Craig v Toll Pty Ltd; Craig v Toll Transport Pty Ltd - [2014] NSWSC 868

Supreme Court

New South Wales

Case Title: Craig v Toll Pty Ltd; Craig v Toll Transport Pty Ltd & Anor

Medium Neutral Citation: [2014] NSWSC 868

Hearing Date(s): 18-21 November 2013

Decision Date: 30 June 2014

Before: RS Hulme AJ

Decision:
Publish reasons and adjourn for orders

Catchwords: Negligence - Motor Vehicle Accident - whether within MACA Act - damages

Legislation Cited: Civil Liability Act 2002
Limitation Act 1969
Motor Accidents Compensation Act 1999
Motor Accidents Compensation Amendment Act 2006
Workers Compensation Act 1987

Cases Cited: Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26
Fox v Wood (1981) 148 CLR 438

Category: Principal judgment

Parties: Anthony Mark Craig - Plaintiff
Toll Transport Pty Ltd - First Defendant
Allianz Australia Insurance Limited - Second Defendant

Representation

- Counsel: Counsel:
Mr I Barker QC/Mr J Reimer - Plaintiff
Mr M Neil QC/Mr P Stockley - First Defendant
Mr P Deakin QC/Mr D Petrushnko - Second Defendant)

- Solicitors: Solicitors:
Maxwell Berghouse & Ives Solicitors - Plaintiff
Michael Taylor, Leigh Virtue & Associates - First Defendant
McInnes Wilson Lawyers - Second Defendant

File Number(s): 2009/00297914
2009/00297915

Publication Restriction: No

JUDGMENT

His Honour: These reasons relate to 2 proceedings in which the Plaintiff claims damages.
In proceedings 2009/29715 (which originally commenced as proceedings 4314/07 in the District Court on 28 September 2007) the Plaintiff has sued Toll Pty Ltd trading as Toll Transport. It is claimed that on or about 4 February 2002 the Plaintiff was an employee of Toll Pty Ltd, that he was required to lift and handle heavy cartons, that in the course of this activity he was injured, particularly in the cervical spine area and that the injury was due to the negligence of Toll Pty Ltd in, inter alia, requiring him to lift such cartons, and in failing to provide proper instruction, failing to provide a safe system of work, and failing to provide mechanical or physical assistance to the Plaintiff.
The Defence to those proceedings, originally filed in the District Court admitted the Plaintiff's employment but put in issue the balance of the allegations in the Statement of Claim. It also alleged contributory negligence, credit for payments it had made under the Workers Compensation Act and claimed that the Plaintiff had not taken reasonable steps to mitigate his damage. It also contended that the Plaintiff's claim was statute barred under the Limitation Act 1969 or the Workers Compensation Act. During the hearing I was informed that that issue had been resolved and otherwise there was no reference to it. I shall ignore it.
In proceedings 2009/297914 the Plaintiff has sued Toll Transport Pty Ltd and Allianz Australia Insurance Limited. It is claimed in the Second Further Amended Statement of Claim against both Defendants in these proceedings that Toll Transport Pty Ltd was the registered owner of a truck, registration number QPK 633 and in consequence of that company's failure to have an adequate securing mechanism for the left hand rear door of the truck, or alternatively a failure by a co-employee of the Plaintiff, a Mr Roy Whiteman, (who with the Plaintiff was said to be the servant or agent of Toll Pty Ltd) to secure the door properly, the Plaintiff, on or about 19 September 2002, suffered injury to his lower back and that these failures amount to negligence. Toll Pty Ltd was not joined in the proceedings.
Allianz was the Compulsory Third Party Insurer (CTP) of the vehicle and on its own application was joined in the proceedings as the party responsible under the Motor Accidents Compensation Act to pay compensation in the event that the Plaintiff's injuries arose out of a motor vehicle accident.
In its Further Amended Defence Toll Transport Pty Ltd has denied liability, and alleged contributory negligence. A cross-claim previously filed against Allianz was not relied on although in Part D of Further Submissions emailed to my Associate after the conclusion of the hearing it was said that in certain circumstances a declaration of the entitlement of the First Defendant to an indemnity was sought. In its Defence to the Second Further Amended Statement of Claim Allianz has admitted that it was the CTP Insurer of QPK 633, but does not admit that that was the vehicle involved in the incident alleged by the Plaintiff and alleged contributory negligence Allianz has also claimed that if it is liable, any verdict in favour of the Plaintiff should be reduced:-
Pursuant to s 151Z(2) of the Workers Compensation Act, 1987 because the Plaintiff's injuries resulted from the negligence of the Plaintiff's employer Toll Pty Ltd, and
By the amount of any compensation paid or payable for his work injuries.
There is also a major issue as to the extent of the Plaintiff's injuries and disabilities and as to the extent they can be said to flow from either of the incidents upon which the Plaintiff relies.
During the course of the proceedings it became apparent that there was some doubt whether the vehicle involved was that with the registration number QPK 633 or another vehicle owned by the Plaintiff, registered number QPK 631. Counsel for Allianz conceded that his client was the CTP insurer of whatever vehicle was involved. Late on the third day of hearing the Plaintiff sought to amend its pleading to add after the reference to QPK 633 in the Second Further Amended Statement of Claim the words, "alternatively motor vehicle registered QPK 631". Counsel for Toll Transport did not oppose. Counsel for Allianz asked for time to obtain instructions overnight. On the following day, the last day of hearing, the matter seems to have been overlooked.
First Incident
On 4 February 2002 the Plaintiff was a truck driver employed by Toll Pty Ltd trading as Toll Transport. He worked for 9 hours each night. His work at that time and since he commenced with Toll in 2000 involved him backing the truck up to a loading dock, loading a truck with Toyota vehicle parts, sorting the items by reference to the particular consignees, driving the truck or trucks to Toyota dealers in need of the parts, at each dealership unloading the parts destined for that place, driving to the next delivery point, repeating the activities, ultimately returning to the main Toyota depot and then loading the truck for the morning driver. He worked on his own. The items dealt with encompassed any vehicle accessory including bull bars, tow bars and air-conditioners. Some items were in boxes, some were not. The items varied in weight, some were light but some were not. Gearboxes were as heavy as 150 kilograms each. A pallet of cylinder heads weighed 4 tonnes.
Air conditioners ranged from 40 to 60 kg. These the Plaintiff said were always in boxes with the weight indicated on the outside. The boxes varied in size from about 1000 mm x 700 mm x 700 mm to 1500 mm long with widths and heights of 700 to 800 mm. The Plaintiff said that some of the boxes were awkward although this may have simply been because of their size.
There was a great deal of manual lifting but a pallet jack generally kept on the truck was used for the heavier items or pallets on which a number of items had been placed. The truck was equipped with a tailgate lifter the height of which was adjustable and that could be made level with a loading dock or presumably with the tray of the truck.
There were some time constraints on the Plaintiff's activities in that the premises of some consignees had security systems or staff and could be accessed only at certain times. On occasions the Plaintiff had to be there at those times. On other occasions he had to wait.
According to the Plaintiff whose evidence in this respect was not challenged he was never told by anyone at Toll how he should lift or move heavy objects. However he was a not inexperienced truck driver.
The account that the Plaintiff gave in evidence concerning the incident that occurred on 2 February 2002 was that he had placed a pallet load of air-conditioners in the truck. On the pallet were about 18 air-conditioners in boxes in a number of layers of boxes. There seem to have been 6 in each layer although the Plaintiff estimated there were about 5 layers. When stacked on a full pallet, it was not possible to see over the top of the air-conditioners, and the top of the pile roughly equalled the height of hands held above one's head. A box on the top layer had to be moved to the Liverpool zone - presumably the location in the truck of items for a particular consignee. These figures which come from the Plaintiff's evidence are not readily reconciled with one another or with the Plaintiff's account of the boxes' dimensions. However they were not seriously challenged.
According to the Plaintiff, the particular box that was involved in the incident had a notation of 40 kilos on it and a carry hole in each end. The Plaintiff put his hand in one of these holes and pulled the box intended for Liverpool forward. The motor of the air-conditioner was not taped in, and moved in the box crashing into the end of it. The Plaintiff's explanation of what occurred was not as clear as it might have been but it seems that he had intended to twist to place the box in its intended position but the movement inside the box caused the box to twist, and twisted the Plaintiff more or with greater force than had the motor not moved and in the Plaintiff's words, "broke my neck". He dropped the box but then with great difficulty moved it to its intended position.
The Plaintiff experienced pain he described as "severe" and "immense". He screamed. The attention of someone else was attracted. The Plaintiff was told to go to hospital and the Plaintiff drove to Sutherland Hospital and was sent to Campbelltown Hospital where some plain x-rays were carried out. There the Plaintiff was told he had damaged some muscles and someone at the hospital gave him a couple of days off work.
After a few days off, the Plaintiff returned to work carrying out light duties. These still involved truck driving and delivering. This work exacerbated the Plaintiff's pain which the Plaintiff described as "burning, like violent pain" and his boss told him to see his GP. The latter, Dr Kerecz, sent the Plaintiff for an MRI, and referred him to Dr Stening. In due course the Plaintiff had a C6/7 fusion. He left hospital after about 5 days in "immense" pain despite "taking painkillers, Tramal, morphine based stuff, and OxyNorm, OxyContin-type stuff".
This account of the Plaintiff differs from more contemporaneous documents. Notes of the Campbelltown Hospital of 4 and 6 February 2002 - 2 notes on 4 February - respectively record:-
"Heavy work today. Painful R shoulder. Tender over scapular area. Shoulder located. No neurology. X-ray (indecipherable) Shoulder. NAD
Pt was working lifting heavy objects tonight when he states he experienced onset of sharp pain R shoulder tip radiating down R arm. Pt feels pain on movement - Pt states pain has been slight since 1600 hrs and has continued to exacerbate of exertion. - Painful R shoulder - lifting heavy object today. (There were also some references to the Plaintiff's neck I could not fully understand.)
Represents with pain in right side of chest radiating through to back and upper spine also complaining of tingling in fingers and cold in same not moving arm freely. Onset 2/7 ago - was lifting heavy air conditioners when shoulder became sore - pt kept using shoulder and disregarded pain until pain became really severe."
Later Campbelltown Hospital notes indicate that the Plaintiff presented on 26 February. Notes of 27 February record inter alia:-
"Presents distressed with pain. CT Done last week.
Neck injury at work - bending over & lifted heavy object  severe neck pain on 4/2/02."
In a report of 10 June 2007, Exhibit C, to the Plaintiff's solicitors Dr Kerecz said:-
"In February 2002 Anthony had been lifting an air-conditioner which he had been transporting .... He had developed pain in the neck and radiation of pain and paresthesia in the right hand."
Notes of Dr Kerecz of 11 February 2002 record, "pain in the right scapular region with radiation commenced 7/7 ago - also in neck and radiation down arm - and numbness on tips of R index and middle fingers". He was referred for physiotherapy and later in February referred to Dr Stening. On 3 April Dr Kerecz again records complaints of neck pain and radiation down the Plaintiff's arm. An MRI and operation by Dr Stening were approved, presumably on behalf of the Defendant's insurer. The operation was performed and in July Dr Kerecz' notes recorded that the Plaintiff was doing OK but was given a continuing medical certificate to 31 August. Later he was cleared to return to work. None of these notes contain any reference to the circumstances of the incident itself.
(I should perhaps add that there are notes of Dr Kerecz in Exhibit 6 that seem to bear a date 2 February 2002. Given a page number on that page and the content - reference to a CT scan of C5 - 7 and a disc bulge at C6-7 of the right side - it seems to me probable that the date was 12 February, part having been lost in the photocopying.)
An account of the incident in Exhibit T must be disregarded given the limitations accepted at the time of tender.
On 25 February 2002 Dr Fine, a consultant neurologist sent a report to Toll Pty Ltd. He described the first incident as the Plaintiff "attempt(ing) to lift an air-conditioner that weighed between 20 and 30 kilograms and at the time suffering pain in his back and at the back of his head which radiated down to his neck. He put the air-conditioner down and rang his boss. He felt that he was unable to drive and he parked the truck and left it."
At the time of Dr Fine's examination the Plaintiff complained of pain at the base of his neck, radiating into his right shoulder, down his right arm and into his index, middle and ring fingers. Dr Fine records that the Plaintiff denied any problem with his left arm or his legs. The Plaintiff informed Dr Fine that he had previously suffered an injury to his right shoulder for which he had received a $25,000 payment.
Dr Fine recorded that on examination there was blunting to pin prick over the fingers mentioned, that neck movements were slightly restricted particularly in extension and right lateral flexion. He recorded no other adverse observations. He did however refer to an CT scan of 12 February 2002 as disclosing:-
"At the C6/7 level a right posterior disc protrusion which is abutting and indenting the right anterior surface of the thecal sac. It is encroaching upon the right C6/7 outlet foramen as well as filling in the right lateral recess of C7."
Dr Fine opined:-
"Diagnosis
Posterior disc protrusion at the C6/7 level which is butting and indenting the right anterior surface of the thecal sac.
These disc lesions in the cervical region usually involve hyperextension and hyperflexion injuries. I have not come across this type of disturbance from anybody lifting a heavy weight, nor would I believe there is reference in the literature to suggest this could occur.
There is no evidence of myelopathic involvement and it is difficult to explain why he should have a C6/7 level disc to the stated mechanism of injury.
Fitness for Work
....Mr Craig....is not fit for heavy lifting or work requiring repetitive twisting of his neck. He would be able to resume his normal duties in three months time.
Impairment
Mr Craig....should be re-assessed in three months time. However, it is my belief that it is unlikely he will be left with any permanent neck impairment."
In a report of 11 February 2003 Dr Stening recorded that when he first saw the Plaintiff on 11 March 2002 the Plaintiff "told me that on 4 February 2002 he was lifting an air-conditioner and twisted the wrong way. He felt pain in the back of his neck and down his right arm. ..."
Dr Hitchen saw the Plaintiff on 5 February 2004. He recorded as the history he was given on the February 2002 incident:-
"On 14/2/02 (sic) he was lifting an air-conditioner to load it. He said as he did so he twisted and he noted the onset of pain in his neck and thoracic spine. The pain was severe. He phoned his boss ..."
Dr Innes-Brown also saw the Plaintiff on 5 February 2004. The doctor's account of the incident was:-
"He said that in the course of his work on 14 February 2002 he was lifting air-conditioning units, stacking them in a truck. He said that as he was lifting and twisting with one of these units, he experienced pain in the neck and the back, and he pointed to the front of the lower part of the neck and to the interscapular region. He said he felt that he had "done something" and stopped work forthwith. He said that he communicated with his boss back at the depot ..."
Dr Ellis provided a report of 25 November 2003. That was not in evidence but Dr Ellis included in a report of 17 June 2009 under the heading "History of Injury":-
"He was injured on 14th February 2002 (sic) when he was loading air-conditioners for cars which weighed between 40 and 50 kilograms. He was stacking one on top of another in his truck and experienced sudden severe pain in his neck and pain spread o the upper thoracic spine in the interscapular area. He had to stop work ... "
Dr Cohen initially saw the Plaintiff on 19 June 2003. Dr Cohen's account of the circumstances of the injury were that the Plaintiff "was lifting an air-conditioner into a truck when he developed acute pain in the right side of the neck, pain in the back and numbness in the right index and middle fingers". Drs Giblin and Conrad recount similar histories.
Second Incident
The Plaintiff returned to work a week and 3 days before 18 September 2002, this being on the Plaintiff's estimate, some 3 to 4 months after his fusion operation. While back at work he resumed his normal duties. However, "it hurt like hell" despite the Plaintiff being on painkillers at the time.
On 18 September 2002, he and another employee Roy Whiteman were engaged in delivering some Mitsubishi parts to an address in Wollongong. The truck being used on this occasion was a Tautliner, a truck with fabric sides, the fabric being kept taut with some strapping system. The back of the truck consisted of a tailgate lifter and two full-height but half-width doors which when fully opened, traversed 270 degrees. In the normal course each door could be secured in the open position by attaching to a rail that ran under but along the length of the truck tray, a rubber strap which was affixed to a hook near the bottom of the inside of the doors.
The tailgate lifter could be placed on the ground, raised so it was level with the truck tray, or stopped at any position in between. The Plaintiff said in cross-examination that at the time of the incident the lifter was probably a metre or so off the ground. However elsewhere he had said that at the time of the incident that lifter was in between its lowest and highest positions so they could hop on and off with parcels: It was being used as a stepping platform. Mr Whiteman estimated that at the time the lifter was a foot or a foot and a half of the ground.
The Plaintiff said that after arrival at some premises in Wollongong he opened the right hand door and secured it with its strap and Mr Whiteman opened the left hand door. Thereafter the Plaintiff and Mr Whiteman commenced to unload the vehicle while standing on the lifter. Initially the Plaintiff was standing on the right hand side of the lifter with Mr Whiteman on the left, but at some stage their places reversed. While the Plaintiff was engaged in his task on the left hand side, Mr Whiteman said something. The Plaintiff stepped back to look at Mr Whiteman and was then hit by the left hand door and "flew down the back of the premises" a distance the Plaintiff estimated to be some 14 steps or 8 metres (though later he said about 8 feet). He landed on his feet "in gravel ... and it sort of like drilled me into the ground". He said it was a really hard landing and he felt the pain go straight to his legs and into his lower back.

According to what the Plaintiff said in evidence, the door hit him in the buttocks and on landing "felt it all go, like all the discs pop in my back, in immense agony". He then took a heap of painkillers that he had with him. At the time the weather was "blowing a gale, like wind, storm" or, in Mr Whiteman's word, "atrocious". He added, and I accept, that it had been terrible - and by inference from what he said, very windy - for about a week .
Despite saying at one stage that he did not look at the left hand side of the truck the Plaintiff said that he noticed a Tautliner strap was ripped off the truck and that Mr Whiteman had said to him that as there was no (usual) strap for holding back the door, he had used a Tautliner belt. The normal use of a Tautliner strap is to pull downward the side curtain of trucks such as the Plaintiff was in on the night.
The Plaintiff and Mr Whiteman finished the run but when they returned to base the Plaintiff was told to go straight to hospital because he was spitting blood. The hospital was too busy to see him. After some hours the Plaintiff, still in a lot of pain in his lower back, legs, buttocks, neck, arms and between his shoulder blades, again saw Dr Kerecz. Later that day the Plaintiff said he attended Campbelltown Hospital because he needed morphine. He said his lower back problems started that day.
The Plaintiff returned to work on about 9 October, on light duties and, according to Dr Kerecz' notes of 14 October, working 4 hours per day. He was given an off-sider. In the performance of those duties the Plaintiff drove to the Hunter Valley for about a week or two. On a very bumpy road between Cessnock and Maitland, the truck movement kept jarring his spine and he kept losing feeling in his legs. He also gave evidence that he experienced severe pain and on one of these occasions he eventually managed to drive the truck back to Sydney using a piece of wood on the accelerator. The Plaintiff said that this occurred in October. He was then placed on Workers Compensation and has not worked since. This cessation of works seems to have been in November 2002. The Plaintiff suggested it might have been on the 13th and Dr Kerecz' notes given some support for this.
I did not find clear the Plaintiff's evidence as to when he suffered this pain, He said that in consequence he attended the Maitland Hospital on a number of occasions, i.e. after a number of trips, where they refused to treat him but I am unsure whether there were some trips without pain first. In part the Plaintiff's evidence seems inconsistent with Dr Kerecz' notes referred to below.
Dr Kerecz' notes of 29 October record that the Plaintiff had been doing some weight training and this seemed to be causing him pain. In evidence the Plaintiff agreed this had been aggravating his neck and said that this was part of his physiotherapy arising in consequence of the first accident.
They (presumably his employer) induced him to sign a piece of paper saying that he no longer worked for Toll Transport because he could not drive anymore.
Asked to describe the condition he was in at the time he stopped work, he said "bad, painful, agony" in "my back, legs and buttocks". Felt like I'd been raped, like with a baseball bat or something shoved up somewhere. It still does. It's sciatica or something they call it, or some bad thing there. The sacroiliac joint keeps pooling and all the disks in my spine were protruding". He said that he could not work any more.
Mr Whiteman was called. He said that the occasion with the Plaintiff was the first occasion he had done deliveries in company. He confirmed that the weather was "atrocious". He said that the method of securing an open door was by means of an O ring attached to the railing underneath the side curtain which is placed over a hook on the inside of the door. Such devices were not always in working order and in that situation a door was secured by undoing one of the straps on the Tautliner curtains, tying it somehow around the handle of the door and back onto itself. He could not remember who opened the doors on the night in question nor whether the normal O ring was present or missing.
Asked to describe what occurred he said that the tailgate was only a foot to a foot and a half off the ground, both men were standing on it, he noticed something out of the corner of his eye, and he called out to the Plaintiff who was closest to it to look out. Mr Whiteman said that the Plaintiff put his arm up to protect himself and tried to take evasive action. The Plaintiff "sort of half stepped off the tailgate and was half knocked off it by the door coming around". The Plaintiff landed a couple of feet off the side and rear of the tailgate. Asked if the Plaintiff said anything, Mr Whiteman said he himself just stepped off the tailgate and the Plaintiff said something like "S" and words to the effect, "I just come back from having some bones fused in my neck and I think I have done some damage to them again".
Relevant to any determination as to what occurred at the time of the second incident is Exhibit 2, a Workers Compensation Claim Form that was prepared at the time. Under the heading "WHAT HAPPENED" the following appears:-
"Whilst unloading vehicle in strong winds back door swung around and struck driver on arm and threw him off the back of the tail-lift".
In response to successive questions, "What injur(ies) did you suffer" and "What parts of the body were affected?", there followed, respectively:-
"Strain in neck bruise to left forearm",
and
"As above".
The form records the date and time of the injury as 18/9/02 at midnight, the date and time notice was given as 19/9/02 at 12.30 pm and by report to Kylie Baker. Ms Baker did not remember whether the information in the form came from the Plaintiff or Mr Whiteman. In evidence I accept, the Plaintiff said that while the form bore his signature, the balance of the writing on it was not his.
It is this form that also led to uncertainty as to the registration number of the vehicle involved. QPK 633 was Mr Whiteman's normal vehicle and the one he thinks he and the Plaintiff were using on the night the Plaintiff was injured. However the vehicle number on the form is QPK 631, a number Ms Baker said she would have taken from the driver's run sheet. Ms Baker said she had prior to 18 September ordered a "spare elastic tyre for the rear door" (by which I understand an O ring) of Mr Whiteman's vehicle because she believed it was broken. It was not suggested that any of the evidence referred to in this paragraph was deliberately false and there is little to justify one conclusion rather than another. I think probably Ms Baker's contemporaneous record is to be preferred but I do not regard the evidence as arguing for the conclusion that there was not an O ring missing from the vehicle used by Mr Whiteman and the Plaintiff on the night the Plaintiff was injured.
The only witness called by either of the Defendants was Kylie Baker. There was, in consequence, no witness who contradicted the substance of the Plaintiff's account of the first incident. A statement by Ms Baker made on 30 May 2005 became Exhibit B. Initially it was admitted only against the Toll companies but at T155 most of it (but not including that part as dealt with the tying of the door) was admitted also against Allianz. In the statement Ms Baker recounts being told next day by the Plaintiff that he was in a lot of pain from the top of the back to his neck and by the Plaintiff or Mr Whiteman that on the night in question a curtain strap had been used to tie the rear doors and that a proper rubber tie would not have restrained the door. Given the lack of information and absence of expertise that founded any such opinion, I place no reliance upon it.
I also infer that Ms Baker's reference to a curtain strap being used to tie the rear doors relates to the door the movement of which resulted in the Plaintiff's injury. It may not be inapposite also to record that Ms Baker's recollection as recorded in the statement was that the Plaintiff never returned to work after the 19 September incident. That recollection is clearly wrong.
In evidence as Exhibits A, T, U and V were reports of experts commenting on the incidents. None of these reports were admitted as evidence of the facts set out in them and exhibits T and V were not admitted against Allianz.
In Exhibit V, Mr Neil Adams and a Dr Neil Cubitt commented on the incident of February 2002. Their conclusions included:-
"Assuming that the weight of the box was 40 kg, there is a significant risk of injury for one person to lift it, irrespective of its size."
Their attention was also directed to the size of the carton and the nature of the lift in which the Plaintiff was said to be engaged. They do not both seem to have made the same assumptions in these respects but it is clear from what they did say that both would hold the view that a lift along the lines of that described by the Plaintiff in evidence here would have entailed a substantial risk of injury even if the carton had weighed only 15 kg.
Exhibit T was authored by Mr Adams alone and also is directed to the February 2002 incident. In the circumstances of this case it adds nothing of significance to Exhibit V beyond the obvious point - for which one needs no expert evidence - that a way in which risks to the Plaintiff could have been reduced was to have "appropriate assistance always available". Most or all of Mr Adams alternate suggestions strike me as impractical or pointless.
Exhibit A was co-authored by Mr Adams and Dr Cubitt and is addressed to aspects of the September incident. I have not found it of assistance.
Exhibit U was authored by Mr Adams and is concerned with the September incident. He makes the point that swinging doors have risks and that there are fittings available to secure open rear doors of trucks. His photographs of these seem all to involve trucks with solid, not fabric, sides such as a Tautliner has and are accordingly of no use. Annexure 2, referred to on page 6 of his report seems to be missing from the report tendered.
Mr Adams did however advert to risks associated with the use of Tautliner curtain straps to secure rear doors. I accept what Mr Adams said in that regard and the circumstances referred to do provide possible explanations for the swinging of the door in this case.
Consequences and Medical Evidence
Since September 2002 the Plaintiff has seen a large number of medical practitioners and efforts have been made to treat him in a number of ways that will become apparent as I refer to various medical reports.
Asked how he felt at the time of trial the Plaintiff said, "Sore as hell ... in my lower back, my neck, my arms, and I have numbness in the fingers (and) in the leg". He has difficulty negotiating stairs, needing to use crutches. He said that on the advice of Dr Salmon, he takes 60 mg of OxyContin 3 times a day, 20 mg of OxyNorman 3 times a day, 100 mg of Tramil 3 times a day and 20 mg of Baclofen, a muscle relaxant 3 times a day. From time to time he also has received morphine injections.
In July 2008 the Plaintiff had an operation on his lower spine. The Plaintiff described the impact of this operation performed by Dr Abraszko as "tortured me" and said he was in hospital on that occasion for 8 days. He said he was in agony and the operation did not really help much at all.
Since the incident of February 2002, the Plaintiff has always been taking large quantities of medication. He remains on heavy painkillers.
At the time the Plaintiff stopped work, he was living with his mother and father. The latter has since died. The Plaintiff says that he can't garden or vacuum. He does grocery shopping by hanging onto a stick and the trolley. He can't run and when he tried exercising in a pool, he was kicked out on the grounds that he might injure himself further.
An extraordinarily large number of medical and hospital reports and notes were tendered and admitted into evidence. Because of the Plaintiff's circumstances I have thought it appropriate to refer expressly to a large number of the reports, sometimes at length. Obviously I have selected extracts but in doing so I have sought to ensure the extracts are fair. Generally, I have sought to refer to the reports in chronological order although it has not been practical to do so without exception. However, because the Plaintiff's GP Dr Kerecz was involved almost from the outset and seems to have had a much greater involvement over a much longer period than any other doctor, it is convenient to refer firstly to his notes, reports and letters.
Dr Kerecz' clinical notes during the period 19 September to 18 November merit reproduction in large part:-
"19 Sept 2002 - patient was working last night - wind blew door of truck and struck him - knocking him off tailgate left lift of truck - point of impact was left elbow - but it is not very sore now. At the same time patient felt a click in the neck - pain in left side of neck - O/E whiplash type strain - neck - contusions to left forearm - for rest in soft cervical collar.
21 Sept 2002 - review - becoming more painful in neck - does not feel the collar is helping O/E tender at level of C1-2 over spine - has also developed inter scapular pain - which he had originally noted at time of accident but was not prominent at time of my initial examination - O/E. Some Para spinal tenderness over dorsal spine at the level of mid to low scapula - for x-rays - followed by physio.
4 Oct 2002 -(unreadable) Physio - see letter - overall rotation limited to ½ (unreadable) and L lat flexion was very limited by pain - marked spasm - this had improved over 5 sessions - .... - No work till 8/10/02 inclusive - commence 9/10/02  19/10/02 4 hrs/day 5 days/wk - lift < 8kg
14 Oct 2002 - Pt has returned to work - on 4 hrs per day - ...
29 Oct 2002 - Pt has been doing weight training and this seems to be causing pain - (unreadable) - Workcover med cert X ^ load to 14 kg for 2/52
11 Nov 2002 - Review - still got problems with neck and dorsal back -referral to Dr Stening - ongoing physio - (medication)
14 Nov 2002 - neck locked up last night on the Cessnock Road - pain in high cervical region in midline at C2 level and upper Trapezius region - R arm went numb - had to stop driving and rest for a while - O/E tender C2 over spine - + upper Trapezius fibres - awaiting consult with Dr Stening - Rx (indecipherable) 2mg (indecipherable) - normal 50mg (indecipherable) - Work Cover Med Cert (to) 22.11.02
18 Nov 2002 neck movements have been more than last week - unable to feel feet - legs from waist down have gone numb - has been guarding respirations because of pain and was hyperventilating - to see if he can get in to see Dr Stening (indecipherable) Tramel 50mg (indecipherable)"
In none of the notes prior to 18 November is there any reference which could conceivably relate to the Plaintiff's lower back or limbs.
There were a number of referral letters and one report of Dr Kerecz in evidence. Not unnaturally they contain a deal of repetition and it is necessary to refer to only a selection. Dr Kerecz wrote to Dr Stening on 10 November 2002. He referred to the Plaintiff having been knocked off the tailgate on 19 September, observing that the Plaintiff had sustained a whiplash injury, having felt a click in his neck at the moment of impact. Dr Kerecz remarked that the Plaintiff "was tender over the C2 - C3 region of the spine and also developed interscapular pain as time went on. These pains have been persistent. The actual point of impact was the left elbow, which was sore at the time but has settled". There was no mention of the lower back, buttocks or legs.
In a letter to Dr Stening on 14 June 2006, Dr Kerecz wrote:-
"(The Plaintiff) is complaining that he has taken a turn for the worse since Easter weekend when he had stepped down into sand from some rocks at the beach. This had jarred his back."
In a report to the Plaintiff's solicitors of 10 June 2007, Exhibit C, Dr Kerecz gave an account that generally reflected the notes I have quoted although I should add that in that Exhibit Dr Kerecz says that on landing on 19 September the Plaintiff felt a severe jolt through his entire body. After referring to the Plaintiff's complaints recorded on 18 November 2002, Dr Kerecz continued:-
"5. At review on 21/9/02 ... there was no mention of pain or discomfort in the lower back at this stage, not pain or numbness in the lower limbs.
9. Upon further assessment, it was apparent that Anthony had been very tense because of his neck and associated trapezius muscular spasm and
- this had led to general muscular guarding and spasm
- this is frequently associated with a chronic, low grade, hyper ventilation
- this results in breathing off too much carbon-dioxide
- this, in turn, causes an alkaline pH in the body, ie 'Respitory Alkalosis'
- which can cause - muscular spasms and cramps
- Numbness and paresthesia ('pins and needles' etc)
- A dazed or dizzy feeling - light headedness
- Fainting
The pattern of numbness described (at that time) could not possibly be explained by any neurological injury, i.e. to the spinal cord or spinal nerve roots as may occur with impingement by a disc protrusion or facet joint spur. This was especially so by virtue of normal straight leg raising test on both sides.
11. In early 2003 Anthony continued to describe episodes where he would start to become numb after some time of driving. The numbness would commence in the waist region and eventually work its way down into his legs region. Again, such a pattern of numbness can only represent muscular spasm accompanying guarding and low-grade hyperventilation syndrome as described.
12. In April 2003...I referred Anthony for acupuncture and he had several sessions which he didn't find of any lasting benefit. Also he was attending hydrotherapy, and after these sessions, he found his pain became worse.
13. I assessed Anthony on 13 June 2003...on examination the pain was reproduced by straight leg raising as well as with raising his legs with his knees flexed and whether the movements were active or passive. The pain also radiated to both knees, deeply through the middle of the legs, and there was accompanying paresthesia in a 'stocking distribution' into both legs into the feet. This pattern does not fit with a spinal nerve root aetiology. It fits, once again, more the findings when someone may be guarding from pain or fear and the accompanying muscle spasm and associated restricted breathing which was usually apparent whenever I saw him. Ostensibly from his pain from any movement. (Such a pattern of numbness or paresthesia could occur for other reasons, e.g Vitamin B12 deficiency, Leprosy, advanced Diabetes, Hysterical, Conversion Syndrome, the latter being the only likely possibility here).
14. ... Over the next many months (after July 2003) efforts were made to control Anthony's pain with various combinations of narcotic analgesics and other agents for neuropathic pain. It was believed, from the outset, that other factors were very significantly compounding the situation, such as Anthony's feelings of invalidation and lack of support from his work place or insurer...
15. It was felt he should undergo a comprehensive pain management and rehabilitation program 'ADAPT' and this was organised at the...Royal North Shore Hospital. This program included cognitive behavioural strategies to improve self-management of pain and reduce reliance on analgesic drugs.
Anthony was never able to embrace such ideas and was fixed (and remains so) on the idea that his pain is purely a physical and mechanical issue which requires surgical intervention which will fix the problem. He could not tolerate reducing the analgesics which was part of the program and he defaulted from it.
16. ... He had adopted a bizarre gait which included the use of a walking cane which he held parallel and close to his left leg which he held in full extension, with the foot held in plantar flexion so as to only touch the toes on the ground. I pointed out to be a benefit, one should use a cane on the side opposite the pain rather than the same side, and that this gait may actually be causing some damage to his back. More recently he walks with two crutches...
17. I had continued to try to convince Anthony of my belief that he needed to focus on issues of chronic pain management rather than seeking a surgical cure for his condition. He was unable to accept such an idea, and thus so that justice seem to be done I sought further expert opinions for him by Professor Milton Cohen..., Dr Warrick Stening..., Professor Noel Dan..., Dr Matthew Giblin and another couple of surgeons who were not interested in being involved. Further CT scans, MRI scans and Radionuclide Bone Scans were performed and assessments made.
18. All parties concluded, that although there were now some minor signs of disc bulging at the L5/S1 level, with more recent films even showing some suggestion of some pressure on the right S1 nerve root, that these findings were not enough to explain most of Anthony's symptoms and he should under no circumstances have surgery.
Eventually, towards the end of 2006 Anthony became very agitated and was clearly depressed...I commenced him on treatment with an anti depressant drug.
19. He agreed to return to the pain management clinic program. When he attended, the assessing doctor was most concerned because of comments Anthony had made, and rang me regarding his fears for Anthony's safety and that of others...
Thus the last contact Anthony made with the Pain Clinic was cut short because of the feeling of the director that Anthony was in need of critical psychiatric treatment.
20. ....the situation reached 'stalemate' as Anthony had been taking the same dose of narcotic analgesics for a long time...I have no way of proving how much of Anthony's pain at this point of time is actually related to his addiction to the prescribed narcotics. I have therefore, convinced Anthony of the need to cease his analgesics (with medical assistance)."

Under the heading 'Summary' Dr Kerecz remarked;-
"Anthony is suffering from a severe pain disorder. He sustained an injury on 19.09.02 when he was struck by the rear door of his truck...
There were issues of neuropathic pain involved, as suggested by Professor Milton Cohen...
The patient's perception of what was happening was clearly a shocking experience and potentially traumatic. It is even possible that such an event could have caused Post Traumatic Stress Disorder, however, there are no diagnostic features of this.
Nevertheless, the incident initiated or significantly contributed to a series of interplaying factors which led to a chronic pain disorder which has severely disabled Anthony and he has become dependent on narcotic analgesics, has become depressed and is severely impaired from undertaking gainful employment and pursuing happiness in the form of recreational activities, is reluctant to approach potential romantic relationships or even playing with his own daughter as he would like.
The fact that Anthony is not aware of or willing to accept the mechanism by which he is in pain and disabled does not detract from his impairments connection to the injury and to some extent to his previous injury.
Unless there is major breakthrough, I cannot see that Anthony will be able to do any of the aforesaid activities in the foreseeable future, let alone return to his pre-injury employment."
Reference must be made to a letter Dr Kerecz wrote on 20 June 2007 to Dr SaCordeiro and which was part of Exhibit 5. In it Dr Korecz wrote:-
"For a number of reasons he has become focused on his physical pain issue and he is obviously drug dependent now. I believe he has a combination of somatically initiated pain (which is probably minimal at this stage) as well as primary gain of 'hysterical conversion reaction', such that he actually experiences this somatic pain which is an expression of his emotional pain associated with social and family issues. He refuses to accept this idea.
On some occasions, when Anthony is distracted whilst seated, I have observed him causally lounging in a very relaxed attitude and with apparent comfort in his back but this is immediately relinquished as he arises from sitting, and he engages his intense, guarding attitude. He now uses two walking sticks but seems to be able to drive out of my surgery car park like a professional racing car driver. At other times he is clearly in agony and displays the physiological accompaniments of pain and acute sympathetic response."
The Plaintiff has had numerous radiological scans of his spine. On 12 February 2002 there was a report by Dr Varnava of MDI Diagnostic Imaging of scans of the Plaintiff's cervical spine. So far as is relevant, the report said:-
"CERVICAL SPINE
No cervical rib or fracture is seen. No disc space narrowing is present. The facet-joints articulate normally and no outlet foraminal narrowing is present.
CT SCAN OF THE CERVICAL SPINE
C4/5, C5/6, C7/T1 Levels
No disc protrusion, canal stenosis or outlet foraminal narrowing is seen.
C6/7 Level
There is a right posterior disc protrusion at the C6/7 level which is abutting and indenting the right anterior surface of the thecal sac and encroaching upon the right C6/7 outlet foramen as well as filling in the right lateral recess of C7."
On 23 September 2002, Dr Varnava reported that on radiological examination of the Plaintiff's cervical and thoracic spine:-
"CERVICAL SPINE
There is narrowing of the C6/7 disc space. I note the clinical history of previous surgery. No underlying fracture or dislocation is seen. No cervical rib is present and the facet joints articulate normally.
COMMENT
Narrowing of the C6/7 disc space
THORACIC SPINE
No wedge compression fracture, disc space narrowing or para spinal mass is seen. There is mild thoracolumbar scoliosis convex to the left.
COMMENT
No significant bony or disc space pathology is seen."
A report of Dr McGroder of 26 November 2002 contained in Exhibit 3 refers to the September 2002 incident and says:-
"(The Plaintiff) said that he did not actually fall over but landed on his feet. He felt a jarring sensation through his spine at the time and said that overall his neck pain increased and he said his "Whole body felt funny".
... He had a plain x-ray on the 23.9.02. this demonstrated evidence of cervical fusion at C6-7 and the thoracic spine was normal.
... He said ... he went up around the Cessnock area and had to drive a truck over significantly bumpy ground. ... He said the he developed severed neck pain and pain radiating further into the back which he said was unbearable. ...
He said his main concern at the moment is when he tries to drive. He gets numbness of the whole of both his legs. He said recently he has only been doing local trips around his area because if he does this his legs become numb and he has to get out and move around. ...
(On examination) He had normal gait. ... He could perform a squat. He had reasonable movement of the lower back with forward flexion being fingertips to ankle level. ...
There was tenderness of the whole of the spine to extremely light touch particularly around the area at the cervicothoracic junction. There was tenderness in the soft tissues in this area as well but in the lower back the only tenderness was to the spine itself.
... As far as the lower back is concerned I expect this is also a musculoligamentous strain and there may be some facet involvement in all areas. I do not expect that his leg symptoms are radicular. There is no objective evidence of this and the distribution of his numbness is non anatomical.
Prognosis for Recovery
I would rate this at the moment as only fair. He has had surgery and has now aggravated the cervical spine. Whether or not there is new pathology there or in the lower back is problematical. Of concern is the tenderness over the whole of the spine to extremely light touch.
Other Comments
I expect that at the moment there are some psychological elements present as would be demonstrated by the type of tenderness of the spine and the distribution of his numbness. This may be subconscious. ..."
On 19 December 2002, Dr Masters of Mayne Health Diagnostic Imaging reported to Dr Stening on the results of another MRI of the Plaintiff's cervical spine
"There has been a C6/7 ACDF. There does not appear to be solid bony incorporation on the MR, but this would be better evaluated with plain films or CT.
There is mild spondylitic disease characterised by disc/ridge complexes from the C3/4 to the C5/6 levels inclusive. There is, however, no disc protrusion, central stenosis or cervical cord compression at any of these levels or no nerve root compressive lesion.
At C6/7 there is no disc protrusion, central stenosis or cord compression. There is right neural foraminal encroachment secondary to uncovertebral osteophytes, which appears to impact on the C7 route.
At C7/T1 there is no disc protrusion, central stenosis or cervical cord compression.
The cervical cord is normal in contour, calibre and signal intensity. The roots of the cord are cauda equina are normal in appearance."
In a report of 11 February 2003 Dr Stening's report says that he saw the Plaintiff on 28 November 2002, and that the Plaintiff informed him of being knocked off the back of the truck. The report goes on:-
"He lost his balance but did not fall. He felt a click in his neck and his right arm "went funny". He took two weeks off work and returned on light duties. Following that he noted that driving along a bad road would jar him through the seat particularly his legs and his right arm which would go numb. His neck would go tight. He had not worked for two weeks prior to that consultation.
On Examination
There was no weakness of any muscle group. ...
... I sent him for an MRI scan and reviewed him with this on 19 December 2002. He told me that he had improved over the previous two days but still had soreness. An MRI scan done on 19 December 2002 showed no spinal cord pathology and that the alignment was good and there was no new disc protrusion.
Prognosis and fitness for duties
In view of his second accident, I do not think that this man has yet reached maximal improvement ... as he still experiences some difficulty driving poorly sprung vehicles, I believe that his truck driving should be confined to good roads. I would regard him as fit to be a truck driver provided he does not lift heavy loads, more than 15 kg or hold his neck in an awkward posture for any period of time.
Attributability
The injury he described with twisting his neck the wrong way on 4 February 2002 is an injury consistent with that which would cause an extrusion of the fragment of nucleus pulposis. I would therefore regard his current condition as substantially work related."
Given the contents of Dr Stening's report which preceded the second of these passages, it seems probable that that passage relates not to the whole of the Plaintiff's spine but only the cervical area. Dr Master's report, referred to above indicates the same and that Dr Stening did not seek radiological examination of the Plaintiff's lumbar region. It is to be noted that Dr Stening recorded no complaints of lower back pain, although arguably the reference to numbness includes the Plaintiff's legs.
Dr Kerecz wrote to Dr Chen on 16 April 2003 mentioning the incident of 18 September 2002 and saying that the Plaintiff had developed chronic pain issues and saying that he would like to see if the Plaintiff would benefit from acupuncture.
A report of 17 June 2003 from Dr Meyerson of Macarthur Diagnostic Imaging records that on a plain film scan the lumbar spine was normal in alignment and there was no narrowing of intervertebral disc spaces. A CT scan from L1 to S1 showed "The lumbar spinal canal is normal in dimensions. No evidence of focal disc herniation was noted. No narrowing of lateral recesses or neural exit foramina is present. The facet joints appear normal. ... No abnormality was noted on the lumbar CT scan".
Campbelltown Hospital notes record the Plaintiff attending there on numerous occasions from well prior to the first incident until March 2005 complaining of pain. After September 2003 he was not uncommonly complaining of pain in his lower back and not infrequently in apparent distress. Dates of attendance with these latter complaints include 15 September and 7 November 2003, 17 January 2004 and 15 and 22 March 2005.
A report from Dr Kim Edwards of 5 February 2004, a medico-legal consultant, records that he saw the Plaintiff on that day and that the Plaintiff said that:-
"Lifting causes pain affecting the whole of his back from the lumbo-sacral level to the neck (and that) it "hurts like hell";
He had constant back pain; and
He had leg pain affecting all of both legs, which would go numb, worse on the left than the right.
Physiotherapy aggravated it and hydrotherapy also caused pain."
Dr Edwards reported that plain X-rays and a CT scan of the Plaintiff's lumbar back were reported as normal. He carried out an examination of the Plaintiff including his thoracolumbar spine and that general area and of the Plaintiff's legs. Dr Edwards concluded:-
"There is evidence of fabrication, as is indicated by:-
(A) His exaggerated response to very light skin palpitation of his thoracolumbar spine;
(B) His exaggerated response to testing his reflexes, and
(C) His unusual limp."
Dr Edwards went on to say that he was not convinced that the Plaintiff had any genuine disability affecting his lumbar spine, that the Plaintiff was fit to return to work as a driver but should be restricted to lifting weights of less than 10 - 15 kg and that the Plaintiff's complaints relating to his lower back were not related to his employment at Toll.
Dr Innes-Brown, an orthopaedic surgeon also examined the Plaintiff on 5 February 2004. His report includes, inter alia, the following:-
"22 January 2004 - MRI scan of lumbar spine. Minor posterior prominence of the discs at L4/5 and L5/S1 is noted but there is no nerve root involvement and the epidural fat shadows are preserved.
The history and the findings disclose that this man had long standing degenerative changes in his cervical spine (cervical spondylosis) when he sustained a musculo ligamentous strain in the course of his work on 14 February 2002. All effects of that strain injury, including any transient aggravation of his spondylosis, would have resolved within days or at the most a few weeks. To the extent that his claimed ongoing symptoms were and remain significant, they would be related to the longstanding degenerative pathology in his neck.
Regarding the incident in August 2002 (sic)when he was knocked off the loading platform of a truck, I do not consider that he sustained any significant injury to his back in this incident and any transient aggravation of the degenerative condition in his cervical spine would have long since resolved.
Some of his responses during the examination were quite inconsistent and his behaviour at times was quite bizarre, suggesting that he is endeavouring to exaggerate the level of his claimed disability. From an orthopaedic point of view, I do not understand how he is in receipt of a disability pension.
In my opinion there is no substantial contributing factor from this man's work with Toll in regard to the condition in his neck of in regard to his claimed symptoms in the low back."
Dr Ellis provided a report on the Plaintiff, dated 25 November 2003. That was not in evidence. A report of 13 February 2004 was and in this Dr Ellis commented on the results of an MRI examination apparently performed on 22 January 2004. Dr Ellis remarked:-
"There has been demonstrated central posterior disc protrusion at L5/S1 with desiccation or internal disc disruption and a posterior annular tear. The thecal sac is indented.
At L4/5 disc there is a similar disc protrusion flattening the anterior aspect of the thecal sac.
The investigation confirms my assessment and findings of Mr Craig and my report of the 25.11.2003.
He suffers the effects of two severe injuries to his neck and back and his whole person impairments remains as stated in my report."
A report of 9 June 2004, adds nothing of significance. In a report of 17 June 2009 Dr Ellis remarked, inter alia,:-
"The second injury occurred at Wollongong on the 19 August 2002 (sic), he was standing on the back of the tailgate of the truck unloading. ... There was a strong wind blowing approximately 130 kilometres and one of the doors became unlatched and it swung 180 degrees and hit him on the back and he was knocked to the ground about a metre below. He experienced severe pain in his back and his neck pain and disability were reactivated more severely than in the original injury.
As a result of the accident on the 19 August 2002 (sic) he has musculo-ligamentous contusion, aggravation of degenerative change in his back with secondary effects in his left leg, referred pain and neurological deficit, weakness, positive nerve tension signs, impaired light touch sensibility.
His neck has been further aggravated and there is evidence in the MRI examination of desiccation or (unreadable) disc disruption affecting the upper four cervical discs, as well the neural exit canal on the right side at the C6/7 level is narrowed. It is reported that the narrowing is due to osteophytic encroachment, however the plain x-rays of the cervical spine have revealed no evidence of degenerative change in his neck prior to injury, consequently the neural exit canal encroachment and the persisting radiculopathy in the right arm are due to the effects of the injury and the subluxation at the neuro central joints. There is indisputable radiculopathy affecting his right arm, weakness, loss of sensation in digits two and three, positive nerve tension signs.
His condition has deteriorated since the last assessment and now there is referred pain and neurological deficit in both upper limbs consequent on the neck injury, and there is referred pain and neurological deficit in both lower limbs but particularly affecting the left.
There is no evidence of psychosomatic illness and no evidence of previous abnormality, debility or injury affecting either his back or neck or contributing to his impairment assessment today.
He is requiring massive doses of analgesic medication including potentially addictive narcotics to relieve his pain partially. The side effects of the tablets affect him mentally and make activities of daily living difficult.
The approximate cost of further consultations, treatment at a pain management clinic, further radiological investigation, rehabilitation efforts will cost approximately $4000 annually and the need is likely to continue.
On the evidence available it appears unlikely that surgical intervention would be helpful. However the neurological deficit in his right upper limb is indisputable and affects his right arm which is the dominant one, to a degree where I think in the future re-exploration and a foraminotomy of the C6/7 neural exit canal will have to be considered. The approximate cost of the procedure would be of the order of $20,000.
He is permanently unfit for employment in any capacity even in light work.
Maximal medical improvement can be considered to have been reached....
There is an overall combined whole person impairment of 57%."
Dr Cohen, a consultant physician, provided a report on 15 April 2005. He observed, inter alia,
"On neuro-musculo skeletal examination there was marked restriction of lateral flexion to the left and slight reduction of rotation to the left of the cervical spine with mechanical allodynia (tenderness) over that segment posteriorly in the midline. Examination of upper limb joints was normal. Upper limb myotomes and deep tendon reflexes were normal bilaterally. Global assessment of static hand function was normal but there was diminished appreciation of blunt pin in the right index and midline fingers compared with their fellows. Thoracolumbar rotation was reduced, associated with the alodynia over the midline. There was decreased flexion of the lumbar spine with alodynia in the midline. Straight led raising induced back pain at 30 degrees. There was no abnormality of lower limb myotomal function, deep tendon reflexes or sensation. However this examination was associated with an exacerbation of pain, consistent with hyperpathia.
Radiograph and CT scan of the cervical spine from February 2002 show C6/7 prolapse to the right. MRI scans from February and December 2002 show the same. Radiograph of the cervical spine from June 2002 shows an anterior fusion at C6/7. Radiograph and CT scan of the lumbar spine from June 2003 show bulging at L5/S1.
I considered that Mr Craig's neck and upper body pain was neuropathic, secondary to sensitisation of central nociceptive (pain signalling) neurons following his cervical procedure. The signs were also consistent with damage to the right C6 sensory root. His low back pain was mechanical with referred pain; there was no suggestion of neurological encroachment.
In January 2004 a further MR scan had been obtained (by a medico-legal consultant) which was said to show a bulge at the L5/S1 level.
Mr Craig's main problem was pain in the middle and lower back underlying which there is no structural lesion. However the major constraint on his management is the fact that liability has been declined. As he was in receipt of a pension, he was not in a position to contemplate the usage of some of the newer anti-neuropathic drugs ... nor was in a position to contemplate invasive therapy ...
I reviewed Mr Craig acutely on 14 March last, as he was complaining of an exacerbation of lower back pain following a medical examination during the last week.
Diagnosis
Mr Craig continues to experience neuropathic spinal pain, the term 'neuropathic' implying altered function of pain signalling pathways in the central nervous system. He may also have damage to the right C6 sensory root.
Arising out of uncontrolled pain in his middle and lower back, Mr Craig is currently significantly disabled...at present his prognosis for comfort and function is poor; he is unable to return to the workforce in any capacity. His vocational and avocational prognosis are dependent on his access to a trial of advanced pain relief technology."

Dr Matherson, a consultant neurosurgeon provided a report dated 2 May 2006. He referred to the CT scan of 17 June 2003 in terms somewhat inconsistent with those of Dr Meyerson, recording ; -
"17/6/2003; there were plain x-rays of the lumbar region which were normal and a CT scan of the lumbar region which shows some irregularity at the back of the lumbo sacral disc on the right side. It was not encroaching on any neural structures.
22/01/2004; there is a MRI scan of the lumbar region which showed some narrowing of the back of the lumbo sacral disc and some faint right sided prolapse but not on any neural structures.
....
13/11/2005. There is a CT scan of the lumbo region showing again the small right sided irregularity at the back of the lumbo sacral disc."
Dr Matherson's report includes the following:
"He hobbled into the office with a very unconvincing gait using a walking stick to parallel his right leg...neck movements were held rigid and it was impossible to judge what restriction was present. There was no spasm. In the lumbar region there was a similar performance of restriction of mobility. There was again no spasm. The thoracic region appeared normal, however, he exhibited tenderness to skin touching from the base of the skull to the sacrum which is considered non-organic. Straight leg raising produced immediate complaints of pain which of course is impossible. He was observed at one stage to sit on the couch with his legs outstretched while getting on the couch but to formal testing he would to allow this manoeuvre to occur. It was considered that straight leg raising was negative.
Neurological Examination
This showed functional features only. He demonstrated sensory loss over the whole of the right hand extending on the back of the right forearm which was non-organic. This would cloud any possible sensory loss from his previous C7 involvement. He also demonstrated dense sensory loss in the left leg from above the groin down in a non-organic distribution. As far as power testing is concerned he claimed any movement of any muscle produced pain throughout his spine but he moved all muscles and there was no evidence of any weakness. There was no wasting. All reflexes were normal in all four limbs however he claimed I caused pain every time I struck a reflex despite the fact that all times I put a finger between the percussion hammer and his tendon, it could not have possibly been hurting him."
Dr Matherson also commented on some other reports. He recorded that Dr Cohen had noted marked pain behaviour as he himself had but suggested that Dr Cohen's opinion of the Plaintiff's neck and upper body pain being neuropathic made no sense neurologically. Addressing Dr Ellis' view, Dr Matherson said that the Plaintiff's "second injury was certainly not a severe injury and produced no disability. I cannot accept Dr Ellis's opinion. He described an L4/5 disc as well which I do not believe is present and it certainly is not present on the MRI scan although there are some minor changes in the lumbo sacral disc". Dr Matherson continued; -
"There is no evidence of any injury sustained from the second accident of 19 June 2002 (sic) his behaviour is that of illness behaviour and not of an organic disease."
On 14 June 2006, Dr Kerecz wrote to Dr Stening:-
"Herewith Anthony Craig for review of his spine once again with particular reference to the lumbar region.
He is complaining that he has taken a turn for the worse since Easter weekend when he had stepped down into sand from some rocks at the beach. This had jarred his back."
Included in the Campbelltown Hospital Notes in Exhibit 3 was a letter from Dr Giblin to Dr Kerecz of 4 August 2006. I refer below to a report of Dr Giblin but it might be mentioned that in the letter of 4 August, Dr Giblin mentions the incident of 19 September and said that:-
"Since that time he has had numbness in his left leg and extreme pain in his right leg and low back discomfort. He continued with conservative treatment and felt a snapping sensation in 2005 and then since Easter this year the pain has increased again.
On examination, his pain behaviours are extreme to say the least!"
Dr Zeman, a Consultant in Rehabilitation Medicine provided a very lengthy report dated 16 August 2006. In it he records the Plaintiff's account of the 17 September 2002 accident as follows;-
"It was difficult to obtain specific details on the actual accident and it was unclear whether he was struck by the door or took evasive action and jumped to the ground. He landed on his feet and reported experiencing pain straight away. Again it was difficult to obtain details about his problems at the time. Later, he reported that he felt pain in the buttock and back of leg but was unclear whether he had such problems at the time."
The report included reference to many prior reports including of radiological examinations. I see no need at this time to refer to the references to radiological reports concerning the Plaintiff's cervical spine but those concerning the lumbar region might be noted:-
"MRI scan on the 22/1/04 of the lumbo sacral spine reported central disc protrusion at L5/S1 with a desiccation or internal disc disruption and a posterior annular tear. At L4/5 there is a similar disc protrusion flattening the anterior aspect of thecal sac. There was no spinal cord or nerve root compression.
MRI scan of the lumbo sacral spine on the 8/8/06 showed degenerative disc disease at the L5/S1 level with an associated disc protrusion. The disc protrusion compressed the right S1 nerve root in the intervertebral foramen."
Dr Zeman also recorded, inter alia:-
"As he entered and left the room he walked with an abnormal gait using two sticks and holding his left knee fully extended...he could dress and undress without assistance.
His low back and legs were examined. Assessment of his range of movements was done cautiously to avoid any pain and all movements were done actively within his own limits and without any additional force on my part...there was...no significant muscle wasting in the legs...lumbar flexion was 20 degrees; lumbar extension was 0 degrees; lateral flexion was 15 degrees on left and right sides; and lateral rotation was 15 degrees on left and right sides. These movements were self-restricted because of alleged pain and were not consistent with his movements displayed during other parts of the assessment including while sitting. Straight leg raise was 10 degrees on left and right sides with a negative sciatic nerve stretch test. It was noted that he had a positive Hoover's sign....this indicates a lack of physical effort even if subconscious....he was noted to be able to laterally flex to 30 degrees while walking with his sticks.
He had more than anti-gravity control of his lower limbs, normal muscle tone and intact reflexes.
...
On examination, (the Plaintiff) displayed significant non-organic behavioural restrictions that made it difficult to determine the degree of underlying organic pathology. He had an inconsistent range of movement with clinical signs of non-organic restriction...
His investigations before the alleged accident in September 2002 note a prolapsed C6/7 disc with right nerve root compression...it was appropriate to have surgery to the neck with decompression of the nerve root and fusion. Even with such surgery, complete recovery would not be expected and some limitations would occur.
... Although he reports low back and leg problems after a somewhat vague injury on 19/9/02, this could not be adequately substantiated on the provided information. He saw his local doctor and then a specialist (Dr Stening) after the accident with complaints of neck and thoracic pain. His confirmed complaints of low back pain did not occur until some months after the alleged incident.
The subsequent investigation of the lumbar region show no fractures but degenerative disc disease at the lumbosacral level. This degenerative disc disease resulted in a disc protrusion confirmed on subsequent investigations. There was no nerve root compression in the first 2 years on these investigations but recent investigations have shown rightL5/S1 nerve root compression.
... It was thought for many years by doctors that low back pain was predominantly due to disc disease. As a result, many patients with low back pain had surgery for disc removal. However, these procedures generally did not result in pain reduction or functional improvement and indeed sometimes caused a worsening. Since then, studies have shown that much low back pain is not related to disc pathology. ...
The subsequent investigations of the lumbar region show no fractures but degenerative disc disease at the lumbosacral level. This degenerative disc disease resulted in a disc protrusion confirmed on subsequent investigations. There was no nerve root compression in the first two years of these investigations but recent investigations have shown right L5/S1 nerve root compression.
Mr Craig reports predominate pain in the low back and buttocks. This is possibly consistent with his account of the alleged accident as reported to me but is not consistent with the available reports at the time. At the time of the accident, and for about nine months after the alleged accident, he did not report any significant low back or leg complaints. Currently he has no objective clinical signs of significant organic pathology in the low back but has significant signs of non-organic pain and exaggeration. His investigations of the lumbo sacral region show no fractures but did show degenerative disc disease at the L5/S1 level with an associated disc protrusion. The degenerative disc disease would have taken several years to develop and would not have been caused or significantly exacerbated by the alleged fall. He had further CT scans and then an MRI scan which showed the disc protrusion to be stable and without any nerve root compression. However, a recent MRI scan has shown that this degenerative disc protrusion is now impinging on the right S1 nerve root. Despite this, he has no clinical signs of nerve root compression. The S1 nerve root supplies sensation to the sole of the foot, muscle control of toe extensors, as well as ankle jerk. These were all in tact yet he complains of pain in a much wider area.
In my opinion, Mr Craig has abnormal illness behaviour. By this I mean that his complaints of pain and reduced function are greater than one would expect from the degree of underlying organic pathology.
In my opinion the accident in September 2002 did not cause any significant injury.
Some months after the accident, he reported low back pain and investigations showed degenerative disc disease of long standing in lumbo sacral region with disc prolapse. In my opinion, the absence of symptoms at the time of the accident in September 2002 and for some months later, as well as absence of objective clinical signs in the back and legs, indicates that this was not related to the accident."
Dr Dan, a neurosurgeon saw the Plaintiff on 18 September 2006 and provided a report the next day. Inter alia, Dr Dan observed:-
"(The Plaintiff) said on 19/9/02 he was blown off a tailgate landing with his legs which sent a (unreadable) up his spine. He felt that he had 'popped a disc' in his low back. He had neck x-rays the following day and was off work for a time.
He says it was at Easter 2006 (I note your dating to late 2005). He was walking on sand and developed extreme pain in the low back and right lower limb. Pain spread from the lumbar region to the right buttock and then to the back of the ankle but not to the foot. He reported numbness of the left lower leg and superior foot.
He was tender in the low lumbar regions with a scoliotic curve. Trendelenburg's test was normal. He cried out during many of the normal testing manoeuvres. Straight leg raising induced back pain round 45 degrees on the right and 30 degrees on the left side. I could see no abnormality of power or reflexes but pin prick was dull over the left foot and the lateral leg as far as the knee and was also reduced over the lower anterior thigh. There was no tenderness over the right hip. He was using two walking sticks in various fashions.
I note that the bone scan of 7.11.05 was normal. CT of 3.11.05, 15.6.06 and the MRI of 8.8.06 showed a central to right lumbo sacral disc protrusion with some encroachment on the right S1 root. There was a slight difference between the films but no significant difference. The earlier CT's of 17.6.03, 3.11.05 and the MR of 22.1.04 did not show this disc lesion. I couldn't not convince myself in any of the films that there was any significant involvement of the left side. The hip x-rays of 4.5.06 and the CT were reportedly normal.
Whilst the right lumbosacral disc lesion would explain his more recent pain, the significant pain left sided problems are not explainable on the available radiology.
I told him unequivocally that I could see no place for surgery and that he needed to be in an active physical program and a pain management program.....He did not accept my comments."
Drs Jaumees and Holford of the Royal North Shore Pain Management and Research Centre provided reports in December 2006 and April 2007. Dr Jaumees recorded that the team of which she was a member thought that the way forward for the Plaintiff was a cognitive behavioural therapy based management program and participation in another pain management program, although, in light of the fact that the Plaintiff had chosen not to complete an earlier such program, participation again would only be permitted on the basis that he undertook to complete it. Dr Jeumees also referred to medications the Plaintiff was or could be on adding that she had advised the Plaintiff against taking his father's Ordine "Which he says he takes at times of distress".
Dr Holford also dealt with the topic of the Plaintiff's medications, indicated concern at the level of the Plaintiff's use of opioids and said that he had again advised the Plaintiff against the use of his father's medication. Dr Holford recorded that the Plaintiff "remains extremely somatically focused and is fixated with the idea of having a surgical procedure to cure his pain or an implanted therapeutic device such as an intrathecal pump or spinal cord stimulator (and) remains vehemently opposed to considering participation in the ADAPT multidisciplinary pain management program".
Dr Holford recorded that the Plaintiff had been extremely angry and tearful at times during his interview, and that he was concerned at the Plaintiff's expression of suicidal and other homicidal idea thoughts.
Dr Stanford, an orthopaedic and spine surgeon provided a report of 9 March 2007. He referred, inter alia, to a 2006 MRI scan that he described as the most recent and remarked that it showed a small protrusion on the right at L5/S1 but all other vertebral discs of the lumbar spine were healthy. Dr Stanford's conclusions were:-
"Anthony has a deeply entrenched chronic pain syndrome. His demonstrated injuries do not correspond to the degree of disability that he exhibits. Surgical intervention will be of absolutely no benefit. I have told Anthony he should exercise as his only chance of improving function. He was not willing to except this and I could not advise him further."
Professor Ryan, whose letterhead states he is a Clinical Associate Professor of Surgery and indicates a specialty in Orthopaedic and Spinal Surgery, provided 3 reports. In the first, dated 26 May 2006, he said, inter alia:-
"(The Plaintiff) describes himself as having razor blades in his back and legs, and his legs are sensitive to touch.
Mr Craig walked into my office using a rather bizarre, left hip ducted gait. He also toe-walked on his left hand side.
Changing clothes for the purposes of physical examination was accompanied by sighing and expletives. Any attempt at right leg movement such as hip rotation when lying in extension evinced a very violent response accompanied by swearing and expletives.
On testing of left leg sensation repeated examination revealed differing responses. Initially I formed the impression he had loss of sensation of the whole of the left leg. On further examination he stated the left leg sensation was lost from below the left knee in a stocking distribution.
I concluded that Mr Craig was exhibiting gross pain behaviour...in response to a relatively minor injury. I concluded that he probably suffers from somatic low back pain and somatic leg pain.
From Mr Craig's own account, and snippets of Dr Stening's and Dr Cohen's reports, it would seem that Mr Craig suffered a minor aggravation of his neck and arm pain caused by the fall of the 18 September 2002 and that sometime in November (possibly the 19 November 2002) his low back pain occurred after driving on a rough road.
Regarding the index incident (the fall of the 18 September 2002), Mr Craig seems to have suffered a minor perturbation to his head and neck which did not significantly alter his impairment as a result of the previous injury (February 2002).
As a consequence of that injury and his subsequent surgical treatment, Mr Craig would have a 25-27% whole person impairment attributable to his cervical spine, DRE cervical category IV...it is reasonable to state however that Mr Craig had at least a 25% whole person impairment attributable to his cervical spine present before the events of the 18 September 2002.
His subsequent back problems appear to have started on the 19 November 2002, after the drive from Cessnock to Maitland.
Unfortunately, Dr Ellis' report (25 November 2003) does not contain an account of this event and he has attributed all of Mr Craig's subsequent low back and leg problems to that event without the benefit or perhaps the knowledge of what happened subsequently.
Because of Mr Craig's behaviour, it is impossible to give an accurate rating of the current condition of his low back or legs. I suspect that a considerable proportion of the physical signs recorded at this examination were an elaboration of pain behaviour and not a true reflection of his impairment."
In his report 23 February 2009 Professor Ryan refers to the Plaintiff having undergone an operation on his lumbar spine in July 2008 at the hands of Dr Abraszko. Under the heading 'Physical Examination' Professor Ryan said inter alia:
"On attempted straight leg raise and bent leg raise, Mr Craig complained vociferously of low back pain. Not withstanding the complaint of agonising pain on attempted bent leg raise he was able to sit comfortably (which produces the same manoeuvre).
I concluded Mr Craig has undergone a surgical procedure to his lumbar spine. His physical signs have deteriorated in the sense that he no longer uses sticks but now depends totally on Canadian crutches. These are factious physical signs and are attributable to Mr Craig's physiological response to his symptoms."
("Factitious" means "contrived")
Dr Giblin had recorded seeing the Plaintiff on 4 and 11 August 2006, 4 September 2006 and 2 May 2007. In consequence of one of the early visits, the Plaintiff undertook an epidural and afterwards the Plaintiff said this made him worse. Dr Giblin concluded there was little further he could offer the Plaintiff by way of help. Dr Giblin's report of 27 June 2007 included the following:-
"... On 19th September 2002, a truck door flew off and hit him in the back. Since that time he had numbness in his left leg, extreme pain in his right leg and low back discomfort. He continued with conservative treatment and felt a 'snapping' sensation in 2005 and since Easter of 2006, the pain had increased again.
On examination (the Plaintiff's) pain behaviour was extreme to say the least! He walked with two walking sticks and the left leg was continually supported with the left walking stick and he tended to walk with the left toes plantar flexed only just touching the floor for support. Straight leg raising was limited bilaterally while sitting and his reflexes and ankle reflexes were normal. Apart from that, it was too difficult to determine sensation appropriately.
A CT scan of his lumbar spine had been performed which was unremarkable, apart from a right-sided L5/S1 disc lesion.
His MRI confirmed a right-sided L5/S1 disc lesion with pressure on the S1 nerve root.
It is my opinion this gentleman's injuries were consistent with the accident described. He would appear to have an injury to his L5/S1 disc, but there is significant anxiety and apprehension surrounding the situation and he does seem to be very pain focused."

Relying on these remarks, Mr Deakin submitted that this is the sort of case that Parliament intended to exclude from the scope of the Compulsory Third Party Insurance Scheme. I do not agree. One may accept that it was intended to limit the operation of the scheme and exclude many cases of loading or unloading but this was achieved by requiring an injury, to be "a result of and is caused during" its use or operation and by a defect in the vehicle. If loading or unloading simpliciter or injury arising otherwise than "from crashes and collisions on the roads or from vehicles running out of control" were intended to be excluded, Parliament could very easily have said so.
Here there can be no doubt that the absence of the O ring and the use of the vehicle in that condition contributed to the Plaintiff's injury. However there was another, and subsequent, contributing cause. It was Mr Whiteman's inadequate securing of the door with the Tautliner strap. Had that securing not occurred, it is a reasonable inference that the door involved would have been left shut or at least not been in a situation where it swung violently towards an unsuspecting Plaintiff.
In Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 the High Court had to consider a case where a truck had a defect in its unloading apparatus. To overcome the effect of this the owner directed employees to unload the truck manually. Injury occurred during that operation. The Court held that given the object of the Act to limit damages payable by third party insurers, the injury should not be regarded as the result of and caused by the defect but by the subsequent instruction.
By parity of reasoning it follows that the Plaintiff's injury here was not, within the meaning of the Act, the result of and caused by the defect in the truck. Accordingly, there will be a verdict for Allianz.
Effect on the Plaintiff
One issue that does arise concerns the immediate impact on the Plaintiff of leaving the tailgate lifter as he did. I do not accept that the Plaintiff landed anywhere like as far from the tailgate as that he said he did. In that connection I prefer the evidence of Mr Whiteman that the Plaintiff landed "a couple of foot off the side (or rear) of the tailgate". Given that the tailgate lifter was being used as a step, it could not have been a metre from the ground as the Plaintiff said at one stage and was probably somewhat lower than 600 mm or 2 feet. Any higher and it would have been a very inconvenient step. Common experience argues convincingly against the Plaintiff being driven or jumping from that height anything like the horizontal distance he claimed.
I am satisfied that the door struck the Plaintiff on his arm and not some other part of his body, that being the version stated in the Plaintiff's Worker's Compensation Claim form. Although Ms Baker said in evidence that her filling in the form might have been from talking to Mr Whiteman, whatever the situation so far as other aspects of the form are concerned, the probability is that information as to the injuries the Plaintiff suffered and the parts of his body injured, came from the Plaintiff. According to the form those injuries, and the parts of the body affected were "Strain to neck, Bruise to right forearm". I rather doubt the Plaintiff's evidence to the effect that he did not read the form - he had previously had a successful Workers Compensation claim - but whether he did or not the strong probability is as I have indicated.
That the Plaintiff was struck on the arm and not some other part of his body is supported also by Dr Kerecz' notes of 19 September 2002.
I am also satisfied that, as the Plaintiff said 3 times in evidence, he landed on his feet.
There is an issue as to how hard the Plaintiff landed. Given that any movement of the (hinged) door was horizontal, the Plaintiff's evidence here that "it sort of drilled me into the ground" is nonsense. His evidence suffers from my reservations about his credibility generally but his evidence to the effect that it was a really hard landing derives some support from Dr McGroder's record of 26 November 2002 of the Plaintiff having said that he felt a jarring sensation through his spine and from Dr Keresz' report. I accept that there was an element of jarring in the Plaintiff's landing but how hard that jarring was is not as readily determined.
The Plaintiff's evidence that "I felt the pain go straight to my legs and into my lower back" is contradicted by the fact that the only reference he made at the time was to pain in his neck. His evidence in court and that "I felt it all go, like all the discs pop in my back, in immense agony" and that when he went to see Dr Kerecz he was "in a hell of a lot of pain" in his lower back, his legs, his buttocks, in between his shoulder blades, his neck and his arms is impossible to reconcile with the statement in the Workers Claim form that the parts injured were his neck and left forearm, with Dr Kerecz' notes of and soon after 19 September, with the fact that the radiological examination conducted on 23 September 2002 was of only the Plaintiff's cervical spine and with Dr Stening's statement of seeing the Plaintiff on 28 November 2002 and that what the Plaintiff felt at the time of the incident was that "he felt a click in his neck and his right arm went funny".
The first record of the Plaintiff suffering any health problems after his return to work on about 9 October is Dr Kerecz' note of 29 October and the first record of any complaint of problems other than in his upper body is the note of 18 November. In that note there is no reference to the Plaintiff's back but there is reference to his legs from the waist down. In these circumstances my conclusion is that the Plaintiff experienced no significant symptoms in his legs or lower spine until 18 November or very shortly before that time.
The Plaintiff gave evidence of having experienced pain on a number of occasions before he ceased work while driving on a rough road, of his pain being so bad that he attended Maitland Hospital on a number of occasions, and of an incapacity on the last occasion significantly greater than appears in the 14 November note. Although as I have said I have concerns about the Plaintiff's credibility, I doubt if he made all of that up and I accept he experienced some pains during the course of a number of trips to the Hunter Valley. However, I am not persuaded that prior to the period between about 18 and 28 November 2002 when he saw Drs Kerecz, McGroder and Dr Stening, the Plaintiff experienced any symptoms in his lower back or lower limbs.
Certainly after that time there have been numerous complaints although the early ones seem to have been of numbness in his legs rather than of pain in the back.
I return to the evidence of the doctors. On 17 June Dr Meyerson reported that scans of the Plaintiff's lumbar spine displayed no abnormality. Dr Dan agreed. Dr Matherson disagreed. He said:-
"17/6/2003; there were plain x-rays of the lumbar region which were normal and a CT scan of the lumbar region which shows some irregularity at the back of the lumbo sacral disc on the right side. It was not encroaching on any neural structures."
Dr Cohen said that the scan showed bulging at L5/S1.
Scans done on 22 January 2004 are also the subject of disagreement between the doctors. Dr Edwards does not report on these. Dr Innes-Brown said, "Minor posterior prominence of the discs at L4/5 and L5/S1 is noted but there is no nerve root involvement and the epidural fat shadows are preserved". Dr Matherson in substance agreed. So did Dr Dan.
On the other hand, Dr Ellis said:
"There has been demonstrated central posterior disc protrusion at L5/S1 with desiccation or internal disc disruption and a posterior annular tear. The thecal sac is indented.
At L4/5 disc there is a similar disc protrusion flattening the anterior aspect of the thecal sac."
Dr Zeman agreed, though adding that "there was no spinal cord or nerve root compression".
Dr Zeman said that compression of the right S1 nerve root was apparent in an 8 August 2006 scan. Dr Dan agrees. Dr Stanford thought the disc to be of normal height but somewhat desiccated. Dr Abraszko refers to encroachment on both S1 nerve roots apparent on an MRI of 9 August 2006 (probably the same scan). In his report of 27 June 2007, Dr Giblin also referred to an MRI showing pressure on the S1 nerve root. From the timing of events referred to in Dr Giblin's report, it seems probable that he is also referring to the same scan.
Recognising that there are disagreements, the weight of this evidence is that there was no spinal cord or nerve root impingement in the Plaintiff's lumbar spine in January 2004 but there was some in August 2006.
Of the 12 or so doctors who considered the relationship between the incident of 19 September and the condition of the Plaintiff's lower back and his complaints of pain, Dr Edwards, Dr Innes-Brown and Dr Matheson thought that the incident did not cause the problems. That was also Dr Zemans' view although he may have been influenced by an erroneous impression that the Plaintiff did not report any significant low back or leg complaints for about 9 months. Professor Ryan and Dr Abraszo seem to have attributed the Plaintiff's problems or at least the manifestation of them to the rough roads he drove on in November 2002. Dr Hitchen thought that the 19 September incident was not the cause of any lower back problem. Dr Kerecz does not support the existence of any physical damage to the lower spine as productive of any pain. Dr McGroder took a similar view.
To the opposite effect is the opinion of Dr Ellis. It may not have been critical to the doctor's opinion but a history of the Plaintiff having been struck on the back by the door is not one I have accepted.
Dr Cohen seems to have accepted the Plaintiff's complaints of pain, opining that they were neuropathic. He does not suggest they are due to any physical damage to the lower spine. He seems to accept the possibility that the Plaintiff's low back pain may be due to damage to his cervical spine.
Dr Giblin thought that the Plaintiff's injuries including a rightsided L5/S1 disc lesion with pressure on the S1 nerve root were consistent with the "incident described". However Dr Giblin's account of the incident as "a truck door flew off and hit him in the back. Since that time he'd had numbness in his left leg, extreme pain in his right leg and low back discomfort" is at least in part wrong. Furthermore, it is not clear what Dr Giblin meant by "Since that time". It does not obviously encompass 2 months symptom free after the incident.
Dr Conrad does attribute the Plaintiff's complaints and a disc prolapse to the 19th September incident, however, as has been said, he seems to have relied at least in part on an inaccurate history of symptoms occurring within days of the 19 September incident.
Dr Kerecz seems to think that the Plaintiff's pain is due to muscular guarding and spasm and breathing difficulties or possibly drug addiction or a hysterical reaction. Dr Smith agrees with the latter, saying that there is nothing objectively wrong with the Plaintiff.
It might be noted also that Drs Innes-Brown, Ellis, Zeman and Hitchen refer to the fact that that the Plaintiff does have degenerative deterioration of his spine.
Thus the majority of doctors are of the opinion that the incident of 19 September 2002 has not caused any problem in the Plaintiff's lower back or legs. It is not simply a case of counting heads but an analysis of what all the doctors have said leads me to prefer that majority view. To a significant extent the minority do not seem to have recognised that the Plaintiff, as I have concluded, had no leg or lower back symptoms for 2 months after the 19 September incident. And there is an alternative explanation, viz. the degeneration of his spine and the consequences of his driving over rough roads that, on any view, seems to have created at least some symptoms.
In short, both because of the weight of the radiological evidence that there was no spinal cord or nerve root impingement in the Plaintiff's lumbar spine by January 2004 and the weight of the doctors' evidence I am not persuaded that the incident of 19 September caused any injury to or affecting the Plaintiff's lumbar spine or legs.
I do however accept that there was some injury to the Plaintiff arising from the 19 September incident, viz an injury to, or exacerbation of symptoms relating to his neck. Dr Korecz' contemporaneous notes refer to this and a significant number of other doctors accept that it occurred. However the weight of medical evidence is that this injury or exacerbation was for only a limited period, certainly no later than the end of 2003 or, as expressed by Dr Innes-Brown, that the impact would not have lasted until 2004.
In reaching any conclusion I have I have not ignored the Plaintiff's evidence here and complaints to numerous doctors of experiencing pain, indeed severe and almost constant pain. However in light of the number of doctors who have referred to seeing inconsistencies in the Plaintiff's conduct or reports of symptoms - prime examples are afforded by Dr Kerecz' remarks in his letter to Dr SaCardeiro and the observations of Dr Hitchen inconsistent with the constant use of crutches - my own conclusion that he was exaggerating his disability in Court and to a lesser degree his apparent non-cooperation with some of the doctors, I am unable to place a great deal of reliance on the evidence and complaints referred to at the beginning of this paragraph. The onus is on him. Once the conclusion is reached that he was or may have been consciously exaggerating it becomes very difficult to decide how much he has said is true except to the extent it is corroborated.
Pain
One issue I must address is whether, notwithstanding the relative absence of radiological signs that argue for the existence of pain causing changes to the Plaintiff's body in the cervical or lumbar regions, he is, and has throughout the period since February 2002, been experiencing it. That he is certainly contemplated by Dr Kerecz and Dr Smith. The extent of the Plaintiff's purchases of opioid based medication argues in this direction, even though one might expect that, given the Plaintiff's extensive use of it, its effects are significantly less than they would otherwise have been. It is notorious that opioid users, legal and illegal, need more and more to achieve the same result.
The Plaintiff gave evidence that following the incident of 2 February 2002 he was in substantial pain, "extreme" while in hospital following Dr Stening's operation. When he returned to work his neck still "hurt like hell" even though he was then on pain-killers. He said that he has been on painkillers "always" since the 4 February incident. At the time of the incident on 19 September he was in a lot of pain, despite having taken painkillers earlier in the day and then took a whole heap of Tramal. He said he still takes painkillers, "3 times the amount as what a cancer patient takes" and at the time of trial he was taking way more tablets than he had been taking previously.
The Plaintiff gave evidence of taking a very large quantity of pain-killing or reducing medication, principally Tramal, Oxycontin and Oxynorm. He said that at the time of trial he was taking 60 mg of Oxycontin 3 times a day. He has also taken Baclofen which is a muscle relaxant, Maxolon for pain relief in the bowel and Pariet for stomach problems. He said that he was taking none of these drugs prior to 4 February 2002. He also gave evidence of commencing many of these drugs on or soon after 18 September 2002. I say more about pharmacy records below but they don't support much of what the Plaintiff said concerning this early period and seem to me likely to be more reliable than this evidence of the Plaintiff.
The Plaintiff also gave evidence of taking, on a number of occasions an opioid medication, Oradine, that was his father's and of receiving morphine injections in hospital when the pain became too high. Hospital records support attendances with such complaints.
Tendered in evidence were 2 schedules of medications supplied by the Plaintiff's local pharmacies. The schedules raise a number of questions, although there can be no doubt that they show the supply of an unusually large quantity of medications, particularly opioids in the form of Tramal, Oxycontin and OxyNorm.
Between 5 February and 23 May 2002 the Eagle Vale Pharmacy supplied Vioxx and Brufen once each, Digesic tablets on 2 occasions and Tramal Capsules on 11 occasions. Almost always they were supplied on the prescription of Dr Kerecz. That schedule contains no reference to the supply of any medications between 23 May and 19 September 2002 when the Eagle Vale Pharmacy began again to supply the Plaintiff.
Thereafter until December 2005 the schedule shows repeated supply of Tramal. The first recorded supply of Oxycontin occurred on 11 December 2003 between then and 21 January 2004. Oxycontin was supplied on 4 occasions - a total of 190 tablets. 20 more such tablets were supplied on 4 February and 120 on 5 March 2004. 60 tablets were supplied on 8 June 2004 and there was then fairly regular supply from October 2004 to May 2005 and less regular supply until November 2005.
In 2006 Tramal seems to have been supplied only once. From January 2006, Oxynorm rather than Oxycontin seems to have been supplied instead, there being 8 instances of supply in that year.
The Eagle Vale pharmacy records extend to only July 2007. From January 2012 there are records from the St Andrew's Pharmacy. In that Pharmacy's schedule it appears that between 1 February and 19 August in 2013 the Plaintiff received, together with smaller doses of other medicines:-
944 x 30 mg Oxycontin Tablets, supplied on 7 occasions
920 x 10 mg Oxynorm tablets, supplied on 6 occasions
560 x 50 or 100 mg Tramal tablets supplied on 5 occasions.
The instructions recorded indicated that the daily dose for Oxycontin was 6 tablets, for Oxynorm 6 tablets and for Tramal 300 mg - numbers broadly according with the Plaintiff's evidence.
In late 2002 and early 2003, the quantity recorded is much less:-
On 19 September 20 Digesic tablets, 1 or 2 of which were to be taken 4 times a day, were supplied.
On each of 4 October, 4, 11, 14 and 18 November, 2, 14 and 30 January, 20 Tramal tablets, 1 of which was to be taken 3 times a day but with a maximum of 8 tablets a day, were supplied
By March and April 2003, 20 Tramal tablets were being supplied every week or two.
The questioning of the Plaintiff did not descend into this sort of detail although the Plaintiff said that he went to other chemists beside the Eagle Vale Pharmacy. He also said that he saw local doctors other than Dr Kerecz who might have been away but with whom the Plaintiff said that he had communication problems.
The Plaintiff provided no convincing explanation for the gap between May and September 2002 although one can readily anticipate that for some, probably a short, part of that period he may have been provided with tablets by the hospital where his cervical fusion was undertaken. The gap provides some support for Dr Stening's statement that by 29 August 2002 the Plaintiff had little pain and his recommendation that the Plaintiff return to work, though if the Plaintiff had any pain, it seems unlikely that he gave up pain-killers entirely.
There is another gap between the records of the 2 pharmacies but I draw no inference adverse to the Plaintiff from this second gap.
Despite my reservations about the Plaintiff's credibility, the volume of medication provides not insubstantial evidence that the Plaintiff has suffered significant pain (though it also raises the question whether the Plaintiff is addicted to the opioid medication). How significant that pain is, and what events are its cause or causes are much more difficult questions. I think I must conclude that it is substantial but because of my views about the Plaintiff's reliability, I am unable to conclude it is as great or of the disabling severity that the Plaintiff has indicated.

On the other hand, whatever the level of pain is, it has led to the Plaintiff being placed on the regime of medication apparent in the pharmacy schedules. I think it improbable that the Plaintiff has simply made up all his complaints of pain to obtain that medication so that, at least in part, the regime is properly to be regarded as a consequence of one or more of the events that have occurred, being some natural degeneration of his spine, the incident of February 2002, the subsequent operation by Dr Stening, the incident of September 2002, driving over rough road or roads, and Dr Abrasko's operations. Notwithstanding the opinions of the doctors that the (physical) effects of the September incident were nil or short lived, my conclusion is that it has been a cause of the medication regime. I take the same view in relation to the February incident. While driving over rough roads may have been a precipitating event, that occurred to a spine that was still affected to some degree by both incidents. The timing of events including the advent of the medication regime argues strongly for the February and September incidents being both causal factors of the regime.
Of course recognition must be given to the evidence of the natural degeneration of the Plaintiff's spine and to the effect on that degeneration of the driving over rough roads. However again the timing of events seems to me to make it impossible to say that that degeneration and the rough roads, and perhaps a low pain threshold in the Plaintiff, are the sole causes of the medication he is on. Although dealing at the time with only the February incident, Dr Zeman said that even with surgery, complete recovery could not be expected.
Both in terms of what he told Dr Al-Sohally and his evidence here, the Plaintiff supported the disabilities and problems listed in the amended Particulars I allowed and I accept what he and Dr Al-Sohally said in that connection. The Amended Particulars were, in summary:-
"1. A requirement to frequently take doses of medication, including medication potentially addictive;
2. Autonomic nerve system dysfunction;
3. Urinary bladder problems including incontinence.
4. Constipation and diarrhoea;
5. Nausea;
6. Requirement of undergo colonoscopy procedures;
7. Upper gastrointestinal symptoms including indigestion, vomiting, pain and gastric ulceration;
8. Abdominal pain; and
9. Altered bowel (which I understand to mean stool) form with sense of incomplete evacuation."
Lest it not be clear, the autonomic nerve system dysfunction that the evidence supported was to the Plaintiff's digestive system.
In paragraph 212 I used the expression, "at least in part". I have no doubt that to some extent the medication has been prescribed in response to complaints that were knowingly false or exaggerated as were some of the complaints to doctors to whom I have referred. I cannot know the extent of truth or falsity or exaggeration in those complaints or of the degree to which the medication has been prescribed in consequence. Appreciating that the onus is on the Plaintiff, and one course would be simply to say I am not satisfied the Plaintiff has made out a case in this regard, I think that the probabilities are that he has needed some significant portion of the medication: It has disadvantages in terms of its impact on the Plaintiff and there will also have been disadvantages in terms of cost in obtaining it. In these circumstances it seems to me appropriate to allow the Plaintiff his medication costs to the end of 2003 and some portion of the cost of the medications he has obtained thereafter. Recognition must be given to the evidence of the natural degeneration of his spine which has no doubt continued and in the result I propose to allow one third of the cost of medications since the end of 2003.
Damages
Counsel suggested that this topic is so complicated that I might indicate my conclusions on many issues leaving the final determination of the verdict that should follow to a time when counsel have had an opportunity to consider my findings. I propose to do that, publishing these reasons and then standing the matter over so that that consideration can occur.
In that connection one issue that was said to arise was the question of whether the employer of the Plaintiff and more particularly Mr Whiteman had some responsibility for what occurred on 19 September 2002. Counsel have not addressed on that topic so I shall not make any final determination, even in the absence of the employer. However it is appropriate to observe that there is no evidence the employer had any knowledge that there was a defect in the truck and no evidence that Mr Whiteman had experience of the Tautliner strap being insufficiently strong to hold the door.
It is convenient to deal with the 2 incidents separately. In that connection it was suggested that damages under a number of heads should be apportioned 50/50 between the February and September incidents providing both were operative causes. This was not the subject of agreement. However, neither was it the subject of argument, counsel for the First Defendant contenting himself with saying that if that approach was adopted it should be applied to all heads of damage claimed. I think that both approaches are reasonable and they should be used generally where both incidents contributed.
It was accepted on behalf of the Plaintiff that s 151G of the Workers Compensation Act meant that no damages could be awarded for non-economic loss arising in consequence of the February 2002 incident. It was agreed by both parties that the Plaintiff's loss of earnings should be calculated on the basis of $620 per week.
For economic loss from 4 February to 18 September the Plaintiff claimed for 32 weeks. The Defendant contended that the loss of income was for only a little of the time prior to 17 March and the loss ceased a week before 18 September. Twenty six weeks was conceded.
Dr Kerecz's notes indicate that generally he noted when he issued a medical certificate. His notes suggest a certificate for only a week off prior to 17 March. The Plaintiff's evidence does not suggest he had all of the time between 4 February and 17 March off. His evidence also indicates he returned some time before 19 September. Accordingly I will include an amount for past economic loss for 26 weeks.
The Plaintiff also claimed for the period from 19 September 2002 to date. The weekly loss was estimated at what I was told was an agreed figure, viz. $750 net, only 50% of this being claimed in respect of the February incident.
After the 19 September incident, the Plaintiff was off work until 9 October - a period of 3 weeks. His next period off work commenced on 18 November and was precipitated by driving over the rough road although, given that there was no suggestion this had been a problem previously, it seems reasonable to infer that driving operated on a neck made susceptible by the combination of the prior incidents. In these circumstances it is appropriate the Plaintiff be compensated for that further period off work. I have already indicated that I accept that the effects of the September incident, save and except for some pain and medication would have ceased by 2004. I accordingly propose to include in the Plaintiff's damages an amount for past economic loss for the periods mentioned and extending to 31 December 2003. Again it seems appropriate to allocate half of this to each incident.
The question then arises whether pain, and the consequences of the medication the Plaintiff is on have precluded him from working after that time. I am not satisfied that they have and again feel forced to that conclusion because of my distrust of the Plaintiff's reliability.
Subject to one matter, I am not satisfied that the Plaintiff is entitled to any further amount for past economic loss or for future economic loss. However, I accept that the injuries to his neck have probably increased the potential for further disablement. There was no specific evidence as to this and I am not persuaded the increase in potential is other than small. I propose to allow a cushion of $50,000, the equivalent of about 18 months (undiscounted and superannuation free) earnings. In light of s 13 of the Civil Liability Act I should say that but for his February and September 2002 injuries it is most likely that the Plaintiff would have continued to earn as a truck driver or at a comparable income level. There is no evidence that would permit me to determine the percentage possibility that, but for the Plaintiff's injuries, he might have suffered further disablement in any event. I accordingly assess that possibility as zero.
The parties are agreed that the allowance for superannuation should be calculated at the rate of 11%.
There is a claim for past gratuitous domestic assistance calculated at 22 hours per week at $20 per hour for 11.15 years (a period that might need adjusting given the period since the conclusion of the hearing). There is a claim for future such assistance calculated at 1 hour per day, 7 days per week, at $43 per hour (described as the Homecare rate) for a life expectancy of 43.46 years.
Counsel for the First Defendant has drawn attention to s15(3) of the Civil Liability Act that imposes a threshold for an award of damages under this head of 6 hours per week for a continuous period of 6 months. I am not persuaded that the Plaintiff was ever so badly injured that he needed assistance of this nature, certainly to an extent that satisfies the threshold. Nor am I satisfied that he needs it for the future. Accordingly there will be no damages under this heading.
A Fox v Wood component of $4,864 was an agreed amount. It was accepted it cannot be awarded twice.
It was agreed between the parties that past out-of-pocket expenses totalling $35,021 had been incurred. A schedule setting out the calculation of this sum was provided. There was however no agreement that this amount was properly incurred. As I have said, I would allow the Plaintiff his medication costs up to the end of 2003 and one third of the cost thereafter. I think that he is entitled to recover some medical and radiology costs after the end of 2003 for although I think the physical effects of the February and September incidents ceased by then, I accept that the Plaintiff still suffered pain in the areas affected by those incidents and was reasonably entitled to have that pain investigated.
What I have said in the immediately preceding paragraph does not deal with all of the individual matters included in the $35,021 claim but hopefully I have said enough for counsel to be able to deal with the detail.
Future out-of-pocket expenses were claimed in an amount of $75,000. The foundation for this claim was an estimate of such expenses provided by Dr Ellis in his report of 17 June 2009 to which was applied a multiplier of 938.2 in recognition of the Plaintiff's life expectancy. In fact Dr Ellis' figure was $4000 per annum and "approximate" and covered "further consultations, treatment at a pain management clinic, further radiological investigation, (and) rehabilitation efforts". Given the Plaintiff's attitude to pain management programs, it is by no means probable that he will have any future involvement with such clinics, nor is it obvious that there will be any point in more than, at the most, very rare radiological examinations. There is nothing to suggest he will participate in rehabilitation efforts.
I have no doubt that some of these activities would be useful to him but given my assessment of the likelihood of them being pursued, I would allow, by way of a cushion, only a few thousand dollars for them.
An alternate foundation of $60 per week was suggested. I was informed, without dissent, that this figure is derived by averaging the sum of $35,021 over the period from 4 February 2002 to the time of hearing. Again because I am not persuaded that the effects of the February and September 2002 incidents have not resolved, I doubt if the Plaintiff is entitled to anything more under this heading.
In the case of the September incident a question arises whether damages are to be assessed under the Civil Liability Act or the Motor Accidents Compensation Act. The question has been answered by what I have said above when considering the liability of Allianz. The Plaintiff's claim in respect of the September 2002 incident falls to be assessed under the Civil Liability Act.
Section 16(1) of that Act provides that no damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case. The evidence that the injury suffered by the Plaintiff in September 2002 was no more than a temporary aggravation - lasting not longer than 31 December 2003 - of the prior injury to his neck argues that the severity of the Plaintiff's non-economic loss falls below the 15% threshold. However, one must also take account of some portion of the impact of the medication regime that I have no doubt is very unpleasant on an almost daily basis. In the result I think that the Plaintiff has just made the 15% threshold.
I believe I have said enough to indicate the other amounts of damages I am disposed to allow in respect of the second incident.
Accordingly, I will publish these reasons and stand the proceedings over for a short time for counsel to either agree on the consequences or for further argument.
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Case Title:	Craig v Toll Pty Ltd; Craig v Toll Transport Pty Ltd & Anor
Medium Neutral Citation:	[2014] NSWSC 868
Hearing Date(s):	18-21 November 2013
Decision Date:	30 June 2014
Before:	RS Hulme AJ
Decision:	Publish reasons and adjourn for orders
Catchwords:	Negligence - Motor Vehicle Accident - whether within MACA Act - damages
Legislation Cited:	Civil Liability Act 2002 Limitation Act 1969 Motor Accidents Compensation Act 1999 Motor Accidents Compensation Amendment Act 2006 Workers Compensation Act 1987
Cases Cited:	Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26 Fox v Wood (1981) 148 CLR 438
Category:	Principal judgment
Parties:	Anthony Mark Craig - Plaintiff Toll Transport Pty Ltd - First Defendant Allianz Australia Insurance Limited - Second Defendant
Representation
- Counsel:	Counsel: Mr I Barker QC/Mr J Reimer - Plaintiff Mr M Neil QC/Mr P Stockley - First Defendant Mr P Deakin QC/Mr D Petrushnko - Second Defendant)
- Solicitors:	Solicitors: Maxwell Berghouse & Ives Solicitors - Plaintiff Michael Taylor, Leigh Virtue & Associates - First Defendant McInnes Wilson Lawyers - Second Defendant
File Number(s):	2009/00297914 2009/00297915
Publication Restriction:	No