Ali v Victorian WorkCover Authority
[2023] VCC 603
•24 April 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-21-03431
| HAMIDULLAH ALI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 March 2023 | |
DATE OF JUDGMENT: | 24 April 2023 | |
CASE MAY BE CITED AS: | Ali v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 603 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – consequences – assault – course of employment – multiple injuries – pain and suffering – pecuniary loss
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013; Civil Procedure Act 2010 (Vic)
Cases Cited:RJ Gilbertsons Pty Ltd v Skorsis [2000] 12 VR 386; Petrovic v Victorian Workcover Authority [2018] VSCA 243
Judgment: Proceeding dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards KC with Mr C Farinaccio | Zaparas Lawyers |
| For the Defendant | Mr N J Dunstan with Ms K M Manning | IDP Lawyers |
HIS HONOUR:
Introduction – this proceeding and several claimed serious injuries
1This is a proceeding in which the plaintiff seeks a “serious injury” arising out of an employment scenario, specifically an assault at work and also the general nature of manual work duties. But it is perhaps more accurate to describe this as multiple proceedings, because two potential and separate common law causes of action were relied on, to have caused between one and seven separate claimed “serious injuries”.
2The plaintiff in this proceeding, Mr Hamidullah Ali, is now 28 years of age. He was born in Afghanistan, raised in Pakistan, and migrated to Australia at age thirteen. He first lived with his family in Swan Hill, before they moved to Melbourne, where he completed Year 12.
3After Year 12, the plaintiff completed a pre-apprenticeship course in plumbing and worked with a concreter. He then obtained employment in approximately 2017 with Ezy Tiling Pty Ltd (“the employer”). He was initially employed to do unskilled work but went on to complete a Certificate III in Tiling and then worked for the defendant as a qualified tiler.
4The plaintiff was working on Sunday 28 April 2019, at a job site in Doncaster. He was working with Mr Hamid Mirzie, who was his “boss”. Around lunchtime, there was an incident between the plaintiff and Mr Mirzie that may have been borne out of some form of “horseplay” but ultimately resulted in an altercation between the two men. The plaintiff was attacked by Mr Mirzie with a sharpened tile causing a laceration to his left forearm. He was also placed in a headlock and choked by Mr Mirzie (these events are referred to as “the assault”).
5Against that brief backdrop, this is a proceeding brought pursuant to s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
6The plaintiff claimed to have suffered a “serious injury” to one or more body functions, in more than one way.
7First, because of the assault, he claimed to have suffered a serious physical injury to each of the left elbow, left shoulder, neck and back.
8The plaintiff acknowledged that each of the physical injuries alleged to be causally related to the assault cannot be combined.
9The plaintiff submitted that the evidence, including radiological evidence, showed he “had pathology” in the left elbow, left shoulder (a tearing), neck and low back because of the assault.[1] In respect to the low back, the claimed injury from the assault was broadly described as the aggravation of a previously symptomatic degenerate low back condition.
[1] Transcript (“T”) 3, Lines (“L”) 8-23.
10Second, in addition, or perhaps in the alternative, the plaintiff claimed to have suffered a “serious injury” to the lumbar spine by reason of the general nature of his work duties with the employer (the ‘course of employment claim’). This is a different common law cause of action to the assault. No objection was raised as to the two causes of action being relied on for “serious injury” purposes in the one Originating Motion.
11Third, in addition, the plaintiff claimed to have suffered a “severe” mental or behavioural disturbance or disorder generally by reason of the assault (and injuries suffered) or related to the course of employment claim.
12The plaintiff seeks the leave of the Court to commence a proceeding for both pain and suffering and pecuniary loss damages, for a “serious injury” caused by one or both potential common law causes of action. He claimed to have no current work capacity from one or the other of the various claimed physical injuries, and alternatively the psychiatric condition.
13The defendant accepted the fact of the assault and the fact that it caused the plaintiff injury to the left elbow and possibly the left shoulder and neck. It disputed that any of those injuries persisted or produced ongoing impairment consequences that could be described as “very considerable”.
14Regarding the claimed injury to the low back, the defendant denied that the plaintiff had suffered a compensable low back injury either due to the assault or due to the nature of the work duties with the employer.
15The defence was built around a consideration of the evidence in the treating practitioner’s reports and clinical records after the assault.
16The defendant submitted that:
· any physical injury from the assault did not include the low back, was relatively minor, and had resolved by about late 2019;
· the plaintiff’s serious injury application had no support from the treating doctors’ material;
· the plaintiff had reconstructed a case principally for the low back that was built around voluminous medico-legal reports, and that those reports should be rejected after a consideration of the treating practitioner’s opinions; and
· the defendant’s medico-legal opinion was broadly consistent with the relevant treating material and so should be preferred and the evidence in those reports rejected any ongoing work-related compensable injury.
17The proceeding was conducted in the “usual” way. The legal principles are well- known and not in dispute. The plaintiff tendered affidavits sworn by him, his sister and brother. He also tendered medical reports and documents. He gave limited oral evidence. The defendant tendered its own medical reports and documents relied on.
18I have considered all the tendered evidence and the transcript of the plaintiff’s oral evidence, but I shall only refer to it to the extent necessary.
19I shall now turn to consider the evidence, in the context of the contentions of the parties as already set out.
The evidence of physical injury
The WorkCover claim
20After the assault, by Worker’s Injury Claim form dated 1 May 2019[2] the plaintiff made a claim for WorkCover benefits because of the assault. In that claim form, he described his injury/condition as “My left elbow” “neck”. That claim was accepted, and benefits were paid under the claim.
[2] Amended Plaintiff’s Court Book (“PCB”) page 402.
21One of the major issues in this proceeding was whether the plaintiff suffered a compensable back injury from the assault. On this topic, the defendant pointed to the failure to mention a back injury in the claim form as evidence that no such injury was suffered. The contents of the claim form in isolation do not decide this issue. But the fact there was no mention of a back injury in the claim form is consistent with the lack of contemporaneous evidence of a back injury because of the assault. It also highlights the core defence to this proceeding, namely that the objective evidence does not support the plaintiff’s claim for multiple serious injuries from the assault, or from the general nature of his work duties. In that sense, the claim form is part of the objective evidence, but the failure to specifically describe an injury by a lay person in an initial claim document is not evidence to which I attach much weight.
22Also, part of the objective evidence is the fact that the plaintiff never made a claim for injury said to have been caused by the general nature of his work duties.
The treatment after the assault
23The defendant placed emphasis on what is contained in the material from treating health practitioners in the first six to twelve months after the assault, and so it is convenient to first set out that evidence before dealing with the balance of the evidence. This is evidence upon which I do attach weight, as it is objective evidence of injury and treatment from practitioners who saw the plaintiff at an early stage and had the benefit of several consultations or attendances on the plaintiff.
(i) Box Hill Hospital
24After the assault, the plaintiff attended at the emergency department of the Box Hill Hospital (Eastern Health). The emergency discharge documentation[3] recorded him presenting with a laceration over the left elbow. That wound was cleaned and then stitched. He was treated and released from hospital with a WorkCover certificate for 10 days off work.
(ii) Dr Shahroze Khan
[3]PCB 61.
25Next, on 3 May 2019, the plaintiff attended a general practitioner, Dr Shahroze Khan, at Hampton Park. At that attendance, Dr Khan recorded the plaintiff had “injured left elbow at work, his boss and him had a fight and he threw a tile at him” and that the left elbow wound had been stitched. Consistent with what the Box Hill Hospital recorded, Dr Khan recorded that the wound was healing well. But he also recorded that the plaintiff had a complaint of neck pain.[4]
[4]Updated Defendant’s Court Book (“DCB”) page 216.
26The plaintiff was reviewed by Dr Khan throughout May, June, and July 2019. Dr Khan’s clinical notes during that period recorded persisting but improving elbow pain, a referral for physiotherapy, and a referral to a surgeon.
(iii) Mr Shodai Ishikawa/Complete Care Physio Group
27In accordance with Dr Khan’s referrals, the plaintiff next attended Mr Shodai Ishikawa, physiotherapist, at Complete Care Physio Group in Hampton Park on 23 July 2019 for left elbow rehabilitation.[5] Mr Ishikawa obtained a history of the boss throwing the tile and hitting the plaintiff’s elbow, and the treatment at hospital. He recorded that the plaintiff still had a feeling of pain.[6]
[5] PCB 75.
[6]DCB 212.
28There were further attendances on Mr Ishikawa through until 28 November 2019 when Mr Ishikawa moved overseas. The plaintiff was then seen at Complete Care Physio Group on one occasion by Mr Abdelmohsen Saad Amin on 9 December 2019. Mr Amin’s note of that attendance recorded the plaintiff was tender in the forearm when he used his hand.[7]
[7]DCB 213.
29Before moving overseas, Mr Ishikawa had written to Allianz Australia Workers Compensation by letter dated 16 October 2019,[8] and said that the plaintiff was fit to start light duties but not pre-injury duties. He also said the plaintiff should be able to gradually progress with the aim to return to pre-injury duties in the next 2−3 months.[9]
[8]DCB 214.
[9]DCB 215.
30Therefore, evidence of physiotherapy treatment in the period July to December 2019 is of treatment mainly to the left elbow, with an improvement but not complete recovery and a progression to a stage where the plaintiff was considered by the physiotherapist as fit at least for modified duties.
(iv) Professor Minoo Patel
31Next, again as per Dr Khan’s referral, on 4 September 2019 the plaintiff consulted Professor Minoo Patel, orthopaedic surgeon. Professor Patel wrote back to Dr Khan that same day,[10] describing that the plaintiff was a right-hand dominant tiler, allegedly attacked, and suffering an open laceration about 2 centimetres distal to the lateral epicondyle over the ECU muscle. Professor Patel said it had healed with secondary intention, and there was no local tenderness.
[10]PCB 67.
32Professor Patel recorded the plaintiff experiencing aching pain distal to the elbow. On clinical examination he noted a full range of painless movement. He described the symptoms as diagnostic of “posterior interosseous nerve compression syndrome”,[11] a condition he said often settles with conservative treatment. Consistent with that opinion, he gave the plaintiff a brochure for self-directed stretching and strengthening exercises and discharged him back to Dr Khan.
[11] PCB 67.
33Professor Patel reviewed the plaintiff on 12 December 2019, after a referral back to him from Dr Khan regarding the plaintiff’s left shoulder. Professor Patel offered an injection into the shoulder, but otherwise again discharged the plaintiff from his care.[12]
[12] PCB 69.
34The material from Professor Patel is consistent with that from the Complete Care Physiotherapy Group, namely of manageable and improving symptoms in the left elbow and no major problems with the left shoulder. It is also relevant that the plaintiff did not follow through with the recommended injection into the left shoulder, which suggests the symptoms were not too bad at that time.
(v) Dr Khan again
35Next in rough chronological order, returning back to the evidence in clinical records from Dr Khan, on 27 November 2019,[13] he noted the plaintiff as “looking for jobs”. On 24 December 2019, Dr Khan noted left elbow pain persisting, also ongoing left shoulder pain, and a WorkCover certificate for modified duties.[14]
[13]DCB 230.
[14]DCB 231.
36In a clinical record on 14 January 2020, Dr Khan noted that the left elbow movement was full. There was recorded a discussion with the plaintiff about a clearance for full duties, and what Dr Khan described in his note as “pt happy to try”.[15]
[15]DCB 232.
37Then, on 3 February 2020, Dr Khan noted that elbow pain persisted, with numbness in the fingers, insomnia and low mood.[16] On 8 February 2020, Dr Khan reviewed the plaintiff and recorded elbow pain persisting, numbness, seeing an osteopath and having acupuncture.[17]
[16]DCB 233.
[17]DCB 234.
38If I could stop the clock at this time, that is at 8 February 2020, then I would conclude that there was evidence of injury to the left elbow/forearm, and to a lesser extent to the left shoulder and neck, because of the assault. Treatment to that point had principally been physiotherapy treatment directed to the left elbow/forearm injury.
39If I stopped the clock on 8 February 2020, I would also conclude, on the evidence then available, of improvement or recovery from any assault-related injury, and that any residual symptoms did not at that time produce a “very considerable” impairment consequence and did not produce any permanent incapacity for work.
40Certainly, as at 8 February 2020, there was no real suggestion of ongoing treatment to the left elbow or neck. Apart from conservative treatment to manage the injuries, the only other suggested treatment to that time was the recommended shoulder injection, that the plaintiff had by then chosen not to have. There was some notation in clinical records of persisting pain or numbness in the left elbow, but also an expression by the treaters that the plaintiff was fit at least for modified duties, if not full duties. Also, by that date, there was evidence of the plaintiff suffering low mood and his family situation (see below) had become a concern for him.
41But also, as of 8 February 2020[18] there was no objective evidence of a work-related back injury either from the assault or due to the nature of the work duties.
[18] Other than reporting to Dr James Tran on 6 February 2020.
42But of course, the clock cannot be stopped, and like sands through the hourglass, so are the days of our lives.[19]
[19] Macdonald Carey, “Days of our Lives”, 1965.
43The sands of time raise the issue as to why after 8 February 2020 the plaintiff did not continue to improve from the assault injuries, and why he then went on to develop complaints of chronic pain in the left elbow, shoulder, neck and then severe pain in the back.
The plaintiff’s family situation
44It is convenient to interrupt the narrative of treatment for physical injuries to this point to say something about the plaintiff’s family situation in 2019 and into 2020. As mentioned, by 3 February 2020 Dr Khan had recorded “low mood”. By that time, the plaintiff had a major upheaval in his personal life.
45As became clear during the oral evidence, before the assault and unrelated to it, the plaintiff and his partner had decided to move to Sydney with their three small children, as his partner had family in Sydney. She was to move up in advance and settle in Sydney and the plaintiff intended to follow thereafter. The exact timing of those plans is a little unclear, although in his oral evidence the plaintiff said his family had moved up to Sydney in March 2019.[20]
[20] T 21, L 21.
46His partner and children moved to Sydney as planned, but when he went up to join them there was an unexpectedly hostile reception from his partner.[21] The exact details are unclear and not relevant to this proceeding. There was some sort of a domestic dispute, and an intervention order was taken out against him. The result is that he has effectively had no contact with his children for several years and now lives with his parents.
[21] T 21, L 12-14.
47Understandably, the disruption to his home life and lack of access to his children is something that the treating health practitioners recorded. At least in part, it resulted in referrals for psychological treatment.
(vi) Ms Shagufta Riaz
48The plaintiff attended Ms Shagufta Riaz, psychologist, in March 2021 at the referral from Dr Khan, for depression, anxiety and pain management because of workplace injury and chronic pain. In a report from her dated 1 January 2022,[22] she reported the events around his family moving to Sydney and that he had not seen his children since March 2019. In her reports, including two subsequent reports, Ms Riaz ascribed a psychological condition referable to the work injuries. But, in her report of 4 January 2023[23] she also mentioned consequences from relationship breakdown.[24]
[22] PCB 134
[23] PCB 148.
[24] PCB 152.
49In his first affidavit, the plaintiff attempted to implicate injuries from the assault as a cause of his relationship breakdown and the loss of contact with his children. He said the relationship broke down due to the impact of his injuries and financial difficulties.[25] But, on a consideration of all of the evidence, I do not accept that as accurate.
[25] PCB 14.
50What I do accept is that at about the same time the assault happened, or shortly after, the plaintiff had the rug pulled from under him when his partner ended the relationship and denied him access to his children. I also conclude that his emotional condition has contributed to his overall situation and perception of disability from any physical injury.
(vii) Dr James Tran – the first mention of back pain
51Returning to the timeline of treatment for physical injuries, the osteopathy treatment commenced with Dr James Tran at Doveton Osteopathy on 6 February 2020.
52Dr Tran provided a report dated 12 January 2022 in which he described the plaintiff as suffering from multiple injuries of “left tennis elbow, left rotator cuff and low back pain due to multi-level broad based disc bulges”.[26] He said that the repetitive bending as a tiler and the assault most likely caused the injuries. He said the left elbow and shoulder were not permanent and would get better with time, but that the low back would not get better. Because of the back, he said the only suitable duties would be “light duties standing and walking around”.[27]
[26] PCB 129.
[27] PCB 130.
53It is this history of low back pain by Dr Tran that is the first documented reference to low back pain. The lack of any complaint of low back pain prior to this time raises a ‘causation’ issue broadly regarding the link between any claimed low back injury and the work with the employer, or the assault.
54The treatment with Dr Tran concluded on 19 January 2021. It is unclear how many times the plaintiff attended Dr Tran.
55Dr Tran provided a second report dated 8 July 2022.[28] In the second report, he said the plaintiff presented on 6 February 2020 “mainly” with left elbow and forearm pain, neck and low back pain “due to multiple soft tissue injuries” and that the plaintiff had reported the assault and that all of his injuries had started since then.[29] In that report, Dr Tran repeated his diagnosis of “multiple injuries” of left tennis elbow, left shoulder rotator cuff, and low back pain due to multi-level broad based disc bulges. He said that:
“I believe that the repetitive bending and lifting as a tiler and the incident that was reported on 25 April 2019 where his boss assaulted him are most likely the caused [sic] for the ongoing injuries”.[30]
[28] PCB 131.
[29] Ibid.
[30] PCB 131.
56Dr Tran then set out his opinions regarding the prognosis for the injuries. Once again, he said he thought the left elbow and shoulder were not permanent but that the low back was permanent.[31] He said the plaintiff had a capacity for work from the left elbow, shoulder, and neck, but put restrictions on work from the low back.[32]
[31] Ibid.
[32] PCB 132-133.
57Dr Tran’s opinions provide limited support for an ongoing injury to one or the other of the claimed body functions when he last treated the plaintiff on 19 January 2021, but no real support that any injury other than the low back would be permanent or “serious”.
58But Dr Tran’s opinions do not separate what low back impairment was caused by the work duties from what was caused by the assault. So, in that regard they do not assist as he has combined the two potential causes of action. His opinions are also out of date, having not seen the plaintiff now for over two years. His opinions also do not support the plaintiff’s claim of ongoing and chronic pain in the left elbow, shoulder, and neck. His view that the left elbow and shoulder should improve is consistent with the other treaters to this point.
(viii) Dr Khan and the first mention of the low back
59Returning again to Dr Khan’s treatment, on 28 March 2020,[33] he referred the plaintiff to Precision Brain, Spine and Pain Centre with what he described as a presenting problem of “ongoing left elbow pain radiating to his shoulder since many months following injury at work. He has developed chronic pain and reactive anxiety and depression.”[34]
[33]PCB 79.
[34]Ibid.
60This referral highlighted widespread complaints of pain – but not in the low back – that were becoming a feature of what was recorded by Dr Khan by March 2020, as well as the plaintiff’s deteriorating mental health.
61There was a delay for some unexplained reason until the plaintiff attended Dr Ali Mehr, rehabilitation specialist at Precision Brain, Spine and Pain Centre, on 12 January 2021.[35] By the time he attended Dr Mehr, low back pain was becoming a focus of his complaints, as were more broad complaints of pain and psychological complaints. I shall return to Dr Mehr in a moment.
[35]PCB 97.
62But staying with Dr Khan and to continue the timeline, the plaintiff returned to Dr Khan on a date in October 2020, which was apparently the first attendance where Dr Khan recorded any complaint regarding the plaintiff’s low back. The clinical record of that attendance is not part of the evidence. The evidence of that attendance is in a report dated 18 May 2021,[36] where Dr Khan said:
“Hamidullah also complaint [sic] to severe lower back and neck pain in October 2020. He was referred for Scans which showed severe lower back disc disease. He was advised to see osteopath and given pain medications. He said that he used to wear heavy belt at work and his work involved repeatitive lifting and bending and caused him back pain. He said that he tried to keep working despite the pain. I do not think his lower back injury is accepted as a work cover claim as he presented with the complaint only in late 2020. His lower back disc disease may be contributed by his work which involved repeatitive lifting and bending and wearing a heavy belt. He was referred to Precision brain and spine for pain management to help with his elbow, shoulder and lower back pain.”
[36]PCB 85.
63The evidence in the clinical records and the report from Dr Khan as set out to this point provide context to the dispute before the Court, namely that the objective evidence after the assault and through to early 2020 is of improvement to the injuries affecting the left elbow and left shoulder, an emerging set of psychological symptoms and then an unexplained and delayed complaint of low back pain, first to Dr Tran on 6 February 2020, but then no mention to Dr Khan until October 2020.
64I will deal with the balance of the evidence in a moment, but before doing so it is convenient to complete a consideration of Dr Khan’s evidence, because it neatly highlights again the core issue in this proceeding.
65I have already set out what Dr Khan said in his first report of 18 May 2021. Continuing with his reports in chronological order, he next reported on 12 January 2022.[37] He described the plaintiff’s neck pain as ongoing as a result of the incident. He said there were no restrictions in regard to the left shoulder and left elbow injury. He said the plaintiff had full capacity to work in regard to the left shoulder and left elbow injury. He said there was no restriction in regard to the neck pain, and also a full capacity to work. He said that the plaintiff was unfit for any work due to his back injury. He then said, regarding the plaintiff’s mental health, that:
“He is unable to concentrate, has poor attention and memory due to his poor mental health. He is totally incapacitated due to his mental health conditions. The above mentioned restrictions in regards to his back and mental health are likely permanent.”[38]
[37]PCB 87.
[38]PCB 88-89.
66Dr Khan next reported on 23 July 2022.[39] He mostly repeated his earlier opinions, but relevant to the low back, he said:
“His lower back pain is not related to his work incident in April 2019 and his lower back pain complaint was made many months later. However, his lower back pain and disc disease may be due to his work which involved repetitive bending and lifting.”[40]
[39]PCB 91.
[40]PCB 92.
67Dr Khan reported for a final time on 14 January 2023.[41] His final report in part confirmed and in part contradicted some of his earlier opinions and so it is convenient to reproduce it in full:
[41]PCB 94.
“Thank you for asking me to write a subsequent Medical Report for Hamidullah Ali, D.O.B [redacted]. He has been under my care for left elbow, Left shoulder, back and neck injuries. He initially complaint of left elbow injury (cut to the elbow) following the incident at his work however he started having left shoulder, neck and back pain after the incident. He has had multiple scans which showed left shoulder bursitis, severe lower back disc disease, Muscle spasm in neck (normal MRI) and was diagnosed with adjustment disorder.
I believe his left elbow injury was caused by the incident at work on 28th of April, 2019. His left shoulder, back and neck pain are an aggravation due to his work duties which involved repeatitive [sic] bending and lifting. This may have been aggravated by the incident on the 28th of April. His secondary Mental health issues are due to his physical injuries and his adjustment disorder is work related.
He is fit to return to work in regards to his left elbow, shoulder and neck injury. He is unfit for any capacity in regards to his lower back disc disease and poor mental health. He has no restrictions in regards to his left elbow, shoulder and neck injuries. He is unable to bend/squat/kneel. He is unable to lift more than 7 kgs. He is unable to stand for more than 20 minutes. He is unable to concentrate and his attention is poor. These restrictions are permanent and are unlikely to change.
Work capacity:
Left elbow: full capacity, normal scans, full range of movement
Left shoulder: full capacity, normal scans, full range of movement
Neck: full capacity, Normal scan, I am not sure if Dr Ali Kian has seen the normal MRI scan that we had done recently. I did not find any abnormality in the scan.
Back: No capacity, severe lower back disc disease, likely to deteriorate (permanent)
Adjustment disorder: No capacity, poor emory, [sic] attention and concentration, tiredness (permanent)
Employment [sic] of Life/Pain and suffering:
a: Left elbow injury: I think he may be able to return to full duties and unrestricted activities of daily living including sleep, social, domestic and recreational activities and overall enjoyment of life.
b: Left shoulder injury: I think he may be able to return to full duties and unrestricted activities of daily living including sleep, social, domestic and recreational activities and overall enjoyment of life.
c: neck injury: I think he may be able to return to full duties and unrestricted activities of daily living including sleep, social, domestic and recreational activities and overall enjoyment of life.
d: Lower back injury: I do not think he will be able to return to work in any capacity. His condition is likely to deteriorate in future. His back injury restricts him from any work, leisure activities, affects his sleep and domestic life. His back injury has affected his over all enjoyment in life.
e: Spinal injury: I do not think he will be able to return to work in any capacity. His condition is likely to deteriorate in future. His back injury may be affecting his overall posture, causing neck pain. His spinal injury restricts him from any work, leisure activities, affects his sleep and domestic life. His spinal injury has affected his over all enjoyment in life.
f: Psychiatric injury: I do not think he will be able to return to work in any capacity. His condition is likely to deteriorate in future. His poor mental health restricts him from any work, leisure activities, affects his sleep and domestic life. His psychiatric injury has affected his over all enjoyment in life.
Overall: I think it is unlikely that he will return to work in future due to the combination of his physical (spinal) and mental health injuries caused at work.”[42]
[42]PCB 94-96.
What conclusions can be made from Dr Khan’s evidence
68In short, a consideration of all the evidence from Dr Khan supports a conclusion that the plaintiff suffered a left elbow, left shoulder and neck injury in the assault.
69However, Dr Khan’s evidence does not support a conclusion of any ongoing physical impairment from one or the other of the left elbow, left shoulder and neck injuries, or at least it does not support a finding of a “very considerable” impairment consequence to establish a “serious injury” from any of those claimed assault related injuries.
70I consider that Dr Khan’s opinions regarding the injuries claimed to be caused by the assault to the left elbow, shoulder and neck are supported by the reports and evidence from the initial treaters, namely Professor Patel, Mr Ishikawa and Mr Tran, as well as some of the medico-legal evidence that will be discussed in due course.
71Therefore, I conclude that Dr Khan’s opinions about the left elbow, shoulder and neck are correct. Based on that conclusion, the plaintiff’s claim for a serious injury to either the left elbow, left shoulder or neck must be rejected. But, for completeness, I shall consider the balance of the evidence before formally expressing my conclusions.
72Next, regarding the low back injury, Dr Khan provided evidence that the plaintiff relied on to support an overall conclusion of an ongoing “serious injury” to the low back. But his exact diagnosis regarding the low back is unclear. Dr Khan refers to “severe lower back disease” and provided a generic description of “spinal injury”.[43] I interpret this to mean a diagnosis of aggravation of underlying degenerative change, for the injury suffered in the assault and the injury due to the general nature of the work duties. Regardless of the diagnosis, Dr Khan described significant impairment for work and daily activity. He said the spinal injury prevented the plaintiff from returning to work in any capacity and affected his overall enjoyment of life.[44]
[43] PCB 94-95.
[44] PCB 95.
73But, even accepting that the plaintiff does have low back symptoms, or a diagnosed “spinal injury”, the immediate issue is that of causation, that is, what has caused such injury? If Dr Khan is describing an aggravation injury, what is the extent of such aggravation from either the assault or the work duties? These questions are not answered by Dr Khan.
74In respect to causation of the back injury, in his last report Dr Khan described it as an aggravation due to work duties involving repetitive bending and lifting. He also said that this injury “may have been aggravated” by the assault.[45] That opinion is to be contrasted with his earlier opinion of 23 July 2022, when he said the low back pain was not related to the assault but may be due to work involving repetitive bending and lifting.[46]
[45] PCB 94.
[46] PCB 91.
75An important objective fact is the lack of any complaint of low back pain to Dr Khan before October 2020. Dr Khan does not explain in his evidence how it could be that a report of severe low back pain for the first time in October 2020 can be attributed to work duties undertaken before the assault.
76On balance, when considered as a whole, the evidence from Dr Khan tends to a conclusion that there was no injury to the low back because of the assault.
77Based on Dr Khan’s evidence, any work-related low back injury could only be explained by the general and heavy repetitive nature of the plaintiff’s work duties. Dr Khan’s reports in total provide some limited and qualified support for a claim put on that basis. But critically, Dr Khan does not proffer any explanation why a reporting of severe low back in October 2020 leads to a conclusion that those symptoms could be somehow linked to employment prior to the assault. This gap in his path of reasoning impacts the weight to be attached to his opinion regarding the connection between the back injury and the plaintiff’s work duties.
78In summary, Dr Khan’s evidence when considered as a whole, in my opinion, does not support a conclusion of a work-related back injury. Regardless, his evidence does not enable any reliable assessment of the impairment from any claimed spinal injury. His reports do not assist the plaintiff in this proceeding.
The plaintiff’s affidavit evidence
79At this juncture, and before considering the balance of the medical evidence, it is useful to first consider what the plaintiff said in his evidence about the onset of symptoms because, in my view, that evidence needs to be carefully scrutinised in light of the objective evidence from the treaters, which, again as already mentioned, was at the core of the defence to this proceeding.
80In his first affidavit sworn 25 February 2021,[47] the plaintiff set out his background, education, work history and the circumstances of the assault. Broadly relating to the course of employment claim, he said:
“My work as a tiler involved heavy repetitive use of my lower back, neck and bilateral arms. I was required to lift and carry boxes of tiles and perform repetitive reaching, with prolonged periods of sustained heavy manual work. I wore a back brace at work.”[48]
[47]PCB 13.
[48]PCB 14.
81The balance of the first affidavit set out evidence of claimed consequences from the left elbow, left shoulder and the neck. In that affidavit, there was a focus on those injuries. The plaintiff did describe a “strong dull constant pain in my back”. He said if he moved the wrong way or did too much activity, the pain got worse, which he avoided. He said he took medication to ease the pain in the left shoulder, left elbow, neck and back.[49]
[49]PCB 19.
82I consider the evidence in that affidavit as to consequences from any claimed left elbow, left shoulder and neck, to be unreliable in the context of the evidence from treating practitioners.
83The plaintiff swore a further affidavit on 6 September 2022. In that affidavit, some focus was brought to the claim regarding the back injury. He said:
“(g)I refer to paragraph 7 of my first Affidavit. I began wearing a back brace about 18 months after I started work. I would wear the back brace both under my shirt or on the outside of my shirt. I believe the Defendant and other workers could see that I was wearing a back brace when I was working, especially when I was doing the heavy tiling. No one approached me as to why I was wearing a back brace nor was any offer made to me to change my work.”[50]
[50]PCB 23-24, para 22(g).
84The second affidavit sets out a range of consequences under a heading of “Consequences of my injury”.[51] Of course, the plaintiff did not rely on an injury, but rather he relied on injuries, and there was no real attempt in that affidavit to isolate what consequences were said to relate to which injury. That affidavit also set out significant psychological symptoms.
[51]PCB 26.
85The plaintiff swore a third affidavit on 7 March 2023.[52] In that affidavit, he set out his ongoing treatment and medication. He said that he continued to have “pain, restriction and limited function in relation to the injuries to my left shoulder, left arm, neck and back”.[53]
[52]PCB 31.
[53]PCB 33.
86Under a heading of “current status”, the plaintiff set out separately what was said to be the consequences from the left elbow, left shoulder, neck and low back. Again, that evidence is to be considered in the context of the evidence from treating practitioners. Relevant to the low back, he said he had constant pain that varied in intensity. He described it as “aching most of the time”, but could produce a sharp, stabbing pain with activity.[54] He described pain into both legs “from my low back at different times”.[55] He then set out a range of consequences from the several claimed injuries without any effort to isolate impairment and impairment consequences from one or the other of the claimed injuries.
[54]PCB 38.
[55]PCB 39.
The plaintiff’s oral evidence
87The plaintiff was cross-examined about what he had said in his affidavits. The cross-examination was relatively brief, but appropriate. There was a focus on what had been recorded by the treating practitioners in the first six months or so after the assault and broadly the plaintiff accepted as accurate what had been recorded or reported by the treaters for that period, including his clearance to return to work and his attempts to find work in late 2019.
88It was put to the plaintiff that his low back pain was unrelated to the assault. He said the assault made it worse.[56] He said he had small back pain before the assault, which was why he wore the back brace, which he thought was just normal and would go away.[57] He agreed that he did not report back pain to Dr Khan before October 2020 and explained that was “when the pain got really strong”.[58] Later on in cross-examination, he described back pain before October 2020 as “very light” and agreed that October 2020 was when it became a real problem.[59]
[56] T 24, L 21.
[57] T 24, L 27.
[58] T 25, L 27.
[59] T 30, L 14-19.
89In respect to any residual capacity for work, the plaintiff said in cross-examination that he could not work because of neck pain, back pain or if he used his shoulders. It was suggested to him that no matter how light a suggested job might be he was going to say he could not do it because of pain, to which he responded, “Even just sitting here at the moment, I’m going through pain”.[60]
[60] T 34, L 19-20.
What to make of the plaintiff’s evidence
90The evidence from the plaintiff, both in his affidavits and in the witness box, needs to be considered in the context of the evidence from treating practitioners. His widespread complaints of significant pain and incapacity do not sit comfortably with the early material from Dr Khan, Mr Ishikawa or Professor Patel. His evidence does not provide a reliable basis to conclude that the injury or injuries did not recover as those health practitioners had anticipated to occur by about late 2019.
91In fact, much of the plaintiff’s claim for serious injury is really based on subjective complaints of pain, with little objective evidence from treating practitioners, but then sought to be bolstered by a raft of medico-legal opinions. Where there is a conflict between his evidence and the treating practitioners, I prefer the evidence from the treaters, because of the more reliable nature of it.
92His oral evidence was of light back pain before the assault and then the onset of severe back pain in October 2020. Yet during that period, he had been cleared by his treaters to return to work, even in a modified capacity and he did attempt a return to work. How, when, or why his back pain became severe, or how it relates to work, or the assault is unexplained.
93There is an unreliability in the plaintiff’s evidence. I did not get a sense that he had set out deliberately to deceive, and he did at times make appropriate concessions, such as the fact that he has maintained some physical activity such as swimming and gym work. It may be that his emotional state is contributing to his perception of pain and disability. At the end of the day, the reason why is not important. The fact remains that the reliable, objective evidence is of improvement in the months after the assault. Then, later, the plaintiff makes subjective complaints of widespread pain, including severe low back pain, without any clear explanation in the objective evidence of how those complaints are related to one or the other of the claimed compensable injuries.
The lay affidavits
94The plaintiff relied on affidavits from his sister, Ziba Ali. Those affidavits paint a broad picture of the plaintiff being quite incapacitated but lumps the injuries together. In her first affidavit sworn 14 September 2022, she described that her brother “regularly complains about pain in his back as well as pain in the left elbow, neck and left shoulder”.[61] Then, in a further affidavit sworn 20 March 2023,[62] his sister again set out ongoing observations of her brother and his incapacity, including a discussion about his mood.
[61]PCB 49.
[62] PCB 52.
95The plaintiff provided an affidavit from his brother, Najibullah Ali, sworn 17 March 2023. Like the sister’s affidavit, this affidavit also sets out a range of observed restrictions for day-to-day activity by reference to multiple injuries. Perhaps relevant to the course of employment claim, his brother described the plaintiff complaining to him about a sore back from time to time before April 2019 and how he was struggling with his work because of back pain.[63]
[63]PCB 57.
96The lay affidavits from the plaintiff’s brother and sister are broadly supportive of his claim. But those affidavits need to be viewed through the prism of the reliability of the plaintiff’s evidence of injury which, as mentioned, is in doubt because of the evidence from the treating practitioners. Further, those affidavits do not make any attempt to isolate impairment consequences from one or the other of the claimed injuries. They are part of the evidence and I have taken them into account.
The balance of the treating material regarding physical injury
(i) Dr Ali Mehr
97Turning, then, to the balance of the medical evidence from treating practitioners. Next in time was Dr Mehr, who the plaintiff first attended on 12 January 2021. Dr Mehr obtained a history of the heavy work and the need to wear a back belt. He obtained a history of the assault and described that, in the assault, the plaintiff’s back “was also twisted”.[64] Dr Mehr went on to diagnose various conditions, including chronic lumbar spine pain due to aggravation of lumbar spondylosis, said by him to be consistent with the stated cause, which is of developing injuries over the course of employment and also injury at the time of the assault.[65]
[64]PCB 104.
[65]PCB 105.
98Dr Mehr opined that the “cause of the pain in multiple locations including back, neck and left shoulder is the heavy physical work at his last employment with Ezy Tiling. Also the reason of the pain in the left shoulder is the incident in the workplace that has been described in my letter”.[66]
[66]PCB 106.
99Dr Mehr provided a further report dated 17 July 2022.[67] He recorded review consultations with the plaintiff on 3 March 2021 and 10 May 2022. In this further report, Dr Mehr largely repeated the opinions in his earlier report. He described chronic conditions affecting the left elbow, left shoulder, neck and low back. He described psychological consequences. He said that “the reason of the abovementioned injury and secondary condition is the incident in his employment and also the type of activities in employment”.[68]
[67]PCB 113.
[68]PCB 116.
100Dr Mehr provided a third and final report dated 19 December 2022.[69] It is unclear, but it appears from the report that Dr Mehr saw the plaintiff on that date to prepare the report in response to a request from the plaintiff’s solicitors dated 1 December 2022. The report does not describe any treatment since his previous report, and he made no suggestion for ongoing treatment. The tone of the report is such that it reads like a medico-legal assessment and not a report from a treating practitioner.
[69]PCB 121.
101Dr Mehr was asked whether, on the balance of probabilities, the plaintiff’s injuries had been caused by his employment duties and, particularly, the incident on 28 April 2019, to which he answered, “I believe so.”[70] Once again, he set out various restrictions from each of the claimed injuries for daily activity and work. He described each of the plaintiff’s injuries as stable.
[70]PCB 122.
102Dr Mehr’s opinions support an ongoing work connection to the claimed physical injuries to each of the left elbow, left shoulder, neck and low back. But his opinions on causation regarding the neck and left shoulder as related to the nature of the work duties are against the weight of the medical and evidence and are not in accordance with how the plaintiff put his case.
103Further, Dr Mehr notes the psychological aspect of the plaintiff’s presentation, which raises an issue as to whether he has excluded such a reaction from his description of pain and impairment.
104Moreover, Dr Mehr does not attempt to separate out the claimed consequences of any injury suffered in the assault, as opposed to consequences from the course of employment.
105Dr Mehr’s opinions are inconsistent with the opinion from the treating practitioners that pre-date him. He had a picture of significant impairment, which is inconsistent with the medical evidence up to the point when he commenced treating the plaintiff. It is not his job as a treating practitioner to challenge the voracity of his patient’s complaints, but, in my view, his opinions have been expressed based on an acceptance of symptoms that I do not accept as being accurate.
106Finally, I note the last attendance for treatment with Dr Mehr to have been on 10 May 2022, although exactly what treatment was provided is unclear. Regardless, the lack of treatment or treatment recommendations since then points against a conclusion of a “very considerable” consequence. The lack of treatment more likely supports a conclusion that Professor Patel was correct when stating that with conservative treatment the symptoms, at least from the left elbow, should resolve.
(ii) Mr Justin Moar
107Mr Justin Moar is a physiotherapist at the Precision Group, to whom the plaintiff was referred to by Dr Mehr. He is the last treating practitioner for any physical injury. He treated the plaintiff between 19 March 2021 and 5 October 2021.
108Mr Moar reported on 17 June 2022.[71] He set out the history of the assault, the laceration from the tile, and also that the plaintiff had been wrestled in a headlock, twisting his back. He noted the plaintiff had suffered persistent left elbow pain, had developed left-sided neck and shoulder pain, and in addition complained of low back pain that would increase with activity.[72] He set out the treatment provided by him, with a focus on soft tissue release, taping of the low back for posture and movement awareness, as well as various exercises.
[71]PCB 155.
[72]PCB 155.
109Mr Moar then provided a diagnosis of the left shoulder and neck conditions as “myofascial pain on the background of cervico-thoracic-shoulder muscle dysfunction secondary to persistent left elbow laceration”.[73] Regarding the low back, he said the diagnosis was aggravation of spondylosis. He said he had not arrived at a diagnosis regarding the left elbow.[74]
[73]PCB 156.
[74]PCB 157.
110Mr Moar was also asked several questions. In his answers, he described the left shoulder and neck as inseparable and as causing the plaintiff not to have any realistic capacity for suitable employment. He also said, regarding the low back alone, that the plaintiff did not have any realistic capacity for suitable employment.
111Similarly, to what I said about Dr Khan, I am not critical of Mr Moar. He has no doubt treated his patient based upon an acceptance of the voracity of complaint made to him. However, his diagnosis is inconsistent with the other medical opinions in the sense of diagnosing a myofascial pain condition. His opinions also do not assist in understanding how and when the low back condition was suffered.
112I also note that Mr Moar’s opinion was expressed after having last seen the plaintiff on 5 October 2021,[75] and in that sense I attach less weight to them when it comes to a consideration of injury and impairment consequences as at the present date.
[75]PCB 156.
113What is relevant is that the physiotherapy with Mr Moar is effectively the last ‘hands on’ treatment for any claimed serious physical injury, apart from ongoing attendance on Dr Khan and the use of medication.
114Indeed, the plaintiff has had very little treatment for several years other than conservative assessment, home based exercise, and the use of medication. This suggests that any ongoing injury – if there is one – might be capable of description as significant or marked, but not as “very considerable”.
The plaintiff’s medico-legal opinions of physical injury
115I turn now to consider the medico-legal opinions relevant to any claimed physical injury, commencing with those commissioned on behalf of the plaintiff.
(i) Dr Joseph Slesenger
116Dr Joseph Slesenger is a specialist occupational physician. He provided five reports at the request of the plaintiff’s solicitors. The first four of those reports, dated 2 February 2022,[76] 5 August 2022,[77] 18 September 2022,[78] and 8 February 2023,[79] can be summarised as that he supported a conclusion of compensable injury to the left elbow, left shoulder and neck. Those reports were supportive of the plaintiff having suffered a “serious injury” to one or more of the claimed physical injuries. He also described the “pre‑injury” tasks as a plausible cause of the plaintiff’s lumbar spinal impairment.[80]
[76]PCB 220.
[77]PCB 240.
[78]PCB 265.
[79]PCB 276.
[80]PCB 292.
117But, in a portent of what was to come, he said “I continue to recommend a review of the relevant records in order to confirm the continuity of lumbar spinal impairment.” He then said that he was satisfied that the left shoulder, left elbow and cervical spinal impairment related to the assault.[81]
[81]PCB 292.
118Dr Slesenger reported for the fifth and final time on 18 March 2023.[82] By then his suggestion was implemented, and he had been provided with copies of relevant clinical records to review. Having done so, Dr Slesenger said that “the additional documentation provided raises concerns with regard to causation and the continuum of symptoms”.[83]
[82]PCB 304.
[83]PCB 317.
119Dr Slesenger then set out what he had considered from the further documentation and said:
“Taking the evidence as a whole, there is now a significant doubt with regard to his injuries and whether these injuries are work related.
…
Taking the evidence as a whole, I remain satisfied that he suffered a left elbow laceration/soft tissue injury and has developed chronic left elbow pain. He may also have suffered a left shoulder injury in the subsequent scuffle, however, the initial post injury records do not reference an ongoing shoulder impairment.
…
I am of the opinion that the initial impairment does not appear to have been significant, and in support of this, I note that there do not appear to be a continuum of analgesic medication being prescribed, and the records of late 2019 indicate that he had responded well to the initial treatment.
I am unable to correlate the axial spinal symptoms, namely the cervical spine and lumbar spine impairment with the injury under consideration.”[84]
[84]Ibid.
120Dr Slesenger clearly and in a considered manner, after a review of much of the evidence that is now before the Court in this proceeding, withdrew his support for the plaintiff regarding any claimed “serious injury” to the left shoulder, neck or low back. Regarding the left elbow, he said he remained satisfied there had been a left elbow laceration/soft tissue injury, which, in my view, is probably an indisputable conclusion considering the evidence of the plaintiff’s attendance at the Box Hill Hospital immediately after the assault.
121But Dr Slesenger went on to describe the plaintiff as developing “chronic left elbow pain”.[85] What is meant by that in a diagnostic sense is unclear. Overall Dr Slesenger said he remained of the opinion that the left elbow impairment related to the injury under consideration[86] (I take that to refer to the assault).
[85] PCB 317; 318.
[86] PCB 324.
122Dr Slesenger was asked questions about suitable employment and about various jobs as set out in vocational assessments. He said there was no work-related occupational disability in relation to the cervical and lumbar spine and that he could not correlate any neck or back injury to the index accident (again I take that as a reference to the assault). He said he could not correlate the left shoulder impairment with the injury under consideration.
123In respect to work capacity and perhaps reflecting the broad diagnosis of chronic left elbow pain, Dr Slesenger described the left elbow impairment as “more difficult to assess”.[87] He said the plaintiff should adhere to various lifting restrictions to 5 kilograms, no repetitive elbow tasks and no firm pushing, pulling or torque movements. He said from the left elbow impairment alone, the plaintiff was unlikely to be able to return to work performing suitable duties on a consistent and reliable basis.[88]
[87] PCB 318.
[88]PCB 319.
124In summary, on the balance of probabilities, Dr Slesenger said:
“I am satisfied that the left elbow impairment relates to the injury under consideration. Although I would recommend a review of the pre-injury GP records and the physiotherapy records.
I am unable to correlate Mr Ali’s left shoulder, cervical spine and lumbar spinal impairment to the injury under consideration.”[89]
[89]PCB 324.
125There is a bit in Dr Slesenger’s final opinion for both sides in this proceeding. He provided qualified support[90] for an ongoing left elbow impairment, with restrictions for tasks that require lifting more than 5 kilograms, or repetitive or forceful use of the left arm. On the other hand, he retreated from his earlier opinions regarding the left shoulder, neck and low back. He did not then find those claimed injuries difficult to assess. He said in no uncertain terms that he could not conclude that the work with the employer had been an ongoing cause of injury to the left shoulder, neck or low back.
[90] A condition he said was difficult to assess.
126Dr Slesenger is perhaps an example of what an expert is obliged to do, and that is express an independent expert opinion and provide a path of reasoning.
127After a consideration of all the evidence, I accept Dr Slesenger’s opinions insofar as they relate to the left shoulder, neck and low back.
128Regarding the left elbow, I accept Dr Slesenger’s opinion that there was an injury to the left elbow, but as he said, the left elbow is difficult to assess.
129But based on my consideration of the evidence, I do not accept Dr Slesenger’s final opinion regarding the ongoing impairment consequences of the left elbow injury. In a difficult assessment, I consider he has placed too much reliance on the plaintiff’s claimed subjective complaints, particularly considering the objective evidence in the material from Dr Khan and Professor Patel, which material he acknowledged as influencing his overall opinions.
130Further, he does not explain how an initial laceration or soft tissue injury to the left elbow is now diagnostically described, other than a broad description of chronic left elbow pain. I take that to be no more than a formal description of the plaintiff describing chronic elbow symptoms in the absence of a clear physical diagnosis.
131Dr Slesenger’s final opinion supported a conclusion that there is an ongoing impairment consequence from the left elbow. But, in my opinion, on a consideration of the whole of the evidence, any ongoing left elbow impairment consequences, in isolation, are not at the level described to Dr Slesenger by the plaintiff. I find it difficult to reconcile Dr Slesenger’s ongoing support for the plaintiff’s claimed left elbow symptoms, where he has clearly withdrawn his acceptance of what the plaintiff told him about the left shoulder, neck and low back, when he was given the relevant evidence from the treaters. He has given the plaintiff the benefit of the doubt, in what he acknowledged as a difficult assessment of the left elbow, that I am not prepared to accept.
(ii) Professor Richard Bittar
132The next medico-legal opinion relied on by the plaintiff is from Professor Richard Bittar, a consultant neurosurgeon. He examined the plaintiff on 17 June 2022 and provided a report. He took a history that the plaintiff had constant low back pain varying in character with an average severity of 8/10 and a maximum of 10/10, aggravated by various activities.[91] Exacerbating activity included sitting for more than 20 minutes.
[91]PCB 325.
133Professor Bittar proceeded to take a history that the plaintiff had been experiencing lower back pain “during the course of his heavy and repetitive workplace activities and was wearing a support belt. His lower back pain worsened after the alleged assault and remained so.”[92] Professor Bittar said that in his opinion, the injury at work on 28 April 2019 had been a significant contributing factor to the plaintiff’s neck and lower back-related conditions, described by him as aggravation of cervical and lumbar spondylosis.[93] He went on to discuss the plaintiff’s restrictions and described him as totally incapacitated for any proposed suitable employment.[94]
[92]PCB 327.
[93]PCB 328.
[94]PCB 331.
134Professor Bittar reported again on 23 January 2023.[95] For some reason, early on in that report, he was motivated to acknowledge the following:
“I receive payment for each medicolegal report and court appearance. I accept work from Plaintiff law firms, Defendant law firms and insurers. I own shares in several groups that own commercial properties, and some of the other shareholders are lawyers from the law firm that has asked me to write a report in this case. The properties are managed at arms-length and on strictly commercial terms by a third party. They have no relationship to my medicolegal work. I do not believe that there is any bias or impartiality that flows from these shareholdings.”
[95]PCB 335.
135Professor Bittar repeated much of the history and what he had said in his earlier report, including as to the onset of the plaintiff’s claimed low back pain.[96] He repeated his diagnosis. In respect to causation, he said the injury at work on 28 April 2019 had been a significant contributing factor to his neck and lower back-related condition. He also said that, in his opinion, the heavy and repetitive workplace activities had also been a significant contributing factor to his lumbar spine condition.
[96]PCB 337.
136Professor Bittar expanded upon his opinions regarding causation when he answered a question as follows:
“In my opinion, on the balance of probabilities, his neck and back injuries have been caused by his employment duties and in particular the incident in April 2019.”[97]
[97]PCB 339.
137Professor Bittar went on to again rule out any suitable employment for the plaintiff by reason of each of the neck and back injuries.
138Professor Bittar then provided a third report dated 17 March 2023, in which he again included his disclaimer about various interests in commercial properties.[98] Professor Bittar then went on to consider medical reports from Dr Clayton Thomas and Dr Anthony Menz, which were, in the words of Professor Bittar, “commissioned by lawyers acting for the insurer”.[99] Professor Bittar set out areas of disagreement with Dr Clayton Thomas and the plaintiff’s “excellent physique”. He also set out where he disagreed with Dr Menz, although on one issue, namely whether the assault caused a low back injury, he in fact agreed with Dr Menz. In that regard, Professor Bittar said:
“I agree that his lower back pain is unrelated to the incident but is more likely related to his repetitive and heavy workplace activities, as outlined in my previous reports.”[100]
[98]PCB 345.
[99]PCB 346.
[100]Ibid.
139I note that Professor Bittar’s acceptance of Dr Menz’s opinion that the low back pain was unrelated to the assault is seemingly at odds with the opinion expressed in his earlier report where he described the neck and back injuries as having been caused by the plaintiff’s employment duties “and in particular the incident in April 2019”.[101] It may be that Professor Bittar changed his opinion after a consideration of the opinion from Dr Menz, but the path of reasoning to such a change of opinion is unclear.
[101]PCB 339.
140Professor Bittar then discussed the comments from Dr Menz that the plaintiff’s presentation was related to abnormal illness behaviour. He said the plaintiff most likely did have “some non-organic behaviour and/or functional overlay”. Of course, the emotional or psychological consequence of a physical injury cannot be considered in the assessment of the physical injury. Despite acknowledging some non-organic features, Professor Bittar does not clearly explain whether he has disregarded those features in expressing his opinions about incapacity. I will assume he has.
141Professor Bittar does not appear to have been provided with the additional documents that were provided to Dr Slesenger. Regardless, in his report he does not explain his ultimate opinion that the plaintiff’s low back symptoms relate to the general nature of the work duties, in the context of no real complaint of back symptoms until February 2020, or more particularly, until the plaintiff presented to Dr Khan in October 2020.
142Therefore, I do not attach much weight on the opinions from Professor Bittar. His path of reasoning is unclear, and he appears to have been denied the benefit of the relevant material from the treaters. Further, I consider that his opinions have been expressed based on the history given to him, which is a history I do not accept as accurate.
(iii) Dr Richard Sullivan
143Another medico-legal practitioner is Dr Richard Sullivan, an interventional pain specialist and specialist anaesthetist.
144Dr Sullivan examined the plaintiff on 26 July 2022 and provided a report.[102] He described the plaintiff suffering injuries in the course of his employment and described that work as arduous, laborious and repetitive. He then said that in particular, the plaintiff suffered injuries on or around 28 April 2019. He described injuries from the assault as a laceration and soft tissue injury to his left elbow, soft tissue injury to his left shoulder, injury to his cervical spine and injury to his lumbar spine. He diagnosed chronic pain affecting the left upper limb, aggravation of cervical and lumbar spondylosis and soft tissue injury to the left shoulder. He then said that, on the balance of probabilities, he considered those injuries to have been caused “in the course of his employment and in particular the events of 28 April 2019”.[103]
[102]PCB 349.
[103]PCB 354.
145Pausing, the undisputed legal principles are that for “serious injury” purposes, the plaintiff cannot combine the injury to the low back from the course of employment and the assault in the manner set out by Dr Sullivan, which impacts the weight and usefulness of his opinions.
146Pausing again, a plaintiff can suffer consecutive “serious injuries” to the same body function – in this proceeding, the spine – due to consecutive tortious events and there was some brief attempt by him to rely on this approach as per the principles in Skorsis.[104] But that was not pressed, no doubt because the evidence does not support a conclusion of a “serious” low back injury due to the nature of the work and then a further “serious” injury to the low back from the assault.
[104] RJ Gilbertsons Pty Ltd v Skorsis [2000] 12 VR 386.
147In any event, Dr Sullivan set out various restrictions from each of the injuries and explained why the plaintiff could not return to employment. Relevant to the low back, he said that the spinal injuries in combination caused permanent restrictions.
148I pause to note, yet again, that if the neck injury was caused in the assault and the low back was caused by the general nature of the work duties, then those injuries cannot, as a matter of law, be combined to ‘the spine’ – or as described by Dr Sullivan as spinal injuries – as they arrive out of different causes of action.
149Dr Sullivan then re-examined the plaintiff and provided a second report dated 15 January 2023. That report repeated much of his earlier report. But, relevant to diagnosis, he said the plaintiff’s clinical presentation remained largely unchanged and the clinical diagnosis as “chronic pain post trauma…continues to afflict his cervical spine, his left elbow, his left shoulder and his lower back”.[105] He said he believed that the injuries had been “caused through his employment particularly the incident on 28 April, 2019”.[106]
[105] PCB 363.
[106] PCB 364.
150Dr Sullivan then answered many questions regarding employment and lifestyle restrictions in isolation from each of the injuries. In summary, he placed significant functional restrictions on each of the injuries and described considerable incapacity for work and daily activity from each of the injuries.
151Dr Sullivan reported for a third time on 17 March 2023, in which he was asked to consider medical reports from Associate Professor Doherty, Dr Thomas and Dr Menz. Under a heading “Dealing with medico-legal enclosures”, he dealt with the enclosures by saying that he had the opportunity to read over the sworn affidavit from the plaintiff and set out the relevant evidence that he had extracted from that affidavit. He then went on to set out his further opinions that remained consistent with his earlier report. But it appears that he preferred what the plaintiff said, rather than considering the medico-legal enclosures provided to him.
152Dr Sullivan also appears to have given the plaintiff the benefit of the doubt, which I am not prepared to do in the light of the material from the treaters, which he has not had the benefit of. His evidence is not supported by the evidence from the treaters and as mentioned, he combined various physical and psychological injuries in an impermissible way, notwithstanding his answers to questions directed to each of the claimed serious injuries.
153Dr Sullivan reported again on 23 March 2023,[107] in which he was again asked to comment after being provided with further material, that appears to have been reports of radiology. He said that the radiology in no way changed his opinion regarding the cervical spine injury. I note that he was not given the material that had been requested and considered by Dr Slesenger.
[107]PCB 422.
154In short, I consider Dr Sullivan placed too much uncritical reliance of the plaintiff’s affidavit evidence. He also combined the numerous injuries and symptoms in a manner that is impermissible for “serious injury” purposes. He has not had the benefit of the material provided to Dr Slesenger. As such, I do not place much weight on his evidence.
(iv) Flexi Personnel
155Flexi Personnel provided reports dated 23 August 2022[108] and 15 September 2022.[109] It is debatable whether those reports contained any expert opinion. Ms Mary Oliver, Human Resources consultant, who was the author of those reports, appears to have used secondary resources to extract relevant rates of pay. It does not appear to me that she has relied upon any expertise, perhaps other than basic computer skills, to extract those rates of pay, but nevertheless I take them into account.
[108]PCB 379.
[109]PCB 383.
Overview of the plaintiff’s evidence
156That is the extent of the evidence relevant to physical injury as relied upon by the plaintiff. It should be apparent that much of it is contradictory or in conflict. In the case of the reports from some medical witnesses, there is unexplained internal conflict between reports.
157There is no escaping the fact that the plaintiff bears the evidentiary onus. I consider the state of the medical evidence to be confused. A lot of the medico-legal evidence is substantially based on unreliable subjective complaints of pain. I accept the defendant’s submission that the reliable evidence is contained in the reports from the relevant treating practitioners in the 18 months or so after the assault.
158The state of the evidence from the plaintiff does not enable me to identify a claimed compensable injury and to ascribe impairment consequences to any claimed physical injury. That is enough to dismiss the proceeding so far as it is based on any claimed physical injury.
159But, for completeness, I will briefly set out the defendant’s medical evidence.
The defendant’s medico-legal evidence of physical injury
160Because of the way the defendant put its case, namely that the treating material did not support the plaintiff’s case, not a lot was said during the hearing about the defendant’s medical evidence. But the defendant did highlight the opinions from Dr Clayton Thomas and Dr Anthony Menz, so I will set those out in some detail, but the balance of the defendant’s medico-legal material does not reuire a detailed discussion.
(i) Dr Clayton Thomas
161Dr Clayton Thomas reported on 26 June 2021[110] at the request of the defendant. He noted a laceration injury to the left elbow and an “unrelated complaint of low back pain.
[110] DCB 6.
162In a further report dated 27 January 2022[111] Dr Thomas broadly said he considered the plaintiff to have made a good recovery from the left elbow injury and had nonspecific low back pain”.[112]
[111] DCB 11.
[112] Ibid.
163In a report dated 1 September 2022,[113] he said there had been a worsening of symptoms since he had previously examined the plaintiff that could not be explained on physiological grounds. He said there was over embellishment of the true situation.
[113] DCB 13.
164Dr Thomas reported again on 3 February 2023.[114] In short, he said the plaintiff’s case “was not a physical one”.[115] He noted the plaintiff’s excellent physique. He repeated his opinions that, in my words, there was not much physically wrong with the plaintiff and that he had a work capacity.
[114] DCB 90.
[115] DCB 93.
165On a consideration of all the evidence, I consider Dr Thomas’ opinions to be a true assessment of the situation.
(ii) Dr Anthony Menz
166Dr Anthony Menz is an orthopaedic surgeon, to whom I have already alluded. He has provided reports at the request of the defendant. His reports do not support the plaintiff either in respect to causation, impairment, or impairment consequences.
167Dr Menz could be said to have a forensic advantage over some of the other medico-legal examiners, as he first examined the plaintiff on 1 October 2019. In a report of that date, he obtained a history of the assault, the left elbow laceration, and the early treatment. He recorded the current treatment as physiotherapy and Panadol.[116] He recorded current symptoms as then being in the left elbow and neck. He concluded that the plaintiff had suffered a minor laceration and bruising to the neck because of the assault.[117] He said the plaintiff was then fit for a full return to work.
[116] DCB 58.
[117] DCB 60.
168Dr Menz then provided a very short report dated 23 October 2019 in which he confirmed his opinion that the plaintiff was then fit to resume his pre-injury work and normal hours.[118]
[118] DCB 55.
169Of note is the fact that the plaintiff made no complaint of back pain, or even of light back pain, when he was seen by Dr Menz. The plaintiff agreed in cross-examination that he did not complain of back pain to Dr Menz.[119]
[119] T 30, L 13.
170Dr Menz then re-examined the plaintiff and provided a comprehensive report dated 13 September 2022.[120] For the purposes of his report, he was provided with medical reports and medical records that seem essentially to be what was eventually provided to Dr Slesenger. He also noted having been provided with what he described as “reports from Precision doctors” and “reports from non-precision Doctors”.[121] He forcibly set out his opinion that the plaintiff had a minor and resolved left elbow and neck injury from the assault and no work-related injury to the left shoulder or back. He said he also strongly stated that the plaintiff had work capacity. For the avoidance of doubt, he made it clear how he differed from Professor Bittar.
[120] DCB 66.
[121] DCB 70-71.
171Dr Menz examined the plaintiff once again on 7 February 2023 and then reported for a final time on 15 February 2023.[122] He described the plaintiff as presenting as “severely disabled” which Dr Menz said was then “totally functional”.[123] He said that having re-examined the plaintiff it confirmed what he had said in his report of 13 September 2022. He then ‘went down the wicket’ and said, “there is a significant functional component associated with this man’s ongoing symptoms encouraged by the clinicians from the Precision Clinic”.[124]
[122] DCB 96
[123] DCB 104.
[124] DCB 105.
172Dr Menz said that the plaintiff was fit for a return to his pre-injury employment and had a capacity for suitable employment at full time hours.[125]
[125] DCB 106.
173Dr Menz’s opinions are clear and speak for themselves, even if some border on advocacy. They do not support the plaintiff’s claim. Overall, I prefer his evidence over some of the other medical evidence, such as the opinions from Professor Bittar and Dr Sullivan. But, to be clear, in doing so I have not relied on his evidence of the clinicians at the Precision Clinic having “encouraged” the plaintiff’s ongoing symptoms. That could be interpreted as speaking of improper treatment. It is a gratuitous comment that I do not accept as borne out by the evidence.
(iii) Mr David Merenstein and Dr Michael Baynes
174There are other reports tendered by the defendant, but they were not a focus of either side and do not add a lot to the discussion. I have read the reports from Mr David Merenstein, General Surgeon and Dr Michael Baynes, specialist in Occupational Medicine. It is unnecessary to say much more than they do not support the plaintiff and I have taken them into account.
175But of some relevance is the evidence in the report from Mr Merenstein dated 18 June 2019.[126] Mr Merenstein examined the plaintiff and in several ways his examination findings, history and opinions support what Dr Menz had to say at about that time. Mr Merenstein diagnosed a left elbow injury and contusion and also a soft tissue injury to the neck.[127] He recommended ongoing physiotherapy and analgesia for a further eight weeks. He advised that there be a return to work on modified duties and that there should be an improvement over eight weeks. He did not record a history of any low back symptoms.
[126] DCB 19.
[127] DCB 23.
176Therefore, a consideration of the medico-legal reports relied on by the defendant support the conclusions I have already expressed and which I shall now summarise.
Summary of medical evidence regarding physical injury
177First, for the reasons expressed, a consideration of the medical evidence, leads to a conclusion that the plaintiff no longer suffers any ongoing injury to the left shoulder from the assault.
178Second, there is some equivocal evidence of ongoing left elbow injury, but there is no basis to conclude that any ongoing left elbow injury produces a “very considerable” consequence. I consider the plaintiff’s evidence of incapacity to be unreliable when the evidence from Dr Khan and Professor Patel is analysed. This unreliability has infected the material from Mr Moar and Dr Mehr, as well as the favourable medico-legal opinion tendered on his behalf. While I note the final opinion from Dr Slesenger regarding the left elbow and the considered nature of it, on balance I prefer other opinions, including Dr Khan, Dr Thomas and Dr Menz.
179Accordingly, the claim for a physical injury to the left elbow or left shoulder from the assault is not made out.
180Third, the claim for the low back from the assault is also not made out. There is no contemporaneous mention of a back problem and no real support in the medical material for such a claim. Indeed, the plaintiff really did not press such a claim – other than that it was not abandoned.
181Fourth, the focus in the presentation of his claim for an injury to the low back was on the course of employment claim. The problem with that claim is it is also not properly explained by the medical evidence. As will be clear, the medical practitioners that ultimately supported such a claim have waxed and waned over the course of their reports as to whether the back is related to the assault, or the nature of the work duties, or both, or neither. Some like Dr Mehr do not separate the two claims. But the fact of the inconsistent opinions from practitioners such as Professor Bittar, highlighted the evidentiary difficulty facing the plaintiff in linking a claimed back injury in some way to his work with the employer. This should be contrasted with the clear and consistent opinions from Dr Thomas and Dr Menz.
182Therefore, in my opinion, upon a proper consideration of the evidence, the claim for a low back injury due to the course of employment is also not made out.
183Fifth, and finally, the claim for the neck, either discretely or as part of a claimed injury to the spine, is also not made out. The plaintiff did not place much emphasis on the claimed injury to the neck, which could only be from the assault, other than that it was not abandoned, and he has described significant symptoms in some of his evidence and to the doctors. But I consider that evidence to be unreliable and the objective evidence of any neck injury from the assault is at best limited.
184The claimed neck injury as part of the spine, such as the method adopted by Dr Sullivan, highlights yet another evidentiary problem, namely that a low back injury (if it exists) due to the general nature of work duties cannot be combined with a neck injury from the assault.
185Accordingly, for the reasons given, any claim for a physical “serious injury” has not been established.
The psychiatric claim and evidence
186Based on the conclusion that the plaintiff does not have an evidentiary basis to establish an ongoing compensable physical injury, I consider that the claim based on psychiatric injury can be briefly dealt with.
187The clear emphasis in the plaintiff’s material is of psychiatric symptoms that developed due to pain and not due to the “primary” response to the assault. So it follows that if there is no evidence of a continuing work-related physical injury, then any claimed psychological symptoms cannot be causally referenced to a compensable injury and are similarly not compensable.
(i) Dr Nicholas Ingram
188The plaintiff relied upon medico-legal opinion from Dr Nicholas Ingram, consultant psychiatrist. In his first report, dated 30 November 2021,[128] he obtained a history that the plaintiff’s depressive feelings had come on in the months after the accident (the assault) and “related in part to the chronic pain in his back and elbow and the fat he had been unable to work and in part to the fact he had been unable to see his children, whom he missed tremendously”.[129]
[128]PCB 202.
[129] PCB 203.
189Dr Ingram went on to say that the plaintiff had become depressed as a result of his pain and inability to work and the subsequent financial problems, as well as the fact that his relationship had ended, and he no longer had access to his children.
190Dr Ingram said that the plaintiff suffered a major depressive disorder and that “This is about 50% related to his chronic pain and inability to work and if it is accepted that his pain related to his work, this part of the depression is also related to his work”.[130]
[130] PCB 205.
191Pausing, I have already concluded that the plaintiff’s ongoing complaints of pain are not related to his work. I also assume that Dr Ingram considered the other 50% of the plaintiff’s major depressive disorder (if in fact it can be divided) to be related to the relationship breakdown and loss of access to his children.
192Dr Ingram went on to say again that the plaintiff’s main problem was his chronic pain and inability to work. He said there did not appear to be a very clear diagnosis for his pain, and it was possible the plaintiff had a chronic pain disorder. He said the situation was complex. He concluded that the plaintiff was suffering from a major depressive disorder, and he did not rule out an adjustment disorder secondary to his consequence of pain. He opined that it would be difficult for the plaintiff to work in suitable employment because of his psychiatric condition.
193In a further report, dated 3 August 2022,[131] Dr Ingram essentially repeated his earlier opinions.
[131] PCB 208.
194Dr Ingram reported again on 24 January 2023.[132] In that report he had access to psychiatric opinions from Associate Professor Doherty and also Dr Timothy Entwisle. He said there had been no change in the plaintiff’s pain or depression since he had last seen him. He thought the only thing that would help his depression would be if the plaintiff could have access to his children.[133] Dr Ingram otherwise repeated his diagnosis.
[132]PCB 213.
[133]PCB 216.
195Then, in another report dated 14 March 2023, Dr Ingram was seemingly asked to comment upon opinions expressed by Professor Doherty, namely that the plaintiff was suffering from an adjustment disorder of mild severity but that the predominant cause of that was the plaintiff suffering a feeling of separation and loneliness and alienation from his children, along with the loss of his role and status. He explained in a considered manner where and why he disagreed with Professor Doherty.[134]
[134]PCB 219.
(ii) Ms Shagufta Riaz
196I have already described the plaintiff’s psychological treatment with Ms Shagufta Riaz and set out her opinions. Her treatment concluded in March 2022.[135] In that regard, her opinions are not that helpful in a consideration of the plaintiff’s current psychological impairment.
[135] PCB 148.
197But I note Ms Riaz’s conclusion that the plaintiff’s mental health had been affected by stress in all aspects of his life including relationship breakdown and traffic offences.
198To the extent that Ms Riaz supported the plaintiff’s claim, her opinions are built around the plaintiff’s complaints of pain due to his several injuries. Obviously, the conclusions I have made about the lack of support for a claim based on a physical injury impact the weight to be attached to her opinions. Further, her opinions do not attempt to isolate any work impairment from the unrelated family stressors.
(iii) Dr Muhammed Riaz
199Next, there was treatment with the psychiatrist Dr Muhammad Riaz, who saw the plaintiff on one occasion in May 2022. He recommended the plaintiff take the medication Sertraline. Dr Riaz saw the plaintiff again on 15 June 2022[136] for a follow-up. By then, the plaintiff had not commenced Dr Riaz’s treatment recommendations.[137] Dr Riaz then reported to the plaintiff’s solicitors on 13 July 2022.[138] He said he was hopeful the plaintiff “will improve with adequate treatment of depression”.[139] He noted chronic pain and psychosocial stressors.
[136]PCB 180.
[137] Ibid.
[138]PCB 181.
[139] PCB 182.
200The thrust of Dr Riaz’s opinion is of some psychiatric incapacity, but a potential for improvement with treatment, which the plaintiff had not had. Therefore, I am not persuaded that Dr Riaz supports a conclusion that the plaintiff has a permanent psychiatric condition. Dr Riaz also makes mention of the stress caused by the plaintiff being unable to access his children. That is an understandable source of stress, but it is not work related and, in my view, it looms large in a consideration of the psychiatric opinions, but also in the plaintiff’s overall presentation.
(iv) Professor Peter Doherty
201Professor Peter Doherty, consultant psychiatrist, provided three detailed reports at the request of the defendant’s solicitors. His ultimate opinion was provided in a report dated 28 February 2023, where he said that any adjustment disorder that the plaintiff suffered was primarily due to family matters and not “the mental health consequences of the claimed injury and the subject incident”.[140]
[140] DCB 128.
202On balance, I prefer the opinions from Professor Doherty to those from Dr Ingram, because his opinions are consistent and reflect the evidence of the plaintiff’s mood deteriorating after his family moved to Sydney. Regardless, little turns on this as I consider the plaintiff’s psychiatric condition is amenable to appropriate treatment and as such is not permanent.
203Further, any psychiatric impairment from the assault needs to be considered for “serious injury” purposes in isolation from any claimed impairment from the claim based on course of employment. The medical evidence of psychiatric incapacity has not adequately dealt with this issue.
204In summary, I am not satisfied that the plaintiff’s psychiatric condition is permanent, or severe, or the cause of it can be linked causally to the assault or the course of employment claim. This claim is also not made out on the evidence.
Result
205Therefore, for the reasons given, the plaintiff’s claim for a serious injury from one or the other of his claimed physical injuries, or causes of action, or his psychiatric condition, are not made out.
206An acceptance of his claimed “serious injury” or injuries relies heavily on his subjective description of symptoms, in the face of a large body of medical evidence, especially the evidence in the first six to twelve months after the assault, that does not support his claim. Further, the lack of contemporaneous complaint of back pain and the absence of any proper evidentiary basis to overcome the lack of contemporaneous complaint of back pain, means that aspect of the case is not made out. There is also the overall confusion as to what injury is caused from either the assault or the course of employment. Disentangling – or more accurately the failure to disentangle – runs through the evidence.
207Therefore, the proceeding is dismissed.
208I shall hear from the parties as to the question of costs.
Postscript – a comment about medico-legal opinion
209A notable feature of this case is the large amount of medico-legal material, as contrasted with the relatively limited material from treating health practitioners.
210That is not to say that evidence from treating practitioners is to be automatically elevated above that from medico-legal experts. The evidence must be considered and what weight is attached to the evidence from a particular medical witness is a case-by-case approach.
211Having said that, as was said by the Court of Appeal in Petrovic,[141] the opinion of a medical witness will often be heavily dependent on the history obtained or provided to them. To pick an extreme example, the evidence from a medico-legal witness who sees a plaintiff on one occasion and is given an inaccurate history will obviously be of less relevance than, say, a treating doctor, who had multiple attendances with a plaintiff over many years and a much better history upon which to express opinions and conclusions.
[141] Petrovic v Victorian Workcover Authority [2018] VSCA 243 at paragraph 74.
212Leaving the specifics of the evidence in this proceeding to one side for a moment, a recent trend in this type of “serious injury” proceeding is the parties choosing to go back and forth between medical experts, with requests for supplementary reports, often to comment upon (criticise) opinions from other medical experts. Regrettably, and almost inevitably, it creates a doubt, or at least an impression, as to whether the expert is truly independent, or has become an advocate for a party.
213This is a practice that, in my opinion, needs to be broadly discouraged. Partisan opinions, with gratuitous comments about other experts is to be discouraged and is an unedifying development. It does not improve the quality of justice.
214Inviting medical experts to comment on opinions from other medical experts – often at a very late stage and after the timetable set by the Court for the exchange of expert opinion – is an exercise where caution and common sense should be used so the expert does not become politicised.
215If a medical expert is asked or required to comment upon reports from another medical expert, then to be of assistance there needs to be an expression of a proper path of reasoning as to why there is disagreement (or agreement) with some or all the opinion from the other medical expert.
216Further, a request to comment upon the report of another medical witness should not be an invitation to make disparaging comments about another witness unless there is a reasoned path to demonstrate the relevance of such comments. The throwing of stones between experts is unhelpful, has the potential to detract from the usefulness of the opinions and, as mentioned, does not improve the quality of justice.
217The Court must seek to give effect to the overarching purpose to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.[142] It may be that to do so the Court needs to reconsider the approach to the exchange of medico-legal reports in “serious injury” proceedings. These are issues to be considered if the current trend continues without some degree of self-regulation by all involved.
[142] Civil Procedure Act 2010 (Vic) s8.
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