CLA: surveillance oddly determinative of credit in G v K claim

 

Good v Czislowski & Anor [2013] QDC 68

 

JUDGE: R S Jones DCJ
ORDERS: 1. Damages are awarded in the sum of $148, 946.00 2. I will hear from the parties as to costs.
CATCHWORDS: DAMAGES FOR PERSONAL INJURIES – Civil Liability Act 2003 – nature and extent of injuries suffered by plaintiff – primary claim for past and future care of plaintiff – assessment of general damages – assessment of special damages

The decision is an example of how difficult it is to be sure about the impact of surveillance and how it will be interpreted by the trier of fact.

Liability was admitted and in contention was G v K under s 59 CLA with reference to the surveillance and a failure to keep a diary or note: Shaw v Menzies & Anor [20].

Ultimately, whilst the surveillance did reduce damages it also substantiated that the plaintiff was not undertaking the tasks she claimed G v K for:

 

 

[9] According to Dr Fraser (the orthopaedic surgeon relied on by the defendant), the most likely diagnosis for this injury was a fracture to the sternum. According to him, the plaintiff displayed “excessive” symptoms and, in his opinion, the matter should have resolved itself within a “few months”.[6] It may well be the case, as Dr Fraser opined, that such an injury would, in most cases, resolve in a few months. However, I am sufficiently satisfied that this was not the case for the plaintiff and that Dr Fraser’s assessment failed to adequately take into account the true nature and impact of the sternum injury suffered by her.

[17] The evidence given by the plaintiff concerning the pain, suffering and inconvenience caused by her chest injury is not only corroborated to a material extent by the medical evidence, but in certain respects, also by the surveillance footage taken on behalf of the defendants. The surveillance was quite extensive. It showed the plaintiff riding her bike, shopping with her husband, shopping alone and present in the yard of her home. While this footage showed the plaintiff was quite capable of riding her pushbike and enjoying other activities associated with that riding (e.g. stopping for coffee) it did not show the plaintiff carrying out any work in the garden. Given the extent of the surveillance undertaken it seems likely to me that if the plaintiff was in fact carrying out those activities she would have been observed.

[23] On behalf of the plaintiff, it was contended that the sternum injury was a moderate chest injury. On behalf of the defendants, it was asserted that it was a minor chest injury. The defendants’ assessment is, in my respectful view, primarily based on Dr Fraser’s assessment of the plaintiff. And, while I accept that the plaintiff was prone to exaggerate the extent of the injuries she suffered as a result of the accident and to understate her health problems prior to the accident (both of which are discussed below) I do not consider that her description of the impact of the sternum injury was exaggerated to the extent of disbelief.

[29] The plaintiff’s bruising, whilst extensive, appears to have healed relatively quickly. The same could be said for any knee and shoulder injuries. Also, it seems tolerably clear, particularly by reference to the surveillance footage, that the plaintiff has no significant residual limitation of movement concerning her cervical spine. It was not suggested, by way of example, that it prevented her from carrying out any domestic tasks including shopping and yard work and, as already observed, it has not limited her ability to ride to enjoy her past time of bike riding. On balance, whilst I consider the other injuries do justify an uplift, it should be a relatively modest one in all the circumstances. I consider an uplift of 12.5% to be appropriate. Accordingly, general damages are assessed in the amount of $20,400[18]. There are no other matters that warrant a higher or lower assessment of general damages.[19]

[47] Notwithstanding these observations, which clearly affect the overall reliability of the plaintiff as a witness, I am satisfied that, in the main, she was a creditable witness albeit one who was overly house proud and reluctant to admit to or accept the physical limitations placed on her due to her age and pre-existing health issues.

 

[48] In this context, it is relevant that the plaintiff was examined by numerous doctors, including specialists, none of whom, with the exception of Dr Fraser, suspected that the plaintiff was feigning her chest injury. It was an injury that was clearly distressing to the plaintiff and of concern to her treating doctors. Also, when confronted with the surveillance footage the plaintiff made a number of concessions damaging to her case concerning her ability to turn her head and raise her arms above shoulder height. A deceitful witness would not have been likely to so readily make such frank concessions. Finally, on this topic, I consider it significant that despite the level of surveillance none showed the plaintiff carrying out any gardening or yard work. If she had done so it is very likely she would have been observed. The unchallenged evidence is that she did this work and enjoyed doing it. The most likely explanation as to why she was not observed carrying out these activities is that she is prevented from doing do because of her sternum injury.

 

[49] The plaintiff reported to Ms Aitkin that she was now capable of carrying out a number of lighter or less strenuous domestic activities but not those involving reaching overhead (e.g. when cooking and shopping) and that now her husband did all physical grocery shopping.[38] Apart from the surveillance footage showing the plaintiff riding her bike without any apparent discomfort, it also showed her shopping without her husband and, on a few occasions, reaching for items overhead, again without any apparent discomfort. After viewing these films Dr Van der Walt agreed that having regard to her age the plaintiff seemed to be “pretty active” and revealed no overt demonstration of pain.[39] These observations were broadly consistent with those of Dr Fraser[40] and Mr Zietek[41] after viewing the footage.

[55] It was contended on behalf of the defendants that Mr Zietek resiled from his original position after he saw the surveillance footage.[48] I do not accept that submission for a number of reasons. While it is true that Mr Zietek expressed reservations about the plaintiff’s presentation, on any objective reading of his report, those reservations would have been factored into his assessment of what she could do and what she would probably need assistance with. Also, no reasonable explanation was given as to why the ability of the plaintiff to ride her bike from time to time would mean that she no longer needed assistance with the tasks identified in paragraph 12(c) of his report. Finally, it was tolerably clear to me from his cross-examination that Mr Zietek really stood behind his original assessment.[49]

[56] It is perhaps convenient here to deal with certain evidence concerning the plaintiff’s sternum injury and her current bike riding. There is no doubt that the plaintiff suffered a significant sternum injury as a consequence of the accident, just as there is no doubt that she is now riding her push bike on a fairly regular basis without any apparent pain or other difficulty. There was some conflicting evidence about whether or not riding the bike would exacerbate the sternum injury given by Ms Aitkin and Mr Zietek. I do not consider their evidence to be particularly persuasive as the evidence falls beyond their areas of expertise and seemed to be largely based on their own personal experiences as recreational bike riders. On the other hand, Dr Van der Walt was sufficiently qualified to express an opinion on the matter in my view. He considered that the surveillance footage was not inconsistent with the plaintiff’s complaints as bike riding did not place any particular pressure on the sternum.[50]

[57] There was also an argument advanced on behalf of the defendants to the effect that, because at least into the foreseeable future, the plaintiff’s husband would be the primary care provider and he also benefitted from the assistance he provided (eating, wearing clean clothes and enjoying a neat and tidy household, et cetera), the allowance for past and future care should be discounted to “offset” those benefits to him.[51] I do not accept the submission. This is not a case where the plaintiff or her lawyers have made an assessment of the level of care required. The issue was addressed by experts in the relevant field. In this context, notwithstanding my discounting of Ms Aitkin’s assessments, I respectfully consider the following observation of the Court of Appeal in Shaw v Menzies & Anor[52] to be pertinent:

“While it is true that it will be necessary to assess the needs of a plaintiff in the context of his own situation, nonetheless, in regarding the injured plaintiff as an isolated unit whose injuries generate a need for services to him, the approach in Van Gervan v Fenton, confirmed in CSR v Eddy, is by reference to the cost of providing those services generally in the market. It would not, therefore, appear consistent with that authority to argue that in a family context a shorter period of time would (or should) be devoted to a plaintiff’s needs when consideration is being given to group tasks than the market cost of servicing those needs. Sensibly that assessment must be done on the basis of satisfying those needs as a single unit. This must be so, even more compellingly, when considering future care. Families break down, illness in a partner might intervene, children’s needs change and so on. There was a tendency, evident on the appeal, of substituting the lawyers’ personal understanding (or, more accurately, lack of understanding) about domestic tasks, rather than to defer to an acknowledged expert in the area. There was no sound reason advanced to depart from the model proposed by Ms Stephenson.” (footnotes deleted)

 

David Cormack – Brisbane Barrister

 

 

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