De Gelder v Rodger

District Court of NSW|2012-08-17|Before: Mr P

Table of Contents Nature of case - Interim findings [1] - [2] Need for interim findings [3] - [5] Causation issue underpinning referral to MAS [6] - [8] Delay in finalising the proceedings - the MAC Act scheme [9] - [11] Justification for referral back for further MAS assessment [12] - [15] Matters for consideration in interim findings [16] - [21] Credit [22] - [24] Facts underpinning the causation issue [25] - [52] Plaintiff's factual account [26] - [33] Defendant's factual account 34] - [41] Interim findings concerning the events of the collision [42] - [52] Injuries as initially appreciated by plaintiff [53] - [55] Prior injuries [56] Pre-existing osteoporosis of plaintiff's thoracic spine [57] No treatment during first three months after accident [58] Episode of low back pain on 30 November 2005 [59] Chiropractic treatment after 30 November 2005 episode [60] - [61] Disabilities [62] - [65] Pre-accident employment [66] - [69] Post-accident employment [70] - [74] Medical assessments of plaintiff [75] - [171] Pre-accident medical assessments of plaintiff [76] - [78] Post-accident medical and allied consultations [79] - [172] Medical Assessment Certificates [173] - [218] Dr Ostinga - WorkCover Certificate [178] - [179] Dr Vickery - MAS Certificate [180] - [181] Dr Graham - MAS Certificate [182] - [187] MAS Review Panel: Drs Gibson, Selby-Brown, Fearnside [188] - [197] Material provided by Dr Maxwell [198] - [207] Dr Best - MAS Certificate [208] - [218] Consideration of oral evidence from medical experts [219] - [257] Dr Bowers [220] - [228] Dr Harvey-Sutton [229] - [237] Dr Preston [238] - [257] Interim conclusions on cause of thoracic fractures [258] - [285] Disposition [286] Future re-listing of the proceedings [287] - [288] Costs [289] Orders [290]

Nature of case - Interim findings 1The plaintiff, Adam De Gelder, was injured in a motor vehicle accident that occurred at about 6.00pm on Thursday 24 August 2005. At that time the plaintiff's stationary vehicle was forcibly struck from behind by a vehicle being driven by the defendant, James Rodger, on the Pennant Hills Road exit ramp of the M2 Motorway, northwest of Sydney. 2In these proceedings the plaintiff claims damages for the injuries he sustained in that accident. Those injuries were principally to the plaintiff's neck, thoracic and lumbar spines. Breach of duty of care has been admitted by the defendant. The remaining damages issues must be determined under the scheme provided by the Motor Accidents Compensation Act 1999 ["MAC Act"].

Need for interim findings 3A need for these interim reasons has arisen because the plaintiff has made a compelling case for an adjournment of the hearing of the present proceedings so that the question of the nature and extent of the plaintiff's injuries may yet again be considered by the Medical Assessment Service ["MAS"] pursuant to s 62(1)(b) of the MAC Act. The plaintiff has invoked this procedural step as he wishes to have incorporated into the ultimate assessment of his damages, an award of damages for non-economic loss. 4Absent the issue of a further MAS certificate providing a Whole Person Impairment ["WPI"] assessment exceeding 10 per cent, which is the current position, the plaintiff is disentitled to damages for non-economic loss. That position has prevailed because the endpoint of the MAS process determined that the claimed fractures identified in the plaintiff's thoracic spine were not occasioned as a result of the accident. The plaintiff strongly disputed that conclusion. 5The case has proceeded over 12 hearing days to the stage of completion of evidence: May 21, 22, 23, 24, 25, 28, June 20, August 13, 14, 15, 16 and 17, 2012.

Causation issue underpinning referral to MAS 6The pivotal matter at issue in the proceedings is the question of whether the several compression fractures detected in the plaintiff's thoracic spine by CT scans taken on 25 September 2006, were in fact caused by the subject accident. Those CT scans were taken some 17 months after the accident. A complicating feature for the resolution of that causation question is the detected presence of osteoporosis in the plaintiff's thoracic spine at the time those CT scans were taken. These matters are at the centre of a medical controversy on the issue of causation. 7An aspect of the damages consequences of that causation issue cannot be finally determined at the present stage of these proceedings because the plaintiff does not have the benefit of a WPI certificate in excess of 10 per cent, which is why the plaintiff wishes to have the matter referred back for a further MAS assessment. The justification for referral back for a further MAS assessment is that additional information has become available that is capable of having a material effect on the outcome of the most recent MAS assessment. 8The procedure presently invoked by the plaintiff is unlike the position that would have ordinarily prevailed at common law, where the causation question would otherwise have been determined relatively quickly, without the parties having to first proceed through the further statutory MAS assessment processes, including possible judicial reviews and appeals concerning such procedures, as has occurred in the past in this case, in which the parties have variously sought to assert and defend their rights and entitlements arising under the MAC Act scheme.

Delay in finalising the proceedings - the MAC Act scheme 9In this case, the cumulative processes described in the preceding paragraph have resulted in the parties incurring considerable delay, inconvenience and expense over a number of years: De Gelder v Motor Accidents Authority of NSW [2009] NSWSC 1173; Rodger v De Gelder & Anor [2011] NSWCA 97; Rodger v De Gelder & Anor (No 2) [2011] NSWCA 235; Rodger v De Gelder [2012] NSWCA 167. 10The plaintiff understandably complains, with some considerable force, that the cumulative administrative delays and expense that have been incurred in the course of the progress of his claim under the MAC Act scheme, have resulted in him becoming the victim of injustice due to the delay in finalising his claim. 11Unfortunately, the powers provided by s 56 of the Civil Procedure Act 2005, which mandate that courts make orders pursuant to the Uniform Civil Procedure Rules 2005 to facilitate a just, quick and cheap resolution of proceedings, do not also extend to the making of orders to the same effect during the period claims such as this must proceed along the administrative pathways that are required under the MAC Act scheme. The parties now face what is understood to be many months of anticipated delay in the finalisation of a further MAS assessment before the matter can be re-listed for further argument and finalisation of this litigation.

Justification for referral back to MAS for further assessment 12During his opening address on the first day of the case, on behalf of the plaintiff, Mr Semmler QC foreshadowed that the plaintiff would be seeking an order for referral for a further medical assessment under the scheme of the MAC Act before the case proceeded to a final judgment. 13He foreshadowed that a decision on this issue may only be reasonably arrived at after weighing the relevant evidence in order to reach a reasoned conclusion on the causation issue, on the balance of probabilities, and that this should await a consideration of the overall evidence in the proceedings: T14.37. The case proceeded on that basis, and the parties proceeded to call all available and admissible lay, medical and other evidence in their respective cases. 14The defendant initially opposed the plaintiff's proposal for a referral for a further MAS assessment. The matter then proceeded to a full hearing. However, at the conclusion of the case, on the 12th day of the hearing, the defendant consented to the plaintiff's proposal for his claim to be referred back for a further MAS assessment: T740.46. 15The defendant's consent for referral back in order that a further MAS assessment take place was entirely appropriate in the circumstances because the evidence adduced at the trial obviously disclosed additional information capable of having a material effect on the outcome of the previous assessment: s 62(1)(b) of the MAC Act; Trazivuk v Motor Accidents Authority of NSW & Ors [2010] NSWCA 287.

Matters for consideration in interim findings 16The plaintiff has submitted that since the evidence has closed, in making an order for remittal of his claim for a further MAS assessment, I should set out my interim conclusions and interim findings on factual matters and on the pivotal causation issue following a review of the evidentiary matters that have led to the now accepted conclusion that there is additional information capable of having a material effect on the outcome of the previous MAS assessment. 17Although any consideration of causation, and any such interim conclusions expressed in these proceedings, would not ordinarily bind a MAS Assessor, however, given that 12 hearing days, and the related resources of the parties have been expended on the matter to this point, and at a significant cost, I consider that it is only appropriate that I set out the reasoning which has led to the conclusion that additional information has relevantly arisen to justify a referral for a further MAS assessment. To achieve this, it is necessary to trace and record the relevant events that have led to this point, including relevance to the question of costs. 18Furthermore, now that the matter is to be referred back for a further MAS assessment, it is therefore understood to be very likely that any subsequently resumed hearing will not take place for many months, and well into 2013. 19Accordingly, there is a reasonable expectation on the part of the parties that I should record some interim findings that will facilitate the thread of the matter being taken up again on the resumption of the hearing for the purposes of ultimate finalisation of the matter. In this regard, reasonably in my view, the plaintiff has requested that I record my interim findings on the critical causation issue that has arisen on the medical evidence. Ultimately, that course was not opposed by the defendant: T740.46. 20With that purpose in mind, in the paragraphs that follow, after setting out my interim views on the credibility of testimony, I propose to trace the facts of the accident, the injuries sustained, the treatment and medical assessment of those injuries, the effects on the plaintiff's employment, the chronological origins of the causation dispute, and the successive MAS assessments that have led to the present circumstances. 21The endpoint of that process has led me to the interim conclusion that on the required standard of proof, on the evidence adduced, on the balance of probabilities, the plaintiff has overwhelmingly proven that his thoracic compression fractures were caused by the subject accident. I conclude that it would be anomalous for that position to remain unrecognised in the MAS assessment process, and the plaintiff should be afforded the opportunity of seeking to rectify that anomaly.

Credit 22The plaintiff was born in 1970. He was aged almost 35 years when injured. He is presently aged 42 years. Before the accident he led an active life. In his previous sporting activities, he was a competition cyclist and an accomplished archer, activities from which he derived significant pleasure. He is married with three children. He lives on a semi-rural property which he was in the course of developing for his family. He started his working life as a sheet metal tradesman. Before the accident he had risen to a senior supervisory position in site management of major building projects in the building industry. He held very good prospects for advancing to a more senior and less physically demanding position as a project manager. 23I found the plaintiff to be an entirely credible witness who gave his evidence honestly and with an air of restraint and stoic understatement. I did not consider that his evidence was in any way improbable or unlikely to be true in any material respect. 24I also found the defendant to have given his evidence according to his honest belief as to how the events in question occurred. Where the evidence of the plaintiff and the defendant differed on some details as to how the accident occurred, the reliability of the evidence of the respective witnesses stands to be evaluated according to its content on particular matters of dispute.

Facts underpinning the causation issue 25At the centre of the causation dispute is the question of conflicting evidence concerning the likely extent of the force of the impact in the accident in question. An impression of the force of the impact between the two vehicles can be obtained from the accounts given in evidence by the plaintiff and the defendant concerning the events of the collision.

Plaintiff's factual account 26At the time of the accident the plaintiff was driving towards his sister's home in Dural on his way from work as he was intending to stay there overnight. He drove off the M2 Motorway and onto the Pennant Hills Road exit. He had stopped his vehicle behind a line of stationary traffic whilst waiting for a change in the red traffic control light that was ahead of him. As that traffic light turned green, the plaintiff removed his foot from the brake in order to prepare to accelerate forward once the flow of traffic ahead of him had recommenced. As he was about to move forward he heard the screech of a vehicle from behind. He then intuitively looked into his rear view mirror but before he had a chance to see anything, he felt his vehicle had been struck from behind with significant force. 27The plaintiff said that in the course of those events he felt himself being pushed forward in his seat and then being forced back into his seat. His vehicle was pushed forward some metres, he thought probably 10 metres, before he could slam on his brakes and pull up his vehicle. In these events he said his vehicle was out of his control. He estimated, that in these events, his vehicle had been moved forward about 20 metres from the point of impact. 28The plaintiff said he did not know how he had managed to avoid hitting the vehicle in front of him in those events. The plaintiff described his perception of the interval of time involved in those events as being less than a second. In those events he said that he had felt a severe force, the like of which he had never before experienced, travel through his body. He described how after his body had been forced forward, his head and torso were then forced backwards, with what he described as being a lot of force. At the same time he felt his hand come off the steering wheel and hit something, which he thought was the windscreen pillar. He stated that the force of the collision had dislodged the rear view mirror that was glued into position on the windscreen of his vehicle. 29The contemporaneous account given by the plaintiff when he filled in his accident report the next day referred to his vehicle having been struck from behind whilst stationary in traffic, at a speed of approximately 90kph, resulting in him experiencing pains in the neck, shoulder (sic) and in the middle and lower back: Exhibit "F". 30The plaintiff stated that at that time he felt that he was in a severe state of shock. He described the experience as surreal. This was even to the extent that he did not have much of a recollection of talking to the driver of the car that struck him, other than to exchange particulars. He said he did not have much of a recollection of the time that then elapsed, or even of driving to his sister's home, where he had planned to stay overnight. He said that in those events, when he got to his sister's home, he had started to process or absorb what had happened to him. At that time, he said the reality of the shock and the pain had started to affect him. 31The plaintiff described having inspected the front end of the defendant's vehicle, and having seen the whole front end pushed back to the extent that the radiator was pushed onto the motor. He stated that the defendant drove his vehicle away from the scene. 32The plaintiff described the damage to his own vehicle in terms that indicated the rear end of his vehicle "had been dented in ... and ... had shrunk". He described the gaps that were usually located between the doors of his vehicle as having closed or "gone", which gives rise to an inference of some significant distorting force having been applied from behind. 33There is no dispute that the plaintiff's vehicle was later written off by his insurer. Notwithstanding the damage that his vehicle had sustained, he proceeded to drive it for a short distance away from the scene. The markings on the property damage insurer's diagrammatic assessment report on the damage to the plaintiff's vehicle, shows that it was damaged in the areas of the rear bumper and boot area. The insurer's letter advising that the vehicle would be written off described the damage as being extensive: Exhibit "E".

Defendant's factual account 34The defendant is a general manager for a company in the coffee industry. He stated that shortly before the accident he had been driving on the M2 Motorway, where he had been travelling at 100kph onto the exit ramp at Pennant Hills Road, where he had slowed down because of the reduced speed limit of 60kph at that point. 35The defendant stated that a bank of stationary traffic had appeared in his vision ahead of him more quickly than he had anticipated. In these circumstances, he had slammed on his brakes, but he had nevertheless collided with the rear of the plaintiff's vehicle. He qualified his evidence by stating that he could not be accurate. He thought that the collision occurred at a point about 100 - 200 metres after his entry onto the exit ramp. He thought the length of the exit ramp was about 300m. 36In the context of the defendant being unable to be accurate in his descriptions, he thought he had slowed from the motorway speed of 100kph to the exit ramp speed, which was 60kph. I infer from this evidence that he was seeking to convey the impression that the collision occurred when his vehicle was braking from a speed of 60kph. That said, the defendant did not seek to convey an impression that his evidence concerning speeds or distances was accurate. 37The defendant estimated that after the collision, the plaintiff's vehicle moved forward for a distance of what he described as being between 1 and 3 metres. The defendant stated that after the collision he backed his vehicle away from the plaintiff's vehicle. The defendant stated that the front bonnet and bumper bar of his vehicle had been crumpled and there had been some damage to his radiator. He said that although he had driven his vehicle about 1.5kms from the scene, he was worried about his radiator over that journey. He said that in the collision, the airbags on his vehicle had not activated, a matter to which I shall shortly return. 38The defendant agreed that the back bumper bar of the plaintiff's vehicle had been pushed in. In cross-examination, he was not able to say whether, at the time of the collision with the plaintiff's vehicle, his own vehicle had been travelling at more than 60kph. He agreed it was possible that this was so. He sought to avoid answering questions concerning the degree of force or violence involved in the collision with the plaintiff's vehicle: T550.45 - T550.48. He agreed that at the time of the collision, he was in the process of slowing down from 100kph to 60kph: T552.11. He acknowledged that he could not give accurate evidence of the braking of his vehicle or the duration of such braking. 39The defendant fairly acknowledged he was at fault in the events of the accident. He agreed that he was shocked by the collision. He also agreed that the force of the collision made him consider that he might have caused the plaintiff to suffer an injury. He agreed the damage to his own vehicle was sufficient for it to be later towed away. 40The defendant agreed that it was possible that he had not seen the plaintiff's vehicle because it had not displayed a brake light. I consider that this was most likely because the plaintiff had at that time taken his foot off the footbrake in order to then accelerate. The defendant agreed that he had acted with a panic reaction in applying the brakes at the scene. In giving that evidence, it was clear that the defendant found it hard to be accurate in recounting the events in question. 41It is clear that in this litigation, the admission by the defendant of a breach of duty of care was appropriately made.

Interim finding concerning the events of the collision 42In comparing the respective versions of the events of the collision, my interim conclusion is that the plaintiff's account should be preferred. This is so because it was more detailed as to the events compared to that of the defendant, who clearly, was not keeping a proper lookout and was therefore in a lesser position of advantage to accurately take in the relevant events. 43Furthermore, given that the defendant stated he was slowing down from a speed of about 60kph at the time of impact, the extent of the damage to both vehicles, as described by the plaintiff, and which I accept, indicates it was unlikely that the plaintiff's vehicle was pushed forward a distance of only 1 to 3 metres, as estimated by the defendant. Compared to the less detailed version of events put forward by the defendant, I prefer the more detailed account given by the plaintiff as being more likely to be correct, noting that the plaintiff's account was not inherently or glaringly improbable. 44I therefore find that the impact between the two vehicles occurred with some considerable force, with the plaintiff's vehicle being stationary at the time it was hit, and when the defendant's vehicle was travelling at a speed somewhere between a little under 100kph or 90kph, as described by the plaintiff in Exhibit "E", and around 60kph or slightly less, as indicated by the defendant. On the evidence, it is not possible to identify the speed at impact with any degree of precision. 45In arriving at these interim conclusions I have not overlooked the reports and opinions of Mr Keramidas dated 20 October 2008 and 5 January 2009 that were tendered by the defendant: Exhibit "4". 46In my view, the evidence of Mr Keramidas takes on a much lesser significance in the causation analysis in this case once it is recognised that the unchallenged medical evidence is to the effect that compression fractures can occur in a motor vehicle accident involving a relatively low impact speed, and that the force of the collision reported by the plaintiff was of a sufficient force to have caused those fractures ultimately detected in his thoracic spine. 47Once this proposition is accepted, which must be so on the evidence in this case, the opinion of Mr Keramidas on the likely speed of the defendant's vehicle becomes a much less relevant consideration on the pivotal causation issue. So too is the question of whether, or why, the airbags on the defendant's vehicle failed to activate in the collision. As there was no mechanical examination of the vehicles after the collision, the reasons for the non-activation of the airbags and this component of the expert evidence, must remain largely speculative. 48This is because there was no evidence of the state of operation of the impact sensors which controlled the activation of seatbelt clamp pretensioners as well as the mechanisms that deployed the airbags on the defendant's vehicle. This is a matter of some importance because Mr Keramidas' key opinions were expressed in only general terms. 49The first of Mr Keramidas' opinions of relevance in that regard was that when a collision with a vehicle of the GM range collided with a fixed barrier, airbags "generally" deploy at a speed of 18 to 20kph. Mr Keramidas said that the "approximate equivalent" speed of a Holden Astra of the type driven by the defendant into collision with a Ford Falcon stationwagon of the type driven by the plaintiff "would likely require an impact speed of about 40kph". It is plain that there is considerable scope for variations within those assumptions. 50The loose assumptions within those opinions are self-evident. Furthermore, the underlying assumption equating a collision between a fixed barrier and a motor vehicle, and a collision between two motor vehicles neither of which were fixed barriers, but which had moved some metres after impact, probably, 20 metres, appear to be fundamentally flawed, and therefore, an unreliable basis upon which to infer a low speed collision, based on the non-deployment of airbags. 51Mr Keramidas' opinions were qualified as being of a preliminary nature, and were not based on sufficient data to render the plaintiff's account of a forceful impact improbable. One of the difficulties is that it is not known what degree of braking force the plaintiff managed to achieve after impact, enabling him to bring his vehicle to a stop within 20 metres of the impact, as he described. 52Mr Keramidas' supplementary report dated 5 January 2009 was based on "a further letter of instruction dated 23 December 2008" and an enclosed "interview" of the defendant dated 22 September 2008. Neither of those details were available for consideration in the evidence in these proceedings. This therefore makes Mr Keramidas' ultimate opinion of an impact speed as being between 10kph but below 30 to 40kph, difficult to rely upon, or to accept.

Injuries as initially appreciated by plaintiff 53After the initial shock of the collision, the plaintiff noticed that he was in a lot of discomfort in his neck, shoulder, in his upper and lower back, and in his legs. It also appears from his medical history that he also injured his right arm, elbow and wrist. Once he had driven to his sister's home he felt ill, and he felt like vomiting. Instead, he dry-retched. He could not recall much of the details of that drive to his sister's home. 54The plaintiff said that at the end of that short journey he felt in severe pain in his neck, with radiation all the way down his body and into his left leg. In particular, he identified his thoracic spine, his lower back and his left hip as the sites of pain. He stated that he had never before experienced pain like that in any parts of his body. He stated that once he had sat down, he felt spasms in his back muscles, like "ladders climbing up [his] back". These problems led him to have a sleepless night. 55The descriptions summarised in paragraphs [26] to [54] above are of great relevance to fact-finding on the cause of the plaintiff's thoracic fractures and clearly represent additional material for consideration in a MAS assessment pursuant to s 62(1)(b) of the MAC Act, along with the additional medical analysis that I shall identify in due course in these reasons.

Prior injuries 56Not unusually for a person who has led an active life both in sport, on the roads and at work, the plaintiff has had a number of previous injuries that have, for a limited time, affected him. There is no reasonable basis for inferring that such previous injuries, which are referred to in the chronology, Exhibit "A", and in the transcript at T.90 to T.94, had any deleterious or lasting impact on the plaintiff. I accept the evidence of the plaintiff in that regard when he said he considered himself to have been tough, vigorous and in sound health before the accident: T94.34. I shall return to this topic when analysing the MAS report of Dr Best dated 28 January 2009, which was tendered and relied upon by the defendant.

Pre-existing osteoporosis of plaintiff's thoracic spine 57The osteoporosis detected in the plaintiff's thoracic spine on 25 September 2006 was, on the preponderance of the medical evidence, present there before the plaintiff's accident on 24 August 2005. From the perspective of an analysis of legal causation, the pre-existence of that osteoporosis is not a factor that absolves the defendant from liability in damages because the applicable legal principle is that the defendant must take the plaintiff and his underlying vulnerabilities as he is found. If the accident was a material contributing factor to the plaintiff's thoracic spine injury and related resultant disabilities, this is something for which the defendant must take responsibility, especially where the unchallenged medical opinion of an endocrinologist is that the underlying osteoporosis predisposed the plaintiff to acquiring a back injury: Exhibit "C", Tab 4, page 57: Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, at [18].

No treatment during first three months after accident 58Initially, the plaintiff did not seek any treatment for his injuries that resulted from the accident. This was because of his stoic disposition, his ambitious commitment to his long working hours, and the expectation he held at the time that his post-accident discomforts would subside with time, as was his experience with the course taken by the more minor injuries that he had encountered in the past.

Subsequent episode of low back pain on 30 November 2005 59On 30 November 2005, a little under 3 months following the motor vehicle accident, the plaintiff sustained a strain to his lower back at work. This occurred when he was assisting some workmen on a building site to place an air-conditioner onto the back of a motor vehicle. After the air-conditioner had been loaded into the vehicle by a forklift, and before the plaintiff closed the rear door of the vehicle, he bent over to ready himself to push the air-conditioner further into the vehicle. In doing so, as he touched the air-conditioner he felt a stabbing pain in his lower back. From that description, which I accept, it does not appear this was so much a straining injury, but rather, a manifestation of the injury that occurred on 24 August 2005

Chiropractic treatment after 30 November 2005 episode 60It was not until 2 December 2005, which was a little over 3 months following the injury from the motor vehicle accident, that the plaintiff sought out the assistance of a chiropractor at the suggestion of his employer, and then later, a general practitioner for a medical certificate, that the trail of medical and allied evidence begins. I shall refer to that evidence in greater detail when framing the context of the successive medical reviews of the plaintiff in connection with the analysis of the causation issue. 61The defendant's characterisation of the incident on 30 November 2005 was that this represented a new or frank injury. In my view, that stance is not based on any factual evidence, and it does not arise from a reasonable interpretation of the plaintiff's evidence concerning the incident. I consider that the medical opinion asserting otherwise, is based on a flawed assumption concerning the nature of that treatment.

Disabilities 62Given that I have accepted the plaintiff as a credible witness, I am satisfied that the medical and allied practitioners who have provided reports following their examinations of the plaintiff, have accurately summarised his complaints. I take those summaries to be evidence of his injuries and disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995. 63The plaintiff has ongoing pains in his neck, his thoracic spine and his lumbar spine. He has restricted movements in these areas, which affect his physical dexterity. He experiences frequent and disabling headaches. 64He has radiated pains in his limbs, and reduced capacity to sit, drive, stand or walk for prolonged periods. He has reduced capacity to lift, bend and carry. He suffers disturbed sleep, he experiences psychological sequelae including depression, anxiety, panic attacks, frustration and impairment to his interpersonal family relationships. 65The plaintiff will have a need for physical, medication and psychological treatment in the coming years. It is plain from the evidence that the ongoing effects of the accident have had, and will continue to have, a significant adverse impact upon the plaintiff's enjoyment and amenity of his life.

Plaintiff's pre-accident employment 66Before the subject accident the plaintiff had risen through successive ranks of employment to reach a senior position in site management in the building industry. After leaving school he commenced his employment career by the completion of an apprenticeship as a first class sheet metal worker. He quickly rose to the position of foreman and then to the position of site supervisor on major construction sites. He then rose to the position of team leader and site manager. He held the reasonable ambition of becoming a project manager in the construction industry. He had already obtained distinctions in his examinations for Certificate IV in Small Business Management at TAFE. 67The bundle of economic loss material tendered in the plaintiff's case, Exhibit "D", comprised 32 tabs that included the plaintiff's income tax returns, notices of assessment, payslips, trade certificates and qualifications, academic transcripts, testimonials and curriculum vitae. Those documents are supportive of the conclusion that before his accident the plaintiff was an able worker, who had a very strong work ethic and commitment, together with excellent planning and organisational skills, with many competences, including working co-operatively as part of a team. 68At the time of the accident the plaintiff's employment was with Triple M Mechanical Services Pty Ltd as a site manager dealing with mechanical services. He was allocated the management of sites where the value of his employer's work projects were between $10M and $20M. The plaintiff's work carried with it high levels of responsibility for timely completion and effective management of labour, materials, logistics and resources. He worked very long hours and was held in high regard by his employer. 69At times, the plaintiff's work also required him to regularly become involved in some physical tasks in order to get the job done according to work deadlines. This sometimes involved him manipulating weights of 40kgs on a regular basis and working on ladders. The work had its stresses but the plaintiff clearly managed this, and diligently applied himself to his work in accordance with his ambitions for promotion to the position of project manager in that industry. His position at the time of the accident was one level below that of project manager. Reasonably, he assessed his own prospects of becoming a project manager as being very good. That view was shared by his employer.

Post-accident employment 70It was against this background that despite feeling badly affected by pain following the accident, the plaintiff felt the burden of responsibility that compelled him to return to his work on the day following the accident. On working days his habit was to rise at 4.00am in order to be at work at 5.30am. He attended his work the day after the accident because in the circumstances, and at such relatively short notice, he realised that the detail and responsibilities of his current work was not reasonably delegable to others, and because he felt the need and the weight of responsibility to comply with the known work deadlines. 71Despite the plaintiff experiencing constant pain in the thoracic spine and in the lower back, as well as in both wrists, his elbows, shoulders and arms, he attended to his work at a time when he was in agony. His employers were made aware of the events of the accident. For a time, they were very understanding of his situation and authorised him to delegate the heavier tasks that were required of him in his day-to-day work. Such delegation was possible because at the time, he had two other site supervisors working under him. 72However, the plaintiff experienced difficulties continuing with his pre-accident work duties. He had a number of periods off work and eventually, on 9 July 2007 his contract with Triple M Services Pty Ltd expired. Subsequently, his employment with that company came to an end on 20 December 2007. 73Thereafter, on 5 August 2008, following a period of unemployment, the plaintiff obtained work with Omega Cycle Works. He found it difficult to cope with the work and resigned on 4 September 2008. After a further period of unemployment, on 1 October 2010, the plaintiff commenced work on lighter duties within his reduced physical capacities, at a lesser rate of remuneration than his pre-accident employment. 74In these interim reasons it is not relevant to further analyse the plaintiff's economic circumstances. The above summary will form the framework for findings on damages concerning the claim for economic loss made by the plaintiff, as set out in the statement of particulars and elaborated upon in the evidence. That analysis will be set out when the occasion arises for delivering a judgment on damages.

Medical assessments of plaintiff 75It is relevant to review the entire medical evidence in the proceedings as a backdrop to the analysis of the causation issues.

Pre-accident medical assessments of the plaintiff 76The plaintiff's pre-accident medical records kept by Dr Mehta were tendered: Exhibit "C", Tab 4. For the period 1986 to 2003, the entries in those records were unremarkable, and to the extent that they were legible, they appeared to have little relevance to these proceedings. In addition to a number of minor ailments that were recorded from time to time, on 28 June 1995 there was an isolated instance reported of localised tenderness over L4/L5/S1, which resulted in the plaintiff taking 2 days off work. In 1996 there were some consultations concerning some interpersonal family relationship issues, which seemed to have resolved. 77The plaintiff has a sibling who had been diagnosed with bipolar disorder. For a time the plaintiff had experiences some symptoms associated with the use of cannabis. There is no evidence that this past activity interfered with his work or his earning capacity. 78On 15 November 2004, which was some 9 months before the subject accident, as part of a pre-employment medical check, the plaintiff underwent an x-ray examination of his lumbosacral spine. This was reported as showing no evidence of any spondylosis or spondolysthesis and no obvious disc pathology or lumbosacral abnormality. This x-ray was later described by a rheumatologist as being unremarkable: Exhibit "C", Tab 8. The timing of this x-ray examination would appear to be the subject of Dr Goodman's subsequent commentary at the foot of the first page of his letter dated 11 April 2006 at Tab 2 of Exhibit "C".

Post-accident medical and allied consultations 79Before proceeding to analyse the most recent and contentious MAS Certificate which is the focus of the application for referral of the claim back for a further MAS assessment, I propose to set out the chronological sequence of the plaintiff's post-accident medical contacts and assessments as that material is in evidence in the proceedings, and it is therefore necessary that it be considered in order to provide the necessary framework for the analysis of the MAS reports. That chronological sequence appears between paragraphs [80] to [172], as follows. 80The first post-accident attendance of the plaintiff on any health care practitioner was on 2 December 2005, when he attended the practice of Mr Angelo Angelopoulos, a chiropractor. He did so at the recommendation of his employer. In view of the suggestion raised by the defendant concerning the treatment by Mr Angelopoulos, and the prospect that the chiropractic treatment had a causative role in the plaintiff's thoracic compression fractures, it is necessary to examine this treatment in some detail. 81The letter dated 23 May 2012 from Mr Angelopoulos portrayed the plaintiff's presenting problem as being gradually worsening thoracic, lower back and left sided leg pain that immediately followed a 90kph high speed motor vehicle accident on 24 August 2005. The printout contained within the records provided by Mr Angelopoulos demonstrates that between 5 December 2005 and 23 August 2008, the plaintiff had some 38 consultations with Mr Angelopoulos. 82The subsequent letter prepared by Mr Angelopoulos at Tab 5 of Exhibit "C" referred to the plaintiff having had, in addition to advice concerning exercise, "trigger point release therapy in the thoracic and lumbar spine musculature and gentle specific spinal manipulation to the same areas." Mr Angelopoulos referred to this treatment being applied to L5, T12 and T8 in conjunction with core stability exercises. The treatment was discontinued for financial reasons as eventually, the workers' compensation insurer declined to continue to pay for it. 83Without more, particularly since the handwritten notes of Mr Angelopoulos are difficult to interpret in part, and in view of the fact that in his letter dated 23 May 2008, Mr Angelopoulos described the spinal manipulations as "gentle". It would appear this was not suggestive of the application of significant forces capable of causing fractures to the plaintiff's thoracic spine. I reach that conclusion because of the evidence of Dr Preston, who said that fractures of the thoracic spine would have been accompanied by acute pain, the plaintiff did not describe there being such pain in association with the chiropractic treatment he received. 84On 8 December 2005, the plaintiff was examined by Dr Steven Goodman, a general practitioner, who provided a WorkCover medical certificate which referred to the motor vehicle accident as having occurred some 3-4 months previously. In that context, the certificate referred to another incident having occurred some 8 days previously, when the plaintiff suffered severe lumbar back pain when pushing some objects into the back of a station wagon. Dr Goodman recorded a history of muscle pain and on that occasion his diagnosis of muscle spasm. The reference in Dr Goodman's report to "pushing" must be viewed with caution given the more precise description given by the plaintiff and given the different purposes of summarising medical history and giving more precise evidence of the events in court: Mason v Demasi [2009] NSWCA 227. 85Dr Goodman also provided a 3 page handwritten letter to the CTP insurer in which he referred to the back pain for which he had been consulted as being acute lower back pain. He noted the history of muscle pain in the thighs, hamstrings and buttocks on the left side, worse when sitting for a long time. That description gave no indication that the back strain under consideration at that time also involved the plaintiff's thoracic spine. 86Dr Goodman referred to the plaintiff's history of having earlier had a motor vehicle accident, and he summarised that history referring to the plaintiff having experienced back, neck and shoulder pain since the motor vehicle accident. The precise region of the back pain from that accident was not specified in the letter. In this context, Dr Goodman stated that he thought the plaintiff had experienced an acute lower back strain in the work incident on 30 November 2005. 87Whilst Dr Goodman thought the motor vehicle accident could have contributed to the lower back strain on 30 November 2005, he found it difficult to say which pain was consistent with which injury. He advised the plaintiff to have an x-ray and to continue seeing his chiropractor. In the interim, he gave the predictive opinion that the plaintiff's condition would improve "but there will be further exacerbations such as on 30 November 2005." 88In the interim, the plaintiff continued to see the chiropractor, Mr Angelopoulos, for the treatment that was described in Mr Angelopoulos' materials. There is no evidence within those materials of an episode of acute pain that might give rise to a suspicion that such treatment may have caused fractures to the plaintiff's thoracic vertebrae. 89On 31 March 2006, at the request of the workers' compensation insurer, the plaintiff was seen by his general practitioner, Dr Mehta, who confirmed the plaintiff's history and stated that the timing of the plaintiff's return to work was unpredictable or uncertain. At that time it was noted that the plaintiff was diagnosed with osteoporosis, which has led to him suffering from depression and anxiety. Dr Mehta noted that the plaintiff was due to return to work on restricted duties on 10 February 2007. 90On 14 September 2006, Dr Mehta observed the plaintiff to be very tender over the areas of T3, T4, T5, T6 and also over the L4, L5 and S1 areas. Dr Mehta arranged for x-ray and CT examinations of the plaintiff's thoracic and lumbar spines. In addition to the matters set out in his report, Dr Mehta's notes of 14 September 2006 recorded the plaintiff's complaints of tenderness in the areas described, including tingling and numbness in the shoulders and in the left leg. Dr Mehta also noted the plaintiff had been seeing his chiropractor for treatment, but without improvement of symptoms. Dr Mehta also noted the absence of any imaging taken of the plaintiff's spine to that point in time. She then arranged for the plaintiff to undergo CT scanning of the thoracic and lumbar spines. 91On 25 September 2006, the imaging investigations suggested by Dr Mehta were reported to show diffuse thoracic spine osteoporosis, a wedge shaped degree of compression of greater than 20 per cent at the level of T5, which was said to be due to a technical fracture. A CT scan of the lumbar spine of that date showed a mild L4/L5 disc bulge and mild spinal canal stenosis at the level L5/S1. The relevant part of the actual imaging report stated: "CT Scan of Lumbar Spine Standard protocol for the lower three vertebrae and intervertebral discs was followed. At L3/4 the disc is normal. The dimensions of the canal and foramina are normal. A1 L4/5 there is a mild bulge of the posterior surface of the disc. This is causing a mild canal stenosis. The bones are normal. AT L5/S1 the shape of the disc is normal. The dimensions of canal and foramina are normal. There is no bone or soft tissue abnormality. Comment There is no visible abnormality at the level where the patient identifies his pain in the lower back. The 4th and 5th thoracic vertebrae have wedge shapes consistent with simple compression fractures. There is a mild disc bulge at L4/5." 92On 3 October 2006, at the request of Dr Mehta, the plaintiff underwent bone density testing. The plaintiff was then referred to an endocrinologist. 93On 4 October 2006, Dr Martin Epstein, a consultant endocrinologist, stated that the bone density scan showed the plaintiff's spine bone density was subnormal and osteoporotic. He did not refer to any particular portion of the plaintiff's spine in making that comment. He suggested a further endocrinological review would be worthwhile. 94On or about 10 October 2006, Dr Mehta referred the plaintiff to Dr Epstein for further management of his osteoporosis. Following some feedback from Dr Epstein, Dr Mehta later referred the plaintiff to Dr Russo at a pain management clinic for treatment of his pain related problems because he was showing signs of stress. Dr Mehta scheduled a further review of the plaintiff that was to take place on 12 May 2007. 95On 5 December 2006, at the request of Dr Mehta, the plaintiff was again examined by Dr Epstein. After reviewing the plaintiff's history and some results of investigations, Dr Epstein stated that in his opinion, the plaintiff probably had osteoporosis all his life at least to some degree, and that he was pre-disposed to getting a back injury at the time of the accident. He also stated that in his view, it was likely that the accident was the cause of injury to the plaintiff's back. 96On 13 February 2007, at the request of the solicitor for the workers' compensation insurer, the plaintiff was examined by Dr John Stephen, a consultant surgeon and spinal surgeon. Dr Stephen saw what he described as plain x-rays of the plaintiff's thoracic and lumbar spines taken on 25 September 2006. 97Dr Stephen stated that he agreed with the reporting radiologist that there was wedging of the fifth, and to a lesser extent, of the fourth thoracic vertebra, and an apparent slight depression of the superior end plate of the sixth thoracic vertebra. He said that CT scans of the thoracic spine from T7 to T12 showed "no significant abnormality". 98Dr Stephen expressed the view, on the balance of probabilities, considering the violent nature of the collision and the presence of osteoporosis, that it was more likely than not that the plaintiff did sustain a minor crush fracture of the T5 and T4 thoracic vertebral bodies. Properly understood, Dr Stephen's view was that this injury occurred because of the superimposition of the trauma of the accident on the plaintiff's underlying thoracic osteoporosis. This was made clear by his statement that the plaintiff would not have sustained this injury if he did not have osteoporosis. 99Dr Stephen stated that the plaintiff could not expect a benefit from physical therapy and said that chiropractic sessions were contraindicated as manipulations are "likely to produce trouble and could even have produced the minor fractures observed in the upper thoracic region". These comments by Dr Stephen have to be read in the light of his subsequent commentaries based on materials and assumptions provided to him for his consideration. This is a matter to which I will return after reviewing the entire array of expert opinions on that issue. 100On 19 February 2007, at the request of his solicitor, the plaintiff was examined by Dr Terry Kwong, a consultant rheumatologist. Dr Kwong noted a history of the plaintiff's worsening chronic back pain and depression following the diagnosis of osteoporosis. He also noted the plaintiff had a marked sleep disturbance. Dr Kwong attributed the plaintiff's condition to the motor vehicle accident, and identified a very guarded prognosis. 101On 19 February 2007, Ms Anne Sharkey, a clinical psychologist, reported to Dr Mehta that the plaintiff had seen a psychologist at her clinic for counselling. The letter referred to an injury related to workers' compensation, but no further particulars were provided in that initial letter. I infer from the context, that this was a matter related to the subject accident. 102On 22 February 2007, in answer to a questionnaire from the worker's compensation insurer, the treating general practitioner, Dr Mehta, advised that insurer that she thought that whilst the plaintiff's osteoporosis in the plaintiff's thoracic spine pre-dated the accident, the accident had probably caused the crush fractures to the thoracic vertebrae as well as causing the lumbar back pain, and that the non-physical component of the plaintiff's problems, namely depression, had flared up because of continuous pain, which had worsened. 103On 27 February 2007, at the request of his solicitor, the plaintiff was examined by Dr Peter Conrad, a consultant surgeon. Dr Conrad was of the view that the plaintiff had incurred wedge fractures of his two thoracic vertebrae as a result of the motor vehicle accident. He also noted the plaintiff had superadded symptoms of psychological stress, which he thought required management. 104On 28 February 2007, at the request of the solicitor for the plaintiff, Dr Conrad provided a commentary in which he identified the accident as a substantial contributing factor to the plaintiff's WPI. 105On 1 March 2007, after seeing the plaintiff, Dr Marc Russo, a pain management specialist, wrote to Dr Mehta advising that the plaintiff had been assessed as a candidate for out-patient cognitive behavioural therapy for management of his pain. Dr Russo noted that the plaintiff also required antidepressant treatment before CBT could proceed. Dr Russo recommended three prescription medications and a multidisciplinary assessment of the plaintiff's needs. On the same date, Dr Russo referred the plaintiff to a psychologist for assessment for entry into the Pain Management Program. 106On 12 March 2007, under the letterhead of Innervate Pain Management, Dr Russo wrote to the workers' compensation insurer seeking approval for a multidisciplinary assessment for pain management. On 15 March 2007, Dr Russo arranged for the plaintiff to have a multidisciplinary assessment to assess the plaintiff's suitability for a cognitive behavioural therapy pain management program. 107On 28 March 2007, at the request of the workers' compensation insurer, the plaintiff was examined by Dr Allan White, a consultant psychiatrist. Dr White prepared three reports which were addressed to the workers' compensation insurer. For reasons that were not made apparent, all three of Dr White's reports were dated 28 March 2007. Some of those reports did not contain a reference to an acknowledgment of the Expert Witness Code required by UCPR r 31.23. 108One of Dr White's 28 March 2007 reports was a two-page letter which described the consultation, the history, the mechanics of the accident, and concluded with an outright dismissal of a relevant connection between the plaintiff's psychiatric problems and the accident in question. 109Another of Dr White's 28 March 2007 reports was a two-page letter which addressed a series of 21 questions which had been posed to Dr White by the workers' compensation insurer. In this report, on the basis of what appears to me to be flawed assumptions to the effect that there was no corroborative evidence of a serious accident with the potential to cause serious injury, there being only benign soft tissue injuries, Dr White identified what he described as Abnormal Illness Behaviour as the central issue. He also stated that the plaintiff's psychiatric illness, plus the plaintiff's alcohol and drug use, was a sufficient explanation for the plaintiff's emotional distress. It is plain from that analysis that Dr White did not proceed to consider other, namely, accident related causes for the plaintiff's emotional complaints. 110The other of Dr White's three 28 March 2007 reports was a 22 page structured psychiatric report. That report followed Dr White's interview with the plaintiff on the same day as the report. 111Dr White thought that on the occasion of his consultation the plaintiff exhibited what he described as disorganised thinking and he remarked that he found it difficult to determine some items of history. 112That impression was very different to my own impression of the plaintiff's presentation and evidence in these proceedings. It was also different to the recorded impressions of a number of medical practitioners who had examined the plaintiff and whose reports were in evidence in these proceedings. 113Dr White was critical of the manipulative treatment received from the chiropractor, and was sceptical of the benefits described by the plaintiff. Dr White took the view that the plaintiff was smoking marijuana and exhibiting signs and symptoms of hypomania. He took the step of contacting Dr Russo to alert him to that view. 114Dr White referred to the plaintiff's complaints as "a litany of physical and psychiatric symptoms" and dismissed them as not being reasonably attributed to the road traffic accident. Rather, he thought that the plaintiff had "Abnormal Illness Behaviour" as his central issue. My difficulty in accepting Dr White's views and formulations is that he does not specifically identify the symptoms he pejoratively describes as a litany. By lumping all the plaintiff's symptoms together in this way he has precluded any useful rational analysis of the true basis of his views that were expressed in that way. 115A further difficulty standing in the path of acceptance of Dr White's views is that he appears to have made what I consider to be a factually incorrect assumption that the plaintiff was not in pain at the time of the accident and following, hence his discounting comment at page 7 of his 22 page report as follows: "It is my understanding that the severity of the pain at the time of the injury is the best clinical indicator of the severity of any soft tissue injury caused by the accident. Gradual or delayed onset of pain suggests other causations such as degeneration, inflammation, infection, cancer, or Abnormal Illness Behaviour." 116Furthermore, at page 8 of his 22 page report, Dr White stated that individuals who complain of pain being of 10/10 severity for "benign medically unexplained mechanical injuries can be deemed with reasonable medical certainty to be exaggerating". That view was not consonant with the detected abnormalities found on imaging of the plaintiff's thoracic spine and described as compression fractures. This seems to me to be a further reason to discount Dr White's views. 117Dr White's interpretation of the plaintiff having been referred for specialist pain management for what he described as MUPS (medically unexplained physical symptoms) was based on the anecdotal experience "of many clinicians ... as a way of disposing of the patient". That comment did not appear to have any relationship to the plaintiff's problems. 118Those statements, together with his reference to exaggeration and "illness affirming" treatments, and Dr White's advice to the insurer (at page 17 of his 22 page report) to obtain independent verification from objective and reliable sources concerning the plaintiff's disability and impairments, suggest that Dr White's analysis looked at only the negative possibilities rather than balancing the analysis with other possible explanations, even if only to exclude them, and is therefore unduly sceptical, and should not be accepted. 119Dr White's discounting view of the severity of the plaintiff's injury, where he stated that since the seat in the plaintiff's motor vehicle was not broken, this made a significant spinal injury unlikely, was out of step with the opinions of other specialists in physical medicine disciplines. His own qualifications for making that statement are unclear, which is a further reason for discounting his opinions. 120So too is Dr White's resort to the expression of a "little more than medico-legal sleight of hand" to explain the plaintiff's workers' compensation claim as having "been made with absolutely no explanation and with absolutely no justification". Both of these sweeping statements seem to be misplaced. No more explanation is required for the making of a workers' compensation claim than the existence of a legal right to do so. The statement "absolutely no justification" is plainly hyperbole or exaggeration of the true position as revealed by the preponderance of the medical reports that I have already reviewed and summarised thus far. 121In my view these matters contaminate Dr White's report and this compels me to the view that I should not accept his opinions or his analysis because his reasons do not seem to be entirely objective, and he has unwarrantedly resorted to pejorative statements, which I consider has clouded his analysis to render it unsafe for acceptance. 122This is one of the difficulties that sometimes emerges in cases which require the analysis of contentious medical reports where the authors are not called to give evidence to explain the basis of their views. In those circumstances, the weight to be attached to such views must proceed according to a logical analysis weighed alongside the other evidence. 123On 29 March 2007, at the request of the workers' compensation insurer, Dr Stephen considered the report of Dr Conrad dated 28 February 2007. Dr Stephen said he agreed with Dr Conrad's opinion on the plaintiff's injury. 124On 13 April 2007, at the request of Dr Mehta, the plaintiff underwent some further imaging studies of his spine. The resultant report included the following commentaries: "Xray Thoracolumbar Spine Report In the thoracic region normal bony architecture is demonstrated. There is anterior vertebral body wedging throughout the mid and lower dorsal spine with up to 30% loss of anterior vertebral body height (at approximately T5 to T7). In the lumbar spine there is straightening of the normal lordosis. Bony architecture is normal and the disc spaces are well preserved. Comment Dorsal kyphosis with extensive anterior vertebral body wedging. Straightening of the normal lordosis without evidence of significant disc narrowing in the lumbar spine. CT Thoracic and Lumbar Spine Technique Thoracic spine: axial and sagittal imaging from T3 to T9. Lumbar spine: axial, sagittal and angled axial imaging from L3 to S1. Report Thoracic Spine: At T5 and T6 there is anterior vertebral body wedging of between 25 and 30% with prominent Schmorl's node along the superior endplate of T6. Bony architecture appears markedly osteopenic throughout. Spinal contours are normal throughout. There is no evidence of significant foraminal narrowing. Paravertebral soft tissues are normal. Comment Marked changes of osteoporosis and anterior vertebral body wedging throughout the mid dorsal spine. Lumbosacral Spine: L3/4 level: Disc contours are normal and nerve roots exit normally. L4/5 level: There is a mild to moderate annular disc bulge. Nerve roots exit normally. L5/S1 level: There is a central disc herniation. L5 nerve roots exit normally and intracanal portion of the S1 nerve roots is normal. Comment Moderate annular disc bulge at the L4/5 level and small central posterior disc bulge at the L5/S1 level without significant mass effect." 125On 16 April 2007, Dr Stephen provided a further report to the workers' compensation insurer commenting upon Dr White's report. He agreed with Dr White's conclusion concerning abnormal illness behaviour, but he also noted that maximum medical improvement had not yet been reached at that stage. That opinion was given without the benefit of a further examination of the plaintiff. 126On 23 April 2007 Ms Sharkey reported upon the plaintiff's progress with regard to psychological counselling and treatment at her practice. She noted there were reported improvements in the plaintiff's sleeping, and with regard to his use of anti-depressants. She foreshadowed that the plaintiff might need some further sessions to maintain and to consolidate the progress that had been made. 127On 9 May 2007, at the request of the workers' compensation insurer, the plaintiff was examined by Dr Con Kafataris, who is described as a corporate medical consultant and an injury management consultant. The purpose of that interview was to advise the workers' compensation insurer in relation to the plaintiff's condition. Dr Kafataris was guarded in this, his first report, and suggested the plaintiff might attempt increased hours of work. The difficulties that I have in placing any significant reliance on Dr Kafataris' report is firstly, he has not acknowledged the Expert Witness Code in his report, as is required by UCPR r 31.23, and secondly, by quoting from a report of Dr White, which I consider to be flawed and unreliable, Dr Kafataris' analysis has therefore been contaminated by Dr White's views which I have determined should carry little weight in the analysis of the evidence in this case. 128On 14 May 2007, Dr Mehta assessed the plaintiff for the purposes of a mental health care plan because she felt that he needed counselling and because there was a family history of bipolar disorder, and she queried whether the plaintiff might have had some degree of psychosis due to "THC" or cannabis overuse. Dr Mehta diagnosed depression in the plaintiff and was concerned that she have her diagnosis confirmed as correct so that the plaintiff could receive the correct management. She noted the form as showing the plaintiff had been referred to Ms Sharkey, was taking Avanza and was feeling better taking that medication. 129On 14 May 2007, at the request of Dr Mehta, the plaintiff underwent an x-ray examination of his cervical spine, right wrist and right elbow. The reason for those x-rays being taken at that time was not apparent however I infer this was ordered because of complaints concerning those areas. There was no reported abnormality of the wrist or elbow. The cervical spine was reported to show mild scoliosis concave to the right, and mild end plate spurring of the C3 and C4 segments, suggesting early spondylosis. 130On 18 May 2007, Dr Conrad wrote to the solicitor for the plaintiff to clarify some apparent misapprehensions he felt were held by the workers' compensation insurance claims officer involved in the plaintiff's case as to the meaning to be taken from his earlier report concerning whether the plaintiff had reached a state of maximal medical improvement. In his reasoning Dr Conrad demonstrated that the workers' compensation claims officer who had queried Dr Conrad's earlier opinion as self-contradictory, had himself not appreciated the contextual use of the term maximal medical improvement, which was a protocol definition and not a medical term of ordinary usage. Dr Conrad stood by his opinion and it was not relevantly contradicted. 131On 6 August 2007, Dr Russo reviewed the plaintiff's progress, the medications the plaintiff was taking, and the results of investigations of the plaintiff's osteoporosis. Dr Russo suggested that the plaintiff undergo further testing by the clinical psychologist in order to define the parameters of the proposed further treatment program. 132On 6 September 2007, at the request of the workers' compensation insurer, Dr Stephen provided a commentary on the reports of Dr Russo. This was without the benefit of a further physical examination of the plaintiff since his examination on 13 February 2007. Dr Stephen agreed that a multidisciplinary approach should be taken to manage the plaintiff's pain as he felt there was a non-physical component. This report was not endorsed with the Expert Witness Code as required by UCPR r 31.23. The reasoning for Dr Stephen taking that view was not entirely apparent. 133On 27 September 2007, the Hunter Pain Clinic sent the workers' compensation insurer a request for approval of a plan for musculo-skeletal assessment of the plaintiff because at that stage the plaintiff had not yet returned to work. The aim of that assessment was to determine the nature and extent of the barriers preventing the plaintiff from returning to work, and to develop strategies to manage the plaintiff's further rehabilitation. The insurer approved the plan on 24 July (sic for September) 2007. 134On 2 October 2007, the plaintiff underwent a physiotherapy assessment following Dr Russo's request for a musculo-skeletal assessment. A physiotherapy functional upgrade plan was prepared on 5 October 2007 and this was approved by the workers' compensation insurer on 12 October 2007. 135On 22 November 2007, at the request of his solicitor, the plaintiff was seen by Dr Vijay Maniam, a consultant orthopaedic surgeon. Dr Maniam assessed the plaintiff to be an historian who presented without exaggeration or embellishment. Dr Maniam interpreted the plaintiff's 21 May 2007 thoracic bone scan to indicate this could reflect endplate compression injury. He considered the plaintiff's pre-existing thoracic osteoporosis as some form of hereditary condition related to calcium metabolism. Dr Maniam considered the absence of symptoms in the thoracic spine before the accident as indicative of the plaintiff's thoracic discomforts being due to the subject accident. 136On 23 November 2007, at the request of his solicitor, the plaintiff was examined by Dr Philippa Harvey-Sutton, a consultant occupational physician. In her subsequent report of the same date, Dr Harvey-Sutton described the plaintiff as having given his history in what she considered to have been a genuine and straightforward manner. She expressed reservation over whether the plaintiff will remain successfully employed. She placed significant work restrictions on the plaintiff's employment tasks and expressed a guarded prognosis. Dr Harvey-Sutton gave a supplementary report on 17 May 2012 to which I shall make reference in the course of this chronological review, and she also gave oral evidence, to which I shall also separately refer. 137On 3 December 2007, at the request of Dr Arain, another general practitioner in Dr Mehta's practice, the plaintiff underwent an x-ray of his right shoulder, which was reported as showing no evidence of acute bony abnormality. 138On 11 December 2007, at the request of his solicitor, the plaintiff was examined by Professor John de Burgh Norman, a consultant maxillo-facial surgeon. After conducting an examination and considering the plaintiff's complaints of facial pain and headaches, Professor Norman was of the opinion that, on the balance of probabilities, the plaintiff's facial and masticatory pain (myofacial pain) and associated temporomandibular joint dysfunction was aggravated by the subject accident. He expressed a guarded prognosis for that condition and suggested medical and splint therapies. 139On 14 December 2007, at the request of his solicitor, the plaintiff was examined by Dr David Bowers, a consultant specialist in rehabilitation medicine. After considering the plaintiff's history and examining him, Dr Bowers arrived at the diagnoses of pre-accident osteoporosis of the thoracic spine, fractures of T5 and T6 vertebrae in the motor vehicle accident, and musculoligamentous strains in the cervical and lumbar spines. He expressed the view that the plaintiff's history was consistent with him sustaining wedge fractures of the T5/6 level in the accident. Dr Bowers attributed all of the plaintiff's complaints to the subject accident. Dr Bowers issued a further report to which I shall make reference in the course of this chronological review. Dr Bowers also gave oral evidence to which I shall refer in a separate part of my analysis. 140On 14 February 2008, at the request of the workers' compensation insurer, the plaintiff was re-examined by Dr Kafataris, who advised the insurer that there had been some improvement in the plaintiff's condition. He expressed the view the plaintiff's underlying osteoporosis with vertebral fractures were likely to be a pre-existing phenomenon. Without undertaking a detailed explanation, Dr Kafataris expressed the view the plaintiff could return to work with restrictions on repeated heavy manual handling. From the terms of his report, Dr Kafataris seemed uncertain as to the nature of the plaintiff's pre-injury duties. 141This second report from Dr Kafataris did not make reference to the Expert Witness Code, as is required by UCPR r 31.23. Dr Kafataris stated that the plaintiff was fit for a return to a full shift of duties at his then current restrictions "at the next review". That opinion is difficult to understand, given it was expressed to be in prospective terms and was dependent upon events that had not yet taken place and could not be reasonably assumed. Dr Kafataris' opinion was based on a misapprehension of the nature of the plaintiff's pre-injury duties. He had assumed they did not involve repeated or heavy manual handling. For the reasons I have outlined earlier, and in these additional reasons, I consider that little weight should be placed on this opinion of Dr Kafataris. 142On 19 February 2008, at the request of his solicitor, the plaintiff was examined by Professor David Champion, a consultant rheumatologist. Professor Champion stated that the plaintiff's thoracic osteoporosis would have been a well established condition prior to the subject motor vehicle accident. Professor Champion took a careful history of the events of the accident and noted the plaintiff's dominant problem in the three months that followed, concerned acute pain in the low back, chest, thoracic region, amongst other matters. After considering other medical opinions and conducting his own examination, in which he noted that the plaintiff presented in a reasonable manner, Professor Champion stated that the pre-accident osteoporosis would have been a high risk factor for vertebral fractures. He thought the accident in question involved sufficient severity to have caused the vertebral compression pathology and subsequent chronic spinal pain and regional pain disorders. In noting that the absence of pre-accident radiographs precluded an analysis of certainty of connection between the compression fractures of the thoracic vertebrae, he nevertheless indicated that on the balance of probabilities, for the reasoning he identified, he felt it was more probable than not that there was such a connection in the case of the plaintiff's vulnerable spine. He expressed a pessimistic prognosis. 143On 19 March 2008, at the request of the workers' compensation insurer, the plaintiff was re-examined by Dr Stephen. He reiterated his earlier diagnosis of osteoporosis which predisposed the plaintiff to crush fractures of T4 and T5 as a result of the subject accident. He was of the opinion that these fractures had healed but had left the plaintiff with some "minor mechanical mid thoracic back pain" and some similar lumbar back pain. 144On 6 April 2008, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Sally Preston, a consultant rheumatologist. Dr Preston stated that it was possible that the plaintiff's spinal fractures may have pre-dated the accident. However, she acknowledged this was speculative because there was no documentation to confirm this. She concluded that the significant impact involved in the accident and the pre-existing osteoporosis could well have led to the thoracic fractures that were documented after the accident. Dr Preston emphasised that in view of the significant period of time between the plaintiff's accident and the presentation for medical advice, the connection between the accident (in respect of which the plaintiff complained of thoracic pain) was dependent upon the reliability of the history of the plaintiff. 145Dr Preston provided a number of supplementary commentaries on the plaintiff's motor vehicle accident and the plaintiff's subsequent thoracic problems. These were dated 14 May 2008, 15 May 2008, 10 September 2008 and 18 September 2008. The correspondence provided to Dr Preston, and which generated those further commentaries, was not tendered in evidence, and in those written commentaries, it was not entirely clear as to what questions or assumptions had been presented to Dr Preston for comment. 146On 14 May 2008, Dr Preston considered the handwritten letter from Dr Goodman dated 11 April 2006, and the material from the chiropractor. She then stated this material did not alter her earlier expressed view. She reiterated that the material did not provide evidence that the plaintiff's spinal fractures pre-existed the accident. 147On 15 May 2008, Dr Preston made an additional comment on whether the plaintiff's thoracic fractures were likely to have pre-existed the accident. The effect of her comment was that the plaintiff's bone scan of May 2007, and the thoracic x-ray of September 2006 should be reviewed by a radiologist with special interest in musculoskeletal conditions. She nominated Dr John Korber for this purpose, a matter to which I shall later return in my analysis of the MAS certificates. 148On 11 June 2008, at the request of Dr Mehta, the plaintiff underwent MRI scanning of his thoracic spine by Dr Colin Walker. His commentary was that there were fractures of T5, T6 and T7, probably of longstanding, with no evidence of subacute fracture of T8. The terms "longstanding" and "subacute" were not defined in the report. 149On 17 June 2008, at the request of Dr Mehta, Dr Walker performed an ultrasound study of the plaintiff's right shoulder, which revealed an 1mm x 6mm area of chronic tendinopathy of the mid-third supraspinatus tendon of that shoulder. 150On 10 July 2008, Dr Mehta wrote to the workers' compensation insurer to report on the plaintiff's current condition at that time. She advised of the need for the plaintiff to have restrictions placed on his ability to work. In this report, which answered questions that had been put to her by the insurer, Dr Mehta stated her belief that the plaintiff's current condition could be directly attributed to the vertebral fractures sustained as a result of the motor vehicle accident on 24 August 2004. 151On 12 August 2008, at the request of the workers' compensation insurer, the plaintiff was re-examined by Dr Stephen, who did not change his earlier expressed diagnosis. 152On 10 September 2008, after reviewing the report of Dr Korber dated 7 May 2008, in which she referred to Dr Korber as having noted the possibility that the plaintiff's compression fractures occurred in the accident in circumstances where the plaintiff had an osteoporotic spine, Dr Preston stated that the new material did not substantially alter the views she had expressed in her earlier reports. I shall shortly return to the analysis of the opinion of Dr Korber in connection with my review of the Medical Assessment Certificates. 153Dr Preston ended this particular commentary by stating that the plaintiff was at an increased risk of developing a compression fracture associated with trauma. She also raised a number of other possibilities that involved speculation for which there was no evidence, including the possibility of spontaneous compression fractures in the absence of trauma, which she postulated could have occurred at any time, including prior to the motor vehicle accident. 154On 18 September 2008, in response to a facsimile communication from the solicitor for the defendant, which was not tendered in evidence in these proceedings, Dr Preston considered the notes of the chiropractor, Mr Angelopoulos. She stated that having regard to the degree of osteoporosis (which I interpolate was first noted on 25 September 2006) the plaintiff would have been at increased risk of development of crush fractures during chiropractic manipulation of his back. She proffered this view as a possible explanation for the time lag between the motor vehicle accident and the plaintiff presenting for medical review, this being the first thoracic imaging scan taken in September 2006. 155There was no evidence that Dr Preston was made aware of the degree of physical force used in the chiropractic manipulations that Mr Angelopoulos described as "gentle". Without evidence, it cannot be inferred that it is an integral part of the training and experience of a rheumatologist that she could have knowledge relating to the force used in manipulative therapy in that non-medical discipline. I shall shortly return to an evaluation of Dr Preston's evidence in connection with the evaluation of her oral evidence. 156On 18 February 2009, at the request of the plaintiff's solicitor, Dr Kwong reassessed the plaintiff. He reiterated his earlier diagnosis and guarded prognosis, including for a reactive depression. 157On 18 April 2012, at the request of his solicitor, the plaintiff was further examined by Dr Kwong, who reiterated his earlier opinions and confirmed his view that the fractures sustained by the plaintiff in his thoracic spine were as a consequence of the motor vehicle accident. 158On 27 April 2012 Dr Bowers provided a supplementary report in which he considered the other reports to which he was referred, and noted his disagreement with the opinion of Dr Best, a MAS Assessor, whose opinion is referred to later in these reasons. He concluded that none of the materials to which he had been referred served to alter his previously expressed opinions. He referred to the plaintiff's contemporaneous complaints of pain, and the plaintiff's ongoing symptoms as pointers to the connection between the subject motor vehicle accident and the thoracic complaints, noting the absence of any such complaints beforehand. He re-confirmed his earlier expressed view that the plaintiff's thoracic spine fractures were due to the subject motor vehicle accident. I shall shortly refer to the oral evidence given by Dr Bowers in clarification of his reports. 159On 2 May 2012, at the request of the solicitor for the plaintiff, Dr Russo provided a commentary letter following the supply of further materials to him for his consideration. He reiterated his opinion that the plaintiff suffered thoracic wedge compression fractures at the time of the high speed motor vehicle accident on 24 August 2004. He based that opinion, in part, on the 25 September 2006 imaging of the plaintiff's thoracic spine, which showed the thoracic wedge compression fractures localised to just two vertebrae, as well as a diffuse multiple level fractures typical of osteoporosis occurring spontaneously. 160Significantly, Dr Russo stated that the high speed impact was exactly the type of kinetic energy required to produce a traumatic compression fracture in the plaintiff's thoracic spine. In support of that opinion, Dr Russo also referred to the plaintiff's immediate complaints of thoracic pain, which was consistent with the observed compression fracture. 161Dr Russo also considered that the osteoporosis was confirmed on the basis of combined heavy cigarette and marijuana intake. Those matters were not explored in detail in the evidence. Whatever the cause of the plaintiff's osteoporosis, the causation principle which the defendant must accept is that he must take the plaintiff as he finds him, pre-existing vulnerabilities included: Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, at [18]. 162On 3 May 2012 Professor Norman provided a supplementary report in which he noted that Dr Kwong and Professor Champion had also commented upon the plaintiff's temporomandibular joint dysfunction. Professor Norman saw no reason to alter his previously expressed view concerning the plaintiff's temporomandibular joint dysfunction and the relationship of that condition to the subject accident. 163On 7 May 2012, at the request of the solicitor for the plaintiff, Dr Conrad reviewed his earlier reports in view of the additional materials that had been sent to him for comment. Those materials were identified as being the 84 items listed in the schedule which Dr Conrad had annexed to his report. In essence, Dr Conrad challenged the credibility of the methodology of some of the medico-legal opinions served by the defendant; Exhibit "C", Tab 9. He stood by the earlier conclusions he had expressed in his earlier reports. This is a matter that shall be revisited in connection a consideration of the interim relief sought by the plaintiff. 164On 14 May 2012, Dr Maniam provided a supplementary report in which he confirmed the plaintiff had an underlying pre-accident osteoporosis and concluded this made him prone to the fractures later discovered on imaging. He said the forces involved in the accident were sufficient to create the thoracic fractures. 165On 15 May 2012, at the request of the solicitors for the defendant, Dr Stephen was asked to consider "further extensive documentation provided which filled two full folders". That material was not fully identified. Dr Stephen summarised the position as follows: "I made a diagnosis of minor crush fractures of T4 and T5 and possibly T6, which were predisposed to by his osteoporosis. I considered Employers Mutual remained liable for the management of his claim with respect to his thoracic spinal injury. The reason for this was that although there was predisposing osteoporosis, the motor vehicle accident of 24 August 2005 did result in crush fractures. I considered that Mr De Gelder had multilevel structural compromise and was therefore DRE Thoracic Category IV. This equated to 20% Whole Person Impairment. Of this Whole Person Impairment, three quarters resulted from his pre-existing condition of osteoporosis. His osteoporosis incidentally was under treatment, particularly with bisphosphonates, under the supervision of an endocrinologist, Dr Epstein, and had improved. When last I saw Mr De Gelder in August 2008 he had improved symptomatically, both physically and emotionally. He had much less in the way of thoracic and low lumbar backache and his depression had improved considerably as had his sleep pattern. He had obtained work and was then working 25 hours a week assembling repairing and selling bicycles (his trade was that of a sheet metal worker). I have not seen Mr De Gelder now for almost four years." 166Dr Stephen then referred to the MAS report of Dr Best dated 28 January 2009, which he summarised as follows: "Dr Best considered that wedging of the T5 and T6 (or T4 and T5) not linked to the subject motor vehicle accident. He said the rear end collision would cause a hyperextension and not a compression injury to the thoracic spine. He also points out that Mr De Gelder has been involved in other motor vehicle accidents and has had many chiropractic manipulations of the spine carried out in the presence of osteoporosis. Consequently, on the basis of thoracic spine having sustained a soft tissue injury rather than fracture, he assigned a zero percent Whole Person Impairment to the thoracic spine." 167On the question of whether the additional material from Dr Best and the other undescribed materials had caused Dr Stephen to alter his previously expressed opinion, Dr Stephen stated: "Concerning the nature of a rear end collision (sic) is certainly true that the primary force is from behind. Nevertheless, there it is common for occupants of a car to describe forward flexion as well, presumably because of braking of the vehicle after the accident. It was this that caused me to consider that, on the balance of probabilities, in the presence of osteoporosis, and certainly not in the presence of normal bone density, this type of fracture could have occurred. It was because of the osteoporosis when assessing WPI that I put a heavy emphasis on the contribution of the osteoporosis (three quarters) and a much less emphasis on the motor vehicle accident itself (one quarter). This would amount to 5%. Dr Best puts forth another possible reason for the development of wedging, that is repeated chiropractic manipulations, some of which were painful, in the presence of osteoporosis. This could quite easily produce such compression. This compression was first noticed in plain x-rays dated September 2006. By this time, Mr De Gelder had had many chiropractic visits and manipulations. According to Dr Best there was spinal manipulation performed on each occasion. The other motor vehicle accidents that Mr De Gelder was involved in do not appear to have produced any long standing back pain. The work incident of 30 November 2005 produced sharp low lumbar back pain. Looking at the history that I took initially, Mr De Gelder did complain of back pain, including thoracic back pain, from the time of the motor vehicle accident of 24 August 2005 whilst on the Pennant Hills ramp. Dr Best's report has raised doubts in my mind concerning whether or not the motor vehicle accident produced the compression fractures of T4 and T5. These doubts are not based on the mechanism of injury, which I still believe to be able to produce compression fractures in an osteoporotic individual, but rather the history of repeated and sometimes painful chiropractic manipulations in the presence of osteoporosis. The latter are my opinion (sic) equally likely, perhaps more likely, to have produced back compression fractures than the motor vehicle accident itself. It remains my opinion however that the major reason for the compression fractures was the presence of underlying severe osteoporosis so that such fractures would not have occurred in a non-osteoporotic individual either as a result of the motor vehicle accident or as a result of chiropractic manipulations." 168The additional opinion of Dr Stephen which seeks to inculpate the chiropractic manipulations as the "more likely" cause of the plaintiff's thoracic compression fractures is based on the unproven assumption that the plaintiff had "repeated and sometimes painful chiropractic manipulations" in the presence of osteoporosis, the emphasis being on the "painful" component of that assumption. 169The plaintiff did not describe the chiropractic manipulations as having been painful. In view of the opinion of Dr Preston to the effect that the fractures seen in the plaintiff's spine would have been expected to have been acutely painful when they occurred (T611.47), taken together with the fact there was no evidence of painful manipulations fitting that description, this leads me to conclude that the basis of Dr Stephen's altered view is not borne out by the facts, and is therefore untenable, and should not be accepted. 170On 17 May 2012, Dr Harvey-Sutton provided a supplementary report in which she addressed the question of whether it was probable that the plaintiff had sustained fractures to his thoracic spine as a consequence of the motor vehicle accident. In the course of addressing that question she reviewed the opinions of Dr Conrad, Dr Maniam, Dr Bowers, Dr Preston, Dr Epstein, Dr Ostinga, Dr Stephen, Dr Graham, the MAS Review Panel (comprising Dr Gibson, Dr Selby-Brown and Dr Fearnside), and the opinions of Dr Maxwell and Dr Best. 171Dr Harvey-Sutton noted that wedging/compression of thoracic vertebral bodies is not an uncommon finding in asymptomatic people, with or without osteoporosis. She also noted that in many instances of motor vehicle accidents, where there is wedging/compression, this does not translate to a fracture. 172Nevertheless, it was Dr Harvey-Sutton's considered opinion that, in view of the history of the discrete event of the accident and the plaintiff's description of his difficulties in working, led her to the view that the scales of probability were tipped in favour of causation as argued on behalf of the plaintiff, and that it was therefore more likely than not that the plaintiff's thoracic fractures were related to the subject motor vehicle accident.

Medical Assessment Certificates 173I now turn to an examination of the sequential Medical Assessment Certificates that have been issued in relation to the plaintiff. 174In the paragraphs that follow, I set out and trace the chronology surrounding the issue of the 5 Medical Assessment Certificates that were tendered, and which underpin the plaintiff's application for remittal back for a further MAS assessment. 175The first such certificate was that of Dr Ostinga, which was obtained for WorkCover purposes, since the plaintiff was injured on a journey home from his work. The second such certificate was from Dr Vickery, which did not raise any controversial issues. The third such certificate was from Dr Graham, which supported the plaintiff's contentions for a WPI of greater than 10 per cent. The fourth such certificate was from the MAS Review Panel which confirmed Dr Graham's WPI assessment. The fifth such certificate, from Dr Best, which assessed the plaintiff's WPI to be zero, thus disentitling the plaintiff to any claim for non-economic loss, a conclusion which is challenged by the plaintiff. 176In these reasons it is not relevant to either set out or consider the satellite litigation between the parties that was pursued in the Supreme Court and in the Court of Appeal where the parties sought to, variously, overturn or confirm, aspects of the administrative procedures under the MAC Act associated with those certificates. I have identified that litigation at paragraph [9] above. 177That said, it is relevant to critically examine the manner in which the certificate of Dr Best was procured and issued. It is also relevant to examine the terms of that certificate and the material that underpins it, as the subject matter and content of that certificate has provoked much controversy in these proceedings.

WorkCover Certificate of Dr Kim Ostinga - consultant orthopaedic surgeon 178The first Medical Assessment Certificate tendered in the proceedings, albeit a WorkCover certificate, was from Dr Kim Ostinga, a consultant orthopaedic surgeon. It was dated 28 January 2009. In that certificate, which was not a MAS certificate, Dr Ostinga noted that the plaintiff had suffered fractures to 3 of his thoracic vertebrae. After applying the applicable WorkCover guides which he identified, Dr Ostinga certified the plaintiff to have incurred a WPI of 22 per cent. The plaintiff tendered that certificate to form part of the medical evidence in the proceedings. 179In making his assessment, Dr Ostinga stated that it must be accepted, although the plaintiff had osteoporosis, there was no indication of the severity of that osteoporosis. Dr Ostinga stated that compression fractures can occur in the case of accidents of this type without the presence of osteoporosis. In light of subsequent events, the terms of this certificate proved to be prescient.

MAS Certificate of Dr Graham Vickery - consultant psychiatrist 180The second Medical Assessment Certificate tendered in the proceedings was from Dr Graham Vickery, a consultant psychiatrist. Dr Vickery examined the plaintiff on 24 September 2007. Dr Vickery certified that the plaintiff had experienced an Acute Adjustment Disorder with Depression following the motor vehicle accident, conditions which he said, had resolved with treatment. Dr Vickery stated that at the time of his certificate, the plaintiff had no diagnosed psychiatric disorder related to the motor vehicle accident. The plaintiff tendered that certificate as part of the medical evidence in the proceedings. No controversy arose from this certificate as it clearly related to an assessment in 2007, and was obviously overtaken by other events. 181It is a coincidence that Dr Vickery had examined the plaintiff on 19 August 1996 at the request of Dr Mehta, some 9 years before the subject accident: Exhibit "C", Tab 4, page 29. Dr Vickery had seen the plaintiff at that time for stress and anxiety issues arising from a previous relationship as well as in relation to work stresses and issues that arose from the deaths of his brother, father and grandparents. There were no follow-up reports between 1996 and 2005 indicating that any of those problems continued to affect the plaintiff. On the contrary, his work history and his subsequent stable marriage would suggest otherwise.

MAS Certificate of Dr John Graham - consultant in occupational medicine 182The third Medical Assessment Certificate tendered in the proceedings was from Dr John Graham, an occupational medicine consultant. He examined the plaintiff for that purpose on 10 October 2007. Dr Graham diagnosed the plaintiff as having osteoporotic fractures of the vertebral bodies at the levels T4 and T5, and chronic lumbar spinal pain, possibly related to osteoporosis. The plaintiff tendered that certificate as part of the medical evidence in the proceedings. 183In arriving at the above conclusions, Dr Graham acknowledged that the plaintiff's claim revealed significant issues on causation. In his assessment, Dr Graham accepted the plaintiff's history that he had been asymptomatic in both regions prior to the accident, and he noted that the plaintiff had pre-symptomatic osteoporosis at the date of the accident. He considered that condition would have predisposed the plaintiff to vertebral end plate fractures, which may not have been evident on x-ray, and vertebral compression fractures, which he had expected would have been evident on a viewing of x-rays. 184Dr Graham accepted the plaintiff's history that he had been experiencing persisting symptoms from the thoracic spine from the date of the accident, with no other injuries intervening to the time of his examination. Dr Graham determined that the plaintiff continued to suffer from the effects of his thoracic injury so as to give rise to a 20 per cent WPI assessment. 185Dr Graham based those views on radiological evidence of the vertebral bodies at two levels in the plaintiff's thoracic spine, and upon the plaintiff's account of his experience of chronic pain. Dr Graham discounted, and had made no deduction for, any presumed pre-existing impairment to the thoracic spine. He stated that the WPI assessment of the impairment to the plaintiff's thoracic spine of 20 per cent was caused by the motor vehicle accident in question. 186Dr Graham was of the view that the plaintiff had recovered from the low back injury sustained in the motor vehicle accident on 24 August 2005 (sic for 2004) as at the date when he experienced a further injury to the low back on 30 November 2005, which involved the plaintiff bending forward in preparation for pushing an air-conditioning unit into the back of a vehicle, thereby suffering low-back pain. 187As the certificate of Dr Graham was that the plaintiff had a WPI of greater than 10 per cent, absent subsequent disentitling events, if that certificate remained in force, it would have permitted the plaintiff to claim damages for non-economic loss in these proceedings. However, the CTP insurer disputed Dr Graham's certificate and subsequently requested that a MAS Review Panel review the certificate issued by Dr Graham.

MAS Review Panel Certificate - Dr Gibson, Dr Selby-Brown, Dr Fearnside 188As a result of that dispute, on 8 October 2007, at the request of the CTP insurer, the plaintiff was further assessed by a MAS Review Panel. That Review Panel comprised Dr Margaret Gibson, Dr Colin Selby-Brown, and Dr Michael Fearnside, all well qualified and respected experts. This was the fourth Medical Assessment Certificate tendered in the proceedings by the plaintiff. 189That Review Panel viewed the imaging films of the plaintiff's spine. Two of the panel members also carried out an examination of the plaintiff. Following that examination, for the purposes of forming their joint opinion, the Review Panel determined that they required further assistance in the form of a specialist radiological opinion from Dr John Korber, prior to making their own determination. 190The Review Panel cited Dr Korber's subsequent opinion that the plaintiff "definitely has definite anterior compression fractures of T5 and T6. There is a compression fracture of T8. This may or may not represent a fracture. The dimensions of the T5 fracture are 13/6 (19% compression); and the T6 fracture 11/17 (35% compression)." 191Dr Korber's cited opinion on the imaging films was identified as being to the effect that the plaintiff's spine appeared to his eyes, to be demineralised, which raised the possibility of spontaneous compression fractures. Dr Korber was cited by the MAS Review Panel as saying that it was certainly possible that there could have been spontaneous compression fractures in the plaintiff's osteopoenic spine in a motor vehicle accident. The Review Panel cited Dr Korber's opinion that these compression fractures would probably have been symptomatic if they had occurred at the time of the motor vehicle accident. 192The formal report of Dr Korber, which, unlike all of the MAS reports, acknowledged the Expert Witness Code, was dated 7 May 2008. It was addressed to the Medical Assessment Service. It was stated to have been based only on his review of the 8 sets of radiological films he had listed on pages 1 and 2 of his report, without the input of any medico-legal reports or clinical notes. Dr Korber explained that this was said to be the most advisable method of radiological review: Exhibit "T". 193The Review Panel considered the range of opinions on the matter of whether the injury to the plaintiff's thoracic spine was caused by the motor vehicle accident, noting that the issue of causation was quite contentious. 194After considering the respective causation arguments, the Review Panel concluded that the injury to the plaintiff's thoracic spine had in fact been caused by the motor vehicle accident. In coming to that view, the Review Panel agreed with the original assessor, Dr Graham. They also agreed that the plaintiff's WPI assessment should be rated at 20 per cent. 195The Review Panel revised the original assessor's view as to whether the lumbar spine was injured in the motor vehicle accident, and concluded that in the accident, there had been an injury to the plaintiff's lumbar spine, which had not resolved, but, which had settled, but was nevertheless unlikely to further remit in its intensity. 196The Review Panel ultimately determined that in the motor vehicle accident, the plaintiff had suffered anterior compression fractures in the thoracic spine at the levels T5 and T6, as well as soft tissue injuries to the lumbar spine. They certified that all such injuries had stabilised. 197The Review Panel's Certificate arising from that assessment was dated 2 June 2008. On its face, the Certificate was stated to be a new Certificate in substitution for the certificate that had earlier been issued by Dr Graham.

Material provided to defendant by Dr Maxwell, orthopaedic surgeon 198In response to the Certificate issued by the Review Panel, and on a date that was not specified in the evidence, the solicitor for the defendant engaged Dr David Maxwell, an orthopaedic surgeon, to provide a commentary in which he stated his opinion that the plaintiff had not suffered compression fractures as a result of the motor vehicle accident in question. Remarkably, that commentary was prepared by Dr Maxwell without having had the benefit of any personal interview with, or examination of, the plaintiff. Dr Maxwell's commentary was contained in a 7-page letter that was dated 22 September 2008. The defendant sought to tender that letter. For reasons that I had set out in a separate judgment given during the course of the hearing, the tender of that letter was rejected on multiple grounds: 20 June 2012: T394.23-32 and ex-tempore reasons dated 20 June 2012. 199Shortly stated, those reasons were that Dr Maxwell's letter dated 22 September 2008 was not based on any examination of the plaintiff by Dr Maxwell. Instead, it was based on Dr Maxwell's review of largely unspecified papers and notes that had been provided to him by the solicitor for the defendant. The letter from Dr Maxwell did not refer to or comply with the Expert Witness Code. Notwithstanding that Dr Maxwell's letter criticised the radiological opinion of Dr Korber, where Dr Korber's opinion was based upon his expert review of the radiology films of the plaintiff's spine, it was apparent that little or no probative value should reasonably attach to Dr Maxwell's stated views and criticisms because he had not himself reviewed that radiological material that had been examined by Dr Korber. Accordingly, the tender of the letter from Dr Maxwell dated 22 September 2008 was rejected: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705; Dasreef Pty Ltd v Hawchar [2011] HCA 21. 200The defendant also sought to rely upon a further short report from Dr Maxwell, dated 1 May 2012. That letter had apparently resulted from a telephone conversation between the solicitor for the defendant and Dr Maxwell, in which Dr Maxwell stated that he would provide what he referred to as some peer reviewed papers indicating that there were other causes, presumably non-traumatic causes, for wedging of thoracic vertebral bodies shown on plane x-ray, CT scans and MRI scans. It is important to note at this point that Dr Maxwell's reference to what, was evident within x-rays was in the abstract, and not in any way connected to the imaging of the plaintiff's spine. This was because Dr Maxwell had not seen any of those images. 201Although this particular report from Dr Maxwell was objected to, I took the view that since it contained an acknowledgment of the Expert Witness Code, it satisfied the threshold test of admissibility, and should therefore be received into evidence in order that it could be evaluated along with the other medical reports and opinions that were relevant to the causation issue. I shall return to the content of that report in connection with my evaluation of the medical evidence when identifying my interim conclusions on the cause of the plaintiff's thoracic compression fractures. 202Although out of chronological order, it is relevant to here deal with a third letter the defendant obtained from Dr Maxwell on 18 May 2012, and on which the defendant also sought to rely. 203This third letter had apparently been requested by the solicitor for the defendant after having earlier sent Dr Maxwell a letter of request or instruction, dated 7 May 2012. That letter of instruction from the defendant's solicitor was not tendered in evidence in the proceedings. However, from the content of Dr Maxwell's resultant commentary, it can be inferred that Dr Maxwell had been provided with a copy of a report dated 23 March 2012 from the plaintiff's treating chiropractor in respect of treatment that had commenced on 2 December 2005. The terms of the letter from Dr Maxwell also indicated that by this time he had also been provided with copies of x-rays and CT scans of the plaintiff's spine, as well as copies of reports from the other experts whose reports were in evidence. 204In his letter to the solicitor for the defendant, Dr Maxwell concluded as follows: "These x-ray films conclusively prove that the wedging of T5 is physiological with no evidence of a compression fracture on the CT scan and the wedging at T6 is due to a developmentally short vertebrae secondary to an abnormality of ossification at the end plate. These studies do not cause me to alter my previously expressed opinion based on the examination of the notes on Mr De Gelder. There is no evidence either clinically or radiologically that he sustained compression fractures of T5 and T6 (previously called T4 and T5 by Dr Mehta). This case indicates the folly of making a diagnosis of compression fractures on radiological appearances without taking into account the clinical situation or the other causes of wedging of vertebrae." 205Dr Maxwell's radiological qualifications for making the cited statements were not the subject of evidence. Assuming that such qualifications were, at least to a threshold degree, self-evident from the fact that he was a legally qualified medical practitioner, nevertheless, save for the fact that on this occasion, he had in fact examined some radiological films, the tender of Dr Maxwell's letter dated 18 May 2012 was rejected for the similar reasons that resulted in the tender of his letter dated 22 August 2008: See paragraph [199] above. 206I shall return to examine these views in conjunction with the review of the radiological opinion of Dr Korber in the course of identifying my interim conclusions on the cause of the plaintiff's compression fractures. 207In the meantime, I make the observation that it appears from the foregoing chronology of events, that Dr Maxwell's views on the cause of the plaintiff's compression fractures had provided impetus for the solicitor for the defendant to seek a further MAS assessment of the plaintiff.

MAS Certificate by Dr Trevor Best - consultant orthopaedic surgeon 208The fifth Medical Assessment Certificate tendered in the proceedings was that of Dr Trevor Best, a consultant orthopaedic surgeon. That certificate was tendered by the defendant. The effect of Dr Best's MAS certificate was to declare that the earlier described radiological findings, including the wedging of the plaintiff's thoracic vertebrae, were not caused by the motor vehicle accident in question. 209The conclusions of Dr Best, as set out in his certificate dated 28 January 2009, are at the heart of the plaintiff's application for a further MAS assessment, now consented to by the defendant. 210The plaintiff claims that the Certificate of Dr Best has been arrived at by means of a flawed and invalid process of reasoning, based upon Dr Best's acceptance of material that is plainly not admissible in these proceedings, and which should not be accepted as providing a proper or sound basis for arriving at a causation finding in these proceedings. 211It is therefore necessary to examine how Dr Best arrived at his stated views, including identifying the materials upon which those views were based. 212Dr Best carried out a physical examination of the plaintiff on 28 January 2009. Dr Best considered the views that had been set out in the earlier MAS certificates of Dr Graham and those of the subsequent Review Panel, in which those certificates determined that the plaintiff's wedge deformities at T5 and T6 were related to fractures suffered at the time of the subject accident. Dr Best stated that such conclusions were wrong. 213Dr Best then referred to some additional documentation which is not relevant to here review, and then, at page 13 of his report, he identified the basis of his views that were in disagreement with the previous certificates, as follows: "There is an additional report of Dr Maxwell (orthopaedic surgeon) dated 22 September 2008 which suggests that the mechanism of injury is not compatible with the production of compression fractures in the thoracic spine." 214This latter statement, which was not a reasoned conclusion which weighed and counterbalanced competing considerations, was the subject of some considerable controversy on the medical evidence in these proceedings, a matter to which I shall return. 215Dr Best then proceeded to set out his conclusions concerning the diagnosis and causation of the plaintiff's complaints in his cervical, thoracic and lumbar spines, and his other injuries. Relevant to the thoracic osteoporosis issue under present consideration, Dr Best's diagnostic conclusions on the plaintiff's thoracic spine problems was expressed in the following terms: "(2) Thoracic Spine Mr De Gelder has been aware of moderate pain in the lower thoracic region and the upper lumbar region since the subject motor vehicle accident. (He describes this as pain in the "torso"). His lower thoracic back pain has persisted subsequently to the present time and appears to have increased in severity during the period of treatment from the chiropractor which was in the form of regular spinal manipulation. Today, Mr De Gelder had continuing tenderness at the T9/10 level of the thoracic spine. However, there are no signs of asymmetry of thoracic spine movement and no radicular symptoms. Therefore, according to the AMA Guides - 4th Edition in association with the Motor Accident Guidelines Mr De Gelder qualifies for Category DRE I in respect of the thoracic spine injury. There is wedging of the bodies of T5 and T6 of the thoracic spine. However, there is no evidence to connect this wedging with the subject motor vehicle accident. This wedge appearance can be developmental, it can occur slowly and spontaneously in osteoporosis and it can be related to compression injury producing compression fractures. However, there is no evidence to link this latter cause, either radiological or clinical with the subject motor vehicle accident. There is no evidence to say that the wedge deformity has, in fact, been caused by compression fractures. The claimant's tender area is at T9/10 today. The motor vehicle accident involved the claimant's vehicle being struck from the rear and this would cause a hyperextension injury and not a compression injury to the thoracic spine. It is noted in this respect that the claimant has been involved in many motor vehicle injuries other than the subject motor vehicle accident and has had many manipulations of the spine carried out (in the presence of osteoporosis)." [Emphasis added] 216Having taken the view as stated above, using the impairment guides, Dr Best then proceeded to assess the plaintiff's level of WPI to be at 0 per cent. 217It is that assessment which the plaintiff wishes to have reassessed. Notwithstanding that on a first blush consideration, it seems compelling that the 0 percentage impairment arrived at by Dr Best was flawed, because it involved the application of guidelines used by medical assessors, it is considered inappropriate for a court to undertake the further assessment using those guidelines. 218The opinions of Dr Best as outlined above, and the opinions of Dr Maxwell which seem to have founded Dr Best's opinion, stand to be analysed for acceptance or rejection according to the reasoning within those reports. I shall return to that analysis in identifying my interim conclusions on the cause of the fractures to the plaintiff's thoracic spine.

Consideration of the oral evidence from medical experts 219Before addressing the causation issue I consider it would be helpful to first examine the opinions of those doctors who gave oral evidence, and whose opinions were tested in cross-examination.

Dr David Bowers - consultant rehabilitation specialist 220On 14 December 2007 the plaintiff was examined by Dr David Bowers, a rehabilitation specialist. Dr Bowers provided expert reports dated 14 December 2007 and 27 April 2012. He also gave evidence on the 10th day of the hearing. Dr Bowers stated that in the case of persons having osteoporosis of the spine, there is an increased risk of spinal fracture: T640.28 to T640.32. 221He also agreed that in the case of persons with severe osteoporosis, fractures of the thoracic spine could develop without trauma, including with the normal activity of walking, or even with no activity: T641.9 - T641.17; T646.50. He added that there is a small risk of compression fractures in an osteoporotic spine due to physical activity: T648.3. He also stated that in the context of impact from a motor vehicle accident, causation of such traumatic fractures can occur from impacts involving both high and low impact speeds: T641.37 - T641.44. This piece of expert evidence was not contradicted, and appears to be of critical importance to any causation analysis. 222When Dr Bowers was asked to consider the potential for chiropractic manipulations to have had a causative role in the development of thoracic compression fractures in an osteoporotic spine, he was of the opinion that the risk of that happening was very small, and was an unlikely cause of thoracic fractures, given the nature of the chiropractic treatment the plaintiff had received: T643.11; T643.47. This was consistent with the evidence given by the plaintiff on the subject of the nature of the chiropractic treatment he had received, taken together with the fact that there was no evidence of painful episodes that occurred during such chiropractic treatment that were suggestive of fractures having occurred, which was the inference to be drawn from the evidence of Dr Preston that such fractures would have been expected to have produced acute pain at the time: T611.47. 223Dr Bowers stated that the plaintiff had complained to him of having had thoracic pain since the day of the accident. In giving that evidence, Dr Bowers did not discount the possibility that the accident had caused an undisplaced fracture of the thoracic spine in the accident, which became increasingly more crushed and painful with the passage of time: T643.33. 224In considering the question of whether the plaintiff's thoracic compression fractures occurred at the time of the accident, he stated that the sites of the fractures need not have been the site of acute and disabling pain, as this depended upon how much muscular injury was sustained in other areas of the spine, but he acknowledged that generally, the site of fracture would be the site of most pain: T652.14 - T652.22. 225At T660.1 - T660.9, Dr Bowers described the healing process associated with compression fractures, as follows: "... A. Well it can vary with this type of condition, one can get increasing amounts of crushing at the fracture site over months and years after the initial accident but generally a bony fracture one would expect to have healed within six to 12 months after an accident. A patient with an osteoporotic spine it might be a little bit longer but Dr Steven had seen the patient some years after the accident. Presumably he saw follow-up X-rays which showed no further crushing and then he's gone on to say "Oh this is now healed". That's reasonable." 226At T662.47 - T663.14, in re-examination, on the causation question, Dr Bowers gave the following evidence: "Q. Given then the history of pain following the car accident in the thoracic spine, do you consider that that is a much more likely explanation than the putative spontaneous fracture or fracture in the course of manipulations when there was not such a specific acute episode of pain? A. Well I think Mr Degelder was working until the day of the accident, had an accident of not insignificant impact speed, it was recorded that he complained of pain in the thoracic spine the day after the accident, had ongoing complaints after that time reported by different people and then at a later stage had chiropractic treatment in which he was laid on his side, not in a prone or other position, then in my mind it's more likely that the motor vehicle accident has caused the fractures. Q. Just one other question in that area, if one has thoracic vertebrae that are so vulnerable, so affected by osteoporosis that they are in theory at least liable to fracture spontaneously, would that be the kind of spine that would be very likely to fracture given the kind of forces to which it would be subject in a rear end collision? A. Yes." 227That evidence was not contradicted by other expert evidence. It was not glaringly improbable or inherently unlikely. In this regard, in comparison, I do not consider that the cited opinion of Dr Best had probative value. This is so because it was not expert evidence of the kind contemplated by UCPR r 31.23, and it was not amenable to be tested, as was the evidence of Dr Bowers, Dr Harvey-Sutton and Dr Preston, whose reports were issued in compliance with the Expert Witness Code. Therefore, I consider that the opinions expressed by Dr Best should be afforded less weight. 228Furthermore, the opinions of Dr Bowers and the other experts who gave evidence were based on a required process of reasoning, as distinct from Dr Best's simplistic and unexplained opinion that rear-end collisions would cause a hyperflexion injury and not a compression injury to the thoracic spine, as is claimed.

Dr Philippa Harvey-Sutton - consultant occupational medicine specialist 229On 15 November 2007, at the request of his solicitor, the plaintiff was examined by Dr Philippa Harvey-Sutton, a consultant occupational physician. Her reports which followed that examination, were dated 23 November 2007 and 17 May 2012. 230Dr Harvey-Sutton's views as to the cause of the fractures in the plaintiff's thoracic spine coincided with the views expressed in the report and Certificate of the Review Panel: T580.33. 231Dr Harvey-Sutton considered that the relationship between the plaintiff's pre-accident underlying thoracic osteoporosis to be akin to the so-called egg-shell skill paradigm: T583.20; T587.3. She placed significant reliance upon the radiological opinions of Dr Korber generally, when it came to the interpretation of radiology scans: T583.40. 232Dr Harvey-Sutton agreed that in the case of an underlying osteoporotic spine, the development of fractures to the thoracic spine could occur with the application of even mild stress, or even without trauma: T585.45; T586.24. 233As I interpret her evidence, Dr Harvey-Sutton was of the view that the plaintiff was a stoic type of individual who continued on with his work despite his experience of the pain he experienced at the time of the accident: T590.35; T591.40. Dr Harvey-Sutton invoked that concept as a likely explanation for the plaintiff not taking time off work due to pain in his thoracic spine in the period following the accident. That impression coincided with my own assessment of the plaintiff's evidence. 234Dr Harvey-Sutton did not agree that if there had been traumatic fractures of the thoracic spine at the time of the accident, there would necessarily have been some accompanying disabling pain: T591.37. 235Dr Harvey-Sutton explained that her opinion on the causation issue was provided after she had undertaken a carefully considered deliberation in which she felt that the balance of probabilities was tipped in favour of causation as was first found by Dr Graham: T591.7; T683.49. She gave that opinion as a considered view, noting that she accepted the issue of the causation of the fractures was contentious: T695.1 - T695.9. 236Unlike Dr Maxwell, Dr Harvey-Sutton was not prepared to speculate on the nature of the chiropractic treatment received by the plaintiff: T672 - T673. 237On the causation question, I considered an important aspect of Dr Harvey-Sutton's evidence was her agreement with the proposition that in the context of injury to the spine, if pain occurs it may be an indicator of a fracture: T693.30.

Dr Sally Preston - consulting rheumatologist 238In her oral evidence, Dr Preston appeared to change the views she set out in her reports. She said that at the time she had prepared her report, she thought the plaintiff's spinal symptoms, which I took to refer to the thoracic symptoms, could have been related to the accident in question, but subsequent information had caused her to cast doubt upon whether the plaintiff had actually sustained his thoracic fractures in the accident: T609.30. The subsequent information appeared to have comprised further reports provided to her. 239Before Dr Preston was called to give oral evidence, it appears she had not expressed such a change of view in a report to the defendant's solicitor, as was the obligation of an expert according to the terms of UCPR Schedule 7, clause 4, or if she did, no supplementary report from Dr Preston to that effect was tendered by any party. In this regard, it is of no consequence that she was called to give evidence in the plaintiff's case. 240In clarification of her change in opinion, Dr Preston stated that although she did not have a concern about the history provided to her by the plaintiff, she stated that she nevertheless found it difficult to say with certainty that the fractures were caused by the accident. This appeared to be a matter of emphasis rather than accuracy of history. 241When Dr Preston was asked to clarify whether, on the balance of probabilities, namely 50 per cent or more in favour of causation, that the fractures in question were accident related, she said she could not agree that this was so. When that view came to light, in further clarification, she explained that she had some concerns about the significant time delay between the occurrence of the accident and the diagnosis of the plaintiff's thoracic fractures: T610.12 to T610.46. 242When Dr Preston was asked to explain the basis of her opinion on causation (at T611.15 to T612.13) she gave the following evidence which was revealing of the assumptions that had underpinned her changed view on causation: "Q. I have to make a decision on what is and what is not due to the car accident. Are you able to assist me in the course of evaluating the connection between the car accident and the thoracic fractures? A. Yes. Q. What are the clinical considerations of a diagnostic character which you weighed in favour of such a diagnosis and those which you weighed against and how did you end up achieving the final balance of conclusion. A. In terms of the - in terms of the mechanism, I don't have a problem. I think if you were involved in a significant motor vehicle accident, you could sustain a fracture. But what troubles me is if somebody is involved in a significant collision and they get two fractures - acute fractures in their back - I would have thought that there would be a focus at that time on his upper back. The history I got later, which is, you know, down the track was that it was part of more generalised spinal symptoms and there were also some limb symptoms. So that - that focus wasn't there. And then the history was that he did - he was able to go to work and that he drove from the scene and that he didn't seek any medical attention. So all those things just don't strike me as consistent with sustaining a fracture at the - of two vertebral bodies at the time, which I would think would be acutely painful - you know, severely painful and - and focus attention to the upper back. In fact, the X rays don't appear for a long time period afterwards. So usually I'd expect if he had a fracture - if he had two fractures in his spine, he would have had a lot of pain at the time, requiring medical attention at the time. I'm not disputing that the car accident may not have had an effect on his spinal symptoms but it just seems less likely that he actually broke his spine or fractured his spine at that time. Q. In that analysis, is there any allowance that you've made for possible variations in, if I can put it this way, degrees of stoicism or alacrity in seeking medical attention. A. People - look, people vary in degrees of stoicism, there's no doubt about that. But X rays were taken at some stage so at some stage there was a complaint severe enough to warrant X rays. So it's not - it's not that he - he never sought attention, he just didn't at that time. So clearly if symptoms warrant it, he did seek attention." 243Dr Preston agreed that a significant accident, which I took to mean the force of a collision, could cause thoracic spine fractures: T 611.35. In her first report, she noted the reported force of the collision to have been 90kph. In her oral evidence Dr Preston stated that she expected such fractures would have been acutely painful to the sufferer at the time of injury: T611.47. She also agreed that the phenomenon of stoicism in the face of injury was something that varied between individuals: T612.8. She remained concerned about the elapsed interval of time during which the plaintiff had not sought out medical assistance for his back pain. 244When that concern of Dr Preston was further explored, it seemed that her thinking on this issue had been focussed upon an assumption that if it was present, severe pain of the type associated with thoracic fractures would have necessarily led the plaintiff to seek out medical attention much earlier than he did. She thought that this would have led to a much earlier x-ray and detection of the thoracic fractures if they had in fact been sustained in the accident in question. Those views led Dr Preston to discount causation. 245On that issue, I had the advantage of hearing the plaintiff's evidence on the nature of the impact at the time of the accident, the immediate effects that impact had upon him, the timing of onset and continuation of his thoracic pain from the time of the accident, the nature of that pain, and the reasons why he had not sought out medical assistance at an earlier point in time. I also had the advantage of observing the plaintiff's evidence on these matters being tested in a way that would have been unlikely to have occurred in a medical examination as the manner and objects of testimony in court and the taking of a medical history do not identically coincide: Mason v Demasi [2009] NSWCA 227. 246When Dr Preston had relevant aspects of the plaintiff's testimony, given in these proceedings drawn to her attention, she reverted to a position of acceptance of a relevant causal connection between the accident and relevant injury to the plaintiff's thoracic spine. That testimony of the plaintiff was cited from the transcript of evidence and comprised passages commencing at T106.45 and T109.10; T614.45 to T616.31. 247The substance of the plaintiff's evidence which Dr Preston was asked to consider at T614.45 to T616.31, related to the plaintiff's description of severe and agonising pain in his thoracic spine, and other places, from the time of the accident onwards, unlike anything he had experienced beforehand. 248Dr Preston stated that the history within the evidence that was cited to her in that context was more detailed than the history that she had obtained at her consultation with the plaintiff. She stated that the more detailed history was suggestive that something significant had occurred to the plaintiff in the accident: T616.30. 249However, Dr Preston still remained concerned that there was still a significant time interval between injury and identification of the fractures on imaging. In effect, when summarised, her concern seemed to be that normally, fractures heal some six to eight weeks after injury, and she expected that at the peak of the acute pain associated with such fractures, the plaintiff would have sought out medical advice on the thoracic pain he was experiencing, at which time x-rays would have been ordered: T617.20 to T619.40. 250When that evidence was further explored, it seemed that Dr Preston was doubtful of the assumption that stoicism was the factor which delayed the ultimate radiological diagnosis of the plaintiff's thoracic fractures: T620.3. Having heard the plaintiff's evidence on that topic, I have no difficulty in accepting as reasonable, the plaintiff's explanation that in effect, he did not seek out early medical assistance in the hope the pain would subside. I consider that this explanation was entirely in keeping with his stoic character and it was not otherwise inherently improbable in the context. 251Accordingly, it seems to me that Dr Preston's reservations over the timing of the radiological investigations are unfounded. This was particularly so in light of Dr Preston's concession that she was aware of the phenomenon that some people simply will not go to see a doctor in almost any circumstances, and some people with stoic personalities might tolerate symptoms longer than might others: T625.7 to T625.13. In my view, the plaintiff has demonstrated himself to be such a person. 252When Dr Preston's views for doubting the connection between the accident and the thoracic fractures are further analysed it seems that in the light of those concessions, she seems to have placed undue weight on the chronology of events rather than the details of the plaintiff's experience of pain over the time the events occurred. 253Furthermore, when Dr Preston's assumptions regarding the plaintiff continuing with his work are examined, it is apparent there are further flaws in her reasons for doubting a relevant casual connection between the accident and the thoracic fractures. 254One such flaw is the assumed nature of the plaintiff's work in the time after the accident. Dr Preston doubted as unlikely, that the plaintiff would have been able to continue working in the presence of such thoracic fractures: T626.28. That view was uninformed by the evidence of the plaintiff, which I accept, to the effect that in the months after the accident, his employers enabled him to delegate the demanding physical aspects of his work. That is an entirely credible explanation. That explanation enables me to cast aside as flawed, the concern expressed by Dr Preston on this aspect of the matter. 255Another such flaw in Dr Preston's reasoning was the equation she sought to make between the likely existence of pain and the plaintiff seeking out an x-ray. Dr Preston wrongly assumed the plaintiff was the one who sought out an x-ray: T626.20; T631.25. The flaw is that the plaintiff did not seek this out. Instead, he sought medical advice. The x-rays and CT scans in question was an investigation arranged at the referral of Mr Mehta, out of a concern to achieve a diagnosis for the plaintiff's back pains. 256Accordingly, Dr Preston's view (at T631.49) to the effect that the plaintiff's thoracic fractures were likely to have occurred close to the time "he had his x-rays taken" is not sustained in the light of that analysis. Once it is accepted that the plaintiff's thoracic symptoms originated from the accident in question, alternative considerations such as spontaneous fractures, as considered by Dr Preston (at T634.25 to T634.40) must be relegated to the category of unfounded speculation. 257Ultimately, when analysed, Dr Preston's evidence is not contradictory of the causation issue sought to be established by the plaintiff in these proceedings. She has accepted the proposition that the plaintiff's osteoporotic thoracic spine was vulnerable to injury occurring at some time if the accident had not occurred: T620.44; T621.11. Whilst those views may ultimately have some discounting impact upon the plaintiff's claim for future loss of earning capacity and the claims for future domestic assistance and treatment because of that underlying vulnerability, they do not have a limiting effect on a causation analysis in this case. This is especially the case when Dr Preston conceded to the defendant that it did not require a "marked force" for the plaintiff to develop a fracture: T631.21; Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, at [18].

Interim conclusions on the likely cause of the plaintiff's thoracic fractures 258The starting point for a causation analysis must necessarily be a consideration of the factual evidence, followed by a consideration of the array of the relevant medical opinions touching upon the question of whether the plaintiff's thoracic fractures were caused by the subject accident. 259Having considered the factual evidence, I am satisfied that the plaintiff gave a credible account of the onset of his experience of agonising thoracic pain at the time of the accident, the likes of which he had not experienced before, and which he continued to experience thereafter. The plaintiff's complaint of such pain shortly after the accident was corroborated by the evidence of his sister and by that of his brother-in-law, as was the evidence of the extent of the damage to the respective vehicles involved in the collision, not that I considered the plaintiff's evidence needed corroboration. I am satisfied that in the accident in question, the plaintiff suffered a significant injury to his thoracic spine when his vehicle was struck from behind with substantial force by the defendant's vehicle. 260I am also satisfied that before the subject accident, and unbeknown to the plaintiff, his thoracic spine was affected by pre-existing osteoporosis, and that such osteoporosis made him vulnerable to suffering compression fractures in his thoracic spine in the event of an injury to that area. I am also satisfied that in the circumstances of the plaintiff having a vulnerable thoracic spine, such compression fractures could have been readily caused by the collision forces at play in the events of the accident in question. I consider this to be so on whichever account of the accident was accepted, namely the one provided by the plaintiff or the one provided by the defendant. That said, for the reasons I have already outlined at paragraphs [42] to [43] above, I prefer and accept the account of the force of the accident as described by the evidence of the plaintiff. 261The issue of whether the fractures to the plaintiff's thoracic spine were caused by the subject accident was the subject of conflicting bodies of medical opinion. 262On the one hand, on an acceptance of the plaintiff's history of the onset of thoracic pain at the time of and continuing after the accident, in terms of numbers, the preponderant view within the medical evidence is that the fractures were caused by the accident: Dr Mehta, Dr Conrad, Dr Maniam, Dr Harvey-Sutton, Dr Bowers, Professor Champion, the final revised view of Dr Preston, Dr Korber, the initial views of Dr Stephen, as understood and analysed at paragraph [98] above, and the opinions of the various Medical Assessors comprising Dr Ostinga, Dr Graham and the Review Panel comprising Dr Gibson, Dr Selby-Brown and Dr Fearnside. 263On the other hand, the views of Dr Maxwell and the Assessor Dr Best, which I will shortly analyse, indicated otherwise. 264In approaching the required analysis, it is convenient for the views of Dr Stephen to be evaluated first. Although the initial view expressed by Dr Stephen was broadly similar to the body of opinions in favour of a causal relationship between the accident and the thoracic fractures, he subsequently changed that view, and sought to inculpate the chiropractic manipulations as a relevant factor. However, once analysed, it is apparent that Dr Stephen's view on the contribution of the chiropractic manipulations to the plaintiff's thoracic problems, should be seen as a flawed view. 265Once that flaw is recognised, and properly understood, the initially expressed view of Dr Stephen, which acknowledged the accident as a material contributing factor to the plaintiff's thoracic injury and subsequent symptoms, resumes a central focus. 266After Dr Stephen had been provided with copies of the additional materials, which included material from Dr Best, Dr Maxwell and Mr Angelopoulos, he had changed his initially expressed views and said he believed that the chiropractic manipulations to the plaintiff's spine were the more likely cause of the plaintiff's thoracic fractures. On the basis of that opinion, the defendant has sought to argue that those manipulations were the relevant cause of those fractures, in the nature of a novus actus interveniens. 267For the reasons that follow, I consider that the more latterly formed views of Dr Stephen as to the asserted causative effects of the chiropractic manipulations leading to the thoracic vertebral fractures, should not be accepted. 268The only descriptive evidence of the nature of the chiropractic manipulations to the plaintiff's spine came from the plaintiff, the records of Mr Angelopoulos, and from the evidence of Dr Bowers. Significantly, the records of Mr Angelopoulos made no reference to any complaint by the plaintiff of acute or severe pain in conjunction with the chiropractic manipulations. If there had been such pain, especially pain associated with vertebral fractures, it would be reasonable to expect that complaints of such pain would have been recorded by Mr Angelopoulos in his notes. There was no such record in those materials. 269When the evidence of the plaintiff and Mr Angelopoulos is read in conjunction with the medical evidence, to the effect that thoracic fractures would be expected to be accompanied by significant pain, the chiropractic treatment received by the plaintiff was not suggestive of the application of forces to his thoracic spine that would have been likely to have caused damage in the form of fractures. On the contrary, the evidence suggests that the chiropractic manipulations were gentle, and by inference, not damaging. In context, the comments by Dr Stephen to the effect that the chiropractic manipulations were likely to produce "trouble" and "minor fractures" must be seen to be speculative and uncompelling. 270In particular, I consider the portion of the commentary from Dr Stephen, cited at paragraph [167] above, to the effect that the plaintiff's underlying thoracic osteoporosis, and not the motor vehicle accident, was the significant determinative cause of the thoracic fractures on a balance of probabilities analysis, to be unpersuasive. I take that view because the preponderance of the medical evidence is to the contrary, and because the opinion in question relied upon by the defendant, was not reasoned to the extent required by UCPR Sch 7, cl 5(c), and was therefore less reliable on this critical question. Furthermore, the analysis put forward by Dr Stephen does not conform with the requirements of a legal analysis. 271I consider that the defendant's novus actus interveniens argument should not be accepted because it is unfounded in the evidence. In this regard, on a conventional analysis, it cannot be reasonably said that the causal chain starting from the extent of the force of the accident when applied to the plaintiff's osteoporotic, and therefore vulnerable, thoracic spine and the fractures ultimately detected in the plaintiff's thoracic spine, has been broken by the occurrence of a novus actus interveniens, or some relevant supervening occurrence. In that regard, in this case the evidence does not identify a line marking, or a boundary where the damage caused by the defendant's negligence ceases to be the responsibility of the defendant because of remoteness or because of an asserted break in the causal chain: Mahony v J Krushich (Demolitions) Pty Ltd [1985] HCA37, at [6]. 272In my view, the defendant has not established that the chiropractic treatment provided to the plaintiff for treatment of his injuries was "inexcusably bad", or "completely outside the bounds of what any reputable ... [chiropractor] ... might prescribe", or was " so unnecessary or improper that it was a gratuitous aggravation of the injury" or that the plaintiff acted unreasonably in seeking out and accepting the treatment in question, so as to effectively exclude the defendant from liability for any exacerbation of an underlying condition: Mahony v J Krushich (Demolitions) Pty Ltd, at [8]. 273In this case, that conventional analysis must proceed subject to the requirements of s 5D and s 5E of the CL Act. In that regard, s 5E of that Act provides that the onus of proof of causation rests with the plaintiff. Furthermore, s 5D of that Act requires that the plaintiff must show that were it not for the negligence of the defendant, he would not have suffered fractures to his thoracic spine. 274In my view, as is plainly evident from the medical opinions I have summarised above, that onus has been amply discharged by the plaintiff. That view is based upon the preponderance of the medical evidence, as identified in paragraph [262] above. 275The evidence to the contrary of that conclusion is found in the opinions of Dr Maxwell and Dr Best. 276It is convenient to examine the opinions of Dr Maxwell first, as Dr Best's opinions have clearly been influenced, or as the plaintiff submitted, contaminated, by the opinions of Dr Maxwell. 277I consider the opinions of Dr Maxwell, as relied upon by the defendant, to be fundamentally flawed for several reasons. The journal articles relied upon by Dr Maxwell for his conclusions were not authored by him and were not within his area of medical practice. They therefore require evaluation to determine their relevance and application to the plaintiff's circumstances. 278The articles in question relate to studies of osteoporosis as found in imaging studies in post-menopausal women who were in a much older age group than the plaintiff, and do not appear to specifically stratify data relating to traumatic causes of osteoporotic fractures, as distinct from factors involving age-related changes and changes in hormonal status in female subjects. In the absence of evidence of any coherent relationship between those studies and the plaintiff's situation suggesting a reliability of those articles, or any authoritative purposeful connection between those studies and the plaintiff's radiological scans, I do not see the relevance of the articles cited by Dr Maxwell. 279This is particularly so given that the articles in question appear to have made no study of, or provided no commentary concerning, the causes of thoracic vertebral fractures in persons in the position of the plaintiff. Accordingly, without further evidence, I consider the articles relied upon by Dr Maxwell to be an irrelevant distraction and of no probative value to the determination of any of the issues to be decided in this case. 280In my view, these matters demonstrate the flaw in Dr Maxwell's causation analysis. There is nothing within the admissible materials provided by Dr Maxwell that serves to undermine the definitive and unchallenged expert radiological opinion of Dr Korber, and the opinions of the medical experts cited at paragraph [262] above. On the evidence in this case, I see no sound evidentiary basis upon which I should reject those opinions in favour of the opinions of Dr Maxwell and Dr Best. 281In my view, there is nothing within the opinion of Dr Best (other than the influence of Dr Maxwell's untenable views, which I do not accept) to indicate that the identified wedging of the bodies of T5 and T6 in the plaintiff's thoracic spine, are not related to the subject motor vehicle accident. On the contrary, the preponderance of the medical and lay evidence is to the contrary: plaintiff, Dr Bowers, Dr Preston and Dr Harvey-Sutton. Dr Best's report was not an expert medical opinion subject to the requirements of UCPR r 31.23 and Sch 7 cl 5(c) and I therefore discount its weight in favour of the opinions that are subject to those requirements. 282I therefore conclude that on the preponderance of the medical evidence, as analysed above, the overwhelming conclusion to be drawn from that evidence is that the fractures to the plaintiff's thoracic spine identified on radiological imaging were more probably than not, caused by the subject accident. 283In my view, the evidence overwhelmingly satisfies the requirements of factual causation: s 5D(1)(a) of the CL Act. I am satisfied that the plaintiff's fractures would not have occurred but for the admitted negligence of the defendant: Strong v Woolworths Ltd [2012] HCA 5, at [18]. 284In arriving at this conclusion, it is relevant to observe that the plaintiff must show that on a commonsense analysis, the negligence of the defendant either caused or materially contributed to the plaintiff's injury: March v (E & MH) Stramare Pty Limited [1991] HCA 12;(1991) 171 CLR 506, at [17] to [18]. In this regard, the defendant must take the plaintiff as he finds him, with underlying vulnerabilities included: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, at [8]. This was the very basis of the opinion of Dr Harvey-Sutton, and it compels the rejection of the defendant's arguments directed at seeking to avoid causation in this case. 285I therefore consider that Dr Maxwell and Dr Best have misdirected themselves in their analysis of the causation issue, and their views should not be accepted. Instead, the evidence leads me to conclude that on the balance of probabilities, the plaintiff's thoracic spine fractures, and the pathology and pain from the plaintiff's neck and lumbar spines, were caused, or materially contributed to, by the subject motor vehicle accident. The evidence persuades me that the plaintiff would not have encountered those problems but for the accident in question, and these matters fall within the scope of the defendant's legal liability: s 5D of the CL Act.

Disposition 286The defendant now consents to the matter being remitted for a further MAS assessment. Having reviewed the relevant evidence in detail as outlined in these reasons I am satisfied that in the circumstances it is plain that relevant additional information has emerged that indicates that the order sought, which is discretionary, is appropriately made.

Future re-listing of the proceedings 287Pending the completion of the further MAS process that will follow the orders I will shortly make, I will proceed to advance the outline working draft of my judgment on all those other matters, whilst allowing for the likelihood that further submissions on damages will be made in due course, after the further MAS processes have been completed. 288If, after the present referral to MAS, the parties still require the proceedings to be re-listed for further evidence or argument before proceeding to final judgment, on that occasion any further matters requiring consideration may then be addressed. The matter may then proceed to final judgment without significant delay. In my formal orders I also propose to incorporate a timetable for a mention date to ensure that the progress of any further procedural delays are monitored, and to enable further procedural orders to be made, if they are required.

Costs 289The question of costs of the application for referral of the proceedings for a further medical assessment would ordinarily abide the result of the further MAS assessment, but as no arguments have been addressed to that question, I will reserve the question of costs.

Orders 290I make the following orders: (1) Pursuant to s 62(1)(b) of the Motor Accidents Compensation Act 1999, as a result of further additional and relevant information becoming available concerning the plaintiff's injury on 24 August 2005, I refer the matter to a further MAS assessment; (2) Costs of the plaintiff's motion for referral of the plaintiff's claim for a further MAS assessment are reserved; (3) Liberty to apply on 7 days notice if further orders are required; (4) The proceedings are listed for mention before me at 10.00am on Friday 1 February 2013 for the purpose of ascertaining the likely timing of any further consequential evidence or submissions that may need to be considered before the matter may proceed to final judgment. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 October 2012

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (40 paragraphs)

Parties

Cases Cited (17)

Cited By (2)