Crawley & Crawley v Anderson No. DCCIV-01-992

CRAWLEY and CRAWLEY v ANDERSON
[2003] SADC 82
Judge Lowrie
Civil
PLEADINGS

The first plaintiff, Bronwyn Crawley, who is now 51 years alleged that in May 1999 when driving her car in a westerly direction along Gordon Avenue, Clearview, and, having indicated her intention to turn right into Stafford Avenue was in effect overtaken by the defendant and the collision ensued.
The pleadings allege that the defendant failed to keep a proper lookout and failed to avoid the turning vehicle.
As a result of the accident Mrs Crawley alleged that she suffered injuries to her head, neck, nausea and a general impairment to her body movements. Medical assistance was sought and she subsequently underwent a micro-discectomy of the L2-3 level and foraminotomy and decompression of the L2 nerve root level, with much ongoing pain and discomfort.
The second plaintiff who is the plaintiff’s spouse, Dean Crawley, has sought damages for loss of consortium.
The defendant denied that his manner of driving was negligent and pleaded that at the point of overtaking Mrs Crawley’s slow moving vehicle her turn and right hand indicator were activated simultaneously. He pleaded that he had no prior warning of her intention to turn. In the alternative, he pleaded that if his driving was negligent then Mrs Crawley by her manner of driving had substantially contributed to the collision.
The defendant pleaded that, if Mrs Crawley had suffered any injuries that had affected her working capacity, then she had sufficiently recovered from the same, and, further that Mrs Crawley had undergone some three operations to her lumbar spine following an initial work injury in 1996 and if she has any ongoing symptomatology the same was due to her pre-existing condition rather than any causes related to the accident.
EVIDENCE
The first plaintiff gave evidence and called her general practitioner, Dr Rositano, and the orthopaedic surgeon, Dr Molloy. The plaintiffs also called the neurosurgeon, Dr Khera, psychiatrist, Dr Davis, and consultative occupational physician, Dr Cullum.
The defendant gave evidence and called Dr Awerbach, consultant physician and Dr McCulloch.
The plaintiffs’ counsel in opening the case said that a primary issue in this action would be the nature and effect of the prior surgery, but alleged that this accident was a new injury at the L2-3 level of her spine.
Mrs Crawley
Mrs Crawley was born in this State on 1 February 1952, married, and has two adult children. She outlined her extensive work history in her early years both prior to and following her first marriage to a Mr Famelli. She separated from her first husband in 1985 and retained custody of her children. She outlined that in 1988 she had the opportunity to travel to Queensland to be involved in a business with her sister, Carolyn, and, indeed followed that course and they operated a business for two and a half years. Because of then economic conditions they were obliged to close the shop. However, during this period she met her present husband, Dean Crawley, and married him in 1995. After the closure of the shop she was able to work in a number of areas of employment and a finding would follow that in this early period she was a competent person carrying out a range of work activities.
Mrs Crawley said that she was involved in a work accident on 28 February 1996 and suffered a back injury. On medical advice on 1 April 1996 in Queensland she underwent an operation, being a L4-5 laminectomy. Unfortunately, this operation was not successful. She underwent a further operative procedure on 27 June 1996. However, she believed that operation was also unsuccessful. Immediately following the operation she developed a bone infection and was treated over a long period because of those complications. During this time, she received some financial benefits under the Queensland WorkCover legislation.
Following the second surgery she said her surgeon suggested that there should be a further procedure and this was recommended because of her continuing chronic back pain. However, she said she discussed this at length with her husband and children and was loath to undergo any further surgery because of the results of the two previous operative procedures. It was at about this time they returned to Adelaide.
On returning to Adelaide she eventually consulted Dr Khera, neurosurgeon, about her ongoing back problems. She said Dr Khera arranged for a number of tests including a lumbar myelogram and MRI scans and, on his advice in October 1997, she entered Memorial Hospital where he performed a further laminectomy. She said it was her understanding, after discussing her spinal problems with Dr Khera and as a result of his investigations that the operative procedures in Queensland she had undergone were carried out at the wrong level.
The reports from Dr Khera show that he believed the disc protrusion had at all times been at the L3-4 level, and, not the L4-5 level as attended to by the Queensland surgeons.
Mrs Crawley said she eventually received a lump sum of about $25,000 from the Queensland Workers Compensation Authority.
Mrs Crawley said that about twelve months after Mr Khera’s operation she felt able to return to work. She did so in about October or November of 1997. She worked as the manager of a snack bar at Sefton Plaza. She said she worked at this snack bar for about 20 hours per week in the beginning, but her hours increased to up to 40 hours per week. She said her duties included the initial opening of the shop, setting out tables and chairs as the snack bar seated about 60 people, attending to ordering, serving and the general management conduct of the delicatessen business. She described it as a very hands-on job. As the manager she had nine employees under her control.
Mrs Crawley said she would arrive at the shop at about 5.45am each morning, attend to the opening and placing of tables and her first customer would arrive at about 7.00am. She said she carried out this employment without any difficulties up until the date of the accident.
Mrs Crawley said that during this time she would occasionally see her general practitioner, Dr Rositano, because she still had “some little niggles in the leg, so I have some Panadeine Forte, but, other than that, no”. She was then asked:
"QAre you able to tell his Honour about how often, in this period you were working at the snack bar up to the time of the car accident, you were taking medication, on a weekly basis.
AYes, I was taking Panadeine Forte, sometimes two a day, sometimes more a day, sometimes none a day. It just varied on -
QIf you took the Panadeine Forte, did that allow you to continue on, or did you have to take time off work.
ANo, I never took time off work.”
Mrs Crawley said she took some medication called Aladorm to enable her to sleep, but despite these problems she said there was never any problem with her employment or any issues raised by her employer.
ACCIDENT
Mrs Crawley was familiar with the area where the accident occurred. She described driving down Gordon Avenue, negotiating the roundabout with Colleridge Street and then proceeding in a westerly direction with the intention of turning right into Stafford Street. She said before she negotiated the roundabout she saw a vehicle travelling behind her. She thought it was a white Commodore. She believed she negotiated the roundabout at a speed of between 30 and 40 kilometres per hour and continued along Gordon Avenue slowing down her pace because “I slowed down, because I put my indicator on to turn right”. She said that she believed she indicated her intention to turn to the right as she had come around the roundabout, and then proceeded to slow down. As there was no oncoming traffic she then commenced her right hand turn. At the time of turning she believed she was travelling at approximately 30 kilometres per hour and said:
“I just started to do a turn at about 1 o’clock and, bang. There was no screeching of brakes; it was just a horrendous bang and that was it.”
She illustrated turning the car the angle being at about 1 o’clock. The car that came from the rear collided with the driver’s side guard and pushed her towards the kerb of Stafford Street and she was then able to stop her car.
Mrs Crawley said that she was wearing a seatbelt at the time of the accident and although rather shocked she was able to telephone her son who arrived a short time later and assisted her from the scene.
Mrs Crawley said after the accident she had pains from the shoulder region at the back of her head. The following morning she was stiff and sore with continuing pain “between the shoulder blade” and as well the onset of a headache. She said her back was sore, but she thought this may have been due to the stiffness. She went to work. However, by the time she returned home on that day her back was very sore and, two days after the accident, she sought the assistance of her general practitioner, Dr Rositano. He directed that she undergo a spinal x-ray and he gave her some antiinflammatory medication as well as a sickness certificate from work for a two-week period. However, she said she did not take time off from work because of her commitment to the owner, Mr Talladira. However, in this time her husband, Dean, assisted her with her working duties including attending at the snack bar and doing the heavy work of opening roller doors and placing of tables in the required areas.
Mrs Crawley said at some stage after the accident Dr Rositano arranged for her to have a series of pethidine injections. She felt these commenced about six weeks after the accident. She had similar injections in Queensland for her back condition. She was asked:
"QDo you remember, before this accident, when the last time was that you had pethidine.
AWhen I first started back at work and then all the drugs start tapering off.
QWhen you first started back at work, after Dr Khera’s operation.
AYes.
QAnd before this accident, to when was the last time you would have had an injection of pethidine, can you recall.
ANo, it was quite a while ago. I can’t recall.
QIn terms of months.
AIt would be months, yes.”
She said it was at this point of time that Dr Rositano referred her to the consultant physician, Dr Cullum. By the time she saw him she said she was in much pain. After conferring again with Dr Rositano and because of what she described as “chronic pain” she was referred to the neurosurgeon, Dr Cindy Molloy, on 20 October 1999. Prior to this appointment she had stopped working in September 1999 because of problems with a swollen leg and ongoing pain.
She said MRI scans took place on 10 September 1999 and 13 October 1999 and said on 21 October 1999 she received a L2 foraminal injection in her spine. After the results of these investigative procedures were known and discussions with Dr Molloy she then decided that she should undergo a L2-3 micro-discectomy and foraminotomy to decompress the L2 nerve root. Mrs Crawley said after she came out of the anaesthetic the pain in her back and groin and buttocks had gone, but she still had pins and needles and twinges in her leg, “but compared to what I went in there, I was 100%”, in effect pain free. She said she got up and walked around the same day she had the operation and was able to carry out shower and toilet duties.
Unfortunately, at about this time Mrs Crawley discovered a lump in her breast. She sought the assistance of Dr Rositano and then underwent breast surgery as well as reconstructive surgery, which were carried out in April 2000.
Mrs Crawley explained that following the rehabilitation period after the Molloy operation she endeavoured to get back to full-time activities but found that she could not carry heavy loads and was unable to carry out other household tasks. Before this period she could carry out the sweeping, vacuuming and mopping tasks, but is now unable to carry out those household duties.
Mrs Crawley said that she had also had difficulties with her weight following the accident. Before the accident she weighed about 55 kilograms, which subsequently went up to 75 kilograms and now she believes is in the area of 67 kilograms. A lot of this was due to the fact that she was unable to carry out any active exercise programme. Before the accident she said she prided herself as being a rather happy go lucky zany person who laughed a lot, but now she is very much a shell. Although her friends visit her she does not go out for dinners, as she cannot sit long enough. She takes medication for sleeping and particularly for her leg pain.
Mrs Crawley confirmed she had attended the psychiatrist, Dr Davis, because she felt she had a vehicle phobia.
Mrs Crawley said that she missed work. She had always been active often working three jobs at a time to support her children, particularly as finances were in many periods very tight. She was able to put her son through university, as well as her daughter’s university education.
She also explained that the accident had a very significant effect on her personal life with her husband. She felt that part of her life was closed.
In cross-examination, Mrs Crawley admitted that before Dr Khera’s operation she had had some problems with her left leg.
Early in cross-examination it was apparent that Mrs Crawley, from her admissions, had received over a long period of time a substantial number of pethidine injections for back, leg and groin pain. She initially received the same in 1996 because of the onset of her Queensland back problems. She admitted that the injections continued in 1997 and then when she had returned to South Australia. It was then put to her:
"QI will put it to you very broadly so that his Honour knows where this is heading: you continued to have pethidine injections on a regular basis right up to the motor vehicle accident for back pain and leg pain, did you not.
ANo, after Mr Khera did the third operation, no.
QWhat do you say your pethidine usage was after Dr Khera had done the operation.
AI couldn’t say. Very little.
QWhat would you call ‘very little’.
AMaybe one. I don’t really recall.
QThis is very important and I will ask the question again because it has been a few years since the motor vehicle accident. From the time Dr Khera operated on you, which I think was some time around the middle of 1997, did you continue to have regular pethidine injections up to the time of the motor vehicle accident.
AI honestly do not recall. I was working at the time and I had been working for 18 months and -
QIsn’t this the case: you continued to work only because you were receiving pethidine injections. That’s the only way you could cope with work.
AI don’t recall that.
QDo you want to think about it. We’ve got Dr Rositano’s notes and I will take you through them in a minute. Do you want to think about that last answer.
AI honestly don’t recall.”
It was then put to her again:
"Q11 July, I suggest you were having pethidine at the time that you were working at the Sefton Plaza; you were having regular pethidine injections.
AI have having regular pethidine injections?
QYes. You deny this, do you.
AI do not recall it.”
It was apparent from the general practitioner’s notes, which had been subpoenaed, that the same revealed a long period in which Dr Rositano had prescribed pethidine for Mrs Crawley. She was then asked:
"QMy proposition to you is that you had pethidine constantly, on a regular basis, for the years leading up to the motor vehicle accident; it just didn’t stop.
AI’m sorry, I don’t recall it.”
What was apparent from those notes was the fact that regular pethidine was being prescribed even a matter of five days before the motor vehicle accident.
Mrs Crawley admitted that following Dr Khera’s surgery she felt that the pethidine injections had assisted her, but she had fairly well chronic pain in her leg and buttocks, which required continual attendances on Dr Rositano with continual prescriptions, amongst other things, of pethidine.
Mrs Crawley’s taxation returns for the year ending 30 June 1999 showed that she had earned a sum of slightly over $17,000, but she had not filed a tax return for the following year, as she was then not working. However, she did admit that she worked between the period July and September 1999.
There was a slight delay in the production of the medical notes of the locum service that had attended her in the years 1997 to 1999. After such records were produced, I permitted Mrs Crawley to be further examined on those records. Also in this time Mrs Crawley had herself perused the records and they showed from about May 1997 through to December 1998 a period of approximately 18 months there were about 170 calls by locums to her house, and almost invariably, such attendances were for the purpose of administering pethidine injections. Mrs Crawley said despite that she did have her own supply and this was in the main from prescriptions provided by Dr Rositano, which enabled her to have three or four ampoules of pethidine at her home. On many occasions the symptoms were alleged to be back and neck pain.
Again the records show that from about January 1999 up to the date of the accident there were in excess of 20 attendances on the locum service, the majority for back pain with resultant pethidine injections. Questions were then asked:
"QAt the time of the motor vehicle accident, do you think you were addicted to pethidine.
AI have had a lot of pethidine for a lot of medical problems and chronic pain. I had a lot of pethidine for my leg, for the nerve. When I was working, I stretched, I pulled, I did everything to that nerve, but I kept working, but I still had pethidine.
QThe question was very simple.
AAm I addicted to pethidine?
QWere you, at the time of the motor vehicle accident, in your view, addicted to pethidine, or narcotics generally.
AIf I was addicted to pethidine -
QIs the answer ‘No’.
AI would not have been able to come off of it. I haven’t had any for two years.
QI’ll ask the question again and it is either a yes, or no, or you’re not sure. There are really only three answers to this question. At the time of the motor vehicle accident, do you think you were addicted to pethidine.
ANo, I don’t.”
Mr D Crawley - Spouse
Mr Crawley outlined how he met his wife in Queensland when she was operating the shop premises with her sister, Carolyn, and thereafter gradually his relationship developed with her and her children, Melanie and Anthony. He was aware of the nature of her work accident in Queensland and the subsequent operations in 1996.
Mr Crawley was forthright in his admission that he was aware that his wife received regular pethidine injections for her pain when in Queensland and often perhaps as regular as a daily injection. He came to Adelaide with his wife in February 1997 and was aware that thereafter she sought the advice of the neurosurgeon, Dr Khera, and underwent a further operation in late 1997. He felt by this time his wife’s pethidine injections were slowing down, but then he remembered that she had a fall at the West Lakes Shopping Centre, which caused some concern. However, after the surgery with Dr Khera he believed her pethidine usage in his words “slowed right off”.
He said he did not believe in his observations that she suffered any side effects from the pethidine and said that she was working six days a week and working quite well, “jumping in the car and going places on the weekend”.
Mr Crawley was concerned that his wife might be becoming addicted to pethidine and also was aware that this was a concern shared with Melanie. However, he believed that before the motor vehicle accident his impression was that she had ceased her pethidine usage.

Mr Crawley was aware of the accident and took her after the accident to see her general practitioner, Dr Rositano. However, she was anxious to return to work and he would take her to work although he expressed concern because he knew that she was in pain and in his manner of observations, “you can see it in her eyes”. However, he assisted her in her employment by going with her at 6.00am opening roller doors, and lifting heavy objects to assist her as well as the general heavier duties in and about the snack bar, in fact, he did this on every day that she worked. He explained that this assistance would probably take him a couple of hours a day. He was not paid, but did this to assist his wife and as well he also attended to the shopping and cooking duties, which were shared between Melanie and him. He said before the accident his wife always did the cooking, but they shared the duties afterwards in an effort to try and help her recovery.
He was aware that there were some financial difficulties in undergoing the further surgery with Dr Molloy. However, this did take place and he felt it assisted her pain, as she seemed to have better movement almost immediately from the outset of the operation. However, he thought it was short lived. He felt that she did not become active and appeared to lose some flexing ability and believed that after this time she started to recommence her pethidine injections.
Since the motor vehicle accident their personal physical relationship has deteriorated.
Ms M Fameli - Daughter
Ms Fameli outlined her education both here and in Queensland and the nature of her present university studies. Ms Fameli was aware of her mother’s surgery both in Queensland and here and in fact at the time of her mother’s surgery in Adelaide was living with her and her spouse. She mentioned her involvement in the running of the house at the time of the Khera surgery and then stated how her mother after that surgery gradually got back to cooking and cleaning and really went back to doing everything. She was the “mum that I had before the operations, before all the operations”.
She then outlined the effect on her mother following the motor vehicle accident and how at that time the household duties were shared between herself and her stepfather and that included not only work in the home, but driving Mrs Crawley to her various appointments. Before this time her mother drove herself to various appointments.
Ms Fameli said after Dr Molloy’s operation she believed that her mother was not in as much pain as she was before. She felt that you could tell this from her face.
Ms Fameli felt that after Dr Molloy’s operation although her mother was doing basic cooking duties she certainly was not doing the things that she did after Dr Khera’s operation, like scrubbing baths, toilets and mopping floors and attending to the washing.
Ms Fameli said that she was aware of her mother’s involvement with the drug pethidine and expressed her concerns to her mother, “but it was helping her with the pain that she had”. She did notice after she had been injected that the relief from pain was quite apparent.
Ms R Scanlon - Snack Bar Assistant
Ms Scanlon was called by the plaintiffs and outlined her long period of friendship with Mrs Crawley. She eventually worked at the snack bar premises with her for approximately 23-24 hours a week. She outlined the nature of both their respective duties and the manner in which Mrs Crawley attended to those quite arduous tasks.
Ms Scanlon was aware of the motor vehicle accident in which Mrs Crawley was involved in May 1999 and thereafter she noticed changes in her work habits. She said that Mrs Crawley would ask her to lift things for her especially on Friday night closes. She used to stay back until 6.00pm to assist her with all the other heavy items of lifting involved in the closure of the snack bar.
She was asked to describe the person she was like on her return to South Australia from Queensland and she said:
“Well, in the snack bar she was probably one of the hardest working people there. I would say that she probably would run rings around some of the younger girls that worked there and she expected people to sort of have a standard and a level of work and we sort of had to keep up to that level. I think probably that had something to do with the fact that often Dominic wasn’t there.”
Then she gradually noticed the changes in her personality after the accident. She said:
“I think at first Bronwyn didn’t like to show that she had a problem, that she was in pain. I sort of got the feeling that she was, without her saying anything and after a period of time then she sort of told me that she was having problems, to the point where she felt that she wasn’t sort of an asset to the shop and that she left and as I said, I did visit her on a number of occasions at home and it actually became quite stressful to see her at different times because I could tell by her appearance that she wasn't well. You can tell when someone is in a lot of pain.”
MEDICAL EVIDENCE
Dr B Rositano - General Practitioner
Dr Rositano is an experienced general practitioner having been in private practice for some 25 years. He prepared a number of reports for the plaintiffs’ solicitors, which were tendered in evidence. He confirmed that he had seen Mrs Crawley prior to this accident and had treated her for her ongoing problems. His treatment of her was particularly for pain relief in relation to her pre-existing back condition and also involved the administration of intramuscular pethidine.
Dr Rositano explained that when she arrived from Queensland, she had had the two operations within a space of 6 weeks and had then received pethidine for her pain relief. When he first saw her she was still having ongoing problems from the Queensland operative procedures. He eventually decided to seek a further opinion and referred her to Dr Khera and surgery was then undertaken. He felt in the postoperative period he was concerned for her. As he outlined, she had had three operations in just over a year, which had left her with a “lot of pain, a lot of scarring and said that he believed she was allergic to powerful analgesics, and we were only really left with pethidine”.
Dr Rositano said he believed after the Khera operation that he did see improvement in her range of movements. She advised him that her range of movements had improved. However, she still had leg cramps, but they were less frequent and her back pain had improved, but said, “she still needed pethidine on reasonably frequent levels, but not to any undue level” to cope with her pain problems.
He said in this time he had referred her to the pain clinic, however, in all this time he believed that she in any way presented with any dishonest or deceptive form of presentation about her problems.
He said he was aware of this current accident and following that the problem with the breast cysts.
He said he was aware that he had endeavoured to make an attempt to provide alternate painkilling medication rather than the continual prescriptions of pethidine.
He was also aware that she had been referred after the accident to the neurosurgeon, Mr Oatey, then subsequently, Ms Molloy, and then underwent the surgical procedures on the L2-3 nerve root encroachment.
Dr Rositano viewed her prior to the motor vehicle accident as coping with her work and he was surprised because he was aware of the physical demands of such work, but believed she needed pethidine to cope with her employment. However, since the accident, he believed that she would have to be very careful in the nature of the duties of that employment and would only be suitable for light or sedentary type duties.
In cross-examination Dr Rositano agreed that after the surgery of Dr Khera and before the accident she required ongoing pethidine injections to cope with her pain issues by probably fortnightly visits to his surgery. However, he said at no time did he believe she had a pethidine dependency. He outlined also a large amount of opiate medication that was prescribed in this time and agreed that her ingestion of medication prior to the accident was on a very regular basis. He agreed that the plaintiff did have in the scale of seriousness of back injuries very severe back pain leading up to the motor vehicle accident, and, indeed the current accident had certainly exacerbated that underlying pain condition.
Dr Rositano confirmed that when she consulted him immediately after the accident the symptoms that she then reported were not new, i.e. she had previously had back pain radiating to her legs as well as neck difficulties, neck soreness, pins and needles in her left hand and her left foot. Dr Rositano also said that he was concerned when she first advised him that she had taken up her employment. This did worry him as he felt the time was coming when he would have to take her off the opiate medication, which could not go on indefinitely. Indeed, when he took her off that medication whether she could cope with work would be very problematical.
Dr Rositano in answer to a general proposition felt that because of the nature of the lumbar surgery there was no doubt the pain would continue.
Dr S S Khera - Neurosurgeon
Dr Khera performed the operative procedures on Mrs Crawley on her return to Adelaide. He briefly outlined in his reports the background material particularly the nature of the two operative procedures on her back in Queensland. He confirmed the manner in which she had been operated on the L3-4 level as distinct from the lower level which operations were conducted by the Queensland surgeons.
Dr Khera explained that after he had undertaken a radiological assessment he conferred with the radiologist, Dr Gerald Fon, and in their opinion Mrs Crawley’s problem was in the L3-4 nerve root level, which had simply been missed by the Queensland practitioners.
Dr Khera was aware that after his surgery Mrs Crawley returned to work to manage the snack bar, however, he viewed that work could only be carried out with certain limitations. He believed his advice was in his words, “see if you could go back to work, but be careful”, and, indeed he would give her that same advice today.
Dr Khera was not aware of Mrs Crawley’s pethidine addiction.
Dr C Molloy - Neurosurgeon
Dr Molloy is an experienced neurosurgeon and gave evidence of her treatment of Mrs Crawley. For the purpose of this case she had prepared some seven reports dated 2 October 1999 to 15 June 2000. Dr Molloy outlined that she was aware of the procedures that had been undergone by Mrs Crawley in regard to her work accident in 1996 which concerned the L4-5 level of the lower back and the history that Mrs Crawley gave was of having headache, neck pain and pain between the shoulders following the accident. MRI investigations revealed that there was a left sided disc protrusion of the L2-3, L3-4 and L4-5 levels. That MRI scan was carried out on 13 October 1999 and she subsequently conferred with the radiologist concerning this finding.
Defence counsel had intimated that it was not suggested that there was anything inappropriate about the operative procedures of Dr Molloy. The question was whether it was pre-existing or in relation to the motor vehicle accident.
After the operation she said Mrs Crawley had advised her that she had a marked improvement to her lower limbs and groin pain, but her back pain had not improved significantly.
Dr Molloy believed that in a short note from the referring general practitioner there had been mention of some intramuscular pethidine administered because she was aware that Mrs Crawley was in much pain. Dr Molloy was advised, as appears from the general practitioner and locum’s notes, that in about the 18 month period prior to the motor vehicle accident, Mrs Crawley had approximately 175 attendances for an injection of intramuscular pethidine, and, probably on an average of every second day as well taking codalgin forte, and indeed, maintained that level of medication after the motor vehicle accident for approximately 18 months to two years. She said that opiate medication did not change the views of her report. However, Dr Molloy said that she did not expect, because of the nature of pethidine, that it would assist with her groin and anterior thigh pain because it is a reasonably short-acting drug of some two to four hours benefit.
Dr Molloy said that she was aware of the nature of Mrs Crawley’s prior work as an active manageress of a snack bar and all of the associated lifting and physical work that position entails. She believed now that Mrs Crawley has a 20% impairment of her lumbar spine in relation to the recent L2-3 disc surgery, and, she should not at this stage lift anything more than 5 kilograms or have a job where she was obliged to sit for long periods of time, in effect, she was now only fit for sedentary type duties.
Dr Molloy agreed that she did not have any history from Mrs Crawley of any back problems prior to the accident. She was asked:
"QThe fact that you now know that she had hundreds of attendances, wouldn’t that make you just a little bit interested in what she was seeking the pethidine for.
ASure, but I had a history of - she didn’t have any thigh pain before the car accident and she did now, and I could clearly seen an L2/3 disc protrusion on the MRI scan. Even if I still had that history, I would have gone ahead and done the surgery. I might have crossed my fingers a bit more, but I would’ve done it.”
Dr Molloy confirmed an attendance on her in February 2001 was after the surgery and she had noted that Mrs Crawley:
“In February 2001, I’ve written ‘Back okay, legs okay, niggling pain and paraesthesia of the leg’ - that’s the lower limb below the knee - ‘back, she has twinges on the legs, given up vacuuming, sweeping, ironing and work’.”
Dr Molloy believed that history to be accurate and was happy with that result. However, bearing that in mind, she felt that Mrs Crawley could not go back to work in the snack bar because that would entail a reasonable amount of lifting of heavy objects.
Dr Molloy agreed in cross-examination that Mrs Crawley may well have had a degenerative L2-3 disc but before the accident coped with her work. This disc had become symptomatic since the accident, and, the motor vehicle accident had exacerbated that underlying condition as opposed to actually causing the disc protrusion. There was a possibility that, had the motor vehicle accident not intervened, in time she may well have reached a point where an operative procedure was required on the L2-3 level.
The final questions in cross-examination were of some moment when Dr Molloy was asked:
"QLikewise, she would be unlikely to fabricate the distribution of the L3. She couldn’t fabricate the reflex and things like that.
ANo, I would’ve expected her to be able to do that.
QWhat we have, at the end of the day, is this: we have a GP, Dr Cullum, the reports of Dr Cullum and then Dr Oatey, all of whom have not obtained a history and a clinical examination which would lead to an L2 problem.
AYes.
QBy the time she comes to you, she has.
AYes.
QAnd you find it on the operation.
AYes.
QWe get back to the same point. I suggest, on that history, that would indicate that the motor vehicle accident played almost no role in the development of her L2/3 problems.
AI already said that a motor vehicle accident can cause a disc injury and the disc bulge much later on, so I’m not happy to accept ‘no role’.
QDo we take it that the longer you get out and the more examination you have, the less likely it is to be related to the motor vehicle accident.
ANo, because a disc injury can happen some months - the disc bulge can happen some months after a disc injury, so I accept there are alternative explanations. I would still consider the motor vehicle accident is a possibility.”
Dr D Cullum - Occupational Physician
Dr Cullum had attended Mrs Crawley and provided her solicitors with two reports, the initial being 26 October 1999 and most recently 20 March 2003.
Dr Cullum is a person who takes very lengthy histories and, as well, reports in detail concerning his consultations. Dr Cullum said it was obvious that Mrs Crawley had had multiple back surgeries before the accident but still returned to work. She would hardly likely be pain free and carry out that work and viewed that she was basically struggling through her work as well as receiving intramuscular pethidine injections. However, Mrs Crawley’s continual use of pethidine did not alter his views that he had reached in his letters of report that because of the history of multiple level discogenic change clearly she had a significant pain disorder.
Dr Cullum spent some time outlining the nature of work he believed she could now carry out as a result of her four operative back procedures, and, her degenerative spine. Although he was aware of the nature of her snack bar duties and her cessation of work he felt that if he had to make a preemployment assessment he said he would comfortably fail her. Clearly, she was not able to sustain long-term employment in that environment. He was asked:
"QThe fact that she had three prior back operations and that she was carrying on this work at the snack bar, and I ask you to assume that she carried on the work at the snack bar without any great restrictions, without any significant time off work prior to the motor vehicle accident, but with that level of pain management - the intramuscular pethidine, as I’ve described, and taking medications such as Codalgin Forte - does this motor vehicle accident in your view have any effect on her functional capacity.
AI think it’s the straw that broke the camel’s back to use an analogy. The patient has been working well beyond her capacity for some time, well before this recent incident. That could well be an explanation why she was taking large amounts of analgesics. She simply worked because she had to. She had an accident which was something that tipped her over; she was no longer able to cope with a position that was unsuitable for her and, as a consequence of that, has had yet another surgical procedure and, in my view, she would be unwise to return to that type of work. People do do work they are not suited to do, but it’s medically unwise for her to have done that work.
QYou gave some evidence about how you would see this lady’s future treatment management if you were placed in that setting. Can you assist the court to give some idea as to the cost of that treatment regime.
AI think the patient has a number of issues that she needs to work through. I would suggest that there is still the case for some psychological involvement; 10 visits would be more than enough, probably, but at $135 a visit, so you need to allow about $1,500 for future psychological costs. She might need to have some involvement with a psychiatrist who specialises in pain management; there are one or two around. Most of that is covered through the Medicare system, but there would be some gaps there. I think active physiotherapy with hands-on physiotherapy is very unlikely to make, I think, any difference. A full pains TENS unit might be worth looking at, that’s $400 she would need to have. I would ideally like to look at her posture; for that we use occasionally a Feldenkrais physiotherapist, which is not looking at hands-on treatment but more how the patient moves. 10 visits with a physiotherapist for that might be worth something considering. Other than that, management by a general practitioner.
QThe physiotherapy management which you’ve suggested, what, about $400 worth, something in that order.
AYes, about $35 a visit.”
In cross-examination Dr Cullum admitted there was a possibility that given her three laminectomies she was struggling with her work and was possibly a prime candidate to injure herself at work. Dr Cullum was particularly asked as to whether Mrs Crawley’s L2 level problem was due to general ongoing degeneration of her spine rather than relating that issue to the motor vehicle accident. He answered:
“It could be. I’m saying the situation is that the patient has a vulnerable back, she had multiple level disc degeneration, clearly residual impairment of her lower back, well before the motor vehicle accident; in other words, we have a lady who had a vulnerable back and then had another event, she then gives a history of marked aggravation of her back pain. So whether it’s - to me, it seems it’s probably that the symptoms were aggravated by that traumatic event, and that’s for other people to determine.”

He further commented:
“I think the entrapment of the L2 nerve root was subtle. The disc bulge has got to move barely a millimetre to touch the nerve. The patient’s symptoms continued and she had a traumatic event or a vulnerable back and I think that anatomically and diagnostically she was difficult to pin down. An extremely experienced neurosurgeon didn’t make the diagnosis, an equally experienced neurosurgeon, in fact his partner, sorry, did make the diagnosis, and gave, in my view, appropriate treatment.”
Dr A Davis - Psychiatrist
Dr Davis attended Mrs Crawley and provided her solicitors with his detailed report of 19 April 2001. He was not aware, as his notes reveal, of the detailed nature of the pethidine addiction of Mrs Crawley. Dr Davis was asked:
"QWhen she saw you, you got the history - we’ll go to it now - that really, life wasn’t too bad for her, given the fact that she had so many operations; is that putting it in a nutshell.
AYes, I must say that was the theme.”
Dr Davis agreed when told the details of all the attendances upon both her own general practitioner and the locum service for pethidine that it all points to the fact that Mrs Crawley had a considerable dependence on pethidine, both a physical and psychological dependence.
DEFENDANT’S CASE
The defendant gave evidence and as well called two medical experts, Dr Awerbach and Dr McCulloch.
Mr J G Anderson - the Defendant
The defendant is now 48 and has been driving since the age of 16. He is very familiar with the area where the accident occurred.
The defendant on this day was driving to visit his brother’s motorbike shop. He was driving a white VL Commodore and was proposing to drive down Somerset Avenue and eventually work his way through various streets to Main North Road to enable him to travel to Salisbury. The defendant was asked what lead up to the collision and he explained:
“When I left mum and dad’s house, I headed in a northerly direction and I crossed two roads before I got to the intersection of Gordon Avenue, and when I came to that intersection I think that I gave way to Mrs Crawley because I turned left onto Gordon Avenue and I was right behind her, and then I followed her for about 300 metres or so down through two intersections - the second one, I think was High Street - and there was a roundabout there, and when I thought it was safe to pass her - she was going very slow, she was going at about 35 ks - when I thought it was safe to pass her, I pulled out to pass her, and my car sort of was slightly behind hers to the right of hers when I first saw her indicator, then I thought ‘oh shit’ and I went for the brakes. I think my car skidded, but she turned virtually straight after that, and I couldn’t avoid her and then we had an impact sort of going in the same direction, but a very mild impact, and my car - we deflected and I hit the gutter and I stopped with my front wheels on the footpath, and she stopped pretty much in the centre of the intersection.”
The defendant felt that the front left fender and headlight came into collision with approximately the middle of the driver’s side of Mrs Crawley’s vehicle.
The defendant explained that when he came into Gordon Avenue he had been travelling behind Mrs Crawley and said that she was driving “pretty slowly”, probably in the area of 35 kilometres per hour and he was probably a couple of car lengths to the rear of her car. They both then proceeded in a westerly direction along Gordon Avenue. He said that he decided to overtake her because he had a clear line of sight and certainly there was no indication that she was going to turn to her right. He was in the midst of this overtaking, he said:
“.... I was going a few ks faster than her because I had accelerated, and the front of my car was level with the back of her car was when I noticed the back of her car and I braked, and I couldn't avoid her.”
Mr Anderson admitted that he did not use his indicator before he proceeded to overtake Mrs Crawley’s car.
Dr M Awerbach - Consultant Rheumatologist and Pain Physician
The defendant also called Dr Awerbach, consultant rheumatologist and pain physician. Dr Awerbach has a background experience in pain clinic work since 1981 and is the medical director if the pain management unit at Memorial Hospital.
He initially saw Mrs Crawley on referral from Dr Khera in 1997. His report of 8 August 2002 outlined the history of her past operative procedures. He confirmed the nature of the laminectomy procedures in that it is a surgical procedure in which a piece of bone which forms the posterior portion of the spinal canal is excised to enable the operating surgeon access to the nerve root for the purpose of decompressing the root and freeing it from being pressed on by discs.
Dr Awerbach expressed his view of the need for surgery at the L3-4 level, which he understood, was carried out by Dr Khera.
Dr Awerbach saw Mrs Crawley in 2002 and obtained details of the motor vehicle accident and as well the manner in which she endeavoured to get back to work. He expressed his view that he was concerned as to whether her then ongoing problems were solely due to the motor vehicle accident. He commented on this particularly after his revision of his earlier report:
“I think it would make me a bit more circumspect in saying I’m absolutely certain that it was provoked by trauma of the accident. I would be more circumspect. I don’t think it excludes it entirely but I would be circumspect.”
He did agree from her history to him that she had had a normal pattern of recovery after the Khera surgery and the onset of groin pain on the historical factual basis was happy to accept it as most likely to be related to the motor vehicle accident at the L2-3 level.
Details of Mrs Crawley’s pethidine addiction was mentioned to Dr Awerbach particularly that she probably had at least 200 administrations in the 18 month period prior to the motor vehicle accident and was asked if this made any difference in view of the history that he had taken from her and he answered this in the following way:
“Well, I think, firstly, it serves to indicate that she was a woman who suffered from chronic pain, or alternatively, she was a person who was exhibiting opioid seeking behaviour. In other words, pain was not really the issue but the need to continue to have pethidine was. That is one of the difficulties that doctors have in managing chronic non-cancer pain in people who are on opiates, particularly where the pathology is unclear, it is difficult to know whether the seeking of the medication is pain-driven or addiction-driven.”
The following question was also asked of Dr Awerbach:
"QDo we get to this position: that we know that this lady, prior to May of 1999, had degenerate disc L2/L3, amongst others, that it could be the case that what we are seeing 16 weeks after the motor vehicle accident is part of the natural degeneration process at work.
AYes, and I think there’s another aspect too. I mean, if you have somebody who’s having a lot of analgesia, even if that analgesia is being sought because as a consequence of that analgesious, there would be no, if you like, protective messages coming. Normally, if you have a back disorder you have pain, so in a sense, you protect yourself by doing less, by not bending suddenly or twisting suddenly. If you fill somebody to the gills is analgesious and they have a degenerate back, you are going to find themselves not having this protection of pain and doing all sorts of things with a real likelihood of exacerbating the underlying condition.”
Dr G McCulloch - Neurosurgeon
The defendant also called Dr McCulloch, a neurosurgeon, who had examined Mrs Crawley at the request of SGIC. He saw her in November 1999. Obviously Dr McCulloch was not in agreement with Dr Molloy and was asked the following:
"QNow assuming for the moment that Dr Molloy found a protrusion at the L2/3 level on operation, one assumes she saw that, that’s in her reports, does that necessarily follow, given this lady’s history, that the motor vehicle accident was the cause of that problem.
ANo, not at all.”
He was then asked:
"QCan we take it it follows that it’s likely that given the state of this lady’s back, the condition of her back and the operations she’s had, that before the motor vehicle accident she may well have had problems with the L2/3 disc.
AYes, I think it’s almost inevitable that she indeed did have pathology at that disc.
QThe investigations and the operation by Dr Molloy have uncovered pathology in that disc, but it’s causation remains, I won’t say a mystery, but clouded.
AYes that’s a fair comment. Although in answering that question one must bear in mind that I personally doubt very much there is any significant radiological abnormality in the L2/3 disc as I expressed before.”
I then asked him:
"QYou disagree with Dr Molloy.
AYes, I’ve viewed the X-rays; I can see no significant abnormality there. The X-ray report does not show any abnormality at that level. Now, as I understand it, she has had the X-rays reviewed with the radiologist.
QShe talked to Dr Fon, with the neuroradiologist, didn’t he agree.
AI’ve seen nothing in writing.
QShe said he did.
AI don’t know.
QIf she says he did, you say he’s wrong as well.
AI have looked at the X-rays and looked at them in hindsight, I can see no abnormality.
QYou say that was not apparent some disc protrusion.
ANot to me.
XN
QIf she said she saw it at operation -
AI don’t know what she says it was there at operation, if she says it was there, it was there.
HIS HONOUR
QIf she says it was there that would confirm what she saw on the X-rays, if she interprets them that way.
ADepends on what degree of abnormality was present, operative findings can be somewhat puzzling. You can look at operative findings in a somewhat biased fashion, I simply don’t know. To be quite frank I don’t know that -
QDid you look at the MRI scans
AYes.
QYour view was the same of those.
AYes, it was, yes.
........
XN
QYou examined her and formed some clinical judgments on your findings prior to Dr Molloy operating.
AYes.
QJust based on those clinical findings did you see a need to operate.
ANo, I could really not see any indication for surgery, there was some non-organic findings which, in my experience, is always a bad feature in regard to the benefit from surgery. As I’ve said already, I could see no abnormality on the MRI scan at the L2/3 level and the third factor which has now become apparent was a fairly heavy use of opioids which is again a bad prognostic feature.”
CREDIT
The substantial blemish in the evidence of Mrs Crawley was her reluctance to admit to this clear longstanding pethidine addiction. She may well be ashamed to make such admissions. However, having said that I do not believe she was endeavouring to do other than to outline without exaggeration the extensive nature of her back pain, which really commenced in early 1996 and has become substantially worse until the present time. What is appalling is the negligent way that she received operative care in April and again in June 1996 at the L4-5 level with little or no benefit other than the ongoing pain issues.
On her return to Adelaide with her back problems continuing she was then referred to Dr Khera, which then revealed the significant disc protrusion at the L3-4 level and the left L3 nerve root ganglion. The lateral disc protrusion at this level was apparent at all previous investigations, which in his words, “unfortunately has been missed”. This led to her surgery carried out by Dr Khera in 1997. This gives an indication of her willingness to undergo further surgery in the hope of resuming or restoring her prior active family and work life. On the one hand, one can understand her reluctance, because of the prior negligent surgery and ongoing pain, to undertake a further operation, but, she did and must be commended. I accept her evidence that the results were to her benefit. It really assisted her ongoing problems to such an extent that she was able to work by May 1998 in her managerial position in the snack bar and worked effectively for about 30 to 50 hours per week. She attended competently to her duties both in the workplace and her home. The personal downside was her pethidine addiction, but no doubt rationalised by her as a need to suppress pain and enjoy her social and work life. Her use of pethidine and analgesic medication was so extensive that it masked her ongoing pain.
In early 1999 and preceding the motor vehicle accident Mrs Crawley clearly had a very degenerative spine, to some extent assisted by her recent surgery, but no doubt not assisted by the earlier surgeries which resulted in her having a precarious work position. I have no doubt as confirmed by the surgeons that bearing in mind her age and her degenerative spine her preferable employment even at that time would be a very sedentary type position avoiding heavy lifting, twisting and bending. I very much doubt if any work therapist at that time would certify that she was fit enough to carry out the task of managing a delicatessen. However, on the facts as found she did carry out that work.
I believe the position was probably as she stated to Dr Cullum when he first examined her in September 1999 after her operation with Dr Khera that her symptoms had improved, that they were still ongoing but “the pain was not going to beat me” and although she was working “she was barely able to cope”. However, I think one must give her full credit for the manner in which she did cope in that short period of employment from.
One can only speculate that if her pethidine addiction ceased her work situation would have been then very bleak. Mrs Crawley clearly had a desire to work and may have been a super-optimist when she said she was able to return to work as she told Dr Molloy, arduous work, without any further difficulties.
Also added to her incapacity was the result from her double mastectomy. There was the issue of her being referred to the pain clinic. Her answers were misleading but she may have been underplaying her symptoms prior to the motor vehicle accident. The accident then intervened. What is apparent is that Mrs Crawley complained of the exacerbation of back pain within two days of this accident. The finding has to be that because of the prior issues with her spine this accident did clearly aggravate in a marked way her pre-existing condition. Because of the nature of her spine and numerous operative procedures the probabilities are that the L2-3 condition may well have been present, but I accept asymptomatic prior to the accident, but it was the accident that made that condition symptomatic and resulting then in the operative procedure. I accept Dr Molloy’s finding. My view is that the accident was the catalyst for her then deteriorating health, which meant that she had to cease employment.
I have no doubt that at all times Mrs Crawley was anxious to return to employment. I do not believe that her husband, Dean Crawley, and her daughter were in any way trying to exaggerate their observations of Mrs Crawley’s appearance and pain. Clearly both were concerned at her pethidine addiction. I accept that whereas before she gave the appearance of being pain free no doubt with the assistance of the injections that her disposition after the accident was one of pain. Dean Crawley felt obliged to assist her in the carrying out of her duties until the position was reached when she could not continue.
Melanie confirmed her ability to cope not only with her work, but also in the home, prior to the accident and then of the change to the worse in her observation of her mother’s attempt at household duties. Before the accident she was assisting perhaps in the house five to six hours a week, but after the accident it was more like in the region of 16 to 20 hours and duties being shared with Dean.
There is little doubt that in placing this accident to one side Mrs Crawley’s future work prospects were bleak. Her significant and deteriorating back would mean that her work prospects were limited to sedentary work, which she can probably carry out at the present time.
As Dr Cullum mentioned, there was clear degeneration and residual impairment of these areas before the motor vehicle accident.
She does have a residual capacity to work in any area where there are restrictions of no heavy lifting or twisting or like activities. This accident injury does not mean that she is incapacitated for work. The likelihood would be that in the end this degenerative spinal condition would have overtaken her no doubt genuine efforts to work, particularly when you bear in mind comments like Dr Cullum’s that in any event the work that she was undertaking before the accident were beyond her capacity.
One has to bear in mind that she underwent the lumpectomy procedures in March 2000 and then a mastectomy in mid-2000 and was no doubt receiving follow up treatment for that surgery until later in that year.
DAMAGES
Non-economic Loss
The agreed multiplier is 1560. I accept that Mrs Crawley suffered some mild soft tissue injuries, but the significant trauma she suffered resulted in the L2-3 disc herniation, which to some extent contributed to her depression and anxiety. However, the accident was causative of her L2-3 becoming symptomatic.
In all the circumstances I propose to allot the numeral 15, thus making a total of $23,400.
Past and Future Economic Loss
Mrs Crawley tendered tax returns that show as of 30 June 1997 she had a taxable income of $19,000. For the following year it shows that the income from snack bar work was $1,868 and it appears there was a lump sum payment of some $17,000 from WorkCover in Queensland. The tax returns for 30 June 1999 show the gross income from the snack bar as $17,089, and then the following year 30 June 2001 show an income of $3,000. It is apparent from this that the high water mark of her income before the accident would be seen as being a gross income of $17,000 and the incidence of tax of about $3,000, a next figure in the area of $14,000 a year.
I think this is a case where one has to do one’s best by awarding a global sum to cover of all the past and future economic loss. Bearing in mind all of the matters that I have discussed I propose to fix a total sum under both heads of $30,000.
Future Medical Expenses
An award for future medical expenses certainly cannot be a substantive sum because of all the issues involved with her ongoing care, but doing the best I can I propose to fix a sum of $1,500 for her future medical expenses.
Gratuitous Services
Her husband and daughter assisted her in and about the house and undertook the care of Mrs Crawley. The numerous attendances on doctors was undertaken by her husband. Gradually with time the need for intense help has lessened over this period. Mrs Crawley has resumed some household duties but still requires help. In all the circumstances I propose to fix the sum of $3,000 under this head.
Special Damages
Special damages have been agreed in the sum of $7,108.
Dean Crawley’s Claim - Loss of impairment of consortium
As appears from decisions such as Toohey v Hollier (1955) 92 CLR 618 compensation is confined to material or temporal loss capable of estimation in money. I accept that prior to the accident a reasonably full physical relationship existed between Mr and Mrs Crawley and that intimate conduct ceased after Dr Molloy’s operative procedures. Very much since the parties have been preoccupied with dealing with Mrs Crawley’s medical problems and so their social life has considerably diminished, but clearly Dean Crawley is a very supportive person and supportive of Mrs Crawley notwithstanding her ongoing difficulties.

Doing the best I can in all the circumstances I propose to award the sum of $5,000 under this head.
LIABILITY
The plaintiffs have submitted that most if not all the liability for the collision rests with the defendant. I accept this proposition. The defendant had followed Mrs Crawley’s certainly slow moving vehicle and it negotiated the roundabout and then probably in view of the fact that she had always intended to turn right her speed then decreased. The impact occurred between the driver’s guard and the passenger side of the defendant’s vehicle and the impact occurred slightly on the incorrect side of Gordon Avenue.
The fact of Mrs Crawley’s slow moving vehicle should have alerted the defendant to the obvious probability and/or certain possibility that the driver was intending to turn right. I believe Mrs Crawley did indicate her intention to turn right, but the defendant said “at a time when she was either commencing or into her turning right manoeuvre”. Even accepting that the signal was given late in the driving clearly the defendant must be criticised for the manner in which he overtook this slow moving vehicle.
On the other hand Mrs Crawley may well have been preoccupied with her turning manoeuvre but this does not excuse her from not observing the close proximity of the defendant’s car in her side mirrors. However, in any event, it seems the defendant was even at that stage committed to overtaking the slow moving vehicle without any caution being shown on his behalf. That measure of defensive driving principles as in Stoeckel v Harpas (1971) 1 SASR 172 was clearly absent from his driving.
In all the circumstances I consider that the liability should be 75%. Mrs Crawley should only bear some 25% of liability for this accident. Consequently her damages will be reduced by that amount.
The position is as follows:

Pain and suffering - numeral 15 $23,400

Economic loss, past and future 30,000

Interest on past loss 2,000

Future medical expenses 1,500

Gratuitous services 3,000

Special damages 7,108

Loss of impairment of consortium 5,000

TOTAL

$72,008

Following the apportionment of liability there will be judgment for the plaintiffs in the sum of $54,006.
I will hear the parties on the question of costs.

Pain and suffering - numeral 15	$23,400
Economic loss, past and future	30,000
Interest on past loss	2,000
Future medical expenses	1,500
Gratuitous services	3,000
Special damages	7,108
Loss of impairment of consortium	5,000
TOTAL	$72,008

[2003] SADC 82

30 July 2003