Paul Anthony Van Duren v David Mahl [1994] ACTSC 49 (26 May 1994)

SUPREME COURT OF THE ACT

PAUL ANTHONY VAN DUREN v. DAVID MAHL
No. SC3 of 1987
Number of pages - 10
Negligence - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER A HOGAN

CATCHWORDS

Negligence - Contributory Negligence - Travel in back of van - No seat belt - Possibility driver affected by alcohol - No causal connection with injury suffered - No issue of principle

Damages - Assessment - Aggravation of pre-existing lumbar pathology - No issue of principle

HEARING

CANBERRA, 9-11 May 1994
26:5:1994

Counsel for the Plaintiff: Mr R Mildren

Instructing Solicitors: Vandenberg Reid

Counsel for the Defendant: Mr L Morris QC and Mr M Cranitch

Instructing Solicitors: Abbott Tout Russell Kennedy

ORDER

The Court orders that<:

Judgment be entered for the Plaintiff for $26,108.00.

DECISION

MASTER A HOGAN This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident in the early hours of the morning of 23 August 1986.

2. The plaintiff is a single man, at present unemployed, born on 24 February 1965. He left school in mid 1982, not having completed Year 12.

3. After a number of years during which he travelled in Australia, doing relatively unskilled work, he obtained employment as a painter with Besselink Bros, a company of which his father was a director. He began work in June 1985, beginning under supervision, painting large areas such as walls and ceilings at the Defence Force Academy.

4. During 1986 he became aware of pain in his lower back, about which he consulted his general practitioner.

5. On the evening of 22 August 1986 he attended a party at premises in Hopetoun Circuit, Deakin, not far from where he was then living. He arrived at about 7.00pm, and, according to his recollection, had about eight schooners of beer over the course of the evening.

6. In the early hours of the morning he and a number of other persons at the party got into a van at the front of the premises. The front seat was fully occupied, and he and some others got into the back of the van, where he sat on a tool box which was on the floor of the van near the door. There were, of course, no seat belts available for the passengers in the rear of the van.

7. The evidence is not clear about who was driving the van. The plaintiff said he did not observe anything in particular about the driver. The van was driven across Commonwealth Avenue Bridge towards Civic. Shortly after it went around Vernon Circle it overturned, and came to rest on its side in the flower beds between London Circle and Vernon Circle. The plaintiff was thrown about as the vehicle overturned, and sustained a bump on the head. His own recollection is then hazy about what happened next, until he was in Royal Canberra Hospital.

8. However, police officers who attended the scene very soon after the accident found that the driver and other passengers had left. One officer saw the plaintiff running away and gave chase. The plaintiff ran about 50 metres towards the Court building, and dived through a hedge, where he was apprehended by another officer. He was taken back to the police car, where he denied having been the driver. He said he was not feeling well, and was allowed to lie down on the back seat of the police vehicle, until the ambulance arrived to take him to hospital.

9. After he had been observed there for several hours he was allowed to leave. He went to the police station, where he answered more questions, after which the police drove him home.

10. It is clear that whoever was driving the van failed to exercise reasonable care. There will therefore be judgment for the plaintiff.

11. The defendant has not persuaded me that the driver was visibly affected by alcohol before he began the journey, or that the plaintiff observed that he was, if it had been the fact.

12. However, it does not require the benefit of hindsight to realise that to get into a vehicle driven by someone who had been at that party until the early hours of the morning, was to take some risk.

13. It is also obvious that there is a risk of injury, or increased injury, in getting into the back of a van and sitting on a toolbox on the floor, unrestrained in any way if a collision or accident happens.

14. I am persuaded that the plaintiff failed to take reasonable care for his own safety to a significant extent.

15. The question that remains, however, is whether that want of care contributed in any way to the damage that he suffered. There is simply no evidence that the driver was in fact affected by alcohol, or that the accident happened because the driver was so affected.

16. The only significant injury of which the plaintiff complains is an exacerbation of his pre-existing lower back condition.

17. The other main issue in the case is whether in fact that condition was exacerbated to any significant degree by the accident, to which I shall return.

18. But it is a common experience that people with existing low back pathology who are involved in motor vehicle accidents often suffer an exacerbation of their condition even though they are restrained by a seat belt.

19. The plaintiff may well have been very lucky that his injuries were not more serious because of the position in which he travelled. But I am not satisfied that in this case there is any identifiable respect in which the injury that he suffered, such as it was, was either caused by or exacerbated by his doing so.

20. There will therefore be no reduction in his damages on account of contributory negligence.

21. In order to understand the effect of the accident upon him it is necessary to examine his condition before it in some detail.

22. In 1986 his general practitioners were Drs Armstrong and Richards in Yarralumla. On 23 June 1986 he consulted a locum at that practice. His evidence was that, at work, he became aware of pain in his back. It was too severe for him to continue working, and he went home. He had been carrying 20 litre tins of paint and rolling walls. The pain had been building up for some days.

23. The complaint noted by the doctor who saw him on 23 June was "Low back pain developed while gardening yesterday". On examination there was tenderness over the right lower sacral spinatus muscle, and straight leg raising was restricted to 75 degrees on the left and 85 degrees on the right. He was given a work certificate for one day "due to fibrositis of back".

24. In cross-examination the plaintiff could not recall any incident while gardening, nor could he remember whether he went back to work on 24 June. Since he had a work certificate for only one day, I think he probably did.

25. However on 25 June he saw Dr Richards, complaining that the pain in his back was getting worse. He had right paralumbar muscle spasm producing a scoliosis, and his straight leg raising was restricted to 45 degrees on the right and 60 degrees on the left. He had limited lumbar flexion and rotation, and was tender to palpation to the right of his lumbar spine from L2 to the sacroiliac joint. Dr Richards gave him a work certificate until 28 June 1986, "due to a medical condition".

26. He referred him for an X-ray, which revealed a narrowed lumbosacral disc space.

27. On 26 June Dr Richards discussed with him the results of the X-ray and referred him to Woden Valley Hospital for physiotherapy. On examination on that day there was less spasm, and improved flexion.

28. In a later report Dr Newcombe commented that the radiologist who reported on the X-ray taken on that occasion thought that the disc narrowing was developmental, but in the light of later investigations, Dr Newcombe thought that it had been caused by disc herniation.

29. Dr Corry in his report of 6 May 1991 reviewed the radiography, and appears to have come to the same conclusion as Dr Newcombe.

30. The plaintiff consulted Mr McDowall, Chiropractor. He returned to work. The pain in his lower back returned. On 7 August 1986 Mr McDowall advised him to rest and gave him a work certificate till 14 August.

31. The next day he returned to Dr Richards. The complaint recorded is that the back pain recurred three weeks before at work. Three visits to the Chiropractor in two weeks had not effected any improvement.

32. Straight leg raising was restricted, and there was tenderness and spasm in the muscles. Dr Richards prescribed Voltaren, gave him a work certificate to 18 August, and referred him to Ms O'Donovan for manipulative physiotherapy. His certificate stated that the plaintiff was suffering from back pain aggravated by work.

33. When he reviewed him on 18 August Dr Richards found he had less muscle spasm, but straight leg raising was restricted to 70 degrees on the right and 45 degrees on the left. There was also referred pain in the left shin, which he regarded as evidence of nerve root irritation, so he advised him to stay off work, gave him a certificate to 22 August, and referred him back to the physiotherapist.

34. On review on 22 August he found that the left shin pain had gone with physiotherapy treatment, and there was a full range of movement. He thought the plaintiff should be able to return to work on 27 August, and gave him a certificate that he remained unfit for work until that date "due to work related low back pain".

35. That evening the accident happened.

36. Despite the vigour with which he attempted to avoid embarrassing conversation with the police, he had received a bump on the head, and it is quite understandable that his back should have been hurting. He accepted the police offer to have an ambulance take him to hospital. The hospital records are not in evidence. He was kept for observation for some hours, and then left to answer more questions at the police station about who might have been driving the van. I assume the hospital notes have no information relevant to his back condition. The police gave him a lift home.

37. His last certificate covered him till 27 August. He did not, it seems, feel any need to see Dr Richards on the day after the accident. He did however see Ms O'Donovan, the physiotherapist, and told her about the accident. On 25 August she reported to Dr Richards that she had seen him on four occasions. She had been mobilising a very stiff L5, and the plaintiff had been doing extension exercises at home and had made good progress. He had told her about the car accident, however his movements were not affected. She had told him to contact her if he needed further treatment after he had returned to work.

38. He went back to work on 27 August. His back pain returned. He left work and went to see Dr Richards. Examination revealed a recurrence of lumbar muscle spasm, producing a scoliosis, so Dr Richards prescribed more Voltaren and suggested he continue with the physiotherapy. He noted a complaint of an injury to the right wrist in the accident. He certified that he remained unfit for work until 8 September 1986, "due to a medical condition".

39. On 9 September the plaintiff saw Dr Richards, and told him that he had been feeling well enough to return to work, but that pain had recurred the previous night. He noted paralumbar spasm causing a scoliosis, and referred the plaintiff for a CT scan. The work certificate was till 18 September 1986, due to "back pain - work related".

40. The CT scan demonstrated a small central disc herniation at L5/S1, though it was not deforming the theca.

41. He discussed the CT scan with the plaintiff on 17 September 1986, and gave him a certificate that he remained unfit for any work involving lifting or bending until 1 January 1987. The reason was said to be "L5/S1 disc herniation - work related". He also referred the plaintiff to Dr Newcombe for a neurosurgical opinion.

42. Dr Newcombe saw him on 25 September 1986. He told Dr Newcombe that his back condition had been further aggravated by the motor vehicle accident. A CT scan done on 16 September 1986 showed L5/S1 disc protrusion with compression of the theca centrally and towards the right side.

43. The plaintiff's evidence was that during this period his back pain was worse than it had been during the week before the accident.

44. Dr Newcombe saw him again on 18 November 1986. There had been some improvement, but it seemed that he could not return to work as a painter.

45. When Dr Richards reviewed him on 19 December 1986 he was still bothered by low back pain, worse after sitting or standing for long periods. There was tenderness, but no spasm in the back muscles. He certified him as "unfit for work involving lifting or bending until 1 March 1987 due to back pain aggravated by work in June 1986".

46. In February 1987 Dr Richards reported to his solicitors as follows,

"In my opinion Mr Van Duren has sustained a lumbosacral disc
prolapse which has responded to conservative treatment. I consider
that he is now fit for light duties which do not require lifting or
bending. I would caution him against doing manual labour in the
future as he is now predisposed to the development of further back
problems. However, I think he has little interest in doing manual
work again as his ambitions lie elsewhere."

47. On 3 April 1987 he continued to complain of low back pain to Dr Richards, and on 21 April 1987 to Dr Newcombe. He told them both that physiotherapy was not helping. Dr Richards gave him a certificate that he was "unfit for work involving bending or lifting until 1 June 1987 due to back pain following injury at work June 1986".

48. Dr Newcombe advised him that neurosurgery was not called for. The lumbar disc protrusion at L5/S1 was not causing nerve root compression resulting in sciatica. He suggested rehabilitation advice, as it seemed to him unlikely that he would return to work as a painter.

49. The insurer of his employer had been paying weekly compensation until January 1987, and his employer continued payments until 24 April 1987, but his employment was then terminated. He began to receive sickness benefits.

50. In June 1987 Dr Richards certified him unfit for work involving lifting or bending until 31 August.

51. In August Dr Richards noted that the pain was persisting. The plaintiff had tried acupuncture and herbal remedies, apparently without success.

52. At Dr Newcombe's suggestion he was referred to Dr Corry for rehabilitation advice. Dr Corry saw him on 6 October 1987. The plaintiff's persisting low back pain was limiting his tolerance for sitting, standing and walking, but sciatica symptoms in the right leg had resolved.

53. Dr Corry referred him to the Woden Valley Hospital for an active physiotherapy and exercise program. Dr Dunlop, who was supervising his program at Woden Valley, reported to Dr Corry that he made good progress. When Dr Corry re-examined him on 8 March 1988 he found that his tolerances for activity were considerably improved. He was to finish his exercise program in May. He reported to Dr Corry that he was happy with his recovery, and felt that he could find himself appropriate employment. Dr Dunlop reported to Dr Corry on 12 May 1988 that the plaintiff had been assessed by the vocational rehabilitation unit, but his attitude suggested to them that he had no vocational goals at that time. He concluded that the plaintiff's functional deficits were minor, and his problems with re-employment were more social and attitudinal, rather than physical.

54. On 29 April 1988 he saw Dr Richards. He had driven to Queensland and back to attend his father's funeral, and his back pain had worsened. Dr Richards noted some paralumbar spasm. He referred him for a CT scan. That disclosed mild disc bulges at L3/4, L4/5 and L5/S1, without deformation of fat planes or theca.

55. He discussed the results with him on 4 July 1988, when he noted a full range of movement, and no muscle spasm, but some tenderness over the lumbar spine.

56. The plaintiff began actively looking for work which would not strain his back, initially without success.

57. In May 1989 his pain was persisting. Dr Richards noted that he was depressed, and worried about his future.

58. Later in 1989 he found a job, screen printing, with a firm called "Eclipse Screen Printing". He found that he was required to work long hours, standing at a bench. There was no heavy lifting involved, but the long periods of standing affected his back.

59. In January 1990 he left that employment, and started a screen printing business with two other partners in Sydney. The business lasted over a year, but was not very remunerative for him, although he was prepared to work long hours.

60. On 11 March 1991 he saw Dr Richards, complaining that his back always felt tired, with a constant background of pain. He had developed a pain in the right calf after an incident of heavy lifting a few months before. He commented to the doctor that he was working as a screen printer in his own business in Sydney and was "surviving".

61. That was the last occasion on which Dr Richards examined him.

62. In his evidence Dr Richards summarised the course of his condition as follows,

"As you know, he developed low back pain in June 1986 which he says
originated while at work, aggravated by gardening, and then
subsequently was involved in a motor vehicle accident in August 1986
which exacerbated those symptoms and left him with persistent low
back pain, and my examination in March 1991, in my view, confirmed
that he still had some neurological signs as a consequence of those
injuries in low back pain."

63. When asked to comment on the causes of the condition, he said,

"I regard that the initial injury in 1986 was the genesis of his low
back problems, and that was exacerbated by the motor vehicle
accident. It seemed to be settling towards August 1986 and then
recurred and does not appear to have completely settled, certainly
until my last examination in 1991."

64. Dr Corry reviewed his condition on 30 April 1991, at the request of his solicitors. The plaintiff reported to him that he had minimal continuing problems. His tolerance to heavy lifting was limited, and his sitting tolerance on long drives was still moderately restricted. Dr Corry's examination revealed a full range of lumbar movement without neurological disturbance. There was no significant clinical abnormality, and Dr Corry described the radiological signs as minimal.

65. He concluded,

"The history is consistent with an episode of disc protrusion in the
lumbo-sacral disc following a period of heavy lifting and carrying
in his work as a painter as described. In his initial interview
with me he reported only minor temporary aggravation of symptoms
following the motor vehicle accident, but the report from Dr
Richards suggests that this may have been the precipitating factor
in him ceasing his employment at that time. Recovery was a little
prolonged, but by March 1988 it was clear that he had made
sufficient progress to return to light work, and he was fit for
full-time work at the completion of his programme with Woden Valley
Hospital in May 1988. He has permanent but minor restrictions in
his capacity, in that he is restricted in the lifting of heavy
weights greater than 20kg. This would restrict his capacity to do
unskilled labouring type duties."

66. I think Dr Corry was mistaken in reading into Dr Richards' report an implication that it was only after the motor vehicle accident that the plaintiff started to have time off work. It is clear from the detailed notes in Dr Richards' file that after the initial one day off work on 23 June and before the subject accident on 28 August, the plaintiff returned to work, suffered more back pain, and was given certificates covering absences from work for the periods 25 June to 28 June, 8 August to 18 August, 18 August to 22 August and 22 August to 27 August.

67. Dr Corry was not called to give oral evidence, but in the light of that chronology I regard as significant the plaintiff's initial statement to him, that the aggravation of the symptoms following the motor vehicle accident was only minor and temporary.

68. Dr Newcombe re-examined him at the request of his solicitors on 27 October 1993. He told Dr Newcombe that there had been gradual improvement, but his pain had not gone away entirely following the injury.

69. The screen printing partnership had been dissolved, and he had returned to Canberra where he had worked sporadically as a subcontractor, cutting paving bricks by machine and then mud bricks with a machete. His estimate to Dr Newcombe was that the motor vehicle accident had made his pre-existing pain half as much again as before.

70. Dr Newcombe's examination also disclosed no definite abnormality. He thought his condition was stable. In his opinion the injury at work in June 1986 initiated the lumbar disc protrusion and caused back pain. He thought it probable that there was advancement in disc prolapse after the motor vehicle accident, but the prolapse was present beforehand. His report concluded,

"On this basis the motor vehicle accident appears to have been
responsible for 30 to 40 percent of his ongoing problem and the
incident at work in June 1986 was the remainder."

71. The plaintiff was placed under surveillance, and there was tendered in evidence a videotape showing episodes of the plaintiff working at his father's home in Percy Crescent, Rivett, on 24 and 25 January 1994. He was observed lifting bulky articles from the rear of a vehicle, shovelling sand, using a wheelbarrow and cutting up reinforcing mesh. The work appeared to be strenuous, and involved constant bending, stooping and lifting. Although only relatively short periods of time were involved, he moved without any apparent restriction of movement or evidence of discomfort.

72. Dr Newcombe gave evidence and was cross-examined. I accept his view that it would be unwise for the plaintiff to resume work as a painter, and that that conclusion followed from his original work injury, but was reinforced by the motor vehicle accident. He conceded during cross-examination that whatever exacerbation had occurred in the motor vehicle accident had settled within the space of a week.

73. It is clear also from the cross-examination of Dr Richards about the work certificates that he issued, that he regarded the incident at work as being the major factor in causing the plaintiff's back pain, even after the motor vehicle accident.

74. He also said that disc herniations can resolve over time with conservative treatment.

75. There was no independent medical evidence tendered by the defendant.

76. It seems probable to me that the plaintiff suffered at work either a disc herniation or the aggravation of a pre-existing disc herniation. He may have further aggravated it while gardening. By the date of the accident his condition was such that he was probably not going to return to work as a painter in any event.

77. In the motor vehicle accident his back injury was further exacerbated. It is not possible to attribute mathematical exactitudes to the assessment of the exacerbation, but I think a factor of an additional 50 percent overstates it.

78. I do not think that the accident significantly increased the time that he took to recover from the condition to the extent that he did recover. Had the accident not happened I think it is probable that he would have suffered more pain when next he returned to work, and the course of his treatment would have been much the same as it was.

79. It follows that I am not persuaded that the motor vehicle accident caused any significant diminution in his income earning capacity, either in the past or for the future.

80. The extent to which it was diminished by the work related injury is for a different tribunal to determine.

81. I think also that the effect of the motor vehicle accident on his general well being was spent, probably by the time he returned to work as a screen printer, and certainly by the time of the work that he was recorded as carrying out on the videotape.

82. For the pain and suffering caused by the exacerbation of his condition that resulted from the accident I award $20,000.00.

83. Since that was concentrated largely in the initial part of the period, I award $6,000.00 interest on that sum. Payment of the ambulance fee of $108.00 certainly resulted from the accident. The plaintiff would have been to see Dr Richards following the accident in any event. Such further out of pocket expenses as have been paid appear to have been, in my view, the responsibility of the Workers' Compensation insurer, and should not be included in this award.

84. I direct the entry of judgment for the plaintiff for $26,108.00.