Baines v Liveris
[2001] WADC 232
•5 OCTOBER 2001
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: BAINES -v- LIVERIS [2001] WADC 232
CORAM: COMMISSIONER GREAVES
HEARD: 23-27JULY & 1 AUGUST 2001
DELIVERED : 5 OCTOBER 2001
FILE NO/S: CIV 2116 of 1999
BETWEEN: RAYMOND ANTHONY BAINES
Plaintiff
AND
CON LIVERIS
Defendant
Catchwords:
Damages - Assessment - Causation - Whether motor vehicle accident caused or materially contributed to plaintiff's back pain - Turns on its own facts
Legislation:
Nil
Result:
Claim dismissed
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):
Bonnington Castings Ltd v Wardlaw [1956] AC 613
Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303
Case(s) also cited:
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Bowen v Tutte (1990) A Tort Rep 81-043
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 (1977) A Tort Rep 81-432
Medlin v State Government Insurance Commission (1995) 182 CLR 1
The National Insurance Co of New Zealand v Espagne (1961) 105 CLR 569
Thiess Properties Pty Ltd v Page (1980) 31 ALR 430
Thomas v O'Shea (1989) A Tort Rep 80-251
Wright v Shire of Albany (1993) A Tort Rep 81-239
Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997
COMMISSIONER GREAVES:
Introduction
This is an assessment of damages in which the pleadings raise the issue of causation. Paragraphs 2, 3 and 4 of the re-amended statement of claim allege:
"2.On or about 21 February 1998 the plaintiff was a pedestrian standing in the vicinity of a Bar at the Ascot Racecourse, Belmont in the State of Western Australia when a Mitsubishi Magna GLX Sedan Registration No. 7NM.556 driven by the defendant struck the plaintiff in the back ('the accident').
3.The accident was caused by the negligence of the defendant. By letter dated 16 July 1998 to the plaintiff’s solicitor the defendant by his insurer the Insurance Commission of Western Australia admitted liability for the defendant’s negligence in causing the accident.
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 damages."
The defendant admits pars 2 and 3 of the statement of claim and denies the injuries loss and damage alleged in par 4 of the re-amended statement of claim. By pars 4 and 5 of his defence, the defendant alleges:
"4.Further, the defendant says that the incident pleaded in paragraph 2 of the statement of claim was of such a minor nature that the defendant was unaware that it had occurred and was unlikely to cause any or any significant injury to the plaintiff.
5.Further, the defendant says that the injuries loss and damage alleged in the statement of claim were not caused by the accident pleaded in paragraph 2 of the statement of claim, but were caused by another incident in which the plaintiff was involved on 12 February 1997."
The ordinary onus of proof rests upon the plaintiff to establish on the probabilities that the wrongful conduct of the defendant "caused or materially contributed to" his injuries: see the judgment of Lord Read in Bonnington Castings Ltd v Wardlaw [1956] AC 613 at 620, cited with approval by Mason J (as he then was) in Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303 at 310. To adopt the words of Mason J at 311 of the judgment, the issue of causation in this case lies outside the realm of common knowledge and experience and falls to be determined by reference to expert medical evidence. There is expert medical evidence in this case for and against the view that the blow to the plaintiff’s back on 21 February 1998 was one of several possible causes of his injuries. The not unusual issue which arises in this case is whether the Court should find on the balance of probabilities that that blow caused or materially contributed to the plaintiff's injuries. Whether the Court should reach that conclusion must be determined on the whole of the evidence, including that for the plaintiff who must prove the basic facts on which the medical opinion depends.
The evidence for the plaintiff in relation to causation
The plaintiff gave evidence that from the age of 17 he has been in engaged in truck driving and related work. He said in February of 1997 he was working at the hot briquette plant in South Hedland. He said:
"I helped on the forklift and driving across, there was a ditch. The front wheels went into the ditch and the fork was loaded so the back wheels lifted off the ground and came back down … I jarred my middle back."
The plaintiff said he saw a Dr Evans in Perth and continued:
"He had some x-rays … on my back in the middle of my back, and I was under the impression that he said I had a slight compression fracture on my back, but that's neither here nor there I suppose, but as it turned out he just said, 'take it easy for six to eight weeks and your back should become quite okay,' and that's what I did."
It appears from the x-ray report at p 1 of Exhibit 14 that the plaintiff's back was x-rayed at Port Hedland Hospital on 7 March 1997 on referral by Dr Evans, which states: "Thoracic spine no fracture is detected. No paravertebral soft tissue swelling is seen." The plaintiff continued:
"I was having problems with the middle of my back just below the shoulder blades, all the muscles all the way around there, the front of my chest, even up towards the top of my neck, if you like, and down towards my bum. I was just knotting up all over, so a friend of mine's girlfriend is a qualified masseuse and I saw her on three occasions and she was very helpful … that would have been early March. Probably the last time I would have had any massage would have been early in April, mid April maybe. … as the months went by certainly in the early part it was very painful but by not doing any heavy manual lifting or driving or whatever, I suppose it became a lot better. It wasn't, I would say, substantially better. It wasn't completely better by a long shot but when I came back to Perth, I was quite capable of returning to my usual duties which I did."
The plaintiff said he returned to Perth in July 1997 where he continued working for the same employer, Boral Building Services. He described the work as follows:
"I was driving trucks, yard work, driving forklifts, you know, going out to building sites, manually loading equipment. Not all the time. Sometimes there were cranes or forklifts on site but a large component of my work was physically related, you know, or involved. …I still had aches and pains in the middle of my back and – but on an overall basis, I was – I don't know – probably 95 per cent right."
On 21 February 1998, the plaintiff was at Ascot Racecourse and gave the following account of the events which gave rise to this action:
"I was standing on the edge of a concrete path that's probably 10 or 12 foot wide but I was still within the bar precinct. … while I was talking directly to Murray Dillon, the next thing a car – I was standing, looking at Murray and this car came from my left hand side. His front guard has knocked the back of my legs and it has arched my back backwards and I was hit by the – well, the retractable mirror and the actual mirror arm on the car. The force of that knocked me into two chaps that were standing to my right. One was Des Taylor and the other was Johnny Clift … it was a bloody hard knock because I don't particularly remember it but it knocked the can of beer I was drinking out of my hand to start with and it was hard enough too – I reckon it would have sent me from here to this chap in front of us if they hadn't have been there to catch me. About 10 feet, whatever."
The plaintiff repeated the solid non-retractable part of the mirror hit "the lower left hand part of my back." The plaintiff said later in the evening he was "starting to feel pretty bloody sore". He continued:
"The following day, I was – I was in pain. I'm not saying I was in agonising pain but I was, you know, bloody aching all over and so I didn't do much at all. I think I stayed in bed most of the day."
The plaintiff went to see Dr Bryan Meyerkort on the following Monday. The plaintiff gave evidence of his condition that day as follows:
"When I went in and saw him it was the lower part of my back on the left hand side, the middle part of my back which I had injured up north and the right hand side of my neck. There was bruising around the lower part of my back on the left hand side. You know, that's about all I can tell you."
On 1 July 1998, Dr Frances Meyerkort, the husband of Dr Bryan Meyerkort, reported to the defendant's insurers as follows:
"The above man was first seen on the 23rd February 1998. He stated he had been struck by a car after leaving the races.
He stated he was bruised and strained on the left iliac crest region and left lumbar area.
He was also stiff and complaining of a painful neck.
The examination findings were consistent with muscle bruising to the left iliac and lumbar regions and neck (trapezius muscle strain).
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.
3.He experiences recurrence of back pain when he undertakes heavy manual work.
4.Mr Baines was totally unfit for his truck driving and heavy manual work for one week.
5.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 plaintiff gave evidence that he continued physiotherapy until February or March 1999 on a weekly basis. He described his progress in the first half of 1998 as follows:
"There was a gradual improvement with the neck pain. I think the physio was working to a certain extent. Even the middle of my back wasn't feeling too bad, but my lower back was I think, the term I have heard before, plateaued out. You know, it was getting no better or no worse."
The plaintiff's reference to the term "plateaued" is a reference to par 8(b) of the report of 1 July 1998 from Dr Frances Meyerkort. The plaintiff gave evidence that in early September 1998 his solicitors referred him to the neurosurgeon, Mr Peter Watson. The plaintiff described his purpose in consulting Mr Watson:
"What I wanted was some treatment on my back to help rehabilitate it to a point. I was continuing to work and it was still causing me a hell of a lot of pain, especially lifting anything of a heavy nature, and the driving. You would be driving along and it would just be bounce along, up and down, in trucks. It was not much good for me, I don't think."
Mr Watson saw the plaintiff on 4 September 1998. In his report of that day, Mr Watson reviewed the history and continued:
"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 in tact. 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 limb.
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 thoracic injury with possibly a compression fracture although evidence for this is not available on x-ray, in an injury on 12 February 1997 and sustained a soft tissue and ligamentous injury of the cervical and lumbar spine as a result of the injury described on 21 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 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."
The plaintiff continued to work as a truck driver until 14 February 2000. He purchased a home gym for exercise and to help him lose weight. The plaintiff subsequently consulted Dr B Rogers. On 22 March 2000, Dr Rogers expressed the opinion that the events of 21 February 1998 exacerbated the plaintiff's previous injury on 12 February 1997. In his report of 6 June 2001, Dr Rogers expresses the opinion:
"In summary, Mr Baines is a man who has been injured on February 21, 1998 as a result of a severe impact to his left lumbar region. This should not be complicated with the worker's compensation injury, as the pain site is separate and the symptoms clearly relating to a lumbar impact."
In his evidence, the plaintiff went on to describe the condition of his lower back by February 2000:
"It was buggered. 14 February, I was struggling to get out of bed. This had been going on for months but by 14 February I was struggling to get out of bed and then go and work a 10 or 12 hour day. That day I couldn't get out of bed and that was when I had to call it a day."
The plaintiff explained why he kept working for two years after February 1998:
"It was really a matter of circumstances. I had a very good level of income. My expenditure on that income, you know, owning racehorses and a 10 acre property is not cheap to look after. My wife and kids and all the associated animals and that that were on the property took up a lot of money."
The plaintiff said that before February 1998 he "might have 4, 5, 6 mid‑strength beers" after work. He said that after February 1998 he started drinking full‑strength beer and he was drinking "a hell of a lot more", because "it just helped numb my back".
The plaintiff gave evidence that he reached a weight of 130 kilograms after February 1998. He explained how he reduced his weight to his current 95 kilograms:
"I have had to work very hard at that to naturally get rid of over 30 kilograms of excess weight. I might add that weight built up on me because, you know, I was just too bloody tired to do anything when I'd finished work. I'd go home and drinking beer and more of it and whatever else I might have been doing but I certainly wasn't doing any work around my property. I already said I wasn't doing anything with my family."
The plaintiff said that in June and July 2000 he had acupuncture which "eventually solved my neck problem."
By early 2000, the plaintiff said he was drinking some four blocks of beer and two bottles of spirits a week and continues to drink now some 2 ½ blocks of beer and one bottle of bourbon a week. His defacto relationship of 15 years came to an end and the plaintiff gave evidence that by the middle of 2000 he considered committing suicide. He was placed on antidepressant medication.
The plaintiff saw Dr Hamid Hamzah first on 18 April 2000. He reviewed the history and expressed the opinion that the plaintiff's recurrent back pain was most likely due to facetal joint inflammation. In his report of 29 June 2000, he continued:
"It would be difficult to say that his incapacity for work can be attributed to the injuries sustained by him in the last accident in February 1998 because I would have felt that he would have recovered by the time that I saw him this year. … prognosis for this case is guarded in that I would envisage that his back pain should have improved by now but for some reason or other, perhaps because of his obesity, he has not been able to exercise enough to decrease his pain."
In his subsequent report of 7 September 2000, Dr Hamzah expresses the opinion that "the cause of Mr Baines' ongoing symptoms is an ongoing facetal joint problem, probably initiated by the motor vehicle accident of the 21st February 1998". In his last report of 2 July 2001, Dr Hamzah observed:
"On examination on 28 June 2001, he stood straight. He appeared to have lost a lot of his paunch and a lot of weight. Examination of his lumbar spine did not reveal any areas of tenderness in his lower back. He was able to flex his lumbar spine so his fingertips reached mid shin. Extension, lateral flexion and rotation were within normal limits, though there was some pain at the extreme range of movement. He was able to straight leg raise both legs to 90 degrees without any difficulty and this was achieved in a seated position as well. There was no abnormality of power, reflexes or sensation in his lower limbs and no abnormality with dorsi or plantar flexion of his feet."
In evidence before me, Dr Hamzah repeated his opinions including the view that the plaintiff may have ongoing chronic facetal inflammation with repeated exacerbations and remissions. He expressed the obvious conclusion that in the absence of low back pain, the plaintiff could continue to work as a truck driver, but he was unable to be more exact about the cause of the plaintiff's low back pain.
The plaintiff saw Professor Andrew Harper on 10 August 2000. In his report of 14 August 2000, Professor Harper records the current symptoms of the plaintiff as low back pain, pain up the full length of his back, neck pain, insomnia and fatigue, irritability, anxiety and depression. Professor Harper's diagnosis was "chronic low back pain complicated by anxiety and depression and excessive alcohol intake." He concluded:
"Mr Baines is a 40 year old truck driver/labourer who was free of low back pain prior to a pedestrian motor vehicle accident on 21/2/98. He is incapacitated for his pre-accident work and has limited work capacity for alternative employment. He requires medical treatment and I feel it is too early to finalise his claim. I attribute his disability to the accident in question and I do note his previous back injury which was at a different location in the back and from which he had very nearly recovered by the time of the present injuries."
Professor Harper saw the plaintiff again on 22 June 2001. In his report of that day (Exhibit 18) Professor Harper records the following:
"PROGRESS
Mr Baines is now on a Sole Parent Pension, as his 14 year old son is now living with him. He has not returned to the work force. However he does some voluntary work in a second –hand shop in Toodyay for a friend. He is there on most days during the week for variable hours. He does general helping which involves some pushing of furniture. He avoids lifting and stooping.
Mr Baines said that there has been significant improvement mentally and he also reports improvement in physical symptoms.
He has had a variety of forms of treatment since I last saw him. He had acupuncture from Dr Soh in Wembley, who he said has made considerable improvements in his neck. Mr Baines has also had Bowen Therapy which he found relaxing. He had a facet joint injection performed by Dr Hamzah, which gave him one day's relief. He has been swimming and stretching and following a diet which has resulted in weight loss.
Current symptoms include:
1.Low back pain.
2.Right shoulder pain.
3.Neck pain.
4.Mood changes.
5.Left knee pain.
He continues to have a constant ache in his lower back with exacerbations. Exacerbations can be provoked by minimal bending, whereas on other occasions he is able to bend without consequence. Pain radiates to his left thigh. He feels he has adapted to his pain and he is now able to keep this symptom under control. Back pain is aggravated by prolonged sitting, prolonged standing, bending, squatting and driving. Jolting is also aggravating. He gets relief from rest, Panadeine Forte and alcohol.
He no longer gets pain across the full length of his back, but he does have some residual pain in the right shoulder. Regarding neck pain, he said that there has been very considerable improvement and that now it rarely bothers him. The neck is stiff in cold weather, but nowhere nearly as bad as before. His sleep has improved and he no longer experiences daytime fatigue. Concerning his mood, he reports considerable improvement saying that he has now accepted his financial losses which followed the accident. Now that his son is with him he has regained some confidence in the future. He experiences left knee pain. For many months he was experiencing marked pain in the medical aspect of the left knee. This has improved over the last two months.
PHYSICAL EXAMINATION
On examination he was in relatively good spirits and was not in any physical distress. His agility was reasonably good. His weight was 97.5kgs, which represents a loss of 12.5kgs over the last 10 months. His gait was normal. On examination of the lower back, I found power, reflexes and sensation to be normal. Straight leg raising was unrestricted at 900 bilaterally with a negative stretch test. He was unable to squat fully due to left knee pain. Hip flexion was within normal limits but both thighs tended to tremble on this manoeuvre. Range of back movement was within normal limits. In forward flexion his hands reached the mid shins. There was tenderness over spinous processes L4 and 5 and in the region of facet joints on the left from L4 – S1. Shoulder movements were normal. In the neck there was restricted movement in side flexion and rotation and particularly on rotation to the left. There was tenderness at the base of the neck on the right side. Examination of the arms revealed no abnormality. In the right knee, range of movement was normal. There was no deformity. The joint was stable but he experienced pain the medical aspect of the knee on stressing the medial ligament. There was tenderness over the medial joint margin. There appeared to be some wasting in both thighs."
Professor Harper advances no further opinion about the cause of the plaintiff's injuries in Exhibit 18. In the course of his evidence before me, Professor Harper expressed the opinion that vibrations through the truck to the lower back is a cause of chronic low back pain which may cause muscle tightness and spasm which radiates up the back to the neck. He distinguished and excluded nerve root involvement where pain is more likely to radiate downwards. He concluded:
"I think what one can say safely is that a man of this weight in this job is at risk of getting back pain. But there are thousands of men out there doing this sort of work and they're not disabled if they do have the symptoms you're describing. I think we get into a very grey zone when we sort of try and ascribe symptoms to people simply on the basis of what they are doing at their job. All I am comfortable in saying is that a man of this weight doing this work is definitely at risk of developing back pain, and that's it."
Professor Harper conceded that his diagnosis of chronic low back pain is a symptom but he insisted that in medicine chronic low back pain is treated very much as a diagnosis and continued:
"It is recognised that the diagnosis of it is based on the report from the patient and in eliciting such a symptom and using it to base a – to make a diagnosis, one has obviously got to look at all the causative factors and circumstances, which I have done in this particular case.
… medical diagnosis is in general based about between 80 to 90 per cent on the history. About 80 per cent of people with low back pain do not have positive physical findings, whether they be on x-ray findings or on physical examination, so when Mr Edibam says that he cannot identify objective findings, that simply puts this patient into the majority category of people with back pain. Namely about 80 per cent of people will be in this category where you don't find major physical findings and you usually will not have any positive radiographic evidence either. You are left with a diagnosis based on the history."
Professor Harper admitted the fact that the plaintiff continued working for two years after the accident makes one ask the question how severe was his injury. He considered the plaintiff's limited complaint of low back symptoms prior to February 1998 and continual complaint thereafter reinforced his diagnosis.
The evidence for the defendant in relation to causation
I turn now to the medical evidence led by the defendant about the cause of the plaintiff's injuries. At the request of the defendant's insurers, the plaintiff first saw Dr John Rosenthal on 8 February 1999 in his report of that day (Exhibit 26) Dr Rosenthal reviews the history up to 21 February 1998 and continues at p 2:
"The first onset of back complaint following this incident was soreness and stiffness the following day. Some bruising apparently came out and he consulted his GP. He was also complaining of some neck and mid-back stiffness.
Plain x-rays of the cervical spine dated 16 March 1998, show reduced movement on the functional views and some soft tissue calcification posterior to the spinous process of C6 which is obviously a long standing change.
Plain x-rays of the lumbar spine dated 16 March 1998, are normal.
A CT scan of the lumbar spine dated 24 June 1998, shows mild degenerative disc bulging and early facetal change at L5/S1.
There has not been any time off work and Mr Baines continues to work a 45 hour week. He said that he has back pain with heavy lifting and driving for long periods and he feels that his efficiency have been reduced. He does not take medication and he has been having physiotherapy over the past eleven months usually once per week.
On examination he has good upper and lower limb muscle tone but he is overweight with a protuberant abdomen. From the standing position he forward bends to reach the mid-tibia and recovers with normal rhythm, extension, lateral deviation and rotation are full. The slump test is mildly positive for lower back pain, he has a full straight leg raise with symmetrical lower limb reflexes and negative root tension testing. I did not see any muscle spasm or elicit any specific thoracolumbar tenderness. His range of cervical and shoulder girdle movement is normal."
At this stage, Dr Rosenthal concluded:
"The 1997 injury was obviously significant because it restricted him to lighter duties for 5 months. I do not think that the matter of a minor degree of compression at T11 or T12 is of great importance, but rather the forklift incident is more likely to have jarred his lumber facet joints and possibly cause some intervertebral disc compression causing mechanical pain and dysfunction. That situation has obviously improved somewhat. I cannot see that the incident at Ascot Racecourse has caused anything more than some minor soft tissue strain and I do not think that this incident has any current clinical relevance. There are no major discrepancies. There isn't much to find clinically. It does appear that his symptoms occur when his back is under load. It is my opinion that his ongoing subjective complaints relate to the 1997 incident with other contributory factors being natural degenerative change and excessive weight."
Dr Rosenthal remained of the same opinion in his reports of 26 June 2000 and 25 May 2001. In the latter report, Dr Rosenthal concluded:
"I remain of the view that the motor vehicle accident is unlikely to have any current clinical relevance. I would attribute any ongoing disability to a previous work injury and natural degenerative change. He has partially addressed the obesity/fitness problem although there is scope for considerable further improvement. The level of function apparent on clinical examination would indicate to me that Mr Baines has a retained capacity to work as a truck driver and subject to him not having to engage in repetitive lifting, he should be able to discharge his duties on a full-time basis. In any event I do not consider the motor vehicle incident has materially altered his work capability. There are other issues involved which include degenerative change, excessive weight and reduced fitness as well as psychosocial issues."
In evidence before me, Dr Rosenthal was asked to explain his opinion of the significance of the 1997 injury and he said:
"It's my understanding that he was driving the forklift that went down a depression or a trench and that he sustained a significant jarring injury to his back when that happened.
… It's been suggested that the injury that occurred then was sort of somehow confined to the T11-12 level where there's comment of possible previous compression injury but no radiological evidence for that having occurred, but if you look at the biomechanics of a forklift, presumably having some sort of a load, going down a depression – and I brought the model to help explain this situation – is that an axial force is going to be transmitted through the back up through the spine in an axial direction. So here's the back. When a forklift goes down the force is going to go straight up the spine and the first level – and the level, the sacrum which is the pelvis where the spine – this is going to be driven up into the lower lumbar discs so that the compressive injury from that type of thing is going to have more effect on the lower lumber discs than it is on the lower thoracic discs. The type of injury that you see with a thoracic disc is normally when there's, like, a rear end shunt, so in a motor vehicle or something like that. That's when a thoracic compression is more likely to occur, but with an axial compression coming up cordally or through the pelvis, this is going to jar his lower lumbar discs and his facet joints. I think that's precisely what occurred."
Dr Rosenthal was also of the opinion that the information available to him did not clearly identify the facet joints as a pain generator.
In cross‑examination, Dr Rosenthal accepted that there is not a direct correlation between the presence of degenerative change and pain. He said he did not believe the force with which the plaintiff was struck in this case was huge or likely to produce disability. He said he did not question the fact that the plaintiff has back pain but there was no objective marker of significant mechanical function on clinical examination. In his opinion the plaintiff had backache and he had had enough of having backache and he figured driving a truck was not good for his back.
The plaintiff saw the orthopaedic surgeon, Mr R C Edibam, on 3 October 2000, at the request of the defendant's solicitors. He reviewed the history and in his report of 3 October 2000 (Exhibit 28) he recorded his clinical examination of the plaintiff, his radiological examination and conclusion in this way:
"Clinical Examination
Clinical examination revealed a cervical spine which had normal posture. There was no muscle spasm or guarding. There was no localised tenderness over the cervical spine but he had some tenderness over the muscle fibres of the right trapezius, mainly the suprascapular fibres on the right side. Movements of the cervical spine were full.
Examination of his thoracic spine revealed a normal thoracic kyphus. On palpation there was no localised tenderness over his thoracic spine. Costo-vertebral movements and rotational movements were within the normal range.
Examination of the lumbar spine revealed a normal lumbar lordotic posture. On palpation he had tenderness over the spinous processes of L2, L3, L4, L5 and over the left sacro-iliac joint. Straight leg raise on both sides was 90º. Neurologically he was intact.
Radiological Examination
X-rays of his cervical spine undertaken on the 15th March 1998 showed no abnormality apart from a small flake of calcification in the ligament nuchae opposite the spinous process of C6 of no clinical significance.
X-rays of his lumbar spine, although reported normal show some abnormality in the pars interarticularis of L5 on the right hand side but otherwise the plain x-rays of his lumbar spine appeared quite normal.
A CT scan undertaken on the 24th June 1998 showed bulging discs at L4, L5 suggestive of early degenerative changes.
The L5/S1 disc appeared to be quite normal maintaining its normal contour. In addition at the L5/S1 level there was quite significant degenerative changes in the facet joints.
Further x-rays of his thoracic spine and lumbar spine undertaken on the 24th June 1999 showed no obvious abnormality either in the thoracic or the lumbar spine. No oblique views of the lumbar spine were undertaken at that stage.
Conclusion
Mr Baines has some degree of muscle aches and pains mainly localised to the suprascapular fibres of his right trapezius muscles, these symptoms being intermittent and probably do not relate to any injury to the cervical spine.
With reference to his thoracic spine, there was no evidence of any fractures as mentioned in Dr Myerkort's report following the injury at work in 1997, wherein he said he had compression fractures of T11 or T12. Unfortunately I was not able to confirm this on the radiological examinations. There was certainly no evidence of any past injuries to either T10, T11 or T12 thoracic vertebra.
As far as his lumbar spine was concerned, the only pathology I detected was that of osteoarthritis in the facet joints at the lumbo‑sacral junction, which are longstanding and would have been present prior to the incident on the 22nd February 1998.
I find it difficult to relate his ongoing symptomatology to that particular incident in February 1998."
Mr Edibam saw the plaintiff again on 1 June 2001 and again recorded his examination and conclusion in his report of that day:
"Clinical Examination
On clinical examination Mr Baines was somewhat overweight. His lumbar spinal posture was normal. On palpation he claimed he had some minor degree of tenderness at the lumbo‑sacral junction and over the left ileo lumbar ligament. He could flex forwards and bring his fingertips down to just above the ankles with minor discomfort. He could extend by 30º with little or minor discomfort. Lateral flexions were full, he could bring his fingertips down to the level of his knees on either side with little discomfort.
Straight leg raise on both sides was limited to 70º due to tight hamstring muscles. Neurologically he was intact.
Radiological Examination
Mr Baines has had no further radiological examinations carried out but I went through the x-rays again and I found oblique views of his lumbar spine undertaken on the 24th June 1999. These x-rays failed to show any abnormality in the pars interarticularis of the 5th lumbar vertebra. In other words, the abnormality seen in the previous x-rays carried out on the 15th March 1998 was probably an artifact. The only abnormality were minor degenerative changes in the disc and osteoarthritic changes in the facet joints at L5/S1, these were longstanding changes and did not occur as a result of any injury.
Conclusion
Mr Baines shows age related changes in his lumbar spine which may give rise to mild aches but there is no evidence of any underlying cause for the constant low back ache and pain which is disabling him and preventing him from returning to work. There may be other factors responsible for his ongoing symptomatology, other than any ongoing pathology in his lumbar spine."
In evidence before me, Mr Edibam said that he found it difficult to relate the plaintiff's ongoing symptomatology to the incident in February 1998, because the only abnormality he found was degenerative changes in the plaintiff's facet joints. He found no after‑effects of the injury or any residual quantum from the injury. Mr Edibam was referred to the opinion of Mr Watson that the plaintiff has difficulty with symptoms in the thoraco-lumbar spine and the right side of his cervical spine at the end of the working day. Mr Edibam suggested that the cause of such symptoms was most likely muscular pain and not related to the incident in February 1998. He said that because it occurs at the end of the day, he would have thought that it was 99.9 per cent related to the work activity.
Mr Edibam was referred to the evidence of Mr Harper that something like 80 to 90 per cent of people with back pain have no signs on radiological investigation. He expressed the opinion that there is no obvious cause for common back pain.
In cross‑examination, Mr Edibam expressed the opinion that his examination of the plaintiff revealed a normal spine. He repeated the view that neck pain and back pain can occur without any cause. He said the plaintiff told him that he had worked for two years and that the plaintiff had reached a point where he could not work. He said if you have a lot of pain after you have worked hard at the end of the day it has got to be muscular pain. He said that to conclude that the plaintiff has a soft tissue injury means nothing and is not a diagnosis, if you can't identify an injury to the soft tissue. He considered that orthopaedic surgeons and neurosurgeons are in a better position to assess the spine than the occupational physician.
Conclusions in relation to causation
The evidence of Professor Harper, Dr Rogers and Mr Watson is, in my opinion, capable of being understood as expert evidence that the blow which the plaintiff sustained to his lower back on 21 February 1998 was the cause of his continuing back pain. Equally, the evidence of Dr Rosenthal and Mr Edibam is capable of being understood that it was not the cause of the plaintiff's continuing back pain. In order to determine whether the plaintiff has discharged the onus upon him to establish on the balance of probabilities that the defendant caused or materially contributed to the occurrence of his back pain, the court should in this case consider whether there is evidence of events whose character and sequential order suggest a causal rather than a merely temporal connection between the accident on 21 February 1998 and the plaintiff's back pain: see the dissenting judgment of Stephen J in Tubemakers of Australia Ltd v Fernandez at 307. The court is entitled to have regard to such evidence, if it exists and is accepted, as confirmation of the plaintiff's expert evidence: per Mason J in the Tubemakers case at 312.
The principal evidence for the plaintiff of this nature is that of his former defacto wife, Ms Denise Pontifex. She confirmed the evidence of the plaintiff that he kept working after 21 February 1998. She said he complained of a sore neck and his lower back "too often. Everyday basically. Everyday all day." She said the plaintiff's drinking increased after February 1998 and it became a big problem in their relationship, which had previously been "a pretty good relationship". She said his drinking "seemed to flow on or did flow on from the accident."
In cross‑examination, she said the plaintiff began "drinking everyday, definitely after he had the accident. … I'd say pretty much straight away. It was a gradual process." Ms Pontifex said she did not hear the plaintiff complain too much in the mornings but certainly by the end of the day she was hearing a lot of complaints after February 1998. She continued:
"Before the accident he was still doing his work. He was not going to the doctor's. He was not complaining of anything and he certainly was not drinking in excess. After the accident his whole life basically went downhill – I mean his family life, his work, everything."
It is a fact that the relationship between Ms Pontifex and the plaintiff came to an end in March 2000 contemporaneously with his giving up work. It is equally a fact that the plaintiff continued to work full-time after his accident in February 1997 and in February 1998 this fact is in my opinion wholly inconsistent with his claim that the 1998 accident caused or materially contributed to his low back pain. I do not accept the evidence of the plaintiff that his low back pain began after February 1998. I reach this opinion notwithstanding the evidence of Ms Pontifex that the plaintiff began to complain regularly of low back pain after February 1998. There is, therefore, no evidence which should lead the court to find a causal rather than a merely temporal connection between the accident on 21 February 1998 and the plaintiff's back pain.
I accept the evidence of Dr Rosenthal that in 1997 the plaintiff sustained an injury to his lower lumbar discs. The evidence relating to the circumstances of the collision between the defendant's vehicle and the plaintiff leads me to the same conclusion as Dr Rosenthal that the force with which the plaintiff was struck was not likely to produce the disability which the plaintiff complains of.
I also accept the evidence of Mr Edibam that the cause of the plaintiff's symptoms was most likely muscular pain and not related to the 1998 accident. It follows I do not accept the evidence of Dr Rogers that the incident in February 1998 exacerbated the plaintiff's 1997 injury.
In addition, I find on the evidence that the nature of the plaintiff's work, his obesity and his excessive consumption of liquor suggest and establish an alternative explanation for the occurrence of low back pain not related to the 1998 accident. I am also of the opinion that the breakdown of the plaintiff's relationship with Ms Pontifex, which in my opinion the evidence does not establish is related to the 1998 accident, has also contributed to the plaintiff's low back pain.
Accordingly, the plaintiff has failed to discharge the onus upon him on the evidence in relation to the issue of causation and his claim must fail.
So far as it may be material, I should observe that in this case I prefer the evidence of Dr Rosenthal and Mr Edibam to that of Professor Harper and Mr Watson in that I accept that the plaintiff has at all material times since 21 February 1998 been fit to work as a truck driver, as long as he avoids heavy lifting, and remains so fit.
For these reasons, in my opinion, the plaintiff's claim should be dismissed.
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