De Gelder v Rodger
[2012] NSWDC 191
•15 October 2012
District Court
New South Wales
Medium Neutral Citation: De Gelder v Rodger [2012] NSWDC 191 Hearing dates: 21, 22, 23, 24, 25, 28 May, 20 June, 13, 14,15,16 & 17 August 2012 Decision date: 15 October 2012 Jurisdiction: Civil Before: Levy SC DCJ Decision: See paragraph [290] for orders.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: TORTS - motor vehicle accident - referral of claim to Medical Assessment Service for further assessment pursuant to s 62(1)(b) of the Motor Accidents Compensation Act 1999 Legislation Cited: Civil Procedure Act 2005, s 5D, s 5E, s 56
Evidence Act 1995, s 60
Motor Accidents Compensation Act 1999, s 62(1)(b)
Uniform Civil Procedure Rules 2005, r 31.23, Sch 7Cases Cited: Dasreef Pty Ltd v Hawchar [2011] HCA 21
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
De Gelder v Motor Accidents Authority of NSW [2009] NSWSC 1173
Mahony v J Krushich (Demolitions) Pty Ltd [1985] HCA37
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
March v (E & MH) Stramare Pty Limited [1991] HCA 12;(1991) 171 CLR 506
Mason v Demasi [2009] NSWCA 227
Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383
Rodger v De Gelder & Anor [2011] NSWCA 97
Rodger v De Gelder & Anor (No 2); [2011] NSWCA 235
Rodger v De Gelder [2012] NSWCA 167
Strong v Woolworths Ltd [2012] HCA 5
Trazivuk v Motor Accidents Authority of NSW & Ors [2010] NSWCA 287
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158Category: Procedural and other rulings Parties: Adam Roy De Gelder (Plaintiff)
James Norman Barr Rodger (Defendant)Representation: Mr P Semmler QC with Mr A Canceri (Plaintiff)
Mr W Fitzsimmons (Defendant)
CMC Lawyers (Plaintiff)
Curwoods Lawyers (Defendant)
File Number(s): 2010/229350 Publication restriction: None
Judgment
Table of Contents
Nature of case - Interim findings
[1] - [2]
Need for interim findings
[3] - [5]
Causation issue underpinning referral to MAS
[6] - [8]
Delay in finalising the proceedings - the MAC Act scheme
[9] - [11]
Justification for referral back for further MAS assessment
[12] - [15]
Matters for consideration in interim findings
[16] - [21]
Credit
[22] - [24]
Facts underpinning the causation issue
[25] - [52]
Plaintiff's factual account
[26] - [33]
Defendant's factual account
34] - [41]
Interim findings concerning the events of the collision
[42] - [52]
Injuries as initially appreciated by plaintiff
[53] - [55]
Prior injuries
[56]
Pre-existing osteoporosis of plaintiff's thoracic spine
[57]
No treatment during first three months after accident
[58]
Episode of low back pain on 30 November 2005
[59]
Chiropractic treatment after 30 November 2005 episode
[60] - [61]
Disabilities
[62] - [65]
Pre-accident employment
[66] - [69]
Post-accident employment
[70] - [74]
Medical assessments of plaintiff
[75] - [171]
Pre-accident medical assessments of plaintiff
[76] - [78]
Post-accident medical and allied consultations
[79] - [172]
Medical Assessment Certificates
[173] - [218]
Dr Ostinga - WorkCover Certificate
[178] - [179]
Dr Vickery - MAS Certificate
[180] - [181]
Dr Graham - MAS Certificate
[182] - [187]
MAS Review Panel: Drs Gibson, Selby-Brown, Fearnside
[188] - [197]
Material provided by Dr Maxwell
[198] - [207]
Dr Best - MAS Certificate
[208] - [218]
Consideration of oral evidence from medical experts
[219] - [257]
Dr Bowers
[220] - [228]
Dr Harvey-Sutton
[229] - [237]
Dr Preston
[238] - [257]
Interim conclusions on cause of thoracic fractures
[258] - [285]
Disposition
[286]
Future re-listing of the proceedings
[287] - [288]
Costs
[289]
Orders
[290]
Nature of case - Interim findings
The plaintiff, Adam De Gelder, was injured in a motor vehicle accident that occurred at about 6.00pm on Thursday 24 August 2005. At that time the plaintiff's stationary vehicle was forcibly struck from behind by a vehicle being driven by the defendant, James Rodger, on the Pennant Hills Road exit ramp of the M2 Motorway, northwest of Sydney.
In these proceedings the plaintiff claims damages for the injuries he sustained in that accident. Those injuries were principally to the plaintiff's neck, thoracic and lumbar spines. Breach of duty of care has been admitted by the defendant. The remaining damages issues must be determined under the scheme provided by the Motor Accidents Compensation Act 1999 ["MAC Act"].
Need for interim findings
A need for these interim reasons has arisen because the plaintiff has made a compelling case for an adjournment of the hearing of the present proceedings so that the question of the nature and extent of the plaintiff's injuries may yet again be considered by the Medical Assessment Service ["MAS"] pursuant to s 62(1)(b) of the MAC Act. The plaintiff has invoked this procedural step as he wishes to have incorporated into the ultimate assessment of his damages, an award of damages for non-economic loss.
Absent the issue of a further MAS certificate providing a Whole Person Impairment ["WPI"] assessment exceeding 10 per cent, which is the current position, the plaintiff is disentitled to damages for non-economic loss. That position has prevailed because the endpoint of the MAS process determined that the claimed fractures identified in the plaintiff's thoracic spine were not occasioned as a result of the accident. The plaintiff strongly disputed that conclusion.
The case has proceeded over 12 hearing days to the stage of completion of evidence: May 21, 22, 23, 24, 25, 28, June 20, August 13, 14, 15, 16 and 17, 2012.
Causation issue underpinning referral to MAS
The pivotal matter at issue in the proceedings is the question of whether the several compression fractures detected in the plaintiff's thoracic spine by CT scans taken on 25 September 2006, were in fact caused by the subject accident. Those CT scans were taken some 17 months after the accident. A complicating feature for the resolution of that causation question is the detected presence of osteoporosis in the plaintiff's thoracic spine at the time those CT scans were taken. These matters are at the centre of a medical controversy on the issue of causation.
An aspect of the damages consequences of that causation issue cannot be finally determined at the present stage of these proceedings because the plaintiff does not have the benefit of a WPI certificate in excess of 10 per cent, which is why the plaintiff wishes to have the matter referred back for a further MAS assessment. The justification for referral back for a further MAS assessment is that additional information has become available that is capable of having a material effect on the outcome of the most recent MAS assessment.
The procedure presently invoked by the plaintiff is unlike the position that would have ordinarily prevailed at common law, where the causation question would otherwise have been determined relatively quickly, without the parties having to first proceed through the further statutory MAS assessment processes, including possible judicial reviews and appeals concerning such procedures, as has occurred in the past in this case, in which the parties have variously sought to assert and defend their rights and entitlements arising under the MAC Act scheme.
Delay in finalising the proceedings - the MAC Act scheme
In this case, the cumulative processes described in the preceding paragraph have resulted in the parties incurring considerable delay, inconvenience and expense over a number of years: De Gelder v Motor Accidents Authority of NSW [2009] NSWSC 1173; Rodger v De Gelder & Anor [2011] NSWCA 97; Rodger v De Gelder & Anor (No 2) [2011] NSWCA 235; Rodger v De Gelder [2012] NSWCA 167.
The plaintiff understandably complains, with some considerable force, that the cumulative administrative delays and expense that have been incurred in the course of the progress of his claim under the MAC Act scheme, have resulted in him becoming the victim of injustice due to the delay in finalising his claim.
Unfortunately, the powers provided by s 56 of the Civil Procedure Act 2005, which mandate that courts make orders pursuant to the Uniform Civil Procedure Rules 2005 to facilitate a just, quick and cheap resolution of proceedings, do not also extend to the making of orders to the same effect during the period claims such as this must proceed along the administrative pathways that are required under the MAC Act scheme. The parties now face what is understood to be many months of anticipated delay in the finalisation of a further MAS assessment before the matter can be re-listed for further argument and finalisation of this litigation.
Justification for referral back to MAS for further assessment
During his opening address on the first day of the case, on behalf of the plaintiff, Mr Semmler QC foreshadowed that the plaintiff would be seeking an order for referral for a further medical assessment under the scheme of the MAC Act before the case proceeded to a final judgment.
He foreshadowed that a decision on this issue may only be reasonably arrived at after weighing the relevant evidence in order to reach a reasoned conclusion on the causation issue, on the balance of probabilities, and that this should await a consideration of the overall evidence in the proceedings: T14.37. The case proceeded on that basis, and the parties proceeded to call all available and admissible lay, medical and other evidence in their respective cases.
The defendant initially opposed the plaintiff's proposal for a referral for a further MAS assessment. The matter then proceeded to a full hearing. However, at the conclusion of the case, on the 12th day of the hearing, the defendant consented to the plaintiff's proposal for his claim to be referred back for a further MAS assessment: T740.46.
The defendant's consent for referral back in order that a further MAS assessment take place was entirely appropriate in the circumstances because the evidence adduced at the trial obviously disclosed additional information capable of having a material effect on the outcome of the previous assessment: s 62(1)(b) of the MAC Act; Trazivuk v Motor Accidents Authority of NSW & Ors [2010] NSWCA 287.
Matters for consideration in interim findings
The plaintiff has submitted that since the evidence has closed, in making an order for remittal of his claim for a further MAS assessment, I should set out my interim conclusions and interim findings on factual matters and on the pivotal causation issue following a review of the evidentiary matters that have led to the now accepted conclusion that there is additional information capable of having a material effect on the outcome of the previous MAS assessment.
Although any consideration of causation, and any such interim conclusions expressed in these proceedings, would not ordinarily bind a MAS Assessor, however, given that 12 hearing days, and the related resources of the parties have been expended on the matter to this point, and at a significant cost, I consider that it is only appropriate that I set out the reasoning which has led to the conclusion that additional information has relevantly arisen to justify a referral for a further MAS assessment. To achieve this, it is necessary to trace and record the relevant events that have led to this point, including relevance to the question of costs.
Furthermore, now that the matter is to be referred back for a further MAS assessment, it is therefore understood to be very likely that any subsequently resumed hearing will not take place for many months, and well into 2013.
Accordingly, there is a reasonable expectation on the part of the parties that I should record some interim findings that will facilitate the thread of the matter being taken up again on the resumption of the hearing for the purposes of ultimate finalisation of the matter. In this regard, reasonably in my view, the plaintiff has requested that I record my interim findings on the critical causation issue that has arisen on the medical evidence. Ultimately, that course was not opposed by the defendant: T740.46.
With that purpose in mind, in the paragraphs that follow, after setting out my interim views on the credibility of testimony, I propose to trace the facts of the accident, the injuries sustained, the treatment and medical assessment of those injuries, the effects on the plaintiff's employment, the chronological origins of the causation dispute, and the successive MAS assessments that have led to the present circumstances.
The endpoint of that process has led me to the interim conclusion that on the required standard of proof, on the evidence adduced, on the balance of probabilities, the plaintiff has overwhelmingly proven that his thoracic compression fractures were caused by the subject accident. I conclude that it would be anomalous for that position to remain unrecognised in the MAS assessment process, and the plaintiff should be afforded the opportunity of seeking to rectify that anomaly.
Credit
The plaintiff was born in 1970. He was aged almost 35 years when injured. He is presently aged 42 years. Before the accident he led an active life. In his previous sporting activities, he was a competition cyclist and an accomplished archer, activities from which he derived significant pleasure. He is married with three children. He lives on a semi-rural property which he was in the course of developing for his family. He started his working life as a sheet metal tradesman. Before the accident he had risen to a senior supervisory position in site management of major building projects in the building industry. He held very good prospects for advancing to a more senior and less physically demanding position as a project manager.
I found the plaintiff to be an entirely credible witness who gave his evidence honestly and with an air of restraint and stoic understatement. I did not consider that his evidence was in any way improbable or unlikely to be true in any material respect.
I also found the defendant to have given his evidence according to his honest belief as to how the events in question occurred. Where the evidence of the plaintiff and the defendant differed on some details as to how the accident occurred, the reliability of the evidence of the respective witnesses stands to be evaluated according to its content on particular matters of dispute.
Facts underpinning the causation issue
At the centre of the causation dispute is the question of conflicting evidence concerning the likely extent of the force of the impact in the accident in question. An impression of the force of the impact between the two vehicles can be obtained from the accounts given in evidence by the plaintiff and the defendant concerning the events of the collision.
Plaintiff's factual account
At the time of the accident the plaintiff was driving towards his sister's home in Dural on his way from work as he was intending to stay there overnight. He drove off the M2 Motorway and onto the Pennant Hills Road exit. He had stopped his vehicle behind a line of stationary traffic whilst waiting for a change in the red traffic control light that was ahead of him. As that traffic light turned green, the plaintiff removed his foot from the brake in order to prepare to accelerate forward once the flow of traffic ahead of him had recommenced. As he was about to move forward he heard the screech of a vehicle from behind. He then intuitively looked into his rear view mirror but before he had a chance to see anything, he felt his vehicle had been struck from behind with significant force.
The plaintiff said that in the course of those events he felt himself being pushed forward in his seat and then being forced back into his seat. His vehicle was pushed forward some metres, he thought probably 10 metres, before he could slam on his brakes and pull up his vehicle. In these events he said his vehicle was out of his control. He estimated, that in these events, his vehicle had been moved forward about 20 metres from the point of impact.
The plaintiff said he did not know how he had managed to avoid hitting the vehicle in front of him in those events. The plaintiff described his perception of the interval of time involved in those events as being less than a second. In those events he said that he had felt a severe force, the like of which he had never before experienced, travel through his body. He described how after his body had been forced forward, his head and torso were then forced backwards, with what he described as being a lot of force. At the same time he felt his hand come off the steering wheel and hit something, which he thought was the windscreen pillar. He stated that the force of the collision had dislodged the rear view mirror that was glued into position on the windscreen of his vehicle.
The contemporaneous account given by the plaintiff when he filled in his accident report the next day referred to his vehicle having been struck from behind whilst stationary in traffic, at a speed of approximately 90kph, resulting in him experiencing pains in the neck, shoulder (sic) and in the middle and lower back: Exhibit "F".
The plaintiff stated that at that time he felt that he was in a severe state of shock. He described the experience as surreal. This was even to the extent that he did not have much of a recollection of talking to the driver of the car that struck him, other than to exchange particulars. He said he did not have much of a recollection of the time that then elapsed, or even of driving to his sister's home, where he had planned to stay overnight. He said that in those events, when he got to his sister's home, he had started to process or absorb what had happened to him. At that time, he said the reality of the shock and the pain had started to affect him.
The plaintiff described having inspected the front end of the defendant's vehicle, and having seen the whole front end pushed back to the extent that the radiator was pushed onto the motor. He stated that the defendant drove his vehicle away from the scene.
The plaintiff described the damage to his own vehicle in terms that indicated the rear end of his vehicle "had been dented in ... and ... had shrunk". He described the gaps that were usually located between the doors of his vehicle as having closed or "gone", which gives rise to an inference of some significant distorting force having been applied from behind.
There is no dispute that the plaintiff's vehicle was later written off by his insurer. Notwithstanding the damage that his vehicle had sustained, he proceeded to drive it for a short distance away from the scene. The markings on the property damage insurer's diagrammatic assessment report on the damage to the plaintiff's vehicle, shows that it was damaged in the areas of the rear bumper and boot area. The insurer's letter advising that the vehicle would be written off described the damage as being extensive: Exhibit "E".
Defendant's factual account
The defendant is a general manager for a company in the coffee industry. He stated that shortly before the accident he had been driving on the M2 Motorway, where he had been travelling at 100kph onto the exit ramp at Pennant Hills Road, where he had slowed down because of the reduced speed limit of 60kph at that point.
The defendant stated that a bank of stationary traffic had appeared in his vision ahead of him more quickly than he had anticipated. In these circumstances, he had slammed on his brakes, but he had nevertheless collided with the rear of the plaintiff's vehicle. He qualified his evidence by stating that he could not be accurate. He thought that the collision occurred at a point about 100 - 200 metres after his entry onto the exit ramp. He thought the length of the exit ramp was about 300m.
In the context of the defendant being unable to be accurate in his descriptions, he thought he had slowed from the motorway speed of 100kph to the exit ramp speed, which was 60kph. I infer from this evidence that he was seeking to convey the impression that the collision occurred when his vehicle was braking from a speed of 60kph. That said, the defendant did not seek to convey an impression that his evidence concerning speeds or distances was accurate.
The defendant estimated that after the collision, the plaintiff's vehicle moved forward for a distance of what he described as being between 1 and 3 metres. The defendant stated that after the collision he backed his vehicle away from the plaintiff's vehicle. The defendant stated that the front bonnet and bumper bar of his vehicle had been crumpled and there had been some damage to his radiator. He said that although he had driven his vehicle about 1.5kms from the scene, he was worried about his radiator over that journey. He said that in the collision, the airbags on his vehicle had not activated, a matter to which I shall shortly return.
The defendant agreed that the back bumper bar of the plaintiff's vehicle had been pushed in. In cross-examination, he was not able to say whether, at the time of the collision with the plaintiff's vehicle, his own vehicle had been travelling at more than 60kph. He agreed it was possible that this was so. He sought to avoid answering questions concerning the degree of force or violence involved in the collision with the plaintiff's vehicle: T550.45 - T550.48. He agreed that at the time of the collision, he was in the process of slowing down from 100kph to 60kph: T552.11. He acknowledged that he could not give accurate evidence of the braking of his vehicle or the duration of such braking.
The defendant fairly acknowledged he was at fault in the events of the accident. He agreed that he was shocked by the collision. He also agreed that the force of the collision made him consider that he might have caused the plaintiff to suffer an injury. He agreed the damage to his own vehicle was sufficient for it to be later towed away.
The defendant agreed that it was possible that he had not seen the plaintiff's vehicle because it had not displayed a brake light. I consider that this was most likely because the plaintiff had at that time taken his foot off the footbrake in order to then accelerate. The defendant agreed that he had acted with a panic reaction in applying the brakes at the scene. In giving that evidence, it was clear that the defendant found it hard to be accurate in recounting the events in question.
It is clear that in this litigation, the admission by the defendant of a breach of duty of care was appropriately made.
Interim finding concerning the events of the collision
In comparing the respective versions of the events of the collision, my interim conclusion is that the plaintiff's account should be preferred. This is so because it was more detailed as to the events compared to that of the defendant, who clearly, was not keeping a proper lookout and was therefore in a lesser position of advantage to accurately take in the relevant events.
Furthermore, given that the defendant stated he was slowing down from a speed of about 60kph at the time of impact, the extent of the damage to both vehicles, as described by the plaintiff, and which I accept, indicates it was unlikely that the plaintiff's vehicle was pushed forward a distance of only 1 to 3 metres, as estimated by the defendant. Compared to the less detailed version of events put forward by the defendant, I prefer the more detailed account given by the plaintiff as being more likely to be correct, noting that the plaintiff's account was not inherently or glaringly improbable.
I therefore find that the impact between the two vehicles occurred with some considerable force, with the plaintiff's vehicle being stationary at the time it was hit, and when the defendant's vehicle was travelling at a speed somewhere between a little under 100kph or 90kph, as described by the plaintiff in Exhibit "E", and around 60kph or slightly less, as indicated by the defendant. On the evidence, it is not possible to identify the speed at impact with any degree of precision.
In arriving at these interim conclusions I have not overlooked the reports and opinions of Mr Keramidas dated 20 October 2008 and 5 January 2009 that were tendered by the defendant: Exhibit "4".
In my view, the evidence of Mr Keramidas takes on a much lesser significance in the causation analysis in this case once it is recognised that the unchallenged medical evidence is to the effect that compression fractures can occur in a motor vehicle accident involving a relatively low impact speed, and that the force of the collision reported by the plaintiff was of a sufficient force to have caused those fractures ultimately detected in his thoracic spine.
Once this proposition is accepted, which must be so on the evidence in this case, the opinion of Mr Keramidas on the likely speed of the defendant's vehicle becomes a much less relevant consideration on the pivotal causation issue. So too is the question of whether, or why, the airbags on the defendant's vehicle failed to activate in the collision. As there was no mechanical examination of the vehicles after the collision, the reasons for the non-activation of the airbags and this component of the expert evidence, must remain largely speculative.
This is because there was no evidence of the state of operation of the impact sensors which controlled the activation of seatbelt clamp pretensioners as well as the mechanisms that deployed the airbags on the defendant's vehicle. This is a matter of some importance because Mr Keramidas' key opinions were expressed in only general terms.
The first of Mr Keramidas' opinions of relevance in that regard was that when a collision with a vehicle of the GM range collided with a fixed barrier, airbags "generally" deploy at a speed of 18 to 20kph. Mr Keramidas said that the "approximate equivalent" speed of a Holden Astra of the type driven by the defendant into collision with a Ford Falcon stationwagon of the type driven by the plaintiff "would likely require an impact speed of about 40kph". It is plain that there is considerable scope for variations within those assumptions.
The loose assumptions within those opinions are self-evident. Furthermore, the underlying assumption equating a collision between a fixed barrier and a motor vehicle, and a collision between two motor vehicles neither of which were fixed barriers, but which had moved some metres after impact, probably, 20 metres, appear to be fundamentally flawed, and therefore, an unreliable basis upon which to infer a low speed collision, based on the non-deployment of airbags.
Mr Keramidas' opinions were qualified as being of a preliminary nature, and were not based on sufficient data to render the plaintiff's account of a forceful impact improbable. One of the difficulties is that it is not known what degree of braking force the plaintiff managed to achieve after impact, enabling him to bring his vehicle to a stop within 20 metres of the impact, as he described.
Mr Keramidas' supplementary report dated 5 January 2009 was based on "a further letter of instruction dated 23 December 2008" and an enclosed "interview" of the defendant dated 22 September 2008. Neither of those details were available for consideration in the evidence in these proceedings. This therefore makes Mr Keramidas' ultimate opinion of an impact speed as being between 10kph but below 30 to 40kph, difficult to rely upon, or to accept.
Injuries as initially appreciated by plaintiff
After the initial shock of the collision, the plaintiff noticed that he was in a lot of discomfort in his neck, shoulder, in his upper and lower back, and in his legs. It also appears from his medical history that he also injured his right arm, elbow and wrist. Once he had driven to his sister's home he felt ill, and he felt like vomiting. Instead, he dry-retched. He could not recall much of the details of that drive to his sister's home.
The plaintiff said that at the end of that short journey he felt in severe pain in his neck, with radiation all the way down his body and into his left leg. In particular, he identified his thoracic spine, his lower back and his left hip as the sites of pain. He stated that he had never before experienced pain like that in any parts of his body. He stated that once he had sat down, he felt spasms in his back muscles, like "ladders climbing up [his] back". These problems led him to have a sleepless night.
The descriptions summarised in paragraphs [26] to [54] above are of great relevance to fact-finding on the cause of the plaintiff's thoracic fractures and clearly represent additional material for consideration in a MAS assessment pursuant to s 62(1)(b) of the MAC Act, along with the additional medical analysis that I shall identify in due course in these reasons.
Prior injuries
Not unusually for a person who has led an active life both in sport, on the roads and at work, the plaintiff has had a number of previous injuries that have, for a limited time, affected him. There is no reasonable basis for inferring that such previous injuries, which are referred to in the chronology, Exhibit "A", and in the transcript at T.90 to T.94, had any deleterious or lasting impact on the plaintiff. I accept the evidence of the plaintiff in that regard when he said he considered himself to have been tough, vigorous and in sound health before the accident: T94.34. I shall return to this topic when analysing the MAS report of Dr Best dated 28 January 2009, which was tendered and relied upon by the defendant.
Pre-existing osteoporosis of plaintiff's thoracic spine
The osteoporosis detected in the plaintiff's thoracic spine on 25 September 2006 was, on the preponderance of the medical evidence, present there before the plaintiff's accident on 24 August 2005. From the perspective of an analysis of legal causation, the pre-existence of that osteoporosis is not a factor that absolves the defendant from liability in damages because the applicable legal principle is that the defendant must take the plaintiff and his underlying vulnerabilities as he is found. If the accident was a material contributing factor to the plaintiff's thoracic spine injury and related resultant disabilities, this is something for which the defendant must take responsibility, especially where the unchallenged medical opinion of an endocrinologist is that the underlying osteoporosis predisposed the plaintiff to acquiring a back injury: Exhibit "C", Tab 4, page 57: Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, at [18].
No treatment during first three months after accident
Initially, the plaintiff did not seek any treatment for his injuries that resulted from the accident. This was because of his stoic disposition, his ambitious commitment to his long working hours, and the expectation he held at the time that his post-accident discomforts would subside with time, as was his experience with the course taken by the more minor injuries that he had encountered in the past.
Subsequent episode of low back pain on 30 November 2005
On 30 November 2005, a little under 3 months following the motor vehicle accident, the plaintiff sustained a strain to his lower back at work. This occurred when he was assisting some workmen on a building site to place an air-conditioner onto the back of a motor vehicle. After the air-conditioner had been loaded into the vehicle by a forklift, and before the plaintiff closed the rear door of the vehicle, he bent over to ready himself to push the air-conditioner further into the vehicle. In doing so, as he touched the air-conditioner he felt a stabbing pain in his lower back. From that description, which I accept, it does not appear this was so much a straining injury, but rather, a manifestation of the injury that occurred on 24 August 2005
Chiropractic treatment after 30 November 2005 episode
It was not until 2 December 2005, which was a little over 3 months following the injury from the motor vehicle accident, that the plaintiff sought out the assistance of a chiropractor at the suggestion of his employer, and then later, a general practitioner for a medical certificate, that the trail of medical and allied evidence begins. I shall refer to that evidence in greater detail when framing the context of the successive medical reviews of the plaintiff in connection with the analysis of the causation issue.
The defendant's characterisation of the incident on 30 November 2005 was that this represented a new or frank injury. In my view, that stance is not based on any factual evidence, and it does not arise from a reasonable interpretation of the plaintiff's evidence concerning the incident. I consider that the medical opinion asserting otherwise, is based on a flawed assumption concerning the nature of that treatment.
Disabilities
Given that I have accepted the plaintiff as a credible witness, I am satisfied that the medical and allied practitioners who have provided reports following their examinations of the plaintiff, have accurately summarised his complaints. I take those summaries to be evidence of his injuries and disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995.
The plaintiff has ongoing pains in his neck, his thoracic spine and his lumbar spine. He has restricted movements in these areas, which affect his physical dexterity. He experiences frequent and disabling headaches.
He has radiated pains in his limbs, and reduced capacity to sit, drive, stand or walk for prolonged periods. He has reduced capacity to lift, bend and carry. He suffers disturbed sleep, he experiences psychological sequelae including depression, anxiety, panic attacks, frustration and impairment to his interpersonal family relationships.
The plaintiff will have a need for physical, medication and psychological treatment in the coming years. It is plain from the evidence that the ongoing effects of the accident have had, and will continue to have, a significant adverse impact upon the plaintiff's enjoyment and amenity of his life.
Plaintiff's pre-accident employment
Before the subject accident the plaintiff had risen through successive ranks of employment to reach a senior position in site management in the building industry. After leaving school he commenced his employment career by the completion of an apprenticeship as a first class sheet metal worker. He quickly rose to the position of foreman and then to the position of site supervisor on major construction sites. He then rose to the position of team leader and site manager. He held the reasonable ambition of becoming a project manager in the construction industry. He had already obtained distinctions in his examinations for Certificate IV in Small Business Management at TAFE.
The bundle of economic loss material tendered in the plaintiff's case, Exhibit "D", comprised 32 tabs that included the plaintiff's income tax returns, notices of assessment, payslips, trade certificates and qualifications, academic transcripts, testimonials and curriculum vitae. Those documents are supportive of the conclusion that before his accident the plaintiff was an able worker, who had a very strong work ethic and commitment, together with excellent planning and organisational skills, with many competences, including working co-operatively as part of a team.
At the time of the accident the plaintiff's employment was with Triple M Mechanical Services Pty Ltd as a site manager dealing with mechanical services. He was allocated the management of sites where the value of his employer's work projects were between $10M and $20M. The plaintiff's work carried with it high levels of responsibility for timely completion and effective management of labour, materials, logistics and resources. He worked very long hours and was held in high regard by his employer.
At times, the plaintiff's work also required him to regularly become involved in some physical tasks in order to get the job done according to work deadlines. This sometimes involved him manipulating weights of 40kgs on a regular basis and working on ladders. The work had its stresses but the plaintiff clearly managed this, and diligently applied himself to his work in accordance with his ambitions for promotion to the position of project manager in that industry. His position at the time of the accident was one level below that of project manager. Reasonably, he assessed his own prospects of becoming a project manager as being very good. That view was shared by his employer.
Post-accident employment
It was against this background that despite feeling badly affected by pain following the accident, the plaintiff felt the burden of responsibility that compelled him to return to his work on the day following the accident. On working days his habit was to rise at 4.00am in order to be at work at 5.30am. He attended his work the day after the accident because in the circumstances, and at such relatively short notice, he realised that the detail and responsibilities of his current work was not reasonably delegable to others, and because he felt the need and the weight of responsibility to comply with the known work deadlines.
Despite the plaintiff experiencing constant pain in the thoracic spine and in the lower back, as well as in both wrists, his elbows, shoulders and arms, he attended to his work at a time when he was in agony. His employers were made aware of the events of the accident. For a time, they were very understanding of his situation and authorised him to delegate the heavier tasks that were required of him in his day-to-day work. Such delegation was possible because at the time, he had two other site supervisors working under him.
However, the plaintiff experienced difficulties continuing with his pre-accident work duties. He had a number of periods off work and eventually, on 9 July 2007 his contract with Triple M Services Pty Ltd expired. Subsequently, his employment with that company came to an end on 20 December 2007.
Thereafter, on 5 August 2008, following a period of unemployment, the plaintiff obtained work with Omega Cycle Works. He found it difficult to cope with the work and resigned on 4 September 2008. After a further period of unemployment, on 1 October 2010, the plaintiff commenced work on lighter duties within his reduced physical capacities, at a lesser rate of remuneration than his pre-accident employment.
In these interim reasons it is not relevant to further analyse the plaintiff's economic circumstances. The above summary will form the framework for findings on damages concerning the claim for economic loss made by the plaintiff, as set out in the statement of particulars and elaborated upon in the evidence. That analysis will be set out when the occasion arises for delivering a judgment on damages.
Medical assessments of plaintiff
It is relevant to review the entire medical evidence in the proceedings as a backdrop to the analysis of the causation issues.
Pre-accident medical assessments of the plaintiff
The plaintiff's pre-accident medical records kept by Dr Mehta were tendered: Exhibit "C", Tab 4. For the period 1986 to 2003, the entries in those records were unremarkable, and to the extent that they were legible, they appeared to have little relevance to these proceedings. In addition to a number of minor ailments that were recorded from time to time, on 28 June 1995 there was an isolated instance reported of localised tenderness over L4/L5/S1, which resulted in the plaintiff taking 2 days off work. In 1996 there were some consultations concerning some interpersonal family relationship issues, which seemed to have resolved.
The plaintiff has a sibling who had been diagnosed with bipolar disorder. For a time the plaintiff had experiences some symptoms associated with the use of cannabis. There is no evidence that this past activity interfered with his work or his earning capacity.
On 15 November 2004, which was some 9 months before the subject accident, as part of a pre-employment medical check, the plaintiff underwent an x-ray examination of his lumbosacral spine. This was reported as showing no evidence of any spondylosis or spondolysthesis and no obvious disc pathology or lumbosacral abnormality. This x-ray was later described by a rheumatologist as being unremarkable: Exhibit "C", Tab 8. The timing of this x-ray examination would appear to be the subject of Dr Goodman's subsequent commentary at the foot of the first page of his letter dated 11 April 2006 at Tab 2 of Exhibit "C".
Post-accident medical and allied consultations
Before proceeding to analyse the most recent and contentious MAS Certificate which is the focus of the application for referral of the claim back for a further MAS assessment, I propose to set out the chronological sequence of the plaintiff's post-accident medical contacts and assessments as that material is in evidence in the proceedings, and it is therefore necessary that it be considered in order to provide the necessary framework for the analysis of the MAS reports. That chronological sequence appears between paragraphs [80] to [172], as follows.
The first post-accident attendance of the plaintiff on any health care practitioner was on 2 December 2005, when he attended the practice of Mr Angelo Angelopoulos, a chiropractor. He did so at the recommendation of his employer. In view of the suggestion raised by the defendant concerning the treatment by Mr Angelopoulos, and the prospect that the chiropractic treatment had a causative role in the plaintiff's thoracic compression fractures, it is necessary to examine this treatment in some detail.
The letter dated 23 May 2012 from Mr Angelopoulos portrayed the plaintiff's presenting problem as being gradually worsening thoracic, lower back and left sided leg pain that immediately followed a 90kph high speed motor vehicle accident on 24 August 2005. The printout contained within the records provided by Mr Angelopoulos demonstrates that between 5 December 2005 and 23 August 2008, the plaintiff had some 38 consultations with Mr Angelopoulos.
The subsequent letter prepared by Mr Angelopoulos at Tab 5 of Exhibit "C" referred to the plaintiff having had, in addition to advice concerning exercise, "trigger point release therapy in the thoracic and lumbar spine musculature and gentle specific spinal manipulation to the same areas." Mr Angelopoulos referred to this treatment being applied to L5, T12 and T8 in conjunction with core stability exercises. The treatment was discontinued for financial reasons as eventually, the workers' compensation insurer declined to continue to pay for it.
Without more, particularly since the handwritten notes of Mr Angelopoulos are difficult to interpret in part, and in view of the fact that in his letter dated 23 May 2008, Mr Angelopoulos described the spinal manipulations as "gentle". It would appear this was not suggestive of the application of significant forces capable of causing fractures to the plaintiff's thoracic spine. I reach that conclusion because of the evidence of Dr Preston, who said that fractures of the thoracic spine would have been accompanied by acute pain, the plaintiff did not describe there being such pain in association with the chiropractic treatment he received.
On 8 December 2005, the plaintiff was examined by Dr Steven Goodman, a general practitioner, who provided a WorkCover medical certificate which referred to the motor vehicle accident as having occurred some 3-4 months previously. In that context, the certificate referred to another incident having occurred some 8 days previously, when the plaintiff suffered severe lumbar back pain when pushing some objects into the back of a station wagon. Dr Goodman recorded a history of muscle pain and on that occasion his diagnosis of muscle spasm. The reference in Dr Goodman's report to "pushing" must be viewed with caution given the more precise description given by the plaintiff and given the different purposes of summarising medical history and giving more precise evidence of the events in court: Mason v Demasi [2009] NSWCA 227.
Dr Goodman also provided a 3 page handwritten letter to the CTP insurer in which he referred to the back pain for which he had been consulted as being acute lower back pain. He noted the history of muscle pain in the thighs, hamstrings and buttocks on the left side, worse when sitting for a long time. That description gave no indication that the back strain under consideration at that time also involved the plaintiff's thoracic spine.
Dr Goodman referred to the plaintiff's history of having earlier had a motor vehicle accident, and he summarised that history referring to the plaintiff having experienced back, neck and shoulder pain since the motor vehicle accident. The precise region of the back pain from that accident was not specified in the letter. In this context, Dr Goodman stated that he thought the plaintiff had experienced an acute lower back strain in the work incident on 30 November 2005.
Whilst Dr Goodman thought the motor vehicle accident could have contributed to the lower back strain on 30 November 2005, he found it difficult to say which pain was consistent with which injury. He advised the plaintiff to have an x-ray and to continue seeing his chiropractor. In the interim, he gave the predictive opinion that the plaintiff's condition would improve "but there will be further exacerbations such as on 30 November 2005."
In the interim, the plaintiff continued to see the chiropractor, Mr Angelopoulos, for the treatment that was described in Mr Angelopoulos' materials. There is no evidence within those materials of an episode of acute pain that might give rise to a suspicion that such treatment may have caused fractures to the plaintiff's thoracic vertebrae.
On 31 March 2006, at the request of the workers' compensation insurer, the plaintiff was seen by his general practitioner, Dr Mehta, who confirmed the plaintiff's history and stated that the timing of the plaintiff's return to work was unpredictable or uncertain. At that time it was noted that the plaintiff was diagnosed with osteoporosis, which has led to him suffering from depression and anxiety. Dr Mehta noted that the plaintiff was due to return to work on restricted duties on 10 February 2007.
On 14 September 2006, Dr Mehta observed the plaintiff to be very tender over the areas of T3, T4, T5, T6 and also over the L4, L5 and S1 areas. Dr Mehta arranged for x-ray and CT examinations of the plaintiff's thoracic and lumbar spines. In addition to the matters set out in his report, Dr Mehta's notes of 14 September 2006 recorded the plaintiff's complaints of tenderness in the areas described, including tingling and numbness in the shoulders and in the left leg. Dr Mehta also noted the plaintiff had been seeing his chiropractor for treatment, but without improvement of symptoms. Dr Mehta also noted the absence of any imaging taken of the plaintiff's spine to that point in time. She then arranged for the plaintiff to undergo CT scanning of the thoracic and lumbar spines.
On 25 September 2006, the imaging investigations suggested by Dr Mehta were reported to show diffuse thoracic spine osteoporosis, a wedge shaped degree of compression of greater than 20 per cent at the level of T5, which was said to be due to a technical fracture. A CT scan of the lumbar spine of that date showed a mild L4/L5 disc bulge and mild spinal canal stenosis at the level L5/S1. The relevant part of the actual imaging report stated:
"CT Scan of Lumbar Spine
Standard protocol for the lower three vertebrae and intervertebral discs was followed.
At L3/4 the disc is normal. The dimensions of the canal and foramina are normal.
A1 L4/5 there is a mild bulge of the posterior surface of the disc. This is causing a mild canal stenosis. The bones are normal.
AT L5/S1 the shape of the disc is normal. The dimensions of canal and foramina are normal. There is no bone or soft tissue abnormality.
Comment
There is no visible abnormality at the level where the patient identifies his pain in the lower back. The 4th and 5th thoracic vertebrae have wedge shapes consistent with simple compression fractures. There is a mild disc bulge at L4/5."
On 3 October 2006, at the request of Dr Mehta, the plaintiff underwent bone density testing. The plaintiff was then referred to an endocrinologist.
On 4 October 2006, Dr Martin Epstein, a consultant endocrinologist, stated that the bone density scan showed the plaintiff's spine bone density was subnormal and osteoporotic. He did not refer to any particular portion of the plaintiff's spine in making that comment. He suggested a further endocrinological review would be worthwhile.
On or about 10 October 2006, Dr Mehta referred the plaintiff to Dr Epstein for further management of his osteoporosis. Following some feedback from Dr Epstein, Dr Mehta later referred the plaintiff to Dr Russo at a pain management clinic for treatment of his pain related problems because he was showing signs of stress. Dr Mehta scheduled a further review of the plaintiff that was to take place on 12 May 2007.
On 5 December 2006, at the request of Dr Mehta, the plaintiff was again examined by Dr Epstein. After reviewing the plaintiff's history and some results of investigations, Dr Epstein stated that in his opinion, the plaintiff probably had osteoporosis all his life at least to some degree, and that he was pre-disposed to getting a back injury at the time of the accident. He also stated that in his view, it was likely that the accident was the cause of injury to the plaintiff's back.
On 13 February 2007, at the request of the solicitor for the workers' compensation insurer, the plaintiff was examined by Dr John Stephen, a consultant surgeon and spinal surgeon. Dr Stephen saw what he described as plain x-rays of the plaintiff's thoracic and lumbar spines taken on 25 September 2006.
Dr Stephen stated that he agreed with the reporting radiologist that there was wedging of the fifth, and to a lesser extent, of the fourth thoracic vertebra, and an apparent slight depression of the superior end plate of the sixth thoracic vertebra. He said that CT scans of the thoracic spine from T7 to T12 showed "no significant abnormality".
Dr Stephen expressed the view, on the balance of probabilities, considering the violent nature of the collision and the presence of osteoporosis, that it was more likely than not that the plaintiff did sustain a minor crush fracture of the T5 and T4 thoracic vertebral bodies. Properly understood, Dr Stephen's view was that this injury occurred because of the superimposition of the trauma of the accident on the plaintiff's underlying thoracic osteoporosis. This was made clear by his statement that the plaintiff would not have sustained this injury if he did not have osteoporosis.
Dr Stephen stated that the plaintiff could not expect a benefit from physical therapy and said that chiropractic sessions were contraindicated as manipulations are "likely to produce trouble and could even have produced the minor fractures observed in the upper thoracic region". These comments by Dr Stephen have to be read in the light of his subsequent commentaries based on materials and assumptions provided to him for his consideration. This is a matter to which I will return after reviewing the entire array of expert opinions on that issue.
On 19 February 2007, at the request of his solicitor, the plaintiff was examined by Dr Terry Kwong, a consultant rheumatologist. Dr Kwong noted a history of the plaintiff's worsening chronic back pain and depression following the diagnosis of osteoporosis. He also noted the plaintiff had a marked sleep disturbance. Dr Kwong attributed the plaintiff's condition to the motor vehicle accident, and identified a very guarded prognosis.
On 19 February 2007, Ms Anne Sharkey, a clinical psychologist, reported to Dr Mehta that the plaintiff had seen a psychologist at her clinic for counselling. The letter referred to an injury related to workers' compensation, but no further particulars were provided in that initial letter. I infer from the context, that this was a matter related to the subject accident.
On 22 February 2007, in answer to a questionnaire from the worker's compensation insurer, the treating general practitioner, Dr Mehta, advised that insurer that she thought that whilst the plaintiff's osteoporosis in the plaintiff's thoracic spine pre-dated the accident, the accident had probably caused the crush fractures to the thoracic vertebrae as well as causing the lumbar back pain, and that the non-physical component of the plaintiff's problems, namely depression, had flared up because of continuous pain, which had worsened.
On 27 February 2007, at the request of his solicitor, the plaintiff was examined by Dr Peter Conrad, a consultant surgeon. Dr Conrad was of the view that the plaintiff had incurred wedge fractures of his two thoracic vertebrae as a result of the motor vehicle accident. He also noted the plaintiff had superadded symptoms of psychological stress, which he thought required management.
On 28 February 2007, at the request of the solicitor for the plaintiff, Dr Conrad provided a commentary in which he identified the accident as a substantial contributing factor to the plaintiff's WPI.
On 1 March 2007, after seeing the plaintiff, Dr Marc Russo, a pain management specialist, wrote to Dr Mehta advising that the plaintiff had been assessed as a candidate for out-patient cognitive behavioural therapy for management of his pain. Dr Russo noted that the plaintiff also required antidepressant treatment before CBT could proceed. Dr Russo recommended three prescription medications and a multidisciplinary assessment of the plaintiff's needs. On the same date, Dr Russo referred the plaintiff to a psychologist for assessment for entry into the Pain Management Program.
On 12 March 2007, under the letterhead of Innervate Pain Management, Dr Russo wrote to the workers' compensation insurer seeking approval for a multidisciplinary assessment for pain management. On 15 March 2007, Dr Russo arranged for the plaintiff to have a multidisciplinary assessment to assess the plaintiff's suitability for a cognitive behavioural therapy pain management program.
On 28 March 2007, at the request of the workers' compensation insurer, the plaintiff was examined by Dr Allan White, a consultant psychiatrist. Dr White prepared three reports which were addressed to the workers' compensation insurer. For reasons that were not made apparent, all three of Dr White's reports were dated 28 March 2007. Some of those reports did not contain a reference to an acknowledgment of the Expert Witness Code required by UCPR r 31.23.
One of Dr White's 28 March 2007 reports was a two-page letter which described the consultation, the history, the mechanics of the accident, and concluded with an outright dismissal of a relevant connection between the plaintiff's psychiatric problems and the accident in question.
Another of Dr White's 28 March 2007 reports was a two-page letter which addressed a series of 21 questions which had been posed to Dr White by the workers' compensation insurer. In this report, on the basis of what appears to me to be flawed assumptions to the effect that there was no corroborative evidence of a serious accident with the potential to cause serious injury, there being only benign soft tissue injuries, Dr White identified what he described as Abnormal Illness Behaviour as the central issue. He also stated that the plaintiff's psychiatric illness, plus the plaintiff's alcohol and drug use, was a sufficient explanation for the plaintiff's emotional distress. It is plain from that analysis that Dr White did not proceed to consider other, namely, accident related causes for the plaintiff's emotional complaints.
The other of Dr White's three 28 March 2007 reports was a 22 page structured psychiatric report. That report followed Dr White's interview with the plaintiff on the same day as the report.
Dr White thought that on the occasion of his consultation the plaintiff exhibited what he described as disorganised thinking and he remarked that he found it difficult to determine some items of history.
That impression was very different to my own impression of the plaintiff's presentation and evidence in these proceedings. It was also different to the recorded impressions of a number of medical practitioners who had examined the plaintiff and whose reports were in evidence in these proceedings.
Dr White was critical of the manipulative treatment received from the chiropractor, and was sceptical of the benefits described by the plaintiff. Dr White took the view that the plaintiff was smoking marijuana and exhibiting signs and symptoms of hypomania. He took the step of contacting Dr Russo to alert him to that view.
Dr White referred to the plaintiff's complaints as "a litany of physical and psychiatric symptoms" and dismissed them as not being reasonably attributed to the road traffic accident. Rather, he thought that the plaintiff had "Abnormal Illness Behaviour" as his central issue. My difficulty in accepting Dr White's views and formulations is that he does not specifically identify the symptoms he pejoratively describes as a litany. By lumping all the plaintiff's symptoms together in this way he has precluded any useful rational analysis of the true basis of his views that were expressed in that way.
A further difficulty standing in the path of acceptance of Dr White's views is that he appears to have made what I consider to be a factually incorrect assumption that the plaintiff was not in pain at the time of the accident and following, hence his discounting comment at page 7 of his 22 page report as follows:
"It is my understanding that the severity of the pain at the time of the injury is the best clinical indicator of the severity of any soft tissue injury caused by the accident. Gradual or delayed onset of pain suggests other causations such as degeneration, inflammation, infection, cancer, or Abnormal Illness Behaviour."
Furthermore, at page 8 of his 22 page report, Dr White stated that individuals who complain of pain being of 10/10 severity for "benign medically unexplained mechanical injuries can be deemed with reasonable medical certainty to be exaggerating". That view was not consonant with the detected abnormalities found on imaging of the plaintiff's thoracic spine and described as compression fractures. This seems to me to be a further reason to discount Dr White's views.
Dr White's interpretation of the plaintiff having been referred for specialist pain management for what he described as MUPS (medically unexplained physical symptoms) was based on the anecdotal experience "of many clinicians ... as a way of disposing of the patient". That comment did not appear to have any relationship to the plaintiff's problems.
Those statements, together with his reference to exaggeration and "illness affirming" treatments, and Dr White's advice to the insurer (at page 17 of his 22 page report) to obtain independent verification from objective and reliable sources concerning the plaintiff's disability and impairments, suggest that Dr White's analysis looked at only the negative possibilities rather than balancing the analysis with other possible explanations, even if only to exclude them, and is therefore unduly sceptical, and should not be accepted.
Dr White's discounting view of the severity of the plaintiff's injury, where he stated that since the seat in the plaintiff's motor vehicle was not broken, this made a significant spinal injury unlikely, was out of step with the opinions of other specialists in physical medicine disciplines. His own qualifications for making that statement are unclear, which is a further reason for discounting his opinions.
So too is Dr White's resort to the expression of a "little more than medico-legal sleight of hand" to explain the plaintiff's workers' compensation claim as having "been made with absolutely no explanation and with absolutely no justification". Both of these sweeping statements seem to be misplaced. No more explanation is required for the making of a workers' compensation claim than the existence of a legal right to do so. The statement "absolutely no justification" is plainly hyperbole or exaggeration of the true position as revealed by the preponderance of the medical reports that I have already reviewed and summarised thus far.
In my view, the defendant has not established that the chiropractic treatment provided to the plaintiff for treatment of his injuries was "inexcusably bad", or "completely outside the bounds of what any reputable ... [chiropractor] ... might prescribe", or was " so unnecessary or improper that it was a gratuitous aggravation of the injury" or that the plaintiff acted unreasonably in seeking out and accepting the treatment in question, so as to effectively exclude the defendant from liability for any exacerbation of an underlying condition: Mahony v J Krushich (Demolitions) Pty Ltd, at [8].
In this case, that conventional analysis must proceed subject to the requirements of s 5D and s 5E of the CL Act. In that regard, s 5E of that Act provides that the onus of proof of causation rests with the plaintiff. Furthermore, s 5D of that Act requires that the plaintiff must show that were it not for the negligence of the defendant, he would not have suffered fractures to his thoracic spine.
In my view, as is plainly evident from the medical opinions I have summarised above, that onus has been amply discharged by the plaintiff. That view is based upon the preponderance of the medical evidence, as identified in paragraph [262] above.
The evidence to the contrary of that conclusion is found in the opinions of Dr Maxwell and Dr Best.
It is convenient to examine the opinions of Dr Maxwell first, as Dr Best's opinions have clearly been influenced, or as the plaintiff submitted, contaminated, by the opinions of Dr Maxwell.
I consider the opinions of Dr Maxwell, as relied upon by the defendant, to be fundamentally flawed for several reasons. The journal articles relied upon by Dr Maxwell for his conclusions were not authored by him and were not within his area of medical practice. They therefore require evaluation to determine their relevance and application to the plaintiff's circumstances.
The articles in question relate to studies of osteoporosis as found in imaging studies in post-menopausal women who were in a much older age group than the plaintiff, and do not appear to specifically stratify data relating to traumatic causes of osteoporotic fractures, as distinct from factors involving age-related changes and changes in hormonal status in female subjects. In the absence of evidence of any coherent relationship between those studies and the plaintiff's situation suggesting a reliability of those articles, or any authoritative purposeful connection between those studies and the plaintiff's radiological scans, I do not see the relevance of the articles cited by Dr Maxwell.
This is particularly so given that the articles in question appear to have made no study of, or provided no commentary concerning, the causes of thoracic vertebral fractures in persons in the position of the plaintiff. Accordingly, without further evidence, I consider the articles relied upon by Dr Maxwell to be an irrelevant distraction and of no probative value to the determination of any of the issues to be decided in this case.
In my view, these matters demonstrate the flaw in Dr Maxwell's causation analysis. There is nothing within the admissible materials provided by Dr Maxwell that serves to undermine the definitive and unchallenged expert radiological opinion of Dr Korber, and the opinions of the medical experts cited at paragraph [262] above. On the evidence in this case, I see no sound evidentiary basis upon which I should reject those opinions in favour of the opinions of Dr Maxwell and Dr Best.
In my view, there is nothing within the opinion of Dr Best (other than the influence of Dr Maxwell's untenable views, which I do not accept) to indicate that the identified wedging of the bodies of T5 and T6 in the plaintiff's thoracic spine, are not related to the subject motor vehicle accident. On the contrary, the preponderance of the medical and lay evidence is to the contrary: plaintiff, Dr Bowers, Dr Preston and Dr Harvey-Sutton. Dr Best's report was not an expert medical opinion subject to the requirements of UCPR r 31.23 and Sch 7 cl 5(c) and I therefore discount its weight in favour of the opinions that are subject to those requirements.
I therefore conclude that on the preponderance of the medical evidence, as analysed above, the overwhelming conclusion to be drawn from that evidence is that the fractures to the plaintiff's thoracic spine identified on radiological imaging were more probably than not, caused by the subject accident.
In my view, the evidence overwhelmingly satisfies the requirements of factual causation: s 5D(1)(a) of the CL Act. I am satisfied that the plaintiff's fractures would not have occurred but for the admitted negligence of the defendant: Strong v Woolworths Ltd [2012] HCA 5, at [18].
In arriving at this conclusion, it is relevant to observe that the plaintiff must show that on a commonsense analysis, the negligence of the defendant either caused or materially contributed to the plaintiff's injury: March v (E & MH) Stramare Pty Limited [1991] HCA 12;(1991) 171 CLR 506, at [17] to [18]. In this regard, the defendant must take the plaintiff as he finds him, with underlying vulnerabilities included: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, at [8]. This was the very basis of the opinion of Dr Harvey-Sutton, and it compels the rejection of the defendant's arguments directed at seeking to avoid causation in this case.
I therefore consider that Dr Maxwell and Dr Best have misdirected themselves in their analysis of the causation issue, and their views should not be accepted. Instead, the evidence leads me to conclude that on the balance of probabilities, the plaintiff's thoracic spine fractures, and the pathology and pain from the plaintiff's neck and lumbar spines, were caused, or materially contributed to, by the subject motor vehicle accident. The evidence persuades me that the plaintiff would not have encountered those problems but for the accident in question, and these matters fall within the scope of the defendant's legal liability: s 5D of the CL Act.
Disposition
The defendant now consents to the matter being remitted for a further MAS assessment. Having reviewed the relevant evidence in detail as outlined in these reasons I am satisfied that in the circumstances it is plain that relevant additional information has emerged that indicates that the order sought, which is discretionary, is appropriately made.
Future re-listing of the proceedings
Pending the completion of the further MAS process that will follow the orders I will shortly make, I will proceed to advance the outline working draft of my judgment on all those other matters, whilst allowing for the likelihood that further submissions on damages will be made in due course, after the further MAS processes have been completed.
If, after the present referral to MAS, the parties still require the proceedings to be re-listed for further evidence or argument before proceeding to final judgment, on that occasion any further matters requiring consideration may then be addressed. The matter may then proceed to final judgment without significant delay. In my formal orders I also propose to incorporate a timetable for a mention date to ensure that the progress of any further procedural delays are monitored, and to enable further procedural orders to be made, if they are required.
Costs
The question of costs of the application for referral of the proceedings for a further medical assessment would ordinarily abide the result of the further MAS assessment, but as no arguments have been addressed to that question, I will reserve the question of costs.
Orders
I make the following orders:
(1) Pursuant to s 62(1)(b) of the Motor Accidents Compensation Act 1999, as a result of further additional and relevant information becoming available concerning the plaintiff's injury on 24 August 2005, I refer the matter to a further MAS assessment;
(2) Costs of the plaintiff's motion for referral of the plaintiff's claim for a further MAS assessment are reserved;
(3) Liberty to apply on 7 days notice if further orders are required;
(4) The proceedings are listed for mention before me at 10.00am on Friday 1 February 2013 for the purpose of ascertaining the likely timing of any further consequential evidence or submissions that may need to be considered before the matter may proceed to final judgment.
Decision last updated: 15 October 2012
0
11
4