Cox v Crooks
[1999] TASSC 152
•23 December 1999
[1999] TASSC 152
CITATION: Cox v Crooks [1999] TASSC 152
PARTIES: COX, Brian James
v
CROOKS, Steven Richard
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: Original
FILE NO/S: 121/1994
DELIVERED ON: 23 December 1999
DELIVERED AT: Hobart
HEARING DATES: 11 - 13 October 1999
JUDGMENT OF: Underwood J
CATCHWORDS:
Torts - Negligence - Essentials of action for negligence - Damage - Causation - Generally - What event causally responsible for whiplash injury.
Aust Dig Torts [59]
Damages - Particular awards of general damages - Tasmania - Total loss of sense of smell and taste - Minor back injury - Substantially general damages only - Global figure of $50,000.
Aust Dig Damages [61]
REPRESENTATION:
Counsel:
Plaintiff: G L Jones
Defendant: C N Dockray
Solicitors:
Plaintiff: Douglas & Collins
Defendant: C N Dockray
Judgment Number: [1999] TASSC 152
Number of Paragraphs: 59
Serial No 152/1999
File No 121/1994
BRIAN JAMES COX v STEVEN RICHARD CROOKS
REASONS FOR JUDGMENT UNDERWOOD J
23 December 1999
Introduction
In this action, it is common ground that the plaintiff was injured in a motor vehicle accident on 24 June 1991, and judgment has been entered for damages to be assessed. On that day, the plaintiff was driving his employer's Ford station wagon along the East Tamar Highway from Launceston towards George Town. It was raining and the road was slippery. The plaintiff was travelling at about 90 kilometres per hour. As he was travelling near the turn off to East Arm Road, a vehicle driven by the defendant in the opposite direction crossed onto the incorrect side of the road and crashed into the plaintiff's vehicle.
In the accident, the plaintiff suffered a fracture to his nose, facial lacerations and bruising. It appears likely that he hit his head on the steering wheel. Electrical equipment in the back of the station wagon moved forward on impact. Some object hit the back of the driver's seat with such force that it was twisted slightly to the right.
The plaintiff was taken to the Launceston General Hospital, there treated in the Accident and Emergency Department and sent home. Two days later, he was admitted as an inpatient for the reduction of the fracture. The fracture has healed satisfactorily, but the plaintiff has been left with a permanent loss of smell. There is no dispute about that. The lacerations have healed satisfactorily leaving some minor residual scarring. It is not significant.
The plaintiff returned to his work as an electrician and after some time began to experience neck ache, headaches and lumbar sacral pain. The symptoms gradually became worse and, in consequence, the plaintiff's earning capacity has been substantially diminished and the quality of his life detrimentally affected.
The issue
At trial, the veracity of the plaintiff was not seriously challenged and the defendant accepted liability to pay for loss and damage caused by his tortious act. The principal issue in this litigation is whether the plaintiff's neck pain and headaches are causally related to the defendant's tort. In addition to the plaintiff and his present employer, evidence was given by five medical practitioners. Their opinions on the issue of a causal link between the accident and the plaintiff's neck pain and headaches varied. Critical to the validity of each opinion is the plaintiff's pre and post accident history. What follows represents my findings of fact, unless otherwise stated.
The plaintiff's disabilities
The plaintiff was aged 21 at the time of the accident, and 30 at the date of trial. He qualified as an electrician in January 1990, 18 months before the accident. He was then married with a daughter who was born about the same time as he became a qualified electrician. The plaintiff enjoyed good health prior to the accident and engaged in outdoor pursuits, such as water skiing, shooting and fishing.
As I have said, the plaintiff was treated in the Accident and Emergency Department of the Launceston General Hospital on the day of the accident and discharged. On 26 June 1991, the plaintiff was admitted as an inpatient and the nasal fracture reduced. He was discharged on 28 June 1991. He said that he returned to work about two weeks after the accident. Copy medical certificates in the plaintiff's hospital records confirm this.
It was common ground that the plaintiff did not seek any medical attention or advice with respect to his injuries between 9 July 1991 and 17 June 1994, by which time he was living in Mackay, Queensland.
Following his return to work, the plaintiff worked as an electrician for a number of different employers in northern Tasmania on an almost continuous basis until the end of 1992 (a period of about 18 months after the accident) when he moved to Mackay. The plaintiff said that he experienced pain in his lower back and in his neck, particularly after lifting at work, carrying ladders and other heavy weights and working in confined spaces.
The plaintiff gained employment in Queensland as an electrician after he had been there about two weeks. When he started with his Queensland employer, Star Electrical, an apprentice was allocated to work with him. The apprentice did most of the heavy work. After a short break away from work during which the plaintiff returned to Tasmania, the plaintiff was promoted by his employer to a supervisory position. In this position, the plaintiff was required to do very little manual labour. However, in March 1994, he returned to heavier duties which required him to crawl around roof spaces and under floors. This work exacerbated the pain in the plaintiff's neck, caused headaches and pain in the lumbar sacral area.
The plaintiff found it necessary to take a day off work from time to time in order to try and relieve the pain in his neck and the headaches. As time went by, the pain got worse and the days off became more frequent. Ultimately, the plaintiff's employment was terminated on 18 July 1994. The termination certificate notes, "Brian became unsuitable for this type of work due to a recurring back injury."
Until his employment was terminated, the plaintiff used non-prescription analgesics to control his neck and back pain. After termination of employment, he consulted solicitors who sent him to Mr White, consultant orthopaedic surgeon of Mackay and subsequently to Dr McIntosh, physician, practising as a general practitioner, also in Mackay. Thereafter, the plaintiff took Panadeine Forte, anti-inflammatories and Mersyndol Forte to manage his pain and the disturbed sleep caused by the pain. Mr White advised the plaintiff to give up working as an electrician because it exacerbated the symptoms in his back and neck.
After the plaintiff stopped working with Star Electrical in July 1994, he made several efforts to obtain alternative employment:
· In December 1994, he started a computer aided drafting course, but found that working at the computer terminal increased the incidence of headaches. This resulted in a higher intake of drugs which, in turn, reduced his ability to concentrate. The plaintiff did not complete the course.
· In March 1995, he obtained a training placement as a storeman and general hand with a spare parts company in Mackay. This position was obtained through the Commonwealth Government Rehabilitation Service. Although the work was relatively light, it involved a lot of standing around on concrete floors. At the end of a four hour shift, the plaintiff's neck pain was so bad he had to take analgesics and lie down when he got home. This employment was terminated at the instigation of the plaintiff's occupational therapist.
· In May 1997, the plaintiff took a course in driving trucks and at the end of it gained a licence to drive heavy rigid vehicles. He worked temporarily driving truck loads of sand from the river in Mackay to a nearby dump site. The journey lasted about 20 minutes. The work could only be done while the tide was low, about three hours a day.
· The plaintiff looked for, but has been unable to find, other suitable work in and about Mackay.
By the end of 1994, the plaintiff's neck pain had reached the stage where ordinary household tasks, such as vacuuming and hanging out washing caused him discomfort and headaches. Walking for long distances, sitting for lengthy periods of time and driving long distances, all caused neck pain and headaches. In 1995, his neck and back discomfort was so bad that he had to spend the day in bed, on average, once every six months. At this time headaches were occurring about twice a week.
The plaintiff's medical advisers in Queensland recommended that the plaintiff take up swimming in order to strengthen his back and neck muscles. This he did with some success in that it strengthened the muscles, but pain persisted. The swimming improved his general physical strength and fitness. However, the plaintiff said, and I accept, that he has never recovered sufficiently to enable him to go back to the heavy work of being an electrician.
Towards the end of last year, the plaintiff became friends with a Mr Daymond. Mr Daymond has a licence to catch tropical fish off the coast of Queensland. He sells them live, on the overseas market. The plaintiff started to go out with Mr Daymond in his boat. He learned how to dive with a regulator connected to a compressor on the boat. In January this year, this interest turned into employment for the plaintiff. In one sense, the employment is beneficial as it involves swimming which is medically recommended therapy for the plaintiff. On the other hand, the nature of the swimming required to catch tropical fish is arduous and it causes the plaintiff neck pain, back pain and headaches.
The plaintiff kept a diary in which he has recorded every dive he has made since he began working for money. Between 21 January 1999 and 17 September 1999 (the last entry before trial) the plaintiff dived on 53 days, each dive lasting an average of 1.26 hours. From this work, the plaintiff earned an average of $68.59 on each day he dived. Diving is principally restricted to the winter months because the rainwater flowing into the sea during the summer makes the water dirty and the fish hard to see.
The plaintiff finds that after about 1½ hours underwater, his neck and back pain is such that he has to come to the surface and rest in the boat. If the plaintiff dives on two or three consecutive days, the pain is so bad that he is unable to work for the following one or two days. The plaintiff takes Panadeine Forte before and after diving. When he gets home from work, he is unable to do anything except rest. The plaintiff enjoys this work. He said, and I accept, that he has learned to adjust his way of life to cope with his disabilities. His employer is able to dive more frequently than the plaintiff and able to stay under the water for longer periods.
The plaintiff's sleep is often disturbed by pain, causing him to get up before daybreak on occasions. If the plaintiff is diving, he takes four Panadeine Forte during the course of the day. If he is not diving, he tries to manage on Panadol. He takes up to four Panadol a day. To assist him sleep, the plaintiff takes two Mersyndol Forte each night. During the day, the plaintiff does a little light housework with rests from time to time if he is not diving. Any activity such as horse riding, bike riding or water skiing, that places a strain on the neck, causes pain and is avoided by the plaintiff. This restriction detrimentally affects his social life with his present partner who is keen on outdoor sports and pursuits. The plaintiff's condition has remained the same since about 1995 when he embarked on a fitness program. Although Mr Butorac, orthopaedic surgeon of Launceston, did not accept that the plaintiff was as disabled as he claimed to be, the medical opinion was united that the plaintiff's present disabilities are unlikely to improve in the future.
The plaintiff said, and I accept, that but for his disabilities he would still be working as an electrician.
In a medical report written in June 1994, Mr White described the pain in the plaintiff's lower back as "mild though it does appear to have caused some difficulty with his occupation". With respect to the extent that the back pain has adversely affected the plaintiff's life, the following passage is taken from the cross-examination of the plaintiff:
"You have seen the reports from your specialist, Mr White, the orthopaedic surgeon? ... Yes.
And he described your low back problem as a mild problem. Would you agree with that? ... Yes.
And you don't suggest that if you didn't have a neck problem that you wouldn't be able to do the work of an electrician solely because of your low back discomfort? But it is the neck that causes the problem? ... Yes. And my lower back. They both contribute to it.
But if you didn't have the neck, you would still be able to work as an electrician with your lower back? ... I don't know. I haven't tried it.
Well you know what the symptoms are like in your low back. Take the neck out of it. Just leave it at the low back. Would you still be able to work as an electrician? ... With some difficulty, I suppose, yes.
Do you think you could cope with it? … I don't know, yeah, I don't know."
His treating doctor, Dr McIntosh, said that although the back pain was "a lot less disturbing than his … cervical spine", he thought that it alone was sufficiently severe to prevent him working as an electrician. Mr White's opinion was more optimistic. He said that the plaintiff's back disability was "mild" and that looked at in isolation from the other injuries, the plaintiff would be able to return to work as an electrician if he maintained a high level of fitness. The plaintiff described the pain as being in the middle of his back. He did not describe its nature or intensity. With respect to his neck pain, the plaintiff said that it spreads to his shoulders and radiates into the head causing headaches. He described it as a throbbing pain which changed on making an extreme or sudden neck movement to feel as if "someone's jabbing you with something".
The plaintiff's post accident history
As I have said, the plaintiff said that he had about two weeks off work following the accident. In his evidence-in-chief he said:
"Now following the accident you were off work for about two weeks? ... Yes, that's correct.
And you returned to work as an electrician two weeks after the accident and what did you find on your return to work? ... Um, that during the day I'd get headaches and get generally sorer towards the end of the day.
Right. And where were you getting sore? ... Um, in my lower back and my neck and it was causing headaches you know if I was looking up and stuff like that and -
…
So these symptoms that you got on your return to work, did they get better or worse over time? ... Um. They, yeah got progressively worse.
…
Yes, just dealing with your return to work here in Launceston before you went to Mackay? ... Right.
I think you said you were working with some other people at the time? ... Yes.
Were those other people able to take some of the heavier work? ... Yes.
But was that always? ... No, not always.
And as time went on, I think you said your symptoms developed more and more, did that make it more difficult at work? ... Yes.
…
Right. Now by that time, let's say about a year after the accident, what sorts of difficulties were you encountering performing your duties at work? ... When I was looking up to do things, it was causing neck pain and headaches. And lower back pain when I was lifting and on certain jobs, like we did one job which was putting in a high voltage cable which was sheathed with lead and I found, yeah, that extremely painful doing that."
In cross-examination, it was put to the plaintiff that it was something in the order of two months after the accident before the plaintiff experienced any symptoms of neck pain. The plaintiff denied this and said that, "I got headaches pretty much straight when I went back to work". The following is taken from the plaintiff's cross-examination about this:
"You remember you said in evidence that you had a couple of weeks off after the accident before you went back to work? ... Yes.
I want to suggest to you that it was, in fact, three weeks that you had off before you went back to work? Longer than two, it was three? ... I am not sure, I thought it was two.
I want to suggest to you that it was some weeks after you'd returned to work that you first noticed the onset of neck pain? ... No, it was when I went back to work, it was in the first week that I noticed I was getting headaches and that it wasn't - yeah, it was headaches sort of early on and then I done some heavy lifting which played up with my lower back and I had never had any problems with it before."
I turn now to the evidence of the history that the plaintiff gave the medical practitioners who examined him. The only evidence of the history given by the plaintiff to Mr White appears in Mr White's report dated 21 June 1994, written following a consultation four days earlier, viz, "he was off work for some period but after his return to work became aware of low back pain and complains [sic] of some further problems with his neck". Dr McIntosh gave no evidence of the plaintiff's immediate post accident history. The plaintiff was examined in Launceston by the consultant physician, Dr Maclaine-Cross on 20 July 1995. Dr Maclaine-Cross said that the plaintiff gave him a history of being off work after the accident for two weeks and "after a couple of weeks" back at work, "he developed neck ache and headache and lumbar sacral pain".
The plaintiff consulted the orthopaedic surgeon, Dr Einoder on 24 July 1995. The only evidence of the history given to Dr Einoder appears in his report dated 26 July 1995, viz, "Approximately one month following the accident the patient developed increasing discomfort in the posterior aspect of his neck and lower lumbar area".
On behalf of the defendant, the plaintiff was examined by Mr Butorac on 24 July 1995. According to the evidence of Mr Butorac, the plaintiff then gave him the following history:
"Approximately two months after the accident, started getting low back pain and headaches, water activities aggravated, no neck symptoms at time of accident, over the last two years increasing symptoms of neck and low back pain have restricted his activities, took a lot of days off work, eventually lost job as electrician in Queensland".
It was put to the plaintiff that he gave the medical practitioners the histories that each said that he gave them. He said that he did not think that he told Mr Einoder that it was about a month after the accident until he started developing back pain. However, he did agree that the history recounted by Dr Maclaine-Cross was the history that he gave him. He disputed that he told Mr Butorac that it was two months after the accident before he developed low back pain and after that, neck pain. The following questions were then put to the plaintiff and he gave the following answers:
"So I want to suggest to you that it was between one and two or three months after the accident that you started developing neck and low back pain? ... No, before that it was.
So whilst acknowledging that you told Mr Einoder, Dr Maclaine-Cross and Mr Butorac that there was a gap in the development of symptoms after you started work, your memory today is that it was at or about the time that you returned to work? ... Yeah, at or about the time. It depended on what I was doing at work too you know.
Well when you returned to work, you were placed on light duties? ... Yes.
And those duties were gradually built up to normal duties over what period of time? ... Oh, yeah the next weeks, month..
Next weeks or month. And it was? ... In that time.
Over that build up? ... Yes.
That you began to realise that you were developing neck and low back pain? ... Yes."
The plaintiff said in evidence that on his discharge from hospital after the reduction of the nasal fracture, he was "generally sore all over". He was "just laid up at home" and did very little, apart from resting. The plaintiff made a follow up visit to the hospital on 5 July. This visit is noted in the hospital records. The entries for that day conclude, "For ROS and review 1/52". I infer that this means that the plaintiff was due to attend a week later, being 12 July 1991, for the removal of sutures. The next entry in the hospital records is dated 9 July 1991 and marked "DNA" which I infer means "did not attend". This is perhaps not surprising as, according to the previous entry, he was not due to attend until 12 July. The plaintiff said that to his best recollection, he did attend after a week, "'cause that's when they took me stitches out". There is no entry in the out patients section of the hospital records of an attendance to remove sutures, but I infer that they must have been removed and although nothing turns upon this difference, I accept the plaintiff's evidence that he did attend the out patients department of the Launceston General Hospital for the removal of his sutures on or about 12 July 1991.
The only note of any complaint of neck pain in the hospital records appears in the patient assessment taken by the admitting nurse on 26 June 1991 when the plaintiff was admitted for the reduction of the nasal fracture. Under the heading "Nurse's Findings" there is written:
"R eye contusion - # nose - cut to R face. Little bit of pain. Neck sore - R knee and ankle. Sore finger."
In his evidence, the plaintiff said that when he returned to work he was placed on light duties which were gradually built up over the ensuing few weeks until he resumed his normal work load. The plaintiff said that he began to realise that he was developing neck and low back pain during that build-up period.
Bearing in mind the likelihood that the plaintiff's recollection of the events immediately after the accident would have been better in 1995, when he consulted Dr Maclaine-Cross and Dr Einoder, than it was at the date of trial, I make the following findings of fact from the evidence to which I have just referred:
· the plaintiff was off work after the accident for a period of approximately two weeks;
· during the majority of that time, he was "sore all over";
· the plaintiff experienced no symptoms of discomfort or stiffness in his neck other than general soreness to the same degree as that which existed in other parts of his body, until after he had been back at work about two weeks and his light work load was building up, ie, about a month after the accident as described by the plaintiff to Dr Maclaine-Cross.
There was no evidence to suggest that the plaintiff suffered from post accident cognitive impairment. There was no suggestion that the plaintiff wore or was advised to wear a cervical collar following his admission and subsequent attendances at the hospital. The level of general soreness experienced by the plaintiff immediately after the accident was not such that warranted the taking of anything other than non-prescription analgesics.
The plaintiff's pre-accident history
The plaintiff attended the Launceston General Hospital on 13 August 1989, almost two years before the accident. He went to the hospital because he had been involved in a fight at, or after, his "bucks party". X-ray film of the cervical spine taken that night, revealed changes at the C7/T1 inter-vertebral space with external bony prominence, or spondylophyte almost bridging the inter-vertebral space. It is not possible to be certain as to the cause of this condition. A likely explanation is that early degenerative change began to occur in the plaintiff's neck consequent upon a pre-1989 traumatic event or developmental abnormality. In due course, the natural fusion process will progress until C7/T1 are completely fused. When this will occur is a matter of speculation.
This condition in the plaintiff's neck was asymptomatic prior to the accident which is the subject of the litigation. The neck pain from which the plaintiff suffers appears to originate from a point at, or close to, C7/T1. X-rays of the cervical spine were taken in Queensland in 1994 for the benefit of the plaintiff's treating doctors. Naturally, the changes at C7/T1 were noted. Unaware of the existence of the 1989 x-ray, the radiological evidence led the Queensland practitioners and subsequently, Dr Maclaine-Cross, to conclude, initially, that the cervical/thoracic change was caused by the trauma of the accident.
The defendant's contention
Given the presence of pre-existing degenerative change in the plaintiff's cervical spine, and accepting that it was asymptomatic before the accident, Mr Dockray, counsel for the defendant, advanced this proposition:
1a trauma such as the accident could have caused neck pain and headaches such as that suffered by the plaintiff either by causing the previously asymptomatic disc space to produce symptoms, or by reason of musco-ligamentous strain to some other part of the neck; or
2a trivial, ordinary and unremarkable event, such as sneezing, lifting a bag out of the boot of a car or sleeping in an uncomfortable position, could have caused the previously asymptomatic disc space to produce symptoms;
3the significant factor in determining whether the accident or some unremarkable event was the cause of the plaintiff's neck pain and headaches, is the lapse of time between the alleged event and the onset of these symptoms.
Mr Dockray's thesis was that if the evidence establishes that the plaintiff experienced no symptoms in his neck until a month after the accident, it cannot be said that it is more likely than not that the accident was the cause of the disability in his neck, and not some other trivial and unremarkable event.
The medical opinions
Dr McIntosh would not accept Mr Dockray's thesis. It was his opinion that the accident was the cause of the plaintiff's neck pain. He disagreed with the proposition that whilst the onset of symptoms might be delayed, such delay is never longer than about 24 - 72 hours after the event. Dr McIntosh said that he had patients who complained of headaches and neck pain "several weeks later". However, when pressed with extracts from medical texts citing the proposition that the onset of symptoms usually occurs within six hours, but may be delayed for up to 96 hours, Dr McIntosh changed tack slightly and said that the plaintiff's symptoms may have been masked by the severity of the facial injuries, general soreness and the fact that he was inactive post-operatively.
It was clear to me by the end of the cross-examination that Dr McIntosh was presenting possible arguments to support his diagnosis of musco-ligamentous strain to the cervical spine caused by the accident, rather than expressing scientific, detached medical opinion. It was also clear throughout Dr McIntosh's evidence, that his principal concern, very properly, was for the care of his patient; the precise cause of his disability being of little moment. Where Dr McIntosh's opinion with respect to the cause of the plaintiff's neck pain is in conflict with that given by orthopaedic surgeons, I prefer the opinion of the latter.
Mr White's opinion, like Dr McIntosh's opinion, was that the plaintiff suffered what is colloquially known as a "whiplash" injury in the accident. He refuted the suggestion put to him in cross-examination that symptoms of a whiplash injury are experienced within not more than 96 hours after trauma. He was unable to produce any literature to support this stand, even though he brought with him a recent medical text, Whiplash Injuries, Current Concepts, Prevention, Diagnosis and Treatment by Gunzberg and Stauski (1998). When invited to look through this book to find a passage that supported the proposition that symptoms may not be experienced until more than 96 hours after the trauma, Mr White read this passage:
"After the accident the onset of neck pain usually occurs within the first hours but it is sometimes delayed within two to three days."
He added that in his experience it can be longer than two to three days and said, "… but anyway that's a reference to say that it is not instantaneous. I think that's the main point isn't it?"
It was clear to me that Mr White had not, understandably, given careful, scientific consideration to the issue of the cause of the plaintiff's neck pain and headaches. He was unable to recall whether his opinion that the symptoms were caused by the accident was based on an assumption that the symptoms were experienced within a short time after the accident or not. Revealingly, Mr White said:
"Well the history is pretty simple, that he was involved in a significant car accident of sufficient force to cause him facial injuries, a broken nose, a possible broken maxilla, that is an absolutely sufficient explanation for an injury to the cervical spine [sic]."
In the context of the whole of his evidence, it is clear that Mr White meant "… that is an absolutely sufficient explanation for symptoms from the cervical spine". Mr White then postulated, as did Dr McIntosh, that the symptoms of whiplash injury may have been masked by the other injuries and general pain and soreness. Mr Dockray then asked Mr White to assume:
· that the plaintiff first noticed the onset of symptoms in his neck between four to six weeks after the accident;
· that there was no evidence of the plaintiff suffering post-accident cognitive impairment;
· that the drug advised on discharge from hospital was panadeine ¾ four to six times daily;
· that no cervical collar was advised or prescribed;
· that the plaintiff's only complaints at the hospital one week after the accident were parasthesia to the right nostril and a loss of the sense of smell; and
· the plaintiff returned to work on light duties two to three weeks after the accident, and as his duties became more strenuous, he first noticed neck pain.
Mr Dockray added a further assumption, viz, that the plaintiff failed to attend the hospital one week after discharge following reduction of the nasal fracture. This assumption is contrary to the finding that I have made, but is of little moment. The other assumptions (apart from four to six weeks being about a month, and two to three weeks being about two weeks) are in accordance with the findings that I have made on the undisputed evidence.
Mr White said that if those assumptions constituted the plaintiff's immediate post-accident history, he would not be able to express an opinion either way as to whether the symptoms were causally related to the accident.
Dr Maclaine-Cross agreed with the proposition that given the pre-accident state of the plaintiff's spine, a trivial and unremarkable event could have caused an onset of neck pain. With respect to the cause of the plaintiff's neck pain, he said:
"Well, because the evidence is that this man did not have any symptoms prior to that, that these radiological changes had not just appeared six months before, one year before, they were probably present for years before, and he continued to function with no symptoms. He then sustained a motor vehicle accident where major forces were involved. I mean, it wasn't just a tap on the head, there were significant forces involved on his head and neck. And when I saw him the first time, yes, his symptoms were localised over that area but a lot of the time, we don't know the mechanisms of whiplash injury, but one of the ones that is relevant in some cases, and has some favour in some cases and some people passionately advocate it is posterior facet joint dysfunction where the articular cartilage and the posterior facet joints is damaged and that sets off an inflammatory process."
Dr Maclaine-Cross said that the pain might not have been noticeable to the plaintiff earlier than it was because of his other injuries. He also postulated that early pain might have been masked by pain killers, or that the plaintiff might not have been aware of it because of cognitive impairment sustained in the accident. Dr Maclaine-Cross then said with respect to a hypothesis that none of the foregoing factors had been present:
"Even if all those hypothesises that I put forward as to the way the pain delay may have been present, I don't accept that you can disregard a previously asymptomatic person who has a major head injury, and within a month of that head injury has neck pain, I don't think you can say there is no relationship between that significant head trauma and the pain in the neck. I don't think you can say that."
Dr Maclaine-Cross conceded that a month's delay between trauma and the experience of symptoms was "a delay that we do not ordinarily experience". When asked why he favoured the motor car accident rather than some other event as being the cause of the neck pain, he said:
"I've already said in my letter I cannot dogmatically state that but I'm just saying that a month is a very close proximity and when for all those years before he's had no symptoms, I find it difficult to dismiss the motor vehicle accident."
Dr Maclaine-Cross was asked to comment on the opinion of Mr Butorac, who examined the plaintiff on behalf of the defendant, that the "connection between the motor vehicle accident and his symptoms is tenuous". Dr Maclaine-Cross said that he disagreed with that opinion because of the matters to which he had made reference, the masking of the symptoms, the impairment of the cognitive function and, he added, because during the period of a month, the neck had not been "fully stressed". He further added that the proximity of the car accident to the previously asymptomatic condition of the neck, was also significant, in his opinion. It is to be noted, however, that none of the other medical evidence suggested that the onset of symptoms from a whiplash injury might be delayed until the cervical spine had been fully stressed.
At the request of his solicitors, the plaintiff was seen by Mr Einoder in July 1995. Mr Einoder expressed his opinions in a detached, scientific manner. He said that first, there was no evidence of injury to the cervical spine or surrounding area caused by the accident. Second, he said that the symptoms, such as those of which the plaintiff complained, could be caused by an accident without there being any evidence of injury to the cervical spine or surrounding tissue. Third, he said that because of the lapse of time between the accident and the onset of symptoms, he agreed with Mr Butorac's opinion that the causal link with the accident is tenuous. The following is taken from the end of Mr Einoder's cross-examination:
"You are not prepared to accept on the balance of probabilities that this condition with its delayed onset has been caused by the accident? … No, I have no evidence to say that it has been caused by the accident."
In his written proof of evidence, Mr Butorac said:
"It is my opinion, not only from the 1989 radiological evidence, that the connection between the motor vehicle accident and [the plaintiff's] symptoms is tenuous. This is so because on all the evidence Mr Cox does not appear to have had any symptoms or signs associated with his neck or back at or shortly after the time of his accident. He does however have a history of demonstrated significant radiological changes to his neck preceding the accident. In my opinion Mr Cox's condition is probably related to the coincidental onset of symptoms in his neck which are unrelated to his motor vehicle accident."
It must be borne in mind that at the time he gave that opinion, Mr Butorac's understanding of the plaintiff's history was that a period of about two months had elapsed between the accident and the onset of symptoms. In his oral evidence, Mr Butorac said that notwithstanding his facial injuries, he would have expected the plaintiff to have been aware of symptoms of a whiplash injury within days of the accident. He also said that he did not consider the consumption of panadeine for a week or longer after the accident, would have masked these symptoms. He added that the panadeine may have dampened the symptoms, but "almost certainly" they would have been appreciable by the plaintiff. When it was put to him that no symptoms were experienced for "a month or more" from the day of the accident, he said:
"I find that very difficult to imagine that the symptoms could be delayed for such a lengthy period following an apparently acute injury."
With respect to the entry in the hospital records made by the admitting nurse on 26 June 1991, Mr Butorac said that it would not be likely that neck pain from a whiplash injury would be apparent and then disappear before re-appearing after the plaintiff had returned to work.
Findings from the medical opinion evidence
Application of the findings of fact that have been made with respect to the plaintiff's pre and post accident history, leads to the following result:
· in Mr Butorac's opinion it is not more probable than not that the accident was the cause of the plaintiff's neck pain and headaches;
· in Mr Einoder's opinion it is not more probable than not that the accident was the cause of the plaintiff's neck pain and headaches;
· in Mr White's opinion it is not more probable than not that the accident was the cause of the plaintiff' neck pain and headaches;
· in Dr Maclaine-Cross' opinion that the neck pain and headaches were caused by the accident cannot be disregarded, nor can it be said that there was no relationship between the two matters; and
· in Dr McIntosh's opinion it is more probable than not that the accident was the cause of the plaintiff's neck pain and headaches.
Although not united in every respect, the orthopaedic opinion was united with respect to the proposition that it cannot be said that the accident was the more likely than any other cause to be the cause of the plaintiff's neck pain and headaches. I accept that opinion over that expressed by Dr McIntosh for the reasons given. I also accept that opinion over that expressed by Dr Maclaine-Cross because it emanated from three separate sources, two of which were retained by the plaintiff, because Dr Maclaine-Cross produced no convincing reason why his opinion should be preferred over that expressed by the orthopaedic surgeons and because, in any event, Dr Maclaine-Cross' opinion was no more than that the accident cannot be disregarded as the cause of the plaintiff's neck pain and headaches.
The assessment of damages
As I have already noted, the defendant accepts liability to compensate the plaintiff for the permanent loss of his sense of smell and taste. It is a serious disability. It diminishes the quality of the plaintiff's life. He now eats, not for enjoyment, but to stay alive. He retains some residual sense of taste. To a degree, he can taste spicy food and has a preference for it.
There is no residual sense of smell. He cannot detect food burning or overcooking. Once there was a fire in the kitchen due to his inability to smell the smoke in time. He is, of course, denied the ordinary pleasures that are gained from being able to smell such things as flowers and attractive scents. In the working environment, absence of a sense of smell creates a hazard to him and others on occasions.
During the course of the trial, little attention was devoted to the plaintiff's complaint of lumbar-sacral pain. It appeared from the way in which the trial was conducted that the defendant accepted that this was caused by the motor vehicle accident. Medical evidence that this was so was not challenged. The evidence of damage to the driver's seat in the accident indicates that the plaintiff received an indirect blow of considerable severity to his lower lumbar spine. I accordingly find that the plaintiff's back pain was caused by the defendant's tort.
It is quite clear, however, that the plaintiff's most significant disability is his neck pain and headaches. Although it is, of course, difficult to disentangle the effect of that disability from the disability in the lumbar-sacral spine, the plaintiff has failed to establish that it is more probable than not that his earning capacity has been diminished by the back pain, other than to a slight degree. Upon the evidence, the plaintiff has established no more than that the back pain is the kind of disability that is likely to necessitate a day or two off work from time to time, especially after a period of stress to the affected part. It is the kind of injury that is likely to necessitate the occasional use of analgesics and the occasional visit to a general practitioner and/or physiotherapist. With respect to his claim for lost or diminished earning capacity, the evidence has established no more than that the defendant's tort caused a permanent loss of smell and taste and mild pain to the lumbar-sacral area, all of which have diminished the plaintiff's earning capacity to some slight immeasurable degree.
The correct approach in this case is to make a single award by way of general damages for the injuries that I have found were caused in the accident. In addition to the slight diminution of earning capacity and the loss of amenities of life, an allowance must be made for occasional use of analgesics and anti-inflammatory drugs. Further, the cost of the occasional visit to a general practitioner and physiotherapist must be borne in mind. In addition, the plaintiff is entitled to recover his net lost wages for the period of two weeks following the accident, a sum agreed at $902. Taking all of this into account, I assess damages in the sum of $50,000.
The concluding addresses dealt with the principle issue of causation and no attention was paid to the assessment of damages in the event that the plaintiff failed to establish that his neck pain and headaches were caused by the defendant's tort. Accordingly, I shall postpone ordering entry of judgment until counsel have had an opportunity to address me further with respect to any relevant claims for special damages and/or payments made pursuant to the Workers Rehabilitation and Compensation Act 1988.
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