Burns v Mastaglia - [2005] WADC 13

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BURNS -v- MASTAGLIA & ANOR [2005] WADC 13

CORAM: FENBURY DCJ

HEARD: 1-3 SEPTEMBER, 30 NOVEMBER, 1 DECEMBER 2004

DELIVERED : 28 JANUARY 2005

FILE NO/S: CIV 596 of 2002

BETWEEN: JAMES BURNS
Plaintiff
AND
NATHAN JARED MASTAGLIA
First Defendant
GARY HAYWOOD
Second Defendant

Catchwords:

Damages - Negligence - Motor vehicle accident - Personal injuries - Causation - Turns on own facts

Damages - Injury to cervical spine and lumbar spine - Turns on own facts

Legislation:

Nil

Result:

Judgment for the plaintiff in the sum of $350,330.70

Representation:

Counsel:

Plaintiff:     Mr K Pratt
First Defendant             :     Mr J Brooksby
Second Defendant         :     Mr J Brooksby

Solicitors:

Plaintiff:     Stephen Browne Lawyers
First Defendant             :     Greenland Brooksby
Second Defendant         :     Greenland Brooksby

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

State Government Insurance Commission (Western Australia) v Oakley (1990) Aust Torts Reports 81‑003

Case(s) also cited:

Nil

FENBURY DCJ: The plaintiff was born on 5 February 1953. He was a self‑employed electrician. On 11 November 1998 the plaintiff was driving his Nissan Patrol 4‑WD, towing a dual axle fully laden tradesman's box trailer in a south west direction approaching the Mandurah by‑pass.
After stopping his vehicle in traffic he heard a sound of brakes screeching. The plaintiff then felt two impacts from the rear. The impacts were only moments apart. Each one was sufficient, according to the plaintiff, to propel him forward in his seat to the limit of his seat belt such that his head nearly hit the windscreen of his car. The second impact was marginally more severe than the first. After the first impact the plaintiff had turned his head to the left to try and see what had happened when he sustained the second impact.
The plaintiff did not have his foot on the brake of his vehicle at the time. The vehicle had manual transmission. He had put it into first gear and presumably had let the clutch out. However the trailer was self‑braking it had just been brought to a stop and its mechanism would have provided some braking effect. The plaintiff does not know how much, if any, his Nissan was shunted forward. It was about a half to three quarters of a car length behind the vehicle in front. He did not hit that vehicle. His best estimate is that it moved forward, if at all, no more than half a metre.
On inspection after the accident a Sigma Sedan was sitting under the rear of the trailer and hard up against the hindmost set of the trailer's wheels. Behind the Sigma was a RAV4 vehicle, driven by the first defendant, and behind that was a truck that the plaintiff estimated to be a 5‑8 tonne truck, which was driven by the second defendant.
Liability for negligence has been admitted on behalf of both defendants. This case requires an assessment of damages. There is a threshold issue of significance that relates to causation. The dynamics of the motor vehicle accident, comprising an acceleration and deceleration, indisputably caused some trauma to the plaintiff's cervical spine. However, the plaintiff's dominant current symptom relates to his lumbar spine.
The plaintiff's history is complicated by the fact that on 15 December 1998, just over a month after the accident, he slipped in his work place. He was walking in some haste across the floor when his left foot slipped a short distance forward. He did not fall, but he overcorrected and jerked his body and felt an effect in his lumbar spine. The following morning at 2.00 am, having got up from sleep to get a glass of water, the plaintiff experienced excruciating lumbar spinal symptoms.
The essence of the causation argument in the case is that the plaintiff claims his lumbar spine was injured in the motor vehicle accident. It is submitted on behalf of the defendants that the lumbar spine was injured in the work place accident and not in the motor vehicle accident and therefore cannot be the subject of an award in this action. There is also an issue about causation of the disc lesion at C5/6 being caused by the accident.
There are also some issues about quantum relating to partnership income, extent of disability and availability of alternative sources of income.

The plaintiff

The plaintiff is a married man with two independent children aged 25 and 21. He is currently unemployed receiving a Newstart allowance for people with incapacity.
Prior to the accident the plaintiff was a fit healthy person. He played pennant squash to C grade level. He played golf with a handicap of 18. He was a keen beach fisherman and 10‑pin bowler.
The plaintiff had no pre‑accident neck pain or back pain. He suffered a shoulder injury in squash in 1987 which was resolved with physiotherapy. In 1994 he suffered a back injury on the left hand side which comprised a muscle tear which also resolved.
Following his completion of third year high school the plaintiff qualified as an electrician in about 1974. He acquired other qualifications at TAFE thereafter including qualifications in air-conditioning for house and automobile and also in computerised machinery.
The plaintiff travelled around Australia following his qualification. He married in 1978, and commenced work with a company in Newman. In 1980 he went to Papua New Guinea working for a steel company. In 1982 following his wife's pregnancy he returned to Australia with the family, bought a house and set up a business in soils and garden supplies. That was in partnership with his wife.
In about 1983 he formed J & R Electrics. There was no partnership deed ever drawn up. The plaintiff re‑entered the electrical business but at the same time kept his garden suppliers company operating. In 1987 he moved to Mandurah. Electrical contracting slowly picked up but he did not employ any other person.
Following the recession in the late 1980's the plaintiff returned to Mandurah in 1990 where he worked for a while with a man named Keith Landweir who provided him with electrical work for three days a week. This was quite a lucrative period in the business. Eventually there was a disagreement and the plaintiff returned to Mandurah again doing full‑time work.
For the year ending June 1996 the plaintiff was mainly engaged as an electrician in household and light industrial work. He stated that he was working full‑time in the three years prior to the motor vehicle accident in his electrical business. He did not employ any other person.
The plaintiff described the physical demands of the employment. It required digging trenches for the installation of cabling. He was required to do work in ceilings and above his head. He was putting in lighting and light sockets and wiring and the like. He worked in confined spaces. There was a degree of climbing required. He needed to be able to move his back and neck freely to carry out this work.
For about five months before the accident the plaintiff obtained work from a company called Bell Fire. This was a fire alarm equipment company that provided smoke detectors and equipment of that kind. This work was demanding and the plaintiff had reached the conclusion that he would need to employ somebody to help him if he was to continue to do this work.
The plaintiff gave detailed evidence about the motor vehicle accident to which sufficient reference has already been made. There was no damage to the Nissan Patrol 4‑WD save that the towing hitch was bent. The towing hitch comprised a 16 millimetre thick tongue of metal, I infer iron or steel that protruded out from the rear of the vehicle. Through the end of the tongue was bolted a towing ball over which the socket of the trailer would sit.
As a result of the accident that tongue of metal was pushed up at an angle of 45 degrees. Minor repairs were required that involved heating up the towing hitch, straightening it back down to a horizontal position and replacing the ball.
The trailer sustained more significant damage. The floor of the trailer was crinkled and the rear door was bent. As I have mentioned, the trailer was found sitting on top of the Sigma Sedan that had been travelling behind the plaintiff. The bumper bar of the Sigma was hard up against the hindmost wheels of the dual axle. The plaintiff gave evidence that the Sigma was significantly damaged. The RAV4 was less damaged. The truck was leaking fluid from its radiator. It had sustained some frontal damage. It apparently was not driven away and had to be towed.
The plaintiff said that he felt a sore neck immediately after the accident. About 10 minutes later he developed a severe headache. He took some aspirin. The plaintiff drove one of the other drivers home and then took his trailer to a repair shop and had the hitch repaired, lights re‑wired and the tow ball replaced. Later he had the trailer repaired by having the damage to the tail gate and floor rectified.
On the same day as the accident, the plaintiff attended upon his general practitioner, Dr Walker. Dr Walker manipulated the plaintiff's neck, the plaintiff heard a click, and this relieved his symptoms of neck pain for a short while. The plaintiff said that low back pain came on gradually thereafter.
The plaintiff went back to work on the same day of the accident, at about 3.30 pm and he worked until 6 o'clock. He was in the middle of a job which took four days to finish. The plaintiff finished at 6.00 o'clock on that day because it was too painful in his back, in the middle, above the hip line, for him to continue. He went home and took Panadol, had a hot shower, his dinner, watched some television and then went to bed.
Over the next week the plaintiff said that he had constant neck and back pain. The intensity of it varied but not the location. He experienced his symptoms when he was digging trenches and when he was fitting light sockets which involved him working above head height. He said that he coped but he was slowed down by his symptoms. He would take five days to do a four day job.
In due course the plaintiff sought help from his son Stephen. He asked Stephen to assist because the plaintiff was suffering physical discomfort as a result of his work. Stephen Burns had previously been asked by his father, the plaintiff, to consider an electrical apprenticeship but had declined.
As a result of an increase in the plaintiff's symptoms he sought another appointment with Dr Walker but was not able to get one for a week and a half. Following a telephone discussion with Dr Walker he went and saw a physiotherapist, Alan Stacey, on 8 December 1998. He was very sore in the low back and in the neck at the time. The back pain was causing more problems to him. His son Stephen was still assisting him and he said that he would not have been able to do work if Stephen had not been there to assist.
Following consultation with Mr Stacey the plaintiff started to do exercises. He would do these in the mornings generally. His wife would help occasionally and he said that he has done exercises regularly ever since. He would exercise four to eight times a week depending upon what work he was doing at the time. His wife helps him by massaging him on occasions.
As I have said the plaintiff slipped at work on 15 December 1998. He was walking across the floor in some haste when he slipped on something and his left foot slipped forward as if the surface was wet. His foot slipped between 20 and 25 millimetres. He immediately felt sharp pain in the lower back, he swore, and continued on. He finished the job that day and then went home. The job required, amongst other things, fixing a blown fuse in some machinery. On driving home he felt very sore in the low back. It was sore that evening in spite of doing prescribed exercises. He had an early dinner and then went to bed. On getting up at 2.30 am to go to the lavatory, whilst walking down the passageway, his legs collapsed and he felt excruciating pain in the lower back. He saw Mr Stacey and Dr Walker later that day.
For the next three weeks or so the plaintiff said that the pain in his low back was excruciating. However, after treatment from the physiotherapist it gradually subsided such that he was able to return to work about six weeks after this incident. The plaintiff said that his back has never been the same since. He did not do any work during the six week period. He also suffered from neck pain throughout this period.
The plaintiff said that following his return to work his son Stephen was working with him. He had started work on 23 November 1998. The plaintiff said that his son had started to work in the business in part because of the plaintiff having a sore back but also because of the demands of the Bell Fire contract.
The plaintiff said that he would not have employed Stephen if he had not suffered his injury. He would have got another helper for the Bell Fire contract who would have worked part‑time. He said the Bell Fire work was periodic. The plaintiff said that when Stephen first started he was paid casual rates. Stephen did the digging because the plaintiff was unable to do so. The plaintiff eventually persuaded Stephen to take up an apprenticeship. The plaintiff's evidence was that he asked his son Stephen to help because he could not cope by reason of his injury. Apparently Stephen commenced an apprenticeship period early and then started the apprenticeship on 2 February 1999.
The plaintiff said that in 1999 his symptoms in his lower back and neck were constant. He received treatment regularly but it got to the point where his pain was controlled. He said that physiotherapist's fees were paid by the Insurance Commission of Western Australia up until a letter was received in 1999 and payment was ceased. The plaintiff said that he stopped receiving physiotherapy treatment because the debt grew too large. He discussed the matter with Mr Stacey and decided to stop physiotherapy and do his exercises religiously.
In August and September 2000 the plaintiff returned to Mr Stacey. For two months prior thereto his pain level had increased. He had more pain in his neck and low back and he was suffering from more headaches. He said that the exercises had reduced in their positive impact upon his pain. The plaintiff said that sitting in the car seat and driving and also working above head height would bring his symptoms on. He said that prior to the accident it was very rare for him to have headaches.
The plaintiff said that it was his back problem that concerned him the most. He said that he received most physiotherapy treatment to that area. He said he had difficulties in bending down. He complained of tingling in the arms and this was relieved by Mr Stacey who manipulated the plaintiff's neck. In 1999 and 2000 the plaintiff said he and his son Stephen divided the work load of the business. Stephen would do the digging and crawling about under low ceilings and the like. The plaintiff said that Stephen would do more work than he. The work activities the plaintiff was engaged in exacerbated his symptoms.
In 2001 the plaintiff was referred to Emil Popovic, a neurosurgeon. He was advised to restrict his work. The prospect of spinal fusion operation was raised with him. The plaintiff continued working until 2001. His son Stephen took on more work than he had previously. In 2002 there was no significant change in the work division between the plaintiff and his son. The plaintiff's symptoms were still constant being pain in the lower back and neck but he could control these by exercising. The plaintiff said that driving aggravated his symptoms. He said that his work activities, generally, would bring on his symptoms.
Apparently the plaintiff's son, Stephen, finished with G & R Electrics on 2 February 2003. By then he was a qualified electrician. The plaintiff said that it was not viable for the company to have two tradesmen on its books. Furthermore, Stephen was doing more work than the plaintiff.
The plaintiff said that after his son left J & R Electrics he became a bit more selective in the work that he would do. He had some lucrative jobs he was able to do and which kept the business going. He referred to specific jobs and stated that it was good luck that this work came in at this time. He said that this explained the reasonable income the partnership achieved at this time in spite of the plaintiff's symptoms. These jobs did not require much in the way of digging or working in ceilings.
On 30 June 2003 the plaintiff ceased work. The plaintiff said Dr Popovic advised him to do so and advised him to have an operation. He said that he ceased work on medical advice.
The plaintiff said he took medication at all relevant times, namely Celebrex, Panadol and Diazepam. He took Diazepam to sleep.
Since he stopped work the plaintiff said that his neck has felt better, it has been tolerable, but that it is "always there". He said that his back also has felt better although it gets worse when driving any distance.
Apart from having to give up golf, which he enjoyed very much, squash, beach fishing and 10‑pin bowling, the plaintiff said that his sexual life had been adversely affected. He has attempted some of these sports since the accident but has not continued.
The plaintiff said that but for the accident he would have worked until the age of 65.
The plaintiff proved his physiotherapy and travelling expenses.
With respect to the medical advice that he have a fusion the plaintiff said that he would not consider it under any circumstances. This is because of the risk of failure.
Cross‑examination commenced with counsel asserting that the modest costs to repair of the trailer strongly suggested minimal damage and therefore minimal impact. The damage to the trailer was of the order of $900. $1,300 would have purchased a new trailer.
The plaintiff said that he was aware Dr Walker had not mentioned him having made any complaint about low back pain when he initially saw him on the day of the accident. The plaintiff's attention was drawn to his letter dated 19 March 1999 addressed to the Insurance Commission. This letter was exhibit 7. In that letter the plaintiff explains in par 2 why it might be that he had made no mention of the lower back pain at the initial consultation. The plaintiff was asked about his evidence that he suffered back pain from the first day of the accident yet had not mentioned it to Dr Walker on the initial consultation. Nor had he mentioned it, apparently, in the accident report form dated 1 December 1998. The plaintiff's attention was drawn to his letter of 19 March 1999, exhibit 7, in respect of where it suggests that low back pain came on between 1 December and 8 December 1998. In other words, a week or two prior to his slip at work.
The plaintiff's attention was drawn to the reports of Mr Frank Bell and the reference there to the plaintiff not having had pain for two or three weeks. It was pointed out that he continued to work for four weeks after the motor vehicle accident. His attention was also drawn to his statement to the physiotherapist, Mr Stacey, that on 11 December 1998 his back was much improved. The plaintiff stated that everything "fell apart" in terms of his low back after the slip on the floor on 15 December 1998.
The plaintiff was taken through the reports of Mr Stacey and the lack of reference in them to neck pain. During this part of the cross‑examination the plaintiff requested to stand up for a short period. He did this on a couple of occasions.
The plaintiff was almost derisory in his answers concerning the examination by Mr Bell, the defendant's orthopaedic expert, especially as to the consultation on 16 August 1999. The plaintiff said that Mr Bell did not examine him as Mr Bell states on that first occasion but he did so on the second occasion.

The plaintiff was shown a schedule of revenue expenses of J & R Electrics. It was suggested to him that giving the increase in work in the year ending 30 June 1999, being the year after the accident, that he would have needed help anyway because he had too much work on. Thus it was not the case that he was required to employ help because of the accident. It was pointed out to him that his profit had been more than double that of the previous figure. It was pointed out that the following year in the year ending 30 June 2000 the plaintiff's income was still up although it was reduced on the previous year.
For the year ending 30 June 2001 the plaintiff was cross‑examined about his assertions that his neck pain had increased and that he had paraesthesia and tingling in his arm. He was referred to the neurosurgeon, Emil Popovic, who suggested an operation. The plaintiff was referred to the last major paragraph of Dr Popovic's report dated 20 February 2001 appearing at p 8 and p 9 of exhibit 13 where Dr Popovic deals with the issue of it being reasonable for the plaintiff to consider surgery for his C6/7 disc prolapse, but perhaps not for his disc degeneration in the lumbar spine.
Counsel then turned to financial matters in cross‑examination and again referred to the schedule of revenue and expenses. He pointed out that after the loss of the Bell Fire contract that the plaintiff's son retired and that the plaintiff was still earning a reasonable income averaging out according to counsel at about $12,000 per month. This was without the son helping.
The plaintiff said that the opinion of Popovic "scared me" with respect to the possibility of surgery being required. That was one of the reasons why he gave up work. He said that he finished at the end of June 2003 and that this was on medical advice. He does not think that anybody would now employ him because he has had a history of back pain. He said that he decided not to go ahead with work, that he retired. He decided "to continue to manage my pain" – which was an expression he often used in his evidence including "control my pain".
The plaintiff said that he saw Dr Edibam in August 2001 and his attention was drawn to the defendant's book of medical reports, the report of Dr Edibam p 14 dated 3 August 2001. Particularly his attention was drawn to Dr Edibam's statement, allegedly recording the plaintiff's history where it says:
"Throughout this time the Nissan Patrol Mr Burns was sitting in did not move forwards…"
It was put to the plaintiff that Dr Edibam would not have written this unless this was a history the plaintiff had given.
The plaintiff's evidence was that he did not know whether the vehicle had moved or not but if it had it would have moved a very short distance.
However, the plaintiff's clear evidence was that he was thrust forward to the end of the extension of his seat belt on two occasions by the impact to the rear.
The angle taken by counsel for the defendant was to the effect that because the vehicle did not move, therefore the plaintiff could not have suffered an acceleration/deceleration injury and therefore the accident has not caused his symptoms either in the neck or the back.
As to this I must say that it seems to me a lot of the energy would have been taken out of the impact by what happened with the trailer and the Nissan's towbar. The towbar is made of metal 16 millimetres thick and it was bent upwards at 45 degrees. That would have required a lot of force in my view. It must have had some transfer, as a matter of common sense and physics, to the vehicle itself. It is difficult to exclude the plaintiff's account of what happened to him and his behaviour after the accident is consistent with that on one view of it. However, of course, he worked that afternoon and he worked the following week.
In re‑examination the plaintiff explained that his letter dated 19 March 1999 was typed by his wife and would have been her words "nine times out of ten". That was exhibit 7.
He said that on his first consultation with Mr Bell that no examination had taken place at all but there was an examination on the second occasion. He said that he wrote a letter of complaint to Mr Bell about omissions in Mr Bell's reports immediately he became aware of those omissions.
On the second day of the trial when re‑examination resumed the plaintiff said that he first instructed solicitors in December 2000. He said that he had been unhappy with Mr Bell's non reporting of complaints of neck pain and he had written a letter dated 23 April 2004 which was exhibit 9. The letter was tendered only as to reference to Mr Bell. The plaintiff said that he had not seen Mr Bell's reports earlier than that date although he had asked to see them.
The plaintiff was shown the letter from the Insurance Commission of Western Australia dated 4 September 2000. This was exhibit 10. According to the plaintiff it contains material that would lead to an inference that the plaintiff had sought Mr Bell's reports earlier.
The plaintiff's attention was drawn to a letter from the Insurance Commission dated 19 June 2000 which was exhibit 11. Again this was as to the release of Mr Bell's report.
The plaintiff was shown his notice of intention to make a claim to the Insurance Commission of Western Australia on 13 December 1998 two days before his slip at work. This was exhibit 12. His attention was drawn to particular "(i)" where he described his injury as "neck and back injury". This was in contrast to the way he described the injury in the Insurance Commission Accident Report Form dated 1 December 1998 where he described his injuries as "whiplash‑neck", exhibit 6.
The plaintiff gave his evidence in a satisfactory manner. He was untroubled during cross‑examination. He had a mannerism of smiling at the court occasionally but there is nothing in that I think. People behave differently during the stress of litigation. He asked to stand up on a couple of occasions. When he did so he did not stand up for very long. He had an excellent pre‑accident work history. A critical issue is whether his low back pain was the result of the trauma of the motor vehicle accident or whether it was the result of his slip in the work place a month later. His description of the accident was of a fairly violent experience, being thrust to the end of his seat belt, his head nearly hitting the windscreen. He said this happened on two occasions. Obviously that would involve flexion forward from, one assumes, the waist in addition to the neck. It cannot be said that given it was a rear end collision, there would be no stresses upon the lumbar spine whatsoever. There would be little stress in the acceleration but in the deceleration I think it likely there would be some physical effect. The plaintiff says that his lack of reference initially to low back pain was because his neck symptoms were more severe. I think this is a reasonable explanation on the face of it.
I think there is some significance in the fact that the plaintiff recorded back injury complaint in exhibit 12 on an occasion, being 13 December, which was two days before the slip at work. It is difficult therefore to say that there was no back injury at all prior to the slip at work and that the slip at work is solely causative of the low back symptoms and therefore not compensable in this action. I think that is difficult to say on the documents before me putting aside the favourable impression I have of the plaintiff's credibility and reliability as a witness on this issue.

The medical evidence

The first witness called on behalf of the plaintiff was Emil Popovic, the neurosurgeon. Dr Popovic wrote seven reports which appear in exhibit 13. Dr Popovic saw the plaintiff some time just prior to 20 February 2001. He was referred by Dr Walker, the plaintiff's general practitioner. It was not a medico‑legal referral.
Attention was drawn to his second report dated 4 September 2001. Dr Popovic had said in that report on p 12 of the book:
"My assessment is that Mr Burns is likely to have had lumbar sacral disc degeneration prior to his accident in 1998, however one cannot be absolutely certain of this, but at least this probably apply to the L4/5 disc as a CT scan of 18.12.98 showed that there was reduced disc height. However, he had not had any real symptoms prior to the accident and so it is highly likely that the accident is responsible for his subsequent low back symptoms with pain radiating into his lower limbs, thus I can say that he has developed symptomatic L4/5 and/or L5/S1 pain following the accident."
The witness retracted what he said next in his report about the pathology of the plaintiff's disc prolapse.
Indeed Dr Popovic corrected that statement in his report of 19 June 2003 in p 3 thereof which is reproduced in p 28 of exhibit 13, par 12.7.
Much was made of this "back flip" by counsel for the defendant but I accept that it was a misunderstanding or error on Dr Popovic's part.
Dr Popovic said that it was he who advised the plaintiff to give up work when he saw him in 2003 and this was because his work was exacerbating his symptoms.
In cross‑examination it was obvious that Dr Popovic's history taking from the plaintiff was inaccurate in some respects. For example, he had the plaintiff travelling in a "RAV4" that was "hit by a truck".
Counsel for the defendant attacked the witness' reliability by reference to the above mentioned statement made by him to the effect that he did not think the plaintiff's cervical problems including disc prolapse were related to the accident. Dr Popovic did not seem to be particularly concerned about that and explained that he made a mistake in fairly unabashed terms. Dr Popovic was of the view that the slip at work was not as significant as he had previously thought and that the plaintiff's low back symptoms would have been present in any event. He could not exclude the slip at work as being an independent episode but his view was that it was connected.
Dr Popovic was not a particularly impressive witness in his presentation but he was an undoubted expert in the area. His history taking left something to be desired but I have no reason to reject his evidence. He was not provided with the reports of Mr Bell or the physiotherapy reports. His view was that the work demands of the plaintiff were aggravating his condition and that is why he advised him to cease work.
Dr Popovic was asked about the reference in the reports of the physiotherapist of 11 December to the effect that on palpation of the L4/5 this brought about a tingling sensation for the plaintiff. Dr Popovic stated it was obvious, therefore, that the plaintiff had not totally recovered from his low back problems by the time of his slip at work three days later. It may be, he said, that the plaintiff was recovering but it could not be said that he had recovered.
Mr Peter Watson is a neurosurgeon called by the plaintiff and he wrote one report dated 2 December 2003. The plaintiff was referred to Mr Watson by his solicitors. Mr Watson's view was that the plaintiff's injuries to his cervical and lumbar spine were connected with and a result of the motor vehicle accident on 11 November 1998. He expressed opinions about the extent of disability quantified at 10 per cent at each of both areas of the spine. In par 7 he said:
"At the present time your client has been advised not to continue on with his pre‑accident occupation. I would be of the opinion that your client needs to modify his work as an electrician and should preferentially have an apprentice or helper with him. … I don't know whether lighter duties are available to electricians however this would be the kind of thing that I think would be appropriate for Mr Burns."
Mr Watson's view was that the plaintiff's slip at work was relatively insignificant. This is strongly disputed by the defendant. Mr Watson said he did have Mr Frank Bell's report. He said that once there has been some trauma to the spine there can still be no significant symptoms but then something as small as, for example, a sneeze, can tear the last remaining attached fibres of tissue thereby resulting in serious symptoms.
Mr Watson's view was that the slip was insignificant and he was quite persuasive in his support of that view. He also said that it was a well known phenomena that more serious symptoms tend to mask lesser symptoms in a patient giving a history of events. He did say that the symptoms suffered by the plaintiff could be consistent with deterioration alone without trauma. However this is not the history of the matter.
Mr Watson's attention was drawn to a reference by Alan Stacey, the physiotherapist, in his report of 24 March 1999 where, at p 11 of exhibit 14, he said this:
"On 16 December 1998 Mr Burns complained that he had been much improved following the last therapy session (which was on the 11^th) until 15^th of December 1998 when he stepped on a greasy floor causing his left foot to slip forward slightly, and although he did not fall, he felt a sudden shooting pain in his back with paresthesia around his pelvis (which he had once previously reported with palpation of L5).
Mr Watson's view was that the reference to a previous reporting on palpation of L5 of shooting pain in the back with paresthesia is significant in this case. It appears to be a reporting of a matter of some neurological significance with respect to the lumbar spine which pre‑dates the slip and strengthens, according to the witness, the suggestion that the plaintiff did sustain some lumbar injury in the motor vehicle accident.
Dr Walker was the plaintiff's general practitioner and he wrote four reports. He described the plaintiff as a "stoic chap" who does not complain much. His view was that the plaintiff could no longer engage in the heavy aspects of work as an electrician. When Dr Walker first saw the plaintiff at 12.45 am on 11 November, the date of the accident, the plaintiff did not make any complaint of headache or backache but only of ache in the neck. The lack of complaint about headache and backache was regarded as significant by counsel for the defendant.
Plainly however, when the plaintiff attended for physiotherapy shortly thereafter he did complain of low back and neck pain.
Dr Walker recorded that there were no severe injuries apparent when he saw the plaintiff on 11 November. He was under the mistaken impression that the plaintiff had fallen on 15 December, rather than slipped at work. He stated that he did not see much of the plaintiff after 15 January 1999, and indeed only saw him on three occasions up until June 1999. He said the plaintiff had not mentioned any complaint about a back problem but at the same time the plaintiff had been seeing his physiotherapist. In his final report on 11 July 2003 Dr Walker gives an opinion generally supporting the plaintiff's claim but it is not substantiated in any detail by regular consultation in the interim period.
Whatever can be made of the evidence of Dr Walker, and indeed of other medical practitioners, there is no doubt in my view that the plaintiff did indeed complain of low back pain prior to the slip at work on 15 December.
In cross‑examination counsel for the defendant put to Dr Walker Mr Bell's reported observations of the plaintiff in March 2000 to the effect that the plaintiff had no complaint of headache or neck pain. He put it like this at T176:
"That is Mr Bell's report, 10^th March 2000, based presumably upon what Mr Burns told him and his examination. What I'm suggesting to you, Dr Walker, is that if he had no headache or neck pain at that time and given the degenerative condition of his neck, you could not blame a recurrence of his neck pain on the episode of trauma back in November 1998?‑‑‑Yes I understand the point you are making.
That's a reasonable point to make?‑‑‑Its not an unreasonable conclusion Yes."
It would appear that Dr Walker did give some ground in relation to his opinion but it needs to be realised that the propositions put by counsel were based upon an acceptance of the accuracy and reliability of Mr Bell's findings. At T179, in re‑examination, the following exchange occurred between counsel and Dr Walker:
"If it were established that in fact on one occasion previous to the fall on palpation of L5 by Mr Stacey, that had produced either sudden shooting pain and/or paresthesia around the pelvis would that be consistent or inconsistent where there had been neurological symptoms before the fall?‑‑‑That would be consistent with neurological damage before the fall.
Does that assist you in determining – would that bit of added information assist you in determining any opinion as to whether or not the herniation shown on the cat scan was related or unrelated to the slip?‑‑‑Yes it would indicate that the herniation was increased or exacerbated by the fall but was pre‑existing – by the – sorry. I keep using the word "fall". It wasn't a fall; it was a slip and a jarring. Yes, and that would indicate that it was pre‑existing.
That the herniation pre‑existed the slip?‑‑‑Yes."
The final witness heard on the second day was Dr John Ker, called by the plaintiff, who wrote four lengthy reports that appear in exhibit 13. The plaintiff was referred to Dr Ker by his solicitors. He saw the plaintiff for the first time on 20 October 2001. In his lengthy and detailed report he sets out the history of the matter and his observations on examination. At p 4 of the report, being p 16 of the book, he said:
"I cannot say that he would not have sustained some injury to his lumbar spine when he slipped in 1998 if his back had not already been injured in the motor vehicle accident."
Dr Ker gave minimal evidence‑in‑chief. He was basically called and made available for cross‑examination.
In his first report of 5 November 2001 Dr Ker states that the plaintiff suffered acute strain injuries to the cervical spine and lumbar spine and that the cervical spine injury had produced disc lesion. He said it was unlikely the plaintiff recovered from his lumbar spinal injury after the motor vehicle accident but before the slip at work. He said that "given the reported violence" of the collision that there was a causative connection between the motor vehicle accident and the plaintiff's symptoms. He said the plaintiff was unlikely to recover given the degenerative pathology. At p 6 of the report Dr Ker said:
"It is entirely reasonable to suggest the motor vehicle accident has led to an increase in the symptoms that arose from his underlying lumbar degenerative intervertrable disc disease."
In his second report of 6 November 2002 Dr Ker mainly dealt with issues relating to retained earning capacity and matters of that kind. In his next report of 17 January 2003 he again supported the plaintiff's claim that he required assistance from an apprentice in the course of his work and that his working life would be curtailed due to degenerative change in the neck and back which had been accelerated by the motor vehicle accident. Dr Ker felt the plaintiff would have to retire early, possibly at the age of 60. His final report of 23 August 2004 was also primarily concerned with loss of earning capacity.
In cross‑examination Dr Ker said that he is usually required to consider disability and impairment rather than blame or causation. At transcript 186 he said:
"I think that we're dealing with injury, acute acceleration, deceleration injury to the structures of the vertebral column, muscle and ligament, intervertrable disc, and potentially facet joint.
You would have had symptoms straight away from an acute injury wouldn't you?‑‑‑And I believe Mr Burns described to me acute symptoms.
In the neck and the low back?‑‑‑Yes.
So you had a history of acute symptoms in the neck and low back?‑‑‑Yes.
Immediately?‑‑‑Within I believe three to four hours."
At T187 after accepting that the first significant history of work disruption for the plaintiff followed the slip at work counsel then put:
"Yes. Really, that was the cause or the start of any reasonably significant problems in the back?‑‑‑No. I mean, this man has to be thought about in the context also that he has had back pain intermittently even before this accident so as to take a minor incident which…
A motor vehicle accident?‑‑‑No, to take a minor incident such as the slip from the oil, which certainly produced acutely profound symptoms, and to place this just based on the initial acute symptoms in what was, I believe, to be physically a relatively modest event, I don't think is how I have interpreted the circumstances at all. I have interpreted actually quite diametrically opposite to that.
If there were no acute back symptoms after the motor vehicle accident, you'd agree with Dr Rosenthal?‑‑‑If this man had not had any acute back symptoms in the four weeks that elapsed until this incident Yes, Yes, I would certainly have to say that the likelihood of the motor vehicle accident contributing to this man's back pain would be minimal.
Define 'acute'?‑‑‑In terms of you'd like it defined in length of time or severity or.
Let me tell you what I understand by acute 'a sudden onset of fairly sharp pain'?‑‑‑I think if this man had not had the onset of intrusive pain outside his previous experience of pain between the interval of when the motor vehicle accident occurred and this incident, if he hadn't had any back pain in that time – any acute back pain in that time.
We're getting back to 'acute'…?‑‑‑If he hadn't had any pain in that time you could not ascribe the development of pain to that motor vehicle accident. You'd have to say 'No its more likely to have occurred as a result of a slip' because – in the postulation that he was symptom free."

As I have already found however there is evidence, which I accept, that the plaintiff had suffered back pain between the motor vehicle accident and the slip at work. He suffered back pain as a result of the accident. He may not have suffered it immediately, but as the plaintiff explained in his letter which was exhibit 7, he had more significant concerns about neck pain and headache.
Then at T191 Dr Ker expresses the view that the motor vehicle accident did indeed have a role in the plaintiff's symptomatology. He is cross‑examined about his medical report of 5 November 2001 and in particular at p 16 of exhibit 13 and this is put:
"You say on p 16 of your report, Dr Ker, of the book, about five or six lines within the book –
'I cannot say he would not have sustained some injury to his lumbar spine when he slipped in 1998 if his back had not already been injured in the motor vehicle accident.'
Now, as I read that, you're saying 'well Yes it would have caused some injury, it could have caused some injury irrespective of the motor vehicle accident'?‑‑‑Again that's in direct answer to the question about it.
Yes whatever question its answering, I'm happy with that statement but that's what it says isn't it?‑‑‑That's what it says.
So his lumbar spine could be in the condition it now is even if the motor vehicle had not occurred?‑‑‑No, I don't think I'm saying that.
Though I'm putting it to you it could be couldn't it?‑‑‑It could be. My view personally is that it isn't; that it is in a more advanced state of wear or degeneration whichever term you wish to use as a consequence.
Sorry as a consequence of what?‑‑‑Of the injury.
Of the slip?‑‑‑No as a consequence primarily of the injury sustained in the motor vehicle accident but I cannot rule out a contribution from the slip. That's what I'm saying I think."
And then on T192:
"His back would be in the condition it now is even if the motor vehicle accident had not occurred?‑‑‑No because.
Because of the acute injury he had before?‑‑‑The situation he now is in is, in my view, accumulation of his pre‑existing trait to degenerative diseased, the motor vehicle accident and the slip. If we're saying he didn't have the motor vehicle accident in that equation, I'm not saying that he would clinically be in the situation that he is in now. In time he might well be, as time proceeds, but I'm not saying I'm saying that he is not necessarily in that situation right now.
That depends on your history of an acute injury and a fairly severe motor vehicle accident?‑‑‑Well it depends on the history of the motor vehicle accident that I've taken which I believe to have been of significance, and of this episode and of degenerative disease."
Later at T202 the witness was taken to the observations of the physiotherapist Mr Stacey on palpation of L5 some four days before the slip. Dr Ker thought that was a significant finding by Mr Stacey. He said:
"I think its significant. Our backs aren't normally tender when they're palpated so I think that tenderness is significant. Some people would describe varying degrees of tenderness and I suppose the more tender something is the more significant it is."
Later in the exchange he says that the observations of the physiotherapist are suggestive of pathology of some significance, but he could not be any more specific.
The final expert witness called by the plaintiff was Mr Stacey, the physiotherapist. He described the plaintiff's pre‑accident spinal symptoms, which are uncontroversial. Mr Stacey brought with him a collection of his notes. Counsel led him through a lengthy explanation of what his writings meant. They were quite unintelligible otherwise. At T212 Mr Pratt commences his translations. He records a complaint of low back pain on 8 December 1998 which was a week or so before the slip at work and perhaps three weeks after the accident. As a generalisation the notes taken by Mr Stacey support the proposition that low back pain increased after the motor vehicle accident and before the slip. I have no reason not to accept Mr Stacey's evidence in respect of that matter. Notably, the observations were made by Mr Stacey in the very earliest stages of the history of this matter. Certainly, years before litigation was commenced. The plaintiff went to the physiotherapist because he was unable to get an early appointment with his general practitioner. The physiotherapist's notes are contemporaneous notes and they are consistent with complaints. Mr Stacey usefully summarises his views in his report of 24 March 1999 which is at p 10 of exhibit 14. I do not think it needs to be referred to in detail. As I have said evidence from Mr Stacey clearly supports the proposition that there were post motor vehicle accident pre‑slip complaints by the plaintiff of low back pain as I have stated and although the history of the low back pain that follows the initial complaints is perhaps patchy, there is no doubt that the plaintiff had pre‑accident lumbar spinal degenerative disease. The fact that the plaintiff did complain prior to the slip at work of low back pain would seem to me to increase the probability that the motor vehicle accident, in some way or other, activated the process of the plaintiff's degenerative disease becoming symptomatic.

Civilian witnesses called by the plaintiff

The plaintiff also called evidence from his son and his wife. These witnesses dealt primarily with aspects of the plaintiff's claim for economic loss.
As to his wife, Rianne Burns, she gave evidence in a satisfactory manner. She married the plaintiff in 1978. During the various businesses that the plaintiff was involved in over the years Mrs Burns looked after the books and finances. She explained the plaintiff's financial records. She expressed the view that her son, Stephen, left the firm once he had attained his qualification as an electrician, for financial reasons related to the business not being able to afford to pay a fully qualified tradesman. I accept her evidence in respect of that matter. She also confirmed that the plaintiff exercises daily in an effort to reduce the adverse effect of his symptoms.
Stephen Burns, the plaintiff's son, was born in April 1979. He was 19 years of age when the plaintiff was injured. He had been working away at that time but he returned home to assist the plaintiff in his business because, according to him, the plaintiff was "in a bit of pain and grief and that". He said the plaintiff had regularly offered him work as an apprentice but he had previously declined because he did not want to work with his father. When he helped his father he did all the labouring jobs.
He was eventually persuaded after the accident to commence an apprenticeship which he started on 2 February 1999, three months after the accident. Some time later what was known as the Bell Fire contract, which was a lucrative work contract for the business, became available. Stephen Burns was an apprentice until February 2003. He said the plaintiff never did the heavy work and he described this at T243 and following. He said that he wanted to go out on his own as soon as he qualified but also he said that the plaintiff's business could not afford to pay him. In cross‑examination Stephen Burns was gently challenged about some of his evidence. At T248 his evidence was that the plaintiff suffered from increasing restriction in his work as time went by. Both Mrs Burns and her son, perhaps predictably, supports the plaintiff in various aspects of his claim for economic loss. I have no reason to doubt their evidence in terms of its honesty.

Defendant's case

Three medical practitioners gave evidence on behalf of the defendant. The first witness called was Dr Frank Bell, a retired orthopaedic surgeon, who wrote three reports having first seen the plaintiff on 21 July 1999. The plaintiff had been referred to him by the Insurance Commission of Western Australia.
Dr Bell's evidence suffered from the fact that his contemporaneous notes of his examination and consultation with the plaintiff had been lost, apparently eaten by white ants. Consequently, he was forced to rely upon his medical reports, and the accuracy of those reports viz a viz his lost notes. When these difficulties are combined with Dr Bell's advanced years, with all due respect to him, his evidence seemed to me to suffer.
Furthermore, Dr Bell's first report, being dated 16 August 1999, was written nearly four weeks after his consultation on 21 July. And, by way of further example of concerns I have about this evidence, the report is written in unusual terms. For example, on p 2 under the heading "His specific complaints when I saw him were; "(paragraph 1)" he has no complaint of headache".
The features of Dr Bell's evidence to which I have referred may not only have significance concerning his evidence because the other expert medical witnesses called by the defendant, Dr Edibam and Dr Rosenthal, each of whom saw the plaintiff considerably later, both relied on Dr Bell's 1999 observations.
Dr Bell recorded the plaintiff as having said that his back pain did not come on for some two to three weeks after the accident. Noting that the slip at work was some four and a half to five weeks after the accident, Dr Bell says that the symptoms in the back became very much worse following the twist to the back. Dr Bell's view was, as he put it:
"I think therefore one will have to say that I cannot believe that any back symptoms he has were related to the motor vehicle accident, but rather to his twist to his back avoiding a fall."
Dr Bell saw the plaintiff in March 2000 where he reinforced his view that "the motor vehicle crash related injuries have not significantly reduced his capacity to carry out full time employment." In the report of 10 March 2000 Dr Bell makes no mention of the slip at work suffered by the plaintiff in December 1998 about four and a half to five weeks after the accident. He said that on examination the plaintiff had excellent lumbar spine movements and there was no pain on extension or hypo‑extension.
In his final report, written two weeks or so later, Dr Bell said:
"I am sorry that my report of the 10^th of March was wrong. I had forgotten that he had a slip some time following the motor vehicle accident resulting in him being partially disabled for about six weeks.
I confirm that I believe the motor vehicle accident had nothing to do with the onset of lower back pain."
I must say, for the reasons that I think are obvious in the above remarks, that I have some difficulty placing much weight on the opinion of Dr Bell in this matter.
Dr Edibam was the other orthopaedic surgeon called by the defendant. He saw the plaintiff some two and a half years after the accident. He recorded a history from the plaintiff to the effect that the Nissan vehicle in which the plaintiff was driving had not moved forward at all.
This was relied upon by counsel for the defendant as evidence of a prior inconsistent statement made by the plaintiff who, at trial, said that his vehicle did not move forward much but if it did it would have only been about half a metre. Because of that view, Dr Edibam's opinion was that, on the history he took, the plaintiff could not have suffered injury in the crash at all.
Dr Edibam had a barely concealed bias or mindset in his evidence particularly in cross‑examination. He wrote two reports on 3 August 2001. The second report on that day which is at p 18 of exhibit 15, seems to me to demonstrate Dr Edibam's lack of independence. Apparently unrequested he wrote a second brief letter to the solicitors emphasising the evidence about the movement of the vehicle. I shall quote the letter in full:
"I must point out to you one fact regarding the motor vehicle accident. It is quite definite that the vehicle that Mr Burns was sitting in at the time of the accident did not move. It remained static and consequently I cannot see how he could have sustained any injuries as injuries resulting in rear end collisions are due to acceleration and deceleration when the body is thrown backwards and forwards.
I am just pointing this out to you so that this point can be clarified again."
Given that Dr Edibam first examined the plaintiff two and a half years post accident and given his reference to observations of Dr Bell which I think need to be very carefully considered before reliance is placed on them, I, again, have some concerns about placing any significant weight on his opinion.
However, I do note that his views about the matter are not dissimilar to those of Dr Rosenthal, the rehabilitation specialist to whose evidence I will now turn. But before leaving Dr Edibam I should say I think that his views about his belief that there was no movement of the vehicle and his reliance upon that fact is a weakness in his evidence.
Dr Rosenthal was the most impressive of the medical witnesses called on behalf of the defendant. Dr Rosenthal is a physician in rehabilitation medicine. He saw the plaintiff on 7 and 8 August 2003, almost five years post accident. He wrote a detailed report on 8 August 2003. Dr Rosenthal was provided with the opinions of other witnesses including Mr Bell, Dr Popovic, Dr Edibam and Dr Ker.
As he put it, Dr Rosenthal embarked upon the exercise of carefully analysing the history and chronology of medical events in this matter. In a brief report he wrote on 21 April 2004, explaining why he did not feel it was useful to see the plaintiff again for review, he said:
"The nub of this issue is causation. This man has significant back pathology and from my medico‑legal perspective the issues of capacity and disability are not significantly in question."
That indeed was Dr Rosenthal's view in the witness box. He was supportive of the plaintiff's present complaints of disability and incapacity. He agrees that the plaintiff has significant lumbar spinal degeneration. On p 4 of his report of 8 August 2003 Dr Rosenthal states:
"There would appear to be satisfactory medical evidence that the crash imposed some degree of strain on both his cervical and lumbar region, given the acute onset of pain in both regions, though this has to be seen in context. His general practitioner did not assess his injuries as being particularly severe. That proposition is supported by Mr Burns being able to initially continue working.
The medical reports do indicate that the incident that occurred at work on 15 December 1998 was an anatomical event of clinical significance insofar as it heralds the onset of lower limb sensory symptoms, the back pain was made more severe and there was a concomitant change in his work capacity."
Dr Rosenthal goes on to explain why he does not think that the disc protrusion at C6/7 is related to the accident but is degenerative. He then concludes by saying:
"It is my opinion therefore that the motor vehicle accident per se has not prevented Mr Burns from working as an electrician. He does have a significant current level of lumbar disability which I attribute to degenerative change. …"
Dr Rosenthal regularly gives evidence in cases of this kind on behalf of the defendant, in reality an insurance company. His mode of expression and report writing suggests that he regards himself as a medical inquirer who, sleuth‑like, meticulously reviews all of the contemporaneous documentation and history and then forms an opinion. He tended to argue the case for the defendant both in his reports and in his evidence. That is not to say that his view should be discounted, but, as he would put it, his views need to be assessed in the context of their formulation.
One of the main reasons why Dr Rosenthal is sceptical, and in fact discards the motor vehicle accident as being significant in a causative sense is the absence of significant dramatic, near immediate, back pain post accident. At transcript 296 Dr Rosenthal firmly opines that the absence of that sort of pain contra indicates the motor vehicle accident as having disrupted the lumbar disc. As he put it:
"…I am referring to a process of anatomical disruption that some people might argue now represents the sine qua non of his disabilities – then that event would have had to have been significant and clinically quite dramatic in terms of close time proximity of the accident. I'm talking hours, not days. So if back pain didn't come on for a couple of days – and I have history that it did come on earlier – that again supports the proposition that a major anatomical insult didn't occur to that disc at the time. It's not to say he didn't have some back ache due to soft tissue strain, because that's the probable mechanism, but the question is was that disc anatomically disrupted by the collision, and I don't believe so."
Dr Rosenthal was quite impressive as a witness in his evidence‑in‑chief. He was forthright, firm and definite in his views.
In cross‑examination counsel for the plaintiff put to Dr Rosenthal that the physiotherapist had reported on 11 December 1998, which was just a day or two before the fall at work, that palpation of the lumbar spine had caused shooting pain in the back and paresthesia around the pelvis (transcript 299). Dr Rosenthal conceded that this suggested there was nerve root irritation prior to the slip at work. Later, Dr Rosenthal seemed to change his view about this and he was quite dismissive of the physiotherapist's observation. At the bottom of transcript 302 top 303 Dr Rosenthal said this:
So what was the major anatomical incident which happened in the slip?‑‑‑The slip – I haven't said that the slip is a major anatomical incident. What I've said is that other people, other medical observers with specialist qualifications, have attached some anatomical importance to it and that it did herald the onset of some sign. What I'm saying is – and the slip obviously wasn't a major episode of trauma. I mean, that's an issue of common sense. Here's a man with an advanced disease L4‑5 disc and, to a lesser extent, below that. These sorts of things are inevitable consequences of this type of problem. There is some inevitability about the problems that he has eventually ended up with; that's what I'm saying. Its not, in my view, a practical – its not a medically plausible proposition to be placing these problems at the feet of either the motor vehicle collision or a subsequent case at work. Its an inevitable outcome of a disease process."
And then further at T305 Dr Rosenthal said this:
"I know its tempting to draw causation – a conclusion through some sort of time sequence, but in medicine the fallacy of the logic of post hoc ergo propter is recognised. It was Hypocrites, the father of medicine, who was the first person to point this out. You see, with degenerative change causing problems, it isn't one activity that really sets things off unless that particular thing involves very great forces, with anatomical disruption to articular surfaces, such as if somebody smashes their knee and all the articular cartilage is gone. We know that that's an event that has caused disruption to the thing and that the arthritis that followed is post‑traumatic. In a natural degenerative process in the spine, it’s a cumulative effect of many things over the years and, in particular, that genetic predisposition that you heard me talking about earlier. So to put things at the feet of one thing when you're looking advanced degenerative change is not – irrespective of time – there has to be a better correlation than just some time relationship if you're going to really address the matter of medico‑legal causation exhaustively and competently."
Dr Rosenthal was then taken to Dr Bell's reports and admitted that he placed reliance on Mr Bell's reporting.
I have some concerns about the effect that reliance upon Dr Bell's reporting, about which I have already made some remarks, has upon Dr Rosenthal's opinion. Putting that to one side however it is quite clear that in a medical sense Dr Rosenthal's evidence strongly is to the effect that the motor vehicle accident did not cause the plaintiff's spinal symptoms. Of course there may be a difference between medical and legal causation.

As will be apparent from these Reasons so far, I have a favourable view of the plaintiff and his witnesses. The plaintiff has the burden of proof to satisfy the Court on the balance of probabilities that his case has been made out. With varying degrees of impressiveness the plaintiff's medical witnesses support his case on causation. Although I found Dr Rosenthal's evidence, as I have indicated, to be impressive, on the balance of probabilities I prefer the plaintiff's case and I am satisfied on the balance of probabilities that it was the motor vehicle accident that occurred on 11 November 1998, that set in train the processes that caused the plaintiff to have the cervical and lumbar symptoms about which he complains. Although the motor vehicle accident was obviously not a high speed collision, the weight of the vehicles involved is significant.
I do not accept the defendant's case that the Nissan Patrol did not move. I do not think one can say that because it moved only a short distance, even half a metre, that there is therefore no significant acceleration/deceleration to be experienced by a passenger. In my view a sudden acceleration albeit for a very short distance can produce some form of acceleration/deceleration. There was a lot of force applied to the vehicles behind the Nissan Patrol. The bending of the 16 millimetre metal tow hitch is something that I think would be easy to under‑estimate. Obviously I am not an expert in physics, and there has been no expert evidence called on the point, but in my view there would have been a diffusion of energies of impact in the trailer and in the hitch, obviously, but it was a big dual axle trailer and it would have applied force directly to the Nissan which must have had some acceleration/deceleration. In my view the vehicle does not need to move, necessarily, for there to be some acceleration/deceleration. For example, a vehicle can rock on its own suspension.
But be that as it may I accept the plaintiff's evidence that he did experience the physical violence he describes following the two impacts. I have no reason to doubt the truthfulness of that evidence and I accept it.

Causation

As will have been apparent the primary issue in the case was the question of causation, that is to say, whether the plaintiff's physical difficulties since late 1998 up until the time of trial and continuing, are the result of the physical effects of the motor vehicle accident that occurred on 11 November 1998.
I have already expressed the view that given the plaintiff had post accident low back pain, and neck pain, prior to the slip at work, and thereafter, that I accept the gist of the medical evidence called by the plaintiff. That is to say that although the accident itself did not produce severe symptoms, it rendered symptomatic a previously asymptomatic degenerative condition of long standing. And, as nearly all medical witnesses agreed, the plaintiff's difficulties presently are caused by long standing degenerative spinal disease.
Counsel for the defendant helpfully drew the Court's attention to the fourth edition of Lunz's book on the Assessment of Damages at s 5, p 186, par 2.5.2. The author there picks up references to State Government Insurance Commission (Western Australia) v Oakley (1990) Aust Torts Reports 81‑003 – a decision of the Full Court of Western Australia. I shall quote par 2.5.2 as follows:
"The relevant rules where a plaintiff sustains further injury in a distinct subsequent accident have been conveniently restated as follows;
1.Where the further injury results from a subsequent accident, which would not have occurred had the plaintiff not been in the physical condition caused by the defendant's negligence, the added damage should be treated as caused by that negligence;
2.where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant's negligence; and
3.where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained includes no element of aggravation of the earlier injury, the subsequent accident and further injury should be regarded as causally independent of the first."
In my view, having regard to the evidence, this case falls within either par 1 or par 2, but not par 3. It seems to me on the balance of probabilities, and as a matter of common sense given the plaintiff's history, that whatever happened to his lumbar spine in the motor vehicle accident was a significant factor in his disc herniation suffered as a result of the slip at work five weeks later. There is no real doubt that following that slip at work the plaintiff commenced to and increasingly continued to suffer symptoms of degeneration in his lumbar spine. Similarly, given his lack of pre‑accident symptoms I find that the difficulties he suffers with the disc in his cervical spine are also related to the motor vehicle accident.

Quantum

General damages – pain and suffering

Having seen the plaintiff give his evidence, having reviewed his evidence and the medical evidence, and bearing in mind the favourable view I have about his reliability and credibility as a historian, furthermore bearing in mind that his evidence is supported by his wife and son, I conclude that a reasonable award for general damages in this matter would be 15 per cent of the prescribed maximum amount of $257,000, ie that is 15 per cent of a most extreme case, thus resulting in an award of $25,550 after deducting the prescribed sum of $13,000 in accordance with the legislation.

Past loss of earnings

As I have mentioned the plaintiff worked as an electrician, relevantly, for all of his working life. In 1983 he established a business called J & R Electrics with his wife. From 1987 the business was his sole source of income. The structure of the business was that the partnership was equally owned by the plaintiff and his wife. Immediately prior to the motor vehicle accident the plaintiff would carry out all the electrical work of the business. Prior to the accident the plaintiff's wife would look after the financial aspects, bookkeeping, invoicing and the like.
Immediately after the motor vehicle accident the plaintiff returned to work and soldiered on although he had some difficulties in doing some of the more physically demanding aspects of the work. The plaintiff's son, Stephen Burns, who was previously unwilling to work with his father provided voluntary assistance for a time. However as a result of the accident and the slip due to the plaintiff requiring assistance, his son commenced employment on a more formal basis.
Following the slip on 15 December 1998 the plaintiff became totally incapacitated for about six weeks, two weeks of which went over the Christmas period.
The plaintiff suggests a basis of calculation by reference to average weekly profits achieved by the partnership during the financial year ended 30 June 1998. During that year the profit was $58,640 which equates to average weekly profit of $1,128 or net weekly $830.
Thus for the four weeks following the slip at work at $830 equals $3,320.
It is then submitted that in the financial year ended 30 June 1999, that if the plaintiff had not been injured, he would not have required any assistance in carrying out the work of the partnership save for the work that was related to the Bell Fire contract. It was submitted that the expenses incurred by the partnership in employing the plaintiff's son Stephen for all work except for the Bell Fire contract work was the sum of $6,155 (refer to exhibit 2 and the schedule of past costs incurred by the partnership in respect of employing Stephen Burns). I would allow that sum.
For the financial year ending 30 June 2000 it is submitted that the plaintiff would have required assistance at all times whilst he was carrying out work for the Bell Fire contract even if he had not been injured. I think that is correct. It is submitted that for all other work of the partnership the plaintiff would not have required any assistance had he not been injured. It was submitted that the expenses incurred by the partnership in employing the plaintiff's son for all work except for Bell Fire work was the sum of $13,082 which I allow (refer to exhibit 2 abovementioned and the schedule abovementioned).
Similarly, for the year ended 30 June 2001 in accordance with the plaintiff's schedule which I accept in respect of this matter I allow the sum of $18,655. I accept that the plaintiff had a need for substitute labour.
For the year ended 30 June 2002, in accordance with the schedule, I allow the sum of $27,181.
For the period 1 July 2002 to 2 February 2003 on which latter date Stephen ceased his employment with his father because the business could no longer afford to pay him as a qualified tradesman, I allow the sum of $17,659.
I am not prepared to allow the claim from 3 February 2003 to 30 June 2003 being based upon a very generalised assertion of a reduced work rate caused by the accident.
The final item under this head related to a claim for the period from 1 July 2003 to 28 January 2005. This was a period of 82 weeks. It was asserted the plaintiff was totally incapacitated from all type of work during this period. I do have some difficulties in accepting the assertion the plaintiff has been totally incapacitated during this period. As the plaintiff's counsel during his final address at T374 candidly observed there is some concern that Dr Popovic, the plaintiff's neurosurgeon, unnecessarily alarmed him into giving up work prematurely and completely. During the trial the plaintiff did not display any obvious physical difficulties at all, save that he stood up on two occasions. He did not appear to have any difficulties in movement. I am not prepared to find that he has been totally incapacitated for the period claimed.
In my view he could have continued to work as an electrician but we would have been required to pay for assistance to cope with heavy aspects of the work.
Similarly to the method of assessment of future loss of earning capacity, which I adopt hereunder, a fair award for this period is to assume a loss of $400 per week multiplied by 78 weeks equals $31,200.
Thus, I allow the claim for past loss of earnings in the total sum of $117,252.

Interest on past loss of earnings and special damages paid by the plaintiff

A rate of interest at 6 per cent per annum seems to me to be reasonable.
I refer to the schedule handed up by counsel and accept the calculations described therein for the period to the financial year ended 30 June 2003 which, adding up the interest calculations set out results in a total of $17,576.
Then I add interest on past loss of earnings for the period 1 July 2003 to 28 January 2005 on the sum of $31,200 for one year and seven months (to 1 February 2005) at 6 per cent equals $2,957.
Interest on special damages paid by the plaintiff estimate as per the schedule $200.
I award $20,733 in respect of interest.

Future loss of earning capacity

The plaintiff's claim for future loss of earning capacity was put by counsel on three alternative bases or, as he called them, scenarios. I was provided with a helpful schedule. Scenario one relates to the situation where the plaintiff never returns to work. I do not think that that is an appropriate basis for calculation and neither, it seems, did counsel. The scenario most favoured by counsel for the plaintiff was based upon the costs of substitute labour, that is, a figure which would represent the cost of the plaintiff being required, having continued to work as an electrician, to hire somebody to do the heavy work he can now no longer do.
In my view that is a reasonable basis to proceed, certainly more reasonable than the other two scenarios referred to in the schedule. The submission was put in this way and I think it has some logical attractions. It was submitted:
·That prior to the accident it was the plaintiff's intention to work as a self‑employed electrician to the age of 65 years, a further period of 13 years.
·The plaintiff is now only able to work as an electrician in a modified way with the assistance of a labourer or an apprentice which assistance he shall require on a full‑time basis.
·The cost of employing a full‑time labourer or apprentice is approximately $20,000 per annum or $400 per week. The 13 year multiplier is 475.7. A reasonable discount for contingencies is 4 per cent.
·The plaintiff's future loss of earning capacity measured by the cost of substitute labour would therefore be $182,669 calculated as follows:
Weekly loss $400 x 13 multiplier 475.7 = $190,280. Discount by 4 per cent = $182,669.

Plaintiff's schedule of past physiotherapy expenses

The amount paid by the plaintiff I find to be $2,523.25.

Special damages excluding physiotherapy

Amount paid by plaintiff $1,020.70.

Travelling expenses

I allow this as per the lengthy schedule provided in the total sum of $582.75.
In my view the plaintiff should be entitled to judgment in the sum of $350,330.70.