Raczka v Department of Housing and Works - [2007] WADC 190

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: RACZKA -v- DEPARTMENT OF HOUSING AND WORKS [2007] WADC 190

CORAM: GOETZE DCJ

HEARD: 2-4 JULY 2007

DELIVERED : 31 OCTOBER 2007

FILE NO/S: CIV 883 of 2005

BETWEEN: JAN RACZKA
Plaintiff
AND
DEPARTMENT OF HOUSING AND WORKS
Defendant

Catchwords:

Assessment of damages for personal injury arising out of occupiers' liability claim - Liability admitted - Turns on own facts

Legislation:

Civil Liability Act 2002

Result:

Judgment for plaintiff in the sum of $22,250

Representation:

Counsel:

Plaintiff: In person
Defendant: Mr T R D Mason

Solicitors:

Plaintiff: Not applicable
Defendant: Jackson McDonald

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

Giorganis v Kastrati (1989) A Tort Rep 80‑233
Medlin v State Government Insurance Commission (1994‑1995) 182 CLR 1

GOETZE DCJ:

Introduction

This action involves a claim for damages for personal injury resulting from an accident in which the plaintiff was injured on 17 January 2004.
Liability for the negligence of the defendant has been admitted.
The plaintiff was not represented at the trial.
It is difficult to accurately assess the true extent of the plaintiff's accident injuries and their consequences. Although the plaintiff gave oral evidence and tendered certain copy medical reports, he did not call any oral evidence from his medical advisers. The medical reports do not explain all relevant matters and there are apparent evidentiary difficulties within some of those reports.

The plaintiff – pre‑accident

The plaintiff was born on 17 May 1955 in Poland where he was educated until he was 17 years of age. He then undertook some training in machinery and welding, but he is not otherwise trained for any vocation.
In 1981, the plaintiff visited Australia for a holiday. He subsequently applied for refugee status to remain in Australia and upon acceptance, he began work as a labourer. In 1982, he suffered a work injury when a compacter was dropped on him. This resulted in a serious low back injury for which he received compensation in 1989.
In 1995, the plaintiff returned to work for the first time since the 1982 accident, being self‑employed as a part‑time subcontract curtain fitter. At trial, he said that he was involved in this work until 2003, although his Centrelink file shows that he had ceased work by September 2000 and that he intended to return to it. Since 2003 at least, he has not worked although at trial, he said that he intended to do so, and would have done so, but for the accident which is the subject of this claim.
Between 1995 and 1999, the plaintiff was providing care for his two sons, the eldest of whom, regrettably, suffered from a brain tumour. He was also required to drive his wife to and from her work at King Edward Memorial Hospital where she cleaned surgical instruments. These duties restricted his ability to work. The plaintiff separated from his wife in late 2002.
The plaintiff has suffered from other medical conditions resulting in treatment before the subject accident, including:
(a)four hernia operations before 2000;
(b)a gastric operation in 2000;
(c)removal of the prostate gland in 2000;
(d)contraction of a benign blood cancer around 2000;
(e)the removal of a tumour near his stomach in 2001;
(f)two carpal tunnel syndrome operations in or about 1989 and 1993;
(g)tiredness and severe depression from 2002;
(h)non‑insulin dependant diabetes mellitus diagnosed in or about early 2003, although the plaintiff is not sure when he first suffered from it;
(i)severe gastro‑oesophageal reflux and reflux like symptoms;
(j)psoriatic arthritis;
(k)L5/S1 spondylolisthesis; and
(m)acute on chronic lower back pain from 1982.
The plaintiff was in receipt of some form of Centrelink benefits, probably sickness, for an unknown period from about September 2000. The plaintiff said that those benefits were to cover him during his convalescence from surgery. There is no evidence as to when these payments started.
In September 2000, when the plaintiff completed an application for Centrelink benefits, he indicated that he had difficulty "all the time" to sit, stand, walk, drive a car, use public transport, lift, carry, bend, operate everyday appliances, manage his personal affairs, care for himself and care for others. He "often" had difficulty to sleep and breathe. He "sometimes" had difficulty to concentrate, but he had "no problem" to read, write, speak, hear, remember, interact with others, attend work or other appointments and understand or follow instructions. He was not working and did not expect to return to full‑time work.
The plaintiff apparently underwent surgery on 14 September 2000 at Sir Charles Gairdner Hospital under the care of Dr A Parker, but I am not sure for which of the various operations referred to above. It is apparent from the Centrelink file that a Dr Faulkner was a surgeon who performed surgery on him and that Dr P Czajko was the attending medical practitioner in respect of a gastric operation. Further surgery was proposed for 19 September 2000, but details are not to hand. The Centrelink file reveals that Dr Faulkner prepared a report, but it was not tendered in evidence.
The end result is that there is no evidence of when the plaintiff's period of sickness and recuperation finished. Further, there is no evidence as to when his benefits ceased, if at all, before July 2003 when the plaintiff sought a disability pension.
On 7 July 2003, Dr L Polczynski, general medical practitioner, provided certain information to Centrelink respecting the plaintiff's then medical condition supporting his application for a disability pension.
Dr Polczynski advised Centrelink that the plaintiff suffered "chronic lower back pain with frequent episodes of acute on chronic pain" from 1982, when he had been injured in a work accident. As a consequence, he also suffered left sciatic pain and left‑sided testicular pain. She told Centrelink that "investigations confirmed advanced L5/S1 spondylolisthesis". Although he "was offered a spinal fusion", the plaintiff had declined it. He required continuing medication, rest and an exercise programme. He was unable to lift more than 5 – 7 kilograms in weight. He was restricted on bending and needed to change his body position frequently.
Dr Polczynski also advised Centrelink that the plaintiff suffered:
(a)psoriatic arthritis from "years ago". He had acute polyarthritis of both hands requiring medication and gentle exercise;
(b)severe depression resulting in lack of ability to concentrate, problems with sleep and long term memory, loss of motivation and severe headaches;
(c)non‑insulin dependant diabetes mellitus; and
(d)severe gastro‑oesophageal reflux post‑laparoscopy and reflux like symptoms which also prevented prolonged or repetitive bending.
Improvement was not expected.
Dr Polczynski reported to Centrelink that the plaintiff had a work capacity of up to seven hours per week, alternatively capacity for training of that duration. It was thought that he could do retail work. Prolonged or repetitive heavy lifting, bending, standing or sitting contributed to his acute on chronic back pain and reflux like symptoms with severe regurgitation.
It does not seem that Dr Polczynski provided any supporting material to Centrelink, but only her written comments on its appropriate form.
In support of his application for a disability pension in July 2003, the plaintiff himself disclosed that he suffered from back pain and psoriatic arthritis and that he had done so from "1981". He received medication for these.
The plaintiff also said that these disabilities "often" made it difficult for him to sit, stand, walk, drive a car or use public transport. Likewise, it was also "often" difficult for him to lift, carry, bend, operate everyday appliances, interact with others, attend work or other appointments, breathe and care for himself. He had difficulty "all the time" to concentrate, remember, sleep and manage his personal affairs. He "sometimes" had difficulty in understanding or following instructions. However, he had "no problem" to read, write, speak or hear. He was "unsure" as to when he would be able to do any full‑time work or be trained for full‑time work. He also said that he did not expect to return to full‑time work. He responded to a question regarding when he thought he would be able to work part‑time by answering "don't know". He described himself as a "self‑employer" and that he had worked "full‑time".
Dr N Street reported on 15 August 2003 for Centrelink that:
"In relation to his work ability, I consider the combined effect of his multiple medical problems renders him unfit for all forms of full‑time competitive employment currently and for at least the next two years. If his depression can be improved with specialist psychiatric treatment then at best he may become fit within the next two years to undertake part‑time light manual or sedentary type work of a non‑stressful nature. In order to obtain such work he would be likely to require retraining and/or rehabilitation."
On 27 November 2003, Dr J Scopa, neurologist, reported that the plaintiff had twice had unsuccessful carpal tunnel surgery 10 and 14 years beforehand. He had had progressing numbness of all upper limb digits over the previous decade. Examination revealed right sided carpal tunnel syndrome, but the left side could not be diagnosed with that syndrome, although tests revealed that such was highly suggestive.
In December 2003, Mr S Narula, neurosurgeon, requested a bone scan of the plaintiff's lumbosacral spine and pelvis with SPECT from Dr A van der Schaaf, radiologist. The referral read as follows:
"1981 work accident, progressively increasing low back pain with bilateral radiation, MRI lumbar spine bilateral L5 pars defect, associated with minimal spondylolisthesis, prominent haemangioma in the L1 vertebral body. Cause of pain?"
Dr van der Schaaf reported on 18 December 2003 that the planar views of the lumbosacral spine and pelvis together with SPECT views of the lower thoracic, lumbar and sacral spines and posterior pelvis showed an increased uptake in the lateral aspect of T11 on the right side, but were otherwise unremarkable. Tracer uptakes within the sacroiliac joints and pelvis were within normal limits. There was subtly increased tracer uptake in the left hip joint and minor irregularity of tracer distribution elsewhere. The T11 abnormality suggested an anterior osteophyte. No other abnormalities were demonstrated to account for the plaintiff's symptoms.
The plaintiff said in evidence that before the subject accident, he was walking, jogging, bench‑pressing up to 85 kilograms and lifting 105 kilograms in his home gymnasium. He further said that he was planning to become a heavy machinery operator in a mine, alternatively to return to curtain fitting, but that was less likely because his two sons were by then independent of him and he was no longer residing with his wife, such that he said he had determined to seek employment on a mine site. He had not done anything about seeking employment before his accident.

The accident

On 17 January 2004, the plaintiff was at a block of flats owned by the defendant. Whilst there, he stepped onto a damaged steel storm water drain grate situated in the car park of the premises resulting in the grate dislodging with the plaintiff's right foot and leg falling into the drain. The plaintiff's left leg remained behind him on the ground above the drain. During the fall, his body twisted and he sought to break his fall with each hand, but, this did not restrain him sufficiently, such that he said his head struck the ground.
Liability is admitted for this accident.

Nature of accident injuries – medical evidence

Dr L Polczynski provided a detailed report to the plaintiff's solicitors dated 31 May 2005. She said that:
"Four days post‑accident, Mr Raczka presented with the following complaints: right ankle and knee pain, right groin pain, lower back pain, right sided mid‑back pain, right elbow and shoulder pain, headaches and pains across his mid‑abdomen.
He was limping, favouring the right lower limb. There was an extensive skin graze present over his right thigh and shin. His cervical and lumbo‑sacral spinal movements were restricted due to co‑existing muscular spasm."
In terms of diagnosis, Dr Polczynski said that:
"Immediate post‑accident diagnosis included widespread soft tissue contusion involving all limbs, lower back and abdominal wall together with extensive skin graze over right thigh and shin.
The initial rather complex presentation became more clear‑cut over a period of time. To date diagnosis is as follows:
‑bilateral lateral eipcondylitis (tennis elbow), worse on left side
‑exacerbation of bilateral carpal tunnel syndrome
‑exacerbation of psoriatic spondyloarthritis involving thoracic spine, both sacroiliac joints and the right hip and documented by an isotope bone scan.
‑right thoracic outlet syndrome (condition post surgery)
‑right plantar fasciitis."
Dr Polczynski thought the initial injuries were of:
"moderate severity. However the chronic symptoms which I considered to be related to the accident, have been of severe gravity".
She reported that:
"Mr Raczka has been symptomatic since the day of the accident. Despite numerous treatments and therapies he has been troubled by widespread pains of fluctuating severity and distribution. He is in chronic pain, day and night; taking regularly strong analgesia (Panadeine Forte). Occasionally the pains became exceptionally severe and Mr Raczka needs morphine based analgesia.
His symptoms relate to shoulders, elbows and wrist, lower back, groins, buttock and heels. Apart from chronic pain over the areas listed above, he experiences intermittent paraesthesia like symptoms over both of his lower limbs, and less frequently upper limbs.
Mr Raczka's sleep has been interrupted since the accident.
He is becoming anxious about the length of his recovery process, his level of physical capacity and future employability."
Dr Polczynski did not report any injury to the plaintiff's neck, but she had no doubt that the initial injuries as listed above were directly related to the accident. The plaintiff's bilateral carpal tunnel syndrome was exacerbated. However, the plaintiff did not present with left arm, elbow or shoulder problems when he first attended Dr Polczynski.
Dr Polczynski said that the plaintiff's "widespread pains consistent with spondyloarthritis remain in close relationship with the accident" and he suffered "exacerbation of psoriatic spondyloarthritis involving the thoracic spine, both sacroiliac joints and the right hip and documented by an isotope bone scan".
Further, prior to the accident, the extent of the psoriasis related spondyloarthropathy was "very limited", but that situation had "changed dramatically since the accident in January 2004", she said, as could be seen from the bone scan report provided by Dr van der Schaaf to which I have already referred, and a subsequent report dated 9 August 2004 from Dr G Bower, radiologist. This report dealt with the plaintiff's whole body bone scan:
"which demonstrates symmetrical prominent uptake in the acromioclavicular joints, moderate change in the right sternoclavicular joint, less intense increased uptake in the manubriosternal joint and lateral aspect of the right humeral head, irregular changes in the thoracic spine from T7‑T11 viewed posteriorly and prominent uptake in the right hip and both sacroiliac joints, mainly inferiorly. No other definite abnormality can be seen.
In the context of previous trauma, the changes suggest more the presence of an inflammatory process causing sacroilliitis and spondylolisthesis, in addition to arthropathy and enthesopathy at the above sites."
There were also changes to the right and left elbows in that the plaintiff had epicondylitis (ie, tennis elbow). "No particularly active change" was identified by Dr Bower "at the level of the previous L5 pars defect demonstration".
However, a fair reading of the two radiological reports, without more, does not reveal that the situation had "changed dramatically". Dr van der Schaaf found degeneration in the lumbosacral spine, pelvis or lower thoracic spine, sacroiliac joints and left hip. Dr Bower found degeneration in the thoracic spine, right hip and sacroiliac joints. He also found degeneration in other body parts because he undertook a full body scan, whereas Dr van der Schaaf only undertook a limited examination of the thoracic, lumbosacral spines and pelvis.
The plaintiff did not lead any other medical evidence by way of comment upon the radiological reports from Dr van der Schaaf and Dr Bower. As noted in Dr Bower's report, the investigations as at August 2004 "suggest … sacroiliitis and spondylolisthesis". The use of the word "suggest" does not justify the comment of "changed dramatically". I will return to this aspect of the matter when dealing with other medical evidence.
Further, Dr Polczynski's comment that the plaintiff's "widespread pains consistent with spondyloarthritis remained in close relationship with the accident" seems to ignore or contradicts the plaintiff's pre‑accident medical condition as reported by her to Centrelink.
Dr Polczynski described, amongst other things, "acute polyarthritis of both hands" with "severely restricted fine movements of both hands" and "advanced L5/S1 spondylolisthesis" when reporting in July 2003 to Centrelink in order to assist the plaintiff obtain an invalid pension. These conditions, together with acute on chronic back pain, demonstrate the plaintiff's high level of disability as at July 2003.
As will be seen later, psoriatic spondyloarthritis often affects small joints of the fingers and toes, the spine (spondylitis) and sacroiliac joints (sacroiliitis). It would seem to be an exaggeration to report in May 2005 that the plaintiff's situation had "changed dramatically" in that he suffered "very limited" psoriasis related spondyloarthropathy prior to the accident given the report by Dr Polczynski to Centrelink in July 2003 supporting the plaintiff's claim for a disability pension.
Dr Polczynski's reference in her July 2003 report to "chronic lower back pain with frequent episodes of acute on chronic pain" presumably refers to its severity and duration respectively from the 1982 accident. No doubt the plaintiff had complained of frequent back pain being acute on chronic since 1982, including left sciatic pain and left peri‑testicular pain, as reported by Dr Polczynski to Centrelink in July 2003 and Dr Polczynski accepted that complaint. She had been his doctor since 5 April 2003.
Dr Polczynski "strongly believe[d]" the plaintiff's widespread inflammation would subside with time. She did not, however, know whether he would be left with any residual symptoms and was unable to predict his long term outcome.
Dr Polczynski's May 2005 report to the plaintiff's former solicitors did not refer to the plaintiff's pre‑accident depression, diabetes or gastro‑oesophageal reflux.
Further, Dr Polczynski reported to the plaintiff's solicitors that:
"Mr Raczka's chronic medical condition has had an enormous adverse effect on his lifestyle. First, his restricted physical capacity prevents him from any work related engagements."
Then, in answer to a question about his present work capacity, she said that after his accident, the plaintiff was:
"totally unfit for pre‑accident duties which included heavy lifting, repetitive bending, prolonged standing and work above head level".
Dr Polczynski did not refer to the plaintiff's work history in her report. She did not refer to her report to Centrelink and she did not say that the plaintiff was a disability pensioner, but further said that:
"in the foreseeable future I can not picture Mr Raczka as being fit to return to his previous employment".

Dr Polczynski also commented that the plaintiff was "becoming anxious about the length of his recovery process, his level of physical capacity and future employability". As noted above, she did not refer to the plaintiff's pre‑accident depression, which she had described as a "severe disorder" when reporting to Centrelink in July 2003.
Dr Polczynski's report to the plaintiff's solicitors further advised that:
(i)the plaintiff had "been symptomatic since the day of the accident";
(ii)his sleep had been "interrupted since the accident";
(iii)he tried "to remain physically active";
(iv)"The initial injuries were of moderate severity. However the ongoing chronic symptoms … related to the accident, have been of severe gravity;"
(v)the only "exacerbation" was of:
(a)"bilateral carpal tunnel syndrome";
(b)"psoriatic spondyloarthritis involving thoracic spine, both sacroiliac joints and the right hip"; and
(vi)in addition to her comments about the plaintiff's work capacity to which I have already referred, the plaintiff would "be capable of performing light duties once the widespread inflammation settled down".
These comments from Dr Polczynski suggest that the plaintiff was working prior to the accident and that his work involved duties of a heavy, or at least moderate, nature. However, such was not the case.
It is to be remembered, that, six months prior to the accident, the plaintiff was already symptomatic, he had difficulty in sleeping, his physical activity was impaired, he was not working and he had been granted a disability pension.
Dr Polczynski was not called to give evidence. It was the plaintiff who tendered her report dated 31 May 2005. The defendant however tendered her July 2003 report to Centrelink. It would appear that Dr Polczynski was sympathetic to the plaintiff's cause when reporting to Centrelink and later, when reporting to the plaintiff's former solicitors in respect of the present claim.
It follows that Dr Polczynski's report does not address all relevant issues or overstates issues such that it is difficult to attach any weight to her report to the plaintiff's former solicitors. It must be regarded with circumspection, however I appreciate that she has not given evidence in this action and that she has not had the opportunity to comment on this finding.
Dr Polczynski also advised that, she could not provide copies of specialists' reports due to privacy laws, without the consent of those specialists. This is somewhat surprising. She did, however, enclose copy reports from Dr van der Schaaf and Dr Bower. Presumably she had their consent.

Post‑accident medical treatment and reviews

Dr Polczynski provided the plaintiff with a tetanus booster, analgesia, non‑steroidal anti‑inflammatory agents being Celebrex and Feldene together with temazepam as a sleeping aid in respect of the accident injuries. In September 2004, she prescribed an anti‑depressant, Aropax, which she discontinued one month later due to insomnia. The plaintiff also had steroid injections in both lateral epicondyles and acupuncture treatment in the right vastus medialis tendon for inflammation.
Dr Scopa reported that the plaintiff's carpal tunnel syndrome had worsened by 27 May 2004 on the right side, although the plaintiff was uncertain whether the carpal tunnel symptoms had worsened in that time. Dr Scopa had previously seen the plaintiff in November 2003 as set out above.
The plaintiff attended Osborne Park Hospital Physiotherapy Department for treatment upon recommendation from Dr Polczynski in July 2004. He was referred with respect to his shoulders, elbows, hips and knees complaining of lower back pain, mainly in the left lower back and left testicle. He appears to have had pain in the left lower leg reaching around to the top of the left foot. He was given a hydrotherapy programme.
The plaintiff ceased attending hydrotherapy in October 2004. The record indicates that he did not return after six sessions, such that he was therefore "officially discharged", but it appears that he re‑attended by January 2005, complaining of numbness and tingling when his arms were elevated and thoracic outlet syndrome was queried.
The physiotherapist queried the state of the plaintiff's global issues, his attention seeking behaviour and whether he was looking for "legal compensation" and spoke to his general medical practitioner about this. Shortly thereafter, the plaintiff was to have carpal tunnel surgery and he again ceased attending physiotherapy. When reporting to Mr Narula in respect of that proposed surgery, the physiotherapist noted that notwithstanding all his treatment, there had been no subjective change in the plaintiff's symptoms.
The plaintiff attended Dr G Bower on 9 August 2004 as noted above.
The plaintiff was reviewed by Dr G Carroll, consultant physician in rheumatology. On 25 August 2004, Dr Carroll reported to Dr Polczynski that he did not think there was any evidence of sacroiliitis even though the bone scan was reported as showing this. Likewise he thought that the other lesions were "generally soft and not compelling with respect to psoriatic arthritis". There was no unequivocal evidence of psoriatic arthritis. He suspected that there was no inflammatory arthropathy. The plaintiff was tender over the lateral epicondyles and had painful limited movements of the shoulders, but they were "only moderately troublesome". Further x‑rays and monographic evaluation of the left elbow and left shoulder were required and the plaintiff was to thereafter be reviewed, but there is no further report to hand from Dr Carroll.
On 3 and 9 November 2004, Mr J E Teasdale, vascular surgeon, reported to Dr Polczynski that investigations into the plaintiff's upper limbs showed compression of the subclavian veins bilaterally by elevation of the arms and abduction at the shoulders, but not arterial compression. Such veinous compression can occur in a proportion of the normal population without symptoms. However, the fact is that the plaintiff was complaining of symptoms being pins and needles/pain and discomfort in his upper limbs which was potentiated by elevating his arms above his head. Generally, to diagnose thoracic outlet syndrome, one needed to demonstrate arterial compression on duplex scanning. This had not been demonstrated with the plaintiff.
In November 2004, Dr Polczynski referred the plaintiff to Mr M Alexeeff, orthopaedic surgeon, who also suggested in his report to Dr Polczynski that the plaintiff did not have an inflammatory aetiology. Apparently, by that time, the plaintiff had had a number of epidural injections with respect to his low back pain under the care of Dr G Finch, pain specialist, from whom I do not have a report. Also, the plaintiff had recently had right sided carpal tunnel decompression prior to the review by Mr Alexeeff. The plaintiff told Mr Alexeeff that he "subsequently" became an invalid pensioner, following this treatment. This is an incorrect history.
Mr Alexeeff found the plaintiff to have evidence of bilateral AC joint arthropathy. Provocation testing was equivocal. His rotator cuffs were intact. The lateral epicondyles of both elbows were tender and there was crepitus of radiocapitellar motion. This correlated with the bone scan. He had psoriatic patches over the knees and elbows.
The plaintiff's lumbar spine was stiff with loss of lumbar lordosis. His lumbo‑sacral motion was restricted.
Mr Alexeeff did not think that the plaintiff suffered psoriatic arthropathy. He thought the plaintiff required an injection of local anaesthetic and steroid into both acromioclavicular joints under image control.
In the ordinary course of events, I would have expected Dr Polczynski to have disclosed the reports from Dr Carroll, Mr Teasdale and Mr Alexeeff in her report dated 31 May 2005 to the plaintiff's former solicitors, however, she did not do so. I do not know why, apart from these doctors apparently not authorizing their release, but clearly Dr Carroll and Mr Alexeeff do not support her opinion as to inflammatory or psoriatic arthropathy which impacts upon Dr Polczynski's report that the plaintiff's extent of psoriasis related spondyloarthropathy was "very limited" prior to the accident, but that that situation had "changed dramatically" since the accident". Mr Teasdale was apparently not supportive of the diagnosis of thoracic outlet syndrome. These three medicos do not relate the cause of any condition to the accident.
On 14 March 2005, the plaintiff underwent left thoracic outlet obstruction syndrome operation under the care of Mr Narula. The plaintiff claims that this was not successful because Mr Narula damaged his left shoulder nerves. Mr Narula has not had the opportunity to respond to this claim. At the same time as the thoracic outlet operation, the plaintiff underwent left‑sided median nerve compression surgery for his carpal tunnel syndrome.
In a report to Dr Polczynski dated 22 June 2005, Mr Narula said that the plaintiff found improvement in his left arm symptoms following the brachial plexus exploration, even though at surgery Mr Narula did not find any significant evidence. Mr Narula undertook a lateral scalenotomy in respect of the thoracic outlet syndrome referred to above. Initially, there was improvement in the left arm symptoms. The plaintiff also underwent left carpal tunnel release at the same time. Following surgery, there was neither carpal tunnel involvement, nor any neurogenic thoracic outlet syndrome demonstrated by an EMG.
However, the plaintiff's symptoms surprisingly returned with the same distribution and Mr Narula was not sure as to the cause of that. Accordingly, he did not wish to proceed with thoracic outlet surgery on the right side and suggested that the plaintiff "wait and watch". There is no other report from Mr Narula. Dr Polczynski's report dated 31 May 2005 referred to the surgery performed by Mr Narula. She did not refer to damaged left shoulder nerves and Mr Narula's report detailed above did not refer to any such damage, such that I have drawn the inference that the plaintiff did not complain thereof to either of them. Such finding highlights the problem of the plaintiff not calling either Mr Narula or Dr Polczynski to give oral evidence alternatively, to have them provide further and more detailed reports.
The plaintiff was then referred to Dr K Maguire, rheumatologist, who provided the plaintiff with pain medication. Notwithstanding that Dr Maguire has apparently been the main medico to whom the plaintiff has turned for treatment, I do not have any report from him at all with respect to the interaction, if any, between the plaintiff's pre‑accident medical condition, the accident, the injuries arising from the accident and the effect of the accident injuries upon the plaintiff and his pre‑existing condition. In her report dated 31 May 2005, Dr Polczynski noted that the plaintiff had been referred to Dr Maguire and that a report should be obtained from him.
In July 2005, the plaintiff, at the request of his former solicitor attended Dr J K Ker, consultant physician in rehabilitation medicine. Dr Ker noted that the consultation primarily centred upon the plaintiff's long standing musculoskeletal pains emanating from his work accident in 1982 following which, the plaintiff underwent supervision from Dr Ker's former colleague, Dr A R Robinson, at the Royal Perth Hospital Shenton Park Campus.
Dr Ker also indicated that the plaintiff had pre‑existing arthritic disease, the diagnosis of sero‑negative rheumatoid arthritis being established by Dr Maguire.
On 12 August 2005, the plaintiff saw Dr A C Harper, occupational physician, who reported to the plaintiff's then solicitors that past treatment also included cortisone injections into both elbows and a facet joint injection at L5/S1, all without relief. Dr Maguire was providing treatment for the plaintiff.
When reviewed by Dr Harper, the plaintiff suffered from worsening symptoms, being:
1.numbness, tingling, pain, weakness and swelling in both hands notwithstanding his post‑accident bilateral carpal tunnel release surgeries;
2.neck pain and stiffness, radiating to the left shoulder and thoracic spine;
3.low thoracic pain and sharp pain at the level of T11 and T12;
4.constant low back and leg pain which were his worst symptoms, radiating to each buttock, leg and heel; and
5.bilateral medial thigh pain 2‑3 times per week;
This is the first report of neck pain. The plaintiff told Dr Harper that he "jerked his neck" in the accident.
Dr Harper reviewed the radiological reports and the plaintiff's work history noting that he emigrated to Australia in 1981 working as a labourer, office cleaner, gardener, metal worker and curtain fitter. The history obtained was that the plaintiff stopped working in 2003 due to multiple medical conditions and that he has not worked since. The plaintiff told Dr Harper that he had been on the disability pension prior to his accident. Nonetheless, he said that prior to the accident, his health was "beautiful" relative to what it had been seven months earlier when he was in very bad shape, both physically and mentally, suffering from headaches, very high blood pressure, uncontrolled diabetes and he was experiencing a lot of stress. He had had bilateral carpal tunnel syndrome, but he did not recall symptoms extending above his wrists.
The plaintiff told Dr Harper that his hand symptoms on examination were then "much worse" than they were prior to the accident when he was free of elbow symptoms and his arm strength was unimpeded. He said that prior to the accident, he was lifting 65 kilograms, free of neck pain and stiffness and that he was also free of thoracic pain. He also said that he had some pre‑accident left low back pain which radiated to the left testicle and down the left leg to his left foot.
The plaintiff told Dr Harper that his post‑accident back pain was "much worse" than prior to his accident when he had been free of medial thigh pain. He had no prior injury or accidents or injury to his neck, arms or middle back. There had been no motor vehicle accidents.
The plaintiff had had a number of operations previously, including hernia operations and removal of an abdominal tumour, surgery for cancer of the bladder, prostate surgery and bilateral carpal tunnel surgery. He had elevated blood pressure and non‑insulin dependant diabetes, both treated with medication. Since his accident, he had developed Crohn's disease. There have been no subsequent injuries.
Dr Harper diagnosed strain injury to the cervical, thoracic and lumbar spines superimposed upon pre‑existing degenerative changes. This resulted in cervical and thoracic symptoms and aggravated pre‑existing low back pain. There was aggravation of pre‑existing carpal tunnel compression bilaterally. Further, the plaintiff sustained strain injuries to both elbows resulting in epicondylitis bilaterally. The accident may have caused soft tissue strain injuries in the root of the neck and possibly contributed to a pre‑existing predisposition to thoracic outlet syndrome. The injuries from the accident were mild to moderate in severity.
In terms of the likelihood of returning to work, Dr Harper thought "there may have been some possibility of" that prior to the accident, but that was "now less likely due to the fall". This comment must be viewed in light of the limited history given to Dr Harper, including the fact of the 1982 work accident not being brought to his attention.
Physiotherapy was required, although the frequency could not then be determined.
The cervical, thoracic and lumbar spines sustained mild residual disability. Disability of both arms was mild to moderate. The "probable prognosis was that future disability will increase due to degenerative changes which may have been aggravated by his fall". To say that the degenerative changes "may" have been aggravated in the accident falls short of proving that it is more probable than not that the accident has exacerbated the plaintiff's degenerative changes or that the advancement of those changes has been accelerated or brought forward to a time earlier than would have occurred in any event. However, as noted above, Dr Harper found that the plaintiff had suffered strain injuries to the cervical, thoracic and lumbar spines superimposed on pre‑existing degenerative changes.
Interestingly, Dr Harper's only comment with respect to the plaintiff's shoulders is that his range of movement thereof was within normal limits.
During August 2005, the plaintiff was referred to Dr A Worynski, gastroenterologist, with abdominal cramps and diarrhoea. Dr A Worynski, diagnosed possible Crohn's induced Ileitis.
In or about September 2005, the plaintiff was referred by Dr Maguire to the Severe Arthritis Clinic at Royal Perth Hospital for his intravenous Infliximab infusions every eight weeks at a cost of $3,000 each.
A subsequent colonoscopy under the care of Dr Worynski in 2006 revealed that the plaintiff suffered candidiasis. The Ileitis healed representing either a "response to Infliximab infusions or small bowel ulcers induced by anti‑inflammatory medication". The plaintiff's abdominal problems were likely to have been of functional aetiology and represented irritable bowel syndrome.
The plaintiff's evidence was that he had never had Crohn's disease, but only ulcers and that Dr Worynski had confirmed this, such that Crohn's disease was only a "suspicion". The plaintiff further said that it was Dr Worynski's opinion that all of these problems were related to the plaintiff's sacroiliac joint, but this is not stated in any of Dr Worynski's reports.
Further, the referral to Dr Worynski appears to have been for reflux symptoms and diarrhoea which the plaintiff said were caused by his non‑steroidal anti‑inflammatory medication. Dr Polczynski reported that such medication was Celebrex and Feldene. From the plaintiff's medication details, it can be seen that he was prescribed Celebrex at least by July 2003, by which time he already had reflux problems as Dr Polczynski advised Centrelink. The medication details do not refer to Feldene being dispensed for the plaintiff, either before or after the accident, unless it was so done by another, or a generic, name. Dr Polczynski did not refer to reflux problems at all in her report dated 31 May 2005. The reflux problems cannot be attributed to the accident.
In February 2006, the plaintiff was also assessed for sexual dysfunction alleged by the plaintiff to have occurred as a result of the subject accident. Dr Stephen Adams provided a report to the plaintiff's former solicitors advising that prior to his separation from his wife and prior to his accident, the plaintiff had begun to notice early erectile dysfunction. Following the subject accident, the plaintiff's libido was maintained and there had been little or no change in his erectile function. He had pain on orgasm and could suffer headache and back pain which was worse after taking Viagra. He complained of testicular pain.
Dr Adams thought there "has possibly been some marginal deterioration of his dysfunction since the accident". Dr Adams was only able to attribute 4 per cent "loss of genitals" as being a permanent loss of function attributable to the accident. Multiple medical conditions also contributed to his dysfunction. This "possibl[e] marginal dysfunction" does not meet the required standard of proof such that it cannot be said that it is more probable than not that there is any deterioration. Further, the fact that such "possible marginal deterioration" was found does not of itself mean that it was caused by the plaintiff's accident. The plaintiff has not proved the necessary causation of that deterioration from the accident.
On 6 June 2006, Dr Maguire wrote to Dr Polczynski regarding an MRI of the plaintiff's left shoulder taken on 1 June 2006. He indicated, that, the MRI showed a range of pathologies having developed as a result of the accident with neurological injury to the teres minor muscle with denervation noted, labral tear being detected and tendinosis problems involving the supraspinatus. The issues in relation to the tendinosis in the acromion possibly required arthroscopic surgical review. It was thought that arthroscopic review of the acromioclavicular joint could also be undertaken. The labral tear may have required further investigations, including an MRI arthrogram of the shoulder, but in the long term, arthroscopic surgery for the shoulder may have been required and the tear possibly repaired. Dr Maguire said that the teres minor injury was unlikely to be treatable and the plaintiff would therefore be left with weakness in relation to that region. For this reason, in July 2006, Dr Maguire referred the plaintiff to Mr M Edwards, upper limb orthopaedic surgeon.

By this time, the plaintiff had had two previous subacromial bursal injections without any relief, but I do not know who performed them or when.
Importantly, Mr Edwards reported to Dr Maguire that physical examination did not demonstrate any significant wasting. The plaintiff had a good range of movement, but mild impingement signs and a strong rotator cuff. His AC joint tests were not positive. The MRI indicated some minor AC joint arthropathy and tendonopathy.
Mr Edwards was of the view that the plaintiff's symptoms were out of proportion to his underlying pathology. He would not proceed to subacromial decompression and AC joint excision in view of the multiple complaints made by the plaintiff and the difficulty in localising his pathology. That was explained to the plaintiff.
Also in mid‑2006, the plaintiff underwent cervical and lumbar injections with only minimal benefit but, he had some ongoing benefit with his Infliximab infusions undertaken at Royal Perth Hospital.
In October 2006, the plaintiff attended at the Sir Charles Gairdner Medical Emergency Department requiring a coronary angiography. He had mild non‑obstructive coronary artery disease which was unlikely to account for his symptoms of chest pain, but which could be explained by his gastro‑oesophageal reflux or similarly by nerve injury as a result of previous trauma to his upper body resulting in thoracic outlet syndrome.
The plaintiff however did have mild abnormalities in his coronary arteries requiring treatment.
In November 2006, the plaintiff was also complaining about his neighbours who caused significant noise, such that it was necessary for Dr Polczynski to write to Homeswest, the plaintiff's landlord, in respect of the plaintiff's neighbouring tenants whose property shared a common wall with his. Dr Maguire also wrote by letter dated 23 January 2007 to Homeswest about the plaintiff's unsatisfactory accommodation. The letter says that the plaintiff had "severe rheumatoid arthritis with secondary problems of a disease known as spondyloarthritis. Extensive surgery has been undertaken to his neck, shoulder and thoracic outlet areas".
In November 2006, a CT scan of the plaintiff's chest indicated viral infection or changes more likely to relate to asthma type symptoms.
In December 2006, the plaintiff attended Mr Bryant Stokes, neurosurgeon. The history given to Mr Stokes was that the plaintiff suffered hypertension and non‑insulin dependant diabetes and that further, on 17 January 2004, the plaintiff suffered the accident the subject of this claim resulting in significant flexion and extension injury to his lumbar and cervical spines. This is a very limited history.
Mr Stokes did not believe that the plaintiff had a surgical condition in his spine and suggested that the plaintiff continue his treatment with Dr Maguire. Some of the dysaesthesia suffered by the plaintiff was the result of his thoracic outlet surgery, but some of it was not.
Also in 2006, the plaintiff was suffering oral health problems and was added to the Endodontic Waiting List at the Oral Health Centre in the School of Dentistry. I cannot, however, see how this is accident related, but nonetheless, the plaintiff provided me a document concerning the same with his bundle.
In 2006, the plaintiff attended Dr R Goodheart, neurologist, but he has not provided a report. The plaintiff says that nothing was revealed upon examination of his "hands".
In December 2006, the plaintiff attended at Sir Charles Gairdner Hospital Emergency Department with chest pain which he had had for the past eight months, but which was becoming worse. The plaintiff was diagnosed with cardiovascular chest pain of an unknown cause and sent home.
On 21 December 2006, Dr Polczynski completed a further Centrelink form stating that the plaintiff suffered "chronic pain syndrome secondary to sero‑negative spondyloarthritis", the onset of which began "years ago" with the diagnosis being confirmed in "2005/2006" by Dr Maguire. The diagnosis is referred to in Dr Maguire's letter to Dr Polczynski dated 6 June 2006 referred to above as "sero‑negative polyarthritis".
Dr Polczynski also said that "the condition got exacerbated by a fall in early 2003" (sic). The plaintiff had "some widespread pains affecting joints and soft tissues/frequent intermittent all limbs. Paraesthesia. Significantly reduced physical capacity". The plaintiff's treatment requirements were Infliximab infusions or strong analgesia (OxyContin) and "due to chronic severe widespread pains, [the plaintiff] is unable to sit, walk, move for prolonged periods of time. He is unable to reach above head level".
In January 2007, Dr Worynski indicated that the plaintiff's complaints, from a gastrointestinal point of view, had "not been too bad" for the previous 12 months. His Crohn's disease was under control with Infliximab infusions. The plaintiff continued to take Nexium given failed fundoplication. He has been taking Nexium since before the accident.
The plaintiff's evidence was that Dr Worynski had later diagnosed him in May 2007 as likely to be suffering diverticulitis following a CT scan of the urinary tract, abdomen and pelvis. However, Dr Worynski has not provided a report as to this and he has never reported as to the connection, if any, between the accident and any of his findings.
In January 2007, the plaintiff attended Mr Jes Judge, urological surgeon, because of intermittent sharp scrotal pain predominantly on the left side during the previous six months. Mr Judge's report indicates that the source of the pain was the plaintiff's "spine", but he does not say anything about this being an accident caused problem. The pain did not commence for some two and a half years after the accident and from the perspective of time, the pain would not appear to have been caused by the accident. The plaintiff had also suffered a haematuria in the previous month, most likely from a ruptured blood vessel in his prostate gland for which it was necessary to undergo cystoscopy under local anaesthetic. That is not said to be accident related.
In March 2007, the plaintiff underwent further radiological examination. He had early degenerative change in the upper cervical spine with mild left foraminal narrowing at C3/4, but no canal stenosis or definite neural impingement demonstrated. He did not have any identifiable left brachial plexus lesion. The lumbar and sacral spines showed early disc and facet degeneration at lower lumbal levels without evidence of canal stenosis, foraminal narrowing or neural impingement. He did however have bilateral L5 pars defects without significant listhesis. A CT scan indicated that there was minor grade 1 L5/S1 spondylolisthesis.
In April 2007, the plaintiff underwent a left shoulder operation, the details of which he provided to me by way of a printout given to him prior to the surgery. This was under the care of Mr H Zandi, orthopaedic surgeon. The printout is headed "Rotator Cuff Impingement and Small Partial Cuff Tears" and refers to arthroscopic bursectomy and release of the coracoacromial ligament. The plaintiff described this as "an arthroscopy". A report on the procedure is not to hand. Two weeks post‑operatively, the left shoulder was progressing well. Therapy was required and the plaintiff needed to be assessed before anything further was considered with respect to the right shoulder. The plaintiff however told me that he was planning to have the same procedure performed on the right shoulder, the cost of which would be covered by HBF.
In April 2007, Mr Quentin Malone, neurosurgeon, reviewed the plaintiff and reported to Dr Maguire.
Mr Malone took a history of the subject accident resulting in compression of the lumbar spine and the development of low lumbar pain progressing into the coccyx and testicular region as well as bilateral inguinal pain. This omits the 1982 work accident and consequential injuries and the plaintiff's July 2003 medical condition. There was no complaint of neck pain resulting from the accident. The plaintiff said in evidence that he told Mr Malone that he had back pain prior to the accident, although that is not reflected in the history related in the report. The MR study on 22 March 2007 was interpreted by Mr Malone as showing bilateral L5 pars defects without listhesis and mild desiccation at the L4/5 and L5/S1 levels only.
Mr Malone thought the first step would be to try and localise the pain and he therefore referred the plaintiff to Dr Finch, whom the plaintiff was, at trial, due to see on 31 July 2007 for the purpose of determining "whether there is a discal aetiology". Contrary to Mr Malone's report, the plaintiff said in evidence that this referral back to Dr Finch was to ascertain which part of his spine was to be fused, given that his sacroiliac joint was "fusing and breaking".
In May 2007, the plaintiff again attended Dr Maguire and was referred for low back injections under screening for sacroiliac pain syndrome with good result. This might also have occurred on 24 April 2007, both appointments being with the Orthopaedic Outpatient Department at Sir Charles Gairdner Hospital. It may be that Dr Finch performed these injections after the plaintiff saw Mr Malone and that he did so in conjunction with Dr Maguire.
As noted, the plaintiff did not call any oral evidence from any witness, other than his own testimony. All of the information which I have outlined above has been obtained by me from copy reports handed to me by the plaintiff and the defendant's counsel at the commencement of the trial and from the plaintiff's testimony. The defendant's counsel did not object to the receipt into evidence of the plaintiff's bundle of documents.
I invited the plaintiff to apply for an adjournment to enable further oral evidence or further written evidence by way of medical reports to be provided, however, he declined that invitation.
I do not have an up to date report from Dr Polczynski. Further, I do not have reports from the plaintiff's specialists apart from Dr Harper outlining the full accident injuries suffered by the plaintiff and the details of treatment for those injuries, or indeed for non‑accident related medical conditions from which the plaintiff suffers and the treatment therefore. In particular, I do not have a substantive report from Dr Maguire who has apparently provided the plaintiff with a diagnosis of his medical condition, being "sero‑negative polyarthritis", or "severe rheumatoid arthritis" or "sero‑negative rheumatoid arthritis".
The defendant called Dr J D H Bell, orthopaedic surgeon. The plaintiff consulted Dr Bell for medico‑legal review in February 2006. The plaintiff confirmed that he had had low back problems since his work accident in 1982 and neck problems since 2000, together with hypertension, non‑insulin dependant diabetes mellitus, cholesterol problems, abdominal discomfort from peptic ulcers around 1990, psoriasis and sero‑negative rheumatoid arthritis. The plaintiff told Dr Bell that he had not worked since July 2003.
The plaintiff told Dr Bell that he had lost 15 kilograms in weight during the period leading up to the accident. Since the accident he has had aches, mainly in his low back and neck and also around his stomach.
The plaintiff had a repeat right carpal tunnel release in 2004 and on the left side in March 2005 when, at the same time, a left thoracic outlet operation also occurred.
The plaintiff said that it was the low back pain which was the worst, followed by the neck with aches going into the upper limbs and into the fingers on the left hand. The low back pain had been worsening.
The plaintiff gave a history of the removal of a benign tumour in the stomach wall, subsequent incisional hernias requiring mesh repair, two operations on his urological system, a prostate operation and a further operation with respect to cancer of the bladder which was probably benign. He had also had Crohn's disease.
The plaintiff related his low back, neck and lower abdomen symptoms to the accident. Dr Bell, however, noted that on the history provided to him, all of these were present to a considerable extent prior to the accident.
Dr Bell reviewed all available radiological investigations. It was, however, observed by Dr Bell that the December 2003, August 2004, December 2004, June 2005 and February 2006 scans indicated bilateral L5 pars defects which were non‑active and probably of no great significance. Presumably, the plaintiff had facet joint inflammation over the lowest three mobile segments. Dr Bell also thought that the August 2004 whole body scan "suggested" sacroiliitis and spondylitis as did Dr Bower. His comment of course contradicts Dr Polczynski's comment of this scan showing that the plaintiff's situation had "changed dramatically" since the investigations by Dr van der Schaaf in November 2003.
Dr Bell also reported that the MRI of the shoulders from 1 June 2006 indicated features which were not particularly abnormal for a person of the plaintiff's age. No radiculopathy was present in the neck or shoulders. His symptoms were musculotendinous and ligamentous in nature. The plaintiff's tendon problems related to his nutrition and lifestyle.
In Dr Bell's opinion, it was difficult to assess any specific ongoing health problem which is significantly and largely related to the plaintiff's accident. The plaintiff reported an aggravation of his underlying low back pain problems, aggravation of his underlying neck and upper back problems, aches in his hands and elbows and aches in his lower abdomen. He did not report any problems with the shoulders.
Dr Bell thought the plaintiff could commit to a programme of improving muscle tone, flexibility, circulation and a weight control programme and improved nutrition. Future treatment was suggested as being conservative, with spinal education and exercise programmes under the guidance of doctors and physiotherapists for a year or two. The plaintiff was capable of most light duty activities, including light duty work which, if light enough, could be on a full‑time basis. He did not believe the plaintiff was left with any degree of permanent disability in his spine or limbs related to the accident.
Dr Bell queried the diagnosis of sero‑negative rheumatoid arthritis. The plaintiff had had low mechanical back pain since 1982.
In terms of the thoracic outlet syndrome operation, Dr Bell indicated that such is not normally successful whilst a compensable claim is yet to be finalised. The result of the operation was what Dr Bell expected. Indeed, he was of the view, that, the plaintiff suffers a disease conviction and illness behaviour. The plaintiff was not stoical in his presentation.
During the trial, a film was shown of the plaintiff walking, standing and watering his garden and aerating the soil. He walked at a mild to moderate pace. These activities were undertaken with ease and although they were mild and gentle activities, they did somewhat, according to Dr Bell, contradict the history which the plaintiff gave to Dr Bell. Dr Bell was of the view that the film supported his views that the plaintiff has a significant degree of disease conviction.

The plaintiff's evidence

Apart from matters already noted, the plaintiff told me that during 2002 to 2003, he was becoming very tired and depressed. He was referred to Dr Szudaj, whom the plaintiff told me was a psychiatrist. Dr Szudaj has not provided a report. Dr Czajko also treated him for depression by prescribing Effexor and subsequently increasing his daily dose. The plaintiff said however that he ceased taking Effexor in September 2003 and began feeling much better. In evidence, he said that he had never been depressed. Rather, he said that depression had been an assumed diagnosis because of the plaintiff's son's tumour. He also said that he was not depressed following his marriage breakdown, as his wife "had a boyfriend". The plaintiff saw Dr Czajko twice after the accident, but he has not provided a report.
The plaintiff said in his evidence‑in‑chief, that, he had not had any pre‑accident cervical or thoracic problems. His pre‑accident lumbar pain was limited to the left side, but now it extends to the right side.
The operation performed by Dr Zandi on the left shoulder was successful such that, he is to undergo the same operation on his right shoulder.
In order to cover his future medical expenses, the plaintiff has joined HBF and has taken out the most expensive insurance available. He seeks to recover the cost of his health insurance membership.
The plaintiff advised that he can only sleep with the aid of painkillers for four or five hours per night and that it is necessary to attempt an afternoon sleep, but usually he does not sleep. He is now only able to lift small shopping bags and cannot run. Lifting causes pain in his shoulder, elbow, back and wrists. He is now taking OxyContin and Panadeine Forte. He is not taking as much Panamax as previously.
The plaintiff said, that, when seeking the disability pension in 2003, he indicated certain things in his application "not knowing" whether they were true. He claimed that he became better between August and December 2003. He said he had psoriasis from 1974.
The plaintiff also said that Dr Maguire's view is that he does not have psoriatic arthritis and that he no longer has reflux.
There is no reference in the original statement of claim to the plaintiff suffering an injury to his shoulder. The plaintiff's unlikely explanation for this is, that, his solicitor told him that if there was a claim for everything, then, the defendant's solicitors would not believe that the claim was true.
The plaintiff told me in cross‑examination, that, before his accident in January 2004, he was walking and jogging and bench pressing 85 kilograms, and lifting 105 kilograms. He was planning to go into heavy machinery driving or work in Perth or to go back to curtain fitting, but that was less likely. He thought he might go to work on a mine site, drawing on his experience from working in a heavy labouring position when he first arrived in Australia. He had not done anything about these plans by the time of his accident, apart from discuss them with Dr Polczynski and his sons.
The statement of claim does not seek damages for loss of earning capacity, either past or future. In his letter dated 12 April 2007 to the defendant's solicitors, the plaintiff presented his claim seeking damages for his loss of earning capacity. He claimed that he had instructed his former solicitors to seek economic loss. The plaintiff also wrote to the defendant's solicitors on 10 May 2007 regarding his plans to work full‑time, or even part‑time on the disability pension, which he says he is now not able to do because of his accident caused injuries. These letters are included in the amended papers for the Judge.
In cross‑examination, the plaintiff said that he told his former solicitors about his plans to return to work, but apparently, his solicitors said that if he had not been earning much income prior to his accident, then it was not important what he planned to do in terms of his future income because he was not earning much and it was not worth pursuing. He had only worked part‑time up to 2003. He planned to return to work earning at least $140 per fortnight without affecting his pension. He does not have any copy tax returns or copies of any work records at any time from his subcontract curtain fitting work.
The plaintiff said that he did undertake curtain fitting between 1995 and 2003. He was unable to say how long he worked each day, but he worked every day if he could. He said that the work was "up and down". In answer to questions from me, he was not able to advise the name of his accountant on the first and second days of the trial and despite being requested by me to obtain financial information from his accountant on those days, the plaintiff indicated on the second and third days that he had not attempted to obtain such information. He did, however, on the third day, name his accountant as Ken Thomas.

I should add here that I found the plaintiff's evidence to be lacking in credibility. This can be seen from his disclosures to Centrelink "not knowing" whether they were true and his claim to have effected a recovery in both his physical and psychiatric conditions between July 2003, when he obtained the disability pension and January 2004, when he suffered his accident. Such claim is not supported by any medical evidence in circumstances where, had the claim been true, then, Dr Polczynski at least could have reported upon it. Then, there is the plaintiff's unlikely explanation as to why his solicitors did not plead injury to the plaintiff's shoulders in the accident and seek either past or future economic loss.
Further, the plaintiff has not provided an accurate history of himself when presenting to doctors for review and management. In this respect, for example, he said in evidence that he had told Dr Bell of his shoulder injuries and he cross‑examined Dr Bell about it, suggesting that Dr Bell had simply not made a note of it. Dr Bell however produced some five or six pages of handwritten notes of the information provided to him by the plaintiff and said that the plaintiff did not present with any shoulder problems. This follows Dr Harper not reporting any shoulder concerns of the plaintiff and yet, Dr Harper and Dr Bell are the only two medicos to have reviewed the plaintiff by way of medico/legal review.
I also note Mr Edwards' report that the plaintiff's symptoms were out of proportion to his underlying pathology. Contrary to the plaintiff's claim that Mr Malone referred the plaintiff to Dr Finch to ascertain what part of his spine was to be fused, given that his sacroiliac joint was "fusing and breaking", Mr Malone reported that such referral was to determine "whether there is a discal aetiology". This leads to the conclusion that the plaintiff was prepared to embellish his true circumstances.
There are other examples of the plaintiff making certain claims as to his alleged accident caused condition which are not supported by the medical reports and upon which I have made comment elsewhere in these reasons. Further, the medical reports indicate that the plaintiff has not provided an accurate history on a number of occasions.
I must also have regard to the fact that the plaintiff has never filed a tax return since at least he began curtain fitting, if not before. He said that he had an accountant, but the plaintiff could not name him until the third day of the trial. The plaintiff ignored my requests during the trial to approach the accountant in order to obtain details of his curtain fitting earnings so that there would be some basis upon which to found the claim for economic loss.
Finally, I note that during the trial over three days, the plaintiff did not appear to have all of the physical problems he would suggest that I compensate him for and this view is supported to some extent by the film evidence and Dr Bell's commentary upon that film, which I accept.

Loss of amenities

The plaintiff is, of course, entitled to compensation for his accident caused injuries, pain and suffering and loss of enjoyment of life. Given the pre‑accident medical conditions, the plaintiff is only entitled to compensation to the extent that the accident has made those conditions worse. If those pre‑accident conditions would have become worse in any event due to the natural progression of symptoms over time, but that worsening has been brought forward in time from its natural progression, then, compensation is generally limited to cover only that acceleration in time, if that can be identified. In a case such as this, the starting point is therefore to separate the plaintiff's pre‑existing medical conditions from the injuries alleged to have been suffered by him in the accident.
Before undertaking this task, it is necessary to remember that this is a civil case in which the plaintiff claims damages for personal injury arising from the accident. It is therefore the plaintiff, Mr Raczka, who carries the onus of proving those accident caused injuries and/or the exacerbation/acceleration of pre‑accident medical conditions and their consequences. The burden upon the plaintiff is proof upon the balance of probabilities, that is, that it is more probable than not that the plaintiff suffered the accident caused injuries and/or the exacerbation/acceleration of pre‑accident medical conditions as alleged by him, together with the consequences that flow from those injuries and/or the exacerbation/acceleration of pre‑accident medical conditions.
Usually, proof is achieved by the plaintiff calling evidence of the accident and the injuries which he or she alleges were suffered in that accident. Sometimes those injuries may be obvious to the eye such as a laceration causing blood loss about which evidence can be given by the plaintiff, any eyewitness, ambulance drivers and treating doctors. Sometimes, however, injuries will not be obvious to the eye, such as a cervical soft tissue whiplash injury in a motor vehicle accident, where evidence will need to be provided by the plaintiff and by his or her treating medical advisers. Such a case may frequently depend, to a significant degree, upon an assessment by the trial judge as to whether the plaintiff is or is not a credible witness.
However, whether the injuries suffered in any accident are or are not obvious to the eye, it is usual for both the plaintiff and his or her medical advisers to give oral evidence about the plaintiff's injuries and complaints following an accident, together with evidence about their treatment and consequences. It is not usually sufficient for medical reports to be tendered into evidence without oral evidence from the relevant doctors who, ordinarily, will explain medical reports and clarify any matters of difficulty. By calling doctors to give oral evidence, the plaintiff can prove his or her accident injuries and their consequences.
Requests for medical reports usually ask all treating doctors to identify, amongst other things, any pre‑accident condition, injuries suffered by the plaintiff in the accident, the treatment received for such injuries, and the likelihood, if any, of permanent disability arising from those injuries. Doctors are also usually asked to identify whether any pre‑accident medical condition has been exacerbated and if so, to what extent. Likewise, doctors are usually asked to comment on whether any pre‑accident condition has been accelerated or brought forward in time and if so, by what time. It may not be possible to answer this last question, but, the doctor can at least comment on the issue.
Absent such reports with full information, one problem facing the plaintiff is that he did not call his medical advisors to give oral evidence. Only he gave oral evidence to support his case. The end result is that there is either conflict or at least difficulty reconciling medical reports and a lack of proved medical facts relating to the plaintiff's pre and past accident conditions, such that it cannot be said that facts which the plaintiff assumes to be proven are in fact proven. On the contrary, many matters have not been proven.
Further, most of the reports are reports from specialist medical practitioners to other doctors reporting only the contemporaneous diagnosis and/or treatment being provided by them to the plaintiff. They are therefore of limited value as distinct from the reports of Dr Polczynski, Dr Harper, Dr Adams and Dr Bell which are the only reports to solicitors for the purpose of providing what would ordinarily be the foundation of their oral evidence at trial. Dr Polczynski's report is written as a treating general practitioner and Dr Adams is probably the same. However, Dr Harper and Dr Bell were the only specialists consulted by the plaintiff for medico/legal review.
It follows that when, for example, Dr Adams wrote that the plaintiff's condition "may" have deteriorated, such terminology does not prove that deterioration was caused by the accident. Further, for a doctor to say that the plaintiff has a medical condition without more does not prove that the medical condition was caused by the accident.
Another example of difficulty in proceeding solely on medical reports is that when Dr Polczynski referred to the plaintiff's pre‑accident spondylolisthesis as "advanced" and Mr Narula described it as "mild", then, in the absence of oral evidence and explanation from each of those doctors, and perhaps other doctors and the plaintiff, it is simply not possible to determine which report should be accepted as being correct. The doctors who wrote such reports have not been tested in cross‑examination. On one view, Mr Narula's opinion should be preferred simply because he is a specialist neurosurgeon and Dr Polczynski is a general medical practitioner. But such an approach is not always the correct approach.
There is then another complicating problem in this case and that is that Dr Polczynski wrote reports to Centrelink on 7 July 2003 and to the plaintiff's former solicitors dated 31 May 2005. Those reports are difficult to reconcile with each other in certain respects. The later report is difficult to accept for the reasons I have already expressed. Then, on 21 December 2006, Dr Polczynski advised Centrelink that the plaintiff's condition was sero‑negative spondyloarthritis which had been exacerbated by the accident. She had not previously referred to this condition. The change in diagnosis, if any, but at least in terminology, has not been explained.
Yet another problem is that Dr Maguire has not provided any report setting out his ultimate diagnosis and, more importantly, the reasons for that diagnosis in so far as it relates to the plaintiff's pre‑accident condition, his accident injuries and the effect of these injuries on his pre‑accident condition.
Dr Maguire's report of 6 June 2006 refers to "sero‑negative polyarthritis", yet his letter dated 23 January 2007 to Homeswest apparently contradicts this by referring to "severe rheumatoid arthritis". The Severe Arthritis Clinic termed it "sero‑negative rheumatoid arthritis". Had Dr Maguire given oral evidence, then, presumably he could explain the difference, if any, between these conditions, such that it may well be that there is no real difference at all.
Still further, this is complicated because the plaintiff had his condition, whatever it is, prior to the accident, yet I do not know from Dr Maguire the extent to which the condition has been exacerbated or accelerated in progression by the accident. Dr Maguire may not be able to express an opinion on the plaintiff's pre‑accident condition. This lack of a report is all the more important given my finding with respect to Dr Polczynski's report dated 31 May 2005.
I should note, that, when I say that Dr Maguire has not provided a report, I do have a copy report dated 6 June 2006 from him to Dr Polczynski in which he refers to "Problem 1, sero‑negative polyarthritis". Dr Maguire's report deals with cervical and lumbar injections and Infliximab infusions and I have outlined its contents above. The report does not explain this diagnosis or even state that such is the diagnosis, although I think that I can at least infer such diagnosis from that report, save that it was apparently contradicted at least by its technical name in January 2007. The report dated 6 June 2006 does not provide a patient history. It certainly does not relate the diagnosis to the accident, or indeed to anything. This is not a criticism of Dr Maguire, for the report is simply a report of ongoing treatment from a specialist to the patient's referring general medical practitioner.
Given this scenario, I had resort to the Oxford Concise Medical Dictionary 6th Edition which offers the following definitions:
(i)"spondyloarthritis: inflammation of the synovial joints of the backbone."
(ii)"psoriatic spondyloarthritis: arthritis associated with psoriasis. It occurs in only a small minority of patients with psoriasis but may be painful and disabling. It often affects small joints, such as the terminal joints of the fingers and toes, or the spine (spondylitis) and the sacroiliac joints (sacroiliitis)."
(iii)"spondylolisthesis: a forward shift of one vertebra upon another, due to a defect in the bone or in the joints that normally bind them together. This may be congenital or develop after injury. The vertebral displacement is most likely to occur in the lumbar (lower back) or cervical (neck) regions of the backbone. The majority of cases in which pain is present are treated with rest and a surgical belt or corset; in a small minority, showing severe disability or pressure on nerve roots, surgical fusion may be required."
(iv)"sero‑negative arthritis: an arthritis in which rheumatoid factor is not present in the serum."
(v)"rheumatoid arthritis: the second most common form of arthritis (after osteoarthritis). It typically involves the joints of the fingers, wrists, feet, and ankles, with later involvement of the hips, knees, shoulders, and neck. It is a disease of the synovial lining of joints; the joints are initially painful, swollen, and stiff and are usually affected symmetrically. As the disease progresses the ligaments supporting the joints are damaged and there is erosion of the bone, leading to deformity of the joints. Tendon sheaths can be affected, leading to tendon rupture. Onset can be at any age, and there is a considerable range of severity. Women are at greater risk. Rheumatoid arthritis is an autouimmune disease, and most patients show the presence of rheumatoid factor in their serum. There are characteristic changes on X‑ray. In the early stages there is soft tissue swelling and periaricular osteoporosis; late stages are characterized by marginal bony erosions, narrowing of the articular space, articular destruction, and joint deformity."
(vi)"polyarthritis: disease involving several to many joints, either together or in sequence, causing pain, stiffness, swelling, tenderness, and loss of function. Rheumatoid arthritis is the most common cause."
(vii)"poly: prefix denoting 1. many; multiple. 2. excessive. 3. generalized; affecting many parts."
(viii)"arthropathy: any disease or disorder involving a joint."
(ix) "sacroiliitis: inflammation of the sacroiliac joint. Involvement of both joints is a common feature of ankylosing *spondylitis and associated rheumatoid diseases including *Reiter's syndrome and *psoriatic arthritis. The resultant low back pain and stiffness may be alleviated by rest and anti‑inflammatory analgesics."
These definitions of sero‑negative arthritis and rheumatoid arthritis and polyarthritis are relatively self‑explanatory, yet the ability to co‑exist or not could be explained no doubt by say, Dr Maguire. Suffice it is to note however that "most patients" with rheumatoid arthritis "show the presence of a rheumatoid factor in their serum", but this rheumatoid factor "is not present in the serum" of a patient with sero‑negative arthritis. Perhaps, however, the plaintiff has both, as the Severe Arthritis Clinic wrote to Dr Maguire on 30 September 2005 referring to a diagnosis, amongst other diagnoses, of "sero‑negative rheumatoid arthritis".
To deal then with further issues associated with the plaintiff's claim in trying to assess loss of amenities there are the following matters:
(i)Dr Polczynski reported that the plaintiff suffered thoracic outlet syndrome.
(ii)Mr Narula provided surgery on the left side for thoracic outlet syndrome. Although the plaintiff initially gained relief from this surgery, his left arm symptoms returned. The subsequent EMG did not reveal any neurogenic thoracic outlet syndrome and so Mr Narula was not sure of the cause of the left arm symptoms. Therefore, the plaintiff may not have had left side thoracic outlet syndrome at all. Oral evidence from Mr Narula might have resolved this difficulty for the plaintiff.
(iii)Mr Teasdale was not convinced that the plaintiff suffered thoracic outlet syndrome.
(iv)Dr Bell said that thoracic outlet syndrome surgery is usually not successful whilst a compensable claim is yet to be finalized and he indicated that disease conviction and illness behaviour were at play here.
(v)On the basis of the totality of this evidence, it cannot be said that the plaintiff has proved to the required standard that he actually suffered from thoracic outlet syndrome, the surgery for which was performed at the same time as the left carpal tunnel release surgery. However, such surgery was undertaken in good faith early in the history of this matter before Mr Teasdale and Dr Bell provided their opinions. I am therefore prepared to allow compensation for such surgery.
(vi)Dr Polczynski reported that the plaintiff suffered a right shoulder problem.
(vii)The plaintiff sought physiotherapy in 2004 for his shoulders, hips, knees and lower back. The physiotherapist reported as to the plaintiff's "global issues" seeking "legal compensation".
(viii)The plaintiff complained of shoulder pain to Mr Alexeeff, who found bilateral acromio‑clavicular joint arthropathy although provocation testing was equivocal. The rotator cuffs were intact. He did not relate this to the accident. Dr Carroll thought that the shoulder symptoms were only "moderately troublesome".
(ix)Mr Edwards thought that the shoulder symptoms complained of were out of proportion to the underlying pathology.
(x)Such shoulder problems were not reported to Dr Bell, who said that the features relating to the plaintiff's shoulders were not particularly abnormal. All the shoulders needed were isometric exercises. Neither were shoulder problems reported to Dr Harper.
(xi)In April 2007, Mr Zandi successfully performed a left shoulder arthroscopy on the plaintiff. The same procedure is to be performed on the right side in due course, provided that the left side continues to respond well to that surgery.
(xii)The reason for the operation performed by Mr Zandi is not apparent.
(xiii)There is conflict in the evidence as to injuries to the right shoulder or shoulders. Dr Zandi's routine procedure ie, arthroscopy may well have been required for someone of the plaintiff's age in any event. It is to be observed that the plaintiff suffers degeneration as reported by Dr Bell, such being "the ageing process". In the end, oral evidence may have clarified the position, but I am prepared to accept that the plaintiff has proved his case with respect to the shoulders suffering a minor strain injury in the accident, following the report of right shoulder injury to Dr Polczynski and the need for physiotherapy on both shoulders, but that is all against a background of the plaintiff seeking compensation. I am not satisfied that the plaintiff has proved his case that the shoulder injuries beyond a short period of time and either the left sided arthroscopy or the proposed right sided arthroscopy are accident related, especially given the reports of Dr Carroll, Dr Alexeeff, Mr Edwards, Dr Harper and Dr Bell.
(xiv)The plaintiff did not report a neck injury to Dr Polczynski. The alleged neck injury was first reported in August 2005 to Dr Harper to whom the plaintiff said that he "had jerked his neck" in the accident, which is different to his evidence in which he said that his "head struck the ground". There is no photograph, as there was of his legs showing abrasions, of any head or facial abrasion or other wound, if any, which may have been caused by the plaintiff's head striking the ground. In any event, the plaintiff told Dr Bell that he had had neck problems since around 2000. For these reasons, I cannot be satisfied that the plaintiff has proved that he suffered a neck injury in the accident.
(xv)The plaintiff had a work injury in 1982 which left him with acute on chronic low back pain, for which Dr Polczynski reported that he was offered a spinal fusion which he declined. This may be only a hearsay report of what the plaintiff had told her, as she was first consulted by him in April 2003. Nonetheless, the plaintiff's low back problem was a significant reason for him being granted a disability pension in July 2003. This must be relevant to the plaintiff's condition in January 2004, when the accident occurred.
(xvi)The plaintiff said in evidence that he took his last Effexor in September 2003. That had been prescribed for his depression, which was long standing, over six to seven years as advised to Dr Street. The plaintiff claimed however that depression was only an assumed diagnosis, but this claim was not supported by any medical evidence. He said that once he ceased taking Effexor, then his psychiatric and physical health both improved, such that his evidence was that he was bench pressing 85 kilograms and lifting 105 kilograms (or only lifting 65 kilograms as reported to Dr Harper). It is to be remembered that in July 2003, Dr Polczynski reported to Centrelink that the plaintiff could not lift 5 to 7 kilograms without pain.
(xvii)There is no medical or other independent evidence to support this alleged improved condition from the plaintiff. It would be surprising if he could recover so quickly in both psychiatric and physical wellbeing as claimed. Dr Polczynski did not report any improvement in his condition between July 2003 and the accident in January 2004. There were over 50 prescriptions from Dr Polczynski dispensed for the plaintiff during this period, and so, the inference can be drawn that she saw him at least from time to time during this period.
The plaintiff said that he told Dr Polczynski, during this period of his plans to return to the workforce, and had she given evidence, she could have clarified whether he did tell her or not and whether the plaintiff's condition had improved or not. She did not refer to this in her report to the plaintiff's solicitors.
(xviii)Dr Harper reported that the plaintiff told him that, prior to the accident, the plaintiff's health had improved although he "still had some left low back pain", but there is no report that the plaintiff told him that he had intended to return to work prior to the accident. One would think that if he had such an intention, then that would have been disclosed to Dr Harper. It was not disclosed to Dr Bell.
(xix)In the circumstances, I cannot accept the plaintiff's claim of improvement absent medical confirmation of such fact which could easily have been provided by Dr Polczynski, if indeed it was the case. Rather, this evidence seems to have been recently concocted to bolster this claim.
(xx)I would add here that Dr Harper's opinion is of course based on the history given to him and that included the plaintiff's improved health leading up to the accident together with the fact that the plaintiff had not had any prior injury or accidents to his neck, arms and middle back prior to the subject accident. Dr Harper does not include a reference to the 1982 work accident. In other words, the plaintiff did not inform Dr Harper of the fact of his serious 1982 work accident. Rather, he told Dr Harper that he had worked from 1981 until 2003.
For these reasons, Dr Harper's opinion that the accident has prevented the plaintiff from returning to work cannot be relied upon.
(xxi)Dr van der Schaaf found limited degeneration which did not account for the plaintiff's symptoms. Dr Bower's report does not reveal any real advance in degeneration after the accident. Dr Carroll did not support the presence of psoriatic arthritis. Mr Alexeeff did not think that the plaintiff suffered psoriatic arthropathy, following Dr Carroll. Dr Bell's review of all radiological investigations led him to say that the plaintiff did not suffer any significant abnormality.
(xxii)Dr Ker apparently accepted sero‑negative rheumatoid arthritis because Dr Maguire had diagnosed it, but it does not appear from his report that he himself undertook any formal testing. He did, however, refer in his report to the plaintiff's "longstanding back pain as a consequence of the 1981 incident of injury, he also has evidence of additional pre‑existing arthritic disease".
(xxiii)Mr Stokes simply referred the plaintiff back to Dr Maguire because the plaintiff did not have a surgical condition in his spine.
(xxiv)Mr Malone required the site of the plaintiff's back pain to be identified before he would undertake any treatment.
(xxv)The plaintiff was not referred back to Dr P Finch by Mr Malone to ascertain which part of the spine was to be fused, as alleged by the plaintiff, but for the determination of disc aetiology, if any.
(xxvi)The plaintiff has also suffered non‑accident health issues including the neck, dental, heart, scrotal and sexual dysfunction problems.
(xxvii)Radiological examination of the plaintiff's cervical and lumbar spines and left brachial plexus in March 2007 reveal early spinal degeneration and no brachial plexus lesion.
(xxviii)The plaintiff suffered pre‑accident gastrointestinal problems ie, reflux perhaps by reason of non‑steroidal anti‑inflammatory agents taken for his condition which induced such gastrointestinal problems which pre‑dated the accident and have since been brought under control by Dr Worynski. I am not persuaded that the plaintiff suffered any extra gastrointestinal problems by reason of the accident.
(xxix)Dr Polczynski saw the plaintiff before and after the accident. Her evidence would therefore have been instructive to resolve the difficulties to which I have referred in her report of 7 July 2003 to Centrelink and her report dated 31 May 2005 to the plaintiff's former solicitors. Her evidence could also have resolved her apparent change in diagnosis to Centrelink dated 21 December 2006.
(xxx)As noted above, I do not have the benefit of any detailed report from Dr Maguire and I did not receive any oral evidence from him and yet, his diagnosis of sero‑negative polyarthritis and/or rheumatoid arthritis is important. To have received evidence from Dr Maguire in this respect would hopefully have clarified matters even further.
(xxxi)Ideally it would have been preferable to receive evidence from each of the doctors to explain their findings and reasons so that the issues in this case could have been clarified and resolved.

The plaintiff represented himself at the trial and he was the one who cross‑examined Dr Bell, who was the only doctor to give oral evidence. This was of limited benefit to the plaintiff. Dr Bell was cautious, careful and deliberate when giving his evidence in terms which he no doubt hoped would be clearly understood by the plaintiff. Dr Bell was not contradicted by any other oral evidence. I found Dr Bell to be credible and persuasive and I have no reservation in accepting his evidence.
Dr Bell's opinion is that it was difficult to assess any specific ongoing health problem which is significantly and largely related to the accident. The plaintiff had of course undergone the bilateral carpal tunnel release surgeries and the thoracic outlet syndrome surgery by the time he saw Dr Bell. Dr Bell referred to the plaintiff's "ageing process". The plaintiff is now 52.
The plaintiff related a history to Dr Bell of his pre‑accident conditions and Dr Bell reviewed all available radiological investigations since December 2003. He said that these were of no great significance and in many respects revealed what might ordinarily be expected from someone of the plaintiff's age. The plaintiff has multiple health problems, many of which pre‑date, and do not relate to, the accident.
I do not know from Dr Maguire what the plaintiff's precise arthritic condition is, nor do I know from Dr Maguire that any pre‑accident arthritic condition has in fact been exacerbated or accelerated by the accident.
Dr Polczynski has said that the plaintiff's pre‑accident condition has been exacerbated by the accident, but she has not sought to suggest to what extent the condition has been exacerbated, save to say in May 2005 that "his widespread pains consistent with polyarthritis remain in close relationship with the accident". She also said that his psoriasis related spondyloarthropathy had "changed dramatically" since the accident. I have already commented upon this. However, Dr Polczynski's opinion would seem to have been contradicted by Dr Harper who was only prepared to say that there were strain injuries superimposed upon pre‑existing spinal degeneration which "may" have been aggravated in the accident.
As I have indicated above, it is difficult to place any weight on Dr Polczynski's report. She did however report that she "strongly believed" the plaintiff's widespread inflammation would subside with time. This is not inconsistent with Dr Bell's evidence in that by February 2006 ie, two years after the accident and nine months after Dr Polczynski's report, that it was difficult to assess any specific ongoing health problem related to the accident. The strain injuries identified by Dr Harper had no doubt resolved by then. It is also consistent with medical evidence relating to the shoulders, namely the need for early physiotherapy, but subsequent investigations by Dr Carroll, Mr Edwards and Mr Alexeeff showed that early symptoms had subsided with time, although there may have been some arthropathy in the AC joint, but that has not been shown to be accident related. Indeed, its cause is not stated. Shoulder problems were not reported to Dr Harper and Dr Bell. If shoulder symptoms returned to the extent of requiring an arthroscopy performed by Dr Zandi, then, that is most probably because of natural progression of the plaintiff's pre‑accident condition.
I have previously outlined the plaintiff's pre‑accident medical conditions which were diagnosed and reported upon prior to the accident. Given the mechanism of the accident as described by the plaintiff, with his right leg entering the drain and his two hands striking the ground in order to break his fall but, as he alleges not doing so sufficiently, such that his head struck the ground, I am prepared to accept that the accident caused the plaintiff to proceed with surgery to release his right sided carpal tunnel syndrome and that the accident aggravated his left sided carpal tunnel syndrome such that it too required release surgery earlier than might otherwise have been necessary. In saying this, it is to be noted that the plaintiff already had the right sided carpal tunnel syndrome prior to the accident, such that the accident did not cause the need for such surgery, but more probably, it induced the plaintiff to proceed with such surgery. I will allow compensation for this bilateral surgery, thoracic outlet surgery and epicondylitis.
I am further prepared to accept that there was some exacerbation of the plaintiff's pre‑accident arthritic condition by way of a strain injury to the plaintiff's thoracic and lumbar spines for a limited period time before it subsided. I also accept a short term injury to the plaintiff's shoulders requiring physiotherapy. Otherwise the plaintiff's pre‑accident condition has been progressing due to natural causes. The plaintiff has not proved that there was any further exacerbation, aggravation or acceleration in the progression of his pre‑existing condition.
Doing the best I can, I will allow $35,000 for loss of amenities to include compensation for the period of exacerbation and strain together with the plaintiff's bilateral carpal tunnel surgeries, epicondylitis and his thoracic outlet syndrome surgery. This award then needs to be reduced by the sum of $14,500 pursuant to the Civil Liability Act 2003, thus leaving the sum of $20,500.

Travel and sundry out of pocket expenses

The plaintiff provided a copy of petrol expenses for what appears to be the month of May 2007, moving into June 2007. This alone does not determine a claim for travel expenses. What is required is a log of travel to and from medical appointments, as well as all other travel details, so as to identify the kilometres of travel to medical appointments as caused by the accident. Even if only mileage is recorded, the cost of such travel for motor vehicles of a given size can be determined by reference to a set rate per kilometre for cars of four or six cylinders. The plaintiff has not kept a log.
Further, accepting that the accident caused an exacerbation of the plaintiff's pre‑accident condition, then it could follow that there was perhaps no real need for any extra travel at all by reason that the plaintiff would still be incurring travel costs in any event in respect of his pre‑accident condition without any exacerbation. However, there is still the cost of travel associated with the surgeries and physiotherapy to which I have referred.
The plaintiff seeks reimbursement for a new pair of shoes destroyed in the accident. He said that the cost was over $200, but no other proof was offered. A letter dated 7 June 2007 to the plaintiff's solicitors put the cost at $185. There is no other pleading to support this claim and no independent evidence of loss, but I will partially allow it.
In the circumstances, I propose to allow an amount for travel and out of pocket expenses of $500, assessed globally to include interest.

Past medical expenses

The plaintiff has incurred the cost of a TENS machine at approximately $370, including, batteries. The TENS machine might have been required in any event even without the accident. The plaintiff has not proved that the need for this machine was caused by the accident, save that it was purchased after the accident.
The plaintiff has also provided a Medicare printout of his medical expenses. However, this printout merely states that on certain dates, the plaintiff attended certain doctors and the charge for each attendance is identified, together with the Medicare benefit allowed. It is impossible to know from this list what is accident related and what is not. For instance, I cannot tell from the printout which attendances on Dr Polczynski relate to the accident and which relate to non‑accident medical conditions.
The printout indicates that the total cost of the plaintiff's medical expenses since the accident is $27,065.55. He paid $1,538.28 by way of gap fees. The defendant accepts that it is reasonable to allow some proportion of the gap fee to reimburse the plaintiff for his accident related expenses for treatment outside the hospital system. The plaintiff has not sought to identify the costs of surgery and after care relating to the carpal tunnel syndrome and the thoracic outlet syndrome.
The plaintiff also provided a printout of his pharmaceutical expenses from 14 April 2003 to 23 March 2007. These reveal that the plaintiff's pre‑accident medication averaged $10.75 per month and that his post‑accident medication averaged $10.29 per month to 15 October 2004, after which, this increased to an approximate $48 per month. However, this increase cannot all be attributed to the accident.
I will allow a global allowance for post‑medical expenses of $1,250 to include interest.

Future medical expenses

The problem here on the plaintiff's case is to determine the extent to which the plaintiff will be required to take medication in the future that he would not have been required to take had he not had the accident. This is complicated by the likelihood that even without the accident, the plaintiff would in due course have been required to take extra medication in any event as his pre‑accident condition worsened over time. The plaintiff has simply not called any evidence to prove this aspect of the case, save that Dr Polczynski and Dr Harper reported that his pre‑accident condition has been exacerbated. Indeed, I have found that the plaintiff's exacerbation of his pre‑accident condition was for a limited time such that there is no basis for a future claim.
I will not make any allowance.

Past and future economic loss

To recover economic loss, the plaintiff must show that his earning capacity has in fact been diminished by reason of the accident injuries and he must also show that his accident injuries have been productive of financial loss – see Medlin v State Government Insurance Commission (1994‑1995) 182 CLR 1 at 3. This requires the plaintiff to prove the extent of his pre‑accident earning capacity, the extent to which that capacity would have been productive of income had the accident not happened, and the extent to which the compensable injuries have diminished his ability to exercise his pre‑accident earning capacity – see Giorganis v Kastrati (1989) A Tort Rep 80‑233 at 68,463.
The plaintiff stopped work in 1982 after an industrial accident. He did not work again until 1995 when he began contract curtain fitting which he ceased, he says, in 2003. He must have stopped, at least for some time, in 2000 when he received the sickness benefit. He has never completed a tax return. He declined my request to obtain details of his curtain fitting income from his accountant. There is simply no evidence of curtain fitting income, if any, or any pre-accident earning capacity and how that has been diminished.
The plaintiff says that he intended to work however, the accident intervened. For the reasons outlined above, I cannot accept this evidence. Had Dr Polczynski given evidence and confirmed the plaintiff's improvement in health and that he had told her of his stated plans to return to work and had she given evidence that he was fit enough to take up work, then I might have viewed the claim differently, but the evidence does not support any claim for past or future loss of income, including superannuation. Indeed, were the plaintiff to be self‑employed, there would be no entitlement to superannuation in any event.

Past and future gratuitous services

Past and future gratuitous services are sought in the statement of claim. No evidence has been produced in respect of such a claim and I will not make any allowance.

Summary

I will allow damages as follows:
General damages $35,000
Less statutory deduction       $14,500      $20,500
Travel and other expenses         $   500
Past medical expenses  $ 1,250
Future medical expenses   Nil
Loss of income   Nil
Gratuitous services     Nil
$22,250
Judgment will be entered for the plaintiff in the sum of $22,250.
The plaintiff may consider that he has been denied justice in that he has not been awarded a sum to meet his expectations which he set forth in his correspondence to the defendant's solicitors and which he provided to me in the amended Papers for the Judge as being $1.4 million. However, the plaintiff must expect that if he engages in litigation in person and does not prove his case to the standard required, then the defendant will not prove his case for him. The Court cannot step in and prove the case for him or simply accept what he is seeking.
The presentation of all relevant evidence in a trial to prove a case is a difficult exercise. The plaintiff, sadly, was not skilled enough to do this. The plaintiff declined my suggestion of an adjournment so that he could obtain further evidence. Even if the trial had been adjourned and the plaintiff brought all relevant evidence as I have outlined above and assuming that all such evidence was favourable to the plaintiff, then he might still feel that he has been denied justice given his unrealistic expectations.