Foti v Wilhelm No. DCCIV-99-938

FOTI v WILHELM
[2000] SADC 87

Judge Herriman
Civil

INTRODUCTION

The plaintiff sues for damages for personal injury allegedly caused him by the negligent driving of the defendant at Findon on 19 October 1996.
On that day, the plaintiff was driving his motorcycle, with a pillion passenger, in a northerly direction along Findon Road and approaching the intersection of that road with Crittenden Road and Balcombe Avenue, when the defendant’s motor vehicle, travelling south along Findon Road, turned across his path to travel west into Balcombe Avenue. When it appeared a collision was inevitable, the plaintiff and his passenger were able to jump off the motorcycle, which fell on its side and came to rest in front of the defendant’s vehicle and in the northbound carriageway of Findon Road (“the accident”).
In consequence, the plaintiff says, he suffered injuries to his lower back, both legs (mainly in his right ankle and knee) and his left wrist. He was taken by ambulance to the Queen Elizabeth Hospital, but was discharged on the same day.
At the time, the plaintiff was employed as a packer and driver at the Pooraka Fruit and Vegetable Market. In consequence of his injuries, he was off work for some three weeks and it is common ground that he then resumed, albeit on light duties. At a time which was uncertain, he returned to his normal duties, but on 21 February 1997 he ceased work and, apart from some brief attempts at resumption, has not since returned to any income-producing occupation.
He says this has been principally because of severe lower back and leg pain and occasional headaches and neck stiffness, and that these problems are attributable to the accident. Further, he says that in consequence of his injuries, he suffers from chronic pain syndrome, a chronic reactive anxiety stress disorder and gastric problems consequent upon prescribed medication. Further, he complains that the injuries have imposed certain limitations on his domestic, recreational and social life. I shall discuss these in due course.
In her defence, the defendant denies liability for the accident, alternatively alleges contributory negligence by the plaintiff and otherwise contends that:

(1)... the plaintiff has not suffered from any of the injuries allegedly sustained in the accident since at least 21 February 1997; or

in the alternative, if he has continued to suffer from the alleged problems since then, they have resulted from a degenerative condition of his spine which predated the accident; alternatively, from an incident or incidents at work immediately prior to 21 February 1997 when he injured his back; or from a combination of those factors.

EVIDENCE AS TO LIABILITY

I have already discussed the circumstances of the accident in brief. It is clear, and defence counsel readily conceded, that the preponderance of blame must fall upon the defendant. She was under an obligation to stand and yield right-of-way to the plaintiff’s motorcycle and she failed to do that.
The question at trial was the extent to which the plaintiff’s damages ought to be reduced on account of any contributory negligence on his part.
The geographical layout of the intersection and the relative positions of the parties immediately after the incident were not much disputed.

The Plaintiff

On the plaintiff’s account, he was travelling north along the inside of two northbound lanes in Findon Road. He was on his own motorcycle and was carrying a pillion passenger, the witness Shant Ingilizian. The intersection is irregular in that Balcombe Avenue enters it from the west at 90 degrees and Crittenden Road from the east at an acute angle. It is controlled by traffic lights, but they were green in his favour at relevant times. He believed there was a car travelling in the same direction and a “fair way” ahead of him (p.35), but he was not able to otherwise shed much light on the position, speed or movements of that car.
In examination-in-chief, he said that he noticed a red car approaching the intersection from the opposite direction on Findon Road, that it simply then turned across his path, heading into Balcombe Avenue, and stopped. He said this turning manoeuvre happened when he was “Right in front of her” (p.36) and there was no evasive action he could take. He simply jumped off his motorcycle to the left, as, indeed, did his passenger. The bike slid on its side and came to rest beneath the front bumper of the red vehicle, which was driven by the defendant. Not surprisingly, the plaintiff was unable to give a very clear account of what happened to him after stepping off the motorcycle, save to say that he came to rest in the intersection in a position he described as being to the left of the defendant’s car. He then saw petrol coming out of the motorcycle tank onto the roadway and he also saw that his pillion passenger was standing up nearby. He quickly moved off the roadway and then saw the defendant reverse her vehicle. In doing so, she drove over part of the motorcycle. She then drove forward and passed over part of it again. She proceeded into Balcombe Avenue, to a house about 100 metres away. The plaintiff followed her and attempted to speak to her and to another person there. At this point it is pertinent to record that the defendant is a deaf mute.
Under cross-examination, the plaintiff placed his speed at between 55 and 60 kilometres per hour at relevant times, and said that he had not slowed down as he approached the intersection and that the defendant’s manoeuvre occurred too quickly for him to do anything about it.
He was asked when he first saw the defendant’s vehicle and he said that it was when she was turning and was “right in front of me” (p.40). He could not remember whether the car was indicating a right-hand turn. On further cross‑examination, it first appeared he could not recall seeing how the defendant’s vehicle approached the intersection or, indeed, whether he saw it at all. Then he said he remembered seeing it approach, at some point stopping, and then seeing it attempt to cross his path. It must be said that his evidence as to where the car was at times prior to the moment when a collision was inevitable, was vague and uncertain. At page 44:
“A...... No - no, I saw the car. I see the car, it’s coming, that’s what’s in front of me but she just turned right in front of me, it was just too quick so -
Q.I’ve asked those questions before. Did you see the defendant’s car before you entered the intersection.
A....... I told you I did. I saw a red car coming towards me. I said that.
Q.When you say ‘coming towards’ you mean cutting across -
A....... Coming my way. You can see the cars on the other side of the road, which cars are coming towards you, to pass you. That’s what I’m saying; I could see the car but I didn’t know that she was going to turn out in front of me, you know, because I can’t even remember if she had her blinker on or not.
Q.When did you first see the defendant’s car.
A....... When it was in front of me, on the other side of the lane but I didn’t have no intentions that she was going to cut out in front of me. Because she turned too quick.
Q.How far back do you think you were from the intersection.
A....... That I can’t recall.
Q.When you - let me finish the question. How far back from the intersection were you, do you think, when you first saw her car.
A....... Probably a fair way back. I could see the cars on the other side of the road.
Q.Was the defendant’s car travelling towards you or was it stationary.
A....... Travelling.
Q.Did you see it stop.
A....... No.
Q.Are you suggesting it turned straight across -
A....... Straight in front of me, yes.
Q.So is this your position now that you had this vehicle in view the whole time that you were driving north along Findon Road and you saw the defendant’s car come up to the intersection and just turn right in front of you.
A....... Yes.”
He was, however, confident that he had been travelling in the inside lane at all relevant times as he came to the intersection and that there were no parked cars in that lane. He agreed that there was a right-hand turn lane for vehicles following the course taken by the defendant, but said there was no special right-hand turn arrow. He said he did not contemplate turning right to avoid the collision because of other traffic and said that he did not have time to do that, anyway. Otherwise, the defendant’s car was blocking his passage through the intersection. He was challenged that, as he approached the intersection, he may have been travelling in the outside lane of Findon Road behind another vehicle and that he had then moved into the inside lane to pass that car. He denied that. He was confident he had remained in the inside lane.

Mr Ingilizian

Mr Ingilizian then gave evidence and I was generally impressed with his presentation and demeanour. He appeared to do his best to recall events, showed no overt bias in favour of the plaintiff and was not prepared to speculate about what might have happened. He was firm in his recollection that the motorcycle had remained in the inside lane of Findon Road for as many as 300 metres prior to the intersection and that it was travelling at between 50 and 60 kilometres per hour. He did not see the defendant during the complete turn she made, but he recalled seeing her when her vehicle was “halfway through a turn and she just came to a complete stop in the middle of the intersection” (p.141). He described how they both stepped off the bike as there was “nowhere to go”. He said that the defendant did not get out of the car and he was not sure whether she reversed her car, but she went forwards and then backwards and drove off, passing over the motorcycle. He saw the plaintiff limping or hopping off down the road towards the direction of the vehicle. At the time the defendant’s vehicle became stationary, it was occupying the centre of the northbound carriageway and it was only slightly off a direct line into Balcombe Avenue. He did not recall seeing any other vehicle travelling in the same direction as theirs, but in the outside lane.
He was tested in cross-examination about why he did not see the defendant’s vehicle earlier, but he said he could not remember in which way he was looking and I keep in mind, in that context, that he was sitting behind the plaintiff and that his view of the roadway ahead might, indeed, have been limited by the plaintiff’s position. He denied that the motorcycle moved from the outside to the inside lane at any time. He was not able to say whether the defendant’s vehicle had an indicator operating. He said that at the time he and the plaintiff jumped off the motorcycle, they were:
“very close. We were practically kissing the car. That’s the only reason why we jumped off because we were going to hit” (p.148).

He could not estimate that distance.

He was tested, as was Mr Foti, as to their relative positions on or near the roadway after they dismounted, but neither could give a particularly clear account of that, nor do I think I would have been much assisted by it, anyway.

The Defendant

The defendant gave evidence through an interpreter. She is 33 years old and married with two children. She said she was intending to visit her sister in Balcombe Avenue on the day of the accident. She was travelling south along Findon Road and intending to make a right-hand turn at the subject intersection. There are two southbound lanes. Her three-year-old daughter was in the back seat of the car. She approached the intersection at a speed of about 60 kilometres per hour and put her right-hand-turn indicator on as she approached it. The traffic lights were green and she:
“looked down the road to see that it was clear, and I just moved out a little further into the intersection because in - there was a car coming that wanted to turn into Crittenden Road in front of me, turning right from the way they were travelling. So I then checked further and it was all clear so then I turned into Balcombe Avenue, and that’s where the accident happened” (p.609).
Apart from the car that was intending to turn right, she did not see any other vehicles around the intersection; in particular, she did not see the plaintiff’s motorcycle. She first stopped at the intersection before completing her turn and then stopped when the accident happened. She thought she was halfway into a turn when that occurred. She felt the impact and saw a man standing up to her right. On all the evidence, it was likely that this was the plaintiff and she described his face as “angry”. She said she was scared, so she decided to reverse her car and go around and park in Balcombe Avenue. She said she did that and then went looking for the man, but could not see where he was. She felt she needed help, so she went to her sister’s home, which was three houses further down. It was then that the plaintiff came chasing after her. She enlisted the aid of her brother-in-law and then went back to the scene.
She could not put any estimate on the speed of the motorcycle because she had not seen it before the collision, but said it collided with the left front of her car near the indicator. She was not aware she had driven over the motorcycle afterwards and did not feel any bump.

THE PLAINTIFF’S PERSONAL, INJURY AND TREATMENT HISTORY

The plaintiff is a 31-year-old male, married with an 18-month-old son. He was educated at high school to Year 9 level. He was not particularly interested in school work and, immediately after leaving, went to work in a garage, where he remained for two years. He had previously carried out part-time work there, serving fuel and assisting employed mechanics. From that position, he went to the East End Market, where he worked for a number of employers, packing, moving and delivering fruit and vegetables. At a manual level, that involved handling cartons weighing up to about 13 kilograms, general driving duties and, in particular, fork-lift work moving pallets of stock.
From there, the plaintiff went into the business of car detailing and operated that business for a short while, before seeking employment in the same area with Australian Motors. He left there in December 1994 and then returned to the fruit and vegetable market, which was, by that time, situated at Pooraka. He resumed work duties of the kind he had previously performed at the East End Market and continued there until he ceased work in February 1997.
As I have noted, when the accident was inevitable, the plaintiff, in effect, stepped off his motor bike before it came into contact with the defendant’s car. He recalled becoming aware that he was lying on the roadway to the left side of the car (as he described it) so he scrambled off, retreating to the northern corner of Balcombe Avenue. It was at that point that he saw the defendant drive off from the scene, to premises further along Balcombe Avenue. He said he followed her there on foot, a distance of about 100 metres. He had difficulty doing that because of his leg soreness and later, when he returned to the scene, his left leg gave way on him.
He said that he became aware, at the scene, of soreness in his left leg, knee and ankle, back, neck, shoulder, thumb and wrist, but did not recall whether he then complained of it.

The Queen Elizabeth Hospital

He was conveyed by ambulance to the Queen Elizabeth Hospital. He said that, at the time, he felt pain in his whole body and told staff there that his back was stiff and sore. On being pressed over that, he described the condition of his back at that time as “very sore” in the lower region. It was painful to touch and it felt like something had broken inside. He could not remember whether any movement, flexion or extension tests were undertaken there (p.54).
The hospital notes on examination (D1) are then of some importance. In the opinion of medical specialists who were later called, the examination described in those notes appeared to have been a comprehensive one and, inter alia, they recorded “Fell off bike on L side and now has sore L foot. Able to mobilise without any problems”. His back was observed to have a full range of movement, albeit that it was slightly stiff; no abnormalities were detected in his neck, gait, right upper limb or right leg, but there was bruising and swelling in his left foot. In the discharge letter, the diagnosis was described as “soft tissue injury L. foot”.

The Ambulance Officers

The ambulance officers’ report was also attached to the Queen Elizabeth Hospital notes and recorded that the plaintiff had complained of “pain to bridge of L foot”.
He said his back continued to be very sore when he got home; indeed, it was this that he felt the most.

Dr Humphreys

The accident had occurred on a Saturday and on Monday, 21 October 1996, the plaintiff consulted his general practitioner, Dr D Humphreys. On his own account, he then had two general practitioners, Dr Humphreys and Dr G Vinci, who were from different practices. On this occasion, as Dr Vinci was not available, he elected to see Dr Humphreys.
Dr Humphreys was called, and identified and referred to his notes, which were tendered (P6). He said that the plaintiff had seen him on a number of prior occasions and he had records of consultations dating back to 1985. There was a note of the plaintiff suffering a back injury at work in 1990 as a result of lifting a sack of potatoes. He was then 21 years old. There was another reference to a back sprain at the age of 16, which had caused several months’ discomfort, and there was a reference to a lower back sprain in 1991. There was then no further mention of any back injury until 10 January 1994, when the plaintiff complained “of a little bit of aching in the lower lumbar area in mornings, stiffness in the mornings and this was not related to any particular injury or episode or incident.” Dr Humphreys then recommended he try an anti-inflammatory medication, Naprosyn.
Again, on 17 May 1994 Dr Humphreys recorded a complaint of back discomfort: “morning stiffness, physio no help, anti-inflammatory has been tried” (p.261).
At an attendance on 22 May 1995, the plaintiff complained of pain or discomfort in the neck, present over several months. At that time, Dr Humphreys recommended trialing the anti-inflammatory Nurofen and possibly using Mersyndol to relieve pain. The notes then recorded that the plaintiff had had a motor vehicle accident on 26 May 1995, but they contained no further complaint of back pain until after 21 October 1996.
- the first consultation with Dr Humphreys
The history given by the plaintiff to him on 21 October 1996 included a brief description of the accident and the following complaints or observations:

-       abrasions to the left forearm;
-      sprain to the left foot and leg, possibly a toe joint;
-       jarred left lower lumbar spine;
-       both calves aching;
-       sprained left thumb;
-       swollen left foot and tendon tenderness;
-       stiff neck movements.

Dr Humphreys noted that the plaintiff’s then work involved lifting and fork-lift driving. He considered that the plaintiff could not return to work immediately, so he gave him a sickness certificate and recommended he use Naprosyn.

His notes of that first consultation also contained a drawing indicating that the symptoms of which the plaintiff complained were over the lower lumbar area and left buttock. He said his practice was not to immediately seek x-rays unless there was a complaint of severe sciatica and he generally looked first at symptomatic relief to see what effect it had.
- the second consultation with Dr Humphreys

Dr Humphreys’ first sickness certificate extended to 4 November 1996, but he saw the plaintiff again on 1 November. He then recorded that the plaintiff was “slowly improving”, in particular to the upper part of his left lower leg; otherwise, that his foot, thumb and lumbar spine were “all improving”. He commented that no special therapy was recommended, but advised time and convalescence with hot baths. He proposed a return to work on 11 November.
- the return to work

Although the precise date of the plaintiff’s return to work was not established, on his own account he missed some three weeks and other evidence is consistent with a return on about 11 November 1996.

On the plaintiff’s own account, after he returned to work he continued to experience problems with his lower back, legs and shoulders. He had pain in both legs, although the left was worse than the right, his lower back was painful and his upper back was sore. He said he attempted to manage the pain at work. He was given light duties, involving sweeping and fork-lift and van driving. He said the pain became worse at the end of each day.
- the third consultation with Dr Humphreys

He next saw Dr Humphreys on 12 December 1996, and the notes record that he had by then returned to work on light duties. His knee was then “not too bad”, but he still had tenderness at the base of his left thumb. His left wrist was still slightly tender, he was still having flashbacks relating to the accident and his knee was clicking, albeit with no pain or swelling. He complained of back soreness in the lower lumbar spine. Once again, the notes contained a drawing which located most of that soreness above the left buttock, extending slightly into the right buttock. The plaintiff’s neck and head were “OK”.
Dr Humphreys tested the plaintiff’s back and noted it was sore on full extension, that lateral flexion was “OK”, although he was “sometimes waking up uncomfortable”.
At trial, there was some criticism of Dr Humphreys’ examination on that occasion, in that it recorded no test of forward spinal flexion. The plaintiff argued that had such a test been undertaken, it would undoubtedly have disclosed the existence of symptoms consistent with the continuation of his back pain and disability.
Dr Humphreys was examined closely on this matter. He said that it was his invariable practice, when examining a complaint of back pain, to test forward extension and flexion. He thought it was probable that in this instance he had, indeed, tested forward flexion, but had simply failed to record it. Furthermore, he said that had forward flexion produced any symptoms, he would have recorded them (p.275). Other medical comment appeared to support this claim, inferring that it would be quite anomalous not to undertake such a test in the circumstances.
I return, then, to the plaintiff’s account of events. He said he continued on light duties until the end of January 1997 and, although he had no specific treatment from Dr Humphreys in the meantime, nor any physiotherapy, he saw him again before he resumed normal duties in February 1997.
- the fourth consultation with Dr Humphreys

Dr Humphreys again saw the plaintiff on 28 January 1997. A section of his notes is incomplete, but, inter alia, they record that punching would hurt the plaintiff’s left wrist, that his normal work was “okay”, that his left thumb was still sore after eight hours’ work and his low back “fluctuates” . There is then a reference to the plaintiff being “still nervous” about motor bike riding and there is also a reference to “boxing”. Whether the claimed nervous condition related to boxing as well is not clear, but the word “boxing” precedes “motor bike riding”. There is also a reference to the plaintiff suffering occasional sleep disturbances.
In evidence, Dr Humphreys affirmed the history, observations and conclusions set out in his notes. He was unable to throw any more light on the references to punching and boxing (p.271) in the fourth consultation, and they remained curiously unanswered during the course of the hearing. The plaintiff was asked during cross-examination whether he had engaged in boxing prior to the accident or in 1996 or 1997, but he denied it, saying that he had boxed when he was about 13, but not since (p.234).
Dr Humphreys said that when he had referred to “normal work” in his note of 28 January 1997, he had assumed it meant light work because he had previously prescribed light duties and had not recorded any change in that.
Pertinent to that consultation, he was asked (at p.273):
“Q... At that stage - I think this is at 28 January 1997 - you were still hopeful of a full recovery, were you.
A.I was.
Q.... There was nothing in his presentation, including the suggestion of a numb toe, that in any way suggested a disc problem to you.
A.No, at that stage I was not suspicious.”

He did not think the suggestion of a numb toe had any particular implications. Generally, he did not think that any of the symptoms he had seen from the accident were indicative of any disc injury and he was confident that, after the plaintiff’s resumption of work duties, he had received no complaint of problems at work.

- his report of 1/2/97

On 1 February 1997, at a time prior to the plaintiff’s retirement from work, Dr Humphreys had written a report to SGIC (P16). He agreed that his recollection of events was more reliable at that time than it was at trial. In that report, he observed gradual improvement in all complaints and recorded his opinion that the plaintiff had suffered a sprained lumbar spine in the accident. He had then anticipated an ongoing recovery of all symptoms and had said that no specific treatments were planned; rather, that he was “awaiting spontaneous natural resolution of soft tissue injuries”. He did not then expect there would be a permanent residual disability.
It would appear that Dr Humphreys did not see the plaintiff again after 28 January 1997.

The SGIC Report and Claim

At this stage, the plaintiff had already informed the defendant’s insurer of his intention to bring a claim in respect of injuries suffered in the accident, having completed a report and claim form on about 24 October 1996.
The report and claim form (P21) was tendered and in it the plaintiff had described his injuries variously as follows:
paragraph 17 - “sprained toe, left side leg and side injuries”;
paragraph 26 - “sprained toe, muscular pain in whole left side and back”.

He had then authorised SGIC to obtain a report from Dr Humphreys, hence the document P6 to which I have referred.

Dr Fantasia

Going back in time to the period during which the plaintiff was seeing Dr Humphreys, it appears that on 31 December 1996 the plaintiff had seen Dr Fantasia, a locum/assistant of Dr Vinci, concerning a twisting injury to his right foot, sustained at work when he was getting off a fork-lift on the previous day. The relevant consultation note, which was read into the transcript by agreement, recorded further that the plaintiff was then “unable to weight bear”.

EVENTS SURROUNDING 21 FEBRUARY 1997

The Plaintiff’s Account

On the plaintiff’s account, he resumed normal duties at the Market in early February 1997. Elsewhere, he said he thought that this occurred when another employee, Mr Medhurst, left employment, a date separately identified by that person as being in early to mid‑January 1997, albeit that Mr Medhurst was not sure of the exact date (p.546).
The plaintiff said that, in any event, over the entire period after he had resumed work in November 1996, he had been experiencing continuing and increasing back pain at work, such that he decided to cease work altogether on 21 February. He said that in consequence of the pain, he called Dr Vinci on a home visit on 23 February. In cross‑examination, he said he could not remember whether he mentioned the accident to Dr Vinci on that occasion, nor could he remember whether Dr Vinci later took a long history from him in April 1998 (p.547).

Dr Vinci’s first consultation after 21/2/97

At this point, it is instructive to return to Dr Vinci’s evidence and his reports. He said that when he saw the plaintiff on 23 February at home, Mr Foti complained of back pain, worse with bending, and pain in one of his legs, a pain which Dr Vinci thought to be sciatic. Mr Foti told him that the pain had been gradually worsening over about a week, “that he thought he had pulled a muscle, that he had been doing fairly heavy work with lots of lifting and it was bothering him to a great degree and it started gradually with bending and that it was difficult for him to straighten from a flexed position”. The plaintiff did not describe to him any particular incident which caused the pain, but on what had been told to him, he had thought the plaintiff had suffered a back injury during his last week at work. In those circumstances, he had thought it appropriate to send the plaintiff for a CT scan (p.241).
In cross-examination, Dr Vinci was asked to read out his notes of that first consultation. They were substantially to the same effect as his evidence and they made no mention of the accident. Dr Vinci thought it likely that had the plaintiff told him of consulting Dr Humphreys about a back problem, he would have noted that and checked with Dr Humphreys for particulars of treatment and diagnostic material. On all the evidence, I find I am satisfied that the plaintiff did not, at that consultation, tell Dr Vinci of any previous back injury, of the accident, or of his previous consultations with Dr Humphreys about it. It is apparent, on all the evidence, that Dr Vinci first learned of the accident from Mr Munyard’s report to him of 3 March 1997, which said the plaintiff had had a sore back and left side, a three-week absence from work and a “few niggles in his back” (p.239).
I should add here that Mrs Foti also spoke of being present at this consultation and said she could not recollect her husband then telling Dr Vinci of the accident.

Mr Khera

At all events, the CT scan was promptly obtained, on 24 February 1997, and disclosed what Dr Vinci interpreted as one or two disc lesions. He thought the finding important enough to refer the plaintiff to Mr Khera, a neurosurgeon, and the plaintiff saw Mr Khera on that same day. In his referral letter, Dr Vinci informed Mr Khera that the plaintiff had “injured his back at work with gradual onset of low back pain and sciatica” (D18).
Mr Khera took a history from the plaintiff that whilst “doing normal work, he was lifting things, felt lower back pain and carried on working; thus worked slowly and saw Dr Vinci ...” (p.595). The complaint made to him was of pain in the lower back, the right gluteal region and down the right leg into the foot, with associated tingling (it should be noted that the plaintiff had also described right-sided sciatic pain to Dr Vinci - in contrast to the largely left‑sided pain of which he complained to Dr Humphreys following the accident).
Returning to Mr Khera, he said he asked the plaintiff whether he had previously suffered any “significant back injuries”, but the plaintiff said no. (I note here that the plaintiff’s wife was present during this part of the consultation.) Mr Khera then undertook an examination of the plaintiff in a separate room and in the absence of Mrs Foti. He said that upon completing that, they returned to the consulting room and the plaintiff’s wife, and it was then that the plaintiff told him that he had been involved in a motor bike accident in 1996 and that he had had various bruises, but no serious injuries. He said there was no mention made by the plaintiff of any back injury.
At that point, Mr Khera looked at the CT scan, noted a disc protrusion at L4‑5 and recommended that the plaintiff continue with the Voltaren he was then taking.
Mr Khera’s opinion, at that time, was that the plaintiff had sustained an injury at work, that he had a disc protrusion, that it was significant and it explained the symptoms of which he was complaining. He did not consider at that point that further treatment was indicated, apart from rest and a review of the plaintiff at a later time. Accordingly, he recommended in those terms to Dr Vinci.
- the accounts of the plaintiff and Mrs Foti concerning the Khera consultation

It is important at this stage to note that, on the plaintiff’s evidence, he went to that single consultation with Mr Khera in the company of his wife. During the history-taking process and prior to the examination, he said he asked Mr Khera if he (Khera) considered the accident was connected with his back injury and Mr Khera replied: “No, no, no, no, no”. He complained of Mr Khera’s attention to his problems, saying he spent only 10 or 20 minutes with him and that he would not let Mrs Foti come into the examination room. He suggested that Mr Khera was not listening to him, but looking at the x-rays whilst they were talking.
Mrs Foti also gave evidence on this matter, echoing a similar complaint about Mr Khera’s general interest and, in particular, saying that her husband asked Mr Khera “Has this (the accident) got anything to do with my pain at the moment or my injury at the moment?”, whereupon Mr Khera replied “No, no, no, no”. In cross-examination, Mrs Foti denied having recently discussed the circumstances of that interview with her husband, but said she had spoken to him about it within the last six months. She said her husband did not go back to Mr Khera because he “just wasn’t very nice to us ... he wasn’t really interested”. Mrs Foti, herself, was not able to say whether her husband had informed Mr Khera that his back condition had deteriorated since the time of the accident, although she agreed this would have been an important disclosure, nor was she able to remember her husband’s description to Mr Khera of the circumstances of his injury at work. She was asked whether Mr Khera asked her husband about any back injury prior to February 1997. She could not remember that, nor could she remember whether her husband had replied that there had been nothing of any significance.
She readily agreed that she had read the report obtained by SGIC from Dr Humphreys (P16) and had not challenged Dr Humphrey’s claim that her husband’s condition had been improving over the period since the accident, despite her own evidence, in court, that it had not.
She agreed she had processed her husband’s WorkCover claim in the sense of handling documents and in that context had seen Mr Khera’s report, but they had not challenged his comments about the significance of the accident.
She said she did not remember Mr Munyard’s opinion about its significance, but, when shown his report containing his observation that the plaintiff had not had any problems with his back before he injured it on a specific date in February 1997, she agreed she had known at the time of the compensation claim that that was incorrect, but had not rung the workers’ compensation insurer to inform it of that fact, because she did not know she had to. It also became apparent from her evidence that she was familiar with Mr Munyard’s report and WorkCover’s reliance on it.
She was challenged generally on what was disclosed about the accident to those doctors concerned in the worker’s compensation claim and she said, by way of a broad response, that “The doctor has got to ask questions for you to answer them”.

The Referral to Mr Munyard

Following his consultation with Mr Khera, the plaintiff informed Dr Vinci that he wanted a second opinion, so he was referred to Mr Munyard, whom he saw on 27 February 1997.
According to Mr Munyard, the history the plaintiff then provided was that, on the previous Friday at work, he felt he had pulled a muscle in his back, but had kept on working, that the situation had become worse over the weekend and that he had then seen his general practitioner and had a CT scan. The plaintiff had complained to him of numbness in his right leg when driving, difficulty lying down, sleeping and sitting in chairs for a long period and pain in his right hip down to the outer side of his knee.
The plaintiff told him that he had had a motorcycle accident in the previous October and that his back had become sore when he landed on the road. He had also sustained injuries to his left side. He had returned to work after three weeks. In reporting to SGIC about those events on 13 March 1997 (P2), Mr Munyard commented:
“Since that time there had been some little discomfort from time to time in his back but the major problem had occurred on February the 27th (sic).
He stated that he had a past history of having problems with his back in 1991 when he had been lifting. He had physiotherapy treatment for it at the time.”

In reporting to the plaintiff’s solicitor some twelve months later, on 31 March 1998 (P3), Mr Munyard observed:

“After the three weeks off work he had gone back and had not had further trouble until the incident on 21/2/97.”

After reference to his notes, it was evident from what Mr Munyard said in evidence that the former was the more accurate description.

Ultimately, when he reported again to the plaintiff’s solicitor on 28 March 2000 (P5), Mr Munyard commented that the plaintiff had a residual disability of 15 per cent of the function of his lumbar spine and he considered the accident had caused an annular tear at L5-S1 and had “certainly aggravated the previous degenerative changes”.
In evidence, Mr Munyard spoke of the process of degeneration evident from the MRI scan. He was of the view that the level of the plaintiff’s disability was actually greater than 15 per cent, “but I think you have to take into account the fact that there’s a motor vehicle accident, there’s a history of injury to his back at work, and further information suggests that he’s had trouble with his back in the past as well, which he didn’t tell me the first time I saw him” (p.60). He said he thought the annular tear had been caused by trauma and the accident was a likely culprit. Later, he said (at p.61):
“I don’t think his motor vehicle accident is the sole cause of his problems. The fact that he had an MRI which is abnormal at more than one level suggests that there’s trouble there and the motor vehicle accident has aggravated it, yes. The work injury is another factor in it. I mean the fact that he had trouble with his back some years ago suggests that this is not just a single incident.”
He was not prepared to say that the accident was the prime or major cause, but thought that the pre-existing spinal degeneration, the injury at work and the accident had all contributed. He thought that the accident represented about half of that contribution. He thought it was reasonable that the plaintiff could no longer do any significant lifting and that he should not undertake any moderately heavy labouring duty, and that he was fit only for light work.
Under cross-examination, Mr Munyard agreed that, leaving the accident aside, the plaintiff then had a limited future in heavy labouring, anyway, because of his degenerative condition. He was not prepared to estimate for how long the plaintiff might have worked. He did not think that, when the plaintiff first saw him, he was necessarily complaining about a single incident, but he did believe, on what he was told, that it had developed “in the process of working”. That evidence did not accord with his report (P2), which appeared to identify a “major problem” occurring on “February 27th”. He conceded that when the initial history had been given to him, the accident had not been identified as causing the plaintiff much of a problem and it was what had occurred at work that had led to the consultation. Had a history then been given of the accident, with increasing back pain and afterwards eventual cessation of work, it would have indicated to him that the accident had caused a major injury, but that was not what he had been told.
When it was put to him that the history provided him was more indicative of a major problem occurring at work unrelated to the accident, he felt unable to be clear about that. He thought it unlikely an annular tear had arisen from work as that would suggest an identifiable incident and none such was identified. On the other hand, he agreed that if the symptoms of pins and needles or numbness had only emerged after 21 February and if straight leg raising had only been difficult after that time, then it suggested the major problem had occurred at work.

He was then referred to Dr Humphreys’ notes. He agreed that a history of the plaintiff resuming light duties and then normal duties by the end of January 1997, and taking part in leisure activities, was not consistent with any serious injury in the accident. He agreed that (boxing, motorcycle riding and sleep disturbances aside) the history given to Dr Humphreys was consistent with that first related to him in February 1997. Finally, it was put to him (p.76):
“Q...... ... when Mr Scragg asked you you attributed half of his problem to the motor vehicle accident. What I’m suggesting to you is that first of all, if you look at the whole history, that’s probably an optimistic view or sympathetic view.
A.It might be that, yes.
Q...... And that realistically he’s got the preexisting degenerative changes. The motor vehicle accident provided some aggravation to that, but the work has triggered it off.
A.Yes. The trouble is how much factor the work is is difficult to assess. I think that’s my difficulty in - you know, it only takes one straw to break a camel’s back and maybe that’s just enough to make it go the other way
........... ...
Q.That’s the problem with this case. If you look at the history the motor vehicle accident may not have contributed - may not have brought it forward very much at all. It may have happened anyway.
A....... Yes, it may have. Yes, but we don’t know whether it might have been ten years down the track or five or two or six months or three months. You don’t know, that’s the trouble.”
Mr Munyard was then referred to Mr Khera’s reports and the history provided to that doctor. Later, at p.81:
“Q...... It’s different - the plaintiff telling different doctors perhaps a similar story and interpretations can be different, I’m not trying to lay too much on that other than really the emphasis to both you and Mr Khera was that the motor vehicle accident was not a significant one and that the injury at work was. That’s the way the plaintiff was presenting to you.
A.Mr Khera doesn’t even mention the fact that - I suppose that’s ’96, I’m sorry, I’m a bit confused, right, okay, yes.”
The Queen Elizabeth Hospital notes were then put to him. He thought it was of some significance that the hospital had not required x-rays of the plaintiff’s back and then, at p.83:
“Q...... All of those factors rolled in together, that is lack of x-rays, lack of treatment, history of not placing much emphasis on the motor vehicle accident when he comes to see you or Mr Khera, does that indicate that the major injury - it was more likely that the major injury was the work one.
A.I think on that basis I think you’d have to suggest that, yes.”
He was asked whether there was any way of telling whether the annular tear, disclosed in the diagnostic material, had occurred before the accident but was asymptomatic. He said he could not say, but that it was possible the accident had done no more than aggravate a pre-existing tear.
He was then asked whether the absence of symptoms of numbness, pins and needles or anything to suggest nerve root involvement for up to three months after the accident, indicated that whatever occurred in the accident was of a minor nature. He said he agreed with that.
Ultimately, after cross-examination, Mr Munyard changed his previous opinion that the accident was responsible for 50 per cent of the plaintiff’s back problems. He came back to the position that it was likely that the degeneration, the accident and the work injury had all contributed equally.

Continuing with Dr Vinci

At all events, having received the advice of Messrs Khera and Munyard, Dr Vinci continued to see the plaintiff fortnightly and then at less frequent intervals as time went on. He was involved in attempts at rehabilitating the plaintiff, and an occupational therapist, Mr Anil Chawla, also took part in that. Ultimately, it was agreed by all that the plaintiff could not continue in his previous employment. Dr Vinci said that he had placed the plaintiff on analgesics and anti-inflammatory medication and it was possible that his gastritis condition had been caused by that. Later, in cross‑examination, he said he deferred to the view of a Dr Lidums, gastroenterologist, that the gastritis was the result of a disease and not related to the use of anti‑inflammatories. Dr Lidums was not called at the trial, but I am not satisfied, on the evidence available, that the anti-inflammatory medication caused the plaintiff’s condition of gastritis.
Dr Vinci’s ultimate view was that the plaintiff was not fit for moderate to heavy work and should not be lifting weights in excess of 4.5 kilograms. He saw the plaintiff as being frustrated and upset about his condition and his future. He did not think he was clinically depressed, but he displayed anxiety and frustration at his status.
Under cross-examination, Dr Vinci freely acknowledged that he had thought the plaintiff’s injury had arisen out of the activities he had undertaken in his last week of work and he agreed his opinion was similar to that expressed by Mr Khera in his report of 25 March 1997. He had, in fact, issued worker’s compensation certificates to the plaintiff thereafter.
Had he thought the injury had been related to the accident, he would have referred to it as a cause. Had he known of a history of symptoms extending over some months prior to February 1997, he would have mentioned them.
He had reported to WorkCover on 28 April 1997, describing the plaintiff’s injury as “lumbar disc injury with protrusion ... caused by ... bending and lifting at work”. By then, he had been aware of a previous back injury at work in 1991, a knee injury in 1992 and the circumstances of the accident, but he believed that the plaintiff had made a reasonable recovery from those events (p.251).
It was only in April 1998, that Dr Vinci took a detailed history from the plaintiff relating to the accident and that was in response to a request from the plaintiff’s solicitor for a report.
The results of that consultation are contained in his report to Mr Scragg of 28 April 1998 (P15). At page 2 of that document, he records the following, after discussing the circumstances of the accident:
“Mr. Foti returned to work after three weeks in his job as a forklift driver. He told me that during this time when back at work he continued with back and leg pains but he had continued to carry out his normal duties although he was suffering from this pain. Over a period of time his symptoms gradually worsened, as his work involved much lifting and bending which seemed to aggravate his back problems.”

In that report, he went on to describe the referrals he had made on the plaintiff’s behalf and he commented on its penultimate page as follows:

“In summary, Mr. Foti suffers from problems with his back following injury in a motor vehicle accident of October 19th 1996 at which time he fell from his bike ... He had further injury to his back as a result of his heavy work and repetitive bending and lifting. In the high speed fall from his motor bike it would seem that his back would have been subjected to quite significant forces and stresses of a nature sufficient to cause tearing of the annular ligament of the lumbar discs and thus lead to disc protrusion or herniation. I note that there were symptoms mentioned in his history during the time between his accident and the time at his work in February of 97 after which there was increased symptomatology. I believe that his symptoms are consistent with the stated cause.
In my opinion his back problems have several factors involved with the motor bike accident and injury to his back in October of 96 seeming to be the initiating factor and aggravation continuing in the course of his normal duties with his employer, as his work was of a heavy nature.”

Under cross-examination, Dr Vinci was asked (p.254):
“Q...... Did you understand that there may have been some inconsistency between what he was telling you in April of 1998 compared with what he had told you, Mr Khera and Mr Munyard.
A.It looks like there is some inconsistency. I wasn’t sure whether it was because I hadn’t asked particularly the history or whether it hadn’t been forthcoming.
Q...... Either way you weren’t told, is that right.
A.That’s right.
Q...... Up until April of 1998 you continued to issue medical certificates for WorkCover.
A.Yes.
Q...... On a regular basis.
A.Yes.
Q...... Relating his problems to the injury at work back in February of 1998 rather than the motor vehicle accident in 1996.
A.Yes.”

Dr Vinci further went on to say that he did work-site visits and attended case conferences on the plaintiff’s behalf in connection with his compensation claim. He acknowledged that the consultation in April 1998 was the first time he had been aware that Dr Humphreys had been involved in any treatment of the plaintiff and the first time that Mr Foti had described back problems going back to November 1996. He was asked (p.253):

“Q...... Had he always presented to you as if this back problem was all related to his work up until that time.
A.I think that was my understanding and as I’ve said before, the motor vehicle accident when I became aware of it, I thought it was something in the past that had occurred to him but wasn’t giving him a lot of trouble.”

He did not think he had otherwise seen any of the later reports of Dr Cullum, Mr Cornish and other specialists prior to recently when he had received a booklet of medical reports from solicitors, save and except for a report he had received directly from Dr Cullum on 17 March 1998. That report did not itself mention the accident.

Dr Vinci agreed that there were really two histories given to him, one in February 1997 and the later one in April 1998. Had he been given only the February 1997 history, “then that would presuppose that the motor vehicle accident wasn’t involved in the production of his symptoms” (p.259). Otherwise, he conceded that the first time the plaintiff provided him with a history of experiencing back symptoms between the accident and his cessation of work in February 1997 was in April 1998. His letter of referral to Dr Cullum in February 1998 asked that specialist to see the plaintiff about a back injury suffered at work ‘lifting boxes of bananas”.
I have gone into the above events in some detail because they clearly show that, whereas the plaintiff had consulted Dr Humphreys only about the accident and not after 28 January 1997, following his departure from work on 21 February 1997 he saw Drs Vinci, Khera and Munyard expressly concerning a lifting injury or injuries sustained at work and, to the extent the accident was mentioned to them at all at that early stage, it was not related by the plaintiff as having any particular significance. That is not to say that the plaintiff’s own view as to medical causation is determinative, but it is a matter which needs to be taken into account in the light of what followed.

Mr Cornish

Having obtained reports from Drs Humphreys, Khera and Munyard, SGIC referred the plaintiff to Mr B L Cornish, orthopaedic surgeon, for examination and report on 13 May 1997. He again saw that specialist on 8 October 1998 and two reports, of 14 May 1997 and 9 October 1998, became Exhibits D13 and D14.
In his initial consultation, Mr Cornish took a history of the accident which recorded, inter alia:
“He apparently continued to work normal hours for about 3 months but states that as the general soreness settled down he became increasingly troubled by low back pain. This led to the medical consultation with his local practitioner Dr Vinci and a CT ...
Physiotherapy was advised but after a period in which he failed to respond he was referred to the orthopaedic surgeon Mr Adrian Munyard ...
The present situation is that low back pain and right leg pain are Mr Foti’s main medical problems and he has been unable to resume work - having ceased on 21/2/97 ...
From the foregoing history as it was presented to me, then reading the reports attached to your letter, namely that of Mr Munyard dated 13/3/97 and that of Mr Kera dated 25/3/97, there is a marked difference in emphasis in regard to etiological factors - indeed, Mr Foti did not attribute his back condition in any way to his work activity in giving me a history nor did he concede there were any previous background problems although I note Mr Munyard makes reference to an injury to his back in 1991 ...
There seems little doubt that he has an acute condition to his lower spine but there is clear evidence of the existence of a long standing degenerative state to account for it and it is difficult to accept that there could be such a significant latent interval in regard to the development of acute symptoms in relation to the motor vehicle accident - 3 months - to confidently link it. If the accident was to produce such an effect, even with the sometimes delayed onset of relatively acute symptoms, the interval is still excessive.
I thus have great difficulty in apportioning any significant level of the current effect in the lumbar spine to the incident of October 1996, notwithstanding significant predisposing degenerative features which may have made him more vulnerable.”
In his later report, Mr Cornish referred to “gross inconsistencies in the history, the clinical findings as well as the extreme level of apparent debility having regard to the known pathology”. He considered that:
“The event of the vehicular accident has initiated an abnormal illness syndrome which appears to be all pervading in this man’s daily life ... There is no place for treatment of a physical nature ... insofar as the medical aspects are concerned, sustained by the presence of this insurance claim ... By objective criteria, he has an impairment in his lumbar spine of the order of 15 per cent. It would be very difficult to accept that the motorcycle accident of 19/10/96 contributed more than 20 per cent (1/5th) of this amount ... It is almost certain that Mr Foti is capable of resuming a significant range of pre‑accident duties. He is of course deconditioned physically at the present time and this complements the negative motivational aspects ... His ability to resume such duties is dependent on a reversal of the current psychological and physical status and it is unlikely that this will occur prior to settlement of the claim.”
I pause here to say that none of the other specialists shared what might be described as Mr Cornish’s robust view of the plaintiff’s current work capacity. What is of particular interest, however, is the history that the plaintiff provided. In his evidence, Mr Cornish said that at the initial consultation the plaintiff “placed no reliance on nor attributed his back condition to his work activity”. He regarded that as a “striking difference in emphasis”, given what he had seen in the other specialists’ reports (p.503). In his view, a functional overlay masked any organically-based symptoms and his estimate of 15 per cent general disability was “over-generous” .
Ultimately, cross-examination of Mr Cornish was not completed, but by agreement he was not recalled. I do not regard that omission as a matter adverse to the plaintiff’s case. As I have mentioned, the matter which, on his own view, clouded any diagnosis was the disparity between the histories provided to him and those provided to Messrs Khera and Munyard.

Mr Chawla

The next specialist appointment the plaintiff attended was with Mr Chawla, occupational therapist. That was upon referral from Dr Vinci and Mr Chawla identifies the relevant problem as “6 months ago while lifting banana boxes in repetition caused him back injury”.
Otherwise, I will return to Mr Chawla’s opinions when I discuss the general question of work capacity.

Mr Cohen

Next in time, the plaintiff was referred by his solicitor to Mr B Cohen, general surgeon, for examination and report. That occurred on 1 October 1997 and in his report, Mr Cohen recorded a history of the accident, the plaintiff reporting that in consequence “he had pain in his lower back and left leg in the ankle and knee” and a sore left wrist.

100 He had consulted his doctor and was off work for three weeks, but “When he returned to work he could undertake all the duties. The pain was still present, and while he is still employed there he has not worked since February”. His duties after return to work included fork-lift driving and:

“lifting boxes of fruit, such as bananas and pineapples, which would weigh from 13-20 kg. He would lift them onto a pallet. He said this was becoming too much for the back and he got to the point where the back was so severe that he had much difficulty in moving, including difficulties with sitting, standing and walking, and found it almost impossible to lift at work. He attended his doctor and this led to a CAT scan of his lumbar spine and he has been put off work since then ...”

Mr Cohen then recorded complaints of pain in the lower lumbar spine to the centre and the right side mainly, although occasionally on the left. He recorded that the pain radiated down the plaintiff’s right leg to the foot. In particular, he noted that after the accident the plaintiff’s back pain:

“became worse with his duties at work, particularly in regards to the lifting ... that his back became worse with the nature of his work duties and came to the point where he had difficulty continuing. He has been put off work and has not returned since ... It is probable that there have been some pre-existing degenerative changes, but not sufficient to interfere with his full function, nor to cause any specific nor significant symptoms ... It would be consistent with the nature of the vehicle collision that he has suffered a lower lumbar intervertebral injury. It is probable that he has suffered an injury to a joint or joints of his lower lumbar spine and, in all probability, affecting an intervertebral disc with some pre-existing degenerative change ...
This is the first time I have examined him and therefore can make no direct comparison with the state of his back following the vehicle collision. However, I note that he was able to return to work and undertake lifting and it is only the further aggravations that have contributed to a greater disability, in all probability. However, it is the vehicle collision in which the significant injury has occurred, and I would consider that 60 per cent of his disability in the lumbar spine is in relation to the vehicle collision, the remainder being in regards to the work aggravation.
He has a 35 per cent impairment of his lumbar spine and lower back”.

101 On 26 October 1998 Mr Cohen again saw the plaintiff and concluded:

“It is probable, as given, that the major injury to his back occurred in regards to the vehicle accident and that, even though he did return to work for a period of time, he was suffering difficulty and eventually could not continue. It is still the vehicle accident that contributed the greater affect.”

He considered the plaintiff was left with a capacity for light work only.

102 Later again, on 28 March 2000, Mr Cohen saw the plaintiff. By that time, he had numerous other reports and opinions relating to the plaintiff’s condition. It appeared not to alter his view about the level of the plaintiff’s disability or about the factors contributing to it. He accepted a history given to him that the plaintiff’s pain gradually became worse after the accident until an incident on 21 February 1997, when there was a significant exacerbation. Upon reviewing all the materials, Mr Cohen concluded that it was probable there were “some non-organic aspects to his presentation and there are, in all probability, psychological facts contributing to his response to his perceived pain”.

103 He also commented upon the plaintiff’s other injuries sustained in the accident and his recovery from them.

104 Under cross-examination, Mr Cohen acknowledged that he had relied, for his diagnosis, on the history provided by the plaintiff. In particular, he had assumed the correctness of the plaintiff’s complaint that the pain of his lower back had continually increased between the date of the accident and 21 February 1997. Whilst he had regard to the report of Mr Khera, he regarded the history provided by the plaintiff as being of prime importance. He acknowledged that he was asked to see the plaintiff specifically in connection with the accident claim. He acknowledged that the history given to Mr Khera was inconsistent with that given to him and that if Mr Khera’s history was correct, then it was more likely that the major cause of the plaintiff’s problems was what had happened at work, rather than the accident. He expressed the same in connection with the opinion of Mr Munyard.

105 Although he had received no history about it, he was asked about the plaintiff engaging in competitive boxing or boxing training and commented (p.113):

“... one would question the severity of the back problem undertaking any significant boxing form.”

He acknowledged that he had not challenged the plaintiff over the disparity in the history provided to Dr Humphreys about improvement occurring in his back condition after the accident. He acknowledged that, at no time, did the plaintiff give him a history of the kind apparently provided to Messrs Munyard and Khera, and said that if the history provided to them were accepted, then it “would suggest that the motor vehicle accident played little part ... (that) ... the major problem would have been his work in February 1997”. Further, he did not recall discussing Mr Cornish’s opinion with the plaintiff, albeit that he agreed that the history provided by the plaintiff to Mr Cornish was inconsistent with that provided to him.

106 He was challenged on his interpretation of the radiological evidence and the Waddell testing. Ultimately, he said the plaintiff was suited for light bench work, with the consequent need to move posture from time to time. He did not think the plaintiff’s condition was now susceptible to operative intervention, but saw the possibility of occasional physiotherapy treatment. He said there were signs of functional overlay present and he could not account for the disparity in the grip strength tests undertaken by Dr Cullum, nor for those recorded by Ms Trankalis, an occupational therapist.

107 He noted the observations of Dr Cullum, Ms Trankalis, Mr Awerbuch and Mr McCulloch as to the presence of functional overlay and was asked squarely whether that affected his ability to estimate the plaintiff’s work capacity. He responded that his 35 per cent disability figure was based upon an assessment of what he believed to be the organic disability, albeit that there were some non‑organic problems “intertwined amongst his total presentation” (p.128).

108 He was tested on the likelihood of an annular tear occurring in the accident, given the plaintiff’s presentation immediately afterwards, particularly at the Queen Elizabeth Hospital, and the range of symptoms expressed in the intervening time. He agreed that, given the full range of movement observed at the Queen Elizabeth Hospital, it was less likely that an annular tear had occurred in the accident. Likewise, he thought that the findings on examination by Dr Humphreys supported that conclusion (p.133). Further, he thought that if such a tear had been suffered, it would have manifested itself in symptoms within six to seven weeks from the date of the accident.

Dr Cullum

The plaintiff next saw Dr Cullum, consultant occupational physician, on 16 March 1998, at the request of Dr Vinci. He provided Dr Cullum with a history of being off work for three weeks after the accident and then going:
“back to normal duties but had ongoing pain. At the time his symptoms persisted around the right leg and also the left groin. He generally put up with work and saw, amongst others, Brian Cornish on behalf of SGIC.
Mr Foti described having ongoing symptoms at work and eventually it got to a stage her (sic) his symptoms were aggravated and he could not move and had to call out his general practitioner on a Sunday for a home visit ... It was considered that work had aggravated his symptoms but it is an obvious secondary disability as he had a previous car accident. The patient suggested to me that in fact both events are completely unrelated, though of course both produced back and leg pain and must be related. His work certainly involved a lot of manual handling and forklift driving. The patient had a gradual onset of deterioration of symptoms for about 5 months and there was the necessity of his general practitioner doing a Worksite Visit.”

110 After examination, Dr Cullum reached the view that occupational therapy was not appropriate, but that the plaintiff needed the attention of an industrial physiotherapist. He said that the plaintiff’s complaint was:

“a secondary disability from the motor vehicle accident and is associated with discogenic pain, with the patient also presenting with a chronic pain disorder where physical, psychological and environmental factors are operant and this needs to be managed by an occupational/rehabilitation physician specialist who can co‑ordinate treatment”.

111 Dr Cullum reviewed the plaintiff on 20 March 2000. By that time, he was aware of the large number of medical referrals that had taken place and also of the psychiatric opinion. He concluded that the plaintiff:

“has a significant pain disorder. There is no clinical evidence that he has a radiculopathy. The past investigations showed that he had evidence of an annular tear and now the issue is complicated by the development of a pain disorder, deconditioning and significant functional overlay. It is important that this matter is settled. From a purely organic point of view, I consider this man has a 15 per cent impairment of the lumbar spine. His actual presentation is worse than this but I consider it is influenced by marked functional overlay and is therefore not really assessable”.

112 In his evidence-in-chief, Dr Cullum acknowledged that he had been asked to examine the plaintiff in connection with a worker’s compensation claim and said that the issue was one of rehabilitation.

113 He acknowledged in cross-examination that he had relied on the history provided by the plaintiff, including that his back pain got worse in time after the accident. He conceded that the histories provided by the plaintiff to Mr Khera and to Mr Munyard were different from that given to him and that the history given to Mr Khera was “indicative of a back injury from work as opposed to any problem in the motor vehicle accident” (p.290). He further agreed that there appeared to be no report to Messrs Khera or Munyard of any referred leg pain resulting from the accident.

114 He was then referred to Dr Humphreys’ notes (P6) and was taken through each of the attendances recorded in October, November and December. Whilst he would not concede that they were inconsistent with there having been an annular tear in the accident, he did think that they were inconsistent with any “significant” tear.

115 He acknowledged that the plaintiff had told him that his back was getting worse in the period between the accident and his cessation of work. He acknowledged that the referral letter from Dr Vinci referred to the plaintiff suffering an injury to “his back at work lifting” (p.300; D7). He agreed that the plaintiff’s complaint of continuing leg pain after the accident was not recorded in the notes of Dr Humphreys. He said that he had based his diagnosis not just on back pain, but on the gradual onset of the deterioration of symptoms and constant right leg and left groin pain. He was asked whether, if that history were not accepted and the plaintiff had just had “a niggle or two in his back” as described to Mr Munyard and Mr Khera, “that would indicate that the motor vehicle accident had little or nothing to do with the incident”. He was not prepared to go that far.

116 In his opinion, there was “no significant bone degeneration of the spine on the radiological investigations” (p.307). That was an opinion very much at odds with the opinions of most other specialists and must be viewed in that light.

117 His opinion was that the plaintiff had an obvious diagnosis of chronic pain disorder. He quoted from the manual DSM-IV, the definition of a pain disorder as one where:

“pain ... is the predominant focus of the clinical presentation and is of sufficient severity to warrant clinical attention. It causes significant distress or impairment in social, occupational or other important areas of functioning. Psychological factors are judged to play a significant role in the onset, severity, exacerbation or maintenance of pain and the pain is not intentionally produced or feigned as in factitious disorder or malingering” (p.310).

In turn, he considered that a patient who grossly exaggerates symptoms for financial gain is likely to be suffering from a factitious disorder.

118 He was then cross-examined about the validity of various movement tests he had undertaken of the plaintiff. He was then referred to the tests undertaken by Ms Trankalis, whom he recognised as a “very experienced occupational therapist, I would accept her findings” (p.321). He was not able to comment on them specifically without knowing the precise results, but thought they were indicative of overlay from a pain disorder, that there was “functional overlay in the grip strength analysis, there is gross functional overlay in his spinal valuation” (p.323). He acknowledged it could be an indicator of conscious exaggeration on the plaintiff’s part. Ultimately, he said that his conclusion that the plaintiff suffered an injury following a motorcycle accident and that his symptoms were consistent with an annular tear was “totally reliant on the history” given him by the plaintiff (p.323).

119 He was asked (p.324):

“Q...... Assuming the sort of history I put with Dr Khera, Munyard and Humphreys, at best the motor vehicle accident was a very minor player in this situation; assuming that history.
A.If the history is correct, which is not what I’ve been given. If that’s the history, that is correct, we would expect the motor vehicle accident to be a minor player.”

If it were to be assumed that the pain from the accident was not improving after the accident and that the plaintiff subsequently had a breakdown after resuming normal work duty, he would consider that the back had been weakened by the accident, that there was likely a minor tear of the disc which had caused some soft tissue injuries, that it did not completely resolve and that it was aggravated by his resumption of work.

Mr Kassapidis

120 Next in time, the plaintiff saw Mr Kassapidis, a psychologist. He did so at the request of Dr Vinci and plainly in connection with the plaintiff’s compensation claim. I will return to discuss Mr Kassapidis’ findings in the context of the plaintiff’s work capacity.

Mr McCulloch

121 The next medical examiner in the matter was Mr McCulloch, who saw the plaintiff at the request of the defendant on 19 November 1998. He noted the history of the accident on 19 October 1996 and, in particular, (D10):

“He said he had had no other significant motor vehicle accidents other than in 1993 when someone cut in front of him. He had no injuries however. He denied any previous history of any spinal symptoms or spinal injuries.”

Later, he noted:

“He told me that he worked as a forklift driver at the Pooraka Markets Fruit and Vegetable Section. He had been there for about 13 years in total. He was not working currently. His job was apparently terminated as he could not do the normal duties which included some heavy lifting.”

122 Of course, at the time of that examination, Mr McCulloch was aware of the separate histories provided by the plaintiff to Messrs Khera and Munyard, and he commented that they raised “a high level of doubt as to the significance of the motor vehicle accident”. He further considered there were inconsistencies and over‑reaction apparent in the plaintiff’s presentation. He concluded that the plaintiff had suffered generalised bruising in the accident, but was “unconvinced” that there had then been any injury to the lumbar spine, particularly his discs. Nevertheless, he accepted that the plaintiff was, at the time of examination, suffering from some spinal problem and that it prevented him from performing heavy labouring work. He accepted that the plaintiff would have been unable to work for some weeks after the accident, but concluded what actually caused him to stop work was the incident at work on 27 February 1997. This incident had been described by the plaintiff to Messrs Khera and Munyard, but not to him.

123 In a later report of 16 April 1999 (D11), Mr McCulloch reviewed his opinion, having also read the notes of Drs Humphreys and Vinci. He then agreed there did appear to have been “some degree of injury to his lumbar spine in the motor vehicle accident” and he acknowledged the record of progress set out in Dr Humphreys’ notes. He observed that the plaintiff “had recovered to a very large degree but not necessarily fully” from the accident by the time of Dr Humphreys’ last report on 28 January 1997. He concluded that the injury was probably an aggravation of an L4-5 disc bulge. There had been complaints of low back pain prior to the accident and there was thus a “significant incident at work in February 1997 resulting in a marked increase in his incapacity. I think therefore it would be reasonable to say that his residual disability is due to both of these factors” (i.e. the accident and the work injury on 27 February 1997), and that they were “equally responsible” for it.

124 In response to further correspondence with solicitors, Mr McCulloch reported on 10 June 1999, noting that the plaintiff had resumed normal duties by the time of the work incident. He concluded that the work incident “markedly worsened his situation” (D12), that in effect it was the straw that broke the camel’s back.

125 Thus far I have discussed his reports. Mr McCulloch gave evidence and was examined carefully about the diagnostic material. He had concluded from it that the plaintiff had had signs of pre-existing spinal degeneration which had been present for “years”. The disc bulge at L4-5 was one capable of causing referred leg pain. He said that if the history given by the plaintiff to Mr Khera had been correct, then the accident had played no part at all in the plaintiff’s ultimate disability; likewise with the history provided to Mr Munyard. In his opinion, the accident was unlikely to have caused an annular tear, because it ordinarily would have resulted in a significant restriction of movement and a major complaint of back pain, even by the time the plaintiff had presented at the Queen Elizabeth Hospital, and that had not occurred. Likewise, the history provided to Dr Humphreys was not consistent with a major annular tear, although he thought it could be consistent with a “very slight annular tear” (p.473). Dr Humphreys had recorded principally left‑sided lumbar pain and only a later report of right leg pain. He considered that if any annular tear had been responsible for the plaintiff’s right leg pain, then it might have been expected that there would have been right-sided lumbar pain reported at an early stage to Dr Humphreys, and this had not occurred.

126 He commented that the “mechanism ... of the worker’s compensation injury occurring in 1997 was much more typical of the type of injury which would result in a major tear of the annular bulge and the disc” (p.474) and, at page 475, added:

“Yes, I think my position with that assessment in the report of 16 April 1999 (Exhibit D11) is not the position I would come down at the present time. I would come down more as I’ve stated a few moments ago, that the motor vehicle accident was a lesser contributing factor. Where I have proportioned 50 per cent to each I think the record of Dr Humphreys of the level of the improvement and, in particular, the physical findings some six weeks after the injury, suggest there is not a major lumbar disc injury. I think the degree of disability arising from the motor vehicle accident would be a minor, a minority degree of assessment ... it is clearly a factor in the sense it sets the right setting for the patient to have the injury, ignoring the degeneration, I would think that a contribution of something in the order of 20, 25 per cent from the motor vehicle accident and about 75 per cent from the February 1997 accident is a correct assessment.”

127 He considered that, given the degree of degenerative change and the age of the plaintiff, it was unlikely the plaintiff would have continued in labouring‑type duties beyond the age of about 40, anyway. He accepted that the plaintiff was now restricted to lighter duties, such as bench work, office work or some driving duties. He could not do heavy labouring work.

128 In cross-examination, Mr McCulloch rejected the suggestion that the presentation of the plaintiff in the period immediately following the accident and before his cessation of work in February 1997 was indicative of any significant or major annular tear; indeed, he thought the plaintiff’s resumption of normal work at some point prior to 21 February 1997 was a “strong point against an annular tear” (p.486). If the plaintiff had resumed work, including normal lifting, and had continued this without incident for some days and had then experienced increasing back symptoms, that was, in his view, more indicative of a work incident being responsible for his condition.

129 He was tested on whether there was any inconsistency between the observations of Dr Humphreys and those at the Queen Elizabeth Hospital, and he said there was not and any differences between them could be explained by the time lapse between the accident and each of them. In his opinion, the fact that the hospital notes recorded a full range of movement in the back constituted a “moderately strong point against a major annular tear having occurred”, but not against a “minor annular tear” (p.492).

130 He was tested on the revision of his original opinion that the accident and the work injury had contributed equally. In response, he referred to the Queen Elizabeth Hospital notes and those of Drs Humphreys and Vinci, which he had not previously seen, and also to discussions he had had with the defendant’s solicitors about the situation. He did not enlarge upon those discussions. He said he had not been badgered by solicitors and had made up his own mind. Were it accepted that Dr Humphreys had not carried out the forward flexion test (the notes being silent on that), he might have been disposed to alter his contribution finding by reducing the work incident responsibility from 75 per cent to 60 per cent.

Mr Awerbuch

131 The next medical examiner the plaintiff attended was Mr Mark Awerbuch and that took place at the request of the defendant’s solicitors on 30 August 1999. Mr Awerbuch saw the plaintiff only once and provided a report dated 31 August 1999 (D8). He recorded a history taken from the plaintiff of the accident, his visit to the Queen Elizabeth Hospital and then his consultations with Dr Humphreys. At page 2:

“He said that Dr Humphreys had put him off work for 3 weeks after which he returned to full time light duties. He was unable to recall for how long he had continued on light duties, but he said that at some point he had gradually tried resuming normal duties, ‘that’s when I started getting more problems’. He said that attempting to return to normal duties had aggravated his low back pain in addition to which he had apparently developed pins and needles ‘in the whole back of the leg right to my toes’ (referring to his right leg).”

(5)........ The evidence as to what occurred on, or prior to, 21 February 1997, was conflicting.
On the plaintiff’s account, he had carried on with his normal duties until Friday, 21 February, but was sore at the end of the day and felt worse over the weekend, so he then called in Dr Vinci, who was available on weekends. It is evident, and I find, that in that consultation he did not tell Dr Vinci of the accident, but instead related to him a history of pain in his back and one of his legs, that he thought he had pulled a muscle whilst he had been doing heavy work with lots of lifting. The plaintiff did not describe a specific incident to him, but Dr Vinci said he took the plaintiff to be saying that he had suffered a back injury over the course of the past week at work.
Dr Vinci then referred the plaintiff to Mr Khera, advising in his referral that the plaintiff had “injured his back at work, with gradual onset of low back pain and sciatica”. At a much later time, Dr Vinci also wrote to Dr Cullum, saying the plaintiff had injured his back at work “lifting boxes of bananas 21.2.97”.
When the plaintiff saw Mr Khera, he related a history that “on the 17th February 1997 when at work he was doing his normal work. When lifting things he felt a pain in the lower back and informed his boss. He kept on working. The pain slowly got worse and later he consulted you”. That account seemed to identify a specific incident on 17 February 1997.
The plaintiff also saw Mr Munyard, on 27 February 1997. In his report (P2), Mr Munyard took a history that the plaintiff had “on the Friday previously felt he had pulled a muscle in his back but kept on working. Over the weekend the situation became worse ...”. Elsewhere, Mr Munyard recorded that “the major problem had occurred on February 27th”. Those accounts thus described a specific incident and were similar to the history provided to Mr Khera.
Exhibit D19 was the plaintiff’s WorkCover file and within the file was a Notice of Disability apparently signed by the plaintiff and describing the relevant work incident as lower back pain occurring whilst the plaintiff was “producing an order which includes lifting boxes of fruit ready for despatch to customers”. Again, this appears to identify a particular incident.
There is then the report of Mr Chawla, occupational therapist (P13), where he records the plaintiff’s problem as “6 months ago while lifting banana boxes in repetition caused him back injury”.
The plaintiff told Mr Cornish that as he continued his resumption of work after the accident, “he became increasingly troubled by low back pain”.
He told Mr Cohen that he resumed his full work duties, but his back became worse, so he went to his doctor.
He told Dr Cullum that he resumed normal duties and put up with pain until symptoms reached the stage that he could not move.
He related to Mr McCulloch that his job had been terminated because he could not do his normal duties, including heavy lifting.
When he saw Mr Awerbuch, he said that he “started getting more problems” with his back after attempting normal duties, that they aggravated his back pain and that he developed pins and needles.
He gave similar accounts to Professor Goldney and Dr Le Page.
It will thus be seen that there is a range of different accounts of just what led to the plaintiff’s cessation of work on 21 February 1997. It varies from gradual aggravation, after resuming normal duties, of his back injury suffered in the accident, to aggravation or separate injuries over his last week at work, to a specific incident on his last day there. When considered in the context of all other matters, this contributed to my loss of confidence in his reliability generally.
(6)........ It is apparent that at some point in time, the plaintiff embarked upon a course of action which was aimed at minimising the significance of the accident, or even concealing its occurrence, to those doctors seeing him about the compensation claim and otherwise minimising the significance of any work injury, or, indeed, the occurrence of any work injury, to those doctors concerned with the accident claim. On all the evidence, that conclusion is inevitable and I have already traversed the passages dealing with it.
I remind myself that one should be guarded about reading too much into differing histories taken by various medical examiners - it is not evidence of itself probative, and differences can arise from the way in which the history is taken - but in this case, the differences are stark and too closely connected with the purpose of the particular consultation to be coincidental. These are matters which I consider go directly to the plaintiff’s credit.
(7)........ Concerning his consultation with Mr Khera, there was one specific matter which clearly put the plaintiff’s credit in issue and, indeed, that of his wife, and I have already discussed it in detail.
Mr Khera’s account of what was said about the accident in that consultation stood in stark contrast to the plaintiff’s own account and, indeed, that of his wife.

............. In giving evidence, the conversation alleged by Mr and Mrs Foti was specifically put to Mr Khera and he very firmly rejected the suggestion that it had occurred.
I am satisfied from his evidence that had such a reference been made, Mr Khera would have regarded it as highly significant, given the purpose of the consultation, and he would have noted and discussed it in the context of his diagnosis. He did neither.
............. I unhesitatingly accept the evidence of Mr Khera as to what took place in that consultation and it follows, and I find, that neither the plaintiff nor his wife has given a true account of it.

My views as to the plaintiff’s credibility were strengthened by the opinions of the various medical and other experts to the effect that had the plaintiff suffered the serious back injury and symptoms he claimed to have suffered in the accident, his presentation both at the Queen Elizabeth Hospital and to Dr Humphreys would have involved complaints of a much more serious kind. Further, I accept those opinions to the effect that had such a serious injury then been suffered, it is unlikely that the plaintiff would have been able to return to his normal duties for the period he undertook them, or at all.
The acceptance of that evidence implies that the original injury was not as significant an event as the plaintiff sought to portray in his evidence.
I am also influenced by the evidence of Ms Trankalis as to the various tests she conducted upon the plaintiff. Whilst there was other evidence relating to his response to non-anatomical tests that is potentially explicable in terms of a psychological or psychiatric condition, Ms Trankalis, who presented as a very careful and thorough examiner, commented that there was quite specific evidence of the plaintiff’s inconsistency in responding to grip strength tests, that the results were “self-limiting”. Those results are not readily reconcilable with any diagnosed condition.

(10)...... There were then two curious aspects of the plaintiff’s case which also caused me to have considerable reservations about his credibility. The first related to Dr Humphreys’ observations in his notes of 28 January 1997 that punching hurt the plaintiff’s wrist and that “boxing” was in some manner relevant to that examination. In his evidence, Dr Humphreys was unable to independently recall what that note was about. For his part, the plaintiff denied participation in boxing or boxing training since he was quite young, but I was left to wonder why such a reference would find its way into Dr Humphreys’ note. Likewise, it was apparent that the plaintiff had in 1998 purchased a jet ski and attempted to use it, albeit unsuccessfully (p.25). The fact that the plaintiff might have attempted that activity at a time when he was claiming to be unable to work was surprising enough, but his explanations for buying a jet ski to try the activity out, when clearly he might have hired one or borrowed the one his brother owned, seemed to me to be guarded and unconvincing. These two matters, standing alone, might not have undermined the plaintiff’s credit, but in the context of the other matters I have mentioned, they added to the unfavourable impression I had of the plaintiff’s reliability.
(11)I should record that, although the defendant sought to cross‑examine the plaintiff at length as to his financial affairs, his capacity to live his current lifestyle and to undertake a range of capital purchases, I was not satisfied that that cross‑examination substantially damaged the plaintiff’s credit or that it achieved (if it sought to) the objective of suggesting he was earning income from any other source. I regarded that evidence as simply neutral.

187 All in all, therefore, I could not feel confident in accepting much of what the plaintiff said in his evidence.

188 It is against that background that I will now consider the expert evidence relating to (a) the significance of the accident, (b) the significance of the pre‑existing degeneration, (c) the significance of any work injury or injuries, (d) the nature and extent of the plaintiff’s asserted pain and disability, (e) the psychiatric issues, (f) the plaintiff’s work capacity.

DISCUSSION OF EXPERT EVIDENCE

189 As frequently happens in matters of this kind, as the medico-legal enquiries emanating separately from the accident and the compensation claims widened, views became more polarised. No doubt, clinical findings played their part in this, but it is equally obvious that examiners became increasingly conscious of:

(1)... the particular purpose of the relevant consultation and the conflict over causation; and

the fact that differing histories had been provided by the plaintiff to various examiners.

190 For their own parts, those examiners called by the plaintiff based their reports and evidence on an acceptance of the respective histories provided by the plaintiff to each of them. Various other assumptions were put to them in cross‑examination and their views then fluctuated. In contrast, those examiners called by the defendant, having had their attention drawn to the differing histories provided by the plaintiff, were more guarded about their findings. By reason of the findings I have made as to the plaintiff’s credit, there was good reason for them to be so.

191 I am satisfied the plaintiff presently suffers from a back injury which has affected his enjoyment of life and his earning capacity, and will do so in the future, but my lack of confidence in his credibility, the impact of that on the reliability of the histories he has provided to various examiners, and the significance of those histories in their opinions generally and as to causation, all contribute to the difficulty of determining what, if any, role the accident has played in his present condition.

192 In approaching that determination, I have derived particular assistance from a consideration of those events and consultations which followed immediately upon, first, the happening of the accident and, secondly, the plaintiff’s cessation of work on 21 February 1997.

193 In the immediate aftermath of the accident and prior to the time when the plaintiff ceased work (or even, perhaps, had any appreciation that he might ultimately do so), the plaintiff’s complaints to ambulance officers, to the Queen Elizabeth Hospital, to SGIC and to Dr Humphreys appear to me to be of considerable significance.

194 Equally, his complaints to Drs Vinci, Khera and Munyard in the period immediately after he left work are important, particularly given their proximity to the accident.

195 I have already discussed that evidence in detail.

196 What it reveals is, and I find, that after the accident the plaintiff’s back was slightly stiff, but still had a full range of movement, that over the period he saw Dr Humphreys until the end of January 1997, he continued to experience some soreness in his lumbar spine, but that it gradually improved such that he was able to resume light duties three weeks after the accident and then his normal heavy duties at some time between early January and early February 1997. He last saw Dr Humphreys on 28 January and apparently had no need to see him after then and prior to 21 February 1997.

197 I am satisfied, and I find, that from a time commencing between early January and early February and extending to the week of 17 February 1997, he was able to carry out his normal work duties without significant back or other discomfort.

198 I am further satisfied, and find, that either on 21 February 1997 or in the working week immediately preceding it, he felt pain in his lower back whilst carrying out lifting at work, that he attempted to carry on with his work and, indeed, completed it, but felt increasing pain over the following weekend and thereupon elected to see Dr Vinci, who was available for a consultation on Sunday, 23 February.

199 He described such a history to Dr Vinci and, indeed, within four days had seen both Messrs Khera and Munyard and provided similar accounts to them. He did not tell Dr Vinci of a particular day upon which he felt that he had pulled a muscle, but he did tell Messrs Khera and Munyard of a specific incident on Friday, 21 February.

200 In the meantime, he had undertaken a CT scan at the request of Dr Vinci and it disclosed bulging of the annulus at the L3-4 and L5-S1 levels and a central disc protrusion at L4-5.

201 As I have already observed, he said nothing then about the accident to Dr Vinci. He did mention it to Mr Khera, describing various bruises but no serious injuries, but he said nothing to Mr Khera about any back injury sustained in it. He did mention the accident to Mr Munyard, saying that there had been some “little” back discomfort afterwards, but that the major problem had occurred at work.

202 I accept, generally, the expert evidence relating to those consultations post‑dating the accident and up till the time of and including the plaintiff’s first consultation with Mr Munyard, and I am satisfied that the histories then provided by the plaintiff to those parties were generally truthful and reliable. That evidence is consistent with the plaintiff’s recovery from a back sprain in the accident, his resumption of normal work duties after that and then the occurrence of the incident or incidents at work to which I have referred and which effectively obliged him to cease work. It is, however, quite inconsistent with the plaintiff having suffered a serious annular tear or a significant back injury in the accident. The clear consensus of the medical opinion which I do accept, is that had he suffered such an injury in the accident, it is unlikely that:

(1)... severe symptoms would not have been evident at the time he presented at the Queen Elizabeth Hospital;

such symptoms would not have been observed by Dr Humphreys over the several consultations the plaintiff had with him;
the plaintiff would have so promptly returned to light work and then resumed normal duties, involving heavy lifting and bending, by January or February 1997.

203 I am further satisfied, and find, that the injury at work, which I have found occurred either on 21 February 1997 or in the week that immediately preceded it, led to his cessation of work. I am satisfied as to that because:

(1)... plainly, the plaintiff left work after 21 February 1997;

he contemporaneously told Drs Vinci, Khera and Munyard that that was what had happened;
when he so told them, he was conscious of having previously suffered a back injury in the accident, yet he either failed to mention the accident at all (in the case of Dr Vinci) or otherwise regarded it as unconnected (when he saw Messrs Khera and Munyard). He identified to those doctors (and, indeed, to others) a lifting incident at work;
there was no satisfactory evidence tending to show that the incident he suffered at work was caused by, or in any way connected to, the back injury he suffered in the accident. True it is that it affected the same general area of his back, but the symptoms he described, and their location, were different;
in the latter respect, the consensus of the medical opinion which I do accept, was that the plaintiff had, by the time of the CT scan, suffered an annular tear which was producing major symptoms. That scan was, of course, only undertaken (indeed, thought necessary), after 21 February 1997. It was considered possible, but unlikely, that such a tear could have been precipitated by the accident without producing symptoms considerably more serious than those I have found were present prior to the work injury. Further, I accept the evidence that activities of the kind undertaken by the plaintiff in his normal work duties were more likely to have caused the annular tear that was subsequently diagnosed, than were the dynamics of the accident.

204 To that point in time (the time of the first Munyard consultation), the plaintiff’s histories and the medical opinion were not in conflict. It is only after then that inconsistencies begin to emerge.

205 I shall then discuss the views of the various specialists as to the level of disability and any connection of the accident with it.

206 Mr Munyard considered the plaintiff had a lumbar spinal disability to the extent of 15 per cent. He considered, at first, that the accident contributed to 50 per cent of that, but later revised that opinion to one third. Mr Cornish agreed with that 15 per cent lumbar disability level, as, indeed, did Dr Cullum. Mr Cohen suggested a 35 per cent level and Mr McCulloch, 10 per cent. Mr Awerbuch did not appear to express an opinion in those terms. None of Messrs Cornish, Awerbuch or McCulloch considered that the accident had played any part in the plaintiff’s inability to resume work after 21 February 1997, Mr Cohen considered that the accident was 60 per cent responsible for it, but then conceded that if the history that the plaintiff provided to Mr Khera was correct, the work incident was more likely to be the major cause of the disability. Dr Cullum agreed with the latter comment. Messrs Cornish and Awerbuch thought the plaintiff could resume normal duties, anyway, and Mr McCulloch thought that overall the accident had contributed to the extent of 25 per cent to the plaintiff’s back disability.

Having regard to all the evidence, to my findings as to the plaintiff’s credit and to those opinions, which I find acceptable and generally consistent with the evidence I accept, I am satisfied that the plaintiff has, since 21 February 1997, suffered from a 15 per cent disability of his lumbar spine.

208 I am further satisfied that that level of disability prevents the plaintiff permanently from engaging in heavy labouring work and that, in all the circumstances, he is fit only for light, unskilled work. In that respect, I reject the evidence of Messrs Cornish and Awerbuch.

209 I am satisfied, further, that the injury suffered by the plaintiff in the accident has contributed to the extent of that lumbar spinal disability, but only to a minor degree, a level which I find to be 30 per cent. Given my acceptance of the evidence of the plaintiff’s early complaints to the Queen Elizabeth Hospital and Drs Humphreys, Vinci, Khera and Munyard, such a finding is consistent with the opinions of Messrs Munyard, Cohen, Cullum and McCulloch, albeit that some express different percentages and others simply describe the accident as a minor contributor.

210 Having made those findings, it does not follow that the accident has contributed to the plaintiff’s loss of earning capacity since 21 February 1997 and, indeed, I find that it has not. I am satisfied, and find, that:

(1)... prior to the accident, the plaintiff was suffering from a level of spinal degeneration which was at that particular time asymptomatic, albeit that the plaintiff had had earlier incidents of back pain;

in consequence of the accident, the plaintiff suffered from a mild lumbar sprain;
that he made a gradual recovery from that injury, that he was fit to resume light work some three weeks after it and did so, that he was fit to resume his normal heavy labouring work by early January or early February 1997, at the latest, and that he did so;
that from the time he resumed normal duties, the plaintiff remained capable of earning an income in heavy labouring work of the kind he had previously performed and for an indefinite time into the future;
that he suffered an injury at work on or just prior to 21 February 1997 in the form of an annular tear in his lumbar spine. That injury was an overwhelming or intervening event which deprived him of his then current capacity to undertake heavy labouring work.

211 In consequence of the above findings and whilst I am satisfied that the accident has played a minor part in his current level of lumbar disability, I expressly reject the submission that the accident has in any way caused the plaintiff to lose his capacity to engage in heavy labouring work. But for the work injury, I am satisfied he would have continued to undertake that work; in consequence of it, he lost that capacity.

212 In the light of those findings, it is probably unnecessary for me to deal with the evidence of the occupational therapists, but, in any event, to the extent that that of Mr Chawla conflicted with the evidence of Ms Trankalis, I unhesitatingly prefer the evidence of the latter, for the reasons already commented upon.

213 It also becomes of lesser relevance to discuss the psychiatric evidence. Dr Le Page considered that the plaintiff was suffering from a chronic pain syndrome and a chronic reactive anxiety stress disorder consequent upon his back injuries and physical limitations. Professor Goldney took a different view, concluding that the plaintiff’s conduct following the accident was not such as to suggest the development of any post‑traumatic stress disorder, nor did he consider there was a chronic pain syndrome present, albeit he allowed that there might be some adjustment reaction present to whatever the plaintiff’s physical condition was when he saw him. He thought that would be a minor adjustment reaction, in any event.

214 As I have found that the major part of the plaintiff’s disability is attributable to the work injury and that his incapacity for heavy work is wholly attributable to it, the significance I must attach to the psychiatric evidence in terms of its connection with the accident is necessarily diminished. It is further diminished by reason of the fact that the plaintiff provided different sets of symptoms to each of the examiners. Their consultations were only three months apart and, having regard to my earlier findings about the plaintiff’s credibility, I have serious misgivings over the reliability of their findings. I generally preferred the evidence of Professor Goldney, in any event, and by the time he saw the plaintiff, he was satisfied that, at worst, Mr Foti had a minor adjustment reaction attributable to his whole physical and personal status. On the basis of what I have found, I am thus satisfied that the accident has been only a minor contributor to a minor adjustment reaction.

DAMAGES

215 Against those findings, I turn to assess the plaintiff’s damages.

Non-Economic Loss

216 For the purposes of the Wrongs Act, the agreed multiplier is a figure of $1,520.

217 I am satisfied, on all the evidence, that in consequence of his injuries generally, the plaintiff has been limited in the physical activities he is able to carry out in his domestic, recreational and social life. That conclusion must follow from the medical consensus that he has a 15 per cent lumbar disability and is not fit for heavy work. Otherwise, he spoke of a range of pre-accident activities he can no longer undertake and of pain and discomfort generally, including headache. Given my findings as to his credibility generally, I regard the full extent of his claims with some reservation. Nevertheless, I am satisfied that his back problem does restrict his social and leisure activities, and causes him pain and discomfort.

218 I am further satisfied that he has had trouble adjusting to the limitations on his physical capacities and that these factors have both contributed to a loss of enjoyment of life and diminution in the quality of his relationship with his wife. Mrs Foti supported a number of these claims, albeit that I formed an unfavourable impression of her evidence generally.

219 Whilst I have found that the plaintiff’s present physical disabilities and his adjustment reaction have been assessed as 30 per cent attributable to the accident, it does not follow that those factors which go towards evaluating a loss of this kind are all necessarily contributed to in those proportions by the accident. For example, the accident alone might have prevented the plaintiff from properly enjoying his hobby of motor cycle riding, so that loss was already complete prior to the work injury. On the other hand, his capacity to fully participate in and enjoy sexual intercourse might not have been affected by the accident, but substantially affected by the work injury. I make no findings on these matters, as there was insufficient evidence enabling me to do so, but I simply observe that in assessing the numerical value, a mathematical approach applying a 30 per cent contribution to a 15 per cent disability and its resultant consequences is not appropriate. In arriving at the numerical figure, I will simply do the best I can on the available evidence to have regard to those non-economic detriments suffered by the plaintiff in consequence of the accident.

220 I fix a numerical value of 7 to this head of loss, hence a gross figure of $10,640.

Economic Loss

221 It was agreed between the parties that at the time of the accident, the plaintiff’s net weekly income was $559.44 and that that rate continued through at least until 21 February 1997.

222 After the accident, he was absent from work for three weeks, so on the basis of my findings, he is entitled to two weeks’ loss of income at a total of $1,018.88.

223 He apparently then resumed light and normal duties on his ordinary wage level up to 21 February 1997.

224 I have found that his loss of earning capacity since that time has been wholly attributable to his work injury. For these reasons, I cannot find there is any basis for awarding the plaintiff damages for economic loss occurring after that date.

225 Economic losses are therefore fixed at $1,018.88. I will allow a lump sum of $400 in lieu of interest on that loss.

Future Medical Expenses

226 The plaintiff sought some allowance for the future cost to him of medication, particularly analgesics, and for any required physiotherapy. Whilst I am satisfied that there will be an occasional need for him to seek such attention and otherwise use medication, I keep in mind these factors:

(1)... no specific evidence was led as to the likely cost of it;

only some undefined part of that need is attributable to the accident;
he has, in any event, been compensated by the workers’ compensation insurer for future medical expenses to the extent of $1,000, as appears in D19. That compensation was, in my view, a loss or expense for which the defendant here would at least, in part, be liable.

227 Following Manser v Spry & Anor (supra), I am not here satisfied that the assessment of such a liability would exceed that part of $1,000 for which the defendant could reasonably be said to be liable.

Voluntary Assistance

228 There was no claim for voluntary assistance.

Special Damages

229 Special damages were not claimed by the plaintiff, so there is no need to make any assessment under this head.

Workers’ Compensation Payment

230 It emerged in evidence that the plaintiff received worker’s compensation at appropriate rates from 21 February 1997 until about 12 March 1999, when that liability was redeemed upon a payment of $49,000.

231 As I have found the plaintiff is not entitled to any damages for economic loss post-dating 21 February 1997, there should be no deduction on account of that payment.

The worker’s compensation file (D19), also reveals that in about October 1998, the plaintiff was compensated in the sum of $20,077.56 for disabilities based on a 15 per cent loss of function of his lumbar spine and 10 per cent of his right leg. To the extent that that calculation related only to the lumbar spine, the component of the overall sum then calculated was apparently $12,516. On the evidence I have accepted, the accident contributed to that calculation to the extent of 30 per cent, hence there should be deducted from the plaintiff’s damages an amount of $3,754, so that the plaintiff is not doubly compensated (Manser v Spry, supra).

233 When those figures are put together, the final calculation is as follows:

Damages for non-economic loss  $10,640.00
Damages for economic loss  $ 1,018.88
In lieu of interest on economic loss  $     400.00     _________
Total  $12,058.88
Less deduction for compensation
received (as above)  $ 3,754.00  _________
Net  $ 8,304.88     _________

85 per cent thereof equals $ 7,059.15

234 There will thus be judgment for the plaintiff in the sum of $7,059.15, inclusive of interest, and I will hear the parties as to costs.

[2000] SADC 87

9 August 2000