Armaghanian v John Fairfax and Sons Pty Ltd

[1999] NSWSC 425

CITATION:	ARMAGHANIAN v JOHN FAIRFAX & SONS PTY LTD [1999] NSWSC 425
CURRENT JURISDICTION:	Supreme Court
FILE NUMBER(S):	11675 of 1989
HEARING DATE(S):	18-19 November 1998
JUDGMENT DATE:	7 May 1999
PARTIES :	Plaintiff: Ray Armaghanian Defendant: John Fairfax & Sons Limited
JUDGMENT OF:	Hulme J at 1

COUNSEL :	Plaintiff: Mr D Letcher QC with him Mr R Sweet Defendant: Mr B Hughes
SOLICITORS:	Plaintiff: Messrs Turner Freeman Defendant: Messrs AO Ellison & Co
CATCHWORDS:	Damages - personal injury - earning capacity - no question of principle
DECISION:	Damages findings - parties to calculate amount.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

NO: 11675 of 1989

Friday, 7 May 1999

HULME J

Hrair Ray ARMAGHANIAN v JOHN FAIRFAX & SONS LIMITED

JUDGMENT

1 HIS HONOUR: In these proceedings the Plaintiff claimed damages from his former employer alleging that he suffered injury in the course of his employment in consequence of negligence on the part of the Defendant. Bruce J found in favour of the Plaintiff and, on 2 April 1996, directed the entry of Judgment. In large part His Honour’s reasons were delivered on 5 March 1996 and in those he found the Plaintiff entitled to damages under most of the heads commonly used in actions such as this.
2 The Defendant appealed from His Honour’s decision and on 27 August 1996 the Court of Appeal:-
“Set aside so much of the Judgment for damages of Bruce J of 2 April 1996 as awarded the following damages:

Damages for past economic loss since the Plaintiff ceased employment: $99,044.00 and interest thereon;
(a) Damages for future economic loss: $168,493.00;
(b) Remit the matter to the Common Law Division for a new trial limited to the assessment of (damages under those two heads).”

3 It is those two issues with which these Reasons are concerned. It was common ground between the parties that a number of findings of Bruce J were relevant to the task before me. It is convenient to record those parts of Bruce J’s Reasons as do or may fall within this category:-
“… the Plaintiff is entitled to succeed against the defendant and there should be no deduction for any contributory negligence.

The Plaintiff resigned on the grounds of ill-health on 11 May 1989. He has not worked since. The effect of his resignation on this basis was to obtain a larger pay out from his employer’s superannuation fund.
Over the years the Plaintiff has had various medical procedures carried out on the basis that he has sustained an organic injury to his back…
On 1 July 1993 the Plaintiff was awarded $70.00 per week compensation by Commissioner Hopkins in the Compensation Court on the basis of his partial incapacity.
… There does not appear to be any evidence of any significant organic injury to the Plaintiff’s back which could account for the symptoms which he exhibits… No significant organic caused has been found in spite of there having been a number of CT and MRI scans carried out on the Plaintiff. ….
In my view the Plaintiff has not established that he is totally incapacitated from work as a result of the injury which he sustained in the course of his employment. A commissioner in the Compensation Court determined that he suffered a partial incapacity. But ignoring that determination there is simply no material before me upon which such a conclusion could properly be reached.
The medical evidence overwhelmingly establishes that the Plaintiff has been capable of carrying out work during the greater part of the time but that for some reason he has taken the view that he is unable to work at all. He indicated that he sought employment up until 1992 but thereafter has not done so… I am of the view that the Plaintiff had some earning capacity which he elected not to seek to use after 1992…
The Plaintiff has no significant organic injuries. He has, he says, some pain and also occasional episodes of severe pain which requires bed rest. These episodes are at infrequent intervals. In my view the pain will resolve with the passage of time…
(b) Loss of Earnings Since Employment Ceased
In my view the Plaintiff has not been totally incapacitated from work. He sustained an injury and exhibits behaviour which is totally out of proportion to the injury which he sustained. There is no evidence, apart from his evidence, that he is in fact incapacitated to the extent he says he is. I am not satisfied on an assessment of the Plaintiff in giving his evidence that he is not capable of performing a significant amount of work for virtually all of the time.
The Plaintiff is not and will not be capable of performing his pre-accident work but nevertheless he is capable of working in some form of remunerative employment. There is no evidence of his likely earnings in such employment but doing the best I can I estimate that since his employment ceased he has had an earning capacity of in the order of $250.00 per week .
I am prepared to accept Mr Bowes as the comparable employee to the Plaintiff in assessing the Plaintiff’s loss as Mr Bowes’ income most closely approximated the Plaintiff’s income during the year in respect of which comparable figures have been provided…
6. Future Loss of Earnings
In my view the Plaintiff has lost the difference between the sum of $626.00 which Mr Bowes’ net average weekly earnings at the time of trial and the sum of $250.00 which I have assessed as the Plaintiff’s residual earning capacity namely, $376.00 per week .”

4 It has been convenient to include in the above extracts from Bruce J’s Reasons the passages I have underlined but having done so I record that they form an exception to my description of the passage quoted from His Honour’s Reasons. The Court of Appeal found that there was no evidence to justify His Honour’s acceptance of the sum of $250.00 per week and that he had erred also in not providing reasons has to how he arrived at that figure.
5 The only witnesses called before me were the Plaintiff and a Mr Damp, the Human Resources Manager of the Defendant. In addition there were tendered a number of medical reports, not all of which were before Bruce J, documents bearing on the issue of comparable earnings and a folder of letters to and from organisations to which the Plaintiff has applied for employment. There was a chronology, the accuracy of which was deposed to by the Plaintiff and a few other documents. The medical reports were voluminous. Apart from reports from four psychiatrists, there were reports from some ten other medical practitioners. None of these was called and accordingly, my decisions as to what parts of this evidence to accept must be based upon my assessment of its content, perhaps the standing of its author, and my assessment of the Plaintiff.
6 There seems no dispute that the Plaintiff, who prior to his accident, had been employed by the Defendant for some 9 years, displayed no symptoms of back problems or unreliability in his work attendance prior to the date of the accident with which these proceedings are concerned viz. 13 April 1987. Dr Sarian who had known the Plaintiff since 1975 indicated that the Plaintiff had never suffered from back pain prior to his accident on 13 April 1987. However the evidence bearing on the extent of the Plaintiff’s incapacity subsequent to the accident is pregnant with controversy. The Plaintiff’s case is that he is totally disabled. The tenure of his evidence is that he has pain virtually every day, that this is commonly disabling and the frequency and extent of it is such that he has no hope of working with any degree of reliability. The Plaintiff’s evidence was that he would not be able to sit at a bench or operate a computer terminal for long periods and half an hour’s activity of this nature would be productive of pain. He said that he experiences aching pain in his back if he stands for 15 minutes or so. He can drive short distances for 15 or 25 minutes but lifting anything weighing more than 2½ kgs is productive of pain. He is unable to bend at all.
7 The pain, according to the Plaintiff, falls into three categories. Stage 1, as he described it, is aching pain in his back, hip, buttock, thigh or leg. It is unusual for this not to be present every day. Stage 2 pain is experienced between 2 and 4 times a month for 3-4 days at a time. It is intermittent during these 3-4 days but when present causes the Plaintiff difficulty with walking or standing. It is exacerbated by spinal movements involved in sitting or standing or by not resting. Digesics tend to alleviate this pain. Before Bruce J the Plaintiff had said that the stage 2 pain was presently nearly every day. Before me he said that was not an accurate picture.
8 The worst pain - that described as stage 3 - occurs 2 or 3 times a year. It commences with agonising pain. The Plaintiff is bed ridden from 8-11 days at a time and during the first 2-3 days of this he is virtually unable to move at all. Initially he said all he could do during this period was gaze at the ceiling. Later he said he was unable to life his legs even 1 or 2 degrees during this period and to urinate, he rolled over and used a jug brought by his wife. He has no bowel movement during this initial period. The first of these occasions was in September 1988 when the Plaintiff went to hospital overnight but he has not been hospitalised on this account since. He has had no specialist medical treatment since 1993.
9 The Plaintiff said that the pain from which he suffers and has suffered has led to anxiety and depression which is affecting his whole immune system. He now suffers from spasms in his shoulders, arm and wrist and shortness of breath. He feels sad and that he has no future. His concentration is reduced. In cross examination the Plaintiff accepted that on two occasions he had been prescribed Sinequam. He said that he took this for about 10 days on each occasion but the medication made no difference.
10 Asked who washed up the dishes in the morning, the Plaintiff replied “Sometimes I try to help my wife and I do some sort of washing, sir”. Later he said “My wife does everything at home, sir, but I do want to help sometimes. I do small things, sir. Picking up a few clothes from the lines, or washing or rinsing a few dishes”. Later I asked “What stopped you doing all the washing up?” and his reply was:-
“The pain when I do, even when I do the washing up I know I will have pain but I feel guilty. I try to do something to help my wife but when I do it continuously I have increased pain.”
11 The Plaintiff did acknowledge that he picks his children up from school on occasions and visits the TAB between 2 and 4 times a week, spending between 1 minute and 2 hours there. I was left uncertain whether attendance at the TAB was ultimately of monetary benefit to the Plaintiff. He said that he went there because it helped his days go more quickly not because he enjoyed himself.
12 A major inspiration for the issue as to the extent of the Plaintiff’s incapacity and its cause lies in the extent of the Plaintiff’s complaints and apparent inconsistencies in his actions and between some of his complaints and medical opinion. The fact of such inconsistencies could not and was not challenged by counsel appearing for the Plaintiff, although he took issue with the suggestion that they might be so great that no weight whatsoever could be placed on what the Plaintiff said as to his symptoms. The nature of the problem is presented starkly in the report of Dr Morris whose report contains the following:-
“This man gives a history of onset of low back pain 2 years ago. He maintains it has never disappeared since then and he does have some minor degenerative bulging in the lower 2 lumbar discs which might account for the pain. However I find quite a number of unsatisfactory aspects to today’s presentation. The first is the claim that the pain has not settled since which is intrinsically improbable given the rather minor nature of the changes on x-ray.

The second point is that the localisation of pain today is not in the lumbar region at all but in the sacrum and one can only describe his responses to palpation of this are as exaggerated. It’s inconceivable that he could have pain in the sacrum due to a problem in his lumber discs, and certainly I can’t accept that he has any degree of tenderness despite his claims to the contrary.
Furthermore, I note his refusal to flex or extend the lumbar spine despite the fact that he subsequently demonstrated that he is able to flex the spine.”

13 A feature of the Plaintiff’s presentation to doctors was his refusal to move his back and legs upon the stated ground that to do so was to risk severe or extremes of pain. Yet he was observed to participate in movements apparently inconsistent with this attitude and suggested fear. It is fair to say that I cannot recall a case where inconsistency of action has been so remarked upon in medical reports.
14 I turn to the medical reports in more detail. It is not necessary that I refer to all that they contain. I have read and re-read them and, because of the concerns they create, discussed most at considerable length with counsel for the Plaintiff.
15 It is not in dispute that some radiological and the like examinations of the Plaintiff’s back made subsequent to the accident revealed bulging of the discs as L4/5 and L5/S1. On the other hand a report of Dr Larbalestier of 8 September 1992 recorded that:-
“The posterior convexity of this (L4/5) disc is considered to be anatomical; the disc is not protruded and there are NO other noteworthy features” and there are NO pathological features at this level in the (lumbo-sacral) disc, intra spinal content or facet joints” and “NO fracture seen or joint displacement either in the cervical or lumbar areas nor is there any overt disc protrusion.”
16 In his report of 1 October 1993, Dr Evans agreed with Dr Larbalestier’s report. In a report of 20 December 1993, Dr Selby-Brown carries out an extensive review of the radiological examination of the Plaintiff. Other doctors also refer to the topic. In light of the conclusions reached by the various doctors to whom I shall refer, it is not necessary that I resolve or reconcile the evidence as to the radiological findings.
17 Dr Sarian
Dr Sarian was the Plaintiff’s general practitioner. In a report of November 1990 to the Plaintiff’s solicitors, he assessed the Plaintiff as unfit for his pre-accident position but fit for light duties not exceeding 4 hours per day. In May 1992, he opined that the Plaintiff had some functional overlay but said he had certified the Plaintiff fit for light duties. In this and the preceding report, Dr Sarian assessed the Plaintiff’s loss of total body function at 15 to 20%. In November 1993 he recorded that because the Plaintiff was petrified that bending his spine would lead to “locking it”, proper examination was impossible. He went on to say that in his view the Plaintiff’s incapacity was a direct result of his injury. In December 1994 he recorded that the Plaintiff’s “symptoms have remarkably been constant; namely low back pain with limitations of spinal movements with radiation of pain and paraesthesia down his left lower limb”, and that whenever the Plaintiff attended the surgery he walked with a left sided limp. In this and the preceding report, Dr Sarian assessed the Plaintiff’s loss of spinal function at 50%. In April 1998 he recorded that he had known the patient since July 1975 and the latter had never suffered from back pain or depression until his accident in April 1987. Dr Sarian also recorded that extension and flexion were reduced by 85% and lateral rotation by 50% and that he “could not do other examination or movements because (the Plaintiff) was worried about aggravation of the pain”.
18 Dr Maniam
In a report to the Plaintiff’s solicitors of December 1990, Dr Maniam recorded that at his last examination the Plaintiff experienced difficulty in sitting and straightening up and assuming the supine position and movement limitation continued to be restricted at around 50% of normal. Dr Maniam referred to a rehabilitation program wherein the Plaintiff undertook vocational guidance and psychiatric pain management. In his report of February 1995, Dr Maniam recorded that the Plaintiff was reluctant to move and stated that movements induced pain. “However, he was able to sit and straighten up with minimal discomfort and was also able to supine with minimal difficulty… This man’s painful symptoms are excessive for the condition that has been diagnosed… I feel his preconception of these symptoms are compacted by his anxiety depression… I will agree that he has become de-conditioned and the chances of him re-entering the work force is minimal.” Dr Maniam quantified the Plaintiff’s permanent percentage loss of use of the back at “17/5%” - I infer 17½%.
19 Dr Morris
In a report of 16 October 1989 to the Defendant’s solicitors, Dr Morris expressed the view that the Plaintiff was fully fit for work subject to the proviso that he should avoid stooping, bending or heavy lifting. He said that any limitation as to the Plaintiff’s lifting ability was not due to anything that happened at work but the result of a mild idiopathic disc degeneration involving the 4/5 and 5/1 discs. Any future pain would be a consequence of underlying degenerative condition in the spine. Some other comments by Dr Morris are set out above.
20 Dr Rushworth
In a report to the Defendant’s solicitors of 6 September 1989 Dr Rushworth, a consultant neuro-surgeon, recorded that the Plaintiff’s symptoms were difficult to analyse, that when the Plaintiff removed a corset he was “literally unable to move his back in any direction” and appeared to be very tender over the lumbo-sacral spine. He referred to an MRI and CT scan showing degeneration of the L4/5 disc. His opinion was that the Plaintiff’s symptoms had persisted far longer than one would expect if they had been due to a soft tissue or ligamentous injury and he did not believe that the symptoms were related to an organic spinal disorder. In a report of 31 July 1991 he said his opinion was unchanged. His report of 22 September 1992 was to similar effect, recording that the Plaintiff “refused to bend his spine at all”.
21 A report of 27 October 1993 records that Dr Rushworth re-examined the Plaintiff on the previous day. He refers to a report of x-rays carried out in September 1992 saying:-
“essentially it does not show any abnormality that would explain his symptoms.”
22 Dr Rushworth said the Plaintiff’s lumbar spine was held completely rigid and -
“this examination adds nothing to what has been previously described. No organic basis for his symptoms has ever been established. They are not due to a disc lesion or disc lesions and are totally out of proportion to the relatively minor degenerative changes which are noted radiologically…

… His present rate of progress suggests that (his symptoms) will go on indefinitely. He is totally unfit for any form of heavy work and probably unemployable in any capacity.”

23 In a report of 17 January 1995, Dr Rushworth recorded that the Plaintiff was unable or unwilling to bend his lower back at all. He said:-
“this patient must be categorised as having chronic back pain of undetermined origin. I remain unconvinced that the disc abnormality reported in previous x-rays can be considered to be responsible for these symptoms. However, insofar as his symptoms and their onset follow the incident at work referred to above, the incident must be considered as being responsible…”

“The present position is that he has continuing chronic incapacitating low back pain and occasional left leg pain. As these symptoms have been present more or less unchanged for nearly 8 years the indications are that they will continue indefinitely.”

24 Dr Rushworth assessed the Plaintiff’s permanent percentage loss of efficient use of his lower back at 5-10%.
25 Dr Grant
In a report of 15 December 1993 to the Plaintiff’s solicitors, Dr Grant said:-
“Clinical examination (in June of this year) did not define any localising neurological abnormalities, he did however tend to avoid movements of his spine particularly such as flexion.

The x-ray and CT scans showed evidence of changes of the L4/5 and L5/S1 levels.
In view of this I think the overall picture does indicate someone who has episodes of low back pain but I would feel there is a very marked over reaction to this… and I doubt whether he would return to any work that required bending or lifting.”

26 Dr Selby-Brown
In a report of 20 December 1993 to the Plaintiff’s Solicitors, Dr Selby-Brown recorded that the Plaintiff was observed to walk with a “somewhat variable limp” and had a “rather varying degree of freedom” in his movements. The report continues:-
“(The Plaintiff) states that he cannot forward flex his lumbar spine and was not prepared to do so when I formally examined him standing up but he was noted to be able to sit comfortably in a chair whilst I took his history and to sit comfortably on the edge of my examination couch during part of my physical examination of him. … Lumbar spinal motion was noted to be somewhat restricted but this degree of restriction was associated with a moderate degree of voluntary muscle guarding. Straight leg raising was also variable restricted on repeated assessment and was also associated with a moderate degree of voluntary muscle guarding.”
27 Dr Selby-Brown’s opinion was that:-
“(the Plaintiff) may have sustained a disc injury” and “it is possible that this pathology (i.e. some bulging of the L4-5 and L5-S1 discs) is the underlying basis for his … present complaints. (There is) a considerable degree of emotional reaction. It is possible that he does have some restriction on … activities requiring heavy or moderately heavy lifting, handling or bending… and for activities likely to cause jerking, jolting or jarring of his back… as his symptoms have now persisted for 6½ years it would seem unrealistic to consider that they are ever going to resolve. Assuming that the basis for his ongoing symptoms is the disc bulging… and that this is causing his ongoing symptoms and that these symptoms are going to remain permanently unchanged, I would assess Mr Armaghanian as having a permanent 10% impairment of his back.”
28 Dr Selby-Brown said that, again on certain assumptions, there was a loss of use of the lower limbs.
29 In reports of 19 December 1994, 3 December 1996 and 24 March 1998 following further examination, he said in effect that the Plaintiff’s condition remain unchanged. In his report of December 1996 Dr Selby-Brown said:-
“Mr Armaghanian walked into and out of the consultation room without any limp but he was very cautious in any movements involving his back… He was again noted to sit freely” and would not allow any forward flexion of his lumbar spine and” other spinal movements were restricted “with a moderate degree of voluntary muscle guarding.”
30 Dr Selby-Brown was not able to elicit any abnormal neurological findings in either lower limb, although there was some qualification of what he had said earlier concerning these members. A later report of March 1998 is to somewhat similar effect.
31 Dr Bodel
In a report of 27 September 1989 to the Defendant’s solicitors, Dr Bodel recorded that “the patient has actively resisted range of forward flexion” but was “able to walk on his heels and toes without difficulty, climbs on a couch also without difficulty and is seen to sit erect with his hips flexed and knees extended.” Dr Bodel said:-
“I have seen a CT scan of the lumbo-sacral spine which reports some minor bulging of the posterior aspect of the L4/5 disc. I note this appearance on the x-ray films and agree with the report which indicates that it is of no clinical significance. An MRI scan on 15 February 1989 also reports some minor bulging of L4/5 posteriorly and early degenerative change at this level.
32 Dr Bodel’s opinion included that:-
On clinical testing today there is evidence that the patient is attempting to manufacture abnormal clinical signs which do not exist. He may well have mechanical back ache arising from a degenerative L4/5 disc, but there is no objective evidence of major disc rupture… It would however be unwise for the patient to return to heavy manual labour… as this type of lesion would be vulnerable to recurrent problems. The patient is however fit for light work that does not require frequent bending or lifting.

Historically and on clinical testing today, it does not appear that this patient has sustained a major disc rupture. He does, however, have a degenerate L4/5 disc which may well have been rendered symptomatic by the lifting incident at work on 13 April 1987. I believe however that this aggravation would have resolved within 6 months, although continued work with bending and lifting may have further aggravated him… The patient’s overall prognosis from an orthopaedic point of view is reasonable, although his presentation today would lead one to believe that he is not returning to the work force in the foreseeable future.”

33 In a report of 26 August 1991, Dr Bodel concluded:-
“He has some genuine disability at a degenerative L4/5 disc, … the patient’s complaints of discomfort are again in excess of that which can be supported by the objective finding, although I do believe that he does have some genuine disability…

The patient in my view is still fit now for lighter duty work as long as it avoided frequent bending, twisting or heavy lifting. I can find no objective cause for the degree of his complaints, although I do accept some minor mechanical back ache associated with degenerative change at L4/5…
The patient has a somewhat guarded prognosis because of degenerative change at L4/5, but he is capable of a great deal more than he will admit to, from the assessment that I have made today.”

34 In a report of 6 December 1996, Dr Bodel expressed the opinion, inter alia, that:-
“This patient suffered an injury to his back at work on 13.4.1987. At most he has suffered a minor disc injury that the L4/5 level.

The patient’s level of complaint at this stage, almost 10 years after the injury, is medically inconsistent and unsupported by objective findings on clinical testing…
The patient probably is not fit for unrestricted bending, twisting or lifting and probably is not fit for his pre-injury work but he is fit for a wide range of alternative duties and has been so for many years.
The patient presents as a very anxious individual and he has now been out of work for a very long period of time and it appears unlikely that he will return to paid employment.
His continuing genuine mechanical back ache is not inconsistent with a return to appropriate modified work.
… I have seen a report from Dr Rushworth in which he feels there is very little wrong with the patient and this is clinically correct but I believe that the patient does have minor disc pathology which could lead to mechanical back symptoms.”

35 The Plaintiff was seen again by Dr Bodel on 9 September 1998. On that occasion it is recorded that, in addition to matters concerning his lower back, the Plaintiff “complains of some tenderness in the trapezius muscles at the base of the neck but there is no palpable involuntary muscle spasm. The patient has a reduced range of neck flexion, extension and rotation to about 50% of the expected range. During the course of the interview, however, he demonstrated a greater range of rotation.”
36 Dr Bodel’s opinion included:-
“It appears likely that he suffered a minor disc injury at the L4/5 level.

Again the patient’s level of complaint is unsupported by his objective findings and there are signs of medical inconsistency.
The patient really should have a repeat MRI scan of the lumbo sacral spine to more accurately assess his current lumbar status.
Based purely on his clinical presentation it appears likely that he is capable of part time light duty work although it appears most unlikely that he will return to any form of paid employment.”

37 In a further report of 15 September 1998, Dr Bodel said that based on clinical presentation and the x-rays Dr Bodel had seen, the Plaintiff had “approximately an 8% overall permanent impairment of function in the back (which) has probably arisen as a result of the injury at work on 13.4.1987.” Dr Bodel went on to say that there is no clinical evidence of work related impairment of a number of other parts of the body which he specified.
38 Dr Henke
Dr Henke is a consultant in rehabilitation medicine. In a report of 25 November 1996 to the Plaintiff’s solicitors, he recorded that the Plaintiff’s unwillingness to allow examinations placed some restrictions on the conclusions that could be arrived at but that the Plaintiff’s presentation was one of a poorly muscled and de-conditioned man with some wasting of the left leg. He said there was no evidence of neurological deficit but, given the x-ray findings, such would not be expected. He said that on the Plaintiff’s history one would anticipate the Plaintiff probably had bio-mechanic disco-genic low back pain without nerve root compression. He said the Plaintiff’s condition was compounded by his apparent belief that movement was potentially dangerous, leading to increasing levels of de-conditioning and poor muscle control. Dr Henke expressed the view that the Plaintiff continued to suffer from disco-genic back pain. He concluded that the Plaintiff was potentially capable of carrying out sedentary type duties such as light process work, ticket selling or perhaps as a console operator in a service station but it is unlikely that he could do this for more than four hours. A later report of 29 June 1998, while not as detailed, is to similar effect.
39 In a further report of 1 September 1998, Dr Henke said:-
“Overall I would therefore be of the view that this man’s potential for employment is poor and the likelihood of him obtaining employment at this time is probably less than 25%. If one ignores the job market issues it would be considered that his earning capacity is probably reduced by 50%.

The institution of treatments such as a pain management programme associated with psychiatric management for his dysthymic disorder has about a fifty percent probability of success. Should such success occur then I believe that the reduction in earning capacity would still be a minimum of 30% and if the treatments were unsuccessful then it would be unlikely that this man would rejoin the work force. One could not rate the probability of success with the pain management and psychiatric programs combined as better than forty to fifty percent.”

40 Dr Evans
In a report of 15 November 1990 to the Defendant’s solicitors Dr Evans concluded:-
“Mr Armaghanian, a large robust athlete, gives a history consistent with lumbosacral disc prolapse in 1987 and later left sciatic nerve root irritation. The condition could not have been entirely due to the simple work performed but symptoms could have been precipitated in the alleged manner.

There is a history indicating significant aggravation of symptoms of the condition in September 1988, and though no cause is admitted, I believe that the aggravation was more than likely due to a private cause…
The onset of symptoms in 1987 could only have occurred at work if there had been a major contributory cause or causes.
The present condition is in my view not significantly work related, since the onset of symptoms was only coincidentally related to work, and there has been a major non-work-related aggravation in the intervening period.”

41 Dr Evans opined that the Plaintiff would “remain unfit for heavy work for about 5 years, before a late spontaneous recovery.”
42 In a report of September 1992 Dr Evans advised that the Plaintiff should be referred to a psychiatrist for support and treatment, saying that the Plaintiff was not significantly physically disabled although unsuitable for some tasks including long or repetitive stooping and lifting. However, he regarded the Plaintiff unfit for general employment because of his neurotic reaction. The physical abnormality did not amount to more than 5% impairment of the whole person. In a report of 1 October 1993, Dr Evans said that the intensity of the Plaintiff psychological overlay rendered it practically impossible to assess the degree of genuine disability. He recommended psychiatric or psychological referral. In a report of December 1994 he repeated earlier findings to the effect that the Plaintiff retained good bulk and tonus of lumbar paravertebral muscularture. Again he regarded the Plaintiff fit to attend work although needing considerable attention from a rehabilitation coordinator. He estimated the Plaintiff was suffering from a 10% loss of effective use of the back as compared with a worst case.
43 It is a clear inference from Dr Evans’ reports that he had a deal of scepticism concerning the Plaintiff.
44 Dr Robbie
Dr Robbie was one of four psychiatrists whose reports were tendered. In a report of December 1990 to the Defendant’s solicitors he indicated that the Plaintiff’s attitude during consultation had precluded any reliable conclusion.
45 Dr McMurdo
In a report of October 1989 to the Defendant’s solicitors, Dr McMurdo said that the Plaintiff was despondent but not clinically depressed. In a report of December 1993 he said that the Plaintiff was not suffering from a specific psychiatric illness. In a report of January 1995 he said that the Plaintiff was not overtly depressed or anxious and had no psychiatric disorder which could be attributed to the accident. Dr McMurdo, at least in terms, seems to accept that the Plaintiff’s quality of life has been impaired by pain.
46 Dr Mastroianni
In reports to the Plaintiff’s Solicitors of 14 and 23 April 1998, Dr Mastroianni recorded that the Plaintiff was anxious and depressed. Dr Mastroianni expressed the conclusion that the Plaintiff was suffering from Chronic Dysthymic disorder precipitated by a number of factors which he enumerated. Included in these were: “the emotional significance of being unable to work due to back pain; the loss of self esteem and confidence in having failed to meet his own expectations as a husband and father; his perceived inability to control his pain or current life situation; (and) his chronic fear that any movement will exacerbate his disability”. Dr Mastroianni went on to discuss a number of factors which had or may have had a bearing on his diagnosis. Inter alia, Dr Mastroianni said that the Plaintiff’s emotional distress has manifested itself as both anxiety and as somatic pain symptoms and “his anxiety has also made him reluctant to move his spine, resulting in de-conditioned muscular tone”.
47 Another of the factors to which Dr Mastroianni referred as one which had or may have had a bearing on his diagnosis was malingering. In this regard he said, inter alia,
“In the absence of any available objective evidence to the contrary, Mr Armaghanian does not appear to display criteria often seen in malingering such as having a poor work record, prior incapacitating injuries, discrepant capacity for work and recreation, anti social personality traits or inconsistency in symptom presentation.”
48 Earlier in the report Dr Mastroianni had said “there is a consistency in Mr Armaghanian’s symptom presentation across all the medical reports from 1987 until 1996. Reports by Drs Sarian, Maniam, Morgan, Benczik, Selby-Brown, Grant and Henke all confirm radiological findings of disc bulging at L4/5 and L5/S1. Nonetheless, the consensus opinion seems to be that Mr Armaghanian is “free of neurological signs”… all reports corroborate the Plaintiff’s account that rehabilitation proved of limited benefit in controlling his symptoms.”
49 In that report, Dr Mastroianni also records that in 1996 Dr Sarian had prescribed an anti-depressant for the Plaintiff’s anxious mood but that despite good clinical effect the Plaintiff undertook the treatment for only 2 weeks, discontinuing it “because I didn’t want to take it any more and depend on it”. And that in November 1997, the Plaintiff’s dermatologist had prescribed Sinequan at low dosage. This medication is reported to have relaxed the Plaintiff but he ceased it after 9 days “due to his fears of becoming addicted to the medications and that such medications would be bad for his health in the long run.”
50 In his report of 23 April, Dr Mastroianni addressed the extent of the reduction in income earning capacity from which the Plaintiff suffered. Dr Mastroianni said that accurate assessment based on psychiatric impairment alone was difficult and he was not qualified to estimate the extent of physical impairment. He said however, that in general terms, a person’s ability to earn an income could be reduced by up to 30% in the context of a Chronic Dysthynic Disorder which remains untreated but in view of Mr Armaghanian’s quick and significant improvement in mood symptoms during both brief trials of anti-depressant medications, his loss of psychological symptoms could have been reduced to as low as 5-10% if he had continued to participate in the prescribed anti-depressant treatments by both Dr Sarian and his dermatologist.
51 Dr Strum
On behalf of the Defendant, Dr Strum saw the Plaintiff on 26 May 1998. He found the Plaintiff “a reluctant interviewee” and this made it difficult to make a diagnosis. Dr Strum records that the Plaintiff said that his main problem was pain, and anxiety and depression were only related to attacks of pain although it appears that the Plaintiff also said that he became depressed because of the fact that many doctors disbelieved him. The Plaintiff told him he had taken Sinequin (which I infer is the same as “Sinequan” referred to by Dr Mastroianni) but did not know whether he was helped by it.
52 Dr Strum concluded that Dr Mastroianni’s diagnosis would be appropriate “if the symptoms were not pain related, and Mr Armaghanian feels anxious and depressed most days for no definable reason”. Dr Strum could not convince himself that there were other symptoms of a Depressive Disorder present. He said that as the Plaintiff said he was in pain most days, Dr Strum thought the Plaintiff’s reaction of depression and anxiety was fairly normal.
53 Conclusions
Independently of the conclusions arrived at by Bruce J, these reports make it clear that the Plaintiff has lost some part of the efficient use of his back. Dr Sarian estimated 50%, Dr Maniam 17½%, Dr Rushworth 5-10% (of the lower back), Dr Selby Brown 10%, Dr Bodel 8% and Dr Evans 10%. It is also clear that the Plaintiff is not fit for, in the words of Dr Bodel, “unrestricted bending, twisting or lifting” or, in the words of Dr Morris “stooping, bending or heavy lifting”. Although there is evidence that such organic problems as the Plaintiff has had in recent years, or now suffers from, are the result of degenerative changes rather than anything that happened at work, the early history and the fact that complaints of pain have continued make me think that, at least in part, the Plaintiff’s current incapacity is due to the incident which is the subject of the proceedings. Indeed the contrary was not suggested. Nor was it suggested that this would change in the future.
54 Any finding that the Plaintiff’s incapacity is greater than indicated in the preceding paragraph depends on an acceptance of the Plaintiff’s evidence and that his presentation to the various medical practitioners to whom I have referred has been generally honest and reliable. Given the relative lack of objective evidence of injury or pain causing injury to the Plaintiff’s back, such opinions of the doctors -I exclude the psychiatrists for the moment - as are favourable to the Plaintiff’s claim are necessarily dependent to a large degree on what he has told them. And I am not persuaded that the Plaintiff has presented an honest and reliable picture of his condition.
55 One factor which, at the lowest, must raise doubts in this regard is the substantial difference between the symptoms described by the Plaintiff and what the doctors, on the objective evidence, would expect. However, I do not need to resolve that difference. The inconsistency in actions recorded in the medical reports to which I have referred is itself sufficient to lead to the conclusion just expressed.
56 A passage I have quoted from Dr Maniam’s report is suggestive of such inconsistency. Dr Morris adverts to it when talking of the flexing of the Plaintiff’s spine. Dr Rushworth’s reference to variations in actions and freedom and comfort in sitting points in the same direction. Dr Bodel said that the Plaintiff attempted to manufacture abnormal clinical signs and, albeit when talking of the Plaintiff’s neck, a variation in the range of rotation. In all or virtually all of the activities mentioned in this regard, the Plaintiff demonstrated greater freedom of movement when not being formally examined than when that was occurring or when compared with his description of his capabilities.
57 I do not forget the possibility that the Plaintiff, when being formally examined, may have been somewhat tense and unconsciously limited his actions to some degree. However the discrepancies seem to me so marked and so common that the most probable explanation is that that Plaintiff was dissembling and manufacturing a degree of disability which did not exist. I should add that, although I did not observe anything in the Plaintiff’s demeanour which would inspire me to believe him despite the matters to which I have referred, neither did I observe anything in his demeanour which caused me to disbelieve him. He did, frequently, poke his tongue out in a fashion which seemed to me more than a lick of his lips, but there was nothing to indicate the significance of this or whether it was a habit left over from childhood.
58 In reaching the conclusion expressed in the middle of the preceding paragraph, I do not forget the evidence of Dr Mastroianni. However I do not see in that evidence any explanation for the inconsistency in actions or between actions and the Plaintiff’s description of what he could do, to which other doctors referred.
59 I turn to the psychiatric evidence. That of Dr McMurdo is straightforward. Dr Strum’s is somewhat question begging. His explanation of the cause of any depression and anxiety from which the Plaintiff may be suffering is very logical if the Plaintiff does suffer the pain he alleges. But if he does not!
60 Dr Strum’s report offers the explanation of the Plaintiff being disbelieved by doctors. One may add that the prospects of not recovering what the Plaintiff wishes in this litigation would also be a possible explanation for a degree of anxiety, particularly after the time which has expired since the accident and during which the Plaintiff has taken, whether rightly or wrongly, honestly or dishonestly, the view that he cannot work. But perhaps more significantly, Dr Strum does not, as I read his report, conclude independently of what the Plaintiff asserted, that the Plaintiff suffers from anxiety and depression.
61 Dr Mastroianni, on the other hand does record that on examination the Plaintiff was anxious and depressed and that his thought content was preoccupied with negative themes. However I remain unpersuaded by his diagnosis.
62 In the first place, as Dr Mastroianni records, a diagnosable mental disorder requires that the syndromal pattern must not be merely an expected response to a particular event. This statement is echoed in an annexure to Dr Mastroianni’s report where it is said that a Dysthymic Disorder must be distinguished from a disorder where “the mood disturbance is judged to be the direct physiological consequence of a specific, usually chronic, general medical condition”. Even in the absence of Dr Strum’s opinion, I would readily conclude that if the Plaintiff suffers from the pain and disablement he asserts, anxiety and depression (and other effects) would follow.
63 In arriving at his diagnosis, Dr Mastroianni also considered and, as I read the report, excluded “Abnormal Illness Behaviour” including “conscious feigning of exaggeration of symptoms as in … malingering” as an explanation for the Plaintiff’s condition. He recorded that there was consistency in the Plaintiff’s symptom presentation. I accept that there may have been consistency in the Plaintiff’s complaints but evidence to which I have referred demonstrates that there has been, on his part, a deal of inconsistency also. I am unpersuaded by Dr Mastroianni’s exclusion of malingering in arriving at his diagnosis.
64 Although I do not rely on them, the differences between what the Plaintiff said to Dr Mastroianni concerning the effect of Sinequin and what he said to Dr Strum and in evidence on this topic, also affect the weight of Dr Mastroianni’s diagnosis. Dr Selby-Brown’s reference to this medication in his report of 24 March 1998 takes the matter no further. I do not know what to believe as to the impact on the Plaintiff of this medication.
65 One is nevertheless left with Dr Mastroianni’s recorded view that the Plaintiff was anxious and depressed. In that view, Dr Mastroianni echoes those of Dr Sarian (14 April 1998), Dr Maniam (16 February 1995), Dr Bodel (1989, 1996 and 1998), Dr Henke (25 November 1996), Dr Evans (16 December 1994) and Dr Robbie (11 December 1990). The weight of this evidence is such that one has to accept that the Plaintiff has suffered from anxiety or depression or both for an extended period.
66 Nevertheless, neither this nor anything else persuades me that the Plaintiff is or has been suffering from a psychotic disorder. There remain the explanations adverted to when I was considering Dr Strum’s report. The fact of being out of work provides another explanation as does the existence, from about the time of the accident or thereabouts, of this common law claim.
67 The conclusion that the Plaintiff has suffered from anxiety or depression or both does raise the questions whether, despite my reservations concerning the Plaintiff’s honesty, I should conclude he does suffer from significant pain and indeed whether those reservations are justified.
68 Having reflected on these matters, the conclusion at which I have arrived is that the Plaintiff - and the onus of proof is on him - has not established that he is more restricted than indicated in the first paragraph of this part of my Reasons and is not incapacitated by significant pain. I approach the assessment of the Plaintiff’s economic loss accordingly. I accept that he is not able to do the usual work of a machinist fitter and turner, which was his occupation. However, he has not established that his capacities do not extend to bench work or to, for example, the work of a ticket seller or service station console operator. The latter activity might well involve the Plaintiff in a small degree of training, but in the light of evidence he gave as to his abilities to learn new skills, I do not see this as other than a very minor complication.
69 Quantum
The Plaintiff claimed that, but for the accident, he would have worked till at least age 65, preferably with the Defendant. At the time of the accident the Plaintiff was aged 44 and had been employed by the Defendant for some 7 years. Previously he had a good employment record. He was very experienced in his trade of a machinist fitter and turner. He was married but did not own his own home or have any substantial savings. At the time of the trial before me (November 1998) he had two children aged 3 and 9. Largely the source of the matters to which I have just referred was the Plaintiff. On these matters, I accept him.
70 Evidence was given as to the wages which were earned by two other employees of the Defendant who, prior to the Plaintiff’s accident were comparable with him. There is a significant difference between their income since the Plaintiff’s accident presumably due to differences in the shifts, responsibility and possible overtime they have undertaken. However it was not challenged that the average of their income might fairly be taken as indicative of what the Plaintiff would have earned had he remained as an employee of the Defendant. I take that view. In Exhibit F, which provided most of this evidence, there is however a gap, and some apparent inconsistency for the year 1994/95. It seems to me that the average for that year should be taken as some figure between those for the previous and succeeding years. I have wondered about taking a figure half way between the two, but increases from year to year have clearly not been regular. The onus is on the Plaintiff to prove his case and in the circumstances I think I should take a figure by adding to the $678 for 1993/94 only $61, being 1/3 of the difference between that and the $861 figure for 1995/96. The result is $739.
71 There was also evidence of the earnings of another employee, a Mr Bowes, but this does not inspire me to adopt an approach different from that indicated.
72 A complication arises because of the fact that, in 1995/1996 the Defendant moved its operations from Broadway to Chullora and there used quite a different type of plant. The work force was reduced by ¾ and to have any chance of being included in the employees who were retained, persons such as the Plaintiff had to show that they had, or acquire, significant additional skills to those which had been required at Broadway. The Plaintiff gave evidence which I accept to the effect that training in these areas would not have been a problem, but it seems to me that his continued employment by the Defendant from the time of the move can not be assumed.
73 There was evidence of the award wage for people with his skills. It is hundreds of dollars less - in 1997/98 about $500 less, than the average of the amounts paid by the Defendant to the two comparable employees. Except for this and the evidence of what the Defendant paid, there was no evidence of other amounts paid to people with the Plaintiff’s skills. On the other hand, it is reasonable to conclude that the Defendant would not have paid so much over the award wage unless it was commercially required. This was occurring even back in 1988 before the move to Chullora, and it seems to me that I should infer that the award wage is not the sole measure of remuneration, outside the Defendant, for persons with the Plaintiff’s experience and skills.
74 Any estimate of what the Plaintiff, but for his accident, would have earned, is difficult. I think it proper to select the average figure for the comparable employees until the move to Chullora in 1995/96. There was no evidence as to the precise date of this but it is reasonable to proceed on the assumption it was at the end of 1995. Thereafter the average figure should be discounted somewhat because of the prospect the Plaintiff would not have been retained by the Defendant and would have been employed elsewhere at a wage nearer the award. I would not discount to anything like the amount of the award, nor would I simply take an average of the two. It seems to me that a discount of 10% from the average of the comparable earnings is reasonable. Because I think the Plaintiff was a very employable person prior to his accident, I do not intend to make any specific allowance for the possibility he might have been unemployed for a period in the event he did not continue with the Defendant.
75 Evidence of what could be earned as a console operator or ticket seller through much of the period with which I am concerned was given and, it seems to me should be accepted as indicative of what the Plaintiff could have earned, and could earn, not only in these occupations but, given his incapacity, generally. However the figures are not the same at any one time and vary at different times. The variations are also at times different from the end of financial year changes given for the earnings of the Defendant’s employees. Recognition has also to be given to the likelihood, as I perceive it to be, that the Plaintiff, because of his reduced capacity, is not as employable as he was. I think it probable that even with the best will in the world, his reduced capacity would lead to some unemployment or time off which would not otherwise have occurred. This conclusion may be supported by the number of unsuccessful job applications the Plaintiff has made, albeit the terms of these may have well argued against their success.
76 It seems to me that a reasonable approximation of the value of the Plaintiff’s post accident capacity can be derived by taking the figures in exhibit D for full time employment, choosing the figure or figures which applied for most of a year where there has been a change within the year, averaging these where there are figures for both console operators and ticket sellers (to the nearest $), and reducing the result by 10%.
77 Precision is not possible and I do not intend by selecting figures for particular periods or other specific items to suggest it is. On the other hand, it seems to me that a more reliable estimate of the value of his incapacity is likely to be arrived at by using figures the way I have than by any less specific figuring or merely choosing a global sum. The value of his incapacity should, it seems to me, be determined using the following figures:-

Date	Earnings, no accident	Earnings, given accident	Difference per week	Difference per period
11/5-30/6 1989	472	208.80	263.20
1989/90	540	208.80	331.20
1990/91	554	229.50	324.50
1991/92	574	247.50	326.50
1992/93	601	255.60	345.40
1993/94	678	255.60	422.40
1994/95	739	276.30	462.70
1/7-31/12 1995	861	283.50	577.50
1/1-30/6 1995	774.90	285.30	459.60
1996/97	812.70	287.10	525.60
1997/98	854.10	293.40	560.70
1998/99	Notes

· 1988/89. There is a lack of figures for this year in exhibit F. $472 represents 590/675 of $540 - these being figures which are in that exhibit. $208.80 is 90% of $232, this amount being taken from the following year in Ex D after taking account of what seems an obvious mistake in the figure of $332.
· 1994/95 For the derivation of $739, see text above.
· 1/7-31/12/1995 Figures from this time onwards in the “Earnings, no accident” column reflect the average figures in exhibit F less 10% referred to in the text above.
· 1998/99 There is no direct evidence concerning this year.
78 In arriving at the above I have taken no account of an argument advanced by the Defendant that the extent and measure of the Plaintiff’s incapacity, at least during some of the period, was to be determined reference to a decision of the Workers Compensation Court. The evidence of this was contained in the chronology which was tendered and the accuracy of which the Plaintiff verified. The relevant part of the chronology was in the following terms:-
“1 July 1993 Plaintiff awarded $70.00 per week compensation by Commissioner Hopkins in Compensation Court.”
79 It may be reasonable to conclude that the award was one made pursuant to s11(1) of the Workers Compensation Act and in respect of the injury with which I am concerned. It may be proper to infer it was for a period which was ongoing but the commencing date was not identified. Information as to when the Plaintiff left the Defendant’s employ was in evidence but details of what monies he received on leaving, and on what account was not the subject of evidence. Relevant may be evidence given by the Plaintiff before me that he had done no paid work since leaving the employ of the Defendant in April 1989.
80 However, there was no other evidence of the basis of this award. Even putting aside the reservations of Clarke J in Egri v DRG Australia Ltd (1988) 19 NSWLR 600 at 609 - see also Feltham v St Vincent’s Hospital (1993) 9 NSWCCR 547 - as to the applicability of findings in Workers Compensation proceedings to the issues with which I am concerned, the absence of evidence as to the basis of the award and the ultimate findings or conclusions leading to it is fatal to the Defendant’s argument here. For example, I do not know what, within the terms of s 11(1), “may (have) appear(ed) proper” in those proceedings.
81 As I indicated at the time of reserving judgment, the parties should have an opportunity of checking the accuracy of the figures in the above table. The figures for 1998/99 can hopefully be agreed between the parties. If not I will make an approximation based on 1997/98 and prior annual increases.
82 These figures will allow the appropriate calculations of total past and, by use of the multiplier appropriate to project the figures until the Plaintiff’s 65th birthday, future loss to be calculated. The usual 15% discount for the vicissitudes of life should be applied to the figure so arrived at for future economic loss. During the course of addresses, counsel agreed that the Defendant’s insurer had paid to the Plaintiff by way of “wages” the sum of $30,723.56. Exhibit 3, a letter of 7 August 1996, from the Defendant’s solicitors to the Plaintiff’s solicitors also referred to a payment of $166,946. Whether or not the latter payment should be reflected in any the determination of the matters left to me by the Court of Appeal, it is probable that the first certainly should be. I propose to publish these Reasons and stand the matter over to enable the parties to make the appropriate calculations.

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Last Modified: 01/04/2002