Muller v Bradford - [2007] WADC 119

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MULLER -v- BRADFORD [2007] WADC 119

CORAM: COMMISSIONER POWER

HEARD: 30-31 OCTOBER & 1-2 NOVEMBER 2006

DELIVERED : 24 JULY 2007

FILE NO/S: CIV 2058 of 2001

BETWEEN: DARREN PAUL MULLER
Plaintiff
AND
KEITH JOHN BRADFORD
Defendant

Catchwords:

Professional negligence - Solicitor's failure to act before expiry of limitation periods - Potential claims against employer and manufacturer - Value of lost chance - Award of nominal damages - Turns on own facts

Legislation:

Trade Practices Act 1974
Workers Compensation & Injury Management Act 1981
Workers Compensation & Rehabilitation Amendment Act 1999

Result:

Judgment for the plaintiff in the amount of $10

Representation:

Counsel:

Plaintiff: In Person
Defendant: Mr G P Bourhill

Solicitors:

Plaintiff: Not applicable
Defendant: Lavan Legal

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

Bowen v Blair [1933] VLR 398
Carmody & Ors v Priestley & Morris Perth Pty Ltd & Anor [2005] WASC 120
Goldburg v Shell Oil Co of Australia Ltd (1990) 95 ALR 711
Hammond Worthington v Domitila Da Silva [2006] WASCA 180
Instant Nominees Pty Ltd v Redman [1987] WAR 218
Kitchen v Royal Air Forces Association [1958] 1 WLR 563
Kuligowski v Metrobus [2002] WASCA 170; (2002) 26 WAR 137
Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd (1938) 61 CLR 286
Nikolaou v Papasavas, Phillips & Co (1989) 166 CLR 394

COMMISSIONER POWER:

Introduction

The plaintiff was unrepresented and conducted the trial in person.
The pleadings comprise a substituted statement of claim drawn by the plaintiff and filed on 13 March 2006 and a substituted defence filed on 26 April 2006.
The plaintiff alleges that he was injured while working as a pest controller for Rentokil Pty Ltd ("Rentokil") on 24 November 1994. The defendant does not admit that the plaintiff was injured while working as a pest controller, but does admit that the plaintiff received workers' compensation payments pursuant to the Workers Compensation & Injury Management Act 1981, as it is now known, ("the Act") until 7 July 1997 as a result of a work related incident on 24 November 1994.
It is common ground that on 7 July 1997 the Conciliation and Review Directorate ("the Directorate") ordered the cessation of weekly payments to the plaintiff under the Act ("the order") on the basis that the plaintiff had recovered from the cervical strain injury allegedly suffered in the work related incident ("the injury") so as to be fit to return to his pre‑accident occupation ("the finding"). The plaintiff disputes that he has recovered from the injury, but does not dispute that the order was made.
The defendant also admits that the plaintiff consulted him on 4 January 2000 about his potential claims for damages for the injury against Rentokil and the manufacturer of an allegedly defective backpack ("the manufacturer"), which the plaintiff was using at the time of the injury and which he alleges was the cause of the injury.
The defendant admits that he did not commence proceedings against the manufacturer within the relevant limitation period, but denies that any such failure has caused the plaintiff any loss or damage.
Although it is not clear from the pleadings, it was clear from the way in which the trial was conducted that the plaintiff's claim against the defendant was grounded on an alleged breach of the contractual obligation and duty of care owed by the defendant to the plaintiff to exercise the care and skill required of an ordinarily skilled solicitor exercising and professing to have a special skill in the area of personal injuries litigation, subject always to the circumstances of the case, including the quality of the instructions given and the urgency of the situation (Carmody & Ors v Priestley & Morris Perth Pty Ltd & Anor [2005] WASC 120 at [98], [102] – [103] (and the authorities referred to therein)).
Although the defendant acknowledged that some documentation was delivered to him by the plaintiff prior to the close of his practice for the Christmas break at the end of 1999, there was no evidence of the precise date on which that delivery occurred.
The defendant's position is that he was not professionally retained by the plaintiff until 4 January 2000, when he met with the plaintiff and discussed his potential common law claims for damages in respect of the injury.
The issues for determination at trial were as follows:
(a)whether the plaintiff was injured while at work on 24 November 1994 and if so, the nature and extent of any such injury and the nature and extent of any resultant loss and damage suffered by the plaintiff;
(b)if the plaintiff was injured as alleged, whether the injury was caused by any breach of contract or duty of care owed to the plaintiff by Rentokil;
(c)if the plaintiff was injured as alleged, whether the injury was caused by any breach of any duty owed to him by the manufacturer;
(d)whether the plaintiff could and would have commenced proceedings against Rentokil or the manufacturer at any time between 4 January 2000 and 24 November 2000, after which the plaintiff was time‑barred from doing so; and
(e)whether the defendant breached any obligation or duty to the plaintiff and if so, the nature and extent of any such breach and whether or not it caused, and if so what, loss or damage to the plaintiff.
The plaintiff tendered four documents in evidence (exhibits P1 to P4) and the defendant tendered one document (exhibit D5). Exhibit P4 comprised a bundle of documents which were tendered without qualification. Documents 1 to 13 in exhibit P4 were included at the behest of the plaintiff. The balance was included at the behest of the defendant.
The plaintiff also tendered three schedules, which contained his assessment of his claim for damages and which were provided to me as aides memoire. They were marked as schedules A, B and C.
I have carefully considered all of the evidence, including the documentary evidence comprising the aforementioned exhibits in arriving at my decision. The oral evidence comprised the evidence of the plaintiff and the defendant only. I have also carefully considered the submissions of the parties, including the written submissions and schedules which were provided to me.

The plaintiff's evidence

The plaintiff relevantly gave evidence to the following effect.
The plaintiff was born and grew up in Victoria. He left school before his final year and worked in a variety of jobs in Victoria, including labouring and in supermarkets, eventually working his way up to the position of a night fill manager in a supermarket. He moved from Victoria to Western Australia in about 1993, with a view to starting his own business. He undertook some courses in Victoria and in Western Australia to assist him in starting his own business. Mr Muller described himself as a hard worker, who would work long hours and take little time off work. He applied for and obtained work with Rentokil to give himself an introduction into the pest control industry. His intentions were to start his own business in that industry and then branch out into computer games or video stores.
On 24 November 1994, the plaintiff was employed by Rentokil as a pest controller. He was sent to spray some insecticide on the walls of a shed at the Fremantle Wharves. He was sent to do the task single‑handedly and was given a pump driven backpack sprayer ("the backpack") to apply the insecticide to the walls. The backpack was described as being similar to the Stihl SR400 mistblower model ("the Stihl backpack") described in exhibit D5. However, it is not clear that it was a Stihl backpack. Stihl Pty Ltd ("Stihl"), the manufacturer and/or supplier of the Stihl backpack, made no such concession.
The plaintiff was required to fill the storage tank on the backpack with insecticide and then apply the insecticide using a spray arm which was attached to the right hand side of the backpack. The insecticide was pumped from the tank on the backpack through the spray arm and out of a nozzle at the end of the spray arm on to the walls to be sprayed. The backpack was designed to be worn by the plaintiff. It was secured to his torso by two over the shoulder straps. There was no belt securing the backpack to his waist. The Stihl backpack had a lap belt, allowing it to be secured around the wearer's waist, as an optional extra. It is not clear if the backpack the plaintiff was using would have had a lap or waist belt as a standard fitting or as an optional extra.
The plaintiff described the backpack as being in a poorly maintained condition. The spray arm, which according to him was meant to swivel up and down, could not be moved upwards. Consequently, the plaintiff had to bend backwards from his waist so as to spray insecticide up the walls of the shed towards the ceiling. As he bent backwards to do so, the backpack was suspended and dangling off his shoulders, because of the absence of a lap or waist belt.
The plaintiff had to refill the tank on the backpack about five or six times. It contained about 30 litres. The plaintiff continued working in this way, spraying the walls of the shed, for about two or three hours.
Later that day and from then onwards, the plaintiff maintains that he began to notice pain radiating across his upper back and up his neck, which worsened with the passage of time.
The plaintiff continued working after the injury. Although there is some indication on the workers' compensation employer's report form dated 6 April 1995 that the plaintiff stopped work on that day, he maintains that he continued to work as a pest controller, despite worsening and disabling pain in the area of his upper back and neck, until about 12 months after the date of his injury, when he ceased work permanently.
The plaintiff's evidence was that he consulted Dr Poli about his injury about a week after it occurred. The first medical certificate issued by Dr Poli suggests that he was not consulted by the plaintiff until 6 April 1995.
The plaintiff did not appear to have any records of his attendances on medical practitioners or of the treatment prescribed for and administered to him.
The plaintiff's evidence was that the pain and stiffness in his upper back and neck gradually worsened to the point where the pain was paralysing, as he described it.
It was common ground that since 6 April 1995 the plaintiff has been seen by a number of medical practitioners, including Drs Anderson (rehabilitation medicine physician), Finch (anaesthetist and pain and relief specialist), Leonard (general practitioner), Mustac (consultant psychiatrist), Poli (general practitioner), Rosenthal (rehabilitation medicine physician), Waite (general practitioner) and Messrs Rosenfeld (neurosurgeon), Slinger (spinal surgeon), Suter (clinical psychologist) and Vaughan (neurologist).
The medical and associated reports can be found in exhibit P4 between pages 22 ‑ 26 and 29 ‑ 93.
The plaintiff maintains that he was treated with physiotherapy and painkilling medication, including Panadeine Forte and Panamax and more recently morphine, and Valium. The painkilling medication taken by the plaintiff increased in strength and dosage over time to the point where he is now taking, among other things, 100 milligrams of morphine per day.
It appears from the plaintiff's evidence, and the various medical reports in exhibit P4, that the plaintiff returned to live in Victoria sometime towards the end of 1996 or the beginning of 1997. He returned to Western Australia again in about late 1998. The plaintiff was put on a disability pension on 2 April 1998 and appears to remain a disability pensioner. There was no evidence about the circumstances in which he was medically assessed as entitled to receive a disability pension.
The plaintiff's evidence was that he met with the defendant on 4 January 2000 and signed an election to retain his right to seek damages (exhibit P2) at that meeting. He also saw Dr Hewitt on the same day, when Dr Hewitt issued a report of the same date to the effect that the plaintiff had sustained a permanent whole body disability of at least 16 per cent as a result of the injury (exhibit P2).
The plaintiff recalled the defendant advising him that he (the defendant) was concerned about his prospects of suing Rentokil for common law damages, because of the finding on 7 July 1997. He accepted that the words issue estoppel were probably used. He recalled being told by the defendant that he did not think it would be a good idea to try and pursue that claim against Rentokil. He also recalled being told by the defendant that the defendant would investigate the possibility of pursuing a claim against the manufacturer, because he did not think the plaintiff could pursue a claim against Rentokil. The plaintiff confirmed that at no stage did the defendant tell him that he would be successful in a claim against the manufacturer. According to the plaintiff, no one has given him advice to that effect.
The plaintiff also confirmed receipt of a letter from the defendant dated 18 December 2000, in which he was advised that he could no longer pursue a claim against the manufacturer for negligence, because the limitation period had expired. The letter appears at pages 27 to 28 of exhibit P4 and relevantly stated:
"We are writing to you from an ethical point of view in relation to the ongoing conduct of your matter and our difficulty in continuing to act on your behalf.
Firstly, in good faith towards you, we did advise you that you would not stand a chance of succeeding in a Form 22 proceeding before the Directorate simply because the Directorate had already made a finding that you had recovered from your disability and that there was no disability present. It is not possible against the background of such a finding to continue a case. It was for this reason that we investigated a manufacturer's liability claim on your behalf. In that regard we then wrote to you explaining the situation and commenced investigations which included the purchase of the backpack for the sum of $1,200.00 as well as the obtaining of advice from an engineer who condemned the equipment by saying it was dangerous to use the same.
From this we concluded that you had a good claim against the manufacturer.
There are 2 time periods which need to be observed against the manufacturer in your case, they being firstly to institute an action within 6 years from the date the disability was caused, ie, before 24 November 2000, or to institute an action within 3 years of discovering a defect, but in such case within 10 years from the distribution of the equipment. We ascertained that the distribution was made in 1993 and thus you need to institute an action before the year 2003.
Although the writer was of the view that a Writ had been issued and there was a note on the file to that effect, it has been discovered that the Writ was not issued before 24 November 2000 and thus we are obliged to advise you that it would not be proper for us to continue acting for you. In the event that you do not succeed in establishing a case by issuing a Writ within the next 2 years or so, it may be that you have other recourse available.
It is for this reason that we have taken advice from Law Mutual who have informed us that we need to encourage you to seek the services of another solicitor."
The plaintiff steadfastly maintained that he went to the defendant's premises to collect his file and was, in effect, advised by the defendant that he should "…sue him, himself/his insurance company, Law Mutual, for professional indemnity for just the same reasons as if I was suing the employer or the manufacturer".
The plaintiff described his future business plans and loss and damage in considerable detail. That evidence was further explained in schedules A, B and C. While I do not recite the detail, I have carefully considered and paid appropriate regard to all of the plaintiff's detailed and thorough evidence and submissions on his past economic losses, loss of future earning capacity and other loss and damage in arriving at my decision. However, it is noteworthy that the plaintiff did not ever consult an accountant about his future business plans. Nor did he consult a bank manager to find out how much he might be able to borrow. Nor did he obtain information from anyone about establishment costs.

The defendant's evidence

The defendant relevantly gave evidence to the following effect.
The defendant was admitted to practice on 4 September 1990. Between 1999 and 2000 he was practising on his own account in Applecross. The defendant's principal area of practice was representing plaintiffs in personal injury claims.
The plaintiff was referred to the defendant by a colleague, Mr Ian Tait. The plaintiff came and saw the defendant before his practice closed for Christmas. He brought a pile of papers with him. The defendant undertook to read those papers and arrange an appointment with the plaintiff immediately after re-opening his office in the New Year.
The defendant read the plaintiff's papers and met with the plaintiff on 4 January 2000. At that meeting, the defendant was told by the plaintiff how the accident had occurred and that he had not been in receipt of workers' compensation payments for some time. He was provided with a copy of the Directorate's reasons for decision (which are set out at pages 9 to 21 of exhibit P4). He advised the plaintiff at that time that there was little prospect of any claim against his former employer, Rentokil, because he considered that there was an issue estoppel. The defendant also advised the plaintiff at that time that he could lodge an election to retain right to seek damages form, but that it may not be effective. He explained the reasons why it may not be effective to the plaintiff. He also indicated to the plaintiff that he may have a right to pursue a claim against the manufacturer, which at the time was the only other potential claim the defendant could identify.
At the time, it was the defendant's practice to be on the lookout, as he described it, for other defendants and to pursue them for damages if it was, in effect, worth while to do so.
It was also the defendant's practice at that time, in such a case, to obtain an opinion from a Mr Andrew Van der Meer, an engineer, to assess whether or not the claim against a manufacturer would be worth pursuing. To that end, the defendant purchased the Stihl backpack, met with Mr Van der Meer, recorded the latter's preliminary observations on the Stihl backpack and produced what was described as a draft substance of expert evidence (exhibit P3). The draft was not reviewed or settled by Mr Van der Meer.
At that time, the defendant considered that a claim against the manufacturer was worth exploring and that a writ should be issued, prior to the expiry of the relevant limitation period, to protect the plaintiff's interests. He received instructions from the plaintiff to issue a writ.
Notwithstanding his intention to issue a writ, an explicit instruction to one of the solicitors employed by him to do so and receipt of an assurance from that solicitor that it had been done, no writ was issued (as it should have been).
When the defendant became aware that proceedings had not been issued prior to the expiry of the limitation period for bringing a common law claim in negligence against the manufacturer, the defendant reported the omission to his indemnity insurer, received advice from it and then prepared a letter to be sent to the plaintiff. The letter is dated 18 December 2000 and appears on pages 27 and 28 of exhibit P4. The letter was checked by the defendant's professional indemnity insurer before being sent.
The defendant could not recall a meeting with Mr Muller at any time after sending that letter and disputed the plaintiff's evidence to the effect that he, the defendant, told the plaintiff to sue him. He denied that he would say such a thing.

The defendant also noted that the period leading up to about October 2000 was a difficult period in which to obtain instructions from Mr Muller. At the time, the defendant noted the plaintiff appeared lucid and friendly during conversations, but displayed what he described as a significant element of paranoia in correspondence which was regularly sent by the plaintiff to the defendant. The defendant was unsure about whether the plaintiff was in a fit state of mind to be giving him instructions. He was also concerned to know if the plaintiff's state of mind was something caused by the injury. The plaintiff had reported to him that he had been seeing a psychiatrist at Royal Perth Hospital, but that no diagnosis had been made. The defendant discussed his concerns with the plaintiff at about the same time that he made the decision to advise the plaintiff to instruct him to issue a writ against the manufacturer. At that time, the defendant had not fully proofed the plaintiff and was not in a position to know the strength of any claim against the manufacturer. Nonetheless, he advised the plaintiff that he had a good claim. He explained that what he meant by this expression was that the claim should proceed for the time being and if at some later point in time circumstances indicated that the claim was not worthwhile, the plaintiff would be advised to that effect.
The defendant did not know at that time that the Stihl backpack, assuming the backpack used by the plaintiff was one manufactured by Stihl, was not intended to be used in the way in which the plaintiff was using it on 24 November 1994. Nonetheless, the defendant did not believe that that knowledge would have changed his mind about whether or not to commence proceedings. He believes that he would have still issued the writ and then taken his time to advise the plaintiff on his ultimate prospects of success.
The practice adopted by the defendant, where he was unsure about whether to issue proceedings and where the expiry of the limitation period was fast approaching, was to issue the writ and continue investigating the claim. A statement of claim may have been drafted and served on the defendant to elicit a response. An early offer in settlement might have been forthcoming. If it was not, a decision could then be made about whether to further progress the action to a pre-trial conference or to trial. The defendant's experience at that time was that claims in negligence against manufacturers were defended to the hilt, as he put it, unless there was some clear indication of a weakness in the manufacturer's case.
Based on what the defendant knew in 2000, he would have been reluctant to advise the plaintiff to proceed to trial. At that time, the defendant understood that the plaintiff was seeking damages running into hundreds of millions of dollars and that, in itself, would have made any pre-trial settlement unlikely.

The medical evidence

The medical evidence was entirely documentary and was relevantly to the following effect.
Dr Carmelo Poli, issued a first medical certificate in respect of the plaintiff's alleged injury. The certificate is dated 6 April 1995 and describes that date as the date of the plaintiff's first attendance. It certified the plaintiff unfit for work for three days and appears to describe the diagnosis as a soft tissue injury in the plaintiff's spine.
On 29 July 1995, Dr Poli issued a report to the workers' compensation insurer for Rentokil, in which he confirmed that his first examination of the plaintiff was on 6 April 1995 for injuries sustained during the period November and December 1994. Dr Poli noted a decreased range of movement in the plaintiff's cervical and thoracic spine and tenderness from the C1 vertebra down to the T12 vertebra. He assessed him as having sustained a soft tissue injury to his cervico‑thoracic musculature and soft tissue areas. He prescribed Naprosyn, Panadeine Forte and physiotherapy. He noted that x-rays of the plaintiff's cervical and thoracic spine were basically normal. He attributed the injury to the plaintiff's description of how he used the backpack, which he recorded as occurring in December 1994. He also noted the plaintiff used it after that date for various periods of time. Dr Poli considered the plaintiff would make reasonably good progress and improve as long as he did not use the backpack. Alternatively, if he was to use the backpack, it should be modified so that it was strapped to his back.
Dr Poli referred the plaintiff to Mr Barry Slinger, spinal surgeon. In his report dated 21 December 1995, Mr Slinger noted the plaintiff's history, which was to the effect that his symptoms improved with rest and exercise and were aggravated by activities at work. When the plaintiff saw Mr Slinger, he was complaining of no symptoms in either upper limb, apart from some minor discomfort on the proximal aspect of the right arm on two occasions. The plaintiff told Mr Slinger that the pain from the original injury had resolved and his present symptoms related more distally in the neck. He noted the plaintiff had taken some time off in the past week, but otherwise had very little time away from work. Mr Slinger's examination revealed that the plaintiff had a solid muscular build and was a little overweight. There was no tenderness in his cervical spine and movements were full, with discomfort noted at the extremes of rotation and lateral flexion. Movements of both shoulders were full and painless and there was no neurological deficit in either upper limb.
In a subsequent report dated 19 February 1996 to Dr Waite, who was then the plaintiff's treating general practitioner, the plaintiff was recorded as having advised Mr Slinger that his symptoms in his proximal spine had resolved, but that he still had symptoms at the base of his neck and upper back. He also advised Mr Slinger that certain exercises with swimming aggravated his symptoms, but that certain analgesic medication, which the plaintiff would not specify, provided excellent relief from his symptoms. He told Mr Slinger that he felt much healthier and fitter than previously. Mr Slinger noted narrowing and lipping at the C5/C6 vertebrae. He believed that to be the source of the plaintiff's symptoms. He did not consider surgery appropriate at that time. He referred him to Dr Philip Finch for his advice on general management and on the efficacy of facet block procedures.
In his report to Rentokil's workers' compensation insurer dated 21 March 1996, Dr Rosenthal noted that the plaintiff's treatment until that time had been physiotherapy and until recently anti-inflammatories and Panadeine Forte. At that time he noted the plaintiff was taking Feldene and six to eight Digesic tablets per day. He confirmed his clinical impression that the plaintiff was suffering from a posterior segment ligamentous thoracic strain injury. He noted there did not appear to be any major degree of functional impairment and his requirement for analgesics was surprising. He also noted an inconsistency in the plaintiff's failure to improve despite three months of inactivity. He considered any continued absence from the workplace would only serve to prejudice his prognosis. He also considered the history a little unusual, because the plaintiff was able to work for 12 months following the date of injury. He had no recommendations for treatment other than a muscle hardening programme. He considered him fit to return to work as a pest control operator, subject to him not having to wear a backpack. He considered his recovery would be more assisted by activity than rest.
Dr Rosenthal saw the plaintiff again on 10 July 1996, noting he had not returned to work since his previous assessment on 21 March 1996. He noted the plaintiff was taking up to 22 Digesic tablets per day and up to 10 five milligram tablets of Valium per day. He recorded the plaintiff's criticism of every doctor who had ever seen him as well as his criticism of his legal adviser. He told Dr Rosenthal he had stopped all exercise, because it only aggravated his symptoms. He also complained to Dr Rosenthal of lower back pain, in addition to constant bilateral periscapular pain. He told Dr Rosenthal he had taken five Valium and four Digesic tablets to cope with Dr Rosenthal's examination. He had previously indicated to Dr Rosenthal in the same consultation that it took him three days to recover from his previous examination by him. Dr Rosenthal noted that the severity and duration of the plaintiff's subjective complaints were inconsistent with the type of injury he was likely to have suffered.
It was patently clear to Dr Rosenthal that the plaintiff had an addiction problem, which he was attempting to justify with a history of occupationally induced mid‑back pain. He considered his psychological demeanour to be clearly affected by medication. Dr Rosenthal's historical diagnosis was unchanged. He considered the plaintiff's current problems to be psychological. He did not believe the physical injuries sustained by the plaintiff at work on 24 November 1994 could reasonably account for the severity of his symptoms. He considered the plaintiff's continued perception of pain was intimately linked to his addiction and a pain reward cycle. He considered the plaintiff currently unsuitable for any form of gainful employment, because of his drug addiction and associated behavioural problems. He regarded those as self-inflicted and not work related. He considered a minor injury in the workplace had provided the plaintiff with a convenient opportunity to abrogate blame and responsibility in relation to irrelevant psycho-social issues. Dr Rosenthal suspected habituation problems well and truly pre-dating the plaintiff's injury at work and noted a long pre-accident history of current right periscapular pain commencing 14 years previous.
The only treatment Dr Rosenthal considered the plaintiff required was psychiatric referral and a drug rehabilitation programme. He considered there was no clinical, pathological or radiological basis to apply any quotient to permanent physical disability. He considered he would not return to gainful employment until his drug addiction problem was addressed.
Dr Ian Waite wrote a report to Rentokil's workers' compensation insurer dated 21 August 1996. He was at the time the plaintiff's general practitioner. In that report, he noted there were very few clinical findings on examination to explain the plaintiff's degree of pain. He noted that in recent weeks the plaintiff appeared significantly agitated and he suspected it might relate to his long history of marijuana use coupled with more recent excessive use of Valium and Digesic. The plaintiff apparently told Dr Waite he required that level of medication to keep his pain under control. However, Dr Waite found it odd that he should experience such severe pain this long after the type of injury he described as having occurred in November 1994. Dr Waite's diagnosis of a soft tissue thoracic spine injury had not changed. However, as time went on, Dr Waite became increasingly aware of the plaintiff's underlying psychological disturbance and had requested an urgent psychiatric assessment, which was scheduled to take place on 29 August 1996. He only began seeing the plaintiff 15 months after his alleged injury.
Based on medical grounds alone, there were, in Dr Waite's opinion, virtually no clinical findings which would preclude the plaintiff from returning to work, initially on alternative lighter duties part-time and building up to full-time ordinary duties. He also considered that until the plaintiff's psychological issues were addressed and his drug dependency sorted out, the plaintiff would have no work capacity. Given the lack of clinical findings to explain the degree of pain allegedly experienced, Dr Waite suspected much of the "incapacity" resulted from overlying psychological problems. He was in no doubt that the plaintiff's drug abuse, from long term use of marijuana and recent excessive use of prescription medication, was contributing to his "incapacity" and continued perception of pain.
The only medical treatment which Dr Waite recommended was a psychiatric assessment and a drug withdrawal programme. He did not believe the plaintiff had suffered any permanent loss of function or disability from his back injury and did not consider there would be any benefit in workplace rehabilitation until the plaintiff's psychiatric and drug dependence problems had been addressed.
In his report dated 30 August 1996 to Dr Waite, Dr Finch noted a reduced range of dorsal rotation and tenderness over the D5/D6 segments. In addition, he noted a mild reduction in range in rotation to the right in the cervical spine with little tenderness and no evidence of neurological abnormality. He noted no evidence of brachial plexus irritation. He described the plaintiff's injury as a mid-dorsal segmental injury involving a structure, as yet to be determined. He noted a significant history of medication abuse and strongly suggested that he see Mr Brian Suter, clinical psychologist, to sort out his medication abuse.
In his report to Dr Waite dated 12 September 1996, Dr Finch suggested cervical discography at the C5/C6 and C6/C7 levels to determine if the protrusions noted at those levels were responsible for causing the pain about which the plaintiff was complaining in his upper dorsal area. He noted there were arguments for and against the procedure, but suggested that in the first instance, the plaintiff wean himself off diazepam and get his drug dependency under better control.
The plaintiff was seen by Mr Brian Suter, clinical psychologist, on 10 and 16 September 1996. He prepared a report dated 18 September 1996. His initial impressions were that the plaintiff's use of Valium were to self medicate his mood and level of agitation and from his self reports, also served to modify and control his physical symptoms. He noted that the long term use of benzodiazepines was problematic, particularly due to the risk of physical tolerance and the need for ever increasing dosages for the same results. In addition to the extreme mood calming effect, he noted that they also had the risk of creating a psychological dependence, particularly in individuals who used them predominantly to self medicate "their psychological distress". He also noted that the plaintiff had a personality which was going to complicate treatment. Mr Suter did not suggest there was a psychogenic basis to the plaintiff's pain, but rather that his personality, situational pressures and psychological response significantly complicated treatment, particularly as patient compliance and co-operation would be important factors in treating his reported physical difficulties, medication/substance misuse and psychological distress.
The plaintiff was reviewed by Dr Zelko Mustac, consultant psychiatrist, on 21 September 1996. By letter dated 22 September 1996 to Rentokil's workers' compensation insurer, Dr Mustac noted that the plaintiff was not suffering from any psychiatric illness other than substance use disorder. He considered the plaintiff was, from a psychiatric perspective, fit to work in a normal manner. He suspected the plaintiff was understating the extent of his use of mind altering medications. He also noted the plaintiff appeared to be disinterested in normal day to day endeavours. According to Dr Mustac, the plaintiff's priorities clearly lay in the direction of drug usage, rather than work or finding permanent accommodation.
Following Mr Suter's review of the plaintiff, Dr Finch noted in his report to Dr Waite dated 23 September 1996 that he was not keen to try any invasive treatment until the plaintiff had rationalised his drug intake. The rationalisation would include a complete withdrawal from diazepam, which could be achieved with the reduction of two per week, until by 14 October 1996 he had ceased Valium. If he could achieve that target, Dr Finch thought it may be worth considering other means of pain control, after a neurological review.
In a subsequent report to Rentokil's workers' compensation insurer dated 5 November 1996, Dr Finch noted the plaintiff's problem with substance abuse was in itself causing a considerable degree of incapacity for work. He could not see the plaintiff returning to productive work given his substance abuse. He noted the origins of the problem probably predated his injuries. In that respect, he would defer to his psychiatric colleagues.
In a report dated 13 February 1997 to the plaintiff's then solicitors, Messrs Dwyer Durack, Dr Finch noted the probable cause of the plaintiff's pain was a strain to the facet joints in the upper dorsal spine, not causing any neurological compromise, but causing persisting pain in that region. He did not consider it to be a severe injury and considered it was unlikely to totally prevent the plaintiff from working. He considered it might make the use of a heavy backpack painful and difficult. He did not know whether the pain would gradually improve and made no further suggestions with respect to referrals or treatment.
The plaintiff was reviewed by Mr Rosenfeld, neurosurgeon, following a referral by his then general practitioner in Victoria, Dr D A Jinks. Mr Rosenfeld first assessed the plaintiff on 7 November 1996. He issued a report to Rentokil's workers' compensation insurer dated 12 March 1997. In that report he described the plaintiff as suffering from a difficult chronic pain disorder centred on his upper and mid‑thoracic spine, particularly between the shoulder blades. He noted the plaintiff had taken many kinds of medications in the past, but that he was currently on Digesic and Prothiaden. He noted a reluctance by the plaintiff at that time to take Valium or opiates.
On examination, he noted the plaintiff held his neck in a stiff posture, but observed no wasting in his limbs or any abnormal neurological signs. He considered the plaintiff's tone was normal, his power was intact and his deep tendon reflexes were normal and symmetrical. The plaintiff's plantar responses were downgoing. The sensation of the plaintiff's limbs was normal, as was his gait. He also noted that although the plaintiff's spine was straight, he was very tender in the upper to mid‑thoracic spine generally. This aspect clearly had an hysterical element. Mr Rosenfeld examined the plaintiff's magnetic resonance image scans and noted degenerative changes in the neck, particularly with some disc protrusion at the C5‑C6 and to a lesser extent at the C6‑C7 levels. However, the spinal cord and adjacent nerve root were not noted to be significantly compromised. He did not believe these degenerative changes accounted for the pain the plaintiff was describing. He also noted a minor central syrinx, a fluid filled cavity in the spinal cord, in the upper thoracic region, but considered it very unlikely to be contributing to his symptoms. He did not consider he needed any specific treatment. He considered the syrinx unlikely to progress, as the plaintiff did not have a Chiari malformation at the cranio-cervical junction on the sagittal magnetic resonance scan. He did not feel any further surgery was warranted and recommended the plaintiff try a TENS machine or perhaps enter a chronic pain clinic. He considered there was some prospect of surgery in the future, but it was not required at present.
Mr Rosenfeld noted the histories obtained by other medical practitioners, indicating that the plaintiff had used various drugs in the past, including marijuana, Valium and Digesic and that there was some mention of him being dependent on drugs. He did not agree with Dr Finch's suggestion of a cervical discography to see if the degenerate discs at C5/C6 and C6/C7 were contributing to his symptoms. He did not feel the procedure was justified.

Mr Rosenfeld accepted that the plaintiff's description of the mechanism of injury could cause initial discomfort or pain, but there was nothing to explain why the pain continued for as long as it had, or as severely as it had, without any changes being seen on x-ray or magnetic resonance scan consistent with an injury caused at that time. The objective clinical findings showed no abnormality in movement of the spine. Nor were there any objective neurological signs. Mr Rosenfeld accepted it was possible to have severe chronic pain without any neurological signs, but that in the plaintiff's case, his pain was out of all proportion to the stated original injury or any physical examination finding. He described it as an excessive pain syndrome for the minor injury that had occurred originally and considered it to be a significant discrepancy. Mr Rosenfeld noted that there may have been a minor back strain at the time of the original injury, but that there was nothing in the current radiological studies or physical examinations to explain why the pain should be continuing with that level of severity. He did not consider the cervical syrinx or the degenerative disc changes in the neck could explain the pain syndrome. He considered that the plaintiff should have recovered from a minor back injury by this time and that any recovery should have been total. There was now no physical reason that he could see for the pain to continue. He accepted that there appeared to be important psychological factors contributing to the pain syndrome, particularly related to his drug dependence.
Mr Rosenfeld considered it unlikely that the plaintiff would be able to return to any work while he remained dependent on drugs and in chronic pain. From a physical point of view, he believed he could cope with the type of work he was doing before, but was not able to cope from a mental point of view. For these reasons, he did not believe that any of the plaintiff's incapacity was the result of any alleged injury on 24 November 1994. He noted that there was no pre‑existing medical condition contributing to the continued incapacity. He considered there may be some minor component of neck pain coming from the degenerative discs in his neck, but that that was not the reason for his severe intrascapular pain. His drug dependence and psychological contribution to the pain syndrome were continuing his incapacity for work. He doubted that a chronic pain clinic would be able to contribute much to the overall control of his pain at that stage. He believed that ongoing psychological support may be required to help him cope with his drug dependency and the social problems which resulted from it. He considered the outlook for a return to regular work to be poor.
The magnetic resonance image of the plaintiff's thoracic spine on 5 September 1996 showed a small central cord syrinx from the T6 to T9 levels, without any apparent underlying cause. The magnetic resonance image of the plaintiff's cervical spine on the same date showed disc degeneration at the C5‑C6 and C6‑C7 levels with shallow disc protrusions at both levels and anterior chord abutment and minor cord displacement at the C5-C6 level.
Magnetic resonance images of the plaintiff's cervical and thoracic spine on 15 August 1999 showed cervical spondylosis from the C5 to C7 levels, with no change as compared to previous imaging in 1996. Nor did it show any change in the size or morphology of the small syrinx from the T6 to T9 levels.
Dr Poli reviewed the plaintiff on 23 March 1999 and wrote a report to Dr Kim Hames on 2 May 1999. In that report Dr Poli noted that the plaintiff was complaining of pain in the left side of his neck into his upper thoracic spine and roughly down to the level of the T8 vertebra. He also complained of increased pain in this area doing most activities, in particular washing the dishes, reading books, playing cards, making beds and sweeping. The plaintiff told him that he coped by taking large quantities of painkillers and then carrying out the activities he needed to attend to to get through his day. He told Dr Poli that he was taking on average between six and eight Codral phosphates a day. Dr Poli noted a decreased range of movement in his neck in all directions. Examination of his thoracic spine showed a full range of movement with pain at the end of the range of movement. Dr Poli noted that the assessment was basically unchanged from when he saw the plaintiff in 1995. He described his symptoms as very significant and considered him unfit for work, but fit for light duties only after an appropriate period of intense physiotherapy, exercise and hydrotherapy to build up his musculature.
The plaintiff was subsequently reviewed by Mr Richard Vaughan, neurologist, on referral from Dr Poli. In his report dated 12 August 1999, Mr Vaughan noted the degenerative changes shown at the C5/C6 and C7 levels on the magnetic resonance image, which he described as being of long standing. He did not consider that they would have been caused by the incident at work on 24 November 1994. He found no evidence of myelopathy or muscle loss and no signs indicative of any compression. Nor did he find any signs indicating any clinical evidence of instability. The plaintiff asked for a repeat magnetic resonance scan for his peace of mind. Mr Vaughan considered that it was not an unreasonable request and agreed to reassess the plaintiff's position, particularly given the degenerative changes across the C5/C6 and C7 levels, which may or may not show any degree of worsening.
By a subsequent report addressed to the plaintiff himself dated 24 August 1999, Mr Vaughan confirmed that he had reviewed the scan which he had ordered following the previous examination and noted no change compared to the imaging of 1996. The position was stable. It had not altered. At that time, Mr Vaughan considered there was nothing to indicate any requirement for surgery. He considered ongoing care should be by way of appropriate exercises, physical therapies and if necessary pain blocks.
The plaintiff was reviewed by Dr Peter C Anderson, rehabilitation physician, on 18 April 2001. Dr Anderson prepared a report dated 23 April 2001 to Dr Teena Leonard, who was then the plaintiff's treating general practitioner. Dr Anderson noted the plaintiff's range of movement in his cervical spine was approximately one half of the normal range, with pain experienced in the supraspinatus and infraspinatus regions of the shoulder girdle, probably associated with cervical restriction of movement. Dr Anderson noted no significant neurological signs in the upper limbs in relation to the deep reflexes, muscle power and sensation, all of which were considered to be normal. He went on to note the plaintiff was taking a large amount of narcotics over a long period of time. He considered the minor problem with the plaintiff's spine may produce abnormal pain experiences, because of the plaintiff's addiction to narcotics, which was a significant factor in his clinical presentation. Dr Anderson did not dispute the plaintiff did not need the narcotics, but noted that the persistent use of narcotics made it difficult to manage individuals with musculo-skeletal symptoms similar to the plaintiff's.
In her report dated 30 August 2006, Dr Tina Leonard, who was at that time the plaintiff's general practitioner, noted no pathology had been found to account for the plaintiff's pain and that attempts at alternative medication had proven unsuccessful. She noted that employment was not feasible given the plaintiff's current state of pain, but was unable to say whether that would be the case for the remainder of the plaintiff's working life.

Claim for common law damages against Rentokil

As at 4 January 2000, if the plaintiff was to commence proceedings for common law damages for personal injuries suffered by him in the performance of his work on 24 November 1994, as a result of Rentokil's negligence or relevant breach of its contract of employment with him, it was necessary for the plaintiff to have elected to retain his right to seek common law damages before a termination date by lodging a form to that effect ("the election form"), certifying that the plaintiff's disability under the Act was not less than 16 per cent. By s 32(8) of the Workers' Compensation & Rehabilitation Amendment Act 1999 ("the Amendment Act"), the termination date was, relevantly, three months after the assent date for the Amendment Act, which was 5 October 1999. The termination date was, therefore, 5 January 2000.
The combined effect of the Act, as it then was (in particular, s 93E), and the aforementioned provision of the Amendment Act was that the election form had to be lodged, with the relevant medical evidence, 21 days prior to 5 January 2000. Consequently, the latest date on which the plaintiff could have elected to retain his right to seek common law damages against Rentokil was 15 December 1999.
On the defendant's evidence, in effect, unchallenged by the plaintiff, the defendant had not been retained by the plaintiff to advise him or represent him on any claim for common law damages against Rentokil until 4 January 2000, at the earliest.
Absent an election, by lodging the election form, by 15 December 1999, the plaintiff would not have been able to pursue any common law claim for damages against Rentokil.
In addition, the finding, to the effect that the plaintiff had recovered from the injury so as to be fit to return to his pre‑accident occupation, created an issue estoppel which would have prevented that issue from being determined by any Court considering any common law claim for damages against Rentokil (Kuligowski v Metrobus [2002] WASCA 170; (2002) 26 WAR 137).
Therefore, even if the plaintiff were to overcome the hurdle created by the failure to make his election within time, any claim for common law damages against Rentokil would have been significantly curtailed by the restrictive effect of the issue estoppel on any part(s) of any award of damages affected by the finding. The defendant's written advice to the plaintiff to that effect, by letter dated 16 February 2000, is consistent with the defendant's evidence about the advice which he gave at his meeting with the plaintiff on 4 January 2000 concerning the prospects of a common law claim for damages against Rentokil.
For these reasons, I am satisfied that as at 4 January 2000, the plaintiff had no prospect of a claim for common law damages against Rentokil.

Claim for common law damages against the manufacturer

At the meeting on 4 January 2000, the defendant was instructed by the plaintiff to investigate whether the plaintiff had any claim in negligence or under the Trade Practices Act 1974 against the manufacturer. Those instructions and the defendant's preliminary advice on the relevant limitation periods are contained in his letter to the plaintiff dated 16 February 2000 (exhibit P1).
It is common ground between the parties that the latest date on which the plaintiff could have commenced proceedings against the manufacturer in negligence was 24 November 2000. As previously mentioned, it is also common ground between the parties that no proceedings against the manufacturer were commenced by that date.
Consistently with his instructions to investigate the potential for a claim against the manufacturer, the defendant appears to have ascertained from Rentokil that the backpack being used by the plaintiff on 24 November 1994 was manufactured by Stihl. He wrote to Stihl by letter dated 16 February 2000 seeking, in effect, pre-action discovery. Stihl replied by letter dated 23 February 2000, expressing some reservations about whether the backpack was manufactured by it and noting that a lap belt had been available as an optional extra for previous models to the Stihl backpack. As previously indicated, it was not clear that the backpack was one which was manufactured and/or supplied by Stihl.
As previously mentioned, the defendant also purchased the Stihl backpack on the basis that it was a successor and similar to the backpack and had it examined by Mr Van der Meer who expressed some views on its safety. The substance of these views was dictated by the defendant after his consultation with Mr Van der Meer and typed up, but the document was not reviewed or settled by Mr Van der Meer. It is, therefore, the defendant's perception of the views expressed by Mr Van der Meer. The substance bears the date 30 October 2000. Nonetheless, it is significant that the risk of injury addressed in that substance is that which would have been caused by the plaintiff picking up the backpack and putting it on his back, thereby subjecting the plaintiff's spine to significant spinal eccentricity and torsional forces. The substance recorded that those eccentricities, together with the large gravity weights of the backpack, would have subjected the plaintiff's spine to significant stress.
There are two observations to make about this recorded expression of opinion. First, Mr Van der Meer is an engineer. I am far from satisfied that he would have had the necessary expertise to express an expert opinion about the matters on which he is recorded as having done so. Secondly, the risk of injury with which Mr Van der Meer was concerned is different to the description of the mechanism of injury by the plaintiff. The plaintiff did not and does not allege that he suffered the injury by putting the backpack on his back, but rather by the way in which it was held to him when he was spraying insecticide up the walls.
For these reasons, this expression of opinion, by Mr van der Meer, would not have assisted any claim which the plaintiff might have had against the manufacturer.
In short, it appears that as at 24 November 2000, there was nothing which identified any design defect in the backpack, which can be said to have caused the plaintiff's injury.
If anything, the plaintiff's injury was caused by a failure to supply a backpack with a spray arm that rotated upwards, so as to allow the plaintiff to spray up the walls of the shed towards the ceiling. It appears that the inability to rotate the spray arm upwards was caused by the dilapidated condition of that part of the backpack, probably through a lack of maintenance. In any event, it appears it should have rotated upwards, but did not for some reason. Moreover, it was the backpack which was supplied to the plaintiff by Rentokil for him to perform the designated spraying on 24 November 1994.
In addition, the backpack which the plaintiff was required to work with on 24 November 1994 did not have a lap or waist belt. The consequence of that omission was that when the plaintiff leaned backwards from his waist to apply the insecticide to the upper reaches of the shed walls, the weight of the backpack was borne by his upper spine in the area where he subsequently complained of pain and stiffness. Again, that is not an omission of the manufacturer, but rather an omission of Rentokil.
In other words, the information available as at or prior to 24 November 2000 would not have indicated any reasonable basis for a claim for common law damages against the manufacturer, even if it was correct to assume that Stihl was the manufacturer.

Legal principles

The applicable legal principles are clear and well established.
For the plaintiff to succeed against the defendant in respect of the potential common law claims for damages against Rentokil or the manufacturer, the plaintiff must prove, on the balance of probabilities, that he has lost something of value as a result of the defendant's omission(s) and that, but for those omission(s), would have pursued the lost cause(s) of action.
The principles are set out clearly in the judgment of Buss JA in Hammond Worthington v DomitilaDa Silva [2006] WASCA 180 at [118] and [119]:
"118.In my opinion, the plaintiff must prove, on the balance of probabilities, that he or she has lost something of value as a result of the solicitor's negligence; that is, the cause of action which became statute-barred had some value. See Sellars at 355; Feletti v Kontoulas [2000] NSWCA 59 per Mason P (with whom Sheller JA and Rolfe AJA agreed) at [34]; Radosavljevic v Radin [2003] NSWCA 217 per Mason P (with whom Handley and McColl JJA agreed) at [52]. The plaintiff must also prove on the balance of probabilities that, but for the solicitor's negligence, he or she would have pursued the lost cause of action. If the plaintiff proves both of those facts, the value of the plaintiff's lost opportunity to enforce the cause of action by issuing and pursuing proceedings to settlement and judgment is to be determined by reference to degrees of probabilities and possibilities. See Sellars, where Mason CJ, Dawson, Toohey and Gaudron JJ said, at 355 ‑ 356:
'Notwithstanding the observations of this Court in Norwest [(1984) 157 CLR 149], we consider that acceptance of the principle enunciated in Malec [(1990) 169 CLR 638] requires that damages for deprivation of a commercial opportunity, whether the deprivation occurred by reason of breach of contract, tort or contravention of s 52(1), should be ascertained by reference to the court's assessment of the prospects of success of that opportunity had it been pursued. The principle recognized in Malec was based on a consideration of the peculiar difficulties associated with the proof and evaluation of future possibilities and past hypothetical fact situations, as contrasted with proof of historical facts. Once that is accepted, there is no secure foundation for confining the principle to cases of any particular kind.
On the other hand, the general standard of proof in civil actions will ordinarily govern the issue of causation and the issue whether the applicant has sustained loss or damage. Hence the applicant must prove on the balance of probabilities that he or she has sustained some loss or damage. However, in a case such as the present, the applicant shows some loss or damage was sustained by demonstrating that the contravening conduct caused the loss of a commercial opportunity which had some value (not being a negligible value), the value being ascertained by reference to the degree of probabilities or possibilities. It is no answer to that way of viewing an applicant's case to say that the commercial opportunity was valueless on the balance of probabilities because to say that is to value the commercial opportunity by reference to a standard of proof which is inapplicable.
The conclusion which we have reached on this question finds support in other considerations. The approach results in fair compensation whereas the all or nothing outcome produced by the civil standard of proof would result in the vast majority of cases in over-compensation or under-compensation to an applicant who has been deprived of a commercial opportunity. Furthermore, it is an approach which conforms to the long-standing practice of taking into account contingencies in the assessment of damages.'
119.In Phillips v Bisley, unreported; CA SCt of NSW; 18 March 1997, Mason P (with whom Meagher JA and Dunford AJA agreed) considered how to distinguish between the "nuisance value" of a lost cause of action, on the one hand, and a lost cause of action which had sufficient "prospects" for a court to conclude that the plaintiff would have been likely to have received a valuable offer of settlement, on the other. His Honour said, at 8 ‑ 9:
'The critical issue, not clearly addressed in the cases, is how to distinguish between the derisory or 'nuisance value' offer which Lord Evershed MR in Kitchen would disregard, and the situation where a case has sufficient 'prospects' for the court trying the negligence claim to be able to say that the plaintiff would have been likely to have attracted a valuable offer of settlement (even if worth considerably less than 100% of the plaintiff's actual loss): cf Yeoman's Executrix v Ferries (1967) SLT 332.
Difficult and elusive though the distinction may be, the court trying the issue of the lawyer's negligence must proceed on the evidence before it. This involves considering the factors mentioned in the passage quoted from Nikolaou, including "the evidence that would or should have been available to the plaintiff at that time" (emphasis added). It also involves looking at the likely response of the other party or parties in the lost proceedings (ie those which would, but for the lawyer's negligence, have been prosecuted in a timely way). Among other things this requires the court trying the negligence claim to make due allowance for the fact that a less than well informed or overly cautious lawyer for the defendant faced with a claim in the lost proceedings might have made a valuable settlement offer. But what the trial judge cannot do, in my opinion, is shut his or her eyes to the evidence showing the information that was known to or was reasonably obtainable by all litigants in the lost proceedings pointing towards an objective assessment of the plaintiff's prospects of success in the lost action.' "
(See also Kitchen v Royal Air Forces Association [1958] 1 WLR 563 at 574 ‑ 575; Instant Nominees Pty Ltd v Redman [1987] WAR 218 at 226 and Nikolaou v Papasavas, Phillips & Co (1989) 166 CLR 394 at 404).

The value of the time-barred causes of action

Having considered all of the evidence, I am not satisfied that the plaintiff has lost something of value as a result of the defendant's failure to commence proceedings against Rentokil or the manufacturer before those lost causes of action became time-barred. Nor am I satisfied that the plaintiff would, on the balance of probabilities, but for the defendant's omission(s), have pursued either of the lost causes of action.
As I have previously indicated, the claim against Rentokil had two significant impediments to it.
First, as at 4 January 2000, the plaintiff could only have pursued an award of damages against Rentokil if he complied with the provisions of s 93E of the Act, as it then was. By reason of the provisions of s 32(8) of the Amendment Act, the plaintiff could only have sought to pursue a determination of a degree of disability, which was required to enable him to seek common law damages from Rentokil, if he had made the necessary election by no later than 15 December 1999. There was nothing the defendant could have done by the time the plaintiff first consulted and retained the defendant.
Secondly, the finding, by the Directorate on 7 July 1997, that the plaintiff had recovered from the injury suffered by him on 24 November 1994 so as to be fit to return to his pre-accident employment, would have significantly curtailed any award of damages and by reason of that curtailment significantly diminished the viability of any claim that could be brought against Rentokil.
Notwithstanding the plaintiff's steadfast and genuine conviction that he was injured on 24 November 1994 and is, therefore, entitled to compensation, in effect, as of right, I am not satisfied either that there was any cause of action which he could have been pursued against Rentokil or which would have been pursued against Rentokil. Notwithstanding his conviction that he is entitled to be compensated, the plaintiff did not give evidence to the effect that he would have pursued the claim against Rentokil were it not for the defendant's omission in that regard. Nor is there any evidence to the effect that the plaintiff would have been able to fund the prosecution of such a claim. On balance, the plaintiff has not discharged the onus of satisfying me that he has lost something of value or that, but for the defendant's omission, would have pursued such a claim.
Nor has the plaintiff discharged the onus of satisfying me that he has lost something of value as a result of the defendant's omission in not commencing proceedings against the manufacturer or that he would have pursued such a claim against the manufacturer, but for the defendant's omission in that regard.
Relying on the evidence before me, the information which was available to the defendant in the period leading up to 24 November 2000 demonstrated no reasonable basis for any claim against the manufacturer in negligence or otherwise. There was nothing to indicate that there was any relevant defect in the design or manufacture of the backpack. Even assuming that it was similar to the Stihl SR400 mistblower, which was examined by Mr Van der Meer, still no relevant defect in the design or manufacture of the backpack was identified. There was nothing about the design or manufacture of that backpack which was in any way relevant to the manner in which the plaintiff claims he was injured by the backpack which he was using on 24 November 1994.
Again, whilst I accept the genuineness of the plaintiff's conviction that he is entitled to an award of compensation as a result of what occurred on 24 November 1994, he has not satisfied me, on the balance of probabilities, that he would have, but for the defendant's omission, pursued a claim against the manufacturer. Again, there was no evidence to that effect. Nor was there any evidence to the effect that the plaintiff would be in a position to fund such a claim. I am, however, satisfied that if such a claim were to be pursued, a properly advised defendant in the position of the manufacturer would resist any such claim and would not make any offer to compromise it.
In addition to these impediments to any claim against Rentokil or the manufacturer, there is a further impediment which applies to both claims. It is the problematic nature of the medical evidence concerning the injury and any consequent disabilities, loss and damage.
I accept that the plaintiff suffered a musculo-ligamentous soft tissue injury to his cervico-thoracic spine on 24 November 1994 while spraying insecticide and using the backpack in the manner he described. There is no evidence to contradict his description of the injury and its immediate sequelae and the early medical reports are consistent with him having suffered such an injury. I am also satisfied that the plaintiff suffered symptoms of pain and stiffness in those areas following the injury, which were disabling. However, it is noteworthy that the plaintiff was able to continue working for 12 months after the injury, albeit with some physical discomfort. I also accept that he was treated for those symptoms with physiotherapy and painkilling and anti‑inflammatory medications.
Nonetheless, the overwhelming preponderance of the medical evidence supports the following propositions. First, that there is no demonstrated pathological basis for the significant and increasing levels of pain and disability about which the plaintiff has complained since suffering the injury. Secondly, there is no satisfactory therapeutic basis for the very significant amounts of painkilling and addictive medication which the plaintiff is consuming on a regular basis. The plaintiff maintains he requires that level of medication to cope with the pain caused by his injury. The preponderance of medical evidence contradicts his assertion. It appears he has a drug dependency problem. Thirdly, it is not clear that the plaintiff's drug dependency has been caused by his injury. It is likely to have been caused by other unrelated factors, including some pre-dating the injury. Fourthly, it is the plaintiff's very significant intake of painkilling and other dependency‑inducing medications which accounts for most if not all of his incapacity for gainful employment and that has been the case for quite some time. Finally, the most pressing need for treatment is psychiatric and drug rehabilitation treatment directed at the plaintiff's drug dependency, and unrelated to any injury related sequelae. Each of these matters is satisfactorily proven by the medical evidence and I find accordingly.
The consequences of my findings on the medical evidence is that any damages which would have been recoverable had the plaintiff successfully pursued a claim against Rentokil or the manufacturer would be minimal.
If I were required to assess damages, then I would do so on the following bases.
I have found the plaintiff suffered a musculo-ligamentous soft tissue injury to his cervico-thoracic spine on 24 November 1994 which caused pain and stiffness, but which did not prevent him from working for the next 12 months. Consequently, I accept that his injury and symptoms and any disabilities arising from them affected him in his day to day life, but not to such an extent as to require him to stop work. I also accept that, on the balance of probabilities, it was necessary for him to take some painkilling and anti‑inflammatory medication to ameliorate his symptoms.
The evidence on the duration of any symptoms and disabilities in fact caused by the injury is a little unclear. The preponderance of that evidence is, however, to the effect that the injury was a minor one and should have resolved within a reasonable time. Unfortunately, the medical reports do not clearly indicate when the injury, its symptoms and any resultant disabilities should have resolved.
Doing the best I can in the circumstances, I would have assessed the plaintiff's general damages in the sum of $7,000.00.
There is no evidence on which to make any assessment in respect of any other heads of damage.
The likely quantum of the plaintiff's common law damages alone, but also in combination with the plaintiff's very high expectations as to his entitlement to compensation in the millions of dollars, would also, in my view, have militated against the likely, or indeed successful, pursuit (including compromise) of any claim against Rentokil or the manufacturer. They are further reasons why the plaintiff has, in my view, lost nothing of value.
For these reasons, I have concluded that the plaintiff has not discharged his onus of proving, on the balance of probabilities, that he has lost something of value as a result of the defendant's omission(s) either in respect of a claim against Rentokil or the manufacturer. Nor has the plaintiff proved, on the balance of probabilities that, but for the defendant's omission(s), he would have pursued either claim.
My findings in this regard are unaffected by the expression of opinion in the letter from the defendant to the plaintiff dated 18 December 2000 (exhibit P4 at pages 27 to 28), in which he described the plaintiff as having a "good claim" against the manufacturer. On a closer examination of that letter, it is clear that the expression of that opinion is based on the statement in the immediately preceding paragraph to the effect that advice had been obtained from an engineer condemning the equipment by saying it was dangerous to use it. When the evidence about the advice given by the engineer, presumably Mr Van der Meer (there being no other engineer referred to in the evidence), is examined, it is clear that there was no advice to the effect that the backpack was dangerous to use in the way in which the plaintiff says he was using it at the time he was injured. There was no evidence of any expert opinion to that effect. Moreover, as I have already indicated, there was simply no evidence of any defect in the design or manufacture of the backpack. The expression of opinion by the defendant was therefore inaccurate. It also has to be seen in context. It was a letter which was vetted by the defendant's professional indemnity insurer before it was sent to the plaintiff. It must also be read against the background of the defendant's evidence about what he meant by using terminology such as a "good claim", namely, a claim worth further investigation. For these reasons, I have placed no reliance on that expression of opinion in arriving at my findings on whether the plaintiff has lost something of value as a result of the defendant's omission in commencing proceedings against the manufacturer before any such cause of action was time-barred.
The plaintiff's evidence to the effect that he met with the defendant after the expiry of the relevant limitation periods and was told by the defendant to, in effect, sue him and the defendant's inability to recall any such conversation are also, in my view, of little consequence.
The defendant's evidence about what was said is, as previously noted, relatively unclear. The defendant disputes he would have said anything of that kind, because he had taken advice from his professional indemnity insurer at that stage and it would be inconsistent for him to say such a thing, having gone to the trouble of having that insurer approve the letter to the defendant dated 18 December 2000.
I am not satisfied the defendant invited the plaintiff to sue him. It seems highly unlikely the defendant would say such a thing, in the circumstances prevailing at that time. It may have been that there was some conversation between the plaintiff and the defendant, which the defendant can no longer recall, but it does not follow from that that there was an invitation in such terms by the defendant to the plaintiff for the latter to sue him.
In any event, it is unimportant. It is not and could not be an admission. Nor does it give rise to any relevant adverse inference against the defendant. Consequently, it does not affect my findings that the plaintiff has not lost something of value as a result of the defendant's omission(s).

Nominal damages for breach of contract

Counsel for the defendant quite properly, in my view, conceded during the trial that the defendant had breached his contractual obligation to have either commenced proceedings against the manufacturer or given the plaintiff advice about the difficulties in pursuing a claim against the manufacturer, thereby enabling him to decide whether to pursue it or not.
Counsel for the defendant also quite properly, in my view, conceded that in the circumstances there should be an award of nominal damages.
Nominal damages are awarded where a plaintiff proves a breach of contract, but cannot show that recoverable damage flowed from the breach (Bowen v Blair [1933] VLR 398 (FC), Mann ACJ at 402; Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd (1938) 61 CLR 286 and Goldburg v Shell Oil Co of Australia Ltd (1990) 95 ALR 711 (FCA)).
Accordingly, I find that the defendant did breach his contract with the plaintiff in the manner conceded and award the plaintiff the sum of $10 by way of nominal damages.