Ismail Guneser v Pauline Joan Sherwood [1992] ACTSC 37 (28 April 1992)

SUPREME COURT OF THE ACT

ISMAIL GUNESER v. PAULINE JOAN SHERWOOD
No. SC 1476 of 1986
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Master A. Hogan(1)

CATCHWORDS

Damages - Personal Injury - Motor Vehicle Accident - Whiplash Injury - Aggravation of pre-existing Spondylolisthesis - No issue of Principle.

HEARING

CANBERRA
28:4:1992

ORDER

Judgment be entered for the plaintiff in the sum of $204.927.52.

DECISION

This is an action for damages for personal injuries received by the plaintiff in a motor vehicle accident on 27 June 1985.

2. The plaintiff was driving a sedan car in Allara Street Reid. He was wearing a seat belt. He was travelling at a relatively slow speed, estimated by him at between 40 to 60 kilometres an hour, and while he was still moving a car driven by the defendant collided with the rear of his vehicle.

3. His car jumped forward suddenly but did not collide with any other vehicle. He put his left hand blinker on and drove off the road and exchanged details as best he could with the driver of the other vehicle.

4. Liability was not admitted by the defendant, but it was not seriously in issue. The defendant was not called to give evidence, the plaintiff was not cross-examined about it. The inference is inescapable that the defendant failed to exercise due care, and there will therefore be judgment for the plaintiff.

5. The plaintiff was born in Turkey on 1 January 1947. He qualified as a Chemical Engineer in Turkey before coming to Australia with his wife and four children in 1983. He and they did not then speak any English and he obtained employment in Canberra as a Security Officer with the Turkish Embassy. He now has some English, but on an important occasion such as the hearing of his court case he gave his evidence through an interpreter.

6. After the accident he drove his wife and his mother to his home and then returned to work at the embassy. Although the accident had not been a violent one, gradually he noticed an increasing amount of pain in his lower back and also in his neck and shoulder areas. He continued on at work for about four to six weeks before consulting a chiropractor. The chiropractor gave him some treatment and suggested that he consult his doctor. He then went to see Dr Nancy Griffiths, who practiced in partnership with her son Dr Robert Griffiths at Red Hill.

7. He first saw her on 23 August 1985 and again on 26 August, when she referred him to Dr McGonigal.

8. Dr McGonigal saw him on 29 August 1985. In his report he stated that the plaintiff demonstrated a fair command of English in which he was assisted by his daughter who accompanied him. His complaints were of backache, headache, neckache and pain in the left illiac fossa, the left leg was numb with pins and needles over the whole of it, his shoulders ached and he had some earache in the left ear. According to Dr McGonigal the plaintiff had told him that he had had these symptoms before 27 June 1985, but that they had increased since the accident. The description of the accident given, according to Dr McGonigal, was that he had been the driver of a car struck from behind while stationary. Dr McGonigal examined him and inspected x-ray films that had been taken by the chiropractor on 21 August 1985. In his opinion Mr Guneser was suffering from long standing lumbar spondylolisthesis and possible cervical intervertebral disc degeneration. He saw little evidence that he had suffered physical injury of any degree in the accident reported. His advice was that the plaintiff should wear a lumbo sacral corset and take a bland analgesic as necessary, but that he should resume his usual work activities.

9. The plaintiff saw Dr Griffiths again on 4 and 6 September 1985. He had taken leave from work on 17 August, which expired about a month later. He did not feel well enough to return to work and during September the embassy terminated his employment. Towards the end of that month he moved to Sydney and consulted Dr Tsamoglou, who first saw him on 19 September. Dr Tsamoglou was able to converse with him in Turkish. Further x-rays were taken which showed spondylolisthesis of L5 on S1.

10. On 17 October 1985 he was seen by Dr Taylor, a surgeon in Sydney, I think at the request of his Sydney solicitor. On his inspection of the x-rays he noticed narrowing of the C6/7 disc space with minimal degenerative changes on the bodies of the adjacent vertebrae and a grade 1 spondylolisthesis in the lumbo sacral area.

11. Movements of his neck were restricted at the extremes but there was otherwise a fairly good range. There was tenderness over the lumbo-sacral junction. Dr Taylor's view was that the accident had aggravated and made painful his pre-existing condition of spondylolisthesis.

12. There was some evidence of nerve root pressure and also tenderness in the region of the thoraco-lumbar junction and he felt that there might well be degenerative changes in that area as well. The condition of his back was such that he was unfit for heavy work, but could do very light work which did not involve a lot of lifting or a lot of walking. He felt that the neck symptoms should subside within the next 12 to 18 months.

13. Dr Tsamoglou saw him again at the beginning of November 1985 when he was complaining of back and neck pain and sciatic nerve irritation and referred him for physiotherapy. The plaintiff underwent the physiotherapy for a short time, but when Dr Tsamoglou saw him on 27 December he said that it was not helping him much. Analgesics were prescribed and he was given appropriate advice. Dr Tsamoglou saw him again on 21 February 1986 and 18 March 1986. Because of the persisting sciatic nerve irritation he referred him for a CAT scan, which was performed by Dr Stern on 20 March 1986.

14. That procedure demonstrated disc bulging at L3/4 and L4/5 and also spondylolisthesis at L5/S1. He was referred to Dr Bannister, orthopaedic surgeon. Dr Bannister did not have access to the radiological findings, and it seems his advice was being sought about a possible journey by air to Europe. He diagnosed soft tissue injuries, and thought his condition was such that he certainly should not undertake a long journey by air. He advised more physiotherapy and traction, which the plaintiff underwent between 22 May and 29 May 1986. The traction in hospital gave him some relief while he was undergoing it, but Dr Bannister found him still complaining of pain in the neck and low back on 3 July 1986. He advised only that he should continue with the physiotherapy and medication.

15. His solicitor asked Dr Bannister for a review in February 1987. The plaintiff's neck movements were full but painful. His lumbar movements and straight leg raising were restricted. He diagnosed an aggravation of underlying spondylolisthesis together with soft tissue injuries. He assessed his capacity as restricted to light work only, and thought surgery would probably be needed in the future.

16. Dr Bannister had a discogram performed on 31 August 1987, and admitted the plaintiff to hospital for further traction between 6 and 16 August 1988. He reviewed him on 18 August 1988, and had arrived at the conclusion that operation on the lumbar spine was indicated, and would be the only means by which he would get complete relief. He thought the plaintiff would be permanently restricted to light duties.

17. On the day before, 17 August 1988, Dr Vanderfield examined him for the defendant, with the assistance of a Turkish interpreter. The history recorded by Dr Vanderfield was broadly consistent with the plaintiff's evidence. Dr Vanderfield's inspection of the x-rays confirmed pre-existing spondylolisthesis at L5/S1, and well established degenerative changes at C5/6 and C6/7.

18. Dr Vanderfield was impressed by the fact that the accident did not involve any really violent impact, the plaintiff went back to work, and was able to carry out his duties for at least six weeks. He did not even consult a chiropractor until about 8 weeks after the accident, according to the history he was given. That period is consistent with the date of the first x-rays taken, namely 20 August 1985.

19. In Dr Vanderfield's opinion his complaints were not related to the accident.

20. Dr Vanderfield saw the plaintiff again on 31 May 1989, 27 June 1990, and 5 March 1991. He reviewed the subsequent course of the plaintiff's condition, and the fusion operation that the plaintiff had on 29 June 1990. He adhered to his initial view that all the plaintiff's disabilities were developmental, and were to be expected in time in any event as a result of the long standing abnormality in the spine.

21. Dr Vanderfield gave evidence and was cross-examined, by telephone. He agreed that the mere fact that the plaintiff did not seek treatment for eight weeks after the accident did not necessarily indicate that the accident had not played some part in the production of symptoms, but he thought that it was on the cards that the spondylolisthesis would have produced symptoms sooner or later even if the accident had not happened.

22. Dr Bannister saw him again on 24 November 1988. There had been no significant change.

23. There was no improvement on examinations that he conducted on 11 February 1989, 1 June 1989 or 6 February 1990.

24. He recommended surgical intervention in he form of an L5/S1 fusion and laminectomy.

25. On 18 April 1990, at the request of his solicitor, the plaintiff was seen by Dr McGrath, rehabilitation specialist. Dr McGrath concluded that the cause of his problems was degenerative spondylolisthesis and disc bulge. On causation, he commented,
"Historically, the onset of symptoms are associated with

the motor vehicle accident. That being the case, I would
take the view that his symptoms were precipitated by the
motor vehicle accident, but not sufficient by itself to
cause his degree of discomfort."

26. He assessed him as fit only for a sedentary occupation, and his prognosis was for continuing pain disability of roughly the same magnitude as he was then suffering, with potential for either deterioration or improvement. Dr McGrath did not give oral evidence and was not cross examined.

27. A month later, on 15 May 1990, Dr Thomas, a Melbourne surgeon, examined him for the defendant. He was accompanied by his daughter, who acted as interpreter. He gave a history of feeling pain in the lower back from 3 hours after the accident, which pain gradually became worse over the succeeding days. He claimed never to have had back problems before. On examination Dr Thomas noted that demonstrated ranges of movement were restricted and accompanied by complaints of pain, but that at other times he moved his neck normally and moved his back through a better range while dressing and undressing.

28. Dr Thomas also was impressed with the minor nature of the impact in the accident, and the length of time before he saw a doctor, though he seemed to have the impression that that time was only three weeks not eight. He thought it unlikely that there was any physical injury on 27 June 1985, and if there was any it was confined to his lower back. He did not see any x-rays, but had been informed about the grade 1 spondylolisthesis at L5/S1. Dr Thomas also did not give evidence and was not cross examined.

29. On 26 June 1990 Dr Roderick McEwin examined him for the defendant, with the help of a Turkish interpreter. He was complaining of severe low back pain, but said that he had not then yet accepted Dr Bannister's advice that he should have an operation. He was also still complaining of neck pain and headaches. Dr McEwin was able to review x-rays, CT scans, and a discogram, taken between 1986 and 1990. He diagnosed a congenital defect of L5 which had resulted in a spondylolisthesis of about 1 cm of L5 on S1, musculo ligamentous strain of the cervical region, and soft tissue injury to both shoulders. He thought the injury to the shoulders had by then recovered.

30. The spondylolisthesis he thought had been present before the accident. The accident would have aggravated it. That aggravation would have continued for about one year. Since the end of that year Dr McEwin attributed any continuing incapacity in the lower back solely to the congenital defect.

31. The soft tissue injury to the neck, caused by the accident, would have caused symptoms for weeks, or perhaps a few months. Any continuing neckache he attributed to a minor degree of degenerative change which he observed at C5/6 in the x-rays. The headaches he described as tension headaches unrelated to the accident.

32. Dr McEwin agreed with the need for operative treatment of the spondylolisthesis, and confirmed his unfitness for any work other than light work.

33. Dr Bannister in fact performed the operation 2 days after that examination, on 28 June 1990. There was a fusion at L5/S1, with a major laminectomy at L5/S1 and a fenestrated laminectomy at L3/4 and L4/5, with no discs being removed at the two upper levels. Her wore a back brace for about 8 weeks after the operation. He still had discomfort in the back, with accompanying left sided sciatica. He was still complaining of neck pain and associated headaches.

34. On review by Dr Bannister on 24 October 1990, about the only thing that had changed was that he no longer had pain radiating down into the right leg, there was still some pain in the left leg, but that the pain in the back had improved to some extent.

35. Dr Bannister expected him to continue to improve, but expected that he would always be restricted to light duties.

36. Dr Thomas saw him again for the defendant on 12 December 1990, but to my mind his report does not really affect what Dr Bannister had reported. He detected some degree of functional overlay. My own impression, having observed him giving evidence and read the various reports, is that he may not consciously and deliberately exaggerate his symptoms and disabilities, but he may sometimes have dramatised them when being medically examined, and that he was inclined to paint a gloomier picture than perhaps was justified by the objective facts. However, the principal difficulty in this case is not the extent of his disabilities, it is the degree to which they are attributable to the accident.

37. Dr McEwin reviewed him again on 5 March 1991. He had difficulty in confirming proper fusion of the lumbo sacral joint. He also could not reconcile complaints of neck pain with the previous history, and concluded that any symptoms the plaintiff had in his neck were not related to the accident, otherwise his opinion remained as before.

38. Dr McEwin is a practitioner with some experience in medico legal matters. He did not give oral evidence, and his opinions were not challenged by cross-examination.

39. The defendant obtained another medico legal opinion from Dr Nield, who saw him with an interpreter on 12 August 1991. He thought the plaintiff was exaggerating his symptoms, and attributed all his disabilities to the congenital defect. The only restriction he would place on his capacity for work was a restriction on lifting more than 12 kilograms and sustained or repeated bending. He concluded,

"The prognosis in regard to his motor vehicle accident is
excellent, it will not compromise his future earning
ability or his enjoyment of life."

40. Dr Nield was cross examined and conceded at least the possibility that Dr McEwin's hypothesis could be correct. In December 1991 Dr Bannister saw him again, and gave his opinion as follows,

"This man still has the effects of his previous motor
vehicle accident. He suffers with headaches, neck pain and
low back pain, but with less sciatica."

41. In cross-examination he was asked to consider the possibility that he had been suffering symptoms in his lower back before the accident, as Dr McGonigal claims he was told. He adhered to his view that the accident still might well have exacerbated the condition.

42. I have come to the view that in all probability Dr McGonigal was mistaken in taking that part of the history. The plaintiff denies saying it, and his evidence is that he had not suffered symptoms before the accident. No other doctor notes a history of pain beforehand, and whereas Dr Vanderfield, for example, was assisted by a competent Turkish interpreter, Dr McGonigal was relying upon the plaintiff's limited ability in English, assisted by his daughter. In that context also I note that Dr McGonigal records a different description of the accident from that given by the plaintiff in evidence and to all the other doctors.

43. The records of the Doctors Griffiths, whom he had in fact consulted before the accident, are in evidence. Those doctors had been available to him for consultation for years beforehand. The only previous attendances recorded related to a fungal infection in September 1984 and removal of a mole in March 1985.

44. Dr Bannister, in cross-examination, described the mechanism that could have caused the injury. On the whole of the evidence I do not doubt that there was a congenital defect leading to a spondylolisthesis of L5 on S1. It was not symptomatic at the time of the accident. The plaintiff was wearing a seat belt. He was thrown forward, and the defect was at the junction of the fixed part of the pelvis and the mobile part of the spine. As Dr Bannister said,

"On being thrown forwards by the impact from behind, it
is unlikely that the spine would not be affected at that
pelvic junction."

45. I have found the resolution of this dispute particularly difficult because of the way in which the case was conducted on both sides. There is evidentiary material from 10 doctors. Only five of them were cross-examined. The other five do not agree on all issues, and the reports, examination in chief, and cross-examination were not always directed to the issues that seemed to me to arise.

46. Those issues seem to me to be the following:
First, did the plaintiff already have a condition of spondylolisthesis of L5 on S1 before the date of the accident?

47. I have already found that it is clear that he did. Secondly, was that condition of spondylolisthesis already symptomatic before the date of the accident? For the reasons set out above, I have decided that it was not.

48. Thirdly, did the accident cause that pre-existing condition to become symptomatic? Dr Griffiths had seen the plaintiff only briefly, and not at all since 1985. In his evidence in chief, he explained an ambiguity in his report by saying that he intended that the plaintiff had a degenerative back condition. He had a recent motor car accident and this had probably made if symptomatic. On the hypothesis that there were no symptoms before the accident, he thought it possible that a relatively minor trauma could have brought on the symptoms. He thought it unusual that, if that had happened, it would take weeks before the symptoms would be sufficiently painful to cause him to see a doctor. He would have expected an immediate complaint of back pain and sciatica.

49. Dr McGonigal started in chief from the hypothesis of the history as he had recorded it, and thought there was no connection between the accident and the onset of symptoms. The other hypothesis was not squarely put to him in cross-examination. In re-examination he said that it could be reasonable to say that a major incident is more likely to cause damage than a minor one. But he was not asked to, and did not, resile from his original view that the accident did not cause the onset of symptoms.

50. Dr Taylor's opinion, set out in his report dated 12 November 1985, was that,

"I feel as a result of his accident Mr Guneser has a
stiff and uncomfortable back and tenderness in the region
of his thoraco lumbar junction. He has aggravated and made
painful his condition of spondylolisthesis."

51. Dr Taylor was not cross-examined.

52. Dr Tsamoglou's report does not really address this issue. He was not asked to give evidence about it, nor was he cross-examined about his simple statement that as a result of the accident he injured his neck and back.

53. Dr Bannister's opinion I have already referred to.

54. Dr Vanderfield's opinion, expressed in his report, was that the complaints were unrelated to the accident. The most that he conceded in cross-examination was that the eight week's delay before treatment was sought did not indicate that the accident had not played some part in the production of symptoms.

55. Dr McGrath was of the view that the symptoms were precipitated by the accident, though it was not sufficient to explain his degree of discomfort. He was not cross examined.

56. Dr Thomas thought that it was unlikely that there was any physical injury in the accident, and if there was any it was confined to his lower back. The developmental condition could be aggravated by trauma, and, if it be accepted that the plaintiff first felt pain within hours of the accident and it gradually became worse, he would concede that it could have been aggravated by the accident. He personally doubted the claim because the collision was minor and the plaintiff waited so long before seeking treatment. He was not cross examined.

57. Dr McEwin reported that the accident would have aggravated the spondylolisthesis. His report was tendered by the defendant, and he was not cross-examined.

58. Dr Nield reported that the spinal fusion and the disabilities he observed in August 1991 were not related to the accident. In cross-examination he conceded the possibility that the accident caused the symptoms, but that in view of the length of time that elapsed before the plaintiff sought treatment the probability was that it did not.

59. I accept the plaintiff's evidence that he began to feel some discomfort in his lower back at least before he reported the incident on 2 July 1985, and that his description to Dr Thomas was probably accurate, namely that about 3 hours after the accident he began to feel some pain in his lower back, and over the succeeding days it gradually became worse. He went to see a chiropractor initially, and it was on the chiropractor's advice that he consulted Dr Griffiths. I accept as probable Dr Bannister's description of the mechanism by which the condition became symptomatic. I therefore conclude that it was the subject accident that made the pre-existing condition symptomatic.

60. Fourthly, would that pre-existing condition have become symptomatic in any event, and if so when? This question is related to the next, although it is not the same question, that is, fifthly, how long have the effects of the accident lasted?

61. Dr Griffiths agreed that it was possible that some other trauma of much the same kind as the subject accident could have made the plaintiff's condition symptomatic at some time. He also agreed that with the passage of time and with deterioration of the condition one could expect the presentation of symptoms. He also agreed that the condition appeared to be progressing, as evidenced by the late onset of right sciatica. I note, however, that in September 1985 the plaintiff was already complaining to Dr Tsamoglou of pain radiating down both legs. Dr Griffiths was not asked, and did not say, how long it would have taken for the symptoms to appear had there been no accident.

62. Dr McGonigal stated that the condition may be without symptoms for a lifetime, but it could become symptomatic. He was not asked to be more specific on this point.

63. Dr Taylor's report does not address the issue, nor do those of Dr Thomas, Dr McEwin, Dr McGrath or Dr Tsamoglou. Dr Bannister was cross-examined, but not about this matter.

64. Dr Vanderfield's view was that the symptoms that did appear were the result of the development of the disease, unaffected by the accident. Dr Nield held the same opinion. I have already stated why I do not accept that view.

65. Dr Vanderfield however, was also asked when the onset of symptoms of such a condition might occur naturally. He said that it often occurred in his experience between the ages of 30 and 40, and that the plaintiff's prospects were that it would happen to him sooner or later. Depending on the type of activity engaged in, he thought the existing pathology tended to imply sooner rather than later, and when asked to give a range estimated within the following 5 years. In that context I note that the plaintiff's description of his duties did not include any activities that were particularly strenuous or productive of risk to a fragile back.

66. In that state of the evidence I am forced to a conclusion which can be no more than an attempt at a broad common sense view, namely that it is possible that the plaintiff might have spent the rest of his life without symptoms, but it is unlikely. It is probable that at some time he would have had a problem with his lower back, either as the result of a relatively minor trauma such as this accident, or natural progression of the disease. It is impossible to pinpoint a date when that might have happened, but it could possibly have happened by now, and would probably have been within the not too distant future.

67. The accident having happened, and the condition having become symptomatic, for how long did the effects of the accident last?

68. This question was not addressed by Drs Griffiths, Taylor Tsamoglou, McGrath or Vanderfield.

69. Dr Thomas doubted that he had any significant problems of a physical nature, no matter how caused, by May 1990. Those findings are so inconsistent with the rest of the evidence that I do not accept them.

70. Dr McEwin in his report of 26 June 1990, stated simply,

"The accident would have aggravated the spondylolisthesis
and such aggravation would have continued for about one
year. Since the end of this time continuing incapacity
from his low lumbar spine has been due solely to the
congenital defect and a consequential spondylolisthesis of
L5/S2."

71. He gave no reason for arriving at that estimate of one year, and it was not explored by cross-examination.

72. Dr McGonigal was invited to comment on that opinion of Dr McEwin. He responded,

"It sounds reasonable, but I don't know that I would say
that myself", and
"I would not care to say that one year or one week was
the time for which that may be aggravated by such an
incident as is reported. If it were sufficiently
aggravated it may cause longstanding aggravation. On the
other hand, it may cause only brief aggravation."

73. Dr Nield was also asked to comment on Dr McEwin's one year estimate. He thought the length of time would depend upon the extent to which the trauma altered the underlying pathology. He thought, however, that the estimate of a year was reasonable.

74. Dr Bannister attributed the complaints of pain to the accident in February 1987. He continued to treat the plaintiff, and it was he who operated on the spine and observed its condition. In his reports of 11 July 1990 and 25 October 1990 he described the symptoms as being related to the injury. On 18 December 1991 he reported,

"This man still has the effects of his previous motor
vehicle accident."

75. He did not seem to be aware, during cross-examination, that there had been a pre-existing spondylolisthesis. Yet he had referred to the probability of its existence in his report of 19 February 1987, and in August 1988 and October 1990 he had written about the aggravation of the underlying spondylolisthesis.

76. He was not asked in chief to expand upon his obvious view that the symptoms continued to be the result of the accident, and in cross-examination the hypothesis that was put to him was that based upon what I now think was Dr McGonigal's mistaken history.

77. When asked, on that hypothesis, for how long the accident aggravated the pre-existing symptoms, he did not hazard an estimate of time. But he added,

"If the pain became constant after the accident, then I
would presume that the aggravation has continued to exist
right up until the time of surgery."

78. Since there is still some disability even after the surgery I assume that answer really implies that the aggravation still continues, mitigated by the surgery.

79. On the balance of probabilities that is the view that I have come to. It follows that the costs of treatment to date and of the operation are recoverable.

80. So far as the neck is concerned Dr Griffiths notes that on 23 August 1985 he was complaining of whiplash and headache. X-rays of the neck were ordered.

81. When he saw Dr McGonigal on 29 August he was complaining of headache and neck ache and an ache in the shoulders.

82. His complaint to Dr Taylor on 17 October 1985 was of an injury to his neck, his back and both his shoulders. Dr Taylor noted that the x-rays of his cervical spine showed narrowing of the C6/7 disc space with minimal degenerative changes. Dr Taylor noted a fairly good range of neck movement with restriction at the extremes, and tenderness on the upper border of the trapezius muscles.

83. Dr Taylor commented that the plaintiff was still getting some headaches from his stiff and uncomfortable neck. On 19 September 1985 Dr Tsamoglou noted tenderness over C5/6 and C7 and the neck movements were restricted somewhat because of muscle spasm and discomfort. On 15 October 1985 the plaintiff was still complaining of pain in the neck, headaches, and discomfort over both shoulders. On 1 November 1985 the complaints were of neck pain radiating down the shoulder joints. In February 1986 he was still complaining of neck pain and headaches, which were still continuing on 18 March 1986. Although the lower back was the main area of concern, Dr Tsamoglou noted in his report of 25 March 1986 that with persistent headaches, neck problems and the like he was prescribed quite a number of medications to control the vascular headaches as well as the neck and backaches.

84. When Dr Tsamoglou referred him to Dr Bannister it was noted that his thoracic and cervical spinal movements were all painful. He was complaining of severe headaches. He was still complaining of pain in the neck when seen again on 3 July 1986.

85. When Dr Bannister saw him again in February 1987 most of the pain was localised to the L5 level, and his range of cervical and shoulder movements were all full but painful. At his review on 18 August 1988 Dr Bannister noted a complaint of sharp pain across the neck, radiating from the neck up into the head and across both shoulders. He diagnosed soft tissue injuries. These complaints of pain in the neck and shoulders continued through into 1990. When Dr Bannister saw him again on 24 October 1990 for the purpose of supplying a report he noted a restricted range of cervical movements to about 50% of normal, associated with discomfort. That restriction was still present on examination on 18 December 1991. When Dr Bannister gave evidence he was not asked any questions about the neck.

86. Dr McGrath examined him on 18 April 1990, when he was mostly concerned with the low back pain. The doctor noted that when the pain was particularly bad it tended to radiate upwards between the shoulder blades and involved the neck. The plaintiff was also complaining of a slight pain at the base of his skull which tended to go away when lying down.

87. In his report of 15 May 1990 Dr Thomas thought that it was unlikely that there was any physical injury caused by the accident and if there was any it was confined to the lower back. He saw no evidence of any injury to the neck. He thought the complaints through the whole of the body were determined by psychological factors.

88. The plaintiff's complaints to Dr McEwin in June 1990 were that the neck pain, which he had since the accident, was not so bad. He indicated that it occurred in both nuchal muscles and that it travelled to each trapezius muscle. It also travelled to the back of the head. On Dr McEwin's examination his neck movement was almost full, but the last 10% or so of each movement was limited by pain. I think it follows that the plaintiff was overdramatising the restriction be purported to demonstrate to Dr Bannister in October 1990.

89. Dr McEwin's opinion was that the plaintiff had a soft tissue injury to the neck which would have caused symptoms for weeks or perhaps a few months. He thought that any continuing mild neck ache which he had might be due to the minor degree of degenerative change seen at C5/6 in the x-rays. Dr McEwin was not cross-examined.

90. As already stated Dr Nield thought that he had no disabilities resulting from the motor car accident in August 1991.

91. Dr Vanderfield also thought that such disabilities as he suffered were not related to the accident. He noted degenerative spondylosis with osteophytosis most marked at C5/6 on the CT scans of 17 August 1988. In his report of 15 March 1991 Dr Vanderfield commented that,

"The alleged complaints from the slight injuries to the
head and neck region and their progression despite
treatment rather suggests that as far as they have any
organic basis it is due to the natural advancement of the
well established degenerative changes already evidenced in
the cervical spine when the neck was x-rayed in August
1985."

92. That finding was not challenged when Dr Vanderfield was cross-examined. On reviewing the whole of that evidence the matters that appear significant to me are that there was radiological evidence of pathology in the spine of the neck, the plaintiff has given inconsistent versions of the symptoms that he was suffering in the neck region from time to time, and the unchallenged opinions of Drs McEwin and Vanderfield. So far as the plaintiff has continued to suffer headaches they might well have resulted from the lower back discomfort, which sometimes the plaintiff described as moving upwards.

93. I think it probable that the plaintiff sustained a typical but relatively mild whiplash injury in the neck region which subsisted for no more than about six months, or which had been overtaken within about six months by normal degenerative processes.

94. In summary, before this accident the plaintiff had a congenital defect of the spine in the lumbo sacral area, which by the time of the accident had led to a grade 1 spondylolisthesis of L5 on S1. He was not then suffering from any symptoms as a result of that pathology. It is likely that, at some time, perhaps in the past, but in any event in the not too distant future, that pathology would have become symptomatic to some greater or lesser extent.

95. The accident, relatively minor though it was, caused that pathology to become symptomatic, and also caused a mild whiplash injury to the neck.

96. The effects of the accident on his lower back continued, certainly in my mind till the date of his operation, probably until the present day, and will continue for some time into the future which it is not possible to specify, but which is not long. But at some time in the relatively near future it will probably be correct to attribute the plaintiff's condition to the underlying pathology, rather than to the effects of the accident.

97. Although the accident itself was minor, and the onset of symptoms gradual, he has suffered pretty constant pain and discomfort, and has undergone two periods of traction and a lumbar fusion in hospital.

98. For his pain and suffering I would award $30,000, of which I would attribute only $5,000 to the future.

99. Interest on the past component, averaged evenly over the period from the accident at a rate of 4%, amounts in round figures to $3,400.

100. The out of pocket expenses, on the hypothesis that I have adopted, are agreed at $31,527.52.

101. The plaintiff's evidence that his employment at the Embassy was terminated because of his condition was not challenged. His physical condition and his lack of facility in English have combined to make it most unlikely that he could have obtained any suitable employment, no matter how light the duties.

102. Although the plaintiff's evidence was that he received $600 a week, I understand that agreement has been reached that the proper figure is the one set out in the particulars, namely $443.00 nett per week.

103. The total of a weekly amount of $443 from the end of September 1985 to date is $157,800, in round figures. I think that figure must be substantially discounted for the real possibility that some other incident might have disabled him, just as easily as the subject accident. I would award $120,000 for past economic loss. It was not submitted to me that I should award interest on that component or on the out of pocket expenses, and there is no evidence that would enable me to make a proper calculation in any event.

104. For the future, both for loss of income and ongoing medical expenses, I think that no more than a relatively nominal sum of $20,000 could be justified.

105. The total award is therefore made up as follows:

Pain and Suffering $ 30,000.00
Interest $ 3,400.00
Out of pocket expenses $ 31,527.52
Past Loss of Income $120,000.00
Future Economic Loss $ 20,000.00
TOTAL $204,927.52