The medical evidence
134 The plaintiff was admitted to Fremantle Hospital on 29 January 2002. He suffered a fracture of the left iliac blade extending into the left sacroiliac joint, diastasis of left sacroiliac joint and pubic symphysis. In that hospital, the plaintiff underwent two operations, one on his left wrist and he had an intra-medullary nail inserted into his left femur and across his symphysis (Ex J). The nail caused the plaintiff a lot of discomfort and ultimately when he had it removed, the pain in that region lessened.
135 The plaintiff was discharged from Fremantle and transferred to Royal Perth Hospital where he underwent surgery to his pelvis on 2 February 2002. On 12 February 2002, he was readmitted to Fremantle Hospital for follow up pelvic surgery. The hospital notes say that he progressed well without complication. On 20 February 2002, he was discharged. Between February and August 2002, the plaintiff's wife Sandy took six months off her legal studies and university to care for the plaintiff.
136 In April 2002, the plaintiff was still experiencing pain in his left hip and lower back. By July 2002, the plaintiff slowly improved in his physical condition. He underwent physiotherapy. By November 2002, he could manage about 200 metres of running. To him this was disappointing because pre-accident he was capable of running more than 2½ kilometres.
137 For the first six months following the accident, the plaintiff's mobility and ability to care for himself were severely curtailed. He was unable to provide even the most rudimentary care for himself. When he was discharged from hospital he was in a wheelchair (t 61.58). It was the plaintiff's evidence that when he returned home after hospitalisation he was able to do "nothing at all" and his wife had to do everything to care for him (t 62.40). This included carrying him to and from the toilet and shower, holding him up in the shower, drying him and putting him to bed. He could eat with one hand unassisted, but without the use of a second hand was unable to cut anything (t 62.42-62.48). After six months passed, the need for domestic care tapered off.
138 By the end of 2002, the plaintiff said he was getting better every day as the pain reduced, but he still had trouble sleeping. He was able to care for himself in terms of washing, grooming and personal hygiene for the most part (t 66.44). Whilst he had resumed many of his home duties, he had difficulty working low to the ground. He was able to resume some sweeping and cooking. He gave evidence that his symptoms reduced what he could do, and he needed to take regular rest breaks (t 67.43). In late 2002, the plaintiff returned to the Navy as a safety number in the Reserves, but he did not cope well due to pain in his pelvis and hips (t 68.18). By the time he moved to Donnybrook he was independent, with self care and did not require any domestic assistance of the Griffiths v Kerkemeyer (1977) 139 CLR 161 type.
139 The plaintiff gave evidence that as he continued to improve, his headaches grew closer and closer together. By mid 2003, he was gradually getting better (t 69.1-69.26). During 2003, the plaintiff says that his wife noticed that he had difficulty remembering things. He also had difficulty maintaining concentration (t 71.05). The plaintiff's conversations with his surgeon about his condition made him feel terribly angry and frustrated (t 71.36). Although psychiatric treatment has been recommended and is favoured by his wife, the plaintiff has a fairly entrenched view that he will not avail himself of the services of a psychiatrist in the future.
140 Since mid 2003, the plaintiff says that he felt that he was not getting any better or any worse. When asked if he was still on such a "plateau", he replied that he was "gradually heading south" (t 75.29). In carrying out physical work, such as erecting a shed, the plaintiff describes his symptoms as "shocking" on some days, requiring painkillers. He did some work at a hardware store as a "work trial" in Donnybrook, but suffered hip pain and was too slow at work to gain employment.
141 At the outset, so far as the medical evidence is concerned, I accept that the plaintiff is no longer able to carry out the type of physically challenging work he was doing at the time of the accident. He should avoid heavy lifting, repetitive bending and/or twisting due to his injuries, mainly to his pelvis. I shall discuss his psychological and psychiatric condition shortly.
142 Professor Ehrlich, orthopaedic rehabilitation specialist, has furnished three reports namely, 10 July 2004, 24 September 2003 and 6 June 2006. He gave evidence and was cross examined. On examination Professor Ehrlich recorded that the plaintiff's head injuries caused headaches, and he has no specific complaints about his left wrist, despite losing a lot of movement. He recorded that the ongoing pain was in the plaintiff's pelvis and left hip. He stated that, "the symptoms are too severe to return to normal duties, but he can manage lighter selected work." Mr Ehrlich's opinion was that the plaintiff should be regarded as unfit to return to his physically demanding pre-injury duties at this stage and may never be able to do so.
143 As at 6 June 2006, Professor Ehrlich noted the worsening of the plaintiff's condition and stated that, despite it being possibly decades before the plaintiff's function is so seriously impaired as to require joint replacement, that the injuries were already sufficiently severe to prevent him carrying out the amount of physical activity that was required in his previous occupation. He stated that whether or not the plaintiff would require a hip replacement depended on "how sore it is" but said he might when he is in his 50's (t 188.15).
144 When asked about knee replacement, Professor Ehrlich stated that he had not seen an x-ray of the plaintiff's knee, but that it would probably show that the plaintiff had osteoarthritis. That meant that the plaintiff would likely require a knee replacement (t 188.20-188.40). At the time Professor Ehrlich examined the plaintiff, he did not have any hernias (t 189.53). Professor Ehrlich stated that the plaintiff's pre-existing intermittent neck pain did not affect his diagnosis, and that he did not consider the neck pain to be "very significant" (t 190.04-190.20).
145 On 11 July 2003, Judith Davidson, a consultant occupational therapist and hand therapist carried out an assessment on the plaintiff, in the presence of his wife. She recorded that the plaintiff's was unable to answer most of her questions, and he consistently relied on his wife to provide answers. Ms Davidson suspected that he had ongoing neurological problems as a result of the head injury sustained in the accident (report 1/08/2003). The plaintiff did not present in the manner described by Ms Davidson when he gave evidence in this Court.
146 On 11 August 2005, Dr Stephen Dennis, an occupational physician, examined the plaintiff. He noted the plaintiff's physical injuries, and indicated the possibility of post-traumatic stress disorder, which would be a barrier to his successful return to the workforce. He opined that the plaintiff was not fit to return to his pre-injury employment, and that his current treatment would need to continue on a symptomatic basis. Dr Dennis was unable to indicate how many hours per week the plaintiff would be able to undertake in suitable employment, but concluded that while the potential for return to full time employment exists, it is not possible at present, and may not be possible in the long-term.
147 On 5 October 2005, Mandy Vidovich, a clinical neuropsychologist examined the plaintiff. In her report dated 10 October 2005, she discussed the outcome of a number of reading, intelligence and memory tests that she carried out on the plaintiff. She assessed the plaintiff's overall level of intellectual functioning was assessed as being average, with his results on the Working Memory Index and Processing Speed Index marginally weaker than may have been anticipated. She stated that based on the medical history available regarding the nature of the plaintiff's injuries, and while she noted the changes on his cranial MRI, it would appear most unlikely that the cerebral trauma sustained at the time of the fall had resulted in significant and persistent cognitive dysfunction. She considered any form of closed head injury sustained at the time to be mild in nature.
148 Mr Anthony, a clinical psychologist, came to a different conclusion. Mr Anthony carried out psychometric testing on the plaintiff, and found some deterioration in conceptual ability, both verbal and non-verbal. He considered non-verbal responses to be very slow. Using the Wechsler Memory Scale, Mr Anthony was able to identify memory deficits, particularly in relation to auditory memory. In the Rey Complex Figure Test, the plaintiff scored in the 70th percentile, and responses were considered poorly organised and segmental with errors of omission and integration. His word fluency scores were in the low normal range. Mr Anthony's view was that the plaintiff did not have the cognitive ability to function at trade level (report 31/05/2006).
149 On 22 August 2003, Dr Michael Fallon and Dr Rodney Butler provided a report from the Magnetic Resonance Centre of Perth Radiological Clinic. They found that the MRI scan was consistent with a previous history of a closed head injury. On 24 September 2003, Professor Ehrlich commented on the MRI of the head, finding and confirming that the past head injury was severe enough to cause some bleeding in the brain.
150 Dr Teychenne (report 31/05/2006) a consultant neurologist, considered the plaintiff had cognitive deficits as a result of traumatic brain injury. He found the plaintiff to be depressed, and had restriction of straight leg raising on both sides. He noted pain over the lumbar spine. He attributed a limp in the left leg as secondary to the pelvic fractures. He found the plaintiff to have decreased right biceps and triceps reflex and neck pain. Dr Teychenne considered the prognosis in regard to the head injury as, at best, fair, and stated that it will effect the plaintiff's employment potential, at best being able to carry out low grade clerical work. Dr Teychenne considered the plaintiff virtually totally incapacitated for work in view of the cognitive deficits and physical deficits associated with the pelvic fracture and fracture of the left radius bone.
151 Dr Richard Wu, a consultant psychiatrist, had interviewed the plaintiff on 10 July 2003, and had carried out a Beck Depression Inventory and a Hamilton Depression Rating Scale on the plaintiff. He scored 26 on the Beck Depression Inventory which substantiated his reported symptoms of depression and placed him in the moderate to severe range of Major Depression. In the opinion of Dr Wu, the plaintiff suffered persisting symptoms of Major Depression and Post Traumatic Stress Disorder, caused by the fall he sustained whilst on active naval duty (report 15/09/2003).
152 Dr Peter Morse, a consultant psychiatrist, commented that the plaintiff did not present as depressed. He stated, however, that in his view the MRI findings cannot be ignored, as there was an indication of bleeding on the brain. It may be of a minor nature, but can also indicate quite severe disruption between parts of the brain. He noted a brief period of pre-trauma amnesia. Dr Morse's opinion was that there was quite definite evidence from the MRI findings that he suffered trauma to the brain, and sufficient evidence of actual brain trauma pointing to at least a partial causation of cognitive difficulties. He diagnosed the plaintiff with post traumatic stress disorder. The plaintiff attended Dr Shrub, a psychiatrist, at the behest of Transfield. This report has not been served.
153 In order to assess the extent of the plaintiff's injury to his brain, the evidence of those who have known him before and after the accident provide some assistance. While the plaintiff's wife, Sandy, did not give evidence, his friends and fellow Navy Reservists Mr Askew, Mr Clarke and Mr Gaias gave evidence as to their observations of the plaintiff's physical ability and behaviour both before and after the accident.
154 Mr Askew visited the plaintiff in hospital four days after the accident. He visited the plaintiff at his home and on his farm at Donnybrook. At his home, Mr Askew observed the plaintiff to be in good spirits and observed that the plaintiff was not limping and his physical ability was similar to before the accident. Mr Askew did not observe any difference in the plaintiff's memory, concentration and personality from before the accident. Mr Askew accompanied the plaintiff when he attempted a "nursery" abseil but the plaintiff complained of pain.
155 Mr Allan Clarke visited the plaintiff in hospital, at home at Rockingham and at Donnybrook every few months. Mr Clarke described the plaintiff prior to the accident as active, and said that if you gave him a job he was reliable and would do a very good job. The plaintiff was fit and competent.
156 Mr Clarke observed that after the accident, the plaintiff was not as competent and was worried. He stressed about his future. Mr Clarke did not observe the plaintiff carrying out any work on the property. A few times after the accident, Mr Clarke and a group of friends took the plaintiff out for some bicycle rides along forest tracks for about five kilometres. The plaintiff was very slow and hesitant. Mr Clarke was a kayak instructor and arranged for the plaintiff to come to three sessions. The plaintiff only lasted for about half an hour and it was only on the third attempt that the plaintiff managed to achieve an "Eskimo" roll. However, Mr Clarke had been white water kayaking with the plaintiff prior to the accident and at that stage he did not consider the plaintiff capable of performing an Eskimo roll.
157 Mr Gaias gave evidence that he has known the plaintiff for over 20 years. Prior to the accident he observed the plaintiff to be a very keen and fit person. They ran together participating in events as a team. According to Mr Gaias, the plaintiff was very tenacious, a hard worker, reliable and not the sort of man who would shirk work. He could always be relied on, would do a good job and do his fair share (t 329.54-56; 330.1-6).
158 Mr Gaias observed that since the accident there is a big difference in the plaintiff's physical prowess. He described the plaintiff as still being very determined, doing the best that he can but there was no comparison to what he used to be able to do. Mr Gaias said that the plaintiff had to be positive and happy, but he was sure that he was not the same person that he was when they used to run and do all those other more physical activities such as climbing and abseiling, kayaking and going down rapids (t 336.32-50). I accept that since the accident there have been subtle changes in the plaintiff's personality which have been observed by Mr Clarke and Mr Gaias. It is my view that the plaintiff suffered some mild brain damage which has slightly affected his personality, memory and concentration. This view is supported by the MRI scan and Dr Ehrlich, Dr Teychenne and Dr Morse.
159 Dr Alan Home, an occupational physician, (report 18/09/2006) reported that the plaintiff's condition had stabilised, but due to his ongoing low back discomfort related to activity, the plaintiff was not fit for his pre-injury occupation. Dr Home was of the opinion that the plaintiff has reached maximum medical improvement in relation to his left wrist and hip injuries but he is incapable of undertaking heavy manual labour which involves heavy loading through his left wrist and left hip region, and within these parameters, the plaintiff is capable of full time employment.
160 Dr Home opined that the plaintiff is physically capable of undertaking a wide range of work including work as a domestic cleaner, a trainer in a light mechanical workshop, a process worker, shop assistant or workshop supervisor. According to Dr Home, the plaintiff is fit to train for work as an estimator or supervisor within the mechanical trades or sheet metal workshop environment.
161 Mr Michael Alexeeff, a consultant orthopaedic surgeon, (reports 21/11/2006 & 24/11/2006) reported that the plaintiff remained symptomatic but had recovered reasonable function. He found no major neurosurgical intra-cranial injury. He was of the opinion that the plaintiff should sensibly avoid heavy lifting, working in an awkward posture, activities requiring repetitive bending and/or twisting and other generally heavy and physically demanding work.
162 Both Dr Home and Mr Alexeeff were of the opinion that the plaintiff would not require nursing, an attendant and/or domestic care in the future, nor would he require physiotherapy, occupational therapy or remedial therapy.