Bouyachi v Damcevski [2004] ACTSC 20 (20 April 2004)

Last Updated: 23 April 2004

MICHAEL BOUYACHI v PETER DAMCEVSKI

[2004] ACTSC 20 (16 April 2004)

DAMAGES ASSESSMENT - personal injury - soft tissue injury - aggravation of degenerative condition - no issue of principle.

No SC 375 of 2003

Judge: Connolly J

Supreme Court of the ACT

Date: 16 April 2004

IN THE SUPREME COURT OF THE )

) No SC 375 of 2003

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: MICHAEL BOUYACHI

Plaintiff

AND: PETER DAMCEVSKI

Defendant

ORDER

Judge: Connolly J

Date: 16 April 2004

Place: Canberra

THE COURT ORDERS THAT:

1. There be judgment for the plaintiff in the sum of $19,463.17.

1. This is a claim for damages for personal injuries arising from a motor vehicle accident which occurred on the morning of 17 December 1999 at the intersection of Bindubi Street and Belconnen Way in the Australian Capital Territory. The plaintiff, who is now 63 years of age, alleges that at 7.45 on that morning he stopped his van at a red light and was struck from behind by the defendant's sedan. The defendant admits this allegation, and the breach of duty, so the matter proceeded by way of an assessment of damages only.

2. The plaintiff acts for himself. It is apparent from the documents on the court file that he has at different times engaged three different firms of solicitors, but he insists that they did not advance his interests, and he wishes to act alone. The documents that would normally constitute the pleadings in this matter are not in regular form, but the defendant has not taken issue from this. At a directions hearing on 1 March 2004 I cautioned the plaintiff of the difficulties in proceeding to a hearing on such a matter without legal assistance, but he insisted that he wished to proceed. At that stage there had not been appropriate service by the plaintiff of expert medical reports. I explained to the plaintiff that he had to provide the defendant, well in advance of the trial, with any expert opinions on which he would rely. A bundle of material was handed over, and at the hearing it emerged that this contained most, but not all, of the material on which he sought to rely. While there was some material that had not been served, this did not, it seemed to me, prejudice the defendant, and I allowed the plaintiff to tender all of the medical material on which he sought to rely.

3. The plaintiff alleges that as a consequence of the accident he sustained brain damage and neck and spinal injury, rendering him permanently unable to continue with what he says was a business that he ran at the Belconnen markets for 52.5 hours a week. In support of his claim he tendered various medical reports which, while provided originally to solicitors acting for him, cast serious doubt on the truthfulness of his claims. He was unable to provide any taxation or banking records showing the nature of his business, despite specific requests and subpoenas. He admitted that he had been on an invalid pension continuously since about 1991. Although he had told various doctors that he worked long hours at the market and earned, on one version, $800 per day, there was simply no material to support this claim. He sought to tender banking records, but only dating from 2000, after the accident, and a bundle of photocopies of what appeared to be receipts for various hardware items which he said showed that he had stock for his stall. This is all that such evidence would show, and did not show whether the stock was sold, and if sold, whether it was sold at a profit or loss.

4. The defendant objected to the copies of receipts, in my view properly, as being irrelevant to the issue of whether his injuries lead to any economic loss.

The injury

5. The medical evidence presented by the plaintiff comprises reports by a general practitioner who first saw him after the accident, and specialist reports. The general practitioner, Dr P Ragg, said in a report to the insurer of 26 April 2000 that he first saw the plaintiff on 7 January 2000, and that the plaintiff "complained of severe neck pain and moderate low back pain". He said that the plaintiff had not sought medical assistance after the accident. He reported that x-rays showed degenerative changes in the cervical spine, and "at least some of these changes are likely to have been present prior to the accident". In a subsequent report of 14 July 2001, Dr Ragg was asked to address the plaintiff's claim that the accident caused a brain injury. He said -

... this is difficult to assess. I did not know the patient prior to his accident. Whilst it does appear that he may have some impairment of his frontal lobes, he also has a past history of excessive alcohol intake which may be a factor.

Dr Raggs' conclusion was that -

Mr Bouyachi suffered soft tissue injuries to his cervical region in particular and his lumbar regions in this car accident. Most people with these injuries would have shown a significant improvement after 19 months but he has not up to this stage. I hope he will soon.

6. Although the plaintiff claimed to be "100% fit" before the accident, this is not consistent with him being on a long-term invalid pension, and with a medical report tendered in the defendant's case from Dr CR Ashton in 1994 which diagnosed the plaintiff as suffering then from "1. Chronic back pain, and, 2. Alcohol abuse".

7. The two specialist reports that the plaintiff seeks to rely on are from Dr GG Griffith and Dr Ashton. Dr Griffith, a consultant surgeon, saw the plaintiff at the referral of his then solicitors, on 10 May 2000, and reported to the solicitors on that day. Dr Griffith reported that the plaintiff complained of marked restriction of cervical movement, being limited to 0 degrees of forward flexion and extension, and only 5 and 10 degrees of left and right rotation. He commented in his report -

Foraminal compression was negative. Brachial plexus stress test, however, was claimed to produce cervical pain. He complained of crepitus in the head and neck (restrictions of movement of this nature in the absence of recent acute trauma is strongly suggest embellishment [sic]). Movement in the course of taking the history were observed to more closely resemble normal ranges.

8. In relation to the lumbar spine, Dr Griffith reported -

Once again there was demonstrative pain behaviour, with gross limitation of spinal movements. Flexion reached 15°, with preservation of lumbar lordosis and lumbo-pelvic rhythm (insofar as it could be assessed with such small ranges of movement). Extension was 10°, lateral flexion 10° R 20° L and rotation 10° bilaterally. The simulated rotation test was positive, with complaint of low back pain. He was able to hop squat and toe and heel walk.

Examination of the dorsal aspect of the torso revealed no obvious deformity, but vehement complaint of tenderness in the whole of the paraspinal muscle mass from sacrum to thorax bilaterally. There was also marked tenderness over the sacrum, a factitious sign.

9. Dr Griffith, reporting as the plaintiff's consultant surgeon to his then solicitors, recorded in his report his impression that -

Your client exhibited marked multi-level embellishment of signs, though there is no doubt that he does suffer from some pathology.

In his findings on physical examination he summarised that -

There is evidence of multiple areas of significant embellishment and pain related behaviour, as documented. There are a number of truly factitious signs which have no basis in organic pathology (particularly generalised anaesthesia or gross hypoaesthesia involving both legs and the torso, and incongruous straight leg raising). Limitations of movement in the absence of gross neurological signs of the magnitude shown in both the cervical and lumbar region are without doubt factitious. They are belied by the fact that he exhibited considerably more movement of those areas when not under formal examination during the taking of the history, moving and replacing his clothing, and mounting and dismounting the examination couch.

10. In short, Dr Griffith has reported that the plaintiff was significantly embellishing his claims of disability, and was reporting gross restrictions of movement on formal examination that were not present at other times. He reported a number of symptoms and areas of complaint that Dr Griffith said were clearly factitious, meaning invented or contrived. Such a report does not assist the plaintiff in his claim for ongoing total disability. Dr Griffith noted that the plaintiff was wearing a soft collar, which he continues to wear, and strongly advised that this was of no benefit. The plaintiff wore a collar to court, yet during proceedings appeared to move his head freely when observing counsel for the defendant, in a manner consistent with Dr Griffith's observations. Dr Griffith concluded that the plaintiff -

has undoubted radiological evidence of age related degenerative disease or spondylosis of both cervical and lumbar region, of relatively minor extent.

He concluded that in the accident the plaintiff sustained some shock, and a whiplash type injury "with aggravation of underlying spondylosis of the cervical spine".

11. Dr Griffith, in response to a question going to the plaintiff's fitness for work, said in his report that -

Your client has been an Invalid Pensioner since 1991. As a consequence, he is not in formal gainful employment. However, he has been working as a self-employed market stall holder, which has been in total abeyance since the injury, not least due to the fact that his van has now been written off and he has no means of transport.

12. In June 2000 the plaintiff was referred to Dr JW Fuller, a neurosurgeon, by his general practitioner. A report was requested from Dr Fuller by the plaintiff's new solicitors, and Dr Fuller's report of 29 August 2000 was relied upon by the plaintiff. Dr Fuller again observed gross exaggeration in his presentation, reporting that -

Examination was extremely difficult. All movements of the cervical and lumbar spine were extremely limited with only a few degrees possible in any direction. Straight leg raising at 10 degrees reproduced severe lower back pain however when distracted he was able to sit with his hips flexed and knees extended. Axial loading of the spinal column produced severe pain. There was diffuse tenderness to light touch over the lumbo-sacral junction paravertebral regions of the cervical spine. Sensory examination revealed a global reduction not conforming to any specific dermatomal or myelopathic distribution. Formal examination of power was difficult in that all attempts reproduced pain however he was able to sit, stand, dress and undress along with getting on to and off the examination couch without any objective motor weakness being apparent.

13. Dr JW Fuller arranged for CT and MRI scans to be taken, and concluded -

This man's diagnosis is of cervical and lumbar spondylosis. It is possible that he has aggravated these conditions which were present prior to the alleged accident given that x-rays performed on the 20^th December, 1999 demonstrated degenerative changes.

It is difficult to ascertain his degree of incapacity given the number of non-organic clinical signs which he demonstrates. In regards to his capacity for work this would seem irrelevant given that he has been on an invalid pension since 1991.

14. The plaintiff also tendered reports from Dr S Rosenman, a psychiatrist, who examined him in June 2001 at the request of his general practitioner. In a report to the rehabilitation services at the Canberra Hospital, Dr Rosenman said -

... I think this man has brain deterioration of uncertain cause. Although he claims it follows the car accident, the appearance is more consistent with the longer term effects of his past heavy alcohol use.

15. Mr McDonogh, counsel for the defendant, said that he would be able to rely solely on the medical material presented in the plaintiff's case. In this case that material indicates that the plaintiff grossly overstates his disabilities and at best has sustained a degree of aggravation of an underlying degenerative spinal condition. In soft tissue injuries a treating doctor is of course dependant upon the veracity of the complaint. The plaintiff's general practitioner noted that he had never seen the plaintiff before the accident, and he carefully notes only the plaintiff's complaints of pain. Specialists consulted by the plaintiff's former solicitors have reported that the plaintiff has reported factitious symptoms and gross overstatements of his range of movement and disability. The defendant also tendered a report from Dr PD Stevenson, who saw the plaintiff in February 2004. He also noted significant claimed restrictions of movement but spontaneous movement with few restrictions. He concluded that -

I had to conclude that if there was any objective neurological pathology in either upper or lower limbs, Mr Bouyachi had robbed me of any possible chance of detecting it by his marked illness behaviour.

He concluded -

He has degenerative change in his cervical spine which is not traumatic and which has not been substantially worsened by trauma.

16. The plaintiff was advised by me at a directions hearing of the difficulty in conducting a personal injury claim in person. He insisted on proceeding, saying his lawyers had been "crooks". Dr Rosenman, in his report of 27 June 2001 to the general practitioner tendered by the plaintiff, noted of the plaintiff that -

At interview he certainly has the demeanour of somebody with some injury in which frontal lobe impairment is most apparent. He is graceless and intolerantly impatient. He speaks loudly and coarsely accusing everybody of being "crooks". He claims to have no memory and declined to answer questions about orientation but other elements of his history giving and his appearance here suggest that memory impairment is not a severe problem.

17. While I accept that the plaintiff has an impairment in his cognitive function, there is simply no evidence that this is related to the accident, and Dr Rosenman's observation that it is more consistent with the longer term effects of past alcoholism is significant. It is necessary for any plaintiff to prove, on the balance of probabilities, that their claimed impairment was caused by the accident, and the plaintiff has failed to do this in respect of any brain dysfunction. In regard to his back and neck pain, the medical reports prepared in response to requests from two of his previous solicitors are documents, which the defendant, quite rightly, submitted do not support any significant claim for damages. Both Dr Griffith and Dr Fuller made express reference to factitious claims of symptoms, and gross embellishment of restrictions of movement, an observation supported by Dr Stevenson, and consistent with my observations in court. The evidence in this case at its highest would support a claim for only modest general damages for some aggravation of a longstanding degenerative spinal condition. While the plaintiff claims that he was 100 per cent fit before the accident, this is not consistent with him being a longstanding invalid pensioner, and the 1994 diagnosis of chronic back pain.

Damages

18. In regard to general damages, I am not satisfied that the plaintiff's claims of grossly disabling back and neck pain and restriction of movement are made out. I assess him only on the basis of a temporary and now resolved aggravation of a previously symptomatic degenerative back and neck condition, and assess damages in the sum of $12,000 inclusive of interest.

19. The plaintiff was unable to advise me of any out-of-pocket expenses, but the defendant provided evidence that the total of expenses related to the claim was $2,463.17, and I would award this sum. There was no particularised claim for future expenses, and there is no medical evidence supporting such a claim. Given that I have found that his accident related injury has resolved, I make no award for future out-of-pocket expenses.

20. The plaintiff made a claim for economic loss going to the claimed loss of his business, but was unable to provide any evidence in support of his claim that this business had been profitable. He was unable to say anything about how the business performed in his evidence-in-chief, beyond acknowledging that he had been on an invalid pension and asserting that he was allowed under his pension to earn $120 per week. There were no relevant tax returns or bank records produced, despite a subpoena from the defendant. It seems to me that at best I can conclude on the balance of probabilities that the plaintiff was conducting a market stall, which allowed him to earn some income in addition to his invalid pension. The aggravation to his degenerative condition caused by the accident would have interfered with the operation of this business for a closed period, and it seems to me that on the evidence before me the most that I can do is to award the sum of $5,000 by way of a global buffer, inclusive of interest, for past economic loss.

21. This amounts to an award of $19,463.17, which I award. I have no doubt that the plaintiff will be greatly disappointed by this. During the course of his evidence and his address he twice tried to tell me about settlement offers made by the defendant insurer. No doubt, given the state of the medical evidence available to them, his former solicitors gave him certain advice about settlement, advice that he has chosen to reject and instead brought his claim to this Court. On the evidence, his claim for gross disability is simply not made out, and he has been awarded a sum of damages that may be below what he could have achieved by a negotiated settlement. That may be an unfortunate result, but the Court of course cannot treat a person who is determined to proceed without legal representation in any way more favourably than it would treat a represented litigant.

22. There will be judgment for the plaintiff in the sum of $19,463.17. I will hear the parties as to costs.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 16 April 2004

Counsel for the plaintiff: Plaintiff in person

Counsel for the defendant: Mr MA McDonogh

Solicitor for the defendant: Phillips Fox

Date of hearing: 5 April 2004

Date of judgment: 16 April 2004