| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : EVANS -v- PALLET [2005] WADC 17 CORAM : MACKNAY DCJ HEARD : 10-13 AUGUST 2004 DELIVERED : 9 FEBRUARY 2005 FILE NO/S : CIV 1517 of 2003 BETWEEN : LEON EVANS Plaintiff
AND
KEITH PALLET
Defendant
Catchwords: Damage - Assessment - Plaintiff 24 year old student at time of accident - Soft tissue injury to neck and other minor injuries - Total award of $247,656
Legislation: Nil
Result: Plaintiff entitled to judgment for $247,656
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Representation:
Counsel:
Plaintiff : Mr G Droppert
Defendant : Mr D R Sands
Solicitors:
Plaintiff : Ilberys
Defendant : Talbot & Olivier
Case(s) referred to in judgment(s):
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Bowen v Tutte (1990) A Tort Rep 81-043
Kandic v Kandic, unreported; DCt of WA; Library No 5208; 20 December 1996
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Thomas v O'Shea (1989) A Tort Rep 80-251
Case(s) also cited:
Chapman v Hearse (1961) 106 CLR 112
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
State Government Insurance Commission (Western Australia) v Oakley (1990) A Tort Rep 81-003
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Introduction 1 The plaintiff is an electrical contractor born on 4 September 1974. 2 On 26 June 1999 the plaintiff was the driver of a stationary vehicle which was struck to the front by the defendant's vehicle following a collision between that and another vehicle. 3 As a result of the accident the plaintiff was injured. 4 Liability is not in dispute but the defendant denies the plaintiff suffered injury and loss as alleged and says in the alternative that if the defendant has any loss that was caused or contributed to by a workplace accident on 22 February 2001 and/or pre-existing degenerative disease and not by any injury sustained in the accident. 5 Following the completion of oral submissions on 13 August the trial was adjourned sine die, with a direction that it would conclude on completion of the provision by the parties of written submissions, that not occurring until 15 September.
Plaintiff 6 The plaintiff said that he was educated at school to the end of Year 11. 7 Whilst at school he played soccer, both for school and for local club teams, from about the age of 9 years to Year 10 or 11, and also swam competitively. 8 The plaintiff said that following his departure from school he worked in a variety of occupations, including work as a driller in the north west. 9 He then worked as a ceiling fixer, he said, including work in a partnership for about three years, during which time he worked eight hours per day for five or six days each week. 10 The plaintiff said that he then worked as an air conditioning installer, and obtained a ticket for that. 11 At that time the plaintiff said that he decided to obtain an electrician's qualification so that he would be able to do all of the work involved in the installation of air conditioning units.
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12 As a result in the first half of 1999 the plaintiff said that he began a TAFE pre-apprentice electrician's course.
13 Eight weeks later, and on 26 June 1999 the accident occurred. 14 At the time of the accident the plaintiff's vehicle was stationary, with the footbrake applied, he said, and following a collision between the defendant's vehicle, a utility, and that of a third party, the defendant's vehicle "careered" into the front righthand side of his own. 15 The plaintiff initially said the collision pushed his vehicle back a metre, but after his attention was drawn to a statement given by him in August 1999 to an investigator in which he said the collision "did not move (his vehicle)" he qualified that. 16 The plaintiff also said the righthand end of the bullbar on his vehicle was bent back 90 degrees by the defendant's vehicle. 17 After the accident the plaintiff said he was conveyed by ambulance to Joondalup Hospital, but was allowed home later that day. 18 The plaintiff said that his injuries included one to the neck, an injury to the foot, which was x-rayed at the hospital, and minor cuts to an arm, whilst he felt "shaky". 19 There was pain and tightness in the neck, particularly on the left, the plaintiff said, and that night he became increasingly sore in the neck and the shoulder. 20 The following day the plaintiff saw Dr Dennis at the Whitfords medical centre, and was referred for physiotherapy, he said. 21 Physiotherapy was provided for his neck, mainly on the left, with some shoulder treatment, the plaintiff said, and continued for about nine months, with attendances three times per week, until ICWA ceased payment for it following a review and report by a Dr Saunders. 22 The plaintiff said that after the physiotherapy ceased he had no further treatment for a time as he was of the view nothing would be paid for and he could not afford it himself, but he was still symptomatic, and had informed the doctor of that, the response being a suggestion to take anti-depressant medication.
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23 Physiotherapy had provided some relief for his symptoms, which included pain, headaches, tightness and soreness, particularly on the left side of the neck and in the trapezius muscles, the plaintiff said.
24 After being unable to attend TAFE for a week following the accident he had been able to continue with his apprenticeship, the plaintiff said, as his employer contracted him out to do service work. 25 On a date he thought was about 28 February 2001 the plaintiff suffered a sudden increase in pain when he attempted to lift a 6 ft fibreglass ladder which weighed c 10 kg at a construction site in East Perth, he said, such that he was unable to continue his work, that being the wiring of lights in an apartment. 26 The plaintiff said that he saw his own doctor the same day, he thought Dr Tan, was given a week off, then taking another week, submitted a workers' compensation application, and was referred by the insurer to, and saw, Dr Adonis. 27 He continued to see Dr Adonis approximately monthly to the end of his apprenticeship, the plaintiff said, and was given numerous referrals for physiotherapy by him. 28 The plaintiff also saw Dr Bowles for the insurer, in April 2001, he said, and informed that doctor he had not had a flare up of his neck symptoms for some time prior to the ladder incident. 29 However, he had never been pain free, the plaintiff said. 30 The plaintiff duly returned to work. 31 Following the ladder incident his symptoms had included neck pain and tightness and headaches, the plaintiff said, such that he later found it hard to cope and was put on light duties. 32 In October 2002 the plaintiff said he received a facet joint injection from a neurologist, Dr Silbert, which assisted with his headache, and later had a follow-up with that doctor. 33 As work with his arms above his head or work in an awkward position increased his symptoms, the plaintiff said, he was in the same year put off work for three months by Dr Adonis, who also arranged for him to be placed with a lighting company on light duties.
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34 The plaintiff said arrangements were also made for him to be "signed off" early from his apprenticeship, and that occurred in April 2003.
35 He had not given his trade away in the face of the physical problems as he was "fairly determined", the plaintiff said, and had forced himself to complete the apprenticeship. 36 The plaintiff said he did decide to become an electrical contractor and to start his own business, in the hope that would enable him to manage his symptoms better, and after obtaining the necessary qualification, and borrowing money from his family, he set up as such and did some work at home in his shed. 37 He also looked for employment within his capacities, the plaintiff said, but did not find much until June 2004, when he was employed by Osborne Park Electrics as a casual employee. 38 That involved the carrying out of light duties in the wiring of houses, the plaintiff said, for between four and eight hours per day, without any heavy work or work in roof spaces. 39 He could only stand for four hours, the plaintiff said, and the work had increased his symptoms, including work with his arms above his head, so that he had been obliged to take some days off, whilst he took Mersyndol Forte. 40 The plaintiff said that he was dubious about his future prospects, and had to avoid jobs which might aggravate his injury. 41 Overall his symptoms had increased since the ladder incident, and now included pain in the neck and shoulders, particularly on the left, daily headaches, low back pain, and depression, the plaintiff said. 42 Medication included daily anti-inflammatories, Panadol or Mersyndol, and an anti-depressant for sleeping, at the moment two Valium tablets, the plaintiff said, whilst he had ongoing physiotherapy, acupuncture and massage. 43 For his depression, which had made him almost suicidal, Dr Adonis, in addition to speaking to him about it on numerous occasions, had prescribed medication, including Zoloft, the plaintiff said. 44 Prior to the accident he had been very active, the plaintiff said, with activities which included fishing, scuba diving for golf balls, waterskiing,
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and other boating activities, all of which had been attenuated or had ceased, due to his injury.
Medical evidence 45 The plaintiff called six medical practitioners to give evidence, and the report of a seventh was tendered. 46 Three of the seven doctors had treated the plaintiff. 47 The first, Dr Tan, is a general practitioner who in a report stated that he first saw the plaintiff on 30 June 1999, five days after the accident, in which the plaintiff had sustained a soft tissue injury to the neck, with lateral irritation to the right and left. 48 The second is Dr Marcus Adonis, a general practitioner, who first saw the plaintiff on 27 February 2001, following the ladder incident, and on behalf of the relevant employer, and who continues to treat the plaintiff. 49 The third is Dr Peter Silbert, a neurologist, who first saw the plaintiff on 11 September 2002. 50 The other four doctors all saw the plaintiff for medico-legal review at the request of his solicitors. 51 Dr Andrew Harper saw the plaintiff in October 2003 and May 2004 and provided three reports. 52 In those reports and his evidence Dr Harper expressed the view that the plaintiff's physical difficulties were due to the accident. 53 The doctor said that he relied on the history provided by the plaintiff that he had experienced intermittent symptoms prior to the ladder incident and his assessment was based on there having been ongoing symptoms prior to that. 54 Dr Harper said he did not regard the radiological changes as significant and such were mild in extent whilst modern medicine had found almost no co-relation between radiological change and symptoms. 55 The plaintiff's injury was most likely of a soft tissue musculo ligamentous type and the degenerative changes were not caused by or greatly contributed to by that, the doctor said.
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56 In his first report Dr Harper stated that he expected future work capacity would be compromised, that being permanent, and work restrictions were "to avoid overhead work, work in confined spaces and heavy forceful manual work such as using vibration tools and heavy pulling of cables and pushing".
57 The doctor said that those restrictions would reduce the plaintiff's competitiveness in the open workforce especially for construction work, but he did not expect the injury to result in premature retirement if such were observed. 58 The plaintiff had been left with a mild to moderate residual disability of the cervical spine which was principally the result of the accident, whilst the subsequent aggravation from the ladder incident had resulted in an increase in symptoms, that occurring because of the existence of the initial injury from the accident. 59 Dr John Quintner is a consultant physician in musculoskeletal medicine, rheumatology and pain medicine. 60 He said that he had seen the plaintiff on four occasions, the first three between April and June 2002, and the last in April 2004, and he had provided four reports. 61 The plaintiff continued to suffer a disability from accident caused injuries, the doctor said, although the precise nature of the injuries was unknown as the particular structure in the cervical spine at fault had not been identified. 62 The plaintiff was partially incapacitated for work as a result of the disability, and was "unable to perform his work in the confined space of roofs", the doctor reported, that incapacity being likely to persist into the foreseeable future. 63 The acute development of the plaintiff's neck and head pain following the accident made that more likely as a cause than degenerative change per se Dr Quintner stated. 64 The activities engaged in by the plaintiff in the course of the video were all within his assumed capabilities, the doctor said. 65 Professor Frank Mastaglia is a neurologist who saw the plaintiff in October 2003 and June 2004 and in the first of two reports gave a diagnosis of "a significant musculo ligamentous (soft tissue) injury to the
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cervical and upper thoracic areas of the spine" productive of ongoing symptoms and headaches of cervical origin. 66 After the plaintiff's return to work in 2004 and the problems said by him to be associated with that the doctor said it remained to be seen whether the plaintiff would be able to continue with his work or to increase the hours or intensity of it, and he assessed the plaintiff as having a permanent residual disability of 15 per cent of the neck and 2.5 per cent in relation to the upper back as a result of the accident. 67 As to the radiological evidence the professor said the changes to the plaintiff's spine may have developed through a mechanical injury and in relation to the osteophytes it was difficult to see what else would have produced the same. 68 Mr G Wayne Thomas is an experienced neurosurgeon who first saw the plaintiff in August 2003, and noted "a very full range of neck movement", but also tenderness, particularly in the paraspinal muscles and the upper trapezius near the neck, especially on the left side. 69 The plaintiff had sustained a soft tissue cervical injury in the motor vehicle accident, the doctor stated, and had that not occurred it was very unlikely the plaintiff "would be experiencing the symptoms that he has today", although the ladder incident had "served to cause a significant aggravation of the pre-existing problem", so that the plaintiff's symptoms had continued at a significantly higher level. 70 Mr Thomas also reported that he considered the plaintiff was genuine in his complaints, that it was clear he would continue with "significant symptoms for the foreseeable future", and that he would be able to continue as an electrician "provided he is able to avoid the more physically demanding aspects of that form of work". 71 The plaintiff had already decided to work independently so as to vary his work practice, the doctor stated, and to control the tasks that he did so as to avoid aggravating the underlying injury. 72 In a later report Mr Thomas stated that if the plaintiff had been symptom free for a significant period prior to the ladder incident the relationship to that would be "less direct and more obscure" and it would be necessary to apportion at least half of the "continuing responsibility" to the ladder incident.
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73 Mr Thomas further reported that he did not consider the plaintiff had significant degenerative change in the cervical spine, and as the plaintiff had not experienced cervical symptoms prior to the motor vehicle accident he could "quite clearly state" the plaintiff's cervical symptoms reflected injury and not degenerative change.
74 In evidence Mr Thomas said the video did not cause him to change any opinion he had previously expressed, the plaintiff not really using his arms overhead in it and there being nothing to cast light on how the plaintiff would perform if in an awkward position for a period of time, and those being problems for him. 75 Returning to those doctors who treated the plaintiff, Dr Peter Silbert said he had practised as a neurologist since 1992, had seen the plaintiff on four occasions, and had provided four reports. 76 In September 2002 the plaintiff was seen in relation to his headaches, the doctor said, those being cervicogenic in nature, and headaches of that kind often arose from the upper cervical spine facet joints. 77 The bilateral greater occipital nerve injection consequently administered had reduced the headaches, the doctor said, the steroid injected going down to the facet joints. 78 In March 2003 a left-sided injection was given to treat cervical discomfort the plaintiff was then having, Dr Silbert said. 79 Following a medico-legal review in April 2004 the doctor reported that the plaintiff then complained of headaches on average four days per week, which the doctor considered to be "muscle contraction headaches, with diffuse tenderness over the cervical musculature", without significant tenderness over the facet joints, whilst the plaintiff also had symptoms of anxiety and depression. 80 In evidence the doctor said the video of the plaintiff was in keeping with his assessment of him, although he did feel the plaintiff had a better physical capacity than "he was doing at the time but was locked in where he was primarily because of the medico-legal process", and that the plaintiff's demeanour was better and he was able to show neck extension suggesting the upper cervical spine region was not then a problem. 81 Stress brought about by a medico-legal process contributed to muscle contraction headaches, Dr Silbert said, together with such caused by
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uncertainty about work and the future, and resolution of the stresses diminished such headaches. 82 An increase in physical activity would also benefit the plaintiff, the doctor said. 83 In relation to the plaintiff's work capacity Dr Silbert was asked: "Well, put it this way, do you believe that he was capable of working in other areas of work as an electrician or as a, for instance, selling electrical goods, working as a storeman, repairing electrical goods such as washing machines and other machinery that - - -?---If I was involved in vocational guidance for this sort of person, I usually wouldn't suggest working in a store, selling electrical goods, which isn't directly related, but we would often direct their employment to bench-based work, for example. It may be smallgoods. Switchboard work is one. I saw someone a couple of weeks ago; had a low-back injury, and we redirected their training towards switchboard work is what this person was going to be directed towards. It would need to be assessed vocationally to see what that person could do within the broad, but that requires a formal vocational assessment to see what they are capable of." 84 Dr Adonis said in evidence that he had been in general practice since 1968, latterly with specific interests in sports medicine, for which he had been given an OAM, and injury management, his practice doing "the work" for a group of employers which apparently included the employer with which the plaintiff was involved at the time of the ladder incident. 85 The doctor acknowledged two reports, and in the first, in April 2002, said that the ladder incident on February 2001 had caused an injury to the plaintiff's cervical region in the vicinity of the C5/6 facet joint, but that by the date of the report the majority of his symptoms related to the motor vehicle accident. 86 The doctor also stated that: "Perhaps the most appropriate method of assessment would be that Mr Evans exacerbated a relatively quiescent neck condition (injury) due to a work related incident. This has now settled and the major problem now confronting Mr Evans is the underlying injury that was present as a result of the motor vehicle accident he sustained in 1999."
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87 In the second report, provided in May 2004, Dr Adonis said the plaintiff had first seen him the day following the ladder incident, and had told him that "he had mainly recovered from (the motor vehicle accident) when he sustained his further problem … ".
88 The doctor stated that he considered that during his management of the plaintiff the latter's "underlying 'condition' " was probably more significant than the actual ladder incident, that he had by then fully recovered from it, and that it "should not be a factor in the overall determination of the causation of Mr Evans' ongoing problems". 89 In evidence Dr Adonis also said that there was nothing in the video which would cause him to alter his view. 90 The plaintiff had been seen by him fortnightly or monthly in the management of the ladder incident injury, the doctor said, and when treatment for that was concluded in July 2002 the plaintiff had elected to see him for the motor vehicle accident injury. 91 Dr Adonis said that apart from the neck the plaintiff had been depressed and had struggled "both physically and psychologically to continue to be employed after he'd finished his apprenticeship". 92 In the course of his evidence the doctor was also asked by me for his view of the plaintiff's future work capacity and said:
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spaces and so on full-time?---At this time I wouldn't recommend it." 93 Three medical practitioners gave evidence for the defendant, Dr Saunders, Dr Flahive and Dr Bowles 94 Dr Saunders, who gave evidence de bene esse, is a surgeon who said that in the last 10 years he had principally carried out medico legal examinations, and had seen the plaintiff in February 2000. 95 Following that review of the plaintiff the doctor reported to an insurer that the plaintiff still complained of headache and a constantly tight neck, had problems studying because of the neck, attended physiotherapy regularly, and could not "do much above shoulder level because of stiffness in his neck". 96 The doctor expressed the view that the plaintiff had suffered a soft tissue injury, that although physiotherapy had improved his condition studies showed that he was unlikely to gain further benefit from it, that the physiotherapy ought cease, and the plaintiff ought be placed on a low dosage Tricyclic anti-depressant for 10 to 12 weeks. 97 The plaintiff was next seen by Dr Saunders in March 2004 when he noted the plaintiff had "the hands of a man who must be actively and regularly engaged in some type of heavy work", and also expressed views that the plaintiff had pre-existing degenerative disease as a result of playing soccer, that such had been aggravated by the motor vehicle accident, which had almost certainly also caused the soft tissue injury to the neck, that "it was more than possible" there had been an acute prolapse of a disc in the ladder incident, and that the plaintiff's then current symptoms were due to degenerative disease aggravated by the motor vehicle accident and then the ladder incident. 98 As to the plaintiff's work capacity at that time the doctor stated: "I doubt that Mr Evans is capable of working full-time as an electrician which requires him to work in confined spaces. However he now has his electrical contractor's certificate and he said he now intends to set up his own business and work full-time in the service industry." 99 In a final report of July 2004 Dr Saunders stated that although he persisted with his view that any symptoms still experienced by the plaintiff were due to degenerative disease caused by soccer, after viewing
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the defendant's video of the plaintiff he would have extreme difficulty in saying that the plaintiff was unable to work in any industry of his choice. 100 In evidence, however, Dr Saunders agreed his description of the events depicted in the video in his last report was in a number of respects inaccurate. 101 Dr Flahive is an occupational physician with Murdoch Vocational Health, and said his work included coverage for BHP Billiton of the workforce of that company's mine at Newman. 102 Four reports from Dr Flahive were tendered. 103 In evidence the doctor said that he first saw the plaintiff on 23 July 2001, for the latter's employer, and provided a report a few days later. 104 In that report the doctor stated that a CT scan indicated some degenerative disease in the plaintiff's cervical spine. 105 The doctor said: "Based on Mr Evans' statement today there appears to be some relationship between his current symptoms and his neck injury received approximately two years ago. He clearly believes there is some relationship. However, there may be a number of reasons why he may wish to have this attributed to the previous accident, but I would not comment on attribution until I have viewed further information relating to the previous injury." 106 However, in a further report of 11 February 2002 Dr Flahive, after reference to the reports of some other doctors, and to his review of July 2001, said: "At my review, Mr Evans indicated that he believed there was a relationship between his injury of 25 July 1999 and his ongoing symptoms. However, I was of the opinion that his symptoms were more likely to be related to mechanical neck pain that was related to the early degenerative disc disease in his cervical spine." 107 The doctor went on in that report to state that it was likely the pre-existing degenerative changes had been made symptomatic for "some months" by the "crash", and were the cause of his recurrent symptoms.
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108 Dr Flahive said that he reviewed the plaintiff again in July 2004 and provided a report as to that on 7 July.
109 In that report the doctor stated that the plaintiff had complained of depression since the motor vehicle accident, recently worse and at time near to suicide, and said he had commenced anti-depressant medication three weeks earlier. 110 Reference was also made by the doctor to the plaintiff's hands, and he expressed the opinion that such were calloused and had ingrained dirt, whilst the plaintiff also had excellent musculature of the upper limbs consistent with regular physical activity. 111 A recent MRI scan had not shown any significant disc protrusion or nerve root impingement, Dr Flahive said. 112 The doctor further stated: "It seems clear from Mr Evans' ongoing reports of neck pain and seeking of treatment, that he is genuinely troubled by persisting neck pain and headaches. Given his examination findings, I am of the opinion that a diagnosis of non-specific neck pain is appropriate, although I am a little unsure of the extent of his disability, given the inconsistency in his physical findings. In relation to why his neck pain has been so persistent and recurrent, it is well documented that chronic and recurrent neck pain is frequent in the general population (between 8-15%) as is degenerative disc disease. Many studies have indicated that the cause of neck pain is multi-factorial and related to posture work activities (working with arms raised, neck bent forward, of in awkward or constrained positions), psychosocial factors (monotonous work, low personal control over work), stress and depressive symptoms. In relation to motor vehicle accidents, prospective and experimental studies have shown that neck pain and headaches do develop after motor vehicle accidents but they are reasonably short-lived and settle within a few weeks of the trauma (as the soft tissues heal), and the incidence of neck pain and headaches after such motor vehicles are no greater than in those individuals who have not been involved in motor vehicle accidents.
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In relation to degenerative disc disease, Professor Harper is correct in pointing out that there is a poor correlation between degenerative disc disease and neck pain. This probably relates to both being reasonably common with 17% of subjects in their 20's and 25% of subjects less than 40 having degenerative disc disease on MRI scans and the cause of neck pain being related to a number of factors. There is evidence that more severe degenerative disease is associated with neck pain, and although there are no significant disc protrusions on Mr Evans' MRI, there is evidence of multi-level disc and joint pathology in his cervical spine which does raise the possibility that the disc disease plays a role in mechanical instability and his recurrent neck pain. There is no scientific or medical evidence that motor vehicle accidents such as that described by Mr Evans result in degenerative disc disease. As I have indicated, Mr Evans does appear to be genuinely suffering from episodes of neck pain, however the issue appears to be that of causation. … Given that the interval of time that has lapsed since the motor vehicle accident in addition to known factors of neck pain it is probable that a number of factors are related to his ongoing symptomatology. Specifically, his daily activities including his work with his arms above shoulder height, maintaining at times constrained or awkward postures in addition to an underlying vulnerability to neck pain in addition to the stress on the cervical spine of daily living, muscle tension and possibly the pending litigation are probably more related to his episodes of neck pain than his motor vehicle accident or other trauma he sustained playing sport as a child. Mr Evans does have underlying degenerative disc disease and in my opinion it is probable that this is also a factor that predisposes him to intermittent neck pain. It is correct to say, however that it would be difficult to prove this without proceeding to diagnostic injections. This is not warranted given the level of symptomatology.
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I remain of the opinion that the effects of the motor vehicle accident have probably long resolved and do not play a role in his ongoing symptomatology. It is, however apparent that a firm belief system has developed and this can be perpetuated by medico-legal reviews that Mr Evans' ongoing symptomatology including his left and right-sided neck pain and upper back pain is all attributable to the motor vehicle accident, although evidence suggests the effects of which probably has long resolved." 113 The plaintiff ought avoid "prolonged above shoulder work or awkward or constrained postures" Dr Flahive said, but despite that need he "should be able to undertake most activities of an electrician". 114 In a further report of the same date Dr Flahive referred to the video and said it led him "to have some doubt" in regard to the severity of the plaintiff's symptoms and disabilities. 115 In evidence Dr Flahive agreed that a failure to avoid work of the relevant kind would result in increased symptoms. 116 As to the cause of any present symptoms, "good studies" showed that individuals who had motor vehicle accidents generally got better, and reasonably quickly, the doctor said, and it was known from studies that "people experimentally don't develop chronic neck pain after motor vehicle accidents". 117 Dr Flahive agreed those studies related to the effect of headrest size and the like, and involved very small numbers of volunteers, sometimes two in number, whilst individuals with any degenerative change were excluded. 118 Dr Bowles, an occupational physician since 1998, and in practice since 1999 for an entity formerly known as Prime Occupational Physicians, now Prime Specialist Medical Services, provided a report on behalf of the entity to the workers' compensation insurer on 6 April 2001 following a review of the plaintiff on the same day. 119 In the report, and in relation to the medical history given by the plaintiff following the motor vehicle accident, the doctor stated that the plaintiff "had ongoing treatment for 6-9 months at Seacrest Physiotherapy. He said the neck complaints had cleared up after that time and he had not
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been having any trouble with the neck for approximately a year prior to this episode of events". 120 In evidence the doctor said he made notes of the conversation with the plaintiff which included: "Whiplash June 1999, sit at stop sign, car ricocheted into him – whiplash/cuts/bruises, took a while to clear, not troubled for a year, treated with six to nine months physio Seacrest, pre-apprenticeship missed one to two weeks." 121 In his report Dr Bowles also noted a complaint of "a sudden onset of left-sided neck pain" at the time of the ladder incident, and that subsequent symptoms included daily headaches "coming from the neck" and tenderness there "particularly on the left side", together with stiffness. 122 The doctor stated that at the time of the report the plaintiff said he had ceased physiotherapy "at that point in time pending acceptance or not of liability". 123 The doctor further stated that the plaintiff had a "non-specific neck strain" which was resolving, and that "(m)ost with the episodes like this are either spontaneous or occur in activities that a person has undertaken many times previously with no significant difficulty. They are inexplicable from a medical perspective", and that "based on (the plaintiff's) representation … he had made a complete recovery from the motor vehicle accident". 124 The doctor said he saw the plaintiff again in March 2004, for the defendant's solicitors, and provided a second report, in which he expressed views that the plaintiff was fit to work as an electrician or an electrical contractor, to undertake any work he desired to do, and that "(w)hat was presented to me today in the physical examination would suggest that he is doing the same". 125 In evidence the doctor said the last statement was a reference to "skin changes on the hand which would suggest that the manual activity of a reasonable degree was being undertaken (sic)", that being "(c)allusing on the palm of the hand … and thickening of the skin". 126 If the plaintiff was suffering from neck pain Dr Bowles said he was unable to ascribe a cause. 127 As to that, in his report the doctor stated:
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"Unfortunately the Western medical practice is based on the paradigm of identifying an injury or pathology or disease process thereby providing further direction in treatment and prognosis. Most musculoskeletal complaints cannot fulfil this paradigm as the diagnosis is generally never definable and furthermore the longer term consequences are not related to the initial injury or pathology but more a function of the influence of other factors in that longer term pain and disability have little to do with any underlying injury when that injury would have expected to have resolved long beforehand. … Experimental studies and experiences in other countries without societal and cultural influences would show that an injury sustained by Mr Evans in the motor vehicle accident would have expected to resolve in a few days to a few weeks. That is to say any tissue pathology would resolve quickly. Further episodes of neck pain can be expected in the general population from time to time. Studies show that 8% or 9% of the population do suffer from chronic neck pain. The issue of causation only comes into the equation when there are secondary gains and in this circumstance recourse to compensation through either the motor vehicle accident, the workers' compensation claim or both. Relevant issues here including misattribution of common bodily symptoms as evidence (sic) by the recurrent neck symptoms of Mr Evans. Further examples here are the now right-sided complaints, thoracic and upper lumbar complaints, all normal bodily sensations but being misattributed to compensable events. Perpetuation of symptoms is also a function of this system with repeated medicolegal examinations and the inherent requirement to prove disability leading to the perpetuation propagation of any complaint. Dr Galton-Fenzi puts forward some hypotheses in regards to central sensitisation, which has some support in more recent studies showing that there is altered brain activity in those who complain of chronic pain. This would lend support that the injury, if one was ever sustained in the sense of the word, has
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128 In evidence the doctor modified the time period to a "few weeks to a few months". 129 The video had confirmed his conclusion as to the plaintiff, the doctor said. 130 In cross-examination he agreed the ladder incident was "fairly trivial", that ordinarily it would resolve within two to three months, and that the weight of the ladder was immaterial. 131 In a third report, provided in July 2004, Dr Bowles said "that symptoms in the neck and the back do not correlate with disability. That is pain is not a determinant of capacity". 132 The defendant's video confirmed the opinions in his previous report, the doctor said, whilst on the issue of "genuineness of complaints and symptoms" that was "not accessible from an objective perspective". 133 However, Dr Bowles also said that the: "… issue of malingering implies a fictitious or malicious attempt to manufacture symptoms and disability. I don't believe this is the case. It is likely Mr Evans does have some symptoms. In my opinion the causation of those symptoms is open to conjecture and more likely than not at this point in time, relate (sic) to psychosomatic issues, misattribution of symptoms and amplification of symptoms mainly as a consequence of the ongoing medicolegal claims processed."
Other evidence 134 Christopher Higginson is a 24 year old electrician who said he presently works as an electrical supervisor on a mine near Leinster.
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135 In the year 2000 he said he was an electrical apprentice and met the plaintiff on a job at a site in Royal Street, after which they worked together for a time.
136 As to the plaintiff's activities, Mr Higginson said he was a very good worker but the work included the use of heavy chasing saws and the plaintiff was "quite restricted in doing that kind of work, heavy lifting and so forth". 137 In that regard the plaintiff had "pains to his neck and shoulder and restricted lifting his arm (sic) and so forth", Mr Higginson said. 138 The plaintiff was involved in an incident with a ladder whilst on the job which caused him to lose some time from work, Mr Higginson said, and on his return he was "a lot different, more restricted". 139 Peter Niola said he undertook his electrical contractor's course with the plaintiff before going into business on his own account, and then had the plaintiff assist him with the installation of a switchboard, the work from the plaintiff's point of view amounting to very light duties. 140 The plaintiff had also worked with him on a job two years earlier, Mr Niola said, which had involved fitting down lights, and he had observed the plaintiff's arms becoming sore so that he could not hold them above his head for long periods of time. 141 Mr Domenic De Cinque said he was an electrician who had been in business for approximately 25 years, and traded as "Osborne Park Electrical". 142 The plaintiff had worked for him since June 2004, Mr De Cinque said, and although he had presented with advice that he was "limited in certain areas from a neck injury", had been taken on to do casual work due to a scarcity of other qualified labour. 143 The work being done by the plaintiff was, Mr De Cinque said: "Basically light duties stuff. Either marking out jobs, just wiring with help from the apprentice, certainly no digging or anything like that." 144 Although the usual hourly minimum was $25 the plaintiff was being paid $20, Mr De Cinque said, heavier tasks being done by Mr De Cinque or the apprentice, and the plaintiff was also not being required to crawl in roof spaces.
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145 As to the plaintiff's likely future he said:
"I'm going to lose my apprentice pretty soon, in a month or so. If Leon was capable of working full-time, I would certainly take him on just because of his attitude at work and that. I admire his attitude, the way he goes about his job."
Findings 146 The plaintiff impressed me whilst he gave his evidence, and during his presence in Court, as an intelligent, serious and apparently sincere person who did not try to overstate his symptoms, although conscious of his claim, and apparently under some stress. 147 After hearing the medical and other evidence, and following due consideration of it, I am confirmed in that impression. 148 The motor vehicle accident of 26 June 1999 caused the plaintiff's vehicle to be struck by that of the defendant with some force, there being no real attempt by the defendant to refute the plaintiff's evidence that the heavy bullbar fitted to the front of the plaintiff's vehicle was bent back about 90 degrees at the righthand end in the collision, and I have no difficulty in accepting that. 149 There was an immediate onset of symptoms in the plaintiff's neck, particularly on the left, I would find, and those soon extended into the shoulder, whilst headaches became a frequent occurrence. 150 The question whether those symptoms continued unbroken up to the time of the ladder incident in February 2001 clearly became, as a result of the report of Dr Bowles of 6 April 2001, a matter to which the parties devoted considerable time and attention. 151 However, I have no difficulty in accepting the plaintiff's evidence that he was never free of symptoms, albeit that such did not greatly trouble him beyond the restrictions imposed on him. 152 The evidence of Mr Higginson, who presented in a frank and honest manner, whose evidence was consistent with the objective facts and was not shaken in cross-examination, and whose evidence I accept, corroborates the plaintiff's evidence in that regard. 153 How Dr Bowles came to write his report as he did is probably not something that it is necessary to make any finding about.
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154 I note that when Dr Saunders saw the plaintiff eight months after the motor vehicle accident, and 12 months prior to the ladder incident, he recorded that the plaintiff was still symptomatic such that he required regular physiotherapy, and required in that doctor's view up to three months anti-depressant medication.
155 That sits unhappily with Dr Bowles' note "not troubled for a year", if such be taken to mean the plaintiff was without any symptoms for that period, and in the absence of any reason put forward as to why the symptoms Dr Saunders recorded would almost instantly abate without treatment. 156 However, the note, which is equivocal, could also be read to mean that the plaintiff's symptoms had not "troubled" him ie not been a particular bother to him for the period. 157 That is consistent with what the plaintiff said he told Dr Bowles, that he had not had a "flare-up" of his symptoms for some time. 158 It may be that in the circumstances the plaintiff was not anxious to highlight the significance of the motor vehicle accident, although I would not find he would have denied the existence of ongoing symptoms. 159 I accept that Dr Bowles did have an honest belief as to the accuracy of his report, albeit one which did not have any independent existence and had become truly entrenched as a result of the controversy. 160 It is necessary to remember that specialist medical practitioners often function under considerable pressure, and as here are necessarily reliant on their notes. 161 Such a record is not the equivalent of a transcript of evidence, and to substantially dismiss a person's claim on the strength of one doctor's note would not be a small thing. 162 No other documentary evidence in support was put forward by the defendant, nor any attempt made to show that in reality the plaintiff was completely without difficulty at work prior to the ladder incident. 163 And, as I have already found, both the plaintiff and Mr Higginson were honest witnesses. 164 I would not therefore rely on the report or evidence of Dr Bowles to the effect that the plaintiff had been without symptoms prior to the ladder incident.
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165 Dr Adonis impressed me as an experienced and careful medical practitioner, experienced in injury management, who initially saw the plaintiff for an insurer, who has continued to see the plaintiff on a frequent basis, and who has had an excellent opportunity to assess the extent and genuineness of the plaintiff's symptoms, since the ladder incident.
166 And as appears above, it is apparent that the doctor's view of the plaintiff is that he is genuine in his complaints and has done all that he can to overcome his difficulties. 167 Mr Thomas is also an experienced specialist medical practitioner, and I would place reliance on his opinion as to the cause of the plaintiff's symptoms, as well as that of Dr Harper. 168 Further, Dr Quintner and Prof Mastaglia were both, generally speaking, supportive of the plaintiff in relation to his symptoms. 169 As to the evidence to the contrary, I did not find the video persuasive and would accept and adopt the views expressed by Mr Thomas in relation to it. 170 Dr Saunders apparently supported the plaintiff in relation to his symptoms until viewing the video, which he misconstrued. 171 As stated, Dr Flahive also spoke of the plaintiff being genuinely troubled by a persisting neck pain and headaches at the time of his last review, and of a need to avoid prolonged above shoulder work or awkward postures, stating merely that "the issue appears to be that of causation", prior to the expression of some doubt as to severity after seeing the video. 172 Dr Bowles, as stated, was plainly affected by his belief that the plaintiff "had changed his story to suit," a view I do not share, but nonetheless apparently considered the plaintiff was not malingering. 173 Finally, Dr Silbert apparently considered the plaintiff's symptoms had become related more to stress brought on by litigation related factors. However, the doctor's treatment of the plaintiff was principally in relation to his headaches rather than for the difficulties referred to by Mr Thomas above, and in relation to those matters I would prefer the evidence of that doctor and the other doctors referred to who generally support his view. I accept, however, and indeed it seemed to me, as I have said, that the
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plaintiff was under some stress. In those circumstances he is likely to benefit from the end of the litigation. 174 I should add that although the three doctors called by the defendant made reference to the state of the plaintiff's hands it is the case that the plaintiff had been engaged in work of a manual kind for several years and nothing was put before me to show that was unlikely to be a cause or that there was some recognised medical basis for the views expressed as to such. 175 In any event, absent any claimed change or modification of opinion arising from a viewing of the video the observation in each case of the plaintiff's hands or upper musculature was not such as to prevent each of those doctors from expressing the view referred to, which to a greater or lesser extent provided some support for the plaintiff's symptoms. 176 As to the extent of the plaintiff's symptoms, and restrictions on his ability to work, I accept such are at present as described by the plaintiff but consider it is likely that the plaintiff will be capable of full-time work in the near future, with the restrictions on work referred to by Dr Harper, having regard to the medical views referred to, including those of Dr Silbert in relation to the likely diminution of stress. 177 As to causation, I accept the views of the plaintiff's doctors that the principal cause of his injury is the motor vehicle accident. 178 In that regard I accept Mr Thomas' opinion that the plaintiff's degenerative change shown in radiographs is not significant, and Dr Harper's view, expressly agreed to by Dr Flahive, that there is a poor correlation between degenerative disc disease and neck pain. 179 Dr Saunders' opinion that the plaintiff's early playing of soccer was the cause of the degenerative change I would discount, given apart from anything else the absence of any other support for it. 180 The plaintiff had no symptoms of any kind prior to the accident, and has never been symptom free since, suffering an exacerbation of the symptoms as a result of the relatively minor ladder incident, which would not have occurred but for the motor vehicle accident. 181 The doctors who support the accident as the principal cause of the plaintiff's symptoms largely support the proposition that the injury was of a soft tissue kind, whilst Dr Adonis and Dr Silbert consider there are also psychological symptoms of anxiety and depression.
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182 Neither Dr Flahive nor Dr Bowles was prepared to accept any causal link.
183 I have set out at some length what I understand to be the principal views of each in that respect above and it is not necessary for me to recapitulate the same. 184 Leaving aside any other consideration, one difficulty in relation to the evidence of each doctor is that the expressed views were said to be based on particular literature, and none of the relevant material was identified, canvassed with those doctors called by the plaintiff who held a different view, or produced or explained in any detail in the evidence of the doctor. 185 The contrary views put forward by the doctors relied upon by the plaintiff would appear to accord with conventional medical opinion. Such also accord with ordinary human experience. 186 Further, in addition to my earlier findings, and as appears above, it seems to me there is an inconsistency between the first two reports of Dr Flahive whilst one reference to studies was shown to be of those with an extremely limited ambit, and I also found his consideration of the question of degenerative change in his post review report of July 2004 somewhat less than straightforward. 187 I have already sufficiently set out my views in relation to the evidence of Dr Bowles. 188 I prefer the evidence that the injury is of a soft tissue kind, caused by the motor vehicle accident, and that although there was an exacerbation brought about by the ladder incident the original injury continues to be the principal cause of the plaintiff's symptoms.
Damages 189 The relevant heads of damage and my findings are:
• Non-pecuniary loss 190 The plaintiff's damages under this head must be assessed pursuant to the Motor Vehicle (Third Party Insurance) Act 1943 (WA) s 3C, and I would follow my understanding of the correct approach set out in Kandic v Kandic, unreported; DCt of WA; Library No 5208; 20 December 1996. 191 The present maximum allowance is $257,000.
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192 I would assess the sum of $30,840 as being the appropriate proportion of the maximum amount.
193 The statute requires a sum of $13,000 to be deducted and that results in an allowance of $17,840.
• Special damages 194 I was told by counsel that if the defendant was found liable for damages beyond February 2001 an amount of $6,000 for past treatment and travel expenses had been agreed and I allow that sum.
• Past loss of economic capacity 195 The plaintiff as stated said he sought but did not find suitable regular work until June 2004 when he commenced with Osborne Park Electrics, and I accept that. 196 Although the defendant sought to allege there was a failure to mitigate there was no plea of that in the defence: see Thomas v O'Shea (1989) A Tort Rep 80-251. 197 Following closing submissions the plaintiff put forward schedules as to the loss claimed under each head. 198 Although the defendant joined issue as to the plaintiff's ability to claim such a loss, there was no issue raised as to the calculation in any case and I will therefore, with any necessary adjustment, adopt the same. 199 I will also adopt $981 per week gross as representative of the sum an electrician might reasonably expect to earn in full-time employment, that being derived from material put forward by the defendant in a letter of 4 August 2004 from Labournet, and utilised by the plaintiff, albeit with a lower net figure of $745 per week. 200 The plaintiff's apprenticeship ended early, and the plaintiff claims a loss between 10 April and 16 September 2003 based on his average earnings as an apprenticeship, to a net total of $9,083. 201 For the next period, to the start of trial, 10 August 2004, the plaintiff claims a loss based on the net weekly figure less actual earnings, to a total of $32,148. 202 I allow each of those sums.
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203 Between 11 August 2004 and 9 February 2005, a period of 26 weeks, utilising the weekly loss claimed of $423 net, I allow the sum of $10,998.
204 The allowance under this head is then $52,229.
• Interest on past loss of economic capacity 205 Interest is claimed at a half rate of 4 per centum per annum on the loss from the commencement of the same, and it is not suggested that is unreasonable. 206 The High Court said many years ago that a calculation of this kind ought be as simple as possible and to achieve that I allow interest from 10 April 2003 at 4 per centum per annum on $52,229, which gives an allowance of $3,823.
• Loss of future economic capacity 207 Given the plaintiff's relatively young age and the brevity of his time in employment as an electrician, together with the uncertainty surrounding that, in my view a relatively broad approach is preferable, and the most appropriate is that set out in the judgment of the Chief Justice in Bowen v Tutte (1990) A Tort Rep 81-043. 208 Doing the best I can I consider the plaintiff's loss under this head ought be assessed on the basis that he has lost 30 per cent of his pre-accident earning capacity. 209 In that regard I consider that the plaintiff will improve to some extent once the stress of the litigation has ended, in the absence of any evidence as to his psychological state to contrary effect, and will be able to work full-time in the future. 210 The particular functional difficulties identified by Dr Harper and the other doctors are, however, likely to remain at a significant level in the future, as those doctors have prognosticated. 211 The effect of that will be to significantly impair the plaintiff as an electrician, and to require him to avoid certain types of work. 212 Whether the plaintiff will be able to have regular employment as an electrician of a kind which permits him to do that or whether he will be obliged to seek alternative employment remains to be seen, for the reasons given.
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213 In that regard the task of a court is not to make a finding on balance of probabilities but rather to assess a loss in a way which reflects the various possibilities: Malec v J C Hutton Pty Ltd (1990) 169 CLR 638.
214 An appropriate multiplier is 776, and a loss of 30 per cent of the net weekly wage of $745 produces a sum of $173,436. 215 From that there ought be a deduction of 5 per cent to reflect the "usual" contingencies: Black v Motor Vehicle Insurance Trust [1986] WAR 32. 216 The allowance under this head is then $164,764.
• Future medical expenses 217 The plaintiff is not symptom free and is likely to require further medical supervision and treatment. An allowance of $3,000 is sought under this head and that in my view is reasonable and I award it. 218 In summary:
Non-pecuniary loss $ 17,840 Special damages $ 6,000 Past loss of economic capacity $ 52,229 Interest on past loss of economic capacity $ 3,823 Future loss of economic capacity $164,764 Future medical expenses $ 3,000 Total $247,656 219 The plaintiff is entitled to judgment in the sum of $247,656.
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