Greenhalgh v Baum - [1999] WASCA 142

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: GREENHALGH -v- BAUM [1999] WASCA 142

CORAM: PIDGEON J
WALLWORK J
OWEN J

HEARD: 9 MARCH 1999

DELIVERED : 20 AUGUST 1999

FILE NO/S: FUL 50 of 1998

BETWEEN: WAYNE HOWARD GREENHALGH
Appellant (Plaintiff)
AND
ERNEST ROLAND BAUM
Respondent (Defendant)

Catchwords:

Negligence - Damages - Two motor vehicle accidents - Dispute at trial as to nature of injury in first accident - Not satisfactorily resolved - Trial miscarried

Legislation:

Nil

Result:

Appeal allowed

Retrial ordered

Representation:

Counsel:

Appellant (Plaintiff) : Mr E J Myers
Respondent (Defendant) : Mr J G Staude

Solicitors:

Appellant (Plaintiff) : Max Owens & Co
Respondent (Defendant) : John G Staude

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

Nil

Case(s) also cited:

Abalos v Australian Postal Commission (1990) 171 CLR 167
Beck v Markalinga Pty Ltd (No 2) (1996) SR (WA) 340
Brunskill v Sovereign Marine and General Insurance Co Ltd (1985) 59 ALJR 842; 62 ALR 53
Campbell v R [1981] WAR 286
Devries v Australian National Railways Commission (1993) 177 CLR 472
Giorginis v Kastrati (1989) A Tort Rep 80-233
Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304
Johnson v American Home Assurance Company, unreported; SCt of WA (Master Adams); Library No 940599; 28 October 1994
Jones v Hyde (1989) 63 ALJR 349; 85 ALR 23
Kahn v Armaguard [1994] 3 All ER 548
Koutsouros v WA Security Products (1993) 9 SR (WA) 382
Liszka v Castledine, unreported; DCt of WA (Groves DCJ); Library No D990030; 10 February 1999
Lloyd v Centurion Roller Shutters Pty Ltd (1994) 10 SR (WA) 202
Love v Clarona Pty Ltd, unreported; FCt SCt of WA; Library No 970012; 24 January 1997
March v E & M H Stramare Pty Ltd (1991) 99 ALR 423
Morton v State Government Insurance Commission, unreported; FCt SCt of WA; Library No 97300; 13 June 1997
O'Brien v O'Brien [1948] 65 WN (NSW) 131
Robinson v Patrick Stevedoring (WA) Pty Ltd (1994) 10 SR (WA) 236
SS Hontestroom v SS Sagaporack [1927] AC 37
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3
Strowse v Hales Precision Metal Products Pty Ltd (1997) 19 SR (WA) 68
Taylor v Wundowie Foundry Pty Ltd (1997) 19 SR (WA) 289
Warren v Coombes (1979) 142 CLR 531

PIDGEON J: I agree with the reasons of Wallwork J. I would allow the appeal and order a new trial.
WALLWORK J: These are reasons for judgment after the hearing of an appeal from a judgment given in the District Court at Perth on 27 March 1998.
The appellant had claimed damages arising from injuries he received in a motor vehicle accident on 7 June 1990 when he was the driver of a motor vehicle which was stationary at an intersection in Bunbury. The vehicle was struck in the rear by a vehicle driven by the respondent. The appellant alleged that as a result of the collision he had 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. Because of the view which the learned Commissioner took of the evidence, the appellant was awarded only the sum of $4000 for general damages and no other damages.
At the time of the judgment the appellant was 42 years of age. At the time of the accident he had been nearly 35 years of age. Liability had been admitted for negligence. However it was denied that the appellant had suffered any injury or loss as a result of the accident. It was alleged by the respondent that if the appellant suffered any disabilities, they were due to injuries he had received in an earlier motor vehicle accident on 2 June 1987. In the earlier accident he had also sustained a back injury.
The appellant told the Commissioner at the trial that he had fully recovered from his earlier injuries and had been symptom free at the time of the second accident in June 1990.
After the earlier accident in June 1987, the appellant had first attended Dr Koo and then Dr Jee. He had then seen Dr B Walsh. On 13 May 1988, Dr Gibson had reported to Dr Walsh 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 roots … At the L5/S1 level the appearances are within normal limits".
Dr Walsh referred the appellant to a neurosurgeon, Mr Vaughan. On 16 September 1998, it may be that Mr Vaughan made a mistake in reporting to Dr Walsh, because he said in his report:
"He has no signs indicating nerve root pathology and I think the scan shows that at L5/S1 there has been some deterioration of

the disc from the crash with likely some discal instability which would account for his pain state."

That was not what Dr Gibson had indicated in his report (see above) and there was no evidence at the trial or so far as is known now, of any other scan being available at the time. Dr Gibson had been concerned by signs at the L4/5 level.
Later, after the second accident and on 9 February 1992, Mr Vaughan reported to Dr C Thompson:
"I saw him last some years ago following significant low back problems but which improved with conservative management and I believe at that time the 4/5 level was that implicated. He settled well, continued with his own job and had no symptoms until a new crash in 1990."
That comment was consistent with Dr Gibson's report of 13 May 1988, which is referred to above.
In February 1992 Mr Vaughan continued:
"The scans have demonstrated a likely partial protrusion on the left across 5/1 in accord with symptoms but I am not certain that is the answer and I believe a myelogram should be conducted to see more definitely the site of compression."
On 31 March 1992 Mr Vaughan advised Dr Thompson:
"The myelogram has shown some underfilling of the left S1 root consistent with his major pain state."
On 28 May 1994 Mr Vaughan advised Dr Thompson that he had discussed with the appellant his referred leg pain state:
"…which seems mainly to be in an S1 distribution with soft signs on examination…I will re-scan him to check on the state of the lumbar spine particularly that of the L5/S1 disc which was that under the most consideration."
On 29 November 1995 Mr Vaughan advised:
"The CT as arranged showed no changes that were not known, namely degenerative changes in L5/S1 with a minimally broad based bulging but no evidence of protrusion with the canal dimensions normal."
In his reasons for judgment the learned Commissioner noted that after the first accident and on 30 May 1988, Dr Walsh had reported that the appellant had had a minor prolapse at the L4/5 level without nerve compression. Dr Walsh had also reported at that time, that "the prolapse is minor and not compromising the nerve root."
The learned Commissioner said that on 1 August 1998, Dr Walsh had made a similar report about the disc but had added that right sciatic nerve root irritation was present. In that report Dr Walsh had said:
"1.Relapsed disc L4/5 level with right sciatic nerve root irritation.
…
5.The disc herniation could heal or end up requiring operative removal."
The Commissioner then referred to Mr Vaughan's report of 16 September 1988 (referred to above) which as I have said, perhaps mistakenly refers to the scan showing "that at L5/S1 there has been some deterioration of the disc from the crash with likely some discal instability which would account for his pain state."
When discussing the appellant's medical treatment after the second accident, the Commissioner said that Mr Olsthoorn, an orthopaedic surgeon in Bunbury, had in about early July 1991, viewed x‑rays and a CT scan. He had stated that the x‑rays were normal and that the scan taken in early March 1991, shortly after the appellant had started to develop left‑sided sciatica, "may show a very minimal disc protrusion on the left at L5/S1". Mr Olsthoorn thought the symptoms and signs suggested a disruption of the lumbar disc, or perhaps a lumbosacral disc.
The Commissioner said that Mr Olsthoorn had arranged for another CT scan which showed that there was perhaps a slight increase in the disc protrusion at L5/S1 on the left side.
After discussing other medical evidence and the appellant's pre‑accident history, the Commissioner then turned to the question of causation. The learned Commissioner noted that in a report dated 22 May 1991, Dr Jordan had referred to a past history of L4/5 disc prolapse in 1987 which had given the appellant problems from time to time. He noted that Dr Jordan "may not have been aware of the report of Mr Vaughan dated 16 September 1988 wherein he attributed some deterioration of the disk at the L5/S1 level to the prior accident."
Importantly the Commissioner then dealt with Mr Olsthoorn's evidence. Mr Olsthoorn said he had reviewed a CT scan and thought it might show a very minimal disc protrusion on the left at the L5/S1 level. Mr Olsthoorn noted that the scan had been taken in early March 1991 shortly after the appellant had started to develop left‑sided sciatica. The Commissioner said:
"He caused a further CT scan to be taken. He viewed the new scan and reported that there was perhaps a slight increase in the disc protrusion at the L5/S1 level on the left‑hand side."
The Commissioner said that it was clear from the evidence of Mr Olsthoorn that he thought there was a causal connection between the accident and the appellant's lower back condition. The Commissioner related that Mr Olsthoorn had said that there was a degenerative process in place in the appellant's back. That a person can be completely asymptomatic for many years or a life‑time with a degenerative disc unless some mechanical event occurs to it. Then a trauma event of a relatively minor nature may result in the development of symptoms. Mr Olsthoorn thought that this was the case with the appellant. He said that there was evidence on the CT scan of some disc herniation and slight movement of the nerve root.
The Commissioner then said:
"It is clear to me that when Mr Olsthoorn expressed these views he was not aware of the fact that a scan organised by Mr Vaughan in 1988 showed that at L5/S1 there had been some deterioration of the disc with likely discal instability. It became clear late in the cross‑examination of Mr Olsthoorn that his evidence in relation to causation excluded any consideration of the prior accident and the fact that the [appellant] had a prior problem with the disc at L5/S1 level."
I note here that apparently it was Dr Walsh who had organised the scan in 1988 and not Mr Vaughan. The report concerning the scan is dated 13 May 1988. Mr Vaughan's first report is dated 16 September 1988.
The Commissioner referred further to Mr Olsthoorn's evidence and said:
"He did not know of the prior accident when he reported to Dr Thompson. When he came to learn of the prior accident he thought the [appellant's] injury was to the L4/L5 level and not the L5/S1 level."
It is obvious now that there is serious doubt as to whether the appellant injured himself at the L5/S1 level in the first accident. It seems more likely that at the first accident the appellant injured himself at the L4/5 level, where according to Mr Gibson's report dated 13 May 1988, there "may be very slight postero‑lateral bulging of the annulus on the left side … At the L5/S1 level the appearances are within normal limits." That was clearly Dr Walsh's opinion in May 1988 - see his reports of 30 May 1988 and 1 August 1988 referred to above. It is also consistent with what Mr Vaughan had said in his report of 9 February 1992 when he referred to the first accident and said: "I believe at that time the 4/5 level was that implicated."
In the reasons for judgment when commenting on Mr Vaughan's reports, the Commissioner said:
"Mr Vaughan's previously held view can be explained by reference to his report dated 9 February 1992 addressed to Dr Thompson. He indicated in the report that the L4/L5 level was implicated in the prior accident. There was a genuine oversight by Mr Vaughan of the fact that the L5/S1 level was implicated in the prior accident. When Mr Vaughan was shown a copy of his report dated 16 September 1988 which referred to the L5/S1 level he readily acknowledged that the reference to the L4/L5 level in his report dated 9 February 1992 should have been a reference to L5/S1 level. It may be that the prior accident actually involved both the L4/L5 and the L5/S1 level but I need not take that any further."
However the Commissioner did take the matter further when referring to Dr Thompson's evidence. His Honour said:
"Dr Thompson gave evidence that he was aware that the [appellant] had an accident back in 1987 but he thought the [appellant's] injury on that occasion was to a different level in the spine. He added that the injury was to the L4/L5 level in the prior accident and to the L4/L5 - S1 level in the accident. Dr Thompson did not appreciate that the [appellant] had a prior injury to the L5/S1 level."
The Commissioner noted that Dr Home had stated in his report dated 20 December 1996 that a CT scan of the appellant's lumbar spine taken in mid‑1988 revealed a minor bulge of the L4/L5 level but no changes at the L5/S1 level. The Commissioner said:
"I think that Dr Home's opinion in relation to causation is fundamentally flawed because he was unaware that in 1988 the [appellant] did actually show some deterioration of the disc at the L5/S1 level with likely discal instability."
That finding is likely to be incorrect and is based on Mr Vaughan's probable mistake in his report dated 16 September 1988.
The Commissioner concluded:
"First, Mr Olsthoorn's opinion in relation to causation was unreliable for reasons already given. Secondly, I am not satisfied that Dr Eaton was aware that the L5/S1 level was involved in the prior accident … Fourthly, while there was some evidence of minor disc protrusion at L5/S1 in 1991 and/or 1992, Dr Farris made a radiological report on a CT scan of the lumbar spine taken on 21 September 1995 and stated that the L5/S1 disc showed a minimal broad based bulge but no discrete protrusion was seen. A further CT scan of the lumbar spine was done on 27 August 1997 and on 28 August 1997 Dr Farris reported that at the L5/S1 level there was minor bulging of the disc towards the left side but no feature suggestive of neural compromise."
The Commissioner, after discussion of other medical evidence, came to the conclusion that:
"For all of these reasons the [appellant] has not established on balance any causative nexus between the accident and the particular symptomatic complaints made by him in March 1991 and thereafter. While the [appellant] complained of low back symptoms to a medical practitioner before March 1991, he did so on only two occasions. There was no complaint then about leg symptoms. He was able to continue working full-time in his business and in December 1990 he was virtually pain free."
At the hearing of this appeal, counsel for the appellant contended that the only reasonable inference which could be drawn from all the evidence was that the L4/L5 area was implicated in the first accident and not the L5/S1. He submitted that as the learned Commissioner had really based "a huge amount" of his findings on the fact that the L5/S1 was implicated in the first accident, that was sufficient for the appeal to be allowed. It was submitted that the May 1988 CAT scan and the reports of Dr Walsh and Dr Khoo at that time all referred to the L4/L5 area, as did the report of Mr Vaughan at a later time after the second accident. It was submitted that at that time Mr Vaughan had probably looked at the scan and refreshed his memory. It was submitted that the learned Commissioner's decision had been based on the fact that the L5/S1 had been involved in both accidents and that his conclusions would obviously have been different had he correctly assessed that the L4/5 was involved in the first accident and the L5/S1 in the second accident. It was submitted that the learned Commissioner had wrongly discounted Mr Olsthoorn's evidence and also Dr Thompson's evidence.
It was further submitted that there is no evidence of any scan which shows that in 1988 there had been an involvement of L5/S1. Therefore the Commissioner erred in his conclusion that:
"It is clear to me that when Mr Olsthoorn expressed these views he was not aware of the fact that a scan organised by Mr Vaughan in 1988 showed that at L5/S1 there had been some deterioration of the disc with likely discal instability"
It was conceded at the hearing of this appeal by counsel for the respondent that there had been a CAT scan taken some months before Mr Vaughan saw the appellant in 1988 and that the evidence did not show that there was any other CAT scan taken. Counsel said:
"It wasn't explored in the evidence but the CAT scan I think of May 1998 [it should have been 1988] was put in with a number of other reports. The CAT scan report was put in evidence with a number of other reports by the [respondent]." (My words in brackets)
Counsel for the respondent said that Mr Vaughan had given two reports which spoke of the appellant's pre‑accident condition: He said:
"We don't know whether, when Mr Vaughan referred to the scan, he was referring to his own reading of it or he was referring to the report which had been made of it which was in evidence. He never was asked to identify that report as one which he had taken into account. When he spoke of the scan he was never asked whether he was relying on his own observations or relying second‑hand on the report of the radiologist. In that respect his evidence was a little bit unsatisfactory and I pointed out in my outline that he wasn't re‑examined, even though he was quite clear in cross‑examination and virtually volunteered, that his earlier reference to L4/5 was wrong and the previous problem was also an L5/S1 problem. His Honour has put a lot of weight on Mr Vaughan's correction, as it were."
Counsel for the respondent said:
"All of the documentary evidence, or most of it, indicated an L4/5 change after the first accident, or detected after the first accident. Whether it was caused by it or not is another question I suppose. Then Mr Vaughan says 'No. It was always L5/S1. If I said L4/5 I was just out by a segment. It was an error of judgment on my part'. His Honour has adopted that as a correction by Mr Vaughan of a previous statement that Mr Vaughan made that the earlier problems were at L4/5. It was never taken up in re‑examination."
Those remarks of counsel referred to the cross‑examination of Mr Vaughan where it was put to him that on 9 February 1992, when referring to the first accident, he had said "I believed at that time the L4/5 level was implicated". Mr Vaughan's response was "It shows my judgment was one segment out, wasn't it?". Mr Vaughan was then asked "At what time?" His answer was:
"That’s a good question. I suppose Mr Greenhalgh, I would guess now - I don't suppose there is evidence - had reminded me that I had seen him in 1988. I wouldn't know why we haven't got the records of that interview, but anyhow we don't have them. Then I may have been able to answer you more specifically. I regret that but I can't…I had put it down I thought it was 4/5, but clearly from your records it shows it was 5/1."
It was put to Mr Vaughan that Dr Walsh had been the referring general practitioner and that his report of 1 August 1988 had indicated a relapsed disc at L4/5. Mr Vaughan said "Yes". He was then asked "Are those two levels commonly confused?" His answer was "Yes. There are the two areas … except in specific nerve roots whereby in the majority, if there is a specific nerve root at 4/5, it usually refers to the L5 nerve root and an L5/S1 usually is the S1 root, though sometimes the L5/S1 can pick the L5 root if the disc abnormality is away to the side." Mr Vaughan then discussed disc lesions and their associated nerve root problems.

It is clear in his reasons for judgment that the learned Commissioner placed significant weight on the fact that Mr Vaughan had said that the injury in the first accident had been at the L5/S1 level.
At the hearing of this appeal it was conceded by counsel for the respondent that the evidence in this respect was unsatisfactory, but he contended that it was questionable whether it made a lot of difference in the long-run.
In my opinion, it is very likely that the learned Commissioner was wrong in acting on the assumption that the first injury had been at the L5/S1 level. Most of the evidence pointed to an injury in the first accident at the L4/L5 level.
The learned Commissioner used his view on this question to down‑grade the value of some of the important medical evidence which was called on behalf of the appellant. He completely discounted Mr Olsthoorn's evidence.
It is important to the plaintiff that his cause of action be judged correctly on all the evidence. It appears that this did not happen in this case. The confusion as to what the injury was in the first accident resulted from a number of causes but in my view, the result of it is that the trial has miscarried. The appeal should therefore be allowed and a new trial ordered.
Because the learned Commissioner took an adverse view of the appellant on the question of credibility and because it is not known how far this view resulted from the confusion discussed above, in my view the next trial should be before a different Judge.
There were a number of other grounds of appeal, one of which concerned the question of how far it is necessary for the defence to reveal details of video material which has been taken of a plaintiff before the trial in personal injury actions. It is not necessary to decide that question in this case as it will not now be relevant on the re‑trial. It is better left for another day. It is also not necessary to discuss the other grounds of appeal.

OWEN J: I have seen the reasons for decision that Wallwork J intends to publish. I agree with his Honour's reasons and with the conclusion that the appeal should be allowed. It is regrettable that the matter must go back for a re‑trial but I think it is inevitable in view of the confusion over whether the area affected in the first accident was L4/5 of L5/S1. I do not think it was fully and properly explored in the testimony of some of the medical witnesses and it will have to be revisited.
I agree also that in view of the fact that there may be a re-trial it is not appropriate that the Court deal with the first ground of appeal. The appellant now knows what is in the video material and the prejudice, if any, arising from the fact that it was not disclosed to him prior to trial no longer exists. However, I think the question raised by the first ground is of general importance. I would not like it to be thought that by declining to deal with the issue on this occasion I considered the point to be without merit. It will have to be fully argued and determined on another day.