Gibson v Treacy

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: GIBSON -v- TREACY & ORS [2006] WADC 4

CORAM: WAGER DCJ

HEARD: 14-24 NOVEMBER 2005

DELIVERED : 30 JANUARY 2006

FILE NO/S: CIV 1006 of 1999

BETWEEN: DERICK JOHN GIBSON
Plaintiff
AND
ANDREW TREACY
First Defendant
GRAHAM McGREE
Second Defendant
AWP CONTRACTORS PTY LTD
Third Defendant

Catchwords:

Negligence - Whether accident caused injuries - Successive accidents - Damages - Assessment - Plaintiff a 28yearold excavator driver at time of accident - Turns on own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Road Traffic Act 1974 WA

Result:

Second and third defendants negligent
No contributory negligence by the plaintiff
Damages awarded to plaintiff in the sum of $1,024,119

Representation:

Counsel:

Plaintiff:     Mr B L Nugawela
First Defendant             :     No appearance
Second Defendant         :     Mr J P Olivier
Third Defendant           :     Mr J P Olivier

Solicitors:

Plaintiff:     Marks & Sands
First Defendant             :     Not applicable
Second Defendant         :     Talbot & Olivier
Third Defendant           :     Talbot & Olivier

Case(s) referred to in judgment(s):

Bennett v Minister of Community Welfare (1992) 176 CLR 408
Insurance Commission of Western Australia v Container Handlers Pty Ltd (2004) 218 CLR 89
Jongen v CSR Ltd (1992) A Tort Rep 61,706
Watts v Rake (1960) 108 CLR 158
Wylde v Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997

Case(s) also cited:

Briginshaw v Briginshaw (1938) 60 CLR 336
Bus v Sydney County Council (1989) 167 CLR 78
Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202
Canale v Commissioner of Main Roads (1982) 1 WCR (WA) 163
Czatyrko v Edith Cowan University (2005) 79 ALJR 839
EMI (Australia) Ltd v Bes [1970] 2 NSWR 238
Kschammer v RW Piper and Sons Pty Ltd [2003] WASCA 298
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Pennington v Norris (1956) 96 CLR 10
State Government Insurance Commission (Western Australia) v Oakley (1990) A Tort Rep 81003
St George Club Ltd v Hines (1961) 35 ALJR 106
Thomas v O'Shea (1989) A Tort Rep 80251
Uzabeaga v Town of Cottesloe [2004] WASCA 57
Waddington v Silver Chain Nursing Association (1998) 20 WAR 269
Weatherall v Insurance Commission of Western Australia [2005] WADC 135

WAGER DCJ: The plaintiff alleges that on 9 December 1994 while employed as a digger driver for the third defendant, a mining subcontractor, he was required to move an excavator from pit to pit. He manoeuvred the excavator onto the back of a truck subsequently driven by the second defendant. The truck became bogged and a bulldozer driven by the first defendant attempted to free it. The excavator fell off the back of the truck and the plaintiff who was in the excavator cabin suffered injury. The plaintiff alleges that the accident was caused by the negligent driving of the second defendant and/or the failure of the third defendant to provide a safe system of work, transportation and supervision. The second defendant and the third defendant admit that the accident occurred, but say that the accident was caused wholly or in part by the plaintiff's negligence. The second defendant and the third defendant deny that the plaintiff suffered the injuries claimed and allege that if any injuries were sustained, they resulted from one or more of the subsequent accidents involving the plaintiff from 1995 to 1998.
By order dated 27 May 2002 the plaintiff's claim against the first defendant was dismissed. The plaintiff's claim against the second defendant and third defendant was stayed save to the extent that the plaintiff's claim is for damages to which the Motor Vehicle (Third Party Insurance) Act 1943 applies.
Both liability and quantum are in issue.

The plaintiff's evidence

The plaintiff is an aboriginal man who was born in Geraldton on 19 January 1966 and educated in Mullewa to Year 10. He attended Geraldton TAFE for three years and completed a certificate course in welding, together with non certificate courses in bricklaying and petrol and diesel mechanics.
After completing TAFE he worked as a wool presser in Three Springs for a period of approximately three years. In around 1987 he was employed by Western Mining at a talc mine where his duties included driving 25 tonne trucks, being a loader driver and a core sample driller. The work required him and another to lift heavy pipes and to stand all day for at least eight hours.
In 1988 he commenced employment with the third defendants who were contracted to supply machinery and operators to Dominion Mining at Paddy's Flats Mine and/or other mines in Meekatharra. He ceased employment briefly when his wife was ill and was subsequently employed by Dominion Mining Company in a blasting crew from May 1991 until May 1992.
In May 1992 the plaintiff returned to work for the third defendant and continued to work for them until 1998. On return in 1992 he was required to drive excavators, auto‑carts, bulldozers and graders. He often worked overtime shifts of 12 hours or more on uneven rock and the only work breaks he would have were lunch, smoko breaks or brief toilet breaks. After the accident on 9 December 1994 but on unspecified dates, he received training as a leading hand. This position required him to set up lights for the night shift with the assistance of an offsider and to relieve excavator drivers. He took up the leading hand position on a permanent basis one week out of every five and continued to either operate equipment or act as an acting leading hand at other times.
The plaintiff continued to work at the Meekatharra site until he was transferred to Laverton in 1996. He initially worked as an excavator operator in Laverton and then commenced work primarily as an acting leading hand until 1997 when, after completing a two‑week computer course, he was employed at Greenbushes as a pit cam operator to monitor truck movements on site. By the end of 1998 his hours had been reduced to four hours per day. He was unable to work longer hours and has not returned to work in any capacity since 1998.

The accident

On 8 December 1994 the plaintiff started a night shift that was due to end at 7 am on 9 December 1994. At approximately 5.30 am he was instructed by the night shift leading hand to cart an excavator from one pit to another. He had been working on other machinery at the time of the request but accepted the task because he understood that nobody else wanted to do it. He moved the excavator by carting it on the back of a 777 dump truck ("the truck") a manoeuvre that he had undertaken over fifty times before in the course of his employment that usually took between 15 minutes to one hour to complete depending on the distance to be travelled between the pits. In order to place the excavator on the back of the truck, he had to track the excavator to the top of a dirt bench that was approximately 2.8 metres in height above the dirt area on which the truck was driven. The truck's tray‑top height was also 2.8 metres. The truck reversed to the dirt bench so that the top of the tray‑top was level with the height of the bench and the plaintiff then loaded some dirt onto the tray‑top to avoid metal being placed on metal. He then "walked" or tracked the excavator onto the back of the truck. The excavator bucket, attached to a metal stick and joined to a metal boom, was then lowered by him to the front of the truck so that the weight of the excavator was balanced for transportation. He considered this to be standard procedure and believed it was usual practice for the driver to remain in the cabin of the excavator while the excavator was being moved, so that if the hydraulics failed and the bucket dropped too low in front of the truck, the excavator driver could lift the bucket without requiring the truck to stop.
After the excavator was in place, the plaintiff told the driver of the truck (the first defendant) that he was "right to go" via a two-way radio system. The first defendant started driving but became bogged within metres when the left back dual wheels went down in soft talc‑like sand and the truck started to fall to the left hand side. The plaintiff called the first defendant on the two-way radio and told him to stop. The plaintiff then swung the bucket to the left hand side of the truck and put it out flat to the ground in an effort to support the truck and stop it from falling over. The first defendant put the truck into "park" and, at the request of the plaintiff, went to arrange for a bulldozer to pull the truck out of the bog. The plaintiff then called Ted Mouritz the day‑shift leading hand, on the two-way radio and asked him to come to the site to supervise the bulldozer pulling the truck out. The plaintiff stayed seated in the cabin the whole time. He believed, based on previous experience that the boom would creep up or down if he was not there to man the hydraulic lift. He considered that if the position of the boom changed and it was not corrected the truck would fall to the left. He knew that he was in a dangerous position but considered that if he got out of the cabin at that time then the machinery would topple over.
Mr Mouritz arranged for a thick wire rope ("sling") to be brought from the workshop and to be hooked onto the front pin of the truck. The second defendant offered to drive the truck and the first defendant took over the manning of the bulldozer. The positioning of the sling was unsuccessful and Mr Mouritz directed that the sling be re‑attached to the right front side of the truck. Once this had occurred, the plaintiff said into the two-way radio "Are you ready to go – just tell me – and when you start to move off, tell me, so I can use the bucket to walk along on the left hand side of the truck."
The plaintiff said this because he believed that if he lifted the bucket up prematurely then the truck would tip over to the left. Mr Mouritz directed the truck and the bulldozer with hand signals. Although nothing was said to the plaintiff the truck took off. The plaintiff only remembers falling off the back of the truck while in the cabin of the excavator, a fall from a height he estimates at between four to seven metres. As he was falling the plaintiff realised that the boom would fall on the cabin and he pulled it behind him so that the boom would hit the dirt bench. The cabin was falling to the left so the plaintiff lent to his right and braced himself for the fall. The plaintiff ended up in a daze. Once the dust had settled, Mr Mouritz motioned to him and helped him climb through a small broken window. The plaintiff had cut his hands on broken glass and believed he had hit his head because it hurt under the helmet strap. Mr Mouritz asked him if he was okay and he responded by pointing to his back and saying that at that time he felt pain in his lower back. Mr Mouritz took him to the site office, where Tim Nuttall, the project manager, and Neil Mouritz, the second in charge of Dominion Mining, filled out the incident report with him and arranged to take him to the Meekatharra Hospital. The plaintiff recalls that just prior to being taken to hospital, but after they had left the office, Mr Nuttall asked him not to go on LTI. He understood this to be a request not to apply for workers compensation because it would affect the third defendants' lost time from injury record and the third defendants would forego an incentive payment.
The plaintiff was seen at Meekatharra Hospital that morning. No x‑rays were taken and he returned to work on 12 December 1994. He described how his back was sore after the accident but he tried to cope with it himself and thought that he could fix it himself. After returning to work, Gary Page, a leading hand on the site, told him that if he had too much time off he would lose his job. At that time he was supporting a wife and two small children and it was for that reason that he chose to say nothing about the pain.
Apart from seeing a physiotherapist in Geraldton in the beginning of February 1995, a general practitioner in Meekatharra on 20 and 23 January 1995, receiving massages from his wife and taking pain killers orally, he did nothing else in relation to his injury.
He returned to work after three days and had a few days off heavy machines before he was trained for a leading hand position.
The third defendant introduced a low‑loader spreader system after December 1994 that ensured that the excavator sat centrally on the back of the loader when transported.

Subsequent accidents

The plaintiff admits that after the 9 December 1994 he had other work related accidents, relevantly:

6 February 1995

The plaintiff was operating a PC1000, a bigger excavator than that operated on the 9 December 1994. The bucket became caught on a big rock. This was a regular occurrence and nine times out of ten the bucket would lift the rock up. On this occasion, the release of the rock threw the excavator back and the plaintiff was jolted. He had his seatbelt on at that time. He went to the Meekatharra Hospital and required some time off.

29 August 1996

The plaintiff was climbing up the stairs to the excavator cabin and felt a slight crack or pop in his back. He had time off work and was subsequently placed on light duties for a period of time.

30 November 1996

During a smoko break, the plaintiff got into a truck that was hit by an excavator. It shook him around a bit and aggravated his lower back.

29 May 1997

The plaintiff's feet slipped when he was going down the stairs from the excavator cabin and he landed forcefully on his buttocks on the top step. This aggravated his lower back.

Additionally, on one occasion the plaintiff injured his hand at work and in 1998 he hurt his lower back when carrying his young daughter after she had injured herself.
In each of the reports in relation to the work related incidences, he described his occupation as "excavator operator" or "digger operator". On all occasions, bar 30 November 1996, he was operating an excavator at the time of the incident.
At no time in his evidence did the plaintiff state that he worked full‑time as a leading hand. The plaintiff responded enthusiastically to questions about his performance in the workplace reflecting a commitment to his duties on site.

Effects of the accident of 9 December 1994 – plaintiff's evidence in relation to symptoms

The plaintiff gave evidence that after 9 December 1994 the pain in his lower back became progressively worse and following the incident of 29 August 1996 at Laverton, he started to experience headaches that were like bad migraines. At times he needed to be hospitalised at the Laverton Hospital and required suppositories and injections for the pain. In 1996 he reported the pain to Alan Gordon, site manager for the third defendant, and consulted Dr Nadan in Kalgoorlie and was subsequently placed on light duties. He also required sick leave and seven days annual leave for physiotherapy.
In 1997, his condition continued to deteriorate and he was transferred on light duties to Greenbushes until, in 1998, he was considered unfit for work.

Personal circumstances

The plaintiff was married to Phyllis on 26 September 1987 and they had two children, Luke now 16 years of age and Shanee now 14. Phyllis cared for the children on a fulltime basis while they lived in Meekatharra. He and Phyllis agreed to share the housework on a 50/50 basis, however, given the hours that he worked he estimated that he probably assisted for one and a half hours per day around the house and caring for the children.
After the accident, he gradually became less able to assist around the home and did not contribute to the housework.
Prior to the accident, the plaintiff jogged five kilometres three times per week and played football on an informal basis and enjoyed playing golf. He also played basketball as a reserve each fortnight during the basketball season. Although he had injured his ankle prior to December 1994, this did not impact on his ability to play and enjoy sport.
After December 1994, he attempted to jog on one occasion but found it to be too painful and he was unable to return to any sport.
The plaintiff was also unable to play basketball or kick a football with his son and he considers that this has affected his father/son relationship. His daughter enjoys going shopping in town and he has been unable to take her as often as she would like because of his physical condition.
Prior to 1994, the plaintiff also went gold prospecting with his father. Although after December 1994 he continued to go prospecting, he would remain in the car and ceased to take an active role.
When the plaintiff worked at Greenbushes, the family lived in Bridgetown and after he stopped working in 1998 his wife started to work as a factory hand in the area. Phyllis was diagnosed with breast cancer at that time and the family moved to Bunbury so that she could be closer to medical treatment. She was off work for a period of two months for surgery and medical treatment and then returned to her work as a factory hand. He was unable to assist with the cleaning, washing and gardening at this time and could only assist in the preparation of evening meals. When his wife became too ill to carry out the home duties, his parents came from Geraldton to live with his family and his mother carried out the home duties and his father tended the garden. Phyllis was diagnosed with a brain tumour and passed away on 31 October 2000 at the age of 32 years. His parents continued to live with him and the children in Bunbury and in 2003 he moved with the children to Geraldton. He and the children lived initially with his parents and then moved to his brother's home. They have recently moved to new accommodation. He estimates that his mother and father assist him and his children for a total of approximately 10 to 15 hours each week by performing housework, taking care of the garden and assisting with the children.
After the accident and prior to his wife's death, the plaintiff was embarrassed and disappointed that he could not fulfil what he considered to be the man's role in the couple's sexual relationship. The sexual relationship between him and his wife gradually diminished until approximately five months prior to her death when, due to her terminal illness, the sexual relationship ceased altogether. He now has no interest in sex because of the pain that he suffers. The plaintiff was clearly emotionally distressed in giving evidence about personal matters and his genuine concern for his family was evident.
The plaintiff also confirmed that he takes prescribed medication on a daily basis to assist with the pain and he has difficulty sleeping. He continues to seek ongoing medical assistance.
The plaintiff's demeanour is that of a likeable, honest man who struggled to find words to describe his circumstances in a manner consistent with his limited education.

Evidence of Timothy James Nuttall

Mr Nuttall, who was called by the second defendant and third defendant, was the project manager for the Paddy's Flats operations of the third defendant between February 1994 and June 1995 and was responsible for the day to day supervision of the employees, including the excavator drivers. The excavator drivers were required to have a ticket that was issued by a mine site operator who came onto the site on an almost monthly basis and conducted a short test in the pit to make sure that the operators knew what they were doing. Mr Nuttall had an excavator's ticket and would operate equipment on a daily basis to relieve excavator drivers for breaks. He did not consider himself to be as skilled as the experienced permanent excavator operators, including the plaintiff. The plaintiff was well known to him and in his opinion the plaintiff was one of the best excavator operators because he was skilled and reliable and could operate all of the machines.

Nine pits were operational on the Meekatharra mine site in 1994 and at any time two or three would be being worked. The location of the working pits changed from shift to shift and the distances between the pits was large. There were two ways of moving excavators from pit to pit and the choice of the method was a matter to be determined by the individual excavator operator. Excavators could be walked, however this was a slow process because of the distances between pits and it also caused wear and tear on the equipment. The alternative was to put the excavator on the back of the truck and drive it to the pit site. There was no written procedure in relation to the movement of excavators until after December 1994. Mr Nuttall stated:
"Without solid guidelines, we would leave it up to people to make an assessment at the time. If they haven't got anything to assess it against then you sort of leave yourself open to people making their own call as to what they see as suitable or not suitable."
Mr Nuttall was never transported in the excavator cabin and always moved to the cab of the truck. Although the excavator was quite secure when the truck was stationary he considered that, given its weight, once the truck started moving there would be no control. He agreed that over a long distance and a bumpy road the hydraulic system did not prevent the excavator bucket from moving to the ground and that this may require the driver to get back into the excavator cabin and move the bucket and then return to the truck cab.
On 9 December 1994, Mr Nuttall was notified of the accident and observed the excavator on the ground with the truck in front, as shown in photographs (exhibit 2). He said it was obvious to him what had happened, although he was unaware that the truck had been bogged and that one of the wheels was in the air. It was his understanding that the truck had difficulty proceeding and that an option at the time was for the truck to reverse back to the bench or, alternatively, to be assisted back to the bench by the operator reaching backwards with the bucket and assisting the truck to reverse. He did not comment on the potential danger to the digger driver if this course was followed or whether this course would be possible if the truck was bogged.
Soon after the accident Mr Nuttall saw the plaintiff, who looked a bit shaken and he asked if the plaintiff had any injuries and noted that the plaintiff replied "no". He described the plaintiff having glass in his hair and shaking shards of glass off him consistent with kicking out the window. Although in a signed statement dated 18 November 2005, the date upon which Mr Nuttall gave evidence, Mr Nuttall had stated that he was unsure whether there was anything said by the plaintiff in relation to having a sore back, he was emphatic in evidence that the plaintiff had not referred to his back because he reasoned it would have been inconsistent with his recollection of the plaintiff's request to go straight home rather than to go to the hospital. Mr Nuttall did not give any evidence about the plaintiff having cuts to his hands or of observing any other injuries.
Mr Nuttall asked the plaintiff to go to the office to prepare the initial accident report and he then took the plaintiff to the Meekatharra Hospital. The first accident report noted that the plaintiff was rostered to come back on shift the next day and Mr Nuttall who was responsible for the allocation of shifts confirmed that this was accurate. Accordingly, the plaintiff did miss time off work by returning to work three days later rather than on the next day.
After the accident, the third defendant introduced the low loader to move excavators and banned the movement of excavators on the back of a truck. This was not a successful procedure and most excavators were then walked from pit to pit. Guidelines and memos (exhibits 17, 18 and 19) prepared in the week following the accident acknowledged that there had been no system. Although an excavator operator may have been considered an experienced operator by the third defendant they were not provided with a training programme or guidelines in relation to the appropriate way to move an excavator. The lack of supervision by a leading hand was seen to be a contributing factor to the accident and it was noted that all parties should have stopped and considered the position rather than hurrying.
Mr Nuttall denied saying anything to the plaintiff in relation to lost time injuries because it would be morally wrong to do so and also because there was a requirement that a report be prepared for the Mines Department about the accident. Lost time injury awards were received by all workers and were comprised of items such as wine glasses or towels with a value of under $20. Mr Nuttall conceded that a safety record was important and agreed that it would not surprise him if it had been the plaintiff's belief that his injury should not be reported because of the effect of lost time injury.
Mr Nuttall agreed that after 9 December 1994 the plaintiff was retrained as a leading hand. This was not only because of the accident but mainly because a leading hand was needed and the plaintiff had the experience and skill to take up the opportunity. Although Mr Nuttall could not particularise the dates he was aware that the plaintiff had had a couple of days off work because of sickness due to his back and he believed that retraining as a leading hand was a way to help the plaintiff get back to work quicker. The plaintiff filled in as a leading hand for a full week if the other leading hand was on "time off" however Mr Nuttall considered that the plaintiff's primary role was still that of an excavator operator. Mr Nuttall agreed that the estimated damage to the vehicles involved in the accident of $120,000 was significant.

Evidence of Edward Keith Mouritz

Mr Mouritz, a mature earnest witness called by the plaintiff, had worked for a significant period in the mining industry and is still employed as a grader operator. He worked for the third defendant from 1987 until 2002, initially as a grader operator and from 1989 as a leading hand. He described the plaintiff as a shy person, who had worked for him on occasions and he found him to be an excellent worker who did what he was asked to straight away and was a good operator.
On 9 December 1994, Mr Mouritz received a call from the plaintiff on the two‑way radio to go to the pit and saw the plaintiff sitting in the excavator cabin on the back of the truck with one of the wheels of the truck slightly off the ground because a back wheel was bogged. After the bulldozer unsuccessfully pulled the truck, Mr Mouritz gave instructions for the sling to be re‑hooked on firmer ground to the right hand side of the truck. He cannot remember whether he gave instructions to start moving or whether the truck started moving on its own accord however the excavator almost immediately fell off the back of the truck. He described that all of the excavator's windows were broken in the fall requiring the plaintiff to kick out the safety glass. After assisting the plaintiff out the plaintiff said to him "my back is a bit sore" and the plaintiff put his left hand around his back to rest on his right lower back. Mr Mouritz then resumed his duties and left the plaintiff in the care of senior management.
For three to five years prior to December 1994 on the Meekatharra site, excavators had either been moved by walking them from one pit to another or by putting them on the back of a truck with the excavator driver remaining in the excavator cabin. After 9 December 1994, the third defendant had purchased the low loader that enabled the excavator to be chained and the driver to be transported separately. After the accident occurred, Mr Mouritz considered that in hindsight a safer alternative would have been to put dirt behind the excavator so that the excavator could have backed off the truck however, he did not consider this on the day.
Mrs Yvonne Margaret Simpson, who had worked with the plaintiff at the Meekatharra mine site, substantially corroborated Mr Mouritz' evidence in relation to the manner of moving excavators prior and subsequent to 9 December 1994.

Evidence of Ms Kirsten Summers, Rehabilitation Counsellor with Country Wide Injury Management

Ms Summers provided five reports in 1998 in relation to the plaintiff and confirmed that he relocated to Greenbushes in February 1998. He was involved in a return to work programme as a pit cam operator in March 1998 whereby his hours were to be extended from six hours per day for one week, to 12 hours per day in the following week. In the interim, he hurt his back when carrying his daughter and was ultimately certified unfit for work. By 18 June 1998, the pit cam work was no longer available because the third defendants' contract was not renewed.
Although she considered that the plaintiff should look for other employment she noted that he had very limited ideas of other vocational options and that he appeared somewhat distracted by high levels of pain.

The plaintiff's injuries

The outpatients' notes of the Meekatharra Hospital (exhibit 11) reflect that on 9 December 1994 on examination the plaintiff presented with some cuts on his hands and a painful back. Jarred and soft tissue injury are recorded. On 20 January 1995, it is noted that the plaintiff returned because of back and neck pain from the same injury. The notes record "short relief from massage. Neck keeps clicking. Neck stiffness, discomfort for one week after accident."
Three days later the Meekatharra Hospital notes record "lower thoracic discomfort and referral to physiotherapist in Perth. No localised tenderness to palpation. Medication, exercise and physiotherapy is recommended." The report of Ms Colleen, Geraldton Physiotherapy Clinic (exhibit 13) is dated 1 February 1995 and refers to thoraco lumbar pain, bi‑lateral cervical pain and peri‑orbital headaches. Flexion and extension is noted to produce the presenting lumbar pain. Palpation "tender" is noted.
The Meekatharra Hospital's out‑patients' notes for 6 February 1995, the date of the digger jarring incident, record that the previous injury was completely resolved, however, it is noted that lower back pain is in the same place as before. A further review on 18 August 1995 refers to the previous injury as being the December 1994 incident.

Evidence of Mr Narula

Mr Narula, neurosurgeon, saw the plaintiff on referral from his general practitioner, Dr Dewing, on 8 April 1998 and continued to see the plaintiff accompanied by his wife twice each year from that date until 2000. He subsequently saw the plaintiff twice in 2001 and once in both 2002 and 2005.
Mr Narula assessed plain x‑rays of the plaintiff taken prior to December 1994 that showed sclerosis of the lower lumbar and lumbo‑sacral facet joints and mild anterior lipping at the lower end of the L4/5 disc. This indicated a degenerative condition that would have developed over time, particularly given the nature of the plaintiff's employment. Mr Narula's prognosis was that the degeneration indicated that by his mid‑forties the plaintiff would have needed to turn to light duties in any event. He noted however that at the age of 28 years the condition had been compounded by the incident of December 1994.
Mr Narula took a detailed history of the December 1994 accident. He considered it to be a very heavy fall that included rotational forces on the spine initially causing an injury to the neck and the back with the back symptoms becoming progressively worse. On initial examination, Mr Narula found bi‑lateral para‑spinal tenderness on the L4/5 and L5/S1 facet joints. Spinal flexion was reasonably normal but extension was restricted and with rotation caused pain down the right lower limb. His assessment of an MRI scan showed fluid in the joint space of the L3/4 and L4/5 facet joints. A subsequent bone scan showed evidence of greater uptake in the right L5/S1 facet joint with associated bilateral increased uptake at L3/4 and L4/5. He concluded that these facet joints were actively inflamed. He also noted that initially when facet joint injections were given to the plaintiff the plaintiff had experienced months of improvement. Diagnostically, this indicated that the damage was to the facet joint because the relief was significant and lengthy. The fact that subsequent facet joint injections and nerve blocks did not provide the same relief did not negate the diagnosis but it did suggest that the nerves may have regenerated or taken different paths so that the plaintiff no longer received relief from the injections.
Although the plaintiff's pain score had varied over the years from 3‑out‑of‑10, to 8 to 9‑out‑of‑10, most of his symptoms had remained the same. He had complained of pain in his lower back and right lower limb. Episodically, he had symptoms that had been worse on the left side with shooting radiating pains into both the lower limbs and he had experienced symptoms in the right groin, anterior thigh and medial calf. In 2005, the plaintiff presented with ongoing pain in his lower back which became worse when standing for long periods. This resulted in his feet going to sleep and associated groin pain radiating down to the posterior calf and into the right toe. Mr Narula noted a subjective sensory distribution hypo‑aesthesia in the L3/4, L4/5 and L5/S1 dermatomes on the right side. Mr Narula measured the right leg and found that it was six centimetres smaller above the knee than the left leg and that the left calf was two centimetres smaller than the right. He diagnosed this as being from autonomic involvement consistent with the areas affected by L3/4, L4/5 and L5/S1 rather than from muscle atrophy. The plaintiff's difficulty in bending backwards and to the side when he was able to bend forward was also consistent with the lower back problem diagnosed by Mr Narula.
As a result of the clinical examination and assessment of the radiology, Mr Narula concluded that the damage was to the identified facet joints rather than to the discs themselves. He considered that there was a need for a further MRI scan to rule out the possibility of autonomic involvement and to ensure that spinal canal stenosis in the form of natural recess narrowing had not occurred. In his assessment, the plaintiff's symptoms were of a severe nature and the prognosis was poor. The injury from 1994 had been aggravated by subsequent injuries. He did not consider that surgery was likely to be necessary in the future unless a further MRI scan indicated compression that had not been identified to date. The facet joint injections were no longer effective and he was not confident that they would be effective in the future. He considered that the plaintiff would require prescribed medication for the rest of his life.

Evidence of Dr Lambasa

Dr Lambasa, general practitioner from Kalgoorlie, saw the plaintiff from 30 August 1996 until 5 November 1997. The history set out in a 1996 report was consistent with the accident of 4 December 1994 however it was attributed to the date 6 February 1995. Dr Lambasa was unsure whether this was a typographical error or a misunderstanding in relation to information received from the plaintiff or the third defendants. Dr Lambasa noted that the plaintiff's back pain had never completely subsided since the date of the accident that had been described. Dr Lambasa believed that the lower back complaint originated from the accident on the excavator and that the reason that it did not settle was because the plaintiff kept returning to plant operating duties without giving his back adequate time to rest. The vibrations in the cabin were responsible for aggravating the pre‑existing back pain that had reached the stage of chronic inflammation in the lower back region indicating a facet joint problem. A review of the plaintiff's CAT scan indicated that there was some degenerative wear and tear in the L4/5 facet joint. He recommended a facet joint injection together with light duties for a period of less than two to three weeks. On 6 October 1996, the plaintiff presented as virtually pain free and Dr Lambasa concluded that the facet joint injections had been successful. He recommended that the plaintiff lift a load of no more than 15 kilograms and avoid working on large plant equipment in the first week and that in the second week he return to drive on soft sand only. He strongly recommended that the plaintiff attend hydrotherapy in the local pool. Light duties were required because once a back injury occurs, some element of weakness and instability remains during a window period and there is a high risk of recurrence.
On 2 December 1996 Dr Lambasa completed a first medical certificate in relation to the incident of 30 November 1996 when the plaintiff was in a truck that was hit by a digger bucket. He diagnosed a flare‑up of the existing back injury and diffuse moderate muscle strain throughout the neck, back and hips and recommended light duties, physiotherapy and anti‑inflammatory medication. The progress reports completed over the following days referred to some muscular pain persisting. By 9 December 1996 he noted very minimal tenderness and assumed that the plaintiff would make a full recovery, however he likened the L4/5 injury to a smouldering fire that could flare up.
Dr Lambasa also completed the first medical certificate in relation to the plaintiff's accident on 29 May 1997 when he fell on his buttocks and experienced back pain. The diagnosis was that the L4/5 and L5/S1 facet joints were very tender bilaterally. He arranged for a facet joint injection that led to an improvement that continued until after September 1997. On 21 October 1997 Dr Lambasa noted a flare‑up again after the plaintiff had experienced a long rough road trip to work. A CAT scan and plain x‑ray indicated that there had been no deterioration for a period of 18 months and accordingly he concluded that the facet joint and soft tissue injury had been re‑aggravated. Dr Lambasa noted a 50 ‑ 60 per cent improvement and by 5 November 1997 he reported that the plaintiff was virtually pain‑free and was awaiting vocational re‑training with a recommendation that he continue to perform light duties.

Evidence of Dr Gillett

Dr Gillett, occupational physician, initially examined the plaintiff on 16 May 1996 and then twice in 1998 and once in 2001 at the request of the defendant's solicitors. Prior to the initial consultation, the plaintiff was asked by Dr Gillett's staff to write a history of his condition. Dr Gillett then took his own history and stressed it was important not to rely on correspondence alone to obtain a history because of possible inaccuracies. The history recorded by the plaintiff and taken by Dr Gillett referred factually to the incident that occurred in December 1994, however, the plaintiff advised Dr Gillett that this had occurred on 6 February 1995. Dr Gillett did not make a comment in relation to the date of 9 December 1994 as the plaintiff could not recollect it. Although Dr Gillett saw the plaintiff four times, he did not revisit the initial history because he had no reason to doubt its veracity. His notes from the consultation of 16 May 1996 included: "As the truck moved off, however, the boom over‑tipped and the digger tipped along with the tray of the truck."
He did not clarify the surface onto which the digger had tipped and did not dispute the proposition that the excavator cabin fell onto the tray of the truck yet he agreed that the mechanics of the fall were quite relevant to the expected trauma. He was not aware of the ergonomics of the cabin design and believed that the plaintiff would not be facing the front in this situation. He agreed that he expected, and that was partly why he probably thought, that the plaintiff suffered a soft tissue injury from the initial incident. On examination in 1996, the plaintiff was able to dress and undress with relative ease and was able to get on and off the examination couch with no obvious difficulties. The plaintiff was able to flex forward to mid‑shin level and had a good range of lateral flexion both on the left and the right. The plaintiff had extension to 15 degrees in his lumbar spine. There was an area of tenderness overlying the L4/5 disc centrally. The extension shown by the plaintiff was normal. Examination of the lower limbs showed normal tone and sensation. Deep leg raising was to 85 degrees on both sides and Dr Gillett noted that deep tendon reflexes were brisk and planters were going down consistent with muscles attributed to L5/S1 being normal. He did not consider that there was evidence of neurological impairment. Dr Gillett reviewed a plain film x‑ray and was advised that a CAT scan had been taken however he did not view it. He noted the reported results as normal.

In 1996 Dr Gillett's opinion was that the back pain had no apparent origin and was without physical cause. He believed the plaintiff's discomfort was genuine but also believed that it would pass with time and he recommended an exercise regime. He concluded that the plaintiff did not have symptoms related to his employment with the third defendant based on the history given by the plaintiff, the clinical examination and subsequent investigations, the information about a CAT scan and the viewing of the plain film x‑rays.
In a report dated 14 April 1998, Dr Gillett referred to the incident in May 1997 when the plaintiff fell on his buttocks in the course of operating machinery at Laverton for the third defendant. He noted that the plaintiff experienced soreness and that the symptoms gradually eased but the pain had not totally abated. Dr Gillett was unable to identify any evidence of neurological impairment in the lower limbs and diagnosed chronic pain syndrome for which there was no appreciable cause. Dr Gillett assessed the plaintiff as being a co‑operative male who was not devious and whose responses were truthful and genuine. He concluded that the objective clinical findings were consistent with the subjective presentation but that he was unable to identify specific physical causes. Given the self‑stated pain of the plaintiff, Dr Gillett determined that the plaintiff had not fully recovered and supported him undertaking a part‑time graduated alternative return to work programme.
Dr Gillett also noted in April 1998 that the plaintiff had received 11 facet joint injections and that he had received some relief from two. Dr Gillett did not receive or request any specific information in relation to the location of the injections, the length of time during which pain abated and the grouping of the injections. Dr Gillett did not question that benefit had been derived from two injections and that the plaintiff had experienced a reduction in pain. He considered that patients vary in relation to the relief or aggravation that they receive from facet joint injections. Dr Gillett was not shown any MRI scans that showed fluid in the facet joints, nor had he seen discography of a bone scan relating to the plaintiff.
In a report dated 30 June 1998, Dr Gillett referred to the incident of April 1998 when the plaintiff carried his daughter and noted that the plaintiff said that this had caused substantial disruption. On examination, he noted an exaggerated positive axial compression test, one of the Waddell tests that was carried out on the plaintiff, consistent with poor outcome and focus on disability and he was unable to identify a contributable cause. Dr Gillett diagnosed that a muscle strain injury or a joint strain may have caused the pain.
In his final report of 6 February 2001, Dr Gillett recorded that the plaintiff walked with the assistance of a crutch to the consulting room and stated that his condition had continued to deteriorate. On examination, Dr Gillett found that the plaintiff was able to walk unaided and get on and off the examination couch unaided at a height of approximately one metre. Dr Gillett considered that the crutch did not provide any assistance to the plaintiff and was a poor prognostic tool. He did not consider that the plaintiff required any further medical treatment and that he would receive little benefit from taking medication. Dr Gillett did not see any test results subsequent to the consultation in 2001.

Evidence of Dr Finch

Dr Finch, pain specialist and anaesthetist, saw the plaintiff initially on 14 May 1998 on referral from Mr Narula and continued with consultations over a period of approximately eight years. Dr Finch considered that he came to know the plaintiff well and had met members of his family. Recently, the plaintiff has consulted Dr Finch on 25 October 2005 and 2 and 7 November 2005. The history given by the plaintiff to Dr Finch was consistent with the plaintiff's evidence and included a history of injuries received subsequent to December 1994. On initial examination in 1998, Dr Finch noted dural tension signs were positive on the right sciatic stretch test causing pain to radiate into the plaintiff's calf and he noted possible mild hypalgesia to pain over the lateral aspect of the right calf consistent with L5 nerve root irritation to the right lower limb. The plaintiff was tender over the L5/S1 segment and Dr Finch diagnosed mechanical low back pain possibly originating in the L4/5 segment. Given that previous facet block injections had been successful, Dr Finch suggested placing local anaesthetic onto the nerve supply to the identified facet joints. In May 1998, the plaintiff was assessed as being able to perform five hours work per day, five days per week. However, he was unsuited to his previous tasks of working with heavy machinery.
In June 1998, Dr Finch noted that the anaesthetic block to the nerve supply to L5/S1 had not been successful.
In August 1998, the plaintiff advised Dr Finch that he had carried his daughter a distance of 300 metres but Dr Finch did not consider that this had changed the plaintiff's condition. On examination in August 1998, a positive right sciatic stretch test and changes maximal to the lateral right calf were noted. Dr Finch suspected that an annular tear causing an L4/5 segmental problem with nerve root irritation accounted for this and he requested discograms for L4/5 and L5/S1. In October 1998 the results of the discograms appeared normal. On examination, the plaintiff had pain tenderness confined to the lumbo‑sacral segment. The plaintiff still had ongoing mechanical low back pain with referral to the right lower limb, but without significant neurological abnormalities. Dr Finch considered that the origin of the pain was unclear and further treatment was not envisaged at that time.
On 20 July 1999 Dr Finch reported to Dr Dewing after reviewing an MRI scan, that although minor changes in the facet joints at L5/S1 were noted there was no explanation for the apparent right L5 radicular pain. Although the MRI test did not show any damage, Dr Finch considered that it was possible to have a false positive MRI and that the plaintiff would continue to have problems with the L4/5 disc. In Dr Finch's opinion prolonged sitting would increase the pressure on the plaintiff's disc and push the disc out in a way that irritated a nerve. The plaintiff's history was that he experienced less pain when lying down and that his pain was aggravated when he was sitting up. Dr Finch noted this to be a common complaint in relation to disc problems however there was no equipment in Australia to perform an MRI when the patient is sitting, as opposed to lying down.
On 20 July 2001 on examination the plaintiff had a gross antalgic limp favouring the right lower limb. He had a positive right sciatic stretch test causing pain to radiate to the knee and hypalgesia over the lateral right thigh and calf as far as the right first web space. The relevant nerve root for this area goes past the L4/5 and L5/S1 joints. L5/S1 is the next disc down from L4/5 and it is hard to distinguish clinically which disc is causing the problem as both can cause irritation to the L4/5 nerve root.
In 2005 Dr Finch noted that the plaintiff had a gross antalgic limp favouring the right lower limb. He could reach the proximal shin in lumbar flexion but used his thighs for leverage to return upright. Dural tension signs were positive on the right causing pain to radiate to the right calf. He was tender over the L4/5 segment. There was hypalgesia over the right buttock and the medial aspect of the right calf. Rotor power appeared mildly diminished with mild plantar flexion of the right foot but reflexes were intact. The dural tension suggested to Dr Finch that there was an irritated nerve however, given that the motor reflexes were normal, there was no significant paralysis of the nerve. The sensory changes to the right calf indicated to Dr Finch that the L5 nerve root was dysfunctional or irritated. Dr Finch had always suspected that the plaintiff had an L4/5 segmental problem with nerve root irritation to his right lower limb. An updated MRI of October 2005 showed minor disc space narrowing at L3/4 and L4/5 with end plate lipping. There was reduced signal in the L3/4, L4/5 and L5/S1 discs but no obvious annular tears. Although tears were not shown, it was his view that with repeated discography in the future, tears would show up. He estimated the cost of repeat discography to be approximately $500.
Dr Finch concluded that the plaintiff had suffered an internal disruption of the L4/5 disc causing ongoing low back pain which is easily exacerbated by activity and permanently prevents the plaintiff from working. The internal disruption which was not really apparent to date from scans would eventually become clear and would require specific treatment, possibly a surgical approach (however, Dr Finch took a conservative view of this). He concluded that the plaintiff suffered an internal disruption of the L4/5 disc because the sensory numbness and paraesthesia is diagnostically related to that particular segment of the spine. There was evidence of degeneration in the disc from the anterior lipping shown on the MRI of 2005 and fluid on the joints indicating degeneration and that the joint was not "happy". His assessment of a bone scan had also indicated that the L4/5 disc was metabolically more active probably due to degenerative changes. His diagnosis was presumptive because the five modalities that he had reviewed, being plain x‑ray, CAT scan, MRI scan, bone scan and discography had not disclosed any clear injury, however, he had examined the plaintiff on a regular basis over an eight year period and had repeatedly considered the history, his findings on examination, some subtle changes in the imaging and the result of discography and, given his experience as a pain management specialist for over 30 years, he was confident in reaching his conclusion.
Dr Finch considered that an internal disruption to the L4/5 disc was more likely than an injury to the facet joint, because young people such as the plaintiff are more likely to experience discogenic pain than facet joint pain. He also considered that the plaintiff was more likely to have injured the disc than his facet joint from the fall, although he agreed that he could have injured his facet joint and that often the disc goes first and then the facet joint damage is secondary. He did not consider that there was a direct connection between work and degeneration of the disc because factors such as genetics and environment also needed to be considered.
In Dr Finch's opinion, the most likely cause of the injury was the accident of December 1994 rather than the jolting of February 1995. He agreed that an injury of this type was possible from the sort of jolting that occurred in February 1995, however he stated:
"If you look at the two incidents, the first one was far more violent. I gather he fell five to six metres which is a hell of a thump. He had a heavy fall and this has exacerbated matters … that's what happens with these people and they get pain on and off over years."
Dr Finch was strongly of the view that the plaintiff did not suffer from a psychological problem and that although the plaintiff's presentation with pain behaviour in 2005 was noted as being fairly florid, he had come to know the plaintiff and his family pretty well over the years and he did not think that he embellished things greatly. He believed that the pain behaviour exhibited by the plaintiff was indicative of him being a bit distressed and trying to communicate his pain. The use of a walking stick that Dr Finch discouraged, was used as a means of saying "I hurt". Dr Finch had repeatedly advised the plaintiff to exercise to allow the injury a greater chance of recovery through blood flow and believed exercise would encourage him to adopt a positive psychological outlook. Treatment by medication would continue to be required in the future.

Evidence of Mr Brash

Mr Brash, orthopaedic surgeon, saw the plaintiff for assessment and report on 25 June 1998 and 27 March 2001 at the request of the defendant's solicitors. It was Mr Brash's practice to direct his secretary to request that a pain diagram be completed before the assessment commenced. There was no evidence that Mr Brash supervised the drawing of the pain diagram, nor was the plaintiff questioned in relation to its preparation or the involvement, if any, of his wife who attended the appointment with him. Mr Brash described the initial history set out by the plaintiff and his wife as being vague and uncertain in relation to the exact dates (exhibit 23.1) of the incidents following the alleged initial injury. Mr Brash also noted in his report dated 30 June 1998 that "He states there was no visible bruising, but he pointed out with a smile that his skin is dark. Mr Brash had noted that between December 1994 and February 1995 the plaintiff had some low back pain but he had returned to work three days after the accident on 9 December 1994 and he had kept working until 17 February 1995 when he had seen a general practitioner and a physiotherapist and had then returned to work on the excavator. The history recorded in 1998 included that the plaintiff did not have any right leg pain until some time after October 1995. On the basis of the absence of recorded right leg pain Mr Brash concluded that the plaintiff did not have sciatica and that his pain could not be attributed to the accident of December 1994. Mr Brash noted that the plaintiff had received eleven facet joint injections. The precise location of the injections, the dates on which they were administered and the number administered at one time were matters not known to Mr Brash. The finding of decreased sensation to touch and light pinch in the right lower quadrant including the back and front of the right side of the abdomen and the back and front of the whole of the right leg and the manner in which the plaintiff recovered from the flexed position led Mr Brash to conclude that there was no anatomical basis for this altered sensation and he diagnosed hysterical or psychogenic "glove and stocking" hypo‑aesthesia. Mr Brash did not note any muscle wasting, however he relied on an eyeball assessment and did not measure the muscles of the leg. There was some degree of inconsistency in leg raising from a seated position to the lying position that resulted in 90 degrees on the left and about 70 degrees on the right but he did not consider that this was related to any organic or functional factors. The MRI scan of 26 February 1998 being the only MRI scan considered by Mr Brash, was normal. Diagnostically, the plaintiff's pain drawing was abnormal because there was no anatomical cause for the areas of pain that he depicted. In Mr Brash's opinion, the plaintiff could have suffered a soft tissue injury and jolting, but there was no pathology to account for his ongoing symptoms and he was declared fit for full activities of daily living, including working fulltime as a plant operator.
On the second assessment of 27 March 2001 Mr Brash noted on examination an inhibition in the movements of the right hip however, when distracted, the plaintiff showed full range of motion. He also noted the discrepancy in flexibility, the decreased sensation in the whole of the right lower quadrant and the use of a walking stick from which he diagnosed a well entrenched abnormal illness behaviour. He was not shown any x‑rays or scans which, to his recollection, showed any fluid in the facet joints.

Evidence of Mr Schaeffer

Mr Schaeffer operated as a specialist neurosurgeon from 1957 until 1994 and he then provided assessments and reports for medico‑legal work until his retirement in 2004. He assessed the plaintiff on 21 August 1998 and 7 February 2001 at the request of the defendant's solicitors. He noted that he received background details from interview with the plaintiff unless otherwise specified in his report however, the date of accident/injury that was noted at the commencement of his report and referred to in the body of the report in respect to the second injury was in error by one year, being recorded as 6 February 1996 as opposed to 6 February 1995. This same incorrect date of 6 February 1996 was also contained in the solicitors' letter to Mr Schaeffer requesting the report. The notes taken at the time of assessment in 1998 referred to the plaintiff believing that his leg pain had commenced approximately two months after the 1994 incident.
The physical examination at each of the assessments took approximately 10 minutes. On physical examination in 1998 Mr Schaeffer noted a moderately positive axial compression and simulated rotation test in that the response to each of these was pain. In examining the lower limbs, he noted a non‑anatomical hypo‑aesthesia on sensory testing of the whole of the right leg that in his view was not consistent with the dermatone supplied by a nerve root from the lumbar spine. Mr Schaeffer noted a moderate degree of inconsistency with the straight leg raising test. In the sitting position, both straight leg raising tests were carried out to 90 degrees very easily, however, in the supine position the plaintiff allowed 65 degrees of movement on the right side and 75 degrees on the left, being a moderate inconsistency only measured by eyeball alone. Mr Schaeffer assessed the plain x‑ray, CAT scan and MRI scan of 26 February 1998 and considered them to be normal. He concluded that the history of the circumstances of the accident was consistent with the existence of some soft tissue back strain in the early stages, but that the presentation was inconsistent with any disc, facet joint or nerve root damage. He assessed the plaintiff as having a capacity to return to work in August 1998.
In his subsequent report of 2001 Mr Schaeffer referred to the plaintiff using a walking stick and described this as a presentation to support that he was an invalid when there was no physical basis for his complaints. Non‑anatomical hypo‑aesthesia on sensory testing over the whole of the right leg was noted again, as were positive axial compression and simulated rotation tests. Straight leg raising of 90 degrees on the left side and 65 degrees on the right was recorded by eyeball however he did not consider this to be a marked difference. Although he did not measure the circumference of the thigh or calf, he did not note any muscle wasting. Specific notes were not recorded of other neurological testing but Mr Schaeffer believed that he would have conducted tests and that he would have recorded any neurological abnormality. Mr Schaeffer assessed an MRI scan, plain x‑rays and a CAT scan of the lumbar spine relevant to 2001 and concluded that the findings were normal and that no significant abnormality was apparent. He concluded that the plaintiff had made a total recovery from the 1994 injury on account of his objective presentation and that there was no true physical incapacity. Mr Schaeffer agreed that he had only examined the plaintiff on two brief occasions and that although he had assessed injured persons, he had only given evidence in relation to defendants in court.

Evidence of Dr Hall

Dr Hall, general practitioner, saw the plaintiff on five occasions from 20 September 1999 to 26 May 2000 and had spoken to him on the telephone on one occasion. The only history of accidents that he received from the plaintiff related to the incident of 9 December 1994 however, he had reviewed the notes of other specialists. The plaintiff presented with greater or lesser levels of symptomatology but the symptoms had always been the same, being lower back pain, reduced spinal movements and pain in his right leg. Dr Hall had assessed the plaintiff as "unfit for work" and "unfit for work" in the future.

Evidence of Mr Alexeeff

Mr Alexeeff, orthopaedic surgeon, assessed the plaintiff on one occasion only on 11 June 2002 at the request of the defendant's solicitors. Prior to the assessment, Mr Alexeeff had directed his staff to request that the plaintiff complete a questionnaire and a pain diagram. There was no evidence of the nature of the supervision in relation to the answering of the questionnaire and pain diagram and no evidence of whether the plaintiff was in company or alone at the time of his attendance at the appointment. Mr Alexeeff summarised the documentation provided by the defendant's solicitors and made notes of a brief history that he stated he had received from the plaintiff. The notes in relation to 9 December 1994 included that the plaintiff had fallen approximately twelve metres and that he had returned to work the following day. In reviewing his notes in evidence, Mr Alexeeff confirmed that he had ticked 'SB' which stands for seatbelt and commented that at some stage the plaintiff was seat‑belted although Mr Alexeeff doubted he would have fallen out of the back of the digger if he was seat‑belted. The history recorded by Mr Alexeeff wrongly notes or concludes that the plaintiff fell out of the excavator, rather than that the excavator fell to the ground with the plaintiff inside. Mr Alexeeff had also noted that the mechanism of the injury was that the plaintiff fell flat on his back to the ground. Twenty facet joint injections were also incorrectly recorded as having been received by the plaintiff.
The oral history noted that the plaintiff complained of morning stiffness and denied having good and bad periods that, in Mr Alexeeff's assessment, would have been consistent with inflammation. The pain drawing was quite illustrative because multiple sites had been marked, including the neck, chest, arms and legs and the picture was inconsistent with simple mechanical back pain. The left foot had been excluded.
The physical examination took approximately 10 to 20 minutes. On examination, the plaintiff walked with an exaggerated gait and his ambulation was assisted by crutches. A decreased rather flat thoracic kyphos, but a well preserved lumbar lordosis was noted. Localised tenderness over the lumbar spine both in the mid line and para‑vertebrally was evident to light touch and deep palpation. Pressure over the right L5/S1 facet joint induced discomfort down the right leg. An assessment of lumbo‑sacral mobility showed a normal measurement of 10 centimetres. The plaintiff had difficulty in forward flexing to reach his knees and there was difficulty regaining the erect position. Hyper‑extension was restricted to less than 50 per cent and associated with subjective pain and right lateral flexion was restricted to less than 50 per cent but left lateral flexion was normal. Lateral rotation was markedly restricted. Although the plaintiff had difficulty climbing onto the examination couch, he was able to straight leg raise to 90 degrees and forward flexed beyond his knees. A single slump test was negative and an axial compression test was positive. A supine straight leg raising was to 80 degrees bilaterally and was restricted only by tight hamstrings. Tension signs were absent. Although Mr Alexeeff did not measure the limbs for comparison of size, he did not record any evidence of wasting of the lower limbs and recorded normal power, tone and symmetry in flexes of both the knees and tendo‑Achillis. Objective sensory assessment revealed decreased sensation to light touch along the medial and lateral borders of the right foot with the dorsum of the foot being spared. There were no sensory deficits above the ankles. When prone the quadricep stretch test was normal but marked discomfort was noted. Mr Alexeeff concluded that his findings were inconsistent with a lumbar spine injury. On light palpation he recorded discomfort in the lower lumbar spine. Deep palpation resulted in tenderness in the midline of L5/S1 and L4/5 and L3/4 and para‑vertebrally there was tenderness in relation to the facet joints bilaterally in the lower lumbar region. He concluded from the physical examination that there was no physical reason why the pain that was noted should have resulted.
Mr Alexeeff reviewed MRI scans from a three year period between 1998 and 2001 and noted that the only significant difference was the presence of mild annular bulging of the L5/S1 disc and some minor changes evident at the L5/S1 facet joint. He considered that there was no evidence of sciatica or disc lesions. In Mr Alexeeff's opinion, the number of radiological examinations indicated that the plaintiff had been over‑investigated and there was no significant bony or discogenic pathology demonstrated, although the MRI of February 1998 confirmed fluid in the L4/5 facet joint bi‑laterally. He acknowledged that the plaintiff had received relief initially from facet joint injections of the L4/5 facet joint however, he considered that more than two injections could potentially damage the joint and inflammation could be caused by damage of this type. He observed some fluid in the L4/5 facet joint bilaterally shown in the MRI scan of February 1998 and confirmed that this can be seen as an inflammatory process however the cause of the inflammation was not particularised. Mr Alexeeff concluded that there was no physical incapacity from a musculo‑skeletal point of view and no reason why the plaintiff could not return to any task or occupation from a physical standpoint. He had not seen the plaintiff or considered reports subsequent to 2002.

Evidence of Dr Berrigan

Dr Berrigan, specialist anaesthetist and consultant in pain medicine, reviewed the plaintiff on one occasion on 30 September 2005 at the request of the plaintiff's solicitors. He did not review any notes, doctors' reports or x‑rays prior to reaching the conclusions contained in his report dated 7 October 2005. Dr Berrigan was heavily reliant on the oral history provided by the plaintiff and concluded that he could not say what the cause of the low back pain was but, in his experience, in most of the cases consistent with the history of the plaintiff the pain started coming from the lumbar inter‑spinal discs or from the facet joints. The history suggested that problems had been pronounced, as they had prevented the plaintiff from working and had not diminished with time. He was unable to comment on whether the low back pain was caused by an accident in 1994 and again in 1995. He noted that it was very common for people who develop back problems after an accident not to really notice them at the time and to report pain hours later, or maybe even the following day. He concluded that this may be attributable to shock.

Evidence of Dr Home

Dr Home, occupational physician, with significant expertise in impairment assessment, assessed the plaintiff on one occasion on 7 November 2005. He described the plaintiff as being a poor historian and he was unable to comment on the issue of causation. In Dr Home's opinion, the plaintiff's chronic pain complaints reflect facet joint pathology. He believed that further facet joint injections would not assist and that the plaintiff will require his current medications indefinitely. Dr Home was familiar with the work required to drive an excavator and assessed that the plaintiff was unfit for work of this type. He reached his conclusion based on relevant clinical findings and substantially from the presentation of the plaintiff. He encouraged the plaintiff to exercise, to take medication and to be reviewed on a regular basis by his general practitioner. Dr Home's prognosis was most guarded, given the history of significant back pain and related disability experienced by the plaintiff over the past six years notwithstanding his ability to undertake selected work over a two or three year period prior to that time.
Dr Home considered that the time taken off work following the accident did not reflect the extent of the injury that may have been sustained because industrial factors and the plaintiff's state otherwise at that time were also relevant. While theoretically the plaintiff could retrain into semi‑sedentary employment to be undertaken on a part‑time basis, the plaintiff did not have any transferable skills for sedentary employment and had only limited educational training. The plaintiff had reported significant sleep disruption and marked sitting, standing, bending and walking intolerances making it difficult for the plaintiff to rehabilitate into semi‑sedentary employment.

Evidence of Ms Gibson

Mrs Kathleen Gibson, the plaintiff's mother, is a 58 year old aboriginal lady who lives with her husband in Point Moore, Geraldton. She was an impressive witness who gave her answers honestly and in an understated manner. Her concern for her son and her grandchildren was apparent and the family is very fortunate to have her support. Prior to December 1994 when the plaintiff and his family lived in Meekatharra, Mrs Gibson and her husband would visit once or twice a year for one or two weeks. At those times she did not observe the plaintiff being in any pain.
After December 1994 they continued to visit for holidays however she is not sure of the precise dates. She noticed that the plaintiff would be in pain and take medication and lie down. He would get up for work and return, have his meal and then go to bed. When staying with the family in Laverton she noticed that his pain appeared to be worse and he was a lot slower than he had previously been. Mrs Gibson assisted the plaintiff's wife with the children and with the housework at this time, and she noticed that the plaintiff did not assist.
After the family moved to Bunbury Mrs Gibson and her husband came to stay with them to help care for the children because the plaintiff's wife had been diagnosed with breast cancer, and the plaintiff had accompanied his wife to Perth to support her through surgery and chemotherapy. The Gibsons stayed looking after their grandchildren until after the plaintiff's wife passed away, and they then continued to remain in Bunbury for a period of four to six months. Mrs Gibson describes the plaintiff lying around and taking pain‑killers more than walking around at this time. She assisted by cooking the evening meals, walking the children to and from school, vacuuming and washing the floors. She also tended to the washing and ironing needs for the children, and she estimated that these tasks took her a total of three to four hours. She and her husband moved with the plaintiff and his children to Eaton, near Bunbury. and she continued to assist in the same manner, however, her husband and she would return to Geraldton for two to three weeks in this period.
The plaintiff and his children moved in to the Gibson's home in Point Moore, Geraldton in February 2002 and Mrs Gibson continued to care for them for eight to nine months. The plaintiff and his children then moved into the plaintiff's brother's home in Withers in Geraldton, and remained there until September 2005 when he obtained accommodation in Jabiru Way, Geraldton. Mrs Gibson described that after the family moved out, she continued to assist in the same way, and this included driving the children to and from school, a task that took approximately 20 minutes. While living with the plaintiff and since the plaintiff had moved to an independent accommodation in Geraldton, her husband had assisted with outdoor tasks such as mowing the lawn, weeding the garden, cleaning the gutters, attending to the car and car tyres, washing the car and checking the engine. I calculate on her evidence that this took between one to two hours each week of Mr Gibson's time.

Was any injury sustained by the plaintiff on 9 December 1994 caused by the driving of the motor vehicle

In July 2000 the plaintiff applied to amend the writ and substitute the statement of claim and to (inter alia) join the third defendant in the action and alleged negligence arising from the employment relationship. There was no relevant disability assessment and the action was stayed against the third defendant until a disability assessment had been made. No application was made prior to trial or at trial in relation to the stay. Although subsequent to the trial and closing submission, submissions were made on behalf of the plaintiff in relation to the stay, I consider that it would be unfair to the defendants and inappropriate in light of the nature of the proceedings to make any retrospective order in respect of the stay. Accordingly, the plaintiff's claim relates solely to following subparagraphs of the amended statement of claim:
"9.The third defendant, its employees, agents and servants were negligent in that they:
(e)drove the truck prior to ensuring that the digger machine was properly secured.
(f)drove the truck in such a manner as to allow it to tilt in consequence whereof the digger machine in which the plaintiff sat fell out of the rear of the truck."
Section 3A of the Motor Vehicle (Third Party Insurance) Act 1943 ("the Act") states:
"Sections 3C and 3D apply to the awarding of damages in respect of bodily injury to a person directly caused by, or by the driving of a motor vehicle".
The Act does not define "driving". In Insurance Commission of Western Australia v Container Handlers Pty Ltd (2004) 218 CLR 89 at p 109, McHugh J stated in relation to the definition of "driving" for the purposes of the Act:
"The Act does not define 'driving'.
The debate regarding the Amendment Bill in the Legislative Council indicates that the word should have its ordinary English meaning. The Oxford Dictionary and The New Shorter Oxford English Dictionary relevantly define 'drive' as to 'operate and direct the course of' and to 'operate and control the course of' a vehicle. Thus, when the Act refers to a consequence of the 'driving', it refers to a consequence of the actual operation and control of the direction and speed of the vehicle."
The second defendant was at the wheel of the truck at the time of the accident. For the purposes of the Act, I find that he was driving.
The term "motor vehicle" is defined in the Act and means "any vehicle … required to be licensed and complying with the requirements necessary for licensing under the Road Traffic Act 1974 (WA)". It is not disputed that the truck was a motor vehicle.
For the purposes of this trial, s 3A refers to bodily harm that is directly caused by the driving of the motor vehicle. In Insurance Commission of Western Australia v Container Handlers Pty Ltd (supra), the High Court considered s 3(7) of the Act:
"For the purposes of this act the death of or bodily injury to any person shall not be taken to have been caused by a vehicle if it is not a consequence of the driving of that vehicle or of the vehicle running out of control"
and s 6(1)(b) of the Act:
"Section 6 – Requirements in respect of Policies
(1)In order to comply with this Act a policy of insurance must ‑
(b)except as provided in this section ensure the owner of the vehicle mentioned in the policy and any other person who at any time drives that vehicle, whether with or without the consent of the owner, in respect of all liability for negligence which may be incurred by that owner or other person in respect of the death of or bodily injury to any person directly caused by, or by the driving of, the vehicle in any part of the Commonwealth;"
The court therefore considered the phrase "direct consequence of the driving of the motor vehicle" as opposed to "directly caused by the driving of a motor vehicle" and considered whether the interpretation of s 3(7) requires the term "directly" to be read into the sub‑section. McHugh J stated (at p 107):
"It is clear that under the first limb of the statutory formulae "directly" is relevant only to the question whether the injury was caused by the motor vehicle. That question looks to the direct connection between the injury and the motor vehicle, not the injury and the driving of the motor vehicle."
McHugh J at p 106 held that the meaning of "consequence of" for the purpose of s 3(7) required a link between the driving and outcome:
"As I have stated, under the Act it is necessary to establish a link between the driving of the vehicle and the death or bodily injury in question, not between the basis for liability and the death or injury."
I find that for the purposes of this trial in the context of driving any bodily injury suffered by the plaintiff was directly caused by the driving of a motor vehicle by the second defendant. Issues of negligence and causation need to be considered.
The issue to be determined in relation to the third defendant is whether it is vicariously liable in respect of the manner of driving of the second defendant.

The accident on 9 December 1994

The plaintiff was a competent and experienced excavator operator who had been working night shift on 8 December 1994 and at the request of the night shift leading hand agreed to move an excavator from one pit to another pit prior to ending his shift on the morning of 9 December 1994. The plaintiff manoeuvred the excavator onto the dirt bench and the first defendant reversed the truck to the dirt bench so that the tray top was level with the excavator. The plaintiff shovelled some dirt onto the tray top and then walked the excavator onto the tray top. He manoeuvred the bucket to the front of the truck to balance the weight, however the excavator was not chained or fastened to the tray top in any way other than by gravity. The plaintiff remained in the cabin with his seatbelt and hard hat on. The seat of the excavator cabin was approximately 4.8 metres from the ground given that the tray‑top was 2.8 metres from the ground and the seat was approximately 2 metres from the bottom of the excavator. This is consistent with the proportions shown in the photographs taken immediately after the accident (exhibit 2).
The truck drove forward for a few metres only and became bogged with the left rear dual axle wheel going down into talc-like dirt causing the front right wheel to lift up off the ground, causing the truck and the excavator to tilt to the left. Although moving an excavator on the back of a truck was common practice, according to the evidence this was the first time that a truck had become bogged and tilted in this way on the site. The plaintiff manoeuvred the bucket to the left and accordingly the excavator cabin turned to the left hand side of the truck. The bucket rested on the ground and supported both vehicles. If the bucket had lifted then both vehicles may have fallen to the left. The plaintiff believed that he could not leave the cabin without jeopardising both the truck and the excavator and there is no evidence that this was not the case or that he could have alighted safely at this time. No one on site suggested that he leave the cabin. The first defendant put the truck into 'park' and left the truck to arrange for a bulldozer. The plaintiff called the dayshift leading hand, Mr Mouritz on the two-way radio to come to the scene and supervise. The second defendant drove a bulldozer to the site and a sling was brought by another worker. At this time the second defendant took over as driver of the truck with the knowledge that the plaintiff was on a precarious angle in the cabin approximately five metres from the ground. The sling was attached between the bulldozer and the truck and the bulldozer attempted to pull the truck while the second defendant attempted unsuccessfully to drive out of the bog. Mr Mouritz supervised the sling being moved to the right hand side of the truck and was giving hand signals. I accept that the plaintiff said to the second defendant on the two-way radio:
"Are you ready to go – just tell me – and when you start to move off, tell me, so I can use the bucket to walk along on the left hand side of the truck".

These words are consistent with the position in which he was placed at the time. The plaintiff did not receive a verbal message from the second defendant or a hand signal or verbal message from anyone on site, and was unaware that the truck had started to move. The excavator fell off the back of the truck and the plaintiff manoeuvred the bucket to the dirt bench to stop the bucket from smashing the cabin. The photographs of the excavator and truck (exhibit 2) clearly show that the cabin was turned to the left and that the bucket hit dirt at a slightly higher level than the excavator tread consistent with a fall to the left requiring the plaintiff to brace to the right.
Mr Mouritz gave evidence that the windows were smashed. Mr Nuttall confirmed that the glass was safety glass. Although the windows are in place, I accept that the windows were smashed as a result of a direct impact from a height of approximately five metres and that, given that they were safety glass, one of the windows needed to be kicked out so that the plaintiff could get out of the cabin. The plaintiff had cut his hands and had glass all over him after he had kicked out the window. I accept the evidence of Mr Mouritz that the plaintiff referred to pain in his back and touched the left lower back region when making the comment. It may be that given the plaintiff's shock consistent with his shaken appearance, he only said these words to Mr Mouritz and did not tell Mr Nuttall about his back pain however, I accept that these words and gestures occurred immediately after the plaintiff exited the excavator cabin. Mr Nuttall did not give any evidence about the plaintiff having cuts to his hands, but I accept from the Meekatharra Hospital medical notes that the plaintiff was cut as he described. Mr Nuttall gave evidence that the plaintiff looked a bit shaken and that he considered that the plaintiff needed to go to hospital. I find that the plaintiff experienced a very forceful impact and fell on an angle consistent with twisting his lumbar region. The amount of broken glass, the cuts to his hands and the plaintiff's evidence about soreness related to the hard hat strap are consistent with a very heavy impact. I accept that given the shock suffered by the plaintiff, he probably asked Mr Nuttall to take him straight home and that it was Mr Nuttall's assessment and decision that it was important to go to the hospital. Given the plaintiff's condition at the time, the evidence of Mr Nuttall and the handwriting on the initial accident report, I find very little of the report was completed by the plaintiff and that the report would have been completed at a time when he was shocked and shaken.
I accept Mr Nuttall's evidence that he did not speak directly to the plaintiff in relation to lost time injuries. However, I find that the plaintiff held the belief that he should not make a lost time injury complaint consistent with Mr Nuttall's view that such a belief may have been held in light of the nature of the mining industry and the importance of safety to the industry.
Mr Nuttall confirmed that the plaintiff was due to start a shift on the 10 December 1994 and accordingly the plaintiff did not return immediately to work but had three days off after the accident consistent with the fraction of 3/7 in the Meekatharra Hospital medical notes. When the plaintiff returned to work, the third defendant did not create a leading hand position for him. Fortuitously a vacancy arose and, according to Mr Nuttall's evidence, given that the plaintiff had had days off due to back strain, the retraining was seen as a way to get him back into the workforce. I find that the re‑training occurred soon after the 9 December 1994, however not immediately after given that Mr Nuttall referred to work absences related to the back injury before the date when the training commenced.
Once retrained, the plaintiff had the dual role of acting leading hand and excavator operator. Both the plaintiff and Mr Nuttall gave evidence that the plaintiff would carry out duties as a leading hand requiring him to spend less time operating machines when a leading hand was away for the rostered week. Although the plaintiff's full‑time position was not as a leading hand, I find that he performed these duties on a regular basis.
After the plaintiff moved to Laverton, he attempted to work as an excavator operator fulltime. This was not successful and Dr Hall's notes and related reports document the plaintiff's move to light duties and ultimately to the pit cam contract at Greenbushes. In 1998, the plaintiff was only capable of working four hours per day and was subsequently declared "unfit".

Liability for the accident – 9 December 1994 – second defendant

The second defendant was employed by the third defendant and attended the scene as the bulldozer driver in response to the plaintiff's two-way radio call to bring a bulldozer to site. On arrival, the truck was already bogged and had one wheel in the air. The excavator was on the tray‑top on an angle with the bucket supporting the excavator and truck on the ground. The plaintiff was in the excavator cabin controlling the bucket. The second defendant volunteered to drive the truck when it was anticipated that the bulldozer would pull the truck out of the bog using the sling. Although there is no evidence in relation to the second defendant's experience as a truck driver on site, the evidence of Mr Nuttall, Mr Mouritz and the plaintiff supports that this was the first time on the site that a truck carrying an excavator had been bogged with the truck angled to the side and one wheel in the air. Once the second defendant took over the responsibility of driving the truck, he had a duty to consider the plaintiff's dangerous and precarious position including the angle of the truck, the lack of balance in the wheels, and the danger of the excavator falling thereby injuring the plaintiff. The second defendant as a driver, had an obligation to ensure that the load on his vehicle was safe before he took over control of the vehicle. There is no evidence that the second defendant made any attempt to secure the load, nor to find an alternative method of supporting the excavator and the truck so that the plaintiff could leave the excavator cabin and relinquish his control over the bucket without the truck potentially falling on its side. Further, there is no evidence that the second defendant communicated with the plaintiff prior to the truck taking off that the truck was about to move. If the second defendant was unclear whether a direction would be received from Mr Mouritz or from the first defendant, then he ought to have clarified who was responsible for speaking to the plaintiff on the two‑way before the truck started to move. I find that the second defendant was negligent in taking over control of the driving of the truck when he had not properly checked the security of the excavator, nor had he checked whether an alternative method of supporting the truck other than the plaintiff hydraulically pushing the bucket of the excavator to the ground was available. The second defendant failed to respond to the two‑way radio request of the plaintiff or to clarify with the others on site that the plaintiff would require notice prior to any movement of the truck and to determine who would be responsible for giving the plaintiff that notice.

Liability for the accident of 9 December 1994 – Third Defendant

The project manager, Mr Nuttall, gave evidence that the only requirement to operate an excavator was to have an excavator's ticket and that involved a site inspector conducting a short test in the pit to make sure that the operator knew what they were doing. There was no evidence that there was any training specifically related to the moving of excavators and the memos and reports prepared subsequently (exhibits 17, 18 and 19) confirm that the plaintiff had received no specific training and that no guidelines had existed for the safe movement of excavators until after the 9 December 1994. Mr Nuttall's evidence was:
"Without solid guidelines, you leave it up to the people to make an assessment at the time. If they haven't got anything to assess it against, then you sort of leave yourself open to people making their own call as to what they see as suitable or not suitable."
The plaintiff, who was an experienced excavator driver but who was not given guidelines or specific training in relation to the movement of excavators, agreed at the end of his shift to move the excavator from pit to pit. The leading hand on night shift did not make any assessment in relation to moving the excavator, nor was any assessment made of the dirt surface upon which the truck was required to drive.
The system that operated in relation to the movement of excavators on the back of trucks was clearly an unsafe system of work, however, the issue to be determined is whether the third defendant is vicariously liable for the manner in which the truck was driven.
The lack of training, guidelines, procedures and protocol also failed to cover the unusual and dangerous situation that arose on site once the truck was bogged. The third defendant should have directed the second defendant through Mr Mouritz to check that the excavator was secure before attempting to drive the truck. Mr Mouritz as leading hand, should have ensured that the excavator and truck were propped up so that they would not fall when the truck commenced driving by using equipment other than the excavator bucket that required the plaintiff's presence in order to ensure that the bucket hydraulically stayed in place. The plaintiff conceded that he was in a dangerous situation, however, he considered that the machinery was likely to fall if he relinquished his role as the excavator operator because of the support that the bucket gave to the bogged truck. No directive was given to the plaintiff to leave the excavator cabin, nor was the excavator supported so that the plaintiff could have safely alighted.
The plaintiff initially contacted Mr Mouritz on the two‑way radio system, and Mr Mouritz as leading hand for the third defendant should have taken over control of the situation from that point. Mr Mouritz failed to clarify with the second defendant who would signal to the plaintiff that the truck was about to start moving. Nobody on site responded to the plaintiff's request that he be told that movement was about to start to allow him to move the excavator bucket. Given that the plaintiff did not receive any warning, he failed to lift the bucket which, in my view, substantially contributed to the excavator falling because of the uneven distribution of weight.
Mr Nuttall in subsequent reports referred to the need for all parties to take time to consider what arrangements could have been made. The situation was not properly assessed on the day and the second defendant was not directed to ensure that his load was secure and that the plaintiff was safe prior to driving the truck. I find that the injuries to the plaintiff were caused as a result of the vicarious liability of the third defendant who failed to adequately direct the second defendant, failed to ensure that the excavator was secure prior to the truck being driven, failed to attempt another manner of propping the truck and excavator up that did not involve the plaintiff remaining in the excavator cabin, and failed to clarify the responsibility for directing and communicating the movement of the truck to both the second defendant and the plaintiff.

Contributory negligence

The second and third defendant submit that the plaintiff was negligent in that he failed to get out of the excavator whilst it was being transported and failed to get out of the excavator when it became bogged. The third defendant did not have any procedures, guidelines or training in relation to the movement of excavators on site and the plaintiff had, on over 50 prior occasions remained seated in the cabin of the excavator on the back of a truck in order to ensure that the bucket of the excavator did not interfere with the truck's progress from pit to pit. The plaintiff was considered to be an experienced and competent excavator operator by the leading hand and by the project manager and there was no suggestion of any request, requirement or encouragement to get out of the excavator before it was transported. I accept that this was one of two usual methods of transportation of excavators in December 1994 and that the plaintiff was not negligent in taking part in this system.
There is no evidence that a truck carrying a digger had ever become bogged before, nor had a truck carrying an excavator ended up on an angle with one wheel in the air.
After the truck became bogged, the plaintiff stayed in the excavator cabin in order to hold the bucket on the left hand side to support the truck and excavator and to stop both from falling to the left. The truck was at that time, precariously balanced and it was potentially dangerous for the plaintiff to leave the excavator cabin without the support of the bucket on the left hand side or other supports in place. Once the truck was bogged, the plaintiff was effectively trapped in a dangerous situation and there was no evidence that it was open to him to safely get out of the cabin without assistance. I do not find that the plaintiff was negligent.

Accidents from 9 December 1994 to May 1998

The medical notes of the Meekatharra Hospital for 9 December 1994 (exhibit 11) record:
"Some cuts on hands, painful back, awaiting medical review and a diagnosis of soft tissue injury to back. Workers compensation is noted and 3/7."
On 20 January 1995, the plaintiff:
"Returned because of back and neck pain since the injury, having received short relief from massage – neck keeps clicking, noted to have occurred one month after injury with associated headache and crack. No localised tenderness to palpation but from flexion and extension. Noted as neurologically intact. Neck strain exercise. Prescribed medication and referral to physiotherapy are noted."
On 23 January 1995, the notes recorded that the plaintiff suffered lower thoracic discomfort. A referral to a physiotherapist in Perth was made. The report of Ms Colleen, Geraldton Physiotherapy Clinic, dated 1 February 1995 refers to:
"Centro thoraco lumbar pain, bi‑lateral cervical pain and periorbital headaches with restriction in flexion, extension and rotation. Palpation of the second and third lumbar segments, the middle thoracic segments and the third and fourth cervical segments were particularly tender. An exercise programme and future review is recommended."

6 February 1995

On 6 February 1995, the first accident report (exhibit 9.2) notes:
"Paddy's Flat mine – sitting in excavator operating as normal – lifting bucket up – face caught on a rock then 'let go' – making machine jar/jolt backwards."
A back injury is noted and the date of 9 December 1994 is recorded as "details of any similar injury or disability prior to this occurrence".
The Meekatharra Hospital medical notes (exhibit 11) refer to:
"Pain above (that is from 9 December 1994) completely resolved but this morning jarred back with digger, pain lower back, same place as before, L2/3 is noted. Workers Compensation and 3/7 are recorded."
A further attendance in relation to back pain that the plaintiff attributed to December 1994 is recorded on 18 August 1995.

15 January 1996

The first injury report (exhibit 9) records:
"Climbing up onto excavator when I felt something pull on wrist."
No previous similar injury is noted.

30 November 1996 (exhibit 9)

"Smoko break. I jumped into a truck which was hit while been (sic) loaded with dirt. Re-occurred my back injury."

Reference is made to lower back and previous injuries. Dr Lambasa's medical certificates (exhibit 10.57 – 72) note in respect of this injury:
"Flare up of old back injury and diffuse moderate muscle strains throughout neck, back and hips. For light duties and physio and anti‑inflammatory. Low back pain and muscular pain is noted. On 9 December 1996, excellent improvement – full range of movement of L4/5 – still slightly tender and right hip muscle spasm persists but all upper muscle pains settling. Alternative duties are recommended until 11 December 1996."

1 June 1997 – First Injury Report (exhibit 9)

This refers to:
"3‑point contact when going down the stairs (digger). My feet gave way and landed on my bum. Pain lower back."
In response to the question "Is current injury of disability totally attributable to this occurrence" the answer recorded is "no" and a reference is made to Dr Lambasa GP. Dr Lambasa notes (exhibit 10.57 to 72):
"Back pain. Very tender L4/5 L5/S1 facet joints."
Reference is made to facet joint injections that are recorded as successful. A flare up of the condition on 21 October 1997 from a road trip is noted. Excellent improvement is noted by 5 November 1997. However, by 1998 the facet joint injections do not assist with the pain and low back pain, increasing numbness right leg and a referral to Mr Narula is made. Dr Lambasa refers to sciatica on 3 April 1998.

May 1998 – Dr Dewing (exhibit 10.82)

Dr Dewing notes that the plaintiff carried his daughter. He does not consider that this aggravated the condition. This opinion is different from that of Dr Gillett but consistent with Dr Finch.

Causation

Although in Mr Narula's opinion degeneration of discs and facet joints would have probably led to the plaintiff requiring light duties in his mid‑forties, there was no suggestion that his condition was normal or reflected degeneration at the age of 28 years.
Dr Finch described the fall as:
"I gather he fell five to six metres which is a hell of a thump. He had a heavy fall and this has exacerbated matters. I find that the fall was very heavy from a significant height and the impact was sufficient to shatter security glass windows on a piece of heavy machinery. The subsequent incidences of jolting and jarring were relatively minor."
It is conceded and is not considered unusual by Mr Narula, Dr Finch and Dr Berrigan that the pain and related symptoms in the back became progressively worse over time and that the injury was aggravated by the subsequent incidences that caused flare‑ups and additional pain. Dr Lambasa was the plaintiff's general practitioner over the period when he experienced the majority of accidents subsequent to 9 December 1994 and he referred to the potential effect of the aggravating incidences on the initial injury as being a smouldering fire that could flare up. The plaintiff had time off work after each of the incidences. Dr Home did not consider that time taken off work necessarily reflected the injury that had been sustained, because industrial factors and other factors relating to the plaintiff at the time were also relevant.
I find that although the plaintiff continued to work as an excavator operator for the majority of the time immediately following the accident of December 1994, his absence from work and the pain that this caused him was noted by the third defendant and was a factor taken into account by Mr Nuttall in relation to the decision to choose the plaintiff for re‑training. The increased aggravation of the plaintiff's condition is documented by Dr Lambasa and Dr Dewing and the aggravation ultimately led to the plaintiff only being fit for light duties and ultimately unfit for employment.
The principle in Watts v Rake (1960) 108 CLR 158 at 160 is that once the plaintiff has led evidence establishing the accident and his subsequent symptoms, the defendant bears an evidential onus if it is suggesting that the cause of the injury is a pre‑existing condition. There is an evidential burden on the defendant to "disentangle" the plaintiff's disabilities and trace them to a cause in which the defendant's negligence played no part. Causation is to be determined in accordance with common sense and not in accordance with any philosophical or scientific theory of causation; value judgments and policy considerations necessarily intrude. (Bennett v Minister of Community Welfare (1992) 176 CLR 408).

The defendants have not met the evidential burden of disentangling the effects of the subsequent incidences. I find that the defendants are liable to compensate the plaintiff for the injuries that he sustained and that the injuries are attributable to the accident of 9 December 1994.

The plaintiff's injuries

The plaintiff was a very poor historian who had difficulty communicating with the medical practitioners he consulted. In evidence, the plaintiff's responses were genuine however, he was neither concise nor articulate and his presentation was consistent with his level of education, employment and personal history. Misinformation was recorded and dates and facts were wrongly noted by specialists asked to assess the plaintiff. For example, Dr Lambasa recorded the date of accident wrongly but recorded a history consistent with that of 9 December 1994. The plaintiff's difficulty with communication was most evident in Mr Alexeeff's recorded history. Mr Alexeeff carried out his assessment on the understanding that the plaintiff had fallen from a height of 12 metres out of the back of the digger and had returned to work the next day. None of these factors was correct. Further, Mr Alexeeff did not assess the plaintiff or any scans of the plaintiff after 2002. Dr Gillett proceeded on a recorded history that the plaintiff had tipped and was unclear whether or not this was onto the truck tray top. He also noted that the plaintiff fell directly on his back. Dr Gillett agreed that an accurate history was important in relation to a diagnosis of the plaintiff's condition. Details of the facet joint injection locations and the success rate and timing had also not been recorded or were recorded inaccurately by Mr Alexeeff, Dr Gillett and Mr Brash and no medical practitioner other than Dr Finch, viewed the MRI dated October 2005. Mr Brash noted the plaintiff's aboriginality by commenting on the plaintiff's reference to his dark skin in the context of bruising but neither he nor any of the defendants' expert witnesses altered the method by which the plaintiff's medical history was noted to reflect cultural sensitivities and difficulties in communication.
The accident occurred 11 years ago and resulted in the plaintiff consulting a myriad of medical practitioners and being involved in protracted legal proceedings. In recent years the plaintiff has overstated his symptoms consistent with positive Waddle signs and used a walking stick when one was not required. Pain diagrams were described as inconsistent with physical findings or overly illustrative. All doctors however, considered that the plaintiff was honest and pleasant and none of the expert witnesses described him as lying or manipulative. I find that his pain presentation was not dishonest, but was rather an attempt to communicate his pain in the manner described by Dr Finch. Given the plaintiff's limited verbal skills and the protracted and varied diagnosis, I find he used his physical presentation to communicate his distress. A clear neurological foundation for the plaintiff's injuries is not apparent, nor is the plaintiff able to properly articulate his pain and the impact that the pain has had on him. This distress and pain behaviour exaggerates but does not negate the symptoms described in the evidence of Dr Finch, Mr Narula and Dr Lambasa in relation to the genuine injuries from which the plaintiff suffers.
I prefer the evidence of Dr Finch, Mr Narula and Dr Lambasa because:
(a)Dr Finch was consulted by the plaintiff and treated the plaintiff for a period of eight years and came to know both the plaintiff and his family. His notes on the plaintiff's history accurately reflect the plaintiff's evidence and the circumstances of the accident.
(b)Mr Narula was consulted over seven years on approximately 10 occasions and had contact with family members. His notes are also consistent with the plaintiff's testimony, the manner in which the accident occurred and Dr Finch's notes.
(c)Dr Lambasa saw the plaintiff on a regular basis in 1996 to 1997, which was a crucial period in relation to his injuries and made his assessment and diagnosis in the context of the mining industry given that he was and remains a general practitioner based in Kalgoorlie.
The plaintiff developed a rapport with each of these medical practitioners who welcomed the input of his extended family. I have had the unique opportunity to observe the plaintiff and his mother during the course of the trial. The plaintiff's response to the support given to him by his extended family being present during the course of the court proceedings was evident and I find that he would have welcomed their support at medical appointments and that this support would have improved the level of communication between doctor and patient.
I agree with Dr Finch's diagnosis that the plaintiff suffered an internal disruption of the L4/5 disc causing ongoing low back pain.
I accept Dr Finch's conclusion based on his findings that the sensory numbness and paraesthesia he found on examination is diagnostically related to the L4/5 disc. The MRI of 2005 showed fluid on the joints indicating degeneration and inflammation and a bone scan also indicated that the L4/5 disc was metabolically more active, probably due to degenerative changes.
Although Dr Finch's diagnosis was presumptive, he had examined the plaintiff on a regular basis over an eight year period and had repeatedly considered the plaintiff's history. Dr Finch had assessed subtle changes in the imaging and the discography results and, given his findings on examination and his experience as a pain management specialist for over 30 years, was confident that the conclusion he reached was accurate.
Although an MRI specifically illustrating the injury was not obtained, Dr Finch noted that MRI equipment to assess the patient when seated is not available in Australia and, therefore the compression he diagnosed could not be shown. Dr Finch further considered the injury to be discal, rather than purely related to the facet joint because of the statistics relating to injuries of this type experienced by those of the plaintiff's age and because of the bio‑mechanics of the fall, which he determined was a heavy fall with a twist consistent with my findings.
Mr Narula diagnosed a neurological injury to the facet joints between L3/4 to L5/S1 and based his assessment on the noted muscular atrophy when he measured the right leg, both at the calf and at the thigh that recorded a reduction in size consistent with nerve injury to the facet joints. He was the only expert witness to physically measure the limb and not rely on an eyeball assessment. He also noted that the successful facet joint injections to the L3/4 to L4/S1 facet joints were diagnostic in that the relief given (that was confirmed by Dr Lambasa to be significant) was consistent with locating the injury to the facet joint. A facet joint injection does not assist in the repair of the injury and the return of pain was consistent with the nerves re‑growing in a non‑anatomical manner. It should also be noted that Dr Finch supervised further facet joint injections at a different facet joint level from those originally administered without success consistent with the regrowth of a nerve path or the re‑routing of the nerve path.
Dr Finch has significant expertise in relation to MRI scans and discal nerve problems and I accept his assessment of the 2005 scan and the diagnosis based on his clinical findings. Dr Finch agreed however that a facet joint injury is often secondary to a discal injury and, given Mr Narula's findings I find that this combination is the most likely injury suffered by the plaintiff.
Dr Dewing, Dr Finch, Mr Narula and Dr Lambasa confirm that the site of injury has been consistent over the past 11 years and has remained consistent with the diagnosis of Dr Finch. Notably, when Mr Narula first examined the plaintiff nearly eight years ago, and when Dr Finch first carried out tests including the slump test and a test for dural irritation, the plaintiff's responses were, at that time, consistent only with the discs to which the specialists referred. I do not find that the plaintiff is sophisticated enough to have memorised potential pain sites or to have faked testing of this type, particularly eight years ago when he had only just commenced consulting specialists. Further, all the witnesses described the plaintiff as likeable or honest and I do not accept he would have behaved dishonestly at assessment. I also do not accept that the fluid observed in the facet joint indicated fluid from facet joint injections or from irritation from too many facet joint injections. There is no evidence to support this. The fluid is consistent with inflammation, consistent with the assessment of Mr Narula and Dr Finch and the plaintiff's history of complaints.
The plaintiff has suffered a significant injury that has limited his ability to sit for long periods and to stand. He experiences pain and the sensation of numbness particularly in his right lower limb and the pain restricts him in his daily activities, including his domestic duties, caring for his children and being capable of working. His quality of life has deteriorated significantly as a result of the accident and his ability to sleep, socialise, enjoy sport and to commence a new relationship has been significantly compromised. Given his pain level, his lack of education and his skill base, he is very unlikely to be able to re‑train for any future vocation and he will remain totally incapacitated for work. I do not accept that surgery is likely in the future given the conservative view taken by Dr Finch but I find that the plaintiff will be reliant on medication to address his pain probably for the rest of his life.
I find that once the trial process is completed, the plaintiff will be able to take up exercise and to have a more positive outlook towards his future with his family. I consider that in light of the evidence the pain behaviour demonstrated by the plaintiff will naturally abate.

Motor Vehicle (Third Party Insurance) Act assessment – General Damages

The plaintiff is entitled to general damages for the accident and for the resultant pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm. Section 3C Motor Vehicle (Third Party Insurance) Act 1943 (the Act) sets limitations of the award of damages for non‑pecuniary loss. Section 3C(3) advise that the maximum amount of damages that may be awarded for non‑pecuniary loss is $268,000, and that that amount may be awarded "only in the most extreme case." The approach to the interpreting "only in the most extreme case" was discussed in Wylde v Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997. The court said:
"There are a number of ways by which trial judges could approach the task of apportionment required by s 79(2) and s 79(3). It is inappropriate in this case for this Court to mandate any particular way of arriving at the 'proportion' required by s 79(2). But clearly, because the task in hand is that of awarding damages for 'non-economic loss', it is appropriate for the trial judge to consider and make findings on those elements in the evidence which are relevant to such loss. This will require the judge to consider and make findings on the evidence relevant to those heads of damage formerly considered in the award of general damages. Then it is necessary for the judge to conceive 'a most extreme case'. Only for such a case may the maximum amount provided by s 79(3) be awarded. The use of the indefinite article 'a' has already been noted. Opinions of what constitute 'a most extreme case' will doubtless vary. But clearly quadriplegia would fall into that class. The amount to be awarded must then be apportioned somewhere between nil and $180,000 (the maximum); but in a ratio which the judge fixes, keeping in mind the fact that the cap of a statutory maximum is retained for a 'most extreme case'."
In making this determination I find that the accident has significantly affected the plaintiff's life. Prior to the accident the plaintiff enjoyed working as a plant operator and was a well respected skilled worker. The plaintiff was physically fit and enjoyed sports including jogging, basketball and football, and had an active role in the care of his family. The injuries sustained by the plaintiff have limited his activities. He is no longer able to work or to care for his children domestically. He cannot play sport, nor can he play with his son in a way that he considers to be appropriate. He is unable to accompany his daughter on her shopping outings as much as he would like. His ability to commence a new relationship is very limited because of his pain and his related loss of interest in intimacy.
Considering these matters, the evidence of the plaintiff and the evidence in relation to his injuries, I find that the plaintiff's initial injuries and symptoms, ongoing symptoms and treatment and the effect that they have had on the plaintiff's enjoyment of life, places the case at 20 per cent of the most extreme case. Given that the maximum is $268,000, this is a sum of $60,300. No statutory deduction is applicable. This sum is however reduced by $13,598.33 being the sum paid by way of settlement of the claim by the insurer pursuant to the Workers Compensation Rehabilitation Act 1939. Taking into account the deduction the sum of $46,702.00 is awarded.

Past economic loss

Workers compensation

Workers compensation in the gross amount of $96,000.02 was paid. In net terms this is a deductible amount of $73,948.82.

Calculation of past economic loss

It is agreed that the average net weekly wage of $878.62 reflects the net weekly earnings from 1996 to 2001. The plaintiff's book of economic loss (exhibit 4) reflects that the loss commences in the year commencing 1 July 1998. I do not accept that accommodation has been proven to be part of the plaintiff's remuneration package.
The plaintiff's projected earnings between
1 July 1995 and 30 January 2006, a 10.6 year
period at $878.62 net per week  $483,241
Less actual earnings between 1 July 1995 and
24 November 2005 (inclusive of Workers
Compensation)  $180,873
Nett Loss$302,368
Interest on $302,368 at 3 per cent from
1 July 1998 to 30 January 2006 (8.5 years)  $77,104
Total $379,472

Past superannuation loss

A net loss of earnings between 1 July 1995
and 24 November 2005 of $298,854 is a gross sum of: $428,960
Applying 8.5 per cent superannuation less 30 per cent
discount: Jongen v CSR Ltd (1992) A Tort Rep 61,706
this is an amount of: $24,309

Future economic loss

I accept the evidence of Mr Narula that the plaintiff's condition would have degenerated by the age of 45 years to such an extent that he would be incapable of carrying out his employment as a machine operator. The position of leading hand, the more senior position for which the plaintiff was trained, still required the operation of heavy machinery, therefore this employment would be unlikely to be suitable after the age of 50 years. The plaintiff's skills are in machinery operation and heavy haulage equipment. His education and his ability to re‑train are very limited. I do not accept that the plaintiff would be promoted after the age of 50 years in a field that did not involve machine operation. I consider that the plaintiff would only be able to obtain work involving lighter duties that was not managerial in nature. After the age of 50 years a lower rate of remuneration, being $500 net per week applies.
I accept that the plaintiff is 39.8 years old and that the appropriate multiplier to the age of 50 years is 400.
The loss of income to 50 years is:  $351,448
The appropriate multiplier for the age of 50 years to 65
years is 290. I accept earnings of $500 net per week          $145,000
Total past loss  $496,446
I consider that a deduction of 10 per cent contingencies
applies:$446,801

Future loss of superannuation entitlements

$878.62 net per week is a gross income of $1,168 per week. Gross future loss of earnings is $593,701. The superannuation entitlement is calculated as follows:
($593,702 x 9.5 per cent) – 30 per cent $39,481

Past gratuitous services

I accept the evidence of Mrs Gibson and allow the plaintiff five hours per week at $15 per hour for past gratuitous services. Although a precise date was not given by Mrs Gibson as to when her services commenced, I accept that she rendered the services some months prior to the death of the plaintiff's wife and I commence the date at 1 January 2000:
1 January 2000 to 30 January 2006 is a period of 316 weeks.
316 weeks x 5 hours x $15 per hour $23,700
Add 3 per cent interest $24,411

Future gratuitous services

I accept that services will be rendered in the future, however, the plaintiff's children will be of greater assistance to him and will eventually be independent of him. The plaintiff's needs will, accordingly, be slightly reduced.
Future gratuitous services are set at
4 hours per week x $15 x 803.2
(being the multiplier for 39 years life expectancy) $48,192
Less 6 per cent contingencies $45,300

Special damages

A repayment to HIC of $3,781.85 is not covered
by workers' compensation payment and is included $3,782
Current weekly medical costs are $11.47.
A lower past rate is reflected by a reduction to $10
with interest at 3 per cent.
I accept that this is a total of $4,061
Total$7,843

Future special damages

I accept that given the plaintiff's natural degeneration of the spine, medication of the type presently prescribed would have been required after the age of 60 years. General Practitioners' visits every two months and Specialist's attendance each year for review at a weekly total cost of $5 is allowed until the age of 60 years. I do not accept that further facet joint injections are likely to be required, or that surgery is more than a remote possibility. A repeat discography at $500 is allowed. Given that the plaintiff lives in the City of Geraldton and there is no evidence that medical services are not available. I do not consider that a travel allowance is warranted.
Total $9,800

Summary of damages awarded

The plaintiff is entitled to judgment as follows:
General Damages   $    46,702
Past Loss of Earnings   $ 379,472
Past Loss of Superannuation  $    24,309
Future Loss of Earning capacity   $ 446,801
Future Loss of Superannuation  $    39,481
Past Special Damages   $     7,843
Future Special Damages  $     9,800
Past Gratuitous Services  $    24,411
Future Gratuitous Services   $    45,300
Total $1,024,119

[2006] WADC 4

30 January 2006