Celenza v Stockdale
[2006] WADC 3
•18 JANUARY 2006
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: CELENZA -v- STOCKDALE [2006] WADC 3
CORAM: EATON DCJ
HEARD: 3-7 OCTOBER 2005
DELIVERED : 18 JANUARY 2006
FILE NO/S: CIV 3011 of 2002
BETWEEN: ANTHONY UMBERTO CELENZA
Plaintiff
AND
STUART STOCKDALE
Defendant
Catchwords:
Torts - Damages for personal injury - Dispute as to nature of injury suffered - Assessment of damages
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943
Result:
Judgment for the plaintiff in the sum of $20,171
Representation:
Counsel:
Plaintiff: Mr K J Bradford
Defendant: Mr J R Brooksby
Solicitors:
Plaintiff: Bradford & Co
Defendant: Greenland Brooksby
Case(s) referred to in judgment(s):
Jongen v CSR Ltd & Anor (1992) Aust Torts Rep 81‑192
March v E & M H Stramare Pty Ltd & Anor (1991) 171 CLR 506
Case(s) also cited:
Apex Holiday Centre (Inc) v Lynn [2005] WASCA 58
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Bowen v Tutte (1990) Aust Torts Reports 81-043
Bradburn v The Great Western Railway Company [1874] LR 10 Exch 1
De Sales v Ingrilli (2000) 23 WAR 417
Fox v Percy [2003] HCA 22
Greenhalgh v Baum [1999] WASCA 142
Husher v Husher (1999) 197 CLR 138
Keogh v Dom-Uie Pty Ltd, unreported; FCt SCt of WA; Library No 950649; 29 November 1995
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
Pene v Murphy [2004] WASCA 103
Phillips v Brown [2001] WADC 123
Pollock v Wellington (1996) 15 WAR 1
Purkess v Crittenden (1965) 114 CLR 164
Saare v Jenkin [2002] WADC 36
Thomas v O'Shea (1989) Aust Torts Reports 80-251
Watts v Rake (1960) 108 CLR 158
EATON DCJ: This action arises out of a motor vehicle accident which occurred on 31 May 2000 on the Narrows Bridge spanning the Swan River at Perth water. It is common ground that the plaintiff was, at the time of the accident, driving his 1994 Toyota Dyna 400 truck, registration No 9KT 832, in a southerly direction on that bridge, with his seatbelt fastened. The defendant was driving a Toyota one tonne van, registration No MSS 123, in the same direction as the plaintiff, and immediately behind the plaintiff's vehicle. Although it is not admitted on the pleadings it appears to be common ground that the vehicle driven by the defendant collided with the rear of the vehicle driven by the plaintiff, and that the collision was caused by the negligence of the defendant.
At the time of trial the plaintiff was aged 35 years, having been born on 17 December 1969. He commenced action in this Court by writ of summons and statement of claim filed on 8 November 2002. He seeks damages from the defendant. On 28 November 2002 the defendant filed a defence admitting negligence, denying that the plaintiff had suffered the loss, injury or damage pleaded and that the plaintiff was entitled to the relief claimed or any relief. Pursuant to orders made by Deputy Registrar Kingsley on 14 July 2005 the defendant amended his defence to further plead that the accident was of such a minor nature as to be unlikely to have caused any or any significant injury to the plaintiff.
The plaintiff's background
The plaintiff was educated at Christian Brothers College in Fremantle, Applecross Senior High School and Melville Senior High School. He qualified for entrance to tertiary education at the latter, enrolling initially for the degree of Bachelor of Economics and later transferring his enrolment to one seeking the degree of Bachelor of Arts. Neither degree was completed. The plaintiff said that he was unable to cope and that he eventually decided to join the army. He had been a member of army and air force cadets for four years.
On 10 July 1989 at the age of 19 years, he entered the Royal Military College at Duntroon in the Australian Capital Territory. Within four to six weeks of commencing at Duntroon he broke a rib during field training. Not long after he made the decision to leave Duntroon and did so in October 1989.
Returning to Western Australia he completed a course in real estate sales at a college of tertiary and further education in November and December 1989. In June 1990 he began working at the Gosnells office of the "L J Hooker" franchise as a sales representative. He said of that work: "I tried my best but I didn't do so good". He said that he didn't like that work. It seems that the plaintiff worked in real estate and generated sufficient income to enable him to travel to Europe for an extended holiday in March 1992. He returned to Western Australia in May 1993 and resumed working as a real estate sales representative from the same office which was then a "First National" franchise.
In about May 1994 the plaintiff purchased a one tonne Ford delivery van and commenced work as a courier. His tax return for the year ended 30 June 1995 indicated income from two sources, $3,156 from his work as a sales representative with "First National" Gosnells, and $2,394 being the net income of his business as a courier driver. It seems that in 1995 the plaintiff acquired an investment property which was rented on a "negatively geared" basis.
The plaintiff said that in mid 1995 he sold the Ford one tonne delivery van and purchased a four tonne Toyota Dyna truck for $43,500, paying a deposit of $3,000 to $4,000 and borrowing the balance. His income tax return for the year ended 30 June 1996 indicates that his primary source of income was that of courier driver with supplementary income by way of rental from the investment property. The returns for the years ended 30 June 1997 and 30 June 1998 indicate little change in the plaintiff's income earning activities.
In the year ended 30 June 1999 the plaintiff's tax return indicates a variety of different sources of income, he having received group certificates from businesses described as "The Mattress Renovators", Henry Walker Contracting Pty Ltd, "Reef Contract Cleaning" and Stafflink WA Pty Ltd. It seems that the work with Henry Walker Contracting Pty Ltd involved the plaintiff working on a road construction camp near Marble Bar in the Pilbara region of Western Australia. For reasons which are not clear, it seems that the plaintiff's work as a courier was not going as well as it had in previous years. He continued to receive rental from the investment property. In that year he appears to have generated a taxable income of $23,716. The motor vehicle accident which gave rise to the claim for damages occurred on 31 May in the following financial year. In that year the plaintiff's income appears to be predominately from his work as a courier driver.
The circumstances of the accident on 31 May 2000
At the trial the plaintiff and the defendant both gave evidence as to the circumstances of the motor vehicle accident. The plaintiff said that he was, on 31 May 2000, driving his Toyota Dyna truck south on the Narrows Bridge at approximately 4.20 pm. He said that there was a work zone because of work being undertaken on the Narrows Bridge duplication at the time. He was travelling, not in the right hand lane but in the one adjacent to it. He thought that the speed limit in the work zone was 40 kilometres per hour and that he was travelling at about 35 to 40 kilometres per hour. The traffic, he said, was steady. He saw that there was a motor vehicle accident ahead in his lane, and slowed to a crawling pace. Three vehicles cut into his lane in front of him so he stopped his vehicle and sat stationary with his foot on the brake. He said:
"Then I felt someone hit me at the back and I lifted up in the seat and the truck lurched forward and I lurched back into the seat."
He said that his vehicle rocked forward on its suspension without the tyres rotating, because the brakes were on. He immediately felt that something was wrong with his back, saying:
"I had a completely strange new pain and I adjusted myself, looked behind, and I saw a vehicle has crashed into me and I thought that they might have needed first aid after all, so I went down and went to inspect what had happened."
Having alighted from his vehicle the plaintiff went to inspect the vehicle that had struck his. It was resting against the back of his truck with its nose crushed in, like "a concertina" effect. He said that the driver of that vehicle was seated in the driver's seat, still holding the steering wheel, with the window up. The plaintiff said that he knocked three times and the driver finally opened the window. It was the plaintiff's opinion that the defendant was in shock.
When asked whether there was any damage to his vehicle the plaintiff said that he had to look closely and saw that there was a piercing dent in the rear steel step. He described the dimensions of that dent as being about half the length of a finger nail or about five or six millimetres.
When asked by his counsel as to the likely speed of the defendant's vehicle prior to impact, the plaintiff said that in his estimation the defendant was either speeding or at least driving the minimum speed which was, in that section of the road, 40 kilometres an hour.
The defendant, Stewart Geoffrey Stockdale, said that at the time of the accident he was running his own business installing security systems. On the day in question he had completed work and was travelling home, arriving at the Narrows Bridge at approximately 4.15 or 4.30 pm. He described traffic at that time as being quite heavy noting that it was raining at the time and that he had his windscreen wipers operating. His intention was to traverse the Kwinana Freeway towards the Canning Bridge. He was travelling in a white 1995 Toyota Town Ace van. As he crossed the Narrows Bridge it was necessary for him to move from the lane which would eventually exit into Mill Point Road in South Perth onto an adjacent lane which would take him onto the Kwinana Freeway. Having passed the apex of the bridge he said:
"All of a sudden a truck stopped straight in front of me, stopped dead; not slowly stopping, stopped dead, and I hit the brakes hard and then just skidded slowly into him, just slow motion".
When asked what speed he had been travelling at he said about 15 kilometres an hour before applying the brakes. He thought that at the point of impact he would have been travelling at five or six kilometres an hour. His vehicle's plastic bumper which wrapped around the headlights was smashed upon impact. His windscreen cracked on the right hand side. When asked if his vehicle caused, upon impact, the truck to lift or move in any direction he replied:
"Absolutely not. It did not. I sustained the actual force of the – the pushing of my vehicle in was the force of the – I doubt if the actual truck actually moved."
He said that the cost of damage to his vehicle was approximately $3,000. His evidence was that immediately after the accident both he and the truck driver got out of their respective vehicles. They immediately appreciated their predicament, being in the middle of the freeway in quite heavy traffic. When asked if there was any damage to the truck he replied:
"Not that I saw, not that I saw. There was no – I mean, unfortunately it's like throwing a coke can against a metal bar, the coke can sustains the force, there's no damage to the metal bar and that's how it was in this instance."
The driver of the truck made no mention to him of having sustained any injury. There had been damage to the hydraulics of his vehicle's steering. If it wasn't for that damage he would have been able to drive the vehicle home.
In cross‑examination Mr Stockdale indicated that he might have been doing 20 kilometres per hour maximum before he saw the truck in front of him. He said that he skidded into the back of the truck on the wet road. The defendant admitted that the plaintiff came to the window of his vehicle and asked him if he was okay. He denied that he was in shock. He denied also that the plaintiff had to knock three times on his window before there was any response. He said "No, I think he just came up and I opened the door and I've got out."
Finally, when he was asked to respond to the proposition that he had struck the back of the plaintiff's vehicle with a great degree of force, far faster than 20 kilometres per hour, he responded "No you're wrong, definitely."
Expert opinion
Both the plaintiff and the defendant called engineers to give evidence as to the forces at work in a collision such as that described by the plaintiff and the defendant in their evidence. The plaintiff called Andrew Theodorus Van Der Meer, a civil engineer. The defendant called Martin Eric Simms, a mechanical engineer. The former was instructed that there was no appreciable forward movement of the plaintiff's vehicle on the road surface, but that the vehicle moved forward on its suspension at the time of the collision. He concluded that a 100 kilogram object such as a human body located in the front seat in such circumstances would accelerate up and forward together with the vehicle. The back of the vehicle is likely to be moved more than the front of the vehicle. He explained that the fulcrum for that movement would be the front axle. The impact would cause extension of the springs which would, in due course, retract pulling the vehicle back and down. In evidence he said:
"If a vehicle is unloaded and it's a large vehicle at the front and the smaller vehicle comes behind it, the smaller vehicle usually tends to act like a wedge and drives under the vehicle in front, distorting its front and also partially causing the springs of the vehicle in front to activate so the vehicle is distorted through the energy absorbed in the springs and also there is a tendency for the back of the truck to lift up because a truck that is stationary with its motor at the front of the truck is a relatively unstable body in rotation, so its easy to drive a wedge under a truck. So a truck driver sitting in a truck is hit from behind by something lower down often feels as though he's been thrown up into the air."
He said that that was because of the "wedge effect". He spoke of the driver being in intimate contact with the truck meaning that the driver would be seated on a seat and would be held in place by seat belts. He concluded that the driver in the front vehicle in a collision of that nature would move at approximately 75 per cent of the speed of the vehicle behind, albeit for a very short distance and a very short time. He explained:
"That's why we get people in collisions with significant seat belt marks on them. The forces on the seat belts are so high to cause bruising of the body, quite significant bruising of the body."
He concluded that the driver of the front vehicle in a collision such as that described in this case would be thrown up and forward. In cross‑examination, Mr Van Der Meer was asked whether he would agree that a Toyota Dyna truck of a size similar to that driven by the plaintiff would have a fairly rigid suspension. He replied that it would have a commercial suspension which would be leaf springs rather than coil springs. As such they would not be designed for vertical movement.
Mr Simms' opinions were predicated on the proposition that the wheels of the plaintiff's vehicle did not rotate. Mr Simms said on that basis:
"… if the truck doesn't move forward or backwards, then an occupant of a seat in it, cannot move forwards or backwards. If the truck rocks which is in fact the way it's constrained, it can only rock, that seat can only describe a shallow arc up and down and the occupant of that seat can – will describe exactly the same arc."
As to the proposition that the plaintiff's vehicle was struck from behind by the defendant's vehicle travelling at 60 to 80 kilometres per hour, Mr Simms explained that at such a speed the friction between the wet road surface and the vehicle's tyres would certainly have been overcome and the vehicle would have moved forward. That was not the case. Mr Simms said that in such circumstances:
"They would certainly know they've been hit and they'd probably – the vehicle would in fact rock around and in fact it would move."
As a consequence of the movement of the vehicle the person inside the vehicle would move. Those are, he explained, the circumstances which lead to whiplash injuries in most cases of rear end collisions.
Mr Simms concluded that if the speed of the defendant's vehicle at impact was five kilometres an hour, the plaintiff would hardly have felt the impact. Mr Van Der Meer agreed with that proposition. Mr Simms concluded that if the speed of the defendant's vehicle was more than 10 kilometres per hour, it was highly likely that the plaintiff's vehicle would have been moved forward. The extent of the damage to the defendant's vehicle as opposed to that to the plaintiff's vehicle was put to Mr Simms in cross‑examination. He said in answer:
"If you were to drive a relatively soft object like a van – I mean, it's a sheet metal structure – into a rigid immoveable barrier at 5 kilometres per hour you would do significant damage."
He said that he would expect, immediately after the collision, a space between the two vehicles because there would be some rebound by the defendant's vehicle. In this case there was no evidence of a rebound.
When considering the damage to the defendant's vehicle he said that he took two levels of penetration being 200 millimetres and 300 millimetres. The latter slightly increased the likely speed of the defendant's vehicle. He said that the defendant's vehicle could not have been travelling at 50 kilometres per hour because the damage to his vehicle at that speed would have been quite substantial.
Mr Simms explained in cross‑examination that he had been in touch with Toyota representatives who had advised him that the basic structure of the Toyota Dyna vehicle had not changed for about 20 years apart from cosmetic changes. It was clear that, unlike Mr Van Der Meer, Mr Simms had obtained from Toyota a cab and chassis drawing for a Toyota Dyna truck showing the position and shape of the leaf springs. He took into account the position and shape of those springs in his consideration of the impact of the collision upon the plaintiff's vehicle. He said that it was important to appreciate that in the case of a Toyota Dyna truck the leaf springs are essentially flat rather than semi‑elliptical. To that extent the link between the truck body and its tyres is a near horizontal straight bar. If it is struck from behind while stationary and under braking the truck body cannot itself move forward but only oscillate, that is, rock backwards and forwards about some point along its length. The exact position of that point is dependent, he said, on the geometry of the truck. If the force applied is at the level of the link (being the leaf springs) there would be no rocking of the truck. If the force is below the plane of the springs the tendency would be to lift the truck up at the front and sit it down at the back. If the line of force is above the plane of the leaf springs the tendency would be to rock the body of the truck forwards. Mr Simms said that in both cases the resultant motion would be a pure rocking motion which would mean that the driver's seat would describe a shallow arc in a purely up and down direction.
In the case of the two vehicles involved in the accident in question he thought that the impact point must have been relatively low down. He was aware that there was no readily visible damage to the truck other than minor scratching. He had seen a photo of the back of the truck. There was no apparent damage. He thought that the impact was probably at the height of the rear metal step. That was the only component of the truck which displayed any damage at all. On that basis, said Mr Simms, the point of impact must have been close to the level of the leaf springs. That being the case, he said that there would have been no rocking motion at all.
In his report of 5 October 2005 which became exhibit 17.1 Mr Simms concluded as follows:
"It is my opinion that the motions and forces imposed on a driver of the subject truck (which did not move) would be significantly less in a low speed rear end collision than in any of the following relatively common events:
(a)going over a speed hump in a shopping centre at walking speed;
(b)reversing into a loading dock buffer at low speed;
(c)driving over a culvert or ramped cross‑over of the type commonly found in depots and warehouses."
He was also of the opinion that in a low speed rear end collision with the defendant's vehicle travelling at approximately five kilometres per hour, running into the plaintiff's vehicle with its brakes applied, the plaintiff would barely feel the impact. He completely discounted the proposition that the speed of the impact was between 60 and 80 kilometres per hour, suggesting that at that speed there would have been very substantial damage to the defendant's vehicle and that the defendant would have almost certainly been seriously injured or killed. Finally, he said, the description of the damage to the defendant's vehicle was consistent with a relatively minor impact and was entirely inconsistent with an impact of even 20 kilometres per hour.
Towards the end of the trial the defendant was recalled, he having belatedly located some documentation relating to the repairs to his vehicle. He confirmed that his evidence to the effect that the vehicle was a Toyota Camry was wrong and that, upon reflection and consideration of the recently located documents, the vehicle was a 1995 Toyota Town Ace van. The documents produced were a quote numbered 0352 from "BB Smash Repairs" dated 6 June 2000 in a total sum of $3,520.75 (exhibit 15) and a receipted invoice for job number 1257 on the letter head of "BB Smash Repairs" dated 12 June 2000 (exhibit 16) for repairs as per the quote in a total sum of $2,920.75. The cost of repair to the air-conditioner had been discounted from the original quote because, as Mr Stockdale explained, he didn't want air-conditioning and never used it. It was not to be fixed.
In cross‑examination by counsel for the plaintiff the defendant said that he saw the plaintiff's vehicle when he was about 15 metres away from it and immediately braked. He skidded for those 15 metres, downhill. It was suggested to him that his vehicle wedged into the back of the plaintiff's vehicle. He replied:
"No, I wouldn't say wedged. It wasn't sufficient damage for me not to open the doors. I mean the doors opened – there was no damage to the doors if you look at the quote".
When asked if his vehicle lifted the plaintiff's vehicle, he replied that it was very doubtful that it did.
The plaintiff completed a crash report form which was submitted to the Insurance Commission of Western Australia and dated 8 June 2000. He described the date and time of the crash as being 31 May 2000 at 4.20 pm. As one would expect he said that he did not see the defendant's vehicle until after the collision when he got out of the cab of his own vehicle and went to inspect what had happened. He confirmed that his vehicle was stationary. In answer to questions concerning the speed of the defendant's vehicle before impact and on impact, he said "approximately 60 kilometres per hour" and "60 kilometres per hour", respectively. He said that it was raining at the time and that his windscreen wipers were operating. The road surface was wet. He reported an injury in the form of back pain.
The plaintiff has, since the motor vehicle accident, seen a number of medical practitioners. He was seen by Dr M J Kent, an anaesthetist and consultant in pain medicine, on 4 August 2000. He told Dr Kent that he had been involved in a significant rear end motor vehicle accident in which the vehicle which struck his vehicle was travelling at an estimated 60 to 80 kilometres per hour. He reported to Dr Kent that the force of the impact had lifted him in the seat and thrown him forward. The plaintiff saw Mr B S Slinger, a spinal surgeon, on 31 August 2001. He told Mr Slinger that his vehicle had been struck from behind by a one tonne van travelling at some 60 kilometres per hour and that at the time of impact he was lifted up from his seat. The plaintiff attended Dr David Lord, psychiatrist, on 11 June 2002 reporting that his vehicle had been struck from behind in May 2000 and that he was thrown forward as a result. The plaintiff was seen by Dr R J Warner, an occupational physician, on 25 September 2001. He told Dr Warner that his vehicle had been hit from behind by a van travelling at high velocity and that the van that hit him was extensively damaged. When he saw Mr P J Bath, an orthopaedic surgeon, on 6 December 2000 he told Mr Bath that his truck had been hit from behind by a van with enough impact to push the front of the van in some half a metre.
The reporting of the circumstances of the motor vehicle accident as described to various medical practitioners and to the Insurance Commission of Western Australia at the outset does tend to suggest a substantial degree of exaggeration on the part of the plaintiff, particularly with regard to his estimate of the speed of the defendant's vehicle. Putting aside the expert evidence for the moment, it is clear, on any assessment, that the plaintiff did not see the defendant's vehicle immediately prior to the collision. There was virtually no damage to his vehicle, and certainly not extensive damage to the defendant's vehicle. The plaintiff's vehicle, stationary on a wet road with the brakes on, did not move at the point of impact. The latter suggests a minor collision. The inability of the plaintiff to see the defendant's vehicle immediately prior to the collision and his persistent characterisation of the speed of that vehicle at 60 kilometres per hour or more, of the collision as being severe and of the damage to the defendant's vehicle as being extensive all suggest a willingness on the part of the plaintiff to exaggerate the circumstances of the accident.
Having regard to the expert evidence I am inclined to accept the opinions of Mr Simms over those of Mr Van Der Meer, particularly because Mr Simms took the care to make enquiries of Toyota, obtain diagrams of the cab and chassis of a Toyota Dyna vehicle, and relate those details to the information provided to him. Mr Van Der Meer's evidence tended to be more abstract and to the extent that Mr Simms is critical of some of the assumptions and conclusions drawn by Mr Van Der Meer, I am inclined to accept the opinions and conclusions of Mr Simms.
Finally, on the matter of the circumstances of the collision, I am inclined to accept the defendant as a reliable and truthful witness and, as such, accept his evidence as to the speed of his vehicle immediately prior to the collision and at the point of impact. It does seem likely however that, given that he applied his brakes some 15 metres away from the plaintiff's vehicle on a wet road and skidded into the plaintiff's vehicle, there would have been little variation in his speed over that distance. I do accept his evidence that he was travelling at 15 to 20 kilometres per hour, but closer to 15 kilometres per hour immediately prior to braking. I do not accept that he was able to reduce his speed by braking such that at the point of impact, his vehicle was travelling at five or six kilometres per hour. I find, as a matter of fact, that the speed of the defendant's vehicle at the point of impact was about nine kilometres per hour, drawing some support for that conclusion from Mr Simms' calculation that a 300 millimetre crush on the defendant's vehicle would give a theoretical impact speed of approximately nine kilometres per hour, and that, in his opinion any impact speed above 10 kilometres per hour would have caused the truck driven by the plaintiff to move forward upon impact.
The plaintiff's injuries
The plaintiff said that when he jumped out of his truck immediately after the collision he felt a "new pain" in his back and a "choking pain" around his lower back. Following an attendance at a police station to report the circumstances of the accident the plaintiff attended a general practitioner at the Spencer Road Medical Centre in Huntingdale. He was unable to see his usual general practitioner, Dr Leong. He saw another doctor at the practice who told him to take a few days off work and prescribed some medication. The plaintiff was unable to return to work. On 6 June 2000 he attended Dr Leong at the same clinic complaining of lower back pain. The plaintiff instructed Tydde & Co, solicitors, at some stage prior to mid September 2000. That firm requested a report from Dr Leong who wrote by letter of 14 September 2000 noting that he had first reviewed the plaintiff on 6 June 2000 who was then complaining of lower back pain. He noted that on examination the plaintiff had mild lower back pain with a good range of back movement and certified him unfit for work for four days. He was prescribed anti‑inflammatory medication and liniment. Dr Leong referred the plaintiff to Dr M J Kent, an anaesthetist and specialist in pain management, who reported to him on 4 August 2000 that the plaintiff had a normal range of movement of his lumbar spine, that his straight leg raising was restricted only by hamstring tightness and that there was no neurological abnormality in his lower limbs. An MRI scan of the lumbar spine showed discal disease at L4/5 and L5/S1 with an annular tear in the L5/S1 disc. Dr Kent concluded that the plaintiff's pain was associated with either the L4/5 or L5/S1 disc and suggested pain relief by way of a disc block at those levels. The plaintiff indicated his willingness to proceed. That procedure was undertaken by Dr Kent on 25 August 2000. The plaintiff said that the injections did not assist him in any way. He said that he underwent a further course of injections but again there was no relief from his pain.
By report of 16 November 2000 Dr Kent expressed the view that the plaintiff's pain was then likely due to the annular tear at L5/S1. He said:
"The mechanism of injury, his symptoms and the MRI findings are consistent. However I feel there is a disparity between his reported symptomatology and the findings on examination and his ability to perform non‑work related activity."
On referral from Dr Leong the plaintiff attended upon Mr B S Slinger, spinal surgeon, on 31 August 2001. He concluded that the plaintiff's diagnosis was that of soft tissue injury to the lumbar spine. The plaintiff attended upon Dr David Kennedy, a specialist in musculoskeletal medicine on 4 September 2001. He reported to Tydde & Co, the plaintiff's then solicitors, on 12 September 2001 expressing the opinion that the plaintiff's diagnosis was of a significant injury to the lumbar spine involving the myofascial structures, particularly the capsular and ligamentous structures supporting the lower lumbar and upper sacral intervertebral disc and posterior facet joints. By letter of 23 January 2003 Mr Soni Narula, neuro surgeon, reported to Tydde & Co that his diagnosis was of injury at L4/5 and L5/S1 levels, the former being in the form of a foraminal and posterolateral disc prolapse, while at the latter being the presence of an annular fissure.
The foregoing diagnoses are those of medical practitioners who were either treating the plaintiff for his injuries or reporting to the plaintiff or his solicitors for medico‑legal purposes.
The plaintiff, following notice of his intention to make a claim arising out of the motor vehicle accident, was referred by the defendant's insurers or their solicitors to various medical practitioners. Mr P J Bath, an orthopaedic surgeon, reported by letter of 14 December 2000 that his examination of the plaintiff revealed that there was generalised tenderness over the lumbar spine. He noted that a CT scan of 27 June 2000 reported a small postero‑lateral disc herniation at the L4/5 level which, he said, may be involving the right L4/5 nerve root. He noted that an MRI scan of 27 July 2000 confirmed disc pathology but commented that there was no convincing evidence of nerve root impingement. He again reported by letter of 29 July 2005 and, when asked as to a diagnosis, noted that there was some ongoing symptomatology with respect to mild degenerative changes in the lower lumbar spine. He said that the signs appeared to have varied to some extent, and cited, by way of example, tenderness elicited at the most recent examination being more in the thoracolumbar area than the lower lumbar area. Dr P J Graziotti, in a report of 22 July 2003 to the defendant's solicitors said that he had reviewed the plaintiff on that day. In summarising his findings he said:
"Mr Celenza has suffered a minor injury to the lower spine at the time of the accident. An MRI scan two months post‑injury reveals desiccation at two levels in his lumbar spine and this must have preceded his accident. Even had he experienced an acute right L4/5 disc protrusion at the time of the accident the degree of desiccation seen does not occur within a two month period. Thus, the majority of the underlying abnormality seen are pre‑existing although they were probably rendered symptomatic at the time of the accident, however."
He concluded that any injury which was suffered at the time of the accident should have resolved. Mr R V Jackson, a consultant orthopaedic surgeon, reported to Australian Casualty & Life Ltd on 2 December 2000 that he had interviewed and examined the plaintiff. His diagnosis was that the plaintiff had suffered a postero‑lateral disc prolapse at L4/5 level, adding that there was no evidence to suggest a facet joint condition. Dr John Rosenthal, a physician in rehabilitation medicine, reported to the defendant's solicitors by letter of 6 May 2003. He concluded that the plaintiff's back pain did not have a significant discogenic or facetal basis. Having explained his reason for that conclusion he said:
"This diagnostic interpretation is further reinforced by the fairly diffuse nature of his back pain involving the lower thoracic and upper lumbar segments and the objective clinical findings which in my opinion do not support his subjective level of disability."
Dr J H Silver, a consultant occupational physician, reported to the defendant's solicitors on 8 October 2003, having reviewed the plaintiff on that day. He expressed agreement with Drs Rosenthal and Graziotti which was confusing because it appeared to me that they themselves were not entirely in agreement. He concluded that the plaintiff's symptoms were entirely subjective, not related to the radiological findings and not representative of any demonstrable anatomical or physical abnormality. His view was that the plaintiff had suffered a "minimal if any significant back injury, although he may have had some minor soft tissue lumbar strain following the collision". He concluded that the radiological findings pre‑dated the collision.
It is clear from the foregoing that the CT scans conducted on 27 June 2000 revealed a small postero‑lateral disc herniation at L4/5 with possible compression of the right L4 nerve root. The L5/S1 disc space demonstrated a mild disc bulge but no nerve root compression could be seen. Facet joints were said to be within normal limits. An MRI of the lumbar spine dated 25 July 2000 disclosed a right sided postero‑lateral and foraminal disc protrusion at L4/5 level. At L5/S1 level there was a concentric posterior bulge in the right side of the annulus indicating a small annular tear. There was focal protrusion, no canal stenosis and no evidence of nerve root impingement. A further MRI scan on 27 March 2002 enabled a comparison with that carried out in 2000. The radiologist reported that at L4/5 level the previous right postero‑lateral disc protrusion had decreased in size and that there was almost no deformity of the dural sac then remaining. At the L5/S1 level the broad based degenerative postero‑annulus bulge had not increased in size. There were no significant changes in appearances at that level. The other lumbar and lower thoracic discs had a normal appearance. A further CT scan conducted on 9 May 2003 reported a moderate generalised posterior disc bulge at L4/5 level which appeared slightly more prominent by comparison with the previous CT scan. In addition there was an eccentric postero‑lateral right disc herniation at the level of the L4/5 exit foramen which might have been impinging on the exiting right L4 nerve root. At the L5/S1 level there was a bulge, more prominent postero‑laterally on the right side which could possibly have been impinging upon the exiting right L5 nerve root. Facet joints were said to be normal. A further MRI scan of the lumbar spine was conducted resulting in a report of 13 August 2003. That report indicated that there was a small right foraminal annulus tear at L4/5 with no significant change in the size of the very shallow right foraminal disc protrusion since the previous MRI scan. The report indicated that there was no impingement of the right exiting L4 nerve roots. At L5/S1 there was moderate reduction in disc height and nucleus desiccation. There was a tiny right para‑central annulus tear and a circumferential disc bulge with a shallow right foraminal disc protrusion. Again, there did not appear to be any neural compromise. The radiologist commented that there had been no significant change since the MRI scan of 27 March 2002. There did not appear to be any neural impingement at either the L4/5 or L5/S1 levels.
Dr M J Kent explained in his evidence that he had conducted a discography in hospital in an attempt to determine whether what was shown to exist at L4/5 and L5/S1 levels were actually symptomatic. He explained that such radiological findings are not necessarily associated with pain. The procedure undertaken by the doctor involves an injection of the suspect disc in order to increase intradiscal pressure in an attempt to reproduce the patient's pain. If that occurs, then the disc injected can be taken as the source of the pain. He said that the procedure was, itself, quite painful, usually requiring a small amount of sedation to bring about the patient's cooperation. In the case of the plaintiff the sedation used caused disinhibition, resulting in him becoming difficult to manage. As a consequence, more sedation was administered so that the procedure could be undertaken. That, said Dr Kent, was unfortunately counter‑productive in that it could affect the outcome of the procedure. He explained:
"You really need a patient who is alert and cooperative and who can tell you exactly what they're feeling. My record is that we couldn't reproduce Mr Celenza's pain on intradiscal injection but that the outcome had been influenced by the more than usual sedation that was required. So the interpretation of the discograph here was unfortunately problematical."
Even though the outcome of the procedure was inconclusive, Dr Kent thought that, on clinical grounds, the most likely source of the plaintiff's pain was the abnormality observed at L4/5.
Dr Kent saw the plaintiff most recently on 7 September 2005. He noted then that the plaintiff not only had lumbar pain but also mid thoracic back pain and thigh pain.
Under cross‑examination, Dr Kent indicated that he had administered both provocative injections in the form of a discography and anaesthetic injections at L4/5 with effectively no response to either. Notwithstanding that, he indicated that he still felt that the L4/5 level was the source of the pain because, as he said, the plaintiff complained of pain and he had a discal injury demonstrated on the x‑ray.
Dr Kent confirmed in cross‑examination that the plaintiff had told him that his vehicle, at the time of the accident, had been struck in the rear by a one tonne truck, probably travelling at 60 to 80 kilometres an hour and that he was lifted out of his seat on the impact and thrown forward. He was asked as to, in determining what caused the plaintiff's disc problems, the extent to which he would take into account the history provided. He replied:
"Completely. What other evidence would I have to go on?"
As to the plaintiff's mobility, Dr Kent said that he had always given every indication that he was normally mobile, noting that he walked and sat normally and that he gave a history of being able to exercise and generally comply with what was required of him so far as rehabilitation physiotherapy was concerned.
So far as the discography was concerned, Mr B S Slinger agreed with Dr Kent who he said was experienced in the procedure, that the procedure was, in the case of the plaintiff, inconclusive. When asked about the likelihood of the disc bulge having been present before the accident Mr Slinger said that it was difficult to tell because a disc bulge may be representative of a degenerative process. In his opinion, particularly because the two MRI scans showed an improvement in the disc bulge, that shown in the 2000 scan was most likely caused by the motor vehicle accident. Commonly, he said, a disc bulge reduces in size and goes back into place and, when it does, pressure on nerves is relieved and associated pain disappears. As to the right sided annular tear at L5/S1 level, all Mr Slinger could say was that it could have been present before the accident. He said that such tears were common and are a consequence of degeneration. Such tears can result from ordinary strenuous activity and might appear over a period of time or quite suddenly. In cross‑examination Mr Slinger confirmed that the plaintiff had told him that his vehicle had been struck by another vehicle travelling at about 60 kilometres per hour.
Further in cross‑examination, Mr Slinger indicated that:
"The problem in looking … the problem in looking at MRIs or CT scans is to know whether that disc bulge is recent or old and in this man that disc bulge could have been old but the thing that makes me consider it was recent or acute as caused by the accident was the fact that it resolved over a period of time – not resolved, it diminished in size, and that's why I'm saying that I think it is relevant to the accident plus of course he had physical signs as we have just discussed. But just looking at disc bulges by themselves in isolation, we can't tell usually unless there is reduction in size as happened and as I said, it's unusual to have several MRIs. We don't often have those in patients and secondly, as I mentioned, physical signs."
He accepted that in part his conclusion was predicated on the history given to him.
Dr P J Graziotti, a pain specialist, who has practised in the field for about 15 years was called by the defendant. He reached certain conclusions as a result of viewing the MRI scans taken in July 2001 and March 2002. He did so by reference to desiccation in the discs, the subject of MRI investigations. He explained that discs are filled with fluid and that, with time, they dry out. He said that desiccation was an age related phenomena which does not occur in a short period of time. Given that the first MRI scan took place some two months after the motor vehicle accident Dr Graziotti concluded that the revelation of desiccation suggests that the disc protrusion at L4/5 did not occur at the time of the accident, some two months prior to the first MRI scan. He noted that there was no MRI scan prior to the accident and that the one conducted some two months after the accident disclosed a disc protrusion. He went on to say:
"So then one has to weigh up all the evidence for and against that. Against that is the fact that an acute disc protrusion is usually a very painful incident which usually, if it's associated with quite a marked inflammatory reaction, then causes the person to be incapacitated for a period of time. Its usually associated with some leg pain as well rather than just back pain but it can be associated with just back pain. Okay? Yet Mr Celenza drove his truck on – I mean, his injury at the time of the injury, it wasn't a significant injury in terms that it wasn't a major blow to the back or anything like that. As it was explained to me by him, he was basically jolted in his seat and it would be very unusual for that degree of force to cause an acute disc injury."
He concluded that the disc protrusion was, at the time of the accident, in the process of resolving, and in fact, did resolve over the following two years. What the plaintiff described, he said, did not accord with what one would expect if he had suffered an acute disc protrusion at the time of the accident. He said:
"Often patients say at the time they felt a bit of a jolt but in the next couple of days it was really painful, and then they have two or three weeks of marked pain then the pain settles down sometime after that. That's the typical course of an acute disc protrusion."
When asked in cross‑examination as to his understanding of the degree of force involved in the collision he said that it wasn't a severe degree of force but rather a mild to moderate amount of force that was applied to the truck.
Reverting to the findings on the MRI scans Dr Graziotti commented about discal bulges and protrusions. He said that there can be a tear without protrusion but there could not be protrusion without a tear. Protrusion would normally be associated with pain whereas a bulge may not be. On the other hand, a protrusion causes an acute inflammatory response and swelling, which can impact upon a nearby nerve causing severe pain in the legs. A tear itself will not necessarily be painful. Dr Graziotti said that an investigation by MRI scan could not differentiate between an acute painful tear and a tear which had been present for several years without pain. He was adamant that the terms "bulge" and "protrusion" are not synonymous.
As to the subject of desiccation Dr Graziotti said in cross‑examination that he had looked at the MRI scans himself. He concluded that the absence of severe back pain immediately following the motor vehicle accident suggested that there was no protrusion at the time of the accident. Counsel for the plaintiff put to Dr Graziotti that the plaintiff had said to his general practitioner six days after the accident that he had mild pain that was increasing. Dr Graziotti replied that slow development of increasing pain was not consistent with an acute disc protrusion.
As to soft tissue injuries generally, Dr Graziotti expressed the view that pathologically soft tissue injuries always heal. His point was that the distinction to be drawn between pathology and symptoms was that while soft tissue injuries always heal complaints of pain may continue. He said that there might be a number of reasons why that might be so. He said:
"What happens is that there might be some consequence of that soft tissue injury which might be behavioural, it might be functional, it might be anatomical. There's all sorts of reasons why there might be some change as a result of a soft tissue injury which result in a patient continuing to complain of pain."
As to the plaintiff, Dr Graziotti remarked that the protrusion had healed by the time he saw him. Dr Graziotti's impression was not, in the case of the plaintiff, that an underlying degenerative condition had become symptomatic as a result of the motor vehicle accident. He said that in his opinion the plaintiff suffered, if anything, a minor injury to his lumbar spine, and that he had some back pain subsequently relating to underlying degenerative changes in his back. His view was that the plaintiff's back pain related to those underlying degenerative changes which were not affected by the accident. In his opinion whatever injury was suffered as a result of the accident should have settled down over a six week period.
The plaintiff's account of the consequences of the motor vehicle accident
At the time of the accident the plaintiff was working as a courier for a company called "Jetstyle Express" as a subcontract owner‑driver. He said that he was earning about $200 a day, being paid on an hourly rate which varied from about $19 per hour up to about $24 per hour. He worked from 3.30 am or 4 am to 5 pm on Mondays and Fridays. On Wednesdays he worked until 2 pm or 2.30 pm, taking the afternoon off to play golf. His plan at the time was to buy another vehicle within one or two years, employ a driver on wages so that effectively he would operate two trucks on a subcontract basis for the courier company.
The plaintiff said that following the motor vehicle accident on 31 May 2000 he was unable to return to work as a courier driver. He said that he advertised for a driver to drive his truck during his period of incapacity but was unsuccessful. He eventually sold the vehicle.
Dr Leong arranged for x‑rays of the plaintiff's back, recommended physiotherapy and referred him to Dr Kent, the pain specialist. The latter, the plaintiff said, recommended injections for pain relief. He had those. They did not assist. There was a second round of injections which were also of no assistance. Dr Leong referred the plaintiff to psychiatric counselling and hydrotherapy. None of the treatment recommended to him assisted. He only participated in hydrotherapy on a couple of occasions. Eventually Dr Leong cancelled physiotherapy. Later, Dr Kent referred him to another physiotherapist, Mr Elvey. He recommended a complete exercise programme. In accordance with that recommendation the plaintiff attended at a gymnasium at Thornlie. He attended two or three times a week building up to almost daily attendance. By the end of 2000 no progress had been made. Dr Leong referred the plaintiff to counselling and prescribed analgesic medication at the plaintiff's request. The counsellor involved was one Glenis Nicholas, a clinical psychologist. He continued to see her for a long time. When asked why it was necessary he replied: "To help me cope with my situation". When asked about that situation he said that he was suffering from anxiety, from pains in his stomach, that he felt nervous, was given to shaking and having sleepless nights. The plaintiff described Glenis Nicholas as "very good" saying that she gave him a lot of ideas on how to cope with his problems. At her suggestion he began a programme of breathing exercises, relaxation and writing down his problems.
When asked as to current medication the plaintiff said that he was taking a pain‑killer called Tramal twice a day. He said that it controlled the pain suffered by him and that, if he ceased that medication, the pain was magnified immediately. He said he was taking Cipramil once a day for depression. When asked to describe that he said:
"It's about feeling down, lost, not sure of the future, anxiety, which is the stomach thing, nervousness and not knowing what's going to come of yourself. That's the biggest worry."
When asked whether Cipramil was effective he said that since taking that medication he had been very balanced and had only suffered small lapses of depression. He had not attempted to do without it.
In August or September 2004 the plaintiff approached Centrelink and was referred to an employment agency. He undertook a course called "Keys to Employment" which involved computers, the internet, letter writing, English, mathematics, interview techniques, motivation and job application, over a period of three months. That course was completed in January 2005. Just prior to the completion of the course in January, the plaintiff obtained work with a company called International Communication Plaza. He said that he offered to work without pay and did so between 20 January and 16 February 2005, working about three hours a day, undertaking general duties, telephone work, filing, dealing with documents and serving at the counter. When asked how he coped in the light of his pain he said:
"That's why I worked for two or three hours a day, because after that I can't cope with the result, which is that the pain gets worse and I have to lie down and rest."
He said that he was asked to work too much, being given too much responsibility and longer hours. As a result he was unable to cope. The job came to an end.
The plaintiff said that at the same time he was applying for another job and found one as a coffee shop assistant in Garden City Shopping Centre at Booragoon. He worked a couple of trial shifts and was paid for a couple of shifts, each shift lasting three to three and a half hours. He was told by the proprietor that the business had been sold and that he was no longer required. After that, said the plaintiff, he applied for jobs and eventually was successful. That was a two week contract in July, the position being that of international student co‑ordinator for a visiting Japanese school group. His job was to interview all host families and place the students with families. There was a good deal of preparatory work before the actual two week period began. Following that period he was obliged to write a couple of reports. That job was effectively finished on 12 August 2005. He said that he earned $67 from the job at the coffee shop and recovered about $2,000 pay and $1,000 reimbursement for the temporary job involving the Japanese students.
Shortly before trial, the plaintiff obtained another unpaid job in a security business which required him to handle security stock like torches, batteries, uniforms, shoes and boots, to pack them up, to catalogue them on computer and put them into storage. Again he was working three hours per day commenting that if he was to work any longer his pain would prevent work at all.
On the subject of recreation, the plaintiff said that he no longer played golf. He walks his dog twice a day but can only do so because of his medication.
So far as housework was concerned, he said that the most difficult activities were those involving repetition. Dishwashing or anything done over a long period of time causes his back to "lock". He also has difficulty with vacuuming and cleaning. He has had, in the past, the assistance of a very good friend whose parents attended to all his gardening needs. That ceased when the plaintiff sold his home in December 2003. Thereafter, he went to live with his parents. He was no longer required to do any housework. He remained with them from February 2004 until March or April of 2005 when, under a special scheme, he moved into a Homes West apartment in Fremantle. More recently he has moved to a one bedroom duplex in Coolbellup and lives there with his fiancé who now does most of the cleaning.
In cross‑examination the plaintiff said that he could not remember precisely when he sold his truck but that it could have been as early as July 2000. He sold it because he was told by doctors that he could not return to that work. When asked who told him, he replied that a physiotherapist, Mr Meredith, had told him. He accepted that Dr Kent had suggested light courier driving would be appropriate. It seems clear that the plaintiff decided as early as July 2000 that he would sell the truck. The plaintiff admitted, under cross‑examination, that at the time of the motor vehicle accident he had the benefit of an insurance policy with Australian Casualty & Life Ltd, and that, following the accident, he applied for benefits under that policy. It appears that he received about $42,000 per annum and that he paid no tax on that income for the years ended 30 June 2001, 2002 and 2003. The payments continued until December 2003.
On 28 April 2004 the plaintiff made a claim at Centrelink, Fremantle for a disability support pension. In that document (exhibit 7) he described his accommodation as being a sleep‑out in his parent's home. When asked to list his disabilities the plaintiff said: "Lower and upper back injury, lower right leg, use of leg". Those disabilities, he said, began in May 2000. He said that he could not sit, stand, walk, drive a car or use public transport without difficulty, explaining that he had constant pain in the lower back which was still present even while on pain‑killers. He said that his pain always made it difficult for him to lift, carry, bend and attend work or other appointments. It often made it difficult for him to operate everyday appliances, interact with others, sleep and manage his own personal affairs. It sometimes made it difficult for him to read, write, speak, hear, concentrate, remember, understand or follow instructions and care for himself. The only area where the plaintiff had no difficulty as a result of his injury was breathing.
He was unsure as to when he would be able to do any full‑time work or be trained for full‑time work and did not know when he would be able to work part‑time. He said that he was unable to study for 15 hours or more per week. When asked if he thought that he would need support to be able to work, he said that he could not work because of his pain. He was unsure whether he could do a vocational rehabilitation programme, work experience or volunteer activity, undertake literary/numeracy support and other assistance such as career advice, counselling and work preparation. In the application form the plaintiff explained that he was financially dependent upon and being cared for by his parents as he had nowhere to stay. He said:
"I've lost my job, truck and business and in December 2003 I was forced to sell my house to pay for myself. The money has all run out. I now need your help".
Under cross‑examination the plaintiff admitted that he collects antiques as a hobby.
The plaintiff said, in evidence, that he felt a lot better than he did when he completed the application for a disability support pension.
In the course of cross‑examination, the plaintiff was shown a video‑tape being film taken of him covertly, between 3 December 2001 and 31 December 2001. He agreed that the film depicted him going for long walks with his dog on a daily basis and cycling long distances. He agreed that he was swimming at that time up to two and a half kilometres a day. He was able to complete one hundred 25 metre laps within an hour. He also exercised in a gym on most days for an hour. The plaintiff agreed with counsel for the defendant that the video film generally showed him moving freely. But, he said, the pain was constant and had been since May 2000.
In total, the plaintiff was shown two video tapes, both taken covertly, the first covering the period 3 December 2001 to 31 December 2001 and the second covering the period 6 March 2002 to 26 July 2002. They became exhibits 9 and 10, respectively.
In cross‑examination, the plaintiff told counsel for the defendant that he had always suffered both low back pain and upper back pain as a result of the motor vehicle accident. He pointed to an area just below the shoulder blade. He said that he, sometime after the accident, reported to Dr Leong pain in the lower right leg. So far as the upper back pain was concerned, the plaintiff said that he must have told his doctors about that pain, explaining that they may not have written that down or included it in their reports. He said that he told his physiotherapist and was treated by him for upper back pain.
The treating doctor's report provided to Centrelink by the plaintiff was completed by Dr Leong on 14 May 2004. It became exhibit 11. As to the condition suffered by the plaintiff, Dr Leong noted that the diagnosis was "chronic back pain" the date of onset being 31 May 2000. As to the history Dr Leong wrote:
"Moderate severe chronic lower back pain following motor vehicle accident MRI scan L4/L5/S1 disc prolapse".
He described the plaintiff's current symptoms as "chronic lower back pains". His current treatment was then analgesic medication and counselling. Dr Leong described a second condition being diagnosed as "depression/anxiety" mentioning a history of "low moods". Dr Leong said that the condition affected the plaintiff's ability to function by making it difficult to concentrate and causing him to be drowsy at times.
In his evidence, Dr Leong said that he had assisted the plaintiff to fill out a claim form for his income replacement insurance policy on 7 June 2000. He also assisted him with his Centrelink application on 14 May 2004. To his knowledge there was no complaint of radiation of pain of any kind. His initial observation was that the plaintiff had mild pain and a full range of movement. In re‑examination, Dr Leong said, referring to his notes, that the plaintiff complained of pains in his right leg on 17 October 2003. When asked whether he was aware of any symptoms on the right leg on other occasions throughout the regime of treatment, he said that he was not.
Psychological and psychiatric treatment and assessments
The plaintiff was referred by his general practitioner, Dr Leong, to Glenis Nicholas, a clinical psychologist, to assist him in coming to terms with the consequences of his motor vehicle accident on 31 May 2000. She first saw the plaintiff on 1 December of that year and began a course of treatment. On 21 February 2001 she reported that the plaintiff had told her that he had been left with severe chronic pain and was unable to work as a result of the accident. She reported that he had made efforts to retain fitness, swimming up to 100 laps per day and attending a gymnasium for an hour each day. He was, when she first saw him: "In a very distressed state." He had, she said, been told three times very recently by his specialist that if he expected his pain to go away he could be very disappointed. The plaintiff interpreted that advice to mean that he had permanent pain and, according to Ms Nicholas, was very shocked by the "sudden news". He had, as a consequence, lost his motivation for swimming and felt that his life was shattered. The plaintiff told Ms Nicholas that he could only drive for about five minutes before the pain made it impossible for him to continue and that he felt defeated, trapped and that no‑one believed him.
I infer that the source of the black "sudden news" was Dr Kent. He had reported to Dr Leong on 30 November 2000 as follows:
"He is actually doing very well with exercise and strength training. He is now six months post injury and I think, although not pain free, he should be seriously encouraged to seek rehabilitation and a return to work trial. To this end he has already approached two rehabilitation providers and I understand some definitive action will be taken in the next week. I think Anthony has to understand that although his symptoms should decrease with time there is no guarantee that he will have 100 per cent pain relief. This is probably unrealistic and he should not defer his rehabilitation until he is completely pain free. He is capable of significant physical exertion in the course of his exercise and I think some of this can translate to the work place."
In cross‑examination Dr Kent said, in his opinion, the most likely outcome was a progressive resolution of the plaintiff's problems. He had, by the time of the letter just referred to, discharged the plaintiff from further treatment. He agreed that, as the treating specialist, he would have, at that time, imparted some degree of optimism to the plaintiff.
Ms Nicholas reported by letter of 10 September 2001 to Dr Kent as follows:
"He tried hard to do whatever was asked of him, but his back – and job prospects – did not seem much improved. This situation was psychologically intolerable for him. He became frustrated, angry, depressed and suffered a great deal of grief as all his achievements and prospects crumbled around him. It was also intolerable for him to find himself under suspicion, as if he had chosen to give up a successful business and choose all the losses he was experiencing. He has been dependent on his strength and strong back. Now he is afraid of making his injury (and pain) worse. His other main difficulty is dealing with a very uncertain time‑frame, again outside his control."
About one month earlier Mr Barry Slinger, having examined the plaintiff, concluded that he was fit to return to work of a light nature which work might include that of a courier driver, storeman on light duties, retail sales or console operator. In a report of 24 October 2001 Dr Kent noted that there were obvious inconsistencies as between the plaintiff's subjective symptoms and his own objective findings. He thought that psychological factors were predominant. They were being addressed, he said, by Ms Nicholas. He expressed the view that the plaintiff was capable of returning to his pre‑crash employment as a trucking sub‑contractor provided that there was no lifting involved.
By letter of 29 July 2002 Ms Nicholas reported to Australian Casualty & Life Ltd that when the plaintiff's income protection payments were regular and predictable he felt he could cope. She said:
"He was very cheered up at the end of April when he received a letter from Australian Casualty & Life which he felt set things out clearly and he could see where he stood. I did not hear from him again until earlier this month when he wrote to me because he was very upset at his claim going wrong again."
She said that she understood that the plaintiff's return to work was dependent upon his physical, rather than his mental condition.
In evidence Ms Nicholas said that she saw the plaintiff on 40 occasions the last session being on 18 March 2004.
Dr David Lord, psychiatrist, saw the plaintiff at his rooms on 11 June 2002. The plaintiff told him that he had, in a motor vehicle accident, been thrown forward and developed pain in his lower back. Mr Celenza complained to him that he had been experiencing great difficulty in negotiating with his insurers. More recently he had been encouraged by his perception of a more supportive position on the part of the insurer. The insurer referred to in that report must be Australian Casualty & Life Ltd. The plaintiff told Dr Lord that he was continuing to experience low back pain which had remained the same for 25 months. Dr Lord thought that the plaintiff was making, from a psychological point of view, some forward progress. He had, according to Dr Lord, suffered a psychological reaction to stress or trauma in the form of an adjustment disorder with associated mood disturbance. That had interfered with his social and occupational functioning. Dr Lord said that the plaintiff's prognosis was satisfactory from a psychiatric perspective.
At the request of the Insurance Commission of Western Australian the plaintiff was seen by Dr S D Febbo, a consultant psychiatrist, on 31 October and 13 November 2001. Dr Febbo reported to the Commission by letter of 18 February 2002. In that report Dr Febbo noted that the plaintiff had reported stress related to aspects of his treatment, in particular an injection in around September 2000 and considerable stress related to the compensation/litigation process, in particular dealing with Australian Casualty & Life Ltd. He said there was considerable financial stress because of difficulty in obtaining funds from his income protection insurance. Dr Febbo noted that, at the time of his interviews with the plaintiff, there had been considerable improvement in the plaintiff's mental state and that there were few residual depressive symptoms such as lethargy and continuing difficulties in relation to self‑esteem and self‑confidence. He thought that the plaintiff's depression had been appropriately treated. He concluded that the plaintiff's residual depressive symptoms were not of a nature that would be likely to interfere with his social or occupational functioning. Dr Febbo expressed the view that the compensation/litigation process and financial stress associated with it would, in all probability, have had a significant negative impact upon the plaintiff's mental state. He confirmed that the plaintiff was not suffering from any psychiatric condition and that his dealings with Australian Casualty & Life Ltd had significantly contributed to the earlier deterioration of the plaintiff's mental state. He thought it would be appropriate for the plaintiff to remain on anti‑depressant medication for a further 6‑12 months. He expressed the view that the plaintiff's prognosis from a psychiatric point of view was "very much positive".
The plaintiff's financial circumstances both before and after the motor vehicle accident
In the year ended 30 June 1996, according to the plaintiff's tax return the plaintiff generated gross business income of $69,974 as a courier driver. His taxable income for that year was $30,745. He had the benefit, in that year, of a negatively geared rental property which produced a loss, for taxation purposes, of $5,363.
In the year ended 30 June 1997 the plaintiff generated, as a courier driver, total business income of $75,361. After including a loss of $3, 429 from the negatively geared property he declared a taxable income of $41,713.
In the year ended 30 June 1998 the plaintiff generated gross business income from courier driving of $53,777 and additional gross income from work with "The Mattress Renovators" in the sum of $5,178. After including a loss of $1,444 from the negatively geared property the plaintiff declared a taxable income of $30,773.
In the year ended 30 June 1999 the plaintiff's situation changed considerably. He declared wages or salary income from The Mattress Renovators, Henry Walker Contracting Pty Ltd, Reef Contract Cleaning and Staff Link (WA) Pty Ltd. There appears to be very little income, if any, generated from courier driving as a self‑employed sub‑contractor in that year. The plaintiff declared a total taxable income of $23,716 which included, again, a loss from the negatively geared rental property.
In the year ended 30 June 2000, the year of the motor vehicle accident, the plaintiff declared salary or wages income from Reef Contracting Cleaning and Staff Link (WA) Pty Ltd in the sum of $5,590. In addition the plaintiff generated income from his courier business in a gross amount of $36,338. After deducting the loss from the negatively geared property at Gosnells the plaintiff declared a taxable income of $26,283.
The plaintiff did not file an income tax return for the years ended 30 June 2001, 2002 and 2003.
His income tax return for the year ended 30 June 2004 indicated a taxable income of $29. His income tax return for the year ended 30 June 2005 indicated that the plaintiff's occupation in his main source of salary or wage income was that of tourist guide. He declared income in that regard of $100, other income of $667 and Australian Government allowances and payments of $9,674. The latter was described as a Newstart allowance.
On 14 September 2000 Dr Leong reported to the plaintiff's solicitors that he was then continuing to suffer mild to moderate lower back pain when he was last reviewed on 31 July 2000, some two months after the accident. Four months later Dr Kent was encouraging a return to work suggesting that he should avoid occupations and activities that might exacerbate his pain. Nine months after that Mr Slinger considered the plaintiff fit to return to work of a light nature avoiding any heavy lifting or repetitive bending. As mentioned, he considered that such work might include courier driving, storeman, retail sales or console operator. Despite those opinions when asked by his counsel whether he had tried to obtain any different work and what he had done in that regard since the motor vehicle accident he replied: "I first went to Centrelink for help and they referred me to an employment agency." When asked when that was he replied August or September 2004. When asked what his income had been from the date of the accident and prior to receipt of a disability support pension he said that he had his insurance benefit being the payments pursuant to the policy with Australian Casualty & Life Ltd. That continued at the rate of about $3,500 per month until December 2003. It seems that in the intervening period the plaintiff had sold his Toyota Dyna truck and his rental property at Gosnells. There was no evidence as to the proceeds of the sale of those properties. As mentioned, the application to Centrelink was made on 28 April 2004. Effectively, since 31 May 2000, a period of some five and a half years the plaintiff has made only belated, brief and seemingly half‑hearted attempts to return to the workforce in the period of 12 months prior to the trial.
I find that, following the accident, the plaintiff moved quite quickly to sell his Toyota Dyna truck and make claim on his income protection policy with Australian Casualty & Life Ltd. About one week after the accident the plaintiff told the Insurance Commission of Western Australia that the defendant's vehicle had been travelling at 60 kilometres per hour at the time of impact. I conclude that, at that time, he grossly overstated the speed of the defendant's vehicle. An honest answer to that question in the "crash report form" relating to the speed of the other vehicle before impact and on impact would have been that he was unable to say what it was. The plaintiff's information to Dr Kent just over two months after the accident to the effect that his vehicle had been struck by a one tonne truck probably travelling at between 60 and 80 kilometres per hour and that he had been, by the impact, lifted out of his seat and thrown forward was similarly misleading. As mentioned, when the plaintiff attended upon Mr Slinger some 15 months after the accident he gave a history of having been struck from behind by a one tonne van travelling at some 60 kilometres per hour and that, at the time of impact, he was lifted up from the seat. I find that the plaintiff misinformed not only his treating medical practitioners but also those upon whom he attended for medico/legal purposes to varying degrees as to the speed of the defendant's vehicle at the time of impact, as to the severity of the impact and as to the effect of the impact upon him seated in the driver's seat of his own vehicle.
Generally speaking, the plaintiff has been reported by various practitioners, upon examination, to have had a good range of movement. Diagnosticians necessarily rely upon the information imparted to them by the patient for the purpose of making a diagnosis. The speed of the colliding vehicle at the point of impact and the circumstances of the accident generally is obviously relevant information. As Mr Slinger said in his examination‑in‑chief:
"With a 60 kilometre collision as you have described I would be surprised if you didn't have some symptoms."
He went on to say that it was probable that the plaintiff would have sustained injuries in the motor vehicle accident to his spine. Mr Slinger was of the view that for there to be an injury there had to be some movement of the spine. For the spine to move the vehicle must move. He said that you would expect that the plaintiff's vehicle would move if struck from behind by a vehicle travelling at 60 kilometres per hour. Counsel for the defendant asked: "On that basis you could postulate that that's the explanation for this man's injury?". Mr Slinger replied: "Yes. He stayed still. The vehicle moved forwards and struck him in the back." Counsel for the defendant put to the defendant that if the vehicle in which the plaintiff was seated did not move the likelihood of injury would be low. Mr Slinger replied: "low but not impossible." I said to him: "If you are sitting in the vehicle and the vehicle doesn't move at all, then presumably there's no reason why you would move other than voluntarily would that be the case?" He replied: "Yes, I must say I hadn't thought about it. I guess if the vehicle doesn't move at all – yes I suppose you wouldn't move, I guess. I'm not an engineer but I think that sounds reasonable."
It is apparent from the foregoing that the plaintiff's description of what had happened to him at the time of the impact and the circumstances of the collision did colour Mr Slinger's opinion of the injury suffered by him.
Of all of the medical practitioners who have examined and reported on the plaintiff's condition I conclude that Dr P J Graziotti was the most accurately informed in terms of the history provided. He was told that the force of the collision was such as to move the plaintiff in his seat although the plaintiff's vehicle did not move. Under cross‑examination by counsel for the plaintiff he said that his understanding was that there was not a severe degree of force involved but rather a mild to moderate amount of force applied to the plaintiff's truck. He was not provided with any information as to the damage to the defendant's vehicle.
Given the degree of misinformation imparted by the plaintiff to various medical practitioners and the impact of that misinformation on the formulation of those practitioners' opinions I am drawn to the opinions of Dr Graziotti not only because he appears to have been provided with more accurate information than were other practitioners but also because his analysis of the objective MRI findings seemed to me to be the most thoughtful and compelling expert medical evidence as to the plaintiff's spinal injury. I therefore conclude, as he did, that the disc protrusion at L4/5 did not occur at the time of the accident. So far as the annular tear at L5/S1 is concerned Dr Graziotti said that an acute annular tear was normally quite painful. The plaintiff's circumstances immediately after the accident were not consistent with an acute annular tear. Dr Graziotti, in that regard, agreed with Dr Slinger who said, with respect to the L5/S1 tear, that it could have been present before the accident and could have occurred after the accident. He said:
"Annular tears are common and the discs, your Honour, we go through life, we develop tears in these discs which radiate out from the centre and its through those tears that the disc material bulges and produces the disc tear."
Those tears, he said, are usually the consequence of degeneration. A disc tear could develop from ordinary everyday activity such as bending over, coughing, sneezing, lifting or for no obvious reason.
In summary, I find that the attempts made by Dr Kent at objective diagnosis by way of provocative injection proved inconclusive. So far as the plaintiff's treating general practitioner was concerned I find that he was prepared to be relatively compliant with the plaintiff's wishes and too readily accepting of the plaintiff's complaints. As discussed, there is a degree to which the expert evidence of Mr Slinger has been compromised, firstly, by the information provided to him by the plaintiff and, secondly, by his misunderstanding of the dynamics of the collision. As just mentioned, his evidence did tend to support the evidence of Dr Graziotti as to the likely significance and origin of the annular tear at L5/S1. I am not persuaded on the balance of probabilities that either the disc protrusion at L4/5 or the annular tear at L5/S1 occurred in acute circumstances at the time of the collision on 31 May 2000.
It follows from the foregoing that my conclusion is that at the time of that collision the plaintiff suffered a mild soft tissue injury to his lumbar spine which was productive of some pain. Having regard to the evidence of Dr Graziotti as to the natural course of healing of soft tissue injuries and to my substantial misgivings as to the plaintiff's claims of continuing pain I find that the plaintiff's injury and pain associated with it would have resolved over a period of six months.
The opinion generally expressed by medical practitioners since 31 May 2000 has been that the plaintiff has demonstrated full freedom of movement. The video surveillance film taken of him certainly confirmed that at the time of that filming he was able to move freely. From an early stage the plaintiff was capable of quite strenuous exercise. His activities and abilities are quite inconsistent with his complete lack of any attempt to return to the workforce. The plaintiff has had an impact on the views of others who have treated him, in particular, Ms Glenis Nicholas, a clinical psychologist. Her descriptions of his circumstances are quite florid having regard to the whole of the evidence. For example, in her report of 10 September 2001 she expressed the opinion that the plaintiff was:
"a highly motivated and very driven young man who has suffered an accident which has made it impossible for him to continue in his business and has left him with continuing physical pain … refusal to accept defeat and determination to overcome difficult odds have been an important element in his business success, but he now needs to learn coping skills which include acceptance of the realities of his changed situation. He is finding this very difficult."
I do not accept that description as being an accurate characterisation of the plaintiff's circumstances subsequent to the accident of 31 May 2000. Quite to the contrary, my impression of the plaintiff's circumstances is that he was organising his affairs with no intention of returning to his former occupation of courier driving or, for that matter, to the workforce in general. The plaintiff has had substantial experience in real estate. On any assessment other than his own and perhaps that of Ms Nicholas, he could have, it seems to me, returned to the workforce in a number of capacities including as a real estate sales representative. He, despite his experience in that industry, made no attempt to do so. As mentioned already, such attempts as he did make to return to the workforce were belated and half‑hearted. My assessment is that they would not have been made at all had it not been for the prospect of an impending trial. To the extent that the plaintiff has suffered from a condition approaching depression or, as Dr David Lord described, an adjustment disorder, I conclude that his stress and anxiety giving rise to those diagnoses were the result of difficulties being experienced by the plaintiff at the hands of Australian Casualty & Life Ltd and because of the concern on his part that he might be the subject of surveillance. Indeed, as has been mentioned, the plaintiff was said to be much relieved when the problems with Australian Casualty & Life Ltd were resolved.
On the pleadings, there is an admission of negligence on the part of the defendant. The plaintiff is not entitled to recover damages for loss of earning capacity unless he establishes that his earning capacity has in fact been diminished by reason of the negligence‑caused injury. In terms of the negligence‑caused injury I have found that the plaintiff suffered a relatively minor soft tissue injury of the lumbar spine. In terms of the plaintiff's depression or adjustment disorder I am not persuaded that the requisite causal connection between the defendant's negligence and the onset of those problems has been established. Such a connection is essentially one of fact to be resolved, on the probabilities, as a matter of common sense and experience. (March v E & M H Stramare Pty Ltd & Anor (1991) 171 CLR 506). The plaintiff first saw Glenis Nicholas on 1 December 2000, that being the first of 40 attendances over a lengthy period. In accordance with my findings by the time of his first attendance the plaintiff's soft tissue injury would have healed and any associated pain resolved. He told Ms Nicholas that he was suffering severe chronic pain and that it was his understanding that he would have severe chronic pain for life. In the light of the evidence of Dr Kent I conclude that the plaintiff deliberately misled Ms Nicholas as to the information provided to him by his treating specialist about his prospects so far as his pain was concerned. At one of his earlier attendances upon Ms Nicholas he told her that he could only drive for about five minutes before the pain made it impossible for him to continue. I regard that statement as being another example of deliberate misinformation on his part. Her reports seem highly dramatised. In that regard, it seems to me, they reflect a picture painted for her by the plaintiff which was false.
Assessment of damages
The plaintiff is to be compensated for his loss of earning capacity. That should be judged by reference to his loss of earnings. If I assume that the plaintiff, but for the accident, would have continued as a sub‑contract courier driver using his Toyota Dyna truck I should have regard to his income from that source during the year ended 30 June 2000. He was, by reason of the accident, deprived of the final month of income for that year. His income generated from his courier business in that year was a gross amount of $36,338 which might be averaged over 11 months resulting in an amount of $3,305 per month. At that rate of income he would have generated gross earnings from his courier business for a period of six months from 31 May 2000 in the sum of $19,821. In the years ended 30 June 1996 and 30 June 1997 the plaintiff's taxable income was 44 per cent and 55 per cent, respectively, of his gross earnings from his work as a courier driver. In the year ended 30 June 1998 he generated gross business income from courier driving of $53,777 plus an amount of $5,178 derived from work with "The Mattress Renovators". He declared taxable income in that year represented 52 per cent of his gross earnings.
If I assume that, for the six month period under consideration, the plaintiff would have generated a net income being 55 per cent of his gross income he would have generated a net income before tax of $10,900. Having regard to the plaintiff's motor vehicle expenses for his truck as set out at p 12 of his tax return for the year ended 30 June 2000 I note that I should make an adjustment in respect of depreciation as, although that is claimed in that year at $3,075, that was an expense not actually paid. I should therefore increase the plaintiff's actual net income before tax by an amount of $1,500 to allow for that component. The amount of tax payable on $10,900 in the year ended 30 June 2001 was $833. His net income after tax for the period of six months from 31 May 2000 I assess, therefore, to be $11,567.
So far as past loss of superannuation is concerned the relevant percentage for the year ended 30 June 2001 was eight per cent. The payment received by the plaintiff's employers in his courier business was a flat $200 per day at the time of the motor vehicle accident. Mr Brosnahan, a supervisor with Jet Style Express, was called by the defendant. He gave evidence that the current rate if $265 per day. If I allow for an increase to say $220 per day beginning on 1 July 2000 I calculate that the gross payments received from Jet Style Express for the six month period from 31 October 2000 would be an amount of $28,200 based on a five day working week. Eight per cent of that is $2,256. If I reduce that by one third to accommodate costs, tax and the like (Jongen v CSR Ltd & Anor (1992) Aust Torts Rep 81‑192) I arrive at a figure of $1,504 being past loss of superannuation.
Given the receipt of benefits by way of income replacement insurance from Australian Casualty & Life Ltd I do not propose, in the exercise of my discretion, to make any award for interest on past economic loss.
So far as general damages are concerned, for the plaintiff's pain, suffering and loss of amenities resultant upon the motor vehicle accident of 31 May 2000 I should make my assessment on the basis of the onset of mild lower back pain gradually resolving over a six month period. In that six month period the plaintiff went through a number of investigations including an x‑ray of his lumbar spine on 8 June 2000, a CT scan of his lumbar spine on 27 June 2000, an MRI scan of his lumbar spine on 25 July 2000 and disc block and facet block procedures carried out by Dr Kent in August and November 2000. The plaintiff, of course, continued to complain of persistent low back pain. In addition, in 2003 he complained of right leg pain. In August 2004 he complained to Dr John Rosenthal of right hip and thigh pain. On 26 October 2004, when reviewed by Mr Slinger, he complained of pain in the posterior aspect of the right thigh being, he said, a ham‑string tear initiated by straight leg raising as a result of numerous examinations conducted by medical practitioners. That claim seems to have been discounted by expert medical opinion and is, likewise, discounted by me. There was, as mentioned, also later complaint of upper spinal pain with the plaintiff indicating, in the witness box, the area of his scapular. These various complaints of pain other than his initial complaints of mild low back pain are, in my view, unreliable and not supported by any pathology. Even if they were pain actually suffered I would not regard them as being causally related to the defendant's negligence. Having regard to my assessment of the plaintiff's veracity generally I do not accept his evidence of chronic severe pain continuing to the present day. He should be compensated for his pain and suffering for that which was endured in the six month period following the motor vehicle accident. The assessment of damages for the plaintiff's non‑pecuniary loss is governed by the provisions of s 3C of the Motor Vehicle (Third Party Insurance) Act 1943. That section requires that I award damages as a proportion, determined according to the severity of the non‑pecuniary loss, of the maximum amount that may be awarded (currently $268,000). Having regard to the plaintiff's injuries, the extent of his pain and suffering, and the impact of those symptoms upon him and his enjoyment of life I consider that an appropriate proportion of the most extreme case would be seven and a half per cent or $20,100. From that amount should be deducted Amount B being $13,500 resulting in an amount payable of $6,600.
I am prepared to allow a global amount of $500 for the cost of medication, treatment and physiotherapy in that period.
In the light of the above the plaintiff is entitled to recover damages in a total sum of $20,171 made up as follows:
Past loss of earnings $11,567
Past loss of superannuation $ 1,504
Cost of medication, physiotherapy $ 500
General damages $ 6,600
$20,171