Biddle v Green

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BIDDLE -v- GREEN [2006] WADC 102

CORAM: O'BRIEN DCJ

HEARD: 13-15 JUNE 2006

DELIVERED : 11 JULY 2006

FILE NO/S: CIV 785 of 2005

BETWEEN: JASON JAMES BIDDLE
Plaintiff
AND
JO-ANNE GREEN
Defendant

Catchwords:

Personal injuries - Causation of annular tear - Calculation of damages

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Damages awarded

Representation:

Counsel:

Plaintiff: Mr T H Offer
Defendant: Mr B C Sierakowski

Solicitors:

Plaintiff: Vertannes Georgiou
Defendant: Brian C Sierakowski

Case(s) referred to in judgment(s):

Kschammer v R W Piper & Sons Pty Ltd & Ors [2003] WASCA 298
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Southgate v Waterford (1990) 21 NSWLR 427
Stork ICM Australia Pty Ltd -v- Hill [2002] WASCA 132

Case(s) also cited:

Dyjak v Kelly, unreported; FCt SCt of WA; Library No 940269; 25 May 1994
Tran v Claydon [2003] WASCA 318

O'BRIEN DCJ: Jason James Biddle was 19 years old when he was involved in a motor vehicle accident.
Mr Biddle was driving a Holden Berlina near the intersection of Hannan and Atabara Streets in Kalgoorlie.
The defendant, Jo-Anne Green, was driving a 14 tonne truck which collided with the plaintiff's car. In effect, the truck "T-boned" the driver's side of the plaintiff's car ("the collision").
The damage was extensive. The right rear end of the Berlina was smashed in. The repairs cost around $12,000.
The defendant admitted negligence. Insurance Commission of Western Australia ("ICWA") litigated the matter.
The plaintiff claims as a result of the collision that he sustained several injuries including generalised bruising of the body; soft tissue injury of the neck; back injury; and injury to the L5/S1 disc which caused or contributed to the development of a disc prolapse.
The plaintiff claims that had it not been for the injury sustained in the collision, it is likely that he would have obtained employment in the mining industry in Kalgoorlie as a trade's assistant/labourer, with a view to gaining advancement within the lucrative employment environment.
He claims by way of past economic loss, the difference between what he would have earned in the mining industry and what he has actually earned since the collision.
The plaintiff claims that but for the injury sustained he would have developed a career within the mining industry until the age of 65 years.
By way of loss of earning capacity, the plaintiff claims that he is physically incapable of working in the mining industry, and is precluded from any employment which involves heavy lifting or strenuous physical labour.
As a result of his injuries, the plaintiff claims that he has sustained permanent reduction in the parameters of possible future employment opportunities, and is limited to employment of a restricted and non‑physical capacity.
The defendant has filed a general defence and puts the plaintiff to the proof of his claim, and further denies that the plaintiff has suffered the claimed or any loss of earnings or loss of earning capacity.
The critical issue in this action and the main issue for determination is whether the court accepts the view of Mr Soni Narula, the treating neurosurgeon, that an annular tear or fissure occurred as a result of the collision. On the other hand, medical evidence called by the defendant, in particular, Mr Richard Vaughan, is to the effect that the annular fissure spontaneously occurred and was not the result of the collision.
In essence, this is a case about causation.

The plaintiff's background

The plaintiff is now 24 years of age. He was born on 2 October 1981.
The plaintiff testified that he left school after Year 12 and enrolled at the University of Western Australia in a physical and health education degree. He studied at that university for one year. Thereafter, he enrolled at Edith Cowan University but left after the first semester in mid‑2000.
At the time his father was working as an engineer in Kalgoorlie and the plaintiff decided to go to Kalgoorlie to "get into the mines".
The plaintiff testified that he was hoping to get employment as a trade's assistant, hopefully doing "some course and picking up a trade" and work his "way up the financial ladder in the mines".
Prior to going to Kalgoorlie, the plaintiff was an active sportsman. He played Colts football, district cricket, and was a member of a basketball team with friends. Further, he had an active social life, going out most nights and weekends to parties and other social functions.
On arrival in Kalgoorlie in around October 2000, the plaintiff put his name down at two labour hire companies for the mines.
The plaintiff had not obtained any employment in Kalgoorlie before the collision. He spent his time playing cricket.

The motor vehicle accident

The accident occurred on 24 November 2000. Just prior to the accident the plaintiff was travelling at about 75 kilometres an hour and "got flashed" to warn him that there were police ahead. He slowed down to 70 kilometres per hour using cruise control.
The plaintiff had the right of way as he approached the intersection. The truck driven by the defendant collided with him.
The plaintiff testified that his car was spun and pushed 90 degrees to the other side of the road, about five metres away.
During the impact, the plaintiff was flung to his left until he was unable to "go anymore" and then "pushed back the other way", and "whacked" his head on the top of the car.
The first thing he did was to get out of the car and inspect the damage. He said he was upset at the time because he had just got the car back after it was stolen.
He called his father to tell him of the collision and was told to stay where he was, and to check the welfare of the other driver.
The plaintiff testified that he did not feel any pain immediately after the collision, but was "feeling very pumped up and amped, very, you know, charged".
After the police came he gave them a statement and then went to his father's office. He was unable to recall what exactly he did at his father's office.
Later that night he started to feel a bit stiff around the neck and back. The stiffness he felt was just beneath the shoulder blades down to his trouser belt. As far as I can make out from the evidence, the plaintiff has not given this description of the location of the lower back pain to any of his treatment providers.
The plaintiff said that he took some Nurofen and thought that the effects were just a result of adrenalin pumping, and that if he went to sleep he would be fine the next day.
The next day he said he woke up in agony and was unable to move his neck.
He said his neck felt as if it was in a brace as he was not able to move it. It was very painful, particularly when turning his neck.
He was also a bit stiff in the back but he did not think much of that because of the pain in his neck which felt as if someone was stabbing him in the neck.
He underwent x‑rays which revealed that there were no breaks or fractures.
The doctor told him that the pain would go away with time. He said he did not go to doctors very often and he believed the doctor's prognosis and "just went on with [his] life".
It is not in dispute that the plaintiff had not suffered any medical condition prior to the accident, and had no history of neck or back problems.

The plaintiff's condition after the accident

The plaintiff testified that he believed that he played cricket the next weekend. He said he was feeling very stiff and sore, particularly in the neck as he "was still suffering from whiplash" and his back was stiff. The stiffness was under the shoulder blades, down the back to his trouser belt.
He noticed the pain and stiffness when he was vacuuming and dish washing. These activities required him to lean over because he is a tall man.
Further, the plaintiff testified that if he was sitting at the computer, he would get neck pain going down to the shoulders and the back pain as well.
He said gradually the "whiplash" wore off and he could move his neck again. He was left with a muscle tightness and ache. The pain was aggravated if he bent over quickly to pick something up.
The stabbing pain changed to the muscle ache within a week or week and a half after the accident.
He had trouble sleeping because prior to the accident he used to sleep on his stomach, and after the accident he found that position impossible. He had trouble sleeping on his back and side, and his shoulders started to ache. He then had pain travelling down his arm which woke him up during the night.
A week or two after the accident he noticed some bruising which spread down his arms and chest, all the way to his fingernails and toenails. He said that he went to see a doctor about it. There is no evidence from that medical practitioner.

The plaintiff's activities and physical condition after the collision

Sometime after the accident the plaintiff obtained two days work erecting a tent for a musical. He said this was not a very physical job, and any lifting was done between two people.
After the first day's work he got stiffness at night time in his back and neck.
On 12 February 2001, the plaintiff obtained work at a gold mine in Kalgoorlie, employed by Omega Contracting Pty Ltd ("Omega"). This was essentially work as a clerk which involved creating an accounting system on the computer and setting up a filing system.
The work was full‑time, six days a week.
For the first two months the plaintiff was mainly doing computer work. After that he also showed contractors the sites of the jobs on the mine.
Whilst he was doing the computer work, the plaintiff testified that he went home at night with a stiff back, and "especially a pretty sore neck".
He got pain in his neck around the shoulder area and in his lower back. He was also getting pains down his arm at night which would cause him to wake up during the night.
As for sporting activities, he finished the cricket season in 2001 but decided not to participate in football because of his back and neck pain.
He spent most of his spare time at home.
He said because of the pain he was getting "quite grumpy", "easy to annoy" and "quite aggro" with his sister. On occasions the plaintiff said that he would travel to Perth to visit his mother which would take about six and a half hours in the car. He said his neck and lower back became quite sore, and on arrival in Perth he would be very stiff in the back and have a sore neck for the next couple of days.
He did not see a doctor about his symptoms as he believed that if he took some Nurofen he would be all right. However, it got to a stage where he was waking up and having to take tablets (presumably Nurofen), and his family were getting fed up with him complaining and being grumpy, and made an appointment for him to see a chiropractor.
In April 2001, the plaintiff consulted Mr Jason Stanford, a chiropractor in Kalgoorlie. He told Mr Stanford that he had back, neck and shoulder pain.
Initially he saw Mr Stanford every two weeks and then once a month. When he started the football season (presumably the 2002 season), he saw Mr Stanford once a week.
The plaintiff testified that he stopped his employment with Omega as the computer work was aggravating his neck and back. He thought security work might provide some relief as he would not be in a static position.
Accordingly, the plaintiff left Omega on 7 July 2001.
On 27 August 2001, the plaintiff started work as a security guard with Templar Security ("Templar") referred to in evidence as Chubb Security. This work involved going on patrol and checking business premises. However, the plaintiff found that he would have to get in and out of a vehicle up to 15 times a night and this aggravated his back. As a result, the plaintiff changed jobs again.
On 16 February 2002, the plaintiff started work with Chubb Security Services ("Chubb"). For the first week and a half he stayed on Templar's book and thereafter was available for odd jobs with Templar. However, his main occupation was with Chubb. The work included travelling from Kalgoorlie to Esperance in an armoured vehicle loaded with money for ATMs. The plaintiff testified that the round trip journey of eight hours sitting hurt his back and he decided to return to Templar.
In the meantime, the plaintiff played football at senior level and also played cricket in the 2002-2003 season.
In late November 2002, the plaintiff recommenced work with Templar. The work was mainly in the "gold room" where he would search and scan personnel.
In November 2002, the plaintiff was about to leave for a holiday in Tasmania. As he got off a couch, he noticed a pain in his leg just under the right buttock. He did not think much of it as it was the end of the football season and he thought that his sporting activities might have aggravated his leg.
However, the leg pain got progressively worse. By the time he got back from Tasmania in January 2003 it was quite painful. He noticed it even when sitting down. Then, after a game of cricket in January, the pain progressed to his leg. He complained to his chiropractor who recommended an x‑ray.
Thereafter he went to see Dr Seal at the Boulder Medical Practice. He also saw Dr Joseph there. After x‑rays and scans, Dr Joseph referred the plaintiff to a Dr Ng who was described as "a back specialist in the field of motor vehicle accidents". Following radiological investigation, Dr Joseph referred the plaintiff to Mr Soni Narula.
On 23 April 2003, the plaintiff stopped work due to the sciatic pain.
The radiological investigations (MRI scan) showed "a well defined disc prolapse at the right L5/S1 level impinging on the S1 nerve root" (See Narula 7 May 2003).
Mr Narula was of the view that the plaintiff may have suffered an annular fissure which resulted in a disc prolapse producing neurological deficit.
Mr Narula reported that the plaintiff was aware of mild tenderness even at L4/5, and the MRI scan showed an underlying annular fissure on that side but with no disc protrusion.
Mr Narula recommended a microdisectomy. This was carried out on 17 July 2003. During surgery, Mr noted that the S1 nerve root was significantly impinged and was completely decompressed "via a mis‑microdisectomy".
In a post‑operative follow-up one month after surgery, the plaintiff reported complete improvement of his leg pain and resolution of his difficulty in sitting.

Jobs after surgery

After the operation, the plaintiff worked at a real estate agency as this had flexible work hours.
However, he did not earn much money. He worked in the real estate agency from February 2004 until August 2004.
Thereafter he returned to security work with Chubb Security as a concierge from November 2004 until February 2006. This job involved watching the monitors, patrolling the building and locking down the building. He was required to work day and night shift but he only wanted work on a day shift.
From February 2006 to April 2006, the plaintiff worked at Wilson Security. However, until April 2006, he only did odd jobs.
The plaintiff's present job is in Port Hedland working for BP Air refuelling planes. He testified that this is a physically undemanding job.

The medical evidence

It is necessary to set out the medical evidence in some detail. There was general agreement among the expert medical witnesses that the plaintiff's history and reported and observed on-going symptoms are critical in identifying when the annular fissure was caused.

Chronology of medical treatment

I begin with a brief chronology of the plaintiff's medical treatment and review.

25 November 2000	the plaintiff attended Kalgoorlie Regional Hospital. Dr Fraser Moss, Acting Medical Director reported to ICWA by letter dated 4 January 2001.
27 November 2001	radiology of the plaintiff's cervical spine.
27 April 2001– 23 July 2002	the plaintiff consulted Mr Jason Stanford, chiropractor.
4 September 2002	the plaintiff was reviewed by Dr Vyrnwy‑Jones, occupational physician, at the request of ICWA.
15 January 2003	Dr Seal, general practitioner at the Boulder Medical practice, reviewed the plaintiff.
23 January 2003	Mr Stewart Brash, orthopaedic surgeon, reviewed the plaintiff at the request of his parents' general practitioner, Dr Beckhurst.

1 February 2003 – 13 June 2003	the plaintiff was treated by Dr Neville Joseph, general practitioner.
23 April 2003	radiology of the plaintiff's lumbar spine.
24 April 2003	MRI of the plaintiff's lumbar spine.
7 May 2003	Mr Soni Narula. The plaintiff first consulted Mr Soni Narula, neurosurgeon.
19 May 2003	Dr John Rosenthal, rehabilitation physician reported to ICWA after reviewing the relevant documentation about the plaintiff's condition and treatment.
10 June 2003	radiology of the plaintiff's lumbar spine.
10 June 2003	Mr Richard Vaughan, neurosurgeon reviewed the plaintiff at the request of ICWA.
7 July 2003	Mr Narula performed a microdiscectomy on the plaintiff at L5/S1.
8 April 2004	Mr Richard Vaughan reviewed the plaintiff at the request of ICWA.

The plaintiff's treatment and review

The notes from the hospital and the report from the acting medical director at the Northern Goldfields Health Services dated 4 January 2001 report that on examination at the hospital the plaintiff was suffering from:
•Tenderness over C4 and C5 of the neck;
•Reduced range of flexion and tension of the neck due to pain;
•Stiffness of the neck – left side greater than the right side.
There is no mention in the notes of any complaint about back stiffness or pain.
The plaintiff testified that at the hospital, he explained what was wrong with his neck as that was the major symptom he was experiencing and he said "that's what they asked for".
He cannot recall whether he mentioned the stiffness in his back. He was preoccupied with his neck as he thought he had broken something, he was unable to move it and he said he had never experienced pain like that before.
The x-ray taken on 27 November 2000 of the plaintiff's cervical spine revealed no fracture or abnormalities.
On 27 April 2001, the plaintiff first attended at Mr Stanford's clinic. He completed a questionnaire (about which he gave no evidence) which appears to be a checklist or ready review by the chiropractor as to the plaintiff's symptoms. The plaintiff notes his "major Symptom or complaint" as "back/neck pain". He ticked the symptom "low back problems" twice which indicated that he experienced this symptom frequently. Mr Stanford noted that the plaintiff complained of "lumbar pain" occasionally.
In any event, Mr Stanford's evidence is that from as early as second consultation, after x-rays were taken, he treated the plaintiff for both neck and low back pain.

Dr Vyrnwy‑Jones

Dr Vyrnwy‑Jones reported to ICWA on 4 September 2002 that the plaintiff complained of neck stiffness and soreness which waxed and waned in its intensity. Over the previous couple of months he had experienced pain over the right shoulder, sometimes radiating down as far as the right elbow, and headaches which made it difficult for him to sleep.
The plaintiff complained that long term driving exacerbated his neck pain, particularly if the road was rough and uneven as there would be a lot of vibration.
The plaintiff told Dr Vyrnwy‑Jones that his shoulders tended to crack when he moved them, and he also complained of cracking noises in his cervical spine.
Dr Vyrnwy‑Jones noted in his report:
"Over the last few months Mr Biddle has experienced localised lower lumbo-sacral pain. There has been no radiation to the lower limbs.
Interestingly, Mr Biddle seems to have been receiving chiropractic treatment for his lower back ever since the date of the original collision, even though at the time he was only complaining of neck pain".
It would seem from the latter comment that Dr Vyrnwy‑Jones was unaware that Mr Stanford had also been treating the plaintiff for lower back pain as well as neck pain. No doubt this is because Mr Stanford had made no mention of the lower back pain in his two letters to ICWA dated 31 September 2001 and 4 June 2002 which were supplied to Dr Vyrnwy‑Jones prior to the preparation of his report.

Dr Vyrnwy‑Jones reported that the plaintiff had a very good range of motion of the cervical, thoracic, and lumbo-sacral spine in both shoulders and did not expect him to be left with significant permanent disability.
Dr Vyrnwy‑Jones did not report any diagnosis or consequences from the plaintiff's reported "localised lower lumbo-sacral pain".

Mr Stewart Brash

On 23 January 2003, Mr Brash, orthopaedic surgeon, reviewed the plaintiff at the request of Dr Beckhurst who was then the general practitioner of the plaintiff's parents.
The defendant called Mr Brash on the issue of the plaintiff's credibility and reliability in reporting his history.
Mr Brash was on the verge of retirement when he saw the plaintiff and conceded that some of the history as reported to Dr Beckhurst in his letter dated 28 January 2003 was not accurate. For example, he reported that six weeks after the collision the plaintiff returned to work full‑time as a trade's assistant with a maintenance engineer, and was involved in "very heavy work". He conceded that his notes did not reflect this to be the plaintiff's description of the work he was doing.
Mr Brash reported that the plaintiff described "a gradual onset of low back pain" in February 2001 while sitting at the computer.
Mr Brash's report was not a medico/legal report and its upshot was his recommendation to Dr Beckhurst that ankylosing spondylitis (a rheumatic arthritis of the spine) be investigated and ruled out. He also suggested that it might be necessary for the plaintiff to have an MRI of the lumbo‑sacral spine.
I do not rely to any great extent on the reported history taken by Mr Brash. However, the plaintiff certainly made some mention to him of low back pain.

Dr Neville Joseph

By the time the plaintiff consulted Dr Neville Joseph at the Boulder Medical Practice on 1 February 2003, he was suffering "from constant right lower back pains and radiculopathy in the S1 distribution of his right lower leg". By the time of Dr Joseph's report to ICWA dated 4 May 2003, an MRI scan of the lumbo‑sacral spine, performed on 24 April 2003, confirmed a right posterolateral disc protrusion at L5/S1, impinging on the right S1 nerve root with associated L4/5 disc degeneration.
The plaintiff consulted Dr Joseph 18 times in the period from 1 February 2003 to 13 June 2003.
Dr Joseph testified that in his practice he sees a lot of young men with acute lower back pain. His experience is that ‑
"most young blokes don't often know whether they should approach a general practitioner, medical officer, a chiropractor. They often go to people who give them relief, and if the chiropractor gives them relief, … that's how it was, but this is a very common thing that we see here in the Goldfields and I do deal a lot with lower back pains as well as injuries relating to other joints and we see a lot of neck and back pains following car collision victims, so it's not unusual".
Dr Joseph testified that it is common to see annular fissures with disc protrusions as a complication of the tear because the tear has not had the opportunity to heal. This is either because of lack of advice given to the patient or because of ignorance as to the pathology and many other factors.
Dr Joseph testified that the history he took was identical to that taken by Dr Vyrnwy‑Jones.
Dr Joseph testified that in Kalgoorlie, the majority of people living there are young miners who are involved in "labourers duties".
Dr Joseph testified that as the cervical neck pain subsided, the back pain became more troublesome. He stated the obvious that when a person is bruised and battered and sore all over, there is a concentration on the area that is hurting the most. In the plaintiff's case this happened to be his neck.
Dr Joseph practises as a general practitioner. His view as stated in his report dated 9 November 2003 is:
"My impression of the relationship between the collision and his back and right leg pains is that he most likely suffered an annular fissure in the lower back which at the time was distracted by the more severe symptoms in the neck. With time, the disc protrusion may have occurred through the defect without necessarily having an identifiable precipitating event. This explains the gradual onset, the intermittent character and the worsening of the pains with time. My opinion is further supported by the fact that Jason was a healthy active young adult prior to the collision with no particular history of back or leg pains".
Dr Joseph testified that his opinion was not affected by the opinion of Mr Narula.

Mr Narula's evidence

Mr Narula initially saw the plaintiff on 7 May 2003. He noted that the recent MRI scan showed a "well defined disc prolapse at the right L5/S1 level impinging upon the S1 nerve root".
At that stage Mr Narula was of the view "Clinically it appears he may have suffered an annular fissure which with time has resulted in a disc prolapse producing neurological deficit". Mr Narula recommended surgery.
Mr Narula explained an annular fissure. He testified that the annulus fibrosis is a structure which contains the disc within its space. The discs adjoin the vertebrae and act as cushions which help in absorbing shock and daily wear and tear.
The annulus fibrosis is a criss‑crossing network which extends from the lower border of the vertebrae above to the upper border of the vertebrae below. The lattice work like fibres run at different directions to each other and therefore add rigidity.
The fibres contain a portion of the disc called the nucleus pulposus which is the main shock absorber.
Fissures tend to occur predominantly where the posterior or the back part of the vertebral body joins the sides of the vertebral body. Fissures can also occur in the mid line of the vertebral body, either at the front or at the back, but usually at the back.
An annular tear can provide severe or no symptoms, depending on "unpredictable factors". The symptoms can cause leg pain, pain in the lower part of the abdomen and also back pain and spasms. As to the mechanism in tearing of the annulus, Mr Narula testified that the disc itself is full of water. If superficial fibres in the annulus are torn, then with more exertion it can become weaker and this can result in the nucleus pulposus rupturing through the tear resulting in impingement on the nerve, thereby causing nerve pain.
Mr Narula's opinion was that the tear in the annulus verified by MRI was the result of the collision.
His reasons for this include the following.
The bruising described by the plaintiff was indicative of deep soft tissue injury. Further, in his view it is rare for a 21 year old to develop a disc prolapse without an underlying injury. In his 20 years experience in neurosurgery, Mr Narula said that he does not often see patients below the age of 20 years presenting with disc prolapse. He would see one or two patients with such presentation out of 400 or 500 patients a year.
Although the plaintiff did have mild degenerative change, he had no symptoms pre‑existing the collision, and has never reported a problem with his lower back.
The impact in the collision was to the right side and the disc prolapse is also on the right side.
He was of the view that the tear was relatively small and did not produce any major symptoms initially. However, as the plaintiff engaged in sporting activities, and as the pain and stiffness in his neck gradually subsided, the annulus felt the pressure of the underlying nucleus fibrosis and has gradually given way. Accordingly, within a year or so of the collision the plaintiff started to develop leg symptoms.
Mr Narula is of the view that immediate symptoms depend on the significance of the initial injury.
In effect, Mr Narula's evidence is that the neck injury which caused severe pain was the focus of the plaintiff's concern.
On the reports provided to Mr Narula, and given the plaintiff's history which he took, the plaintiff was not symptom free between the collision and May 2003 when Mr Narula first saw him.
In his report dated 19 February 2004, Mr Narula states:
"The fact that it required a long time for the lower back injury to present itself belies the fact that he is a young man of 21 years of age, in perfectly good health with no previous back injury, being relatively tall allowing greater distribution of the translation impact of a modest injury. One would have to consider the presence of a modest injury to his L5/S1 disc in the likely form of an annular fissure which had a delayed onset and further weakening within the annulus due to ongoing exertional sport and prolonged sitting at work driving between Esperance and Kalgoorlie."
In his February report, Mr Narula stated :
"The very nature of delayed presentation of radicular symptoms is in keeping with the natural history and in this instance related to his age and the mechanism of injury. Certainly the sport activities and the work no doubt contributed to the presentation. In the absence of either of these two it would be my opinion that he would probably not have developed a disc prolapse from the original injury and would possibly have not become symptomatic at all from natural healing and symptoms of progression may have occurred only many years later".
Mr Narula testified that the accuracy of the history given by the patient is critical in relation to the issues of causation of the annular fissure.
Under cross‑examination, Mr Narula testified that annular tears can be relatively asymptomatic.
Mr Narula said on the basis of the "literature" he has read, that not many people present with disc prolapse following a sporting injury, and there are much higher instances of presentation many years later.
Under cross‑examination, Mr Narula testified that most annular fissures heal spontaneously if given enough time and "lack of provocation". He agreed that an annular fissure can be caused by "minor type of events".
It is fair to say that counsel did not squarely put Mr Vaughan's opinion to Mr Narula, that is, that most discal prolapses usually occur without injury or spontaneously, and that the playing of sport as recounted by the plaintiff was inconsistent with the existence of an annular tear. The cross‑examination appeared to proceed along the basis that there were other explanations for the annular tear apart from the collision. These might include playing sport to the extent recounted, or even "the most minor of activities".
However, that is not the defendant's case. The defendant has not pleaded that there were intervening causes for the annular fissure.
In re‑examination, Mr Narula testified that the majority of such tears go unnoticed and unrecollected.
He also testified in re‑examination:
"for a disc prolapse to have occurred in relation to those sports he would have had ongoing symptoms from that sport onwards, but these also subsided, so he has a relatively minor injury in the beginning. Even though it appears he has had more bigger injuries which put him to bed for a day or two, these themselves have not caused him such a problem, so the tears have taken their time to present. He's got a big, huge body and therefore it has taken longer, and that's not surprising at all".

The evidence of Mr Richard Vaughan

Mr Vaughan reviewed the plaintiff on 10 June 2003 which was shortly before his surgery on 7 July 2003, and again on 8 April 2004. Both reviews were performed at the request of ICWA.
In his reports, Mr Vaughan refers to the plaintiff's described symptoms as relating to his neck and upper torso. By the time Mr Vaughan saw the plaintiff, the plaintiff was suffering severe and chronic sciatic pain.
Mr Vaughan testified that the plaintiff demonstrated the location of his back pain which he noted as being "thoracic, which would probably be down as far as L1, but there's not that big a difference between L1 and L3", and between L3 and L5, there are another two and a half segments.
Mr Vaughan very fairly noted that the plaintiff was in extreme pain at the time of the consultation and "people with sciatica are in extreme pain and have difficulty in sitting and talking and discussing things, so that must be borne in mind with this particular presentation."
It appears that when Mr Vaughan saw the plaintiff for the second time on 6 April 2004 that he did not take another history dating from the collision.
In his first report to ICWA dated 10 June 2003, Mr Vaughan was of the view:
"the upper torso symptoms and some of his back discomfort I would relate directly to the motor vehicle crash but I could not relate the right sciatica to the crash as the symptoms occurred much later than the crash and like so many forms of sciatica, arose spontaneously".
I pause to observe that this is the crux of the defence. The defendant does not allege any intervening cause for the annular tear. It relies, almost exclusively, on Mr Vaughan's opinion that the sciatica arose spontaneously. In other words, that the annular tear arose spontaneously.
Mr Vaughan went on to say in his report dated 10 June 2003, explaining his opinion that the annular tear was not caused in the collision, that the plaintiff continued to work after the collision and continued playing sport.
In his report dated 27 May 2004 to the plaintiff's solicitors, Mr Vaughan expanded on his reasons as to the cause of the annular tear. He was not persuaded by further material which revealed chiropractic treatment for the plaintiff's lower back which Mr Vaughan believed had been given "since the date of [the] original collision".
Essentially, Mr Vaughan's reasons for his opinion are as follows.
He considered that if an annular tear had occurred in the collision, the plaintiff would have suffered severe pain at the time. As there is no such pain reported until around November 2002 in the lower back area, that is inconsistent with an annular tear occurring in November 2000. Further, Mr Vaughan doubted whether the plaintiff could participate in sport if he was suffering from a significant back problem. Mr Vaughan also considered that the temporal relationship between the collision and the sciatic pain was too long to conclude that the collision was responsible for the sciatic pain although he conceded that "many things may be possible".
In Mr Vaughan's view, despite the plaintiff's age, good health and bodily habits, it is likely that in or about November 2002 that he would have developed right sciatica as "most discal prolapses at any age occur usually without injury, that is spontaneously and I believe that is the position for Mr Biddle". He reported that if there were evidence that the plaintiff had complained constantly of back pain, he would place more weight on Mr Narula's opinion.
By letter dated 13 January 2005 to the plaintiff's solicitors, and after reviewing Mr Stanford's report dated 2 November 2004, Mr Vaughan stated that he was not able to change his opinion.
Under cross‑examination, Mr Vaughan conceded that the information about the complaint of lower back pain to the chiropractor in April 2001 "lends support " to Mr Narula's opinion. Further, he agreed to the proposition that in the absence of massive trauma, where there is " a minor matter which sequentially leads on to a disc protrusion or disc rupture" he would look for "some kind of underlying weakness" that might be degenerative and might be the result of previous trauma. He also agreed that trauma may lead to a relatively minor disruption "insofar of the commencement of a split or a circumferential separation…". Although discs do not repair themselves, there could be fibrosis which would, in effect, mask the tear. He agreed that given a relatively minor tear, activities such as playing football or cricket or "bouncing around in the back of a truck" may cause an underlying defect or disruption to deteriorate and ultimately lead to a rupture.
Mr Vaughan testified that if the body is restrained by a seat belt in a collision it would be less likely that there would be a significant tear.
Mr Vaughan said that "the lumbar spine, particularly the lower lumbar spine, is well protected by the safety design of the vehicle, the seat and the harnessing."
Although Mr Vaughan was not prepared to change his view about the issue of causation, his evidence does not directly contradict the opinion of Mr Narula. The main point of difference appears to be the respective opinions about the degree of pain a person would experience if he suffered an annular fissure, even a minor one, in a collision.

Dr John Rosenthal

Dr Rosenthal was of the view that because the annulus is made up of fibrous tissue, has a blood supply and is "very richly innervated with nervous tissue" a traumatic tear to the annulus "is not an occal event: it is a clinically recognisable entity". The clinical manifestation would be severe, localised pain. He testified that one might have an annular tear without symptoms but generally that would not be the result of trauma. However, he said that an acute injury to the annulus whether low grade or occal "is not a silent phenomenon".
Dr Rosenthal agreed that small concentric annular tears frequently heal. He did not rule out the possibility of a "low grade" annular tear healing by itself were it not for the intervention of some sort of activity which might aggravate the tear resulting in a more serious tear.
Dr Rosenthal said he would not expect a healthy disc to suddenly protrude. There must be some underlying problem. He said that disc protrusions generally occur in a disc which has degenerated. He said it was possible for discs to protrude following some kind of previous trauma.
Dr Rosenthal agreed that if a person complained of back pain soon after a collision, it would imply that there had been some injury to the region. He said that generally those involved in a collision are sore all over and then focal injury manifests but the symptoms do localise early over days and up to a week later.
The main difference between the opinions of Mr Narula on the one hand and Mr Vaughan and Dr Rosenthal on the other, is that the latter two are of the view that if there had been an annular fissure caused in the collision, there would be severe pain within a short period of time.
Mr Vaughan and Dr Rosenthal both agree that healthy discs do not spontaneously rupture. Before a rupture there would be an underlying weakness or degeneration. This accords with Mr Naurla's view although his opinion is that in the plaintiff's case, there had been a minor tear.
There is no evidence of any degeneration to the extent which would explain a disc rupture in November 2002 when the sciatic pain manifested. There is no evidence of any supervening event and that is not the defendant's case.
It is common cause that the plaintiff did have an annular tear which required surgery in July 2003. The plaintiff must prove that it was more probable than not that he suffered an annular tear in the collision.
I am satisfied on the balance of probabilities that the plaintiff did suffer an annular tear in the collision.
He suffered low back pain from the time of the collision. It is understandable that he did not mention it to the triage nurse and the doctor who treated him at the Kalgoorlie Hospital on 25 November 2000, given that his main concern and more severe pain was in the cervical region, and, according to the plaintiff, the hospital staff asked him about his main concern.
The hospital doctor told the plaintiff that the pain would resolve in time and the plaintiff accepted this advice. It must be remembered that the plaintiff was only 19 years old at the time, was otherwise fit and healthy and no doubt fitted into the category of young men about whom Dr Joseph testified as outlined above.
The plaintiff only consulted a chiropractor at the behest of his family to whom he had complained constantly since the collision about his pain. The plaintiff complained of lower back pain to the chiropractor who treated him for that but whose main focus was on the cervical pain which was causing the most problem.

The plaintiff was employed in a variety of occupational activities but changed his employment three times because of the pain in his neck and lower back.
There is therefore a history of lower back pain from the date of the collision albeit not the prime focus of the plaintiff's attention as the neck pain was worse.
The sciatic pain occurred in November 2002 when he got off a couch and became worse after a cricket match in January 2003. It is highly unlikely that the couch incident caused the annular tear. It is the type of incident which Mr Vaughan identified as the precipitating event for an annular tear (others included lifting, coughing or sneezing).
When Mr Narula saw the plaintiff in May 2003, he suspected an annular tear which diagnosis could not be confirmed until an MRI had been done.
Mr Narula is an experienced neurosurgeon. His evidence is that an annular fissure can cause severe or no symptoms depending on "unpredictable factors". This has not been the experience of Mr Vaughan or Dr Rosenthal although they cannot absolutely rule it out. Such differing experiences are common place in medicine.
In my view, on the evidence, there is no other explanation for the annular tear other than the collision.

General damages

The only real dispute between the plaintiff and the defendant relates to the cause of the annular tear. The defendant does not seriously contest that the plaintiff suffered the injuries and pain which he described in evidence except to some extent the complaint of lower back pain.
I accept the plaintiff’s evidence of low back pain from a day or so after the collision. In my view, the plaintiff did not make the low back pain a focus of his complaints given the intensity of the neck pain. Further, he appeared to be quite a stoical young man who did not wish to make a fuss about his symptoms until they became acute in November 2002.
I find that the plaintiff suffered generalised aches and pains as a result of being thrown around by the impact. He experienced severe, intense neck pain for a period of weeks together with associated low back pain. The neck pain substantially resolved as time went on. However, the plaintiff was never pain free. From November 2002, he developed sciatic pain which was severe and incapacitating. This continued until he underwent surgery on 7 July 2003. To varying degrees before his surgery, the plaintiff had disturbed sleep and mood swings.
The plaintiff testified that he still gets moody if his neck is sore. He does not go to hotels as there is no proper support for his back. He testified that he spends seven out of ten nights at home.
In my view, the evidence establishes that until he underwent surgery in July 2003, the plaintiff suffered pain, a degree of physical incapacity, disturbed sleep, interference with his sporting and social activities and mood swings.
The plaintiff testified that he still get pain in his back if he twists or turns too sharply and feels a "grab in the nerve" and a stabbing pain. He said he still gets a lot of stiffness especially if leaning over a lot or sitting too long at the computer. His neck still flares up in the cold. Sitting at the computer or driving for an hour or two aggravates his neck and then his back and he takes Nurofen and has massages to relieve the pain. Driving long distances, vacuuming and dishwashing aggravates the pain. He is able to sleep through the night but sometimes wakes with stiffness and pain in his neck or shoulder.
Since being in Port Hedland he has played cricket and had some pain and stiffness in his back the next day.
I am of the view that the plaintiff’s symptoms have now largely resolved. Whatever lingering pain or stiffness which endures is relatively minor.

Assessment of general damages

Non-pecuniary loss is defined in The Motor Vehicle (Third Party Insurance) Act 1943 ("the Act") to include pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm: s 3C(1).
The provisions of s 3C of the Act govern the amount of damages to be awarded to the plaintiff for non-pecuniary loss.
Section (2) of s 3C of the Act provides that:
"(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."
The maximum amount of damages that may be awarded under the Act for non-pecuniary loss as from 1 July 2006 is set at a figure of $279,000 (Amount "A"). Subsection (3) of s 3C provides as follows:
"(3)The maximum amount of damages that may be awarded for non-pecuniary loss is Amount "A", but the maximum amount may be awarded only in a most extreme case."
After canvassing the evidence relevant to the heads of damage which fall within an award of general damages it is then necessary to consider what might be a most extreme case in which the maximum amount of damages, may be awarded for non-pecuniary loss, and then apportion damages by comparing the severity of this plaintiff's non-pecuniary loss with that likely to be suffered in a most extreme case: Southgate v Waterford (1990) 21 NSWLR 427 at 440.
When the plaintiff's injuries and associated symptoms are compared with the examples of what might be regarded as a most extreme case, for example, quadriplegia, I find that the plaintiff's injuries and symptoms, their progression and treatment (including the surgery) and the effect that they have had on the plaintiff's enjoyment of life puts this situation at 15 per cent of a most extreme case. This results in a calculation of $41,850.
As this amount of $41,850 is more than Amount "B" ($14,000) but less than Amount "C" ($42,500), it is necessary pursuant to s 3C(5) that the amount of damages awarded for non-pecuniary loss be the excess of the amount so assessed over Amount "B".
I therefore assess damages for non-pecuniary loss at $27,850.

Past loss of income

At the time of the collision the plaintiff had no work history. Indeed, like so many other young people who drop out of university, he did not have any firm views on a career path. I am of the view that he went to Kalgoorlie in the hope rather than the expectation of finding a lucrative, long term job in the mining industry.
I face the task of determining what the plaintiff would have earned but for the accident.
There is no evidence about the opportunities for work in the mining industry, the trades available or the training required in Kalgoorlie at the relevant time and no evidence about the plaintiff’s desire for work in a particular field let alone his suitability for such work.
The plaintiff’s father testified that he is the general manager of a company which is a franchise of BP. The company is responsible for running the depot and delivering fuel to commercial customers such as trucking contractors, earth movers and retail outlets in the region. He is responsible for employing staff.
Mr Biddle testified that after the collision he was "not comfortable" with the plaintiff earning such a low hourly rate which he believed was around $10 per hour. He said that if the plaintiff could not have found "better employment" he would have employed him. However, he wanted his son to learn a few life lessons for a few months. As he said:
"He really had to sort out himself what future he wanted to do. If it was tertiary education or whether he was going to have to pick up some career outside of the tertiary side."
That indicates that the plaintiff had no firm views on his career path.
Mr Biddle gave consideration to the sort of job the plaintiff could do within his company. He thought he might pick up a job as a storeman in the company. However, he said that after the collision the plaintiff would not pass the medical test. He testified that in the beginning of 2001, the rates for a storeman were $20 per hour. A storeman would work around 50 to 60 hours a week as his company is a seven day operation.
There is no direct evidence that the plaintiff would have accepted a job as a storeman with his father. However, given that the plaintiff had not worked before he went to Kalgoorlie and that he went there specifically to find work, it is reasonable to infer that if his father had offered him a job, he would have taken it. The evidence suggests that the offer of a job with Omega came up and the plaintiff took it without regard to future prospects. However, by then his expectations no doubt had changed given he had been injured in the collision.
It is clear the pain and physical incapacity resulting from the collision reduced the plaintiff’s range of employment as he was not able to maintain clerical work or work involving driving for long periods or requiring certain physical movements (as evident from his employment with Chubb).
The plaintiff is obviously an attractive potential employee to potential employers given that he has had no difficulty in obtaining employment. I find him to be motivated to get work given his determination to find alternative employment in Kalgoorlie when his various jobs caused him pain and difficulty.
I have no doubt that the plaintiff would have obtained employment more suited to his intelligence and pre-existing physical condition were it not for the collision. It would seem that he had a guarantee of a job with his father. There is no evidence as to the progression of the hourly rate of a storeman over the years from 2001 to the present time.
The Australian Bureau of Statistics figures for Mining Construction and Related Labourers (the latest figures being May 2004) show average earnings of $988.10 per week. There was no evidence as to the type of jobs covered by this category. However, I assume it at least includes heavy labouring jobs. Mr Biddle testified that at the time of the collision, he paid his workers (storemen) $20 per hour and now has to compete for labour with mining companies, so he pays $28 to $29 per hour.
In assessing past loss of income, I would adopt the submission of the plaintiff’s counsel and agree it is reasonable to take a mid-point of $24.25 per hour. It would also be reasonable to take the starting date for employment as January 2001 which is when he started with Omega. If the plaintiff had remained in Kalgoorlie, it is reasonable to expect that he would have worked around 55 hours per week. This he would have earned a gross weekly wage of $1,333.75 (55 x $24.25).
The plaintiff’s actual earnings from 2001 until 30 June 2006 were as follows (as per the plaintiff’s schedule of damages).

Year

Gross

Tax

Net

2001

$16,216.00

$1,639.12

$14,576.88

2002

$30,330.00

$5,725.95

$24,604.05

2003

$24,527.00

$3,780.09

$20,746.91

2004

$330.00

$330.00

2005

$27,160.00

$4,714.80

$22,445.20

2006 (to 14/6)

$35,207.23

$133,770.23

$7,126.32

$22,986.28

$28,080.91

$110,783.95

The plaintiff’s schedule of damages as to past loss is as follows:

182 weeks at $925.81 net = $168,497.42.
104 weeks x $956.75 (taking into account [agreed] taxation changes effective from 1 July 2004) = $99,502. (I have added two weeks to the date of judgment.)

The total past loss of earnings is thus $157,215 ($267,999 less actual earnings of $110,784).
I add superannuation at 9 per cent reduced by 30 per cent (per Jongen) as follows:
286 weeks x $1,333.75 x 9 per cent x 70 per cent = $24,032.
Less $133,770 (gross income to 14/06/06) x 9 per cent x 70 per cent = $8,428.
Loss of superannuation is thus $15,604.
The total past loss is therefore $172,819 ($157,215 (income) + $15,604 (superannuation)).
I would apply a discount of 6 per cent for contingencies and the vicissitudes of life given the plaintiff’s lack of work history prior to the collision, the uncertainty with respect to the career path he would ultimately follow and the unpredictably as to whether he would remain in Kalgoorlie (see Kschammer v R W Piper & Sons Pty Ltd & Ors [2003] WASCA 298 at [163].
Thus the past loss is $172,819 less 6 per cent ($10,369) = $162,450.
Special damages are agreed at $9,233.93.
Interest on past loss is:
$162,450 + $9,234 x 3 per cent x 5.5 yrs = $28,328.
Thus the total past loss is:
Net income including superannuation $162,450
Special damages $9,234
Interest$28,328
Total$200,012

Loss of future earning capacity

The plaintiff must prove that his earning capacity has in fact been diminished by reasons of the injuries he received in the collision and that the diminution is or may be productive of financial loss: Medlin v State Government Insurance Commission (1995) 182 CLR 1.
I have outlined the plaintiff's present symptoms above. On the plaintiff’s account, jobs involving twisting and turning, driving long distances or sitting at a computer for an hour or two are likely to cause him some degree of pain. Dr Vaughan testified that jobs involving heaving lifting, driving vehicles over rough terrain, repetitive bending or twisting or maintaining static posture for a long period of time would be contraindicated. That is the extent of the evidence relating to the plaintiff's work capacity save for his work history post surgery.
Although there was no evidence from an occupational physician as to the range of employment activities the plaintiff might be capable of given his present symptoms and past history, I find that his range of employment options has been reduced as a result of his injuries. For example, it is unlikely that he would be employed by his father as a storeman. However, he is capable of full time work as is evident from his employment history after his surgery.
His work history after the collision is unlikely to be a true reflection of his worth as an employee given his physical restrictions.
In Stork ICM Australia Pty Ltd -v- Hill [2002] WASCA 132 in considering the issue of loss of earnings, the court held:
"In [Husher v Husher (1999) 197 CLR 138] the High Court held that the assessment of damages for loss of earning capacity requires identification of the capacity that has been impaired or lost and the financial loss occasioned as a result. Identification of the loss suffered because of the diminution of that capacity requires the Judge to form a view of what would have happened in the future but for the negligent infliction of personal injury.
The fact that at the time of the injury a person is not in the paid workforce or is not working to full capacity does not prevent or limit a claim for loss of earning capacity or loss of earnings: plaintiffs who can show that but for their injuries they might have worked and earned in the future are entitled to compensation. Thus, workers out of a job, part-time workers who intend to increase their hours later, people who intend to earn in their retirement or from second jobs, are all entitled to damages, at least to the extent that there was a chance that they would in the future have used their capacity to earn more money. Assessment of damages may be difficult in such cases but must be attempted."
I must predict what the earning capacity of the plaintiff would have been but for the accident notwithstanding that he had not formed any firm views about his future career path.
I have found as a matter of fact that the plaintiff’s residual injuries are minor.
The plaintiff testified that his present income is $50,000 per annum gross for working "two weeks on and two weeks off". However, he also testified that he thought his gross monthly income was $2,998. However, he said that this varied depending on whether he bought at plane ticket from Port Hedland.
There was no further elaboration of his present income notwithstanding that a gross monthly income of $2998 amounts to $35,979 per annum. The plaintiff’s counsel acknowledged the discrepancy in his closing address and submitted that the plaintiff’s income is more likely to be the lesser sum than the larger sum. However, this is a matter which is capable of precise proof and none was forthcoming.
In my view, given the plaintiff’s uncertainty as to his gross monthly income which varies and that, in my view, a person in those circumstances is more likely to recall his annual wage, I would calculate future loss by reference to the plaintiff’s evidence of his annual gross wage, namely $50,000. This equates to $962 gross per week or $753 net per week (using the 2006 ATO scale).
The plaintiff is young, relatively fit, intelligent and has a proved retained work capacity which presently attracts an annual gross income of $50,000.
On the evidence, I would regard the best employment scenario for the plaintiff but for the collision would be as an unskilled worker working fulltime 55 hours a week in a place such as Kalgoorlie.
However, I take into account that it is highly unlikely that as he aged, the plaintiff would continue to work 55 hours a week. Work opportunities might diminish in Kalgoorlie and like places. The plaintiff might choose to work in, say, the Perth metropolitan area where long hours and/or unskilled jobs may not be as readily obtained. The plaintiff has a reduced range of employment opportunities because of his collision caused back and neck injuries.
The plaintiff might choose to return to university or other tertiary study or otherwise retrain resulting in either greater (more likely) or lesser income. It is highly likely that were he working fulltime as opposed to his present 26 weeks per year, he would be earning considerably more than his present wage. I take into account the plaintiff’s work history, motivation and ability to find work even after the collision and before surgery, his relatively good health save that he must take some care of his back and his demonstrated willingness to work in remote areas. I take into account his relative youth and the fact that he has no decided intention with respect to his career path which means his future is to a large extent unpredictable.
The lack of pre‑collision work history and undetermined and uncertain career path, together with the other variables which I have mentioned make it very difficult to compensate the plaintiff for his undoubted reduced earning capacity. The calculation of damages is difficult but must be attempted. It would not be right to pluck a figure out of the air. I therefore determine the amount using the calculations below.
In so doing, I would adopt the gross hourly rate suggested by his counsel of $28.50 per week (being the mid point between $28 and $29 per hour which Mr Biddle Snr testified he would now pay a storeman). Then, doing the best I can, I determine that it is reasonable to assume that but for the collision, the plaintiff would work an average of 40 hours per week. That is a gross annual wage of $59280 ($28.50 x 40 hours x 52 weeks). That equates to $1,140 gross per week or $878 net (on the 2006 ATO scale the tax on $59,280 is $13,644).
The calculation of superannuation loss on these figures is:
$1,140 (potential gross weekly) less $962 (present gross weekly) x 9 per cent x 70 per cent = $11 (rounded up).
The figure representing loss of earning capacity is as follows:
$878 (potential net weekly wage) less $753 (present net weekly wage) = $125.
I apply the multiplier for 40.5 years:
810.9 x $136 per week ($125 + $11) = $110,282.
I would not make any deduction for contingencies as my assumption that the plaintiff would work for 40 hours a week takes into account the positive and negative contingencies which I have identified.

Summary of damages

General damages $27,850

Past loss

Net income including superannuation       $162,450
Special damages  $9,234
Interest$28,328      $200,012
Loss of future earning capacity  $110,282
Total  $338,144

Year	Gross	Tax	Net
2001	$16,216.00	$1,639.12	$14,576.88
2002	$30,330.00	$5,725.95	$24,604.05
2003	$24,527.00	$3,780.09	$20,746.91
2004	$330.00	$330.00
2005	$27,160.00	$4,714.80	$22,445.20
2006 (to 14/6)	$35,207.23 $133,770.23	$7,126.32 $22,986.28	$28,080.91 $110,783.95

[2006] WADC 102

11 July 2006