Campton v Centennial Newstan Pty Ltd (No 2) - [2014] NSWSC 1799

Supreme Court

New South Wales

Medium Neutral Citation: Campton v Centennial Newstan Pty Ltd (No 2) [2014] NSWSC 1799
Hearing dates: 24-27 February 2014; 17-21 March 2014
Decision date: 17 December 2014
Jurisdiction: Common Law
Before: Hall J
Decision:
The proceedings are to be re-listed on 13 February 2015 for the purpose of providing the parties with an opportunity to check calculations, deductions and adjustments required by law and otherwise in accordance with this judgment.
[NOTE: At handing down of judgment, the date for re-listing was amended to 20 February 2015]

Catchwords:
TORTS - negligence

WORKERS COMPENSATION - employment - mining industry - plaintiff injured in workplace accident at a coal mine in 2010 - plaintiff suffered spinal injury - liability admitted during the hearing -defence of contributory negligence withdrawn during the hearing
DAMAGES - consideration of the quantum of the plaintiff's claim - principles to be applied in determining partial or total incapacity for work - determination that the plaintiff is unable to return to any form of work -whether damages for future loss of earnings should be awarded on the basis of a retirement age greater than 65 years - determination of the plaintiff's likely retirement age - assessment of plaintiff's future needs - determinations made in accordance with the provisions of the Workers Compensation Act having regard to Sch 3 Part 18
Legislation Cited: Civil Liability Act 2002
Motor Accidents Act 1988
Workers Compensation Act 1987
Cases Cited: Arthur v Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649
Berkeley Challenge Pty Limited v Howarth [2013] NSWCA 370
Bridge Printery Pty Ltd v Jose Mestre [1999] NSWCA 342
De Beer v The State of New South Wales [2009] NSWSC 364
Dell v Dalton (1991) 23 NSWLR 528
Dykstra v Head (1989) Aust Torts Rep 80-280
Fox v Wood (1981) 148 CLR 438
Franklins Limited v Burns [2005] NSWCA 54
Gordon v Truong [2014] NSWCA 97
Government Insurance Office v Lazar [1991] NSWCA 123
Jandson Pty Ltd v Welsh [2008] NSWCA 317
Jones v Dunkel (1959) 101 CLR 298
Knight v Anderson (1997) 26 MVR 105
Mead v Kerney [2012] NSWCA 215
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Morgan v Costello [2004] WASCA 260
Najdovski v Crnojlovic [2008] NSWCA 175; 72 NSWLR 728
Nominal Defendant v Livaja [2011] NSWCA 121
Rabay v Bristow [2005] NSWCA 199
Seltsam Pty Ltd v Ghaleb
Southgate v Waterford (1990) 21 NSWLR 427
Strike v Fiji Resorts Limited [2012] NSWSC 1271
Thatcher v Charles (1961) 104 CLR 57
Woolworths Limited v Lawlor [2004] NSWCA 209
Category: Principal judgment
Parties: Ian Barry Campton (Plaintiff)
Centennial Newstan Pty Limited (Defendant)
Representation: Counsel:
B Dooley SC; P O'Rourke (Plaintiff)
M Joseph SC; D Stanton (Defendant)
Solicitors:
Whitelaw McDonald (Plaintiff)
Sparke Helmore (Defendant)

File Number(s): 2012/70316

Judgment

PART A - INTRODUCTION

The plaintiff, Ian Barry Campton, by Amended Statement of Claim filed 7 March 2012, sues the defendant, Centennial Newstan Pty Ltd, his former employer, in respect of an accident that occurred in the course of his employment at the defendant's colliery at Awaba on 1 July 2010. At the time of the accident he was employed as a Mine Deputy.

The defendant relied upon its Further Amended Defence filed on 9 August 2013. In that Defence, the defendant disputed primary negligence and raised a defence of contributory negligence. The hearing of the proceedings commenced on 24 February 2014 on all issues. All grounds of defence relied upon by the defendant were abandoned after lunch on the sixth day of the hearing.

The accident in question occurred when the plaintiff was a passenger in a vehicle used in underground mining, an underground transporter referred to as a PJB vehicle, driven by a fellow employee, Mr Fletcher. The vehicle, on the plaintiff's case, was travelling along a transport road within the mine when the vehicle struck a hole causing the plaintiff to bounce heavily in the vehicle.

The plaintiff's case was that the vehicle was driven at an excessive speed along a pot-holed roadway within the mine, causing injury to his lumbar spine (at the L4/5 level) for which the plaintiff subsequently underwent surgery. The plaintiff claimed that as a result of the injury and associated disability, he is, and has been since the accident, totally incapacitated for work.

The proceedings were heard over nine days. The first four days were heard in East Maitland. The subsequent five days were heard in Sydney. There was very extensive cross-examination of the plaintiff, his wife, medical and other witnesses. Although the proceedings developed into a damages hearing only, they were conducted by the defendant upon the basis that there existed real issues as to the plaintiff's credibility, his pre-accident medical history and pre-existing degenerative changes in his lumbar spine and their potential for limiting his working life.

The issues that arise for consideration include:

(1) The nature and extent of the plaintiff's injury, disability and incapacity.

(2) Causation of the plaintiff's disability and incapacity, in particular, whether any previous injuries suffered by the plaintiff and/or any pre-existing degenerative changes, contributed to the same.

(3) Whether the plaintiff is totally or partially incapacitated as a result of the accident.

(4) The quantum of damages, in respect of the particular heads of claim, including past and future economic loss.

Plaintiff's Background

The plaintiff was born on 14 May 1951.

He attended school to year 10 and completed his School Certificate.

He obtained a position as a deckhand on a fishing trawler for approximately three months. Subsequent to this he worked as a motorbike assembler for approximately three months.

The plaintiff then entered employment as an apprentice bricklayer with Sulphide Works at Newcastle for five years, following which he worked as a self-employed bricklayer for approximately eight years.

In about 1980 he commenced working for the Centennial Mines Group at various locations, namely:

Wallarah (1980-1982; 1994-2000)
Mooney Colliery (1982-1994)
Southlands Colliery (2000-2004)
Newstan (2004-2006)
Mandalong Mines, and thereafter, Awaba (2006-date of accident)

In these positions the plaintiff usually worked between 44 to 60 hours per week, including shift work and overtime.

In 1995 he became a Mine Deputy, having completed a TAFE course. He remained as such until the date of the subject accident.

The plaintiff described the role of a Mine Deputy as involving the supervising of underground crew as well as engaging in the work of an underground miner, which work involves a significant amount of physical activity, in particular walking for extended periods of time on uneven ground, and some heavy lifting: Plaintiff's Evidentiary Statement, 5 July 2012, at [13].

He is married and has two adult sons.

His wife, Narelle Campton, worked as a casual school teacher until approximately June 2012.

PART B - PRE-ACCIDENT MEDICAL HISTORY

The plaintiff's pre-accident medical history was examined at length during cross-examination, as part of the defendant's pursuit of issues concerning causation and damage, and the question of his likely retirement age. The relevance or otherwise of the plaintiff's prior medical and other history on these matters will be considered later in the judgment.

He had consulted Dr Whittaker in respect of various medical matters over a number of years before the accident. Dr Whittaker, as his qualifications indicate, is a highly qualified medical practitioner in general practice. Having read his reports and observed him over several hours in cross-examination, I was impressed with him in every relevant respect including, in particular, his attention to detail and his evident capacity as a diagnostician and as a treating doctor. His initial diagnosis of the plaintiff's injury, namely a discogenic lesion at L4/5 with nerve root effacement, was entirely in accord with the subsequent opinion of the treating neurosurgeon, Dr Ferch. In summary Dr Whittaker was an impressive witness.

(i) Medical Attendances Pre-2006

The plaintiff gave evidence of having had various back sprains and twisting incidents described in his evidence as "niggles". However, he said that these had never caused him to take time off work: T 60; T 80.

In 1982, when he was 21 years of age, he broke his leg and "the muscle never grew back properly": T 94. However, apart from a period off work due to the injury, this did not prevent him working up to the date of the accident on 1 July 2010.

In 1986 when the plaintiff worked at Mooney Colliery he suffered a back strain, although he could not recall the incident or episode in cross-examination: T 81.

In 1993 he attended physiotherapy having experienced lumbo-sacral pain and groin pain. Again, the plaintiff could not recall this incident or episode raised in cross-examination: T 81.

He also suffered a back strain when he was working at Wallarah Colliery in 1994, although, again, the plaintiff said in cross-examination that he was unable recall that fact having occurred: T 81.

In 2000 the plaintiff's knee swelled up after having given way. Again, he said in cross-examination that he was unable to recall the incident or episode associated with that condition: T 96.

(ii) Medical Attendances in 2006

In 2006 the plaintiff underwent an x-ray (but to what part of his back is unknown). In this regard he stated "I don't know what it was for but I do remember having an x-ray in 2006": T 82.

(iii) Medical Attendances in 2007

On 18 April 2007, the plaintiff attended Dr Whittaker after hitting his right elbow and knee, and twisting his lower back and the left side of his neck as he was getting into a cart at work. Dr Whittaker noted tenderness and swelling in the right knee, and advised him to not return to work for three days: Exhibit 42 (Defendant's Court Book, vol 1) at p 5.

The plaintiff experienced back pain for "a short time" following this incident. The plaintiff attended Dr Millons in respect of this: T 82-85. This accident also resulted in a right ankle injury. The plaintiff continued to have ongoing pain in his right ankle for a year and wore ankle supports: T 91-92. He also stopped playing golf for a couple of months. As a result of this, the plaintiff was on selected duties at work for "a short time": T 93.

By 23 April 2007, he had returned to work on full duties, but was not lifting: Exhibit 42 at p 6.

In May 2007, the plaintiff continued to experience pain in his back and knee, and had been limping: Exhibit 42 at p 6.

On 22 May 2007, Dr Whittaker noted that the plaintiff's right ankle had flared up since returning to normal walking. He referred him for an x-ray for his right ankle. Dr Whittaker also stated that he "has back pain which is affecting his gait - right lower side back": Exhibit 42 at p 6.

The right ankle x-ray revealed that the plaintiff has a healed fracture of distal tibula and fibula, although discussion with the plaintiff revealed the plaintiff had "no history of fracture known": Exhibit 42 at p 7.

On 25 May 2007, the plaintiff again attended Dr Whittaker. Dr Whittaker observed that the pain in the right knee and back had improved, "but right ankle has worsened": Exhibit 42 at p 7. It was also noted that the plaintiff had an old fracture in the upper tibia.

Dr Whittaker arranged for the plaintiff to have a right ankle CT scan in respect of the injury on 20 April 2007. The scan showed "equivocal small undisplaced fracture anterior tibia": Exhibit 42 at p 7. Dr Whittaker subsequently referred the plaintiff to a Dr Young.

It was noted on 14 June 2007 that the plaintiff continued to have right anterior ankle pain. He reported that on 24 May 2007 a colleague who had been carrying a 60kg ladder dropped it onto his ankle when he was getting onto a work platform. This caused him severe initial pain before settling back to his previous level of pain: Exhibit 42 at p 8.

A follow up examination on 19 June 2007 led to Dr Young reporting that it would take 3-4 months for the plaintiff's ankle injury to resolve. The plaintiff was off work for one week, before going on light duties the following week. He was required to wear an air-cast until his ankle became more stable.

It was noted that on 10 July 2007 the plaintiff at times was having problems at work, and would need suitable duties on the surface as he was unable to continue with deputy work in the short term: Exhibit 42 at p 9.

On 9 August 2007, Dr Whittaker wrote that the plaintiff's ankle had improved greatly with surface and light duties, although he was not yet ready for pre-injury duties. On 14 August 2007, Dr Whittaker recommended that he remain on suitable duties for a further month: Exhibit 42 at p 9.

The plaintiff returned to full duties on 4 September 2007: Exhibit 42 at p 10.

In December 2007 the plaintiff had a further injury at work after he slipped on a roller submerged under water when he was walking out of a pit coal mine. The plaintiff's right ankle slid and forced an inversion of the ankle, which caused the ankle to re-sprain. There was also a painful medial aspect of the left knee: Exhibit 42 at p 11.

(iv) Medical Attendances in 2008

The plaintiff was able to continue performing his usual duties, although it was recorded on 8 January 2008 that the left knee continued to have a small amount of medial discomfort and was "painful to walk, no locking, no collapsing": Exhibit 42 at p 12. Dr Whittaker's diagnosis was a mild sprain to the medial crucial ligament.

The plaintiff's left knee was reviewed on 24 June 2008. Dr Whittaker recorded that it had "never fully resolved", and has been "slowly worsening rather than improving". It was also noted that the plaintiff had slipped the previous night on a shiny slippery floor and twisted his knee: Exhibit 42 at p 13. Dr Whittaker diagnosed the plaintiff as having a mild meniscal tear.

In June 2008 the plaintiff had a further injury at work. The plaintiff's left foot slipped when he was getting off an "Eimco cove". The plaintiff's right ankle had allegedly given way and he hyper-loaded his left knee. At the time of this injury the plaintiff was also wearing Spats on his legs which caused a loss of sensation: T 232-235. The plaintiff was subsequently treated and operated on by Dr Berton. He was off work for up to two months: T 92-94. In cross-examination the plaintiff said "I had the operation and then my left knee come good": T 95. The plaintiff said that by October 2009 he wasn't having any problems with his knee: "...I was walking on it, I was working, I was doing everything...": T 97.

In August 2008 the plaintiff experienced numbness and loss of sensation from his left calf muscle down to his left foot as a result of wearing Spats. This occurred on the plaintiff's first day back at work from his last injury. He said in cross-examination that "I took them [Spats] off and it went away": T 238.

The plaintiff was booked in for an arthroscopy on 6 August 2008. This revealed that he had a tear of the posterior bundle of the anterior crucial ligament, and a 50% chance of progression to instability in 1-2 years: Exhibit 42 at p 15.

On 19 August 2008, the plaintiff attended both Dr Berton and Dr Whittaker. Dr Whittaker observed that the left knee was continuing to give way. The plaintiff was then off work for one week: Exhibit 42 at p 15.

On 28 August 2008 the plaintiff attended another doctor at Jewells Medical Centre. There Dr Tzaros, noted that his left knee remained unstable, and that he was on above ground restricted duties: Exhibit 42 at p 15.

On 3 September 2008 Dr Tzaros found his left knee stability had greatly improved, and that he could return to underground duties, albeit with a 15kg lifting restriction: Exhibit 42 at p 16.

On 10 December 2008 the plaintiff saw Dr Whittaker, who noted that the plaintiff's meniscus repair was going well, and that his activities were "not affected too much at this stage", other than walking down stairs. Dr Whittaker also noted the plaintiff "has reached a plateau - ankle stability will not improve from this stage except by surgery, but may not be better off". The plaintiff additionally requested clearance to go back to normal duties: Exhibit 42 at p 17.

(v) Medical Attendances in 2009

Dr Whittaker saw the plaintiff on 10 March 2009. He noted that he was experiencing problems with numbness down left leg medial aspect, medial aspect of foot, and burning sensation of forefoot and toes. Dr Whittaker noted this was permanent, although initially intermittent. On examination, it was observed that the left leg reflexes were normal, however there was reduced vibration sense and light touch in left L4 region and base of forefoot: Exhibit 42 at p 18. The plaintiff was referred to Dr Katekar. It was noted that the plaintiff was wearing tight gaiters around that region of the left leg, although he would try not to wear them for a while and to see if it improved: Exhibit 42 at p 18. The plaintiff could not recall this in cross-examination: T 238-239.

On 18 June 2009 Dr Whittaker recorded that the plaintiff had been performing pre-injury duties for six months with "no problems": Exhibit 42 at p 19.

PART C - THE ACCIDENT

The plaintiff was injured on 1 July 2010 while working at Awaba Colliery.

Before commencing work the Under Manager, Mr Phillips, conducted a pre-shift briefing.

In the plaintiff's first evidentiary statement, dated 5 July 2012, he gave the following account:

"22. At that time I was working in Awaba Colliery.

23. Before commencing that shift the Under Manager, Dave Phillips, presented at pre-shift briefing. All those persons on the shift including myself were present at that briefing. There were some 22 people there, it included Mr Dave Fletcher.

24. At that shift briefing Mr Phillips advised us that there was a change in the road system. He said words to the effect of:

'We won't be entering the normal transport road, we've set up a bypass road to be used and the road is extremely rough so you have to be careful when you are travelling along that road.'

25. He also advised that there had been no maintenance carried out on the road for quite some period of time, when he was advising that it was very rough.

26. The ordinary travelling road was in the process of having its rails removed and accordingly it was necessary to use the bypass road. Ordinarily I drive myself underground but on this occasion I had to go down with the crew to the diesel bay to pick up my own machine which was Eimco 31.

27. Accordingly I had to go down in a PJB No 4 with the rest of my work crew. The driver of that PJB was Mr Dave Fletcher. I was the last one to get in and I was at the back over the left hand rear wheel. When I got in there I had to lean to the left because of the height of the roof of the PJB and when I had my helmet on I couldn't fit under so I had to lean to the left. There was no safety belts available for use. The seat that I was sitting on was made of steel which had on it a 1" or 2.5cm piece of foam which was old and in poor repair and provided virtually no cushioning.

28. Mr Fletcher then drove the PJB down the drift. The roadway of the drift was in good condition; it was concrete. Mr Fletcher drove this section of what I estimate would be the top speed of the PJB; whilst it is difficult to assess the speed because of the darkness, there was enough light. I have driven in PJBs for the whole time that I have worked in the mine and I am aware of how fast they can go. From my experience I believe the PJB was driven as fast as it could which is a speed of approximately 40 km/h.

29. The speed which I would normally drive down the drift would be 15 to 20 km/h when the drift is in as good condition as this one was.

30. As he was going down the drift the speed was such that myself and at least two other people in the transport yelled out to him to slow down. He did not react to any of these requests. Whilst it is noisy and though he had earmuffs on, my experience when you yell as loud as I and the others did, you can hear the yelling. I had earplugs in and could distinctly hear the yelling. I have driven in similar conditions and been able to hear people yell at me.

31. When we got to the bottom of the drift, this is where the usual travelling road is which is the main transport road in the mine; however, at the bottom of the drift where it met with the travelling road. Along the travelling road there are ordinarily rails similar to the railway line. They had been moved so the roadway had been barricaded off requiring us to use the alternate or bypass road.

32. As we came to the end of the drift, the vehicle slowed but only to approximately 15 to 20 km/h and then went straight into the bypass road. The vehicle did not stop.

33. When it became obvious that he was not going to stop and attempt to take the corner at whata I viewed as very high speed in the circumstances, I yelled out at him just prior to him entering the bypass road to slow down. This appeared to have no effect on him and he entered the bypass road and shortly thereafter had struck a large hole in the ground or some other object and was thrown about and jarred quite violently. I hit my head into the roof and I felt a pain in my low back.

34. He continued on driving and when he reached a boggy section shortly thereafter he accelerated.

35. PJBs are able to be operated in four-wheel drive mode but only when they are in first gear. It cannot be operated in four-wheel drive mode in second or third gear (there are only three gears on PJBs).

36. As we entered the bypass road not only was it very rough, it was also very boggy. As soon as we entered the area Mr Fletcher then accelerated the vehicle. I could tell this from not only the increase in speed but also from the revs of the engine. We were in second or third gear as the speed that he was doing was far too great for the speed the vehicle is able to obtain in first gear.

37. He kept on accelerating through the water and the mud and got faster and faster in an apparent effort to avoid being bogged. This led to the vehicle bouncing from side to side and up and down.

38. I and the other miners continued to be bounced around until we reached the diesel bay.

39. Travelling on the alternate road, I noticed that the road was extremely rough indeed. It is not uncommon for bypass or alternate roads to be in a worse state of repair than the main travelling road. However, the condition of this roadway was as bad as any I have ever seen in my whole time in the mines. As soon as we entered the roadway there were quite large potholes and commenced bouncing around. The condition of the roadway remained poor for the entire journey.

40. Even after we left the bypass road and returned to the travelling road, this was extremely rough as well. The rails had been removed from that area and there had been no grading or other work that I could observe to bring it back to the condition one normally expects of a travelling road in the mine.

41. When we go to the diesel bay the pain in my back had worsen[ed] and it was quite severe.

42. I immediately got out and called the Under Manager on the phone and said to him, 'we've come down the pit extremely quickly and I've hurt my back'. The Under Manager, Dave Phillips, said to me, 'were there any witnesses?', and I advised him of the names of the other people in the transport and he said to me, 'I will look into it'.

43. Mr Fletcher, after he had dropped me at the diesel bay, took my crew to the crib room. Having dropped them, he then returned to the diesel bay and he came over to me and he said to me in abrupt manner, 'what's wrong with you, you big sook?' (from the manner and tone of his voice, I formed the view that he had been spoken to about my complaint about his driving), to which I replied, 'I've hurt my back'. Then I said to him, 'why did you drive so fast and keep accelerating?', to which he said, 'if I didn't do that, I would've got bogged', then I said to him, 'why didn't you put it into four-wheel drive and drive at a speed for the road conditions?', he repeated, 'I would of got bogged'. Thereafter he said, 'did I want a lift out?', and I advised him that I would finish the shift.

...

46. The bypass roads had had no maintenance or grading work carried out on it. I have regularly seen maintenance and grading work carried out on the roadway, and indeed carried out that work regularly myself. The condition of the bypass roadway led me to form an opinion that it was appalling. There were no warning signs of any type where you entered the bypass road warning of the condition of the roadway or provided any signage's as to the speed which is appropriate."

In evidence during the hearing the plaintiff described himself as suffering a significant jarring of the back.

Exhibit 1 is a copy of the plaintiff's claim form dated 16 July 2010 lodged with Coal Mines Insurance Pty Limited. It recorded an accident involving the plaintiff on 1 July 2010 at 11:30pm at "Mainsouth". The form noted that the shift commenced at 11:15pm and the time of the reporting of the accident at 11:30pm.

It recorded the affected part injured was to the lower back.

Exhibit "C" is an "Accident/Incident Investigation Form" completed by Mr Phillips on 2 July 2010. In relation to "Details of Accident/Incident (including names of witnesses)":

"I Campton was a passenger in the rear of a PJB along with B Chapman, C Douglas, D Winbank and R Howell, being driven by D Fletcher (Deputy). The PJB had just travelled down the drift and turned into a detour on the travel Rd when it hit a hole jarring Mr Campton's back."

Exhibit "C" also recorded the following under the heading "Immediate Action Taken by Team Leader/Supervisor".

Interviewed Mr Campton and inspected road.
Interviewed witnesses.
Interviewed and cautioned Mr Fletcher.

Attached to the Accident/Incident Investigation Form dated 2 July 2010 is a handwritten statement signed by Mr Phillips in the following terms:

"When Mr Campton reported the incident to me he also indicated that the PJB was travelling too fast for the conditions and that Mr Fletcher had been told on two occasions previously to slow down. On interviewing each witness separately they all gave the same story of events as Mr Campton.

The whole shift had 10 mins previously been told and warned of the detour and told to drive carefully and safely. Mr Fletcher was warned that his actions were unacceptable, and that any future complaints or incidents involving his driving would lead to the immediate suspension of his PJB/SMV permit, as well as disciplinary action."

Exhibit "D" is a document entitled "Record of Interview" in relation to Mr Fletcher.

The document records the "Disciplinary Interview" was conducted by Mr Trevor Hines, Production Manager. It is in the following terms:

"Dave has been given a written warning for driving too fast in a PJB after being asked by passengers on two occasions to slow down. One passenger now has a jarred back."

The plaintiff was extensively, and at times vigorously, cross-examined on the circumstances of the accident. He was challenged as to his "conduct" in the vehicle (notwithstanding that he and others were passengers in it whilst being drive by Mr Fletcher), his assessment of the driving or road conditions, and the nature of the warnings given at the pre-shift briefing. As the cross-examination proceeded it became evident that the plaintiff was an honest and reliable witness as to all events concerning the accident.

I do not propose to canvass the cross-examination on all aspects in great detail, in circumstances in which the defendant made a belated admission of breach of duty and withdrew its defence of what was a baseless defence of contributory negligence on the sixth day of the hearing.

It is, however, noted that the defendant's contemporaneous investigations: (a) corroborated the plaintiff's account of the incident; (b) established that the reason for it was the excessive speed at which the PJB was driven by Mr Fletcher in existing poor road conditions, and (c) that the defendant, by its supervisors, had previously issued a warning to Mr Fletcher about his driving.

It is clear that there was never any proper factual material available to the defendant to either dispute the plaintiff's claim in negligence or allege contributory negligence against him. The plaintiff was, as I have noted, a passenger who was in no position to exercise control over the negligent driver or avoid the risk the driver alone created.

PART D - THE HEARING

The plaintiff was cross-examined for approximately 11 hours and 45 minutes over 4 days.

The cross-examination commenced in Maitland on Monday 24 February 2014 at T 58 and concluded on Wednesday 26 February 2014 at T 400. It continued in Sydney on 18 March 2014 from T 654-658.

Broadly speaking, the issues canvassed in the plaintiff's cross-examination can be categorised as follows:

(1) Plaintiff's credibility

(2) Circumstances of the accident and contributory negligence of the plaintiff

(3) Pre-accident injuries and treatment

(4) Post-accident injuries and treatment

(5) Attempts to return to work

(6) Work capacity

(7) Recreational activities

(8) Shopping activities

(9) Domestic tasks and assistance

(10) Surveillance material

(11) Family circumstances

The defendant, as I have noted, contested the plaintiff's claim upon the basis that it had no liability to him on the basis pleaded in negligence. Following its admission of liability, the defendant continued vigorously to challenge the claim, now limited to damages, but the defendant did so in circumstances where the medical evidence uniformly established:

(1) That the plaintiff sustained serious injury in the subject accident to his lumbar spine.

(2) That he was thereafter disabled and incapacitated by reason of his spinal injury.

(3) That, by reason of his injury and continuing disabilities, he underwent surgery for his injured back on two occasions.

(4) That surgery failed to materially reduce his physical disabilities.

(5) That by reason of his injury/disability, the plaintiff was, and is, permanently incapacitated for his pre-injury work as a Mine Deputy.

The lengthy damages hearing took place notwithstanding that the expert medical opinion of the plaintiff's treating and qualified medical practitioners (as well as that of the consultant neurosurgeon engaged by the defendant, Dr John Grant) all established:

(1) The plaintiff sustained injury in the accident in the nature of a prolapse of his L4/5 disc, ultimately the basis for surgical fusion of the L4/5-S1.

(2) The plaintiff was effectively totally incapacitated for work.

That being the case, and there having been no evidence adduced by the defendant of the plaintiff having engaged in any activities inconsistent with the findings made by the abovementioned medical practitioners as to his permanent lumbar disability and incapacity, such a protracted hearing on damages was exceptional and, in my assessment, arose from the defendant's pursuit of issues that could not and did not alter the medical assessments made by the medical practitioners called in the plaintiff's case.

PART E - POST-ACCIDENT TREATMENT - DR WHITTAKER

On 2 July 2010 the plaintiff attended Dr Reichler, GP. Thereafter he continued to see his general practitioner, Dr Whittaker, on and from 16 July 2010. On 23 July 2010, Dr Whittaker discussed results of an MRI with him and he was then referred to Dr Ferch, Neurosurgeon.

Dr Whittaker in a report written to Dr Michael Edger dated 6 August 2010 had stated that the plaintiff's accident caused "a severe compression through his lower back ...". He noted he had continued on at work though in severe pain, having earlier seen Dr Heidi Reichler on Friday, 2 July 2010.

Dr Whittaker's report dated 20 December 2011, contained the following description of the plaintiff's accident:

"... He first consulted Dr Heidi Reichler at this surgery on Friday July 2nd, 2010. He gave a history that whilst working the preceding night, sitting as a passenger on an underground transporter, the machine went over a large bump, jarring his back at the time. Due to his helmet, his head was already against the roof, and he was sitting in a posture with his back leaning to the left. The force of the bump was sufficient to cause immediate lower back pain. Mr Campton was able to continue working for the remainder of that shift, taking nurofen (an anti-inflammatory), and avoiding any heavy lifting. When he saw Dr Reichler, the notes record that he reported lower back pain which was worse with movement, particularly from standing to sitting. The pain radiated around his right hip to the right groin area. He did not have neurological symptoms." (Exhibit A, p 5)

The plaintiff, on the history given, continued at work for the remainder of the shift.

In respect of the plaintiff's attendance on Dr Whittaker on 16 July 2010, Dr Whittaker recorded:

"I saw Mr Campton on Friday July 16th 2010, at which time his history was reviewed, confirmed to be in accordance with the above history, and his progress was reviewed. Mr Campton reported that his low back pain had eased slightly, but worsened when he attempted to lift anything. The pain continued to be referred to the right side groin region. He reported no change in pain with taking meloxicam (an anti-inflammatory), and had some improvement taking panadeine forte. On examination he had an obviously antalgic gait (ie, modified by pain). On inspection there was lumbosacral scoliosis with muscual spasm. Lower limb power and reflexes (both ankle and knees) were normal, though there was sensory loss present down the posterior aspect of the left leg. Tenderness was present in the midline and to the right side of the lumbosacral spine. I recommended he could continue to work on restricted duties, but required an MRI scan of the lower back, and was referred to a physiotherapist for treatment.

The findings on examination are detailed above. They are consistent with a diagnosis of lumbosacral spine injury with likely disc prolapse causing neural impingement. In my opinion, the findings are entirely consistent with the history of injury as given by Mr Campton." (Exhibit A, p 5)

As earlier noted, Dr Whittaker referred the plaintiff to Dr Richard Ferch, neurological/spinal surgeon. The plaintiff initially saw him on 5 August 2010. Dr Ferch recommended treatment options including surgery by means of microdiscectomy to relieve neural compression at L5 level.

He was subsequently referred by Dr Whittaker to Dr Michael Edger, neurosurgeon, to whom reference has been made (at [73]) for a second opinion. Dr Edger also observed that there were signs of a disc prolapse and considered that surgery would probably benefit Mr Campton's condition.

As discussed below, Dr Ferch operated on the plaintiff on 13 September 2010.

The plaintiff then attended the Hunter Pain Clinic and received treatment from Dr Simon Tame.

In a report dated 14 December 2010, Dr Tame considered the plaintiff to be:

"...suffering from chronic low back pain following a workplace injury. There may well be a significant component of a treatable simple cause such as interspinous bursitis or facet joint pain which we should try to identify as it is easily managed. In addition to that Ian has had a severe reaction psychologically to his pain problem which is not surprising given that he is devastated not to be working." (Exhibit A, p 75)

Mr Campton received psychological treatment from Innervate Pain Management, on referral from Dr Tame. In a report dated 19 January 2011, Sarah Campbell, psychologist, noted Mr Campton's history of persistent leg, groin and back pain following the accident, and that his pain was impacting on his sleep, socialisation, and participating in leisure activities: Exhibit A, p 79.

In April 2011, a further MRI was undertaken and the plaintiff was then reviewed by Dr Ferch. Dr Ferch considered that there was likely to have been a degree of L4/5 instability causing facet joint changes. Dr Ferch discussed further surgical management with Mr Campton. It was decided not to pursue further surgery at that stage.

The plaintiff then received physiotherapy and underwent six sessions of psychological pain management therapy.

In a report on MRI examination undertaken on 20 July 2011 it was noted that there was a "broadbased annular disc bulge" in combination with changes in the posterior elements at the L4/L5.

The plaintiff was issued with WorkCover Medical Certificates for restricted duties.

Dr Whittaker stated in his report of 20 December 2011 that he considered that the plaintiff had sustained "an acute L4/5 disc prolapse with neural impingement affecting the left L5 nerve root" as a result of the subject accident. He noted that he also sustained multi-level disc injury with disc bulging at L2/3 and L5/S1 levels and an annular fissure of L1/2. The direct effect of these injuries, he stated, caused left sided leg pain, neurological dysfunction and lower back pain.

He noted that the plaintiff had been "unable to return to any form of employment". He also stated that Mr Campton was unable to work in any capacity for which he was reasonably qualified by experience or training.

Dr Whittaker stated that the plaintiff's work restrictions would be permanent. The restrictions included restrictions on weight lifting, sitting and standing endurance, time spent travelling in vehicles and walking distances.

Dr Whittaker expressed the view that his condition was unlikely to improve to a significant degree in the future. In his opinion, the plaintiff had reached the maximum medical improvement that could be reasonably expected from his injury.

Additionally, he noted that Mr Campton was experiencing depressive symptoms and that his fear of further aggravation of his symptoms impaired his ability to function in his daily life.

Dr Whittaker wrote a further report dated 12 August 2013. In it he stated that since his previous report (20 December 2011) that plaintiff had:

Experienced progressive decline in function and persistent left lower limb radiculopathy.
Experienced persistent left leg numbness, left foot weakness of dorsiflexion, and lower back pain.
Developed upper abdominal pain as a consequence of gastritis, which is related to the plaintiff's medication.
Received further physiotherapy.
Consulted with Dr Ferch on 28 June 2012, who recommended further surgery. This surgery occurred on 8 April 2013 and involved revision surgery with interbody distraction at L4/5 and L5/S1.
Consulted Sarah Campbell, clinical psychologist, for psychological assistance with managing chronic persistent pain and the associated negative effects on his mood.

Dr Whittaker noted that the plaintiff's symptoms of bilateral anterlateral thigh loss of sensation were consistent with a diagnosis of meralgia paraesthetica, due to compression of the lateral femoral cutaneous nerves.

Dr Whittaker's opinion as to the permanent sequelae in respect of the injury included:

Loss of power of dorsiflexion of the left foot ("foot drop").
Loss of sensation in the left leg with a feeling of permanent numbness being present.
Loss of left ankle reflex.
Abnormal high-stepping gait due to the left foot drop.
Chronic pain syndrome involving the lower back.

Particular sequelae, as at the date of the report, which he considered may or may not persist permanently were:

Bilateral anterolateral thigh numbness that developed following the second spinal surgery.
Right hand numbness that also developed following the second surgery.

PART F - THE EVIDENCE OF TREATING NEUROSURGEON DR FERCH

As noted above, Dr Richard Ferch initially saw the plaintiff on 5 August 2010. He obtained a history of back pain from the date of the subject accident. He also noted that Mr Campton had a history of left leg pain and that he had been limited by ongoing pain radiating from his back into his left buttock down the posterior aspect of his thigh to his posterolateral calf. In addition, there was a history of his lateral toes and the dorsum of his foot having felt numb. He noted he had no ongoing right lower limb symptoms. Dr Ferch said in his view there was disc bulging present that was consistent with the plaintiff's left leg symptoms. Neurological examination, he noted, revealed mild weakness of dorsiflexion in his left great toe.

The plaintiff again attended Dr Ferch on 7 September 2010 and said he continued to be troubled by pain radiating to his left leg, which continued to feel numb and weak.

Dr Ferch was asked to give his opinion of the plaintiff in terms of complaints he had made and his presentation on examination. He stated:

"A. Yeah, I - yes, I've considered Ian to be considered in his decision making about his problem and he's listened to what I've had to say. When I offered surgery initially it did take him some time to think about it and go ahead with it, but I can understand wanting to think about it in view of the substantial nature of the surgery and only the modest change of improvement that I offered him." (T 513:45-50)

(i) The First Operation (13 September 2010)

The plaintiff was admitted on 13 September 2010 to Lake Macquarie Private Hospital where he underwent a left L4/5 microdiscectomy for L5 neurolysis. This was performed by Dr Ferch in order to decompress the L5 nerve root which he considered had been caused by the disc prolapse.

Following review on 26 October 2010, the plaintiff reported that he had experienced substantial improvement in his left lower limb symptoms. He remained troubled by aching across his back and found it difficult to lift. Dr Ferch noted that he had marked degenerative change throughout his lumbar spine and encouraged him to consider undergoing various forms of treatment (hydrotherapy, core strengthening exercise programme, and a physiotherapy based programme).

The plaintiff then received pain management care at Hunter Pain Clinic (Dr Simon Tame), the Innervate (psychology) Pain Management Program and had diagnostic injections of the lumbar spine because of continuing low back pain: Exhibit A, p 7.

On 29 March 2011, Dr Ferch noted that the plaintiff continued to experience discomfort with his back. He also noted his account of having experienced persistent numbness into his left foot. The pain radiating down his legs had improved following surgery.

On 28 April 2011, Dr Ferch observed that another MRI study confirmed high signals at the L4/5 level which to him were suggestive of a degree of instability. He noted that Mr Campton's left lower limb pain was intermittent and that numbness in his left foot was particularly triggered by rotational activities.

Dr Ferch observed on 20 March 2012 that the plaintiff continued to struggle with numbness in his left lower limb and that that had progressed. He also noted that he had also developed increasing weakness in his left foot and that there was a marked restriction in his movement. Neurological examination revealed marked weakness of dorsiflexion in his left ankle and great toe.

Dr Ferch saw him again some three weeks later on 5 April 2012 following the performance of nerve conduction studies, an MRI scan and x-rays. The results confirmed a deteriorating condition in the same area of the lumbar spine (the L4/5 level). Dr Ferch in his report dated 5 April 2012 observed:

"... These studies show progressive collapse on the left at the L4-5 level with foraminal stenosis and scoliosis ..."

The report supports the conclusion that the surgery performed on 13 September 2010, which had been intended to give relief from radiculopathy, had been unsuccessful in doing so. In his report of 5 April 2012, Dr Ferch again addressed the radiculopathy problem:

"... Ian's nerve conduction studies are consistent with an L5 radiculopathy and show no abnormalities with the peroneal nerve. There is evidence for a peripheral neuropathy." (Exhibit A, p 38)

Dr Ferch predicted that the plaintiff's condition would be ongoing, stating that in the absence of treatment "it is likely that his low back and left lower limb pain will persist". He also indicated the plaintiff's "weakness" may well deteriorate and that "revision surgery" was an option (that is, revision surgery with interbody distraction and revision neural decompression).

On 28 June 2012 Dr Ferch reviewed the plaintiff. He discussed conservative treatment as well as possible revision surgery. He stated that revision surgery with interbody distraction at L4/5 with L5/S1 carried the best chance of a sustained improvement in symptoms.

The reports and evidence of Dr Ferch established that, as at April 2012, (approximately 1 year 9 months after the accident), the plaintiff's low back pain and compression of the nerve root were related to a progressive collapse at the L4/5 level. His condition at that time was manifesting itself in three respects - a severe level of back pain, increasing left lower limb symptoms and associated left foot weakness. In his report of 5 July 2012, Dr Ferch therein stated that the progressive collapse of the L4/5 level:

"... was secondary to the disc rupture which had initially been treated with a microdiscectomy operation."

The recurrent compromise of the nerve had, he said, resulted from the progressive collapse.

The clinical picture that the plaintiff faced in relation to his low back, left lower limb and left foot weakness was evidence of the fact that his condition had deteriorated (after some initial improvement in some symptoms) since the surgery performed on 13 September 2010. In consequence, he was again presented with the possibility of further surgical intervention.

In his report dated 5 July 2012, Dr Ferch stated:

"Mr Campton underwent microdiscectomy surgery at the L4-5 level in 2010. This was performed to decompress the L5 nerve root which was caused by a disc prolapse compromising the nerve root. Mr Campton developed back and leg pain when he was travelling in a transporter over rough ground. He was jarred resulting in him bouncing heavily and triggering the onset of back and left leg pain. His symptoms did not improve with conservative treatment. Mr Campton experienced a substantial improvement following treatment but remained troubled particularly by back pain. This unfortunately progressed and he developed increasing left lower limb symptoms with foot weakness developing. Imaging confirmed progressive collapse of the L4-5 level. This collapse was secondary to the disc rupture which had initially been treated with a microdiscectomy operation. The progressive collapse resulted in recurrent compromise to the nerve. Treatment options were discussed and the surgical treatment offered included interbody distraction and fusion." (Exhibit A, p 40)

On 13 November 2012, Dr Ferch noted that the plaintiff's left lower limb symptoms had further deteriorated and that he had still not been able to return to work.

On 14 March 2013, Dr Ferch reviewed the plaintiff with recent x-rays and a follow-up MRI scan. Dr Ferch reported on a progressive deterioration at L4/5 with foraminal stenosis. He again discussed possible further surgery and associated risks with Mr Campton: Exhibit A, p 45.

(ii) The Second Operation (8 April 2013)

On 8 April 2013, Dr Ferch performed a revision L4-S1 decompression and interbody fusion.

Dr Ferch reviewed the plaintiff following the surgery on 21 May 2013. He reported that his lower limb symptoms had improved on what they had been before surgery. His foot weakness and numbness was "a little improved" on what it was, but he was still troubled with some weakness.

Dr Ferch also noted that the plaintiff experienced some numbness in his anterior thighs with the left being affected more than the right and that:

"... this is likely to be related to irritation to the lateral femoral cutaneous nerve from positioning. Ian also experiences some tingling in the tip of his index finger on the right which may also be related to positioning but does seem to be improving."

This numbness continued to persist up until at least 20 August 2013: Exhibit A, p 57.

On 20 August 2013, Dr Ferch also noted that the plaintiff was unable to dorsiflect his ankle and great toe. He considered that his deteriorating left foot weakness may have been related to the after effects of nerve root compression within his back, but that it was possible that there was some ongoing compromise either within his back or more peripherally.

Dr Ferch was cross-examined on 27 February 2014 in the East Maitland sittings of the Court: T 482-514.

He agreed in cross-examination that the plaintiff had pre-existing degenerative changes in his lumbar spine. These included a scoliosis convexed centred at the L2/3 level: T 486:45-50. He acknowledged the latter condition can become painful without trauma, that is, as part of the aging process: T 487:45-50. He added that he sees patients with a scoliotic deformity without pain, so that it was variable: T 488:1-6.

He referred to the scoliotic deformity as possibly involving the L2/3 level on the right, and observed:

"... but Mr Campton was not symptomatic on the right and I interpreted that as being an incidental finding as in it not actually causing him symptoms." (T 488:40-50)

Dr Ferch then referred to the prolapse of the L4/5 disc as diagnosed by him. He stated that it was possible that there had been some disc bulging at that level "prior to the trauma": T 489:30-35.

He stated at T 490:1-6:

"So what I interpreted as being the situation was the development of acute nerve root compression syndrome associated with the deformity and that acute syndrome representing nerve compromise and that was triggered by the event which he described to me of having his spine jarred. I did not believe specifically that the deformity had occurred as a direct consequence of that injury."

Dr Ferch gave evidence as to his understanding of the mechanics of the accident at T 491:35-40:

"Q. You thought [the vehicle struck a hole causing] him [to bounce] heavily on his back, right firstly? That's in the second paragraph?

A. Yes, so I said a vehicle struck a hole, causing him to bounce heavily on his back which precipitated back and left leg pain and then he had two more jars which further aggravated his symptoms."

He was asked at T 491:47-50:

"Q. Now a couple of things about that history Doctor, I take it you have assumed some degree of violence in this act or are you not just thinking something traumatic and nothing else?"

His answer was:

"A. Well I suppose I was trying to understand how this developed.

Q. Yes?

A. And I observed in that initial assessment that he had a significant neurological deficit with weakness in the foot and symptoms clearly attributable with the L5 nerve being irritated and that was how I summarised it. Whether it happened from a high energy impact or a relatively low energy impact, didn't make a difference as to how I would treat the patient or treat the symptoms.

Q. Right. And is it important that the pain in the leg came on at - immediately after the first - the occasion the vehicle struck the hole. In other words if there was a delay in left leg pain would that be of any significance to you as to causation?

A. It's to the acute development of nerve symptoms sometimes there is a delay and it can still be related to the nerve being acutely compromised at the level. We often see this with patients with a disc prolapse, say for example. That being said, if the delay is prolonged, then it is more difficult to relate it to a specific event. In essence-" (T 492:1-18)

Dr Ferch then added at T 492:24-32:

"A. I suppose in essence if it comes on fairly soon after it I attribute it to the event.

Q. And what about 24 hours?

A. Yes.

Q. Yes. Now--

A. Even weeks."

Dr Ferch accepted that the spondylolisthesis of a mild sort was more likely to have pre-existed the accident: T 493:25-30. He stated at T 493:30-T 494:21:

"Q. And does that create any particular risks itself, this is at page 173, any particular risks itself to back pain, that condition?

A. I think certainly the fact that there was a scoliosis and there was a degree of foraminal stenosis at L4/5 and the degenerative spondylolisthesis at L5/S1 meant that Mr Campton was vulnerable to recurrent nerve compression despite my limited decompressive procedure and that could occur due to progression of the deformity.

Q. Which could be natural process?

A. It could be a natural process but it could also have been exacerbated by a decompressive procedure and also progressive failure of the disc at the L4/5 level?

Q. And are you able or unable to indicate which of those three alternatives was likely in this case?

A. Well I attributed the onset of his symptoms to the event where his spine was jarred and therefore the development of the radiculopathy I attributed to that event and hence the decompressive procedure was aimed to treat that.

Q. Doctor can I just--

HIS HONOUR: Just a moment.

DOOLEY: He hasn't finished.

HIS HONOUR: Please.

Q. Yes, Doctor, continue?

A. And the revision surgery was an attempt to further help the nerve. The question whether he would have developed progressive deformity and spondylolisthesis and neural compromise in the absence of the initial event, I don't know but--

JOSEPH

Q. Doctor, can I take you to page--

HIS HONOUR

Q. Just a moment please?

A. I was simply going to say that I felt that the event which triggered it was the starting point to his developing symptoms."

In relation to the left lower limb, Dr Ferch stated that the plaintiff had been troubled by increasing leg symptoms in the presence of neural compromise and also other potentially compounding factors: T 495:5-10.

He stated that when he saw him on 20 March 2012, he continued to struggle with numbness in the left lower limb but that it had progressed and the plaintiff had developed weakness in the foot: T 495:40-45.

Dr Ferch said that the nerve conduction study performed by Dr Katekar was evidence of a peripheral neuropathy as a complication of diabetes: T 496. He also stated there was a likely contribution from L4/5 and S1: T 496:45-50.

Dr Ferch explained the mechanics related to the leg symptoms: T 497:3-11:

"Q. So if you've got damage to the nerve at the L5 4/5 or L5/S1 it can often affect the perineal nerve which can affect your capacity to use your foot?

A. So the weakness, because he had difficulty lifting his foot up, lifting the toes up and weakness in lifting the toes up can be caused by a nerve getting pinched in the spine, the nerve being affected somewhere along the course of it and it's generally vulnerable at the level of the knee or it can be due to a problem more peripherally with the muscles. The nerve contribution I suppose I was most interested in whether there was compromise at the knee and we were blaming changes in the spine when there was also a compromise at the knee, which the nerve test didn't show. It showed a spinal change in addition to a peripheral neuropathy."

In the course of his evidence on the cause of the plaintiff's problem with his foot, Dr Ferch was asked:

"Q. Doctor, if it was, if this problem with his foot was, came from the L5/S1, L4/L5 or L5/S1, then you would not have expected him to have been able to dorsiflex his left ankle?

A. So a complete loss of the nerve results in the ability to dorsiflex the ankle and an incomplete loss of the nerve can result in weakness, and I have always attributed the weakness in his foot to the L5 nerve problem." (T 499:25-30)

He stated at 499:39-44:

"Q. You say that he had a weak foot at the beginning, could that have been caused by any peripheral neuropathy, if it pre-existed the accident?

A. No I think that an unlikely explanation, there was no perineal nerve change and peripheral neuropathy from a diabetic source or other source is generally a burning numbness in the soles of the feet, rather than a weakness of ankle dorsiflexion."

(iii) Pre-Existing Degenerative Changes

Much attention was given in the cross-examination of Dr Ferch to the existence and nature of pre-existing degenerative changes in the plaintiff's lumbar spine. Such changes had been the subject of MRI and other radiological investigations. They established marked changes throughout the lumbar spine including a scoliosis convexed, centred at the L2/3 level with marked reactive changes: T 485-6.

In cross-examination it was put to Dr Ferch that such degenerative changes were capable of causing back pain in certain situations: T 487:15-20. Dr Ferch stated that with scolitic deformity some patients had minimal back pain whilst others have a lot. Such deformities, he observed, may also generate nerve compression causing pain as part of the aging process with or without trauma: T 487:45-50.

When asked whether the L1/2 level can be affected by the deformity at the L2/3 level, Dr Ferch agreed that at deformity the L2/3 level can affect the L3/4 and L5 levels "because you get secondary curves": T 488:20-25.

Dr Ferch was taken to radiological findings of an annular bulge at the L2/3 level. He agreed that could have been disc related to the scoliotic deformity at the L2/3 level: T 488:35-40.

Dr Ferch noted that the foramina can be opened by scoliotic deformity due to twisting of the spine. He noted that in the plaintiff's case the foramina were:

"... narrowed and at the L2/3 level on the right, that's the concavity of the curve and therefore it's narrowed, but Mr Campton was not symptomatic on the right and I interpreted that as being an incidental finding as in it not actually causing him symptoms." (T 488:40-50)

Dr Ferch confirmed there was no focal disc protrusion at the L3/4 but there was patent canal and foramina. He said that the level, however, was well preserved: T 489:15-20.

He agreed there was a broad based annular disc bulge at the L4/5 similar to that at the L2/3. He accepted that it was possible for there to have been some disc bulging at the L4/5 prior to the trauma: T 489:30-35.

When asked whether the event of July 2010 could be seen as an aggravation of a pre-existing condition, Dr Ferch stated that he did not believe that "the deformity" had occurred as a direct result of the injury but that it had caused an acute syndrome representing nerve compromise due to the accident: T 490:1-4.

Dr Ferch accepted the proposition put to him that the plaintiff's "radiological picture" would be vulnerable to developing neural symptoms adding "... they may or may not develop them and I suppose he developed them after this specific event ..." acknowledging that it could have happened "at another time with another event" and it was possible for nerve compression symptoms to occur without an event at all: T 490:8-25.

Dr Ferch stated in cross-examination that there had been substantial improvement in the plaintiff's leg problems following surgery but that he continued to experience back pain: T 485:29-31.

(iv) Post-Operative Care by Dr Whittaker

Following the further operation the plaintiff has remained under the care of Dr Whittaker who reported on his ongoing condition: Exhibit A, p 13.

Dr Whittaker stated that the plaintiff's ongoing condition includes:

"- Chronic persistent lower back pain, related to the disc prolapses sustained at the time of the injury. Subsequent surgery which was required to relieve the pressure on the spinal nerve roots led to instability and abnormality of posture. Mr Campton's condition was so impaired that he was advised to proceed to spinal fusion surgery. He continues to experience chronic pain in the region of the lumbar spine. He has required strong analgesic medications since the most recent surgery, which have now ceased. He was taking Ibuprofen and Meloxicam as pain relievers which led to the development of gastric inflammation.

- Chronic persistent loss of sensation and weakness in the left lower limb, due to compression of the nerve roots to the left leg sustained with the prolapse of L4/5 and L5/S1 spinal nerve roots. Mr Campton has a permanent loss of power affecting the dorsiflexion movement of the left foot, leading to 'foot drop'. There is loss of the left ankle reflex also indicating neural injury. This has persisted despite surgery to relieve the pressure on the L5 nerve root, indicating that the changes in nerve function are permanent.

- Impaired mobility due to abnormal gait and weakness of the left lower limb, which are due to the disc prolapses described above. Mr Campton's gait is altered by permanent left foot drop, and permanent alterations of spinal posture with abnormal tilting of the pelvis whilst walking.

- Psychological sequelae due to chronic pain and persistent disability, for which Mr Campton sought psychological therapy. These have included alterations of mood, irritability, withdrawal from activities and social withdrawal, and he at one time experienced suicidal ideation. These symptoms have been assisted by psychological therapy, with improvements in coping strategies with regard to his chronic pain syndrome and neurological injury to the left leg.

- Loss of occupational capacity. Mr Campton has been unable to return to work since his injury. He was employed as a Coal Mine Deputy at the time of his injury. He is unlikely in my opinion to be capable of any work in the future. Mr Campton has been assessed by Rehabilitation Consultants and has been provided with job seeking assistance by Coal Mine's Insurance since his injury, but no suitable work as been able to be identified." (Exhibit A, pp 14-15)

Dr Whittaker also observed:

"... His persistent condition is in my opinion due to permanent injury to the nerve roots that supply the left leg from the pressure placed on them by the disc prolapses. He has subsequently experienced the development of a chronic pain syndrome involving the lower back, along with permanent abnormalities of gait and posture due to the injury to the nerves to the left leg that were sustained.

Yes it is my further opinion that Mr Campton has been rendered permanently unable to work as an Underground Coalmining Deputy by the injuries that occurred on 1st July 2010. The inherent duties of his occupation required him to walk long distances over uneven rough ground on slopes in an underground coal mine. Despite extensive treatment including two surgical procedures, physical rehabilitation by physiotherapy and psychological rehabilitation, Mr Campton's capacity to perform the duties of his occupation has not been achieved, and in my opinion will never be achieved in the future." (Exhibit A, p 15)

Dr Whittaker stated that the plaintiff's condition:

"... will continue to be permanently incapacitated by his injury. He has sustained a permanent injury to the left sciatic nerve due to compression of the exiting nerve root at the time of the injury." (Exhibit A, p 15)

He identified the following "permanent sequelae" due to the injury:

"- Loss of power of dorsiflexion of the left foot ('foot drop').

- Loss of sensation in the left leg with a feeling of permanent numbness being present.

- Loss of the left ankle reflex.

- Abnormal high-stepping gait due to the left foot drop.

- Chronic pain syndrome involving the lower back."

Dr Whittaker concluded:

"In my opinion, Mr Campton's current diagnoses, current disabilities and restrictions are permanent. They have persisted despite extensive treatment over a period of time that now extends to over 3 years. In my opinion there is little prospect of any future improvement in his condition."

PART G - THE DEFENDANT'S MEDICAL EVIDENCE - DR HARVEY, ORTHOPAEDIC SURGEON

Dr Harvey, orthopaedic surgeon, was retained by the defendant to examine and report upon the injuries that the plaintiff alleges he suffered to his lumbar spine, and as to his capacity for work and the assessment of any permanent impairment of his lower back.

Dr Harvey examined the plaintiff on 30 October 2012 and 16 September 2013. Particulars of the reports of Dr Harvey admitted into evidence are as follows:

(i) Report 30 October 2012 (diagnosis, causation, work capacity, treatment, prognosis and additional comments) - Exhibit 25.

(ii) Report 30 October 2012 (permanent impairment assessment)

(iii) Report 26 November 2012 (in response to letter of Coal Mines Insurance 23 November 2012 commenting upon the report of Dr Ferch).

(iv) Report 16 September 2013 in respect of the examination carried out on that date.

(v) Report 16 September 2013 in respect of the plaintiff's letter concerning Dr Harvey's examination of him on 30 October 2012.

(vi) Report 20 September 2013 responding to seven matters raised in a letter from the defendant's solicitors to him dated 19 September 2013.

(vii) Report 14 October 2013 in respect of DVD "segments" including, in particular, a segment relating to 23 November 2012.

(viii) Report 18 October 2013 containing additional matters concerning a DVD of the plaintiff and "additional points" drawn to his attention in teleconference with Mr Joseph SC.

The plaintiff attended Dr Harvey on 30 October 2012.

Dr Harvey expressed the opinion on that date that the plaintiff had degenerative lumbar disc disease and that the trauma (of the accident) could have aggravated this degenerative condition and could have precipitated the onset of symptoms: Exhibit 25, p 7.

Ultimately, his opinion as to the nature of the underlying pathology which he considered was responsible for the plaintiff's symptoms was at odds with the opinions expressed by Drs Ferch, Edger, Grant, Hopcroft and Bracken.

In his first report of 30 October 2012, Dr Harvey stated, inter alia, that he considered the plaintiff had a degenerative lumbar disc disease which could have been aggravated in the subject accident: p 8.

He noted that the plaintiff had undergone spinal surgery and "... I consider that it is consistent that he could have persistent pain following this": p 8.

Dr Harvey expressed the opinion that the plaintiff "... would be fit for lighter work which did not involve heavy lifting or bending": p 8.

He stated that it was likely that his susceptibility to lower back pain would persist indefinitely: p 8.

Dr Harvey considered that Mr Campton's future management should be conservative and that the only indication for surgical intervention would be if there was some clear neurological deficit, but that he did not consider there was objective evidence of such deficit: p 9.

In his second report of 30 October 2012 Dr Harvey stated that the plaintiff had a 20% impairment of the lower back and stated that he believed this would have to be attributed to the injury on 1 July 2010.

In his report of 26 November 2012, Dr Harvey noted that Dr Ferch had recommended spinal fusion at both the L4/5 and L5/S1 levels. He stated he was unconvinced that the plaintiff had significant weakness in the left lower limb as claimed. He expressed the view that, at the plaintiff's age, he would see little likelihood of him returning to work after such an operation (fusion at one or two levels). This observation is relevant to the plaintiff's likelihood of returning to work following the second operation performed on 8 April 2013.

In his first report of 16 September 2013, Dr Harvey noted that the suggestion had been made that the plaintiff had peripheral neuropathy, but the sensory loss did not correspond, in his opinion, with peripheral neuropathy.

Based upon his examination of the plaintiff on that date, Dr Harvey expressed, in his conclusions (pp 5-7) reservations as to the plaintiff's complaints of sensory loss as detailed in that report. In particular, he expressed doubts as to the assessment or diagnosis that had been made by Dr Ferch to the effect that the plaintiff had a peripheral neuropathy. Dr Harvey's basis for his contrary opinion was that he did not consider that the sensory loss corresponded with that of a peripheral neuropathy where, he said, it tends to be more peripheral stocking-type sensory loss.

I note that Dr Harvey did not dispute that the plaintiff in fact had the level of back pain that he complained of following the further spinal surgery involving the interbody fusion extending from the L4 to the sacrum. In effect he noted that the complaints of continuing pain did not appear to have improved following the second operation: p 5.

Dr Harvey, at page 6 of the lastmentioned report, considered that the plaintiff:

"... has a greater physical impairment than when I last saw him. He has now had a spinal fusion between L4 and S1 and this is generally regarded as causing an alteration in spine mechanics and reducing the capacity of a person to engage in more strenuous activities."

I also note that Dr Harvey in his report of 16 September 2013 did not suggest that the plaintiff had the physical capacity to resume work, whether suitable or light duties or otherwise. However, three days after his report, as noted below, the defendant's solicitors wrote to him on 19 September 2013 raising a number of matters for comment (seven in all - see paragraphs 1 to 7). In paragraph 6 it is clear that he had been asked by the defendant's solicitors to consider the question as to whether the plaintiff was fit for work. Dr Harvey, not having addressed that issue in his report of 16 September 2013, stated in his report of 20 September 2013:

"6. Mr Campton has had a spinal fusion and as stated in my report of 16/09/13, it is consistent therefore that he would have difficulty doing work which involved much bending or heavy lifting. I consider that he would be fit for lighter work only. I note that Dr Ferch has tried to precisely set out his work capacity and I think his opinion is a reasonable one. I would agree with the general thrust [of] his opinion. If Mr Campton could be induced back to some lighter work, then his capacity for lifting would gradually improve with time and I don't believe that it would be necessary to put any long-term arbitrary limit on his lifting capacity. However, I think it would be reasonable that he might have difficulty with heavier lifting."

Dr Harvey, when specifically asked by the defendant's solicitors in a letter dated 27 August 2013 for his opinion on whether the degenerative changes could have caused symptoms without injury, importantly stated that he did not think it would be possible to state that the plaintiff would have developed symptoms if the incident on 1 July 2010 had not occurred. I will refer in detail to this aspect below: at [171]-[177].

In his second report of 16 September 2013, Dr Harvey responded to the plaintiff's letter concerning his examination on 30 October 2012. Dr Harvey, in effect, stated that he always took "... the greatest care not to cause undue discomfort ...". He denied that he had placed his knuckle into the plaintiff's back. This was in response to a complaint by the plaintiff that Dr Harvey's examination had allegedly exacerbated his back pain.

The defendant's solicitors again sought to have Dr Harvey address the issue of pre-existing degenerative changes in a letter to Dr Harvey dated 19 September 2013. This, as discussed below, went to an issue sought to be raised by the defendant, that is, that the plaintiff's working life would have been limited/shortened by reason of degenerative changes in his spine. Dr Harvey in his response report dated 20 September 2013 stated, inter alia:

"1. You are requesting me to predict what could have happened in this man because of pre-existing degenerative changes in the lumbar spine. As I have indicated at the bottom of page 6 of my report of 16/09/13, this is quite impossible. Degenerative changes in the lumbar spine are a universal occurrence in the population and it has been shown that there is no good correlation between the presence of such radiological changes and symptoms. Occasionally these degenerative changes or degenerative changes in the disc do produce pressure on the nerve roots and then the person develops radiating pain down the limbs. If such an event occurs after any injury it would seem reasonable to presume that this injury may have caused the onset of such a painful episode. I have been unconvinced that Mr Campton's pain was due to pressure on nerves. Dr Ferch has carried out two operations on the presumption that it was and these operations have been ineffective and this would give further evidence that my opinion is correct ..." (emphasis added)

Dr Harvey further dealt with specific issues raised by the defendant's solicitors. These included matters upon which he expressed his opinion as follows:

That, as noted above, he did not believe it could be predicted that the plaintiff would have developed lumbar disability had the accident on 1 July 2010 not occurred.
He believed that many of the plaintiff's symptoms could not be explained on a physical basis.
It was unlikely that there was any significant organic basis to explain the plaintiff's complaint of numbness in the hand.
He did not believe that the plaintiff's shuffling gait was due to any organic cause.
He did not consider it was possible that the plaintiff could have peripheral neuropathy and have brisk tendon jerks in the knees and ankle.
Having undergone spinal fusion, it was consistent that the plaintiff would have difficulty doing work which involved much bending or heavy lifting. He considered that he would be fit for lighter work only.
He did not consider the recommendations in the report of Suzanne Ravagnani of 14 August 2013 could be regarded as reasonable. He agreed that it would be reasonable for the plaintiff to have domestic assistance for heavier gardening work and some home maintenance which required a certain degree of agility. He would not expect this to exceed approximately, on average, two hours per week.

Dr Harvey proceeded in his report of 20 September 2013 to discuss the matter upon which he differed from Dr Ferch, namely, the symptoms, in particular, numbness in the lower limbs. As discussed below, the basis and validity for Dr Harvey's opinion on this latter issue is one that requires examination having regard to the nerve conduction studies, surgical findings and opinion of Dr Ferch (as well as the opinion of other medical examiners).

In his report of 14 October 2013, Dr Harvey made comments on segments of a DVD film shown to him. The DVD was a surveillance recording of the plaintiff, predominantly filmed on 23 November 2012. He said the film showed the plaintiff walking with his wife at times with a slight limp but that he "certainly" did not have a dropped foot gait. This observation is at odds with those of Dr Ferch. He also stated that the DVD tended to confirm his opinion that there was not any objective evidence that he had any significant neurological abnormality in the lower limbs. He did not consider that any conclusion could be reached concerning the plaintiff's back condition:

"... because none of the DVD showed any clear indication that he was bending his back or doing any heavier lifting. The nearest that one could see him doing any lifting is when he leant into the back of the car to lift out a bundle of clothes ..."

Dr Harvey also made the following comments:

"...he can be seen walking along the street with no apparent difficulty".
"He did this [walking down a few steps] without any apparent difficulty and it was also obvious that he was not paying any particular attention to the fact that he was walking down steps, as might be anticipated in a person who has any significant limb weakness."

In his further report dated 18 October 2013, Dr Harvey made the following additional comments in respect of the DVD:

"...he can be seen on this DVD walking without any significant problem and moving his lumbar spine much more freely in the standing position than he was doing for me during the clinical examination on 30/10/12 when I could not demonstrate any flexion or extension at all of the lumbar spine".
"I believe this DVD supports my findings that he had no significant neurological abnormality when I examined him on 30/10/12 and the apparent complete lack of movement in the lower lumbar spine when I examined him on this occasion was not consistently present and represented a gross exaggeration."

In that same report, Dr Harvey however wrote:

"I am unconvinced that Mr Campton's symptoms are due to physical disease and cannot be explained on the basis of physical injury. Naturally had there been no injury on 01/07/10 he could developed [sic] some pain in the future with some minor injury but I don't believe that could be predicted. Certainly it couldn't be predicted merely because he had pre-existing degenerative change." (emphasis added)

PART H - DEFENDANT'S "CASE" BASED UPON PRE-EXISTING BACK SYMPTOMS

On the application of the defendant, leave was granted for Dr Ferch to be recalled for cross-examination upon three specific matters. The first concerned treatment by Dr Whittaker of the plaintiff for symptoms of numbness down the left leg medial aspect. The defendant wished to explore whether this suggested that the plaintiff had, before the accident of July 2010, developed symptoms referable to pre-existing changes, in particular at the L4/5 level.

The evidence in this respect was as follows:

"HIS HONOUR:

Q. Doctor, just [to] clarify, these questions relate to an entry in the clinical notes of Dr Whitaker, the relevant date is 10 March 2009 and I'll have the entire entry read to you and then you may be asked a question or two.

JOSEPH

Q. Doctor, Dr Damien Whittaker's name appears:

"Work injury review; performing pre-injury duties, seeing Dr Burton, 14 May possibly for further MRI. May require ACL repair. Management: Continue PID that's pre injury duties, awaiting new specialist review.

Then another heading Unrelated Problem: Problems with numbness down left leg medial aspect, medial aspect of foot and burning sensation of forefoot and toes. Permanent - was initially intermittent? Wears tight gaiters around that region of left leg. Will try not wearing them for a while and see if it improves. Examination: Left LL, which we understand is lower limb, normal reflexes, reduced vibration sense and light touch in left L4 region and base of forefoot. Normal proception and power. Reason for contact, question mark. Compression neuropathy, question mark. Diabetic mononeuritis.

Management: NCS referral to Dr Katekar."

The question is this, in respect of that part of the entry dealing with the "problems" and "the examination", does that provide you with any additional information that would indicate any symptoms in the back that may have pre existed the time you saw the plaintiff?

A. The distribution is a little different to when I saw him and he had an acute onset of symptoms after his recent event, but it is possible that some of those symptoms in particular, on the dorsum of the foot could be a cross over, but the medial calf is more L4. And the question of whether there's a compressive thing, wearing stockings around the leg which can compress the nerves down to the foot was a contributor seems reasonable. We do know he has a degree of peripheral neuropathy. That could be also an explanation. The short answer is, it could be consistent with some pre existing condition, but it does not specifically indicate that.

Q. And my question is you, of course, initially operated at L4/5 level?

A. Yes.

Q. And are those symptoms consistent with the L4/5 level, that is, the ones in March 2009?

A. On the basis of those symptoms, the local doctor was concerned about not specifically spinal compression, but more peripheral source, and I would also be concerned about that as a source. I don't think that's as indicative of L5 nerve compression as what the presentation was in 2010.

Q. If there is a developing situation, does it start off ambiguously in a sense and becomes more certain as time goes on?

A. Sensory symptoms can be a little diffuse. They are not always in the correct distribution you expect for a nerve. The acute deterioration in July 2010 fitted very well with the nerve. It may or may not have been associated with developing symptoms in that distribution because for sure, there have been progressive changes in that nerve over time." (T 771-2) (emphasis added)

Mr Joseph moved to the next issue:

"Q. Doctor, perhaps I can read this question to you, given that presentation in March 2009, does that create in your mind, a likelihood or possibility that even without the incident in 2010, that there would have at some stage, even for minor jarring, a presentation such as you found in 2010?

A. A possibility, yes, but not a likelihood. I would have said the likelihood was that the acute episode resulted in acute deterioration in the nerve function which is what precipitated treatment through me.

This topic was again explored at the start of the third day. The plaintiff was asked how he had described the symptoms in his left foot following the accident, specifically, whether he described it as "burning" or numbness (T 259-262). He was then asked if the pain in his foot improved following his various operations (T 262-263).

Mr Joseph questioned the plaintiff on the medical histories given by him as to any numbness in his right hand or foot, in particular, whether it had been reported to Dr Harvey following the second operation (T 263-264). It was put to the plaintiff that the pains in both thighs after the operation was because of the position during the operation (T 264-265).

The Hawks Nest Golf Club Visit

As noted at [859], the plaintiff was cross-examined about a visit to Hawks Nest Golf Club. The plaintiff was once again cross-examined on the trip to Hawks Nest Golf Club, which the plaintiff said he made to have lunch with his wife.

Ankle Jerks

The plaintiff was then cross-examined on the subject of ankle jerks and whether doctors had tested his ankle. It was suggested that he had been less than truthful and had consciously held his ankle when asked to relax during these tests (T 274-275). He denied this.

Attendances on Mr Ravagnani - 2007 Ankle Injury

Following lunch on the third day Mr Joseph asked the plaintiff a number of questions regarding his attendances on Mark Ravagnani in 2007 following an ankle injury (T 369). He was asked whether he had told Mr Ravagnani about the pain he was experiencing as well as any numbness (T 370). Further questions were asked about whether it was the plaintiff's right or left ankle that had been injured. It was suggested that the plaintiff had correctly said at the time that his right ankle was injured.

This was again raised at T 397 where it was suggested to the plaintiff that he only attempted to correct Mr Ravagnani's statements regarding the plaintiff's "right" ankle after his solicitor had told him that reports regarding his right ankle would be inconsistent with his case (T 397-398). The plaintiff disagreed (T 398).

Plaintiff's Mobility

Mr Joseph also asked numerous questions regarding the plaintiff's mobility around his house.

He was asked whether he could walk up and down the stairs of his house in November 2012, despite telling the pain clinic in January 2011 that he was planning to move house in the near future (T 378-379). He was asked about the various reports he had given to people of his intention to move house. It was put to him that the fact he never bothered to move house even though he told people about moving houses indicated that he lived quite well in that house (T 379). The plaintiff's response was that "my situation has changed now".

After referring to the surveillance footage of the plaintiff (discussed below) Mr Joseph asked the plaintiff about the movements he demonstrated to Ms Hughes when she attended his home for an evaluation (T 393-394). The photographs taken by Ms Hughes were also shown to the plaintiff.

He was later asked about his ability to bend down and get items from a supermarket (T 395).

Physiotherapy and Hydrotherapy

The plaintiff's attendances at physiotherapy and hydrotherapy were also discussed towards the end of the plaintiff's cross-examination (T 392-393).

Surveillance Footage

Towards the end of the plaintiff's cross-examination during the East Maitland hearing Mr Joseph asked the plaintiff many questions as to his ability to perform certain tasks and in doing so showed the plaintiff photos taken from surveillance footage. This was first addressed in the context of asking the plaintiff about his mobility in and around his house.

The plaintiff was asked about his ability to walk up and down the stairs in his driveway following the first operation and the difficulties he experienced when doing so (T 381-384). Mr Joseph suggested that the plaintiff was able to walk around the front area of his house in November 2012 without difficulty and without any limp. He was asked whether the surveillance footage would show him limping at all. He was then asked whether his altered gait would be obvious to anyone looking at him (T 384). This same question was also asked at a later stage (T 395).

He was then asked about his ability to bend down in November 2012 and whether he had had problems bending following the accident (T 385-388). He was also asked about what he had told treating practitioners about his ability to bend, specifically, Ms Hughes. The plaintiff was then shown photos from the surveillance footage of him apparently bending (T 388).

The plaintiff was then questioned about having attended a bank that has both stairs and a ramp (T 389-390). He was shown a photograph from the surveillance footage in which he is apparently walking down stairs without using a handrail.

The plaintiff was also asked about his ability to do an hour's shopping either in 2012 or presently (T 390-391).

He was then asked whether he had ever placed items in a charity collection bin and whether it would cause him difficulty to lift items and place them in the bin (T 391).

The plaintiff was not given the opportunity in evidence of seeing the surveillance DVD from which the still photos were taken.

Attempts to Return to Work

The plaintiff was cross-examined on work he performed following the accident. The plaintiff said that he was on selected underground duties for two weeks (T 77). Mr Joseph suggested this made it easier for him to "pick and choose" what he did.

This was later canvassed in detail from T 97-105, in particular:

Whether the plaintiff looked for work from the date of the accident to June 2012 (T 97).
When the plaintiff asked his employer three months after the accident if he could return to work (T 98).
Whether the plaintiff knew there were no permanent light duties jobs available when he asked if he could return to work (T 98).
Why the plaintiff then waited until 2012 to again look for work (T 99).
Why the plaintiff did not seek work in other industries (T 100).
The plaintiff's attendances on Dr Whittaker in 2012 seeking a certificate to claim total and permanent disability (T 102).
Whether the plaintiff considered himself totally and permanently disabled (T 102-103).
Whether the plaintiff considered himself retired (T 100-102; 104-105).
Whether the plaintiff had described himself as retired because he was no longer interested in work (T 105).

Mr Joseph suggested a number of times to the plaintiff that he knew he would not be able to return to work permanently on light duties, and that his only reason for returning to his employer asking for such work was so that he could meet workers' compensation entitlements as a result of being ready, willing and able to do suitable duties (T 99). The plaintiff responded that his attempts to return to work were "genuine efforts" and said that "if they had have gave me a job there I would have worked it".

Shortly afterwards Mr Joseph asked whether Dr Ferch considered the plaintiff fit to return to work in May 2013, and whether following attendance upon Dr Ferch he had looked for any work of a selected kind (T 109).

The topic was again discussed on the third day. The plaintiff was questioned on the number of occasions on which he had looked for work and why he had done this in mid-2012 (T 275-278). He was asked why he had not mentioned various applications in his 2012 evidentiary statement. It was suggested that the reason why he had not done so was because he was not actually looking for work. The plaintiff denied this and said that "I'd like to suggest to you that I am [looking for work]" (T 278).

The plaintiff was then asked why he had not been looking for work on the internet earlier. The plaintiff said this was because of the cancer he had on his head (T 278-281).

He was then asked whether his cancer "scare" had led to thoughts about retirement. Mr Joseph proceeded to ask questions as to why the plaintiff had accepted redundancy and did not persist with looking for a light duties job (T 281-282).

He was then asked about his capabilities with regard to internet searching and whether he could search for jobs (T 283-285). The questioning was possibly suggesting that the plaintiff began searching for work only when it was time to prepare his first statement in the proceedings (T 285-287).

The plaintiff was cross-examined on WorkCover certificates he had received. He was asked why he had not started looking for work as soon as he had received a certificate in September 2011 that said he could look for suitable work (T 288-289).

It was suggested to him that he never wanted a job after the accident but that he only wanted to give the appearance of looking for a job (T 290). The plaintiff responded that that was "not true". His various job applications were then discussed (T 291).

A short while later the topic was revisited when Mr Joseph asked the plaintiff about an application he made to Whitworths Marine, in particular, why he had applied for the job in circumstances where the advertisement did not refer to the number of hours required, and when he had never asked why he had been unsuccessful (T 296-303). The plaintiff said it was because he was unable to do the necessary lifting.

The plaintiff was questioned about his job application to Repco and the various purchases he had made at Repco prior to this (T 311-315). He was asked about his account at Repco and the fact he had continued to make purchases following his accident.

This topic was revisited shortly after and the plaintiff was asked about the circumstances in which he had applied (T 322-324).

He was then asked about his job application to Bias Boating and the circumstances in which he had applied (T 324-326). He said that he made a general enquiry for work in the nature of light work or counter work, and that they said that they had no vacancies in respect of that type of work (T 325).

Mr Joseph then asked the plaintiff about other various job searches he had conducted (T 326-327).

Recreational Activities

Golf

Mr Joseph questioned the plaintiff on his recreational activities in the context of his 2007 workplace injury and the history given to Dr Millons (T 85-89).

Mr Joseph asked why the plaintiff gave up playing competitive golf. The plaintiff said this had been due to work commitments (T 85-87).

Mr Joseph then repeatedly asked whether the plaintiff had continued to play non-competitive golf prior to and following the 2007 accident. The plaintiff said he continued to play non-competitive golf up to the 2010 accident.

He repeatedly asked the plaintiff if he told Dr Millons that he played golf and whether he had told him in 2008 that he had to give up playing golf because of issues with his right ankle (T 87; 93). Mr Joseph repeatedly put to the plaintiff that he had to give up golf for up to 18 months following the 2007 accident (T 89). He disagreed.

The plaintiff also referred to playing golf when asked if he was experiencing knee problems up to October 2009 (T 97).

Following cross-examination in relation to his abovementioned consultation with Dr Harvey, Mr Joseph asked the plaintiff whether there were activities he had to give up following the accident, even with pain relief - specifically, golfing (T 199). Mr Joseph then asked the plaintiff if he had even been to Hawks Nest Golf Club. This topic had been raised before: see [859] and [925]. A series of questions were put regarding the plaintiff having lunch at the golf club and whether he had played golf whilst at the club (T 199-200). There was no evidence that he had done so. The plaintiff stated that "I have never swung a golf club from the day that I was injured" (T 199).

Hawks Nest Golf Club was revisited once again (on the third day). The plaintiff was asked how much the lunch at the golf club had cost. It was suggested to the plaintiff that he would not have travelled all the way to the club just for lunch because of his back pain and that he had in fact paid to play golf (T 273-274). The plaintiff rejected the proposition.

Shopping

In the context of questioning the plaintiff regarding his consultation with Dr Harvey the plaintiff was asked if he had attended Bunnings prior to attending the physiotherapist the day after seeing Dr Harvey (T 179). Mr Joseph asked a series of questions regarding purchases made on the plaintiff's credit card that day and whether or not he lends his credit cards to his sons (T 180). He was also asked whether his wife attends Bunnings (T 184). He said that she "buys quite a lot of stuff at Bunnings".

Mr Joseph then cross-examined the plaintiff in some detail about his shopping history at Bunnings and the sorts of items he has purchased (T 184) and whether or not his wife accompanied him on these occasions (T 185). His response was that his wife would have been with him at Bunnings "because we do everything together".

The plaintiff was asked about what members of his family were doing on the day following the physiotherapy appointment (T 185).

After lunch on the second day Mr Joseph commenced a series of questions about the plaintiff's credit cards, in particular, whether or not they had PINs and the circumstances in which he would loan his cards to his family members (T 204-207). He said that on occasions he lends his credit card to his two sons to either purchase stuff on his behalf or their own behalf (T 204). He said that his wife had her own credit card, but that his and her cards were linked to the same account (T 205).

It was suggested to the plaintiff that he had regularly attended Bunnings from at least 2012 to the present time (T 209). The plaintiff responded that he had been only a couple of times. Mr Joseph then went through the plaintiff's credit card entries for Bunnings and the various reasons for which his son would have used his credit card at Bunnings (T 209-212). The plaintiff also asked about the various things he had purchased and the reasons for those purchases (T 212).

The plaintiff's credit cards were then discussed generally (T 214-215).

The plaintiff was later asked about his shopping at Whitworth Marine (T 291-294), Repco (T 311-315) and at various tackle stores for fishing.

He was then asked about shopping he had done at places called Rod Gear, Bias Boating and Kangaroo Tent City (T 318-320). Mr Joseph asked whether these purchases were consistent with his pre-accident hobbies. It was suggested it was misleading for the plaintiff to have said in his statements that he had had to give up fishing and golf after the accident (T 320). The plaintiff agreed that he had "done a small amount of fishing". There was no evidence in the proceedings to suggest that he had played golf after the subject accident.

The plaintiff was later asked about his purchases at ACME Fibreglass and why he was purchasing fibreglass items on his credit card for his brother (T 327-334). It was suggested that the purchases were in fact for his personal use (T 331). This was denied.

He was then asked about his purchases at Boating, Camping & Fishing and the plaintiff's account at that store (T 334-338). He was asked about the items he had purchased and the reasons for purchasing them. He said that he buys presents for his sons from that store because his sons and their girlfriends like to go fishing (T 336).

It was also suggested that the plaintiff had previously hired trailers (T 395-396). He was also asked about repairs undertaken on his trailer and the equipment he purchased to do this (T 396).

Boats

After discussing Bunnings Mr Joseph asked the plaintiff if he had bought a boat less than 2 weeks after seeing Dr Harvey (T 212). After the plaintiff said he had purchased a boat for his son to use, Mr Joseph asked a series of questions regarding the boat and why the plaintiff would have purchased it (T 212-214).

On the third day the plaintiff was asked about a job application at Whitworths Marine. Mr Joseph asked questions of the plaintiff as to whether he had attended the store previously and the types of items he had purchased (T 291-294). He was also asked about the number of boats he owned at this time and whether he had a boat trailer registered in his name (T 292-293).

Mr Joseph then asked about the time the plaintiff's son had to be rescued from a boat by the coast guard which then led to the plaintiff buying the new boat (T 295-296). He said that "I can't work on things so it was best to buy something that was new and reliable".

When discussing the plaintiff's job application and purchases at Repco he was asked about outboard motor repairs he had previously done and whether they had caused any difficulty (T 315).

The plaintiff was asked about his boating licence and whether it had been renewed (T 340-342). It was suggested that he would not have renewed the licence if he genuinely believed he would not be able to be in his boat again. He was then asked about all the occasions he had been on a boat following the accident, specifically, on the new boat that he had purchased. He was asked about whether he drove the boats and how long he had been in the boats for each time (T 342-344). He said that he had been on the boat no more than three times since it was purchased and for no longer than one hour on each occasion. He said that each time he was with other people and was not driving the boat.

Fishing

After discussing the plaintiff's repair work on boats he was asked whether he had told the pain management clinic that he had had difficulties fishing (T 316). He was then asked about the sort of fishing he had done and the various tackle purchases he had made since the accident (T 316-318; 320-322). He said that in recent years his sons had purchased tackle on his credit card and that if he had purchased any tackle it would have been as a present. He said that he already has his own tackle "from many years ago" and that he therefore would not have been purchasing tackle for himself.

The plaintiff was then asked about his fishing licence (T 340). He said he had previously had a fishing licence, but that he had not had one for at least 18 months.

Bicycle riding

Following a number of questions about the plaintiff's leg pains subsequent to his operations, Mr Joseph asked him whether he had been riding bicycles and the circumstances in which he had been riding, such as distance and time (T 265-267). He was asked whether medication helped with the pain he experienced after riding. The plaintiff said that he takes one Mobic tablet every morning and that that eases the pain.

Travel

After discussing the plaintiff's various job applications Mr Joseph began to ask questions about the plaintiff's travels in 2011 and 2012 (T 303-307).

The plaintiff said that he owns a time share property in Bali. Under that scheme he is entitled to stay at the property for seven days each year. He also said that he and his wife had travelled to Merimbula, Batemans Bay and Moruya because his brother-in-law lives in that area. In addition, he and his wife went to Cairns and Port Douglas for up to 10 days in May 2012.

He was asked about his reasons for travelling on each occasion. It was suggested that those trips were consistent with someone who was retired (T 307-308). He disagreed.

Cars

The plaintiff was asked about the cars he has owned after lunch on the third day (T 367-368). Mr Joseph took the plaintiff through RTA car ownership records.

Towards the end of the plaintiff's cross-examination he was shown a photograph of a Nissan car which became MFI 18 (T 394).

Domestic Tasks and Assistance

The nature of the care provided by Mrs Campton was first raised in the context of whether Mr Campton considered himself or his wife to be pensioners (T 105-106). This developed into a series of questions as to the amount of time Mrs Campton spends on caring for the plaintiff and the types of care provided (T 106-108). Mr Joseph particularly focused on whether these were tasks also performed by Mrs Campton prior to the accident (T 107).

The plaintiff was also asked a series of questions regarding Ms Hughes' attendance at his home in 2012 (T 108-113). He was shown various photographs taken by Ms Hughes and asked whether he was or was not able to now do those activities. When the plaintiff occasionally responded with words to the effect "I can do that but it causes me pain", Mr Joseph repeatedly asked why the plaintiff would perform tasks that caused him pain (eg T 112).

On the second day of cross-examination Mr Joseph asked a series of questions about the household assistance provided by Mrs Campton (T 217-219). Mr Joseph asked the plaintiff whether he had done any painting since the accident. Mr Joseph suggested that the plaintiff concocted a story about being a graffiti artist in order to cover up a concern Dr Coolican had regarding paint on the plaintiff's legs (T 219-223). The plaintiff said "I graffiti on the wall regularly" (T 222).

On the third day the plaintiff was asked about the claim he had made to move house after the first operation and the reasons for making this claim (T 371-374). He was asked about his difficulty in going up and down stairs and his need for handrails. It was suggested that he would not have parked his car at the bottom of the house if he had difficulty walking up the stairs to his house (T 373). He was then shown some photos from the surveillance footage.

Mr Joseph later asked further questions about the plaintiff's car being parked at the bottom of the house in August 2013 (T 379).

It was put to the plaintiff regarding his ability to walk up and down the stairs of his house in November 2012 that the fact he never bothered to move house, even though he told people about moving houses, meant that he lived quite well in that house (T 379). The plaintiff responded that his situation had changed since the last operation.

Mr Joseph also asked questions about renovations being done on the house in July 2012, including a Queensland room at the back of the house (T 379-380). It was suggested he would not have undertaken renovations if he had been intending to move house.

Family Circumstances

When first asking questions about Bunnings and the plaintiff's credit card being used by his sons, Mr Joseph asked a number of questions regarding the plaintiff's sons' occupations, study, and living arrangements (T 180-184). The plaintiff has two sons. He said his eldest son is employed and that his youngest son is presently unemployed and living at the family home. He said that one of his sons has been completing TAFE courses online for the past four years.

Mrs Campton's employment situation was first discussed briefly during the questioning about Bunnings (T 185-186).

This was again raised a little while later by Mr Joseph in reference to the sentence in the plaintiff's statement: "When I'm in a position to afford to do so I'd like to pay someone to assist my wife" (T 217). Mr Joseph proceeded to ask a series of questions about Mrs Campton's employment situation and the various activities Mrs Campton does around the house or for which she receives assistance, eg lawn mowing (T 217-219).

Following additional questions regarding the circumstances in which the plaintiff would lend his credit card to family members, Mr Joseph again proceeded to ask the plaintiff about his sons' employment circumstances, including why one of his sons had remained unemployed (T 208-209).

Financial Circumstances

On the second day of cross-examination the plaintiff was asked a number of questions regarding his salary at the time of and prior to the accident (T 222-226). Mr Joseph went through the plaintiff's various deposits into his superannuation fund (T 225-229). This led into a series of questions regarding the plaintiff's anticipated retirement age (T 229-230). He said that prior to the accident he had not considered the age at which he would retire. When it was suggested to him that his retirement age could have been 65, he responded "probably", but that he was not prepared to specify a date on which he would have finished working (T 229).

SCHEDULE B

MS RAVAGNANI'S SUMMARY OF FUTURE NEEDS COSTINGS

As noted at [824], I attach as a schedule to this judgment Ms Ravagnani's "Summary of Future Needs Costings", as contained at [5.12] on pages 22-23 of her report dated 10 October 2011.

**********

Schedule (PDF)

Decision last updated: 22 December 2014

Medium Neutral Citation:	Campton v Centennial Newstan Pty Ltd (No 2) [2014] NSWSC 1799
Hearing dates:	24-27 February 2014; 17-21 March 2014
Decision date:	17 December 2014
Jurisdiction:	Common Law
Before:	Hall J
Decision:	The proceedings are to be re-listed on 13 February 2015 for the purpose of providing the parties with an opportunity to check calculations, deductions and adjustments required by law and otherwise in accordance with this judgment. [NOTE: At handing down of judgment, the date for re-listing was amended to 20 February 2015]
Catchwords:	TORTS - negligence WORKERS COMPENSATION - employment - mining industry - plaintiff injured in workplace accident at a coal mine in 2010 - plaintiff suffered spinal injury - liability admitted during the hearing -defence of contributory negligence withdrawn during the hearing DAMAGES - consideration of the quantum of the plaintiff's claim - principles to be applied in determining partial or total incapacity for work - determination that the plaintiff is unable to return to any form of work -whether damages for future loss of earnings should be awarded on the basis of a retirement age greater than 65 years - determination of the plaintiff's likely retirement age - assessment of plaintiff's future needs - determinations made in accordance with the provisions of the Workers Compensation Act having regard to Sch 3 Part 18
Legislation Cited:	Civil Liability Act 2002 Motor Accidents Act 1988 Workers Compensation Act 1987
Cases Cited:	Arthur v Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 Berkeley Challenge Pty Limited v Howarth [2013] NSWCA 370 Bridge Printery Pty Ltd v Jose Mestre [1999] NSWCA 342 De Beer v The State of New South Wales [2009] NSWSC 364 Dell v Dalton (1991) 23 NSWLR 528 Dykstra v Head (1989) Aust Torts Rep 80-280 Fox v Wood (1981) 148 CLR 438 Franklins Limited v Burns [2005] NSWCA 54 Gordon v Truong [2014] NSWCA 97 Government Insurance Office v Lazar [1991] NSWCA 123 Jandson Pty Ltd v Welsh [2008] NSWCA 317 Jones v Dunkel (1959) 101 CLR 298 Knight v Anderson (1997) 26 MVR 105 Mead v Kerney [2012] NSWCA 215 Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 Morgan v Costello [2004] WASCA 260 Najdovski v Crnojlovic [2008] NSWCA 175; 72 NSWLR 728 Nominal Defendant v Livaja [2011] NSWCA 121 Rabay v Bristow [2005] NSWCA 199 Seltsam Pty Ltd v Ghaleb Southgate v Waterford (1990) 21 NSWLR 427 Strike v Fiji Resorts Limited [2012] NSWSC 1271 Thatcher v Charles (1961) 104 CLR 57 Woolworths Limited v Lawlor [2004] NSWCA 209
Category:	Principal judgment
Parties:	Ian Barry Campton (Plaintiff) Centennial Newstan Pty Limited (Defendant)
Representation:	Counsel: B Dooley SC; P O'Rourke (Plaintiff) M Joseph SC; D Stanton (Defendant) Solicitors: Whitelaw McDonald (Plaintiff) Sparke Helmore (Defendant)
File Number(s):	2012/70316