Djukanovic v Motor Accident Commission No. DCCIV-96-5 Judgment No. D42

DJUKANOVIC V MOTOR ACCIDENT COMMISSION
[1998] SADC 42

JUDGE D. BRIGHT
CIVIL

On 11 August 1990, the plaintiff was the driver of a vehicle on Main North East Road, Paradise. It had come to a halt in traffic. Another car crashed into the back of his car. The driver of that car left the scene and was never identified. The defendant accepts that that driver was negligent. My task is, subject to certain legal arguments about compliance with section 127 of the Motor Vehicles Act, to assess the damages suffered by the plaintiff as a result of this incident (“the incident”).
This will be no easy matter. The incident is the sixth event giving rise to a claim for damages or compensation by the plaintiff. The first was in 1969, when he broke a rib. Since then there have been five claims for injuries to his back and/or neck. The last four claims involve cars crashing into the rear of his car whilst it was stationary. There is no suggestion that any of these accident were not genuine or that, at least in the case of the motor vehicle accidents, they were his fault.
The plaintiff was born on 27 June 1935 in the Serbian part of what was then Yugoslavia. His parents had a farm. His father lived to the age of 86 and his mother to 84. He had two brothers (one of whom died in an accident) and two sisters. He had a normal childhood. He is a man of high intelligence. This was recognised early. A family friend, a cardiac surgeon, took him to Belgrade where he completed his secondary education. He lived with this friend for about five years. He tells me that he did well at school. He wished to become a jet plane pilot, but failed the last of an extensive series of medical tests. His friend, he says, wanted him to become a surgeon, but he wanted to be a motor mechanic. He went to a trade school, graduating in a three year course in two years. He worked as a mechanic for about a year before being conscripted into the army. He found himself stationed on the Italian border and, after six months, defected. He lived in refugee camps for about 18 months. He came to Australia, arriving on 14 January 1955.
He worked in various jobs as he established himself and learnt English. On 17 July 1959, he (then 24) married his wife, a Polish immigrant (then 16). They are still together and have a (now) adult son and daughter. Another child died soon after birth. There is no reason to doubt that the plaintiff was a good mechanic. He got work in this field within a few years and, once in it, changed jobs only to improve himself. I accept that he was well regarded and worked hard.
In 1969 he suffered his first accident, while working at Arkaba Motors. He slipped and fell into an inspection pit, striking a safety jack at some stage in the fall. His first recollection is of waking up in the Royal Adelaide Hospital. He had suffered a fractured rib and, presumably, concussion. He believes he also suffered a punctured lung, though this is not referred to in the contemporary reports.
Events did not follow what might have been expected to be the normal course. It seems that, at first, it was thought that the plaintiff had merely bruised himself. A later X-ray demonstrated an undisplaced fracture of either the eighth or ninth rib (for which reason, I doubt that a lung was punctured). There is said to have been a further mix up, which led to the wrong side of his chest being strapped, an error which persisted, on some versions for three months, and on others for six months. Assuming that this error was made, there is no evidence that it affected the ultimate outcome. The fracture healed as would be expected. Perhaps it took longer and was more painful than it would have been if it had been correctly diagnosed and treated. Fractured ribs are notoriously painful.
The plaintiff’s recuperation was very slow. He was off work for about two years. He first entered the medico legal maze. The late Dr. I. Hamilton examined him and concluded that the problem was more than a simply organic one. He booked the plaintiff into the Ru Rua Hospital for a week or so to rest and relax him. He arranged a meeting with the RAH pain clinic, where the plaintiff was considered by doctors Burnell, Rischbieth, Schaeffer and Mai. Those doctors concluded that the plaintiff’s problems were genuine, amounting to a 40% loss of work capacity, but were at least largely attributable to non organic causes. This suggestion was flatly rejected by the plaintiff, who was then, and still is, not prepared to accept that any of his physical pain is not entirely the result of physical problems.
Worse followed when the late Dr. Radeski, a psychiatrist, diagnosed “a paranoid reaction”. The plaintiff was, and is, very angry about this, regarding it as a finding questioning his sanity. He says it was later expanded into a diagnosis of paranoid schizophrenia, though I have not seen any medical report in which that is stated. For what it is worth, I accept the reports of others, including doctors E. Scanlon, Goldney, Czechowicz and Cotton, psychiatrists, to the effect that the plaintiff does not suffer from any psychiatric illness or pathology. In particular, I have no evidence that he was ever a paranoid schizophrenic - the evidence suggests he was not. The plaintiff believes that all his subsequent medical and legal dealings have been blighted by the alleged diagnosis of paranoid schizophrenia, resulting in his claims being incorrectly dismissed, discounted, or otherwise dealt with.
It is now time to discuss some aspects of the plaintiff and the unusual way in which the trial before me proceeded. I have already noted that he is a man of high intelligence. He seems to have very fixed ideas of right and wrong - he will not deal in shades of grey. He is a self confessed workaholic, who loved his work as a mechanic. He demands high level of commitment from those he retains to work for him. He has become, perhaps always was, obsessive in pursuing what he sees as his rights. Only when completely inescapable are compromise or concession permitted. These are not necessarily bad qualities; but they are unlikely to allow a person an easy life. He is now very suspicious about other people, how they treat him, what they say about him behind his back, how they poison his chances for a fair deal from, e.g., new doctors or lawyers. His cast of mind is to look for a conspiracy behind every reverse.
His upbringing was in a country where, to speak in generalities, quick, violent, secret injustice has, for many generations, been more common than in Australia. Where a claim to fear that “doctors” or “lawyers”, or other “establishments” may spirit him away to an unmarked grave may sound bizarre in Australia, it may well, at various times, have been entirely possible in the Balkans. From what I read in the daily papers, I might well hold similar fears if I lived in some parts of the former Yugoslavia.
Then, it must be said, he has not been medically or legally lucky in Australia. Despite a great deal of medical treatment, he is in pain and quite unfit for work. Though he has always been in the right, he has not recovered large compensation or damages. A number of solicitors who have represented him have been struck off. He says he was robbed by them in various ways - and I have no reason to disbelieve him. It does not surprise me that he completely distrusts the medical and legal professions in this country. Any pre existing tendency to a paranoid reaction, or an adjustment disorder, has had plenty to feed on.
His wife and daughter have suffered injury in one or other of his motor vehicle accidents. Having, as he sees it, been treated badly himself, he substantially intervened in their cases, as he saw it, to protect them. Whether or not that was ultimately helpful can be debated. Of relevance, I suspect that there has been an intense focus on medico legal matters in the plaintiff’s home for many years.
While he sees himself as a fair, easy person to work for, I doubt whether he is easy. The well documented failures of certain solicitors to represent him properly have, I suspect, made him very anxious and demanding in what he expects and requires of them. For a period of time he studied law at the Adelaide University - I think informally, rather than for examination. In any event, he is interested in law and has a superficially detailed knowledge of various aspects of law. He has commenced many actions.
He has been represented by a number of lawyers. For various reasons he has terminated the instructions of those who have recently represented him. He has approached many others, but they will not, he says, take on his cases. In particular, he had no representation at his trial before me.
By the date of trial quite a large volume of medical and like reports and other documents existed. To give a complete picture, evidence from many doctors was needed. Three weeks were set aside for trial. The plaintiff had just returned from a series of examinations which he arranged in Los Angeles. He was ill, tired and excitable. No proper arrangements for the attendance of witnesses seemed to have been made.
From the points of view of the court and of both parties, it seemed to me that it would be a disaster to put off the trial, whatever the terms might have been. The matter needed to be brought to a head and dealt with. The question was how fairly to conduct a potentially long and complex trial in all the circumstances. I am indebted initially to Mr. Doherty, counsel for the defendant, and, later, to the plaintiff, for their co-operation in putting before me a great deal of information. Some of it was probably inadmissible. A great deal was hearsay. Mr. Doherty was involved in a number of the plaintiff’s earlier claims and had an appreciation of the background.
Initially the plaintiff wished me to read only reports of his treatment subsequent to the incident, together with an extract from the evidence of Mr. McCulloch, a neuro surgeon, to the effect that, in 1989, he had sustained no injury to his lower spine. That evidence was, says the plaintiff, responsible for the judge at that trial and for his own lawyer pressuring him to settle his claim in respect of two motor vehicle accidents prior to the incident on terms that it was for neck injury, but not low back injury. Accordingly, said the plaintiff, whatever may now be wrong with his low back is attributable wholly to the incident. If I were to deduct anything for pre existing low spinal problems, that would be “letting the defendant have it both ways” - they cannot have the benefit in the last case of settling on the basis of there being no lower back injury and now have the benefit of claiming in this case that there was.
I must deal with this contention. The last trial dealt with rear end collisions in 1984 and 1988. I have read the transcripts of the evidence given by the plaintiff and by Mr. McCulloch. Certainly there was dispute as to whether there had been low back injury. During the trial, which was of two actions heard together, a consent judgment was entered. The transcript does not record any remarks by the trial judge about the desirability of settling. The consent judgment was entered in respect of the 1984 motor vehicle accident and the action in respect of the 1988 motor vehicle accident was dismissed. No finding was ever made by the trial judge. Whatever assessments of the state of the evidence may have been made by the parties in the course of settlement negotiations are entirely irrelevant to my trial. There was no factual finding in respect of which it could be said there was a “res judicata”, even ignoring the overlapping, but separate interests of the SGIC, the MAC and of the various insured drivers.
The plaintiff does not accept my views on this topic. However, after discussion, he accepted that, whether or not I agreed with him, I needed to understand how he was before the incident in order to see how it affected him. Discussion about this is on transcript and occupied the first morning. The plaintiff is, as I have said, ill. He is in a wheelchair, on medication, intense and easily excited. A morning in court has been as much as he could reasonably take before becoming too tired.
Having reached agreement, the second and third days were spent by the plaintiff and Mr. Doherty collating the material to be put before me. In an appendix to this judgment I list that material, together with other material tendered during the trial. Suffice for present purposes, it comprised almost one hundred medical, pathological and radiological reports, dating back to 1969, together with many letters from and between doctors, extracts from medical and para medical articles, assorted accounts and a lengthy written statement by the plaintiff.
It was agreed that all this information would come before me, without insistence on the many technical objections that could have been raised by the defence. Insofar as it consisted of medical reports, those reports set out what would have been the evidence in chief of the various doctors. Insofar as it became necessary to decide between doctors, I was to accept that all were qualified to give evidence, but would have to use my own judgment, including my prior experience of some of those doctors. No doctors were called to give oral evidence.
As reports from Los Angeles doctors were not received by the defence until very late, I allowed a report to be obtained in relation to them from Mr. Jose, orthopaedic surgeon, who had earlier reported to the defence. I then directed that Mr. Jose’s report be faxed to the principal doctor in Los Angeles with a request that that doctor indicate whether Dr. Jose’s last report caused him to vary his own report. It did not.
It had been intended that the plaintiff confirm his written statement on oath and then that he be briefly and generally cross examined in only sufficient detail to avoid any allegation that defence submissions had never been fairly put to him. However, once in the box, the plaintiff wished to tell me his story, in addition to confirming his written version. He gave it in great detail, over three mornings. He was plainly exhausted by lunch time each day - so we adjourned then. Inevitably, his evidence covered not only what could have been regarded as strictly relevant matters, but also the whole saga of his life since 1969, including his complaints about his lawyers and doctors. His object was to demonstrate what he called the snowballing effect of his various problems. He gave his evidence without interruption from counsel for the defendant, despite it including a good deal of hearsay material. Mr. Doherty and I agreed that it was quicker and easier for the plaintiff to be allowed to tell his story in his own way. The defence position is that, while I am not bound to apply the strict rules of evidence in assessing the material before me, I am to act fairly and I am not to infer that, because no objection was taken to a point, it was conceded by the defence.
By these means a trial which would, if conducted on orthodox lines, have taken a very long time was able to be heard in a relatively short time. An inevitably lengthy adjournment was avoided. I hope that the procedure at trial and my consideration of the material before me will avoid major injustice to either party.
At the end of the trial, I allowed Mr. Doherty to prepare written submissions which he was to serve on the plaintiff. Unfortunately Mr. Doherty had problems which delayed him. Then it was Christmas, and I took leave. It was not until 3rd February 1999 that we re-convened. Mr. Doherty’s lengthy submissions were handed in on that day. I allowed Mr. Djukanovic time to prepare his reply. I received that on 2nd March 1999. His submissions were also lengthy. In an appendix I set out the material I received, and whether I read it.
I now return to the narrative. I was dealing with the first incident, a broken rib. Even allowing for possible misdiagnosis and treatment, it took the plaintiff a long time to be well enough to return to work - about two years. I suspect that, as all the contemporary reports suggest, there was a psychological reaction, partly to the injury and partly to the way it was handled. I think it elevated the plaintiff’s suspicions about “the system”. To say so much is not to accuse him of the insanity he (rightly) so vehemently denies.
It appears that the Form 2 application in the Industrial Court referred not only to physical injury, but to a compensation neurosis. The plaintiff tells me that he always disagreed with the latter claim and always objected to his lawyers including it. He says they insisted on it. He has not been prepared to use that firm of lawyers again. He returned to work in 1972. That was after his claim had been settled - but I have no evidence that the return to work was deliberately delayed to magnify the settlement.
He tells me that, during his period away from work, Dr. Radeski had him hospitalised at College Park Private Hospital where, without his consent, electro convulsive therapy was administered. I have not been given any documentary information about that. Assuming that it happened, it can only have heightened any fears he had about the medical system. I have no information that it otherwise harmed him.
On his return to work, he again worked hard and well. By 1975 he was working long hours as a mechanic for Australian Motors. On 7 November 1975, he was in a pit, attempting to loosen the nut holding a differential pinion in place on a Chrysler car. It had been over tightened and he was pulling hard on a very large spanner. He (and he admits his own error) had not applied the brakes to the car, or put it in gear. He had immobilised it by placing wooden chocks around a rear wheel. He pulled so hard that the car rolled back over a chock and, as it continued to the rear, the spanner he was using was driven into his abdomen and he was pushed against the back of the pit.
He developed low back pain. He could not work. In 1976 Mr. Marshall orthopaedic surgeon, operated on him. I do not have any report from Mr. Marshall and there is a degree of confusion about what he did. As I understand a number of later radiological and medical reports, he performed a laminectomy at L4/5, removing a certain amount of bone to enable him to remove part of the L4/5 disc. A later radiological report refers to “laminectomy defects” at L4/5 and L5/S1. I take it that the word “defect” does not imply anything untoward. I take it to mean that the signs of where a normal laminectomy was performed remain visible. I am not aware of anyone else performing a laminectomy at L5/S1. Mr. Beetham a later orthopaedic surgeon, noted that he had information from Mr. Marshall about a bulging disc at L5/S1. There is said to have been degeneration at both levels. Perhaps Mr. Marshall did do some work at L5/S1 - perhaps there is some misunderstanding.
In any event, Mr. Marshall’s operation did not relieve the plaintiff’s pain, although it appears to have been a success as far as Mr. Marshall was concerned. I have no information to establish that it was incorrectly or negligently performed. The plaintiff, as a result of discussion with others, has come to the view the Mr. Marshall ought to have performed a fusion at one or both levels. The symptomatic failure of the operation predictably led the plaintiff into conflict with Mr. Marshall and other doctors involved.
Eventually he consulted a Mr. Sorby Adams, surgeon, who is alleged to have advised the plaintiff that he could no longer expect fair treatment from orthopaedic surgeons in Adelaide. On, it is said, Mr. Sorby Adams’ advice, the plaintiff went to Ballarat and consulted a Mr. J Jens, orthopaedic surgeon, who considered his case in conjunction with his colleague, Mr. Beetham. They decided to operate.

Again, I have slight uncertainty about what they (principally Mr. Beetham) did. I think the facet joints on the left at L3/4 and L4/5 were fused. I do not think that there was removal of either disc with fusion at the main interbody joint. Later radiological reports refer to at least partial fusion at these joints, but I interpret that to be a result of continuing degeneration and the immobility caused by the fusion of the facet joints. I think that any fusion at either main joint occurred without specific surgery designed to cause it.
A month after the operation, the plaintiff was thought to be much better, but was complaining about sensitivity to cold in his legs, with poor circulation. He was put on the invalid pension, and has been on it ever since. In the present claim he seeks no economic loss, beyond a small token allowance.
His claim was settled. He elected to spend most of his award on a trip to Yugoslavia, where he underwent about three months of treatment with mud and mineral water at a spa. He did a lot of walking and was on a strict diet to eliminate the remains of the many medications he had taken. After this, he returned to Australia, feeling well, carrying his suitcase and “walking like a soldier”.
On the invalid pension he was permitted to earn a certain amount of money. He sought, but could not find employment. All potential employers shied off a man with a bad back, however fair, or unfair, that may have been. In the end, he began to do light motor mechanical work at his home. Mr. Beetham regarded him as fit for that, and so it proved. It seems to have been more a hobby than a job. He charged very little. What he earned he spent buying tools. He never cleared enough to cause the pension to be reduced or to require him to file a tax return.
It seems that, by about 1980, he was pretty well free of pain, walking well and capable of light mechanical work. He drove a car. He and his family went on outings. Apart from lack of employment, life was fairly normal. It is also indisputable that, as a result of natural degeneration, his injury, and his treatment, his low back was vulnerable.
I note a curious incident shortly after Mr. Marshall’s operation. The plaintiff says that a nurse rolled him from one side to the other, carelessly twisting his spine, causing extreme pain and paralysis in his legs. Mr. Marshall was called, was abrupt in putting the nurse on the spot, but believed her claim that she had not done so. Consequently, it is said, he was unsympathetic to the plaintiff’s version and packed him off home far too soon, in order to get rid of him. Mr. Marshall is then alleged to have blackened the plaintiff’s name with all other orthopaedic surgeons consulted in Adelaide, passing on the alleged diagnosis of paranoid schizophrenia. This is said to have resulted in doctors being unprepared to see him or to give due credit to his complaints. There is no evidence from any other source as to whether Mr. Marshall, in fact, did that. I cannot credit a deliberate campaign by Mr. Marshall. It would not surprise me if indiscreet conversation led to the plaintiff acquiring a reputation as a difficult patient. I make no finding, but the episode, as reported by the plaintiff, exemplifies his belief that he has been badly treated, both medically and otherwise. It is relevant to the reasonableness of seeking treatment outside South Australia. By 1980, he had seen a number of sympathetic and also a number of sceptical doctors, whose divergent views were at least confusing and, at worst, indicated to the plaintiff malpractice on the part of those who did not accept him.
On 18 November 1980, the plaintiff was in his stationary car when another ran into its rear. This led to a case in the District Court. The plaintiff returned to Mr. Beetham in Ballarat, who concluded that his fusion/s was/were undamaged. The plaintiff had some low back pain, but his main complaint was of pain in his neck. Mr. Beetham manipulated his neck under general anaesthetic. He was seen by the late Mr. Gray (orthopaedic surgeon) and by Mr. Schaeffer, (neuro surgeon) who recorded his main complaints as relating to his neck.
His daughter was injured in the same accident. The plaintiff was concerned that she was not being dealt with fairly. He was sent, in relation to his own case, for examination by Mr. Dinning, a neuro surgeon. The plaintiff believed that Mr. Dinning had not dealt fairly with the plaintiff’s daughter. The situation was so charged that the plaintiff and Mr. Dinning argued. Mr. Dinning refused to examine him. Again, this incident is of little significance except to illustrate the plaintiff’s ever growing sense of injustice and his conviction that the medical establishment were biased against him and his family.
The plaintiff did not get back to his back yard mechanical work until mid 1983. It can cause no surprise that he took longer than some expected to get over the 1980 accident. When damages were assessed, he was not allowed the cost of his manipulation by Mr. Beetham. He attributes this to negligent work by his barrister and solicitor. He commenced, but did not long prosecute, an action against his solicitor. It is not necessary for me to express an opinion on the rights and the wrongs of that dispute. It is enough to note that, after payment of that account, together with his other legal and medical fees, the plaintiff was out of pocket. Once more it seemed to him that the system had failed him.
He eventually returned to his light work, to driving, and to a relatively normal life.
With the inevitability of a Greek tragedy, he was the innocent victim of two further rear end collisions. The first was on 1 September 1984, in Portrush Road. The second was on 3 February 1988 in Melbourne Street. The first was caused by an elderly man in a car with defective brakes. The second driver appeared to be drunk or under medication. According to the plaintiff, neither should have been on the road. He was very angry. There were two claims, ultimately settled during a trial in the District Court in 1989.
During this five year period, he complained of a large number of symptoms, saw a lot of doctors and received a great deal of supportive therapy, such as physiotherapy, chiropractic, and acupuncture. He had frankly non organic problems, such as collapsing into unconsciousness (he says, 32 times). He developed chest pains and consulted a cardiologist, who found nothing wrong. He was managed conservatively by Mr. Hone, orthopaedic surgeon, until he fell out after being prescribed Tegretol. The plaintiff believes this was not an appropriate medication (I suspect because it may not have been directed wholly to organic problems).
As usual, the plaintiff seems to have been entirely lacking insight into the complex causes of his pain. He believed them to be entirely organic. He rejected (angrily) any suggestion of psychological causes. To suggest such a thing was, as he saw it, to suggest that he was, in some way, insane. He appears not to accept that psychological mechanisms play a part in all of our lives, in our pain and in how we react to injury and adversity. I repeat, for his benefit, that these references by me to psychology do not imply any belief on my part that he is insane, or suffering from any mental illness. We all have different personalities and react to outside forces in different ways. He would be as justified in considering and questioning my reactions to a situation as I am in considering his. I hope he would no more conclude that I am insane, or mentally ill or unstable than I do him. That is not to say that we would find each other easy to get on with. People are different, and that is all there is to it.
Without going into detail, the prevailing opinion is that, following these two accidents, he suffered no serious damage to his low back. There may have been some soft tissue damage. No one suggests damage to Mr. Beetham’s fusion(s). Mainly he complained of neck pain. As I have noted, Mr. McCulloch was particularly firm in the view that no significant harm was done to his low back. It seems that other doctors generally agreed with that. Certainly the plaintiff complained of a good deal of low back pain. His understanding of the ultimate settlement is that it was on the basis that he had no low back injury. It may well have been on the basis that he had not suffered significant low back injury in 1984 or 1988. If so, that does not mean that he had no problems in his low back. He obviously had a weakness and vulnerability from natural degeneration, from the injury of 1975 and from the subsequent surgery. That is why he was on the invalid pension. That is why he was advised only to do light, back yard work.
It must be noted that a number of the complaints he makes in the present case are similar to complaints he made in earlier cases. It may be that the postulated minor soft tissue damage in 1984 and 1988 precipitated those symptoms for a while. It may be that psychological mechanisms prolonged and/or exacerbated them. By 1989 he might reasonably have thought he had been through the mill. He complained of heat sensitivity in his legs (particularly to cold). He had not been able to have normal marital relations with his wife. He had had trouble urinating. He had an unusual walk - as it were, limping on both legs. He had had low back pain ever since the 1984 accident. In April 1989, Mr. Fry, orthopaedic surgeon, opined that he would probably “come to spinal fusion”. I turn to the evidence of the plaintiff to the court in 1989, given some ten months before the subject incident. He referred to the various problems I have mentioned. I concentrate on the plaintiff’s problems following the 1988 accident.
He felt stiff all over and spent a week on the floor. Then he was prescribed analgesics. He had six months of physiotherapy. His legs, particularly the left, were painful. He consulted Mr. Girgis, orthopaedic surgeon, who did two epidural blocks, which gave good, but short term relief. Mr. Girgis spoke of the possible need for a fusion using (presumably, Knodt) rods. The plaintiff did not want further surgery. Later he interpreted discussions with other surgeons as suggesting that Mr. Girgis was anxious to operate, not for the plaintiff’s medical benefit, but for Mr. Girgis’ financial benefit. The plaintiff completely lost faith in Mr. Girgis and invites me to disregard his view that, prior to the incident he had a problem bad enough to make lumbar fusion likely.
In a borderline case, there is room for different views about the desirability of carrying out a medical procedure. That Mr. Girgis favoured carrying it out when other doctors did not neither proves that Mr. Girgis advised only out of self interest, nor that there were no indications that a fusion might be needed. That is also consistent with the view of Mr. Fry. It was entirely up to the plaintiff to decide whether he wanted the operation. His decision not to have it was perfectly responsible.
The plaintiff lived in the family house, but locked himself in a separate room from his wife and had no marital relations. He became socially reclusive and friends ceased to visit. He declined invitations to go out to dances - even invitations just to attend without dancing. He could not sit down long. He was angry, furious, that his symptoms had been set off again. The 1988 accident “put me back to square one from the psychological point of view. I lost will and hope.” He still drove a car, with a lumbar support in the seat. He was fearful of a further accident.
In the few months before the 1988 accident he had constant pain in his lower back with a burning pain in his left leg from behind, going down to his heel. He had pain in the side of his left leg. Then he had “half of my left tummy to the knee, thousands of needles like numbness affecting half my tummy and coming down to this point. On the right leg I got burning pain just on the back that’s all, right down to the heels. Then I got neck pain and right shoulder blade pain”. He was asked about the effect of the 1988 accident. He said: “In addition to that I got now cold legs, very freezing legs. I have to wear constant warm boots to keep me a little bit more comfortable and I have problem turning in the bed from one side to another ......my arm I can only lift that much right. I cannot remove my wallet from my pocket in the back. I have restriction with the movement of the right arm. My left arm has been fixed. Then I have problem with pain in the left side of the neck and on the right side of the neck when I turn my head left to right”.
He had trouble driving, rough roads aggravated pain, as did use of clutch and brake. Of the 1988 accident he said: “That accident practically finished me up. My morale has been taken away. I lost morale. I lost the will to live.....I lost interest in everything, the whole lot.”
At the time of giving evidence in 1989, he said that his only physical activities were walking around his home, going to the shop, buying newspapers or milk “that’s all”. He could not carry a suitcase. His mood (“sometimes my head will be clear....”) was very up and down. He could only walk on a warm day - on a cold day he had to lie on the floor. He was very depressed and was unable to control his depression. He could no longer “switch it off”. He had abandoned all hobbies, such as going to the soccer or attending political meetings. He was dependent on family members, particularly his son (his wife and daughter also had injuries) for household chores. He was asked: “....your existence now is in essence a world of pain?” He answered: “That’s all. That’s all.”
He said he had used too many pain killers, his tummy had been ruined. It had affected his digestive system. He could not drink alcohol or soft drink. He could not eat acidic food, such as salad with vinegar. This began in 1984. He could not eat soup. He could only eat solid stuff very solid stuff, “anything else just make my tummy burning and inflamed, digestive problems straight away”. He could not sleep for pain and was taking sleeping pills. His wife sometimes had to help him dress and undress.
He was asked how he saw his future - which he regarded as bleak. Would he be prepared to undertake a rehabilitation programme? “The rehabilitation programme would be a waste of time without the surgery, it would be a total waste of time, total waste of time”. He would be prepared after surgery to do whatever a doctor advised. He hoped for good results from surgery - “That is all what I got, hope on that operation, I don’t have nothing more”.
He was getting bad spasms in his lower back and his leg was getting colder and colder. He moved from side to side as he stood to relieve pressure on each leg in turn .....”If I am stationary, I would be screaming from the pain”.
He no longer had any relationship with any member of his family. He had a poor memory which had previously been good. He had lost his appetite and was losing weight.
I remind myself that this evidence was given a little less than ten months before the subject incident. Obviously it was given in a manner similar to his evidence to me and similar to his history given to many doctors. It is florid and histrionic. It reflects deeply ingrained patterns of thought and speech. It is not simply to be taken at face value. I have no reason to doubt that he suffered and now suffers significant pain and disability. Calibrating another person’s pain experience is impossible. With everything described on “high C”, it is very difficult to judge what changes have occurred, or when. It is not surprising that there is great variation between the doctors in their interpretations of his complaints.
On 29 March 1989, Mr. Fry wrote:-
“Mr. Djukanovic appears to have the same problems as I described before, worse if anything, with subjective symptoms more into the left leg. The MRI shows degenerative change at the lower two discs, and in fact reinforces the impression given clinically that his problems are due to degenerative change at the two lower disc spaces with facet joints at least being a large proportion of the pain causing mechanism. While I think that epidural injection is well worth trying as suggested by Mr. Beetham, I suspect that long term results are unlikely and think he will very likely ultimately come to spinal fusion. While I think that this would help things at least, I doubt that it would eliminate his pains, merely make his situation more comfortable for him. I understand that he is shortly to see Mr. Girgis for an epidural injection to be commenced, and conditions therefore can be considered in a state of flux. It is certainly not as yet stable, pending treatment. He is unfit for work as he currently is.”

The plaintiff asks me to disregard this view as being that of a general surgeon only beginning to do orthopaedic work and as being unduly influenced by the self serving views of Mr. Girgis. I am not persuaded by this argument. I find that the passage I have just quoted fairly describes the situation.

I have noted that the injections were given, with short term benefit, which I would understand to be indicative of an underlying organic problem in a spinal level or levels below the block. I accept that the improvement claimed in his shoulder is not so readily explained.
I do not over look the strongly expressed views of Mr. McCulloch, neuro surgeon, at trial on 17 October 1989. He said:-
The plaintiff most definitely does not require further surgical treatment, and such treatment would be dangerous.....it would be dangerous both from the physical point of view and from the mental point of view. It would produce no benefit whatsoever from the physical point of view. His problem is not a physical problem, and it may be undesirable in a person who is as unstable mentally as this man is. Secondly, it would be dangerous in the sense that he has had two previous operations on his back, such operations produce scarring and make it difficult to distinguish the tissues and the patient would be at considerable risk of suffering a degree of paralysis in surgery. My advice to him would be against any surgery at all. Quite frankly, any surgeon who operated on him would have to be crazy.”
No doubt, if asked, Mr. McCulloch would now say that subsequent events have proved him right. I do not think the situation is so simple, so black and white. I do not know exactly what he meant by “mentally unstable.” I have no evidence that the plaintiff suffers any mental illness - but I accept, and have noted, that his personality is excitable and suspicious. Mr. R. Fraser, orthopaedic surgeon, later operated. Putting to one side questions about whether the plaintiff’s back had been altered by then, I do not accept that Mr. Fraser’s action in performing an operation on the plaintiff, when the plaintiff desperately wanted it and the indications were that it at least offered some hope of improvement, mark Mr. Fraser out as “crazy”. Mr. Fraser consulted with other surgeons. What he did was anticipated by Messrs. Fry and Girgis. I accept that Mr. McCulloch correctly identified some risks and that he assessed those risks as outweighing the likely benefit of surgery. That was his judgment. Others were equally entitled to a different assessment.
My reason for discussing Mr. McCulloch’s evidence is that I do not accept it as proving that, prior to 1990, the plaintiff had no disability in his lower spine. Nor do I accept the corollary that any problems found in his spine after 1990 must be wholly attributed to the incident.

It may be apposite to quote from a report of Dr. Goldney, psychiatrist, of 21 December 1987:
“It is always difficult to distinguish between a conscious feeling of bitterness, anger and resentment and an unconscious reaction. I consider that it is likely that there is a combination of the two, but there is little doubt in my mind that he has an unconscious component which could best be considered a mixed neurotic disorder with conversion reaction whereby he has converted feelings of anger and resentment.....into an exacerbation of his pain experiences. In postulating this psychological mechanism, I am in no way suggesting that there is no organic pathology, but simply pointing out that it is more probable that there is this psychological component to his overall presentation. It is conceded that there could be a conscious component to his expression of his symptomatology.”
Though written in 1987, I think that view holds good today.
Dr. Goldney noted that the plaintiff had come into conflict and was angry with various medical and legal advisers. Unfortunately the plaintiff’s problems do not end with the settlement of his 1984 and 1988 claims on about 19 October 1989.
He tells me that his lawyers then stole all his settlement money, that of his wife and also that of many others. He says they were struck off. I have only the plaintiff’s evidence for the reason for their being struck off, but it is the fact that they were struck off. It is hard to imagine clearer proof to the plaintiff of his misgivings about the legal profession. That he would be suspicious and hard to deal with thereafter is obvious.
I turn to his evidence to me about how he was just before the incident. In his written statement he deals with his state after the case in 1989. He still had problems with back and left leg. He sought referral to a specialist and was sent to Mr. Cornish and, by him, to Mr. Fraser, whom he saw in December 1989. X-rays were taken and a clinic was held with a number of doctors. The outcome was a recommendation against surgery. He was told to try hydrotherapy and to swim a lot. He did that for about eight months. He never got back to light car mechanics. He worked on his exercises. He went to picnics. He had good and bad days. On the day of the accident he was driving. He and his wife were going to a dinner dance at Kilkenny. In his oral evidence he confirmed this. He said he still had trouble with a frozen shoulder, but that was not in Mr. Fraser’s field. It had moved from his left to his right shoulder after chiropractic treatment. He went to the late Dr. Goh and his shoulder was successfully treated with acupuncture. He stopped using pain killers. His digestion improved. He had not had trouble urinating since Mr. Girgis’ epidurals.
In cross examination he said his stomach fully recovered. It was after settlement that he first formed the view that Mr. Girgis’ views were coloured by self interest and so to be dismissed. He had accepted them at the time of the 1989 trial - hence his evidence at trial and the views he expressed to doctors at the time. Not only was he misled by Mr. Girgis, so were a number of other doctors, including Messrs Fry and Beetham. Asked to agree that the incident caused no new problems, he said:- “What are you talking about? I recover from the two accidents which you dismissed for me [referring to Mr. Doherty’s involvement in the earlier case] and I was going on the dance and picnic and everywhere. I was driving car and doing all normal things in my life until 11 August 1990 when everything snapped, finally snapped. Then have to be use screw as Mr. Fraser said that was only alternative. So second, I never have sympathetic nerve dystrophy before in my life in my both legs. Third, I never have candida and this another infection which I have to be treated. The fourth, I never had the pneumonia in both of my lungs. The fifth, I never have pulmonary embolism in my life before, so there was six new problems as a result of this surgery.” Shortly after this answer the plaintiff became very upset. Nevertheless, this statement, going beyond the immediate aftermath of the incident, is the clearest description of his perception of subsequent events.
I turn to evidence from medical and radiological reports. The plaintiff first consulted his general practitioner seventeen days after the incident. In the intervening period he was, he told me, in great pain. He lay on the floor. He tried to avoid becoming once more enmeshed in the medico legal mill. His wife, having seen him, and having also been through it, begged him not to. She could not cope with more doctors and lawyers. Eventually, unfortunately, he felt that he had no choice.
The plaintiff believes that his facet joint fusion(s), performed by Mr. Beetham in 1977 was/were “snapped” in the incident. He believes that he could thereafter feel movement. There is some ambiguity in the radiological reports over the years. Sometimes the facet joint(s) are said to be soundly fused. At other times there is some doubt. Was there, at one level, only fibrous, rather than bony fusion?
On 26 November 1990 the plaintiff again saw Mr. Fraser.   I set out the whole of the report he wrote in November 1993.
“Mr. Djukanovic was referred to me by Mr. P. Fry and I examined him on 26/11/90.   He told me he was 55 years of age and employed previously as a motor mechanic.   He complained of low back pain, with pain extending down both legs.
He told me these symptoms developed following a rear end motor vehicle accident in August of 1990.   He was the driver of a stationary car, which was hit from behind by another vehicle, causing damage to his car of approximately $1600.   He experienced immediate pain in his back and had difficulty getting out of the car.
I had previously treated the patient at the Royal Adelaide Hospital for symptoms related to a possible non-union at the L5S1 level.
His previous history included spinal fusion procedures, carried out by Mr. R. Beetham and 1977.
The patient told me that since the motor vehicle accident in August 1990, the symptoms had worsened by a factor of 3.   He spent some 3 weeks after the accident lying on the floor and unable to move.   He said the pain in his back was the same as before, but worse.
He said his pain was increased by sitting, standing, lifting, twisting, bending, coughing, sneezing and sleeping, and reduced by lying down.   He had to rest for over half of each day because of his symptoms.
His previous treatment had included physical therapy, the wearing of a corset, traction in hospital, epidural steroids and acupuncture.
Examination revealed tenderness of his neck, tenderness of his area of his back over the scar and restricted back movements, with each movement being restricted to one third the normal range.
Straight leg raising was to 40° on both sides, limited by back pain, with no evidence of nerve root tension.   There was regional sensory loss in the left lower limb.   Simulated axial loading and rotation, both reproduced his pain.   There was general over reaction to examination.
A diagnosis was made of a probable aggravation of an underlying non-union as a result of the motor vehicle accident described, but in addition there was clinical evidence to suggest a significant psychogenic involvement.
The patient was managed by conservative means at first but eventually underwent a revision of the lumbosacral fusion, carried out at the Royal Adelaide Hospital on 2./12/91.   At that procedure a non-union was found and the operation consisted of a posterolateral fusion with internal fixation.
Since that time the patient has made considerable progress.   He reported significant improvement in his leg as well as his back pain, and subsequent x-rays demonstrated the fusion to be sound.
On 16/2/93, the internal fixation device was removed and the fusion was found to be well consolidated.
Mr. Djukanovic was last reviewed on 11/10/93 when he reported that overall his back and leg symptoms were considerably improved although he still did experience back pain and some pain in the left leg.
Examination revealed him to be able to walk without the gross limp, which was displayed before surgery.
As a result of the motor vehicle accident described, I consider the patient sustained a soft tissue strain to his back, aggravating a pre-existing lumbosacral non-union
As a result of surgery his condition has improved to the point where he appears to be less disabled than when I first examined him, prior to the motor vehicle accident itself.
Irrespective of any future outcome, I consider the patient will not be fit for heavy physical work in the future.   I consider he is fit to carry out light to medium physical activities, as permitted by his symptoms.   He would best be suited for light physical work at bench level, without the need for bending, lifting, twisting, jolting or jarring.   A suitable work position is likely to help the patient’s overall health.
I would assess the patient’s permanent disability as being equivalent to an impairment of his lower back and lumbar spine of approximately 40%.   I consider the motor vehicle accident to be responsible for approximately one third of his current impairment.”
I note that Mr. Fraser refers to non-union, rather than a snapping of Mr. Beetham’s fusion - or is he referring to fibrous bonding at a main interbody joint?. Mr. Fraser told the plaintiff that he intended to operate through his abdomen in order to minimise interference to structures immediately posterior to the spine and that rods were to be used to stabilise his joint. When he awoke after surgery the plaintiff found that Mr. Fraser had changed his mind and had operated from the back and had used two plates, each fixed in place with two large screws. He was in agony. He could feel that he had a screw loose every time they turned him. It felt like he was being poked by a knife. He was shocked at the change of plans. He had a painful convalescence. He suffered pneumonia. He experienced severe pain at the site of what he believes was a loose screw.
I have no medical report confirming that a screw was loose. Mr. Jose, orthopaedic surgeon and adviser to the defence, examined a number of X-rays and like films and reports. He could see no sign in any of them of a loose screw - but noted that the metal of the screws and plates caused artefacts which meant that the films were not conclusive. Mr. Fraser did not comment on it. Some X-rays suggest that what had for some time appeared to be a completely sound fusion was being resorbed. Could that have made a screw come loose?
The plaintiff told me that Mr. Fraser, because of the plaintiff’s continued complaints, sent him for X-ray, looked at the X-ray and said: “Svonko, you’re right. Screw on the left side and plate are loose.” This was on 13 February 1993. This is hearsay, but may well be true, as he had the plaintiff admitted to St. Andrew’s Hospital three days later and operated to remove the plate and two screws on the left.
The plaintiff showed me the plate and screw. They are surprisingly (to me) large. He says that it was always a wrong decision to use that sort of plate and screw. In the USA, he says, any doctor who now used them would go to gaol. There is no documented opinion from any doctor, either to the effect that they should not have been used, or that they were incorrectly installed. Such evidence as there is is unanimously indicative of the screws being correctly placed - in the sense of not being too far in, or out of line, thereby compromising a nerve or other structure.
I note that Dr. Pitts, neuro surgeon in Los Angeles, in commenting on the plates makes no suggestion that they should not have been used. He even says: “I think it’s unfortunate that the plaintiff did not have replacement of the screws and additional fusion done at the second procedure”. That does not suggest a US view that the use of screws was wrong.
At or after this operation, the plaintiff suffered a pulmonary embolism. This is a dangerous condition, but he responded normally to treatment. It does not indicate any want of care during surgery or post operative care. It must certainly been a painful and terrifying experience. Dr. Czechowicz, psychiatrist, believes there may have been some post traumatic stress disorder precipitated by it.
X-rays show that the holes left in the plaintiff’s pedicles after removal of the two screws were not filled with bone or other material. The plaintiff believes they should have been filled and that the failure to fill them has weakened his bones. There is no medical evidence to support this view. Nevertheless, it is the fact that the plaintiff was most unsatisfied and believed that he had been badly treated, yet again.
At about this time the lawyer now representing him returned his file to him. Although the plaintiff had liked him, it is said that he then ceased to practice after some sort of Law Society investigation. The plaintiff’s next lawyer handled his case negligently, overcharged him and tried to get hold of the title to his house. He was struck off. His actions made the plaintiff almost murderously furious - to the extent that his psychologist feared he might actually murder the lawyer, who refused to hand over his file until forced to by a Supreme Court order. Insofar as the actions of the lawyers caused the plaintiff grief and suffering, they may be liable for that. The defendant in this case is not. It is not like surgical misadventure, unlooked for, but within expectations, for which a tortfeasor must pay. The actions of his latest lawyer were not within the bounds even of minor negligence. In legal language, there was a novus actus interveniens. In any event, those actions did not give rise to his mistrust of lawyers - they merely confirmed his existing mistrust.
Although X-rays indicated that there was firm fusion at L5/S1, the plaintiff continued to complain of much pain. He believed that removal of the plate on only one side had unbalanced his spine and subjected it to further stress and damage. He consulted Mr. Osti, orthopaedic surgeon, in 1994. His condition had, he says, deteriorated for about six months. Mr. Osti saw the incident as having been an aggravating feature, but not as a sole cause for present problems. He was reluctant to intervene surgically, particularly because of the fact of the pulmonary embolism in 1993, which made it not unlikely that he might suffer a further embolism if undergoing further surgery. He recommended conservative management.
However, Mr. Osti eventually agreed to remove the plate and screws on the right side, which he did on 8 August 1996. He also took bone from the plaintiff’s iliac crest and carried out a supplementary bone graft at L5/S1.
Mr. Osti was told by the plaintiff that he had developed a Candida infection. He probably had it before Mr. Fraser operated, as that operation was delayed for about six months while stomach problems were sorted out. The natural flora of the gut include the candida yeast. When in balance with other naturally occurring organisms, it causes no trouble. If antibiotics and other drugs suppress other competing organisms, the candida yeast can multiply out of control. It can be quite a serious problem. Like any other yeast, it feeds on sugar, hence foods rich in sugar, or in carbohydrates which convert to sugar, must be avoided. A patient feels ill and cannot eat. He loses weight. The yeast may generate some harmful toxins. All of this sounds consistent with complaints he made before 1990, though candida was not then diagnosed.
The plaintiff told me that he happened to hear a radio announcer in a late night talk back show discuss candida with a listener. He realised it must be his problem. Oddly, he told me he had bought a book on candida years before (which fuels my suspicion that he had it years before). He discussed the problem with Dr. Fitch, his gastroenterologist. He told me Dr. Fitch did not have the sophisticated equipment needed to test for the condition, but that he was prepared to put the plaintiff onto an antifungal drug which would control it, if that were in fact the problem. The drug worked. The problem is under control now, but he must keep up the medicine, at least for a long time. He must still stay on a pretty strict diet.
After Mr. Osti’s surgery the plaintiff reported that he could now lie on his back. He no longer had problems urinating. Apart from that, he got no benefit. He was still in pain.
Dr. Glynn, a vascular surgeon, had diagnosed a causalgia or dystrophy in his legs. He suggested a sympathectomy, which I take to be a minor operation to cut certain nerves thought to transmit the sensation of pain, or to be involved in abnormal vascularity and sweating. There was some talk of this being done at the time of Mr. Osti’s surgery, to avoid a multiplicity of general anaesthetics. In the end it was not done. It remains a possible treatment, but is contraindicated by the risk of pulmonary embolism. It has not been performed.
On 9 July 1998, the plaintiff reported the following problems to Mr. Osti:-
“1. Coldness affecting his body below his waist.
2.      Losing control of both legs.
1.      Muscle wasting of both lower limbs.
2.      Intermittent spasm preventing him from regularly moving his bowels and requiring glycerol suppositories.
3.      Difficulties in coping with any air-conditioned environment.
4.      Problems with sweating and related bad body odour which he attributed to the effects of the second spinal operation on 16th February 1993.
5.      Need for regular medication as a result of his candida infection.
6.      On going difficulties and complications with his lungs which he related to the airways being over-inflated and the presence of “metastatic nodules on the right side of the lung”.
The plaintiff is now a thin man, who was in a wheelchair whenever I saw him. I do not know how long he has been in a wheelchair. That fact is not noted in any medical report. In his report of 13 October 1998, Dr. Pitts (in Los Angeles) noted that he was walking with a cane and with the gait described by others both before and after the incident. He grunts with pain quite a lot. He was able to speak, virtually non stop, and, at times, very loudly for hours. This he did in an air conditioned court room. He certainly looked pretty tired and said he was in pain after a few hours in court. I would suspect that, if only through disuse, his whole body is rather wasted. He looks weak.
The last stage of his history which I wish to detail is that, partly for medical, and partly for medico legal reasons, he wished to get expert opinion from outside Australia. He believes that any doctor who might examine him in Australia would come to a view coloured by untruths and half truths spread about him in the complicated course I have related. Doctors would close ranks to protect each other and would not reveal to him his true state, or its causes. I make no finding that that is so, though I can readily imagine that some doctors might shy away from getting involved on learning of the plaintiff’s unhappiness with so many other well know practitioners. I accept that the plaintiff genuinely believes it to be true.
The outcome was that, with the help of his children, a trip to Los Angeles was arranged. He went in September 1998. He has tendered a number of medical reports and also what appear to be the results of exhaustive pathological investigations. The authors of the various reports are not known to me.
I received CV’s of some, and they are most impressive. It is not contested that they would qualify to give evidence as experts. Their reports, as far as they go, appear to have been prepared at least as competently and carefully as reports I am used to seeing (and I do not intend by that to damn them with faint praise). I was interested to hear that the plaintiff did not appear to have “shopped around” to find doctors who might not be objective. He was sensible enough to get a second neuro surgical opinion. He told me that he simply selected a name from a list in the Los Angeles telephone directory.

In short, I have no reason to suspect bias. Their views do not seem to be seriously challenged by Mr. Jose, who would be better able to detect medical flaws than I. He did not suggest that unorthodox treatments were being put forward.
The upshot is that very sophisticated tests confirm the presence of candida and of two other organisms. Medication will have to be maintained, as well as strict diet. There are signs of some abnormality in the plaintiff’s lungs. They were noted in Australia many years ago. They must be watched, as it is possible that certain nodules are metastatic, though the more probable and more hopeful diagnosis is of granulomas, which are not significant. There is airways disease, with slight hyper inflation of both lungs. The plaintiff says that he has been told that that was caused by the general anaesthetics he has had. There is no medical evidence about this.
As for the spine, the Los Angeles doctors confirm that no further significant surgery should be performed. They speak of “failed laminectomy syndrome”. I am not clear whether that is supposed to reflect defective performance of a laminectomy (which is the plaintiff’s belief), or to the situation in which despite “successful” surgery, the patient’s problems are not cured. In any event, the belief that no further major surgery should be undertaken is entirely consistent with the views of Australian surgeons.
It had been suggested in Australia that the plaintiff might suffer from arachnoiditis, a permanent irreversible nerve problem. I have no medical description of the condition, but understand that it is a painful malfunction of bundles of nerves, in this case in the low spine. The Los Angeles doctors concur in this view. Mr. Jose appears to think it not an unlikely diagnosis.
The Los Angeles doctors suggest that there remain only two options. One is to fit a morphine pump to control pain. I can readily accept the plaintiff’s view that permanent dependence on morphine is not a good idea, except as a last resort. He does not want to follow that path. The other is to use an electronic nerve stimulator, as I understand it, to scramble or block the transmission of pain signals. Various such devices have been around for years. The Los Angeles doctors say that the latest and best version is so new that it is not yet known and used in Australia. They suggest that a trial be carried out with a temporary device. If that worked, a permanent implant could be performed.
The catch is that it is very expensive. The whole procedure is likely to cost US$100,000 to US$200,000. Even the temporary test is expensive. By Australian standards, US medicine appears costly. If the same procedures could be carried out here, I would expect them to be far cheaper. The device suggested involves bilateral nerve implants. It is said that only single implants have been used in Australia - a doctor in Perth is said to have experience. Mr. Jose says that implant technology is known in Australia and believes that the implants could be carried out here. If there are special techniques not readily known here, there is no evidence about it beyond the, no doubt perfectly true, claim by the Los Angeles doctors that they are experienced with the latest device.
I am used to hearing evidence about other sorts of nerve stimulators. Sometimes patients report good results, sometimes not. While that may relate to skill in prescribing and installing them, I suspect it also relates, at least to some extent, to the patients faith in their efficacy. For reasons largely beyond his control, I do not think the plaintiff is likely to have that faith in an Australian installation. However, regardless of what I decide in this case, I believe the plaintiff would be well advised to speak to, say, Mr. Beetham, whom he trusts, perhaps getting referred on to an appropriate specialist in Australia for further advice, before embarking on any such expensive course, with no possibility of a guaranteed result.
I make no apology for this lengthy and discursive history. I agree with the plaintiff that it shows a sort of snowball effect. To understand where he is now, one must see how it all developed.

100 I have already found that factors preceding the incident markedly predisposed him to suffer further problems, even in an only moderate violent collision. I generally accept Mr. Fraser’s assessment that the incident precipitated the need for the last three operations. They caused the pulmonary embolism. There was a great deal of pain and dependence on help. The plaintiff is still in a great deal of pain. The suggested treatment in Los Angeles may or may not help him. He will not be offered more significant surgery - as it would be dangerous and would do no good. His propensity to develop embolisms puts him at risk, if other everyday conditions requiring surgery were to develop.

101 At least two major factors complicate any assessment. The first is trying to prognosticate on his future. The second is trying to guess if and when any of his problems and treatments may have become necessary, even if the incident had never occurred.

102 What will his future be?

103 He certainly has serious organic or physical limitations. They cannot be improved. He is presently rather wasted. If he could find some way to exercise, he might greatly improve his fitness. Some of his limitations are psychologically based. I would guess that it was those limitations which greatly improved after previous cases, when he presented in a very debilitated state, but thereafter achieved great improvement. No doubt each time you try to pick yourself up, it gets harder and harder. I don’t think he has previously been quite so run down as he is now. Despite that, I entertain hopes that his own resilience, with or without the addition of a nerve stimulator, may lead to him overcoming his pain to an extent sufficient to permit him gradually to improve his fitness.

104 My best guess is that, in a couple of years, he will be much better. He will not be strong. He will not return to work. He will control his depression better. He will not use his wheelchair, at least not much. I expect he will get out and about more, but it will be gradual. He is a fighter and I expect that, when he comes to accept that he has reached the end of the road for other than orthodox, conservative, medicine, he will begin to improve. Recognising that this case is not his only current litigation, I hope that resolution of this case will, nevertheless, assist him. He is likely to need support and pain relief from physiotherapy/chiropractic/acupuncture and like modalities from time to time. Acknowledging that history may prove me wrong, that is what I foresee.

105 What part did the incident play?

106 There can be no doubt that he may have come to the L5/S1 fusion and all of its attendant complications in any event. It is also quite possible that he may not. At the very least, he may not have come to it so soon. I think the fair assessment is that he may have pottered along relatively indefinitely, but was always subject to a substantial contingency that continuing degeneration, or some relatively minor traumatic incident, would have precipitated the need for surgery.

107 Fortunately for me, I do not have to reflect these considerations in any significant assessment of loss of earnings, or of earning capacity. On the Wrongs Act scale I allow a number of 25. The multiplier for a 1990 accident is $1,240, giving an assessment of $31,000 for non economic loss.

108 The plaintiff had not worked for some years before the incident. He was on the invalid pension. He was never going to get back to ordinary employment. He may well have got back to some backyard work on a small scale. That work had not generated a taxable income in the past. I allow a token $5,000 for past and future economic loss.

109 As of 1989 he needed a lot of assistance in his everyday life. He says he improved a good deal in 1990. After the incident, he was again very dependent on others. A great deal was necessarily done for him by his wife, his son and his daughter. I have virtually no evidence about it, apart from general references. I have noted that there is a contingency that events may have followed a similar course, albeit at a later time, even if the incident had never happened. Even though he says he had recovered, prior to the incident, to a state of being relatively symptom free, he was a man on the invalid pension, unable to work and needing help in various ways - eg, there is reference to his son mowing lawns after the incident, but I guess he did so before it as well.

110 The sort of proof of this item that would be expected in a case run by a professional is just not there. The defendant has urged me, in essence, not to feel bound by pleadings or the usual rules of evidence; rather, I must try to be fair to the plaintiff and to minimise the effect of him representing himself. The defendant is entitled to considerable credit for this attitude. However, I do not think I can construe preparedness to waive strict proof as an invitation to make up the case that I guess might have been presented.

111 It is now a little over eight years since the incident. I shall adopt what I consider to be a minimum position of assessing that, after allowing for the contingencies I have mentioned and for the needs which pre dated the incident, the plaintiff has needed an average of an hour a day of assistance which, if not provided by his family, would have to have been provided professionally. At times - eg when recuperating after operations, it would have been far more. Sometimes it may have been less. The plaintiff’s wife has done a lot of voluntary nursing. I shall assume 3000 days of one hour at $10 per hour, giving a figure of $30,000. For reasons I will come to in a moment, while I am prepared to be so rough and ready in relation to the past, I am not prepared to project it into the future. I make no award for future care - not because there will be none, but because I am not satisfied it can be sheeted home to the incident.

112 Similar problems bedevil assessment of special damages. Most of those already incurred can be seen to relate to the three operations, to consideration of sympathetic dystrophy, to intestinal problems and to conservative physiotherapy and like treatment. Arguably, not all were strictly necessary, but I think that this complex case is one in which it is only fair to allow some leeway.

113 That does not, however, mean that every problem the plaintiff now suffers, or which he will suffer in the future, is attributable to the incident. Several factors are at work. One is the contingency that by now, perhaps even some time ago, the plaintiff would have been in much the state he is now in. Having regard to the repeated findings of degenerative changes in his spine, that seems to me to be a strong possibility. Another problem is that it is not clear whether, on the assumption that his problems relate to “failed laminectomy syndrome”, they relate back to the laminectomy carried out before the incident. Were later attempts to improve the situation helpful, neutral, or actually causative of harm? Assuming the correctness of a diagnosis of arachnoiditis, what caused that? If there is a need for nerve implants, is that a result of the incident? If I were dealing in small amounts of money, I might stretch the point in favour of the plaintiff. That sort of latitude is not possible in relation to treatment expected to cost US$100,000 to US$200,000. Whether the plaintiff chooses to undergo that treatment is a matter for him. I content myself with finding that it is not proved that any need for that treatment is a consequence of the incident.

114 I have carefully considered document G which contains the plaintiff’s submission about future expenses. In addition to the costs for treatment in Los Angeles, he sets out a long list of treatment, suggested by various doctors, which could be performed here. He lists various further investigations. He lists medication expenses. He estimates he will need $4,745.55 per annum on this account alone. He envisages professional nursing care and periods of residence in a nursing home. A fundoplication operation to rectify oesophageal reflux may cost about $8,000 to $9,000.

115 Evidence given in relation to claims pre dating the incident strongly suggested that much of the “non Los Angeles” treatment was likely in any event. Despite that, he seemed to get much better on resolution of those claims. I am by no means convinced that that will not, at least to a great extent, happen when this litigation is over. If I am wrong, and he does have this treatment, I am not satisfied that it could be said to be caused by the incident.

116 Dr. Pitts gave his advice on the assumption that there was a spinal fusion at L5/S1, which was broken in the incident. That is certainly the plaintiff’s view and is what he told Dr. Pitts. In my view that is doubtful. As I have noted, I do not think there had been a fusion through the disc space at that level. There was probably a left facet joint fusion or fusions and there is some doubt about whether bony or only fibrous fusion was achieve at one level. Dr. Pitts was properly cautious in attributing blame for the plaintiff’s state. He never said that everything was attributable to the incident. However, as he understood that a spinal fusion had been broken, he thought it likely that there would have been bleeding which would have irritated nerves. Insofar as it may be inferred that it is those nerves which are involved in arachnoiditis and which need surgical implants, I am not satisfied that the chain is properly established. The consequence is that I will award a lump sum for future special damages intended to cover future conservative care in Australia.

117 I see that as involving a period of psychological support, a period of mobilisation, and an extended period during which he will need medication. He will need family support. I propose to allow a good proportion of his expenses to date, recognising the contingency that they or some of them may have been incurred even if the incident had never occurred. That contingency is dramatically more significant when considering the future. I will allow a lump sum of $10,000 for future expenses.

118 The plaintiff is not entitled to recover the $250 excess on his comprehensive insurance in this action.

119 The plaintiff’s “Further final amended list of special damages” is dated 3rd February 1999. It purports to be in respect of “Medical expenses and disbursements only”. That may be correct, but I note, for example, a consultation with Dr. B North on 20 February 1996. I was not aware from other evidence of this consultation - but is it medical or medico-legal? I am not aware of whether the defendant has seen proof of the payment or incurring of liability for these expenses. In case there is dispute over this sort of detail, I shall allow the defendant two weeks after the date of this judgment to apply to vary it in respect of any item it may claim has not been spent, or for which liability has not been incurred.

120 More importantly, I must turn to questions of whether the items were reasonably incurred and incurred as a result of the incidents. I refer to page numbers in the plaintiff’s above mentioned list. I have found that:-

a). he had many pre-existing problems.
b) it is not unlikely that he would have required much of this treatment, even if the incident had not occurred.
c) but it was not inevitable, merely a substantial contingency.
d) The event which immediately precipitated the need for this bout of investigation and treatment was the incident.

121 I must also look at whether they were reasonably incurred in all the circumstances - particularly the circumstance that the plaintiff was highly pre disposed to react badly to such incidents and to need much more support to get him through than some others would. But he does not simply have carte blanche to incur whatever expenses he may choose.

122 I am troubled by the claim (Page 4) for psychological support, to use a lay description from, in particular, Mr. Quinton. He appears to be owed $41,343.00 for consultations over a 6 year period. I accept the detailed reports by Mr. Quinton in which he discussed the need the plaintiff had for his services at various times. I accept that there were times when the plaintiff bordered on being suicidal, and that there were times when his frustration with legal advisers led him almost to murder. It was obviously appropriate for Mr. Quinton to give intensive support at those times.

123 I particularly refrain from any conclusion that Mr. Quinton has over serviced the plaintiff in order to maximise his earnings. There are plenty of easier ways to make money than to spend many hours counselling the plaintiff. Mr. Quinton has not been paid and can never have been at all sure he would be. The unpaid debt must be a considerable burden to him. In short, he is not in it for the money.

124 Having said that, I do not think that all of the need for all of the counselling can fairly be sheeted home to the incident. An obvious example is the counselling directed to coping with dissatisfaction with lawyers. At a more unspecific level, much counselling is likely to have been directed to coping with problems inherent in his pre-incident personality and to complex life matters too remote to be regarded as incident-caused. In the absence of any more detailed way to resolve the matter. I propose to allow $20,000.

125 With considerable hesitation, but having regard to the very unusual nature of the case, I allow the expenses related to the trip to Los Angeles and of the investigations and reporting obtained there. If anything turns on whether they are special damages or costs, I give liberty to address argument to me about that. At pages 14 and 15 are set out various debt collection fees claimed by various providers of services. I disallow them as part of the claim. They amount to $607.

126 On my additions, the claim breaks down to:

Medical expenses in Australia  $66,336.15
Medical expenses in Los Angeles                 $19,243.09
Medication  $ 1,322.85
TOTAL  $86,902.09

127 In addition to the specific remarks I have made about the debt to Mr. Quinton, there is the general contingency that, even if the incident had never occurred, many of the problems treated since would have needed treatment in any event. Using a very blunt axe, I allow special damages in the sum of $70,000.

128 The defendant has pleaded that the plaintiff has not complied with section 127 of the Motor Vehicles Act and that it has been prejudiced by that. That section provides (S127(2)(b)) that a claimant such as the plaintiff must notify the defendant within 21 days of consulting any medical practitioner of that fact. Subsections (5) (6) and (7) empower the court to reduce a claimant’s damages on account of any failure to comply with subsection (2) (b) - indeed to dismiss any action in respect of a period of default and to award costs against such a plaintiff.

129 I have mentioned problems the plaintiff has had with solicitors. I accept his evidence that, in general, he kept his solicitors informed about medical consultations and treatment he undertook. I accept the advice of the defendant that, in general, the defendant was not kept so informed. In general, I do not regard the plaintiff as responsible for this. I must consider the effect of non compliance by the plaintiff on the proper conduct of the case by the defendant and of possibilities of settling the case before trial. I dismiss the latter consideration - this was never a case that was going to settle. The former is more complex. The same firm of solicitors has handled the defence in all of the motor accident cases. The Motor Accident Commission is different from SGIC, who, I understand , underwrote the defendants in all the trials before now. Nevertheless, I believe it would have had ready access to the files conducted for SGIC. There can be no suggestion that it did not have extensive information about the plaintiff and his background.

130 As the plaintiff’s juggernaut rolled on, I cannot see that the obtaining of further reports by the defendant, and the showing of those reports to the plaintiff’s treating doctors, would have had the slightest effect, or altered the course of events in any way. Those who treated the plaintiff (at least those who gave significant treatment) were all well aware of his past history and of all of the sorts of factors which might have been argued to contraindicate the treatment they eventually gave. In particular, the surgeons who operated, that is Messrs. Fraser and Osti, were initially reluctant to do so. They knew the problems. I cannot think that their decisions to operate would have been any different if they had had the benefit of reading the views of even the most forceful of the medical advisers to whom the defendant might have sent the plaintiff. In short, the defendant was not kept properly informed, but I do not think it has made any difference. I decline to eliminate or reduce any entitlement which the plaintiff otherwise has.

131

I summarise:-

1.     Wrongs Act damages  $31,000.00
2.     Economic Loss  $5,000.00
3.     Gratuitous Services  $30,000.00
4.     Special damages
A.     Past  $70,000.00
B.     Future  $10,000.00
TOTAL  $146,000.00

132 Subject to argument about costs, if some special damages need to be separated, there will be judgment for $146,000. This figure is additional to the amount paid on account of damages by the defendant. I will hear the parties on costs and on any interest which may be payable.

APPENDIX

Schedule of documents taken into account in preparing judgment.
Transcript of proceedings in this court.
A).... Pleadings etc on file, including various affidavits by or on behalf of plaintiff.
B)Documents lodged during trial, including
i)...... Manilla folder containing sundry statements, news cuttings etc.
ii)     Volume of medical reports prepared by plaintiff and indexed by defendant, the index referring to 121 items.
iii)... Volume containing “Credentials of USA Specialists”.
iv)     Volume of medical reports prepared by defendant.
v)..... Volume containing 117 pages of transcript of evidence taken before His Honour Judge Taylor in 1988.
vi)     Plaintiff’s further final amended list of Special Damages.
vii)... “Chronology” of past and future medical expenses prepared by plaintiff.
viii) Written submission by defendant.
ix).... Written submission of plaintiff, containing 1 - 8.
1...... Paper bag containing press cuttings about medical mistakes in other cases.      Not read
2.Paperback “What Your Doctor didn’t learn in Medical School” -
......... I read an extract supplied during the hearing, but did not delve further into this book.
3.Video relating to spinal cord stimulation.     Not viewed.
4...... Booklet relating to Spinal Cord Stimulation.         Read.
5.Booklet relating to Candida.        Not read in full.
- appeared to discuss many irrelevant conditions.
6.Transcript of proceedings in court in this case. Extensively marked with “yellow stickers”.   Read in any event, but re read at points highlighted.
7...... “Part 1” of Supportive Documents.   I read the introduction in full and those supporting documents which related to this case - I did not read those alleged to relate to misconduct by solicitors.
8.“Part 2” of Supportive documents.

For future reference I have had these documents marked with the relevant letters.

[1999] SADC 42

25 March 1999