Ballis, Phillip v D P World Australia Limited
[2009] VCC 1454
•31 August 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES – COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-04308
| PHILLIP BALLIS | Plaintiff |
| v | |
| D P WORLD AUSTRALIA LIMITED | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11, 12 and 13 August 2009 |
| DATE OF JUDGMENT: | 31 August 2009 |
| CASE MAY BE CITED AS: | Ballis, Phillip v D P World Australia Limited |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1454 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – cervical spine – psychological impairment – pain and suffering only – whether consequences to the plaintiff are serious.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J R Moore QC with | Holding Redlich |
| Mr M T Schulze | ||
| For the Defendant | Mr P D Elliott QC with | Herbert Geer |
| Ms R J Boyce | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant on 14 December 2004 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
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” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The plaintiff also brings this application pursuant to clause (c) of the definition of serious injury claiming permanent severe mental or permanent severe behavioural disturbance or disorder.
5 The impairments of body function relied upon in this case are therefore the cervical spine and psychiatric impairment.
6 The plaintiff relied upon two affidavits sworn by him and he was cross examined. The plaintiff also relied on an affidavit of Michael Paydon, manager of Able Carpet Care, sworn on 17 July 2009.
7 Further, the plaintiff’s treating general practitioner, Dr Gamboni, and treating psychologist, Ms Magnusson, were required to attend for cross examination. In addition, both parties relied on medical reports and other medical 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;
(iv) By subsection (38)(c) of the Act, the impairment 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, 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) Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(vii) 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
8 The plaintiff is aged fifty seven, having been born on 19 March 1952. He completed Year 11 in about 1969, and thereafter worked as a butcher’s shop assistant, a customs clerk, a boxer, a football coach and, more recently, a carpet cleaner and a painter and docker.
9 The plaintiff deposed he began part time work for Able Carpet Cleaning in 1992 and gained employment as a stevedore for the defendant, working on a casual basis in December 1999.
10 In 1970, the plaintiff first married and there are two children of that marriage. He separated from his first wife in about 1980 and divorced in 1982. The plaintiff remarried in 1984 and stayed with his second wife until separating in 2001. There is one child of that marriage.
11 When the plaintiff separated from his second wife, he experienced some stress and anxiety over the separation but recovered from it with some help from his general practitioner and the prescription of medication to help him sleep.
12 The plaintiff entered a third significant relationship the following year and was living with his partner, Veronica, on the said date. A further daughter was born in 2006.
13 The plaintiff deposed that prior to the said date he considered himself to be quite fit and healthy and had not suffered any significant or long lasting health problems, apart from a burst gastric ulcer, for which he was hospitalised in about 1991, and a burst appendix in 2004.
14 The plaintiff suffered injury to his left shoulder in or about 1990 when he fell at work and he experienced some headaches and neck pain as a result of that fall. He believed his left shoulder was hydrodilated in late 1991 and he had a cortisone injection and also some physiotherapy. In cross examination, the plaintiff said he had physio therapy treatment from Mr Ross for his neck and shoulder at that time.
15 The plaintiff suffered some neck pain and headaches after being assaulted in 1992. In about 1997, the plaintiff experienced tennis elbow pain.
16 The plaintiff injured his knee, which one he was not sure, in a minor car accident in about 1995.
17 None of these problems that the plaintiff experienced affected his ability to work long term or lead a physically active life.
18 The plaintiff deposed in the years leading up to the said date, apart from his appendix surgery, he was fit and healthy to work in the physically demanding employment on the wharves. He also worked on a part time basis cleaning carpets.
19 In cross examination, the plaintiff said that he had not worked as a carpet cleaner in the six to eight months prior to the said date and he had no wage records relating to his work in that job prior to the incident.
20 The plaintiff gave evidence that in the twelve months prior to the said date he had no problems with his neck or left shoulder and he had not suffered from panic attacks.
21 He mentioned that he had been diagnosed with hepatitis in 2000. When he first had the condition “it really stopped him in his tracks” but over the years it still affected him but he got over it. He got over it 100 per cent by about 2003. It made him feel tired.
22 The plaintiff agreed that he had marital problems in March 2001 leading to an attendance at Epworth Hospital following an overdose of medication. A care plan was prepared by his doctor at that time but he could not recall seeing a psychiatrist as part of that plan.
23 In cross examination, the plaintiff agreed he had suffered anxiety and panic disorders before the incident. He attended Dr Gamboni on 27 November 2001 for such an attack. He had been prescribed Temazepam since 1999 to help him sleep because of his ulcer problem.
24 The plaintiff agreed he told Ms Magnusson that he was working full time at the time of the incident and that prior thereto he had had no illnesses. He did not tell her he had hepatitis as he was embarrassed.
25 Prior to the incident, the plaintiff was very involved in sport. In the early 1970s, he played a couple of matches for Richmond VFL Reserves. He also boxed professionally from 1970 to 1973, a sport he enjoyed very much and retired from, because he was too busy with work, rather than suffering any serious injury.
26 Subsequently, in about the mid 1980s, the plaintiff began coaching football and coached virtually continuously for the next twenty years, many of those at a senior level, up until 2004.
27 He enjoyed golf, which he played regularly, and also he was busy with friends and family, especially his children and grandchildren.
28 In the year before the incident, the plaintiff was running ten to twenty kilometres a week, usually running three to four kilometres a day. He was pretty fit and had worked hard because of what happened to him previously.
29 On the said date, the plaintiff was working at Appleton Dock in Port Melbourne when a bottle screw that became loose from a job being done on a ship deck above him bounced off the stairway and struck him under his jaw. The plaintiff was knocked unconscious and then down some stairs onto the deck below (“the incident”).
30 As a result of the incident, the plaintiff suffered injury to his head with an associated loss of consciousness, a laceration to the left side of his face near his mouth, injuries to his jaw, bottom teeth, broken dentures, as well as an injury to his neck. He also suffered psychiatric injuries as a result of the incident.
31 Shortly after the incident, the plaintiff was taken by ambulance to the Royal Melbourne Hospital, at which time he was suffering a great deal of head, jaw, face and neck pain. His injuries were assessed. His lacerations were sutured, x-rays were taken and he was discharged later that evening and certified unfit for work.
32 After approximately one week’s rest the plaintiff consulted his general practitioner, Dr Gamboni. At that time the plaintiff was still suffering headaches, neck pain and nausea, and was also very tired. Dr Gamboni prescribed medication and referred the plaintiff to a chiropractor.
33 The plaintiff continued under Dr Gamboni’s care, and over the Christmas period his condition failed to improve. In addition to his physical pain, the plaintiff experienced panic attacks, bad dreams and nightmares, and was anxious, stressed and depressed. He was also suffering dizzy spells.
34 As a result of these problems, Dr Gamboni referred the plaintiff to Ms Magnusson, a clinical psychologist. Dr Gamboni also prescribed some Temazepam to help the plaintiff sleep.
35 As of February 2005, the plaintiff was still suffering headaches and neck pain, as well as dizzy spells. He tried to coach a junior football team but with only limited success.
36 By April 2005, his condition had got to the point where Dr Gamboni referred the plaintiff to Dr Kranz, a neurologist, who treated him later that month, and an anti-depressant, Tolvon, was prescribed.
37 The plaintiff deposed that over the next few months he got to the stage, physically, where his doctor certified him fit for alternative duties in late August 2005. The restrictions at work included no lifting of weights in excess of five kilograms.
38 The plaintiff was able to return to work in early September cleaning carpets on a part time basis. However, his neck pain as well as headaches persisted, especially if he overdid it at work.
39 In October 2005, a return to work plan was suggested with the defendant. However, because of his psychological condition the plaintiff was not able to get back to wharf work. He was still experiencing panic attacks and his sleep was disturbed by bad dreams and nightmares. He was anxious, particularly when he thought about returning to the scene of his injury, and felt it was too unsafe to work there. He also remained quite depressed.
40 During 2006, the plaintiff continued to have physiotherapy and chiropractic treatment and also attended Ms Magnusson, but his psychological condition failed to improve. It affected his relationship with his partner to the point where they separated under one roof in late 2006, until the plaintiff moved in with his adult daughter in early 2008.
41 The plaintiff was put on a Disability Pension in October 2007, having received weekly payments of compensation until about 2006.
42 Since the incident the plaintiff has continued to suffer constant neck pain and stiffness, varying in intensity with good and bad days. The pain radiates up to his head, particularly at the back of the head. He suffers consequent daily headaches, which can be severe and disabling, and his neck pain also radiates down to his shoulders and into his spine between his shoulder blades. Occasionally he suffers pins and needles in his hands, in the right more than the left.
43 Such pain and headaches are aggravated most often by work and the use of his arms above shoulder height. Lifting, pushing and pulling movements especially aggravate the pain; however it can flare up, as can the headaches, for no apparent reason.
44 The plaintiff can stand for two to three hours if he has to but he gets tired after an hour. He cannot sit for long and he has to get up and move around.
45 Further, as a result of the incident the plaintiff has continued to suffer pain and stiffness in his lower back, as well as pain across the top of his hips. This pain is generally aggravated by prolonged periods of standing or sitting, as well as various movements such as bending, twisting and lifting. While it is not as severe as his upper spine pain, it continues to be quite troublesome on occasions and varies in intensity and is always present to some degree.
46 The plaintiff takes Panadeine Forte and Panadol for pain and Temazepam to help him sleep. The plaintiff tried taking antidepressants again in about February or March 2009 but ceased because of the side effects and has recently resumed taking this medication in the last month or six weeks. He also takes Somac to help protect his stomach from the other medication
47 When asked why he was getting certificates relating to his liver condition until 2006, the plaintiff said he felt unwell and did not know whether it was coming from hepatitis or what. When asked what other things it could have been that was making him feel unwell, he said he “supposed it could be just normal life”. He could not say whether his present fatigue was related to hepatitis or his neck injury.
48 The plaintiff continues under the care of Dr Gamboni and has massage on a regular basis. He sees Ms Magnusson approximately once a fortnight, if necessary, more often.
49 The plaintiff continues to suffer psychiatric problems relating to the incident, having panic attacks and his sleep has been disturbed by bad dreams and nightmares. He is anxious and depressed, particularly when he thinks about the incident, and is depressed and teary and continues to suffer fatigue. He has lost a lot of weight since the incident and also lost interest in socialising.
50 His memory, especially short term, has been much worse since the incident, and he has continued to have difficulty maintaining concentration. He does not watch as much television now and sometimes he has trouble following the plot of a movie and he also has to re-read passages of a book or newspaper to take in information.
51 If the plaintiff has to concentrate on one thing for any length of time it makes his head ache and causes neck ache or his neck ache causes his headache.
52 The plaintiff is miserable about his physical capacity lost as a result of the incident and worried about his future financial prospects. He has also become quite short tempered since the incident with minor or trivial things upsetting him.
53 He remains fearful about returning to work at the wharves which he considers a very unsafe place to work. He believes that if he was physically able to go back to work then he would not survive because something disastrous would eventually happen to him.
54 Whilst the scars on his face have healed, they are still hard to ignore and serve as a reminder of the incident every time he looks at his face.
55 He explained he does not go to “to many functions anymore, parties or things like” that because he feels uncomfortable. He is able to coach the juniors and be animated with them because it is something he loves to do and “the children have to believe that he wants to be there with them”.
56 If anything, his condition has deteriorated in the last year.
57 Whilst in cross examination the plaintiff agreed he told the vocational assessor that he was withdrawn socially, he also agreed that he can go out, he has friends and he can socialise with them. When re examined, the plaintiff said that he does not go to too many functions or parties anymore.
58 When cross examined about the job offer with the defendant in 2005, the plaintiff said he would have asked his doctor about it and that he could not cope with standing and walking around the wharves all day four or five days a week or two days a week because of his neck and back.
59 The plaintiff deposed that since the incident he has only been able to get back to about ten to fifteen hours a week of carpet cleaning on average, income he declares to Centrelink, and the rest of his income is in the form of the Disability Pension.
60 The plaintiff believes that as a result of the incident he can no longer work full days and he is unable to work on consecutive days without an increase in pain. Most often he works only half days and if he works too much he generally pays for it later with an increase in pain.
61 His employer at Able Carpet Cleaning understands his difficulty and tries to space out his work and ensure he does not work consecutive days. The plaintiff believes that without this cooperation and understanding he would not be able to work.
62 Since May 2008, as a result of his injuries, the plaintiff has had to reduce his carpet cleaning work to about eight to ten hours a week but sometimes his condition is so bad he cannot work at all. The plaintiff declares any income from Centrelink and his Disability Pension is adjusted accordingly.
63 The plaintiff confirmed in cross examination that his income was as follows:
Financial Year Gross Amount DSS Component 2001 – 2002 $11,948 $7,151 2002 – 2003 $11,036 $8,516 2003 – 2004 $17,044 $4,918 2004 – 2005 $15,633 Nil 2005 – 2006 $13,333 $8,780 2006 – 2007 $23,061 $8,122 2007 – 2008 $2,739 $2,739
64 A printout of the plaintiff’s wage details from 17 December 2003 until 14 December 2004 was tendered. In the period 8 December to 12 December 2004, he worked thirty two hours; from 25 July to 30 July 2004, thirty nine hours; from 16 to 23 April 2004, thirty two hours; from 9 to 16 March 2004, forty eight hours; and from 18 February to 20 February, twenty eight hours.
65 In addition to problems with work, since the incident the plaintiff has remained restricted in his domestic, social and recreational activities. He has tried to get back to jogging but it is usually too painful and he is generally limited to walking for exercise. He struggles with the heavier chores around the house.
66 The plaintiff deposed that prior to the incident he enjoyed a busy, fulfilling and happy existence and considered himself to be reasonably fit and healthy. Since then the majority of his days are spent trying to cope with constant pain. His personal life has been ruined as a result of the incident, as has his work capacity and independence. He remains depressed and anxious and considers his future bleak.
67 In cross examination, the plaintiff’s evidence as to the level at which he was coaching football in 2004 was somewhat unclear. Initially he said he coached seniors at St Kilda from 1998 to 2001 and he then coached Richmond juniors until the year of the incident. He then said that in 2004 he coached the seniors at Glen Eira/ Glen Iris.
68 In the season after the incident the plaintiff coached juniors at Richmond. The plaintiff was then approached to coach and assist in reforming the South Yarra Club. He coached there for the 2007 season and was paid $200 per game. The team did not win a game for the season. There was no specific arrangement about the level of the plaintiff’s hands on involvement but he could not do much physically or run around with the players. The plaintiff left the Club by mutual agreement.
69 The plaintiff then applied for and was successful in obtaining a senior coaching job with the Heidelberg Hawks. He was paid $2,000 to coach the team in the 2008 season. He tried to pass off the more physical tasks to others as he could not manage.
70 The plaintiff found the physical demands of senior coaching too much and consequently in 2009 he only coaches a Richmond under 13 team. Coaching juniors involves only two days a week and very short hours. The team has been quite successful and is in the finals.
71 In contrast to his coaching style before the incident, the plaintiff has since that time been generally limited to a “hands off” style of coaching. Prior to the incident, he was able to get out at training and push the players a bit.
Lay Evidence
72 Michael Paydon, manager of Able Carpets, swore an affidavit on 17 July 2009. He deposed that the plaintiff has been employed in that business for the last thirteen to fourteen years.
73 Mr Paydon always found the plaintiff an honest and good worker but he had definitely noticed a change in him since the incident. Thereafter, the plaintiff has had a diminished capacity for work and Mr Paydon has had to adjust the work given to him to accommodate his condition.
74 Prior to the incident, the plaintiff worked Monday to Sunday but now Mr Paydon does not give the plaintiff any work on Wednesdays or weekends and gives him a half a day on Tuesdays. The plaintiff’s work on Thursdays and Fridays varies between four and eight hours. Mr Paydon tries to avoid giving the plaintiff work for a full eight hour day as he knows it takes a lot out of him. The plaintiff used to work nights but is not able to do so anymore.
75 The plaintiff was one of the fittest men he knew and he had lost his physical capacity and mental tolerance to the point where sometimes the plaintiff even found it hard to fax paperwork.
76 There is plenty of work available and he could give the plaintiff four days of work during winter and six days during summer. He no longer gives the plaintiff any work involving carrying equipment up to the third floor of a building, and if the plaintiff has to carry equipment to a second floor he only gives him one such job a day.
77 When the plaintiff returned to work after the incident, WorkCover came out and assisted in the modification of the plaintiff’s van to have a ramp installed so he could get his equipment in and out.
78 The plaintiff is now given a maximum of four jobs per day with maximum hours of 8.00 am to 4.00 pm, but if he was fully fit there would be five or six jobs available.
79 The plaintiff’s job involves steam cleaning carpet, pulling on a wand attached to a hose, spraying chemicals onto carpet, using a polishing machine to work those chemicals into the carpet and occasionally doing some water damage cleaning on small jobs.
The Plaintiff’s Medical Evidence
80 Dr Gamboni has been the plaintiff’s general practitioner since 1990. He provided two brief reports and he attended for cross examination. Dr Gamboni’s clinical notes were also tendered.
81 In November 2006, he noted the plaintiff was complaining of neck pain and psychological symptoms. At that time the plaintiff had returned to doing steam cleaning but only for about fifteen hours per week and he had not returned to work at the docks because he felt it was too unsafe.
82 From the time of that early report until February 2009, the plaintiff continued to complain of neck and back pain and, in particular, ongoing anxiety and depression, for which he was taking Effexor at that time.
83 Dr Gamboni noted that it was now more than four years since the incident and he did not think the plaintiff would ever work full time again. He noted that the plaintiff was doing steam cleaning for eight to twelve hours a week and that was all he could manage. He also mentioned that the plaintiff used to coach a football team but noted the plaintiff advised him that he cannot do that as it is too much stress for him. In Dr Gamboni’s view, the plaintiff certainly could not work on the wharves as he is frightened as he almost died in the incident.
84 In examination in chief, Dr Gamboni confirmed he left the management of the plaintiff’s psychological state to Ms Magnusson. He confirmed Temazepam was a sleeping tablet that he had prescribed for the plaintiff before the accident, together with Euhypnos, which was also another part of the Temazepam group.
85 Although he had referred the plaintiff to Dr Colin Scott, psychiatrist, as part of the Care Plan in November 2001, he could not recall whether the plaintiff actually saw him. The plaintiff’s marriage problems settled after that time
86 Dr Gamboni confirmed that as of 10 August 2001, all the plaintiff’s liver function tests were back to normal. He confirmed his diagnosis of a soft tissue injury to the neck and noted that the plaintiff did not have any neck problems before the incident.
87 Dr Gamboni stated that the plaintiff is still very depressed and anxious and has a limited ability to do physical work and certainly does not want to go back to the docks because he is scared. He had not gleaned any sense of embellishment or overstating from the plaintiff.
88 Dr Gamboni gave evidence that he knew the plaintiff used to coach a football team but the plaintiff told him that this year he could not coach anymore as he just did not have the mental capacity - he was too stressed. Dr Gamboni explained that he had “seen somewhere” in the paper that the plaintiff was coaching juniors at present.
89 Dr Gamboni was cross examined about his reference in his February 2009 report to the plaintiff not being able to coach at all because of too much stress. Dr Gamboni confirmed he had recently become aware the plaintiff was coaching a junior team but he could not really remember and that the plaintiff had not really discussed football coaching with him recently.
90 Dr Gamboni said that the plaintiff told him he was not worried about the physical side of coaching and that it was the mental side of it because of the stress involved.
91 Dr Gamboni admitted that much of the effects of the plaintiff’s soft tissue injury had abated from the time of the incident. He could not recall and said he probably did not refer the plaintiff to an orthopaedic surgeon because there were no symptoms such as nerve impingement.
92 Dr Gamboni confirmed Temazepam was first prescribed in April 1999 when the plaintiff was going through a few hassles and breaking up with his wife. It was prescribed to help him sleep. Dr Gamboni confirmed that the plaintiff had been suffering anxiety at the time of the 2001 Care Plan. He agreed that the plaintiff’s personal life had not been “fair weather”. He confirmed that hepatitis was first diagnosed on 25 August 2000 and he sent the plaintiff to Dr Pritchard, a liver specialist.
93 Dr Gamboni was then cross examined about a number of entries in his notes where he provided DSS certificates for three-month periods on the following dates because of hepatitis - 28 March 2001, 4 February, 5 August and 19 November 2003, 19 May and 30 November 2004 and on the day prior to the incident, on 13 December 2004, he gave him a certificate up until 28 February 2005.
94 Dr Gamboni confirmed he had been certifying the plaintiff for incapacity for DSS up until the day before the incident and thereafter for a liver problem. Certification to this effect was given on 4 March, 9 July and 25 November 2005. On 17 October 2006, the certification was changed to: “DSS fit for 15 hours, head and neck pain”.
95 Dr Gamboni said he was not aware, nor could he recall that WorkCover benefits had ceased in 2006. He disagreed that with the cessation of benefits he would have changed his certification of the plaintiff to a neck and head injury for DSS rather than in relation to his liver.
96 Dr Gamboni explained he gave continuing certification based on the plaintiff’s liver condition although tests were normal because the plaintiff had other problems too and his liver was not the only reason he was giving him certificates. “But to keep it simple, I just wrote the same thing all of the time. A lot of it was the plaintiff’s anxiety problem.” Dr Gamboni explained it could take a while to get over hepatitis B.
97 In re examination, Dr Gamboni said if the plaintiff had not had hepatitis he would have been certifying him probably with respect more to his anxiety and other symptoms.
98 Such certification was not that the plaintiff could not work at all; it was just that he could only do so many hours. Dr Gamboni confirmed that if the plaintiff worked more than fifteen hours, his benefits would be affected.
99 Dr Gamboni prescribed the anti depressant, Tolvon, in April 2005. Effexor was started on 27 November 2007 and the plaintiff might have stopped taking it. On 7 July 2009, Endep was prescribed in a small dosage of ten milligrams which Dr Gamboni said helped certain types of chronic pain but it was not prescribed for antidepressant purposes in such a very small dose.
100 Dr Gamboni was then cross examined about a number of entries following 14 July 1990, on which date the plaintiff fell and hurt his left shoulder at work. Dr Gamboni confirmed he sent the plaintiff for x-rays to his neck and shoulder which revealed no fractures. He noted, as of 26 July 1990, the plaintiff’s headaches had improved and he was having his neck manipulated by Mr Ross, physiotherapist.
101 Dr Gamboni confirmed he referred the plaintiff to Dr Hall, a neurologist, having earlier referred him to Mr Hugh Weaver, an orthopaedic surgeon.
102 Dr Gamboni confirmed there was an entry of 26 October 1992 setting out the plaintiff’s neck was still sore, he was given a certificate and would see a physiotherapist. It was also noted the plaintiff was under a lot of stress.
103 Dr Gamboni stated the plaintiff did not have ongoing neck complaints after he was assaulted in November 1992. There were no more worker’s compensation certificates after 17 June 1993 provided by Dr Gamboni for any neck condition.
104 Dr Gamboni said the plaintiff had a history of back pain and there were three references thereto in his notes on 3 February 2005.
105 Dr Gamboni thought that the plaintiff’s present view is that he is only able to do a limited amount of steam cleaning. Dr Gamboni agreed that the plaintiff could find out if he could do more work if he attempted it. Dr Gamboni is providing no certification at present.
106 In response to a question whether the plaintiff could do desk work on the docks, Dr Gamboni said that there were certain types of injuries that desk workers get and that that problem would be taken away if a job as a shipping clerk involved walking around the wharves but he noted that the plaintiff might be too scared to do that. The full details of the 2005 job offer were put to Dr Gamboni, who said from a physical point of view the plaintiff would have been “okay for that”.
107 In re-examination, Dr Gamboni confirmed Mr Doig’s diagnosis of soft tissue injury. He confirmed it was consistent with the plaintiff’s problems that he would have difficulty standing up after two or three hours.
108 It did not appear from his notes that in the year leading up to December 2004, the plaintiff had any problems of concern with respect to his neck, shoulder, low back and/or mental state.
109 Ms Magnusson, psychologist, first reported in January 2007, having initially seen the plaintiff in January 2005. At that time she noted he was working approximately sixteen hours a week.
110 Whilst treated by her, the plaintiff has continued to complain of headaches, neck, back and shoulder pain, depression, anxiety, panic attacks, markedly diminished interest in previous activities, difficulties falling and remaining asleep, problems with memory, rapid weight loss and sexual difficulties.
111 In her view, the incident and its aftermath also directly contributed to the breakdown of the plaintiff’s marital relationship.
112 She noted the plaintiff reported neither serious illness nor any psychological difficulties prior to the incident. He told her that at the time of the incident he was working part time on the wharves as well as part time cleaning, performing approximately forty hours per week paid employment.
113 Ms Magnusson initially diagnosed an Adjustment Disorder with mixed anxiety and depression, and a pain disorder. She considered the plaintiff had sustained considerable loss of his level of function across the various domains of his life. Whilst she noted he had made determined efforts to recover his formal level of function, she thought it was apparent that what gains the plaintiff had made were diminishing and that he would require continued physical and emotional support to help him adjust to his changed circumstances. In her view, the plaintiff responded well to treatment, finding it supportive and instructive, and he reported to her it made him better able to manage his physical and emotional wellbeing.
114 When she most recently reported in April 2009, Ms Magnusson changed her diagnosis to include post-traumatic stress disorder. She confirmed the significant effect the incident had on the plaintiff’s life and his continuing need for and the benefit he obtained from psychological counselling.
115 In examination in chief, Ms Magnusson said that she had a special interest in post-traumatic stress disorder.
116 She confirmed that she was aware of the prescription of Temazepam and that the plaintiff experienced anxiety problems before he was referred to her.
117 When told of the plaintiff’s previous shoulder injury and also his attendance at Epworth Hospital in 2001, she said it made no difference to the opinion she had expressed.
118 She confirmed she knew the plaintiff was currently coaching a junior football team and that she actively encouraged him, if not urged him, to take up whatever level of interest in football he could. She noted that when the plaintiff was not engaged in football activities he was more depressed and less functional and it gave him a sense of purpose, identity and competence.
119 She recalled when the plaintiff returned to coaching senior football he had problems with anxiety. He told her after the first match he was driven home, laying prone in the back of the car, and went to bed and stayed there for several hours afterwards. He found it too stressful and had to change his coaching style.
120 She knew that the plaintiff was very well known in the Richmond area and was very popular. People were always talking to him about the football and asking him for his football tips. The plaintiff was not open about non organic problems to others. He had a sort of public persona but his was quite rigid and traditional.
121 In summary, she said prior to the incident the plaintiff was sort of “a lad around town” probably functioning better in terms of fitness. In terms of socialisation, perhaps he “had a way with the ladies”. He had managed to coach his football team, keep engaged with his children and work for a company since then and struggled to keep up with the hours. She concluded the plaintiff’s level of functioning post incident was vastly different. She thought he would be doing well if he did not lose further function and could return to about sixteen to twenty hours a week and coaching juniors. She thought that was about his future.
122 In cross examination, Ms Magnusson confirmed that the plaintiff had denied any history of previous psychiatric problems. She also confirmed he told her he was performing more than forty hours a week in paid employment at the time of the incident. She did not know anything about him having hepatitis. She was not aware of any certification being given by Dr Gamboni nor that he had certified the plaintiff fit to work for up to fifteen hours a week because of this condition. She could not remember if the plaintiff told her he was doing no cleaning work at all in the six to seven months before the incident.
123 Ms Magnusson denied such matters of history were vital and said they did not affect her view that the plaintiff cannot work much beyond what he is doing now.
124 She confirmed that she had completed a questionnaire for the Victorian WorkCover Authority in 2007 setting out her provisional diagnosis at that time of anxiety based depression, adjustment disorder and chronic pain. She agreed that the plaintiff was not housebound. She disagreed the plaintiff was highly likely to improve after litigation had finished.
125 Ms Magnusson agreed that in the questionnaire where she diagnosed a pain disorder, that the plaintiff had emotional and psychological effects of ongoing pain, in the sense that there was a psychological component.
126 At that time, she considered the plaintiff required support though upcoming legal proceedings plus ongoing support to improve the level of work to viable - approximately once per fortnight for the next six months.
127 Ms Magnusson agreed that post-traumatic stress disorder did not enter the diagnosis until later when she reviewed the case and went through what she called the diagnostic tree.
128 She disagreed that the plaintiff was to the lower end of a post-traumatic stress diagnosis or that his condition was mild. She explained that the plaintiff went out and did coaching because she urged him to and he made himself do it. She thought that the plaintiff’s work capacity was reduced and that he worked less than sixteen hours and that he worked in different places with less stairs.
129 Ms Magnusson confirmed her level of treatment increased briefly recently but since then it had been reducing. She thought the plaintiff was being prescribed Endep by Dr Gamboni as an antidepressant.
130 Even with what she conceded was an inaccurate history, Ms Magnusson had confidence in the objective complaints made by the plaintiff and it did not change her diagnostic opinion. She denied she was acting as an advocate for him. She confirmed that the plaintiff’s relationship ended as a result of the injury at the wharf and the sequelae thereto.
131 In re examination, she confirmed the plaintiff qualified for a diagnosis of post- traumatic stress disorder and that his pain was of a physical nature. She confirmed the plaintiff now goes out very little, if any. He attends what he considers absolutely obligatory in terms of family and social functions.
Medico-Legal Examinations
132 The plaintiff was examined for medico-legal purposes by orthopaedic surgeon, Mr Doig, in June 2009.
133 The plaintiff told him he was doing the wharf work and the steam cleaning job at the same time when he was injured. He went back to steam cleaning in early 2007 and now does that work for about eight hours a week and no more because of neck and back pain. He had not returned to the wharf work partly because of his psychological problems.
134 The plaintiff told Mr Doig that he continued to be sore in both the neck and back, both conditions were static and he was not having any further treatment.
135 On examination, Mr Doing found there was tenderness of the cervical spine and limitation of movement. There was one centimetre of left upper and lower arm wasting compared with the right. There were no focal neurological signs in the upper limbs. There were normal deep tendon reflexes and no wasting. There was also tenderness and restriction of movement of the lumbar spine and restricted straight leg raising. There was no wasting and there were normal deep tendon reflexes with reinforcement and no specific weakness.
136 In Mr Doig’s view, the plaintiff’s work had been a significant contributing factor to his current situation. He diagnosed chronic soft tissue injury to both the cervical and lumbar spine. He thought further treatment in the form of pain management may be some benefit to the plaintiff but thought surgery did not have a part to play.
137 The plaintiff told Mr Doig the main reason he could not do more than eight hours a week in his current job was psychological. Mr Doig noted that this was not his field of expertise but that, of course, the plaintiff also said he was significantly restricted by the fact his neck and back were sore.
138 In terms of prognosis, Mr Doig considered the plaintiff’s injury was going to be very slowly progressive and it would certainly possibly deteriorate in the future.
139 The plaintiff was examined by psychiatrist, Dr Weissman, on 2 April 2009. The plaintiff told him that having worked in early days as a painter and docker, he then returned to the docks in about 1999 or 2000, working with the defendant on a casual basis, anywhere between twenty and sixty hours a week. He also worked part time casually as a carpet cleaner during that time.
140 The plaintiff told Dr Weissman there was no psychiatric history and no family history of psychiatric illness. He told Dr Weissman he had not returned to work at the wharves. He had tried to do light duties, however he could not do them from an emotional perspective. He was anxious and stressed and it frightened him that there had been people killed at work.
141 The plaintiff told Dr Weissman that he worked as a cleaner fourteen or fifteen hours a week, usually five hours a day spread over three days. The plaintiff complained that his concentration and memory were shattered and he was forgetful and his concentration was poor. He also told Dr Weissman he tried to go out every now and again but his socialisation had diminished.
142 The plaintiff told him that he was able to shower and dress independently and enjoyed his cooking. He did some domestic chores and attended to grocery shopping but did not do any gardening. He tried to walk and exercise and was able to drive a car. He told Dr Weissman he used to enjoy running, playing golf, socialising and coaching senior football, however now he cannot do these activities – both physically and emotionally.
143 The plaintiff also complained of sleep disturbance and that his sex drive was gone. He ruminated about the incident and had a lot of bad dreams about being trapped and confined. He did not think he had any suicidal thoughts but he thought his situation was “just awful”. He said his facial scarring was only faint and it did not particularly bother him.
144 On examination, Dr Weismann found there was neither formal thought disorder nor abnormalities of perception. He considered the plaintiff’s insight and judgment were characterised by lowered self esteem and confidence.
145 In Dr Weissman’s view, there was no obvious pre-existing or unrelated psychiatric condition or impairment. He noted the plaintiff came across as someone with a good solid pre-morbid level of functioning, quality of life and work history.
146 He considered that as a result of emotional reasons, the plaintiff was not able to return to the wharf, nor did he have the capacity to increase his current part-time work cleaning beyond fifteen hours a week.
147 Dr Weissman considered the plaintiff had clearly developed a significant post- traumatic stress disorder complicated by a significant depressive syndrome related to his work injury. This disorder in Dr Weismann’s view was of moderate severity, complicated by depression of moderate severity, and collectively and cumulatively the plaintiff had a moderately severe psychiatric condition.
148 Dr Weissman thought that due to the nature, severity and extent of the plaintiff’s psychiatric symptoms he was totally and permanently incapacitated for wharf duties and on purely psychiatric grounds had a limited capacity for partial cleaning duties.
149 Dr Weissman recommended the plaintiff continue to see his psychologist fortnightly and also his general practitioner for supportive therapy. He believed that the plaintiff would benefit from another therapeutic trial of antidepressant medication and that his psychiatric prognosis was only poor.
Vocational Evidence
150 A vocational assessment of the plaintiff was carried out by Michelle Parsons of Evidex in July 2009.
151 The plaintiff told her that at the time of the incident he was working an average of twenty hours a week as a stevedore and twenty hours a week as a carpet cleaner.
152 He told her his continuing symptoms included panic attacks, reduced concentration, short term memory loss, fatigue, social withdrawal, increased irritability, sleep disturbances and nightmares.
153 In terms of his activities, he told her he was unable to lift moderate to heavy weights more than occasionally and he could not perform more strenuous household activities, such as carrying heavy shopping bags, cleaning shower recesses, vacuuming, sweeping and mopping.
154 Ms Parsons concluded that due to the effect of his injuries, the plaintiff did not have the capacity to return to pre-injury work on the wharf or as a football coach when analysed with regard to his neck and psychiatric injuries separately.
155 She considered the plaintiff’s current employment as a carpet cleaner for a maximum of fifteen hours a week was work for which he was suited when consideration was given to these factors, noting the fact his current employer was accommodating the plaintiff’s condition.
The Defendant’s Medical Evidence
156 The plaintiff saw Dr Kranz, neurologist, on referral from Dr Gamboni in April 2005. Dr Kranz noted that radiological findings were not available for assessment and that there had been an earlier EEG assessment. On examination, the findings in the plaintiff’s extremities were normal and there was some winging of the left scapula associated with forward flexion of the arms. Tendon reflexes were symmetrical and plantar reflexes responses were flexor and gait was stable.
157 Dr Kranz considered the plaintiff would have been subject to a type of whiplash injury to the head and neck in the incident and he appeared at that stage to have some evidence of a probably physical effect of the injury with some winging of the left scapula indicating probably some involvement of the long thoracic nerve on that side.
158 Dr Kranz noted there also appeared to be a significant psychological reaction to the change in lifestyle as well as the plaintiff’s ongoing symptoms.
159 At the time of this assessment, Dr Kranz thought the plaintiff did not have the capacity for pre-injury employment due to a combination of physical and psychological factors. He noted the psychological aspect, in particular, would need considerable attention and treatment in order to, as far as possible, resolve or remove that component to the plaintiff’s disability and complaints.
160 Dr Kranz considered the job offer at that time constituted suitable or reasonable employment from a physical point of view but that the plaintiff needed to be cleared by a treating psychiatrist. He considered the plaintiff was totally incapacitated but he did not consider that a permanent status and thought he was likely to respond to appropriate psychological and psychiatric treatment.
161 The plaintiff was examined by Dr Fail, psychiatrist, in March 2005. The plaintiff told him he could not coach the St Kilda City football team that year because he could not turn and run.
162 The plaintiff told Dr Fail that at the time of the incident he was only working part time on the wharf and cleaning one or two days a week and doing football coaching but he could not do any of that now.
163 The plaintiff told Dr Fail there was no history of any previous psychiatric treatment.
164 Having conducted a mental status examination, Dr Fail found the plaintiff to be continuing to suffer from an acute adjustment reaction arising as a consequence of and secondary to his physical injury. He considered the plaintiff suffered no current work incapacity due to his acute adjustment reaction.
165 Dr Andrea James, occupational medical practitioner, examined the plaintiff on 1 June 2005. On examination of the cervical spine, she found there was tenderness and reduced movement.
166 Dr James recommended the plaintiff required further treatment for his depression and anxiety and she noted she had discussed this with his treating doctor. She thought the plaintiff also required ongoing therapy for his neck and back pain.
167 In her view, there were no duties available at the dock suitable for the plaintiff at that time but she considered that it was too early from a psychiatric point of view to consider whether the plaintiff could ever return to work at the dock. She thought he would not be fit for general stevedoring duties for the next two to three months and that his musculoskeletal and psychiatric conditions were impeding his ability to perform any work.
168 Mr Bruce Love, orthopaedic surgeon, examined the plaintiff in June 2006, at which time the plaintiff told him he was working fifteen to twenty hours a week.
169 On examination, Mr Love found there was some discomfort at full rotation of the cervical spine but no gross restriction of movement and there were no abnormal neurological signs in the upper limb.
170 Mr Love noted that he was not able to determine the precise cause of the plaintiff’s headaches but he considered it was reasonable to assume they were cervical in origin in view of the mechanism of the injury.
171 He thought the plaintiff’s impediment to full time work was the presence of persistent headaches, the need to take regular medication and the general sensation of feeling unwell, meaning that he did not feel capable of working for a full week.
172 Dr Mutton, consultant occupational physician, has examined the plaintiff on two occasions: initially in March 2005 and most recently in August 2008.
173 At the time of the initial examination, the plaintiff told Dr Mutton that he worked casually, approximately one day a week, on the wharf and he had not returned to that work because of neck pain and headaches, and had also been unable to return to steam cleaning work.
174 On examination, there was limited cervical movement. There was no neurological abnormality in the upper limbs and there was restriction in both shoulders. No results of investigations were available.
175 Dr Mutton noted the plaintiff’s ongoing problems related to memory loss, poor concentration, headaches and pain in the back of the neck with reduced range of movement. He considered at that stage the plaintiff was fit to return to work on a graduated basis but would not be able to do physically demanding tasks. He thought the offer of return to work as a shipping clerk was appropriate.
176 The offer involved commencing week one, working twelve hours a week through to forty hours per week, but Dr Mutton noted that the plaintiff had only been working one day a week prior to the injury.
177 Dr Mutton considered at that stage it was unlikely there would be any permanent impairment. The plaintiff told him he could not return to work as a shipping clerk because he could not perform physical work standing on his feet all day.
178 When re-examined in 2008, the plaintiff was working eight to ten hours a week as a cleaner and had not returned to wharf work.
179 The plaintiff told Dr Mutton that prior to the incident he worked twenty five to forty hours as week as a cleaner, with casual hours on the wharf of some twelve hours a week.
180 On examination, the plaintiff complained of constant neck pain, worse with work activity and also that he suffered from headaches. He remained nervous and anxious and subject to panic attacks and may have nightmares.
181 Dr Mutton noted there was little in the way of general spinal tenderness and there was mild reduction of cervical movement. There were no neurological abnormalities.
182 In Dr Mutton’s view, the plaintiff’s prognosis was poor. He considered there appeared to be no explanation for the plaintiff’s ongoing symptoms given the plaintiff’s reported understanding that the radiology was quite normal.
183 Dr Mutton considered that the plaintiff primarily suffered from neurological conditions by way of pain and discomfort and headaches and he had some mild psychological symptoms. He considered examination by a neurologist may be appropriate, but noted the plaintiff had been examined by Dr Kranz.
184 Dr Mutton considered the plaintiff may benefit from a pain management program. He concluded overall the plaintiff primarily suffered from pain with little in the way of physical findings.
185 Dr Mutton thought the plaintiff should maintain light to moderate work with a weight limitation of five to seven and a half kilograms with appropriate rest breaks. He considered it was likely that there was a permanent incapacity for pre-injury duties and permanent need for restricted duties.
186 Mr Nye, neurosurgeon, has examined the plaintiff on two occasions, initially in June 2005, and most recently on 9 September 2008. Following initial examination, Mr Nye concluded the plaintiff suffered a significant concussive head injury in the incident, and in addition, possible aggravation of pre- existing cervical degenerative disease.
187 Mr Nye thought the plaintiff continued to suffer the consequences of a significant head injury and remained incapacitated for any form of employment. However, he predicted improvement would occur with the passage of time which would permit the plaintiff to resume both his early occupational activities.
188 On re-examination, the plaintiff advised Mr Nye that he was working on average eight to ten hours per week steam cleaning. The plaintiff reported continuing symptoms of headache and neck pain, the latter being constant and related to the headache.
189 Neurological examination was normal and there was no abnormality of cranial nerve function identified. There was some limitation of cervical flexion with other movements, including posture being normal, and there was no spasm of the paravertebral musculature.
190 Following re-examination, Mr Nye confirmed his previous conclusions; namely, that the plaintiff had suffered a concussive head injury accompanied by a possible aggravation of degenerative cervical spine disease. However, he noted there was no radiological material available to confirm this suspicion.
191 Mr Nye noted there was evidence of psychological reaction previously identified as an Adjustment Disorder and he suspected that continued and was the main cause of the plaintiff’s described somatic symptoms. Accordingly, he thought further assessment from a psychiatrist would be appropriate.
192 In terms of physical consequences, Mr Nye remained of the view that the plaintiff’s prognosis should be favourable and that continuing symptoms in his opinion had their basis in a psychological reaction.
193 Dr Andrew Miller, occupational health consultant, examined the plaintiff on 27 April 2006.
194 On examination of the plaintiff’s cervical spine, he found movements were close to the normal range and there was no tenderness and there was normal alignment. Dr Miller considered there was a slight disability of the plaintiff’s neck due to local discomfort and limitation of movement. He did not consider the plaintiff appeared depressed or anxious. Neurological testing was normal and there was no evidence of spinal root involvement.
195 Dr Miller considered it probable the plaintiff sustained an aggravation of degenerative changes in the axial spine in the incident and that his recovery had been complicated by the onset of a chronic depressive condition. In his view, the plaintiff’s ongoing neck and head symptoms were attributable to work-related degenerative changes and that the plaintiff’s employment was not still contributing to the claimed injury. He believed that the plaintiff required psychiatric assessment.
196 Dr Miller provided a supplementary report as to the plaintiff’s work capacity, having been told that the plaintiff was working as a steam cleaner for ten to twenty hours a week and coping reasonably well.
197 Dr Miller considered the plaintiff was physically capable of engaging in wharf work. He considered, given his findings of close to normal function of the neck and back, that if the plaintiff observed correct manual handling techniques, he should be capable of upgrading his hours as a steam cleaner to full time.
198 The plaintiff was examined by Dr Botvinik, consultant psychiatrist, on 21 June 2006. The plaintiff told him that at that time he was working as a steam cleaner for fifteen to twenty hours per week.
199 Dr Botvinik concluded the plaintiff had sustained a concussive head injury with the development of post-concussive syndrome. From a purely psychiatric point of view, he believed it would be fair to say that the plaintiff suffered from the consequences of a head injury with very mild symptoms of depression and anxiety. He diagnosed an Adjustment Disorder with mild anxiety and depression and considered the plaintiff did not require any specific treatment for his psychiatric symptoms because they were of a very mild nature.
200 Dr Botvinik did not think the plaintiff needed any psychiatric treatment, nor did he need ongoing psychological counselling.
201 Dr James Drury, clinical neuropsychologist, carried out an assessment of the plaintiff in August 2006. He concluded that the plaintiff had sustained a mild concussive head injury with an uncertain period of unconsciousness, extending for up to a few minutes and a post-traumatic amnesia period extending out for twenty to thirty minutes.
202 Dr Drury noted the plaintiff demonstrated competent performances on most measures of general, intellectual and memory function, however there were some isolated performances in relation to spatial planning and recall which were slightly lower than expected.
203 Dr Drury concluded that it was likely the plaintiff’s subjective report of occasional forgetfulness was due to some combination of factors relating to his psychological state, pain and fatigue and that there was insufficient evidence to indicate the presence of significant organic brain damage.
204 In Dr Drury’s view, on a practical level the plaintiff had been able to work part time cleaning for approximately twenty hours a week. He noted the plaintiff felt no longer able to return to work at the wharf, largely due to his psychological reaction to the incident. He considered that if the plaintiff’s fatigue did not diminish he may well be unable to work beyond his current level cleaning.
205 Dr Alan Jager, psychiatrist, has examined the plaintiff on a number of occasions, initially in September 2007, in September 2008 and most recently March 2009.
206 Following these three examinations, Dr Jager diagnosed a major depressive disorder contributed to by the plaintiff’s physical injury and marital separation.
207 On examination in 2008, Dr Jager thought the plaintiff’s psychiatric condition did not interfere with his work capacity, and from a psychiatric perspective alone he could undertake his pre injury employment.
208 On examination in 2009, the plaintiff told Dr Jager that he had given up football coaching because he had no energy. At that time he considered the work component of the plaintiff’s condition had not resolved and contributed materially to a partial incapacity for work and the need for treatment services.
209 Dr Jager noted the plaintiff had deteriorated somewhat and, in his view, the plaintiff was not fit for full time pre-injury duties and was only fit to work five hours a day within his physical restrictions.
210 Dr Jager considered the current treatment, whilst appropriate, was
inadequate, and that the plaintiff should be transferred to a consultant
psychiatrist to provide comprehensive treatment.
211 A neuropsychological assessment was also carried out by Associate Professor Saling in July 2009.
212 In his view, on neuropsychological examination, the plaintiff was cognitively intact, apart from the possibility of a minor to mild reduction in speed of information processing. His memory functions were objectively normal. The plaintiff had ongoing symptoms of lowered mood which Professor Saling thought might be the basis of the plaintiff’s subjective symptoms and produce concentration and forgetfulness.
213 He considered, on balance, it was possible the plaintiff had sustained a minor to mild concussive head injury. Objective neurocognitive function was normal.
214 In Professor Sailing’s view, by virtue of his post-traumatic stress anxiety and features, the plaintiff would be unable to return to his wharf work, and there was no neuropsychological impediment to his engagement in part-time cleaning work.
Other Medical Evidence
215 The defendant tendered details of the plaintiff’s attendance at Epworth Hospital on 11 March 2001. On that date he presented with a past history of hepatitis B and emotional problems in the context of matrimonial problems. He had taken cocaine on the weekend; he had decided to take Temazepam and had a lot of alcohol. It was noted the plaintiff denied suicidal intent.
216 A multidisciplinary care plan was completed by Dr Gamboni on 28 November 2001. The principal diagnosis at that time was anxiety and other significant health problems of hepatitis B and a duodenal ulcer were noted. To relieve symptoms of anxiety and panic disorder the plan was to refer the plaintiff to psychiatrist, Dr Scott, and also refer him to James Morris with a view to relieving symptoms and dispensing with medication.
217 A treatment questionnaire was completed by Ms Magnusson in June 2007. At that stage she made a provisional diagnosis of anxiety-based depression, adjustment disorder and chronic pain. She thought the plaintiff had no identifiable pre existing issues impacting on his recovery. She noted he was then working approximately sixteen hours a week - a more than sixty per cent reduction in his previous work capacity.
Vocational Documents
218 A job offer was made to the plaintiff on 21 February 2005 and repeated on 27 May 2005. The offer involved the plaintiff checking materials being loaded off the ship against manifests, coordinating separation of materials into various batches according to customer requirements, directing the forklift drivers and reporting the amount of material that had been dispatched. The work was said to be 100 per cent standing/walking and required carrying of light paperwork only.
219 A worksite assessment report dated 6 September 2005 set out the nature of the plaintiff’s duties at Able Carpets and the type of equipment he was required to use, including a portable steam cleaning machine on wheels which weighed approximately forty five kilograms.
220 Work Focus provided progress reports dated 24 February 2005, 29 April 2005 and 27 May 2005 detailing plans for the plaintiff to return to work with the defendant.
Details of Earnings
221 Records relating to the twelve-month period prior to the incident indicated that in that year the plaintiff worked 450 hours for the defendant. On average he worked 8.65 hours a week, earning a total of $14,000.
222 Over the four-year period from 2 April 2000 to the date of the incident, the most hours the plaintiff ever worked in a fortnight was 40 hours. In total he worked 240 weeks, earning a total of $26,594. On average the plaintiff worked 3.58 hours a week with a gross income of $110 a week over the four- year period
223 The plaintiff set out in his claim form that he was working 22 hours a week (excluding overtime), earning $32.50 per hour, totalling $682.50 per week.
224 The employer noted the plaintiff was paid $32.56 an hour. He did not work overtime but worked regular shift work and earned on average $272.35 a week.
225 The plaintiff was cross examined about a letter of warning relating to his failure to attend work on 27 October 2003. The plaintiff explained that the reason for his non attendance was that he did not have his mobile phone on to get the message he was to work.
Video Evidence
226 There was a total of seventy seven hours of surveillance and video time of two hours and twenty four minutes.
227 An hour and ten minutes of video was shown of the plaintiff attending to his football coaching activities on Sunday, 12 July 2009.
228 It appears that the second, third and fourth quarters were covered in the video and the plaintiff was shown on the sidelines coaching during those play periods and also during the halftime and three quarter time breaks and leaving the ground with his players and walking out of the changing rooms after the game.
229 The plaintiff was shown at halftime addressing the team and briefly holding his small daughter. The plaintiff confirmed he had unlimited access to his daughter who lived with her mother at Tarneit and that he stayed at those premises about twice a week.
230 The plaintiff explained that he was demonstrative or animated in the video coaching the children because he had to do so to get their attention and “you cannot touch them because of the way the law is or the way people perceive the law”.
231 The plaintiff explained that he paid for his coaching activity later and that he was sore and tired. He explained that turning his whole body as seen on the video was something that he taught himself to do since the injury.
232 If it had not been for the incident he would be training with the team he was coaching. He would probably be doing more work steam cleaning.
233 The plaintiff confirmed that on the video of 15 July 2009 he was shown walking in and out of Dr Saling’s rooms for a medical appointment. The plaintiff said he was not aware of being videoed at that time nor that he was turning around and looking at people filming him. He did not agree that he seemed to be having problems walking.
234 There was also a video of 39 seconds taken on 5 August 2009, but not shown, where the plaintiff agreed he was assisting his daughter move from her premises in St Kilda to other premises. He said that he helped her take some clothes to her new house and that he had the use of a courier van from a caryard in Ascot Vale. He knew the man who owned the caryard and sometimes the plaintiff kept that van at the Tarneit property and he sometimes used it for steam cleaning purposes.
Findings
235 I accept that the plaintiff suffered a compensable injury in the incident – namely an aggravation of pre existing degenerative change to the cervical spine.
236 The issue is therefore one of range – namely, whether the consequences to the plaintiff of the impairment to his cervical spine when judged by comparison with other cases in the range of possible impairments or losses of body function may be fairly described as being more than “significant” or “marked” and at least as being “very considerable” – s.134AB(38)(c).
237 The term “serious” requires the impairment and its consequences to be viewed objectively and also judged on an external comparative basis against other possible impairments not necessarily in the same category: see Humphries v Poljak (1992) 2 VR 129, at 170, accepted by the Court of Appeal in Barlow v Hollis [2000] VSCA 26: see in particular Chernov JA, at para 29.
238 The impairment must be permanent, in the sense that it is likely to last into the foreseeable future.
239 The thrust of the plaintiff’s affidavit material was that prior to the incident he was generally fit and healthy and working full time.
240 In cross examination, it became clear this was not the case.
241 The plaintiff had been diagnosed with hepatitis in 2000. Whilst his liver function tests were normal as of August 2001, Dr Gamboni continued to certify the plaintiff fit for fifteen hours a week as a result of his liver problem until 2006. As Dr Gamboni explained a lot of the reason for such certification until 2006 was the plaintiff’s anxiety and other problems. Further, the plaintiff had been taking Temazepam to help him sleep since 1999.
242 It was submitted by counsel for the plaintiff that as a result of his neck injury the plaintiff is no longer able to engage in heavy manual work.
243 Whilst his affidavit evidence and various histories given to doctors indicated the plaintiff was working in excess of 40 hours per week on the docks and cleaning at the time of the incident, again this clearly was not the case.
244 As the plaintiff conceded in cross examination, he had not done any cleaning work at all in the six to eight months before the incident.
245 In considering the plaintiff’s earning capacity at the wharves at the time of the incident, the fairest approach is to look at his earnings in the year prior thereto as in the first three years of his employment he worked there very infrequently.
246 In those twelve months prior to the incident, the plaintiff worked 449 hours and earned $14,000. On average he worked 8.65 hours per week.
247 Since the incident the plaintiff has worked up to 20 hours per week cleaning in a relatively heavy job, albeit with the assistance of his understanding boss.
248 It is not clear what hours the plaintiff has actually worked in this job since the incident. He deposed in July 2009 he had had to reduce the hours worked to eight to ten hours a week and that sometimes he cannot work at all.
249 However, he told Dr Weissman in April this year that he worked fourteen to fifteen hours per week usually made up of five hours a day over three days and Mr Paydon deposed in July 2009 that he gave the plaintiff a maximum of four jobs per day with maximum hours of 8.00 am to 4.00 pm. The plaintiff told Evidex in July 2009 that he was continuing to do up to fifteen hours per week.
250 The only documentation relating to the plaintiff’s earnings from cleaning related to the period 10 July to 10 August 2009, which indicated he worked twenty nine hours.
251 When one compares the limited wharf work and the certification for such work to fifteen hours because of the plaintiff’s liver condition prior to the incident, to the work situation thereafter, there is not much difference between the hours worked then and now.
252 In any event, the plaintiff has consistently maintained that it is fear of working on the wharf not his physical capacity which precludes a return to that work.
253 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.
254 Accordingly, in this case what appear on their face to be medico-legal opinions supportive of the plaintiff’s claim of incident related incapacity for work must be looked at in the light of my views as to the plaintiff’s credit.
255 Those doctors who have supported incident related incapacity for employment have been given an inaccurate history by the plaintiff as to the hours worked and the nature of his work at the time of the incident. Further, they had no details of the plaintiff’s liver condition at that time and the fact that Dr Gamboni was providing certificates restricting his work to fifteen hours per week as a result of that condition.
256 In any event, Dr Gamboni confirmed in cross examination that from a physical point of view the plaintiff could do the duties as a shipping clerk set out in the 2005 job offer.
257 Accordingly, taking into account the correct history, I do not accept that any work related consequences of the plaintiff’s impairment are serious.
258 In terms of other consequences, the plaintiff returned to football coaching the year after the incident, albeit coaching juniors. For the following two seasons however, he was the paid coach of senior teams, including the Heidelberg Hawks – a job for which he applied.
259 From the video shown it appeared that the plaintiff did not have any difficulty standing on the side lines for an hour and a half, giving instructions to his players over three quarters of football. He was also seen addressing the players at half time and very briefly holding his young daughter in one arm.
260 Further, the plaintiff has told Dr Gamboni that he is restricted in his football coaching for psychological, not physical reasons.
261 I have difficulty accepting that prior to the incident the plaintiff would have been running the distances he claims, having regard to his liver condition and associated feeling of fatigue.
262 I do not accept any claimed restriction in the plaintiff’s ability to do his own housework when he is clearly doing heavier duties in his steam cleaning job using industrial equipment on a regular and extended basis
263 I do not accept, with this level of functioning both at work and at the football, that the plaintiff is in persistent pain.
264 In my view, this is not a case of stoicism, as was submitted by counsel for the plaintiff. I find that the plaintiff is able to engage in a wide range of activities from a physical point of view - functioning at a level not markedly different from his pre incident state.
265 Further, the plaintiff’s requirement for treatment to his neck since the incident has been minimal. Chiropractic and physiotherapy treatment ceased some time ago.
266 No doctor involved in the plaintiff’s care has seen fit to refer him for any investigations. Dr Gamboni has not referred the plaintiff for orthopaedic treatment. Further, Dr Gamboni was of the view that much of the effects of the plaintiff’s soft tissue injury had abated from the time of the incident.
267 Taking into account all the evidence, I do not accept that the consequences to this plaintiff of his neck injury, when judged by comparison with other cases in the range of possible impairments or losses of body function, may be fairly described as being more than “significant” or “marked” and at least as being “very considerable”.
268 Turning now to the application pursuant to sub paragraph (c) of the Act.
269 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”.
270 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.)
271 Whilst the plaintiff has been undergoing ongoing psychological treatment, he has not been referred to a psychiatrist at any time by his general practitioner or his treating psychologist.
272 Since the incident the plaintiff has been able to return to coaching football at various levels, at present coaching juniors.
273 I do not accept that the plaintiff would be able, from a psychiatric viewpoint, to coach juniors if he was suffering from a severe mental disorder.
274 Whether he is urged by Ms Magnusson to participate in football or it is his choice, it is an activity the plaintiff clearly enjoys and one that requires interaction with a range of people including young children, parents and officials.
275 Further, the plaintiff was shown on the video to be interacting well with those at the game.
276 Even coaching at a junior level requires regular attendance at matches and training. There was no evidence that the plaintiff has any difficulty attending these duties.
277 As Ms Magnusson said, the plaintiff is a well known popular man around the Richmond area. He is approached by and able to chat with people about the football.
278 I do not accept that the plaintiff is in any way isolated socially. He regularly goes to work and to the football in winter. His relationship with various family members is good and he sees them frequently and often stays with them overnight.
279 Whilst the plaintiff may have fears of injury or accident returning to work at the wharf, I do not consider this to be a consequence that is severe, taking into his work history before the incident and the fact that he has been able to continue his cleaning duties working up to fifteen hours or so per week and presently working about eight hours.
280 I find the plaintiff has not satisfied the “permanent severe” test in relation to his claim pursuant to sub-section (c).
281 Accordingly, I dismiss the plaintiff’s application for leave to bring proceedings for pain and suffering damages.
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