(b) POST ACCIDENT
16 As a result of his fall, the plaintiff was admitted to Bowral Hospital, where he remained for 3 days. A plain x-ray, taken on 20 May 1999, was reported as showing:
" PELVIS AND LEFT FEMUR
A fracture extends through the central portion of the left acetabulum superiorly and medially towards the mid to upper portion of the left sacro-iliac joint. There is minimal separation at the inferior aspect of the fracture. A linear fusion defect is visible from the posterior elements of the S1 which is unlikely to be of any clinical significance. No other bone or joint abnormality is seen.
LUMBO-SACRAL SPINE
No fracture or further abnormality is seen. The discs are well preserved in height and the alignment appears normal."
17 The plaintiff's immediate care was undertaken by Dr Leicester, who saw him at various times up to 18 February 2000, for treatment of pain in his hip joint. Subsequently, the plaintiff received treatment from his general practitioner, from physiotherapists, massage therapists, and a reflexologist, as well as from Ms Cheetham. Various medications have been prescribed for pain relief and depression including Paracetamol, Panadeine Forte, Celebrex, Norflex, Zoloft, Avanza, Tarmal and Somac, and from time to time hydrotherapy has been used.
18 The plaintiff next saw Ms Cheetham after the accident on 27 May 1999, at which time she noticed that now it was the left side of his pelvis which was lower than the right, and that the area which required attention had moved from his thoracic spine to the lumbar/sacrociliac region. Thereafter she continued to treat him with manipulative therapy on a regular basis until May 2000, at which time she judged that he was not making any further progress.
19 Her treatment of him resumed in October 2000, at the request of the massage therapist who the plaintiff had also been seeing on a regular basis. It continued until October 2001, by which time she was of the view that while such improvement as could occur had occurred, weekly or fortnightly treatment for the rest of the plaintiff's life would maintain his mobility. She did not expect any change in his daily level of pain.
20 Apart from these chiropractic treatments, the physiotherapy and various forms of massage and related treatments which have been provided, the plaintiff has been the subject of regular review by medical practitioners, in the course of which his underlying condition has been investigated through plain x-rays, CT Scans and Magnetic Resonance Imaging.
21 It is convenient to make reference to two such investigations, since they are of relevance to the emergence of the plaintiff's back symptoms.
22 On 2 November 1999, CT scans were performed on the plaintiff's lumbar spine from L3 to the sacrum. They were reported as showing:
" At the L3/4 level the disc outline is normal. The apophyseal joints are normal.
At the L4/5 level there is an appearance strongly suggestive of an extreme lateral left sided disc protrusion. This is best appreciated on scans 2.005 and 3.013. The apophyseal joints are within normal limits.
At the L5/S1 level there is a posterior disc bulge. The apophyseal joints demonstrate degenerative changes on the left side."
23 This is a significantly different finding from the x-rays taken immediately after the fall. Whether that can be explained as the product of a process that had only begun to develop in the fall and was not immediately observable, or whether better definition was achieved by CT scanning, was not addressed. However, no other injury or intervening event was shown to have occurred, and in the light of the plaintiff's complaints of continuing serious back pain from the time of the fall, I am persuaded that its origin lies in that event.
24 On 31 October 2001, further radiology was reported as showing:
" LUMBOSACRAL SPINE XRAY
There is slight narrowing of the L5/S1 disc space. There is no evidence of spondylolisthesis or spondylolysis. There are four lumbar type vertebral bodies, the lower most has been labelled L5.
MRI-LUMBOSACRAL SPINE
There is desiccation of the L5/S1 disc. There is broadbased bulging of this disc. Peripheral increased signal in the disc is suggestive of an annular tear.
The intervertebral foramina are widely patent. The nerve roots and ganglia are not compressed or effaced and there is not evidence of marked spinal canal stenosis.
CONCLUSION
Broadbased bulging of a degenerate L5/S1 disc as described with a small annular tear noted. Slight indentation of the thecal sac at this level. No evidence of nerve root or ganglion effacement as described."
25 These studies confirm the earlier findings and are of relevance for the most recent expert opinion concerning the plaintiff's condition and prognosis. To the expert evidence I next turn.
26 The plaintiff's physical condition has been reviewed by Drs Evans, Searle and Russo, and by Associate Professor Champion; Reviews were also undertaken by several doctors at the request of the defendant, and of those practitioners, reports were tendered from Dr Parameswaran and from Associate Professor Jones.
27 In his report of 2 November 1999, Dr Evans noted that the pre-fall x-rays had revealed some mild abnormalities in the lumbar-sacral spine, but said that these would not have caused pain. It was his assessment that the fracture of the pelvis would have damaged the articular cartilage, and that there was evidence of stiffening of passive movement of the hip joint. He expected that it was likely that osteoarthritis would develop in the joint, and thought it uncertain that the plaintiff would ever be free of hip pain and stiffness.
28 In a separate report of 3 November 1999, he noted that the CT scan taken on the previous day was "strongly suggestive of an extreme lateral left sided disc protrusion" at the L4/L5 level, and also showed a posterior disc bulge at L5/S1, with degeneration of the left facet joint at the same level. The plaintiff's lower back pain he said "most likely arises from the damage to one or both of the L4/5 or L5/S1 discs."
29 Dr Evans later reported that a CT scan taken in June 2000, and a MRI scan in August of that year, did not take the matter any further in that they did not reveal, at that stage, the onset of osteoarthritis in the hip joint.
30 Dr Searle, who examined the plaintiff on a number of subsequent occasions, between 9 October 2000 and 11 November 2001, reviewed the radiology. With the benefit of that information and of his own findings, he reported, on 15 October 2000:
" The fall on 20/5/99 caused a fracture of the pelvis involving the left hip, a contusion of the ischium, lumbar ligament strains and at least one lumbar intervertebral disc lesion, possibly two.
The ongoing symptoms from these injuries are permanent and cause a moderately severe degree of disability. Because of this he is permanently unfit for his pre-injury occupation, and is also unfit for any form of work which requires prolonged sitting or prolonged standing, lifting or repeated bending, going up or down steps or stairs, carrying weights, having average agility, or regularly travelling moderate distances.
With regard to prognosis the symptoms and disability in the lumbar spine will gradually increase with the passage of time because degenerative changes are inevitable at the injured levels and will progress steadily. The left hip joint problems will probably not change for a long time but as the fracture line involved the joint surface it is possible that he will develop arthritic changes in that hip later in life."
31 If the plaintiff's back symptoms became sufficiently severe, then Dr Searle though he may require a decompressive laminectomy.
32 When Dr Searle saw him on 26 September 2001, he reported that the plaintiff's ongoing symptoms form his back, pelvis and hip injuries where "much worse" than when he had seen him a year previously. He said that his prognosis was also "worse". He thought that he was "unfit for all forms of work and require(d) more definite treatment".
33 On 11 November 2001, he reported that the most recent MRI film of the hip (taken 31 October 2001) showed "some narrowing of the weight-bearing area of the joint space superiorly confirming early arthritic change"; while the MRI film on the lumbar and sacral spine showed "narrowing and darkening (desiccation/degeneration) of the L5/S1 disc with a broad based protrusion of the disc and a tear of the annulus." Those films he said confirmed his earlier opinion, and he recommended that the plaintiff attend a pain management clinic.
34 Associate Professor Champion, who saw the plaintiff on 26 April 2001, reported that he thought that there was "quite a reasonable probability that he will ultimately require replacement arthroplasty because of post injury osteoarthritis" (of the left hip). Although noting that the plaintiff might have had a slight vulnerability in the lumbar spine before the fall, he stated that he had not displayed any such vulnerability in relation to his hip.
35 The important consequence of the hip injury he described as "damage to the articular surface of the left acetabulum with apparent early loss of cartilage and sub articular bone reaction"; while the consequences of the lumbar sacral spinal injury he thought was "activation of symptomatic osteoarthritis at the left L5-S1 apophyseal joint, and probably a contribution to internal disc disruption at L5-S1 and to the apparent left lateral disc protrusion at L4-5".
36 As to the prognosis and treatment possibilities he reported:
" In regard to treatment, it is probable that Mr Pryor would benefit from apophyseal joint injection of local anaesthetic and corticosteroid on the left at L5-S1. The discogenic components to low back pain are unfortunately difficult to relieve and these are best dealt with by usual pain management/rehabilitation processes including some regular analgesia. It is the left hip which is of more concern in the longer term, and this is not really amenable to any treatment apart from attention to posture, range of movement exercises, avoidance of undue biomechanical stresses, and the possibility of some long term benefit form nonsteroidal anti inflammatory drugs, glucosamine and chondroitin, and physiotherapy.
In regard to the prognosis in the longer term, he will probably experience life long pain in his low back with periods of relative quiescence, but easy provocation of more intense pain. At the left hip, more probably than not there will be gradually progressive osteoarthritis accompanied by further painful restriction of function and my expectation is that sometime within ten or twelve years he will be a serious candidate for replacement arthroplasty. The rate of such progression is extremely difficult to forecast. As the disorder at the left hip progresses, he will very likely come to a point of needing walking aids such as a cane, and more analgesia and therapy."
37 Dr Russo, from the Hunter Pain Clinic, saw the plaintiff on 14 December 2001. In relation to his back a diagnosis was made of "lumbar discogenic pain secondary to traumatic degenerative disc disease" for which he said no cure currently exists. He thought it likely that the plaintiff would have life long symptoms, and that his condition would deteriorate with age. He also thought it likely that the plaintiff would come to early hip replacement. Provocative discography, which he arranged, confirmed that the L5/S1 disc was the plaintiff's pain generator, and as a consequence, Dr Russo reported that he could be considered for intradiscal electrothermoplasty (IDET), which has provided pain relief for a significant number of patients.
38 Dr McMurdo who reviewed the plaintiff, on 5 April 2001, reported that he "satisfied the requirements for the diagnosis of adjustment disorder with depression periodically", which he considered was attributable to the injuries sustained in the May 1999 fall. He did not consider that he needed formal psychiatric treatment, observing that "the most important management (for him) is to improve his agility, reduce pain, and enable him to engage in rewarding recreational pursuits." He said that there was "a possibility that he will become more significantly depressed in the future if his physical health deteriorates."
39 Dr Parameswaran, who saw the plaintiff in May 2001, confirmed the hip injury, which he agreed appeared to be "leading to secondary osteoarthritis at present." He did not think that chiropractic treatment or massage therapy was going to help him, and he agreed that at some stage he may require a total hip replacement. He did not express any opinion in relation to the plaintiff's back beyond noting the radiologist's findings of 2 November 1999, presumably because, it would seem, he found no restriction in movement or disability other than slight pain at the extreme of movements. This is a somewhat surprising observation in the light of the radiology, and the findings of the other medical experts. Somewhat unhelpfully, he expressed no view in relation to the plaintiff's ability to work. Otherwise, his only observation of relevance, for the assessment of damages, was his suggestion that the plaintiff "may require domestic assistance for two hours once a fortnight" - to mow his lawn and to do any heavy household chores.
40 Associate Professor Jones who also saw the plaintiff in May 2001, accepted that his symptoms of pain in his lower back, left hip and groin were "related to attitudinal changes particularly in the left hip and to a lesser extent in the low back which (have) a nexus to" the fall. The reduction of his work hours to the 29 hours per week, which he was working at that time, he thought to be an "appropriate prescription". He thought that "heavy household maintenance would be precluded"; that "lawn mowing would most appropriately be performed for him"; that he should not climb ladders; and that heavy household cleaning, which could consume about 3 hours per month, "may best be performed for him". He similarly did not think that "hands on treatment" would cure him, and he recognised that were there likely to be further attritional changes in his left hip, then surgery may be required.
41 Neither of these specialists had the benefit of any later review, nor did they see the later radiology and tests which were available to Dr Searle and Dr Russo, who alone of the medical witnesses had seen the plaintiff after the reported deterioration which took him out of his work with Magnet Mart in August 2001.
42 As a consequence, their reports are of less value for current purposes than those of Doctors Searle and Russo. The defendant did not seek to contradict Dr McMurdo, and I see no reason to doubt his opinion.
43 The plaintiff appears to have provided a consistent account of his pre and post accident history both in his evidence to this Court, and when examined by the various medical witnesses whose reports I have noted. In summary he said that: