Rachel Nicole Gibson v Steinhoff Asia Pacific Limited (formerly Freedom Group Limited) - [2012] ACTSC 139

RACHEL NICOLE GIBSON v STEINHOFF ASIA PACIFIC LIMITED (formerly FREEDOM GROUP LIMITED)
[2012] ACTSC 139 (31 August 2012)

NEGLIGENCE – personal injury – assessment as to damages where liability has been admitted by the defendant

Griffiths v Kerkemeyer (1977) 139 CLR 161

No. SC 387 of 2002

Judge: Burns J
Supreme Court of the ACT

Date: 31 August 2012

IN THE SUPREME COURT OF THE     )
  )          No. SC 387 of 2002
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: RACHEL NICOLE GIBSON
Plaintiff
AND:STEINHOFF ASIA PACIFIC LIMITED (formerly FREEDOM GROUP LIMITED)
ACN 051 493 764

Defendant

ORDER

Judge:  Burns J
Date:  31 August 2012
Place:  Canberra

THE COURT ORDERS THAT:

Judgment be entered for the plaintiff in the sum of $1,314,881.75.

On 20 March 1999 the plaintiff, Rachel Nicole Towill (formerly Gibson) was injured while lifting a carton of crockery out of a trolley. This injury was sustained in the course of her employment with the defendant. The trolley was so designed that the plaintiff was required to bend from the waist, with her legs straight, in order to pick up the carton. The carton had no handholds, so she was obliged to grip it by applying pressure to the sides of the carton with the palms of her hands as she lifted. In the course of this manoeuvre she sustained an injury to her lower back.

The defendant admits liability for the plaintiff’s injury, but disputes the extent of those injuries, and the extent of any disabilities consequent upon her injuries.

The plaintiff is currently 38 years old. She was born and educated to college level in the ACT. After finishing college she did some part-time work at a pharmacy before she commenced tertiary education. In August 1995 she commenced work for the defendant, then called Freedom Group Ltd, at Freedom Furniture in Fyshwick, as a home wares assistant, serving customers and unpacking stock onto the floor. In 1996 she also commenced work as an interior designer drafting plans of shop fit-outs for ACT Shop Fitters, whilst also maintaining her employment with the defendant.

On 4 July 1997 she developed central low back pain while lifting a box in the course of her employment with the defendant. She reported the incident to her employer. The pain settled overnight after she took some Panadol. She did not seek any medical advice or other treatment following this incident.

On 26 August 1998 the plaintiff was involved in setting up a display at the Canberra Institute of Technology as part of her Associate Diploma in Interior Design. A display panel approximately 900 millimetres wide and 1,800 millimetres tall began to fall. The plaintiff went to grab it, bending and catching it some 400 millimetres off the ground. She felt a pain in her lower back, similar to the pain she felt after the incident in July 1997. Her parents gave her anti-inflamatories and encouraged her to see her general practitioner, Dr Bradfield, which she did the following day. She does not recall the pain lasting longer than a day.

The relevant injury for these proceedings occurred on 20 March 1999. As the plaintiff was lifting a carton of crockery in the manner already described she felt a sharp pain in her lower back when the carton was about 200 to 300 millimetres off the tray of the trolley. She dropped the carton back into the trolley. She felt pain down both legs and immediately straightened up. She testified that the pain on this occasion was different to that which she experienced in July 1997 and August 1998 in that it was located lower in her back and involved the projection of pain down her legs. She described the pain projecting into her legs as like “an electric shock”, radiating down the back of her legs and into her calves. That pain only lasted a moment, and when she straightened up the pain was just in her right thigh.

The plaintiff attempted to walk but found she was not able to take normal strides with her legs. She “shuffled” to the home wares counter and reported the incident to the home wares manager. She then completed an incident report. Her manager asked her to keep working because they were short staffed, which she did. However, she continued to experience pain and difficulty in moving. After work she drove home and told her parents of the incident. They provided her with Orudis, an anti-inflammatory.

The next day she was still in pain, and rested most of the day. She consulted a chiropractor at Glebe Park Chiropractics over a number of days but found it made little difference. On 29 March 1999 she saw a general practitioner, Dr Bradfield. At that time she was still suffering pain radiating into her right leg. She was having trouble sitting, standing and bending. He gave her a medical certificate with certain restrictions. She subsequently saw another general practitioner, Dr Susan Davey, in mid 1999. She was still in pain, which was aggravated by rolling over in bed or getting in or out of her car. Dr Davey referred her to a physiotherapist, Meeta Ladd. The plaintiff commenced physiotherapy on 21 July 1999, which provided her with some relief. She found the treatment allowed her to move more freely, but she still had low back pain. This relief would typically last for 12 to 24 hours. The plaintiff returned to work on restricted duties. From late 1999 onwards, the plaintiff has intermittently worn a back brace. She would wear it daily in winter, and two or three times a week in warmer weather. She also uses a lumbar roll for support about 70 per cent of the time when she is driving.

In August or September 1999 her parents bought a townhouse in Holt in the Australian Capital Territory for her to live in. From March 1999 to August/September 1999 the plaintiff’s mother had to undertake duties around the house which the plaintiff would ordinarily have undertaken. The plaintiff estimated this at two hours per week. This contributed to a decline in the plaintiff’s relationship with her mother. At the Holt residence the plaintiff had to rely on her father and her then partner, Andrew Graham, helping with household chores and gardening. Between them they did about two hours per week.

On 11 February 2000 the plaintiff was involved in another incident involving her back. At that time she was still suffering the effects of the injury of 20 March 1999. On 11 February 2000, again in the course of her employment with the defendant, she was moving pre-packaged Venetian blinds by bending, picking them up, twisting and putting them down. The blinds were on a platform 150 millimetres off the ground. The plaintiff bent her knees in order to lift the blinds. When she was twisting from her left to her right, she felt a sharp pain in her lower back in the same area as she had felt pain on 20 March 1999. The pain was not as sharp or shocking as it had been on 20 March 1999. The plaintiff consulted an after hours medical service, and then returned to see Dr Davey on 17 February 2000. On this occasion there was no radiation of pain into her legs. She was prescribed Celebrex, an anti-inflammatory medication, and referred back to Ms Ladd for physiotherapy. She attended physiotherapy sessions on 18 February 2000, 21 February 2000, 25 February 2000 and 7 March 2000 before the workers’ compensation insurer ceased paying for medical expenses. The plaintiff subsequently saw Ms Ladd on 18 May 2000 and 30 July 2000.

On 11 August 2000 the plaintiff was involved in another incident involving her lower back whilst working for the defendant. She was lifting a chair which weighed “a couple of kilos” when she felt pain in her lower back. The pain was in the same position as 20 March 1999, but was not as intense and did not involve radiation into her legs. She returned to see Dr Davey, who referred her for further physiotherapy.

After the plaintiff’s first two incidents involving her back in 1997 and 1998 she went on a holiday to Fiji with three friends, leaving Australia on 18 September 1998 and returning on 9 October 1998. She played golf and walked frequently. She also rode in the back of a utility vehicle over bumpy roads. She experienced no problems with her back. Prior to her back injury in March 1999 the plaintiff played social tennis, rode a bike and enjoyed both jogging and running long distances, and had no problems with her back.

Throughout 2000 the plaintiff continued to be treated by Dr Davey and Ms Ladd, however her pain continued. In October 2000 she again consulted Dr Davey regarding back pain, and Dr Davey noted she was depressed because of her chronic pain and the impact it was having on her lifestyle. She was prescribed anti-depressants, but ceased taking them because of their side effects. At that time Dr Davey also told her that she (Dr Davey) did not think the plaintiff would ever be fit for employment involving heavy lifting, prolonged sitting or standing or repeated bending and that she may eventually require surgery. The plaintiff was shocked by the proposition that she may require surgery and determined to do as much as possible to avoid that outcome.

In May 2002 the plaintiff suffered an aggravation of her back injury while lifting pot plants. This appears to have been a minor incident with no continuing effects. In November 2002 she underwent surgery to treat gastric reflux.

The plaintiff commenced her own interior design/decoration business in 2001 whilst she was still employed by the defendant. Initially she spent only five or six hours a month on this business. In April 2003 she ceased employment with the defendant and commenced her first graduate architecture job with a firm called Urban Design. Her duties were primarily desk based, working on a computer for eight or nine hours per day. By the end of two weeks work she was experiencing a lot of pain in her low back. She found it necessary to take frequent breaks to move around and exercise. By the third week the pain was radiating down her legs. She was also experiencing paresthesia in her thighs.

By this time the plaintiff’s former general practitioner, Dr Davey, had left Australia, and the plaintiff consulted Dr Thew. In May 2003 and June 2003 she continued to undergo physiotherapy, and consulted Dr Thew on a number of occasions. He referred her for an MRI. An MRI taken on 17 June 2003 revealed disc space narrowing and desiccation in association with a small broad-based posterior disc bulge at the L5/S1 level. At the L4/5 level a small posterior and left posterolateral disc bulge was present. It was also noted that there were early degenerative changes within the facet joints and there was minor lower lumbar spondylonsis with no evidence of neural compromise.

The plaintiff reduced her working hours at Urban Design to five hours per day, and then later to three hours per day. In July 2003 she resigned from Urban Design due to the amount of sitting required.

On 31 July 2003 the plaintiff graduated from the University of Canberra with a Bachelor of Architecture. On 24 November 2003 she commenced work with a firm of architects called Collard Clarke Jackson (CCJ) on an annual salary of $35,000.00. Throughout the remaineder of 2003 and 2004 the plaintiff continued to undergo physiotherapy and to consult Dr Thew. In a medical report dated 10 June 2004 Dr Thew stated:

It is likely that Rachel shall continue to experience pain and relapse in her lumbar spine problem, which could well deteriorate over time...She may require surgery long term and certainly will need long term pain management and physiotherapy with rehabilitation.

On 22 September 2004 the plaintiff’s pay was increased to $40,000.00 per year. Despite the difficulties her injuries presented (to which I will return) the plaintiff continued to work and in December 2005 her salary was increased to $47,000.00 per year.

At the suggestion of her father the plaintiff kept a diary of her symptoms commencing early 2003. The entries for 2004 reveal that she suffered from persistent, if not constant, pain affecting her work, her domestic affairs and her social life. This pattern continued into and throughout 2005 and 2006. As a consequence of the pain, and its effect on her life, the plaintiff became depressed and moody. In February 2007 the plaintiff’s salary was increased to $52,000.00 per year plus superannuation. The same month the plaintiff decided to proceed to surgery in the light of her ongoing pain.

Initially she was referred to Dr Pik. On 7 May 2007 she underwent a lumbar discogram which revealed loss of disc height at L5/S1, where the disc was degenerate with posterior annulus tears. A CT of her lumbar spine the same day showed a degenerate disc at L5/S1 with discogenic pain at that level corresponding with the plaintiff’s usual pain in location and character. On the basis of this information Dr Pik considered the L5/S1 disc was the source of the plaintiff’s pain. Dr Pik was prepared to offer the plaintiff an interbody fusion at L5/S1, but not an artificial lumbar disc because of the risk of disc failure.

The plaintiff then consulted Dr Diwan, and on 9 October 2007 he performed an anterior decompression and total disc replacement at St George Hospital. Initially the plaintiff’s condition improved post surgery. On 24 October 2007 she saw her general practitioner, Dr Mya, and reported that most of her back pain was gone. On 28 November 2007 she was reviewed by Dr Diwan who noted that her back had improved, with some pain on sitting and walking.

After surgery the plaintiff took annual leave and sick leave. She returned to work on 12 November 2007, working three hours per day. She ceased working for CCJ on 3 January 2008 and moved to Queensland with her partner for his job. She commenced a new job with Core Architecture on a salary of $100,000.00 a year plus superannuation.

Despite the initial improvement after surgery, the plaintiff’s back continued to trouble her. When she returned to work on 12 November 2007 her pain levels increased. The pain continued to affect her sex life as well as her ability to work full time. The plaintiff was only able to maintain her employment at Core Architecture until June or July of 2008, when she left due to increasing pain.

As time went on after the surgery the plaintiff’s pain increased and it became clear to her that the surgery was not going to be successful in alleviating her pain. She continued to take strong painkillers and started experiencing panic attacks. Her family and social life were seriously affected by her pain and disability.

In June 2008 the plaintiff commenced part-time lecturing at the Queensland University of Technology. In July 2008 she commenced employment with Hassell Architects on a salary of $100,000.00 per year plus superannuation. Her work hours at Hassell Architects were supposed to be 8.30 am to 5.00 pm. The plaintiff’s ability to work these hours was compromised by her pain, as set out in her diary note of 21 October 2008:

21 October. Where do I begin? How my life has turned upside down. I am battling constant anxiety and panic on a daily basis dealing with this pain. The constant guilt I feel about not being able to perform my job. I am currently only working five hours per day, often less, or a whole day off due to pain. I feel worthless and disappointed. I have tried so hard to keep up with my job, but I end up in tears at my desk so many times this morning. I can’t believe I am back here again dealing with this pain. I feel sick in my stomach with worry about the future and try so hard not to think of the worst. I am trying to work less, but I want to make sure the project I am working on is handed over to someone else properly. I really hate putting my job before my health, but it is also my reputation if I leave things in a mess. I have only been working for this employer for under three months. My psychiatrist recommended that I take anti-depressants to help through this period, and what – and for what I have been experiencing. I feel such sadness, like loss, a huge disappointment. I just can’t do this again, live with this pain. I feel like my relationship can’t do this again. I feel sick and I can’t keep writing.

The plaintiff’s diary entries for 2009 reveal continuing problems including:

· back pain aggravated by work;

· back pain aggravated by sitting for moderate periods in a car or plane;

· inability to engage in recreational activity due to back pain and instability; and

· tiredness resulting from medication for back pain.

In November 2008 Dr Diwan performed a nerve block by injection at the C5 level. This did not provide lasting relief. On 2 February 2009 she had a CT-guided facet joint injection which provided no lasting relief. On 24 August 2010 she had a CT-guided left L5/S1 facet joint injection which also did not provide lasting relief. On 23 September 2011 she underwent CT-guided left L4/5 and L5/S1 facet joint injections and a left L5 perineural injection. This procedure reduced the “grabbing” pain the plaintiff had been experiencing but did not alleviate her left leg pain.

At Hassell Architects she was in charge of 10 people. Unfortunately she was unable to cope with the demands of that job due to her ongoing pain and disability, and Dr Mya told her to reduce her hours. The plaintiff resigned from Hassell Architects in October 2009.

In November 2009 the plaintiff commenced working for herself as an architect. She continues in that employment, and employs one full time staff member on $65,000.00 per year plus superannuation. She also has a work experience student working two days per week. She has undertaken work for a local school and for the Commonwealth Government (refurbishing a senator’s office). The nature of her disability, and its restrictions on her ability to work long hours, means that the plaintiff is restricted in the type of architectural projects that she can undertake. Her biggest client to date has been the local school, but that project is almost completed, if it has not already been completed by the time this judgment is published. She has no projects going forward into the 2012-2013 financial year, but has some hopes of getting more work from the Commonwealth Government. The plaintiff currently works only three days per week and is restricted to three to five hours per day. She also works part time as a lecturer at Queensland University of Technology. Her employee does 60 to 70 per cent of the work of the business, but does not bring in any clients. It is likely that the plaintiff may have to reduce her employee’s hours, or let her go altogether, if new work does not eventuate.

Since the March 1999 injury the plaintiff has earned the following amounts annually:

Year Earning

1998-1999 $20,305.00

1999-2000 $15,814.00

2000-2001 $24,284.00
(including $6,410.00 in Austudy payments)

2001-2002 $20,477.00

2002-2003 $18,359.00

2003-2004 $21,363.00

2004-2005 $33,336.00
(including tax loss from rental property. Earns as architect $39,701.00)

2005-2006 $32,751.00
(including tax loss from rental property. Earns as architect $46,600.00)

2006-2007 $46,484.00

2007-2008 $74,307.00
as architect

2008-2009 $78,516.00
as architect

2009-2010 $77,990.00
as architect

2010-2011 $94,000
as architect

For the year ending 30 June 2012 it was anticipated that the plaintiff’s earnings would be $70,000.00 to $80,000.00.

Evidence of the plaintiff’s earning capacity but for the injury sustained in March 1999 comes from Bruce Allan Fisher, a director of CCJ, which employed the plaintiff from November 2003 until January 2008. Mr Fisher has been a director of CCJ for 17 years, and a director of various architect firms for a total of 30 years. During that time he has had constant responsibility for assessing young architects and making decisions about what duties they would perform, whether they would be promoted, and whether they would be invited to become a director of the firm. As such, I am satisfied that he is eminently qualified to give an opinion on the plaintiff’s abilities as an architect, and the potential that she displayed.

In a letter dated 11 January 2011 Mr Fisher stated:

· the plaintiff was gradually gaining more responsibility and independence in her time as CCJ, to a point where she was completely in charge of projects with minimal oversight by a director;

· she was approached directly by established clients of the firm with new projects;

· she demonstrated the qualities necessary to manage all aspects of an architectural practice, from the client’s initial briefing, to the design, documentation and constant management of a project;

· she was able to organise the staff within the office, as well as consultants required on a project, and to talk to clients, contractors and trades people;

· she received regular increases in remuneration from $35,000.00 to $52,000.00 per year, reflecting her increasing responsibility within the firm as well as recognition of her growing experience and respect by the Directors;

· if the plaintiff had stayed with CCJ she would have been made an associate and a director upon Mr Fisher’s retirement within the next two years; and

· as a director she would have earned $100,000.00 per year, with annual bonuses of about $30,000.00 per year.

In his evidence Mr Fisher expanded on his knowledge of the plaintiff and her abilities as an architect. He said that in her time at CCJ she had gained experience in every field of architecture and she had responsibility for projects, or stages of projects, valued in millions of dollars. If she had become an associate her salary would have been $70,000.00 to $80,000.00 per year plus superannuation. She would also have had the opportunity as an associate to purchase shares in the firm, entitling her to a dividend.

It was obvious to Mr Fisher that the plaintiff was in pain during the time she worked at CCJ. The firm bought special furniture for the plaintiff in the hope that it would alleviate her pain, but her condition worsened during the time she was with them. The plaintiff used most of her sick leave during the period she was employed by CCJ. The plaintiff’s hours in the office became less and less, and she would regularly come in to the office on weekends to try to make up the time.

Mr Fisher said he would not now employ the plaintiff because he understood she could only work three to five hours per day, which is not long enough for a senior member of the firm.

Further evidence of the plaintiff’s potential earning capacity as an architect was given by David Cook, a director of a Sydney firm of architects. He met with the plaintiff “a couple of times” and expressed the view that “she demonstrated skills, abilities and experience that would introduce her to our practice at the level of a senior associate”. Senior associates were paid from $80,000.00 to $110,000.00 per year. Partners in the firm received $150,000.00 to $190,000.00 per year.

The plaintiff’s partner, Otis Towill, gave evidence. He is a general manager for a commercial construction company, and has a degree in construction management and economics. He has been involved in the building industry for 15 years.

Mr Towill first met the plaintiff in October 2004. He subsequently became aware that she had back problems. He noted that the plaintiff could not walk very far at that time without becoming sore. She would also ask him to move things for her, like chairs and tables. The plaintiff explained her condition by reference to an incident on 30 March 1999.

Mr Towill was aware that the plaintiff had considerable back problems prior to surgery. After surgery, he felt that there was some initial improvement, but she is now probably similar to how she was a year or two prior to surgery. He was aware that the plaintiff presently worked only three to four hours per day.

The plaintiff has tried to undertake sporting activities with Mr Towill. Mr Towill is keen on motorcycle riding, but the plaintiff is not able to join him in that activity. She has also attempted to play tennis on one occasion. She is not able to go jogging with him. There have been problems with their sex life because of her back injury. Mr Towill has noted a lack of libido on the part of the plaintiff because of her back.

Mr Towill also testified that he has undertaken a range of domestic duties that the plaintiff would have undertaken but for her back injury. He is obliged to do anything involving lifting, pushing, pulling, vacuuming, or bending down, such as packing and unpacking the dishwasher, putting washing in or taking washing out of the washing machine. He is also obliged to dig holes in the garden where the plaintiff wants plants. He also trims the plants and mows the lawn. He is also responsible for maintenance of their pool. He goes shopping with the plaintiff, which he would not do if it were not for her back problems. He would also not undertake gardening activities were it not for the plaintiff’s back problems. He estimates that he undertakes about five hours per week of domestic duties which would ordinarily be undertaken by the plaintiff except for the back problems.

Mr Towill was aware of the plaintiff having problems as a passenger in cars. Sitting upright causes her pain, so in the car she will usually recline the seat right back and then she rolls around from side to side depending on where the pain is. When they have to travel long distance, they fly. However she also has problems remaining seated when flying, and whenever possible they travel business class to give her more room.

Emma Grace Sokolwski also gave evidence on behalf of the plaintiff. She is an interior designer who met the plaintiff during the course of undertaking an Associate Diploma in Interior Design at the Canberra Institute of Technology. She and the plaintiff became close friends. In 1998 she, together with the plaintiff and a number of other friends, travelled to Fiji for a holiday. During that time they went swimming, walking, played golf, and carried out other vigorous activities. The plaintiff never complained of any problems with her back at any time during that holiday.

Andrew William Graham, a former boyfriend of the plaintiff, was also called to give evidence. He was aware that in 1997 the plaintiff had hurt her back, but he did not know much about the details of that incident. The plaintiff did not complain to him about her back in 1997. He was also aware of the incident at the Canberra Institute of Technology in 1998. He testified that as far as he was aware, the plaintiff did not have any problems with her back shortly after that incident. As far as he was aware, between September 1998 and March 1999 the plaintiff did not have any problems with her back.

In 1997 Mr Graham was 27 years old, and the plaintiff was 24 years old. They commenced having a sexual relationship in early 1997. He testified that they had what he described as an ordinary, vigorous sexual relationship. He said that after the incident on 20 March 1999 they stopped doing things they used to enjoy doing together. Sex became almost non-existent. Simple things in life like going to dinner, going for walks and going to see their families and friends just stopped because of the pain the plaintiff was suffering. He testified that the plaintiff became angry as a result of the pain that she was suffering and the effect it had on her lifestyle. Their relationship ended in 2004. From March 1999 until they broke up in 2004, he never saw the plaintiff pain-free.

A further witness, Rebecca Jane Luongo, also gave evidence on behalf of the plaintiff. She is the plaintiff’s older sister. She recalls the plaintiff and their father spending a lot of time in the garden, which was one of the plaintiff’s special interests. Ms Luongo has three children, born between 1995 and 2005. She cannot recollect the plaintiff hurting her back in 1997, nor in 1998. She was aware that the plaintiff hurt her back in March 1999 whilst working for the defendant. Not long after that occurred, she was able to recall an incident where the plaintiff had trouble lifting Ms Luongo’s children out of the bath. As far as Ms Luongo is aware, the plaintiff has not been pain-free since March 1999. She said that the plaintiff is now grumpier and more stressed than she was prior to March 1999.

The plaintiff’s medical evidence

A number of medical reports were tendered on behalf of the plaintiff. A report dated 23 October 2000 from Dr Suzanne Davey directed to HIH Insurance noted that the plaintiff presented to Dr Davey on 16 July 1999 with a history of an injury to her back when lifting a box of dinner sets on 20 March 1999. Dr Davey noted that initially the pain radiated from her back down her right leg. That pain lasted for approximately eight weeks. When Dr Davey saw the plaintiff it was some four months after the accident and she had persisting back pain when she rolled over in bed, bent over, or got out of a car. The plaintiff had apparently aggravated her back at work on 11 February 2000, and again 14 August 2000. Dr Davey noted that the plaintiff had a CT scan of her lumbar spine on 29 March 1999, revealing a small central posterior disc bulge at L5/S1 level, slightly encroaching the right neural foramen at L5 and possibly irritating the exiting right nerve root. When she reviewed the plaintiff on 20 September 1999 and on 11 October 2000 she believed the plaintiff was depressed, in part because she was suffering from chronic pain and also because of the impact her injury had on her lifestyle. On 11 October 2000 Dr Davey instituted treatment with anti-depressants. Dr Davey’s diagnosis was prolapsed L5/S1 intervertebral disc causing right sided sciatica. She considered her prognosis to be guarded. She thought that the plaintiff may eventually require surgery. She did not consider the plaintiff would ever be fit for a job involving heavy lifting, prolonged sitting or standing, or repeated bending.

A report dated 10 September 2001 was provided by Dr John Fuller, a neurosurgeon. Dr Fuller noted the history of an injury in March 1997 where the plaintiff developed central lower back pain after lifting a heavy box at work. He noted that the episode settled overnight and she had no further episodes until approximately one year later. He stated that “at this time” she had an episode of central low back pain which radiated to both posterior thighs and by the next day this had settled into the right posterior thigh only. Dr Fuller noted that over the course of the ensuing week with rest and medication her symptoms settled. He further noted that in March 1999 the plaintiff received the injury relevant to these proceedings resulting in lower back pain. The pain radiated to the posterior thigh regions bilaterally. From that time on she had ongoing stiffness and lower back pain. His examination of the plaintiff’s lumbosacral spine revealed tenderness over the lumbosacral junction. There was a decreased range of movement in all directions due to lower back pain. Power in the lower limbs was within normal limits. Her lower limb reflexes were symmetrical. There was diminished pinprick sensation over the posterior aspect of the right calf.

Dr Fuller noted that a CT scan of the lumbosacral spine was performed on 29 March 1999 which demonstrated a central disc herniation at the L5/S1 level. This abutted the S1 nerve roots bilaterally.

Dr Fuller suggested an ongoing exercise program to maintain the strength and flexibility of the plaintiff’s lumbosacral spine as the best treatment. In the absence of nerve root compression he did not recommend surgical intervention. His diagnosis was of a L5/S1 disc herniation. He believed that this was related to the accident in March 1999. With respect to the earlier injuries, he believed that she may have had some degree of disc bulge at that time which was aggravated by the injury in March 1999.

The plaintiff was cross-examined about the reference in Dr Fuller’s report to her giving a history of pain radiating into her legs in the August 1998 incident. The plaintiff did not accept that she told Dr Fuller that, and said that her recollection was that the pain radiation occurred in the March 1999 incident. I accept the plaintiff’s evidence in this regard, as it is consistent with the history recorded by Dr Davey on 26 August 1998, as shown in her notes. Similarly, I found the notes of the chiropractor who saw the plaintiff shortly after the March 1999 incident of little assistance. They are at best cryptic, and at times verge on chaotic.

A report dated 8 December 2003 from Dr G David Champion from St Vincent’s Clinic in New South Wales was tendered on behalf of the plaintiff. Dr Champion is a consultant physician and a Fellow of the Faculty of Pain Medicine at the Australian and New Zealand College of Anaesthetists. Dr Champion examined the plaintiff on 1 December 2003 and noted that she had a history of low back disorders. He noted a report of an injury in July 1997 where the plaintiff suffered a sharp pain in her low back whilst lifting a heavy box at work. Her pain settled reasonably well overnight and she was not able to recall any pain in her back beyond a few days. She did not seek any medical or other attention at that time. Dr Champion also noted the incident on 26 August 1998 at the Canberra Institute of Technology. The plaintiff described to him feeling a sharp pain in her low back, similar to the previous episode in July 1997. She saw her general practitioner and was advised to rest and take analgesia. Her symptoms rapidly resolved.

Dr Champion noted the history of the accident on 20 March 1999. The plaintiff described the pain that she felt in her lower back on that occasion as different from the previous episodes of pain not only in severity, but also there was referred pain through her buttocks and down the backs of her thighs to the upper calves. She could not walk with a normal stride, needing to take short paces. The following day she saw her general practitioner who requested a CT scan of her lumbar spine. Dr Champion noted that the scan showed a small central posterior disc herniation at L5/S1 resulting in slight deformity of the theca and also effacing the perineural fat around the S1 nerves root. There was also slight encroachment of the right neural foramen by the disc herniation with potential to irritate the exiting right L5 nerve root. Additionally, there was slight annular bulging of the L3/4 and L4/5 discs. Dr Champion expressed the opinion that he would not have referred to the posterior disc protrusion or herniation as “small”, as it was quite a significant abnormality.

Dr Champion noted the history of treatment after the accident, and the history of aggravation of pain and disability consequent upon everyday activities. He also noted the MRI of the lumbar spine on 17 June 2003 which revealed the L5/S1 disc was abnormal with degenerative changes including features of desiccation, reduced height particularly posteriorly and posterior disc bulge. Dr Champion stated that although one cannot readily compare CT findings with MRI observations, it seemed likely that between March 1999 and June 2003 there was a reduction of the L5/S1 disc protrusion.

On examination, Dr Champion noted that there was focal ache in the midline and a little to the left at the L5/S1 level. Lumbar flexion was mildly to moderately limited and associated with increased low back pain. Lumbar extension seemed somewhat fuller but caused some low back pain. The plaintiff was slightly weaker on her left side. Tendon reflexes were normal. Cutaneous sensory testing was mildly reduced in the left lower leg posterolaterally extended to the lateral aspect of the left foot. Straight leg raising was limited bilaterally with pain along the lower limbs in usual distribution at about 70 degrees, a little more painful at first on the left side. When lying prone, cutaneous sensation was slightly reduced in the typical pain region, a physical sign supportive of her claim of ongoing pain. She was tender to pressure not only at L5/S1 but also at L4/5 and at L3/4. In the soft tissues adjacent to the L5/S1 site there was tissue tenderness consistent with deep secondary allodynia.

Dr Champion considered that there may have been very minor pre-disposition to low back disorder prior to the plaintiff’s injury on 20 March 1999. He noted that minor osteospondylosis by itself does not confer a significant risk of acquiring major chronic pain-related disorder according to epidemiological studies.

It was Dr Champion’s opinion that the plaintiff’s accident of March 1999 was a new and important development. The pain intensity that she reported at that time put her at risk of long lasting pain. The injury as described would be sufficient to account for all or most of the observed pathology and for the subsequent clinical syndrome. The subsequent minor injuries to her back probably would not have provoked any significant back disorder, or particularly not sustained back disorder, had not she already had injury and pathology. The clinical syndrome as assessed by Dr Champion was a chronic multi segmental lumbar spinal pain syndrome probably mainly at L5/S1 with deep somatic referred pain, cutaneous hypoaesthesiae and deep secondary allodynia in the pain region, and indications of radicular pain with left sided minor S1 radiculopathy.

Dr Champion noted that the MRI of the lumbar spine on 17 June 2003 did not show multi segmental disc degeneration. The MRI revealed degenerative change almost completely confined to the L5/S1 level and as such was very likely mechanically provoked and relating particularly to the injury of March 1999. He thought that most if not all of the pathology had been the consequence of the lifting injury in March 1999.

A particular difficulty relevant to the plaintiff’s work as an architect identified by Dr Champion was the problem of pain provoked by sustained sitting when using a computer. He suggested that the plaintiff may be able to reduce the pain to some extent by sitting on a cushion with her thighs sloping downwards. He noted that she had just commenced employment with a new employer, where the atmosphere was more relaxed, and she was feeling more confident of her prospects in sustaining her work role. Dr Champion thought that it was difficult to be sure about her prognosis in the long term. There was a reasonable prospect of gradual improvement with better capability of sustaining sedentary work, and gradual return to some of her lost activities. However, he considered that there would be long term risk of exacerbation on relatively minor mechanical provocation. At that time he thought it probable that she would not require surgery.

Dr Champion provided a follow up report dated 2 March 2006. Dr Champion reviewed the plaintiff on 27 February 2006. He noted that since he had seen the plaintiff in December 2003 she had continued to work full time as an architect, while undergoing treatment for her lumbar spine disorder. Her lifestyle had been very restricted. The plaintiff complained of increasing pain over the last two months, probably as a consequence of more sitting, and working with computers. She had been working 37.5 hours per week, with approval to go home early on days when there was more pain, and to catch up with extra work on weekends. However, her work load, and consequently time spent sitting using a computer, had increased as she became more senior in the firm. The plaintiff thought that she was now working about 44 hours per week. On examination, Dr Champion noted that the plaintiff complained of tingling down her right leg while standing. There was about 50 per cent limitation of expected lumbar flexion with an increase in back pain in the mid lumbar region. Lumbar extension activated pain down her right leg which caused a degree of apprehension. Side flexion activated mainly upper to mid lumbar spinal pain. There was weakness of repeated standing on her right forefoot, compared with the left, an S1 nerve foot motor test. Right knee tendon reflex was repeatedly somewhat less than the left, while the ankle jerks were normal. There was weakness of right knee extension with some tremor. On cutaneous sensory testing there were hypoaesthetic responses elicited from the right lower leg posteriolaterally and the lateral foot. There were no signs of deep secondary allodynia to pressure stimuli in the lower limbs. There was no indication of muscle wasting in the lower limbs. Straight leg raising on the right at 60 degrees activated back and leg pain, while on the left at 70 degrees there was milder leg pain. She was tender selectively at L5/S1, and pressure just to the right at L5/S1 activated sensations in her right foot.

Dr Champion referred to a number of reports that had been provided to him, including the reports of Dr Bradfield. He noted the report of pain referred to the posterior thighs and of restricted straight leg raising after the incident of 26 August 1998, and on that basis thought that it was reasonable to consider that by that time there may well have been some degree of L5/S1 disc pathology. He considered that there was probably about a 20 per cent contribution from pre March 1999 injuries to her pathology, but probably only about 10 per cent contribution to the symptoms, disability and handicap for work. He considered the plaintiff currently fit for sedentary work up to about 40 hours per week. He noted that she was currently working approximately 44 hours per week leading to sustained increase in back and lower limb pain. He considered that she needed an MRI of the lumbar spine and then to consider further interventions, potentially including a steroid injection under CT control and a possible minimally invasive surgical decompression. He considered that the plaintiff’s prognosis in the longer term without intervention was likely to be the same as her current presentation, and that at any stage she would be at risk of exacerbation on relatively minor mechanical provocation.

Dr Champion’s reference to “pain referred to the posterior thighs” in the history taken by Dr Bradfield regarding the August 1998 incident is puzzling. Dr Bradfield’s report of 2 December 2001 makes no reference to such a complaint, nor do his notes of his consultation with the plaintiff on 26 August 2008. There is a reference to “some restriction of straight leg raising to 20 degrees in both legs” in both his report and his notes.

Dr Champion provided a third reported dated 22 April 2006. He referred to an MRI undertaken on 10 March 2006. The only significant pathology revealed was at L5/S1. There was loss of disc height at T2 disc signal with a small posterior disc protrusion and annular fissure. Both S1 nerve roots appeared normal and there was no definite compression of the right S1 nerve root. The MRI result did not alter his diagnosis nor did it suggest any change from casual attribution of her pathology being related principally to the lifting injury of 20 March 1999.

Dr Champion’s final report is dated 23 April 2012. He noted that since he last saw the plaintiff in April 2006 she moved to Brisbane in 2008. She subsequently had surgery on her lumbosacral spine in October 2007. He noted that since he had last seen her, her ability to work had declined due to her low back and leg symptoms. Important aggravating factors included prolonged sitting, bending over, and walking on irregular terrain at building sites. The plaintiff assessed herself post-operatively as “very depressed”. Post-operatively she was intensely frustrated to the point of frequent anger, which together with irritability impacted upon her husband and his daughter. She was distressed about being unable to maintain her employment. Post-operatively, the pain in her right leg disappeared, but was replaced by significant pain in her left leg. Four weeks post-operatively, the plaintiff returned to work three hours per day five days per week. The pain intensified when she returned to work.

Dr Champion stated that after moving to Brisbane in January 2008 the plaintiff obtained a new, full time job as an architect in Brisbane. However she felt it necessary to resign by mid 2008 because of the difficulty in coping at work with her ongoing back and leg pain.

Soon after resigning in mid 2008 from her employment, the plaintiff obtained a further full time position in an architect’s firm. Unfortunately after eight weeks her general practitioner advised her to reduce her hours. At that time she was in charge of 10 people on a project and could not effectively reduce her hours, so she resigned in October 2008. Thereafter she elected to work from home as a self-employed architect, working on small projects. Dr Champion noted that she aims for five hours per day but does not always achieve that. In January 2010 she opened an office and employed a part time graduate architect. The assistant became full time in June 2010 and continued in that role. The plaintiff felt unable to increase her work hours beyond five hours a day at the most. The factors that limited her capacity to work longer hours at that time were the persistence and severity of the pain, impaired sleep, impaired cognition (concentration and memory), fatigue and some depression of mood, also anxiety with occasional panic episodes.

Dr Champion noted that the plaintiff’s then-current worst symptoms were low back pain and left leg pain. The left leg pain was more severe and more persistent than the low back pain. This made it difficult for her to sustain walking and to sustain sitting. Her sleep continued to be disturbed because of the pain and the emotional consequences. She could not go to movies, and found it difficult to enjoy going out to dinner because of her inability to sit for long periods. Dr Griffith concluded from his examination of the plaintiff that, consistent with her history, the plaintiff has ongoing features of left S1 radiculopathy with minor but definitely supportive physical signs.

Dr Champion addressed a number of reports that had been prepared on behalf of the defendant, to which I will later refer in greater detail. He reviewed a series of reports by Dr Gordon Stuart dated 28 September 2007, 10 October 2008, 1 February 2010 and 15 September 2011. He said:

Generally he put a lot of emphasis on the terminology degenerative disc disease at L5/S1 to the point that a reader would tend to discount the substantial significance of the injury impacting on that disc. While it is true that disc protrusions, internal disc disruption, annular fissure and associated radiculopathy is much more likely to occur in a disc which is at least somewhat degenerate, I consider that he went way too far in stating “it is difficult to be certain but I would estimate that in all probability she would have required surgery within five years”.

Dr Champion also reviewed the reports by Dr Khursandi dated 16 February 2010 and 4 October 2011. He noted that Dr Khursandi took the view that the back injury of March 1999 was a transient or brief affair, and that the plaintiff’s ongoing problems were primarily related to disc degeneration at L5/S1. That interpretation, in Dr Champion’s opinion, failed to take into account the non-resolution of her back complaint and continuing radicular pain from 1999 to the time of the operation and beyond.

Dr Champion considered that there had been an important continuity of disorder from March 1999, provoked by the accident of 20 March 1999, to the present date, related especially to the disc pathology at L5/S1 and to related radicular pain which was changed but not relieved by disc replacement surgery in October 2007. He considered that the continuity of the plaintiff’s symptoms and the total sum of evidence strongly favoured the injury of March 1999 having been a substantial causal influence on the need for surgery and on her current pain disability and partial handicap for work. He also considered that the plaintiff experienced an acute stress reaction in the early post-operative period which he considered to have been a probable factor in ongoing anxiety, panic and depression of mood.

Dr Champion considered the post-operative outcome to be unfortunate. He considered the plaintiff to have shown impressive and admirable determination in returning to the workforce. He did not consider that it was certain that she would be able to sustain work, even at the level of five hours per day, on a long term basis.

Dr Champion considered that revision surgery would be fraught with risk. He thought consideration could be given to a different approach such as CT guided spinal injections of cortico steroid.

Dr Champion also gave oral evidence. He considered it unlikely that the plaintiff would have required surgery if the incident of March 1999 had not occurred. He noted that the initial CT examination did not show degenerative changes at the L5/S1 level. It did reveal some small changes at L3/L4 and L4/L5 which may have been an early indicator of disc degeneration, but could equally have been a consequence of recent trauma.

Dr Champion was asked for his opinion of the cause of the plaintiff’s continuing post-operative pain:

And after disc replacement, there is still – there is trauma from the surgery. There are still ongoing sensory input from the site including the contiguous bone and there is the added trauma, adds to that sensitised pain processing in the dorsal horn of the spinal cord and to the - commonly to the pain experienced. Particularly in early post operative weeks. But additionally in Ms Gibson or Mrs Towill’s case she has a (sic) ridiculopathy. The (sic) ridiculopathy was previous – pre-operatively right disc one and post operatively became left as one dominant. And that is a very important ongoing source not only of the (sic) sighting of pain but of this centrally maintained chronic pain experience.

Dr Champion disagreed with the opinion of Dr Khursandi that the CT scan of 19 March 1999 confirmed the presence of degeneration with disc bulge L5/S1, saying that it was a distorted opinion which was not supported by the radiologist.

Dr Champion also disagreed with Dr Gordon Stuart’s opinion that even if the plaintiff had not had the injury on 20 March 1999 “in all probability” she would have required surgery within five years. Dr Champion stated that even if the plaintiff had a degenerate disc in March 1999 (which was only an inference), without the biomechanical stresses of the kind that render it substantially painful, it was very unlikely that the disc would require surgery. He identified the original biomechanical stress or injury to L5/S1 as “the primary one in March 1999”.

Dr Champion considered that the pain the plaintiff experienced in 1997 and 1998 could have been associated with “a little internal disruption” and that the pain was very likely discogenerative, so that by March 1999 the plaintiff was probably “a little vulnerable” to disc rupture and chronic pain at L5/S1.

In cross-examination Dr Champion noted that pharmacotherapy was partially restricted as the plaintiff was undergoing IVF therapy, but that once she completed that therapy medication may assist her with her pain, resulting in her being more physically able.

On behalf of the plaintiff Dr Garth Eaton, an occupational physician, prepared a number of reports, the first dated 24 April 2005. Dr Eaton noted the plaintiff’s history, including the history of her injury in March 1999, and the prior injuries to her back in 1997 and 1998. Dr Eaton examined the plaintiff and noted that her back movements were reduced in flexion with fingertips reaching the upper mid shin level. Extension was markedly restricted and there was a loss of the normal lumbar lordosis. Right and left lateral flexion and rotation were moderately restricted. Back muscles were generally tight and there was some tenderness over the lumbosacral area. Examination of the lower limbs revealed reduced straight leg raising at 60 degrees on both sides. Reflexes were all present and equal and power appeared to be normal. The plaintiff reported some pain in the hamstring muscles and the lower back on straight leg raising, her right side being more severe than the left. Sensation appeared to be reduced on the right calf posteriorly.

Dr Eaton noted that a CT scan of the lumbosacral spine on 29 March 1999 demonstrated a disc herniation centrally at the L5/S1 level. The herniation abutted the S1 nerve roots. There was also slight encroachment of the right neural foramen by the disc herniation which possibly had resulted in some irritation of the exiting right L5 nerve root. He also noted the results of the MRI scan carried out on 17 June 2003. Dr Eaton’s diagnosis was one of chronic spinal pain, a previous L5/S1 disc herniation and lumbar spondylosis. He considered that the plaintiff should participate in a supervised exercise program to further improve and maintain the strength, flexibility and stability of her spine. He considered that her current condition was directly and consequentially related to the various work-related injuries in 1997, 1998 and 1999, but that the incident in March 1999 appears to have been the major injury which resulted in the L5/S1 disc herniation and the development of chronic spinal pain. He considered that her prognosis was reasonable for adequate management and control of her back condition provided she participated in an ongoing suitable exercise program.

With respect to her work capacity, Dr Eaton noted that the plaintiff’s chronic back condition was aggravated by prolonged sitting. As an architect the plaintiff was required to spend many hours sitting and working on a computer. He stated that it is difficult to know whether her condition would deteriorate in future years and limit her capacity to work as an architect in a full time situation. He considered her to be totally and permanently unfit to work in any position involving heavy lifting, extreme bending, and other activities of that nature. He thought that with the maintenance of her exercise program and the provision of an ergonomically correct work station and appropriate work practices, the plaintiff should be able to continue practicing as an architect, albeit with some difficulty at times, but with episodes of back pain and discomfort.

Dr Eaton provided a further report dated 4 March 2006. Dr Eaton reviewed the plaintiff on 20 February 2006 at which time she stated that she continued to suffer right sided low back pain radiating into the right buttock and left calf. She described muscle cramps and in addition pins and needles in the right foot. She said her symptoms were aggravated by prolonged sitting. Usually her pain was like a dull ache, although she also experienced shooting pains severe enough to take her breath away. The plaintiff also complained that her right leg gave way on occasions, and that she would also limp depending upon how bad her back pain was at the time. She was attending a gymnasium three times per week and worked with a pilates instructor once a fortnight. She also swam twice per week. Her sleeping patterns were affected due to pain and discomfort.

The plaintiff stated that her condition had become worse, and wondered whether that was related to an increased workload as an architect. She was unable to drive long distances, or to carry out domestic duties such as vacuuming or packing a dishwasher. Her partner assisted her with grocery shopping. She stated that she could become very depressed, especially on the days when she was unable to go to work, which on average was one day per month. She worked additional hours at weekends to cover any time off that she took. Because of her pain and discomfort she became quite irritable. She found that she could not sit through movies, and found it extremely difficult to sit at dinner for long periods with friends. She would regularly walk. She wore a back brace in winter to provide additional warmth for her spine, but not in summer.

Dr Eaton noted that examination revealed reduced back movements in flexion with fingertips reaching just below knee level. Extension was negligible and clearly uncomfortable. Rotation and right lateral flexion were also reduced. There was obvious tenderness over the lumbar spine. Examination of the lower limbs revealed reduced straight leg raising at 45 degrees on the right and 60 degrees on the left. Straight leg raising induced low back pain. There was also hamstring tightness in both legs. There was a reported subjective dullness of sensation extending down the right leg laterally.

Dr Eaton’s diagnosis remained one of chronic spinal pain, previous L5/S1 disc herniation and L4/5 posterolateral disc bulge and lumbar spondylosis. He considered that her prognosis remained reasonable for adequate management and control of her condition provided she continued to participate in an ongoing suitable exercise program. However, it was clear that the plaintiff experienced intermittent periods of severe disability which incapacitated her to the extent that she was unable to work. He noted that she had an ongoing problem of prolonged sitting aggravating her condition, which was a difficult management issue for her.

The plaintiff also relied upon a report from Dr Griffith, a consultant surgeon, dated 2 May 2005. Dr Griffith noted the history of back injuries in July 1997 and August 1998, but considered on the history provided to him that they were unlikely to be significant. He also considered the history of the plaintiff’s accident on 20 March 1999, and her subsequent accident in February 2000.

The plaintiff complained of symptoms including back pain and disturbed sleep patterns. This resulted in her being unable to participate in sporting activities, although she was swimming three days per week using a kick board and performing breast stroke. She also performed Swiss ball exercises three times per week, designed to strengthen her paravertebral and abdominal muscles. She did not perform domestic functions such as vacuuming. Other functions, such as hanging out clothes, could be performed with difficulty. She preferred not to drive for longer than 20 or 30 minutes, as using the pedals aggravated her symptoms.

Dr Griffith conducted a physical examination of the plaintiff. He also noted the results of the CT examination of March 1999 and the MRI performed in June 2003. Dr Griffith noted that there was one point of focal tenderness in the right cervicodorsal region, further points of focal tenderness at paravertebral musculature bilaterally in the lower lumbar region, with subjective hypoaesthesia in the right L5 dermatome and some asymmetry of reflexes. He considered that the plaintiff had suffered injury as a result of the accident on 20 March 1999, and that the plaintiff did not exhibit any signs of embellishment or inappropriate pain related behaviours. He considered that the characteristic of the pain symptoms in the prior episodes of back pain before 20 March 1999 to be more consistent with acute musculoligamentous strain, rather than an overt disc injury.

Dr Griffith was of the opinion that the plaintiff, in the episode of 20 March 1999, suffered a protrusion of the lumbosacral disc with L5/S1 embarrassment, acute regional muscle spasm, and a minor bulge at L3/L4/5. The prognosis for the disc was one of further shrinkage and desiccation, with that process appearing to have commenced already based on the radiology. However, the plaintiff remained symptomatic in regard to pain. As she had symptoms continuing since 1999, early and dramatic resolution was not to be expected.

Dr Griffith provided a further report dated 26 March 2006. He noted that since he had last seen her in March 2005, the plaintiff reported that she had remained symptomatic, with pain continuing principally in her back at the level of six or seven out of 10, with the same characteristics as previously described. She reported that she was never free of pain. He noted that on 15 December 2005 she commenced to suffer an exacerbation of gradual onset and progression without any overt reason. She was at that time discharging her duties as an architect working 44 hours per week. A repeat MRI of the lumbosacral spine was undertaken on 10 March 2006. Dr Griffith was of the opinion that a comparison of the L5/S1 disc lesion in the three sets of films from 1999 onwards showed a small central posterior disc herniation, with the MRI of 17 June 2003 confirming what is described as small broad based posterior disc bulge. It was his opinion that the earlier films showed a bulge of approximately two millimetres. He considered that the 2006 MRI showed a six millimetre protrusion. He was of the opinion, therefore, that there had been a very significant increase in the level of bulging/protrusion of the disc which was likely to have occurred in mid December 2005 on the basis of the history given.

The plaintiff complained that her left leg was now associated with paraesthesia in the S1 dermatome, especially in the foot, whilst there is a sharp pain in the same distribution in the left calf. The thigh muscles were diffusely tender posteriorly. The symptoms are much more marked in the right than on the left, but are present bilaterally in a ratio of 80/20. He considered that her symptoms currently present in the proportion of 20 per cent involving her lumbar spine and 80 per cent involving the lower limbs. They are particularly aggravated by sitting and static posture and will remit if she does not engage in those activities. The plaintiff reported she had only been able to work four hours per day since the exacerbation, adding further to her frustration levels. She was also concerned about her right foot, which had commenced to give way when she was walking. Since the episode in December 2005 the plaintiff complained that she had developed a coarse and unpredictable tremor of the calf musculature and foot, precipitated by voluntary movement, and often without any overt reason. These symptoms were associated with recurrent cramps and tightness in the musculature in the interval period. The lower back remained a site of aching discomfort, aggravated to a moderate extent by impulse phenomena, suggesting there was an active discogenic component. Dr Griffith noted that the plaintiff reported to him an injection of local anaesthetic and depo-steroid to the affected nerve root, which had reduced her pain whilst the local anaesthetic was active. However, it did not appear that there was any significant lasting remission.

Dr Griffith noted that the plaintiff remained severely restricted in her daily activities. Physical activities requiring significant locomotion remain severely restricted and she could not sit for protracted periods, even for long enough to allow her to go out for dinner or sit through a movie. Emotionally the plaintiff remained dysphoric, emotionally labile, and sleeping poorly. Whilst her husband was extremely supportive, there had been profound negative effects on their physical relationship due to dysphoria, irascibility, loss of libido, and frank dyspareunia.

With respect to her employment Dr Griffith noted that the plaintiff was currently working approximately half time as an architect or more as tolerated. Whilst her present employers were extremely tolerant, she reported being intensely frustrated that she could not discharge her obligations at a level of which she knew she was capable, with field work being out of the question.

On examination Dr Griffith noted that the plaintiff had a significantly antalgic and circumspect gate, indicative of underlying discomfort when walking. Lumbar lordosis was flattened to some degree, associated with regional muscle spasm. Flexion was 60 degrees, with further flexion possible but at the cost of increased pain. Extension was 25 degrees with pain in the lower lumbar region, lateral flexion to the right of 30 degrees with pain, to the left 30 degrees pain free. There was focal tenderness in paravertebral musculature at L5/S1 level bilaterally. Thigh circumferences were equal, but the right calf was one centimetre smaller in girth than the left. When seated, straight leg raising reached 70 degrees on the right side with positive slump and flip tests. Straight leg raising was 80 degrees on the right with positive slump test. Recumbent, straight leg raising reached 80 degrees on the left side with minor discomfort, but approximately 50 degrees on the right with pain and positive bowstring and sciatic tension signs. Whilst muscle power appeared symmetrical, there was a marked tremor/clonus on the right side which was not present on the left. Sensation was decreased in the right S1 dermatome to prick and touch.

Dr Griffith’s diagnosis remained unchanged from his earlier report, with the exception that he considered that she was also suffering from a chronic adjustment disorder with elements of depression and anxiety. Dr Griffith was of the view that she suffered a lumbosacral disc lesion at the time of her injury on 20 March 1999, symptoms of which initially remitted but never resolved. She then suffered a further exacerbation in December 2005 which remained symptomatic. It was probable, in Dr Griffith’s view, that were it not for the injury that she sustained on 20 March 1999 it was unlikely on the balance of probabilities that a major disc lesion would have occurred spontaneously to the extent that he saw at that time. He considered the apparent healing of the effected disc was in fact a temporary aberration in the progress of a degenerate disc whose structural integrity was compromised irreversibly in the injury in 1999.

He considered that the plaintiff’s prognosis must be considered guarded. At that time she had been symptomatic to a variable degree for six years. The symptoms from which she was then suffering were intrusive and remained at a level which markedly interfered with her ability to perform normal activities in the work place, domestically, socially and recreationally. He considered that it is likely that she would remain symptomatic, with attendant psychological ill effects.

In a supplementary report dated 27 March 2006 Dr Griffith stated, in relation to the plaintiff’s ability to work as an architect, that he did not consider her theoretically able to contemplate more than four hours per day, and even that punctuated by breaks as required. He did not consider the plaintiff to be fit to sit continuously at a computer terminal.

Dr Griffith provided a further report dated 22 December 2011. Six and a half years had elapsed since the plaintiff was last seen by Dr Griffith. Dr Griffith noted that Dr Diwan performed a lumbosacral prosthetic disc replacement on the plaintiff in October 2007. Post-operatively she was an inpatient for five days with no immediate complications. The plaintiff complained of continuing symptoms post-surgery. Her symptoms continued to affect her activities of daily living and she remained psychologically compromised as a result of her chronic pain state. Since October 2007 she had been subject to panic attacks, which were of decreasing frequency. She had undertaken cognitive behavioural therapy for a period of three months.

On examination, Dr Griffith noted that the plaintiff had a circumspect gait but no obvious limp. With respect to her thoraco-lumbar spine, flexion was to 70 degrees, extension to 20 degrees with aggravation of her symptoms, particularly in the left side at the L4/5 region. Rotation and lateral flexion reached 30 degrees bilaterally. There was focal paravertebral tenderness at L4/5 level. Her right lower limb was confirmed to be one and a half centimetres shorter than the left, equally distributed between femoral and tibial segments. Muscle development was symmetrical. Straight leg raising was to 90 degrees when seated, with positive flip test, particularly on the left side and slump test, especially on the left. When recumbent, her straight leg raising reached 70 degrees with a persisting positive bow string sign on the left side only. Tone, power and sensation were otherwise normal. Hip movements were normal.

With respect to diagnosis, Dr Griffith stated that prior to the surgery performed by Dr Diwan the plaintiff suffered from a lumbosacral disc lesion with intrusive left sided sciatica. Following the disc replacement in October 2007, the lumbosacral disc no longer existed as an entity, and she currently suffered from left sided facet joint osteoarthritis which is at least partially responsible for her current symptoms of left sided low back pain and nerve root irritation. Dr Griffith noted that the radiology revealed that her pre-surgery lumbosacral gap was 12 millimetres, whereas it was 15 millimetres after surgery. He noted that in a situation of such longstanding symptoms, increasing the size of the disc space may have undesirable side effects, which he considered to be the case with the plaintiff. The initial distraction of the vertebrae results in uncommon strain on the adjacent paraspinal ligaments, misalignment of facet joints and chronic strain involving their capsules. This may produce aggravation of clinical symptoms. As the prosthetic disc is mobile there is a risk of accelerated facet joint degeneration, which Dr Griffith considered to be the case with the plaintiff and which was making a major contribution to her symptoms.

Dr Griffith considered that if the plaintiff had not suffered a lumbosacral disc injury in 1999, with aggravation in 2005, it was improbable that she would have suffered significant degenerative disease. Had she not suffered the original injury it was unlikely she would have suffered degenerative change to the extent which was then seen, which required a disc replacement. Dr Griffith considered, in retrospect, that the better course of action may have been fusion rather than a disc replacement.

As the lumbosacral disc had been removed and replaced with a prosthesis, the disc itself could not suffer further progressive degenerative changes. However there would be further deterioration in her facet joint osteoarthritis. Dr Griffith considered the plaintiff’s prognosis to be guarded, having regard to the fact that she had now been symptomatic for a period verging on 13 years. Early and dramatic improvement was not to be expected.

Dr Griffith’s final report is dated 22 April 2012. He had most recently seen the plaintiff on 10 April 2012. The plaintiff had complained to him that her low back pain was aching in nature, bilateral, but more marked on the left than on the right. Prolonged sitting was associated with left-sided S1 referral of pain and paraesthesia especially if she worked for more than five hours with static posture. This was progressive and constant for the last two months. The plaintiff believed that this may have been precipitated by the fact that she was then working two hours per week during the evening as a lecturer at the Queensland University of Technology. The pain in her lower back and lumbar region was also aggravated by prolonged standing. Pain was not aggravated by impulse phenomena, suggesting the pain was no longer discogenic. Dr Griffith noted that the plaintiff was working three hours per day with the assistance of a work experience student full time in the office, and further office help three days per week. She lectured at university two hours per week in the evening. Her activities of daily living remained restricted. On examination Dr Griffith noted that flexion was limited by pain to 75 degrees, extension to 25 degrees with marked exacerbation of pain, and lateral flexion and rotation 30 degrees bilaterally. Lateral flexion to the right side aggravated the plaintiff’s symptoms. The plaintiff’s lower limbs were of equal length, with the left calf being one centimetre smaller in girth than the right. Straight leg raising when seated was to 90 degrees bilaterally, with strong positive flip and slump signs bilaterally. When recumbent, straight leg raising was limited to not more than 70 degrees bilaterally with strong positive bow string and sciatic tension signs bilaterally. These findings were not present to nearly the same extent as when last seen, and were principally left sided on the last occasion. An additional feature, not present on the last occasion, was subjectively impaired sensation to touch in the left L5 dermatome.

In the course of this report Dr Griffith considered the reports provided by Dr Khursandi. Dr Griffith considered that Dr Khursandi, in his initial report, had not documented in detail the precise characteristics of the pain at the time of the initial episode. He considered that to be of vital importance, as it was only following the episode of 20 March 1999 that the plaintiff commenced to suffer aggravation of her symptoms with impulse phenomena characteristic of a disc lesion. Dr Griffith remained of the opinion that the episodes of July 1997 and August 1998 did not have the characteristics of a disc lesion.

Dr Griffith expressed the opinion that it was important to understand the normal pathophysiology of discs in cases such as that of the plaintiff. They do not have a blood supply and therefore they are only capable of healing by dessication and shrinkage, not by an active healing process. It is also important to appreciate that a disc annulus does not have an intrinsic nerve supply, and therefore it is possible to have occult and silent structural changes. In particular, rupture of the cross-ply layers of the annulus may occur initially without any symptoms whatever unless and until there is distortion of the anatomy of the disc due to loading, and consequent pressure on adjacent structures which have a nerve supply such as the spinal ligaments and adjacent nerve roots. Dr Griffith considered that the physical symptoms that were evident as at April 2012 were quite different from those documented at earlier times, with definite signs of radicular irritation and tension bilaterally. There were definite neurological deficits in the lower limbs diagnostic of an irritative neuropathy and focal tenderness overlying the L5/S1 facet joints particularly on the right side. Dr Griffith disagreed with Dr Khursandi’s proposition as set out in his supplementary report of 4 October 2011 that the plaintiff would have come to surgery even if the accident of 20 March 1999 had not occurred. He considered Dr Khursandi’s statements to be quite speculative.

Dr Griffith remained of the opinion that the plaintiff’s problem was largely related to left L5/S1 facet joint and the developing of progressive symptoms suggesting the development of progressive arachnoiditis/perineural fibrosis which is always an unpredictable complication following spinal surgery.

Dr Griffith also gave oral evidence. He was taken to the reports of Dr Khursandi and asked to comment. He did not accept that the plaintiff’s post-surgery complaints of pain were the result of pain originating in the disc space. He considered the plaintiff’s pain to be more consistent with facet joint degenerative change. He also had no doubt that the CT scan of 29 March 1999 revealed a disc lesion.

In cross-examination he accepted that a positive straight leg raising test and pain on impulse phenomena such as coughing after the 1998 incident would suggest disc involvement. However, he was not so supportive of the proposition that pain radiating to the thighs would suggest disc involvement without other information such as the extent of the radiation and a clear dissection of the pain and factors which exacerbate or relieve it.

The plaintiff also relied upon a report from Dr Scott Campbell, a neurosurgeon, dated 19 June 2009. Dr Campbell noted the history of injury on 20 March 1999, and her subsequent history of pain, with interruption to her domestic and employment activities. It was Dr Campbell’s opinion that the accident on 20 March 1999 was consistent with causing an L5/S1 disc protrusion and was the sole cause of the injury. The 1997 lumbar spine injury was insignificant and has not contributed to the current impairment. He considered the plaintiff’s prognosis with respect to performing her part time duties as a self employed architect to be satisfactory as she was only working a 20 hour week and her duties were mostly sedentary. He noted that she struggled with prolonged sitting, computer work, driving to and from sites, attending meetings and walking over work sites.

In cross-examination Dr Campbell agreed that greater significance would be imparted to the 1998 incident if the plaintiff had complained of a positive cough impulse and had positive straight leg raising after that incident. However, he continued to see the 20 March 1999 incident as the main injury leading to her ongoing problem.

The defendant’s medical evidence

On behalf of the defendant a report dated 26 July 2005 from Dr Peter Battlay, a consultant surgeon, was tendered. Dr Battlay had been provided with clinical notes from Dr Bradfield, clinical notes from Dr Davey, clinical notes from Valley Physiotherapy and Sports Injury Centre, clinical notes from Glebe Park Chiropractic and also clinical notes from Dr Fuller. Dr Battlay noted that Dr Bradfield recorded in his notes on 26 August 1998 that the plaintiff complained of low back pain after catching a board which was falling. Dr Battlay goes on to say “evidently a lumbosacral disc lesion had been diagnosed”. It is not clear how Dr Battlay comes to this conclusion. There is no note of any such diagnosis in Dr Bradfield’s notes, nor is there any reference to such a diagnosis in Dr Bradfield’s report of 2 December 2001. Dr Battlay in his report refers to a report from Dr Bradfield dated 2 May 1999, which indicated that a pre-existing lumbosacral disc legion had been aggravated by the lifting of boxes. That report does not appear to be in evidence before me. Dr Battlay also appears to place significance on the fact that the first reference in the notes from Glebe Park Chiropractic is to the August 1998 incident, there being apparently no mention of a work-related injury in 1999 initially in those notes.

Dr Battlay took a history of back complaints from the plaintiff. He noted that she confirmed that she had a lifting incident in 1997, and stated that she did not have any ongoing problems as the pain settled overnight after taking Panadol tablets. The plaintiff also advised of the injury to her back in August 1998, stating that she had no specific treatment but was off school for four days. From the report it does not appear that Dr Battlay questioned the plaintiff in any detail about the exact nature of her injuries on these occasions and the exact nature and location of her pain. He noted that the plaintiff’s then present complaints were pain at the L5 level spreading to both buttocks and the right lateral thigh, sometimes to the calf. The plaintiff complained that her right leg felt weak, and felt as though it could give way. She denied impulse symptoms or numbness. She said that she had pain in the back most days, mainly aggravated by her sitting for more than 20 minutes. She stated that she avoided all bending and lifting with housework. She did not vacuum, hang out the washing, carry shopping or bend into low cupboards.

Dr Battlay examined the CT scan series of 29 March 1999. He noted that there was a small central posterior disc herniation at L5/S1. An MRI of 17 June 2003 showed a bulging degenerating disc at L5/S1. A smaller L4/5 left posterolateral disc bulge was seen.

Dr Battlay expressed the opinion that there was a probable disc injury in August 1998 when Dr Bradfield examined the plaintiff following the incident at her college. He believed that with bilaterally reduced straight leg raising to 20 degrees it was likely that this was significant. It was at least the sign of a vulnerable disc, prior to any significant disc injury through the nature of the plaintiff’s work. He believed the March 1999 incident was reported to the plaintiff’s employers, but treatment was not commenced until the middle of the year. He believed, presumably on the basis of the chiropractor’s notes, that when the plaintiff saw the chiropractor greater emphasis was given to the August 1998 incident which “was not work-related”. He noted that there were further aggravations in February 2000 and August 2000. He expressed the opinion that on the whole her work-related injuries would only be one half of the reason for her problems at that time. He thought that the plaintiff had a prolapsed L5/S1 disc which appeared to be unchanged since 1999. She also had a bulging L4/5 disc, which was more likely to be constitutionally based.

In his report Dr Battlay was asked to comment on the impact of each injury sustained by the plaintiff on her condition as it then stood, and her ability to work. In his initial report he attributed nothing to do the incident in 1997, 50 per cent to the incident in August 1998, 10 per cent to the incident of 20 March 1999, 10 per cent to the incident of February 2000 and five per cent to the incident of August 2000. He then attributed 25 per cent to “general life events” and hereditary predisposition. In a supplementary report dated 5 September 2005 he altered those figures so that he attributed nothing to the 1997 incident, 25 per cent to the August 1998 incident, five per cent to the 20 March 1999 incident, 15 per cent to the February 2000 incident and 2.5 per cent to the August 2000. He attributed 50 per cent to general life events and hereditary predisposition.

On behalf of the defendant a number of reports from Dr Gordon Stuart, a consultant neurosurgeon, were tendered. The first report is dated 28 September 2007. Dr Stuart noted that the mechanism of her alleged injury was the lifting of a box of dinner sets on 20 March 1999. This precipitated intense pain in her lower back and down her legs. He noted that the plaintiff complained that her symptoms were worsening. The pain was constant but of variable intensity. It disturbed her sleep and radiated into her legs, with cramps and aches in her calves and a buzzing in her feet. He noted that the plaintiff had undergone pain management with Dr Champion at St Vincent’s Hospital in Sydney. Associated symptoms included paraesthesiae of her feet and her right leg occasionally giving way. The plaintiff advised him that she currently worked four hours per day, standing at a desk as an architect, and a further one to four hours per day at home. She had restrictions of activities of daily living. She was undertaking an exercise regime and medication in order to treat her back pain.

On examination, when asked to touch her toes her fingers reached the level of her knees. Straight leg raising was achieved to 60 degrees when supine, with the appearance of a marked tremor of the lower limbs. When seated, straight leg raising was achieved to 80 degrees, again with a marked tremor. Muscle power in the lower limbs was normal. Sensation to light touch was intact. Deep tendon reflexes, knee jerks and ankle jerks were present and plantar responses were flexor.

Dr Stuart noted the CT and MRI scan results. He considered that the plaintiff suffered ongoing low back pain and leg pain due to degenerative disease of the lumbosacral spine with an L5/S1 disc lesion, which was precipitated by a work injury. He believed that she was incapable of work beyond part time work. He was unable to estimate how long the incapacity would remain. He noted that she proposed to undergo major surgery, which would totally incapacitate her for a period of between three and six months. He considered that the plaintiff’s ongoing lower back pain and leg pain were no longer attributable to the incident in March 1999, but due to the ongoing degenerative disease of the lumbosacral spine. He considered the plaintiff’s prognosis to be poor in the short term and uncertain in the long term.

Dr Stuart’s second report is dated 10 October 2008. He notes that the plaintiff returned to part time work three hours per day in early December 2007, after having undergone disc replacement surgery on 9 October 2007. The plaintiff moved from Canberra to Brisbane in January 2008 and commenced full time work as an architect later that month. However because of several recurrences of pain she had several days off work. He noted that during the last eight weeks the plaintiff had taken five days off work, and was now working part time at 25 hours per week. She was about to commence leave without pay. He noted that there had been some minor flare ups of pain, but in the last four weeks she had unrelieved nerve pain involving her lower back, left buttock, left posterior thigh and left calf. The plaintiff had continuing restrictions of activities of daily living.

In his summary, Dr Stuart stated that the plaintiff suffers ongoing low back pain and left sciatica due to degenerative disease of the lumbosacral spine. Treatments so far had been unsuccessful. He had no additional treatment recommendations to make. The plaintiff was fit to continue with restricted work duties. He considered her prognosis to be poor overall.

Dr Stuart’s third report is dated 1 February 2010. He reassessed the plaintiff on 28 January 2010. He noted that the plaintiff continued to work from home part time as a self employed architect and averaged approximately 20 hours per week. Her symptoms remained essentially unchanged from his earlier report. She continued to have difficulties with activities of daily living. The plaintiff underwent nerve blocks on two occasions without any significant benefit. He noted a CT scan of the lumbosacral spine taken on 1 October 2008 which showed a disc replacement at the L5/S1 level.

Dr Stuart assessed the plaintiff as suffering ongoing low back pain and left sciatica due to degenerative disease of the lumbosacral spine. He considered her prognosis to be poor for any subsequent improvement. In his opinion her condition was a result of her degenerative disease of the lumbosacral spine and not a result of the injury of March 1999.

Dr Stuart’s fourth report is dated 15 September 2011. In this report Dr Stuart answers a number of questions put to him by the defendant’s solicitors. He expressed the opinion that the probability of a disc lesion of a healthy L5/S1 disc in a 24 year old by lifting a box weighing seven to nine kilograms from shin height is extremely low if the disc is healthy. However, he says, disc herniations are extremely unlikely in the absence of degenerative disease of the disc and there is good evidence that the plaintiff had a degenerative disc, as evidence by a prior history of back complaints in 1997 and 1998. He considered that there was a reasonable probability that a similar, apparently trivial event to that of 20 March 1999 would have resulted in a disc herniation requiring surgical treatment. He expressed the opinion that whilst it is difficult to be certain, he would estimate that in all probability the plaintiff would have required surgery within five years even if the incident of 20 March 1999 had not occurred.

In cross-examination Dr Stuart expressed a number of opinions that do not appear to be supported by any other medical witness. First, he expressed the opinion that the symptoms of a disc herniation “do not persist for eight and a half years”, suggesting, of course, that the pain experienced by the plaintiff in the lead up to surgery was not related to a disc herniation suffered on 20 March 1999. Secondly, he testified that disc herniation cannot occur without the presence of degenerative disease.

I note that Dr Stuart did not see the CT scan of 29 March 1999, and simply relied on the radiography report.

The defendant also tendered four reports from Dr HJP Khursandi, a consultant orthopaedic surgeon practising in Brisbane. Dr Khursandi interviewed and examined the plaintiff on 3 February 2010. Dr Khursandi noted the mechanism of the alleged injury on 20 March 1999, and her subsequent history of treatment. He further noted her history of pain subsequent to the accident. He also noted the history of back ache after two incidents in 1997 and 1998. He stated that the plaintiff described to him constant low back ache which increased with prolonged sitting and standing. The back ache was not affected by walking. She had daily episodes of pain in the left buttock, thigh and leg. Occasionally, the pain in her lower extremity could last for a few days to a month. The plaintiff reported that her pain and disability affected her activities of daily living. In his examination of her lumbosacral segment of the spine, the plaintiff could reach her lower shins with her fingertips with forward flexion. Extension, lateral flexions and rotations were slightly limited. Tenderness was present in the soft tissues of the lumbosacral junction with no spasm of the paraspinal muscles. He noted no wasting of her lower extremities, and straight leg raising was 70 degrees bilaterally. The sciatic stretch test was negative. Knee jerk and ankle jerk reflexes were present and symmetrical.

Dr Khursandi noted the results of CT and MRI scans of the plaintiff’s lumbar spine, together with the results of a lumbar discogram of 7 May 2007. From his perusal of the plaintiff’s medical documents and various medical reports, and an examination of the imaging investigations from March 1999 onwards, Dr Khursandi was of the view that the plaintiff had suffered a gradual progressive degeneration of the L5/S1 disc with annular tear and a central disc bulge as shown by her various scans and discogram. He was of the opinion that the episode of 20 March 1999 and further episodes in February and August 2000 transiently aggravated the pre-existing degenerate and protruding disc at L5/S1 level. He was not able to attribute her current back pain and symptoms in her lower extremities to the injuries which she sustained on 20 March 1999. He considered that her current backache was a consequence of her degenerate L5/S1 disc which had failed to resolve notwithstanding disc replacement surgery in October 2007.

Dr Khursandi’s second report is dated 4 October 2011. In this report he answers questions which have been put to him by the defendant’s solicitors. The first question which was put to him was: what is the probability that lifting a box weighing seven to nine kilograms from shin height would cause a lesion of a healthy L5/S1 disc in a 24 year old? Dr Khursandi replied that lifting a box weighing approximately seven to nine kilograms from shin height could injure an L5/S1 disc in a 24 year old. The second question which was put to him was: having regard to your conclusion that the claimant suffered from degeneration of the lumbosacral disc, what is the likelihood that she would have suffered the progression of the degeneration to the point of requiring surgery if the incident on 20 March 1999 had not occurred? Dr Khursandi responded that if the incident of 20 March 1999 had not occurred, the degenerate lumbosacral disc would have undergone natural progression and would have warranted surgery. The third question which was put to Dr Khursandi was: if you do consider that the claimant was likely to require surgery in any event, by what age is this likely to have occurred? Dr Khursandi responded that he was not of the opinion that the claimant was likely to require surgery in any event.

On 3 November 2011 Dr Khursandi provided an addendum to his review report of 4 October 2011. He confirmed that it was possible that lifting a box weighing seven to nine kilograms from shin height could cause a lesion of a healthy L5/S1 disc in a 24 year old, however it was his view that had the incident of 20 March 1999 not occurred, then in the plaintiff’s case the degenerative lumbosacral disc would have undergone natural progression and accordingly warranted surgery. With respect to his answer to the second question as set out in the report of 4 October 2011, he modified his answer to say that he was not of the opinion that the claimant was likely to require surgery as a consequence of the accident of 20 March 1999.

Dr Khursandi’s final report is dated 30 April 2012. In this report he corrects an error in his earlier report of 4 October 2011, such that he no longer asserted that if the incident of 20 March 1999 had not occurred, the plaintiff’s degenerative lumbosacral disc would have undergone natural progression and would have warranted surgery. Instead he now asserted that if the incident of 20 March 1999 had not occurred, the degenerate lumbosacral disc would have undergone natural progression and could have warranted surgery. In his report Dr Khursandi also disagrees with Dr Griffith’s opinion that only 1.5 per cent of individuals suffering significant disc lesion come to surgery. In his experience, the incident and rate of spinal surgery has increased and in some practices up to 30 per cent of significant disc lesions could be offered surgical treatment. He was further of the opinion that a degenerate lumbosacral disc can exist without any symptoms.

Dr Khursandi also gave oral evidence. It became clear in cross-examination of Dr Khursandi that his opinion as to the significance of the incident of 20 March 1999 was based on his opinion that the CT scan of 29 March 1999 did not reveal a herniation of the disc, but only a bulge. He agreed that he would have had a different view of the role of the incident of 20 March 1999 if he had seen a herniation of the disc on the CT scan.

Consideration

I found the plaintiff to be a credible witness and I have no hesitation in accepting her evidence. The lengthy surveillance videos tendered by the defendant depict nothing that gives me cause to doubt her evidence. I accept that there was a continuity of symptoms from 20 March 1999 onwards, leading to surgery in October 2007. It is probable that the plaintiff’s continuing pain after surgery is the result of either accelerated facet joint degeneration caused by the prosthetic disc, or a change in the intervertebral space caused by the insertion of the prosthetic disc.

I accept the evidence of Dr Griffith and Dr Champion on the question of the causation of the plaintiff’s symptoms from March 1999 to date. I prefer their evidence to that of the defendant’s doctors for a number of reasons. Firstly, the plaintiff’s doctors’ opinions accord with what I accept to be the truthful evidence of the plaintiff concerning the nature of the pain she felt on 20 March 1999, the difference between that pain and the pain she felt in 1997 and 1998, and the continuity of her symptoms up to the date of her operation in October 2007. Secondly, the plaintiff’s doctors’ opinions explain the continuity of her symptoms from 20 March 1999 onwards, whereas I found the opinions expressed by the defendant’s doctors on this issue quite unconvincing.

The opinion expressed by Dr Khursandi, in my view, does not acknowledge or explain the continuity of symptoms as described by the plaintiff. His opinion also suffers because he was of the opinion that the CT scan of 29 March 1999 did not show a herniation of the L5/S1 disc, whereas on the evidence I am satisfied it did. The opinion of Dr Stuart that the plaintiff would probably have required surgery within five years even if the incident of 20 March 1999 had not occurred is pure speculation, and other parts of his evidence were not supported by any of the medical witnesses. I found Dr Battlay’s evidence to be completely unconvincing as it ignores the continuity of symptoms from March 1999 onwards, and actually accords greater weight to the August 1998 incident as a contributor to the plaintiff’s current condition. It will be recollected that all of the evidence establishes that the August 1998 incident was transient, and did not interfere with the plaintiff’s ability to work or to engage in sport and leisure activities.

Damages

The plaintiff was injured when she was 24 years old. At that time she was at the beginning of her professional life, and had all of the expectations of life usually held by an intelligent and hardworking young adult. The injury to her back sustained on 20 March 1999 changed that forever. She has endured years of discomfort and pain, as well as emotional and psychological harm. She has been forced to relinquish employment in positions that she loved, and which promised great professional and financial reward, because she cannot physically do the job. It is to her credit that she has continued to attempt employment in a self-employed capacity working to a level which she can tolerate.

I assess general damages at $170,000.00, of which I attribute $90,000.00 to past pain and suffering. I allow $11,700.00 interest on that sum.

A financial loss analysis dated 8 April 2012 was prepared by Macquarie Reporting Services, financial loss analysts. An addendum report dated 24 April 2012 was also prepared. These reports provided calculations of both past and future economic loss. The estimate of past economic loss is based upon an assumption that the plaintiff’s earnings would have been 25 per cent greater during the period she worked for the defendant if she had not been injured. There is no evidence to support that assumption. The defendant accepts that the plaintiff suffered a loss of $20,000.00, and suggests that a further sum of $5,000.00 would be reasonable to bring it up to date. I think it probable that the plaintiff’s earnings over the last 12 months would have been greater had it not been for her injuries, but it is impossible to calculate a figure for that loss. I think the figure of $5,000.00 suggested by the defendant to be a little low, and I will allow $10,000.00 for that purpose. I will therefore allow $30,000.00 for past economic loss, plus interest on that sum of $1,200.00.

I think it improbable that the plaintiff will, as a consequence of her injury, work until age 67 as suggested by the defendant. A number of the medical witnesses have been guarded or pessimistic of her prospects of maintaining employment until full retirement age. It accords with common sense that the continuing pain and disability that plaintiff will probably experience will weigh more heavily upon her as she grows older. I consider that a retirement age of around 58 a probable scenario.

I propose to calculate the plaintiff’s future economic loss on the basis of a residual earning capacity of $94,825.00 before tax. I consider this to be a conservative figure, if not a little generous to the defendant. I propose to assess the plaintiff’s loss on the basis of a potential remuneration consistent with that set out in the letter of Bruce Fisher of CCJ dated 11 January 2011. Based on the report of Geoffrey Davies of 24 April 2012, this equates to a loss of income and superannuation to age 58 of $1,019,397.00.

This figure must be adjusted for vicissitudes. I will reduce it by 15 per cent for this purpose, making it s sum of $866,487.45. The defendant submitted that it should be reduced by a considerably larger percentage to acknowledge that the plaintiff’s back was likely to cause her problems even without the injury of 20 March 1999, and the possibility she may not have reached the heights of her profession. I do not accept that submission. The suggestion that the plaintiff had a vulnerable back which would have inevitably failed is speculative. I accept on the balance of probabilities that the plaintiff had a minor predisposition to back injury prior to 20 March 1999 (to quite Dr Champion), but the evidence does not establish a probability that she would have suffered the same or a similar injury if the incident of March 1999 had not occurred. The plaintiff was not planning on working in an occupation that required heavy manual labour, and it is probable that she would not have suffered a herniation in the course of her life but for the system of work accepted by the defendant which placed significant stress on her lower back. In addition, the evidence of the plaintiff’s ability as an architect was very strong, and she has demonstrated real commitment to her profession such that I am left in no doubt she would have achieved an income at least equal to that of a partner at CCJ.

Past out-of-pocket expenses have been agreed in the sum of $70,340.30.

Future treatment expenses have been claimed. I allow the following items as claimed by the plaintiff:

· for doctors visits a year at a cost of $119.60 a year, or $2.30 per week;

· medication costing $350.00 a year, or $6.73 per week;

· ongoing strength training through a gym at a cost of $830.00 a year, or $15.96 per week.

This is a total of $55,233.00 with a 15 per cent allowance for vicissitudes. To this should be added a buffer for future physiotherapy and other treatment at times of exacerbation of her injury. I allow $30,000.00 for this, making a total for future treatment expenses of $85,223.00.

The plaintiff claims for past Griffiths v Kerkemeyer for two hours a week from 20 March 1999 to November 2005, and two and a half hours a week from that time onwards. The evidence amply supports that claim. I will also allow two and a half hours a week for the plaintiff’s life expectancy of a further 50 years calculated at a rate of $22.00 per hour, but I will not award interest on the past sum so as to allow for increases in the rate over the period from 1999 to date. Past Griffiths v Kerkemeyer I allow at $15,136.00. For the future I allow the sum of $64,795.00 as claimed by the plaintiff.

Summary

I assess damages as follows:

General damages $ 170,000.00

Interest $ 11,700.00

Past out-of-pocket expenses $ 70,340.30

Future out-of-pocket expenses $ 85,223.00

Past Griffiths v Kerkemeyer $ 15,136.00

Future Griffiths v Kerkemeyer $ 64,795.00

Past loss of earnings $ 30,000.00

Interest $ 1,200.00

Future loss of earnings $ 866,487.45

Total $1,314,881.75
I certify that the preceding one hundred and forty seven (147) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 31 August 2012

Counsel for the plaintiff:  Mr F J Purnell SC
Solicitor for the plaintiff:  Maliganis Edwards Johnson
Counsel for the defendant:  Mr R L Crowe SC
Solicitor for the defendant:  King & Wood Mallesons
Date of hearing:  24 April 2012 – 2 May 2012
Date of judgment:  31 August 2012

Year	Earning
1998-1999	$20,305.00
1999-2000	$15,814.00
2000-2001	$24,284.00 (including $6,410.00 in Austudy payments)
2001-2002	$20,477.00
2002-2003	$18,359.00
2003-2004	$21,363.00
2004-2005	$33,336.00 (including tax loss from rental property. Earns as architect $39,701.00)
2005-2006	$32,751.00 (including tax loss from rental property. Earns as architect $46,600.00)
2006-2007	$46,484.00
2007-2008	$74,307.00 as architect
2008-2009	$78,516.00 as architect
2009-2010	$77,990.00 as architect
2010-2011	$94,000 as architect