History and Background
2 The plaintiff was born in Liverpool in England on 13 November 1949 so that he was 42 at the time of the consultations complained of and is now aged 51. He went to school in Liverpool until age 15, but is unable to read or write. He commenced part-time employment with a butcher at age 11, and after leaving school obtained employment with a transport company loading trucks at wharfs. After that he became a machine operator in about 1967. He was married on 23 March 1968 in Liverpool and he and his wife have two children, now aged 31 and 23 respectively. In 1968 he commenced work with Nicholas Transport in Liverpool as a driver and continued in that position until he migrated to Australia with his family in 1974.
3 On his arrival he quickly obtained employment as a machine operator with Metal Manufacturers at Port Kembla, operating a wire drawing machine and remained there for 18 months until he obtained employment with another company at Wollongong, and then in 1976 he commenced employment with the Department of Main Roads as a machine operator, but in 1976 as his wife was homesick the family returned to England. He was unable to obtain employment there so they all returned to Australia the following year and he resumed his position with the Department of Main Roads where he remained until 14 November 1983 when he commenced employment with Commonwealth Industrial Gases Limited now British Oxygen Gases Limited where he remained until his employment was terminated in 1995.
4 He originally drove rigid trucks delivering oxygen bottles, but after a couple of years he commenced driving articulated bulk liquid tankers, and he continued doing such work until the events complained of in these proceedings. In 1984 the plaintiff and his wife bought their home in which they still reside, and apart from the accidents to which I will shortly refer his general health was good. He was in the habit of working 12 hour shifts up to 6 or 7 days a week. He rode his pushbike to and from work, a distance of 18 kilometres each way and he also rode a wave-ski in the surf after work about once or twice a week. He and his wife went on social outings, picnics etc and he also worked around the house doing renovations and painting and attending to the garden. In 1991 he took part in the Sydney to 'Gong Tenth Anniversary Bike Ride, a distance of 92 kilometres.
5 In 1985 he slipped off the fuel tank of a truck and jarred his knees, neck and back. He had a week off work and after that the pain was no problem. In 1997 he was badly shaken around in the cab of his truck on a bumpy road, as a result of which he developed headaches and neck pain. Following this he was referred to Dr Moloney, neurosurgeon, but the problem settled down after a short time.
6 There was another incident on 23 April 1990 when he was driving on Cowpasture Road to Blacktown, and on a right hand bend he hit his head on the roof of the cabin of his truck when going over a bump. As a result of that he grazed his head and forehead, split his lip and loosened 4 teeth. He experienced neck pain, headaches and a tingling sensation in 3 fingers of the left hand. He was referred to Dr Silva, orthopaedic surgeon whom he saw on 24 April and 4 May 1990. The headaches improved but he continued to suffer some discomfort over the nape of the neck and on 4 May 1990 he also reported some low back pain over his left buttock present for the previous 3 or 4 days.
7 On 9 July 1990 he again saw Dr Moloney concerning the exacerbation of his neck pain and the tingling down his left arm and paraesthesia in the medial 3 fingers of his left hand. There was also a reference to low back pain radiating into the left gluteal (buttock) region. It seems that at this stage he was off work for 3 weeks and then resumed his normal duties, continuing to ride his bike to and from work and continuing to wave-ski and with his social activities. It was after this incident that he took part in the Sydney to 'Gong Bike-Ride in November 1991.
8 However, he continued to have the tingling and paraesthesia in his left arm which he described as a "deadening feeling" and at times his arm seemed to lose all power. When he had this feeling whilst driving the truck he was in the habit of grabbing hold of the seat and stretching his neck, which relieved the sensation in his arm after 5 to 10 minutes, and at other times he would rotate his arm which had the effect of bringing the power and feeling back.
9 This continued until June 1992 when he was at the company headquarters at Wetherill Park and the occupational health nurse saw him rotating his arm in this manner and suggested that he should see the company doctor, Dr McGroder. He saw Dr McGroder on 18 June 1992 who referred him to the chiropractor, Dr Ayscough, whom he saw on 30 June 1992. There was considerable dispute at the trial as to what occurred at each of those consultations and I shall refer to them in more detail later. Dr Ayscough referred him for x-rays of his cervical spine and these were done by Dr Dreverman, also on 30 June 1992.
10 After his visit to Dr Ayscough the plaintiff's neck and the left side of his face were very sore and he said that whilst driving home he became aware of pains in his left buttock extending into his left leg. The following day, 1 July, he saw his local practitioner, Dr Gupta, complaining of neck pain and was referred back to Dr Moloney, whom he saw on 25 August 1992. In the mean time he was only able to work half a day on 1 July and after that, although he continued working, he did not ride his bike to or from work because of the pain, and he ceased work altogether on 20 August 1992.
11 When he saw Dr Moloney on 25 August he complained that there had been a flare up in his neck problem over the last several months, that he had seen Dr McGroder and the chiropractor, and that the manipulation had made his neck pain and arm pain a good deal worse. He also complained of low back pain radiating into the buttock and into the thigh on the right side. On examination his cervical spine movements were restricted, particularly to the right side, and an examination of the x-rays revealed narrowing of the C5/6 disc space with marked osteophyte formation and Dr Moloney requested a myelogram. The myelogram and CT scan of 1 September revealed a prominent spondylotic bar formation at C5/6 level with probable early compression of the cord, marked compression of the left C6 nerve root, and to a lesser extent of the right C6 nerve root and with mild encroachment upon the underlying dural sac at that level. On 3 September 1992 Dr Moloney carried out an anterior cervical discectomy and fusion.
12 Following this the plaintiff had hydrotherapy, but after a couple of weeks he developed a skin infection which was very painful and lasted about 4 months. He was reviewed by Dr Moloney in October and on 16 November 1992, at which time he was still getting quite a lot of neck and arm pain and was also complaining of low back and leg pain which he said had come on since the chiropractic manipulation. By 30 November the cervical spine was gradually settling down and a scan showed an effective fusion at C5/6 with no significant abnormality elsewhere, but the plaintiff continued to have ongoing problems with his lumbar spine and leg pain.
13 An MRI scan in December 1992 showed loss of signal intensity in the L4/5 interspace indicating a dysfunctional spinal unit at that level and accordingly Dr Moloney applied a cast to the lumbar spine to effect an external immobilisation. This reduced the pain whilst the cast was in place, but upon removal of the cast the symptoms recurred within a couple of hours, so on 12 February 1993 Dr Moloney carried out an L4/5 spinal posterolateral fusion utilising a Steffee internal fixation, but the fusion was unsuccessful and so a re-exploration was carried out on 2 July and this was associated with a post-surgical infection of a golden staph nature. He was again in hospital in May and June and on 2 July 1993 a further exploration was carried out. He was in and out of hospital and the treatment of the lower back was not successful. He described it as extremely traumatic and depressing and in August 1993 he was seen by Mr Garry Wenzel, a psychologist, to treat the depression. On 5 July 1994 he had a further lumbar myelogram and on 15 July 1994 an epidural injection which did not help. He was reviewed on 20 July 1994 by Dr Moloney who expressed the opinion that no further treatment would assist, and that the plaintiff was permanently unfit for work.
14 The plaintiff continued to suffer pain, particularly in his lower back and a number of investigations were undertaken. A bone study on 17 May 1995 showed facet joint arthritis at L3/4 on the left side, a Whole Body Bone Study by Dr Lyons of Illawarra Nuclear Imaging on 8 March 1996 showed that the L4/5 graft appeared normal with no evidence of fracture or pseudarthrosis or of active facet joint arthritis. The cervical spine fusions also appeared stable.
15 In early February 2000 the plaintiff's back symptoms deteriorated, an MRI scan on 14 February 2000 revealed bulging at L4/5 with a small annular tear while a Bone Study on 21 February indicated a fracture of the L4/5 bone graft and minor facet joint changes at the L3/4 and L5/S1 levels.
16 He was admitted to Illawarra Hospital on 24 March 2000. Dr Moloney carried out a complete disectomy and graft refurbishment at the L4/5 interspace.
17 Following this the plaintiff continues to have neck pains, headaches, left arm and lower lumbar back pains, and the pain in his lower back and left leg is continuous.
18 He can no longer ride his bicycle, walk more than about 5 kilometres, or sit in low chairs and he has to use a cushion to straighten his leg. He cannot touch his toes, put on shoes, socks or pants without assistance, he cannot do maintenance around the home, garden, drive for long periods and sexual relations with his wife have ceased. He is constantly in pain and he is continuing to take medication for pain. He is able to mow the lawn and use the whipper snipper if somebody else starts these machines for him. He can only travel about 50 kilometres in the car before he suffers pain and has to stop. His employment was terminated by his employer on 8 March 1995, although he has not worked since 20 August 1992, and I am satisfied that having regard to the nature of his injuries and continuing pain and disabilities, his age, illiteracy and lack of training he will remain totally and permanently unemployable.
19 A number of factual issues emerged in the case, namely whether the plaintiff had lower back pain prior to seeing the defendants in June 1992, if so, whether there was an increase in such pain with extension into his left buttock shortly after the manipulation or whether that only occurred some 6 or 8 weeks later, and precisely what occurred at the consultations with both Dr McGroder and Dr Ayscough.
20 Overall I found the plaintiff and his wife impressive witnesses and I am satisfied that they were endeavouring to tell the truth as best they could recall it. The plaintiff being unable to read or write, was at a considerable disadvantage because he could not refer to notes or records to assist his memory, but although he was prepared to make concessions on some matters, e.g. the pre-manipulation examination by Dr Ayscough, there were other matters on which he was adamant, e.g. the nature of the manipulations and whether there was any physical examination by Dr McGroder. He did not impress me as a person who was attempting to exaggerate his symptoms in any way; indeed it would be almost impossible to exaggerate his symptoms because the uncontradicted evidence is that his spine, particularly his lumbar spine, is now a wreck.
21 There was one stage in his evidence when he tried to correct what he had previously said but later retracted the correction, and I got the impression that by the third day of his giving evidence he was tending to agree with the cross-examiner for the sake of agreeing so as to get the matter over and done with, and ultimately at T 166 the plaintiff became distressed and I found it necessary to stand him down for a time and interpose another witness. In addition, his lack of sophistication and education is such that I consider it unlikely that he would be capable of fabricating a description of the manipulations as he described them if he had not actually experienced them; and I do not regard it as insignificant that, according to his wife, who also impressed me as an honest witness, the descriptions he gave to her on the afternoon of the manipulations coincided with the descriptions he ultimately gave in court.
22 On the other hand, there were some discrepancies in the records kept by the two defendants, they appeared to contradict each other as to conversations between them immediately following the plaintiff's visit to the second defendant, the letter written by the second defendant to the first defendant dated 10 December 1992 (Ex. J) is in some respects inconsistent with his evidence in this court (particularly as to whether he manipulated or adjusted the lumbar spine), and the letter written by the first defendant to his employer (addressed to C Waters) dated 23 December 1992 (Ex. N) apparently following receipt of Dr Ayscough's letter is hardly consistent with what Dr Ayscough had told him in the earlier letter, particularly as to whether the consultation had resulted in an assessment or a treatment.
23 There were further conflicts between the evidence of Drs McGroder and Ayscough. The plaintiff said he went back the following day (1 July), and told Dr McGroder that because of the pain that had been caused by the manipulations he was not going back to the chiropractor anymore. He certainly did not go back. Dr McGroder denies that this meeting took place, but recalls a later conversation and made a note on Ex. K apparently dated 30 July 1992, although the date is not clear, to the effect that the plaintiff only had one chiropractic treatment and felt worse and the note goes on, "Couldn't follow up for logistic reasons. Saw his GP in W'Gong & referred back to Dr P Moloney". But Dr McGroder said that he followed up the plaintiff's treatment a few days later by telephoning Dr Ayscough which Dr Ayscough denies or at least cannot recall.
The plaintiff's lower back
24 There are a number of indications that the plaintiff did suffer low back pain and pain radiating into the buttocks prior to the consultations in June 1992, apart from the plaintiff's evidence at T 12 and the history he gave to Dr Bornstein when he first saw him (report of 10 October 1994). There are references to low back pain in Dr Jones' referral of the plaintiff to Dr Moloney dated 26 June 1990 (Ex. 6), Dr Silva's letter to the plaintiff's employer dated 4 May 1990, in Dr Moloney's report of 9 July 1990 and the oral evidence of Dr Moloney at T 116-117. It would seem that the low back pain, although present, was not the major problem in the period leading up to 30 June 1992, and the plaintiff's evidence in this regard is supported by the fact that on any view of the matter the referral by Dr McGroder to Dr Ayscough was in terms only for the neck; and when Dr Ayscough referred the plaintiff for x-rays that day he only did so for the cervical spine (see Dr Dreverman's report).
25 The increase in pain in the low back with referred pain in the left buttock promptly after the manipulation depends largely on the evidence of the plaintiff and what his wife says he reported to her. When he contacted Dr Gupta, the following day (as I am satisfied he did as a result of the Medicare schedule) it appears to have only been for neck pain because the referral from Dr Gupta to Dr Moloney of 24 August is only for neck pain; but the plaintiff says that it was following the manipulation that he ceased riding his bike, and in his report of 3 September 1992 relating to the consultation on 25 August Dr Moloney specifically refers to the plaintiff then complaining of low back pain radiating into the buttock and into the thigh on the right side. The doctor requested a lumbar myelography and in his letter to Dr Gupta of 16 November 1992 he refers to the plaintiff complaining of low back and leg pain which had come on since the chiropractic manipulation. On 7 October 1994 the plaintiff told Dr Bornstein that the chiropractor precipitated symptoms in the lumbar spine and then to the leg.
26 It seems to me that following the manipulations he did have an increase in pain both in the neck and the lumbar spine, but in the immediate period the neck was the more significant and therefore the neck received more attention while the low back was considered secondary, although because of the unsuccessful fusions, it has since become the major problem. I am satisfied that following the manipulations the lower back pain was increased and it included referred pain into the left buttock which, although previously present in 1990, had not been present for some time.