Anthony Mirek Matuska v Rahmat Ali and Mazar Nasir Buksh [1988] ACTSC 47 (9 August 1988)

SUPREME COURT OF THE ACT

ANTHONY MIREK MATUSKA v. RAHMAT ALI and MAZAR NASIR BUKSH
S.C. No. 1546 of 1983
Damages - Evidence

COURT

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

CATCHWORDS

Damages - personal injuries - assessment of damages - plaintiff injured back in motor vehicle collision - whether additional anxiety and depression caused by injury - method of assessment of loss of earning capacity where plaintiff has received unemployment benefit in the past and may do so in the future.

Evidence - question of credit of plaintiff as witness.

Evans v. Muller [1983] HCA 16; (1983) 151 CLR 117

Tuncel v. Renown Plate Co. Pty. Ltd. (1976) VR 501

Bertram v. Kapodistrias (1984) V.R. 619

Sarkis v. Rowe (unreported, Supreme Court of New South Wales, Campbell J., 7 December 1987)

Canny v. John Pfeiffer Pty. Ltd. (1979) 28 ACTR 11

Morley v. Murray and Commonwealth of Australia (1980) 31 ACTR 25

HEARING

CANBERRA
9:8:1988

ORDER

By consent the out-of-pocket figure be increased to $22,836.29.

There be judgment for the plaintiff in the sum of $149,486.29.

The defendant have credit for $4,892.20.

On page 20 line 3 of the judgment the figure "1972" be amended to "1982".

The defendants pay the plaintiff's costs.

DECISION

This is an action for damages for personal injuries arising out of a motor vehicle collision. Liability was admitted at the hearing and the case proceeds as an assessment of damages only.

2. A central difficulty in the case is the credit of the plaintiff as a witness, which was strongly challenged. This difficulty extends to an evaluation of the complaints made by the plaintiff to the doctors over a period of years. The general factual background is not really in dispute, but the plaintiff's medical history needs close attention.

3. The plaintiff was aged 26 years at the date of the collision on 30 April 1982. He is now aged 32 years. He stated in evidence that he has no memory of the collision. However, this is in conflict with what he said to at least one of the doctors, Dr Smith, to whom he gave a rather vivid account on 13 October 1987 of seeing the other car approaching and jamming on his brakes. He subsequently regained consciousness in Calvary Hospital some hours afterwards. According to Dr David McNicol, an orthopaedic surgeon, who treated the plaintiff during this first admission to hospital, he was found to have the following injuries:

1. A compound fracture of the right olecranon, which was treated by

open reduction and internal fixation using a tension band.

2. A penetrating injury to the right forearm caused by shattering

glass.

3. Head injury with right orbital laceration and bruising.

4. Spinal injury.

4. Whether and to what extent there was a spinal injury is a matter of contention, to which I will return. The plaintiff's right arm was kept in an elevated position in bandages until he was placed upon a course of exercise prior to his discharge on 8 May 1982. According to the plaintiff, whilst he was in hospital he suffered from "aches and pains all over" and his right eye was sutured. He left hospital to go to his girlfriend's place where he fell out of bed the following day. He was re-admitted to Calvary Hospital and Dr McNicol reduced the fracture once again under anaesthetic. He remained in hospital from 12 May to 19 May 1982 and was discharged again to his girlfriend's home. He said that his back was "hurting all that time". The plaintiff said that he saw Dr Ong, his general practitioner, for the first time before he was re-admitted to Calvary Hospital. This does not accord with the doctor's evidence, and although the doctor's records have been shown to be wanting in some respects, I find that they establish that the plaintiff first consulted Dr Ong on 25 May 1982. According to Dr Ong's report of 5 March 1984, which I accept on this issue, the plaintiff's main reason for the consultation was to obtain analgesics to reduce pain in his right elbow. There were subsequent consultations on 11 June and 10 December 1982 for the same purpose. Despite what Dr Ong states in his report, the cross-examination of Dr Ong established to my satisfaction that there was no complaint of back injury in the first consultation nor was there any subsequent complaint about back symptoms to Dr Ong until 29 December 1982. On 7 July 1982 Dr McNicol found the plaintiff to lack ten degrees of elbow extension and he was advised to come back in three months time with an x-ray and for consideration of removal of wires.

5. In the meantime the plaintiff had abandoned his work as an installer of slow-combustion stoves. He said in his evidence that he was not able to do that work and that "it would have killed me". At the beginning of August 1982 the plaintiff took employment as a bartender at the Perisher Valley Hotel. A few weeks later there was an incident when he was picking up a tray of glasses, when he felt his arm crack. He has told several doctors since then that there was a refracture of the elbow. I doubt whether this is so. He did not seek any treatment. Although he had difficulty using his right arm for the purpose of picking up glasses, he was able to continue duties in the bottle shop. He kept his arm stiff in a bandage applied by a friend. He continued in that occupation until 29 August 1982 when he returned to Canberra.

6. The plaintiff attended Calvary Hospital on 6 October 1982 where the fracture was found to be united. He was re-admitted to Calvary Hospital overnight on 7 December 1982 for the removal of bands and wires.

7. The first note of back complaint on the part of Dr Ong is on 29 December 1982. Thenceforth the right elbow provided little problem. The first note Dr McNicol had of a complaint of back pain was on 13 April 1983. A brace was prescribed. On clinical examination Dr McNicol found marked restriction of forward flexion and a pronounced pattern of spinal instability. X-rays were "dramatic" showing what Dr McNicol then considered to be a fracture of a facet joint of L5 and instability at L4/5 with disc space narrowing.

8. In the middle of 1983 the plaintiff's girlfriend was having a birthday and he decided to go to Adelaide for the purpose and to stay there for a few months. He says that he looked for work there but had no luck. As he intended to return to Canberra in any event after a few months it is unlikely that he would have obtained work for any extended period even if he had not been injured. Upon his return to Canberra he had attention from a chiropractor. He said that he refused an offer of work in a bar because Dr McNicol had advised him to submit to surgical fusion and insertion of metal rods into the spine. For that purpose the plaintiff was admitted to Calvary Hospital again on 9 November 1983. At the last moment he discharged himself from hospital. The reason he gave to the hospital was that his back pain had resolved. In his evidence and to many of the doctors the plaintiff explained his declining the operation as based on a fear of failure of the operation and also on a general distrust of the medical profession. Dr McNicol had made it clear to the plaintiff that as he had disrupted the operating schedule he was no longer acceptable as a patient. On 3 October 1984 he once again consulted Dr Ong and within days a Dr Neubauer, a family doctor. That visit is not referred to in the evidence of Dr Ong nor, as far as I can see, in his records and there is nothing from Dr Neubauer.

9. In the first half of 1984 the plaintiff said he had made several visits to a chiropractor by the name of Mark Ryan. I accept that he saw the chiropractor on a number of occasions but there is no clear evidence as to the dates. The plaintiff said that during this period he was looking for work unsuccessfully and also attending several courses on computing, creative writing and audio visual work. He was vague as to details.

10. On 26 May 1984 the pain in the back was so great that the plaintiff attended the out-patients department at Woden Valley Hospital in order to obtain pain- killers. These were in fact prescribed. Nevertheless, some time in the middle of 1984 he commenced work as a taxi driver and he continued in that occupation until 1 October 1984. He said that he ceased driving because of the effect it had on his back and on his nerves. The length of time he was working as a taxi driver and the number of hours worked is not clear. According to his evidence, it was a period of a couple of months. According to Dr Truman, whom he saw in October/November 1984, it was for several weeks only. He told Dr Corry that it was for a month. Dr Smith appears to have thought that the plaintiff had driven taxis for about twelve months (see p 8 of his report of 26.10.87), but I think Dr Smith has probably confused this with the statement by the plaintiff that he worked twelve hour shifts while driving a taxi during 1984 (see p 4 of the same report).

11. In any event I accept that the plaintiff's back condition troubled him during the period in which he drove taxis in mid-1984. I conclude that his back condition was exacerbated by that activity, and that his psychological condition deteriorated rapidly at the same time.

12. The plaintiff said that he sought to be admitted to the psychiatric ward at Woden Valley Hospital on 12 October 1984, on the advice of Dr Neubauer. He was not admitted but became a day patient at the psychiatric ward at the Calvary Hospital and on 18 October 1984 was admitted for the first time to the psychiatric ward of that hospital under the care of Dr Truman. The hospital records also contain a psychiatric assessment by a resident psychiatrist, Dr Vrajlal. It is recorded that the plaintiff's reason for admission was that "life was not worth living", that his life was "in a mess" and that he was unable to attend to the ordinary affairs of life because of back pain. He complained of increasing low back pain with occasional pins and needles in the legs. He disclosed that his only brother had died about three months previously and that there was a question as to whether the cause of death was drug use. The plaintiff responded quickly to medication for his depression and his back pain. The plaintiff was observed to be physically active, walking rapidly about the ward and even bouncing on the trampoline. Dr Truman said that he had assumed that Dr Ong had been continuing anti-depressant medication, an assumption which may have been justified but which is not borne out by the evidence in the case. Dr Truman also expressed the opinion in his report of 23 April 1985 that there was a discrepancy between the activity shown by the plaintiff whilst in hospital and the extent of disability and symptoms described in the reports of Dr McNicol and Dr Ong. In his evidence Dr Truman pointed out that there had been no mention by the plaintiff during his stay in hospital in October/November 1984 of morbid thoughts whilst driving a taxi. The question, therefore, arises as to whether the plaintiff's evidence on this aspect is the subject of invention or imagination.

13. There is a lengthy document in the Calvary Hospital records apparently prepared by Paul Bibo, who I assume to be a psychiatrist. The document presents, in my view, a very useful and accurate picture of the plaintiff as at November 1984. It suggests that the plaintiff's psychiatric problems stem from an unsatisfactory de facto relationship and the disapproval with which the plaintiff regarded the mother's care and attention of their then two and a half year old daughter. The stress of the relationship had led to physical abuse of the de facto wife by the plaintiff. The document also draws attention to the death of the plaintiff's brother three months before, an event which the plaintiff was very reluctant to discuss and to the plaintiff's sporadic work history. It also states as follows:

"Mr. T also suffers chronic back pain caused by a M.V.A. three
years ago in which he almost lost his life. The back pain may
also have a component of inappropriate use of physical symptoms
attached to it."

14. The document noted the plaintiff's improvement whilst under medication and recommended ongoing psychiatric treatment and welfare counselling upon his discharge.

15. Upon discharge from Calvary Hospital in November 1984 the plaintiff applied for a job involving design and art work. His application appears to have been unsuccessful. He said that he attended Dr Ong on 17 December 1984. That was not confirmed by Dr Ong, and in any event the plaintiff said that it was for the purpose of treatment of boils.

16. On 18 December 1984 the plaintiff was examined by Dr John Corry, a rehabilitation specialist, on behalf of the defendant. Dr Corry noted the plaintiff's major physical complaint as relating to his back. It was not sufficiently constant, however, to prevent him from playing badminton and tennis or carrying lighter loads when shopping. Dr Corry further noted that the plaintiff did not complain of much difficulty with his elbow, except to the extent that he developed an ache in the forearm if attempting glass etching for periods of more than fifteen to twenty minutes. As a result he had ceased that activity and turned his attention to painting and drawing. Dr Corry pointed out that there is a six inch posterior scar well healed on the right elbow, with full range of movement and good muscle development. Dr Corry thought that the evident major personality change which followed the injury might be caused by brain damage and he recommended psychometric testing as well as further psychiatric assessment and further work therapy training programmes. The plaintiff seems to have responded to the latter to the extent that he enrolled in a garment assembly course at a TAFE college and secured employment as a technical assistant at the same college. The position was established as part of a community employment programme and, unfortunately I think, came to an end after about nine months. During that time the plaintiff carried out a range of duties relating to graphic work, video work and photography. The employment lasted from 21 February 1985 to 13 November 1985. I conclude that this work was within the plaintiff's physical and emotional capacity and that he was well suited to it. During this period he saw, on behalf of the defendant, Dr Richard Jones, a rehabilitation specialist, whom he saw only once and Dr Smith, the psychiatrist, whom he saw for the first time.

17. The interview with Dr Jones took place on 9 May 1985. Amongst other things, the plaintiff told Dr Jones that his medications included occasional Doloxine for headaches. He said that he kicked a football about and played a little table-tennis after which it hurt when he got into bed. For recreation he was still painting and engaging in glass etching. He became emotional and declined to speak about the death of his brother when that matter was raised. Dr Jones said, accurately in my opinion, that the plaintiff regarded himself as a Jack-of-all-trades. At that stage the plaintiff complained of stiffness in the neck with pressure in the jaw muscles (a claim which had not previously been made and has not been made since, as far as I can ascertain), pressure behind the eyes causing headaches and steady low back pain extending up the length of the back. However, he sat comfortably in the chair. Dr Jones concluded that at that stage there had been a substantial improvement in the plaintiff's condition and that he was by then suffering with minor symptoms of a muscular and ligamentous nature, that he was troubled mainly by tension which was the cause of his headaches and that there was a minor persistent disability in the right elbow. Dr Jones thought that the work that the plaintiff was doing at that time was enjoyable and appropriate, having regard to the alleged disabilities and that there were many skilled and semi-skilled jobs in the clerical area or in process work which the plaintiff would be capable of carrying out. Dr Jones suggested further efforts to obtain suitable employment through the Commonwealth Employment Programme.

18. The interview with Dr Smith took place three months later on 16 July 1985. The plaintiff told Dr Smith that he smoked two or three cigarettes a day and was a social drinker. To Dr Jones he had said that he smoked between ten and sixty cigarettes a day and mostly abstained from alcohol except for the occasional beer with dinner. In contrast to the moderate but relatively clear and consistent pattern of complaints and disabilities described by Dr Jones, Dr Smith found that the plaintiff was so vague, evasive and histrionic in giving his account that it was not possible to reach any conclusions about any neuro-psychiatric disability suffered. He complained of headaches suffered about once a week for three to four hours, back ache aggravated by hard physical work, bending and sex, for which he took up to six Codral tablets a day, persisting pain in the elbow in cold weather with difficulty in using his right hand for art work, loss of memory and ability to concentrate, and irritability, frustration and loss of interest in appearance. The plaintiff also described panic attacks once a month in which he experienced palpitations, rapid breathing and sweating lasting up to two hours and precipitated by making a mistake at work.

19. Dr Smith also noted that the plaintiff told him that the relationship with his de facto wife had deteriorated to such an extent that it had ended in about May 1985 with the plaintiff expressing the view that "in the end I absolutely hated her".

20. The plaintiff said in evidence that whilst he was working at the TAFE he applied for a number of jobs involving promotion of the arts, organizing visiting bands and the like but was never successful. It is not clear why he found it necessary to apply for those positions whilst he still had the job at the TAFE. He was unable to recall what he did after the TAFE job came to an end, except that he has applied for similar jobs about once a fortnight.

21. The plaintiff's evidence-in-chief jumped from the end of the job at the TAFE in November 1985 to the time when he was admitted to Calvary Hospital for the second time in September 1986. Before the admission to hospital the plaintiff had been living at a house owned by his parents at Rivett, but because of his failure to pay the rent and maintain the place his parents asked him to leave. Upon admission to hospital he came under the care of Dr Saboisky, psychiatrist, who supplied a report dated 19 October 1987 and who gave evidence. The hospital records indicate that the plaintiff presented himself to the hospital seeking admission and stating that he felt depressed and suicidal. He complained also of severe back pain from the motor vehicle accident which was distressing and intolerable. He also stated that his de facto spouse had moved out one week previously. The provisional diagnosis on his admission was depression, but drug abuse was regarded as a possibility. It was noted that he spoke in a very low, muffled tone and with slow, limited, aggressive responses. There is repeated reference in the hospital records to the plaintiff's verbal aggressiveness and perceived need for pain-killing medication during the first few days of hospitalization. By 16 September 1986, however, he is noted as being co-operative, "saying he did not have much pain" and eating and drinking "a huge intake". By 21 September 1986 the plaintiff was being encouraged to leave the hospital but he was reluctant to do so. By 8 October it was noted that he was no longer complaining of back pain and two days later he was discharged in the company of his father.

22. A day or two later, however, there was an argument between the plaintiff and his father. He struck his father and as a result was asked to leave his parents' house. This he did. He went to Ainslie Village to live for a couple of months. During that time he seems to have spent his days between attending a drop-in centre in Civic and designing motifs for T-shirts at the Ainslie Village. At his parents' invitation he joined them when they were on holidays in Queensland for about three weeks in early 1987, but the venture was considered a failure by all concerned. The plaintiff described it as "pathetic". Soon afterwards the plaintiff obtained a government flat at Mawson, where he was still living at the time of the hearing. According to his evidence he continues to apply unsuccessfully for various jobs.

23. In reviewing the situation after the plaintiff's discharge from hospital on 8 October 1986 Dr Saboisky expressed the view that the plaintiff had been reactively depressed because of acute, chronic low back pain, domestic difficulties, unemployment, financial hardship and litigation. The plaintiff refused to allow Dr Saboisky to contact his parents and his de facto wife in order to assist him. Dr Saboisky noted the marked shift in mood which occurred quite rapidly after he was admitted to hospital and subjected to medication. A personality test carried out by a psychologist was of little assistance because of widely varying scores. Dr Saboisky arranged for the plaintiff to be examined by Dr Stubbs and Dr Chandran in relation to his lumbar pain. Dr Stubbs, whose report was in evidence, expressed the view that there were signs of genuine organic intervertebral disc disease which were consistent with what was otherwise known about the plaintiff's spinal history. Dr Stubbs recommended a fusion, but the plaintiff declined to accept the recommendation on the same ground as previously. In expressing the view that the plaintiff's symptoms and problems could be said to stem from the accident and the psychological and social consequences, Dr Saboisky left open the question of the plaintiff's condition prior to injury which he felt could not be properly assessed until his parents, his de facto wife and other friends could be interviewed.

24. Within five months, and on 23 March 1987, the plaintiff presented himself for a third time to the psychiatric ward in Calvary Hospital requesting admission, stating that he had felt depressed for one month, and was feeling suicidal. He stated that he had struck his de facto wife and was apprehensive that he might hurt his daughter, who at that stage was about five years old. Dr Lubbe reported that the plaintiff's presentation varied. Sometimes he would be responsible and cheerful with positive plans for the future, and other times he would be despairing and angry. He would not co-operate with any plan to use psychological techniques to help him with pain but insisted on following his own ideas of working as a creative artisan so long as he could control the conditions under which he worked. These plans were unrealistic. The plaintiff left the hospital abruptly when he was asked to submit to a urine test after returning from leave. In her report, Dr Lubbe expressed the tentative view that the plaintiff's pain might have caused his psychological symptoms, but she wondered whether his way of handling his pain and his subsequent exhibition of symptoms were influenced by his pre-morbid personality. When she gave evidence, Dr Lubbe stated that if there were a pre-morbid history of behavioural abnormalities, then it would "lessen the status" of the accident as a factor contributing to the plaintiff's present symptoms.

25. When Dr Smith reviewed the plaintiff on 13 October 1987 he had been furnished with the Calvary Hospital notes and felt able to express an opinion, something which he declined to do after the previous interview in July 1985. I approach Dr Smith's evidence and his report of 26 October 1987 with caution because he took into account some matters which are not supported by the evidence, for instance, the fact that the plaintiff was accompanied to the consultation by a woman "who had all the appearances of a drug addict", that the plaintiff himself was prone to drug abuse and that the plaintiff had recently pleaded guilty to stealing alcoholic liquor. Nevertheless, I think that Dr Smith has accurately stated the nature and extent of the plaintiff's personality problems and their relationship to the spinal condition and symptoms.

26. I turn now to the evidence relating to the plaintiff's background prior to the accident. He was born in Czechoslovakia on 16 February 1956 and came to Australia in 1969. His initial education was in Melbourne and later at Port Moresby until he was brought by his parents to Canberra in 1974 to complete his final year of high school. The results which he achieved in the higher school certificate examination in 1974 were four passes and two failures. His mother considered that he should have done better and that it was the disruption of his schooling at that late stage and the fact that he was not a native speaker of English that led to the indifferent results. This seems to me to take an unrealistically favourable view of the plaintiff's capacity, which is not reflected by the other evidence. Indeed it reflects the plaintiff's own view of his capacities. Over the first six years after leaving school the plaintiff appears to have worked a total of about two and a half years. He had a job in the public service which he held for about twelve months. He left because he could not get on with his supervisor. He was told to shift some boxes from one room to another, but thought that that lay outside the scope of his statement of duties. He was told to wear a tie, but declined to do so because he thought it was strangling him and because some other persons did not wear ties. He then held a job at Parkroyal Motel for about twelve months as a handyman/gardener. According to some accounts he liked this work. However, he left because it was too cold on his hands on the winter mornings. He worked as a cleaner at the Woden Valley Hospital for about six months but was dismissed, according to him, because he was elected union representative.

27. From November 1980 until February 1982 the plaintiff was active in a family business established at Phillip and known as the "Jam Factory". It was described variously in evidence as a discotheque, nightclub, pub and hotel. It is reasonably clear that the plaintiff was enthusiastic and active in the running of this business. He said that he did all the renovation work including carpentry, welding and the like in order to get the premises prepared. His mother held the liquor licence and he was the manager carrying out the bar work, cleaning, organizing engagements and accommodation for visiting musicians and the like. The plaintiff and his mother spoke with some bitterness about the circumstances in which the Jam Factory came to an end. It had to do with complaints from neighbours about the noise. Despite efforts it was apparently impossible to comply with the requirements of the Gaming and Liquor Authority as to decibel readings. For about two months after the closure of the Jam Factory the plaintiff was unemployed. He then somewhat fortuitously took over a business which had been conducted by an acquaintance, Mr.Graham Robert Annand. Mr. Annand, a rural economist then employed by the Australian Government in Canberra, operated the business known as "Strike a Light Fireplaces" since April 1980 in his spare time. When he learned that he was posted to Perth in May 1982, Mr.Annand recruited the services of the plaintiff to assist him in completing the installation of some fireplaces before he left. Upon his departure for Perth on 15 May 1982, Mr. Annand was content that the plaintiff complete the installation of any fireplaces which were still not finished and to continue the business which was virtually handed over to the plaintiff. Mr. Annand said that the business was earning $30,000 a year in gross takings for about fifteen to twenty hours work per week. However, he went on to say that his tax records showed the business to be making a loss, that the tax records were accurate and that in fact he himself did not make a profit out of the business. Over a period of about four weeks Mr. Annand paid the plaintiff as a sub-contractor the total of $1,610.

28. The plaintiff was an extraordinary witness. He was resentful and sullen in manner. He spoke in such low tones that it was necessary for counsel and myself to move quite close to the witness box in order to hear what he had to say. He made veiled threats about what he might do if pushed too far whilst under cross-examination. At the closing stages of the hearing I noticed that he walked with a limp which I had not noticed in the earlier stages. About six months before the hearing he said that he had acquired a car, but shortly before the hearing had had his driver's licence suspended although he had ten years driving trouble-free. These matters need to be raised, but they are not decisive. The plaintiff's presentation in the witness box was simply consistent with the presentation to most of the doctors over the years and consistent with his history of depression.

29. I think that the first question that needs to be resolved is the
extent of the plaintiff's symptoms of low back pain. I think that there has been a degree of exaggeration on his part both to the Court and to the doctors. Some of the exaggeration is, in my view, conscious and some of it unconscious. I do not think that when he sought to be admitted to the Calvary Hospital on three occasions complaining of depression brought upon him by low back pain as well as other factors, he was deliberately exaggerating his back pain. I think it more likely that the depression led to a perception of back pain as more severe than it would have been without that depression. I accept the opinion of Dr McNicol and Dr Stubbs that the subjective complaints and the clinical findings were sufficient to justify a recommendation for surgical fusion. That the plaintiff declined surgery is, in my view, indicative that the complaints were probably exaggerated even taking into account a degree of mistrust of doctors on the plaintiff's part. Even that mistrust was, I thought, exaggerated in his evidence. He sought to justify it long after the event by reference to an experience in Czechoslovakia when he said he nearly died during or as a result of a tonsillectomy carried out without effective anaesthetic. It is surprising that if there were such a childhood incident that it was not corroborated by his mother, although I bear in mind that she was not cross-examined about it. In my view, leaving aside the effect of depression, the extent of the disability caused by low back pain was most accurately evaluated by DrJones when he saw the plaintiff on 16 April 1985, namely that the plaintiff was suffering with minor symptoms of a muscular and ligamentous nature which he thought were then resolving. In fact they did not resolve, but that was, in my view, because of subsequent events leading to depression which in turn led to perception of increased low back pain.

30. The next question is, given that the plaintiff has suffered a disabling lumbar condition, is it due to the accident? The plaintiff, in his evidence, maintained that he had a painful back ever since he first woke in hospital. The defendant relied upon the absence of complaints of back pain symptoms until December 1972. Whilst the plaintiff's evidence has to be approached with considerable caution because of his presentation as a witness, it has also to be seen in the light of the whole of the rest of the evidence. There is a note of complaint of low back pain in the nurse's notes of 5 May 1982. Although the next recorded complaint of back pain was to Dr Ong on 29 December 1982, Dr Mc Nicol believed that the pain could have been "masked" by the other injuries. In any event, Dr McNicol found that the x-rays were sufficiently "dramatic" to cause him to recommend operation on 9 November 1983. Although Dr McNicol eventually concluded that there probably was no fracture of the facet joint, I did not take him to say that the x-rays and discogram positively excluded a lesion in the lumbar spine. The fact that the plaintiff submitted to a discogram is supportive of his complaints at least to some extent. Dr Stubbs' report is also sufficiently positive to lend support to the conclusion that although there must be considerable doubt about the matter, the plaintiff's established lumbar symptomatology is, on the probabilities, explicable as a result of the injury.

31. I conclude then that the plaintiff as a result of the accident suffered and continues to suffer from a moderately disabling lumbar condition which is on the probabilities susceptible to relief by surgery. He declines to submit to that surgery. I am not prepared to hold that the plaintiff's behaviour in this regard is so unreasonable that the defendant has discharged the onus of proving that he has failed to mitigate his damages, rather, I think, that it simply leads to the conclusion that the condition is not as bad as he makes out or even as bad as he sometimes thinks it is. Given then that it is a lumbar conditon of that nature and that intensity from which the plaintiff suffers and will continue to suffer, and given that he suffered from a mildly disabling right elbow until about the end of 1985 which continues to be of little more than nuisance value, can it be said that the plaintiff's ongoing depression, acutely exacerbated from time to time and necessitating hospitalization, can said to be a result of the injury? The defendant must, of course, take the plaintiff as he finds him and if he is a person who is particularly susceptible to depression, that fact cannot excuse the defendant if the depression results from the defendant's wrongful act. Furthermore, on the question of causation, the law requires a common sense rather than a scientific or pseudoscientific approach. If the defendant's wrongful act can be seen to be a substantial cause, that is sufficient. It does not have to be the sole cause or a dominating cause. A test which the courts have found appropriate to apply in many cases over the years is: would the result for which the plaintiff contends have occurred without the defendant's wrongful act? As I see it, up until the middle of 1985 or thereabouts it is plain on the probabilities that the plaintiff's continuing depression would not have occurred without the pain in his lumbar spine which itself contributed to his having to cease work as a taxi driver in 1984 and hence contributed in a material way to his unemployability. From about the beginning of 1986, however, the plaintiff had shown that he was able to carry out and even enjoy the range of activities required of a technical assistant in the preparation of audio-visual material. That work came to an end not because of the plaintiff's disability but because the government sponsored programme which provided the employment came to an end. The plaintiff continued to be unfit for heavy work, but apart from the times he was in hospital he was not unfit for the sort of work that he had been carrying out through 1984.

32. In assessing the plaintiff's incapacity for work and his loss of earning capacity, if any, it is important to bear in mind his pre-accident work history and the attitude he has displayed towards paid employment both before and after the injury. In my view, both his pre-accident work history and his attitude to employment pre-injury and post-injury show that it was highly unlikely that even without the injury he would have embarked upon and continued in regular paid employment. He has shown that he is prepared to carry out activity which would generally be regarded as work so long as the conditions suit him. That would not, however, necessarily be in employment. He would seem to prefer self-employment. He regards himself as an artist or at least as an artisan. He said in evidence that in a perfect world he would not work anyway. He is able to carry out a range of activities, modelling figures, designing clothes, organizing concerts over the telephone to name but a few. He concedes that he can do most things, but claims that he is just unlucky in not being able to find work.

33. It is not surprising that the plaintiff cannot find work in view of his apparent resentfulness and aggression. It was claimed on his behalf that this resulted from a change of personality which itself was brought on by the accident. On the whole I am prepared to accept this submission as far as it goes. I placed particular importance upon the evidence of Mr. McMahon and Mr Simko, family friends, who spoke of how the plaintiff used to be a person who was very active and who took a pride in his appearance and his accomplishments and of how very soon after his injury he grew sensitive, withdrawn and lost his self-esteem. However, I am not convinced on the balance of probabilities that the accident continued to be an effective cause of this change of personality beyond the beginning of 1986. The plaintiff's unsatisfactory relationship with his de facto wife has, I think, become an increasingly important factor. Although in mid-1985 the plaintiff told Dr Smith that the relationship had ceased, it is obvious that it continued for some time thereafter. The parties no longer live together, the child is in the custody of the mother and the plaintiff has access to her at weekends. On all three occasions when the plaintiff has been admitted to hospital for psychiatric attention, events in the relationship with the de facto wife appear to have been a major consideration precipitating the symptoms leading to the admission. Nevertheless, in my view, whilst the plaintiff was, before his accident, predisposed to anxiety and depression, it was the accident which initially triggered off that pre-disposition, with serious consequences. Whilst other factors for which the defendant is not responsible had joined the accident as substantial causes by the beginning of 1986, I do not think that they totally displaced the accident as a substantial cause of the admissions to hospital in September 1986 and March 1987. In coming to these conclusions I take into account the evidence of Mr. Simko, Mr. McMahon, the plaintiff's mother and Mr. Loftus, a solicitor, who found the plaintiff to all appearances to be perfectly normal before the injury.

34. I agree in part with the remarks of Dr Smith, who states that:

"..... his spinal pathology has never produced much pain but that
either his tolerance to it diminished once he became depressed in
1984 or he then deliberately began to exaggerate his
symptomatology, perhaps for financial gain. His symptoms seem to
have settled quickly with each of his psychiatric admissions.

.....

In summary, the available evidence indicates that Mr. Matuska has
always exhibited psychopathic traits and that his three
psychiatric admissions resulted mainly from this disorder and
especially his relationship with his also disturbed girl-friend.
Although he apparently has significant lumbar pathology this
probably has been associated with only low grade symptomatology
that has not prevented him from working for up to 12 months at a
time. He has little residual disability from the fracture of his
right elbow ....."

35. The qualifications which I would place on these remarks are that I do not think that there was deliberate exaggeration of physical symptoms on the occasions of the three admissions to the psychiatric ward, although there has been deliberate exaggeration in evidence and on occasions to the doctors. Further, I do not exclude the back condition as a causative factor in the three admissions. Lastly, DrSmith was incorrect in his assumption that the plaintiff had worked for up to twelve months at a time since the accident.

36. I am unconvinced that the fireplace business was profitable or likely to be profitable to the extent that it can form a basis for assessing the plaintiff's loss of earning capacity.

37. The earnings received by the plaintiff during the period he was employed as a technical officer in 1985 averaged about $327 net per week (from 21 February to 13 November 1985 - $12,779). Figures in evidence from the Australian Bureau of Statistics show that during that period average weekly ordinary time earnings for male adults were about $410 per week gross or about $325 net and average weekly total earnings for adult males working full-time were about $440 gross or $345 net. This would indicate, I think, that the plaintiff's earnings were, for practical purposes, about the same as average weekly ordinary time earnings and a little less than average weekly total earnings for full-time Australian adult male workers. By the use of the statistics in evidence, it can be shown that the gross weekly total earnings for full-time adult males from the time of the plaintiff's injury on 30 April 1982 to 21 February 1985 were about $42,000 net. During that time the plaintiff received from his earnings as a bartender and taxi driver a total of $2,610.70 net. He also received by way of unemployment benefits $8,688.06 (see exhibit 8). It is very difficult to estimate this latter figure in terms of net earnings after tax, but for the purpose of the case I will take it to be slightly less than $8,000. The difference between the plaintiff's actual earnings and those he would have received if he had worked full time as a technical officer during this period to 21 February 1985 is about $32,000.

38. I award a round figure of $25,000 for loss of earning capacity during that period.

39. For the period beyond then it is impossible to fix the plaintiff's loss of earning capacity on a periodic basis. It is impossible to determine what he was likely to be earning but for the injury, having regard to his pre-injury employment history, his attitude to work and employment and personal factors relating to his de facto relationship, his predisposition to depression and anxiety and the like. Nevertheless, the plaintiff has, in my view, proved an ongoing incapacity to carry out work of a heavy nature and that his reduced capacity results from injury. It has been shown that whilst he was working for the Jam Factory and whilst he was installing fireplaces he did carry out heavy work from time to time in order to earn income. He is now deprived of that capacity because of his back condition. It is very difficult to put a figure on it but the deprivation of that capacity must be measured in money terms. The plaintiff is still a young man and the figure must be more than nominal. On the other hand, it is not likely, in my view, that he would but for injury have engaged in heavy work which would have been productive of substantial income. I take into account the receipt by the plaintiff of unemployment benefits as set out in Exhibit 8. This must now be taken into account in assessing the plaintiff's past loss of earnings: Evans v. Muller [1983] HCA 16; (1983) 151 CLR 117, and the better view now appears to be that the likelihood or possibility that the plaintiff will continue to receive unemployment benefits in the future should be taken into account as a discounting factor: Tuncel v. Renown Plate Co. Pty. Ltd. (1976) VR 501 (Full Court, referred to with approval in Evans v. Mullar especially at p 146 per Mason and Dawson JJ.) Bertram v. Kapodistrias (1984) VR 619 (Gobbo J.) and Sarkis v. Rowe (unreported Supreme Court of New South Wales, Campbell J., 7 December 1987).

40. The decisions of Blackburn C.J. in Canny v. John Pfeiffer Pty. Ltd. (1979) 28 ACTR 11 and Morley v. Murray and Commonwealth of Australia (1980) 31 ACTR 25 (expressly disapproving Tuncel v. Renown Plate Co.) should, despite the strength of the arguments advanced, no longer be followed. The plaintiff had been receiving unemployment benefits continuously from 1 July 1987 to the end of the hearing and there is a distinct possibility that he will continue to do so, at least from time to time. Doing the best I can and bearing all contingencies in mind, I assess the value of loss of earning capacity from 21 February 1985 to date and into the future at $65,000. Bearing in mind that the plaintiff has received unemployment benefits for some of the period during which he was out of work, and sickness benefits for at least part of the remainder, I decline to award interest in respect of any past loss of earnings but in the exercise of discretion I allow $5,000 in lieu of interest on past loss of earnings.

41. For pain and suffering and loss of enjoyment of life I again bear in mind that the plaintiff is a comparatively young person, but that his ongoing moderate back disability still enables him to carry on a range of activities such as thirty press-ups at a time, kicking a football around and the like. I award a sum of $25,000 under this head of damages. I apportion $15,000 to the past for the purpose of interest. Out-of-pocket expenses are agreed in the sum of $2,352.79 except in respect of the period spent in Calvary Hospital in 1986 and 1987. I am not satisfied that in respect of these periods the lumbar back condition can be excluded as a cause of the plaintiff's hospitalization and he should be awarded the cost of such hospitalization. (I have allowed for his loss of earnings during those periods and for a short time therafter in the calculation of past loss of earning capacity). I therefore award the total amount of out-of-pocket expenses claimed at $18,652.79.

42. In summary the damages awarded are as follows:

Pain and suffering and loss of
enjoyment of life $ 25,000.00

Out-of-pocket expenses $ 18,652.79

Loss of earnings to 16 February 1985 $ 25,000.00

Loss of earning capacity thereafter
and into the future $ 65,000.00

Total: $133,652.79

43. This appears to be a proper sum viewed as a whole. To it is to be added interest at 7 per cent per annum on the past component of pain and suffering ($15,000) which gives a figure of $6,650 together with $5,000 which I award in lieu of interest on past loss of earnings. The plaintiff is to have judgment for $145,302.79. Unless the parties want to be heard on costs I order the defendant to pay the plaintiff's costs.