Dal Cortivo v Allen & Ors [2005] ACTSC 31 (22 April 2005)

Last Updated: 11 May 2005

LINCOLN DAL CORTIVO v JOHN ALLEN & ORS

[2005] ACTSC 31 (22 April 2005)

DAMAGES - personal injury - whiplash - plaintiff involved in three motor vehicle accidents with different defendants - liability admitted in first and second accidents - liability disputed in third accident - damages apportioned.

No. SC 645 of 2002

No. SC 646 of 2002

No SC 97 of 2004

Judge: Higgins CJ

Supreme Court of the ACT

Date: 22 April 2005

IN THE SUPREME COURT OF THE )

) No. SC 645 of 2002

AUSTRALIAN CAPITAL TERRITORY ) No. SC 646 of 2002

No. SC 97 of 2004

BETWEEN: LINCOLN DAL CORTIVO

Plaintiff

AND: JOHN ALLEN

First Defendant

AND: TANIA KLEMKE

Second Defendant

AND: ROBERT ALLEN WATERS & CUSTOM SERVICE LEASING LIMITED

Third Defendant

ORDER

Judge: Higgins CJ

Date: 22 April 2005

Place: Canberra

THE COURT ORDERS THAT:

1. There be judgment for the plaintiff against the first defendant in the sum of $17,096.

2. There be judgment for the plaintiff against the second defendant in the sum of $22,382.

3. There be judgment for the plaintiff against the third defendant in the sum of $13,952.

1. This plaintiff became involved in three motor vehicle accidents, the first on 3 October 2000, the second on 2 December 2000 and the third on 11 November 2002.

2. In the first, a car emerged from Jerrabomberra Avenue and cut across the path of the plaintiff's motor vehicle travelling along Hindmarsh Drive. Liability is admitted in respect of that accident.

3. In the second accident, the plaintiff was travelling on Coulter Drive, Belconnen. The second defendant unexpectedly performed a U turn in front of the plaintiff's motor vehicle and they collided. Liability is not contested in respect of this accident either.

4. There is a liability issue in respect of the third accident. The plaintiff had turned into Goessling Place, Flynn. The third defendant was reversing into that roadway from a residence in that street. The driveway in question was partially obscured by bushes and a wheelie bin. The two vehicles collided.

Third Accident 11 November 2002 - Liability

5. It is convenient to deal first with the question of liability in relation to that third accident. At about 5.00 pm on 11 November 2002, the plaintiff was driving a blue Ford Meteor in the course of his employment with Billabong Pools. His duties were mainly clerical but involved delivering plans and other documentation to clients of the firm.

6. Goessling Place was a cul-de-sac. The plaintiff turned right into it from a 40 kph zone. As he approached the address to which he was intending to go, a Ford motor vehicle pulled out from a driveway on his left. He first saw it one metre away. He had no time to brake. He hit the other vehicle in the area of its rear left side wheel.

7. The plaintiff, at the time, was, he said, travelling at 30 - 50 kph.

8. The other driver, the third defendant, was angry and aggressive. He suggested that the accident was the plaintiff's fault. The plaintiff called the police to attend.

9. A police officer on a motorcycle did so.

10. The relevant driveway was, it was agreed about 30 metres from the intersection of Bingle Street and Goessling Place.

11. It was suggested that the accident may have been at about 4.00 pm rather than 5.30 pm. The plaintiff agreed he was paying little attention to the time until the police officer arrived. He recalled travelling at 40 kph in Bingle Street and braking for the right hand turn into Goessling Place. He rejected the suggestion that he was in a hurry to drop off the goods he was delivering so that he could knock off for the day. He contended that the bushes and garbage bin on the left of the relevant driveway obstructed his view of the emerging vehicle until it entered the roadway. He rejected a suggestion that the vehicle he struck was already part way onto the roadway as he rounded the corner and fully out as he approached it. It was even suggested that it was in fact going forward up the driveway as the collision happened. He agreed that the third defendant said words to the effect:

How the hell couldn't you have seen me?

And he replied:

I just didn't see you.

12. Constable Wayne Bryan was the police officer who attended the scene. He made handwritten notes. He noted the visibility restrictions imposed by "trees/shrubs etc". Constable Bryan recorded what he was told of the collision as follows:

V1 [plaintiff] proceeding (sic) along Goessling Place. V2 [third defendant] has reversed out into street into the path of V1. V1 has collided with the rear of passenger side of V2 causing minor damage to the rear of V2. V1 has major damage to the front end.

The driver of V1 stated that he had just entered the street after turning right off Bingle Street. The driveway from where V2 had reversed is about 30 meters from this intersection, up a moderately steep hill. The driveway from where V2 reversed is heavily covered by shrubs and bushes, and does not allow good observation to either V1 or V2.

He said that V2 just appeared in front of him and as such had no time to brake or swerve and just impacted with the rear of the vehicle.

The driver of V2 stated that he saw V1 approaching but was already out onto the road way before he could react. V2 stated that he was on his way to the gym.

13. Neither driver complained of any injury nor did Constable Bryan observe any sign of injury. He was not told by the third defendant that the latter had fully reversed out of his driveway onto the roadway before the plaintiff arrived on the scene. He did recall "skid marks on the driveway, onto the grassed area where the vehicle had been pushed sideways".

14. He confirmed that the accident was reported at 16.57 hours, though he could not say if the report from the scene was at or shortly before that time.

15. The third defendant gave evidence. He asserted that he had seen no vehicle approaching before he reversed down his driveway. He said:

I reversed out just across where the middle would be of the street. Started to reverse up just a little bit, so then obviously I could swing around, and then turn down the street.

As I stopped reversing, I looked down the street and I noticed a vehicle come round the right-hand side - off Bingle, around up into Goessling Place.

16. He was, he said, then "sitting in the middle of the street".

17. The other vehicle -

... came around the corner relatively quickly. It appeared to be relatively quickly. And started driving towards me, not quite sort of - heading towards the middle of the road and coming straight towards me."

Yes, and what did you then do?

"... I waited a moment, I was sure that this person would have to be able to see me from the middle of the road. But it certainly appeared that that was not going to happen. So I tried to put the car back into drive. I managed to get into drive, in order to drive back on the driveway, but unfortunately it was slow and we collided."

... And did you have any opportunity to move it forward?

"No."

All right. Immediately following the collision, what happened to your vehicle?

"The car spun from facing forwards towards down the bottom of the street, it spun three metres, four metres up directly across this way, up onto the bank where the next person's property started. And then came to a halt, dug into the ground."

18. The third defendant also claimed that there was a skid mark made by his vehicle from his rear wheel being dragged from "just past the middle of the road across my - sorry the right hand side of the road across the other side of the road".

19. The third defendant also conceded that he had been issued with a traffic infringement notice, which he paid, but denied that this was an acceptance of guilt on his part.

20. It is apparent that the third defendant's account of the accident is at variance with Constable Bryan's observations both as to the nature and extent of any skid mark and the obstruction caused by the vegetation. Further, the account of the extent to which his vehicle had come onto the roadway and the position of it vary in his various accounts of the accident. Was it facing down the road or at right angles to it? He told Constable Bryan that he had no opportunity to react to the approaching vehicle but contradicts that in his evidence, claiming to have engaged "drive" to re-enter his driveway to avoid a collision. Had he done so it might be consistent with the observed skid marks and the position of the vehicles after collision as observed by Constable Bryan. However, the third defendant was adamant that he had not moved after he reversed out of his driveway completely and was at rest intending to turn towards the intersection with Bingle Street.

21. In any event, the account given would suggest that as the plaintiff turned from Bingle Street, there was a vehicle across the roadway in front of him 30 metres away yet he took no evasive action and did not even see it. I find that inherently improbable.

22. In my opinion, the account given by the plaintiff is inherently more probable and despite the cogent attack on his credibility, to which I will later refer, I consider that his account of the occurrence of the accident was accurate. In saying this, I am not persuaded that the third defendant was giving deliberately inaccurate evidence, I think that he simply considered that the plaintiff should have noticed his emerging vehicle earlier and has reconstructed the event accordingly.

23. I am not satisfied that the plaintiff was guilty of any lack of due care and attention.

24. It follows that I find the third defendant liable in relation to any damage caused by the third collision.

Damages - First Accident 3 October 2000

25. Following the collision the plaintiff, whilst "scared" for himself and his girlfriend, did not feel any immediate pain. However, the next day, he said, he felt "very tight and very stiff in my neck and my back, and also I had a pain in the back of my right hip".

26. He saw his general practitioner, Dr Idowu, on 5 October 2000 and was referred to an osteopath, Ms Belinda Libbis. He had previously seen her and Dr Ian Taylor, her "boss" for "sore feet and sore knees". This was occasioned, he said, by the fact that one of his legs was slightly longer than the other. He conceded that before this accident he had experienced "a mild, very mild low back pain" and "a sore neck on and off".

27. In 1999 he had played indoor soccer.

28. Up to October 2000, the plaintiff, who had finished year 12 mid 2000, had worked both as a barman at the Tryst Restaurant in Manuka and had done part time labouring for his father and uncle. Both operated carpentry firms. He had intended, but for the accidents befalling him, to enter into a carpentry apprenticeship with his father. He filled out an enrolment form for CITEA (Construction Industry Training and Employment Association). However, he had not completed the reference to "Injury to Back" and "Do you require special assistance because of disability" as he was unsure of the effects of the first accident in the longer term. He then had the second accident and decided not to submit the form. Before then, however, he had ticked "no" to the first question and "yes" to the second.

29. The second accident he described as involving "a forcible impact". He was, he said, "Very, very scared". He made sure his girlfriend was alright and approached the other vehicle. As he did so, two male persons approached him, acting aggressively and drinking beer. What they had to do with the case was not clear. They got into a car that was different from that of the second defendant, though the plaintiff was initially confused as to who had driven the vehicle with which he collided.

30. He felt pain in his neck and lower back and his right wrist and forearm were "very tight". He recalled his right wrist being jarred on the steering wheel. The pain came on 1 - 2 hours after the accident. The wrist worsened, becoming painful. Indeed, the plaintiff complained, it still gets "tight and sore and it cracks" if he uses it a lot. He also noted that his previous "very mild headaches" had become "more severe and more frequent".

31. Between the two accidents, after a short break, he had returned to work at the Tryst, albeit on reduced hours and duties (no packing-up, cleaning, mopping or restocking fridges). He found lifting and twisting caused pain and discomfort to his back.

32. After the second accident, he gave up that job entirely. He again consulted Dr Idowu, though not until 19 December 2000, and continued to consult Ms Belinda Libbis. He felt, in 2001, that he could not become an apprentice carpenter. His neck, back and wrist pain, he said, did not improve "for quite some time".

33. On 20 March 2001, the plaintiff saw Dr Geoffrey Speldewinde, a rehabilitation specialist. He underwent therapy designed to strengthen his neck. This he found useful. His neck was strengthened but remained painful.

34. In July 2001, he undertook a computer course (MYOB) at CIT (Canberra Institute of Technology). He abandoned it after a month. He could not sit for a full class session (5.30 pm to 8.00 pm) due to lower back pain.

35. By 2002, he said, he was "starting to feel better more - more active. Trying to be more active". He started work for a business, Billabong Pools, about September. Before then, he had done work for his father. This was recorded in an invoice book. He also did work for "Little Pete's Maintenance" checking auditorium seating. He found tightening seating screws "uncomfortable".

36. His work with Billabong Pools was mainly office work but included liasing with construction sites. He gave up that job after the third accident.

37. Before that accident, the plaintiff was still troubled by the effects of the two previous accidents, albeit that there had been "some improvement".

38. Following the third accident, the plaintiff said his back and neck "tightened up immediately". The wrist symptoms did not alter.

39. That accident, also, contributed to a previous depressive condition which had emerged after the second accident. The plaintiff said he "lacked motivation" and was generally "unhappy". He saw Dr Idowu the same day. He continued the previous treatment regime so far as the neck and back areas were concerned.

40. Early in 2003, the plaintiff consulted Dr Jeff Parsons, a psychologist. This was because of his symptoms of anxiety and depression. The treatment, he acknowledged, did help but he denied that there was any long-term help from it. "It was just short-term".

41. He put it down to the aggressive behaviour of the male persons in the second and third accidents. He also experienced anxiety in driving in heavy traffic but conceded it was "not a major problem now".

42. He returned to work in the first half of 2003 with Gungahlin Electrical. He was initially a sub-contractor but "went onto wages" in early November 2003.

43. That employment, on full-time hours, ended on 12 March 2004. The plaintiff complained that his neck and back were "not improving" and he found it difficult to sleep. He would need to rest for four hours at the end of the working day. He was able to perform the work, testing equipment and fitting off power points and light fittings, so long as he did not have to bend down low.

44. He did, however, during 2004, engage in dirt bike riding but complained of pain in the back and right wrist following riding. His motor bike was for sale as a result.

45. The treatment regime otherwise was gym training, massage and acupuncture. He was, as at November 2004, unemployed but was about to discuss a position with a Batemans Bay electrical contractor.

46. The plaintiff also made mention of a business he undertook, as a sideline, of buying, restoring and selling motor vehicles. It returned some "thousands" of dollars over the last four years.

47. Mr Whybrow, on behalf of the first defendant, elicited evidence from the plaintiff that, before the second accident he had missed out only on one week's pay (generally $100 - $120 net).

48. There was some minor diminution of earnings after that compared with before the first accident, perhaps $20 per week less. That may be attributable to the back pain the plaintiff suffered on bending and lifting. He was, up to then, improving.

49. It was the second accident, he said, that dissuaded him from pursuing his carpentry ambitions.

50. He had, he conceded, driven his car to Sydney and, on another occasion, to Melbourne and Adelaide. He claimed to have trouble with his neck so that he needed to stretch and use a pillow or back-roll for comfort.

51. He did not dispute that he had told Dr Speldewinde in June 2001 that he had been working 35 hours weekly as a barman and labourer before the two car accidents but agreed that was "an exaggeration".

52. Nevertheless, he did agree with Mr McDonagh, for the second defendant, that, even after the third accident he had undertaken the physical work associated with restoring motor vehicles. The plaintiff conceded it was not "light work". He had on occasions spent more than three or four hours sanding a car, though he confined this to "good days". Even so, he agreed that "I don't see why not" when it was suggested he could take up motor mechanics for a living.

53. Nor did the plaintiff's social activities, even after driving non-stop to Sydney, seem to be at all restricted. They even included reef fishing.

54. That did not sit consistently with the plaintiff's assertion that he could not, if he chose, do a full week's work during normal business hours in any job for which he was or could qualify. I simply do not accept that assertion. It was apparent that the plaintiff had greatly exaggerated his disabilities. That is not to say that I accept that he was deliberately dishonest. I believe that, perhaps induced by the pressure of this litigation he could not see the conflict between his actual activities and the fairly minimal effects (usually) of these accidents that befell him. He could himself see the conflict when Mr McDonagh pointed it out to him.

55. Mr McDonagh did take the plaintiff to his complaints, treated by Ms Libbis, before the first accident, of "low back pain". He had also had knee and left hip pain. The latter was consistent with earlier evidence of unequal leg length addressed by Ms Libbis. It seems apparent that these symptoms were related to that disability. There had also been reference to C3/4, a cervical problem, also apparently related to the leg problem. The condition does not appear to have been debilitating but the plaintiff did not disclose that history to medico-legal examiners. Hence their opinions are, to that extent, limited.

56. The plaintiff disagreed with the opinions of Dr Idowu and Dr Speldewinde that, with rest breaks, he could, in 2002, have coped with computer work or study. His comment was that whilst physically, he could, "possibly", have coped, he did not believe he could have done so mentally.

57. In answer to Mr Pilkinton, for the third defendant, the plaintiff conceded that his depression and anxiety had resulted from the second accident. The third accident had not "significantly" exacerbated those problems. Further, although he claimed physical difficulties caused him to resign his position with Gungahlin Electrical, his stated reasons were that the work was "boring" and that he had an offer to manage a proposed café restaurant.

58. The plaintiff's uncle, Patrick Dal Cortivo, had employed the plaintiff in 1999 and 2000 for general labouring duties. He was paid $20 - $25 per hour plus $7 - $10 per day for additional allowances. If he had trade qualifications the hourly rate would start at about $30. A carpentry sub-contractor might be paid $38 per hour.

59. The plaintiff's father, Alfred Dal Cortivo, also gave evidence. He confirmed that he was prepared to take the plaintiff as an apprentice. He paid $35 - $45 per hour for a qualified tradesman. He had employed the plaintiff after his various accidents. He did permit the plaintiff to work at his own pace but it did not seem to me that the plaintiff had complained of or evidenced any particular disability, though it seems Mr Dal Cortivo did not push his son to do heavy work and that may have been out of deference to his physical condition following his accidents.

60. A proprietor of Tryst Restaurant, Mr George Economopoulos, gave evidence of the plaintiff's employment before and after the first accident. After, he said, the plaintiff:

... didn't work for a couple of weeks, so we tried to get him back on casually and spreading him out during the week of just one or two days (sic).

That did not work out, he said, because the plaintiff:

... couldn't stay on his feet for any period of time, really. It wasn't that he was even doing heavy work, you know, we don't do a lot of lifting and stuff just making coffees and drinks, but just couldn't stand on his feet for more than a couple of hours. You could just see he was in pain a lot of the time.

61. The plaintiff did not work for Mr Economopoulos after the second accident.

62. The difficult issue to determine, made more difficult by the manifest unreliability of the plaintiff's evidence, is the actual effect of each accident upon the plaintiff's state of health and well-being.

The medical evidence

63. Dr Femi Idowu, general practitioner, on 18 January 2001, noted that on each of the first two accidents the plaintiff was jolted affecting his neck and back and leading to "severe headache and mild neck ache". He did find "mild tenderness with spasm" in the neck, reducing range of movement by about 25 percent. He also found "moderately severe tenderness and spasm in the low back (L4/S1)". I note that these are objective signs of injury.

64. The disabilities included ongoing signs of a post traumatic stress disorder. Those disabilities, Dr Idowu considered, would "impact on Lincoln's ability to work either as a waiter or construction labourer". The right wrist was not mentioned by Dr Idowu.

65. As at 28 June 2002 Dr Idowu found only minimal signs of physical difficulty with the neck and back but considered regular exercise, osteopathic treatment for spinal misalignment and use of analgesics as required would resolve the situation. He considered the only remaining restriction on employment was heavy lifting and bending as may be required for a builder's labourer.

66. I note the spinal misalignment was a pre-existing condition and that the plaintiff's role as a labourer had not involved heavy lifting or bending.

67. On 3 October 2003, Dr Idowu reported on the then condition of the plaintiff following the third accident on 10 November 2002.

68. Again Dr Idowu found "moderately severe tenderness with spasm in the cervical neck and mid to low back". The residual disabilities, he considered, had been equally contributed to by all three accidents but remained of the view that the only employment to be ruled out was that of a builder's labourer.

69. Dr Geoffrey Speldewinde, rehabilitation specialist, saw the plaintiff after the first two accidents but before the third of them. He found no particular signs of disability except the reported pain and tenderness. He recommended exercise therapy to deal with the strain to the cervical and lower lumbar spine. He considered that, particularly after completing the MYOB course, the plaintiff would be fully fit for restaurant or office work. Labouring was less likely to be a job for which the plaintiff would be fully fit.

70. On 12 September 2002, Dr Speldewinde found the plaintiff to be "substantially improved" and expected him to be "largely fully recovered in the next one to three years".

71. Dr Speldewinde reviewed the plaintiff again on 12 May 2004, following the third accident on 11 November 2003. The plaintiff told Dr Speldewinde of an aggravation of the spinal symptoms which was still "disabling" at Christmas. It had slowly improved over the next 18 months. However, he still complained of disabling pain arising after "frequent repetitive or sustained neck or back movements". He reported a "restricted general range of interests and social activities".

72. I note that latter report is inconsistent with the plaintiff's own account of his activities given in cross-examination. Significantly, no objective signs of disability were detected in his spine or right wrist.

73. However, the presentation was, in Dr Speldewinde's opinion, suggestive of post-traumatic stress. On 30 July 2004, he recommended an intensive pain management and rehabilitation program costing about $6000.

74. Mr Jeff Parsons prepared a psychological report. It is clear that his account of the second accident is factually confused. The male persons did not come from the second defendant's vehicle and she was not unidentified. Nevertheless, the trauma occasioned by their behaviour is relevant to the effect on the plaintiff of the collision.

75. Interestingly, Mr Parsons records that the plaintiff "denied significant psychological problems as a direct result" of the third accident.

76. Clearly, the effects of the trauma have to be discounted, as the behaviour of the "aggressive males" is not attributable to the second defendant. Further, the main complaint, which must be discounted for other reasons, is of chronic pain.

77. A further discounting factor is revealed by Ms Libbis's (osteopath) reports. A pre-existing pelvic imbalance has contributed, to an extent, to such pain and discomfort as the plaintiff has experienced since the motor vehicle accidents.

78. Ms Libbis was of the opinion, in her report dated 1 August 2000, that the plaintiff exhibited clinical signs of "soft tissue trauma". However, the symptoms he complained of had improved with treatment. This comprised stretches and exercises. Headaches were, by then, rare.

79. She then expected some "intermittent low back pain and neck pain for the next 18 months". She expected a cost of $920. The plaintiffs had similar treatment from a massage therapist, Mr Stuart Andrews, at a cost of $330 with a further six months' treatment recommended at $660.

80. There was a medico-legal report from Dr Ron Brooder, Consultant Neurologist, who also gave evidence. In his report dated 11 August 2004, Dr Brooder reported that the plaintiff felt his pain, although "virtually daily" and related to activity, was "slowly improving". There was occasional "tingling" or paraesthesia in the hands, though not since April 2004. The plaintiff maintained that he was unfit for work. However, clinical examination revealed no abnormality other than complaint of pain at the extreme of some (normal) movements and some report of tenderness in the mid cervical region. Dr Brooder postulated a musculo-ligamentous strain injury. If no structural damage was found on MRI scan (and none has been) then, "long term", his prognosis was favourable. On the difficult question of contribution, he apportioned the final outcome 70 percent to the first accident, 10 percent to the second accident and 20 percent to the third. Dr Brooder had not been told of the pre-existing pelvic imbalance. Nor was he given an accurate account of the plaintiff's actual physical activity levels. When that scenario was explained to Dr Brooder, he agreed the experience of pain, in the plaintiff's case, was subjective and depended on the truthfulness of his account of the extent of that pain. His assessment had been that the first accident was 70 percent responsible for his then current symptoms (whatever they were), the second 10 percent and the third 20 percent. The first was considered more significant because it started the pain process, the latter two aggravating that initial damage. He made the point also that headaches and depression, which followed the second accident, would exacerbate the experience of pain. The plaintiff thereby became, of course, more vulnerable to further exacerbations. Dr Brooder further agreed that the third accident would have been regarded by him as less of a contributing factor had he known that the plaintiff resigned his electrical trade job, not because of physical disability, but rather because it was "boring" and he had the prospect of a job managing a café.

81. Professor David Champion was next called. He had submitted a written report dated 3 September 2004. The history of disability following the first accident (inability to return to bar work, discontinuing labouring work for his father) was clearly inaccurate. Professor Champion's speciality as a physician is pain management. He also had been given an incorrect history of the second accident (unknown vehicle containing two abusive males) but little turns on those inaccuracies. The plaintiff reported that by the time of the third accident, he was "somewhat improved" and more optimistic. The third accident, though not a major collision, was a further physical and psychological blow.

82. "Currently", Professor Champion recorded, "he is in a better physical state than before the third accident", albeit "his psychological status has not yet returned to that point".

83. Professor Champion, based on the plaintiff's report of symptoms, considered the first accident to contribute 30 percent, the second 50 percent and the third 20 percent to the ongoing problems of the plaintiff referred to.

84. That assessment is widely at variance with Dr Brooder's assessment. However, it is very much a matter of impression and varies, in terms of apportionment, from the task I have to perform, that is, what was the pain, suffering and disability (if any) suffered by the plaintiff and attributable to each accident. Professor Champion found a greater apparent restriction of cervical movement than had Dr Brooder. So far as psychological impact was concerned, Professor Champion found the second accident to be more significant. The third was a temporary aggravation.

85. However, the prognosis reported was relatively gloomy. The plaintiff would be restricted to "less physical" occupations. In clerical jobs his right wrist would be "a problem". A current difficulty was his depressed mood and motivation. That might improve over time, however.

86. In cross-examination, Professor Champion agreed that "one always has to be cautious about self-report and self-assessment", particularly in the absence of "objective pathology".

87. A number of medico-legal reports were tendered, without objection, on behalf of the first defendant (from Professor Oakeshott, 18 June 2002), second defendant (from Dr Peter Battlay, 22 July 2001, 11 April 2003) and third defendant (from Dr Peter Stevenson, 30 April 2004).

88. Professor Oakeshott could find no evidence of significant disability. He concluded that the plaintiff's stated disabilities, allegedly preventing him from engaging in full-time employment, if they did so, were due to other than physical causes.

89. Dr Battlay, as at 22 July 2001, considered that the plaintiff was being "over-treated", should have by then recovered, and was not debarred for any physical reason from a carpentry/building career. After the third accident, as at 11 April 2003, could find no sign of further injury other than claimed tenderness and ongoing pain.

90. Dr Stevenson considered the plaintiff:

... may well have had some minor and non-specific neck and back strain, or psychologically based tension symptoms in neck and back in the accident as described.

91. However, in the absence of structural damage, that should, with exercise therapy, have resolved.

92. This body of evidence is consistent with the plaintiff's medical evidence and his own account, at least under cross-examination, of the activities he has been able to undertake.

93. He did suffer three whiplash-type injuries and I accept that symptoms from the first of neck and low back pain were present for about six weeks. He suffered a similar injury in the second and third accidents and I consider that symptoms attributable to those accidents continued for about the same period of time. I believe that every twinge he has since suffered has, probably due to the psychological impact of the accidents, been attributed by him to those accidents. He may have some heightened susceptibility to further whiplash injury but I do not consider that sufficient to inhibit him from any occupation then or now reasonably open to him.

94. I would allow $10,000 damages for the first accident, $15,000 for the second and $10,000 for the third.

95. Those sums are attributable wholly to the past and attract interest in the sum of $1,776, $2,562, and $132 respectively.

96. Loss of earnings I assess at $200 per week net for six weeks for each accident. That is, $1200 plus interest thereon at 10 percent, being $120 for each accident.

97. Out of pocket expenses claimed total $14,986.02 for the first accident, $14,259 for the second accident and $6,807.86 for the third accident. I allow, as a matter of impression, $10,000 in total. This amount is apportioned as to $4,000 for the first accident, $3,500 for the second, and $2,500 for the third.

98. There will, therefore, be judgment for the plaintiff against the first, second and third defendants apportioned as follows -

First defendant

General damages $10,000

Interest $1,776

Loss of earnings $1,200

Interest $120

Out of pocket expenses $4,000

Total $17,096

Second defendant

General damages $15,000

Interest $2,562

Loss of earnings $1,200

Interest $120

Out of pocket expenses $3,500

Total $22,382

Third defendant

General damages $10,000

Interest $132

Loss of earnings $1,200

Interest $120

Out of pocket expenses $2,500

Total $13,952

I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 22 April 2005

Counsel for the plaintiff: Mr R Mildren

Solicitor for the plaintiff: Barker & Barker

Counsel for the first defendant: Mr S Whybrow

Solicitor for the first defendant: Hunt & Hunt

Counsel for the second defendant: Mr McDonagh

Solicitor for the second defendant: Sparke Helmore

Counsel for the third defendant: Mr S Pilkinton

Solicitor for the third defendant: Minter Ellison

Dates of hearing: 29 November 2004 - 1 December 2004,

15 December 2004

Date of judgment: 22 April 2005