| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : JONES -v- SYKES TRANSPORT PROPRIETORY LIMITED [2003] WADC 26 CORAM : COMMISSIONER GREAVES HEARD : 11-15 MARCH, 12-14 AUGUST 2002 DELIVERED : 12 FEBRUARY 2003 FILE NO/S : CIV 4888 of 1998 BETWEEN : LYLE RICHARD JONES Plaintiff
AND
SYKES TRANSPORT PROPRIETORY LIMITED
Defendant
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Third Party
Catchwords: Negligence - Liability of employer - Unsafe system of work - Plaintiff long distance truck driver - Driver's seat sloped too far forward - Plaintiff required to adopt awkward driving position resulting in disc herniation and nerve damage - Defendant in breach of duty to provide safe system of work - Assessment of damages - Plaintiff aged 56 at trial - Significant prior lumbrosacral spinal disease - Likelihood of similar injuries occurring in any event - Award reduced by 20 per cent - Plaintiff otherwise likely to continue as truck driver until age 60 - Plaintiff's earning capacity as long distance truck driver destroyed - Plaintiff
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capable of light duties - Damages for non-pecuniary loss 20 per cent of most extreme case - Total award after reduction for contingencies $347,996.05 - Plaintiff's injuries directly caused by driving of defendant truck - Truck not driven in damaged or unsafe condition - Third party liable to indemnify defendant
Legislation: Motor Vehicle (Third Party Insurance) Act 1943, s 7(4)(5)
Result: Judgment for plaintiff against defendant
Judgment for defendant against third party Representation:
Counsel:
Plaintiff : Mr I L K Marshall
Defendant : Mr D G Price
Third Party : Mr B E Lawrence
Solicitors:
Plaintiff : S C Nigam & Co
Defendant : D G Price & Co
Third Party : Lawrence & Howell
Case(s) referred to in judgment(s):
Crombie v Uniting Church in Australia Property Trust (WA) (1997) 17 WAR 291
Giorginis v Kastrati (1988) 49 SASR 371
Graham v Baker (1961) 106 CLR 340
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192
Malec v J C Hutton Pty Ltd (1990) 92 ALR 545
Motor Vehicle Insurance Trust v Scarborough Bus Service Pty Ltd (In Liquidation) [1968] WAR 10
Woods v Multi-Sport Holdings Pty Ltd (2002) 76 ALJR 483
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Case(s) also cited:
Container Handlers Pty Ltd v Insurance Commission of Western Australia & Ors (2001) 25 WAR 42
Dhu v Total Corrosion Control Pty Ltd & Anor [2002] WASCA 173
Insurance Commission of Western Australia v Leigh & Anor (2001) 34 MVR 179
State Government Insurance Commission v CSR Ltd (1999) 29 MVR 29
Walton v Wrights Hardware Pty Ltd, unreported; DCt of WA; Library No 4697; 14 November 1995
Walton v Wrights Hardware Pty Ltd, unreported; FCt SCt of WA; Library No 960484; 22 August 1996
Wilson v Catering Concepts Australia Pty Ltd & Ors [1999] WASCA 197
Wilson v Catering Concepts Australia Pty Ltd & Ors, unreported; DCt of WA; Library No D980170; 19 June 1998
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1 COMMISSIONER GREAVES: In August 1997, the defendant employed the plaintiff as a long-distance truck driver. By par 6 of the substituted statement of claim, the plaintiff alleges:
"6. (1) On the 15th August 1997 in the course of his employment with the Defendant, the Plaintiff was required to drive a K100 Kenworth prime mover ('the truck') fitted with a driver's seat which was defective in that the driver's seat:- (2) As a consequence of driving the truck hauling a road train from Perth to Eucla with the driver's seat in the condition described above the Plaintiff injured his back due to the awkward driving position he was required to adopt and the deficiency of the driver's seat to properly dampen the vibrations caused by the road surface whilst the truck was in motion ('the accident')." 2 The plaintiff alleges the defendant caused his injuries. The plaintiff alleges the defendant was negligent, in breach of statutory duty and in breach of the contract of employment between the plaintiff and the defendant. The plaintiff pleads the following particulars of negligence, repeated at pars 10 and 11 of the substituted statement of claim:
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(b) exposed the Plaintiff to risk of damage or injury of which it knew or ought to have known in that the Defendant with the knowledge that the Plaintiff would be required to drive the truck for prolonged periods over long distances on a regular basis:— (i) failed to provide a suitable driver's seat as recommended by the manufacturer of the truck; (ii) provided the truck with a defective driver's seat in that the driver's seat was tilted forward at an angle of about 45 degrees requiring the Plaintiff to constantly push himself back into the seat to stay in; (iii) provided the driver's seat containing a leaked air bag spring compelling the Plaintiff to put a wooden block underneath the front of the driver's seat to obtain the necessary height to view the road which caused excessive vibration transmitting directly to the Plaintiff's body. (c) failed to provide a safe system of work for the Plaintiff in that the Defendant:—
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with unsuitable and defective driver's seat prior to instructing him on his driving duties; (iii) failed to warn the Plaintiff as to the risks of injury in the event of him driving the truck for prolonged periods with an unsuitable and defective driver's seat; (iv) required the Plaintiff to drive the truck with the knowledge that the driver's seat was unsuitable and defective; (v) caused or permitted the driver's seat of the truck to remain in a condition which made it unsafe for the purpose for which it was provided." 3 The plaintiff alleges by par 7 of the substituted statement of claim he suffered "a disc herniation in the lower back" while driving the defendant's truck. 4 The defendant admits it employed the plaintiff as a long-distance truck driver. The defendant admits that on 15 August 1997 in the course of his employment with the defendant the plaintiff was required to drive a truck hauling a road train from Perth to Eucla. By its amended defence, the defendant denies the alleged negligence, breach of statutory duty and breach of contract. The defendant further alleges in par 8 of the amended defence: "8B. If (which is denied) the Plaintiff suffered injury, loss or damage as alleged or at all the Defendant says that the injury, loss or damage was not caused by the accident as alleged and is wholly, or alternatively partially, attributable to pre-existing degenerative changes in the spine caused by previous trauma and/or natural changes due to age. Alternatively, the Defendant says that any injury or injuries suffered by the Plaintiff as a result of the accident alleged were minor and transient in nature and that the Plaintiff has wholly, or alternatively substantially, recovered from any and each of the alleged injuries and that any ongoing disability which the Plaintiff has is attributable to pre-existing degenerative changes in the spine caused by previous trauma and/or natural changes due to age."
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5 At par 3 of the plaintiff's reply to defence, the plaintiff pleads:
"3. The Plaintiff refers to paragraph 8B of the amended defence and denies that his injury, loss or damage caused by the accident was wholly or partially attributable to his pre-existing degenerative changes in the spine caused by previous trauma and/or natural changes due to his age and further says that his pre-existing degenerative changes did not prevent him from exercising his earning capacity. The Plaintiff further denies that any injury suffered by him as a result of the accident were minor and transient in nature and that he has wholly or substantially recovered from any and each of the injuries and that his ongoing disability is attributable to pre-existing degenerative changes in the spine caused by previous trauma and/or natural changes due to age and further says that his medical condition rapidly and substantially deteriorated after the accident to a degree where he was required to undergo spinal surgery and suffered with ongoing incapacity to return to any form of employment." 6 By its statement of claim against the third party, the defendant claims indemnity from the third party in respect of any liability of the defendant to the plaintiff consequent upon bodily injuries directly caused by, or by the driving of the defendant's truck. The defendant and third party deny the plaintiff's injuries were directly caused by, or by the driving of the defendant's truck. The third party further alleges by its defence to the defendant's statement of claim that the defendant's truck was driven in an unsafe or damaged condition in breach of warranty of the insurance policy granted by the third party to the defendant and the third party is entitled to set off against the defendant any indemnity the defendant is entitled to claim against it. 7 From the pleadings, therefore, it may be observed the defendant and third party deny the plaintiff suffered a disc herniation in the lower back. They deny the driver's seat of the truck was defective as alleged. They deny the plaintiff has suffered disability. They allege that any injury, loss or damage suffered by the plaintiff is wholly, or alternatively partially, attributable to pre-existing degenerative changes in the plaintiff's spine caused by previous trauma or age. The defendant and third party put the plaintiff to proof of all the allegations contained in the statement of claim and further advance a positive case that any disability suffered by the
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plaintiff was due to other causes. The pleadings give rise to the following questions of fact for determination in relation to liability: (i) Did the plaintiff suffer the alleged injury? (ii) Did the plaintiff suffer the alleged injury in the manner alleged? (iii) Was the injury wholly or partially attributable to pre-existing degenerative changes in the spine caused by previous trauma or age?
Did the plaintiff suffer the alleged injury? 8 The evidence of Mr Bryant Stokes was that on 3 October 1997 the plaintiff underwent surgical excision of "a very large disc extrusion between L4 and L5" and the disc fragment was removed. Counsel for the plaintiff asked the professor to explain "the initiating cause of the disc protrusion". He replied (T294): "I'm uncertain of that. Mr Jones has had back troubles for some time as my reports would indicate and the history would indicate but there seemed to be correlation between an episode which occurred during late 1997 associated with truck driving to the east and in which Mr Jones indicated that the seat of the truck was abnormal and that seemed to be the precipitating factor in that period of time for the disc protrusion." 9 Mr Stokes went on to say: "there's no question about the disc protrusion." He was asked for his opinion about how the protrusion occurred. He expressed the opinion at p 296 of the transcript that there would have been some forced flexion of the spine, which is known to produce disc protrusions. He repeated his opinion of 27 February 2002 that a defective truck driving seat may have been responsible for the disc protrusion and concomitant leg pain in the L5 dermatome distribution. He continued (T296): "… I think that on the balance of it, something did occur on that trip which caused the disc protrusion because there was no evidence of a disc protrusion prior to that journey from the history given to me." 10 Without more, it might appear Mr Stokes reached this opinion by application of the logical fallacy post hoc ergo propter hoc. In cross-examination, however, Mr Stokes distinguished between nerve root pain in the left leg and facet joint pain in the right. He explained the disc
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protrusion was compressing on the fifth lumbar nerve root causing pain in the plaintiff's left leg extending to the foot (T366). He distinguished facet joint pain from significant osteoarthritis in the spine which may extend to the knee but not below the knee (T297). He expressed the opinion that someone with this type of spine is more likely to suffer a disc protrusion at some stage than the other person (T366). He expressed the opinion the plaintiff was suffering from "fairly advanced degenerative disease" (T367). He said nerve root pain and facet joint pain are "part of the same pathological process." (T367) 11 Mr Stokes was asked what may precipitate a disc prolapse and he replied (T367): 12 In relation to the precipitation of the disc protrusion, Mr Stokes expanded at p 372 of the transcript: "I think the thing that was most impressive to me and I have only got the patient's description of this was that something suddenly did happen in which the seat collapsed and he found himself having difficulty looking over the bonnet of a truck. Now, to me, if that is true, something acute and quite significant would have happened at that time because if you are driving along and suddenly the road disappears from in front of you I would have thought that's a fairly sudden thing that occurred." 13 Mr Stokes agreed that if the plaintiff suffered a disc extrusion on 15 August and consequent severe leg pain at that time it would have been very difficult for him to continue to drive to the South Australian border on subsequent trips (T373). Mr Stokes continued (T374): "The problem that I am faced with … is that there is not really an exact incident that I could elicit from him in which the
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14 He agreed there was therefore a 50 per cent chance that the disc protrusion would have occurred in any event. In re-examination, Mr Stokes pointed out that degenerative change in the spine often "sits there very happily until something happens." (T378) 15 Finally, Mr Stokes was of the opinion that the episode of the protrusion has well and truly passed (T371) so that the plaintiff continues to suffer from back pain from the ongoing degenerative process rather than the protrusion (T371). He also considered the protrusion hastened the degenerative change because of the loss of disc height, because the disc is extruded and throws more stress on the facet joints (T374). 16 The evidence of Dr Ross Goodheart begins at p 274 of the transcript. In considering the question whether the plaintiff suffered the alleged injury, the evidence of Dr Goodheart is consistent with that of Mr Stokes and on this issue requires no consideration. On this issue, it is also not necessary to consider the evidence of the general practitioner, Dr Pervan, or the physiotherapist, Mr Andrew Wilson. 17 The third party called the occupational physician, Dr Andrew Marsden. The evidence of Dr Marsden was that he was not given a history that the plaintiff experienced left leg pain on 16 August 1997 (T667). In the absence of that history, Dr Marsden questioned whether the plaintiff's disc extrusion occurred then (T672). He accepted, however, that truck driving is a sedentary occupation and long periods of sitting are known to produce relatively high pressures in discs, compared with somebody who is able to get up and able to move about (T673). 18 In cross-examination, Dr Marsden accepted he had no doubt the plaintiff had a disc extrusion as described by Mr Stokes. He accepted an incident can be responsible for an extrusion. He accepted subsequent physical activity can aggravate such extrusion (T680 – 681). Dr Marsden said he found it difficult to assess the extent to which the degeneration of the plaintiff's spine made him more susceptible to the extrusion.
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19 The third party called Dr Michael Murphy who treated the plaintiff in July 1997 prior to his employment with the defendant. Dr Murphy gave evidence that x-rays suggested the plaintiff had widespread degenerative back disease compatible with someone who has done heavy manual labour for decades. There were two severe aspects of his lower lumbar spine, advanced disc degeneration at two levels and facet joint osteoarthritic change at one level. In cross-examination, Dr Murphy accepted his records showed no complaint by the plaintiff of back pain extending into the left leg in July 1997 (T714).
20 The evidence of Mr Stokes satisfies me on the balance of probabilities that on or about 16 August 1997 the plaintiff sustained a disc herniation in the lower back as alleged. I find the disc herniation became aggravated over the ensuing weeks while the plaintiff continued physical work and until he finally collapsed. I turn to the second question identified at the beginning of these reasons.
Did the plaintiff suffer the alleged injury in the manner alleged? 21 The plaintiff gave evidence that on 15 August 1997 he experienced pain in the back and then down his left leg and by the time he reached the South Australian border he could hardly stand up (T24). The plaintiff visited the Silver Chain nurse at Eucla whose report became Exhibit 4. She saw the plaintiff in the morning of 15 August 1997. Exhibit 4 records the plaintiff complained to the nurse of a sore back brought on by the poor truck seat he was currently using. She notes there was no history of any trauma in the 48 hours prior to the onset of symptoms. The plaintiff presented with localised tenderness, aching low back pain, exacerbated by movement, eased a little with rest and a stilted walk unrelieved by mild analgesia. Exhibit 4 records no complaint of left leg pain. 22 The plaintiff gave evidence that new runners were inserted under the seat prior to this journey to stop the seat sliding backwards and forwards. He said he told Mr David Sykes after that first journey the truck seat was no good. He continued (T30): "The second journey I got going and I couldn't keep myself on the seat actually because of the decline of the seat. I just kept on sliding forward, and it got that sore on my bloody backside. … And by the time that I stopped at Norseman, had breakfast, shower and whatever, bit of a sleep, then I got going again and then the seat started to deflate itself and I got down around
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between Norseman and Balladonia. I had to put a block of wood on it, a couple of blocks of wood, to try and stop the seat from going to the floor. … it stopped the seat from going flat to the floor so I could, you know, look over the dash properly and see what was going on, so I could drive the truck properly." 23 The plaintiff said he experienced pain in his back and legs on the return journey to Perth to the extent that he could not get out of the truck. He said he managed to refuel the truck at Norseman with great difficulty and when he was approaching Perth he rang his wife to pick him up from the yard, following which he went to see the physiotherapist Mr Andrew Wilson. He gave evidence that thereafter he made several further trips to the South Australian border. He spoke again to Mr Sykes about the seat. A new seat was purchased. The plaintiff installed the seat himself. 24 The plaintiff could not identify Exhibit 6 as the seat in question (T67). In cross-examination, the plaintiff said that when he started on the second border trip he could not straighten the angle of the seat, it was just set in one position (T69). He said the base of the seat was the problem (T70). He agreed the scissor mechanism was such that the base of the seat remained horizontal to the seat base and added (T72): "… but I know the seat that I was driving, the seat was on an angle." 25 A little later, the plaintiff continued (T77): "It collapsed the other side of Norseman. … The air bags just creased and I was just about sitting on them on the ground. … On the trip the seat started gradually to go down. By the time I got to Norseman or out the other side of Norseman, it just – boom. … The base of the seat was on an angle like that. I kept sliding off it. I had a – my backside was that sore by the time I got to the border - - - … I reckon it was on a – about a 25-degree angle. … I was trying to keep myself on the seat, pushing myself back on the seat to stop me from sliding off because the angle was that much of an angle.
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… If it was 45 degree I would be like that. … It was less than that. It was about 25 degrees. … I couldn't do nothing about the seat being on that angle. … It mightn't have been 45 degrees. I was only guessing at that when somebody asked me, but it definitely was on a steep decline." 26 The plaintiff was referred to his answers to interrogatories where he stated: "The driver's seat was on an angle of about 20 to 25 degrees from its original position. He explained this statement (T84): "Well, when you jump in that truck, your seat is down, right, and then you've got to hit the air bag to pull it up to get it in its right position and when I sat on that seat, it used to slant forwards. I was only guessing at that time of that angle. I couldn't say it was on 45 degrees, couldn't say, you know, a hundred degrees." 27 The plaintiff confirmed the seat slopes forward 20 to 25 degrees when he placed his weight on the base of the seat. Before he placed his weight on the seat, he agreed it was basically flat. He continued (T85): "I'd get in the truck, sit on the seat, because it'd be sitting flat and I'd press the button and my seat could go up and then the angle would be on it. … Yes, up and up, and when you put your weight on it, it used to tilt. … And as soon as you sat on it with your weight, with the pressure on it, you just get that angle. … Slowly creeping down whilst I was doing the trip. I had to keep on hitting the button to try and keep the bloody thing up. … As I got further out on the trip it started to slowly deflate. I used to have to hit the button to keep it going up. By the time I got out the other side of Norseman, it was just boom. That's when I had to put the blocks of wood under it to keep it up."
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28 In further cross-examination, the plaintiff said by the time he reached the other side of Norseman "the whole thing just collapsed and I was just sort of looking over the windscreen" (T88).
29 In cross-examination by counsel for the third party, the plaintiff confirmed that the airbag hydraulic mechanism only lowered the seat up and down (T144). He repeated that when the seat was down, it was not leaning but when he pumped the seat up and sat on it, it tilted forward (T145). The plaintiff confirmed that his case is that the disc extrusion was brought on by something to do with the seat that occurred on 15 August 1997 (T151). Counsel put to the plaintiff that he did not report pain extending to his left foot. The plaintiff said that was because he did not have that pain then (T151). The plaintiff also said the pain he suffered on 15 August 1997 was not "merely a worsening of the pain" he had suffered in July 1997. He agreed after physiotherapy he drove several further trips to the border. He said he thought he was suffering from "muscle damage". He denied experiencing pain extending to his left foot in July 1997 (T153). 30 In re-examination, the plaintiff confirmed the seat tilted forward when he sat on it (T192). Counsel for the plaintiff asked him how he maintained his driving position on the seat and he replied (T193): "I'd have to hang on to the steering wheel and sort of pull myself into position, to hold myself there." 31 He explained his evidence that the seat collapsed on the other side of Norseman and said the seat deflated (T196). During re-examination, the plaintiff repeated that he spoke to Mr David Sykes after his return from the second trip when Mr Sykes told him he would pack the seat up with washers. The plaintiff said that course was not satisfactory. His evidence was that thereafter the defendant purchased a new seat and the plaintiff installed it. 32 In opening the case for the defendant, counsel said the essence of the defence was that the seat was not defective, that it was physically impossible for the seat to have been defective in the way the plaintiff described in his evidence (T434). 33 Mr David Sykes gave evidence that the plaintiff made a verbal complaint to him that the seat was uncomfortable after his first trip to the South Australian border (T439). He said the reason the plaintiff gave him for the seat being uncomfortable was that the angle of the base sloped forward. He said on visual inspection he could not see any problem at all
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with the angle of the base. He could not remember sitting in the seat at that time. He suggested placing space under the front of the seat to change the angle of the base (T441). He said Mr Pat Sheehan reconditioned the seat before the plaintiff made the second border trip. He said the plaintiff rang him from Eucla. He said he saw the plaintiff on his return. He was in pain, he was walking "in a sort of bent over position" (T445). He said the plaintiff asked him to replace the seat (T446). He believed the seat was replaced before the third border trip on 27 August 1997 (T460). 34 Mr Sykes went on to say there was no adjustment at all for the tilt of the base of the seat (T466). He said the only way that the base could be tilted was to mount the seat at an angle (T467). He said after the seat was removed from the truck it was placed in store and subsequently on 19 December 1997 placed in another truck. Thereafter the airbag in the seat developed a problem (T471). He said the plaintiff made no complaint about the function of the airbag in August 1997. He said the vehicle maintenance records made no mention of repair to the airbag in August 1997. Mr Sykes said he had driven the truck himself in early August 1997 and experienced no problem with the airbag (T473). He described the angle of the seat at that time as "horizontal" (T474). Mr Sykes continued: 35 In cross-examination by counsel for the plaintiff, Mr Sykes confirmed the plaintiff complained that the seat was uncomfortable because of the slope after the first trip (T489). He agreed the plaintiff complained the seat was sloping "or that the angle was uncomfortable to him" (T494). 36 He said he could not remember the plaintiff telling him the plaintiff had pain in his left leg during or after the second border trip (T496). Mr Sykes repeated there was no tilt to the seat (T503). Counsel then showed Mr Sykes par 16 of his statutory declaration, Exhibit 40, which reads: "It was on or about the 16th September 1997 that Lyle handled local freight including bales of wool. In performing that work,
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a bale hook was used to manoeuvre the bales of wool as necessary. It was standard loading work. That was his last day of work to date, as following I received phone advice from Lyle he was in pain with his back and would not be able to complete a further trip to the border. He was scheduled to start a trip to the border on the 18th or 19th September 1997. Since then I'm aware of his advices mostly by phone. It came to a point where he needed to have surgery on his back. That treatment I know he is saying, was the result of his truck driving with a seat not suited to his posture. I accept the seat had a forward tilt, but was not seen as a problem until he raised the complaint. I example this by saying I drove the truck with seat fitted for about 8 months approximately 18 months prior to his commencing driving the truck. After I ceased driving the truck to take on the Manager's role, another driver replaced me for a few months and then Bill Reid, telephone 9527 2412 drove it for 12 months until just prior to Lyle taking over. Bill had a shoulder complaint (osteoporosis) and had to retire. There was no suggestion the seat caused him a problem. It did not cause me a problem or the driver who took over the driving of the truck from me." 37 Mr Sykes explained his statement in Exhibit 40 that the seat had a forward tilt but was not seen as a problem until the plaintiff raised the complaint. He said he remembered the seat being horizontal "to look at" (T513). He agreed his statutory declaration of 15 December 1997 was more likely to be an accurate record than his current memory. He agreed spacers were inserted to put the seat at "a comfortable angle" (T515). 38 Mr Sykes was also referred to par 14 of Exhibit 40 which reads: "The next that occurred was Heather Jones phoned me at approximately 9 a.m. on the 16th August 1997 to say she had got Lyle an appointment at Forrestfield Physio at 12.40 p.m., the 16th August 1997 and to pass that message to Lyle as she could not raise him by mobile phone. I did pass the message on to him on his return to Kenwick. By then I could see he was in extreme pain with his back. He had a bent over posture. He at that stage suggested the seat was still no good, being most uncomfortable and be blamed it for the state of his back and said he wanted it replaced. He then left and visited the Physio for treatment."
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39 He said he could not explain his statement in par 14 that the plaintiff blamed the seat for the state of his back on return from the second border trip. He said his recollection now was that the plaintiff first blamed the seat for the injury to his back in September 1997. He accepted that there was a possibility he was now mistaken (T519).
40 In re-examination, Mr Sykes said he had only just become aware the plaintiff was alleging that the seat was basically flat until he placed his body weight onto it whereupon it sloped forwards (T549 – 550). 41 On the evidence of the plaintiff and Mr David Sykes, I find that the seat sloped too far forward for the plaintiff's personal posture or personal sitting position. As he said at p 475 of the transcript, "that is the only way to make sense out of it." Such conclusion is consistent with the evidence of the plaintiff that the seat sloped only when he sat on it and with the evidence of Mr Sykes that on inspection the seat looked horizontal and that the angle of the base of the seat could not be adjusted. It is also consistent with the plaintiff's complaint that the seat was uncomfortable because it sloped. 42 I find that the seat sloped too far forward for his personal posture obviously when, and only when, the plaintiff sat in it. As a result, as alleged in par 6(1)(a) of the amended statement of claim, the plaintiff found he was required to push himself back into the driver's seat to stay in. The plaintiff further alleged in par 10(a)(ii) of the amended statement of claim that the seat tilted forward at an angle of about 45 degrees requiring him to push himself back in the seat to stay in. The plaintiff accepted the angle was not 45 degrees and I so find. I find the plaintiff overstated the angle because of his recollection of constantly pushing himself back into the seat to stay in because the seat sloped too far forward for his personal posture. I accept the evidence of the plaintiff that when he sat in the seat he sloped too far forward to remain comfortably in the seat and at the same time have an adequate view of the road. 43 I find that in constantly pushing himself back into the driver's seat in order to obtain an adequate view of the road, the plaintiff sustained a disc herniation in the manner alleged and in the manner Mr Stokes believed to be likely. Thereafter, I find the disc herniation became aggravated over the following weeks before the plaintiff ceased employment with the defendant. 44 The evidence of the plaintiff that the airbag malfunctioned on the second trip is also relevant to the alleged manner in which the plaintiff
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sustained the disc herniation. There is no evidence that the seat contained a leaked air spring as alleged in par 6(1)(b) of the amended statement of claim. The plaintiff's evidence is that he could not retain a position in the driver's seat to maintain an adequate view of the road. I accept the evidence of the plaintiff that the airbag mechanism did not provide the remedy he sought in the predicament he faced outside Norseman. I accept the evidence of the plaintiff that he put a wooden block or gluts underneath the front of the driver's seat to obtain the necessary height to view the road, as alleged. The evidence of Mr David Sykes, Mr Michael Sheehan, Mr Daniel Hankin and Mr William Reid that they found no fault with the airbag mechanism before and after the second trip does not detract from these conclusions about the manner in which the plaintiff sustained the alleged injury. 45 I turn to the third question for consideration.
Was the injury wholly or partially attributable to pre-existing degenerative changes in the spine caused by previous trauma or age 46 The evidence of Mr Stokes and Dr Marsden establishes beyond doubt the plaintiff had a susceptibility to the disc herniation. Their evidence is the disc herniation and the degeneration of the plaintiff's spine are part of the same pathology. I do not accept the evidence of Dr Marsden that it is unlikely the plaintiff sustained the disc herniation during the second border trip. I accept the evidence of the plaintiff that he had not experienced pain extending into the left foot prior to the second border trip. I find the plaintiff did experience pain extending into the left foot during and after the second border trip from time to time but not to an extent that prevented him from continuing to drive a further four trips. 47 I prefer the evidence of Mr Stokes to that of Dr Marsden that in such circumstances it is more likely than not that the disc herniation occurred during the second border trip. I accept the evidence of Mr Stokes that absent the condition of the driver's seat in the circumstances of the second border trip there was a 50 per cent chance the disc herniation may not have occurred then. I find on the evidence of Mr Stokes that given the plaintiff's susceptibility to a disc herniation because of the pre-existing degenerative changes in the plaintiff's spine, it is more likely than not that there was a relationship between the condition of the driver's seat and the driving position which the seat required him to adopt and the occurrence of the disc herniation.
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The liability of the defendant
48 Given the findings of fact I have made in answer to the three questions identified earlier, I turn to consider whether those findings of fact should lead the Court to conclude the defendant was negligent or otherwise liable to the plaintiff in consequence of the injuries he suffered for failure to provide the plaintiff with a safe system of work. 49 The duty of the defendant to provide a safe system of work is not in doubt. The ultimate issue between the plaintiff and defendant in relation to liability is whether the defendant was in breach of that duty. In Crombie v Uniting Church in Australia Property Trust (WA) (1997) 17 WAR 291 at 300, the learned Chief Justice considered the correct test to be applied to determine whether an employer is in breach of the duty to provide a safe system of work: "In Wyong Shire Council Mason J (with whom Stephen and Aickin JJ agreed) held that the existence of a foreseeable risk of injury did not in itself dispose of a question of breach of duty. The magnitude of the risk and its degree of probability remained to be considered with other relevant factors. As his Honour said in Wyong Shire Council (at 47 – 48): 'In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a
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foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.' " 50 In Woods v Multi-Sport Holdings Pty Ltd (2002) 76 ALJR 483 at 39 et seq Gleeson CJ said: "Because the concept of foreseeability in the law of negligence has been taken to embrace risks which are quite unlikely to occur, and to mean only that a risk is not one that is far-fetched or fanciful, many of the cases which discuss the approach to be taken by a tribunal of fact in deciding whether there has been a breach of a duty of care speak in terms of balancing the magnitude of the risk with the cost or inconvenience of preventing it. But, as Mason J pointed out in Wyong Shire Council v Shirt, ultimately the question of fact is what a reasonable person, in the position of the defendant, would do by way of response to the risk. … Where it is claimed that reasonableness requires one person to provide protection, or warning, to another, the relationship between the parties, and the context in which they entered into that relationship, may be significant. The relationship of control that exists between an employer and an employee, or of wardship that exists between a school authority and a pupil, may have practical consequences, as to what it is reasonable to expect by way of protection or warning, different from those which flow from the relationship between the proprietor of a sporting facility and an adult who voluntarily uses the facility for recreational purposes. I say 'may', because it is ultimately a question of factual judgment, to be made in the light of all the circumstances of a particular case." 51 In Crombie v Uniting Church Property Trust (WA) (supra) the learned Chief Justice recited the duty of an employer to take reasonable care to avoid unnecessary risks of injury to an employee and referred to the decision of the High Court in Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18. At p 301 of the report, the learned Chief Justice continued:
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52 It was common ground in this case the defendant required the plaintiff to spend many hours at the wheel of its truck. In these circumstances, I find the defendant ought reasonably to have foreseen that if its truck seat sloped too far forward for the personal posture of the plaintiff when he sat in it, the plaintiff might injure his back due to the awkward driving position he was required to adopt, as alleged in par 6(2) of the substituted statement of claim. 53 It is then for the court to determine what a reasonable man would do by way of response to that risk of injury. The evidence in this case provides the answer: replace the seat, which the defendant did after the second border trip. In the circumstances of a long-distance truck driver, I conclude the magnitude of the risk and the degree of the probability of its occurrence required the defendant to replace the seat after the first border trip when the plaintiff complained about it, just as the defendant replaced the seat after the second border trip. On the findings which I have made, I conclude a reasonable person, in the position of the defendant would have replaced the seat after the first border trip by way of response to the risk. I conclude, therefore, the defendant was in breach of its duty to the plaintiff to provide the plaintiff with a safe system of work and is liable to the plaintiff in consequence of the injuries he suffered for failure to provide the plaintiff with a safe system of work.
The assessment of damages 54 I turn to the assessment of damages. The assessment of future pecuniary loss is to be carried out in accordance with the conceptual approach explained by the High Court in Graham v Baker (1961) 106 CLR 340 at 347:
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"… an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss." 55 To establish diminution of earning capacity productive of financial loss, the onus is on the plaintiff to prove: (a) the extent of his pre-accident earning capacity; (b) the extent to which that capacity would have been productive of income had the accident not happened; and (c) the extent to which the compensable injuries have diminished his ability to exercise the pre-accident earning capacity. Von Doussa J explained the task in Giorginis v Kastrati (1988) 49 SASR 371 as follows: "The burden of proof rests on the plaintiff. Where damages are claimed for a loss of earning capacity, the plaintiff must prove the extent of his pre-accident earning capacity, the extent to which that capacity would have been productive of income had the accident not happened, and the extent to which the compensable injuries have diminished his ability to exercise the pre-accident earning capacity. It is necessary to emphasise that these matters cannot be satisfactorily proved by medical experts alone. There must also be evidence to prove the basic facts on which the medical opinion depends, and the circumstances of the plaintiff which are necessary to translate the medical opinion into findings of fact pertinent to the assessment of damages for a loss of earning capacity. Medical opinion alone as to the plaintiff's pre-accident and post-accident capacity for work cannot prove the extent to which the plaintiff's earning capacity has been exercised in the past, or the extent to which his residual earning capacity is likely to be exercised in the future. In a case like the present one, it is incumbent on the plaintiff to show how he has used his capacity for work both before and after the accident. The plaintiff will be well advised to produce the best evidence available. That will include whatever records exist as to his pre-accident and post-accident earnings and other income. If a plaintiff attempts to give oral evidence on these topics from memory, unaided by records which are in his possession or power, he invites the opposing party, and the court, to question his evidence. If the records are lost or destroyed it behoves the plaintiff to obtain the information from the sources which lie in his power, or to
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establish that the information cannot any longer be obtained. Such information can usually be obtained from the Australian Taxation Office, employers, parties with whom the plaintiff has contracted, banking records, and so on. If a plaintiff does not adduce evidence of this kind which is in his power or possession many uncertainties are likely to remain. It does not necessarily follow, as a matter of law or fact, that proof of the plaintiff's claim for lost earning capacity will fail. The evidence may nevertheless establish, on the balance of probabilities, the likelihood of some substantial element of loss, and the court will take that into account in assessing general damages: Russell v J Hargreaves and Sons Pty Ltd (1956) 30 ALJ 533. However, the assessment is likely to be a modest one having regard to the uncertainties unnecessarily left open by the evidence. The plaintiff will usually not be heard to complain on appeal that the loss may have been greater. In some cases the failure to adduce the supporting evidence may well cause the court to feel unable to accept the oral evidence of the plaintiff, at least at face value. The plaintiff and his advisers carry a heavy responsibility to ensure that this type of material is properly marshalled together in advance of the trial, and where it is not admitted, to have it introduced into evidence. There will be cases where the nature and extent of the loss alleged will make it difficult or impossible to adduce evidence that permits the court to proceed to calculate damages in a precise way. In these cases, the plaintiff is not to be deprived of damages because the evidence does not permit a mathematical calculation: Hamlyn v Hann and Heagney [1967] SASR 387 per Mitchell J at 401. As Lord Devlin said in Yorkshire Electricity Board v Naylor [1968] AC 529 at 548: '… difficulty in calculation is not ordinarily taken as a ground either for reducing or for increasing the award.' But cases where the damages are, by the nature of the loss, difficult to calculate, are to be distinguished from cases, like the present, where precise calculation is rendered impossible, and even broad assessment difficult, not by the nature of the loss, but by a paucity of evidence where it is clear that it lies within the power of the plaintiff to produce business and taxation records usually maintained by people in employment or
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business or other evidence which could clarify the extent of his income." 56 The standard of proof to be applied was discussed by Deane, Gaudron and McHugh JJ in Malec v J C Hutton Pty Ltd (1990) 92 ALR 545 at 548 - 549: "When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The failure may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high – 99.9 per cent – or very low – 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say over 99 per cent – the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. See Mallett v McMonagle [1970] AC 166 at 174; Davies v Taylor [1974] AC 207 at 212, 219; McIntosh v Williams [1979] 2 NSWLR 543 at 550 – 1. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place."
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57 The plaintiff was born on 29 May 1946. From 1968 until September 1997, the plaintiff was variously employed as a long-distance truck driver. From 1985 to 1989, the plaintiff was employed by the defendant while from 1989 to 1997 the plaintiff was self-employed in the same occupation. 58 The tax returns of the plaintiff and his company (Exhibit 7) disclosed the plaintiff's net income from the year ended 30 June 1994 to 30 June 1997 as follows: 1994 $10,184 1995 $4,577 (net loss) 1996 $14,106 (net loss) 1997 $4,592 and $10,192 59 The evidence of the plaintiff was he drew no wages from his trucking company in 1996 and 1997. Counsel for the third party submitted this evidence establishes the plaintiff earned a "very modest income" in the years before he returned to work for the defendant. The plaintiff accepted he drew no wages in 1996 and 1997. I find these circumstances led the plaintiff to seek gainful employment with the defendant, because he was keen to work and had no other skills. He wanted to earn a living in the only job he knew. The evidence of his work for the plaintiff in August and September 1997 until he could continue no longer is consistent with that desire. I find when the plaintiff returned to work for the defendant in August 1997, he did so in order to exercise his then earning capacity as a long-distance truck driver to the fullest extent possible. 60 It is then necessary to determine the extent to which the plaintiff's earning capacity would have been productive of income absent the disc herniation on 16 August 1997. The evidence of Mr Stokes on behalf of the plaintiff was that prior to 16 August 1997, there was a 50 per cent chance that the disc herniation would have occurred in any event. I accept that opinion. I conclude, therefore, there was a 50 per cent probability the plaintiff would have suffered a disc herniation at some time in the future absent the events of 16 August 1997. 61 On the medical evidence, the imponderable question in this case is, absent the events of August 1997, how long was it before the plaintiff would come to the same fate in view of the condition of his spine. Dr Marsden thought 12 months, but no-one can say. I prefer the evidence
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of Mr Stokes and Dr Goodheart. Counsel for the third party submitted that on the evidence of Mr Stokes I should conclude that the episode of the protrusion has well and truly passed so that the plaintiff continues to suffer from back pain from the ongoing degenerative process rather than the protrusion, and that the protrusion hastened the degenerative change. Counsel for the third party submitted I should conclude that the major problem from which the plaintiff suffers is his pre-existing condition. I do not consider that is the effect of Mr Stokes' evidence. It was Mr Stokes' opinion the plaintiff may have continued as a long-distance truck driver for some time absent the events of August 1997. I accept that opinion. 62 As the majority of the High Court observed in Malec v J C Hutton, questions about the hypothetical effect of degeneration are not capable of scientific proof. Having accepted the opinion of Mr Stokes, the court must adjust the award of general damages to take account of the chance the plaintiff may at some stage before his 60th birthday have suffered a similar disc herniation in any event. In view of the uncertainty about when that may have occurred if at all, I consider it fair to reduce the award of general damages in this case by 20 per cent. 63 Finally, it is necessary to consider the extent to which the plaintiff's compensable injuries have diminished his ability to exercise his pre-accident earning capacity. The plaintiff called the occupational physician, Professor Andrew Harper whose two reports became Exhibit 23. Professor Harper gave evidence (T255) that long-distance truck driving results in continuous strain and stress to the lumbar spine. He gave evidence similar to that of Mr Stokes (T256) that the disc has protruded out and irritated the nerve travelling down the plaintiff's left leg. He said it was common for pain to continue after the extrusion was removed. He said the disc protrusion and the removal of it does not leave the area in some virgin state. He said there is residual inflammation and swelling and subsequent scarring which potentially explains ongoing symptoms while the initial injury to the nerve can result in some ongoing sensitivity. 64 He repeated (T257) low back pain is a very common symptom in long-distance truck drivers and agreed with counsel for the plaintiff that such pain did not preclude the plaintiff from his career as a long-distance truck driver. He continued (T258): "… The first implication is that he certainly can't drive with a herniated disc and if he then has the disc removed and has
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ongoing pain, that is certainly going to interfere with (1) his employability and (2) his ability to drive a truck." 65 Counsel for the plaintiff asked Professor Harper to explain how he reached his opinion the plaintiff is unemployable in the open job market, to which he replied (T258): "Well, based on various items of information. The first is this man left school at the age of 13 and a half, halfway through first year high school. His educational level is therefore low. His work experience has been exclusively manual. He had been a truck driver for 29 years and his injury and the underlying pathology in his back preclude him from working as a manual worker and given his experience in terms of this injury on the open job market, when he goes to ask for a job with his past experience an employer knowing this information would move on to another employee. I mean, his ability to compete is just - he would be unable to sell his limited physical skills given his history." 66 Finally, Professor Harper expressed the opinion (T259) the plaintiff continues to be a man disabled with chronic low back pain and leg symptoms and positive signs in his legs of having had nerve root involvement. 67 In cross-examination, Professor Harper agreed (T262) the risk of back pain in long-distance truck drivers is common. He said such truck drivers may be forced from the workforce before the age of 65 by such low back pain. He agreed with the evidence of Mr Stokes that the plaintiff had chronic degenerative change in his back prior to August 1997. He agreed (T265) the plaintiff was not necessarily suffering from nerve root pain but expressed the opinion it was far more likely, given the evolving nature of the plaintiff's clinical case, the pain was due to nerve root compression in August 1997 (T266). 68 He suggested the plaintiff had a "limited" future as a long-distance truck driver. He said (T268) the odds were not in the plaintiff's favour with those symptoms. He said the plaintiff's unemployability was based not only on his history but his medical diagnosis, his age and his work history (T270). He agreed people certainly make a very good recovery from the removal of a disc protrusion. He said each individual is different. Professor Harper suggested the plaintiff is disabled from the work which he has done in his life and from the jobs which he has
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experience and training for so that the disc protrusion has serious implications for him as a truck driver. 69 The plaintiff also called the neurologist, Dr Ross Goodheart who first saw the plaintiff on 25 May 1998 and thereafter performed neurophysiological studies. He saw the plaintiff again on 24 January 2002. He said (T275) the plaintiff reported little change in his symptoms after surgery and expressed his opinion why this was so (T276): "Well, the patient was complaining of symptoms in the back with radiation to the left leg and I guess at the time that the surgery was performed it was felt likely that there was a nerve component and it was felt likely that removing the compression of the nerve could stabilise symptoms and hopefully improve them, but the aim of surgery is always to prevent progression. Any improvement is I guess a bonus. Often we see improvement though." 70 Dr Goodheart confirmed the plaintiff had significant lumbosacral spinal disease prior to August 1997. By 24 January 2002, Dr Goodheart assessed the plaintiff's symptoms as unchanged and concluded he had a 30 per cent disability to the thoracolumbar spine (T277). He said the plaintiff suffered a permanent neurological disability to the left leg that accounted for 10 per cent of the function. He said he could not see any change occurring in the foreseeable future. There was a possibility of surgery being required and in the meantime the prescription of analgesia. 71 In cross-examination, Dr Goodheart did not agree the removal of the disc extrusion resolved the plaintiff's neurological problems. It seemed to him the symptoms of back pain with radiation into the left leg that the plaintiff experienced prior to the procedure were still there (T278). He agreed the plaintiff showed a significantly degenerative spine prior to August 1997 and expressed the opinion it is possible to remain symptom free with quite significant degenerative changes. He went on to express his opinion about the plaintiff's continuing symptoms after surgery (T281): "… The cause is more multifactorial in my view. There's certainly been nerve damage. There's been nerve damage at the time that the disc was pressing on the nerve and I'm sure that there's ongoing symptoms relating to that nerve damage. As I've mentioned before, the removal of the disc is really to prevent that nerve damage getting worse."
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72 Dr Goodheart went on to say he did not believe that all the plaintiff's symptoms were related to compression of one nerve and there is often a multifactorial cause for ongoing symptoms (T282). 73 Dr Goodheart agreed it was possible to make a very good recovery from the removal of a disc extrusion but he said he thought it was not usual and depends entirely on the quality of the spine (T282). He said he could not be certain the events of 16 August 1997 caused the disc extrusion and continued (T283): "I think that the problem here is that there's a set of symptoms and there's not just one answer so its not like a broken leg you can say, 'Well, that happened there' and I think that often you are in a much better position if you, as you are now, look at all the evidence and make a decision on the basis of what's happened over a period of time." 74 Dr Goodheart did not accept the proposition there is a natural progression from degenerative disease to radicular symptoms. He considered the plaintiff's symptoms related to a combination of a number of factors: nerve problems; disc problems; soft tissue problems and bone problem. (T284) He added: "But the history to me suggests that when there was a trip to the South Australian border, bang, something happened." 75 Dr Goodheart thought that it was difficult to determine which of the plaintiff's residual symptoms relate to the disc extrusion and which relate to his degenerative disease (T285). 76 In re-examination, Dr Goodheart said he could not go past the extrusion and its removal as a cause of the ongoing symptoms given the plaintiff's account of the second border trip. 77 The third party called the occupational physician, Dr Andrew Marsden who saw the plaintiff on one occasion on 19 July 1999. He expressed the opinion (T666): "The plaintiff had a pre-existing significant osteoarthritic problem in his lumbosacral spine at multiple levels affecting both the discs and the facet joints." He continued: "… you're getting to the stage where the disc is getting very parlous and probably thin. They break down from the middle outwards in a star formation and they get thinner and thinner towards the edge until eventually they let go and the disc
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contents will extrude and that can be a relatively trivial event that will set it off …" 78 Dr Marsden stated the occurrence of the disc extrusion could not necessarily be predicted and continued (T668): "… but he wasn't asymptomatic. He had symptoms in his back. He had backache that he was quite open about that he had had for a long time. He described them as muscle problems but they had developed over the years and were quite a regular problem but he was quite happy to discuss that as being a symptomatic problem. Now, in the light of that his likelihood of having more significant problems with prolonged periods of sitting, particularly as a driver, would lead me to think that he may well have a problem with his back. Truck drivers themselves have a higher instance of disc disease, disc protrusion disease. Some references say that it may be as much as four or five times higher than, say, the general expected population." 79 Dr Marsden went on to say he was not convinced the disc extrusion occurred while the plaintiff was driving (T672). The radiological evidence suggested to him nerve root interference may have begun by July 1997 but repeated long-distance truck driving produced relatively high pressures in spinal discs, compared with somebody who is able to get up and move about. (T673) He thought it was difficult to say how likely it was the plaintiff would suffer a disc extrusion absent the events of 16 August 1997. 80 Dr Marsden was asked what advice he would have given the plaintiff prior to 16 August 1997. He said he would have told the plaintiff to make sure the driver's seat was adjusted properly and if there are problems with the seat, to report them (T675). Dr Marsden was asked to comment on Mr Stokes' opinion about the truck seat as the likely cause of the disc extrusion and replied (T677): "I have a problem with that in that he said that he was operating the truck. He had problems with the seat. He had some increase in low back discomfort. … And my impression was that, with some physiotherapy, that settled again and he was back to where he was with his routine back problems from time to time, and I didn't get the impression that he had low back pain with severe left-sided leg pain rising out of the seat that time."
(Page 31) 81 He said he had not been given a history of left leg pain at the time of the second border trip. Dr Marsden did not think it was possible to say how long the plaintiff could have continued long-distance truck driving absent the events of 16 August 1997. In re-examination he said he would not have thought the plaintiff would last more than a year or so given his history (T682). 82 The third party called the physiotherapist, Ms Caroline Holbrook, who was employed by Mr Andrew Wilson in August 1997 and saw the plaintiff on 28 August 1997, and 2 and 3 September 1997. She gave evidence she had not obtained a history of left-sided leg pain from the plaintiff. She formed the opinion the plaintiff should not continue to drive long distances. She agreed in cross-examination the kind of low back and leg pain complained of by the plaintiff often fluctuates from day to day. 83 Finally, the third party called Dr Michael Murphy who saw the plaintiff on 21 June 1997. Dr Murphy referred to his notes and said (T709): "He stated he had been a truck driver for several years and had a chronic back problem and the pain now had affected his right leg. He had been taking a prescribed anti-inflammatory called Dolobid which hadn't really changed his pain a great deal and that was what he presented with on 21 June. I recommended some conservative treatment such as physiotherapy and organised a plain x-ray of his lower lumbar spine." 84 Dr Murphy saw the plaintiff again on 25 July 1997. He said (T710) the x-ray suggested the plaintiff had widespread degenerative back disease including advanced disc degeneration at two levels and a facet joint osteoarthritic change at one level. Counsel for the third party asked Dr Murphy his advice for the plaintiff in July 1997 and he replied (T711): "Due to the fact he is a truck driver, I have found in my personal experience there is no such term as light duties for a truck driver. They are required to load and unload the vehicle, and have to change punctured tyres. As a general rule I find that most workers would prefer to keep working if they have any chance of doing so. This man, who already has advanced degenerative lower back disease, is highly unlikely to further aggravate his back to the extent that it already has done so already by continuing to work."
(Page 32) 85 In cross-examination, Dr Murphy agreed the plaintiff had been a patient of his practice for some years. He agreed his notes contained no reference to left leg pain over those years (T714). 86 In accordance with the dicta of von Doussa J in Giorginis v Kastrati, medical opinion alone as to the plaintiff's pre-accident and post-accident capacity for work cannot prove the extent to which the plaintiff's earning capacity has been exercised in the past, or the extent to which his residual earning capacity is likely to be exercised in the future. I turn, therefore, to consider the evidence of the plaintiff and his wife in this context. The plaintiff gave evidence of his history of employment as a long-distance truck driver prior to August 1997 and said that since 17 September 1997 he has not been in employment. He undertook a rehabilitation programme for nine months in 1998 and 1999. He drove a sweeper for four hours a day at the Pearce Air Force Base. He said he was "quite happy to keep going" (T39). He said the insurers stopped the programme. He said he had difficulty getting in and out of the sweeper and sitting for long periods of time. He undertook an exercise programme between September and December 2001 three times a week. He said he now experiences more "burning feeling" than pain (T39). He said his back is still painful and he experiences burning and numbness in the right leg (T40). He said most of the numbness is in his left leg. He said he cannot drive for any length of time or climb stairs. He says he cannot sleep for more than three hours a night because he has to move around. He said he takes Panadol Forte three times a day. He says sleeping pills make him feel "quite rotten". He said he can lift things "but not too much". He said his truck driving days are over and "there's not much I can do" (T43). 87 In cross-examination the plaintiff said he used to get aches and pains in his back but otherwise he was quite healthy prior to August 1997 (T117). He said he had difficulty recalling what he told several medical practitioners about the condition of his back prior to August 1997 but he said his back never stopped him from driving long-distance or doing the job he had to do (T132). 88 Counsel for the third party cross-examined the plaintiff at some length about his participation in the nursery business carried on at Bullsbrook. He said the property and business is owned by L & H Jones Pty Ltd, controlled by his wife and himself. It is a property of some eight acres. He said he did what he could at the nursery, no heavy work. He said he could not sit down and do nothing. He said he received no wages. He said he could do some potting for no more than an hour, after
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which he just about collapsed (T156). He said he could not dig holes or lay reticulation (T157). 89 He said one Mike Bateman did all the deliveries (T158). When pressed, he agreed he had driven the delivery truck on three or four occasions. When pressed further he agreed he accompanied his wife on many deliveries before Mike Bateman began to work at the nursery. He said his wife used to drive the truck. He did not accept he made the delivery in each case where he signed a docket. He said if he had the docket book, he would get it signed while his wife took the plants off the truck (T165). He said since May 2000, Mike Bateman does all the deliveries. He agreed he has made deliveries of plants in the car now and again. He denied he has carried out many deliveries on his own. He said he has done a few, probably more than he first admitted to. 90 He agreed he was able to drive the sweeper at Pearce Air Force Base four to five hours a night while on rehabilitation. He said his employer would not keep him on because he was on workers' compensation. 91 The plaintiff acknowledged he had low back problems in the years leading up to 1997 and said (T168): "I was never in pain until I jumped in Sykes' truck and done those first trips and that's when things really started taking off." The plaintiff agreed he has travelled to Greenhead to see his brother-in-law and accompanied him to the cray pots. He said he had flown to a wedding in Darwin. He agreed the chronology in Exhibit 2 is a correct account of his attendances on medical practitioners between 10 September 1993 and 15 August 1997. (T175) 92 The plaintiff could not say whether the business of the nursery has recently been improving. He said he had not seen the latest tax return but he supposed the company had made a profit of around $50,000. (T181) 93 Mrs Heather Jones gave evidence she has known the plaintiff since March 1988 and has resided with him since then. They were married on 10 October 1992. She herself holds a C-class driver's licence. She travelled with him for the first two years in his own business after April 1989. She described the nature of the work of a long-distance truck driver (T306). She described his health as "good" between 1988 and 1997. She said he occasionally had backaches, like most truck drivers (T307). She said he missed no work. She said the plaintiff's health was "fine" when he returned to work for the defendant in August 1997. She said at that time the truck driving business was not making money and the plaintiff returned to work for the defendant. She recalled the plaintiff's first trip to
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the border and said on his return he was "not real crash hot and not real complimentary about the seat." (T314) She recalled the second border trip. She said during that trip the plaintiff rang her and told her his back was "stuffed". (T315) She made an appointment for him to see the physiotherapist Mr Andrew Wilson on his return. She said he was shaky, tired and sore on return from the second trip and repeated the statement his back was "stuffed". (T316) She said after that he missed a border trip but went again the following week. She said: 94 Counsel for the plaintiff asked Mrs Jones to describe his condition after 16 August 1997 and she said (T318): "… he can't do what he used to be able to do before and he's always been a strong-willed person and just sort of kept going and now he can't … and he's sort of curled up because he's in pain and even after he's taken his pain-killers he hardly ever sleeps in the bed because he can only sleep for an hour or two when he's really tired and then he's awake again." 95 Mrs Jones said she and her husband occupy the same bedroom two nights a week for a couple of hours at a time. She said he was always a hard worker and also carried out domestic duties when he was at home (T318). He was responsible for vehicle maintenance. 96 Mrs Jones said prior to 1998 she had operated a small wholesale nursery in her own name which was taken over by the company. She said she continued to operate the nursery business after 1998 with one full time employee and assistance from family members. She works three and a half days a week in the nursery business. She explained the role of the plaintiff in that business (T322): "He does most of the minor maintenance: changes over sprinklers; he'll get some plants – like put them in these pots and put tags on them ready for sale. He will do bits of whatever he feels that he can do. He will do some deliveries, like in the ute, car, if he's going that way; whatever. Occasionally in the truck, but it's only a little truck."
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97 Mrs Jones said that since August 1997 the plaintiff has been "very cranky, very short-tempered, very moody, very up and down". (T323) She said she and her husband no longer enjoyed sexual relations because they are scared it will hurt him. (T323) 98 Mrs Jones confirmed the nursery business showed a profit of $45,000 in the last financial year. 99 In cross-examination, Mrs Jones agreed that the expanded nursery business was set up after August 1997 because the plaintiff could not continue work as a truck driver. (T331) Mrs Jones was asked about the plaintiff's participation in deliveries for the nursery. She said the plaintiff's signature on delivery dockets did not necessarily mean he carried out the delivery. She said the plaintiff often accompanied her and she asked him to have the delivery docket signed while she unloaded the truck. (T334) She said the plaintiff has done some deliveries by himself. (T335). She said Michael Bateman began work at the nursery on 1 July 2000 because she was running out of energy. (T337) She said the plaintiff can drive the truck and the car but cannot undertake deliveries of full truck loads of plants. (T340) 100 At p 343 of the transcript, counsel for the third party said to Mrs Jones: "What I want to pin down, and I'm not suggesting in any way, shape or form that before he went to work for Sykes he was as disabled as he was at the end of the day when he was on the floor and taken off to surgery, but before he went to Sykes would you agree with me that he was seeking medical treatment for his back?" 101 Mrs Jones agreed the plaintiff was consulting doctors. She said after 16 August 1997 the plaintiff wanted to continue working and did not wish to claim workers' compensation. (T347) 102 At p 414 of the transcript, counsel for the third party put the following proposition to Mrs Jones: "Mrs Jones, I just want to put to you a couple of propositions relating to your husband. No-one disputes that your husband has a significant back problem and probably neck and shoulder problems as well but nonetheless no-one disputes that he could not go back to heavy-duty haulage driving in the condition in which he now is. Nonetheless, buying the nursery that you |