Stewart v Tsueneaki [2012] ACTSC 141

1. The defendant in his defence admitted breach of duty of care but asserted contributory negligence. Counsel for the defendant cross-examined the plaintiff at some length about the circumstances of the collision but did not call the defendant, or indeed any evidence on liability, and ultimately did not address on liability.
2. I am satisfied that the defendant's negligence in disobeying the give-way sign and driving into the path of the plaintiff's vehicle was the sole cause of the collision, and that no contributory negligence by the plaintiff has been established.

1. The plaintiff was born in 1971. He was 35 at the date of the accident and is now 41. He has two teenage daughters by an earlier marriage and has been living in a domestic relationship with his present partner for about five years. He met her shortly after the accident.
2. He joined the army after he left school, following in his father's footsteps, and became an officer cadet at the Australian Defence Force Academy in Canberra. After graduation he attained the rank of lieutenant, resigning in 1996 at age 25 to become an information technology consultant. He has remained in that industry and has continued to work with computers since then. By the time of trial he was director of information management for the ACT and region with a publicly listed consulting company.
3. In his spare time he has completed part of a diploma course in homoeopathy and has some hope that he may one day practise in that field as a sideline.

1. The plaintiff's evidence in chief was that he struck his head at some point during or immediately after the collision with the defendant's car. He was not immediately conscious of any other injury, but said that pain set in progressively as the initial shock wore off over about two hours following the incident. He was initially stiff and sore over the whole of his body, with the particularly painful areas being his neck and lower back. For the next two weeks he had constant pain in the neck, accompanied by headache, and in his lower back.
2. By the time of trial his major disability was low back pain. His neck and the accompanying headaches had improved immediately after the accident, but he had noticed that his neck had become worse over the year leading up to the hearing, with more frequent episodes of neck pain.
3. There is a significant issue in the case as to the plaintiff's condition prior to the motor vehicle collision. He gave evidence that early in 1991, in the course of an army training exercise, he was running across a field carrying a rifle, in military uniform including a webbing pack. Part of the exercise included sprinting, then diving to the ground and firing his rifle. He dived into a hole or ditch, not realising it was there, and hyper-extended his back. His back was painful within moments. He was able to complete the exercise with his squad but required medical and hospital attention soon afterwards. He was put on light duties for a couple of weeks but returned to full duties, including similar if not more strenuous training exercises.
4. This back injury is verified by army records in evidence, although with some confusion about the triggering incident. A medical attendance report dated 30 January 1991 records a complaint of lower back pain with a history of a back injury 'over Christmas while lifting a car'. This was put to the plaintiff during cross-examination. He had little recollection of it, but he was being asked to recall events of twenty years earlier and I suspect that he may have conflated two separate incidents in his memory. The recorded symptoms included a dull ache across the lower back, with sharp pain upon bending.
5. There is a record that an x-ray taken on 1 March 1991 revealed no bone or disc lesion. The report of the x-ray is not in evidence as a primary document, but Dr Pascall purports to set it out verbatim in her first report. She quotes it as follows:

Minor tilt to the right at L4-5 level. Disc spaces appear well-preserved and no evidence of congenital or acquired abnormality. Facet and sacroiliac joints appear normal.

1. Dr Searle, who saw the plaintiff at the request of his solicitors, seems to have had access to the x-ray report. A summary of it is also quoted by Dr Patrick, another of the plaintiff's medico-legal witnesses, from a report by Dr Brooder, neurologist, although Dr Brooder's report was not tendered by either side. The other medical witnesses do not seem to have been provided with a copy of this x-ray report. This is unfortunate, having regard to a difference of opinion between Dr Pascall and Dr Searle about the significance of the tilt finding.
2. On 7 March 1991 the plaintiff underwent an MRI scan of the lumbar spine, the report of which was as follows:

There is slight image degradation due to minor patient movement.

The discs are of normal signal intensity. There is no evidence of disc rupture of herniation.

There is minimal posterial disc bulging at the L5-S1 level, but without encroachment on the theca or neural structures.

There is no evidence of canal stenosis. The conus medullaris is normal in outline and position. No other abnormality is seen.

1. The MRI films could no longer be located by the time of the hearing, which was also regrettable having regard to a disagreement between some of the doctors as to the significance of the findings and the relative reliability of MRI techniques in 1991 and 2008.
2. The plaintiff was referred through army channels to Dr McNicol, orthopaedic surgeon, in August 1991. Dr McNicol recorded that the plaintiff had had low back pain for eight months, which had been exacerbated after a 3 km run in boots. The plaintiff complained of constant pain, worse after various activities, but eased by rest, and not helped by physiotherapy. There was some leg pain, worse on the left than the right, with paraesthesia in the sole of the left foot. Dr McNicol concluded that the plaintiff had a disrupted lumbo-sacral disc, accompanied by an irritative sciatica. He was doubtful whether the plaintiff should continue in the military.
3. On the basis of this opinion the plaintiff did not proceed as previously planned to the Royal Military College for completion of his officer training. He continued his army career in a non-operational role, becoming involved with computers. He continued to complain from time to time to army doctors of low back pain but it is clear that he was also able to engage in sporting activities such as touch football, during which he suffered some other unrelated and presently irrelevant injuries.
4. The plaintiff left the army in 1996. By then it had become clear that there was no prospect of his return to operational duties. A further factor was that his superior had ordered him not to play further representative touch football following an injury. Over the next few years he worked for a number of companies in the information technology industry, generally doing contract consulting work with Commonwealth agencies.
5. From about 1992 he began to see a naturopath in Canberra, Mr Dudley, for occasional ailments including low back pain and sciatica in the left leg, for which he received treatment in the form of homoeopathy and other "alternative medicine" remedies.
6. After he left the army the plaintiff continued to play touch football. His evidence was that he also played golf and volleyball. He participated in camping and bushwalking. He played regular indoor cricket at competitive level.
7. The plaintiff gave evidence that he had been involved in reasonably heavy work establishing a lawn and garden for his first house in 1994. He and his wife had bought the house from a builder with no garden, and had needed to bring in about thirty tonnes of topsoil. With his father's help the plaintiff had built retaining walls, installed stone and concrete paths and steps, and erected sheds, spending most of his weekends and holidays landscaping the block and establishing the garden. His recollection was that this took about seven months.
8. In 2004 the plaintiff's marriage broke up. He moved to a townhouse which required the establishment of a garden, although on a much smaller block. He spent about eighteen months landscaping that block. This included putting in paths, raising levels, establishing vegetable and other gardens, paving and installing a water tank.
9. After the motor accident, the plaintiff said that there was some improvement in his condition after the acute period of the first two weeks or so. The constant severe pain in his neck and the headaches subsided. His back pain settled over a period of about three months but then, contrary to his expectations, no longer improved but remained at about the same level until the hearing. He said that he still had trouble with his neck about once a week, mostly on waking in the mornings. On such a day the pain would generally progress increasingly, radiating through the back of his neck into his head and causing headaches. He said that over the twelve months leading up to the hearing these had as often as not developed into migraine headaches, something he had only ever experienced once or twice in his life before the motor accident.
10. The plaintiff said that his back pain makes him irritable and reduces his concentration. He finds himself wanting to cut tasks short and get away from work. He needs to take painkillers to control the pain but these impair his ability to think quickly and decisively and his level of awareness. He said that the pain gets worse as the day goes on, to the extent where he needs prescription medication such Mersyndol Forte when the plain is particularly severe, and at night to help him sleep.
11. By the time of the trial he was continuing to suffer from headaches associated with his neck pain.
12. On days when the pain was not so bad he still took analgesics such as Panadol, and also homoeopathic medicine.
13. He said that over the year before the hearing his neck had become slightly worse, whilst his back had remained at the same level.
14. He generally started work between 7.30 am and 8.00 am, working until 4.30 pm or 5.00 pm but sometimes the pressure of work was such that he had to keep working until as late as 9.00 pm. Sometimes he was able to take work home but more often he was working on a consulting basis at the office of a client and was unable to work away from the client's premises.
15. He was conscious of a general loss of flexibility and fitness which he attributed to his inability to keep up with his pre-accident physical activity and sport.
16. The plaintiff said that he could no longer cope with the volume of work he had previously done around his house and garden. Before the car accident he had been living on his own for about three years and completing the landscaping of his house. He said that after he moved in with his present partner the load had been shared between them. His partner did much of the ironing and helped with the gardening. She did practically all of the washing up, the dog walking and all of the vacuuming. These were things he had done before the car accident. He did not do them any longer because they caused him back pain. He estimated that his partner was spending four to six hours a week doing things he would have done if it had not been for the accident. His partner is a full-time public servant.
17. The plaintiff was extensively cross-examined. He agreed that he rode a motorcycle to work, usually three days a week, a distance of some 20 km each way, wearing a helmet and occasionally a backpack.
18. The plaintiff agreed that he continued to play indoor cricket, batting, bowling and wicket-keeping, usually for an hour and forty minutes on Tuesday evenings. He played golf occasionally, and engaged in kayaking whenever he had the opportunity. He had attempted mountain-bike riding over rough terrain for about an hour and a half. He had bought a pedal kayak about six months before the hearing, which he used about once a fortnight at Tuross Head on the south coast of New South Wales.
19. He had played some golf after the car accident. He joined Capital Golf Club at Narrabundah for twelve months. He had a lesson from a golf professional who modified his swing, making golf less painful for him. He continued to spend time in his garden at home for periods of two to three hours. He mowed the lawn when necessary and was able to plant and replant shrubs, using a pick and shovel. He maintained a vegetable garden at his home. Sometimes he took the family's dogs (two golden retrievers) for a walk, although usually this was his wife's province. He agreed that he could walk, jog and run for short periods, and that he could ride his kayak and motorcycle. Nevertheless he maintained that he was restricted from some activities around the house. He said this was related to the volume of activity.
20. During 2009 he and his partner engaged a cleaner to help with the housework.
21. He and his partner had a holiday house at Tuross Head. They had someone come into mow the lawn at the holiday house. He was asked what work he had done there. He said that they had pulled out an old swimming pool with the help of a friend, and built a new deck. He had participated, carrying timber, digging holes, concreting posts in and generally building the deck. This had taken place about six months before the hearing.
22. The plaintiff agreed that he had helped a friend to move house four or five months before the hearing. This was the same friend who had helped with the work at the beach house. The plaintiff had helped with lifting and moving furniture, and loading a truck which he had driven to the south coast where he had helped to unload it. The load had included beds, chairs, tables, a refrigerator and a washing machine. He had helped his friend to dig up part of the front yard looking for a broken sewage pipe, and had also helped with painting.
23. The plaintiff was shown, in the course of the cross-examination, film taken on two occasions during the year prior to the hearing, one on a day when he rode his motorcycle to work and another on a day when he helped a friend to move furniture. I have the benefit of seeing the film, as, ultimately, did the specialist doctors.
24. In re-examination the plaintiff said that he needed to prepare himself for indoor cricket sessions. He did a considerable amount more stretching prior to playing than he had done before the car accident, and he took painkillers in advance. He also used what was described as an anodyne machine before playing. He generally arrived ten or fifteen minutes early to warm up and go through extended stretching. Since the car accident he bowled at a slower pace and ran more slowly. Sometimes he avoided wicket-keeping and would field in less demanding positions. He generally found that after a game of indoor cricket he would be in some pain immediately, and more so the following day.
25. Similarly with his golf, he needed to take painkillers. He restricted himself initially to nine holes but built up to playing eighteen holes. At the end of a year he found that he was not playing golf often enough to make it worth keeping up his membership, which he discontinued in about September 2009. After a round of golf he was usually in significant pain and tended to go home, take more painkillers, apply heat to his back and rest.
26. By way of explanation about the furniture-moving scene on film, the plaintiff said that there had been a group including three adult males. They had had the use of a trolley to move the heavier items.
27. He said that the work at Tuross Head removing the old swimming pool and decking had not been particularly heavy work but at the end of each day he had had to take painkillers.
28. He and his partner had discontinued the domestic cleaning arrangement. He said that this had been because the cleaner had told them that she would no longer be providing invoices and would not be charging GST. This was unsatisfactory to the plaintiff and his partner, and they had not pursued further cleaning help since. The cleaning had finished only about a month before the hearing began. The plaintiff said that he had asked for a quote from another cleaning agency but had not yet had a response.
29. In April 2009 he had obtained a quote for gardening and mowing work but decided not to pursue this. His partner was philosophically opposed to having help in and around the house. They had replaced some of their lawn with a pebbled surface and the plaintiff felt that he could manage the garden maintenance himself without help.
30. He said that before the car accident he had enjoyed gardening and outside work very much, spending as much as nine hours working outside on a Saturday. Since the accident he could cope with working for only two or three hours.
31. The impression I gained from the plaintiff was that his solicitor had suggested that he might be entitled to recoup the cost of domestic assistance and that he should keep records of this. He had kept records after his solicitor recommended it but had ceased to do so when a hearing date for his action was fixed. The hearing was unable to proceed on the date originally fixed and a fresh date was fixed a few months later. The plaintiff said that he might have other records at home but agreed that he had not been a particularly good record-keeper in that regard. Although the hearing proceeded for several more days, the plaintiff did not produce any further records after this piece of evidence. He conceded having obtained a quote for help with lawnmowing and gardening, which he thought might have been at his solicitor's suggestion: he did not take that aspect any further.

1. The plaintiff's case was supported by evidence by his partner and his father. It emerged during his partner's evidence that she and the plaintiff had travelled to South America in April-May 2008. She said that their travel had been restricted in terms of time and intensity by the plaintiff's condition. The plaintiff's partner gave the impression that she did most of the work around the house, with some help from the plaintiff. They both worked reasonably long hours in responsible positions. She would not have agreed to engaging a cleaner if it had not been for the plaintiff's injuries, because she was not happy about the idea of a cleaner having a key to her house. The plaintiff was able to look after the outside areas, including mowing.
2. She recalled the work done at Tuross Head. She said that most of the work had been done by a friend who had taken a month's leave and stayed at the beach house. She agreed that the plaintiff had helped with the work.
3. She also recalled the day when they had moved furniture from the friend's house in Canberra to a storage facility, as seen on film.
4. The plaintiff's father had lived in Canberra until 2001 when he moved to Sydney. He saw the plaintiff reasonably frequently, subject to that constraint. He had seen no evidence of any limitations in the plaintiff's capacity for physical activity before the car accident, but noticed a significant change afterwards. The plaintiff complained of back pain after the accident, particularly after physical activity.
5. Supporting evidence was also given by the plaintiff's ex-wife. She and the plaintiff were married in 1994. They separated in 2003 and were divorced in 2006. They maintained a reasonably good relationship thereafter in the interests of their daughters. Her evidence went mainly to the plaintiff's physical capacity between his army injury in 1991 and the car accident. Her recollection was that that although the plaintiff occasionally complained of a sore back and took Panadol, this happened only three or four times a year and did not interfere with his activities. These included touch football, attending the gym and playing in a band, which required a considerable amount of lifting and moving of musical equipment. She confirmed that he had worked hard to landscape the block around their first house with some help from his father. By 1994 he was working three jobs, his full-time job in the army, a tutoring job at university and a third spare-time job installing computer software. He worked late five nights a week. He played golf with his father quite often at weekends, playing eighteen holes.
6. After a brief separation they moved to another house in 2000 with a large established garden which the plaintiff looked after without assistance, including lawnmowing, pruning, weeding and planting. Until her separation from the plaintiff in 2003 he maintained his level of sporting, recreational and other activities.

1. On 22 February 2007, twelve days after the car accident, the plaintiff saw a general practitioner, Dr Al-Naser. Dr Al-Naser did not give oral evidence but a copy of his clinical note of the consultation was tendered. The note was in the following terms:
   1. mva on 10.2.07, driver, seatbelt on, avoided another car in front at high speed, jumped on median strip and hit trees, walked out of the car, did not need medical attention.

Old back injury army sixteen years ago prolapsed disc L4-5 and L5-S1. On exam . . . stiffness lower back no tenderness. C/O sore back then but did not see a doctor also mild headaches six days.

1. anxiety/stress . . . longstanding, needed counselling last year and no medications . . . aggravated since the accident, will see the counsellor again from last year not keen on tab at all.
2. It does not appear that the plaintiff saw Dr Al-Naser again about the accident.
3. The plaintiff's regular general practitioner was Dr Andrew Morris of Kingston. Dr Morris's notes were in evidence. He saw the plaintiff a few times, irregularly, between 2000 and the car accident. There is nothing in the notes to suggest that the plaintiff required any significant treatment or any time off work by reason of low back problems referable to the 1991 accident during that time.
4. The plaintiff appears to have seen Dr Morris only three times after the car accident. In July 2008 the plaintiff saw Dr Morris and told him that he had been involved in the car accident. Dr Morris note reads "still having lower back and cervical pains since. Old L/S injury from when was in Army in 1991".
5. Dr Morris referred the plaintiff for MRI scans of the cervical and lumbar spine. The reports from the radiologist, Dr Bramley, were as follows:

The spinal cord appears normal. No alteration of signal is seen to suggest pathology. The spinal canal is well patent. No disc bulge or protrusion is seen. No compromise of the exiting nerve routes is identified. The neural exit foramina are well patent. There is a small perineural cyst associated with the right C7 nerve root. These are generally not symptomatic.

The conus appears normal. The spinal canal is well patent. There is slight loss of disc height at L4-5 with associated desiccation and an annular tear as well as a central flat protrusion. This impresses on the thecal sac but without neural compromise. No further disc bulge or protrusion is seen. No compromise of the exiting nerve roots is identified. There may be mild facet joint degenerative changes at L4-5 and L5-S1. These are better visualised on CT. The bones otherwise appear normal.

No injury seen within the cervical spine. Small perineural cyst on the right at C6-7. Disc protrusion and annular tear of L4-5. No neural compromise seen. Mild facet joint degenerative change at L4-5 and L5-S1.

1. The plaintiff saw Dr Morris in July 2009 with an upper respiratory tract infection. There is no mention in the entry for that consultation of anything related to the car accident. Dr Morris saw him again in March 2010 for a flare-up of severe lower back pain and prescribed Mersyndol Forte and Digesic. The plaintiff saw Dr Morris again in May 2010 for further prescriptions of painkillers.
2. The plaintiff's evidence was that he was able to obtain repeat prescriptions from Dr Morris for medication without the necessity for a formal consultation, and that he did so from time to time.
3. The plaintiff also gave evidence, which I accept, that he has always avoided as far as possible seeing doctors and taking medication. This is consistent with his faith in alternative medicine including homoeopathy.
4. The plaintiff has had no specialist treatment, but he has been seen by a number of specialists pursuant to arrangements made by his own solicitors and by the defendant's solicitors. These included a psychiatrist on each side, but their reports were not tendered and the plaintiff did not at trial pursue his claim for psychological or psychiatric sequelae of the motor vehicle collision.
5. Dr Peter Conrad is a general surgeon of some thirty years' experience, including considerable experience in orthopaedic surgery, practising in Sydney. He examined the plaintiff for the purposes of the report to his solicitors in May 2008. The history he obtained from the plaintiff was that "his back had more or less settled down" after the 1991 injury and prior to the car accident. He had been able to play indoor cricket, touch football and golf and undertake heavy gardening without problems.
6. The plaintiff told him that after the car accident he could not afford to take time off and worked on as best he could at reduced capacity as an IT consultant. He said that at the time of the appointment he continued to have headaches and pain and stiffness in the neck with substantially increased back pain radiating to the left leg. He described his pain level as 3 to 4 before the car accident and about 6 after it. The pain had substantially restricted his sporting activities.
7. On examination Dr Conrad found moderate limitation of movement of the cervical spine in all directions because of pain, and moderate paravertebral muscle spasm. Straight leg arising was limited to 60° for the right leg and 45° for the left, but there were no neurological signs in either leg. There was full movement of both shoulders and there was no neurological sign in either arm.
8. Dr Conrad's opinion was that the plaintiff had sustained some degree of head injury, a whiplash injury to the neck and substantial aggravation to a pre-existing back injury. He continued to have headaches, pain in the neck and back pain with left sciatica. Treatment should be conservative, and physiotherapy as needed would be of benefit. Dr Conrad thought that the plaintiff was well motivated, and that his computer work might need to be curtailed commensurate with his symptoms. He should avoid heavy repetitive lifting or bending. He might need six to eight hours per week home care assistance with the heavier side of house and garden maintenance if his partner was not available to help. The back pain and sciatica should be attributed 50% to the 1991 injury and 50% to the 2007 injury. The prognosis was uncertain. By reason of the car accident the plaintiff was likely to be forced to retire something like five years earlier than the normal retiring age of 65. There was no evidence that the 1991 injury would have resulted in early retirement if it had not been for the car accident.
9. Dr Conrad was later provided with copies of the file of Dr Morris, the general practitioner, which confirmed his opinion in relation to the 1991 injury. He thought it more likely than not that the disc injury identified in the 2008 MRI scans had not been present prior to the car accident and had been caused by it.
10. Dr Conrad in oral evidence expressed the opinion that the plaintiff would suffer a gradual deterioration of his low back symptoms, perhaps with flare-ups from time to time, and perhaps with severe recurrences. Dr Conrad adhered to his opinion despite vigorous cross-examination. He had been shown the surveillance film but was not asked any questions about this in the course of cross-examination.
11. Dr Alan Searle is a Sydney orthopaedic surgeon of more than forty years experience (and incidentally the author of Orthopaedics for Lawyers, LawBook Co 2002). Dr Searle saw the plaintiff by arrangement with his solicitors on two occasions, in May 2009 and March 2010. The history obtained at his first appointment was generally consistent with that taken by Dr Conrad. The plaintiff told him that his neck pain was not present all the time but was aggravated by unguarded movement or on sleeping with his neck in the wrong position, and led to headaches. The low back pain was likewise not constant but was aggravated by prolonged sitting and by bending or lifting. The left sciatica extended to numbness and paraesthesia, sometimes in the whole of the left leg down to the sole of the foot.
12. The plaintiff told Dr Searle that after he left the army the back symptoms which followed his 1991 injury gradually settled, and that he had been mostly free from pain before the car accident though with occasional flare-ups lasting a few days. He had given up mountain-bike riding and touch football but was continuing with weekly indoor cricket and golf once a fortnight.
13. On examination Dr Searle identified tenderness in the upper half of the cervical spine, and guarding of the rhomboids on the left side. There was tenderness in an area to the left of the lumbar-sacral junction which the plaintiff said was the site of his main back pain, and slight guarding on the left of the sacro-spinalis muscles. Lateral flexion to the left was restricted to three-quarters of normal. Sensation was diminished in the left calf and over the left little toe.
14. Dr Searle's opinion was that the car accident had caused aggravation of pre-existing but previously asymptomatic minor cervical spondylosis and disc lesions. The accident had also caused bulging of the L4-5 disc with a tear of the annulus, accompanied by musculo-ligamentous strain. The symptoms from those injuries were persistent and permanent, causing a moderately severe degree of disability. The plaintiff was permanently unfit for work or other activity which required sustaining a flexed posture of the neck, repetitive movements of the head or neck, prolonged sitting or standing, lifting or repeated bending, twisting movements of the trunk and regular long-distance travel. He would be able to continue his work as an IT consultant within those limitations. There should be no change in his condition for some time but his symptoms and disability could be expected to increase gradually later in life as degenerative changes supervened, and thereafter steadily progressed. Dr Searle thought that the plaintiff would probably have to retire some five years early, or alternatively work reduced hours later in life.
15. When Dr Searle saw the plaintiff on the second occasion he had aggravated his back about three days earlier and was taking anti-inflammatories and painkillers. His neck pain had been recurring about once a week, lasting twelve to twenty-four hours. The low back pain was consistently worse than twelve months earlier and the plaintiff's activity level was more restricted. His low back pain was constant and was aggravated by prolonged sitting or standing, coughing or sneezing, and by bending. The pain radiated down both legs, more so the left. The symptoms were interfering significantly with normal activities including housework and shopping.
16. On examination Dr Searle detected no guarding or tenderness in the neck, although there was some restriction of rotation to the right accompanied by pain. The low back was tender, with marked guarding on both sides and rigidity of back muscles. Rotation was half of normal as was lateral flexion to the left. All movements of the low back caused pain at the extremes. The plaintiff's posture and gait were guarded. He did not give any impression of exaggeration.
17. Dr Searle remained of the view that the plaintiff's symptoms were persistent and permanent. He noted that they were subject to significant exacerbation, often with minimal stimulus. He thought there was a definite possibility that the plaintiff had reached a position where his gradual deterioration had commenced, much earlier than Dr Searle had previously expected.
18. The plaintiff might benefit from physiotherapy which might need to be repeated three times per year. The need to reduce his working hours was becoming more apparent. Dr Searle did not think that he would be able to keep working in the same way for more than another ten years.
19. In his oral evidence Dr Searle explained that guarding involved contraction of the muscles in the area where a patient feels pain. This was a normal receptive mechanism in the spine, the muscles contracting to prevent movement of the painful area. This was sometimes visible but more commonly was palpable. On palpation the guarded muscles felt firm, enlarged and contracted, and as though in spasm. The condition was particularly obvious where it was on one side only, the other side being normal. The process of guarding was involuntary.
20. Dr Searle was asked about the finding of a minor tilt to the right at L4-5, reported on the x-ray of the plaintiff's lumbar spine in March 1991. He said that this finding was of no importance. It could happen for a number of reasons, including that the radiographer had not quite straightened the patient up at the time of taking the x-ray. It was quite common for people to stand with a very slight tilt to one side or the other. This would be purely postural and in the absence of any other abnormal finding would be ignored.
21. The MRI finding in March 1991 of a minimal postural disc bulge at L5-S1 was a very common finding in a thirty-year-old patient and was usually of no importance although it was possible that it might cause trouble later in life.
22. Dr Searle said that the tear of the L4-5 annulus found on MRI in 2008 was a very significant finding. Such tears were almost always traumatic, and in this instance were consistent with the plaintiff's description of the car accident. When accompanied by a finding of a narrowing of the disc space, and where the disc substance was dark on the film, this was important and was undoubtedly pathological and consistent with the car accident.
23. The plaintiff's history of working long hours between 1991 and 2007 as an IT consultant, playing sport and engaging in heavy gardening work was indicative of the fact that he had no pathology of any significance in the lumbar spine at that stage. If the appearances in the 2008 MRI had been present before the car accident, Dr Searle would not have expected the plaintiff even to attempt such activities.
24. Dr Searle had seen the surveillance film before giving evidence. The film made no real difference to his earlier opinion. He noted that symptoms of disability varied from time to time, and he also took account of the fact that the plaintiff was an unusual man who was prepared to continue with physical activities notwithstanding pain, where many other people would not. Dr Searle regarded this as ill-advised, and characterised some of the activities undertaken by the plaintiff, including those helping his friend at Tuross Head to dismantle the swimming pool, as sheer stupidity. Nevertheless, he said, what an individual is able to do is up to the individual, and many people in severe pain will continue with activity when medical advice would be not to do so. A number of the activities in which the plaintiff had engaged were not activities Dr Searle would expect a man with a painful back to be capable of doing, other than perhaps for a limited period. He accepted that a man capable of such activity would be unlikely to need domestic assistance.
25. Dr William Patrick is an experienced general surgeon with a sub-speciality in vascular and traumatic surgery. He examined that plaintiff in May 2009, on the same day as Dr Searle's first appointment with the plaintiff, also by arrangement with the plaintiff's solicitors. He took a similar history to Dr Conrad and Dr Searle. He detected muscle guarding paravertebrally at the cervical spine with limitation of all movements, stiffness of the thoraco-lumbar spine with some limitation of movement, and muscle guarding at the lumbar spine.
26. He formed the opinion that the plaintiff had sustained an injury to the right side of the head without significant injury to the brain and probably no loss of consciousness, accompanied by a neck strain injury with probable cervical facet joint injury and possibly minor disc injuries at C4-5 and /or C5-6 without significant disc herniation.
27. Dr Patrick thought that the plaintiff had sustained a significant lumbar injury, with injury to the facet joints and either causation or aggravation of significant disc bulging or protrusion with an annular tear at the L4-5 level. He noted the 1991 history of a disc bulge at L5-S1. He found a left leg radiculopathy arising at the lumbar spine. He thought the plaintiff's symptoms were genuine and consistent with the history of the car accident. His prognosis was for continuing residual symptoms. He thought it reasonable to apportion the continuing lumbar spinal problems one third to the army injury and two thirds to the car accident. The possibility of future surgery to the lumbar spine could not be entirely ruled out. The plaintiff in his view should avoid heavy physical work including lifting and carrying, bending and stooping, and working in awkward situations. He should not be on his feet for long periods of time without breaks for sitting and resting, and should avoid twisting movements of the spine under load as well as jolting or jarring. He was fit for suitable lighter work not involving such activities. He was in Dr Patrick's view genuine and well-motivated.
28. Dr Patrick thought that he was likely to require up to five working days off each year, for example during periods of exacerbation of symptoms. His working life was probably shortened by about five years, with retirement at age sixty rather than sixty-five. If he were to lose his job his continuing disabilities would have some adverse impact on his employability and capacity to find other employment.
29. Dr Patrick was shown the surveillance video material before giving evidence. This did not cause him to alter his opinion significantly. The footage of the plaintiff riding his motorcycle and then walking did not show him doing anything inconsistent with his presentation at Dr Patrick's rooms. The video of the plaintiff helping to load and move furniture caused him a little more concern but on balance he came to the view that there was no inconsistency. The activities were generally within the capacity of a man with the back condition and symptoms the plaintiff complained of.
30. He thought the finding of the perineural cyst at C7 was probably no more than an incidental finding and probably unrelated to the car accident, although there may have been a connection. Such cysts were common and were usually seen as developmental rather than post-traumatic. They usually did not cause any symptoms.
31. Dr Patrick looked at the 2008 MRI films. He said that they appeared to show minimal left posterial bulging of the discs at C4-5 and C5-6. The bulging was probably not in his view clinically significant. As to the finding at L4-5, he thought that the combination of the annular tear and the loss of disc height was of clinical significance. All of the changes might be found in a man of the plaintiff's age in the absence of trauma but the changes could be post-traumatic and could well have come on over the eighteen month period between the car accident and the MRI procedure. There was a possibility that they were pre-existing but the likelihood was that the damage had been caused by the car accident. If the damage had been in existence prior to that, it was unlikely that the plaintiff would have been able to play touch football, engage in mountain biking over rough terrain, and move large quantities of soil.
32. Counsel for the defendant put to Dr Patrick in cross-examination a description of the activity undertaken at Tuross Head. Dr Patrick thought that the plaintiff was unwise to engage in such activity, which would subject him to the risk of further injury. It was not activity that a man with a painful back would be advised to engage in.
33. Dr Patrick expected that when the plaintiff was in his mid-fifties there would be some worsening of symptoms, perhaps requiring regular use of anti-inflammatory medication to relieve the pain, with the symptoms gradually increasing over time and fluctuating in severity, interspersed with, he hoped, periods which were relatively symptom-free. The plaintiff might come to surgery but Dr Patrick was optimistic that this would not eventuate. The deterioration would be likely to affect the plaintiff's ability to participate in physical activities including sport and work.
34. The solicitors for the defendant sent the plaintiff to three specialists for examination and report: Dr Keith Lethlean, a Sydney neurologist; Dr Virginia Pascall, a Sydney occupational physician; and Dr James Bodel, a Sydney orthopaedic surgeon. Reports of all three were tendered. Dr Lethlean and Dr Pascall gave oral evidence.
35. Dr Lethlean saw the plaintiff in June 2009. He took a history consistent with that given by the plaintiff to the doctors he had seen for his own solicitors. He was provided with a volume of medical material including some reports not in evidence. He found that the plaintiff had a reduced range of cervical and lumbo-sacral movements. He thought that the 1991 MRI scan of the lumbo-sacral area showed no definite abnormality, whereas that of 2008 showed significant disc changes at L4-5. He thought that the degenerative changes seen in the MRI scan of 2008 were at least in part of longer standing (presumably predating the car accident). In his opinion the greater part of the plaintiff's disabilities were related to the car accident, and restricted him from particularly strenuous activities, whilst permitting him to continue with golf and indoor cricket. Dr Lethlean was asked by the defendant's solicitors whether his assessment differed from any of the medical material he had been sent and if so to what extent and why, and why his opinion was preferable. His response was that there was no substantial difference between his report and the reports he had been sent, particularly those of Dr Conrad and Dr Brooder (regrettably Dr Brooder's report is not in evidence). He did not think that the plaintiff was likely to have to retire earlier than age sixty-five, and disagreed with Dr Conrad on that aspect.
36. Dr Pascall stands somewhat apart in her opinion from the balance of the medical evidence. She saw the plaintiff in July 2009 and reported to the defendant's solicitors at great length (22 pages). She disagreed with the plaintiff's doctors on a number of issues.
37. Dr Pascall took a detailed history, and conducted a physical examination of the plaintiff. She detected no muscle guarding or spasm either in the cervical spine or in the lumbar spine area. The only radicular sign she recorded was of partial sensory loss in the L4 dermatone, which she said was minor.
38. Her diagnosis was that the plaintiff had suffered a whiplash injury of the cervico-thoracic spine which had resolved. He continued to complain of some pain on cervical movements, which she attributed to the demands of his work rather than to the motor accident.
39. She ascribed his lower back symptoms to the natural progression of degenerative changes in the lumbar spine. She took the view that the 1991 x-ray had revealed a slight problem at the L4-5 level, although the 1991 MRI scan did not show any more than a bulge at L5-S1 which she said was within a normal population variant. She said that she could not remember the details of MRI scan proficiency in the early 1990s but could conclude that they were not as discerning of injury then as by 2008. She said that it was possible that there had been an annular tear at L4-5 in 1991, not detected by the MRI, which had caused that disc to degenerate disproportionately over time. It was the L4-5 disc which was causing the plaintiff chronic back pain. The car accident had aggravated the condition, and there was no evidence that the aggravation had resolved or would resolve.
40. She went on to say that the plaintiff's lower back pain had some relationship to the car accident, but that the car accident was not the sole cause of his continuing back pain. His left leg symptoms were associated with his lower back condition but were not in her opinion attributable to any extent to the car accident. Her opinion was supported by the lack of any history of complaint of leg symptoms during the weeks immediately following the car accident.
41. The plaintiff's neck symptoms, she said, were not directly or indirectly associated with the motor accident. His whiplash injury had resolved and his continuing neck symptoms were solely due to factors associated with his work.
42. She took the view that he should have engaged in, or perhaps should commence to engage in, physical exercise for the purpose of strengthening the core muscles of his back, which would also improve his posture. She said that if he continued to adopt the sitting posture he demonstrated to her he could expect to have continuing back pain.
43. Her opinion was that the Army injury in 1991 was almost certainly the cause of his degenerative L4-5 disc and hence the cause of all of his ensuing episodes of pain including his chronic pain situation at the time she saw him. She said that almost certainly the injury had been an annular tear at L4-5 and not an injury at L5-S1. She thought it likely that the technology in 1991 had not been capable of detecting an annular tear without disc protrusion. She said that the diagnosis given to the plaintiff at the time of an L5-S1 disc protrusion had been incorrect and that there had been no pathology at that level which had not been the cause of his problems thereafter. She thought that excessive loading on the lumbar spine muscles had continued to cause the plaintiff lower back pain over the years since 1991.
44. The lower back symptoms at the time she saw the plaintiff were indicative in her view of a clinically progressive condition such as degenerative disc disease. The car accident had contributed to some initial low level back pain, and she thought that there might be some small component of his symptoms caused by the car accident, but the overwhelming majority of his low back symptoms had been caused by degenerative disc disease with some core muscle inadequacy. Hence the car accident had not affected his employability.
45. She said that he did not require care or domestic assistance, and would not do so even if he were living alone. He would be able to adapt to his condition, for example by vacuum-cleaning over short periods rather than attempting to clean his entire house without a break. He could also be helped in that regard by the style of vacuum cleaner and the type of floor coverings. He was managing all that he needed in his garden by reducing the amount of lawn on his property. She thought that if the plaintiff had undertaken an appropriate core strengthening program for his lower back muscles he would have much better pain relief. She recommended that he undertake such a program, under the supervision of an exercise physiologist, a physiotherapist or a Pilates instructor.
46. Dr Pascall thought that the degenerative condition of the plaintiff's lumbar spine would gradually increase, and that his symptoms would gradually increase and become more persistent over time. Notwithstanding this, she saw no reason why the plaintiff could not work in a managerial position to normal retirement age.
47. She concluded that the car accident had caused some aggravation of the plaintiff's underlying degenerative spinal condition. However, she said that the aggravation was likely to improve to some extent, and as the accident did not cause any additional injury to the L4-5 disc, it had to be assumed that the plaintiff's present level of symptoms was not primarily due to the aggravation. There was nothing in the information available to her to indicate that the car accident caused anything more than muscular trauma.
48. By the time Dr Pascall gave oral evidence she had seen the DVD film of the plaintiff. She said that it did not affect her view as to diagnosis or capacity for work, but there had been some improvement so that her prognosis was a little more favourable. She was surprised at the level of the plaintiff's capacity to perform activities, and this increased her confidence in her view that his level of impairment was not substantial. She accepted that he experienced some pain from time to time but thought that this did not affect his life significantly. She had come to the view that the decision for his partner to do the vacuum cleaning at home was what she called a lifestyle decision by busy people who enjoyed their leisure time and was unrelated to his back problem. Dr Pascall disagreed that tilting in an x-ray report was generally a reference to a postural difficulty. She said that it referred to a spasm, in the plaintiff's case in respect of the 1991 x-ray, centred on L4-5.
49. Dr Bodel saw the plaintiff in August 2010, an appointment arranged by the solicitors for the defendant. He found on examination no guarding or spasm in the neck muscles but guarding on the left side at the lumbo-sacral junction. In his opinion the plaintiff had suffered a soft tissue injury to the cervical spine and the lower back in the car accident. The low back injury was a musculo-ligamentous strain and an aggravation of pre-existing degenerative change. He said that there might have been some additional structural damage to the discs at L4-5 and L5-S1 as a consequence of the 2007 injury. Dr Bodel thought that the plaintiff should be prescribed treatment in the form of exercise aimed at strengthening his neck and back and improving core stability. He ought to be able to function near-normally. He was likely to be able to work until normal retirement age. His work did not seem to be of a particularly physical nature and he seemed able to change position frequently as required throughout the working day.
50. After preparing his first report Dr Bodel was shown the surveillance video. He said that this showed the plaintiff undertaking various activities, all of which were consistent with his presentation at the earlier appointment. The film did not alter Dr Bodel's opinion.
51. Dr Conrad and Dr Searle were provided with copies of the reports of Dr Lethlean and Dr Pascall. Dr Conrad generally disagreed with Dr Pascall. He totally disagreed with her opinion that the plaintiff's work had caused his neck symptoms, and with her opinion that the car accident was not causative of the neck problems. He also strongly disagreed with her view that the car accident was not the sole cause of the plaintiff's low back pain. He totally disagreed with her theory that the low back problems were principally due to degenerative disc disease. He disagreed with both Dr Pascall and Dr Lethlean about whether the plaintiff was going to be able to keep working until age sixty-five. He adhered to his earlier view about this.
52. Dr Searle said that he was repeatedly surprised by the suggestion that a patient could suffer an aggravation of a pre-existing asymptomatic condition, with the effects of the aggravation persisting for a limited time and then, quite fortuitously, the symptoms of the underlying degenerative change appearing at exactly the time the effects of the aggravation were supposed to disappear and with exactly the symptoms and signs, and by sheer coincidence, at exactly the same level of severity. This, he said, was nonsense. On the contrary, it was very common for aggravation to cause symptoms which became permanent. He adhered to his original view and disagreed with Dr Pascall and Dr Lethlean where their opinion did not accord with his.

1. I found the plaintiff an impressive witness and generally accept his evidence, subject to minor matters about events of earlier years which I attribute to less than perfect recollection. I did not have the impression that he exaggerated the effect of the injuries he suffered in the car accident, or his present symptoms. He coped frankly and without any hint of evasion with cross-examination about his activities, including those captured on surveillance film, and he went into considerable detail about work he had carried out Tuross Head of which there was no evidence tendered on behalf of the defendant.
2. The view I formed of the plaintiff was that he is a man who does not allow his pain to prevent him from engaging in the normal activities of life, to the extent he can do so.
3. This picture of the plaintiff is generally consistent with the opinion formed by all of the doctors who have given evidence or whose reports have been tendered.
4. It follows that I accept the plaintiff's evidence about his present level of disabilities. I also accept his evidence that he avoids going to doctors as far as possible and takes medication only when he really needs to.
5. As to the medical evidence, all of the doctors whose opinions are in evidence are in broad agreement about the position with the exception of Dr Pascall.
6. I find on the balance of probabilities that the annular tear at L4-5 was a result of the car accident, and I reject the opinion that the tear was caused by the 1991 Army incident. The overwhelming medical opinion is consistent with such a finding.
7. I accept the opinion evidence that if it had not been for the car accident the plaintiff's working life would not have been shortened. He was in the years prior to the car accident able to engage in considerable strenuous physical activity including gardening and touch football. His efforts since the car accident to keep up his indoor cricket and golf are admirable, but I accept that some of the activities he has attempted have been foolhardy, including mountain-bike riding over rough terrain, moving heavy furniture and helping with the demolition and removal of an above-ground swimming pool. I accept the specialist opinion evidence that the plaintiff's symptoms and disabilities are likely to increase with age. I prefer that evidence to the opinion of the defendant's doctors to the contrary. However, I am not entirely persuaded that the plaintiff, although he might be justified in doing so, will in fact decide to retire early. He is by character a man of unusual strength of purpose, somewhat Spartan in his reaction to pain. Whether or not he retires early is likely to depend in large measure on his motivation to keep working despite increasing back pain and neck symptoms. I take account of the medical opinion evidence that he may be able to deal with increasing symptoms to some extent by reducing his working hours and perhaps days as he gets older.
8. I accept that the plaintiff suffered a neck injury in the motor accident and reject Dr Pascall's evidence that he has made a full recovery from this and that his present neck symptoms are solely work-related.
9. I accept the evidence that as time goes by the plaintiff will reach a position where he would benefit from physiotherapy. He has had none to date but if his symptoms are bad enough it seems likely to me that he will probably submit to physiotherapy in the hope of reducing his symptoms. He is more likely to continue with alternative medicine including homoeopathy. There is a possibility, fairly minimal, that he may ultimately come to surgery. There is no evidence as to precisely what procedure he might need or what it might cost.
10. I accept that his capacity to perform some household tasks, and gardening, has been impaired, although I respect the opinion of the doctors who find that a little hard to reconcile with some of the sporting and other activities which emerged during the trial. I am not satisfied that the cleaning expenses which the plaintiff and his partner incurred were entirely due to his accident-related disabilities but I accept that these made some contribution to the decision to incur that expense.
11. Having said that, I find this an unusual case where the pain and suffering endured by the plaintiff and the interference with his enjoyment of life have been considerably greater than might be assumed from the fact that he has continued throughout with his employment duties, has incurred modest treatment expenses, and has continued with sporting and other physical activities. The fact that he has done so is to his credit but should not be reflected in any reduction in the award for general damages for pain and suffering and loss of enjoyment of life.

1. Senior counsel for the plaintiff seeks an award of general damages in an amount of $125,000.00. Counsel for the defendant submitted that an appropriate range would be $30,000.00 to $70,000.00, but this was on the footing that I accepted Dr Pascall's evidence and generally accepted that the plaintiff was considerably less disabled than was claimed on his behalf.
2. I am satisfied that the plaintiff suffered a very serious low back injury, and a moderately serious neck injury, and that these have caused him very considerable pain over an extended period, greatly limiting his leisure activities and considerably reducing his enjoyment of life generally. I am satisfied that $120,000.00 is an appropriate award.
3. For interest purposes it is necessary for me to apportion this between past and future. It is five and a half years since the car accident. The plaintiff is now forty-one. His predicted working life, subject to the possibility of earlier retirement, will be for another twenty-four years, and his life expectancy is between forty and forty-five years. Additionally, I accept the evidence that his symptoms are likely to worsen with time. I apportion $40,000.00 to the past, and notionally apportion that amount at the same rate throughout the period since the accident. I allow $4,400.00 for interest on the past component of the award for general damages.
4. Past treatment expenses are agreed at $246.00. It is clear from the evidence that the plaintiff has spent considerably more than that but has not kept receipts or other records of the payments. In the circumstances the parties have come to this agreement. There is no claim for interest on that modest sum.
5. As against that, the plaintiff makes a substantial claim for the cost of future treatment. I accept that he will need over-the-counter medication and also, from time to time, prescription medication which will require the occasional visit to his general practitioner. He is also likely to continue with homoeopathic treatment from time to time. He may eventually have physiotherapy, and there is a very small chance that he may ultimately come to surgery.
6. To cover all of these future possibilities, which are clearly not capable of a precise mathematical approach, senior counsel for the plaintiff has submitted that I should allow a figure representing the present value of a loss of $20.00 per week. Counsel for the defendant did not specifically take issue with that approach if I were to accept generally the evidence in the plaintiff's case, as I do. The multiplier for a regular weekly loss in respect of a man aged forty-one for the rest of his life is 1145. Applying such a multiplier to a continuing loss of $20.00 per week gives a figure just on $23,000.00, which seems to me a reasonable allowance for future out-of-pocket expenses.
7. There is no claim for past loss of earnings, but there is a substantial claim for impairment of earning capacity. Senior counsel for the plaintiff has calculated this component of the claim by taking the plaintiff's present net weekly earnings ($1,958.00 at trial), assuming that the plaintiff will retire at age sixty and that but for the car accident he would have retired at age sixty-five, applying the appropriate multipliers and reducing the figure arrived at by 15% to take account of the vicissitudes of life. That approach leads to a figure of the order of $250,000.00. I am not satisfied that the evidence justifies an award as high as that. The plaintiff may soldier on to age sixty-five notwithstanding increasing back and neck pain. He may deal with the situation by reducing his working hours.
8. Of course, it is also possible that the plaintiff's employer by that time of his life may insist on his early retirement regardless of the plaintiff's wishes. If because of his increasing disabilities he is no longer performing to the satisfaction of the employer. I must take account of that possibility, in which regard I note also the opinion evidence that because of his injury the plaintiff will find it more difficult than if it had not been for the car accident to find employment in the future should he need to do so.
9. The plaintiff presently has the capacity, which he exercises, to earn about $2,000.00 a week after tax. The present value of his capacity to earn that income to age sixty-five is of the order of $1.7m. That is the present value of the plaintiff's earning capacity, and I must accept that he has suffered some impairment to it. The imponderables are such that it would be an artificial approach to attempt a mathematical calculation of the present value of the plaintiff's likely future loss. Nevertheless I am satisfied that his earning capacity has been reduced and that this is likely to be reflected in actual financial loss to him in the future.
10. Counsel for the defendant submitted that I should allow what he described as a buffer for future economic loss. "Buffer" is I think the wrong word but it does not seem to me that I can on the evidence do better than allow a broad rounded figure for loss of earning capacity. The figure I select is $150,000.00. This takes into account, as well as everything else, the vicissitudes of life.
11. It is common ground that I should allow 11% of the amount awarded for loss of earning capacity for the future, to compensate the plaintiff for the consequential loss of future superannuation benefits. I allow $16,500.00.
12. I am satisfied that the plaintiff's injuries have caused an impairment of his capacity to carry out domestic, gardening and related tasks. I am not satisfied that the need thus created is as great as claimed on the plaintiff's behalf. As I have said, I am not satisfied that the actual cost of engaging a house cleaner for twelve months was entirely due to the plaintiff's injuries, or that the cost of engaging the house cleaner should be treated in some way as a measure of the plaintiff's loss. I adopt a notional hourly rate of $22.00 as the commercial cost of providing the various services which would be needed to replace the tasks the plaintiff would be able to carry out if he had not been injured in the car accident.
13. Taking into account that it is more than five years since the accident, I am satisfied that the Griffiths v Kerkemeyer component for the past should be allowed at $2,000.00 to cover the need created by the defendant's negligence, noting that this has been filled in part by the plaintiff's partner and in part by the contract cleaner. Apportioning this amount over the period since the accident and applying the present notional commercial rate of interest (9% per annum) I allow $500.00 for interest.
14. I am satisfied that the plaintiff has a continuing entitlement to damages for this notional loss, and that his ability to undertake gardening and housework will probably reduce later in his life. As I mentioned previously, the multiplier for a man aged forty-one for life is 1145. I allow $20,000.00 for the future Griffiths v Kerkemeyer component.
15. I set out a summary of the components of the award for damages.

1. On consideration, that total seems to me to reflect adequately the impact of the negligence of the defendant upon the plaintiff. There will be judgment for the plaintiff for that amount. I shall hear the parties as to costs.

I certify that the preceding one hundred and thirty-eight (138) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Counsel for the plaintiff: Mr BMJ Toomey QC (22 November 2010), Mr KP Rewell SC & Mr RP Clynes

Date of hearing: 22-24 November, 14, 15 December 2010