Ali v Victorian WorkCover Authority
[2022] VCC 1442
•7 September 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-20-03740
| MOHAMMAD SALEH MOHAMMAD ALI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10, 11, 12 & 17 August 2022 | |
DATE OF JUDGMENT: | 7 September 2022 | |
CASE MAY BE CITED AS: | Ali v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1442 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Injury to the left forearm and hand ꟷ whether the injury impaired the function of the left upper limb ꟷ whether the injury encompassed additional injury to the left elbow, shoulder and neck ꟷ serious attack upon the plaintiff’s credit worthiness and reliability ꟷ film ꟷ film at serious odds with the plaintiff’s evidence of disablement ꟷ whether the plaintiff returned to a form of work ꟷ psychiatric injury secondary to the physical injury to the left forearm and hand ꟷ similar attack on the plaintiff’s credit worthiness and reliability ꟷ inadequate histories given to psychiatric assessors ꟷ reliability of the psychiatric evidence.
Cases Cited:Peak Engineering & Anor v McKenzie [2014] VSCA 67
Judgment: The plaintiff’s Originating Motion is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms S Bailey with Mr R Phelps | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr C Miles | Wisewould Mahony |
HIS HONOUR:
Introduction
1The plaintiff, Mr Mohammad Saleh Mohammad Ali, is a thirty-eight-year-old man who suffered an injury in the course of his employment with Australian Japanese Pty Ltd on 5 November 2016.
2The work tasks the plaintiff was required to perform with the defendant involved repairing cars and engines, driving a forklift and tow truck, and taking car parts and re-assembling them.
3On the day of the incident, the plaintiff was using an angle grinder to cut the chassis of a car in half, in order for it to then be loaded onto a truck. He held the angle grinder in his left hand. In the course of cutting through the chassis, the angle grinder kicked back and caused a deep laceration over the belly of the plaintiff’s left forearm, about halfway between his wrist and elbow.
4The plaintiff submitted that he suffered a severe permanent impairment of the function of his left upper limb. The plaintiff subsequently suffered an ensuing psychiatric disorder, and also submitted that he suffered a permanent severe mental or permanent severe behavioural disturbance or disorder.
5The defendant conceded that the plaintiff suffered a compensable injury. It denied that either injury had pain and suffering and loss of earning capacity consequences which could meet the statutory threshold.
6Ms Bailey appeared with Mr Phelps of counsel for the plaintiff. Mr Miles of counsel appeared for the defendant.
The left upper limb injury – the Plaintiff’s case
7The immediate impact of the laceration to the plaintiff’s left forearm resulted in blood spraying out from the laceration. His cousin, who was also working that day, bound the wound. He was then conveyed to Monash Hospital and treated there initially, before being transferred to Dandenong Hospital, where he underwent surgery performed by Mr Cheng Lo, plastic surgeon. The operation note discloses that the plaintiff suffered a 100 per cent division of his ulnar artery, a 90 per cent division of his ulnar nerve and a 50 per cent division of his flexor carpi ulnaris. Mr Lo considered that he had repaired each of the ulnar artery, ulnar nerve and flexor carpi ulnaris.[1]
[1] Plaintiff's Court Book ("PCB") PCB 196
8The plaintiff was discharged from the hospital on 7 November 2016 with his left forearm in a cast, which was in place for about two months. He was prescribed Endone for pain relief, but experienced an adverse reaction, which led him to cease taking it. Upon ceasing the Endone, he experienced pain in his left hand, forearm and elbow and, after some time, pain in his left shoulder and neck.
9The plaintiff was referred to hand therapy at South Eastern Hand Therapy. He had the hand therapy weekly. The hand therapist referred the plaintiff to a physiotherapist for treatment of left shoulder pain and for hydrotherapy for his left upper limb. He commenced physiotherapy treatment in January 2017, and had treatment about three times per month by massage and hydrotherapy. He currently attends hydrotherapy once a day. He was prescribed Lyrica for pain relief in December 2016, and other different medications over time, namely, Panadeine Forte, Endone and Lexapro. He was also taking Zofran to deal with nausea caused by taking medication. He has been prescribed creams to apply to the scarring to deal with itchiness and irritation caused by clothing irritating the scarring.
10It is not clear whether the plaintiff returned to see Mr Lo. He saw Mr Nelson Low, reconstructive and paediatric plastic surgeon, on 13 October 2016. He provided a report dated 28 April 2021,[2] in which he referred to the treatment provided by Mr Lo and the plaintiff’s reviews at Dandenong Hospital on two occasions, before he was discharged from care by the hospital. Mr Low referred the plaintiff to Dr Janaka Seneviratne, neurologist, for nerve conduction studies, and he also referred him to a hand therapist. At the time Mr Low saw the plaintiff, the plaintiff was complaining of a number of problems with his left upper limb, including sharp pain all the time, paraesthesia to the ulnar nerve distribution, colour changes in his hand when his hand was cold, and difficulty sleeping at night due to pain and paraesthesia.[3] Mr Low considered that the plaintiff’s signs and symptoms were consistent with chronic regional pain syndrome.
[2] PCB 114-116
[3] PCB 114-115
11There are three nerve conduction studies which have not been commented on in any significant way by any medical practitioner. It is convenient to refer to all of them at this point. The first in time was conducted by Dr Russell Rollinson, neurologist, and was conducted on 28 November 2018.[4] The second was conducted by Dr Seneviratne, on referral by Mr Low, and was conducted on 30 January 2021.[5] The last of the nerve conduction studies was conducted by Dr Ali Kian Mehr, physician and rehabilitation specialist, and was conducted on 30 June 2021.[6]
[4] PCB 201
[5] PCB 202-203
[6] PCB 206-207
12Mr Low considered that the plaintiff’s prognosis was fairly poor due to the established chronic regional pain syndrome and poor relief through the use of medication and hand therapy. He was specifically asked whether the plaintiff could engage in manual activities of pushing, pulling or lifting, repetitive pushing, pulling or lifting, overhead activities, gripping, holding, carrying, typing, writing or use of tools. He considered the plaintiff was very restricted in engaging in those sorts of physical activities. He considered that the plaintiff did not have the capacity to return to his pre-injury work and was otherwise restricted in undertaking social, domestic and recreational activities which required the use of his left hand.
13In July 2017, the plaintiff was referred to Dr Gavin Weekes, pain specialist. A large number of Dr Weekes’ courtesy letters and reports found their way into the Plaintiff’s Court Book. The plaintiff tendered only two of his reports, dated 19 March 2019[7] and 29 March 2021.[8]
[7] PCB 51-53
[8] PCB 57-60
14In his first report, Dr Weekes noted that the plaintiff first saw him on 20 July 2017. The plaintiff told Dr Weekes that he had persistent left forearm and hand pain, and neck pain with radiation of pain into his left upper limb. In relation to the plaintiff’s left upper limb injury, Dr Weekes was unaware of the operative findings and results of the operation performed by Mr Lo. At that stage, he considered that the plaintiff had some symptoms indicative of complex regional pain syndrome, including swelling, coldness and colour change intermittently affecting his left forearm.
15Dr Weekes referred the plaintiff to have an MRI scan of his neck and left forearm. It was taken on 25 July 2017.[9] I will summarise Dr Weekes’ treatment of the plaintiff’s left forearm before turning to his treatment of the plaintiff’s neck. He considered that it revealed minor scarring in the region of the previous surgery which was displacing the neurovascular bundle in that region. He did not observe any other soft-tissue mass or neuroma. He recommended that the plaintiff use Gabapentin, 600 milligrams, but it is unclear whether the plaintiff was actually prescribed it and used it. He also noted that the plaintiff was using Lyrica, Panadeine Forte and an unidentified antidepressant. He added a trial of Baclofen.
[9]PCB 199. He was also referred to have a further MRI scan by Dr Shahadot Hossain, general practitioner, taken on 9 October 2018 at PCB 200.
16Dr Weekes subsequently reviewed the plaintiff on a number of occasions on 30 May 2018, 11 September 2018, 11 October 2018, 25 October 2018, 14 November 2018, 12 December 2018 and 6 March 2019. Most of the references he made to treatment on these occasions appear to have concentrated on the plaintiff’s neck. He noted that the plaintiff was taken off Baclofen and put on a trial of Norflex, while continuing to use Lyrica, Panadeine Forte and Sertraline (known by the brand name of zoloft, an antidepressant). Later, and around November 2018, he noted that the plaintiff was using Palexia, zoloft, Lyrica and Panadeine Forte. He advised the plaintiff to cease using Panadeine Forte and Norflex, and to increase his dosage of Palexia. Despite his advice, relevant to ceasing Panadeine Forte, it would appear that on his subsequent reviews of the plaintiff, the plaintiff continued using Panadeine Forte, Sertraline and Lyrica. He advised the plaintiff to increase the dosage of Lyrica because the plaintiff told him that he was struggling to cope with the pain, I assume in his left upper limb.
17Dr Weekes recommended that the plaintiff undertake a trial of neuromodulation, I assume to treat his left upper limb pain, and for him to participate in a pain management program about the time when he last reviewed the plaintiff. After reviewing the plaintiff, Dr Weekes expressed the opinion, relevant to the plaintiff’s left upper limb injury, that the plaintiff had persistent post-operative left forearm pain, with some symptoms and signs of complex regional pain syndrome.
18In relation to the plaintiff’s neck injury, it would appear that his neck was a major focus of Dr Weekes’ attention on almost all of the occasions that Dr Weekes treated the plaintiff. In the MRI scan referred to earlier, he considered that it demonstrated bilateral facet arthropathy at C5-6, and on the right side of C4-5 and C6-7, with a mild right paracentral disc bulge at C5-6, but with no other abnormality. He offered the plaintiff medial branch blocks to his cervical spine as a diagnostic procedure, but it would appear that the plaintiff declined that offer. As I have already summarised, Dr Weekes prescribed the plaintiff medication, or at least noted that the plaintiff was taking medication of different types for the treatment of pain. In relation to his opinion relevant to the plaintiff’s neck, he considered that the plaintiff had ongoing neck pain and headaches, which were most likely secondary to cervical spondylosis and cervicogenic headaches. He considered that the plaintiff’s neck condition was related to his employment activities.
19In his second report, Mr Weekes noted that he reviewed the plaintiff on 20 June 2019, 24 July 2019, 8 January 2020 and 11 March 2021. He also noted that the plaintiff still had some signs and symptoms of complex regional pain syndrome, left upper limb pain following an ulnar nerve injury, and some symptoms and signs of cervical spondylosis, with associated cervicogenic headaches.
20Dr Weekes noted that the plaintiff had undergone a pain management program. The plaintiff described it as a pain management program at the Frankston Hospital, which he attended three days per week over a six-week period. He thought it helped him a bit, but it did not relieve the pain, nor the numbness that he was experiencing in his left forearm. He was using Mirtazapine, Sertraline and Lyrica. Dr Weekes again referred to, and discussed, neuromodulation with the plaintiff. The plaintiff declined the offer of neuromodulation, preferring to continue using Panadeine Forte, as well as the other medication.
21Dr Weekes was asked a series of questions, the first of which was for him to provide a diagnosis of the plaintiff’s injuries. He referred to the body of his report, where he said his diagnosis was to be found. It would appear that he was referring to the passage of the report which I have referred to above. He considered that there was an organic basis for both injuries. In relation to the plaintiff’s left upper limb injury, he was of the opinion that repetitive pushing, pulling, lifting, overhead activities, repetitive gripping, holding, carrying and repetitive typing, writing and use of tools, would likely exacerbate the plaintiff’s symptoms in his left upper limb. In relation to the plaintiff’s neck, he said that the plaintiff was likely to be precluded or restricted in employment which involved repetitive pushing, pulling, lifting, bending, reaching, twisting and stooping.
22Dr Weekes considered that the plaintiff had no capacity for suitable employment due to his left upper limb injury. He considered that, in relation to the plaintiff’s neck injury, he had no capacity to perform his pre-injury duties because of his ongoing levels of pain and disability. He then repeated his opinion that the plaintiff had no capacity for suitable employment, and on this occasion it would appear that he was referring to both the upper limb injury and the psychiatric injury.
23In September 2019, Dr Weekes referred the plaintiff to Dr Mehr, pain specialist. The plaintiff tendered three of his reports dated 14 February 2021,[10] 19 August 2021[11] and 24 April 2022.[12]
[10] PCB 75-79
[11] PCB 83-88
[12] PCB 93-95
24In his first report, Dr Mehr noted that the plaintiff saw him on 3 September 2019. He noted that the plaintiff was using Panadeine Forte, Mirtazapine, Sertraline and Lyrica. On examination, he noted that the plaintiff had significant tenderness in his left elbow, a positive Tinel’s sign on the ulnar nerve, grip weakness in his left hand, and some sensory disturbance over the left ulnar territory. He considered that a Ketamine infusion was not suitable for the plaintiff at that time because of the plaintiff’s psychological instability. He noted that the plaintiff engaged in a multidisciplinary program in mid-2018.
25Dr Mehr diagnosed a chronic pain condition in the plaintiff’s left elbow, forearm and left ulnar nerve territory, due to left ulnar neuralgia. He also diagnosed chronic left shoulder pain due to sensitisation of the plaintiff’s pain system, and also due to tendinitis. He considered that the plaintiff’s condition would not improve. He recommended that the plaintiff have supportive treatment by a pain management specialist, on average, every six months to one year, psychological and psychiatric support, and self-exercise.
26Dr Mehr considered that the prognosis for the plaintiff returning to his pre-injury work was poor, and the prognosis for him to return to alternative work was guarded due to his limited English, the physical limitations resulting from the plaintiff experiencing chronic pain, and the psychological impact on his memory and concentration. He was specifically asked whether the plaintiff would be precluded or restricted in pushing, pulling or lifting, repetitive pushing, pulling or lifting, overhead activities, gripping, holding, carrying, typing, writing and use of tools. He considered that the plaintiff could not engage in most of those activities, and in relation to typing and writing, he thought he could do so slowly with his right hand.
27In his second report, Dr Mehr said that he next saw the plaintiff on 15 October 2019, and subsequently reviewed him on 7 April 2021, 6 May 2021, 8 June 2021, 30 June 2021 and 3 August 2021. He noted that he was still affected by the injury to his left upper limb and that his psychological state was significantly affecting him. He noted that the plaintiff was seeing Dr Katherine McQuillan, psychiatrist. When he reviewed him on 7 April 2021, he noted that the plaintiff had developed a new pain, which was neck pain and left brachialgia. He referred to a diagnosis made by Dr Weekes of aggravation of cervical spondylosis. He noted the treatment the plaintiff was having for both his physical injuries (I assume his left upper limb, neck and left shoulder) and for his psychological state. On the occasion of some of the reviews, he referred to the medication prescribed by the plaintiff’s treating psychiatrists; his review of an MRI scan of the plaintiff’s neck, and what he considered it demonstrated; an MRI scan of the plaintiff’s neck and left shoulder, and what he considered it demonstrated,[13] and nerve conduction studies, which showed some evidence of chronic left ulnar nerve injury.
[13] PCB 204-205
28Dr Mehr essentially expressed the same opinion as he had in his previous report, relevant to his prognosis relating to the plaintiff’s capacity to return to his pre-injury work or to alternative work, and whether he could engage in the physical manual activities he was asked to comment on. One matter which he added was the impact of the plaintiff’s cervical spinal pain on the use of his right arm. He considered that the cervical spinal pain resulted in a restriction of the plaintiff’s use of his right arm.
29In his third report, Dr Mehr noted that he reviewed the plaintiff on 8 December 2021, 21 January 2022, 24 February 2022 and 31 March 2022. He discussed the benefits of the plaintiff undergoing a further pain management program. He considered that it would not change the plaintiff’s functional capacity. He essentially expressed the same opinion as he had in his previous reports, relevant to his diagnosis and prognosis relating to the plaintiff’s capacity to return to his pre-injury work or alternative work. Essentially, the effect of his opinion is that when he last treated the plaintiff, he considered that he was totally incapacitated for suitable employment. He reviewed the plaintiff’s medication ꟷ Pregabalin (Lyrica), Topiramate and Seroquel. It would appear that the plaintiff had stopped using Panadeine Forte, Mirtazapine and Sertraline.
30The plaintiff’s first affidavit, affirmed on 21 April 2020,[14] refers to the treatment which the plaintiff had for his left upper limb, neck and left shoulder from the time of the surgery. He did not refer to those injuries in much detail until he affirmed his second affidavit on 2 August 2022, which is largely devoted to the pain and suffering, and loss of earning capacity consequences, of his injuries.
[14] PCB 6-15
31The next group of medical reports dealing with the plaintiff’s physical injuries are medico-legal reports of specialists retained by the plaintiff. The first medico-legal specialist to examine the plaintiff was Dr James Rowe, specialist occupational physician. He examined the plaintiff on 20 January 2021 and provided a report bearing the same date.[15] He re-examined the plaintiff on 17 May 2022 and provided a report bearing the same date.[16] I will concentrate on Dr Rowe’s second report. It contains an adoption of the history, examination and opinion in his first report, and is an up-to-date opinion based upon the provision of further material.
[15] PCB 151-158
[16] PCB 159-170
32Dr Rowe appears to have obtained an adequate history of the treatment provided to the plaintiff by Dr Weekes, Dr Mehr, and the opinions of other medical practitioners who examined the plaintiff. Essentially, he obtained a history from the plaintiff that he was suffering from a burning pain and numbness in his left arm and hand, with associated weakness, constant neck pain resulting in stiffness on both the left and right side, and constant left shoulder pain, which worsened with use of his left shoulder. He also obtained a history of the ways in which those injuries impacted upon the plaintiff’s day-to-day life. He noted, on examination, slight restriction of movement in the left shoulder, elbow, wrist and hand, with some left forearm and upper arm wasting when compared to the right arm, and some restricted range of movement in his neck. He noted a loss of grip strength in the plaintiff’s left hand.
33Dr Rowe considered that the diagnosis of a neuropathic regional pain syndrome was reasonable and an appropriate diagnosis. It was a diagnosis arrived at by Dr Symon McCallum, pain physician and specialist anaesthetist, whose reports I will summarise next. Dr Rowe noted, in the course of summarising the opinions of other medical practitioners, that there were different diagnoses provided relevant to the plaintiff’s left upper limb injury, and in particular, different types of pain syndromes. This is something I will return to later in these Reasons. He considered that the plaintiff would be restricted in engaging in work activities involving a strong grip with his left hand, lifting and carrying over two kilograms with his left hand, repetitive or forceful use of his left arm, and pushing and pulling with his left arm and hand. He then considered that, because of the injury to his neck, he would be restricted in activities involving heavy lifting and carrying, prolonged static neck postures, stooping and crouching, and sudden or repetitive head movements.
34Dr Rowe considered that the overwhelming barrier to the plaintiff returning to any employment was the development of a regional pain syndrome. He considered that he had a theoretical capacity to return to suitable employment, but “no real-world capacity”,[17] and he considered that was the case for the foreseeable future. He considered that the injury had resulted in incapacity for work and overall disablement, which substantially stemmed from the plaintiff’s organic injuries. However, it is to be noted that, in describing a regional pain syndrome and giving the latter opinion, he did not distinguish between the contribution by the plaintiff’s left upper limb injury and his neck injury. This is again something I will return to later in these Reasons.
[17]PCB 168
35Dr McCallum examined the plaintiff on 26 February 2021 and provided a report dated 27 February 2021.[18] He re-examined the plaintiff on 31 May 2022 and provided a report bearing the same date.[19] I will concentrate on Dr McCallum’s second report. It contains an adoption of the history, examination and opinion in his first report, and is an up-to-date opinion based upon the provision of further material. Dr McCallum obtained an adequate history of the treatment provided to the plaintiff by his treating medical practitioners, and the opinions of other medical practitioners who examined the plaintiff. Essentially, the plaintiff reported that he was suffering from a clicking sensation of movement in the left elbow, constant pain in the forearm, wrist and part of the hand, burning pain in the medial two fingers and the palm, and a clicking sensation in his thumb. Additionally, Dr McCallum noted that the plaintiff experienced neck pain with tightness bilaterally in his neck, headaches in the occipital area, and sensitivity in his left shoulder and neck.
[18] PCB 171-177
[19] PCB 178-183
36On examination, Dr McCallum noted that he could not elicit a triceps or supinator jerk bilaterally. He found slight decrease in power in the left elbow. He found a mild decrease in sensation in the left ulnar nerve distribution, with tenderness in the left ring and little finger. He found tenderness in the muscles on the left side of the neck of the trapezius, but otherwise a good range of internal and external rotation of the shoulders.
37Dr McCallum considered that the plaintiff did not meet the criteria for complex regional pain syndrome. He considered that he had a chronic pain syndrome with central sensitisation, that the pain in the ulnar distribution was neuropathic, that the pain in his left arm was myofascial pain, that the left-sided trapezius muscle pain was due to the abnormal posture of the left arm, and the neck pain was muscular in origin secondary to the disuse of the left arm.
38Dr McCallum considered that the plaintiff was not able to return to his pre-injury employment. He then looked at the plaintiff’s capacity to return to suitable employment through, what he described as, a medico-biopsychosocial approach, which encompassed the injuries, and their severity on his mood and level of functioning. He did not think that the plaintiff had any physical capacity to perform any work in the future, even on extremely light duties. I assume that opinion was based upon the organic injuries which he understood the plaintiff had suffered. Overall, he considered that the plaintiff was greatly disabled and had a very poor level of functioning. He added that he did not think the plaintiff had a current capacity for work, and he noted one of the barriers to the plaintiff returning to suitable employment was his lack of English.
39Mr Ash Moaveni, orthopaedic surgeon, examined the plaintiff on 17 March 2022 by Telehealth. He provided a report dated 21 March 2022.[20] Mr Moaveni obtained an adequate history of the treatment provided to the plaintiff by his treating medical practitioners, and the opinions of other medical practitioners who examined the plaintiff. He obtained a history from the plaintiff that he was experiencing constant neck pain, with stiffness on both sides of his neck, constant left shoulder pain, which worsened with use, constant left forearm pain, with sensitivity over the scar, pins and needles in his elbows (I assume he intended only to refer to the plaintiff’s left elbow) and shaking of his little finger. The plaintiff also told him that overusing his right shoulder in compensating for the problems with his left shoulder and arm resulted in right shoulder pain. His description of his examination of the plaintiff was brief and revealed altered sensation in the distribution of the branches of the ulnar nerve in the left forearm, shaking of the little finger, and a near normal range of motion in the left shoulder, elbow, wrist and hand.
[20] PCB 184-192
40Mr Moaveni considered that the angle-grinder incident resulted in damage to the plaintiff’s left ulnar nerve, left ulnar artery and flexor carpi ulnaris. He considered that there was an element of neuropathic pain in the ulnar distribution in the plaintiff’s left forearm and hand. He then addressed a causation issue based upon his understanding that, because of the lack of use and/or abnormal use of the left arm, the plaintiff had developed a myofascial pain syndrome in his neck, left shoulder and left elbow. He described the syndrome as being an organic chronic pain disorder, where pressure and use of muscles cause pain in the muscles and other unrelated parts of the body, resulting from referred pain. He added that lack of muscle activity is a recognised course of myofascial pain syndrome.
41Mr Moaveni considered that the plaintiff had functional limitations relevant to turning, twisting, lifting, carrying and reaching with his left hand, and because of those functional limitations, he would require permanent work restrictions, including limited lifting, carrying, reaching, pulling, pushing, loading and repetitive activities of the left arm. He considered that the plaintiff was unfit to return to his pre-injury employment, and otherwise did not have a capacity to return to suitable employment. He added that he did not think the plaintiff could return to any form of suitable employment on a reliable and consistent basis. He added that his opinions, relevant to diagnosis and the plaintiff’s capacity to return to suitable employment, were based upon an organic component to the plaintiff’s pain, and that the organic component was the core of the plaintiff’s disability.
42For the sake of completeness, the plaintiff was treated by Dr Shahadot Hossain and Dr Moheb Gerges, both general practitioners at the Lynbrook Village Medical Centre. They both provided medical reports which only very briefly outline the plaintiff’s medical treatment.[21] Their opinions are consistent with the medical practitioners whose evidence I have summarised above. Neither party spent any time referring to their opinions, preferring to concentrate on the opinions of the other medical practitioners. Suffice to say, they accepted that the plaintiff suffered a significant injury to his left upper limb encompassing his left elbow, shoulder and neck, and also a secondary psychiatric injury. They also accepted that his injuries have seriously impacted upon his working and non-working life.[22]
[21] PCB 61-62, 63-67, 68-70
[22] PCB 61-70
43The plaintiff affirmed two affidavits on 21 April 2020[23] and 2 August 2022.[24] In his first affidavit, he described the pain and suffering consequences of both his left upper limb and neck in significant detail. I propose to provide a simple summary only:
Left upper limb
· He experiences a burning pain and pins and needles in the left hand and forearm, and intermittent numbness.
· He is woken from sleep because of pins and needles.
· A number of his fingers are numb.
· His left thumb moves involuntarily.
· His left little finger shakes, also involuntarily.
[23] PCB 6-15
[24] PCB 16-25
Neck
· He experiences neck pain which persists for two to three days.
· His neck pain causes stiffness and pain resulting in headaches about twice a week.
44The plaintiff referred to suffering pain in the back of his left shoulder, but did not specifically refer to the nature and extent of that pain in the same way as he did relevant to his left upper limb and neck. The plaintiff then referred to the consequences of the impairment of the function of his left hand ꟷ difficulty engaging in domestic tasks, such as cleaning around his house, vacuuming, and cutting the grass. He is unable to play basketball with his son. He finds it difficult to turn on a tap or open a jar with his left hand. He struggles to lift weights of more than three kilograms in his left hand. He is unable to swim any longer. The balance of the consequences referred to by the plaintiff appear to be related to his psychiatric injury.
45In his second affidavit, he also described the pain and suffering consequences of both his left upper limb and neck in significant detail. He firstly said that that the symptoms he described in his first affidavit remained largely the same, and then he added the following:
Left upper limb
· The burning pain in his left hand and forearm is constant, but varies in intensity.
· The pain in his left upper limb extends from the tips of his fingers, up his left arm and into his elbow, and then to the top of his left shoulder and into the left side of his neck.
· The fingers of his left hand tend to lock. He massages them in order to return movement.
· He continues to experience the involuntary movement in his fingers.
· He tends to wear gloves on his left hand and a bandage around his left arm to keep his left arm warm.
· The plaintiff described limitations on driving, reaching, pushing and pulling movements, lifting and reduction in grip strength.
· His sleep is interrupted because of the pain he experiences when he lies on his left side.
Neck
· He experiences constant pain in his neck with a feeling of heaviness, and persistent headaches.
· He has difficulty moving his neck with the following movements, resulting in aggravation of the pain in his neck: Turning his head to the side is worse to the left than the right, looking up or down, lifting, reaching, and pulling or pushing.
· He experiences constant stiffness in his neck, which is worse during cold weather and when he first wakes up.
The films
46The defendant made an attack on the plaintiff’s creditworthiness and reliability through films taken of the plaintiff between September 2017 and June 2022, and also through Facebook postings and banking records. I will refer to the films, and the cross-examination of the plaintiff, before turning to how the defendant chose to rely upon the medical evidence which it acquired from a number of medical practitioners.
47The first film was taken on 4 September 2017, commencing at 8.06am (1.44 minutes). The film showed the following:
· The plaintiff moved around a number of cars parked outside his home.
· He removed a child’s car seat from a red Toyota Corolla and placed it into the passenger side of a white Holden Rodeo utility.
· He carried the child’s car seat in his right hand. He placed it in the Holden Rodeo using both hands, and then used both hands to fix it into position, and then to buckle his son into the car seat.
48Under cross-examination, the plaintiff agreed he was the person shown in the films. He agreed that he was not wearing a glove over his left hand. He said that he does not wear gloves during warm conditions, but he wears a jumper all the time.[25] That is in stark contrast to his earlier evidence. When he was cross-examined earlier, relevant to the pain he experiences in his left hand, he said that he wears the glove all the time, even at night. He held up his left hand, which was covered in a large black glove which extended part of the way down his forearm. He then held up a smaller fingerless glove which he said he wore in sunny conditions.[26]
[25] Transcript (“T”) 84
[26] T26-27
49The next film was taken on 26 September 2017, commencing at 11.39am (7.11 minutes). The film showed the following:
· At around 11.39am, the plaintiff put his son into the Holden Rodeo and drove to a shopping centre, arriving at about 11.41am.
· He entered a Flight Centre shop and sat talking to a customer service worker. He then walked around the shopping centre.
· At around 11.46am, he and his son entered the Holden Rodeo. He parked the car, reversing it into a car parking space.
· At around 11.53am, he alighted from the Holden Rodeo with his son. He removed a wheelie bag, and walked with the wheelie bag and his son into a building.
· At around 1.06pm, the plaintiff returned to the Holden Rodeo. He placed his son in the car seat and used both hands to buckle him in. He placed the wheelie bag into the car and then drove away.
50Under cross-examination, the plaintiff doubted that he had attended at a Flight Centre.[27] The building he entered with the wheelie bag was the Casey Aquatic Centre. The wheelie bag contained his clothing.[28] The plaintiff was not wearing a glove. Although, the plaintiff was not seen doing anything particularly strenuous with either hand, he appeared to use his left hand freely and without restriction.
[27] T84
[28] T84
51The next film was taken on 9 October 2017, commencing at 9.48am (1.29 minutes). It showed the plaintiff walking in his front garden. He entered the Holden Rodeo and drove off. He was next seen briefly walking in a carpark, then entering the car and driving off. He was not cross-examined on the content of the film.
52Another film was taken on 26 November 2018, commencing at 11.31am (3.53 minutes). It shows the plaintiff and his wife in a Bunnings hardware store. Together, they loaded nine packages of tiles onto a trolley. The plaintiff lifted some of the packages and placed them on the trolley. He stood at the handle of the trolley while his wife pulled it. He appeared to be doing more of the steering than actual pushing of the trolley. The plaintiff and his wife were then at a checkout, and then they steered the trolley down an aisle. The plaintiff took hold of the handle of the trolley, firstly with his left hand and then with his right hand, and then used both hands to push the trolley down the aisle.
53Under cross-examination, the plaintiff denied that he was pushing the trolley with both hands.[29] He said he was pushing it with his right hand and holding onto the trolley with his left hand. He agreed that he was not wearing a glove, but said that he had a “band aid” and was wearing a jumper.[30] He could not remember how the packages were loaded into his car and by whom, and how they were unloaded and by whom. He said that, if he loaded or unloaded, he would have done so with pain.[31] The plaintiff was wearing a long-sleeved jumper. If he was wearing, what he described as a “band aid”, there was nothing visible over his hand and wrist.
[29] T85
[30] T85
[31] T85
54The next film was taken on 3 August 2020 (9.22 minutes). The film showed the following:
· At about 11.07am, the plaintiff alighted from a black SUV. He walked away from the car and then returned to it and drove off.
· At about 11.39am, he was walking along a street holding his phone in his left hand. He was holding it up reasonably close to his face so that he could see the screen of the phone. He looked down at it frequently.
· At about 12.46pm, he was walking down a street with gloves on both hands, and at about 12.54pm, when he was next seen, he was not wearing gloves.
· The plaintiff was then filmed on several occasions for short periods of time. At 12.55pm, he was walking while swinging both of his arms beside his body quite freely. At 12.57pm, and again at 1.01pm, he was holding his phone in his left hand; and at 1.01pm, he spoke to another man for a minute or so, with both looking at their phones.
· At about 1.08pm, and over the next few minutes, he held his phone to his ear using his left hand, and at about 1.25pm, he drove off in his car.
55Under cross-examination, it was put to the plaintiff that he attended a medical appointment with Associate Professor Umberto Boffa, occupational and environmental physician. I gathered from his answer that he agreed he was attending a medical appointment, but he could not remember who he saw. It was put to him that he was not wearing a glove until he arrived at Associate ProfessorBoffa’s rooms. He gave an unresponsive answer. In the course of the cross-examination about this film, the plaintiff said that the glove psychologically bothers him, so he takes it off, and on this occasion he had it in his pocket.[32] He agreed that he could hold the phone to his ear with his left hand, and added that doing so caused pain, depending on the weather. He said he was on heavy medication at around the time the film was taken.[33]
[32] T86
[33]T86-87. According to Associate Professor Umberto Boffa, the plaintiff saw him on 3 August 2020 at his rooms at 20 Collins Street, Melbourne (see Defendant’s Further Amended Court Book (“DCB” 84)
56The next film is a compilation of film taken on 10 March 2021, 18 March 2021 and 21 March 2021 (16.36 minutes).
57The film of 10 March 2021 commenced at 8.05am and was of two minutes’ duration. It showed the outside of the plaintiff’s home, where a number of cars were parked. He walked around the front garden, and at about 8.07am entered a black SUV, reversed and drove off.
58Under cross-examination, the plaintiff was asked to identify a number of cars parked outside his home. He identified the following as being his cars ꟷ a Toyota Land Cruiser, a black Kia, a white Toyota utility and a Toyota Hilux. He said that a brown Corolla hatch and a silver Hyundai might have been his neighbours, and although it was an unresponsive answer to a direct question whether they were his cars, I took his answer to mean that they were not his cars.[34] He was not wearing a glove at any stage.
[34] T87-88
59Under further cross-examination, he agreed that he attended premises at 39 Collison Road, Cranbourne. He said that he went to that address “because one of my client ask me to take their car from there”.[35] He said that he went to that address to collect a car, which he then took to a wrecker, to whom he sold the wreck.[36]
[35]T88
[36] T88
60The next film in the compilation was taken on 18 March 2021. The film showed the following:
· At about 9.05am, the plaintiff was sitting in the driver seat of a red car for some minutes before alighting. The car appeared to be parked outside his home.
· At about 9.09am, the plaintiff walked around the front of his home. He held a phone in his left hand up to his left ear and spoke for some minutes intermittently. He opened the lid of a wheelie bin with his left hand briefly. He otherwise moved wheelie bins using his right hand.
· At about 9.11am, he got into a red car and drove it onto the nature strip. He then alighted from the car holding a number of pieces of fruit in his left hand held against his chest.
· At about 10.34am, he was again using the phone in his left hand. He drank from a soft-drink can, holding it in his left hand and raising the can to his mouth, tilting his head back, and tilting the can while he drank from it.
· At about 10.35am he reversed a black car into the driveway of his home.
61Under cross-examination, the plaintiff agreed that he was using the phone in his left hand, and carried fruit in his left hand. He then said that he uses his left hand sometimes, but when he does, he always has pain in his left hand. He agreed that he held a soft-drink can in his left hand and drank from it. He said, using his left hand to hold the soft-drink can, was maybe the one occasion that he had done that.[37]
[37] T88-89
62The next film in the compilation was taken on 6 April 2021. The film showed the following:
· At about 10.01am, the plaintiff drove to an automotive premises with signage describing it as Tyre Tread. He walked along a laneway looking at a white van parked in the laneway. He walked up to the front of Tyre Tread and then walked back to the laneway.
· At about 10.02 am, he entered the rear of a premises of some kind through a sliding door off the laneway.
· Between 11.25am and about 12.54pm, intermittent small sections of film were taken of the plaintiff walking around his house holding the phone in his left hand, sitting in the Holden Rodeo and driving it.
· At about 12.54pm, he parked the Holden Rodeo in a street. He spoke to an unidentified man. The film then shows a large car-carrying truck backing into the driveway of a house. It was carrying a black van.
63Under cross-examination, the plaintiff was asked a number of questions about his activities on that day. He agreed that he was in the area of Tyre Tread. He said that he went there because a friend of his who lives there asked him to go there. He said that he then walked into a factory area through the sliding door.[38]
[38] T89-90
64Under further cross-examination, he said that he could not remember looking at a green Chrysler van in Scoresby West, but maybe he did. He then said that he could not remember going to other premises at 97 George Street and looking in the front yard at another vehicle, but maybe he did. He then said that he normally purchased cars, not as wrecks, but to fix them up. He said that he could not remember whose black van it was on the car-carrying truck. He said that he just went to the premises where that activity was seen on the film, and then said he could not remember why he was there. When he was asked whether he followed the car-carrying truck, he said that maybe that was the case, but he was simply travelling in the same direction as the car-carrying truck.[39]
[39] T90-91
65Under further cross-examination, the plaintiff agreed that he was wearing a T-shirt, and was not wearing a bandage on his left upper limb. He then said that he had to take the bandage off and his reason for doing so was “you don’t realise how painful it is to carry that bandage in warm weather. And I had some rashes in my hand, and I had to take it off ”.[40]
[40] T91
66The next film is a compilation of films taken on 26 and 27 May 2021 (22.04 minutes).
67The film of 26 May 2021 was of 20.19 minutes duration. It showed the following:
· At about 11.26am, the plaintiff drove his Holden Rodeo to a business premises, arriving there at about 11.51am. He parked in the driveway and then drove away.
· At about 3.00pm, the plaintiff was in a pokies’ venue for some unspecified period of time. He then left the venue, returned to his car and drove off.
· Between about 3.21pm and 3.39 pm, he was involved in a sustained episode of collecting small pieces of timber, which he loaded into the tray of his Holden Rodeo utility. His car was backed up to the rear of a factory premises. In summary he did the following:
§He grabbed small pieces of wood from a red wheelie bin, which appeared to be offcuts of some kind, and threw them into the utility. He used both hands.
§At one point, he lifted the wheelie bin with both hands to a height where he then emptied the remainder of its contents into the utility, and then lowered the wheelie bin.
§On about three occasions, he had piles of wood which he carried in his extended arms against his chest. The piles appeared to be substantial. On one occasion, he carried a similar-sized pile, only using his left arm. He threw the piles of wood into the utility.
§This episode loading the wood into the utility concluded at about 3.39pm, when the plaintiff then used both hands to pull a tarpaulin taut over the piles of wood in the utility.
· At about 4.17pm, the plaintiff went to a wrecker’s yard. He assisted two men wearing orange fluoro jackets to push a red sedan car backwards. The plaintiff took up a position on the passenger side and appeared to apply both hands to the body of the car, and then applied effort in pushing it backwards.
· What immediately followed, was the plaintiff and the two men pushed the red car into the wrecking-yard premises. The plaintiff took up a position at the rear of the car. He applied the palms of his outstretched hands against the rear of the car, and then inclined his body into a position where he appeared to apply force through his arms in order to push the car enough for it to pick up momentum. Once it was in the wreckers’ yard, he placed his left hand on the rear passenger-side of the car and appeared to apply a degree of force through his outstretched arm.
· The plaintiff appeared to remain at the wreckers’ yard for some time, and at 4.42pm, he left carrying a car part of some sort in his left hand. He entered the Holden Rodeo and drove off.
68Under cross-examination, the plaintiff agreed that he went to the rear driveway of Winna Furniture and that he engaged in loading offcuts of wood into the tray of his Holden Rodeo utility. He said that he had pain in his left upper limb while he was handling the wood. When he was asked about carrying bundles of wood in his left arm, he said that it was a mistake to have used his left arm.[41]
[41] T92
69Under further cross-examination, he agreed that he went to a wrecking yard. He agreed that he pushed a red Subaru Forester car, and the reason why he did that was because his friend asked for his assistance. He said that he did not put much force into pushing the car, using his left hand less than his right hand. He went there because he was bored at home, and he needed to do something to pass the time. He agreed that he carried a car radio in his left hand, which he was going to install into another car.[42]
[42] T93
70The next film in the compilation was taken on 27 May 2021, commencing at about 9.14am, and was of about three minutes’ duration. It showed the plaintiff walking, driving his Holden Rodeo and, at about 9.36am, he unloaded wood from the tray of the car using both hands, and at one point held a moderate-sized bundle in his left arm.
71The next, and last, film was also a compilation taken on 22, 23 and 24 June 2022 (7.56 minutes). The film taken on 22 June 2022 (about 1.30 minutes) showed the plaintiff outside his house driving a small blue car, standing outside his house and walking around. The film taken on 23 June 2022 (just under five minutes) showed the plaintiff outside his house and then sitting in the small blue car for some minutes, before alighting from the car and standing on the street outside his house. He was holding a phone in his left hand. It appears that he was wearing a fingerless glove on his left hand, but it was difficult to make that out clearly. He later entered the small blue car and drove off. At about 9.13am, he was in a garden area. Again, it appeared that he was wearing a fingerless glove on his left hand. The film taken on 24 June 2022 (just under two minutes) showed the plaintiff with his wife outside their house. They entered a small white car. Later, he alighted from the small white car with his two sons. He walked around the front of his house. On this occasion, there was no sign of a fingerless glove on his left hand.
72Under cross-examination, he said that the small white car is a Toyota belonging to his wife. He could not recall how long she had owned the car. He agreed that he was seen in the film holding a piece of metal in his left hand and a phone. I should interpose here that I was unable to see him holding something in his left hand resembling a piece of metal, even after watching the film carefully. He agreed that there were a number of cars outside his house. He agreed that he currently has about six cars. He denied that he has been conducting a business buying and selling cars and wrecking cars.[43]
[43] T94-95
73The defendant submitted that one of the issues in the application is whether the plaintiff has set up a business buying and selling cars, or selling car parts. Under cross-examination, the plaintiff was asked to identify all the cars seen outside his house, and in particular, whether they are his cars, when they were purchased, and whether they are part of such a business. He identified that he has a Toyota Corolla and a Toyota Hilux registered in his name, and his wife has a Toyota Hilux, a Toyota Prado and a Toyota Camry registered in her name.[44]
[44] T34
74Under further cross-examination, the plaintiff agreed that he was engaged in buying and selling cars. He gave an equivocal answer that he may have commenced doing that in 2018.[45] He purchased cars privately through Gumtree. He intended to buy cars to repair, and sell them for a profit, but he said that he had many cars just sitting around which he was unable to fix. He was asked about cars he bought into 2018, 2019, 2020, 2021 and this year. His invariable answer was that he could not remember whether he purchased cars in any of those years, how many he purchased, or when he sold any of the cars that he had in his possession.[46]
[45] T35
[46] T37-41
75Furthermore, the plaintiff was taken to his Facebook pages and to a significant number of entries which the defendant submitted were advertisements for sale of cars and car parts, among other items, placed on Facebook by the plaintiff.[47] By agreement, the plaintiff prepared a table identifying each of the cars and car parts advertised on Facebook, and the plaintiff’s answers under cross-examination. I will now summarise what I understand are the cars and car parts advertised on Facebook, the date they were advertised, and who the plaintiff said was the owner of what was advertised:
[47] PCB 146-252
· 11 June 2020 ꟷ an advertisement for a bull bar. The plaintiff said it belonged to his cousin.[48]
[48] T58
· 14 July 2020 ꟷ an advertisement for tyres. The plaintiff said it was a spare tyre from a Land Cruiser.[49]
[49] T45
· 19 July 2020 ꟷ red 1996 Toyota Corolla. The plaintiff said that it belongs to his sister-in-law.[50]
[50] T58
· 17 October 2020 ꟷ white Toyota Hilux. The plaintiff said that it belonged to his cousin, who left it at his house.[51]
[51] T56
· 13 December 2020 ꟷ large white utility. The plaintiff said that it belonged to a friend, who left it at his house.[52]
[52] T56
· 20 December 2020 ꟷ red Toyota Land Cruiser. The plaintiff said he purchased it about three years ago for the purpose of repairing and selling.[53]
[53] T52
· 5 February 2021 ꟷ green station wagon. The plaintiff said he was selling parts from it.[54]
[54] T54
· 12 February 2021 ꟷ green Toyota. The plaintiff could not recollect whether the car is his or not.[55]
[55] T55
· 8 April 2021 ꟷ silver Holden Astra. The plaintiff said he purchased it before he suffered injury and was selling parts from it.[56]
· 30 June 2021 – black Kia. The plaintiff said he purchased it when members of his family came from New Zealand so that it could be used as a family car.[57]
· 13 October 2021 ꟷ black Peugeot. The plaintiff said it was written off after an accident.[58]
· 25 October 2021 ꟷ white Ford sedan. The plaintiff said it was a friend’s car, and he was selling it for his friend.[59]
· 13 November 2021 ꟷ white 1998 Toyota Hilux. The plaintiff said he bought it a long time ago, and subsequently sold it in 2021.[60]
· 23 December 2021 ꟷ red 1996 Toyota Hilux. The plaintiff said it belonged to his wife and is still for sale.[61]
· 13 February 2022 ꟷ Ford Explorer. The plaintiff said he was selling the wheels from it.[62]
· 16 March 2022 ꟷ blue 2004 Toyota Corolla. The plaintiff said he was selling parts from it, and it is still listed for sale.[63]
· 7 April 2022 ꟷ white Toyota Camry. The plaintiff said it is his car and is not for sale.[64]
· 25 June 2022 ꟷ tyres from a Nissan Navarra. The plaintiff said the tyres are still for sale.[65]
[56] T52
[57] T51
[58] T46
[59] T50
[60] T47
[61] T47-48
[62] T59
[63] T44
[64] T46
[65] T59
76The plaintiff was taken to his ANZ banking account, and in particular, to a selection of deposits which the defendant reproduced in a table form in its Court Book.[66] The defendant produced two schedules. The first schedule commences with an item dated 29 November 2016 and ends with an item dated 9 July 2021.[67] The second schedule commences with an item dated 24 July 2017 and ends with an item dated 9 July 2021.
[66] DCB 262-267
[67] DCB 262-265
77Under cross-examination, the plaintiff agreed that the deposits made by “Omega Metal”, “Danny Scrap”, and “Absolute Metal”, are references to scrap dealers who made deposits into the plaintiff’s ANZ banking account in payment for scrap sold by the plaintiff.[68] The plaintiff added up the total amounts received by the plaintiff for the sale of cars and scrap derived from the two schedules. The defendant did not cavil with the following:
· 2017 ꟷ $2,000
· 2018 ꟷ $23,775
· 2019 ꟷ $11,051
· 2020 ꟷ $6,750
· 2021 ꟷ $500.[69]
[68] T67
[69] Referred to in the plaintiff's written submissions, dated 17 August 2022 at paragraph [54].
The left upper limb injury ꟷ the Defendant’s medical evidence
78Dr John Anstee, plastic and reconstructive surgeon, examined the plaintiff on 23 February 2017 and provided a report of the same date.[70] He further reviewed the plaintiff on 27 February 2018 and again provided a report of the same date.[71] I will concentrate on Dr Anstee’s second report. It contains an adoption of the history, examination and opinion in his first report, and is an up-to-date opinion based upon the provision of further material.
[70] DCB 15-24
[71] DCB 25-32
79At the time Dr Anstee examined the plaintiff on the second occasion, it was about sixteen months after the occurrence of the incident. He expressed a very optimistic outcome for the plaintiff. On examination, he considered that the function of the flexor carpi ulnaris tendon was near-normal, and the ulnar artery was functioning normally. He assessed weakness in the interosseous muscle which is innervated by the ulnar nerve. He assessed complete paralysis as grade “0” and normal power as grade “5”. He assessed the plaintiff as being about grade “4”, which is near to normal. He noted that the plaintiff’s grip strength on the left side was significantly reduced. He also noted a loss of sensation in the plaintiff’s little finger, and on the ulnar side of the ring finger, which he considered was of concern, because the plaintiff might suffer a thermal injury, and I understand that to mean he would not experience the sensation of heat applied to his little finger.
80Dr Anstee considered that the plaintiff should continue with physiotherapy and hydrotherapy and also the use of medication. At that time, he noted the plaintiff’s medication regime was Lyrica, Endone, Panadeine Forte, Panadol and Escitalopram. He considered that the plaintiff needed to pursue that medical treatment because he had not yet achieved a normal range of motion in his left wrist and hand, and I assume he anticipated that would not occur without treatment. He considered that the plaintiff could return to modified pre-injury duties using mostly his dominant right hand.
81Dr Anstee understood that the plaintiff complained that he was experiencing pain radiating up his arm into his left shoulder and neck. He considered it was appropriate to investigate the plaintiff’s left shoulder and neck, but he doubted the causal connection between the incident and the onset of those complaints.
82Dr Marcus Navin, occupational medicine physician, examined the plaintiff on 13 September 2017 and provided a report dated 20 September 2017.[72] His examination of the plaintiff demonstrated that the plaintiff had achieved a level of recovery enabling him to undergo a work trial on light duties. He considered that the plaintiff could return to modified duties on limited hours of five days per week for two to three hours per day, to be reviewed after three months. He also obtained a history of pain encompassing the whole of the plaintiff’s left upper limb, shoulder and neck, resulting in headache. On examination, he found a relatively-normal range of movement of the plaintiff’s elbow, shoulder and neck.
[72] DCB 33-43
83Dr Roy Karna, rheumatologist, examined the plaintiff on 16 July 2019 and provided a report dated 23 July 2019[73] and a supplementary report dated 21 August 2019.[74] The purpose of the examination was to undertake an impairment assessment of the plaintiff’s neck. Dr Karna noted that he had previously undertaken an impairment assessment of the plaintiff’s left upper limb when he previously saw the plaintiff on 19 July 2018. He was aware of the treatment which the plaintiff had obtained from Dr Weekes. He obtained a history that the plaintiff began to experience neck pain after he ceased using Endone. On examination, he found little abnormality except for tenderness to palpation along the posterior region of the left trapezius muscle on the left paravertebral region of the neck. He also noted mild upper-quadrant dermatographia on the left side, more than the right side, of the upper quadrant. I understand dermatographia to be marking showing up on the skin to light touch. I am not sure what clinical significance Dr Karna attached to that sign.
[73] DCB 72-75
[74] DCB 77
84Dr Karna noted that the plaintiff had experienced a secondary psychological/psychiatric reaction to the injury to his left upper limb. He considered that there was no objective evidence to suggest a structural organic injury to his neck. He considered that the plaintiff was suffering from a chronic psychogenic-driven pain syndrome. He concluded that there was no physical basis upon which he could conclude that the plaintiff had suffered an assessable impairment to his neck.
85Associate Professor Boffa examined the plaintiff on 13 September 2018, and provided a report bearing the same date.[75] He reviewed the plaintiff on 3 August 2020 and provided a report dated 9 August 2020.[76] He noted that the plaintiff complained of pain in his left shoulder girdle and intermittent left little and ring finger paraesthesia, and limited function of his use of the left hand in performing simple domestic tasks. He noted, on examination, that the plaintiff was wearing a compression bandage over the right wrist and forearm. He noted the same organic deficits as were noted by Dr Anstee and, indeed, he had been provided with Dr Anstee’s report. He noted an active transverse trapezial trigger point to the plaintiff’s “right shoulder”, with referral to the left little and ring fingers. I assume he meant left shoulder. Otherwise, he found no other abnormality on examination.
[75] DCB 79-83
[76] DCB 84-87
86Associate Professor Boffa diagnosed a mild-left upper-quarter myofascial pain syndrome and residual ulnar nerve damage. He was asked to consider whether the plaintiff had a residual capacity for suitable employment, and if so what. He considered that the plaintiff had a capacity for full-time work so long as he avoided repetitive gripping, pushing, pulling, lifting and carrying more than three kilograms with his left hand. He considered that the plaintiff could work as a meter reader and in customer service roles.
87When Associate Professor Boffa re-examined the plaintiff, he essentially came to the same conclusions as noted in his first report. It is worthwhile to note that, at the time when he examined him on this occasion, he noted that the plaintiff had a new complaint of twitching of his left thumb, but otherwise it would appear that he found no significant abnormality in the plaintiff’s left shoulder or elbow. He does not appear to have obtained a history from the plaintiff of neck pain on either occasion that he examined him. He repeated the same opinion relevant to the plaintiff’s residual capacity for suitable employment.
88Mr Kevin Siu, neurosurgeon, examined the plaintiff on 1 February 2021, and provided a report dated 2 February 2021.[77] He provided a supplementary report dated 16 March 2021.[78] Mr Siu appears to have been asked to consider the complaints of the plaintiff’s neck and ulnar nerve injuries. He ignored the plaintiff’s complaints of pain in his left shoulder. He reviewed the relevant radiology and considered that the EMG performed by Dr Rollinson was essentially normal, and the MRI scans of the plaintiff’s neck were also essentially normal. He considered that there was no basis to conclude that the plaintiff had suffered any nerve root entrapment in his neck. On examination, he considered that the plaintiff’s range of movement in his neck was excellent. He found some tenderness in the left trapezius, but did not consider it to be a neurological abnormality.
[77] DCB 125-130
[78] DCB 131-134
89Mr Siu acknowledged that it was not easy to provide a precise diagnosis of the plaintiff’s complaints of neck pain, however, he was not convinced that the plaintiff had developed complex regional pain syndrome. He noted the tremor of the plaintiff’s left hand, which he considered to be functional (not organic), because when the plaintiff was distracted, the tremor was no longer observable. He also noted that there was weakness of left-hand grip, but no obvious wasting of any muscles of the hand. He added that, if the plaintiff did not have the functional element, his rehabilitation would have been better. He could not see any reason why the plaintiff could not return to light duties with some restrictions.
90Mr Siu expressed an interest in being provided with further medical information, which was forwarded to him, and on which he then made a further assessment when he provided a supplementary report. He was not convinced that the plaintiff had suffered an injury to his neck, and he repeated that he considered he was fit to return to light duties. He expressed serious caution in the plaintiff considering the use of a spinal-cord stimulator as appropriate treatment.
Interim conclusions – the left upper limb injury
91The plaintiff submitted that he has suffered a serious permanent impairment of the function of his left upper limb. He submitted that the impairment of the function of his left elbow, shoulder and neck are not to be determined as independent injuries, but as consequences of the primary injury to his left forearm.
92The reason why I have summarised all of the evidence to the degree that I have is in order to address a multitude of issues. The primary issue is the plaintiff’s creditworthiness and reliability. It is the films which potentially demonstrate that he has made the degree of recovery which is more consistent with the defendant’s submissions, so that I should prefer the opinion of Dr Anstee, who considered that the plaintiff had obtained a very good surgical result, and would continue to improve, to the point of being fit to return to suitable employment.
93The medical evidence does not call into question the opinion of Dr Anstee relevant to the surgical result obtained by the plaintiff. As I understand the opinions of the treating medical practitioners ꟷ Mr Low, Dr Weekes, Dr Mehr, and the medicolegal assessors on whom the plaintiff relies ꟷ Dr Rowe, Dr McCallum and Mr Moaveni, none appear to me to question the surgical outcome, but, rather, they have diagnosed a medical condition acquired by the plaintiff which they consider demonstrates the cause of the current impairment of function of his left upper limb.
94It is difficult to know whether the plaintiff developed complex regional pain syndrome (Mr Low), or some symptoms of complex regional pain syndrome (Dr Weekes), or a chronic pain condition (Dr Mehr), or a neuropathic regional pain syndrome (Dr Rowe), or a chronic pain syndrome with central sensitisation (Dr McCallum), or a myofascial pain syndrome (Mr Moaveni).
95Both the plaintiff and the defendant submitted that there are symptoms and signs which are accepted as being consistent with a diagnosis of complex regional pain syndrome. Some of the symptoms which one would expect to see are absent from the plaintiff’s presentation. As far as I can determine from the content of the relevant medical reports, none of the medical practitioners who flirted with that diagnosis actually observed the symptoms on which they based their opinion, but, rather, they based their opinions on the history provided by the plaintiff. I think the odds favour the conclusion that the plaintiff does not have complex regional pain syndrome, and to that end, I think the opinion of Dr McCallum is rather more compelling, because he appears to possess specialist qualifications as a pain physician and specialist anaesthetist, which, I think, put him in a better position to make that diagnosis. Furthermore, I am somewhat fortified in reaching that conclusion, because it is also the opinion of Dr Rowe.
96Of course, the inevitable question is why I prefer Dr McCallum and Dr Rowe over the other medical practitioners. I cannot say that the preference is an easy one to reason out because of the breadth of the diagnoses I am endeavouring to tackle. However, Dr McCallum and Dr Rowe appear to have concentrated their diagnostic efforts by looking at the particular consequences of the ulnar nerve injury, whereas some of the other medical practitioners, for example, Dr Weekes, Dr Mehr and Mr Moaveni, appear to have based their diagnoses on looking at the whole injury complex described by the plaintiff. For example, Dr Mehr obtained a history of pain affecting the whole of the plaintiff’s left upper limb, including his left elbow, left shoulder and pain in his neck. He also referred to the onset of the plaintiff’s psychiatric condition. As I read his opinion, what underwrote the diagnosis of a chronic pain condition, were those physical and psychiatric issues. I think Mr Moaveni approached the expression of his diagnosis in a very similar way and on a very similar basis.
97The plaintiff gave a history, often enough, that he was suffering from pain affecting the whole of his left upper limb, which included his left elbow, and pain extending up to his left shoulder and neck. It is difficult to determine whether, in fact, the traumatic event resulted in additional injuries to the plaintiff’s left elbow, left shoulder and neck, or whether they resulted from the plaintiff’s loss of use of his left arm during the period he was convalescing, and before he was able to more actively use his left arm. Dr Weekes and Dr Mehr appear to have accepted a causal connection based upon the history they obtained from the plaintiff, without adequately reasoning out why that causal connection exists. Dr Rowe and Dr McCallum also appeared to have accepted a causal connection based upon the history they obtained from the plaintiff. They may have been influenced by provision of the reports of Dr Weekes and Dr Mehr.
98Mr Siu specifically examined the plaintiff’s neck. He looked at the same radiology as Dr Weekes had, in particular, MRI scans. Unlike Dr Weekes, Mr Siu did not consider the radiology demonstrated any particular abnormality, to the extent that he described the radiology as essentially normal. Mr Siu also failed to detect any neurological abnormality in his examination of the plaintiff’s neck and left shoulder. The opinions of Dr Weekes and Mr Siu are in stark contrast, leaving me to reason whether the plaintiff’s complaints of pain in his left elbow, shoulder and neck have any causal connection with the occurrence of the injury to his left forearm, or occurred due to the loss of use of his left arm.
99This becomes a matter of some real significance, because if I conclude that the plaintiff’s left elbow, shoulder and neck injuries have no causal connection with the occurrence of the injury to his left forearm, then the plaintiff potentially has different injuries concurrently producing pain and suffering consequences. It is, then, necessary for the plaintiff to distinguish one from the other in the manner referred to in Peak Engineering Pty Ltd & Anor v McKenzie.[79] This potentially also extends to the plaintiff’s complaints of pain in his right upper limb.
[79] [2014] VSCA 67at paragraph [24]. The issue was raised in addresses at T175 ꟷ T178.
100As difficult as this reasoning is, because of the state of the evidence, I have concluded that the plaintiff suffered the injuries to his left forearm, defined through the surgery of Mr Lo, and subsequently deserving the diagnosis of a neuropathic-based condition, as described by Dr McCallum and Dr Rowe, and not encompassing the complaints of pain made by the plaintiff to his left elbow, left shoulder and neck.
101I think the evidence that the plaintiff suffered further injury to his left elbow, left shoulder and neck at the time of the occurrence of his left forearm injury, is so unsatisfactory that I think it is far less likely that he suffered trauma to those areas of his left upper limb and neck at that time. I also think it is far less likely that the pain he experiences in those areas of his left upper limb and neck occurred during the period he was convalescing, and before he was able to more actively use his left arm.
102The plaintiff emphasised that he suffered, and continues to suffer, from a very dramatic injury to his left forearm and hand, which has reduced the function of his left upper limb to such an extent that he is limited to engaging in modest physical activity only. I think that resonates throughout the plaintiff’s affidavits, his oral evidence, and in the histories recorded by the medical practitioners who have treated him, and who have provided medico-legal reports on his behalf. However, the films that were shown demonstrate a very different picture, as do the Facebook entries and the history of deposits in his ANZ banking account.
103The films demonstrate, in a general sense, that the plaintiff is able to go about significant daily activity without any observable difficulty, and certainly no observable difficulty, resulting from the injury to his left forearm. He is able to drive a car without difficulty and, indeed, the films are more than just a snapshot in that respect. They demonstrate that he drives often, and where and when he chooses to go.
104The films demonstrate, again, in a general sense, that he uses his left non-dominant arm as often as is required, given that it is ordinary human experience that individuals who have an arm that is dominant tend to perform most activities with that arm first. That is what the plaintiff did, but when he needed to use his left non-dominant arm, he did so, and appeared to be able to do so in a full, free and unrestricted way. The use to which he put his left upper limb did not demonstrate any difficulty that the plaintiff had in using his left elbow and left shoulder, nor with his neck and, indeed, he was able to move his left upper limb and his neck in a full, free and unrestricted way.
105The film of 26 May 2021 shows the plaintiff engaging in strenuous activity. Collecting the wood and pushing the red car were undertaken by the plaintiff using both of his hands and arms. Collecting the wood showed him grasping pieces of wood in his left hand, carrying bundles of wood in both hands, and at least one bundle in his left arm held against his body. The fact that he was able to place his flat palm against the rear of a car and push it with some effort, demonstrates that he has no appreciable difficulty in applying force through his hand, wrist and forearm. Both of these aspects of the film are entirely against the grain of what he informed his treating medical practitioners about, and also the medico-legal assessors.
106I do not accept that the plaintiff has told the truth about the nature and extent of the difficulties he currently experiences with his left upper limb, shoulder and neck. Nor do I think he has told the truth about the extent that he is engaged in buying and selling cars and selling car parts. I do not accept that his memory is so poor that he could not remember when he purchased cars, and any relevant detail of the circumstances of the purchasing of cars. He was more than just reluctant to answer questions under cross-examination directed to the buying and selling of cars, and selling of car parts. When I reviewed the whole of his evidence on this issue, it occurred to me that he was being deliberately disingenuous. He showed the same tendency when cross-examined about his ANZ banking account, but eventually admitted that he has been selling car parts to a number of wreckers.
107What I have just referred to needs to be compared to what the plaintiff deposed to in his affidavits. I do not accept that his ability to drive a car is as impaired as he said it is in his second affidavit. I do not accept that he has the degree of difficulty in reaching, pushing, pulling and lifting as he says is the case in his second affidavit. I do not accept that he has a tendency to wear gloves. The plaintiff made a particular point during his evidence that he wears two types of gloves, depending on weather conditions, but save for the last films, where it looked as though he was wearing a fingerless glove, he was out and about without any sign of wearing a glove, except for the occasion when he went to see Associate Professor Boffa.
108The absence of a candid account of his capacity deposed to in his affidavits, or given in histories to treating medical practitioners and medico-legal assessors, and in his evidence under affirmation in Court, seriously undermines my confidence that I can accept much of the plaintiff’s evidence. I think his creditworthiness and reliability are very significantly undermined.
109I will now turn to the plaintiff’s neck injury. In both affidavits, the plaintiff deposed to the neck injury resulting in significant pain and suffering consequences. It was an injury which was not cast as being a consequence of the left upper limb injury, but an injury which might meet the statutory threshold, at least for pain and suffering. I do not accept that he suffers from constant headaches and loss of movement to the degree he deposed to in his second affidavit because, again, the films demonstrate someone who is able to move his head and neck in a full, free and unrestricted manner.
110I think the way in which the plaintiff put his case calls for the disentangling referred to in Peak Engineering. It has not been undertaken adequately, and perhaps not at all. The plaintiff’s neck injury is responsible for pain, headaches, loss of movement, and when the plaintiff referred to his pain and suffering consequences and loss of earning capacity consequences, he did not distinguish the extent to which his left upper limb injury contributes to those consequences as opposed to his neck. There is, of course, an alternative conclusion that is open, and that is, that the plaintiff does not experience anywhere near the pain and restriction of movement in his neck that he referred to in his affidavits and oral evidence, nor the histories he gave to his treating medical practitioners and the medico-legal assessors.
111The plaintiff submitted that I should not be influenced at all by the content of the films. I gathered that this was an attempt to suggest that the films are inconsistent with his evidence about the pain and limitation of movement resulting from the injuries to his left upper limb, shoulder and neck. For the reasons I have articulated extensively enough so far, I reject that submission. The second submission made was that the films were not shown to any medical practitioners. In my experience, there are films which are relatively benign, or may potentially show a plaintiff engaged in activity inconsistent with the case being put by the plaintiff, but in the absence of the film being shown to any of the medical practitioners, it is simply not possible to determine whether the films are capable of having that impact or not. However, there are films which very clearly demonstrate activity wholly inconsistent with the case being put by a plaintiff. Films which fall into that category do not need to be shown to medical practitioners, because the contrast between what the medical practitioners understood the plaintiff’s predicament to be and what is shown in the films, is considerable. I think these films fall into the latter category.
112I am left with a plaintiff who has made significant and extensive complaints of pain, incapacity for work and overall disablement, which some of the treating medical practitioners have accepted, but, at the same time, there is a body of evidence which demonstrates that the plaintiff should have recovered significantly, and to the extent of being able to return to suitable employment. I am more inclined to accept the latter evidence.
113The plaintiff also submitted that his estimate of how many cars were shown in his Facebook pages and in the films do not amount to much. However, the plaintiff’s tendency to go to tyre-sales business premises, factory premises and wreckers’ yards, as demonstrated in the films, leave me with a strong suspicion that the Facebook pages and the films are not the whole demonstration of what the plaintiff does in relation to buying and selling cars and selling car parts, nor do the deposits in his ANZ banking account.
114The plaintiff has put himself in a position where it is simply not possible for me to determine the nature and extent of the impairment of the function of his left upper limb, left elbow, his shoulder, or his neck, nor the extent to which he is incapacitated for work of any type. I am not satisfied that the plaintiff has discharged the onus he bears to demonstrate that, whatever impairment of function he has suffered to his left upper limb, his pain and suffering and loss of earning capacity consequences meet the relevant threshold. For reasons I have already explained, I do not accept that his left shoulder and neck are in any way causally related to the injury to his left forearm, and in any event, if I am wrong about that, I do not accept that they are symptomatic and result in any significant impairment of function.
The psychiatric injury – the Plaintiff’s case
115Before I summarise the psychiatric evidence, there are a number of observations which I think are relevant to make at the outset and which I have derived from the reports of the psychiatrists.
116I will firstly summarise the plaintiff’s psychiatric history. He was referred to Dr McQuillan, psychiatrist, by Dr Weekes. She first saw the plaintiff on 7 March 2019, and then on six subsequent occasions. She provided a report dated 20 March 2021.[80] She noted that the plaintiff’s psychiatric condition had arisen in the context of persistent pain and associated physical restrictions resulting from the injury to the plaintiff’s forearm. She also noted that his mood continued to be dysthymic and frustrated, which she considered to be primarily related to his physical restrictions. She added, in that context, that his mood condition had arisen in the context of physical injuries, and until his physical injuries stabilised or resolved, it was likely that he would continue to have residual mood symptoms. Her diagnosis was that the plaintiff was suffering from an adjustment disorder with depressed and anxious mood. She also noted that his psychiatric condition had a significant impact on his social, domestic and recreational activities. He was often withdrawn from family due to difficulties with engagement, persistent worries and lowered frustration tolerance, which led to annoyance. He rarely saw friends. He had a reduced appetite, which impacted upon domestic and social functions, and he was no longer active with his sons, or in his pastime of mechanical tinkering.
[80] PCB 108-111
117In addition to the treatment provided by Dr McQuillan, the plaintiff had been referred to Mr John Jacoopi, psychologist, later to Ms Kate Milne, psychologist, and later to Ms Effie Chen, psychologist.[81]
[81] PCB 11
118The plaintiff was then referred to Dr Sagarika De Fonseka, psychiatrist, by Dr Gerges, general practitioner. She first saw the plaintiff on 9 December 2021. She provided a number of courtesy letters and reports, of which four were tendered into evidence ꟷ 24 February 2022,[82] 4 March 2022,[83] 22 April 2022[84] and 1 August 2022.[85] The last is a report encompassing all of the treatment she provided the plaintiff referred to in the earlier reports.
[82] PCB 126
[83] PCB 127-128
[84] PCB 133-134
[85] PCB 249-252
119Dr De Fonseka noted that the plaintiff had endured severe pain in his left forearm since the occurrence of the incident, and had suffered a significant reduction in the function of his left upper limb as a result. She noted that he developed low mood, flashbacks, significant anxiety, significant panic attacks and nightmares. She noted that he had been admitted to the Post-Traumatic Stress Disorder Unit of the Austin Hospital in September 2021, and during that hospital stay he was prescribed Sertraline. She prescribed him Topiramate and Moclobemide on top of strong pain medication. It would appear, at that time, she considered his symptoms were consistent with Post-Traumatic Stress Disorder and a major depressive disorder.
120When Dr De Fonseka saw the plaintiff on 17 February 2022, she noted that his mental state had deteriorated. She recommended that the plaintiff be admitted to the South Eastern Private Hospital under her care to wean the plaintiff off Moclobemide and for him to have rTMS[86] or ECT treatment, and a new antidepressant. She changed his medication to Zopiclone, to treat the plaintiff’s insomnia, and Quetiapine, to treat the plaintiff’s anxiety. She noted that the plaintiff’s mood deteriorated to the extent that police attended his home in April 2022. She considered that he was a heightened suicide risk, which led to his admission through the Emergency Department of a hospital, and then the South Eastern Hospital, under her care, from 20 May 2022 to 17 June 2022. He had thirty sessions of rTMS while an inpatient, and a review of his medication regime.
[86] The evidence did not define rTMS. I understand it to be the placement of an electromagnetic coil against the scalp or forehead with the delivery of a painless magnetic pulse to stimulate nerve cells in the brain which involve mood control and depression.
121It would appear that, following the plaintiff’s discharge from the hospital, he continued seeing Dr De Fonseka. He last saw her for treatment on 21 July 2022. She considered that he remained in a stable mental state post discharge from the hospital. However, she noted that he had continued to be troubled by multiple stressors, one of which was pain in his forearm and neck, and the financial burden of being unemployed. Her ultimate diagnosis was a major depressive disorder and Post-Traumatic Stress Disorder. She noted that he had ongoing chronic pain in his left upper limb. She considered that he was in remission, which she hoped would be sustained. She considered that he would suffer a deterioration in his psychiatric state if he were to return to his pre-injury work. She recommended that the plaintiff continue using Moclobemide, Topiramate, Zopiclone and Lyrica.
122Dr Nicholas Ingram, consultant psychiatrist, examined the plaintiff on 8 December 2020 and provided a report of the same date,[87] and he reviewed the plaintiff on 5 May 2022 and provided a report of the same date.[88] I will concentrate on his second report. It contains an adoption of the history, examination and opinion in his first report, and is an up-to-date opinion based upon the provision of further material. He noted that the plaintiff’s main problem was chronic pain, for which he understood there was no clear physical explanation, which meant that the plaintiff had a chronic pain disorder. He noted that the plaintiff complained of significant symptoms of depression. He diagnosed that the plaintiff was suffering from a major depressive disorder, which he considered was secondary to chronic pain, possibly a chronic pain disorder, and Post-Traumatic Stress Disorder symptoms, which he considered had largely resolved.
[87] PCB 140-144
[88] PCB 145-150
123Dr Ingram considered that the plaintiff’s prognosis, relevant to his depression, was largely dependent upon a prognosis for the pain he is experiencing. He noted that the plaintiff’s depression was probably increasing his perception of pain, and that if there was an improvement in his depression, that would help improve his pain. He considered that the plaintiff was unfit for his pre-injury work, or any other work, because of his depression and its impact upon his motivation, concentration and energy levels.
The psychiatric injury – the Defendant’s evidence
124Dr Timothy Entwisle, consultant psychiatrist, examined the plaintiff on 19 June 2017, and provided a report dated 26 June 2018.[89] Dr Richard Prytula, consultant psychiatrist/psychotherapist, examined the plaintiff on 27 June 2018, and provided a report of the same date.[90] The reports are stale and overtaken by other events. I think it is sufficient to say that both obtained a history of the occurrence of the incident and the plaintiff’s complaints of pain affecting his left upper limb. They both considered that the plaintiff was suffering from a psychiatric disorder. Dr Entwisle considered that the plaintiff was then suffering from an adjustment disorder with depressed and anxious mood, secondary to the pain and incapacity resulting from the injury to his left upper limb. He considered the plaintiff had a capacity to undertake rehabilitation with a view to returning to work. Dr Prytula diagnosed the same psychiatric disorder, and also observed that it was secondary to the pain and incapacity resulting from the injury to his left upper limb; however, he obtained a history that the plaintiff’s psychiatric state was deteriorating and that he had episodes of suicidal ideation, which led him to consider that the plaintiff’s psychiatric state was not stable and that he required treatment by a psychiatrist and a psychologist.
[89] DCB 44-49. I assume the date of "2018" is a mistake and was meant to be 2017.
[90] DCB 50-58
125Dr Rasanjali Rathnayake, consultant psychiatrist, examined the plaintiff on 2 October 2018 and provided a report of the same date.[91] He reviewed the plaintiff on 21 July 2020 and provided a report of the same date.[92] He reviewed the plaintiff on 12 February 2021 and provided a report of the same date,[93] and he last reviewed the plaintiff on 15 July 2022, and provided a report of the same date.[94] I will concentrate on Dr Rathnayake’s last report. It contains an adoption of the history, examination and opinion in his first report, and is an up-to-date opinion based upon the provision of further material.
[91] DCB 88-95
[92] DCB 96-13
[93] DCB 104-114
[94] DCB 115-124
126Before turning to the content of his last report, there are two matters which require elucidation because they are referred to in Dr Rathnayake’s last report. The first is the history he obtained of the plaintiff’s prior psychiatric history dating back to 2012 and 2013. Dr Rathnayake was provided with documents which demonstrated that, on 30 December 2012, the plaintiff was admitted to a hospital with visual hallucinations, delusions, anxiety and panic attacks. Dr Rathnayake referred to the plaintiff becoming psychotic. He was taken to hospital by police. This event occurred because of an argument with his sister. His symptoms lasted only a short period of time. He was later treated for depression and anxiety in 2013.
127The next is the plaintiff’s concern about his family in Afghanistan. The plaintiff said that his father was taken by the Taliban and has not been seen since. He also lost a cousin because of the Taliban in about 2000. He still has family in Afghanistan, comprising his mother and brothers, who he believes are in danger. He wants his family to migrate to Australia and is pursuing an application for them to migrate.
128Under cross-examination, the plaintiff was taken to a note of his general practitioner, dated 30 August 2021, who noted that it was because of the plaintiff’s concerns for his family in Afghanistan that he was hospitalised at the Austin Hospital suffering from Post-Traumatic Stress Disorder. Dr De Fonseka referred to the plaintiff’s inpatient treatment at the Austin Hospital in her report dated 1 August 2022. She noted that it was during that inpatient treatment he was prescribed Sertraline. The plaintiff then gave evidence explaining that his subsequent hospital admission at the South Eastern Hospital was connected to the reason why he was admitted to the Austin Hospital:
Q.“I don’t doubt that, and as I said, I’m sorry to have to cover this troubling ground. So, you were hospitalised in the Austin, and then more recently you’ve been hospitalised at South Eastern Private Hospital?---
A.Yeah, initially I was at Austin, but Austin improved my situation, but when I left Austin I again went back into stress and then they took me to the South East.
Q. Yes?---
A.(Direct) Was TMS treatment I can remember. TMS treatment there. (Through Interpreter) And I was under TMS treatment.
Q.Well, I don’t want to cover this in any undue detail, but my reference is to court book - the plaintiff’s court book 20, and plaintiff’s court book 131. And what I’m suggesting to you, Mr Ali, is that again when you were hospitalised this year that issues about your family brought about a deterioration in your psychiatric state?
A.Yes, obviously that’s my family, I do worry about my family and it’s obvious.”[95]
[95] T29
129The reference to page 20 of the Plaintiff’s Court book is where the plaintiff described the very difficult circumstances which resulted in his admission to the Austin Hospital:
“On or about 25 August 2021 I ended up in Hospital. Earlier that evening my wife had encouraged me to go for a walk as I was very irritable. Whilst walking I could not shake the negative thoughts. I had recently been hearing about the atrocities in Afghanistan and I felt unable to cope. I started to feel like everything was just too much. I kept comparing myself to other people and I started to think that this life is not worth living. I started having thoughts about just stepping in front of a car and finishing things. I then started having a panic attack and feeling pain in my chest. I called an ambulance and was taken to the Dandenong Hospital. Later that night I was transferred to the Monash Hospital.
In or around September 2021 I was admitted to the Austin Hospital PTSD Unit. Initially my stay was supposed to be for two weeks, but my treating practitioners sought approval for me to stay for a further two weeks.”[96]
[96]PCB 20
130In subsequent paragraphs in the same affidavit, he then described the referral to Dr De Fonseka. Dr Fonseka followed up on the diagnosis of Post-Traumatic Stress Disorder by referring the plaintiff for, what she described as, neuro feedback sessions, which were directly related to treatment of the plaintiff’s Post-Traumatic Stress Disorder.[97]
[97] PCB 130
131Dr Rathnayake diagnosed the plaintiff with an adjustment disorder with mixed anxiety and depressed mood. He considered that the plaintiff’s Post-Traumatic Stress Disorder is currently in remission. He noted that the plaintiff’s concerns for his family contribute to his presentation.
The psychiatric injury ꟷ interim conclusions
132The psychiatrists acknowledge the importance of the plaintiff’s complaints of persisting pain in his left upper limb, the consequences to him of incapacity for work, and interference with social, domestic and recreational pursuits in the causation of the psychiatric injury, and most importantly, the seriousness of the psychiatric injury. I think Dr Ingram put it more directly than the other psychiatrists when he said that the plaintiff’s major depression is secondary to chronic pain complained of by the plaintiff, and that the plaintiff’s prognosis relevant to his depression was largely dependent upon a prognosis for the pain he is experiencing. I think that is consistent with what all of the other psychiatrists accept.
133I accept that the plaintiff suffered a psychiatric injury secondary to the injury to his left upper limb, but not to the degree described by Dr De Fonseka, Dr Ingram and Dr Rathnayake. They accepted that the plaintiff was very significantly disabled by the injury to his left upper limb. The premise upon which they operated is seriously inconsistent with the conclusions I have reached relevant to the nature and extent of the plaintiff’s left upper limb injury, and whether the injuries to his elbow, shoulder and neck are causally related to the occurrence of the incident and his left upper limb injury. That must go to a serious undermining and reliability of their opinions on their diagnoses, and certainly their prognoses.
134There is very little in the histories taken by the psychiatrists concerning the plaintiff’s prior psychiatric history as recorded by Dr Rathnayake. It would appear that he was not convinced that it was so important in providing a diagnosis and prognosis relevant to the plaintiff’s psychiatric injury. However, the absence of that history has meant that none of the other psychiatrists have been able to determine for themselves whether it is of importance or not. Despite my misgivings that this history may be of importance, I am left with the opinion of Dr Rathnayake, who is the only psychiatrist who obtained a relatively-full history of the plaintiff’s prior psychiatric condition, and the only psychiatrist who made any serious comment on it. I think this is very unsatisfactory. However, it needs to be dealt with in some way and, reluctantly, I will deal with it in the way in which Dr Rathnayake dealt with it; by considering it was relevant, but not to the extent that it interfered with his ability to express an opinion on diagnosis and prognosis of the psychiatric injury relevant to the occurrence of the incident.
135What is of very considerable importance is why the plaintiff was admitted to the Austin Hospital with a diagnosis of Post-Traumatic Stress Disorder. According to his affidavit, and what he said under cross-examination, there appears to be a clear and strong link between his concerns for his family and the deterioration in his psychiatric state which led to that admission, and the later admission organised by Dr De Fonseka. Dr De Fonseka appears to have understood that the plaintiff was admitted to the Austin Hospital, but on the face of her relevant report, it does not appear that she knew that he had been admitted because of concerns for his family. The best I can do in making sense of all of this medical evidence, is that it would appear there was a causal connection between the downturn in the plaintiff’s psychiatric state due to his concerns for his family, followed by a diagnosis of Post-Traumatic Stress Disorder resulting in the admission to the Austin Hospital, and then a further deterioration for the same reasons, leading to the admission to the South Eastern Hospital, and Dr De Fonseka’s treatment of the plaintiff. In any event, the most recent psychiatric diagnosis is that the plaintiff’s Post-Traumatic Stress Disorder is in remission, and he is likely suffering from an adjustment disorder with mixed anxiety and depressed mood.
136I accept that the plaintiff suffered a depressive disorder. I do not accept that the opinions of the psychiatrists who reached that diagnosis are reliable. My reasoning is that the plaintiff’s prior psychiatric condition is relevant, although I have dealt with it in the best way I can by preferring the approach taken by Dr Rathnayake. They did not know of the extent to which the plaintiff is active as demonstrated in the films, on Facebook, and through his banking records. As I have reasoned earlier, the films seriously undermine the creditworthiness and reliability of the plaintiff. The opinions of the psychiatrists, and here again I referred to the way in which it was put by Dr Ingram, is anchored to the nature, degree and seriousness of the plaintiff’s injury to his left upper limb, and also encompassing his left elbow, shoulder and neck. Lastly, and I think of real significance, is the causation of the Post-Traumatic Stress Disorder. It appears to be unrelated to the plaintiff’s left upper limb injury.
137Overall, the plaintiff’s evidence relevant to the onset of the psychiatric injury is very unsatisfactory. Not only is there a very serious question about his creditworthiness and reliability, but the histories on which the psychiatrists worked is flawed to the extent I have already referred to, and has left me in a position where I am very uncomfortable in accepting much of what the plaintiff says. Ultimately, I am not satisfied that the plaintiff has discharged the onus he bears to demonstrate that whatever impairment of function he has suffered through the psychiatric injury, his pain and suffering and loss of earning capacity consequences meet the relevant threshold.
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