Tucker v Chaytor - [1999] WADC 37

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
CIVIL

LOCATION: PERTH

CITATION: TUCKER -v- CHAYTOR [1999] WADC 37

CORAM: O'BRIEN DCJ

HEARD: 5 AND 6 AUGUST 1999

DELIVERED : 19 AUGUST 1999

FILE NO/S: CIV 790 of 1998

BETWEEN: ANDREW PETER TUCKER
Plaintiff
AND
KEVIN MAXWELL CHAYTOR
Defendant

Catchwords:

Motor vehicle accident - Back injury - Causal connection to accident - Turns on own facts.

Legislation:

Nil

Result:

General Damages awarded.

Representation:

Counsel:

Plaintiff: Mr R Burgio
Defendant: Mr J G Staude

Solicitors:

Plaintiff: Hoffmans
Defendant: J G Staude

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

EMI (Australia) Ltd v Bes [1970] 2 NSWR 238

Case(s) also cited:

Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538
Australian Iron and Steel Ltd v Connell (1959) 102 CLR 522
Australian Shipbuilding Industries (WA) Pty Ltd v Packer (1993) 9 WAR 375
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Darling Island Stevedoring and Lighterage Co Ltd v Hussey (1959) 182 CLR 482
Georginis v Kastrati (1988) 49 SASR 371
March v E & M H Stramare Pty Ltd (1990-91) 171 CLR 506
McGhee v National Coal Board (1972) 3 All ER 1008
St George Club Ltd v Hines (1962-63) 35 ALJR 106
State Government Insurance Commission v Oakley (1990) A Tort Rep 62,574
Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303
Watts v Rake (1960) 108 CLR 158

O'BRIEN DCJ: On 23 May 1992 the plaintiff was a prisoner being transported from the East Perth Lock-Up to Casuarina Prison. He was a passenger in a Mazda Bongo Van driven by the defendant, a police officer. The plaintiff was seated in the back of the van on a wooden bench. He was not wearing a seat belt as none was fitted. The rear of the van was partitioned from the cabin by a steel barrier of wire mesh. There were three other small windows, one at the back and one on either side. After dropping another prisoner off at the Canning Vale Prison the van travelled along Nicholson Road Canning Vale. The defendant braked suddenly when approaching a line of stationary traffic. The van skidded off the road and ended up on its side. There was some dispute as to whether the van flipped over or simply tipped onto its side. The plaintiff testified that the van rolled over and as there was no other evidence on this issue, that is more likely than not what happened. In any event, nothing turns on this. The plaintiff was injured in the accident. Liability for the accident was admitted by the defendant's statutory insurer, the SGIC. The plaintiff claims general damages, loss of earnings, damages for gratuitous services and some special damages.
The defendant denies that the plaintiff suffered the injuries he alleged but in any event says that he recovered from them.
On admission to the prison, the plaintiff was seen by a prison nurse. He was admitted to the prison infirmary where he remained for 10 days before discharge into the main prison population. He was released from prison on 24 February 1992. The plaintiff was sent to prison again in 1993 as a remand prisoner. He was released some time before 1994. In 1994 the plaintiff was again a sentenced prisoner and was released on 8 August 1995. The plaintiff admitted to being a drug addict and in the periods between his times in prison he resumed his use of heroin and other legal and illegal drugs. During his times in prison, the plaintiff was treated by the Prison Health Services.
The plaintiff said that he had no warning of the accident. As the van rolled over he hit the side of the van and his head hit the roof. He landed on his side and the back of his hip. He was removed from the van and handcuffed to a fence. He said that he complained to the police at the scene that his back and shoulder hurt and asked the police to be taken to hospital to have his back x-rayed. However, another van arrived and he was taken to prison.
The nurse who saw him on admission to prison gave him sleeping pills and he was kept in the prison infirmary until the prison doctor could see him. The prison doctor was contacted and he advised observation with a view to diagnosing if there were any internal or head injuries. The plaintiff testified that he suffered lacerations in the accident and some bruising. The plaintiff's prison health file is an exhibit and contains a compilation of medical notes relating to the plaintiff's medical treatment in various prisons. The medical notes made on admission and on 26 May 1992 specifically mention that there was no evidence of bruising. There is also no mention of lacerations or other visible bodily injury.
The plaintiff was seen by Dr Bockman, a prison doctor, on 26 May 1992. Dr Bockman noted that the plaintiff was stiff and sore from his neck to the bottom of his spine and that he was moving slowly. The medical notes made on 28 May 1992 record that the plaintiff was observed to play pool and was walking around the ward with no restriction. The plaintiff testified that whilst in the infirmary he was walking with a limp. There is no record of this. Given the observations of the plaintiff's gait and condition which were noted, I would expect that in the ordinary course of events if indeed the plaintiff was limping, that would also be noted. The plaintiff was discharged from the infirmary on 2 June 1992. Thereafter he was seen by either nursing or medical staff on seven occasions before 6 July 1992. There is no recorded complaint of any symptom which could be associated with back or other injury.
After his discharge from the infirmary, the plaintiff was assigned work in the print shop.
The plaintiff testified that on 1 July 1992, he hurt his back when he was required to lift a pallet of boxes of paper. He said his back clicked and he felt a very sharp pain. Prior to that, his back was still sore but the pain was not as severe as that he experienced after lifting the pallet. It appears from the medical notes that the diagnosis was muscular strain and Panadeine Forte was prescribed. On 8 August 1992 there is a note to the effect that the plaintiff's back was again "troublesome", making reference to the injury on admission. There are further references to back pain in the notes concerning consultations on 12, 18 and 26 August and 2 September 1992. The plaintiff was certified fit for light duties and by 9 September 1992 he had returned to work and was able to work as a cleaner.
The plaintiff was transferred to Karnet Prison in July 1992 and discharged on 24 September 1992. He was seen by medical staff on 16 September when he complained of back pain and stiffness in the right "upper buttock and lower back". There is reference in the medical notes to "[R]ollover in police van on 23/5/92". I am unable to decipher the rest of the note and the medical reports by prison doctors make no reference to it.
The plaintiff said that while he was in prison he saw the prison doctor once a week. He asked to see a specialist but says that he was not given the referral until towards the end of his sentence. The plaintiff said that because he resumed his drug habit on his release, he did not seek review by a specialist. He said that he was taking heroin and any other drug he could obtain and felt no pain in his back - his primary thought was to get hold of heroin.
The plaintiff recalled that in 1992 he was doing some shopping in Armadale and put his back out and was in quite a bit of pain. This was the only evidence of any specific incident of back pain before the plaintiff was re-sentenced.
When the plaintiff was sentenced again in December 1994, he served time in Casuarina Prison and was then transferred to Pardelup in the south-west. When in prison this time, he was treated by the prison doctor and also by Dr Drummond, a general practitioner, in Mt Barker.
On his release from prison in August 1995, the plaintiff decided to get off drugs. His de facto wife, Ms Tracey Rayner, had just given birth to a baby and he decided to go straight. He obtained work as a farmhand doing farm duties and driving tractors.
The plaintiff testified that as he was pulling weeds in July 1997, he aggravated his back again. He consulted Dr Drummond's locum, Dr Mason, who gave him three weeks off work. At the time he said he was still suffering back pain but it was not as severe. The pain was aggravated by lifting and bending. The plaintiff received worker's compensation for the time that he was off work.
On his return to work, the plaintiff was required to plant blue gums. He found that his back was unable to cope with this work and he was dismissed.
The plaintiff was then employed by the Vineyards People and worked there for about 12 months from January 1998 until January 1999. In that job he drove tractors and did other general farm duties, including planting vines.
The plaintiff testified that the tractor driving aggravated his back so he was given lighter duties. He found that he had to take time off work to rest his back.
The plaintiff's immediate supervisor, Mr Darryl Kennedy, resigned from the Vineyards People and started his own company called "Quicklink". He offered the plaintiff a job. The type of work the plaintiff undertook was the same as he had been doing for the Vineyards People. However, he found that he would work three days and then have to take two days off because his back could not cope with the work. Mr Kennedy put him on light duties in the office. However, the plaintiff found that even these duties aggravated his back and in March 1999 he stopped work and has not worked since then.
The plaintiff said that he now cannot travel any great distances in a car; he finds it difficult to remain seated for any length of time; he is unable to do gardening; he is unable to ride a motor bike for more than 50 kilometres; he cannot chop wood, garden or mow the lawn; nor can he fix his car engine as bending over the bonnet causes his back problems.
Ms Rayner testified that the plaintiff had back pain when he was released from prison in 1993 and he obtained drugs from doctors by representing that he had pain in his back. She said that the doctors would not give him the drugs unless he had a valid reason for using them. Ms Rayner said that because of problems in her life her memory of events prior to 1994 is not good.
Ms Rayner said that just before the plaintiff was released from prison in 1995, she moved to Mt Barker. When he was released, she would massage his back and use the heat lamp to relieve his pain. She said that he was unable to chop wood for the hot water system and fire or do any of the gardening or lawn mowing. She undertook these tasks.
Since his release from prison in 1995, the plaintiff has worked basically as a manual labourer. His work history was not presented in any great detail or supported by any documentation apart from his Quicklink group certificate covering his employment from 25 January to March 1999.
His last employer, Mr Kennedy, testified that he valued the plaintiff as a worker and tried to accommodate his back pain by giving him duties that would not aggravate the back. Mr Kennedy testified that, to his recollection, when the plaintiff worked for the Vineyards People he worked most of the year barring a couple of times when the weather or the climate caused the work to stop. Mr Kennedy was unable to recall whether the plaintiff had time off work because of his back complaint. In 1999 when the plaintiff was working for Mr Kennedy he said that the plaintiff complained on a number of occasions about his back. The work ran out in April about a month after the plaintiff stopped working. Mr Kennedy said that the work which the company was doing at the time was not suitable for the plaintiff given his back problems. Mr Kennedy said that he would re-employ the plaintiff again but I inferred from his answer, only if he was able to find him tasks which the plaintiff could do without aggravating his back.
Dr Seah was the only doctor called by the plaintiff. Dr Seah replaced Dr Drummond in the practice in Mt Barker. Dr Seah only saw the plaintiff on two occasions, in April and August 1999, for the purpose of writing a report in support of his damages claim. Dr Seah is a general practitioner with no professed expertise in spinal disorders. He was of the view that the plaintiff's injury occurred in the accident in May 1992 but this had healed. He said that the plaintiff's ongoing back problems were related to that injury.
Dr Seah testified that in his view the injury suffered in the accident set up stiffness which persisted and when the plaintiff did any activity which required heavy lifting, bending or prolonged sitting, he experiences pain. Dr Seah said under cross-examination that the plaintiff's present symptoms could also be equally attributable to the accident in 1997 when he hurt his back when pulling weeds. He agreed that just because a person suffers a succession of back injuries does not necessarily mean that they can all be attributable to the first. Dr Seah also testified that the injury to the spine received in the accident is likely to have made the plaintiff's spine more vulnerable to injury or aggravation.
Dr Seah referred to Dr Drummond's notes. It appears that Dr Drummond saw the plaintiff in his surgery on 2 October 1996. The notes indicate that the plaintiff was known to Dr Drummond from Pardelup. However, in his report tendered as an exhibit, Dr Drummond said that he has not at any time been consulted with respect to injuries sustained in the accident on 23 May 1992. Dr Drummond's report reveals that the plaintiff attended his clinic on 24 April 1998 in order to obtain the exhibited report. He complained of ongoing low back pain which limits his ability to bend, twist and lift heavy objects for extended periods of time. In his opinion, Dr Drummond concluded that, " [I]t would be impossible to definitely say that the [plaintiff's] back pain is as a result of the accident … however, it could have contributed to his back pain".
The plaintiff has never been x-rayed or had other imaging investigations. The plaintiff has never seen a specialist about the pain in his back since the accident despite the pain, on his account, persisting since May 1992. Since his release from prison in 1995, the plaintiff has only received treatment for his back one time in July 1997 when he experienced back pain when pulling weeds and was given time off work.
I accept the plaintiff's evidence that he suffered some injury to his back in the accident in May 1992. Shortly thereafter he suffered muscular strain in his back when he lifted a pallet of paper in prison. There are a number of entries in the prison medical notes which document complaints about back pain. The latest in the months following the accident was on 16 September 1992. The next documented complaint about back pain is in the prison medical notes on 10 May 1995. In the meantime, the plaintiff had either been in prison or in the community. There is no documented evidence that he sought treatment for back pain.
I accept the plaintiff's evidence that when he was in the community between prison stays that he visited many doctors. However, given the plaintiff's drug addiction and his evidence that he was not aware of back pain because of the drugs that he was taking, and the paucity of evidence of specific symptoms during this time, I cannot be satisfied on the balance of probabilities that there was in fact any back pain or any effects on his back from the accident in 1992. A factor supporting this view is the fact that there is no evidence that the plaintiff sought any treatment for his back until July 1997. The back pain he experienced then was directly attributable to an injury he received when weeding.
The plaintiff said that he has suffered chronic back pain since the motor vehicle accident. He says that his lifestyle was impaired. He has been unable to pursue his hobbies and contribute to the household chores (for example, by chopping wood), his employment was interrupted and finally ceased because of his back trouble. Given these effects, it is not unreasonable to expect that a person with that degree of pain and inconvenience would seek medical attention. There is no evidence that the plaintiff did so, apart from the times I have mentioned. There is no cogent medical evidence which assists me to come to a finding that the back pain which the plaintiff says he now experiences, was in any way related to or caused by the accident in 1992.
I have reviewed the authorities referred to by counsel for the parties. A court can elevate the possibility of causation between accident and injury to probability in the absence of cogent and clear medical evidence (EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 at 242). After examining all of the evidence in this case, I am unable to do that. There is a paucity of medical evidence in circumstances where, on the plaintiff's evidence, it is reasonable to infer that medical treatment would be sought for the back pain. However, the plaintiff's own testimony and that of Ms Rayner and Mr Kennedy does not satisfy me on the balance of probabilities that whatever back pain the plaintiff suffered on his release from prison in 1995 and according to him, still suffers, was caused by the accident in May 1992.
Accordingly, I am prepared to make an award of general damages for pain and suffering the plaintiff suffered after the accident until his release from prison in 1993. Thereafter, whatever pain the plaintiff suffered, in my view cannot on the evidence presented, be causally related to the accident in 1992.
In all of the circumstances, I make an award of general damages in the sum of $7,500.
I shall hear from counsel on the issue of costs.