this evidence:
"Q: Do you have any explanation as to why you did not see it travelling into and through the intersection before it hit you?
A: Because I was looking ahead to where I was driving."
It was put to the defendant that he had continued down Maitland Road at a relatively slow speed, with which he agreed. He was asked:
"Q: May we take it you did that because you hoped that the light would have been changed to green by the time you got there?
A: No, I was just proceeding down to the set of traffic lights.
Q: Yes; but what I'm putting to you is that it was red in a busy street and green in a minor street and that you hoped that in the 100 metres or so between Fawcett Street and Silsoe Street - in fact it's 103 metres - that in that 103 metres that the Maitland Road light would change from red to green?
A: No."
The defendant said that he did not know at the time of the accident that the traffic lights operated, generally speaking, on the amount of traffic which was using the intersecting streets.
As to the statement he made to the plaintiff after the accident, "Mine wasn't red", the defendant was asked:
"Q: Had it been suggested to you that yours was red?
A: By who?
Q: By anyone. Did anyone say to you, 'Your light was red'?
A: No.
Q: So you went up to the driver of the other vehicle, is that correct?
A: Yes.
Q: And you said to him, 'Mine was not red'?
A: Yes.
Q: What were you replying to?
A: I don't know."
It was put to the defendant that at the first trial he had given evidence that as he approached the traffic lights he was slowing down because the lights were there. In answer to a question, what he was slowing down from, stated "I took my foot off the accelerator". The top speed he had been doing prior to that was 30-35 kph. It was put to the defendant that he was concerned about the load on the back of his truck if he had to slow to a stop:
"Q: And you tell us that it didn't concern you to stop and start again rather than going straight through the lights?
A: No, it didn't concern me."
In respect of his police statement, he was asked:
"Q: You see, how is it that you were able to tell the police officer - I'm reading from your signed statement - 'I was driving east in lane 1 at about 25kph. I was approaching the intersection of Silsoe Street and Maitland Road. The traffic light was green'. There was no stage you were approaching a green traffic light when you were travelling at 25kph, was there?
A: I'm not sure. Sorry.
Q: What do you mean you're not sure? Why aren't you sure? This is your statement?
A: Yeah I don't know what the question - that is my statement, yes.
Q: You told the police officer you were driving in lane 1, about 25. You were approaching an intersection, the traffic light was green and you were doing 25. There's no time according to your story when you were approaching a green traffic light at a speed of 25kph, that's true isn't it?
A: Yeah.
Q: Well why did you tell the police officer that?
A: I can't remember."
There was no re-examination of the defendant.
[6]
Evidence of Grant Johnston
Mr Johnston was qualified by the plaintiff as a consultant engineer specialising in reconstructing traffic accidents. He prepared four reports dated 5 July 2012, 10 July 2012 (two reports) and 8 July 2013. No objection was taken to his qualifications, however, a number of objections were taken to parts of his reports. Some of those objections were upheld and the relevant parts of the reports excised. Other sections of the reports to which objection was taken were not relied on by the plaintiff. Mr Johnston was required for cross-examination, notwithstanding that the defendant had not served any engineering expert report.
Mr Johnston conducted a view and a site survey of the relevant intersection on 27 June 2012, over nine years after the accident. He was able to identify a point of impact between the vehicles within the intersection of Maitland Road and Silsoe Street. To reach that point of impact he expressed the opinion that the plaintiff's vehicle travelled "around 14.5 metres" from the holding line at the southern end of the intersection, whilst the defendant's vehicle travelled "about 12.5 metres" from the holding line to the west of the intersection to the point of impact.
Mr Johnston reported that the traffic signals controlling the intersections operated in a dynamic or adaptive manner, responding directly to actual demand of traffic on each approach to the intersection. For that reason there was no objective means of determining which phase was operating at the time of the collision. However, he reported that there were fixed times for the minimum green phase, pedestrian crossing times, the yellow phase and the red phase. At this intersection the yellow phase was recorded as four seconds and the all red phase as two seconds. This meant that at the end of either green phase the lights displayed a yellow traffic light for four seconds which then changed to a red light. The opposite approach (meaning traffic travelling at right angles through the intersection) remained red for an additional two seconds, during which time both approaches showed red phases so that six seconds after the initial display of a yellow phase, the opposite approach showed a green light.
Mr Johnston reported that there was insufficient objective evidence by which he was able to perform an analysis of the drivers' speed at the time of collision. He therefore was forced to rely on the self-reported estimates of speed provided prior to trial by the plaintiff and defendant. He identified the dispute as being one as to which motorist was displayed a green traffic signal as they approached and/or entered the intersection. On the report by the plaintiff that he entered the intersection on a yellow light travelling at 50 kph, and of the defendant that he entered the intersection on a green light travelling at 40 kph, Mr Johnston characterised the case as being one where neither driver has entered what he termed a "stale red light", but was either a late entry (in the case of the plaintiff), or an early entry (in the case of the defendant), or a combination of both. Mr Johnston went on to provide the following opinion:
"Based on the stated approach speeds, this is unlikely to be the case in this instance as in the two second all red period. Mr Singler's vehicle would travel just under 28 metres and Mr Ferguson's vehicle would travel just over 22 metres. This is greater than the likely distance both drivers have travelled into the intersection up to the point of impact. Therefore, assuming the speeds are correct, it is not possible that both drivers are correct about their traffic signal display at the time they entered the junction. One or both drivers must be incorrect about their display."
In a report dated 10 July 2012, Mr Johnston stated as follows:
"Whilst this was only a two-phase junction and therefore could only alternate the phase times, could vary based on demand such that it is impossible to anticipate when the signals would change based on how long they had been red.
I also noted that unlike some junctions there was no obvious line of sight to a signal facing the other approach, such that an approaching driver could see that approach changing to yellow and then red. It is possible for a driver in those circumstances and understanding the approximate yellow and all red times, to obtain a 'flying start' into a junction, assuming he gets the phase order correct."
In respect of the report of Mr Johnston dated 8 July 2013, most of that report was either excised following objection, or not relied on. What did remain was paragraph number 2 on page 5 thereof (page 66 of the plaintiff's liability bundle), in which Mr Johnston described the restrictions on visibility that the defendant had in the direction of the plaintiff's vehicle as it approached the intersection along Silsoe Street. That obstruction was demonstrated in Figure 1, and was described in the following terms:
"Visibility is restricted by the fence and foliage on the south-western corner of the intersection to about 15 metres from the holding line, assuming a similar approach speed for both vehicles."
In his first report at [8.26], Mr Johnston had said in respect of the perception/response times and that sight line:
"Noting that the required perception response time was about 2.1 to 2.5 seconds and the available sight line first occurred at about 2.2 seconds it is probable that the driver could have just began to respond at about the point of impact, possibly about a tenth of a second before impact to about three tenths of a second after impact."
Mr Johnston was cross-examined and confirmed the distance from Fawcett Street to the intersection of Maitland Road and Silsoe Street was 103 metres. He described the point of impact, referred to in his reports as "the projection of the centre of the two lanes that the vehicles were understood to be in", namely, lane two in Maitland Road for the defendant and lane two in Silsoe Street for the plaintiff.
Mr Johnston confirmed that the phasing of the lights meant that six seconds after the amber light was activated in one direction, the green light in the other direction was activated. Further, the minimum green light period was 10 seconds, although that could increase substantially to cope with peak hour traffic.
Mr Johnston described the defendant as driving at 40 kph towards the red light on Maitland Road. He was challenged about that and said that it was his understanding that the defendant was doing between 30 and 35 kph at one point before the lights changed green and that he was travelling at 45 kph when he entered the intersection. He agreed he probably should have said 30-35 kph as the defendant was approaching the lights. It was conceivable that for the time the defendant was travelling on Maitland Road, the red light would have been facing red in his direction for at least 10 seconds. He gave this evidence:
"Q: There would be nothing, from what you have observed in the information that's been provided to you in this case, that you would suggest that this accident occurred because Mr Ferguson simply didn't see the red light?
A: That's correct.
Q: If Mr Ferguson has travelled through a red light, your conclusion would be that he has done it deliberately. That is, in the sense that he knew it was red when he went through it?
A: Or anticipated it and went early before it had got green. But he appears to have been, based on his statement, conscious of the presence of the lights. He sees the stationary vehicle, there's an active trigger mechanism, he proceeds through.
Q: So whether it was anticipatory or precipitous or whatever, there is nothing to suggest other than he has driven through it - he did drive through it - deliberately. That is to say, knowing that it was a red light?
A: Correct. It's not a case where, on his evidence I've seen, that he either - the more common things - the lights were shielded and he didn't see them, or he mistook a turning phase green as a through green and went through on that turning phase. There is no turning phases."
Mr Johnston was cross-examined by Senior Counsel for the defendant to establish that, assuming the plaintiff's vehicle was travelling at 50 kph, it travelled 14 metres per second. Assuming that the defendant was travelling at 60 kph as he proceeded west into the intersection, the plaintiff would have been 10.5 metres south of the impact point at the time that the defendant crossed the holding line on the western side of the intersection (point A shown on exhibit 17). Based on those assumptions, at the time when the all red phase began, the plaintiff would have been at point C on exhibit 17, a distance of 28 metres south of point B on that exhibit. Based on those assumptions, if the defendant entered the intersection with a green light travelling at 60 kph, assuming the plaintiff's speed of 50 kph, the amber light facing the plaintiff changed to red when the plaintiff was 80 metres south of the intersection.
Mr Johnston then agreed to the proposition that if the speed that the defendant was travelling was reduced below 60 kph, the position of the plaintiff on Silsoe Street as he approached and observed an amber light would be further to the south.
Mr Johnston was further cross-examined to demonstrate that, given the plaintiff's speed as a constant 50 kph or 14 metres per second, it would have taken him .65 seconds to travel the last 9 metres to the point of impact of the two vehicles. On the assumptions put to the witness, the defendant then had a distance of 34 metres to travel to the point of impact; assuming the plaintiff had to travel 11.5 metres to the point of impact, the defendant's vehicle would had to have been travelling at 147 kph to travel the 34 metres. If the plaintiff had not crossed into the intersection at all, he would have been a distance of 14.5 metres from the point of impact, and for the defendant's vehicle to have traversed 34 metres in one second; the defendant's vehicle would have to have been travelling at a speed of 122 kph.
In the event that the defendant had to travel a distance of 24 metres in the same period of time, that speed would increase to 133 kph. A list of assumptions put to Mr Johnston was tendered and became exhibit 18.
Mr Johnston was re-examined about those calculations. Having regard to the known facts about the collision and the damage which occurred to the vehicles, he did not regard those speeds as possible. The point was made that if the defendant had three times the distance to reach the point of impact as the plaintiff, he must have been travelling three times as fast as the plaintiff. Assuming the plaintiff's speed of 50 kph. that would mean the defendant was travelling at 150 kph. Mr Johnston gave evidence that this was clearly not a 150 kph crash.
Mr Johnston was then asked:
"Q: Can I ask you, what was the dynamic position between the vehicles as they approached the intersection? Roughly, how many metres a second were they travelling?
A: The plaintiff's vehicle was travelling at about 14. The defendant's speed was similar, slightly less, but it was, on the evidence that I've seen, slightly variable, so it wasn't a constant speed. There was some slight suggestion of variability of initially slowing down and then accelerating as the overtaking manoeuvre occurred into the intersection, but it's only a few metres per second less on the account anyway.
Q: What do you say they were in round terms?
A: I think it was in the order of just under 10 metres per second, the point he slowed to, and then up to - I think it's about 12 or 13 metres per second, 13 metres per second once he entered the intersection to the point of impact. So similar but slightly less.
Q: What about the plaintiff's speed?
A: I think his evidence was a constant 50, which is 13.8 or roughly 14 metres per second.
Q: So there wasn't a great difference between their speeds in the intersection?
A: No.
Q: Does that mean that the perception by the plaintiff of where he was in relation to the intersection when he first saw the other vehicle was made in a dynamic situation where both vehicles were changing their position by the order of 14 metres a second?
A: Yes."
[7]
Defendant's Submissions as to Liability
The defendant relied on a written outline of his submissions comprising 93 closely typed pages and 337 paragraphs. For a case concerning a collision between two motor vehicles at an intersection, the breadth of those submissions may on first blush seem extraordinary. However, the submissions were carefully prepared, were obviously thorough and allowed concise oral submissions to be made by Senior Counsel when speaking to them. I will attempt to briefly summarise the salient submissions relied on by the defendant as follows.
First, the defendant's submissions outline the relevant principles concerning the onus of proof on the plaintiff to prove his case on the balance of probabilities (s 140(1) of the Evidence Act 1995 (NSW)). The submissions also set out the relevant provisions of the Civil Liability Act 2002 (NSW) ("CLA"), together with relevant authorities both in respect of the onus of proof and liability for negligence, some of which are set out below.
The defendant submitted that the determinative question as to negligence is whether the court is satisfied that the defendant disobeyed a red traffic signal. Unless the plaintiff could establish that fact on the balance of probabilities, then it was submitted there must be a verdict for the defendant. It was further submitted that that determination would be sufficient to dispose of the question of liability given, first, the reasonableness of the defendant's conduct in looking ahead to where he was driving in all the circumstances, and secondly, the evidence concerning sight lines given by Mr Johnston.
The limited sight lines were relevant because by the time that the defendant was able to identify the plaintiff's vehicle moving in a northerly direction along Silsoe Street, because of the amount of time involved in perception and response time, it was too late for the defendant to stop to avoid the collision, or even materially alter his speed and thus the force of impact.
It was submitted that to establish that the defendant was negligent, the plaintiff's evidence had to be accepted, and, consequently, the evidence of the defendant and Mr Lewis as to their vehicle having a green light, had to be rejected.
The defendant made submissions, relying on the cross-examination of the expert, Mr Johnston, that if the court accepted the plaintiff's evidence that he was travelling at 50 kph as he entered the intersection, then the defendant's vehicle was travelling at truly excessive speeds for it to cover the distance from the point in time when it changed from lane one to lane two in Maitland Road until it reached the point of impact.
Further, the defendant relies on evidence given by the defendant and Mr Lewis that the plaintiff had said that he was running late for work and that he was driving his brother's car. The defendant further submitted that the opinion expressed by Mr Johnston in his first report about the need for the defendant to engage in heavy braking if he wanted to avoid a collision when the van stopped at the red traffic light in lane one, was not made out on the evidence and, in any event, was irrelevant.
Senior counsel for the defendant submitted that the defendant's version of the incident should not be rejected. It had been given consistently on two occasions and had not been successfully impugned in cross-examination on either occasion. The plaintiff's evidence that the defendant's vehicle swerved to miss the stationery vehicle and then went through a red light, was described as "implausible at best, fanciful at worst". The defendant's version was supported by that of Mr Lewis, who had no interest in the outcome of the proceedings, and no ongoing relationship with the defendant.
Another submission was that the court would not accept the plaintiff's evidence to the effect that he overheard the defendant and Mr Lewis talking at the scene of the collision and the defendant saying words to the following effect:
"When the police come we'll tell them that we had the green. There's two of us, there's only one of them. No witnesses."
The plaintiff gave evidence that he rejected the suggestion of ambulance officers that he should attend hospital because he wanted to speak to the police when they attended. When he did so, he made no mention of that alleged conversation in his statement to the police (exhibit 4). The defendant submitted that the content of the plaintiff's police statement, where he attributes to the defendant the words "Was that red?" were a fabrication by the plaintiff, exculpating him for responsibility for the collision.
The defendant argued that the issue of the plaintiff's credit must also be relevant to the court's consideration of liability. It was submitted that the plaintiff was either simply mistaken about entering the intersection on an amber light, or the probability is that he was lying. Credit played a major role in the defendant's case theory, it being submitted that the court would not accept the plaintiff as a witness of truth. This was therefore as relevant to the issue of liability as it was to damages. It was contended that the plaintiff had exhibited dishonest behaviour which took a number of forms including exaggeration, minimisation, reluctance to make concessions where they were clearly appropriate, bending the truth and "straight out lies".
In the first trial of this matter in 2008, the trial judge had focussed on three matters of credit, namely, the family law affidavit sworn by the plaintiff in Family Court proceedings, the MRI scan undergone by him and the surveillance film exposed of him in 2005, 2006 and 2008 (exhibits 24, 25 and 27). The defendant's written outline of submissions set out at [149] - [185] identified numerous issues of credit which the defendant submits should be resolved adversely to the plaintiff. They include:
The plaintiff's evidence as to why he stopped his involvement in his retail shop;
His evidence as to his use of cannabis;
The inconsistent histories given to the numerous doctors who examined him;
His dishonesty in attributing his suicide attempt to the effects of the injuries suffered in the accident, and not the tumultuous relationship that he had with his then wife; and
His omission in providing doctors with a complete medical history, including a previous suicide attempt, and his motorbike accident in November 2011.
The defendant also relies on what it refers to as the dishonesty in the plaintiff's evidence in the Family Court, his history of previous serious criminal activity, the false evidence given by him about the assault on his wife in December 2003, the untruthful presentations he had made to numerous doctors upon examination, the video surveillance evidence referred to above viewed by the court in the first trial (exhibits 24, 25 and 27), together with the more up to date surveillance video which became exhibit 10. In all of those videos the defendant submitted that the plaintiff was depicted as moving freely without any disability to his left arm, and no restriction of movement in his neck.
The defendant submits that in both the first trial and during the second trial, the plaintiff portrayed a demeanour in the witness box involving his neck and head being held in a constant position and that he was fundamentally dishonest about that and his ongoing disabilities.
It was submitted that the plaintiff had also misled 19 medical specialists who had examined him as to his disabilities arising from the injuries suffered by him.
The defendant submitted that the plaintiff's inexplicable failure to tell the doctors who examined him about his motorbike accident in November 2010, and his omission to raise this in his evidence in chief, raised serious concerns as to the plaintiff's credit. The defendant relied on the hospital notes relating to the plaintiff suffering an injury to his left shoulder so as to attribute any injury he complains of in his left upper limb to that incident. Rather, the plaintiff minimised the injuries suffered by him and their impact upon him.
The defendant also relied on the plaintiff's failure to disclose that he had an MRI scan on 29 September 2008 at the first trial and his failure to tender the results of any such scan at that trial.
Finally, the defendant made submissions in relation to Dr Phillips' hypothesis that the inconsistencies shown between the appearance of the plaintiff in the video surveillance film and his presentations to the various doctors, could be attributed to a "pantomime of communication". The defendant definitively rejected that hypothesis and submitted that the most obvious explanation for the clear inconsistency was that the plaintiff was malingering.
The defendant argued that all of those issues going to the plaintiff's credit supported the defendant's case that the plaintiff could not be believed in his evidence that he was facing a green light as he approached the intersection, and that as he proceeded through the entrance to the intersection, that light turned to amber.
[8]
Plaintiff's Submissions as to Liability
The plaintiff relied on a written outline of submissions totalling 38 pages and 111 paragraphs. That document also dealt thoroughly with all issues to be determined in the case.
The first issue addressed was the defendant's contention that, the plaintiff having tendered the transcript of evidence from the first trial, then the evidence of Mr Lewis contained in that transcript, was tendered in the plaintiff's case. On that basis the defendant submitted that no Jones v Dunkel (1959) 101 CLR 248 submission could be made against the defendant and none was made against the plaintiff. I note that the tender of the transcript was made by consent and find, as it is abundantly clear, that both the defendant's evidence and that of his witness, Mr Lewis, remained evidence in the defendant's case.
The plaintiff's case theory was outlined as follows. The defendant travelled in the kerb lane of Maitland Road, increasing speed to more than 40 kph. His utility vehicle was laden with a tonne of sand and other building materials on its tray which would have been inhibited in its ability to stop quickly. It was submitted that the court would infer that the defendant expected the lights to change to green before he reached the intersection, and when they did not do so, he was forced to accelerate in the hope of clearing the intersection safely. He did not look to his right at any point and did not see the plaintiff's vehicle until just before the impact.
This case theory involves the court accepting that the plaintiff was travelling towards the intersection on Silsoe Road with a green light facing him which changed to amber as he entered the intersection.
The plaintiff posited two alternative scenarios in his submissions. First, that the defendant went through a green light and collided with the plaintiff's vehicle. In this scenario the defendant did not at any relevant time look to his right into Silsoe Street and failed to see the plaintiff's vehicle before the collision. Secondly, both the plaintiff and defendant entered the intersection against a red light which operated at the same time before the lights changed green for the east-west traffic on Maitland Road.
The written outline then set out the evidence given by both plaintiff and defendant in the 2008 trial, and the defendant's statement to police (exhibit 4). The outline then extracted relevant passages from the plaintiff's and defendant's evidence in the trial. The plaintiff submitted that Mr Lewis, the passenger in the defendant's vehicle, was not called to:
"(a) Deny or clarify whether or not he had a conversation with the defendant overhead by the plaintiff, about colluding in their statements to the police.
(b) Confirm the defendant's evidence of a conversation with the plaintiff where he advised the plaintiff his light was not red.
(c) Mr Lewis' evidence in 2008 is silent on this issue, although it makes it plain that he was in earshot."
It was submitted that there were a number of inconsistencies between the evidence of Mr Lewis and the defendant, and therefore the plaintiff argued that a strong Jones v Dunkel inference could be drawn from the failure of the defendant to call this witness.
The plaintiff's submissions set out a number of inconsistencies contended for in the defendant's evidence relating to the status of the lights and speed of the vehicles, the position of the stationary vehicle at the western side of the intersection, the colour of the plaintiff's vehicle and his failure to inform the police of the conversation he had with the plaintiff at the time of the accident in which he gave evidence that he said to the plaintiff, "Mine wasn't red."
It was submitted that the defendant was evasive in his evidence, had avoided answering questions by failing to answer or simply stating that he could not remember. On that basis, it was submitted that the court could not rely on the evidence of the defendant.
On the question of when the plaintiff observed the defendant's vehicle to swerve, the plaintiff accepted that he could not have observed the defendant swerve as the plaintiff crossed the intersection line. He accepted also that on a number of occasions he had given evidence that he had observed the defendant's vehicle to swerve as he crossed the intersection line. It was submitted that that evidence must be considered in the context of a fluid and dynamic situation which happened very quickly. It was explained by the evidence of Mr Johnston as being affected by the perception and reaction times applicable to such a dynamic situation. In effect, the plaintiff submitted that whilst he clearly observed the defendant's vehicle swerve at some distance prior to the intersection, as a result of the lag in the time it took for him to perceive that situation and react to it, his vehicle had travelled to a point where it was entering into, or had just entered into the intersection thereby giving rise to a belief that he had observed the defendant's vehicle to swerve as he entered the intersection.
The plaintiff submitted that the evidence of Mr Johnston confirmed that the defendant and plaintiff could both see each other at a distance of some 15 metres from the intersection line. At that distance, the distance between the two vehicles was a distance of 40 metres, being the hypotenuse of the triangle formed between the position of the two vehicles, and the point of impact.
The defendant cross-examined the plaintiff, to the effect that he had become aware of the defendant swerving around the stationary vehicle after seeing the police event schedule, and then included those details in his insurance claim form. The plaintiff gave evidence that he had told the police at the scene of the accident that he observed the defendant's car to swerve. The plaintiff gave evidence that he had not seen the police event document prior to completing his insurance claim form and that evidence was not challenged. Thus, the finding sought by the defendant was not open.
In support of the plaintiff's case theory, the plaintiff relied on Mr Johnston's report (exhibit A at p 21) to support the contention that if the accident happened on a green light for the defendant, the plaintiff must have travelled for more than six seconds on yellow and red lights (four seconds yellow, two seconds red, plus some movement time for the defendant into the intersection). That contention had never been put to the plaintiff. It was submitted that if it is found that the plaintiff crossed the intersection line on a yellow light, he is entitled to a full verdict.
The plaintiff further submitted that in the alternative, the defendant travelled at between 40 and 45 kph into the intersection against a red light. He was therefore negligent and his failure to see the plaintiff when he was 40 metres away or at any time until the collision, was grossly negligent. In those circumstances the plaintiff submitted that the defendant was liable for 50% of the plaintiff's damages on the basis of the defendant's contributory negligence, "even if the accident happened as the defendant claims".
Further, if both vehicles entered the intersection on a red light, the court would find both parties negligent. In those circumstances, the plaintiff submitted that the defendant had contributed more significantly to the accident and would be held 75% liable therefore.
The plaintiff finally submitted that the court would find the plaintiff was a credible witness, whose evidence in relation to the accident had been consistent from the time he provided details to the police, in the 2008 hearing and in the trial. By comparison, the defendant's evidence contained many significant discrepancies.
In oral submissions, learned Queen's Counsel for the plaintiff made the following submissions:
1. The plaintiff had been cross-examined for a period of five days during the 2008 trial and three days during the trial. The defendant had submitted that he was a liar, cheat and a fraud who could not be believed as to how the accident occurred and who exaggerated all of his symptoms. However, that analysis did not have regard to the treatment that he had received from Dr Schwarzer since 2008 involving denervation treatment which had been effective and had given him relief of up to nine months following each procedure. That explained why the plaintiff was shown in a different light in the video exposed in May 2012. Further, the defendant did not require Dr Schwarzer for cross-examination and a Jones v Dunkel inference arose to the effect that his evidence would not have assisted the defendant's case.
2. Learned Queen's Counsel emphasised the impact of the perception/reaction time in explaining the plaintiff's evidence that he observed the defendant's vehicle to swerve as he, the plaintiff, entered the intersection.
3. It was submitted that the plaintiff had told the police officer at the scene of the accident that he saw the defendant swerve. Further, that evidence was valid.
4. In respect of the errors and inconsistencies in the defendant's evidence, it was submitted that his evidence in the 2008 trial that the plaintiff's car was grey or blue was important because it cast doubt on the accuracy of the recollection of the defendant. Similarly, his evidence changed in respect of his speed from evidence in the first trial, that he had been travelling at 40 kph when he entered the intersection, to evidence given in the second trial, that he was travelling at 45 kph. That evidence was repeated five times. It was submitted that he had changed his evidence because it was in his own interest to do so.
5. Further, it was submitted that the defendant's evidence that he did not know that the traffic lights were operated by the weight and occurrence of traffic was "an incredible piece of evidence".
6. The defendant's evidence that he did not see the plaintiff before the collision, and his explanation that he was looking ahead to where he was driving was contradicted by the evidence he gave in the 2008 trial. That evidence comprised evidence that he was aware of the stationery vehicle in lane one starting to move at a time when it was behind him, which must have meant that the defendant was looking into his rear view mirror at the time and not looking ahead into the intersection.
7. It was submitted that in the first trial the plaintiff had given evidence that he heard the defendant say to Mr Lewis "When the police come we'll say it was green. There are two of us and one of him." That evidence amounted to an allegation of collusion between the defendant and Mr Lewis to manufacture evidence. Both the defendant and Mr Lewis gave evidence after the plaintiff; however, neither were asked questions about that evidence. At the second trial, the defendant was asked about that evidence and said he could not remember. That was described as "incredible".
8. The plaintiff challenged the defendant's submission that the evidence of Mr Lewis supported the defendant's version of events. There was a conflict between the plaintiff's evidence that the defendant had said to him "Was mine red?", to which the plaintiff had replied "Yes", whereas the defendant's evidence that he had said to the plaintiff "Mine was not red" was an unlikely state of affairs in that it was not responding to a question at all and that he made no mention of it to the police.
9. Further, when asked by his counsel whether he had been told that the plaintiff had given this evidence, he said "I can't remember". Nothing was elicited by counsel for the defendant about the physical circumstances in which the alleged conversation took place. In other words, the plaintiff was not cross‑examined about it. It was submitted there was a stark inconsistency between the defendant's statement to the police and his evidence given at the two trials.
10. It was submitted that there were so many legitimate attacks on the evidence given by the defendant that he could not be accepted as a reliable witness as to how the accident occurred. The same criticism could be made of the evidence of Mr Lewis as the plaintiff made of the defendant's evidence. Thus, it was submitted that the defendant's version was simply not true.
11. In respect of the video evidence of the plaintiff relied on by the defendant, it was submitted that the difficulty with that evidence is that it took no account of the psychiatric damage suffered by the plaintiff. At face value, the film showed the plaintiff involved in activity which was inconsistent with the evidence he had given in court, which must mean that he was injured or that his claimed injury was not as serious, or his disabilities were less limiting than he said they were.
12. The explanation for that was contained in the evidence of Dr Phillips, an eminent psychiatrist whose evidence was extremely convincing. He gave evidence that the plaintiff's behaviour was to some extent psychiatrically mediated. The plaintiff was not an unintelligent man but persisted over a number of years with saying that there were things that he could not do. It was conceded that he had not told the whole truth. In respect of the motorbike accident, it was acknowledged that no evidence was given of that incident by the plaintiff in chief in the trial. It was submitted that the plaintiff must have known that the defendant would know about the motorcycle accident and notwithstanding that, he would continue to deny it. The only explanation for such behaviour was that given by Dr Phillips.
13. It was conceded that the plaintiff's evidence had to be carefully scrutinised, however, and that some of that evidence could not be accepted. In respect of the film generally, it was submitted that it was important that the film did not show the plaintiff to be uninjured and the mischief in viewing such evidence was that it was not to be accepted without careful scrutiny.
14. The evidence of Dr Schwarzer, which went unchallenged, was that he had had some compromise of the shoulder which had been relieved by two procedures, namely, nerve blocks. This gave him relief on each occasion for a period of up to nine months and on that basis the court would not come to the finding that he was a malingerer.
[9]
Defendant's Submissions in Reply
Because the plaintiff was unable to make his submissions at the end of the trial due to the illness of counsel, the defendant was given leave to reserve his submissions on quantum until after the plaintiff's submissions, and due to the subsequent delay in listing the matter for final submissions, was given leave to rely on a detailed outline of submissions in reply. The plaintiff was also given leave to file any further submissions.
On the question of collusion between the defendant and Mr Lewis, the defendant adhered to its submission that the tender of the transcript from the first trial by the plaintiff, with the consent of the defendant, meant that the evidence of Mr Lewis was evidence in the plaintiff's case. For that reason, it was submitted there was no unexplained failure by the defendant to call Mr Lewis, giving rise to a Jones v Dunkel inference that his evidence would not have assisted the defendant's case.
In reply to the plaintiff's hypothesis as to the explanation for the plaintiff perceiving the defendant's vehicle to be overtaking the van in the kerbside lane at Maitland Road, as resulting from the perception/reaction time involved, the defendant referred to the evidence of Mr Johnson in re-examination when he gave the following evidence:
"Q: In your view, given the known facts, that is the point of collision, the damage done, do you regard it as possible that the plaintiff in fact first saw the defendant passing the van, and moving to pass the van as the plaintiff was crossing the intersection line?
A: Not at that stage if the van was still in the early stage of overtaking …"
The defendant submitted that the court could not accept the plaintiff's explanation of the unreliability of the evidence of the plaintiff as being "psychiatrically mediated". This submission made on behalf of the plaintiff was fatally flawed, and not supported by the evidence. The evidence of Dr Phillips, when confronted by the stark contrast between the plaintiff's presentation to various doctors and the video surveillance film of him, that he was involved in a "pantomime of communication" could not be accepted. Even if true, it only provided one explanation for that conduct and it does not explain the reasons why the plaintiff was unable to tell the truth in court, to doctors or otherwise.
The defendant submitted that there was no evidence at all to infer that the defendant drove deliberately at the red lights for a distance of over 100 metres in anticipation that they would change before he got there, as submitted by the plaintiff. Nor was there any evidence to support the submission made by the plaintiff "that the defendant was then in a position where he could not stop before the intersection line and was forced to accelerate in the hope of clearing the intersection safely."
The defendant contended that even if the court was satisfied that the defendant breached his duty of care (which was denied), the plaintiff still needed to prove that such failure to check the cross street was causative of the accident, which in this case, given the sight lines and reaction times, it clearly was not.
The defendant submitted that the alternative theory put forward by the plaintiff that both drivers entered the intersection against a red light involved a complete rejection of the plaintiff's version of the collision. The defendant submitted that the plaintiff's version of the events was in fact a "patent concoction", particularly as the plaintiff now conceded that the evidence he gave to the effect that he observed the defendant swerve as the plaintiff crossed the intersection line, could not have happened.
With respect to the plaintiff's submission that the defendant should have put to the plaintiff that for the defendant to have travelled into the intersection on a green light, the plaintiff must have travelled for four seconds on a yellow light and at least two seconds on a red. It was submitted there was no obligation to put that proposition as the plaintiff was cross-examined on the clear basis that he crossed the halting line on a red light, thus, no Browne v Dunn (1893) 6 R 67 point arose.
The defendant relied on the following evidence of Mr Johnson:
"Noting that the required perception/response time was about 2.1 to 2.5 seconds and the available sight line first occurred at about 2.2 seconds, it is probably that the driver could have just begun to respond at about the point of impact, possibly about a tenth of a second before impact to about three‑tenths of a second after impact. There was therefore limited opportunity to take avoidance action in the calculated response time which may have been as little as a tenth of a second."
It was submitted that the limited opportunity to commence avoidance action meant that the accident was inevitable irrespective of any alleged failure on the part of the defendant to look down Silsoe Street as he approached and entered the intersection. On that basis, the plaintiff had failed to establish causation in the event that the defendant had breached his duty of care.
[10]
Legal Principles
The plaintiff bears the onus of proof of establishing that the defendant was negligent. Negligence is to be determined pursuant to the provisions of the CLA - see s 3B(2), which provides that Divisions 1-4 and 8 of Part 1A of the Act apply to motor vehicle accidents.
Many years prior to the proclamation of the CLA in 2002, the High Court held in Sibley v Kais (1967) 118 CLR 424 that the regulations relating to traffic rules were not definitive of the respective duties of drivers of vehicles to each other, nor was the breach of such regulations conclusive as to the performance of a duty owed to other road users. At p 427 the court said:
"The common law duty to act reasonably in all the circumstances is paramount. The failure to take reasonable care in given circumstances is not necessarily answered by reliance upon the expected performance by the driver of the give way vehicle of his obligations under the regulations; for there is no general rule that in all circumstances a driver can rely upon the performance by others of their duties, whether derived from statutory sources or from the common law. Whether or not in particular circumstances it is reasonable to act upon the assumption that another will act in some particular way, as for example by performing his duty under a regulation, must remain a question of fact to be judged in all the particular circumstances of the case."
In relation to the duty of drivers approaching an intersection (not controlled by traffic lights) at right angles to each other, the court went on to state:
"The obligation of each driver of two vehicles approaching an intersection is to take reasonable care. What amounts to 'reasonable care' is, of course, a question of fact but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching from his right or from his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected."
In Manley v Alexander (2005) 80 ALJR 413, the plurality in the High Court said, in relation to a driver's obligation to others using the roadway, in that case the respondent, who was intoxicated and lying on the roadway:
"11 …
Driving requires reasonable attention to all that is happening on and near the roadway but that present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path.
12 It may readily be accepted that the possibility that someone would be found lying on a roadway like Middleton Beach Road at 4am is properly to be described as remote. But the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events."
More recently, in Marien v Gardiner [2013] NSWCA 396, another pedestrian case, Meagher JA (with whom Macfarlan and Emmett JJA agreed), said:
"33 The duty of the driver of a motor vehicle to users of the roadway, including pedestrians, is to take reasonable care for their safety having regard to all the circumstances of the case: per McHugh J in Vairy at [26]. Under the common law and the Civil Liability Act, the standard by which reasonable care is measured is an objective and impersonal one: Cook v Cook [1986] HCA 73; 162 CLR 376; s 5B.
34 The question whether there has been a breach of that duty is to be addressed prospectively and by reference to what a reasonable driver in the appellant's circumstances would have done, if anything, by way of response to any foreseeable risks of injury or sources of danger to other road users: Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47-48; Vairy at [60], [105], [124] and [126]; New South Wales v Fahy [2007] HCA 20; 232 CLR 486 at [57]. A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in those circumstances: s 5B(1).
35 Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident: Derrick v Cheung [2001] HCA 48; 181 ALR 301 at [13]. The exercise of reasonable care requires, as the majority observed in Manley v Alexander at [11], 'reasonable attention to all that is happening on and near the roadway that may present a source of danger'. That in turn requires 'simultaneous attention to, and consideration of, a number of different features of what is already or may later come to be, ahead of the vehicle's path'.
36 The driver is not required, however, to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events. As Hodgson JA (Ipp JA and Gyles AJA agreeing) said in Hawthorne v Hillcoat [2008] NSWCA 340 at [47], the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle.
37 Nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the 'limits of visibility and control' so as to be able to react to whatever ventures into the vehicle's path: per Ipp JA (Heydon and Santow JJA agreeing) in Cole at [61], citing Grove v Elphick (1985) 2 MVR 74 and Morris v Luton Corporation [1946] 1KB 114. Derrick v Cheung was such a case. An unattended infant child emerged from between two parked cars and darted into the path of the vehicle. The driver was not negligent despite the fact that he was travelling at a speed which did not enable him, upon seeing the child, to avoid the collision."
See also Warth v Lafsky [2014] NSWCA 94 at [55] and The Nominal Defendant v Ross (No. 2) [2014] NSWCA 370 at [26] where these principles were restated.
In State of NSW v Fuller-Lyons [2014] NSWCA 424, Macfarlan JA (with whom McColl JA and Sackville AJA agreed) said at [31]:
"In an action for negligence, the plaintiff fails unless the evidence supports a positive inference implying negligence. This inference must arise "as an affirmative conclusion from the circumstances proved in evidence (Jones v Dunkel (1959) 101 CLR 298 at 304). The facts proved 'must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture" (ibid at 304-5 citing Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5). The Court is not authorised 'to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied' (Jones v Dunkel at 305; see Luxton v Vines [1952] HCA 19; 85 CLR 352 at 359-360 and recently Minogue v Rudd [2013] NSWCA 345 at [66]; Curtis v Harden Shire Council [2014] NSWCA 314 at [18]; McLennan v Nominal Defendant [2014] NSWCA 332 at [86] and Coote v S & P Jackson Pty Ltd [2014] NSWCA 385 at [22]."
See also Shoalhaven City Council v Pender [2013] NSWCA 210 per McColl JA at [47].
The defendant relied on the Court of Appeal decision in Dungan v Chan [2013] NSWCA 182, another pedestrian case, where Emmett JA (with whom Ward and Gleeson JJA agreed) said at [15]:
"15 A driver is entitled to assume that others will observe the rules of the road. However, that does not mean that a driver may proceed at any pace he or she chooses or with complete indifference as to the possibility of a pedestrian emerging from somewhere as a result of accident, miscalculation, ignorance or recklessness. As a general rule, a person is entitled to assume that others will act in a non-negligent manner. However, where negligence is the issue, the real question is whether, in all the circumstances, the person charged with negligence exercised the degree of care that those circumstances required. The standard of care expected of the reasonable person requires him or her to take account of the possibility of inadvertent and negligent conduct on the part of others (Wheare v Clark (1937) 56 CLR 715 at 723)."
As to causation pursuant to s 5D of the CLA, generally in motor vehicle accident cases where negligence is established pursuant to ss 5B and 5C, there is little issue that factual causation follows pursuant to s 5D(1)(a), and once that is established, there is usually no issue that it is not appropriate for the scope of the appellant's liability to extend to the harm caused to the injured party pursuant to s 5D(1)(b) - see for example Nominal Defendant v Bacon [2014] NSWCA 275 at [15] and [16]. It is also clear that the plaintiff bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation pursuant to s 5E of the CLA. I have set out to apply the above principles in determining the issues in this case.
[11]
Issues to be Determined
The following issues are to be determined in respect of liability:
1. Has the plaintiff established to the requisite standard that the defendant was negligent by,
1. Proceeding into the intersection against a red light?
2. If not, by proceeding into the intersection?
1. If yes to either (i) and (ii) above, did the plaintiff contribute to his own injuries by his own contributory negligence?
[12]
Determination - Factual Matters
The intersection of Maitland Road and Silsoe Street is clearly depicted in exhibit O. Maitland Road is a major thoroughfare and comprises two lanes for traffic travelling in each direction, as well as available space on the kerbside lane on both its southern and northern sides, for vehicles to park.
Silsoe Street is a narrower street which meets Maitland Road at right angles. At the intersection, for traffic travelling in a generally northern direction, there are two lanes. As demonstrated on exhibit O, the distance from the holding line for traffic travelling in Silsoe Street through the intersection to the point of impact was 14.5 metres. For traffic travelling east along Maitland Road, the distance from the holding line to the point of impact was 12.5 metres.
Further, for vehicles travelling to the east along Maitland Road, there is limited line of sight as they approach the intersection to the south along Silsoe Street. This applies equally for traffic travelling north on Silsoe Street, namely, there is a limited line of sight for drivers to observe vehicles travelling from the west to the east along Maitland Road. This limited sight line is caused by a building adjacent to the south-western corner of the intersection, a fence along the boundary of that property and vegetation situated adjacent to the corner. As outlined above, Mr Johnson estimated the distance between vehicles at a point when they would have been able to see each other was approximately 40 metres.
The intersection is controlled by traffic lights which operated in a dynamic or adaptive manner, responding directly to actual demand of traffic on each approach to the intersection. I accept the evidence of Mr Johnston that for that reason there was no objective means of determining which phase was operating at the time of the collision. I also accept that the phasing for the lights was as follows, namely, at the end of the green phase, the lights displayed a yellow traffic light for four seconds and then changed to a red light. At that time, the lights for traffic travelling at right angles through the intersection remained red for an additional two seconds. That meant that for two seconds lights for both approaches to the intersection showed red phases. For a vehicle travelling towards the intersection on either approach with a green light, once that light changed to yellow, there were six seconds before the opposite approach showed a green light.
[13]
Determination - Has the Plaintiff Established on the Balance of Probabilities that the Defendant was Negligent by Proceeding into the Intersection Against a Red Light?
The plaintiff's case was that as he entered the intersection the light facing him on Silsoe Street turned from green to yellow. It necessarily follows, if that evidence is accepted, and accepting that he was travelling at 50 kph, there was a period of six seconds before the traffic lights on Maitland Road would turn green for traffic travelling in an easterly direction. In that time, the plaintiff would have passed safely through the intersection and into Carrington Street. The inference the plaintiff relies on therefore is that the light facing the defendant as he approached the intersection was red and that he proceeded into the intersection against a red light at a time when the lights facing traffic in Silsoe Street were yellow.
The defendant gave evidence that the light facing him on Maitland Road changed from red to green as he approached the intersection. He was approaching a vehicle that was stationary at the traffic lights in the kerbside lane and changed lanes into the next lane at about the time when the lights changed. He then proceeded through the intersection on a green light, travelling at a speed of 40 kph (first trial), or between 40 and 45 kph (second trial). His evidence as to the green light was supported by the evidence of his passenger, Mr Lewis, given in the first trial.
The evidence of the plaintiff and the defendant is impossible to reconcile. The plaintiff's case theory, as articulated by his learned Queen's Counsel, meant that the defendant, who had turned onto Maitland Road from Fawcett Street, a distance of 103 metres from the intersection, proceeded towards that intersection for the whole of that time, facing a red light, changed lanes to avoid the vehicle in the kerbside lane and then deliberately proceeded through the red light, anticipating that it might change. He did so because of the load of sand on the tray of his vehicle weighing one tonne which made it difficult to stop the vehicle. That case theory was denied by the defendant.
Leaving aside the evidence given by both parties as to the post-accident conversations and questions of credit that arose, to establish the defendant was negligent the plaintiff has to adduce evidence supporting a positive inference implying negligence on the part of the defendant, an inference which could be said to arise as an affirmative conclusion from the evidence and which was established to the reasonable satisfaction of the judicial mind (as per McColl JA in Shoalhaven City Council v Pender, supra, at [47]). Her Honour went on to say:
"The evidence had to arise above the level of conjecture, could not be based on possibilities but had to be established as a matter of probability, and had to do more than give rise to conflicting inferences of equal degrees of probability (referring inter alia to Luxton v Vines (1952) 85 CLR 352 and Jones v Dunkel, supra)."
In Curtis v Harden Shire Council [2014] NSWCA 314, Beazley JA said at [174]:
"174 The Evidence Act 1995, s 140, which now specifies the standard of proof that applies in civil cases, restates the common law position that the civil standard of proof is on the balance of probabilities: s 140 (1). S 140 (2) provides that the matters that the court may (non-exclusively) take into account in deciding whether it is satisfied on the balance of probabilities include: the nature of the cause of action or defence (para (a)); the nature of the subject matter of the proceeding (para (b)); and the gravity of the matters alleged (para (c)). It has been accepted that para (c) reflects the common law principles stated in Briginshaw; see Pedler v Richardson (unreported, Supreme Court, Young J, 16 October 1997); Wily v Fitz-Gibbon (unreported, Federal Court , Hill J, 2 March 1998); Amalgamated Television Services v Marsden [2002] NSWCA 419 at [60]. In Qantas Airways Limited v Gama [2008] FCAFC 69 at [139], Branson J adopted the language of the High Court in Neat Holdings v Karajan Holdings, in finding that under s 140:
" … the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what it is sought to prove."
In the same case, Basten JA, in the context of the issue of causation that arose therein, referred at [332] to the judgment of McDougall J in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [44] - [45] where His Honour, (McColl and Bell JJA agreeing) noted that 'an actual persuasion' was required to satisfy the burden of proof, meaning that the court must be satisfied that 'the probabilities of the facts existence are greater than the possibilities of its non-existence': at [55].
The plaintiff's case theory that the defendant deliberately breached the road rules is, in the absence of objective evidence, a serious allegation, (particularly when coupled with the plaintiff's evidence as to the conversation overheard between the defendant and Mr Lewis, amounting to collusion between them to mislead the police). In Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 110 ALR 449 the plurality in the High Court said:
"The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make finding that, on the balance of probabilities, a party to a civil litigation has been guilty of such conduct."
Subject to the qualification expressed above (concerning admissions against interest and credit), I am not satisfied on the balance of probabilities that the plaintiff has established that the defendant drove his vehicle into the intersection deliberately against a red light. The defendant had driven a short distance of only 103 metres on Maitland Road, at a relatively low speed and the light facing him was red for the whole of that time until it changed to green. It was therefore not a case of "running the red light" after having a green and yellow light. Other than speculating about the effect of having a heavy load on his tray, the plaintiff has shown no reason why the defendant would proceed around a vehicle stopped in the first lane and deliberately into the intersection at a relatively low speed against a red light. Rather, the defendant's evidence that he changed lanes when the light changed to green, and accelerated to proceed into the intersection was plausible and had the ring of truth about it, and was supported by the evidence of Mr Lewis. That evidence was admitted by consent and remained evidence in the defendant's case. In the circumstances I am not prepared to draw an inference that, in the unexplained absence of Mr Lewis as a witness in the trial, his evidence would not have assisted the defendant's case pursuant to Jones v Dunkel, supra.
I am therefore not satisfied that the plaintiff has established on the balance of probabilities that the defendant was negligent by proceeding into the intersection against a red light on the basis of the objective evidence in the case.
[14]
Determination - Whether the Post-Accident Conversations Constitute an Admission Against Interest from which Negligence can be Inferred
The relevant conversations are outlined in [10] above. At the first trial, the plaintiff gave evidence in chief that he spoke to the defendant, following the collision, as follows:
"A: He just said, you know - I said to him, 'Was that a good - that's a good start to the morning', and he asked if it was red and I said 'Yeah, mate. You went through a red light'.
Q: And what did he say to that?
A: He went, 'Oh' and walked off. Yeah."
The plaintiff then gave evidence that while standing on the footpath he said he heard the defendant say to his passenger, Mr Lewis:
"A: That, 'when the police come we'll tell them we had the green. There's two of us. There's only one of them. No witnesses.'"
In cross-examination it was put to the plaintiff that the conversations outlined did not take place, which he denied.
In the first trial the defendant gave evidence of a conversation he had with the plaintiff (see [18] above). During that conversation the defendant gave evidence that he said to the plaintiff "Mine was not red", to which the plaintiff did not reply.
In the second trial the plaintiff again gave evidence that the defendant asked him "Did I go through a red light?", then he told the defendant, "Yes you did" (see [31] above). He also gave evidence that he overheard the defendant saying to the passenger the words outlined above (see [32] above).
In the second trial the defendant again gave evidence that he said to the plaintiff "Mine wasn't red". In cross-examination he was asked what he was replying to and answered "I don't know."
It is clear that both the plaintiff and the defendant were asserting that the lights facing the other driver were red. Such assertions, whether they are exculpatory or otherwise, do not amount to admissions against interest. The evidence that could amount to an admission against interest is the plaintiff's evidence that he overheard the defendant say to his passenger "When the police come we'll tell them that we had the green. There's two of us. There's only one of them. No witnesses."
I do not accept that this constituted an admission against the defendant's interests in the circumstances of this case for the following reasons. First, the plaintiff gave evidence that this was his reason for refusing to be taken away from the scene of the accident in an ambulance was that he wanted to tell the police what had happened. He made no mention of those words being spoken by the defendant in his police statement and the defendant denied saying them. Secondly, as held by Young AJ in the Court of Appeal (see Singler v Ferguson [2009] NSWDC 88 at [73]).
"The literal meaning of the alleged admission could give the impression that all the respondent was saying was that it was important to tell the police that the lights were green because they were green."
His Honour went on to hold that the alleged admission could be read either way, meaning either against interest or not and that it did not come within the category of incontrovertible evidence. Further, as stated by Young JA at [75], "there was much to speculate on" in respect of that evidence.
Also relevant to this question, are the issues of credit that arose during the hearing.
[15]
Determination - Whether the Issues of Credit Assist in Determining the Issue of Negligence
The issue of credit loomed large in these proceedings. It is a matter of record that the first trial judge made the following findings in respect of the plaintiff's credit (see Singler v Ferguson, supra at [34] and following):
1. There were inconsistencies between the plaintiff's presentation to the court and to medical practitioners and the activities that he was capable of undertaking as demonstrated in the surveillance materials.
2. There were inconsistencies between the plaintiff's evidence to the court and that contained in an affidavit sworn under oath for the purposes of Family Court proceedings.
3. The trial judge was not satisfied that the plaintiff was unaware of the result of an MRI scan on 29 September 2008 and that he attempted to conceal that result because it did not support his claims of spinal injuries.
4. The plaintiff was not a witness whose evidence could be relied upon unless independently and objectively supported.
On appeal, the central issue for determination became whether the trial judge's credit findings adverse to the plaintiff would stand. The Court of Appeal held that the trial judge was incorrect in her adverse finding relating to the MRI scan and the plaintiff had been denied procedural fairness on that issue. On that basis the plaintiff was entitled to a new trial (per Beazley JA and Hanley AJA, Young JA dissenting on the question of a new trial).
The issue of non-disclosure of the MRI, which loomed large in the first trial, was a non‑issue in the second trial. The defendant submitted that the plaintiff's evidence on this issue was an embellishment. However, the MRI was in evidence (exhibit K) and was relevant to the question of damages. I find that the MRI was not raised in the plaintiff's evidence in chief in the first trial as a result of a forensic decision made by his Senior Counsel. It's non-disclosure in the first trial is therefore not a matter that gives rise to any adverse finding as to the plaintiff's credit. However, the other issues relating to the plaintiff's credit that arose in the first trial remained in issue, together with a number of further matters. Generally speaking, they were as follows:
1. The plaintiff's failure to disclose in his evidence in chief that he had been involved in a motorcycle accident on 22 November 2010.
2. Further video surveillance taken of the plaintiff, following the first trial, which was again inconsistent with his evidence as to his physical capacity.
3. The plaintiff's evidence of his ongoing consumption of cannabis.
4. The plaintiff's demeanour in the witness box.
In answer to this attack on his credit, and in answer to the question of inconsistencies between his evidence and his presentation to various doctors and the video surveillance, the plaintiff relied on the opinion of Dr Phillips, psychiatrist, that, rather than malingering, the plaintiff was involved in a "pantomime of communication". The plaintiff also submitted that, following his treatment by Dr Schwarzer from August 2008, during which the plaintiff underwent a number of nerve blocks to his cervical spine which gave him relief from his severe pain and marked improvement in his headaches, the manner in which the plaintiff presented in the surveillance film taken after the first trial was consistent with his pain-free state. It was submitted therefore that the defendant's submissions as to credit could not be accepted.
Having viewed the video surveillance evidence that was before the trial judge during the first trial (exhibits 24, 25 and 27), I have come to my own conclusions in respect of that evidence that mirror the conclusions set out by Sidis DCJ in her judgment at [9] - [11]. In the material recorded on 30 April 2005, the plaintiff was viewed to undertake a number of physical activities without apparent discomfort. His left arm and neck were seen to move freely and he used his left arm in a number of activities which included smoking a cigarette, drinking from a can, carrying items and opening a car door.
The video material exposed on 29 July 2006 also demonstrated unrestricted use of the plaintiff's left arm and hand. He was also shown to be able to move his head to the left and right sides without restriction.
The material recorded on 14 April 2008 also demonstrated that the plaintiff was able to move his left arm freely and use his left and right arms to perform various activities.
In all three video surveillance films the plaintiff demonstrated physical activities which included crouching, kneeling, taking photographs and lifting items of furniture. He interacted normally with other persons. This was entirely inconsistent with his presentation to the numerous doctors who examined him and to the court during the first trial.
Exhibit 10 comprised the DVD surveillance of the plaintiff carried out on 17 April, 30 April and 14 May 2012. Similarly, it showed the plaintiff using his left arm and hand freely and using his left hand to carry out physical activities which were inconsistent with his presentation in the witness box and his evidence as to the extent of his disability; for example, he was shown holding the hood of a motor vehicle up with his left hand above his head height while at the same time working with his right hand within the engine bay. Even after having been confronted with that evidence, the plaintiff denied that he was making up his complaints of restriction of movement of the left shoulder and neck and denied that he was quite capable of moving his left arm freely and moving his neck from side to side.
Whilst the plaintiff did not present in the witness box in the same way that he had during the first trial, clutching his left elbow to his side with his right hand, his presentation was still of a man who was severely restricted in the way he could move his left upper limb, his neck, and to have diminished enjoyment of all of life's activities.
It is also a fair summary to state that the manner in which the plaintiff was depicted in exhibits 10, 24, 25 and 27 by way of the video surveillance material was also inconsistent with his presentation to numerous doctors who examined him, both for treating purposes and for medico-legal purposes. On that basis alone, the plaintiff's evidence would have to be treated with careful scrutiny, and only accepted when supported by objective and independent evidence.
Also impugning the plaintiff's credit was his failure to disclose in his evidence in chief that he had been involved in a motorcycle accident on 22 November 2010, requiring him to be treated at hospital for injuries to his left side. The circumstances of that accident were disclosed only in cross-examination when the plaintiff admitted that he had laid the bike he was riding down on the left side causing it to slide into a motor vehicle. He suffered injuries to his left side which he at first described to his hip and ankle. He reluctantly conceded that he had also suffered an injury to his left shoulder for which he had been treated at hospital. Thereafter, he had failed to disclose this episode to his treating doctor, Dr Kinsella, notwithstanding that he had an x-ray and an ultrasound carried out on the left shoulder following this motorcycle accident. Given the nature of the proceedings and the attack that had been made on the plaintiff's credit in the first trial, particularly having regard to the attack made on him for failing to disclose the findings of the MRI study taken in September 2008, the only conclusion that could be drawn from the plaintiff's failure to give evidence about the motorcycle accident in 2012 and the injuries that he suffered in that incident is that he was deliberately misleading the court by failing to give that evidence. That finding supports the conclusion drawn above that the plaintiff's evidence should be treated with some caution, and only accepted where it is supported by objective evidence.
Two other matters concerning the plaintiff's credit were the adverse findings made by the first trial judge in respect of the affidavit sworn by him in Family Court proceedings and his long addiction to cannabis. I make the same findings in respect of the Family Court affidavit (referred to below) which contained assertions as to the plaintiff's psychological well-being which were clearly inconsistent with medical evidence of his clinical picture at the time. Those assertions were no doubt motivated by his desire to obtain custody of his children, and therefore demonstrate a capacity to mislead the court to obtain the plaintiff's desired result. The evidence of his long-standing use of marijuana prior to the accident reflects adversely on his attitude to law enforcement, however, I make no adverse credit finding on that basis. For the purpose of determining whether the plaintiff has established a case in negligence against the defendant, these findings do not assist the plaintiff's case.
On the other hand, the attack made by the plaintiff's counsel on the defendant's credit was not as significant, both in the quality of the attack and its consequences.
For example, the fact that the defendant gave evidence at the first trial that the plaintiff's vehicle was blue or grey, whereas in fact it was white, is of little moment. It does not reflect on the reliability of the defendant's evidence generally, but in my view, was an example of the unreliability of eye‑witness testimony to traumatic events, which has been well documented elsewhere. The defendant was giving evidence of events that took place five years earlier and nothing turned on the colour of the plaintiff's car. Similarly, the perceived difference in the defendant's evidence at first trial as to his speed (40 kph) when entering the intersection, and the evidence given at the second trial (40‑45 kph) is of little significance. In fact the Court of Appeal dealt with the matter on the basis that he was travelling 45 kph as he went through the intersection (see Beazley JA at [8]). According to the evidence of Mr Johnston, the difference in speed made little difference to the calculations as to distances travelled by the respective parties. Further, there is no onus of proof on the defendant in terms of whether the plaintiff has adduced sufficient evidence to establish a case of negligence.
[16]
Determination - Has the Plaintiff Established to the Requisite Standard, that the Defendant was Negligent by Proceeding into the Intersection?
The evidence does not establish that the defendant proceeded into the intersection through a red light. I therefore do not accept the plaintiff's alternative case theory that both vehicles entered into the intersection with a red light facing them. It is entirely contrary to the plaintiff's evidence and not supported by any other evidence. The question then becomes, whether the defendant breached his duty of care to the plaintiff by proceeding into the intersection with a green light. That proposition necessarily implies that the plaintiff proceeded through a red light and thus the green light facing him as he proceeded north along Silsoe Street changed some six seconds before he entered the intersection. Travelling at 50 kph, meant that he had proceeded for a distance in the order of 90 metres before he passed into the intersection.
As set out above, the line of sight for a driver in the defendant's position heading east along Maitland Road was restricted in a southerly direction down Silsoe Street. At a point where the defendant had the first opportunity to observe the plaintiff, he was a distance of some 15 metres away from the intersection, as was the plaintiff. Both vehicles would have covered the distance from their respective positions at that point in time, to the point of impact in approximately two seconds.
Even if the defendant had been looking directly down Silsoe Street, that would have barely given him time to perceive a situation of danger and react to it, notwithstanding that he had a green light. Given the perception/reaction time in the order of 1.5 seconds to 2.0 seconds, there was insufficient time and opportunity for the defendant to take any evasive action that would have avoided a collision at that point in time. Nor did the plaintiff react in any way to the defendant's vehicle.
In accordance with the authorities set out above, the defendant had a duty to take reasonable care to avoid a risk of injury to other road users who were taking care for their safety. Applying s 5B and s 5C of the CLA, the test is what precautions would a reasonable driver in the defendant's position have taken in response to the risk of harm on approaching an intersection controlled by a traffic light with a green light facing him. In my view, in the circumstances of this case, where Maitland Road was a major arterial road and Silsoe Street a minor road intersecting with it, it was reasonable for the defendant to proceed through the intersection. Whilst there is always a possibility that other drivers will "run a red light", there was no reason for the defendant to assume that would happen here. For that reason I find that there was no breach of the defendant's duty of care in the circumstances.
If I am wrong in that finding, then the question of causation pursuant to s 5D of the CLA arises. That involves the "but for" test as explained by the High Court in Strong v Woolworths Limited (2012) 246 CLR 182 and Adeel's Palace Pty Ltd v Moubarak (2009) 239 CLR 420. On the issue of factual causation, given the limited line of sight and the absence of an opportunity to react to the defendant's vehicle, it could not be said that the collision occurred but for the breach of duty of care of the defendant, who had no opportunity to react or take any precautions against the risk that was presented to him. Further, the second limb of causation pursuant to s 5D, namely, scope of liability, would not warrant such a holding in those circumstances.
For those reasons, I find that the plaintiff failed to make out causation against the defendant in this scenario in any event.
I therefore find that the plaintiff has failed to establish a case in negligence against the defendant. He has failed to establish that the defendant breached his duty of care to the plaintiff in the circumstances that arose, and has failed to establish in any event, that any breach of care by the defendant was causative of the plaintiff's injuries. For those reasons there must be a verdict for the defendant.
Given those findings and conclusions, the question of whether the plaintiff was guilty of contributory negligence does not arise. However, if I am incorrect in any of those findings, and the defendant was negligent, applying ss 5R and 5S of the CLA, the plaintiff contributed to his own injuries by his own negligence to the extent of 100%, so that any damages would be reduced to nil.
[17]
Damages
If I am wrong in the above findings, I proceed to assess damages for the personal injuries suffered by the plaintiff in the motor vehicle accident. That too is a vexed question, given the adverse findings of credit that I have outlined above that must be made against the plaintiff. Those findings must impact upon any assessment of damages in the manner that I describe below.
The plaintiff's submissions on damages comprised 57 pages plus a schedule of damages as set out below, together with schedules calculating the individual heads of damages referred to. In addition, the plaintiff made lengthy submissions in reply to the defendant's submissions on damages. The schedule of damages relied on by the plaintiff was as follows:
Non-economic loss Nil
Past economic loss $393,758.31
Past loss of superannuation contributions $ 35,438.24
Future economic loss $ 396,934.00
Future superannuation loss (14.21%) $ 57,555.43
Past out-of-pocket expenses $ 186,934.84
Future out-of-pocket expenses - $382.50 x 950.4 $ 363,528.00
Domestic assistance
Past domestic assistance
• 07.04.03 to 30.06.07
• 14 hrs x $20 x 220 wks = $61,600 $ 323,659.00
Future domestic assistance
• 06.05.14 - continuing
• 7 hrs x $30 x 950.4 = $199,584.00
Fox v Wood $ 23,615.00
Total $1,781,419.00
[18]
The plaintiff was aged 30 years at the date of the accident. He left school in year 12 and worked for six years in a number of unskilled positions including as a sales representative for two years and as a storeman for two years. In 1996 his wife received a workers compensation payout and they purchased a general store which closed after approximately 18 months. He returned to unskilled work as a farm hand, console operator and storeman until August 2001 when he commenced employment with Regal Motors Newcastle as a warranty officer. He was working for that firm at the time of the accident earning approximately $570 net per week.
The plaintiff had separated from his wife in June 2002. He had started smoking marijuana whilst at school in 1990 and notwithstanding that he was charged at that time with possession and sentenced to community service, he became a habitual user. In December 1997 he was again charged with possession and again sentenced to a period of community service.
Following their separation, his ongoing relationship with his wife was problematic and she took out an Apprehended Violence Order against him in late 2003. (He was subsequently charged with contravening that order by common assault after she had come to his home to collect her things.)
Following the accident the plaintiff had attempted a return to work at Regal Motors, however, he left there after a supervisor made disparaging remarks about him. In June 2013 on an occasion when his wife arrived to collect some more of her belongings, he attempted suicide by hanging. Approximately one year later there was another attempt when police intervened, following which, he was taken to the James Fletcher Mental Health unit.
In 2005 the plaintiff made an application in the Family Court of Australia for the custody of his children. It was in those proceedings that he swore an affidavit on 6 June 2005 in which he deposed:
"I am today in a fit and well state of mind, have not had any further suicidal thoughts since the unfortunate circumstances which occurred."
The plaintiff gave evidence that that statement was truthful when he swore the affidavit.
Notwithstanding that affidavit, the plaintiff gave evidence that he was engaged in a daily battle concerning further suicidal ideation up until the trial. The outcome of the family law proceedings was that the plaintiff and his ex-wife were granted shared custody.
In more recent years, since approximately 2010, he had been in a relationship and his partner had four of her own children.
On the day of the accident the plaintiff consulted his local medical officer, Dr Kinsella, complaining of lower to mid back pain with a spinal muscle spasm and reduced movement on examination. Two days later he complained of left shoulder/upper chest and cervical spine pain. He was commenced on analgesics, anti-inflammatories and referred for physiotherapy; however, in May 2003 he was referred to a specialist, Dr Pacey. His ongoing complaints were recorded by Dr Kinsella in 2011 as being left shoulder and cervical spine pain, depression, headaches and lower back pain.
Following her examination of the plaintiff on 28 May 2003, Dr Pacey, a rehabilitation and pain medicine specialist, described the plaintiff as having:
"… a very protected posture. He is carrying his left arm across his body and avoiding using it. He is noted to have poor muscle tone and does not look very fit. He states that he has lost 13 kilograms since the accident …"
Following her examination of him on 12 August 2003, Dr Pacey assessed him as being unfit for work and described his continuing symptoms as follows:
"(i) Mr Singler describes pain along the left lumbar area and across the lumbar-sacral level. He was experiencing twitching in the muscles, but this has now settled. He has not been troubled by leg pain.
(ii) He experiences pain along the neck and out to the trapezius area. He will experience an occipital headache, which is constantly there. He uses a heat pack and Tens to try and get relief. He will use panadeine forte and marijuana. Coughing and sneezing will aggravate his neck pain.
(iii) As a consequence of his attempted hanging, Mr Singler is now experiencing right-sided neck pain radiating out to the trapezius ridge. He feels numbness along the neck and over the head. He is experiencing shooting pains out to the shoulder, which will radiate down to the axilla on the right-hand side both anteriorly and posteriorly. He describes these pains as excruciating.
(iv) He remains depressed, not sleeping and he states that he is being force-fed."
The plaintiff was assessed by Dr Ghabrial on 22 October 2003 who diagnosed a severe soft tissue injury at C2/3 and C3/4 level. Dr Ghabrial could not exclude the possibility the disc prolapse in his cervical spine, nor the possibility of a lower lumbar disc prolapse. He opined that the plaintiff was totally unfit for work.
In July 2005 the plaintiff presented at John Hunter Hospital emergency department complaining of nausea and vomiting, together with head, neck and back pain following a car accident two years ago. In December 2005 he was re-assessed by Dr Pacey who took a history of pain in the left lumbar area and across the lumbo-sacral level, together with pain in the neck and the trapezius area, with constant headaches. She assessed him as being suitable for light duties with a number of restrictions, namely, no heavy lifting or using his arms above shoulder height.
Dr Kinsella in a report dated 21 March 2006 also recommended that he return to work on reduced hours but with similar restrictions.
On 17 June 2007 the plaintiff presented at Manning Base Hospital complaining of pain in the neck radiating through his head and down to his left scapular region.
By this time, the plaintiff had been referred to a rehabilitation provider, AW Workwise and also examined by doctors on behalf of the workers compensation insurer, Employer's Mutual Indemnity, including Dr Graham, Dr Lee, Dr Price, Dr Samuell, Dr Vickery, Dr Kafataris, Professor Ehrlich, Dr Stephen and Associate Professor Oakeshotte. I note the Workers Compensation Commission made findings on 15 September 2004 that the applicant suffered injury arising out of and in the course of his employment and that he was totally incapacitated.
The plaintiff was also assessed by the MAS from May 2005 when he was examined by Dr Mackie who assessed his whole person impairment in respect of his cervical spine at 5%. The history of his assessment by MAS, review and the eventual issuing of a certificate by the review panel on 17 May 2013 is recorded in my judgment dated 19 August 2014. That certificate meant that the plaintiff was not entitled to damages for non-economic loss. My reasons highlighted the dispute as to causation. Dr Bentovoglio on behalf of the plaintiff, who, in a report dated 14 November 2011, opined:
"The MRI scan taken of his lumbar spine region showed evidence of discal damage with posterior annular bulge at the L5/S1 level. As the investigation was performed more than five years after Mr Singler had his injury to his person in a motor vehicle accident, I would consider the discal damage to the L5/S1 level of his lumber spine region probably has been caused by the motor vehicle accident."
Associate Professor Oakeshott, on behalf of the defendant, in a report dated 26 July 2012, described Dr Bentovoglio's opinion:
"I cannot agree with his statement that 'As the investigation was performed more than five years after Mr Singler had his injury to his person in a motor vehicle accident, I would consider the discal damage to the L5/S1 level of his lumbar spine region probably has been caused by the motor vehicle accident'. It is my opinion that that statement does not support evidence for 'discal damage' that could be attributed to the accident on 7 April 2003."
On 12 April 2007 Dr Jonathan Phillips, psychiatrist, opined that up until that time the plaintiff's psychological sequelae to his injury had been misdiagnosed, and that the plaintiff had suffered a major depressive disorder following the motor vehicle accident, notwithstanding that he had suffered an earlier episode of depressive symptoms linked with the breakup of his marriage. In addition, the plaintiff had suffered a pain disorder associated with his psychological disorder. According to Dr Phillips, "pain disorder" referred to a situation where a person experiences pain as a dominant symptom, but where pain cannot be explained adequately or fully on the basis of underlying known physical pathology.
On 28 November 2007 the plaintiff attended Lorna House in an attempt to reduce his reliance on marijuana. He did not undergo rehabilitation as he was not prepared to go "cold turkey", and wished to gradually reduce his consumption.
On 18 August 2008, at a time when the first trial was part heard, the plaintiff was examined by Dr Schwarzer for the first time. Dr Schwarzer was of the opinion that the plaintiff had suffered a high impact motor vehicle accident with whiplash and recommended he undergo an MRI scan of his neck and lumber spine. That study was performed on 20 September 2008, prior to the resumption of the first trial on 3 November 2008. It was that study that led to the adverse credit finding made by the first trial judge, which I have referred to above.
The MRI scan revealed no evidence of focal disc lesion or neural compression of the cervical spine. It did reveal a disc bulge of the L5/S1 segment without any neural compromise. There was no lumbar sacral disc degeneration.
Reporting on the MRI scan, Dr Ghabrial opined:
"Initially the x-rays of 5 May 2003 showed slight loss of the disc height at the L5/S1 segment. My provisional diagnosis was lumbo-sacral disc injury. The fact that the disc has developed degenerative changes means that the disc bulge sustained internal disruption with the subsequent development of degenerative changes.
Regarding the cervical spine, there was no evidence of any disc protrusions. The most likely diagnosis is severe soft tissue injury leading to some instability at C2/3 and C3/4 segments as indicated by the original x-rays of 9 May 2003 which showed anterior displacement of the C/2/3 and C/4 segments in the flexion and extension dynamic views."
In a subsequent report dated 8 December 2008 Dr Ghabrial confirmed his opinion of injuries to the lumbar spine, left shoulder and back. In respect of the left shoulder he diagnosed adhesive capsulitis.
On 10 December 2008 Dr Schwarzer performed a C2/3 zygapophysial joint block from which the plaintiff experienced complete relief on his left upper neck pain and headache for at least eight hours. The pain then returned and the block also failed to provide any relief from his lower neck pain. The nerve block was repeated on 16 December and again the plaintiff experienced complete relief from the left-sided pain.
On 4 February 2009 the plaintiff was again treated with joint blocks by Dr Schwarzer, following which, he indicated complete relief, but later reported severe left-sided neck pain which was worse in the lower neck than the upper neck. On 9 April 2009 the plaintiff was admitted to Hunter Valley Private Hospital under the care of Dr Schwarzer to undergo a radio frequency denervation of the left C2-3 zygapophysial joint.
On 12 November 2009 the plaintiff underwent the same denervation procedure of the left C5/6 zygapophysial joint. On 7 December 2009 he reported significant improvement in his neck pain following those procedures. That led to a decrease in his neck pain and headaches, and an improved range of neck movement. On 1 March 2010 the plaintiff reported to Dr Schwarzer that he had benefited significantly from the radio frequency denervation procedures and had a marked improvement in his headaches and left-sided neck pain. He still had some mid-cervical pain and was prone to some flare ups.
In June 2010 Dr Schwarzer recorded that the procedures had eliminated the plaintiff's upper cervical pain and headaches and his lower cervical pain. However, the plaintiff continued to report some mid-cervical pain and was experiencing increasing low back pain, especially on the left.
The plaintiff underwent a further nerve block by Dr Schwarzer on 4 August 2010, following which, he experienced complete relief of his left upper cervical pain. On 1 September 2010 the plaintiff underwent a diagnostic block of the left L4/5 zygapophysial joint, consequently he had complete relief from his usual back pain. On 9 February 2011 Dr Schwarzer indicated that the plaintiff had reported that the relief was for about five to six hours and that the following day he had experienced his usual back pain and continued to report constant left lower back pain. On 23 February 2011 the plaintiff underwent a further joint block at the L4/5 joint, following which, the plaintiff experienced an improvement of his lower back pain. He underwent further denervation procedures in March 2011 with improvement in his pain and range of neck and back movement. Having regard to this history, I am unable to accept that the plaintiff enjoyed complete relief from his symptoms for a period of 9 months following each treatment by Dr Schwarzer. Rather, the plaintiff enjoyed transient relief to various parts of his cervical pain, but not others, and continued to suffer pain in his neck and lower back which required ongoing treatment.
The plaintiff had commenced training with H & R Block in early 2011 and on 1 June 2011 he commenced employment there, having been certified to work four hours per day, five days a week. That work involved assisting clients with completion of tax returns and associated work.
In 2012 the plaintiff underwent further nerve blocks performed by Dr Schwarzer which resulted in a reduction of his neck pain and headaches. On 3 May 2013 Dr Schwarzer reported that the plaintiff did very well following the denervation procedures to his neck and back in 2011 and 2012. However, on examination at that time he reported left-sided neck pain and headaches and pain in his left shoulder with restriction of movement of his neck and back.
On 11 April 2014 Dr Schwarzer was of the opinion that the plaintiff had a recurrence of his neck and back pain and was experiencing significant difficulties coping with that pain. Dr Schwarzer was of the opinion that the plaintiff had a poor prognosis and that he should undergo denervation procedures and remain on his current medications which included injections of Tramal 100mg, not more than once a month. The plaintiff would require denervation procedures every 12 months, and ongoing treatment by way of exercise programs, analgesia and psychological counselling. With appropriate treatment he may be able to increase his work hours and work through the year.
The evidence established that the plaintiff was taking the following medications - Endone, Panadol Osteo, Durogesic, Tramadol, Cialis, Maxalon, Temazapan and Effexor.
[19]
Cross-Examination of the Plaintiff with Respect to Damages
In the first trial, the plaintiff was subjected to cross-examination over a period of five sitting days. Movement of his neck was demonstrated to be limited to 30% by rotation to the left, and in a range of 20-25% of flexion, i.e. looking down. He was challenged that was an exaggeration and not the true position.
Following the accident the plaintiff agreed that he did not feel any pain initially, that he was more concerned about the car he was driving. He confirmed his treatment initially by Dr Kinsella and his referral to Dr Pacey, who also referred him to Dr Bull for relaxation techniques. He remained under the care of Dr Bull for three and half years.
The plaintiff agreed that he had left work after his supervisor had made a disparaging comment to him in early June 2003.
The plaintiff agreed that he had at that time seen eight or nine psychiatrists, including a Dr Leonard Lee. His sister-in-law, with whom he was close, had passed away in early 2003 from a brain tumour. It was put to the plaintiff that it would not be fair to attribute his attempted suicide on 16 June 2003 to the motor vehicle accident alone, to which he replied:
"A: No, well, the pain and Walter's comment and the fact that I couldn't even do three days works, I sat there on the weekend and made a noose and played with it all weekend and yeah."
The plaintiff said there was no other factor that drove him to that attempt on 16 June 2003. He said he was not depressed by the breakup of his marriage in 2002, but was saddened by it. He agreed that as at June 2003 he was a heavy user of cannabis, and used it every day. The plaintiff denied his attempted suicide on 16 June 2003 was triggered by the problems he was having with his wife, notwithstanding the handwritten note he left which became exhibit 2. He did agree that his relationship with his wife could be described as tumultuous.
The plaintiff gave evidence that he always had his left arm clutched to his abdomen, whether he was walking or sitting and he had done so since the accident in April 2003.
The plaintiff was also cross-examined on a motor vehicle accident he was involved in in December 2004, following which he suffered a flare up of his neck problems.
The plaintiff was cross-examined about his consumption of cannabis. He reported to doctors that prior to the accident he smoked between 10 and 15 cones on most days. He did not agree, however, two doctors reported that he told them that he had consumed 30 cones per day on a regular basis after the accident. He did, however, agree that it was "possibly" right that he had told Dr Mackie that he smoked between 20 and 40 cones per day. He did not agree that it made him feel lethargic, unmotivated or depressed.
The plaintiff agreed that he had been receiving, since the motor vehicle accident, workers compensation payments and government assistance amounting to $550 net per week, which was the same as his take-home pay from Regal Motors. When it was put to him that there was no financial motivation for him to go back to work at all since the accident, his explanation was that he was not getting bonuses or overtime.
In this trial, the plaintiff was again cross-examined on the degree of restriction of movement of his neck on rotation to the left and right. He was also challenged about his tolerance for sitting whilst he gave his evidence. He volunteered that he was instructed not to "moan and groan" as he gave his evidence.
The plaintiff gave evidence that he still held his left arm clutched across his abdomen every day, but not all day. He said that he still had pain in the left arm and therefore held it clutched across his abdomen, but not 24 hours a day. He demonstrated the extent of the movement in his left arm, which was restricted because he said it caused him pain. For that reason, if he had a choice of using his left or right arm for a task that involved a range of movement, he would choose his right arm over his left. He gave evidence that he had the stiff posture that he demonstrated in the witness box 99% of the time.
The plaintiff agreed that in the motorcycle accident in 2010 his body came in contact with the car that was travelling at approximately 40 kph. He denied knowing immediately that he had hurt his left shoulder in that accident. The plaintiff could not remember being taken for an x-ray of his left shoulder or being discharged from hospital with his left arm in a sling, but he acknowledged it could have happened. He did not agree that he did not tell Dr Kinsella about the motorcycle accident, however, in April 2012, Dr Kinsella retired and Dr Osmotherly became his GP. Subsequently, he changed to Dr Gibbs.
When asked what his maximum daily consumption of cannabis was, the plaintiff guessed it was 40 cones a day, but said that it was possibly as high as 50.
The plaintiff agreed with the proposition that putting his left arm above shoulder height and bending forward at the same time would cause him great pain and was something that he avoided. Similarly, if he had to do something that involved him using one of his arms overhead and bending at the same time, he would choose to use his right arm over his left. He was then shown the DVD surveillance video taken on 17 April 2012, 30 April 2012 and 14 May 2012 (exhibit 10) and agreed that the video showed that he had opened the bonnet of his motor vehicle and held it open for a period of time with his left arm above his head. However, he gave evidence that it was painful for him to do that.
The plaintiff agreed that when he swore his Family Court affidavit in June 2005, he did not suggest in this affidavit that he required any form of dependency on any person in respect of domestic activities. He agreed that he was seeking damages for 10 hours per week of domestic assistance and three hours of garden maintenance. After giving evidence of family camping trips and holidays, the plaintiff conceded that he was able to cook, mow the lawn and does bits and pieces of the shopping. He also carried out household cleaning tasks occasionally. He agreed that he had told the occupational therapist that he was no longer able to walk his dog.
The plaintiff was cross-examined about his attendance at Lorna House, a drug rehabilitative centre. He attended on only one occasion because he did not believe that he could go "cold turkey".
In respect of the family law affidavit and the paragraph referred to above, the plaintiff was asked about his examination by Dr Edwards, a psychiatrist who examined him for MAS one month before he swore his family law affidavit. He agreed that he told Dr Edwards that at that time he had regular suicidal thoughts, poor sleep, no interests and poor motivation. He agreed that was inconsistent with the family law affidavit. He said that what he told Dr Edwards was the truth.
The plaintiff denied exaggerating his symptoms when examined by doctors.
The plaintiff gave evidence that he did work for the Hunter Volunteer Centre from April 2006, and continued to work there until March 2011. His supervisor was Caroline Roddenby who gave evidence on his behalf at the first trial. At the Volunteer Centre he was involved in mainly typing and printing and office administration. He also completed a certificate in volunteering in 2009.
The plaintiff has received family payments since the Family Court case in 2004, and received workers compensation payments until December 2012. Since then he had continued to receive family payment benefits and a disability support pension, together with income from H & R Block. The plaintiff enjoys work at H & R Block and felt a sense of worth from it. It was work that he had been successful at.
With respect to the MRI scan that the plaintiff underwent on his cervical spine and lumbar spine on 28 September 2008, he agreed that at the first trial he was not aware of the results of that scan, however, he had informed his solicitors about the MRI scan and described what happened at the first trial as "a huge misunderstanding".
With respect to Dr Bentovoglio, the plaintiff believed that he would have told that doctor about the motorcycle accident in 2010, however, he had no recollection of doing so. He worked three days a week at the Hunter Volunteer Centre between 2006 and 2011 usually from 9.30am to 1.30pm. He enjoyed the work which involved working on policy and procedure and only ceased the work when he began at H & R block. That work involved the reporting season for tax returns between 1 July and 30 October, however, it also involved preparatory schooling and a tax course which was examined each year.
The plaintiff gave evidence that the nerve blocks administered by Dr Schwarzer assisted him, however, the last one was in 2012 because Work Cover had thereafter denied liability. He believed the DVD, exhibit 10, was taken on 30 April 2012, just after he had nerve blocks carried out in March/April that year. When asked how long they last, the plaintiff gave evidence that it was probably six or seven months good relief and then probably nine months before it is back to normal, meaning his pain returned. As a result of not being able to afford the blocks now, his pain was a lot more constant and more intense.
The plaintiff was asked about his family law affidavit and gave evidence that at the time he swore that affidavit he had custody of his four children and was concerned about their wellbeing whenever they were with their mother. Further, a family day care lady had spoken to him about contacting DOCS as part of her duty of care to the children. The affidavit was prepared with the assistance of his family law solicitor.
In respect of the action shown in exhibit 10 of him holding the car bonnet with his left arm above his head, he gave the following evidence:
"A: The bonnet has bonnet struts on it which hold it up, because it's a slight incline it was gently falling down, hence we had to get the stick there so I wasn't actually supporting its weight, I'm just sort of basically just holding it there, then I've made sure I've sort of kept my arm sort of comfortable below shoulder height."
The plaintiff gave evidence that he was still using marijuana as a painkiller and confirmed that his current medications were Effexor, Panadol Osteo, Endone, Durogesic patches and Tramal.
In respect of the motorcycle accident in 2010, the plaintiff gave evidence that he was taken to John Hunter Hospital by ambulance and following an x-ray to his shoulder, he was discharged. The effect of the accident flared up his pain for a week or so, however, it then went back to normal.
The plaintiff was also asked about his attendance at Lorna House, and explained that he wanted to cut back gradually whereas those running the program stipulated that it was a total abstinence course, and therefore he was not included in the course. Notwithstanding that, he was told that it was up to him whether he stayed that day, and he did stay and listen to the session. The other persons attending the course were ordered to do so by the court, whereas he was a volunteer. Finally, the plaintiff gave evidence that he regarded his consumption of cannabis a major part of his pain management.
[20]
Lay Evidence Called On Behalf of the Plaintiff
In the first trial, the plaintiff called Lesley Patricia Horton who first met the plaintiff eight years before that trial. He worked with Mrs Horton's husband and was friendly with her son. She gave evidence that she saw him socially with his children and she described him as always "polite, amiable, very kind, very good father". Following the motor vehicle accident she observed him to be restricted in his movements and described him as "very stiff, held his neck strangely and seemed to have not much mobility in his spine". She noticed that he always held his left arm and would support it with his right hand, and that his mood was flat. She would see him once a fortnight during summer and at least once a month during winter. She was aware that he used cannabis before the accident but never observed him to do so. Mrs Horton was not cross-examined.
Caroline Roddenby was a program manager at the Hunter Volunteer Centre. In that role she met the plaintiff through the pain clinic and he was allocated a position as her personal assistant. He was working for three days a week, four hours a day and she described his movements as being very restricted and she observed him holding his left arm close to his body, supported by his right arm. During the time that she was associated with him she observed him to be depressed and that he appeared to be in pain the whole time.
In cross-examination Ms Roddenby agreed that the plaintiff fitted in well with her organisation and got on well with the people at work. He also displayed good administration and computer skills and picked up the work very quickly. She was not with him at all times he was at work.
William Hardes had known the plaintiff since 1990. He became aware of the plaintiff's marital breakdown. Prior to the motor vehicle accident he had worked with the plaintiff at Regal Motors for between eight and nine months. He was the service adviser and observed the plaintiff to carry out his duties there satisfactorily.
Mr Hardes was aware that the plaintiff smoked cannabis regularly and described him as a loving father.
After the motor vehicle accident he observed the plaintiff to be in a lot of pain in his neck and back and he seemed to be suffering from depression. The plaintiff had told him that his consumption of cannabis helped with his pain management following the accident.
In this trial, the plaintiff called Jennifer Margaret Hallin, his partner, who had known the plaintiff for 11 years. She had been his partner for four years and they lived with her four children and three of his children in a seven bedroom home. They lived on benefits from CentreLink totalling $500 per week each, and she received the carer's pension for the plaintiff. Ms Hallin gave evidence that she only knew the plaintiff a little bit before the accident, but became aware that he had an accident and there were changes in his apparent physical condition. Her evidence was that he was in a lot of pain, and was very depressed.
Ms Hallin gave evidence that she had dropped the plaintiff off to his appointments for nerve blocks with Dr Schwarzer, but when asked whether there was improvement or deterioration after those procedures, she described the improvement in these terms:
"It does ease it a little bit but not as much as I thought it would have."
Ms Hallin gave evidence that the plaintiff did not sleep well at night and that he consumed marijuana to a large extent. However, he was involved fully in the care of the children, but did complain of pain every day.
Ms Hallin described the plaintiff as not being able to get out of bed until 1pm or 2pm on some days because he has flare ups of his pain and they can be three or four times a month. She described their sexual relationship as "an unhealthy one with a frequency of once per month", however she described him "as my best friend" and said that she was happy with him.
In cross-examination Ms Hallin agreed that she herself used cannabis but not very often. She agreed that it was probably after April 2003 that she got to know the plaintiff.
In re-examination she gave evidence that she became aware of the plaintiff's accident through his ex-wife.
Shane Mitchell gave evidence that he had known the plaintiff since the late 1980's but had lost contact for a period. However, they had been fairly close friends over the last 10 years and he became aware that the plaintiff was involved in a motor vehicle accident in April 2003. It was after that accident that they renewed their friendship and he saw him at least twice a week. He observed the plaintiff to be in a lot of pain and he had observed him on occasions being unable to get out of bed. In cross-examination Mr Mitchell confirmed that it was only after the plaintiff's accident that they renewed their friendship.
Ms Rebecca Anne Northey gave evidence that in 2011 she was employed as the manager of H & R Block Hamilton store. It was the biggest branch in Newcastle. The plaintiff worked with her closely on a day to day basis in 2011 and 2012. In January 2013 she left the business to take a job at the Australian Taxation Office. As his supervisor, Ms Northey described his work as "brilliant". He got on well with customers. She gave him a lot of extra hours work but found that he was not able to cope physically with the amount of work, so his hours were decreased to suit him. Ms Northey wanted to offer him all year round work, however, she did not think he was able to physically handle working six days a week. When he was at work he was given the opportunity to stand and stretch and go for a walk between clients. His work was very accurate and he was the best new casual that she had supervised.
In cross-examination she described the plaintiff as very personable and a good communicator. They worked in an open office and she observed him with clients. She allowed him to go out the back between clients and stretch so he could move around and loosen up, as just sitting in the one spot was causing him troubles. There was no re-examination.
[21]
The Medical Evidence
At the first trial, the plaintiff called Dr Ghabrial, orthopaedic and spinal surgeon, who, at the time of that trial, had seen the plaintiff on two occasions for examination and medico-legal report. He first examined him on 22 October 2003. Dr Ghabrial referred in his report to a slight loss of disc height at L5 level of the plaintiff's spine and he gave evidence that he was of the opinion that the loss of height was due to a disc protrusion caused by trauma. The reason for that was that there was no evidence of degenerative changes at L5 level on x-rays. He also reported on interior displacement of C2/3, C3 and 4, but was of the opinion that was soft tissue type damage. In respect of the plaintiff's left shoulder, Dr Ghabrial diagnosed severe soft tissue injury with secondary impingement and post-traumatic adhesive capsulitis.
Dr Ghabrial saw the plaintiff for the second time on 18 August 2006. At that time, he considered the plaintiff's condition was permanent. In respect of the clinical findings, Dr Ghabrial was of the opinion that he needed an MRI scan to be certain of those findings in the plaintiff's cervical and lumbar spine. At the time of his second examination, the plaintiff's lumbar spine had improved, however, his neck and shoulders had not.
In cross-examination Dr Ghabrial agreed that the restriction to movement of the shoulder caused by adhesive capsulitis, was a mechanical restriction which would generally get better with time.
Following Dr Ghabrial's evidence, on 6 November 2008, during the first trial, counsel for the defendant then tendered the report of an MRI examination carried out on the cervical and lumber spine of the plaintiff on 29 September 2008. It was that tender that gave rise to the credit issue dealt with by the trial judge and the Court of Appeal.
The MRI report is contained in exhibit 2.28 and states as follows:
"MRI Cervical Spine
Report
No focal disc lesion. Central canal capacious. Adequate foraminal patency. No evidence of neural compromise.
The cervical cord displays normal morphology and signal.
Conclusion
Normal study.
MRI Lumbar Spine
Report
The L5/S1 disc is degenerating with loss of T2 signal and diffused posterior annular bulging. No superimposed protrusion seen. No evidence of neural compromise.
No other focal disc abnormality.
The central canal is capacious throughout and there is adequate foraminal patency at all levels.
Normal conus.
Conclusion
L5/S1 disc degeneration. No neural compromise or other abnormality."
Despite the numerous medical reports tendered on behalf of both parties in this case (comprising over five volumes of materials), there are two central medical issues to be determined before an assessment of damages can be made. They are as follows:
1. Whether the MRI provides support for the plaintiff's case as set out in the opinion of Dr Bentovoglio reproduced in paragraph [188] above that the abnormal result for the plaintiff's lumbar spine described as "discal damage to L5/S1", was, on the balance of probabilities, caused by the motor vehicle accident in June 2003. The defendant's case relies on the opinion of Associate Professor Oakeshott set out in the same paragraph above where he opines that the MRI does not support that conclusion.
2. Whether the plaintiff has a psychiatric diagnosis and if so, whether that was caused by the motor vehicle accident.
In the first trial, the defendant called Dr Maguire, psychiatrist, who had examined the plaintiff on three occasions in March 2005, May 2005 and May 2007. On those occasions the plaintiff's main presenting physical problem was pain in his left shoulder and neck, which was causing him distress. Dr Maguire was of the opinion that he did not fulfil the criteria for a major depression. That was the major point of difference from the plaintiff's case, relying on Dr Phillips, who had diagnosed a pain disorder associated with psychiatric factors and the plaintiff's general medical condition which was premised upon a diagnosis of major depression. Dr Maguire was shown the MRI study and asked whether those findings caused him to alter his opinion in any way. Dr Maguire said that it did not, but that it gave rise to a question as to whether there was some form of psychological benefit to be obtained by the plaintiff by the reporting of the pain in the absence of pathology.
Dr Maguire was cross-examined at length about the circumstances of the plaintiff's attempts at suicide, and the material factors in bringing that about. Dr Maguire was also cross-examined about the various medications prescribed for the plaintiff, both analgesics and anti-depressants.
Dr Maguire was cross-examined about the video surveillance exhibits 24, 25 and 27 and agreed that it was possible that the plaintiff's habit of holding his left arm across his body was the result of a psychological reaction, namely, that he had convinced himself that he had a more serious problem with the arm than the physiology would explain.
Dr Maguire would not concede that the plaintiff suffered a major depression on the basis that he was not always depressed when he saw him, and that his behaviour was inconsistent with a pervasive mood disorder.
In re-examination Dr Maguire was asked whether it was possible to say whether the plaintiff fell into the category of a conversion disorder. He gave the following answer:
"A: I can't say in the absence of, I mean the weight of medical evidence has to determine whether he has a biological problem. If he does not have a biological problem and he's considered to be genuine in his behaviour and that he's not simulating, then one would think it highly probable that he has a conversion disorder."
At the trial, the plaintiff called Dr Bentovoglio and Dr Phillips. Dr Bentovoglio's evidence was given by telephone. In evidence in chief, he was asked about his opinion based on the MRI scan as set out above, and was asked whether there was anything significant in the five year gap between the accident and the MRI scan. He answered:
"A: I would have far preferred it to be straight - you know - pretty well straight after the accident. But that's about it. Yes. It's a timing thing. I would have far preferred straight away rather than five years later.
Q: I suppose it's important to know whether there were any further insults between the accident in April 2003 and the taking of the MRI?
A: That's right.
Q: Assuming that there were none, none known of, would that assist in attributing the accident on -
A: Yeah. That's what I thought was the case. Yes."
Dr Bentovoglio then gave evidence that the ultrasound of the plaintiff's left shoulder taken on 6 June 2012 showed a tear of the supraspinatus tendon with evidence of the bunching of his rotator cuff tendon. He was asked whether such an injury was consistent with the motor vehicle accident and answered:
"A: Yes. It could definitely have been caused in the accident of September 2003."
That ultrasound was performed in May 2012.
In cross-examination, an ultrasound study taken out on 1 May 2003 (exhibit C, tab 1, pg 1) was put to Dr Bentovoglio. That report, which had been tendered by the plaintiff in the proceedings, read:
"There is no evidence of fracture of dislocation and no arthropathy in the A, C or glenohumeral joints. No underlying bony lesions are seen. The tendons of the rotator cuff and biceps tendon were intact with no evidence of tendonosis or tear. There was no bursal thickening or effusion. There was mild decreased range of movement due to severe pain, but no significant passive decrease in range."
Dr Bentovoglio gave evidence that if the plaintiff had suffered a tear in the motor vehicle accident it would have shown up in the earlier MRI scan, subject to false positives for ultrasounds. He was not aware that the plaintiff had been in a motorcycle accident in November 2010, but agreed that the type of trauma suffered by him could be consistent with the results of the pathology that he saw in May 2012.
In respect of the disc lesion at L5/S1 shown on the MRI study, he gave the following evidence:
"Q: The disc lesion that you had observed on the MRI could be consistent also with degeneration, couldn't it?
A: Yes, there's no way of telling.
Q: Unless you had an investigation of a similar type or quality to an MRI done immediately before and then after the accident, you couldn't possibly say, could you?
A: Correct.
Q: Would you expect that there would be, in the event that the lumbar disc lesion was traumatic - that is to say, occurred in an accident - would you expect there to be an onset of pain after the accident?
A: Within a reasonable length of time, yes. Not suddenly five years later, but you'd expect within a week or two after the accident, yes.
Q: The type of pathology that Mr Singler has in his lumbar spine is the type of pathology that can and does show up regularly in people who have not suffered any trauma, isn't that right?
A: Yes."
In re-examination it was put to Dr Bentovoglio that the plaintiff was 30 years of age at the date of the accident and had not performed heavy work. He was asked whether it would be unlikely to have degeneration leading to a recognisable disc lesion at that age and he answered:
"A: It would be fairly uncommon, yes."
Dr J Phillips, consultant psychiatrist, provided five reports dated 12 April 2007, 19 September 2007, 22 March 2012, 4 July 2012 and 11 July 2012. In his first report dated 12 April 2007 Dr Phillips gave the following opinion:
"I've interviewed Mr Singler and reviewed carefully all materials made available to me and summarised documents which I considered to be of first rank importance. I'm left uncomfortable at the end of this process, noting that the plaintiff has probably been misdiagnosed to his considerable advantage. I do not doubt that the plaintiff suffered physical injuries at the time of the accident, or that he developed a major depressive disorder following that incident and as a consequence of the incident (notwithstanding that he probably suffered an earlier episode of depressive spectrum symptoms mainly with the breakup of his marriage). However, none of the experts involved in this case appear to have given sufficient consideration to the issue of the plaintiff suffering a pain disorder associated with psychological factors and a general medical condition, this almost certainly being his most significant long-term diagnosis, and a disorder which will best explain his ongoing level of invalidism.
Two matters stand out about the motor vehicle accident which occurred on 7 April 2003. First, the accident was physically violent with Mr Singler undoubtedly having been thrown about at/around the time of impact with probably acceleration/deceleration and lateral forces acting on his head, neck and spine. Second, the accident was psychologically traumatic and is remembered by the plaintiff."
Dr Phillips went on to opine that the plaintiff's ongoing major depressive disorder had been caused predominantly by the motor vehicle accident.
In his report dated 22 March 2012 Dr Phillips referred to the MRI scan as reported by Mr Singler. That report was that the plaintiff had suffered a "collapse" of the L5/S1 disc. He then listed a large number of physical and psychological symptoms that the plaintiff self-reported. As part of his assessment, he had the plaintiff complete a Beck Depression Inventory ("BDI") and Beck Anxiety Inventory ("BAI') which results placed him at the high end of the range for severe depression and also within the range for potential concern in respect of anxiety.
Dr Phillips then diagnosed two interlocking psychiatric disorders (Major Pain Depressive Disorder, Pain Disorder associated with both psychological factors and general medical condition) which would explain his level of invalidism. The plaintiff's ratings as a result of the BDI and BAI were higher than his clinical assessment; however, Dr Phillips did not believe that the plaintiff had consciously exaggerated those symptoms.
In his report dated 4 July 2012, Dr Phillips commented on the discrepancy between his presentation, posture and movements on the surveillance tape, compared with his presentation when examined by Dr Phillips and other doctors as reported. When Dr Phillips examined the plaintiff on 8 November 2006, the plaintiff had held his left arm across his abdomen and he got up to stretch on a number of occasions. Under the heading "Opinion", Dr Phillips stated that he had not had the opportunity of assessing the plaintiff since November 2006. This was incorrect as he had in fact examined him again on 8 November 2011, as stated in his report dated 22 March 2012. Dr Phillips set out the following opinions:
"12 The most likely explanation for Mr Singler's seemingly exaggerated presentation (particularly his histrionic presentation in the manner he holds his left arm) is to accept that his behaviour is an attempt to convey his level of distress to the examining expert. In a sense, the plaintiff's behaviour is a pantomime of communication rather than a process of deceit. Despite having a probable reasonable level of intelligence and enjoying English as a first language, the plaintiff is a man who is not psychologically oriented and who appears not to think in an abstract manner. It is my firm view that, in the context of his major depressive disorder and his pain disorder, he tries to demonstrate his level of distress by use of exaggerated expressions and sounds, and the postural presentation which suggests pain and illness more generally.
13 Diagnostic economy is central to the medical/psychiatric process. Simply, Mr Singler was suffering two significant psychiatric disorders when I examined him in 2006. He did not find it easy to give his history and he has reverted to a primitive non-verbal language in an attempt to demonstrate his level of distress.
14 The possibility that Mr Singler is malingering cannot be left out of any consideration of his behaviour. However, it becomes necessary to introduce a third diagnosis of feigned illness. The principle of diagnostic economy favours one diagnosis over two, two diagnosis over three and so on, with Mr Singler's presentation best understood as his attempt to communicate distress in the context of major depressive disorder and a pain disorder.
15 It is important to recognise that psychiatrists have no special expertise in the identification of feigned symptoms (malingering). It is a decision which may be better made by the court when all information becomes available.
16 Finally, and with respect, I caution against making a valued judgment in Mr Singler's case in deeming him to be a malingerer. I do not believe this is the case."
Dr Phillips gave evidence at the first trial on 25 August 2008, at which time he had not reached the above diagnosis. However, on that occasion in his evidence in chief, he was asked to explain what "somatisation" is, as referred to in his first report. He gave this evidence:
"A: Well somatisation broadly is where a person converts psychological tension into physical symptoms. The best way to understand somatisation is to think of it as a non-verbal language where a person who can't quite explain the way he or she feels will almost in pantomime develop a series of physical symptoms. The process of somatisation as best we understand it, it's beyond conscious awareness, it's a process which occurs not uncommonly often in people who are of non-english speaking background, often in people who are not particularly literate in a psychological sense or particularly verbal. It's quite a common process.
Q: Is it related to chronic pain or trauma?
A: Well it can be related to any form of physical disorder but it's primarily related to a psychological disorder and of the psychological disorders probably the depression spectrum disorders are the most likely to be accompanied by the process of somatisation."
Dr Phillips was cross-examined on that occasion about the very unusual posture that the plaintiff adopted during his examination, holding his left arm across his lower chest, supported by his right hand. Dr Phillips made it clear that his diagnosis of major depression was based on his understanding that there had been no significant temporal break in the plaintiff's depression. He had developed symptoms of pain since very shortly after the accident of moderate to severe intensity and Dr Phillips had a history of continuous symptoms of depression since then. It was also put to Dr Phillips that only he and Dr Edwards, of a large number of psychiatrists and psychologists who had examined the plaintiff since his accident, had come to a diagnosis of major depressive disorder. Further, in respect of the plaintiff's suicide attempt in June 2003, it was not Dr Phillips' perception that the plaintiff's relationship with his wife was tumultuous.
In his evidence in chief in this trial, Dr Phillips was asked to comment on the difference between the results on the BDI testing and his own objective testing. He stated :
"A: The conclusion I reached and I hope it's correct, is that he has been illness focussed for quite a long time in the context of a major depressive disorder and a pain disorder and everything becomes magnified in the person's own mind. It's not the only explanation obviously. But I think on balance it's the best explanation with this particular person.
Q: Are you aware of the fact that he has a demonstrated lumbar spine disorder?
A: Yes. I'm aware that he has pathology at L5/S1.
Q: And that he has been diagnosed as having a shoulder injury? Whether it's referrable to the accident which he's suing or not, that he's been diagnosed as having a shoulder injury?
A: Yes. I'm aware of that also.
Q: Would those contribute to the sort of condition that you're talking about?
A: Yes, they are. I mean as with almost every psychiatric case, if I could put it that way, there would be a number of factors which need to be explored and in my mind there's no doubt that he suffered injury to his left shoulder and the shoulder girdle really and perhaps to his left neck and left side of his neck and that he also has demonstrable pathology in the lower lumbar sacral spine, which in their own right would produce pain.
Q: And would contribute to the unusual presentation you're talking about?
A: Yes, I mean the pain, the best way to understand pain in this man's case is to see part of it as truly physiological associated with known pathology and part of it, how should I put it, a magnified perception of pain, which sits both in the context of the known pathology and his depressive disorder and that's where the pain disorder becomes generated."
Dr Phillips was asked about the plaintiff's use of cannabis for pain control and responded that he accepted the history, but as a clinician, that worried him enormously. He was asked also about the plaintiff's work experience with H & R Block and the assessment of him given by his supervisor. He was asked how that fitted in with the psychological picture. His answer was as follows:
"I mean there are some oddities there which I think I need to comment on that twice, on my assessment, this man had a major depressive disorder of moderate depth and a pain disorder and probably on top of that true physiological pain and he uses a staggering number of cones of cannabis and I would have thought that it's unusual for person given that background to be able to work effectively. I did make a comment I think twice in my various reports of one of the things that impressed me was his desire to work, be it paid work or be it pro-bono work, and I guess I could only say that I'm surprised and in many ways pleased if that's the case."
In cross-examination Dr Phillips was asked about other explanations for what might be referred to as feigned symptoms or feigned disabilities. He agreed that those explanations included dishonesty or conversion disorder. He agreed that in determining whether a patient was genuine or malingering, one would look for objective evidence, consistency of complaint, consistency of symptoms and consider their mood and self-perceptions.
He agreed that one of the things that might have caused difficulty in that assessment in respect of mood and self-perception, was substance abuse. He said, "It tends to cloud everything."
Dr Phillips conceded that he was not aware of the quantities in which Mr Singler had consumed cannabis.
Dr Phillips agreed that he had assumed that Mr Singler had suffered physical injury and did not diagnose that himself. Dr Phillips confirmed that he proceeded on the plaintiff's reporting that he had a collapse of L5 vertebrae and his own observations of the plaintiff's physical disabilities, namely, holding his left arm against his abdomen and having difficulty sitting.
In evidence, Dr Phillips did not consider the plaintiff's appearance as a somatic presentation; rather, he believed that the way he held his arm, his movements, wincing and so on was a communication. The plaintiff was trying to communicate something to him. In coming to that conclusion he had assessed what he was observing as a manifestation of physical injury.
Dr Phillips was cross-examined on the content of the surveillance material and opinions of other doctors. He acknowledged that there was a startling inconsistency between the plaintiff's presentation on examination and what was shown in the surveillance evidence. He agreed that the physical component of his diagnosis was utterly inconsistent with what was shown on the film. It was his opinion that his diagnosis of major depression underpinned his secondary diagnosis of pain disorder.
Dr Phillips also agreed that his pessimistic prognosis in September 2007 about the plaintiff's work prospects had turned out to be incorrect, in that the events had turned out much better than his prognostications. It was clear that he had arrived at the diagnosis set out above in November 2011 without the plaintiff's history of excelling at his work at H & R Block from June to October that year. He agreed that in functioning the way he did at work would suggest a level of cognitive function in excess of that which Dr Phillips would otherwise have thought to be the case on the basis of the information he had before him in November 2011.
Dr Phillips agreed that malingering constitutes a conscious decision to produce symptoms for secondary gain, namely, damages from litigation. The same would apply to receiving a disability pension or a carer's pension. Secondary gain also could be less tangible, for example, obtaining sympathy or attention.
Dr Phillips confirmed that lethargy and lack of motivation were classic symptoms of cannabis use and volunteered that depression was also.
Dr Phillips agreed that he had described the plaintiff as being significantly focussed on his mental and physical status which led to him reporting greater intensity of symptoms. That occurred over time, particularly as the legal process extends that time. In this case, that process had taken some nine years.
Dr Phillips accepted that he had not picked up what he described as the plaintiff's pantomime of communication on his first assessment of him. He agreed that malingering is not a diagnosis made pursuant to DSM V. Otherwise, his two diagnoses were inextricably linked to his diagnosis of major depressive illness which, in turn, relied on a number of assumptions including continuing episode of depression without remission. It also involved accepting the genuineness of the history provided by the plaintiff. He agreed that a conclusion of malingering was one that relied on fewer assumptions and was an alternative to the two diagnoses made by him.
In re-examination Dr Phillips was asked about the suicide attempt on 16 June 2003. He gave evidence that it was linked to the motor vehicle accident temporally in reasonably close association and was thereby linked. Dr Phillips also clarified that he had referred to the plaintiff's work at H & R Block and his voluntary work in his report dated 22 March 2012.
The plaintiff also relied on two reports of Dr Schwarzer dated 19 April 2012 and 11 April 2014. Dr Schwarzer first examined the plaintiff on 18 August 2008 and recommended that he undergo an MRI scan of his neck and lumbar spine. The reports outline the history of treatment by Dr Schwarzer by way of joint blocks and radio frequency denervation of the C2/3 and C5/6 joints. He reported marked improvement in the plaintiff's neck pain on 7 December 2009, together with an improved range of movement. On 1 March 2010 he reported a marked improvement in his headaches and left-sided neck pain and on 7 June 2010 he reported that the procedures had eliminated the plaintiff's upper cervical pain and headaches and his lower cervical pain. He still reported some left-sided mid cervical pain. He also had experienced increasing low back pain, especially on the left side.
Dr Schwarzer examined the plaintiff regularly from the period 2010 to 2012. He continued to have some pain in his left shoulder and left lower back and continued on medications for his pain.
In his report dated 11 April 2014 Dr Schwarzer outlined his continuing treatment of the plaintiff throughout 2013 until April 2014. He recorded that the plaintiff's neck pain had remained quite stable until the end of 2012 when he started to experience a recurrence of that pain with headaches. His neck and back pain had improved following further procedures. He continued to suffer from flare ups of pain in the left side of his neck which were unpredictable. He was at times unable to cope with the pain. Dr Schwarzer was of the opinion that the plaintiff was experiencing significant difficulties coping with his pain and the way forward for him was to undergo regular radio frequency denervations of the joints to control the pain, and to remain on his current medications. The plaintiff's prognosis was guarded, if not poor.
[22]
Determination of the Medical Issues
Following the motor vehicle accident on 7 April 2003, the plaintiff suffered injuries to his neck and lower back for which he was first treated by his local medical officer, Dr Kinsella, and then referred to Dr Pacey. The neck pain radiated to his trapezius area and he suffer occipital headache. In a report dated 28 May 2003, Dr Pacey recorded the plaintiff on examination to be carrying his left arm across his body and avoiding using it. He presented to numerous other doctors, including treating doctors, doctors employed by the workers compensation insurer, his own medico-legal doctors and those who examined him on behalf of the defendant in a similar fashion over the years. He also presented in that fashion in the first trial in 2008, but not in the trial before me. He did, however, exhibit restrictions in moving, particularly rotation of the neck when he gave his evidence before me.
There is no evidence that he suffered anything other than soft tissue injuries to his cervical spine in the accident. The MRI report supports no other finding. I am not persuaded that that study demonstrates that he suffered more than a soft tissue injury to his lumbar spine in the incident as well. The report itself is couched in terms of there being no neural compromise. Dr Bentovoglio in cross-examination conceded that it was consistent with degeneration of the spine. I am not persuaded by the evidence in re-examination that because there was no history of him undergoing heavy work, such a finding would be unusual.
The ultrasound report dated May 2012 does not establish that the plaintiff suffered an injury to his left shoulder in the motor vehicle accident in April 2003. Indeed, an ultrasound taken in 2003 ruled out any such injury.
In respect of the causal nexus to the findings on the MRI scan relating to his lumbar spine and the motor vehicle accident, I am not persuaded to accept Dr Bentovoglio's opinion that those changes, as shown on the MRI, were caused by the motor vehicle accident. Dr Bentovoglio gives no reason for his conclusion. In cross-examination he said that he was concerned by the effluxion of time and would be more satisfied about his conclusion if the study had been conducted closer to the injury. I prefer Professor Oakeshott's evidence on this question and therefore I am not prepared to accept that any discal damages as demonstrated on the MRI scan taken in September 2008 were caused by the motor vehicle accident. Rather, I accept that he suffered a soft tissue injury to his lumbar spine.
The proper characterisation of the plaintiff's psychological condition following the accident is much more difficult to discern. Clearly, he had suffered a psychological reaction to the separation from his wife which took place in 2012. The progress notes from John Hunter Hospital, following his admission on 15 June 2003, after a suicide attempt, all focus on the relationship problems that he was having at that time with his wife. In fact, they note that he had recurrent but fleeting suicidal ideation since his separation.
Subsequent admissions to John Hunter Hospital for neck pain (on 16 March 2005 and 17 June 2007) do refer to the motor vehicle accident and the problem he had been having subsequent to it. I find that the plaintiff did continue to suffer neck pain which radiated to his trapezius and left arm, as well as low back pain throughout the period 2003 to 2007.
I also find that the plaintiff suffered a depressive reaction to his pain. However, that was not the only cause of his depression. The principal factor was the separation from his wife in 2002 and the effect that that had on him and his four children. That continued throughout the family law proceedings in 2004 and 2005. Accepting that the plaintiff suffers depression, it is enough that he shows that the motor vehicle accident is a cause of the condition for which damages are claimed, namely, his depressive condition - see Shorey v PT Limited (2003) 197 ALR 410 at [41] per Kirby J. The court does not have to determine that the motor vehicle accident is the cause of his condition. However, here, there are a multitude of factors at play. In the early years following his accident in April 2003, the main precipitating factor of his depression was, in my view, his separation from his wife and the ensuing family law proceedings over custody of his children. In addition to that, and clouding most of the issues, was his long-standing abuse of cannabis.
I do not accept Dr Phillips' evidence of the hypothesis that this plaintiff was suffering a "pantomime of communication". The plaintiff is an intelligent man who had worked in numerous occupations, formed various relationships and according to his supervisor at H & R Block, was a person who had good rapport with clients and an ability to carry out skilled work. The difficulty with Dr Phillips' hypothesis is the surveillance videos which are entirely inconsistent with this plaintiff's presentation in court and to doctors, the opinion of his supervisor at work, as referred to above, and the various credit problems outlined earlier in this judgment. It is clear that the plaintiff exhibits no signs of a pain disorder when he believes he is not being observed, and notwithstanding the diagnosis of major depression, he has moved on with his life, forming a new relationship, being responsible for a large family and doing both volunteer and paid work. As stated by Dr Phillips, it is not for a psychiatrist to make a finding of malingering, rather, that is the role of the court, having regard to all of the evidence and particularly the objective evidence available at the conclusion of the hearing. All of that evidence, in my view, points to a conclusion that the plaintiff has been malingering in terms of his endeavours to maximise his damages in this litigation. I therefore prefer the evidence of Dr Maguire to that of Dr Phillips.
[23]
Assessment of Damages
It is clear from the above findings that I do not accept the plaintiff's evidence about his injuries and disabilities and I find that he exaggerated the effect of the injuries on him. Whilst I find that he was depressed following the accident, leading to an attempted suicide on 16 June 2003, the principal catalyst for that attempt was the breakdown of his relationship with his former wife. Consequently, his ongoing pain and depression were multi-factorial, namely, his domestic situation, his long-term abuse of cannabis and the fact that the receipt of social security payments by way of child allowance and carer's pension, disability pension and compensation payments meant that there was no incentive for him to return to work. This is a complex case in which to assess damages. The plaintiff, once he obtained relief from his pain, sought first, voluntary work at the Hunter Voluntary Centre and subsequently worked at H & R Block, at which he excelled, but in which he was limited physically. I therefore find that the plaintiff's capacity to earn was partially diminished from the date of the accident until the end of 2010. The amount is not capable of precise calculation as advocated by the plaintiff, however, I allow the sum of $200,000.00 for that period.
The plaintiff would be entitled to superannuation on past loss of earning capacity calculated at 11%, an amount of $22,000.
Based on the above findings, I am not persuaded that the plaintiff will suffer any future economic loss as a result of injuries he received in the motor vehicle accident in April 2003. I therefore would have declined to make any award for future economic loss.
The plaintiff has not passed the threshold for an award of past domestic assistance of requiring such assistance for six hours a week for a period of six months and therefore I would have declined to make any award of damages under that head. The evidence establishes no need for an order for any future domestic assistance.
For past treatment expenses I note that the plaintiff claims $166,234.53. Of that amount, $20,700.31 was paid by the workers compensation insurer. The defendant concedes that within the period 2003 and 2004 the plaintiff incurred out of pocket expenses of $15,715.66, however, does not concede the expenses were reasonably incurred or were related to the accident. It is difficult to discern without evidence as to each and every item, however, it is reasonable to allow the sum of $20,700.00 for past out of pocket expenses.
There is no evidentiary basis for an award of future treatment expenses for the plaintiff, and I decline to do so.
Fox v Wood (1981) 148 CLR 438 payments are claimed in the sum of $23,615 and I allow that sum.
I therefore assess damages as follows:
Past economic loss $ 200,000.00
Past loss of superannuation contributions $ 22,000.00
Past out of pocket expenses $ 20,700.00
Fox v Wood $ 23,615.00
Total $ 266,315.00
[24]
Conclusion
For the reasons outlined above, I find that the plaintiff has not established his case in negligence against the defendant, on the balance of probabilities, and therefore must fail. Even accepting that the defendant owed the plaintiff a duty of care, I have found that there was no breach of that duty, and in the event that I am wrong in that finding, any such breach was not causative of the plaintiff's injuries.
I have also found that the plaintiff lacked credit and that his evidence had to be carefully scrutinised and could be accepted without objective corroboration. I do not accept Dr Phillips' explanation for his presentation before the first trial judge and before numerous doctors as being a "pantomime of communication". Rather, the plaintiff I have found has been malingering and has exaggerated the claim for damages brought on his behalf.
There will therefore be a verdict for the defendant in these proceedings.
[25]
Orders
I make the following orders:
1. Verdict for the defendant.
2. Plaintiff to pay the defendant's costs of the proceedings.
3. Plaintiff to pay the defendant's costs of the first trial.
4. The exhibits are returned forthwith.
5. Any application for a special costs order should be made by way of a Notice of Motion filed and served, together with any affidavit in support, seven days prior to the return date.
[26]
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Decision last updated: 01 April 2015