Davies v Meagher

[1990] TASSC 83

Serial No B6/1990
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Davies v Meagher [1990] TASSC 83; B6/1990

PARTIES:  DAVIES
  v
  MEAGHER

FILE NO/S:  1483/1987
DELIVERED ON:  8 March 1990
JUDGMENT OF:  Nettlefold J

Judgment Number:  B6/1990
Number of paragraphs:  166

Serial No B6/1990
List "B"
File No 1483/1987

DAVIES v MEAGHER

REASONS FOR JUDGMENT  NETTLEFOLD J

8 March 1990

1. Action for damages for personal injuries suffered by the plaintiff in a motor vehicle accident on 30 September 1986. There was a collision between a 1970 HT Holden Kingswood sedan driven by the plaintiff and a Sigma station wagon driven by the defendant. The plaintiff was driving the Kingswood in a general westerly direction along Wilmot Street, Port Sorell and the defendant was driving the Sigma in a general southerly direction in Darling Street. The collision occurred at approximately 7.35am at the intersection of the two streets.

1. Wilmot street was described at the hearing as a "priority street" that description no doubt being justified by the circumstances that there was a "Give Way" sign facing traffic travelling in Darling Street on each side of this intersection so that road users travelling south in Darling Street and road users travelling north in Darling Street were subject to the duties flowing from the presence of the signs. It was stated without objection at the hearing that those duties were expressed in the following words of the relevant regulation:

"Vehicular traffic in the street approaching this sign from the direction in which it faces shall –

(a)    enter the intersection or junction next beyond the sign as slowly as practicable and shall give way to traffic in the intersecting or junctioning street."

1. Whilst adverting to the Traffic Regulations notice should be taken of reg5(i)(j) which it was stated at the hearing, without dissent, was in the following terms at the relevant time:

"When entering and passing through a place at which any public streets or carriageways meet, he shall enter and pass through that place at such a speed that he will be able to stop his vehicle or, as the case may be, the animal that he is driving or leading, in time to avoid a collision with any person, vehicle or animal."

1. The plaintiff left his home at 28 Port Street Port Sorell to travel to Devonport. His evidence is to the effect that he drove a short distance along Port Street into Wilmot Street. He drove along Wilmot Street in a general westerly direction at round about 35 miles per hour towards the intersection. He slowed down approaching the intersection. He was aware of the fact that Wilmot Street was "a through street" by virtue of the "Give Way signs". The plaintiff said in evidence that he slowed his vehicle because on quite a few other mornings a school bus had gone through that intersection, at the time at which he was approaching the intersection on this morning, and had not "bothered" to slow down and had just gone straight through the intersection along Darling Street and had caused something of a hazard.

1. The plaintiff said that he slowed to 25 – 28 miles per hour approximately. He looked for traffic in Darling Street on either side of Wilmot Street. He looked to his right first but did not see any traffic. Then he looked to his left and did not see any traffic. Then he looked back to his right again and saw the defendant's vehicle coming up to the intersection.

1. The plaintiff said his view of a section of Darling Street was obstructed by a tree, the position of which he indicated by a cross on photograph exhibit P5.

1. The plaintiff's evidence is that, when he saw the Sigma, the Sigma was in Darling Street probably in line with the give way sign shown in several of the photographs which are in evidence. The plaintiff said that he was slowing down when he saw the defendant's vehicle. At that time the plaintiff's vehicle was approximately in line with the street sign shown in composite photograph 1–2. The plaintiff says that, when he saw the Sigma, he either applied the brakes first or swerved to the left first. He did both those things basically at the same time. But he was not able to avoid the collision which occurred just off the centre of the intersection towards the left of Wilmot Street, that is left when facing in a general westerly direction along Wilmot Street. The driver's side front of the plaintiff's vehicle came into collision with the passenger's side front of the defendant's vehicle. The two vehicles became stationary about one metre from the point of impact, just off the centre of the intersection to the plaintiff's left.

1. The plaintiff says that after the collision the defendant said something like "sorry it was my fault". At the time of the accident the weather was good, visibility was good and the bitumen road was dry.

1. Under cross–examination the plaintiff said that he could remember looking at the speedometer of his vehicle "roughly twice" on the journey from his home to the scene of the accident, the first time it was showing a speed of about 35 miles per hour and the next time it was under 30 miles per hour. Later he said he saw the speedometer registering 30 miles per hour when he was roughly a distance equivalent to one and a half house blocks from the intersection. At that stage he had not applied the brakes of his vehicle but he had taken his foot off the accelerator because he was approaching the intersection. He assumes his vehicle slowed down further as a result but he did not know. He may have been going as fast as 30 miles per hour when he reached the intersection. He did not put his foot back on the accelerator before the collision. The plaintiff said he was "just basically on the intersection when I looked to the right on the second occasion".

1. The plaintiff could not really remember to what extent the tree obstructed his view of Darling Street. He said he could not state the distance down Darling Street he could see when he looked to his right the first time.

1. The plaintiff was unable to estimate the speed of the Sigma when he first saw it. When he first saw the Sigma he considered a collision imminent. When he first saw the Sigma he was travelling at "30 miles per hour or under, somewhere around that, exactly what I don't know". When he first saw the Sigma he applied the brake but he could not remember applying the brake at any earlier time.

1. The plaintiff said that he was on the left carriageway driving west and when he turned the steering wheel to the left the vehicle did respond and move further to the left. Asked, "You accepted earlier that when you first saw the Sigma you were travelling at approximately 30 miles an hour. Are you able to say at what speed approximately you were travelling at the moment of collision"? He replied, "I'd say somewhere between 25 to 30 miles per hour, somewhere roughly round about there".

1. The plaintiff's wife was a front seat passenger in the plaintiff's vehicle. Her best estimate of the speed the plaintiff's vehicle may have reached was 45 – 50 kilometres per hour. Mrs Davies' evidence is that she recalls travelling towards the intersection. She did not notice any variation in the speed of the plaintiff's vehicle as they came towards the intersection. Mrs Davies did not see any traffic in Darling Street until the last minute. Then she noticed a vehicle coming through on the right hand side. She did not have time to say anything. When she saw the other vehicle it was about four paces before the stop line in Darling Street. At that stage the plaintiff's vehicle had just entered into the intersection. The front driver's side of the plaintiff's car hit the front passenger's side of the other vehicle. The vehicles came to rest just over the centre of the intersection.

1. Mrs Davies says that after the accident the other driver said "I am sorry, I didn't see you".

1. During cross–examination Mrs Davies said that the speed of the plaintiff's vehicle dropped dramatically after the plaintiff applied the brakes and the plaintiff's speed at collision would have been a few kilometres per hour only.

1. The defendant Mr Meagher agreed that he was familiar with this intersection and was aware of the presence of the Give Way sign. Mr Meagher estimated that, at about 150 metres from this intersection, the speed of his vehicle was about 35 kilometres per hour, the maximum speed during the relevant part of the journey. Mr Meagher says that he slowed down considerably. He applied the brakes, the vehicle being then in third gear. As he approached Wilmot Street he dropped back to second gear. When about 15–20 metres from the intersection the speed of his vehicle was down to approximately 15 kilometres per hour. Then he looked both ways for traffic in Wilmot Street, to the left first and then the right. Mr Meagher felt that he was about 10 – 15 metres from the intersection when he looked to his left. He said that he had a clear and unobstructed view when he looked to his left but he did not see any other traffic. He did not see anything coming on his right. When he came to the intersection Mr Meagher put his foot on the accelerator to move into the intersection and, just at that moment, he looked up and saw the plaintiff's vehicle and just pulled the steering wheel to his right and applied the brakes. When he saw the plaintiff's vehicle it was a very short way away. He cannot estimate the speed of the plaintiff's vehicle. When he applied the brakes there was a very minimal effect as the impact occurred almost straight away. Mr Meagher estimates his speed at impact at about 10 – 15 kilometres per hour if not slightly slower. There was only minimal response, if any, to his act of turning the steering wheel to the right.

1. Mr Meagher estimates that the point of impact was just slightly to the south of the imaginary centre line of Wilmot Street, perhaps a metre south. On impact there was not a lot of movement of either vehicle. Perhaps the vehicles ended up a metre apart.

1. Mr Meagher agrees that he said he was in the wrong. He was obliged to give way to the plaintiff and had not done so.

1. During cross–examination Mr Meagher agreed that it was a pretty wide open intersection and you got a rather large view either side. He accepted that the plaintiff's vehicle must have been within his field of vision when he looked to his left but for some reason he did not see it. Asked, "You had no chance at all of avoiding the collision"? he replied, "I moved, but no. By the time my passenger told me that there was someone there and I stopped, it was almost instantaneous".

1. It will be seen that there is very little conflict on that evidence. I am satisfied that both the plaintiff and the defendant were satisfactory witnesses and I accept the substance of the evidence of each of them. There is a substantial difference between the plaintiff's estimate of the speed of his vehicle at impact and Mrs Davies' evidence of that speed. I suspect that Mrs Davies' estimate might be nearer the mark but I accept Mr Chandler's submission to the effect that it would be wrong to give the plaintiff the benefit of a conclusion on that point more favourable to him than his own sworn evidence. Consequently, I proceed on the basis of his evidence on this point.

1. It is clear that the defendant was guilty of negligence. He failed to keep a proper lookout and, as a consequence of that, committed a breach of one of the fundamental rules of the road in that he failed to yield right of way to the plaintiff who was travelling in a "through" or "priority" road.

1. There was a good deal of argument on the point whether the plaintiff was guilty of contributory negligence. I find that he was guilty of contributory negligence in that he failed to keep a proper lookout and failed to comply with reg5(i)(j). That regulation imposes a duty which is an important element in the concept of defensive driving. The plaintiff's speed, on his own estimation of it, was substantially in excess of what was an appropriate speed having regard to the duty created by the regulation.

1. The plaintiff was familiar with the intersection and knew that the sign was not always obeyed. It was "a wide open intersection" and the plaintiff had a good view to his right.

1. When considering the appropriate reduction in the damages for contributory negligence regard must be had to what is just and equitable having regard to the plaintiff's share in responsibility for the damage. One must look at the behaviour of each motorist from the point of view of culpability and causation and all the relevant circumstances of the case. When considering this aspect of the matter it should be noted that the evidence is that, at the time of the accident, Port Sorell was more a seaside holiday area than an area where there were permanent homes and consequently, there was very little traffic on this intersection at a time close to the commencement of work on a working day.

1. It is clear that the defendant must bear by far the greater share of responsibility for the damage. Both from the point of view of culpability and causation the apportionment should be weighted heavily against him. But it would be wrong to exonerate the plaintiff entirely. The view I have formed is that the plaintiff's damages should be reduced by 15 per cent.

Damages

1. The plaintiff felt pain after the collision. It was in the area of the mid line of the lower back "just beneath and just above the belt line". There was also pain behind the head, in the neck and between the shoulders.

1. The pain in the lower back after the accident "was like someone holding their fist in there and it was gradually getting worse and there was a sharp jabbing pain with it as well ... Holding their fist in the lower part of me back, you know like a pressure in ... Just like as if someone was pushing on the outside of it ...".

1. The pain was getting worse when the plaintiff arrived at his work after the accident. He went to see Dr Clapton who prescribed some medication and sent the plaintiff home. Two days later the plaintiff did not feel any better and saw another doctor. The doctor gave him further time off work and referred him to a physiotherapist. The physiotherapy did not help.

1. The plaintiff says that he went back to work towards the end of October, early November. He attempted to discharge normal duties but after a few days the lower back pain was getting worse again. At that stage the pain in the upper part of the body had cleared up.

1. Dr Clapton referred the plaintiff to an orthopaedic surgeon Mr Morgan. He saw Mr Morgan on 19 November 1986. Mr Morgan supplied the plaintiff with a brace but he did not get any relief from it. Mr Morgan prescribed the drug tryptanol to help with sleep but the plaintiff took it once only as it made him feel "like a zombi".

1. The plaintiff said that he returned to work again in early 1987. It was arranged that he would do office work but he ended up back at his ordinary duties. The pain got worse.

1. Dr Clapton referred the plaintiff back to Mr Morgan. The plaintiff was admitted to St Vincents Hospital on 23 January 1987. Mr Morgan applied a plaster jacket which remained until 5 March 1987. The jacket was from below the hips to just under the armpits. The plaintiff found it very uncomfortable.

1. The plaintiff found that the plaster jacket made no difference to the back pain.

1. Then the plaintiff consulted a Dr Lane who it appears emphasises "natural medicine". Treatment with diet and vitamins did not help.

1. The pain did not get any better. He was taking medication prescribed by Dr Clapton – panamix, panadeine forte and voltaren with normison to help with sleep.

1. When the plaster jacket was removed the plaintiff started listening to relaxation tapes. He got some help from those. In the middle of 1987 he was listening to the tape twice per day at one stage as he "just could not cope with things". He found himself getting snappy, sharp and moody. He reduced the use of the tape to about twice per week.

1. In early July 1987 he was approached by a rehabilitation counsellor from a firm called Industrial Rehabilitation Service. She produced a plan to get the plaintiff back to work performing duties which were a modified form of his pre–accident work. The plaintiff did two hours work on 10 August 1987. On 12 August he went to work again and ended up very sore with the result that he went to see a physiotherapist. On the following Friday the plaintiff did some more work and he was not too bad at the end of that.

1. The plan for the following Monday was for him to do three hours of work. But by the time he got to work that day the pain had started and was getting worse. He went to see Dr Clapton who advised the plaintiff to see a specialist, Mr Batten, before continuing with the rehabilitation plan.

1. Mr Batten suggested a discogram. He was admitted to St Vincents Hospital on 1 September 1987 for that procedure. He found that procedure painful. One injection caused pain worse than any he had ever experienced. He experienced a lot of pain from that procedure for quite a while. He was getting headaches as well which lasted about three weeks.

1. Dr Clapton then suggested that the plaintiff consult a hypnotherapist. But that treatment did not help him. He continued to listen to the relaxation tapes and remained off work for the rest of 1987.

1. Industrial Rehabilitation Service arranged another return to work for 4 January 1988. The idea was to see if the plaintiff could cope with office work. The plaintiff found that the first couple of days of that experiment were not too bad but, then, gradually the pain got worse. On the fifth day of the experiment he started off to drive to work and half way there experienced a sharp pinching pain.

1. Because of the pain he returned home. Later he went to see Dr Viale who prescribed medication and suggested that he go home to bed. On the following day the plaintiff got half way to work and turned around and went home. The plaintiff has not worked since that time.

1. The rehabilitation counsellor suggested that the plaintiff should consider retraining for other work. With that in mind he consulted the Devonport TAFE College. But he did not manage to find a suitable course as his education level was not good enough.

1. The plaintiff returned to consult Dr Clapton. Dr Clapton referred him to a Melbourne neurosurgeon a Dr Brownbill whom he saw on 8 February 1988. That reference did not assist.

1. On 1 March 1988 the plaintiff's employer, Lysaght Building Industries, sent the plaintiff a letter terminating his employment from 11 March 1988.

1. On 16 March 1988 the plaintiff's solicitors enquired of MAIB whether they had any proposals with respect to the rehabilitation of the plaintiff. The reply of 23 March 1988 was in the negative.

1. At this stage, about the middle of 1988, the plaintiff found that he was not coping too well. On one occasion he sought the assistance of Lifeline and spoke to them for about an hour. To assist in coping with his problems he used training he had obtained in the past as a member of AA.

1. The plaintiff felt that, at the time of the accident, he had a really good marriage. That was his second marriage. His second wife was Jillian Davies, whom he married on 7 May 1983. She had two teenage sons from her first marriage. She separated from the plaintiff on 7 October 1988. The plaintiff got emotionally upset about her leaving. Mrs Davies noticed a change in the plaintiff's personality after the accident. He had become intolerant, very nervy, "sort of shaking could not sit for long and could not lay down for long". He became impatient and if things were not done he would get emotionally very upset. He made excessive demands on her sons and became angry and irritable with them as a result of which they became very upset. Mrs Davies found that his general attitude towards her and her sons changed dramatically. She thought that played a very big part in the breakdown of the marriage. She felt she just grew away from him and her feelings changed. "It was just like living with a complete stranger".

1. Mrs Davies described the plaintiff as getting anxious and despondent during the work trials because he was concerned that he could not do what was asked of him. There were tears on one occasion and a shaky and quavering voice. The shaky voice was very noticeable at times of stress and anxiety and when he was in pain.

1. Mrs Davies last saw the plaintiff just before Christmas 1988. Then she found him very anxious, nervous and in pain "just sort of completely different person".

1. Before the accident the plaintiff was putting an extension on the kitchen at his home. He started that work about December 1985. He did all the physical work himself and had no problem doing it. At the time of the accident that work was still incomplete and he was not able to continue with it.

1. Before the accident he used to go water skiing and boating a fair bit. He would do some fishing and also some camping.

1. He has gone out in the boat on only one occasion since the accident, around January 1989. He came back after one hour because his pain was being aggravated by the jarring of the boat. He tried to go camping last Christmas but had a lot of trouble getting comfortable at night in a tent.

1. The plaintiff was a keen gardener before the accident. He did a lot of work in his garden and was proud of it. He has tried to do some gardening since the accident but it aggravated his pain.

1. Before the accident he was able to do the mechanical work on his motor vehicle and also his wife's vehicle. At various times he repaired cars for friends also. Since the accident he has been able to do only minor things. If the work involves bending over for any length of time he cannot do that without aggravating his pain.

1. The plaintiff moved back to Victoria from Tasmania at Christmas 1988. All his family is in Victoria including three daughters from his first marriage. Eventually he moved to a caravan park where he lives alone. After he moved to Victoria he ceased to receive payments of Workers' Compensation. He now survives on sickness benefits, living the life of an invalid and experiencing a lot of pain. He appears to be able to manage to do his own basic chores.

1. He can drive his car. Driving from Rosebud to Frankston and back, half an hour each way, aggravates his pain.

1. The plaintiff has suffered earlier injuries to the lower back. The first of these was in 1977. But that injury did not cause him any ongoing problem or disability.

1. He suffered a substantial injury at work in 1982 or 1983. As he was kneeling on the floor a large beam fell from the ceiling. It appears to have made contact with his body along the length of his spine. That caused pain in the lower back area. He was off work as a result of that incident for about 2 – 3 months. After he returned to work he did not have any problem discharging his duties but he did experience ongoing pain.

1. In November 1985 the plaintiff came to Tasmania with his second wife and her two children. He left the employment he had with the Lysaght organisation in Melbourne. After a short time in Tasmania he got employment with that organisation at Spreyton. He became a roll form operator. He was quite happy at Lysaght and at the time of the accident intended to continue with them until retirement. While in that employment he was not aware of his employer's intention to close the Spreyton works and transfer the operation to Western Junction. He feels that, had he continued with Lysaght, probably he would have transferred to Western Junction as he had no training or qualifications for any work other than labouring and maintenance – assistant type work. He left school at 15 years when an average student in third form at a technical school. After leaving school he commenced an apprenticeship with a plumber. After 3 – 3½ years of the apprenticeship he abandoned it because he could not keep up with the theoretical aspects of the trade. After that he spent a brief time as a cleaner for the Victorian Railways before spending about 5 years working in service stations. Then he began his long period of employment with Lysaght. In the later years of his employment with Lysaght in Victoria he served as a committee member on the company's Drug and Alcohol Rehabilitation Scheme.

1. He regards himself as, at the moment, unfit for the maintenance – assistant type labouring work he did for Lysaght. He feels he could not cope with the bending, lifting and twisting which was involved in that work.

1. The medication which he takes at the present time varies depending on the extent of his pain. Some days he copes with 2 – 6 Panamix. Some days he takes 1 – 4 Panadeine Forte tablets in addition to the Panamix or two or more diogesic tablets with the Panamix. He consults a general practitioner Dr Cacek once or twice per month mainly to get medication.

1. He was suffering pain in the lower back before this accident which was a result of the fall of the beam at work in 1982 or 1983. But that was only light and moderate pain. He described it as follows: "it was just like a pressure pain as well, but that was, it was only light pressure sort of pain in there". The pain in the lower back is much worse now.

1. The plaintiff takes the view that the future does not hold very much for him. The pain has not improved that much lately and, hence, he does not really know whether there is anything for him except sitting around. He said he was trying to see whether he could be trained for some other class of work through the Rehabilitation Service.

1. The plaintiff complains that he gets upset quite a lot and sometimes quite easily. Before the accident although he got upset at times, he regarded himself as a relatively easy person to get on with.

1. During cross–examination he said that, when he was at his best, he still had pain. When he was at his best it was "just a pressure pain in there ... like if someone is holding a fist in there, internal pressure ... there is a constant pressure in there. When the lower back pain is at its best it does not inhibit me in any way. At its worst it causes me to go and lay down and take medication". On average he has to rest "basically every day, every second day". It depends on what he is doing. He has odd days when he avoids lying down. When he lies down he needs to stay there for ½ hour to two hours before the pain eases.

1. The plaintiff says that the pain has remained relatively constant over the last three years.

1. It became clear during cross–examination that the plaintiff is fortunate in having available to him a good deal of support from family and friends. He has three daughters living in the area in which he now lives, aged 17, 15 and 11. He claims a close relationship with them. His parents are still alive and living in Hampton in Victoria, roughly 30 kilometres from him. He sees them often. He has three brothers who live relatively close to him and he sees them regularly.

1. The plaintiff finds that he can walk comfortably for a couple of kilometres, but it varies. He goes for a walk every second or third day, but that varies too. He has been going to a heated pool in Rosebud but, immediately before the trial, he had not been for a month or more. He has only been able to swim half the length of the pool because of pain. At various times he has got some relief from using the pool.

1. Dr Clapton saw the plaintiff on the day of the accident and many times subsequently. The pain in the upper body subsided fairly quickly but there were consistent complaints of low back pain. Consequently Dr Clapton referred the plaintiff to Mr Morgan. But Mr Morgan's treatment made no difference to the plaintiff's symptoms of pain and stiffness in the lower back.

1. Dr Clapton said that he examined the plaintiff from time to time. He found a slightly restricted slow range of movements with some local tenderness over the lumbar spine. Dr Clapton did not find any evidence of over dramatisation. His findings on examination were consistent with the symptoms given by Mr Davies. Mr Davies' symptoms were very consistent consultation to consultation. Dr Clapton did not have any cause to doubt the genuineness of the complaints of low back pain. From the time of the accident to February 1989 Dr Clapton would have seen the plaintiff on average once per month.

1. On the occasion of one of the return to work trials, on 17 August 1987, the plaintiff came to Dr Clapton's surgery and presented in a very, very agitated state. He was trembling, there were tears in his eyes and he said he really could not handle the work. On that occasion Dr Clapton formed the view that the plaintiff was not fit to work. The grounds for the opinion were a combination of physical and psychological grounds but by this time, the psychological side was the main thing which was preventing him working.

1. On 11 January 1988 the plaintiff was working in his employer's office. He consulted Dr Clapton because he could not handle the work because of the pain in the back even in the office situation. Dr Clapton formed the opinion on that day that Mr Davies was not able to continue with the work. Again the basis of the opinion was a combination of physical and psychological aspects, but mainly psychological. At that time Dr Clapton referred Mr Davies to Mr Brownbill, a Melbourne neurosurgeon. Mr Brownbill advised that there was no indication for any further neurosurgical investigations or surgical procedures.

1. At that stage Dr Clapton thought that the plaintiff was not fit to continue at work. Dr Clapton remained of that opinion throughout 1988. When Dr Clapton last saw the plaintiff on 21 February 1989 his condition was unchanged. Dr Clapton gave the plaintiff a certificate for time off work until 22 April 1989. It was Dr Clapton's opinion at that time that the plaintiff was unfit for any type of work. He thought that the plaintiff's chances of re–entering the work force were minimal.

1. Under cross–examination Dr Clapton said that, on the day of the accident, he thought the plaintiff's problem was relatively minor. He thought that it was a mild muscle strain the symptoms of which would disappear within a couple of days.

1. Dr Clapton said that a discogram was done at one stage which proved to be normal.

1. The fact that there was no appreciable change in Mr Davies' lower back symptoms after an extended period led Dr Clapton to suspect that there may have been a psychological component in his condition. If his only problem was a soft tissue injury or a strain time should have healed it. When Dr Clapton last examined Mr Davies he thought the majority of his symptoms were due to psychological factors. At that time his assessment was that the plaintiff was virtually unemployable. He could not see him holding down a job barring a miracle really. Over the previous 2¹ ₂  years the plaintiff had attempted to go back to work on a number of occasions, the last occasion doing paper work and answering the telephone and he could only tolerate that situation for a few days. Dr Clapton could not imagine any work lighter than that. It was Dr Clapton's knowledge of these attempts to get him back to work and the anxiety that the plaintiff expressed all the time about job prospects which led Dr Clapton to the opinion that the plaintiff would not be able to work again.

1. Mr Dermot Morgan examined the plaintiff on 19 November 1986. The plaintiff appeared to be tender to palpation right at the base of the lumbar spine. There appeared to be some restriction of movement and there was some restriction of straight leg raising but no particular neurological abnormality.

1. Mr Morgan found that the plaintiff's symptomology seemed fairly constant throughout the consultations with him. Mr Morgan felt that there had been a soft tissue injury to the lumbar spine and that diagnosis remained the same throughout but Mr Morgan came more and more to the view that there were psychological factors affecting the plaintiff's perception of symptoms. In September 1988 Mr Morgan felt that the plaintiff had quite a significant anxiety depression. On that occasion Mr Morgan was struck by the plaintiff's level of anxiety as he sat very nervously on the edge of his chair with a fine but obvious tremor of the hand. But, again, there appeared to be tenderness to palpation at the base of the lumbar spine, again there appeared to be a moderate restriction of lumbar movement and, again, there was some restriction of straight leg raising. Again, there was no neurological abnormality.

1. Mr Morgan did not feel that there was proper physical justification for the symptoms to have continued for as long as they appeared to have continued. Initially Mr Morgan felt that the plaintiff's complaints of pain were consistent with his physical problem. But, as time went on, Mr Morgan felt that it was much more consistent with Mr Davies' psychological reaction both to his symptoms and other factors around him.

1. Mr Morgan formed the view that the plaintiff is basically a genuine person. He feels that his main continuing problem is indeed a psychological problem.

1. During cross–examination Mr Morgan said that probably most of the physical harm has cleared up ages ago. "My feeling is that he probably has very little organic pathology persisting from the accident of 1986".

1. Mr Morgan felt that the plaintiff had quite significant psychological abnormalities. He felt that he was basically a genuine man but the way things had gone on "and the system being what it is", if pressed, he would say the plaintiff probably is also, perhaps, seeking to magnify his problem.

1. Mr Morgan found the plaintiff more psychologically disturbed in September 1988 than on a previous occasion. In September 1988 he felt the plaintiff's condition was endogenous in the sense that he was the type of person prone to that. Mr Morgan also felt that it was the plaintiff's reaction to his continuing problems of both a medical and legal nature with his back and a fairly significant component from his personal life as well. A combination of the two superimposed on a person who, perhaps, has a rather frail psyche.

1. In September 1988 Mr Morgan could see no physical pathology which would stop the plaintiff from doing his duties. But, of course, he felt it was unrealistic to expect that he would go back to work at that stage. But he was physically fit to do the work in an unrestricted way although he was perhaps more likely than the average person to have back problems under stress.

1. Mr Morgan felt that the conclusion of litigation probably will see a reduction in the plaintiff's anxiety. Mr Morgan believes that once the plaintiff is able to return to a more normal psychological state he will be less sensitive to any little symptoms that he will get and he will have less of a perception or self image of himself as an invalid as time goes on. So, in general terms, Mr Morgan expects an improvement. If his matrimonial difficulties finally settle themselves that will contribute to a lessening of his anxiety. A lessening of his anxiety by the removal of these causes will in turn reduce his pain symptoms. A reduction in pain symptoms would in turn increase his employability significantly. It is certainly quite possible that he would return to his previous occupation as a roll form operator. In a physical sense he could do that. Mr Morgan said one has to peer into the future and make certain assumptions but he could not rule out the plaintiff being able to go back to that work. If he could not go back to that level of activity Mr Morgan would expect him to be able to do lighter work.

1. Mr Morgan feels that litigation usually has an adverse effect on a plaintiff's response to injury. Mr Davies is a very frail type of person and the stress of litigation would have a greater effect on him than an average person.

1. Dr Cacek was a very important witness because he is now the plaintiff's doctor and he has had previous experience with the plaintiff.

1. Dr Cacek first saw Mr Davies on 27 September 1977. Apparently, some little time before that, Mr Davies had slipped on the back step and injured his lower back. Treatment was analgesics, manipulation, heat treatment and some local rubbing. The plaintiff was off work about one week with that injury.

1. Dr Cacek has no record of any other consultation with the plaintiff regarding back pain until 1982. On 8 November 1982 the plaintiff consulted Dr Cacek concerning the fall of the timber on to his back while at work, an accident some of the details of which have already been mentioned. The plaintiff complained of pain in the mid and lower back. He was quite tender in the area between the shoulder blades extending down to the sacral area. There was tenderness in the cervical spine. The treatment was analgesics and serepax, the latter to aid sleep because there was painful bruising.

1. X–rays were taken at this time and Dr Cacek received a report on those x–rays dated 10 November 1982. It was reported that:

Lumbar Spine – The disc spaces are maintained, marginal osteophytic lipping is seen at the L3–4, L4–5 levels indicating degenerative disc disease. There is no recent abnormality.

Thoracic Spine – Fairly severe degenerative disc disease is present throughout the mid and lower thoracic spine with minor changes in the upper thoracic spine. A minimal thoracic scoliosis is present, convex to the right. No recent abnormalities identified.

1. On that occasion Dr Cacek found that the plaintiff had suffered a bruising type injury to his back and basically the upper to the lower back, along the length of the spine. The diagnosis was soft tissue injury and bruising. The plaintiff continued to be in pain for some time after that injury. He had several courses of treatment, analgesics, anti–inflammatory agents. Eventually the plaintiff started to make some improvement even though his back was still sore. The back would tend to get better until the plaintiff did something to re–injure the damaged muscles and ligaments when he required further analgesics. Throughout 1983 the pain tended to come and go. The plaintiff continued to work all the way through. There were intermittent bouts of pain extending through 1983 and the early part of 1984.

1. The next note Dr Cacek has concerning the plaintiff's back problems is dated 11 April 1985. That note refers to a two day history of back pain, been off work for two days with muscle soreness, back soreness. The plaintiff was given further analgesics. The pain eased off and the plaintiff was advised to go to the gymnasium.

1. Dr Cacek next saw the plaintiff in March 1989. The plaintiff told Dr Cacek that he had been having a lot of back pain again. The plaintiff discussed the motor vehicle accident and the problems he had had with his wife. He told the doctor of the treatment he had received. At that consultation Dr Cacek prescribed pain killers and an anti–inflammatory analgesic to relieve muscle spasm. On examination at that consultation Dr Cacek found tenderness in the lower back, quite tender with muscle spasm. There was limitation of movement. The plaintiff also had loss of the lumbar curve, that gentle curve which comes from the thoracic spine to the sacrium. Dr Cacek added, "now that usually denotes that there is a fairly, or marked degree of muscle spasm to straighten the back up in that area". Dr Cacek's diagnosis was that the plaintiff had soft tissue damage, mainly muscular and ligamentous to the mid and lower back.

1. Dr Cacek continued to see the plaintiff throughout 1989. Dr Cacek has formed the opinion that psychological problems may play a part in the plaintiff's presentation. Dr Cacek discussed with him the marriage breakdown, attempts to come together with his children from his first marriage, problems coping with finances, having to move again, having to move into a caravan with limited access to other types of activities, problems with the insurance company, problems getting money, ongoing tension literally building up over a period of time. Dr Cacek decided that the plaintiff was living around the pain. The pain was ongoing and he had nothing else really much in his life except the feeling that he is in pain and was not able to do anything, he felt incapable of working and he had nothing else to concentrate on. Dr Cacek said that he could appreciate the ongoing problems the plaintiff must have had, he had consulted so many doctors, had so many different opinions given to him with no concrete answer that he felt totally inadequate to deal with the situation. The problem people with chronic pain get is that the pain becomes, if you like, imprinted in their psyche and they have no other recourse except to live with the pain day in and day out and that becomes almost the be all and end–all of their existence, and a lot of people find it very difficult to cope with this on any long–term basis. The longer the condition remains the harder it is to treat, and in fact it becomes at some stage so chronic that it is impossible to treat the pain. The pain literally is embedded in the body, as well as the psychological problems that have amounted from there. People see themselves as basically worthless and a person who has always worked and now cannot work gets to the stage where it is "oh, to hell with it, nobody can do anything I will just put up with it."

1. That was part of the plaintiff's problem in Dr Cacek's opinion. The plaintiff just had to learn to accept the fact that he had pain. He had always been a worker and now he was not a worker. He was in effect an emotional and physical cripple and he could not really come to terms with that. The plaintiff could not quite come to grips with the fact that he is disabled and apart from the physical disablement there is also the emotional disablement which comes along with it.

1. Dr Cacek's evidence is to the effect that there is a strong contrast between the plaintiff's condition in March 1989 and when Dr Cacek last saw the plaintiff prior to the plaintiff's departure for Tasmania in 1985. In 1985 Dr Cacek felt that the plaintiff may have had domestic problems but certainly he had no obvious and incapacitating physical problems which were preventing him from working. Dr Cacek's evidence is that the event which was responsible for the change in the plaintiff was this motor vehicle accident in 1986. Dr Cacek finds that at present the plaintiff is very limited. He cannot drive any distance. He cannot do even light gardening around the caravan. He finds it difficult to bend. He plays no sport because of pain. He has problems even standing for any period of time. Dr Cacek does not see the plaintiff as able to do any sort of full time work at this stage and in fact what he has to look forward to is a process of retraining in some other area where, perhaps, he could cope with a job.

1. Dr Cacek said that the plaintiff's lack of activity has a secondary effect on his ability to cope. He has always been an active man and he finds it difficult even to do things like the basic physiotherapy. Even swimming for short distances tends to aggravate his back problem. So, you are left with a man who has very limited opportunities for any sort of activity.

1. Dr Cacek feels that the plaintiff's problems at the moment have been going on since 1986 and it is time to do something positive with regard to rehabilitation and retraining or something to at least alleviate, perhaps, some of the plaintiff's muscle pain. The muscle tone must be improved. At the moment he has muscle spasms which are triggered off by even minor injuries, for instance, even walking can tear the muscle fibres, tear the ligament fibres. If the osteoporosis is becoming more severe he would be having bone pain as well. And there are arthritic changes in the spine. The muscle spasm indicates that there is ongoing pathology in the area, the spasm causes pain, the pain tends to lead to more spasm and this is a vicious cycle which is ongoing and is very difficult to break. The muscles themselves because of the contracture cut down their own blood supply which leads to a build up of toxins within the muscle tissue. The toxins are not flushed away and they cause more swelling around the area. The swelling around the area causes more contracture. Deformities of muscles themselves lead to changes in blood supply and affects the nerve fibres and so on, so this is a pattern which keeps on going. It is very difficult to stop that ongoing situation. It does not take much to damage an already damaged muscle area, and it is not just the muscles which are damaged it is the nerve fibres which are being affected by the changes, the chemical changes which are going on around them, and so is the skin. If this process extends down to the spine and extends down to ligaments, ligaments having very poor blood supply once they have become swollen, it becomes very difficult for the body to heal itself and reduce the swelling within the ligamentous tissue. And that is basically what we say when we talk about soft tissue damage, that it is ligaments, muscles, nerves, skin, the whole lot are all soft tissues as opposed to bone.

1. Dr Cacek explained that once an area had been damaged, for example, an ankle is sprained, it heals the first time, say in 3 – 4 days. But the ligaments have been damaged by the sprain. They heal by scarring, that scarring is not aligned in the normal pattern that it would have been had it not been damaged in the first place. So, the next time the ankle is sprained he tears the scar tissue again. This time the process of healing takes longer. If he damages that area again he is damaging a scarred area and you cannot with impunity damage a scarred area and expect healing to occur normally and the result to be as it would have been had that area not been damaged previously. Mr Davies has a history of damage and it has been aggravated by a type of injury which is notorious for stretching and pulling ligaments, that is, an injury in a side–on motor vehicle collision. That sort of collision can damage any ligament especially around the spine. Compare the so–called whiplash injury to the cervical spine where ligaments are over stretched and some are torn. Once a ligament is over stretched it will never regain its normal length, it becomes pulled and strained and even minor damage later can lead to further damage and further bruising.

1. Dr Cacek explained that the stresses placed on the normal spine even when just sitting are quite enormous. With walking it is a dynamic process with moving ligaments. A person who has been incapacitated, who then starts to do something his body has not attempted for some time, suffers more tearing and stretching because, in effect, there has been no lubrication of those parts which are helping to prevent excessive wear. And it is this whole process which causes pain.

1. Dr Cacek said that encasement of the lower lumbar spine in a plaster jacket will cause loss of muscle tone and muscle bulk to approximately the same degree as with a femur encased in plaster. Six weeks' immobilisation of a femur would lead to over fifty per cent of loss of muscle bulk. Improvement in muscle tone and bulk will be very slow if the back is not kept active to an appropriate degree after coming out of plaster. Because muscle tone and muscle bulk are both necessary to maintain alignment of bones and bone structures and allow movement, the patient will continue to have back pain and disability while the defect in tone and bulk continues to exist. The muscles are weak and are asked to perform functions beyond their capacity with the result that they are being constantly strained. There are small receptors within the muscles which are the tension sensors. When muscle, which has not been used for such a period of time is now asked to work, the tension sensors in effect become pain receptors by being triggered constantly by the stretching and movement of the muscle and the muscle has not got the capacity to perform the function demanded of it. The tension receptors are put in such a form that the muscle contracts up and does not relax and that is the cause of the muscle spasm. Activity such as walking after the cast has come off and the muscles have not been used can cause muscle spasm. From the spasm the pain follows and you have the cyclic effect.

1. Dr Cacek intends to treat the plaintiff by employing anti–inflammatory agents, analgesics and physiotherapy of various modalities. He is hoping to get him into a rehabilitation programme. Dr Cacek is afraid that the whole process is very slow. The following medication will be required in treatment:

(1)Pamamix – between two and six per day. Perhaps that will not be needed indefinitely and, perhaps, not every day, but certainly at the present time.

(2)Panadein Forte – two or three per day. There will be an intermittent need for that drug in the future.

(3)Ducene – as a muscle relaxant and a general agent which allows him to relax. Dosage, perhaps, half a tablet twice per day and one to two at night.

(4)Voltaren – anti–inflammatory agent, dosage perhaps between one to two tablets twice per day. At this stage "most likely that will be required indefinitely".

(5)Physiotherapy – Dr Cacek said that, if he could, he would use physiotherapy. But the plaintiff will find it very difficult initially. But, if possible, Dr Cacek does wish to pursue that course with the plaintiff. Initially it would be probably two to three times per week. The initial course would be at least three months. The position can be re–assessed after the expiration of that period. The cost of physiotherapy is $25 – $30 per half hour. If circumstances dictate there may be further physiotherapy after that. But, perhaps, if he becomes worse or develops further pain after a minor injury or re–injury he may require ongoing physiotherapy for shorter periods following that period. During those on going periods, perhaps, once maybe twice per week.

1. Dr Cacek recommends that the plaintiff go through a full psychological assessment rehabilitation programme to find out where his abilities lie, for instance, whether he would be better off being retrained in some sort of trade or clerical type work or, perhaps, something to do with computers. Dr Cacek points out that the plaintiff will need continuing moral support to explain problems which crop up, to help him get over difficulties in the initial stages. That is the function of his general practitioner. Consultations will need to be, perhaps, once per week and then after one to two months, the visits may come down to, perhaps, repeating the prescriptions monthly or six weekly, on average probably between ten and twelve visits per year. That course will continue to be necessary until he regains his abilities.

1. Counsel for the plaintiff then questioned Dr Cacek as follows:

"QRight. Looked at at brightest, if the treatment that you are postulating now works, what level of function do you believe Mr Davies will reach say in two years?

AI would hope to see him at a level which would enable him to perform a full time days work.

QBack in his old job of maintenance – assistant style of work or at Lysaghts?

ANo, I'm sorry, I don't envisage that would be possible.

QRight, well that evidence is looked at at its best, what's your realistic estimate of what will happen?

AIf he continues on the same road as he is going now I don't anticipate that he will return to any gainful employment ever".

1. Dr Cacek's considered opinion was that the plaintiff was not a malingerer.

1. During cross–examination Dr Cacek accepted that it was possible that, because the plaintiff had two injuries to much the same area of his back before this motor vehicle accident occurred, that at the time of the motor vehicle accident he was more vulnerable to a further injury in that site.

1. Dr Cacek said during cross–examination he suspected that some arthritis in the apophyseal joints was probably a feature of the plaintiff's pain and the site of the suspected arthritis is the area he is now complaining about. It is quite possible that there was some evidence of arthritis at the time of the 1982 incident, the symptoms were consistent with that. The current symptoms are consistent with him suffering from arthritis, a condition more often than not due to trauma. It is possible that the 1977 incident started this arthritic condition. The 1982 accident could possibly have commenced his arthritis or increased it. It is possible that any arthritis he is suffering from has worsened since 1982. In 1985 the plaintiff had no "physical evidence" of arthritis in this area. Dr Cacek did not see the plaintiff then until March 1989 when he presented with back pain which it is possible is a symptom of arthritis. It is hard to say what part the arthritis plays in his present pain, it plays some part but it is difficult to quantify it. The disc degeneration plays some part in his pain but, again, it is not possible to quantify it. It is possible that the soft tissue injury suffered in the car accident is still causing pain without the disc degeneration and the arthritis. Dr Cacek said that he agreed in general with Mr Morgan's view that a soft tissue injury heals itself within days but, usually, at least within months. He was then asked, "what is there in this case which makes you believe that this particular soft tissue injury is still causing pain to Mr Davies without these other factors?"

"AThe possibility that other aggravating factors may be present or might have been present in the intervening period. One factor which has been mentioned is the plaster jacket which was applied for pain relief. I am not aware personally of any other episodes, trauma, which have occurred from 1986 to the time I saw him on 30 March 1989. It is a possibility that the wearing of the plaster jacket is a factor which may explain some of his pain. And that is pain from the soft tissue injury which normally one would expect to have healed. In 1982 part of his pain was coming from osteoporosis which was present after the incident occurred. It is possible that the osteoporosis is a contributing factor to his current pain".

1. Dr Cacek said that he saw the plaintiff on a number of occasions from 1977 until his departure for Tasmania in 1985. Over that period Dr Cacek saw signs of anxiety or depression and, at times, he treated him for those symptoms. Basically the treatment was limited to psychotherapy, using psychotherapy techniques occasionally, and medication, minor tranquilisers and on two occasions anti–depressants. Dr Cacek gained the impression that the plaintiff had a lot of domestic upheaval in his life which had been going on over a considerable period of time and there were times when he could not cope with the stresses and asked for help.

1. Dr Cacek said that he would accept the position that, had this motor vehicle accident not occurred, perhaps, the plaintiff could have worked through until aged 65 years as a roll form operator with Lysaght, Dr Cacek having no evidence that, before this motor vehicle accident, the plaintiff "had any problems with his back".

1. Dr Cacek was asked by cross–examining counsel, "It is your view that it would take, if the treatment is as successful as everyone hopes, as long as two years for him to attain that level of employability (that is the level referred to in Dr Cacek's answer to Mr Read)"?

1. He replied, "I believe it could take as long as two years, if not longer.  "Q "Might take less"? A     "It may". Then there is the following exchange:

"QAgain, looking at its best, how quickly do you think he could be got back into the work force on a part time basis"?

AIt would depend on the circumstances of the training programme and the rehabilitation programme that he would undertake, and of course, the type of employment that would be offered on a part–time basis. I mean there are so many factors involved in here it is mere supposition to say it is a possibility, because it is a possibility, but the circumstances haven't even dictated that I can definitely say, well, yes, it is a probability rather than just a possibility."

1. Dr Cacek added that he did not envisage that the plaintiff would be fit to return to work as a roll form operator on either a full–time or part–time basis. It is possible that he will be sufficiently improved so that he could do light work such as a ticket seller in a theatre for example, but it would depend on a number of factors. With work like that of a shop assistant it depends on the circumstances in which he found himself. Dr Cacek was asked, "Are you optimistic that his treatment will in the long run enable him to find employment"? He replied, "Well I'm hopeful".

"QWould it be light work that you would have in mind exclusively or do you think he could cope with something more than that"?

AYour Honour, the type of work I would envisage would deny him the ability to bend repeatedly. And I certainly think that he would be limited as to the amount of walking he could do, would almost certainly cut out driving even a small courier truck. So, you are really starting to become quite limited as to the type of jobs you can offer people with problems like he has, and it really has to be realistically assessed as an ongoing thing – it's not – at this stage, if I was a potential employer, couldn't think of anything I could give him within my surgery that he could realistically do on a full time basis."

1. During re–examination Dr Cacek said that he would advise him in the future to avoid lifting. Without seeing recent x–rays and comparing them with the 1982 x–rays he cannot really assist on whether the plaintiff's arthritis has accelerated throughout the time he has known him.

1. The plaintiff called an experienced psychiatrist, Dr Burges–Watson. Dr Burges–Watson is at a disadvantage when compared with the other medical witnesses who have treated the plaintiff especially Drs Clapton and Cacek. He does not know the plaintiff, has seen him on two occasions only, and the apparent condition of the plaintiff would vary somewhat from the one consultation to the other.

1. The first consultation was on 24 August 1988 when Dr Burges–Watson was asked to advise whether there was any psychological reason for the continuing pain. The plaintiff presented on that occasion as overtly anxious with restlessness, tremulous speech and a raised colour. Dr Burges–Watson concluded that Mr Davies needed immediate treatment and he referred him to another psychiatrist, Dr Briggs.

1. Dr Burges–Watson next saw the plaintiff on either 5 June or 5 July 1989. Dr Burges–Watson found that the plaintiff had received treatment from Dr Briggs but had ceased seeing Dr Briggs within a matter of weeks of the final break–up of the plaintiff's second marriage. On that occasion Dr Burges–Watson found considerably less evidence of anxiety than on the first consultation. However, the plaintiff was obviously somewhat nervous and when asked about it said that he was generally nervous when seeing doctors. Dr Burges–Watson gained the impression that the plaintiff was a generally anxious man and it took very little to make him anxious.

1. Dr Burges–Watson decided that, in view of the conclusions of Mr Morgan and the other surgeons to the effect that there was no convincing evidence of any serious organic problem, the appropriate psychiatric diagnosis is psychological factors affecting the soft tissue injury in the lower back. The psychological factors are his life long tendency to anxiety and general vulnerability. He felt that the plaintiff was genuine and not deliberately exaggerating his symptoms. Dr Burges–Watson on that occasion formed the view that, at that time the plaintiff was not capable of undertaking employment because of the pain in his back as he perceived it.

1. Dr Burges–Watson felt that it was very difficult to give a prognosis. There were a number of aspects of the plaintiff's life which might adversely affect his level of confidence including pain and the psychological factors affecting that pain. Dr Burges–Watson noted that the plaintiff's anxiety was a very variable feature because he presented to Dr Briggs without any evidence of anxiety and then two months later presented with very considerable anxiety. Dr Burges–Watson felt that all he could say was that there are likely to be further episodes of anxiety depending on the stresses the plaintiff has to face. Dr Burges–Watson felt that, given that the diagnosis is now psychological factors affecting the physical condition, unless those psychological factors are determinable and treatable the plaintiff will continue as he is at present. Dr Burges–Watson considered that it was very difficult to say what needed to be done to determine the psychological factors particularly in view of Dr Brigg's dealings with the plaintiff. The plaintiff saw Dr Briggs twice with symptoms. On one occasion Dr Briggs did not think he could find anything and the next occasion he found anxiety symptoms which he treated "and then recovered from" [sic]. So that Dr Burges–Watson was not sure that further psychiatric treatment was going to be of any particular help. Asked, "What is your opinion as to whether any psychiatric treatment is likely to assist Mr Davies' level of function in the future"? he replied, "Not knowing him that well I think that a rather difficult question to answer. Given the length of time he has been off work I would think it highly unlikely but it is certainly possible he will recover to some extent".

1. During cross–examination Dr Burges–Watson said that the essence of the thing is that the plaintiff's anxiety had been a complicating factor because he appears to get very anxious in situations which have nothing to do with the case or his back at all.

1. Asked whether there was likely to be an increase in the plaintiff's ability to cope with pain, Dr Burges–Watson said, "I don't think I can make any prognosis at all in the sense that there are so many factors involved in what may or may not improve his psychological functioning in the future, that is I don't think one could pick out the court case per se as being the overriding one. He is now living on his own, unemployed, living on sickness benefits or whatever, unsure of where things are going in the future. There are all sorts of possibilities of things getting better or things getting worse".

1. Dr Burges–Watson is of the opinion that, after the litigation is concluded, the likelihood of Mr Davies improving with treatment is increased. But whether the increase is likely to be significant is very speculative.

1. The plaintiff's brother Mr Raymond Davies satisfactorily corroborated the plaintiff concerning the plaintiff's enjoyment before the accident of caravanning, boating, water skiing, fishing, camping and some walking. He described the plaintiff as fit and healthy before the accident. He confirmed that the plaintiff did his own car maintenance before the accident but does not do that work now.

1. Mr Raymond Davies described the plaintiff as an outgoing personality as a young person. However, he remembers the plaintiff suffering hair loss as a lad. That continued for a good number of years and "walking around the streets with a beanie on his head affected him. He would come home at night and be crying". But when the plaintiff's hair came back and he had his car again he was outgoing and seemed to enjoy life.

1. Mr Raymond Davies visited the plaintiff at Easter 1986 and found him building an extension to the house basically doing the work himself.

1. Mr Raymond Davies visited the plaintiff again at Easter 1987. Then he found the plaintiff in constant pain. The plaintiff was no longer able to help with the building work. The plaintiff appeared to have problems moving around and could not walk very far. The garden was in a bad state. At that stage Mr Raymond Davies felt that the plaintiff was looking forward to getting back to work as soon as possible and was confident about the future thinking that his problem was a short term one.

1. Mr Raymond Davies again visited the plaintiff at Easter 1988. He found the plaintiff still in the same condition as in 1987. The plaintiff was more depressed. Relations in the family were more strained then. The plaintiff did not have as much tolerance for people as he once did. The plaintiff's level of activity in 1988 was much the same as in 1987, basically nil.

1. As to the plaintiff's situation at about the time of the trial Mr Raymond Davies said that the plaintiff gets out of bed, makes breakfast, goes to the toilet block and goes for a stroll around the caravan park. He drinks huge amounts of tea. He dawdles down to the shower block and dawdles back and basically his level of activity is nil. He tires very easily. His level of confidence is down now. He is "absolutely worn out" as a result of the long period in court.

1. Mrs Jillian Davies also described the plaintiff as a healthy active man before the accident.

1. Mr Ronald Cavanagh deposed to heavy building work which the plaintiff did before the accident both on Mr Cavanagh's home and the plaintiff's own home. Before the accident the plaintiff was a very active man who mixed well. Mr Cavanagh described the apparent condition of the plaintiff since the accident in a way which corroborates testimony already outlined.

1. Mr Tiller has been a friend of the plaintiff for a decade. He confirmed that the plaintiff was a competent repairer of cars and a handyman and got pleasure from that kind of work. He visited the plaintiff in December 1985 and found that he was renovating his home. Mr Tiller finds that now the plaintiff is still not able to sit for any length of time without discomfort.

1. Mr Michael Riley was a fellow employee with the plaintiff with Lysaght at Spreyton. Mr Riley was a leading hand and the plaintiff's immediate superior. He said that the plaintiff did mainly manual tasks and his performance was excellent. It was fairly strenuous work in some respects. The plaintiff was very well respected at work and got on with everybody.

1. Mr Riley saw the plaintiff when the latter attempted to return to work after the accident. Mr Riley found that the tasks were just too hard for the plaintiff and he appeared to be in a lot of pain. Mr Riley said the plaintiff "had sort of come from a man in his thirties to a sixty year old man".

1. Mr Raymond McKenzie was an important witness being conspicuously reliable and well informed. He has been a minister of the Church of Christ for forty years. He has been a member of the Inter–Church Trade and Industry Mission for 14 years. That is an independent counselling service operating in industry. Mr McKenzie has been Chaplain to BHP formerly Lysaghts at Hastings, Victoria for 14 years, that being the plaintiff's place of employment until he came to Tasmania in 1985.

1. He first met the plaintiff 14 years ago. At that time he counselled the plaintiff concerning marital problems. It became evident that a large part of the marital problem was the plaintiff's drinking. Mr McKenzie took the plaintiff to AA and a marked improvement was achieved. To Mr McKenzie's knowledge the plaintiff has not had a drink since that first AA meeting. However, the marriage could not be saved.

1. About the time the plaintiff joined AA an employee's assistance scheme was started at Lysaght. It was designed to help employees who had alcohol and other drug related problems. The committee consisted of the doctor at Lysaght, Mr McKenzie the welfare officer and five employees representing the 1,500 employees at the plant. Mr McKenzie said that they felt so highly of the plaintiff and the marked change in his behaviour that he was put on the committee. He proved to be a valuable member.

1. Mr McKenzie said that, before the plaintiff came to Tasmania, he was a very active man around his home. The plaintiff was very good and clever working on cars and doing jobs around the house. At that time the plaintiff was outgoing, healthy and heavily involved in AA He described the plaintiff as a popular person at that stage, a good worker, well thought of by his work mates and coped with life very well.

1. Mr McKenzie saw the plaintiff again after he returned to Victoria. That was in early 1989. He said he found that the plaintiff has lost a lot of confidence, appeared to be in a good deal of pain and was not able to do very much at all. The plaintiff was worried about his future, he wanted to do some kind of meaningful work but was not able to do it because of pain.

1. Mr McKenzie has been encouraging the plaintiff to take up some kind of rehabilitation because it is not good to be sitting around a caravan all day. He finds the plaintiff frustrated and worried about his finances. Occasionally the plaintiff has been emotional and that has made his voice "shaky" like an old man.

1. Mr McKenzie has had experience in trying to return injured workers to the work force. He finds that firms are reluctant to take on anyone who has been on "Workcare", unless it is simply a case of a return to the old work place.

1. The defendant called a practising psychiatrist, Dr Sale. Dr Sale said that the plaintiff's history disclosed three principal health problems prior to the accident. They were:

(1)A condition of alopecia areata, a condition leading to loss of hair. Dr Sale described that condition as something of an enigma but stress is considered to be one of the factors likely to lead to it.

(2)Alcoholism, but he later became an abstainer.

(3)The accident of 1982 or 1983. As to that the plaintiff told Dr Sale that there was continuing pain from that injury but that the pain from it did not restrict him in his lifestyle or work.

1. Dr Sale found the plaintiff a very intense man, noticeably anxious and, as the interview progressed, he became progressively more hostile. Dr Sale believed that the plaintiff certainly had an anxious disposition which was a characteristic the plaintiff had before the accident, "he was constitutionally anxious in some sort of way". Dr Sale decided that the circumstances satisfied the diagnostic criteria for "somataform pain disorder as listed in the DSM3". Dr Sale explained that basically that means pain in the absence of sufficient organic pathology to explain that level of pain.

1. Dr Sale felt that the plaintiff's anxiety was most likely due to the childhood experience of suffering the disorder of alopecia areata. A child with very significant hair loss would be expected to have a thoroughly blighted childhood "if it lasted as long as 10 years". (I note in parentheses, so that it will not be overlooked, that in the history taken by Dr Burges–Watson there is a reference to the plaintiff's life being threatened at age 17 years, "bloke tried to run me down one night").

1. Dr Sale did not find any reason to doubt the plaintiff complaints of pain.

1. Dr Sale saw the plaintiff as very defensive which he said was a common feature with plaintiffs. They become defensive, antagonistic, feel the need to justify themselves and the litigation itself becomes part of their problem.

1. Dr Sale accepts that the treatment suggested by Dr Cacek is wholly appropriate. Dr Sale feels that it will be much easier to treat the plaintiff once the litigation is over. The litigation is a major impediment to improvement. Resolution of financial, accommodation and matrimonial problems will also assist. Dr Sale expressed himself as having an optimistic view about the likelihood of the plaintiff being improved once the litigation is finalised. On clinical grounds he felt the litigation was blighting any chance of recovery.

1. At the conclusion of his examination–in–chief Dr Sale said, "With the treatment approach Dr Cacek is going to take, and assuming that he will probably be referring occasionally for advice to specialist colleagues, I would think his prognosis is one that I'd be in accord with; that two years time return to work with some restriction is eminently achievable". The restrictions Dr Sale had in mind were those Dr Cacek mentioned.

1. During cross–examination Dr Sale said the prognosis would be far more favourable if the plaster jacket had not gone on and the treatment now contemplated had taken place then. The longer the illness goes on the more entrenched is the behaviour and the more difficult that behaviour is to shift.

1. I am not sure that Dr Sale's professed optimism survived a cross–examination. There was the following exchange virtually at the end of the cross–examination:

"QNow in respect to your general prognosis, and having answered the questions that I've put to you about the unfavourable aspects, I want to suggest to you that the realistic position with this man is that he is not likely to be in a position where he is going to be able to be employed at all in the future. That's realistic as against hopeful position. The realistic position with this man is that, is it not?

AI think, then, it really becomes very speculative. I would see the situation as 50/50 one where there is a 50 per cent chance that he will continue in the role of an invalid and live a life of disability. The other chance is that the rehabilitation programme will have an impact and his own motivation will also be rekindled, in which case I think there are opportunities for him. So I really think it is very much a 50/50 sort of situation".

1. I have made an exhaustive analysis of the evidence because the case is an unusual one which creates concern and demands circumspection. The analysis leads me to the clear conclusion that the plaintiff is a genuine person and the substance of the facts he asserts should be accepted. It will be seen from the analysis that his evidence is strongly corroborated by satisfactory lay witnesses and also by medical witnesses.

1. I find that, as a result of the accident, the plaintiff has a permanent incapacity for heavy work. That means that he has a permanent incapacity for the maintenance assistant class of work which he did for Lysaght for so long. That means also that he has a permanent incapacity for all heavy labouring work. That conclusion means that he is in a serious situation. He has had little education and, consequently, is not a suitable candidate for the great majority of sedentary occupations.

1. I accept Dr Cacek's opinion about the plaintiff's present condition. Dr Cacek has a big advantage over the other expert witnesses because he has known the plaintiff for so long and has treated him many times. Based principally on Dr Cacek's evidence I conclude that the plaintiff is permanently unfit for work which involves repeated bending. He is permanently unfit for work as a motor vehicle driver. I infer that he is permanently unfit for jobs involving a lot of walking or a lot of standing. He is also permanently unfit for work involving heavy lifting.

1. The conclusion then is that he is permanently confined to light work. Of course, at the moment it is clear that he is totally unfit for work and has been totally unfit for work since the accident.

1. Counsel for the plaintiff seek a verdict based on the conclusion that, because of the injury suffered in the accident, the plaintiff is totally and permanently unfit for work. I find that such a conclusion would be contrary to the weight of the evidence. Mr Morgan is the plaintiff's witness and he believes that the plaintiff in due course will be fit for light work. Dr Cacek is hopeful that he can get the plaintiff back to light work. Dr Burges–Watson accepts that it is certainly possible that the plaintiff will recover to some extent. Dr Sale finds it "very speculative" but "very much a 5050 situation".

1. Of course, I do not regard myself as a prisoner of the medical experts for they have no particular expertise in relation to the employment market. Sound judgment in this case requires careful consideration of the medical, social and labour market factors. There are social and environmental, including family, factors which are important here and I list some of them:

(1)He is now living back in the area where he has his daughters, his parents and his brothers. He can expect strong moral support certainly from the parents and brothers. And he can also expect moral support from his friends.

(2)At some not far distant stage he will have the litigation behind him and it will not be necessary for him "to live from hand to mouth". He will have a capital sum which itself creates options.

(3)At that stage he should be able to move into better housing.

(4)The divorce business will be finally cleared up, presumably at a reasonably early date, and that may well create social opportunities flowing from psychological adjustments.

1. With what is primarily a psychological problem these factors are important. They may well lead to a strong motivation to get back to work.

1. In order to establish a ceiling for the claim for impairment of income earning capacity I propose, as an initial step, to do the calculations which are appropriate on the basis of a finding of total and permanent incapacity for work resulting from the accident. I then propose to scale the resulting figure down to reflect the less serious findings which have been made.

1. The plaintiff was born on 14 September 1950 and, his age, at the commencement of the trial was approximately 39¼ years.

1. It is agreed that the net wage for a single man employed for 38 hours per week by Lysaght Brownbuilt Industries as a roll form operator between 3 July 1989 and 3 October 1989 was $283.55. It is agreed that, in addition, overtime was available at an average figure of $8 per week. The total net figure is therefore, $291.55. Counsel are agreed that Table 3 at p544 of Luntz: Assessment of Damages 2nd ed may be used.

1. I accept the calculation submitted by counsel for the plaintiff subject to the one modification, namely, that the discount for contingencies other than premature death should be 15 per cent and not 4 per cent. Using a round figure that produced a result of $218,000.

1. The figure of 15 per cent is justifiable because immediately before the accident, the plaintiff had a constitution which was psychologically frail. In addition his lower back had been injured twice, and hence, was more vulnerable to further injury. Dr Cacek's evidence and the radiologist's reports to which he referred showed that at the time the plaintiff had a vulnerable spine. The combination of psychological and pathological factors rendered him very much more likely than an average worker to suffer financial loss from unemployment due to sickness, accident or inability to continue to cope with heavy work.

1. The treatment and rehabilitation of the plaintiff will probably take a long time. The best case scenario seems to be that he should be treated as totally deprived of income earning capacity for two years although, of course, it is recognised that two years might prove to be too short a period or too long a period. However, the evidence suggests that calculations should proceed with that period in mind. If he gets back to light work at about that time he will be subject to greater risks of unemployment thereafter than an average worker and at a greater risk than he would have been if this accident had not occurred. Weight must also be given to the possibility that efforts at rehabilitation will fail in the future as they have failed in the past. In the end, there are so many factors which can be valued only by a broad estimation that one must do the best one can keeping steadily in mind that one does not seek a perfect compensation but a moderate sum which it is just for the defendant to pay and the plaintiff to receive. My conclusion is that the figure under this head should be in the range $120,000 – $130,000.

1. On the aspect of pain, suffering and loss of amenities, he has certainly had a very miserable time for over three years now. It is clear that he has a long way to go before his life is back to a reasonably tolerable state. It is clear that, as a result of the accident, he will suffer increased pain for the rest of his life. He is at a greater risk of further injury now than he was before the accident. A moderate, just and reasonable figure under this head is within the range $30,000 – $35,000.

1. Then there are the following items:

Past economic loss to 28 November 1989  $12,342.24

Past medical expenses, as admitted by  $  1,169.80
defendant – additional amounts not
proved.

Future medical expenses say  $10,000.00

$23,512.04

1. One is required, as a final step, to consider what single sum is appropriate for general damages having regard to all the circumstances of the case and the range of figures previously mentioned for the two individual heads. The general damages are assessed in the sum of $160,000.

1. The final result, then, is a figure of $147,860.78 made up as follows:

Special damages as above  $   23,512.04
General damages as above  $ 160,000.00

Workers' Compensation already
received.  $   54,163.10
$237,675.14

  

Less 15 per cent  $  35,651.26
  $202,023.88
Less payment already received  $  54,163,10

$147,860.78