Woodcock v Woodcock
[2000] QSC 153
•31 May 2000
SUPREME COURT OF QUEENSLAND
File No 5670 of 1996
BETWEEN:
JAIME WOODCOCK
Plaintiff
AND:
JOHN ALBERT WOODCOCK
Defendant
MOYNIHAN J – REASONS FOR JUDGMENT
DELIVERED ON: | 31 May 2000 |
HEARING DATES: | 16 – 19 November 1999 |
ORDER: | Judgment for the plaintiff against the defendant for $32 549.20 |
CATCHWORDS: | NEGLIGENCE – Causation – Damages – Road accidents – Plaintiff/passenger injured whilst travelling in a motor vehicle – whether injury occurred or aggravated as a result of motor vehicle accident |
COUNSEL: | Mr D North SC with Mr R Lilley for the plaintiff |
SOLICITORS: | Murphy Schmidt for the plaintiff |
On 18 August 1992 the plaintiff was a passenger in a vehicle when the driver lost control. The vehicle rolled over a number of times and the plaintiff was injured.
Liability is not in issue but damages are. The crucial aspect of the plaintiff’s damages case is that a spinal fusion operation which he underwent on 27 January 1994 was necessary because of the 18 August 1992 accident and that as a consequence of the operation he has developed disabling neuropathic pain. It is impossible not to feel sympathy for the plaintiff whose life has been devastated by constant pain with little prospect of relief.
The plaintiff was born on 28 June 1965. He left school in 1980 having commenced, but not completed, year eleven. He was employed as a storeman, by his father who was a cleaning contractor, by a jewellery supplier and by Freedom Furniture.
In 1982 while employed by Freedom, the plaintiff was involved in an incident in which he was unexpectedly left to bear the whole of the weight of a roll of carpet that others had been assisting him to carry and developed a pain in his back which he described as a “gradual thing from then on”.
On about 1984 the plaintiff commenced working in a bookshop. The work involved ordering books, unpacking them, putting them into the stock area or shelving them, keeping the shelves tidy, selling to customers and the associated paperwork. The plaintiff enjoyed being a book seller, was competent in the work and subject to the considerations canvassed in these reasons, that was where his future lay.
The plaintiff’s back pain progressively worsened and he sought medical attention. An x-ray report of 3 June 1985 refers to anterior compression at the L1 level of the spine consistent with a minor compression fracture and spondylolisthesis, a condition unrelated to trauma, at the lumbo-sacral junction. The spondylolisthesis was the major cause of the plaintiff’s pain.
On 27 February 1986 the plaintiff underwent a posterolateral fusion of L5/S1 using bone taken from his left iliac chest. Although it later emerged that bony fusion was not effected, a fibrous union stabilised the joint and reduced his pain although it was likely that the plaintiff would have always been vulnerable to pain associated with an unusual degree of bending, lifting, twisting and similar activities.
The plaintiff embarked on physiotherapy and on 26 August 1986, apparently the occasion of his last follow up visit, he had ceased to use his back brace but was complaining of some pain. He continued to improve. A year after the operation his back had improved considerably compared to what it had been prior to the operation. The plaintiff continued to work at the bookshop. As his condition improved he extended his activities until by and large they were back to the level they had been at before the onset of the pain which led to the February 1986 operation.
In 1988 the plaintiff ceased to work at the bookshop apparently for reasons unrelated to his back. He worked for his father doing a full round of office cleaning activities until May 1989. From May 1989 to May 1990 the plaintiff and his sister travelled actively as backpackers in the United Kingdom and Europe. The plaintiff’s evidence, which I accept, is that his back did not inhibit him in these activities.
The plaintiff is a committed Jehovah’s Witness. On his return to Australia he planned to devote 90 hours a month to unpaid church work and to support himself by part-time work. As I understand it, he planned to do this until he married and family responsibilities obliged him to take up paid full-time employment to support a family.
The plaintiff, having returned to Australia, rejected offers of full-time bookshop employment because that would have inhibited his work for the church. He sought part-time work. He did casual cleaning work for his father. He and his sister commenced and developed a business called “Woody’s Creations” manufacturing fridge magnets which they sold at the Riverside Markets.
On 18 August 1992 while on a family holiday, the plaintiff was involved in the accident giving rise to this action near Alice Springs. He was travelling as a passenger in a vehicle driven by his father who lost control of the vehicle. After a series of violent movements, it appears it rolled a number of times, the vehicle came to rest on its side. The plaintiff, who was wearing a lap sash seat belt, was then looking up at the left hand side door which was above his head. His chest was up against the side of the seat that he had been occupying and the anchor point of his seat belt was pressing into his back. Another passenger had been thrown onto him.
In order to establish a connection between this incident and the operation of 27 January 1994, it was accepted as essential that the plaintiff suffered low back pain immediately or a short time after this accident and for there to be a continuum of such pain leading up to the operation.
The plaintiff was attended to by ambulance officers at the scene and then taken to the Alice Springs Hospital. The plaintiff’s evidence is that he was aware of the onset of lower back pain following the accident. The ambulance report makes no mention of it. At the hospital the plaintiff was diagnosed as having suffered soft tissue injury but was not admitted. He is recorded as complaining of pain in the line of the seat belt over his anterior chest wall and in his mid-thoracic spine. He seems to believe that a slight compression fracture was apparent but the x-rays of his chest, ribs and thoracic spine taken at the time do not support that conclusion. The plaintiff has probably confused this occasion with 3 June 1985, when an x-ray report referred to a minor compression fracture.
The plaintiff’s sister had been admitted to hospital as a consequence of the injuries she suffered in the accident. The family remained in Alice Springs for a week or so until she was discharged. During the return journey to Brisbane the plaintiff’s aching “started to ease” but he was unable to be of much assistance with the driving because his “whole back hurt”.
On 29 August 1992, the plaintiff attended at the Royal Brisbane Hospital. He is recorded as complaining of pain in his chest, back and side and of right parasternal pain with a dull ache and shooting pains on movement and coughing. I am satisfied the pain which is recorded is what led to his attendance. The plaintiff reported on that occasion that when he bent over following the 18 August accident he had a shooting pain in his groin. This is consistent with lumbo-sacral injury but there is no record of complaint of lower back pain. On examination the plaintiff was tender in the rib area. He was not admitted but advised to use heat and take analgesics.
The plaintiff’s solicitors arranged for him to see Dr Michael Gallagher, an orthopaedic specialist, for a medico legal report. Dr Gallagher reported on 17 November 1992. He was unable to give evidence. His report was admitted into evidence under s.91 of the Evidence Act 1977. It records x-rays confirming grade 2 spondylolisthesis at L5/S1 but showing no evidence of trauma related injury. Dr Gallagher’s report records the plaintiff’s initial symptoms as generalised aches and pains involving the neck and back, but particularly the front of the chest and the lower left rib cage. The plaintiff’s complaints included that he still got occasional chest pain, particularly if he bent over, but that it was greatly improved and was continuing to improve. The left lower rib cage had completely recovered, the discomfort was momentary, mainly in the centre upper aspect. It was reported that the middle of the plaintiff’s back ached, although he got aches “right up to his occiput”. This was worse when he changed position. He had a deal of interscapular discomfort which was improving. The plaintiff complained of headaches. On examination Dr Gallagher recorded a general tenderness in the plaintiff’s back, most marked at the upper lumbar region and thoraco-lumbar junction, less so at the lumbo-sacral region. In Dr Gallagher’s opinion there was no aggravation of the pre-existing spondylolisthesis and the plaintiff was unlikely to have any ongoing disability.
The plaintiff went to Moranbah in January 1993 to do church work. He anticipated being there until October and then attending a church training school before doing two or more years church work. After that he contemplated marriage and a further period of church work with his wife before settling down to have and support a family. The plaintiff in fact married in June 1994, there are as yet no children.
The plaintiff’s evidence, supported by that of members of his family, is that when it came to moving to Moranbah he was inhibited by back pain, that he needed assistance in packing, unpacking and other activities associated with the move.
The church work in Moranbah involved 90 hours a month – ideally roughly half of that time was to be spent approaching people door to door to see if they were interested in the church and half calling back on people who had indicated that they were interested. The plaintiff’s evidence is that he found the door to door work difficult because of pain in his back and he soon cut down on it.
The co-minister, Paul Dougall, with whom the plaintiff initially lived and with whom he worked in Moranbah, described him as troubled by his back from the time of his arrival. He gave evidence that the plaintiff found the door to door work difficult. He would often lie down on the floor at home apparently in severe pain. Mr Dougall did not regard the plaintiff as a complaining sort of person but told of his complaining of pain in his lower back, stooping, clasping his lower back. His evidence supports evidence from the plaintiff that he was unable to do many routine domestic tasks and needed assistance and support from members of the church community in Moranbah - for example they supplied meals, did his washing and the like.
The plaintiff sought part time work to support himself. He tried a paper delivery run but his evidence was that he was unable to continue with the work on account of his back. Mr Dougall had built up a small window cleaning business in Mackay to generate some income to support himself during his ministry. This involved about six hours work once a week using a squeegee, a washer, a bucket and a pole to wash standard shop fronts. Mr Dougall was to attend a church training course for ten weeks and arranged for the plaintiff to do the work while he was away.
While the plaintiff was cleaning a large high window, he started to get “aching and a tired feeling” in his back and arms such as he had previously experienced “when he had over exerted himself”, on this occasion it happened “earlier and for longer”. Pain started going to both sides of the plaintiff’s buttocks and down his legs and was getting sharper. He continued with his cleaning. By the time he had finished his cleaning the plaintiff was in tears because of the pain and could not drive to Moranbah as he had planned but stayed overnight with friends.
The date of this incident is not clear but a few days after it on 3 March 1993, the plaintiff attended the Moranbah Hospital because of his pain and saw Dr Broad. He gave a history of a previous back injury with an L5/S1 spinal fusion and reported that while cleaning windows on the weekend he suffered an onset of increased pain. He was diagnosed as likely to have suffered muscular-ligament strain and was prescribed rest and pain killers. On 9 March he reported some improvement with dull, persisting ache. There were no neurological signs and arrangements were made for him to commence physiotherapy which he did on 10 March giving a history of back pain as his main problem. He continued to received physiotherapy until at least April.
On 30 March the plaintiff reported pain worse than prior to the window cleaning incident and minimal improvement from physiotherapy. An x-ray report of 31 March noted apparent spinal fusion, a slight narrowing of the lumbo-sacral disc with the remaining discs preserved. The sacroiliac joint was said to be normal.
In a report of 15 February 1994, Dr Broad noted a history that the plaintiff had had a reasonable relief from back pain until a motor accident in August 1992, which again exacerbated his pain but it settled. Dr Broad thought he was told this in the context of asking the plaintiff whether he had previously been x-rayed.
The plaintiff continued to be troubled by pain and came to Brisbane apparently to seek medical advice. On 20 April 1993, he attended the emergency department of the Royal Brisbane Hospital where he saw Dr Scruton. Dr Scruton had no recollection of seeing the plaintiff and was dependant on her contemporaneous clinical notes. These referred to the 1986 fusion and to the development of lower back pain while cleaning windows “which became worse”. The plaintiff was complaining of pain in his left buttock, paraesthesia of the left leg and pain in the left foot. X-rays showed a narrowing and slip of L5 on S1. Examination showed a decreased range of lumbo-sacral movement. Dr Scruton advised bed rest and drugs and arranged a referral to Dr Ryan who had carried out the 27 February 1986 L5/S1 fusion. Dr Scruton did not record any mention of motor vehicle accident involvement.
For the purposes of his referral to Dr Ryan, the plaintiff completed a spinal assessment form, probably on 4 May 1993. In this he said that his worst pain was in his lower back and buttocks. He gave August 1992/March 1993 as the date of onset of the pain and a single vehicle accident as the cause. The plaintiff estimated that 90 percent of the pain was in his back and 10 percent in the legs. He also indicated that he had some pain in the left arm. The form has notes by Dr Ryan that there was thoracic pain which had never come good and the onset of low back pain after the window cleaning incident.
The plaintiff’s general practitioner referred him to Dr Gillett another orthopaedic surgeon who saw him on 11 and 21 May 1993. He gave Dr Gillett a history of the motor vehicle accident and that he had suffered an injury in the region of his mid-thoracic and lumbar spine, of going to the Royal Brisbane Hospital in 1992 complaining of pain in his back and the left side of chest and reported he had improved with the passage of time. He reported the window cleaning incident and that the pain got worse and he had a problem in his back and legs. At the time of examination the plaintiff had pain in his left leg at the knee and low back and left buttock pain together with pain in the mid-lumbar area and the interscapular area.
Dr Gillett concluded that the plaintiff had suffered a musculo-ligamentous type injury in the motor vehicle accident and that he may have aggravated his pre-existing spondylolisthesis. Dr Gillett thought that his main symptoms related to the musculo-ligamentous injury which occurred above the region of the fusion. Dr Gillett advised ongoing treatment in the form of exercise and thought the position would improve with the passage of time. If the symptoms deteriorated the plaintiff could attend on Dr Ryan who had suggested a repeat of the fusion operation. Dr Gillett thought that this would not be the case since he believed the fusion had never been solid as indicated and that the bone scan indicated the area had not been injured in the window cleaning episode. He thought surgical intervention was not required and that 18 months after the injury there would be about five percent permanent partial residual disability.
In a report of 2 November 1993, Dr Ryan referred to the 1986 operation and that the plaintiff was apparently doing well until the motor vehicle accident after which he reported thoraco-lumbar pain and noted that while he was cleaning some windows he developed shoulder and leg pain which had persisted. He thought the plaintiff’s symptoms were due to spondylolisthesis coupled with the non union of the bone graft at the lumbo-sacral joint with a fibrous union possibly aggravated by the window cleaning.
On 27 January 1994, Dr Ryan operated on the plaintiff’s spine. He found L5/S1 pseudarthrosis and used a pedicle screw to effect fusion. The purpose of the operation was to fuse the L5/S1 level which, the previous operation having failed to effect a bony union had become mobile, so relieving the plaintiff’s back pain.
Prior to the operation the plaintiff was suffering pain in his lower back, left buttock and down his left leg, all the way to the toes. It appears that for a time the operation was effective in alleviating the pain the plaintiff had been suffering prior to the accident. When the plaintiff regained consciousness, however, he had a very different pain in his right leg “not like a dull ache…(but) like an electric shock shooting down my leg”. This pain which is neurological in origin is a consequence of the operation of 27 January 1994 and the plaintiff was worse off as a consequence of that operation than he had been before it.
The plaintiff continued to suffer the pain just described. It came to be thought this was due to an L5 nerve root compression. On 1 December 1995 Dr Ryan operated on the plaintiff’s back. He confirmed right L5 nerve pressure and effected a right sided laminectomy at the L3/4, 4/5, 5/S1, S1/S2 level. The purpose of the operation was to relieve nerve pressure which was a cause of the onset of the pain after the 27 January 1994 operation.
The plaintiff continues to be plagued by pain. Although the evidence is not altogether clear, it seems there this involves reoccurrence of the pain the 27 January operation was designed to relieve but the pain is largely neuropathic and a consequence of that operation. He was admitted under the Pain Clinic at Royal Brisbane Hospital on 24 July 1995 for a multi-disciplinary approach to pain management. He had been commenced on a drug regime for his neuropathic right leg pain and received a coudal epidural steroid injection in an attempt to deal with the pain. This provided only temporary relief. The plaintiff was seen by a physiotherapist, occupational therapist and psychiatrist, given an exercise program, taught relaxation techniques and commenced on oral methadone. He was discharged from hospital on 8 August 1995 and reviewed at the Outpatient’s Clinic on 22 September 1995 and reported that his back pain had worsened to its former level but that the burning neuropathic pain had improved.
By early 1997 the plaintiff had decided to move to Wollongong and was provided with a letter by the Royal Brisbane Hospital Pain Clinic. This recorded the 1986 operation, the 1992 accident with subsequent to that, a slow deterioration of bilateral anterior thigh pain and the January 1994 and 1995 operations. It recorded a drug regime including oral methadone.
The plaintiff was first seen at the Port Kembla Pain Clinic on 23 September 1997. In his history he attributed a reoccurrence of low back and leg pain to the 1992 accident and a further aggravation with anterior bilateral thigh pain as a consequence of the window cleaning incident. He was described as having a reasonable sitting tolerance with a walking limitation of 30 metres. He was diagnosed as having predominantly central neuropathic pain. The plaintiff’s pain continues to be managed by the Illawarra Pain Management Service. His prognosis for significant functional recovery is poor.
I am not persuaded that the evidence establishes the onset and continuum of the development of lower back pain following the 18 August 1992 accident necessary to establish a causal connection between that accident and the operation of 27 January 1994.
It seems clear that the window cleaning incident precipated the onset of pain. This was probably a consequence of the destabilisation of the non bony L5/S1 fusion. Relevantly, for present purposes, there is a marked contrast between the aftermath of the 1992 accident and the 1993 window cleaning incident. That incident led to the plaintiff immediately seeking medical attention and started the train of events which led to the 1994 operation. The Alice Springs records, the presentation at Royal Brisbane Hospital on 29 August 1992 and Dr Gallagher’s examination in November 1992 are not characterised by reports of the onset and development of lower back pain of the kind necessary to establish a connection between the 1992 accident and the 1994 operation. Absent evidence from the person who prepared it, the “stick drawing” in the Alice Springs Hospital records, in my view, does no more than provide a basis for speculation. It is true that the shooting pain in the left groin, referred to in the Royal Brisbane Hospital records for 29 August 1992, is consistent with or explicable by lower back injury but in the context of the whole of the evidence it is by no means conclusive. Doctor Gallagher’s evidence does not support the necessary connection between accident and operation and nor does Dr Ryan’s.
I mentioned earlier that in a report of 16 June 1993, Dr Gillett expressed a view that the 18 August 1992 accident did not affect the lumbo-sacral spondylolisthesis but produced a musculo-ligamentis injury at a higher level. In a letter of 6 January 1995, in answer to specific questions from the plaintiff’s solicitors, he said that the plaintiff’s back would have remained asymptomatic had the accident not occurred.
Dr Gillett subsequently changed his original view that the fusion had not been disrupted by the accident. He said this was because the 27 January 1994 operation effected a reduction of the pre-operation symptoms suggesting that “the fusion had in fact been disrupted because the operation was successful in reducing those symptoms”. I am not persuaded by the evidence that the operation was successful in reducing the pre-operation symptoms is as conclusive as Dr Gillett’s view suggests, particularly in the longer term.
In any event, the fact remains that the evidence does not sustain a connection between the 1992 accident and the onset and development of lower back pain necessary to establish a connection between it and the 1994 operation. Doctor Gillett, understandably, did his best for the plaintiff but his view that there was a connection is, in my opinion, no more than a hypothesis which is not sustained by evidence. It well may be that the forces to which the plaintiff was subjected in the 1992 accident were greater than those involved in the window cleaning incident. The effect of the latter was immediate. There is no satisfactory explanation for absence of the history of onset and progression necessary to connect accident and operation. Doctor Gillett suggests, for example, that the low back pain may have been masked by other pain but the plaintiff’s evidence was to the effect he had low back pain from the beginning.
I have mentioned the Alice Springs records and Dr Gallagher’s report. Neither Dr Broad or Dr Scruton, who saw the plaintiff after the window cleaning incident, recorded the motor vehicle accident and the onset and development of pain in a way to be expected if that accident featured in the plaintiff’s history as the precipitating cause of the 1994 operation. I have earlier mentioned the context in which Dr Broad recorded mention of the accident and Dr Scruton did not record any mention of it. An undated referral by Dr Mitchell, but apparently given while the plaintiff was residing at Moranbah, for him to see Dr Ryan in 1993 refers to low back pain with radiation down the leg associated with parathesia for “the past 6/52”.
I earlier mentioned Dr Gillett’s views. He seems to have first postulated a connection between the accident and the 1994 operation in a report to the plaintiff’s solicitors of 10 July 1995. He says that after the accident the plaintiff’s initial symptoms improved and then plateaued “with ongoing problems relating to the spine and that he was unable to lift and bend”. The window cleaning episode certainly then produced the severe symptoms. He offered the view that had the plaintiff not had the 18 August 1992 accident it was likely that his back would have remained as it was.
I accept that the plaintiff, the members of his family who gave evidence and Mr Dougall are essentially honest witnesses. They have come to believe the account they gave. I do not, however, accept their evidence particularly as to the nature and extent of the plaintiff’s pain and disability prior to the March 1993 window cleaning incident, as reliable. I think the evidence of the family members and Mr Dougall is a reconstruction clouded by a recollection of the plaintiff’s condition after the window cleaning incident. As a consequence of that incident, the plaintiff sought medical attention soon after. If his pain and disability prior to it was as the evidence would suggest, it is curious that he did not seek medical attention earlier and surprising that Mr Dougall asked him to undertake the cleaning work. Indeed, if the plaintiff’s condition was as this evidence suggests it is unlikely that he was fit to undertake the work he went to Moranbah to do.
The plaintiff’s evidence is under the same cloud exacerbated by his chronic pain, his drug regime and the absence of the prospect of relief. The plaintiff acknowledged to Dr Grant he had difficulties with memory. I mentioned his confusion about the Alice Springs x-rays. As I have indicated, I do not accept that he attended at Royal Brisbane Hospital in August 1992 to obtain x-rays.
On the view I take of the matter, the plaintiff’s damages fall to be assessed on the basis that he has failed to establish a connection between the August 1992 accident and the January 1994 operation. They are to be assessed on the basis that he suffered soft tissue injury of the kind referred to in the Alice Springs Hospital reports, the 29 August 1992 attendance at the Royal Brisbane Hospital and Dr Michael Gallagher’s and Dr Gillett’s first assessment. It will be appreciated of the position as at 17 November 1992, the plaintiff not then completely recovered but Dr Gallagher thought he was unlikely to have any ongoing disability - a view consistent with Dr Gillett’s earlier view. Understandably, given the way in which the case was conducted, the evidence is sparce as to when the plaintiff would have recovered from the consequences of the August 1992 accident. In fact the plaintiff went to Moranbah in January 1993 and that can be regarded as something of a guide. The plaintiff’s income before tax for the 1992/93 year was $6,476, for 1991/92 - $4,013 and for 1990/91 - $1,204. I will therefore access his economic loss on the basis he would have earned at a comparable rate for about six months from August 1992 but for his accident. He also received some assistance from his mother to do things he would otherwise have been able to do for himself during the early part of the period in particular.
The considerations being those I have referred to, I assess the plaintiff’s damages as follows:-
(1) Pain, suffering and loss of amenities $25,000.00
(2) Interest on $15,000 2,200.00
(3) Special damages 789.20
(4) Interest 290.00
(5) Economic loss 3,000.00
(6) Interest 270.00
(7) Care $ 1,000.00
TOTAL $32,549.20
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