Schmerer v Moody and John Engineering - [2000] WADC 161

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SCHMERER -v- MOODY & JOHN ENGINEERING [2000] WADC 161

CORAM: BLAXELL DCJ

HEARD: 1-5, 18 MAY 2000

DELIVERED : 23 JUNE 2000

FILE NO/S: CIV 2733 of 1991

BETWEEN: THOMAS SCHMERER
Plaintiff
AND
MOODY & JOHN ENGINEERING
Defendant

FILE NO/S :CIV 1731 of 1996

BETWEEN :THOMAS SCHMERER
Plaintiff
AND
BRIAN DAVID ORBINSKI
Defendant

Catchwords:

Negligence - Employer and employee - System of work - Duty to provide safe system - Whether or not accident happened - Turns on own facts

Assessment of damages - Motor vehicle accident - Cervical symptoms and depression - Extent to which symptoms attributable to accident - Turns on own facts

Legislation:

Nil

Result:

Claims dismissed

Representation:

CIV 2733 of 1991

Counsel:

Plaintiff: Mr D Clyne
Defendant: Mr J Brooksby

Solicitors:

Plaintiff: D'Angelo & Partners
Defendant: Greenland Brooksby

CIV 1731 of 1996

Counsel:

Plaintiff: Mr D Clyne
Defendant: Mr P Momber

Solicitors:

Plaintiff: D'Angelo & Partners
Defendant: P Momber

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

Nil

Case(s) also cited:

Nil

BLAXELL DCJ: In each of these actions the plaintiff claims damages for personal injuries which are said to have been sustained in an accident caused by the negligence of the defendant. The first action arises from an accident which allegedly occurred on 20 December 1989 in the course of the plaintiff's employment as a welder with the defendant Moody & John Engineering Pty Ltd ("the first accident"). The second action arises from an accident on 24 December 1994 when a vehicle driven by the plaintiff collided with another driven by the defendant Brian David Orbinski ("the second accident").
The two actions have been consolidated and heard together because of the overlapping nature of the injuries, symptoms and loss claimed. It is relevant to note that the matters first went to trial in June 1998 but the subsequent judgment was set aside by the Full Supreme Court and the present retrial ordered. Consequently witnesses at the retrial have been cross‑examined on the basis of claimed inconsistencies with their earlier evidence (and to that extent it may become necessary to refer to the evidence at the first trial).

The background of the first accident

The plaintiff was born in Germany and came to Australia with his parents when he was 12 months of age. He completed his schooling at 13, and from the age of 17 years up until the first accident worked as a welder. He is now 44 years of age.
Prior to the first accident the plaintiff sustained a lumbar back injury in 1979 which resulted in a laminectomy being performed on 6 May 1982. As a result of this injury the plaintiff was unable to work for 10 months, but he was certified as fit to resume normal duties on 3 January 1984.
The plaintiff commenced work as a subcontract welder with Moody & John Engineering Pty Ltd ("the first defendant") in March 1989. The work was performed at the first defendant's factory in Maddington, and the plaintiff was paid an hourly rate on the basis of the weekly invoices that he submitted. His work mostly involved the welding of mining components.
In the weeks prior to the alleged accident the plaintiff was engaged in welding steel frames which were to be made into trolleys for delivery to James Hardie & Co Pty Ltd. The structure and dimensions of these frames are set out in the plan which has become Exhibit "P1A". The frames were more or less rectangular in shape and were approximately 2.5m long and 2.31m wide. When in a horizontal position each frame rested on four short legs and had vertical protrusions at the top which took the overall height to 1.43m.
The plaintiff had welded approximately 20 of these frames prior to the date of the alleged accident. He received each frame in a tack welded condition and it was his responsibility to complete the welding of all joints and seams. It had been his standard procedure to do as much of the welding as he could while the frame was in a horizontal position, and then to complete the job after turning the frame over so that it rested at an angle on a side beam and the tops of (what had been) the uppermost protrusions.
When turning each frame the plaintiff used a chain block attached to a trolley which rolled along a monorail (or "RSJ") approximately 5.7m above the floor. The configuration of this chain block is depicted in figure 1 of Exhibit "P6", and it can be seen that a hand chain (or "operating chain") rotated the mechanism within the block causing a "load chain" (with hook attached) to be raised or lowered. In order to perform each turning operation the plaintiff attached an additional pair of "sling chains" joined together by a ring placed over the hook of the load chain. The outer end of each sling chain was then wrapped around a side beam of the frame and hooked back onto itself.
By this means the plaintiff was able to lift each frame from the horizontal into a vertical or near vertical position. When this was achieved the side beam with the sling chains attached became (what was described in evidence as) the "top", and the other side beam resting on the floor, the "bottom" of the frame. After each frame was so lifted the plaintiff pushed it through the vertical position and then used the chain block to lower it down the other way. The plaintiff claims that it was immediately prior to him pushing one such frame through the vertical position that the first accident occurred.

The evidence as to the first accident

It is the plaintiff's evidence that prior to the first accident he made numerous complaints to his superiors Peter and Ron Moody about defects in the chain block. The substance of these complaints was that "the ratchet inside the chain kept on getting caught … it was running rough and also was coming out twisted instead of coming out perfectly straight". The plaintiff also complained that: "… the hook chain does not go completely up against the chain block at all. It stops at least 10 to 12 inches away from it" (T 5).
The plaintiff made further complaints that the operating chain hung down only to waist height requiring him to stand under the load whilst it was being lifted (T 8-9), and that the sling chains were too long thus not allowing enough vertical lift (T 10). I understand the plaintiff to say that his complaints about all of these matters were ignored.
It is also the plaintiff's evidence that as each frame reached the vertical position one end (which he termed the "lighter" end) would tend to lift up off the floor. In order to cope with this he would hold the bottom of the lighter end down with his foot while pushing the frame through the vertical. (It should be noted that the expert Mr Apgar was unable to say whether one end of the frames was in fact lighter than the other. However, his evidence suggests that the frames were not perfectly rectangular, which would explain why a frame being evenly lifted might have one end lift up off the floor.)
According to the plaintiff, at the time of the accident he had lifted a frame to approximately a 75 degree angle (from the floor) when the chain block jammed. (I understand him to say that the chain block jammed when the load chain still had 10-12in to travel.) While holding his foot on the left bottom side of the frame he gave the operating chain a "short yank to bring it down a bit to free it", but the frame "just came down altogether" (T 17).
Before the frame suddenly descended in this way the top beam was approximately one foot above the plaintiff's head. As the frame came down he caught the top beam against his chest and cradled it in his arms. The frame continued to fall taking the plaintiff with it so that he ended up doing "the splits" with his right knee on the floor and his left leg fully extended to the rear.
The plaintiff's account of what subsequently happened was very difficult to follow, but I understand him to say that the frame then started swinging or swivelling with the bottom righthand "heavy" corner acting as a pivot point. This caused the chain block to move back and forth along the RSJ "about a metre and a half either way" (T 19) and the plaintiff to be thrown around like a "rag doll" (T 75).
The plaintiff was finally flung backwards so that he ended up with his feet off the floor and his body arched over a bench that was behind him. For some reason the heavy bottom corner of the frame which had previously been on the floor finished up "on top of the corner of the bench … rocking on it …" (T 23). At the same time the top of the light end of the frame was resting on top of the plaintiff (T 43).
It is the plaintiff's evidence that the incident came to an end with him being trapped between the frame and the bench in this way. Mr Peter Moody then came to his aid:
"He jumped on to the bench and started using the lifting chain and I started crawling out … and I crawled out and there was another worker that came out of the storeroom. He called him over to help push it over which I did the same on the lighter end. He took the other bloke to do it on the heavier end and he was pushing and using the chain. So the three of us using - to get it over." (T 23)
Mr Peter Moody was one of the joint proprietors of the first defendant and he has testified that he has no recollection of the alleged accident, or of the plaintiff being involved in any accident at all. He similarly cannot recall rescuing the plaintiff from the bench top as claimed, nor any of the alleged complaints about the chain block.
However, Mr Moody does remember conversations with the plaintiff during early 1990 when the latter complained about a pain in his side and later stated that he had sustained a hernia as a result of "turning these frames". At the time of these conversations Mr Moody did not remember any relevant incident and his evidence is:
"That's what … I can't understand. I can't remember any of this, what Tom's saying that I was there and lifted the frame off him and all this but - I don't recall any of that at all and I'm positive I would have remembered if I'd been out there and lifted his frame off him." (T 379)
Expert evidence as to the cause of the accident has come from an engineer/scientist called by the plaintiff, Mr W J Apgar. Based on information provided by the plaintiff prior to trial, Mr Apgar constructed the model of the lifting apparatus and frame (Exhibit "P7") which has been referred to extensively during evidence for demonstration purposes.
It is relevant to note that Mr Apgar came to Court ready to give an opinion based on a version of events not entirely consistent with the evidence. However, with counsels' consent I put the plaintiff's evidence to Mr Apgar during the course of his cross‑examination (T 295-301). Mr Apgar commented on this version of the accident as follows:
"If he had picked up the load and it was not centrally located and if it started to lower and it swung out, say, not in line with the chain block but at a slight angle, then as it lowered and the chain block ran it could swing. If it was - especially if it came down on one of the feet, if there were feet, again that would move the pivot point in a little bit and it would be more inclined to swing about. The chain block would try to follow it and the chain block would, yes, run away and then the other and because of it's mass would tend to overrun before running back. So what he has described is physically possible if the thing tipped and slid. It would also tend to swing around as we just demonstrated … ." (T 299)
I then asked Mr Apgar to explain how it would be physically possible for the heavy bottom corner of the frame to finish up on top of the bench. In Mr Apgar's opinion it was not physically possible for this to have occurred, and this aspect of the alleged accident would only be explicable if the plaintiff's use of the term "bottom" changed during the course of his evidence. (In other words if towards the end of his account the plaintiff was referring to the "bottom" of the frame when in a horizontal as distinct from a vertical position.)

The plaintiff's initial complaints and symptoms

The plaintiff has testified that immediately following the accident on 20 December 1989 he was "sore all over" and "just sore in a lot of spots". When he got home that day he had a hot shower, took some Panadol, and "just laid down" (T 24).
Over the following days the plaintiff "was sore but … didn't want to let that get to me so I just kept on going" (T 25). He continued to work up until the Christmas break and then following a brief holiday went back to work again on 2 January 1990.
During the plaintiff's Christmas holiday there was a big event in his personal life. On 29 December 1989 the plaintiff's then fiance and present wife arrived for the first time from Germany. The plaintiff had not previously met his fiance who was a friend of his sister and had been introduced to him by telephone. The couple married on 20 January 1990, and on 4 February 1990 Mrs Schmerer returned to Germany temporarily in order to obtain a permanent visa for re‑entry into Australia.
When the plaintiff returned to work on 2 January 1990 he told Peter Moody that he was "pretty sore" and indicated that he had pain in "the groin area and the back". Mr Moody suggested that he might have appendicitis and advised him to see a doctor. The plaintiff himself thought he might have appendicitis and at that time did not associate his symptoms with the first accident (T 80).
The plaintiff then attended upon the general practitioner, Dr Kromhout. According to him, she diagnosed hernias on both sides but said "Let's concentrate on the right one" because that was the worst (T 26). Dr Kromhout also told the plaintiff that when he went back to work he was to tell his boss that he was not to do anything strenuous involving lifting of weights more than 5kg.
The plaintiff passed on this advice to Peter Moody, but the latter took no notice and assigned work which involved welding and lifting (by hand) "other" frames weighing 60 or 70kg. While performing this work up until 24 January 1990 the plaintiff experienced "pain in both my legs, in the groin, in both testicles, my hernia, and pain in my shoulders" (T 27).
On 24 January 1990 Dr Kromhout issued a workers' compensation certificate stating that the plaintiff was not to lift weights above 5kg. The plaintiff gave this certificate to his employers but by then his work on welding and lifting frames had finished. The plaintiff continued to work intermittently for the first defendant until 5 February 1990 when Peter Moody said that "he didn't need me and my services any more". For four days prior to 5 February the plaintiff had been off work with gastroenteritis (T 29).
The plaintiff continued to see Dr Kromhout who prescribed a hernia brace. She also referred him to the surgeon, Dr Thompson, at Royal Perth Hospital who examined the plaintiff on 12 February 1990. The plaintiff was put on a waiting list and ultimately on 20 May 1991 Mr R J Goldman performed surgery to repair the right hernia.
During cross‑examination it was put to the plaintiff that he first complained about lower back symptoms approximately two years after the first accident. The plaintiff denied this and was adamant that he had told Dr Kromhout of his back injury "from day one" (T 92).
The plaintiff was also cross‑examined about previous statements which were allegedly inconsistent with his evidence as to his symptoms. In this regard, a statement signed by the plaintiff on 14 March 1990 (Exhibit "1D1") asserted that he "felt a sharp pain on the lower right side of my body" at the time of the first accident, and that he "believed that I may have strained a muscle in my side at this time".
An affidavit sworn by the plaintiff on 13 September 1990 in support of his workers' compensation claim (Exhibit "1D3") asserted that at the time of the first accident he "experienced a sharp knife like pain in my right groin region". The affidavit referred only to the hernia injury and did not refer to any other relevant symptoms. It is the plaintiff's evidence that this aspect of the affidavit is "incorrect" because at the material time he had pain "right around the lower back" (T 92).
Furthermore, the writ issued by the plaintiff in April 1991 claimed damages for an injury comprising only a right inguinal hernia. (It is apparent from the Court file that the additional claim in para 9 of the statement of claim that the plaintiff sustained a "soft tissue injury involving the lumbar spine and aggravation of a previous spinal fusion" came about as a result of an amendment on 21 August 1997.)
Mr Peter Moody has testified that the plaintiff first complained of symptoms when the latter said that he had a pain in his side and there was a discussion whether it was appendicitis (T 378-9). After the plaintiff had been to see Dr Kromhout, he told Mr Moody that he had a hernia as a result of "turning these frames". Soon afterwards the plaintiff also indicated that he was claiming workers' compensation.
Mr Moody terminated the plaintiff's employment on 5 February 1990 because of the latter's "irregular hours". In this regard the plaintiff's working hours had been irregular both before and after the date of the alleged accident (T 380).
It is Dr Kromhout's evidence that when she first saw the plaintiff on 2 January 1990 he was complaining of lower abdominal pain. He told her that he had had the pain since 31 December 1989 and he said that:
"… he had picked up his girlfriend that evening and since then he had a constant pain that was gradually getting worse, so that made him come to me." (T 149)
Dr Kromhout diagnosed a hernia on the right side in the inguinal area and referred him to the surgical clinic at Royal Perth Hospital. She also advised the plaintiff to wear a brace to keep the hernia in. Although on 2 January 1990 the plaintiff did not make reference to any particular work incident, Dr Kromhout noted that the hernia was "painful at work" because he did "lots of lifting" (T 150). (I understand this to refer to pain experienced by the plaintiff upon his return to work earlier on the day of the appointment.)
Dr Kromhout next saw the plaintiff on 21 January 1990 at which time he asked her to treat his symptoms as a work injury. The doctor noted at that time that there had been pain since "Christmas 1989". She agreed to issue a workers' compensation certificate on the basis that the hernia had been developmental in nature and had been brought about by heavy lifting conditions at work.
On 30 January 1990 the plaintiff complained that the brace was causing lumbar pain as well as numbness of the leg. This was a normal symptom from wearing the brace and the doctor did not attribute it to any separate lumbar problem. (The plaintiff did not in fact complain of any lumbar problem until January 1992.)
The plaintiff subsequently developed depression because of his inability to work and the fact that he was on a long waiting list for surgery. The hernia repair operation was performed in May 1991, but there was post‑operative swelling and the plaintiff was referred back to the surgeon (Mr Thompson) in June 1991. On 11 October 1991 Dr Thompson diagnosed possible nerve entrapment at the site of the surgery.
During cross‑examination Dr Kromhout clarified that on 24 January 1990 the plaintiff told her that there had been hernia pain on and off since Christmas 1989, but from the incident when he had picked up his girlfriend on 31 December 1989 the pain had been constant. The plaintiff never told Dr Kromhout about any particular incident at work which had brought on pain. Dr Kromhout also contradicted the plaintiff's evidence that she had initially diagnosed a left‑sided hernia as well as that on the right.

Other evidence as to the plaintiff's initial complaints has come from a former fellow employee at the first defendant's premises, Mr P W Richardson. Mr Richardson noticed a change in the plaintiff prior to the latter ceasing employment (on 5 February 1990). In this regard:
"Before he left he seemed less mobile and stooped in his walking … instead of standing up straight he was sort of leaning over at, I don't know, whatever angle, 20 degrees from vertical." (T 344)
When Mr Richardson queried the plaintiff the latter told him that he had a hernia which had happened while "turning over some of the gear that we were making there" (T 344 - this evidence was admitted to rebut any suggestion of recent invention by the plaintiff).
It is common ground that the plaintiff did in fact sustain a right inguinal hernia, but there is of course an issue as to when this occurred. The parties have sensibly come to agreement as to certain facts surrounding the injury, which facts are as follows:
"1.According to medical reports no bulge in the groin was ever identified.
2.A working diagnosis was made of an indirect inguinal hernia at Royal Perth Hospital when the plaintiff presented on 9 February.
3.Mr Ivan Thompson who saw the plaintiff on 12 February accepted the diagnosis of an indirect inguinal hernia although he did not find any protrusion. (See his report of 12 February 1990).
4.On operation on 20 May 1991 by Mr R J Goldman, a weakness was found in the posterior wall of the inguinal canal which he categorised as a direct inguinal hernia.
5.There was no obvious hernia palpable at the time of examination but a cough impulse was noted.
6.On operation there was no peritoneal sac.
7.The weakness in the transversalis fascia was repaired with a prolene darn.
8.The weakness would have been sufficient to cause symptoms in the groin."

The plaintiff's subsequent condition up until the second accident

As already noted the plaintiff ceased working for the first defendant on 5 February, and his fiance returned to Germany on 4 February 1990. It is his evidence that thereafter he was in receipt of sickness benefits and living with his 8 year old son. He was not working at all "because I had my son to look after". Throughout this period up until the hernia operation on 20 May 1991 the plaintiff's physical condition was "very sore" (T 31).
Following the plaintiff's surgery on 20 May 1991 he started looking for welding work. One potential employer required the plaintiff to perform an eight hour welding test, but towards the end of this test he was unable to complete it because of pain in his right side (T 32). Consequently the plaintiff was referred by Dr Kromhout to Dr Thompson once again, by which time he had swollen testicles and "a bit of a lump on the righthand side".
The plaintiff was then referred to a rehabilitation clinic, and as I understand his evidence during the period 1992 to 1994 he received various modes of treatment including the use of a TENS machine, acupuncture, laser acupuncture, herbal medicine, and psychiatric counselling.
I also understand the plaintiff to say that his symptoms throughout this period comprised "pain from my shoulder, through my chest, all the way down" with the pain being worst in the groin and right side of the lower back (T 33). There was no improvement in the symptoms until about 1994 when the pain "just sort of petered down again where I was able to cope with the pain" (T 35).
From May 1993 the plaintiff ceased seeing Dr Kromhout, and instead attended on the general practitioner, Dr A C Jameson. Dr Jameson at various times referred him to "a whole lot of other doctors" (T 36) including Drs Thrum, Griffiths, and Slinger.
It is the plaintiff's evidence that during the period up until the second accident he was not really fit to work and had considerable limitations in the physical things he was able to do:
"… the main thing where I could help my wife was doing the washing up and drying it. That is about as much (as) I could do, and do a bit of dusting here and there." (T 36)
Mrs Monica Schmerer has testified that she noticed a change in her husband between the period when she first knew him (from 29 December 1989 to 4 February 1990) and that following her return to Australia on 4 June 1990. During the first period the plaintiff had been "happy-go-lucky", and "when he came home from work he was very happy". However, following her return from Germany "he was in pain and he was not happy really at all" (T 234).
In relation to work around the house it is Mrs Schmerer's evidence that "I do everything and this is what's bothering him most". Furthermore, "over the years he getting worse with the personality. You know, I can't handle this" (T 234).
It is Dr A D Jameson's evidence that at his first consultation with the plaintiff in May 1993, the latter gave a history of a work accident in December 1989 resulting in injuries to the back, sacrum, buttocks, right hip, right groin and both shoulders. Upon examination there were stiff muscles on both sides, as well as very limited movements and tenderness throughout the lower back. Although there was no sciatica, there was subjective numbness to sensation over most of the plaintiff's legs. Dr Jameson diagnosed a chronic soft tissue injury and "post‑trauma/strain myofascial pain syndrome of his lumbosacral paravertebral and rotators of the right hip" (T 117 and Exhibit P8).
Dr Jameson prescribed stretch exercises and walking, as well as a continuation of (and later an increase in) the plaintiff's regime of medications. In July 1994 Dr Jameson referred the plaintiff to the Pain Clinic at the Royal Perth Rehabilitation Hospital for assessment as to the use of a stronger narcotic analgesic.
At all material times Dr Jameson had frequent consultations with the plaintiff at least every fortnight. On these occasions he noted that the plaintiff's symptoms fluctuated depending on factors such as "stress levels, mood, depression, agitation, whether or not he has done too much". In Dr Jameson's opinion, by the date of the second accident, "the programme of seeing him, encouraging him to just get on with his life, trying to get him to see psychological support persons, led to some improvement" (T 118).
The reports of the orthopaedic surgeon, Mr E R Griffiths, have been tendered by consent (Exhibit P8). Mr Griffiths performed the fusion operation on the plaintiff in 1982 and saw him again on 16 June 1992. Mr Griffiths obtained a history that at the time of the first accident the plaintiff had suffered a "strain of the back" as well as the hernia. Based on this history, Mr Griffiths reported on 16 June 1992 that:
"… this young man has sustained a strain of his lumbar spine and enough stress to produce a right inguinal hernia which required surgical repair, these injuries resulting from an accident occurring at work on 20 December 1989."
However, Mr Griffiths was unable to find "little in the way of defect" in the lumbar spine. The 1982 fusion was still very sound and apart from "some evidence perhaps of soft tissue strain of the lower lumbar spine" there was no evidence of any other problems (Exhibit P8). After noting that the plaintiff had "a lot of anxiety" Mr Griffiths expressed the opinion that:
"I do not believe that he has a permanent limitation upon return to his trade. I believe a very vigorous programme of rehabilitation to improve his physical wellbeing and his self‑confidence would be a value to him and should be conducted." (Exhibit P8)
In July 1993 the plaintiff's solicitors referred him for an assessment and opinion from the spinal surgeon, Mr B Slinger. Mr Slinger also noted a history of complaints of low back pain dating from the first accident. According to the plaintiff he had pain in the lower back which radiated into both lower limbs to the feet. These symptoms were aggravated by walking and there was "a burning discomfort" throughout the back. The plaintiff also had symptoms of numbness in the legs, back and buttocks as well as cramp in the right hip when sitting. The cramp was aggravated by driving, which activity also caused the plaintiff's legs to shake. The plaintiff was able to perform minor tasks around the house such as washing up and "he did attempt vacuuming but that was an aggravating factor" (Report 1 August 1993).
Upon examination by Mr Slinger the plaintiff's spine was tender from the mid‑thoracic region to the lumbosacral junction. Movements were restricted and there was sensory impairment of stocking distribution which extended from the umbilicus to the toes. Cervical movements were full and pain free. On 1 August 1993 Mr Slinger reported as follows:
"This man has symptoms which do appear to relate to the accident of 1989 and presumably relate to soft tissue injury to the segment above the level of fusion at L4/5.
I would not have thought this man is a surgical candidate. I obtained the impression that anxiety is playing a part in maintaining his symptoms and that is consistent with the diffuse nature of his symptoms in both the proximal and distal spine, certainly I cannot explain his symptoms in the proximal spine, shoulders or upper limbs in relation to the accident of 1989.
I believe that the major thrust of this man's management should be towards finalisation of his claim, that he would benefit from psychological counselling and would benefit, I am sure, from relaxation techniques, to alternative measures of pain relief to controlling his symptoms by controlling his activities which he appears to be doing at present and to maintaining his muscle tone which is surprisingly good considering his stated level of inactivity."

The evidence as to the second accident

On 24 December 1994 the plaintiff was the driver of a car involved in a collision in Orchard Avenue, Armadale. The plaintiff was executing a righthand turn into a shopping centre carpark, whilst at the same time another vehicle being driven by Mr B D Orbinski ("the second defendant") was exiting the carpark and cutting across Mr Schmerer's path. During the course of these manoeuvres the second defendant's vehicle collided with the righthand side of the plaintiff's vehicle.
It is the plaintiff's evidence that he was thrown sideways during the collision, and afterwards could not open the driver's door and had to crawl out through the passenger side of his vehicle. When he got out he started exchanging details with the second defendant, but then felt "a little bit sick" and had to be assisted by the second defendant to some nearby grass (where he sat down). His wife then spoke to the second defendant to obtain the rest of the information.
It is the second defendant's evidence that the second accident was relatively minor and was "just mainly a scrape, it wasn't like an actual collision" (T 392), however, the plaintiff had to get out of the passenger side of his vehicle because the mechanism of the driver's door "obviously had scraped".
The second defendant then spoke to the plaintiff and immediately accepted blame for the accident. He did not observe the plaintiff to have any physical problems and was surprised that instead of being "a bit narky" the latter was "very happy and chirpy about the whole situation" (T 394). It is the second defendant's evidence that there was no reason to think anyone was injured in the accident and prior to him driving away from the scene he did not assist the plaintiff to sit on any grass. According to the second defendant, he exchanged details with the plaintiff following the accident and cannot recall the plaintiff's wife being involved in this regard (T 396).
It should be noted that although Mrs Schmerer was a passenger in the plaintiff's car at the time of the second accident she did not give any evidence as to the surrounding circumstances.

The plaintiff's subsequent condition

It is the plaintiff's evidence that immediately following the second accident he was "a bit dizzy" and "a little bit sick" (T 37-8).
Over the following few days he was "a little bit sore" but he just "let it go" until his next fortnightly appointment with Dr Jameson on 28 December (T 38). Over the next few weeks:
"… what was more noticeable was my neck and my headache. I started getting a lot more dizzy spells and occasionally I would get blackouts." (T 38)
It was the plaintiff's evidence‑in‑chief that the headaches came "after about a week or two" (T 39). However, after being cross‑examined as to inconsistent evidence at the first trial on this point the plaintiff said that he had the headache immediately after the collision.
The plaintiff received physiotherapy for the headaches but this only made them worse. As at the date of trial the plaintiff's headache symptoms were as follows:
"Well, the one around the back of the head, that's continuous. The ones around the side of the head are there about once a week, something like that." (T 39)
As a result of the second accident the plaintiff also experienced symptoms in the right shoulder. Furthermore other symptoms "like the right side of my back, that settled down pretty quick after the car accident but the shoulder and the back of my neck that sort of stayed around" (T 39). The plaintiff takes pain killing medications to relieve the headaches. He has not driven a car since the second accident because when he does his "legs start to get the shakes" (T 40).
It is Mrs Schmerer's evidence that approximately half a year after the second accident the plaintiff became "so depressed, and this is still ongoing" (T 234). I understand her to say that the plaintiff also has difficulty sleeping because the first accident "bother him very much, and he have nightmares over that and he talks in sleep" (T 235).
It is also Mrs Schmerer's evidence that in recent years she and her husband have developed a regular routine of getting up in the middle of the night, drinking coffee and then going for a long walk. The couple spend two to two and a half hours walking around the streets of Armadale each night and occupy themselves by picking up discarded aluminium cans. Upon returning home Mr and Mrs Schmerer shower, the plaintiff takes some tablets, and "then we try to go to sleep again" (T 235).
Dr Jameson has continued to see the plaintiff at approximately fortnightly intervals since the second accident. It is his evidence that the second accident:
"… did shift the focus to the upper neck, giving him headaches. He started to need to wear soft collars. It probably took 6 to 12 months after that accident for things to settle down for it to sort of take on its usual focus of pain being more low‑back dominated, hips, legs. At the time, the exacerbation from that motor vehicle accident - it doubled his symptoms, his problems. It would have been representing about 50 per cent of his problem for a short time; less than a year." (T 119)
As a result of the second accident the plaintiff's medications were increased and he was also prescribed physiotherapy (which caused a severe aggravation to the pain coming from the neck). In a report dated 10 July 1995 Dr Jameson stated that the most successful treatment to date had been the use of Prothiaden which had also been used for the treatment of the chronic myofascial pain syndrome resulting from the first accident.
Although approximately one year following the second accident, the plaintiff's condition "settled back" to what it had been previously, in general terms his symptoms have not improved. On 31 January 1997 Dr Jameson reported:
"Mr Schmerer's condition is virtually unchanged. With regard to his neck, he experiences pain from the occipital areas on both sides radiating down the back of his neck. With respect to his exacerbation of his previous back injury, he experiences pains across the lower back and pains higher up between the scapula. He has difficulty weight bearing on the right leg. He experiences pain from his back down to the right foot and after walking he describes a loss of sensation again in his right leg. He comments that his balance is impaired. This appears to affect his gait. He still complains of pain around the inguinal area bilaterally.
Examination demonstrates a man who is tender to touch anywhere, has a poor range of motion of his back and neck, however, shows normal muscle mass, normal reflexes and no signs of sciatic or other peripheral nerve entrapment.
His prognosis for the future is unlikely to change. His chronic pain has followed this pattern since my last report in March, 1996. I feel certain it is made worse by the depression and psychological situations surrounding his strong sense of injustice with regard to previous employers and doctors."
By May 1998 the plaintiff was still complaining of "hurting everywhere". His continuing treatment consisted of psychological support and extensive medications including 50mg of Morphine slow release capsules twice a day. In May 1999 Dr Jameson also referred the plaintiff to the Armadale Clinic for psychiatric treatment by Dr K Abramowicz. Dr Abramowicz made a diagnosis of depression which fluctuated with his level of pain. The plaintiff also:
"… described depressive ruminations of not being able to stop thinking about the accident and protracted legal battle. He voiced his desire to get justice from his past employer who endangered him unnecessarily." (Report 20 April 2000)
Dr Abramowicz was of the opinion that the plaintiff's pain and depression were inter‑related and each was making the other worse. Contributing factors were the plaintiff's loss of employment, loss of physical health, and sustained levels of high stress. The treatment prescribed by Dr Abramowicz was anti‑depressant medication and psychological counselling as to relaxation, stress and pain management techniques.
The plaintiff attended upon Mr B S Slinger once again on 20 April 2000. Amongst the findings made by Mr Slinger upon examination was that the plaintiff "walked with a curious loping gait, with hips and knees flexed, favouring the left lower limb" (report 1 May 2000). Mr Slinger considered the plaintiff to be totally and permanently unfit for employment. However, the major contribution to that incapacity was his depressive symptomatology and illness.

Other medical opinions

For legal and forensic reasons, the plaintiff has also been referred to various other specialists for their assessments and opinions. The first of these was the occupational physician, Professor A C Harper, who first saw the plaintiff (at the request of the plaintiff's solicitors) on 23 August 1996.
It is relevant to note that Professor Harper's physical examination did not reveal findings as extensive as those observed by Dr Jameson (Dr Jameson confirmed that Professor Harper's findings were "very different" from the way in which the plaintiff usually presented to him and he "would have liked to have been there and watched him do it" - T 137). Professor Harper nevertheless considered the prognosis to be very poor, and in his 1996 report expressed the following opinion:
"Mr Schmerer's pain and disability cannot be fully explained by the direct physical injury of 20.12.89 but rather is a combination of that injury and his reaction to it and the resulting depression. His disability dates from the work accident and is a lot more severe than would have been expected. I attribute a proportion of his current disability to the work accident. The role of the motor vehicle accident on 24.12.94 on the other hand aggravated symptoms principally because of Mr Schmerer's vulnerability due to his general debility, depression and chronic pain."
The plaintiff was reviewed by Professor Harper once again on 27 April 2000 at which time his condition was "generally unchanged" from 1996. In a report dated 27 April 2000, Professor Harper stated:
"I find Mr Schmerer a genuine individual who is severely disabled. Although I cannot explain his symptoms and disability in terms of physical pathology I feel his disability is involuntary and that he is not malingering. My diagnosis is a pain disorder associated with psychological factors and a general medical condition in the form of the initial injury. His whole body disability exceeds 30 per cent."

At the request of the defendant, the plaintiff was examined by the orthopaedic surgeon, Mr P I Cromack on two occasions (14 April 1997 and 26 May 1998). Following the first consultation, Mr Cromack expressed the view that:
"… this is certainly a confusing case with multiple symptoms stemming from multiple incidents. It is not helped either of course by whatever psychological/functional problem the patient suffers from, nor … (by) his rather excessive drug intake which undoubtedly would appear to be slowing his thought processes apart from any other aspect." (Report 14 April 1997)
In Mr Cromack's opinion the plaintiff demonstrated "excessive pain behaviour" with "stiffness and limitation (which) appeared to disappear when he was distracted". He could find no evidence of increased disability in the lumbosacral region as a result of the 1989 incident, nor was there evidence of any significant injury or continuing disability as a result of the road accident. In Mr Cromack's opinion:
"What we are left with is the patient's abnormal illness behaviour, which I believe is being exhibited by abnormal responses to pain. I do not think the cause of this lies in any of his injuries, but very probably from non‑work causes." (Report 27 April 1997)
At the second consultation on 21 May 1998 the plaintiff presented to Mr Cromack with "worsening of his clinical picture". Mr Cromack could not find any reason for this and considered that "the patient is suffering from some degree of depressive illness with psychological and psychiatric overlays". His findings were essentially the same as before (Report 26 May 1998).
During 1996 the plaintiff's solicitors referred him for a psychiatric assessment by Professor P W Burvill. Following that assessment Professor Burvill considered that there were "rather complex psychiatric problems" and that the history indicated:
"… that he felt very bitter and resentful about the circumstances of the accident in 1989, and particularly about the alleged reluctance of his general practitioner at the time to investigate his disability properly and to refer him to relevant specialists." (Report 14 August 1996)
It was also Professor Burvill's view that the plaintiff was totally incapacitated for his pre‑accident work. The reasons for this appeared to be "secondary to a complex interaction between his physical disability and pain, the major psychogenic component to the latter, and his depression". Following a further consultation with the plaintiff on 19 April 2000 Professor Burvill expressed the opinion that:
"His current psychiatric diagnosis would be a major depressive illness, and associated anxiety symptoms, at present under partial remission with very large dosages of anti‑depressant medication. The long history of his depression, and its persistence despite (a large dosage of medication) would indicate that the depression is chronic." (Report 27 April 2000)
During 1996 the plaintiff was also assessed by the psychiatrist, Dr Zelko Mustac, at the request of the first defendant. Dr Mustac concluded that the plaintiff had "a strong motivation to see himself as a disabled individual" and that:
"He is a gentleman who is determined to have his complaints of physical impairment and disability vindicated. There is obviously a conscious effort to exaggerate his complaints as well as underlying emotional and personality difficulties which encourage him to relate in a dependent manner to his wife …
I do not think, in conclusion, that the episode in 1989 is relevant to his current presentation." (Report 15 December 1996)
The plaintiff was again seen by Dr Mustac on 2 June 1998 and 7 April 2000. Following the 1998 attendance Dr Mustac expressed the view that the plaintiff's use of opiate analgesics was inappropriate and that he was presently dependent upon them. He was also of the opinion that:
"This is one of those diagnoses, which has a physical presentation but may be related to psychiatric issues instead of any underlying pathophysiological explanation. The debate regarding it is still unresolved. Regardless of this, however it is difficult to see how any of these complaints are related to the inguinal hernia in 1989."
Following the April 2000 attendance, Dr Mustac confirmed his previous diagnoses of opiate dependence and dependent personality traits, and also expressed the opinion that the plaintiff was malingering. With regard to the latter:
"It is clear that he is intent on pursuing his medico‑legal claim and his exaggerating it includes a very unusual walking style. As indicated he both walked in and out of my office, curtseying to the point where his knee was flexed to almost 90 degrees as he walked along. I am sure that there is no way Mr Schmerer could walk for two hours maintaining this type of gait." (Report 28 April 2000)
The "very unusual walking style" referred to by Dr Mustac was readily apparent when the plaintiff entered and left the witness box. It is difficult to put into words the manner in which the plaintiff ambulates himself, but his physical demeanour can fairly be described as that of a severe cripple. The evidence also suggests that the plaintiff habitually moves in this manner. In this regard, Dr Jameson (who as a busy general practitioner makes many home visits in the Armadale area) has often driven past or come across the plaintiff unawares and observed him walking in this same way (T 126).

Findings of fact as to the first accident

The essential issues to be determined are whether the first accident happened at all, if so whether it was the cause of the plaintiff's very extensive subsequent symptoms, the impact on those symptoms of the second accident, and the true extent of the plaintiff's residual condition. The findings of fact in respect of these issues depend very much upon my assessment of the plaintiff's credibility.
It is appropriate to state at the outset that as with most of the doctors who have treated the plaintiff, he impresses me as being "genuine". This is so despite some inherent anomalies in his account of relevant events, and his obvious inability to perceive that such anomalies exist. While I am satisfied that the plaintiff is basically an honest witness, this does not of course mean that his evidence is necessarily reliable. The evidence overall in fact tends to show that some of the plaintiff's assertions cannot possibly be correct.
In this regard there is firstly the evidence of the expert Mr Apgar to the effect that it was not physically possible for the first accident to have occurred fully in the way as described by the plaintiff. In particular, it is not logically possible that the heavy "bottom" end of the frame could in some way have lifted itself up off the floor and finished up on top of the bench. I have carefully considered whether the plaintiff's evidence is explicable on the basis that at that point in his account he was referring to the "bottom" of the frame when in a horizontal position. However, the clarification I sought from the plaintiff at page 43 of the transcript makes his evidence on this issue crystal clear, and there is simply no room for any interpretation other that that he was referring to the "bottom" when in a vertical position.
The plaintiff is also in conflict with Mr Peter Moody as to events immediately following the first accident. Mr Moody impresses me as an honest witness, and I believe he is reliable and accurate when he says that he cannot recall lifting a frame off the plaintiff while the latter was trapped on a bench. Mr Moody is positive that he would have remembered such an event if it had occurred, and in this respect he would have had occasion to so remember when the plaintiff first complained of symptoms approximately two weeks after the alleged incident.
The plaintiff is in further conflict with Dr Kromhout who I find to be an honest witness who has given reliable evidence based upon notes taken at the time of her initial consultations with the plaintiff. She denies having diagnosed a left‑sided hernia as well as the one on the right, and has also testified that the plaintiff made no complaint about a lumbar back problem until 1992. Accordingly, I am unable to accept the plaintiff's evidence that he told Dr Kromhout about the alleged back injury "from day one".
I have no hesitation in accepting Dr Kromhout's evidence that when she first saw the plaintiff on 2 January 1990 he made no reference to the alleged work incident on 20 December 1989. He instead attributed his hernia symptoms to an incident on 31 December 1989 when "he had picked up his girlfriend that evening and since then he had a constant pain that was gradually getting worse". (It should be noted that during the present trial, unlike the first trial, there has been no issue raised as to whether the words "picked up" as used by the plaintiff to Dr Kromhout were a reference to him collecting his fiancee from the airport on 29 December 1989.)
On 21 January 1990 Dr Kromhout issued a workers' compensation certificate in respect of the hernia injury. This is not inconsistent with the history she had obtained from the plaintiff given her opinion at the time that the hernia was developmental in nature and had been brought about by the plaintiff's heavy lifting activities at work. This contemporaneous interpretation of the injury is also consistent with the plaintiff telling Mr Moody at or about that time that the hernia was a result of "turning these frames". Prior to then the plaintiff (on his own evidence) had not associated his symptoms with the alleged incident on 20 December 1989. (This is so notwithstanding his later claim that he experienced a "sharp knife like pain" in his right groin at the material time.)
There are further inconsistencies in the plaintiff's evidence as to his initial symptoms when compared to statements made by him in March and September 1990. These statements were made in support of his workers' compensation claim and made no reference at all to any lumbar back symptoms. Furthermore, the writ in the present action when issued in April 1991 limited the claim to damages for a hernia injury. It was not until 1997 that amendments to the statement of claim extended the range of symptoms said to have been initially suffered. These inconsistencies cannot be explained on the basis that the existence of the symptoms was not appreciated at the time. The only reasonable inference is that the plaintiff's instructions and factual assertions have changed over the years.
There are other aspects of the plaintiff's account of events which have changed with time. For example, Mr Apgar obtained a very detailed account of the first accident for the purposes of his report dated 12 May 1997 (Exhibit "P6") and the plaintiff told him at the time that immediately beforehand:
"The load hook was hard up against the chain block and it jammed in that position."
However, the plaintiff's evidence at trial was that at the material time the load hook was not hard up against the chain block but in fact jammed when it still had 10 or 12in to travel (T 69-71).
I do not consider it necessary to delve into other more minor conflicts in the evidence which count against the plaintiff. It is clear to me that the collective weight of all of the contrary evidence leads inevitably to the conclusion that the plaintiff's version of events cannot be relied upon. In the absence of expert evidence it is not appropriate that I speculate on the psychological processes that might have enabled the plaintiff to come to the belief that certain things happened which did not in fact happen. However, I suspect that the seeds of that belief can be found in a sense of grievance generated by the rejection of the plaintiff's initial workers' compensation claim and his long wait for a hernia operation. The subsequent development of severe depression and the functional component of his symptoms is well documented in the medical reports.

Findings of fact as to the second accident

The only substantial issue as to the second accident is the extent of the symptoms that it caused. The second defendant impressed me as an honest and reliable witness, and I prefer his evidence to that of the plaintiff as to the circumstances of the accident. I find that the collision was more in the nature of a minor scrape than a severe impact, and that the plaintiff did not manifest any apparent injury immediately afterwards.
The plaintiff himself has given conflicting evidence as to the nature of the symptoms he experienced on the day of the accident. Furthermore, it is clear that whatever these symptoms were, they were not sufficient for him to feel any need to seek immediate medical attention. He was willing to wait until his pre‑arranged fortnightly appointment with Dr Jameson some four days later on 28 December 1994.
Given my previous findings in relation to the first accident, it is difficult to determine the nature of the plaintiff's condition immediately prior to the second accident. What had started as a minor hernia in January 1990 had developed into a conglomeration and wide array of unrelated symptoms which had no physical explanation, but necessitated fortnightly visits to a general practitioner as well as an intensive regime of medication. These medications included morphine and the level of intake had been steadily increasing. As late as 21 October 1994 Dr Jameson had referred the plaintiff to Dr Perlman at Royal Perth Rehabilitation Hospital suggesting the prescription of "something a bit stronger".
I accept Dr Jameson's evidence that the main focus of the plaintiff's symptoms at that time had been on his lower back, whereas for approximately a year following the second accident the main focus changed to the head and neck. However, I cannot be satisfied on the balance of probabilities that there was any physical basis for this change in symptomatology. Accepting for present purposes that the plaintiff was "genuine" with his complaints, the only reasonable inference is that the symptoms attributed to the second accident were psychological in origin.
A tortfeasor must of course take his victim as he finds him, and I have considered carefully whether these psychological sequelae can reasonably be said to have been caused by the second accident. The problem from the plaintiff's point of view is that all of the relevant expert opinions are based upon assumptions of fact contrary to the findings I have made in respect of the first accident. This I am sure has come about as a result of the treating doctors accepting the history given by the plaintiff as to the physical injuries allegedly suffered on 20 December 1989.
As it is, the expert evidence does not provide any rational explanation for the plaintiff's condition during the period prior to the second accident. Similarly, and in respect of the plaintiff's subsequent condition, the opinions favourable to the plaintiff seem to assume that at the very least there were some minor physical injuries sustained in the second accident.
In the end, the evidence does not enable me to determine whether the plaintiff's condition subsequent to the second accident was in any way contributed to by that event. An equally reasonable inference in all of the circumstances is that his subsequent condition was simply a further development of whatever the problem was that he had previously. The fact that the plaintiff did not sustain any physical injury in the second accident arguably lends weight to the latter proposition.
In my view, even if I was able to infer that the plaintiff sustained some form of injury as a result of the second accident, it is most unlikely that the quantum of his damages would exceed the statutory threshold of $10,200.

Conclusions

In light of all of the above findings, it is clear that the plaintiff's claim against each of the defendants must be dismissed. This is a sad and tragic case and I do not doubt that the plaintiff will be devastated by the outcome. Nevertheless, my decisions must be based upon the evidence, and for the reasons as stated the plaintiff has simply failed to discharge his burden of proof in each instance.