Swallow v Harmon
[2024] WADC 90
•23 OCTOBER 2024
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: SWALLOW -v- HARMON [2024] WADC 90
CORAM: PALMER DCJ
HEARD: 20-24 MAY 2024, WRITTEN SUBMISSIONS 10 & 11 OCTOBER 2024
DELIVERED : 23 OCTOBER 2024
FILE NO/S: CIV 1614 of 2020
BETWEEN: JESSE KEMP SWALLOW
Plaintiff
AND
GARY PATRICK HARMON
Defendant
Catchwords:
Negligence - Motor vehicle accident - Whether back injury caused by accident - Assessment of damages
Legislation:
Civil Liability Act 2002 (WA)
Evidence Act 1906 (WA), s 79C
Motor Vehicle (Third Party Insurance) Act 1942 (WA), s 3C
Road Traffic Code 2000 (WA), reg 95
Result:
Judgment for plaintiff
Damages assessed
Representation:
Counsel:
| Plaintiff | : | Mr G R Hancy |
| Defendant | : | Mr C C Rimmer |
Solicitors:
| Plaintiff | : | Carter Dickens Lawyers |
| Defendant | : | Sparke Helmore Lawyers |
Case(s) referred to in decision(s):
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
City of Stirling v Tremeer (2006) 32 WAR 155
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
East Metropolitan Health Service v Ellis (by his Next Friend Christopher Graham Ellis) [2020] WASCA 147
Ellis (by his Next Friend Christopher Graham Ellis) v East Metropolitan Health Service [2018] WADC 36
Lawrence v Province Leader of the Oceania Province of the Congregation of the Christian Brothers [2020] WADC 27
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 62 ALR 85
Pollock v Wellington (1996) 15 WAR 1
Strong v Woolworths Ltd t/as Big W [2012] HCA 5; (2012) 246 CLR 182
Van der Velde v Halloran [2011] WASCA 252
Veitch v Connor [2023] WADC 38
Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375
Watson v Foxman (1995) 49 NSWLR 315
Table of Contents
Introduction
Mr Harmon's driving was negligent
Whether Mr Swallow's evidence was reliable
Mr Swallow's lower back and the medical evidence
Whether Mr Swallow's lower back injury was caused by the accident
The effect of the accident on Mr Swallow's mental health
Non-pecuniary loss
Past loss of earnings
Future loss of earnings
Past and future gratuitous services
Future medical expenses
Past and future travel
PALMER DCJ:
Introduction
On 9 October 2017 Mr Harmon (the defendant) drove his car into a car being driven by Mr Swallow (the plaintiff). At the time Mr Swallow was on a roundabout, driving home from work. Mr Harmon entered the roundabout from the north and struck the left‑hand passenger side of the car Mr Swallow was driving, causing the car to spin.
This judgment is principally concerned with the assessment of the damages to which Mr Swallow is entitled. Mr Harmon did not admit that the accident caused Mr Swallow any injuries and alleged that the injuries Mr Swallow complained of following the accident were caused, or contributed to, by a pre-existing back condition. It is therefore necessary to consider whether the accident caused Mr Harmon any injury.
It is also necessary to determine whether the accident was caused by Mr Harmon's negligence. Although Mr Harmon admitted the circumstances of the accident, he did not admit negligence (although he also did not dispute his negligence).
The principal issues for me to determine are therefore as follows:
(a)whether Mr Harmon's driving was negligent;
(b)what injuries were caused by the accident which includes consideration of the extent to which those injuries were caused or contributed to by Mr Swallow's pre-existing back condition; and
(c)the compensation to which Mr Harmon is entitled.
Mr Harmon's driving was negligent
Mr Harmon admitted that he owed Mr Swallow a duty to take reasonable care when driving his motor vehicle to avoid the foreseeable risk of injury to Mr Swallow but did not admit that he breached that duty.
The circumstances of the accident admitted on the pleadings were as follows:
(a)at or around 6.30 pm on 9 October 2017 Mr Swallow was driving in an easterly direction in the roundabout intersection of Kingsbridge Boulevard and Camborne Parkway in Butler; and
(b)whilst Mr Swallow was in the roundabout and had passed the first exit of Camborne Parkway, Mr Harmon entered the intersection driving in a southerly direction along Camborne Parkway and collided with the left side of Mr Swallow's vehicle.
I make the following further findings about the circumstances of the accident based on Mr Swallow's evidence:
(a)there were no other cars in the roundabout when Mr Swallow entered the roundabout;[1]
(b)Mr Swallow was exiting the roundabout when he was struck;[2]
(c)Mr Harmon struck the left-hand passenger side of the car Mr Swallow was driving and spun the car between 90 and 180 degrees;[3] and
(d)as Mr Swallow's car spun, his body shifted violently in the same direction the car was moving.[4]
[1] ts 18.
[2] ts 19.
[3] ts 19.
[4] ts 19.
I am satisfied that Mr Harmon breached the duty he owed to Mr Swallow.
When Mr Harmon approached the roundabout, Mr Swallow had right of way. This is because Mr Swallow was already on the roundabout and the Road Traffic Code 2000 (WA) provides that a driver entering a roundabout must give way to a vehicle that is already on the roundabout.[5]
[5] Road Traffic Code, reg 95.
A driver exercising reasonable care in Mr Harmon's position would have taken the reasonable precaution of complying with the Road Traffic Code and would have given way to a driver who was already on the roundabout. Mr Harmon failed to exercise reasonable care by failing to give way to Mr Swallow. As a consequence of entering the roundabout, he struck Mr Swallow and caused the accident.
Whether Mr Swallow's evidence was reliable
Mr Harmon disputed the reliability of Mr Swallow's evidence and pointed to three aspects of Mr Swallow's evidence that he contended revealed that unreliability.[6]
[6] Defendant's Outline of Submissions dated 7 May 2024 (Defendant's Opening Submissions), par 4; Defendant's Outline of Closing Submissions dated 24 May 2024 (Defendant's Closing Submissions), pars 8 - 10.
First, Mr Harmon submitted that the evidence that Mr Swallow gave that he was not taking painkillers and anxiety medication prior to the accident was untrue.[7]
[7] Defendant's Closing Submissions, par 8.
In his evidence‑in‑chief Mr Swallow said that he was not on antidepressants, or painkillers shortly before the accident.[8] While there is no evidence to suggest that he was taking painkillers shortly before the accident, there is evidence that he was taking an antidepressant.
[8] ts 20.
Dr Crooke had prescribed Mr Swallow the antidepressant Mirtazapine a month before the accident, on 8 September 2017.[9] That prescription was filled on 9 September 2017.[10] Mr Swallow was asked about this discrepancy in cross-examination and he said he could not remember what medication he had been taking in September 2017.[11]
[9] Exhibit 69.
[10] Exhibit 61.
[11] ts 147 - ts 148.
While I accept that Mr Swallow misstated the medications he was taking, I do not draw from this that he was deliberately lying, or intentionally concealing the fact that he was taking antidepressants. It seems to me that Mr Swallow simply made a mistake. Such a mistake was understandable. He was being asked to recall the medication he was taking six and a half years prior.
Secondly, it was submitted that Mr Swallow gave inconsistent evidence about when he began experiencing symptoms in his leg.[12]
[12] Defendant's Closing Submissions, par 9.
It is true that there was some degree of inconsistency in the answers that Mr Swallow gave about when he began experiencing symptoms in his leg. It is important to appreciate however that Mr Swallow repeatedly made it clear that he was unsure when his leg pain first started.[13]
[13] ts 49, ts 94 and ts 115.
The inconsistent answers given by Mr Swallow do not lead me to conclude that he deliberately lied, or concealed matters. Rather, they lead me to conclude that he did not recall when he first experienced leg pain. Mr Swallow properly conceded as much.
Thirdly, it was submitted that it was significant that Mr Swallow did not mention back pain in an online crash report he filed.[14] Mr Swallow did not deny he omitted any reference to back pain.[15] He said that he had his mind on other things at the time. He said that his neck was hurting the most but he thought his back was also hurting.[16]
[14] Defendant's Closing Submissions, par 10.
[15] ts 97.
[16] ts 157.
Generally, having observed Mr Swallow give his evidence in court my assessment of Mr Swallow was that he gave his evidence honestly. I was not satisfied that he had deliberately lied, or concealed matters.
I am conscious that human memory is imperfect and fallible, however. As McLelland CJ in Eq observed in WatsonvFoxman,[17] the fallibility of human memory increases where disputes or litigation intervene and the process of memory is overlaid, often subconsciously, by perceptions of self‑interest. McLelland CJ in Eq observed that '[a]ll too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed'.[18]
[17] WatsonvFoxman (1995) 49 NSWLR 315.
[18] Watson vFoxman (319).
I have been mindful of this when assessing Mr Swallow's evidence.
Mr Swallow's lower back and the medical evidence
Mr Swallow alleged that the accident injured his back and caused him to suffer from anxiety and depression. As I have mentioned, Mr Harmon alleged that any injury that Mr Swallow sustained was caused or contributed to by a pre-existing back condition.
Before I consider whether the accident caused Mr Swallow's lower back injury, it is convenient to make findings about Mr Swallow's history of back complaints, the treatment that he received and the opinions that have been expressed by the medical experts. I make the findings set out in [25] - [38], [53] and [55] - [108] below.
Mr Swallow's history of back complaints
Mr Swallow had suffered from back pain prior to the accident.[19] When he first registered as a new patient at the Jindalee Medical Centre Practice, he had said that he had had shoulder and back problems for years.[20]
[19] ts 20.
[20] Exhibit 26.
Mr Swallow previously had an operation on both shoulders. He also had a sore back from time to time.[21]
[21] ts 146.
On 22 February 2016, Mr Swallow's lumbosacral spine was subjected to magnetic resonance imaging (MRI) by Dr Ashok Kumar who prepared a report dated 23 February 2016. Dr Kumar's report recorded:[22]
(a)a history of two months of low back pain and an inability to lift heavy objects;
(b)at the L5/S1 level a very minor central disc bulge indenting the anterior aspect of the thecal sac but leaving the L5 and S1 nerve roots free. Moderate degenerative changes in the L5/S1 facet joints bilaterally and no obvious spondylolisthesis or spondylolysis; and
(c)no evidence of spinal canal stenosis or disc herniation.
[22] Exhibit 2.
On 12 April 2016, another MRI was performed on Mr Swallow's right shoulder, by Dr Himanshu Pandey who prepared a report dated April 2016. Dr Pandey's report recorded:[23]
(a)mild supraspinatus and infraspinatus insertional tendinopathy;
(b)mild subacromial-subdeltoid bursal thickening and bursal effusion; and
(c)mild degenerative change at acromioclavicular joint with subarticular marrow reaction on the clavicular side.
[23] Exhibit 3.
On 22 December 2016, Mr Swallow saw Dr Yeshwanth Lekha at the Jindalee Medical Centre. Dr Lekha's notes record that Mr Swallow asked for a prescription for Tramadol for 'LBP' and described getting muscle spasms when he went to the gym. The notes record that Dr Lekha prescribed Tramadol.[24]
[24] Exhibit 69.
A history of the prescriptions that Mr Swallow has received records that he filled a prescription for Celecoxib (an anti‑inflammatory)[25] and Tramadol on 3 June 2015, 11 February 2016, 7 April 2016 and 23 June 2016. He also filled prescriptions for Tramadol only on 22 May 2016, 1 June 2016 and 22 December 2016.[26] I find that Mr Swallow filled these prescriptions because he was experiencing back or shoulder pain.
October 2017: Mr Swallow consults Dr Crooke
[25] ts 317.
[26] Exhibit 61.
The accident occurred on 9 October 2017.
On 12 October 2017, Mr Swallow went to see his general practitioner Dr Crooke at the Jindalee Medical Centre Practice.[27] Dr Crooke's notes recorded that:
(a)Mr Swallow had been involved in a motor vehicle accident three days previous;
(b)he had pain on the left side of his neck which was a constant ache;
(c)on examination his neck muscles were tender. He had a reduced range of movement;
(d)Dr Crooke thought that he needed a cervical spine X-ray to exclude a fracture and had likely suffered a soft tissue injury; and
(e)Mr Swallow asked for Valium and Dr Crooke prescribed that drug but warned Mr Swallow about the risks of long‑term dependency.
[27] ts 26; Exhibit 49.
On 13 October 2017 an X-ray was performed on Mr Swallow by Dr Victor Wang. Dr Wang reported that he was not able to identify a cause of the pain and he suggested that an MRI or CT would be beneficial.[28]
[28] Exhibit 4.
On 24 October 2017, Mr Swallow again saw Dr Crooke.[29] Dr Crooke's notes recorded that:
(a)Mr Swallow had left shoulder pain;
(b)Dr Crooke recommended that Mr Swallow's shoulder be investigated;
(c)there was a long discussion about Mr Swallow's anxiety; and
(d)Mr Swallow was having difficulty sleeping.
[29] Exhibit 50.
On 2 November 2017, an X-ray and ultrasound were performed on Mr Swallow's left shoulder by Dr Narelle Vujcich. She concluded that there was post-surgical widening at the left acromioclavicular joint and subacromial bursal thickening without convincing sonographic evidence for impingement.[30]
February 2018: Mr Swallow consults Dr Crooke again
[30] Exhibit 5.
On 20 February 2018, Mr Swallow again saw Dr Crooke.[31] Dr Crooke's notes recorded that:
(a)Mr Swallow:
(i)had had neck and back pain since the accident;
(ii)had had an MRI of his neck but he needed a referral for an MRI of his lumbar spine;
(iii)did not ask for any Valium or other medication;
(iv)had ceased taking sustanon as he could not train due to neck and back pain;
(b)Dr Crook noted worsening back pain since November 2017 and referred Mr Swallow for an MRI of the lumbar spine.
[31] Exhibit 51.
On 20 February 2018, Dr Michael Fallon performed an MRI on Mr Swallow's cervical spine.[32] Dr Fallon prepared a report on 21 February 2018 when he concluded that there was:
(a)minor annulus bulging and end plate spurring at C5/C6 along with posteroinferior annulus fissuring;
(b)there was no evidence of a protrusion or nerve compression; and
(c)there was no evidence of left C3 nerve impingement in the field of view imaged.
[32] Exhibit 6.
On 23 February 2018, Dr Fallon performed an MRI of Mr Swallow's lumbar spine.[33] Dr Fallon prepared a report on 26 February 2018 which recorded:
(a)the 'clinical details as: worsening lower back pain since November 2017, pain radiating to left buttock, dull ache and worsening after sitting for 20 - 30 minutes; and
(b)in relation to the L5/S1 level, that disc degeneration was present with annulus bulging. The report said that there was a 7.5 mm left paracentral protrusion with accompanying end plate spurring which impinged upon and posteriorly displaced the budding left S1 nerve root within the subarticular recess. It also said that there was mild facet joint arthropathy, more prominent on the left.
When Mr Swallow first experienced lower back pain
[33] Exhibit 7.
Precisely when Mr Swallow first experienced pain in his lower back was controversial. It was common ground that Mr Swallow began experiencing lower back pain by at least February 2018 but Mr Harmon disputed that Mr Swallow experienced back pain in late 2017.
At trial Mr Swallow's evidence was that after the car crash he had pain in his neck, shoulder and then going down his back.[34] His evidence was that he noticed that as his neck and shoulder pain subsided, his back became worse[35] but there was always pain in all of those areas.[36]
[34] ts 25 - ts 26.
[35] ts 30.
[36] ts 135.
In cross-examination it was put to Mr Swallow that he did not complain to Dr Crooke about back pain until February 2018. Mr Swallow disagreed with this, although he also said that his back pain was progressing and getting worse.[37]
[37] ts 115.
Mr Harmon disputed Mr Swallow's account and contended that his evidence was inconsistent with the contemporaneous documentary evidence.
In the online crash report that Mr Swallow filed on 10 October 2017, he only mentioned experiencing neck pain.[38]
[38] Exhibit 24.
Dr Crooke's notes do not mention Mr Swallow reporting back pain when he saw Dr Crooke on 12 October 2017 or 24 October 2017.
The history recorded in Dr Crooke's notes from the consultation on 12 October 2017 also only mentions neck pain[39] and Dr Crooke ordered an X-ray of Mr Swallow's neck.[40]
[39] ts 26 - ts 27; Exhibit 49.
[40] Exhibit 4.
The history recorded in Dr Crooke's notes from the consultation on 24 October 2017 mentions shoulder pain but not back pain or neck pain.[41] Dr Crooke then ordered an X-ray and MRI of Mr Swallow's shoulder.[42]
[41] Exhibit 50.
[42] Exhibit 5.
In a report that Dr Crooke prepared on 28 September 2018 (see below) Dr Crooke mentioned examining Mr Swallow's back 'again' when he saw him on 20 February 2018. At trial, Dr Crooke commented that this might suggest that he had examined Mr Swallow's back on the first visit, although he said he did not recall doing so.[43]
[43] ts 219.
I am not satisfied that the use of the word 'again' establishes that Dr Crooke examined Mr Swallow's back when he first saw him in October 2017. Dr Crooke's letter dated 28 September 2018 (in which he uses the word again) sets out the investigations he performed in October 2017 and makes no mention of examining Mr Swallow's back then. It seems to me that if Dr Crooke could recall examining Mr Swallow's back in October 2017 when he prepared his September 2018 letter, he would have expressly said so in that letter.
Dr Crooke's note of his consultation on 20 February 2018 provides some support for Mr Swallow's evidence, however.[44] It records that Mr Swallow had been experiencing both neck and back pain since the accident and refers to the worsening of lower back pain since November 2017.
[44] Exhibit 51.
It is possible that Mr Swallow complained of back pain to Dr Crooke in October 2017 and Dr Crooke failed to record this. It seems more likely to me however, that Mr Swallow did not complain of back pain to Dr Crooke at that time. Dr Crooke acted on the complaints of pain that Mr Swallow made. He ordered an investigation of Mr Swallow's neck pain, then an investigation of his shoulder pain. It seems likely to me that if Mr Swallow had also complained of back pain to Dr Crooke in October 2017, then Dr Crooke would have ordered an investigation of Mr Swallow's back pain (as he ultimately did in February 2018).
Dr Crooke's notes of his consultation with Mr Swallow on 20 February 2018 refer to worsening lower back pain since November 2017.[45] If Mr Swallow's back pain did not manifest in November 2017, then this would explain why Dr Crooke did not record Mr Swallow experiencing back pain in his notes when he saw him in October 2017.
[45] Exhibit 51.
That Mr Swallow did not seek any treatment until he saw Dr Crooke in February 2018[46] does not mean that he did not experience back pain from November 2017, although it does suggest that the pain he was experiencing was not severe enough for him to see a doctor.
[46] Defendant's Closing Submissions, par 14.2.
I consider that it is more likely than not that Mr Swallow began experiencing back pain in November 2017, after he saw Dr Crooke and I find accordingly.
While there may be some tension between such a finding and the evidence that Mr Swallow gave at trial, such a finding is more consistent with the contemporaneous documentary evidence and my assessment of the inherent probability of what occurred. To the extent that such a finding is inconsistent with Mr Swallow's evidence, this does not cause me to doubt his honesty. In this regard, I am mindful of the fallibility of human memory given the passage of time and the subconscious effect that litigation may have on a witness's memory.
April 2018 to September 2018: Mr Swallow receives epidural injections to manage the pain
On 13 April 2018, Mr Swallow underwent a guided left subacromial bursa injection.[47]
[47] Exhibit 8.
On 16 April 2018, Mr Swallow underwent a CT guided left S1 nerve root sleeve injection.[48]
[48] Exhibit 9.
Mr Swallow found that the injection helped, although he found that the injection in his shoulder helped him more than the injection in his back. Over time the pain in his back returned and became worse than it was originally.[49]
[49] ts 32.
On 17 October 2018, Dr Stephen Davis performed another MRI on Mr Swallow's lumbar spine.[50] Dr Davis prepared a report on 18 October 2018 which recorded:
(a)the 'clinical details' as: some improvement after NRSI. Recent pain worsening;
(b)a finding that at L5/S1 there was persistent moderate disc degeneration and a left paracentral posterior disc protrusion and early osteophytic spur. It was noted that the disc extended up to 7 mm posterior to the usual disc margin, posteriorly displacing and compressing the traversing left S1 root and there was mild L5/S1 facet arthritis; and
(c)a comment that the left L5/S1 paracentral to posterolateral protrusion is slightly increased in volume, with a degree of S1 impingement, slightly more pronounced.
[50] Exhibit 11.
On 6 September 2018, Mr Swallow underwent a CT guided left L5/S1 epidural injection.[51]
September 2018: Dr Crooke reported on Mr Swallow's condition
[51] Exhibit 10.
On 28 September 2018, Dr Crooke prepared a medical report for the Insurance Commission of Western Australia (ICWA) at their request.[52] In his report Dr Crooke was asked:
[52] Exhibit 46 and Exhibit 47.
(a)about his clinical findings and diagnosis and he said that taking into account the history, the physical examination and clinical tests, his diagnosis was of a 'whiplash' soft tissue injury to the neck. He said that he believed that the rotational forces in the accident injured Mr Crooke's left shoulder and lower back with this latter injury becoming apparent later;
(b)whether he found any inconsistencies between Mr Swallow's objective description and his examination and Dr Crooke said that he did not think there were any inconsistencies. He said that it is possible with these types of injuries for the described symptoms to slowly change and this may be due to the pain in one area masking pain in other areas;
(c)whether the complaints and symptoms were directly caused by the motor vehicle crash and he indicated that he thought they were;
(d)whether Mr Swallow's injuries were an aggravation of pre‑existing injuries or conditions and he said that:
(i)he did not believe that the neck injury was an aggravation of a pre-existing injury because there was no mention in the notes of their earlier consultations of any neck pain; and
(ii)it was very likely that Mr Swallow's back injury was the aggravation of a pre-existing condition. He referred to the MRI of the lumbar spine in February 2016 that showed a minor disc protrusion at L5/S1 and also arthritis in the L5/S1 facet joints. He said that subsequent MRIs after the accident showed a large (7.5 mm) L5/S1 disc protrusion that had progressed;
(e)whether Dr Crooke had certified Mr Swallow as unfit for work and he said that he had. He said that he had given Mr Swallow one month off but that this might need to be extended.
November 2018: Dr Baddour, an orthopaedic surgeon reviews Mr Swallow
On 25 October 2018, Dr Crooke referred Mr Swallow to see Dr Edward Baddour, an orthopaedic surgeon.[53]
[53] Exhibit 12.
On 7 November 2018, Mr Swallow saw Dr Baddour.[54] In a report that Dr Baddour sent to Dr Crooke that day, Dr Baddour recorded:
(a)he had reviewed the imaging that had been performed and the imaging from October had demonstrated quite a large paracentral disc protrusion at the lumbosacral junction with S1 impingement. He said that this had increased in size since the previous study in February 2018;
(b)that given Mr Swallow had been symptomatic for over 12 months, he did not consider that any further conservative treatment was likely to be beneficial in the long‑term; and
(c)Mr Swallow had asked Dr Baddour to seek the approval of the ICWA to surgery which he indicated that he would obtain.
December 2018: Mr Sneddon reviews Mr Swallow
[54] Exhibit 27.
On 20 December 2018, Mr Swallow saw Mr Douglas Sneddon, an orthopaedic surgeon.[55] When Mr Swallow had seen Dr Baddour on 7 November 2018, Dr Baddour had said that he would seek the ICWA's permission for the surgery he had proposed.[56] I infer that the review undertaken by Mr Sneddon was associated with obtaining that approval.
[55] Exhibit 14.
[56] Exhibit 27.
Mr Sneddon prepared a report for the ICWA dated 31 December 2018 which recorded:[57]
[57] Exhibit 14.
(a)that he had diagnosed Mr Swallow as suffering from a prolapse of the L5/S1 intervertebral disc along with L5/S1 facet joint degenerative change;
(b)the complaints and symptoms were directly caused by the motor vehicle crash;
(c)the back pain was an aggravation of Mr Swallow's pre-existing L5/S1 facet joint degenerative change but the extent of the aggravation of the degenerative pain of the L5/S1 facet joints has been relatively minor;
(d)the disc prolapse at the L5/S1 level, was a new injury as a result of the motor vehicle accident that occurred on 9 October 2017 causing his left buttock and thigh pain;
(e)the need for surgery (which was then yet to be performed by Dr Baddour) was solely attributable to the motor vehicle crash as:
(i)MRI scan on 23 February 2016 showed no evidence of a disc prolapse at the LS/S1 level, and the pathology at the LS/S l disc at that time consisted of nothing more than a disc bulge with no evidence of nerve root compression particularly in relation to the S1 nerve root;
(ii)an MRI scan of the same region on 20 February 2018 following the onset of symptoms referrable to the S1 nerve root (pins and needles and thigh pain) revealed a disc prolapse impinging upon and posteriorly displacing the left S1 nerve root; and
(iii)a later repeat MRI on 16 October 2018, of the same region showed a slight increase in size of the prolapsed S1 disc;
(f)Mr Swallow required assistance with having his lawns mowed;
(g)Mr Swallow was unfit for his pre-accident work as a personal trainer and Mr Sneddon did not recommend a graduated return to work program until after the surgery; and
(h)Mr Swallow's prognosis was guarded. Mr Sneddon said that while he thought that the proposed postsurgical intervention might relieve Mr Swallow of his buttock and thigh pain and neurological thigh symptoms, Mr Sneddon did not believe that his back pain would be significantly improved by the proposed surgical intervention.
Mr Sneddon's report was tendered pursuant to s 79C of the Evidence Act 1906 (WA) as he had passed away prior to the trial.[58]
January and February 2019: Dr Baddour performs a microdiscectomy
[58] ts 42.
On 21 January 2019, Mr Swallow saw Dr Baddour again.[59] In a letter that he sent to Dr Crooke that day, Dr Baddour recorded that the necessary approval for the surgery had been obtained and Mr Swallow had elected to have the surgery.
[59] Exhibit 28.
On 7 February 2019, Dr Baddour performed a L5/S1 microdiscectomy on Mr Swallow.[60]
[60] Exhibit 15.
After surgery Mr Swallow's sciatica went away but he continued to experience back pain.[61]
February 2019 to June 2020: Dr Baddour sees Mr Swallow post‑operatively
[61] ts 138.
On 20 February 2019, Mr Swallow saw Dr Baddour again. Dr Baddour said that Mr Swallow should avoid returning to work as a personal trainer for at least a further four weeks. He said that he might be able to return to work after then in a progressive fashion.[62]
[62] Exhibit 29.
After the operation Mr Swallow's sciatica was reduced dramatically but he still had some back pain. The back pain worsened over time.[63]
[63] ts 50.
On 22 May 2019, Mr Swallow saw Dr Baddour again. When Dr Baddour examined Mr Swallow, he found Mr Swallow was most provocative with extension and rotation to the left‑hand side and he thought that he had some inflammation of the left L5/S1 facet joint. Dr Baddour gave Mr Swallow a form to have a steroid injection and suggested that Mr Swallow come back to see him in two to three months.[64]
[64] Exhibit 30.
Mr Swallow had the injection but he felt it made his back worse.[65]
[65] ts 51 - ts 52.
On 3 July 2019, Mr Swallow saw Dr Baddour again. Dr Baddour said that the steroid injection did not seem to have worked much at all. He said that Mr Swallow was still managing to physically train multiple times a week, although he was experiencing back pain. Dr Baddour told Mr Swallow to continue with his physical treatment and see him again in a few months.[66]
[66] Exhibit 31.
On 29 October 2019, Dr Rodney Butler performed an ultrasound on Mr Swallow's left shoulder. This showed no evidence of rotator cuff pathology and mild subacromial-subdeltoid bursitis.[67]
[67] Exhibit 16.
On 4 December 2019, Mr Swallow saw Dr Baddour again. Dr Baddour said that Mr Swallow was still complaining of back pain that was having a lot of impact on his ability to function. Dr Baddour said that the pain was located at the level of the incision and a few centimetres to the left‑hand side. He expressed the view that the antidepressants that Mr Swallow was taking were advisable but that Mr Swallow should be weaned off Lyrica as he did not have any ongoing neurological pain.[68]
[68] Exhibit 32.
On 19 December 2019, Dr Stephen Davis performed another MRI on Mr Swallow's lumbar spine.[69] Dr Davies prepared a report that recorded:
(a)moderate degenerative disc disease with disc narrowing;
(b)a left laminotomy and discectomy had resolved the prior disc protrusion;
(c)there was a band-like post-operative epidural enhancement surrounding the origin of the left S1 root in the laminectomy bed, extending to the posterolateral left disc; and
(d)the root is distorted and mildly dilated but there was no recurrent disc fragment or root compression.
[69] Exhibit 17.
Dr Davies concluded that there was no recurrent disc protrusion, there was epidural scarring surrounding the left S1 root which was distorted but not compressed and there was mild to moderate right L5/S1 facet arthritis.
On 29 June 2020, Mr Swallow saw Dr Baddour again. Dr Baddour said that:[70]
(a)Mr Swallow came to see him about the MRI that had been performed the previous December;
(b)the MRI scan demonstrated degeneration at the L5/S1 disc and no recurrent protrusion. He said that there was some epidural scarring which is a fairly common finding after disc protrusions, injections or surgery. He said that in most cases epidural scarring is not symptomatic but it can be in around 10% of cases;
(c)Mr Swallow's imaging did not really demonstrate any neural impingement to account for the left hip and buttock pain that Mr Swallow was reporting. He said that it could represent referred discogenic pain or possibly a local hip condition such as bursitis.
May 2021: Dr Deacon reported on Mr Swallow's condition
[70] Exhibit 33.
On 9 May 2021, Dr Andrew Deacon prepared a report at the request of Mr Swallow's solicitors. In that report Dr Deacon indicated that: [71]
(a)Mr Swallow continued to suffer from lumbar back pain which was present all of the time but varied in intensity. Since the operation the pain down his leg had settled but he had pain to the left of his lumbar spine and on occasions his buttocks became numb;
(b)Mr Swallow was unable to do gardening, hang out the washing and bend over a work surface. He was unable to play with his child or effectively work as a personal trainer;
(c)Mr Swallow requires further physiotherapy and exercise physiology input to address his muscle strength and imbalance. He said he required psychological and probably psychiatric input to address the anxiety created by the prolonged duration of his pain, the loss of his employment and the limitations imposed on him by the premature loss of his health. He observed that he was particularly distressed by his inability to play freely with his six‑year‑old son;
(d)Mr Swallow required assistance with gardening and routine DIY maintenance to his house;
(e)due to his back pain Mr Swallow would be unlikely to be able to return to work in the foreseeable future. He said he would indefinitely be restricted from any occupation that involved heavy lifting, sitting for long periods and driving over uneven surfaces. He said he did not think that Mr Swallow would be able to compete in the open workforce given his restrictions; and
(f)the loss of self-esteem associated with his physical limitations, loss of job and the prolonged period of ongoing chronic pain, had caused severe psychological harm to Mr Swallow. He thought that the lumbar back pain would continue and improving Mr Swallow's ability to manage the pain was all that could be hoped for.
September 2021: Dr Liddell a neurosurgeon reviewed Mr Swallow
[71] Exhibit 35.
On 2 September 2021, Mr Swallow was reviewed by Dr John Liddell, a neurosurgeon at the requestion of Mr Swallow's solicitors.[72] Dr Liddell prepared a report that day indicating that Mr Swallow had told him that:
(a)his main pain was situated just to the left of the midline in the lumbosacral region - in the form of a constant ache, associated with intermittent 'cold sharp pains' especially in the winter;
(b)his pain was frequently a 5 to a 6 or 7/10 and on a bad day it could become an 8 to 9 or 10/10. He said that he continued to experience pain radiating into his left buttock along with some paraesthesia and numbness in a similar distribution. However, he said he no longer had any significant leg pain and had no paraesthesia or numbness in his leg beyond his buttock, although his left leg 'felt weak';
(c)he experienced difficulty urinating and difficulty sustaining an erection and had difficulty having sex because of his low back discomfort and all the medications that he took for his back;
(d)he continued to experience left-sided neck/shoulder discomfort which he described as being 25% - 30% as bad as his low back pain. He said that the pain in that region radiated from just behind his left ear through his trapezius to the front top of his left shoulder. He also said that his neck was 'very stiff and tight' but he had no arm pain;
(e)he was taking tramadol, Lyrica and Valium; and
(f)he used a mobility scooter, that his partner did all of the cooking and cleaning and he had to pay for a gardener.
[72] Exhibits 42 and 43.
Dr Liddell examined Mr Swallow and found that his cervical spine movements were severely and diffusely restricted to approximately 70% of normal and he had a moderate degree of diffuse tenderness on the back of his neck on the left. He also had some limitations in relation to straight leg raising.
Dr Liddell expressed the opinion that:
(a)Mr Swallow most likely sustained soft tissue injuries to the cervical and lumbosacral regions of his spine, along perhaps, with an injury to his left shoulder, and a significant psychological injury, as a consequence of the motor vehicle accident that occurred on 9 October 2019;
(b)surgery performed by Dr Baddour relieved most of Mr Swallow's left lower limb discomfort but he continues to experience ongoing 'incapacitating' lower back and to a lesser extent, left buttock discomfort. He said that the precise aetiology of that discomfort was unclear but it most likely related to his L5/S1 disc or surrounding structures;
(c)Mr Swallow might benefit from an inter-body fusion procedure at L5/S1 but Dr Liddell would be reluctant to suggest further surgery;
(d)the injury that Mr Swallow suffered on 9 October 2017 was a material contributing factor to the symptoms and deficits that he was suffering from;
(e)Mr Swallow was at some risk of developing further degenerative changes;
(f)Mr Swallow would most likely require personal and/ or domestic assistance and assistance from a gardener for a few hours every few weeks;
(g)Mr Swallow's condition had affected his capacity to work as a personal trainer. He thought that he might be capable of running his own business in a supervisory capacity, provided that he was able to avoid activities such as prolonged sitting, standing and walking, along with heavy lifting and/or repetitive bending;
(h)Mr Swallow's prognosis was poor; and
(i)Mr Swallow would most likely be left with a degree of permanent impairment as a consequence of the accident. He rated Mr Swallow's permanent impairment as being approximately 20% insofar as his lumbosacral spine was concerned and approximately 15% insofar as his cervical spine was concerned.
November 2021: Dr Deacon's assessment of Mr Swallow's spinal function
On 4 November 2021, Dr Andrew Deacon prepared a letter regarding Mr Swallow's spinal and mental function.[73] In that letter Dr Deacon stated that he considered that there was a moderate functional impact on activities involving both spinal and mental health function. He gave a similar assessment of Mr Swallow to that given in his earlier letter to Mr Swallow's solicitors on 9 May 2021 but added that Mr Swallow goes out infrequently and is not socially active. He also referred to Mr Swallow having an underlying medical condition that made concentration difficult.
April 2022: An MRI is performed on Mr Swallow's back
[73] Exhibit 36
On 29 April 2022, Dr Kit Frazer performed an MRI on Mr Swallow's lumbar spine.[74] In a report dated 2 May 2022, Dr Frazer reported:
(a)at the L5/S1 level a recurrent left posterolateral disc protrusion measuring approximately 8 mm resulting in impingement of the left S1 nerve root; and
(b)the appearance was worse than the previous MRI.
February 2022: Dr Wong, a neurosurgeon reviewed Mr Swallow
[74] Exhibit 20.
On 9 February 2022, Mr Swallow was seen by a consultant neurosurgeon, Dr George Wong, at the request of the ICWA.[75] When Dr Wong examined Mr Swallow, he found no neurological deficit in the upper or lower limbs, mild limitation of the cervical movement and more significant limitation of the lumber spine but no neurological deficit. He found some tenderness at the L5/S1 level.
[75] Exhibit 65.
Dr Wong diagnosed Mr Swallow as suffering from residual mechanical back pain. He noted that the discectomy had helped him with regard to his left sciatic pain. He thought that the back pain which was troubling Mr Swallow significantly was his main concern and was likely permanent.
Dr Wong thought that Mr Swallow's pain meant that he could not perform his duties as a gym instructor on a full-time basis and it would be difficult for him to work as a gym instructor on a part-time basis. He said that Mr Swallow was thinking about running a business after settling his claim, doing semi-sedentary or lighter duties.
Dr Wong said that he thought Mr Swallow would be suitable for semi-sedentary and light duties in running his own business. He said that from a purely physical point of view he can do some semi‑sedentary duties on a part-time basis but he noted that Mr Swallow was very depressed and anxious and stressed because of medico-legal issues and this would not help him work.
Dr Wong said that Mr Swallow cannot garden and could only do some light vacuuming and his partner otherwise does the housework.
Dr Wong thought that Mr Swallow's back pain was still related to the car accident and subsequent disc herniation. He thought that Mr Swallow's prognosis was guarded.
Dr Wong thought that further treatment should consist of exercise and fitness. He said that fusion surgery was theoretically an option but in the presence of medico-legal issues, depression and anxiety, he thought the result would be very guarded. He thought the fusion surgery would cost in the region of $30,000.00 - $40,000.00.
August 2022: Associate Professor Thompson, an occupational and environmental physician reviewed Mr Swallow
On 2 August 2022, Mr Swallow was reviewed by Associate Professor Euan Thompson, an occupational and environmental physician.[76]
[76] Exhibit 62, ts 308.
With regard to Mr Swallow's back, Associate Professor Thompson said that it was possible that Mr Swallow's back could have worsened insidiously between the MRI in February 2016 and the second MRI in February 2018 without trauma. He also said that the possibility that the protrusion was significantly contributed to by the accident could not be excluded.
With regard to Mr Swallow's diagnosis, Associate Professor Thompson said that Mr Swallow seemingly, had a long history of back pain prior to the crash and may have suffered deterioration after the crash.
Associate Professor Thompson observed that one of the treating doctor's reports stated that Mr Swallow had been problem-free prior to the crash. Associate Professor Thompson said that he was not quite sure how to interpret this and acknowledged that perhaps Mr Swallow had improved and said that he was not confident that he had full command of all the facts regarding his prior history. He noted that it would seem that potent opioid analgesia was prescribed for a considerable period prior to the crash, most recently in the December of the preceding year.
Associate Professor Thompson said that in respect of Mr Swallow's residual disability, given the length of time that had elapsed and the persistent symptoms and loss of capacity, he thought it likely that there was a good chance that Mr Swallow's condition would remain similar. He described the capacity that Mr Swallow described himself as having as 'plausible'.
February 2023: Mr Cunningham, orthopaedic surgeon reviews Mr Swallow
On 5 August 2022, Dr Crooke referred Mr Swallow to Mr Greg Cunningham, another orthopaedic surgeon. Dr Crooke explained that Dr Baddour had stopped handling claims involving the ICWA (like Mr Swallow's).[77]
[77] Exhibit 18.
On 8 February 2023, Mr Swallow was reviewed by Mr Cunningham.[78] In a report to Dr Crooke that day, Mr Cunningham recorded that:
(a)Mr Swallow had left sided low back pain referred to his buttock;
(b)he did not think that there was a sensible surgical option to help with his lower back pain symptoms at that point in time;
(c)once Mr Swallow no longer wished to have children, it may be reasonable to consider an L5/S1 anterior lumbar interbody fusion to address the degeneration in the L5/S1 segment;
(d)he did not think that fusion-type procedures would be reliable at treating Mr Swallow's back pain long term; and
(e)Mr Swallow might find it helpful to undertake treatment by a pain specialist.
March 2024: Dr Deacon reports on Mr Swallow's condition again
[78] Exhibit 19.
On 20 March 2024, Dr Deacon prepared a report for Mr Swallow's solicitors.[79] He said that little had seemed to change with the symptoms that Mr Swallow presented with and the only day to day difference appeared to be the intensity of the pain.
13 May 2024: Dr Liddell reports on Mr Swallow's condition
[79] Exhibit 38.
On 13 May 2024 (a week prior to trial), Mr Swallow was reviewed by Dr Liddell again who prepared a report of the same date.[80] Dr Liddell examined Mr Swallow and he found that:
(a)Mr Swallow was able to walk on his toes and his heels but was unable to extend his fingers beyond two-thirds of the way down his shins whilst attempting to touch his toes because of low back discomfort;
(b)Mr Swallow's cervical spine movements were mildly and diffusely restricted - to approximately 80% of normal but he had no specific tenderness in the cervical region of his spine;
(c)the examination of Mr Swallow's cranial nerves was unremarkable as was the remainder of his neurological examination, other than for some numbness in the region of his left great toe; and
(d)Mr Swallow had limitation of straight leg raising to approximately 20° degrees bilaterally.
[80] Exhibit 45.
Dr Liddell noted that after he last saw Mr Swallow he had a further lumbosacral MRI scan on 22 April 2022 and that study revealed evidence of a moderately large recurrent disc extrusion on the left at L5/S1. Dr Liddell expressed concern that Mr Swallow's ongoing left buttock symptoms could be caused by the recurrent disc extrusion that was evident on the lumbar spine MRI that was performed on 29 April 2022. Dr Liddell thought that it would be prudent for Mr Swallow to have an up‑to‑date lumbosacral MRI scan.
Dr Liddell said that he would be reluctant to recommend a fusion procedure for Mr Swallow but could not entirely 'rule out' the possibility of him requiring a re-do lumbar microdiscectomy on the left at L5/S1, at some point in the future.
Dr Liddell said that Mr Swallow appeared to have a well‑established persistent pain syndrome and it would be prudent for him to be assessed, and if need be, treated, in a 'multi‑modality' pain clinic.
Dr Liddell said that he doubted Mr Swallow had much capacity for work.
With regard to household duties, he said that while he would not necessarily place any specific restrictions on Mr Swallow carrying out tasks, it would be perfectly reasonable for him to avoid activities that clearly aggravate his discomfort, including sitting or standing for more than 20 minutes.
Dr Liddell said that Mr Swallow's prognosis was poor. He said that he thought that Mr Swallow would take Tramadol, Lyrica and Valium for a prolonged period.
Dr Liddell was reluctant to support Mr Swallow's desire to have a mobility scooter.
20 May 2024: Mr Swallow's back at trial
Mr Swallow continues to experience pain in his lower back to the left of his spine and in his buttocks. He is constantly in pain but the intensity of the pain varies. Painkillers help but only to some extent.[81]
[81] ts 56 - ts 57.
Whether Mr Swallow's lower back injury was caused by the accident
The principles applicable to the proof of causation
Section 5C(1) of the Civil Liability Act 2002 (WA) provides:
A determination that the fault of a person (the tortfeasor) caused particular harm comprises the following elements -
(a)that the fault was a necessary condition of the occurrence of the harm (factual causation); and
(b)that it is appropriate for the scope of the tortfeasor's liability to extend to the harm so caused (scope of liability).
In Wallace v Kam[82] the High Court explained the separate nature of the enquiries as follows:[83]
The common law of negligence requires determination of causation for the purpose of attributing legal responsibility. Such a determination inevitably involves two questions: a question of historical fact as to how particular harm occurred; and a normative question as to whether legal responsibility for that particular harm occurring in that way should be attributed to a particular person. The distinct nature of those two questions has tended, by and large, to be overlooked in the articulation of the common law. … Statute now requires that the two questions be kept distinct.
[82] Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 (Wallace).
[83] Wallace [11] - [12].
The test of factual causation in s 5C(1)(a) of the Civil Liability Act is to be determined by the but for test: but for the negligent act or omission, would the harm have occurred?[84] It is a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absent the negligence.[85]
[84] Wallace [16]; Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 [45] (judgment of the court); Strong v Woolworths Ltd t/as Big W [2012] HCA 5; (2012) 246 CLR 182 [20] (French CJ, Gummow, Crennan & Bell J); East Metropolitan Health Service v Ellis (by his Next Friend Christopher Graham Ellis) [2020] WASCA 147 (Ellis (CA)) [600]; Veitch v Connor [2023] WADC 38(Veitch) [173].
[85] Veitch [173] Wallace [16].
Section 5D of the Civil Liability Act provides that the plaintiff bears the onus of proving on the balance of probabilities any fact relevant to the issue of causation.
With regard to the proof of factual causation, in East Metropolitan Health Service v Ellis,[86] the Court of Appeal made the following observations:[87]
… it is clear, and there can be no doubt, that mere proof by a plaintiff of the possibility that a defendant's breach caused the plaintiff to suffer harm is insufficient. The court must be satisfied that it is more probable than not that the defendant's breach caused the relevant harm; it is not sufficient to conclude that the breach may have been a cause of the harm ...
At the same time, it is also well-established that causation may be proved by inference. If direct proof is not available, an inference of causation may be drawn if the circumstantial evidence is sufficiently strong and coherent to support a definite inference to that effect. Before such an inference can be drawn, there must be more than two conflicting inferences of equal probability …
[86] Ellis (CA).
[87] Ellis (CA) [263] ‑ [264].
Section 5C(4) of the Civil Liability Act provides that for the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor.
The issue of causation involves a question of fact on which expert opinion evidence may be received.[88]
[88] Ellis (by his Next Friend Christopher Graham Ellis)v East Metropolitan Health Service [2018] WADC 36 [814] and the authorities referred to there.
It is not necessary that a defendant's negligent act or omission be the sole cause of a plaintiff's injury. Causation will be established if the relevant act or omission contributed materially to the damage suffered.[89]
The weight to be attached to the opinions of the different medical experts
[89] Van der Velde v Halloran [2011] WASCA 252 [95]; City of Stirling v Tremeer (2006) 32 WAR 155 [71].
Various medical experts gave evidence about the likely cause of Mr Swallow's back injury. In closing Mr Harmon submitted that Associate Professor Thompson's opinion about the cause of that injury should be given more weight than the opinions expressed by Dr Liddell, Dr Crooke, Mr Sneddon and Dr Wong. He submitted that Dr Crooke lacked impartiality and that part of the factual basis underlying the evidence of the opinions of Dr Liddell, Mr Sneddon and Dr Wong had not been established. In my view, the factual basis underlying Associate Professor Thompson's evidence also required consideration.
It was also necessary to consider whether the experts had sufficiently explained their reasons for reaching the conclusions they did and the implications this had for the weight to be given to their opinions.
Dr Crooke's evidence
Mr Harmon submitted that Dr Crooke's evidence lacked impartiality. He submitted that this was evident from the fact that 'from the very commencement of his evidence' Dr Crooke sought to introduce evidence of him having examined Mr Swallow's back during the first consultation after the crash.[90] I understood Mr Harmon's submission to be that Dr Crooke's partiality was revealed by his decision to volunteer unsolicited evidence about examining Mr Swallow's back.
[90] Defendant's Closing Submissions, par 14.
This submission proceeds on a false premise. Dr Crooke did not volunteer unsolicited evidence. The evidence that Dr Crooke gave was in response to a question from Mr Swallow's counsel. Counsel asked Dr Crooke what he meant in his letter dated 28 September 2018 when he said that on 20 February 2018, he had examined Mr Swallow's back 'again'. In response, Dr Crooke said that he would speculate that he must have examined Mr Swallow's back previously. When it was explained to Dr Crooke that he should not speculate, he apologised and said that he did not recall what he meant.[91]
[91] ts 219.
It is true that Dr Crooke initially answered counsel's question by speculating but it was not evident to me that it had previously been explained to him that he should not speculate. It is common for witnesses to speculate when they do not recall the answers to questions. I did not regard Dr Crooke's initial attempt at speculation as revealing anything other than that he did not appreciate that he should avoid speculation when answering questions in court.
Mr Harmon further submitted that evidence that Dr Crooke gave that he blamed himself for not properly diagnosing Mr Swallow's injury revealed partiality.[92] Mr Harmon's submissions did not explain why this suggested partiality. It does not seem to me that it does.
[92] Defendant's Closing Submissions, par 14; ts 231.
Mr Harmon also suggested that Dr Crooke seemed keen to address, or defend, any suggestion that Mr Swallow engaged in drug‑seeking behaviour when that was not something that was asked of him.[93]
[93] Defendant's Closing Submissions, par 15.
While it is true that it was not directly put to Dr Crooke that Mr Swallow had engaged in drug-seeking behaviour, the questions that were asked could easily have been understood as implying this. For example, Dr Crooke was asked about whether or not another doctor had refused to prescribe Mr Swallow benzodiazepine and whether Dr Crooke had a long discussion with Mr Swallow about Valium dependency.[94] Given the questions asked, I do not consider that Dr Crooke's answers suggested he was partisan.
[94] ts 240 - ts 241.
Generally, my assessment of Dr Crooke was that he was conscientiously attempting to assist the court by answering the question he was asked to the best of his ability. While I am mindful that as Mr Swallow's treating general practitioner Dr Crooke might lack the objectivity of a medical practitioner who had no established relationship with Mr Swallow, I did not gain the impression that he was partisan, or incapable of expressing an opinion to which weight might be attached.
With regard to whether Dr Crooke explained his reasoning, in his report dated 28 September 2018 Dr Crooke expressed the opinion that Mr Swallow's back injury was caused by the accident without explaining why.[95] In the same report, however, he expressed the opinion that the progression of Mr Swallow's disc protrusion between the MRIs performed in February 2016 and February 2018 revealed that Mr Swallow's back injury was an aggravation of a pre-existing condition.[96]
[95] Exhibit 47, answer to question 4.
[96] Exhibit 47, answer to question 5.
It seems to me that Dr Crooke's explanation of why he thought that Mr Swallow's back injury had progressed and was an aggravation of a pre-existing condition exposes the reasoning underlying his conclusion that Mr Swallow's back was caused by the accident. His conclusion was based on the fact that Mr Swallow had a pre‑existing injury and that injury had been revealed by the MRI performed after the accident to have progressed. I consider that this explanation is sufficient for me to understand the reasoning process underlying Dr Crooke's opinion.
Dr Liddell's evidence
Mr Harmon submitted that Dr Liddell's opinion was based on an assumption that Mr Swallow started taking Lyrica and Tramadol in the early stages of the injury.[97] He said that this was an erroneous assumption that affected the weight to be attached to his evidence and he referred to Pollock v Wellington.[98] I understood Mr Harmon's reference to Pollock to be a reference to the 'basis rule' that requires the facts underlying an expert medical opinion to be proved by admissible evidence.
[97] Defendant's Closing Submissions, par 12; ts 256 - ts 258.
[98] Pollock v Wellington (1996) 15 WAR 1 (Pollock).
Mr Harmon submitted that Mr Swallow was prescribed Tramadol but not Lyrica in the early stages of the injury. He pointed to Dr Crooke's notes that suggested this and answers that Dr Crooke gave during cross-examination that confirmed it.[99]
[99] ts 202.
The assumptions upon which a doctor's opinion is based do not need to correspond with complete precision with the facts proven at trial but the assumptions proven at trial must be sufficiently like the assumptions in the opinion to render the opinion of value.[100]
[100] Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 62 ALR 85; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 [66] (Heydon JA); Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 [64].
While I accept that Mr Swallow may not have been prescribed Lyrica in the early stages of the injury (and find accordingly), I consider that the assumptions upon which Dr Liddell's opinion were based were sufficiently like the facts proven at trial to render his opinion of value.
That Mr Swallow was prescribed Lyrica in the early stages of the injury was only one of a number of facts upon which Dr Liddell's opinion was based. Dr Liddell's report and his oral evidence did not suggest that his conclusions rested significantly on the fact that Mr Swallow had been taking Lyrica at this time.
Mr Harmon referred to answers that Dr Liddell gave in cross‑examination where he was asked whether it would have made a difference to his opinion if Mr Swallow did not take Lyrica until after the surgery and he said that it would put a 'slightly' different perspective on things.[101] While it is true that Dr Liddell made this comment, it is significant that he described the difference that might have been made as slight and he did not say that his opinion would have been different if he had known this fact.
[101] ts 202, ts 205.
Further, Mr Harmon submitted that an answer that Dr Liddell gave in cross-examination conceded that the size of the protrusion likely increased closer to February 2018, when Mr Swallow started complaining of more significant back pain. Mr Harmon submitted that this was 'in circumstances where the explanation for the use of the word 'again' in the report was plain from the report'.[102]
[102] Defendant's Closing Submissions, par 13.
As Mr Harmon's submissions did not identify the report referred to, I had difficulty following this submission. This may have been a reference to a comment made by Dr Crooke when he gave evidence about his report dated 28 September 2018 that I have already discussed.[103] If so, it was not apparent to me how this was relevant to the assessment of Dr Liddell's evidence.
[103] ts 218; Exhibit 47.
The answer that Dr Liddell gave under cross-examination that Mr Harmon relies upon was based upon an assumption (that Dr Liddell was asked to make) that Mr Swallow did not start complaining of back pain until February 2018.[104] That assumption has not been established by the findings that I have made. While it is true that Mr Swallow did not see a doctor until February 2018, when he first complained about back pain was not established by the evidence.
[104] ts 207.
More significantly, implicit in the suggestion that Mr Swallow did not complain of back pain until February 2018, is the suggestion that he did not have any back pain prior to that date. I have found that Mr Swallow started experiencing back pain in November 2017.
Given this, I do not consider that Dr Liddell's answer has any relevant probative value and I do not consider that it involved any relevant concession.
The answers that Dr Liddell gave under cross-examination were useful in another respect, however. They revealed that the difference between the MRIs of Mr Swallow's back performed in February 2016 and February 2018 and the timing of Mr Swallow's first reports of back pain, were material to his conclusion that Mr Swallow most likely sustained a back injury as a result of the accident. Dr Liddell's answers under cross-examination revealed a reasoning process similar to that adopted by Dr Crooke. This was significant because Dr Liddell's evidence otherwise failed to explain his reasons for concluding that the accident caused Mr Swallow's back injury.
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