Whiplash claim – no economic loss or G v K – credibility issues

Rossi v Westbrook and Anor [2011] QSC 311

Liability was admitted in this ‘whiplash’ styled claim. The plaintiff’s credibility as to the extent of her impairment, pain or functionality was not believed. On this basis no award was made for gratuitous care or lost income or capacity. In addition, applying the rule in Jones v Dunkel the plaintiff’s claim was not assisted by not calling her husband.

McMurdo J:

[12] Mrs Rossi says that she began to work about four hours per day, five days a week. She says the business was not successful in its trading. Remarkably, she said that it was for this reason that the couple decided to grant franchises, firstly in Australia and later in New Zealand, for the conduct of such a business. About 10 franchises were granted, with the franchisees paying amounts ranging from $30,000 to $40,000, for which the franchisee obtained not only the right to conduct the business but also the necessary training, equipment and software. In this way the Rossis’ undertaking was profitable, it would appear, because Mrs Rossi conceded that “[t]here was a certain amount [from moneys paid by franchisees] that I did use for groceries and that sort of thing …”.

[15] The couple have one child, who was born in May 2007. During her pregnancy, Mrs Rossi was able to continue her work, but the medication for what she says were her symptoms was limited to panadol. She said that this meant that she could not manage her symptoms as well as when she could take nurofen. She said that this additional pain meant that she required further help in the house and that a girl who lived next door was paid to help her for about eight months. There is no evidence, documentary or otherwise, to support that statement. She said that the child was breastfed for about 14 months and that again during this time she was unable to use nurofen.

[17] On this evidence, Mrs Rossi has been in constant pain, very often seriously enough to confine her to bed, since September 2003. Her symptoms have confined her work opportunities, limiting her to an unprofitable business to which she was unable to apply herself on a full time basis. Yet she has sought very little professional assistance. I mentioned that she saw a general practitioner on the day after the accident. According to what was tendered without objection as the relevant medical records, she next saw a general practitioner in May 2004 when she reported neck pain. She went to the same practice in July, August and October 2004 and also in March 2005. But in no case did the notes of those visits refer to any relevant pain. However, on 11 April 2005 she went to that practice complaining of a sore neck, headaches and vomiting. An examination revealed a general tenderness and she was referred for an x-ray and prescribed nurofen and paracetamol. On the following day she went to the Gympie Hospital complaining of pain over the head and neck and of a migraine over the past two days.

[18] The next relevant entry in the records is for 1 November 2005, when she saw a general practitioner in Maryborough. Symptoms of pain in her neck, shoulder and lower back were recorded. On the following day, she returned to that practice with the same complaints. That is the most recent of any record of treatment for the symptoms of which she has given evidence. There are a number of notes of consultations with a general practitioner during her pregnancy, but in no case was this pain noted. The same can be said about her visits to a general practitioner in June, September and October 2007.

[19] For the purposes of this case, she was seen by Dr van der Walt, an orthopaedic surgeon, on 18 April 2006. In his report, Dr van der Walt wrote that she presented with a normal posture, walked without a limp and could easily walk on her toes and heels. But on examining her cervical spine she showed restriction of movement in rotation, latro flexion, flexion and extension. X-rays taken of her cervical spine on 9 May 2006 showed no abnormality. Dr van der Walt wrote that she suffered soft tissue injuries to both her cervical and lumbar spine. Her claim in these proceedings had included one for an injury to her lumbar spine but this was not pressed at the trial. Dr van der Walt believed that her cervical spine injury had resulted in a 5 per cent whole person impairment. According to his evidence, people with this sort of injury usually recover within six months or so, but there is a percentage (about 3% to 5%) who develop a chronic problem which lasts indefinitely.

[26] As was conceded in the address by Mrs Rossi’s counsel, these assessments by Ms Aitken are upon a factual premise, which is that Mrs Rossi was accurately reporting her symptoms and relating her experiences and difficulties in work and at home. The expertise of Ms Aitken was in translating those matters into an appropriate regime for work and domestic assistance. Her professional judgment does not significantly affect the determination of the core question, which is whether Mrs Rossi has exaggerated her symptoms. But the assessment that she required domestic assistance, during the period in which Mrs Rossi was living with Mr Westlake, is quite inconsistent with his evidence and that of his mother, each of whom was called in the defendants’ case.

[29] Possibly, Mrs Rossi needed some care after the accident, and that it was effectively for things which Mr Westlake had always done for her. The evidence of these two witnesses does not of itself disprove Mrs Rossi’s case. But overall, it fairly demonstrates that the assessment by Ms Aitken, based as it is upon Mrs Rossi’s version of things, exaggerates the need for care during the period in which Mr Westlake might have been the person to provide it.

[30] After Mr Westlake, it would be Mr Rossi who was the person likely to provide at least much of the care which is said to have been required. Remarkably, Mr Rossi was not called as a witness. For the defendants, it was submitted that it should be inferred that his evidence would not have assisted Mrs Rossi’s case, on the subjects for which he could have given relevant evidence, being not only the need for care, but also her capacity to work.

[31] Mr Rossi has lived and worked with the plaintiff for at least seven years. According to her evidence, he has had to restructure businesses by engaging other people to do the work which she was unable to do. On her evidence, the decision to go into this signwriting business was made because of her impaired capacity to work. He was a party to that decision. And plainly, he would be able to give relevant evidence as to her need for domestic assistance. There is no explanation for the absence of this evidence. For example, there is no suggestion of some recent discord between them.

[32] In Cross on Evidence, the authors say that the rule in Jones v Dunkel only applies where a party is “required to explain or contradict” something. That phrase comes from R v Burdett, in a passage set out in Jones v Dunkel by Windeyer J.

The authors go on to say:

“What a party is required to explain or contradict depends on the issues in the case as thrown up in the pleadings and by the course of evidence in the case. No inference can be drawn unless evidence is given of facts “requiring an answer”. If there is no issue between the parties on a matter, there is nothing to answer; and if there is an issue between them, but the party bearing the burden of proof has tendered no evidence of it, the opponent is not required to answer.” For the plaintiff, it is submitted that she is not required to explain or contradict anything for which Mr Rossi’s evidence could have been relevant.

[33] In this case, the plaintiff must prove her alleged incapacities to work and to care for herself. These issues are at the heart of her case and she must explain why she is unable to do these things, although she has a full range of movement and, more generally, no objective signs to support her evidence of her symptoms. This requirement of the rule in Jones v Dunkel is plainly established. In my view, the defendants‟ submission based on Jones v Dunkel must be accepted. I infer that Mr Rossi’s evidence would not have assisted her case. Of course, it is not to be inferred that his evidence would have been adverse to it. In Cross on Evidence, the authors say that the rule “permits an inference that the untendered evidence would not have helped the party who failed to tender it, and entitles the trier of fact to take that into account in deciding whether to accept any particular evidence which relates to a matter on which the absent witness could have spoken

…”.

[35] The failure to call Mr Rossi is not, of itself, determinative of the plaintiff’s case. It does not mean that her evidence should be rejected. But the fact that his evidence would not have assisted her case is relevant to that question.

[40] Relevant to her credibility is the disclosure of her own working background within a franchise agreement which she, as the franchisor, made in September 2008. Her business experience was there described as having been the manager of each of the service stations as well as the manager of the jewellery store. In no case was that correct. When this was put to her in cross-examination, she claimed that she had neither written nor read that part of the document. It may be accepted that the document was compiled by another person, who had some understanding of the requirements for disclosure in a franchise agreement. But the fact that she signed on, amongst others, this very page of the document, hardly inspires confidence in her as a reliable and credible witness. Her business experience as the franchisor was important in that context and this was a serious misrepresentation of it.

[41] The plaintiff’s case depends upon an acceptance of her evidence of the existence and extent of her symptoms. It has the support of the opinion of Dr van der Walt. But he saw Mrs Rossi more than five years ago and upon his examination, her range of movements was limited. That is in stark contrast to each of the many assessments of her range of movement which have been undertaken by others, including Ms Aitken.

[42] I accept the opinions of the physiotherapists as I have set about above. There is a poor correlation between what Mrs Rossi was able to do in the various tests (and her appearance in doing so) with what she claimed was the pain which she was then experiencing. Perhaps Mrs Rossi has a remarkable degree of fortitude in coping with the symptoms which she describes. Nevertheless, the evidence of the physiotherapists provides a significant indication that her symptoms are exaggerated.

[43] She is unable to establish her case by reference to her work history. Of course, she gave evidence of difficulties in working in the jewellery store, the service stations and in her own business. But there is no evidence to support any of those claims. She left the jewellery store because of particular personal circumstances. She cannot point to a single day off work during the time that she worked there. I do not accept that she would have taken another job in a shop but for her injuries. It is probable that instead she worked in the service station to assist Mr Rossi with that business.

[44] There is the further factor that she has not seen a doctor about these symptoms since November 2005. She has never taken up the suggestion of physiotherapy. There is only her own testimony as evidence of her use of medication.

[46] Taking all these matters together, I am not persuaded to accept the substance of her evidence. It must be accepted that she suffered an injury to her neck and that there were some symptoms of the kind which she has described. I accept that there are some ongoing symptoms, but not nearly to the extent related by Mrs Rossi’s evidence. I am not persuaded that, at any time, her symptoms would have been serious enough to require domestic assistance as she now claims or to affect her earning capacity. Upon those premises, I turn to the quantification of her damages.

[47] Because these injuries arose after 1 December 2002, general damages must be assessed according to an injury scale value (ISV) as referred to in s 61 of the Civil Liability Act 2003 (Qld). Section 3 of Schedule 3 of the Civil Liability Regulation 2003 (Qld) (“the Regulation”) provides that where there are multiple injuries, the range of ISVs for the dominant injury is to be considered in assessing the ISV but that a higher assessment may be made for the circumstance that there are multiple injuries. It is common ground that the dominant injury here is that to the neck. The appropriate item of Schedule 3 of the Regulation is item 89, a “minor cervical spine injury”, for which the range is 0 to 4. A mark-up is appropriate for her psychological injury. Ultimately, the defendants concede that general damages could be assessed at $11,000, which represents an ISV of 10. On my findings, it could be no higher than that. General damages will be awarded in that amount.

[49] As should be clear from the above, I am not persuaded to award any component for economic loss. Mrs Rossi’s income when she was employed at the jewellery store was unaffected by her injuries. It is not demonstrated that her work history after that point resulted in less income for her than would have been the case absent her injuries. Her claim is made upon the basis that she would have continued to work in some employment in a shop. She was able to do that during a period of most of the year from the accident, when her symptoms would be expected to have been most significant.

 Injury  Item & ISV  Uplift  Occupation  Past loss of income  Future loss of income  Gratuitous Care
$11,000

minor cervical spine injury – Dr van der Walt 5%

Item 89

ISV 10

Retail & self employed

 

 

Credibility issues

Brisbane Barrister – David Cormack

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