Bryan v Hertz Australia Pty Ltd & Anor [1993] QSC 124

tate Reporti.n ·.Bureal~l -:£,.·--~ .... ·--------------·-_______,..__._, ______ .......,. ___ .,..._ --- 1,RANSCRIPT OF1 PROCEEDINGS (Copyright in this transcript is vested in the C1·owaz. Copie1.il ~hc~·eof must not be made mr sold V+itbout the written authority of the Directo~~ State Reporting :Bureau.) SUPREME COURT OF QUEE.NSLAND CIVIL JURISDICTION AMBROSE J No 4115 of 1988 BRUCE VICTOR BRYAN Plaintiff and HERTZ AUSTRALIA PTY LTD First Defendant and· NEIL TOWNSEND Second Defendant BRISBANE .. DATE 11/05/93 JUDGMENT 1 . 4th Floor. The I-a'W. Courts, Geor9:e Street. Brlsbtlne, 0. 4000 Telmhmu: mn 227 4.360. Facsimile: am 227 .'1.11.n -- 1 of 43 -- r __ .. 110593 kak (Ambrose J) HIS HONOUR: I give judgmerit for the plaintiff again~t both defendants in the sum of $19,575. I order that the plaintiff recover ~is~costs of the action to be taxed up to the date of • the formal offer being made on 10 June 1992, and I order that the defendants recover against the plaintiff their costs of the action to be assessed on the Supreme Court scale subsequent to 10 June 1992. I publish my reasons. JUDGMEN'r 2 10 20 (\ ' ) 30 40 50 60 -- 2 of 43 -- IN THE SUPREME COURT OF QUEENSLAND No. 4415 of 1988 Brisbane Before Mr. Justice Ambrose [Bryan v. Hertz Australia PL & Anor] BETWEEN: BRUCE VICTOR BRYAN (Plaintiff) AND: HERTZ AUSTRALIA PTY. LTD. (First Defendant) ( AND: NEIL TOWNSEND (Second Defendant) REASONS FOR JUDGMENT - B. W. AMBROSE J. Judgment delivered 11th May 1993 CATCHWORDS Liability - contributory negligence - quantum. Counsel: C. Newton for the Plaintiff. W.A. Martin for the Defendants. Solicitors: G. Hatzis & Associates for the Plaintiff. Quinlan Miller Treston for the Defendants. Hearing date: 9th February - 11th February 1993 -- 3 of 43 -- IN THE SUPREME COURT OF QUEENSLAND No. 4115 of 1988 BETWEEN: BRUCE VICTOR BRYAN (Plaintiff) AND: HERTZ AUSTRALIA PTY. LTD. (First Defendant) NEIL TOWNSEND (Second Defendant) REASONS FOR JUDGMENT- B.W. AMBROSE J. Judgment delivered 11th May 1993 On 8th November 1985 the plaintiff suffered injury to his back when a motor vehicle he was driving out of Leopard Street onto the intersection of Leopard Street and Stanley Street, South (_) Brisbane, came into collision with a motor vehicle being driven by the second defendant along Stanley Street and through that \ intersection. The plaintiff issued his writ of summons in this action on 4th November 1988, nearly three years after the collision. The collision seems not to have been investigated by any member of the Police Force and there is therefore no record of any more or less contemporaneous assertions of fact by the plaintiff and defendant concerning the part each played in bringing about the collision. -- 4 of 43 -- 2 The only version of events relating to the part played by the plaintiff and the defendant in relation to the collision, is to be found in a hand-written statement by the plaintiff to the Workers• Compensation Board dated 29th January 1986, submitted apparently to support a claim for workers 1 compensation in respect of the injury he sustained in the collision because that injury was sustained in the course of his employment. That statement, of course, was made nearly three months after the collision. It is likely however in my view that the plaintiff n I \_) would ·then have been able to better recollect what he had observed on the day of the collision than he would be able to at the date of trial more than seven years after the event. .0 : The second defendant upon trial readily conceded that he found it difficult to recollect all the events at the time of collision, having regard to the time that had passed since he observed or may have observed them. The plaintiff on the other hand a~serted that he was able to recollect relevant facts but it is clear upoh the evidence that certain of his recollections 0 are·at odds with the facts which have been proved by independent evidence. In this respect I refer to the plaintiff 1 s 0 recollection that at the intersection where the collision occurred, Stanley Street was divided into only two traffic lanes. Evidence called from the relevant Brisbane City Council officer, however, demonstrates clearly that at the material time Stanley Street had four marked traffic lanes passing through its intersection with Leopard Street. Stated briefly, it is the plaintiff 1 s claim that he brought his motor vehicle to a halt at the intersection as he proceeded -- 5 of 43 -- 3 towards it intending to go onto the South East Freeway, because as he approached the intersection he was faced with a red traffic light. He says that when the traffic light turned to green he commenced to drive onto the intersection but brought his motor vehicle to a halt when a large semi-trailer proceeded down Stanley Street onto the intersection, apparently ignoring a red light which the plaintiff assumed was facing that semi-trailer because the light facing the plaintiff was green. The (~ plaintiff's case is that he remained stationary in the position where he had brought his vehicle to a halt until the semi-trailer had passed completely through the intersection. He said that there was another vehicle stationary beside him in Leopard Street on his left-hand side, and that vehicle also remained stationary in Leopard Street until the semi-trailer had cleared the intersection. The plaintiff gave evidence that after the semi-trailer had passed through the intersection, both the driver of the vehicle beside him in Leopard Street, and he, commenced to pass across the intersection. However, he noticed the car beside him stop and he immediately brought his vehicle to a halt. c) He looked to the left to observe the defendant Is vehicle proceeding down Stanley Street "in the left-hand lane" travelling at a speed presumably which indicated that it was the intention of the driver of it to pass through the intersection, across the pathway of the plaintiff and that of the driver of the vehicle next to him. The plaintiff said that when he brought his vehicle to a stop, his bonnet was "somewhere along the centre line" of Stanley Street. He said that when he first saw the defendant's vehicle it was about 50 feet back "from the intersection". He -- 6 of 43 -- 4 estimated that it was travelling at a speed of about 80 kilometres per hour. He said he also noticed that there was a vehicle stationary at a stop line in Stanley Street and he inferred that this vehicle, on the right:....hand side of that street as vehicles travel down it towards the intersection, had stopped in obedience to a red traffic signal. The plaintiff said that in his vehicle stationary with its bonnet across the centre-line of Stanley Street, he observed that the brakes of the defendant's vehicle "obviously locked" and it started to drift sideways until it collided with the plaintiff's vehicle. He said that the right fender and ·grill area of the defendant's vehicle came into contact with the centre of the plaintiff's front wheel on the passenger side of the vehicle. The plaintiff made it clear that he did not proceed onto the inter·section from where he had come to a halt in Leopard Street until the semi-trailer had driven completely through the intersection at a time when the plaintiff was observing a green traffic signal indicating that he might enter upon the intersection from Leopard Street. He said that when the semi-trailer had cleared the intersection he had clear visibility to his left as far as he could see. The plaintiff prepared three sketches to demonstrate the position of vehicles that he gave evidence about at various stages. Those three plans are ex. 24. The third plan purports simply to show the position of the vehicles after the collision. The first.two plans however, purport to show the position of the semi-traiier which first apparently drove through a red light, and the r~lative posftfon of the plaintiff at that time. The 0 0 -- 7 of 43 -- 5 position of the defendant demonstrated on that plan was never, on the evidence, observed by the plaintiff who simply inferred that the defendant was somewhere in that position at the time the semi-trailer drove past the front of the plaintiff's stationary vehicle. The second sketch plan however does purport to be drawn from the recollection of the plaintiff. It shows the plaintiff about half way across Stanley Street and it shows the semi-trailer well past the intersection with the defendant's n motor vehicle just entering upon the intersection. The plans purport to be merely diagrammatic and not to scale. They are generally consistent with the evidence of the plaintiff that he (-) did not move onto the intersection until after the semi-trailer had passed through it and that he then observed the defendant's () motor vehicle driving onto the intersection when it was about 50 feet away from the plaintiff at a time when the bonnet of the plaintiff's vehicle was in about the middle of Stanley Street. The written statement given by the plaintiff to the Workers' Compensation Board on 29th January 1986, is to my mind in some respects fundamentally inconsistent with the evidence given by the plaintiff. It is quite a long statement and I will refer only to that part of it which seems to me inconsistent with the evidence given by the plaintiff at trial. He states inter alia: "On 8. 11 . 85 around 11.25 a. m. I was travelling from the office at New Farm for an appointment at Coorparoo when I was stationary in Leopard Street trafficlights. When the green light showed I went to move from Leopard Street to cross Stanley Street to _the Freeway when my vision was obscured by a truck in the nearest lane to Stanley Street. The truck and a BMW (unknown to me) took off to beat the red light and I waited for the truck to pass and then started to move forward and having the bottom of my·car move in frontof the pathway of the BMW. I instantly stopped but my car was hit from the left hand passenger side from the -- 8 of 43 -- front mud guard. Townsend." 6 The driver of the BMW was Neil In my view in this written statement, the plaintiff clearly asserts that his ability to observe the approach of the BMW motor vehicle was overcome or reduced by the semi-trailer proceeding down the traffic lane in Stanley Street closest to where the plaintiff was stationary. In my view the statement is consistent only with an assertion by the plaintiff that he was ignorant of the presence of the BMW because it was obscured from his vision by the presence of the semi-trailer. It was the case for the second defendant that in fact he followed a semi-trailer across the intersection of Stanley Street with Leopard Street while a green traffic signal was facing both vehicles. It is his case that in fact it was the plaintiff who must have driven through a red light facing the stationary traffic in Leopard Street and that the plaintiff's vehicle simply drove· into the front of the second defendant's vehiclej and it 0 was the plaintiff's driving which was the cause of the collision. 0 The second defendant said that there were four traffic lanes in Stanley Street at its intersection with Leopard Street. This was clearly shown to be the fact by ev-idence called from an· officer of Brisbane City Council. He said that at some distance back from the intersection, vehicles had been parked in the lane closest to the left-hand side of the road way as it proceeded towards the city. He said that he was looking for a land mark which he would recognise and from which he could find his way to . . a person whom he wished to visit on business. He knew the name . ' of the street where the office of this person was located and he knew that he had to turn off Stanley Street near a hotel, which 0 -- 9 of 43 -- 7 he was sure he could recognise, from which he would have no difficulty locating the address that he sought. He said that he was keeping an eye on the buildings and streets etc., as he was driving along Stanley Street and moved into the traffic lane furthest to the left in the direction in which he was travelling because he knew that he would have to turn to the left at some stage along Stanley Street. He said he was not really sure just where he had to make that turn when he reached the traffic lights ~ at the intersection where the collision occurred. He said that , I he was travelling at something less than 60 kilometres per hour. He said there were other vehicles in the other traffic lanes () also. He said that as he approached the intersection he was travelling in the traffic lane adjacent to that being used by the semi-trailer and that the front of his vehicle was about one and a half car lengths behind the rear of the semi-trailer. He said that as the semi-trailer went through the intersection, he accelerated when he realised that he did not have to make a left-hand turn at the lights. He said at this stage he was about level with the semi-trailer when it commenced to accelerate as ~) the road inclined downwards. He said in fact the semi-trailer was about a car length in front of him as he proceeded onto the intersection with a green light showing in his favour when suddenly the plaintiff's motor vehicle appeared on his right-hand side. The defendant said he braked and tried to avoid a collision, and that he had almost crossed the intersection when the plaintiff's vehicle came into contact with his. He insisted that the traffic lights were still showing green in his favour as he entered upon the intersection. -- 10 of 43 -- 8 A scale plan of the intersection was tendered through the Council officer who gave evidence about road markings and signal lights etc., and it is ex. 50. Examination of the plan demonstrates. that if the point of impact was where the defendant said it was, and I find that evidence acceptable, then the plaintiff would have travelled about 14 metres from the stop line in Leopard Street to the point of impact while the defendant would have. travelled about 1 2 metres from the stop line in '·. I Stanley Street to the point of impact. Q : If the semi-trailer as it accelerated through the intersection was travelling at about 70 kilometres per hour, it would have been travelling at a speed of about 19 metres per second. It would thus take the semitrailer less than one second to travel from the stop line to the point of impact. This of course would depend upon the semi-trailer not having come to a halt at the stop line across Stanley Street at the intersection. If the defendant was driving his motor vehicle at about the .same speed as the semitrailer or a little less, it would take him also about one second to travel the distance from the stop line () 0 in Stanley Street to the point of impact. I accept the evidence () of the defendant that he was travelling in a traffic lane between that in which the semi-trailer was travelling and the edge of Stanley Street, and at a distance of perhaps one and half car lengths removed from the rear of the semi-trailer. I reject the plaintiff's assertion that his vehicle remained stationary at the stop line in Leopard Street until the semi-trai~er had cbmpletely cleared the intersection. I think it more likely, and it is more consistent with the evidence of -- 11 of 43 -- 9 the second defendant concerning his pos~tion with respect to the semi-trailer as they both passed across the intersection, that in fact the plaintiff proceeded out to somewhere near the centre of the intersection when the traffic lights facing him were green and indicating that he had the right to go across the intersection but that he brought his motor vehicle to a halt somewhere towards the centre of the intersection but not protruding into the lane occupied by the semi-trailer. I think (-) the likelihood is that the plaintiff brought his vehicle to a halt well out into Stanley Street pulling up in such.a position as to allow the semi-trailer to pass without colliding with him. (~ I think the likelihood is that the plaintiff was quite unaware I ) "' . of the existence or location of the second defendant•s BMW motor vehicle because at all material times as that motor vehicle followed the semi-trailer onto the intersection, it was in fact obscured by it from the view of the plaintiff. I think it likely that the plaintiff, believing that only the semi-trailer was going through the red light; commenced to complete his crossing of the intersection as soon as the semi-trailer drove past him; then, for the first time, he observed the second defendant•s BMW travelling a short distance behind and to the left of the semi-trailer. The nature of the impact of the vehicles at the collision indicates that it was the driver•s side front of the defendant•s vehicle that came into contact with the passenger•s side corner of the plaintiff 1 s motor vehiGle. In my view the probabilities are that the semi-trailer in question, closely followed by the second defendant 1 s vehicle, did enter upon the intersection after the traffic light facing them -- 12 of 43 -- 10 turned red. I think that the probability is that the second defendant was distracted from keeping a lookout to ensure that the traffic light facing him was green before he entered upon the intersection because he was travelling in an unfamiliar area looking for a land mark at which he proposed to turn to the left from Stanley Street· and I think it probable that he simply assumed that it was safe for him to enter upon the intersection because that is what the semi-trailer he was following had done. I think the probability is that the driver of the semi-trailer n entered upon the intersection against a red traffic light. In my · view, it was clearly negligent on the part of the second defendant to enter upon that intersection against a red traffic light, and that act was a cause of the collision between his vehicle and th~ vehicle driven by the plaintiff. With respect to the plaintiff's driving, it seems to me that if the only vehicle he observed enter upon the intersection againsta red traffic light was the semi-trailer and he had no reason to believe that any'other vehicles not within his view had () 0 done so or might do so, it was not negligent for him to move out partly onto the intersection intending to cross it after the Q semi-trailer had passed. Having regard to the path that the plaintiff intended to take across the intersectio~, the semi-trailer would really have to pass almost completely across it before the plaintiff would be able to cross the traffic lane used by the semi-trailer. The question that must be answered is whether in attempting to cross the balance of the intersection as soon as the passage of the semi-trailer permitted that course to be taken, the -- 13 of 43 -- 1 1 plaintiff was guilty of negligence in not ensuring that there was not another vehicle travelling through the intersection contrary to the red light following a course that would bring it into collision with the plaintiff, if the plaintiff continued across the intersection. I think the probability is that the plaintiff was moving across the two right-hand traffic lanes in Stanley Street (in the direction in which the defendant was travelling) at a relatively /~-') slow speed so as to be able to increase speed greatly as soon as ( ' the semi-trailer had passed. I find that this is probably what the plaintiff did, and this accounts for the speed at which the (-) plaintiff appeared to the defendant to be travelling just prior (_) ( \ 0 to impact. While no doubt it is true that a driver is not absolved from keeping a careful lookout by relying upon other road users obeying traffic lights, it would not be fair or reasonable in the present case. to attribute any but a minor proportion of liabil.i ty to the plaintiff. The plaintiff had, after all, observed one vehicle stop at the stop line in Stanley Street at the intersection. He had also on my findings entered upon the intersection as the green traffic signal indicated he might, to such a position as to enable him to complete his crossing after the semi-trailer which was obviously passing through the intersection contrary to a red light signal, had passed. There is no doubt that the second defendant was driving in such proximity to the semi-trailer as to be obscured from the vision of the plaintiff. Equally the plaintiff was obscured from his vision. I find it difficult to attribute too much responsibility -- 14 of 43 -- 12 to the plaintiff even though I have come to the conclusion that had he looked to his left before he commenced to continue to cross the intersection as soon as the semi-trailer had passed, he would probably have seen the second defendant because if not stationary, he was travelling at a very slow speed and could easily have applied his brakes to avoid crossing the path of the second defendant. I have no doubt that the second defendant was travelling at a speed within the range of 60 to 70 kilometres per hour and a momentary application of brakes on the plaintiff's vehicle, which if not stationary was almost stationary when the back of the semi-trailer passed it, would I think have avoided the collision. I am persuaded that the statement given by the plaintiff to the Workers' Compensation Board within a couple of months of the incident lends support to the evidence of the second defendant that he was travelling about one and a half car lengths behind the semi-trailer before it commenced to pull away from him across the intersection and in such a position as to be obscured from the· vision of the plaintiff until the semi-trailer had just about crossed the intersection. In my view the statement of the plaintiff indicates that his vision was obstructed and that leads me to ·reject the version of the accident which he gave in evidence. I have come to the conclusion that he was guilty of contributory negligence although on the question of apportionment of responsibility in the circumstances of this case, I have seriously considered whether it is fair and reasonable to make any apportionment when one weighs the culpability of the defendant against that of the plaintiff. In this regard I refer .' n- ·-' 0 0 0 -- 15 of 43 -- 13 to the observations in Alford v. Magee (1952) 85 C.L.R. 437 at p. 461 and Elms & Anor v. Commissioner for Railways (1965) Qd.R. 471 at p. 481 per Wanstall J. I have come to the conclusion that the probability is that the plaintiff knowing that one vehicle within his vision was driving through the intersection against the red light, and that its presence in one traffic lane obscured visibility of any vehicle which might be in an adjacent lane, attempted to pass behind that vehicle as soon as it passed without taking any proper steps to see that there was no other vehicle also driving contrary to the red traffic signals, the path of which would cross the path that his vehicle would take. I apportion responsibility for the collision as to 90 per cent to the second defendant and 10 per cent to the plaintiff. The assessment of damages in this case is not without difficulty. It is common ground that at the time of his injury, the plaintiff suffered from a degenerative condition pf his lumbar spine. There is a great deal of medical evidence from both doctors who treated the plaintiff for his spine condit~on ( 1 before and after the accident, and as well experts in the \__) orthopaedic field who, after consideration of the medical history of the plaintiff have formed views as to the effect of the forces applied to the plaintiff in the course of the collision upon the progression of his degenerative back condition. On the one hand, there is medical opinion to the effect that the plaintiff probably recovered from any effect of that collision on his spine within about six months of the collision, a~d after that time his deteriorating condition was caused only by the degenerative -- 16 of 43 -- 14 processes and was uninfluenced by the trauma suffered by the plaintiff in the collision. On the other hand, the opinion has been expressed that a study of the plaintiff's medical history indicates that had it not been for the collision he may have continued to enjoy a satisfactory lifestyle without inference with his earning capacity, for anything up to 10 or 15 years before his· back condition would deteriorate to such a degree as to·require operative treatment. The medical evidence seems to be consistent that at the date of trial the plaintiff's back condition had deteriorated to such 0 an extent as to make it reasonable for him to undergo a laminectomy which if successful would relieve him of pain 0 sufficiently to enable him to engage substantially in his pre-motor vehicle collision activities. It would leave him with some immobility and some discomfort but not such as to interfere with his earning capacity which is presently destroyed by the pain he suffers from his back condition. It is necessary to refer as briefly as possible to the very significant amount of evidence called to support the quantum of 0 the plaintiff's claim. () The plaintiff was born on 6th August 1941. At the time of his injury, therefore, he was a little over 44 years of age. He was then employed· as a sales manager and was driving the motor vehicle in the course of his duties when injured. It appears from the material that in May 1982 - three and a half years before the motor vehicle accident - he developed leg cramps and sensations·in the calf of his right leg. X-rays were -- 17 of 43 -- 15 taken of his lumbar-sacral spine and sacroiliac joints, and ''minimal" lipping was shown at the L4 vertebrae level. On 2nd November 1982 the plaintiff turned as he was walking down steps from his place of employment and felt a sharp pain in his back. He visited the Sunnybank Medical Centre on 4th November 1982 where a lumbar sacral spine injury was diagnosed. X-rays showed that the plaintiff's lumba,r spine deviated slightly towards the right and there was slight degenerative lipping in the lower lumbar spine. The plaintiff received physiotherapy for this back condition and visited the clinic with respect to that back condition on a f significant number of occasions in November and December 1982. In January 1983 it was noted by a medical practitioner in the clinic that the plaintiff was still suffering "some low pain in sustained lumbar extension". In June 1983, the plaintiff again received medical advice and physiotherapy treatment with respect to his back conditiop. ( ': _) On 21st June 1984 the plaintiff again consulted the Sunnybank Medical Centre for pain at the lumbar sacral spine which "started again" when the plaintiff drove a new car with heavier steering than his previous car had. He again received physiotherapy treatment for this condition, but on 2nd July 1984. he, again attended the medical centre where it was noted that he had "regressed since bending over two days ago". Again he received physiotherapy treatment. On 8th August 1984 he again received treatment at the medical centre for sciatica in the left leg which had come on after he stood at work for .some hours five days previously. On this occasion he was referred to Dr. Maguire, a -- 18 of 43 -- 16 specialist in orthopaedics. Dr. Maguire examined the plaintiff on 28th August 1984. ·He informed Dr. Maguire that he had had trouble with his back with discomfort some mornings getting out of bed and discomfort suffered when sitting for any .length of time for a period of two years. He said that merely standing in one place caused him discomfort. He informed the doctor that he had been standing around the previous week when his back became uncomfortable and he then developed pain in the left buttock which radiated. into the back of his thigh and calf with a tingling sensation under foot. He said that his pain had been at such a level that .he could not possibly go to work and had been lying about at home. Dr. Maguire examined the plaintiff and 0 found that he had a moderate back movement with scoliosis of sciatic origins. He had an absent left ankle jerk, no detectable weakness with sensory change underneath the foot, and he had a straight left leg raising to about 40 degrees. Dr. Maguire diagnosed the plaintiff's back condition as being a "left S1 root compression due to L5/S1 .disc prolapse". Dr. Maguire arranged for the plaintiff to have an epidural injection of steroid to be followed by bed rest at home. He observed at the end of the report that he made on his very first examination and treatment of the plaintiff, that with the history that the plaintiff had given him "it is conceivable that he might fail to recover and come to laminectomy". The plaintiff received physiotherapy treatment etc. and by October had made what Dr. Maguire described as "a dramatic recovery in the last few weeks". Dr. Maguire informed Dr. O'Brien of the Sunnybank Medicar·centre that he had thought 0 0 -- 19 of 43 -- 17 that the plaintiff would have to have a laminectomy but that he seemed to have avoided that necessity. Dr. Maguire did not see the plaintiff again in the 1980s after he saw him on 2nd November 1984. However consequent upon the plaintiff making a claim for workers' compensation as the result of injury he received in the motor vehicle accident on 8th November 1985, Dr. Maguire reported to the Workers' Compensation Board his opinion as to the plaintiff's condition when he had last seen him. He stated: "The patient had a severe S1 root compression causing left sciatica from which he appeared when last seen to have made a reasonable recovery. The history of pre-existent back discomfort suggests that it is possible that he has a narrow spinal canal with the chance of repeated episodes of sciatica. While his episode of severe pain began at work it is obvious that there was pre-existing pathology present." The solicitors for the plaintiff apparently sought advice from Dr. Maguire after commencing this action on behalf of the plaintiff. By report dated 29th July 1990, he advised that in August 1984 the plaintiff had a severe S1 nerve root compression ( causing sciatica. He said that the symptoms which began during work were clearly due to a prolapse of the L5/S1 disc and to compression of the left S1 nerve root. He advised: "Once a disc prolapse has occurred some patients recover totally and are not significantly bothered again. Others have recurrent difficulties. Events such as the motor vehicle accident which you mentioned in your letter can cause re-occurrence." In a letter to the solicitors for the defendant dated 9th February 1993, Dr. Maguire confirmed the advice he had given to the plaintiff's solicitors and observed that perusal of the notes from Sunnybank Medical Centre showed that the plaintiff had further back pain and left sciatica from April 1985, and indeed between April and October 1985 he had had nine visits to the -- 20 of 43 -- 18 Centre for back pain. He notes that it was on 8th November 1985 that the plaintiff was.involved in the motor vehicle collision with the defendant. Dr. Maguire observed that the multiple visits by the plaintiff to his doctor for low back pain during 1982, 1983, 1984 and 1985 made it clear that unless the motor vehicle collision was "unusually violent" or "the pattern of symptoms different", one could not conclude that the motor vehicle collision played any more than a minor part in the persistence of the back pain suffered after than collision. In () fact he expressed the view that it would be hard to come to the conclusion that it had any effect at all. Dr. Maguire again examined the plaintiff on 21st October 1992 for the purpose of this litigation. That examination in the Doctor's view confirmed that the plaintiff had a degenerate disc in his back which caused typical symptoms of the pain which caused him trouble. Dr. Maguire expressed the view that the degenerative condition of the L4/5 disc probably was responsible for the disability currently suffered by the plaintiff, but that it · was most unlikely that the motor vehicle collision o·f 0 0 8th November 1985 played any part in the causing of that Q condition. Dr. Maguire expressed his opinion on the assumption that there was no particularly violent application of force which affected the plaintiff's back at the time of the collision. He did this on the basis of what he had read in various reports etc. Upon my evaluation of the evidence given by the plaintiff, Dr. Maguire's assumption was warranted. He expressed the view that for~orc~s applied in the course of the collision to have -- 21 of 43 -- \ \ 19 any effect on the current condition of the plaintiff's spine, those forces would have had to cause significant disabling pain at the time of the collision. If symptoms developed in the plaintiff's back some hours after the collision it was Dr. Maguire's view that albeit that those symptoms resulted from the application of force they were not sufficiently ~evere to permit an inference to be drawn that damage then done to the plaintiff's spinal processes could be contributing to the symptomology of which he complained at date of trial. In effect it was Dr. Maguire's view that accepting that symptoms of pain did appear some hours after the collision, whatever traumatic ( effect the collision had on the plaintiff's spine would have ceased to be operative after about six months. The plaintiff said that he was supported by a seat belt at time of collision·and that as a result of the impact hishhips moved across the seat and (presumably his right hip) came to.rest against the arm rest on the driver's side door. He said he felt () discomfort in his back although not in the same area where he ~ad previously had back pain treated. He suffered no sciatic pain ( at that time suggesting no involvement of the sciatic nerve in '...___/ any trauma suffered in the collision even though his previous back trouble for which he had received treatment had involved sciatica. Medical examination of the plaintiff within a few hours of the collision revealed no neurological symptoms. Moreover immediately after the collision the plaintiff gave no indication of suffering from any painful restriction upon his physical capacities. I accept the evidence of the defendant that the movements and behaviour of the plaintiff were "extremely -- 22 of 43 -- I I 20 active" as he remonstrated with the defendant in an abusive manner. He gave no indication of having sustained a significant or indeed any physical injury or impairment. Dr. O'Brien, the general practitioner who had referred the plaintiff to Dr. Maguire, referred to the report on the x-ray of the plaintiff's lumbar sacral spine of May 1982. He referred to the pairi that the plaintiff had consulted him about in the lumbar sacral spine area which developed after he had walked down the steps of his office in 1982. It· is clear that Dr. 0 I Brien gave 0 workers' compensation certificates to the plaintiff during 1982-1983 for back pain in the lumbar sacral region suffered in the course of his employment. He said that from 8th November to 26th November 1982, the plaintiff was on workers' compensation for back trouble and was on partial incapacity workers' compensation from 26th November 1982 until 28th January 1983. He said that tHe plaintiff again consulted him for back pain and right sciatica this time in June 1983. ·The plaintiff consulted Dr. O'Brien in July 1983 and the doctor said that at that stage the plaintiff's back condition was improving. It was not until 18th August 1983 that Dr. 0' Brien formed the view that the plaintiff could return ·to work without any further worker's compensation support. Dr. 0' Brien confirmed that he next saw the plaintiff on 21st June 1984 complaining of pain in the central lumbar-sacral spine area caused apparently by driving the new car. It was this complaint which led Dr. O'Brien to refer the plaintiff to-Dr. Ma~uire. ·on 2md July 1984 the plaintiff again consulted Dr. O'Brien who noted that the plaintiff had "regressed since bending over 0 0 0 -- 23 of 43 -- . \ \ / l) two days slightly". 21 ago; on examination spine deviated to the left Dr. O'Brien records that during 1985, in April May and June, the plaintiff was receiving treatment for his back and complaining about "a flair up" of the.back. The plaintiff had acupuncture for his back problems in July, August, September and October of 1985. In fact on 25th October 1985 he received acupuncture for his back pain and that was the last occasion upon which he attended the Sunnybank Medical Centre for treatment for a painful back prior to the collision with the defendant on 8th November 1985. The plaintiff apparently complained to the doctor he attended that he felt low back ache pain when standing~ In fact he·said apparently that it was "lower than usual". On that occasion the plaintiff had no spasm in the back, no scoliosis and he exhibited a normal straight leg raising. However, an x-ray was ordered and examination of this x-ray of the lumbar-sacral spine and sacroiliac joints showed no abnormalities. The plaintiff again attended for treatment of his back on 13th November 1985 where he was complaining of a low back ache "still" and tightness to the left calf. Examinations sho.wed that the plaintiff had a full range of movement with equal leg raising capacity of 80 degrees for both legs. The plaintiff's condition was diagnosed as "muscular strain" and he was given a certificate for workers' compensation for three days. On 18th November 1985 the plaintiff was still complaining of a mild ache in the left leg and some lower back ache. He was diagnosed provisionally as suffering from "the condition of L5/S1 spine area". It was concluded that the nerve root compression had settled spontaneously. He was given another certificate for five -- 24 of 43 -- 22 days off work on workers' compensation. On 25th November 1985 the plaintiff was again examined and stated that his condition was improving. He was then able to raise both legs in a straight leg raising to 90 degrees. He was prescribed a back brace and given another week off work on workers' compensation. He attended again on 2nd December 1985 complaining of persisting pain and Dr. O'Brien then referred the plaintiff to Dr~ Morris for orthopaedic appraisal. He next saw the plaintiff on 1Oth March · 1986 when the plaintiff said that his back was Q still not better and complained that one day the back condition had caused him to fall to the floor. The plaintiff was again referred to Dr. Morris. Thereafter the plaintiff did not attend the clinic for any medical treatment until 24th February 1987 - nearly twelve months after Dr. O'Brien had last seen the plaintiff. He was then complaining of back pain and Dr. O'Brien referred him to Dr. Nutting. Dr. Morris was the first orthopaedic specialist to examine the plaintiff after the motor vehicle collision of 8th November 0 '\ 0 198~. Dr. O'Brien had referred the pl~intiff to Dr. Morris who examined him on 6th December I 1985. Dr. Morris took the view 0 that the plaintiff had a disc protrusion probably at the L5/S1 level "which will probably settle with conservative treatment". He saw him again on 20th December 1985, 17th January 1986, 14th March 1986, 20th March 1986 and 15th April 1986. Dr. Morris said that he was not interested in any question of legal consequences that might flow from the plaintiff's injury but was treating him simply with a view to relieving his symptoms of pain in the back. He said· that when he first examined the plaintiff he had a -- 25 of 43 -- 23 restriction upon raising the left leg to 70 degrees whereas the right leg raising was normal. Subsequently when he exa~ined the plaintiff on 17th January 1986 the plaintiff had full leg r.aising capacity on both sides. The plaintiff informed Dr. Morris when he presented for examination on 20th March 1986 that he had fallen over two days previously due to a stab of pain in the back. On this occasion Dr. Morris could find no abnormal signs. He observed that if in fact on 4th November 1982 the plaintiff's ability to raise both legs straight was only 60 per cent then he was certainly more incapacitated then than he was at March 1986 and Dr. Morris expressed the opinion that back in November 1982 · \ he must have had a "fairly active disc lesion at that stage". ( / Dr. Morris considered the findings of Dr. Maguire in 1982 and subsequently, and expressed the view that the pattern of disability that had been observed and recorded by Dr. Maguire was very similar to that which he observed. Dr. Maguire expressed the view that the plaintiff's back problems that he detected were \_) really an aggravation of the back condition from which he had been treated prior to the motor vehicle collision. In fact he observed that when examined on 20th March 1986 the plaintiff was complaining of no back pain whatever. On that occasion the plaintiff informed Dr. Morris that he had fallen as a result of a pain spasm in his back which Dr. Morris thought was quite unusual. Put shortly Dr. Morris expressed the view that to the extent that the motor vehicle collision in which the plaintiff was involved on 8th November 1985 aggravated the back condition from which he had been suffering for some years the repercussions of -- 26 of 43 -- 2-4 that aggravation would have ceased to have effect within six months of the collision. ·As far as any possible injury done to the pli:iintiff' s disc as distinct from an aggravation of a pre-existing back condition Dr.- Morris said that most disc injuries heal within two years. He expressed the view that whether the injured disc received surgical repair or "merely conservative treatment", the disc injury would repair/heal within about the- same time that is a period of two years. Conservative treatment involved simply allowing the development of a scar t~ssue on the injured disc which apparently would give it support and stability. 0 Dr. Morris expressed the view that to the extent that the () motor vehicle collision involving the plaintiff had any effect on the plaintiff's degenerative condition of his spine in the LS/81 area that effect would have settled back to its pre- accident state within a period of six months. The point made by Dr. Morris was that while there could be little doubt accepting the statements of the plaintiff that the degenerative condition of his spine was aggravated by the trauma of the collision for 0 about six months it was very difficult to say on the evidence () available that the degenerative process itself had progressed more quickly as the result of that trauma. Dr. Morris said that the first time the plaintiff saw him he had informed him that he was then in the same pain as he had experienced before the collision. Dr.- Morris said that the p-laintiff had indicated that the location of the.pain and the level or degree of pain was the same·afterthe motor vehicle collision as before it. Dr. Morris -said that for the trauma of the motor vehicle collision to have -- 27 of 43 -- 25 effected a "change in the. underlying pathology" of the degenerative state of the plaintiff's back, it must have resulted from a tear in the vertebral disc at the time of the trauma and that this tear would have caused quite significant serious pain straight way. He expressed the view that the sciatica which developed subsequent to the collision did not become immediately apparent at the time of the collision and therefore in his view it could not be said that anything happened in the collision to produce pressure on the sciatic nerve. The plaintiff had suffered from sciatica both before and after the collision and in Dr. Morris' view the fact that no sciatic pain-was experienced at the time of the collision or within a few .hours of it made it difficult to suggest that such damage had been inflicted to the degenerate disc at the time of collision as to make a significant alteration in its pathology. Dr. Morris was of the view that it could not be asserted, or at least he would not agree with the proposition that the degree of degeneration in the plaintiff's (_) disc was at all accelerated by the collision. The most that could ever be said if there had been any acceleration of the degenerative process was that it would not be by more than one or two years. He said that eventually the plaintiff wduld have ended up with precisely the same degenerative process in his back as had been ascertainable prior to the motor vehicle collision. Dr. Nutting to whom the plaintiff was referred by Dr. O'Brien in February 1987 first examined the plaintiff on 2nd March 1987. The plaintiff then complained of several episodes of left S1 sciatica which had gone ~way. Subsequently he complained that constant sharp pains developed in the mid-line -- 28 of 43 -- '26 of the spine and that these sharp pains were of a short duration. The plaintiff told that doctor that the motor vehicle collision in which he was involved in November 1985 had led to a recurrence of symptoms of sciatica and back pains but the back pains had persisted over the three months prior to March 1987. Dr. Nutting examined the plaintiff and said that he was probably suffering from a degenerative lumbar-sacral disc or sacroiliac joints because the· plaintiff was unable to localise his pain exactly. He said he found no neurological deficit and that he had a CT Scan performed on the plaintiff 1 s back but this did not demonstrate any significant pathology which would lead him to contemplate surgical procedure. He said that the plaintiff 1 s complaint that he could sense something in his back "going out and something going in" was a complaint o"f something that was impossible. Dr. Nutting said that he injected anaesthetic and cortisone in the sore spot indicated by the plaintiff in his back ·and that this was merely for the relief of generalised pain. Dr. Nutting examined the plaintiff on three occasions subsequent to obtaining the CT Scan and 'he said that in his view the n l --· 0 plaintiff would best be specifically rehabilitated rather than () remain inactive. Dr. Nutting expressed the opinion that the plaintiff 1 s back problem for which he had been consulted was one "which had been aggravated or had recurred in spite of the fact that he felt that it had resolved following a motor vehicle accident". Dr. Nutting expressed · the view that "the traffic accident was-just -one of the episodes along the way" to the back condition· in respect of which th.e plaintiff consulted him in March 1987. Dr. Nutting summed up his opinion ·in these terms:- -- 29 of 43 -- ·~ ( I 27 "The way I recorded it was just that he was a 45 year old 'works in a managerial position in the food industry', 1982 left S1 sciatic. Conservative treatment. Terry Maguire. Recovered. November 1985 recurrence sciatica resolved. Back pain persists and then 'three months ago' which makes it the beginning of 1987 and therefore what 13 months after the accident he began suffering yet a further exacerbation for which I was being asked some management for." Dr. Nutting expressed the view that the plaintiff simply suffered from a chronic back disc disease which had been characterised over the years by a sequence of exacerbation and remission. He said that he thought that it was likely that the motor vehicle collision caused a worsening of the underlying pathology of the plaintiff's back condition. He expressed the view that there was ( ) no statistical evidence that could support a "guesstimate" of the extent to which the plaintiff's degenerative condition had been accelerated if indeed it had been. All the doctors to whose evidence I have so far referred examined and treated the plaintiff for pain in the lower back prior to the plaintiff commencing these proceedings on 4th C.) November 1988. Subsequent to the institution of proceedings the plaintiff was examined at the request of the plaintif~'s ( solicitors by Dr. Curtis and Dr. Sutherland. In fact Dr. Curtis was involved in the performance of a lumber discography upon the plaintiff on 27th November 1989. The plaintiff had apparently been referred to Dr. Curtis for this treatment by Dr. Howarth of the Shailer Park Medical Centre at Loganholme. Subject to that qualification however, neither of those doctors appear to have found it necessary to consider the plaintiff's back condition either before or after the collision in issue for any purpose other than for the purpose of this litigation. -- 30 of 43 -- 28 The plaintiff relies substantially upon the evidence of those two medical experts - Dr. Curtis, an orthopaedic surgeon and Dr. Sutherland, a neurologist. Both doctors first examined the plaintiff subsequen·t to his commencing this action. Dr. Sutherland first examined the plaintiff on 11th April 1989 and Dr. Curtis examined him on 5th October 1989. The only purpose of the examinations made by Dr. Sutherland was to obtain his expert opinion on the matter which is critical in assessing the damage suffered by the plaintiff resulting from c=J the November 1988 collision- i~e. the effect of whatever injury he then·suffered upon the degenerative processes of his lumbar sacral spine and in· particular the extent to which any such Q injury accelerated the onset of symptoms. The history which the plaintiff gave to Dr. Sutherland which formed the basis of the expression of his opinion, at least initially, in my view played down very significantly the extent to which he suffered back trouble ·between 1982 when he first suffered back pain as he twisted _ while walking down steps near his office, and the treatment he received a couple of weeks before the collision in issue in this case for his lumbar back problems. In the course of cross-examination of course, the full history of the plaintiff's symptomology from his lumbar spine prior to the collision in issue was put to the doctor but he was unpersuaded to depart from the opinion he had initially formed albeit that critical to that opinion was the fact that the plaintiff had made a very quick recovery from- the initial back·· trouble that he suffered in 1982 - the· impressidn of Dr. Sutherland being that 0 0 -- 31 of 43 -- 29 the plaintiff had recovered from this within a period of from four to six weeks. The second important factual assumption upon which Dr. Sutherland based his opinion and this assumption was based on what the plaintiff had told himi was that virtually instantaneously with the collision the plaintiff suffered severe pain in his lumbar sacral spine. Dr. Sutherland agreed that he was familiar with the opinion of Dr. Maguire expressed in his report of 29th July 1990. In that report Dr. Maguire indicated that between August and November 1984 the plaintiff was suffering from a severe nerve ) root compression causing sciatica with a history which suggested he had a pre-existing pathology in his lumbar. spine. He then diagnosed the compression as being due to an LS/S1 disc prolapse. Dr. Sutherland said that he thought that that particular report generally was fair and sensible, and he agreed that disregarding altogether anything tha~occurred in the motor vehicle collision of 8th November 1985, the findings of Dr. Ferguson, who reported on an x-ray taken of the plaintiff's back on 1st September 1992, 1 \ are exactly what one would have expected them to be even without ' .. _) the motor vehicle collision, having regard to the history of problems which the plaintiff had with his back from 1982. Having agreed with that proposition however, Dr. Sutherland went on: "We are dealing with a progressive condition over. a period of time. Things like bending to pick up keys, standing too long on one object bring on symptoms butthe picture as I see it changes after the caraccident - suggests that the twisting accident or theimpact in some way did alter the balance in the lumbar region.. It did cause further pathological change and therefore a deterioration in this man's system." -- 32 of 43 -- 30 Dr. Sutherland conceded that the problem from which the plaintiff suffered in 1982 had indeed continued on for 10 years to the date of trial. Dr. Sutherland pointed to the fact that the symptoms from the plaintiff's back had accelerated over the four year period subsequent to the motor vehicle collision in 1985, and based upon this he expressed the view that the motor vehicle collision "could have produced changes in the spine as distinct from symptomatic changes". In my view there is no evidence whatever to suggest that any Q chang~s were in fact produced in the spine - that is, clinically detectable pathological changes attributable to the motor vehicle collision. The opinion expressed by Dr. Nutting seems to me to ~) be so tentative in the context of his evidence generally that I give little weight to it. Indeed in my view other medical opinion which I find persuasive is clearly to the contrary. Dr. Sutherland conceded that the plaintiff's problem was essentially one which arose from the condition of lumbar spondylosis which was detectable clinically and clearly visible up6n x-ray and CT Scan. He said that if the plaintiff had a fusion operation, he would probably be relieved of his sciatic pain and would then be able to resume the sort of work which he was doing before his back pain caused him to give it up. He agreed that he was at very high risk of suffering disabling symptoms because of his back condition. While ·Dr. Sutherland has given ·very long and detailed reports explaining the . nature of scoliosis ·and degenerative conditions· of the spine and the circumstances which may lead those conditioris to produce· symptoms oi'pain, I am unpersuaded 0 0 -- 33 of 43 -- ) 31 that his opinion in this particular case is as persuasive as those of Dr. Maguire and Dr. Morris, both of whom in fact treated the plaintiff for his back condition long before the present action had been instituted. Indeed Dr. Maguire treated him for his back condition long before the motor vehicle collision occurred and I find his opinion supported as it is by that of Dr. Morris more persuasive than the opinion of Dr. Sutherland .. The second doctor upon which the plaintiff relies is Dr. Curtis. Dr. 5th October 1989. Curtis first examined the plaintiff on He di~ this at the request of Dr. Howarth, a general practitioner whom the plaintiff was apparently consulting for spine problems. Subsequent to that, he prepared reports all of which seem to me to have been prepared for the purpose of this action. In essence it was the view of Dr. Curtis that had it not been for the injury suffered by the plaintiff in the 1985 collision, the degeneration of his spine would not have reached its present state until between 7 and 17 years from the date.of / I \,_j collision in 1985. Dr. Curtis confirmed that x-rays of the plaintiff's spine taken shortly after the motor vehicle collision, gave no indication of any bony injury but only of "slight degenerative change" at the LS/S1 level. Dr. Curtis agreed that although the plaintiff's present back condition is what one would have expected to have developed 1 0 years after the onset of his symptoms in 1982, nevertheless one.would not have expected him to be suffering from the symptoms produced in 1989. He observed that radiological changes had advanced more rapidly than one would expect. Dr. Curtis agreed that degenerative changes in -- 34 of 43 -- 32 spinal processes "usually occur firstly at the bottom joint the lumbar sacral joint and later occur above that level". He then agreed that any trauma suffered by the plaintiff in the 1985 motor vehicle collision "wasn't a contributing factor to the existence of the lumbar sacral disorder because there is evidence that was degenerate at the time of the accident". However he went on to express'the opinion that "the accelerated progression of degeneration at that level is judged by _the radiological changes. In addition I feel that it has caused some injury to the L4/5 disc rendering that prematurely degenerate". I find it. a very difficult matter to resolve the clear conflict between the medical opinion of Drs. Maguire·and Morris (and to some extent Dr. Nutting) on the one hand, and those of Drs. Curtis and Sutherland on the other. I find pe-rsuasive the contemporaneous medical history of the plaintiff's back trouble· recorded in ·the notes ·taken at the 0 0 0 medical centre where Dr. 0' Brien practised and the opinions expr~ssed by Dr. O'Brien, and Dr. Maguire in particular, which appear to ·have been based upon the opportunity they had to observe the plaintiff while treating him for his condition rather Q than upon examinations made in contemplation of a medico-legal report for use in litigation. The opinion expressed by Dr. Maguire is supported·by Dr. Morris, and I keep iri mind that Dr. Morris also treated the plaintiff prior to institution of legal proceedings. As to the effect ·on a pre-existing back condition of the force applied to the plaintiff's spine in the motor vehicle collision' in·November 1985, I conclude that the opinions expressed by Drs. Maguire and Morris are more probably -- 35 of 43 -- 33 correct than those given by Drs. Curtis and Sutherland. In coming to this conclusion I am influenced by the fact that both Dr. Maguire and Dr. Morris treated_ the plaintiff .for· his. back condition long before institution of proceedings by the plaintiff. Exhibit 47 is a chronology of medical treatments sought by the plaintiff for his back condition from May 1982 until the time of the collision in this case, which occurred on 8th.November ( 1985. It is clear that immediately after the collision, the \ plaintiff did not suffer any significant increase in his back symptoms. Indeed he said that he suffered some discomfort but c ) did not treat it seriously. He said that by about 3 p.m. or 3.30 p.m. on the afternoon of the collision, the pain in his back "was becoming more prominent". It is clear that it was at the suggestion of fellow employees that the plaintiff sought a medical examination.for back injury on the day of the collision. .About a month after the / \ ! ) \._.. collision, the plaintiff was examined by Or. Morris, complaining of pain in his lumbar spine radiating down his left leg which was made worse if he coughed or sneezed or bent over. Dr. Morris found that the plain~iff's back movements were limited and he formed the view that the plaintiff had a disc protrusion which would probably settle with conservative treatment, and he referred him for physiotherapy. He apparently saw the plaintiff again in about a fortnight. At that time he reported that the plaintiff's sciatica had completely settled and his back pain was decreasing. Dr. Morris again examined the plaintif~ and in a report of 24th March 1986 he observed that at the time of -- 36 of 43 -- 34 examination the plaintiff's back pain had settled completely. On 24th March 1986, Dr. Morris 'could find very little wrong with the plaintiff and suspected, I think, that there may have been some functional overlay relating to problems he was experiencing at work. The plaintiff gave evidence that indeed his back condition did improve between April/May 1986 through to September 1986. It appears·that he was off work from about the time of the collision until about April 1986 - approximately six months. He resumed work with the employer for whom he was working at the time of the collision but left soon afterwards on 13th.May 1986, () for reasons unconnected with his back condition. He immediately () obtained employment with Teys Brothers at Beenleigh, where he remained until May 1987 when he ceased employment with that firm again for reasons not·connected with back problems. Eventually in October 1987 the plaintiff commenced employment with Craig Mostyn & Co. where he remained until late 1989 when due to his back condition he commeneed to have substantial time off work on wbrkers' compensation. During 1988, he had two periods off work on workers' compensation by reason of back pain. He had 10 days off in March 1988 and about two days in November 1988. Upon my assessment of the evidence, it was not until several years had passed from the time of the plaintiff's resumption of work in May 1986 that his back condition deteriorated to such an extent as to have signi:ficant effect on his earning capacity. On my analysis of the evidence, although the plaintiff suffered some exacerbat:ion of, his back symptoms for a· few months after the ·collision, his condition. then improved significantly and he seems 0 () .. -- 37 of 43 -- 35 to have had somewhat less back trouble and treatment for it in 1988 and 1989 than he had had for it in 1982, 1983 and 1984. For the purpose of assessment of damages, I make the following findings: 1 . The plaintiff suffered no significant injury to his back in the collision in 1985. 2. As a result of forces applied to the plaintiff's vertebra in the collision, his pre-existing back· condition was (J aggravated to the extent that he suffered symptoms for a period of about six months or so which he would not have otherwise have suffered. 3 . The forces applied to the plaintiff's vertebra in November 1985 did not accelerate the onset of the disability in his back which eventually prevented him from working to~ards the end of 1989. 4. The onset of the plaintiff's back disability which prevented him from working resulted from the natural progression of his back condition which first manifested itself in 1982 in the course of his employment, and in respect of which from that time onwards he received payments of workers' compensation from time to time. The plaintiff says that he was able to resume work full-time after back symptoms aggravated by forces applied in the November collision settled in about mid-May 1986. ' I conclude therefore that damages should be assessed on the following basis: 1. The plaintiff should recover the equivalent of the salary lost between the time of the collision on 8th November 1985 -- 38 of 43 -- 36 and the time he resumed full-time employment in · about . . mid-May 1986. On the material before me I am unable to calculate this sum with precision. The plaintiff's case ·was conducted on the basis that forces applied to his back in the collision had a significant effect on the deterioration of his back. In essence the plaintiff's case upon quantum and .the evidence called to support it, assumed the acceptance of. the evidence of Drs. Sutherland and Curtis. For reasons I have already given, I do not accept that evidence. 0 In ex.. 15 the plaintiff set forth_ a chronology of relevant events. I propose to rely on two facts contained Q in this chronology as a basis for calculating his loss of ----.~--- income. a) From 1st July 1985 to 31st July 1985 he received net earnings of $2,855.70, and b) Between 12th May 1986 and 28th May 1987 he received net earnings o£ $22,319.84~· · . His average .. weekly net earnings then for the first period was $634.60 and his average weekly net earnings for the second period was $413.33. The average of these two figures is $524 and I propose to adopt that figure.as the weekly net loss suffered by the plaintiff from the time of his injury until the time he rest1med work in mid-May 1986. Upon the relevant material available, the assessment of damages for loss of income is essentially an assessment of. general damages, and upon that basis I assess damages at $13,600. 0 (J -- 39 of 43 -- 37 2. The plaintiff must recover some damages for medical and other expenses incurred in the six month period during which, upon my finding, he incurred medical and other out-of-pocket expenses by reason of the motor vehicle collision in which he was involved. Unfortunately~ the material adduced in evidence does not descend to sufficient particularity to enable a prec~se estimate of these/ expenses. Doing the best I can from ex. 44, it seems that the plaintiff attended upon Dr. 0' Brien or one of his fellow medical practitioners at the relevant clinic on about six occasions during the relevant period. He was then referred for x-rays and for treatment to·Dr. Morris. I infer that the Workers' Compensation Board would have paid for the cost of the medical visits and treatment together perhaps with some of the costs of analgesics, etc. Unfortunately, the material does not permit me to calculate with precision this sum but in the circumstances I do the ( ' u best I can and simply make an allowance having regard to the sums received by way of benefit and to the notification of the total refunds due for workers' compensation payments and benefits granted between November 1985 and September 1989 (vide ex. 12). Obviously, .workers' compensation payments were made having regard to the condition of the plaintiff's back and its effect on his capacity to work, on the basis that both those matters were compensable under the provisions of the Workers' Compensation Act. Upon the material before me it seems that that was quite a correct assessment. However, in my judgment; payments of workers' -- 40 of 43 -- 38 compensation and medical costs etc., with respect to the period after mid-May 1986 was not attributable to the collision of 7th November 1985 although it may well have been attributable to the onset of back trouble in 1982 and subsequently which · was indeed compensable under the Workers' Compensation Act. It is unclear to me on the material what weekly compensation benefits the plaintiff received with respect to the six month period between date of collision· in November -1985 and resumption of work Q full-time in May 1986. From the content of exs. 12 and 13, it seems that in respect of weekly compensation payments of $24,093.57, tax was paid by the Workers' Compensation Board ~ in the sum of $4,582.68. It is clear that there is a Fox v. Wood component to ·be calculated. Doing the best I can, I assess this component in respect of compensation paid for six months .subsequent to the collision in the sum of $2,000. With respect to the medical and other expenses for this period of six months, most of which I suspect were met 0 by the Workers' Compensation Board in any event, I assess Q special damages in the sum of $1,000. This is between one-quarter and one-third of the total hospital, medical and other exp:enses referred to in ex. 12. It is ·clear from the material placed before me in the form of a schedule of ~pecial damages, that rio effort has been ~ade t6 calculate d~mages incurred between date of collision and mid-May 1986, and I find it impossible to deduce from that material with sufficient particularity, medical and other costs -- 41 of 43 -- I ~' 3. 39 which were incurred during that period as distinct from being incurred between date of collision and date of trial. I think it quite likely that some out-of-pocket expenses were incurred during the six month period that the plaintiff was away from work, and receiving medical and other treatment as a result of the collision. Doing as best I can, I assess damages generally for other out-of-pocket expenses incurred during the six month period in addition to medical and similar expenses in the sum of $750. General damages for pain, suffering and loss of amenities of life attributable to the exacerbation of back symptoms by the motor collision must be assessed upon the basis that at the time of the collision the plaintiff had degenerative deterioration of his vertebra in the lumbar area for which he had received much. treatment over the previous three years, but which was quiescent at that time. Following on the collision, the symptoms the plaintiff suffered for a period of six months until he was able to resume work were both disabling and painful. Having regard to the nature of the exacerbation and the period during which it- operated, I make no allowance for the possibility that some other event of a kind that had previously caused him to obtain medical treatment for his back condition may have had a similar effect upon the plaintiff as did the collisibn in which he was involved. I assess general.damages under this head in the sum of $4,000. -- 42 of 43 -- 40 On the material it appears to me that the plaintiff was not in e:f:fect significantly. out of pocket as the consequence of incurring medical and other expenses met by the Workers' Compensation Board. It seems also that he recovered a significant amount of workers' compensation and in the circumstances, keeping in mind in particular that there has been delay in bringing this matter to court, I decline to award interest on these sums to be recovered by the plaintiff. With respect to the award of general damages for pain, suffering and loss of amenities, I assess interest on $4,000 for 5 years at 2 per cent which amounts to $400. '"'--< Damages for the plaintiff are assessed in the following ( \ '----/ sums: a) Loss of income $13,600.00 b) Medical and similar expenses $ 1,000.00 c) Out-of-pocket expenses $ 750.00 d) Fox v. Wood component $ 2,000.00 e) General damages $ 4,000.00 f) Interest $ 400.00 TOTAL ~21!750.00 There will be judgment for the plaintiff against both defendants for 90 per cent of the damages so assessed in the sum of $19,575. -- 43 of 43 --