Boric v DMG Industries Pty Ltd and VWA

[2010] VCC 376

IN THE COUNTY COURT OF VICTORIA Unrevised

Not Restricted

AT MELBOURNE

CIVIL DIVISION

DAMAGES & COMPENSATION LIST

SERIOUS INJURY APPLICATION DIVISION

Case No. CI-09-01575

JELICA BORIC	Plaintiff
v
DMG INDUSTRIES PTY LTD	First Defendant
VICTORIAN WORKCOVER AUTHORITY	Second Defendant

---

JUDGE:	HIS HONOUR JUDGE PARRISH
WHERE HELD:	Melbourne
DATE OF HEARING:	8 and 9 December 2009
DATE OF JUDGMENT:	11 May 2010
CASE MAY BE CITED AS:	Boric v DMG Industries Pty Ltd & VWA
MEDIUM NEUTRAL CITATION:	[2010] VCC 0376

REASONS FOR JUDGMENT

---

Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, Section 134AB(37)(a) and (c) – low back – whether “serious injury” – psychiatric reaction – whether “severe”.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P F O’Dwyer SC with	Ryan Carlisle Thomas
Mr C J Nettleford
For the Defendant	Mr I D McDonald with	Lander & Rogers
Mr P G A Montgomery
HIS HONOUR:

Introduction

1 By way of Originating Motion dated 17 April 2009, Jelica Boric (“the plaintiff”) seeks leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, as amended (“the Act”), to bring common law proceedings to recover damages for an injury suffered by her on or about 14 June 2005 (“the injury”) during the course of her employment with DMG Industries Pty Ltd (“the first defendant”).

2          The plaintiff seeks such leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages” within the meaning of s.134AB(37) of the Act.

3          The plaintiff was represented by Mr P F O’Dwyer SC with Mr C J Nettleford of counsel, and the defendants were represented by Mr I D McDonald with Mr P G A Montgomery of counsel.

4          The application was heard over two days, and the following evidence was adduced:

(a)	The plaintiff and Dr D W Weissman, a medico-legal psychiatrist retained by the plaintiff, gave oral evidence and were cross-examined;
(b)	The plaintiff tendered the following evidence:

(i)    medical certificate dated 15 June 2005 (“Exhibit A”);

(ii)    Plaintiff’s Court Book (“Exhibit B”);

(iii)  report from Dr P Kornan to Gallagher Bassett Workers Compensation Victoria Pty Ltd dated 18 December 2007 (“Exhibit C”);

(c)

The defendant tendered the following evidence:

(i)	photostat of prescription for Panadeine Forte (“Exhibit 1”);
(ii)	video of plaintiff taken on 16 November 2007 (“Exhibit 2”);

(iii) Defendant’s Court Book (“Exhibit 3”);

(iv) two pages of clinical notes of Dr Fountain (“Exhibit 4”).

Relevant Legal Principles

5          The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act: (see s.134AB(19)(a) of the Act).

6          The plaintiff relies on paragraphs (a) and (c) of the definition of “serious injury” contained in s.134AB(37) of the Act.

Those paragraphs read:

“serious injury means—

(a)	permanent serious impairment or loss of a body function;
...
(c)	permanent severe mental or permanent severe behavioural disturbance or disorder; ...”

7          The part of the body said to be impaired for the purposes of paragraph (a) is the low back: see T5, L8–11.

8          The mental or behavioural disturbance or disorder for the purposes of paragraph (c) is described variously as major depression, chronic pain syndrome, pain amplification and anxiety.

9          In order to succeed, the plaintiff must prove on the balance of probabilities

that:

(a)	“the injury” suffered by her arose out of, or in the course or due to the nature of, her employment with the first defendant on or after 20 October 1999: (see s.134AB(1) of the Act and Barwon Spinners Pty Ltd and Ors v Podolak (2005) 14 VR 622, at paragraph [11]);
(b)	“the injury” and the resultant impairment (paragraph (a)) and/or the mental behavioural disturbance or disorder (paragraph (c)) must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”: (see Barwon Spinners (op cit), at paragraph [33]);
(c)	the “consequences” to the plaintiff of the low back impairment in relation to “pain and suffering” or “loss of earning capacity” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments ... may be fairly described as being more than significant or marked, and as being at least very considerable”: (see s.134AB(38)(b) and (c) of the Act);
(d)	The “consequences” to the plaintiff of the mental or behavioural disturbance or disorder in relation to “pain and suffering” or “loss of earning capacity” must be “severe” – that is, “when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, be fairly described as being more than serious to the extent of being severe”: (see s.134AB(38)(b) and (d) of the Act);
(e)	the test for “serious” and “severe” is set out in paragraphs (b), (c) and (d) of s.134AB(38) of the Act and is sometimes referred to as the “narrative test”.

10        In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden (see s.134AB(19)(b) and (38)(e) of the Act) to establish:

(a)	that as at the date of hearing a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s.134AB(38) of the Act: (see s.134AB(38)(e)(i)); and
(b)	that after the date of hearing the plaintiff will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more: (see s.134AB(38)(e)(ii)).

11        In determining the application, the Court:

(a)	must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”: (see s.134AB(38)(h) of the Act);
(b)	must make the assessment of “serious injury” at the time the application is heard: (see s.134AB(38)(j) of the Act);
(c)	notes that it has been observed that the question of whether any injury satisfies the definition of “serious injury” is largely a question of impression and value judgment: (see Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]);
(d)	must give reasons which are extensive and complete as the Court will give on the trial of an action, and in so doing disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application: (see s.134AE of the Act and Church v Echuca Regional Health (2008) 20 VR 566, at paragraphs [89]–[92]);
(e)	notes that s.134AB(38)(b) of the Act provides that the consequences of an injury and impairment in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately.

In the event that a worker satisfies sub-paragraph (i) but not sub-paragraph (ii) of s.134AB(38)(b) of the Act, the worker is entitled to have leave to bring proceedings for the recovery of “pain and suffering damages” only. A worker who satisfies the loss of earning capacity requirements of s.134AB is entitled, as a “matter of statutory construction”, to have leave to bring proceedings for both “pain and suffering damages” and “pecuniary loss damages”: (see Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170, delivered by the Victorian Supreme Court of Appeal on 28 July 2009, and in particular at paragraphs [60]–[64]).

The Issues

12        Mr O’Dwyer SC, senior counsel for the plaintiff, informed the Court that although he did not “abandon” reliance on the definition of “serious injury” contained in paragraph (a), he was “relying principally” on the definition of “serious injury” contained in paragraph (c): (see T1 L26–29).

13        Mr McDonald, counsel for the defendant, informed the Court that any organic condition suffered by the plaintiff was “relatively mild, being probably some aggravation of pre-existing degenerative changes”, and would not satisfy the test for “serious injury”. Further, he advised the Court that whilst the plaintiff had suffered some sort of “psychiatric reaction”, the nature and extent of such condition was “very unclear”, and in any event is not “severe” within the test of “serious injury”. Mr McDonald also advised the Court that he would be urging that the Court find that the plaintiff was an “extremely unreliable witness”: (see T5 L31–T6 L13).

The Plaintiff, her Injury and Treatment

14        The plaintiff adopted her two affidavits, sworn respectively on 14 October 2008 (found at p.21 of Exhibit B) and hereinafter referred to as the “first affidavit” and on 6 October 2009 (found at p.29 of Exhibit B) and hereinafter referred to as the “second affidavit”: (see T9 L26–30).

15        The plaintiff is a 52-year-old (born 20 May 1957) woman who was born in Serbia, where she attended school to Year 8, after which she helped out on the family farm.

16        She married on 14 December 1974 and has two adult children. She and her husband migrated to Australia initially in 1974, but had difficulty “adjusting” to the new life, and returned to Yugoslavia for a couple of years before returning to Australia in 1992. When the plaintiff initially came to Australia she performed factory work in a chocolate factory and for Bosch (a manufacturer of car parts).

17        On returning to Australia in 1992 she commenced full-time work with the first defendant in an assembly area, processing plastic parts for motor vehicles. She deposes that such work involved “a lot of bending and twisting” (see paragraph 15 of the first affidavit).

18        She describes the occurrence of her injury on 14 June 2005 in the following terms:

“16.	On or about the 14th June 2005 I was attempting to move a 4 wheel trolley which had one defective wheel. As I attempted to push the trolley the defective wheel caused it to swerve and when I tried to straighten it I twisted my back.
17.	The trolley was quite heavy. There were a large number of parts on the trolley weighing anything between 50 and 200 kg.
18.	I felt immediate pain but I continued to work thinking that I had just pulled a muscle.
19.	That night however, the pain in my back became worse. I had difficulty sleeping and when I woke in the morning I could hardly move. I went to work and struggled on for a while but I was in pain and I couldn’t help crying. One of my co-workers told me ‘You can’t keep crying and working at the same time.’ She told me that I had better see a doctor.”

(See first affidavit, p.23 of Exhibit B.)

19        Because of persisting pain in the low back, and also pain going down the left leg, the plaintiff consulted the general practitioner Dr Bruce Fountain at the Chandler Road Medical Clinic.

20        The plaintiff attended Dr Fountain on 17 June 2005, and, amongst other things, Dr Fountain arranged for the plaintiff to have various radiological studies including:

(a)	a plain x-ray of her lumbo-sacral spine on 18 June 2005 which revealed “no disc or bony abnormality” (see p.130 of Exhibit B);
(b)	a CT scan of the lumbo-sacral spine on 11 July 2005 which was reported as an “unremarkable study” (see p.131 of Exhibit B);
(c)	an MRI scan on 6 January 2006 which was reported on as follows:

“There is normal alignment of lumbar vertebrae. There is disc desiccation at L4/5. Mild broad based disc bulge does not compromise the central canal. There is left foraminal annular disruption also demonstrated. There is mild bilateral facet joint arthropathy which contacts the right emerging L4. Left L4 nerve root exits without impingement.

Elsewhere in the lumbar spine, central canal and neural exit foraminae are widely capacious. No focal disc protrusion or herniation identified. Conus medullaris is normal. Normal distribution of cauda equina.

Bone marrow signal intensities within normal limits.

Mild facet joint arthropathy at L5/S1.”

(See pp.132-133 of Exhibit B.)

21        Dr Fountain prescribed painkillers and anti-inflammatory medication for the plaintiff, and also referred her to physiotherapy commencing on 22 February 2005. Although this treatment involved a range of therapies, the plaintiff deposes “there really wasn’t any progress” (see paragraph 22 of the first affidavit).

22        Dr Fountain referred the plaintiff to the neurosurgeon Mr C Xenos, who initially consulted with the plaintiff on 21 February 2006. At that time, the plaintiff was complaining of constant low-back pain associated with left-leg pain which was intermittent in nature but could be quite severe. The plaintiff apparently told Mr Xenos that she felt overall that her “pain problem was getting worse”, and he noticed that she was walking with a limp (see report of Mr Xenos at p.51 of Exhibit B).

On reviewing the CT examination (see above), Mr Xenos was of the opinion that the radiology was mild and did not correlate well with her pain symptoms (see p.52 of Exhibit B). In such circumstances, Mr Xenos arranged for the plaintiff to undergo a CT-guided left L4-5 nerve-root sheath injection using local anaesthetic and steroid, which was undertaken on 7 March 2006. On review on 29 March 2006, the plaintiff informed Mr Xenos that she no longer had any left-leg pain, although the back pain continued.

Mr Xenos considered surgical intervention was not appropriate, and recommended that the plaintiff be referred to a “multi-disciplinary pain management and rehabilitation program” (see p.52 of Exhibit B).

In a report dated 5 November 2008 (see p.51 of Exhibit B) Mr Xenos states in part:

“Thus, her prognosis is somewhat guarded, and that is the main reason why the patient was recommended to consider a pain management and rehabilitation program. I’m not aware if that indeed was proceeded with. At the time of my assessment, the plaintiff had no capacity to return to her pre-injury employment, and indeed it depends on the success or otherwise of her pain management and rehabilitation program as to whether she will return to any duties, be it pre-injury duties or modified duties. We’re dealing with chronic pain here, and there is no suggestion at this stage about the patient being left with any permanent disabilities.”

(See p.53 of Exhibit B.)

(My emphasis.)

23        The plaintiff deposes in her first affidavit (see paragraph 27) that because the pain was “so bad” she was taking large amounts of medication, including Panadeine, Panadeine Forte (one to ten a day) and Valium. Dr Fountain referred her to the pain management and rehabilitation specialist, Dr Clayton Thomas.

24        In a report dated 2 September 2009 (see p.120 of Exhibit B) Dr Clayton Thomas notes that he initially examined the plaintiff in a treating capacity but was required to medico-legally examine her on 27 August 2009 at the request of those acting for the plaintiff.

Dr Clayton Thomas notes that when initially seen, the plaintiff was “found not to be ready and appropriate to commence a program, and it was recommended that she be seen by a psychiatrist or psychologist” (see p.121 of Exhibit B). Further, the specialist noticed that when he examined her on 15 May 2007 there were “a number of non-organic components and I was not able to determine the nature of the underlying organic problem (if any)” (see p.121 of Exhibit B).

After examination on 27 August 2009, Dr Clayton Thomas reports:

“She has low back pain. I note that copies of imaging reports of her lower

back revealed some degenerative changes at L4-5.

Nonetheless, the dominant problem is one of psychological reaction. Her response to the injury has been quite profound. She has catastrophic thought processes. She has significant emotional decompensation. She has significant emotional distress. They are acting to significantly worsen her overall level of disability.

I accept that she has sustained an injury as a consequence of her work. I accept that the injury is to the lower lumbar spine. I accept that her problems have been present for a prolonged period of time since 2005 and should be considered permanent and likely to continue into the foreseeable future.

I accept that there is an impairment of body function. I accept that an injury to a manual worker of a physical variety does represent a serious injury. I accept that the injury that she sustained should be considered very considerable.

I am not able to determine the nature of the underlying organic problem as it is significantly dwarfed by the emotional consequence.

...

I am not able to give you an indication as to her true level of physical functioning as her emotional problems were dominating here. In the absence of her emotional problems, it may have been possible for her to return to unrestricted full time duties for instance. The nature of the non organic components made it impossible to get any feel for what, if any, underlying organic problem was present.” (See p.122 of Exhibit B.)

(My emphasis.)

25        Dr Fountain referred the plaintiff to a psychologist, Dr Brian Strubel, who initially consulted with the plaintiff on 5 July 2006. In reports dated 2 November 2007 (see p.60 of Exhibit B) and 3 October 2009 (see p.65 of Exhibit B) Dr Strubel describes treating the plaintiff on a fairly regular basis, and has diagnosed the plaintiff to be suffering from a work-related chronic adjustment disorder with a major depressive component along with anxiety, chronic pain disorder, and features of sleep disorder (see p.66 of Exhibit B). In his second report, Dr Strubel states, in part:

“Mrs Boric needs ongoing medical, pharmacological and psychological

treatment.

The prognosis remains poor. I believe that on the balance of probabilities that she is unlikely to work again in a job for which she is reasonably qualified by training, education or experience because of physical disablement which was caused by the injuries she sustained as a consequence of the compensable injury.” (See p.68 of Exhibit B.)

(My emphasis.)

Dr Strubel also notes that she is psychologically unfit for all types of work, and that retraining for sedentary duties is not an option, given her meagre former schooling, her poor English skills, her computer illiteracy and difficulties with poor concentration, impaired short-term memory and slow information processing. In this respect, Dr Strubel is “doubtful” whether the plaintiff would be able to get to “first base in an application for a sedentary or any other job”.

26        Dr Clayton Thomas (or one of his associates) referred the plaintiff to a psychiatrist, Dr Alan Blandthorn, who initially examined the plaintiff on 7 August 2006. A perusal of the reports of Dr Blandthorn in evidence would suggest that he consulted with the plaintiff over the following periods:

(a) From 7 August 2006 until 7 September 2007, when Dr Blandthorn advised the plaintiff that he would no longer review her, as he considered it “excessive” for both he and Dr Strubel to continue treatment.

Dr Blandthorn was of the opinion that the plaintiff was suffering from a major depressive episode complicated by a chronic pain disorder, all of which was contributed to by the injury. As at 7 September 2007, Dr Blandthorn reports:

“... [S]he mentioned increasing urinary incontinence over several months and more recently a loss of the sensation of fullness in her bladder, which I asked her to discuss with her general practitioner ... Her complaints of pain, insomnia and low mood were unchanged. Although she was being prescribed temazepam 10mg nocte from her general practitioner, she reported regularly taking twice this and reported it of no significant benefit anyway. She was also regularly taking in excess of the eight Panadeine Forte daily prescribed in contravention to everyone’s advice. She continued the Efexor XR 225mg daily. She was also attending the physiotherapist three times daily as well as having several physical appliances developed.”

(See pp.90–91 of Exhibit B.)

(b) On 28 February 2008 Dr Blandthorn again consulted with the plaintiff at the “suggestion” of the general practitioner. He subsequently consulted with the plaintiff on 6 March 2008, 27 March 2008, 4 April 2008, and 16 May 2008: (See generally pp.90-91 of Exhibit B.) As at 16 May 2008 Dr Blandthorn reports:

“... There had been no change in her presentation, and I discussed that I considered she attended adequate numbers of health professionals without also seeing me. She continued to be seen weekly by the psychologist, as well as having frequent physiotherapy and medical reviews. She did not believe she could reduce any of her medications and I considered the emphasis remained on restricting the amounts of medication dispensed to that prescribed. I did not make any further appointments.

The diagnosis remained of a chronic pain disorder complicated by a major depressive episode in partial remission.

With respect to Mrs Boric’s condition, her depressive symptoms did show some response to the Amitriptyline in that she was sleeping better, with better appetite, an absence of suicidal ideation and more animation at interview, but at the cost of unacceptable weight gain for her. The venlafaxine did not produce the same level of nocturnal sedation in aiding sleep but did produce a degree of improvement in her mood, an absence of suicidal ideation, increased spontaneity and animation at interview. The quetiapine increased the duration of her sleep, but there was no evidence of improvement in mood as an ‘augmenting effect’. It was suggested she remain on the venlafaxine 450mg daily and the quetiapine 25mg nocte indefinitely.

When last seen on direct questioning regarding her activities, she remained incapable of performing her usual domestic chores due to pain, and her life was dominated by the experience of pain.

When last seen Mrs Boric’s depressive symptoms alone would not have precluded her from working, but the level of preoccupation with pain was such I would consider her to be unable to work. This state had continued for three years and I expect she would be unchanged from my last contact.”

(See pp.91-92 of Exhibit B.)

(My emphasis.)

27        In a report dated 16 October 2009, the treating general practitioner, Dr Fountain, states:

“For her lumbar disc disease she takes Panadeine Forte (Analgesic) and Valium (Muscle relaxant) and wears a lumbar corset. Physiotherapy has ceased. Jelica has constant low back pain, with pain radiating down the left leg. She cannot sit or stand for any length of time and walks with a pronounced stoop, and can only drive her car for short periods.

These symptoms remain unchanged. I would estimate no worse but no conservative treatment, we have reached a plateau in that there has been no subjective or objective improvement in her overall condition.

better for the past few years.

For her depression anxiety, she takes Efexor XR 300 mgm daily, and

Seroquel 25 mgm at night.

She has been discharged from her psychiatrist Dr Alan Blandthorn in

May 2008, but continues to consult Brian Strubel her psychologist

weekly, which appears to help her anxiety depression.

I would estimate her anxiety-depression to be stable at present with this

treatment regime.

Examination of her lumbar spine reveals very limited extension and

flexion and lateral flexion 50% of expected range. Straight leg raising

left side is zero. Knee and ankle jerks present. Slight muscle wasting

left calf compared to right calf. ...

Obviously Mrs Boric is totally unemployable in any occupation now and for the future.”

(See pp.45-46 of Exhibit B.)

(My emphasis.)

28        In her first affidavit, the plaintiff described her then complaints, to include:

• “Constant low back pain – it is always there.” (See paragraph 34 of the first affidavit.)

• “As a result of the pain I am unable to bend over. I cannot sit for longer than about 10 minutes. I can only stand for about 10 minutes. I feel that the only lifting I could do would be one kilogram or a litre of milk. I can only walk for about 10 minutes and I cannot drive for longer than 15 or 20 minutes.” (See paragraph 35 of the first affidavit.)

• She does not do any of her housework or housekeeping activities, and obtains the assistance of her husband and daughter-in-law. (See paragraph 36 of the first affidavit.)

• She is unable to garden, and does not socialise, even with her “own family”. (See paragraph 37 of the first affidavit.)

• As a result of her injury she suffers urinary problems (she is incontinent) and also has gastric problems, liver problems, and has suffered weight increase. (See paragraph 38 of the first affidavit.)

• She is tired and lethargic and has “lost interest in going out to the extent I am not even interested in visiting my sons or their children”. (See paragraphs 40–41 of the first affidavit.)

• Unless going out to see her lawyer or doctor, she sits in her house in her “electric chair” for 8 hours a day wearing her pyjamas and nightie, and she only dresses if she has to go out. (See paragraph 42 of the affidavit.)

• She does not care if she lives or dies, and has “thought of suicide many times”. (See paragraph 44 of the first affidavit.)

• The injury has been “devastating” for her. (See paragraph 45 of the first affidavit.)

• She has a “poor short term memory” and she finds it “difficult to concentrate”. (See paragraph 47 of the first affidavit.)

29        In her second affidavit, the plaintiff deposes that she takes eight tablets of Panadeine Forte per day and sometimes more, Efexor, Valium, and Seroquel. In particular she deposes that her “physical symptoms are much the same as they were at the time of [her] earlier affidavit”, and in particular she has “constant low back pain”. (See paragraphs 2 and 3 of the second affidavit.)

30        However, in paragraphs 4 and 5 of her second affidavit she deposes:

“4. I refer to paragraphs 34 to 47 of my earlier affidavit wherein I deposed to my then present complaints. At paragraph 35 I say that I am unable to bend over. This is not actually the case. I can bend over but not very far. I have to be careful if I am required to bend over. I also say that the only lifting I could do would be one kilogram or a litre of milk. If I had to I could lift a few items such as bread, milk and cigarettes. In fact, when I visit Dr Fountain at Chandler Medical Clinic, Noble Park, I will buy bread, milk and cigarettes. I can walk from the car to the doctor’s surgery and from the car to the shop and back. I have viewed a DVD provided by the Defendant in its response material. This DVD shows me in fact driving to Dr Fountain and attending the bakery and cigarette shop in Noble Park. As I deposed in my earlier affidavit I am not interested in the housework or the washing, cooking or cleaning around the house.

5.  I refer to paragraphs 37 and 41 of my earlier affidavit wherein I deposed that I do not socialise and that I am not even interested in visiting my sons or their children. By way of explanation, what I meant in those paragraphs was that I do not socialise as much as I did before getting injured, or as much as I would like and likewise, I do not attend my sons’ houses as regularly as I had in the past. However, I do visit my sons’ houses occasionally, such as for my grandchildren’s birthdays and other family occasions. I have read a surveillance report provided by the Defendant in its response material detailing my movements on 19 November 2007. The reports refers (sic) to Oakland Drive, Hampton Park. My son lives in that street and as I have deposed to above, I do visit my son and his children but very rarely. I cannot recall the occasion referred to in the surveillance report but it appears to have been a family function as the women referred to appear to be my daughter-in-law’s sisters and mother.”

(My emphasis.)

31        The plaintiff also deposes that her incontinence continues, and that she has to “constantly wear pads, night and day”. (See paragraph 6 of the second affidavit.)

32        In addition to her two affidavits, the plaintiff gave some limited oral evidence. She stated:

(a)	She has continuous low-back and left-leg pain which is made worse when she is moving or walking, which she can do for about 10 to 15 minutes (see T9 L31–T10 L19);
(b)	She suffers “depression” which is “bad” and she still has some suicidal ideation (see T10 L29–T11 L19);
(c)	She continues to suffer from incontinence which is a “constant problem” for which she takes medication (see T11 L28–31);
(d)	Dr Fountain prescribes medication for her, and she takes:

(i)     Eight to ten Panadeine Forte per day,

(ii)    300 milligrams of Efexor per day,

(iii) One 25-milligram Seroquel tablet per day,

(iv) Two Valium tablets per day,

(v)    Medication for constipation (see T12 L7–T13 L8).

(e) She continues to attend the psychologist Dr Strubel once a week and continued physiotherapy until August 2009 (T13 L8–12).

33        The plaintiff was cross-examined extensively by counsel for the defendant, and in particular to various areas of her evidence highlighting, it was later submitted, her unreliability as a witness.

34        Counsel for the defendant highlighted the changes in her evidence in the second affidavit, and put to the plaintiff quite strongly that the only reason the changes were made was that in the “response material” supplied by the defendant, there was surveillance and a surveillance report of activities on 19 November 2007, which suggested a level of activity greater than that described in the first affidavit.

35        The court was shown a very short video taken on 16 November 2007 which revealed the plaintiff driving a Holden to her doctor’s clinic in Chandler Road, and attending some shops (see generally T39). Furthermore, consistent with the surveillance report, the plaintiff accepted that on Monday, 19 November 2007, she drove to her son’s address in Hampton Park and accepted that other women were entering the property, suggesting some sort of social event.

36        In essence, the plaintiff denied that she was attempting to mislead in respect of the contents of her first affidavit and was only attempting to stress that her movements and activities were severely diminished as a result of her ongoing painful condition.

37        Furthermore, the plaintiff was also taken in cross-examination to paragraph 17 of her first affidavit where she deposes that there were a large number of parts on the trolley weighing anything between 50 and 200 kg. When asked whether such evidence was false, the following evidence was given:

“[Answer:] It’s false for the exact amount because I don’t know I never, never weighed the trolley, I don’t know how heavy they are. They are heavy.

[Question:] You would know this though wouldn’t you that 200 kilograms is an incredibly heavy weight for anybody to be trying to push or manoeuvre? [Answer:] It is, it is.

[Question:] You’d agree wouldn’t you that what you were pushing wasn’t anywhere near that sort of weight? [Answer:] No. No, but they are long. Trolley was long but how heavy I don’t know.”

(See T76 L1–10.)

38        Later, there were further questions and answers:

“[Question:] As I understand it anything between 50 and 200 you say is

wrong, is that right? [Answer:] It is.

[Question:] Why did you say that in the affidavit? [Answer:] Because

I don’t know and when they written on I thought the person who did write

it on, they have idea how heavy that trolley.

[Question:] The person who wrote the affidavit for you? [Answer:] Yes.”

(See T78 L8–13.)

39        The plaintiff also gave the following pertinent evidence in cross-examination:

(a)  In relation to medication the following evidence was given:

“[Question:] How many is your doctor telling you to take? [Answer:]

He written on a prescription, eight in 24 hours.

[Question:] Is that your current prescription? [Answer:] That’s the

current prescription, then Panadeine Forte, eight in 24 hours. No

more than that. That’s been written. And I did take it during the

day.

[Question:] Did you tell Dr Entwisle that you are taking up to 13

Panadeine Forte a day? [Answer:] Yes, at some stage. Yes.

[Question:] Do you say that your doctors have or haven’t discussed

overuse of Panadeine Forte in your case? [Answer:] No because

like I told you earlier, I did take – some day they come in, I take six

but some day, they come in, I take more than eight. I been asked

once in a chemist to talk with my daughter because they can’t

supply me with that many medication. I use more than I should.

That’s what I’ve been asking a chemist.

[Question:] So how many are you taking a day then, on average?

[Answer:] Eight. Ten.

[Question:] Eight or ten? [Answer:] Eight. Sometime ten, sometime

13. All depend. But usually, roughly to say, eight.

[Question:] When you get these Panadeine Forte, they are

prescribed in what, packets of 20, is that correct? [Answer:] Yes.

[Question:] You are taking eight to ten a day? [Answer:] Yes.

[Question:] So you would be going back to your doctor about twice

a week, wouldn’t you, to get a new prescription of Panadeine Forte?

[Answer:] No, I used to be in like that but I ask him – I mean, I feel

guilty to come in two times a week just for the prescription, if I can’t

get prescribed more so then I don’t need to come that often. Now

he prescribe me and I get at one prescription, 180, I think.

[Question:] One hundred and eighty? [Answer:] One hundred

eighty, yes, I think, on one prescribed. I get three times 180.”

(sic)

(See T31 L16–T32 L16.)

Later in this part of the evidence, the plaintiff produced a prescription and she was asked:

“[Question:] So this original prescription was 16 October 2009? [Answer:] I don’t know when was it but that’s the prescribed he gave to me.

[Question:] That was for 240, is that correct? [Answer:] I don’t know how many but I know every time I went into a chemist, nine box I get.”

(sic)

(See T33 L2–6.)

The actual prescription dated 16 October 2009 was tendered as an exhibit (Exhibit 1), which revealed a prescription for 200 Panadeine Forte with a direction to take one to two tablets every six hours with a maximum of eight per day.

(b) When asked about any effort to return to any sort of employment, the following evidence was given:

“Have you made any effort to obtain any sort of employment, firstly, since you sustained your injury and stopped work? [Answer:] Try to think what kind of the job I can work. If I couldn’t stand up for very long or if I couldn’t sit up for very long, which – which company going to employ me, as a sick person? I can’t – I can’t go into the factory looking for the job and lying to them, I’m healthy because I’m not.

[Question:] How long do you say you can stand up for? [Answer:] If I looking for the job, I always looking before the job and I never says I want the job to sit or I want the job to sit up, I just looking for the job, any kind of the job. So if I looking now for the job - - -

[Question:] No my question is, how long do you say you can stand

up for? [Answer:] How long?

[Question:] Yes? [Answer:] How long I have to. How long I must.

But comfortably 15, 15 to 20 minutes.

[Question:] So is the answer to my earlier question, that you haven’t

made any attempt to look for work whatsoever, since your injury in

June 2005? [Answer:] You mean, did I went to look somewhere for

the job?

[Question:] Yes. [Answer:] No.

[Question:] Have you explored any option in terms of retraining?

[Answer:] No.

[Question:] Haven’t been down to Centrelink to make any enquiries

about work? [Answer:] No.”

(sic)

(See T86 L26–T87 L19.)

(c) In relation to undergoing any pain-management course, the following evidence was given:

“[Question:] But you have never undertaken that pain management course or any pain management course, have you? [Answer:] Never taken because no one send me to. I go wherever they send me, I go and do whatever they told me.”

(sic)

(See T88 L20–23.)

(d) One of her sons has moved to Trafalgar, and she does not see him and his family very often, and the other son, although living reasonably close, is not seen that often.

Medico-Legal Evidence

40        The solicitors for the plaintiff arranged for the plaintiff to be medico-legally examined by the following doctors:

(a)	the consultant psychiatrist Dr David Weissman on 14 November 2008 (see report dated 14 November 2008 at p.93 of Exhibit B) and on 12 August 2009 (see report dated 12 August 2009 at p.104 of Exhibit B);
(b)	the orthopaedic surgeon Mr Roger Westh on 13 January 2009 (see report dated 15 January 2009 at p.115 of Exhibit B) and on 6 November 2009 (see report dated 13 November 2009 at p.118 of Exhibit B);
(c)	pain management and rehabilitation specialist Dr Clayton Thomas on 27 August 2009, to which reference has already been made;
(d)	the occupational physical Dr Robyn Horsley on 22 October 2009 (see report dated 22 October 2009 at p.123 of Exhibit B).

41        Dr Weissman gave viva voce evidence and adopted the reports referred to above and also a supplementary report dated 7 December (see report at p.114A of Exhibit B). That report did not relate to an examination, but was a summary of his examinations. Importantly, Dr Weissman also asserts in that report that he had “originally” seen the plaintiff on behalf of the Medical Panel on Friday, 14 December 2007, and subsequently examined her on behalf of the solicitors for the plaintiff on 14 November 2008 and 12 August 2009, unaware of that initial examination at the Medical Panel.

42        In relation to his medico-legal examinations, Dr Weissman diagnosed a major depressive disorder and also probably symptoms and features of chronic pain syndrome. In that report, Dr Weissman states:

“I stated that, overall, she seemed to have severe work-related psychiatric, psychological, emotional and behaviour symptoms, signs and disturbance.

I stated that, on the balance of probabilities, she is totally incapacitated is incapacitated for alternative, modified, or ‘suitable’ duties or employment.”

for all pre-injury duties.

Therefore, in answer to your question, Ms Boric does suffer from a

psychiatric or psychological injury in the incident or period of work.

She also suffers from a psychiatric impairment as a consequence of that

injury. I have not been asked to provide a specific psychiatric

impairment figure however.

The psychiatric impairment is permanent.

Leaving aside the physical consequences (which are outside my area of

expertise) and considering only the client’s psychological issues, she is

totally unfit for pre-injury duties for the foreseeable future.

(See p.114B of Exhibit B.)

43        At p.134 of Exhibit 3 is the Certificate of Opinion of a Medical Panel dated 1 February 2008 in relation to the plaintiff. One of the Panel was Dr Weissman, and two questions were posed:

“Question 1: What is the nature of the worker’s medical condition

(including any sequelae) relevant to the claimed injury?

Answer: In the Panel’s opinion the worker is suffering from major depressive disorder and a chronic pain disorder as a consequence of a now resolved soft tissue injury of the lower back.

Question 2: Does the worker have no current work capacity? If so, is this situation likely to continue indefinitely?

Answer: In the Panel’s opinion the worker has no present inability arising from any injury such that she is not able to return to her pre-injury employment.”

44        Dr Weissman, when cross-examined about the apparent inconsistency, gave this evidence:

“[Question:] Perhaps I’ll rephrase the question. Firstly, if we go to p.10 of your report, that’s at p.102 of the court book Your Honour. Your diagnosis at that stage is a chronic major depressive disorder severe with passive suicidal ideation. This is essentially the same diagnosis that you made when you’re a member of the medical panel is it not? [Answer:] Yes.

[Question:] In addition you say that the worker seemed to have features of a pain amplification symptom with elevated health concerns, pain focus and pain preoccupation, correct? [Answer:] Yes, the major bit being in the next paragraph where I say features of a chronic pain syndrome.

[Question:] Again, that is essentially the same diagnosis that you were making when you were a member of the medical panel was it, chronic pain disorder? [Answer:] Yes, by and large, I suppose the medical panel one sounds a little bit more forceful but it’s by and large the same.

[Question:] Then in terms of work capacity you say that due to the nature, severity and extent of the worker’s work related psychiatric symptoms, severe, combined with length of time out of the workforce, more than three years, lack of transferable skills, advancing age, physical state, which you concede is outside your area of expertise, the worker is totally incapacitated for all employment. What then was the difference between the situation that applied as at December 2007 and the situation that you’re confronted with as at November 2008, 11 months later? [Answer:] It’s difficult for me to say except that when reading the paragraph there about work capacity and what I said about her incapacity for work it sort of makes perfect sense to me.”

(See T57 L20–T58 L18.)

45        In his first report, Mr Westh was of the opinion that the plaintiff presented with “chronic low back pain with the features of a chronic pain syndrome” (see p.117 of Exhibit B). He proffers the opinion that the plaintiff initially sustained “a lower back strain injury with possible aggravation of underlying degenerative changes in her spine, however it is not possible to be more precise with the original diagnosis” (see p.117 of Exhibit B).

46        In his second report, Mr Westh notes that there has been “little change” in the plaintiff’s condition and that she presents with “chronic low back pain with associated left leg discomfort and there are features of a chronic pain syndrome” (see p.119 of Exhibit B). Mr Westh was of the opinion that as a result of her physical impairment she has reduced capacity to engage in social, recreational and domestic activities, and that it was likely that her constipation and urinary incontinence may be related to her medications or be multifactorial (see p.119 of Exhibit B).

47        In her report dated 22 October 2009 Dr Horsley diagnosed the plaintiff to be suffering from “mechanical back pain” with “an element of radicular pain down the left leg with some possible weakness of the left foot with no other radicular features” (see p.128 of Exhibit B). In particular, Dr Horsley considered the plaintiff to be suffering from a discal disruption at L4-5 and has ongoing physical impairment and disability which was likely to last into the foreseeable future, and, accordingly, “work restrictions” would apply, although she considered the plaintiff “would have great difficulty returning to work in any fashion” (see pp.128–129 of Exhibit B).

48        The plaintiff also relied on a report from the consultant psychiatrist Dr Paul Kornan who examined her on 17 December 2007 at the request of the agent of the defendant. His report is dated 18 December 2007 and is Exhibit C. At the time of his examination, Dr Kornan diagnosed the plaintiff to be suffering from “major depression in which there is some suicidal ideation”. He considered that from a psychiatric viewpoint there was no limitation to the plaintiff’s daily activities of living, but her social functioning had been affected, with social withdrawing from activities. In particular, he considered her psychiatric condition to have “stabilised” and that “currently” her psychiatric state would prevent her from working.

49        The defendant had the plaintiff medico-legally examined by the following doctors:

(a)	the consultant in occupational medicine, Dr Ralph Poppenbeek, on 30 March 2006 (see report dated 30 March 2006 at p.8 of Exhibit 3);
(b)	psychiatrist Dr Chris Grant on 19 July 2006 (see report dated 19 July 2006 at p.11 of Exhibit 3);
(c)	psychologist Dr Simon Kennedy on 27 June 2007 (see report dated 4 July 2007 at p.15 of Exhibit 3);
(d)	consultant orthopaedic surgeon Mr Brian Davie of 23 July 2007 (see report dated 26 July 2007 at p.24 of Exhibit 3);
(e)	psychiatrist Dr Timothy Entwisle on 14 August 2007 (see report dated 15 August 2007 at p.29 of Exhibit 3) and on 24 September 2009 (see report dated 1 October 2009 at p.34 of Exhibit 3);
(f)	consultant occupational physician Dr David Fish on 18 December 2007 (see report dated 18 December 2007 at p.38 of Exhibit 3);
(g)	physician Dr Andrew Jakobovits on 1 August 2008 (see report dated 1 August 2008 at p.43 of Exhibit 3);
(h)	consultant urologist Dr David Kennedy on 14 February 2008 (see report dated 14 February 2008 at p.45 of Exhibit 3);
(i)	consultant orthopaedic surgeon Mr Michael Dooley on 22 October 2009 (see report dated 12 November 2009 at p.55 of Exhibit 3).

50        Dr Poppenbeek was of the opinion that examination findings were suggestive of “significant non-organic input” but “the pain reported is consistent with the radiology”. Even at that time (30 March 2006) the plaintiff was taking about six to eight Panadeine Forte a day, and occasional Valium. Although he thought there was a work contribution to an aggravation of degenerative changes at L4–5 and L5–1, he noted the development of depression and of a chronic pain syndrome.

51        Dr Chris Grant was of the opinion that the worker suffered an adjustment disorder with depressed mood arising secondary to a physical injury in June 2005, and, as the date of his examination, she had no capacity for employment.

52        Dr Simon Kennedy was of the opinion that the plaintiff suffered from an adjustment disorder with mixed anxiety and depressed mood with severe symptomatology, including suicidal ideation.

53        Mr Brian Davie, was of the opinion that although the plaintiff suffered from non-specific back and leg pain, probably discogenic in origin, she also suffered from “anxiety and depression”. He noted that there was not a lot to find neurologically, and the x-rays were “consistent with normality”. He considered “psychosocial factors” are important in the continuation of her symptoms, and that the chances of her returning to work are “fairly remote”.

54        When first seen on 14 August 2007, Dr Entwisle was of the opinion that the plaintiff suffered a major depressive illness and a chronic pain disorder which was related to her work, and following on from her low back injury. He considered that she would have “some capacity for employment for suitable duties”. However, when seen on 24 September 2009, he was of the opinion that the plaintiff “does not present with a current psychiatric condition”. He does state in his report dated 1 October 2009 that:

“Ms Boric is a cause for concern. She continues to use large amounts of Panadeine Forte which are clearly damaging to her health. She continues to smoke forty cigarettes a day. She leads a passive lifestyle and is making little in the way of inroads into any recovery. At no stage during the interview did she mention the word ‘pain’, nor did she describe any symptoms in regard to her physical abilities in that respect.”

(See p.37 of Exhibit 3.)

55        Dr David Fish was of the opinion that the plaintiff had suffered an aggravation of lumbar spondylosis with no evidence of radiculopathy, and urinary retention. Essentially, Dr Fish examined the plaintiff for the purposes of an AMA assessment which is not particularly helpful to the issues to be resolved in this matter.

56        Dr Jakobovits noted that the plaintiff had been taking up to ten Panadeine Forte a day, and as a result has developed “quite severe constipation over the last three years”, and that “liability for the constipation has been accepted”.

57        Mr David Kennedy was of the opinion that the plaintiff suffers from bladder instability in the form of frequency, urgency, and urgency incontinence. He noted that her urinary symptoms followed a back injury at work. In particular, he states:

“Mrs Boric’s urinary symptoms commenced soon after the accident in the form of frequency. The symptoms became worse and over the last 6 to 8 months she has had frequency with urgency and urge incontinence, requiring her to wear incontinence pads. I believe her bladder symptoms are related to the back injury. There is a close temporal relationship to the accident. There was no prior history of any urinary symptoms. There is no evidence of vaginal prolapse and there was no history suggesting urinary infections.

The aetiology of her urinary symptoms is I believe related to a number of factors. Mrs Boric is severely depressed and has had suicidal thoughts. She is on very large doses of Panadeine Forte and Efexor. Such urinary symptoms have been reported following these medications. Although it is not possible to prove that her urinary symptoms are related to her depression and anxiety and the medication required to manage this condition, it is also not possible to say such factors are not related to her urinary symptoms.”

(See p.48 of Exhibit 3.)

58        Mr Michael Dooley was of the opinion that the plaintiff suffers “on balance” an aggravation of underlying degenerative disc disease of the lumbar spine. However, he goes on to state:

“One however cannot explain constant ongoing pain four and a half years after the episode on the basis of an organic injury alone. I believe that Mrs Boric has developed a chronic pain syndrome. The constancy and intensity of her low back pain are out of proportion to the injury sustained and to the degree of underlying degenerative disc disease. I believe that in association with her chronic pain syndrome, Mrs Boric has developed significant depression. She has been treated appropriately in this regard. In my view there is no further specific orthopaedic treatment that should be instituted.”

(See p.57 of Exhibit 3.)

59        Further, Mr Dooley was of the opinion that the plaintiff would be “unfit to undertake employment”, in part relating to her orthopaedic condition, but “in the main relating to her psychological reaction to injury and/or pain, i.e. her chronic pain syndrome” (see p.58 of Exhibit 3).

Analysis of the Evidence

60        It is perhaps appropriate to initially make reference to the demeanour, presentation and veracity of the plaintiff. Counsel for the defendants submitted in his closing address that the plaintiff was an “unreliable witness” and that the court should be “extremely careful whether you accept much of what she says at face value, at least in the absence of some other objective evidence or corroboration”. Further, it was submitted that questions of the veracity of the plaintiff “loom extremely large” when one determines claims under paragraph (c) of the definition of serious injury (see T109 L19–27).

61        To make good such submission, counsel for the defendants referred to the evidence in relation to the weight of the trolley and the change of her evidence in respect of various matters from the first affidavit to the second affidavit, which was brought about, it was said, by the plaintiff becoming aware of the response material served by the defendants on the plaintiff.

62        I accept the proposition that if I should so find that the plaintiff was not a credible witness, such a finding would throw doubt on the reliability of medical opinions based on histories given by the plaintiff to the various doctors. This is perhaps more critical in matters dealing with psychiatric injuries, as such injuries are very much reliant on the plaintiff giving an accurate account of her complaints and symptoms – more so than with organic injuries which have the potential to be assessed, at least in part, by such things as x-rays and the like (see generally Barneveld v Hume City Council [2004] VSC 350, a decision of Redlich J delivered 10 September 2004, at paragraphs [18]–[25]). However, in the event that I formed an unfavourable view as to the credibility of the plaintiff, it is incumbent on the court to assess any independent or objective evidence said to support the case of the plaintiff (see Forder v Hutchinson [2005] VSCA 281, and in particular at paragraph [42] per Nettle JA).

63        The plaintiff gave her evidence with an extremely flat affect, seemingly totally obsessed with the amount of pain that she said she was experiencing. At no time did she break down, and indeed handled herself reasonably well under cross-examination, in the sense that she seemingly understood all questions and responded to same in an appropriate way. When cross-examined about the trolley and her change of evidence in the second affidavit, the plaintiff had, in my view, a slightly cavalier attitude, in that her experience of pain was the predominant matter, and that in relation to the weight of the trolley she relied on others who told her the weight (although she accepted ultimately that the weight had never been anything like 200 kilograms), and, in relation to the change of evidence, she only wanted the court to understand that her lifestyle and social activities had been significantly reduced.

64        On balance, I do have some concerns about the credibility of the plaintiff, and accordingly assess her evidence with some caution.

65        There is no particular issue between the parties that the plaintiff suffered a compensable low-back injury on or about 14 June 2005 during the course of her employment with the first defendant. Indeed, contemporaneous medical opinion would support that such an event occurred. Accordingly, I do find that the plaintiff suffered a compensable low-back injury on or about 14 June 2005.

66        The nature of that back injury was most probably an aggravation of some pre- existing degenerative change, consistent with the views of Dr Poppenbeek, Mr Michael Dooley, Mr R. Westh, and the general practitioner Dr Fountain. Although Dr Horsley considers the plaintiff to be suffering from a discal disruption at L4-5, I tend to the view that, to the extent that there is any back injury, it is limited to an aggravation of degenerative changes, which is also more consistent with the view of the treating neurosurgeon, Mr Xenos, who thought her radiology was mild and did not correlate well with her pain symptoms, and the opinion of Mr Davie, who thought the x-rays were consistent with normality and not much to find neurologically.

67        Whatever the precise diagnosis of the back condition may be, such condition has been, from early days, subsumed by graphic complaints of pain. In particular I refer to the evidence of Mr Xenos, who treated the worker in early 2006 and commented that “we are dealing with chronic pain here”, and the evidence of Dr Clayton Thomas that when he examined the plaintiff on 15 May 2007 there were a number of non-organic components, and he was unable to determine the nature of any underlying organic problem. Further, when he re-examined the plaintiff on 27 August 2009 he reports in part that he was unable to determine the underlying organic problem (if there be one), as it is “significantly dwarfed by the emotional consequence”. All the occupational physicians and orthopaedic surgeons, with the possible exception of Dr Horsley, make reference to either a chronic pain syndrome, psychosocial factors, or non-organic factors.

68        Taking all that evidence into account, I am not persuaded that the plaintiff suffers a long-term impairment of her low back, and, if I be wrong about that, I am unable, on the available evidence, to be satisfied what organic consequences have been caused, or contributed to, by such low-back impairment. It is to be noted that the court must not take into account psychological or psychiatric consequences of an injury for the purposes of paragraph (a) of the definition of serious injury – these can only be taken into account for the purposes of paragraph (c) of the definition (see generally Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649, Shock Records v Jones [2006] VSCA 180; and Zivolic v Hella Australia Pty Ltd [2007] VSCA 142).

69        Accordingly, the plaintiff fails in establishing a “serious injury” within the meaning of paragraph (a) of the definition of serious injury.

70        In relation to the application under paragraph (c) of the definition of serious injury, I wish to make certain comments about some of the evidence:

(a)

I give very little weight to the opinions expressed by Dr Weissman in his reports relative to his consultations on 14 November 2008 and 12 August 2009. Although I accept that when he examined the plaintiff for medico- legal purposes, he had no knowledge or recall of being a member of a Medical Panel which examined the plaintiff in February 2008, there is no material to explain the difference in opinion from February 2008 to 14 November 2008 and later on 12 August 2009. In this respect, I have formed the view that, as Dr Weissman was the only psychiatrist on the Medical Panel, he would have played a major role in the formulation of the psychiatric diagnosis – “major depression disorder and a chronic pain disorder”, and the opinion in relation to work capacity – “the worker has no present inability arising from an injury such that she is not able to return to her pre-injury employment”. Although Dr Weissman diagnosed the plaintiff at the times of his medico-legal examinations to be suffering from a major depressive disorder with suicidal ideation with significant pain focus and pain preoccupation, a diagnosis which he said was similar to the one expressed in the Medical Panel’s opinion, there is no explanation as to the change of opinion in relation to capacity. In fairness to Dr Weissman, he makes the reasonable point that he now does not have access to the material which he had available at the time of making his Medical Panel opinion in relation to capacity. Be that as it may, the face value of the evidence gives rise to an inconsistency and, accordingly, diminishes the opinions expressed by Dr Weissman after the medico-legal examinations.

(b)

In respect of the evidence from Mr David Kennedy, the urologist who examined the plaintiff on 14 February 2008, the submission was made by the defendant that his opinion rose no higher than a “possibility” that her urinary symptoms are related to her “depression and anxiety”, and accordingly the evidence in respect to this issue was described by counsel for the defendant as “paltry” (see T120 L26–29). I refer to Forder v Hutchinson [2005] VSCA 281, at paragraph [47], where Nettle JA, with whom Maxwell P and Habersberger AJA agreed, stated:

“To the contrary, the law is that even where medical opinion evidence goes no higher than that an event is capable of being a possible cause of an observable medical condition, it may still be inferred upon the totality of the evidence that the event was a cause of the condition. As Mason J put it in Tubemakers of Australia v Fernandez:[1]

… In drawing such an inference [the judge] was entitled to have regard, in addition to the matters referred to by [the expert] in his evidence, to other significant circumstances: (a) that before the [event] the [appellant] had suffered no disability; (b) that the condition made its appearance shortly after the [event]; and (c) that no alternative cause was established or indeed suggested in evidence. The combination of these circumstances, taken together with [the expert’s] evidence, provided in my opinion, a sufficient basis from which the [judge] could draw an inference favourable to the [appellant].”

On the available evidence, I infer as a matter of probability that a cause of the incontinence suffered by the plaintiff is her “depression and anxiety and the medication required to manage this condition”.

[1] (1976) 10 ALR 303

71        After considering all the evidence, I find that the plaintiff has suffered a mental or behavioural disturbance or disorder which is a consequence of the injury suffered by her on 14 June 2005 during the course of her employment with the first defendant. The nature of this condition is most probably a major depressive disorder complicated by a chronic pain disorder. Her condition has sometimes been referred to as an adjustment disorder, but what is manifest in all the descriptions of her condition is her focus on pain (see for example the evidence from her treating psychiatrist). I reject the opinion of Dr Entwisle expressed in his last report that the plaintiff “does not present with a psychiatric condition”. Curiously, Dr Entwisle does note that the plaintiff is a “cause for concern”, using large amounts of Panadeine Forte. In coming to the finding that the plaintiff does suffer a mental or behavioural disturbance or disorder, and bearing in mind my earlier comments in relation to the credibility of the plaintiff, I refer to the following matters which assist me coming to such a view:

(a)	As I have already noted, her presentation during the court proceeding was one which could be only described as being pain-focused.
(b)	No doctor, including Dr Entwisle, has suggested that the plaintiff is malingering or consciously misleading in any way.
(c)	A common thread throughout the treatment of the plaintiff has been her excessive intake of medication, and indeed, as noted by Dr Entwisle, such a concern continues. On the material, it does seem that there have been appropriate and genuine concerns about the plaintiff’s excessive medication, which would support, in my view, that as far as the plaintiff is concerned she is suffering chronic and ongoing pain for which she is seeking relief.
(d)	Furthermore, Dr Jakobovits gives some objective support for such a view when he expresses the opinion that the severe constipation suffered by the plaintiff is most probably explained by the excessive intake of Panadeine Forte medication. In a similar way, as I have already noted, Dr Kennedy, although noting that the diagnosis of bladder instability was made on the history given by the plaintiff, did note the presence of incontinence at the time of examination. If such be the case, a cause of such incontinence, as I have already indicated, is her condition and the medication required to manage that condition.
(e)	Other than the short video shown to me, there is no other video surveillance calling into doubt the credit of the plaintiff. Having noted that, I do appreciate the submission of the defendant that it was the combination of the video and the change in evidence from one affidavit to the other which caused concerns for the credibility of the plaintiff.

Accordingly, I am of the opinion that in evaluating the totality of the evidence, I can form the view that the plaintiff suffers a mental or behavioural disturbance or disorder which impacts on every aspect of her day-to-day activities.

72        Counsel for the defendant also submitted that, if such a condition was present, an issue arose as to its “permanency”. I find that such condition is “permanent” within the meaning of the Act, and in particular refer to the period of time that she has suffered such condition, and indeed the evidence of her treating doctors.

73        Again, assessing all the evidence, I am persuaded that the permanent mental or permanent behavioural disturbance or disorder is “severe”, in that the pain and suffering consequences or the loss of earning capacity consequences, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, can be fairly described as being more than serious to the extent of being severe. In forming such a view, I take account of the following matters:

(a)	As I have already indicated, I accept the complaints of the plaintiff that she experiences chronic pain which impacts on every aspect of her day- to-day activities;
(b)	She continues to receive medication from her treating general practitioner, and also continues to see a psychologist, Dr Strubel. Such treatment has been ongoing since 5 July 2006.
(c)	Given her condition, I am of the opinion that she is totally and most probably permanently incapacitated for employment.
(d)	I refer to s.134AB(38)(i) of the Act, which states:

“The physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise.”

Accordingly, I am of the opinion that the incontinence and constipation are also consequences of her mental or behavioural disturbance or disorder.

74        Accordingly, I am satisfied that the plaintiff has suffered “pain and suffering” and “pecuniary loss” consequences within the meaning of the narrative test. Furthermore, bearing in mind my finding that the plaintiff is totally and probably permanently incapacitated for work, I also find that the plaintiff has discharged her onus in satisfying the requirements of s.134AB(38)(e)(i) and (ii).

Conclusion

75 Pursuant to s.134AB(16)(b) of the Act, I grant leave to the plaintiff to bring proceedings for recovery of damages in respect of “pain and suffering” and “pecuniary loss” as a result of the injuries suffered by her during the course of her employment on 14 June 2005.

76        Leave is given on the basis that the plaintiff has discharged her onus in satisfying the court of the requirements of paragraph (c) of serious injury, with the court noting that the plaintiff has not discharged her onus in relation to paragraph (a) of the definition of serious injury.

77        I will hear the parties on the question of costs.

- - -