Sarkisjan v Wanless - [2001] WADC 76

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SARKISJAN -v- WANLESS [2001] WADC 76

CORAM: YEATS DCJ

HEARD: 5-9 FEBRUARY 2001

DELIVERED : 28 MARCH 2001

FILE NO/S: CIV 4420 of 1999

BETWEEN: HOVSEP SARKISJAN
Plaintiff
AND
BRENDAN LEA WANLESS
Defendant

Catchwords:

Damages - Personal injuries - Soft tissue injury to the cervical spine - Rear end collision - Speed of defendant's vehicle - Liability and quantum - Plaintiff 41‑year-old Macedonian - General damages $50,000 - Total award $363,906

Legislation:

Nil

Result:

Damages awarded

Representation:

Counsel:

Plaintiff: Mr G Droppert
Defendant: Mr J R Brooksby

Solicitors:

Plaintiff: Leonard Cohen
Defendant: Greenland Brooksby

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

Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1
Bresatz v Przibilla (1962) 108 CLR 541
Browne v Dunn (1894) R (HL) 67
De Blank v Stemberger [2000] WASCA 358
Hendrie v Rusli [2000] WASCA 249
Thomas v O'Shea (1989) A Tort Rep 80-215
Wylde v'Arriaza, unreported; FCt SCt of WA; Library No 970349; 23 July 1997

Case(s) also cited:

Van Velzen v Wagener (1975) 10 SASR 549

YEATS DCJ: The plaintiff claims damages for injuries suffered in a motor vehicle accident on 14 August 1999. He was the driver of a Suzuki four cylinder vehicle waiting to enter Ocean Reef Road from a slip road off Wanneroo Road when he was hit from behind by a Hyundai driven by the defendant.
Liability is not in issue and the matter proceeds as an assessment of damages.
The plaintiff contends that he suffered a significant injury to his neck in the course of the motor vehicle accident and is no longer able to work at his previous employment as a diesel mechanic. The defendant contends that the motor vehicle accident was so minor that it could not have caused the problems in the plaintiff's neck and suggests that problems in his cervical spine are the result of degenerative changes. The defendant suggests that the plaintiff has grossly exaggerated his claim and suggests that he was not injured as he alleges in the course of the motor vehicle accident.
There are a number of issues in contest between the parties including the speed of the defendant's car at the time it impacted with the rear of the plaintiff's vehicle, whether the pathology in relation to the cervical spine is accident related and whether the symptoms in the plaintiff's left wrist and forearm are accident related.

History

The plaintiff is 41 years of age. He was born on 25 May 1959 in Macedonia. The plaintiff was educated in Macedonia and trained to be a mechanic in a four year course which he finished in 1980.
He worked in Macedonia until 1995 when he migrated to New Zealand. After nearly four years there he migrated to Western Australia in October of 1998. He had worked as a diesel mechanic in New Zealand and sought work of that nature in Western Australia, particularly work as a diesel mechanic in the northern parts of the State. He made a number of applications at Robe River, BHP, at various gold mines and with Dampier Salt and gained one week's employment at Robe River in March of 1999. That employment was through Skilled Engineering and he earned $900 gross for that week. Upon returning to Perth he obtained a job with Brian Gardner Motors at their car dealership which commenced in June 1999. He continued in that job until the accident and earned an average of $700 gross per week over that two month period.
Shortly after coming to Western Australia the plaintiff became acquainted with several Macedonian families and was invited to live with them. He spent his weekdays living with Mr and Mrs Mijoski at their home in Mirrabooka; on weekends he stayed with Mr and Mrs Stojanovski at their home in Ocean Reef.
The plaintiff had two industrial accidents while employed in New Zealand. In 1995 he was off for five days with metal in his eyes following some drilling. Then in 1997 he was off for three or four months with an injury to his left wrist. He had been using a sledge hammer and twisted his wrist quite badly. The plaintiff produced no medical records or x‑rays but described having physiotherapy and an x‑ray as well as an injection into his hand. Three weeks after the injection he said he was ready to go back to work. Some 10 months later he migrated to Western Australia.
The plaintiff described his work as a diesel mechanic as very heavy work requiring him to lift heavy engine parts. His work at Brian Gardner's can also require some heavy lifting of items such as gear boxes and disc brakes but Brian Gardner provided heavy equipment to assist with the lifting. He said that he worked mostly on family cars. Some of it was light work such as changing oil and changing spark plugs while some of it was very heavy work.

The accident

The accident took place about 7.00 or 7.30 in the evening on 14 August 1999. The plaintiff was driving his car, a four cylinder Suzuki vehicle, north on Wanneroo Road when he entered the slip road to turn left into Ocean Reef Road. The slip road is governed by a give way sign and the plaintiff gave evidence that he stopped at the white line adjacent to the give way sign to give way to oncoming traffic from his right on Ocean Reef Road. At the time he was travelling with Mr Stojanovski and Mrs Mijoski on his way from the Mijoski's house in Mirrabooka to the Stojanovski's house in Ocean Reef. According to the plaintiff he stopped on the give way line and heard no brakes squeal but suddenly was hit from behind by a white vehicle. He said he first noticed the vehicle behind him immediately before the crash when he was aware of the lights of the vehicle coming into his own vehicle. The plaintiff said the force of the impact pushed the Suzuki halfway into the near lane of traffic on Ocean Reef Road.
Mr Stojanovski was a passenger in the back seat of the plaintiff's car sitting behind the driver. He gave evidence that the plaintiff stopped at the give way sign and then there was a big bang when the vehicle hit them from behind. Mr Stojanovski also gave evidence that the impact moved the Suzuki halfway across the near lane of Ocean Reef Road.
Mrs Novka Mijoski was the front seat passenger in the plaintiff's vehicle at the time of the crash. She also described what she called "a big bang in the back" when the white car hit them. She said the radio cassette fell from the dash into her lap and she described being in shock as a result of the crash.
The plaintiff gave his evidence on the first day of trial without an interpreter but under cross‑examination the frustration of counsel and of the plaintiff was evident. The plaintiff had great difficulty appreciating the questions put by counsel. I was satisfied that the plaintiff was doing his best to answer the questions but could not fully understand them. On the second day of the trial an interpreter was made available and the plaintiff was able to give a much fuller account of events. The plaintiff said that he was stopped at the line by the give way sign and saw car lights coming to his right along Ocean Reef Road and for safety reasons could not go forward. He described a big bang and said that after the impact he sat in the car for some 30 seconds because he was confused and depressed and shaky. He said he thought it was a big accident because of the noise and the big bang of the collision. He described broken glass near the white car but did not hear any broken glass and did not really know if the broken glass resulted from this accident. The plaintiff said when he tried to start his car to move it out of the line of traffic in Ocean Reef Road it wouldn't start and he thought that the impact may have damaged his engine because something was wrong. However the vehicle did start and they were able to move it and it was driven without incident later. The plaintiff said he was in shock, all confused and shaking.
The defendant gave a very different account of the crash. He gave evidence that he was in the slipstream turning from Wanneroo Road left onto Ocean Reef Road and there were three cars in front of him. The vehicle immediately in front of him was the plaintiff's vehicle. After the first two cars in the line had moved on into Ocean Reef Road the defendant said that he came to a stop about a metre behind the plaintiff's vehicle. According to the defendant the plaintiff proceeded to move forward crossing the give way line by about a metre behind his front wheels. The defendant thought he had gone, turned to his right and, when he saw that there was no traffic coming, started creeping forward. When he turned back he noticed that the plaintiff had come to a stop for no apparent reason. He said he hit the brakes and bumped the back of the plaintiff's car. He estimated his speed at about 2 or 3 kilometres an hour at most. He denied that he ever accelerated; he said he was just creeping forward really just easing off the clutch not using the accelerator. The defendant described the plaintiff's vehicle as very old and battered and dirty. When he saw the photograph of the rear of the plaintiff's vehicle (Exhibit 9) the defendant said that he did not remember the right rear bumper being raised as it is in the photograph. The defendant admitted that the impact caused a small crease in the bonnet of the front of his vehicle and that there was some damage to a clip around his headlamp. The defendant admitted that after the accident he had telephone conversations with the plaintiff and eventually agreed to pay $500 to the plaintiff to settle the matter. The defendant was cross‑examined about his finances at the time. On the first day of his evidence he denied that he had any large vehicle expenses shortly before this crash; but later, under further cross‑examination, he admitted that he had recently paid about $2,000 to have his vehicle repaired after a small accident. The defendant admitted that he was an apprentice at the time and could not afford to pay the $1,200 deductible under his insurance policy in order to make a claim. That is why he settled the matter with the plaintiff.
Mr Scott Rogan was the front seat passenger in the defendant's vehicle. He also described approaching in the slip road from Wanneroo Road to turn onto Ocean Reef Road and finding three cars ahead of the defendant's vehicle. Mr Rogan said that the plaintiff's car was immediately in front of them and after the other two cars had gone the plaintiff's vehicle was stopped at the give way sign and proceeded to move forward because there were no vehicles coming along Ocean Reef Road. According to Mr Rogan the brown car took off and the defendant slowly started to accelerate, turned his eyes back to the front when he noticed that the plaintiff's car stopped approximately a couple of metres halfway over the line. According the Mr Rogan the defendant then engaged the brake and clipped the car in front of him. Mr Rogan estimated speed at about walking pace, not a great speed at all. He said the defendant wasn't fully off the clutch so it was travelling rather slowly. Under cross‑examination Mr Rogan confirmed that the defendant accelerated as he moved off and at the time of the collision his foot was still on the clutch. Mr Rogan said that he was annoyed that he could not reach the handbrake in time because he was quite keen to stop the defendant's vehicle. Mr Rogan said he called "Look out" but by that time the defendant had also seen the plaintiff's car stopped. It all happened rather quickly. He believed that the defendant did put his foot on the brake because they stopped with a bit of a jolt. Mr Rogan also looked at the damage to the bumper on the right hand side of the plaintiff's car as depicted in Exhibit 9 and he said that it was definitely not damaged to that extent when he saw it on the night of the accident.
The defence called two independent witnesses, Mr and Mrs Mulcahy. They had been proceeding west along Ocean Reef Road and saw the collision from some 80 to 100 metres away. Mrs Mulcahy said that the first car (the plaintiff's car) pulled out over halfway past the white line; she then described the white car (the defendant's car) travelling very slowly and impacting with the rear of the plaintiff's car. She said it was just a nudge, a bump. Mrs Mulcahy estimated that the rear car was going about 3 kilometres an hour. Under cross‑examination Mrs Mulcahy admitted that in her initial statement she had estimated the speed at about 10 kilometres an hour but she had since reconsidered her evidence and thought it was about 3 kilometres an hour. She did that by estimating a walking speed. She gave evidence that the front car was not pushed forward in the collision; it was stopped about halfway into the kerbside lane on Ocean Reef Road. She said that the car she and her husband were driving had to change lanes to get around it. Under cross‑examination Mrs Mulcahy admitted that she couldn't see the white line as she approached from 80 to 100 metres away in the dark and that she had estimated the position of the lead car from where it came to rest after the accident. Mrs Mulcahy admitted under cross‑examination that she had a great deal of trouble estimating distances and that she had been working backwards and reconstructing the position of the vehicles from their final resting position. She did confirm, however, that her view of the two vehicles when they were stopped before the collision took place was that there was enough room for a person to walk between them and she did not know if that was two metres or what. Mrs Mulcahy admitted speaking to her husband about the speed of the defendant's vehicle and coming to the view that it wasn't 10 kilometres an hour as she had originally estimated; she thought it was probably 3 to 4 kilometres per hour at most.
Mr Mulcahy said that he was about 100 metres east of the intersection of Wanneroo Road and Ocean Reef Road travelling west on Ocean Reef Road when he saw the plaintiff's car pull into the intersection and stop. Mr Mulcahy said that it was then hit from behind by the defendant's vehicle. According to Mr Mulcahy the plaintiff's vehicle stopped half a car length into his lane. He estimated the speed of the impact as under walking pace, that is under 5 kilometres an hour. Mr Mulcahy said that he had to veer into the other lane to go around the plaintiff's vehicle. He admitted he paid little attention to the damage but when he looked at Exhibit 9, the photograph of the rear of the plaintiff's car, he said that the bumper on the right hand side was not up like that when he saw it that night.
The defendant admitted under cross‑examination that on the morning of the trial he spoke with Mrs Mulcahy and Mr Mulcahy and pretty much agreed about the speed. The discussion included the speed and how the plaintiff pulled out and then stopped. According to the defendant he and Mr and Mrs Mulcahy discussed it and agreed.
Two experts were called by the plaintiff concerning the speed of the defendant's car at the time of impact. William Jack Apgar, an engineer and a fellow of the Institute of Engineers in Australia examined photographs of damage to both vehicles and prepared a report. In his report Mr Apgar described the damage to the vehicles and expressed some difficulty in estimating the impact speed but estimated that it was likely to be between 10 and 20 kilometres an hour. He said it was greater than 10 kilometres an hour but less than 20.
Mr Bodan Generowicz, a chartered professional engineer with a Bachelor of Civil Engineering and a Masters in highway and accident cases also examined the photographs of the damage to the vehicles and prepared a report. In his report Mr Generowicz estimated that the speed at impact was of the order of 15 to 20 kilometres per hour. He went on to describe the magnitude of deceleration experienced by persons sitting in the vehicles and he described it as 5 to 10 times the force of gravity for a period of about one tenth of a second. That would mean that persons seated in the vehicle would be subjected to forces 5 to 10 times their own body weight for a tenth of a second.

Finding as to speed

There were a number of problems with the evidence of the defendant Mr Wanless. On the first day of his cross‑examination he denied that he had been under financial constraints at the time of this crash but on the second day of his cross‑examination he admitted that he had recently, prior to the accident, paid $2,000 as the result of another motor vehicle accident. The defendant's account of his driving, that is that he never accelerated and was merely releasing the clutch and creeping forward is inconsistent with the evidence of Mr Rogan who was in the front passenger seat of his vehicle and gave evidence that he did accelerate. I accept that the defendant's car moved a very short distance. I am satisfied on the evidence of the plaintiff, Mr Stojanovski and Mrs Mijoski along with the evidence of Mr and Mrs Mulcahy that the plaintiff's vehicle came to rest about halfway into the kerbside lane of Ocean Reef Road. I do not accept the defendant's evidence that the plaintiff's vehicle was still in the slip lane. I also accept the evidence of the plaintiff, Mr Stojanovski and Mrs Mijoski that the plaintiff's car was knocked forward as a result of the collision. It is apparent, however, that having come to rest at that spot after being hit by the defendant's vehicle that neither the plaintiff nor the defendant travelled very far prior to this collision. I do not accept the evidence of the defendant's witnesses that it was just a nudge or bump and that the speed was only 3 kilometres per hour. All of their evidence is tainted by the fact that they met together on the morning of the trial and agreed about the speed.
The defendant, Mr Rogan and Mr Mulcahy each questioned the extent of the damage to the plaintiff's vehicle as depicted in Exhibit 9. The defendant and Mr Mulcahy both said they could not recall the right rear bumper being raised as it is in the photograph; Mr Rogan thought the vehicle was not damaged to that extent. All of that evidence suffers from the same difficulty as their evidence about speed. It is tainted by the witnesses meeting together on the morning of the trial and discussing their evidence. The photograph, Exhibit 9, was a photo taken by the defendant's insurance investigators. Both the plaintiff and the defendant used Exhibit 9 in briefing their experts. In all of these circumstances I do not accept or rely on the evidence of the defendant Mr Rogan or Mr Mulcahy concerning the extent of damage to the plaintiff's vehicle . I accept the plaintiff's evidence that the photograph shows the extent of damage to the rear of his vehicle resulting from this collision.
I was impressed with the evidence of Mr Generowicz. He is a highly experienced civil engineer. His professional qualifications are of the highest order being a member of professional engineering societies in Europe, the United States and Australia. He has been involved for the last 18 years in motor vehicle crash investigations for the police. His estimate was that the speed at the time of the collision was between 15 and 20 kilometres per hour. His opinion was based on the damage to the vehicles. I also accept the evidence of the plaintiff and his two witnesses as to the loud bang and the shock of the crash that they experienced. Mr Apgar expressed some difficulty giving an opinion. He is less experienced than Mr Generowicz. He said that the speed was between 10 and 20 kilometres an hour, greater than 10 but less than 20. His opinion is not substantially different from that of Mr Generowicz. I was impressed with Mr Generowicz and accept his opinion consistent as it is with that of Mr Apgar.
For these reasons I am satisfied on the balance of probabilities that the speed at the time of collision was 15 to 20 kilometres per hour.

Medical treatment

The plaintiff was not immediately in pain. He remained at the accident site for some 15 minutes exchanging information with the other driver and taking names and addresses of any witnesses and then proceeded to the Stojanovski's house. I am told it was some 10 minutes away. The plaintiff was too shaken to drive and his friend Tony Stojanovski drove his vehicle. When they arrived home the plaintiff complained of not feeling well and went to bed early. Mrs Mijoski said that he went to bed about 9.30 pm and then Mr Stojanovski took her home.
The plaintiff said he went to bed around 10.00 or 10.30 pm and slept badly. He began to feel pain in his neck and arm and suffered from a headache. During the night he had pain and pins and needles sensation down his left arm. He rose early in the morning, around 6.00 am and asked Mr Stojanovski to take him to the hospital. They arrived at about 6.30 am and waited 45 minutes before the plaintiff was seen. He eventually was kept for three days in Royal Perth Hospital. Because of his neurological symptoms which extended not only to his arms but also to his legs and feet he was required to remain completely still in the hospital bed and not move. After three days he was transferred to Shenton Park Rehabilitation Hospital for another week and was discharged on 24 August 1999.
At Royal Perth Hospital he was under the care of Mr Philip Hardcastle, orthopaedic specialist. His symptoms on admission were severe neck pain and paresthesia going generally throughout his body, hands and legs. Mr Hardcastle reviewed films taken - both CT scan and MRI images - and said there was suspicion of some spasm in the C6/7 area of his spine with some sensory changes consistent with nerve compression. According to Mr Hardcastle the plaintiff suffered a reasonably significant injury to his neck which was confirmed by the discogram taken on 11 December 2000 when pain was experienced at three levels of his neck, C4/5, C5/6 and C6‑7. It was also significant that the discs at all three levels leaked posteriorly when dye was injected in the course of the discogram.
Initially when an MRI was done on the plaintiff on 16 August 1999 no disc protrusion was noted at the C4/5 level; yet when a further MRI was done on 21 October 1999 there was a seven to eight millimetre disc protrusion at the C4/5 level which had occurred since the MRI on 16 August 1999. Mr Hardcastle gave evidence that if a disc protrusion is going to occur as a direct result of an accident you would expect it to appear within three and no more than four weeks because you can have the tear in the disc and then you get the gradual development of the protrusion. Mr Hardcastle noted that the C4/5 disc protrusion was not there on 16 August when the first MRI images were taken but it was there in October when an MRI was taken. From that Mr Hardcastle could only say that the protrusion occurred some time after 16 August. It could have been a day or a week or a month after that or two months after that day. He considered that a grey area.
Mr Hardcastle considered that the CT scan on 20 September 1999 is very poor at interpreting neural pathology and is not as accurate as an MRI. The fact that the CT scan did not show the disc protrusion at C4/5 did not indicate that the disc had not protruded at that time. Mr Hardcastle did concede under cross‑examination that a disc protrusion can occur in an atraumatic situation as part of the natural degeneration of the cervical spine.
Mr Hardcastle was unable to determine whether the symptoms in the plaintiff's left forearm and wrist were symptoms originating in his elbow or from his cervical spine. The symptoms were mild numbness which indicates some nerve root damage, pain, along with sensory deficit, and weakness.
Mr Hardcastle agreed with Mr Brash that if the white vehicle which hit the plaintiff's vehicle from behind was travelling at about 5 kilometres per hour at the time of collision then such forces would certainly not cause any soft tissue injury to the cervical spine.
Mr Hardcastle was not concerned at the delay in the onset of the plaintiff's symptoms. In his opinion when a person sustains an injury there may be no initial swelling and it is the swelling that develops over 12, 24 or 36 hours that begins to cause the pain. In this case the pain started to develop in the night and by the morning was quite significant. The plaintiff had neurological symptoms detected at Royal Perth Hospital within the first 12 to 15 hours after the accident. Mr Hardcastle considered this history would be consistent with accident caused injuries.
Under cross‑examination Mr Hardcastle admitted that the pathology was objective but the plaintiff's complaints of pain were entirely subjective and that the plaintiff's x‑rays and MRI's do not in themselves indicate whether the pathology will be symptomatic. Mr Hardcastle conceded that he was dependent on the plaintiff reporting symptoms and then he attempted to correlate them with the pathology.
Mr Hardcastle indicated that he had advised the plaintiff against a cervical fusion because a three level cervical fusion is not generally associated with a good surgical outcome.
Mr Hardcastle's cross‑examination was so extensive that he had to leave to attend surgery and return two days later. In the meantime he took the opportunity to look again at the CT scan of 20 September 1999. In his opinion it would be very difficult to interpret any disc pathology on that CT scan. Mr Hardcastle said that the CT scan showed the bony structures very well but it was very difficult to see other structures. He saw an abnormal area on the left adjacent to the C4/5 disc which could be swelling of the venous structures or could be a small disc protrusion but it was blurry. According to Mr Hardcastle this is the problem with the CT scan in the cervical spine. The contents are blurry and distorted or as radiologists say, degraded and that's the reason that the CT scan is the primary investigation for bone pathology because it shows it beautifully but in terms of spinal cord and disc pathology the CT scan is far less informative than an MRI. Mr Hardcastle would simply remove the CT scan of 20 September 1999 from providing any evidence about a disc protrusion at C4/5. Mr Hardcastle also noted that he was the treating doctor for the plaintiff and that the plaintiff must have been having significant pain for him to have ordered a CT scan at that stage. He said it was very unusual for a CT scan to be ordered one month after the motor vehicle accident.
Under cross‑examination Mr Hardcastle said that the reduced movement in the plaintiff's neck was caused by pain and that he had no doubt that the plaintiff has pain.
Mr Hardcastle was cross‑examined about mention in the hospital notes of hyperventilation and inappropriate behaviour on the plaintiff's part on the first day when he was admitted to Royal Perth Hospital. Mr Hardcastle said that if you have ever had severe pain its extremely difficult to dissociate the pathological from the psychological and that a lot of people hyperventilate when they are in severe pain. He would call it a normal reaction.
Mr Hardcastle also confirmed that the pain medication prescribed for the plaintiff while he was at Royal Perth Hospital was an indication of the level of pain the plaintiff complained of. He had four hourly Panadeine Forte but of great importance was Ketorolac which is only given for very severe pain. Mr Hardcastle said he thought Ketorolac could only be given while in hospital. He also confirmed that morphine was given and again that is only used for severe pain.
Mr Hardcastle also explained that the nerve roots in the cervical spine come out at a different level than the disc so that for example, the C8 nerve comes around the disc at the C6/7 disc space. Mr Hardcastle said that if the numbness in the plaintiff's left lower limb were associated with the C8 nerve root that would be strong or foolproof evidence that he suffered an injury to the neural structures in his neck as a result of the collision. In this area however he deferred to neurologists who are the specialists most able to report on such matters.

Professor Mastaglia

Professor Mastaglia is a neurologist, a member of the Royal College of Physicians and the Professor of Neurology at the University of Western Australia. Professor Mastaglia began treating the plaintiff on 9 September 1999 on referral from the plaintiff's general practitioner, Dr Boichev. It was Professor Mastaglia's opinion that the plaintiff's disc protrusion at the C4/5 level was related to injuries sustained in the motor vehicle accident. Professor Mastaglia noted that there was no mention of the C4/5 disc problem in CT scans on 15 August 1999 nor on 20 September 1999. In his opinion the CT scan is best at detecting fractures. Professor Mastaglia said the CT scan can show a disc protrusion but it can also miss them and is not as sensitive as the MRI scan.
Professor Mastaglia noted that changes at the C6/7 level such as the osteophyte formation were likely to be long‑standing and pre‑dated the accident but he found it difficult to determine whether there was any new pathology at C6/7 as a result of the accident. Professor Mastaglia noted that the symptoms in the plaintiff's left upper limb were consistent from the first time he saw the plaintiff and were noted even in the original admission to Royal Perth Hospital. He found the same symptoms consistently on all examinations that he carried out on the plaintiff.
In the course of Professor Mastaglia's evidence he altered his opinion on the possible causes of the plaintiff's left upper limb symptoms. He said that the symptoms and sensory findings in the hand and inner part of the left forearm are likely to have been due either to a lesion of the brachial plexus or the cervical nerve root number 8. Professor Mastaglia went on to describe the C8 spinal nerve root exiting from the area of the spine just below the C6/7 disc and his hypothesis would be that a disc protrusion and osteophyte formation at that level may have been responsible for the problem. He did not, however, rule out the possibility that it may have been due to a stretch injury to the nerve just lower down in the brachial plexus which is really a matter just of a couple of centimetres below the exit point of the cervical nerve root. It was Professor Mastaglia's opinion that whether it is one or the other or both of these causes the timing or onset of the plaintiff's left upper limb symptoms indicate that they resulted from the motor vehicle accident.
Professor Mastaglia conceded that speed is a critical factor but considered there were a number of other critical factors as well. First would be the vehicle that the plaintiff was in and secondly, the plaintiff's state of health. Professor Mastaglia said that every cervical spine is quite different and it is a mistake to make generalisations based upon the predicted or theoretical effects of a particular speed of impact on the assumption that all drivers would be affected in the same way. He considered that to be an absolute fallacy. In his opinion that is the weakness of a number of experimental models of neck trauma and experimental whiplash that have been published in the literature, some based on primate models and others on human models.
Professor Mastaglia said that the limited movement of the plaintiff's neck was due to a combination of pain inhibiting movement and a mechanical component which would be of secondary importance.
Professor Mastaglia's opinion was that the plaintiff could not engage in any strenuous form of occupation or manual labour and would have to be retrained to take up lighter duties.
Under cross‑examination Professor Mastaglia agreed with Mr Hardcastle and with Mr Brash that if the speed of the collision was about 5 kilometres per hour then such forces certainly would not cause any soft tissue injury to the cervical spine. Under cross‑examination Professor Mastaglia did not accept that the plaintiff failed to cooperate in tests. Professor Mastaglia believed that at the time of those tests some four weeks after the accident the plaintiff was still in significant pain and unable to fully cooperate.
Under cross‑examination Professor Mastaglia confirmed his opinion that the protrusion of the C4/5 disc was a delayed manifestation of the neck injury as he outlined in his report. He would not accept based on his experience of CT scans over a period of years that any failure to see a protrusion at C4/5 level on the CT scan on 20 September necessarily meant that there was not some incipient protrusion of that disc. In his opinion the only way to be sure there would have been no protrusion on 20 September would have been to have an MRI scan on that day and none was carried out. Professor Mastaglia said it is well known that CT scans are notoriously unreliable for detecting disc protrusion particularly early disc protrusion. It can be missed completely or lost in a shadow whereas the MRI scan is the definitive investigation.
Professor Mastaglia said that the degree of limitation of the plaintiff's neck movement and the pain associated with it provided objective evidence of the severe injury he sustained to his cervical spine. Professor Mastaglia gave evidence that when he examined the plaintiff's neck movement he actually moved his neck and assessed for himself how much resistance there was and how much outward sign of discomfort or pain there might be.
Professor Mastaglia did concede under cross‑examination that you could look at the x‑rays, CT scans and MRI's of the plaintiff's C6/7 disc and not know whether it was symptomatic. But Professor Mastaglia believed that the size of the disc protrusion at C4/5, a protrusion of 7 to 8 millimetres was such that he would not agree that that disc is likely to have been non‑symptomatic. In his view a disc protrusion of that magnitude could be causing nerve compression on the spinal cord. Professor Mastaglia noticed that he may have overlooked in his clinical assessment of the man his initial symptoms of sensory symptoms in both feet which could have been related to compression of the spinal cord.
Professor Mastaglia did not put much faith in the discogram for detecting pain. In his opinion the major indication of the procedure is to see whether a disc has been damaged or has ruptured. That's the primary objective and in this case all three discs that is, C4/5, C5/6, and C6/7 were damaged or ruptured.
Professor Mastaglia did concede under cross‑examination that just looking at an MRI scan or an x-ray or a CT scan would not enable a treating doctor to determine whether a person has got pain.
Under cross‑examination Professor Mastaglia said that the pain in the left upper limb and sensory symptoms were clearly not something that could be explained on the basis of an old injury to his left wrist. Professor Mastaglia denied that the lack of any distribution of pain during the discogram to the left upper limb was in any way determinative. Professor Mastaglia considered a discogram extremely unreliable and its primary objective was not the distribution of pain.
Under cross‑examination Professor Mastaglia further explained his opinion concerning the cause of the sensory symptoms in the plaintiff's left limb. He more tends to the view that it is the result of a brachial plexus lesion. Under cross‑examination he explained that if the plaintiff's head was turned to the right at the time of the impact then that could explain a stretch injury to the brachial plexus.

Mr Peter Anderson

Mr Anderson trained in orthopaedic surgery but now practises in rehabilitation medicine. In his opinion the presenting symptoms of neck pain and neck stiffness would have excluded the plaintiff from work in the automotive industry particularly as a diesel mechanic. He did note, however, that he could be retrained possibly to work as a store person in the automotive industry although some arrangement would have to be made about any lifting that was involved in that work.
Mr Anderson's view was that the plaintiff presents a very complex medical problem because of the inter‑relating factors between his neurological deficit in his left arm, his intervertebral disc pathology and his clinical presentation. A number of those matters do not correlate. For that reason Mr Anderson said that the correlation between the pain and what we see on the MRI scan is very difficult to understand. He found the whole assessment very confusing and coupled with the problems associated with his forearm and hand the sensory loss was difficult to explain within the parameters of pathology at the C4/5 and C6/7 levels.
One of the aspects noted by Mr Anderson was the fact that the plaintiff was a Macedonian. He commented on more than one occasion that an ethnic Macedonian tends to withhold information from professional advisers in his experience and makes it very difficult to assess properly. Mr Anderson also pointed out the problems with barriers and language between the observer and the injured party. His experience was that Macedonians tend to exaggerate their symptoms on initial presentation and that neurological assessment is sometimes misunderstood by the injured party so that observations that are made have got to be taken with a certain amount of special consideration given these cultural factors. In this case the difficulty that he had was that the sensory problems in the left limb did not fit with the radiological studies, x‑rays and MRI scans of the cervical spine attributable to C4/5 and C6/7 pathology. It was Mr Anderson's opinion that the type of injury he sustained was not compatible with a severe traction injury on the brachial plexus. Mr Anderson associated that type of injury with a motor cyclist who came off his motorcycle and had his shoulders hit a tree or a pole. He did not believe there was sufficient force to cause that sort of injury.
Mr Anderson was cross‑examined at great length on the subjective nature of pain and it was suggested to him that none of the x‑rays, CT scans or MRI scans could actually depict the cause of pain. Mr Anderson consistently denied this and at the end of the day said that he had before him a plaintiff who had some pre‑existing abnormality in the C4/5 and C6/7 discs and showed that all three discs that is, C4/5, C5/6 and C6/7 were damaged but the fact is that the plaintiff's circumstances changed dramatically at the time of the motor vehicle accident. Prior to that time he was able to work as a diesel mechanic and was unable to work thereafter. After the motor vehicle accident he spent a week in hospital when people with neck injuries are usually treated as out‑patients. In all the circumstances Mr Anderson formed the view that the motor vehicle accident was superimposed on some pre‑existing conditions and it was the aggravation of the pre‑existing conditions that has caused the severe neck pain and stiffness.
Mr Anderson conceded that pain is very difficult to judge but said that in this case there was evidence of pathology in the plaintiff's neck both in the x‑rays and the MRI scan and the discograms to confirm that he has structural abnormalities in the intervertebral disc. If those abnormalities preceded the accident then the plaintiff has suffered a significant aggravation of these degenerative features and that explains his pain and stiffness.
Mr Anderson conceded that the osteophytes observed in relation to the C6/7 disc were pre‑existing but said there is no proof one way or another as to the disc bulge at C6/7 and whether it pre‑existed the accident.
Mr Anderson did notice under cross‑examination that on 20 September 1999 when a CT scan was performed that one of the features they were looking for was the presence of a fracture. In the first x‑rays and CT scan the possibility of a fracture had been noted. Mr Anderson observed that you can pick up a fracture on a CT scan when they have not been seen on x‑rays and that explains why that procedure was carried out at an unusual time.

Mr Anderson took the view that the degenerative features in the plaintiff's cervical spine are a factor that make him more likely to have continuing symptoms in his neck. When cross‑examined as to the forces necessary to cause any spinal soft tissue injuries and the suggestion that if the impact was at a velocity of less than 5 kilometres per hour it could not have caused any damage Mr Anderson expressed the opinion that often investigations come up with a mean value and a standard deviation in terms of statistical analysis but that some people may be outside the standard deviation. He took the view that the plaintiff was outside the standard deviation because of his very unusual features. He would not fit with the normal pattern of a comprehensive survey. When people are outside the values rules as to the amount of speed involved do not provide an answer.
Mr Anderson's overall view was that whatever degenerative changes have been present have been aggravated by the accident.
In his reports however Mr Anderson noted the consistency of the plaintiff's presentation on the various occasions when he treated him beginning in December 1999. In his general presentation he consistently appeared with two problems:
1.A problem with the cervical spine where intervertebral discs pathology had been identified at C4/5 and C6/7.
2.What appears to be a medial chord C8 or ulnar nerve lesion in the left arm.
In Mr Anderson's opinion the intervertebral disc pathology and the plaintiff's neurological findings are not compatible with the same causative factor.

Professor Andrew Harper

Professor Andrew Harper is an occupational physician and Adjunct Professor, Division of Health Services at Curtin University. He holds a Masters and PHD from Harvard University in Public Health and was an impressive witness. Professor Harper's opinion was that as a result of the motor vehicle accident the plaintiff was unfit to work as a mechanic and not fit for any alternative work. He was unable to do any manual work and had no other skills. If he is to go back to work he will need to be retrained. Professor Harper reviewed the plaintiff in April of 2000 and January of 2001. He considers even now that it is too early to finalise because the plaintiff's injuries have not yet stabilised. Under cross‑examination Professor Harper admitted that he did not know of any data related to a delay in disc bulging after trauma. In his opinion the fact that the C4/5 disc did not herniate until later does not exclude it from being accident caused, particularly as in this case there was no other cause to explain the herniation. Professor Harper described the plaintiff as "well muscled" but saw nothing abnormal in his musculature. When questioned about the possibility of a "brachial plexus lesion" Professor Harper expressed the opinion that clinical experience has shown that people have serious injury from relatively minor bumps in motor vehicles.
Professor Harper said that on examining the plaintiff he found objective evidence of symptoms in his left arm. Professor Harper believes he has had a very common injury to his neck resulting from being rear‑ended and now has a weakness in his left arm. The total picture is that he had no problem before the accident but now has serious problems and is unable to work. Professor Harper performed the brachial plexus test which was mildly positive. After examining the plaintiff Professor Harper indicated that he had no reason to disbelieve him. The plaintiff has suffered a neck strain injury from the rear end shunt, a whiplash injury and that is combined with disc herniation and degenerative changes in the neck.
Professor Harper's experience is that neck injury patients can suffer significant disability for long periods of time. He agreed that pain restricts movements and that 18 months is early for a cervical injury as the result of a motor vehicle accident. In his opinion healing in the neck (the same as with a tennis elbow) is very slow because of the low blood supply to those areas.
Professor Harper did not consider it to be inappropriate that the plaintiff found some symptoms relieved merely by talking with friends. In his opinion the mind and body are not separate and the comfort, relaxation and reassurances of conversing with friends could serve to relieve his symptoms.
Professor Harper recommended a pain management programme for the plaintiff because his pain was distressing to him and he was frequently consulting his family doctor because he was unable to cope with his discomfort.
Professor Harper's opinion was that the plaintiff did have pre‑existing degenerative change in his neck and he has had an injury to his neck in the motor vehicle accident which caused his previously asymptomatic neck changes to become symptomatic. He developed a disc herniation and nerve root irritation causing pain to extend down his left arm.

Mr Stewart Brash

Mr Brash is an orthopaedic surgeon called to give evidence by the defence. Mr Brash took a very different view of the plaintiff. Mr Brash first saw him on 12 September 2000. After examination Mr Brash could see no anatomical reason as to why the plaintiff should have such marked decreased range of motion in the cervical and thoracic spine. He also considered the widespread loss of sensation to be a non‑anatomical distribution convincing him that there are no doubt strong functional factors present in the total pain picture. Mr Brash pointed to inconsistencies in the plaintiff's capacity at straight leg raising when he was standing and when he was lying prone.
Mr Brash's opinion was based on his acceptance of the evidence of the defendant and Mr Rogan so that his opinion was postulated on the forces involved in the motor vehicle accident involving a speed no greater than 5 kilometres per hour. Mr Brash's opinion then depended on his reading of the literature and research that shows quite clearly that the minimal threshold speed to produce acute and transitory symptoms in the cervical spine is of the order of 15 to 20 kilometres per hour. After observing the CT scan and MRI's Mr Brash found pre‑existing age related degenerative changes in the plaintiff's cervical spine that were not related to the accident and considered that the disc protrusion at C4/5 was not accident related. Mr Brash also relied on the inappropriate illness behaviour observed and noted in the emergency department notes at Royal Perth Hospital including hyperventilation. Overall, the plaintiff had stopped work, time had passed and yet the intensity of his symptoms had actually increased since the accident. Therefore, from an objective and anatomical point of view Mr Brash considers that the plaintiff is completely fit for full time work as a diesel mechanic.
In his evidence Mr Brash explained that the plaintiff appeared emotionally distressed and hysterical with hysterical over‑breathing when admitted to hospital and that is probably why he was admitted. According to Mr Brash a rear end impact at a speed of 5 kilometres or so is no greater impact than coughing or sneezing so far as the impact on the passengers in the vehicle.
Mr Brash also explained the reasons that he doubted the correlation of the pain to any injury suffered in the accident. One was the fact that there was no immediate pain which he would have expected if there had been any soft tissue injury suffered in the accident. The second reason was that the pain has remained the same or increased since the time of the accident when normally one would expect symptoms to settle within a few weeks. Mr Brash explained that even when a person has neck surgery when there is severe trauma to the neck they are pain free and recovered in five to six weeks. In his opinion it would be impossible for the plaintiff to sustain any injury to his neck at less than 10 kilometres an hour. Mr Brash had strong views about the brachial plexus test carried out by Professor Harper. He considers that it is non‑specific, invalid and unreliable and referred to a decision of the District Court in a discussion by Judge Barlow.
Mr Brash explained that his opinion also arose from the plaintiff's behaviour in hospital. At a time when he had possible spinal cord damage the nursing staff were turning him in a "log rolling manner" and despite instruction to lie still he moved around inappropriately and was not complying moving his head around. That behaviour meant to Mr Brash that the plaintiff did not have any spinal cord problem.
Mr Brash obtained the CT scans taken on 20 September 1999 and reviewed them immediately prior to trial. He said there was nothing significant on the CT scan at C4/5.
Mr Brash relied on the results of the discogram to show that the pain or symptoms in the plaintiff's left arm was not coming from any of the three discs that is, C4/5, C5/6 or C6/7. To have similar pain at all three levels was, in Mr Brash's opinion, most unusual.
Under cross‑examination Mr Brash agreed that he adheres to a theory as to whether or not there can be permanent pain or long term pain associated with whiplash grade 1 or 2 injuries. Mr Brash holds that view supported by international literature. Mr Brash also conceded that he holds the view that people involved in litigation complain of pain for longer than they should.
Mr Brash was firmly of the view that MRI's have shown that people can have large disc protrusions, can have annular tears and big disc bulges without there being any pain or symptoms. For that reason he concludes that imaging does not show the cause of pain.
Mr Brash was cross‑examined extensively about his review of the CT scan of 20 September 1999. He said that because of the size of the disc protrusion at C4/5, the fact that it was so large he would have expected the CT scan to have shown it. He did accept that a CT scan is unreliable in relation to the cervical spine and that the MRI is the superior test. Mr Brash denied seeing any grey area or any feature in the C4/5 level. He specifically denied seeing anything as described by Mr Hardcastle to the left at C4/5.
Under re‑examination Mr Brash confirmed that he did not accept that there could be any brachial plexus lesion because that requires an avulsion sort of injury where the arm and neck are forcibly drawn apart. In his view no such forces were at play in this motor vehicle accident.
So far as Professor Mastaglia's opinion that the sensory symptoms in the plaintiff's left arm are related to the C8 nerve root Mr Brash said that the C8 nerve root is between C7 and T1 vertebrae and is nowhere near C6/7 disc.
Mr Brash considered changes in nerve conduction tests and EMG performed by Dr Edis but gave the opinion that these changes were so minor and that they could not in any way be related to the accident.
Mr Brash reiterated again under re‑examination that the 12 hour delay in reporting pain was a very important point. If the plaintiff had suffered a significant injury in the motor vehicle accident he would have suffered acute localised pain and tenderness which the plaintiff did not have and there is nothing in the minor nature of the motor vehicle accident to provide any indication that there was anatomical pathology to account for his complaint of distressing pain.

Mr Nickolay Batalin

Mr Batalin is an orthopaedic surgeon who saw the plaintiff on two occasions, the first in April of 2000 and again in November 2000. Mr Batalin noted pre‑existing degenerative changes principally affecting the lower neck at C6/7 level and lower back at L5/S1 level. He concluded that in the motor vehicle accident there could have been superimposed strain and soft tissue neck injury but was puzzled by the diversifying and increasing symptoms and clinical inconsistencies. On examination Mr Batalin found the plaintiff to be a noticeably anxious man with excessive pain behaviour. Mr Batalin prides himself on double checking all signs to be sure that he gets an objective impression and an accurate assessment. Therefore the patient undergoes formal examination but also informal examination. On formal assessment he noted 90 per cent restriction of the plaintiff's neck movement which he found very puzzling. According to Mr Batalin even a fracture of the cervical spine is not associated with that degree of rigidity. However when Mr Batalin employed informal assessment methods he noticed that the plaintiff's neck was only 15 per cent restricted. This led Mr Batalin to believe that there was a conscious element of maximising the restriction. Mr Batalin found no consistent tenderness on compression or palpation of the cervical spine. He noted that the patient initially demonstrated voluntary weakness affecting the distal part of the entire left upper limb but found that was not substantiated by indirect observations which suggested good motor use of both hands. He also found the plaintiff open to suggestible symptoms. The brachial plexus stretch test was negative and Mr Batalin again found inconsistency between straight leg raising in the sitting position and the plaintiff's ability to sit on the examination couch with both legs extended.
Mr Batalin concedes that the plaintiff would be unfit to work as a mechanic but should be retrained in lighter sedentary or semi‑sedentary employment. In his review of the plaintiff in November 2000 Mr Batalin found considerable difficulty in concluding there to be a cause and effect between the C4/5 disc lesion and the motor vehicle accident. He also found that collision between a stationary vehicle and a vehicle travelling at 5 kilometres per hour is unlikely to produce significant damage to a normal cervical spine. He did concede however, that it could make a patient symptomatic if he has pre‑existing degenerative problems.
Under cross‑examination Mr Batalin was asked to comment on the reliability of CT scans at detecting disc lesions. In his experience major disc lesions in the neck will show up on a CT scan as well as on an MRI. Mr Batalin did agree however, that it is possible that there can be false negatives on CT scans. But he would have expected a protrusion of 7 or 8 millimetres to have been seen on a CT scan. Mr Batalin examined the CT scan of 20 September 1999 and saw no evidence of a disc protrusion at C4/5.
Mr Batalin did not accept that the leakage of dye in the course of the discogram necessarily meant that each disc was degenerate. He said it could be that the radiologist did not carry out the test properly so that dye has leaked as he conducted the test. The other possibility was that the disc could be degenerate and have wear and tear and holes in it. On the other hand there could be a trauma or damage that can result in rupture of the annulus which causes dye leaking when the disc is in fact abnormal. Mr Batalin said the most common cause was leakage described by radiologists as "artifact" caused by the test not being carried out properly.
Finally, under cross‑examination Mr Batalin said that he had found suggestible symptoms when he interviewed the plaintiff. By that he meant that he suggested pain in an irrelevant area and the plaintiff agreed he had that pain.
Under re‑examination Mr Batalin said that a discogram is a very subjective test which depends on the cooperation of the patient and if the patient chooses to they can totally mislead. A discogram may show degenerative changes but it may not correlate with the patient's symptoms.

George T Wong

Mr Wong, a neurosurgeon was not called to give evidence but his report was tendered by consent. He reviewed the plaintiff on one occasion in March of 2000. Mr Wong diagnosed a soft tissue injury to the neck with referred arm symptoms. He thought there may be some minor stretch injury to the brachial plexus giving rise to his arm symptoms but overall believed his disability to be complicated by functional and psychological issues. He also believed there to be a causal relationship between the plaintiff's symptoms and the accident on 14 August 1999. Mr Wong gave evidence that the plaintiff does have a work capacity at least for lighter duties, most likely on a full time basis but he could not really comment on psychological issues. Mr Wong believed the plaintiff could benefit from psychological assessment.

Finding as to credibility

My assessment of the plaintiff's credibility is one of the key factors in this case. The defendant suggests that I should not believe the plaintiff because of a number of matters where he is said to have misled or lied to various medical practitioners.
According to Mr Batalin the plaintiff told him that the damage to his vehicle amounted to $12,000. When cross‑examined about that Mr Batalin checked his notes and was sure that he heard the plaintiff say $12,000 and not $1,200 which was the actual cost of repairs. I have difficulty accepting Mr Batalin's evidence about that because of my own experience of the plaintiff's problems comprehending English and difficulty in answering questions. It seems to me that the $12,000 referred to by Mr Batalin must have been $1,200 whether because of a mistake on the part of the plaintiff or because his broken English was misunderstood. That is particularly so when Mr Batalin's report in the same sentence goes on to say that the plaintiff indicated the vehicle was driveable and was driven after the accident by his friend. Taking account of all these matters I am not prepared to find that the plaintiff intentionally lied to Mr Batalin or tried to mislead him.
The defence also relies on the plaintiff allegedly telling hospital personnel and Mr Wong that the vehicle which hit him was travelling at 60 kilometres per hour. From his cross‑examination and his evidence I accept the plaintiff's explanation for that. He was stationary and hit from behind in the collision. He did not see the other vehicle coming. The impact was loud and shocked him. I accept that he may well have thought it was a vehicle travelling at 60 kilometres per hour. I do not consider that he intentionally misled anyone when he gave them that speed.
The defence also relies on Professor Harper's report that the plaintiff told him his vehicle had been written off when clearly it wasn't. Again with the language difficulties of the plaintiff I am not persuaded that the plaintiff necessarily said that or was fully understood by Professor Harper.
The defence also relies on the plaintiff wrongly moving in hospital after being told not to and suggests that that evidence shows that he was not badly injured and he well knew he was not badly injured. I do not accept that submission. The plaintiff's language difficulties provide ample explanation for him failing to properly comply with directions. It also must be remembered that he was to hold his head rigid because they suspected a spinal cord injury and of course he did not have a spinal cord injury. In this regard I am persuaded by the evidence of Mr Hardcastle who observed and began treating the plaintiff in hospital that he was a man complaining of severe pain who has had consistent symptoms involving stiffness and pain in his neck and neurological signs in his left limb. It is persuasive that Mr Hardcastle prescribed pain killers including not only Panadeine Forte but also Ketorolac and morphine. Both Mr Hardcastle and Professor Mastaglia saw the plaintiff within a month of the motor vehicle accident and each of those specialists accepted that he was complaining of severe pain and had severe pain. From his demeanour in the court room I accept that the plaintiff consistently demonstrated severe pain and stiffness in his cervical spine. It was telling to me to watch the plaintiff when asked by cross‑examining counsel to turn his head further to the side than he had indicated he was able to do. The plaintiff did that but it was apparent from the look in his eyes and the tears on his face that it caused him considerable pain to do it.

I was also impressed with the genuine attempt the plaintiff made to answer questions under cross‑examination without an interpreter. I do not mean to criticise cross‑examining counsel but often the questions of a cross‑examiner are complex and difficult. I noticed during the first day of the trial that the plaintiff seemed to understand one part of the question put to him and tried his best to answer the question based on the part he understood. Often it was apparent that he had not understood the full question. In my assessment the plaintiff was a genuine witness doing his best to tell the truth and to understand the questions put to him. It was an obvious relief to him to have an interpreter attend the court on the second day of trial so that he was able to fully explain his answers in cross‑examination. The essence of his evidence did not change but details emerged and questions were fully comprehended and fully answered.
Having considered all of the evidence I do find the plaintiff to be a credible witness. I am satisfied on the balance of probabilities that he genuinely suffered severe pain commencing overnight following the motor vehicle accident and that those symptoms in his neck and the numbness and neurological sensations in his left arm have continued since then. At the same time I accept Mr Anderson's evidence about his experience with Macedonian patients. There is exaggeration in the plaintiff's ongoing complaint of symptoms. I believe that tendency to exaggerate is part of the plaintiff's cultural makeup. It is a matter that the court should take into account but I do not find his exaggeration so extensive as to falsify his testimony or detract from his credibility. The whole process of legal/medical assessment associated with a plaintiff who pursues a personal injuries claim to trial necessarily involves the plaintiff in prolonging and/or exaggerating symptoms. I accept Mr Brash's comments about that. But I do accept the plaintiff is a credible witness who came to court doing his best to tell the truth although exaggerating his symptoms to be sure the court understands what he has suffered.

Finding as to injuries

The main issue that I need to determine is whether the plaintiff suffered any injury as a result of the motor vehicle accident. I have already found that the speed at the time of the collision was 15 to 20 kilometres per hour. Based on that speed the evidence of Mr Hardcastle, Professor Mastaglia, Mr Anderson and Professor Harper all support the plaintiff's case that the disc protrusion at C4/5 was accident caused. I accept Mr Hardcastle's evidence that after a motor vehicle accident a disc protrusion would be expected to result within three and at least within four weeks. I do not find the fact that the disc protrusion was not seen on the CT scan on 20 September 1999 to be determinative of this issue. I accept Mr Hardcastle's evidence that he saw a shadow at the C4/5 area on the 20 September 1999 CT scan. I am aware that that directly conflicts with Mr Brash's review of that CT scan. Mr Brash did not seem to me to have been objective in his reading of the hospital files or in his assessment of the motor vehicle accident. Given the conflict between his evidence and that of Mr Hardcastle I prefer that of Mr Hardcastle. The evidence shows that the disc protrusion at level 4/5 was not present on 16 August 1999, two days after the motor vehicle accident when the first MRI scan was done. The disc protrusion was clearly present when the second MRI scan was ordered in October. I rely on the opinion particularly of Professor Mastaglia that the disc protrusion at C4/5 was accident related. It is simply unknown when the disc protrusion occurred. It was not there prior to the accident but it was certainly there two months later and could well have been there but not seen at the time of the CT scan. It could have been slightly visible to Mr Hardcastle at the time of the CT scan. Taking account of all of the evidence I am satisfied that that injury to the C4/5 disc was accident related.
I am also satisfied that on all the evidence the plaintiff did suffer a cervical whiplash injury in the collision. That comprises a soft tissue injury to the cervical spine. I accept the evidence of Mr Hardcastle that the onset of symptoms some 12 hours after the motor vehicle accident is quite consistent with swelling that occurs as a result of trauma and of the pain and stiffness resulting from the swelling being felt 12 hours after the event.
I have considered very carefully the conflicts in evidence among the medical witnesses concerning the plaintiff's symptoms in his left arm. I accept that the numbness and these sensations are minor compared to the problems the plaintiff suffers as a result of his neck injury. The orthopaedic surgeons deferred in this area to the expertise of a neurologist and I accept the opinion of Professor Mastaglia. He was of the view that those symptoms originated either from the C8 nerve root or from a stretch injury to the brachial plexus or from both. He tended more to favour the brachial plexus because of the evidence that the plaintiff had his head turned to the right at the time of motor vehicle impact. But as I understood his evidence Professor Mastaglia believed it could have been caused by either or both of those. The involvement of the C8 nerve root depends on the proximity of the nerve root to the C6/7 disc as the nerve root exits the spinal canal. I accept Mr Hardcastle's evidence as to that proximity and do not accept the evidence of Mr Brash about that. The difficulty is that the osteophytes at C6/7 were part of the plaintiff's pre‑existing degenerative changes not caused by the accident. There was evidence however, that there were changes in the C6/7 disc from the original MRI and that those changes could well be accident caused. One factor that tends to support the left arm symptoms as being accident caused is the consistency of the plaintiff's reporting of the symptoms. Several of the witnesses mentioned that including Mr Hardcastle, Professor Mastaglia and Mr Anderson. The plaintiff consistently demonstrated numbness, pain and sensory difficulties in his left upper limb and he denied that any of those had been experienced prior to the motor vehicle accident. Given that history and taking account of Professor Mastaglia's opinion as the treating neurologist, I am satisfied that those symptoms in the plaintiff's left arm are accident related.
For these reasons I am satisfied that as a result of the accident the plaintiff has suffered the disc protrusion at C4/5 and has suffered soft tissue injury to the cervical spine in the nature of whiplash injury. I am satisfied the soft tissue injury aggravated degenerative features at C4/5 and C6/7 and made them symptomatic thus causing the severe neck pain and stiffness the plaintiff is suffering. I am also satisfied the plaintiff's left upper arm symptoms are accident related.

Treatment

Treatment issues pose a very difficult problem. I accept Mr Hardcastle's evidence that with three degenerate discs the plaintiff is in no position to undergo a fusion. His symptoms have not settled over a very long time. Professor Mastaglia recommended gentle exercise for the neck and shoulder and exercise for his left arm and hand. Professor Mastaglia would minimise the use of Panadeine Forte but would commence Prothaiden at night to control pain and improve his sleep pattern. Professor Harper recommended a pain management programme to help the plaintiff address his apprehension and anxiety and to help him live with his pain. Pain management was also recommended by Mr Hardcastle. Mr Batalin recommended graded exercises to strengthen the neck and back muscles and the occasional use of anti‑inflammatories.

Assessment of damages

Loss of earning capacity

I accept the evidence of Mr Anderson that the plaintiff is totally incapacitated from continuing his work as a diesel mechanic based on my findings that that total incapacity is accident caused. Mr Anderson's opinion is supported by the evidence of Mr Hardcastle, Professor Harper and Mr Batalin. I do not accept Mr Brash's opinion that the plaintiff could resume work as a diesel mechanic. I have already expressed my concern that Mr Brash based his opinion on his instructions that the vehicle was only travelling 5 kilometres an hour when it came into collision with the rear of the plaintiff's vehicle. I have found on the evidence that the vehicle's speed was 15 to 20 kilometres per hour and Mr Brash's opinion based on a false premise is of no value.
I accept the opinions of Mr Anderson, Professor Harper and Mr Batalin that the plaintiff needs to be retrained if he is to gain light or sedentary or semi‑sedentary employment. These findings are, however, subject to my finding that the plaintiff does tend to exaggerate his pain and his symptoms. That factor will be taken into account in my assessment of damages.
I accept that the plaintiff has been totally incapacitated since the date of the accident. At that time he was earning an average of $535 net per week. His past loss of earnings for 77 weeks is calculated at $41,195.
In this case the plaintiff has proved that he has lost his pre‑accident earning capacity and that his condition has prevented him from finding alternative employment. In these circumstances an evidentiary onus shifts to the defendant to show that the plaintiff is able to do light work, that he could obtain such work and what he could earn (Thomas v O'Shea (1989) A Tort Rep 80-215 at 68,701 ‑ 68,702 per Malcolm CJ and Wallace J. The defendant has not led any evidence of that nature. I have already given my reasons for not accepting Mr Brash's opinion.
In these circumstances there is no evidence of any retained earning capacity. I assess damages for future loss of earnings based on the figure $535 net per week. The plaintiff is now 41 years old and I accept that he would have worked until age 65. The 6 per cent multiplier for 24 years is 674.3 = $360,750.50.
I accept that all contingencies are not adverse and all vicissitudes are not harmful (Bresatz v Przibilla (1962) 108 CLR 541 at 544). This plaintiff had a very limited work history in Western Australia. After numerous applications he only managed to gain one week's work as a diesel mechanic from October 1998 when he arrived in Western Australia until March 1999. Then he commenced employment with Brian Gardner Motors in June 1999, a position held for only two months prior to the accident . Michael Robinson, the workshop foreman from Brian Gardner Motors, gave evidence that the plaintiff had been on three months probation at the time of the accident and said it would have been recommended that the plaintiff would not have been kept on because of productivity and performance factors. This evidence was not put to the plaintiff in cross‑examination and therefore breached the rule in Browne v Dunn (1894) R (HL) 67. In these circumstances I will accord it less weight than it otherwise might have. I will accept that the plaintiff was on three months probation at the time of the accident but I will not give much weight to the rest of Mr Robinson's evidence because I believe it would be unfair to do so. (Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1.) I am prepared to find on the evidence that the plaintiff did not have a good work record in Western Australia having been employed for only two months and one week of the 10 months he had been in this State at the time of the accident and being on probation at Brian Gardner's. I consider it likely that he would have experienced periods of unemployment during his working life. I consider the chances of the plaintiff gaining higher paid employment working in the north west of the State were minimal. On the other hand the degenerative condition of his cervical spine may well have incapacitated him for heavy work as a diesel mechanic in the future irrespective of this accident. In that event he would be unlikely to find alternative lighter duties because of his lack of skills or training.
Mr Anderson, Professor Harper and Mr Batalin all consider the plaintiff should be retrained for sedentary employment. Given the plaintiff's tendency to exaggerate his symptoms I do believe that his pain symptoms could be managed so that there is a real prospect of him being retrained and able to undertake sedentary employment at least on a part time basis. The chance that will occur and the chance that he will be able to find employment are, in my view, moderate.
Taking account of all of these contingencies leads me to fix a figure of 35 per cent for contingencies so that I calculate future loss of earning capacity at $234,488.

Loss of superannuation

Past loss of superannuation to the date of trial is calculated at $50 per week x 77 weeks = $3,850.
Future loss of superannuation is calculated at $50 per week x 674.3 = $33,715 less 35 per cent contingencies = $21,915.

Past medical expenses

I award pharmaceutical expenses of $501.05 as per Exhibit 7, medical and other expenses of $3,731.60 as per Exhibit 8 and $714 for payments to Dr Boichev.
Total past medical expenses are $4,947.

Future medical expenses

The plaintiff continues to have need of medical supervision, pain medication and pain management treatment. It is suggested that I allow $50 per week for the next five years to cover these matters. I believe that claim is excessive. I would anticipate pain management treatment would be complete within two years. After that the only expenses would be for his general practitioner and any pain medication that may still be required. I believe a figure of $25 per week for a period of five years would provide adequate compensation for the plaintiff's future medical expenses.
It is suggested that I should award a sum for the possibility of major surgery to his cervical spine. I do not believe that Mr Hardcastle's evidence justifies making any allowance for this possibility. Added to this is the plaintiff's tendency to exaggerate his symptoms. I do not believe it would be appropriate to award any sum when on the evidence there is really no prospect of the plaintiff undergoing a triple cervical fusion.
Total future medical expenses = 25 x 226.3 = $5,658.

Interest

I allow interest on past loss of earnings of $41,195 at 1/2 x 6 per cent x 1.5 years = $1,853.

General damages for non‑pecuniary loss

I accept that the plaintiff did suffer a substantial soft tissue injury to his neck and by the next morning was suffering intense pain. His subsequent hospitalisation for 10 days provides some evidence of the pain he experienced initially. His acute symptoms settled but his neck pain and stiffness have remained. He often suffers headaches in the morning when he wakes up. He spends his time during the day walking around the house and watching some television. His inability to return to work has made him depressed. His neck injury has removed any possibility of playing football as casual recreation. Before the accident the plaintiff used to enjoy attending the Macedonian Club for a good talk with other members but now he experiences pain in his neck from sitting too long and no longer attends the club.
As I indicated in my findings on credibility, I believe the plaintiff has exaggerated his symptoms and his pain. I accept that he initially suffered severe pain but I do not accept that it has continued to be as severe as he would have us believe. I also believe his symptoms will be amenable to pain management treatment as recommended by Mr Hardcastle and Professor Harper.
In considering this issue I rely on the discussion of what might constitute a most extreme case by Murray J in Hendrie v Rusli [2000] WASCA 249. (Also Wylde v'Arriaza, unreported; FCt SCt of WA; Library No 970349; 23 July 1997; De Blank v Stemberger [2000] WASCA 358.) Taking account of the plaintiff's tendency to exaggerate his symptoms I believe this case falls in the category of about 20 per cent of what would be suffered in a worst case. The current maximum pursuant to s 3C of the Motor Vehicle (Third Party) Act is $224,000. I award general damages for non‑pecuniary loss of $50,000.

Summary of award

Past loss of earning capacity  $41,195.00
Future loss of earning capacity  $234,488.00
Past loss of superannuation  $3,850.00
Future loss of superannuation  $21,915.00
Past medical expenses  $4,947.00
Future medical expenses  $5,658.00
Interest$1,853.00
General damages for non‑pecuniary loss                 $50,000.00
Total award  $363,906.00