Brookes v Rohanna Pty Ltd

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BROOKES -v- ROHANNA PTY LTD & ANOR [2004] WADC 114

CORAM: WISBEY DCJ

HEARD: 19-21, 24-26 NOVEMBER 2003

DELIVERED : 4 JUNE 2004

FILE NO/S: CIV 2829 of 2000

BETWEEN: MICHAEL LAWRENCE BROOKES
Plaintiff
AND
ROHANNA PTY LTD
First Defendant
MITSUBISHI MOTORS AUSTRALIA LTD
Second Defendant/Third Party

Catchwords:

Negligence - Duty of care - Plaintiff alleging personal injury as result of malfunction of transmission of motor vehicle - Vehicle manufactured by second defendant and sold to plaintiff's employer by first defendant - Vehicle subsequently serviced by first defendant - Whether incident reasonably foreseeable - Causation

Legislation:

Nil

Result:

Claim dismissed

Representation:

Counsel:

Plaintiff:    Mr G Droppert
First Defendant  :    Mr D R Clyne
Second Defendant/Third Party   :    Mr M H Zilko

Solicitors:

Plaintiff:    Ilberys
First Defendant  :    Basile Hawkins
Second Defendant/Third Party   :    Jackson McDonald

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

St George Club Ltd v Hines (1961) 35 ALJR 106
Tame v State of New South Wales (2002) 211 CLR 317

Case(s) also cited:

Crombie v Uniting Church in Australia Property Trust (WA) (1997) 17 WAR 291
Graham Barclay Oysters Pty Ltd v Ryan (2003) A Tort Rep 81-681
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Van Gervan v Fenton (1992) 175 CLR 327
Vozza v Tooth & Co Ltd (1964) 112 CLR 316
Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460
Wyong Shire Council v Shirt (1980) 146 CLR 40

WISBEY DCJ: The plaintiff, who was born on 3 February 1955, and was at the relevant time employed as general manager of his brother's maintenance service company, claims damages against the first defendant trading as Skipper Mitsubishi, and the second defendant Mitsubishi Motors Australia Ltd.
Insofar as is relevant to the cause of action, the statement of claim relevantly provides that:
(a)In or about July 1996 the second defendant manufactured a Mitsubishi Altera V6 automatic sedan, (hereinafter called the Mitsubishi) and supplied it to the first defendant.
(b)The first defendant sold the Mitsubishi to the plaintiff's employer in or about July 1996, and thereafter serviced it on three occasions prior to 22 June 1999; being 7 March 1997, 28 October 1997 and 24 September 1998.
(c)Prior to 22 June 1999 the second defendant received at least 10 customer complaints relating to the performance of automatic transmissions in that particular model Mitsubishi, and had advised the first defendant in writing as to rectification procedures to be followed upon receipt of a complaint relating to the automatic transmission.
(d)The first defendant had been advised by drivers of the Mitsubishi that its transmission would sometimes shudder when under acceleration in drive, thump when coming to a stop, and on an irregular basis thump into gear when drive was engaged.
(e)On 22 June 1999 the plaintiff delivered the Mitsubishi to the first defendant for servicing, and although it was then ascertained that the automatic transmission and the ECU required replacement, the vehicle was returned to the plaintiff without rectification.
(f)On 28 June 1999 the plaintiff reversed the Mitsubishi from a parked position, and moved the automatic transmission gear control into drive, whereupon the Mitsubishi lurched forward, causing the plaintiff to sustain a spinal injury.
Although the claim against each defendant was formulated in contract and tort, it was conceded at trial that there was no contractual relationship between the plaintiff and either defendant, and that the claim against each was founded in negligence.

The evidence

The plaintiff

The plaintiff stated that he lived at Ravenscliffe Road, Kirup, which as the evidence unfolded, turned out to be incorrect. I found his explanation in respect of that, difficult to understand and/or accept. He stated that he was in a de facto relationship.
Dealing with his pre‑accident medical history, he stated that as a result of a motor cycle accident in his mid 20's he had undergone a fusion of the right ankle which interrupted his working life for the best part of two years and required 14 or 15 operations. His right leg is approximately one millimetre shorter than the left, but otherwise there are no functional problems. He had been trained as a bricklayer/carpenter, and had in the past experienced occasional low back pain associated with that vocation. He stated that when living in Queensland he suffered regularly from "tropical ear" which condition resulted in pain from the ear radiating down to the jaw causing right sided headache. When asked whether he had ever had difficulty with headaches prior to June 1999 independently of that problem he responded "No, certainly nothing like what I have now." When asked to clarify that statement he said:
"I have had the odd headache from working in the sun for too long or having a few too many drinks perhaps, but pretty well the same as everybody else, I guess."
He stated that the headaches were treated with aspirin.
The plaintiff's pre‑accident work history included bricklaying and carpentry, maintenance work with Dillingham Jennings and Mainline; running a lattice craft company; and working for Brookes Maintenance Service as a supervisor, team leader, and general manager. He ceased employment with Brookes Maintenance Service in February 2000, and immediately before termination had a salary of $75,000, the full use of a serviced vehicle, paid telephone calls, and received the statutory superannuation contribution. The vehicle, which was the Mitsubishi, was purchased by Brookes Maintenance Service for the use of the Managing Director, Mr Ron Brookes, was passed onto his wife, the then General Manager, Mr John English, and finally in January 1999 to the plaintiff who had sole use of it up until the incident.
The plaintiff stated that his experience with the Mitsubishi was that it would shudder under acceleration, and occasionally changed down gears in a banging or clunking manner. There appeared to be a loss of power from the transmission to the drive shaft. In addition, it would thump into drive from reverse or park. As a result the plaintiff exercised additional care when driving it.
The first time the plaintiff had anything to do with the servicing of the Mitsubishi was on 21 June 1999 when he arranged for the appropriate employee at Brookes Maintenance Service to book it in with the first defendant for the 50,000 kilometre service, and specifically to address the transmission problem. The service order dated 21 June 1999 (Exhibit 1) identified the service request as "50,000 service and repairs to transmission to 9HT919". The plaintiff delivered the Mitsubishi to the first defendant's service centre at 8.00 am on 22 June 1999, and was told he could collect it at 3.00 pm. He spoke at length to the service manager, Mr Craig Nilander, about the transmission problem, which he claimed had been referred to at previous services and not rectified, and which was getting progressively worse. Mr Nilander made a notation of the plaintiff's complaints on the first defendant's service record. That record (Exhibit 2) contained the following entry in respect of the Mitsubishi:
"45,000 kilometre service… check auto transmission fault. … thumps into gear when pulling up to a stop. Also when selecting drive after reverse bangs into gear (hot or cold). Note: this fault has been reported several times before please check thoroughly."
The plaintiff stated that when he called back at 3.00 pm to collect the vehicle he spoke again with Mr Nilander who:
"told me that the transmission was buggered basically and needed to be replaced along with the computer. He made several mentions of the cost. I believe it was $8,000…He didn't at any time tell me that the vehicle was dangerous. He gave me the keys and away I went."
Mr Nilander told the plaintiff that it could take up to 8‑12 weeks before the first defendant could obtain the parts necessary to enable repairs to be completed.
Late in the afternoon of 28 June 1999 the plaintiff got into the Mitsubishi in the work premises car park at 4 Babel Road, Welshpool. He reversed out of the car bay, brought the vehicle to a halt, and engaged drive. Nothing happened for several seconds, and then it slammed into drive and jumped forward. He slammed his foot onto the brake and was thrown forward as the Mitsubishi stopped. The plaintiff's right foot was hovering above the brake before the Mitsubishi moved forward, but he stated that he had not applied the accelerator. He indicated that when he started the Mitsubishi it appeared to be revving excessively. When asked to describe carefully the vehicle movements, the plaintiff said:
"The car suddenly moved forward. I've no idea what forces were involved with the car very suddenly moving forward. I was thrown backwards. When I hit the brakes I was thrown forwards. I don't recall hitting the head rest. I don't recall hitting my chin onto my chest. All I recall is that after it happened I had a sharp searing pain in the back of my neck."
He claimed the Mitsubishi jumped forward violently two or three feet. The plaintiff stated that he parked it and went into the office and reported the incident to the Human Resources Manager. He did not attend a scheduled site meeting because he was in pain. He stated that he was urged to go and see a doctor.
The plaintiff said that the next day he rang Mr Nilander and told him what had happened, stating particularly that the Mitsubishi was becoming progressively worse, and had never before done that which happened on this occasion. About a week later he again rang Mr Nilander and stated that he was considering taking legal action. That prompted the first defendant to install a new transmission in the Mitsubishi within several days, which rectified the problem.
A week after the incident on 5 July 1999 the plaintiff attended Dr La Grange at the Care Point Industrial Medical Centre opposite his work, was prescribed anti‑inflammatory medication, and had some brief massage to his neck which was discontinued because it was too painful. At that time the plaintiff had a very sore neck, with pain radiating into the right shoulder blade, and paresthesia down the arm. As a consequence he attended upon a chiropractor, Mark Yaksich, several days later. He was unable to recall how many times he saw Mr Yaksich, but stated that application of ice packs was the predominant treatment. Radiological examination was also undertaken. Mr Yaksich referred the plaintiff to a Dr Turner, who he consulted on 20 August 1999. During this period, neck pain and accompanying symptoms were increasing, The plaintiff also stated that he was suffering minor headaches at the back of the head just above the neck, although he was unsure whether it was a headache or neck pain. He stated that Dr Turner provided some very light manual treatment to his neck whilst he was lying on a couch, but without any remedial consequence.
Dr Turner referred the plaintiff to a neurosurgeon, Mr Bannan, who he saw in September 1999, by which time the neck pain was considerably worse and radiated into the right shoulder blade, and down the right upper limb into the thumb and two forefingers. The plaintiff described the neck pain as a burning fire at the back of his neck. Mr Bannan carried out some sophisticated diagnostic procedures which disclosed a disc protrusion at C5/6 necessitating an anterior cervical fusion on 15 November 1999. The plaintiff stated that the fusion procedure eliminated the neurological problems in the right arm, although he was still left with a pretty sore neck. He was off work for several weeks following surgery, and then worked on until late February 2000, although he claimed that he was taking quite a lot of time off due to neck pain and headaches.
Brookes Maintenance Services was sold in February 2000, and the plaintiff did not continue with the new owner, choosing instead to assist his brother in work that he had in Mozambique. The plaintiff accompanied his brother to Mozambique on two occasions, the first being in March or April 2000.
At Easter 2000 (21‑24 April) the plaintiff and his partner, Jennifer Downing, whom he met on or about 30 September 1999, drove to Exmouth, the trip taking about a week. He stated that his condition wasn't too bad on the way to Exmouth, but he experienced extremely bad headaches on the return journey, which have continued unabated. Upon his return from Exmouth the plaintiff consulted both Dr Turner and Mr Bannan. The headaches that he experienced returning from the Exmouth trip and subsequent thereto were a thousand times worse than any he had ever before experienced, and consequently Mr Bannan referred him to a neurologist, Dr Silbert.
Prior to the first trip to Mozambique Dr Silbert gave the plaintiff a nerve block injection which eliminated the headaches for a short period of time enabling him to cope reasonably well in Mozambique. The position was different on the second trip when he was unable to handle his vocational obligations because of his symptoms. The plaintiff stated that he had a second course of injections from Dr Silbert without much benefit, although he did not believe that at that time his condition was as bad as it had been previously.
The plaintiff indicated that Dr Turner prescribed predominantly Panadeine Forte, Aspirin, Maxolon, and on several occasions Pethidine. He also had some physiotherapy which aggravated his condition.
The debilitating headaches and considerable neck pain radiating into the right shoulder prevent the plaintiff undertaking activities necessitating the use of his hands in front of his body, such as washing up, gardening, vacuuming, and certain types of housework. The plaintiff described his present headache as a fairly constant monster headache situated in the right temple area and behind the right eye. Apart from the monster headaches he had what he described as a constant background headache at the back of the head.
Presently the plaintiff is taking slow release morphine, and a sleeping tablet Clonazepam. He is on a disability pension. He produced a schedule of expenses which he stated had been incurred in connection with his injury treatment (Exhibit 3), and a book of economic documents (Exhibit 4). The plaintiff stated that prior to the incident he participated in a fair amount of boating, scuba diving, deep sea fishing, and golf, but was now unable to engage in those activities, or go out socially. His partner attended to all the domestic duties. He said that he can only drive for a period of between 15 and 30 minutes. He claimed that his typical day was to wake up, have a cup of tea and a little breakfast, and then sit on the couch and watch Foxtel, rarely venturing out of the house.
He claimed that his partner averaged between 7‑10 hours a week caring for him.
The plaintiff agreed with the proposition put to him by his own counsel that he was aware of the problem with the automatic transmission, and notwithstanding elected to drive the Mitsubishi on 28 June 1999.
Cross‑examined by counsel for the first defendant, the plaintiff confirmed that pre‑incident he had experienced occasional low back ache and minimal headaches. He agreed that prior to the incident he had from time to time visited Dr Mina Moussa at the Care Point Medical Practice in respect of ear infections, and had some significant knee problems in or about March 1997 requiring keyhole surgery. He denied having experienced significant headaches, or consulting a neurosurgeon in respect thereof. He stated that had he experienced some headaches associated with ear infection. He had no recollection of attending the surgery on 3 November 1997 complaining of a 36 hour migraine, nor of attending for prescriptions of Codalgin Forte. He agreed that in or about May 2000 a general practitioner, Dr Burkett, referred him to a cardiologist, Dr Woollard, because he was experiencing angina. He conceded to having had several heart attacks, and undergoing bypass surgery at the Mount Hospital. He agreed that when the firm Brookes Maintenance Service was sold on or about 1 March 2000 the majority of the employees remained, but he elected not to do so.
On 23 May 2000 the plaintiff was involved in what he described as a minor rear end motor vehicle collision.
The plaintiff stated that his partner and himself moved to a rural property at Kirup on 11 June 2001, and shortly thereafter he experienced chest pain and attended the Donnybrook Hospital. Since then any physical exertion brings on breathlessness. When questioned about the trips to Mozambique the plaintiff stated that he found the situation too stressful and he wasn't able to maintain the vocational pace required. He agreed that he smoked marihuana, stating that it had a similar effect to morphine, but was less harmful. He confirmed that he had driven the Mitsubishi from Christmas 1998 until the incident; was aware of the transmission problem; and although it was getting progressively worse did not consider it dangerous. When questioned specifically concerning the incident, the plaintiff stated that although the Mitsubishi had previously thumped into gear after drive had been selected, it had never before performed as it did on 28 June 1999 or he would not have driven it.
When cross‑examined by counsel for the second defendant the plaintiff stated that he instructed solicitors to act on his behalf within a week or fortnight of the incident, and told Dr La Grange several days after the incident that the consultation should be regarded as workers' compensation related. He agreed that he would have seen Dr La Grange on 5 July 1999 and complained about a sore neck, asserting that he had a minor whiplash injury some eight days previously. He was adamant that he experienced neck pain immediately following the incident.
In respect to the circumstances of the incident, he agreed that previously the manifest transmission problem was a one to two second pause before drive was engaged, and the Mitsubishi would begin to creep forwards, but it had never before suddenly lurched forward. His recollection was that he rang Mr Nilander some three to five days after the incident threatening legal action in respect of his injuries, but claimed that was a scare tactic to get a new transmission fitted.
Counsel produced letters from the plaintiff's solicitor in which a description of the incident (inter alia) was:
"that our client…placed the shift stick into drive at which time the transmission had not engaged, as a consequence of which our client then placed his foot on the accelerator causing the vehicle to suddenly lurch forward without warning."
The plaintiff disagreed with that description, stating that he had not put his foot on the accelerator prior to the vehicle lurching forward.
He stated that prior to the incident his ingestion of Codalgin Forte was referable to recurrent ear problems. For whatever reason, it appeared that the plaintiff's recollection of his pre‑incident headache history was extremely vague. He was adamant that he told Dr La Grange at the first consultation that he experienced neck pain immediately after the incident, and his recollection was that Mr Yaksich simply applied ice packs to his neck, and did not undertake manipulative procedures.
When discussing his vocational plans subsequent to resigning from Brooks Maintenance Services, the plaintiff stated that he was working with his brother developing an industrial park at an aluminium smelter at Maputo in Mozambique and was to be the on the spot coordinator, but because of pain and the effects of medication, was not able to handle that task. He claimed that the financial arrangement was that he would be on a percentage rather than a fixed salary. Since withdrawing from the Mozambique arrangement the plaintiff has not endeavoured to obtain any employment. When it was put to him that there was potentially big money in the Mozambique contract the plaintiff responded "I think you'd be luck to break even."

The plaintiff was cross‑examined concerning financial information in his taxation returns which he described as tax effective investments, and his evidence suggested a casual regard for his statutory fiscal responsibilities, and a lack of candour generally in respect thereof.
In re‑examination the plaintiff stated that the symptoms of severe headaches and fairly severe neck and shoulder pain did not alter as a result of the accident 23 May 2000.

Michael Arthur Lee

Mr Lee, a neurosurgeon, reviewed the plaintiff on 22 March 2002, and his report bearing that date was received in evidence (Exhibit 6). Having recounted the history, Mr Lee expressed the view that in the absence of prior symptomatology, and assuming that there were persistent symptoms since the incident, there was little doubt that the disc protrusion was a consequence of the incident. He reported that:
"In order for a disc protrusion such as had occurred, to have occurred, significant force would have to be applied to the neck. It is unlikely that C5/6 level was the only level that was damaged though the disc protrusion was the more obvious manifestation of the injury."
Mr Lee referred to the almost constant retro‑orbital and occipito‑frontal headaches developing in conjunction with the Exmouth trip, and suggested that the persisting symptoms reflected the other problems relating to the injury on 28 June 1999. He recorded that the plaintiff complained of a continuing background headache upon which episodes of severe incapacitating occipito‑frontal and retro orbital pain were superimposed. In addition the plaintiff complained that he still experienced pain in the right side of his neck radiating to the medial aspect of the right scapular. Mr Lee did not believe that the plaintiff was fit to work, and felt that it was difficult to see that situation changing without amelioration of symptoms.
In his oral evidence Mr Lee stated that the temporal nature of the development of symptoms following the incident suggested a direct causal relationship. He accepted that the headaches were a product of the injuries received in the incident, but that appears to be based to some extent on the reported absence of significant headaches pre‑incident. When asked what his view would be if there was a pre‑incident history of some significant headaches, Mr Lee stated that it would be relevant to his assessment, in that the presenting problems may be a recurrence of the earlier problem, or the incident may have exacerbated a pre‑existing condition. Mr Lee appeared to be of the view that the incident would not have been sufficient to cause protrusion of a normal disc. He commented that if the presentation of severe headaches occurred some months after the incident, their relationship to the incident was questionable.

Paul Elliott Bannan

Mr Bannan, a neurosurgeon, saw the plaintiff in September 1999 on referral from the general practitioner, Dr Turner, and his reports were received in evidence (Exhibit 7.1 to 7.7).
In the 21 September 1999 report he referred to the circumstances of the incident, and the history that thereafter the plaintiff had experienced neck pain extending down the right upper limb. Mr Bannan arranged an MRI examination which demonstrated a large disc protrusion at C5/6 with a disc fragment behind the body of C6 causing compression of the right C6 nerve root. As a consequence he carried out a cervical fusion at the Mount Hospital on 15 November 1999, and in his report of 7 December 1999 recorded:
"He can do his own physiotherapy, in fact, he is currently back at work full time without any significant problem. Mr Brookes is working as a building maintenance manager. As far as I understand, he is successfully working 40 hours a week without any problem with respect to neck or arm pain."
Subsequent to surgery, and the emergence of significant headaches, Mr Bannan referred the plaintiff to a neurologist, Dr Silbert, and agreed with his conclusion that the headaches were cervicogenic rather than migrainous in nature.
In his report of 26 June 2003 Mr Bannan observed that the plaintiff had responded well following the cervical fusion, right arm pain having resolved, although with the subsequent development of headache.
In his evidence in chief Mr Bannan made reference to the plaintiff's history of the onset of neck and right arm pain following the incident, which had been ongoing up to the time of his first consultation. He was referred to a statement he made in his report of 16 May 2000 that:
"He is complaining of headache symptomatology, particularly behind his right eye, with watering of his eye and redness. It does suggest some form of cluster headache."
and stated that the described symptoms were typical of migraine, and at that stage didn't think it was directly related to the surgery. It is quite clear that he considered that the headaches presented diagnostic difficulties.
When asked to address the causal connection between the incident and the disc prolapse Mr Bannan said:
"Some people, you know, don't have any precipitating incident. They just complain of neck pain. They can't tell you how it happened. So if the patient is a reliable witness and he says that he had this hyper extension injury to his neck and then the neck and arm pain started, I take him at his word because as mentioned sometimes there is no history from the patient of any incident that precipitates that pain. That is, some people wake up with it."
Mr Bannan stated that his first record of a complaint of headaches was on 16 May 2000, some six months post‑surgery. He agreed in cross‑examination that redness and watering of the eye, and accompanying headache, was classical of cluster headache. He stated that if the headaches were coming from the C2/3 area thus affecting the greater occipital nerve, one would expect the pain to run from the neck up to the top of the head, and not as far forward as the eye.

Jennifer Vivien Downing

Ms Downing, the plaintiff's partner, met him in September 1999. Early in the relationship they appeared to have a very full and active social life, and she described the plaintiff as very strong and happy go‑lucky. The relationship developed, and they commenced living together in February 2000. Before they began living together the plaintiff made very few complaints of physical symptoms. Ms Downing confirmed that she and the plaintiff drove to Exmouth and back during Easter 2000, sharing the driving.
She became aware that the plaintiff was having significant problems on her daughter's birthday on 14 May 2000 when they attended a Mexican restaurant. The plaintiff complained of a headache, became very pale, and was nauseous. Thereafter, their social activities appear to have rapidly declined. She stated that they moved to a property at Kirup on 11 June 2001 by which time the plaintiff's condition had deteriorated to the point where he had minimal involvement in physical activities. Whereas previously the plaintiff had made a full contribution to domestic duties, he was no longer doing so, claiming that he was unable to bend. She stated that he spent considerable time resting. Ms Downing stated that when she first met the plaintiff he was as sharp as a tack, but that there had since been a significant deterioration in his demeanour and cognitive capacity. She observed that he would rub his eyes a lot, and his right eye would get very inflamed and lacrimal. She stated that since moving to Kirup she did everything for the plaintiff, and all her spare time was taken up caring for him, doing such things as bringing him meals, and taking him to medical appointments. She asserted that three quarters of each day was spent caring for him.
In cross‑examination she stated that the plaintiff never really complained about headaches prior to the Exmouth trip, but also that his complaints were still somewhat limited. Ms Downing seemed reluctant to acknowledge that the plaintiff had any other physical problems, or to address his cardio‑vascular difficulties. When questioned concerning their social life when they first met, she stated that they would go out for dinner approximately four times a week, and the plaintiff was happy and in good spirits until approximately May 2000 when she observed his condition deteriorating. Her recollection was that the problem with the reddening and gouging of the eye had occurred in the last couple of years. She stated that she observed the plaintiff smoking marihuana two or three times a week at Kirup. She stated that the signs of an impending severe headache were the watering and reddening of the plaintiff's right eye, and his rubbing the eye.

Ronald Michael Brookes

Mr Brookes, the plaintiff's brother, was at all material times the Managing Director of the companies which traded as Brookes Maintenance Services. That firm provided the Mitsubishi to the plaintiff. Mr Brookes used the Mitsubishi following its purchase, and found it to be quite erratic through the transmission. As a consequence he rang the first defendant's service manager and told him that it was quite clunky through the gears, and was assured that the problem would settle down. Notwithstanding appropriate servicing of the vehicle, the problem remained. His wife then took over the vehicle, and the problem worsened.
Mr Brookes stated that the plaintiff joined Brookes Maintenance Services as a building supervisor in early 1996 and because of demonstrated capacity, worked his way up to general manager. He stated that after the incident the plaintiff began taking time off work. Brookes Maintenance Services was sold in early 2000 to "fund the Mozambique operation, because the end result in Mozambique was potentially quite large, could have ended up a substantial project – which it is". He stated that it had been arranged that the plaintiff would resign from Brookes Maintenance Services and be involved in the Mozambique operation in a managerial capacity. The plaintiff's performance on the first Mozambique trip suggested that he just wasn't himself, and on the second trip he was a "wipe out". Mr Brookes rated the plaintiff as eight on the first visit, and two on the second. When asked of the Mozambique project situation he said it was ongoing, and the general manager employed to run the operation received a salary of US$100,000 a year, plus accommodation, vehicle, and airfares. He stated that before the incident he regularly went fishing and diving with the plaintiff, but had not done so since; although I suspect that his commitment to the Mozambique project would not leave much time for recreation activities.

Noel William Hughes

Mr Hughes is area manager for the company that purchased Brookes Maintenance Services, having worked at Brookes Maintenance Services since January 1994. He knew the plaintiff and had regular contact with him in the course of his work at Brookes Maintenance Services, particularly when the plaintiff was general manager. He stated that in the period immediately prior to the takeover by the new company, the plaintiff's work hours were erratic, and this increased his own workload.

Peter Linton Silbert

Dr Silbert, a neurologist with a special interest in headaches, reviewed the plaintiff on 1 June 2000 at the request of Mr Bannan, and his various reports were received in evidence (Exhibits 9.1 to 9.12).
In his report of 3 June 2000 he observed that following the incident on 28 June 1999 the plaintiff developed cervical discomfort with gradual progression to right arm radicular symptoms, and subsequently underwent a C5/6 decompression fusion. Notwithstanding, he continued to experience cervical discomfort with increasingly prominent right occipito‑frontal headaches, maximal in the retro‑orbital region. He noted that since the trip to Exmouth the plaintiff had almost constant retro‑orbital and occipito‑frontal headache. He recorded the past medical history which included very infrequent muscle contraction headaches. Clinical examination revealed marked tenderness over the right upper cervical spine facet joints and greater occipital nerve, and Dr Silbert concluded that the plaintiff's headaches were cervicogenic. Consequently he performed a right greater occipital nerve block which resulted in a complete resolution of headaches for a short time. A subsequent right greater occipital nerve block, was according to the plaintiff, not so successful.
On 22 June 2001 Dr Silbert reported that the plaintiff was taking 8‑10 Panadeine Forte, 8‑10 Aspirin, and Temazepam on a daily basis.
In his report dated 22 December 2000 Dr Silbert addressed the nature of the headaches stating:
"Dr Bannan's initial concern at the time of referral was that with the reported injection of the right eye and lacrimation his symptoms could be due to cluster headache, but cluster headache is an episodic headache that occurs for 20‑50 minutes per day in a cyclical fashion, and is different in symptomatology. As stated above, Mr Brookes' were constant, 24 hours per day for a period of 2 months, and did not vary like migraine. I would therefore not consider the headache primarily migraine. The response to the greater occipital nerve injection is also supportive of this being a cervicogenic headache, as opposed to a migraine headache.
The objective clinical evidence that we have includes the response to the greater occipital nerve block. Mr Brookes' pain resolved totally under the effects of the local anaesthetic, and then gradually recurred over a 5‑6 week period. This is typical of an organic response to a greater occipital nerve injection."
Dr Silbert's evidence confirmed the views expressed in his various reports. He explained that a cluster migraine was a particular type of migraine headache, and was called cluster because it usually occurred in clusters lasting a period of six weeks, although headaches were not constant during that period. It occurred in a cyclical fashion. He stated that he had excluded tension headaches because they did not respond positively to a greater occipital nerve injection. He understood the headaches were present prior to the trip to Exmouth, and were aggravated by the driving undertaken on that trip. Referring to his report of 22 June 2001, Dr Silbert noted that the plaintiff told him his headaches occurred two to three times a week, and Dr Silbert concluded they were a combination of muscular and cervicogenic contributors. It appeared from Dr Silbert's evidence that stress associated with the medical‑legal process was an aggravating factor.
When asked to address the causative issue Dr Silbert said:
"The lurching forward can give a whiplash type mechanism where the head jerks forward. We know that Mr Brookes had pre‑existing degenerative changes at the C5‑6 segmental level as most people his age do. In terms of trauma potential its not a huge trauma potential from what I understand occurred. A jerking forward of the car – and that in itself I wouldn't have thought would be enough trauma potential to cause a disc protrusion at C5‑6. Clearly it occurred from when he developed that incident (sic) to when he presented to Mr Bannan."
The following further exchange occurred with plaintiff's counsel:
"What in that history then constitutes, in your opinion, the mechanism by which injury to the C5‑6 disc comes about? Because you say the disc protrusion therefore relates either directly or indirectly to the whiplash incident so, first of all, directly and, secondly indirectly?‑‑‑The directly one is a little more difficult. That comes down to whether the initial whiplash injury in a car was adequate to cause a C5‑6 disc protrusion. I would have thought that was unlikely. My suspicion is, but I can't verify it without further information about what treatment was given during that period of time and a further discussion with Mr Brookes as to what he experienced during that time, is whether treatment to his neck as treatment for the whiplash symptoms resulted in an aggravation of the C5‑6 disc protrusion."
Dr Silbert stated that it was quite common for cervicogenic headaches to lead to migraine headaches, and for the converse to apply. He summarised his diagnostic views by saying:
"It's prolonged, its sustained, its relieved by nerve block. Even if there was a migrainous component, the migrainous component is not going to account for a headache that goes continuously for two months and then is relieved by nerve block, improved by rhizotomy."
Dr Silbert was adamant even if there was a previous history of headache, that the problem for which he treated the plaintiff was not cluster migraine, but cervicogenic headache with a muscular component.
Dr Silbert's notes suggested that he obtained a history from the plaintiff of headaches prior to the fusion surgery of a different character to the post‑surgery headache which became right retro‑orbital two months before the consultation with Dr Silbert. The history obtained by Dr Silbert essentially suggested cervical discomfort following the incident, with the development of headaches prior to spinal surgery and progressing some time after surgery to increasingly prominent right occipital frontal headaches.

Dr La Grange's notes

Dr La Grange's medical notes were received in evidence by consent (Exhibit 10). They demonstrate that the plaintiff attended him on 5 July 1999, when he recorded the following history:
"Minor whiplash injury eight days ago secondary to problem with car transmission. No problems at time since increasing symptoms."
The notes suggest there was little to find on clinical examination, and the recorded symptoms appear to be at variance with the plaintiff's evidence concerning his alleged position at the time of the consultation.
The notes for 14 July 1999 record that the plaintiff wanted to go on workers' compensation, and contain the following description of the incident:
"Having transmission problems in car. When put in gear. Would pause variable length of time and suddenly lurch forward therefore usually had foot on brake till take‑up had occurred. This time caught unawares therefore had a default (sic) minor whiplash approximately three weeks ago."
Dr La Grange's diagnosis was of "soft tissue injury C7/T1 Facetal pain".

Craig Wadham Turner

Dr Turner, a general practitioner at the Churchill Health Centre, Shenton Park, has attended to the plaintiff. His three reports were received in evidence (Exhibit 12.1 to 12.3).
In the 17 December 1999 report Dr Turner recorded that the plaintiff presented on 30 August 1999 when he referred to the incident and complained of having experienced pain in the top of his neck and the right shoulder thereafter. There was no reference to headaches. Dr Turner diagnosed nerve root compression, being of the belief that the lurching of the vehicle put a shearing force on the C5/6 disc, tearing the annulus. He referred the plaintiff for neurosurgical management.
Dr Turner referred in evidence to his medical notes from which it appeared that the plaintiff's first recorded complaint of headaches was on 28 April 2000 when he presented with a very stiff and painful neck, and complained that he had been getting a couple of severe headaches a day, and was nauseous. It was Dr Turner's impression that the headaches were severe and debilitating. His note for 25 May 2000 recorded that the plaintiff was getting pain particularly at the top of his neck, which radiated into the right eye causing watering and light sensitivity. He was still experiencing two headaches a day lasting from one to five hours. Dr Turner was of the view that the rear end motor vehicle accident on 23 May 2000 made little difference to the plaintiff's condition, and his note of 9 June 2000 questioned whether the plaintiff was suffering from cluster headaches. Dr Turner stated that he entertained that diagnosis because of the symptoms of redness and watering of the eye, but accepted Dr Silbert's conclusion that the headaches were cervicogenic. Dr Turner understood that the severity of the headaches increased significantly after the Exmouth trip which had upset the dynamics of the plaintiff's neck. His medical notes recorded that the plaintiff was continuing to experience background headaches accompanied by blinding headaches twice a week.

Dr Turner's progress notes were received in evidence (Exhibit 14).
In cross‑examination by counsel for the first defendant, Dr Turner agreed that when he first saw the plaintiff on 30 August 1999, he considered him fit to return to his pre‑accident duties, although requiring treatment. On 13 September 1999 the plaintiff was complaining of pain radiating down the right arm to his thumb and first and second fingers, and weakness in the right elbow. Notwithstanding, Dr Turner still considered him fit for his pre‑accident duties. In fact it appears that apart from a short post‑surgery period, Dr Turner considered that the plaintiff was always fit for his pre‑accident duties. He agreed that the first time the problem of headaches was mentioned was at the consultation on 28 April 2000. He agreed that the motor vehicle rear end collision on 23 May 2000 stirred up the plaintiff's symptoms sufficiently to certify him unfit for work for 14 days. When Dr Turner saw the plaintiff on 9 June 2000 he thought that he might have been suffering from a cluster headache. His note of 7 March 2001 recorded that the plaintiff was complaining of a blinding headache several times a week. The notes recorded that the plaintiff had a heart attack on 25 September 2001.
In answer to a question by counsel for the second defendant, Dr Turner stated that apart from the period covering the surgery, and the 14 days following the motor vehicle accident in 2000, he certified the plaintiff fit for work from 30 August 1999 until 20 September 2000.

Emil Andrew Popovic

Mr Popovic, a neurosurgeon of 12 years standing, saw the plaintiff on several occasions in or about August 2003, and his three reports were received in evidence (Exhibits 15.1 to 15.3).
In a report of 8 August 2003 he referred to the plaintiff's complaint of debilitating continuous right retro‑orbital and temporal headaches. Mr Popovic observed that the plaintiff achieved a good result from his C5/6 fusion, but "has major problems with what sounds like chronic cluster headache". He raised the possibility of a significant contribution from upper cervical disc pathology.
In his report of 11 September 2003 he again expressed the view that chronic cluster headache was the main diagnosis, although a significant amount of the plaintiff's pain also occurred in the distribution of the right greater occipital nerve.
In his report of 7 November 2003 he referred specifically to the forces that were involved in the incident but appeared to regard that of little consequence since "disc injury does occur quite spontaneously and it can be quite insignificant forces which can break the camel's back." He concluded the report with the statement:
"I really do not feel there is any way that anyone can deny or prove that Mr Brookes' persisting cervical pain and headaches were not the result of his injury on 1.7.99."
Mr Popovic confirmed the contents of his reports in evidence.
When asked to describe what was meant by cluster headache, Mr Popovic stated:
"It tends to occur in middle age males typically and they tend to get episodes with attacks which occur in clusters, so they may be free of headaches for some weeks or months or years and then they occur in clusters of several attacks over, say, a period of weeks or so, but its certainly well recognised that the more severe ones tend to just be chronic and the clinical picture otherwise is that a pain which tends to be behind the eye or in the temple and associated with redness of that eye, tearing, nasal discharge, combinations of one or two or all of those, and it doesn't really imply a causation."
He agreed that a good response to a right greater occipital nerve block supported a diagnosis that the headaches were of cervical origin.
Dealing with the question of causation of the disc prolapse, Mr Popovic stated that it was of significance that the plaintiff reported immediate neck pain. He considered that the plaintiff's pain was coming from his neck, possibly at the C2/3 or C3/4 level. Mr Popovic did consider it would be diagnostically relevant if the plaintiff had a history of cluster headache or migraine preceding the incident, although he pointed out that if the plaintiff had a predisposition to cluster headache, the neck injury sustained in the incident could have made the position worse. He agreed that if the position was that the plaintiff was not troubled by debilitating headaches until about April 2000, the history would be consistent with cluster headache. He accepted the proposition that if the vehicle lurching caused the disc prolapse, it might indicate that the disc was so delicately balanced that it could have occurred at any time.
When it was put to Mr Popovic by counsel for the second defendant that the plaintiff's description of his headaches was that he had watering of the eye with severe pain in the back of the eye, he agreed that a more likely diagnosis was of cluster or migrainous type headaches. He emphasised however that his diagnosis had always been of cluster headache secondary to neck problems. He stated that if a person was predisposed to migraine or cluster headaches they could be brought on as a result of any number of insults, including viral infections and neck injuries.

Mark Christopher Yaksich

Mr Yaksich, an osteopath, has practised that discipline since 1979. He stated that when the plaintiff consulted him on 7 July 1999 he took a history, and then applied a dressing which was removed the following day. On 8, 9, 16 and 26 July he performed what he described as his standard treatment involving massage to the muscles of the neck and some minor traction. The plaintiff was also seen on 29 July but no treatment was administered. Mr Yaksich stated that osteopathic treatment was directed principally to soft tissue techniques, and forceful adjustments were rare.
In cross‑examination Mr Yaksich stated that he made his treatment notes within a short time of treatment. He stated that his notes did not demonstrate consultations on 13 and 20 July and 24 August, although a letter from his practice stated that the plaintiff attended on those days. Mr Yaksich claimed that was a mistake, and denied that he had in fact seen the plaintiff on those days or given him manipulative treatment. The letter from Mr Yaksich's practice was received in evidence (Exhibit 17). I found his evidence generally unconvincing.

The first defendant's evidence

Craig Alan Nilander

Mr Nilander was at the relevant time a service adviser in the first defendant's service centre, and was engaged in meeting customers, booking in vehicles for service, passing service details through to the workshop, and generally overseeing vehicle servicing. He recalled the plaintiff bringing the Mitsubishi in for service, and particularly for rectification of a transmission fault which he classed as "a roll down thump in the gearbox and also a thumping into gear selecting from reverse to drive". He stated that when booking a vehicle in for service it was his practice to write down precisely what the customer said. He stated that the handwriting on Exhibit 2 "thumps into gear when pulling up to a stop. Also when selecting drive after reverse bangs into gear, (hot or cold)" recorded the plaintiff's complaint. He stated that the vehicle would definitely have been road tested following service. His recollection was that the plaintiff called to collect the vehicle subsequent to the service and commented "I'll send you the chiropractor's bill."
Mr Nilander stated that the first defendant was not able to remedy the transmission problem on 22 June 1999 because parts were not available in Western Australia, but that a new transmission and ECU were fitted to the Mitsubishi on 8 July 1999. The first defendant's service records (Exhibit 16) did not record fault issues relating to the transmission when the Mitsubishi was presented for the 1,500, 7,500, 15,000 and 30,000 kilometre services. When he spoke to the plaintiff on the occasion that the transmission was replaced, the plaintiff did not complain of injury.
Mr Nilander stated there had never been an occasion when a Magna vehicle owner had complained of a transmission malfunction causing the vehicle to suddenly lurch forward, and he had been involved in the servicing of several Magnas a day over the 18 months of his employment as a service adviser.
In cross‑examination Mr Nilander stated that as at June 1999 he was aware of a latent problem with the automatic transmission of this particular model Mitsubishi, and a fix procedure had been put in place as a result of an instruction from the second defendant in about April 1999. Generally the fix required replacement of the transmission, or the ECU, and unusually both. He stated that he was aware of a particular transmission problem described as shock when slowing down, but was not aware of shock during up shift, vibration under light acceleration, slipping on heavy acceleration, or lack of drive. He was aware of delayed engagement of drive because of the problem with the Mitsubishi. He agreed that it was not possible to ascertain from the documentation that the Mitsubishi was road tested following service on 22 June 1999. He also agreed that the plaintiff had made clear to him that there was some urgency about rectification of the transmission problem. He conceded that it was possible he spoke with the plaintiff between 22 June 1999 and 8 July 1999, although he doubted that he had. He confirmed that he mentioned the plaintiff's statement about the chiropractic account to the first defendant's solicitors when he made a statement on 13 March 2001.
The plaintiff was recalled to comment on Mr Nilander's evidence that he had indicated that he would send the first defendant the chiropractor's bill, and denied that was said. He stated however that shortly after the incident he rang the first defendant threatening legal action, and at about that time may possibly have made mention of a chiropractor.

Alan Keith Lethlean

Dr Lethlean, who has practised as a consulting neurologist for approximately 40 years, saw the plaintiff at the request of the first defendant on 6 April 2001, and his two reports were received in evidence (Exhibits 18.1 and 18.2).
In the first report he referred to the incident and the plaintiff's account of experiencing immediate neck pain, worsening over the following week, with pain extending down the right upper limb. The plaintiff told Dr Lethlean that in the Christmas/New Year period following the incident he was aware of posterior headaches, and felt that they pre‑dated the fusion operation. The headaches required him to take occasional time off work. In addition there were severe headaches on the right which commenced with a tickle in the right anterior temple, rapidly developing into a severe pulsing headache behind the right eye and consequent lacrimation. The plaintiff was required to take two to five Panadeine Forte tablets and retire to bed with Temazepam in an effort to relieve the headaches. The plaintiff stated that these headaches developed on most days, sometimes several times a day.
Having outlined the symptoms and medical history, the plaintiff told Dr Lethlean that he had not previously experienced headaches of significance, and in particular did not have a history of headache requiring treatment. Dr Lethlean reported:
"Since his injury and certainly from the December 1999 period, there have been frequent, right anterior retro‑orbital headaches, which develop suddenly, can usually not be aborted and which persist until with medication he is able to sleep. These have reduced in frequency with injections and cryo surgery to his right greater occipital nerve on four occasions, but there appears to have been a non‑specific response."
He stated that the plaintiff gave him a most uncertain account of the temporal sequence. His clinical diagnosis was:
"The account of symptoms following the injury on 28 June 1999 together with the MRI scan findings is that of a disc protrusion – right C6 nerve root involvement, the latter cleared following surgery with his occipital headache developing bilaterally subsequent to this and having the features of scalp/muscle/tension headache, perhaps with a component of referred cervical pain. On the evidence available, my opinion is that the right retro‑orbital headaches are not of cervical origin and do not derive from his cervical injury/disc protrusion surgery but rather they have more the features of cluster headache."
When asked in evidence in chief why he concluded the plaintiff's headaches were not accident related, Dr Lethlean stated:
"Because the headaches were stereotyped. They developed rapidly. They were very severe and had a limited duration and I thought, with the associated features as described to me of reddening of the eye and I thought that these were the attacks typical of cluster headache, which is a recognised, not terribly common form of recurring one sided headache."
He stated that a pre‑incident history of cluster headache would support his diagnosis.
In cross‑examination he indicated that although he was prepared to accept that the incident caused the plaintiff's neck problems, it was an unexpected consequence. Dr Lethlean did not embrace the proposition that the plaintiff's severe headache was associated with the structures and components of the neck, stating that:
"It's the repetitive development, the watering of one eye and the reddening of one eye which I thought was different to the occipital neuralgia headache which is the upper cervical posterior headache that you were discussing."
He accepted that a greater occipital nerve headache could extend as far forward as to behind the eye. He considered that there were limitations to the diagnostic importance of headache reduction following greater occipital nerve blocks, and felt it was not very applicable to posterior headaches in general coming from ligaments, joints, discs and tendons. His view was that the plaintiff had two sorts of headaches, one type being cervical headaches, but he did not accept that the plaintiff had occipital neuralgia since the occipital nerves were not tender or sensitive. He also thought that the plaintiff had a cluster type headache which was the right sided headache extending to behind the right eye. He stated the two major factors in reaching his diagnostic conclusion were the manner in time that the headaches presented, and the fact that he couldn't reproduce occipital pain by pressing the occipital nerve.

John Keegan

The statement of Mr Keegan dated 9 September 2003 was admitted by consent, and simply confirms that had the plaintiff wished to continue employment with Brookes Maintenance Services following sale, he would not have been able to do so.

Alfredo Ciullo

As at June 1999 Mr Ciullo was the first defendant's workshop foreman. He is a qualified motor mechanic who has been in the motor vehicle industry for 25 years, and has 17½ years experience with Mitsubishi vehicles. He stated that as workshop foreman his obligation was to assist the technicians and apprentices in the workshop, and generally to quality control the work. He stated that it was the first defendant's practice to road test vehicles prior to servicing, and subsequent thereto. He confirmed that a road test was a requirement of the 45,000 kilometre service (being the service that the Mitsubishi underwent on 22 June 1999). He confirmed that as a result of the transmission problem he completed warranty repair approval forms for a new transmission assembly and ECU on the date of the service. He stated that he was cognisant of transmission problems with this particular model of Mitsubishi Magna. Generally, the problems were loss of drive, problems with the 2‑3 gear shift, and delayed engagement of drive, but he had never before encountered a complaint of a vehicle lurching violently forward when drive was engaged. Indeed, he was unable to provide an explanation as to how that could occur.
In cross‑examination Mr Ciullo stated that he had been aware of the transmission problem with this model for at least two years prior to June 1999. He agreed that there were several transmission faults encountered that required transmission replacement. Although in the early stages there had been delay in the provision of replacement transmissions, it seems that the situation had improved by mid 1999. He expressed the view that delayed engagement would cause a slippage or a delayed reaction in selecting drive, but not cause a shift shock, and he had never before received a complaint of shift shock during drive engagement.

Second defendant's case

Iain Pierre Robilliard

Mr Robilliard is employed by the second defendant as manager of technical affairs in the Corporate Quality Assurance Division. He was aware of the alleged circumstances of the incident and was in court during the plaintiff's evidence. He stated that as a result of a number of complaints from customers concerning the TE series Magna, a committee had been set up by the second defendant to address the problem, and a letter described as V17 (Exhibit 20) had been sent out in April 1999 to dealers, including the first defendant, advising as to how the problems were to be addressed.
Mr Robilliard stated that the plaintiff's particular complaint concerning the Mitsubishi was described in V17 as delayed engagement of drive. He stated that the plaintiff's description of the incident was beyond the magnitude of anything that had been previously described to or encountered by the second defendant. He indicated that if there was a customer complaint matching one of the problems identified in V17, the second defendant would take steps to replace the defective parts. He confirmed that as a result of complaints concerning the Mitsubishi about delayed engagement into drive, and down shift thump when coming to a stop, a transmission assembly and ECU were provided. The vehicle operator's manual was received in evidence (Exhibit 22).
Mr Robilliard's report, and his oral evidence, sets out the exercise that was undertaken in an endeavour to determine the forces generated by shift shock in the Mitsubishi. He stated that what had happened with its transmission was that there was wear in the under drive clutch such that the ECU was unable to control it, causing shift shock. A method was devised to replicate the sudden engagement of the clutch – a system equivalent to the dropping of the clutch in a manual geared vehicle. A series of tests were then run to ascertain the maximum forces that would be generated by shift shock, and the test results provided to Dr Henderson.
In cross‑examination Mr Robilliard agreed that it became obvious to the second defendant by late 1996 that there was a latent problem with the automatic transmission on TE Magnas, and the issue had been thoroughly addressed by a working party set up by the second defendant and its Japanese parent company. He agreed that the engagement in drive problem was otherwise described as the under drive clutch seal groove wear problem, in respect of which the most appropriate remedial step was replacement of the transmission. He agreed that by February 1998 the second defendant was aware of the investigation of 38 problematic automatic transmissions, and total warranty costs for failure came to almost $6,000,000. He seemed to indicate that the cost of replacing an automatic transmission was somewhere between $2,000 and $5,000.

Harold Raymond Schaeffer

Mr Schaeffer, a neurosurgeon of 46 years experience, saw the plaintiff at the request of the first defendant on 4 December 2000. His reports dated 11 December 2000, and 1 February 2001 were received in evidence (Exhibits 28.1 and 28.2).
In the 11 December 2000 report Mr Schaeffer set out the plaintiff's account of the incident, and his statement that the Mitsubishi lurched forward about 60 centimetres. He observed that the plaintiff was wearing a seatbelt and that the Mitsubishi was equipped with head rests. The plaintiff told Dr Schaeffer that he experienced immediate neck pain followed by a burning pain in the base of his neck. Mr Schaeffer reported that prior to the fusion surgery the plaintiff claimed to be experiencing a considerable amount of neck and shoulder pain with paresthesia radiating down the right upper limb. The plaintiff told Mr Schaeffer that he developed a severe thumping headache situated behind his right eye in early 2000 and was referred to Dr Silbert for cortisone injections which provided temporary relief. A rhizotomy did not assist. The plaintiff told Mr Schaeffer that as at the date of the consultation he was experiencing constant neck pain aggravated by movement, and almost daily headaches situated behind his right eye which would wake him at night. The headaches would sometimes be associated with lacrimation and nausea. The plaintiff advised Mr Schaeffer that he did not have a history of migrainous headaches, but that he had undergone a coronary by‑pass operation approximately four months prior to the consultation. Mr Schaeffer was of the view that the plaintiff had a pre‑existing degenerative condition of the C5/6 disc which condition he felt, accepting the plaintiff's history, was aggravated by the incident of 28 June 1999. He stated that pre‑existing degeneration of the disc was a prerequisite to disc herniation. Addressing specifically the severe headaches which he understood to have commenced about two months post operation, Mr Schaeffer stated that the accompanying symptoms were consistent with migraine, and not related to a cervical condition.

Mr Schaeffer's report of 1 February 2001 addressed Dr Silbert's views concerning the nature of the headaches. He stated that the impression he gained from the plaintiff was that the severe pain situated behind his right eye associated with lacrimation and nausea was episodic rather than constant. He disagreed that the plaintiff's headaches were cervicogenic, which he regarded as no more than ordinary tension headache. He doubted the diagnostic validity of the plaintiff's response to greater occipital nerve blocks, stating that there was a very large placebo response to such a procedure.
In evidence‑in‑chief Dr Schaeffer confirmed his belief that the plaintiff must have had a pre‑existing degenerative condition at C5/6, pointing out that normal discs don't herniate, and that pre‑existing degeneration of some severity is necessary before herniation takes place.
He stated that cluster headache or facial migrainous neuralgia was an extremely painful condition experienced most frequently by middle aged men, occurring periodically associated with lacrimation and sometimes rhinorrhea, and the pain classically being situated behind the eye. He confirmed his diagnosis of the plaintiff's severe headache as facial migrainous neuralgia or cluster headache. He made the obvious point that if the plaintiff had a pre‑incident history of migrainous headache it would create a nexus between them and the present headaches. He also stated that the longer the period between the incident, and the development of headaches, the less likely there was any causal connection. He stated that the cause of cluster headache was unknown, but may have some vascular basis. When addressing the effect of the injection to the greater occipital nerve Mr Schaeffer stated that it was thought any form of medical treatment had a placebo effect in about 30 per cent of cases. Mr Schaeffer stated that the segmental levels in the cervical spine were so close together that it was not possible clinically to identify pain as emanating from a particular level.

Mina Mounir Fahmy Moussa

Dr Moussa, a general practitioner, was during 1997 and 1998 practising at the Carepoint Industrial Health Services Clinic, Welshpool, and saw the plaintiff during that period. He was referred to the practice notes and identified his entries. The notes were received in evidence (Exhibit 29). He confirmed from the notes that there were a number of occasions when he prescribed Codalgin Forte to the plaintiff. Dr Moussa stated that Codalgin Forte was a generic name for Panadeine Forte, a codeine narcotic product, being a very strong analgesic. He stated that there were times when the plaintiff simply telephoned and arranged to call and pick up a prescription. During March and April 1997 the plaintiff was requiring a prescription fortnightly, which Dr Moussa described as a very high intake. Prior to 15 May 1997 it was unclear as to the condition necessitating the drug, and may have been related to lower limb problems. From 15 May 1997, however, the prescriptions were related to complaints of headaches. In particular on 3 November 1997 the plaintiff claimed that he had a migraine or cluster headache for 36 hours, and on that occasion Dr Moussa gave him an injection, and provided a referral to a neurologist for assessment. Dr Moussa referred to his referral letter dated 13 November 1997 (Exhibit 30) which read:
"Many thanks for assessing this 42 year old man who has a history of cluster migraine. Seen by neurologists in Queensland now living in Perth."
Dr Moussa stated that the above history was provided by the plaintiff.
Dr Moussa's note of 1 October 1998 read, inter alia, "Headache, can't sleep had scans neurosurgeon." Again he was of the view that the history of having had scans and visiting a neurosurgeon was obtained from the plaintiff. He agreed that the plaintiff had prescriptions for Codalgin Forte on numerous occasions. There was only one occasion when Dr Moussa documented a cluster type headache, although there were four occasions when the notes make reference to headaches.

John Michael Henderson

Dr Henderson is a medical practitioner with a special interest and involvement in the study of the causation and prevention of injury in traffic accidents, having specialised in that area since about 1966. Dr Henderson's CV confirmed that his current area of interest and activity was crash simulation, analysis of trauma data, analysis of crash worthiness standards, accident analysis, and best practice and speed management.
Prior to making an assessment and preparing his report Dr Henderson had received Mr Robilliard's report (Exhibit 24) from which he extracted details to make the calculations which appear in his report. Dr Henderson stated that principally he worked on the figures obtained from the Robilliard test 5 because it appeared to be the most severe in terms of the acceleration and speed of the vehicle. He concluded that in the first quarter of a second the change of velocity was from zero to 3‑4 kilometres per hour, and the resultant acceleration force, between .6 and .7 g. He stated that he was unable to find any research data where people had been injured where the velocity change was of the order of 3‑4 kilometres per hour. He stated that research indicated that a change of velocity below 4 kilometres an hour did not result in hyperextension injury, and the suggestion that a person would suffer a prolapsed disc was unprecedented, since the forces associated with low level acceleration were forces commonly experienced in every day life, with activities such as going up and down stairs, sitting down, turning in bed, turning heads suddenly, and the like. Dr Henderson stated that his research demonstrated that disc prolapse was extremely rare although not unprecedented in rear end collision, provided sufficient forces were involved. There was no recorded material of a person suffering a prolapse disc in an accident where the vehicle speed was under 10 kilometres per hour. Dr Henderson's report of 7 August 2002 was received in evidence (Exhibit 31).
In cross‑examination Dr Henderson disagreed that the material upon which he relied for his conclusions did not address specifically the issue of whether there was a force threshold for injury. He agreed that whether particular forces were capable of producing injury in the neck ultimately turned on the direction and duration of the force. He was prepared to accept the conclusions drawn in one of the papers referred to in the reference material upon which he relied that:
"No human subject sustained injury after undergoing two rear impacts with a change in velocity of 8‑10 kilometres over a span of 2 days…this lends support to the notion that a rear impact with a change in velocity of 8 kilometres or less is within tolerance for a reasonably healthy occupant assuming the presence of a head restraint and relatively normal initial seating position."
He agreed that it was not possible to say more than that in the context of the research. He also agreed that the test subjects chosen for the experimental studies were people in reasonable health. Dr Henderson confirmed that he had not had any role in the preparation of the Robilliard report.
Having reviewed the evidence I now turn to a resolution of the relevant issues.

Causation

Did the plaintiff sustain the injuries alleged (right postero‑lateral disc protrusion at C5/6 and/or injury to neck) in the incident and are the debilitating headaches a consequence thereof?

The starting point in the examination and determination of causation is a finding as to the plaintiff's credibility, since it is obvious that any medical diagnosis is dependent upon the validity of the symptom history provided.
The plaintiff denied having experienced significant headaches or consulting a specialist in respect thereof prior to the incident. He had no recollection of attending the Care Point Medical Practice and complaining to Dr Moussa of having experienced a 36 hour migraine on 3 November 1997. It is clear from Dr Moussa's evidence that pre‑incident he had been prescribing Codalgin Forte for the plaintiff. His evidence was that on 3 November 1997 the plaintiff complained to him of suffering a migraine or cluster headache for 36 hours, and required an injection. Also that he referred the plaintiff for specialist assessment, having obtained from him a history of suffering cluster migraine and having consulted neurologists in Queensland. His note of 1 October 1998 recorded a history of the plaintiff having had scans undertaken by a neurosurgeon. It is inconceivable that Dr Moussa's notes (particularly his referral note) would not accurately record the history given; and equally, the history being correct, that the plaintiff would fail to recollect those matters at trial. I am left with little confidence as to his veracity, and consequently the extent to which reliance can be placed on his symptom history. I formed the view generally that he exaggerated the extent of the symptoms and their effect upon him. The false assertions in his tax returns, and his evidence in respect thereof, did nothing to restore his credit.
The evidence demonstrates that the first practitioner consulted was Dr La Grange, on 5 July 1999, a week post‑accident, when the plaintiff was complaining of neck symptoms suggestive of a minor whiplash injury. The medical notes do not refer to headaches.
The next consultation with Dr La Grange was on 14 July 1999 when the plaintiff seems to have addressed neck symptoms of no more than moderate severity, again without reference to headaches.
Mr Yaksich saw the plaintiff on 7 July 1999 and there does not appear to have been any reference to headaches, although having regard to his discipline that is perhaps not surprising.
The plaintiff consulted Dr Turner on 30 August 1999, almost two months post‑accident, complaining of cervical symptoms. He does not appear to have mentioned headaches. When subsequently reviewed on 13 September 1999 his cervical symptoms had increased, with the development of neurological problems indicative of nerve root compression. This appears to be the first recorded complaint of neurological symptoms. It appears that the plaintiff did not make reference to debilitating headaches (or for that matter any headaches) to Dr Turner until April 2000.
Dr Turner's practice notes first record headaches on 28 April 2000 as "headache + with vomiting – a couple of headaches per day". There is extensive reference to severe headaches on 25 May 2000, and a note on 9 June 2000 reads "headaches ++ cluster headaches – headaches improved following injection by Peter Silbert". It is not suggested that the headaches resolved.
In cross‑examination Dr Turner stated that from the time of the first consultation on 30 August 1999 until a month post‑surgery (ie December 1999) there was no mention of headache, but the notes to which I have referred suggest that the first complaint of headache was much later.
In the statutory declaration made 23 December 1999 (Exhibit 8), the plaintiff does not make any reference to headaches.
Mr Bannan's reports indicate that his first recorded complaint of headache was on 16 May 2000. He regarded the history as suggestive of cluster headache and arranged for the referral to Dr Silbert, although by 17 October 2001 was prepared to agree with Dr Silbert's diagnosis that the headaches were cervicogenic in nature. In evidence he indicated that he did not think the headaches related to the surgery or had a cervicogenic origin, and he considered that the redness and watering of the eye were classical symptoms of cluster headache. He considered that a history of pre‑incident headache was diagnostically relevant, as if the plaintiff had previously experienced upper cervical induced or cluster headaches, it may well be indicative of the fact that the condition was ongoing.
Mr Bannan was prepared to accept a causal connection between the incident and the disc prolapse, but noted that was dependent upon the plaintiff being a reliable historian.
When Dr Silbert saw the plaintiff on 1 June 2000 the history given was that following the incident he developed cervical discomfort progressing to neurological symptoms and "increasingly prominent right occipital‑frontal headaches, maximal in the retro‑orbital region. Following the Exmouth trip he experienced almost constant retro‑orbital and occipital frontal headache". Dr Silbert's conclusion that the headaches were cervicogenic was in part based upon the fact that they resolved completely under the effect of a local anaesthetic block, and in part on the fact that they were not episodic (which seems in conflict with the description given to Dr Turner).
His report of 2 August 2000 referred to a recurrence of right‑sided cervicogenic headaches since commencing physiotherapy.
In his report of 22 December 2000 he noted that as at 1 June 2000 the plaintiff complained of constant right retro‑orbital and right occipito‑frontal headaches 24 hours per day for a two month period which he felt was inconsistent with migraine or cluster headache which was not constant.
His report of 22 June 2001 noted that the plaintiff was complaining of experiencing two to three headaches per week, craniocervical in origin, and radiating through the right eye.
In evidence Dr Silbert stated that cluster migraine was a particular type of migraine headache which occurred in clusters over six weeks, although the headaches were not continuous. He stated that migraine initiated from intercranial blood vessel problems, and that cervicogenic headaches could lead on to migraine, and vice versa. The plaintiff explained to Dr Silbert he had the occasional muscle contraction headache prior to the incident.
Dr Silbert said in evidence "one of the difficulties is when the actual injury occurred … we don't really know when the C5‑6 disc protrusion occurred". He did not regard the description of the alleged incident as indicative of sufficient force or velocity to cause a disc protrusion at C5/6 but felt manipulation could result in a prolapse. He would have expected immediate pain if the incident was the precipitating cause.
Mr Schaeffer's reports indicate that the history he obtained was of neck pain immediately following the incident, with the development in early January 2000 of a severe headache located behind the right eye, and headaches present almost daily thereafter. The headaches were described as an intense pain behind the right eye associated with lacrimation and nausea. There was no history of migrainous headaches. Mr Schaeffer stated that pre‑existing degeneration of the disc was a prerequisite to the development of disc herniation. The impression he gained from the plaintiff was that the severe headaches were episodic, and his conclusion was that they bore the features of migraine and were not cervicogenic which he described as being no more than ordinary tension headaches. He was unimpressed with the diagnostic significance of the response to occipital nerve blocks because there was often a large placebo response thereto.
In evidence he confirmed the view that significant pre‑existing degeneration of a disc was a necessary prerequisite for herniation. He described cluster headache as an extremely painful condition tending to present in middle aged men, occurring episodically, and associated with lacrimation, the pain classically situated behind the eye. He considered that a pre‑incident history of cluster headache was extremely relevant.
Dr Lethlean obtained a history of neck symptoms immediately following the incident, worsening over the following week, and progressing to neurological symptoms, with an awareness of posterior headaches in the Christmas/New Year period 1999/2000. More severe right‑sided headaches developed on most days, sometimes more than one per day, and as at 6 April 2000 the plaintiff was experiencing right‑sided retro‑orbital headaches two to three times per week. The plaintiff did not give any pre‑incident history of headaches requiring treatment or rest.
Dr Lethlean stated that the plaintiff gave an uncertain account of the temporal sequence of right anterior retro‑orbital headache, and was not confident that severe headaches were present prior to surgery. He was firmly of the view that the right retro‑orbital headaches were not of cervical origin, but had the characteristics of cluster headache, their pattern being inconsistent with the pathology identified at C5/6.
His oral evidence was to the effect that a pre‑incident history of cluster headache would support his diagnosis. As previously noted his view was that a cervical spine injury was an unexpected consequence of the incident described to him which was most unlikely to cause the prolapse. In his view the rapidity of development of headache and the reddening and lacrimation of one eye suggested that the headaches could not be categorised as occipital neuralgia. He did not attach much significance to the plaintiff's response to greater occipital nerve blocks as he considered they could also provide relief for migrainous headaches in the short term.
Mr Lee was prepared to accept, on the history given, that the disc protrusion resulted from the incident, basing that acceptance on the absence of prior symptomatology, and the persistence of symptoms post‑incident. Notwithstanding, he expressed the view that for a disc protrusion to have occurred, significant force would have to be applied to the neck. Whilst accepting that the incident could have caused the prolapse, he indicated that it would not have been sufficient to cause prolapse of a normal disc.
Mr Popovic who first saw the plaintiff on 8 August 2003 seemed generally to favour a diagnosis of chronic cluster headache, although accepting that a positive response to a greater occipital nerve injection would suggest a problem of cervical origin. He was prepared to accept that the incident could have caused the prolapse stating that "disc injury does occur quite spontaneously, and it can be quite insignificant forces which can break the camel's back".
The evidence of Dr Henderson, which I accept, and which accords with logic and commonsense suggests that it would be extraordinary for the incident described to cause a disc prolapse or hyperextension injury.
The plaintiff carries the burden of establishing on the balance of probabilities that the disc prolapse, which obviously occurred at some time, was a consequence of the incident. On a consideration of all of the evidence I am not satisfied that it is more probable than not that the incident and the prolapse are causally related. Indeed the burden of the evidence supports a contrary conclusion.
In any event the incident could only have caused the prolapse if the disc was in such an unstable or perilous position that a herniation was likely to result at any time, and would have resulted, from normal daily activities, and certainly from the motor vehicle accident on 23 May 2000.
Further I am not persuaded that the debilitating headaches are cervicogenic in nature. Such a view is not in conformity with the burden of the medical evidence. Nor am I persuaded that whatever headaches the plaintiff experiences are causally related to the incident.
The first reference to a complaint of headaches is in Dr Turner's patient notes for 28 April 2000 and it was only subsequent to seeing Mr Bannan and complaining of headaches on 16 May 2000 that the plaintiff was referred to Dr Silbert.
Ms Downing's evidence seems to suggest that the plaintiff had very few complaints of any physical difficulties before the Easter Exmouth trip.
It appears that all the medical practitioners, save for Dr Silbert, entertained a diagnosis of cluster headaches; and Dr Lethlean and Mr Schaeffer, both of whose evidence I accept, were firm in their view that the debilitating headaches were not cervicogenic.

It is quite clear that if the plaintiff experienced significant headaches pre‑incident they would be of diagnostic significance, and as I have already indicated I find that he so advised Dr Moussa, and the necessary finding is that he did. His denial of that longstanding problem suggests a belief by him that an acknowledgment thereof poses causative difficulties for him in these proceedings.
Generally my lack of confidence in the evidence of the plaintiff, and my acceptance of Dr Henderson's evidence, leaves me unpersuaded that the plaintiff suffered any physical injuries in the described incident.
As the High Court stated in St George Club Ltd v Hines (1961) 35 ALJR 106 at 107:
"In an action at law a plaintiff does not prove his case merely by showing that it was possible that his injury was caused by the defendant's default, Binnington Castings Ltd v Wardlow ((1956) AC 613); nor does proof of default followed by injury show that the default caused the injury, for as Viscount Simonds said in Quinn v Cameron and Robertson Ltd ((1958) AC 9 at p 23), 'Post hoc, ergo propter hoc' is a fallacy in respect of a breach of a statutory regulation as it is in respect of any other event in life."

Liability

The claim against the first defendant

Prior to the servicing of the Mitsubishi by the first defendant on 21 June 1999 the plaintiff was well aware of the fact that there were problems with its transmission, and of its expected performance characteristics. His evidence was that the problem was deteriorating. When he collected the Mitsubishi from the first defendant's service centre on the day of service it was clear to him that the problem had not been rectified, and that a new transmission was required. Although he stated that Mr Nilander "didn't at any time tell me that the vehicle was dangerous", he clearly had a better appreciation than Mr Nilander of its driving characteristics. He made an informed decision to drive the vehicle cognisant of its condition.
When describing the behavioural characteristics of the Mitsubishi at the time of the incident, the plaintiff asserted it was the first time that it had suddenly lurched forward.
The plaintiff had no hesitation in driving the Mitsubishi after collecting it from the first defendant, and clearly did not foresee the likelihood of the performance characteristics of the transmission causing him injury. Put at its highest, the first defendant's duty towards the plaintiff went no further than advising him that the transmission fault had not been rectified, and that it was necessary to effect replacement of the transmission and the ECU. It did not have an obligation to prevent the plaintiff taking the Mitsubishi if that was his wish, and/or to offer him a courtesy vehicle. He did not request one.
I accept the evidence of Mr Nilander and Mr Ciullo that the first defendant had not experienced, nor been advised by any of its customers, that the transmission would behave in the manner in which the plaintiff states it behaved on the date of the incident. Indeed that surprised the plaintiff who drove the Mitsubishi regularly over a six month period immediately preceding the incident, at which time it was 3 years old.
Further, for the reasons which I will address in considering the claim against the second defendant the performance of the Mitsubishi as described by the plaintiff was not reasonably foreseeable and the risk of injury to the plaintiff from the malfunction of the transmission was negligible.
The plaintiff has failed to establish a breach of duty owed to him by the first defendant.

The claim against the second defendant

The claim against the second defendant is based upon the assertion that it was under a duty to drivers and passengers of the particular model Mitsubishi to take reasonable steps to prevent or reduce the likelihood of them sustaining reasonably foreseeable physical injury whilst travelling in the model due to the automatic transmission fitted. It is pleaded that in breach of its duty it supplied the Mitsubishi with a defective transmission, failed to supply the first defendant with the necessary parts to replace the transmission and the ECU, and failed to conduct any recall campaign after becoming aware of transmission defects.
As can be seen, the pleading identifies the alleged duty on the second defendant as a requirement to take reasonable steps to reduce or eliminate the risk of persons sustaining reasonably foreseeable physical injury as a consequence of the malfunction of the automatic transmission, and that plea accurately identifies the appropriate legal standard.
In Tame v State of New South Wales (2002) 211 CLR 317 Gleeson CJ at p 331 stated:
"A necessary, although not sufficient, condition of the existence of a legal duty of care is reasonable foreseeability of the kind of injury that has been suffered by the person to whom the duty is owed. More than 150 years ago Pollock CB (Greenland v Chaplin AN 50, 5 EX 243 at 248) said that a person 'is not … expected to anticipate and guard against that which no reasonable man would expect to occur'. Foreseeability may be relevant to questions of the existence and scope of a duty of care, breach of duty, or remoteness of damage. … It is important that 'reasonable foreseeability' should be understood and applied with due regard to the consideration that, in the context of an issue as to duty of care, it is bound up with the question whether it is reasonable to require a person to have in contemplation the risk of injury that has eventuated.
In Jaensch v Coffey (1984) 155 CLR 549 at 579 Deane J emphasised that the concepts of reasonable foreseeability, and what he called 'proximity of relationship' are related. What a person is capable of foreseeing, what is it reasonable to require a person to have in contemplation, and what kinds of relationship attract a legal obligation to act with reasonable care for the interests of another, are related aspects of the one problem. The concept of reasonable foreseeability of harm, and the nature of the relationship between the parties, are both relevant as criteria of responsibility."
McHugh J at p 353 stated:
"Sometimes, courts do not even ask the decisive question in a negligence case: did the defendant's failure to eliminate this risk show a want of reasonable care for the safety of the plaintiff? They overlook that it does not follow that the failure to eliminate a risk that was reasonably foreseeable and preventable is not necessarily negligence. As Mason J pointed out in Shirt v Wyong Shire Council (1980) 146 CLR 40 at 47‑48 in a passage that is too often overlooked: 'The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position'."
At p 354 his Honour said:
"So far as possible, the issue of reasonable foreseeability of risk in breach of duty situations should no longer be determined in isolation from the issue of reasonable preventability and the ultimate issue of what reasonable care requires. Indeed at the breach stage, it is better to avoid the question of reasonable foreseeability. Instead, courts should see their task as that of deciding whether the defendant knew or ought to have recognised that he or she had created an unreasonable risk of harm to others. Whether the creation of the risk was unreasonable must depend upon whether reasonable members of the community in the defendant's position would think the risks sufficiently great to require preventative action. This is a matter for judgment after taking into account the probability of the risk occurring, the gravity of the damage that might arise if the risk occurs, the expense, difficulty and inconvenience of avoiding the risk and any other responsibilities that the defendant must discharge."
At p 355 his Honour said:
"We should return to Lord Atkin's test (Donoghue v Stevenson (1932) AC 562 at 580) that: 'you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.' … What is foreseeable is a question of fact – prediction if you like. But reasonableness is a value. At least in some situations, policy issues may be relevant to the issue of reasonable foresight because reasonableness requires a value judgment … But whether or not such policy matters are a factor in the foresight issue, the concept of 'likelihood' in Lord Atkin's formulation does not require the defendant to take into account remote possibilities of harm. The defendant is no more bound to take them into account than he or she is entitled to take into account only those risks whose chance of occurring is more probable than not."
The performance of the Mitsubishi as described by the plaintiff was not, having regard to all the evidence, reasonably foreseeable.
Accepting as I do, the evidence of Dr Henderson, which is not inconsistent with any of the medical evidence adduced, I find that the risk of injury from the potential of the transmission to malfunction, was negligible. The possibility of malfunction resulting in physical injury was remote.
The steps taken by the second defendant to address transmission problems as and when they were reported to dealers was an entirely appropriate response having regard to its knowledge and understanding of the potential difficulties, the likelihood and nature of malfunction, and the likelihood of damage. It was not, in all the circumstances in breach of any duty to the plaintiff.

[2004] WADC 114

4 June 2004