John Brenden Goff v Scott Spradau [1995] ACTSC 123 (10 November 1995)

SUPREME COURT OF THE ACT

JOHN BRENDEN GOFF v. SCOTT SPRADAU
No. SC 274 of 1994
Number of pages - 14
Damages

COURT

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

CATCHWORDS

Damages - Assessment - Motor car accident - Work accident - Pre-existing pathology - Apportionment - No issue of Principle.

HEARING

CANBERRA, 11 and 12 September 1995
10:11:1995

Counsel for the Plaintiff : Mr G. Stretton

Instructing Solicitors : Gilpin and Associates

Counsel for the Defendant : Mr P. Deakin QC with Mr M. Cranitch

Instructing Solicitors : Abbott Tout Russell Kennedy

ORDER

THE COURT ORDERS THAT:

1. The matter be adjourned for further hearing on a date to be
fixed.

DECISION

HOGAN J This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 1 March 1993.

2. Liability is not in issue. Resolution of the dispute is, however, made very difficult by complex medical questions arising out of incidents that happened both before and after the subject accident. The legal advisers to the parties have devised a method of compromising the action, but it requires the making of findings by me in order to be put fully into effect.

3. The plaintiff was born at Bellingen in New South Wales on 1 May 1935. He left school after attaining the Intermediate certificate, and completed an apprenticeship as a fitter and turner. He married in 1956, and has two adult children.

4. In July 1959 he joined the New South Wales Police force. In 1965 he was stationed at Goulburn as detective in charge of stock investigation. On 5 January 1965 he was involved in a head on collision whilst driving a police vehicle. He sustained injuries to his neck and back. He was absent from work for about 6 months. On 7 December 1966 he underwent a laminectomy at L3/4, and spent another 6 months absent from work. When he returned to work he was restricted to light duties. In 1968 he was informed that because of the injury to his lower back he would not be considered for promotion. He retired from the police force on 9 May 1968.

5. He took up a position as a stock salesman, at first at Goulburn and later at Coffs Harbour. In 1973 he opened his own stock and station and real estate agency in Coffs Harbour. He received some treatment for his back after jarring it on an uneven floor in 1971 but was not significantly restricted in his activities as a result of this episode. In May 1977 he underwent another operation to deal with disc protrusion at the L4/5 level. He was absent from work for about 4 weeks after that operation, but then returned to his normal activities. He took an active interest in horse racing, and was appointed as the honorary secretary of the Coffs Harbour Racing Club.

6. In 1980 he moved to Muswellbrook, where in addition to his business activities he took an active interest in local government, serving as a member of the Muswellbrook Shire Council and the Upper Hunter Area Health Board. At this time of his life he was able to play golf, lawn bowls and tennis and to enjoy swimming and dancing. In March 1987 he underwent manipulation for a minor injury to his right shoulder.

7. On 3 May 1987 he was driving a car on the New England Highway towards Newcastle, when a boulder dislodged from an embankment and collided with his car. He was wearing a seat belt but received soft tissue injury to his right shoulder, lower back and neck. Treatment for those injuries was conservative. He was able to resume his normal business activities. He later commenced proceedings in the District Court at Muswellbrook to recover damages for his injuries from the Roads and Traffic Authority, the Electricity Authority and a construction company. Those proceedings have not yet been finalised. In August 1992 his solicitors provided particulars of his claim to solicitors for a defendant. The particulars had the usual flavour of an ambit claim, but I note that he was paid workers compensation for a period of only one week and his medical expenses, paid by the insurer, were less than $1, 500.

8. He was however suffering from ischemic heart disease, and on 19 April 1988 he underwent triple bypass surgery at the Prince Henry Hospital.

9. In October 1989 he moved to Canberra, where he took up a position in the Territory Administration. He underwent a medical examination for superannuation purposes, and was issued with a benefit classification certificate with respect to his heart condition. In August 1991 he underwent further cardiac surgery, this time for a double bypass operation. He was able to resume duties after about 1 month.

10. In 1992 the plaintiff was appointed as Director of Racing for the ACT Government, an appointment at the ASO 6 level. He was able to play golf and some tennis and lawn bowls, and walked and swam regularly, to keep fit because of his heart condition.

11. On 4 May 1992 he slipped on the wet floor of a toilet at work and experienced pain in his lower back. The pain persisted, and radiated down the left leg. On 7 May 1993 he consulted Dr. Sivakumaran who made a diagnosis of lumbar disc lesion with muscular spasm. He received some physiotherapy. In October his back pain was exacerbated and Dr. Sivakumaran found marked tenderness over the L4/5 disc. He ordered a CT scan and an MRI scan. These confirmed a spinal canal stenosis with lumbar disc lesion. He referred the plaintiff to Dr. Chandran who advised conservative management. The plaintiff requested a second opinion, and he was referred for investigation by Dr. Pell at St. Vincent's Hospital in Sydney. Dr. Pell first saw him on 21 January 1993.

12. The plaintiff told Dr. Pell about the laminectomies in 1968 and 1975, which had given him good relief of pain. He described the May 1992 accident, and complained that since then he had continual back pain and sciatica on the outer aspect of his left thigh and down the left leg to the foot. On examination Dr. Pell found limitation of lumbar spine movements, particularly extension, which caused pain. All leg reflexes were absent. He made arrangements for the plaintiff to be admitted to Hospital for lumbar myelography on 17 March 1993, as a necessary investigation preliminary to the operation on the lower back.

13. Before he could be admitted, however, on 1 March 1993, he was involved in the accident which is the subject of these proceedings. He was on his way to work. He was driving a car which collided with another vehicle, which hit the passenger's side of his car. He was wearing a seat belt, but his seat came away from its mountings. His left hand was at the gear lever. He was thrown forward and his right knee struck the window winder. He immediately felt pain in his lower back, neck, shoulders and right knee.

14. He was able to drive away, and the accident was later reported to police at the police station. Later that day he went to see his general practitioner, Dr. Sivakumaran, who noted complaints of pain in the neck, back, left shoulder and both knees. He also complained of pain in the abdomen with aches all over the body. All his muscles were tender. There was limitation of all movements of the neck. Dr. Sivakumaran sent him home for rest with anti inflammatory medication. He saw him again at home for pain relief that evening. Over the next two weeks he continued to receive treatment from Dr. Sivakumaran, which included injections to relieve the pain.

15. When the plaintiff saw Dr. Pell on his admission to St. Vincent's Hospital on 17 March 1993 he told him about the accident, and that his back pain and left sciatica had worsened since the accident. He underwent two myelograms the next day. On 19 March 1993 Dr. Pell performed a laminectomy at L3/4. He found that the left L4 nerve root was compressed by spondylotic disease and the left L5 nerve root was caught in scar tissue from previous surgery.

16. Dr. Pell thought that the plaintiff was making reasonable recovery when he reviewed him on 12 May 1993. The plaintiff's evidence is that he felt worse after the operation. He noticed that he had difficulty in passing urine. He was referred to Dr. Mulcahy, urologist. He was also experiencing pain in his right knee and left shoulder. He was referred to Dr. Roberts, orthopaedic surgeon.

17. Dr. Roberts first saw him in May 1993. He injected the left shoulder with steroid and anaesthetic. There was swelling and pain in the knee. He diagnosed rotator cuff tendonitis and impingement in the left shoulder and chondromalacia of the right patella, which were both caused by the accident, in his opinion. He suggested physiotherapy, which the plaintiff underwent.

18. Dr. Mulcahy examined the plaintiff at about this time. He noted that in 1992 the plaintiff had been operated upon for removal of prostatic obstruction. He had also been catheterised after the back operation. He operated under general anaesthetic and inserted a catheter, which remained in place for about 3 weeks.

19. On 26 May 1993 Dr. Sivakumaran reported to Comcare as follows:

At present Mr Goff is making a slow recovery from his operation.
It is to (sic) early to give a definite prognosis of his
condition. His recovery is also complicated by a Motor Vehicle
Accident on the 1st March 1993. This had led to a painful right
knee and tender trochanterilbursa. He also has pain in his neck
with diminished movements. These symptoms are restraining Mr
Goff from having physiotherapy on a regular basis to recover
from his back surgery.

20. It is clear that he then regarded the back condition as being mainly due to the fall at work in May 1992, while the disabilities in the neck, knee and shoulder were directly attributable to the motor car accident. In July 1993 the neck pain became worse and he referred the plaintiff to Dr. Pell for advice about treatment.

21. Dr. Roberts reported that in June 1993 the left shoulder had improved somewhat but there was still pain at the knee. There were further complaints about the knee in August and the shoulder was painful again, and still weak. Dr. Roberts ordered a CT arthrogram of the shoulder, which revealed a loose body within the left shoulder joint, but no evidence of a tear in the rotator cuff. His diagnosis was of right knee chondromalacia and left shoulder rotation cuff tendonitis, attributable to the car accident. He was not sure of the prognosis, and thought that surgery was a possibility. He advised continuing physiotherapy. He expected that the condition of the knee and shoulder was such that the plaintiff could perform only light duties.

22. On examination on 8 July 1993 Dr. Pell found limitation of cervical spine movements in all directions, particularly lateral flexion to the right. He advised continuing physiotherapy. In his report dated 16 July 1993 he expressed his opinion as follows:

OPINION: Mr Goff had long standing back problems related to
previous injuries for which he was booked into St. Vincent's
Private Hospital for lumbar myelogram and decompressive surgery.
However, as a result of a motor vehicle accident on 1/3/93 the
pain had worsened although there was no further neurological
deficit.
I proceeded with myelography and decompressive surgery on his
lumbar spine and he has had marked improvement from this. The
cervical spine injuries however have worsened since the time of
the motor vehicle accident and he is continuing physiotherapy
for this. Certainly the back pain and sciatica were a direct
result of the fall on the wet tiles and the motor vehicle
accident was an aggravating factor.
He is still having persisting cervical spine pain and at this
stage it is unknown whether there would be any permanent injury
for this although I would expect it to settle down with
continued physiotherapy.
I feel Mr Goff would be able to continue his work with some
restrictions regarding the extent of any prolonged sitting such
as interstate travel, and of bending and lifting, which might
aggravate his back problem.
Certainly he has a 30% permanent impairment of his lumbar spine.

23. The plaintiff was able to return to work during July 1993, on limited hours. He was restricted to office work and was able to vary his hours to take account of the level of his pain.

24. In October 1993 the plaintiff was referred to Dr. Hughes, an orthopaedic specialist in shoulder and elbow surgery. He advised further investigations. An ultrasound was performed. On review in October Dr. Hughes reported as follows:

I reviewed John Goff on 21st October, 1993. If anything, his
signs of capsulitis are more marked. An ultrasound was
performed and showed no gross abnormality.
Clinically Mr. Goff has an adhesive capsulitis which may be
still in the evolving phase. I do not believe he has
significant symptoms from his loose body at the present time,
therefore an arthroscopy to remove it may not benefit him and in
the presence of an adhesive capsulitis, it may well make him
worse. For that reason we should just observe his movements and
his pain over the next few months.
The natural history of adhesive capsulitis is one of resolving
pain and then at a later stage, resolving stiffness. It is
difficult to say whether he has reached his most painful and
stiffest part of the natural course of things, but we will wait
and see how he fares.

25. The plaintiff was finding that his left foot was dropping. Dr. Pell observed the considerable scar tissue at the L4/5 level. Despite the risk that improvement might not be permanent he advised operation. On 5 November 1993 he removed scar tissue over the nerve root at L5. The plaintiff spent about 8 to 10 days in hospital. When he recovered from the operation, there was no improvement of the foot drop. He was not able to return to work.

26. Dr. Hughes reviewed his shoulder on 10 January 1994. There had been only slight improvement since the previous October. There was still diffuse tenderness about the shoulder, which indicated to Dr. Hughes that recovery was still some time off. He advised against an operation to remove the loose body in the joint.

27. On 11 January 1994 Dr. Pell noted the deterioration in the condition of the left leg. He warned the plaintiff that this was probably the result of scarring, and that further surgery would probably not help. On 14 February 1994 he admitted the plaintiff to hospital and performed a lumbar epidural injection in an attempt to settle the recurrent left sciatica. The procedure was itself painful, and gave relief for only a few days.

28. Soon afterwards his neck pain progressed to his left arm, and then became severe. On 15 March 1994 he was admitted to hospital on an urgent basis with severe left brachialgia. Dr. Pell arranged a cervical myelogram, which showed marked spondylotic compression at C5/6 and C6/7. After consultation with a consultant neurologist, Dr. Pell operated on 18 March 1994 and performed a full laminectomy of C5, 6 and 7. He hoped that the operation would give some relief, but warned the plaintiff that pain might persist because of the severe spondylosis. The plaintiff was in hospital until 25 March. He found that the arm pain was relieved, but that he still had pain in the neck itself.

29. He was admitted to hospital on 10 May 1994 for a further epidural injection to relieve the leg pain. Dr. Pell noted that the arm pain had improved but that there was still significant left shoulder pain.

30. When Dr. Hughes reviewed the condition of his shoulder in May 1994 he was still recovering from the cervical spine surgery. There had been a significant increase in the shoulder symptoms, and the plaintiff was quite disabled. He said that he was unable to work, and needed regular assistance from his wife in the activities of daily living. He could not dress himself, drive a car or use public transport. On examination Dr. Hughes found restriction of movement at the shoulder, with extreme pain at the extremes of available movement and wasting of the associated muscles. In Dr. Hughes's opinion the shoulder injury alone was sufficient to prevent him from working. His prognosis for the shoulder in the presence of the significant cervical spine problem was poor. He still advised against operation to remove the loose body.

31. In September 1994 the plaintiff attempted a return to light duties at work. He helped organise a greyhound cup meeting, working between 1 and 4 hours a day. With medication he coped for a while, but after about 5 weeks the pain in the neck and shoulder prevented him from continuing. On 17 November 1994 Dr. Pell certified that in his opinion the plaintiff should be considered for early retirement. His certificate specifically referred to the ongoing disabilities resulting from the work related injuries that the plaintiff received on 7 May 1992 and 1 March 1993. In his opinion there was nothing that could be done surgically to help the plaintiff. He organised a period of admission to hospital for cervical traction, in the hope that it might settle the pain down to a bearable level.

32. Dr. Tym, consultant psychiatrist, examined the plaintiff at the request of the solicitors for the defendant on 4 October 1994. He found no evidence of any psychiatric illness or disorder.

33. On 28 October 1994 the plaintiff was examined by Dr. Katelaris, urological surgeon. He reported that the plaintiff had a stable bladder of normal capacity, with intact sensation and no evidence of outlet obstruction. He did not think that there was any causal relationship between the bladder condition and the accident. He did not comment on the plaintiff's impotence or lack of bowel control.

34. The plaintiff needed urgent heavy sedation, prescribed by Dr. Sivakumaran, for his shoulder and neck pain in November 1994. Because of the ongoing symptoms Dr. Hughes performed an arthroscopy on 31 January 1995. The examination demonstrated that it was pain that was restricting his movement of the shoulder. Dr. Hughes's diagnosis was of traumatic chondral avulsion of the left humeral head and secondary post traumatic osteoarthritis. The condition was obviously caused by trauma rather than degeneration. The prognosis was poor. The only real option left was a left shoulder arthroplasty. There are some risks involved, especially because of the other significant neurological problems, but Dr. Hughes expected that the operation would result in proximately two thirds normal range of movement, moderately good strength and good relief of pain.

35. Dr. Andrews, neurologist, reported to Dr. Sivakumaran on 14 August 1995 that a recent MRI scan showed that the plaintiff has a disc protrusion at the C5/6 level, causing severe radicular pain in the left arm and neck. He advised that it would probably be better to treat the cervical disc before operating on the shoulder. The plaintiff has accepted this advice and intends to undergo the shoulder operation if the condition of his neck can be improved. If the neck does not improve to the extent that he could put up with having the shoulder operation, he had some doubt whether he would undergo it.

36. At the request of the defendant's solicitors, Dr. Roderick McEwin examined him on 16 November 1994. In his assessment the plaintiff is permanently unfit for any work because of the degenerative changes in the cervical and lumbar spines. His comments on the relationship between his various conditions and the motor car accident were as follows:
DIAGNOSES:
1. Degenerative spondylosis and disc disease of the lumbar spine at L2-3, L4-5 and L5-S1 since 1965 with surgery in 1968 and 1975, by his memory, assisted by some medical notes. Says that the pain became worse after the 1993 accident, but operative and X-ray changes show that the symptoms in 1993 were due to degenerative changes in the spine due to increasing age, and the previous trauma to the spine over nearly 30 years.
I believe that his back pain was aggravated by the 1993 accident for a period of 3 or 4 months, based on his history.
2. Cervical spondylosis. By the X-rays this degeneration was present prior to the 1993 motor accident, but his history indicates that his pain levels were increased following the 1993 accident. I therefore consider that this accident aggravated his cervical spondylosis for a period of about 6 months.
3. Chondromalacia of the right knee with degenerative changes in this knee seen by X-ray. These changes are basically age related degenerative changes, though again he states that the symptoms in the right knee were present after the accident of 1993. I therefore consider that the pathology in the right knee was aggravated by the 1993 accident for a period of 6 to 9 months.
4. Supra-spinatus tendonitis and capsulitis of the left shoulder which, by his history, arose from the 1993 motor accident.
RELATIONSHIP TO THE ACCIDENT OF 1993: As stated above, I consider that this accident aggravated the symptoms of some of his diagnoses, but the injury to the left shoulder may have arisen out of this motor accident.

37. Dr. McEwin examined him again on 20 July 1995. The solicitors provided him with a number of reports by other doctors, particularly those of Dr. Pell and Dr. Hughes, which contained detailed information that he had not previously known. In his opinion the plaintiff needed assistance with his toilet, bathing and dressing at home by a nurse. His ability to be cared for at home by his wife was becoming marginal. Treatment of his pain offered a major challenge to his medical therapists. He advised against further surgery on the neck. Apart from changing the diagnosis about the shoulder to "cartilaginous damage to the left humeral head with osteoarthritis", his opinion was unchanged from that in his previous report. He noted however that the plaintiff was in more pain than he had been on the previous occasion.

38. Comcare referred the plaintiff for assessment to Dr. Mestitz, consultant physician, who saw him on 9 May 1995. He thought it unlikely that there would ever be much improvement in his physical condition. He noted that the plaintiff appeared normally and appropriately depressed. In his opinion the accident in March 1993 had severely aggravated the plaintiff's cervical and lumbar degenerative disease, and caused fresh injuries to his left shoulder and right knee. He attributed the subsequent neurogenic bladder and partial loss of bowel control to the treatment of the lumbar spine.

39. Dr. Cairns, orthopaedic surgeon, examined the plaintiff for the defendant's solicitors on 11 May 1995. He also was provided with reports by other doctors. He examined this material both before and after his examination of the plaintiff. His summary of his findings was as follows:
In summary, therefore, this 60 year old man is significantly disabled by a number of physical disabilities, which he alleges were either caused by, or aggravated by, injuries sustained in a motor vehicle accident in which he was involved on or about 1 March 1993. These injuries and subsequent disabilities either alone, or in combination with the others, are such as to preclude his resumption of work, in my opinion permanently.
In respect of his ongoing neck disability, the investigations clearly demonstrate that he suffered from significant multi-segmental and pre-existent degenerative changes within the cervical spine. It is reasonable to accept that these changes may well have been asymptomatic prior to the accident, and historically appear to have been provoked and aggravated thereby. Neck and related upper extremity disability is likely, in my opinion, to be permanent, and alone would very likely be sufficient to prevent him resuming gainful employment.
In respect of his left shoulder, I am not certain that the pathology of the humeral head is a result of involvement in the said accident, but historically symptoms arising therefrom appear to have been provoked and aggravated by that involvement. Equally, there is the possibility that he may require shoulder replacement at some stage in the future, but I do not accept that the injury was totally caused by his involvement in the accident, and would attribute responsibility 50% thereto, and likely costs of total shoulder replacement would be of the order of $5000-$6000. Given Mr. Goff's other physical disabilities, I would consider it unlikely that he would subject himself to this operation, given all the circumstances.

In respect of his lower back, it seems very likely to me that he was already experiencing difficulties with his lower back and left lower extremity prior to the accident, to the extent that he was intending to undergo further investigation of his lower back and left lower extremity disorder, with a view to undergoing further surgery. While he claims that the motor vehicle accident caused substantial aggravation of his lower back and left lower extremity disorder, in terms of symptoms, I do not believe that it made any significant difference to the underlying pathology for which he was already considering surgical treatment. The subsequent problems which he has experienced after the surgery are equally not a direct consequence of the aggravation caused by the motor vehicle accident, in my opinion.
Problems arising from his right knee appear to be due to a pre-existent degenerative disorder within his right knee, as I cannot associate the mechanism of injury as being likely to cause the degree of disability to which he relates to his right knee. I suspect that the overall emotional response to the various areas of aggravation caused by the motor vehicle accident are causing some degree of psychogenic magnification of his right knee disability, and possibly to the other injuries as well. In any event, the combination of all these disabilities are such as to cause permanent incapacity for work.

40. The solicitors wrote to him for further advice, to which he responded as follows:
In response to the specific question which you raise, I believe that it is more likely than not that had Mr. Goff not been injured in the accident he would have been forced to retire before the age of 65 as a result of his pre-existing medical condition and/or other related problems he has suffered since the accident, but unrelated to the accident.
I say this on the basis that the history quite clearly indicates that prior to the accident he was awaiting admission to St. Vincent's Hospital in Sydney for further investigation and possible surgery on his lower back. It is my opinion that that surgery would have taken place in any event, had the accident occurred or not, and the problems which he has suffered post-surgery would have eventuated regardless of the advent of the accident. I have no cause to doubt Mr. Goff's claim that the accident aggravated the status of his lower back, but I do not believe that that had any bearing on what was to be the eventual outcome of his investigations and contemplated surgery arising from those investigations.

41. Dr. Tym re-examined him on 16 August 1995. There was still no evidence of any psychiatric disorder. He was understandably miserable and unhappy, but not abnormally or morbidly so. In his comments about the relationship between the motor car accident and the plaintiff's condition, Dr. Tym, who has a Fellowship in surgery in addition to his psychiatric qualifications, reported as follows in his first report:
From Dr Pell's accounts it is not reasonable to attribute to the accident on 01.03.93 (i) the need for his past two lumbar spinal operations, (ii) the left foot drop and (iii) the progressive loss of sacral nerves functioning (impotence, urinary and faecal incontinence, peri-anal anaesthesia).
There is also reasonable doubt that the need for cervical spine surgery was a sequela of the accident on 01.03.93.
The left shoulder injury and the right knee injury appear to be sequelae of the accident on 01.03.93.
The bilateral numbness of the medial three fingers on waking is most probably ulnar nerve compression at the elbows and unrelated to cervical spinal pathology and unrelated to any sequelae of the accident on 01.03.93.

42. In his later report he commented as follows:
Apropos the subject accident there is, in my clinical judgement, little of his present mental and physical state that can be attributed to any sequelae of it.
From his account of the subject accident and his account of his actions immediately afterwards, it is highly unlikely, if not impossible, in my clinical judgement, for the subject accident to have been the sole or major cause of his left shoulder damage. In this regard I agree with Dr A Cairns.
And for the same reason, it is unlikely, in my clinical judgement, that the subject accident was anything more than a mildly aggravating factor in his lumbar spine and cauda equina (neurological) pathology.
There is no clinical reason to suppose, either, that the subject accident had any deleterious effect on his cardiac, pulmary (sic), gastric or cholestral pathologies. In my clinical judgement, had the subject accident not occurred, he would be much the same, physically and psychologically, as he is now and would be on all the same medication.

43. Oral evidence was given by the plaintiff's general practitioner, Dr Sivakumaran, who had treated him from 1989 onwards, when the plaintiff came to Canberra.

44. His overall impression was that, in spite of his back problem, the plaintiff had been quite active, without taking much time off work, before the subject accident, but that after it he had gradually deteriorated, with increasing pain and post operative complications. Especially in the last few months, with the added difficulty in walking without a caliper and a stick, he had deteriorated and become very depressed.

45. In his view, the plaintiff's principal problems before the fall at work in May 1992 had been cardiac. Although his spine had been affected by the previous accidents, he had not complained of progressive back pain. It had been the fall that had exacerbated that pain. After that incident he had been fit for light duties only, as a result of the combined effect of degenerative spinal changes, the previous accidents, and the fall.

46. He was satisfied, before the subject accident, that the plaintiff had sustained a lumbar disc lesion, although he could not be certain about its severity. The likelihood was, he conceded in cross examination, that the plaintiff would have had the laminectomy in March 1993 even had the car accident not happened. The car accident caused some exacerbation of the lower back condition. There were pre-existing conditions in the neck and shoulder which were exacerbated by the accident.

47. In a letter dated 15 June 1995 Comcare advised the plaintiff's solicitors that it accepted liability for "aggravation of pre-existing L4/5 nerve root compression by spondylotic disease L4/5, shoulder subacromial (?) impingement indicative of adhesive capsulitis" relating to the accident on 1 March 1993.

48. It noted that Comcare made no incapacity payments arising out of the incident on 7 May 1992, and that medical treatment had ceased on 22 January 1992.

49. Comcare therefore considered that all incapacity and medical payments incurred by the plaintiff since 1 March 1993 related to his claim in respect of that accident, and Comcare would seek to recover the total compensation paid since that date out of the fruits of this action.

50. With respect, that decision can not be correct, in the light of the whole of the evidence.

51. There was no claim by the plaintiff for incapacity payments because, according to his evidence, he continued to work despite his increasing pain and discomfort following the fall at work on 4 May 1992. Whether or not claims were made for treatment between 22 January 1992 and 1 March 1993, about which there is no evidence before me, it is clear from Dr Sivakumaran's records, which are in evidence, that the plaintiff consulted him about the fall at work, and the back pain it caused, on 7 May, 15 May, 23 May, 20 June, 12 October, 27 October, 16 November and 25 November, and that Dr Sivakumaran referred him first to Dr Chandran, and then to Dr Pell in Sydney.

52. Dr Mestitz, who saw him once only, on 15 May 1995, did not refer in his report to the fall at work in May 1992. The history taken by him is deficient, in that he reported, "In spite of some previous ill health detailed below, Mr Goff was extremely fit and working full time until the day of the accident."

53. How he came to that view I do not know, but both the contemporaneous and the later evidence is overwhelmingly to the contrary. As the treating neurosurgeon, Dr Pell, commented in his report dated 16 September 1994, "Mr Goff has long standing back problems related to previous injuries for which he was booked into St. Vincent's Private Hospital for lumbar myelogram and decompressive surgery at the first instance. However, as a result of the motor vehicle accident on 1/3/93 the pain had worsened although there was no further neurological deficit."

54. On the whole of the evidence, my findings on the balance of probabilities are as follows:

1. Lower Back.
55. The process of degeneration in the lumbar spine began with the accident in 1965, which required the laminectomy in 1966. It had further deteriorated when the 1977 operation took place. Thereafter, it was relatively asymptomatic, though damaged, until the 1987 accident, which I do not think caused any major exacerbation.

56. However, by 1992, with that history, he had a back which was obviously susceptible to further injury, which in fact he sustained in the fall at work on 4 May 1992.

57. That incident caused such an exacerbation that it became almost certain that he would undergo the procedures and operations in March 1993. At that operation Dr Pell found the L4 nerve root compressed by spondylotic disease and the left L5 nerve root caught in scar tissue from previous surgery. Those findings are quite inconsistent, in my opinion, with any finding other than that it was the fall at work, and not the car accident, which necessitated the operation on the lower back. The car accident aggravated the back pain for a time, but, in the words of Dr Cairns, "I do not believe that it made any significant difference to the underlying pathology for which he was already considering surgical treatment." Dr McEwin's view is similar.

2. Urinary, bowel and sexual dysfunction.
58. In the absence of any evidence of physical obstruction, or of any direct expert advice to the contrary, my lay mind tends to the view that those problems probably result from some damage to the nervous system which resulted from the operations on the lower back. They are therefore not directly attributable to the motor vehicle accident.

3. Cervical spine.
59. Deterioration in the cervical spine also possibly began as far back as the 1965 accident, though there is no evidence of anything other than soft tissue injury in the region at that time. There was soft tissue injury again in the 1987 accident. There is no evidence that he was suffering any significant neck discomfort when he came to Canberra in 1989. He made no complaint about his neck when he reported the May 1992 work accident to Dr Sivakumaran. He did however complain of pain in the region immediately after the subject car accident, and Dr Sivakumaran noted limitation of all movements of the neck. By July 1993 the neck pain had worsened, so that Dr Sivakumaran sought Dr Pell's advice about it. I am satisfied that there was some pre-existing pathology in the cervical spine, which was asymptomatic, and which was seriously aggravated and made symptomatic by the motor car accident.

4. Right knee.
60. There was X-ray evidence of degenerative change in the right knee, which may have antedated the accident, but it was completely asymptomatic. Despite the views of Drs McEwin and Cairns, the mechanism of the injury is given by the plaintiff's evidence that in the accident he struck his knee on the window winder. The knee, which may have been inherently susceptible to injury, was in my view injured in the subject accident, and all his subsequent problems in the knee area are attributable to it.

5. Left shoulder.
61. The plaintiff also gave evidence of a mechanism capable of causing injury to his shoulder, as he had his hand on the gear lever when he was thrown forward. The shoulder had probably already been injured to some extent, as appears from Dr Sivakumaran's clinical notes, but it was not troubling him at the time and may only have been made susceptible to injury by the previous traumas. On balance I would attribute all his present shoulder discomfort to the subject accident. Unfortunately I think it is unlikely that his neck condition will improve sufficiently to enable him to get any benefit from an operation, which must be assessed as a possibility rather than a probability.

6. Left foot drop.
62. This appears to be a consequence of the lower spinal operations, and not attributable directly to the subject accident.

7. Income earning capacity.
63. It is quite possible that, had the subject accident not happened, the consequences of the fall at work and the resulting operations would have been that the plaintiff could not have returned to work.

64. It is also quite likely that, even had there been no disability resulting from the condition of the lower back, the plaintiff's neck, shoulder and knee problems would have disabled him in any event.

65. I would attribute his loss of income earning capacity equally to the work accident and the motor car accident.

8. Treatment expenses.
66. Although there is in evidence a schedule of payments made by Comcare, it is not possible for me to interpret them in any way so as to isolate those that related to the knee only, to the neck only, to the shoulder only or to the lower back only. In any event, it is clear from Dr Sivakumaran's notes that many, indeed most, related in some way to all his injuries. Save for the expenses of the 1993 lower back operations, which were attributable to the work accident, I would apportion the balance of the out of pocket expenses equally between the two accidents.

67. At the invitation of counsel I therefore announce these findings and adjourn the matter for further hearing on a date to be fixed to enable consequential orders to be entered up, either by consent or after further argument.