| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : BLONDEL -v- WESFARMERS CSBP LTD [2003] WADC 5 CORAM : DEANE DCJ HEARD : 27-31 MAY 2002, 26, 28-29 AUGUST 2002 DELIVERED : 16 JANUARY 2003 FILE NO/S : CIV 3216 of 1999 BETWEEN : EMMANUEL BERNARD BLONDEL Plaintiff
AND
WESFARMERS CSBP LTD
Defendant
Catchwords: Personal injury - Liability and quantum of damages in issue - Two alleged work related accidents in 1994 and 1997 - Whether in either or both instances employer negligent - Alleged breaches of contract of employment - Whether plaintiff contributorily negligent relevant to either alleged accident - Whether the second alleged injury exacerbated the symptoms of the first alleged injury - Whether plaintiff suffered pre-existing neck, shoulder and back problems unrelated to his employment - Claim for non-pecuniary loss, past and future economic loss, past and future gratuitous services and past and future medical expenses - Turns on own facts
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Legislation:
Occupational Health Safety & Welfare Act 1984, s 19
Result: Defendant liable in negligence for first accident but not for second accident - Damages assessed Representation:
Counsel:
Plaintiff : Mr I L K Marshall
Defendant : Mr D R Clyne
Solicitors:
Plaintiff : S C Nigam & Co
Defendant : Julian Lentzner
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Bankstown Foundry Pty Ltd v Braistina (1960) 160 CLR 301
Castro v Transfield (Qld) Pty Ltd (1983) 57 ALJR 619
Crombie v Uniting Church in Australia Property Trust (WA) (1997) 17 WAR 291
Duzevich v Carrier Airconditioning Pty Ltd [2000] WADC 277
Electric Power Transmission Pty Ltd v Cuiuli (1960) 104 CLR 177
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Jones v Dunkel & Anor (1959) 101 CLR 298
Lewis v High Duty Alloys Ltd [1957] All ER 740
McLean v Tedman & Anor (1984) 56 ALR 359
Podrebersek v Australian Iron & Steel Pty Ltd (1985) ALJR 492
Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121
Sungravure Pty Ltd v Meani (1964) 110 CLR 24
Ta v Lucky Import & Export Co Pty Ltd [2000] WASCA 65
The Council of the Shire of Wyong v Shirt & Ors (1981) 146 CLR 40
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Turner v State of South Australia (1982) 42 ALJR 669
Vozza v Tooth & Co Ltd (1964) 112 CLR 316
Willis v CRA Exploration Pty Ltd (1984) A Tort Rep 80-521
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Introduction 1 In this matter both liability and quantum of damages are in issue. The plaintiff claims that on 3 August 1994 in the course of his employment with the defendant, he was required to dismantle a compressor situated at the defendant's plant in Kwinana. It is alleged that because of the particular physical positions that the plaintiff was required to adopt in carrying out this work using various mechanical tools, he sustained injuries to his neck, left shoulder and upper back, for which he required a variety of medical treatments from a number of doctors over a period of time. As a result it is said that the plaintiff suffers and continues to suffer a range of physical disabilities including but not limited to headache, neck pain, restricted neck movements, left shoulder pain with some right shoulder pain. He also says he suffers left chest wall pain and restricted movement in the left arm with associated weakness of hand grip and finger pain as well as pain in both the upper and lower back with associated restricted movement. In addition it is said the plaintiff has lower back pain radiating into the left leg and foot which in turn reduces the plaintiff's ability to stand or walk for prolonged periods. Further it is pleaded that the plaintiff has a restricted ability to carry out a variety of manual tasks, for example lifting and driving. He suffers bouts of fatigue, reduced concentration and memory loss, insomnia and disturbed sleep pattern with associated anxiety, depression and loss of libido. 2 Relevant to the accident alleged on 3 August 1994 it is claimed that there has been a breach of the contract of employment between the plaintiff and defendant, who had a duty to take all reasonable precautions for the safety of the plaintiff in the course of his employment thereby not exposing him to risk of damage or injury of which it knew or ought to have known. It is said that the defendant failed in its duty to provide a safe work-place for the plaintiff pursuant to the contract of employment. Further, and in the alternative, it is pleaded that in failing to maintain such a work-place with associated acceptable levels of training, instruction and supervision to enable the plaintiff to carry out his work in a manner that did not expose him to hazards, the defendant has breached the provisions of s 19 of the Occupational Health, Safety and Welfare Act 1984. 3 Further, it is alleged that on the 15 December 1997 whilst again in the course of his employment with the defendant, the plaintiff was required to assist a co-worker to lift and load a desk weighing approximately 75 kilos onto the tray of a utility, which act exacerbated or
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aggravated the pre-existing injuries to the plaintiff's neck, left shoulder and upper back. As a result it is said that the plaintiff has continued to suffer a range of residual disabilities not dissimilar to those following upon the first alleged accident. A range of breaches on the part of the defendant are pleaded with respect to the first alleged accident suffered by the plaintiff and a similar series of allegations is made with respect to the defendant, its servants and agents in respect of the second alleged accident. 4 The plaintiff claims damages for non-pecuniary loss, past and future economic loss and past and future provision of gratuitous services as well as future medical expenses and treatment. 5 Relevant to the first accident it is necessary to determine whether the defendant failed to take all reasonable precautions for the safety of the plaintiff when it instructed him to dismantle the compressor at the site and whether it maintained a work-place of a kind that was as far as practicable of a type whereby the plaintiff was not exposed to hazards. There is an issue as to whether the defendant maintained and enforced a safe system of work for the plaintiff relevant to the first accident and whether the plaintiff was instructed, trained and supervised as was necessary to enable him to perform his work so he was not exposed to hazard. These issues incorporate a number of other questions for determination relevant to the alleged failures pleaded in respect of the defendant's duties towards the plaintiff. It is said that the alleged breaches lie in contract, tort and statute. 6 In relation to the second accident there are issues raised as to whether the defendant maintained and enforced a safe system of work for the plaintiff and whether it took steps to obtain a comprehensive function or capacity assessment of at risk employees, including the plaintiff, prior to requiring him to assist a co-worker to lift the desk in question onto the rear of the utility. More specifically, there is an issue as to whether the defendant took steps to implement and enforce a safety policy for the lifting, carrying, loading or unloading of heavy objects, such as the desk and whether the defendant warned the plaintiff as to the risk of aggravation of his neck, left shoulder and upper back condition in carrying out such an activity. 7 The defendant admits that as at the date of the first accident the plaintiff was employed by it as a mechanical fitter and that as at the date of the second accident he was employed as a maintenance support technician. No admissions are made as to the allegations concerning the
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defendant's duties alleged pursuant to the contract of employment between the plaintiff and defendant, save to admit that such a contract existed. Whilst the defendant denies each of the allegations relevant to the breaches alleged with respect to both the first and second accidents, it also claims that there was an implied term of the contract of employment between the plaintiff and defendant, that the plaintiff would take reasonable care for his own safety in the course of carrying out his employment duties with the defendant and further that he failed to do so by reason of the particulars pleaded in the defence. 8 With respect to the first accident the defendant alleges that the plaintiff was fully trained in the safe performance of the tasks required of him at the time in question and that there was no need for the compressor to be dismantled in the workshop. In addition the plaintiff it is said was aware he could request assistance to carry out the task if he required it. Relevant to the second alleged accident the defendant pleads that the plaintiff was fully trained in safe manual handling techniques and was aware of the need to take care for his safety at the time, due to being on lighter duties. The defendant pleads further or in the alternative that any loss or damage alleged in the statement of claim, all of which is denied, was either caused or contributed to by the plaintiff's negligence and there then follows a recitation of the alleged particulars of contributory negligence. Further, the defendant states that the plaintiff suffered pre-existing neck, shoulder and back problems dating from 1988, unrelated to his employment with the defendant. Relevant to this matter, in the reply it is pleaded on behalf of the plaintiff that if any pre-existing problems of the nature alleged did exist (which is denied) then such problems were asymptomatic until the date of the first accident and did not in any way reduce or interfere with the plaintiff's earning capacity.
The plaintiff's personal circumstances and circumstances of the alleged accident. 9 The plaintiff is now 37 years of age, having been born on 20 November 1965 in France. He migrated to Perth with his family while still a young child in late 1970. As a result the plaintiff was educated in Western Australia and completed year 11 of high school after which he undertook a very brief period of work as a kitchen hand. Between January 1982 and December 1985 the plaintiff undertook and completed an apprenticeship as a mechanical fitter with Alcoa. Once qualified, between January 1986 and November of the following year the plaintiff was employed on a contract basis doing work of this nature with a variety
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of firms. He was then offered a position with the defendant as a mechanical fitter and he took that offer up on 23 November 1987. 10 The following year the plaintiff married his wife, who is a clinical nurse and clinical educator at Sir Charles Gairdner Hospital emergency department. Together they have two daughters, the elder of whom was born in December 1992, and the younger of whom was born in September 1995. 11 The plaintiff's initial evidence was that apart from the two incidents the subject of these proceedings there had only been two other occasions when he had been injured at work or relevant to his employment. The first occurred on 24 February 1989 when having ridden his push bike to work, a distance of some 9 km, he suffered low back pain and reported the incident to his supervisor, Mr Smowton, who drove the plaintiff home. The plaintiff consulted his general practitioner, Dr John Lagan, who certified the plaintiff unfit for work for 2 weeks but the plaintiff returned to work in a shorter period of time on 2 March 1989. The following year, on 25 May 1990, the plaintiff hit his head on a girder at work and attended the Rockingham Emergency Department where he received two sutures. He had no time off work as a result of that incident. He agreed he hurt his back at work in a lifting incident on 21 March 1990 but he could not recall having three days off work for back strain after lifting bricks on 23 August 1988. The final medical certificate for the incident on 21 March 1990 was not issued by Dr Lagan until June 1991. The plaintiff's evidence was that he generally enjoyed good health and was physically fit and active up until the time of the first alleged accident on 3 August 1994. 12 According to the plaintiff's evidence the circumstances of that accident were that he arrived at work at his usual time of 7.40 am and was instructed to investigate an overheating and noise problem in the north high pressure compressor, which was located next to a 10,000 tonne ammonia tank. As I understand it, the compressors on site (of which there were four) were used to take gas from the top of the 10,000 tonne tank which was then put back through the compressor, cooled off and replaced in liquid form into the bottom of the same tank. When work needed to be done on the compressors it was a high priority because that machinery was critical to the operations or part of the operations on the site, for this reason the plaintiff said such work had to be done very quickly. These machines were also worked on in situ for safety reasons.
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13 The plaintiff, in conjunction with a trades assistant Mr Magistro, was instructed to check the cooling jackets and big end bearings on the particular compressor. This involved them going to the compressor site with a range of equipment such as rattle guns, spanners, torsion wrenches, screwdrivers, hammers and rigging gear which consisted of a chain block with multi pulleys. He was also provided with appropriate safety gear including gloves and goggles to do the job. In addition plastigauges were needed to test the gaps in the big end bearings. With reference to a range of photographs, Exhibit P1A-G and P3A-S as well as a two page sketch, Exhibit P4A and B, prepared by the plaintiff of two side views of the compressor, Mr Blondel explained what was required to be done in order to carry out his designated task.
14 Inside the compressor is a crank case man hole the entrance to which the plaintiff estimated to be 60 cm wide by about 30 cm in depth. Inside that area are located eight big ends and each of them have a nut at each end making a total of 16 nuts which the plaintiff had to access from either side or either end in order to remove the nuts to ultimately get to the bearings so they could be checked. The plaintiff and Mr Magistro removed the two jacket covers and four crank case covers as well as some small pipes to gain access to the interior of the machine. It took approximately an hour to do this and during that time, according to the plaintiff, no real problems were encountered by him. Mr Magistro left the compressor about 9.00 am in order to assist someone else. The plaintiff denied that as unskilled labour Mr Magistro was present to do the heavy work. The plaintiff continued working alone on the machine until about 10 o'clock when he had a 15 minute break. He then returned and continued working alone on the machine until 12 noon, when he broke for a half an hour in order to have lunch. He then continued working on the machine until 2 o'clock, at which time the plaintiff reported to Mr Smowton that his neck, shoulders and top of his body were very stiff and somewhat painful. He later said he had pain in the left upper arm at that time. He is right handed dominant. 15 In order to carry out the task he was given, it was necessary at one point for the plaintiff to rotate items on the compressor using a pair of stilsons which are a type of pipe wrench that the plaintiff used to rotate the shaft next to the coupling. The rotation exercise was not difficult and thereafter the plaintiff went back to the crank case and began undoing a big end, at which point he encountered considerable difficulty in removing the nuts which he said were extremely tight.
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16 In order to loosen and remove the nuts the plaintiff had to use a socket bar with an extension pipe and had to apply considerable force to it in order to as he described it "crack the nut". Whilst performing this task on the right hand side of the compressor the plaintiff said that he could access the area in question on his knees in order to remove the caps one at a time. When he'd removed the nut and cap on the right side he then had to remove the ones on the opposite end, being the left hand side and access on that side (the south side) was according to the plaintiff very difficult. He had to adopt a side on posture whereby he rolled on one side to undo the nuts and then back onto his other side in order to tighten them back up. Eventually the plaintiff was able to inspect the bearings visually after removing the cap, and he also used a plastigauge with a specified torque to give him an indication as to whether the bearings were worn at all. He was able to check six of the eight bearings in this way and found that generally they were in fairly good condition and did not need replacing. Exhibit P5 is a sketch prepared by the plaintiff demonstrating what he did with the plastigauge relevant to the cap and con rod. Once again, while the plaintiff was working on the north side of the compressor he was on his knees and access into the crank case was not particularly difficult. Access to the crank case on the south side however was more difficult and at one point he had to brace his head against the compressor to help him remove and do up the nuts.
17 The plaintiff completed his shift at 4.10 pm and drove home, at which point he advised his wife that he had hurt himself and so he took some Panadeine and went to bed. He did not sleep terribly well that night because he was in pain and the next morning he went to work and attended the medical centre there. He saw Dr Lord at that time who prescribed anti-inflammatory medication. As a result the plaintiff said he had no time off work but was on light duties for a week or so and did very little. He then returned to his work as a mechanical fitter but continued to experience relatively regular flare-ups of pain which interfered with his ability to carry out heavy manual work. Consequently he made it known he would prefer a lighter job and that opportunity arose in October 1995 when he was employed by the defendant as a maintenance technician. He agreed in 1990, 1993 and 1995 and again in 1996 he underwent a number of safety training courses with the defendant. Between August 1994 and October 1995 the plaintiff took no sick leave, but said as he was not coping well at work he utilised both his annual leave and some long service leave. Nonetheless he continued to carry out full time duties as a mechanical fitter during that period. According to Exhibit D8, the plaintiff's application dated 27 January 1995 was for annual and long
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service leave. He required that leave to spend time with his wife who was pregnant according to the information on the form. 18 Mr Blondel agreed he was aware at this time he was eligible for unlimited paid sick leave if he had the necessary medical documentation. He explained that he did not want to risk losing his job by taking a lot of sick leave so he thought he would just rest. He did not claim workers' compensation for the incident on 3 August 1994 because Dr Lord informed him it was a simple sprain. 19 As a maintenance technician the plaintiff was engaged in data collecting and inputting data relevant to management and maintenance systems. It would appear that in that capacity the plaintiff coped relatively well, in that he did not require time off for neck or shoulder problems as far as he could recall. In early April 1997, just before the plaintiff was due to travel to Queensland for a family wedding, he said he consulted Dr Lord and advised him of a flare-up of pain in the plaintiff's lower back and neck and shoulder which were of concern to the plaintiff given he was about to travel interstate. The plaintiff had no time off work relevant to this and travelled to Queensland where he said his pain increased to the point that he presented at the Tweeds Head Hospital because his left arm was being severely affected with pain and cramp. He said that although he had experienced tingling in the arm since the 1994 accident the pain had never been immobilising as it was on that occasion in Tweed Heads. 20 On the plaintiff's return to Perth he consulted Dr Lord again and underwent further medical investigations. He did not lose any time at work and said he was informed by Dr Lord that his disc would heal and he had no reason to be concerned about it. On his return to work the plaintiff continued to carry out the duties of a maintenance technician which is the position he held on 15 December 1997 when he said that the second accident the subject of these proceedings occurred. 21 The circumstances surrounding this accident according to the plaintiff's evidence were that at about 9.00 am a work colleague, Mr Frew, asked the plaintiff if he could assist him to move a melamine desk onto the back of a utility. He denied that he volunteered to assist Mr Frew in the task. The plaintiff said he agreed and they each lifted up the desk which he said was very heavy, he estimated it to weigh between 60-70 kilos. They moved it sideways through a door and then carried it about 20 metres to the utility where they placed it on the tray. It was after this the plaintiff said that he began to experience bad pain between his
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shoulder blades, in his shoulder and up his neck. He reported this to a Mr Walker and sought attention from a nurse at the site medical centre. There he had ice packs placed on his neck and was given some medication. 22 According to the plaintiff it was his understanding that it was expected that co-workers would assist one another in the type of tasks that Mr Frew and he carried out. He informed Professor Nedved that Mr Frew told him that the bosses had directed that the plaintiff assist Mr Frew to move the desk and as a consequence he felt intimidated and unable to refuse the request. It was for this reason and because he was advised by Dr Lord that his situation was not critical that he lifted the desk at his co-worker's suggestion. 23 Professor Nedved has a certificate in engineering safety among other qualifications and prepared a report in November 2000 relevant to this matter after visiting the site of the first alleged accident in company with both the plaintiff and a Mr Speed. He had been aware of the type of tools that the plaintiff had been using in working on the compressor and the force that needed to be exerted during that task. He was of the view that the ammonia in the environment corrodes the nuts on the machine and makes them more difficult to remove, hence the need for the use of considerable force to do so. On his view the south west area of the compressor was more congested than the north west side of the machine and said that where a worker is carrying this type of task in a confined space, particularly where significant force needs to be exerted to remove corroded nuts, the worker should take regular breaks and do relaxation exercises involving the shoulders and arms. 24 On the history given to him Professor Nedved did not believe that the plaintiff had been given appropriate instructions and training in the task and believed that Mr Blondel should have been told of the potential for musculoskeletal injury and given simple advice regarding the need to do short relaxation exercises every half hour or so to minimise the potential for injury. I did not understand his evidence to be that one person alone could not do the task although he was of the view that two people doing the task together might render it safer. After two or three hours work on such a task, ideally the worker should move onto other areas of work. 25 Relevant to the alleged second accident the plaintiff informed Professor Nedved that he was lifting a desk weighing between approximately 60 and 70 kg with another person with a view to loading it onto a vehicle. The WA Code of Practice for manual handling according
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to Professor Nedved in effect states that if a healthy uninjured adult is lifting a weight over 16 kg then the accompanying risk should be assessed and certain safety strategies put in place if it is considered necessary. The plaintiff also informed Professor Nedved that he was aware that the task was dangerous but for reasons previously referred to in this judgment did not feel he could refuse to assist. Professor Nedved was unaware that in July 1993 the plaintiff had undergone a safe manual handling course. 26 Dr Ackland, an ergonomist, prepared a report in relation to this matter which became Exhibit D1 at a bene esse hearing on 9 June 2002. In relation to the preparation of the report Dr Ackland received certain documentation including sketches and photographs of the compressor and he also discussed the matter with the plaintiff on 30 November 2001. He explained that with reference to these materials in his view the holding of the awkward postures described relevant to the first alleged accident increased the likelihood of a person suffering a musculoskeletal injury. He describes the circumstances surrounding this alleged incident in some detail in his report. Dr Ackland adopted a similar approach in discussing the accident alleged to have occurred on 15 December 1997. His understanding was that as a result of the incident involving servicing the compressor the plaintiff suffered injuries to his neck, upper back and left shoulder and was subsequently diagnosed as suffering a prolapsed intervertebral disc between C6/7. His opinion was that in the incident on 15 December 1997 the plaintiff aggravated pre-existing injuries to the above areas in his neck, upper back and left shoulder. As Dr Ackland is not a medical practitioner I do not accept that he is qualified to express this last mentioned opinion. 27 His evidence was that there were three possible ways in which an alternative practical method of fixing and servicing the compressor could have occurred. One was to have removed the compressor completely to another site, which I consider other evidence later revealed was not practical. He then suggested it could have been removed and moved away from the obstacles, again this would not appear very practical in the circumstances, or thirdly, an administrative control could be put in place whereby the same worker was not required to work on the machine for the full shift so that the job was shared on an hourly rotational basis. Dr Ackland's understanding from the plaintiff was that the initial undoing of the bolts was extremely difficult and that ergonomically the use of an extension bar on the plaintiff's socket wrench whereby he used near maximum force to undo a number of bolts was problematic because the plaintiff was restricted in his ability to move during the exercise. He
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believed that the breaks that the plaintiff had during that particular day were a reasonable practice. 28 He considered that the problem in relation to the second alleged incident lay in the plaintiff's pre-existing injury and the action described to him would in his view have increased the risk of injuring a neck that was already compromised. Even if a person without a pre-existing injury was lifting an object in excess of 55kg Dr Ackland believed that special manual handling training was needed prior to the task but that where a person was suffering a pre-existing injury then the task simply should not have been performed and that person should in fact avoid manual lifting tasks. According to the conclusions in his report, Dr Ackland believed that the plaintiff relevant to the first alleged injury was exposed to a risk of injury because he was required to work on the compressor using forceful actions whilst adopting awkward positions and holding isometric contractions to support his head and upper limbs for prolonged periods of time. He believed that in the second alleged incident the plaintiff was at risk of injury and that both of those incidents were foreseeable and preventable if alternative systems of work which he considered were practical had been put in place. 29 It was fairly evident from a reading of the transcript that Dr Ackland was highly reliant on information provided to him by and on behalf of the plaintiff as he had not visited the site of either of the alleged accidents. Although he considered that the uncomfortable and awkward positions he was informed the plaintiff adopted whilst tending to the compressor, he believed that the actual strain injury was caused by either doing up or undoing the bolts. He conceded that forceful actions per se using the correct equipment such as the extension handle was not wrong or unsafe, nor was the holding of an awkward position for any particular length of time. He agreed that the most likely type of injury he suffered in those circumstances would be a strain injury or a soft tissue injury. He considered that the amount of force required in such an operation in combination with the awkward postures which might be adopted with the isometric contractions increased the risk of injury beyond an acceptable level. Dr Ackland maintained this position albeit that he conceded he was not a medical practitioner. 30 After the alleged accident on 15 December 1997 the plaintiff said he saw a range of medical practitioners and physiotherapists relevant to treatment for his condition. He did not consult his GP, Dr Lagan, about the incident of 15 December 1997 until February 1998 because it would appear that he attempted to remain at work but finally felt he could not do
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so. It was essentially through Dr Lagan that the plaintiff was referred to a range of specialists for treatment and investigation of his condition. He underwent some rehabilitation but claimed it was not successful and although he tried to return to work in July or August 1998 he said that he was unable to cope and Dr Lagan put him off work once again. 31 Ms Castel was the occupational health nurse at the defendant's medical centre from approximately July 1994 until September 1997. She confirmed that Dr Lord attended the site on Tuesday and Thursday each week and that she was there between 8.00 am and 4.00 pm daily Monday to Friday. It was in that capacity that she had dealings with the plaintiff. Whilst Dr Lord could prescribe Schedule 4 medications such as antibiotics and Panadeine Forte, Ms Castel was able to administer pain relief medication such as Panadol, Disprin and Panadeine to workers. Although initially Ms Castel said there was never a situation where she did not record the prescription of medication to any worker on site, later in cross-examination when she was referred to Exhibit D4 and the entry of 13 May 1997 she confirmed that there was an instruction for her to supply medication to the plaintiff at work if required. She conceded that therefore she was incorrect in saying there was never an occasion when Dr Lord told her to give medication to the plaintiff as and when required. 32 Ms Castel, however, said that it could be the case that she may have given the plaintiff medication at times without entering it into the book but she found that unlikely. This was particularly so as her name was on the poisons permit and as a result she was required to recall when medications were administered. With reference to the first aid treatment registers filled out by her, Ms Castel noted that she dispensed medication to the plaintiff on 9 August 1994 for a work related injury, on 16 November 1994 for sinus, on 15 March 1995 for a sore throat and sinus problems when the plaintiff was given Cepacol and Sudafed and on 1 May 1995 Mr Blondel reported sulphur fume inhalation at work and was treated. On 5 May 1996 he was administered medication for a cold and flu and similarly on 26 July 1996. On 15 October 1996 once again he was given medication for a cold and this happened again on 17 December 1996. On 8 January 1997 he was given two Panadol for a headache and finally on 14 July 1997 the plaintiff complained of a wry neck and was given Panadeine and hot and cold packs. Later in cross-examination Ms Castel admitted that she had overlooked the plaintiff's attendance on 19 March 1996 when she dispensed further medication to him. She made the point that where a worker was injured at work she was particularly careful to ensure that her record keeping of attendances was completed for workers' compensation purposes.
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33 Ms Murphy took over as the occupational health nurse at the defendant's medical centre from Ms Castel in July 1997. She confirmed that the nurses at the station could not administer drugs such as antibiotics but they were allowed to give out over the counter medication for pain relief such as Panadeine and Panadol. She believed that she personally observed the recording requirement when administering such medication but could not recall specifically administering any such medication to the plaintiff, although his name was familiar to her. She could not recall a situation of giving the plaintiff regular medication and not recording it and believed that if she had given pain relief medication to him at times she would have recorded it either in the registration book or in the plaintiff's notes. This medication could be given to the plaintiff without having to seek instructions from Dr Lord. I found both Ms Castel and Ms Murphy to be reliable and credible witnesses.
34 Between February and December 2000 the plaintiff lived with his wife and children in Kununurra where his wife was working. The plaintiff did very little whilst there except for occasionally playing his guitar at social functions. On his return to Perth in January 2001 he began to receive a disability pension and also attempted to engage in some external part-time studies in computational physics at Murdoch University. He was only able to finish one unit of that course before he said his health caused him to withdraw from it. In February of 2000 the plaintiff commenced an internal maths unit at Murdoch University but his evidence was he is somewhat behind in his studies and he does not believe that he will do well in the course. 35 The plaintiff's evidence was that he has not received any workers' compensation weekly payments relevant to either the first or second alleged accident nor has he received statutory allowances or costs of rehabilitation. He did receive some sick pay from the defendant and some moneys from Australian Casualty and Life Insurance. The plaintiff's disability pension has been in the vicinity of $90-$130 per fortnight. 36 After the first alleged accident in August 1994 the plaintiff said he saw his own GP Dr Lagan for other complaints but he could not recall mentioning his neck pain and associated shoulder and back pain to him, because the plaintiff understood from Dr Lord that his injury was a simple one which would resolve itself. Nonetheless, in Dr Lagan's notes of 9 September 1994, Exhibit D2, he noted a complaint from the plaintiff relevant to pain on his right side and in the right side of his neck for which he was given medication. The plaintiff explained that when he has a really bad flare-up the pain affects the whole of his neck and both arms,
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but nonetheless Dr Lagan's notes at that date make no reference to left sided neck pain despite the fact that it was just over a month after the alleged first accident. The plaintiff made no mention to Dr Lagan, at least according to Dr Lagan's notes, of any neck pain again until 1997, although in the intervening period the plaintiff was continuing to consult Dr Lagan relevant to other medical matters. 37 On 5 January 1995 the plaintiff advised Dr Lord that he had a stiff neck, having awoken with it the previous Saturday morning and Dr Lord's notes seem to reveal that the plaintiff advised that he believed that it was a recurrence of an old injury from 1991 (the evidence at trial seems to suggest the date is more probably May 1990) when the plaintiff hit his head on a girder. Mr Blondel said that in fact this information came about because he was asked by Dr Lord if he'd had an accident where he'd hit his head and that is when he volunteered that information. The notes at that point make no mention at all of the incident alleged on 3 August 1994 as being possible cause of neck pain and the plaintiff was unable to say why he did not mention that matter at the time. 38 The plaintiff maintained that the only reason he sought alternative employment with the defendant was because he no longer had the ability to carry out heavy manual work after the incident of 3 August 1994. The situation as the evidence unfolded was however that the plaintiff had sought alternative employment with the defendant prior to that date. Exhibit D9 is a job application with annexures, dated 15 June 1994 where the plaintiff applied for a job as a planner with the defendant. He was interviewed two weeks after the first alleged accident but failed to get the job. Whilst the plaintiff was on leave in January 1995 he applied to have a business name registered for Regal Maid Domestic Services which was to be engaged in both internal and external cleaning of houses and buildings. The plaintiff said he personally was not going to be engaged in doing the cleaning but he had a number of cleaners at his disposal who would give quotes and then carry out the work. The role of the plaintiff and his wife was going to be that of managers, but it would not seem that this business came to very much and further the plaintiff did not seem to be able to explain clearly why external cleaning of houses and buildings was going to be involved or who was going to carry out that particular work which in my view is somewhat unsatisfactory. It is curious and makes little sense in my view that if the plaintiff was in considerable pain as he claims and as a result had to take leave from work, that he would engage in attempting to set up a business venture of this nature. In July 1996 the plaintiff applied for yet another position of a supervisory nature with the defendant but was unsuccessful. About the same time he applied
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for yet another position as a team leader (compounds) but once more was not successful in obtaining that position. 39 On 7 January 1997 the plaintiff said that his neck pain was so bad that he consulted Dr Lagan who ordered x-rays and prescribed Voltaren. The plaintiff's understanding was that the x-rays were normal. Three months later on about 8 April 1997, just prior to going to Queenlsand, the plaintiff said he had both neck and back pain that was so problematic he consulted Dr Lord. At that time he said he had pain in is left upper arm but that would not be recorded in Dr Lord's notes of that date although due to radiating pain in the plaintiff's leg and feet he was referred to the chiropractor Mr Martinovic. There is no mention in Mr Martinovic's documentation relevant to the plaintiff's two visits to him, Exhibit D13, of any complaints by the plaintiff regarding his neck. 40 As has previously been mentioned when the plaintiff was in Queensland he said that he experienced such an increase in pain, particularly in his left arm with associated power loss, that he was driven to seek help at the Tweeds Head Hospital. Those notes record a long history of wry neck for the past ten years, tenderness in the paravertebral muscles bilaterally from the cervical spine region and restricted range of neck movement. The notes further add that the patient was suffering from a stiff neck and has had previous episodes of the same apparently as a result of a work accident approximately 10 years ago. That is confirmed in a letter from the hospital, Exhibit D14(b) of 9 December 1998. The plaintiff denied telling staff at the hospital that he'd had the problem for ten years and could not explain how the note came to be made. His evidence was that the reference to the wry neck was made because that is what Dr Lord had told him. This was in distinct contradiction to Dr Lord's evidence on that point. The hospital notes make absolutely no reference to pain in the plaintiff's arms or loss of power in the left arm despite the fact that the plaintiff said this was a debilitating symptom at the time. Whilst in Queensland on holiday the plaintiff shared the driving of his vehicle with his wife and another person and visited a number of beaches but did not go swimming or surfing. He also visited a number of tourist and entertainment venues such as "Dream World" but did not go on any particularly strenuous rides whilst there. 41 The plaintiff took issue with the contents of some of Dr Lord's notes regarding his consultations with him. As to the note of 6 May 1997 the plaintiff denied telling Dr Lord that his neck flared up one night but claimed that in fact he had been in pain for the whole duration of his holiday. On 13 May 1997 Dr Lord made a note that on occasion the
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plaintiff felt such pain that he could not continue to work. He noted that the plaintiff felt strongly that his cervical disc lesion related to an injury some years ago when the plaintiff hit his head on the carport and had to have sutures to a laceration. He further noted that the plaintiff maintained that his neck had been bad for years with repeated episodes of wry neck. A CT scan showed a moderately large C6-7 lesion indenting the left and compressing the left C7-8. Dr Lord noted that he explained that although the plaintiff's injury in 1991 (which again would seem to be a reference to May 1990) could have left a residual problem in the plaintiff's neck, the current lesion looked to be more recent, particularly when given the pattern of the plaintiff's symptoms. The doctor further noted that he explained to the plaintiff that he thought that a direct relationship between that event in 1990 and the plaintiff's current neck problems was unlikely. 42 Mr Blondel denied that he told Dr Lord he felt his cervical disc lesion related to striking his head on a girder some years earlier and claimed it was Dr Lord who expressed this view to the plaintiff. This aspect of the plaintiff's evidence makes no sense at all when one considers what Dr Lord wrote regarding his explanation to the plaintiff that he thought it was unlikely there was any nexus between the two. Again on that date the plaintiff made no mention, it would seem according to the notes, of his belief that the incident on 3 August 1994 played a role in his condition. Thereafter, the plaintiff did not consult Dr Lord regarding his neck although he did attend the surgery again in September for two unrelated matters. He also consulted his general practitioner, Dr Lagan, in September 1997 regarding a cold but made no mention of neck pain to Dr Lagan at that time even though he had previously mentioned the problem to Dr Lagan on 7 January 1997 when x-rays were ordered. 43 As previously mentioned after the second alleged incident on 15 December 1997 the plaintiff did not consult a medical practitioner about his difficulties until February 1998 when he saw Dr Lagan, because according to him the pain had grown considerably worse. This is despite the fact that according to his evidence his neck pain had reached a stage in December 1997 that he was unable to cope with work and had to take leave between 22 December that year and 9 January the following year. He was not able to clearly or satisfactorily explain why on 19 December 1997 he attended Dr Lagan's rooms and asked for his medical records to be returned or given to him. It would appear that he was not able to get possession of them at that time because his recollection was that he owed the medical service money. As I understood the plaintiff's evidence he seemed to want the notes for his own medical records, although once again on his evidence it was somewhat unclear as to what precisely he
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intended to do with the materials. Finally, in February 1998 by letter, Exhibit D21, the plaintiff instructed Dr Lord not to provide anyone with any information about the plaintiff or his medical condition. 44 On 3 January 1998, despite his alleged ongoing pain state, the plaintiff applied for yet another position within the defendant but was advised on 11 February 1998 that his application had not been successful. He said it was sheer coincidence that the following day on 12 February 1998 he attended Dr Lagan's rooms complaining of neck pain. That was the first recording by Dr Lagan that the alleged incident of 3 August 1994 was associated with or connected to the plaintiff's neck pain. The plaintiff agreed he collected copies of Dr Lord's medical notes regarding the plaintiff's attendances upon him, in September or October of 1997 because it was his right to do so and he simply wanted to obtain information about himself and his medical situation. This was before he took legal advice regarding his position, which apparently occurred in about February of 1998. 45 After the consultation with Dr Lagan on 12 February 1998 the plaintiff was referred to a range of doctors including Mr Vaughan and Dr Goodhart as well as a psychiatrist and he had approximately three months off work. He began a graduated return to work programme in May of that year but it was not successful due to his complaints of neck and back pain and he ceased that trial in August of 1998 after which time he has not worked. He was however on full salary continuance payments between August of 1998 until December 2001. That included the period that he was resident in Kununurra with his wife. 46 The plaintiff gave a considerable amount of evidence concerning his financial circumstances and said that since ceasing work his only source of income had been the salary payments and some partial sickness benefit payments. It is common ground that the plaintiff's wife also works on a part time roster basis of 64 hours per fortnight. Later the plaintiff agreed that as he now currently rents premises in Shenton Park, the family home in Wellard is rented out for approximately $185 per week. Over time the plaintiff has had a number of bank accounts including an account with BankWest, a joint account with his wife at the National Australia Bank as well as an account in his own name with that bank. He had an account with the Commonwealth Bank relevant to the company he registered earlier but that is now defunct. In addition, the plaintiff and his wife have two cheque accounts with the St George Bank and he has accounts relevant to an American Express card and a National Australia Bank Gold Visa Card Account. The plaintiff was asked about a number of deposits
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of relatively large amounts of moneys into some of those accounts in the years 1999, 2001 and 2002 but was unable to recall the source of those funds, although he pointed out that he was hiding nothing and such funds were quite legitimate in the sense that he had disclosed all his known sources of income. 47 Towards the end of the plaintiff's re-examination he gave evidence that he had received $16,000 (before tax) as a result of a superannuation payment. His superannuation fund of approximately $52,542.37 had been paid into an ING account. His evidence on this point was quite unsure and unsatisfactory even though he was further questioned on the issue when the hearing resumed some months later. There were further deposits of funds into the plaintiff's accounts that he was very unclear about, for example, he could not say what a deposit on 15 January 1999 of $58,577.22 was for save that it may be from something he and his wife sold. On 9 May 2001 a cash deposit of $5,196.76 was made into one of the plaintiff's accounts but he said he did not know what it related to, perhaps it may have been part of his termination payment when he ceased being paid by the defendant. 48 The plaintiff asserts that currently he can do little in the way of work. He said in August 2001 he had what he termed a breakdown causing him to have thoughts of suicide. He believes that if he had not experienced the incident in August 1994 he would now be a supervisor in one of the defendant's plants. Now however he believes that he could not work an eight hour day and certainly could not undertake his pre-accident employment as a mechanical fitter or any other form of physically demanding work. Further, he does not believe that a sedentary position would cater for his problems, as he is still experiencing what he termed a flare-ups and loss of concentration. Currently, he says he suffers pain between the shoulder blades radiating into the back of the head with accompanying headaches and immobility in the left shoulder. He experiences restriction in his ability to move his left arm and he occasionally has pain in the right shoulder and right arm as well as the lower back area. His left leg is continually painful and occasionally his right leg is also painful. These symptoms he said have persisted from the time of the first alleged accident but worsened after the second alleged accident. He is never pain free. 49 Moreover, he maintains that while his depression is constant he needs to go out frequently to coffee shops, restaurants and other outings to speak and interact with people. His wife prompts him to socialise in this manner and he is further assisted by maintaining medication which the
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plaintiff says comprises in the region of 13 tablets per day. He regularly attends his course at Murdoch University for up to four hours per week. 50 The plaintiff agreed that the defendant was anxious for him to return to work after the second alleged accident and to that end a rehabilitation consultant was involved. Mr Blondel admitted relevant to Exhibit D24 that the defendant offered to alter his job with them to make it even lighter in nature so that he was not obliged to engage in any climbing or manual handling at all. Further, they offered to carry out a full ergonomic review of the plaintiff's work station to ensure that it addressed his specific physical needs and did not put him at risk of further injury. 51 The plaintiff informed the Court that in effect his presentation in court was indicative of his physical situation at its best. Relevant to this the plaintiff was shown a number of videos taken over a period of time. The first taken on 31 May 1998, some 4 years prior to trial, shows the plaintiff driving a motor vehicle and moving relatively freely without any apparent stiffness. He tilts his head back to drink from a cup or soft drink can and appears to bend easily in order to get in and out of the car on several occasions. At one point he appears to stretch out fairly easily in order to close the driver's car door. Subsequently he appears to open the boot easily and lifts out a bag from which he proceeds to take what appears to be bread and throw it to bird life in an area adjacent to his home. He repeatedly makes full and free actions with his right arm and turns his head to look about without any apparent restriction. Generally he appears from the film at that time to exhibit no discernible restriction in his arms, neck or upper back or leg movements. The contrast between the plaintiff's presentation on all the video film tendered into evidence and his sworn testimony as well as the history he gave to a number of medical practitioners about his condition and alleged ongoing pain state and disability was so great as to reflect negatively on the plaintiff's reliability and credibility as a witness. 52 A further 11 minute video film, Exhibit D26, was taken of the plaintiff on 6 September 2000 when he lived in Kununurra. He is seen at various times in company with his two children and once again at that stage he appeared to move about extremely freely. At one point he is walking along a street carrying what appears to be a bundle of papers or a paper in the crook of his left arm with no apparent difficulty. His movements on the video do not demonstrate any particular stiffness or restriction of movement in any part of his body. He appears to get into the driver's seat of a 4-wheel drive vehicle and close the driver's door, again without any apparent restriction of physical problem. The plaintiff
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was also shown the video film of 10 May 2001 of him in company with his wife at a school concert, about which Dr Booth commented in his evidence. 53 In the two month period before the plaintiff was referred to Dr Booth in August 2001, having suffered what the plaintiff termed or described as a breakdown, he agreed that he had been going out and socialising. In mid July 2000, according to some of his credit card statements, he attended a restaurant in Subiaco and the next day he would appear to have travelled to Busselton and dined at a hotel there. He said during that period he was having a week's holiday in the Bunbury/Busselton area but it was an unpleasant experience which he did not enjoy. It is therefore somewhat curious he did not cut short the break and return home. 54 The plaintiff agreed that while living in Kununurra he and his wife drove to Broome, relevant to his wife's work, sharing the driving. They also drove to visit Katherine in the Northern Territory. 55 The evidence of the plaintiff's wife was to the effect that before 3 August 1994 the plaintiff was in good health and following an active lifestyle which included cycling and walking as well as family outings. She said that her husband was quite domesticated and did all of the maintenance on the home they built and moved into shortly after their marriage. The plaintiff had an interest in music and carried about musical equipment at times. 56 Mrs Blondel said since 3 August 1994 the plaintiff's health and pain state has been an ongoing issue. As a result she says that she had to take on additional responsibility within the household, particularly when the plaintiff suffered acute flare-ups of his condition which caused him to become somewhat withdrawn and anti-social. He was unable to continue to do maintenance work on the new home they built and moved into in Wellard. Although the plaintiff returned to work after that incident Mrs Blondel claimed he did not regain his confidence to do most things and after the incident on 15 December 1997 she noted that the plaintiff's flare-ups became more regular. This continued until January 1998 when she noted the plaintiff suffering mood swings and irritability with associated impatience and some vagueness. Her husband's graduated return to work commencing in May 1998 was not successful with the result that in January 2001 he was granted a disability pension. 57 Mrs Blondel claimed that the incident where the plaintiff injured his back in 1989 riding a pushbike was somewhat minor as was the incident
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on 25 May 1990 when he lacerated his forehead after hitting it on a girder. Her recollection was that after the incident on 3 August 1994 the plaintiff was diagnosed with a wry neck which did not settle over time. Although he undertook lighter duties at work after the incident in August 1994 Mrs Blondel claimed the plaintiff still remained in pain. She agreed the family went to Queensland in April 1997 on holiday and that she, her husband and a friend shared the driving on that break. Although the plaintiff suffered a flare-up, as she described it, in his neck pain prior to leaving Perth, she understood it was acceptable for him to travel after consulting with Dr Lord. Mrs Blondel agreed that the plaintiff suffered neck symptoms prior to August 1994 but claimed they were of a different nature and quite minor lasting only for a short time. She insisted that prior to the trip in Queensland the plaintiff was suffering pain radiating into his left arm which concerned her as she believed it may be indicative of nerve involvement. This assertion is not reflected in any way in the notes of Dr Lord of 8 April 1997 or the notes from the hospital at Tweed Heads. She maintained this position despite the fact that there was absolutely no mention of any pain or symptoms in the plaintiff's left arm in the notes of Dr Lord relevant to the plaintiff's consultation with him shortly prior to the plaintiff leaving to travel to Queensland. 58 Currently Mrs Blondel says her husband carries out only a few domestic tasks at home such as the dishes and these are done slowly. She estimates she spends about four hours a week doing domestic tasks that the plaintiff formerly would have undertaken. Since the plaintiff ceased work Mrs Blondel said the family lifestyle was far less comfortable due to both a reduction in their income and the plaintiff's physical and emotional state. She agreed that the plaintiff still maintains some interest in music in that he has written a song, recorded a CD and entered an American song competition while the family lived in Kununurra. He does the family banking on the internet and uses the computer to assist him with assignments for his studies. The plaintiff, she said, still plays the guitar but on a more limited basis than previously and he plays the piano for perhaps about an hour per week. Mrs Blondel agreed that the family still take holidays from time to time and since February 1998 they have visited York and Dunsborough for this purpose. She accepted that the family which includes herself and her husband still have a social life in that she and the plaintiff go out for coffee and restaurants when time and their finances permit. She attempts to encourage the plaintiff to participate in these social and recreational outings.
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The medical evidence
59 There was a considerable amount of medical evidence called on behalf of both the plaintiff and defendant in this matter. In some instances witnesses appeared before the Court and spoke to their various medical reports and opinions and in other instances reports were tendered by consent as between the parties. A range of medical practitioners were called to give evidence including psychiatrists, a neurologist, an orthopaedic surgeon, neurosurgeons, occupational physicians, Dr Lagan the plaintiff's general practitioner at the time as well as Dr Lord who saw the plaintiff on a number of occasions at the defendant's premises where Dr Lord worked on a part time basis as the company doctor. 60 Reference has already been made to Dr Lord's evidence but it is necessary to refer to it further in a number of respects. Having seen and heard Dr Lord give evidence I am of the view that he was in no way biased or unreliable in that evidence, albeit that he was the medical practitioner who from time to time was available for consultation at the defendant's nursing post by injured workers. I do not accept any suggestion that Dr Lord in that role had a conflict of interest which would impact negatively on his assessment and treatment of the plaintiff or on the evidence he gave relevant to the plaintiff in these proceedings. His note taking in my view was comparatively meticulous and helpful in that he assessed patients both with reference to subjective and objective complaints and observations. He initially saw the plaintiff on 16 June 1992 when he complained of neck pain which had developed approximately two weeks earlier and at that stage he referred the plaintiff for further treatment including physiotherapy and massage. 61 He again saw the plaintiff on 4 August 1994, the day after the first alleged accident, when the plaintiff was complaining of neck and shoulder pain which had grown worse in the last 24 hours. The doctor noted tenderness in those areas but interestingly, also noted that the plaintiff had a fairly full range of neck movement at the time. There was no mention of lumbar muscle pain at that stage. Consequently, Dr Lord made a diagnosis of a simple sprain relating to the shoulder girdle muscles which did not particularly involve the neck beyond perhaps a component of soft tissue injury. He was adamant in his evidence that his observations at that time and the operation of the relevant pathology as he understood it was not such that at that stage he was seeing the beginning of a large C6-7 disc lesion. I accept Dr Lord's evidence as to the context in which he explained to the plaintiff that he had suffered a strain injury that would
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probably heal in time. I also consider his reasons for doing so to be entirely appropriate in the circumstances. 62 In his report of 31 March 1998 Dr Lord confirms this diagnosis when he said that in his view it was a simple strain of the left shoulder, perhaps involving the soft tissues of the neck, which condition did not require treatment beyond the first consultation. He noted that the incident followed some years of intermittent neck problems which the plaintiff himself dated back to an incident involving hitting his head on a carport in 1991. In that report Dr Lord concluded that the plaintiff had a serious C6-7 disc lesion which presented with the onset of neck pain one night in April 1997 whilst the plaintiff was in Queensland. The onset was acute with associated loss of power in the left hand and parasthesia in the left fifth finger. Prior to that time as far as Dr Lord was aware the plaintiff had not presented with symptoms to suggest an acute C6-7 disc lesion, and for that reason he was unable to relate that condition to the injury in August 1994 which he considered to be relatively minor. Again as far as Dr Lord was aware there had been no presentation of ongoing symptoms to suggest a C6-7 disc lesion in the intervening years. The onset of the definitive symptoms in April 1997 was rapid and consistent with the radiological findings on CT scan. 63 The plaintiff did consult Dr Lord on 5 January 1995 complaining of a stiff neck and at that point Dr Lord considered there was some degeneration at C4-5 with associated spasm. When the plaintiff consulted Dr Lord just prior to his visit to Queensland on 8 April 1997 he complained of a low back problem of three weeks duration and at that point Dr Lord noted that the plaintiff's neck and thoracic spine were not particularly troubling him. The plaintiff complained at that consultation of some weakness in his left leg and some loss of sensation in his left outer thigh with sharp pains radiating down to the posterior and left and right feet at times. This caused Dr Lord to query the possibility of sciatica. The plaintiff's lumbar spine at that point was stiff which suggested a lumbar disc disorder with radiculopathy. 64 Upon the plaintiff's return to Western Australia he consulted Dr Lord on 6 May 1997 regarding his neck problems, although at that stage the pain in his back had settled. Dr Lord took a history that whilst the plaintiff was away in Queensland one evening his neck flared up and he experienced loss of power in his left hand with severe pain radiating into his left arm and associated tingling in his left little finger. Dr Lord was aware that medical staff at the Tweeds Head Hospital in Queensland had diagnosed the plaintiff as suffering with a wry neck. In his view this is a
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specific simple muscular condition which Dr Lord would term torticollis rather than a wry neck. However he was surprised that hospital staff would have diagnosed it or termed it a wry neck if radiculopathy was present and there was a nerve root lesion. When Dr Lord reviewed the plaintiff a week later on 13 May he noted improvement in his condition although the plaintiff was still complaining of a pain state affecting his ability to work. At that consultation the plaintiff stressed that he felt strongly that his cervical disc lesion related to the event when he had struck his head on a girder many years earlier in 1991, and he further maintained that his neck had been bad for years with repeated episodes with what was termed "wry neck". I accept Dr Lord's evidence that he was in disagreement with the plaintiff's view because he felt that the lesion was much more recent in origin, especially given the pattern of symptoms explained to him by the plaintiff. I also accept Dr Lord's evidence that the plaintiff was uncomfortable with Dr Lord's views regarding the origin of the injury and for that reason this was the last occasion upon which the plaintiff consulted Dr Lord regarding his neck problems, although he did see him for an unrelated complaint in September 1997. In my view Dr Lord was in a unique position among all the medical practitioners in the sense that he saw the plaintiff immediately after the alleged accident in August 1994 and on a number of occasions after that relevant to the neck in 1995 and 1997. Unlike many other doctors involved in this matter, Dr Lord was able to assess the plaintiff relevant to an objective observation of his symptoms and was therefore not almost totally reliant on the history provided by the plaintiff some time after the incident. 65 Dr Douglas, a clinical psychologist, prepared two reports, Exhibit P16(a) and (b) which were tendered by consent. He saw the plaintiff in early 1998 and took a history from him and on that basis diagnosed Mr Blondel as suffering from a form of reactive depression to his situation, but discounted an underlying a psychological disorder such as depressive illness or anxiety state. In early May 1998 when he saw Mr Blondel Dr Douglas was of the view that he seemed to be coping quite well with his pain state and looking forward to a return to work on a graduated work programme. For that reason Dr Douglas has had no further contact with the plaintiff. Dr Salmon, a pain specialist, also saw the plaintiff and his reports Exhibit P17(a), (b) and (c) were tendered by consent. He first saw the plaintiff in May 1998 and took a history from him and then carried out a physical examination of the plaintiff. His view was that the plaintiff's neck, scapular region and arm pain were most likely due to a left C7-8 neuro irritability relating to the left C6-7 disc
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protrusion as demonstrated on the CT and MRI studies. He believed his psychological state was reasonably stable but his functional state was significantly restricted at the time. He recommended specialised exercise and activity management and perhaps some injections to address the pain. He felt that with proper management and the passage of time the plaintiff could return to his clerical occupation though not his work as a mechanical fitter. As I understand the evidence lighter employment with the defendant was open to the plaintiff at that time. Dr Salmon next saw the plaintiff in October 1998 and in effect he noted no particular improvement. The plaintiff was not enthusiastic about injections to address his pain state but agreed to take Epilim on trial relevant to his neurogenic pain. The following month on review there had been little change in the plaintiff's situation as far as Dr Salmon was concerned. The plaintiff was not receptive at that point regarding a trial of spinal cord stimulation or pain injection procedures. In the light of this Dr Salmon believed that an appropriate exercise and stretching programme should be continued. 66 Mr Wayne Thomas, a neurosurgeon reviewed the plaintiff on 11 October 2001 and again on 23 May 2002. On that second occasion he obtained a history that the pain in the plaintiff's left shoulder had grown worse since the first consultation. As it was some considerable time since 3 August 1994, Mr Thomas was very reliant on the history recited to him by the plaintiff as well as other information with which he was provided. He could not be dogmatic or even clear about the original cause of the plaintiff's complaints of ongoing symptoms. He did however feel that surgical intervention was not warranted but believed the condition could be managed by prescription medication and possible physiotherapy. On examination the plaintiff demonstrated that his movements in most directions were restricted and on that basis Mr Thomas assessed his level of disability of the cervical spine at 20 per cent. This took into account the disc protrusion noted at C6-7, although Mr Thomas did not say when in his view that could have occurred. He considered the person who saw the plaintiff at the time was in a better position to make a diagnosis as to what had occurred. He believed that the development of the problem since about May 1997 suggested the onset of the disc protrusion at that time rather than on 3 August 1994, particularly as May 1997 was the first occasion upon which symptoms in the left arm and hand were noted. These are particularly indicative, he said, of a C6-7 problem and on this occasion he understood that there had been a traumatic onset of symptoms relevant to pain and loss of power in that limb.
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67 He ventured the view that the incident in August 1994 could have had an impact on the C4-5 level or that hitting one's head on a girder could also lead to degeneration in that area or even result in an injury to a disc in the neck. He believed that the second incident alleged on 15 December 1997 was an aggravation of the pre-existing cervical disorder suffered by the plaintiff. He did however say that if the plaintiff had continued to work thereafter, save for a few weeks annual leave, before finally reporting the incident on 12 February 1998 it would suggest that the symptoms following that event were not as severe as had been suggested to him. That second incident could have been another injury but he was inclined of the view that it was more likely an aggravation of a pre-existing disorder. He could not discount the possibility that if it had been an aggravation then it would or could have resolved itself within a matter of days.
68 The plaintiff also consulted another neurosurgeon, Mr Vaughan, who prepared a number of reports relevant to his examinations of Mr Blondel. The material provided to him confirmed a left posterior lateral disc protrusion at C6-7 with impingement on the left C7 nerve root and degenerative change disc disease at C4-5. This was with reference to a report from Dr Nash and Dr Kaard, Radiologists. Between early March 1998 and 21 May 2001 the plaintiff's main complaints to Mr Vaughan related to left arm and cervical pain, although other areas also troubled the plaintiff. Mr Vaughan formed the view that operative intervention was not indicated because there was no certainty that it would relieve the symptoms of which the plaintiff complained. Relevant to causation, the witness said that any event, be it heavy lifting or twisting or a combination of unusual positions maintained for a long period of time or even sneezing or coughing can be productive of a disc protrusion. Having taken a history from the plaintiff regarding his symptoms and their development over time Mr Vaughan considered that the plaintiff's present functional disability commenced in 1994, was aggravated by the travel during the trip to Queensland in 1997 and worsened after the alleged second incident on 15 December 1997. His assessment of the disability of the cervical spine was placed at 20 per cent. As I understood Mr Vaughan's evidence he felt at something of a disadvantage in that he did not see and examine the plaintiff at the time of the alleged incident on 3 August 1994. Having been referred to Dr Lord's notes of that time Mr Vaughan said he would regard what Dr Lord said at that time as being very important because Dr Lord was a good reporter of condition. He agreed that Dr Lord's notes of August 1994 indicated a problem at C4-5 level.
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69 Mr Vaughan had some uncertainty as to the plaintiff's long term prognosis and his ability to cope in the work force, given his description of his pain state and his psychiatric problems. He could not see the plaintiff returning to work as a fitter and believed there may be some problems with him carrying out lighter work because of his emotional state. He could not say with any certainty as to how often, if at all in the future, the plaintiff would require follow-up by a neurologist or neurosurgeon or indeed how much future medication would be required by the plaintiff.
70 Mr Vaughan's understanding from the history and material before him was that the onset of pain whilst the plaintiff was in Queensland was sudden, severe and exasperating and worse than on 3 August 1994. This pain he thought was an exacerbation of a pre-existing state and it was possible at that time that the disc actually extruded. On the basis of Dr Lord's notes however, Mr Vaughan considered that the problem with the disc at C6-7 arose subsequently to the incident in August 1994. He agreed that if somebody banged their head on a girder it could cause trauma to the cervical spine which over time manifested itself by way of degenerative changes which could become symptomatic by way of an event as simple as a sneeze. On Mr Vaughan's understanding from the materials before him there was no complaint by the plaintiff of any left arm symptoms by way of loss of power or tingling until his return from Queensland. Those symptoms in combination with severe pain in the limb are classic symptoms of a disc problem at C6-7. 71 On his final review of the plaintiff Mr Vaughan was of the view that he moved more freely and while still complaining of pain, seemed to be coping somewhat better than previously. He considered in the light of this that if the plaintiff was able to find purely sedentary employment with no climbing, vibration forces or unusual twisting motions he could carry out such a job on a full time basis from a physical perspective. 72 Mr Vaughan did not exclude an incident on 3 August 1994 as being the cause of the problem at C6-7, but noted on the history that at that time the plaintiff was not without pathology in his neck and there had been an incident when he had struck his head in May 1990. He understood that the problem, whatever it was, was severely exacerbated in Queensland in 1997. He couldn't rule out that the plaintiff did not have a tear at C6-7 when he presented to Dr Lord initially, but nonetheless he still viewed the event in Queensland as being somewhat different because of the development of the very obvious radicula pathic pain. This was at odds with the initial history to Dr Vaughan that the plaintiff believed he had
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experienced left arm pain from the incident in August 1994. Dr Lord's observations were consistent with a disc abnormality but not with radiculopathy. 73 Ultimately on the history and information available to him, Mr Vaughan proffered the view that the incident in August 1994 caused either the problem at C6-7 to commence or exacerbated the pre-existing problem at that level which had been caused by something else which had settled down in the interim. He believed that in 1997 some incident, although he could not isolate what it was, actually caused the disc to break down. 74 Dr Adele Thomas became the plaintiff's general practitioner in May 2001 and she reviews him approximately monthly at which times she generally prescribes some form of medication. She believes that the plaintiff has reduced his pain medication over the period of time he has been consulting her and now takes it more for flare-ups than on a consistent basis. Her view was that the plaintiff will continue to require Doxapin and Lithium on prescription in the future and this is also the case for Tramal and Panadeine Forte. In the end she could not say how often the plaintiff would need to consult his general practitioner for the necessary prescriptions but it could be as infrequently as twice a year.
Evidence as to the plaintiff's psychiatric condition 75 Dr Booth is the plaintiff's treating psychiatrist and he has seen the plaintiff on numerous occasions commencing in August 2001 to immediately before the date of this trial. Relevant to these consultations he prepared a report dated 7 March 2002, Exhibit P6. His diagnosis is that the plaintiff suffers from chronic pain syndrome and a major depressive disorder which is also categorised as chronic. His view, which he said is an observed fact, is that psychiatric disorders, in particular depressive disorders, are more common in persons who already have a pre-existing physical disorder. His diagnosis was made on the history given to him in combination with the presentation of the patient. The plaintiff advised Dr Booth that he felt useless, tearful and had negative thoughts to the point where he was quasi suicidal. As a result, Dr Booth prescribed comparatively large doses of Doxepin, a sedative anti-depressant, in combination with lithium carbonate to enhance its effect. He concluded that Mr Blondel will continue to require such medication and psychiatric treatment for some time to come in the future and in that sense his prognosis was guarded. He further concluded that the plaintiff's current psychiatric condition as diagnosed by him was
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caused by the injury the plaintiff sustained in the accident of 3 August 1994. 76 Dr Booth conceded that he relied heavily on the plaintiff's complaints of intractable pain and suffering and he further conceded that there was disagreement among the medical practitioners concerned as to the precise cause of the plaintiff's symptoms. 77 As to the issue of causation, Dr Booth's evidence was that if the plaintiff didn't experience ongoing symptoms of pain in his neck and shoulder in the months preceding the first alleged accident, or if such symptoms were only intermittent, and further if he experienced insomnia prior to that first alleged accident, he may have to reconsider the question of causation. Dr Booth's understanding of the plaintiff's current situation is that he does very little by way of leisure activity and his social life is considerably restricted. At that point in his evidence Dr Booth was shown a video film of approximately 12 minutes duration depicting the plaintiff, and it would appear his wife, at an outdoor function which as I understood it was some type of concert or assembly. The film was taken approximately three months before a consultation with Dr Booth on 10 May 2001 and he agreed in the film that the plaintiff appeared more animated and less stiff in his movements than when he attended Dr Booth's rooms. As against that Dr Booth said that suffering a depressive disorder does not totally preclude externally normal behaviour and people suffering such a disorder can in effect learn to put on a brave face and smile. For that reason he would not discount his diagnosis. |