Mtsambiwa v Zagari [2019] WADC 154 (a decision of O’Neill DCJ)


The accident

The plaintiff was involved in a motor vehicle accident on 30 October 2017.

The plaintiff’s vehicle had been stationary at traffic lights, with the defendant’s vehicle (also stationary) behind him. After the traffic light turned green, the defendant commenced moving but the plaintiff did not, resulting in a collision (with the speed and force of the impact being a matter of substantial dispute).

The plaintiff claimed that he was jolted forwards as a result of the impact, but was able to brake and avoiding hitting the car in front of his. He said there was significant damage to the rear of his vehicle. The defendant claimed that she rolled into the plaintiff’s vehicle with no damage to her vehicle and (at most) a scratch to the plaintiff’s vehicle’s paintwork.


The plaintiff made a claim for damages, alleging a whiplash associated disorder arising from the accident. He relied upon two reports from GP Dr Andrew Fairhurst, based on Dr Fairhurst’s assessment of the plaintiff. The defendant accepted that the accident occurred, but disputed the force of the impact and that as a result of it, the plaintiff had been injured.

The Court was therefore required to determine whether the accident had caused the injury alleged by the plaintiff and, if so, what was a reasonable award of damages to compensate for his injuries.

The plaintiff’s credibility was in issue, in the context of what was suggested to be a ‘harvested claim’.


Claim harvesting

O’Neil DCJ observed that the plaintiff did not report the accident (as is required under the relevant Western Australian legislation) until 17 January 2018 (about four months after it occurred), after he consulted a doctor that day, the first time he had seen a doctor about alleged injuries arising from the accident.

He had made the appointment to see that doctor through an online application form which called for a response as to whether the condition in respect of which treatment was sought related to a motor vehicle accident. He completed and submitted the form, and indicated he had been injured in a motor vehicle accident. That day, he saw a doctor (not his regular GP, apparently), and later the same day, he received a telephone call from someone asking him whether he wished to speak to a lawyer. He indicated he did, and his call was transferred to a paralegal in the employ of the firm which became his solicitors. The same day, he completed an online crash report, in which he claimed the defendant’s vehicle had struck his at 30 km/h.

The plaintiff admitted in cross examination he had ‘no idea’ about the speed of the defendant’s vehicle, and agreed he had probably had ‘help’ completing that section. Of this troubling evidence, the Judge observed [at 182]:

The willingness of the plaintiff to allow such a report to be submitted and remain uncorrected does not engender confidence in his evidence.

The plaintiff also admitted in his evidence that he had purchased some insurance to indemnify him against any liability to pay the defendant’s costs in the event his claim was unsuccessful.

While the Judge does not use the term ‘claims harvesting’ anywhere in the judgment, the description would be apt in the circumstances related above.

Accident circumstances

His Honour noted the speed and forces involved in the accident were in dispute.

The plaintiff claimed the defendant’s vehicle struck his at 30 km/h, whereas the defendant said the impact speed was 2 km/h.

Although the plaintiff claimed his vehicle sustained significant damage with the bumper having been dislodged and the rear / reversing sensors damaged, and he was left in no doubt that this was in issue in the proceedings, rather tellingly, he produced no photographic evidence of the alleged extensive damage to his car for the Court’s assistance. The plaintiff was obviously in a position to provide that evidence, and his failure to do so was a matter pointing away from the truth of his evidence as to the extent of that damage, and of the speed and forces involved in the collision. His Honour also observed that had such damage actually been caused by the defendant, it would not seem compatible with the plaintiff having been satisfied his vehicle was safe to drive, and in fact driving from the accident scene, as was his evidence. The defendant produced photographs showing there was no real damage, which she alleged were taken immediately before the repairs were made to it. However, she could not prove when and by whom those photographs were taken, and objection was taken to them by the plaintiff’s counsel, so they were inadmissible.

Ultimately, without admissible photographic evidence, his Honour determined the accident had been a very low speed one, accepting the defendant’s evidence about how it occurred. His Honour noted that the higher speed at which the plaintiff claimed the accident occurred was wholly inconsistent with the lack of any significant damage to either vehicle.

Medical treatment

His Honour observed that the plaintiff overstated the extent of the treatment he had required. He also observed that while the plaintiff reported ongoing neck pain, he had been undertaking ‘vigorous physical exercise’ (including ‘boxercise’ classes) and said [at 80]:

By any objective standard, if the plaintiff was indeed experiencing neck pain he was managing it extremely well.

His Honour was particularly scathing of the evidence of the plaintiff’s medical witness, Dr Fairhurst, stating that [at 142]:

I do not accept Dr Fairhurst’s evidence. There are troubling inconsistencies between the plaintiff’s evidence in court, and the history taken by Dr Fairhurst, and relied on by him in forming his opinions. Quite apart from that, Dr Fairhurst struck me as a witness who was willing to venture an opinion based on little factual support, even when it was contrary to other information that he had (such as Dr Lo’s medical records and the report from Ms Schuster – both treating practitioners) and what he was able to see with his own eyes about the absence of limitation of movement in June 2019. He seemed eager to volunteer second-hand information with respect to subject matter that he had no real expertise in himself.


O’Neil DCJ did not accept the plaintiff’s evidence as to the speed or forces involved in the accident or his alleged ongoing symptoms. That is, His Honour was unable to accept that the plaintiff had been injured as alleged. Accordingly, the plaintiff’s claim was dismissed.

His Honour observed that even if it he were to accept that the plaintiff had been injured in the accident, the medical evidence did not support an award of general damages above the applicable statutory threshold and he would only be entitled to a nominal allowance for special damages.

Implications of decision

This decision draws attention to what are described as ‘claims harvesting’ practices.

There were a number of features of the plaintiff’s claim, and the circumstances giving rise to it, which should, if encountered in a CTP claim in any jurisdiction, cause the claim to be very closely scrutinised.

The Judge also had serious concerns about the plaintiff’s reliability, and his failure to adduce important evidence which would have been easy for him to obtain (for example, photographs of the alleged damage to his vehicle – when it had been plain for a long time that the speed and forces involved in the accident were in serious contest in the claim), and these concerns translated into adverse findings on critical factual matters. To compound that problem, he exaggerated his complaints, and his qualified medical evidence came from a doctor whom the judge also considered most unreliable.

The case underscores the value of thorough preparation and early referral for expert legal advice.

Further information / assistance regarding the issues raised in this article is available from the author, Daniel Coster, Senior Associate, or your usual contact at Moray & Agnew.