| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : TRAN -v- CLAYDON [2003] WADC 19 CORAM : HH JACKSON DCJ HEARD : 5-7 MARCH, 7 AUGUST,
19 & 20 SEPTEMBER 2002 DELIVERED : 3 FEBRUARY 2003 FILE NO/S : CIV 2183 of 2000 BETWEEN : NGOC LAM TRAN Plaintiff
AND
NIGEL CLAYDON
Defendant
Catchwords: Motor vehicle accident - Assessment of damages
Legislation: Motor Vehicle (Third Party Insurance) Act 1943
Result: Damages assessed in the sum of $38,918.94
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Representation:
Counsel:
Plaintiff : Mr I L K Marshall
Defendant : Mr J P T Olivier
Solicitors:
Plaintiff : S C Nigam & Co
Defendant : Talbot & Olivier
Case(s) referred to in judgment(s):
Hendrie v Rusli [2000] WASCA 249
Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192
Maiwood v Doyle [1983] WAR 210
Nyssen v Foy [2000] WADC 210
St George Club Ltd v Hines (1961-62) 35 ALJR 106
Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997
Case(s) also cited:
Nil
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1 HH JACKSON DCJ: The plaintiff who was born in 1964, was injured in a motor vehicle collision on 14 April 1999. His then employer's Hyundai panel van was struck by a Mercedes sedan driven by the defendant which turned across his path of travel. The defendant admits liability. The plaintiff seeks damages and the matter came before me for assessment. The hearing was extended over some six months because of over-optimistic listing of trial dates and the consequent unavailability of medical witnesses.
2 The plaintiff's statement of claim alleges he suffered injuries as a result of the collision comprising "(a) soft tissue injury to the neck, (b) soft tissue injury to the back; and (c) nervous shock." It lists a long list of residual disabilities and claims various consequential losses. I note that the statement of claim does not particularise any sacroiliac injury nor loss of memory or concentration. The claim for economic loss is for total loss from the time of the collision, when he was a 35-year-old courier driver, to age 65. 3 The plaintiff has lived in Australia since 1981 when he was 17 and after some studies worked as a laboratory assistant, radiographer's assistant and then courier driver. In the work as a courier he had to carry objects of some modest weight or bulk into and from delivery points. He is married with three children, all of whom live at home with their parents. 4 After the collision the vehicle driven by the plaintiff was towed away. He went back to his office by taxi shaking and frightened but without pain. The next day he was not in pain but saw a doctor, Dr Cheung, for a check-up after a friend advised that he do so. 5 During that week he started, he said, to have dizziness, headaches, a sore neck and pain to the left shoulder blade. He was referred for x-ray and physiotherapy and given painkillers However it seems he also returned to work for two weeks after the collision. 6 Ms Glynnis Steed, the physiotherapist introduced hydrotherapy. The plaintiff says his symptoms became worse but that Dr Cheung seemed not to understand the position and said nothing more could be done. After being certified unfit for work for one week on 30 April by Dr Cheung, the plaintiff on the same day then consulted another general practitioner Dr Tan who arranged a CT scan. He was suffering pain in the low back and down the left leg. This came on about two weeks after the collision and is ongoing. He continued with physiotherapy until November 1999. Hydrotherapy assisted but the plaintiff ceased the activity for financial
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reasons. About a month after the collision the plaintiff says he attempted to return to work again but after one or two hours was unable to continue. He was then in receipt of workers' compensation payments for about a year until 23 May 2000 until those were stopped and thereafter a disability pension. 7 He described the ongoing low back pain as a long sharp pain constantly going from his low back down to his coccyx, buttocks, and left thigh to his foot which is sometimes numb and tingling. He takes four Nurofen by day and two Panadeine Forte at night. However sleep remains a problem. In May 1999 Dr Tan referred the plaintiff to Mr J G Hayes, a consultant rheumatologist. After x-rays and a CT scan, the plaintiff underwent an MRI scan in July 1999. 8 Dr M Kent and Dr Ulreich gave him injections which produced very short term relief in the low back, say for three or four days. 9 He underwent a bone scan in September and in October 1999 and April 2000consulted Mr R S Goodheart, consultant neurologist. 10 In November 2000 the plaintiff consulted Mr Eamonn McCloskey, orthopaedic surgeon/spinal surgeon on the referral of Dr Tan and in January 2001 Mr M J McCallum, orthopaedic surgeon who referred him for a sacroiliac joint block, which gave him significant pain relief for a short period of time, and referred the plaintiff to Sean Elliott for physiotherapy treatment. 11 In May 2001 the plaintiff underwent an MRI of the lumbosacral spine. In July 2001 he consulted Professor A C Harper, occupational physician and again consulted Mr McCallum. In October 2001 he consulted Dr Frederick K F Ng, consultant psychiatrist. In November 2001 he underwent a further sacroiliac joint block performed by Mr McCallum, which gave him significant pain relief for a few weeks mainly in the groin area but not the lower back. 12 In February 2002 he was reviewed by Professor Harper and by Dr Goodheart. 13 In the mornings he feels heavy and stiff but improves during the day. The neck and shoulder blades are still stiff and sore but "much better than before". However he has restricted movement on looking up. He uses Voltaren gel on his neck and shoulder blades and Zostrix for his low back, thigh and leg.
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14 He said use of Voltaren and Zostrix gel on the neck and shoulders produced relief but only for about 30 minutes.
15 Prior to the collision, he said, he was in good health with no such problems. He played team soccer, social tennis and other sports. He married in 1987 and had three children before the collision. He helped both with the children and with domestic chores but could be of little help now. He said he walks his daughter to school and does cooking but only very limited sweeping, cleaning or vacuuming and no mopping. His wife, a Chilean immigrant, works full time but as a casual making curtains. The plaintiff has been in receipt of a disability pension since 23 June 2000. They have a car which he sometimes drives but he cannot drive long distances or a manual car. 16 He said he had intended to work indefinitely and wanted to do so. He described himself as concentrating on rehabilitation and becoming fit again. However he feels weak from the waist down and especially in the left leg. His left foot is sometimes numb and he has pins and needles in his leg. Walking is very weak. The pain in his low back goes to both legs but the left is worst. There is intermittent pain in the left shoulder blade. 17 He can only sit still for about 30 minutes and only stand for a little more. He cannot climb ladders and can climb steps or walk on uneven surfaces only with difficulty. He cannot handle heavy objects, clean gutters or change light globes. Such tasks are left to his teenage sons. He becomes angry and frustrated, which he was not prior to the collision. 18 He agreed that he can move his head down and to left and right albeit slowly but looking upwards causes stiffness and soreness. He can walk on flat ground but his leg feels weak and heavy on walking up and down stairs. 19 He agreed that since the collision he has not attempted to obtain work in other areas such as welding, health and leisure or personal development in which he had done courses as a young man, although he said he had tried to find employment in making contact lenses, a job in which he had worked previously. He agreed in re-examination that he would love to try doing that work if it was available but that it was not. Nor has he tried to play any kind of sport at all. Cross-examined he said that he practises at his computer for about 30 minutes daily and cooks the evening meal most nights but spends many hours reading. He agreed that he drives to social, medical and legal appointments when his wife is working but only on limited occasions when she is not. On 20 December
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1999 the plaintiff was filmed secretly in a number of locations: Exhibit 12. The videotape was played during cross-examination. The plaintiff agreed that he was the subject. He said that during the last three months of 1999 he was having physiotherapy and hydrotherapy and taking medications prescribed by Dr Cheung. He agreed the film showed him driving his car, assisting others by providing water for a car radiator, walking up steps and diving headfirst down a commercial waterslide and then jumping on one leg as if to clear water from his ear. He said that at that time he felt better and wished to see how he coped. He felt no further improvement and did not repeat this. He also said that he needs to support his back after sitting and did so in the videotape. The videotape shows the plaintiff moving quite freely, get into and drive his car, then later lean freely over an open car engine, pull a garden hose, get into another vehicle and drive away, close a vehicle boot, and later at a swimming complex move easily looking in various directions, move about in the pool, walk freely, climb stairs without apparent concern, dive head and arms first into a waterslide emerging freely at the other end, stand up and walk freely then again freely climb stairs, later again moving freely in the pool immersing his head with a quick backwards motion and later jump on one leg and then on both and again on one as if freeing water from an ear, walk and sit freely, turn his head sharply and freely to both sides, and twist his torso. Finally he gathers together his family and possessions, freely twisting, bending and lifting light objects and leaves carrying a towel, flippers and an overarm bag, opening the car boot, getting in freely and driving off. He is then shown at a bank ATM from which he walks freely away, gets into his car and drives off and later again getting into his car and driving off. 20 All this occupies, in total, some hours on one day and is in sharp contrast with his demeanour and movement in court. 21 Mrs P A Tran, the plaintiff's wife, gave evidence confirming some of that given by her husband as to his pre-collision good health and easy demeanour and their sharing then of household duties and contrasting that with the present situation. He is not now able to assist much domestically and is irritable and has difficulty sleeping. They do not now socialise much and their physical relationship has deteriorated. The two teenage sons help with chores and gardening.
Medical evidence 22 A number of radiological reports were tendered by consent as Exhibits 1, 3, 4, 6 and 8 as were the reports of Dr A Y K Cheung, general
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practitioner, dated 27 May 1999, Exhibit 2, Dr M Kent, pain management specialist, dated 20 July 1999, Exhibit 5 and Mr E McCloskey, orthopaedic surgeon, dated 24 November 2000 and 21 March 2001, Exhibit 7. 23 Dr M K Tan, general practitioner, saw the plaintiff first on 30 April 1999. His report of 14 June 1999 is Exhibit 15. The plaintiff complained of headaches, neck pain especially on the left, pain in the left shoulder and upper and mid-thoracic spine, and pain in the lumbar spine and down the left leg. Dr Tan prescribed anti-inflammatories and physiotherapy. When seen on 8 June 1999 the "neck and headaches had improved with physiotherapy. However there had been no improvement in his lumbar pain and pain going down the left leg." Since that time Dr Tan had seen the plaintiff about once per month until trial in March 2002. He prescribed simple analgesics in addition to which he believed the plaintiff performed exercises learned from the physiotherapist. The problems are in the low back and leg. There has not been much further complaint about the neck or headaches. In October 2001 Dr Tan referred the plaintiff to the psychiatrist Mr Ng because the plaintiff was becoming very depressed. He was tearful in the surgery. 24 Mr S Narula, neurosurgeon, was called by the plaintiff. He saw the plaintiff on 10 September 1999 and a number of times thereafter. His reports are Exhibits 18A-E. On first examination the plaintiff was tender in most of the neck and on both sides of the cervical spine with restricted movements especially in flexion. He also had quite deep central low back pain radiating down the entire left leg which was both episodic and variable and with numbness and decreased flexion. There were no nerve tension signs and he was neurologically intact but scans showed a focal central L5/S1 protrusion which fitted his neurological complaint and a mild touching of the disc on the nerve but without pressure. Mr Narula recommended conservative low back treatment with a walking program, pain-killing and anti-inflammatory medications and reassessment of physiotherapy. The cervical spine needed further investigation. His initial prognosis was that the plaintiff was unlikely to return to driving or physical manual labour but that the symptoms would eventually stabilise and he would be able to return to the work force. However it was possible that the symptoms would deteriorate and a small possibility of future surgery. 25 On 16 November the plaintiff informed Mr Narula that sacroiliac injection had given relief for three to six weeks. Mr Narula did not think the problem was sacroiliac in origin but came from the L5/S1 area. The
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then symptoms were predominantly in the left leg. On 21 March 2000 the plaintiff reported intermittent symptoms but these had been quite severe for three months. Three sessions of epidural and facet joint injections had not been of help. 26 In August 2000 the plaintiff reported improvement but still dull low back ache and left leg symptoms with difficulty in walking and sitting for lengthy periods, interrupted sleep and pain now radiating to the left hip and left low buttock. Mr Narula reported: "On examination his current findings are a virtually normal gait with an occasional limp favouring the left lower limb. He is unable to sit through the course of the ½ hour interview. His lumbar spine shows normal curvature with absence of spasm. He remains tender in the lumbosacral area in the midline. There is also tenderness in paramedian region as well as over the pyriformis area. His spinal flexion is limited although improved compared to before. His SLR is virtually 60º on either side with equivocal Sicard's on the right side. He is able to sit up to almost 90º and is able to almost reach, with the outstretched arms, up to the middle of the legs. Neurologically he appears intact. Given the above, the nature of injury and the follow-up, although I am sure he can drive to a reasonable degree I do not think he has the capacity to undertake full time duties, that of a courier in his unrestricted pre-injury duties driving commercial vehicles. I am of the opinion that alternate work should be possible." 27 On 15 May 2001 Mr Narula reported: "Mr Tran is coming along slowly but surely. He has been looking for work. He has undertaken a course to work as an administrative assistant. I have encouraged him to keep walking and undertaking the exercise programme. For the present moment conservative approach would be best and helpful guidance for him to obtain a job at least on a part time basis would be encouraged." 28 The work, he said in evidence, could be such as not to require prolonged sitting or standing in one place. At trial Mr Narula said he was now of opinion that the plaintiff was suffering a sacroiliac injury as well as that at L5/S1 based on the increased sacroiliac bone scan uptake, the
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temporary relief from injections and blood test results. However, he said, he was not expert in that. 29 The cervical and thoracic problems were improved. However the plaintiff would need analgesics and anti-inflammatories for a long time. 30 As to the question whether it was significant that low back symptoms did not appear for two weeks after the collision, Mr Narula described this as "not too uncommon; a little bit atypical … not the classical … not unheard of." The collision, he said, had possibly rendered the L5/S1 disc protrusion symptomatic but may have caused it. Symptoms over time might vary but healing is slow and he strongly discouraged manual labour. There was no doubt pain from the L5/S1 area and possibly also sacroiliac pain. There was no nerve impingement and surgery was not called for. He was still of the view that the plaintiff could do non-manual labour. People with back problems could have variable gait. The plaintiff had virtually normal gait although occasionally be favoured the left leg. 31 Ms Glynnis Steed, physiotherapist, treated the plaintiff between 30 April 1999 and November 1999 for neck pain going down the left arm and low back pain on the left side and left leg and headaches. 32 In November 1999 the plaintiff was suffering severe leg and back pain but the thoracic and neck pain had improved slowly. Her view then was that he was keen to return to work and would cope if he did so. 33 Mr M J McCallum, orthopaedic surgeon, was called by the plaintiff and gave evidence on 6 March 2002 and again on 7 August 2002. He first saw the plaintiff on 10 January 2001 and thereafter on a substantial number of occasions. His reports are Exhibits 16A-L. A group of diagrams were tendered as Exhibits 17A-D. His firm conclusion from the beginning was that "no doubt" the plaintiff has "problems with both sacroiliac joints where he demonstrates instability" but that most of the pain came from the L5/S1 spinal segment. He gave a detailed explanation in evidence of his understanding of how this came about from the accident. His report of 20 July 2001 added: "I saw Ngoc Lam Tran on 11th January, 2001 when I found, at that time, that he had a vertical plane malalignment of his left sacro-iliac joint with a positive left active straight leg raise test. He also had pain over the left C5/6 and C6/7 facet joint levels. He was acutely tender in his right epigastrium and right sub-costal region which I think was simply due to his worry.
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He also had problems with his bladder, including frequency, urgency, nocturia and terminal dribbling. He also had urgency of defaecation as well as micturition. I referred him for a sacro-iliac joint block which gave him significant pain relief for a short time, confirming my diagnosis, … I then referred him on to Sean Elliott, physiotherapist, … He did improve with his initial treatment by Sean Elliott but I think he must have plateaud … Present Complaints 1. He feels weak and has pain in his left groin, left buttock and the 'whole of his left leg'. His left leg can give way under him, especially when going upstairs. 2. He complains of loss of libido and problems in the more mechanical aspects of intercourse. 3. He tells me that he can walk for about ten minutes by which time he has a throbbing pain, mainly in the distal sacral area but also in his left buttock, left lateral thigh, lateral calf and into the heel, sometimes going into the foot. He gets a numbness in the sole of his foot. 4. His sleep pattern is grossly disturbed, going to bed at about 10.00 p.m., maybe getting to sleep by about mid-night and waking every one to two hours through the night. He wakes still tired in the morning. He has left the matrimonial bed because the continuous moving around and shifting disturbs his wife. 5. He also complains of sharp pain at the coccyx level. 6. He also gets some pain at the sacral level which radiates into the left groin and lateral buttock area, this is a burning pain. Systematic Enquiry Systematic enquiry reveals still marked frequency of micturition, he has urgency, terminal dribbling and nocturia, getting up at least three times a night. However, he has no stress or urge incontinence at the present time.
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His bowel function seems to have returned to normal. Social & Recreational Activities I asked him how he spent his time and he says he reads and cooks but not very much else. Medication His medication at the present time is Tramal and Nurofen. On Examination On examination Ngoc spent the whole of the interview sitting on his right buttock, taking his weight through his right elbow. When he walks he is very hesitant about putting weight on his left leg. On forward flexion he is grossly limited and tends to deviate to the left, trying to get his weight over his left hip. Left and right lateral flexion is markedly limited. He has a positive stork test on the left side and I am fairly certain a positive fixed flexion test although this test is very difficult to do because of his lack of movement. He has an active straight leg raise test on the left which is improved by lifting the opposite shoulder and by pelvic compression. He gets a lot of pain in the left sacro-iliac joint, almost certainly due to synovitis and he has a positive posterior thigh thrust test. He is acutely tender over the left sacro-iliac joint, he is exquisitely tender over the left long dorsal sacro-iliac ligament and, to a lesser extent but still very painful, over the left sacro-iliac tuberous ligament, the right sacro-tuberous ligament is also tender. Assessing pelvic symmetry is difficult. I measure a high left anterior superior iliac spine but I measure his ischial tuberosities as level, however, he also appears to me to have a rotation to the left of his sacrum. In other words, there is some vertical shear deformity in the left sacro-iliac joint and this would explain the exquisite tenderness in the left long dorsal sacro-iliac ligament.
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34 Mr McCallum attributed the plaintiff's functional disability to the collision and thought the plaintiff would require ongoing medications and physiotherapy and that the situation would persist unless the sacroiliac joint could be stabilised with a remote possibility this would require surgery. He was later shown the videotape Exhibit 12. He responded:
"1. There is very little of this video which is relevant to someone with a sacro-iliac joint problem. The only time they are going to display anything worth seeing is when they are walking, either being viewed from the side or from behind, without carrying anything. On assessing leg movements it may then be possible to see the affected side being hitched up and carried forwards as distinct from the normal side which just moves forwards. At one point, just for a very short time towards the end of the video, Mr Tran does this with his left leg.
2. The second interesting thing is that his physiotherapist actually says that both sacro-iliac joints are unstable and this may explain the fact that when Mr Tran is going up the stairs to go down the slide he goes up left leg first. 3. Mr Tran certainly bends forwards without any problems but, there again, we would expect him to do that, his problem is not in his spine and showing flexion extension is irrelevant to his problem."
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35 On 14 November 2001 Mr McCallum injected the plaintiff with prolotherapy solution. Later Mr McCallum reported:
"I find this man hyper-reactive to examination and I do not think he does his exercises as well as he should. His affect is somewhat depressed and I feel that his prognosis is very guarded." 36 In January 2002 Mr McCallum reported that following the injection, as he had anticipated, the plaintiff had less pain in the area concerned. 37 Giving evidence on 3 March he described the bowel and bladder and some sexual problems as commonly associated with sacroiliac injury. 38 The onset of symptoms develops subsequent to the trauma. There would be very great problems in his returning to courier driving work if he were asked to carry heavy loads. However Mr McCallum thought the plaintiff likely to return to work in future, perhaps within six months. The plaintiff was becoming more motivated and diligent in his physiotherapy exercises. 39 With treatment the plaintiff had dramatically improved, and would continue to do so. He hoped the requirement for medications would diminish and estimated a further six months use. Physiotherapy was essential, in combination with prolotherapy injections. The leg pain was not related to the L5/S1 problem. Mr McCallum accepted that in these opinions he differed from most neurosurgeons. He accepted that his opinions were definitely controversial and at present those of a minority of his colleagues but said that evidence and support was growing internationally as well as in Australia. 40 Cross-examined he did not agree that very significant trauma need have been involved or that immediately symptoms would be apparent because the problem is one of gradually developing instability and gradual development of muscle weakness. 41 He accepted also that he could not establish his case by CT, MRI or ultrasound methods. He placed some weight on visible signs of gait and the like and on the improvement shown by adoption of his prolotherapy and physiotherapy methods. Some of the plaintiff's pain however comes from the L5/S1 facet joint problems which was degenerative. 42 Giving evidence when recalled by consent on 7 August 2002 Mr McCallum gave evidence of seeing the plaintiff again on 24 April
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2002 after administering another prolotherapy injection on 28 March. His groin and coccygeal pain was very much reduced and he felt stronger. Mr McCallum referred the plaintiff to Mr K C Ng and saw him again in July when he reported: "I have just seen Ngoc again and, in my opinion, he is improving. He says he can walk for approximately 3 km, he does light exercise, his appetite, bladder and bowels are good and he is now involved in sexual intercourse again without too much trouble. At the present time he is spending most of his time cooking and looking after the kids. He was complaining of his left heel being sore when weight bearing and pain in the left posterior loin area. I think he needs a bit of a G-up to start looking for some work that he can do, but is not perfect yet from the physical point of view but if he waits until he's perfect he will then have to start looking for work and I would strongly suggests he starts looking now." 43 Giving trial evidence he said that although the plaintiff was much improved the prognosis was guarded and he did not think there would be total recovery. Further prolotherapy and physiotherapy might be required. Cross-examined he agreed there had been overall improvement. He thought the plaintiff would be able to do moderate work within three or four months.
Mr R S Goodheart 44 Mr Goodheart, a consultant neurologist was called by the plaintiff. He saw the plaintiff in September and October 1999, April 2000 and February and September 2002. His reports are Exhibit 22A – D. 45 In October 1999 Mr Goodheart reported:
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pain through the hips and particularly through the left posterior thigh towards the left lateral lower leg. This pain could be severe on occasions. There could be an associated numbness particularly affecting the left lateral lower leg. Mr Tran continued to experience a limitation of movement of the neck with some associated discomfort. Headaches were occurring particularly in the occipital head region but were intermittent. … There was a limitation of neck movement particularly lateral flexion to both sides. The deep tendon reflexes were symmetrical in the upper limbs. I found the knee and ankle reflexes to be symmetrical with flexor plantar responses. There was no obvious muscle wasting in the legs and no fasciculations were seen. The formal testing of muscle power was limited somewhat by pain. For example, there was give-way weakness with dorsiflexion and with plantar flexion of the left foot. He was able to walk on heels and toes, however. There was no consistent sensory loss. Electrophysical studies were performed on the 22nd October, 1999. There was no definite evidence of nerve root irritation in the left lumbosacral region. Upon review on the 22nd October, 1999 Mr Tran told me that he had undergone specific injections directed towards the sacroiliac region and the coccyx. Mr Tran reported good response for a period of two weeks. Further injections were being planned. I have noted the x-ray findings. There is some disc movement at the L5/S1 level but there is no obvious compromise of the emerging left S1 nerve root. … 3. It is my opinion, that Mr Tran is suffering with predominant soft tissue symptoms with respect to the lumbar spine and left leg. I have not found definite electrophysiological nor clinical evidence of nerve root irritation with respect to the lumbar spine. There is no
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obvious involvement of the lumbosacral plexus, nor of the sciatic nerve. Certainly he describes radiation of symptoms from the back and into the left leg. These symptoms are causing considerable hardship. It is my opinion that these symptoms are directly related to the motor vehicle accident of the 14th April, 1999. 4. … I was told that he had not suffered with lumbar pain, back injury or left leg symptoms prior to that date. He does describe an increase in symptoms, particularly with respect to the left leg over a period of weeks following the motor vehicle accident. It is my understanding that Mr Tran was able to work for a period of time (approximately three weeks) following the accident. He has been unable to return to work since that time. I am not aware of any particular exacerbation or aggravation of the original injury in the past twelve months. 5. It is possible that Mr Tran will be able to return to his pre-accident occupation as a Courier Driver. However, it is possible that Mr Tran will be left with significant lower back pain which may preclude such activity. 6. At the time of my review, Mr Tran was partially incapacitated for most work duties. He was unable to perform any significant lifting. He was unable to maintain a sitting or standing posture for more than short periods. 7. … 8. I could see no scope for immediate surgical intervention. I felt that Mr Tran would benefit from further specific injections directed towards the lower back. He would also benefit from continued physical therapy. 9. It is my opinion that Mr Tran will continue to experience lower back and left leg symptoms for the foreseeable future." 46 In April 2000 he reported: "Since my last review on the 22nd October, 1999 Mr Tran had continued to experience lower back pain with radiation of this
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pain into the left leg. Mr Tran had noted increasing discomfort in the left buttock region, however. Mr Tran told me that he could work for a period of ten to fifteen minutes. Thereafter the discomfort in the back and the left leg became too severe to continue. He would have to rest for a period of ten to fifteen minutes before continuing with walking or standing activity. I repeated the neurological examination. I found the cranial nerve and upper limb examination to be normal. On this occasion I felt that the knee reflexes were symmetrical but I found the left ankle jerk to be mildly depressed. This was not associated with any particular wasting nor fasciculation within the lower limb muscles, however. The formal testing of muscle power remained quite difficult due to the patient's pain. Testing strength in either right or left leg reproduced symptoms in the lower back. However, again I noted that Mr Tran was able to walk on his heels and his toes. Even this activity led to significant symptoms in the lower back, however. … In addition, I felt that Mr Tran was suffering with a significant generalised pain syndrome. Almost all movements, even in the contralateral limb led to significant exacerbation of his symptoms. I noted that Mr Tran had not returned to work activities. He told me that his lifestyle had been severely disrupted by his ongoing symptoms. I gained the impression that the motor vehicle accident had led to significant adverse affect on Mr Tran's general wellbeing. … I felt that Mr Tran was unable to return to his pre-accident occupation as a Courier. His presentation to me, suggested that he would be unable to sit for the periods of time required. He would also be unable to undertake any lifting or walking duties. … I was unable to suggest any suitable occupation that Mr Tran may be able to undertake. As mentioned, he was limited in his capacity to sit or stand for periods of time. I felt that this
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continued to preclude his involvement in any gainful occupation. Mr Tran's prognosis remains guarded. In the twelve months following the motor vehicle accident, there had been no significant improvement in the back and left leg symptoms, in particular. I felt that Mr Tran's pain syndrome had increased over a period of six months since my initial review. I could not see scope for further specific intervention (including surgery) to relieve symptoms. I felt that Mr Tran required the services of a structured rehabilitation programme, with particular emphasis on the psychological reaction to injury." 47 Almost two years later, in February 2002, Mr Goodheart reported: "I last saw Mr Tran in April of 2000. I was told that there had been little change in symptomatology since that time. Mr Tran has continued to experience lower back discomfort which would radiate into the coccygeal region. In addition, he could experience radiation of pain into both legs. The left leg remained most effected. He experiences numbness in the feet particularly upon awakening. He has noted some stiffness in the interscapular region of the spine. He feels 'weak in the pelvis.' I repeated the neurological examination. I found the cranial nerve examination to be normal. There was some limitation of neck movement particularly with lateral flexion to both sides. The deep tendon reflexes were symmetrical in the upper limbs. The knee reflexes were symmetrical and both ankle jerks were depressed but symmetrical on this occasion. The plantar responses were flexor. I could not detect focal muscle wasting nor fasciculation of muscles in the lower limbs. The formal testing of muscle power was limited by pain. For example, he was unable to walk on his toes due to increased lower back discomfort. … I note that Mr Tran has been diagnosed as suffering with a chronic adjustment disorder with depressed symptoms. …
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There has not been a significant change in Mr Tran's medical status since my last report dated 27th April, 2000. It is my opinion that he continues to experience predominant soft tissue symptoms in the lumbar spine with radiation of symptoms into both legs. In addition, he is suffering with a generalised pain syndrome. It would appear that this has now been correctly diagnosed as 'chronic adjustment disorder with depressed symptoms.' It would appear that Mr Tran's symptoms have stabilised to the extent where assessment of disability can take place. It is my opinion that Mr Tran is suffering with a twenty percent disability of lumbar spine function … In addition, he is suffering with a twenty percent loss of left leg function at or above knee … There is only minimal disability in the right leg. It would appear that there is a significant psychiatric component to the presentation and I note that Dr Ng has assessed this as being ten percent. I cannot see scope for specific surgical intervention in the immediate future. I cannot exclude the possibility of surgery being required at the lumbar spine region in the future, however. It is my opinion that Mr Tran's symptoms will persist for the foreseeable future." 48 In September 2002 Mr Goodheart found no significant change. Giving oral evidence he confirmed that the plaintiff had sustained predominantly soft tissue injury which produced left leg pain later. This had remained since and would persist for the foreseeable future. He could not exclude nerve root irritation. Neck pain had improved and was no longer discussed by the plaintiff. He accepted that he was unsure of the benefit of prolotherapy but the plaintiff needed appropriate exercise and rest, with physiotherapy as required. He is now suffering generalised pain syndrome, an overall reaction to injury including reactive depression. He would assess the plaintiff as unable to lift 20 kilograms or 10 kilograms repetitively or to sit or stand in one position for long. 49 Cross-examined, Mr Goodheart said it was not uncommon for persons involved in a motor vehicle collision to develop neck pain within
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one or two days and soft tissue symptoms significantly later, certainly two or three weeks. 50 Mr Goodheart was shown some parts of the videotape, Exhibit 12. He said the presentation was similar to that he had seen between his first and second consultations and that the important thing was to discuss with the patient why he was doing certain things and what their consequences had been.
Professor Andrew Harper 51 Professor Harper, an occupational physician, saw the plaintiff in July 2001 and February and August 2002. His reports are Exhibits 21A – C. A chart of human anatomy referred to in oral evidence is Exhibit 21D. The history he was given of the collision was, he said, consistent with the history of the symptoms he was given but he agreed that a given collision can be productive of a wide range of resultant pathology ranging from very little injury to death. One factor in assessing causation is the chronological proximity of collision to symptoms; another is the forces applied to the spine when a vehicle is stopped in the way described to him. In addition there is the radiological finding of a herniated disc at L5/S1 consistent with the radiating leg pain. Professor Harper's view was that the development of back and leg pain within three weeks after the collision was consistent, as a fracture or fissure in the disc progresses, herniates and pain develops. The plaintiff's account was clearly highly suggestive of pain caused by nerve root compression, although the MRI scan did not show that to have occurred. A bone scan on 10 September 1999 showed moderate inflammation in the soft tissue around the sacroiliac joint. Such inflammation can be the result of trauma or of rheumatological disease or disorders or toxic effects. Physical examination showed an awkward gait with a slight limp, consistent with the general clinical presentation. The natural progress of the plaintiff's condition would be one of "healing with a varying degree of persistent susceptibility to back pain." The inflammatory spondyloarthropathy in both sacroiliac joints would subside in time with general term improvement. Given that pain had persisted aggravated by physical activity with a disc injury and "scar tissue less resilient to further trauma than the original disc tissue" he regarded the plaintiff's disability as permanent and advised against the plaintiff doing physical work again. 52 At the second visit in February 2002, the plaintiff's presentation had been similar to that on the first.
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"He feels symptoms have remained unchanged. Current symptoms include: 1. Neck discomfort and upper back pain which he said are unaltered. The pain is present daily. 2. Low back pain is unchanged. He continues to experience sharp pain in the coccyx coming on spontaneously which causes him to scream out. 3. Left leg pain continues and he said that the left leg has collapsed on two occasions which has given him a fright. 4. Mood changes and strain in his marriage continue. He and his wife continue to argue and he continues to be irritable and get angry 'for no reason'. He feels frustrated over his situation. 5. Insomnia with daytime fatigue continue without change. 6. His slow abnormal gait continues. Symptoms are aggravated by prolonged sitting and also by sleeping. He said that he feels a little better when able to move about. Activities of daily living are unchanged from that described in my initial report. Mr Tran told me about a video film taken in December 1999. He said that this was taken when he was at his best and he was benefiting from hydrotherapy and physical rehabilitation. He said that at the time he was very keen to return to work. However he said that following a medical report, hydrotherapy and physical rehabilitation was discontinued and he has deteriorated since without the benefit of that treatment. PHYSICAL EXAMINATION On examination Mr Tran appeared depressed. He moved slowly and spoke slowly as he did when I saw him last year. He stood after approximately 10 minutes of sitting. His posture was normal. Agility was considerably reduced but particularly so when rolling over on the examination couch. On
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examination of the lumbar spine, I found power, reflexes and sensation in the legs to be normal. Thigh girth was symmetrical. He was unable to squat on the left leg. Hip flexion was slow but was within normal limits in the standing position. Straight leg raising was symmetrical at 80º bilaterally with some thigh pain on dorsi-flexion of the foot on the right. He experienced low back with dorsi-flexion of the left foot. Stressing the sacro-iliac joints resulted in right sided low back pain. Back movements were reduced. In forward flexion his hands reached the knees. Extension was 50-75% of normal. Side flexion and rotation were slightly reduced. There was tenderness over the spinous process of L5 and over facet joints at the L5/S1 level bilaterally as well as over the sacrum and coccyx. Shoulder movements were within normal limits. Neck movements were slightly reduced. There was tenderness over spinous processed C7-T2 and over trapezius muscles bilaterally." 53 However in August 2002 Professor Harper thought there may have been some improvement. Although low back pain was as before, groin pain had resolved, coccygeal pain was less. "Ngoc Lan Tran remains out of the workforce despite having made a number of job applications for clerical positions, work as a laboratory assistant and library assistant. He said that as soon as his injury is revealed his applications fail to progress. In the interim since I saw him earlier this year he completed his Prolo Injection Course with Dr McCallum. His last injection resulted in considerable improvement to his sacro-iliac joint pain and this improvement has been maintained. Current treatment is 2 Panadeine Forte at night and medication for gastric irritation. He walks 10-12 minutes with a maximum capacity of 15 minutes. He uses a fitball. He has discontinued physiotherapy. Visits to his family doctor are monthly. He is no longer seeing Dr McCallum who he says has now retired. He is not having counselling. There are no plans to alter treatment. …
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Current symptoms include: 1. Neck and upper back pain. These symptoms are unchanged. 2. Low back and pelvic pain. Coccygeal pain is much improved and his groin pain has resolved. Low back pain however persists without alteration. 3. Left leg pain. He said this symptom has not improved very much. The leg still feels weak. He is not collapsing but he is very careful when walking and turning. 4. Mood changes. These are unaltered. He continues to feel angry and has outbursts of anger with his family. He continues to feel frustrated and upset over his outbursts but he said he is unable to control them. He does not know why this continues to happen. 5. Insomnia and fatigue. These symptoms are unchanged. 6. Abnormal gait. His gait continues to be affected particularly in the morning due to stiffness. Symptoms continue to be aggravated by sitting, particularly but also by twisting, getting in and out of a car, lifting, prolonged walking and standing. He gets relief from hydrotherapy and physiotherapy. Sitting tolerance is ½ an hour, standing tolerance is 45 minutes and walking tolerance 15 minutes at maximum. He does no housework. He does some shopping but he does most of the cooking. He does not play physically with his children. He only does a very small amount of gardening, the bulk of which is done by his 2 sons. Sexual activity is infrequent. Driving tolerance is for short distances only. PHYSICAL EXAMINATION On examination Mr Tran was very neat in his dress. He continued to walk with a slightly cautious and awkward gait. His affect was flat. Body weight was 53.5 kgs. He remained seated for a little less than ½ an hour before standing. He was not in physical distress. There was no emotional lability. On examination of the lower back, there was altered sensation
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laterally over the left thigh, lower leg and foot. Reflexes, power and straight leg raising were all normal and there was no apparent muscle wasting of the left leg. Range of back movement was reduced with hands reaching the knees in forward flexion. There was tenderness over facet joints at the lumbo-sacral junction bilaterally and over the left sacro-iliac joint. Shoulder movements were normal. Neck movements were reduced. Extension was 50-75% of normal. Flexion was slightly reduced. Side flexion and rotation were within normal limits. There was left sided neck tenderness extending to the medial and superior borders of the scapula and there was tenderness over spinous processes along the length of the cervical spine and into the upper thoracic spine." 54 He assessed the plaintiff as depressed and failing to adjust to and cope with his symptoms and further disabled thereby. At trial, he thought the plaintiff physically able to work half time: "… and I would not exclude the possibility of him being capable of full-time work in the future in a sedentary job which accommodates his restrictions. Regarding employability, I feel that this is low. He has not had work experience in sedentary and clerical work and his history of this back injury all works against him being able to compete. He has informed me that he has applied for jobs, unsuccessfully, so I feel the prospect in terms of his future employability is not good." As to light work, such as sitting at a computer or a workstation doing data entry or clerical-type work: "It is a problem and … in a clerical situation he would need circumstances which would allow him to alternate sitting and standing and would not fix him to his chair, such as being a data entry operator where people simply sit there all the time at a computer. So in the field of clerical work, there are restrictions which mean that he would not be suitable for all jobs … of that type." 55 He added that the period of three and a half years during which the plaintiff had already been out of the work force was an important negative factor working against his prospects of employment. Language was another factor. He might also have problems maintaining employment given possible limitations on performance and the risk of sick leave etc.
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56 Regular exercises to optimise muscle strength and physical fitness would also reduce pain and be of benefit psychologically. Hopefully the need for medications would reduce.
57 Cross-examined, Professor Harper agreed that the MRI scan suggested a much smaller disc protrusion than earlier thought and the possibility that it was reducing in size. He was not able to say whether the plaintiff had pre-existing spinal degeneration but it was common and often asymptomatic with persons aged in the thirties. He also agreed that herniation may occur "with absolutely minimal circumstances." 58 He agreed that the plaintiff's description of his symptoms thus: "The pain is worst first thing in the morning and then improves to some degree and remains at a stable level throughout the rest of the day and night" was a classic definition of rheumatic symptoms. The plaintiff has also told him he was having trouble with memory. He had also described attending a seven week computer course, two hours per day, two days per week and had indicated that he had sat at the back so that he could stand up from time to time without affecting others. He had indicated that his concentration was not affected. Nor did he speak of any learning difficulty. The plaintiff had indicated an interest in returning to work in a clerical or administrative capacity. 59 Professor Harper said that in respect of sacroiliac problems he had referred patients to Mr McCallum but he agreed that prolotherapy treatment was not commonly used. He deferred to those such as Mr McCallum specialising in rheumatology in that joint. 60 Professor Harper also agreed in cross-examination that by use of the phrase "loss of mental capacity" in his report he had meant "emotional impairment". He agreed he had seen no evidence of permanent mental incapacity. 61 Professor Harper described the plaintiff's gait: "He's got a slightly waddling gait where he's rocking from side to side to a small degree, and slight tendency to be a little bit side-based in his gait. He reported abnormal gait and I obviously observed it." 62 He agreed that he would not expect a person with the plaintiff's gait, pathology and reported symptoms to jump on one leg, however the plaintiff had explained that he had done that when undertaking hydrotherapy and active physical rehabilitation and feeling at his best.
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Mr J G Hayes
63 Mr Hayes, a consultant rheumatologist, was called by the defendant. He gave evidence that he first saw the plaintiff on 21 May 1999 and thereafter on a number of occasions in 1999 and early 2000. His reports are Exhibits 14A-J. 64 On the first visit the plaintiff complained of neck movements being painful. Lateral rotation and flexion were within normal range with relatively mild pain; forward flexion was to 80 per cent of normal range with posterior neck pain, and extension was of normal range but produced moderate posterior neck pain. 65 On 24 June the plaintiff complained of back problems. Forward flexion was limited to knee level with tenderness over the L5/S1 interspinous space. A CT scan showed a posterior disc protrusion. 66 On 16 December 1999, that is four days before the videotape film, Exhibit 12, was taken, the plaintiff on physical examination showed grossly restricted and extremely painful forward flexion only to about mid-thigh level. The neck was not, however, a major problem. The plaintiff "demonstrated obvious features of illness behaviour", that is non-organic or psychocultural pain signs. 67 On 25 January 2000 the plaintiff could not bend forward to knee level on examination. Neck injuries were not mentioned. 68 By 28 February 2000 Mr Hayes had seen the videotape Exhibit 12. Part of it was played again to him at trial. On the basis, largely, of the film Mr Hayes reported that in his opinion the plaintiff should be capable of returning to work as a courier. 69 On 27 March 2000 he was examined again and again showed non-organic signs in respect of forward flexion. 70 Mr Hayes agreed that onset of low back symptoms can often be delayed for several weeks after trauma. 71 Whilst there was definite evidence of the low back disc protrusion which could explain symptoms Mr Hayes concluded that "progressively his overall presentation became clouded by many non-organic features." At no time did Mr Hayes think were sacroiliac problems. The hopping on one leg shown in the videotape would tend to aggravate such a problem and there was never pain or tenderness in that area. Serious traumatic injury to a sacroiliac joint would produce immediate pain.
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72 Cross-examined Mr Hayes agreed that the disc protrusion at L5/S1 had been productive of pain symptoms either being an asymptomatic pre-existing condition being further damaged and made symptomatic by the trauma or being itself the product of the trauma and impinging on a nerve.
73 On 1 November 1999 Mr Hayes reported that the plaintiff's low back pain was "definitely lessened" and that there were then "minimal symptoms" in the left leg. However by 7 December the plaintiff was reporting "marked lower back pain radiating" into the left leg. He commented in evidence that with most patients such symptoms settle over three to six months. An MRI scan showed the disc protrusion to be a small one, less than on the CT scan, with no associated nerve root compression. The work was not excessively physical in nature, involving relatively short periods of driving, walking and not much lifting. 74 Mr Hayes accepted that symptoms might fluctuate over time. 75 The medication being taken by the plaintiff are, Mr Hayes said, of low dosage. 76 Mr Hayes said that Mr McCallum's views in relation to sacroiliac problems are "highly controversial and not accepted by mainstream orthopaedic or rheumatological medicine."
Dr J Rosenthal 77 By consent the defendant tendered the reports of Dr J Rosenthal, Exhibit 23A – C. On 1 November 1999 Dr Rosenthal reported: "On examination his gait is satisfactory, he could squat, heel and toe walk. He had difficulty sitting up on the examination couch with his knees extended. He also complained of pain with weight bearing solely on the left leg. His movements are very guarded, he would only forward bend to reach the knee joints, there is a cut off at mid-extension and he resists rotation. His straight leg raise is full with negative root tension testing. He did complain of back pain. I found no evidence of lower limb weakness, his reflexes are symmetrical and the sensory change in the left lower limb is global and non-dermatomal. He is tender over the left buttock but not significantly over the sacroiliac joint. There was variable mid-line thoracolumbar tenderness to fairly light palpation.
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Following the examination he complained of a headache and pain everywhere. … Mr Tran presents with lower back and left leg pain which I feel is predominantly of soft tissue origin. Whilst noting that his isotope scan is slightly abnormal, there is no convincing evidence of an inflammatory spondyloarthropathy noting that he is sero-negative and there has not been a positive therapeutic response to non-steroidal anti-inflammatory medication. I do not consider that there are any radicular features to his clinical presentation, but rather his pain is of posterior segment origin. … There are no discrepancies between his subjective complaints and the objective findings. His six month period of complete absence from the work force is a matter of some concern and I have difficulty with the proposition that he continues to be totally unfit for his pre-accident occupation. I do acknowledge that prolonged sitting in a vehicle would probably aggravate his lower back symptoms to some extent, but he does have the opportunity to get out of the vehicle and stretch after relatively short delivery runs and I would think that his further clinical improvement would be more assisted by activity than rest. He should certainly resume working half time with gradual increments towards full time over a period of four to six weeks. It is difficult to see a positive continuing role for passive physiotherapy. I think that his rehabilitation should take a more pro-active approach with a structured exercise programme. I would also recommend some cognitive behavioural input as there does appear to be a high level of disability conviction with attendant hypervigilant pain behaviour." 78 On 2 March 2000 Dr Rosenthal reported on having viewed the videotape, Exhibit 12: "On the assumption that positive identification has been made, the film shows him exhibiting normal gait. He is able to get
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into and out of the driver's seat of the vehicle on a number of occasions without any restriction whatsoever. He is seen driving the vehicle fully rotating his neck and trunk. His gait is also noted to be normal going up and down stairs. He is then seen at an indoor swimming area being able to bend forwards and sideways without any restriction or difficulty. He is seen entering and coming out of the water. He is seen jumping up and down on the spot, initially trying to get the water out of his ears as his head is tilted to one side. The level of activity seen on the video film is quite incompatible with the proposition that he cannot work as a courier delivering x-rays. I have absolutely no hesitation in certifying him fully fit for his pre-accident occupation as of the date that the film was taken." 79 On 19 April 2000 Dr Rosenthal reported: "Mr Tran has remained off work. He said that his employer cannot allocate alternative duties. He is absolutely adamant that he is incapable of working as a courier delivering x-rays. His present medication is 3 – 6 Tramadol tablets per day. This was prescribed by Dr Michael Kent. He had previously been taking Panadeine Forte. I note interim sessions with a clinical psychologist. There were approximately six treatments. Mr Tran reports that his pain remains unchanged. It is constant though of variable intensity. It is in the lower back referring into the left buttock, thigh and lower leg. He said that he has occasional symptoms on the right. He is presently attending hydrotherapy twice a week and doing some walking. On examination there is a histrionic pain behaviour with features of deliberate embellishment. He would only forward bend to reach the mid-thigh. He was reluctant to move very much in extension or rotation, though passively I could demonstrate a normal range. The situation is similar with straight leg raising. He could squat, heel and tow walk. He
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complained of buttock pain on the left with weight bearing on one leg. Mr Tran said that he had now been referred to Dr Goodheart (a neurologist). The referral had been instigated by his lawyer. … His present condition is that he has a mild degree of mechanical lower back dysfunction. There are florid features of abnormal behaviour with disability embellishment. I would not recommend further treatment other than simple analgesics and regular exercise. Further medicalisation of the situation will only be counter productive. The decision to refer him to a neurologist is a matter of legal preference and not medical necessity. In my opinion Mr Tran is fit to carry out his pre-accident occupation. I do not believe that he is incapacitated to anywhere near the extent he purports. His behaviour is altered in the context of a compensable injury. There may be a low order of permanent disability in the lower back. This would certainly not exceed 10% loss of function. It is highly questionable whether his true disability would be that high, but I think it does give him the benefit of every reasonable doubt. His condition has stabilised sufficiently for the matter to be settled. The sooner this occurs the better as I believe his subjective level of disability is closely related to unresolved medicolegal issues."
Mr R J Vaughan 80 The defendant called Mr Vaughan, neurosurgeon, who saw the plaintiff on 21 January 2002 and whose two reports are Exhibits 24A and B. After seeing the plaintiff Mr Vaughan concluded, after reviewing the history and symptoms: "Going back into the history there would seem days, even weeks following the reported crash that there were no back region symptoms and that these symptoms, whilst following the
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crash would seem removed from the effects of the crash and whilst undoubtedly causing Mr Tran concern, would not appear to me to have been incident caused. In other words, to have developed spontaneously, stating again the time lag between the reported crash and the onset of symptoms, during which time there were symptoms elsewhere but no related to the back region. If there had developed a tear or split in the L5/S1 disc giving rise to protrusion later that would have caused immediate pain and likewise I would believe if there were injuries to the sacroiliac joints then there would have been the onset of symptoms immediately. I do not know of any pathology that would develop significantly later following a crash without there being an immediate onset of symptoms. There seemed no doubt that the upper dorsal symptoms had occurred very early on and improved with treatment whereas the lower torso symptoms appeared much later and appeared to have occurred whilst treatment had been given to the upper torso. Clinically there would appear then to be pathologies in the sacroiliac joints which would appear to me to have arisen spontaneously and whilst the symptoms had occurred following the crash or incident, did not appear to have any relationship to that. Given the time lag there would appear no doubt that the worry for Mr Tran at present with the ongoing nature of the symptoms as he described and the appearances on the bone scan and further, to the appearance of the small disc protrusion at L5/S1 in keeping with the more left sided directed buttock and leg symptoms. … 1. Regarding the sacroiliac state – there certainly are symptoms in the area … but in the absence of the symptoms appearing immediately with the crash I would relate it to spontaneous development not directly caused through the processes of the crash. Mr Tran's current gait is unusual and in keeping with sacroiliac disease further aggravated by the small protrusion as seen again, the symptoms of which did not appear until well after the
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reported event and so I cannot draw any direct association with the crash and the later onset of symptomatology. … 3. A disc bulge across L5/S1 may aggravate the general symptoms for Mr Tran but as the symptoms did not arise earlier after the crash I would relate that change to a spontaneous development … 4. It is the gap between the onset of symptoms and the time after the crash that lead me to believe that the current symptoms suffered by Mr Tran in his lower torso relate to spontaneous developments, … but which I believe does not relate to the crash. Finally I am of the view Mr Tran is capable as he has indicated to me of working in a sedentary capacity, clerking or similar whereby he is not required to sit for long periods and is not required to drive more than the period of approximately half an hour." 81 On 4 February 2002 Mr Vaughan reported: "I had the opportunity of seeing the video on Mr Tran yesterday … In the video Mr Tran is seen driving a car and then later helping with another person's vehicle to raise the bonnet. In doing what appeared to be a good deed Mr Tran showed very normal movements of the lower back area and was able to move to and from the other vehicle without hesitation, without limp and was able to bend forward and perform whatever tasks were necessary beneath the bonnet of this vehicle. I observed Mr Tran's posture to be normal, relaxed, standing easily, often with hands in pocket, to close the bonnet of his vehicle, on another occasion comfortably. I observed Mr Tran in another footage carrying a bag and being involved with his apparent family in water activities, including walking upstairs and going down a water slide. He showed no apparent discomfort whatsoever and on emerging from the pool was able to jump from side to side in the apparent motion of
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clearing his ears of water and certainly showed no discomfort whatsoever following that movement. My understanding was that the video was taken in December 1999 which was some months after the reported crash and was in keeping then with my view that the onset of the sacroiliac problems and of the disc lesion had occurred well beyond the crash time and related to spontaneous development and not to be crash related. It would appear to me to be impossible for anyone suffering with significant sacroiliac disease or a significant disc protrusion to be able to display such ease of movement as displayed in the video. As I said in my earlier views, the problem for Mr Tran had developed well after the crash and were not crash related." 82 Giving oral evidence Mr Vaughan confirmed that the plaintiff's symptoms emanated from two separate origins, the sacroiliac joint and the L5/S1 disc, and the views he had expressed in his reports. If there had been significant injury to the lower torso symptoms would have arisen. Neck pain would be the usual symptom from such a collision. Lumbar sacral pain is rare. Injury to the sacroiliac joint would require "massive" forces and produce immediate acute pain which the neck pain would not mask. Because of the history of the two week delay in pain onset Mr Vaughan did not think either the disc area pain or the sacroiliac problem related to the accident. Given the symptoms reported to him he had been astounded to see in the videotape the plaintiff jumping on one foot. 83 During cross-examination, he expressed the matter thus: "I mean, I just would say clearly that if someone could bounce up and down on one leg and the other, go up and down platforms, come down into a pool, they would not have had many symptoms at that time and certainly no significant injury. MARSHALL, MR: Could they not have had an injury, yet they were feeling better that day?---No, because an injury in my view is something that continues on. … … Good days and bad days?---I don't know if you changed the nature of the pain, gave them hallucinogenic drugs or a dose of heroin, maybe that would be the only way I can see anyone
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jumping up and down as I saw. I mean, I was amazed because I had seen this man and clearly there was a change from that incident to when I saw him, but at that particular time you could not have done what he was doing and had much wrong with you." 84 Cross-examined he agreed he could not say of the L5/S1 disc protrusion had existed prior to the collision or was caused by it. The delay in reporting symptoms demonstrated that the protrusion had not been rendered symptomatic by the collision. On this issue he differed from Mr Hayes. He differed from Mr McCallum in attributing the sacroiliac problem, which he acknowledged, to the collision and in addition regarded Mr McCallum's treatment method as unproven and much debated.
Mr M E Bowles 85 The defendant also called Mr Bowles, an occupational physician, who saw the plaintiff on 25 January 2002. His report is Exhibit 25. After recording the plaintiff's account of his history and symptoms Mr Bowles reported: "On examination Mr Tran presented as a pleasant man. He walked slowly with a limp favouring the left leg. There was an element of pain behaviour particularly after the examination with some grimacing and exclamations of distress. Examination of the neck and the upper back and limbs was unremarkable with no reported symptoms. There was a full range of movement in the neck, the upper back, the shoulders and other upper limb joints. Neurological examination of the upper limbs was unremarkable. Tone, power and reflexes were equal and symmetrical and there was no sensory loss to light touch. Mr Tran was noting lower lumbar back complaints but no localising features. There were no specific complaints about the sacro-iliac joints although he did note discomfort into the sacrum and into the coccyx itself. There was no light tenderness. Range of movement showed Mr Tran able to forward flex and get his fingertips to his kneecaps. There was some limitation in extension and lateral
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flexion. There was no response to simulated rotation or axial compression. Straight leg raising was to 85º in both legs. Tone, power and reflexes were equal and symmetrical. Mr Tran noted a light touch sensory loss in the lateral aspect of his left lower leg and left foot. Stressing the sacro-iliac joints did not reproduce pain in those areas. Investigations The most recent investigations include an MRI scan on 4 May 2001, which showed no change from the previous study. There was a shallow, broad-based central disc protrusion noted at L5/S1 with no neural compression. Bone scan on 10 September 1999 showed a marked increase in both sacro-iliac joints along with prominence of uptake in the spinous processes in the lumbar spine where suspicious of underlying inflammatory spondylo-arthropathy. Similarly changes were noted in both hips joints and in the costochondral junctions again raising the possibility of an inflammatory process. Other Medical Reports The other medical reports from both Mr Tran's treating doctors and other medico-legal reports indicate a similar history related to me today with regard to the motor vehicle crash with some neck complaints initially. It was not for a period of 2 – 3 weeks that back pain and left leg pain became a part of the clinical picture. I also note that it appeared that the employer was not keen on having Mr Tran back unless he was fully fit. This is a significant negative prognostic feature for chronic back pain. I believe that the back pain needs to be placed in the context of what is expected in the general population from time to time. Waddell and associates interviewed 500 people about how their back pain started. 60% had said their first attack began suddenly with two thirds of those people saying it was an accident although this was an every day activity that they had done many times before with no different undertaking on that occasion. The other one third of that 60% related that the pain began spontaneously and there was no apparent precipitating
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event. Of those who had a gradual onset most could not identify the cause of their present problem. Troup and his colleagues looked at back pain in the occupational health setting and studied 1000 people with an episode of back pain or sciatica. In 50% the current problem was spontaneous with no question of any kind of injury. Back pain is a frequent predicament faced by the general population from time to time. It can be and most often is spontaneous in nature with no need for trauma or any event to set-off episodes of back pain or indeed sciatica. Mr Tran gives a history of back pain and sciatica several weeks after the motor vehicle accident and I believe that the association between the two is false and the only reason to link the two events relate to issues to moral hazard. The other complaints that I would accept as a consequence of the motor vehicle accident in regard to headache and pain in the neck and the left shoulder all of which have resolved with no significant ongoing residual complaints. I would also note that Mr Tran has radiological evidence of an underlying inflammatory arthropathy affecting the sacro-iliac joints, his hip joints and the chest. His current history is suggestive of an inflammatory arthropathy given the predominant complaints of morning pain and stiffness, which improve with activity and the pain with rolling. This is a further confounding factor in the current predicament. … In my opinion Mr Tran has made a complete recovery from any injury sustained in the said motor vehicle accident. Similarly as a result of any injury sustained in the motor vehicle crash I do not see any impairment in his work incapacity. Similarly the back and the left leg sciatica pain appears to have resolved to a significant degree which is not unexpected given the length of time since the onset of those complaints. As I have indicated his predominant symptoms complex appears to be that of the inflammatory arthropathy when seen today. Mr Tran is currently relating not working. The duration for this period of unemployment is difficult to predict. Statistically
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there is little chance Mr Tran will return to employment in the foreseeable future. Mr Tran himself did note some of the positive benefits of employment apart from earning a wage which include psychological benefits and also distraction away from physical complaints. In my opinion Mr Tran taken as a whole today does have a significant work capacity. I believe that courier driving would be a suitable undertaking for him particularly undertaking shorter runs where he could get out of the car and move around walking delivering his x-ray packages etc. … Other factors are also integral in Mr Tran's ongoing disability and pain complex. One could not explain his ongoing presentation just on the medical model of an injury alone. Considerable literature is published on ongoing disability following motor vehicle accidents and the bio-psychosocial model aims to take into account of the broader range of influences which may coalesce into the formation of this problem. Mr Tran may have suffered an acute sprain, which resolves without chronic damage. Other confounding medical complaints have subsequently occurred including the spontaneous back and leg pain and the underlying inflammatory arthropathy. Our culture in Australian provides overwhelming information regarding the potential for chronic pain following whiplash injuries. Medical systems encourage inactivity and caution. The issue about the lack of any alternative duties is an important factor in the return to work process and a recent article in the journal 'Spine' reiterated that this was a significant negative prognostic factor for chronic back pain. Litigation process involve protracted battles with insurance companies. Repeated independent medical examinations re-enforce and entrench pain behaviour and prejudice the worker against the insurance companies. Overall Mr Tran is led to expect, amplify and attribute his symptoms in a chronic fashion and more so through the systematic bias attribute all and any axial skeletal complaints to the motor vehicle episode.
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I also reviewed the surveillance video taken on Mr Tran towards the end of 1999. The activities noted on the video would suggest Mr Tran had made a full functional recovery from whatever problems he was suffering around the time of the motor vehicle accident and subsequently. Further re-enforcing my thoughts on the issues behind his current presentation." 86 Giving oral evidence, Mr Bowles confirmed that his opinion as to the plaintiff's capacity to work related to physical, rather than psychological or psychiatric capacity. Cross-examined Mr Bowles agreed that the plaintiff's neck symptoms still included occasional aches and pains and limitation of movement and that there were signs of sacroiliac problems and some nerve root irritation problems spreading into the low back and left leg. His view was that working as a courier driver would be of benefit even though it might involve some difficulty.
Psychiatric evidence
Mr F K F Ng 87 Mr Ng, a psychiatrist, was called by the plaintiff. He saw the plaintiff in October 2001. His report is Exhibit 13. He concluded, after reading a large number of other medical reports and taking a history, that the plaintiff suffers a chronic adjustment disorder with depressed symptoms. He described this as a mild condition:
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He told me that his appetite had increased, his energy levels are low, his libido is very poor and his motivation levels variable. … On mental status examination this man presented as moderately well groomed with variable eye contact, who was clearly in discomfort when he sat down and walked around. His affect was mildly depressed, with no evidence of dramatisation or minimisation. … His speech was of normal form, flow and rate, there was no evidence of bizarre or inappropriate behaviour. … This man does not have a previous psychiatric history prior to his accident, his psychiatric symptoms have arisen as a result of the accident, the sequelae of the accident including constant pain, and loss of functioning, and a frustration with the loss of functioning and pain, and his grave fears that his condition will deteriorate over time. It is my opinion that if his physical symptoms and loss of functioning should continue for the foreseeable future, that this man's chronic adjustment disorder with depressed moods will continue for the foreseeable future as well. According to Item 8 of schedule 2, of the Workers' Compensation Act, it is my opinion that this man has a permanent loss of mental capacity of 10%. … Currently this man does not require psychotropic medication. He does not require hospitalisation, nor does he require to see a psychiatrist. However he needs to attend his general practitioner on a regular basis for close supervision of his mental as well as physical condition. He is at risk of developing a major depressive disorder which he does not currently have. … As stated previously, should this man's physical problems continue for the foreseeable future, then the stress involved in that will drive his psychiatric condition for the foreseeable future." 88 In oral evidence Mr Ng said he had not been provided with a report from Dr J Rosenthal. Nor was he a user of the TOMM test referred to by
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Mr Z Mustac in his report, commenting that most of his colleagues do not use it. 89 Mr Ng was asked about the plaintiff's concentration and memory. He replied: |