Charles Batticciotto v Vincent Scuderi [1998] ACTSC 205 (1 May 1998)

  
  
  
  

  
   

  

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   MASTER T. CONNOLLY

  

  

   Damages
- Assessment - Personal injury - Motor vehicle accident -
Dislocated right elbow - Extensive bruising - disc injury - causal link
of
disc injury to accident - No issue of principle.

  

  

   CANBERRA, 5-6 November 1997, 30-31 March and 1 April 1998 (hearing),
1 May
1998 (decision)

   #DATE 1:5:1998

  

   Counsel for the Plaintiff: Mr R Crowe

   Instructing Solicitors: Maliganis Edwards
Johnson

   Counsel for the Defendant: Mr J Poulos QC & Ms C E Adamson

   Instructing Solicitors: Abbott Tout Harper Blain

  

  

   THE COURT ORDERS THAT:

  

   1. Judgment be entered for the plaintiff in the sum of $56,550.00.

   2. The defendant
pay the plaintiff's costs.

  

  

   MASTER T. CONNOLLY

  

   This is a claim for damages for personal injuries arising from
a motor
vehicle accident which occurred in June 1988. The plaintiff, who was and
remains a Canberra resident, was the passenger in
a light truck which left the
highway and rolled several times near Bungendore in New South Wales while
travelling between Canberra
and the South Coast. Liability was not in issue,
but the matter nevertheless proceeded over 5 hearing days on the question of
the
assessment of damages.

  

   The issues between the parties may be briefly set out. The plaintiff claims
that the injury caused
damage to his disc at the L4/5 level. There is no doubt
that the plaintiff now suffers from a damaged disc at this level, and has
undergone surgery on three occasions to attempt to remedy the problem, without
success. The defendant argues that the time lapse
between reporting of
symptoms in the lower back and the accident makes it unlikely that the
accident was the cause of the disc herniation,
and argues that I should not
find, on the balance of probabilities, that the accident was the cause of the
injury.

  

   In any
event, the impact on the plaintiff of the injury is in dispute. The
plaintiff's case was pleaded on the basis of a total inability
to earn income
from the date of the accident. The plaintiff pleaded that before the accident
he had been fully fit with no restrictions
on his working capacity, and was
engaged in a successful business of fish merchant between Canberra and the
South Coast, earning
$1,000 a week net of tax. This was originally claimed as
a past and ongoing loss, but in the final statement of particulars filed
on 4
July 1997 the plaintiff acknowledged that he had been able to engage in some
light work in restaurants, and claimed a past and
ongoing loss of $800 per
week for past and future loss. The plaintiff was born in May 1953, and this
claim, assuming a working life
to age 65, amounted to well over $800,000.

  

   The defendant placed the plaintiff's credibility squarely in issue in
relation
to the economic loss claim. It pointed to a number of discrepancies
in his story over the years, the most glaring, and unanswerable,
being sworn
answers to interrogatories dated 12 October 1992 where the plaintiff swore
that he had only had two weeks of employment
since the accident. In fact at
the time of these interrogatories the plaintiff was negotiating a lease for
the period 9 October 1992
to 8 October 1995 as a partner in a restaurant
business conducted at the Italo Australian Club in Forrest . It is the
defendant's
case that the plaintiff had ceased to engage in heavy work as a
butcher some years prior to the accident and had then spent a period
of time
on sickness benefits, had returned briefly to butchering before being given
three months off work by his general practitioner
for back strain. He had, on
the defendant's case, continued to operate his fish run for some time after
the accident, and has since
then engaged in a range of entrepreneurial
activities.

  

   The defendant also denies the success of the fish vending business.
The
plaintiff claims that all records relating to the business were lost in the
accident. He nevertheless signed and lodged a tax
return for the 1987-88
financial year which recorded only disability payments from social security as
income. A document styled an
"amended return" produced by his accountant in
November 1991, after this litigation was commenced, purported to show that he
had
earned $54,600 net income from the fish business. There was no evidence to
show that this document was ever used to assess any tax
or that any tax was
paid.

  

   The impact of the accident: attribution of injuries

  

   It is not in dispute that the plaintiff
suffers from a herniated disc at
the L4/5 level, which has been the subject of repeated and unsuccessful
attempts at surgical amelioration.
The attribution of this injury to the motor
vehicle accident, however, is in issue between the parties.

  

   The fact of a disc
injury was first confirmed by CT scan on 24 October
1989, some 16 months after the accident. The first record of complaint to a
doctor
of pain in the lower back was in February 1989, when the plaintiff's
treating general practitioner recorded

  

  

   "...still
has headache, painful right elbow, lower back ache".

   While this note is ambiguous, and counsel for the plaintiff argued that
it
could mean back ache since the accident, this however was not the plaintiff's
claim in his evidence in chief and cross examination,
and the treating general
practitioner was not called to explain his note.

  

   It is not in dispute that the contemporaneous notes
do not record
complaints of lower back pain. The ambulance notes record

  

  

   "Patient found sitting in passenger side of vehicle
c[omplaining] o[f]
lateral chest pain L and pain to R elbow."

   The ambulance took the plaintiff to Queanbeyan Hospital, where
the notes
from accident and emergency record that he gave a history of diabetes and
arthritis, and they recorded

  

  

   "...dislocated
R elbow - chest pain - some left shoulder ache."

   The plaintiff was then taken to Royal Canberra Hospital, but apparently was
not treated at the emergency department, and was allowed to leave. No notes
exist of his attendance there.

  

   The plaintiff
was taken home and cared for by his family. His wife
described him as being in extreme pain and bed ridden. His family general
practitioner
attended him at home, and noted his painful right elbow, neck and
upper chest. No record of back pain exists.

  

   The plaintiff
has told various doctors that he had suffered back pain since
the accident. He was referred to Dr Woods, an orthopaedic surgeon,
in June
1989, and his report says

  

  

   "He described backache, which had come on 4 to 6 weeks after his motor
vehicle accident."

   In cross examination the plaintiff was confronted with an insurance
application that he had filled in on 14 September 1988, some
three months
after the accident. He agreed that while he referred to his accident he did
not say anything in this application about
back pain

  

  

   "...because I wasn't had that back problem at that stage I think."

   It is appropriate to set out the cross
examination from this point
(transcript p89):

  

  

   "So you had no back problems on 14 September 1988? That's the date you
filled in the form?--Yeah, Well, You know - I didn't - why should I told them
I had a bad back when I didn't have a really bad back
at that stage. So that's
another reason why, if you were to tell a doctor that the back ache came on
four to six weeks after the
accident, that would be an untrue statement ?--I
believe so, yes. So, when Dr Woods is told by you that your back ache came on
four
to six weeks after the accident, that wasn't true?--Hang on. I didn't
tell Dr Woods that my back came after four or six weeks. Well,
I beg to
differ. I want to put it to you that you did--Did I? Yes--Well, if I did, once
again, I couldn't say that I had a bad back
after the four to six weeks
because I think my back came really bad after six, seven either months."

   This is broadly consistent
with his evidence in chief, where he said that
his back started to worsen around Christmas, and that he first saw a doctor
about
his back about seven or eight months after the accident. In his evidence
in chief he said that he attempted to resume trips to the
coast some two or
three months after the accident, but that he had pain on the trip. He said
that

  

  

   "...this is when my
back start playing up. You know, I had pains between my
shoulder blades. They were travelling down to my back, you know, started
to
slowly, slowly, and over a period of months it go really saturated."

   The plaintiff said that he took two trips only to the
south coast after the
accident.

  

   This evidence is inconsistent with invoices produced by Mr Edwards, who was
at the time and
remains the foreman at the fishermen's co operative at
Ulladulla. He was called in the plaintiff's case, and he brought with him
what
he described as extracts from the invoice books. He acknowledged that what he
had was not a complete record, but the documents
that he did produce showed
that the plaintiff signed off for fish pick ups at the Ulladulla fishermen's
co operative on 9 separate
dates from October 1988 to March 1989. There were
records for 12, 20, 23 and 24 October, 5 December, 15, 27 and 28 February and
14
March.

  

   I am satisfied, and I find, that the plaintiff first made complaint of pain
in his low back around February 1989,
that is, some seven to eight months
after the accident.

  

   This substantial gap between the first complaint of low back pain
and the
accident presents a hurdle to the plaintiff's case. While there is no doubt
that the plaintiff has suffered a frank disc
injury, one would normally expect
this to be productive of symptoms closer to the time of the accident. All of
the doctors who gave
evidence in this case and were confronted with this gap
agreed that the more time that passed between the accident and the first
complaint of symptoms, the less likely was a causal connection. Nevertheless,
the plaintiff argues that there is sufficient evidence
to justify a finding
that it is more likely than not that the accident caused the disc injury.

  

   The doctors who gave oral
evidence in this matter were doctors Newcombe and
White, who had provided reports to the plaintiff, and Andrews, who had
provided
reports for the defendant. Each of these doctors took initial
histories which recorded low back pain at or shortly after the accident.
These
histories were incorrect, but each of these doctors had the correct version
put before them in oral evidence. Reports from
other doctors who relied only
on the plaintiff's incorrect history are not reliable, as they are based on
assumptions which have
not been proved ( Ramsay v Watson [1961] HCA 65;  (1961) 108 CLR 642).
I thus disregard the views of Dr Woods, who took a history of low back pain
four to six weeks after the accident,
and Dr Grant, who took a history of low
back pain following the accident. Dr Saboisky, a psychiatrist who examined the
plaintiff
for the defendant in December 1996, took a history of presentation
at Woden Valley hospital for severe back pain in the days after
the accident,
which is not consistent with the evidence. Dr Eaton, an occupational
physician, examined the plaintiff on behalf of
his solicitors in March 1997,
and also took a history of back injury at the time of the accident, which is
not consistent with the
evidence.

  

   Dr Newcombe's first report of 8 April 1991 records the history of low back
pain at the time of the accident. He
records that x rays of 15 February 1989
reveal early degenerative disc change at C5/6 and C6/7 level, and he also says
that lumbar
spine x rays showed disc degenerative disease especially at L2/3
and L3/4 levels with anterior osteophyte formation. He states that

  

  

   "A CT scan of the lumbar spine revealed L4/5 disc herniation most prominent
on the left side with nerve root compression."

   In his report Dr Newcombe concludes

  

  

   "I have perused the report by Dr R Kitchen dated 06/03/89. In this report
it
is apparent that other injuries were dominant in the early stages and would
appear to have masked the neck and lumbar spinal problems
during the first 6
months or so. I note x rays were done in February 1989 of the neck and lumbar
spine."

   In his examination in
chief Dr Newcombe acknowledged that he had a history
of low back pain being continuous from the time of the accident. It was put
to
him that, assuming the plaintiff

  

  

   "...first noticed low back pain a couple of months or even several months
after the
accident, that it gradually got worse, that he particularly noticed
it when he attempted to return to coastal trips as a fishmonger
travelling in
a truck to and from the coast and that the pain gradually worsened but the
first medical reference in the general practitioner's
notes or elsewhere to
low back pain does not occur until February of 1989",

   would that alter his view as to causation. Dr Newcombe's
response was

  

  

   "No. I think that it is quite a common history in view of - that the pains
take a while to come to the fore
particularly when there are other more
dominating injuries."

   Dr Newcombe also agreed in his evidence in chief that he had no
history of
back problems prior to the motor vehicle accident. In fact the clinical notes
from his treating general practitioner,
who was not called to give evidence in
these proceedings for the plaintiff, record a range of visits with complaints
of back or neck
pain. The first reference is on 25 March 1976 to "strained
back", and there follows:

  

  

   "...13 June 1978, stiff neck, 8
August 1978 pain in neck and shoulder area,
10 August 1978 for physio, 30 August 1978, still complaining of stiff neck, 5
June 1979,
also pain in lower cervical spine, 5 May 1980 complained of back
pain, sore throat 13 June 1980, headache, pain in back, sore ears
etc, 15
November 1982 injection in back with depomedrol, 10 January 1983 painful
trigger area, left shoulder blade area inj. depomedrol,
20 May 1983 injection
of shoulder blade muscle area depomedrol, 24 June 1983 bad headache, ache in
shoulder blade and neck pain,
29 July 1985, Back ache - pain down right leg,
Rx voltaren, 24 March 1986 pain in back and shoulder, Rx voltaren, 4 December
1986,
voltaren, 18 April 1987 Money and family worries. Has had painful
thoracic spine since lifting inj[ury] some years ago. For trial
feldene 10 mg
with evening meal, 2 September 1987 c/o pain in forearms, wrists and elbows
after a few days working in cool rooms
at Tankred Meat. Bros sold butchers
shop but in 3 or 4 months will be able to get a job driving. Pain unable to do
present. Given
WC 3/12."

   The plaintiff had in sworn interrogatories in October 1992 denied any prior
history of back pain. In cross examination
he agreed that he now recalled the
incidents referred to above, and in particular the instances of Dr Quach
giving him injections
for back and shoulder pain. He was unable to offer any
convincing reason for his untrue statement in his interrogatories, and I find
that he was in fact untruthful in these responses, as well as having been
untruthful in providing histories to various doctors in
the course of this
matter.

  

   In his cross examination Dr Newcombe agreed that a long term prior history
of complaints of neck
and back pain could be explained by the presence of the
degenerative changes observed on the x ray in 1989. He also agreed that the
plaintiff's earlier occupation as a butcher was the type of heavy work that
could advance and accelerate underlying degenerative
changes. It was then put
to him

  

  

   "So when he has the car accident, if he has these marked degenerative
changes in his
back and he has symptoms without effort sometimes, with effort
other times, you would expect the car accident, if it had any effect
on his
lumbar spine, to have produced symptoms immediately, wouldn't you?"

   Dr Newcombe replied

  

  

   "Yes, or soon afterwards."

   Dr Newcombe was also asked to assume, as I find, that the plaintiff made no
complaint of back pain until February 1989, that
in that time he had been to
Dr Quach his general practitioner in relation to an application for an
insurance policy in which he said
that he had no back problems and that he
first complains of low back ache, but not radiating pain in February. He was
asked

  

  

   "Now, that's more consistent with some degenerative condition creating
lower back pain at that time, is it not?",

   and
he answered

  

  

   "Yes".

   In re examination he agreed that if there was complaint of low back pain
from a couple of months
after that accident that would be consistent with the
accident as the cause of the disc prolapse. He referred to a note from Dr
Quach
in March 1990 which said

  

  

   "...and has been complaining of low back pain in the left sciatica since
the accident".

  
As this is not a contemporary note, and indeed is inconsistent with the
contemporary evidence, I do not rely on it to alter my finding
of fact that
the plaintiff first experienced low back symptoms in around February 1989.

  

   Dr White first reported for the plaintiff
on 17 March 1995. In this report
he recorded a history that

  

  

   "Mr Batticciotto informs me that over the first month he
was aware of
generalised cervical and lumbosacral spine pain, the former being more severe.
As his arm pain and cervical pain wore
off he became more aware of his low
back pain which appears to have increased over several months and become
associated with pain
down the backs of both legs."

   This history is inconsistent with the facts as I have found them to be.

  

   Dr White is a neurologist
who practices principally in Melbourne, and he
gave evidence by telephone link with the consent of the parties. He
acknowledged in
his evidence in chief that he had no prior history of back
pain, and that he had assumed that the plaintiff began complaining of
pain
shortly after the subject accident. Dr White tended to downplay the
significance of the prior history as recorded by Dr Quach.
He said that it is
not possible on the basis of these notes to say what type of pain was in
issue, but that, as no x ray examinations
had been performed, he was inclined
to think that they may have been complaint of muscle or soft tissue pain only,
and so of no significance
in this case. He was asked

  

  

   "Would it alter your view as to causation if you assumed that he didn't
become aware of low
back pain until three or four months after the date of the
accident?"

   He replied

  

  

   "I think it's a difficult question.
Under normal circumstances it would
certainly cause you to think about it. However, we have here a man who in 1989
had x rays which
didn't show very much pathology and certainly now at the
levels which he was subsequently having problems. A CT scan showed substantial
L4/5 disc herniation. Now, you normally associate that with trauma and, given
that, the accident is the most significant event described
in the history.
Under the circumstances, even if his pain didn't really appear until three or
four months later I would still say
that the accident had been a significant
contributor, but certainly, as one was going through this, if a patient
presented three
or four months after an accident one wouldn't immediately say,
yes, that was the accident causing it, but I think with the accumulation
of
radiological evidence, the long term history, one would have to say in this
situation the accident was the significant contributor."

   In cross examination Dr White agreed that if the plaintiff said that he had
had problems in his back and leg before the accident,
and that he had had
pains that used to last two to three weeks in his legs, this would be a
potentially significant piece of information,
but he maintained the view that
it was not possible to say whether this was indicative of disc problems at the
time or simply unrelated
muscle soreness. He did however agree that

  

  

   "...it is true to say that the longer after an accident that elapses
between
the accident and the development of symptoms you have correspondingly
greater difficulty in drawing the causal connection."

   He
was also asked whether there was significance in the complete absence of
any record of back pain in the ambulance and hospital notes.
He said

  

  

   "Not necessarily in that patients complain of whatever is their worst pain.
It depends on how distressed they
are at the time. It certainly - if there was
absolutely no complaint over weeks or months one would be uncertain about the
connection
but, no it is not particularly surprising when patients come in in
an injured state, they complain about one of their more severe
pains. If his
lower back was not severe at the time or his leg pain was not severe or not
present at the time, you know, he may not
complain of it in that setting."

   Dr Andrews is a neurologist who saw the plaintiff for the defendant. He
first reported on 27
June 1991, and in that report took a history of soft
tissue injuries to the lumbar spine at the time of the accident, and assumed
in his reports that the accident was the cause of the disc pathology and the
subsequent operations which the plaintiff has undergone.
After the first day's
hearing of this matter the defendant's solicitors wrote to Dr Andrews and drew
to his attention the fact that
the first complaint of low back pain was not
recorded until at least seven months after the accident, and the history of
previous
complaints of back pain taken by Dr Quach. In a report of 25 March
1998 Dr Andrews said

  

  

   "It would seem on the information
now available that the accident has not
been responsible for lumbar disc disease and disc prolapse and that it is
probably due to
the natural progression of his underlying condition which was
presumably fairly substantial prior to the motor vehicle accident."

   Dr Andrews was taken through the range of complaints recorded in Dr Quach's
notes. He said that the complaint of back and leg
pain in 1985 was potentially
the most significant, but qualified this by noting the same difficulty noted
by Dr White, that is, that
it is not possible in retrospect to say with
certainty whether a past report of pain relates to a disc problem or merely
muscle or
soft tissue strain. He was of the view that there was no connection
between the accident and the disc if the symptoms first emerged
in February.
It was also put to him that, on one version of the plaintiff's history, the
symptoms first emerged at around four months
after the accident. He replied

  

  

   "I think four months is getting a bit late for a linkage between the
accident and those
symptoms."

   In cross examination, Dr Andrews said that the minor nature of the
degenerative changes shown on the x rays in 1989
would indicate that the 1985
complaints were more likely to be unrelated to any disc problem.

  

   He was firm in his view that
he would expect to see some symptoms by way of
back pain or sciatic pain or both within one to two months if the accident was
the
cause of a disc prolapse, although he agreed that other pain, such as from
his dislocated elbow, could mask the lumbar pain. He agreed
that, if the
history showed a complaint of back pain four to six weeks from the accident,
that would be within the time frame. If
this is a reference to the history
taken by Dr Woods, there is of course the problem that the plaintiff
distinctly denied such a
history.

  

   It was put to Dr Andrews that the forces and trauma involved in this
accident would be the type likely to cause
a disc prolapse. Dr Andrews said
that in fact he would not expect to see disc injury to the lumbar region in
this type of accident
involving the rolling of a motor vehicle. He said

  

  

   "...the forces in a roll are much less than a straight de acceleration
injury, where necks and back tend to get injured. An accident of that kind
does not normally lead to rupture of damage to discs in
the back. They might
possibly in the neck, but not in the lumbar region as a rule."

   I am not satisfied, on all of the evidence,
that the motor vehicle accident
of June 1988 was the cause of the disc injury which was identified in June
1989. I find that the
first complaint of low back pain was made in February
1989, and on all of the medical evidence before me I do not find that it is
more likely than not that trauma could produce damage to a disc which would
remain unsymptomatic for that period of time. I note
the extensive medical
notes of Dr Quach, which demonstrate that the plaintiff is not a person who
has demonstrated a reticence about
complaining of symptoms. The most likely
explanation for the lack of complaint is that there were no symptoms, and the
plaintiff
himself acknowledged seven to eight months as the likely time frame,
despite giving quite untrue histories to a range of doctors
over the years.

  

   It follows that I assess the plaintiff's claim for damages on the basis
that the motor vehicle accident of
June 1988 caused the plaintiff extensive
bruising and the dislocation of his right elbow, which required manipulation
under anaesthetic
and plaster of paris splinting. I accept that the plaintiff
was in strong pain from his bruising and dislocated elbow, and that he
required some weeks bed rest after the accident. But it also follows that his
ongoing claim for incapacity based on the claimed ongoing
consequences of his
disc injury and the repeated surgical intervention must be rejected.

  

   The principles to be applied in
determining compensation in personal
injuries cases have recently been summarised by McHugh J in Nominal Defendant
v Gardikiotis
(1996) 1 CLR 49 where his Honour said (at 54):

  

  

   "When a defendant has negligently injured a plaintiff, the common law
requires the defendant to pay a money sum to the plaintiff to compensate that
person for any damage that is causally connected to
the defendant's negligence
and that ought to have been reasonably foreseen by the defendant when the
negligence occurred. The sum
of money to be paid to the plaintiff is that sum
which will put the plaintiff, so far as is possible, 'in the same position as
he
would have been in if he had not sustained the wrong for which he is now
getting his compensation'."

   In relation to general damages,
I would award damages in the sum of $25,000
for the plaintiff for the plaintiff's injuries sustained at the time of the
accident,
together with interest of $4,445, assessed on the basis that all of
the plaintiff's injuries have now settled and so all of the award
relates to
past damage. This amounts to an award for general damages of $29,445. If I was
wrong in my view as to the attributability
of the disc injury to the accident,
the award of general damages would be much higher, reflecting the frank disc
injury and a series
of three operations which have attempted, unsuccessfully,
to resolve the lumbar pain produced by the disc injury. In such a case,
a
substantial award of general damages would be appropriate and I would have
awarded damages in the sum of $90,000, with $60,000
being attributable to past
loss, generating interest of $10,668, a total amount of $100,668.

  

   In relation to economic loss,
my finding on the attribution of the
plaintiff's disc injury leads me to conclude that the plaintiff's economic
loss claim should
be limited only to the period of recuperation from the
dislocated elbow and general bruising. This is limited to a general buffer
for
a closed period, and I award the sum of $10,000, which would generate interest
in the period to date of some $6,500. I award
a total of $16,500 for past
economic loss.

  

   The plaintiff's particularised claim for economic loss was for an ongoing
loss,
from the date of the accident, in the order of $800 per week net of tax.
The plaintiff's case was that, but for the accident, he
would have been able
to continue in what he claimed was a profitable business as a fishmonger. I am
not satisfied that the plaintiff
was in fact earning in the order of $1,000
per week net of tax from this enterprise. No records have been produced. The
plaintiff
claimed that all the records were with him when the truck crashed,
but no bank or other records have been produced to show earnings
at this
level. As I stated earlier in my reasons, the plaintiff signed and lodged a
tax return for the relevant period which claimed
that he was only in receipt
of sickness benefits. I am not satisfied that the so called amended tax return
establishes the plaintiff's
real level of earnings from this venture.

  

   The plaintiff's case was that he was fully fit at the time of the accident.
I am
not satisfied that this is the case. I have referred to the history of
back complaints recorded by his general practitioner. The
plaintiff had worked
as a butcher since qualifying from his apprenticeship in 1972. From 1976 to
the mid 1980's the plaintiff operated
his own business as a butcher. This was
heavy work. He was declared bankrupt in November 1985, and worked for a time
as an employee
of his brother's, who also conducted a butchers business.

  

   In April 1986 the plaintiff was diagnosed as suffering from non
insulin
dependent diabetes, and then he was on sickness benefits on account of this
condition for an extensive period in 1987. The
doctors who gave evidence
agreed that this condition could lead to a general weakness and inability to
engage in heavy work. The
plaintiff obtained a position as an employed butcher
with Tankred Meats in 1987, but after two days he attended on his general
practitioner
complaining of pain in the forearms wrists and elbows. Dr Quach's
notes record that he was

  

  

   "Given w/c 3/12".

   I accept
the plaintiff's evidence that he was not in receipt of workers
compensation following this incident, but was in receipt of sickness
benefits,
which were in fact declared as his sole income in his 1987/88 tax return.

  

   I find that the plaintiff had in fact
left heavy work as a butcher around
1986 as a result of his diabetes, and after a couple of days attempt to return
in September 1987
found that he was unable to continue due to pain in his
forearms, wrists and elbows. The plaintiff began his fish run in early 1988.
While he claimed that he attempted only two trips to the south coast after the
accident, the evidence of the receipts of the Ulladulla
Fishermens Co Op shows
that he in fact signed for consignments on 9 occasions from October 1988 to
March 1989.

  

   The plaintiff
gave sworn answers to interrogatories in October 1992 that he
had only been able to engage in two weeks of attempted employment,
in a
bakery, since the accident. I find that this was untrue. The plaintiff had in
fact been involved in the running of a restaurant
at the Italo Australian Club
in Canberra for some time. Within days of the interrogatories he signed a
lease for the restaurant,
but he had been involved in this enterprise for some
time. In a loan application form tendered as an exhibit the plaintiff
indicated
that he had been a partner in the business of Rigalletto Restaurant
since October 1990, and disclosed a monthly income of $4,000
after tax. In the
March 1992 edition of the publication "La Campana" an advertisement for the
restaurant referred to "Charlie, Mauro,
Tony and Matteo" as the hosts. The
plaintiff acknowledged that he was the "Charlie" referred to. The books of the
business, tendered
as evidence, show drawings to "Tony, Maurom, Matthew,
Charlie" starting at $6,400 in July 1991. Regular drawings to Charlie, which
the plaintiff acknowledged referred to him, appear from this date on, and are
summarised as drawings of $32,466 for the financial
year to 30 June 1992. The
books to May 1993 show drawings for the financial year to date of $10,222 to
the plaintiff (Exhibit 14).

  

   The plaintiff acknowledged that he may have been observed attending at the
Italo Australian Club at around 10 am, assisting
in the lunch time trade of
the restaurant and then remaining at the club gaming until the evening trade,
when he would again assist
in preparing and serving food. He agreed that he
may have been observed remaining at the club until the late evening, and then
attending
the Casino, where he could be seen gaming until 6 am. He agreed that
he may have been observed with large sums of cash money when
gaming.

  

   Counsel for the plaintiff acknowledged that at the end of the case the
evidence did not establish the claim as particularised,
and submitted that the
matter should be dealt with on the basis of a buffer claim for both past and
future income loss. He submitted
that this should be a substantial sum.

  

   I would not, if I had found that the plaintiff's disc injury was accident
related,
have found the claim as particularised to have been made out. Nor
would I have been satisfied that the plaintiff was under a severe
degree of
disability in relation to his income earning activities. I would have been
satisfied that the plaintiff has continued since
the accident to engage in
entrepreneurial activities, which he has sought to conceal, in the restaurant
trade. While I would accept
that the plaintiff would not, as a consequence of
an accident related disc injury and subsequent surgery, be able to engage in
heavy
labouring type activities, or activities in the nature of the butchering
industry, I find that he abandoned that type of activity
as a consequence
first of his diabetes and then the muscle strain reported after two days as an
employed meat worker. I am not satisfied
on all of the evidence that the
plaintiff had been engaged in a highly profitable fish mongering business
which was cut short by
the accident.

  

   I would on this evidence have found a general buffer for past and future
income loss of $75,000 inclusive of
interest.

  

   In relation to out of pocket expenses, I was told that the total claim was
in the sum of $36,538.46. Of this, $10,605.01
has been paid by the insurer,
and is acknowledged as causally related to the accident. The balance of
$25,933.45 relates to expenses
attributable to the disc injury, which I have
found to be unrelated to the accident. I award the sum of $10,605.01, noting
that this
amount has been paid by the insurer.

  

   A Griffiths v Kerkemeyer claim was particularised. While an ongoing figure
was not established,
Counsel for the plaintiff urged that, given the evidence
as to the plaintiff's condition immediately after the periods of surgery
on
his back, an award in the sum of $10,000 to $20,000 as a discretionary buffer
would be appropriate. Had I found the disc injury
caused by the accident, I
would have made an award in the sum of $12,000. As it is, I am not satisfied
that the assistance which
members of the plaintiff's family did provide in the
immediate aftermath of the accident goes beyond the type of mutual assistance
described by the High Court in Van Gervan v Fenton [1992] HCA 54;  (1992) 175 CLR 327 so as to
establish a reasonable basis for a monetary award.

  

   It follows that I would award damages in
the sum of $56,550, noting that
the insurer has already paid $10, 605.01 of this sum by way of out of pocket
expenses.