Fuller v McLeod [2016] NSWDC 377 | Case summary

The plaintiff's case

In his evidence, the plaintiff said that as he was driving north on the Pacific Highway near New Italy. There was no‑one in front of him. He said that behind him was a silver four‑wheel drive towing a trailer. There were overtaking lanes from time to time. The plaintiff was in the left‑hand lane where there was an overtaking lane. The left‑hand lane in which he was travelling was coming to an end and it was necessary for him to merge right. The plaintiff told me that he engaged his blinker to indicate that he was moving from the left‑hand lane into the right‑hand lane. The plaintiff's case is that at that time the defendant was behind his B‑double combination. He said that only after he was moving into the right‑hand lane did the defendant seek to overtake him. He said that he was 3 feet onto the right‑hand lane when he saw the defendant's vehicle and trailer seeking to overtake him. Dividing the northbound and the southbound lanes of the highway, at this point, was a wire fence which the plaintiff described as a "cheese cutter" but I was informed by Senior Constable Hosken that the technical name for this well‑known and commonly encountered lane‑dividing system is a brython wire fence.
The plaintiff told me that the trailer drawn by the defendant's vehicle collided with the fuel tank on the driver's side of his vehicle, the fuel tank being underneath the cab between the front wheel or "steer wheel" of the prime mover and in front of the rear wheels or "drive wheels" of the prime mover. He also told me that the trailer collided with the steer wheel; that is, the front wheel, of the prime mover and that it also collided with the side of his vehicle's bumper bar.
The plaintiff told me that he was unable to move to the left because that would have put him into a drain and caused his vehicle to overturn. He told me that he did not brake because the defendant's vehicle and trailer were moving more quickly than he did and the trailer quickly passed him by before he had any time to brake. The plaintiff's case is that he then followed the defendant for about a kilometre where the defendant pulled over. The plaintiff then pulled over in front of him parking his B‑double combination about 100 metres beyond where the defendant had parked his vehicle and trailer.
Each of the plaintiff and the defendant agree that the distance between the front of the defendant's vehicle and the rear of the plaintiff's vehicle was about 100 metres. The only issue is whether the defendant pulled over 500 metres after the collision, which is the defendant's case, or 1 kilometre beyond it, which is the plaintiff's case. The plaintiff said that the defendant got out of his vehicle and started to walk towards the plaintiff's truck. The plaintiff told me that he then alighted from his vehicle and walked towards the defendant. The plaintiff told me that the defendant then turned around and walked back to his car. The plaintiff said that he then photographed the defendant's vehicle, in particular, its registration plate and also took a photograph of the defendant. The plaintiff's evidence‑in‑chief was completely silent as to why the defendant turned around and walked back to his vehicle. There was obviously some interaction which caused the defendant to return to his vehicle, if the defendant had been walking towards the plaintiff, as the plaintiff says.
Exhibit A is print of a photograph which the plaintiff said he took. It records the registration number of the defendant's vehicle. Exhibit B is a print of a photograph which the plaintiff took of the defendant. It shows the defendant's Mitsubishi Triton twin cab utility truck, silver, parked on the side of the highway. Doing the best I can from the photograph, the caged trailer itself was about the same width as the Mitsubishi Triton but the wheels, covered by mudguards, on each side of the trailer extended its width beyond that of the car. There is no dispute that exhibit B shows the defendant. It shows him in essence standing on the offside of his vehicle at its front probably at about the place where the front tyre of the Triton would be found if the photograph was taken showing, for example, the defendant's legs and feet.
Exhibit B also shows that there is a very wide shoulder which is in part bituminised and then there is a further part which is covered in grass but the defendant's vehicle is parked mainly on the grass rather than on the bituminised part of the shoulder. In other words, the grass shoulder or verge itself would be almost wide enough to take an ordinary vehicle. It is clear to me that the width of the bituminised shoulder and the green shoulder or verge beyond it would likely support any type of road vehicle. One can see, in the same photograph, the brython wire fence dividing the northbound and southbound lanes of the highway.
It is clear that the photographs were taken using a mobile phone, not with a camera. For example, in his evidence the defendant said that the plaintiff was holding, in one of his hands, a phone. In his other hand, at the relevant time, the defendant says, the plaintiff was wielding a guidepost taken from the side of the road. There is also reference in statements to the plaintiff's taking the photographs that he took with his mobile phone. I need to address this issue later when I discuss the defendant's evidence. It appears fairly clear to me that, to take the photographs which are exhibit A and exhibit B, the plaintiff himself would have had to have been close to both the defendant's vehicle and to the defendant himself.
The plaintiff said that after he took the photographs he asked the defendant to provide him with his licence details. The plaintiff said that the defendant then "hopped" into his four‑wheel drive. The plaintiff said that he was standing in front of the offside or driver's side headlight about 1 metre in front of it. He then said the defendant drove his vehicle forward. Initially the defendant drove to the defendant's left and then he drove to the right and onto the carriageway of the highway. The plaintiff said that as the defendant did that the defendant's front nearside mirror struck him and that he was then struck by the side of the Triton in the vicinity of the driver's door and those blows caused him to twist and fall such that he was lying prone on the bitumen with his head facing north and he felt tyres go over his back and his left arm. He told me that the defendant then drove on and did not stop.
The plaintiff then said that he rang the emergency number 000. He said that he told the operator that he had been "just run over". He said that he was told that a police vehicle was to be dispatched from Ballina and he then waited. The plaintiff mentioned nothing to me about asking for an ambulance. One would have thought that if he had been "just run over" the operator would be solicitous to ascertain whether an ambulance was required because one would think there was a greater need for an ambulance than a police car.
The plaintiff's case is that he waited for about 22 minutes and then he made another call to the emergency number and was told that there were no police available to come to his aid and could he please get into his vehicle and drive his B‑double to the Woodburn Police Station where he would find someone to assist him. The plaintiff told me that he had checked his call records and that there was this 22‑minute gap between the two 000 calls. When asked how he was feeling during this period of waiting the plaintiff said, colourfully, that he "felt like a piece of crap".
The plaintiff then told me that he drove to the Woodburn Police Station and rang the bell at the station. He told me of having pins and needles and pain in his left arm and that he was unable to bear weight on his left leg. Nevertheless he was able to drive from New Italy, or thereabouts, to Woodburn and after talking to police for a short period of time he was then able to drive to Brisbane; from one Brisbane depot to another and then from Brisbane back to the Macksville Hospital where he arrived in the early hours the following day.
The effect of the plaintiff's evidence was that the police at Woodburn were disinterested in what he alleged, did not take a statement from him and indeed did not wish to take a statement from him and that he eventually went to Bowraville Police Station and made a statement but that did not occur until Wednesday 18 May 2011, some four weeks later.
The first relevant paragraph of the plaintiff's statement of 18 May 2011 is this: "About 3.30pm on Wednesday 27 April 2011, I was driving a Ruttley's b‑double north on the Pacific Highway[,] New Italy. A vehicle sat behind me from Fairy Park, or for about 25 minutes. This vehicle was a Mitsubishi Triton ute. During this time, there were three overtaking lanes, however this vehicle did not overtake me." The plaintiff did not give evidence to that effect. I am unaware of the Fairy Park but there is near Mclean, on the Pacific Highway, "Ferry Park" and that is probably about 25 minutes south as one drives on the highway to New Italy. The statement suggests that the defendant had numerous opportunities to overtake the plaintiff but did not use them.
The next paragraph of the plaintiff's statement is this: "There is an overtaking lane in the vicinity of New Italy. It is the second overtaking lane south of the New Italy speed cameras. The Mitsubishi Triton sat behind me the entire length of the overtaking lane. There was a vehicle towing a caravan in front of me, which was doing the same speed as me (98 km/h). At the end of the overtaking lane there was no‑one in the right lane and the Mitsubishi Triton was behind me. I put the right blinker on to move into the right‑hand lane as the left lane had ended. As I was about 2 feet into the right‑hand lane[,] I saw the Mitsubishi Triton accelerating past me. He was up to the prime mover at this stage." One will note, immediately, that in the statement the plaintiff said that in front of him was a vehicle towing a caravan but in his sworn evidence he said that there was no‑one ahead of him.
The next paragraph of the statement is this: "I could hear the vehicle's engine accelerating. He kept accelerating past me and the box trailer he was towing collided with the driver's side of my truck at the side steps. He kept on accelerating and the trailer collided with the front driver's side steering wheel and then the side of the bull bar. The trailer lifted up off the ground and it sat on the front of the bull bar and my bonnet." I can readily accept that since the plaintiff said that the trailer struck his fuel tanks; that the trailer also struck the side steps of his prime mover and there is some contemporaneous photographic evidence to the same effect. However, there is no other suggestion that the trailer lifted up off the ground onto the bonnet of the prime mover; that is patently nonsense.
The next paragraph of the statement is this: "I backed off and the trailer fell off the front of my truck. The Triton pulled over to the left and I stopped in front of him. The male driver got out of the Triton and approached the front of the truck. I got out of the truck and turned the camera on in my mobile phone to take a photo of a our vehicles as proof of what happened. The male started yelling and cursing at me calling me names such as "Fucking idiot". I took a photo of the male and he got back in his vehicle and started the vehicle's engine." How the plaintiff backed off his rig is unclear. He told me in his evidence that he did not brake. He may have meant, in the statement, to indicate that he eased off the accelerator. But there is no oral evidence that the trailer had mounted onto the front of the plaintiff's truck. The plaintiff gave no evidence that the defendant was yelling at him and cursing him and calling him names and, indeed, it was frankly conceded by the learned senior counsel for the plaintiff that the statement that the defendant was doing such things was incorrect. There is no explanation given by the plaintiff in that paragraph as to why the defendant appears to have been acting aggressively. According to the plaintiff's version, the defendant returned to his vehicle and got back into it.
The next three paragraphs of the plaintiff's statement are these: "I stood in front of his vehicle to stop him from leaving as he had not supplied me with his details as required after an accident. The male turned the vehicle to the left, then quickly to the right to pull out into the lane of traffic. In doing this, the front driver's side mirror of the Triton has hit my right‑hand ribcage, which spun me around. He kept driving and the driver's side, near the drive tyre, hit me and knocked me to the ground. He kept driving and the two wheels from the trailer he was towing ran straight over me. I did not lose consciousness but ended up in the lane of traffic. I got up and got off the road and called 000. After sometime, the police had not arrived so I called 000 again and I was directed to attend Woodburn Police Station. I drove to the police station and spoke to the police there." On the plaintiff's own version of events, when he fell onto the ground, he fell onto the shoulder of the road and not into the lane that carries the traffic. One will note that the plaintiff, in the statement, said that after he was knocked down he got up; although subsequent histories indicate that the extent of the damage done to the plaintiff was much more significant because he laid on the carriageway for some 22 minutes. Finally, I should relate that in the final paragraph of his statement the plaintiff said that as a result of being struck by the defendant's vehicle he sustained a broken left arm, sore ribs, a sore face, a bruise on the side of his left leg and tyre tread marks on his back.
When the plaintiff went to the police station, he was interviewed by Senior Constable Brown. Woodburn Police Station is a small station. There were only two police officers attached to the station at the time. They were Senior Constable Hosken, who was the lock‑up keeper, and Senior Constable Leber. It would appear that on the afternoon of 27 May 2011 Senior Constable Leber was off duty. Senior Constable Hosken was working with Senior Constable Brown who was then attached to the Evans Head Police Station.
Senior Constable Brown gave evidence before Senior Constable Hosken. One can understand why because Senior Constable Hosken had little, if any, memory of the events currently in question. Senior Constable Brown told me that he and Senior Constable Hosken were in a police vehicle and were driving into Woodburn from Evans Head. They were travelling on the Evans Head Road. Evans Head Road joins the Princes Highway, which is in fact the main street of Woodburn, north of the Woodburn Police Station. Senior Constable Brown told me that as they were driving towards the police station there was a truck parked on his right‑hand side, which was a B‑double truck. He also said that there were people waiting. He told me that on the left‑hand side there was a car and a trailer. The inference to be drawn is that the B‑double was the plaintiff's vehicle and the car with the trailer was the defendant's vehicle. The Senior Constable was unsure as to whether the car and trailer were parked there as he approached but they were soon after.
The plaintiff and the defendant were there to greet the police but not to greet each other. In fact, there was hostility between the plaintiff and the defendant. Senior Constable Brown described each of the men as being agitated. He said they were talking across each other or through the police at each other. Senior Constable Brown went into the police station and conducted an interview with the plaintiff. It appears that the defendant had also entered the police station but Senior Constable Hosken took the plaintiff outside the police station to deal with him outside the small building.
The notes which Senior Constable Brown made in his notebook are exiguous. They record an interview at 4.30pm. They record that the plaintiff gave a description of the incident occurring on the Pacific Highway 3 to 4 kilometres south of the New Italy speed camera. The rest of the entry are the details of the defendant's B‑Double rig and the plaintiff's mobile telephone number and the COPS event number and the damage done to the plaintiff's vehicle. He did not record the plaintiff's name, address or licence details. Nevertheless, Senior Constable Brown was able to give me a description of what he was told by the plaintiff.
At the time of giving evidence, Senior Constable Brown was recalling events that had occurred five and a half years previously. One would think that in that five and a half years he would have attended upon many accident scenes, would have interviewed hundreds if not thousands of potential witnesses to various events, and would have no particular memory of what a person said five and a half years earlier. However, the senior constable told me that he started to complete a COPS event that evening, that is, sometime after he had attended to another job which was described as urgent, then attended the place where the police thought the incident in question may have occurred and then returned to a police station to commence a COPS entry.
The senior constable was then cross‑examined about a number of versions of the "COPS entry". One version was eventually marked for identification 2, another version was eventually marked for identification 3. When shown MFI 2 and MFI 3 the senior constable pointed out that each of the COPS entries that he had been shown was incomplete or deficient in that each only provided a "crash summary", which is only what was allowed to go out to the media. He said that the COPS entries he had been shown did not show a complete narrative. Eventually what might be a complete COPS entry was marked for identification 4. However, neither party tendered MFI 4. The only relevant conclusion is that what Senior Constable Brown said in evidence was consistent with MFI 4, the full COPS entry, and therefore the defendant did not need to tender it nor did the plaintiff wish to do so because it perhaps only corroborated the evidence that had already been given by Senior Constable Brown or otherwise was not consistent with the plaintiff's case. One would think, therefore, that what was said by Senior Constable Brown about his interview with the plaintiff was a contemporaneous version of events given by the plaintiff and likely to be accurate. The senior constable told me that the plaintiff said that he had been travelling north near New Italy, he was driving in the left‑hand lane. The plaintiff told the senior constable that there was a car that was overtaking him as the left‑hand lane was closing. In essence, the plaintiff maintained that the car only started passing the plaintiff after he started to merge into the right‑hand lane.
The description given by Senior Constable Brown of what the plaintiff said, according to my notes, is that it took some time for the defendant to stop. According to Senior Constable Brown, the plaintiff told him that the defendant's vehicle stopped in front of the plaintiff's vehicle and the driver, who was the defendant, did not get out of his car. Senior Constable Brown recollected the drivers were yelling at each other. Senior Constable Brown told me that the plaintiff said that he put a stick in front of the car to stop it driving off. However, the car did drive away and as it did so, it clipped the plaintiff on the left arm. The senior constable told me that he offered to call an ambulance to assist the plaintiff but the plaintiff declined that offer.
According to Senior Constable Brown, the plaintiff needed to get his load offloaded at the depot in Brisbane. As far as the Senior Constable could recollect, the plaintiff was walking around normally, although the Senior Constable was not keeping him under close observation. According to the Senior Constable, the only complaint the plaintiff made was about his left arm. Senior Constable Brown told me that he said that the police that he would look into the matter later. The plaintiff was asked to make a statement but declined to do so, but the Senior Constable told the plaintiff that he would need to make a statement in order there be any further action in respect of complaint the plaintiff had made.
It is common ground that the amount of time that Senior Constable Brown and Senior Constable Hosken could spend at the Woodburn Police Station talking to the parties was limited in that they had received a call to go to an urgent job and they were on their way to that "urgent job" when they were hailed down, probably by the plaintiff, as they were passing the Woodburn Police Station. After the two Senior Constables had attended to the urgent job elsewhere, they clearly returned to the Princes Highway, 3 to 4 kilometres south of the New Italy speed cameras, to try to find any evidence consistent with the plaintiff's allegation.
It is clear that Senior Constable Brown remembered going searching for evidence but his only recollection is that it was dark and there were no obvious signs of any collision that he could remember. They did not find the "stick" referred to by the plaintiff but they did find an old wooden guidepost that they believed could have been the item referred to by the plaintiff. Immediately after this shift, Senior Constable Brown went on leave, leaving further investigation to Senior Constable Hosken.
It is extremely unfortunate that either in chief or in cross‑examination Senior Constable Brown did not have drawn to his attention photographic evidence which became exhibit M, which are colour photographs, and exhibit P which are very poor quality images but clearly came from photographs taken by Senior Constable Hosken or Senior Constable Brown on 27 April 2011. If that photographic evidence had been shown to Senior Constable Brown his memory may have been refreshed and he may well have been able to give further detail.
As I have already mentioned, that is common ground that the plaintiff pulled up 100 metres ahead of the defendant, not vice versa as the Senior Constable said. Further, it is common ground between the plaintiff and the defendant that the defendant did alight from his vehicle and was outside his vehicle for some time, which, again, is inconsistent with what Senior Constable Brown recalled.
Exhibit P shows an image of the plaintiff. The first of the 25 images shows the plaintiff from the waist up displaying his left forearm. The next photograph appears to me, as it appeared to Senior Constable Hosken, to be the photograph of an elbow; one can clearly identify the olecranon. There appears to be proximal to the olecranon some form of wound or lesion; it may merely be a contusion. However, the next two images are of a leg in jeans and it appears to me to be the left leg in the area between the thigh and the knee. One of the images shows marks which may be marks or, as Senior Constable Hosken said, they could be creases. On the image, which I have numbered 3, the marks or creases can be seen vaguely but there is a closer‑up image in photograph 4.
If the plaintiff was only complaining of his elbow, why would the police take photographs of the plaintiff's be-jeaned left leg? The inference to be drawn from this contemporaneous police photograph is that the plaintiff made some complaint about his leg left which did not find its way into the COPS entry and hence the evidence of Senior Constable Brown that the plaintiff's only complaint was about his left arm.
Whilst I am discussing those photographs, I should indicate what they further represent. Photograph 5 is a photograph of a Queensland number plate DD 43 30. It appears to be the number plate of the trailer. The following images numbered 6, 7 and 8 are all of a caged extended box trailer consistent with what is shown in exhibit B. Photographs 9, 10, 11 are photographs of a wheel with a very mangled tyre. That wheel appears to be lying on the tray of the trailer. That is consistent with the defendant's evidence which is encapsulated in the statement made by the defendant in Queensland on 10 May 2011, some two weeks after the event. The relevant parts of the defendant's statement are these: "[16] I then drove to the police station at Woodburn but there was no‑one there at the station. I arrived there about 4pm to quarter past 4. [17] As there was no‑one at the station I was still concerned for my safety so I drove to the mechanical repair shop north of the police station to replace one damaged wheel which was to be a temporary repair. [18] Once I observed the police at the police station I returned and made a verbal statement." In other words, the photographs of the wheel with the mangled tyre on it are consistent with the photographs having been taken after the defendant had obtained a new wheel for the trailer and had driven it from a mechanical repair shop to the police station.
Photograph number 12 is a photograph of the registration plate of the defendant's prime mover. The photographs numbered between 13 and 17 show damage to the front bumper of the prime mover, to a wheel of the prime mover, and to the driver's steps of the prime mover. Photographs numbered 18 to 25 are attempts to take a photograph of what police believed was the scene of either the initial collision or of the altercation between the defendant's vehicle and the plaintiff's body, according to the plaintiff. They show a bitumen shoulder and grass growing near it. One of them clearly identifies the police vehicle being driven by Senior Constable Hosken and Senior Constable Brown at the time.
A number of the later photographs show a very old, rotten piece of wood which might once have been a guidepost and beside the final image that shows that guidepost is a police baton which was clearly put there to give some indication of the length of the piece of the timber that the police might have believed was the stick identified to Senior Constable Brown by the plaintiff. This whole series of images appear to me to be consistent with photographs taken by the police on 27 April 2011. Indeed image number 6 showing the caged but long box trailer appears to have been taken in the Woodburn township itself, from the background and layout of the road on which it stands, consistent with the police having photographed it when it was parked outside the police station.
Exhibit M, which came into evidence through Senior Constable Hosken, contains copies of photographs which are exhibit A and exhibit B and photographs of the wheel and the bumper and side steps and the bull bar of the defendant's truck and may represent photographs taken by the plaintiff himself on the day of the accident.
In summary, there are some deficiencies in Senior Constable Brown's evidence and I intend no criticism at all of Senior Constable Brown who tried to assist me. However, it must be recalled that at the time of interviewing the plaintiff he made no contemporaneous note but relied on what he recollected some time later that evening about what he had been told by the plaintiff. There are clearly errors in what he recorded; that is, as to who stopped where and as to whether the defendant got out of the defendant's vehicle. I therefore approach his description of the plaintiff's only complaint being about his left arm guardedly because the photographs which were probably taken by him; that is, Senior Constable Brown, show the plaintiff's left leg. That also causes me to approach his evidence guardedly that the only damage done by the defendant's vehicle to the plaintiff was a clipping of his left elbow.
According to Senior Constable Hosken, when the car in which he and Senior Constable Brown drove past the police station in Woodburn, there was only one of the drivers there, and I infer by that he meant the plaintiff, and that the other driver turned up "shortly thereafter", and I infer that that was the defendant and that is consistent with what the defendant said in the statement which I have already quoted. According to Senior Constable Hosken, Senior Constable Brown was the officer‑in‑charge of this investigation, their taking turns to share the load. He agreed that he walked out of the station and spoke to the defendant and that he recorded his details in his notebook, which is correct.
In cross‑examination, Senior Constable Hosken agreed that the plaintiff was agitated and upset and he indicated a problem in his left forearm, indicating that the plaintiff was demonstrating holding a closed fist with an angle of about 110 degrees between his forearm and upper arm and moving the arm at the shoulder level by rotating the shoulder joint. When exhibit M was put into evidence, the Senior Constable told me that he did not know the origin of those photographs. When shown exhibit P he was able to identify most of the images, just like anybody else who looks at them. But he said he could not remember taking photographs nor could he remember Senior Constable Brown taking photographs. He did not remember taking any photographs at the "scene" of the investigation nor could he remember Senior Constable Brown taking any such photographs, but, clearly, they were taken. I set that out more thoroughly in the evidentiary ruling I made on Wednesday 23 November 2016.

Quantum

The remaining issues relate to quantum. There is no dispute that during the 11 and a half weeks that the plaintiff was off work he suffered damage amounting to $16,825.92. That is set out in annexure A to exhibit N. That amount covers the plaintiff's loss of income during the period, his entitlement under Fox v Wood and his loss of superannuation benefits that ought to have been paid to him in respect of his economic loss during that period.
The parties have agreed that the plaintiff's out‑of‑pocket expenses to date are $7,360.27. That in itself raises another issue of a medical nature. I return to the medical evidence.
Having been discharged from the Macksville District Hospital on 28 April 2011, the plaintiff returned there on the following day at 10.01am. According to the triage notes made at 10.01, the plaintiff had a back slab applied "two days ago", which by this time was totally loose. The plaintiff wanted to go back to work and he needed a better plaster in order to be able to drive his truck. Of course, the discharge had not been two days earlier but one day earlier. Significantly, the plaintiff wanted to go back to work. He does not appear to have been seeking to malinger.
On 29 April, a fresh plaster back slab was applied and the plaintiff was told to attend the Fracture Clinic at the Coffs Harbour Hospital as had been planned on the preceding day. The plaintiff attended the Coffs Harbour Hospital on 9 May 2011 for that review. When the plaintiff did go to the Fracture Clinic he requested the removal of what was a long‑arm plaster and he asked that a short‑arm plaster be applied. Though the Fracture Clinic acceded to that request, arrangements were made for the plaster to be removed five weeks after 9 May. The plaintiff was seen at the fracture clinic by Dr Darrin Marshall, an orthopaedic surgeon. An X‑ray was taken at this time, which confirmed a re‑fracturing of an ulna fracture at the site of the junction of the distal and middle thirds of the ulna. There had also been a re‑fracture of the old radial fracture although that was poorly seen in the X‑rays of 9 May 2011. A further X‑ray was performed at the hospital on 9 June 2011 and is reported thus: "Progress and position follow‑up films with sclerosis at the distal radial and ulna fracture site. Normal bony alignment." A further X‑ray was performed on 22 July 2011. That is reported thus: "United fractures of lower third of the radius and ulna. Evidence of previous plate fixation with the removal of plates. No evidence of re‑fracture of the forearm. No elbow effusion and the carpal bones are normal."
In a report of 9 December 2011, Dr Marshall noted that the plaintiff was returning to his pre‑injury duties on 27 July 2011. The plaintiff did so; that was confirmed in the plaintiff's oral evidence. In his report of 9 December 2011, Dr Marshall expressed the view that stabilisation "has most likely occurred" and that the prognosis was "excellent" and he gives no reason for him to see the plaintiff again.
The plaintiff's general practitioner was Dr Win Moe of the Bawrunga Aboriginal Medical Service, but there are no clinical notes provided to me from Dr Moe or that medical service. However, they were provided to Dr Burns who commented upon them in his report of 9 October 2014. At the foot of p 2 of that report, Dr Burns says this: "When first seen in March 2012, Mr Fuller stated that he had had one prescription of analgesics from Dr Moe and no further medication. At that time he required no physiotherapy or further investigations, apart from the forearm X‑rays. Mr Fuller reported that throughout the remainder of 2012 he continued to see Dr Moe, his general practitioner, as required. From the documentation I reviewed, this was about every three or four months and was mostly for other medical conditions, not for injuries from the motor vehicle accident. In December 2012 he did report some ongoing pain and discomfort in his left forearm." As far as I can work out, there appears to have been no treatment of the plaintiff for any relevant injury between 27 July 2011 and December 2012.
It would appear that after December 2012, the plaintiff was diagnosed with a carpal tunnel syndrome affecting his left arm. As I have earlier mentioned, the plaintiff saw Dr Burns on 15 March 2012. Under the heading "Current Symptoms" Dr Burns recorded this: "Mr Fuller reports that his left forearm is a little sore most of the time. He states that he has no further medical attention for the forearm. He reported that his left hip and low back have mostly resolved. He is on no medication and having no treatment." Dr Burns reported that the plaintiff had returned to working for Ruttley Transport and when that company closed in September or October 2011 the plaintiff found fulltime truck‑driving work with Fred's Transport. He was in such employment at the time of Dr Burns' assessment. According to Dr Burns' findings on examination, he detected no abnormality on examination of the low back nor did he find any objective evidence of organic disability when he examined the plaintiff's left hip. When he examined the left forearm he noted these findings: "Examination of his left forearm revealed some mild tenderness in the distal radius and ulna only. There was no evidence of muscle wasting in the left forearm. Active range of movement in the left elbow was normal with 140° of flexion, 0° extension, 90° pronation and supination. Active range of movement in the left wrist revealed 50° of flexion, 60° of extension, 30° of ulna deviation and 20° of radial deviation. His grip strength on the right side was 40 kilograms and on the left side was 30 kilograms." In other words, there was no finding of anything suggesting carpal tunnel syndrome. Dr Burns believed the plaintiff had recovered from the soft tissue injury to his low back and as far as the left hip was concerned, if there were a partial subluxation, the plaintiff had recovered from it. But he thought that there was a slight decrease in flexion of the left wrist, which was associated with the injury of 1996 rather than the motor vehicle accident of 2011.
Dr Hopcroft examined the plaintiff on 13 June 2012. The plaintiff complained of cramping in the left forearm and also of some crepitus in his left hip, with the left leg giving way from time to time, and of minor low back pain without any peripheral radicular symptoms. There was no complaint of any symptoms of a carpal tunnel syndrome. When Dr Hopcroft examined the plaintiff's left arm he said the plaintiff had regained full use of his left wrist and there was full pronation and supination of the left forearm with a powerful grasp of both hands being demonstrated and he could not detect any peripheral nerve deficit sign. In other words, there was nothing suggestive of the plaintiff having a carpal tunnel syndrome at that time. As far as the low back was concerned, the doctor said that the plaintiff had some pre‑existing low‑grade spondylitic change in the low back, and a diagnosis which I am prepared to accept. Dr Hopcroft went on to say this: "Most importantly, however, the patient now has crepitation in his left hip joint, and with a very high pain threshold and an attitude not to let anything get him down, he is coping with the problem but almost certainly will develop arthritis in the left hip joint from his injury." To develop arthritis there must be damage to an intra‑articular surface in the relevant joint be it a hip, a knee, an elbow, a wrist. No‑one can tell me how the plaintiff has damaged the intra‑articular surface of his left hip and therefore how arthritis could develop. Furthermore, to postulate, damage to the intra‑articular surface of the plaintiff's left hip, there would have had to be a subluxation, a proposition which I just cannot accept on the evidence, in particular in light of the opinion of Dr Harbison.
Dr Hopcroft noted, at that time, that the plaintiff had lost his position as a truck driver and was seeking a new position as a truck driver but in the meantime working on his farm, the piggery, doing fencing work. On 24 April 2013, the plaintiff had an X‑ray of his left forearm. He appears to have been seen by Dr Marshall on the same day and complained to him of numbness in the fingers of his left hand, mainly the middle two fingers but I do not know whether by that he has meant the ring finger and the long finger or the long finger and the index finger. I take that information from Dr Burns' second report commencing at the foot of p 2. It would appear that at this stage the carpal tunnel syndrome was diagnosed.
In a report of 4 December 2013, Dr Marshall pointed out the plaintiff "has left carpal tunnel syndrome". He does not state that it was causally related to the motor vehicle accident now in question. In the fourth numbered paragraph of the report he said this: "My last full examination of Craig revealed features consistent with carpal tunnel syndrome. He had developed numbness in the hands and fingers, and his pain had continued to escalate around the hand and the forearm area. This was on 17 May 2013." I assume that that date is the date of the doctor's last full examination of the plaintiff. On 24 October 2013 the plaintiff was seen by Dr Loiselle, a neurologist, who conducted median and ulna nerve conduction studies which were reported as normal. However, in his report of 4 December 2013 Dr Marshall pointed out that nerve conduction tests had only reliability of 90% and therefore this could be a false reading. He recommended surgery which appears to have been approved of by the CTP insurer and was carried out at the Baringa Private Hospital by Dr Marshall on 23 January 2014. Under the heading "Technique" the doctor said this: "We then proceeded to do an open carpal tunnel release. His fascia was extremely tight and in particular it was proximally, which you don't usually see."
On 19 February 2014 Dr Marshall wrote two reports, the first was to the plaintiff's solicitors. In that, the doctor said the plaintiff had made a remarkable improvement with complete resolution of the numbness he was getting in the fingers of his left hand prior to the surgery. He expressed the opinion that the plaintiff "will make a full recovery from his carpal tunnel syndrome". In the report to Dr Moe of the same date the doctor said this: "I have reviewed Craig today, and he cannot believe the difference the surgery has made to his hand. For the first time in 18 months he can finally feel the tips of his fingers and his almost‑instant relief after the surgery." He noted that the plaintiff had, by that time, returned to driving a truck. Of course, that would date the onset of symptoms to August 2012 after the plaintiff was examined by Dr Burns on 15 March 2012 and by Dr Hopcroft on 13 June 2012 and he had no symptoms or complaints referral to a carpal tunnel syndrome.
Given those facts, if the matter were res integra, I would find that the carpal tunnel syndrome was not causally related to the motor vehicle accident now in question. The plaintiff had returned to working fulltime as a truck driver and returned to doing heavy, arduous work on his farm. Nevertheless, notwithstanding what I have just observed, no medical practitioner has expressed a view that supports the view that I have reached. Accordingly, as there is no medical issue about it, I have to accept that the plaintiff's carpal tunnel syndrome was causally related to the motor vehicle accident now in question, although I have personal doubts about it but that is what the evidence suggests.
Insofar as the out‑of‑pocket expenses include the cost of the treatment of the carpal tunnel syndrome, they are part of the relevant out‑of‑pocket expenses. Accordingly, having said what I have just said, there appears to be no issue that the plaintiff has properly run up out‑of‑pocket expenses amounting to $7,360.27.
The plaintiff's only remaining claims are for future loss of earning capacity, future out‑of‑pocket expenses and future "care". The question is does the plaintiff have any continuing problem with either his forearm, his back or his left hip? Suffice it to say that I am not satisfied on the balance of probabilities the plaintiff directly injured his hip by way of subluxation or partial subluxation and therefore there is no ongoing sequela of any problem for which the plaintiff complained of a tenderness around his hip at the Macksville District Hospital on the morning of 28 April 2011.
The question for me is whether the plaintiff has an ongoing problem with his forearm. I accept that he does but it is relatively minor. The medical evidence makes that case out. As far as the low back pain is concerned, the plaintiff has consistently told every doctor who has examined him since 15 March 2012; that is, for four and a half years, that he has continuing symptoms in his low back. They clearly wax and wane but the complaint is consistent. It is one of the few consistent things in the plaintiff's medical presentation. I note, with some bemusement, that the defendant says the plaintiff only complained about low back pain three years after the motor vehicle accident but that is just an untenable proposition.
The plaintiff has some pre‑existing degenerative changes. I accept that they were pre‑existing degenerative changes. Everybody says so in this case except for Dr Chris Oates. That practitioner refers to them as "post‑traumatic degenerative changes" but that is an untenable proposition because, for any radiological abnormality to appear after an injury to the low back, one must expect some six months to elapse and the degenerative change is generally referrable to some injury to a low lumbar disc. Here, the degenerative changes were seen on the day after the motor vehicle accident and clearly could not have been caused by it.
However, some doctors say that there is nothing wrong with the plaintiff's low back. Others say that there is a continuing problem with the low back. In that regard, ultimately, I look for some independent opinion and I have it from Dr Bodel who, as I said earlier, assessed the plaintiff for the Medical Assessment Service of the Motor Accidents Authority and reached the view that the plaintiff had a 5% whole‑person impairment rating resulting from the condition of his low back. I have to admit that I have approached even Dr Bodel's opinions with some caution because after spending some considerable time, over five pages, discussing the documentation available to him, Dr Bodel said this: "Mr Fuller's history is consistently reported to everybody who has examined him." That, with the utmost respect, represents a very poor assessment of the medical evidence I have read. However, on the question of the plaintiff's low back Dr Bodel said this: "This gentleman does have tenderness on palpation at the lumbosacral junction on the left side with some guarding in that area. He reaches forward in flexion with his hands to the mid‑tibia and there is increasing back and left buttock pain at this point and there is also some discomfort on extension. He has a reduced range of lateral bending and this is most restricted on a lateral bending to the left. There is therefore some asymmetry of movement (dysmetria). He has however no impairment of straight‑leg raising however and there is no wasting in either thigh or calf. There is no demonstrable weakness in either lower limb and no weakness of knee flexion on extension or ankle movement. There is no reflex abnormality and no objective sign of sensory impairment in the lower limbs. There are no clinical signs of radiculopathy in the lower limbs." I have quoted the latter part of that opinion in full because some doctors say that there is some evidence of radiculopathy but there is no consistent finding of radiculopathy by anybody and perhaps some doctors, from time to time, have ascertained a complaint of referred pain into a lower limb. After giving a 5% WPI because of the condition of the plaintiff's low back, Dr Bodel expressed this comment: "This gentleman does have a DRE Lumbosacral Category II level of assessable impairment in accordance with the description in Table 72 on page 3/110 of AMA4. There is asymmetry of movement or guarding and no clinical sign of radiculopathy and there is a 5% Whole‑Person Impairment rating. I am satisfied that this has arisen as a consequence of the motor vehicle accident." It is the last sentence of what I have just quoted that I find convincing. Dr Bodel was aware that there are a large number of issues involved in this case, a number of which I have already canvassed.
However, it is clear that medical records were available to the parties of the plaintiff's condition prior to the motor vehicle accident now in question and there is no suggestion that the plaintiff had ever previously complained of any symptoms in his low back at all. There are a number of differential diagnoses that could be made of the condition of the plaintiff's low back. The differential diagnosis offered by Dr Bodel was "soft tissue", although I am reluctant to embrace such a diagnosis. Suffice it to say that there had been some change or elevation in the degenerative condition of the plaintiff's low back, even the precipitation of symptoms of that degenerative condition, and that appears to have been persistent for some five and a half years now, and, in my view, is likely to be permanent.
Dr Bodel also found a 2% whole‑person impairment because of a rateable restriction of movement of the left wrist. At the time that Dr Bodel saw the plaintiff there was no residual sign of the carpal tunnel syndrome. The issue as to whether the plaintiff's continuing problem in his left wrist is referable to the injury of 1996 or the motor vehicle accident of 2011 is really solved by an internal conflict in the reports generated by Dr Mark Burns. In a supplementary opinion of 28 August 2015 the doctor makes these comments about earlier reports that were provided to him: "In a report also dated 24 February 1997 Dr Graham found 'a slight reduction in extension of the left wrist'. There is full flexion of the left wrist as well as radial‑ulna deviation. Finally, in a report dated 16 December 1998 Dr Farey, treating orthopaedic surgeon, found 'there was an excellent range of motion in the wrist which was pain‑free'." Compare those observations with Dr Burns' findings, which are found on p 5 of his report of 8 October 2014, that flexion of the left wrist was reduced by 10° compared to the right and radial deviation of the left wrist was reduced by 5° compared with the right. No such findings had been made back in 1997 and 1998. I accept that the plaintiff has some ongoing problems in his left wrist causally related to the motor vehicle accident now in question but of relatively minor consequence.
The plaintiff's work history is almost impossible to work out; that is, his work history after the motor vehicle accident now in question. Fortunately, the plaintiff makes no claim for past economic loss for any period after 27 July 2011 to date. The plaintiff clearly works long hours, doing hard and arduous work on his pig farm. He clearly has the ability to work long hours as a long‑haulage truck driver driving between the capital cities of this nation although he prefers to work on the north coast of New South Wales, a preference one can easily understand.
I should indicate that the medical evidence, in particular, Dr Hopcroft, suggests that the plaintiff now has some neck pain where there is clearly degenerative change and although it is of recent onset, Dr Hopcroft relates it to the motor vehicle accident in question. But even the plaintiff himself, in his histories, does not.
What will the future hold? If the plaintiff continues to do heavy work, which he obviously will because that is his whole working life, one could expect the inevitable progression of the degenerative disease in his low back heightened, as it has been, and permanently, in my view, by the effects of the motor vehicle accident. I anticipate that the plaintiff will, towards the end of his expected working life, suffer economic loss.
Mr Doherty SC, for the plaintiff, suggested that an appropriate buffer to award the plaintiff for future economic loss was around $100,000. That buffer was large enough to refuse an appellation of a "cushion" by me. However I asked counsel, in the course of addresses, to perform some calculations for me. I asked the plaintiff to postulate a loss of $800 per week for a period of five years, deferred for 15 years, representing a loss of $800 a week between the ages of 60 and 67, the current normal retirement age. Using the appropriate discount figures and applying the 15% discount for vicissitudes of life, a figure of $101,198 was reached. The $800 per week is, in my view, what one would need to pay a labourer to work on a farm such as the plaintiff's piggery at today's rates on a net basis. In my view, therefore, I am happy to award the plaintiff a lump sum of $100,000 as a buffer against future economic loss resulting from the motor vehicle accident, now in question.
The plaintiff also claims for future out‑of‑pocket expenses. This is wholly speculative and I believe the sum of $2,000 is adequate to cover future eventualities a long time into the future.
The plaintiff also claims for "paid domestic care" in the future. I cannot allow such a claim. The plaintiff is doing heavy work, has done it all his life and will continue to do it at least until age 60. Having done that, to suggest the plaintiff will not be able to clean his own home, to dress himself, feed himself, et cetera, is, in my view, risible. The only support given for it is by Dr Oates but I am not impressed by Dr Oates's opinions. I am not impressed by his opinion about post‑traumatic degenerative changes in the plaintiff's low back nor can I accept this statement made by Dr Oates: "X‑ray of the left hip has shown avulsion fracture at the superolateral aspect of the acetabulum (socket) of the hip and this may result in ongoing intermittent symptomatology in his hip." The only X‑ray of the plaintiff's hip is an X‑ray made at the request of Dr Hopcroft on 12 May 2014; that is, it is made merely for medico‑legal purposes. The report is reported by the radiologist, Dr Jain, as this: "Normal femoroacetabular articulation is seen. No significant bony abnormality is seen. A tiny bony fragment is seen adjacent to the superolateral aspect of the acetabulum. It may represent a small osteophyte or may be related to old trauma." No‑one has disagreed with that radiological report. In fact, Dr Oates quotes it on p 4 of his report but then expressed the above view of the X‑ray on p 7. To suggest that the X‑ray does show an avulsion fracture is based on the presence of the bony fragment and postulates that the bony fragment was caused by such a fracture and there is no direct evidence of such a fracture at all. It is merely speculation, on the doctor's part, turned into a positive assertion to promote the plaintiff's case. I do not accept the plaintiff has any future need of "care".
The total of the sums that I have referred to; that is, the agreed loss until 27 July 2011, the agreed out‑of‑pocket expenses, the amount I have allowed for future economic loss and the amount I have allowed for future out‑of‑pocket expenses, is $126,186.19.
I have inquired of counsel for the parties were any further reasons for judgment required. I am told that none is so required.
For those reasons, I give verdict and judgment for the plaintiff against the defendant for $126,186.19.
I order the defendant to pay the plaintiff's costs on the ordinary basis until 22 April 2016 and on an indemnity basis from 23 April 2016.
I grant a stay of proceedings until Friday 16 December 2016. The matter can be mentioned before me on that day. If the defendant wishes an extension of the stay, the defendant is to file the appropriate evidence. The evidence is to be served by 4pm on Friday 9 December giving the plaintiff an opportunity to put on any evidence he wishes to put before me on the stay application. Liberty to apply to my Associate to vacate the mention if no further stay be sought.

Fuller v McLeod

At a glance

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Judgment (13 paragraphs)

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Legislation Cited (2)

Cases Cited (5)