Stanislaw Samoty v Armin Rauber [1987] ACTSC 82 (17 December 1987)

SUPREME COURT OF THE ACT

STANISLAW SAMOTY v. ARMIN RAUBER
S.C. No. 1486 of 1983
Evidence - Negligence - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Evidence - credibility of plaintiff - difficulty of assessment - no new matter of principle.

Negligence - motor vehicle accident - plaintiff a passenger - defendant driver informed plaintiff prior to accident that he was tired - whether voluntary assumption of risk - whether contributory negligence - no new matter of principle.

Damages - nature of medical evidence - difficulty in accurately assessing plaintiff's medical condition - minor physical injuries precipitating emotional and psychological condition - no new matter of principle.

Damages - difficulty in measuring pain and suffering due to hysterical element - no new matter of principle.

HEARING

CANBERRA
17:12:1987

ORDER

There be judgment for the plaintiff in the sum of $170,669.24.

The defendant pay the plaintiff's costs.

On hearing the parties further it was ordered that interest be awarded on part of the past loss of earning capacity, that is on $48,188.94 at fourteen percent reduced by half. The figure of $48,188.94 represented the difference between the assessed past loss of earning capacity of $58,412.04 and the sum of $10,223.10 received by the plaintiff as social security payments. Interest on this figure amounted to $16,182.20 which was added to the proposed figure for damages giving the plaintiff a total judgment sum of $170,669.24

DECISION

The plaintiff suffered injury on Sunday, 28 October 1979 in the early hours of the morning. He was travelling as a passenger in a station sedan being driven by the defendant on the Kings Highway in a westerly direction some distance east of Bungendore in New South Wales. The plaintiff was travelling in the front seat and was wearing a seatbelt. The vehicle overturned when the defendant failed to negotiate a right-hand bend. The vehicle rolled over and the defendant assisted the plaintiff to make his escape from the hatch door at the rear of the vehicle.

2. The plaintiff had been collected by the defendant from his home on the evening of the previous day. It does not appear that there was any prior arrangement between the parties. The defendant asked the plaintiff to accompany him to look at a eucalyptus oil project operated by his father somewhere near Braidwood and about a hundred and twenty kilometres from the plaintiff's home at Queanbeyan. After inspecting the project the defendant asked the plaintiff if he would accompany him for the purpose of spot-light shooting. The plaintiff agreed to this. After the shooting expedition, in which a third man apparently played a part, the defendant started to drive back to Queanbeyan. At some stage of the journey the defendant remarked that he was tired. He did not inform the plaintiff that he had had no sleep or virtually no sleep the night before. The plaintiff did not protest at the defendant continuing to drive the car whilst tired and what was almost inevitable happened. When the police arrived after the accident, the defendant admitted that he must have fallen asleep and he admitted as much in his evidence to the court.

3. It was claimed on behalf of the defendant, who was clearly guilty of negligence, that the plaintiff consented to the risk of the sort of injury that he suffered and also that the plaintiff was guilty of contributory negligence. To accept a lift from a driver in the early hours of the morning aware that the driver has not had any sleep during the immediate preceding hours was not suggested as in itself constituting either of the defences, rather it was suggested that once the plaintiff was told by the defendant during the journey that the defendant was sleepy, he should have instructed the defendant to stop the car and get some sleep. Whilst this would of course have been a counsel of perfection, the fact of the matter is that the plaintiff had no control at all over the defendant. He was there as a guest. There is no evidence one way or the other as to whether the plaintiff was awake or asleep, but the evidence of the defendant that the third man was asleep in the backseat is suggestive that the plaintiff was awake. There is no evidence that the defendant stopped the vehicle at any relevant time beforehand which would have enabled the plaintiff to abandon the enterprise and seek to get back to Queanbeyan some other way, which would have been difficult for him at the least. In my view the plaintiff did not consent to the risk of being injured in the way in which the accident occurred nor was he guilty of a failure to take reasonable care for his own safety, and even if he was, I find that it made no contribution to the accident which occurred.

4. I turn to damages. This is a difficult question. The plaintiff's credit as a witness both in Court and in his accounts to the many doctors who have seen him over the years is the major difficulty. I cannot recall having seen a person in a civil case behave in such a bizarre fashion in the courtroom. Such conduct has proved a difficult question also for the doctors. The medical assessment of his case is complicated by whether the plaintiff's symptoms can be accepted and indeed to some extent whether those seeking to assess him feel sympathy for him or otherwise.

5. The plaintiff in his evidence claimed to have no memory at all of the collision, and his memory of events leading up to it was sketchy, to put it mildly. His failure to recollect these events, however, may be connected with what he claims to be an overall problem with memory which he has had since the accident. The defendant said that when he assisted the plaintiff from the vehicle, the plaintiff's leg appeared to be badly cut below the knee, that the plaintiff was "going into shock" and that he had difficulty breathing. Upon admission to the Queanbeyan District Hospital the plaintiff was said to be alert on arrival and was found to have sustained a laceration to the left kneecap and abrasions on the forehead. He complained of tenderness across the chest. He remained in the hospital until 31 October. During his admission he was treated by Dr Roach, a local general practitioner. Dr Roach sutured the laceration to the left knee. X-rays taken of the skull, chest and ribs were found to be normal. He was treated with Valium and pain-killing medication. According to the hospital records he was "ambulating" and able to take himself to the toilet as required. It was noted, however, that he felt dizzy when on his feet. The plaintiff himself claimed that he was confined to a wheelchair whilst in the hospital and that when he first regained consciousness he was "screaming with pain". His account is not consistent with the medical records and was not confirmed by any of the witnesses, including his wife. Dr Roach removed the sutures on 5 November 1979. He did not see the plaintiff again until 28 July 1980. In the meantime the plaintiff had recommenced his work as a butcher in a smallgoods manufacturing firm in Queanbeyan. The records of the business were in evidence and show that he was absent from work "one week sick" for the week preceding 16 November 1979. He continued to receive pay in the ordinary way until the end of November, after which, although he is recorded as having worked and been paid, his signature is not received in the ordinary way until 4 July 1980. The plaintiff's own evidence was that he was off work for a few weeks immediately following the accident and he swore answers to interrogatories to that effect. I am not prepared to find that he lost more then one week from work immediately after the accident. According to the plaintiff's employers, Mr. and Mrs. Semecky, there was a change in the plaintiff's behaviour immediately after the injury. The evidence of the plaintiff's wife was similar. She said that he did not complain to her of any localised pain but there was an immediate change and the plaintiff became nervous and angry and was not his prior, normal, happy self. Evidence to the contrary was given by the defendant, who was a workmate, and I shall refer to this later.

6. In any event, the plaintiff did not seek medical attention again until 28 July 1980. (References in an unsubstantiated schedule of expenses to "2.1.80" and "20.2.80" are, I think, intended to refer to 1981.) On that occasion he complained to Dr Roach of an irritable scar over the left patella and aches in the legs and shoulders. He made similar complaints on 6 August 1980, with the complaint of cramp in the left leg said to be moving up the left side of the body into the neck. He was very excited and talkative and demanding to see a specialist and blaming all his troubles on the accident. On 10 September 1980 he made similar complaints and behaved in similar fashion. Dr Roach was unable to persuade him that the physical injuries were essentially mild. The plaintiff seemed concerned over the possible loss of his driving licence. By that stage Dr Roach felt that the plaintiff had developed an acute nervous agitation which "almost amounted to mild psycho-neurosis" which was "presumably . . . . . mostly if not entirely due to the accident".

7. The plaintiff was clearly dissatisfied with the treatment received from Dr Roach and a few days later on 12 September 1980 he presented to another Queanbeyan general practitioner, Dr Carter, with similar complaints. Dr Carter has continued to see the plaintiff ever since once every month or two, unable to get to "first base" and acting as "mainly a repeat pill prescriber" when the plaintiff returns from visiting other doctors.

8. On 25 September 1980 the plaintiff was referred to Dr Long, a consultant physician. By that time the plaintiff's complaints had multiplied and intensified. He told Dr Long that he had several attacks per day induced by stretching or bending with cramping in the left knee extending up his body into the back of his head which might cause him to fall. He complained also of headaches about four times a week at the back of the head lasting for half a day. Examination failed to disclose any physical cause for the symptoms and the plaintiff's behaviour in the surgery was such that the doctor felt he was malingering.

9. On 5 February 1981 the plaintiff was referred to Dr Truman, a psychiatrist. Dr Truman has continued to see the plaintiff regularly in the meantime, on a total of over fifty occasions. The plaintiff stated that Dr Truman is "like my father", which is in marked contrast to the antipathy he feels towards most of the other doctors. The initial history given to Dr Truman was of amnesia for three or four days following the accident, little recollection of the accident itself, and injuries to the neck, head, legs, left shoulder and bruising to the chest with pain thenceforth to the back of the head, left shoulder and legs. The plaintiff complained of emotional problems, irritability, broken sleep and the like and a tendency to tearfulness. At that stage the plaintiff was working only part-time. His condition appeared sufficiently serious for Dr Truman to have him admitted to the Calvary Hospital where a number of doctors gave attention to his case. The conclusions of the "case conference" of doctors who considered the plaintiff's condition before his discharge, a conclusion with which Dr Truman agreed, was that he was suffering from a severe emotional disorder brought about by the trauma of the motor vehicle accident and presenting as a mixed anxiety depressive hypochondriacal neurosis. In reaching this conclusion the doctors took into account the opinion of Dr Long who, as I have stated, thought that the plaintiff was malingering and also the matters set out in a welfare report which is in evidence. The defendant sought to rely upon the latter to the extent that it was based on a number of misapprehensions and was contrary to the evidence given by the plaintiff and accordingly that if it played any part in the assessment of the doctors then that assessment was of little assistance. However, I think that the welfare report does not really bear much upon the case. In the first instance it appears to be based upon statements to the welfare officer by the plaintiff's wife and not by the plaintiff himself, and Mrs. Samoty, who gave evidence, later denied that she had said the things to the welfare officer which the welfare report suggests she did say. Insofar as the welfare officer was not called, I place little weight on it. I bear in mind at the same time, however, the reservations I have about Mrs. Samoty's evidence.

10. The plaintiff's condition does not appear to have changed essentially since the middle of 1981, although there appears to have been some changes in intensity and emphasis. In June 1982 Dr Truman placed him on a new type of anti-depressant medication which had a significant improvement for a while when, according to the plaintiff, his nerves "are not biting so much", and "the dreadful sensation of pressure" had quietened and his friends, whoever they were, had noticed that he was happier and laughing more. However, by the end of the year the change in medication prescribed by Dr Truman appeared not to be helping although the plaintiff was reluctant to cease taking it.

11. By about March 1983 the plaintiff ceased work altogether. The significance of what was happening at that time I shall discuss in a moment. In October 1984 Dr Truman noted that there was a flare-up in his distress and he was once again admitted to the Calvary Hospital, where he remained for about a week. Although there were no psychotic symptoms, he spoke frequently of suicide. He turned up unannounced at the Calvary Hospital on 16 August 1985 where Dr Truman happened to be at the time, in a very agitated paranoid state apparently precipitated by being required to go to Sydney to see a number of doctors, presumably for the defendant. These had given him the impression that they were implying that he was a malingerer.

12. In the meantime the plaintiff had been referred by his solicitors to Dr Ferguson, who first saw him on 7 December 1982. Dr Ferguson said that his area of expertise is in advising on the "medico-legal" aspects of claims for personal injuries. His letterhead bears the title "Medico-Legal Assessor". He said that as it happens most of his advice is given to plaintiffs rather than defendants. Whilst it may be true that medico-legal advising is an area of expertise, it is not, in my view, a specialist area of medicine. Dr Ferguson's evidence suffers from that limitation. Morever, it appears that soon after the plaintiff was referred to him, Dr Ferguson took over to a substantial extent the management of the plaintiff's treatment. In fact there appeared to be two streams of medical treatment from then on. On the one hand there was that given by Dr Carter in consultation with Dr Truman, and on the other hand, that given through Dr Ferguson and the several other practitioners to whom he referred the plaintiff. During the course of addresses, counsel for the plaintiff made reference to the plaintiff having become a victim of "the system". Whilst it is not clear exactly what was meant by this, it does have some particular relevance to the course of events soon after the plaintiff came under the attention of Dr Ferguson.

13. Dr Ferguson received a very full account from the plaintiff of all his troubles, including a detailed account of the events leading up to the accident. Dr Ferguson's assessment of the plaintiff and condition is clearly based upon a total acceptance of what he was told by the plaintiff in this regard and what he has been told on the many subsequent occasions. In some respects Dr Ferguson has acted as the plaintiff's advocate. He formed the firm view on the first occasion, from which he has not shifted, that the plaintiff in no way exaggerates his symptoms. Dr Ferguson also arranged for x-rays to be taken immediately after the first visit including the cervical, dorsal and lumbo-sacral spine upon which he apparently placed some significance coming to the conclusion that the plaintiff had suffered from subluxation and instability of the whole of the spine with a compression fracture of the L1 vertebra and L5-S1 spinal disc injury. The significance of the x-rays was not explained to my satisfaction, and the conclusion is unsupported by the evidence of any of the other doctors, and I reject it. Dr Ferguson also concluded that the plaintiff had suffered from brain damage, the effects of which will be permanent. He considered that the results of brain damage were of considerable significance with intellectual, physical and emotional consequences. Dr Ferguson suggested psychometric testing, presumably to confirm his diagnosis of brain damage. I shall refer to this in a moment. Dr Ferguson also concluded that the plaintiff had suffered from "chronic traumatic labyrinthitis". Again, insofar as this is not confirmed by any other medical evidence, I reject the conclusion. Dr Ferguson also thought that the plaintiff suffered from traumatic arthritis of the right knee, a conclusion unsupported by any of the other medical evidence and one which I reject.

14. Dr Ferguson referred the plaintiff to a chiropractor and over the ensuing period the plaintiff had had over sixty sessions of treatment of this type. Dr Ferguson also arranged for the plaintiff to be seen by Dr Vance with regard to a blockage of the septum of the nose. Dr Ferguson clearly acted upon his conclusion that the condition in the nose followed the accident, and Dr Vance acted upon what he was told by Dr Ferguson. There is no evidence of injury to the nose in the accident and the evidence of the plaintiff does not convince me that he suffered from any nasal condition at any time sufficiently proximate to the collision, I am not satisfied that the condition in the nose and the operative treatment for it was related to the accident.

15. Dr Ferguson also added to the plaintiff's medication which appears to have been considerably varied in any event.

16. An event which, in my view, turns out to be of some significance was the spinal manipulation carried out by Dr Ferguson under general anaesthetic on 28 April 1983. Immediately after the manipulation the plaintiff, according to Dr Ferguson, suffered from a temporary increase in his neck and back pain which was a direct result of the manipulation. I accept that this is likely to have been the case. The significance of this is considerable, however, because, according to Dr Ferguson, the increase in neck and back pain caused the plaintiff to resign from his part-time work. He has never resumed work. It was Dr Ferguson who certified the plaintiff as unfit to work at that stage. It is also of significance that the operation to the nose recommended by Dr Ferguson was carried out by Dr Vance on 9 June 1983, soon after the plaintiff had been certified as unfit to work by Dr Ferguson. I note also that on 15 June 1983 Dr Carter, at the request of Dr Ferguson, injected Depo-Medrol into the point of the plaintiff's right elbow. The opinion of Dr Ferguson by September 1983 was that the plaintiff's treatment had been taken about as far as it could, with what he considered to be reasonable results, but that the plaintiff's emotional condition had not changed. It is obvious to my mind that by that time the plaintiff had become convinced that all his troubles had been confirmed by the doctors, that he was not going to get any better, and that everything was due to the accident. This is not so surprising given his personality and what had happened to him in the meantime. Dr Ferguson expressed the view, which I expect he communicated to the plaintiff, that the plaintiff was going to need medication for the rest of his life and frequent manipulative treatment. I should also mention that from 18 to 25 June 1984 the plaintiff spent a period in Calvary Hospital but this appears to have been for the purpose of a gall bladder operation unassociated with the accident. In October 1984, according to Dr Ferguson, the plaintiff was expressing thoughts of suicide and he arranged for the plaintiff to be admitted to Calvary hospital. This appears to be the same admission referred to by Dr Truman and the plaintiff was confined to the hospital from 11 to 17 October 1984.

17. From August 1985 to 1986 the plaintiff visited Dr Scott-Findlay for treatment of a condition which was diagnosed as a probable hiatus hernia. It is not clear that an operation was carried out and in any event the condition is not, in my view, due to the injury. The plaintiff in his evidence spoke of a hernia but it is not clear whether he was referring to the hiatus hernia or an inguinal hernia. In any event I am not satisfied that if the plaintiff had a hernia of any type that it was due to his accident. Dr Scott-Findlay was reluctant to operate because of the plaintiff's obesity.

18. In a report of 27 February 1986, Dr Ferguson stated that he had formed the conclusion that the plaintiff was suffering from an epileptic condition, and as a result the plaintiff was placed on a further type of medication to control it. Consideration had been given at a previous stage to possible epilepsy, but electrical tests did not support the hypothesis. However, in February 1986 Dr Ferguson made the diagnosis on the information supplied by the plaintiff's then nine year old son that he had seen his father go through an episode which Dr Ferguson thought was of a grand mal type. There is some evidence from Mrs. Samoty of epileptic type behaviour but in my view that evidence is unreliable. Insofar as the diagnosis of epilepsy is not supported by any other medical evidence (apart from that of Dr Cassar), and indeed as the other medical evidence tends to contradict it, I do not accept it.

19. The plaintiff has been seen by a large number of doctors for the purpose of considering his claim for damages, both on his behalf and on behalf of the defendant. It is not necessary to refer to the evidence of all those doctors. However, I should state that as is usually the case, the doctors are dependent upon the history given to them, whether from the patient or supplied from other sources, and of the complaints and presentation by the patient himself. Many of the doctors tendering advice in the present case have done so on an accepted history that the plaintiff suffered loss of consciousness over a period of some days immediately following his injury. This, however, is not supported by the objective evidence. The Queanbeyan Hospital records, which I have no reason to doubt are correct, show that the plaintiff was conscious, up and about on the day of his admission and continued to be so. That evidence is not contradicted by the evidence of Mrs. Samoty or that of the treating doctor, Dr Roach.

20. The present case also presents to an extraordinary degree a problem of credibility. The conclusions of some of the doctors are based upon a total acceptance of his complaints. The conclusions of others are based on a rejection of what he has had to say or at least considerable scepticism, and that is based partly on the bizarre presentation of the plaintiff and of his considerable lack of co-operation. On the one hand, for instance, Dr Cassar, a consultant physician, expresses feelings of such strong sympathy to the plaintiff in his plight that it over-shadows his conclusions. In particular, in my view, it throws doubt over his conclusion that the plaintiff is suffering from brain damage. I have already said that I reject Dr Ferguson's diagnosis to that extent, there is no psychometric evidence to support it, and accordingly I also reject Dr Cassar's diagnosis of brain damage.

21. On the other hand, the evidence of Dr Wendy Roberts, a consultant clinical psychologist, who saw the plaintiff on behalf of the defendant is, in my view, so affected by antipathy towards the plaintiff that I am unable to accept her conclusion that the tests she administered to the plaintiff lead to the conclusion that he is a malingerer.

22. I do not intend to recite the rest of the medical evidence. There are passages, however, in some of the reports and in the evidence which I think throw useful light on some aspects of the case. Dr Corry, a consultant in rehabilitation medicine, has a useful summary of the plaintiff's complaints when the plaintiff saw him on 14 March 1985, and which are not essentially different from the effect of what the plaintiff said in the witness box. His summary is as follows:

"Present Complaints:

He has multiple continuing complaints. He
complains of pain in the right side of his head
over the temple region, across the front of his
chest and in the muscles of both his arms. He
develops bad cramping pain in his left leg. His
stomach continues to be upset and he becomes giddy
with any activity. He has a bad pain inside of his
head and pain in his face that makes him feel
shaky. He feels his bones in his spine are
slipping in and out. He complains that his sleep
is poor and he usually wakes at three or four
o'clock in the morning.

He says that he is extremely nervous and is
scared to be alone in his home. He worries that
the x-rays of his head which are in the hospital
and which will not be released to him may show that
he has cancer. He states that he does not stay at
home but usually takes a blanket and hides in the
bush. He describes feelings of wanting to attack
people who are observing him."

23. I should interpolate here that the plaintiff in his evidence was very voluble on the subject of persons whom he thought were spying on him in the interests of the defendant. It is, of course, not impossible that investigators have from time to time kept him or his house under observation and I do not think that his feelings or opinions on this subject are indicative of extreme paranoia.

24. Dr Chandran, a consultant neurosurgeon, formed the view that the plaintiff was suffering from some sort of neurological deficit, but that opinion is based largely on a history which, as I have already said, is not borne out by the evidence. However, Dr Chandran makes the perceptive remark that "the organic illness has been reinforced by various people that he has seen and nobody has of course the courage to tell Mr. Samoty that there is a large psychiatric component". He adds, "Whoever says that to him is going to face his wrath." Whilst the remark is perhaps a little unfair to Dr Carter and Dr Truman, it is clear in my view that one of the difficulties about medical management of the plaintiff's case from the point of view of those doctors is that it is of the very nature of the plaintiff's condition that he is unable to achieve any degree of self-insight and to suggest to him that he is psychiatrically disturbed is to aggravate the situation.

25. In a report from Dr Truman of 4 November 1985 there is a sentence which, I think, with one qualification, accurately sums up the situation:

"There was a tendency to use a lot of hyperbole
which I do not think was exaggeration but just his
attempt to emphasise how much distress he was
suffering."

26. If the word "malingering" replaces the word "exaggeration", I think that this is accurate. There is no doubt in my mind that the plaintiff does in fact exaggerate, and grossly exaggerates, but this is part of the ongoing problem. The matter was put another way by Dr Truman in some notes appearing in the Calvary Hospital records of 13 April 1981 when he said that the question was not so much one of malingering or manipulation but that of a hysterical and hypochondriacal reaction.

27. Mr. Petroni, a clinical psychologist, saw the plaintiff on reference from his solicitors, after a recommendation by Dr Ferguson. Whilst there is little value in the results of the tests that were carried out because of internal inconsistencies, I think that the observations of Mr. Petroni are very accurate. At least they coincide with my own conclusions. Mr. Petroni says:

"He is probably decompensating with self-pity and
social dependence sustaining hysterical features of
his personality on the one hand and bouts of
hostility and attendant paranoid features on the
other.

It would seem that the intellectual cognitive/
memory/problem is proportional to the
psychological/apperception
deficit and neurotic component of
his personality."

28. As I have already remarked, the medical assessments depend to a considerable extent on assumptions. Whether or not the assumptions upon which the doctors act are made out by the evidence is another matter. There was a considerable amount of lay evidence before me about observation of the plaintiff both before and after injury. Both the plaintiff's wife and his employers, Mr. and Mrs. Semecky, stated that there was a marked change in the plaintiff's behaviour immediately or almost immediately after his accident. The plaintiff's wife was very difficult to assess as a witness and I think that to a large extent she was protective of the plaintiff to whom she has shown commendable and remarkable support and sympathy. Mr. and Mrs. Semecky, I am perfectly certain, gave truthful evidence to the best of their ability, but they are somewhat advanced in years and I doubt whether they have a precise knowledge at this stage of when they started to make their observations of changed behaviour on the part of the plaintiff. I say this in the light of the evidence given by the defendant himself. The plaintiff was a somewhat unusual person even before his accident. Features of his behaviour which had become pronounced since the accident were present to some extent even beforehand, according to the defendant. For instance, the plaintiff used to bring toy cars to work with him and his demeanour was somewhat unusual, frequently poking out his tongue and the like. He was also an easy target for practical jokes and would become irritable easily. All these features, as I say, have become very marked since the accident, and I do not accept the assessment of the defendant that the degree of change has been only slight. I also note that in the hospital records Dr Roach observed on 25 March 1981 that even before the accident the plaintiff tended to exaggerate his symptoms and pain when he visited the doctor as his general practitioner.

29. In the end my conclusions have to be somewhat tentative but the plaintiff's case has to be proved only on the balance of probabilities. I find that the plaintiff's minor physical injuries occurring as they did to a person with tendency towards hypochondriacal irritability, suspiciousness and eccentricity precipitated an emotional and psychological condition which has aggravated all those characteristics. There is some doubt about the continuity of symptoms and the onset of bizarre behaviour between the time he returned to work which was only, on my finding, a week after the injury, and till some time shortly before the plaintiff returned to see Dr Roach in July 1980. I think that thereafter the plaintiff's condition continued to deteriorate, necessitating several weeks in hospital in the middle of 1981 which was of little effect. The plaintiff was, however, able to work full-time up till about the beginning of July 1981 after which he worked part-time only. His working career came to an end, as I have said, when he went off work in March 1983 and subsequently was certified unfit by Dr Ferguson in July 1983 following the increased symptoms brought about by the manipulation performed by that doctor. The plaintiff reasonable submitted to such treatment and indeed to the variety of treatments to which he was subjected thereafter. That treatment together with investigations into the case continued to maintain if not aggravate his condition, so that by 1985 his condition appeared to be bordering on the psychotic. I think he probably became unemployable in July 1983, and certainly so from 1985. I think he will continue to be unemployable for some time into the future, but the diagnosis and prognosis of his condition is so beset with difficulties and hypotheses that it is impossible to be confident. However, I am not satisfied on the balance of probabilities that if he continues to be unemployable after a lapse of two years or so, then his unemployability can be materially related to the accident. I think that there must have been a good chance that he could have become like he is without the accident. I am of the view that I have to allow for the contingency that his symptoms will continue much as they are beyond that period and to allow for the finding that if they do there will be some part of the further period at least in which the accident plays a part but a diminishing part. Some of the doctors have offered the view, and the firm view, that the only rehabilitation that can be offered is a sum of damages and a sum of damages he is about to obtain. I think it will be a relief to him that he does not have to continue to see doctors for the purpose of his case and that he does not have to worry about insurance investigators keeping a watch on him.

30. As I am of the view that the plaintiff's condition has for some time been dominated by an hysterical element, it is very difficult to measure pain and suffering. I agree with Dr Truman that the plaintiff's attitude is not one so much of malingering and manipulating but one of hyperbole, that is to say, he exaggerates and exaggerates consciously but that is in order to draw attention to what he sees as the seriousness of his case. It is to be observed that over the years, according to the medical reports, there have been occasions when the plaintiff has not been as morose and gloomy as at others and there have been occasions when his presentation of pain and disability have been less than at other times. The records of Calvary Hospital indicate that when he has been treated there from time to time he has been able to participate in group activities with apparent pleasure. On one occasion at least an organ was provided for him and he was able to play it and derive pleasure from that. According to his wife, he still attends mass each Sunday. He was obviously anxious through the court hearing to draw my attention to him and his difficulties, but I am not convinced that he would behave in that fashion all the time unless he felt that he was being observed. I do not overlook the post traumatic scar on his knee about 10 cms in length.

31. I noticed that the plaintiff became particularly emotional during the hearing when trying to speak of his relationship with his young son, which was in great contrast to the disparaging attitude displayed to his wife. In any event, he obviously misses what he regards as a normal relationship with the child if he had not been injured. He is well over-weight and I doubt whether he would have continued playing any form of sport if he had not been injured. In any event, the evidence about his interest in sporting activities beforehand is not convincing. I think that he will continue to be unable to drive a car indefinitely. However, he has been able to get himself up to Sydney and back for the purpose of medical examinations and according to the medical evidence there is no reason why he should not continue to manage his own affairs. Doing the best I can in all the circumstances I think an award of $25,000 is adequate for pain and suffering to which I apportion the sum of $15,000 for the past. For past loss of earning capacity I award his loss of wages for the first week lost from work, together with one half of his earning capacity from 3 July 1981 to 3 March 1983. Thereafter I award the plaintiff full loss of earning capacity until the present time. It is agreed that assessed in that way the total for past loss of earning capacity is $58,412.04. I award a further $23,000 for the next two years on an agreed weekly loss of $233.75 net together with a lump sum of $20,000 for the period thereafter. I award out-of-pocket expenses for medical, hospital and pharmaceutical expenses in the past. That is a rough estimate of $16,500 which is based upon the agreed figure for all past out-of-pocket expenses, but I exclude from my award any sum referrable to the operation to the nose or to the gall bladder operation or to any treatment for hiatus hernia and I restrict the amount awarded for Dr Ferguson and for physiotherapy to one half of that claimed. I expect that in the future the plaintiff will continue to see a doctor once a month or so for about two years and less thereafter for reasons associated with his injury. I award the sum of $1,000 for future medical expenses. For future pharmaceutical expenses I expect that the plaintiff will continue to need medication. There is evidence that he is receiving medication which would cost about $75 a month if he was not on a pension. I am required to leave pension considerations out of account. I would award $2,000 for future medication. I award interest on the past component of damages for pain and suffering at fourteen percent reduced by half, which gives a figure of $8,575.00. I was told that the plaintiff has been receiving an invalid pension and unless the parties wish to be heard on the matter, I will not award interest on the past loss of earning capacity. In summary the award is as follows:

Pain and suffering $25,000.00
Past loss of earning capacity $58,412.04
Future loss of earning capacity $43,000.00
Out-of-pocket expenses $16,500.00
Future medical expenses $ 1,000.00
Future medication $ 2,000.00
Interest $ 8,575.00
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Total: $154,487.04
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32. On that basis the plaintiff would be entitled to judgment for $154,487.04. Again, unless the parties wish to be heard, I propose to order the defendant to pay the plaintiff's costs.