Baines v Liveris
[2003] WADC 238
•7 NOVEMBER 2003
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: BAINES -v- LIVERIS [2003] WADC 238
CORAM: HH JACKSON DCJ
HEARD: 14-21 JULY 2003
DELIVERED : 7 NOVEMBER 2003
FILE NO/S: CIV 2116 of 1999
BETWEEN: RAYMOND ANTHONY BAINES
Plaintiff
AND
CON LIVERIS
Defendant
Catchwords:
Negligence - Assessment of damages - Motor vehicle accident - Low back symptoms
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943, s 3A, s 3B, s 3C, s 3D, s 3E
Result:
Damages assessed in the sum of $17,675
Representation:
Counsel:
Plaintiff: Mr G Droppert
Defendant: Mr J R Brooksby
Solicitors:
Plaintiff: Dwyer Durack
Defendant: Greenland Brooksby
Case(s) referred to in judgment(s):
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Hendrie v Rusli [2000] WASCA 249
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Nyssen v Foy [2000] WADC 210
Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997
Case(s) also cited:
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Bowen v Tutte (1990) A Tort Rep 81043
Bresatz v Przibilla (1962) 108 CLR 541
Brown v Rodrigues, unreported; FCt SCt of WA; Library No 970334; 3 July 1997
Cameron v Sullivan [1962] QWN 32
Campbell v Wilson (1970) 1 NSWR 333
CSR Readymix (Australia) Pty Ltd v Payne (1997) A Tort Rep 81432
Graham v Baker (1961) 106 CLR 340
Medlin v State Government Insurance Commission (1995) 182 CLR 1
National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569
Nicholson v Nicholson [No 2] (1994) 35 NSWLR 308
Thiess Properties Pty Ltd v Page (1980) 31 ALR 430
Thomas v O'Shea (1989) A Tort Rep 80251
Van Velzen v Wagener (formerly Robertson) (1975) 10 SASR 549
Wright v Shire of Albany (1993) A Tort Rep 81239
HH JACKSON DCJ:
Background
The plaintiff was born on 4 October 1959 and, after leaving school, has worked primarily as a labourer and truck driver.
In February 1998, he was living with his de facto wife and their two children on a 10‑acre farm property near Toodyay and working as a sub‑contractor for one or other of the Boral group of companies.
After a race meeting at Ascot Racecourse, he and others were standing near a bar at the course discussing the day's racing and drinking beer. The plaintiff was struck by a Mitsubishi Magna sedan driven by the defendant. Liability for that is accepted by the defendant even though the exact details of the event are in dispute.
The plaintiff seeks damages for injury and loss arising therefrom.
History of the litigation
The writ herein was issued in May 1999.
The action originally came on for trial before a Commissioner of this Court in July 2001. After delivery of his decision, the matter was sent back to this Court by the Full Court of the Supreme Court for a new hearing.
Counsel agreed before the commencement of the trial before me that the evidence given by a number of witnesses at the original hearing would be tendered as exhibits so as to be part of the evidence before me. In a number of cases, the witness was also re‑called by consent to give supplementary evidence.
The new hearing before me was listed for eight hearing days. In fact, it spread over six of those days but, on most of those days, time was lost because of the unavailability of witnesses, so that the hearing was disrupted and protracted thereby.
I have not read either the reasons given following the original trial, nor those of the Full Court when allowing the appeal and ordering a re‑trial.
Pleadings
The re‑amended statement of claim pleads that:
"4.As a result of the accident the plaintiff sustained injury, required medical treatment, has permanent residual disability, has endured pain and suffering, inconvenience and loss of enjoyment of life, has incurred and is continuing to incur medical expenses, has sustained loss of earnings and loss of earning capacity and has incurred other special damage.
PARTICULARS OF INJURY
(a)Back soreness and stiffness;
(b)bruising;
(c)neck and mid back stiffness;
(d)lower left sided lumbar pain radiating up the paraspinal muscle region and into the shoulder and lateral cervical spine region on the right;
(e)soft tissue and ligamentous injury of the cervical and lumbar spine.
(f)development of severe major depression secondary to the physical injury
(g)alcoholism
PARTICULARS OF TREATMENT
(a)Attendance upon general and specialist medical practitioners;
(b)x‑rays;
(c)CT scan;
(d)physiotherapy;
(e)blood tests.
PARTICULARS OF RESIDUAL DISABILITIES
(a)10% disability of the total spine;
(b)pain in the thoracolumbar spine; and
(c)pain on the right side of the cervical spine;
(d)difficulty working as a forklift driver;
(e)difficulty lifting heavy objects;
(f)neck stiffness;
(g)recurrence of back pain when the plaintiff undertakes heavy manual work.
PARTICULARS OF PAIN AND SUFFERING,
INCONVENIENCE AND LOSS OF ENJOYMENT
OF LIFE(a)Frustration at the plaintiff's inability to undertake his pre‑accident employment;
(b)frustration and stress associated with ongoing pain;
(c)frustration and stress with reduced mobility;
(d)frustration and stress at back pain after physical activity;
(e)fear of financial loss due to the plaintiff's inability to continue in his pre‑accident employment."
The South Hedland action
The plaintiff, whilst engaged or employed by Boral Building Services to carry out work associated with the construction of a hot briquette iron plant for BHP Direct Reduced Iron Pty Ltd ("BHP") in South Hedland in February 1997, suffered injury whilst driving a forklift vehicle.
The front wheels of the forklift went down into a ditch, raising the back of the machine which then came down, jarring his back. After the accident, his whole back ached. He came to Perth and had chiropractic treatment, returned to Port Hedland, and saw a Dr Evans who arranged for an x‑ray. The x‑ray report is Exhibit 2. No fracture or paravertebral or soft tissue swelling was then evident. The plaintiff described his then symptoms as being in the middle of his back. He was advised to "take it easy for 6 to 8 weeks", which he did. He also underwent massage on three occasions which "seemed to solve the problem of the knotting and spasms". By the end of May, he had returned to Perth on normal truck driving and cartage duties. This often involved repetitive lifting and loading of significant weights. He was being paid $32 per hour and had to supply his own vehicle. For trips outside Perth, he also received a rate of $1 per kilometre travelled each way.
Cross‑examined, he said he had been on light duties for four months or five months, but then resumed full duties on returning to Perth in May. Basically, he said, he was recovered "between 85 and 95 per cent, but I was certainly doing my work no problems". He agreed that solicitors on his behalf issued proceedings in June 2000 and that he had seen the statement of claim therein.
In June 2000, solicitors on his behalf issued a writ of summons against BHP as occupier of the site concerned. The action is number 1662 of 2000 in this Court. The original statement of the claim and the final papers for the Judge are Exhibit 17. A minute of proposed re‑amended statement of claim filed in September 2001 is Exhibit 23. The statement of claim pleads the following particulars of injury:
"PARTICULARS OF INJURY
(a)T6‑L1 back pain;
(b)severe jarring of the lower back;
(c)mild compression fractures to the vertebral bodies of T11 and T12;
(d)intervertebral disc compression causing mechanical pain and dysfunction;
(e)jarring of the lumbar facet joints;
(f)neck pain;
(g)back soreness;
(h)severe muscle spasms around the mid torso and severe central thoracic pain."
The statement of claim pleaded that as a result of the accident, the plaintiff sustained the following residual disabilities:
"(a)Restricted movement of the lumbar spinal region;
(b)tenderness and tightness of the left erectospinae muscles with point tenderness over the L4 lumbar vertebrae;
(c)10% disability of total spine."
It is then pleaded that:
"As a result of the accident the plaintiff has endured pain and suffering, inconvenience and loss of enjoyment of life.
PARTICULARS OF PAIN AND SUFFERING,
INCONVENIENCE AND LOSS OF
ENJOYMENT OF LIFE(a)Frustration at the plaintiff's inability to undertake his pre‑accident employment;
(b)frustration and stress associated with ongoing pain;
(c)frustration and stress with reduced mobility;
(d)frustration and stress at back pain after physical activity;
(e)fear of financial loss due to the plaintiff's inability to continue in his pre‑accident employment."
That action was listed for trial in January 2002 but, in December 2001, it was settled. Although the parties consented to orders that the plaintiff's action be dismissed, the plaintiff's evidence is that the terms of settlement were confidential but involved payment by the defendant of $20,000.
It was put to him that he was claiming restricted movement of the lumbar spine in June 2000 in those proceedings. He said he had instructed his solicitors to file an amended claim. However, there is no evidence of that on the Court file.
He said, in re‑examination, that he had instructed them in late‑2000 to drop any claim for loss of earnings and for medical expenses as there had been none of these, and to delete references to neck pain and to mild compression fractures at T11/T12. He was shown a document headed "Minute of Proposed Reamended Statement of Claim" which incorporated these changes and a letter dated 26 September 2001 attaching the same from his solicitors to the solicitors for the defendant in those proceedings, Exhibit 23.
The accident - The plaintiff's evidence
He said that on 21 February 1998, a Saturday, he had gone to the races at Ascot before the second last race. After the last race, he was chatting to the trainer of his horse, which had run second, and others. His de facto was in the general area with their children. As well as the trainer, Murray Dillon, and himself, others in the group included George Maslin, Des Taylor and John Clift. They were drinking beer:
"Basically all I can say is I was just standing talking directly to Murray and I didn't see any cars coming or that because I wasn't looking but the car has knocked me down or knocked me over. It didn't knock me to the ground; I shouldn't say that.
... It's come from my left, as such.
... I was standing in what's actually the designated bar area. The main bar they call it at Ascot. Then they've got the driveway as you come through. It's not exactly narrow. It's probably about 3 metres wide that driveway.
Are you on the edge of the bar area?---Yes, I am.
If you had turned and looked to your left you would have looked down the driveway?---Yes.
But you weren't looking to your left, you were looking straight ahead, talking to the trainer of your horse?---Yes, ...
On one side was Clift and on the other side was Maslin?---Yes.
That's at either side of the trainer, Murray Dillon?---Yes.
And to your right I think you said was someone by the name of Des Taylor?---Mm.
You say you didn't see the car?---No.
What happened to you?---I was just standing there talking and next thing I felt a brushing behind the back of my legs and I just got belted from what I reckon was the base of the mirror, the rear‑view mirror, on the side of the car.
That would be on what side of the car? Passenger or driver's side?---Passenger side, yes.
After you had this brushing against the back of your legs what effect, if any, did that have on your or your balance, your posture?---I think it just threw me a little bit off balance and I arched backwards and that's where it's made the connection with my back, down in the lower left‑hand side. The top of my buttocks. Just below my belt line, I suppose.
How hard did that feel to you as an impact?---It was a fairly severe impact, mate. ...
... Des Taylor put out his right arm to stop me from falling and Johnny Clift did that as well. ..."
He described Clift as being about 1 metre to 1‑1/2 metres from him and that, if not so restrained, he would have fallen to the ground further forward.
Photographs of the area showing the plaintiff's standing position and the direction of travel of the car are Exhibit 1A to Exhibit 1E.
The plaintiff was cross‑examined about the event. He confirmed he had not seen the vehicle approach and so could not estimate its speed. He was brushed or rubbed on the back of the thighs, arched his back throwing his hips forward and was knocked off balance when the car mirror, he assumed, struck the top of his buttocks. He suffered bruising just below the belt line on the left hand side on and above the fleshy part of the upper left buttock. The bruising lasted for about a week and he showed it to Dr Meyerkort.
The defendant had, prior to trial, arranged to have made a videotape visual reconstruction of the event, Exhibit 46. This was shown to the plaintiff and to others, and evidence was given as to its presentation and contents. The videotape, in my view, carries little weight or conviction. Not only does it lack independence of origin, the participants were relying on the statements of others as to the events to be re‑enacted and anticipating a result. I place little weight on it.
Subsequent events
The plaintiff was then asked:
"What did you do after you realised that something had happened to you?---Well, basically I regained me composure I suppose and I just - everyone said, 'Are you all right?' kind of thing. I said, 'Yeah. I have just been hit by that car'. Anyway I saw that it had pulled over behind the bookmaker's stand so I thought I had better go and have a talk to the bloke, you know, which happened. I went over there and Mr Liveris - ... - was sitting in the car. ... He had both hands on the steering wheel and he had a look on his face like his mind was ticking over a bit thinking. I have no doubt he knew what happened.
Did you say anything to him?---Well, ... I said, 'Don't you bother stopping when you knock people over?' He just sat there for a bit and then he looked at me and he told me to piss off or words to that effect, yeah.
...
Did you take that advice from Mr Liveris and go away?---Well, mate, I was pretty agitated by that stage. ... I do regret the action of course now - - -
What did you do?---Well, I did abuse him and I kicked his car door and, you know, actually had a bit of a run‑in with the other bookmakers that were there too.
Did you return to the group that you were with back at the bar?‑‑‑I did, yes.
Came to have a conversation with a racecourse detective?‑‑‑Yeah. A chap called Greg McIntosh. ...
...
Did Mr Liveris come back to where you were?---He came over and Mr McIntosh said, 'Well, what happened?' and Mr Liveris said I had stepped back into his car as he was driving past. ..."
Cross‑examined, the plaintiff agreed that he had kicked the car driven by the defendant after being, he said, abused by him. Later, the owner of the car had come over and each also then abused the other.
Injuries - The plaintiff's evidence
The plaintiff said he was sore in the lower back later that night. The following day, both his lower back and neck were very sore so, on the Monday following, he saw his general practitioner, Dr Bryan Meyerkort. Dr Meyerkort arranged physiotherapy under Mr P Fazey, which he commenced on 26 March. He described his then symptoms as being in the left lower side of his back, the right hand side of his neck and the middle of his back. He continued physiotherapy approximately weekly for about 12 months. After a break, he returned in mid‑2000.
Although Dr Meyerkort had told him to take a week off work, the plaintiff continued to work. Physiotherapy helped him remain at work although, he said, his back became increasingly sore. He went to physiotherapy early in the morning to "loosen up" for work. Physiotherapy helped reduce the neck symptoms.
During late‑1998, the plaintiff saw Mr Peter Watson, who recommended an exercise program. The plaintiff acquired and used a home gym and did some swimming. He requested a rehabilitation assessment. The Insurance Commission refused to fund it or further treatment, Exhibit 13. Physiotherapy ceased in early‑1999. In June, the plaintiff saw a general practitioner, Dr P Hogg, whose report is Exhibit 7. He saw Dr Hogg for about six months, during which time his tender left side L4/L5 spine was injected a number of times. This provided short‑term pain relief. The plaintiff said his back was increasingly sore. Boral allowed him to do less heavy work. He was asked:
"What was happening on the home front, ... First of all in this period, say, February 1998 through to February 2000, what sort of work were you doing around the property at home?‑‑‑Virtually nothing. One way I learned to help alleviate the pain or whatever was I was drinking a lot more beer. It sort of numbed me, I suppose. ... All the duties I had with the animals and just general maintenance around the place, I wasn't doing it because I wasn't capable of doing it. I was just worn out. Come the weekend all I'd want to do is try and relax so I could get myself going for the following week to come, basically. ... I pretty much just would get home and a lot of the time I just stayed in my room."
He said that during this time, he had constant pain symptoms, not simply after a day's work. He added, in evidence‑in‑chief, that the left low back pain is "not nearly as bad ... though now".
After Dr Hogg retired, he saw Dr B Rogers, whose reports are Exhibit 8, in October 1999 and March 2000.
In February 2000, he engaged a sub‑contract driver to drive his truck:
"... I think I'd just worked myself to the limit. I couldn't get out of bed so I rang Boral up and said I wouldn't be in that day and I just had a chat with the state manager and came to an arrangement to get someone else to drive for me. I wasn't capable of driving any more.
By that time, February 2000, what was the state of your marriage relationship?---Yeah, well, it was pretty grim by that stage. We were sleeping in different rooms and had been for some months. I was really snappy I suppose towards - not just Denise but both of my children as well. ...
After you ceased work, what did Denise do?---I think she'd just about had enough. She was totally fed up with the whole situation. I couldn't help around the place.
Did she stay?---No, she didn't. There was constant arguing and whatever and she left I think it was on 3 March in 2000.
..."
In mid‑2000, he received acupuncture from Dr Soh "which pretty much fixed the problem". He denied drinking alcohol excessively prior to the accident at Ascot in February 1998, although agreeing that "probably most days I'd have a few beers".
He was questioned concerning the circumstances in which he came to cease work for Boral in July 2000:
"... Basically I got a phone call from Ron Larkins ... I had a meeting with them and pretty much I walked away realising I'd worked my last day at Boral. ...
Why did you come to that conclusion?---He [Les Broach] wasn't prepared to allow either it be myself or whoever worked for me to do any more yard work, which is probably understandable in its own way, but the main point that he made was I wasn't allowed to have the vehicle on the premises. ... He said I could tender a higher rate if I wanted, purely for the cartage side of things, but the other thing that really put the damper on it was he refused to stick to the practice that's involved in all these companies and has been for years where you get paid both ways on your trip. ... they would only pay the trip one way so in effect you're getting half the rate. I would have had to put in a very high rate to make it worthwhile, ...
... I was on a $1000 a week minimum which I never actually had to invoke through them. It was an arrangement that the company was quite happy. You see, I'd been with them a long time. I used to help out on their stocktakes, I was prepared to go away and work for them and that quite often got them out of the deep end, I suppose, ... I had no guarantee, if you like, any more in the place. I was just another - they could get any number of courier companies to come in and do their work if they wanted and that was that. So I realised it was the end of the road for me.
So whatever they were offering you for the future what do you say about the arrangement that you'd had in the past?---It was nothing like the arrangement in the past. ... One comment Les Broach did make was, 'We can't afford you.' Now, I gave a lot of good service to that company. I'm not saying I was their greatest employee, far from it probably, but I still think I was rather harshly treated all the same."
After speaking to the relevant union, he took unfair dismissal proceedings against Boral Formwork and Scaffolding but, in the end, let the matter lapse, Exhibit 20. He sought reinstatement and, presumably in the alternative, payment of redundancy benefits and pay in lieu of notice:
"Had you been taking any medication in the two years when you kept working?---I'd been given different things. Clinoril was one for anti‑inflammatories. I was taking heaps of Panadols and that too but I didn't like the Clinoril. They were no good for my stomach I didn't think.
What about your sleep pattern?---Well, that was a problem more so with my neck than anything I believe. I found it hard to get more than 3 or 4 hours sleep a night. I'd just wake up, and that was the other thing; I was exhausted even before I got up to go to work.
Were you able to turn down work at Boral during that period?‑‑‑Well, I was. ... I ended up doing a lot more work in the yard mainly because it was a lot less physical than either being out on the road or going to jobs where you'd have to walk around the whole site collecting gear and whatever."
In July 2000, he said he was having a lot of problems with his lower back. He saw Dr B Meyerkort and had physiotherapy with Mr Fazey. He underwent a rehabilitation assessment and program between April and November. He was referred to Dr H Hamzah who gave a facet joint injection, but which did not produce permanent relief. He saw Dr J Rosenthal, Professor A Harper and Mr R Edibam for medico‑legal assessments. He also saw a local general practitioner, Dr Walkey, for counselling after the family break‑up and was given anti‑depressants. He had lost his family and his business and became suicidal.
After discussions with his brother, he decided to establish a business in Toodyay, selling second‑hand goods. The business name, Moondyne Joe's Hideout, was lodged on 13 July 2000, Exhibit 21, and a flier was produced, Exhibit 22. It offers "free delivery to the metro area for large furniture items or purchases over $200". The business opened in August 2000 and closed about 12 months later. Whilst it did not make money, it helped him to meet people, to talk and socialise. He spent three days or four days each week in the business. Moving and carrying furniture and other items caused problems, so he got others to help. He found lifting from ground level difficult.
In December 2001, he sold the farm property. It took him two days to clean up rubbish and remove it to the tip, a task which should have taken only a few hours, because of his pain. He moved to live at Toodyay Racecourse, rent free, as unpaid caretaker:
"Apart from keeping an eye out for vandalism, what else do you do around the racetrack?---Well, I was told I didn't have to do anything really, but I do look after the reticulation. It's pretty old and antiquated and breaks down a lot, but obviously you need to put water on the track so that's got to be kept going. I do a bit of sweeping up in the restaurant after the pony club and that have been there occasionally. Move sprinklers. That's about the extent of it though.
Do you still have your home gym?---No, I had nowhere to put it at the racecourse so I gave it to someone.
Do you do any exercise?---I still do all the stretching exercises. Every day I go for a walk around the track, which is a mile around. In the warmer months I was swimming in the dam there, but it's too cold for that now.
What do you say about feeling depressed?---As far as I'm concerned I'm well and truly over it now. It's been a bad chapter of my life that's - well, it's gone.
In terms of current alcohol consumption, are you still drinking?‑‑‑Yes, I still drink most days. Well, put it this way, I limit myself to a block of beer nowadays. I have three or four or five cans a night or most nights and, you know, prior to that I was drinking probably four times that amount."
His son has stayed with him for some periods. He has not done paid work in the 12 months before trial, although he has sought work in capacities such as a console operator at "most of the businesses in Toodyay". He assists also in fundraising for the racing club on a voluntary basis. He said he could not return to truck driving.
He said that, at present, he occasionally takes an anti‑inflammatory, Vioxx, and, if feeling particularly sore, Panadeine Forte.
The plaintiff, under cross‑examination, said that he had suffered neck problems, mainly in the right hand side and in the whole of his back, although the symptoms "plateaud" in mid‑1998. During this period, he increased his drinking and used various medications such as Panadol, Clinoril and Naprosyn. It was put to him that, on 15 October 1998, Dr Meyerkort reported that "he still experienced some intermittent pain over the left iliac crest but was on no medications". He was unable to explain that, which he said was in error.
He did not agree either with the comment by Mr Watson in a report in September 1998 that he "has difficulty with symptoms in the thoracolumbar spine and the right side of the cervical spine at the end of the working day". He said he had constant symptoms throughout the day.
In February 1999, Dr J Rosenthal reported:
"He doesn't want to take medication but he has been having physiotherapy."
He maintained that he was taking Panadol frequently, but informed Dr Meyerkort and Dr Rosenthal that Clinoril and Naprosyn caused stomach upsets. However, he agreed that he had probably not used them within 12 months of the accident.
The plaintiff was cross‑examined about diary entries he made in his diary for the period from 3 February 1997 to 3 April 1997, Exhibit 18. The entries show him complaining of low back symptoms regularly throughout that period. He said that although he tried to not drive forklifts and to do lighter yard work after the accident in 1998 and throughout 1999, his back was in constant pain, made worse by driving and other work. He was, in that period, working some 50 hours per week. His de facto wife had ceased paid employment in about September 1998. That was one reason for continuing to work himself, he said.
The plaintiff kept cash books, and those of the period from July 1996 to 30 June 2000 are Exhibit 19.
He agreed that the work he had done whilst at South Hedland had been better remunerated than that in Perth. He also agreed that his earnings in the months after the accident in February 1998 had remained consistent over the period. In fact, his taxable income for 1998/1999 was a little higher than that for the preceding year. It was put to him that after expenses, he was struggling financially and had sold one truck and a home unit after his wife ceased work, and that he had said so at the earlier hearing. He agreed that he had said so, but insisted that, primarily, he wished to consolidate his debts, given that his lower back problems were worsening.
In February 2000, he engaged Mr Clift to drive his truck for him. Subsequently, Mr Clift ceased and Mr Campbell was engaged to do so until, in July 2000, the plaintiff's relationship with Boral ceased. His relationship with Ms Pontifex had already become difficult. He was drinking alcohol, smoking cannabis and not helping around the property. She left in March 2000 and his drinking worsened. He blamed his inability to work, his drinking and the breakdown of the relationship on the racecourse accident.
He agreed that he had had liver function tests in November 1996. He was asked:
"Because you were drinking, and had over the previous 10 years approximately 10 cans a night?---I wouldn't say I'd been drinking that every day but I did enjoy a drink.
You averaged that?---I don't know if I averaged that but I did enjoy a drink, that's for sure.
That's what you told Dr Abrugiato, isn't it - about 10 cans a night?---I didn't think I told him for 10 years though. In fact, I used to always drink midstrength beer anyway so I'd only equate that to half the amount.
You were told to cut down anyway, weren't you?---And I certainly did, Mr Brooksby, yes.
Dr Abrugiato, according to when Dr Mustac saw you:
Has consumed alcohol heavily for 10 years, drinking 10 stubbies a day?
---I don't recall saying that. ... I wouldn't say for 10 years but for a while there I was drinking probably 10 cans most days of midstrength beer. ... Dr Abrugiato ... just said to ease up a bit and I did. I went and worked up in Port Hedland.
... when I went up there I cut back to four or five cans of beer a day."
He said he had organised the shop premises before ceasing work for Boral because of his worsening back. It was put to him that he had told both Professor Harper and Dr Rosenthal later that he was "doing part time work for a friend in a junk shop" or "helped a friend who had a local shop occasionally". It seems that he did that also, as well as the time he spent in his own business, in order to learn the trade.
He estimated that he works for about two hours daily at the racecourse and added that he is also looking for work in Toodyay which does not involve too much bending or heavy lifting.
He said he now smokes 10 cigarettes to 15 cigarettes daily and drinks about 30 cans of midstrength beer weekly.
The plaintiff is about 5 foot 10 inches in height, clearly overweight and florid in complexion. Nonetheless, he sat in Court in a relaxed and comfortable manner and without apparent distress throughout the trial. The plaintiff is engaged to Ms Marcia Flude. His evidence is that he finds it too uncomfortable to put his arm around her, and also that he finds it more comfortable to walk faster than she wishes. I note that during the days of trial, he at times sat back in his chair with one or other or both arms extended along the back of the chairs parallel to the ground for extended periods.
Mr J Clift
Mr Clift was one of those with the plaintiff at the time of the accident. In an informal written statement, he later described the defendant's vehicle as travelling "at approximately 10‑15 ks struck Ray in the back (the passenger side) knocking him forward also knocking his beer from his hand", Exhibit 33. His evidence given at the original trial was admitted by consent before me, Exhibit 26, and supplemented by further oral evidence. In the original trial, he described the accident in more detail, describing a loud bang, and the plaintiff being projected forward as if hit from behind. He then described the confrontation which followed. The plaintiff had been a friend for some years. He visited the plaintiff's farm quite often and knew his family. He and the family had previously done work on it. Over "the last couple of years" before the hearing in July 2001, the relationship between the plaintiff and his wife had deteriorated badly.
Prior to the accident, the plaintiff had "not really" complained of physical limitations. The two of them had built sheds together. After it, he had "never stopped complaining".
The plaintiff had not done any work on the property since the accident. He had asked Mr Clift to drive the plaintiff's truck because he could not do so any longer. Mr Clift had done so for about three months or four months in 2000. The work was very physically demanding.
Cross‑examined, he was asked:
"What part of the vehicle do you say struck Mr Baines?---Well, I know the wing mirror hit him. That's for sure.
How do you know that?---Because I'm sure when I looked over at the vehicle it was either pushed back against the vehicle or it was hanging down.
The mirror had either collapsed inwards or was detached?‑‑‑Yeah. It wasn't sticking out so you could see. You wouldn't be able to see. It was either broken or pushed back. I didn't go over and inspect it. I only looked across and seen it. I don't know whether the car itself hit him or not, but I do know that that did.
Right. The mirror hit him?---Mirror did.
And you say Ray went over and wanted to pull him out of the car and pull his head off. What did he do precisely?---He leaned on the car and he spoke to the chappie inside. He was very agitated, very heated, and obviously the chap didn't want to get out. I wouldn't have got out either I don't think.
Why?---Well, he might have pulled my head off. He stood back and vented his anger on the door.
How many times did he kick it?---Only the once that I remember. He might have hurt his foot and decided not to do it again.
You say he tried to kick in the door and couldn't quite manage it, so he really had a whack at it, did he?---Yes."
He was asked how hard the plaintiff had been struck and pushed forwards and said that, had he and the person next to him, Mr Des Taylor, not restrained the plaintiff, the plaintiff would have been knocked down.
Cross‑examined, he said that after the accident, the mirror had been hanging down.
He did not notice the plaintiff arch his back out of the way or take a step forward. Nor had he stepped back into the car.
Mr D J Taylor
Mr Taylor also gave evidence at the original trial, Exhibit 30, and supplementary evidence before me. He described seeing the car coming out of the corner of his eye and its going behind the plaintiff. He thought the car was travelling faster than a brisk walk, as if in a hurry. He heard a bang and the plaintiff dropped his can of beer and went forward. Mr Taylor put his right arm out, preventing the plaintiff from falling. Later, the plaintiff, upset, and after some conversation, kicked the car door. He was unable to comment on the question whether the plaintiff was struck by the car mirror.
Ms D L Pontifex
The plaintiff called evidence from his former de facto wife of 15 years, Ms Pontifex, who also gave evidence at the original trial, Exhibit 32.
She described the plaintiff, prior to the accident, as always working and very conscious of providing for their children. In 1997, whilst he was working in the north, he phoned to say he had jarred his back when a forklift he was driving went down a pothole. He continued working without seeking treatment, to her knowledge. He returned at Perth for a period around Christmas and did maintenance and construction work on their property.
She was near him at the time of the racecourse accident.
She described the event simply as the plaintiff being pushed forward. She was embarrassed at his aggressive response. The following day, he was complaining of being very sore in the back and neck. He saw a doctor on Monday. Although he continued to work, he continued constantly to complain of a sore neck and lower back. He did "absolutely nothing" around their property and ceased helping with the children. His drinking of alcohol increased and became a big problem in the relationship. He was intolerant and aggressive. She associated the relationship breakdown with excessive alcohol consumption "which seemed to flow on or did flow on from the accident".
Cross‑examined, she agreed that the defendant driver of the vehicle in the racecourse accident had not seemed aware that there had been a collision. The plaintiff was struck on the lower left hand side of his body and took a heavy fall forward before others grabbed him. Before the accident, he had been working, not seeing doctors or complaining and not drinking. After the accident, his whole life "went downhill". He put on a lot of weight after the accident as his use of alcohol increased and he could not do physical work.
Cross‑examined before me, she agreed that on occasions before the accident, the plaintiff had drunk heavily but not every day or regularly. After the accident and the time of their separation, his weight increased by about 30 kilograms.
The defendant
Mr C Liveris, now 75, is a part‑time clerk. At the original trial, he gave evidence, Exhibit 43, describing the event:
"... Well, you can't go very fast. You're actually - you could say you were crawling along.
Did you park the car by the bookies' stand?---I parked the car by the bookies' stand, yes.
What happened next?---Before I could get out of the car there was a big man standing behind me and he looked at me and he said, 'You old cunt.' Then he started kicking the car.
...
Firstly, did you know why - - -?--- - - I was scared and I probably said, 'I'm sorry.' I probably said, 'I'm sorry.'
Did you know what he was talking about?---Not, not really, you know. There was a slight flick as I drove past, you know, as though somebody had stepped back, might have stepped back onto the car.
Right. So why did you say, 'I'm sorry,' or words to that effect?‑‑‑Well, he was there. He looked pretty menacing at the side of the car.
After this person kicked the car - how many times did he kick the door?---At least twice.
Then what happened?---I think he walked back - I think he still had his drink in his hand and he walked back to the bar."
Cross‑examined, he said the car had not shuddered. There was a "slight" or "faint noise" as if someone "had stepped back and collected my rear‑vision mirror". He had not sworn back at the plaintiff later.
Mr K Willison
The owner of the car driven by Mr Liveris was Mr Willison. His evidence at the original trial is Exhibit 44. He saw the plaintiff kick his car and then confronted the plaintiff, who abused him. Before me, he confirmed that no damage had been done to his rear vision mirror. However, damage was done to the door of his car where the plaintiff kicked it.
Ms M Flude
Ms Marcia Flude was, at trial, the plaintiff's fiancée, having known him for 2‑1/2 years since late 2000. When they first met, he walked quickly, explaining, "I have to walk fast because my back hurts if I walk slow." She added, "He can't put his arm around me, ..., because it affects his back. He can't hold me." It also affects their intimate personal life. At first, he had seemed something of a "lost soul":
"From the time you first met him to now, in terms of being a lost soul how would you describe him now?---A changed person now. Absolutely.
Changed in what way?---He has a reason for living now. He doesn't drink as much - he was drinking heavily when I met him, strong beer - now he drinks midstrength beer. He doesn't drink every day and, yes, he's a brand new person for sure.
...
Do you ever see him doing things around the racecourse?---Yes, he goes out on the track and fiddles with the sprinklers. He can't do that much.
...
... When you are with someone for that length of time you know exact what they can do and can't do, and sometimes he becomes quite frustrated because he can't physically do things."
He cooks but does not move furniture. During working bees at the racecourse, he watches others. His back movement is still restricted but his neck is not. Bending causes pain.
Mr T C Rolfe
Mr Rolfe is the chairman of the Toodyay Race Club. He had suggested to the committee that it appoint the plaintiff as an unpaid caretaker living on the course premises. The plaintiff took that position up in early January 2002:
"... He was to live on the premises, do tasks around the area including supervision and operation of the watering system, shifting sprinklers, general maintenance, in return for free rent and electricity.
What is the physical state of the premises at the moment?‑‑‑They have improved considerably. ... and it's largely due to Ray's dedication to the position.
What about the buildings and rails and things like that?‑‑‑Initially that was an expectation of ours that Ray do those sort of things but I did notice that he was reluctant to get involved in heavy physical activity. I didn't know why at the time.
When did you have occasion to notice that?---The first time I noticed it was when we were setting the sprinklers out on a particular day ... - I noticed that he ... appeared to be restricted in his movements. He wasn't - like I would bend over and pick a sprinkler up and shift it and Ray sort of half squatted and moved like an older person would move; appeared to be restricted. ...
After the first time that you noticed that restriction with Mr Baines, have you had occasion to observe him at busy bees since then?---I accepted the fact that he appeared reluctant to do anything physical and I just bowled along and did it, Peter and I."
The position has not changed, although the plaintiff was keen to get things done and had also been a very successful fundraiser and in supervising offenders doing community work. Some two months after moving in, the plaintiff had seemed depressed. The plaintiff had continued in the position also because of his role in providing security for the course and in watering the track, but had not been able to do the maintenance work expected.
Cross‑examined, he agreed that in 2001, he had found the plaintiff jovial and outgoing. On occasions, the plaintiff had moved like an older person.
Mr R G Larkin
The regional manager for Boral Formwork and Scaffolding, Mr Larkin, gave evidence at the original trial, Exhibit 45, and before me. He confirmed that the plaintiff had provided sub‑contract truck driving services at a flat rate for the firm for about 15 years until 2000.
During 2000, the firm was trying to cut costs as a result of a downturn in business. Mr L Broach and he met the plaintiff:
"Can you tell us what he said?---Yes. He called Ray in ... because what Les had found was that Ray was being paid whether his truck was in use or not, so in other words, Ray or the person he had driving for his truck would work in our yard and get paid the flat rate and Les pointed out to Ray that that practice had to cease but Ray could continue carting our equipment.
At that stage approximately how much time was being spent by the truck on the road and how much time was being spent by the operator of the truck in the yard?---I would estimate probably 50 per cent of the time would have been in the yard.
And did Mr Broach suggest any other alterations to the work practices and the costs of the work practice?---Yes. He suggested to Ray that the flat rate of $32 an hour for the truck was on the low side and he suggested to Ray that he go away and resubmit a new hourly rate.
Was anything said about Mr Baines having access to the site?‑‑‑No, he was able to continue doing our cartage, whether it was Ray driving or he had another guy at the time, so, no, access for cartage was not a problem. Access for working in the yard was going to be denied.
What was Mr Baines' attitude to that?---Ray felt that he was dealt with unfairly and indicated that and basically said, 'Well, you know, I'm being sacked or my job is being taken away from me,' and then left.
And was that the last time he did any work for Boral?---I believe it is, yes. His truck was in the yard that day."
Giving evidence, he confirmed the oral basis of the plaintiff's arrangement with the company and the flat rate nature of his remuneration.
Mr A J Andersen
Mr Andersen, a director of Perth Construction Hire, gave evidence at the original trial, Exhibit 27. He had known the plaintiff through business for many years and, as contracts manager for Boral in 1996 to 1997, had asked the plaintiff to work at Port Hedland during construction of the HBI plant. He regarded the plaintiff as reliable and honest. The plaintiff had been injured in a forklift accident in early‑1997 and moved to lighter duties before returning to Perth.
Subsequently, Mr Andersen moved his employment. He heard of the accident and of the plaintiff's back and relationship problems.
Medical evidence
Drs BF and F Meyerkort
Dr B Meyerkort and his wife, Dr F Meyerkort, are general practitioners and the plaintiff has been their patient both before and since the accident. In a report dated 20 July 2001, Dr F Meyerkort reported the plaintiff's pre‑1998 attendances at their practice as follows:
"On 16th September 1996 while an employee of Boral Building services, he stepped out of a truck, onto the edge of a pot hole, resulting in a twisting of left knee and left low back strain.
He was prescribed Feldene, unfit for work, physiotherapy treatment, which on the 23rd September 1996 was changed to chiropractic treatment, on his request. On 23rd September 1996 he was partially unfit for work.
On the 4th October 1996, he had a full range of low back movement. His left knee was still tender over the insertion of the medial collateral ligament. He was declared fit for work.
On the 23rd December 1996, there was mild tenderness over the left medial aspect of knee, with full range of movement of the back and knee.
He was not seen for any back injury in 1997."
In 1995, liver function tests showed a slight abnormality to which alcohol and weight may have contributed.
There was no consultation involving the plaintiff following the back injury accident in February 1997. He was seen on 20 November 1997, but there was no mention of a back problem.
At the original trial, Dr F Meyerkort gave evidence, Exhibit 25. Her reports are Exhibit 5. Before me, Dr B Meyerkort gave evidence. His report and certificate are Exhibit 4.
The plaintiff first saw him on 23 February 1998 and was "found to have a muscle strain injury of the neck together with a bruised and strained left lower back" attributed as the result of the racecourse accident two days before. They saw the plaintiff on some ten or so occasions until April 2000.
On 1 July 1998, Dr Meyerkort reported that:
"When next examined on the 3rd March 1998, he complained of soreness over the left iliac crest and mid‑lumbar region. Examination showed a good range of back movement, with flexion to mid‑shin and good range of extension. Neck movements were full, but he complained of stiffness.
He has been seen on the 25th March 1998, 28th April 1998, 10th June 1998 and 19th June 1998.
On the 10th June 1998 he felt his neck had improved. But he was concerned about low back and middle back pain which is worse when he commences heavy manual work.
On examination there was a good range of back flexion.
1.Mr Baines appears to have sustained soft tissue injury to the left loin and iliac crest muscles and neck strain injury.
2.Neck problem has settled.
He experiences recurrence of back pain when he undertakes heavy manual work.
3.Mr Baines was totally unfit for his truck driving and heavy manual work for one week.
4.Due to the self‑employed situation he is in, Ray Baines persists at work, but he finds he is partially unfit for the heavy lifting, bending tasks, i.e. three months.
5&6.Ray Baines has a past history of right low back injury in approx - 1983. He states that in 1997 he sustained a compression fracture of T11 or T12. I do not consider he will have significant permanent disability from his recent accident.
I believe the recent accident would have aggravated the injury of 1997.
7.I do not feel this claim is capable of finalisation.
8.The patient was referred for physiotherapy.
(a)He was referred for pain relieving mobilising therapy of the lumbar thoracic cervical spine.
He was referred for a weight loss and posture improving exercise regime.
(b)He has been attending physiotherapy for the past four months, but the results have now plateaued with regard to lumbar spine.
He has improved with regard to cervical and thoracic spine.
(c)On the 19th June 1998 the patient was most recently seen.
Physiotherapy is not proving beneficial so further investigations were arranged e.g. CT and blood tests which were unhelpful. He was strongly advised to lose weight and exercise."
The following report, dated 15 October 1998, added:
"Since my last report dated 1st July 1998, Mr Baines has been seen on 21st July 1998 only.
1.On 21/7/98, he demonstrated much freer back movements, with flexion to below his knees and a good degree of painfree back extension. He still experienced some intermittent pain over the left iliac crest, but was on no medications.
He mentioned the possibility of a new job, in Bunbury.
2.The iliac crest discomfort is related to the accident of 23rd Feb 1998.
3.The incapacity that Ray Baines experienced from 23rd Feb to 21st July 1998 was related to the accident of 23rd Feb 1998.
4.While the claimant has mentioned to us a past history of a lumbar injury in 1997, he has never been consulted for this before Feb 98. I understand he was self employed as a labourer and a truck driver and he continued with these tasks till last seen on 21st July 1998."
On 20 July 2001, Dr Meyerkort added the following chronology:
"21/07/98Back movements were much freer.
16/09/98Still complaining of ilio‑costal region pain. Attending weekly physiotherapy, with less pain and improved range of movement.
Still unable to lift heavy objects.
03/03/99Twelve months post incident at Ascot Racecourse. Still experiences low back pain, worse on the left on heavy lifting and truck driving, all of which has worsened since the incident of Ascot Racecourse. He has received general and repeated advice to keep physically active and undertake weight reduction.
Neck symptoms have settled, but has left lumbar pain.
He requested referral for physiotherapy, which provides some relief.
06/04/00Recent aggravation of back pain and diminished range of back movements. He is unable to continue with physically demanding duties and a referral to CRS Australia arranged. He has not been seen since."
On 6 April 2000, Dr Meyerkort issued a certificate stating, inter alia, that the plaintiff had had a left iliocostal muscle strain injury in 1996, shown as resolved on 4 October 1996. A CT scan had been taken of the lumbar spine. The plaintiff was certified to be fit for full‑time, but restricted, duties, avoiding heavy lifting, recurrent back bending, and prolonged sitting and standing. Dr Meyerkort suggested a CRS rehabilitation assessment for alternative work duties.
Dr B Meyerkort, giving oral evidence, added that although not then documented, there was in fact a strain injury in the L5/S1 and L4/5 areas as well. He had not seen the plaintiff since 6 April 2000.
Cross‑examined, he agreed that kicking a car could cause jarring and that that jarring can lead to muscle strain. The plaintiff was constantly overweight.
Dr Peter Watson
Dr Watson is a neurosurgeon who saw the plaintiff on 4 September 1998 and on 29 June 2001 for preparation of medico‑legal reports. His reports are Exhibit 6. He gave evidence at the original trial, Exhibit 24. Each was admitted before me by consent.
On 4 September 1998, he reported:
"Mr Baines provided me with the history that he has had two previous thoracolumbar injuries. The first of these occurred on 12th February 1997 when he was working in Port Hedland driving a forklift truck. When he was operating the forklift truck the front wheels went down into a hollow and as he was lifting a heavy weight on the forks the forklift tilted forwards and then crashed backwards resulting in severe jarring to his mid thoracic spine and to a lesser extent cervical spine. He was reviewed by Dr Evans at the Port Hedland Hospital with severe muscle spasms around the mid torso and severe central thoracic pain. ... He was rested and placed on light duties between February and July 1997 where he largely carried out office work. He was treated with massage and in July 1997 returned to work for Boral in Perth where he worked largely as a truck driver.
On 21st February 1998 he was hit from behind and the side at a race track whilst standing at a bar. ... and knocked over into the arms of two men standing near by. This resulted in lower left sided lumbar pain which has radiated up the paraspinal muscle region and into the shoulder and lateral cervical spine region on the right. He did not take any time off work for the second injury and has continued to work for Boral as above. His previous history of injuries to the spine include a motor bike accident in the early 1980's when he was a pillion passenger knocked off a bike and sustained a lower back injury. ... he had little ongoing symptoms from the 1980 injury onward.
Examination today of Mr Baines revealed a tall, overweight gentleman. He has full range of cervical spine movement. Neurological examination of the upper limbs is normal. There is no evidence of wasting. Tone, power, sensation and reflexes are all intact. Examination of the thoracic spine reveals no kyphotic deformity nor any scoliotic deformity. There is no tenderness of the thoracic spine today. The lumbar spine examination revealed a full range of forward flexion to touch toes. Again neurological examination of the lower limbs is normal. There is no evidence of wasting. Tone, power, sensation and reflexes are intact and there is no evidence of nerve root impingement of the lower limbs.
Mr Baines brought with him x‑rays of the cervical spine and lumbar spine. These show no significant abnormalities apart from some very minor degenerative changes in the lower cervical spine. A CT scan of the lumbosacral spine was performed demonstrating small posterior midline bulges of the L3/4 and L4/5 discs but no evidence of nerve root impingement.
I therefore believe that Mr Baines has sustained ... a soft tissue and ligamentous injury of the cervical and lumbar spine as a result of the injury described on 21st February 1998.
Mr Baines certainly has difficulty in working as a forklift driver, currently he works as a truck driver working 40 hours per week and works in the yard and on a forklift occasionally for about 10 hours per week. He has difficulty with symptoms in the thoracolumbar spine and the right side of the cervical spine at the end of the working day. It is difficult to decide on the extent to which the two injuries described in February 1997 and February 1998 have separately affected his ability to work. Clearly the two in combination currently cause symptoms and difficulty in his normal working hours.
Mr Baines would appear to have approximately 10% (TEN PERCENT) disability of the total spine as a result of these two injuries.
Ongoing treatment involves weight loss, back and cervical spine strengthening exercises and a swimming program. I do not believe any surgery is required.
The prognosis with a conservative treatment program outlined above is of a gradual recovery in his symptoms rather than worsening. I believe that he will be able to continue on working as a truck driver but not necessarily as a forklift driver if a conservative program is undertaken. I believe in the longer term there would be sufficient improvement for him to work a normal 40 hour week as a truck driver."
On 29 June 2001, he reported:
"Today, in June 2001 Mr. Baines reports firstly an improvement in his cervical spine and thoracic spinal pain. His cervical spine pain has been helped by acupuncture. His thoracic spinal pain has just improved over time. His lower lumbar spine pain now becomes his main concern. It is present in the lower lumbar spine in the paraspinal muscles adjacent to L4/5 and L5/S1, into the left sacroiliac joint and into the posterior aspect of the left leg, buttock, upper hamstring and groin.
Mr Baines ceased working as a truck driver on the 14th February 2000. He said this was due to a worsening of symptoms in the lower lumbar spine. Since ceasing work, now over a year ago he feels that there has been improvement in his lumbar spinal pain. Therefore overall there has been an improvement in symptoms of the cervical and thoracic spine and a relative improvement in the lumbar spinal pain although this is now his most troublesome ongoing symptom.
On examination of Mr Baines he is able to flex at the lumbar spine to touch mid shin. Straight leg raising is not impaired and the neurological examination of his lower limbs remains normal. There is no evidence of any nerve root impingement on examination.
Mr Baines has had plain x‑rays of the thoracic and lumbar spine since I have seen him in 1998 and the studies taken in 1999 demonstrate no evidence of any thoracic compression fracture. The spinal studies of the lumbar spine show no bony injury and show only minor degenerative change at the lower lumbar vertebrae.
Mr Baines currently denies that he is capable of returning to work as a truck driver. He feels that his lumbar spine symptoms were worsening when he continued driving. When I asked him regarding the possibility for work in the future or plans, he said that he may well help in the running of a friend's shop and considered that he was capable of doing sedentary work fulltime.
I believe it is probable that Mr Baines would be restricted to lesser hours of work if he had to return to work as a truckdriver which is probably not practicable but I do believe that he is capable of undertaking sedentary work and could probably do so in fulltime hours, i.e. 40 hours per week. Mr Baines stated to me today that he was very keen to return to some form of sedentary work.
With regard to ongoing treatment and rehabilitation I would advise an ongoing conservative programme of exercises and strengthening, emphasising swimming and intermittent reviews by his general practitioner. ...
Mr Baines' overall prognosis should be of a gradual improvement in all symptoms including the lumbar spine. I suspect that if he attempted to return to work which required a lot of driving or heavy lifting that his lumbar spinal symptoms would deteriorate causing him loss of work time and eventually an inability to work. He would be much better advised to undertake a sedentary occupation which could include shop assistant, light storesman, hardware sales, etc."
Giving evidence in July 2001, Mr Watson confirmed that, in his view, the accident contributed to some extent to cervical spine, and more significantly to lower lumbar spinal, injury. The February 1997 injury, on the history he was given, caused thoracic pain which would be confirmed by a general practitioner's findings of tenderness at T6/L1. There was no complaint of thoracic pain in June 2000. The ongoing lower lumbar spinal problems render the plaintiff liable to difficulties if he undertakes driving and lifting. The pain was consistent with the history and the only cause known to Mr Watson was the accident injury. Such soft tissue ligamentous injury does not necessarily improve and, in the plaintiff's case, symptoms had worsened. Whilst there were no objective signs of accident caused injury, there were lower and middle lumbar spinal disc problems.
Mr Peter Fazey
Mr Fazey, a manipulative physiotherapist, treated the plaintiff from 26 March 1998 weekly until February 1999, and again on 7 April 2000. His reports are Exhibit 3. The plaintiff had "a previous history of back injury in 1996 whilst employed by Boral, for which he also received treatment" from the same physiotherapy clinic. In March 1998, he presented with a one‑month's history of right neck pain and low back pain. Symptoms were constant and disturbed his sleep with intermittent muscle spasms:
"On initial examination he had pain on extension of his lumbar spine at 25 degrees and in his cervical spine at the end range of rotation, flexion and at half range right lateral flexion. There was tenderness and stiffness on palpation of all areas of his spine particularly around C7/T1 and T3 to T10 and all levels of his lumbar spine.
...
... His symptoms were somewhat improved overall though remained variable.
... On April 7th 2000 ... he reported that his right cervical pain and left lumbar pain had continued ... and had in fact worsened since February 14th 2000 and as a result he had not worked since. He had been continuing with a programme of swimming and a light gym routine.
On examination he then exhibited restricted lumbar extension at 25 degrees and lateral flexion at three quarter range bilaterally. There was marked tenderness on palpation of L4/5 on the left and in his cervical spine at C7 and T1 on the right."
Mr Fazey concluded:
"... his signs and symptoms have remained consistent throughout and at this stage it is my opinion that he is likely to have some degree of residual disability."
He recalled that until February 1999, the plaintiff was treated early in the mornings, parking his truck in the driveway. The plaintiff had reported being able to maintain function and continue employment with variable, but consistent, symptoms.
Mr S Lanyi
Mr Lanyi was, in 2000, a rehabilitation consultant with CRS Australia. He saw the plaintiff first in April 2000. His reports are Exhibit 12. He gave evidence at the original trial, Exhibit 31. The plaintiff was referred by his solicitors for rehabilitation assessment. The plaintiff underwent a number of programs and set up his second‑hand goods business in Toodyay.
Psychiatric evidence
Dr Zelko Mustac
Dr Mustac, a consultant psychiatrist, saw the plaintiff on 20 October 2000 and 18 June 2001 before giving evidence at the original hearing. His reports are Exhibit 37.
In October 2000, Dr Mustac assessed the plaintiff as being involved in alcohol and marijuana abuse, complaining of back pain and suffering moderate to severe psychosocial stressors related to these issues and the separation from his wife and his financial problems. Because of these factors, he was unlikely to be able to work:
"There appears to have been a decline in Mr Baines functioning since his wife has left him. He appears to have attempted to cope with the situation by drinking an excessive amount of alcohol and using Marijuana. Not surprisingly he has become increasingly amotivated.
When I asked him, he acknowledged that at the present time he has no desire to reduce either his alcohol or cannabis consumption.
The only psychiatric treatment that he is receiving is prescriptions for Aropax from his GP.
It is very difficult to tell what, if any, underlying psychiatric illness is present in view of his alcohol and cannabis consumption."
In June 2001, he reported a considerable improvement in the plaintiff's mental attitude, although he was still drinking very large quantities of alcohol, complaining of back pain, financial problems and problems with his children.
Giving evidence at trial, he confirmed that the plaintiff had reported again being sexually interested and in again reading. In October 2000, the plaintiff had been suffering depressive symptoms related to his substance abuse, although Dr Mustac found the heavy alcohol use pre‑dated the accident and occurred while the plaintiff carried out work, family and associated obligations. It had, however, increased after the accident and again after the marital breakdown. There were various indicators of anti‑social behaviour traits and attitudes.
More recently, the plaintiff had improved in attitude, was less depressed and using less alcohol.
He saw the plaintiff again on 27 June 2003. An oral tape of that interview is Exhibit 41. He reported on 30 June before giving evidence before me. The plaintiff reported being in better mood. Although still suffering left sided low back pain, he had "learned to live with it". He had become friendly with Ms Flude, looking for suitable employment, enjoyed living at the racecourse, had reduced his alcohol intake and socialised much more. He was cheerful and not pessimistic.
Findings
Liability for the accident is admitted. At the time of the accident, the plaintiff was 38 years of age. He had been a self‑employed truck driver for about 15 years. During that time, he had suffered back injury in February 1997. After the accident, radiological evidence was found of a degenerative spinal condition at the L5/S1 level. He worked as a truck driver for two years after the accident.
These matters suggest possible bases for the plaintiff suffering ongoing low back pain. He does not say himself that he had made complete recovery from the earlier injury, although he does say that after doing light duties for some time, he made a good recovery.
The facts of the accident do not suggest major trauma. Whilst there was no doubt a blow to the plaintiff from the passing vehicle, no one has suggested other than soft tissue injury. The plaintiff, whilst thrown forward, was restrained by others and immediately walked to where the car involved had stopped and kicked the side door.
There were, no doubt, some pain symptoms which resulted from the accident. However, the plaintiff continued to work as a truck driver, performing heavy duties between the time of the accident and February 2000.
The plaintiff suffered some neck pain which, he concedes, is recovered, soft tissue injury to the lower back and what his counsel describes as "an exacerbation/aggravation of the mid‑back pain which had been improving throughout 1997 and largely resolved by late 1997" (see written submissions).
In my view, the probable explanation of the plaintiff's symptoms is a combination of a degenerative and previously injured spine in a man approaching middle age, a relatively minor injury caused by the accident and ongoing heavy work.
These factors all threw stress on the plaintiff's spine which was further stressed by his being considerably and increasingly overweight through a combination of increasing alcohol consumption and decreasing physical activity, precisely the reverse of what was called for by his medical advisers. No doubt these matters all fed into and exacerbated his domestic relationship problems and financial worries.
He was physically limited and I accept the evidence that he ceased to do much on the property he lived on or with his children, and regularly complained of and exhibited signs of low back pain. He regularly attended physiotherapy in the morning and performed truck driving duties for long hours. No doubt, in part, he exhibited and recognised muscle fatigue after work.
I accept, as I think does the defendant, that the plaintiff has suffered low back symptoms since the accident and, although to a lesser extent, still does. That, however, is different from the proposition that those symptoms have been the causal consequence of the accident.
The issue becomes one of causation. Causation is notoriously a difficult concept, which even Sir Owen Dixon found concerning: see (2003) 77 ALJ 882. The law, however, attempts to answer the problems it is forced to confront.
In March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 512, Mason CJ dealt with the effect of statutory provisions allowing apportionment of responsibility for tortious injuries on the "last opportunity" rule. He continued, at 514 ‑ 516:
"So the end result of the apportionment legislation was to abolish not only the defence of contributory negligence but also the last opportunity rule.
Although the rule did not in reality go to the issue of causal connexion, its operation was often described in the language of causation. Hence the abolition of the rule enabled the courts to apportion liability as between a plaintiff whose contributory negligence and a defendant whose negligence both were concurrent causes of the plaintiff's injuries, in the same way that the courts can now apportion liability between concurrent tortfeasors whose negligence materially contributes to a plaintiff's injuries. In this respect some of the obstacles which precluded the adoption of a legal approach to causation similar to that taken by philosophy and science have disappeared. But, because legal questions of causation are asked and answered with a view to allocating legal responsibility, very often on the basis of fault, an identity of approach is not possible.
Nonetheless, the law's recognition that concurrent or successive tortious acts may each amount to a cause of the injuries sustained by a plaintiff is reflected in the proposition that it is for the plaintiff to establish that his or her injuries are 'caused or materially contributed to' by the defendant's wrongful conduct: ... Generally speaking, that causal connexion is established if it appears that the plaintiff would not have sustained his or her injuries had the defendant not been negligent: ... But, as the decision in that case illustrates, it is often extremely difficult to demonstrate what would have happened in the absence of the defendant's negligent conduct.
Causation as a question of fact
The common law tradition is that what was the cause of a particular occurrence is a question of fact which 'must be determined by applying common sense to the facts of each particular case', in the words of Lord Reid: Stapley v. Gypsum Mines Ltd [1953] AC 663 at 681. That proposition is supported by a long line of authority in the United Kingdom: ... It is supported also by this Court's decision in Fitzgerald v. Penn (1954) 91 CLR 268.
It is beyond question that in many situations the question whether Y is a consequence of X is a question of fact. And, prior to the introduction of the legislation providing for apportionment of liability, the need to identify what was the 'effective cause' of the relevant damage reinforced the notion that a question of causation was one of fact and, as such, to be resolved by the application of common sense.
Commentators subdivide the issue of causation in a given case into two questions: the question of causation in fact - to be determined by the application of the 'but for' test - and the further question whether a defendant is in law responsible for damage which his or her negligence has played some part in producing: see, e.g., Fleming, Law of Torts, 7th ed. (1987), pp. 172‑173; Hart and Honoré, Causation in the Law, 2nd ed. (1985), p. 110. It is said that, in determining this second question, considerations of policy have a prominent part to play, as do accepted value judgments: see Fleming, p. 173. However, this approach to the issue of causation (a) places rather too much weight on the 'but for' test to the exclusion of the 'common sense' approach which the common law has always favoured; and (b) implies, or seems to imply, that value judgment has, or should have, no part to play in resolving causation as an issue of fact. As Dixon C.J., Fullagar and Kitto JJ. remarked in Fitzgerald v. Penn (1954) 91 CLR 278 'it is all ultimately a matter of common sense' and '[i]n truth the conception in question [i.e., causation] is not susceptible of reduction to a satisfactory formula'.
That said, the 'but for' test, applied as a negative criterion of causation, has an important role to play in the resolution of the question. So much was conceded by Dixon C.J., Fullagar and Kitto JJ. in Fitzgerald v. Penn.
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The commentators acknowledge that the 'but for' test must be applied subject to certain qualifications. ...
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... In truth, the application of the test proves to be either inadequate or troublesome in various situations in which there are multiple acts or events leading to the plaintiff's injury: ... The cases demonstrate the lesson of experience, namely, that the test, applied as an exclusive criterion of causation, yields unacceptable results and that the results which it yields must be tempered by the making of the value judgments and the infusion of policy considerations. ..."
In Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 418 ‑ 419, Gaudron J said:
"It is now settled that, in the context of tortious liability, questions of causation are questions of fact to be answered as a matter of common sense and experience: March v. Stramare (E & MH) Pty Ltd (1991), 171 CLR 506, esp. at p. 515, per Mason C.J.; at p. 522, per Deane J. See also p. 524, per Toohey J. And this is so whether the issue is, as is usually the case, whether some act caused: Imperial Chemical Industries of Australia & New Zealand Ltd v. Murphy (1973), 47 ALJR 122, or contributed: Stapley v. Gypsum Mines Ltd [1953] AC 663; Bonnington Castings Ltd v. Wardlaw [1956] AC 613; Sherman v. Nymboida Collieries Pty Ltd (1963), 109 CLR 580; and Duyvelshaff v. Cathcart & Ritchie Ltd (1973), 47 ALJR 410, to a loss or injury, or, as in this case, whether some other act (a novus actus interveniens) broke the chain of causation."
I am not satisfied by the plaintiff as a matter of "common sense" or on the "but for" test that the various consequences attributed to the accident were caused thereby. Of the medical evidence, I prefer that of Dr Rosenthal. It is not in dispute that the plaintiff suffered some symptoms following from, and caused by, the accident. But I cannot attribute the bulk of his symptoms thereto, nor attribute the onset of matters such as heavy alcohol abuse or relationship breakdown and depression thereto. In any event, the consequences of the accident are long passed. The causes of his ongoing symptoms lie elsewhere.
Obviously, there was a blow from the car driven by the defendant sufficient to enrage the plaintiff and from which he suffered some symptoms. It is not possible to make precise findings as to which part of his body was struck. On his own evidence, at trial, that is so. Various medical practitioners recorded different histories and, to a degree, drew different conclusions therefrom. It does not alter my conclusion, however, that the blow was modest and that I am not satisfied that the plaintiff's ongoing low back problems either flow directly therefrom or that it rendered symptomatic a previously asymptomatic condition which has continued to be symptomatic for the years since. The plaintiff has, I think, attributed to this event the results of a combination of pre‑accident and post‑accident circumstances and events. He is entitled only to be compensated for the consequences of the blow itself, however difficult that task of assessment is. He was, at the time, approaching middle age, overweight, engaged in heavy manual labour, evidently suffered degenerative spinal condition in the lumbar area and not entirely recovered from an apparently much more serious injury. He continued to do heavy work in those circumstances for a further two years.
Factors both previous and subsequent to the accident have played a part in the fact that more than five years after the accident, the plaintiff continues to suffer some lumbar symptoms.
Those symptoms themselves also must be put into perspective. His neck symptoms are recovered. More recently, his emotional state is considerably improved. He is, and probably will remain, an unsuitable candidate for heavy manual work, given his history, his continuing weight problem and the passage of time. However, he is, and always has been it seems, save for a short time after the accident, fit for full‑time work across a range of lighter, albeit unskilled or semi‑skilled, activities.
General damages
The claim for general damages is subject to the provisions of s 3A to s 3E of the Motor Vehicle (Third Party Insurance) Act 1943. By s 3C(2):
"The amount of damages to be awarded for non‑pecuniary loss is to be a proportion, determined according to the severity of the non‑pecuniary loss, of the maximum amount that may be awarded."
By s 3C(3), the maximum amount of damages that may be awarded for non‑pecuniary loss is now $249,000, but the maximum amount may be awarded only in a most extreme case.
It was made clear by the Full Court of the Supreme Court of Western Australia in Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997 that a 35‑year‑old plaintiff who had suffered a very severe left leg injury and been left with permanent disabilities including extensive scarring, deformity and a limp which badly affected his economic, domestic and social life fell within, but toward, the upper end of the lowest 25 per cent of a most extreme case.
In my view, the present plaintiff clearly falls much lower in the range than the plaintiff in that case.
One might also refer to the decision of the Full Court in Hendrie v Rusli [2000] WASCA 249 and of Groves DCJ in Nyssen v Foy [2000] WADC 210.
Doing the best I can, I place the plaintiff's case at not more than 7.5 per cent of a most extreme case. This percentage of the maximum amount that may be awarded of $249,000 equates to $18,675. The provisions of s 3C(5) of the Act requires an amount in this sum to be reduced by $12,500. I therefore award the plaintiff general damages in the sum of $6,175.
Economic loss
A book of the plaintiff's income tax returns and notices of assessment for the years ending 30 June 1996 to 30 June 2002 including associated returns and assessments for periods during which he operated through a private company and then in partnership with Ms Pontifex, is Exhibit 16. A summary schedule is Exhibit 16A. The figures before assessment of income tax are as follows:
Year ending 30 June Gross receipts Income
1996 $72,952 $44,538
1997 $89,390 $71,513
1998 $79,284 $44,196
1999 $88,975 $54,622
2000 $79,169 $30,056
In 2001, his taxable income was $11,458, nearly all in social security payments and, in 2002, the position was similar.
Economic loss - Past
On the basis of these figures, and given my findings as to the cause and of the probable longevity of the consequences of the accident, I am not able to award more than $10,000 loss under this head.
Economic loss - Future
There is no doubt that the plaintiff suffers low back pain which is ongoing, but the causes thereof do not now include the accident. This claim fails.
Special damages (treatment)
A book of such amounts is Exhibit 14. Mr Brooksby accepts the entries as correct in that the expenses were incurred but denies the defendant's responsibility to meet them. The items claimed total $10,999.40, of which Medicare has paid $1,866.75 and the Insurance Commission $1,946.45, leaving a balance paid by the plaintiff of $7,185.70. I allow $1,000.
Travelling expenses
A schedule of these expenses is Exhibit 15. At an agreed rate of $0.30 per kilometre for 10,190 kilometres, it totals $3,057. The defendant accepts the kilometres stated as having been travelled by the plaintiff, although denying liability therefore. I allow $500.
Future treatment expenses
This claim fails.
Conclusions
For the foregoing reasons, I assess damages as follows:
General damages $ 6,175
Past loss of earnings $10,000
Interest thereon $ NIL
Further loss of earning capacity $ NIL
Future treatment expenses $ NIL
Special damages and interest $ 1,000
Travelling expenses and interest $ 500
TOTAL $17,675
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