Greenhalgh v Baum - [2001] WADC 172

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: GREENHALGH -v- BAUM [2001] WADC 172

CORAM: O'BRIEN DCJ

HEARD: 11-14 JUNE 2001

DELIVERED : 23 JULY 2001

FILE NO/S: CIV 789 of 1996

BETWEEN: WAYNE HOWARD GREENHALGH
Plaintiff
AND
ERNEST ROLAND BAUM
Defendant

Catchwords:

Damages - Personal injuries - Motor vehicle accident - Turns on own facts

Legislation:

Nil

Result:

Damages awarded

Representation:

Counsel:

Plaintiff: Mr D M Bruns
Defendant: Mr J G Staude

Solicitors:

Plaintiff: Kaeser Kroon
Defendant: John Staude

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

Grincelis v House (2000) 74 ALJR 1247
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Nolan v Hammersley Iron Pty Ltd [2000] WASCA 304
Van Gervan v Fenton (1992) 175 CLR 327

Case(s) also cited:

Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538
Australian Iron & Steel Ltd v Connell (1959) 103 CLR 522
Bonnington Castings Ltd v Wardlaw (1956) AC 613
Bowen v Tutte [1990] A Tort Rep 81-002
Chapple v Hart (1998) 195 CLR 232
EMI (Australia) Ltd v BES [1970] 2 NSWR 238
Fitzgerald v Penn (1954) 91 CLR 268
Hodges v Frost (1984) A Tort Rep 80-303
McGhee v National Coal Board (1972) 3 All ER 1008
Purkess v Crittenden (1965) 114 CLR 164
Quinn v Cameron & Robertson Ltd [1958] AC 9
St George Club Ltd v Hines (1962-63) 35 ALJR 106
Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303

O'BRIEN DCJ: The plaintiff claims damages for injuries he received in a motor vehicle accident on 7 June 1990. He was stationary in his car at an intersection in Bunbury when it was struck from behind by a vehicle driven by the defendant.
In his statement of claim, the plaintiff alleges that as a result of the collision he sustained a soft tissue injury to his cervical spine, a disc prolapse at the L5/S1 level and "underfilling of the carpal S1 nerve root".
Liability has been admitted in relation to negligence. The defendant denies that the plaintiff was injured or suffered loss. However, the defendant claims that if the plaintiff suffered any disabilities, they were the result of an earlier motor vehicle accident on 2 June 1987 wherein he also sustained a back injury and not to the 1990 accident. The plaintiff had no time off work as a result of this accident and claims that he recovered completely from that accident and had no residual effects at all.
This trial is the second trial of this action. There was an appeal against the first decision of this court and a retrial was directed by the Full Court.

Personal and work history

The plaintiff was born on 3 August 1955. At the date of trial he was 45 years old and at the date of the accident, he was almost 35 years old.
For most of his working life the plaintiff has worked in the insurance industry. He joined National Mutual in 1978 which merged with Commercial Union in 1980. When he left Commercial Union in December 1988, the plaintiff's salary was around $20,000 per year and he was working as a senior claims officer which was an in-house clerical position. He resigned from Commercial Union due to "internal disputes" in the work place. He testified that he was very distressed and tired when he left. He consulted a doctor and was prescribed serapax for anxiety. Since then he has taken serapax for an on-going anxiety condition. However, it would seem that the plaintiff had been suffering from anxiety since 1979.
In about July 1989, the plaintiff commenced working in Bunbury for Riklyn Consultants as an insurance assessor. He testified that he never had any trouble with work over the next six or eight months save that there was a lack of work. He and his family were very content with their lifestyle which the plaintiff described as "brilliant".
In 1990, the plaintiff decided to set up his own business as an insurance assessor. He established a partnership with his wife. For a time, he was in receipt of unemployment benefits but this was only because they were a prerequisite to obtaining financial assistance through the New Enterprise System ("NES"). The plaintiff received his first job in May 1990. After that, the plaintiff testified that he had a reasonable stream of instructions. The NES was to pay the plaintiff the equivalent of the unemployment benefit for a year. In March 1991, the plaintiff experienced leg symptoms ("the March 1991 incident"). He consulted a doctor who certified him unfit for work. Thereafter, he was in receipt of sickness benefits and the NES allowance stopped. Since 1993 the plaintiff has been in receipt of a disability pension.
The plaintiff continued to work as a loss assessor in his own business (notwithstanding his receipt of unemployment benefits) until at least October 1992. I discuss this in more detail later in this judgement. The plaintiff claims that he has been unable to work in any capacity since then due to the effects of the 1990 accident.

The 1987 accident

This accident occurred when the plaintiff's car, which he was driving, was hit by another car. The plaintiff's car was repaired for $300. The plaintiff testified that he suffered only minor injuries to his back and right leg which did not require on going medical treatment. He stated that he experienced minor pain in his right leg on approximately two occasions. He did not require any time off work. In his evidence, the plaintiff claimed that this accident was minor and that he completely recovered from the injuries he sustained.
Initially the plaintiff saw Dr Walsh who referred him to Mr Vaughan, a neurosurgeon. Mr Vaughan testified that in his opinion, the L5/S1 site was causing the pain symptoms in the back but acknowledged that a radiologist's interpretation that L4/5 was involved was arguable. The injury was treated conservatively.
The plaintiff's SGIC claim was settled in May 1989. The plaintiff testified that from the time of settling his claim until the June 1990 accident, he had no problems at all with his back. In fact, he said that with the help of his sons, he made a complete driveway moving five tonnes of rock. He said that he was pain free and when working as an insurance assessor with Riklyn and travelling all over the state, he never had any problems.

The accident on 7 June 1990

The plaintiff was driving his Fairlane and was stationery at an intersection in Bunbury waiting to turn right. He heard the squeal of rubber and glanced in the rear vision mirror and saw a Commodore approaching his car very fast. The Commodore collided with the rear of the Fairlane. The plaintiff testified that the collision cause him to fly forward. He believes he hit his head on the steering wheel as the next day he found a bruise on his forehead and was unable to otherwise account for it. The plaintiff testified that he "would have" been wearing a seatbelt.
Photographs of each car depict little damage to the rear of the Fairlane which was fitted with a tow bar and extensive damage to the front of the Commodore. In the absence of any other explanation, it is reasonable to infer that the tow bar provided a good deal of protection to the Fairlane and explains the more serious damage to the Commodore.

Immediate effects of the accident

The plaintiff testified that he felt a twinge [of pain] in his back and neck immediately after the accident. However, he assisted the other driver with insurance and reporting details and thereafter continued with his work. He said that his symptoms did not appear serious at the time.
In evidence in chief, the plaintiff testified that he did not consult a doctor until 10 July 1990 when he saw Dr Jorden, a general practitioner, who worked at what is now called the Australind Medical Centre. He said that in the meantime, he had pain in the spinal area and neck which did not heal up and that is why he went to see Dr Jorden. The plaintiff testified that before seeing Dr Jorden he was suffering pain which was irritating when he was driving but he just "soldiered on just like anyone who's starting off his business".
Dr Jorden, who is now deceased, reported that the plaintiff complained of "pain in his neck radiating to the lumbar spine and both buttocks. Examination revealed a very stiff back with limited movement but no neurological signs. [The plaintiff] was instructed in a back exercise program and advised re physiotherapy." The plaintiff testified that the back exercises made things worse and later a doctor told him to stop doing them. When he reviewed the plaintiff in December 1990 Dr Jorden reported that the plaintiff "was virtually pain free and feeling well". The plaintiff denied telling Dr Jorden this and sought to explain his report by saying, in effect, that he may have said he was feeling fit and well as an automatic response to a question such as "how are you?". Dr Jorden's note of the consultation reads "Takes 1/2 serapax….daily and feels good. Relief from back pain P.I.D. L4/5". The next note recorded on 16 January 1990 (which should be 1991) by a Dr Kaperska refers to a request for serapax and "good relief". It is not clear whether this note relates to relief from back pain or from anxiety.
The plaintiff testified that in March 1991 he got out of his car and his right leg was "extremely uncomfortable". He described his left leg as "totally paralysed and numb" and struggled to finish the job he was on. He agreed that this was the onset of his leg symptoms which were quite severe. The left leg was most affected. He said that the right leg was "quite alright". The plaintiff described these symptoms as "more of an exaggeration of previous symptoms" and had previously experienced some pain down his leg after the accident. He testified that the March 1991 incident "was the main one which shook me".
On 12 March 1991 the plaintiff consulted Dr Jorden who advised him to rest and prescribed pain killers and anti-inflammatories. I interpret Dr Jorden's note of the consultation as referring to the plaintiff having three weeks of back pain and it states "numbness of [left] leg after driving his car". The plaintiff did not dispute this.
Dr Thompson, another general practitioner and colleague of Dr Jorden, saw the plaintiff on 15 March 1991 following this incident. Dr Thompson's note of the consultation refers to the plaintiff giving a nine month history of a painful back with numbness and stiffness and restricted movements "with which he has coped but feels he can not now". No questions were asked of Dr Thompson with a view to clarifying the reported length of back pain. In his report dated 9 July 1992, Dr Thompson stated that the plaintiff had experienced considerable pain in his low back ever since the accident and "felt he could not cope with the limited amount of work he was doing". His pain was aggravated by driving his car. Dr Thompson certified that the plaintiff was unfit for work. It seems that the plaintiff was on sickness benefits from about that time in 1991 which continued until he qualified for the disability pension in January 1993.
The plaintiff testified that he attempted to continue with his work as an insurance assessor but found it increasingly difficult to drive the required long distances and type the reports. He and his wife made other attempts to get the reports typed but they failed and there were complaints from his clients about the lateness of his reports. He did not directly tell his insurance company clients that he had a back problem but said that he would find excuses to refuse work and the word of his disability got around, a fact confirmed by Mr Fitzpatrick, the manager of one of his clients. Eventually, the work dried up and the business ceased.
The plaintiff testified that despite back exercises, walking and swimming, his condition worsened. He said that he could no longer play with or bathe his children, garden or vacuum. He was unable to drive long distances or walk or stand for any length of time. By the date of trial, the plaintiff said that he was virtually house bound, and experienced constant but fluctuating pain and anxiety.
There was no psychiatric evidence about the plaintiff's anxiety. The extent to which his anxiety impacted on his back pain and vice versa is unclear. There was no evidence about nature, cause, duration and intensity of the anxiety condition. It does not form part of the plaintiff's claim. Nor does the defendant allege that the anxiety contributed to or exacerbated the plaintiff's back symptoms.

The 1987 accident

As the defendant claims that if the plaintiff suffers any disability, it is due to the 1987 accident, it is necessary to consider the medical evidence relating to that accident.
The plaintiff was seen by a number of doctors in relation to the 1987 accident but only Mr Vaughan was called to testify on his behalf. A scan was taken on 13 May 1988 by Dr Gibson who reported that at "the L4/5 level there may be very slight postero-lateral bulging of the annulus on the left side but there is no evidence of compromise of the L4 nerve roots. The spinal canal is developmentally a little narrow in its transverse diameter at this level but the dimensions of the thecal sac are still adequate…..At the L5/S1 level the appearances are within normal limits".
Mr Vaughan reported on 16 September 1988 that "the scan shows that at L5/S1 there has been some deterioration of the disc…with likely some discal instability which would account for his pain state". This seems at odds with the report of Dr Gibson. However, Mr Vaughan testified that he had reviewed the scans and was of the view that the pathology was at L5/S1 level. He accounted for the difference by reference to a difference of opinion between a radiologist and a neurosurgeon. He said that the radiologist "believed….with some degree of reasonableness, that there was a minor degree of bulging to the left at L4/5", whereas he believed that "there were more subtle changes more in L5/S1" but either opinion could be argued. Dr Home, a rehabilitation physician, who reviewed the plaintiff in 1996 and 2000, also viewed the scan taken by Dr Gibson. His view was that "there was a very shallow disc bulge at L5/S1" although it was recorded by the radiologist as within normal limits.
All other medical witnesses who gave their opinions about the effects of the 1990 accident appeared to adopt the opinion of Dr Gibson that the pathology in 1988 was to the L4/5 level. All scans subsequent to the 1988 scan refer to L5/S1 pathology and refer to the L4/5 level as being within normal limits. I am therefore in the difficult position of having conflicting opinions as to the site of the lumbar pathology after the 1987 accident. The symptoms experienced by the plaintiff are consistent with either L5/S1 or L4/5 pathology. Reports by Dr Walsh, who assessed the plaintiff's medical condition following the 1987 accident, indicated that the injury was at L4/5. However, he gave no reason for that opinion. Further, in his report dated 8 March 1989, he reviewed the plaintiff's history and referred to him being "tender to palpation over his L5/S1 level."
However, Mr Vaughan was the only witness who had treated the plaintiff for his injuries in the 1987 accident and the 1990 accident.
In my view, one of the following scenarios is open.
1.The 1987 accident caused injury to L4/5 which resolved before the 1990 accident. If there was such an injury, its resolution is confirmed by the plaintiff being symptom free relatively shortly after treatment and the scans which show the L4/5 being within normal limits. The 1990 accident caused injury to the L5/S1 level which accounted for the plaintiff's symptoms thereupon.
2.The 1987 accident caused injury to L5/S1, the symptoms of which were successfully treated or resolved before the 1990 accident. The 1990 accident caused a flare up of that injury which accounts for the plaintiff's symptoms since.
3.It is not possible to find that the injury to the L5/S1 level and the symptoms which followed the 1990 accident can be attributed to one or other of the accidents.
Despite the written report of the radiologist dated 13 May 1988, as that opinion was untested in evidence and as each of Mr Vaughan and Dr Home are of the view, having seen the scans, that the 1988 injury was to the L5/S1 level and Dr Walsh reported that the plaintiff was tender to palpation at that site, I find that it is more probable than not that the 1988 injury was to that site. Evidence in relation to the absence of pathology at the L4/5 level as indicated by scans taken from March 1991 tends to confirms that view together with unequivocal evidence that from 1991 there was pathology to the L5/S1 level.

Did the 1990 accident cause the symptoms which the plaintiff experienced thereafter?

The plaintiff testified that he immediately felt neck and back pain after the accident. This was not severe.
The plaintiff saw Dr Jorden on 5 December 1990 who reported that he was "virtually pain free and feeling well". The plaintiff did not seek any further medical advice about his back condition from the doctors at the Australind Medical Centre until the March 1991 incident when he saw Dr Jorden on 12 March and Dr Thompson on 15 March. However, he did seek medical advice about other matters. The notes of those consultations make no reference to any back condition. In the meantime, the plaintiff said that he was experiencing symptoms but was trying to establish his new business and put his health problems to one side. However, he was taking serapax and panadol and was getting some relief. The plaintiff denies telling Dr Jorden that he was pain free and feeling well but that if he said that, it was a reflexive answer to a trite question about his health. However, given the detail in Dr Jorden's notes, I infer that he would not have recorded a pain free state unless he had investigated the matter beyond an answer to a simple pleasantry. It was not until the March 1991 incident that the symptoms became acute. I find that in the meantime, the plaintiff did suffer intermittent pain but that it was not severe enough to seek medical intervention even if he was thinking more of his new business and, according to his wife, hoped that the pain would resolve as it had after the earlier accident. The plaintiff by then had a long standing anxiety condition about which he sought regular medical advice and treatment and he simply does not strike me as a person who would put up with any pain or fail to seek medical attention for it especially as he had been involved in a previous accident and stated that he was experienced in workers compensation insurance.
The plaintiff agreed that prior to seeing Dr Thompson in March 1991, he had only seen Dr Jorden twice and another doctor sometime in December 1990. Under cross‑examination, the plaintiff testified that he had seen his former general practitioner, Dr Griffiths, in Gosnells on 23 June 1990 when he asked for a serapax prescription and again on 31 August 1990 for the same reason. He testified that he wanted serapax for the back problems and nothing else. He said that he would have mentioned the accident because the doctor would not have prescribed serapax "for nothing". He said that Dr Griffiths was his usual doctor when he lived in Perth but that he did not travel to Perth specifically to see Dr Griffiths but visited him when in Perth on business. He testified that he did not seek reports from Dr Griffiths until within the last four weeks prior to this trial and had been advised that the records were no longer in existence.
I do not accept the plaintiff's evidence that he consulted Dr Griffiths in Gosnells on 23 June 1990 to order or obtain serapax because of his back problem. There is no reference of this consultation in any of the subsequent medical reports and it is reasonable to expect that the plaintiff would have mentioned this consultation and the serapax prescription to Dr Jorden when he saw him on 10 July 1990. The plaintiff had been taking serapax for some years before this accident for anxiety and it is reasonable to infer that Dr Griffiths would have prescribed serapax for this condition. Further, the plaintiff made no mention about this consultation until it was raised in cross‑examination. His evidence has the hall marks of recent invention. The plaintiff testified that he saw Dr Griffiths again on 31 August 1990 and again was prescribed serapax. Again, no mention is made of this in any of the subsequent medical reports and it seems odd that having consulted Dr Jorden in some detail about the accident on 10 July, that the plaintiff should then consult with his former general practitioner in Perth, rather than deal with Dr Jorden. The plaintiff was unable to give any satisfactory explanation as to why he decided to consult Dr Griffiths save that he must have been in Perth on business, a matter not confirmed by his wife.

Can the March 1991 incident be attributed to the 1990 accident?

The preponderance of evidence is to the effect that back pain fluctuates in intensity and duration and can be intermittent. Further, the medical evidence supports a finding that the symptoms as reported by the plaintiff in the March 1991 incident are not inconsistent with injury to L5/S1 sustained nine months earlier.
Dr Thompson referred the plaintiff to Dr Olsthoorn, an orthopaedic surgeon and thereafter to Mr Vaughan.
Dr Olsthoorn's reports were admitted pursuant to Evidence Act1906 s 79C. Dr Olsthoorn reported that the plaintiff was able to work moderately well as an insurance assessor until March 1991 when he started to develop "a left sciatic-type pain with radiation well down into the leg and intermittent instability of the left leg. [The] instability sensation will come without warning and it has happened about five or six times. [The plaintiff] also has stabbing type pains in the lower lumbar spine which makes sitting for any length of time difficult". Dr Olsthoorn reviewed a CT scan taken shortly after the March 1991 incident and was of the opinion that it showed "very minimal disc protrusion on the left at L5/S1". A CT scan taken on 22 March 1991 by Dr Webster revealed no abnormality. In the absence of evidence of any other scan, I infer that was the scan to which Dr Olsthoorn referred. However, no evidence was called to shed any light on Dr Olsthoorn's interpretation of the scan which seems at odds with Dr Webster's report.
In his report dated 12 August 1991, Dr Olsthoorn refers to a subsequent scan [date unspecified] and states that there was "perhaps a slight increase in the disc protrusion at L5 S-1 on the left hand side….Certainly, his symptoms are slowly increasing." A radiologist's report of that "subsequent" scan was not in evidence and no other medical witness refers to it. In my view, in this report, Dr Olsthoorn was still referring to the scan taken on 22 March 1991.
Dr Morrison, who took a myelogram on 13 March 1992 reported "quite a wide epidural space posterior to the L5/S1 disc. The anterior aspect of the theca is a little flattened but not indented. The left oblique projection shows very poor filling of the left S1 nerve root however this is consistent with a left lateral recess disc lesion. Both S2 nerve roots fill normally - no other symptomatic abnormality. Cervical - minor annular bulge at C7/T1 - all other normal". The under filling of the nerve root can be evidence of pathology. ("Underfilling of the nerve root" refers to a scanning procedure and is not an injury as pleaded by the plaintiff).
Despite the reservations which I have about the plaintiff's over all credibility (discussed in more detail below), the medical notes and evidence of Dr Thompson support a finding that the plaintiff had experienced back pain since the 1990 accident. I also accept the evidence of the plaintiff and his wife as to this. I cannot resolve the difference in the duration of the pain reported by Dr Jorden and Dr Thompson. To some extent it rings true that the plaintiff worked through his back pain and gave priority to his new business and it was only after the March 1991 incident that the pain became severe enough to cause him to seek ongoing medical attention.
The testimony of Dr Vaughan (who was called by the plaintiff) at the first trial and adopted at this trial is that:
"…… it would be too far removed to appoint a specific change to one crash or two crashes and/or the process of degeneration. One can only comment of the evidence of a scan and then go back to the symptomatology which had ideally preceded anything happening after the first crash and then after the second crash. If we had those temporal relationships I could give you a firm answer".
The defendant relied significantly on this answer as demonstrating that the plaintiff could not prove that his symptoms were due to the 1990 accident. However, the answer does not help the defendant's case as pleaded either as Dr Vaughan could not say which accident caused the L5/S1 injury.
In his report of the latest scan taken on 21 August 2000 Dr Spar, neurologist, stated:
"Lumbar - left sided disc bulge at the L5/S1 level.
The discs from L1/2 through L3/4 are normal without an abnormal protrusion or bulge. There is no evidence of spinal stenosis or neural foraminal furrowing.
At the L4/5 level a diffuse circumferential disc bulge slightly flattened the anterior thecal sac but this finding is of doubtful significance and there is no evidence of spinal stenosis or neural foraminal narrowing.
At the L5/S1 level there is a noted diffuse circumferential disc bulge which demonstrates slight asymmetry posteriorly on the left side which just touches and displaces the left S1 nerve root slightly while leaving the right side in its normal position. This nerve root is demonstrated to be slightly larger on sub-adjacent sections suggesting a slightly swollen oedematous state.
Comparison with "prior scan" - demonstrate an unchanged configuration of the disc bulge but the asymmetry in the size of the nerve roots and sub-adjacent sections was not present and therefore this is a newly appearing finding. The disc bulge at the C6/7 level also appears to have regressed slightly with the involvement in the neural foramina no longer identified on the current study."
This evidence was unchallenged. In the meantime, scans had been taken in September 1995 and August 1997 which revealed changes to the L5/S1 level. I find therefore that as late as 2000, when the latest scan was taken, the pathology at L5/S1 had not resolved.

Causation

When determining issues of causation, a value judgment is required by the court applying "ordinary notions of language and common sense": March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 per Deane J at 524. Whether an event caused an injury is a matter of fact and a practical approach to the facts is required.
The evidence is unchallenged that after the 1987 accident the plaintiff suffered a back injury. I have found that it is more probable than not that it was an injury to L5/S1. The effects of this injury resolved after a number of treatments and for at least two years and probably more, the plaintiff suffered no effects from the injury. In 1990 the plaintiff had an accident and suffered pain in his neck and back. I have found that between July 1990 and March 1991, the plaintiff's pain endured. There is no radiological evidence after the 1990 accident and before March 1991 which establishes one way or another whether there was any abnormality to the lumbar spine. Despite the report of the March 1991 scan reporting no injury, Dr Olsthoorn considered that there was a "very minimal disc protrusion on the left at L5/S1" and was of the view that the "symptoms and signs would suggest disruption of a lumbar disc, perhaps a lumbosacral disc. The signs and symptoms however do not totally coordinate and it may be that the disc rupture is of greater importance that then disc protrusion". In the absence of any challenge to this evidence, I find that by March 1991 there was a back injury at L5/S1. The pain did not become severe until then. Given this history, it seems to me that as a matter of common sense and that the back pain suffered after the 1990 accident which by March 1991 had become severe was causally related to that accident and I so find on the balance of probabilities.

The nature and extent of the plaintiff's back pain after the 1990 accident.

The plaintiff experienced some pain immediately after the accident. This was not severe enough to prevent him from working and it seems that he was able to build up his insurance business. There are medical notes which support a finding that the plaintiff consulted Dr Jorden on 10 July 1990 and again on 5 December 1990 specifically with reference to his back pain. Thereafter the medical evidence is equivocal until the note of 12 March 1991 when the plaintiff saw Dr Jorden about the March 1991 incident.
After March 1991, the plaintiff's pain became more severe and he was then, or soon after, in receipt of sickness benefits. His business went down hill because of reasons to which I have already referred. However, although the plaintiff testified that the pain worsened to the extent where he was unable to carry on his business and undertake his usual domestic tasks, I have grave doubts as to the nature and extent of his pain and disability.
Dr Eaton, a general practitioner, who also worked at the Australind Medical Centre, testified that although he did not consult with the plaintiff until 5 January 1992 in relation to the post 1990 back pain, he observed him come into the clinic and recalls the plaintiff moving with discomfort. Dr Eaton noted in his report dated 11 November 1997 that (subsequent to 18 March 1993) "at all times his description of his symptoms, his general demeanour, his gait and his evidence anxiety were entirely consistent with his described problems". He testified that he observed the plaintiff's gait outside the consultation setting and noted that it was consistent.
In late 1995 or early 1996 the plaintiff commenced to assist his wife in her part time cleaning job at a local shopping centre. For 10 months or so, he drove her to and from work six days a week, which took 20 minutes each way. On arrival, he walked behind a self propelled floor scrubber for 45 minutes to an hour. He then waited for his wife to complete her duties before driving home.

Credibility issues

I have serious reservations about the plaintiff's credibility and am of the view that he has significantly exaggerated the effects of the accident both to his doctors and in evidence. I base my view on the following.
The plaintiff swore answers to interrogatories on 19 December 1996. Interrogatory 6 asked "were you employed at any time subsequent to the material date [7 June 1990]?". He responded "no". When cross-examined as to why he did not disclose that he had assisted his wife with her cleaning job in 1995/96, the plaintiff replied that he did not regard himself as an employee and made reference to the workers compensation context of employee.
Viewed narrowly, the answer to this question was strictly correct. However, none of his treating doctors (save for Dr Eaton) nor any doctor he saw for medic-legal reasons reported that the plaintiff had disclosed that he had assisted his wife and what that involved. This was so even after the first trial when surveillance video tapes of the plaintiff working with his wife were admitted into evidence. Dr Eaton did not report anything about the plaintiff's work until after the first trial. Although I accept that there was a discussion between Dr Eaton and the plaintiff about the cleaning job, I cannot be satisfied that it was at or before the time when the cleaning job started as Dr Eaton made no note of the conversation and cannot recall when it was. The plaintiff admitted that he did not tell Dr Home who was briefed by his solicitors to provide an assessment of his work potential. The plaintiff testified that he did tell Mr Vaughan and Dr Bath but those doctors testified that they were not told. I reject the plaintiff's evidence that he told these doctors of his cleaning work as if he had, no doubt the doctors would have taken that into consideration in their assessment of the plaintiff and made mention of it in their reports.
Interrogatory 9 asked of the plaintiff "did you at any time or times subsequent to the material date [7 June 1990] receive income from or carry on a business?" The plaintiff answered that he commenced his loss adjuster business on 30 March 1990 and ceased in approximately April 1993. He also swore that he worked full time, eight hours a day and primarily insurance assessing. In evidence, he testified that he ceased business in October 1992 not April 1993 and that what he swore in answer to Interrogatory 9 was wrong. He was also receiving sickness benefits from about March 1991 but denied that he was ineligible to receive them because he was working full time. If, as he swore, he was working full time, he could not have been eligible for sickness benefits. If he was not working full time, then his answer to his interrogatory is wrong. Either way, the plaintiff's credibility is damaged. The plaintiff also told Dr Goucke, a pain specialist, that he had not worked since the accident which is at odds with his answer to the interrogatory and his testimony.
According to Dr Home's report, the plaintiff told him that he drove from Australind to Bunbury "on occasions", not that he had made that journey six days a week for 10 months or so in 1995/96 when transporting his wife to and from her cleaning jobs. This, along with the evidence mentioned above indicates that the plaintiff was not being completely frank with his doctors and is prepared to mislead the Court.

Video evidence

Surveillance video tapes taken on 10 December 1992, 24 September 1996, 22 and 23 October 1996 and 21 February 1997 showed the plaintiff walking around either Bunbury or Australind and the outside of his house and assisting his wife with her cleaning job. This evidence is very damaging to the plaintiff's credibility. The plaintiff was shown getting into and out of and driving (including reversing) a car; pushing and pulling a "wheelie" bin up his sloped driveway; assembling and pushing the self propelled cleaning machine; clapping or banging together pads from the cleaning machine; using in industrial type broom (very briefly); sweeping up dust; squatting down and getting up again; walking; and leaning up against a wall, on occasions taking all his weight on one leg. The plaintiff did not display any difficulty, hesitation, stiffness or awkwardness when performing any of these tasks and in each video can be seen walking with an unremarkable gait.
Dr Vaughan reported on 9 February 1992 that the plaintiff "commenced getting pain walking with a limp, leaning to the right and having difficulty dressing and undressing because of his pain complaint". Dr Home reported that the plaintiff told him when he saw him on 19 December 1996 that he was regularly walking with a left lower limb limp. Dr Home did not see the limp but when he measured the plaintiff's left thigh on the second consultation, it was a "little smaller" [than the right thigh] and this was more than a "normal" disparity. Dr Bath, an orthopaedic surgeon who reviewed the plaintiff at the request of the defendant, reported that when the plaintiff saw him on 20 February 1997 that the plaintiff told him that "with walking he tends to drag his left leg" and Dr Bath observed that he walked with a "marked limp on the left leg". Yet the video taken on the plaintiff on 21 February 1997 shows him walking at a steady and reasonably fast pace without any sign of a limp. Dr Bath was of the view that such a limp would not have resolved by the next day. On none of the occasions in the video taped evidence was the plaintiff walking with a limp.
The plaintiff also told Dr Bath on 20 February 1997 that he had to open the car door to reverse as he was unable to look out and backwards through the window. A video tape shows the plaintiff reversing his car and turning his head to look towards the rear without any apparent difficulty.
Under cross‑examination, the plaintiff admitted that he did not keep an appointment with Dr Bath on 10 December 1992 and told his solicitors that this was because the brakes on his car rendered it unsafe to drive. He said that he was able to drive to the auto repair shop to obtain parts but that it was too unsafe to drive to the train station to catch the train. He was shown a video tape of him driving his car on 10 December 1992 and he admitted that he drove it to the local shops and into Bunbury on that day. Medical notes apparently made by Dr Eaton on 14 January 1993 refer to the plaintiff's account of why he did not get to see Dr Bath. No questions were asked about these notes. However, they refer to the plaintiff having car trouble "on his way to Perth" to see Dr Bath which is inconsistent with the plaintiff's account at the trial.
When the plaintiff saw Dr Home on 19 December 1996 at the request of his solicitors, he told Dr Home that he experienced back pain when walking or standing for more than 5 minutes, an inability to walk more than 250 metres and an inability to stand in one spot for more than 30 minutes. This consultation was after the first three video tapes showed him walking and moving without any apparent difficulty.
I have treated the surveillance evidence with caution as it is possible to obtain such evidence selectively. Vision on four separate occasions might not present a totally accurate picture of the plaintiff's condition. However, it was not challenged and the plaintiff's counsel specifically declined to insist on strict proof of the video evidence which meant that the person conducting the surveillance was not cross‑examined.
Standing alone, each of the incidents mentioned above would not necessarily cast significant doubt on the plaintiff's truthfulness. However, in combination, they reveal the plaintiff to be a person who is at best lax with the truth. I find the plaintiff to be a man who will avoid telling the truth in order to advance his own case. Overall, I find that the plaintiff has exaggerated his symptoms especially to those doctors briefed to provide medico-legal reports. In the medical notes from the Australind Medical Centre which I infer refers to the plaintiff's complaint that he is taking a long time to see his clients. The note records "obviously playing this for all its worth". There was no specific evidence called about this note and it would not be appropriate in the absence of any other evidence to place any great reliance on it. However, it would seem that whatever doctor saw the plaintiff on that date believed that the plaintiff was motivated to get as much out of his injury as he could.
In those circumstances, it is a difficult task to determine a realistic assessment of the plaintiff's disability. He has suffered from an anxiety condition since 1979. There was no evidence as to its impact on the effects of the back injury and vice versa. Dr Vaughan observed that "Anxiety heightens the patient's pain state, the perception which is what is given by the patient specifically to the attending medical officer is that which we record. Problems of anxiety both heighten and to some degree may exaggerate the patient's pain perception. …… I'm not saying exaggerate means it's not there, but the problem of anxiety is ingrained into chronic pain and it introduces many aspects of uncertainty……… judgment comes in to what jobs might be available and one has to temper what might be reasonable and, remember, I'm a surgeon, I'm not an occupational physician. So I can make a judgment but it may not be the correct judgment".
There are medical notes which refer to the plaintiff having acupuncture and physiotherapy and of referral to a pain specialist but no evidence was adduced about these treatments. There is also a note dated 14 January 1993 which refers to the plaintiff's complaint that he "feels" that he had done further damage to his back when working on his car. There is no evidence about this note.

Capacity for work

The plaintiff testified that apart from intermittent loss adjusting jobs after the March 1991 incident, he has been totally incapacitated from doing any paid work. His work history has been largely in the insurance industry. This has involved assessing insurance claims ("claims officer") and as a loss assessor. The evidence is to the effect that the plaintiff was competent in these areas. Further, Mr Fitzgerald testified that the plaintiff would be able to work as a claims officer.
The plaintiff maintains that he cannot drive, sit or stand for any length of time without pain. He claims to be unable to do any domestic duties and that he is in effect house bound.

In 1996 Dr Home considered that the plaintiff was not capable of doing any work save for as "an agent in insurance sales" but his inability to drive long distances would severely impair his capacity to do that kind of work. He could not foresee the plaintiff doing any other kind of work. However, Dr Home was "unable to explain a number of the symptoms as related to [the] pathologies and in particular the symptoms of giving way in the lower limbs". He referred to the plaintiff's "subjective complaints" as appearing to be "rather extreme". In his report dated 30 October 2000, Dr Home noted that when he examined the plaintiff on 12 October 2000, that a "give-way weakness of dorsi flexion of the left hallux ..is not evident when testing heel and toe walking". Further, "several clinical features, including the history of giving way of the left lower limb and the subjective finding of reported sensory abnormality in the left lower limb are not explainable on anatomical grounds".
Dr Bath opined that "it would not be an unlikely proposition that [the plaintiff's] symptoms could be expected to improve given time". However, he was of the view that in the short term he was unfit although "this could not be taken to be as a permanent degree of incapacity". He also reported in October 2000 that "the degree of stiffness and limitation of movement is more that one would expect on the radiological appearances" although he went on to say that "the duration of these symptoms and signs would allow reasonable comment to say that this disability is long term and ongoing".
In conjunction with the evidence on credibility mentioned above, these views suggest that the plaintiff was exaggerating his symptoms.
In October 1997 Dr Vaughan was of the view that the plaintiff would be capable of returning to the work force in any reasonable sedentary capacity. He testified that people suffering from back pain can adapt their working habits to accommodate the pain such as by getting up and walking around and so on.
Dr Ker, a consultant physician in rehabilitative medicine, reviewed the plaintiff at his solicitors' request on 5 May 2001. Dr Ker was of the view that the plaintiff's condition is permanent. In his report dated 24 May 2001, Dr Ker stated "[The plaintiff] has painful restriction of back movements with added leg pain which intrudes significantly into his waking day. I would quantify his disability as a loss of 22% of the function of the thoraco-lumbar spine". Further Dr Ker considered that the plaintiff does not have the capacity to work in the open workforce [and sees] no likelihood of [the plaintiff] re-entering the workforce in the near future. Dr Ker's opinion as to incapacity for work seems primarily based on the fact that for the last seven years the plaintiff has been certified unfit for work.
Dr Ker reviewed the plaintiff's history and observed that he is presently having no physical therapy and no treatments in the past have been undertaken.
Dr Goucke, head of the Department of Pain Management at Sir Charles Gairdner Hospital, reviewed the plaintiff on 17 May 2001 at the request of his solicitors. He notes in his report dated 18 May 2001 that the plaintiff's "complex pain problem possibly further complicated by the prolonged legal process". He also noted that the plaintiff had complained not only of neck and back pain but also "some arm pain", the latter also being noted by Dr Eaton in 1997. Dr Goucke was of the view that the plaintiff "is significantly deconditioned, he is exercise intolerant, it is very unlikely that any improvement in his physical state will occur unless a major motivational and reconditioning exercise program is undertaken. This would have to be very carefully planned and paced. ….It would be possible given the correct motivational approach to design some sedentary-type of employment for [him]. …There is evidence that cognitive behavioural pain management programs, given the appropriate motivation and compliance with the behavioural and pacing aspects of the program, that some improvement could occur….In [the plaintiff's] case the outcome from such a program would be guarded."
The weight which I can attach to the report of doctors who assess the plaintiff's capacity for work is significantly diminished because of the grave doubts I have about the plaintiff's account of his symptoms upon which those assessments are to a large extent made. There are medical notes which refer to the plaintiff being "shaky" and increasingly anxious. Notes from the Australind Medical Centre reveal him to be beset with financial difficulties and this no doubt had an effect on his anxiety condition and general well being.
Doing the best that I can with the evidence before me, it would seem that the plaintiff is capable even at this stage of doing sedentary work. However, there was little evidence as to the specific type of work, and none as to its availability or whether the plaintiff would need retraining. There is no guarantee that the program suggested by Dr Goucke would result in any improvement. Again, I note from the Australind medical notes that there are notes of referral to a pain specialist and an appointment was made for mid December 1992. By June 1993, the plaintiff still had not seen the pain specialist which is noted. There is another note in September 1993 that the plaintiff's solicitors were to organise and appointment with the pain specialist. On 6 January 1994 the notes record that the plaintiff still has not seen Dr Graziotto. Unfortunately, there was no evidence adduced to explain why the plaintiff did not consult a pain specialist. It is not unreasonable to expect that given the efforts to arrange such a consultation and the level of pain which the plaintiff says he was suffering, that he would make every effort to seek treatment for it. This also causes me to doubt the degree of pain and disability the plaintiff claims he suffered and suffers.
An assessment of the plaintiff's capacity for work post the March 1991 incident is very difficult. I am of the view that the plaintiff could have undertaken some sedentary work. It would not seem unreasonable that he could have worked as an insurance claims officer as long as he exercised, had breaks from sitting for long periods and used an appropriate chair.
Given the plaintiff's exaggeration of his symptoms and his lack of credibility which I have mentioned and the diminished weight of the medical opinions as to his capacity to work, in the end result I have to exercise a degree of judgment. My findings are as follows.

Findings

The plaintiff sustained an injury to his lumbar spine at the L5/S1 level which caused him immediate pain which did not incapacitate him from working until 1991. In March 1991 the pain intensified and the plaintiff was thereafter in receipt of sickness benefits. However, I am of the view that with time off work when the pain became acute (I am unable to specify how often and to what extent this would be necessary) and with appropriate work habits and office equipment, the plaintiff would have been able to work in a sedentary position such as a claims officer. It is difficult to precisely fix the time when this could have occurred as I have found the plaintiff not to be a witness of truth insofar as the effects of the injury to his back is concerned. The video evidence shows the plaintiff to be relatively able bodied from 1992. At least from September 1996, the video evidence reveals the plaintiff to have no difficulty walking and driving. It is my view that the plaintiff should receive an award for loss of past earnings from 1 July 1991 up to an including July 1996 less any income which he received from his loss adjusting business. The latter date is somewhat arbitrary but is the best that I can do given the state of the evidence.

Past loss of earnings

The annual income of a claims officer ranged from $25,000 gross in 1990 to $37,500 in 2001(average of $31,625 gross, $25,125 net).
The plaintiff concedes that past loss of earnings should be calculated on the basis that the plaintiff was 80 per cent incapacitated and claims that loss should be calculated on the basis of an average loss of $20000 net per annum less net income of $9,000 (being partnership income of $9,354 less tax). There is some doubt as to what exactly the actual income from the partnership was as the plaintiff did not lodge any income tax returns and his accountant, who prepared the draft returns, was not called to give evidence. The appropriate figure is calculated as follows:
$20,000 x 5 years  $100,000
Less net partnership income of $9,000                   $ 91,000
Plus interest at the rate of 6% pa (average rate)


6% x $91,000 x 11 years  $ 60,060
Total: $91,000 + $60,060  $151,060

Superannuation

The plaintiff made no claim for superannuation during the course of his case. In response to my query about this during final submissions, counsel for the plaintiff presented a written submission (which drew no response from the defendant) that it must be assumed that the plaintiff's employer would have contributed to a superannuation fund. Employer superannuation contributions have been compulsory since 1992: Superannuation Guarantee Charge Act 1992; Superannuation Guarantee (Administration) Act 1992. Although there was no evidence whatsoever in support of a claim for loss of superannuation, in the absence of any objection by the defendant, I am prepared to make an award for loss of superannuation contributions. I calculate superannuation payments as follows:
Contribution     Gross
       Period  rate         salary     Contribution
01.07.92/30.06.93          5%        $25,500         $1,275
01.07.93/30.06.94          5%        $27,000         $1,350
01.07.94/30.06.95          5%        $28,500         $1,425
01.07.95/30.06.96          6%        $30,000         $1,800
Total contributions   $5,850
Plus interest: $5,850 x 6% x 11 years                    $3,861
$9,711
Less 20% for fund and management fees                 $1,942
Total   $7,769

Future loss of earning capacity

The plaintiff has not satisfied me that it is more probable than not that from July 1996 he was incapable of working as a claims officer to full capacity. In summary, the reasons for this finding include the video evidence which shows the plaintiff to be walking and moving without any difficulty, together with the significantly diluted weight I can give to the medical opinions about the plaintiff's incapacity for work due to the plaintiff's lack of credibility. As well, Mr Vaughan, a respected and very experienced neurosurgeon, who was called by the plaintiff and who was the only medical witness to see and treat the plaintiff before and after the accident, is of the view that the plaintiff's condition is mild and does not incapacitate him from undertaking sedentary work.
From July 1996, I find that the plaintiff could have worked as a claims officer which is a reasonably sedentary position and one for which he was qualified and experienced. In short, I am not satisfied that whatever the plaintiff's present incapacity for work, that that incapacity was caused by the 1990 accident.

Pain, suffering and loss of amenity

It is difficult to make an award of general damages for pain and suffering as I am in significant doubt as to its nature, extent, duration and intensity. However, I adopt the "cut off date" of 30 June 1996 as I did when calculating past economic loss. Again, this is somewhat arbitrary but in view of the findings I have made about the plaintiff's credibility, I am not satisfied as to the cause of the plaintiff's symptoms after that date. In those circumstances I believe an award of $25,000 plus interest is appropriate.

Gratuitous services

The plaintiff claims gratuitous services. He testified that his wife had to help him with his shoes and shoelaces and his trousers up to five times a week when "the pain is severe". Mrs Greenhalgh testified that she also had to wash his back on occasions and would also apply his heat pack and dencorub. She was pressed by the plaintiff's counsel to estimate how many hours a week she spend on these tasks and finally said two or three hours but that she did not take account of the time in terms of hours. I do not accept her assessment of the time taken especially given the paucity of evidence on the issue and the difficulty with which Mrs Greenhalgh made her estimation.
These tasks are ordinarily performed as part of mutual give and take in a marital relationship. However, I accept that when the plaintiff was unable to perform these tasks, his wife would do so with more frequency than otherwise. The evidence, although not particularly compelling or precise, establishes that it is more probable than not that Mrs Greenhalgh was deprived of services which the plaintiff might otherwise perform such as gardening and vacuuming: Van Gervan v Fenton (1992) 175 CLR 327 at 340‑41; 343‑44.
An award for these services is necessarily imprecisely calculated. On balance, I award the sum of $2,000 for gratuitous services. The allowance I make for interest is based on roughly half the interest applicable at the Supreme Court rate: Nolan v Hammersley Iron Pty Ltd [2000] WASCA 304; Grincelis v House (2000) 74 ALJR 1247.
Calculation:
Award  $2,000
Plus interest: $2,000 x 3.5% x 11 years                $   770
Total  $2,770

Special damages

Special damages are claimed for medication and heat packs. I am prepared to uphold the plaintiff's claim for the five years between July 1991 and July 1996 as follows:
Serapax:25 tablets every 2 months at an agreed cost of $3.50 per packet
6 packets per year x $3.50 per packet x 5 years = $105
Panadol:1 packet per month at an agreed cost of $5 per packet
12 packets x $5 per packet x 5 years = $300
Heat pack:1 per year at an agreed cost of $10 per pack
$10 x 5 years = $50
Transport costs are agreed in the sum of $2,362.54
The plaintiff claims future medical costs for the above mentioned medication and heat pack, visits to his general practitioner, travel and a pain program. In view of my findings about the plaintiff's credibility, I am not prepared to award special damages for future expenses of this kind.
The plaintiff claims past medical expenses for visits to his general practitioners at the Australind Medical Centre ($2,179.45); accounts of Dr Home ($780.00), Dr Spar ($408.00, CT scan August 2000), Dr Main (a psychiatrist - $135.00) and Mr Vaughan ($660.00 October 2000 visit). There was no evidence about the consultation with Dr Main and I reject that claim. As to the other claims (save for the visits to general practitioners), it is my view that these consultations and tests were conducted for medico-legal and not treatment purposes and I therefore reject them.
As to the claim for visits to the general practitioners, I would uphold the claim insofar as it relates to consultations from the date of the 1990 accident to July 1996. These are calculated by reference to the schedule filed by the plaintiff in the sum of $1,216.20. However, of this amount, the defendant has already paid $816. Thus I award the plaintiff $400.20.

Summary of damages awarded

Past loss of earnings  $151,060
Superannuation  $    7,769
Gratuitous services  $    2,770
General damages  $ 25,000
Special damages:


Past medication  $      455


Transport costs  $    2,363
GP consultations  $      400
Total  $189,817