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CITE

Unreported Judgment

Morris v D J Matheson Pty Ltd[2004] QDC 406McGill DCJ
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Morris v D J Matheson Pty Ltd[2004] QDC 406

DISTRICT COURT OF QUEENSLAND

CITATION:	Morris v D J Matheson Pty Ltd & Anor [2004] QDC 406
PARTIES:	DAVID CHARLES MORRIS Plaintiff v D J MATHESON PTY LTD Defendant DAVID CHARLES MORRIS Plaintiff v WARREN THATCHER Defendant
FILE NO/S:	D122/1999, D44/2000 Maryborough D2520/2003, D2522/2003 Brisbane
DIVISION:
PROCEEDING:	Trial
ORIGINATING COURT:	District Court, Maryborough
DELIVERED ON:	1 October 2004
DELIVERED AT:	Brisbane
HEARING DATE:	24, 25 July; 26 September; 19 November 2003
JUDGE:	McGill DCJ
ORDER:	Judgment that the defendant D J Matheson Pty Ltd pay the plaintiff $64,198. Judgment that the defendant Warren Thatcher pay the plaintiff $169,689.
CATCHWORDS:	EMPLOYMENT LAW – Injury of employee – Liability of employer – whether plaintiff suffered real injuries – consideration of medical evidence – damages assessed.
COUNSEL:	J R Webb for the plaintiff J S Miles and A S Mellick for the defendants
SOLICITORS:	Suthers Lawyers for the plaintiff Bell Dixon Butler for the defendants.

[1]
These actions arose out of two separate incidents from which the plaintiff claims to have suffered injury in the course of his employment as a result of the negligence of his employer, in each case a different employer. Both incidents are alleged to have caused injury, or an aggravation of a pre-existing injury, to the right leg of the plaintiff. Initially in both actions liability and quantum were in issue. After I viewed the site of the first incident however, it appeared to me obvious that there had been failure on the part of the employer to provide a safe means of access to the workplace, and ultimately counsel for the defendants conceded that: p.50. In the action against D J Matheson Pty Ltd, which arises from what I shall refer to as the first incident, negligence was then not disputed although causation and quantum remained in issue: p.67. In the action against Thatcher, concerning what I shall refer to as the second incident, liability and quantum remained in issue. The first incident was on 14 November 1996; the second on 21 April 1997.

Background

[2]
In order to understand the significance of these incidents, and the various parties’ allegations in relation to them, it is necessary to say something about the background of the plaintiff, and his previous history of injury to the right leg. The plaintiff was born on 2 December 1946 at Maryborough, was educated to Year 10, and since leaving school has essentially been employed as a labourer: Exhibit 20 para 1. In about 1991 in the course of his work he was felling a tree. The tree when it fell came towards him and a piece of equipment to some extent, and he tried to push it way, and in the process may have put some stress or twisting pressure on his right knee. He felt something pop there and suffered pain at the back of it. He had to rest for a time before he was able to continue to work, and consulted a GP who referred him to Dr Khursandi, an orthopaedic surgeon, who gave him some time off work. After that he returned to his work, but felt that his leg was never as strong as it had been prior to that injury: Exhibit 20 para 60(a).^[1]

[3]
In early 1994 the plaintiff while working on a sand hill fell and rolled downhill, causing severe pain near the right knee. Then in October 1994 he tripped over a piece of reinforcing rod and suffered a fall, again stirring up the right knee. He was off work for a period of about three months, and there were some further investigations undertaken.

[4]
In February 1994 the plaintiff saw a neurologist, Dr Landy, at the request of his general practitioner, to whom Dr Landy sent a letter: Exhibit 62. At that stage the plaintiff was complaining of pain which Dr Landy identified as being in the right popliteal fossa,^[2] stirred up by walking heel to toe or by trying to walk on his toes. There were no complaints to Dr Landy of numbness in the top of the foot or the lower part of the leg: p.251. The popliteal nerve in the popliteal fossa appeared a little thickened. Stimulation of the popliteal nerve and popliteal fossa to ankle appeared to cause intense pain. There was no evidence of entrapment of the nerves, but the possibility of a neuroma arose. Nerve conductivity studies were normal. Dr Landy did not at that stage suggest any further treatment or investigation.

[5]
The plaintiff was seen on 24 October 1994 by an orthopaedic surgeon, Dr Keays, on referral from his general practitioner; Dr Keays provided a report to the Workers’ Compensation Board on 1 December 1994: Exhibit 65. The report records complaints of having fallen because of the right knee giving way underneath him, and, in relation to the incident when he fell after kicking a reinforcing rod, that the knee had become swollen. On examination no abnormality was detected, and x-rays of the right knee were normal.^[3] At that stage the plaintiff was able to squat, kneel and sit on his heels. Dr Keays had ordered a CT scan and myelogram which showed evidence of lumbar spondylosis but no nerve compression.^[4] On an earlier examination there seemed to be a weakness of the right leg. The plaintiff was deemed fit to return to work as the injury appeared to have cleared up by 24 October. He did not require rehabilitation, although a strengthening program of exercises might be helpful. This suggests that, insofar as the injury in 1991 was continuing to have some effect, the aggravation to it in the second 1994 fall had settled leaving a leg which had no significant interference with function.

[6]
The plaintiff was seen by a workers’ compensation doctor, Dr Das on 8 November 1994: Exhibit 3. At that stage the plaintiff was totally incapacitated, with pain to the back of the knee and in the thigh and calf. There had been swelling in the back of the knee, and a sensation of ants crawling in the right calf area, indicating some abnormality in the performance of a nerve. He was not able to squat down properly. The report referred to occasions in September 1994 when he tripped at work aggravating the pain.

[7]
On 14 November 1994 the plaintiff saw Dr Cameron, a neurologist, at the request of the Workers’ Compensation Board, who were sent a report on 16 November 1994: Exhibit 69. The history referred to the injury in 1991.^[5] He said there had been discomfort ever since then, and the right foot had tended to drop which led to falls. There were no specific sciatic symptoms, and no back pain. He was walking with a limp favouring the right leg, and was unable to walk tandem without falling. There was what was described as vague fluctuating weakness in all muscle groups in the right leg. A CT myelogram performed on 21 October 1994 appeared normal;^[6] Dr Cameron suggested further investigations to exclude various conditions, some of which he thought were unlikely.^[7] After the receipt of the report of those investigations,^[8] Dr Cameron reported further on 19 December 1994 (Exhibit 70) that there appeared to be no obvious cause for the right leg symptoms. Dr Cameron saw the plaintiff only once, on 14 November 1994: Exhibit 71.

[8]
The plaintiff was sent by the Workers’ Compensation Board to Dr Blue for the purposes of an examination on 29 November 1994: Exhibit 58. Dr Blue noted that the plaintiff had been off work for one week after the accident in 1991, and that his right knee had never been right since then. After the fall he had ceased work and received some physiotherapy, without any improvement. He had complaints of a constant ache in the right knee, and a drop of the right foot which as a result frequently kicked things, leading to swelling and blueness. On examination no abnormality of the right knee was found, and there was no measurable wasting, and generally nothing was found of significance on examination, or in x-rays; a lumbar myelogram on 21 October 1994 (Exhibit 2) showed generalised degenerative changes but no disc prolapse or nerve root compression. Essentially, Dr Blue did not think that at that time there was anything wrong with the plaintiff.^[9]

[9]
The plaintiff also suffered at various times an injury to the left foot, an injury to the right hand, an injury where a small piece of metal from a saw bench penetrated a bone in the face, and an injury when he was knocked out when hit on the back of the head by a tree or a branch.^[10] He suffered a penetrating injury to the right eye which fortunately does not seem to have caused serious permanent damage. A long time ago he injured his back when he fell in a hole (p.90), and there was another injury to his back about ten years ago. He dislocated a finger on the left hand as a result of a fall, and at another time suffered a gash to the left hand. He recovered from all of these injuries, and apparently none of them had any lasting adverse effect on his ability to work.

The first incident

[10]
This occurred when he was required by his employer to work on the roof of a hotel in Maryborough. In order to climb onto the roof he went to an enclosed verandah, climbed out a window onto the roof above a lower portion of the building, and then attempted to climb onto the roof above the verandah.^[11] The roof outside the window was higher than the floor level of the verandah, but even so the guttering level of the higher roof onto which he was to climb was at about the level of his head. I climbed out onto the lower roof myself in the course of a view,^[12] and I certainly would not want to attempt to climb from there onto the upper roof without the assistance of a ladder or something like that. To clamber up was clearly unsafe.

[11]
The plaintiff attempted to get up by lifting himself with his hands with his left foot on an adjacent windowsill, but the guttering began to give way and he then swung his right leg to the right to hook it onto the roof: p.16. When he did this he felt pain in the right knee, but was able to roll his body onto the roof so that he did not fall. While on the roof he experienced severe pain and he sat down for a while to rest and rub the leg in an attempt to relieve the pain, which was located behind the right knee and in the lower area of the right leg. He then did what he was required to do on the roof and climbed off, protecting his right leg as much as possible, and persevered with his work for the balance of the day: Exhibit 20 para 4.

[12]
The following day he consulted a general practitioner, Dr J Forrest: p.21. The plaintiff said that he was advised to take time off work but did not do so initially, although later when the pain became more severe he did take time off work, until 27 November 1996.^[13] The pain however persisted, and the plaintiff saw an orthopaedic surgeon, Dr Van der Walt in January 1997;^[14] on or about 21 January 1997 he ceased work with the defendant Matheson: Exhibit 20 para 7, 8; Exhibit 15. This followed a downturn in the business, but the plaintiff was also having considerable difficulty in coping with the work: p.22.

[13]
Dr Van der Walt reported on 24 February 1997 (Exhibit 53) that at that stage complaints were of a nagging pain in the postro lateral aspect of the right knee, with weakness in the right lower leg and difficulty in lifting the foot properly which had led to a number of falls. He noted that the plaintiff had changed his work to truck driving which he could manage, and was keen to continue working. On examination there was tenderness over the fibular head, but no abnormality in the knee joint. While lying on his stomach external rotation produced significant pain at the fibular head. Dr Van der Walt thought that there might have been chronic dislocation of the proximal tibio fibular joint, and sought various x-rays. Those x-rays however proved to be normal and did not support that tentative view: Exhibit 54, and see Exhibit 5.

[14]
Dr Van der Walt then thought it worthwhile investigating whether there had been a neuroma formed in the popliteal nerve, and he recommended further investigation, which revealed no neuroma. A report of the MRI examination on 9 May 1997 by Dr Laing is Exhibit 26. Dr Laing could identify no cause for the plaintiff’s chronic pain, although her examination revealed generalised oedema of the soft tissues, and extensive contusion to the medial femoral condyle of the right knee, consistent with the history of injury on 21 April 1997. Dr Laing did not give oral evidence. I do not know whether this examination covered the tibio fibula joint, which is not mentioned in Exhibit 26, although various doctors have assumed it did; it was ordered to investigate a possible neuroma, not this joint. In a further report to WorkCover in May 1997 Dr Van der Walt said he was unable to give an explanation of the continuous painful symptoms behind the right knee: Exhibit 5.

[15]
Dr Van der Walt said in oral evidence that the MRI on 9 May 1997 showed a bone bruise, which is something which ordinarily clears up without any lasting adverse effect: p.210-11. It was an indication of a recent injury (p.212) which could easily have been 18 days previously: p.214. It was an indication that substantial force had been applied, probably a blow but perhaps in some other way: p.214. The bruise was on the opposite side of the knee from the plaintiff’s main complaint of pain, being on the left side of the right knee: p.225. Dr Van der Walt said that certain features of the meniscus identified by Dr Laing in the MRI were simply changes due to age: p.213.

[16]
The reference in Exhibit 53 to the plaintiff’s changing his work to a truck driver is a reference to his starting work on a casual basis with Thatchers Transport, something that happened on 4 November 1996, a couple of months prior to the time when he formally finished work with Matheson.^[15] The work with Thatchers Transport mainly involved driving trucks carrying timber, which the plaintiff found relatively easy, and he was able to cope with it despite the right leg remaining painful; it did not stir up the pain as much as his other work.

The second incident

[17]
On 21 April 1997 the plaintiff was working at the yard of Thatchers Transport where a collection of landscaping logs of different lengths were being put together for delivery: p.24. Daniel Thatcher was operating a four-wheel loader, with an arm which had two grabs rather than a bucket, suitable for lifting logs: p.25. The plaintiff and another man were working on the ground, and the plaintiff said that they were looking out logs to be moved. The plaintiff said that he was standing to the side of the loader, on what would have been the driver’s right hand side: p.26. On this occasion a particular log was picked up,^[16] and the plaintiff said that Daniel started to reverse with the loader and turn.^[17] As the log came back he shouted to the other man to move and he did, and he turned to his right (p.78) to go and was struck on the left leg. The log knocked him down, and ended up on his right leg: p.29. In the process it fractured a bone in his right ankle: p.28. The end of the log was moving faster because the loader was turning as it reversed: p.30. Previously when backing away from this pile the loader had reversed to the right. The plaintiff prepared a sketch of the incident, which is of some assistance in understanding his version: Exhibit 24. The ankle was very painful when he tried to walk, and he was taken to hospital.

[18]
It was submitted that the plaintiff had not referred to the loader’s reversing in the workers’ compensation application Exhibit 1 which he signed on 21 April 1997; but the description of the accident in that document is very brief and is not inconsistent with his account at the trial so far as it goes.^[18] A statement he made to WorkCover on 13 May 1997, Exhibit 32, also gives very little information about the circumstances of the accident, so the absence of a reference to the loader’s reversing is unsurprising. The answer given to question 49 in Exhibit 30, the notice of claim for damages under the Act signed by the plaintiff on 9 May 2000, is I think more difficult to reconcile with the plaintiff’s evidence, but it again is very brief and was apparently filled in by the solicitor, and he may well not have obtained comprehensive instructions as to the circumstances of the accident this time. The extract from the hospital records Exhibit 51 also has the expression “pulling logs”, which may suggest that the plaintiff told the hospital a version consistent with the loader’s reversing. On the whole I do not think these are reasons necessarily to reject the version given by the plaintiff.

[19]
Mr Daniel Thatcher who was driving the loader gave evidence. He agreed that on 21 April 1997 he was engaged in picking up some logs which were to be put in the back of a truck to be used for landscaping: p.174. The plaintiff was helping in this process by finding the appropriate logs, which were in piles. He conceded that when he began to grab the log the plaintiff was to his right hand side, he estimated five to six metres away: p.175. He said that the third man was some distance away: p.175. He said that as he closed the log grabs on the loader, the right hand end of the log moved toward the plaintiff, who ran forward and the log hit him: p.176. He said that the movement of the log occurred as a result of the operation of the grabs, rather than moving the loader. He said that the log hit the plaintiff in the leg and the plaintiff went over the log onto the ground; the log did not end up lying on his right leg, but was still being held by the loader: p.177. He said the log did not go anywhere near the plaintiff’s foot: p.193.

[20]
Mr Thatcher said that after the accident the plaintiff’s knee was a little bit swollen, and he put him into his utility and took him to his parents’ house from where he was picked up by the plaintiff’s wife: p.178. He claimed that during this journey the plaintiff had told him that in his experience if a log was coming for you, you ran towards it and jumped over it: p.179. He claimed that before picking up the log^[19] he told the plaintiff to move back, to “get out of here” because it was unsafe: p.179. He claimed that this occurred with the first log which they attempted to move in this way on that day: p.180.^[20]

[21]
On cross-examination Mr Thatcher conceded that he had changed his story when he spoke about the matter to a loss assessor, and on one occasion he had told the loss assessor something which he knew was not correct: p.182. He said he called out to tell the plaintiff to get out of the way: p.186. He said after he called out to him the plaintiff moved backwards, he thinks walking backwards: p.187. He said he waited for him to move out of the way. He also at one point conceded that the log was held only by the right hand pincer, not the left hand pincer: p.190. However he then corrected himself and said that the left hand one had caught the log and the right hand one had to drag it back, and as it did so it hit the plaintiff: p.190. He said that the grabs on the front of the loader were about eight foot wide: p.194.

[22]
Daniel Thatcher said that, prior to the second incident, the plaintiff “wasn’t real quick” (p.193) and had a bit of a limp: p.194. He also said that after this incident the plaintiff walked with a limp most of the time, at least when people were around but on one occasion, not long before he gave evidence, he saw him at the cattle sales where his limp seemed to get a lot better when there was no one else around: p.197-8. For reasons given below, I do not accept this either.

Liability

[23]
The other person who was present at the time of the accident did not give evidence, and it was not submitted by either party that I should draw any inference against the other as a result of his absence. There was some evidence from Dennis Thatcher suggesting that he would have been unlikely to be helpful as a witness. In these circumstances, there is a direct conflict of evidence, which I resolve by accepting the version given by the plaintiff. This is for three reasons. The fact that Mr Thatcher had given different versions in the past, including a version which in one respect at least was known to be false, gives rise to some concern about his reliability. In addition, it is difficult to see how the accident could really have happened in the way described by him; he has the log moving through only a fairly short distance, at a relatively slow speed, and the plaintiff would have had to move forward and go into the pile of logs in order to be hit. Overall it strikes me as a most implausible account.

[24]
Mr Thatcher said he told the plaintiff to get out of the way at a time when, on the account given by Mr Thatcher, the plaintiff was not in danger anyway, and the plaintiff in fact moved back, away from any possible danger. He then did something with the log which, although it would have produced some movement in the log, could not have suggested any danger to the plaintiff where he must have been by then unless and until Mr Thatcher began to reverse, which he said he did not do before the accident happened. Even on the theory that the plaintiff was running at the log in response to its coming at him, it would hardly have been coming at him at the time of the accident. The version given of the accident by Mr Thatcher simply does not make sense at all. In this analysis, I am not placing too much reliance on the estimates of distance given by Mr Thatcher, even though the plaintiff gave similar estimates; estimates of this nature are notoriously unreliable.

[25]
Thirdly, his version appears to be inconsistent with the injuries suffered by the plaintiff on this occasion. The plaintiff had bruising on the left side of the left leg, and also the left side of the right knee was injured,^[21] because the left leg was forced into it (Exhibit 28) and it did eventually emerge that there was a fracture in the right ankle: Exhibit 9. It is difficult to see how, on the version given by Mr Thatcher, the plaintiff could have suffered the injury to his right ankle. On the other hand, the injuries suffered appear to be reasonably consistent with the account given by the plaintiff. In those circumstances, I accept the account given by the plaintiff. In the light of Mr Thatcher’s statements, he was aware of the presence of the plaintiff, and in any case, he ought to have been aware of the presence of the plaintiff before manoeuvring the log in a way which would put the plaintiff in danger. I accept that as soon as the plaintiff realised the log was coming he tried to get out of the way, but was unable to do so. In my opinion whatever injuries the plaintiff suffered on this occasion were caused by the negligence of Daniel Thatcher, for which the employer is vicariously liable.^[22] I am not persuaded that the defendant has shown that there was any contributory negligence on the part of the plaintiff.

Subsequent history

[26]
When the plaintiff was taken to Maryborough Hospital on 21 April 1997 he was x-rayed but initially no fracture was detected and he was sent home: p.31. He strapped up his ankle and did some work in the yard. He started physiotherapy through the hospital on 24 April, and was initially encouraged to use the leg: Exhibit 51. He went back to work on 27 April (Exhibit 33) and worked fairly usual hours for five days. The x-ray report however raised the possibility of a longitudal fracture of the lower end of the fibula (Exhibit 9) and after a few days the plaintiff was called back to the hospital (p.32) where a further x-ray was taken of the right ankle which showed a small flake of bone had been detached from the lateral side of the talus, and a tiny fragment detached from the tip of the medial malleolus. According to the report Exhibit 9, this “may be due to a previous injury but could also be due to recent detachment of the tip of the medial ligament of the joint.”^[23] The plaintiff was put in a plaster cast for two weeks, which he said made the pain worse: p.32.

[27]
After the plaintiff was put in the cast the employer said that there was no longer work available for him. The defendant, Mr Warren Thatcher, said that he had actually decided about two weeks before the second incident that there was not going to be continuing work for the plaintiff, and had told him that he would have to be stood down: p.200. This was because the plaintiff could not drive a semi-trailer,^[24] and Mr Thatcher was moving to have semi trailers only, and he had also lost a particular contract as a result of which he had sufficient drivers for semi trailers anyway: p.201. The defendant regarded the plaintiff as a good worker, but he said that he had a limp before the second incident: p.202. It did not appear to affect his performance as a worker. The defendant conceded that he was not interested in employing the plaintiff after the accident, because he was too much of a risk: p.204.

[28]
The plaintiff has not had any real employment since then. He has carried out a couple of small fencing jobs,^[25] and has done some work with cattle, either alone or assisting Mr Byrne, the man who owns most of the cattle (the plaintiff owns a few himself).^[26] He is also able to drive a backhoe for which he has a ticket, and has done some truck driving for Mr Byrne. He does not work every day, and even on the days when he does some work it is only about an hour or so, without a break. He also does some pottering around Mr Byrne’s premises, to occupy his time, for which he is not paid: Exhibit 40. In 2001 he and his son painted his house, with the son doing the higher parts. He still found this very difficult, and would not have done it if he could have afforded to pay someone to do it. He also finds mowing the lawn very painful, and would not do it if he could afford to pay someone to do it.

[29]
On 8 July 1997 the plaintiff was seen in the orthopaedic outpatients department of the Maryborough Hospital where he was considered for an arthroscopy: Exhibit 8. An x-ray of the right knee on 18 July 1997 revealed mild narrowing of the medial knee joint compartment, with degenerative changes not marked for someone his age: Exhibit 7. An ultrasound examination of the right popliteal fossa on 21 July 1997 detected no abnormality: Exhibit 6.

[30]
The plaintiff was seen in late 1997 by Dr Watson, a rehabilitation specialist, who saw him again on 5 December 1997 and on 12 June 1998. Dr Watson was called as a witness, and I will deal with his evidence separately below. On 19 June 1998 the plaintiff was seen by a radiologist, Dr Taylor, for the purposes of a procedure proposed by Dr Watson: Exhibit 44. A needle was placed into the right tibio fibula joint and there was an injection into the joint space of one ml of one percent Xylocaine and one ml of Depo-Medrol. This was said by Dr Taylor to provide “complete relief of his pain immediately after the procedure.” Dr Taylor was not called to give evidence. The plaintiff said that full relief was obtained after half an hour; over the next day the pain slowly came back: p.37. I do not think the difference between “immediately” and half an hour is significant.

[31]
The plaintiff’s general practitioner sent the plaintiff to Dr Landy again in August 1998, and Dr Landy wrote in response on 10 August 1998: Exhibit 63. Again there was pain in the right leg with heel to toe walking and walking on his toes. There was no wasting in the right leg, pressure over the lateral aspect of the knee joint caused pain but there was no pain or tenderness over the popliteal nerve. Dr Landy did not think that there was any neurological explanation for the symptoms.

[32]
The plaintiff saw Dr Silburn, a neurologist, in 1999 on referral from his general practitioner, to whom Dr Silburn wrote on 14 May 1999: Exhibit 73. On examination Dr Silburn found wasting of the extensor digitorum brevis on the right with decreased sensation on the lateral aspects of the right leg as well as the sural nerve distribution and the top of the foot. The deep common peroneal site was normal. Dr Silburn at that stage could not identify a clear clause for his problem, and suggested a formal in-patient review at a dedicated pain clinic. He thought there was an element of an over-reactive pain response.

[33]
Dr Blue saw the plaintiff again on 26 August 1999 for the purposes of a report to WorkCover: Exhibit 59. He recorded much the same history, although he referred to the 1997 incident as an occasion when “a log was dropped on his right ankle”, which is not a particularly accurate description of the incident. Dr Blue on examination found no abnormality, but thought there was some over-presentation of symptoms and remained of the opinion that there was nothing wrong with the plaintiff. Dr Blue conceded that he did not have a record of the length of the examination the second time he saw the plaintiff, but he doubted whether it would have been as short as 18 minutes: p.230. He said that if the examination was 18 minutes, that was an adequate length of time: p.231. I suppose it does not take long not to find anything wrong with someone.

[34]
On 30 November 1999 the plaintiff first saw Dr Rosemary Forrest, for the purposes of treatment of his left shoulder which he had injured in a fall: Exhibit 29. After one session of treatment Dr Forrest was able to achieve resolution of the shoulder pain. The plaintiff returned to Dr R Forrest on 29 July 2000 for treatment of the right leg, and subsequently has seen her on a large number of occasions: Exhibit 14. Dr Forrest also gave evidence, and I will deal with her evidence separately below.

The plaintiff’s medical evidence

[35]
The plaintiff was seen by Dr R Watson, a consultant in rehabilitation medicine, in late 1997 for the purposes of a report to the plaintiff’s solicitors: Exhibit 27, dated 17 November 1997. Dr Watson referred to the history, and said that the plaintiff walked with a limp due to pain and loss of function in the right leg. On examination he was not able to squat without great discomfort, and straight leg raising on the right produced low back ache and knee pain radiating to the foot. The pain was accentuated by passive and dorsiflexion, he was tender over the upper tibiofibular joint particularly on rocking the leg, but the greatest tenderness was in the right lateral popliteal fossa. There was a tight Achilles' tendon, and hypoalgesia over the medial aspect of the foot. Dr Watson considered that there had been a highly complex clinical problem in the right knee region since 1991. He could not make a definite diagnosis, but he did not doubt that the plaintiff had genuine ongoing pain and dysfunction from the 1991 injury, which had been repeatedly aggravated by further traumatic episodes. Dr Watson thought he was totally genuine with no signs of wilful exaggeration and the physical signs present were consistent with his symptomatology although difficult to interpret: Exhibit 27. At that stage Dr Watson suggested a further examination.

[36]
Dr Watson subsequently saw the plaintiff again on 5 December 1997, and 12 June 1998, following which he submitted a further report to the plaintiff’s solicitors: Exhibit 28. He reported that the plaintiff had constant severe right knee pain acutely and severely accentuated by any twisting or jarring, and that he walked with a marked limp. He also had some persisting pain in the right ankle and the left knee. The examination produced a similar result to the earlier one, with possibly increased weakness of the dorsal flexion. Dr Watson considered that the plaintiff was totally unemployable and was likely to continue that way in the foreseeable future. He thought him unlikely ever to return to full active paid employment. He thought that but for these injuries the right knee would probably have continued reasonably stable and not adversely affected his employability; but for the second incident he would probably have been able to continue to work as a truck driver.

[37]
A further report by Dr Watson of 25 July 2003 became Exhibit 48; it was read into the record by Dr Watson on p.159. This report referred to the investigation by Dr Taylor where a local anaesthetic was injected into the joint: Exhibit 44. Dr Watson believed that the relief of pain as a result of this local anaesthetic proved that that joint had been damaged and is the site of the pain generation. It had apparently been damaged in 1991, and the injury had been aggravated by the first and second incidents. In theory it was treatable by removing the joint, but Dr Watson had never seen an example of that: p.166. Dr Watson conceded that in effect this was a theoretical comment: p.171. Dr Watson said that an injury to the tibiofibular joint would not show up on x-ray or a CAT scan until secondary osteoarthritic change developed: p.159. He noted that the report of the CAT scan in early 1997 did not mention the tibiofibular joint: p.160.

[38]
Dr Watson regarded the 1991 injury as the initiating process in the plaintiff’s chain of invalidity: p.163. But he did not think that, absent the first and second incidents, the plaintiff would probably have ended up in the same state as he is now anyway: p.163. That was possible, but not probable. Dr Watson conceded that he thought the plaintiff’s symptoms were unusual when he first saw him, but added “I also had no reasonable doubt that he had a genuine ongoing pain and dysfunction, and this is not an uncommon situation in a clinical setting. It’s not automatic that when one sees a doctor he comes up with a diagnosis. I mean, there are a lot of baffling problems that we come up against, and this man, who had had chronic pain and leg dysfunction for a long time, was one of those.” (P.165).

[39]
Dr Watson thought the pain in the back and in the leg were generally secondary to a disordered function of the right leg over a long period of time: p.166. Dr Watson thought that the tendency for the foot to drop was simply secondary to the persisting pain in the right leg: p.168. The left knee problem in itself would not interfere with employment, and the low back pain in itself was relatively minor, although it has become worse as a result of the continuing gait disturbance: p.167. Dr Watson also said that throwing his right leg up onto the gutter of the roof in the first incident would put a significant amount of strain on the tibiofibular joint. Dr Watson said that the mechanism of the second incident, where the left leg was struck by the log, would have produced an acute lateral force in the right knee which would have put a great strain on the tibiofibular joint, and hence likely to aggravate an injury in that area: p.161.

[40]
The plaintiff saw Dr Rosemary Forrest for the first time on 13 November 1999 in connection with a left shoulder injury suffered six weeks earlier when he had a fall; he was successfully treated for this:^[27] Exhibit 29. She began to treat his right leg on 29 July 2000. She describes him as being really in trouble with his right leg, and having difficulty in doing simple things like walking up steps or down stairs or slopes. He could not turn to the right and bear weight on his right leg without collapsing. As well his right low back pain had become excruciating. She thought the toe of his right boot was worn indicative of foot drop. On examination she found wasting of the right quadriceps, an inability to flex the right hip or straighten his knee while his hip was flexed, and right foot drop. There was numbness and pain in the distribution of the sural and superficial peroneal nerves and disturbed sensation over the top of the right foot. She found some muscles in the right leg grossly shortened, which interfered with the function of the leg. There were also cramps at times in some of them.

[41]
Dr Forrest explained the various problems in the right leg by reference to the development of trigger points within the muscles close to the muscle nerve junction. I will not set out this theory in detail here; more information about it is set out in Exhibits 42 and 43 prepared by Dr Forrest. The theory is evidently controversial. Dr Forrest referred to various prominent people who worked in this field, but the various orthopaedic surgeons and neurologists called to give evidence by the defendant all either rejected the theory or said that it was unsupported by proper scientific evidence.

[42]
Dr Van der Walt said that this approach was not scientific (Exhibit 56), and that it was not evidence based (p.217) or supported by double blind studies: p.218. In his opinion the consensus of medical opinion was that treatment of this kind may help people but did not alter the eventual outcome of any condition; it was essentially treating the symptoms: p.219. Dr Blue said that there was no reliable medical evidence to support the theory (Exhibit 60) which he described as bizarre: p.59. Dr Landy said that the theory was unsupported by pathology, that is one could not actually locate the trigger points within a muscle by dissection: p.261. He thought this was a very doubtful diagnosis: p.261, and he would want to see more evidence before he was prepared to accept that there was such a thing as trigger points or that they were helpful in treating pain in muscles: p.255.

[43]
Dr Cameron described Dr Forrest’s approach as “para fringe medicine” (Exhibit 71), and said that proponents of it did not identify clearly what actually constitutes a trigger point: p.295. Dr Silburn said he had not seen scientific evidence to support this theory (p.344), and accordingly he was suspending judgment, not being adamant either way: p.348. Dr Keays accepted (Exhibit 67) that there could be such a thing as myofascial pain, indeed he claimed he had had it himself on one occasion, but rejected Dr Forrest’s approach as an explanation of it which was useful in relation to treatment: p.279-80.

[44]
Dr Keays was particularly wary about what he described as an evangelical approach of people who were proponents of these theories, who were so enthusiastic about this as to be suspicious. It did seem to me that Dr Forrest was a very enthusiastic proponent of these theories. Dr Keays said at p.284: “It’s not accepted conventional treatment but the thing is, you know, often these people hijack the whole show because they are evangelical, enthusiastic and really believe they can fix everything and I’ve been through that phase myself actually, you know, when I did arthroscopy I thought I could fix every knee with an arthroscopy and only with a bit of intelligence and experience do you realise it was a limited application. So when you’ve got a hammer all you see are nails.”

[45]
Dr Watson on the other hand was not critical of the theories of Dr Forrest, or of the existence of myofascial pain, but did not agree that that was the explanation for the principal source of pain in the plaintiff’s right leg: p.161. He did think that a lot of the other symptoms in the leg were due to myofascial problems. He regarded the theory of myofascial pain in trigger points as being part of the mainstream in the United States and Europe, but is something often overlooked in Australia because it was not widely taught: p.162.

[46]
Part of the difficulty of course is that I have not had the benefit in this trial of the evidence of any doctor specialising in the treatment of pain. It is apparent from the evidence of Dr Silburn at p.345 that this is a separate area from neurology, although some neurologists do go into it. Since pain is a common symptom of a wide range of medical conditions no doubt most doctors are familiar with treating conditions which involve pain, but the particular problem this plaintiff has (unless of course he is just making the whole thing up) is that he has apparently severe and intractable pain in his right leg for which there is no obvious physical cause. I know there are pain clinics; Dr Silburn suggested in-patient review in one of them for the plaintiff, and of course I have heard of them in other actions, although I cannot recall ever hearing a doctor who was described as a pain specialist giving evidence. Perhaps it is a small field and none of them are willing to put up with the difficulties involved in medico/legal work.

[47]
In all the circumstances, I am not prepared to accept Dr Rosemary Forrest’s explanation for the plaintiff’s continuing symptoms. I am not persuaded that the plaintiff has chronic pain caused by the development of trigger points in various muscles in the right leg, secondary to his original injury. It does not necessarily follow that I reject everything that Dr Forrest says. I should also say a little bit more about her theories as to the cause of the plaintiff’s problems, and her course of treatment of him.

[48]
Dr Forrest attributed the chronic episodic low back pain to leg length inequality of eight millimetres, which had been corrected in a heel lift, and to its recurrence now because of the plaintiff’s awkward gait overloading his lower back muscles: Exhibit 29. She was able to treat the recurrence successfully, which she said demonstrates that the pain was not caused by nerve entrapment or degeneration.

[49]
She also thought that the incident in 1991 may have led to the rupture of the plantaris muscle, which would have caused sudden sharp pain with a snap and a sense of injury in the calf, with acute pain up and down the centre of the calf: Exhibit 29.^[28] There would also have been trigger points develop in the other leg muscles at the same time. She thought the weakness in the leg was due to the existence of multiple trigger points, and damage to the peroneal nerves; she regarded the routine way of measuring nerve conductivity as too insensitive to bother with. She felt he had real nerve damage, in particular arising from the second incident. It does appear to me however that that explanation is inconsistent with the analysis of all the neurologists, and I must reject it.

[50]
Dr R Forrest described the plaintiff as having a genuine problem, and one which he tended to underplay rather than exaggerate.^[29] She described the plaintiff’s condition as fitting into the category of complex regional pain syndrome: p.153. She thought there could be psychological factors, but they would be secondary to the pain: p.154. The problem in her view was that the pain was not treated as myofascial pain in the first place, so that, because it was left untreated for so long, it has become much more difficult to treat. Dr Forrest also said that there had been some improvement in the leg since she began treating him, but he plateaued: p.150-1. She described him as a unique case. To some extent he has responded to his disability by trying harder and persevering with things he really ought not to be doing, in a way which may well be causing more problems in his leg. She noted that treatment with Tegretol had assisted in pain management, which she said tended to confirm the existence of some nerve damage. She did not think that he would ever recover completely.

[51]
Dr Forrest’s explanation for the outcome of Dr Taylor’s injection was that the pain in the joint was referred pain from the trigger points in the muscles, and that it was recognised that where there is referred pain a local anaesthetic injection in the area to which the pain is referred will cause the pain to ease or completely disappear temporarily: p.137. Dr Forrest thought that the first incident could well have stressed the popliteus muscle in the right leg; that was consistent with pain behind the right knee, and subsequent reduced stability in the right knee: p.141-2. She thought the 1991 injury and the failure of the leg properly to heal as a result of it left him more susceptible to injury since then: p.142. Dr Forrest also said that, had it not been for the first and second incidents, the plaintiff could well have been impossible to cure in respect of the 1991 accident anyway, and she would have expected him to continue to have falls anyway so there could well have been flare-ups of the condition in any event: p.145. Dr Forrest was firmly of the view that the plaintiff was not faking his symptoms: p.140. She did not think he would get back to his old self again: p.140.

[52]
The plaintiff was seen on 5 June 2003 by Professor Ivor Jones, a psychiatrist, for the purposes of a report to the plaintiff’s solicitors: Exhibit 10.^[30] Professor Jones recorded the history, generally accurately although he described the second incident as “a log fell on his right ankle and caused a chip to maleolus” which is not really adequate although it may have been taken from one of the other reports that had been provided to him. Professor Jones noted a complaint of constant dull pain which was aggravated by use, including driving, sitting for long periods, pushing and walking, particularly downhill. There was occasional swelling, and at times the plaintiff had fallen. The pain was centred over the right popliteal fossa. At the time the plaintiff was taking Tegratol, and intermittently Panadeine; a variety of anti-inflammatories had been tried. He was not taking psychoactive medication. He was not working. Professor Jones noted that there had also been recurrent abdominal pain for which no cause had been found and that that might have a psychiatric basis.

[53]
Professor Jones did not think the plaintiff was clinically depressed; his manner was forthright, with some increased restlessness and some general increased tension. There was no evidence of organic memory deficit. There was no evidence to him of exaggeration of symptoms. Professor Jones thought that there was a minor disposition to anxiety which had been augmented by the pain in the leg so that it was accompanied by significant feelings of anger leading to irritability, but he regarded these as secondary consequences of chronic pain. Professor Jones thought that the psychiatric features the plaintiff showed were secondary consequences of a physical lesion, so far undiagnosed, rather than the consequences of a psychiatric disturbance. He found no evidence of malingering or conscious augmentation of symptoms.

The defendants’ medical evidence

[54]
On 12 November 2001 the plaintiff was seen again by Dr Keays, at the request of the solicitors for the defendant, for the purposes of a report: Exhibit 66. In relation to his history, Dr Keays described him as having “extremely poor recall for details with a tendency towards significant obfuscation of past events.” I did not find that with the plaintiff when giving evidence, but it was apparent that the plaintiff did not have a high level of skill in verbal communication. It took a certain amount of perseverance at times to obtain details from the plaintiff, but that I think is consistent with the sort of person that he is, and the background he has, and I think to some extent also with a person who is suffering pain and has suffered a lot of pain, for which no one can give him a satisfactory explanation, so that he becomes somewhat frustrated.

[55]
Dr Keays noted that the various tests that had been conducted had demonstrated no significant pathology other than the crack fracture of the lateral malleolus of the right ankle. The complaints were of pain in the fibula head^[31] and the right ankle, lumbosacral backache and some pain in the left knee, with the leg at times collapsing under him. The plaintiff was unable to squat or run and his walking distance was limited, and he had difficulty with driving and pretty much any activity which required doing anything with his legs. His main problems were constant pain and stress due to nerves because he was unable to work. He was taking Panedeine Forte, and said that the treatment he received from Dr Rosemary Forrest was beneficial. He walked with an unusual gait keeping his right leg stiff. There was no wasting of the right leg but complaints of global weakness and widespread alteration of sensation. He thought the plaintiff had produced an inconsistent presentation in relation to tapping the fibula head; when the plaintiff knew he was doing it he had jumped in pain but did not react if it was done while the plaintiff was distracted. Dr Keays thought that the fracture of the right ankle had healed, and that no other significant pathology had been detected, and that he had manifestly inappropriate pain behaviour which had been a constant feature of his injuries since 1991.^[32] Dr Keays did not think there was any permanent physical impairment or loss of bodily function as a result of either of the incidents.

[56]
Dr Keays gave oral evidence in the course of which he verified a statement which became Exhibit 67. He said that if there had been an injury to the tibio fibula joint in 1991 the MRI scan in 1997 would have shown degenerative changes and possibly arthritic changes but they were not demonstrated. Further, any significant injury in April 1997 would have shown up swelling and soft tissue injury on the MRI, but the MRI showed no injury whatsoever.^[33] When the fact that Exhibit 26 showed an injury was pointed out to Dr Keays in cross-examination, he accepted it: p.268. But he would not accept that this indicated the application of substantial force. On this I prefer the evidence of Dr Van der Walt at p.214. Dr Keays said that injury to the tibio fibula joint was not common and would ordinarily require a significant twisting force. He would not place as much significance on the joint injection performed by Dr Taylor in June 1998 as the result of the MRI. He said there were no structural changes from an orthopaedic point of view to prevent him from working in those occupations for which he was qualified.

[57]
Dr Keays conceded that in the course of his examination, while the plaintiff was on the couch he took his right leg and twisted it, something he described as a McMurray test for menisci: p.270. He conceded at p.272 that when he performed this test the plaintiff complained loudly about pain, but claimed that he did the same manoeuvre later in the examination and there was no response. But that is not what he said in his report and in Exhibit 67; that was a reference to his tapping on the fibula head. Dr Keays seems to have conceded that his evidence at p.272 was incorrect at p.275, and p.276. Dr Keays said that he was not prepared to make any diagnosis which he could not verify either clinically or objectively with investigation: p.270. Dr Keays’ approach was to start at the back and work his way down, and he was unable to find any pathology: p.282. It followed that there was a negative diagnosis by a process of exclusion, which I take it is his explanation for what he described as inappropriate pain response.

[58]
Dr Silburn saw the plaintiff again on 26 February 2002 for the purposes of a report to the defendant’s solicitors: Exhibit 74. Dr Silburn’s recounting of the history has no more than the usual inaccuracies in the various medical reports I have seen in this trial.^[34] Dr Silburn found on examination no wasting of the right leg, and inconsistent sensory loss in a non-anatomical distribution. The right common peroneal nerve around the fibula head was smaller than the left. The lateral aspect of the knee joint was exquisitely tender. Dr Silburn also found on examination an absence of reaction when he deliberately touched the plaintiff’s leg at the lateral aspect of the knee joint when the plaintiff was not aware that he was doing so: Exhibit 77, and see p.361. His boots showed no difference in wearing away of the heels. Dr Silburn was unable to detect any neurological cause, and suspected that there was major abnormal illness reaction and somatisation. He was subsequently sent a long list of reports (see Exhibit 76) and on reviewing them confirmed his opinion that there was no neurological cause for the plaintiff’s complaint: Exhibit 75. Dr Silburn thought there was a major psychological component in the plaintiff’s condition: p.360.

[59]
Dr Silburn when cross-examined said at one point, in relation to examining people “If the history varies then that has a big impact on what you find clinically when you examine them.” This was to explain the apparent inconsistency between the fact that in 1999 on examination he detected wasting of the extensor digitorum brevis on the right, whereas he felt in 2002 that it was within normal limits. It sounds to me however as if he was interpreting what he found on examination to fit in with an assumption that there was nothing physically wrong with this plaintiff. He said he did not on the second occasion reproduce the finding of abnormality in the various nerve distributions referred to in Exhibit 73, because the response during the second examination was so variable: p.328.

[60]
Dr Silburn on his more recent examination detected variable weakness in the left leg or foot also: Exhibit 74. He said that that was consistent with there being nothing wrong with the left leg, and conceded that the plaintiff had not complained about anything wrong with the left leg: p.356. Hence there was variable weakness in both legs, and that showed that the right leg was also normal. I do not agree. If the plaintiff says there is nothing wrong with the left leg, there is no reason for him not to be responding as best he can to the testing of the left leg, unless of course he was just not responding generally to the testing. The other possible explanation for this of course is that Dr Silburn was too willing to find variable results on testing.

[61]
When Dr Van der Walt gave evidence a further written statement of his was tendered under s 92: Exhibit 56. Paragraph 4 of that statement was subsequently falsified by his reference to the MRI scan on 9 May 1997 (Exhibit 26) having detected a bone bruise, which in my opinion is entirely consistent with the accident on 21 April 1997. In that statement he conceded that the result of the injection undertaken by Dr Taylor on 19 June 1998 “does make one lean towards the proposition that the pain is coming from the area of the tibiofibular joint. However before one can diagnose a specific injury to the tibiofibular joint, one would need that to be confirmed by an MRI.” He said the injection could also have a placebo effect, and if there was relief for only a few hours that suggested it was a placebo effect only: para 12.^[35] But in oral evidence when he was referred to the particular local anaesthetic used, Xylocaine, he said that that was a quick acting one, which generally lasts about two hours but can last a lot longer: p.223. The plaintiff actually said that he had relief for about 24 hours: (p.37), and in those circumstances the period of relief is not inconsistent with a positive result from this test, and does not indicate a placebo effect.

[62]
Dr Van der Walt did say that his impression of the plaintiff at the time he saw him was that the plaintiff was genuine, and for that reason he tried hard to find a structural problem that he could identify: p.226. The plaintiff gave him the impression that he wanted to have his knee fixed and was frustrated because nobody could find out what it was that was wrong with it: p.227. Dr Van der Walt did not think the plaintiff suffered from referred pain, because he could not find anything wrong anywhere from which the pain could have been referred: p.220. His back had already been thoroughly investigated to see whether the pain was coming from there: p.225.

[63]
In the statement Exhibit 56 Dr Van der Walt said that if there had been an injury to the tibiofibular joint it would have been picked up on the MRI of 1997. But under cross-examination he conceded that “we are still in a learning curve of looking at MRI” and said that the MRI would certainly show gross problems: p.224. He also conceded that there were many examples of situations where conventional medicine could not find a basis for pain but a basis was found on a post-mortem examination: p.222. I understand that, in terms of evidence-based medicine, it may be appropriate to proceed on the basis that if it does not show up on an MRI it is not there, but strictly speaking an MRI which shows nothing does not exclude the possibility that there was something that was not picked up on the MRI, either because it would not be picked up on any MRI, or because it was missed on that particular examination. Accordingly I am wary about the sort of sweeping statement that Dr Van der Walt made in paragraph 13 of Exhibit 56, that there is no structural damage to the right knee which explains the plaintiff’s symptoms, and that there was no orthopaedic injury to his right knee on 24 January 1997.

[64]
Dr Blue gave oral evidence on 26 September 2003, part of which was given in a further statement which became Exhibit 60. Dr Blue was emphatic that if something did not show up on an MRI it just was not there: Exhibit 60 para 10. Dr Blue was of the opinion that an injury to the tibiofibular joint could not have occurred as a result of some indirect application of force, or in the 1996 incident, and if an injury to it had been suffered in 1991 there would have been subsequent arthritic degeneration which would have been obvious on an x-ray by now: Exhibit 60. Dr Blue regarded the MRI scan as a superior diagnostic test to the injection of a local anaesthetic performed by Dr Taylor; he thought there was a risk of a placebo effect: Exhibit 60 para 18. In Dr Blue’s experience muscle tears always get better, an experience which he related particularly to treatment of sportsmen: p.237.

[65]
Dr Blue said that an abnormal MRI can sometimes be shown to be a false positive as a result of an arthroscopy, but if the MRI is normal, then the knee is normal: p.237. It occurs to me however that, unless Dr Blue has been performing arthroscopies on knees which show as normal on an MRI, this may be just an assumption rather than something which he has demonstrated. Conversely, Dr Landy said that an MRI did not in his experience give false positive responses: p.255, p.256. On the other hand, it was possible for one to give a false negative, not in the sense that the MRI did not pick up what was there, but because as a matter of interpretation it might not be identified: p.256. He seemed reluctant to accept that an MRI might just miss the particular problem, on the basis that the “slices” could be as close together as one wanted them to be: p.256. On cross-examination, Dr Cameron admitted that he was aware of studies where conditions which were not detected in an MRI were found in post-mortem examinations: p.300-2. This included damage lying between cuts of the MRI: p.317. He conceded that no test is 100 percent perfect (p.318), which is obviously correct.

[66]
Dr Landy in Exhibit 64, a statement of further evidence tendered at the trial, said that, on the basis of the nerve conductivity studies he had carried out, there was no damage to the peroneal nerves in the right leg. In addition the absence of muscle wasting in the right leg was inconsistent with damage to the right peroneal nerve.^[36] He would exclude injury to that nerve. The peroneal nerve is the same as the medial lateral popliteal nerve: p.250.

[67]
Overall I was not particularly impressed by Dr Landy. He seemed to me to be dogmatic and combative in his oral evidence. At times he was reluctant to give direct answers to questions in cross-examination; there are two examples on p.252. He also spoke of “evidence based medicine” which may well be a sensible approach to the practice of medicine,^[37] but is not necessarily very helpful in view of the issues that I have to decide. He said for example that nerve conductivity studies should detect some damage to a particular nerve [emphasis added], and therefore, if they did not, the damage was not there. But if the word “should” was used correctly, the existence of some damage is logically not excluded by the absence of detection. It may be good medical practice to proceed on the basis that there is no damage there if it is not detected, but that is really a different issue. At p.258 he said that an MRI performed within a month of an incident should pick up any damage present, and if a later MRI showed degenerative changes not present on the earlier MRI, that showed that they were not attributable to that injury. But degenerative changes necessarily take some time to develop, years rather than a matter of weeks, and this is really another way of saying that if an injury does not show up on an MRI, it will not produce degenerative changes. That is the same sort of dogmatic approach adopted by Dr Blue, and again I find it entirely unpersuasive. Overall I did not find Dr Landy’s evidence of much assistance. I note however that he did not give evidence that the plaintiff was not genuine in his complaints of pain; his position was and remained that there was simply no neurological cause for his symptoms: Exhibit 63. I think however all that really means is that Dr Landy did not identify any neurological cause for the symptoms.

[68]
Dr Cameron verified a statement of further evidence which was tendered under s 92 and became Exhibit 71. That stated that there was no evidence of nerve damage on clinical grounds. He thought that the nerve conductivity studies undertaken by Dr Landy reflected a healthy perineal nerve. Like the other doctors, he asserted that if there had been an injury of any significance at all on 21 April 1997 the MRI performed on 9 May 1997 would have demonstrated it. He did not regard the outcome of the tests by Dr Taylor as proof positive of damage to the tibio fibula joint. That could only be proved conclusively by a double blind test, to exclude a placebo effect.^[38]

[69]
Dr Cameron also conceded that when he examined Mr Morris he thought that his complaints were genuine: p.302. The odd gait that he had would have been one way of protecting the leg if bending the knee was painful: p.303. Dr Cameron was not able to come up with a neurological explanation, but thought in the light of the various reports he had seen that there was probably a psychosomatic disturbance going on: p.309. There are of course aspects of pain which neurologists do not yet fully understand; Dr Cameron conceded that an example of this was aspects of phantom pains in amputated limbs: p.312.

Other evidence

[70]
On 19 November 2003 two pairs of boots were put in evidence on behalf of the plaintiff. Exhibit 81 was the pair of boots said by the plaintiff to have been worn when he saw Dr Silburn on 26 February 2002: p.365. They were black elastic-sided boots, dress boots, which do not show to my eye any dramatic difference in the amount of wear. There is perhaps a little more wear at the back of the left heel, which at one point is worn down to the heel guard, and the front face of the left heel seems more worn than the front face of the right heel, except perhaps for the outside corner. The toe end of the sole of the right boot is a good deal more worn than the corresponding position on the left boot, which would I think be consistent with some persistent drop of the right foot. Dr Cameron referred to there being a bit more wear on the inner aspect of the left foot, which does seem to be correct, although it strikes me as fairly minor: p.303. The right boot shows some sign of repair to the outside of the base of the right heel, as indeed does the area around the toe of the left boot, where it looks as thought part of the sole might have come away and been glued on again.

[71]
Exhibit 82 is an old pair of work boots produced by the plaintiff at the same time, and not seen by the doctors: p.365. This shows more wear underneath the left boot than the right, both to the sole and to the heel, where the heel is particularly worn on the inside and towards the rear of the left boot. The very front of the sole of the right boot seems slightly more rounded than the left boot, and there is perhaps a little more wear generally in that vicinity, perhaps consistent with some drop of the right foot, although it is more difficult to see than with Exhibit 81. Looked at from the side, the inner aspect of the heel of the left boot is considerably more worn than the inner aspect of the heel of the right boot. I of course do not claim any expertise in the interpretation of such matters, and am cautious about attributing too much significance to them, but it seems to me that, insofar as the boots indicate anything, they tend to support the plaintiff rather than the contrary.

[72]
There are two other matters that I should mention, in relation to the assessment of the plaintiff. Mrs Byrne, who was the wife of a friend of the plaintiff’s, said she had seen a bit of the plaintiff over many years, and had noticed a great change in his ability to move around and the way he walked since the time when she heard about the incident with the log in April 1997: p.127. She has seen him fall, including out in the paddock. She has seen behaviour which indicated to her that he was suffering pain. Her impression was that the condition was getting worse: p.129. She was not constantly watching him when he was doing things on her husband’s property, but she could see him from time to time. Mrs Byrne did strike me as genuine and there is no reason not to accept her evidence.

[73]
The other consideration is that my own impression of the plaintiff in the witness box was that he was genuine. He did not strike me as someone who was calculating in his answers, or trying to say only things that were helpful to him and put his case in the best possible light. He showed some indication of pain while he was in the witness box, sometimes standing up and at other times looking uncomfortable but not standing up. He also maintained this after he left the witness box, unlike some plaintiffs who bob up and down in the witness box, then sit still all day at the bar table once their evidence is finished. If anything he gave more indications of pain when he was not in the witness box. I do not attribute too much significance to this factor of course, but so far as the plaintiff’s demeanour is a consideration it is one that works in his favour.

Analysis - liability

[74]
It was submitted on behalf of the defendant that I should not accept that the first incident occurred. Dr J Forrest’s brief note of 15 November 1996 makes no reference to it, but in the absence of evidence from Dr Forrest that he would have recorded an incident the previous day if he had been told about it, I am not prepared to draw any conclusion from that very brief note. There is also no reference to the first incident in the report of Dr Van der Walt Exhibit 53, and in Exhibit 56 Dr Van der Walt did say that there was no reference to the first incident, but I do not know whether he attempted to take any further history after the 1991 incident. The report in relation to the history mentions nothing since the injury in 1991, and on any view of the matter a lot had happened to the plaintiff since then. There is little in the way of history in Exhibit 53, the doctor going on to a discussion of the other investigations, and then the present complaints.

[75]
The plaintiff said he was working with a particular employee of the defendant company at the time of the first incident (p.11) and that employee was not called to contradict the proposition that something happened to the plaintiff, even though on the plaintiff’s account he must have been aware of it because, apart from anything else, the plaintiff would have taken a very long time to get into the appropriate position on the roof, and afterwards he would not have been walking properly. He said he told that employee what had happened: p.19. On the whole I am prepared to accept the plaintiff’s evidence that the first incident did happen in the way he described, and that it caused an acute flare-up of the longstanding problem that he had in the right leg. I will deal with the question of just what effect that had later.

Analysis - quantum

[76]
With regard to the assessment of the medical evidence, I accept that law like medicine is evidence based, but there is an important difference between my approach to the issues and the approach of a doctor, particularly a doctor to whom the plaintiff has been sent for the purpose of treatment. For the purposes of an action in tort, the question is whether the plaintiff has suffered damage, which in the context of this action means personal injury. But it is not really essential for me to be able to put a particular label on the injury suffered, for me to be able to put the injury into a particular diagnostic pigeonhole. What matters is whether there is a real injury, as distinct from something that the plaintiff is just inventing, and what the consequences of that injury are to the plaintiff, both in the past and so far as it can be forecast in the future. It also really would not matter very much if the plaintiff had a somatic condition secondary to a physical injury, if it was producing the same subjective effect from the point of view of the plaintiff and if it was going to be just as disabling and just as intractable as an unidentified physical condition. The crucial issue really is whether the plaintiff has something genuinely wrong with him, or whether his complaints are essentially invented, whether he is making it all up. If he has something genuinely wrong with him, what matters is its effect on him, and the prognosis for the future.

[77]
The other consideration is that I resolve disputed issues of fact on the balance of probabilities. It is not a question of whether I can be sufficiently confident that a particular condition exists that I might for example be called upon to operate on a patient, or otherwise treat a patient on the basis of the proposition that that is the condition from which he is suffering.

[78]
There is in this case some evidence that the plaintiff is not genuine in his complaints, particularly the evidence of Dr Keays and Dr Silburn that there were inconsistent results on testing in relation to the sensitivity of the plaintiff to touch on the outside of the right knee. These are disconcerting, but it did seem that these issues only arose at a time when the plaintiff was being examined by these doctors for the purposes of a report to the defendants’ solicitors, and in circumstances where for other reasons I am concerned about just how objective these examinations were, particularly in the case of Dr Silburn. Although Dr Silburn had mentioned inappropriate pain behaviour in 1999, the only other occasion where it seems to me there was any concern expressed about the genuineness of the plaintiff was from Dr Blue. Dr Van der Walt conceded that he thought the plaintiff was genuine when he saw him.

[79]
Dr Silburn also said in Exhibit 74 that the plaintiff said he was unable to move his foot properly and demonstrated this by dorsi flexing and plantar flexing his right foot. Dr Silburn referred to this as a very old trick in neurology, asking someone to show you what they can’t do: p.338. He maintained that the plaintiff demonstrated this with his right foot, although the plaintiff when he was recalled said that he had used his left foot to demonstrate this: p.366. The plaintiff was quite definite in this evidence, but on the other hand this is not something which in the circumstances I would have expected Dr Silburn to get wrong. On my assessment of course it is not that the plaintiff has any physical impediment to the movement of his foot; it is just that, because of the pain in his leg and the consequential artificial way in which he uses it, there is some interference with the function of the leg, including in this respect. In those circumstances it would be unsurprising if the plaintiff while sitting on an examination couch could demonstrate a greater range of movement in the right ankle than he would in practice display while walking. I suspect that the most likely explanation is that the plaintiff did demonstrate with his right foot, but when he subsequently saw or was told of the report believed that he could not have done so, and as a result that he must have demonstrated with his left foot. I accept that this incident is worrying, and take it into account. I also think however that this throws some light on the approach of Dr Silburn by the time of the report in 2002, Exhibit 74. It seems to me that by that time he was to some extent acting as a partisan witness for the defendant rather than an entirely objective expert.

[80]
As I have already indicated it did seem to me that there were other aspects of the evidence of some of the doctors called on behalf of the defendants which were unsatisfactory, and suggested that some of them were not being entirely objective. I was particularly concerned about the proposition, which found its way into a number of the statements of further evidence which were prepared in consultation with the defendants’ counsel, that the MRI on 9 May 1997 showed no injury of significance on 21 April 1997, when of course it did. It was only Dr Van der Walt who spontaneously corrected this error.

[81]
It also seemed to me that the attitude of some of the doctors to the MRI as conclusive evidence of the absence of a problem in the tibio fibula joint was dogmatic and unpersuasive. Obviously the MRI might fail to pick something up, particularly in circumstances where it was ordered to investigate the presence of a neuroma, rather than specifically to investigate the tibio fibula joint, which is not mentioned in the report. On the other hand, the report of Dr Taylor was quite specific that the injection of the local anaesthetic was actually into that joint. On the whole, there is I think much that is unsatisfactory about the defendants’ medical evidence.

[82]
There is also the consideration that, if this is essentially a fraudulent claim, that is, the plaintiff is just making it up, it is a remarkably unlikely fraud. It must have its origins in 1991, because the plaintiff’s complaints have essentially been the same since then, only progressively worsening. Yet, despite the extensive investigations in 1994, nothing was done by the plaintiff at that stage to try to exploit this fraud; rather he went back to work. The whole history of the matter just does not make sense to me as a false claim.

[83]
There is another significant consideration; this is a plaintiff who has persisted in working, even in circumstances where he probably should not be doing so.^[39] This is someone who, after an accident in which he undoubtedly suffered some injury to the right leg including an indisputable chip fracture to the right ankle (which neither he nor the doctors realised he had at that stage, but would have been no less painful for that) straps up his ankle and goes out that day and lays a concrete mowing strip along a fence line. Six days later he goes back to work. It also occurs to me that if the plaintiff was going to be making a false claim, it would have been much easier for him to say that he had suffered since the second incident severe and disabling pain in his right ankle.^[40] At least there was an injury demonstrated by x-ray in the right ankle; even Dr Blue would have to concede that there was some genuine injury at some stage to the right ankle. The plaintiff instead attributes his problems in the right leg particularly to the continuing worsening effects of the long term injury which had its origin in 1991: p.85.

[84]
Dr Watson, Professor Jones, and Dr R Forrest all thought the plaintiff was genuine, and the fact that Dr J Forrest kept sending him off to different orthopaedic surgeons and neurologists to try to find a physical explanation for his condition suggests that he also thought that the plaintiff was genuine. Dr Van der Walt originally thought he was genuine. Although there are considerations both ways, on the whole I am satisfied on the balance of probabilities that the plaintiff has a genuinely very painful right leg. This condition, whatever it is, is genuine. I am not persuaded that the plaintiff is inventing his accounts of his symptoms and complaints. In general, I accept the plaintiff’s evidence.

[85]
The next question is whether it is essentially a physical condition or essentially a somatisation disorder. Professor Jones is a person whose specialty is particularly concerned with the question of whether the plaintiff has a genuine complaint or a somatisation disorder, and he rejected the latter explanation, and I accept that evidence. I should say that there was an objection taken to the relevance of Exhibit 10 when it was tendered: p.6. But plainly it is relevant for that purpose and I overrule the objection and admit the evidence. It is also apparent from a letter of 10 July 1997 which is part of Exhibit 51 on the records of the Maryborough Hospital that the plaintiff was well-known to that hospital as someone with longstanding orthopaedic trouble. If the hospital doctors had thought that there might be a somatisation problem rather than a physical injury, presumably he would have been referred for psychiatric examination through the hospital system. But although the records were subpoenaed and made available to both parties, there was no suggestion of that during the trial.

[86]
In my opinion the weight of the evidence as a whole favours a conclusion on the balance of probabilities that the plaintiff does have some physical condition in the right leg, which has not been identified, and which has led to chronic and disabling pain, which is real. Particularly in the light of Professor Jones’ evidence, I think that real physical injury is the more likely explanation of the plaintiff’s condition. The absence of wasting in the leg muscles is explained by the fact that the muscles are not doing nothing, they are working hard guarding the leg and trying to reduce movement in the joint.

[87]
I think the most likely explanation is that there is a problem in or associated with the right tibio fibula joint which is intractable and which has been aggravated from time to time by the various subsequent injuries, but which was originally suffered in 1991. I accept Dr Watson’s evidence that the manoeuvre the plaintiff says he was doing during the first incident would have put a strain on that joint, and that the first incident stirred up that injury and made it more painful and more disabling. In the second incident the indirect blow to the left side of the right knee would have also had the effect of stressing that joint, and that would have stirred up the injury further. I find as a result the plaintiff has developed a chronic pain condition in the right leg which has perhaps to some extent taken on a life of its own, both because of the persistence and the severity of the condition and because of the plaintiff’s various attempts to deal with it.^[41] I think that this is the real explanation for any variability or inconsistency in the recent examinations, although it may well be that the anger and frustration referred to by Professor Jones in his report has contributed to a situation where the plaintiff is understandably not trying as hard to cooperate when being subjected to medical examinations as he used to. Essentially, I am accepting the explanation for the plaintiff’s condition given by Dr Watson.

[88]
My conclusion from the whole of the evidence is that what has happened here is that the plaintiff suffered an injury in 1991, which left him with some chronic pain and some disability in the right leg, essentially secondary to the pain. This led to an increased tendency to fall, in someone who seems to have been fairly accident prone anyway, which led to some aggravation of the condition in 1994 as a result of which he was unable to work for a time and the matter was investigated but without any satisfactory conclusion being reached. Ultimately the plaintiff just went back to work, and was generally able to cope with work until the first incident, which stirred up the injury and the pain and hence the disability.^[42] The second incident stirred it up even more, and I accept Dr Watson’s evidence that after that incident the plaintiff was effectively commercially unemployable.^[43] Given his field, I think his evidence carries particular weight in relation to the effect of the plaintiff’s condition on his ability to work, and the absence of any useful form of rehabilitation. I accept also that the plaintiff, for reasons discussed by Professor Jones, is keen to persist in some form of physical activity, and hence does do some things, but they are things which he can cope with essentially because he can work as and when he feels up to it, and do not indicate that he has any real residual working capacity.

[89]
In relation to prognosis, it does seem clear that the plaintiff’s problems are permanent. He is obviously not going to be cured (or helped) by an orthopaedic surgeon or a neurologist, or for that matter a psychiatrist. I strongly suspect that it would be helpful for him to see a pain management specialist, but in the absence of evidence I cannot assume that that would lead to any particular result for him. On the evidence before me, the plaintiff’s condition is intractable.

[90]
When assessing the consequences of these injuries however I think it is important to bear in mind that they are essentially aggravations of a pre-existing problem. Although Dr Watson did not think that the plaintiff would necessarily come to the same condition anyway had these incidents not occurred, there would have to be some significant risk of that, particularly bearing in mind that the plaintiff had a propensity for falling anyway because of the condition, and seems to have had something of a propensity of having accidents as well. I think that it is appropriate to approach the assessment of damages on the basis that, even if these incidents had not occurred, there was a substantial risk that other things would have occurred which would have aggravated the condition of the leg anyway to some extent, possibly even to the same extent, at some time, and an appropriate discount should be allowed. This is obviously not something which is capable of calculation.

Assessment

[91]
The plaintiff was born on 2 December 1946 (Exhibit 20) and is therefore now 57 years of age. More details of the effects on the plaintiff of the injures and the consequences of them are set out in Exhibit 20; essentially I accept his account in that document of those matter. I accept the plaintiff has suffered and is suffering a good deal of pain in the right leg,^[44] but I am conscious of the fact that I am only compensating him for the aggravations of his condition in that leg associated with each of these incidents (and, in the case of the second incident, for the other injuries suffered in those incidents: the fracture to the right ankle and the tendon injury there, and the bruising to the legs). I also think the second incident produced a more severe aggravation of the plaintiff’s condition than the first incident.

[92]
I should say something about the inter-relationship of the two incidents for the purposes of assessing damages. The approach is that set out in Nilon v Bezzina [1988] 2 Qd R 420. I am not persuaded that this is a case where the second incident was a supervening happening which prevented further damage occurring as a result of the first incident; rather it is one which made more serious the damage suffered in the first incident. Hence I am concerned with assessing damages for the first incident in terms of how much worse the plaintiff was made by that incident, and for the second incident in terms of how much worse, over and above the aggravation of the first incident, the plaintiff was made by the second incident. On the view I take of liability that may not be a matter of great importance but in case a different view is taken elsewhere I will assess the damages separately in each action on this basis.

[93]
Essentially I think the first incident turned a leg which had had some persistent pain and some interference in function, so that the plaintiff limped and would fall over from time to time, into a leg which was significantly more painful and which, as a consequence of the increased pain, suffered a further loss of function. The condition relevantly is permanent. Bearing in mind the matters referred to, I assess damages for pain and suffering and loss of amenities in relation to the first incident at $16,000, of which I attribute $8,000 to the past. That will carry interest at two percent per annum for 7.8 years, $1,248. With regard to the second incident, I assess damages at $24,000 of which I attribute $12,000 to the past, although that injury having occurred after 1 February 1997, interest on the past component would appear to be excluded by s 318 of the WorkCover Queensland Act 1996.

Past economic loss

[94]
With regard to past economic loss, the plaintiff had worked for the defendant Matheson for many years (p.11) but apparently worked on a casual basis, being paid only for the time actually worked: p.22. It does not appear to have been particularly remunerative work; his net wage in the 1994-1995 financial year (counting a period of workers’ compensation) came to $17,505, or about $337 net per week: Exhibit 20. The following financial year, taking into account two weeks when he was receiving unemployment benefits, the net wage was $15,286, or an average of about $294 net per week. In the period from 1 July 1996 to 17 January 1997 he received $4,837 net from the defendant, and $1,265 net from unemployment benefits: Exhibit 20. This is an average of $210 net per week.^[45] Part of this time he was also earning money from Thatchers Transport, where he started on 8 November 1996, and earned a total of $5,918 net before that employment came to an end on 17 May 1997. That is an average of $219 net per week, but it includes a period when he would not have been working full time, and the figure of $311 net per week used in Exhibit 21 may be a more reasonable figure for the time when the plaintiff was working only for Thatchers Transport.

[95]
Exhibit 33 shows the plaintiff worked varying hours for Thatchers Transport, but an average of about 25 hours per week over 20 weeks, with an average of one hour’s overtime. This includes the week during which he was injured and the following two weeks, during which he worked on a total of five days, and I think it would be more realistic to take the average over the 16 weeks from week 2 to week 17. This produces an average of 26 hours per week ordinary time and one hour per week overtime, which brings the average per week up to just over $300 net.

[96]
I accept that the plaintiff would have been put off work by Matheson when he was anyway because of the shortage of work, but it does not necessarily follow that he would have been put off permanently. It is apparent from Exhibit 20 that there were periods in previous financial years when he had been laid off, and there is no reason to think that, had it not been for the aggravation of the condition in his right leg, he would not have been working again for Matheson’s from time to time in the future, unless of course he found truck driving more remunerative. The first accident did mean however that because of the aggravation of the condition of his right leg he would not have gone back to work as a surveyor’s assistant for Matheson’s even if work had become available for him again in the future, so to that extent as a result of the first incident he was dependent on being able to find lighter work than he had been doing for a long time in the past.

[97]
I accept that after the first incident he was able to work as a truck driver, but he was not able to do the sort of work that he had been doing previously, and, if he had been unable to find work as a truck driver, he would certainly have been at risk in the labour market because of the condition of his right leg. Had it not been for the second incident, or some other further aggravation of his condition in the future, the plaintiff would have been able to continue to work as a truck driver indefinitely,^[46] but would not have been able to work as a surveyor’s assistant or other equally demanding task, so he probably would have spent more time unemployed than would have been the case if he had not suffered this aggravation. On the other hand, the result of the further aggravation was that his capacity for commercial work was effectively destroyed. Accordingly the appropriate approach in my opinion is to assess damages for economic loss in respect of the period after the second incident on the basis of total loss of earning capacity, but deduct from that a global amount which will become the damages for loss of earning capacity in respect of the first incident.

[98]
It is not clear that there was actually any loss of income directly as a result of the first incident. The plaintiff said that at least in the short term he kept working, and it is apparent that the work was tapering off anyway with Matheson’s, and he was moving over to the truck driving. Exhibit 21 refers to net loss of wages from 5 to 27 November 1996, but part of this is before the date of the accident, and it is not clear that he actually lost any work during this period, and I will not allow this. Indeed I am not persuaded that there was any actual loss of income immediately consequential on the first incident, the plaintiff responding essentially by doing more, and ultimately only, truck driving work, which was as remunerative.

[99]
Effectively the plaintiff’s economic loss starts from the second incident on 21 April 1997. I think it is reasonable enough to allow a base figure of $300 net per week as at April 1997.^[47] On the basis of increases in the award wages (Exhibit 35), this would have increased by the date of the trial to about $375 per week net, and I expect by now it is realistically at least $380 net per week. The starting point therefore for past economic loss is 388 weeks at an average of $340 net per week, a total of $131,920.

[100]
That of course is only a starting point. There was net wages paid in the two weeks after the injury by the defendant of $534.65 (Exhibit 33), and the plaintiff has since been receiving some income, mostly from J J Byrne & Son for whom he does some work as mentioned earlier. I regard this as being essentially a sheltered employment, rather than commercial employment, but obviously to the extent that it is productive of remuneration, credit must be given for it. The amount earned up to the time of the trial was $5,239.35 (Exhibit 21), and I expect that that pattern would have continued to some extent and that it would be realistic to allow an updated figure of $6,000 to the date of judgment. That leaves a balance of $125,385.35. That figure however I think needs to be discounted significantly, to allow for vicissitudes of life, in particular the risk that something else might have produced an aggravation of the condition of the right leg in any event, and adversely impacted on the plaintiff’s earnings during this period.

[101]
In assessing this, I am conscious of the plaintiff’s established persistence for working despite pain, but obviously there are limits to that, and I am also taking into account Dr Watson’s evidence. Nevertheless I think that some significant deduction should be made for this, and in relation to past economic loss I will therefore allow the total sum of $80,000. Some of that however should be in the form of a global amount allowed in the first action in respect of the first injury referred to earlier. I will allow accordingly $20,000 for past economic loss in respect of the first incident, and $60,000 past economic loss in respect of the second incident.

[102]
In respect of both incidents, interest is allowed, although in respect of the action against Mr Thatcher the rate of ten percent per annum has to be used under s 318(5), which is higher than the rate I normally use for past loss in these matters, eight percent per annum. In respect of the action against Matheson therefore I will allow interest at four percent per annum for 7.8 years, a total of $6,240. In respect of Thatcher, it is necessary to bear in mind that $1,302.37 by way of weekly compensation was paid (Exhibit 11) and I will allow interest on $58,700 at five percent per annum for 7.7 years, $22,600.

Future economic loss

[103]
With regard to future economic loss, the starting point is a net loss of $380 per week. It is difficult to know just how long the plaintiff would have continued to work but for these accidents. The plaintiff had he been fit and healthy may well have continued to work well past the conventional retiring age, but there is the consideration that as time passed there was the increasing risk that something else would happen that would aggravate the condition of the leg and prevent him from working, and I suspect also with age he would become less willing to push himself anyway. I note that $380 net per week over eight years discounted at five percent comes to $131,480 (multiplier 346) but in view of the factors to which I have referred, I think that a more realistic figure would have to be much less than that. Bearing in mind all the factors to which I have referred, I think a realistic global assessment for total future economic loss is $60,000, and I will attribute $15,000 of that to the action against Matheson.

[104]
Loss of superannuation benefits was claimed, and I will in accordance with the conventional approach, allow eight percent of past economic loss in each action for loss of past superannuation benefits, and nine percent of future economic loss in each action for lost future superannuation benefits. These figures come to $1,600 and $1,350 with respect to the Matheson action, and $4,800 and $4,050 in respect of the Thatcher action. This does not carry interest as it is not an “out of pocket” loss.

Specials – Matheson action

[105]
The medical expenses and travel expenses paid by the Workers Compensation Board were apparently not controversial, and they total $2,081.89: Exhibit 12. More controversial were the claims for medical expenses set out in Exhibit 15, two visits to Dr Forrest, and the visit to Drs Van der Walt and Landy, but I accept that these were relevantly caused by the first incident and allow the total of $285.88. The plaintiff also claimed travelling costs, and there are calculations in Exhibit 20 para 63, although it is not easy to relate them to the amount claimed in relation to this action in Exhibit 21. The amounts attributable to the particular medical expenses referred to in Exhibit 15 would appear to come to $412.84; I will not make a deduction in respect of the travel expenses paid by the Workers’ Compensation Board, as presumably they were in connection with the medical expenses covered by the Board. The plaintiff also claims $6 for Panadol, and I will allow that. That gives a total special damages which I allow of $2,786.53. The out of pockets however are essentially $420, on which I will allow interest at eight percent for seven years, $275.

Specials – Thatcher action

[106]
In relation to the Thatcher action, the medical expenses and travel expenses paid by WorkCover total $565.39: Exhibit 11. With regard to other medical expenses, the starting point is the amounts identified in Exhibit 14, which apparently come to $4,706.15 for the first part of the notice, and $3,961.40 for the second part: Exhibit 20. There are however two deductions which need to be made. The first is those items which are allowable in respect of the other action under Exhibit 15, which comes to $285.88 and which I will deduct. The other is that the bulk of the expenses relate to attendances on Dr R Forrest, and in the light of my findings I cannot allow these attendances, because essentially the treatment Dr Forrest is applying is predicated upon her theories as to the cause of the pain, and having rejected those theories, it follows that the treatment is not shown to be reasonably necessary in response to the condition, and accordingly the expense incurred in relation to the treatment has not been reasonably incurred. The amounts paid to Dr R Forrest in Exhibit 14 appear to come to $3,554 in the first part, and in the second to $3,936.95, in this section everything except one claim of $24.45 to Dr J Forrest on 4 September 2002. Accordingly all I will allow is $866.27^[48] for the first part of Exhibit 14, and $24.45 for the second part, a total of $890.72.

[107]
The various past pharmacy expenses claimed in paragraph 62 seem reasonable, and I will allow this amount of $1,140.75. With regard to travelling for medical treatment, I will allow the trips to Brisbane for Dr Landy and Dr Silburn of $286 each, 13 visits to Dr J Forrest which come to $6.76 and a visit to Southern X-Ray Clinic of $2.08, a total of $580.84. There is also a claim for $2,107 in respect of a Commonwealth Rehabilitation Service refund (Exhibit 18), and I will allow that as well. That produces a total for special damages of $5,284.70. Of that amount out of pocket expenses would appear to come to $1,721.59, on which I will allow interest at four percent per annum for seven years, $482.

Future costs

[108]
With regard to future costs, there is a claim for future pharmaceuticals, although it appears to be at a greater rate than the rate the plaintiff has actually been taking. Of course it is not clear just what expenses the plaintiff will incur in this regard in the future, but they are likely to be of some significance, although they should also be discounted for the reasons referred to earlier. In all the circumstances I will allow $1,500 for future pharmaceutical costs. Future medical expenses are claimed on the basis of continuing treatment from Dr R Forrest, and for the reasons already given I will not allow that claim. There is really no evidence to suggest that any particular medical treatment would be of assistance to the plaintiff in the future. It also follows that travel for medical expenses should not be allowed. There is a claim for the replacement of wheat bags, and I will allow $120 for this, allowing for discounting.

[109]
There was also a claim for the cost of painting the house, for which a quote of $2,175.80 was obtained (Exhibit 16), from which $320 should be deducted as the cost of the paint (Exhibit 16), leaving a balance of $1,855.80. I accept that the plaintiff is no longer able to paint the house himself, and it is reasonable for this to be done every ten years, but bearing in mind the discounting I referred to earlier I will allow the sum of $1,500 for this.^[49] The plaintiff also claimed lawn mowing costs, quoted at $55 (Exhibit 17) the equivalent if this is done every three weeks on average of $12 per week, but again I think this amount needs to be discounted, and I will allow $4,000 for future mowing costs. This gives a total for future costs of $7,120, and consistently with my general approach I will apportion $1,780 to the Matheson action, and the balance of $5,340 to the Thatcher action.

[110]
On this basis the assessment of damages can be summarised in the following terms:

Matheson action:

(a)	pain and suffering and loss of amenities	$16,000.00
(b)	interest on past loss	$1,248.00
(c)	past economic loss	$20,000.00
(d)	interest on past economic loss	$6,240.00
(e)	future economic loss	$15,000.00
(f)	past loss of superannuation	$1,600.00
(g)	future loss of superannuation	$1,350.00
(h)	special damages	$2,786.53
(i)	interest on out of pocket special damages	$275.00
(j)	future costs	$1,780.00
	Total	$66,279.53
	Less WorkCover refund (Exhibit 12)	$2,081.81
	Balance	$64,197.72

Thatcher action:

(a)	pain and suffering and loss of amenities	$24,000.00
(b)	past economic loss	$60,000.00
(c)	interest on past economic loss	$22,600.00
(d)	future economic loss	$45,000.00
(e)	past loss of superannuation	$4,800.00
(f)	future loss of superannuation	$4,050.00
(g)	special damages	$5,284.70
(h)	interest on out of pocket specials	$482.00
(i)	future costs	$5,340.00
	Total	$171,556.70
	Less WorkCover refund (Exhibit 11)	$1,867.76
	Balance	$169,688.94

[111]
I therefore give judgment that the defendant D J Matheson Pty Ltd pay the plaintiff $64,198 and the defendant Warren Thatcher pay the plaintiff $169,689. I will circulate these reasons and invite submissions as to any correction of clerical errors, and as to the appropriate order for costs.

Footnotes

[1] The plaintiff had had earlier, relatively minor injuries to his right leg in 1972 and 1976: p.80-1. In my opinion they are irrelevant.

[2] This is the same place as Dr Watson found in 1997 to be the area of greatest tenderness.

[3] See Exhibit 1, 11 October 1994.

[4] Exhibit 2, 21 October 1994: this reported degenerative changes in the lower thoracic and lumbar spine, more pronounced in the thoracic.

[5] He referred to the plaintiff on this occasion feeling something give in his back; this was an error, the plaintiff told me and all the other doctors that what occurred happened at the back of his right knee, and I expect he told Dr Cameron the same.

[6] And see Exhibit 2.

[7] After receiving the report from Dr Cameron, Dr Das approved the MRI, and noted “this is an interesting case”: Exhibit 3.

[8] Exhibit 14, 9 December 1994, MRI brain and cervical spine, no abnormality detected.

[9] On 5 December 1994, after seeing the reports from Dr Blue and Dr Keays, Dr Das continued the claim pending a further report from Dr Cameron after the MRI had been undertaken, ie Exhibit 71; Exhibit 3. Presumably the claim was then terminated: on 30 December 1994 the plaintiff applied for sickness benefits: Exhibits 78,79. However, such benefits do not appear in his tax return in Exhibit 19, so presumably he just went back to work.

[10] See generally Exhibit 20 para 60.

[11] There are photographs of the premises, and the roof, in Exhibit 22.

[12] Undertaken at the request of the parties: p.10.

[13] Exhibit 20 para 5, 6. Unfortunately Dr J Forrest was not called as a witness, nor is there a report from him. Dr R Forrest, who did give evidence, did not see the plaintiff until much later. She proved (p.146) that all he recorded for the visit on 15 November 1996 was the referral to Dr Van der Walt for the “right knee popliteal fossa problem. Now most of his problems are with the fibula head and the perineal nerve, causing pain down the leg.” I do not regard that brief note as demonstrating that the plaintiff did not then tell Dr J Forrest of the first incident.

[14] The plaintiff also saw Dr Landy again on 14 February 1997: Exhibit 15. There was no other evidence about this visit, but presumably it involved further investigation of the right leg, and found nothing.

[15] Exhibit 20 para 12; Exhibit 33 for the date he started with Thatcher.

[16] But it was being held by only the right hand grab: p.55; p.113.

[17] He denied that he had only recently made up the idea that the loader was reversing: p.75.

[18] It used the expression “pulling logs” which suggests that the loader was moving, ie reversing: Exhibit 31.

[19] Indeed he said this occurred before he drove right into the log heap: p.186. The plaintiff denied that he was given any warning: p.31; p.55.

[20] That may have been inconsistent with the evidence of the defendant at p.202, but I am not confident that the defendant had an actual recollection of this.

[21] Demonstrated by the MRI Exhibit 26.

[22] In submissions counsel for the defendant conceded that if I accepted the evidence of the plaintiff negligence was shown.

[23] In Dr Watson’s opinion the x-rays of the right ankle from the Maryborough Base Hospital indicated severe ligamentous damage: Exhibit 28.

[24] The plaintiff obtained a learner’s permit for a semi-trailer, but the second incident occurred before he passed his test: p.21.

[25] See p.41.

[26] Exhibit 20 para 23, 24; p.85.

[27] The plaintiff only needed one treatment before he came good: p.156.

[28] Dr Watson did not think that there was an indication in the history of a rupture of the right plantaris muscle: p.168. Dr Keays said (p.269) that from the description of the incident the plaintiff could have “popped” his plantaris muscle, or suffered a soft tissue injury. Dr Blue thought his description suggested the involvement of the popliteal muscle: p.231. I prefer the evidence of Dr Watson on this.

[29] That was also my impression of him in the witness box.

[30] Professor Jones was on holidays at the time of the trial, and uncontactable; his report was put in evidence under s 92 of the Evidence Act, and he did not give oral evidence.

[31] Exhibit 66 actually refers to “the fibular head of the right ankle” but it is clear from paragraph 6 of Exhibit 67 that this is an error, and that there was a complaint of severe pain in the fibula head.

[32] But there was no reference to this in Exhibit 65 in 1994.

[33] This of course was false, as shown by Exhibit 26 and the evidence of Dr Van der Walt. The MRI showed extensive contusion of the medial femoral condyle, and generalised oedema of the soft tissues, both of which were said by Dr Laing to be consistent with the history of recent trauma: Exhibit 26. This statement damages the credibility of Dr Keays.

[34] Specifically he recorded the plaintiff falling over at work since the April 1997 accident, when the plaintiff has not worked since then, and the plaintiff complained about falling over at work well before then. He attributed the 1991 accident with a tree falling to November 1996. I attribute these errors to Dr Silburn rather than the plaintiff.

[35] Interestingly, Dr Keays also suspected a placebo effect, but because the relief was too long, not too short: p.281.

[36] Dr Van der Walt checked the peroneal nerve and thought it normal: p.215. Dr Keays found no damage to it: Exhibit 67. Dr Silburn thought the common peroneal nerve around the fibula head on the right was smaller than on the left: p.357. That could indicate previous trauma or compression or a whole lot of things; but the nerve conductivity studies excluded nerve damage: p.358.

[37] Dr Silburn had much the same approach: p.346.

[38] He conceded that this, although necessary for scientific proof, was not justifiable on ethical grounds: p.315. Dr Taylor would not undertake such a procedure for forensic reasons: Exhibit 80. the actual injection is painful (p.36), and I would not expect the plaintiff to undergo it anyway.

[39] See his evidence at p.42, p.91.

[40] The plaintiff instead said that now the right ankle just aches a bit, and is not a drama: p.90.

[41] For example, he said that his odd gait was one he had deliberately adopted: p.109.

[42] After the first incident the leg never got back to where it was before then: p.21.

[43] The plaintiff, despite his desire to work (p.42) feels that now he could not do a regular job: p.47.

[44] He said (p.109) that the pain in the leg was like a toothache, which is quite bad.

[45] This is consistent with the work for Matheson declining during that period.

[46] Although probably not with Thatcher, unless he obtained his semi-trailer licence, which he may well have obtained. So he would have been back in the labour market from time to time.

[47] Counsel for the defendants in submissions accepted that this figure was reasonable.

[48] $4,706.15 - $3,554 - $285.88.

[49] This and the future mowing costs appear to be recoverable: Karanfilov v Inghams Enterprises Pty Ltd [2003] QCA 242.

Editorial Notes

Published Case Name:
David Charles Morris v D J Matheson Pty Ltd & Anor
Shortened Case Name:
Morris v D J Matheson Pty Ltd
MNC:
[2004] QDC 406
Court:
QDC
Judge(s):
McGill DCJ
Date:
01 Oct 2004

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Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Karanfilov v Inghams Enterprises Pty Ltd	[2004] 2 Qd R 139; [2003] QCA 242	1 citation Jump To Cite 1 - [2003] QCA 242
Nilon v Bezzina	[1988] 2 Qd R 420; [1987] QSCFC 108	1 citation Jump To Cite 1 - [1988] 2 Qd R 420

Cases Citing List of cases on Queensland Judgments citing this Judgment

Case Name	Full Citation	Frequency
House v Anglo Coal (Callide Management) Pty Ltd	[2016] QDC 303	2 citations

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Morris v D J Matheson Pty Ltd[2004] QDC 406