Walker v Sgic No. DCCIV-96-169 Judgment No. D21

BRUCE WALKER v STATE GOVERMENT INSURANCE COMMISSION

[1999] SADC 21
Judge Russell
Civil

1 The plaintiff is a truck driver by occupation.
2 At all material times he was employed by Cleveland Freighters Pty Ltd ("Cleveland").
3 At about 4.00 p.m. or shortly afterwards on 29th June 1993, in the course of his employment with Cleveland, the plaintiff was securing a tarpaulin over a load of compacted paper on an open trailer, which was to be hauled by a prime mover from Cleveland’s depot at Regency Park to Perth.
4 The plaintiff was being assisted in performing this task by another of Cleveland’s employees, Michael Sanchez.
5 The first ropes attached to the tarpaulin to be secured are the front and rear ropes.
6 The plaintiff was securing the front ropes and Sanchez was securing the rear ropes.
7 At the same time Brett Warnes, who at that time was the mechanic employed by Cleveland, drove a prime mover from the workshop, where it had been serviced, out on to the yard in which the trailer, that the plaintiff was preparing for its journey, was positioned.
8 Warnes, who was killed in a truck accident on 12th March 1994, reversed the prime mover towards the front of the trailer. In doing so the rear of the prime mover came in contact with the plaintiff’s lumbo sacral area, forced him back so that his head came in contact with the vee shaped slot in the turntable of the prime mover and forced the front of his body up underneath the trailer.
9 The plaintiff screamed, whereupon Warnes stopped the prime mover and put it into a forward gear.
10 The plaintiff’s evidence was that, when Warnes moved the prime mover forward, he fell off the rear of the prime mover onto the ground.
11 The plaintiff was the only person who gave evidence of the accident. Warnes, as I have said, died in 1994 and although Ms Brown, who appeared as counsel for the plaintiff, opened the case on the basis that she intended to call Sanchez. However, he was not called as a witness. The only explanation given by Ms Brown for that was because Sanchez was attending a funeral on the first day of the trial and there was no explanation as to why he was not called later.
12 I must confess a modicum of surprise at the lack of evidence of the incident itself, in that the yard was a hive of activity at that point in time.
13 However, the fact that the accident occurred was not called in question and on the facts I find proved I am satisfied on the balance of probabilities that Warnes was negligent in the way in which he drove and manoeuvred the prime mover and that as a result of that negligence the plaintiff suffered bodily injuries.
14 The plaintiff said that he remembered somebody getting a pillow and a blanket and that "people come from everywhere, heard the screaming, mechanics, office staff, just come from everywhere. Somebody went and rang an ambulance, must have gone and rung an ambulance, the workshop manager was there with me, there was a couple of other drivers there with me at the time that I remember, ...."
15 Moreover, since the injury was caused in the course of the plaintiff’s employment, one might have expected Cleveland and Workcover would have some documentary evidence bearing on the matter.
16 Be that as it may, seemingly, an ambulance was called at 4.28 p.m. and arrived at the scene at 4.34 p.m. The plaintiff walked to the ambulance and it left at 4.45 p.m., arriving at the Queen Elizabeth Hospital at 5.00 p.m.
17 The ambulance officer’s report to the hospital discloses that:-

The plaintiff was conscious, alert and orientated.
The plaintiff complained of lumbar tenderness and initial pain to the genitals.
Abrasion to lumbar region.
No numbness or tingling in the lower legs.
The strength in the left leg equal to the strength in the right leg and both were strong.
No abnormality detected in genitals.
Abdomen soft and not tender.
(viii) No other abnormalities detected.
The plaintiff disclosed that he had been involved in a motor vehicle accident in 1990.
18 That report was contained in the Queen Elizabeth notes (Exhibit P15) and the hospital notes show a very similar picture, save that no further complaint was made of pain in the genitals.
19 The notes in relation to the plaintiff’s back go further.
20 The medical officer records that on examination it was noted that there was "pain to touch at lower lumbar and coccyx" and "superficial lacerations on lumbar spine sensation + + back and around anus."
21 An x-ray of the lumbar spine, coccyx and sacrum disclosed the following:-
"Lumbar spine, coccyx and sacrum: alignment of the lumbar vertebral bodies and anatomical. The inter-vertebral disc spaces are within normal limits. There is no evidence of prevertebral soft tissue swelling. No focal acute bony abnormality or fracture seen."
22 Upon discharge from the Queen Elizabeth Hospital at 7.15 p.m. the plaintiff was provided with a report giving a diagnosis of soft tissue injury and prescribing rest and analgesics, and suggesting that he contact his local medical officer to organise physiotherapy.
23 On the face of those notes the injuries appear to be of a very minor nature, there being little more than soft tissue injury, which might well have been expected to resolve within a comparatively short period of time.
24 However, the plaintiff claims to be suffering from a disabling pain which has prevented him from pursuing his employment as a truck driver from time to time ever since. I have also heard divergent medical opinions.
25 In addition to that I heard evidence from the plaintiff’s former wife, Mrs Walker, and her daughter, Ms George, in which they claimed that the plaintiff had engaged in bizarre conduct which was calculated to worsen the condition in his back. There was also evidence of the plaintiff laying pavers in the garden and carrying out heavy work in the garden at times, which he claimed to be unable to perform, and taking part in a number of activities associated with the showing of dogs bred by Mrs Walker and of caring for, feeding and exercising horses owned by her, all of which was denied by the plaintiff.
26 And so it becomes necessary to discuss those matters and to comment upon my assessment of the reliability of each of the witnesses, based upon what I saw and heard in the course of their giving evidence and, in the light of the evidence as a whole, to say what the plaintiff, upon whom the onus of proof lies, has proved on the balance of probability.
27 I shall deal with a number of topics separately, as they occurred in chronological order.
28 The first relevant event is the fact that the plaintiff sustained certain injuries as a result of a motor vehicle accident in New South Wales on about 5th November 1990. The plaintiff was driving a semi trailer which was owned by him when the vehicle struck a cow on the road. This caused the semi trailer to roll over.
29 The plaintiff said that, amongst the injuries that he suffered, was a pain in the lumbo thoracic area of his back. The medical records of the Europa Clinic, at which he attended, disclosed no such injury. On the contrary, they disclosed tenderness over the lumbo sacral joint. The plaintiff expressly denied that he sustained an injury to his lumbo sacral area of his spine.
30 X-rays taken of the lumbar spine on 21st March 1991 disclose that "the disc spaces appear preserved and no bony trauma is identified". The Europa Clinic notes disclose that Dr Rosa, one of the partners at the clinic, examined the plaintiff on 21st March 1991 and amongst other things found that the accident had resulted in a soft tissue injury to the coccyx and lumbar spine, i.e., a paravertabral injury of a musculo ligamentous nature.
31 In a statement of claim proposed to be filed in the District Court of New South Wales, the plaintiff claimed damages for negligence against the owner of the cow and the drover, alleging that he had sustained the following injuries:-
"PARTICULARS OF INJURIES

The plaintiff sustained the following injuries:-
         (a)     injury to the head;
         (b)     lacerations to the head;
         (c)     headaches and dizziness;
         (d)     laceration to the left arm;
(e)     a deep laceration in the left side of the back which was treated with about 12 sutures;
(f)     injuries to the back and in particular in the left lower back region;
(g)     bruising, both internally and externally;
(h)     shock;
(j)     reactive anxiety and depression;"
32 When asked by Mr Thelning, a psychologist "Were you injured?" he replied "Oh just cuts and abrasions, bruises" and in answer to the further question "nothing serious?", he replied "no".
33 In a letter dated 3rd December 1996 addressed to Mr Macarthy, a solicitor who was then acting for the plaintiff in relation to the 1990 accident, Dr Rosa reported amongst other things:-
"When seen on 19/11/90 these injuries appeared to be healing well. He was also complaining of pain to the lower back. He had grazes and some bruising to the lumbar region of the back and to the associated right paravertebral region. He was tender to the lumbar vertebrae and to the right paravertebral region. Movement was decreased in all directions."
34 For some reason that is none too clear, on his own evidence the plaintiff does not appear to have pursued his claim in New South Wales with any vigour. Indeed he appeared to be vague as to who was his solicitor and I detected a reluctance on his part to go into any great detail about the extent of his injuries, it being his present position that all he wanted was the expenses that he has incurred in pursuing his claim thus far.
35 Indeed, despite the fact that he spent some eight months receiving sickness benefits after the accident, he maintains that he had wholly recovered from all of the effects of that accident long before he sustained the injuries he alleges were caused to him in the accident which is the subject matter of the present action.
36 Seemingly the plaintiff was back at work driving interstate transports, at least by early November 1991, although it appears that he was experiencing pain in the distribution of his right pectoralis major muscle (the muscle across the right side of the chest to the upper right arm).
37 On the evidence as a whole, I accept that the plaintiff had wholly recovered from the 1990 accident, including, as Mr Thelning’s evidence demonstrates, any impossible psychological sequelae, before he was injured by the subject accident on 29th June 1993. (The 1993 accident).
38 Be that as it may, the plaintiff had not forgotten his earlier injury by the time of the 1993 accident, because he expressly mentioned it to the ambulance officer. Moreover, he revived his interest in pressing a claim against the owner of the cow and its drover when he read an article in a publication called "Big Rigs" dated July/August 1993 in which it was reported that a driver of a motor vehicle that collided with a cow in New South Wales was awarded damages against its owner for the injuries that he had sustained as a result of that collision.
39 Since the draft statement of claim, to which I have referred, was exhibited as part of an affidavit apparently sworn in 1994, I infer that the plaintiff, who, on the evidence of Mrs Walker, which I accept, was excited about the prospect of him succeeding on such a claim was actively pursuing his claim in 1993 and 1994. And yet, as I have said, the plaintiff’s evidence is that he has not proceeded further with the claim, even though, as it appears from a letter written by his solicitor in New South Wales to the Europa Clinic and dated 29th November 1996, that at that point in time his action had been listed for hearing.
40 Whilst I can accept that the injuries claimed by him in the statement of claim for the 1990 accident, are, at best, no more than allegations of fact, I am nonetheless left with a feeling of disquiet about the credibility of the plaintiff, in that not only has he gone out of his way to minimise the nature of the injuries that he says he suffered, but also because he now says that the injury to his spine was in the lumbo thoracic region, and not as it appears from the documentary evidence in the lumbo sacral area, which is the area he now claims to have been injured in the 1993 accident. Moreover, notwithstanding the fact that he remembered to tell the ambulance officer that he had previously injured his back when he was taken to the Queen Elizabeth Hospital, he failed to tell Mr Fry, an orthopaedic surgeon, to whom he was referred for a "second opinion" in 1996, about the previous accident. Yet he had travelled over to New South Wales on, or about, three occasions to see the solicitor who was acting for him in relation to his claim for the 1990 accident.
41 The plaintiff, however, was not only vague about the 1990 accident, and his subsequent claim for damages, but he also prevaricated when cross-examined about his physical activities after the 1993 accident. Moreover, I have no hesitation in saying that I was unfavourably impressed by his demeanour.
42 Furthermore, I am not so sure that I can accept his claim that all he wants to do is to be an interstate truck driver.
43 The fact of the matter is that I accept the evidence of Mrs Walker and Ms George to the effect that he had discussed and listed ways of maximising the symptomatology in his back and he also told Ms George that he was doing that because he wanted to use the damages he would get to purchase a home and property in the country on which he could retire and have horses and breed dogs.
44 I shall return to the topic of the plaintiff’s participation in caring for dogs and horses later.
45 On the other hand, after careful consideration of the evidence of Mrs Walker and Ms George, I find them to be more credible that the plaintiff. True it is that Mrs Walker admitted to certain acts of dishonesty, and of harassing the plaintiff over the telephone in the past after their marriage broke up, all of which did her little credit, but, in the long run, having regard to their demeanour when they gave evidence, and the overall consistency of their evidence, the complete denials by the plaintiff of each and every allegation by them, and the failure of the plaintiff to call the plaintiff’s two stepsons, whom he said had performed the various heavy garden activities which Mrs Walker and Ms George alleged were performed by the plaintiff, I have reached the conclusion that the evidence of Mrs Walker and Ms George is to be preferred where it is at variance with that of the plaintiff.
46 I should also add that in reaching my conclusion as to the facts, I bear in mind that the onus rests on the plaintiff to prove his case on the balance of probabilities.
47 During the hearing of this action I heard evidence from four medical practitioners and one psychologist. They were:-
Dr Baratosy, who practices as a general practitioner at the Europa Clinic, through whom the medical records of that clinic were tendered.
Mr Hillier, an orthopaedic surgeon, to whom the plaintiff was referred by Dr Baratosy, for what was in fact a second opinion, having been referred by Dr Baratosy to Mr Gahn, an orthopaedic surgeon, who gave a written report dated 19th December 1993 to Dr Baratosy, but was not called as a witness by the plaintiff.
That report forms part of the Europa Clinic business records.
Mr Fry, an orthopaedic surgeon.
Mr Jose, an orthopaedic surgeon.
Mr Thelning, the principal psychologist at the North Eastern Psychological and Rehabilitation Services.
48 I do not propose to dissect and compare the evidence of each of the medical practitioners and the opinions expressed by each of them in depth and in detail.
49 Rather, I propose to discuss their medical findings upon their examination of the plaintiff in the light of the results of such diagnostic tests carried out and the relevance of such findings of the mechanics involved in the actual accident, in which it is claimed by the plaintiff that he was injured in 1993 and the medical criteria upon which the various opinions were based.
50 It is to be noticed at once that the prime mover was being reversed at a slow speed said, by the plaintiff, who did not see it, nor did he hear it, until he saw the chassis rails go past on either side of him, said that it was moving at a little faster than walking pace.
51 It was then that the cross member struck him at the base of his spine. The top of his body came into contact with the skid plates on the trailer and he was lying flat with the back of his head on the turntable of the prime mover, and his legs were raised up under the trailer.
52 It is probable that the forces acting on his body caused an extension of the spine. That is to say, it caused the spine to arch backwards.
53 As I said earlier, Warnes then stopped the prime mover and drove it forwards. The result was that the plaintiff then fell to the ground landing first on his elbows.
54 As I have already said, the hospital notes disclose only minor soft tissue injuries together with a small laceration on his back.
55 Bearing in mind the forces which operated on the plaintiff’s body when he was struck in the lumbo sacral region from behind resulted in an extension in the spine, it is probable that the ligaments that are external to the facet joint at L5-S1 level were strained. The medical evidence shows that there was no internal damage to the facet joints.
56 Furthermore, extension of the spine would not cause any damage to the L4-L5 and L5-S1 discs, nor did any of the tests undertaken show any damage to the discs save and except age-caused degeneration at those two levels, which, however, remained asymptomatic.
57 As Mr Fry observed, damage may be caused to intervertebral discs by flexion of the spine, i.e. bending forwards but not by extension.
58 The medical evidence shows that the plaintiff suffered from no neurological problems and there is no evidence of any bony injury. Finally, I am satisfied on the medical evidence that merely being squashed, as the plaintiff claimed he was, would not result in any facet joint injury.
59 On the evidence I accept that a sprain to the outer ligaments of the facet joints is commonly encountered in sporting injuries and that recovery from such sprains is achieved in a relatively short period of time.
60 I also accept Mr Fry’s evidence that lower lumbar pain is commonly experienced by long distance truck drivers, and that quite probably the 1990 accident was the initial cause of weakening the lower lumbar ligaments of the facet joints. Whatever may have been the extent of the injuries resulting from the 1990 accident, the plaintiff, as I have said, was in receipt of sickness benefits for some eight months afterwards.
61 Furthermore, inappropriate activity will disturb already vulnerable ligaments at the facet joints. And there is evidence of that to which I shall turn later in these reasons.
62 After his discharge from the Queen Elizabeth Hospital on 23rd June 1993 the plaintiff returned home, took a bath and went to bed. He felt sore. However he was in no hurry to consult his local doctor, Dr Baratosy.
63 On the following day he drove Mrs Walker to the property on which they were agisting their horses, fed, watered and exercised them and carried out the usual daily tasks in relation to them, such as mucking out the stables. The plaintiff denied having done that and claimed that he consulted Dr Baratosy on 24th June 1993. I do not believe him. Dr Baratosy’s notes show quite clearly that he was first consulted on 2nd July 1993.
64 About three or four days later the plaintiff commenced laying paving bricks in the garden of his home.
65 After fourteen days off work on workers’ compensation he returned to work, but complained of a flare up of pain in his lower back and returned on workers’ compensation.
66 In December 1993 Dr Baratosy referred the plaintiff to Mr Gahn, an orthopaedic surgeon.
67 Mr Gahn provided a written report dated 19th December 1993 to Dr Baratosy and, so far as it is relevant, it reads as follows:-
"He was initially off work for some two weeks. He has been having physiotherapy and has improved to some extent but now is left with residual lower lumbar back ache. He has no radiation of pain down his legs.
Examination reveals a tall-built male. He has reasonably good lumbar spine flexion, up to the knee level and full lumbar spine extension. I detect no neurological deficits in the lower limbs. There is no evidence of sciatica or femoratica. He has especially good lumbar spine control.
I reviewed the lumbar spine’s CAT scan which at all levels were normal. I am unable to detect any specific lumbar spine pathology and I have assured him that he should make a complete recovery.
Since physiotherapy is not helping him much further, I now advise him to undertake a regular swimming programme."
68 That, in my opinion, is a most telling report, not merely because it shows that the plaintiff had made good progress towards recovery from whatever injuries he has sustained in the accident, but also that he had full lumbar spine extension.
69 I infer from the later evidence of Mr Fry and Mr Jose that if the accident did cause a sprain to the ligaments of the lower lumbar facet joints, then, by that stage, he must have recovered from the symptoms of that injury.
70 I also infer that whatever further problems the plaintiff may have suffered with those ligaments was caused by some subsequent inappropriate activity.
71 If the plaintiff had a weakened back ligamenture which was prone to further injury, and I think that he did have such a condition which may well have pre-dated the 1993 accident, then further activities undertaken by the plaintiff, which I shall describe later, undoubtedly caused separate and distinct "flare-ups."
72 Some of those activities related to gardening and refurbishing the garden, both at the back and front. Some related to watering, feeding and exercising the horses owned by Mrs Walker. Some related to showing the dogs bred by Mrs Walker almost every weekend. And some were bizarre activities deliberately undertaken by the plaintiff for the purpose of maximising the symptoms in his back, with a view to increasing any damages that he hoped he would be awarded in these proceedings.
73 The plaintiff denied all these allegations, claiming, amongst other things, that Mrs Walker’s two sons performed certain specific tasks involved in the refurbishment of the garden.
74 Indeed, he went further, saying that he was incapable physically of performing those tasks. Again I do not believe him. Nor, as I have said earlier, were either of the two sons called to give evidence of the part, if any, that they played in the performance of those tasks.
75 The following tasks were performed either exclusively by the plaintiff or by him in conjunction with Ms George and sometimes with one of the sons.

Clearing a garden bed in the front garden, including grubbing out well established shrubs.
Levelling the garden.
Laying pavers.
Breaking up a concrete path with a sledge hammer and loading the concrete pieces into the trailer, transporting it to the dump and unloading it.
Building a pergola.
Erecting a fence on the verandah.
Building a shade house.
Replacing a heavy metal door on the tack shed at the horse stables.
Carrying bales of hay from the trailer to the tack shed.
Regularly feeding and watering horses.
Lunging horses - i.e. attaching a rope to the halter of the horse and making the horse trot round in a circle in preparation (I understand) for them to train as trotting horses.
and
Carrying wooden railway sleepers from the front to the rear garden.
76 The plaintiff also continued to muck out the stables, feed and water and exercise the horses and took an active part in showing the dogs, which included erecting a tent and loading and unloading the show trolley into and from the car.
77 In addition to that the plaintiff also used exercise weights belonging to one of his stepsons in an inappropriate way and was seen by Mrs Walker and Ms George to jump into the air clutching his knees to his chest and landing on his buttocks on the lawn in the back garden, each of which actions I find to have been calculated by him to maximise the symptoms of pain from which he claimed to be suffering in his lower lumbar area, and thus, increase the measure of damages he hoped to achieve by instituting the present proceedings.
78 The inference which, in my view, may reasonably be drawn from the plaintiff’s bizarre behaviour, is that the plaintiff was no longer experiencing any pain or discomfort in the lower lumbar region of his back. Such an inference also finds support from the work that he did making the home improvements to which I have referred, and in connection with the horses and dogs. And that was work which he not only denied having performed, but was work which, in my opinion, he falsely said he was incapable of performing.
79 The plaintiff complained of two further incidents in which he experienced pain in his lower back. The first was when he lifted an A-frame on a trailer at Port Augusta. The second was when he unloaded bales of wool from a trailer in Melbourne.
80 In both cases they were brought about by flexion and not extension of the spine, in which case I consider that there can be no connection with those movements and the facet joints in his lumbo sacral spine.
81 The plaintiff also consulted Mr Thelning. His first visit was on 20th April 1995 and the last was on 19th February 1997 to enable Mr Thelning to prepare for giving evidence in this action.
82 In all the plaintiff attended on seventeen occasions. The first six were of his own accord. The next ten were by referral from his general medical practitioner.
83 Mr Thelning reached the opinion that the plaintiff was suffering from a reactive depression, the genesis of which lay in the subject accident.
84 Mr Thelning said what he needed was a "magic bullet" to stop the pain and to get him back driving trucks. Mr Thelning said that the plaintiff could not see much beyond that.
85 Mr Thelning took the view that as soon as the plaintiff was able to make decisions for the future his depression would fade and his sense of helplessness would fade. Once the plaintiff was able to resume his lifestyle these symptoms would go.
86 Mr Thelning noted that the plaintiff was distressed when Mrs Walker refused to entertain his father and sister when they came down from Darwin. He said that the only thing that the two of them had in common were the dogs and horses, but that the plaintiff had expressed the view that he was being exploited because he had to do a great deal of the caring for those animals, whereas Mrs Walker’s three children did nothing.
87 That, it seems to me, is completely contrary to the plaintiff’s evidence that the sons did all the heavy labouring work involved in refurbishing the garden.
88 Be that as it may, Mr Thelning observed that, after the plaintiff separated from Mrs Walker in December 1995 and went to live with a woman who was much younger and closer to his age and, seemingly, as a result of that was "feeling good already." By January 1996 the plaintiff told Mr Thelning that his separation from his wife had been resolved and he was feeling better every day.
89 Notwithstanding the "losses" such as the break down of the plaintiff’s marriage, which might well have caused what Mr Thelning called a "depression", Mr Thelning remained adamant that the reactive depression that he diagnosed was caused by the 1993 accident. His reason for saying that was that that, in his opinion, was the dominant factor. That, it seems to me, runs contrary to the apparent recovery from the depression by the plaintiff once his separation from Mrs Walker had been resolved.
90 Moreover, Mr Thelning appeared to resent any suggestion that he might be wrong, and seemed disinclined to accept any basis of fact other than the history that he took from the plaintiff, upon which he had formed his opinion.
91 Whilst I can accept that the circumstances in which the accident occurred in 1993 would have been a frightening experience for the plaintiff, bearing in mind that he has purposely sought to worsen any condition in his back to enable him to support his present claim, I find myself unable to share Mr Thelning’s view. In short, I am not satisfied on the balance of probability, that any psychological deficit from which the plaintiff may be suffering was caused by the 1993 accident.
92 In all the circumstances I am satisfied that the plaintiff had fully recovered from the injury caused to him in the 1993 accident by 31st December 1993.
93 Pursuant to the provisions of Section 35 of the Wrongs Act 1936 I assign the numeral five on a scale running from zero to sixty for the purpose of calculating the plaintiff’s non-economic loss. Upon my calculation, which is based upon a multiplier of $1,390, the value for his non-economic loss is $6,950.
94 As the evidence stands, I can see no reason for attributing any contributory negligence to the plaintiff.
95 I propose to hear the parties on the appropriate amounts for economic loss and medical and like expenses to be based upon my finding that the plaintiff had fully recovered by 31st December 1993, together with such interest as may be payable.
96 Judgment for the plaintiff in the sum of $17,092.87. No order as to costs.

[1999] SADC 21

17 March 1999