Boothman v George

[2024] WADC 26

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   BOOTHMAN -v- GEORGE [2024] WADC 26

CORAM:   PALMER DCJ

HEARD:   2-13 OCTOBER 2023, DEFENDANT'S SUBMISSIONS FILED ON 22 OCTOBER 2023 & PLAINTIFF'S SUBMISSIONS FILED ON 6 NOVEMBER 2023

DELIVERED          :   30 APRIL 2024

FILE NO/S:   CIV 3518 of 2020

BETWEEN:   RONAN DAVID BOOTHMAN

Plaintiff

AND

CHRISTOPHER MAGER GEORGE

Defendant

Catchwords:

Medical negligence - Treatment provided by chiropractor - Breach of duty - Causation - Damages - Turns on own facts

Legislation:

Civil Liability Act 2002 (WA), s 5B, s 5C

Result:

Judgment for the plaintiff against the defendant
Damages assessed

Representation:

Counsel:

Plaintiff	:	Mr P E Jarman
Defendant	:	Ms F A Stanton

Solicitors:

Plaintiff	:	Bradley Bayly Legal (Perth)
Defendant	:	Clyde & Co (Perth)

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

Allied Pumps Pty Ltd v Hooker [2020] WASCA 72

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

CGU Insurance Ltd v Coote (by his Next Friend Stephen Desmond Coote) [2018] WASCA 117

Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588

Ellis v East Metropolitan Health Service [2018] WADC 36

Nathaniel Corbett by his Next Friend Debra Todd v Town of Port Hedland [2021] WADC 55

Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479

Veitch v Connor [2023] WADC 38

Watson v Foxman (1995) 49 NSWLR 315

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

Table of Contents

I.     Introduction and factual background

A.      Introduction

B.      The uncontroversial factual background

1.       Mr Boothman

2.       Dr George

3.       Back pain in 2008

4.       Back pain in 2011/2012

5.       Back pain and surgery in 2016

6.       Mr Boothman's back between 2016 and 2018

7.       Mr Boothman injures his back and starts seeing Dr George

8.       Mr Boothman's initial consultation with Dr George on 5 January 2019

9.       Mr Boothman sees Dr George on 12 January 2019

10.     Mr Boothman sees Dr George on 19 January 2019

11.     Mr Boothman sees Dr George on 23 January 2019

12.     Mr Boothman sees Dr George on 9 February 2019

13.     Mr Boothman sees Dr George on 7 March 2019

14.     Mr Boothman sees Dr George on 27 April 2019

15.     Mr Boothman strains his back surfing in early May

16.     After Mr Boothman left the Doubleview Chiropractic Clinic

17.     19 May 2019

18.     20 May 2019

19.     21 May 2019

20.     22 to 24 May 2019

21.     24 May 2019

22.     25 May 2019

C.      The witnesses

1.       Dr Mark Lam

2.       Dr Peter Silbert

3.       Dr Peter Watson

4.       Dr Bruce Watts

5.       Dr Greg Finch

6.       Dr Carlo Rinaudo

7.       Mrs Fiona George

II.     The treatment Dr George gave Mr Boothman on 18 May 2019

A.      The evidence given by Mr Boothman and Dr George and Dr George's notes

1.       The extent of Mr Boothman's and Dr George's recollection

2.       The fallibility of human memory

3.       The reliability of Dr George's consultation notes

4.       The limitations of Dr George's notes

5.       The consistency between Dr George's evidence and his notes

6.       Whether Mr Boothman's evidence was inconsistent with his prior statements

7.       Mr Boothman's criticisms of Dr George's evidence

B.      The history taken

1.       Dr George's and Mr Boothman's evidence

2.       Whether a history of the exact movement was taken

3.       When the pop was discussed

C.      The initial testing

1.       Dr George's and Mr Boothman's evidence

2.       The extent of the initial testing performed

D.      Treatment on the Leander table

1.       Dr George's and Mr Boothman's evidence

2.       Findings about treatment given on the Leander table

E.       A discussion after the treatment on the Leander table

1.       Whether Mr Boothman felt like he was in more pain

2.       Mr Boothman's and Dr George's evidence about a discussion

3.       Findings about the discussion

F.     A further treatment

1.       Dr George's and Mr Boothman's evidence

2.       Findings about the further treatment

G.      The relevance of the characterisation of the treatments provided

III.     Whether Dr George breached a duty that he owed to Mr Boothman

A.      The duty of care owed by Dr George

B.      Mr Boothman's allegations of breach of duty

C. Section 5B of the Civil Liability Act

D.      Dr George's objections to Mr Boothman's expert evidence

1.       The objection that Dr Watson and Dr Silbert were not chiropractors

2.       The evidentiary basis underlying Dr Watson's evidence

3.       The objection to Dr Watts's evidence

E.       The risk of harm, its foreseeability and significance

1.       The relevant risk of harm

2.       The foreseeability of the risk

3.       The significance of the risk

F.     The precautions that a reasonable chiropractor would have taken

1.       Whether Dr George should have arranged an MRI

2.       Whether the clinical examination was inadequate

3.       The treatment on the Leander table

4.       The further treatment

5.       Whether the treatment provided was contraindicated

G.      Conclusion on breach of duty

IV.     Whether any breach of duty caused Mr Boothman an injury

A. Section 5C of the Civil Liability Act

B.      Mr Boothman's case on causation

1.       Mr Boothman's case on causation

2.       Dr Silbert's opinion

3.       Dr George's criticisms of Dr Silbert's evidence

4.       Dr Watson's evidence

5.       Dr Watts's evidence

6.       Dr Lam's evidence

C.      Dr George's case on causation

1.       Dr Rinaudo's evidence

2.       Other possible causes of Mr Boothman's injury

3.       Mr Boothman's back injury in 2016

4.       Mr Boothman's underlying back pathology

D.      Conclusion on causation

1.       Whether Dr George's treatment caused Mr Boothman's injuries

2.       Whether Mr Boothman's underlying back pathology made injuries inevitable

V.     Quantum

A.      Past economic loss and interest

B    Claims associated with future surgery

1.       Mr Boothman's claims

2.       Dr George's submissions

3.       Assessment

C.      Future medical expenses not associated with future surgery

1.       Mr Boothman's claims

2.       Dr George's submissions

3.       Assessment

D.      Future loss of earning capacity

E.       Aids and appliances

F.     Past services and interest

1.       Mr Boothman's claims

2.       Dr George's submissions

3.       Assessment

G.      Future assistance not associated with surgery

H.      Past and future travel expenses

I.    Wilson v McLeay

J.    Special damages

K.      Non-pecuniary loss

1.       Additional findings of fact

2.       Assessment

L.       Summary of damages assessment

PALMER DCJ:

1. Introduction and factual background

A.     Introduction

1. These proceedings arise out of treatment that the Plaintiff (Mr Boothman) received from his chiropractor, the Defendant (Dr George).

2. Mr Boothman has a history of lower back complaints.  He started receiving treatment from Dr George in January 2019 after he strained his back at the end of the previous year.  His back had been improving under Dr George's care but on 4 May 2019, Mr Boothman strained his back while he was surfing.

3. Mr Boothman went to see Dr George on Saturday 18 May 2019.   Mr Boothman did not feel that Dr George's treatment that day made him feel any better, in fact he says it made him feel worse.  He felt sore as he walked home after the treatment and unwell that afternoon and night.

4. The next morning, Mr Boothman had no feeling in his right leg which was unable to bear weight.  He had significant pain in his buttocks and he was unable to control his right foot properly.  When he tried to get out of bed, he fell over.

5. Mr Boothman was unable to see his general practitioner that day as it was a Sunday but he saw his general practitioner the next day, on Monday 20 May 2019.

6. Mr Boothman's general practitioner sent him for a magnetic resonance imaging scan (MRI).  It revealed that he had a central right disc protrusion with slight inferior extrusion at the L4/L5 vertebrae.  The scan also showed an impingement on the right L5 nerve root.  One of the discs between the vertebrae in Mr Boothman's spine had ruptured and the contents of the disc had begun to leak out and a nerve in Mr Boothman's spine was being affected.

7. On Friday 24 May 2019, Mr Boothman was seen by a neurosurgeon, Dr Mark Lam.  It was the first appointment that Mr Boothman was able to obtain with a neurosurgeon.  Given Mr Boothman's condition, Dr Lam recommended immediate surgery and that surgery was performed the next day.

8. Mr Boothman blames Dr George for the rapid deterioration in his condition.  In these proceedings he alleges that the treatment that Dr George provided to him on 18 May 2019 caused the disc extrusion.  He alleges that Dr George's treatment was contraindicated given his history, Dr George should have referred Mr Boothman for an MRI scan before any treatment, Dr George failed to perform an adequate clinical analysis and failed to treat Mr Boothman with due skill and care.  Dr George did not deny that he owed Mr Boothman a duty to exercise reasonable care but denied that he had breached that duty.

9. The precise nature of the treatment that Dr George provided to Mr Boothman on 18 May 2019 is controversial.  Although in many respects the accounts given by Mr Boothman and Dr George were similar, they diverged in material respects.

10. Whether the treatment that Dr George provided Mr Boothman caused any injury is also controversial.  Dr George disputed that the evidence established that his treatment exacerbated Mr Boothman's condition and maintained that Mr Boothman's condition was attributable to his underlying back condition.

11. The quantum of any damages was not agreed and remained in issue.

12. The principal issues to be determined at trial were therefore:

    (a)the treatment provided by Dr George to Mr Boothman on 18 May 2019 (addressed in Part II below);

    (b)whether Dr George breached a duty of care he owed Mr Boothman (addressed in Part III below);

    (c)whether any breach of duty caused Mr Boothman an injury (addressed in Part IV below); and

    (d)what (if any) loss was caused by any breach of duty (addressed in Part V below).

B.     The uncontroversial factual background

1. Much of the relevant factual background is uncontroversial.  Unless stated otherwise, the matters in Part I.B.1 to Part I.B.22 did not appear particularly controversial and I make findings accordingly.

1. Mr Boothman

1. Mr Boothman was born on 26 October 1981.  At the time these reasons were prepared he was 42 years old.

2. Mr Boothman is a solicitor.  He is currently employed by Corrs Chambers Westgarth and practices in the area of major industrial disputes and work, health and safety.  Mr Boothman obtained a law degree from the Queensland University of Technology in about 2016.  He has worked at Corrs Chambers Westgarth since February 2017.

3. Law is not Mr Boothman's first profession. Before being employed as a lawyer, Mr Boothman worked in various roles including in workplace health and safety.  He graduated with a Bachelor of Science majoring in Human Movement in 2005.  In 2008, he obtained a postgraduate diploma in Human Resources and Industrial Relations. In 2012, he obtained a mediation certificate from what is now called the Resolution Institute.

1. Dr George

1. Dr George is a qualified chiropractor consulting from rooms at Doubleview Chiropractic Clinic in Doubleview.  By the time of the trial, Dr George had been practicing as a chiropractor for almost 34 years.

1. Dr George graduated from the Palmer College of Chiropractic, magna cum laude, on 9 December 1988.

2. After graduating Dr George was employed by another chiropractor in a practice in West Perth where he worked for a year.

3. Dr George then bought a practice from another chiropractor and relocated the practice to Broadway in Nedlands where he practiced for 10 years.

4. In 1994, Dr George bought the Doubleview Chiropractic Clinic.  For a period he ran two practices but in 2000 he sold one of the practices and practiced solely from the Doubleview Chiropractic Clinic.

5. Dr George has not been the subject of any previous disciplinary proceedings or any findings of negligence.

1. Back pain in 2008

1. In 2008, Mr Boothman experienced pain in his lower back.  An MRI of his lumbar spine showed a small disc bulge.  To the best of Mr Boothman's recollection, the bulge was at the L4/L5 and L5/S1 levels.

1. Back pain in 2011/2012

1. Although at trial Mr Boothman initially said that the next episode of back pain was in 2012, there is some reference in the evidence to this episode being in 2011:

   (a)in 2016, Mr Boothman told his then general practitioner, Dr Lau that he started to have back pain in 2010 - 2011 and had had a bulging disc and a CT guided injection;

   (b)when Dr George first saw Mr Boothman, Dr George's notes record Mr Boothman telling him that in 2011 he had acute lower back pain into his left hip; and

   (c)Mr Boothman told Dr Peter Silbert that in 2011 he had had lower back discomfort and aching into his leg.

2. Mr Boothman was cross‑examined about what he told Dr George[1] and Dr Silbert.[2]  He said that there was only a single episode of back pain and not two episodes in 2011 and 2012.[3]  I find that there was a single incident of back pain in 2011.

1. Back pain and surgery in 2016

   [1] ts 78.

   [2] ts 87 - ts 88.

   [3] ts 88.

1. On 9 May 2016, Mr Boothman saw Dr Clement Lau a general practitioner complaining of lower back pain.  The history recorded by Dr Lau included that:

   (a)Mr Boothman reported lower back pain that was non‑traumatic and that he used to have a bulging disc;

   (b)the pain was so bad that Mr Boothman had to go to the emergency department over the weekend; and

   (c)he had night pain and he was waking up with pain.

2. Dr Lau recorded that he examined Mr Boothman and determined that he had a limited range of movement, was stooping and could not stand on his left foot due to pain. Dr Lau prescribed anti‑inflammatories and painkillers.  Dr Lau's notes refer to him prescribing tramadol but when Mr Boothman was asked about this, he said he did not take tramadol.

3. On 12 May 2016, Mr Boothman saw Dr Lau again.  The history recorded by Dr Lau included that the back pain was getting worse, Mr Boothman had not slept for the last two days and he needed an MRI scan.

4. On 16 May 2016, Mr Boothman saw Dr Chan (who seems to have been at the same practice as Dr Lau).  Dr Chan recorded that his back pain had started two weeks ago and had got worse following a lot of driving and sitting.  Dr Chan recorded that an examination of Mr Boothman revealed that he had a very restricted lower back, he listed to one side and he had a stooped posture.

5. An MRI of Mr Boothman's back was performed the same day.  A report was prepared by a radiologist, Dr M Gupta following a review of that MRI.  In his report Dr Gupta said that:

   (a)L4/L5 L5/S1 intervening discs were desiccated;

   (b)a mild disc bulge at L3/L4 with minor left neural foreman compromise;

   (c)diffuse disc bulge with annular tear and posteroventral protrusion with secondary canal stenosis L4/L5, compression of traversing nerve roots, mild foramen compromise; and

   (d)broad based diffuse disc bulge at L5/S1 causing canal stenosis with compression of traversing nerve roots, mild neural foramen compromise at L5/S1 level.

6. While it is uncontroversial that an MRI was preformed and Dr Gupta prepared the report described, whether Dr Gupta's findings were accurate was called into question.  I address this further in Part IV.B.3 below.

7. On 19 May 2016, Dr Lau wrote to the Nursing Co‑ordinator at Central Gippsland Health Services to arrange for Mr Boothman to be prescribed medication and reviewed by physiotherapy.

8. On 20 May 2016, Mr Boothman had a CT guided L5 nerve root injection.

9. On 21 May 2016, Dr Goon referred Mr Boothman to a physiotherapist.

10. On 31 May 2016, Mr Boothman saw Dr Lau.  Dr Lau reported Mr Boothman as being improved but frustrated with the progress.  Dr Lau recorded having a long discussion with Mr Boothman that included suggesting that he speak to a back specialist in case things did not get better.

11. On 14 June 2016, Mr Boothman saw Dr Lau again.   Dr Lau recorded that Mr Boothman was swimming and doing Pilates.

12. On 21 June 2016, Mr Boothman was seen by an orthopaedic surgeon, Dr Braad Sowman.  In a letter to Dr Lau, Dr Sowman reported that:

    (a)an MRI scan provided to him by Mr Boothman showed that Mr Boothman had a disc prolapse at L4/L5, L5/S1 which was slightly left sided in nature and was causing compression of both the L5 and S1 nerve roots in the lateral recess;

    (b)he had recommended to Mr Boothman that he have a lumbar epidural to manage his back pain;

    (c)Dr Sowman thought that Mr Boothman would eventually come to some form of surgery, most likely in the form of a discectomy but that he had not recommended that at this stage and he wanted to allow him to settle down with the epidural and to attend a surfing trip and he would see Mr Boothman again when he returned; and

    (d)Dr Sowman considered that Mr Boothman would have some form of back pain for the rest of his life and that the only way to fix this would be fusion and Mr Boothman was not keen on this.

13. On 29 June 2016, Mr Boothman saw Dr Sowman again.  Dr Sowman said that Mr Boothman had had an L4/L5 epidural which had taken away a significant amount of the pain.  He said that Mr Boothman had said that he would go on his surfing trip and would think about surgery further when he returned.

14. On 18 July 2016, Mr Boothman saw Dr Lau again.  He said that Mr Boothman said he had backache and the L5 cortisone injection had not done much despite the surgeon saying there was a marked improvement.  Dr Lau noted a long conversation about surgery.

15. On 21 November 2016, Dr Lau referred Mr Boothman to Dr Taylor asking him to see Mr Boothman and advise whether there was anything further that could be done to manage his condition.

16. On 30 November 2016, Dr Mark Kahngure from SKD Radiology prepared a report following a review of an MRI of Mr Boothman's lumbar spine.  In that report Dr Kahngure observed that:

    (a)at L4/L5 there was a moderate loss of disc height and signal with a broad based central shallow protrusion demonstrating an annular fissure, superimposed on a generalised disc bulge.  There was no compromise in the take off of the L5 root or dural sac.  He said that the facet joints demonstrated a relatively coronal orientation with no degenerative change evident;

    (b)at L5/S1, there was a broad based central left disc protrusion superimposed on a generalised disc bulge.  This impinged on the left S1 root and there was oedema of the root.  The disc bulge abutted the perineural fat at the take off of the right S1 root and there was no dural sac compromise and no facet joint degeneration was demonstrated; and

    (c)comparison with a previous study in May demonstrated progression of the disc protrusion interior extrusion at L4/L5 but a slightly more prominent protrusion at L5/S1.

17. Dr Sowman also reviewed an MRI scan provided to him by Mr Boothman. This is presumably the same scan commented on by Dr Gupta.

18. On 16 December 2016 Dr Sowman performed left L4/L5 and L5/S1 lumbar discectomies on Mr Boothman.

1. Mr Boothman's back between 2016 and 2018

1. At trial, there was some cross‑examination about whether Mr Boothman may have experienced other episodes of back pain between 2016 and 2018.[4]

   [4] See for example, ts 78 ‑ ts 82.

2. In his defence, however, Dr George admitted that Mr Boothman enjoyed a relief from symptoms after Dr Sowman's surgery until approximately December 2018, when he suffered lower back pain after bending over to pick up a volleyball.[5]  At no time did Dr George seek to withdraw this admission.  Given this admission I find that Mr Boothman enjoyed a relief from symptoms after Dr Sowman's surgery until approximately December 2018.

1. Mr Boothman injures his back and starts seeing Dr George

   [5] Statement of Claim, par 3.2; Defence, par 4.

1. On 27 December 2018 Mr Boothman strained his back while bending down to pick up a volleyball at the Bootleg Brewery.

2. In early January 2019, Mr Boothman made an appointment to see Dr George.  The pain in Mr Boothman's back had subsided by then but he wanted to be proactive and manage the situation.

3. Mr Boothman saw Dr George on seven occasions prior to 18 May 2019: 5 January 2019, 12 January 2019, 19 January 2019, 23 January 2019, 9 February 2019, 7 March 2019 and 27 April 2019.

1. Mr Boothman's initial consultation with Dr George on 5 January 2019

1. At the first consultation Mr Boothman told Dr George that his goal was to avoid a second surgery.  Dr George advised him to keep his weight down and maintain good exercise levels.  Mr Boothman found this advice very helpful. 

2. It is Dr George's practice to keep notes of his consultations with patients.  These notes are made on a computer and stored electronically.  In relation to his consultation with Mr Boothman on 5 January 2019, Dr George's medical records include a health history, a document described as a pain and diagnostic drawing, an examination report and a note of Mr Boothman's visit on 5 January 2019.

3. Dr George's practice is also to have a new patient sign a consent form. 

4. Dr George's practice is to complete the health history himself during the course of the consultation.  There is a section of the health history that is marked 'previous complaints'.  In this section Dr George recorded '2011 acute LBP to left hip? Next episode 2016 bad for 1 year'.  This means that Mr Boothman had lower back pain that had some association with Mr Boothman's left hip but this was uncertain and Mr Boothman had a further episode of back pain in 2016 that lasted a year.

5. The health history had a section marked 'Surgery Hx' that recorded microdiscectomy surgery in December 2016.  That surgery was also noted in a section of the health history marked 'red flags'.  'Red flags' were intended to record a factor that might alter the treatment that Dr George might select. 

6. A section of the examination report marked 'findings' recorded 'L4 restriction with mild left antalgia.  See dx drawing, other LL motor and sensory intact'.  'LL' refers to the lower limb.

7. A section of the examination report marked 'clinical impression' recorded 'Mechanical LBP with very mild right S1 neural tension possibly related to previous discectomy'.  'LBP' means lower back pain.

8. Dr George's note of Mr Boothman's visit on 5 January 2019 referred to the history that had already been recorded in the documents I have referred to.  The note then recorded that there was joint dysfunction that was treated as recorded in the note.  The treatment provided was recorded as:

   Mobilise L spine, prone, FD

   L4, PL-M, side lying, manual adj

9. 'L' stands for lumbar and 'FD' stands for flexion distraction.  Flexion distraction is a chiropractic technique used for either cervical or lumbar disc problems and involves treatment on a specially manufactured table with three sections.  Dr George's table has a section that the face rests on, a section on which the chest and belly rests (abdominal section) and a section for the bony pelvis and legs (pelvic section).  The junction between the abdominal section and the pelvic section is hinged so that the pelvic section can drop down 17 degrees.  The table is a Leander table which is motorised.[6]

   [6] ts 591.

10. Dr George's practice is to drop away the abdominal section of the table so that the bony section is still supported by the pelvic section.  He 'screens' the vertebrae before turning the table on.  This screening involves feeling for responses in the muscles before applying any pressure.  If there is no response, he would then apply pressure.  He would put his hand on the spine with either the heel of the hand, thumb and forefinger or two thumbs with two hands, depending on the direction and amount of pressure he wanted to apply.[7] 

    [7] ts 598.

11. With regard to the second line of the notation, L4 is a reference to the L4 vertebrae[8] and 'PL‑M' is a reference to Dr George's 'listing system' which identified the contact point and the direction applied in the treatment.  'M' stands for the mammillary process of the lumbar vertebra and meant that he pushed from back to front and from feet towards the head.[9]

    [8] ts 591.

    [9] ts 592.

12. With regard to the note 'side lying, manual adj', this refers to a manual adjustment which is a high‑velocity, short amplitude thrust.[10]  Dr George considers this technique to be different to a 'rolling lumber manipulation' employed by some chiropractors.  Dr George does not use rolling lumber manipulations as he found such manoeuvres uncomfortable when they had been performed on him and tried to minimize the rotational component of adjusting.[11]

    [10] ts 592.

    [11] ts 593 ‑ ts 594.

13. Dr George's note of Mr Boothman's visit on 5 January 2019 included a section marked next visit interval in which the interval was recorded as three days.  With a new patient Dr George likes to get to know how a patient's spine responds to treatment and progresses so he will usually schedule multiple visits in the first few weeks.

1. Mr Boothman sees Dr George on 12 January 2019

1. Mr Boothman's next consultation with Dr George was on 12 January 2019.  Dr George's note of that visit records that Mr Boothman reported that his condition was improving.  The note also recorded that Dr George provided the same treatment as on 5 January 2019.  Again, the note recorded the next visit interval as three days.

1. Mr Boothman sees Dr George on 19 January 2019

1. Mr Boothman's saw Dr George again on 19 January 2019.  Mr Boothman reported feeling looser but still sore. Dr George provided the same treatments as the previous consultations.  His notes also record that he provided a third treatment:

   L5, PR-M, side lying, manual adj light

2. This treatment involved Dr George contacting the left side of the L5 vertebrae and using minimum force to achieve the adjustment.

3. Again, the note from the visit on 19 January 2019 recorded the next visit interval as three days.

1. Mr Boothman sees Dr George on 23 January 2019

1. Mr Boothman next saw Dr George again on 23 January 2019.  Mr Boothman reported feeling frustrated with his slow progress.  Dr George's notes recorded that he did not administer a side lying adjustment and the treatment was limited to mobilization and flexion distraction.  The note recorded the next visit interval as three days.

1. Mr Boothman sees Dr George on 9 February 2019

1. Mr Boothman saw Dr George again on 9 February 2019.  The note of the visit recorded 'right Becterews - mild LB tension'.  Becterews is a seating nerve tension test.  It involves the knee being straightened and if there is no aggravation, bringing the toes back to the body and if there is no reaction, the head being bent forward.  Dr George's practice was to perform this on both legs.  When he performed this on Mr Boothman's right leg, there was mild lower back tension.

2. The note of that visit recorded the same mobilisation as on previous occasions and recorded a side lying manual adjustment being performed to the L3 and L2 levels.[12]  Dr George said this was to improve the mobility of the joints above the problematic joints.[13]  The note of the visit recorded the next visit interval as being three weeks.  The length of the interval was longer because Dr George considered that the functionality of the spine was improving.

1. Mr Boothman sees Dr George on 7 March 2019

   [12] Exhibit 40.31.

   [13] ts 597.

1. Mr Boothman next saw Dr George on 7 March 2019.  Mr Boothman reported feeling good after the Rottnest swim.  The notes record that Mr Boothman will 'try supportive care'.  This meant that Dr George would be less prescriptive and allow Mr Boothman to self‑manage and alter his booking if he wished to.  The notes recorded that Dr George performed side lying manual adjustments at the L2 and L3 levels as he had done on 9 February 2019.  The notes also recorded that he performed a 'T12, PL-T seated impulse Instr'.  This involved using an impulse adjusting instrument on the T12 vertebrae.  'T' denoted a transverse process.

2. The note for the visit gave the next visit interval as six weeks.

1. Mr Boothman sees Dr George on 27 April 2019

1. The final occasion on which Mr Boothman saw Dr George before the consultation on 18 May 2019 was on 27 April 2019.  Mr Boothman reported his condition as good.  Dr George provided the same mobilisation that he had provided previously.  He also used his impulse instrument on the upper trapezius.  The note records the next visit interval as being eight weeks.

1. Mr Boothman strains his back surfing in early May

1. On or around 4 May 2019, Mr Boothman experienced what felt like a strain injury while he was surfing, which resulted in right sided pain in the mid to lower back.

2. Mr Boothman went surfing at South Trigg Beach very early in the morning.  While he was surfing, he stood up and did a bottom turn, arcing off the wave when he felt a strain in his mid to lower back, between his shoulder blades.  He has had this sort of pain a number of times before.  He continued surfing for another hour or so.

3. When Mr Boothman got home he did some general stretching, rolling out using a roller and he felt generally okay.  He noticed, however, that his back did not get better and he noticed spasms in the area of his right gluteus maximus muscle.  These started a couple of days before Mr Boothman saw Dr George on 18 May 2019.

4. Mr Boothman already had an appointment booked with Dr George for 18 May 2019.  Mr Boothman did not notice anything go wrong between 4 and 18 May and did not take any additional medications.

5. What transpired at the consultation on 18 May 2019 is discussed in detail in Part II below.

1. After Mr Boothman left the Doubleview Chiropractic Clinic

1. Mr Boothman walked home from the Doubleview Chiropractic Clinic.  It is a 500 m walk on a slight incline.  He had difficulty walking and was labouring up hill.  He had shortness of breath and felt dizzy.

2. When Mr Boothman got home, his wife told him that he did not look right and asked him if everything was okay.  He told her that he did not feel right and was sore.  Mr Boothman and his wife had a party to attend and his wife asked whether he could attend.  He said that he could.

3. Mr Boothman usually drove but asked his wife to drive because he felt unwell. 

4. Mr Boothman and his wife were at the party between 1.00 pm and 3.00 pm and he was uncomfortable during that time.  He was not able to look after the children as he was feeling unwell.

5. Mr Boothman said his wife drove home and when he got home he was feeling more and more sore.  He said that he took two Panadol Osteo despite the fact that he did not normally take medicine and went to sleep about 8.30 pm.

6. The pain was on the right‑hand side.  There was significant soreness in Mr Boothman's buttocks and lower back.  There was also pain radiating down Mr Boothman's leg which he had not experienced before.

1. 19 May 2019

1. When Mr Boothman woke up the next morning and tried to get out of bed, he fell over onto the window next to his bed and then back into bed.  He had no feeling in his right leg from the hip down.

2. Mr Boothman felt panicked.  He thought he had foot drop.  He was familiar with the symptoms of foot drop as he had met someone who had suffered from the condition previously.  The front of Mr Boothman's foot dropped so the front of his foot pointed to the ground, even though he was not intending to do this.  When he walked, he had to lift his whole leg as he was not able to keep his foot level when he walked.

3. Mr Boothman's wife is also a lawyer and she suggested that he should prepare a statement which he did while sitting on the bed.

4. Mr Boothman wanted to see his general practitioner but he could not do so as it was a Sunday.  Instead, he rested in bed feeling distraught and panicked.

1. 20 May 2019

1. On the following day, 20 May 2019, Mr Boothman called his general practitioner Dr Nasso Theodosiadis.  He told reception that he thought he had foot drop and the receptionist put him through to Dr Theodosiadis, who told him to come in straight away.

2. Mr Boothman went in to see Dr Theodosiadis.  Dr Theodosiadis examined Mr Boothman's foot and performed some tests.  He indicated that he thought it was foot drop and that matters of this kind should be treated with urgency.  Dr Theodosiadis prepared a referral letter that he sent to Dr Sowman's rooms and then called Dr Sowman's rooms, booking Mr Boothman in to see Dr Sowman on Friday.

3. Dr Theodosiadis then referred Mr Boothman for an MRI.  Mr Boothman went to St John of God Subiaco for an MRI that night.

4. That MRI was subsequently reviewed by Dr Mark Khangure who reported:[14]

   [14] Exhibit 26.

   L4/5: A degenerate disc is accompanied by a central right disc protrusion with slight inferior extrusion.  There is impingement on the right L5 root at the level of the subarticular recess and indentation on the dural sac.  The protrusion is wedge shaped with a narrow component at the midline and at its broadest the disc protrudes by 5mm AP.  The underlying discs (sic) is degenerate with loss of height and signal.  No facet joint arthropathy shown.

   L5/S1: A degenerate disc with loss of height and signal is accompanied by a broad based disc protrusion, 5mm AP across the face of the dural sac.  This effaces the factor anterior to the take off of the left S1 root which is slightly oedematous.  There is marginal osteophytic spurring and endplate fatty marrow but no compromise at the exiting L5 roots is demonstrated.  The dural sac shows no compromise.

   Opinion:

   1.A central right disc protrusion at L4/5 on the background of a degenerate disc which impinges on the right L5 root.

   2.A degenerate disc with a broad based disc protrusion at L5/S1 across the face of the dural sac which impinges on the left S1 root at the level of subarticular recess. The S1 root is oedematous. No compromise of the exiting L4 or L5 roots are shown.

1. 21 May 2019

1. On 21 May 2019, Mr Boothman saw Dr Theodosiadis again.  Mr Boothman was contacted by Dr Theodosiadis who informed him that he had received the results of the MRI and suggested a follow up appointment.

2. Mr Boothman had also been researching neurosurgeons on the internet and asked Dr Theodosiadis to refer him to see Dr Graham Jeffs.  Dr Boothman made an appointment to see Dr Jeffs but he was not available until 6 June.

1. 22 to 24 May 2019

1. Mr Boothman's pain became worse over the following days.[15]  His whole body started to contort and it was agony walking and he took the rest of the week off work.

   [15] ts 54.

2. On 23 or 24 May 2019, Mr Boothman received a call from Dr Sowman's rooms who told him that due to an emergency, Dr Sowman would not be able to see him until 30 May 2019.

3. Mr Boothman was becoming more and more sore and getting anxious that he was going to lose the function in his left leg which Dr Theodosiadis had said might be a risk.  He called Dr Jeff's rooms and the receptionist suggested that he speak to Dr Lam who worked in the same rooms and was available to see Mr Boothman.  Mr Boothman made an appointment to see Dr Lam.

1. 24 May 2019

1. Mr Boothman saw Dr Lam on 24 May 2019.

2. Mr Boothman recalls that on seeing Dr Lam when he walked into the room, Dr Lam told him 'wow, we need to do something with you right away'.

3. Mr Boothman recalls that Dr Lam examined him and told him that he had foot drop.  Mr Boothman recalls that Dr Lam told him that his condition was really serious and he could lose the use of his entire right leg if something was not done right away.

4. Mr Boothman recalls that he asked whether he could rest and do exercises but Dr Lam told him that the risks of not performing surgery far outweighed the risks of surgery.  Mr Boothman recalls that Dr Lam told him that he could perform surgery the following day and recommended that Mr Boothman have surgery on that day.  Mr Boothman agreed to the surgery.

5. That night Mr Boothman experienced agonising pain.  He was not certain what caused it but he felt his body was on fire.  He lay on the ground writhing in agony.  He described his wife and children crying.  He took painkillers and fell asleep at about 8.00 pm.

1. 25 May 2019

1. On 25 May 2019, Mr Boothman woke up about 4.00 am and was soon experiencing burning pain again.  Mr Boothman's wife spoke to the hospital who said they could bring Mr Boothman in for surgery early.  He left for the hospital at 5.00 am or 5.30 am.  He was shaking and in agony.  He had never been in so much pain.

2. Mr Boothman underwent a right L4/L5 microdiscectomy and decompression of the right L5 nerve root that day.

3. The surgery was uneventful.  Dr Lam considered that there was a significant improvement of Mr Boothman's right leg pain and ankle extension weakness.

4. Dr Lam's note of the operation refers to identifying the annulus tear and removing a 'large' disc extrusion.

C.     The witnesses

1. Both Mr Boothman and Dr George gave evidence at trial.  They were the principal witnesses of fact.

2. Mr Boothman called six expert medical witnesses:

   (a)Dr Mark Lam, the neurosurgeon who operated on him on 25 May 2019;

   (b)Dr Peter Silbert, a neurologist;

   (c)Dr Peter Watson, a neurosurgeon;

   (d)Dr Greg Finch, an orthopaedic surgeon; and

   (e)Dr Bruce Watts, a chiropractor.

3. Dr George called two witnesses in addition to giving evidence himself:

   (a)Dr Carlo Rinuado, a chiropractor; and

   (b)Mrs George, his wife and receptionist.

1. Dr Mark Lam

1. Dr Lam is a neurosurgeon who has been qualified as a neurosurgeon since 2013.

2. Dr Lam gave evidence about his treatment of Mr Boothman.  Although he was asked about Mr Boothman's medical history and the cause of disc injuries generally, he did not proffer an opinion about whether Dr George's treatment caused Mr Boothman's disc injury, or the quality of the care Dr George provided.

3. Dr Lam sent three written reports to Mr Boothman's general practitioner regarding his treatment of Mr Boothman dated 25 May 2019 (Exhibit 17), 27 May 2019 (Exhibit 18) and 27 June 2019 (Exhibit 19).  He also prepared two reports for Mr Boothman's solicitors dated 7 February 2020 (Exhibit 22) and 24 July 2023 (Exhibit 24).

4. Dr Lam also made a note of his consultation with Mr Boothman on 24 May 2019 (Exhibit 16) and a note of the operation he performed (Exhibit 20).

1. Dr Peter Silbert

1. Dr Silbert is a senior clinical neurologist.  Between 1999 and 2011, he was the head of the department of Neurology at Royal Perth Hospital.  Between 2008 and 2010, he was the Western Australian State Director of Neurology.  In 2011 he was Head of Neurology Services for Western Australia.  He is a Clinical Professor of Neurology at the University of Western Australia.

2. Dr Silbert completed his Neurology training through the Western Australian State Neurology training programme.  He undertook post graduate fellowships at the Mayo Clinic, in Rochester, Minnesota USA in the areas of Clinical Neurology and Neurophysiology between 1992 and 1994.  As part of those Clinical Neurology and Neurophysiology fellowships he gained experience in the areas of limb pain and its clinical diagnosis and electrophysiological assessment, working closely with spinal and orthopaedic surgeons, neurosurgeons, and clinically assessing patients as an extension of the neurophysiological examination.

3. Since returning to Perth in 1994 he has worked as a neurologist, neurophysiologist and epileptologist, in the private and public health system, moving fully to the private sector in April 2012.

4. Dr Silbert gave evidence about the risks associated with treating Mr Boothman when he was seen by Dr George, whether it was reasonable to provide the treatment that Mr Boothman said was provided, the cause of Mr Boothman's disc injury, Mr Boothman's ongoing symptoms and disabilities and his needs for future care.

5. Dr Silbert provided three written reports dated 5 June 2020 (Exhibit 9), 22 March 2021 (Exhibit 11) and 21 November 2021 (Exhibit 13).

1. Dr Peter Watson

1. Dr Watson is a retired neurosurgeon.  He qualified as a doctor in 1981, as a neurosurgeon in 1991 and he was a consultant neurosurgeon in Perth from 1991 until about 2015.  At that time, he worked extensively in Perth in all the public hospitals, including the children's hospital, and then he practiced exclusively out of St John of God Hospital in Subiaco.

2. He gave evidence about similar matters to Dr Silbert.  He provided a written report dated 31 August 2020 (Exhibit 32).

1. Dr Bruce Watts

1. Dr Watts is a registered osteopath and chiropractor having graduated in 1973 and having been in private practice for 44 years.

2. Dr Watts has lectured in anatomy, including diagnosis and patient examination, and manipulative medicine, including procedures and limitation of manipulations and contraindications.  He was head of the Department of Social Medicine that included ethics of practice.  He was Vice Principal of the New South Wales College of Osteopathy and Chiropractic.

3. He gave evidence about the risks associated with treating Mr Boothman when he was seen by Dr George, whether it was reasonable to provide the treatment that Mr Boothman said was provided and the cause of Mr Boothman's disc injury.  He provided a written report dated 13 December 2021 (Exhibit 38).

1. Dr Greg Finch

1. Dr Greg Finch is an orthopaedic surgeon.  He obtained a Bachelor of Medicine and a Bachelor of Surgery from Auckland University in 1982.  In 2001 he became a fellow of the Royal Australasian College of Surgeons.

2. After he qualified as an orthopaedic surgeon, he spent 2.5 - 3 years doing subspecialty spine and paediatric spine training in America, the United Kingdom and Germany, before he returned to Perth.

3. He has been a full‑time practising spinal surgeon since 2003.  For approximately eight years he was working predominantly in the public sector at Royal Perth Hospital, Sir Charles Gairdner Hospital and the Children's Hospital but also in the private sector at St John of God Subiaco, Murdoch and, occasionally, Hollywood Private Hospital.  He is currently working on the Sunshine Coast.

4. He was called to give evidence about the likely cost of surgery.  He provided a written report dated 1 August 2023 (Exhibit 34).

1. Dr Carlo Rinaudo

1. Dr Rinaudo graduated with a Bachelor of Medical Science from Sydney University in 1995 and completed Honours of Medical Science the following year.  He obtained a Masters of Chiropractic in 2000.  He has worked as a chiropractor since that date.  He also works as a tutor in neurology at Macquarie University.

2. Dr Rinaudo was called as an expert witness by Dr George to give evidence about the treatment that Dr George said he provided.  He prepared a written report dated 7 July 2021 (Exhibit 40.41).

1. Mrs Fiona George

1. Dr George's wife is Dr George's receptionist.  She gave evidence about her recollection of her interactions with Mr Boothman and the electronic record keeping systems at Dr George's practice.

1. The treatment Dr George gave Mr Boothman on 18 May 2019

A.     The evidence given by Mr Boothman and Dr George and Dr George's notes

1. The extent of Mr Boothman's and Dr George's recollection

1. Mr Boothman seemed to have a better recollection of the events of 18 May 2019 than Dr George.  While Mr Boothman's memory was not perfect and there were some matters that he could not recall, he seemed better able to give clear answers to the questions he was asked than Dr George.

2. Dr George said repeatedly that he could not recall various matters.[16]  This is unsurprising.  Dr George would have treated a large number of patients.  It is understandable that he might have difficulty recalling the treatments provided to one individual patient on one particular day.

   [16] See for example: ts 606, ts 607, ts 618 - ts 619, ts 623, ts 660.

3. Dr George admitted that at times he was giving evidence of his usual practice,[17] rather than from memory.  The overall impression I gained was that Dr George's evidence involved a considerable amount of reconstruction based on his usual practice and what he thought he would have done.

   [17] See for example: ts 606 - ts 607, ts 613, ts 623, ts 626 - ts 627, ts 653, ts 660.

4. The events in question may have been more memorable for Mr Boothman.  Receiving treatment from a chiropractor was less routine for him, than providing chiropractic treatment was for Dr George.  Mr Boothman also had cause to recall the events in question shortly after those events occurred, when he began preparing a statement the day after the treatment was provided.

1. The fallibility of human memory

1. Dr George submitted that Mr Boothman's evidence about the nature and mechanics of the treatment had been unconsciously influenced by his conversations with expert witnesses, or his knowledge of their evidence, particularly by his interactions with Dr Watts.[18]

   [18] Defendant's Closing Submissions, pars 75 - 78.

2. To the extent that Mr Boothman gave evidence of events that were not recorded in his statement, he was doing so from memory about events that transpired four years earlier.  I am conscious that human memory is imperfect and fallible.  As McLelland CJ in Eq observed in WatsonvFoxman,[19] the fallibility of human memory increases where disputes or litigation intervene and the process of memory is overlaid, often subconsciously, by perceptions of self‑interest.  McLelland CJ in Eq observed that '[a]ll too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed'.[20]

   [19] WatsonvFoxman (1995) 49 NSWLR 315.

   [20] Watson v Foxman (319).

3. Mr Boothman struck me as an honest witness.  I accept, however, that while his evidence may have been given honestly, it is possible that his memory may have been unconsciously influenced.  The same observation might be made about Dr George.  He also struck me as an honest witness but it is equally possible that his memory may have been similarly affected.  In assessing the evidence of both witnesses, I have borne in mind the possibility that their evidence may have been unconsciously influenced.

1. The reliability of Dr George's consultation notes

1. During cross-examination Dr George was asked whether the note he made of the consultation on 18 May 2019 was intended to 'cover his tracks'.  He denied this.[21]  In closing, Mr Boothman submitted that the note was 'suspicious and more consistent with a deliberate exculpatory note'.[22]  In response, Dr George maintained that the note was accurate and reliable.[23]

   [21] ts 622.

   [22] Plaintiff's Closing Submissions, par 107.

   [23] Defendant's Closing Submissions, pars 82 - 84.

2. It is not entirely clear whether Mr Boothman was inviting me to find that Dr George fabricated his note but I am not prepared to make such a finding on the basis of the evidence presented at trial. 

3. Dr George's note is only 'suspicious' if Mr Boothman's version of events is accepted as correct.  Even if it were accepted that the notes were suspicious, suspicion alone is an insufficient basis to find that the notes were fabricated.

4. It would be a serious finding to make that Dr George fabricated his note, particularly given his sworn evidence that he did not.  Such a serious finding should not be made on the basis of inexact proofs, or indirect inferences.  Reasonable satisfaction is not a state of mind that is attained independently of the nature and consequence of the fact to be proved.[24]

1. The limitations of Dr George's notes

   [24] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361 - 362.

1. Dr George's notes use abbreviations and do not expressly record some controversial aspects of the treatment given.  Even if the notes were not fabricated, they are not conclusive.

2. Further, as the abbreviations used in the notes were not self‑explanatory, it was necessary for Dr George to give evidence about what the notes meant.  As he was the defendant, Dr George's evidence about what his notes meant necessarily lacked impartiality.

1. The consistency between Dr George's evidence and his notes

1. In closing, Dr George submitted that his evidence should be preferred to that of Mr Boothman because his evidence was consistent with his notes.[25]  While I accept that there was consistency between Dr George's evidence and his notes, the manner in which he gave his evidence‑in‑chief meant that such consistency was not a matter of significance.

   [25]  Defendant's Closing Submissions, par 65.

2. Crucial aspects of Dr George's evidence-in-chief (including his evidence regarding the further treatment) were led by him explaining the abbreviations used in his notes.[26]  In many respects, the evidence he gave was evidence about what his notes meant.  It is therefore hardly surprising that his evidence was consistent with his notes. 

   [26] ts 603 ‑ ts 605.

3. The manner in which Dr George gave this evidence did not reveal any independent memory of what happened.  Combined with admissions that Dr George made that he could not recall, this aspect of his evidence contributed to my impression that he was really giving evidence of his usual practice.

1. Whether Mr Boothman's evidence was inconsistent with his prior statements

1. Dr George submitted that the evidence that Mr Boothman gave at trial was materially inconsistent with previous accounts he had given in three material respects.[27]

   [27] Defendant's Closing Submissions, pars 74, 79 - 81.

2. First, it was submitted that Mr Boothman gave evidence at trial for the first time that Dr George had 'hyperextended' his back while he was on the Leander table.[28]

   [28] Defendant's Closing Submissions, pars 33 - 38.

3. Secondly, it was submitted that Mr Boothman used the word 'thrust' at trial when describing the further treatment but used the words 'pressing' and 'pushing' to describe the force in his statement of claim and his statement.[29]  It was also submitted that Mr Boothman did not use the word 'thrusts' in his answers to the questions posed by Dr Watts.[30]

   [29] Defendant's Closing Submissions, par 74.1.

   [30] Defendant's Closing Submissions, par 74.3.

4. Thirdly, it was submitted that Mr Boothman made no mention of an alleged twisting action being so forceful that his knee dropped during the further treatment in his statement, or in any of the letters of instruction provided to expert witnesses on Mr Boothman's behalf or in any of the expert reports.[31]  It was submitted that it would be expected that each of these matters would have been addressed in Mr Boothman's statement or the letters of instruction.[32]

   [31] Defendant's Closing Submissions, par 74.2.

   [32] Defendant's Closing Submissions, pars 33 - 38, 79 - 81.

5. With regard to the first alleged inconsistency, Mr Boothman did not explain what he meant by 'hyperextended' and precisely what he meant was not explored with him at trial.

6. The word 'hyperextend' is defined in the Butterworths Medical Dictionary to mean 'to extend forcibly beyond normal limits eg. a limb in orthopaedic treatment'.[33] The same dictionary defines 'hyperextension' to mean 'in orthopaedics, the forcible over‑extending of a limb for the purpose of correcting deformity'.

   [33] Butterworths Medical Dictionary (2^nd ed).

7. If what Mr Boothman meant by saying that Dr George 'hyperextended' his back, was that Dr George had forcibly extended his back beyond normal limits, then it seems likely that Mr Boothman would have mentioned this in the accounts that he gave prior to trial.  Given that Mr Boothman suffered a back injury, it seems likely to me that he would have perceived the forcible extension of his back beyond normal limits as pertinent to mention.

8. As Dr George submits, Mr Boothman did not mention his back being hyperextended in any of the accounts that he gave prior to trial.  This might suggest that Mr Boothman's evidence was inconsistent.

9. It seems to me, however, that an assessment of whether Mr Boothman's evidence was inconsistent and, if so, the significance of that inconsistency requires a clear understanding of what Mr Boothman meant.  As Mr Boothman's use of language was not always precise,[34] I am not prepared to assume that he intended to use the Butterworths Medical Dictionary meaning of hyperextend.

   [34] See the discussion about Mr Boothman's use of the word 'thrusts' below.

10. Further, it seems to me that the significance of any inconsistency depends upon whether Mr Boothman's back was hyperextended.  The inconsistency might reduce the weight of Mr Boothman's evidence if it was found that his back was not hyperextended.  On the other hand, the significance of any inconsistency might be much less if I found his back had been hyperextended and Mr Boothman had overlooked mentioning this detail earlier.

11. Dr George objected to me making a finding that Mr Boothman's back was hyperextended because Mr Boothman had not pleaded such an allegation.[35]  Mr Boothman's closing submissions did not invite me to make a finding that his back was hyperextended.  Although those submissions mentioned the evidence that Mr Boothman gave about his back being hyperextended,[36] they did not appear to place any particular reliance on this aspect of his evidence.  In the circumstances, I do not consider it appropriate for me to make a finding about whether or not Mr Boothman's back was hyperextended. 

    [35] Defendant's Closing Submissions, pars 39 ‑ 43.

    [36] Plaintiff's Closing Submissions, par 26.

12. Given this and the lack of clarity regarding precisely what Mr Boothman meant, I am not satisfied that I should make a finding that the evidence that Mr Boothman gave about his back being hyperextended was inconsistent.

13. Both the second and third alleged inconsistencies concern the further treatment.  The description that Mr Boothman gave of that treatment in his witness statement was very brief and was as follows:[37]

    I lay down on the table with my left side down.  Dr George pushed down on my lower back two times.  Following this, I stood up and felt sore but as my appointment was over, I left his rooms.

    [37] Exhibit 1, par 22.

14. With regard to the second alleged inconsistency concerning the use of the word 'thrusts', Mr Boothman submitted that the term 'pushed down' used in the statement is consistent with the ordinary meaning of the term 'thrusts'.  It was submitted that he used the words interchangeably[38] and Dr George's argument was an exercise in semantics.[39]

    [38] Plaintiff's Closing Submissions, par 47.

    [39] Plaintiff's Closing Submissions, par 110.

15. When he gave evidence Mr Boothman said:[40]

    … as I exhaled, he pushed down onto my - my side, which caused my right knee to drop below his groin, down to approximately his knees, or around about that there.  He then re-manoeuvred that leg back to his groin and performed the same method again.  So I breathed in, and upon exhaling, he pushed down.  So they are the two thrusts I refer to in the second treatment.  As part of those - when those two thrusts.

    (emphasis added)

    [40] ts 44.

16. I am not satisfied that the evidence that Mr Boothman gave at trial that used the words 'thrusts' as well as the term 'pushed down' was inconsistent with his earlier evidence.  Mr Boothman used the word 'thrusts' interchangeably with the term 'pushed down' as if they had equivalent meanings.  It does not appear to me that by using the word thrusts he was intending to convey a different meaning.

17. Dr George's argument that Mr Boothman's evidence changed assumed that 'thrusts' conveyed the use of more force than 'push down'.  As Mr Boothman used the terms 'thrusts' and 'pushed down' interchangeably, however, he does not seem to have perceived one term to convey the use of more force than the other.  The particular term he used did not reveal anything about the amount of force used.

18. With regard to the movement of Mr Boothman's knee, Mr Boothman submitted that the evidence he gave at trial was simply a more complete explanation of what happened to him.[41]

    [41] Plaintiff's Closing Submissions, par 111.

19. Although Dr George submitted that Mr Boothman's statement included 'considerable detail',[42] the description of the further treatment was in fact very brief.  Given the brevity of this aspect of the statement, it is entirely plausible that some detail was omitted.

    [42] Defendant's Closing Submissions, par 81.2.

20. Dr George also submitted that Mr Boothman would have appreciated the significance of the relevant matters at the time he prepared the statement.[43]  It did not seem to me, however, that Dr George established that Mr Boothman appreciated the significance of these matters at that time.  Mr Boothman did not give evidence that he did and he did not have any expertise in chiropractic treatment or neurology.

    [43] Defendant's Closing Submissions, par 81.3.

21. It is also relevant that Mr Boothman was in considerable pain when he wrote the statement[44] and that although he is a lawyer, he was only a first‑year lawyer at the time.[45]

    [44] Plaintiff's Closing Submissions, par 111.

    [45] ts 830.

22. With regard to the letters of instruction sent to experts and the statement of claim, it is possible that Mr Boothman reviewed drafts of those documents but it is also possible that they were prepared on the basis of his statement without his input.  He was not asked whether he reviewed such drafts.  I am not prepared to infer that he did. 

23. With regard to Mr Boothman's answers to a questionnaire administered by Dr Watts, when the account of the further treatment given in the answers is compared against the witness statement, it may be seen that they are identical.[46]  The answer was copied verbatim from the statement.  As is discussed further below, when Mr Boothman was asked about what happened, Dr Watts says that Mr Boothman gave a slightly different answer.

    [46] Exhibit 37, answer to question 5.

24. With regard to what Mr Boothman told Dr Watson, Mr Boothman told him that Dr George 'pushed down on the lower lumbar spine twice twisting quite vigorously'.[47]  Mr Boothman was seen by Dr Watson on 27 August 2020.[48]  This was a little more than a year after Dr George provided the relevant treatment.

    [47] Exbibit 32, third par, page 3. Plaintiff's Closing Submissions, pars 112 - 113; ts 427.

    [48] Exbibit 32, page 1.

25. Mr Boothman submitted that he also told Dr Watts that Dr George 'pushed [his] lower back forward in a twisting action twice'.[49]  Dr George disputed that Mr Boothman told Dr Watts this.  Dr George submitted that the relevant paragraph had been inserted by Dr Watts and Dr Watts admitted under cross‑examination that it was his own conjecture.[50]

    [49] Plaintiff's Closing Submissions, par 114.

    [50] Defendant's Closing Submissions, pars 75 ‑ 78.

26. I do not accept that Dr Watts admitted under cross‑examination that the reference to a twisting action was his own conjecture, as Dr George submitted.  Rather, it seems to me that Dr Watts's evidence was that he used his own words to explain what Mr Boothman had told him.  At the culmination of the cross-examination relied upon by Dr George, the following exchange occurred:[51]

    And that's because those words, that version of paragraph 21, those are your words, aren't they?---I don't know, the description that I gave in my notes was the description that I gained from Mr Boothman on asking him questions about a manipulation about which I am familiar and knew what was happening and I asked him (indistinct) position and the importance of knowing that he leaned forward over his chest told me that that's a position that you adopt when you're going to apply extra pressure in rotation.  You have to do it to be a balanced - in a balanced position to provide extra force, so Mr Boothman would not understand what was being done right or what was being done wrong and he would not understand what would be considered as likely contributing factors to what he said had happened, but in my notes that's a description that anyone who was trained in manipulations would say that's a position you'd put someone in and adopt yourself if you're going to apply extra force.

    Right, so they're your words?---They're my words, yes.

    (emphasis added)

    [51] ts 496 - ts 497.

27. This evidence also needs to be considered in the context of Dr Watts's earlier evidence.  He was cross‑examined at length about the source of the relevant information and was consistent in his evidence that the relevant information had been reported to him by Mr Boothman.[52]  It does not seem to me to be a fair reading of his evidence to conclude that he made the concession asserted.

    [52] ts 487 - ts 496.

1. Mr Boothman saw Dr Watts in late 2021, after Mr Boothman had been seen by Dr Watson over a year earlier in August 2020.  As already mentioned, Mr Boothman told Dr Watson about the twisting.  It would therefore be unsurprising that Mr Boothman would have told Mr Watts about the twisting too when he was asked.

1. Mr Boothman's criticisms of Dr George's evidence

1. Mr Boothman said that in answer to some questions Dr George was evasive.  He gave as an example the following exchange:[53]

   And an increased risk on the disc could then result in an increased protrusion or extrusion of the disc, is that right? - - - I won't speculate on that.

   Well, it could, couldn't it?  It doesn't have to but it could? - - - anything can.

   [53] Plaintiff's Closing Submissions, par 121; ts 651.

2. Mr Boothman was also critical of other aspects of Dr George's evidence.[54]

   [54] Plaintiff's Closing Submissions, pars 122 ‑ 130.

3. Mr Boothman submitted that Dr George's evidence was generally evasive and entirely self‑serving.[55]

   [55] Plaintiff's Closing Submissions, par 131.

4. As I discuss further below,[56] I did consider that the evidence that Mr Boothman gave about some of the history he took and the testing he performed was self-serving.

   [56] See Parts II.B.2 and II.C.2 below.

5. It also seemed to me that there were times when Dr George became frustrated during cross‑examination and was argumentative but I did not consider his evidence was deliberately evasive.  Being cross‑examined is a stressful experience and such a reaction is not uncommon.  The overall impression I gained was that Dr George gave honest answers to the questions asked and was attempting to assist the court.

B.     The history taken

1. Dr George's and Mr Boothman's evidence

1. Dr George's note of the visit on 18 May 2019 recorded under the heading 'subjective':[57]

   Hurt LB surfing 6 days ago. Right buttock fasciculations.

   [57] Exhibit 40.31.

2. That Mr Boothman told Dr George something like this is not in dispute.  Although Mr Boothman could not recall the details of the history he gave, he accepted that he told Dr George that he had hurt his back while surfing and that he had twitching in his right buttock.[58]

   [58] ts 154 - ts 155.

3. Dr George has a recollection of Mr Boothman reporting right buttock muscle twitching because it was a changed feature of neurological significance, implying that there was nerve involvement.[59]

   [59] ts 601.

4. It seems unlikely, however, that Mr Boothman would have told Dr George that he injured his back on 12 May 2019, six days prior to the appointment.  Mr Boothman had hurt his back earlier than that, on 4 May 2019.   

5. I find that Mr Boothman gave Dr George a history that he had injured his back on 4 May 2019 but that for some reason Dr George misunderstood or mis‑recorded this.  I also find that Mr Boothman gave a history of twitching in his right buttock.

6. Dr George also says that he took further history from Mr Boothman that was not recorded in his notes.[60]  This included a history of the exact movement that was thought to have caused the injury and what aggravated and alleviated the pain.[61]  It also included Mr Boothman giving a history that he had heard a popping sound when he injured his back while surfing.[62] 

1. Whether a history of the exact movement was taken

   [60] ts 622.

   [61] ts 623 ‑ ts 634.

   [62] ts 600 - ts 601, ts 617.

1. I am not satisfied that Dr George took a history of the exact movement that was thought to have caused the injury and what aggravated and alleviated the pain.  His evidence was that this was what he 'always discussed' with patients.[63]  Just because something was Dr George's usual practice, does not mean that that practice was followed on this particular occasion.  This is particularly so, given Dr George had not allowed enough time for this consultation.[64]

   [63] ts 624.

   [64] ts 624.

2. Further, Dr George made no mention of this being his usual practice during his evidence‑in‑chief.  He asserted this in response to cross‑examination about Dr Rinaudo's criticisms of the inadequacy of the history he took.  The evidence seemed to be given as part of an attempt to defend Dr George's practices against the criticisms made by Dr Rinaudo.  The impression that I gained from hearing the evidence was that it was self‑serving.

1. When the pop was discussed

1. I am satisfied that there was some discussion about a pop during the consultation.  Both Mr Boothman and Dr George recall a pop being discussed.

2. The account that Mr Boothman consistently gave of injuring his back while surfing made no mention of a pop.[65]  The account that Mr Boothman gave at trial also made no mention of a pop while he was surfing.  He expressly denied that he told Dr George about a pop while he was surfing.[66]  Mr Boothman did say, however, that he felt a pop while he was on the Leander table and told Dr George about that.[67]

   [65] Exhibit 1, par 12.

   [66] ts 152.

   [67] ts 158.

3. There is no mention of a pop in Mr Boothman's witness statement but it does mention him feeling 'a strain in one of the muscles on his right glute'.[68]  On 20 May 2020 (about a year after the events in question) Mr Boothman seems to have described the strain as a 'pop' to Dr Silbert.[69]

   [68] Exhibit 1.

   [69] Exbibit 9, page 5.

4. Dr George's notes do not mention any popping noise. Dr George said that chiropractors use the term 'cavitation' to describe the popping sound.  He said that if there was a cavitation he was not expecting he might write down 'CAV'.[70]  He said that he would not have recorded Mr Boothman giving a history of his back popping because healthy joints can pop.[71] 

   [70] ts 601, ts 606.

   [71] ts 600 - ts 601, ts 617.

5. The absence of the notation 'CAV' does not establish that there was no pop.  Dr George did not say that he would habitually record any popping.  He also did not say that the circumstances described by Mr Boothman were circumstances in which a pop would have been unexpected.[72]

   [72] ts 606.

6. Dr George's account draws some support from Dr Rinaudo's opinion that flexion distraction typically does not produce a 'pop' sound, unlike manual thrust manipulations.  That support is limited however, because Dr Rinaudo also said that there can be an audible release, or cavitation, accompanying the traction.[73]

   [73] Exhibit 40.41, answer to question 7.

7. Ultimately, it seems to me more likely than not that Mr Boothman did not tell Dr George that he heard a pop while he was surfing.  Although it is not impossible that Mr Boothman gave Dr George a different history to that he gave anyone else (and which on Mr Boothman's evidence was inaccurate), it seems unlikely.  As Dr George did not make a note and has no independent memory,[74] it seems more likely to me that Dr George recalled popping being discussed but is mistaken about when it was discussed.

   [74] ts 618.

8. I find that Mr Boothman did not give Dr George a history of hearing a popping sound while he was surfing.  I am satisfied that it is more likely than not that Mr Boothman's back popped and he reported this to Dr George as Mr Boothman described. I find accordingly.

C.     The initial testing

1. Dr George's and Mr Boothman's evidence

1. Both Mr Boothman and Dr George agree that at the start of the consultation Dr George administered some tests.  They disagree about the precise nature and extent of those tests.

2. Mr Boothman said that those tests consisted of asking Mr Boothman to do some stretches, bend down, touch his toes and move side to side.[75]

   [75] ts 42.

3. Dr George said that he would do three phases of testing: standing testing, seated testing and prone testing.[76]  He referred to getting patients to walk on their heels and toes[77] and pushing down with a dorsiflexed foot.[78]  He said that he usually performs sensory testing using a pinwheel, or using touch.  He accepted that he made no note of performing such testing but maintained that he performed that testing nevertheless.[79]

   [76] ts 602.

   [77] ts 603.

   [78] ts 626.

   [79] ts 626 ‑ ts 627.

1. Mr Boothman did not recall Dr George asking him to walk on his heels and toes and said he would probably remember if he had been.  He also did not recall any sensory testing being performed.[80]  He did recall lifting his legs at one point.[81]

   [80] ts 155 ‑ ts 156.

   [81] ts 156.

2. Dr George's note of the consultation included the notation 'Right Bechterews mild neural tension. Gait OK.'.  This would suggest that Dr George administered a Bechterews test and observed Mr Boothman's gait.  Dr George said that it was his practice to observe a patient's gait when they first arrive to see if there are indications of clinical significance.[82]  The other tests that Dr George said he performed were not recorded in his notes. 

1. The extent of the initial testing performed

   [82] ts 602 ‑ ts 603.

1. Given the poor quality of Dr George's memory, the evidence that he gave of testing in addition to that which he recorded seemed to be evidence of his usual practice, rather than any particular memory of the treatment provided.  As I have already observed, I have reservations about making a finding based on Dr George's usual practice.  He may, or may not, have followed his usual practice on this occasion.

2. Further, Dr George's evidence about performing testing but not recording those tests, again seemed to be part of an attempt to defend his practices against the criticisms made by Dr Rinaudo.  This evidence appeared self‑serving.

3. Mr Boothman recalled lifting his leg at one point.[83]  While this might be consistent with Dr George pushing down with a dorsiflexed foot,[84] Mr Boothman's evidence in this regard is too vague for me to be satisfied that that was the case.

   [83] ts 156.

   [84] ts 626.

4. Mr Boothman did not recall being asked to walk on his heels and thought that he would have recalled this.  He did not recall any sensory testing being performed.[85]  Given this, I am not satisfied that Dr George performed the sensory testing that he said he did.[86]

D.     Treatment on the Leander table

1. Dr George's and Mr Boothman's evidence

   [85] ts 155 - ts 156.

   [86] ts 626 - ts 627.

1. Both Mr Boothman and Dr George agree that after Dr George took Mr Boothman's history and performed some tests, Dr George asked Mr Boothman to get onto the Leander table.[87]  They give different accounts of what the examination on that table involved.

   [87] ts 42, ts 156, ts 601.

2. Mr Boothman's perception was that Dr George did not provide any particular treatment while he was on the Leander table.[88]  He described Dr George moving the table up and down with Dr George's hands on his back.  He recalled telling Dr George that his 'glute' was spasming and Dr George lifting Mr Boothman's right leg off the bed so that his leg was in an L shape and his back was in 'hyperextension'.  He said that Dr George then moved his leg back down.[89]

   [88] ts 42.

   [89] ts 42.

3. Mr Boothman recalled Dr George telling him that he could not see or feel anything.  He recalls Dr George moved his thumb and placed it into his gluteus maximus muscle and moved the leg left to right, bent at the knee.  He said that Dr George's left hand was holding his right foot.  Mr Boothman said that at this point he heard and felt a pop and he let out a small sigh and Dr George said that he could not feel anything and did not notice any fasciculations (muscle twitching) and let go of Mr Boothman's leg.[90]

   [90] ts 42 ‑ ts 43.

4. Dr George described two parts to Mr Boothman's treatment on the Leander table.  He said that when Mr Boothman first got onto the table, he performed an assessment.  After this had been completed he said he applied flexion distraction treatment.[91]

   [91] ts 601, ts 637 ‑ ts 638.

5. Dr George said that the initial assessment was part of his pre‑treatment screening.  He said that he tilted the table from left to right while feeling the tone of the paraspinal muscles and the intrinsic muscles of the spine in the lumbar.  He described looking for a preferred treatment position in which the muscles were relaxed and not in spasm.  He said that because of the fasciculations, he wanted to see if there was anything positionally that he could use to indicate a preferred treatment position.[92]

   [92] ts 601.

6. Mr Boothman's evidence that Dr George was unable to identify and palpate the fasciculations is contradicted by Dr George's note of the consultation which records 'Fasciculations palpable - reduced on LLB'.[93]

   [93] Exhibit 40.31.

7. Dr George said that the notation 'LLB' means left lateral bending.[94]  He said that he found that things were a little worse if he bent to the right and a little better if he bent to the left.  He said that the muscle contractions were subtle but they got worse when he bent to the right.  He said that he observed mild neural tension which was indicative of tension in the nerve itself.[95]

   [94] ts 602 ‑ ts 603.

   [95] ts 602.

8. Dr George said that he did not perform a manoeuvre that fully hyperextended Mr Boothman's back.  He also denied that he lifted Mr Boothman's whole leg but he said he may have had Mr Boothman's ankle in his hand with Mr Boothman's leg bent at 90 degrees.  He said the Leander table was in a neutral position and he would have moved the leg several times.[96]

   [96] ts 653, ts 660.

9. Dr George said that Mr Boothman's pelvis was contacting the caudal section of the table and both innominate bones were in contact at all times with the table, so there was no lifting of either side of the pelvis during that manoeuvre.[97]

   [97] ts 671.

10. Dr George said that after he had completed his initial assessment, he applied flexion distraction treatment.[98]  This is consistent with his notes that record:[99]

    L4, PL-M, prone, FD left lat bend & Impulse.

    [98] ts 637 ‑ ts 638.

    [99] Exhibit 40.31.

11. It was put to Mr Boothman in cross-examination that Dr George massaged Mr Boothman at this point but Mr Boothman denied this.[100]  Although this was put to Mr Boothman, however, Dr George did not mention massaging Mr Boothman at this point when he gave evidence.  I am not prepared to find that such a massage was performed.

    [100] ts 159 ‑ ts 160.

12. It does not seem controversial that the impulse instrument was used at some point.  In cross‑examination, Mr Boothman recalled it being used but could not recall the order in which it was used but he thought it was during the examination described above, or before that examination.[101]

    [101] ts 158 ‑ ts 159.

13. Although Mr Boothman did not mention the table moving left and right, again this did not appear to be particularly controversial.  Mr Boothman did not say that the table did not move left to right.  Dr George would not have been able to observe a reduction of fasciculations on left lateral bending unless there had been lateral bending.  I am satisfied that Dr George moved the table left to right, as he said and I find accordingly.

1. Findings about treatment given on the Leander table

1. Dr George's notes provide support for his evidence that the fasciculations were palpable because the notes record as much.  I have already indicated that I am not satisfied that Dr George's notes were fabricated.  Further, given that the fasciculations were indicative of neural compromise, recording that the fasciculations were palpable if they were not would seem to be contrary to Dr George's interests.

2. Although Mr Boothman may have perceived that Dr George could not identify the fasciculations, Mr Boothman's ability to appreciate what Dr George had identified was limited to what he could observe lying face down on the table and what Dr George said. 

3. Ultimately, I prefer Dr George's evidence and the entry in his notes to Mr Boothman's recollection.  I am satisfied that it is more likely than not that Dr George was able to identify and palpate Mr Boothman's fasciculations and I find accordingly. 

4. As I have already said,[102] I do not consider it appropriate to make a finding about whether Mr Boothman's back was hyperextended or not.

   [102] See 156 above.

5. Otherwise, I am satisfied that Dr George applied flexion distraction therapy and then used the impulse adjusting instrument.  This is what is recorded in his notes and is broadly consistent with Mr Boothman's evidence.

E.     A discussion after the treatment on the Leander table

1. Whether Mr Boothman felt like he was in more pain

1. Whether Mr Boothman felt pain after the treatment on the Leander table was controversial.  Mr Boothman said he got up and noticed that he was in more pain than when he arrived.[103]  He gave a similar account in his statement.[104]

   [103] ts 43.

   [104] Exhibit 1, par 18.

2. Dr George did not recall Mr Boothman saying that he was in increased pain.  When he was asked whether he would expect to recall someone mentioning pain, he said it would depend on the nature of the pain and if it was mechanical pain he might modify the treatment and continue.  He said if he thought that a particular treatment had aggravated an injury, he might note down 'AGGR' in his notes.[105]

   [105] ts 606 - ts 607, ts 643.

3. I consider it more likely than not that Mr Boothman noticed that he was in more pain after the treatment on the Leander table.

4. Even if it is accepted that Dr George did not recall that Mr Boothman said something, given Dr George's poor memory, it is possible that Mr Boothman said something and Dr George has forgotten.

5. Although Dr George gave evidence that he might use the abbreviation 'AGGR' if he considered that an injury had been aggravated, he did not say that he would record a complaint of pain.[106]  He did not say that if Mr Boothman had reported pain, he would have been likely to have concluded that he had aggravated Mr Boothman's injury.

   [106] ts 606 - ts 607, ts 643.

6. Further, the possibility that Mr Boothman felt pain after the treatment on the Leander table explains why Mr Boothman and Dr George would have had the conversation about further treatment that they agree they had.

1. Mr Boothman's and Dr George's evidence about a discussion

1. Mr Boothman said after the treatment on the Leander table Dr George asked him to perform stretches, to touch his toes and move side to side.[107]  That this occurred did not seem particularly controversial.  Dr George did not mention whether he asked Mr Boothman to perform any stretches but he did not deny doing so.

   [107] ts 43.

2. Mr Boothman and Dr George agree that after the treatment on the Leander table they had a conversation about further treatment.  They disagree about who initiated that conversation and what was said.

3. Mr Boothman said that as he walked over to collect his keys and wallet before leaving, he said to Dr George that he had a funny feeling, a pain across his lower back.  He said that it was 'a bone on bone feeling and that he felt that he needed to be pulled apart'.  He said he laughed a little as he said this.  He said that Dr George replied that 'in these acute stages we shouldn't do anything like that'.[108]  Mr Boothman said that when Dr George mentioned not doing anything 'like that' Mr Boothman understood him to be referring to a side lying manipulation.[109]

   [108] ts 43.

   [109] ts 44.

4. Mr Boothman said that Dr George said we should just see how the treatment went and if it works great but if it did not, Mr Boothman should come back and they could try something else.  Mr Boothman said that when he went to grab his keys and wallet, however, Dr George said 'well, actually, before you go, let's just try something.  Come over here, left side down, let's see if we can give that a go.'.[110]

   [110] ts 43.

5. Mr Boothman gave a similar account in his witness statement.[111]

   [111] Exhibit 1, pars 19 ‑ 20.

6. Mr Boothman's account of the precise words used by Dr George varied.  In his evidence‑in‑chief Mr Boothman said that Dr George said he would 'try something'.[112]  In cross‑examination, Mr Boothman said Dr George said, 'well actually before you go, let's just try it'.[113]  In his statement, Mr Boothman also said that Dr George used the words 'let's just try it', although the same statement says he could not remember the exact words.[114]

   [112] ts 43.

   [113] ts 162.

   [114] Exhibit, par 21.

7. In his evidence-in-chief, Dr George said that after the first treatment, Mr Boothman asked him 'to perform the manipulation that he had done previously' but Dr George said that he was not prepared to do that because of the neurological findings.  He said that before Mr Boothman had left he had asked twice and Dr George said that he was not going to perform a manipulation but he could try to release some other soft tissue in the pelvis because in some cases that can help with symptomatic relief.[115]

   [115] ts 608.

1. Given the evidence, while I am satisfied that there is a chance that Mr Boothman will need spinal fusion surgery in the future, I find that it is only a small chance.  An assessment of the likelihood that surgery will be required is complicated by the fact that Dr Watson's evidence observed that there was some pre‑existing risk, without quantifying the extent of that risk.  I am satisfied, however, that the chance that such surgery may be required is not so small that it should be excluded for the purposes of assessing damages.

2. I will award a global sum of $12,500.00 for Mr Boothman's claims for future loss of earning capacity, future medical expenses and future services related to possible future spinal fusion surgery.

C.     Future medical expenses not associated with future surgery

1. Mr Boothman's claims

1. Mr Boothman claims a total of $185,214.99 for future medical expenses comprised of a number of items.  About half that sum relates to the cost of surgery which I have already dealt with.  The balance of those claims are as follows.

2. Mr Boothman claims a global amount of $5,000.00 for future facet joint injections and rhizotomies,[386] $2,500.00 for attendances on pain specialists[387] and $3,500.00 for radiological investigations.[388]

   [386] Amended Particulars of Damage, pars 5.15 - 5.16.

   [387] Amended Particulars of Damage, pars 5.17 - 5.18.

   [388] Amended Particulars of Damage, pars 5.19 - 5.21.

3. He relies on evidence from Dr Watson that he would need to attend his general practitioner four times a year.[389]  He claims the sum of $5,034.00 for four attendances per year for the balance of his life expectancy (42 years) calculated as follows:[390]

   $320.00 per year ($80 per attendance) ÷ 52 x 818 = $ 5,034.00.

   [389] Plaintiff's Closing Submissions, par 321.

   [390] Amended Particulars of Damage, pars 5.4 - 5.5.

4. Mr Boothman relied on evidence given by Dr Silbert that it was necessary for him to maintain a good level of physical fitness to reduce the load on his back.  He submitted that he was not attending functional Pilates prior to his injury but did afterwards.[391] 

   [391] Plaintiff's Closing Submissions, pars 309 - 312; ts 268.

5. Mr Boothman also relied upon evidence from Dr Watson that it was reasonable for him to attend a physiotherapist for his right calf strains and that the cramping in the right calf occurs as a result of the irritation from the nerve root and the scarring adjacent to the nerve root.[392] 

   [392] Plaintiff's Closing Submissions, par 313.

6. Mr Boothman claimed $35,337.60 for the cost of one session per week of functional Pilates for the rest of his life[393] and the cost of hiring a reformer machine for the rest of his life in the sum of $31,902.00.[394]  He also claims $1,000.00 for medication.[395]

1. Dr George's submissions

   [393] Amended Particulars of Damage, pars 5.22 - 5.25.

   [394] Amended Particulars of Damage, pars 5.26 - 5.27.

   [395] Amended Particulars of Damage, par 5.31.

1. Dr George submitted that Dr Silbert's evidence of the potential for further injections was predicated on the prospect of future deterioration in the disc and as Mr Boothman has not seen a pain specialist, there was no basis for a claim that he might need to see one.[396]  He submitted that future radiological investigation would be indicated only if there were new symptoms that may represent new pathology and Mr Boothman does not require radiological monitoring.[397]

   [396] Defendant's Quantum Submissions, pars 27 - 28.

   [397] Defendant's Quantum Submissions, par 29.

2. With regard to Mr Boothman's claim that he will need to consult his general practitioner quarterly, Dr George submitted that Mr Watson gave evidence that the fact that Mr Boothman had seen a general practitioner only twice in relation to the relevant injury suggested that he was having 'minimal problems ongoing'.[398]  Dr George also submitted that unless a general practitioner was prescribing medication, a general practitioner would provide 'much less clinical input' than a physiotherapist.[399]

   [398] Defendant's Quantum Submissions, par 19.

   [399] Defendant's Quantum Submissions, par 20.

3. With regard to Mr Boothman's claim for the cost of Pilates, Dr George submitted that it was desirable for Mr Boothman to undertake Pilates well before he suffered the relevant injury and he had been undertaking Pilates for several years before May 2019.  It was contended that the evidence does not establish an increased need for Pilates by reason of the relevant injury.  It was said that Dr Silbert did not consider long‑term Pilates classes to be required and considered a four to six week course could be followed by home-based exercises.[400]

   [400] Defendant's Quantum Submissions, pars 30 - 31.

4. It was contended that the claim for physiotherapy was predicated on Mr Boothman having a spinal fusion, that Dr Silbert did not consider that Mr Boothman required a gym membership and that given Mr Boothman has not taken medication at all in relation to his back pain since his immediate recovery from surgery in May 2019, there is no basis for any future award in respect of medication.[401]

1. Assessment

   [401] Defendant's Quantum Submissions, pars 32 - 36.

1. Dr Silbert's evidence was that Mr Boothman may benefit from L4/L5 facet joint injections followed by rhizotomies.  He thought that selective bilateral L4/L5 facet joint injections would identify whether the facet joints are the pain generator for his low back discomfort, or whether it is discogenic.[402]

   [402] Exhibit 9, answer to question 15, page 15.  See also ts 261.

2. While Dr Watson and Dr Lam did not express the same view as Dr Silbert, Dr Silbert's opinion was not put to them and they did not disagree with it.  As a neurologist, Dr Silbert was well qualified to express an opinion about the treatment of Mr Boothman's pain.  I am satisfied that Mr Boothman might have the treatment recommended by Dr Silbert.  Mr Boothman has received similar treatment in the past.

3. While there is limited evidence about the cost of such treatment, I am satisfied that it is reasonable to award a global amount of $7,500.00 for the cost of such treatment, including the cost of seeing a pain specialist.

4. I am satisfied that Mr Boothman has established a sufficient likelihood that radiological investigations might be required to warrant an award of damages.  Dr Silbert said that MRIs might be required if his low back pain increases.[403]  Dr Watson also said that radiological investigations might be required if new symptoms develop.[404]

   [403] Exhibit 9, answer to question 15, page 15; Amended Particulars of Damages, par 5.20.

   [404] Exhibit 32, answer to question 15, page 8.

5. The global claim of $3,500.00 made by Mr Boothman includes the cost of radiological investigations associated with future surgery.[405]  As I am not satisfied that such surgery is required, I will not allow the full amount claimed.  Instead, I will award a sum of $1,500.00.

   [405] Amended Particulars of Damages, par 5.19.

6. I am satisfied that Mr Boothman might require assistance from a general practitioner but I am not satisfied that he will likely require the four attendances per year claimed.  Dr Watson did say in his report that Mr Boothman might need to see his general practitioner twice a year.[406] As Dr George submitted, however, Dr Watson accepted in cross‑examination that the fact that Mr Boothman has seen his general practitioner less than that suggests that he is doing better than Dr Watson thought.

   [406] Exhibit 32, answer to question 15, page 8.

7. The evidence establishes that Mr Boothman has seen a general practitioner, albeit less than Dr Watson thought might be necessary.  It seems to me that it is reasonable to anticipate that Mr Boothman will need to see his general practitioner about his back once a year.  I award the sum of $1,258.46 calculated as follows:

   $80.00 per year ÷ 52 x 818 = $1,258.46.

8. I am not satisfied that the evidence establishes that Mr Boothman needs to perform Pilates because of his injuries, or that it would be necessary or likely for him to do so for the rest of his life.  Mr Boothman relied on evidence given by Dr Silbert that it was necessary for him to maintain a good level of physical fitness to reduce the load on his back.[407]  Dr Silbert was asked about Pilates and only said that a 4 - 6 week course was advisable and then home exercise would be sufficient.[408] 

   [407] Plaintiff's Closing Submissions, pars 309 - 312; ts 268.

   [408] ts 308.

9. I am satisfied that Mr Boothman may require analgesic medication to manage his pain symptoms.  Mr Boothman said that he prefers not to take some types of medication but he does take Panadol[409] and he also gave evidence that he is in discomfort every day.[410]  I am satisfied that Mr Boothman might need to take medication in the future.  I will award the full $1,000.00 claimed.

   [409] ts 113.

   [410] Mr Boothman: ts 58 - ts 59, ts 61.  See also, Exhibit 9, answer to questions 11 and 13, pages 14 - 15 and Exhibit 32, answer to question 11, page 7 and answer to question 13 on page 8.  Dr Watson: ts 435.

10. I therefore award the sum of $11,258.46 for future economic loss comprised of:

Item	Assessment
Future injections	$5,000.00
Pain specialist	$2,500.00
Radiological	$1,500.00
General practitioner	$1,258.46
Medication	$1,000.00
TOTAL	$11,258.46

D.     Future loss of earning capacity

1. Mr Boothman claims a total of $103,908.00 for future loss of earning capacity.  Of that sum, $28,908.00 is associated with loss of earnings for 12 weeks following spinal fusion surgery that I have already discussed.[411]  The balance of that sum is a global amount (inclusive of superannuation) of $75,000.00 claimed on the basis that Mr Boothman's injury will restrict him from progressing his career into a judicial role and to reflect the risk of degeneration and recurrence, his ongoing physical symptoms and the permanent restrictions on his competing in the open workforce.[412]

   [411] Amended Particulars of Damage, par 4.3.

   [412] Amended Particulars of Damage, pars 4.4 - 4.7.

2. With regard to Mr Boothman's capacity to fulfill a judicial role, Mr Boothman relied on evidence from Dr Silbert that if Mr Boothman had to sit all day, he might require a disc fusion.[413]

   [413] Plaintiff's Closing Submissions, par 318.

3. Dr George submitted the evidence does not establish that there is any likelihood that Mr Boothman would engage in heavy physical or manual labouring occupations and in any event, his pre-existing back injury would have made him unfit for such an occupation.  It was submitted that there was no evidentiary basis for an assertion that Mr Boothman may become unfit for work as a lawyer or a judge.[414]

   [414] Defendant's Closing Submissions, pars 176 - 177.

4. I am not satisfied on the evidence before me that there is a real prospect that Mr Boothman might be offered judicial appointment in the future.  While there is evidence that Mr Boothman is qualified as a lawyer, in my view, proof that Mr Boothman is a lawyer does not establish that there is a real prospect that he might be offered a judicial appointment.  There is no automatic progression from lawyer to judge.

5. Nor am I satisfied that the evidence establishes that Mr Boothman would be incapable of fulfilling a judicial role if he was offered one.  Dr Silbert did not say that Mr Boothman would be incapable of fulfilling such a role.  He said that protracted sitting might increase the chance of Mr Boothman requiring fusion surgery.  I have already found that the chance of such fusion surgery is small and have made allowance for that chance.

6. I am satisfied and find that Mr Boothman is incapacitated from undertaking heavy work, or manual labouring.  This was Dr Watson's opinion.[415]  I accept his evidence in this regard.  As Dr George submitted however, such work may have been inadvisable before Mr Boothman saw Dr George.[416]  Both Dr Silbert[417] and Dr Watson[418] appear to have thought so.

   [415] Exhibit 32, answer to question 20, page 9.

   [416] Defendant's Closing Submissions, par 176.1.3.

   [417] ts 309.

   [418] ts 423.

7. While I accept that there is a risk that Mr Boothman's injury might deteriorate, the expert evidence suggests that if this were to happen, he would have spinal fusion surgery.  The evidence does not establish that this could cause him a permanent loss of earning capacity.

8. In these circumstances, I am not satisfied that Mr Boothman is entitled to any further award of damages for future loss of earning capacity.

E.     Aids and appliances

1. Mr Boothman claims the $800.00 cost of a sit/stand desk he purchased.[419] 

   [419] Amended Particulars of Damage, par 6.

2. Dr George submitted that there is no expert evidence that Mr Boothman requires a sit/stand desk at home by reason of his injury.[420]

   [420] Defendant's Quantum Submissions, par 37.

3. Mr Boothman gave evidence that after the surgery in May 2019 his workplace purchased a sit and stand desk at work for him.  He said that when he had to work from home during COVID, he purchased a sit stand desk from Ikea for this purpose.[421] 

   [421] ts 62.

4. I am satisfied that Mr Boothman purchased the desk to assist in managing his back problems while working from home.  It was necessary for him to use such a desk at work and I am satisfied that he needed one to work from home too.  I am satisfied that he is entitled to recover the $800.00 he spent.

F.     Past services and interest

1. Mr Boothman's claims

1. Mr Boothman claims a total of $27,146.72 for past gratuitous services. 

2. He claims for 30 hours totalling $990.00 for the period between 18 May 2019 and 25 May 2019 for assistance provided by his wife, mother and mother-in-law with showering and performing tasks involving meal preparation, cooking and domestic chores.[422]

   [422] Amended Particulars of Damage, par 7.1.

3. He claims 15 hours per week totalling $5,940.00 for 3 months gratuitous assistance following discharge from hospital, 5 hours per week for the next 15 weeks, totalling $2,475.00 and then 1 hour per week totalling $7,211.72 for the period between 2 December 2019 and 1 October 2023.[423]

   [423] Amended Particulars of Damage, pars 7.2 - 7.16.

4. He also claims the sum of $10,530.00 for a cleaner[424] and the sum of $3,583.36 for interest on past services.[425]

   [424] Amended Particulars of Damage, par 7.17.

   [425] Amended Particulars of Damage, par 8.

5. Mr Boothman relies on evidence that he gave about his condition after Dr George's treatment but before surgery, his condition after the surgery, his continued limitations and comments made by Dr Silbert and Dr Watson.[426] 

1. Dr George's submissions

   [426] Plaintiff's Closing Submissions, pars 324 - 332.

1. Dr George submitted that Mr Boothman did not require any significant gratuitous services as a result of the injury to his disc at L4/L5. It was submitted that by the time Mr Boothman was seen by Dr Lam on 27 June 2019, he was found to have minimal radicular pain, he did not require analgesics and he had only mild residual right L5 weakness. It was contended that it was recommended that he should gradually increase his exercise and Mr Boothman was fit for work within nine days of his surgery. It was said that even if Mr Boothman required some assistance with showering and transport during the period immediately following his surgery, the value of those gratuitous services would fall well short of Amount B in s 12 of the Civil Liability Act.[427]

1. Assessment

   [427] Defendant's Quantum Submissions, pars 38 - 43.

1. I am satisfied that Mr Boothman required the assistance from family members and a cleaner as he has claimed.  Mr Boothman said as much during his evidence[428] and I am not prepared to reject that evidence on the basis of observations made by Dr Lam.  This is particularly so because both Dr Silbert and Dr Watson accepted that Mr Boothman would have required assistance.  I will allow the amount claimed.

G.     Future assistance not associated with surgery

[428] ts 59 - ts 60.

1. Mr Boothman also claims a global amount of $10,000.00 for future paid and gratuitous services not associated with any future surgery.[429]

   [429] Amended Particulars of Damage, pars 9.6 – 9.8.

2. Dr George submitted that the evidence does not establish any requirement for paid and gratuitous services as a result of the injury to Mr Boothman's disc at L4/L5.  It was said that prior to 18 May 2019, it was inadvisable for Mr Boothman to carry out heavy work having regard to his degenerated discs in his lumbar spine and his previous surgery at two levels. [430]

   [430] Defendant's Quantum Submissions, par 44.

3. Mr Boothman gave evidence that he still needs assistance with gardening and maintenance once a fortnight to once a month and his mother-in-law assists with household chores every Wednesday.[431]  These were activities that Mr Boothman performed before his injury.  I accept Mr Boothman's evidence.

   [431] ts 60.

4. I am satisfied that Mr Boothman is entitled to the sum claimed.

H.     Past and future travel expenses

1. Mr Boothman claims the sum of $307.45 for past travel expenses as set out in a travel schedule[432] and the global sum of $1,250.00 for future travel expenses.[433]

   [432] Amended Particulars of Damage, par 10 and Exhibit 3.

   [433] Amended Particulars of Damage, par 11.

2. Dr George did not concede that all of the travelling set out in the schedule was necessitated by reason of Mr Boothman's injury and says that the schedule should be considered having regard to the expert evidence about Mr Boothman's post-surgical therapy.  Dr George submitted that there was no basis for Mr Boothman's claim for future expenses.[434]

   [434] Defendant's Quantum Submissions, pars 45 - 46.

3. Mr Boothman gave evidence that all of the items in the travel schedule related to him seeking treatment for his lower back.[435]  I accept that evidence and find accordingly.  I am satisfied that Mr Boothman is entitled to recover these costs.

   [435] ts 68.

4. I accept that there is a basis for Mr Boothman to incur future travel costs relating to the further treatment that I have said he might require.  I am satisfied that he is entitled to recover the $1,250.00 for future travel expenses he claims.

1. Wilson v McLeay

1. Mr Boothman claims the global amount of $500.00 for the cost of family visits to the hospital.[436]

   [436] Amended Particulars of Damage, par 12.

2. Dr George submitted that no evidence was called as to the number and length of attendances, he also noted that the sum claimed is $500.00.[437]

   [437] Defendant's Quantum Submissions, par 48.

3. While it is true that evidence relating to the amount of these damages claimed was not called, the amount claimed was modest.  It seems likely to me that costs in this sum would easily have been incurred and I am prepared to award the amount claimed.

J.      Special damages

1. Mr Boothman claimed out-of-pocket expenses of $23,891.90 including recovery by Mr Boothman's private health insurer (BUPA) and Medicare.[438]

   [438] Amended Particulars of Damage, par 13.

2. Dr George submitted that the documentary evidence supplied in relation to special damages must be considered having regard to the expert evidence as to Mr Boothman's need for the relevant treatment and services.  It was submitted that Mr Boothman has accessed far more clinical Pilates than Dr Watson or Dr Silbert would consider to be required on account of his injury at L4/L5.[439]  It was contended that the notices issued by BUPA and Medicare were not in themselves proof of an entitlement to particular special damages.  It was said that the expenses listed in such notices must be found to have been incurred by reason of the relevant injury.

   [439] Defendant's Quantum Submissions, par 49.

3. The items claimed by Mr Boothman are for medical treatment, physiotherapy or massage, not Pilates.  Dr George's submissions did not submit that such costs would not be recoverable. 

4. I consider that Mr Boothman is entitled to compensation for these costs and for his liability to reimburse BUPA and Medicare. 

K.     Non-pecuniary loss

1. Additional findings of fact

1. In assessing non-pecuniary damages I have taken into account events between 19 May 2019 and 25 May 2019.  Those events are addressed in Part I.B.17 to I.B.22 above.  I will not repeat what was said there.  In addition, I make the following further relevant findings.

1. Mr Boothman was in hospital for two nights.[440]

   [440] ts 57.

2. It took Mr Boothman three months of exercising regularly[441] to be able to walk again properly, albeit with a different gait.[442]  It took him six months to walk as close to normal as he is currently able.[443]

   [441] ts 59.

   [442] ts 57.

   [443] ts 59.

3. It took Mr Boothman six months before he was able to drive a car.  He needed assistance with showering, dressing and daily chores.  His father‑in‑law assisted with handyman duties.[444]  He gave evidence required assistance with cleaning.[445] 

   [444] ts 59.

   [445] ts 60.

4. After the surgery the pain Mr Boothman had been experiencing before the surgery resolved but he still has residual back pain.  His back pain is worse than before and he is in discomfort every day.  The lateral side of his right leg down to his toes is numb.  He gets cramps in his leg.  He said that he has numbness which makes it difficult for him to run and he has a tendency to have calf tears.  He also has difficulty surfing.[446]

   [446] Mr Boothman: ts 58 - ts 59, ts 61.  See also, Exhibit 9, answer to questions 11 and 13, pages 14 - 15 and Exhibit 32, answer to question 11, page 7 and answer to question 13 on page 8.  Dr Watson: ts 435.

5. Mr Boothman's low back pain arising from the L5/S1 segment.  The loss of disc material as a result of the disc protrusion/extrusion and surgery puts a strain on the posterior facet joints at the L4/L5 level, together with pain from the disc itself.[447]  He has a 15% whole of person impairment of the lumbar spine, which includes the right nerve root injury.[448]

   [447] Exhibit 9, answer to question 10, page 14.

   [448] ts 431 - ts 432.

6. There is no specific treatment available for Mr Boothman's chronic right L5 radiculopathy.  He needs to maintain optimal fitness and weight.[449]

1. Assessment

   [449] Exhibit 9, answer to question 15, page 15 and Exhibit 32, answer to question 14, page 8.

1. Taking into account these matters and the matters addressed in Part I.B.17 to I.B.22 above, it seems to me that $90,000.00 is a fair and reasonable award for general damages. 

2. From this sum, s 9(3) of the Civil Liability Act requires that I deduct a sum calculated according to the formula: Amount A - (Amount assessed - Amount C).  The amount to be deducted according to this formula is $1,500.00 calculated as follows:

   $23,500.00[450] - ($90,000.00 - $68,000.00[451]) = $1,500.00.00.

   [450] Amount A.

   [451] Amount C.

3. I therefore assess general damages as $88,500.00.[452]

L.     Summary of damages assessment

[452] $80,000 - $11,500 = $68,500.

1. In summary, I assess damages as follows:

Item	Assessment
Past economic loss and interest	$400.00
Future loss of earning capacity and future care (associated with surgery)[453]	$12,500.00
Future medical expenses	$11,258.46
Aids & appliances	$800.00
Past services and interest	$27,146.72
Future services (not associated with surgery)	$10,000.00
Past travel expenses	$307.45
Future Travel Expenses	$1,250.00
Wilson v McLeay	$500.00
Special Damages	$23,981.80
General damages	$88,500.00
TOTAL	$176,644.43

[453] Including future medical expenses associated with spinal fusion surgery.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

FN

Associate to Judge Palmer

30 APRIL 2024