Bakker v Parmenter and WorkSafe

[2009] VCC 530

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT BALLARAT
CIVIL DIVISION

SERIOUS INJURY

Case No. CI-08-3488

STEPHEN JOHN BAKKER	Plaintiff
v
RAYMOND TIMOTHY PARMENTER	First Defendant
(TRADING AS RHTC SECURITY)
and
WORKSAFE	Second Defendant

---

JUDGE:	HER HONOUR JUDGE BOURKE
WHERE HELD:	Ballarat
DATE OF HEARING:	1 and 4 May 2009
DATE OF JUDGMENT:	22 May 2009
CASE MAY BE CITED AS:	Bakker v Parmenter & WorkSafe
MEDIUM NEUTRAL CITATION:	[2009] VCC 0530

REASONS FOR JUDGMENT

---

Catchwords: Accident compensation – Accident Compensation Act 1985 – psychiatric impairment – impairment to the lumbar spine – pain and suffering - loss of earning capacity

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N Bird with	Saines Lucas
Mr K Mueller
For the Defendants	Mr R Gorton QC with	Herbert Geer
Mr I Gourlay
HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to Section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment on 5 June 2004 (“the said date”).

2          The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity.

3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning “permanent serious impairment or loss of a body function”.

4          The plaintiff also brings this application pursuant to clause (c) which requires he establish a permanent severe mental or permanent severe behavioural disturbance or disorder.

5          The impairment of body function relied upon is the lumbar spine, the cervical spine and psychiatric impairment. No submissions were made by counsel for the plaintiff in relation to the cervical spine claim, which it was conceded was the weakest part of the plaintiff’s claim.

6          The plaintiff relied upon two affidavits and he gave viva voce evidence. He was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.

Outline of s.134AB

(i)         Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.

(ii)        The impairment of the body function must be permanent.

(iii)       The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, sub-sections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity.

(iv) By sub-section (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.

(v)        I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.

(vi)       Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter.

(vii)      Sub-sections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.

(viii)    Sub-section (38)(g) requires that questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established.

(ix)      Sub-section (38)(h) provides that consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.

(x)        I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 in reaching my conclusions.

The Plaintiff’s Evidence

7          The plaintiff is aged fifty-one, having been born on 21 June 1957. He lives in a de facto relationship with his partner and her teenage daughter.

8          The plaintiff was educated to Form 5. His early employment included five years in the Navy, and he then worked as a hospital cleaner between 1980 and 1990.

9          In 1990, the plaintiff joined the New South Wales Railways as a revenue protection officer. Whilst in that job he suffered a number of injuries. Further, the plaintiff hurt his left knee in January 1992, having previously injured it playing football in his early twenties.

10        In March 1994, the plaintiff strained his left knee again. He was then transferred by the Railways to customer service duties at Wagga.

11        In 1995, the plaintiff made a claim for crimes compensation, having been hit in the testicles when dealing with an offender whilst at work. He was somewhat depressed for quite a few months following this incident.

12        In September 1996, the plaintiff hurt his back loading baggage onto a train. In March 1997, he fell at work, injuring his back and left leg (“the fall”).

13        As a result of his back injury from the fall, the plaintiff underwent a laminectomy in June 1997 (“the back operation”). He also had an arthroscopy of his left knee in October 1997.

14        The plaintiff received a lump sum of one hundred and fifty thousand dollars in relation to the fall. In about mid 1998, as a result of the injury and persistent pain from the fall, the plaintiff became depressed and was prescribed antidepressants.

15        The plaintiff was off work on a disability pension until 2003. In 1999, he and his partner moved to Toora in South Gippsland. Whilst in Toora, the plaintiff was under the care of Dr Polmear.

16        In November 2001, the plaintiff was bitten on the left hand by an intoxicated female patron at the local hotel and he made a claim for compensation

17        From the time of the fall until the said date, the plaintiff had “normal twinges” with his back. They could be painful and his back movement was limited. He was prescribed low-dosage MS Contin of 15 milligrams per day. He also had a Pethidine injection probably every month or so. His back pain then, as now, ran across his buttocks and down into his right leg and foot.

18        As of 2003, the plaintiff’s medical condition had improved enough for him to look for work. He completed a two-week security course in Melbourne and obtained part time work in Toora, doing crowd control. However, Toora was too small a town to find full time employment so the plaintiff and his partner moved and settled in Ararat.

19        The plaintiff obtained a job with the first defendant as a crowd controller in February 2004, working five to ten hours a week in and around various locations in Ararat. He was paid twenty dollars an hour.

20        At the start of April 2004, the plaintiff obtained work as a gatekeeper at the Ararat abattoir, working thirty-eight hours per week and earning about $600 per week. The plaintiff deposed that it was static work involving attending the boom gates, doing paperwork and acting as first aid officer. He anticipated doing that work for a long time.

21        In cross-examination, the plaintiff gave further details of the nature of his duties at the abattoir. He was required to patrol the abattoir premises and ensure the freezers were at the correct temperature. He had to open the boom gate manually whenever a vehicle entered the premises. He was also required to check vehicles and record their registration numbers. For most of the time at work he was on his feet.

22        In the financial year 2003-04, the plaintiff earned $11,496 gross.

23        The plaintiff’s symptoms from the fall had substantially settled by the said date so that he was then able to hold down the full time job as a gatekeeper as well as working part time as a crowd controller. It gave him much satisfaction being able to hold down the jobs and provide financially for his family. He was managing quite alright – he was “handling things quite fine”. His back pain was bearable and he had some problems with his left knee. His back pain did not interfere with his work, he could do both jobs and he was happy. He was proud he was doing a job that was making both he and his family feel better.

24        If the plaintiff had to make the comparison, his back pain before the said date was may be two out of ten, but now his back pain is up to six or seven out of ten, depending, and it could be even higher.

25        On the said date, the plaintiff was rostered to work for the first defendant at the Ararat Hotel, commencing work at 10.00 pm. At about midnight, the plaintiff tried to eject an intoxicated patron from the hotel. The patron became abusive and threatened to kill the plaintiff. As he was escorting the patron from the hotel, the plaintiff was suddenly set upon by several of the other patrons who had been sitting with the patron. The plaintiff was grabbed and punched and kicked in the back and ankle (“the incident”).

26        The plaintiff did his best to try and keep his feet during the incident. He was terrified that “if he went down he was gone”. The scuffle was eventually broken up and those involved were ejected. After the incident the plaintiff went home.

27        The next morning the plaintiff woke with a lot of pain in his back, neck and right ankle. He went to work at the abattoir for the following week as usual but his pain was so severe he was forced to seek treatment from his general practitioner, Dr Venes. Dr Venes prescribed Tramal, which made the plaintiff sick. The plaintiff was referred for a CT scan and he was again prescribed MS Contin tablets which he had taken previously for his earlier injury suffered in the fall.

28        Following the incident, the plaintiff developed pain in his left knee. He complained to Dr Venes about his knee problem but was told by him to concentrate on his back problem first

29        The plaintiff found the incident quite frightening. He was upset about the attitude of the publican who blamed him and appeared to be taking sides with those involved in the fracas who were members of the local football team. The plaintiff wanted to see the offenders charged but “no one wanted to do anything”.

30        As a result of the incident, the plaintiff started having nightmares and trouble sleeping. He also developed stress. When he consulted his general practitioner, Dr Rashid, in July 2004, Dr Rashid advised him to see a counsellor. The plaintiff’s medication was changed a number of times and he was prescribed an antidepressant. The plaintiff was ultimately referred to Dr Varma, a psychiatrist, who did not help him.

31        Following the incident, the plaintiff continued to work as a gatekeeper. In cross-examination, the plaintiff explained he kept working at the abattoir because he had just started the job and he wanted to hang onto it. The plaintiff deposed he was certified for a few days off here and there until he was unable to continue work as result of his stress and injuries in October 2004. His claim for compensation was accepted.

32        The plaintiff has not worked, nor has he looked for work since that time.

33        In cross-examination, it became apparent that the plaintiff worked as a gatekeeper on normal duties until he was involved in a further incident on 8 September 2004 when he fell at work.

34        On that date he slipped over on some ice when he was going to open one of the freezers and landed on his buttocks. The plaintiff denied he had a significant increase in back and leg pain. He went to see the first aid officer who knew he had a bad back and sent him to the doctor.

35        Dr Venes, as a precaution, decided to put the plaintiff off work for a few days to make sure it was alright but after two days the plaintiff went back to work on light duties. In cross examination the plaintiff then said that after this fall he ended up having more problems with his back. It started flaring up and he was having leg problems. He went to see Dr Venes, who told him he had to go off work and gave him a letter to this effect.

36        In October 2005, the plaintiff was referred to Dr Clayton Thomas for pain management. Dr Thomas did not think his program would help the plaintiff and advised him to continue conservative treatment. At that time, the plaintiff was taking numerous types of tablets and he was referred for psychological counselling to Margot Murphy.

37        Since the said date, the plaintiff’s lower back pain has increased significantly and he now has pain radiating down into the buttock and into both legs and feet. Those symptoms are getting worse. His latest episode of more intense pain was two weeks ago when he had to go to the Ararat Hospital in Ararat where he was given an injection of morphine and given Valium to try and relax his back because he could not walk.

38        Before the incident, the plaintiff had not suffered pain or injury to his neck or shoulder. Since then he has neck pain which radiates into the shoulder and down his left arm with pins and needles in his hand. He frequently suffers from these symptoms which appear to be getting worse.

39        The only treatment the plaintiff has had for his neck was pain medication. He has not had any physiotherapy. He attended a rehabilitation specialist who said there was nothing further to do.

40        Ultimately the plaintiff’s left knee became so bad he was referred to an orthopaedic surgeon, Mr Andrew Byrne, who performed an arthroscopy on 28 September 2005, repairing a lot of damaged cartilage.

41        In cross-examination, the plaintiff agreed that by October 2005 he was having significant problems with his left knee and that this problem was severely disabling before he underwent a knee replacement in November 2007. At the time of this surgery, the plaintiff was having problems walking because of his knee, and his knee, together with his back, interfered with him getting up and down from a seated position.

42        The plaintiff agreed that his knee became progressively worse from 2005 to 2007. The plaintiff denied that a lot of the reason for the restriction of his activities around the house was his knee pain, saying it was the pain in his arm, neck and shoulder. He agreed that his knee will play up but it is just something he has to deal with along with everything else. He “loads himself up” with painkillers and tries to do the best he can. His right ankle which was injured in the incident has now settled down.

43        The plaintiff underwent six weeks’ radiation therapy in September 2005 after a tumour was found in his right thigh. He has regular chest x-rays to make sure it has not spread.

44        The plaintiff disagreed that the cancer and treatment was something of very great concern to him. He explained that Professor Choong had dealt with it. The plaintiff was happy that his doctor “had got everything” and “the chest x- ray kept coming up clear”. It was “one thing he did not have to worry about.” He agreed he was quite upset when the carcinoma was first discovered, but he tried to be positive and get on with it.

45        The plaintiff continues to experience chronic pain and feels very stressed. His concentration and memory have become very poor and he feels very low and he has no motivation. He is frustrated, irritable and hypervigilant. He continues to experience nightmares about the incident and he sleeps very poorly. As a result, he feels constantly exhausted.

46        The plaintiff gets headaches from tension and stress. He has had migraines for years. He has got more headaches since the incident. He might get headaches for a couple of days in a row and then has none for a while. In cross examination he agreed his headaches had been “much the same all the way through”.

47        The plaintiff finds it very difficult to concentrate due to his injuries, particularly in relation to any paperwork. This causes frustration and arguments as his partner needs to check everything for him.

48        The plaintiff also often breaks down and cries due to his frustration and inability to do the majority of things he used to do, such as gardening activities, stripping furniture, playing darts, going for drives and picnics and walking the dogs.

49        The plaintiff continues to have one or two nightmares a week which cause him to wake in a sweat and to sleep poorly. He takes sleeping tablets almost nightly and recently he has begun sleepwalking, which is of concern to him. This has happened about eight times, and on the last occasion it appeared the plaintiff attacked his partner.

50        The plaintiff is apprehensive about going shopping and socialising in Ararat where his assailants live. He has had quite a few panic attacks since the incident. He recently had an attack on a crowded tram when he went to Melbourne to see Dr Leahey. He has a lot of trouble coping with crowds.

51        The plaintiff’s libido has all but disappeared since the incident. Prior thereto he used to enjoy sex on average twice a week but he has not had sex since the incident. His illness has placed a great deal of strain on his relationship, and in 2008 his partner left him for about three months because she found it difficult to cope with his depression and irritability.

52        The plaintiff deposed, that in about June 2006, he was attacked by his daughter’s ex-boyfriend and the ex-boy friend’s father, who were charged and convicted of assault (“the assault”). The plaintiff was hit in the side of the head and grabbed around the arm but he did not fall to the ground when assaulted. The plaintiff attended his doctor complaining of headaches, which lasted for a few days, and also swelling around the eye. He did not suffer increased pain in his neck and back as a result of the assault but he felt emotionally vulnerable and traumatised by it.

53        It seems however, the assault took place in about late June/early July 2007, and in September 2007, the plaintiff was admitted to the Melbourne Clinic for psychiatric treatment for about two weeks. He had suicidal thoughts at that time.

54        At times in the period leading up to admission to the Melbourne Clinic, the plaintiff was non-compliant with his medication. He disagreed that his non- compliance was the reason for the admission to the Melbourne Clinic and said that he was feeling suicidal and unwell before that. He had been discussing this situation with his psychologist and psychiatrist and he was having trouble dealing with life. His depression was “spiralling down and down and everything,” it was like he was “in a black hole going nowhere and he could see no way out”.

55        Since the hospitalisation at the Melbourne Clinic, the plaintiff still has moments when he feels there is no point in going on because of the way things are and the way his life is as a result of what others have done to him.

“And it’s just a case of I’m up, I’m down. My depression goes up here, down there, and I have – I just have trouble dealing with everything at the moment.”

56        The plaintiff explained that when he sat down with his partner and explained to her that Dr Leahey advised him that he needed to take medication she said, “Well, okay, take it and we’ll keep an eye on you”. In the past she has put the plaintiff’s tablets aside to make sure he does not take too many. She now makes sure he takes only those prescribed.

57        The plaintiff denied that his partner blamed their domestic difficulties on his antidepressant medication saying she in fact blamed them on his attitude, his mindset, his problems and his inability to deal with things.

58        The plaintiff is presently taking his antidepressant medication regularly. He agreed it had improved his mental state somewhat but he still has problems with going out and dealing with crowds, and he continues to have panic attacks.

59        When the plaintiff does go out he goes out because he has to. When he goes shopping he goes with his wife and he stays in the car unless she needs help.

60        In re-examination, the plaintiff explained that on a normal week he would go out maybe three times and has to go out when he is by himself to get the bread or milk and gets home as quickly as he can. The plaintiff’s partner does not have a driver’s licence and he has to force himself to drive if they have to go out. He does not go out unless he has to go to Melbourne or to doctors. He does not have any friends. He does not go to sporting activities in town nor does he go to the pictures or out for dinner.

61        Basically the plaintiff watches the television all day and “drives his partner crazy”. He feels tired and lethargic and he has no energy. He ruminates about how his life has gone from what it used to be before the incident to what it is now, and he gets more and more depressed and that makes his partner upset with him. He has trouble talking with her for a long time as he cannot concentrate.

62        The plaintiff tries to undertake activities around the house, helping his partner do a bit of the dishes or wiping up or light cleaning and he tries to water the garden. He tries to do basic repairs when there is no one else to do them because he cannot afford to pay other people to do them.

63        As a result of his injuries, the plaintiff can no longer play darts or snooker or repair furniture.

64        The plaintiff’s presently takes 90-milligrams of MS Contin per day. He also takes Endone, a rapid painkiller, to handle breakthrough pain, Mobic, an anti- inflammatory, and also Effexor daily. He takes the medication for his back, neck and shoulders.

65        The plaintiff continues to undergo counselling approximately fortnightly with Margot Murphy and he also attends Dr Leahey every month or so.

66        The plaintiff does not think his back or neck would allow him to work as a gatekeeper. He would have trouble walking around and checking things and using the boom gate. Mentally he could not concentrate on what he would have to do. He would be worried about making mistakes and how he would deal with an emergency.

67        The plaintiff initially said it was a possibility in that time that his knee problem alone would have stopped him doing his old jobs, but then agreed it was a probability.

The Plaintiff’s Medical Evidence

68        The plaintiff attended Dr Venes at the Ararat Medical Centre (“the Centre”) on 11 June 2004 complaining of neck and back pain and a sore right ankle as a result of the incident. The plaintiff was started on Tramal but he was unable to take it. Dr Venes noted that the plaintiff was then started on MS Contin for his sore back and neck.

69        In July 2004, Dr Venes thought the plaintiff had a discogenic complaint apart from ligamentous and muscular pain.

70        When seen on 22 July 2004, in Dr Venes view, the plaintiff was displaying symptoms of chronic pain and Post-Traumatic Stress Disorder (“PTSD”). The plaintiff was referred for a CT scan of his neck and lower back, and x-rays of his thoracic spine. He was started on antidepressants and referred to a psychiatrist, Dr Varma, in September 2004.

71        Dr Venes concluded that the incident caused pain in an already vulnerable area at L4-5, as well as new trauma to the neck and referred pain to the shoulders. Dr Venes thought the plaintiff’s employment was a significant contributor to his present pain and also his PTSD. At that stage, Dr Venes discouraged a return to crowd control work.

72        Dr Venes reported in October 2004 that the plaintiff’s back, neck and shoulder pains were deteriorating and his pain was getting worse. He advised the plaintiff to cease to work for medical reasons. At that stage Dr Venes could not be certain as to whether the plaintiff could return to work in what capacity as he was having a lot of trouble controlling his pain and he required strong medication which would affect his performance.

73        Since Dr Venes retired in October 2004, Dr Rashid has been looking after the plaintiff at the Centre. Dr Rashid reported in March 2005 that the plaintiff had made little progress and continued to complain of pain radiating from his lower back into his buttocks, down the back of his legs to his ankles. The plaintiff also had constant headaches and neck pain going into his left shoulder.

74        In Dr Rashid’s view, at that time, the plaintiff would not be able to return to his pre-injury employment because of the physical demands of the job and also the psychological stress it entailed.

75        On 11 April 2005, the plaintiff was given a Tramal injection and Tramal tablets at the Centre. That treatment made him sick and gave him chest pain. The plaintiff was sent to hospital for observation and an EMG which was carried out was normal.

76        Dr Rashid noted in December 2005 that the plaintiff had exhibited a lot of stress-related symptoms with disturbed sleep, affect on his relationship, anxiety, recurring thoughts of the incident and nightmares. He also had ongoing back, neck and knee pain. Dr Rashid suggested that the plaintiff have psychological treatment.

77        Dr Pope at the Centre reported in March 2008. He noted that the plaintiff was seen by Mr John Bourke, orthopaedic surgeon, in about October 2004 as a part of a WorkCover assessment. Dr Rashid noted that Mr Bourke was concerned with the plaintiff developing a chronic pain syndrome, as was orthopaedic surgeon, Mr Paul Kierce.

78        In March 2008, Dr Pope reported that the plaintiff had ongoing pain in his neck, around his shoulders, lower back and left knee. He mentioned that In July 2007, the plaintiff’s back and neck pain were exacerbated when he was involved in a fight with his daughter’s ex boyfriend. Since that time the plaintiff had remained anxious, especially since his attacker remained in town.

79        Dr Pope concluded that the plaintiff had ongoing chronic neck and back pain with the development of a chronic pain syndrome since the incident. The plaintiff had required psychological counselling and psychiatric intervention and remained on strong opiate analgesia, as well as antidepressants. In Dr Pope’s view, the plaintiff had probably little work potential given his lack of further training and that he was unlikely to find employment in the foreseeable future.

80        Dr Pope reported on 27 April 2009 that the plaintiff’s back pain had continued and that x-rays at St Vincent’s Hospital’ Chronic Pain Management Centre had been taken following a recent exacerbation of the plaintiff’s back pain.

81        The plaintiff has attended Ms Margot Murphy, psychologist, since June 2005. She reported at that time, since the incident, the plaintiff had experienced a significant decline in his capacity for concentration and he complained of severe and frequent headaches.

82        Ms Murphy noted that answers given by the plaintiff to a check list in June 2005 were indicative of the plaintiff having experienced extreme trauma, and supported a diagnosis of PTSD.

83        When she last reported in February 2008, Ms Murphy noted that the plaintiff’s situation was such that full recovery was unlikely as he continued to be at risk of ongoing traumatisation. In her view, that was due to a combination of circumstances that left him and his family feeling vulnerable and trapped in their home. The plaintiff told her of experiencing severe panic attacks whenever he unexpectedly encountered the people who assaulted him.

84        The plaintiff told her of the circumstances of the 2007 assault. She noted that the plaintiff was able tod defend his family but their home was damaged. She considered that the plaintiff experienced a severe emotional response to the assault which continued to plague him. In her view there was no doubt that the severity of the assault had been exacerbated by the incident.

85        Ms Murphy thought that the plaintiff did not have a work capacity because he could not focus sufficiently to perform routine tasks; his pain level was such that he found activity difficult; he was chronically exhausted from lack of sleep; he remained at risk of panic incidents; he had lost his basic self confidence and his mood was such that he was not capable of basic social interactions.

86        Mr Andrew Byrne, orthopaedic surgeon, first saw the plaintiff on 15 August 2005 in relation to his left knee complaint. At that time the plaintiff had difficulty with knee pain and with walking. Kneeling and squatting were almost impossible for him. He had persistent swelling in his knee. Mr Byrne thought the plaintiff had a significant injury to his knee as a result of the incident.

87        At that stage Mr Byrne thought the plaintiff’s knee was in trouble and that he had significant degenerative change affecting his knee joint. He suggested an arthroscopic debridement and thought all attempts should be made to delay the inevitable knee replacement as long as practical.

88        Mr Byrne carried out a left knee arthroscopy, medial meniscectomy, chondroplasty and assessment of the plaintiff’s anterior cruciate rupture on 28 September 2005 (“the first knee operation”).

89        Post surgery, on examination on 4 October 2005, Mr Byrne noted that the plaintiff was really troubled by severe arthritis in his left knee. He suggested the plaintiff go back on Mobic to see if that settled his knee pain.

90        At that examination the plaintiff advised Mr Byrne that he had noticed a lump involving his right thigh. Mr Byrne found a palpable mass, and an MRI scan performed on 13 October 2005 confirmed an appearance suggestive of a soft tissue sarcoma. An urgent referral was made for the plaintiff to see Professor Choong. The plaintiff underwent surgery with Professor Choong and had radiotherapy.

91        The plaintiff was reviewed by Mr Byrne for his knee complaint on 29 November 2005 where the need for a future knee replacement was discussed.

92        On review on 5 May 2006, Mr Byrne noted that the plaintiff still had significant problems regarding his knee; it was very painful and even walking was difficult due to pain. The plaintiff was using a walking stick.

93        Whilst he last reported following in May 2006, Mr Byrne again operated on the plaintiff’s knee in November 2007, when he carried out a total left knee replacement. There is no evidence from Mr Byrne as to the success or otherwise of this second knee operation.

94        Dr Clayton Thomas, consultant in rehabilitation and pain management, saw the plaintiff on 12 October 2005 on referral from Dr Rashid. At that time the plaintiff reported pain in his back, left shoulder, left knee and his neck.

95        On examination, Dr Thomas noted there was about thirty per cent of normal back movement. Cervical movements were limited to about sixty per cent of normal and the plaintiff could not flex or abduct his left shoulder more than one hundred and twenty degrees. Neurologically it was noted the plaintiff had an absent right ankle jerk but otherwise seemed to be intact.

96        In Dr Thomas’s view, the plaintiff was suffering from symptomatic spondylosis to his cervical and lumbar spine. Dr Thomas noted that the plaintiff’s shoulder seemed to be quite a problem but it did not quite fit with a rotator cuff problem and hence the diagnosis was uncertain without further imaging. He noted that the culmination of physical and emotional injuries that the plaintiff had sustained added up to a marked level of disability.

97        As he was fearful of leaving his family and did not want to come to Melbourne, Dr Thomas was not overly interested in putting the plaintiff in a rehabilitation program that, in the circumstances, he thought would not make any substantial difference to him. Dr Thomas thought the plaintiff clearly needed to continue psychiatric treatment and that he should see a physiotherapist for exercises. He did not think the plaintiff could return to any form of meaningful work in the situation that he was in, and given the length of time he had been off work, he suspected the plaintiff would probably not be able to work again.

98        The plaintiff was examined on behalf of the defendants by Dr Stephen Stern, consultant psychiatrist, on 18 August 2006. The plaintiff complained to Dr Stern of depression and panic, avoidance, disturbed sleep with nightmares, vivid recollection of the incident and reduced memory and concentration.

99        On examination, Dr Stern found the content of the plaintiff’s speech was depressive, as was his affect. There was no evidence of thought disorder, delusions or hallucinations, and it was noted the plaintiff was not obsessional. The plaintiff’s memory and concentration were reduced, his orientation was intact and he had fair insight.

100       In Dr Stern’s view, the plaintiff was suffering from a chronic PTSD, the DSM IV criteria having been satisfied. Dr Stern considered the plaintiff’s psychiatric state related to the incident and his resultant injuries. He considered the plaintiff psychiatrically incapacitated for all work. Dr Stern noted the plaintiff’s social and leisure activities had been reduced and that his activities of daily living had not been limited by psychiatric factors. He considered the plaintiff’s condition had stabilised and that he required long term psychological treatment.

101       The plaintiff first presented to Dr Leahey, psychiatrist, on 22 May 2007. At that time the plaintiff was significantly depressed by nightmares and he reported three years of lowered mood, chronic anxiety, poor sleep and appetite and poor concentration. He reported no history of psychiatric problems prior to the incident.

102       On examination, Dr Leahey noted that the plaintiff’s affect was depressed and he appeared at times to be near tears. In Dr Leahey’s view there was no formal thought disorder and no psychotic symptoms were elicited. There were prominent depressive themes. The plaintiff reported thoughts of suicide but no plan. He had moderate insight in terms of his illness and situation.

103       Dr Leahey diagnosed a major depressive illness with some PTSD features, and he recommended the plaintiff commence the antidepressant, Effexor.

104       Dr Leahey noted that over the next month there was some slow improvement in the plaintiff’s mood and reduction in his anxiety. However, unfortunately, in July 2007, the assault occurred, and in addition to some aggravation of his physical complaint, the assault led to a considerable relapse of the plaintiff’s depression. Associated with this assault there was stress and conflict in the plaintiff’s home. Dr Leahy noted that there was a specific increase in tension as the plaintiff’s partner was becoming increasingly focussed on the plaintiff’s medication as a source of all their troubles. The plaintiff had become essentially non-compliant, only taking Effexor when he could do so without his partner’s knowledge.

105       After three months’ outpatient treatment, Dr Leahey admitted the plaintiff to the Melbourne Clinic to reassess his condition and treatment and to allow him to participate in some of the group programs.

106       Dr Leahey noted this was not a complete success as the plaintiff was entirely focussed on the enforced separation from his partner and the plaintiff admitted at times he felt like sabotaging the treatment. However, during the inpatient stay at the Melbourne Clinic, Effexor was reinstituted at the appropriate dose and the plaintiff’s considerable anxiety was managed with Benzodiazepines.

107       As of February 2008, Dr Leahey had seen the plaintiff on four occasions since he was discharged from Melbourne Clinic.

108       The plaintiff then presented as somewhat calmer in Dr Leahey’s view, probably due to his almost full compliance with Effexor. The plaintiff reported feeling low in mood and he was objectively moderately depressed. He still reported feeling chronically stressed, hypervigilant and easily startled. It was noted he now had no flashbacks.

109       In Dr Leahey’s view the plaintiff had suffered a significant physical injury, and secondary to that he had developed a Major Depressive Illness due to chronic pain, loss of role and identity, financial hardship and the pressure that was thus placed on his relationships. Dr Leahey considered that optimal psychiatric management had been compromised by the plaintiff’s partner’s interference.

110       In Dr Leahey’s view, the ongoing stress and anxiety the plaintiff reported was clearly not attributable solely to his workplace injury but was maintained by ongoing domestic issues. The plaintiff told him that his home life was settled and happy before the incident and that it was the strain from the incident that had led to the conflict. Dr Leahey suspected the workplace injury had aggravated underlying tensions in the plaintiff’s relationship, in as much as it had led to the plaintiff and his partner spending considerable time together.

111       Dr Leahey considered, from a psychiatric perspective, it would be of benefit to the plaintiff if he was encouraged to seek some appropriate work outside the home.

112       Dr Leahey most recently reported in February 2009 that the plaintiff had made slow progress in his recovery from his depressive illness and associated anxiety phenomenon from February 2008. In his view, that was principally due to the plaintiff’s poor compliance with antidepressant therapy.

113       As a consequence of his non compliance, Dr Leahey noted that the plaintiff remained low in mood, amotivated and irritable with poor appetite and sleep. The latter the plaintiff attributed particularly to his recurrent trauma associated nightmares and rumination about the incident and current situation. The plaintiff remained quite anxious, particularly when leaving the house and going into central Ararat where he might see members of the local football team.

114       Dr Leahey noted that in recent months the plaintiff had begun to get out of the house more, going for short walks and going with his partner to the shops. In Dr Leahey’s view, that was likely to have contributed to a recent improvement in the plaintiff’s mental status. He considered the plaintiff remained significantly depressed; his ongoing difficulty with medication compliance being the major impediment to his recovery.

115       The plaintiff was examined by Dr Michael Epstein, psychiatrist, on 4 June 2008. The plaintiff reported difficulty sleeping and he complained of continuous pain in his low back, radiating down both legs into his feet. He told Dr Epstein he had nightmares about the incident once or twice a week and he had occasional flashbacks every few months. His relationship was in tatters, he felt depressed every day, and he was bored, frustrated, lonely, isolated, irritable, exhausted and agitated. His libido remained low and he had infrequent sexual activity.

116       On examination, the plaintiff attended with a walking stick. In Dr Epstein’s view, the plaintiff appeared well orientated to time, place and person. His affect was restricted and he appeared depressed, irritable and mildly anxious. The plaintiff had no obvious problems with memory or concentration and there was no evidence of thought disorder.

117       In Dr Epstein’s view, as a result of the incident, the plaintiff had developed PTSD, together with ongoing problems with his left knee and lower back.

118       Dr Epstein concluded that as a result of chronic pain, discomfort and disability, together with the PTSD and panic attacks, the plaintiff had developed a Chronic Adjustment Disorder with depressed mood. He considered the plaintiff’s treatment should continue.

119       Dr Epstein believed that the plaintiff’s psychiatric state alone prevented him from returning to work in any capacity because of his lack of motivation, fatigue, and irritability, problems with memory and concentration and difficulty coping with pressure.

120       Dr Capes, industrial physician, examined the plaintiff for medico-legal purposes on two occasions – initially on 6 June 2008, and more recently on 7 April 2009.

121       In June 2008, whilst he told Dr Capes he had undergone back surgery in 1997, the plaintiff told him that he did not have any major problems with his back at the time of the incident. He told him he had an occasional twinge of back pain with no leg pain and his knee was basically pain free. It appears from this report that Dr Capes believed MS Contin was first prescribed after the incident.

122       The plaintiff told Dr Capes that his knee symptoms had worsened following the incident, to the extent that he had trouble walking and he eventually had to have a total knee replacement in November 2007. He still had constant pain in his knee.

123       On examination in April 2009, the plaintiff told Dr Capes that his neck had deteriorated since the earlier examination. He was in constant severe pain, aggravated by sitting, driving, lifting weights, neck movements and in bed at night. His low-back pain had also deteriorated. It was constant and quite severe and getting worse. The pain radiated into both buttocks, legs and into the feet. There had been a relentless progression of pain since the incident. His left knee was still painful and there had been no improvement. He had restricted painful movement and it was still tender and swollen. The plaintiff also said his psychological symptoms were worsening.

124       Dr Capes noted the plaintiff had been on a walking stick for some years, using it for both his knee and back.

125       On examination, straight leg raising was to thirty degrees bilaterally. There was tenderness of the whole length of the lumbar spine. All neck movements were greatly decreased and the plaintiff was tender over the whole of his cervical spine. The plaintiff’s left knee was swollen and tender generally and movement was from ten degrees to one hundred degrees.

126       In Dr Capes’ view the diagnosis was aggravation and possible acceleration of cervical and lumbar disc degenerative disease and a left knee replacement for aggravation of left knee osteoarthritis. He noted the left knee replacement was satisfactory only.

127       Dr Capes considered that there was a possibility that there may be a secondary deposit in the plaintiff’s L4 vertebra. However, he noted the plaintiff’s back pain was not that of a secondary deposit but one of ongoing disc degenerative disease.

128       Dr Capes thought the plaintiff’s prognosis was very poor and that he had no capacity for work. He did not specify which of the plaintiff’s injuries resulted in this incapacity having diagnosed knee, back and neck problems.

129       Mr Schofield, orthopaedic surgeon, examined the plaintiff on 12 June 2008. The plaintiff complained of neck pain felt on the left side of the midline radiating to the left shoulder and down his arm to the hand, including tingling of the fingers all the time. The plaintiff also had back pain which was much worse than the mild tingling he noted before the incident. It was now constant, radiating across both buttocks and down the back of both legs to the feet.

130       On examination, the plaintiff’s lumbar spine was mildly tender and there was restriction of movement. Straight leg raising on the left was to forty degrees and on the right, fifty degrees. Neurological examination revealed some weakness of dorsi flexion and eversion of the left foot and absence of the right ankle jerk. Examination of the neck revealed a normal posture but a reduced range of movement which was more significant with pain on extension. There was diffuse posterior tenderness of the neck but normal upper limb neurology. There was a mild loss of full abduction and flexion, and external and internal rotation of the left shoulder. There was a positive impingement test.

131       Mr Schofield found a moderate swelling of the knee, tenderness around the knee cap and a range of movement from full extension to ninety degrees flexion.

132       In Mr Schofield’s view it was likely that the absence of the right ankle jerk was due to the old injury in 1997. Mr Schofield obtained a history that at the time of the incident the plaintiff only had a mild twinge of back pain from time to time. Mr Schofield considered that as the plaintiff’s back pain had become more painful since the incident, it was likely the plaintiff did suffer evidence of a disc injury at one or both levels, and that an MRI scan and further x-rays were required to make a diagnosis.

133       Having seen the recent MRI scan, Mr Schofield was of the view that there was no evidence that the tumour had any connection with the incident, and on balance he thought it was more likely than not to be coincidental. Mr Schofield noted his examination of the plaintiff did not reveal any evidence of any pathology other than that due to the injury he received. The CT scan of 2004 showed a bulge at L4-5 but no evidence of any pathology in the L4 vertebral body.

134       Professor Kannourakis, oncologist, saw the plaintiff on referral from Dr Pope on 24 April 2009.

135       Professor Kannourakis made a diagnosis of metastatic liposarcoma of the right thigh. He noted there was initial presentation with liposarcoma involving the right thigh. There was a resection in November 2005 followed by radiation therapy in December 2005. He also diagnosed “…..? pathological fracture of L4 with extension into the spinal canal, with extension into the left L5 and L4 nerve root” - April 2009.

136       Professor Kannourakis noted that after the surgery in November 2005, the plaintiff remained free of disease until recently, when he presented with back pain and pain radiating down his leg. This was found on recent MRI and CT scans at St Vincent’s Hospital to be a lesion involving the fourth lumbar vertebra. Professor Kannourakis noted the mass was extending and pushing onto the nerve roots as they departed from the spine. In his view, almost certainly that was most likely to be related to the plaintiff’s liposarcoma, and he sent the plaintiff back to Professor Choong to manage and have the appropriate biopsy and surgery performed urgently.

137       Professor Kannourakis did not have an opinion as to whether the incident was in any way associated with the plaintiff’s current situation and pain and he thought it would be most unlikely to be associated. He was unable to offer, at that stage, any further information in relation to the plaintiff’s life expectancy. If it turned out to be metastatic liposarcoma, Professor Kannourakis considered that obviously the plaintiff’s life expectancy would be of the order of six to twelve months.

Investigations

138       A CT scan of the lumbar spine was carried out on 14 July 2004. The L5-S1 disc was moderately narrowed with evidence of intradiscal gas and evidence of a previous laminectomy at that level. There was a minor diffuse dorsal disc bulge present which did not seem to deform the sac or exiting S1 nerve root. The L4-5 disc exhibited a mild, diffuse dorsal angular bulge which slightly indented the anterior margin of the thecal sac. It compromised the subarticular lateral recesses slightly. It was noted the bulge may be of relevance with L5 radiculopathy.

139       A whole body scan was carried out on 19 October 2005. It showed a vascular lesion in the right thigh and an abnormal uptake in the right side of the skull and in the left fourth rib.

140       An MRI scan of 15 April 2009 showed a malignant infiltration of the L4 vertebral body with a pathological compression fracture and extension into the left lateral anterior epidural space and proximal foramina of tumour and the left paravertebral space. There was compression of the traversing L5 and exiting L4 nerve root at that level. There was no evidence of recurrence of tumour within the right thigh.

141       A whole body thallium bone scan conducted on 15 April 2009 showed likely thallium uptake within L4. There was no definite evidence of thallium abidity elsewhere.

Vocational Evidence

142       Mr Gary Cooper of The Health and Safety Managers Pty Ltd carried out a vocational assessment on 4 April 2009.

143       In his opinion, the plaintiff was not likely to be able to obtain and maintain any employment on a fulltime basis for the foreseeable future. Given his symptoms, he thought it unlikely the plaintiff would be able to obtain alternative employment. He considered the plaintiff would probably be unable to attend work every day because of his overall condition and that he would need time off any work for counselling and other medical treatment.

144       In Mr Cooper’s view, the plaintiff’s physical condition precluded him performing anything other than clerical work and his psychological condition prevented him from undertaking clerical duties. He did not consider the plaintiff had a relevant capacity for employment.

The Defendants’ Medical Evidence

145       Mr Huntsdale, orthopaedic surgeon, examined the plaintiff on 3 August 1998 in relation to the fall. At that time the plaintiff complained of constant back pain and pain into his right buttock and down his thigh to his knee. The plaintiff was taking Prozac for depression and Enzone at night to settle and also Valium. He was complaining at that time of difficulties with his marriage and said he was having sexual dysfunction.

146       Mr Huntsdale believed the plaintiff had now become a chronic pain syndrome problem and he considered the plaintiff’s prognosis overall was poor.

147       Mr Kierce, orthopaedic surgeon, to whom Dr Rashid referred the plaintiff, wrote to Dr Rashid on 22 February 2005. Having examined the plaintiff, Mr Kierce concluded the plaintiff may well have strained his lower back in the incident, aggravating pre-existing lumbar spinal stenosis.

148       In Mr Kierce’s view, unfortunately, the plaintiff exhibited abnormal illness behaviour which made him very cautious about ordering any interventional treatment. The only measure Mr Kierce recommended was for the plaintiff to have a trial of caudal epidural anaesthetic and steroid injections. He could not recommend any treatment be given to the plaintiff’s neck as, in his view, there was a marked discrepancy between the plaintiff when he was in normal conversation and moving about compared to when he was asked to actively move his neck, the movements being absolutely negligible.

149       The plaintiff was examined by Dr Senadipathy, consultant psychiatrist, on 10 June 2005. On examination, he noted the plaintiff’s mood was anxious and he claimed to be depressed.

150       Dr Senadipathy found that the plaintiff’s affect was normal, as was his thinking. There were no abnormal perceptions. He noted the plaintiff concentrated well and answered questions clearly.

151       In Dr Senadipathy’s view, the plaintiff had not sustained injury in the incident. The plaintiff had normal anxiety relating to confronting alleged assailants on the streets of Ararat and anger at the police for not taking his allegation seriously. The plaintiff was frustrated with pain, and in Dr Senadipathy’s view, the plaintiff’s condition was a mild adjustment reaction to his predicament and it had not resulted in any incapacity for employment.

152       Dr Senadipathy considered the plaintiff had the mental capacity to undertake his pre-injury employment as a security officer but not at the hotel, where he was unwanted. He did not consider the plaintiff needed medical treatment or psychiatric and psychological treatment for a mental illness relating to his employment. In Dr Senadipathy’s view there was no likelihood of permanent impairment resulting from the incident.

153       The plaintiff was examined by Dr Andrew Miller, occupational health consultant, on 8 January 2008. The plaintiff complained to him of pain and stiffness in his neck and back, pain in his knees and right ankle, anxiety, depression and insomnia.

154       Dr Miller noted that the plaintiff walked with the assistance of a walking stick and all movements of his neck were restricted. There was close to a full range of movement of the plaintiff’s shoulders, elbows and wrists and there was patchy reduction of sensation in the left upper limb. There was some slight tenderness of the lower back and restriction of back movements. Straight leg raising was restricted to thirty degrees bilaterally.

155       Dr Miller noted the plaintiff’s clinical examination revealed a slight disability of the back, neck and left knee due to local discomfort and limitation of some movements.

156       In view of the plaintiff’s pre-existing medical conditions, Dr Miller believed the incident had aggravated the pre-existing conditions of the plaintiff’s back and left knee. He thought the plaintiff had now had sufficient time and treatment to recover from the aggravation and that his employment was no longer still materially contributing to the claimed injury.

157       In Dr Miller’s view, the plaintiff’s ongoing symptoms and clinical findings were attributable to the pre-existent condition. He believed the plaintiff’s current clinical condition could have manifested regardless of the incident.

158       Dr Miller thought the plaintiff was currently capable of working with restrictions avoiding lifting in excess of ten kilograms, avoiding extreme movements of his neck and back, avoiding frequent pushing or pulling activities, avoiding prolonged sitting, standing and walking, and also frequent climbing of steps.

159       Dr Shan, consultant psychiatrist, examined the plaintiff on 28 July 2008. On examination, Dr Shan thought the plaintiff seemed mildly depressed and mildly anxious. The plaintiff said he did not have flashbacks but he had dreams and nightmares with themes of the incident. He was fearful in public places, became anxious and felt unsociable. In Dr Shan’s view, the plaintiff’s insight and judgment were normal.

160       Dr Shan concluded the plaintiff warranted a diagnosis of Major Depressive Disorder and a mild PTSD. He considered the prognosis was that the plaintiff’s condition in the longer term may resolve, perhaps when all litigation was finalised. He thought in the short term the plaintiff was likely to need continuing support from a psychologist and the use of medications.

161       Dr Shan considered the conditions had developed as a consequence of, or secondary to, the physical injury. He considered the plaintiff’s condition had been caused by the incident, noting there was no available evidence to indicate the plaintiff was under psychiatric or psychological treatment leading up to the incident.

162       Dr Shan considered the plaintiff’s psychiatric condition led to a permanent incapacity for his pre-injury employment as a crowd controller. From a psychiatric point of view, he thought the plaintiff was capable of other work, such as a gatekeeper.

163       It was Dr Shan’s impression that the plaintiff had a tendency to emphasize symptoms but there was no evidence available to indicate the history the plaintiff gave was not consistent with the actuality.

164       On re-examination on 31 March 2009, the plaintiff reported that there had been no particular development since the last examination and he told Dr Shan that he did not feel much better.

165       Dr Shan came to a similar diagnosis as on the earlier examination, however, he considered that further psychiatric treatment was no longer required. He thought antidepressants, if needed, could now be prescribed by the plaintiff’s general practitioner, and that psychological counselling may be continued for another year but if there was no change, that treatment could be discontinued as well. He confirmed his earlier view as to the plaintiff’s capacity for employment. He thought the prognosis was that the plaintiff’s condition, in the longer term when all litigation was finalised, was likely to resolve.

Summary of Clinical Notes

166       The plaintiff first attended Dr Venes on 1 March 2004. The plaintiff gave a history of acute low back pain and a past history of laminectomy at L4-5 which normally settled on one injection of Pethidine – 100 milligrams – and Maxillon. MS Contin was prescribed.

167       There was no reference to any back complaint made by the plaintiff on examination on 21 April, 26 April 2004 and 3 May 2004.

168       The plaintiff presented on 11 June 2004 complaining of back and neck pain after having been assaulted in the incident. He also complained of a sore right ankle and bruising and swelling over the anterior aspect of the ankle. He was prescribed Tramal.

169       On 15 June 2004, the plaintiff presented complaining of severe back pain and reported that he had not been able to take Tramal as it made him sick.

170       On 25 June 2004, the plaintiff complained he was still having neck and back pain and felt he could not go to work. He was given a certificate for two weeks. A CT scan was requested.

171       On 22 July 2004, it was noted that the plaintiff’s back was still very sore and he had pains radiating down his right leg. Also, there was pain in the cervical spine radiating to the left shoulder. The plaintiff was having trouble sleeping and PTSD. He was advised to see a counsellor. He was still working at the abattoirs as gatekeeper but he was unfit for crowd control. He was given a certificate for two weeks.

172       On 3 August 2004, it was noted that the plaintiff was “getting quite wound up in job as he tried hard to get work and now, since the bashing, in considerable trouble and the police not taking any action.” The plaintiff was then to trial Ducene and Zoloft.

173       On 12 August 2004, Dr Venes noted that MS Contin was added to the plaintiff’s medication regime. The plaintiff was referred for a CT scan of the spine as he was still getting pain after the assault. The plaintiff was referred to Dr Varma for assessment of loss of confidence and inability to control anger, “as his wife was now copping it”. The plaintiff was given a certificate for a month off.

174       On 20 August 2004, Dr Venes had a discussion with the plaintiff about a certificate and the future. It was noted that the plaintiff had reached the conclusion he should not work in crowd control.

175       On 8 September 2004, the plaintiff gave a history of falling at the abattoirs that day, slipping on the wet floor. It was noted his backache flared up and he had pain in the neck and left shoulder, shoulder movements – there was some restriction of abduction, the left trapezius was tender, there was muscular pain and aggravation of backache. A WorkCover certificate for three days off was given. Naprosyn was ceased and the plaintiff was prescribed Mobic and MS Contin.

176       On 10 September 2004, the plaintiff was given a certificate to the next week for the abattoir and one month for the hotel, and it was noted “he seemed to be accepting more his limitations”.

177       On 13 September 2004, MS Contin was prescribed. On 8 October 2004, the plaintiff complained of pain in the left side of his chest and that he was worried about cancer because of his family history. It was noted there were also a lot of stresses still and that he had been put on Avanza.

178       There were four further consultations during 2004. The plaintiff complained of spasms in the right side of his back on 14 October and Feldene replaced Mobic in his medication regime. On 18 October, MS Contin was prescribed. On 19 October, the plaintiff was given a certificate for total disability from 18 October until 16 November. The plaintiff attended on 9 November but there are no further details of this examination.

179       The plaintiff next attended on 15 September 2005 when Panadeine Forte was prescribed. On 10 October 2005, the plaintiff’s complaints related to his knee problems following surgery and the presence of a lump on his right thigh was noted.

180       On 18 October 2005, the plaintiff complained of migraine headaches. The myosarcoma was diagnosed that day. On 19 October 2005, it was noted that the plaintiff was devastated by the diagnosis. He was anxious and not sleeping.

181       Over the following months MS Contin continued to be prescribed. There was no specific mention of back complaints.

182       On 11 October 2006, it was noted the plaintiff was not sleeping well. There was stress at home and marriage trouble. His daughter wanted to leave home and there was a pending court case. On 23 November 2006, it was noted that the plaintiff was stressed with his daughter leaving and his wife was very upset.

183       In late June 2007, the plaintiff reported suffering injury to his neck, back and shoulders in the assault. On 9 July 2007 Dr Pope reported the plaintiff hyperventilating and having a panic attack. On 4 September 2007, it was noted the plaintiff was going to Melbourne Clinic next week and the whole family was stressed with the assault.

184       On 9 November 2007, there was mention of the plaintiff’s further knee surgery planned for the following week.

Investigations

185       On 27 March 1997, a CT scan of the lumbar spine was carried out which showed a protrusion at L5-S1.

186       An MRI scan of the lumbar spine of 15 May 1997 showed right posterolateral herniation of the L5-S1 intervertebral disc with disc fragment appearing to impinge upon the right S1 nerve root.

Findings

187       This was a very complex case involving a significant pre injury back condition, a supervening event at work in September 2004 and an unrelated knee condition, in addition to the impairments claimed.

188       Firstly, I do not propose to deal with the claim in relation to the cervical spine in any detail. Although the claim was not withdrawn by counsel for the plaintiff, no submissions were made.

189       Whilst it was conceded by counsel for the defendants that the plaintiff may have injured his neck in the incident, neck pain from that time has not been a significant complaint. No pathology has been identified and the plaintiff has had no particular treatment or medication in relation to his neck. Apart from early entries in the general practitioner’s notes, neck pain does not feature in his notes and no radiology has been directed to it.

190       Whilst the plaintiff has complained of headaches since the incident, he had suffered headaches prior thereto. He ultimately agreed that there really had no been much change in the nature or frequency of his headaches since the incident. In any event, there was no medical evidence linking headaches to the cervical spine.

191       I am not satisfied, in these circumstances, that the plaintiff has a serious injury in relation to his cervical spine.

192       I find that the plaintiff suffered a compensable injury to his lumbar spine in the incident. I accept that there has been an aggravation of his pre existing lumbar disc degeneration.

193       In this case, where there is a pre-existing back condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the 2004 incident is serious and permanent.

194       In Petkovski v Galletti [1994] 1 VR 436, the Full Court of the Victorian Supreme Court accepted the proposition that –

“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”

195       In both Angelatos v Museum of Victoria [1999] 3 VR 157, at 162-163 and at 168, and in RJ Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386, per Chernov JA at para 40, the Court of Appeal accepted that the principles in Petkovski v Galletti (supra) applied equally to serious injury applications under the Act.

196       In accordance with the principles in Grech v Orica Australia Pty Ltd and Anor (2006) 14 VR 602, provided the plaintiff establishes that the subject compensable injury in 2004 materially contributes to his impairment and its consequences, and will continue to do so permanently, the role of other injuries does not preclude a court concluding that there is the appropriate causal link between the compensable injury and the consequences relied upon.

197       Whichever approach is followed, the plaintiff, to reach the threshold of serious injury, is required to establish that the aggravation from the 2004 incident is permanent at the time of the hearing in its effects on the lower spine and the effects of the aggravation must be serious: Barwon Spinners Pty Ltd v Podolak (supra).

198       It must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, as at the date of the hearing, as being more than significant or marked, and as being at least very considerable.

199       The term “serious” requires the impairment and its consequences to be viewed objectively and also judged on an external comparative basis against possible impairments not necessarily in the same category: see Humphries v Poljak [1992] 2 VR 129, at 170, and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441: see in particular Chernov JA, at paragraph 29.

200       In addition to being “serious” the impairment must be permanent, in that it is likely to last into the foreseeable future.

201       Whilst in the four months before the incident there been no mention by the plaintiff to Dr Venes of back pain, for years prior to the said date the plaintiff was taking MS Contin, 15 milligrams daily, and monthly he was having a Pethidine injection. To require this level of medication his back pain must have been more than a twinge as he described. He agreed that prior to the incident his back movement was limited.

202       In his affidavit the plaintiff described his job at the abattoir as a static one, simply attending the boom gate, doing some paperwork and acting as first aid officer.

203       Following the incident the plaintiff was able to return to normal duties requiring no time off until he was involved in a fall at work on 8 September 2004. The plaintiff ultimately agreed that after the fall he ended up having more problems with his back, it started flaring up and he was having leg problems.

204       The plaintiff was not certified unfit for work at the abattoir until after this fall. Further, it was not until October 2004, one month after the fall, that Dr Venes considered the plaintiff was unfit for his work because of what he described as “his condition” – namely his back, neck and shoulders.

205       In his viva voce evidence, the plaintiff described more onerous duties at the abattoir. If his duties were in fact more onerous and not as “static” as he initially described and involved being on his feet all day, he was able to carry out these duties without time off or restriction until the September fall.

206       It is difficult to make any definite finding as to the impact of the fall on the plaintiff’s back condition as it was not mentioned by the plaintiff in his affidavits nor was it mentioned by Dr Venes in his various medical reports. The fall was only mentioned in Dr Venes note on 8 September 2004.

207       I am mindful of what was said by the Court of Appeal in Dordev v Cowan [2006] VSCA 254 in relation to the plaintiff’s credit in this type of case. As Chernov JA said at para 14 of his judgment, a plaintiff’s credibility is relevant not only to whether his evidence should be accepted but it is also relevant to the reliability of the medical evidence because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.

208       Both Dr Capes and Mr Schofield, upon whose opinion the plaintiff relied, were given inaccurate and incomplete histories by the plaintiff.

209       The plaintiff told Dr Capes that he attended Dr Venes in a wheelchair in October 2004. This attendance was after the fall and was not mentioned by Dr Venes in his notes nor did the plaintiff tell Dr Capes of the September fall. Dr Capes was also given a history by the plaintiff that he needed injections after the incident to keep him at work. Again, there is no record of such injections in Dr Venes’ notes. Having accepted this history, Dr Capes concluded that the plaintiff’s prognosis for his neck and back was poor and that he had no capacity for work after the incident.

210       Dr Capes also relied on a history that the plaintiff was basically pain-free in his back before the incident. Dr Capes seems to have accepted that MS Contin was first prescribed after the incident and he accepted that the plaintiff had no significant back or knee pain before the incident.

211       Whilst Dr Capes considered the plaintiff had no capacity for work, he based his view on the history given, and also taking into account the plaintiff’s back, neck and knee problems in total, not addressing the back condition in isolation.

212       Similarly, the plaintiff told Mr Schofield of the laminectomy but did not tell him he was still taking MS Contin at the time of the incident. He told him that he had a mild twinge of back pain from time to time. He did not tell Mr Schofield about the 2004 fall.

213       On the evidence available, I am unable to identify and isolate the consequences of the incident from those flowing from the plaintiff’s pre existing back condition which was of some magnitude and the later fall in September after which he ceased work at the abattoir. I am not persuaded that overall there has been an identifiable increase in the plaintiff’s level of back pain and restriction as a consequence of the incident which meets the test of seriousness.

214       I am not satisfied that the incident materially contributes to the plaintiff’s present condition.

215       Whilst the plaintiff has undergone treatment for his back following the incident and the fall, I am not satisfied that he had to stop work at the abattoir because of the injury suffered to his back in the incident nor am I satisfied that there are other consequences of that incident which are serious.

216       Further, the plaintiff has had little specialist treatment for his back since the incident and those who have treated him on a limited basis are not of great assistance to his application and have made findings of a non organic basis of the plaintiff’s presentation which I must disregard in this paragraph (a) case.

217       In 2005, Mr Kierce diagnosed abnormal pain behaviour, noticing a marked discrepancy between the plaintiff’s level of movement on formal and informal examination, making Mr Kierce very cautious about ordering any interventional treatment. Mr Kierce did not express any view that the plaintiff was incapacitated or restricted from working at that time because of his back condition.

218       Whilst he diagnosed symptomatic spondylosis of the lumbar and cervical spine in October 2005, Dr Thomas thought that the combination of physical and emotional injuries that the plaintiff sustained added up to a marked disability.

219       Dr Pope, in March 2008, diagnosed ongoing chronic neck and back pain with the development of a chronic pain syndrome. He thought the plaintiff had little work potential because of these conditions together with his knee problem and his psychiatric state.

220       Further, medico-legal examiner, Mr Miller, thought that in January 2008 the plaintiff now had had sufficient time to recover from the aggravation suffered in the incident and that the incident no longer materially contributed to the claimed injury to his back and that the findings were attributable to his pre incident condition.

221       Taking into account these matters, and the fact that most of the support for the plaintiff’s claim is based on inaccurate and incomplete histories, I am not satisfied that the plaintiff has suffered a serous permanent impairment to his lumbar spine in the incident.

222       Accordingly, I dismiss the plaintiff’s application for leave to bring proceedings in relation to his lumbar spine.

Psychiatric Claim

223       I accept, as was conceded by counsel for the defendants, that as a result of the incident, the plaintiff has suffered a compensable psychiatric condition described as both PTSD and a depressive illness.

224       Whilst conceding the existence of this compensable injury and that it was the best part of the plaintiff’s claim, it was submitted on the defendants’ behalf that it was not severe.

225       Although it was submitted the plaintiff had a propensity for suffering depression, it was conceded there was no evidence that this was impacting on him on the said date nor that he was receiving any treatment prior to the incident.

226       I therefore am not required to treat the plaintiff’s psychiatric claim as an aggravation.

227       The judgment of the Court of Appeal in Mobilio v Balliotis [1998] 3 VR 833 resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission (1995) 21 MVR 314, that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, His Honour said that “severe” was used in the definition as a stronger word than “serious”.

228       Winneke P, in Mobilio, agreed with Brooking JA’s reasons, and further agreed with him that the word “severe”, where used in sub-paragraph (c) of sub-s.(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)

229       After the incident, the plaintiff was able to continue working at the abattoir until his condition worsened following the fall in September. Around that time he also had a cancer scare, as noted by Dr Venes on 8 October 2004.

230       Save for what seems to have been one visit to a psychiatrist, Dr Varma, in September 2004, from whom no evidence is available, it was not until May 2007 that another referral was made to a psychiatrist, Dr Leahey. In the meantime, from 2005, the plaintiff received psychological counselling from Ms Murphy.

231       The referral to Dr Leahey came at a time after the plaintiff was experiencing significant problems at home. In late 2006, the plaintiff complained to Dr Venes of lots of stress at home with his daughter leaving and that his wife was very upset. The plaintiff was advised to take an antidepressant but he preferred to take St John’s Wort.

232       Having first assessed the plaintiff in June 2007, Dr Leahey expected that six further visits over three months would be sufficient, although he noted some small extension might be requested at the end of this period although he hoped that such would not be required.

233       In the first month of treatment in May 2007, Dr Leahey noted the plaintiff was making slow improvement. This situation changed when the plaintiff was assaulted in late June 2007 which, in Dr Leahey’s view, led to a considerable relapse of the plaintiff’s depression with associated problems at home because of the plaintiff’s intake of medication and harassment by his assailants The plaintiff then became essentially non-compliant.

234       I accept that the 2007 assault led to the admission to the Melbourne Clinic and that the need for this hospitalisation was triggered by non-incident related factors. Further, the first panic attack noted by Dr Venes was on 9 July 2007, after the assault.

235       The examinations by Dr Senadipathy and Dr Stern are now over three years’ old and I place little weight on them given the events that have occurred in the plaintiff’s life since that time, particularly the 2007 assault and the fact that the plaintiff is now compliant with his medication.

236       As psychologist, Ms Murphy, last reported in February 2008, her opinion is obviously outdated. She did, however, consider that the plaintiff suffered a severe emotional response to the 2007 assault. Significantly in that report, she did not address the issue of non-compliance in terms of the plaintiff’s prognosis.

237       Dr Epstein, upon whom the plaintiff relied, was not given a history of the 2007 assault, nor was he provided with any reports from Dr Leahey. Dr Epstein simply noted that in October 2007, Dr Leahey became concerned the plaintiff was suicidal and he was admitted to the Melbourne Clinic for ten days. There was no mention by Dr Epstein of issues of the plaintiff’s compliance or otherwise, with medication. Further, this report is now almost one year old.

238       Dr Shan, who was provided with Dr Leahey’s reports, did not comment upon the effect of the 2007 assault on the plaintiff’s psychiatric condition. He did not mention compliance issues and in his view the plaintiff’s condition was likely to resolve once litigation was finalised.

239       Whilst the plaintiff was not challenged to any great extent as to his various psychiatric complaints, including panic attacks, fear of going out and loss of libido, and these complaints had been noted by Ms Murphy, I do not accept that they are consequences which are severe.

240       The plaintiff can still go out, drive a car and does the shopping, although he is clearly restricted in these matters compared to a healthy person. As Dr Leahey noted in recent months, the plaintiff has begun to get out of the house more, going for short walks or accompanying his wife to the shops. In his view, this was likely to have contributed to a recent improvement in the plaintiff’s mental state giving him less time to ruminate.

241       Dr Leahey did not consider the plaintiff totally incapacitated for employment and in fact believed it would be of benefit if the plaintiff was encouraged to seek appropriate work outside the home. It would be surprising for Dr Leahey to make this suggestion if the plaintiff had the level of PTSD symptoms the plaintiff has described.

242       In Dr Leahey’s view, the plaintiff would certainly be able to return to some part time work that made allowances for his physical and psychiatric issues. Dr Leahey thought if the plaintiff obtained work it would benefit his mental state as it would allow him to regain some role in the community and ameliorate much of the pressure at home.

243       Whilst Dr Leahey thought the plaintiff remained significantly depressed in February, he expressed that opinion at a time when he still had concerns about the plaintiff’s non compliance – a situation the plaintiff says no longer exists. At the time of the February examination, Dr Leahey thought that without full compliance and subsequent dosage optimisation, the plaintiff was unlikely to improve significantly. There is no evidence from Dr Leahey as to the plaintiff’s present condition when he is taking the mediation prescribed.

244       Whilst he was upset at times in the witness box, I accept that the plaintiff did not present as a person with problems with memory and concentration. He could understand questions and answer them clearly and in detail.

245       Taking into account all the evidence, I am not satisfied the plaintiff’s psychiatric impairment relating to the incident is severe and permanent.

Loss of Earning Capacity

246       As the plaintiff has not satisfied the narrative requirements in relation to his application pursuant to both subsections (a) and (c), I am not required to consider his claim for loss of earning capacity.

247       I am not required to determine the issue raised by counsel for the defendants that the plaintiff’s knee condition, unrelated to the incident, has resulted in a total incapacity for employment and an inability to return to his old jobs – a situation which was ultimately accepted by the plaintiff.

248       Accordingly, the plaintiff’s claim for loss of earning capacity is also dismissed.

- - -