King v PAMPANO
[2001] WADC 237
•10 OCTOBER 2001
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: KING -v- PAMPANO & ORS [2001] WADC 237
CORAM: YEATS DCJ
HEARD: 17-19 SEPTEMBER 2001
DELIVERED : 10 OCTOBER 2001
FILE NO/S: CIV 1300 of 1999
BETWEEN: PAUL ANTHONY KING
Plaintiff
AND
JOHN PAMPANO
First DefendantST JOHN AMBULANCE AUSTRALIA WA AMBULANCE SERVICES INC
Second DefendantINSURANCE COMMISSION OF WESTERN AUSTRALIA
Third Defendant
Catchwords:
Negligence - Road accident cases - Soft tissue injury - Pre-existing degenerative changes in lumbar spine - Assessment of damages - Turns on own facts
Legislation:
Motor Vehicle (Third Party) Insurance Act 1943
Result:
Damages to the plaintiff for pain, suffering and loss of amenity of $14,000
Representation:
Counsel:
Plaintiff: In person
First Defendant : Mr P Momber
Second Defendant : Mr P Momber
Third Defendant : Mr P Momber
Solicitors:
Plaintiff: Not applicable
First Defendant : Peter Momber
Second Defendant : Peter Momber
Third Defendant : Peter Momber
Case(s) referred to in judgment(s):
Medlin v State Government Insurance Commission (1994-1995) 182 CLR 1
Pollock v Wellington (1996) 15 WAR 1
Purkess v Crittenden (1965) 114 CLR 164
Re Robert John Gillett and Ors; Ex Parte Rusich (2001) WASCA 111
Stewart v Stolzenhein, unreported; SCt of WA; Library No 940449; 24 August 1994
Watts v Rake (1960) 108 CLR 158
Western Australia v Watson (1990) WAR 248
Case(s) also cited:
Nil
YEATS DCJ: The plaintiff claims damages for injuries he alleged he suffered to his back and neck in an accident on 4 June 1993 when he was an ambulance officer in the back of an ambulance attending a patient. The defendants admit liability and the matter has proceeded as an assessment of damages.
The plaintiff presented his case in person. He wished to raise a number of matters concerning the liability of the defendants. His statement of claim alleged negligence on the part of the driver of the ambulance, on the part of the St John Ambulance Service and on the part of the unknown vehicle that pulled in front of the ambulance causing it to stop abruptly. However before me the plaintiff wanted to call evidence that the driver of the ambulance deliberately stopped suddenly, that no car pulled out in front of him and that the motive of the ambulance driver was his prejudice against HIV positive persons, one of whom was being transported as a patient in the ambulance at that time. In his oral submissions the plaintiff suggested the ambulance driver intentionally stopped suddenly.
On the first morning of the trial I ruled that those issues which do not arise from the pleadings could not be raised in the trial. That was because liability had been admitted and their only effect would be on the issue of exemplary or aggravated damages. The plaintiff had not pleaded either exemplary or aggravated damages. I ruled that this evidence could not be brought into this trial which would proceed as an assessment of damages.
The plaintiff had prepared a lengthy chronology of important events containing 109 entries. With the consent of defence counsel I received that as an Exhibit. The importance of the plaintiff's evidence to his claim determined that I examine him based on the chronology rather than have the plaintiff examine himself. That is how the plaintiff's evidence-in-chief was presented. Even then, and despite an overnight adjournment during which I invited him to consider and raise any other matters he wished to place before the court, it later became apparent that he had not fully covered all he wished to say in evidence during his examination-in-chief. I allowed him to give further evidence on the topic of the effect his back injury had had on his care for his young children.
The issue for my determination turned on the plaintiff's credibility. He alleged that his back and neck were injured in the motor vehicle accident in 1993. His neck injury no longer troubled him but his case was that the lower back injury had caused him continuous pain and discomfort from 1993 and was the reason that he resigned in January 1998 as an ambulance officer. The defendants' case is that the plaintiff did suffer a neck and back injury in 1993 but had recovered from those injuries by 1994. The defendants' case is that the plaintiff has no loss of earning capacity and did not resign because of any back injury experienced in 1993.
History
The plaintiff is 44 years of age. He was born in Tasmania on 17 August 1957. He attended Taroona Primary School and attended high school in Tasmania where he was keen and competitive in sports. He played rugby for Tasmanian School Boys and was selected in the Australian School Boys Under 21 Team. He had been a 400 m, 200 m and 100 m sprinter. He was a champion through primary school and high school and kept running for a couple of years after leaving school. He was not a runner at the time of the accident. Neither was he playing rugby at that time.
He was also interested in sailing and had been a keen yachtsman since he was small. He'd been involved in sailing rainbows, OK dinghy's, cherubs, and moths. He now owns a 22 foot yacht, a Space Sailer 22, but since the accident has only been able to sail it with assistance. He also used to enjoy golf although he was never good at it. He also enjoyed bushwalking and abseiling. Since the accident his bush walking has been restricted and he has given up abseiling and golf because of his lower back injury. He also played a bit of table tennis socially but now finds that the quick movements and the bending and twisting trouble his lower back.
The plaintiff worked as a professional fisherman in Tasmania at age 18 and then in 1979 sat TAE exams in Perth. In 1980 he was accepted into the Human Movement Department at the University of Western Australia where he studied human movement and human anatomy, psychology and anthropology. In 1981 he transferred to the University of Otago in New Zealand for one year where he undertook the units of sports injuries and rehabilitation, exercise physiology, biomechanics, sports psychology, sports sociology, research methods and physiology. In 1982 he returned to the University of Western Australia to further study human movement.
The plaintiff has run several holiday swimming programs for the intellectually handicapped and also programs funded by the Department of Youth, Sport and Recreation involving hydrotherapy treatment with spina bifida and cerebral palsy children from Rocky Bay.
In 1984 the plaintiff became a social trainer with the Slow Learning Children's Group and worked with adult clients who had severe behavioural problems. It was a full time job at the organisation's hostel in Maidavale. In 1984 he transferred to Rocherlea Adult Training Centre in Tasmania. He had also done some social training through TAFE. In 1986 the plaintiff worked for a period of seven months at Alice Springs with indigenous children whose problems included petrol sniffing. He then returned to Western Australia and was employed by the Autistic Children's Association to work with teenage children. Again that was a full time position which included weekend work taking children for recreational activities and normalisation programs. In 1989 the plaintiff went to work at Fremantle Hospital in the Transport Department and in January 1990 had a medical clearance for employment by the second defendant. He commenced work with the second defendant as an ambulance officer on 5 February 1990. He was selected in 1991 to represent Western Australia at the National Paramedic Competitions held in Sydney in conjunction with the Institute of Ambulance Officers. The plaintiff tendered a number of documents showing his taxable income but at the end of the day relied upon a Schedule of Past and Future Loss of Earning Capacity. The defendants' accept a figure of $662.86 net per week as the plaintiff's earnings at the time of his resignation in January 1998.
In February of 1992 the plaintiff became a Grade 2 Ambulance Officer and in February 1993 he became a Grade 3 Advanced Life Support Ambulance Officer employed by the second defendant.
The accident
The plaintiff gave evidence that on the day of the accident 4 June 1993 he was working with the first defendant and should have been the ambulance driver that day. He said they received a call from Royal Perth Hospital to pick up a patient and take him home to die with a prognosis of HIV. The plaintiff and the first defendant switched duties and the first defendant drove the vehicle while the plaintiff remained in the back with the patient for the journey. He was sitting on what's called a trundle stretcher with the patient on the side of him. The patient was complaining of being short of breath and started looking a bit blue around the lips so the plaintiff gave him oxygen. To help him breath he pushed up the back of his stretcher so that he was in a sitting position.
According to the plaintiff the first defendant had all the windows down in the vehicle with the air conditioner on despite it being a cold winter's day in June. The plaintiff said the first defendant drove around Cathedral Square much faster than he should have been going. He was accelerating and next thing, without any warning, the brakes were applied suddenly and the vehicle stopped quickly on the eastern side of the square at the intersection with Goderich Street. The plaintiff described the braking as very sudden with extreme pressure applied. He described it as extreme braking, "just bang with the foot". According to the plaintiff the sudden stop catapulted him forward and he hit his back and neck on the fibreglass archway between the back section and the driver's area. I received a bundle of photographs, Exhibit 5, which shows the interior of the ambulance and the position in which the plaintiff was seated and the archway into which he was thrown. The plaintiff caught his lower back and his neck on the archway. The plaintiff said the ambulance did not actually collide with anything but it came to a very sudden stop. The plaintiff said that when the first defendant braked heavily the brakes locked.
The plaintiff experienced pain but he got back onto the trundle stretcher and checked the patient who was okay. He apologised for what had happened. Arrangements were made by radio to notify communications that he had been injured so that backup crew attended in South Perth at the patient's address to help lift the patient. The plaintiff was then taken to Fremantle Hospital.
In the Fremantle Hospital emergency department the plaintiff was x-rayed and given anti-inflammatories. He was told to see his general practitioner, go to a physio and have bed rest. He said he went home and went to a physio a couple of days later and had strapping tape put on at the Fremantle Physiotherapy Centre. However on the evening of that day the plaintiff had a lot of pain and could hardly move and telephoned a locum. The locum gave him an injection and sent him to hospital. St John Ambulance came and transported him to hospital on 12 June 1993 where he remained an in-patient until 25 June 1993. During that period he went to hydrotherapy, had pain relief injections, anti-inflammatories and bed rest. According to the plaintiff the doctors wished to have a CT scan done but the CT scanner had broken down and he was not sent to Sir Charles Gardiner to have that done. The plaintiff said that Dr Almonte was his general practitioner and he was treated by an orthopaedic surgeon Dr Graham Forward while he was in Fremantle Hospital.
The plaintiff went back to work on 27 July 1993 certified fit for light duties only and not to lift more than 15 kg. He claimed however that he was put straight back on the road and immediately worked a night shift. The plaintiff explained that he had also been provided with a corset to wear when he worked. It was a cloth corset with metal strips inside it to be worn under his clothing. By wearing the corset he was able to do any lifting involved in his employment. The plaintiff said however that if he had a heavy patient to lift he always tried to get a backup or call the fire brigade or police or use bystanders. Much of the work did not require lifting where patients were ambulatory. Because of the pain the plaintiff was experiencing he said he sold his motor cycle in 1994 which he had owned since he was 16 years of age because he was no longer able to ride it. The plaintiff had a further flair up in about April 1994 and had a CT scan of his lower back done at that time. He had a long period in 1994 where although he continued as a full time ambulance officer he was not involved in much heavy lifting. He was on annual leave from 9 October 1994 to 5 November 1994 and then sent as country relief to the Collie Sub-Centre from November until February 1995. The plaintiff gave evidence that he lived in the nurses' quarters in Collie and that there were really no jobs; it gave his back a bit of time to heal and catch up. After Collie he had annual leave from 26 February 1995 to 22 April 1995.
On 1 September 1996 the plaintiff suffered what he called an exacerbation of his back injury. He said he had a spinal patient and was involved with others in carrying the person on a stretcher litter. Whilst doing that he stepped in a very small impression in the ground and it caused severe pain in the back radiating down the leg. He said it radiated down the left leg quite sharply. He said in evidence it was the same pain he had always had in his leg but it just really radiated after this incident. The plaintiff said that he has always, since 1993, had lower back pain; it had always been higher up in the lower back and at times it went into the buttocks and just radiated down the left side mostly. Dr Potter treated him for this exacerbation and he was placed on worker's compensation for a period.
Under cross examination the plaintiff identified his worker's compensation claim form, Exhibit 23. On the second page of the claim form the plaintiff was asked to give details of any similar injury or disability prior to the September 1996 occurrence. He wrote his answer "back injury '93 facet joints not muscular as this one". In his evidence the plaintiff denied that statement was true. He explained that he was suffering post concussion syndrome at the time he filled in the worker's compensation form. He denied the 1996 injury was different from the 1993 injury and he maintained it was an exacerbation of the 1993 injury.
In mid-September 1996 shortly after that back injury the plaintiff suffered a very severe head injury which fractured his skull. It emerged in later evidence that the blow to his head was inflicted with a piece of wood by the father of the plaintiff's defacto. As a result of that skull fracture the plaintiff said he suffered post concussion syndrome; he was unable to drive, he couldn’t think clearly and he couldn’t concentrate. It was not until December 1996 that his neurologist Dr Knesevic cleared him for a return to full duties as an ambulance officer.
1997 was an important year for the plaintiff. That year he commenced full time study at the University of Notre Dame while also continuing to be employed full time by the second defendant as an ambulance officer/paramedic. Later that year on 8 June 1997 the plaintiff's son Lachlan was born, an extremely premature birth. On 20 September 1997 the plaintiff slipped on oil and petrol at the scene of a motor vehicle accident and twisted both his knees so that he was again unable to work and was off on a worker's compensation claim. In November 1997 Dr Carter performed an arthroscopy on both the plaintiff's knees.
The plaintiff's resignation
The plaintiff and Mr David Cloughley, the manager of the metropolitan area for the second defendant gave conflicting evidence about events that took place in late November 1997. The plaintiff gave evidence that he telephoned Mr Cloughley on 26 November 1997 and told him that he was considering resigning. This happened while the plaintiff was still on worker's compensation and not working because of the injury to his knees. According to the plaintiff Mr Cloughley came down to where the plaintiff was living to try to persuade him not to resign. According to the plaintiff Mr Cloughley took him for coffee at the Kwinana Hub. The following day the plaintiff said he wrote a very angry letter because of the second defendant's interference and that was his letter of intention of resignation. He took the letter in and spoke to Mr Cloughley the next day. Then several weeks later he sent a letter of resignation addressed to Mr Barker and Mr Kaehne, employees of the second defendant, and his resignation was accepted. He ceased employment on 10 January 1998. When asked why he resigned the plaintiff said in evidence he resigned because "my back was killing me" and he denied that there were any other reasons for his resignation. He said he was unable to lift properly, unable to bend and was aching a lot in the mornings when he got up. Since resigning he has not worked.
The defence called Mr Cloughley as a witness. It was his evidence that he contacted the plaintiff in November 1997 and then went out to his home to see him. Mr Cloughley's evidence was that he mainly contacted the plaintiff because he wanted information on missing penthrane capsules. I was told penthrane is an analgesic drug kept in cupboards at the second defendant's depots. According to Mr Cloughley he had information that some was missing at the Cockburn Depot and wished to discuss that with the plaintiff. According to Mr Cloughley he raised this with the plaintiff and then told him he intended to do a full audit of his work. According to Mr Cloughley the plaintiff then became edgy, began asking about his superannuation and whether if he left under a cloud he could get his full superannuation entitlements. Mr Cloughley said that when he took the plaintiff home he was even more edgy. The following day Mr Cloughley said he received a confidential letter from the plaintiff titled "Intention of Resignation", Exhibit 26. Mr Cloughley said he thought that it was a resignation letter and they were glad to see the plaintiff go. Mr Cloughley said he never saw the actual resignation letter, Exhibit 6, until near the time of the trial.
In the letter of intention of resignation, Exhibit 26, the plaintiff set out in par 2 his reasons for resignation:
"My reasons for my resignation are as follows. I have been employed as an Ambulance Officer with St John since 1990. Since this period I have basically worked in extremely busy Depots with very little relief if any at all. This appears to have had an effect upon me where I am now honestly, totally stressed out. I was not sleeping at all well, felt nervous and was taking my work home with me. I became sick of the constant abuse that is directed towards us and recent deaths this year of two young children especially have hurt me deeply where one constantly asks the question why? This in turn would ultimately affect my home life and my family who must come first which I am sure you can understand. What was once a position I enjoyed and took great pride in has virtually become a nightmare where there is no longer any enthusiasm left just emptiness and hurt. Such feelings may well be attributed to the serious head injury I received a year ago leaving me with frontal lobe damage. DR Oxer advised there may be changes as to did the Neurologist I was under, as the frontal lobe affects emotions and has also left me with the possibility of epilepsy in the future. Injury to my knees was the final straw in helping me make this decision. I am still not sure of the extent of the injury or future limitations it may impose on me but I do not wish to exacerbate this injury any further."
In Exhibit 6, the plaintiff's letter of resignation, the matter was put somewhat differently.
"For the past year I feel that since my head injury I have been persecuted by certain management of St John Ambulance especially by Superintendent Andre with his absurd allegations which are strongly refuted. This alone has caused me much stress as I explained in the letter of intention of resignation given to Superintendent Cloughley.
I have had other injuries in the course of my employment since 1990 the recent being injury to my right knee and feel personally that it is getting too much for me. My back injury is still troubling me greatly causing pain and restricting lifting to a minimum. In the position of paramedic one cannot afford to have or carry a back injury. It is also causing me to have to take time off when bad in sick leave. I feel that if I continue as a paramedic that my back will only greatly worsen and I will again be persecuted for that as it is well known that if an employee has a back injury their time is numbered by management which I personally feel is wrong."
In both Exhibit 26 and Exhibit 6 the plaintiff completed his letters by expressing his enjoyment of his employment with the second defendant. In Exhibit 26 he particularly thanked Mr Cloughley for his support and making himself available if required.
Further history
The plaintiff's daughter Charlie was born on 26 May 1998. In November 1998 the plaintiff became a single parent caring for both his young children. The plaintiff explained that his defacto had become suicidal and therefore he had the children's total care.
The plaintiff did manage to continue his studies at the University of Notre Dame. He studied theology and legal history in 1998, criminal law and contemporary legal issues in 1999 and criminal law and tort law in 2000. He is currently studying contracts, equity and trusts.
In his chronology, Exhibit 1, the plaintiff at number 76 stated that he commenced full time study at the University of Notre Dame in 1997 but in his evidence he resiled from that position suggesting he was studying half time or quarter time. He said he was not working toward a law degree but he was earning credits which could be transferred and he hopes to do the full third year units next year. He said he needs two to two and a half years to complete his degree.
The plaintiff gave evidence that because of his back pain he has not had full enjoyment of his children. Playing with them is extremely difficult when he is unable to run around or play chasey. Lachlan, now aged 4, weighs 20 kilograms and the plaintiff cannot lift him up to hug him. He has to sit down to hug Lachlan. The plaintiff can't play whirly birds, swinging Lachlan around, or push his bicycle or play ball fully with him. The plaintiff has difficulty changing night nappies for both children. He has to drive the children to visit their mother twice weekly. Now they are able to get into the car and do up their seatbelts. The plaintiff said when they were young he had to lift the children. He learned to do so by using his upper limbs and did not put any weight on his back.
The plaintiff said he does not take more powerful analgesics because he needs to be fully alert as the sole carer of his children.
Present symptoms
The plaintiff said he has constant pain in his lower back in the lower lumbar region. He also has pins and needles in both his feet and pain in the left buttock. For his pain he takes Brufen, an anti-inflammatory, Valium and Temazepam. The plaintiff said he has trouble sitting for long periods. After 10 or 15 minutes walking he starts limping a bit with the foot. Standing for long periods gives him severe back pain and, in 1998, the plaintiff said he suffered with haemorrhoids as a result of taking pain medicine. The plaintiff said the pain in his back gets worse if he stands or bends over.
The medical evidence
With the agreement of the defendants the plaintiff tendered a series of medical reports. The defendant called one medical witness, Mr Nicholas Anastas, orthopaedic surgeon. The plaintiff did not notify the Insurance Commission of Western Australia of his injury until at least September 1997; his written notification was received by the Commission in August 1998. The medical reports that are available are very limited so far as his early treatment in 1993 through 1998 is concerned. Once his written claim was received by the Insurance Commission a number of reports were made by expert medical witnesses between 1998 and 2001. What is significant is the very slight amount of evidence available of the 1993 injury and the alleged exacerbation of that injury in 1996. The only witnesses to provide medical reports dealing with the events in 1993 were Dr E Almonte, the plaintiff's general practitioner, and Mr G Forward the orthopaedic surgeon who reviewed the plaintiff at Fremantle Hospital.
Dr E Almonte; In his report, Exhibit 17, Dr Almonte said that the plaintiff attended his rooms on 10 June 1993 advising that he had sustained injuries to his neck and lower back on 4 June 1993. The plaintiff complained of persisting lower back and neck pain and that movements, especially lifting worsened the pain. After examination Dr Almonte found that his condition seemed consistent with soft tissue injuries and recommended he continue conservative treatment including physiotherapy.
On 8 July 1993 the plaintiff again attended with Dr Almonte, this time complaining mainly of lower back pain. He complained that activities such as prolonged sitting, lying and extending forward worsened the pain. He also said that physiotherapy and hydrotherapy offered only slight relief so a trial of laser acupuncture was commenced. Dr Almonte reported subsequent treatments occurred on 9, 12, 16, 20 and 23 July 1993 and that symptoms were slowly improving. Dr Almonte recommended or suggested a corset to be used when he returned to work on light duties. On 27 July 1993 the plaintiff was certified fit for restricted duties requiring further treatment.
The next time the plaintiff was reviewed was on 31 March 1994 when he described ongoing lower back pain often worse when walking and with prolonged sitting. The plaintiff told Dr Almonte his sleep was often disturbed because of his back pain and that physiotherapy and home exercise were no longer helping but he had been at work since January 1994. Dr Almonte ordered a CT scan of the lumbar region.
It is significant that the plaintiff attended on Dr Almonte in November 1994, twice in May 1995 and again in July 1995 but on none of these occasions did he make any reference to any ongoing back pain. The plaintiff was next seen by Dr Almonte on 5 August 1998; in that visit he described severe head injuries in September 1996 and ongoing lower back pain. Dr Almonte was unable to advise whether the back symptoms had been exacerbated by the assault. Dr Almonte ordered plain lumbar x-rays and ordered a repeat CT scan for the lower lumbar spine. As a result of the changes noted in that 1998 CT scan Dr Almonte referred the plaintiff to Mr Bannan, a neurosurgeon. Dr Almonte also commenced a trial of laser acupuncture in September 1998 and prescribed dothep to assist with pain management. In March 1999 the plaintiff reported pain radiating to both buttocks and legs despite regular exercise and hydrotherapy. In view of the ongoing symptoms Dr Almonte ordered facet joint injections which were carried out by Dr Anderson, a pain specialist at St John of God Hospital in Murdoch. Despite the injections the plaintiff had no improvement. The plaintiff was on analgesics including valium and a further review was organised with Mr Bannan who referred the plaintiff to Dr Peter Woodland for a second opinion to see whether he would be a candidate for a fusion.
In August 1999 Dr Almonte declared the plaintiff unfit for his pre-accident duties as an ambulance officer but noted the amount of time that elapsed between his consultations in July 1993 and March 1994 and then the further consultations in August 1998. Dr Almonte noted that he was not involved in either the treatment for the plaintiff's alleged exacerbation of his lower back in September 1996 nor with his severe head injuries a few weeks later.
Mr Graham Forward's (orthopaedic surgeon) reports are very brief Fremantle Hospital notes. The first indicates that on 25 June 1993 the plaintiff's right-sided back pain had settled down substantially but he had some sciatica radiating down into his left foot. Mr Forward said he would not be fit for work for at least another two weeks and if he had further symptoms a CT scan was called for. When Mr Forward reviewed the plaintiff on 6 August 1993 at Fremantle Hospital he noted that the plaintiff was back at work and had had no more sciatica or pins and needles in the foot but he did have an area of localised back pain when he was lifting at work.
I also received a letter from Fremantle Hospital indicating that the plaintiff only wished to release details related to the dates of 12 to 25 June 1993. The letter confirms the plaintiff re-presented to the emergency department on 12 June 1993 with acute exacerbation of back, left buttock and calf pain. On examination he was tender over the L4/5-L5/S1 region with adjacent paravertebral muscle spasm. Power tone and sensation were normal. He was admitted to hospital under the care of Mr Forward, the orthopaedic surgeon, and slowly improved with hydrotherapy, analgesics and non-steroidal anti-inflammatory medications and was discharged home on 25 June 1993 but advised to remain off work for two weeks.
The only other medical doctor who saw the plaintiff between 1993 and 1998 was Dr Graham Potter. Dr Potter saw the plaintiff on 3 September 1996 following an accident the previous day. He only saw him on two occasions regarding that injury, on 3 September when a first medical certificate was issued and on 6 September when a progress certificate was issued. Dr Potter went on to say that he understood that the plaintiff had suffered a back injury in 1993 and felt that this incident had exacerbated that injury. Dr Potter had not been involved in the plaintiff's treatment since September 1996. In an earlier opinion on 23 September 1999 Dr Potter said it would seem to him that his injury in 1996 would be classified as an exacerbation of the 1993 back injury because of the similar symptoms.
A number of specialists then reviewed the plaintiff beginning in August 1998 after he gave written notice to the Insurance Commission of his injury. All of these specialists relied entirely on the plaintiff for the history of his back pain.
Mr Paul Bannan, neurosurgeon, first saw the plaintiff on 24 August 1998 and continued to review him as requested. His opinion in September 2001 is that the plaintiff is not fit to return to work as an ambulance driver and is therefore totally incapacitated to return to his pre-accident employment as a result of the back pain secondary to the motor vehicle accident in June 1993. Mr Bannan believes that the plaintiff's ongoing back pain is due to the degeneration in the lumbar spine particularly at L5/S1. He believes the direct effects of the motor vehicle accident have largely worn off and his ongoing pain is related to lumbar spondylosis. He also expressed the opinion that the 1996 incident exacerbated the lumbar spondylosis. Mr Bannan went on to say that the degeneration in the L4 and L5/S1 disc pre-dated any accident including the accident in 1993. The accident in 1993 probably made the disc degeneration symptomatic and the exacerbation in 1996 worsened the pain from the lumbar spondylosis. Mr Bannan found that the plaintiff was fit to work in a sedentary job and noted that he was currently studying law but would not be fit for any repetitive heavy lifting or forward bending. He did not believe he needed any regular medical review and the only treatment was to continue conservative treatment involving exercise and hydrotherapy which the plaintiff could organise himself. Mr Bannan recognised massage as a short term remedy but did not consider vitamin tablets would play any part in the management of back pain. Mr Bannan commented that haemorrhoids can be secondary to taking analgesics which may cause constipation and therefore can exacerbate back pain requiring strong analgesics which can exacerbate haemorrhoids. Mr Bannan found the plaintiff to have degeneration in the lower lumbar discs and that he was not a candidate for spinal fusion.
Mr Peter Woodland, an orthopaedic surgeon and spinal surgeon, reviewed the plaintiff in September 1999 at the request of Mr Bannan. He found that the 1998 CT scan showed multi-level, relatively mild disc bulges with some degenerative change involving the lower two facet joints at the L4/5 and L5/S1 levels; the MRI scan in September 1998 showed signal loss involving those two disc levels with some mild disc bulging at the L5/S1 level but no evidence of nerve root impingement. It was Mr Woodland's opinion that the plaintiff would be better off if he could avoid surgical treatment. Mr Woodland noted that while, theoretically, surgical fusion would help his pain he had concerns that surgery would not help or might actually worsen his pain. Mr Woodland also noted that although his pain could be improved by analgesic medications the plaintiff was, understandably, not prepared to tolerate possible side effects because he was looking after two young children as a single parent.
Dr R Duncan Anderson, a specialist anaesthetist and specialist in pain management, arranged to inject his lower two lumbar facets bilaterally but found that after the facet injections he had had no pain relief even for a short time and therefore discontinued that process. The plaintiff was offered a place on the Pain Understanding and Management Program ("PUMP") at Fremantle Hospital but he declined.
Mr George T Wong, neurosurgeon, reviewed the plaintiff on 5 October 2000. He noted that according to the history given to him the plaintiff's current problems are as a result of the 1993 motor vehicle accident. Mr Wong noted that after the 1996 incident the plaintiff's back pain reverted to his pre-aggravation state. Mr Wong considered that the disc degeneration he noted in the plaintiff is more age-related than related to the incident in 1993.
Dr Alan Home, a consultant in occupational medicine, reviewed the plaintiff on 13 June 1999 concerning his lower back and knee complaints. While Dr Home considered it possible that the plaintiff had sustained an injury to the lumbo-sacral disc in his 1993 accident he believed there was some uncertainty about that because the CT scan performed in April 1994 was reported to demonstrate a left-sided disc protrusion while the current radiological appearance would show that that has resolved. Dr Home went on to note that there is MRI scan evidence of disc degeneration at L5/S1 with mild changes also at L4/5 and central posterior disc protrusion at L5/S1. But Dr Home noted that this type of disc protrusion is quite common in the asymptomatic community and is of uncertain clinical significance. Dr Home stated his view that it is probable that the CT scans and MRI reflect progressive disc degeneration at the L4/5 and L5/S1 levels but in his view the extent to which the progressive degeneration relates to the 1993 accident is uncertain. The plaintiff in his evidence said that there were errors in Dr Home's report. He denied that he told Dr Home anything at all and said that Dr Home's history was taken from reports. The plaintiff denied specifically a comment by Dr Home at p 5 of Dr Home's report where it is said that the plaintiff told Dr Home that he had deferred his mid-year examinations until early in August and believed his study had been effected by his limited sitting tolerance. The plaintiff said that was not true and that his problems with study were limited by the medications he was taking and not by his limited sitting tolerance.
Mr Nicholas C Anastas, orthopaedic surgeon, was called by the defendant and gave evidence that he saw the plaintiff on one occasion on 17 April 2001. Mr Anastas took a history from the plaintiff, examined him and studied the various CT scans and MRI imaging that had been done of the plaintiff's lumbo sacral spine. Mr Anastas' diagnosis was that the progressive changes seen on imaging are consistent with the natural progression of degenerative changes in his lumbar spine which would be contributing to his symptomatology. Mr Anastas said there had been progressive degeneration of his spine at least from June 1993 up until 8 August 1998 which was evident in the radiological reporting. Mr Anastas was unable to say when it started but that it is a progressive thing that occurs in all people. Mr Anastas went on to say:
"Further, following resolution of the aggravation to his lower back in early September 1996, any spontaneous increase in his symptoms would be due to the natural progression of degenerative changes, rather than to the incident on 4 June 1993 per se. In apportioning his present disability I would put 50% as being due to the incident on 4 June 1993 and the remaining 50% as being due to the natural progression of degenerative changes."
Mr Anastas went on to say the plaintiff would not be fit to return to his pre-accident occupation because of the bending and lifting involved in working as an ambulance driver/paramedic. Mr Anastas said that he would, however, be fit to work in any clerical capacity including working as a lawyer.
Mr Anastas went on to explain his apportionment of 50% to the incident on 4 June and 50% to normal degenerative changes on the basis of the history that the plaintiff had given that he has had continuing pain in his back since 1993. Without that history Mr Anastas said he would have no problems saying that all of the plaintiff's symptoms were due to degenerative change in his lumbar spine.
Mr Anastas also gave his opinion that the incident on 4 June 1993 would not have predisposed the plaintiff's lumbar spine to the acceleration or development of degenerative changes. That was because he did not suffer any fracture or joint injury. The x-rays were quite normal. Mr Anastas said that for him to say that a specific injury will lead to degenerative changes he would want to have some joint involvement or a fracture involving a joint. He would want to see some disturbance of the articular surface which Mr Anastas did not see in this case. Under cross examination Mr Anastas said that for him to say that a particular injury to the spine caused early development or increase in pre-existing or non-existing degenerative changes in the spine he would want to see radiological evidence of some joint disturbance such as a fracture going into the joint. Just a thump in the back would not give you arthritis in the back.
In his report Mr Anastas had noted that the plaintiff had told him that the aggravation to his lumbar spine in 1996 had completely resolved. Under cross examination the plaintiff suggested to Mr Anastas that he did not say that but Mr Anastas gave evidence that he had dictated the report in the plaintiff's presence after taking the history and examining the plaintiff and if the plaintiff hadn't agreed with it he should have said something to Mr Anastas at the time.
Under cross examination Mr Anastas stated that he reached the figure in his report of 7.5% loss of efficient use of his thoraco-lumbar spine by reference to a manual on the Assessment of Disability by a Mr Webb. Mr Anastas denied using the American one but said the assessment was made in accordance with Item Number 36C of Schedule 2 of the Worker's Compensation and Rehabilitation Act. In his submissions the plaintiff made much of that admission by Mr Anastas and referred me to the Full Court decision in Re Robert John Gillett and Ors; Ex Parte Rusich (2001) WASCA 111. Miller J in Gillett's case at par 29 criticised the use by the Medical Assessment Panel of recommended impairment figures for certain aspects of lumbo sacral spine impairment as being fraught with danger, involving as it would the use of a formula for the assessment of permanent disability which had no statutory authority. In such circumstances Miller J stated in par 30:
"There is a distinct danger that medical assessment panels in using either or both the AMA and US guide are abdicating their responsibility of an independent medical assessment of permanent loss of the efficient use of part of the body as required in items 36A-36C of Schedule 2 to the Act".
The plaintiff did not understand the distinction in this case that Mr Anastas was not performing a statutory function when he gave his report, Exhibit 24, and the principle in Gillett's case has no relevance to his case.
Credibility
There were a number of problems with the plaintiff's evidence. Under cross examination the plaintiff maintained that despite his years as an ambulance officer attending the scene of motor vehicle accidents he was not aware in 1993 that there is insurance cover for people involved in accidents and that they can make claims with the Insurance Commission of Western Australia for damages for injuries sustained in motor vehicle accidents. The plaintiff gave evidence he only learned that he could make a claim in 1997 or 1998 when George Carter, a doctor treating him for his leg, told him he could. Such lack of knowledge on the part of this plaintiff seems very surprising to me for a person working as an ambulance officer. Later in the trial the plaintiff tendered a copy of a letter he had written to the second defendant on 21 August 1998, Exhibit 37, which contradicts his evidence about that. In par 2 of that letter the plaintiff said:
"I contacted the personnel department in regards to a query I had and asked whether it should be reported to the Insurance Commission of Western Australia under Third Party Vehicle Insurance. I believed then in 1993 I spoke with Mr W. Gallyott and was advised accordingly that no it did not come under a motor vehicle accident and therefore the Association would not report it as such."
That paragraph would indicate the plaintiff well knew in 1993 that an injury suffered in a motor vehicle accident should be reported to the Insurance Commission but was advised by an employee of the second defendant that this incident did not come under a motor vehicle accident and would not be reported. In my opinion Exhibit 37 contradicts the plaintiff's sworn evidence about this matter.
If the plaintiff was aware in 1993 as one would have expected him to have been of the need to report his back injury to the third defendant, his failure to report the injury until at least September 1997 takes on an added significance. One reason for this delay may well have been, as the defendants suggest, that he recovered from his soft tissue injury to his lower back so that there was nothing to report. That is consistent with Dr Almonte's evidence that the plaintiff did not complain of any back pain during consultations in November 1994 and in May and July 1995. The plaintiff's knowledge about this matter when he so strongly protests lack of knowledge is consistent with the plaintiff suffering natural progressive degenerative symptoms in his back and belatedly seeking compensation from the defendants.
The success of the plaintiff's claim depends on my acceptance of his evidence that he has had continual back pain since the 1993 accident. The medical evidence does not support his evidence about that; in particular Dr Almonte's reports do not assist him. Dr Almonte was the plaintiff's general practitioner and the only medical doctor who treated the plaintiff after March 1994 until he was seen by Dr Potter on two occasions in September 1996. During four attendances with Dr Almonte (November 1994, twice in May 1995 and once in July 1995), Dr Almonte reported the plaintiff did not mention any ongoing symptoms or pain in his back. If, as the plaintiff contends, he did suffer continuous back pain during that period, I find it surprising he did not mention that pain to Dr Almonte. During the same period the plaintiff continued full time employment as an ambulance officer, although he was on annual leave and on country relief in Collie from 9 October 1994 until February 1995. If he was suffering continual back pain I would have expected him to have discussed that with his GP, Dr Almonte, during those visits.
The plaintiff claimed throughout the trial that he saw a number of doctors for his back pain during the 1993 to 1998 period besides Dr Almonte, Mr Graham Forward and Dr Potter but, he said he was unable to name those doctors. He claimed MMI, the original insurer, had paid their accounts and would not provide him with information. The plaintiff tendered Exhibit 31, an account from a Dr. B. Cowan, for a home visit. He claimed he was not able to trace Dr Cowan but relied on Exhibit 31 which he said bears an MMI number and not his Medicare number. The plaintiff explained this is why he has had trouble trying to track down the doctors who treated him, because there is no Medicare number.
The plaintiff also claimed that he consulted a number of emergency room doctors from time to time in the course of his employment but, of course, they did not prepare reports. There was some support for that evidence. The plaintiff called Peter Anthony Vince, an ambulance officer who he had known and worked with for many years for the second defendant. Mr Vince gave evidence that emergency room medical staff are consulted by ambulance drivers from time to time. He said he had done so.
One problem with having the plaintiff acting in person in his own claim was that his closing submissions became unsworn evidence from the bar table. For example, in closing, the plaintiff submitted he had seen Dr Potter on more than two occasions for his back problems in 1996 but Dr Potter told him he could only put down the amount of times the doctor had written a certificate so he could only say that he had seen him two times. Not only is the plaintiff's submission unacceptable as being hearsay and contrary to the evidence but it also defies common sense. If the plaintiff had given that evidence on oath I would not have accepted it. I do not accept that a doctor would not have set out from his records all the occasions when he reviewed or treated the plaintiff.
Part of the plaintiff's case depends on my acceptance of his evidence that the reason he resigned his employment with the second defendant was the continuing back pain that he had suffered since the 1993 accident. Unfortunately none of the letters the plaintiff wrote to the second defendant concerning his resignation support that contention. Exhibit 26 the plaintiff's letter of intention to resign dated 28 November 1997 speaks of his serious head injury, the stress associated with his employment and the injuries to his knees as the reasons he intended to resign. In Exhibit 6 his letter of resignation, dated 15 December 1997, the plaintiff spoke of his head injury, his right knee injury and his ongoing back injury as his reasons for resigning. However some six months after resigning on 13 June 1998 the plaintiff wrote to the second defendant, Exhibit 27, and stated:
"As you are aware I resigned from the employee (sic) of St John in January of this year. I resigned purely because of the head injury I received in September 1996."
Exhibit 27 is an important document because the plaintiff wrote it six months after he recovered from his post concussion syndrome in about December 1997. The content of Exhibit 27 cannot be blamed on the effects of his head injury as he blamed the contents of Exhibit 26. Exhibit 27 appears to be a clear and unequivocal admission by the plaintiff that he resigned purely because of his head injury.
The problems arising from a plaintiff in person giving evidence from the bar table during closing submissions were compounded when the plaintiff made closing submissions concerning Exhibit 27. In his evidence the plaintiff said Exhibit 27 was "probably" his but he could not remember it when it was shown to him under cross examination. In his closing submissions the plaintiff positively denied he had written Exhibit 27 and denied it was his letter. The copy of Exhibit 27 tendered by the defendant was a very bad copy and in these circumstances I asked that the original be provided. The original was provided to me after trial.
I have examined the original of Exhibit 27 and there is nothing about it to indicate it is not a genuine document of the plaintiff's signed by him and sent to the second defendant on 13 June 1998. The letter commences with the plaintiff saying he was writing about "termination calculation, safety issue, superannuation termination payment, letter on personal file and disablement re insurance policy". Those issues are consistent with the sorts of issues one would expect the plaintiff to be raising with his former employer six months after he resigned and the plaintiff accepted that was "probably" so in his evidence. The letter is signed with a signature that looks like the plaintiff's signature as it appears on other documents he tendered at trial, particularly his signature as it appears three times on the plaintiff's affidavit, Exhibit 22. Exhibit 27 bears a stamp on its face which seems to indicate it was received by the second defendant on 17 June 1998 and instructions given for a reply to be prepared. There is nothing about Exhibit 27 that indicates in any way that it is a false document. Based on the plaintiff's evidence when shown the document when he conceded it was probably his but he could not remember writing it, I am prepared to accept Exhibit 27 as the plaintiff's document. His denials in his closing submissions form no part of the evidence.
The effect of Exhibit 26, Exhibit 6 and Exhibit 27 is to cast serious doubt on the plaintiff's assertions at trial that he resigned solely because of his back problems. Given the contents of these documents and bearing in mind the series of unfortunate events suffered by the plaintiff in 1996 and 1997 including his severe head injury and his knee injuries, I am satisfied there were other reasons for his resignation. I do not accept his evidence about that.
Another matter that effected the plaintiff's credibility was his refusal to answer difficult questions under cross examination. On two occasions he purported to "take the Evidence Act" and answer no more questions. On the first occasion he was being cross examined about medical practitioners he had attended on for his back pain between 1993 and 1998. He was unable to name any and when asked how many there had been he decided to "take the Evidence Act" and refused to answer. Similarly, a little later when the plaintiff was being cross examined about Exhibit 26 he was asked why he wrote the letter of intention of resignation. He initially declined to answer and again "took the Evidence Act" although he did eventually answer the question.
There is a direct conflict between the plaintiff's evidence and that of Mr Cloughley about the circumstances of the plaintiff's resignation. The plaintiff's very emotional and almost hysterical denial that Mr Cloughley ever spoke to him about missing penthrane capsules was quite extraordinary. At the end of the day I accept Mr Cloughley's evidence. He was the second defendants superintendent in charge of metropolitan operations in 1997. I do not accept that he travelled down to Rockingham to talk the plaintiff out of resigning as the plaintiff asserted in his evidence. I accept Mr Cloughley's evidence that he had received some information about penthrane missing from the Cockburn Depot and he spoke to the plaintiff about this and indicated that he intended to do a full audit of both the plaintiff's patient care records and all the drugs in the drug books at the depot. I accept Mr Cloughley's evidence that the plaintiff became edgy about this and then inquired whether a person who left under a cloud would still get his whole superannuation pay out including the employers and the employees contributions. The plaintiff's reaction to this evidence under cross examination was so uncalled for and so far removed from the simple denial that would be expected that it reflected adversely on his credibility. Mr Cloughley, on the other hand, gave his evidence in a calm and careful manner. I accept his evidence about his visit with the plaintiff and I accept his evidence about the discussions surrounding the plaintiff's resignation from his employment.
Findings
1. I accept the plaintiff's evidence that the ambulance stopped very abruptly on 4 June 1993 and he suffered injuries to his neck and back. I accept his evidence supported as it is by the evidence of Dr Almonte and Mr Graham Forward that the plaintiff suffered soft tissue injuries involving his lower back and his neck. He recovered from his neck injury but his lower back pain persisted and worsened until he was hospitalised from 12-25 June 1993 for acute lower back, left buttock and calf pain with tenderness in the L4/5-L5/S1 region.
2. After release from hospital the plaintiff was treated by Dr Almonte during July and reviewed by Mr Forward in August. He was not able to return to work until 27 July 1993 and, then, only on restricted duties. He used a corset to protect his back while working.
3. I accept the plaintiff's evidence supported by Dr Almonte that his lower back pain persisted into 1994 but I am satisfied that he had recovered by at least November 1994 when he visited Dr Almonte and no report was made of any back pain.
4. I accept the plaintiff's evidence and that of Dr Potter, Mr Bannan and Mr Anastas that he suffered an exacerbation or aggravation of his 1993 lower back injury on 2 September 1996. I accept the opinion of Mr Wong and Mr Anastas that he fully recovered from that aggravation. His recovery is supported by the plaintiff's evidence that in 1997 he was able to commence full time study at the University of Notre Dame while continuing to work full time as an ambulance driver and paramedic. While I accept the evidence of the plaintiff and of Mr Vince that his employment did not necessarily require heavy lifting, nonetheless, it is a job which requires bending and occasional lifting to a much greater extent than does clerical work. The fact that the plaintiff was able to work as am ambulance attendant whilst studying full time during 1997 and, on the evidence I accept, did not consult any medical doctor about his lower back pain after the two visits to Dr Potter in September 1996, indicates to me that he had recovered from the 1993 soft tissue injury and from the aggravation in September 1996. Because the plaintiff was not a credible witness in so many areas of his testimony I do not accept his evidence that unnamed locums and emergency room doctors treated his lower back pain during that period. There is no support for his contentions in the evidence.
5. There is no doubt on the medical evidence that the plaintiff does suffer with a progressive degeneration of his lumbar spine. In my consideration of this I must take account of the evidentiary rule in Watts v Rake (1960) 108 CLR 158 at 160:
"If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause."
(Also see Purkess v Crittenden (1965) 114 CLR 164 at 170-171)
Owen J in Stewart v Stolzenhein, unreported; SCt of WA; Library No 940449; 24 August 1994 explained the principle in this way:
"Put simply, if there is an accident followed by injury or the aggravation of a condition, there is a presumption in favour of the plaintiff. If the defendant wishes to assert that the injury was the result of a pre-existing condition rather than of the accident the defendant has an evidentiary burden to raise the issue. If the defendant satisfies the evidentiary burden the normal rule prevails, namely, that the plaintiff must establish his or her case."
In this case the plaintiff clearly suffers degeneration of the lumbar spine either as a pre-existing or as a co-existing condition. The principles in Watts v Rake and in Purkess v Crittenden apply equally in the case of co-existing conditions (Western Australia v Watson (1990) WAR 248 at 311). In this case, as will be seen, the defendants have met their evidential burden by calling the evidence of Mr Anastas.
6. Degeneration in the plaintiff's lumbar spine particularly at L5/S1 was confirmed by CT scans and MRI imaging as the cause of his present symptoms by the specialist who examined him after he notified the third defendant of his injury in August 1998. In Mr Bannan's opinion the degeneration of L4 and L5/S1 predated the 1993 accident but he thought that the accident "probably" made the disc degeneration symptomatic. Mr Wong considered the plaintiff's disc degeneration to be more aged related than related to the 1993 accident. In Dr Home's opinion the CT scans and MRI imaging reflect progressive disc degeneration at L4/5 and L5/S1 but he considered the extent to which the progressive disc degeneration relates to the 1993 accident to be uncertain. Dr Home considered Dr Almonte to be the doctor best placed to judge whether the plaintiff had recovered from the 1993 accident or still continued to feel the effects of it. But Dr Almonte in his report noted the time that elapsed between his consultations in July 1993 and March 1994 and then the more than four years that passed before his further consultation in August 1998; Dr Almonte could not assist on this issue. Mr Anastas' evidence was very important. He was the only medical expert called to give evidence. Mr Anastas found there had been a natural progression of degenerative changes in the plaintiff's lumbar spine from at least June 1993. According to Mr Anastas this is a progressive thing that occurs in all people. Mr Anastas apportioned the plaintiff's present disability as 50% due to the June 1993 accident and 50% due to the natural progression of degenerative changes. But that opinion was based on what the plaintiff told him. Mr Anastas said that without the history the plaintiff gave him of continuing back pain from 1993 he would have no problems saying the plaintiff's present symptoms were 100% due to progressive degenerative changes in his back. In my findings I have explained that I do not accept the plaintiff's evidence about having continual back pain. It is well settled that expert opinions are of little or no value unless the facts on which they are based is true (Pollock v Wellington (1996) 15 WAR 1). In this case I do not rely on Mr Anastas' opinion of a 50/50 apportionment because the facts on which it is based are not true. Based on my findings of fact I accept his alternative opinion that all of the plaintiff's current symptoms are 100% due to progressive degenerative changes in the plaintiff's back.
7. It was Mr Anastas' opinion that the 4 June 1993 accident would not have predisposed his lumbar spine to the acceleration or development of degenerative changes. That was because it was only a "thump" with no evidence of joint involvement or fracture. There is a conflict between Mr Bannan's opinion and that of Mr Anastas. I accept Mr Anastas' opinion because it is a firm opinion supported by reasons. Therefore, I find that the progressive degenerative changes in the plaintiff's spine were not made symptomatic by the 1993 accident.
8. I acknowledge that the unrepresented plaintiff was unable to grasp the difference between those parts of the medical reports wherein the doctor recounts the history as told to him by the patient and the parts of the reports which contain the doctor's opinion based either on examination or on non-subjective material such as MRI imaging. The plaintiff seemed to rely on the history he gave to the doctors which they included in their reports as evidence of the truth of its contents. That approach made the plaintiff quite unable to assess the strength of his case. The key fact on which his case depends is his evidence of continuing back pain since June 1993 yet that is the fact which the doctor's reports do not support and, in the case of Dr Almonte, positively exclude.
9. I have already given my reasons for accepting the evidence of Mr Cloughley in preference to that of the plaintiff concerning the meeting in 1997 and the subsequent events surrounding the plaintiff's resignation from his employment. I am satisfied that the primary reason the plaintiff resigned was the head injury he suffered in September 1996 compounded by the injury to his knees in 1997. Based on Mr Cloughley's evidence I am also satisfied that the plaintiff was concerned about the pending investigation of the missing penthrane. The plaintiff undoubtedly had some back pain in 1997 arising from the progressive degenerative changes in his lumbar spine but based on my earlier findings those changes are not causally related to the 1993 accident and the defendants are not liable for that. For these reasons I am satisfied that the plaintiff did not resign his employment because of problems with his lower back arising from the 1993 accident.
10. In summary based on all the medical evidence I am satisfied that the plaintiff suffered a soft tissue injury to his lower back in June 1993 but based on Dr Almonte's report he recovered from that injury at least by November 1994. He suffered an aggravation to that 1993 injury in September 1996 but has fully recovered from that aggravation. I am satisfied his present condition is the result of naturally occurring progressive degeneration of his lumbar spine which the 1993 accident neither aggravated nor made symptomatic. I am satisfied that his resignation from his employment was not caused by the injury he suffered as a result of the 1993 accident. This is the basis on which damages will be assessed.
Assessment of damages
Loss of earning capacity:
"In Australia, a plaintiff is compensated for loss of earning capacity, not loss of earnings … 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 (Graham v Baker (1961) 106 CLR 340 at 347) … Earning capacity is an intangible asset. Its value depends on what it is capable of producing. Earnings are evidence of the value of earning capacity but they are not synonymous with its value.”
Medlin v State Government Insurance Commission(1994-1995) 182 CLR 1 per McHugh J at 16
In this case there is evidence of two periods when the plaintiff was unfit for his duties as an ambulance driver as a result of the defendants' negligence. The first was the period of seven weeks from 4 June 1993 until 27 July 1993. The second period was a two week period from 2 September 1996 when the plaintiff suffered an aggravation of his lower back injury. The plaintiff suffered his severe fracture of the skull on 17 September 1996 and it was that injury, unrelated to the negligence of the defendants, that kept him off work until December 1996.
As I do not accept the plaintiff's evidence that he resigned because of his lower back pain I do not make any award for the period from January 1998 when the plaintiff resigned. I am satisfied the 1993 lower back injury and aggravation in 1996 was not causally related to the plaintiff's resignation. I am satisfied any lower back pain suffered by the plaintiff in 1997 was caused by naturally occurring degenerative changes at the L4-L5/S1 and not the 1993 accident or the 1996 aggravation.
Counsel for the defendants submitted that it is not necessary for me to make an actual award for past economic loss. The plaintiff always received worker's compensation payments. Counsel undertook to arrange for adjustments as between the insurers involved. There would not be any award for interest because the plaintiff was never out of pocket. Based on my factual findings there is no future loss of earning capacity.
Pain suffering and loss of amenity
I accept that the 1993 accident caused a very serious soft tissue injury to the plaintiff's lower back. The plaintiff suffered a considerable amount of pain and required to be hospitalised for a two week period. Even when he returned to work at the end of July he suffered ongoing pain and only managed by using his corset. I accept that the plaintiff suffered ongoing pain until at least 31 March 1994 but had recovered and the pain had settled such that he made no mention of any back pain during visits to Dr Almonte in November 1994, May 1995 and July 1995.
The plaintiff is also entitled to compensation for the aggravation he suffered in September 1996 but on all of the evidence that was short lived and he fully recovered.
I accept that during 1993 and 1994 and for a short period in 1996 as a result of the defendants' negligence the plaintiff was unable to engage in the sporting activities he enjoys including sailing, bush walking, golf, abseiling, scuba diving and playing table tennis. His quality and enjoyment of life was reduced by his lower back injury. Because of my findings the plaintiff's loss of enjoyment of his children, who were not born until after 1997, and his limitations in his ability to lift his children and hug them and play with them are not compensable. Those limitations arise from progressive degenerative changes in his back and were not caused by the plaintiff's negligence.
Because the accident took place prior to the amendments to the Motor Vehicle (Third Party) Insurance Act 1943 I need not take any account of the threshold amounts in s 3C of that legislation.
Taking account of all relevant matters I award damages for pain, suffering and loss of amenity of $14,000.
Total award
TOTAL AWARD $14,000.00
0
4
1