George John Russell v Alyth Investments Pty Ltd [1996] ACTSC 120 (12 December 1996)

SUPREME COURT OF THE ACT

GEORGE JOHN RUSSELL v. ALYTH INVESTMENTS PTY LTD
No. SC737 of 1991
Number of pages - 15
Negligence - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY HOGAN AJ

CATCHWORDS

Negligence - personal injury - work accident - lifting incident - no issue of principle.

Damages - assessment - personal injury - work accident - subsequent falling accident - back injury - causation - no issue of principle.

HEARING

CANBERRA, 23,24 October 1996 12:12:1996

Counsel for the Plaintiff: Mr B Salmon QC with Mr R Crowe

Instructing solicitors: Peter Smyth Burnett & Co

Counsel for the Defendant: Mr M Cranitch SC with Mr M Inglis

Instructing solicitors: Nevill & Edwards, by their agent Pappas, J - Attorney

ORDER

THE COURT ORDERS THAT:
There be judgment for the plaintiff against the defendant in the sum of $7,000.00.

DECISION

HOGAN AJ
1. When this hearing commenced, there were two actions before the Court which, by consent of all the parties, were to be heard together.

2. The first, in which Alyth Investments Pty Ltd is the defendant, is a claim for damages for personal injury which the plaintiff sustained in a lifting accident at work on 8 December 1985.

3. The second, against Michael Gerard O'Shea, was a claim arising out of further injury suffered by the plaintiff in a motor car accident on 12 February 1992.

4. On the third day of the hearing, that second action was settled, the defendant consenting to judgment for $50,000.00 plus costs.

5. The plaintiff was born in Poland in 1958, but grew up and went to school in Australia. He left school shortly before attaining the age of 15 years and began work as a labourer. He has basic reading ability but cannot write. Later he acquired skills as a spray painter, in which occupation he worked regularly for a number of employers, although there were some periods when he had other jobs.

6. He obtained a position as a spray painter with the defendant where he also learned to be competent at sandblasting.

7. On a date early in November 1985, he was to do some sandblasting work on a sculpture at Parliament House. He claimed in his evidence that he was instructed by Graham Kelly to return to the defendant's depot to bring a mobile compressor to the site. He drove a utility back to the depot where he found the compressor.

8. There is no reliable evidence of the weight of the machine but, from the description of it, the photograph of a machine like it, and common sense, it is easy to conclude that it would have been of such a weight and size that mechanical means would have been appropriate to lift it on to the back of a utility truck, or, if that was not available, a number of strong workers, probably more than two, would be needed.

9. The plaintiff was alone. There was no lifting machinery available. The compressor was on wheels. He had no difficulty in pulling it to the back of the utility where he lowered the tailgate.

10. He lifted one end of the compressor and put it on the tailgate. Then he went to the other end of the compressor, crouched down and, with his hands underneath the tank, proceeded to lift it. He lifted it to a position where it was about level with the tailgate. He said that he then felt "a horrible burning, tearing sensation in my back and I dropped it and fell back". He swore that he landed on his buttocks, to the best of his memory. The compressor fell to the concrete. He said that "Joan, the girl that - tends the bowsers came over and asked if I was okay". He was shaken and sore and went home. He reported the incident to a person called Jan, in the office, but could not recall whether he did so on the day of the accident or later.

11. The plaintiff's evidence was vague about the date on which the accident happened and the time. A claim form that was filled in for him and which he signed gave the details as Tuesday, 12 November 1985 at 12 noon, Jan Stevenson as having been notified, and Joan Gregory as having been a witness. The injury was described as back pain.

12. In a statement that was taken from him by an investigator, Mr Allen, at the end of January 1986, the date of the accident was recorded as Monday, 11 November 1985. There was no mention of falling on his buttocks. Tuesday, 12 November 1985 was recorded as the date on which he went to see his doctor, Dr Shihoff.

13. The plaintiff said he had no recollection of making the statement to Mr Allen, but I have no doubt that the investigator accurately recorded what he was told by the plaintiff.

14. Joan Gregory was called by the defendant and gave evidence that she had no recollection of having witnessed the incident or of going to the plaintiff's assistance. She had, however, heard from other staff members that the plaintiff had a sore back.

15. Despite those criticisms of the evidence from the plaintiff, I have no doubt that the accident happened much as the plaintiff claimed in his evidence. Counsel for the defendant did not suggest that if I accepted that evidence, a finding of negligence should not follow.

16. There will therefore be judgment for the plaintiff and no reduction on account of contributory negligence.

17. The real issue in the case is the extent of the injury sustained in that accident, in the light of further incidents, one on 1 June 1986 in respect of which he made no claim for compensation, and the other in February 1992, in respect of which he has now become entitled to compensation of $50,000.00.

18. Dr Shihoff's clinical notes are in evidence. They record that on 12 November 1985 the plaintiff told him that he had lifted a compressor on 8 November 1985. I do not regard the discrepancy in the date as significant. The complaint was of low back pain. He ordered an x-ray of the lumbo-sacral spine.

19. On 14 November 1985 he recorded "6 lumber vertebrae. Narrowed L5/6". He referred the plaintiff to Mr Rumore for physiotherapy.

20. On 18 November he recorded the complaint as "Still pain but better". He gave a certificate for absence from work until 19 November and prescribed Voltaren.

21. Mr Rumore reported to Dr Shihoff on 20 November 1985. His findings on examination included decrease in lumbar spine lordosis and painful restriction of lumbar spine flexion. No abnormality was detected neurologically or on dural tension test. On palpation of L5, he reproduced the symptoms complained of.

22. Treatment consisted of manipulation to L5 and commencement of a progressive spinal exercise program. He reported that following three treatments, full resolution of all signs and symptoms were noted.

23. It is clear from the compensation records and the statement to Mr Allen that the plaintiff returned to work on 20 November 1985.

24. The plaintiff's group certificate for the year ended 30 June 1986 shows that he left the defendant's employment on 22 May 1986. In his evidence in chief, he described the circumstances in which he left work as follows, And then at some stage, what happened which caused you to cease work?---Well, Graham Kelly was sacked and one of the other guys took over the position, Stan. Me and him were the most two experienced people there and one of other young guys that was put on, he just got married and he was going to be sacked. Not for the reason of he was no good, it was the reason that there was no work available at the time. So I approached Stan and told him that I was having trouble with my back and I was contemplating leaving because of the back so I took the option and left.

25. Both the plaintiff's wife and his father-in-law gave evidence that during this period there were occasions when the plaintiff had obviously experienced some soreness in his back after a day of heavy lifting and he would lie on his back on the floor to gain some relief. She also said his back ached if he had to stand or sit for too long, or did any gardening.

26. Her evidence is not really reliable on the question of when exactly was the period during which he exhibited that pain behaviour.

27. The plaintiff's own description of his condition during that period was that he had no problems with his back when he first returned to work. He told Mr Allen on 30 January 1986 that since returning to work on 20 November 1985 he had not suffered any back problems. It was all heavy work and there was no such thing as light work. Sandblasting was heavier work than spray painting because of the need to load a truck with many bags of heavy material, and then tip the material into a receptacle called a pot. Despite what he told Mr Allen, he said that it was a few weeks after returning to work that he started having trouble in his back, after lifting those bags.

28. It would be quite understandable that he still had some residual soft tissue weakness which could become exacerbated by that sort of activity. He did not seek any treatment for it, although he consulted Dr Shihoff on 12 February 1986.

29. It by no means follows either that he was then displaying symptoms of disc injury, or that the state of his back was the cause of his deciding to give up his job with the defendant.

30. His wife was working at the time. He seems to have been able to receive a social security benefit. He had an interest in the activity of breeding racing pigeons, even though he did not have enough money to go into business at it. There may also have been more than a little truth in the spontaneous suggestion by Mr Munns, his father-in-law, that he had in mind the possibility of joining Mr Steward, who was soon to move to Toowoomba, because of his interest in horses.

31. I am simply not persuaded that he left his job with the defendant because of problems with his back.

32. A friend of the plaintiff's, Mr Don Steward, had operated a quarter horse stud property at Prospect. He had sold the property on terms that he was permitted to remove the stables and a shed. He told the plaintiff that he did not want the roofing material on the shed and agreed that the plaintiff might take it away.

33. On 1 June 1986 the plaintiff and Mr Steward began taking the roof off the shed. The plaintiff fell through the roof. He said he had no memory of what happened immediately thereafter and next remembers waking in the ambulance. Mr Steward said that he fell onto lucerne stacked in the shed.

34. The plaintiff was taken by ambulance to Blacktown Hospital, where an x-ray revealed a fracture of the spine at L4. He was given Pethidine. He was allowed to leave the hospital later that day, although apparently because he insisted on doing so.

35. Mr Steward left the next day to look for a property at Toowoomba and the plaintiff remained at Prospect to look after the property. His wife and her father came there to join him and they later returned to Canberra.

36. He saw Dr Shihoff there on 6 and 17 June 1986. Dr Shihoff noted the history of a fall from the roof and the diagnosis of a fracture of the lumbo-sacral spine from Blacktown Hospital. He prescribed Digesic and Normison and provided a letter for Social Security.

37. Later that year, the plaintiff went to Queensland, again to help Mr Steward. He began to suffer paraesthesia over the left thigh and sharp stabbing pain in the left groin area. There was also an aching pain in the lower back. He was referred to Dr Bookless, an orthopaedic surgeon in Toowoomba, who later surgically decompressed the lateral cutaneous nerve. The thigh paraesthesia was not related to the spinal fracture, in his opinion.

38. He then returned to Canberra and consulted Dr Shihoff, who referred him to Dr Chandran, neurosurgeon. Dr Chandran saw him first on 3 April 1987. In September 1987, he was able to review x-rays taken on 13 November 1985. These showed six lumbar segments and a mild compression of the anterior superior plate of L4 vertebral body. This is consistent with Dr Shihoff's report. Dr Chandran diagnosed a mild soft tissue injury in the back. There were no neurological deficits. He prescribed physiotherapy.

39. The plaintiff later made a claim on Sentry Life Assurance in respect of a policy taken out in connection with a loan from BFC Credit. In connection with that claim, Dr Chandran reported, Mr Russell seems to give a history of an injury to his back in 1985, then a fall in June 1986, with fracture of the L4 vertebral body, then continuing symptoms. His symptoms suggest a mild soft tissue injury in his back. There is very little else to find and any assessment of disability is based largely on his complaints.

40. He reviewed him on 14 February 1989. There were complaints of increasing back pain. A CAT scan did not show any significant abnormality. He arranged a facet block injection with steroids. He later suggested surgery.

41. In August 1989, Dr Shihoff referred the plaintiff to another neurosurgeon, Dr Robson, for a second opinion about surgery. Dr Robson saw him first on 7 August 1989. He made no complaint to Dr Robson about the lifting accident at work. He attributed his problems to the fall from the roof. So did Dr Robson, at least in October 1990, when he was later told about the work accident. He diagnosed a crush fracture of the fourth lumbar vertebra, with a disc rupture at L4/5 and advised surgery.

42. In June 1990, Dr Robson performed a fusion operation, which he thought was successful in that the graft was solid and the troublesome disc had been removed.

43. The plaintiff had been involved in a rear-end collision in December 1987 in which he sustained slight and temporary injury to the neck and back.

44. He spent some time driving taxis for Mr Munns, his father-in-law.

45. He claims that he has not been able to do any heavy work since the fusion operation on his lower back.

46. Dr Robson also performed further operations on the nerve in the groin area.

47. On 12 February 1992, the plaintiff was driving a taxi which was involved in a collision with a car which did not give way at an intersection. The injuries that he received related principally to his neck.

48. The action that was settled concerned the injuries that he received in that accident. His later condition was complicated by another accident that occurred on 8 July 1992.

49. Dr Robson saw him again in November 1992 and later investigation showed a gross disc bulge at C6/7. He performed a fusion operation on the neck in July 1995. This also was, in his opinion, successful.

50. The plaintiff had been referred to Dr Newcombe, neurosurgeon, who saw him first on 4 September 1991. In his opinion, it was reasonable to conclude on the balance of probabilities that there had been a herniation and minor fracture of the upper part of the L4 vertebra in the lifting incident of November 1985. In his evidence he gave his opinion that the fracture was to be noted but the disc herniation was the predominant cause. Because of the presence of six lumbar vertebrae, he preferred to refer to the disc as being at L5/6 rather than L4/5.

51. The history recorded by Dr Newcombe in his report of that examination dated 1 November 1991, was, He continued to have back pain and paraesthesiae in the lower limbs. Physiotherapy was arranged and he was off work for a time. There was continued pain.

52. The report later continued, I understand from Mr Russell the compressor weighed 300lb. There was continued back pain and he noted leg pain subsequently. He had not been able to work since February 1986. The second incident on 5/6/86 did not change his prior low back pain.

53. That, of course, is not an accurate summary of the actual history as it now appears from the evidence. In his cross-examination, Dr Newcombe gave the following answers, If the patient has an incident as a result of which he makes a recovery in the sense that he has no symptoms thereafter and remains symptom free for a matter of almost two months, that is suggestive, is it not, of an incident which one could properly describe as a lumbar sprain without discal involvement?---Yes. And then if that patient does not attend a medical practitioner for the purposes of back pain for a period of some seven months but subsequently to a fall from the roof which involved a fracture of the type that you have seen here, and thereafter continues to see a doctor on a regular basis, that would suggest, would it not, that he probably had a disc herniation at the time of the fall if one accepts that history?---Yes. HIS HONOUR: Well, that is ambiguous. Do you mean had a disc herniation - - - MR CRANITCH: At the time of the fall from the roof rather than at any time. HIS HONOUR: And it was caused by that? MR CRANITCH: Yes. You understood what I was saying, didn't you, doctor?---Yes. Now, doctor, did you get to see any x-rays on November 1985?---I think not. Certainly you make no reference to such x-rays in the course of your report?---No. I don't think I saw any Ô85 x-rays. Doctor, if - and I again put it to you hypothetically, doctor - a person having had a lifting incident of the sort described by this gentlemen in November 1985, resumed heavy work in the sense that he was required to lift heavy bags of material weighing I think he described on one account of it something like 50 pounds, 30 or so per day to load up trucks and to use heavy sandblasting equipment without missing a day from work, would that reinforce the view that he may have only had a lumbar sprain in the initial incident rather than a back injury which involved any disc problem?---He be referring that work when? [sic] From the end of November - 20 November 1985 - through until he finished work we believe some time in February or March of 1986 with the usual Christmas break?---Yes.

54. In fact, the plaintiff worked until 22 May 1995.

55. In re-examination, Dr Newcombe agreed that if there had been a recovery, but that later pain returned and then became fairly static for a long period of time, that would be consistent with there having been a disc herniation at the beginning. It was the patient's complaint of pain rather than whether he sought treatment for it that mattered.

56. I am not satisfied that in fact the pain did return and become fairly static for a long period of time.

57. The x-ray of 13 November 1985 had been reported on by Dr Gael Brook, a specialist in radiology. The actual x-ray was not available to be put into evidence. She was referred to her report, and was later shown the x-rays taken immediately after the fall on 1 June 1986.

58. On 1 October 1996 she commented as follows on her November 1985 report, My report noted narrowing of disc L5/6 and no other abnormality. The patient had sustained trauma in the day or so before this x-ray. I would therefore have been looking for fracture and the fact that I did not see one makes it extremely unlikely that a fracture was present. As the films are missing I can be of no further help.

59. On 16 October 1996, she reported, Today I viewed the x-rays of Mr George Russell dated 1.6.86. A single AP and a single lateral view of the lumbosacral spine were available. Six lumbar vertebrae are present and I will name these T.12 and L.1 to L.5 for purposes of nomenclature. There is a fracture of the superior articular end-plate of L.4 anteriorly. A fragment has been separated from the body and has an illdefined margin indicating that it is a recent fracture. This could not have dated from November, 1985. In addition there is narrowing of disc L.4/5 and possibly also L.5/S.1.

60. In her evidence, she was shown a myelogram that had been taken after the June 1986 accident, Exhibit G. The disc compression was axial, which could have been caused by a lifting incident, but falling from a height would be a classical way of causing it.

61. Dr Chandran gave evidence. He was shown the x-ray of June 1986. It demonstrated a fracturing of the bone, which he referred to as L4, on the anterior surface, on the front surface of the body extending to the corner of that bone in what he called the anterior superior corner. The fracture was superimposed on the area of the previous abnormality. He said, "The abnormality I described as being found in 1985 is not this fracture". Being a plain x-ray, it could not, of course, have excluded or demonstrated a recent disc lesion. The disc rupture was demonstrated by the myelogram of September 1989.

62. During cross-examination, Dr Chandran agreed that if the plaintiff had suffered disc injury in the lifting incident, it was extremely unlikely that he would have been able to return soon afterwards to heavy lifting work without complaint. He adhered to the view that he had expressed earlier, that the symptoms suggested a mild soft tissue injury in the back resulting from the November 1985 incident.

63. Dr Robson gave evidence. He had first seen the plaintiff in August 1989 and attributed his symptoms to the recent fall. He had been given further information about the lifting incident. By the time he was asked to comment, the situation had become further confused by the later problems with the neck.

64. In his report to the plaintiff's solicitors dated 19 July 1993, Dr Robson refers to a report from Dr Chandran, ... in which he speaks quite categorically of the fracture of the vertebra and this is dated of course before the incident.

65. I take this to be a reference to Dr Chandran's report of 8 September 1987, where he referred to the small compression of the anterior superior plate at L4.

66. Dr Robson continued, I think this simply has to mean that the changes are attributable to something that occurred before the fall from the roof which in any case sounds to be a fairly trivial happening, and on this basis I think it is proper to attach the problem to the incident he described lifting the piece of machinery.

67. He did not then know that Dr Chandran was to say that the abnormality that he observed on the 1985 x-ray was not the avulsion fracture that he saw on the June 1986 x-rays.

68. It is also not accurate to describe the fall as a fairly trivial happening, since it was the fall that caused the avulsion fracture, even if it had not caused the small compression of the superior plate.

69. Dr Robson also spoke of his experience, in which meralgia paraesthetica, the symptoms felt by the plaintiff in his thigh, sometimes had been associated with lower back disc problems, although there was no demonstrable causal connection. He had no record of the onset of the problem. There is no evidence that it came on until after the fall from the roof. In any event, a causal connection depends upon which incident caused the disc rupture.

70. During his cross-examination, Dr Robson gave the following answers, Up until you were advised by the solicitors, your thesis was that he had had a fall, he had a compression and a fracture; that was associated with a protruded disc?---Yes, he had been told that in hospital in Brisbane in Queensland and events have gone on on that basis. And that was a history which was perfectly consistent with his presentation to you, is that right?---That was one explanation. If that scenario had occurred, that sequence of events physically with his back, as you said, there would have been considerable soft tissue trauma associated with the ruptured disc. That soft tissue would take some little time to resolve, would it not?--- Yes. And we are not talking here about a matter of days or even a week, are we? It would normally take something like three or four weeks before people began to get comfortable again, following that sort of soft tissue trauma associated with a disc lesion?---I think a week is on the lower end of the scale. It would be extremely unlikely, doctor, that somebody after a couple of physiotherapy treatments within eight days would be saying, "I feel fine" if they'd had the trauma that brought about that radiological appearance and the disc protrusion?---It seems unlikely. And it would also be unlikely, although not unusual, but would be unlikely that they would be able within eight days to go back to a job which involved extremely heavy lifting, loading heavy bags, 30 to 50 a day, onto a truck. Using heavy sandblasting equipment on a regular basis and having done so for, as I say, commencing after a week and then done so through until 30 January, some seven weeks later and no within that span of time complaint of any problems with the back. That would be extremely unlikely, wouldn't it?--- Yes, it sounds unlikely. So that if this man had had a trauma in November 1985, had gone back to work - he had it on the 12th, he'd gone back to work on the 20th, gone back to heavy work and on 30 January 1985 he adverted to the fact that he had no symptoms or problems with his back in that intervening period, that is completely inconsistent isn't it with the sort of trauma and the sort of back condition that you saw him with when you saw him in August 1987. It's just inconsistent isn't it?---It was Ô89 that I saw him, not Ô87. I am sorry?---It seems inconsistent, yes. And, doctor, particularly if having seen a doctor for the earlier period, that is week or so he was off work, that is from 12 to 20 November 1985, I want you to assume, that he would then go and see a doctor, his regular treating doctor, on only one occasion in February 1986 through until June 1986 when he had this subsequent trauma and make no complaints to any doctor during that period of time of having any bad back. That is not consistent with what you would expect to be the ordinary pattern of events, is it?---I would've thought he'd have some complaint.

71. The defendants submitted a history and the radiographic material to Dr Korber, a specialist in radiology, who reported on 21 October as follows, Thank you for asking my opinion in this matter. If I understand the chronology correctly the patient suffered a lifting injury to his back in November 1985. After getting better the patient continued to load heavy bags until ceasing employment in early 1986. In June 1986 there was a fall. I have viewed several reports of lumbar spine x-rays, the first dated 13.11.85 which presumably related to the lifting injury. This was reported as showing a narrow L5/6 disc but no other abnormality. A second x-ray report date 6.6.86 mentions an avulsion fracture of the upper anterior margin of the L4 vertebral body with a slight decrease in the vertical height. As this is not mentioned in the previous examination, one must presume that the fracture had occurred after November 1985. A follow up x-ray report on the 28.8.86 comments on well marked callus formation. Callus formation is extra bone that occurs as a result of the healing process in fractured bones. As this is not mentioned on the previous report of the 6.6.86 it [is] reasonable therefore to presume that the fracture was recent on the 6.6.86. IMPRESSION:
From the reports available it must be presumed that the L4 vertebral body fracture is recent in June 1986. It would be unreasonable to presume that a lifting injury would bring less force to bear than a fall from a roof, particularly as a fracture was sustained. There is no way that a patient can sustain a crush fracture which is what is implied by "reduced vertical height"(report 6.6.86) by lifting unless there were a cancer in that particular vertebral body. This would have declared itself by now.

72. Dr Korber gave evidence and was cross-examined by telephone. He adhered to the opinion expressed in his report.

73. Dr Vance, orthopaedic surgeon, examined the plaintiff for the defendant on 24 February 1992 and was supplied with further information resulting in a further report from him dated 21 July 1992. He was not cross-examined.

74. In the history that he took for the purposes of his first report, there was no mention of the fall in June 1986. Naturally, he formed the view that the plaintiff sustained disc damage in the lifting incident.

75. On receipt of the further information, he confirmed that he had been given no indication by the plaintiff that he had sustained a fall in June 1986.

76. He amended his former opinion as follows, Mr Russell sustained an injury to his lower lumbar spine on 8.11.85 when he attempted to lift a heavy air compressor. On the evidence now available it would seem unlikely that this incident caused major disc pathology in view of his activities over the subsequent six months. When he fell from a roof in Blacktown he undoubtedly sustained significant damage to his lumbar spine including evidence of bone damage and probably associated disc damage at the same time as suggested by Dr Robson. The contribution that the December, 1987 motor vehicle accident made to his low back pathology is not clear but was probably not a major one. The operations performed on his groins do not bear any direct relationship to his various back injuries.

77. I agree with that summary.

78. The plaintiff was also examined by Dr Andrea, consultant surgeon, on 21 July 1993 and 29 November 1995.

79. In the history that he took on the first occasion, he recorded that the plaintiff, after the lifting accident, saw Dr Shihoff, ...who took x-rays which are said to have shown a crushed disc at the L5 level of his spine.

80. He did not see the 1985 x-ray, which the plaintiff told him was kept under lock and key by his solicitor. His opinion in the report of 22 July 1993 was as follows, These facts would seem to indicate that Mr Russell did not suffer any significant permanent damage to his back when he lifted the compressor. He left work as a sandblaster and was then unemployed. However, he seemed to be fit enough to be dismantling a shed when he fell in June 1986. There is considerable variation in just how far he fell but he must have had quite a severe fall to crush a vertebra. I think that this fall is likely to be the main factor in his subsequent problems which were aggravated by a car accident. The situation is rather confused by his meralgia paraesthetica which is a classical condition caused by pressure on a nerve by fascia in the region of the upper groin. I note in a letter dated 4th November 1986 that Dr Bookless was consulted in Toowoomba concerning this condition. In the letter, the history was that the meralgia paraesthetica had been present for five weeks at that time, so it is very difficult to associate it at all with lifting the compressor. I do not believe that his meralgia paraesthetica has anything to do with his various accidents. All in all, I think, it is likely that Mr Russell suffered a minor ligamentous strain in his back in November 1985, and Mr Russell admitted that the pain disappeared. There does not seem to be any real evidence that he suffered significant, permanent damage by lifting the compressor on the 8th November 1985.

81. When he examined him on 29 November 1995, he had the benefit of Dr Shihoff's clinical notes. He went over the history again with the plaintiff. He commented, There seems to be a lot of confusion concerning Mr Russell's history and there are certain contradictions.

82. As he understood the history, the plaintiff, ...returned to heavy work after about two weeks but his back continued to deteriorate and he had to cease heavy work after six months.

83. I am satisfied on the evidence that such a description of the plaintiff's condition is not accurate. He expressed the following opinion in his report dated 30 November 1995, In my opinion, Mr Russell suffered an acute back strain when lifting the compressor and it did not fully recover because of continuing heavy work. He suffered added damage by the subsequent accidents ending in the operation by Dr Robson. I note that Dr Robson's operation report on the 12th June 1990 mentions that the L5/S1 disc was bulging and terribly soft but no mention was made of prolapse. This seems to indicate that no single traumatic event had produced major damage to the disc. With regard to Mr Russell's prognosis, I think he will never be able to resume heavy physical activity, mainly because of his lower back. His neck is likely to recover sufficiently to allow him to perform heavy work but I doubt that his lower back ever will. With regard to the degree of blame attached to the lifting incident, I would tentatively guess at fifty percent blame for his present condition.

84. He was given further, more accurate, information.

85. On 29 August 1996, he reported to the defendant's solicitors as follows, I have been furnished with further information concerning Mr Russell's injuries and I wish to alter my opinions as stated in my report dated 30th November 1995. His history is somewhat confusing because of the multiple accidents and operations. I had to depend greatly on what he told me. The following additional information is significant: 1. In a statement dated 13th February 1986 Mr Russell clearly states that "Since returning to work on the 20th November 1985 I have not suffered any back problem". 2. In a letter from Adrian Rumore to Dr Shihoff dated 20th November 1985 Mr Rumour states "Following three treatments full resolution of all signs and symptoms was noted". 3. In a report from Dr Chandran on 16th January 1988 Mr Russell is said to have stated that the fall from the roof in 1986 was from a height of twenty feet and he had suffered a fracture of the body of the fourth lumbar vertebra. Because of the above information made available to me I wish to alter my opinion as expressed in the last paragraph of my report dated 30th November 1995. I now consider that it is likely that Mr Russell fully recovered from the accident on the 8th November 1985 and his subsequent disabilities are due to later accidents, particularly the fall from the roof.

86. Dr Andrea was not cross-examined.

87. Counsel for the defendant highlighted the plaintiff's well timed reticence about the fall when giving his history to Dr Vance, and made many other forceful criticisms about his credit. They are not unjustified. There are, for example, significant variations in the history given to Dr Andrea.

88. I do not think it is necessary, however, to decide the issue on that basis alone, or even mainly.

89. On the basis of the medical evidence, I think that the overwhelming probability is that the plaintiff did not damage the disc in the lifting incident which is the subject of this action.

90. I think that in that incident he suffered soft tissue injury, from which he had largely recovered by the end of January 1986, though there were occasional exacerbations by episodes of heavy lifting.

91. The injury did not necessitate his retirement from work and the effects of the incident were practically spent by the time of the fall in the following June.

92. There is no useful purpose to be served in those circumstances by my attempting to disentangle the effects of the fall from those of the motor car accident. Whatever the causes and whatever the extent of his disabilities, this present defendant is not liable in damages for them.

93. For the pain and suffering that did result from the lifting incident, interest on it, and such expenses and loss of income as resulted, I think that a lump sum of $7,000.00 is adequate, if not generous.

94. I will hear counsels' submissions on costs.