Bozic v Bartter Enterprises Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT GEELONG

COMMON LAW DIVISION

No. 10128 of 2009

STANA BOZIC	Plaintiff
v
BARTTER ENTERPRISES PTY LTD	Defendant

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JUDGE:	OSBORN J
WHERE HELD:	Geelong
DATE OF HEARING:	19-26, 31 August, 1 September 2010
DATE OF JUDGMENT:	28 October 2010
CASE MAY BE CITED AS:	Bozic v Bartter Enterprises Pty Ltd
MEDIUM NEUTRAL CITATION:	[2010] VSC 488

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ACCIDENT COMPENSATION – Workplace injury – Negligence – Dispute as to extent of injury – Injury to discs of the lumbar spine – No neural compromise – psychological reaction - Assessment of damages – Pecuniary loss damages – Pain and suffering damages.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Harrison SC with Mr A MacNab	Petersons
For the Defendant	Mr J Tebbutt with Miss K Galpin	Wisewould Mahoney

TABLE OF CONTENTS

Introduction......................................................................................................................................... 2

Liability................................................................................................................................................ 4

The plaintiff’s evidence.................................................................................................................... 5

Drago Bozic......................................................................................................................................... 9

Surveillance and incidental observation evidence.................................................................... 10

Medical opinion relied on by the plaintiff.................................................................................. 12

Dr Waldemar Bogacki................................................................................................................ 12
Dr Kevin Threlfall....................................................................................................................... 14
Dr Michael Vagg......................................................................................................................... 18
Dr John Black............................................................................................................................... 25
Dr Gerald Mathews..................................................................................................................... 26
Mr David McClure...................................................................................................................... 27
Summary of the treating doctors’ evidence............................................................................ 28

Further specialist medical opinion relied on by the plaintiff.................................................. 29

Dr Anthony Kam......................................................................................................................... 29
Mr Brian Barrett........................................................................................................................... 31
Mr David Brownbill.................................................................................................................... 39
Mr Russell Miller........................................................................................................................ 43
Additional psychiatric opinion................................................................................................. 44

Opinion evidence relied on by the defendant........................................................................... 45

Dr Nigel Wood............................................................................................................................ 45
Mr John O’Brien........................................................................................................................... 47
Mr Clive Jones............................................................................................................................. 49
Mr Graeme Brazenor.................................................................................................................. 50
Mr Peter Battlay........................................................................................................................... 55
Professor George Mendelson.................................................................................................... 55

The extent of the plaintiff’s injury................................................................................................ 56

Conclusion......................................................................................................................................... 60

HIS HONOUR:

Introduction

The plaintiff is a 43 year old woman born on 1 September 1967 who migrated to this country from Bosnia in 1995. She came here with her husband whom she had married in 1985 and their three children who are now aged 24, 22 and 16.

After their arrival the plaintiff’s husband undertook an English course and then after about a year obtained work with the defendant (one of what was then known as the Steggles group of companies). His work involved the processing of chickens.

The plaintiff had worked as a process worker packing meats and small goods in a factory in Yugoslavia between the ages of 15 and 20. She initially looked after her children following immigration but in 2003 she also went to work at the defendant’s factory.

On 6 December 2004 at about 10 am she was working making boxes. She was required to take the boxes from a pallet on which they were packed flat and to fold them before placing them on a machine which automatically taped them. The machine jammed and failed to properly cut the tape on three boxes. She then stopped the machine and walked around it to the three boxes in question in order to manually cut the tape. As she went back to her working station a wooden pallet which had been left upright next to a stack of other pallets fell and struck the side of her right leg below the knee. She twisted away in an attempt to avoid contact and then became aware of pain across her lower back and in her right leg. Her workplace was noisy and initially she was not sure of her injuries, but her leg ‘gave up’ momentarily after she recovered from the initial pallet fall. She did not feel well however and reported to her supervisor. She was sent to the sick bay where she was treated with ice and rest. She returned to work briefly in a meat packing section, but after further rest was ultimately taken home by her husband at the end of the shift at 1:30 pm. She was sent to a Doctor Hamza who was retained by the defendant. He told her she should rest, but that if the defendant’s Occupational Health and Safety Manager (‘OH&S Manager’), Leanne McPherson, told the plaintiff she had to return to work, the plaintiff must return. The plaintiff’s husband subsequently received a call at home from the OH&S Manager requiring the plaintiff to return to work the following day. When she went back to work she was given light duties within the office. She does not speak English and she had never worked in an office. She attempted to do the work but could not. She subsequently tried to come back to work in January 2005 and was given work sorting and folding gloves in pairs which had been through a washing and drying process. She could not continue with this work because it required her to bend into the drum of a dryer. She has not worked since 24 February 2005.

The plaintiff’s case is that she has suffered three categories of injury. First, she suffered injury to her leg. Bruising to the side of the right leg below the knee was followed by the movement of a haematoma behind the knee and up the back of the lower thigh. A varicose vein condition also developed. This has subsequently been satisfactorily treated with surgery. Secondly, the plaintiff suffered injury to the two lower discs of the lumbar spine. This injury is said to have resulted in ongoing low back pain and some referred pain in the legs particularly the right leg. Thirdly, as a consequence of the second injury, the plaintiff has suffered a psychological adjustment disorder and associated anxiety and depression.

It is the nature and extent of the second injury which is the principal subject of contention in this case. Evidence relating to that issue was called from a series of treating doctors and from a number of medico-legal experts. I have ultimately come to the view that the weight of the evidence favours the opinion of Mr David Brownbill as elaborated in his evidence. In his view the probability is that the plaintiff has suffered lumbar intervertebral disc derangement and discogenic pain following aggravation of pre-existing, asymptomatic lumbar spine degenerative changes in the incident of 6 December 2004. He further considers that the plaintiff has also developed a marked emotional reaction to the pain caused by the disc injury with consequent depression and anxiety.

The nature of that reaction was the subject of a series of psychiatric opinions. I accept the view elaborated in evidence of Dr Gerald Mathews, Consultant Psychiatrist, that the plaintiff has suffered from an adjustment disorder since the time of her initial injury which has been made worse by ongoing symptoms of pain, lack of progress in her treatment, and the failure to resolve her claim for compensation. The plaintiff has sleeping difficulties, constantly lowered mood with frequent tearfulness, cognitive compromise, lack of energy, social withdrawal and little emotional resources.

She has been rendered vulnerable to the worsening of the adjustment disorder by her background which includes experience of the Balkan War and vulnerability as an non-English speaking immigrant.

Before returning to the questions of medical diagnosis and prognosis which were the subject of fundamental contest in the hearing of this matter, I shall first deal with the issue of liability and then with the evidence of the plaintiff as to the subsequent course of events leading to her current situation.

Liability

Although counsel for the defendant at one stage indicated to the Court that liability was not the subject of real contest, the issue was never formally conceded.

I am satisfied that the plaintiff suffered injury as a result of an unsafe system of work when a pallet that had been stored vertically fell against her leg.[1] It is apparent from the defendant’s own documentation that the pallet should not have been left in the vertical position and that it need not have been in this position for the purposes of the satisfactory operation of the factory. The pallet was wooden and relatively heavy, being of a weight which, as the plaintiff stated, required two persons to lift.
[1]In her evidence in chief the plaintiff initially stated through the interpreter ‘she fell over’, giving rise to ambiguity over who or what fell. It became clear however that it was the pallet that fell over. The same confusion appears in at least one of the histories taken by medical practitioners.

The plaintiff was injured as a result of the breach of the defendant’s non-delegable duty of care to its employees to take reasonable care to avoid exposing her to unnecessary risk of injury.[2]
[2]Czatyrko v Edith Cowan University (2005) 79 ALJR 839, 842, [12]; McLean v Tedman (1984) 155 CLR 306, 313.

I am also satisfied that at the time of the incident in which she was injured the plaintiff was not only struck on the side of the leg but twisted her back as she was struck. This said, I accept that the injury to the back did not involve great force. I accept Mr Brownbill’s opinion that but for a pre-existing degenerative condition of the spine it is unlikely that she would have suffered ongoing injury to the back.

The plaintiff’s evidence

Mrs Bozic gave evidence of the circumstances of her injury as I have summarised them above. She says that when she got home after the accident her back and leg were hurting her very much. She says she would be happy if she could work again.

Dr Hamza recorded in a letter to the Geelong Hospital dated 13 December 2004 ‘the main issue now is the pain in her lower back’.

He had advised the defendant in writing on 9 December 2004 ‘x-ray done no sign of fracture, so the diagnosis is muscular strain and bruises.’ He answered a series of written questions indicating that at that time the plaintiff had no capacity for pre-injury employment duties and no capacity for modified or substituted duties. In answer to the question ‘likely duration of any incapacity’ Dr Hamza noted ‘needs modified duties one week.’ Dr Hamza advised that the plaintiff should ‘continue on pain control, rest and elevation if possible to the leg.’

I do not accept that the advice contained in the letter of 9 December 2004 is consistent with the evidence of Mrs Bozic’s OH&S Manager that she was told by Dr Hamza Mrs Bozic was able to return to work on modified duties immediately after the accident. This is not what the letter says. The questions directed specifically to this issue are answered ‘no’. Modified duties were required in one week’s time.

In turn I accept Mrs Bozic’s evidence that she understood, as a result of a phone call received by her husband from her supervisor, that she was required to return to work prior to the time she had understood Dr Hamza had advised was appropriate.

It is apparent this circumstance greatly distressed Mrs Bozic and may be seen as first precipitating a strong feeling on her part that her injury was not being acknowledged by her employer when it should have been. This complaint was voiced to Mr O’Brien on 25 January 2005. I regard this as a significant initiating element in her subsequent reactions to the course of her treatment.

I also accept that Mrs Bozic did not cope with the office duties she was offered on return to work, first because of continuing pain in her back and secondly because of her lack of English and inability to communicate well with those supervising her.

I accept this despite Ms McPherson’s evidence that the work essentially involved collating drivers’ delivery dockets in numerical order. It is apparent the plaintiff had never done clerical work of any type before. Her account of her return to work was circumstantial and confirmed by Ms McPherson in material respects eg Ms McPherson agreed she asked to look at the plaintiff’s leg.

The plaintiff says that after some three days she tried to stay in bed but received a call from work and was again required to come in, this time in a taxi supplied by the employer.

After having seen Dr Hamza, Mrs Bozic sought treatment from Dr Bogacki, a Polish Australian doctor with whom she could communicate in Serbian. Prior to the accident her health had been generally good but she had seen Dr Bogacki after a motor car collision in which the car she was driving was struck from the rear in August 2003. This incident caused her some generalised pain, but she required no time off work or continuing treatment as a result of it.

Before the accident in December 2004 she did not suffer from back pain or pain in the leg. She had passed a medical check-up before starting work with the defendant.

She commenced using a walking stick in December shortly after the injury. She was referred by Dr Bogacki to Dr Threlfall. She was treated with traction but this did not help. At some point she started using two walking sticks. She was referred to Dr Muir at the Barwon Health Pain Management Clinic (‘the Clinic’) and had injections in her back. Her condition did not improve.

She attempted to return to work in January 2005, but was unable to perform the duties offered her and has not worked since. The evidence of the OH&S Manager is that the plaintiff presented with full incapacity certificates and by reason of these her services were terminated on 18 May 2006.

In her home the plaintiff now uses a computer chair to lean on and to sit on. When she goes out into the garden she uses a stick and since late 2008 when she leaves the house she uses a wheelchair.

At the moment she suffers pain mostly in the lower back. Her leg is a ‘bit numb’ but ‘OK’. The pain in her back fluctuates and is aggravated by movement. It is constant but sometimes not severe. She sleeps badly. She cannot walk up or down stairs.

The plaintiff says that since the operation on her veins, her leg does not hurt as much. It is not so ‘numb’. She currently takes a series of medications for pain management - hydromorphone (Jurnista), mirtazapine and duloxetene (Cymbalta). She has sought referrals to a series of medical practitioners including psychiatrists. She sought a referral to Dr Mathews after her father died in Bosnia and she was distressed at her inability to attend the funeral.

Before the accident she was a happy person, but now she feels ‘very bad’. She used to attend the Serbian Orthodox Church and the Serbian Social Club in Geelong and attended soccer games. She no longer does so. She goes out less often with her husband for social visits than she used to. Her children and husband need to help her with the housework and the gardening. Her sex life has been badly affected.

She cannot undertake activities that involve bending, lifting or twisting. She says she has not driven since the accident (a matter contested by the defendant).

Prior to the accident she would work overtime whenever asked to and enjoyed working. She says she would have worked until 64 or 65 but for the accident. She says that she cannot do the sort of physical work she previously did and could not sit for a long time doing office work.

In answer to cross-examination she said she had been treated at the Barwon Pain Management Clinic since 2005. The pain in her back worsened after treatment with injections. She has used a wheelchair since 2008. The problems with her varicose veins were alleviated by surgery performed by Mr McClure in February 2009.

The plaintiff does not do much during the day. Her cooking is limited to simple tasks. She cannot bend to brush her teeth and has trouble using the toilet. She showers only once a week. She experiences shooting pain like pins and needles in her lower legs, mostly when she is sitting down or standing for a long period of time. This happens less often than it used to. Her main problem is constant pain in the back and a little in the hip if she goes up or down stairs. She has short periods of minimal pain in the back but then the pain returns.

When she was treated at the Pain Management Clinic she was prescribed a series of medications and given exercises to perform. She was also referred to Dr Black, a psychiatrist. She received spinal injections from Dr Vagg and Dr Muir, but they gave her no relief.

Her sexual relationship with her husband has deteriorated since her symptoms worsened in 2008.

She described what occurred in 2008 (through an interpreter) as follows:

I felt very, very terrible pains in the back. I felt that I don't have feeling in my legs. I didn't want to tell anybody, I didn't told even my family in the house. I try to get up, and I couldn't do it, I fell. My son came to my help and helped me to get up. I told him to leave me, that I am going to be okay. In the meantime my husband arrive. He asked me "What happen, Stana?" I said "I cannot stand on my legs." He didn't told me anything, he just went outside and he called the first aid. I told him not to call because it's going to be better, probably. He said that he cannot watch me like that any more. In the meantime the first aid came, so my situation come to be worser and worser. But before that happen, in September, I am not sure that it's September, maybe September, I felt that I am getting worser. I went to Dr Muir and I told him. I didn't told anybody in my family in the house. He said that maybe inside move something and he told me to go for the X-ray again. When the X-rays come back, they told me that something in the back didn't stuck together, but I don't know what because nobody told me what is happened or what went wrong, they just said that something's wrong in there. And after that, I won't be able to walk and I end up in the wheelchair. [3]

[3]Transcript of Proceedings, Bozic v Bartter Enterprises Pty Ltd (Supreme Court of Victoria Trial Division, Osborn J, 20 August 2010), 104-5.

Since the plaintiff’s condition worsened she has had no active treatment other than medication. She still hopes to go back to work but she cannot at the moment. She has not undertaken any training courses or education to improve her English.

In 2005 and 2007 she had episodes of neck pain, but that has resolved after treatment with injections.

She agreed that in 2005 she saw Mr Siu, Dr Nigel Wood and Mr John O’Brien and says she co-operated with them as best she could.

She herself asked to see Mr Barrett after visiting a vascular surgeon with rooms close to his.

She thinks she did not drive her daughter’s black Holden Astra on 14 May 2009.

It was not put directly to the plaintiff that she was malingering.

Drago Bozic

The plaintiff’s husband gave evidence through an interpreter which was generally confirmatory of the evidence she herself had given. Mr Bozic is 47 years old and met the plaintiff in 1983. The marriage was registered in 1985. He described coming to Australia 10 years later to make a better life for their children. It is plain he is a man who works hard and is committed to his family.

Before her accident the plaintiff also worked hard. In addition to working for the defendant she did the bulk of the housework, tended a vegetable garden and lived an active social life. They had an excellent relationship.

Mr Bozic confirmed that following the accident the plaintiff was initially given a few days off, but he was told by the plaintiff’s supervisor, Leanne, that he had to bring the plaintiff back to work the next day (I should add that it is apparent his spoken English is not particularly good).

The plaintiff returned to work but complained to him of pain in the lower back and right leg. She experienced ongoing pain and saw a series of doctors but did not find help. Her condition worsened and she has used a wheelchair since November 2008. He said through an interpreter:

She was very unwell in the evening, she was feeling big pain, very big pain few days before that. She was crying. On that day she fall in the house, yes. I couldn’t look at her anymore, I didn’t know how to help her. I call the ambulance … after that they took her, carrying her from the house, they took her to the hospital. When she left hospital she came back with wheelchair. [4]

[4]Transcript of Proceedings, Bozic v Bartter Enterprises Pty Ltd (Supreme Court of Victoria Trial Division, Osborn J, 25 August 2010), 488.

When she is at home the plaintiff uses a computer chair to get around. She uses crutches in the garden and a wheelchair when she goes out.

She doesn’t go out the way she used to. She has pain and is not happy. She does very few domestic tasks. They seldom have sex. They had an investment property prior to the accident but had to sell it since the plaintiff ceased to work. The plaintiff’s relationship with her children has been adversely affected.

In answer to cross-examination he said he had not seen the plaintiff drive since the accident, but she had told him once she took one of their children to the station. The plaintiff does not sleep well. She does prepare simple foods such as soup and sausage rolls in the microwave.

Surveillance and incidental observation evidence

A private investigator gave evidence of surveillance of the plaintiff. The results of extended surveillance on 39 days over six years between 20 January 2005 and 22 August 2010 were limited.

On 7 May 2009 a dark-haired woman believed to be the plaintiff was seen briefly from a distance of 150 metres, standing without walking aids in the front doorway of the plaintiff’s home. The plaintiff was identified from a photograph.

On 14 May 2009 at about 2:00 pm the plaintiff was observed to drive a black Holden Astra into the Bozic property. At 2:36 pm a blue Ford Station Wagon driven by a male attended the same premises and the driver collected the plaintiff. She travelled to Smith Street, Fitzroy, where she was assisted into a wheelchair and wheeled into premises containing medical rooms. Subsequently she returned to the car from the premises in the wheelchair and was assisted getting into the car. The car returned to the plaintiff’s home and she was assisted to move from the car into the wheelchair.

No photographic evidence of these events was obtained and counsel for the plaintiff challenged the identification of her as the driver of the Astra as unreliable. The investigator was unaware of the appearance or existence of the plaintiff’s daughter so there was the possibility of mistaken identity and the observation was made briefly through the tinted windscreen of a motor vehicle as the car was driven past. On the balance of probabilities however I accept that the investigator did identify the plaintiff as the log kept at the time records.

The surveillance of the plaintiff otherwise did not demonstrate any activity on her part inconsistent with her evidence.

Mrs Price, a workmate of the plaintiff’s was also called to give evidence. She had worked for the defendant for 12 ½ years at Breakwater, where the plaintiff was employed, and knew the plaintiff for about six months before her injury at the end of 2004. In early February 2005 she saw the plaintiff with the plaintiff’s husband coming out of Centrepoint Arcade in Geelong early one Saturday morning. The plaintiff’s husband was carrying a vacuum cleaner and the plaintiff was walking normally. The witness walked past them as they got to their car and were putting things in it.

She also saw the plaintiff later in 2005 at a Sunday market at the Geelong Showgrounds. The plaintiff was standing with her husband and he gave her a walking stick that he had been holding. The witness saw the plaintiff standing looking at things on a shelf. She was standing with both hands on the shelf.

I do not place much weight on the fact that the plaintiff was observed to walk a short distance apparently normally on a Saturday morning in February 2005. Further the observations made at the Showgrounds are entirely equivocal.

The observations of the investigator of the plaintiff both driving independently and using a wheelchair on the same day in May 2009 are more substantially indicative of behaviour inconsistent with her asserted level of disability. Nevertheless the observation of driving remains one incident only in 39 days of surveillance and the plaintiff’s evidence is that the Holden Astra is usually driven by her daughter although it is registered in the plaintiff’s name.

The evidence as a whole including the surveillance evidence supports the view that the plaintiff’s life has been very materially constrained since she was injured. The observed incident of driving is however a circumstance which bears on the assessment of the medical evidence as a whole.

Medical opinion relied on by the plaintiff
Dr Waldemar Bogacki

Dr Bogacki gave evidence that he had treated Mrs Bozic as a general practitioner for at least 10 years. He saw her following a motor car accident on 27 August 2003 and diagnosed soft tissue injury. His records indicate that over the years he has also prescribed several scripts for contraceptives for Mrs Bozic and treated her for a series of health issues such as an ear infection and early prevention of osteoporosis.

When he saw the plaintiff on 9 December 2004 she had bruising on the external side of the right leg and complained of calf pain and pain in the right hip area. Dr Bogacki advised her to return to Dr Hamza, as the current treating doctor, for further treatment.

On 13 December 2004 Dr Bogacki referred her to Dr Threlfall, a doctor who specialises in rehabilitation. Dr Bogacki noted pain in the right leg up to the hip and lower back pain in his referral. In February 2005, Dr Bogacki’s records show that the plainitiff attended his clinic with bad varicose veins in the right leg. .

Dr Bogacki saw the plaintiff through 2005 for minor complaints but did not treat her for her back. In August 2005 she was referred to the Pain Management Clinic at Geelong Hospital at Dr Bogacki’s request by a physiotherapist at Dr Bogacki’s clinic.

Subsequently Dr Bogacki sought to support the plaintiff by explaining to her the results of ongoing consultations with other doctors including psychiatrists. In February 2007 his notes record a long consultation about worsening pain.

In November 2008 he recorded lower back pain such that the plaintiff ‘can’t walk, husband brought her in a wheelchair.’ Since then the plaintiff has presented to him either on crutches or in a wheelchair. In Dr Bogacki’s view the plaintiff’s condition has deteriorated during his consulting period. He does not believe she will be able to return to the workplace.

In cross-examination Dr Bogacki stated that his records were not as full as his original notes because of computer difficulties. The plaintiff has told him she needs a wheelchair because of pain associated with movement. His practice is to accept patients’ complaints first at face value in order to try and help them, but he added a person would have to be a ‘super actor’ to simulate such a condition for years and years. He said in re-examination he had never any reason to disbelieve the plaintiff in terms of her presentation to him.

The plaintiff has continued to obtain prescriptions for contraceptives since the accident, with the most recent prescription dated 24 August 2009.

Dr Kevin Threlfall

Dr Threlfall is a medical practitioner with a special interest in sports medicine. He first saw the plaintiff on 14 December 2004 after she was referred to him by Dr Bogacki. The plaintiff described a pallet falling against her right leg at work and twisting her back while trying to avoid it. She felt pain in the back and into her right leg. She was placed on light duties but told him subsequently she could not tolerate them.

When he first saw her, the plaintiff was distressed and complaining of pain. She limped and had bruising on the outer side of the right leg. On examination she was restricted in straight leg raising on the right side to 65 degrees. There was tenderness to palpation on the lower lumbar spine, extending to the right side and some diminution of skin sensitivity over the outer aspect of the lower right leg. Knee and ankle jerks were active and present. There was reduced power on dorsiflexion of right ankle and great toe. Pain on weight-bearing prevented testing of walking on heels and toes.

Dr Threlfall reviewed the plaintiff on 23 December 2004. She had been to physiotherapy but this had not helped. Her back pain was a little worse but her leg pain had reduced. He organised for an MRI to be undertaken.

He saw the plaintiff again on 29 December 2004. Pain persisted and she complained of loss of sleep. She was restricted in straight leg raising to only 20 degrees. The weakness in dorsiflexion of the right foot and ankle persisted.

Dr Threlfall reviewed the plaintiff again on 12 January 2005 and there was no improvement. Indeed, he has observed no subsequent improvement in her situation.

An MRI report obtained by Dr Threlfall on 9 February 2005 from St John of God Hospital stated:

Findings: The lumbar lordosis is retained as is disc height/hydration throughout the lumbar spine other than mild L5/S1 discal narrowing/desiccation.
The lower thoracic spinal cord caudal to T10 is of normal morphology and signal.
L5/S1: Minor non-compressive annular discal bulging with a small subjacent central annular tear is noted but no focal disc protrusion or nerve root compression is identified.
L4/5, L3/4, L2/3, L1/2: No focal disc protrusion/nerve root compression.
COMMENT
Minor non-compressive annular discal bulging of the L5/S1 disc with a small subjacent annular tear but no focal disc protrusion or nerve root compression is identified within the lumbar spine.

On 20 January 2005, she still complained of lower back pain with referral to the right leg extending to the foot. She had pins and needles extending down the right leg. On examination, straight leg raising was limited to 45 degrees on the right side and 80 degrees on the left. She complained of diminished sensation over the outer aspect of the left lower leg and a sense of hypersensitivity over the lateral aspect of the right foot.

There was a loss of power of dorsiflexion of the right ankle and some loss of plantar flexion.

A report from Dr Makas of Dr Bogacki’s clinic records that the plaintiff attended the clinic on 22 February 2005 with varicose veins in the right leg and a rupture in the vein behind the right knee. On 27 March 2005 she presented with a superficial thrombophlebitis of the right leg.

Dr Threlfall referred the plaintiff to Mr Siu, a neurosurgeon, who reported on 21 April 2005 in part as follows:

She complained of persistent pain in the right lower limb, with numbness. She said the pain has not changed since December last year, and out of a scale of 10 she would score it as between 5 and 6. However, she claims she can’t stand on the right leg. She said she had physiotherapy treatment from which she didn’t derive any benefit. An MRI scan done in February shows dessication at L5-S1, but no obvious disc prolapse.
I noted today she was using a walking stick, limping favouring her right leg. She was tender to palpation in the right buttock in the region of the sciatic nerve. She can tiptoe and can stand on her heels, though was reluctant to do so. She could hardly lift her left leg off the floor when standing on the right leg alone. All reflexes were present and normal.
I do not think this lady is a surgical candidate at all and suggest that perhaps she should see a rheumatologist for management of a probable soft tissue injury to the back.

Following Mr Siu’s recommendation the plaintiff was also seen by Dr Nigel Wood, a rheumatologist. Dr Wood was called to give evidence on behalf of the defendant and I shall return that evidence below. He did not identify a clinical basis for her symptoms.

In a report of December 2005 Dr Threlfall recorded he had unsuccessfully trialled a Transcutaneous Electrical Nerve Stimulation course with the plaintiff during 2005.

Dr Threlfall also made observations of a haematoma on the plaintiff’s right leg, which was associated with thickened tissues on palpation.

The plaintiff also told Dr Threlfall that Dr Bogacki had referred her to the Clinic.

As at December 2005 the plaintiff was using a crutch and was, in Dr Threlfall’s view, unlikely to be employed while this continued.

A further report in October 2006 recorded almost unchanged symptoms. Two reports from the Clinic recorded that she had been treated with nerve sheath injections by Dr Muir. A report from Mr Battlay indicated he considered the plaintiff had suffered soft tissue injury and a possible L5/S1 disc derangement. This was consistent with the symptoms Dr Threlfall had observed.

Dr Threlfall prepared another report in 2007. He had been seeing the plaintiff at four weekly intervals to provide certificates for workers’ compensation purposes. She continued to complain of similar levels of pain. He continued to certify her unfit for work. She reported collapsing and seeing Dr Bogacki on 9 March 2007.

Dr Threlfall prepared another report in June 2008. This records the prescription of hydromorphone (Jurnista) by Dr Vagg in 2007. Dr Threlfall had seen the plaintiff on a series of occasions in the preceding year. She had told him she was having psychological counselling at the Pain Management Clinic but it was of little assistance. Injection treatment had not helped her.

Dr Threlfall prepared a further report on 21 January 2009 which recorded advice of a further MRI report. It also recorded a proposed admission by Dr Muir for treatment by way of Ketamine infusions.

The plaintiff had been admitted to hospital following an episode of severe pain on 3 November 2008 which caused her to collapse. She said that following this Dr Bogacki arranged a wheelchair for her and she presented to Dr Threlfall in a wheelchair. She said she was unable to bear weight on her right leg directly.

In February 2009 Mr McClure operated on the plaintiff’s varicose veins. Dr Threlfall was of the view this condition was precipitated or aggravated by the injury to the right leg.

In March 2009 Dr Threlfall prepared a report reviewing his clinical notes and all the medical reports he had in his possession. He concluded in part:

So my opinion of this lady’s condition now is I believe that she does suffer from severe constant and disabling level of pain. In the absence of the information from Dr Muir demonstrating that this lady’s pain is discogenic in origin I am unable to identify any particular pathological basis for her pain.[5]

[5]Dr Kevin Threlfall, Medical Report, 18 March 2009, 6.

Dr Threlfall’s evidence is that ever since the first day the plaintiff saw him, she has presented as a person suffering from genuine pain.

He was provided with a copy of a report from Mr Barrett and stated that he was unable to say if Mr Barrett’s diagnosis was sound.

He expressed the view that Mr Barrett’s diagnosis might contribute to a positive attitude towards rehabilitation.

A further report of 16 March 2010 noted the results of reports from Dr Vagg and recorded that the plaintiff’s symptoms and level of activity had changed a little. Dr Threlfall regarded the plaintiff’s confinement to a wheelchair as a tragedy. He attempted to encourage her to increase her activity level. In his view her hope for the future depended on becoming more mobile. In his view there was no reasonable possibility of the plaintiff returning to the workforce.

In cross-examination Dr Threlfall confirmed he attributed a possible cause of the plaintiff’s varicose veins to the blow to her leg. He could not establish a physical cause for the plaintiff’s other symptoms. The plaintiff has told him she needs the wheelchair because standing causes pain and pins and needles into her leg. People can have quite severe pain as a result of disc injury with no objective findings present.

Dr Threlfall indicated that the second MRI report he has read does show disc damage but he is not an expert in this regard. He asked the insurer to provide a walking frame for the plaintiff but it declined to do so. He understands the plaintiff does push a chair around in front of her to try and get active. In his view it is not unreasonable for the plaintiff to have used a crutch on her left side.

A diagnosis may be helpful to a patient, but a prognosis which is not bright can be unhelpful. It may give the patient the concept of a broken back when this exaggerates the underlying condition.

Dr Michael Vagg

Dr Michael Vagg is a medical practitioner with specialist qualifications in rehabilitation medicine and pain medicine. He gave evidence by reference to a series of records from the Clinic.

He produced a multi-disciplinary assessment dated 7 October 2005 in which he participated.

It proposed the use of Amitriptyline, a tricyclic anti-depressant drug used for pain management, caudal injection treatment (an anti-inflamatory epidural injection), individual physiotherapy and psychological treatment.

A psychologist’s assessment records the plaintiff as having a flat affect, teary but receptive. She complained of lower back pain and pain down the leg, confusion over what was wrong, headaches and pain in the right side of the neck. The history of the injury and treatment were recorded. Impacts on the plaintiff were listed – spending the day pottering, broken sleep, family taking over her household roles but reluctantly, changed moods. She would like to know what is wrong and avoids activity that stirs up pain. She had been told by her GP that it was ‘in my head’ and was very upset by this. She tries to hide her feelings from family and friends. She got stressed but tried to keep it in check. Her medications are listed. Her vocational, recreational and family background are summarised. She felt like ‘in a jail’ when she tried to return to work and she wasn’t given help when needed. The summary of the psychological assessment records:

Mrs Bozic was seen with an interpreter. She is finding it very confusing because she doesn’t understand what is wrong and so doesn’t know what should be done or how to help herself. While she is doing little and her disability is high her sense of control and self-efficacy is not low [sic]. She is distressed and acknowledges that. She also recognises that the stress feeds back into her pain.

On 11 October 2005 Dr Vagg advised Dr Bogacki by letter that the plaintiff had a number of indicators pointing to a risk of chronic disability. On the basis of her history and findings on examination he suspected the plaintiff ‘probably has true discogenic pain from the L5/S1 disc.’

Dr Vagg explained in evidence that sinuvertebral nerve endings penetrate only a short distance into the outer part of a disc and are the only source of sensation in a normal disc. When the annulus fibrosis is disrupted this may stimulate the sinuvertebral nerve endings. The pattern of discogenic pain is generally that it is exacerbated by situations which increase pressure on the disc, such as sitting, coughing, sneezing, standing, etc. Such pain is generally perceived in the mid-back and may refer when severe. It is often described as dull thudding pain.

Dr Vagg believes the L5/S1 disc level was shown to be abnormal on MRI examination.

He relies on a combination of imaging consistent with clinical presentation over a period of time as being suggestive of discogenic pain.

There was no evidence of soft tissue injury to the plaintiff. In his view a small annular bulge on imaging at this level can be consistent with a painful internal derangement of the disc. The natural history of such lesions is to become less painful over 12 to 18 months. This is because generally the disc does not go on to evoke changes of central nerve sensitisation. Central nerve sensitisation refers to a group of changes which occur in the central nervous system, which can result in defective signalling of pain within the central nervous system. These, Dr Vagg believes, are a significant contributor to chronic pain. Dr Vagg further stated the plaintiff had non-anatomical weakness and altered sensation in the right leg. It was unclear to what extent this may reflect illness behaviour.

His initial advice to Dr Bogacki was that the clinic would see the plaintiff for follow-up treatment and caudal injection was proposed.

Dr Vagg wrote further letters to Dr Bogacki on 7 and 22 November 2005 recording treatment of the plaintiff directed to soft tissue pain resulting from the use of crutches. The plaintiff had responded well to injections.

On 20 December 2005 Dr Vagg recorded advising the plaintiff with respect to differences between chronic and acute pain. He noted her recent interaction with WorkCover appeared to have been particularly stressful. She had been very distressed at being told ‘there’s nothing wrong with you’. In his view her MRI findings and patterns of pain strongly suggested an internal disc derangement at L5/S1. He said further that with the levels of distress and psychosocial disability she was experiencing any successful medical treatment of the plaintiff would only address a minor part of the problem. He had sought to reassure her that although her back was painful it was not seriously damaged.

Dr Vagg explained in evidence that he often finds the level of pain a patient suffers depends not so much on what actually happens in somebody’s back as on what happens to them emotionally and socially.

Dr Vagg left the Clinic in early 2006 and did not recommence treating the plaintiff until February 2009. He gave evidence of the Clinic records relating to treatment provided by Dr Muir. In April 2006, Dr Muir undertook a procedure of epidural neuroplasty which attempts to free any scar tissue attaching to particular nerve roots. He injected the area with anti-inflammatory steroids.

On 29 August 2006, the plaintiff underwent a transforaminal epidural injection of local anaesthetic steroid.

A report from Dr Muir of 24 January 2007 recorded:

The multi-disciplinary assessment conducted at the Pain Management Clinic noted high levels of disability and distress, with significant secondary physical deconditioning. Our treatment plans, have been to encourage movement, stretching and to treat secondary anxiety syndrome, made modest progress. She has not gained substantial benefit from opioid or adjuvant pharmacotherapy, nor from the sacral iliac joint injection or the nerve root sleeve injection that have been conducted.
The patient may well represent a good candidate for a chronic behavioural pain management program …
In my opinion the secondary physical and psychological elements of her Chronic Pain Syndrome render her currently unsuitable for work. It is certainly not the case that this is a permanent state of affairs.

On 6 March 2007, the plaintiff underwent pulsed radiofrequency treatment of the L5/S1 foramen.

A report of 6 August 2007 noted no improvement. She had commenced medication with hydromorphone at the end of March 2007. She was under ongoing review by clinical psychologists and was also being tried on other medication. Dr Muir stated:

On review of notes by psychologist and physiotherapist it is clear that the patient has become more distressed and more depressed by her ongoing symptoms and also by the situation and life circumstances in which she finds herself with. She has been prescribed individual cognitive behavioural therapy and a paced exercise program with focus on improving her gait pattern. For the present this maintenance therapy remains the mainstay of her support at the Clinic …

Dr Muir continued to advise Dr Threlfall of appropriate medication through 2007 and 2008. In July 2008 he recorded that the plaintiff had attended the Clinic consistently over the previous 12 months. She had seen the clinical psychiatrist, Dr Black. Dr Vagg had also performed a lumbar adhesiolysis procedure attempting to treat presumed adhesions to the lower nerve roots of the spinal cord and instil epidural steroids. This was also unsuccessful. She continued with medication.

On 7 November 2008 the plaintiff presented at the Geelong Hospital with lower back pain problems. The Emergency Department recorded her history. On examination she was tender over the right sacroiliac joint. She had impairment of normal hip flexion. She was admitted and an MRI was carried out. The result reported was ‘no acute changes, no neural comprise, minor disc degeneration at L4/5, L5/S1.’ The plaintiff was encouraged to see a consultation liaison psychiatric team but refused to do this and was discharged.

Dr Muir then reported to Dr Bogacki on 13 November 2008 that the plaintiff’s low back pain did not appear to be associated with a change in her MRI and there were elements of anxiety acting as a pain amplifier in her case.

In February 2009 Dr Vagg saw the plaintiff again as Dr Muir has resigned from the Clinic. She had not progressed since he had last seen her.

On 16 March 2009 Dr Vagg advised Dr Threlfall concerning the plaintiff’s position after she had seen Mr Barrett in Melbourne.

Stana remains angry, despondent and depressed about her back pain. She produced a letter from a Mr Barrett in Melbourne who is a spinal surgeon, though I am not familiar with his work. He was of the opinion that she has discogenic pain due to an internal disc derangement, and I would agree with that opinion. However I would suggest that he may not have considered the central sensitisation element of her problem, and unfortunately his recommendation was that she take analgesia and restrict her activities to only what she can tolerate. This recommendation is at odds with what we are trying to achieve with our reviewing her here, and tends to reinforce the perception of helplessness and external locus of control.

Dr Vagg continued to prescribe medication and recommended psychiatric review.

In June 2009 he advised that the plaintiff remained ‘as stuck as ever with a high level of disability and poor self-efficacy’. He had explained to the plaintiff that she might seek more interventional treatment at the Metro Spinal Clinic. He referred her to Dr Verrills at this Clinic. Dr Verrills reported back to him that he had had a lengthy discussion with the plaintiff explaining the concept of a discogram and also whether she would consider going on to a more significant procedure.

On 18 May 2010 Dr Vagg advised Dr Bogacki that little had changed with the plaintiff. There was a stalemate between her desire for a treatment which might improve her pain and her reluctance to consider any treatment or surgery which may worsen it.

Dr Vagg’s opinion is that the plaintiff’s presentation over five years is consistent with central nerve sensitisation. This is likely to remain at about the same level and is best treated with cognitive behavioural therapy.

In cross-examination, Dr Vagg agreed that no sustained improvement has occurred in the plaintiff’s condition as a result of any treatments she has had. He agreed the plaintiff’s symptoms of pain were self-reported, but he believes they are consistent with discogenic pain. Injury to the L5/S1 disc itself will not produce consequential neurological symptoms. Compression of a nerve root may cause consequential symptoms but the changes tend to be patchy. None of his other patients suffering from discogenic pain is in wheelchair. He tried to reassure the plaintiff in 2005 that her back was not seriously damaged and he has since sought to encourage her to move her back as normally as possible.

Dr Vagg has patients who regularly report increased back pain without changes to scan evidence or clinical examination findings.

It is possible a patient like the plaintiff who has numerous physical treatments which do not work, does not in fact have a physical problem, but this is unlikely. If the plaintiff is not physically injured then she has a level of psychiatric illness ‘way beyond the average’.[6]
[6]Transcript of Proceedings, Bozic v Bartter Enterprises Pty Ltd (Supreme Court of Victoria Trial Division, Osborn J, 24 August 2010), 331.

In his Clinic, circumstantial evidence of malingering is generally required before it is accepted that a patient is in fact malingering. They do not use the term ‘inorganic pain’ much in pain medicine these days.

Dr Vagg does not consider the findings made on clinical examination by Mr O’Brien or Dr Nigel Wood are inconsistent with what he has found on examination of the plaintiff. But he accepts some findings are not consistent with disc injury. Some symptoms are consistent with deliberate exaggeration and with abnormal illness behaviour.

He has seen no evidence of deliberate exaggeration on the plaintiff’s part in the time he has examined her. He agrees there is no evidence that an operation or other procedure is clearly beneficial for this sort of patient. People who have relatively minor disc injury may have high levels of disability.

He agrees that the findings of Mr Brazenor (see [277]-[302] of these reasons) on clinical examination are very much against chronic nerve root compression, but some findings are consistent with central nerve sensitisation.

He has not looked at the MRI images himself. He agrees that if there is a disc injury you would generally expect to see a disc protrusion, although only a very small visible bulge can be a potential source of pain. He also agrees the injured disc would generally resorb within time and he agrees that the natural history of these disc injuries is that they become less painful as time goes by.

Scans do not always indicate the level of a patient’s disability. The fact of no change in the scans over four years is more consistent with traumatic injury than gradual degenerative change. If there was a large prolapse you would expect to see it reduce in size over time but this is not such a case.

He does not agree that the plaintiff is a malingerer although he agrees it is a view you could entertain if you had only seen her once as Mr Brazenor did.

In his view the plaintiff is one of a number of patients his Clinic has, who have a relatively minor initial injury but subsequently develop marked psychiatric and psychosocial responses. This is probably due, in his view, to the development of central nerve sensitisation and, to the extent that anyone can objectively determine whether someone has pain or not, he believes the evidence is that the plaintiff does.

The variations in the plaintiff’s presentation over time are, in his view, due to illness behaviour. He agrees that in the normal course of events someone with even quite severe discogenic pain remains mobile to some degree but patients adopt novel and sometimes irrational ways of dealing with pain.

He agreed in re-examination that while her back pain has remained constant her leg pain has reduced. The treatment of her neck also appears to have been successful.

Dr John Black

Dr Black is a specialist psychiatrist practising at the Geelong Hospital who spends one afternoon a week at the Pain Clinic. He first saw the plaintiff in the Clinic in October 2007 and has seen her probably less than 10 times since. He took long service leave through most of 2009.

The plaintiff has always presented in a stressed and agitated state with thoughts of suicide and symptoms of depression. She has been treated with anti-depressants. Her condition would make it hard for her to go to work.

In cross-examination he stated his diagnosis was one of depression associated with chronic pain. He did not find the notion of adjustment disorder helpful given the length of time involved in her symptoms. He understood her state of mind was related to pain occasioned by a workplace injury.

Chronic pain is an appalling thing to live with. The nature of the causal link between the physical pain and depression is very difficult to establish but the temporal relationship can be observed. The subjective sense of pain is highly coloured by the presence of things like depression. During 2007 and 2008 the plaintiff’s condition waxed and waned but there was no substantial change in it. The plaintiff’s whole life is organised around her pain and he doubts if there is much room for anything else most of the time.

Dr Gerald Mathews

Dr Mathews has practised as a consultant psychiatrist since 1986. He has seen the plaintiff in April and May of this year. The plaintiff was referred to him by Dr Bogacki for opinion and possible management input. In his view the plaintiff has suffered from a depressive reaction and adjustment disorder since the time of the initial injury, which has been made worse by ongoing symptoms of pain, difficulties in respect of WorkCover and ongoing financial loss.

He recorded the plaintiff’s personal history and noted she had lived through the Balkan War with three young children under the age of nine. Her history of experience in the former Yugoslavia and migration to this country mean that her depressive reaction, adjustment disorder, and pain symptoms are also part of a more complicated medley of realities that involves ongoing grieving for times past and times lost, the haplessness provoked through cultural and language barriers, and the ambush of an accident such as her back injury which is allowed structure and form of expression under the WorkCover system.

She is more vulnerable in terms of her depression and adjustment disorder worsening because of her background.

In his view there is no doubt Mrs Bozic is both frustrated and angry but she is also anguished by what her injury has cost her in terms of her job, status, finance and previous abilities. In his view she appears to need time, through an interpreter she trusts, to ventilate both her injury and her depressive reaction and adjustment disorder. In his view she requires ongoing psychotherapy. His prognosis is guarded as to her future capacity for work.

He noted that her sleep remains significantly compromised, she complains of headaches, of ongoing significant fatigue, of ongoing lowered mood, of significant cognitive compromise, of generalised anxiety causing almost social autism of sorts and tearfulness when challenged by any new stress whatsoever to the point that it appears to be her main emotional response to anything new or unexpected in her life.

Nevertheless at the core of her difficulties lie significant intractable pain symptoms originating in the back injury she suffered in the accident in December 2004. Prior to this she showed no evidence of emotional, psychological or physical compromise.

He would apply the term ‘illness behaviour’ rather than the more deliberate concept ‘learned pain behaviour’ which Professor Mendelson has used.

In Dr Mathews’ view the plaintiff has had an understandable psychological reaction to her physical complaints. She has developed depressive anxiety and adjustment disorder symptoms over time.

Mr Barrett’s opinion was very significant for the plaintiff because she was relieved to be given a positive reason for her pain. Commonsense would dictate that if a procedure such as the fusion suggested by Mr Barrett in fact relieved her pain, it would improve her psychiatric prognosis considerably.

Mr David McClure

Insofar as the injury to the veins of the right leg is concerned the report of Mr David McClure, vascular surgeon, of 20 August 2010 states that he saw the plaintiff in February 2009 and she was reported to have developed a large haematoma at the sight of the injury to the right leg and subsequently developed enlarged varicose veins in the long saphenous vein territory of that limb. An ultrasound investigation demonstrated saphenofemoral junction incompetence in the right leg which was responsible for reflux of venous blood under high pressure through an incompetent long saphenous vein. Mr McClure removed the long saphenous vein from the thigh and multiple stab avulsions were performed to the varicosities in the leg. The treatment was successful.

The plaintiff further relies on the report of Mr Charles Flanc, vascular surgeon, who saw the plaintiff on behalf of the defendant. His opinion is that it is likely that direct trauma to the right side of the lower leg below the knee resulted in severe bruising and a haematoma which did not completely subside and in 2008 still presented as a visible blue and tender lump. He further believed that it was likely the injury of December 2004 significantly increased the size and tortuosity of the tributaries draining from the vein into the long saphenous system and also increased the size and tortuosity of the long saphenous vein itself. He would regard the trauma to that part of the right lower leg which occurred in December 2004 as probably being a significant contributor to the aggravation of the plaintiff’s varicose veins in the sense that they became larger and more tortuous. The development of superficial thrombosis of local varicose veins was significantly related to the trauma of December 2004.

The plaintiff also relies on the fact the defendant paid for the surgery performed by Mr McClure. The defendant ultimately did not contest that the bruising, subsequent haematoma and subsequent complications with the plaintiff’s varicose veins in her right leg were caused by the accident.

Summary of the treating doctors’ evidence

The treating doctors’ evidence shows that the plaintiff has persistently sought treatment since she was injured in December 2004.

She has also consistently stated that her main problem was pain in her lower back.

Her reported symptoms of leg pain have diminished. What appears to have been incidental pain in the neck area resulting from the use of a crutch has been treated. The aggravation of her varicose vein condition has also been treated successfully.

She has however been disturbed by an apparent failure to establish a definite physical cause for her back pain.

She has developed a significant psychological reaction to her injury by way of ongoing anxiety and depression.

Her symptoms on presentation have varied and in particular since November 2008 she has restricted her self to the use of a wheelchair when she travels outside the house.

None of her treating doctors regard her as a malingerer. Dr Bogacki, Dr Threlfall and Dr Vagg have seen her over the course of many years. Her presentation has remained consistent.

Dr Black and Dr Mathews have diagnosed depression associated with chronic pain. Dr Black has also seen her on repeated occasions over about a five month period.

Dr Mathews characterises her psychiatric condition as an adjustment disorder complicated by vulnerabilities arising from her personal history.

Further specialist medical opinion relied on by the plaintiff
Dr Anthony Kam

The report of 28 March 2009 of Dr Anthony Kam, a consultant radiologist, was tendered on behalf of the plaintiff.

A plain x-ray of the lumbar spine of 23 December 2004 showed that lumbar spine alignment was anatomical. Lumbar disc height was preserved. There was no focal osseous lesion, fracture or spondylolisthesis.

An MRI of the thoracic lumbar spine of 4 February 2005 enabled Dr Kam to make the following findings:

L4/5 disc demonstrates early desiccation characterised by gentle loss of T2 signal with mild disc height reduction. Disc annulus is intact. Shallow generalised disc bulge results in mild impression upon the thecal sac and mild bilateral foraminal narrowing. There is no contact or compromise of the adjacent neural structure.
L5/S1 disc demonstrates moderately advanced desiccation and disc height reduction. There is posterior left paracentral disc annulus disruption. Broad based posterior disc protrusion is evident with contact of the traversing S1 nerve root bilaterally. There is mild narrowing of the neural exit foramen. Mild bilateral facet joint arthrosis is seen with mild bilateral ligamentum flavum thickening.

A further MRI of 27 August 2008 enabled Dr Kam to make the following further findings:

L4/5 disc demonstrates early desiccation with gentle loss of T2 signal and mild disc height reduction. There is disruption of the posterior disc annulus. Broad based posterior disc protrusion is increased compared to 2005 and reaches close to the traversing L5 nerve root bilaterally without contact.
L5/S1 disc demonstrates moderately advanced desiccation and disc height reduction. There is posterior annulus disruption, broad based posterior disc protrusion resulting in contact of the traversing S1 nerve root bilaterally. There is also mild bilateral foraminal narrowing. Mild facet joint arthroses with mild ligamentum flavum thickening are also identified.

Dr Kam further concludes:

The earliest MRI study of the lumbar spine obtained in [sic] 4^th February 2005 showed only mild desiccation of the L4/5 disc without evidence of disc annulus disruption. There was mild generalised disc bulge at L4/5 without direct contact of adjacent neural structures. There was however moderate desiccation of the L5/S1 disc with posterior disc protrusion and contact of the traversing S1 nerve roots. The neural exit foramen around the L5 nerve roots were mildly narrowed.
Subsequent MRI examination obtained in [sic] 27^th August 2008 clearly showed evidence of progression. L4/5 disc showed posterior annulus disruption and posterior broad based disc protrusion. L5/S1 continued to show moderately advanced disc desiccation with disc height reduction. There was posterior annulus disruption, broad based posterior disc protrusion and contact of the traversing S1 nerve roots. The neural exit foramen around the L5 nerve roots were mildly narrowed. These findings are in entire agreement with Mr Barrett’s opinion dated 6^th March 2009.
In my opinion, Mrs Bozic suffers from disruption of the L5/S1 disc annulus which resulted in broad based posterior disc protrusion and contact of the traversing S1 nerve roots. There was no evidence of L4/5 annulus disruption visible on MRI from 4^th February 2005 although this has developed on the subsequent MRI from 27^th August 2008 and resulted in broad based posterior disc protrusion with S1 roots contact at L5/S1 level. The changes are not specific to but are entirely compatible with lumbar spine trauma. The changes are not specific to but are entirely compatible with lumbar spine trauma. The changes do often occur in [sic] with age related disc degeneration without a history of prior injury. However, the absence of any documentation of lumbar spine pathology or symptoms prior to the work incident in 2004, it is considered likely that the lumbar disc changes occurred as a result of the work incident.

I accept Dr Kam’s opinion that the changes observed by him in the MRI are entirely compatible with lumbar spine trauma.

Mr Brian Barrett

Mr Brian Barrett, an orthopaedic surgeon, was called to give evidence on behalf of the plaintiff. Mr Barrett holds fellowships of the Royal Australasian College of Surgeons and of the College of Surgeons of England. He has practiced as an orthopaedic surgeon for 44 years. Mr Barrett was asked by Dr Bogacki for an opinion concerning the plaintiff but was not asked to treat her. His opinion takes the most serious view of the plaintiff’s back injury put forward on her behalf, and it is necessary to set out his evidence in some detail.

His first saw the plaintiff on 24 February 2009 and took a background history with the help of a professional interpreter and the plaintiff’s husband, relating to the circumstances of the accident and her subsequent treatment.

At that time she was complaining of lower back pain which fluctuated in intensity from day to day. She also had pain radiating into the right outer thigh, into the right calf as far as the right heel associated with intermittent numbness and pins and needles into the right foot and toe. In addition she had intermittent electric shock type pain into the left thigh not below knee level. Her symptoms were aggravated by prolonged walking, standing, bending, lifting, etc and somewhat improved by taking pain killers and lying down. Her pain had not improved over the prolonged period since the accident. She initially managed light housework and domestic duties but could not now even manage that because of her symptoms.

Prior to her injury she had not experienced lower back pain or suffered spinal injury. Her general health had been good.

When he examined her, Mr Barrett found the plaintiff to be a co-operative woman in her early forties who moved very slowly and stiffly. She was wearing an elongated elastic stocking on her right leg following a recent varicose vein operation (a week prior).

He found movements of the plaintiff’s lumbar spine were very limited and that they produced low back pain radiating into the right buttock at their limits. Some moderate lower lumbar tenderness was present. Straight leg raising was almost normal on the left and 70 degrees on the right if it was taken carefully (90 degrees being normal). Mr Barrett sometimes performs the test by bending the leg up so that the thigh is at right angles to the trunk keeping it still and then the normal person can straighten the knee. He does this because patients sometimes tend to grip their muscles.

Power in the lower limbs appeared to be normal when tested by asking the plaintiff to walk on her tiptoes and heels. Lower limb reflexes were brisk and symmetrical. Sensory testing was not satisfactory because of the dressings on the right leg.

Initial lumbar spinal x-rays performed on 23 December 2004 showed normal alignment throughout the lumbar spine. There was no indication of degenerative change. Plain x-ray films often give an indication of such degeneration.

An MRI scan performed on 4 February 2005 showed there was normal general alignment throughout the lumbar spine and that the upper three lumbar discs appeared to be normal. It showed that the two lower lumbar discs, that is at the L4/5 and L5/S1 levels, were disrupted and desiccated. The desiccation means that there was a split in the disc which had allowed fluid to escape. The L4/5 disc also showed a modest posterior disc bulge well clear of the nerve roots and the lumbar theca (the tube that contains the nerve roots). The L5/S1 disc had a modest posterior disc bulge with a clear split in the annulus.

A further MRI undertaken on 27 August 2008 showed the L4/5 disc bulge had increased in size and was more generalised across the posterior margin. The L5/S1 disc also bulged and pushed into both intervertebral canals below the emerging L5 nerve root. When counsel for the plaintiff put the findings of Dr Kam, the radiologist, in detail to Mr Barrett, he substantially agreed with them.

Mr Barrett explained the anatomy of the lumbar spine. The nucleus of the disc contains fluid which he described as ‘a bit like warm chewing gum’. It is surrounded by the annulus fibrosis which contains annular fibres passing from the vertebral body above the disc to the vertebral body below. The desiccated lower lumbar discs identified on the MRI indicate that the fluid in the nucleus of the discs had escaped. The bulge in the L4/5 disc means that a substantial portion of the annulus fibres have been torn to allow the liquid to escape. This means there is a weak patch in the fibres so the disc tends to bulge in this case backwards.

Because the MRI scans are performed in a horizontal position the bulge is sampled at its most minimal because there is no load on the disc.

In the case of the L5/S1 disc there was a modest posterior disc bulge. In addition there was a clear split detected in the annulus. Sometimes you can see the split on the MRI and sometimes you cannot.

The peripheral fibres of the annulus have pain sensitive fibres within them. The splitting of the annular fibres causes quite sharp pain. The peripheral fibres of the annulus generate back pain if they are split or have been stretched.

The fact that the second MRI shows that the L4/5 disc bulge has increased in size tells us that there has not been healing process or reconstitution of the disc in the meantime. The bulge could be larger because a bit more of the residual tissue from the annulus has been pushed out or it also might mean that the patient is a little tense.

The L5 bulge was close to both S1 nerve roots and pushing into both intervertebral canals. The S1 nerve root supplies the calf muscle and the skin down the outer side of the calf, the outer toes and the sole of the foot. This means that the dermatome or skin supply in the particular patient can be matched up with the observations on the MRI.

Because the bulge is close to both the S1 nerve roots, whenever the bulge punches out because the plaintiff coughs or sneezes or does something vigorous she will get a thump on the nerve and an electric shock sensation.

In Mr Barrett’s opinion, the plaintiff has sustained significant disruptions of both the L4/5 and L5/S1 lumbar intervertebral discs. Both discs have posterior bulges and annular tears. In his opinion the lack of large disc bulge is due to the fact that the MRI is performed in the horizontal position when the discs are not loaded.

He considers the plaintiff’s symptoms and disability are genuine and are typical for these types of lower lumbar disc injuries. He is certain she is unable to carry out any significant physical activities without increasing her symptoms. Lumbar disc disruptions of this type have minimal capacity to heal or repair. He expressed the opinion in his report of March 2009 that operative treatment was unlikely to be helpful. A fusion of the ruptured discs is possible but that would result in a fairly stiff spine and tend to produce increased wear and tear on the remaining mobile lumbar discs. The view he reached in February 2009 was that the plaintiff’s prognosis was poor and it was likely that her symptoms and disability would continue into the foreseeable future.

He saw Mrs Bozic again in April 2010. She stated she continued to suffer low back pain and that the pain radiated into her right lateral thigh, to the right calf as far as the right heel, and was associated with intermittent numbness and pins and needles into the right foot and toes. She also had mild and intermittent pain radiating into the left thigh but not below knee level. These complaints indicate irritation of the sciatic nerve on the right hand side. Her pain had not improved during the period since his initial examination. He carried out a further clinical examination with similar findings to those made on the first examination with respect to flexion, lumbar tenderness, straight leg raising and power in the lower limbs. Lower limb muscle bulge was normal and symmetrical and sensory testing of the lower limbs showed uniform depression of sensation throughout the whole of the right lower limb and also up the right half of the trunk. This was not of a dermatome pattern. It showed more than one would normally expect on compression or irritation of the sciatic nerves on the right hand side. Mr Barrett said he often found this in people of central European origin.

Mr Barrett’s opinion remained as it had been after the second examination. In his view the plaintiff is suffering from symptoms arising at the two lower lumbar intervertebral discs. Any features of the examination that could be said to be functional are due to her ongoing pain and disability in the face of being told by numerous medical examiners that there was nothing wrong with her. In his view she will not return to work in the future.

In cross-examination Mr Barrett said he was not provided with reports from the doctors who had initially treated Mrs Bozic in the early years. He took Mrs Bozic’s history through her husband and a professional interpreter.

If there was substantial degeneration of the spine prior to the accident it would be obvious on the original plain x-ray film. If she was involved in a motor accident in 2003 she may have suffered no more than bruising in the back. Dr Hamza’s findings in December 2004 suggest to Mr Barrett that at that time the plaintiff had a reasonably violent episode.

Mr Barrett agrees with Mr Siu’s view formed in early 2005 that the MRI scan done in February shows desiccation at L5/S1 but no obvious disc prolapse. But Mr Barrett stressed that desiccation means the disc is damaged. There was no prolapse placing pressure on the nerve roots while she was lying in a flat position. Mr Siu found power in the lower limbs was normal and that is a positive sign in terms of absence of nerve compression at the lower levels of the lumbar spine. Leg reflexes were normal. There was also normal sensation.

Nerve root impingement can be sudden when a cough or a sneeze or something else causes the bulge of the disc to punch out and hit the nerve and then come back again. It can be intermittent as distinct from something that causes constant pressure on the nerves and results in loss of nerve function, muscle function or an absent reflex in the legs.

When Mr Barrett saw Mrs Bozic in 2009 there was no suggestion of any permanent impairment of nerve supply to the lower legs.

Mr Barrett accepted the plaintiff’s complaints of fairly severe disabling low back pain. Her movements and clinical features were consistent with those of someone who has a lumbar spinal injury. He has seen lumbar spinal injury patients over the past 20 odd years. He has not dealt with other orthopaedic problems. Subsequent radiology was consistent with such injury as well.

Despite the use of a wheelchair and of a movable chair at home, one would not expect loss of muscle power unless there was continuous pressure on the nerve roots. Usually when the nucleus of the disc is forced out and causes ongoing nerve impingement, it occupies perhaps 50 per cent of the cross-section of the tube that contains the nerve.

When Mr Barrett saw the plaintiff after an interval of 12 months her presentation was essentially the same.

In his view there are two main causes of the plaintiff’s pain. One is the fact that the disc has been split causing discogenic pain which gives a lot of low back ache and pain radiating into the buttocks. In addition there is sciatic pain which is sharp electric shock pain when the punctured disc is causing pain like a shock shooting down the leg in the distribution of that nerve. She suffers sciatica as a result of intermittent irritation of the sciatic nerve root.

The plaintiff’s evidence as to improvement in the sensation of pins and needles in her right leg coupled with increased low back pain and some pain in the hip was put to Mr Barrett. In his view it is likely she has learnt to avoid causing stress which results in the sciatica.

There is still some tissue between L4/5 and L5/S1 being the remains of the annulus. But it doesn’t work as a shock absorber and when you move it the nerves on the periphery of the disc are irritated causing back pain.

The opinion of Mr Nigel Wood, a rheumatologist who saw the plaintiff in June 2005 was put to Mr Barrett. He noted a complaint of the right leg being weak resulting in the use of a crutch. Mr Barrett commented that the complaint of a leg giving way is typical of patients with a ruptured disc. This occurs as a result of intermittent punching against the nerve root in the lumbar spine.

Mr Wood’s opinion does not change Mr Barrett’s. Mr John O’Brien’s findings when he examined the plaintiff on 28 January 2005 were also put to Mr Barrett. In his view Mr O’Brien’s findings were generally consistent with his own. Mr Barrett does not agree that the plaintiff presents with no objective signs of injury and quite marked variability in subjective signs.

Mr Barrett does not agree with the opinion Mr O’Brien expressed that there is no evidence of significant pathology. Mr Barrett’s view is that both the radiological evidence and the results of his examinations support the view of injury to the back. He agrees that he found some non-organic features in the plaintiff’s presentation, but does not agree that this should lead to the rejection of the plaintiff’s complaint.

Mr Clive Jones’ report was also put to Mr Barrett. In the course of responding to this report Mr Barrett said that he had some 25 years experience of use of discograms and had done about 2000 discograms at Cabrini Hospital. When repeat discograms are done the second discogram indicates that there has been no repair process in ruptured lumbar discs.

He agrees that as time passes the pain suffered as a result of disc injuries generally reduces because patients adapt their behaviour to avoid situations that produce the pain.

Mr Barrett’s view is that the plaintiff’s injuries are physical and do not have a major inorganic component.

Mr Barrett did not find signs of depression or inappropriate anxiety except that the plaintiff was annoyed and told him that so many doctors had told her that there was nothing wrong with her.

Mr Brazenor’s report was also put to Mr Barrett. Mr Barrett reiterated that the findings of examination are very much bound up with the way the examiner treats the patient and, in particular, it is necessary to be very gentle with the patient. He disagrees with Mr Brazenor’s interpretation of the MRI evidence.

The actual amount of the bulge shown on the MRI is not related to the seriousness of the rupture of the disc itself, but the MRI does show the disc has lost its fluid. Therefore it has lost the function of a nucleus and is ruptured through to the back. There is no shock absorbing quality left in the disc. He disagrees with the view that the plaintiff is a malingerer.

If Mrs Bozic were Mr Barrett’s patient, given her ongoing symptoms and disability, he would now recommend that she have a fusion at the two ruptured disc levels.

He reached a similar conclusion after a further examination in May 2007 at which time he had the benefit of an MRI report. He believed overall the prognosis was poor and that the plaintiff would continue to describe severe chronic pain.

In oral evidence he said he cannot exclude the possibility that the plaintiff has got ‘some pathology because I can’t say this patient is malingering, no possibility that I can, nor I would. But what I can say is that there is no clear clinical proof to explain the distribution and the nature of the patient’s pain.’

Mr O’Brien accepted the plaintiff may have non-specific back pain ‘because people can get aggravation of degenerative back problems, and they can get back pain.’

He also agreed that the conclusion the plaintiff does not have nerve root compression in a sense does not really say much about the back pain which has since shortly after the accident been her main complaint.

Like Dr Wood he rejects the notion of intermittent nerve compression pain.

He says that discs do repair in a functional sense as a result of a form of scarring, but they do not return to normal.

He accepts central nerve sensation may explain patterns of pain which are otherwise not explicable, but does not believe we have reached the point where we can state the theory is proven.

Mr Clive Jones

The evidence of Mr Jones is generally consistent with that of Mr O’Brien. He described his findings on examination as follows:

She sat in her wheelchair, weeping quietly from time to time. She was able to be undressed, with her husband’s assistance. There was a strong aura of anxiety. The lumbar spine was tender to palpation, as was the right trochanter. Signs of non-organic illness were prominent. She was able to only achieve 10 degrees of spinal flexion, and spinal extension was completely impossible due to severe pain. Leg raising was reduced to 20 degrees on the right and 30 degrees on the left. The knee reflexes were present, and of normal amplitude and the ankle reflexes were difficult to find, but did appear to be present. Testing power showed collapsing weakness of ankle dorsi flexion and extensive hallucis along function. There was no radicular sensory change, the whole of the right leg was said to be less sentient than the opposite left side. Recent varicose vein surgery was noted on the right calf. The thigh circumferences were 51 centimetres and the calf circumferences 42 centimetres. Asked to walk, Mrs Bozic could only manage a few short staggering steps holding on to the furniture and her husband. [11]

He concluded, in part:

Allowing this lady did sustain a lumbar disc injury, the natural course of such an event is usually substantial lessening of any referred pain in the leg as time passes, and its ultimate resolution, with perhaps, mild ongoing intermittent back pain. One can only describe this lady’s response to injury as unusual in the extreme, with a much magnified pain response and the subsequent appearance of signs, which strongly suggest a major inorganic component. Whether this is related to her undoubtedly severe depression is difficult to say. Certainly the current level of disability portrayed cannot be substantiated by the physical findings and by the radiological appearances of this lady’s lumbar spine, which to my mind, totally represent age related change and desiccation in the lower two lumbar discs.[12]

[11]Mr Clive Jones, Examination Report, 15 May 2009, 2-3

[12]Ibid, 3.

Mr Jones agreed in cross-examination that disc degeneration may affect the nerves on the outer rim of the disc resulting in pain and that back pain and buttock pain are commonly complained of in the presence of degenerative change.

… it is well accepted that disc degeneration causes in itself back pain and this lady has disc degeneration.[13]

[13]Transcript of Proceedings, Bozic v Bartter Enterprises Pty Ltd (Supreme Court of Victoria Trial Division, Osborn J, 26 August 2010), 525.

He said there is no real medical agreement as to the cause of back pain. He agrees that there is a credible view that disruption of the nerves within the outer rim of the lumbar spinal discs may be a source of pain. It is also credible that stress on the spinal column may cause intermittent disc contact with the emerging nerve roots within the spinal column and result in pain.

He further agreed in cross-examination that the MRI evidence shows disc degeneration at L5/S1 and L4/5. That the later MRI to which he was referred shows the changes have increased at L4/5. He agreed he would expect the plaintiff to have some genuine organic pain.

He agreed that given a history of lack of previous back pain, it was a reasonable hypothesis that the accident precipitated pain in the discs suffering previous degeneration.

He agreed with the proposition that patients of the plaintiff’s ethnic origin were ‘perhaps more vulnerable to exaggeration.’

He expressed the view that the plaintiff may materially improve when this litigation is over:

That’s been my general experience in this sort of situation. I don’t mean to say this pejoratively in any way, but once litigation is finalised and it’s all tidied away, then you often find quite substantial improvement. It’s been my experience that patients who have been disabled and who have a claim, and that claim is settled, you see them years and years later for something else and enquire about their back function, and it has improved very markedly.[14]
[14]Transcript of Proceedings, Bozic v Bartter Enterprises Pty Ltd (Supreme Court of Victoria Trial Division, Osborn J, 26 August 2010), 532.

Mr Graeme Brazenor

Mr Graeme Brazenor is a neurosurgeon with extensive experience, who is the Director of the Neuroscience Institute in the Epworth Hospital Group and the President of the Spine Society of Australia.

He saw the plaintiff in May 2010 and was provided with copies of reports from Mr Barrett, Mr Miller, Dr Muir, Mr Siu, Dr Hamza and Dr Nigel Wood, together with the records of Dr Bogacki and Dr Threlfall.

He had the assistance of a professional interpreter during his examination of the plaintiff. The plaintiff presented in a wheelchair and told him she had been using it to travel out of doors for two years because of increasingly severe pain in the back and legs. To get around the house she either used a wheeled office chair or walked with a single stick in a great deal of pain.

When asked where her worst pain was she replied in the low back. Mr Brazenor asked her to demonstrate and the plaintiff got out of her wheelchair with minimal assistance and stood with her back to him and indicated the midline lumbosacral junction region and then indicated that the pain radiated out to the right sacroiliac region. She grasped at the desk for support and said the pain went down the whole of the right leg and that the pain had been increasing over recent years and in the last six months had begun to go down the left leg as well. When asked about treatment she said that she had been in hospital for approximately five days in November 2009.

Mr Brazenor described his examination of the plaintiff as follows:

Well, firstly I stood her and walked her, I offered her my arm, and she walked limping severely and curiously on the left leg, and in fact she walked just like somebody who had fractured their left hip. And standing quietly, however, she had a nice curve of her lumbar spine, a good lumbar lordosis, no palpable spasm in her lumbar erector spinae muscles, and those things are usually in spasm if there's a pain generator in the lumbar spine, and in general the lumbar lordosis disappears. Such was not the case with Mrs Bozic. She flinched and tended to buckle at the knees when her lumbar region was even gently palpated, which is generally the patient trying to tell you that it hurts. And if you are suffering from pain from a lumbar disc, there's no way you will have local tenderness in the muscles, it just doesn't happen. From a standing start I asked her to slide her hands down the fronts of her thighs, that's a safe way to assess voluntary bending forward, and she would only bend at 10 degrees before grimacing and gasping she indicated that the low back and leg pain was too intense for her to continue, and she couldn't extend past the neutral, so she couldn't extend. I helped her on to my examination couch where she lay supine with her legs flat on the couch. There was no sign of nerve root impingement at all. There was no wasting in any muscle group, and straight leg raising was performed to 45 degrees on the left limited by low back pain, but to only 15 degrees on the right similarly limited. And this was incongruous with her limping heavily on the left leg and hip when she walked. I tested the motor power in the lower limbs, and this was only 3 out of 5 in dorsiflexion and plantar flexion in either foot. The right foot being allegedly weaker than the left. I think it's fair to say that if she were in truth as weak at the ankles as she made out during testing on my couch, she wouldn't have been able to walk at all, and probably not to stand. The alleged weakness was attended by a great deal of grimacing and puffing and blowing alleging that the intensity of her muscle contraction caused pain within the low back and legs. The other muscles in the lower limbs tested out only slightly stronger, and I graded those as 4 out of 5. By contrast tendon reflexes in the lower limbs were present, symmetrical, normally active, in other words, normal. Plantar reflexes were down-going, and in the testing of sensation to pin prick, she said she could feel the pin as sharp in all areas on both legs, but the pin felt subjectively blunter on all aspects of the right leg below the knee, and that's unanatomical.
…
I sat her carefully up to 90 degrees of flexion on the couch, and it surprised her a bit, but there was obviously no pain, there was no grimacing, puffing, blowing, exclamation, and this was completely out of keeping with her alleged limitations of 10 degrees of flexion in the standing position.[15]

[15]Transcript of Proceedings, Bozic v Bartter Enterprises Pty Ltd (Supreme Court of Victoria Trial Division, Osborn J, 31 August 2010), 679-81.

When Mr Brazenor viewed the two MRI scans, one dated February 2005 and one August 2008, they were in his view ‘absolutely identical’ and within normal limits for the plaintiff’s age. They both showed minor contour abnormalities in the L4/5 and L5/S1 disc annuluses but there was nothing acute going on in the spine in earlier 2005 because there has been no change since. He disagrees with Dr Kam.

Mr Brazenor could find no evidence of pathology to support the plaintiff’s complaints of ongoing low back pain. Nor could he find evidence of pathology supporting the complaints of persisting pain and weakness in the right leg.

He noted by way of conclusion firstly that the plaintiff was not subjected to significant trauma. The fact that several examiners found tenderness in lumbar spine muscles following the accident would be consistent with a mild lumbar strain, but not disc injury. Weakness in the ankle could have been because the lateral popliteal nerve was struck at the time of the accident. A direct blow may cause temporary foot drop.

He was not assisted by Mr Siu’s report, nor by Mr O’Brien’s report save to observe that her condition has apparently worsened since she saw Mr O’Brien.

If nerve root impingement had occurred in December 2004 then one would normally expect healing by May 2010. If the plaintiff were one of the 5 per cent of people who do not heal there would always be a reflex abnormality and/or wasting of a muscle, and/or an area where pinprick was not perceived as sharp outlining a cutaneous dermatome. The plaintiff has none of these. The MRI does not demonstrate an injury and in Mr Brazenor’s view the plaintiff’s embroidery and exaggeration is such that he can only conclude that there is deliberate embroidery and exaggeration.

If the earlier findings of weakness in dorsiflexion and the extensor of the right foot had been genuinely produced by an acute disc injury there would have been a disc protrusion on the scan, and a lessening of symptoms in 95 per cent of cases.

The scan shows a diffuse bulge of a disc that contacts the nerve root but does not compress it. The second scan does not confirm injury because the disc has not deflated as time has gone on. There was no explanation for the left leg symptoms any more than there was an explanation for the right leg symptoms. Curiously the leg the plaintiff could not stand on was the good leg in straight leg raising when Mr Brazenor examined her.

Mr Barrett’s recorded findings on clinical examination in February 2009 were bizarrely and grossly different from the ones Mr Brazenor made. In his view the differences are totally inexplicable.

The reports of Mr Barrett and Dr Kam do not change his opinion.

In terms of the plaintiff’s capacity for future employment it would be prudent not to send her back to a job involving bending at the waist but there is no evidence that she is impaired.

In cross-examination Mr Brazenor said that it had taken him an hour and a half to read all the reports with which he was supplied. In his view Mr Barrett, Mr Miller, Mr Brownbill and Dr Kam had not properly assessed the two MRI scans retrospectively. Having read all the medical reports supplied to him he did have suspicions about the plaintiff. He saw the plaintiff for 25 to 30 minutes. During this time he took a history, got the plaintiff out of her wheelchair, examined her and looked at the two MRI scans. He said ‘I don’t trust anybody, Mr Harrison, except me’.[16]
[16]Ibid, 700.

He agrees that the straight leg raising revealed on examination by Mr Barrett was likely to be more genuine than that displayed to him. He said ‘she had already sucked Mr Barrett in, she didn’t have to work on him.’[17]
[17]Ibid, 702.

He disagrees with Dr Kam’s ultimate conclusions.

The possibility that a horizontal MRI does not capture the effects of pressure in the vertical position has not proven to be significant when a vertical MRI scan has in fact been established. Since 1998 a facility in Aberdeen, Scotland, has sought to investigate the difference between horizontal and vertical scans and has not established a significant difference in practice.

He does not accept that a disc which looks like the plaintiff’s on the MRI can cause intermittent nerve contact resulting in sharp pain.

He has been looking at MRI scans for 30 years.

In his view the plaintiff is guilty of blatant malingering.

In his view the plaintiff’s MRI is at most demonstrative of a condition ‘capable of causing mild chronic low back pain’[18] but a twisting injury would only make such pain briefly symptomatic unless there was a demonstrable disc tear. If the injury precipitated a permanent change we would see an injury evolve over time. The identical scans almost four years apart tell you nothing much has changed in this lady’s spine in the decade of the 2000s.
[18]Ibid, 710.

Discogenic pain results from degenerate or injured discs and there is no way of proving whether it is there or not. The plaintiff might have suffered mild pain for six months at most. He agrees there may be a poor correlation between radiology of the spine and symptoms but no disc will cause discogenic pain unless it is demonstrably degenerate on an MRI.

He accepts that central nerve sensitisation may occur but there must be an injury to the nerve and there is no evidence of injury to a nerve in this case.

He accepts that broad based lower back pain extending out to the hip is consistent with discogenic pain but if the plaintiff was suffering from such pain she would not be able to sit in the way she was able to in the court room.

Mr Peter Battlay

The defendant tendered the report of Mr Peter Battlay, a general surgeon, dated 16 August 2006. He concluded:

Mrs Bozic claims unremitting low back and right leg pain numbness. There is no objective abnormality of the right leg and no evidence of sciatic nerve root irritation or radiculopathy. I cannot explain the right leg symptoms in physical terms.
In her back, there is good demonstrated function but I cannot exclude the possibility of some symptoms being produced resulting from the L5/S1 disc derangement that is demonstrated on the MRI scan.[19]
[19]Mr Peter Battlay, Examination Report, 16 August 2006, 3.

Professor George Mendelson

Professor George Mendelson is a consultant psychiatrist. The defendant also tendered two reports from him dated respectively October 2005 and October 2008. In the latter report he stated in part:

While I agree that Mrs Bozic does describe some manifestations of anxiousness and depressive symptoms, based on my examination of her it is my opinion that these emotional symptoms are due to an understandable psychological reaction to Mrs Bozic’s physical complaints and her current situation. That is, in my opinion Mrs Bozic is not mentally ill, and her predominant complaints relate to constant pain and related physical complaints. [20]

[20]Professor George Mendelson, Examination Report, 27 October 2008, 8.

It was his view that the plaintiff demonstrated what can be described as ‘learned pain behaviour’, and that although she does describe some emotional symptoms there is no indication she is mentally ill or has lost work capacity due to either a clinically significant depressive illness or an anxiety disorder. Professor Mendelson further stated:

She is entrenched in the role of an injured and disabled person, and further treatments with opiate analgesics and various procedures are simply reinforcing her in the role of someone who has a specific physical injury that is treatable by physical means, whereas the information that I have received indicates that this is not the case.
It remains my opinion that Mrs Bozic requires firm and unequivocal explanation and reassurance from her treating doctors to the effect that there is no objective evidence of an organic abnormality or injury resulting from the incident in December 2004, and that she should be involved in a functional restoration program. [21]
[21]Ibid, 9.

The extent of the plaintiff’s injury

I do not accept Mr Brazenor’s view that the plaintiff is simply a malingerer.

(a) Both the plaintiff and her husband gave essentially consistent and detailed circumstantial evidence relating to her history.

(b) The surveillance evidence called by the defendant does not disclose clear circumstantial evidence of malingering.

(c) The plaintiff’s life has been very materially worsened over an extended period of time by her ongoing reaction to her injury.

(d) The plaintiff and her husband have suffered consequential financial loss by way of loss of earnings and the loss of the ability to continue to pay for an investment property as a result of her injury.

(e) The plaintiff’s presentation to her treating doctors has been consistent over a long period of time.

(f) None of her treating doctors regard her as a malingerer.

(g) Dr Black and Dr Mathews accept that she is in genuine psychiatric stress. Their opinions are consistent with the views of Doctors Stern, Strauss and Newlands.

(h) Whether the theory of central nerve sensitisation be accepted or not, Dr Vagg’s evidence that relatively minor disc injury may result in significant pain should be accepted.

(i) The evidence of Dr Vagg and Dr Black that the experience of pain is coloured by depression should be accepted.

(j) The absence on clinical examination of satisfactory evidence of nerve root compression does not preclude a diagnosis of discogenic pain.

(k) The plaintiff has maintained since shortly after the accident that the main problem is lower back pain.

(l) The majority of the defendant’s doctors with expertise in spinal medicine accept that they cannot say the plaintiff is a malingerer.

(m) Mr Brazenor saw the plaintiff only once for a limited period of time and his observations do not permit the conclusion he drew to be preferred against the weight of the evidence as a whole.

(n) It is likely that the plaintiff’s presentation to Mr Brazenor in particular but also other doctors was affected to some extent by her perception of their attitude towards her.

(o) Her account of her history to Mr Brazenor and other doctors (save Dr Bogacki) was received through an interpreter and there are necessary relativities of communication in this and in their interaction during examination.

(p) Some exaggeration of symptoms is explicable on the basis that the plaintiff either consciously or unconsciously was seeking to draw attention to her underlying injury.

(q) Mr Brownbill’s conclusions are consistent with the weight of the evidence.

(r) Mr Brownbill’s conclusions are supported by the radiological opinion of Dr Kam.

(s) The weight of opinion is that the MRI evidence discloses sufficient disc damage to mean that discogenic pain cannot be excluded. The MRI scans were seen and interpreted by Dr Kam, Mr Barrett, Mr Brownbill, Mr Miller, Mr Jones and Mr Brazenor. The witnesses other than Mr Brazenor accept the MRI scans show disc disruption and Mr Brazenor is the only witness who says there is no material difference between the two scans.[22]

[22]There was also, it seems, another MRI undertaken on 8 November 2008 which was not examined by or relied on by any of the specialist witnesses. I have placed no weight upon the report of it.

The plaintiff submitted that Mr Brazenor was not independent or impartial. I accept that he formed a strong initial impression of the documentation supplied to him,[23] that he saw the plaintiff for a relatively limited period of time and that she did not feel him to be sympathetic. These matters coupled with robust language in the witness box do not however justify a conclusion of bias.
[23]An impression which was partly erroneous insofar as it related to the history of the plaintiff’s treatment after the car accident which he understood to have been ongoing when in fact it was not.

Whilst I do not accept Mr Brazenor’s view, I do not accept that the plaintiff’s symptomology of ongoing pain and numbness in her legs should be accepted.

(a) The MRI evidence does not support the conclusion that she suffers from nerve root compression.

(b) The plaintiff’s presentation on clinical examination is simply too variable and too replete with non-organic symptoms.

(c) In particular, the plaintiff’s presentation on a number of occasions has not been consistent with her presentation to Mr Barrett.

(d) Neither the plaintiff’s own evidence nor her clinical presentation satisfactorily demonstrate a credible trigger mechanism for intermittent episodes of nerve compression.

(e) No medical explanation has been given justifying the plaintiff’s use of a wheelchair.

(f) The episode of surveillance showing the plaintiff moving from driving a car to using a wheelchair on the same day in a relatively short space of time is unexplained and in my view directly corrobative of exaggeration on her part.

(g) A variety of opinions were expressed concerning central nerve sensitisation from Dr Vagg, Mr O’Brien, Mr Jones, Mr Brownbill and Mr Brazenor. I am not satisfied the plaintiff’s history of presentation and reported symptoms can be explained by this phenomenon, even if its theoretical basis as explained by Dr Vagg is accepted.

(h) In final address the plaintiff’s case was ultimately put on the basis that she did not suffer from nerve root compression or impairment. Rather her case is that she has suffered discal injury with intermittent irritation which now only causes pain and pins and needles in her leg.

(i) I accept the plaintiff’s presentation may in a broad sense be regarded in part as evidencing a series of calls for attention to the fact of her underlying back injury, which she understood to be denied by the defendant.

I accept Mr Brownbill’s opinion as representing the best view of the evidence as to the nature of the injury to the plaintiff’s back. The plaintiff has suffered an aggravation of a pre-existing degenerative condition of her lumbar spine resulting in discogenic pain. She has in turn suffered a significant psychiatric reaction to this condition involving anxiety and depression.

This view is supported by the weight of the evidence of specialist medical opinion. Even Mr Brazenor conceded the MRI evidence is consistent with mild chronic low back pain.

I accept Dr Mathew’s evidence as best articulating the nature of the psychological complications to the plaintiff’s presentation. It is broadly consistent with the bulk of the psychiatric opinion and his explanations were sustained under cross-examination. No psychiatric evidence was called orally on behalf of the defendant.

Insofar as the plaintiff’s pre-existing spinal condition and potential vulnerability to psychological reaction to injury are concerned, the defendant must take the plaintiff as it finds her.[24]
[24]SB v State of New South Wales (2004) 13 VR 527, 609.

Conclusion

Counsel for the plaintiff contend that general damages for pain and suffering and loss of enjoyment of life should be in the order of $300,000 and not less than $200,000. Counsel for the defendant contend something in the order of $30,000 or $40,000 is appropriate.

The defendant’s figures reflect compensation for the initial bruising of the leg, consequent venous complications, some low back discomfort associated with a few months of incapacity initially and the period of post-surgical recovery.

The defendant further contends that if it is accepted that there is an ongoing scenario of mild back pain a figure of $80,000 would be appropriate.

Counsel for the plaintiff emphasise the evidence as to the effect which the accident and consequent injuries have had upon the plaintiff’s life. They point to the evidence as to substantial interference with her sleep; the daily difficulties she encounters bending to use the toilet and to brush her teeth; the difficulties she has with showering; the substantial constriction of her domestic and social life; the substantial loss of intimacy with her husband.

They further emphasise the evidence of Dr Black that depression contributes to the total level of suffering associated with pain and that his impression was the plaintiff’s whole life was organised around her pain.

The defendant‘s counsel emphasise in submission that the Court should not presume the plaintiff’s incapacity from the fact that she presents in a wheelchair. Her evidence describes a progressive deterioration in her condition which has no clinical basis.

The defendant submits that the evidence of the plaintiff driving as observed by the investigator and the evidence that she has obtained continuing prescriptions for the contraceptive pill in circumstances where she says she is unable to have a substantial sexual relationship with her husband point to an exaggeration by her of her disability, as do the observations of her by her workmate, Mrs Price.

I have already indicated I do regard the evidence of her driving as being of some significance. I do not regard the continuing use of the contraceptive pill as significant nor, as I have said, do the observations of Mrs Price add up to much.

Likewise I do not accept that rejection of asserted symptoms of nerve compression necessitates rejection of the plaintiff’s case as to discogenic pain and psychological reaction. Evidence of non-organic symptoms should be analysed in the same way as untruthful evidence to a court. As Kirby J stated in Whisprun Pty Ltd v Dixon:

[119] Lies and civil proceedings: Some judges in the past regarded untruthful evidence — even about peripheral or irrelevant matters — as fatal to a litigant. Most judges today understand that the evaluation of evidence involves a more complex function, requiring a more sophisticated analysis. Courts, after all, are not venues for the trial of the parties’ morality or credibility, as such. As judges often explain to juries in criminal trials, people sometimes tell lies in court and elsewhere for extraneous and irrelevant reasons, having nothing to do with the legal issues in the trial.77 If this is true in criminal trials, it is equally true in civil trials. What is important is not the proof of untruthfulness, as such, but the significance (if any) of any demonstrated falsehoods for the issues at trial. That significance can only be judged when measured against the entirety of the relevant testimony. By its logical force, that testimony may well require that falsehoods be ignored as irrelevant or immaterial to the decision-maker's ultimate conclusion. In particular cases, it may require the decision-maker, within the pleadings, to consider and decide a case different from — or even contrary to — that advanced by the party, because such is the legal entitlement of the person concerned.78
[120] Obligations of this kind recognise the ultimate duty of the decision-maker in an Australian court to decide a case according to law and the substantial justice of the matter proved in the evidence, not as some kind of sport or contest wholly reliant on the way the case was presented by a party. Litigants are represented in our courts by advocates of differing skills. Litigants are sometimes people of limited knowledge and perception. Occasionally, they mistakenly attach excessive importance to considerations of no real importance. In consequence, they may sometimes tell lies, or withhold the entire truth, out of a feeling that they need to do so or that the matter is unimportant or of no business to the court. This is not to condone such conduct. It is simply to insist that, where it is found to have occurred, it should not deflect the decision-maker from the substance of the function assigned to a court by law. [25]

[25](2003) 77 ALJR 1598, [119]-[120], footnotes omitted.

As Mr Brownbill stated the fact of some non-organic symptoms does not result in the automatic conclusion the plaintiff has no organic injury.

The defendant further contends that there is a paucity of evidence of disability save for the period of hospitalisation and recovery relating to repair of varicose veins from February 2009 to March 2009.

If the view of Mr Brownbill and Dr Mathews is preferred however, as to the nature of the injury to the plaintiff’s lumbar spine and its psychological consequences, it follows that the plaintiff has been unable to work save for limited initial periods since the date of the accident.

It also follows that what she has identified as her main complaint since shortly after the accident should be accepted, namely continuing pain in the lower back.

The particular matters which counsel have urged fall to be assessed within the context of my overall conclusions relating to the nature of the plaintiff’s injury.

Weighing up the evidence as a whole I assess damages for pain and suffering in the sum of $175,000.

I assess damage for past economic loss at the agreed sum of $700 per week for the past 309 weeks depreciated by 10 per cent for vicissitudes (including the ongoing risk that the plaintiff’s unsymptomatic degeneration in the lower back may have been rendered symptomatic by some other cause in the course of the continuation of her pre-existing active life). This results in a figure of $194,670. I accept that the plaintiff has not worked as a result of the disability arising from her injuries.

Fox v Wood[26] damages are agreed at $6,100.
[26](1981) 148 CLR 438.

The more difficult issue is the question of future economic loss. Although the plaintiff is relatively unskilled with a poor command of English, she has exhibited significant adaptability and application in the past. I am not positively satisfied that the plaintiff will continue to be unable to work into the long term future.

(a) Even if the pessimistic view of Mr Barrett be taken, she remains a good candidate for a fusion operation.

(b) I do not however accept her underlying physical injury is greater than that identified by Mr Brownbill.

(c) In turn the plaintiff’s psychiatric condition is founded upon reaction to this injury.

(d) There is a real prospect that the resolution of this proceeding will resolve the framework within which the plaintiff regards her current situation, as expressly contemplated by Mr Jones and implicitly contemplated by Dr Mathews.

(e) I accept Dr Mathews’ evidence that there is potential to materially assist the plaintiff if an appropriate interpreter can be found for the purposes of psychiatric treatment.

(f) The ordinary course of disc injury is that the symptoms improve.

(g) I accept that it is probable that the plaintiff will in the future be capable of performing jobs such as those described by Ms McPherson of feather sexing chickens and packing chicken pieces on trays.

(h) Whether conscious or unconscious the current element of exaggeration in the plaintiff’s presentation, is not capable of disaggregation in a way which enables a long term prediction of complete disability to be sustained on the balance of probabilities.

This said I would accept that the plaintiff is unlikely to return immediately to work and I accept that it is probable she will remain prevented by her injuries from doing so for at least a further two years. I also accept that the view espoused by Mr Brownbill and the weight of the specialist medical opinion as a whole justifies the conclusion that she should recover some compensation for permanent partial loss of earning capacity on a Farlow[27] basis.
[27]Victorian Stevedoring Pty Ltd v Farlow [1963] VR 594.

Allowing the agreed rate for future loss of $770 per week for two years and applying a 6 per cent discount rate with a multiplier of 98.5 gives a total of $75,845 which should be discounted by 15 per cent for vicissitudes resulting in a figure of $64,468.

The plaintiff has what counsel characterised as a ‘light work back’. Doing the best I can she should be further compensated at the rate of $100 per week for a further 20 years being the balance of her probable working life to the age of 65, discounted again by 15 per cent for vicissitudes.[28] Taking $100 per week with a multiplier of 616.3 results in a total of $61,630 less 15 per cent, resulting in a figure of $52,385.
[28]Evidence was given on behalf of the defendant that most of the women process workers employed at the Breakwater Plant are not over 60, but this does not justify rejection of the plaintiff’s case that she would if she could work to 65.

I assess total damages for economic loss as follows:

(a)

Past loss of earnings-

$194,670

(b)

Fox v Wood -

$6,100

(c)

Future economic loss -

$116,853

Total

$317,623

Say

$315,000

Accordingly, I assess the total damages at $490,000, including $175,000 for pain and suffering and loss of enjoyment of life.

I will hear counsel as to the appropriate orders in the matter.

(a)	Past loss of earnings-	$194,670
(b)	Fox v Wood -	$6,100
(c)	Future economic loss -	$116,853
Total	$317,623
Say	$315,000

[2010] VSC 488

28 October 2010