Pember v TRPCEVSKI - [2004] WADC 157

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: PEMBER -v- TRPCEVSKI [2004] WADC 157

CORAM: GROVES DCJ

HEARD: 29-31 MARCH 2004

DELIVERED : 23 JULY 2004

FILE NO/S: CIV 3403 of 2002

BETWEEN: ROSS STANLEY PEMBER
Plaintiff
AND
LAZO TRPCEVSKI
Defendant

Catchwords:

Damages - Assessment - Motor vehicle collision - Personal injuries - Pre-existing disability resulting from earlier work related accidents - Issue as to any retained earning capacity - Aggravation of pre-existing condition - Severe post traumatic headaches - Injury to cervical and lumbar spine - 42 year old plant operator

Legislation:

Motor Vehicle (Third Party Insurance) Amendment Act 1994

Result:

General damages $51,400 and allowances for gratuitous services and past and future medical expenses

Representation:

Counsel:

Plaintiff: Mr I L K Marshall
Defendant: Mr P B Momber

Solicitors:

Plaintiff: Ian Tait
Defendant: Peter Momber

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

Hendrie v Rusli [2000] WASCA 249
Southgate v Waterford (1990) 21 NSWLR 427
Wylde v 'Arriaza, unreported FCt SCt of WA; Library No 970359; 23 July 1997

Case(s) also cited:

Nil

GROVES DCJ: On 25 June 1998 at approximately 10.30 am the plaintiff was the driver of a Jeep Cheroke motor vehicle ("the vehicle") travelling in a southerly direction on Marine Parade at Cottesloe. At the same time the defendant was the driver of a Mazda truck ("the truck") travelling in a westerly direction on Grant Street towards the T‑junction of Grant Street with Marine Parade. The defendant proceeded to make a right turn at the T‑junction in order to travel in a northerly direction on Marine Parade and in so doing caused the truck to turn into the path of and collide with the plaintiff's vehicle ("the accident"). The accident was caused solely by the negligence of the defendant and liability is admitted. The action proceeded to trial for assessment of damages.

The plaintiff

The plaintiff was born on 26 October 1955 and was 42 years of age at the date of the accident. He is now 48 years. When he saw the truck moving into his path the plaintiff was three or four car lengths away and he applied his brakes hard. He braced himself for the imminent impact. He was wearing a seat belt. It had been drizzling and the road surface was wet causing the vehicle to skid forward to impact. The plaintiff's vehicle collided front on with the front right hand side of the truck. The speed of his vehicle at the point of impact was estimated as 35‑45 kilometres per hour. It was quite a severe impact with both vehicles coming to a standstill at the point of impact. The plaintiff's vehicle was written off. After the accident the plaintiff alighted his vehicle and went to the truck to ascertain the wellbeing of the defendant and his passenger.
At impact the plaintiff was restrained by his seat belt but his head had gone forward and back and had struck the right hand pillar immediately behind the driver's door. Post impact the plaintiff described his condition as being shocked with some dizziness. He got a lift home and later in the day when he was feeling "sore all over" he went to his local GP, Dr Chin to be checked over.

Past medical history

The plaintiff's past medical history included a right cervical rib resection in 1980, a fracture of the C5/C6 cervical vertebrae from a rugby injury in 1990 which resulted in partial right arm paralysis due to cord compression injury for a short period, and removal of a Meckal's diverticulum in 1990.

Prior Work accidents

Prior to the accident the plaintiff had suffered injury in two work related accidents ("the work accidents").
The plaintiff was a working director of Tymor Pty Ltd. The company was subcontracted to undertake work involving the laying of cables and power lines underground. The plaintiff's activities included operating mechanical equipment, digging, excavation and truck work. It was heavy physical work.
On 28 November 1996 his chest was injured when about twelve six metre steel poles rolled towards him after he had untied a rope securing them to the front and top of his truck. He braced the poles with his anterior chest. He did not feel any crack or break but felt somewhat bruised and "strained" over his sternum after the injury. The pain subsided slowly but not completely until he had a second accident.
On 20 December 1996 he was sliding the same type of poles off the rear of his truck, following the pole towards the rear of the truck and guiding it over the end of the truck tray. One of the poles hit some resistance and bounced back hitting his anterior chest wall in the upper portion of his sternum. He was not able to continue unloading the truck. He had no obvious bruising of his anterior chest wall but had marked chest pain causing poor sleep that night. Next day he went to see his regular GP Dr Kerry Hanrahan but she was not there. He saw Dr Fiona Campbell. An ECG was apparently normal and a chest x‑ray failed to demonstrate any overt abnormality.
His pain persisted for several weeks and he was referred to rheumatologist, Dr Ken Maguire. Dr Maguire described the plaintiff as having "…incurred an injury over the chest wall with direct trauma to the chest wall particularly involving the sternomanubrial junction." Dr Maguire injected the manubrial sternal region with corticosteroids. The plaintiff had transient improvement from steroid and local anaesthetic injection. His failure to improve sufficiently resulted in a bone scan and CT of his sternum. The former demonstrated increased bone uptake at the manubrial sternal joint and the latter demonstrated a bone fragment posterior to the manubrial sternal joint. Treatment included Naprosyn and other anti‑inflammatory medications. The plaintiff was unable to tolerate these medications due to cerebral and gastric side effects. He was referred for radiotherapy however that was declined due to potential side effects. Only the passage of time would see a recovery. The prognosis was that the posterior manubrial sternal fracture would slowly resolve but that there would be ongoing persistent sternal pain.
Since that work accident the plaintiff has not returned to any remunerative employment. In May 1997 he attempted a return to work and lasted for about one week. To assist with re‑training away from manual tasks the plaintiff undertook an adult education programme in bookkeeping at Fremantle TAFE.
In October 1997 the plaintiff was reviewed by Dr Michael Prichard, a specialist in respiratory medicine. He reported that he believed that the plaintiff was physically fit to perform light activities, eg office work and running messages, but not any form of work which involved upper thoracic exercise. He considered the prognosis for recovery was good given that it was not unusual for sternal fractures to take up to two years to recover fully.
In late 1997 the plaintiff travelled to Kambalda, Leonora and Norseman to submit tenders involving construction and maintenance projects. He was successful in his tender for work in Norseman where he would be engaged in a supervisory capacity employing sub‑contractors on behalf of a caravan park to develop 40 additional caravan bays. This project was expected to commence in January 1998, however with a decline in the gold price the work did not proceed. In December 1997 he commenced a work trial with Newro Electrical also in a supervisory capacity. He found that on occasions he still had to perform physical tasks. He had to cease these activities after a couple of weeks due to increasing chest symptoms due to these manual tasks. Attempts to assist the plaintiff in his re‑training into new job descriptions was ceased in early 1998 because the severity of pain precluded any meaningful rehabilitation. That was the last occasion when he has attempted work of any kind.
It was the plaintiff's evidence that at the time of the motor vehicle accident on 25 June 1998 some 18 months after the second of the work accidents he was still having a lot of problems with soreness resulting from upper body movement. He felt he was getting stronger as a person body wise and he was looking forward one day to getting into non‑physically active work in the line of being a supervisor or doing clerical work. He accepted that by reason of his work accidents he was not fit to return to heavy work of the nature which he had done previously.
The consensus of medical opinion was that as a result of the work accidents the plaintiff would not be able to return to the type of heavy physical work in which he was engaged prior to that injury. He was rendered permanently unfit for heavy work duties.
It was considered also that with the plaintiff's ongoing disability that employment was impossible to find. What stopped the plaintiff working at all was the severe chest pain experienced with all forms of upper limb activity. Dr Maguire expressed the view that he could not expect the plaintiff to return to any meaningful work either full‑time or part‑time for an indefinite basis. Further Dr Maguire in his report of 8 April 1998 (10 weeks before the motor vehicle accident) stated:
"There have been no specific complicating factors in his recovering, except for severe exacerbations of his pain due to attempts to undertake re‑training and work activities. His prognosis in the short term is extremely grave in that relief of pain has not been successfully achieved in the long term with a range of options. His prognosis in the long term is indeterminate since surgical review has not, at present, been undertaken. His present capabilities are such that he cannot work in any meaningful work capacity at present." (Emphasis added)
Because of the persistence of symptoms the plaintiff was referred to Mr Mark Newman, cardiothoracic surgeon whom he saw on 8 April 1998. The plaintiff reported "chronic pain in the middle of his chest." Mr Newman noted that the CT scan had revealed an erosive arthritis at the back of the manubrio sternal joint. It was his opinion that the only surgical option would be excision of the manubrio sternal joint with resulting fibrous union. His assessment was that this procedure would have about a 50 per cent chance of fixing the pain symptoms. He did not envisage that the plaintiff would be able to return to any labouring type of occupation. His report suggested that desk work "would have been a possibility" but acknowledged in cross‑examination that it was also a possibility that the plaintiff might not have been able to do that because such work requires use of the upper limbs with referred pain to the chest. The plaintiff did not proceed with operative intervention.
On the morning of the motor vehicle accident the plaintiff had attended on Dr Maguire for review. Dr Maguire's report of 29 June 1998 referring to the plaintiff's sterno manubrial pain notes:
"Unfortunately, recent injections have not led to any improvement."
In evidence he described the plaintiff's sterno manubrial problem as at the time of the accident as being "…a stable chronic pain condition managed with Panadeine Forte, intermittent injections and simple medications…". Subsequent to the motor vehicle accident the plaintiff presented to Dr Maguire on 13 August 1998 when "…his major complaints were those of the left hip and aggravation of problems with his chest wall." The increased pain in the chest called for more potent medications and he was commenced on MS Contin and because of side effects was changed over to Physeptone. He was reviewed again on 16 September 1998 when he was given cortico‑steroid injections over the sterno manubrial region. He was reviewed again in October 1998 where his improvement was noted as having been significant with the Physeptone which he was still taking and he was coping much better. As to the sterno manubrial aggravation Dr Maguire opined that it was "fairly significant" and indicated "a fairly severe pain state" given that the plaintiff had to go onto the morphine preparations.
The plaintiff was reviewed by Dr Maguire on 10 December 1998, 13 April 1999 and 18 May 1999. Over that period there is indicated from Dr Maguire's reports a slight degree of improvement of the sterno manubrial pain after injections and continuation with his analgesic medications.
It was in about June 1999 (12 months post accident) that the plaintiff complained to Dr Maguire of headaches which he was experiencing. Dr Maguire's report of 29 June 1999 notes:
"Problem 2 – headache: his (sic) he has severe headache problems at present after his motor vehicle accident towards the end of last year. I have suggested a review by Dr Peter Silbert in relation to his migraine problems."
In February 2001 (30 months post accident) the plaintiff indicated to Dr Maguire a low back problem which he suggested was also a consequence of the motor vehicle accident. The plaintiff was referred to other specialists for investigation of his low back complaint.

AXA Insurance and common law claim

A few months before the plaintiff's first work related accident in November 1996 he had fortuitously taken out an income accident benefit policy with AXA Insurance whereby if he were to suffer a work accident he would "…receive approximately – up to $600 or $700 per week" (plaintiff's evidence). The income is increased by about three per cent per annum for inflation and is continuing to age 65 so long as he remains incapacitated for employment. Dr Maguire continues to certify the plaintiff's unfitness for work every three months so as to maintain the plaintiff's income from AXA Insurance.
Subsequent to the work related accident in December 1996 the plaintiff received workers' compensation payments from his employer's workers' compensation insurer. Those payments were topped up to his insured income level by AXA Insurance. There was a time when the plaintiff was having problems with lack of finances because he was being thwarted with difficulties in getting his payments from AXA Insurance. Dr Maguire mentioned that this difficulty caused the plaintiff much worry and exasperation and may have contributed to psychological problems.
In June 2000 the plaintiff settled out of court a common law action which he took in relation to his work accidents. The action was settled for $200,000 which included a component for future economic loss of $100,000. Since his workers' compensation cut‑out the plaintiff has continued to receive from AXA Insurance his full benefit under the income accident benefit policy.
Prior to settlement of the common law claim Dr Maguire by letter dated 8 June 2000 responded to questions asked of him by the plaintiff's then solicitors. The report states:
"2.Localised pain over the sterno manubrial joint. Increasing pain has been noted with all forms of chest expansion, local palpation and attempts to use his arms in any resisted capacity be it abduction, adduction or internal rotation of shoulder to increase power across the pectoralis musculature.
4.His prognosis is unchanged and he will be left with chronic disability in relation to the sterno manubrial joint.
5.He has a severe permanent residual disability involving the sterno manubrial joint. This is associated with increasing problems involving pain particularly with any form of arm activity. He does have difficulty using his arms which leads to overall residual disability of bilateral upper limb functions loss of 30 per cent on the left and right side.
8.He is permanently unfit for any heavy duties and essentially unemployable in relation to any tasks involving significant lifting tasks."
It is noteworthy that no mention was made by Dr Maguire of any aggravation or exacerbation of the sterno manubrial injury as a consequence of the motor vehicle accident.
More recently in his report of 29 May 2002 to AXA Australia Dr Maguire states:
"2.The cause of his present condition relates to both his work related injury and to his motor vehicle accident and their sequelae.
5.The nature and severity of his symptoms of chest wall pain were associated with increased difficulties with coughing, sneezing, deep inspiration and movements of his upper arms, limit all his abilities for upper limb activity. His neck and lower back symptoms and particularly his associated headaches limit his ability for all forms of manual type activities. Thus the limitations imposed upon him as a result of his 'musculi skeletal injuries' (which in cross‑examination he indicated refers to the sterno manubrial injury only and not the neck and lower back) 'are such that he is totally unable to work as an underground plant operator.
9.Mr Pember will never be able to return to work either in a partial or full‑time capacity in the future."
After cross‑examination on the matters raised in that report Dr Maguire in re‑examination was invited to clarify matters further. The following is an extract from the transcript:
"MARSHALL, MR: … ‑ you said to my learned friend that the ability to do heavy work had already gone as a result of the chest injury. So far as the motor vehicle accident, you have said in your report that it was a severe aggravation of the chest wall injury. What was the role of the severe aggravation? Did it have any role?‑‑‑Not from the point of view of his total employability. As I said, we had already gone through with the rehab providers to look at work options and felt that there were no viable work options for the future. The only major issue I was confronted with from the point of view of the motor vehicle accident is the fact that he had other medical problems that would need other medical interventions but from an employability point of view it appeared that he was still unemployable at the time that I saw him after the motor vehicle accident simply because of his sternum manubrial…
So putting aside then any form of manual type activity, what then was left after the sternum manubrial problem, absent the motor vehicle accident?‑‑‑The major problem was the sternum manubrial problem prior to the accident and that precluded him from doing the heavy manual type tasks. As I said, we had attempted the re‑training or people had reviewed him, should I say, in relation to his retraining and come to the conclusion that he was unsuitable to re‑train.
GROVES DCJ: When you say 'unsuitable to re‑train', that is for any work activity?‑‑‑At that stage he was Yes.
MARSHALL MR: What about doing light work, given the sternum manubrial problem?‑‑‑That was assessed by the rehabilitation people and it was deemed that he should be trialed for that, but my understanding from their reports is that he never was able to do those particular tasks.
MARSHALL MR: What I want really is for you to just clarify for the Court what was the role of the motor vehicle accident in his present condition – the motor vehicle accident and its sequelae in relation to his work?‑‑‑From a work capacity point of view we deemed him unfit to do work duties before that point any way so in a sense the motor vehicle accident hasn't really altered his work ability because we had deemed him unfit at that point, but the point I was making…is to say as a result of the motor vehicle accident other problems had developed and he needed other medical interventions."
I conclude from the evidence that by reason of his work related injury the plaintiff was left with no residual work capacity. He was not able to return to his past employment and, because of his sterno manubrial injury, he was unsuitable to be retrained into any other work activity. As at the date of trial he was still being certified by Dr Maguire as unfit for work. Whilst I accept that his condition was compounded by the injuries arising from the accident, his earning capacity had already been lost because of his work injury.

After the motor vehicle accident

The plaintiff was wearing a lap sash seat belt. He was thrown forward restrained by the seat belt and back in the seat. He struck the right hand side of his head against the window pillar. He suffered no bruising or cuts. He alighted from his vehicle and remained at the scene for about 45 minutes before taking a lift home. Later that afternoon he attended his general practitioner Dr Chin for him to "…check me out." Dr Chin's reports (exhibit 14) were tendered by consent. His report dated 20 July 1999 states:
"On examination he was found to have tenderness in all his cervical facet joints with tenderness in his right sterno mastoid muscles, with pain in his joints with neck extension and right flexion, with restriction in the right flexion. Examination of his chest showed very tender costo condral junctions and the condral sternal joint anteriorly, as well as very tender costo vertebral joints posteriorly. He has tenderness in his lumbar spine with severe pain in the left quadratus lumborum, para‑spinal and gluteal muscles. Straight leg raising on the right side was 80 degrees and his left was 70 degrees."
The reports also states that the plaintiff "developed severe migraine headache after the accident". Dr Chin's report does not note what if any treatment was prescribed. It does note however that the plaintiff had been referred by others for physiotherapy, manipulative therapy and assessment for his migraine headaches. Later reports indicate that the physiotherapy treatment had given some relief of his lower back pain as had laser acupuncture.
As well as attending on Dr Chin who was his local general practitioner the plaintiff continued to attend on Dr Hanrahan who had known the plaintiff and his family since the early 1980's and had been the plaintiff's general practitioner since 1985. The plaintiff had attended on her following the second work accident on 23 December 1996. She "basically provided referrals to the appropriate people, gave him the appropriate medication and supervised the general practice type of issues regarding his (work related) injury. She provided to the workers' compensation insurer progress/fitness medical certificates" (exhibit 11). She became aware that the plaintiff was involved in a motor vehicle accident but was not involved directly in regard to any injuries sustained as he was attending his local general practitioner, Dr Chin, and because the plaintiff was already under the care of various specialists and his care, so far as she was aware, was continued with them as regards the motor vehicle accident. She was not involved with medical treatment of any physical injuries arising from the motor vehicle accident. In approximately March 1999 she did have general discussion with the plaintiff assessing his psychological and emotional state and offered support. This was around the time that he was having difficulties with AXA Insurance. She subsequently referred the plaintiff to Ms Jennifer Wright, clinical psychologist (referred to later).
On the home front the plaintiff described how his relationship with his wife and family has deteriorated markedly since the accident. Migraine headaches occur three or four times per month. He complains of stiffness and soreness in the neck with a constant dull pain increasing sometimes to a sharp pain. Looking up or looking down causes him to feel dizzy. He has low back pain all the time. He described it as a dull ache to sometimes excruciating pain. He has adapted his movements to avoid causing such pain. He complains that over the last 18 months he has experienced pins and needles down to his toes and that his legs feel heavy fatigued and sore. He wears a fibreglass back brace extensively. When he walks fatigue sets in quickly and he is unable to walk for long distances. He is unable to assist with many tasks around the home. He is able to lift and carry and do the grocery shopping. He can only drive a motor vehicle for short periods. Bladder and bowel control has also been affected. Whereas he had always been active his social, sporting and recreational life has been impacted although he acknowledged that the motor vehicle accident had not changed things because he had been unable to play sport since his work accidents. His family relationships are under stress and he complained that his physical relationship was affected. He attributes this to the pain which he experiences and limitations on his movement and the constant medication which he has to take.
His wife, Kerry Frances Pember, described a deterioration in their relationship. She described the relationship as "strained" and that the plaintiff was "a cranky person to be around". He is aggressive in his moods and complains of neck and back pain and migraine headaches from time to time. She observed that the plaintiff now does little around the household. Prior to the accident he shared the load in undertaking the household chores. He continues to do washing up and some household cleaning. It was her estimate that she does now about 8‑10 hours per week more around the household than she had done prior to the accident. The only relief she has from the situation is when the plaintiff goes away for two or three weeks at a time "looking at rocks" as she described his mining/prospecting interests.
In cross‑examination of the plaintiff three surveillance video tapes were tendered (exhibits 4, 5 and 6). On 11 April 2002 the plaintiff is shown getting into a car without restriction and walking across a carpark with a slight limp. Similar were his movements on 11 November 2003. On 24 November 2003 he is shown reaching up above his head and lifting up timber and backing a motor vehicle with boat on trailer behind, both apparently without any difficulty. On 29 December 2003 he is shown as dressed smartly and walking without any apparent restriction. On 3 January 2004, his sister‑in‑law's birthday, he is shown seated at a table in a restaurant, walking across the street and getting into a motor vehicle. The plaintiff appears to be enjoying the social occasion and his activities were without apparent restriction.
In cross‑examination, his trips to remote areas was raised. It transpired that he and others have or have held a number of exploration leases either in the Goldfields, or in the case of Glen Florey Station, the north Gascoyne region. It was apparent when he was tackled on this subject that his demeanour changed markedly. He became defensive and guarded in his responses and his manner was one of some reluctance to talk about the subject. Nevertheless, it was ascertained that he was actively engaged at least to the extent of walking about the leases, camping out in remote locations and as he described "wandering around" and "looking at rocks". He described this as going bush for a couple of days. His wife on the other hand said that he was away for two or three weeks at a time.
When all is taken into account I come to the view that I must be cautious in accepting the plaintiff's evidence where it is not otherwise supported by independent evidence. It is apparent to me from the videotape and from the evidence concerning his prospecting activities that the plaintiff is physically active and is not as he described in cross‑examination, a domestic recluse with a menial social life. If he is able to travel to remote areas prospecting and is there able to fend for himself then clearly he is able to do more around the home than he would have me believe. Not all of his woes can be attributed to the motor vehicle accident. Financial and business worries were continuing for about 10 years prior to his work accidents. Pain and depression followed those accidents. There were problems with his insurance and matters related to his common law claim. No doubt all of those things contributed to stress and anxiety on the home front. Furthermore, as will be noted from my evaluation of the medical evidence there are reservations as to the validity of certain of his complaints or at least the extent of them. In all the circumstances it is my conclusion that the plaintiff has to a degree exaggerated his symptoms, his complaints and the sequelae of the motor vehicle accident.

Medical evaluation

(i) Respiratory

I have referred earlier in these Reasons to Dr Michael Prichard's report of October 1997. The plaintiff was reviewed again by Dr Prichard on 25 August 1999. The plaintiff made no mention to him of any intervening trauma or exacerbation of the chest wall injury. The plaintiff presented as someone with chronic pain syndrome and gave a history that when typing on a keyboard he experienced pain in his chest. He reported to Dr Prichard that he had decided that continuing to work with the sternal abnormality represented an occupational hazard and was "unsafe". Dr Prichard observed that most sports and probably all physical sports are likely to aggravate the plaintiff's sternal pain. It was his opinion that the plaintiff's communication skills and possibly performing short tasks on a computer were the extent of his employment skills. Finally, Dr Prichard said it was plausible that the accident may have aggravated the symptoms but he was not able to say to what extent, if any.

(ii) Headaches

Dr Chin's reports indicate that the plaintiff presented to him complaining of severe migraine headache post accident. In about June 1999 the plaintiff complained to Dr Maguire of headaches and was referred to Dr Peter Silbert, neurologist, whom he saw on 24 June 1999. The plaintiff presented to him a history of not having experienced headaches prior to the motor vehicle accident but subsequently experiencing right fronto‑temporal headaches and a right upper cervical discomfort. The headaches he said occurred at least weekly and at other times he had a bifrontal‑retro‑orbital pressure feeling consistent with a muscle contraction headache. He complained that the headaches were constant and pressing in nature and that he slept poorly as a result of this discomfort.
Neurological examination was normal. Mr Silbert found that he had a "reasonably full range of movement in this cervical spine, but was focally tender over the right C2/3 facet joint and greater occipital nerve." He concluded that the plaintiff's headaches "…are a combination of muscle contraction headaches and right sided cervicogenic headaches related to the right C2/3 facet joint." He proposed physiotherapy engaging in an upper cervical exercise programme. This did not result in significant improvement. He also reviewed the plaintiff about a feeling of imbalance. Vestibular function test did reveal left sided peripheral vestibular disturbance. Mr Silbert concluded however that condition was probably pre‑existing as the knock which the plaintiff had received in the accident had been to the right side of his head. Mr Silbert referred the plaintiff to Dr Jeff Gee, pain specialist, for consideration of facet joint injections and other pain management procedures. Dr Gee was not called to give evidence and nor were any reports by him tendered.
It was Mr Silbert's opinion that the headaches which the plaintiff experiences "…have a temporal relationship to the motor vehicle accident, and are consistent with cervicogenic headaches arising from the right upper cervical spine facet joints (C 2/3)."

(iii) Cervical and lumbar spine complaints

Dr Chin's reports indicate that post‑accident the plaintiff presented with tenderness in all his cervical facet joints with pain on extension and restriction in the right flexion. He also found tenderness in the plaintiff's lumbar spine with severe pain in the left quadratus lumborum, paraspinal and gluteal muscles.
In February 2001 the plaintiff had indicated to Dr Maguire a low back problem. He had facetal injections at the C2/3 levels which gave him two weeks of reasonably good pain relief with regard to the head pain and injections into the lumbar facet joints which also gave good relief for about two weeks. Other treatment included anti‑inflammatories and analgesics but with little relief. He also reported experiencing quite severe exacerbations of his pains which required strong analgesics namely Kapanol, Maxolon, Losec and Endep.
He was referred to Dr Hamid Hamzah, a consultant in anaesthesia and pain management. Dr Hamzah's report of 9 November 2001 (exhibit 9(a)) states:
"MRI's of the lumbar and cervical spine did not reveal a significant amount of abnormality and the only conclusions were that he had a minor annular bulge at C5/6 without nerve root compromise or central canal stenosis. There was minimal degenerative changes at the other levels and, as far as his lumbar spine was concerned, there was very little change with the MRI scan dated 13 June 2000."
On 7 January 2002 facet rhizotomies were performed at the L1/2 and L5/S1 levels which the plaintiff reported gave him some slight relief of pain. The next procedure was on 29 May 2002 when the plaintiff reported more pain in the right neck area, right eye pain and severe headaches. A greater occipital nerve block was performed. When reviewed on 19 March 2003 the plaintiff complained of considerable low back pain and spasms. Dr Hamzah proposed performing a caudal epidural injection as well as bilateral facet injections into the low back. Appointments for these procedures to be performed on 31 March and 13 November 2003 were not utilised. However, on 5 February 2004 Dr Hamzah did a bilateral L1/2, L2/3, L3/4, L4/5, L5/S1 facetal rhizotomy and a caudal epidural injection.
Dr Hamzah found it puzzling that the plaintiff continued to report back spasms despite the treatments he had provided. On examination he noticed that the plaintiff had very tight lumbar musculature and had difficulty with flexing his spine and also straight leg raising. In relation to tight musculature he acknowledged that such could be either an involuntary or voluntary response to the investigation.
At the request of his solicitors the plaintiff was referred to Mr Michael Lee, a neurosurgeon, for review. His report of 16 November 2000 (exhibit 13) states:
"Examination revealed a normal range of cervical movement but discomfort at the extremes and pain on the extremes of rotation. There was tenderness to palpation in his cervical musculature on the right side. There was discomfort in the lumbo sacral region, a slight reduction in lumbar movement in all directions, there was slight reduction in straight leg raising on the left but no symptoms to suggest nerve root tension. I couldn't find any neurological deficit. He has had radiological imaging of both his neck and lumbar spine including an MR of his lumbar spine. The latter has demonstrated a left sided annular bulge at L5/S1 which contacts but doesn't displace the S1 nerve root. The cervical spine studies were unremarkable considering his age. There are degenerative changes noted at C5/6. This may be related to a sporting injury ten years ago.
Historically, his symptoms that continue are consistent with being the result of the motor vehicle accident on the 25^th of June 1998 in which he sustained a flexion/extension type of injury to his neck. This has resulted in cervico‑cranial headache on the right side being I suspect, a combination of muscle contraction headache and damage to the C2 ganglion.
He has also injured his lumbo sacral region and the pain I think that he is predominantly experiencing in that region is the result of a jarring injury. The L5/S1 disc bulge may be a result of that injury with intermittent nerve root irritation resulting in leg pain."
Mr Lee considered the overall prognosis in time as reasonable noting that these sort of injuries do take a long time to settle. He did not think that the plaintiff would ever become totally symptom free. He did not think additional treatment was warranted other than continuing physical therapy especially during periods of exacerbation. Continuing control of pain would be necessary.
When reviewed on 19 December 2003 Mr Lee noted that there did not seem to have been much improvement over the preceding three years. The history provided to him however suggested that the frequency of pain episodes might have been less. Examination revealed only slight restriction of cervical movements in all directions. There were no abnormal neurological signs but the left leg pain which the plaintiff complained of suggested to him an intermittent S1 nerve irritation. Surgical intervention was not appropriate, continuing treatment would include pain relief measures. He did not consider that he was qualified to express an opinion as to the plaintiff's employability.
In cross‑examination he acknowledged that he had not been able to determine on radiology a specific injury that would specifically be causative of the symptoms which the plaintiff described to him. His clinical assessment was reliant upon the plaintiff's complaints of pain and the debilitating nature of them. However, his perception was that the type of headache that the plaintiff was complaining of was consistent with the type of headache that patients experience when they have injured their neck and cranio cervical region.
Dr Nicholas Anastas, an orthopaedic surgeon, saw the plaintiff at the request of the defendant's solicitors. He saw the plaintiff on 2 December 2003 (reports exhibit 7). On examination he could not elicit any neurological deficit in the upper or lower limbs. His report states:
"When lying supine he resisted any more than 20 degrees of straight leg raising but in the sitting position he had a straight leg raise of about 80 degrees and I cannot explain this inconsistency for straight leg raising on anatomical grounds."
He regarded the inconsistency in the result of the two tests as being gross. He was not able to give an explanation as to why there would be such a gross inconsistency. The significance of straight leg raising can sometimes have a bearing on whether pain is referred from the back and whether there is any nerve root being stretched. A straight leg raise of 20 degrees with objective neurological signs would be quite significant. However, he could not elicit any neurological deficit in the upper or lower limbs.
He found the features of the cervical spine consistent with the plaintiff having a soft tissue musculo‑ligamentous type injury. Whilst he would have considered that such an injury, ie, cervical injury in a whiplash situation, would have resolved the fact that he continued to complain of symptoms after five and a half years caused Mr Anastas to consider the symptomatology as permanent. He assessed the disability in the cervical spine as being 5 per cent loss of efficient use. That the plaintiff continues to complain of symptoms after so long he regarded as being inconsistent with the normal curative process.
In relation to the lumbar spine he assessed the disability to be 7.5 per cent loss of efficient use of the whole thoraco‑lumbar spine. In making those assessments he was reliant upon the plaintiff's symptom description.

(iv) Depression and emotional state

In August 1999 the plaintiff was referred to Jennifer Wright, clinical psychologist. He saw her twice on August 4 and August 19 for "…psychological assessment and treatment of symptoms which have developed as a result of work related injuries…" In her report to Dr Hanrahan of 6 September 1999 she diagnosed the plaintiff as being "severely depressed". She also noted that other symptoms which the plaintiff described, namely severe short term memory problems, a lack of motivation and an inability to sleep, were consistent with pain and depression. Her report (exhibit 10(b) continued:
"The depression has developed since the work related injuries, his unsuccessful attempts to return to work, his concerns about his inability to earn an income, and more recently, the withdrawal of income payments by the insurance company, and his dispute with the company over this decision."

She concluded:
"I believe his depression is directly related to the physical and psychological problems he has been experiencing over the past two years as a result of his work related injuries."
It is again noteworthy that no reference is made in her report to the fact of the plaintiff having been involved in an intervening motor vehicle accident. Nor was there mention of any motor vehicle accident related injuries contributing to his depressed state. That is so, despite the fact that she was aware at the time of writing that report that he had had the accident.
Ms Wright saw the plaintiff again on 2 September, 27 October 1999 and 16 February, 28 April and 10 June 2000. Those attendances all preceded settlement of the plaintiff's common law claim in respect of the work accidents. She then next saw the plaintiff on 20 January, 28 January and 18 February 2004 for the purpose of preparing a further report for the purpose of this trial. Her report to the plaintiff's solicitors (exhibit 10(a)) is dated 8 March 2004. In that report she expressed the opinion after having reviewed her notes of the earlier attendance that "…the (motor vehicle accident) led to severe depression, and symptoms of severe anxiety, due to a change in his lifestyle and his expectations of rehabilitation." That is, Ms Wright was now attributing all the manifestations of the plaintiff's depressed state to the fact of the motor vehicle accident and its sequelae. That assertion is clearly contradictory to her earlier report. In her defence however the point has to be made that in presenting that conclusion she was solely reliant upon the history which the plaintiff and his wife had given to her preparatory to preparation of this latest report.
Defence counsel in cross‑examination sought to discredit the witness given the conflicting views expressed by her. It transpired that she had prepared an earlier report dated 11 August 1999 of which discovery had not been given (which became exhibit 10(c)). Nor did that letter make reference to any consequence of the motor vehicle accident. Ms Wright sought to explain her report of 6 September 1999 (exhibit 10(b)) as being an "advocacy letter" to be used with a view to prevailing upon the workers' compensation insurer to fund the plaintiff's ongoing psychological counselling. Her concern was that whereas the plaintiff was not able to afford her bills for ongoing counselling it was somewhat unusual that the workers' compensation insurer would not meet the payments. She did not concede that the letter was written in any way to mislead the insurer. Quite the contrary. In re‑examination when asked if she had any reason to change anything in that letter she said "At the time I wrote it I felt it was correct."
I don't accept that she deliberately or misleadingly omitted reference to the motor vehicle accident and any alleged sequelae so as to mislead the workers' compensation insurer. Rather, the letter did in fact honestly reflect her then findings based on the history given to her that the plaintiff's problems were as a consequence of his work accidents. Had the motor vehicle accident been considered to be a relevant contributing factor to the plaintiff's state of depression then it would have been her professional duty to include reference to that intervening event and no doubt she would have.
Ms Wright's explanation in trying to justify the fact that her latest report attributes all the plaintiff's psychological woes to the motor vehicle accident is based upon what the plaintiff and his wife had told her preparatory to preparing that report for the purposes of trial. Of course, the plaintiff's circumstances had changed since the consultations which preceded the first report. His dispute with AXA Insurance over loss of income entitlements had been resolved. His work accidents common law claim had been settled. The plaintiff had every reason to "sing a different tune" and attribute all of his ills and woes onto the sequelae of the motor vehicle accident. Against that background I am therefore reluctant to accept that the history given by the plaintiff most recently to Ms Wright was totally frank. The premise therefore on which Ms Wright's conclusions in her most recent report are based is therefore of doubtful validity. There was no evidence that between settlement of his common law claim and attendance in 2004 on Ms Wright for review that he sought any psychological counselling. It might reasonably be assumed that after settlement of his common law claim he could have well afforded such counselling had his claimed extremely depressed state truly warranted it.
It was Ms Wright's evidence also that on the plaintiff's initial attendances on her he provided a history describing a decade of difficult business and financial circumstances and that he had suffered depression in 1996 following his work related accidents. She was not able to say that his depression following the work related accidents had abated by the time of the motor vehicle accident in 1998.
I am not able to conclude that the claimed state of depression is solely attributable to the motor vehicle accident. Given that the accident did exacerbate the chest pain and that he has had neck and low back problems, I nevertheless do accept that those matters did contribute in a small way to his state of depression and conflict within his family. However, given the reservations previously indicated I am not accepting of his evidence that the accident was a substantial contributing factor as Ms Wright's second letter would suggest.

Findings of fact

1.Clearly, as at the date of his motor vehicle accident the plaintiff had been rendered unfit to engage in any heavy manual work in the future. That was a consequence of his sterno manubrial work accidents. He was permanently unfit for any heavy duties and unemployable in relation to any tasks involving significant lifting tasks.
2.The motor vehicle accident was causative of –
(a)exacerbation of the chest pain associated with the work accidents;
(b)a soft tissue musculo ligamentous cervical sprain, ie, whiplash injury;
(c)a jarring type injury to the lumbar spine; and
(d)a combination of muscle contraction headaches and right sided cervicogenic headaches related to the right C2/3 facet joint as a consequence of the cervical injury the plaintiff has suffered.

3.The motor vehicle related injuries and the pain and discomfort associated therewith contributed to the plaintiff's depression and emotional state. However, his depression was pre‑existing as a consequence of his work accidents. The pain and severe permanent disability involving the sterno manubrial joint, his failure in re‑training to work in any other capacity, his frustration and loss of esteem as a result thereof were causative in my finding substantially of his depression and emotional state. That was exacerbated by the worry and frustration associated with financial issues related to his dispute with the insurer in respect of his loss of income insurance. Furthermore, the fact that he did not continue psychological counselling after settlement of his common law claim is suggestive that the depression was not such as warranted ongoing treatment and had substantially resolved. Nevertheless, it would be unrealistic to conclude that the accident had not at least to some small extent contributed to his worries.
4.Aggravation for a time of the chest wall pain associated with the work accidents. There is no evidence that there was any further physical injury to the sterno manubrial joint. The increased chest wall pain did necessitate morphine preparations being prescribed to reduce the pain associated with that exacerbation. It is possible also that the medication masked to some extent pain associated with the cervical and lumbar injuries.
5.That at the date of the motor vehicle accident the plaintiff was incapacitated for any type of work as a consequence of the work accidents. That is, by reason of his work accidents he was left with no residual capacity for any work activity. The work accidents precluded the plaintiff from doing his previous manual type work activities. Re‑training into light work activities had been attempted but it had been concluded that he was unsuitable to re‑train into other areas.

General damages for loss of amenities

The plaintiff is entitled to general damages for the accident itself and for the consequent pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm.
The award of damages for loss of enjoyment of life and amenities generally requires a consideration of s 3C of the Motor Vehicle (Third Party Insurance) Amendment Act 1994 ("the Act"). This section imposes limitations upon an award of damages for non-pecuniary loss and it applies to the present case. Section 3C(3) provides that the maximum amount of damages that may be awarded for non-pecuniary loss is, at the present time, $257,000 and that that amount may be awarded "only in a most extreme case".
In Wylde v 'Arriaza, unreported FCt SCt of WA; Library No 970359; 23 July 1997 the court adopted the same approach to the Act as the New South Wales Court of Appeal did to the Motor Accidents Act 1988 (NSW). In Southgate v Waterford (1990) 21 NSWLR 427 at 440 the court said:
"There are a number of ways by which trial Judges could approach the task of apportionment required by s 79(2) and s 79(3). It is inappropriate in this case for this court to mandate any particular way of arriving at the 'proportion' required by s 79(2). But clearly because the task in hand is that of awarding damages for 'non-economic loss' it is appropriate for the trial Judge to consider and make findings on those elements in the evidence which are relevant to such loss. This will require the Judge to consider and make findings on the evidence relevant to those heads of damage formally considered in the award of general damages. Then it is necessary for the Judge to conceive 'a most extreme case'. Only for such a case may the maximum amount provided by s 79(3) be awarded. The use of the indefinite article 'a' has already been noted. Opinions of what constituted 'a most extreme case' will doubtless vary. But clearly quadriplegia would fall into that class. The amount to be awarded must then be apportioned somewhere between nil and $180,000; but in a ratio which the Judge fixes keeping in mind that the cap of a statutory maximum is retained for a 'most extreme case'."
The task is to find the right proportion between a most extreme case and the present. As to what might constitute a most extreme case see also Murray J in Hendrie v Rusli [2000] WASCA 249.
Having regard to my findings and to the evidence generally I find that the plaintiff's injuries and symptoms, their progression and treatment, their current status and the effect that they have had and will have on the plaintiff's enjoyment of life puts the plaintiff's case at 20 per cent of a most extreme case. That percentage of the maximum amount that may be awarded of $257,000 equates to $51,400.
Accordingly general damages will be allowed in the sum of $51,400.

Past loss and future loss of earning capacity

Consistent with my earlier findings I conclude that the work accidents did eliminate the plaintiff's capacity to undertake any work. By reason of his work accidents he had at the date of the motor vehicle accident no retained earning capacity. Accordingly no award will be made in respect of either his past loss or for future loss of earning capacity.

Past gratuitous and future services

It was the evidence of both the plaintiff and his wife that he now does less around the family home than he was able to do prior to his injuries. It has to be accepted that he did have some degree of limitation following his work related injury. When I have regard to the medical evidence there should be little that the plaintiff is unable to do around the home as a result of his motor vehicle accident injuries. He was precluded from heavy work, eg garden digging, lifting or moving heavy items or activities such as painting walls or undertaking renovations by reason of his work injury. Beyond that I do not accept that usual domestic duties are beyond the plaintiff. It may well be that it takes him longer to do certain activities, but then it is not suggested that he does not have the time to complete those activities.
It would not be unreasonable however to make a global allowance for past gratuitous services, particularly for the period which immediately followed the accident. Nor do I trivialise the contribution which his wife has been called upon to make as a consequence of the plaintiff perhaps not being able to assist to the full extent that he might otherwise have been able to do so in the past.
I will allow the sum of $5,100 for both past gratuitous services and future services.

Special damages

A schedule of special damages agreed by the defendant as to quantum but not as to need within the framework of the plaintiff's claim was tendered post trial. Consistent with my finding that the plaintiff did suffer injury in the accident I accept that some expense will inevitably have been incurred as a consequence. The difficulty however in simply being presented with a schedule in the circumstances of this case is that I am not to know if the expenses are solely related to the accident related injuries or whether there may be some component flowing on from the work accidents. Bearing that in mind I make the following observations on the items claimed:
Travel – the amount claimed does not seem unreasonable when regard is had to the number of medical appointments over the years. The sum of $750 will be allowed.
Pharmaceuticals – presumably, what is claimed is the cost of pharmaceuticals from the date of the accident to trial which are referable only to the accident related injuries and not referable to the work accident injury. If that is the case then clearly that must impact upon the claim for future medication. That is, the claimed amount of $1,036.40 over five years equates approximately to $200 per year. That is to be compared with the amount of $1,003.60 per annum claimed for future medication. On the information before me I am unable to resolve the discrepancy. Unless agreement can be reached between the parties I will invite submissions on past and future costs of medication.
Unpaid medical accounts
Dr Maguire – to the extent that the amount claimed is unrelated to the work accidents the claim will be allowed. If it relates to the costs of providing reports in respect to this claim I would not take issue.
Ms J Wright – Only to the extent that her accounts were incurred after settlement of the plaintiff's common law claim would I allow this item. Anything prior to that settlement in my view is solely referable to the common law claim.
Dr H B Hamzah – I would allow his accounts which presumably are referable to treatment to the plaintiff's lumbar spine.
Dr B J O'Mahoney and Dr J P Steinberg – there are no medical reports or other evidence before the Court as to when or what services were provided. Without more the amounts claimed cannot be allowed.

Future medication, consultations and treatment

I reiterate the comments made under the last sub‑heading so far as the cost of future medication is concerned. Clearly, clarification is required before any certain amount can be quantified.
I accept that from time to time the plaintiff will be required to attend on his general practitioner for review and scripts for medications. Four visits per annum should be adequate. I am not convinced that ongoing specialist visits will be necessitated. The consensus of medical evidence is that so long as there is only occasional pain whether it be headaches or in the cervical or lumbar areas that can be addressed with appropriate medication. Likewise, with advances in medical science there may be new procedures developed which may assist the plaintiff if his claimed symptoms persist. However, it would be embarking into the arena of speculation to conclude either that the symptoms will be continuing or that a miracle cure might be found.
If I were to adopt a global figure for future medication, consultations and treatment I would, on the information before me, consider that a global allowance of $4,000 would be generous.

Summary

In summary therefore, damages will be allowed as follows:
General damages  $51.400
Past gratuitous and future services  $ 5,100
Special damages   submissions invited if agreement cannot be reached.
Future medication, consultations
and treatment   submissions invited if agreement cannot be reached.