Simonfi v Fimmel; Simonfi v Dowden & Anor [2000] ACTSC 54 (7 July 2000)

Last Updated: 19 October 2004

Simonfi v Fimmel & Simonfi v Dowden & Anor

[2000] ACTSC 54 (7 July 2000)

CATCHWORDS

DAMAGES - Assessment - Personal injury - Motor vehicle accident - No issue of principle.

John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Simonfi v Dowden & anor (1999) 140 ACTR1

No. SC 209 of 1992; No. SC 528 of 1998

Coram: Master T Connolly

Supreme Court of the ACT

Date: 7 July 2000

IN THE SUPREME COURT OF THE )

) No. SC 209 of 1992

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: DENNIS GEORGE SIMONFI

Plaintiff

AND: JANETTE McLAREN FIMMEL

Defendant

ORDER

Judge Making Order: Master T Connolly

Where Made: Canberra

Date of Order: 7 July 2000

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $31,630.

IN THE SUPREME COURT OF THE )

) No. SC 209 of 1992

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: DENNIS GEORGE SIMONFI

Plaintiff

AND: NICOLA DOWDEN

First Defendant

AND: SUNCORP INSURANCE & FINANCE

Second Defendant

ORDER

Judge Making Order: Master T Connolly

Where Made: Canberra

Date of Order: 7 July 2000

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $46,161.23.

1. 1. These two actions are claims for damages for personal injuries arising from two motor vehicle accidents. Liability was not in issue in either accident, and the matters proceeded before me as assessments of damages only. The first accident occurred on 12 January 1987 when the plaintiff's vehicle collided with a vehicle driven by the defendant Fimmell at Belconnen in the Australian Capital Territory. I will refer to this accident throughout these reasons as the first accident. The second accident occurred on 22 October 1994 when the plaintiff's vehicle collided with a vehicle driven by the defendant Dowden at Redcliffe, a suburb of Brisbane. I shall refer to this as the second accident. The action in respect of that claim was originally brought in the Queensland District Court, but was transferred to this Court pursuant to the Jurisdiction of Courts (Cross Vesting) Act (1987) by order of 23 July 1998. The matters were heard together, with evidence in each matter being evidence in the other. I set out my reasons in both actions together.

2. The plaintiff's claim is that, by reasons of the two accidents, he has sustained soft tissue injuries and subsequent psychological injuries to the point where, due to the inter-relationship between the physical and psychological injuries, he is now unable to work at all. The defendant's argument is that the plaintiff sustained at worst transient soft tissue injuries in both motor vehicle accidents, and that his claims of psychological injury are fabricated and exaggerated. The matter developed in to a long trial, with credit being squarely in issue. Although there are many medical reports in evidence in this matter, it is apparent that there have been different histories taken, and that the plaintiff, for whatever reason, is not a good historian. Doctors whose reports favour his claim have noted a tendency to exaggerate, and other doctors have been more blunt in their assessments as to the genuineness of his many symptoms and complaints. There is general agreement that his physical complaints are soft tissue in nature, and that the major disabling complaint is his psychiatric condition.

3. The matter proceeded to hearing in Canberra over three days in November 1999. At the conclusion of those hearing days it was apparent that a number of doctors in Brisbane would be required for cross-examination. An opposed application was made for that evidence to be taken by telephone, and I ruled (Simonfi v Dowden & anor (1999) 140 ACTR1) that the legislation providing for telephone evidence as it was then framed was defective. After a further directions hearing, the Court travelled to Brisbane to take that evidence on the basis that this would involve a cost saving to all the parties compared with bringing many specialist doctors to Canberra for two days.

4. After the hearing the High Court delivered its decision in John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36, which establishes that an Australian court hearing a matter involving a tortious act in another Australian law area should apply the law of the place of the accident, rather than the law of the forum jurisdiction, in determining liability and assessing damages. As addresses in this matter had proceeded on the assumption that damages would be assessed pursuant to the common law as it is understood to apply in the Australian Capital Territory, I listed the matter of Dowden for a further hearing on 30 June 2000.

5. At that hearing counsel agreed that the only difference applying the law of Queensland would make to the assessment of damages would be that a discount rate of 5% rather than 3% should be used in calculating any future loss.

6. The plaintiff was born in June 1950. He left school in 1966 after completing High School to Year 10. He worked for a while for a whitegoods manufacturer in the office, and undertook some accountancy training. He then worked for a period as a laboratory assistant, and undertook some further training. He then found employment for a time with the State Rail Authority of New South Wales. In 1969 he joined the New South Wales Police , and worked as a police officer for about 5 years before resigning in 1974. He says that he was disillusioned with police work. He had married in 1970, and for a period after leaving the police he worked in a family business conducted by his then father in law in the fast food industry . In about 1980 he moved to Queensland with his family, and did some work in real estate. In 1983 he commenced working on his own account as a commercial agent and private inquiry agent. His work was varied, including doorman and security type work, but it centred around debt collecting and repossession work. By the time of the first accident he had moved his principal place of business to South Australia and was working on debt collection and repossession for a television and electronics hire company. He was in Canberra doing some of this work at the time of the first accident.

7. In 1985 moved to Wollongong, and he was working his business there as well as in Sydney and Canberra. By the time of the first accident he also had repossession and debt collection work in South Australia. After the first accident the plaintiff continued in South Australia for a time, and then moved to Sydney, and later to Brisbane. As a consequence he has been seen by doctors in three States.

8. The plaintiff says that the repossession work was very remunerative, and claims that he was earning up to $3000 a week for this work. He acknowledges that he has never lodged tax returns disclosing such income, and indeed that no tax returns have ever been lodged in respect of the period 1985-1991, but he claims that this was due to fault on behalf of various accountants. No satisfactory records in the nature of bank statements or the like have ever been tendered to satisfy me that the plaintiff was in fact earning this type of income at this period, and I found his explanations for this quite unsatisfactory, particularly given the glaring discrepancies between his evidence in chief and certain interrogatories concerning his employment history.

9. Prior to the accident the plaintiff says that he was very fit, running daily and maintaining an interest in martial arts training. His son gave evidence to support this.

10. The first accident occurred as the plaintiff was doing a right hand turn into the car park at the Belconnen shopping centre. He was hit from behind and pushed into oncoming traffic. He said in evidence in chief that he heard a "massive bang" and then "remembered waking up off the passenger seat." He says that he recalls a woman screaming " Oh my God I've killed someone." Various descriptions of this first accident have been given to different medico legal and treating doctors over the years, and it has been described by some as a "horrific' accident. There have been claims that the plaintiff sustained a broken nose in the accident. The police attended the accident, and the police accident report recorded no casualties.

11. Mr Simonfi attended a Canberra general practitioner, Dr Booth, on the day of the accident. Her report says,

"Mr Simonfi stated he was the driver of a motor vehicle on 15 January 1987, and that he was wearing a seat belt. The car he was driving was hit from behind by another car and spun around, being hit again on the left side as it spun. He was not knocked unconscious, but complained of being sore all over. On examination, Mr Simonfi was alert, moving stiffly and had no skin lacerations.

Neck: There was no tenderness of the bones of the neck but the surrounding muscles of neck and shoulder were tender. All normal movements of the neck were limited, especially stretching the neck backwards.

Upper Spine : There was tenderness over the spines of the 3^rd and 4^th thoracic vertebrae in the middle of the upper back, tenderness of the muscles and reduced ability to twist around.

Lower Back : There was tenderness of the upper lumbar vertebrae and the muscles on the left of the back, plus very marked stiffness and limitation of normal movement, particularly bending sideways and backwards. There was also bruising to both ankles, the left hip and right arm."

12. Dr Booth did not have access to x-rays, and in her report gave a tentative diagnosis of soft tissue injuries. It is of significance that she took a contemporaneous history of no lack of consciousness, and recorded no skin lacerations, bleeding or broken nose or broken collarbone, which are all versions of the first accident that the plaintiff has given over the years. I find the contemporaneous note of the doctor that there were no lacerations particularly significant, as the plaintiff has repeatedly described himself as being covered in glass, and said that the other driver screamed that she had killed someone after the accident.

13. A few days later the plaintiff and a companion drove back to Adelaide in a rented van with the woman's children. The plaintiff says that he had bad pains in his neck and back and headaches, and he told a doctor that he finished the journey in the passenger seat, and had difficulty in returning to work. He conceded in cross-examination that he did all of the driving himself . Ms Parker, his then companion, resided with him for about a year after the accident, and he conceded that he had been in recent contact with her. She was not called to give evidence, and counsel for the defendant invited me to draw the inference that her evidence would not have assisted the plaintiff. It seems to me that this is a proper case to draw the Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 inference, as there is a marked discrepancy between the contemporaneous medical reports and the plaintiff's subsequent claims of profound disability, and Ms Parker would have been able to give evidence of observations of the plaintiff over this first year.

14. He attended an Adelaide general practitioner, Dr Sieben, on 21 January, and complained of multiple aches and pains in his neck, back, arms, legs, hand and groin. Dr Sieben took a history and said "Mr Simonfi was uncertain about any loss of consciousness, and it appeared likely there had been none." He had the benefit of x-rays, which showed no abnormalities, and Dr Sieben said in his report of 14 December 1987,

"I believe Mr Simonfi suffered significant soft tissue trauma, including multiple strains and bruising. I would have anticipated a recovery time of several weeks, possibly a few months, depending on the severity of the neck and lower back injuries.."

15. He saw Dr Ping at the same practice from March 1987. Dr Ping in his report of December 1987 said that from March he was placed on anti-inflammatory medication and referred for physiotherapy. He continued to complain of neck and back pain through the first half of 1987, and Dr Ping referred him to an orthopaedic surgeon, Dr Viiret.

16. Dr Viiret reported to Dr Ping on 6 August 1987. In this report he takes a history which says, "He felt that he may have had some minor loss of consciousness." This is contrary to the contemporaneous report of Dr Booth, and the police report. I find that there was no loss of consciousness. Dr Viiret's history also states the plaintiff, "was continuing to do his normal work", which is contrary to his evidence at the hearing. Dr Viiret arranged additional x-rays, and says in his report to Dr Ping that, "I reassured Mr Simonfi that these musculo-ligamentous strains would continue to settle down with further time." In a report to the plaintiff's then solicitors, Dr Vikret said in January 1988 that the plaintiff, "remains fit for his normal work activity."

17. Dr Ping's report states that the plaintiff continued to complain of pains, and that the pains seemed to be spreading. He said, "In view of Mr Simonfi's total lack of progress, he was referred to Mr Paul Carney, a consultant neurologist" in September 1987. His reports, to Dr Ping and to another solicitor acting for the plaintiff, says that there was no neurological abnormality, and he concluded that the plaintiff was suffering from soft tissue injury, which would be assisted by appropriate exercise programs. Dr Carney also took a history of momentary loss of consciousness in the accident. Dr Ping has recorded full ranges of movement in the neck and lower spine in March 1987.

18. The plaintiff says the he was becoming disoriented at work due to his continuing migraine headaches, and that he would get lost while going out on jobs. He said in his evidence that because of his deteriorating health he was unable to continue with the debt collection work in South Australia. Counsel for the defendants tendered a letter of instructions which he wrote to a firm of Brisbane solicitors on 26 April 1988 instructing them to commence an action against Canberra Televisions Ltd for breach of contract, alleging that the company failed to comply with a contractual obligation to supply work to the plaintiff. In that letter he alleges that, but for this breach of contract, he would have earned in the four years from 1987 the sum of $3,948,000. In that letter he does not make any reference to difficulties he now claims he had in undertaking the work due to injuries or disabilities. In cross-examination the plaintiff acknowledged that if this claim had proceeded he would have given sworn evidence that he was, from late 1986 to late 1990, "ready willing and able to perform your part of that contract for the whole of that four year period." He acknowledged that he would have said this, "Because the pot of gold at the end of that rainbow was $4million as you saw it." When it was put to him that that evidence would have been quite inconsistent with his evidence in this case that his injuries prevented him from continuing with repossession work, he said, "I probably would have been able to explain it in more detail." I conclude from this evidence that the plaintiff is not a witness of truth. Another example of a preparedness to give untrue evidence is found in this letter, as the letter states that, because of the alleged breach of contract, he was unable carry through with a plan to employ staff. The plaintiff had tendered an advertisement from an Adelaide newspaper for staff in support of his version of events that his business was going very well but his health prevented him from continuing. He acknowledged that the version of events in the solicitor's letter was contrary to the version he had given in evidence.

19. In any event, Mr Simonfi went to Sydney in late 1987, and was working for a time as an employee of a private investigations/debt collection firm. He was doing mobile security patrol work. He says that he continued to be in pain. In February 1988 he says that he collapsed at his home, and there is a report of his attendance at the Campbelltown Hospital on 17 February 1988 which states that he had difficulty in walking, and was distressed with pain in the lumbosacral spine. No abnormalities were detected on x-rays, and he was referred to an orthopaedic surgeon.

20. In 1988 he returned to live in Brisbane. He says that he was in constant pain, and was depressed at his inability to work. In 1989 he developed problems with his ears, and he has had operations performed to attempt to correct these problems. Dr Hodge, an ear nose and throat surgeon, has reported that this condition is unrelated to the motor vehicle accident. There have been histories provided by the plaintiff to doctors which have claimed that he was unconscious in the first accident, and that he hit his head and even sustained a broken nose. Dr Hodge was asked whether a broken nose could have contributed to his hearing problems, and has reported that he would need evidence that there was such an injury. I am satisfied that there was no such injury, and that the plaintiff's hearing problems are totally unrelated to the accident. I find, however, that the plaintiff has over the years embellished the history of the first accident to suggest that he hit his head and sustained facial injuries, which I find to be untrue.

21. In mid 1988 the plaintiff came under the care of Dr Hall, a Brisbane consultant psychiatrist. His report of February 1991 states that the plaintiff was referred to him because of depression and aggressiveness following "a number of stresses and problems following a motor vehicle accident." He diagnosed a post traumatic stress disorder and an adjustment disorder with depressed mood. Dr Hall treated the plaintiff until 1989, and was asked to provide a medico legal assessment in December 1997. He again examined the plaintiff, and took a history of his various problems, including the second motor vehicle accident. He concluded,

"In my opinion, Mr Simonfi has a dysthymic disorder. This is mostly likely a result of constitutional factors and adverse life experiences including the physical injuries and consequences of his accident on 15 January 1987. Whilst there is some possibility of his having a post traumatic stress disorder persisting from the accident in 1987 I would think that his more recent difficulties are more likely to be a part of a dystymic disorder."

Dr Hall noted that "consciously or unconsciously, Mr Simonfi may be motivated to exaggerate his disabilities."

22. There are many comments in the medical reports concerning the plaintiff's tendency to exaggerate his difficulties. Dr Blue, an orthopaedic surgeon who has examined the plaintiff for the defendant, is perhaps the most blunt. In his report of October 1992, which takes a history of his being knocked unconscious in the first accident, he said

"In 20 years of medico-legal examinations I would regard this as perhaps the most exaggerated claim that I have had the misfortune of witnessing. There is no clinical basis for the multitude of his symptoms and claims. I have no doubt on this clinical presentation and examination that the incident of January 1987 has caused no permanent disability nor predisposition towards same. I could not find one single clinical abnormality to support the multitude of symptoms claimed.....His work absence had no direct relationship to the incident of January 1987, whatsoever. Despite his normal physical presentation I would regard his prognosis as hopeless due to his poor work ethic."

23. It seems that the plaintiff did not work on his return to Brisbane in 1988, and during this period he was in receipt of Social Security benefits. He came into an inheritance in 1990 and in 1991 he purchased a travel agency, Simon's World Travel, which was situated at Margate, a suburb of Brisbane. Mr Simonfi worked in the travel business himself, as well as having an employee, and he says that he also did some private investigations work. He says that the business was doing well, but that through 1992 he was unable to spend much time in the business due to his disabilities. In l992 his son was killed in a tragic horse riding accident, and this no doubt also had a severe impact on him. In late 1993 the travel agency closed down, apparently with debts to clients for travel services paid for but not supplied. Mr Simonfi has told various doctors that much of the trouble with the travel agency was due to his then partner misappropriating funds, as well as her drinking problems. Ms Capewell gave evidence that she was in fact the owner of the travel agency, but that Mr Simonfi used to sit in the office doing little work. She said that she was the registered travel agent, and Mr Simonfi had never held a licence. Documents tendered by the plaintiff from the Queensland Office of Fair Trading showed this claim to be untrue, and I am satisfied that Ms Capewell has never held a licence in Queensland as a Travel Agent, and that Mr Simonfi did hold a licence until it was suspended. The documents also show Mr Simonfi as the registered owner of the business. She also said that the plaintiff was able to do heavy tasks, and said that he had moved a heavy safe on one occasion after a burglary. In cross-examination Ms Capewell admitted that she had been convicted for an offence of dishonesty. It was apparent that there was considerable ill will between Ms Capewell and Mr Simonfi. I do not accept her evidence that she owned the travel agency - which was never put to the plaintiff, and I do not accept her evidence as to Mr Simonfi's activities at this time.

24. There are several inconsistencies in Mr Simonfi's evidence relating to the travel agency business. He has provided various versions in the statements of particulars as to the profitability of the business. In the claim filed after the second accident (exhibit 7) the plaintiff said that he earned a minimum of $50,000 a year from the business. In an answer to interrogatories he said that the travel agency business lost money. He further admitted, when confronted with documents sworn in proceedings taken against him by the Queensland Travel Compensation fund, that he had taken clients money in return for travel services which he never supplied. There are no contemporaneous banking records.

25. After the collapse of the travel agency Mr Simonfi found work as a travelling salesman selling education bonds for the Australian Independent Friendly Society on an agency basis. There have been various versions from the plaintiff as to the profitability of this venture. In interrogatories he claimed average net earnings of $1300 per week. He acknowledged this was contrary to his tax return for the year to the end of June 1995 which disclosed a taxable income of $354 per week. In evidence in chief he said he was earning, "anything between $1000 a week probably up to $3000 a week." He was unable to satisfactorily explain these discrepancies. Documents tendered in his case show that he earned $17,157 from 1 July 1994 to 6 November 1994, and $ 11263.60 from 7 November 1994 to 30 June 1995. This was a gross figure, not adjusted for any expenses and tax. In this enterprise he would drive his car and attend to potential clients who had made telephone enquiries about the product, sometimes involving country travel. It was during these activities that he sustained the second accident on 22 October 1994 when the defendant Dowden failed to stop at a stop sign at the intersection of Elizabeth Avenue and Duffield Road Redcliffe and came into collision with the plaintiff.

26. Mr Simonfi described the impact as severe, and said his car was written off. He says he bashed his head into the windscreen and broke his teeth. He complained of pain in his neck, face, hands , right knee and lower back. The plaintiff said in his evidence that the accident occurred on a Saturday night, and he attended his general practitioner on the Monday morning. In his report of 18 November 1994 Dr Butlling said that the plaintiff attended that morning, having previously seen his dentist. He said " On examination there was generalised reduction in the range of movement of the cervical spine. Cervical facet joints were tender to palpitation. He was tender to palpation over the right parietal bone, with slight subcutaneous swelling but no bruising." Dr Buttin's conclusion was that,

"Mr Simonfi appeared to have sustained a minor head injury and cervical strain in this motor vehicle accident. He was referred to Yvonne Strydom for physiotherapy for his neck. The importance of early physiotherapy for this condition was emphasised."

27. In a report tendered by the defendant from Dr Hopking, an orthopaedic surgeon, a history is taken of the plaintiff noting bleeding from his ears after this accident. He also told Dr Hopkins that he sustained a fractured cheekbone in the first accident, which I find to be untrue. No contemporaneous observation was made by his general practitioner of any bleeding ear , and I do not accept this claim, but I note that it again shows an attempt to create symptoms in order to attempt to link his ongoing hearing problems to either accident. Again I am driven to the conclusion that the plaintiff has a tendency to be dishonest in presenting his history to examining doctors.

28. A report from his dentist, Dr Davis, confirms that he attended on 24 October complaining of sensitivity to cold and pressure in the mouth, more on the left side. The dentist records that the plaintiff said he, "had bashed his teeth together as a result of the accident." On examination Dr Davis formed the view that there was a possible cracked cusp syndrome, and that he would further examine the plaintiff after a week. This examination confirmed a crack in teeth 36, 37, and later a crack was found at 16. Dr Davis advised that crowns would be the appropriate treatment.

29. I accept that these injuries to the plaintiff's teeth were caused by the accident. However, I note that Dr Davis took a history of the plaintiff bashing his teeth together, not hitting his head, and that the cracks were difficult to diagnose. Later doctors have been given a picture of the plaintiff striking his head against the car with obvious broken teeth. A psychiatrist, Dr Tucker, has repeatedly described the plaintiff having been in two "horrific" motor vehicle accidents. I find that both accidents were relatively minor involving soft tissue injuries only, as well as minor cracks to his teeth. An orthodontist has subsequently diagnosed a degree of cross bite which he says could be due to the motor vehicle accident, and in the absence of any contrary dental evidence I accept this opinion.

30. The plaintiff says he took six weeks off work after this accident, and then tried to resume his sales activities. He says he took increasing amounts of time off. He ceased working for the Friendly Society in September 1995, and said that was because, "they made it reasonably plain that I wasn't pulling my weight and it'd be better if I sort of left." He has not worked since, and has increasingly complained of neck and back pain, as well as psychiatric symptoms. He agreed in cross-examination that within two months of the second accident he was able to undertake a five week trip to the United States. There was a subsequent accident in May 1999, which is not the subject of these proceedings, involving the plaintiff riding a motor bike. He acknowledges that until this third accident he rode a pushbike regularly for exercise, often for up to 32 kilometres. Various doctors who have obtained this history have commented on the incongruity between his claimed symptoms and prolonged bike riding, and regular riding of a motorbike including drives of some 28km to Brisbane city from his home.

31. He received some compensation payments following the second accident, but in 1996 was declared bankrupt, due to debts flowing from the collapse of the travel agency business. Notes and reports from various psychiatrists show that his financial problems have been a major concern over recent years.

32. Despite reports and investigations from many orthopaedic surgeons and neurologists over the years, there is no evidence of anything beyond soft tissue injury arising from the motor vehicle accidents. Doctors who have reported for the defendant have commented on gross exaggeration in the plaintiff's claimed levels of disability. Doctors who have reported for the plaintiff have made similar observations.

33. Dr Ringrose, a Wicham Terrace consultant physician, examined the plaintiff and reported in August 1996. He said,

"I must say I find him extremely difficult to assess. The absence of neurological signs is completely out of keeping with the amount of pain and disability present. He has generalised muscle stiffness and I think this is probably the result of his being very tense and uptight. Whether there is a degree of over statement of symptoms in an attempt to improve his chances in any legal action is impossible for me to assess. I can only say that the signs are negligible and the complaints are multiple. In my experience this tends to suggest an over statement of symptoms."

Dr Ringrose expressed these views before he had access to an MRI, and on examination of the 1997 MRI noted degenerative changes to the spine and said

"I do not think any of these changes will have any significant effect on him. They are minor. They are part of the normal degenerative process, perhaps aggravated slightly by the motor accident but I would not expect them to be symptomatic at this stage."

34. Dr Salzman, a neuropsychologist, examined and reported for the plaintiff in August 1996. I should note at the outset that he took a history of the plaintiff fainting in the first accident and bleeding from the ear in the second accident, which I find to be an embellishment. He said,

"The results of Mr Simonfi's neuropsychological assessment suggested that his symptoms are far in excess of what would be expected following the accidents in which he was injured."

35. Dr Gavaghan, a Canberra consultant physician, reported for the plaintiff in November 1997. He took a history of the plaintiff having a transient loss of consciousness in the first accident, which I find to be untrue. He also took a history of the plaintiff hitting his head on the windscreen in the second accident which I find is untrue. Dr Gavaghan noted,

"Physical examination is very difficult. He does not appear to have reliable, focal, neurological findings...He claims to have incapacitating pain in his lower lumbar region preventing him from bending or squatting but his attention is diverted on can get him to undertake movements which previously he had felt were impossible because of pain."

In a subsequent report of September 1998 Dr Gavaghan noted,

"It is very difficult to summarize all of his numerous complaints and that summary is made all the more difficult because he exaggerates and embellishes many of his symptoms."

36. Dr Prior is a Brisbane psychiatrist who examined the plaintiff and reported to the Queensland workers compensation authority in November 1997. His report was tendered in the plaintiff's case. Dr Prior found that the plaintiff was suffering from Post Traumatic Stress Disorder, but he noted,

"It must be stated that his subjective complaints of pain and psychological distress in the aftermath of both accidents outweigh that which I observed objectively during the interview. Therefore although he subjectively describes his problems at the severe end of the spectrum, objectively they lie in the mild to moderate end. However the psychological investment he has in these conditions is very likely to impede him from making a full recovery."

37. I accept that there is some evidence of degenerative changes to the plaintiff's spine, but I am satisfied on all of the evidence that these are not trauma related. I note that his most recent general practitioner, Dr Flegg, reported in November 1999 that,

"The main limiting disability in respect of his capacity to work would be the debilitating effect of the post traumatic stress disorder and to a lesser extent his inability to do manual work, due to his painful lumbar spondylosis."

38. Dr Scott, a Canberra occupational physician, examined and reported for the plaintiff in December 1997. He took a history of the plaintiff losing consciousness in the first accident, which I find to be untrue, and sustaining a fractured nose and jaw, which is also untrue. Dr Scott accepted the plaintiff sustained soft tissue injuries which continued to impact on his level of disability.

39. Dr Curtis, a Wicham Terrace orthopaedic surgeon, has provided the most recent reports on the plaintiff's spinal problems. I note that he took a history of the plaintiff being unconscious after the second accident, which appears to be the first claim of this nature, which I find to be untrue. He accepts the plaintiff's claims as to symptoms, and notes the MRI scans show a degree of degenerative changes. His view is that,

"the current level of impairment is attributable to the motor vehicle accidents of the 15.1.87 and the 22.4.94. It is possible that a portion of his current condition may have arisen in any case from the natural progression of the pre existent degenerative changes, although it is impossible to say when such changes would have come to light and to what extent they would have done so."

40. Dr Landy is a Brisbane consultant neurologist who has provided three reports to the defendant. He confirms the lack of neurological signs, but added in relation to his examination of May 1998

"Neck: when formally tested, movement was limited to about 30 degrees in all directions, however when he was distracted during other clinical examination, there was free, full and quick movements of the neck."

41. Dr Anderson is also a Brisbane orthopaedic surgeon, and has examined the plaintiff a number of times for the defendant. His views are summarised in his report of February 1991 where he said,

"On clinical grounds this man's basic problem is one of a gross degree of hysterical reaction to his accident. The long standing nature of his symptoms, their diffuseness, the remarkable sensory changes that are not anatomical in their distribution, the inappropriate responses on examining his low back where his complaints were of low back pain all leave me with no doubt that this is the major problem."

42. Dr Hopkins, consultant orthopaedic surgeon, reported to the defendant in December 1998 that:

"It would seem quite clear that Mr Simonfi did sustain some minor soft tissue strains to his neck and back in the motor vehicle accident as described. However, it is also quite clear that he had sustained injuries in a motor vehicle accident some years previously in 1987, following which he complained of quite obvious longstanding and ongoing bizarre symptoms of a nature which were not organic in origin."

He noted a greater range of movement to both his neck and lower back than claimed, and formed the view that Mr Simonfi was exaggerating his symptoms.

43. I find that in both motor vehicle accidents the plaintiff sustained soft tissue injuries to his neck and back. I find that neither accident caused any more substantial damage, and find that the spinal changes observed on MRI scans are degenerative, and not traumatic, in origin. I find that the plaintiff has consistently exaggerated his neck and back disabilities in the period since the accident, and note that Dr Ping had recorded full ranges of movement in the months after the original accident.

44. I turn now to the psychological sequelae of the accident. The plaintiff said that his emotional distress became apparent to him within about four or five weeks of the first accident. There is no reference to complaints of emotional distress in the treating doctors in the months after the accident. He first consulted Dr Hall, a Brisbane psychiatrist, in June 1988. Some six weeks before this consultation his de facto relationship with a person he described to Dr Hall as his fiancee had broken up, and he agreed in cross-examination that he was very distressed following the end of this relationship.

45. Dr Hall examined and treated the plaintiff between June 1988 and March 1989. In a report of February 1991 he concluded that the plaintiff had a post traumatic stress disorder and an adjustment reaction with depressed mood. In a later report of December 1997 he changed his diagnosis and said,

"In my opinion, Mr Simonfi has a dysthymic disorder. This is mostly likely a result of constitutional factors and adverse life experiences including the physical injuries and consequences of his accident on 15 January 1987. Whilst there is some possibility of his having a post traumatic stress disorder persisting from the accident in 1987 I would think that his more recent difficulties are more likely to be part of a dysthymic disorder."

Dr Hall agreed in cross-examination that an accurate history is crucial to a psychiatric diagnosis, and that the accuracy and reliability of a person's history depends upon that person's credibility. As I have indicated elsewhere in these reasons, the plaintiff is not a reliable or credible historian, and to this extent I am of the opinion, as urged upon me by counsel for the defendant, that there is a cloud over all of the psychiatric evidence.

46. In 1989 the plaintiff was in a commercial dispute with Westpac Bank which resulted in a judgment against him in the order of about $5000. A letter was written on his instructions by a litigation assessor by the name of John Currie to the bank requesting time to pay, on the basis that the plaintiff had a pending compensation claim, being the action arising from the first accident. The letter says:

" I enclose a copy of my client's statement which explains his clear right to damages and extent of injuries His present injuries include:

1. Back injury and whiplash

2. Nerve lesion on left elbow

3. Deafness which leaves him with limited hearing

4. Extreme headaches."

There was no reference in this letter, which the plaintiff agreed was written on his instructions, to any psychological or emotional sequelae from the accident, and yet it is his case that he has been suffering from these symptoms from at least the middle part of 1987. No satisfactory explanation for this was forthcoming. I note that at this time he was maintaining that his hearing problem, which doctors have reported to him to have been totally unrelated to the motor vehicle accident, was so related, and I observe that at various times he has given doctors totally untrue histories of bleeding from the ears and fractures to his jaw and nose in an effort , I find, to try to establish such a link.

47. Dr Tucker is another Brisbane psychiatrist who has seen the plaintiff on a number of occasions. In June 1997 he expressed the view that the plaintiff

"is undoubtably suffering from mild to moderate chronic post traumatic stress disorder caused by the two major motor vehicle accidents in which he was involved- and thought he might die on at least one occasion."

48. In a subsequent report of November 1997 he described the 1987 accident as "horrifying", and said "Both of these MVA's were horrific, terrifying and life threatening for Mr Simonfi." This description seems excessive on the objective evidence surrounding both motor vehicle accidents. Dr Tucker did not have a precise note of the description Mr Simonfi gave him of the circumstances of the accidents, but agreed in cross examination that the plaintiff told him that in both accidents he "experienced, witnessed or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others", borrowing from the definition for the preconditions for Post Traumatic Stress Disorder used by the American Psychological Association in the Diagnostic and Statistical Manual fourth edition. He agreed that he relied on the accuracy of Mr Simonfi's history. Dr Tucker said that it did not matter to his opinion that the plaintiff had made no complaint of emotional distress for some time after the accident.

49. Dr Tucker said it made no difference to his diagnosis that the plaintiff drove a van to Adelaide shortly after the first accident, or that he continued for many years to drive extensively, including on country trips and, according to Dr Tucker, regularly at speeds well in excess of the speed limit.

50. Dr Prior, whose report was referred to earlier in these reasons, found that the plaintiff complained of many of the symptoms which meet the criteria of post traumatic stress disorder. He agreed in cross-examination that Mr Simonfi presented for examination claiming expressly to be suffering from post traumatic stress disorder. He agreed that his diagnosis was dependent upon the plaintiff giving a truthful account of his symptoms, and agreed that he had himself adverted to the plaintiff's tendency to exaggerate symptoms. He nevertheless stood by his diagnosis of chronic post traumatic stress disorder, although he agreed that when the litigation process ended the condition would gradually improve, but never fully resolve. He said that he had assessed the plaintiff as having a 10 per cent disability, which he expected would resolve to " the sort of 5 to 7 ½ per cent disability."

51. The defendant tendered reports from psychiatrists Dr Sydney Smith and Dr Knox. He gave each doctor a list of symptoms of post traumatic stress disorder. Dr Sydney Smith took a history of an earlier doctor, whose report is not in evidence, having given Mr Simonfi in 1995 a list of the diagnostic criteria for post traumatic stress disorder. Dr Sydney Smith opined,

"this is a quite irresponsible way of making an objective diagnosis of such a disorder, especially in a man such as Mr Simonfi who is so likely to fabricate disorder. If he did not know the complete range of symptoms of the disorder before seeing Dr Tym he certainly knew them now. It renders all subsequent attempts to diagnose the disorder invalid."

52. In cross-examination he agreed that Drs Hall and Crompton had seen the plaintiff and made diagnoses of post traumatic stress disorder before the plaintiff had seen this list of symptoms. He agreed that, if the plaintiff is to be believed in his list of symptoms, he is properly diagnosed as continuing to suffer from post traumatic stress disorder.

53. Dr Sydney Smith said that the significant delay in the reporting of any symptoms of emotional stress tended to rule out the 1987 accident as a cause of post traumatic stress disorder. He agreed that there were many instances of delays of years in the making of a diagnosis of PTSD, but said that there should not be a significant delay in the exhibition of symptoms. Dr Sydney Smith's conclusion in his long report of September 1998 was,

"Since the 1994 accident he has complained again of spinal pains indicating that he may have suffered an exacerbation of any pre existing pathology. However, it is also evident that he has again exaggerated and fabricated disability and the available evidence indicates that this has probably been mainly on a conscious, malingering basis. He also may have suffered a recurrence of Post Traumatic Stress disorder symptoms that either arose solely from the 1994 accident or represented an exacerbation of the symptoms arising from the 1987 accident. He has also been depressed. Again it is likely that other factors, such as his being declared bankrupt in 1996 and the death of a girlfriend in an accident have contributed."

54. In his later report of November 1999 Dr Sydney Smith noted that the plaintiffs regular use of a cycle, motorbike and car indicates that he has overcome any phobia associated with driving, and that this suggests an absence of PTSD. He said,

"The available evidence thus indicates that in recent years Mr Simonfi's emotional disturbance has mainly constituted an Adjustment Disorder with mild to moderate anxiety and depressive symptomatology. However, this has centred on his financial predicament and relationship difficulties and has probably been, in the main, caused by them."

Dr Sydney Smith also was critical of high levels of pain killers being consumed by Mr Simonfi.

55. Dr Knox saw the plaintiff for the purposes of a medico legal assessment and report in April 1999. He said,

"I do not believe Mr Simonfi suffers from major Depression. He was spirited and angry in his presentation rather than flat and depressed. I do not doubt however that he is unhappy and feels himself `depressed'....... Despite me repeatedly encouraging Mr Simonfi to tell me of all his psychological difficulties in recent years, he did not mention recurrent intrusive and distressing recollections of either of his motor vehicle accidents. His focus was on his physical symptoms and the general disappointments in his life arising out of his accident and other business problems. I note that several doctors have diagnosed Post Traumatic Stress Disorder on Mr Simonfi's part. While it is not reasonable of me to challenge the opinion of psychiatrists who saw Mr Simonfi some years ago, when I did not, I do not believe that at this time he continues to suffer from Post Traumatic Stress Disorder. I do, however, accept that there is an Adjustment Disorder arising out of multiple problems affecting this man's physical and mental health, and financial circumstances during the last 12 or so years."

56. Although various doctors have taken a history of complaints from the plaintiff which meet the criteria for Post Traumatic Stress Disorder, counsel for the defendant argued that, in his evidence in chief before this court, the plaintiff fell short of such descriptions. His evidence following the first accident was that he was "dissociated from" himself (Transcript p26 at 10-11), and that through 1987 he "was becoming disoriented and quite aggressive "(Transcript p28 at 18-20). He did not in my view give evidence in the context of the accident scene which proves or even suggests "intense fear, helplessness, or horror", as is required for a diagnosis of PTSD.

57. There was no evidence from the plaintiff which supported the history taken by various doctors of a fear of driving. He referred to some back pain in driving to Adelaide, and problems of back pain and memory loss in respect of directions in his security work in both Adelaide and Sydney. When asked about his capacity to drive in 1990 he referred only to physical problems (Transcript p 36 at 11-13). A long term friend of the plaintiff, Mr Bayer, gave evidence that although the plaintiff did a lot of driving he had back pain and used a special seat cover. He was asked "apart from reference to his back pain, he never expressed any concern about driving motor vehicles, did he", and answered, "Not that I can recollect" (Transcript p 210 at 5-10).

58. Counsel for the defendant submitted that the plaintiff's failure to give evidence in this case that matched the various claims made to psychiatrists meant that, pursuant to the principle laid down by the High Court in Ramsey v Watson (1961)108 CLR 642, he had failed to prove his case. Mr Greive said with respect to the High Court that the principle there stated, that "if the man whom the physician examined refuses to confirm in the witness box what he said in the consulting room, then the physicians opinion may have little or no value if a part of the basis of it is gone"(at 649), is really a restatement of basic principle that it is for the plaintiff to prove, on the balance of probabilities on credible evidence, the case they have put. In this case the plaintiff has put forward a series of medical reports that state that he satisfies the criteria for Post Traumatic Stress Disorder. Each of the experts conceded that in making that diagnosis they depend on the credibility of the history of symptoms given to them by the plaintiff.

59. As is apparent from what has gone before in these reasons, I found the plaintiff to lack credit. Much of his evidence was contradicted by earlier statements to doctors, and by answers to interrogatories. His dismissal of false interrogatories, and his concession that had he proceeded with his court case against Canberra Television he would have given sworn evidence that he was ready willing and able to fulfill his contract for repossession work in the period 1987-1990 were most damning to his reliability as a witness of truth. His failure to adequately explain the failure to lodge tax returns was unsatisfactory. His attempts to explain away many of the internal inconsistencies in his various versions of the facts given to doctors over the years was unconvincing. The pattern of embellishment of the history, in regard to being unconscious after the first accident, and claims of bleeding from the ears and fractures to the nose and jaw, I find to be mere dissembling.

60. I am not satisfied, on the balance of probabilities, and on credible evidence, that the plaintiff sustained Post Traumatic Stress Disorder as a consequence of either accident. I make this finding on the basis both that his evidence in chief did not match the claims made by him over the years to the doctors, and also on the basis that I am not satisfied that the claims he has been recorded as making to the doctors were truthful.

61. It follows that I assess the plaintiff on the basis of two instances of soft tissue injury only.

62. The principles to be applied in determining compensation in personal injuries cases have recently been summarised by McHugh J in Nominal Defendant v Gardikiotis [1995] HCA 56; (1996) 186 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 sim which will put the plaintiff, so far as in 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'."

63. In relation to general damages, I find in each case that the accident resulted in soft tissue injuries only. I find that he was able to display a full range of neck and back movement to his Adelaide treating general practitioner within months of the first accident, and indeed was able to drive van to Adelaide by himself within days of the accident. I am satisfied that the soft tissue injuries caused a degree of stiffness and pain that resolved over a period of months in both instances . In respect of general damages, I would award the sum of $20,000 in the case of Fimmel which with interest amounts to the sum of $25,390.

64. In the case of Dowden there is the additional matter of the damage to the plaintiff's teeth. I accept that he did strike his teeth together in the impact, as he told the first doctor and dentist. I do not accept his later claims of striking his head on the side of the car. I accept that this did cause the fractures of the teeth which were found on close examination, and that this did require rectification. I would award the sum of $33,000 in this matter, which with interest amounts to the sum of $36,757.

65. I find that the plaintiff was able to get back to his activities shortly after each soft tissue injury. The state of the evidence in respect of his economic capacity is quite unsatisfactory, given the absence of taxation or banking records in support of his claim of earnings just before each accident in the order of $3000 per week. I have referred earlier in these reasons to the many contradictions in the plaintiff's evidence at various times in respect of his earnings. While counsel for the defendant submitted that in the absence of any clear evidence I should make no award, I am satisfied that the plaintiff's soft tissue injuries that were caused by each accident would have had some impact on his earning capacity for a period of some months after the accident. I award the sum of $3000 in respect of each period, which with interest amounts to $5740 in the case of Fimmell and $3840 in the case of Dowden.

66. I am satisfied that the accident related effects have now passed, and I make no award in respect of future economic loss.

67. Out of pocket and medical expenses were claimed in both matters . In the matter of Dowden this was claimed in an aggregate sum of $20,968.25. It follows from my finding that the plaintiff sustained soft tissue injury to his neck and back only in both accidents that I am not prepared to award this sum, which relates to years of treatment for ongoing complaints of back and neck pain and complaints of psychological difficulties. An award of $500 in respect of the Fimmel claim seems to me to be appropriate in the circumstances to cover immediate care needs for soft tissue injury.

68. In respect of the Dowden claim there is a larger out of pocket claim reflecting ongoing medical and incapacity payments made by WorkCover Queensland. Of these I am satisfied that the sum of $5,564.23 covering his initial medical consultations following from this accident and the cost of the dental work and some radiology is on the basis of my findings attributable to the actions of the tortfeasor, and I award this sum only. I am not satisfied that in either case any future medical expenses are appropriate.

69. An extensive Griffiths v Kerkemeyer claim was particularised in each case but was not proceeded with.

70. This amounts to an award of $31,630 in the case of Fimmell and $46,161.23 in the case of Dowden, which I award. I will hear the parties as to costs.

I certify that the seventy (70) preceding numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly.

Associate:

Date: 7 July 2000

Counsel for the Plaintiff: Mr G Parker with Mr R. Mildren

Instructing Solicitors: Barker Gosling

Counsel for the Defendant: Mr D Grieve QC with Mr M McDonogh

Instructing Solicitors: Phillips Fox

Dates of hearing: Canberra: 15, 16, 17 November

12 April 2000, 30 June 2000

Brisbane: 10, 11 April 2000

Date of judgment: 7 July 2000