Ah Fook v TAC
[2021] VCC 1518
•15 October 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-00382
| TIMOTHY AH FOOK | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15, 16 and 17 September 2021 | |
DATE OF JUDGMENT: | 15 October 2021 | |
CASE MAY BE CITED AS: | Ah Fook v TAC | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1518 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment to neck and lumbar spine – issue as to Plaintiff’s credit – impairment consequences – retained capacity
Legislation Cited: Transport Accident Act 1988 (Vic); Evidence Act 2008 (Vic)
Cases Cited:Transport Accident CommissionvZepic (2013) 65 MVR 32; Richards v Wylie (2000) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; Haidar v Transport Accident Commission (2016) 77 MVR 121; Mobilio v Balliotis [1998] 3 VR 833; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Dressing v Porter [2006] VSCA 215; Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram QC with Mr T Nathanielz | Slater & Gordon |
| For the Defendant | Mr S Smith QC with Ms A Bannon | HWL Ebsworth Lawyers |
HIS HONOUR:
Introduction
1This is an application for leave to bring proceedings for damages pursuant to s 93(4) of the Transport Accident Act 1988 (Vic). The application is made by Mr Timothy Ah Fook in respect of a motor vehicle accident occurring on 19 October 2016. Mr Ah Fook brings his application on the basis that he has sustained a serious injury to the neck and spine.[1] He does not rely on any specific injury to his left or right shoulder, said to cause impairment consequences in his application.
[1]Transport Accident CommissionvZepic (2013) 65 MVR 32 at [11]
2The central issue between the parties was whether or not the impairment consequences suffered by Mr Ah Fook rise to the level that warrants a finding of serious injury. The Defendant submitted that Mr Ah Fook gave evidence that was unreliable and inconsistent, such that on the whole it could not be accepted, save where it was corroborated from independent sources. Once the evidence as to impairment consequences was isolated in this way the Defendant submitted that the residual impairment consequences were not more than considerable or marked.
3Next, the Defendant argued that the Plaintiff had sustained an associated injury, being a left shoulder rotator cuff tear, which caused impairment consequences which were impermissibly entangled with the impairment consequences said to flow from the neck and spinal conditions. In this way also, the Defendant submitted that Mr Ah Fook could not satisfy his evidentiary burden of proving that the impairment consequences flowing from the neck and spine injury were more than significant or marked.
4It is not in dispute that the injury occurred in compensable circumstances and is a permanent impairment. It is accepted that Mr Ah Fook bears the burden of proving on the balance of probabilities that the impairment consequences of the injury to his neck and spine, when judged by comparison with other cases in a range of possible impairments, at the date of the hearing can be considered “at least very considerable” and “more than significant or marked”.
5It is accepted that s 93(4)[2] requires that psychological consequences are to be ignored in determining Mr Ah Fook’s application in relation to the physical impairment of his spine. It is accepted that the principles of Richards v Wylie[3] are to be applied in assessing any mental impact of his physical impairment.
[2] Transport Accident Act 1988 (Vic), s 93(4)
[3] Richards v Wylie (2000) 1 VR 79
6I am required to consider the consequences to Mr Ah Fook, viewed objectively, arising from the injury to the neck and the spine. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbance or disorders.
7I have applied the principles identified by the Court of Appeal in Humphries & Anor v Poljak[4] in reaching my conclusions.
[4]Humphries & Anor v Poljak [1992] 2 VR 129
8I have considered all of the material in the Court Books which were tendered. I have only referred to the relevant parts of those tendered documents as is necessary in my judgment.
9For the reasons set out below, I accept the Defendant’s primary argument. Beyond that, it is not necessary to go further. As a result, I will deny the Plaintiff’s application.
Relevant Facts
Background 1973 – 2016
10Mr Timothy Ah Fook was born on 12 June 1973 in Samoa. He completed secondary school in Samoa and then worked in a bakery before moving to New Zealand in 2002. He lived in New Zealand between 2002 and 2012. During that time, he worked at a cardboard factory as a labourer fulltime. He is married and has six adopted children. The youngest child is aged nine and the eldest sixteen.
11Mr Ah Fook moved to Australia in 2012 and began work as a labourer at Cedar Meats. He described this work in his viva voce evidence as being required to stand at a bench slicing meat.[5] The meat came in 3 to 4 kilogram blocks and it was his duty to slice them into smaller 1 kilogram portions and then move them onto the next work station. He would then walk and obtain another 3 to 4 kilogram block of meat from another station, bring it back to his bench and repeat that task. The work was conducted in a cool room. He worked at this job at Cedar Meats from 2012 on a fulltime basis. He gave evidence that his wage was around $800 gross per week.
[5] Transcript (“T”) 9, Line (“L”) 18; T10, L17
The Motor Vehicle Accident on 19 October 2016
12On 19 October 2016, he was involved in a motor vehicle accident on the corner of Sayers and Tarneit Roads in Tarneit. The collision was violent. Mr Ah Fook described the accident as being struck on the left hand rear side of his vehicle causing his car to spin and impact with a pole. The vehicles were estimated to be travelling at around 60 kilometres per hour. The damage to the car was extensive and unrepairable.[6] The airbags deployed.
[6]Defendant’s Court Book (“DCB”) 156
13Mr Ah Fook was taken by ambulance to the Sunshine Hospital. He was admitted to the hospital with spinal trauma. An MRI of the cervical spine recorded the following:[7]
“There is significant interspinous soft tissue oedema from the levels of C2 to C6 level, in keeping with the moderate to severe grade interspinous ligament sprain/tear. The supraspinous ligament is intact. Moderate to marked right sided and minor left sided paraspinal intramuscular oedema is demonstrated at these levels also likely traumatic, combination of oedema and haematoma.”
[7] Plaintiff’s Court Book (“PCB”) 19
14Mr Ah Fook was placed into a hard collar and discharged after three days. He was referred to his treating doctor for ongoing care and then on to the Royal Melbourne Hospital. It was recorded by that hospital that Mr Ah Fook had sustained a “C6 left superior facet fracture”.[8]
[8]PCB 27
15It was thought that his cervical spine injuries would cause ongoing pain for several months.[9] He also complained of pain in the right and left shoulders, though the x‑ray was non-diagnostic for any particular organic problem at this stage.
[9]PCB 27
16Mr Ah Fook was referred for physiotherapy with Mr Darren Rose and first saw him on 14 November 2016. He had physiotherapy with Mr Rose on some 15 occasions between November 2016 and 17 July 2017.[10]
[10]PCB 46
17The cervical collar was removed after about six weeks and it appears that in early 2017 he returned to work at Cedar Meats on modified duties.[11] He continued on modified duties until September 2017.[12] It was noted by Mr Rose that he had not attended physiotherapy regularly and particularly had only been seen once since March 2017. He made the comment that Mr Ah Fook was managing his duties without treatment.[13]
[11]PCB 47. His affidavit is not precise on the return to work date but a certificate for modified duties was provided dated 3 April 2017.
[12] PCB 6, at paragraph [16]
[13]PCB 47
18The treating doctor notes, from the Werribee Medical and Dental Clinic of Dr Myra Mpungu, record that Mr Ah Fook had a prescription of Mobic for ongoing neck pain in about June 2017.
19His treating doctor notes do not reveal any ongoing attendances, during the course of the latter part of 2017, related to any neck or spinal problems.
20Mr Ah Fook remained in employment, working fulltime at Cedar Meats through 2018. He went to Samoa for a funeral in about March 2018. His affidavit deposed that he required prescribed pain medication in order to embark on this flight.[14] However, the treating doctor’s notes do not mention any prescription medication.[15] In evidence, he stated that he has only ever taken Panadol and Nurofen rather than prescribed pain medication.[16]
[14]PCB 6, at paragraph [17]
[15]PCB 111
[16] T118, L14-17
21He continued to see his doctors regularly through 2018 but there is no particular mention of problems associated with the neck and spine. Relevantly, however, on 20 November 2018, Dr Mpungu, took a history of ongoing left shoulder and above left scapular pain since the motor vehicle accident in the previous year. Diagnostic imaging showed that there was a full thickness tear of the left supraspinatus tendon.[17] This led Dr Mpungu to refer him to an orthopaedic surgeon Mr Audi Widjaja.
[17]PCB 33; PCB 108
22He consulted Mr Widjaja in January 2019.[18] He diagnosed the left shoulder partial tear as well as confirmed there was cervical disc protrusion with mild nerve root impingement at left C4, C5 and C6. He considered that the mainstay of treatment would be regular physiotherapy and referred him for steroid injection into the left shoulder.[19]
[18] PCB 33
[19] PCB 39
23Throughout 2019, he continued to see Dr Mpungu on a reasonably regular basis for a total of 13 attendances over the year.[20] Only on 8 May 2019, did Dr Mpungu record that there was neck pain with radiculopathy.[21] Otherwise, there was no recording of ongoing neck and spinal pain over the course of that year. However, there were reasonably regular attendances for a variety of other complaints.
[20] PCB 102-107. A total of 13 attendances – attendances on 22.02.19, 27.02.19, 03.03.19, 06.03.19,
24.03.19, 27.03.19, 07.04.19, 08.05.19, 03.06.19, 16.09.19, 02.12.19, 18.12.19 and 19.12.19.
[21]PCB 104
24The next mention of neck or spinal pain occurred when Dr Mpungu recorded, on 13 January 2020, that he had ongoing neck pain radiating to the left arm. [22] Ultimately, an MRI scan showed multi-level degenerative changes at the cervical level and minor neural compression at the left C4 nerve root.[23] He was referred to Mr Widjaja again and he saw Mr Ah Fook in May 2020.[24] He noted that there were pins and needles in the left upper limb diagnostic for radiculopathy from impingement at the cervical level. He recorded that Mr Ah Fook was taking paracetamol. He recommended physiotherapy for the left shoulder and neck, regular analgesia and an MRI.[25]
[22]PCB 102
[23]PCB 24
[24]PCB 36; PCB 101
[25] PCB 36
The Medical Condition
25Interposing in the chronology, it is accepted by the Defendant that there is cervical impingement resulting in some radiculopathy symptoms into the left arm.[26] Mr Russell Miller, in his report of 25 May 2020, found evidence of significant injury in the cervical spine. Mr Paul D’Urso found there was a significant disruption to the C5/6 facet joint.[27] Professor Stephen Davis, in his report of 14 November 2019, found ongoing neck and left shoulder pain. He found that at that stage, Mr Ah Fook was taking paracetamol or analgesia.[28] Professor Davis specifically found “there were no features of myelopathy or radiculopathy”.[29] However, he did consider overall that there was a significant injury to the C6 facet joint.
[26]T164, L29 – T165, L5
[27]PCB 78
[28]PCB 52
[29] PCB 52
26The report of Mr Peter Wilde dated 4 August 2021, for the Defendant, considered that there was a probable injury to the left C6 nerve root resulting in mild residual left C6 radiculopathy, principally causing neuropathic pain with an associated left rotator cuff tear.[30] He did, however, opine that the cervical pain was minimal and almost completely gone.
[30]DCB 13
A Change in Jobs: Cedar Meats to Bridgestone January 2020
27Returning to the chronology, the Plaintiff deposed in his affidavit material that the work that he was doing at Cedar Meats was physically very demanding. As a result, he decided to move to Bridgestone to work in tyre manufacture. He began this process in January 2020 by attending at a physical examination with Bridgestone’s nominated medical clinic. He was successful in this application to Bridgestone and ceased work at Cedar Meats and began at Bridgestone shortly thereafter.
28As set out above, when Mr Ah Fook applied for the job with Bridgestone in January 2020 he went for a pre-employment medical examination at the Bridgestone medical clinic, Sonic HealthPlus. That consultation occurred on 30 January 2020. He was first seen by a Ms Casey Morrison, who took basic information, such as blood pressure, pulse, height and weight. She then wrote the following:[31]
“MUSC AND FIT [I have assumed this means “muscular and fit”]
Good manual handling technique
Max safe assessed lifting capacity 40kg
Maxed out all testing
No significant physical limitations”
[31] PCB 124
29Mr Ah Fook then went to see Dr Sleshkumar Ramsurrun, after being assessed by Ms Morrison. He recorded the following:[32]
“came for pre-emplyment [sic] medical as a machine operator in
bridgestone [sic]
no issues noted
has apssed [sic] the phsysical [sic] and noraml [sic] requirements of the job
fit for job”
[32] PCB 124
30His first affidavit, sworn 22 September 2020, did not descend to commenting on the examination that he had had at the Sonic HealthPlus clinic.
31He was successful in obtaining the job at Bridgestone and began working there shortly afterwards. He described his job at Bridgestone as being a machine operator.[33] His job was to take tyres from a machine to various stations and ultimately place them into a machine where they were machined in some way. His affidavit did not descend to detailing the work he does as a machine operator at Bridgestone. He simply noted that it was less strenuous than the physical labour he had done at Cedar Meats. He gave evidence that while the machine at Bridgestone was loaded with the tyre he would have to watch it intently by inclining his neck forward.
[33] T14, L2-15. The Plaintiff gave evidence that he has always been in the same role.
32In June 2021, only three months prior to the trial, the Plaintiff sought to change jobs within Bridgestone to become a “Skiver”. This job required him to perform similar duties as those described above.[34] In order to do so, he was required to take a further medical examination at the Sonic HealthPlus clinic. That examination occurred on 7 June 2021.[35] The Plaintiff first saw Ms Tilka Hassing, who took basic observations. There were also a number of forms completed at the time of this consultation.[36] The first form was titled Form “A” and was a medical history questionnaire. It was signed by Mr Ah Fook and the witness was noted to be Dr Caaren Chin. The next document was a “Form “B”, titled “Medical Examination” and it was signed by Dr Chin. It detailed the doctor’s findings as to basic health information, such as visual acuity, hearing, and an assessment of the cardiovascular system. It specifically included a section as to the musculoskeletal system which was broken into the cervical spine and lumbar and thoracic spine. Dr Chin there noted that flexion was normal, the central nervous system examination being for the upper limbs, was relevantly noted to be normal. Overall, Dr Chin considered that the proposed position of “Skiver” was within Mr Ah Fook’s capability. He then saw Mr Hoang Bui, a physiotherapist and/or occupational therapist, who recorded that musculoskeletal testing had been performed and recorded “No significant increase in injury risk for propsed [sic] role. No physical limitations identified, excellent manual handling technique”.[37] He recorded the following: “No physical limitations or restrictions identified during physical assessment”.[38] I will return to these documents, as a great deal of time was spent in cross examination on them.
[34] Ibid. It is not clear but I take the Plaintiff to mean the job description might have changed but the duties
remained the same.
[35]PCB 124
[36]DCB 103-108
[37]PCB 125
[38]DCB 105
33Mr Ah Fook was successful in his application to become a Skiver and has worked since that time with Bridgestone on a full-time basis doing overtime regularly.
34None of these documents or Mr Ah Fook’s changing roles with Bridgestone were referred to in the further affidavit that he swore in support of his application on 18 August 2021. It was unclear why not. Halfway through the cross examination of Mr Ah Fook, Senior Counsel for the Plaintiff, Mr Ingram QC, who appeared with Mr Nathanielz, made application to adjourn the trial in order to obtain evidence from Ms Hassing, Dr Chin and Mr Bui. At that stage, I asked counsel when the Plaintiff’s solicitor had become aware of the documents in question. Mr Ingram took instructions and advised me that the documents had been returned to the Court under subpoena on 20 July 2021, but were not inspected by his instructor until 23 August 2021. He specifically advised that he had been made aware of the documents on 28 August 2021. He did not indicate why no application had been made prior to the commencement of the trial to adjourn the matter to allow the information he now sought to obtain. He similarly did not advise any reason as to why a further affidavit of the Plaintiff had not been sworn, setting out the circumstances of any of the consultations at the Sonic HealthPlus clinic. In any event the Plaintiff’s application to adjourn was denied and the cross examination continued.[39]
[39] An oral Ruling was made during the course of the trial and is contained in the transcript.
The contentions of the parties
35The Defendant’s first argument is that the impairment consequences of the accepted injury do not rise to the level to be considered a serious injury. It is accepted between the parties that the Plaintiff suffered an injury to his neck that has led to a degree of impingement. That impingement has led to some feelings of numbness and tingling in the left arm. The Plaintiff accepts that any impairment consequences arising as a result of the left arm must be because of the injury to the neck and must not stem from the left shoulder rotator cuff injury. The parties are agreed on this position.
Are the impairment consequences serious?
Credit
36Turning now to isolate and assess the impairment consequences that the Plaintiff complains about. As part of this task, it is necessary to make findings as to the reliability and consistency of the Plaintiff’s evidence. The credit of a Plaintiff in serious injury applications is often critically important.[40] This is particularly because the opinions of medical experts rely on receiving an accurate history from the Plaintiff.[41]
[40] Haidar v Transport Accident Commission (2016) 77 MVR 121 at [30]
[41] Mobilio v Balliotis [1998] 3 VR 833, 836
37The term “credibility of a witness” is defined to mean “the credibility of any part or all of the evidence of the witness, and includes the witness’s ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence.”[42] Matters which relate to the credibility of a witness include, inter alia, truthfulness or veracity, motive to be untruthful, prior statements either consistent or inconsistent, internal inconsistences and ambiguities in testimony and direct contradiction within testimony.
[42] Evidence Act 2008 (Vic) sch 2
38Overall, I find the evidence of Mr Ah Fook unreliable, ambiguous and inconsistent.
39As to his unreliability, the evidence given by the Plaintiff during cross examination was at times confused and overall unhelpful. The best example of this occurred when the Plaintiff was taken to the documents beginning at Defendant’s Court Book (“DCB”) 103, being the three forms filled out at the Sonic HealthPlus clinic on 7 June 2021. As previously set out, no mention of these documents or the new job at Bridgestone was mentioned in the Plaintiff’s further affidavit, sworn on 18 August 2021. However, in cross examination, the Plaintiff was asked how the form, particularly the Form A at DCB 103, a questionnaire, came to be filled out. That questionnaire required responses to a number of different questions asking after the health and medical history of the patient. The Plaintiff’s first version of events confirmed that the writing on the form was his at the top and it was witnessed by someone else at the bottom.[43] Thereafter, however, the evidence was confused and conflicting. The Plaintiff was asked, fairly openly, who filled the form out.[44] He then gave a number of different versions. The first was that he had taken the form home and filled it out with his wife, given that he did not read English.[45] However, after the lunch adjournment, there was a second version – the Plaintiff then said that he completed the form by himself and his wife only assisted him with one question.[46] The Plaintiff then changed his story to provide a third version and said that he completed the form by himself and never asked for his wife’s assistance.[47] On that version of events, he simply ticked all the boxes, denying that he had any problems with his musculoskeletal system, as he was very keen to get the job with Bridgestone. In evidence he said that he “gambled” that ticking “no” to all the boxes was the correct way to answer the Form A.
[43] T41, L5-8; T31, L22-24
[44] T31, L14-15; T31, L26-27
[45] T31, L30-31
[46] T38, L31 – T39, L18
[47] T49, L6-16
40When asked by Mr Smith QC, who appeared with Ms Bannon for the Defendant, why his evidence had changed, Mr Ah Fook said he was confused because he was not sure which form Mr Smith was referring to.[48] This is despite the fact the Form A was on screen in front of him and he had been taken to it numerous times. I do not accept the Plaintiff’s explanation as to being confused.
[48] T50, L4-13
41The fourth version, which Mr Ah Fook gave on the third day of trial, was that he actually did not take the form home at all, but filled it out in the doctor’s surgery on the morning of his appointment.[49] Once again, he confirmed that he did not read or understand the form, but simply ticked all the boxes, taking a “gamble” as to the answers.[50]
[49] T139, L26-30; T140, L4-6
[50] The word “gamble” was used by Mr Ah Fook himself
42It can be accepted quite readily that the Plaintiff, a man with six children, keen for work that paid well, with the opportunity for overtime, would attempt to convince an employer that he was in good health. However, in making that attempt, for a position which was so important for his family’s financial wellbeing, it could be thought that he would check with his wife to ensure that he answered the Form “A” correctly so as to ensure that he presented the best picture of himself. This could also be expected, given his wife was bound to know of his reading difficulties. In the end, while that much can be accepted, the variety of different reasons proffered by the Plaintiff in respect of a form completed only some twelve weeks prior to trial, left me with the strong impression that Mr Ah Fook’s evidence was confused and unreliable.
43As to the ambiguity and inconsistency in his evidence, an example of this arises in the first affidavit of the Plaintiff, where he deposed to requiring prescription medication in order to go to Samoa. The treating doctor’s notes do not support this assertion. In fact, the treating doctor’s notes suggest that there has been only sporadic prescription of strong painkilling medication. I, then, do not accept the Plaintiff’s evidence in his affidavit of the requirement for prescription medication on an ongoing basis, which was required for him to go to Samoa. Rather, I accept that he has required, on occasion, prescription medication, but the vast majority of the time his condition is managed with Panadol and Nurofen. As I have set out above, there is no evidence as to the long term frequency or the intensity of his Panadol use. Given this I cannot be certain that it meets the requirements of being a very considerable consequence.[51]
[51] Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at [199]
44Further examples of the ambiguity and inconsistency in the evidence arise when considering his evidence about the work he did at Cedar Meats after his return to work and his subsequent duties at Bridgestone. I have set these out below during the analysis of his alleged impairment consequences.
45Findings as I make to the veracity of the evidence given by Mr Ah Fook must be connected to the ultimate findings of fact as to the impairment consequences complained of.[52]
[52] Dressing v Porter [2006] VSCA 215 at [41] per Ashley JA
46My findings as to the lack of credibility of Mr Ah Fook’s evidence mean that I cannot rely solely on the matters deposed to in the affidavit or during his viva voce evidence, but rather find that there needs to be corroborating evidence regarding these matters before they can be accepted.
47I have analysed the impairment consequences deposed to by Mr Ah Fook by reference to each category referred to in his affidavits.
Work capacity
48The first consequence complained of is that he has had to move jobs from Cedar Meats to Bridgestone by reason of his injury.[53] He deposed in his first affidavit that he found the operating of machines at Bridgestone to be less strenuous than the physical labour he did at Cedar Meats. This proposition came under heavy attack by the Defendant. It relied on a number of matters in the course of that attack. The first was that the Plaintiff gave conflicting evidence during cross examination as to the work he did at Cedar Meats after his injury. He first gave evidence that he returned to his normal full duties job after the incident.[54] This was slicing 3 to 4 kilogram blocks of meat into 3 or 4 slices upon his return to work after the incident. In this position, he accepted he was leaning over a bench cutting and carrying meat repeatedly. However, later in his evidence, he stated that, in fact, after he had returned to work from his injury, he was given “very light and very easy” work packaging small mince parcels.[55] He was then asked why it was that, if his work was so light at Cedar Meats, he moved to Bridgestone. He conceded in cross examination that he moved to Bridgestone by reason of the increased pay and ability to support his family.[56] He then modified that to state that it was the cold conditions at Cedar Meats and higher pay at Bridgestone that were reasons for him leaving Cedar Meats.[57] It is to be noted that nowhere in his affidavit material does he depose to the “very light and very easy” work with mince, or the fact that the cold was a factor at Cedar Meats, or the fact that he could earn more money at Bridgestone, as the reasons to change jobs.
[53] PCB 7, at paragraph [24]
[54] T102, L13-16
[55] T104, L26 – T105, L3
[56] T106, L1-3; T107, L14-15
[57] T106, L13-17
49The changing evidence, and the very significant omissions from the Plaintiff’s affidavit raise real doubts as to whether the statement in his affidavit, that he left Cedar Meats because it was too strenuous, is made out. There are further doubts raised because of the second attack made by the Defendant on the veracity of the affidavit which involved a comparison of the affidavit and the notes and forms in the Sonic HealthPlus medical centre records in January 2020 set out above at paragraph [29], that records a physical assessment with no limitations imposed according to Dr Ramsurrun’s note. In the context of the examination this is an important finding. Clearly Bridgestone wanted an assessment of prospective workers at a consistent medical practice that was well versed in such assessments. This is why they had required all his pre-employment medicals to be conducted at the Sonic HealthPlus clinic. It is likely that practitioners at that clinic were also used to performing such assessments and knew that physical capability was a key factor in the hiring of workers for Bridgestone. In those circumstances the assessment was unlikely to have been anything other than accurate. I consider this independent evidence that the Plaintiff was well able to cope with the demands of the Cedar Meats work – no matter if this was the meat slicing work or the “very easy very light” mince work. Allied with and supporting this finding is the fact that, at this stage, around the end of 2019 and the beginning of 2020, his treating doctor notes do not reveal any ongoing consultations in respect of neck pain or the prescription of pain medication.[58] On this point, the Plaintiff gave evidence in cross examination, that whenever he had pain, he went to see his treating doctor. However, a perusal of the treating doctor notes show only very scant reference to complaints of neck pain from 2016 to the time of trial. There is certainly no ongoing prescription of significant pain medication. This also is inconsistent with the Plaintiff’s evidence that if he was in serious pain, which he described as “debilitating”[59] that he always went to the doctor when that pain occurred. If that was so then there could be expected to be, in his treating doctor notes, reference to that neck pain. Rather, the notes show ongoing consultation for a variety of different problems, but no mention of neck pain. For all those reasons I cannot accept the Plaintiff’s evidence on this point and I find, that he did not leave Cedar Meats because of his neck and spine injury.
[58] There is only one reference to neck pain on 13 January 2020 at PCB 102 and one reference to ongoing
left shoulder pain on 2 December 2019 at PCB 103
[59] PCB 7, at paragraph [27]
50The next consequence that Mr Ah Fook complains of is that he requires ongoing physiotherapy and pain medication (Panadol and Nurofen) to treat his neck and spine condition.[60] The physiotherapy treatment appears remarkably inconsistent. There were some sessions by Mr Rose initially after the injury, but thereafter his attendance appears extremely sporadic. In fact, in the report from Symmetry Physiotherapy (the second physiotherapy provider), Mr Savita Basu records that there was apathy and disengagement in the behaviour of Mr Ah Fook towards physiotherapy.[61] I also note that despite Mr Widjaja recommending ongoing physiotherapy for at least 6 to 12 months this was not followed up by Mr Ah Fook. Mr Ah Fook maintains that he did not continue with physiotherapy because he did not have the funds. However, previous physiotherapy had been paid for by the TAC and there was no indication why no further application had been made for funding of physiotherapy, or that it was in fact ceased as part of his TAC payments. Overall with such contradictions and gaps in the evidence I do not accept that physiotherapy was not pursued for the reasons that Mr Ah Fook gave. Rather I find that he most likely did not attend physiotherapy as his condition was not as serious as he has given evidence about.
[60] PCB 7, at paragraph [23] as to physiotherapy and paragraph [26] as to Panadol
[61]PCB 48
Pain
51Turning to the pain medication. The affidavit material does not disclose how much Panadol (or Nurofen) is taken and with what frequency. I accept that he takes these medications regularly as he has deposed.
52The next impairment consequence he deposed to was that he had difficulty lifting his head upwards or bending his head downwards, and that if he did, it caused “debilitating pain”.[62] However, in cross examination he gave evidence that while at Cedar Meats from 2017 until January 2020, he stood at a bench with his neck bent forward to look at where he was cutting or bagging meat.[63] He gave evidence that at Bridgestone he was required to stand and watch the machine processing the tyre for one to two minutes at a time, and he did perhaps ten tyres per hour every day. I find it incongruous that if he was suffering such debilitating pain, no complaint was made to his doctor and no prescription for strong pain relieving medication was made, or that he would not pursue physiotherapy as recommended by Mr Widjaja. Once again, this inconsistency was not explained in his affidavit material and in viva voce evidence he did not explain adequately, or at all, why he did not make complaint to his treating doctor.
[62]PCB 7, at paragraph [27]
[63] T13, L10-14
53The general submission made as to why no complaints were made, was that the Plaintiff was a man with six children who simply needed to get on and work as best he could. This was in the context where no doctor had suggested a particular surgical procedure that would relieve his situation. In response, the Defendant pointed to the fact that Mr Widjaja had not only suggested ongoing physiotherapy to ease his neck pain, but had also suggested a steroidal injection to ease some of the left shoulder pain. Despite those recommendations being made, Mr Ah Fook had taken none of them. This was put to Mr Ah Fook in cross-examination.[64] He gave evidence that he did not want to get the steroid injection because he was scared of the injection, and furthermore it was a course of treatment rather than one injection.[65] However, it was pointed out that he received injections for immunisation in order to travel to Samoa during this time, which did not seem to pose a problem for him. Mr Ah Fook was not able to answer why he was willing to take an immunisation injection, but not an injection to potentially alleviate his “debilitating pain”. This was a further area of inconsistency which did not give me confidence in accepting his evidence. As a result of the matters set out above, I do not accept the Plaintiff’s categorisation of the pain as “debilitating” or the circumstances of when such pain afflicted him. Necessarily, I do not accept that the pain was of the severity, intensity or frequency that he gave evidence about.
[64] T129, L14-16
[65] T130, L12-14
Other consequences
54He next deposed, as to his impairment consequences, that any task that involved pushing, pulling or lifting his arm, he found difficult.[66] However, his affidavit did not descend to identifying when he encountered such activities in his life and what consequence that has for him. For example, in cross examination, he was taken to the tasks he had to perform at Bridgestone. Those tasks involved manual handling of tyres from a machine onto benches and then into other machines. It could be thought that handling tyres, potentially ten per hour, in a variety of different ways, would constitute pushing, pulling or lifting with his left arm. It could be thought that his spine and neck injury, and the resultant tingling in his left arm, might make those tasks difficult. However, the affidavit did not descend to describing those difficulties in detail, or in what way his work was impacted by the neck and spine injury. Similarly, he deposed that he tries to avoid heavy lifting or bending to stop his back pain from coming on.[67] However, once again, given the work that he does, it is difficult to see how he can avoid heavy lifting or bending. It was put to him that the work lifting tyres, often involving truck tyres, must have been heavier than the work he was doing at Cedar Meats. He accepted this.[68] Given this, it is hard to see how he can avoid the basic tasks of his job at Bridgestone given his injuries, and his affidavit does not say what consequences result from him having to actually perform this lifting and bending work. This reveals an inconsistency in the evidence Mr Ah Fook: how could he perform the physical tasks demanded of him and yet not register any complaint with his doctor or perform the recommended treatment course?
[66] PCB 8, at paragraph [28]
[67] PCB 8, at paragraph [30]
[68] T108, L3-12
55He next deposed, as being an impairment consequence, that he is limited in his household duties. However, the affidavit simply notes that he is limited due to his “physical restrictions”. There is no differentiation between the impact of the left shoulder injury and the neck injury on causing these restrictions. However, even taking this at its highest, as being a description of impairment consequences relating to the neck and spine, he simply deposes that he struggles with mowing or other tasks that require standing for long periods of time. There is no indication that he cannot mow or what these other tasks are that require him to stand for long periods of time or, for that matter, what constitutes a long period of time. He deposes with some specificity that driving for more than thirty minutes aggravates his neck pain. How often that situation arises, and in what way it impairs him, is not specified. For example, does the pain last for any substantial period of time or is it immediately alleviated once he stops driving or, for example, he takes some Panadol?
56Next, he does depose that the pain in his neck causes difficulty in sleeping. It deprives him of a significant amount of sleep, and he is reduced to around four hours sleep at a time. He deposes that this causes him to be lethargic and he struggles to concentrate. This is corroborated by his wife’s evidence.
57Lastly, he deposes to not being able to participate in social rugby, cricket and volleyball. This seems to be as a result of the combination of his neck and left shoulder pain. This is a significant consequence for him, as he has young children and socially is involved with his church, where these activities are an integral part of their community. His wife’s affidavit similarly confirms these matters.
58The Plaintiff put that a large number of these consequences were not challenged by the Defendant while the Plaintiff was giving evidence, nor was the Plaintiff’s wife called and her evidence in support challenged. However, I consider that the Defendant very clearly put to Mr Ah Fook that his evidence as to the effects of the neck injury was unbelievable and therefore the substance of the affidavits, which I have set out above, were similarly not a true reflection of the impairment consequences of his injury. While it is true that Mrs Ah Fook was not called her affidavit was similarly vague as to the specifics of the impairment consequences sustained as a result of the neck and spine injuries. Her affidavit provided no real further detail and because of this, I find it is of little use in isolating and determining the impairment consequences suffered by Mr Ah Fook.
59It is also necessary to analyse the impairment consequences in accordance with the principles of Richards v Wylie.[69] This permits seriousness to be measured in part by the mental response to a physical impairment.[70] Dr Serry provided a medico-legal psychiatric report dated 7 January 2020. In it, he took a history of Mr Ah Fook being stressed, worried and frustrated. He recorded that Mr Ah Fook reported concentration and memory problems. He considered there was a chronic adjustment disorder. These findings were largely replicated in his supplementary report of 3 June 2021. I have considered this material in the limited way permitted by Richards v Wylie.[71]
[69] Richards v Wylie (2000) 1 VR 79
[70] Ibid at paragraph [17] per Winneke P
[71] Richards v Wylie (2000) 1 VR 79
Findings as to impairment consequences
60Isolating the impairment consequences as a result of his neck injury, then, I find the following. He has pain, which requires the use of Panadol on a regular basis. He has a Deep Heat massage from his wife on a daily basis, and before going to work uses strapping about his neck and left shoulder. He struggles with driving for more than thirty minutes at a time and I find there are some limitations on his ability to do housework. He has decided not to pursue physiotherapy or the cortisone injections prescribed for the treatment of his neck and shoulder problems. He does get lumbar spinal pain on occasion. I find that his sleep is affected. I find some of his social sporting activities have also been affected. I find his neck and spinal injuries have left him stressed, worried and frustrated.
61As to what he has retained. I find that he did not change work to Bridgestone because of his neck injury. I find that was a decision made to improve his earning capacity, given his family situation. I do find that he has retained the ability to work in a reasonably physical and demanding job, performing fulltime work with overtime. I consider this a good indication that he has maintained a very high level of physical function and is able to push, pull and lift without restriction.[72] I find his pain is only modest. I find that he does not require physiotherapy for it, I find that he does not require prescription medication for it. I find that while he has had difficulty performing some household tasks, he remains able to do all of them. That is consistent with the fact that he does physically-demanding work in his job. Assessing the impairment consequences overall and synthesising the matters set out above, leads to my finding that while the impairment consequences could be said to be more than trivial, they could not be said to rise to the level to be considered “more than significant or marked”.
[72] Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12 at [77]-[78] per Ross JA
62For the reasons I have set out above, I decline the Plaintiff’s application and I find for the Defendant.
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