Abdelshahied v Commissioner for Railways [1991] QSC 267

IN THE SUPREME COURT OF QUEENSLAND Before Mr. Justice Mackenzie BETWEEN: WAGDI ABDELSHAHIED THE COMMISSIONER FOR RAILWAYS JUDGMENT - MACKENZIE J. No. 2088 of 1987 Plaintiff Defendant Delivered the 18th day of September, 1991 Counsel: J. Webb for plaintiff K. Boulton for defendant Solicitors: Flower & Hart for plaintiff K.M. O'Shea, Crown Solicitor, for defendant Hearing dates: 18-19 April, 21-22 May, 1991. -- 1 of 23 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN: WAGDI ABDELSHAHIED THE COMMISSIONER FOR RAILWAYS JUDGMENT - MACKENZIE J. No. 2088 of 1987 Plaintiff Defendant Delivered the 18th day of September, 1991 This is an action for negligence arising from a fall suffered by the plaintiff during the course of his duties as a checker at Clapham Junction at 8.00 a.m. on the 6th June, 1986. At the time of the accident the plaintiff was on the top level of a double-decker rail wagon used for transporting motor vehicles. Part of his duties as a checker was to check that keys for vehicles on the wagon were in a receptacle on the wagon, and this involved stepping from wagon to wagon for the purpose of making the necessary inspections. As he was performing this manoeuvre he stepped forward with his left leg. While he was doing that his right foot slipped on the metal surface of the wagon which caused him to fall forward. His hands came down onto the wagon on to which he was stepping and his right leg impacted forcefully on a metal edge. He immediately felt pain in the lower part of his leg, and having climbed down the ladder attached to the wagon as best he could, he called for help. He was taken to Princess Alexandra Hospital -- 2 of 23 -- 2 where it was found that he had a compound fracture of the right tibia. Liability was settled just before the trial commenced. However, there is a major area of dispute in relation to quantum which concerns the full effects of the fall that he suffered. The plaintiff was born on the 20th May, 1948 and was therefore 38 years of age at the time of the accident. He was born in Egypt and after coming to Australia in September 1971 joined the Queensland Railways in 1975. period he was continually employed by Apart from one brief Queensland Railways thereafter. During the course of his working life he has suffered a number of injuries in the region of the back. All except one, or perhaps two of these, have resolved without continuing symptoms. There are two possible exceptions. The first was in 1979 when he injured his back in a fall between a rail wagon and the platform. He was initially off work for nine days in connection with that. I will refer to this matter later. The second was one suffered in 1980 when a crane ran over his foot. He brought an action successfully in the Supreme Court in respect of this injury. The judgment of Williams J. which was delivered on the 10th October, 1984 and which was tendered by the plaintiff in the present proceedings, reveals that the evidence accepted by Williams J., was that the crane had struck the plaintiff in the small of the back causing him to fall. His right foot became jammed between portion of the crane and the ballast on the railway line. About three months after the accident he began to complain of pain in his back. The evidence accepted by Williams J. ( which appears to have been largely -- 3 of 23 -- 3 consistent as between the medical witnesses called before him) was that prior to this accident the plaintiff had pre-existing degenerative changes in his lumbosacral region including disc degeneration. Williams J. found that there was minor temporary back pain associated with the incident which had long since subsided, but that the substantial periods off work that the plaintiff had had, had been solely attributable to his pre-existing back condition and was in no way relevant to the injury sustained in the accident. Williams J. observed that if the plaintiff did not return to work it would not be because of his foot injury. It is convenient to record at this point that prior to the trial before Williams J. the plaintiff had been off work on workers' compensation from the 13th July, 1983 to 9th January, 1984 and from 24th March, 1984 until trial. The workers' compensation claim had been made on the basis that it was a reopening of the 1979 claim, not the 1980 claim. The plaintiff finally resumed work on the 1 st April, 1986. The events that led to his return to work were that in February 1986 he had received a lump sum payment of about $7,000.00 for 15 per cent partial permanent disability to his back following a determination by the Orthopaedic Board. He then took accumulated sick leave, the majority of which he had exhausted by the time of his return to work. In evidence-in-chief the plaintiff said that when he returned to work after the litigation had concluded he was able to manage his duties. He was asked:- -- 4 of 23 -- 4 "But after you returned to the Railways after that litigation finished?-- Yes. Was there any problem about continuing to work there?-- No. Were you able to manage your duties?-- Yes. Did you have continuing problems of some nature from your foot and your back from that earlier incident?-- ! had the pains, but I was coping with it, because I knew it was there. I was just coping quite well with it. I had problems there, there was no doubt about that. Did they ever stop you doing your work?-- No." It is clear that he suffered discomfort from his back at that stage. This is confirmed by passages in cross-examination, the effect of which are that he was suffering back pain that was variable in its intensity and duration but of lesser intensity than it was after the 1986 accident. The pattern remained much the same from the beginning of 1984 until the time of the accident in 1986. He located the pain as one extending from his back to his right knee. He said that he had no pain in his left leg prior to the 1986 accident. In the period prior to the accident, at the times when the pain was at its highest intensity it affected his ability to work. He said that he first noticed the increased level of back pain three to four days after the 1986 accident, when he was in hospital. He admitted telling Dr. Jones who took a history from him at the Princess Alexandra Hospital after the accident that he s.uffered from chronic ba.ck. pain extending to th~ x::igJ:it k.nee. In relation to his ability to work during the period when he was on compensation he said:- -- 5 of 23 -- 5 " when you were off work in the periods I have put to you previously - when you were actually off work prior to 1986, was that because you were genuinely incapable of working?-- No. Why were you off work incapable of working?-- if you were not genuinely Just because of my back. Is it that your back did working?-- My back was sore. not prevent you from My right leg was sore. Was it so sore that you could not work?-- I would say probably yes. So that when you were off work, it was because you genuinely could not work because of a sore back?-- Yes. It was not just that you did not like work?-- No. I always love my work. I never refuse overtime. I always love overtime. I always fight for overtime." In view of the first answer which might be thought to be contradictory of the later ones, I record that the plaintiff had a reasonable command of the English language without necessarily mastering all of its subtleties. One related but not necessarily co-extensive matter that was canvassed, for reasons that will become apparent later, was whether the plaintiff was a good historian in relation to his various injuries and symptoms. Based on his extended periods in the witness box it can be said that the plaintiff's presentation of evidence was not always organised or structured. He also had tendencies not to answer the question actually asked on occasions and to volunteer information that he perceived to be of assistance. This is not to conclude that he did this deliberately or to avoid the point of the questions when he was giving evidence. It is clear from the medical witnesses' evidence that he did not give comprehensive or wholly consistent histories, for whatever reason. These observations have three consequences. The first -- 6 of 23 -- 6 is that it is understandable that difficulty was experienced by them in obtaining an orderly history from him. The second is that if material matters were not conveyed to the specialists who examined him, regard has to be had to that in assessing the weight of their opinions. The third is that I treat with caution the plaintiff's evidence as to the extent and causation of his injuries. Neither counsel conducted the case or asked me to consider the matter on a basis other than that the plaintiff was unfit for work during his periods of absence from work prior to the 1986 accident, although, as will appear from the medical evidence, the reasons for his unfitness were probably complex. The medical evidence falls into two categories. The first relates to his orthopaedic and neurological condition. The second relates to his subjective perception of the extent of pain. In relation to the former there was a major area of dispute whether there was any aggravation of the plaintiff's back condition that was more than temporary as a result of the 1986 accident. On the one hand Dr. Guirgis, an Egyptian born orthopaedic surgeon whom the plaintiff had consulted in Sydney upon the advice of friends, and Dr. Teychenne, a neurologist practising in Sydney, gave evidence of permanent aggravation of the plaintiff' s condition. On the other hand a number of Brisbane specialists 'disputed this. Dr. Guirgis was aware that the plaintiff had had a CT scan done in 1983, and that from the result of a myelogram there was evidence of degenerative disc disease at the lumbosacral articulation, with involvement of the LS nerve root. Dr. Guirgis said that that scan taken in February 1988 showed evidence of -- 7 of 23 -- 7 L4-5 disc prolapse whereas the 1983 scan did not. The radiology report described it as a broad based posterior protrusion of the L4-5 disc. There was also minimal bulging of the L3-4 and L5-S1 discs. Although Dr. Guirgis gave evidence of this, the relevant scans were not produced by the plaintiff until after Dr. Guirgis had finished evidence and returned to Sydney, and after an objection that had been taken to producing them on the ground of legal professional privilege had been persisted in. I took the view that as Dr. Guirgis had relied on them as a basis for his evidence they should be produced, and they were. I should also mention in this context that Mr. Webb initially raised the question of recalling Dr. Guirgis in view of the lack of specific challenge to his evidence about the prolapse and subsequent evidence given by Dr. Blue that there was no change demonstrated by a comparison of the two CT scans. However, Mr. Webb later withdrew this application after taking instructions from his client. Dr. Guirgis' opinion with respect to the back injury involved the proposition that abnormal stress had been placed on the spine in the fall facilitating the occurrence of a disc protrusion. The onset of pain might take months or years to develop. He said that two to four years was not beyond ordinary limits but eight to ten years would be. He accepted that by 1983 there was evidence of involvement of the LS nerve root in the causation of pain in the right leg, but he thought that the complaint by the plaintiff of more intense pain following the 1986 accident demonstrated an aggravation of this involvement. It was only when the plaintiff began developing symptoms in his left leg about February 1988 that Dr. Guirgis had a CT scan -- 8 of 23 -- 8 done which showed, in his opinion, a disc protrusion at L4-5. He concluded that as this was at a different level from the former problem area this injury had occurred in the 1986 accident. He also theorised that because the plaintiff showed signs of chondromalacia patellae of the right knee he must have struck his knee during the fall. I regard this as pure speculation as there is no evidence of an injury to the knee nor evidence from the plaintiff that he struck the knee during the fall. However, it will be necessary to refer to this condition later. There is no doubt that the plaintiff did not make it clear to Dr. Guirgis that he had spent periods totalling two and a half years absent from work in the three years preceding the accident and had only resumed work some two months before it happened. Dr. Guirgis was of the impression that the plaintiff had only spent nine days off work immediately after the 1979 accident and had intermittently taken days off when he had an acute episode of pain. Dr. Guirgis said that even speaking in Arabic he found the plaintiff a bad historian. However, the result is that his opinion has proceeded • on a view of the facts that seriously understates the extent of the plaintiff's absence from work. Dr. Guirgis' reports show as early as 6th May, 1987 that he was of the opinion that the 1979 injury was not incapacitating. The following appears in that report. "Mr. Abdelshahied indicated to me that his back was reasonable prior to the accident that occurred on 6th June, 1986. He indicated to me that he realised that he had a back problem dating back to the accident that happened in 1979 but over the years he learned how to live with it and he learned how to avoid stressing his back so as to prevent the triggering of back pain. He indicated to me that he was coping well with his back -- 9 of 23 -- 9 problem but since the accident of 1986 he noticed severe aggravation of the pain and stiffness that he used to feel in his lower back as well as severe aggravation of the right sciatic radiation." That this state of belief continued to be a foundation of his opinion can be seen from a report of 22nd March, 1990, which contains a spirited refutation of Dr. Blue's opinion, where Dr. Guirgis concluded: "I am still of the opinion that Mr. Abdelshahied as a result of the accident of 1986 had sustained significant damage to his lower back causing further problems in the lower back and lower limbs as explained in my previous medical report of 06.02.90. Should this accident not have happened I would have expected him to continue working as he was doing prior to the 1986 accident ... " Dr. Teychenne was also left in an incomplete state of information in this regard. He accepted from a perusal of his reports that he must have been told by the plaintiff that the consequences of the 1979 accident had ceased by abotit 1983. He was plainly under the impression that the plaintiff was. back at work for a substantial period before the 1986 accident and that that was evidence that whatever problems had been caused by the 1979 accident had significantly resolved. He conceded that not having examined the patient before the accident he had no way of knowing what he was like prior to 1986. He had not seen the 1983 scan. So far as CT scans were concerned he said that one could not tell from a CT scan whether a bulge represented a prolapse. In addition, he said that the absence of evidence of a bulge or prolapse did not eliminate the possibility of one. In this respect, his evidence as to the inconclusiveness of CT scans alone was in accordance with Dr. Packer who expressed reservations about relying on CT scan evidence alone. It is also -- 10 of 23 -- 10 convenient to mention that when Dr. Blue gave evidence after the Sydney doctors had gone, he cast doubt on the utility of EMG muscle sampling as a diagnostic procedure. This was not put to Dr. Teychenne who had performed neurophysical testing and EMG muscle sampling as part of his examinations. As the question of recalling Dr. Teychenne was also canvassed but abandoned on instructions, I note that when Dr. Teychenne was describing his diagnostic procedures, he said that experience in diagnosis was a major determinant in making a diagnosis. Consistency of clinical history and clinical observations was an important factor. Later, in the context of discussing the choice of treatment, he said: "That takes a lot of clinical acumen. To supplement that, I then do neurophysical testing and EMG sampling, which is quite sensitive in picking up pressure on nerve roots, particularly EMG muscle sampling ... " As to the results of the EMG muscle sampling, he said:- "The EMG muscle sampling results indicated some decrease in recruitment pattern which means that there is some pressure on the nerves because he' s not obtained full nerve supply to the muscle. When you obtain a full nerve supply you get quite a normal recruitment pattern. When there is pressure on the nerve and a full muscle is not sustaining a full supply, in other words, some of the nerve fibres are being compressed - the recruitment pattern is sparse, in pther words, it's not a full recruitment pattern, and that's quite easy to pick. Is it important?-- Oh, yes. Oh, yes. Probably EMG muscle sampling is one of the key factors, but, as I have always said time and time again, it's the cl.in:ic.a.l exciminat:ion, put wi tll the investigations; neither one excludes the other." · It seems to me that while Dr. Teychenne placed weight on the tests he performed, he treated them as only a part of the process of diagnosis, to be viewed in the context of his clinical -- 11 of 23 -- 1 1 examination. In all of the circumstances I do not propose to treat Dr. Blue's evidence in relation to them as detracting from the weight of Dr. Teychenne's evidence as a whole, quite apart from the technical legal question of what use could appropriately be made of Dr. Blue's evidence having regard to the stage at which it was introduced. The essence of Dr. Teychenne' s evidence was that the plaintiff had many clinical features consistent with a lower lumbar disc prolapse and bilateral lumbar nerve root involvement. He said in his report of 14th February, 1990:- " ... it was apparent that the patient had sustained a lumbar disc prolapse in the accident on 1986 and that this had resulted in a right lumbosacral radiculopathy and at a later stage a left lumbosacral radiculopathy. It was apparent that he had most probably sustained a lumbar disc prolapse as a result of the accident in 1979 resulting in a right lumbosacral radiculopathy but this was improving at the time of the second accident in 1986. I suspect the patient sustained further disc prolapse in 1986 resulting in a persistent right lumbosacral radiculopathy which had apparently been episodic and therefore most probably intermittent prior to 1986. The accident in 1986 had also resulted in a persisting left lumbosacral radiculopathy which had not been present prior to 1986. I suspect therefore that the patient sustained a significant disc prolapse in 1986 to result in a persisting right lumbosacral radiculopathy and the onset of a left lumbosacral radiculopathy." He also suspected that he had an exacerbation of the disc prolapse which probably occurred in the accident in 1979. He expressed the opinion that the second accident in 1986 resulted in an increasing deficit in the right leg and a deficit occurring in the left leg. He went on: "I suspect the patient was significantly incapacitated as a result of the accident in 1986 which may not have been the case as a result of the accident in 1979." -- 12 of 23 -- 12 Accepting Dr. Teychenne' s clinical and experimental findings as to the nature of the injury, one is faced with the question of the weight of his conclusion as to causation having regard to the history that he acted upon in forming that conclusion. The problem, it seems to me, is that the history given to him, upon which he not unnaturally acted, and the evidence before me as to the plaintiff' s actual condition are widely divergent. One cannot reconcile the evidence before me pointing to a person who could not work for a very extended period prior to the 1986 accident and who returned to work with difficulty for two months prior to that accident with the person described to Dr. Teychenne who had "apparently continued to work" subsequent to the 1979 and 1980 accidents and whose symptoms were at worst "episodic and not incapacitating". When asked to consider the matter on the former basis, Dr. Teychenne regarded it as hypothetical having regard to his belief as to the facts and felt unable to express an opinion. It is clear from this that Dr. Teychenne assigned considerable significance to what he believed, on the history given to him, to be a substantial recovery from the effects of the 1979 accident. Dr. Packer, an orthopaedic surgeon, had seen the plaintiff on a number of occasions before the 1986 accident and after it. He was therefore in a position of special advantage concerning the former period. As to the latter period, he last saw him in March 1987, which was before the left side symptoms appeared. He said that after the accident the plaintiff had complained of more severe pain which the plaintiff ascribed to the need to use -- 13 of 23 -- 13 crutches while his leg was in plaster. He expressed the opinion that any aggravation of the plaintiff's back condition as a result of the 1986 injury was temporary and that he was likely to revert to his former condition. The following then appears:- "You expressed the opinion that any aggravation of his back condition was temporary and that he was likely to revert to his former condition?-- Yes. On what do you base that?-- There is basically no difference in his clinical symptoms and signs at the time after the accident in 1986 to that when I saw him prior to 1986. You did examine him before 1986 in relation to his earlier injury or to an earlier injury?-- Yes. I think I first saw him about 1980. By comparing his condition after the 1986 injury to what it was before, you formed that view?-- Yes. I feel there was no difference in his condition. What would you say to the view that his back condition was very substantially worsened by this 1986 incident?-- I think his complaints were worsening. His symptoms may well have been worse, but there was nothing to substantiate his symptoms on my examinations." Dr. Packer said that he accepted the complaints that the plaintiff was making but on the basis of his physical examination felt that there was "perhaps considerable exaggeration of complaints". He later said: "I accepted the complaints but I interpreted them in a way that I felt that they were being exaggerated." Dr. McMeniman said that the plaintiff's basic problem was that he had degenerative disc disease dating from the 1979 accident. The 1986 injury would have aggravated the back pain for a period but in Dr. McMeniman's view it would have only been for a short period. -- 14 of 23 -- 14 Dr. Blue expressed the opinion that there was gross over-presentation in the plaintiff's symptoms and disability and that in his opinion the incident of June 1986 had not resulted in any significant function or loss in his back or either lower limb. He was unable to find any clinical findings to suggest that there was any compromise of sciatic nerve roots. In his oral evidence he said that he did not think that there was anything wrong with the plaintiff's back now and did not think that there ever was. He conceded that there may have been some temporary injury of his back following the fall in 1986 but it certainly would only have been temporary. Dr. Blue expressed the opinion that there was no difference between the CT scans taken in 1983 and 1988. He considered the CT scans to indicate a minor annular bulge well within normal limits at the L4-5 and sacral levels without any compromise of any nerve root there. The plaintiff also complains of soreness in his right knee following the accident. Dr. McMeniman found that there was quite marked patella femoral crepitus. He attributed this to degenerative changes associated with immobilisation. He also noticed wasting of the quadriceps and calf muscles and attributed this to immobilisation as a result of the 1986 injury. Dr. Packer noted wasting to the muscles of the right leg and also thought that this was due to the immobilisation following the fracture. So far as the knee was concerned he was of opinion that the symptoms were not there in 1983 and that it was attributable to the fracture and the treatment of the fracture. He was asked about the possibility of the need for a knee -- 15 of 23 -- 15 replacement at some future time. He said that it was "most unlikely". Dr. Guirgis said that the plaintiff complained of painful stiffness and a sense of weakness of the right knee. He said that it was a soft tissue contusion of the knee joint triggering symptoms of or aggravation of a pre-existing condition of chondromalacia. He said that the injury would predispose the plaintiff to development of osteoarthritis and that he would expect a total replacement of the knee in 15 to 20 years time. He said that the cause of the problem with the knee was malalignment of the right leg following the accident which would alter the incidence of the load on the knee and cause pressure which started the changes that were observed. None of the other orthopaedic surgeons accepted that there malalignment. He also noticed wasting was any significant of the quadriceps. Dr. Blue did not observe the presence of crepitus in the knee although the plaintiff complained of pain in the knee, which Dr. Blue agreed would be a symptom of chondromalacia patellae. The weight of the evidence points to a direct link between the injury to the tibia and the symptoms in the knee. On the material before me I consider it unlikely that the injury is of such severity that Dr. Guirgis' prediction of total replacement in 15 to 20 years is established satisfactorily. I will allow a small amount in general damages against that risk but I do not propose to treat that prediction as established. So far as the discomfort of the left leg is concerned, it appears that this arose some 20 months after the accident, in February 1988. According to Dr. Guirgis the plaintiff began to -- 16 of 23 -- 16 feel symptoms of numbness in his left leg consistent with left LS nerve root involvement. Dr. Teychenne observed decreased recruitment pattern in the muscles but noted that nerve conduction was normal. I am satisfied that such symptoms do exist. The question is the causation of them. There is evidence that in July 1988 the plaintiff suffered a severe onset of pain after sneezing or coughing. That of course was after the onset of the symptoms in the left leg, although that was not always clear during the course of the trial. In the absence of any other suggested cause it seems that the evidence on the balance of probabilities links the symptoms to problems with the plaintiff's back. The evidence also supports the view that it is unlikely that such symptoms would develop so long after the 1979 injury without some further trauma. Therefore in the absence of any other suggested cause I am satisfied that those symptoms are a consequence of the fall in 1986. There is nothing to support a finding that they are, of themselves, disabling at the present time. The extent to which these orthopaedic findings are relevant to the question of damages will be explored later. I turn now to the evidence of the two psychiatrists. Dr. Jenkins first saw the plaintiff on 15th August, 1984. Amongst other things he complained at that time of a painful back for which he was taking pain killers. He described it as a pain in the lower back going down his right leg as far as the knee. On this occasion he referred only to the 1980 incident in which his foot was injured. He told Dr. Jenkins that prior to his accident he had never experienced any serious illness or other -- 17 of 23 -- 17 accidents. Dr. Jenkins concluded at that time that there was some conscious exaggeration of the plaintiff's disability. He reported at that time:- "In my opinion, there is some conscious exaggeration of his disability ... but I am of the opinion that he has a psychogenic factor in relation to the disability in his right foot - that is to say that although he has a significant injury there this is complicated by an hysterical reaction which has resulted in a chronic inability to adjust to this injury. In my opinion, this probably will remain unamenable to treatment and I think it is doubtful that settlement of his claim will have any effect upon the disability in the right foot resulting from actual injury and hysterical reaction." When Dr. Jenkins saw the plaintiff again on 29th April, 1988 he mentioned the 1979 injury. On this occasion Dr. Jenkins concluded that he had an actual physical disability and in addition to that he had developed a chronic pain syndrome. By that he meant he had a type of hysterical neurosis in which the pain from actual physical causes was escalated and propagated by chronic anxiety over his physical status. condition to be chronic and intractable. He considered the This report was prepared for the Department of Social Security in connection with an application by the plaintiff for an invalid pension. Dr. Jenkins was asked in cross-examination about the lengthy absences from work from 1983 through to 1986. He agreed that the chronic pain syndrome "would certainly be involving his back" during those periods having regard to his lengthy absences. However he was of the view that the incident in 1986 would have aggravated the chronic pain syndrome. Dr. Jenkins also said that the plaintiff told him that when he had returned to work immediately prior to the 1986 accident that he was having pain in his back and his leg. He attributed -- 18 of 23 -- 18 the fact that he had remained at work to motivation on the part of the plaintiff to get himself back into employment. The circumstances in which he went back to work in April 1986 have been previously described. Dr. Quinn who had seen the plaintiff on numerous occasions from 13th November, 1987 onwards said that the plaintiff had a severe psychosomatic disorder. He said that the plaintiff kept stressing that he was worse since the 1986 accident. He had read the judgment of Williams J. as well as relying on the plaintiff's information. He conceded that he was not in a position to say what the plaintiff's condition was prior to the 1986 accident. He said that he did not recall if he had been told how long the plaintiff had been back at work prior to the 1986 accident. Dr. Quinn, on the basis of what the plaintiff told him and Williams J. 's judgment, formed the opinion that he did not have the same degree of psychosomatic symptoms prior to the accident. He said that given the repeated exposure to accidents of the plaintiff it was reasonable to form the opinion that probably he was more vulnerable to an increase in his psychosomatic disorder following the 1986 accident. Having regard to the evidence that I have outlined above I am satisfied that the plaintiff had degenerating disc disease and was suffering from discomfort in his back prior to 1986 and that such discomfort was substantial. He had lengthy periods off work in the years immediately preceding the 1986 injury. He returned to work because of economic necessity and, as he told Dr. Jenkins, he was working under difficulties when he did -- 19 of 23 -- 19 return. At that time and for some time previously he had been suffering from chronic pain disorder. He then had the fall which broke his leg. In that fall there was, on the balance of probabilities, some temporary aggravation of his earlier back symptoms. His evidence was that the symptoms in his back and leg were worse after the accident than before. There is objective evidence supporting the development of persisting symptoms of nerve root involvement on the left side some 19 months after the accident, which, on the balance of probabilities, were due to the effects of the fall. However, these symptoms are not by themselves disabling. As a result of immobilisation he now suffers some discomfort and soreness in his right knee. So far as his back and the pain therefrom is concerned I am not prepared on the evidence to find that there was any permanent aggravation or significant deterioration in his condition on the right hand side as a consequence of the accident. I am not satisfied that physical injuries in 1986 have converted him from a person with a long-term future as a member of the workforce to a person who cannot work as a result of the 1986 accident. The orthopaedic injuries have to be viewed in the context of the plaintiff's chronic pain syndrome. I accept that a person with chronic pain syndrome is vulnerable to an exacerbation of his condition if he suffers a further injury and that such exacerbation may be out of proportion to the physical effects of the injury. However, he suffered from that condition to a serious extent prior to the 1986 accident. -- 20 of 23 -- 20 I am satisfied that the combined effects of his disability to his back and his chronic pain syndrome prior to the accident meant that he had a very limited working life ahead of him at the time of the 1986 accident. I am satisfied that the extent of his chronic pain disorder prior to the accident meant that he would not have continued indefinitely as a member of the workforce. Any exacerbation of that condition by the 1986 accident must be viewed in that light. The question then is on what basis should he be compensated? In accordance with what I have found above, I am of the view that the plaintiff must be compensated for his fractured tibia and for the symptoms in the left leg and in the right knee which he did not have before the accident. Apart from that, I consider that any aggravation of his problems on the right hand side was temporary. There is evidence that a person with chronic pain syndrome is vulnerable to exacerbation of it by reason of his suffering further injuries. I take into account that the plaintiff's subjective feelings of pain appear to be worse since the accident and will include that in the damages for pain, suffering and loss of amenities. I award $15,000.00 under this head. I would treat $5,000.00 of this as past damages. Interest will be $1,000.00 on this. So far as loss of earnings is concerned, it was accepted that he would not in the ordinary course of events have returned to work before the 3rd April, 1987. The difficult question is what further sum should be allowed for loss of earnings for the period up to trial. It follows from the findings that I have made earlier that in my opinion and notwithstanding his subjectively increased feelings of pain following this accident -- 21 of 23 -- 21 the plaintiff's future in the workforce even if the injury had not supervened would not have been bright. The best that one can do is make an educated assessment of the length of time that the plaintiff would have spent in the workforce, given his pre-existing chronic pain syndrome, had the accident not occurred. I am satisfied that given the plaintiff's lengthy absences from work, his inability to work during that period, and the difficulty that he said he was having in continuing to work once he resumed a couple of months prior to the accident, it is unlikely that he would have worked for more than 12 months after the period of incapacity occasioned by the fractured tibia would have ceased. In so finding I have not overlooked the increased discomfort caused by the symptoms in the left leg and the right knee. The chronic pain syndrome which had already proved, in my opinion, to be a critical factor in the plaintiff's inability to work during the years before the accident would without contribution from those disabilities have caused him to cease work in the short-term in any event. The net amount that I will allow based on rates of a comparable employee, including overtime, and allowing for contingencies is $24,000.00. During the period 13th April, 1987 to 28th September, 1988 the plaintiff was paid sickness benefits totalling $17,205.66. He was then granted an invalid pension retrospective to the 11th December, 1986. The amount of sickness benefits paid was deducted from the amount that would have been due under the invalid pension. He was paid $12,984.75 up to the 30th June, 1990 and from that date the pension accrued at approximately $300.00 per fortnight to the date of trial. In addition, he was paid a gross sum of -- 22 of 23 -- 22 $12,719.63 to the 3rd April, 1987. It was accepted that all of these factors were relevant to the amount of interest which should be allowed. In my view it should be very modest. I propose to allow $350.00 in that regard. The sum of $12,719.63 in workers' compensation benefits is recoverable by the Board. There is a Fox v. Wood component which I assess at $1,920.00. In view of what I have found the plaintiff's earning capacity would have been non-existent in any event by the date of trial. Therefore, no question of loss of earning capacity for the future arises. The question of special damages was dependent on my findings to some extent. I allow the sum of $2,126.15 for medical expenses. Upon that sum I will allow $450.00 interest. So far as cost of medication is concerned I allow $7 50. 00, which includes a component for any amount that the plaintiff may have to pay himself in the future, although he is likely to remain on Social Security benefits. I will allow interest on that sum in the amount of $150.00. The costs of travel total $2,285.85. These were not disputed as I understand the submissions. I will allow interest in the sum of $675.00 on this. The total damages which I assess having regard to the figures that I have set out above amounts to $48,707.00. As I have indicated, the amount of $12,719.63 has been paid by the Workers' Compensation Board. I give judgment for the plaintiff in accordance with the above with costs to be taxed. -- 23 of 23 --