Chamani v Victorian WorkCover Authority
[2024] VCC 479
•19 April 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-05809
| Mohammad Chamani | Plaintiff |
| v | |
| Victorian WorkCover Authority | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1, 2 and 3 November 2023 | |
DATE OF JUDGMENT: | 19 April 2024 | |
CASE MAY BE CITED AS: | Chamani v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 479 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious Injury Application – lumbar spine – pain and suffering – surveillance - credit – reliability of evidence and medical opinions- range
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited:Barwon Spinners Pty Ltd & OrsvPodolak (2005) 14 VR 622; Dwyerv Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Haden Engineering Pty Ltd v McKinnon (2010) 21 VR 1; HuntervTransport Accident Commission & Avalanche [2005] VSCA 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181; Tatiara Wheat Co Pty Ltd v Kelso [2010] VSCA 12; TTB SMS Pty Ltd v Reading [2020] VSCA 203
Judgment: Application refused
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M. Pilipasidis SC with Mr S.G. Smith | Zaparas Lawyers |
| For the Defendant | Mr B. McKenzie | IDP Lawyers |
HIS HONOUR:
Introduction
1The plaintiff was born in 1964 in Afghanistan. He lives in Cranbourne East with his wife and three children. He suffered workplace injuries over a period of time from 2012 to 2017, and in particular, on 15 May 2017, whilst working as a fibreglass laminator in trucks for Freezer Back Trailer Hire. He undertook painting and maintenance inside of truck containers. He said that he often had to remove fibreglass from trucks, which he described as very strenuous. He said the work was generally heavy and physical, and required bending and twisting. None of the plaintiff’s account about his work duties and their nature was challenged in Court.
2The plaintiff was represented by Ms Pilipasidis of Senior Counsel, together with Mr Smith of counsel. The defendant was represented by Mr McKenzie of counsel.
3Pursuant to section 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”) the plaintiff seeks the grant of a Serious Injury Certificate for pain and suffering for injury to the lumbar spine under paragraph (a).
4The application was initially brought pursuant to paragraphs (a) and (c) of the definition of “serious injury” as that term is defined in section 325(1) of the Act. The particulars of the physical injury relied upon were:
Permanent serious impairment or loss of function of his intervertebral disc damage at L4/5 with right L5 nerve root impingement, aggravation of degenerative changes at L2/3, L3/4, L5/S1; injury to the right shoulder, by way of aggravation of degenerative changes; injury to the neck and upper back, by way of aggravation of degenerative changes.[1]
[1]The Plaintiff’s Particulars of Injury filed 22 April 2021.
5At the commencement of the hearing, Ms Pilipasidis abandoned reliance on paragraph (c), and pursued the application on paragraph (a) of the definition. Senior Counsel also abandoned the claimed injuries to the right shoulder and neck, and relied only on the consequences to the plaintiff from his lower back injury.
6The application had also pursued a loss of earnings claim, however, this was abandoned at the commencement of the second day of the hearing.
7The application was heard over three days. The defendant’s case relied very substantially on extensive surveillance footage of the plaintiff with some three hours and 24 minutes of footage played in Court in the course of the plaintiff’s cross-examination. The extent of surveillance and cross-examination on it, proved warranted.
Relevant Legal Principles
8The definition of “serious injury” contained in section 325(1) of the Act reads:
“‘Serious injury’ means –
(a) Permanent serious impairment or loss of a body function ….”
9The Court must not give leave to commence common law proceedings unless it is satisfied, on the balance of probabilities, that the “injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in section 325(1) of the Act.[2]
[2] Section 335(5) of the Act.
10To establish serious injury, the plaintiff must prove, on the balance of probabilities, that:
“the injury” suffered by him arose out of, or in the course of, or due to the nature of employment;[3]
[3] Section 327 of the Act; see also Barwon Spinners Pty Ltd & OrsvPodolak (2005) 14 VR 622 (“Barwon”).
“the injury” and resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[4]
the “consequences” of the impairment in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of body function “when judged by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked, and as being at least very considerable”.[5]
[4] Barwon (2005) 14 VR 622, 638 [33].
[5] Section 325(2)(c) of the Act.
11The requirement to satisfy these elements is sometimes referred to as the “narrative test.”
12The question of whether an injury satisfies the narrative test is largely one of impression or value judgment.[6]
[6]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592, 628; and Sabo v George Weston Foods [2009] VSCA 242, [67].
13In determining the “consequences” of the injury, the Court is required to consider them as they affect this plaintiff, viewed objectively, arising from the injury and according to an assessment of range of like impairments.
14In determining the application the Court:
must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[7]
must assess whether “the injury” is a “serious injury” as at the time the application is heard;[8]
must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application;[9]
[7] Section 325(2)(h) of the Act.
[8] Section 325(2)(j) of the Act.
[9] See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1, [23]-[26].
15In TTB SMS Pty Ltd v Reading,[10] Tate and T Forrest JJA had occasion to emphasise the essential aspects to which consideration is to be given on a serious injury application in a pain and suffering case, and these are:
(a) serious injury means permanent serious impairment or loss of a body function;[11]
(b) an impairment shall not be held to be serious unless the pain and suffering consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable;[12]
(c) in assessing the seriousness of the claimed impairment consequences, a Court is required to consider both the effects of the impairment and those aspects of the affected body function which remain unaffected.[13]
[10] [2020] VSCA 203.
[11] Section 325 of the Act.
[12]Section 325 of the Act. This formulation picked up the language in Humphries & Anor v Poljak [1992] 2 VR 129, which concerned similar provisions in the Transport Accident Act 1986.
[13]Dwyerv Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 (“Dwyer (No 2)”), [27] per Ashley JA; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181 (“Stijepic”), [44] per Ashley JA and Beach AJA; Tatiara Wheat Co Pty Ltd v Kelso [2010] VSCA 12, [77] per Ross AJA, quoting Dwyer (No 2) [2008] VSCA 260, [27]).
The Documentary Evidence
16The plaintiff tendered the following evidence in support of his application:
(a) Two affidavits of the plaintiff sworn 31 July 2020 and 18 August 2023;[14]
[14]Exhibit P1, Plaintiff’s Court Book (“PCB”) 7-14 & 54-58.
(b) Two reports of Mr Yagnesh Vellore dated 31 August 2017 and 14 December 2018;[15]
[15]Exhibit P2, PCB 59 & 62-63.
(c) Three reports of Dr Tooraj Chamacham dated 5 September 2018, 21 February 2022 and 20 August 2021;[16]
[16]Exhibit P3, PCB 64 & 66-68.
(d) Four reports of Dr Ali Kian Mehr dated 25 September 2018, 30 July 2020, 9 December 2020 and 11 August 2023;[17]
[17]Exhibit P4, PCB 69-71, 77, 83-88 & 94-100.
(e) Three reports of Dr Shahroze Khan dated 22 May 2019, 9 November 2022 and 30 August 2023;[18]
[18]Exhibit P5, PCB 101 & 105-110.
(f) Two reports of Dr Gavin Weekes dated 13 January 2021 and 24 October 2022;[19]
[19]Exhibit P6, PCB 115-122.
(g) Report of Professor Richard Bittar dated 21 March 2021;[20]
[20]Exhibit P7, PCB 127-130.
(h) Report of Dr Maryam Delavari dated 22 August 2023;[21]
[21]Exhibit P8, PCB 141-144.
(i) Two reports of Dr Hazem Akil dated 9 December 2020 and 24 October 2022;[22]
[22]Exhibit P9, PCB 150-162.
(j) Report of Dr James Rowe dated 8 November 2022;[23]
[23]Exhibit P10, PCB 169-185.
(k) Report of Dr Eman Awad dated 11 August 2023;[24]
(l) Radiology, including:[25]
(i)MRI of the lumbar spine dated 5 July 2017;
(ii)CT of the lumbar spine dated 21 August 2018;
(iii)Conventional & weight bearing MRI of the lumbar spine dated 4 October 2018;
(iv)Nerve conduction study report dated 20 November 2018;
(v)Nerve conduction study report dated 9 May 2019;
(vi)MRI of the lumbar spine dated 15 January 2020; and
(vii)Lumbar spine Xray dated 21 May 2020; and
[24]Exhibit P11, PCB 189-196.
[25]Exhibit P12, PCB 197-198, 200-203 & 205-208.
(m) Report of Dr Caroline Tan dated 31 May 2023.[26]
[26]Exhibit P13, Defendant’s Court Book (“DCB”) 64-70.
17The defendant tendered the following evidence:
(a) Three Reports of Dr Joseph Slesenger dated 6 April 2021, 30 May 2023 and 19 July 2023;[27]
(b) Certificates of Capacity dated 18 January 2023 – 5 July 2023;[28] and
(c) Surveillance footage dated 21 May 2023, 10 June 2023, 13 June 2023, 1 August 2023, 3 August 2023 and 4 August 2023.[29]
[27]Exhibit D1, DCB 27-63 & 71-83.
[28]Exhibit D2, DCB 111-126.
[29]Exhibit D3.
18By consent, a summary of the days and hours that the plaintiff was under surveillance, was provided to the Court. According to the summary, the plaintiff was under surveillance for 16 days and 95.25 hours of footage was obtained. There was 12 days, or 78.75 hours, over which he was not sighted. The footage shown in Court consisted of three hours and 24 minutes filmed on 6 days.
19The defendant admitted that the surveillance footage taken of the plaintiff from May to June 2024 was in the defendant’s solicitors possession on 27 June 2023. Footage taken in August 2024, came into the defendant solicitor’s possession on 29 August 2023.
The Issues
20In determining the application, I have had regard to the exhibits, the plaintiff’s cross-examination and re-examination and the final addresses of counsel. I have, however, referred only to such of the medical evidence referred to in cross-examination that proved necessary for me to arrive at my findings on the injury relied on and in order to explain my reasons.
21Much of the tendered material received in evidence ultimately proved to have little probative bearing on the issues to be determined, because it pre-dated surgery in the form of a right L4-5 microdiscectomy performed by Dr Hazem Akil on 5 March 2022, and the plaintiff accepted, that pain and symptoms in his right leg had markedly improved following his surgery, although he said this had not been the case with his low back.
22The defendant accepts that the plaintiff continues to labour from an accepted work injury for the plaintiff’s back, that occurred during the course of his employment and for which weekly payments continue to be made under the statutory scheme. However, the contest concentrated on whether the injury, as it is presently adjudged, is a serious injury, in light of the surveillance footage of the plaintiff obtained by the defendant, as well as concessions made by the plaintiff that call into question the reliability of parts of his evidence concerning his functional capacity, and therefore, the reliability of medico legal reporting relied on by the defendant.
The Plaintiff’s First Affidavit
The Plaintiff
23The plaintiff was born in Afghanistan but did not attend school in Afghanistan. He worked as a wheat farmer. He says he has retained the skills associated with that work.
24He came to Australia in 2007. He was in immigration detention until about 2010. He studied English and was on Centrelink for income. In Court, the plaintiff gave his evidence via an interpreter. I am satisfied that his command of English is for practical purposes non-existent.
The Injury
25In about 2010, the plaintiff obtained employment with Freezer Back Trailer Hire. He worked full-time. He assisted with truck maintenance. He was a fibreglass laminator. He would undertake painting and maintenance of the inside of truck containers. He would also work with pressure guns. He said that it was generally quite heavy, physical work. He had to lift and use a lot of heavy tools and various truck parts. There was considerable bending and twisting. He said that he often had to remove fibreglass from trucks which was very strenuous.
26The plaintiff experienced some back and shoulder pain in the course of his work. This seems to have commenced in about April 2012. He described it as worse after a long day at work, but it would settle down by the following day. He also had some neck pain and shoulder pain at times, which he also attributed to the heavy nature of his work.
27The plaintiff said his employer was aware of his back pain and had sent him to the company doctor at the Thompson Road Clinic.
28The plaintiff said that in 2013, he strained his upper back and neck and attended the Thompson Road Clinic for treatment. He said that his lower back continued to be painful on and off.
29In early 2014, the plaintiff again had neck pain and returned to the Thompson Road Clinic. Later that year, he experienced pain in his right arm and elbow, and was sent for an x-ray and ultrasound of his right shoulder on 26 June 2014.
30The plaintiff said that in March 2015, he was suffering from neck pain and attended at the Thompson Road Clinic on a few occasions.
31The plaintiff deposed that in early 2016, he experienced further right shoulder pain after doing “some physical stuff at work.”[30] He was sent for another x-ray and ultrasound. He said he was also having upper back and neck pain. He had a scan of his neck on 29 March 2016.
[30] Exhibit P1, PCB 9 [15].
32The plaintiff deposed that at about this time, his employer told him they would make his “role lighter, but nothing much changed.”[31] His employer referred him back to the Thompson Road Clinic for a full check- up.
[31] Exhibit P1, PCB 9 [16].
33He continued to attend the Thompson Road Clinic throughout 2016. He was referred for some physio and was provided with medication. He continued to have upper back and right shoulder pain, and low back pain. He had an x-ray of his middle back on 24 October 2016. He was also sent for another x-ray and ultrasound of his right shoulder on 3 November 2016.
34In December 2016, he experienced back pain after throwing something onto the top of a truck. He was sent for some physiotherapy. He said the pain continued until about mid-January 2017.
The Day of Injury
35The plaintiff deposed that he was injured at work on 15 May 2017. On that day, he was charged with the task of “re-skirting” a truck, that is, removing existing skirting that was stuck on with very strong glue. It took the plaintiff a lot of tugging, pushing and pulling to get it off. While engaged in this effort, together with a co-worker, he felt back pain that was “really bad” and extended into his legs.[32]
[32] Exhibit P1, PCB 9 [19].
Treatment
36The plaintiff attended Thompson Road Clinic the day after this injury. He said that he was off work for a few days and eventually he returned to light duties.
37He was sent for an injection into his back, and had physiotherapy for about six months, but he said this treatment did not make much difference. He continued to experience lower back pain extending into his right leg.
38Dr Prakash, the plaintiff’s general practitioner (“GP”), referred him for a lower back scan that was taken on 5 July 2017. Dr Prakash also referred him to neurosurgeon, Mr Yagnesh Vellore, whom he saw on 31 August 2017. Mr Vellore recommended that the plaintiff undergo surgery, but the plaintiff expressed some concern.
39The plaintiff saw Mr Vellore again on 6 December 2017. Once again, surgery was discussed.
40The plaintiff said that his employer was pushing his return to full-time work. He said he couldn’t cope with full time work and, in late March 2018, he stopped work.
41The plaintiff saw Mr Vellore again on 18 August 2018 and told him he did not want to undergo surgery. The plaintiff was referred for pain management.
42The plaintiff’s day-to-day medical care providers changed, and from about the middle of 2018, he commenced attending the Cranbourne Health Medical Centre General Practitioner Clinic. He said he had been experiencing language difficulties with the GPs at Thompson Road Clinic. He had another scan of his back on 21 August 2018, and an injection on 28 August 2018. He said that the injection helped his leg pain for a short period of time. He was also sent for further physiotherapy.
43The plaintiff was referred to Dr Ali Kian Mehr, rehabilitation specialist, whom he saw on 25 September 2018, as well as on several subsequent occasions and into 2019.
44On 4 October 2018, there was another scan of the plaintiff’s lower back. Dr Mehr referred him to Dr Gavin Weekes, Pain Specialist. He saw Dr Weekes from 2019 onwards. Dr Weekes administered an injection into his lower back on 22 July 2019 which the plaintiff said helped the pain in his leg for about a week.
45On 31 January 2019, the plaintiff had another injection into his lower back.
46From about February 2019, the plaintiff commenced attendance on Dr Shahroze Khan and who became his regular GP at First Health Medical Centre. He said that around this time he was feeling extremely depressed and even suicidal about his situation. Dr Khan provided him with some counselling.
47In early 2019, the plaintiff was experiencing neck pain. Dr Khan referred him for osteo treatment, and an x-ray of his neck was taken. He continued to have treatment on his lower back through 2019 from Dr Mehr and Dr Khan. On 22 July 2019, he had another injection.
48In the middle of 2019, he saw psychiatrist, Dr Ehsan Rahimikia for two appointments.
Pain and Suffering Consequences
49The plaintiff deposed that he suffers from constant aching lower back pain. Pain is worse when lying on his back and so he lies on his right side when in bed. He described pain that travels down into his upper left leg and is worse after standing or sitting for long periods or doing something strenuous.
50He said he experiences regular flareups of pain that presents randomly and pain regularly interrupts his sleep.
51The plaintiff said that he had enjoyed his job with the employer and he misses it.
52He said that most days are spent at home. His wife helps him with dressing and does most of the household chores.
53He is very depressed because of his situation. He worries about his family’s financial future. His physical restrictions frustrate him. He has lost confidence and self-esteem because he can no longer provide for his family.
The Plaintiff’s Second Affidavit
54The plaintiff deposed that he attended neurosurgeon, Dr Hazem Akil, who recommended surgery. The right L4-5 microdiscectomy was performed on 5 March 2022.
55The plaintiff said that prior to surgery, his right leg pain was so bad he required crutches but the surgery “helped quite a bit with that pain,” and he no longer needs crutches.[33] Nonetheless, he deposed that he continues to experience leg pain “each day and night.”[34] The pain remains constant, although its severity has lessened since the surgery. It is worst at night. He described a “pulling sensation,” that wakes him from sleep. However, overall, since the surgery, “things are better than before.”[35]
[33] Exhibit P1, PCB 55 [7].
[34] Exhibit P1, PCB 55 [8].
[35] Ibid.
Current Treatment
56The plaintiff said that he continues to attend pain specialist, Dr Ali Kian Mehr once a month and who also manages his medications. He said that Dr Mehr had tried him on a lot of different medications but “some have had side effects so I have needed to stop them.”[36]
[36] Exhibit P1, PCB 55 [9].
57The plaintiff otherwise deposed that he attends his:
(a) GP, Dr Sharoze Khan, twice a month;
(b) physiotherapist twice a week; and
(c) psychologist, once per month.
58As to medications, the plaintiff deposed to taking:
(a) Norflex 100mg, a prescribed pain relieving medicine one in the morning and one at night; but in further oral evidence in chief he said he takes 100mg at night;
(b) Panadol Osteo, a pharmacy obtained medication, two in the morning, two in the afternoon, and two at night. In further oral evidence in chief he said he now takes this “sometimes” for pain;[37] and
(c) Maxigesic, an over-the-counter pain relief combining paracetamol and ibuprofen, one in the morning, and one at night. In further evidence in chief he said he takes this now three times a day.
[37] T 8, L 5-6.
59In further oral evidence the plaintiff also deposed to taking Violfex M, an anti-depressant,[38] 50 mg once a day and Panamax 500 mg twice a day.
[38]The medication mentioned is an antihistamine and the identity of any psychotropic mediations was not better explained.
Consequences
60The plaintiff deposed that prior to the injury, he played volleyball with friends socially at the park, or sometimes at a gymnasium. He said that in summer he played almost daily but has been unable to play since his injury.
61He used to do the gardening at home. He has a small garden at the rear and at the front of his house, that he took care of, but he said this is now too hard for him, and the responsibility has fallen to his children. He said he misses gardening, and he “found it relaxing.”[39]
[39] Exhibit P1, PCB 56 [19].
62The plaintiff said that he used to be quite social in his community. He “would go to BBQs and Afghani functions.” Because of his “problems with standing and sitting,” he now attends such occasions far less frequently. He “feels like a drag” on his friends and he doesn’t have anything to talk about. He finds that attending such events is “uncomfortable.”[40]
[40] Exhibit P1, PCB 56 [20].
63The plaintiff deposed that he previously camped regularly with his friends and for a few days each Christmas. Although he went camping after his injury, he stopped about three years ago because he was not enjoying it anymore, and would spend most of his time “sitting inside the tent resting while everyone was having fun.”[41]
[41] Exhibit P1, PCB 56 [21].
64He deposed that in early 2023, he was considering travelling to Pakistan because his mother was sick but it did not transpire although he said that his mother is still unwell and he may visit her soon.
65The plaintiff said he went to Brisbane by car with his family and friends at Christmas 2022. He did not drive and there were regular breaks to enable him to get out and stretch.
66He deposed that his situation remains similar to what he described in his first affidavit. He continues to have “constant back pain, that is more on the right side” of his lower back. He said the pain makes it difficult to get to sleep, and it interrupts his sleep.[42]
[42] Exhibit P1, PCB 56 [24].
67He said his leg pain is worse after long periods of sitting, and that sitting and standing and walking for long periods make the pain worse, as does lifting. He said he continues to have some reduced sensation in his leg. He said that the range of movement in his back without pain, is limited. He cannot move freely in all directions anymore.
68He said that his wife needs to help him with some things that put strain on his back, such as dressing and putting on his socks and shoes. He said that he tries to help around the house, but he “can only do small things slowly.”[43] He said that his children, or his wife do most of the chores, which makes the plaintiff feel like he is not a good father.
[43] Exhibit P1, PCB 57 [26].
69He deposed that his back pain still flares up regularly, and he has to lie down for a few hours and take medications. Sometimes he falls asleep due to tiredness from a lack of sleep.
70The plaintiff said that he has neck pain on the right side of his neck that traverses to his right arm to the elbow. He said that the neck pain is a problem, but not as bad as his back pain.
71He deposed that his mental health is still not good and he is depressed about his life. He said that he is not suicidal but has been in the past. He does not feel like he has much to live for. He said that if not for his family, he does not know if he would try and live.
72He said that he is very anxious about how he will support his family in the future. He has low energy, low motivation and low self-esteem.
The Plaintiff’s Medical Evidence
Dr Ali Kian Mehr
73Rehabilitation specialist and neurophysiologist, Dr Mehr, provided four reports to the plaintiff’s solicitor, with his report dated 11 August 2023, post-dating the plaintiff’s surgery.[44] In that report, Dr Mehr summarised the plaintiff’s condition over the course of the numerous reviews conducted of the plaintiff since surgery.
[44]Exhibit P4, PCB 94-100.
74Following surgery, Dr Mehr reviewed the plaintiff on 21 April 2022. He recorded that the plaintiff’s “condition was much better. He still felt pain in his back, pain in the leg was much better but he felt intermittent pain when he walked with longer distances or used stairs.”[45]
[45] Exhibit P4, PCB 95.
75He examined the plaintiff again on 16 September 2022, six months after surgery, and recorded that:
His leg pain was definitely better but the back pain had not changed as expected in this sort of operation. His sitting tolerance was less than 20 minutes, he sits in an awkward position. He changes position all the time constantly. Standing tolerance was around 20 minutes and driving tolerance was 20 minutes. He could not bend, he could not lift or carry more than 1 or 2 kg and he could not twist. He could not kneel or squat. His walking tolerance was a bit better but not more than 40 minutes…[46]
[46]Exhibit P4, PCB 96.
76He last reviewed the plaintiff on 10 August 2023, and observed that the plaintiff’s lower back pain with radiation to the right leg had become worse. Dr Mehr was concerned about a recurrence of the plaintiff’s disc protrusion but said that clinical examination did not show major issues apart from straight leg raising which was positive at 30 degrees. He re-commenced the plaintiff on gabapentin 100 mg at night time to address his back pain and the radiation to the right leg that had worsened. The plaintiff did not depose, or attest in his additional evidence in chief, that he continued to be prescribed gabapentin. Dr Mehr reported that he had previously prescribed Endep for the plaintiff’s disturbed sleep, but neither did the plaintiff depose or attest that it is currently prescribed. Dr Mehr added that psychologically, the plaintiff has been significantly affected, he is depressed and anxious and suffers from anxiety and insomnia.
77Dr Mehr relevantly diagnosed:
1. Chronic lower back pain post right L4/L5 microdiscectomy.
2. Shooting pain to the right leg in the L5 territory which is right L5 radiculopathy. This is a post lumbar spine operation persistent pain.[47]
[47]Ibid.
78Dr Mehr’s prognosis for the plaintiff’s chronic pain and back and leg condition was poor, due to the “chronicity of the condition and the partial response to the treatment provided.”[48] He also considered that the plaintiff’s prognosis for a return to any physical work and his pre-injury work was poor “due to significant impact of the injury on his physical ability.”[49]
[48] Exhibit P4, PCB 97.
[49]Exhibit P4, PCB 97.
79Dr Mehr thought that the plaintiff’s condition was permanent. Dr Mehr postulated that the plaintiff “may require further operation in the future because of the recurrence of other condition. He may need some minimally invasive procedures in the future for management of the pain.”[50]
[50] Exhibit P4, PCB 95.
Dr Shahroze Khan
80The plaintiff tendered three reports from GP Dr Khan dated 22 May 2019, 9 November 2022, and the most recent being from 30 August 2023.[51]
[51]Exhibit P5, PCB 101, 105-110.
81In his report dated 9 November 2022, Dr Khan recorded:
Mohammad had restricted and painful flexion and extension of his lower back. He has been unable to bend/squat/kneel, unable to lift/push/pull more than 2 kg, unable to sit/stand/drive for more than 15 minutes. He needs to constantly change his position to get some relief from his pain. He finds it very hard to sleep at night due to severe back pain.[52]
…
[52]Exhibit P5, PCB 105.
In regards to his lower back injury: He is unable to push/pull/lift more than 2 kgs, he is unable to do repeatitive [sic] pulling/pushing/lifting. He is unable to bend unless he really has to. He should avoid reaching/twisting and stooping. He should avoid prolonged sitting/standing and walking. He has no capacity to return to his pre-injury duties in regards to his back pain. He is unable to return to work in any capacity in regards to his back injury. He is also unable to take part in Leisure activities/sports/social activities due to his severe back pain.
In regards to his neck injury: he is unable to push/pull/lift more than 5kgs, he is unable to do repeatitive [sic] pulling/pushing/lifting. He needs to avoid reaching/twisting and stooping. He should avoid repeatitive [sic] neck movements. He is unfit to return to his pre-injury duties. It is hard to comment if he can return to modified duties in regards to his neck injury. His Leisure and social activities are quite restricted due to his neck pain.
In regards to his right shoulder: He is unable to push/pull/lift more than 2 kgs, he is unable to do repeatitive [sic] pulling/pushing/lifting. He should avoid doing overhead activities. His gripping and holding capacity are not affected. He is unable to carry more than 2-3 kgs. His typing and writing capacity is not affected. He is able to hold tools but is not able to use them as he may be required to do repeatitive [sic] movements. He is unable to return to pre-injury duties. He is fit for suitable duties in regards to his shoulder injury. His leisure and social activities are somewhat restricted due to his right shoulder pain. [53]
[53]Exhibit P5, PCB 106.
Dr Gavin Weekes
82Dr Weekes prepared two reports for the plaintiff’s solicitors dated 13 January 2021 and 24 October 2022.[54]
[54]Exhibit P6, PCB 115-122.
83Dr Weekes second report dated 24 October 2022 was prepared on the papers. It appears that he has not reviewed the plaintiff following surgery. He noted that his understanding from his review of the plaintiff’s file, was that he continued to suffer from ongoing chronic lower back pain and had continued to describe various functional limitations, including a sitting, standing and driving tolerance of 20 minutes.
84Dr Weekes offered a diagnosis of chronic lower back pain secondary to lumbar spondylosis and right L5 radiculopathy. He said that the plaintiff “now presents with signs and symptoms of persistent postoperative lumbar surgery pain syndrome.”[55]
[55] Exhibit P6, PCB 118.
85Dr Weekes considered that the plaintiff’s pain would continue for the foreseeable future. Furthermore, he was restricted in relation to activities that involve “pushing, pulling, lifting, repetitive pushing, pulling, lifting, bending, reaching, twisting, stooping, prolonged sitting and standing” as had been reported by the plaintiff, for the foreseeable future.[56]
[56] Exhibit P6, PCB 119.
Dr Hazim Akil
86The plaintiff’s treating neurosurgeon Dr Akil provided a report to the plaintiff’s solicitors dated 24 October 2022.[57] He recorded that he performed a right L4-5 microdiscectomy on the plaintiff on 5 March 2022. He saw the plaintiff for a routine follow up on 11 May 2022. This was the last time Dr Akil saw the plaintiff as a treater. He next reviewed the plaintiff on 24 October 2022 for the purpose of providing a medico legal report.
[57]Exhibit P9, PCB 155-162.
87Dr Akil noted that the surgery he performed had resulted in an improvement in the plaintiff’s leg pain. The plaintiff was taking Panadol and Norflex for pain relief and Dr Akil recorded his presenting symptoms as follows:
1) He continues to have lower back pain. The pain is constant and severe and present the whole time. It is present in the lumbosacral region and radiates towards the right side more than the left. It prevents him from sleeping and from sitting or standing for reasonable periods. He also finds himself unable to hold himself straight.
2) He is also experiencing pain in the right side of his neck with radiation towards his upper shoulder since the accident. The pain radiates all the way down towards his elbow.
3) He used to experience persistent right leg pain. Following the operation in March 2022 the right leg pain has improved significantly and he feels it when he sits for prolonged periods primarily in the hamstring region.[58]
[58] Exhibit P9, PCB 156.
88On examination Dr Akil recorded the following:
A) Neck and upper limb examination
I noted that Mr Chamani has restriction in the range of motion of his cervical spine in all directions particularly on the lateral rotation of the head towards the right.
I noted that Mr Chamani has tenderness and palpation of his right shoulder and limited internal rotation of the right shoulder.
I noted that Mr Chamani did not have any clear motor or sensory deficit in both upper limbs and his deep tendon reflexes were present and normal.
B) Lower back examination
I noted that Mr Chamani is able to forward flex his lumbar spine to beyond 45° but the extension of his lumbar spine was 0° and very limited.
I noted that his straight leg raise on the right is limited to 30° whereas on the left is 45°.
I noted that he has persistent reduced sensation in the right L5 dermatome.
He has a mild weakness of 4+/5 in his right ankle dorsiflexion. His deep tendon reflexes where reduced in both ankles.[59]
[59] Exhibit P9, PCB 157.
89Addressing a diagnosis of the lower back, Dr Akil remained of the view that the plaintiff presents with an aggravation of lumbar spondylosis that resulted in an L4-5 discogenic pain and disc prolapse with compression of the right L5 nerve roots, resulting in radiculopathy. Regarding the neck injury, Dr Akil considered that the plaintiff was portraying symptoms compatible with an aggravation of cervical spondylosis and a local right shoulder injury.
90Dr Akil believed the prognosis for the plaintiff’s back and neck pain was poor and these conditions affected the plaintiff’s life as follows:
Impact on life
Mr Chamani feels depressed following his injury and the constant pain. He does not have any hobbies that he practiced prior to the injury but he is struggling with walking, gardening and looking after his household. He relies on his elderly sons for daily activities.[60]
[60] Exhibit P9, PCB 159. The plaintiff is not elderly and less so his sons.
Dr James Rowe
91Occupational physician Dr Rowe provided a report at the request of the plaintiff’s solicitors dated 8 November 2022.[61]
[61]Exhibit P10, PCB 169-185.
92Dr Rowe wrote that the plaintiff said that he had not experienced a real improvement in his neck, right shoulder or lower back pain. He said he was restricted with standing and sitting for over 15 minutes and in bending, kneeling, squatting, lifting, pushing and pulling. He related “considerable difficulty” sleeping.
93Regarding activities of daily living, Dr Rowe reported:
He is mostly independent in his self-care activities, but his wife does help him with some dressing, particularly putting on his socks and shoes. He tries to be helpful around the house but is very limited. His wife and children perform the household chores, cooking and cleaning. He says he cannot do any vacuuming, laundry, gardening or heavy cleaning.
His injuries have had a profound effect on his psychological health. He reported depression with suicidal ideation in the past. He has become socially withdrawn and his enjoyment of life is diminished.
He says he does not have any hobbies and he does not play any sport.
He can drive but is limited to short, local distances. [62]
[62]Exhibit P10, PCB 173.
94Dr Rowe said that on examination the plaintiff demonstrated “very limited movements of the lower back. Flexion, extension and lateral rotation and flexion to both the left and right sides were all restricted and painful. There was loss of range of movement about the cervical spine and the right shoulder. The range of movement about the right shoulder was less than 20% of normal in any direction. He had impaired sensation about the lateral toes of the right foot, consistent with an L5 nerve root irritation.”[63]
[63]Exhibit P10, PCB 174.
95Dr Rowe did not think the plaintiff’s prognosis for his lower back was good because his symptoms are chronic and despite surgery having improved his radicular symptoms, it had not improved his low back pain.
96Dr Rowe reported that the plaintiff told him that he suffered severe back pain that was aggravated by minor activities. He presented with symptoms of radiculopathy in the right leg which made prolonged sitting, standing and walking difficult. He thought that the prospects of a successful return to work were slim.
97Based on the plaintiff’s low back injury alone, Dr Rowe considered that he was restricted in activities involving:
- Pushing, pulling and lifting (including repetitively);
- Bending, reaching, twisting and stooping;
- Prolonged sitting, standing and walking;
- Walking up and down stairs;
- Driving longer distances.[64]
[64] Exhibit P10, PCB 181.
98Dr Rowe regarded the restrictions as likely to be permanent noting that it had been over five years since the plaintiff had stopped working and there had been no real improvement in his condition.
Dr Eman Awad
99At the request of the plaintiff’s solicitors, Dr Awad, an occupational health specialist, prepared a medico legal report dated 11 August 2023.[65]
[65]Exhibit P11, PCB 189-196.
100On examination he noted that the plaintiff was able to walk slowly from the waiting room to the consultation room. The plaintiff also had a “marked reduction in range of movement of his cervical and lumbar spine.”[66]
[66]Exhibit P11, PCB 193.
101Dr Awad diagnosed:
1. L4/5 disc prolapse with L5 radiculopathy requiring surgery.
2. Persistent postoperative pain.
3. Aggravation of cervical spondylosis.
4. Right shoulder tendinopathy.[67]
[67]Ibid.
102Dr Awad thought that the plaintiff had no capacity for his pre-injury duties or for suitable employment.
Dr Caroline Tan
103Neurosurgeon, Dr Tan, provided a report to the plaintiff’s solicitors dated 31 May 2023.[68] Dr Tan took a history from the plaintiff that following surgery his right lower limb pain improved, and he thought that it was a “significant improvement as he was immediately able to walk without crutches. However, the lower back pain was unchanged.”[69]
[68]Exhibit P13, PCB 64-70.
[69] Exhibit P13, PCB 65.
104As to the plaintiff’s current presentation Dr Tan recorded:
Nowadays, he has residual pins and needles in the right lower limb and continuing low back pain. He is still on pain relieving medications. He is still having physiotherapy. He is not sure what is causing his pain. He said that his doctors have told him that the surgery was to relieve the leg pain, not the back pain and now there is nothing more that can be done and he is likely to have to live with the pain that is left.[70]
[70]Ibid.
105The plaintiff complained to Dr Tan of constant lower back pain. She wrote that:
He placed his thumbs over his mid- to lower back to indicate the location of the pain. The pain spreads upwards and sideways. He described the pain as going into the right buttock and as he said this, he stuck a finger on one spot in his right buttock. He said that he feels as if the bones of the lower back have been pulled apart or separated. Any level of activity, even brushing his teeth, can trigger increased pain. However, he cited cleaning his plate at the sink, walking for more than 15 minutes or sitting for more than 10-15 minutes as causes for the pain to worsen. He tries to take weight off his back by transferring his weight through the armrests of the chair. It is difficult for him to lie on his back for more than 2-3 minutes. He can lie on his left side but he cannot comfortably lie on his right side. He sleeps on the left side for one or two hours. Then he shifts to lie on the right side of his stomach with his head turned to the side for 10-15 minutes but his neck stiffens in that position so then he returns to lying on his left side. Sometimes when he cannot sleep, he will get out of bed and walk around for a bit before going back to bed. His sleep is very broken.
There is constant aching pain in the right lower limb but it makes up only 10-15% of his total pain. There is also an intermittent sensation of pins and needles in the right lower limb to the calf and ankle which happens two or three times a day, for only a few minutes at a time. Some nights he experiences a pulling sensation in the right calf area with accompanying stiffness, like a cramp. There is some numbness that is felt in the sole and toes of his right foot.
His walking is limited to 15 minutes but this includes making stops to lean on a fence because of his back pain.
He relies on paracetamol for pain management during the day and at night he uses tablets to help him sleep.[71]
[71]Exhibit P13, PCB 65-66.
106Dr Tan thought that the plaintiff’s prognosis is poor. She observed nothing obvious to suggest that the plaintiff was feigning illness, however, she strongly suspected that “cultural and social factors are leading to some magnification of his symptoms.”[72]
[72]Exhibit P13, PCB 70.
The Defendant’s Medical Evidence
Dr Joseph Slesenger
107Occupational physician, Dr Slesenger, prepared three reports for the defendant’s solicitors dated 6 April 2021, 30 May 2023 and 19 July 2023.[73] I have referred only to his two later reports that post-date the plaintiff’s surgery in March 2022.
[73] Exhibit D1, DCB 27-63 & 71-83.
The Second Report of 30 May 2023
108Dr Slesenger noted that when he first evaluated the plaintiff, he reported residual lower back pain that he described as “constant, centred in the lower back with radiating pain into the right leg.”[74] The plaintiff had described his pain as sharp, particularly at night, and he said that he suffered severe pain on walking.[75] The plaintiff had further described residual pain in the right hand side of his neck, that was associated with headaches and dizziness, and he said that his neck movements were restricted. He reported as well that his right shoulder symptoms persisted and that he had difficulty with over shoulder and forward reaching, and difficulty reaching his back and lying on his right side.[76]
[74] Exhibit D1, DCB 30.
[75]Exhibit D1, DCB 48,
[76]Ibid.
109Dr Slesenger noted that the spinal surgery performed by Dr Akil in March 2022 was “partially successful” in relieving the plaintiff’s right leg symptoms, and that he was able to mobilise without crutches, but his lower back pain persisted.[77]
[77]Exhibit D1, DCB 52.
110On examination, Dr Slesenger observed the following:
Gait:
· He walked with a pronounced right-sided limp with reduced weightbearing on the right side.
NOTE: his gait improved upon distraction.
Cervical spine:
· Inspection: revealed no trophic changes, no scarring.
· Palpation: there was tenderness over the lower right cervical spine.
oRange of movements:
oFlexion: 10 degrees.
oExtension: 10 degrees.
oRight rotation: 20 degrees.
oLeft rotation: 20 degrees.
oRight lateral tilting: 20 degrees.
oLeft lateral tilting: 20 degrees.
NOTE: his range of cervical spinal movements improved upon distraction.
Lumbar spine:
· Inspection: revealed an incisional scar over the lumbar spine measuring 2.5 cm. The scar was well-healed.
· Palpation: there was tenderness over the scar and the paraspinal musculature.
· Range of movements:
oFlexion: 10 degrees.
oExtension: 10 degrees.
oRight rotation: 20 degrees.
oLeft rotation: 20 degrees.
oRight lateral tilting: 20 degrees.
oLeft lateral tilting: 20 degrees.
NOTE: his range of lumbar spinal movements improved upon distraction.[78]
[78] Exhibit D1, DCB 54.
111Dr Slesenger also commented on the following inconsistencies in the plaintiff’s initial presentation:
· Improved range of movements of the cervical spine upon distraction.
· Improved lumbosacral spinal movements upon distraction.
· Positive response to simulation testing.
· Absence of wasting around the right shoulder despite the weakness and restricted range of movements.
· Inconsistent weakness throughout the right upper limb.
· Inconsistent weakness throughout both lower limbs.
· An even wear on the base of Mr Chamani’s shoes despite the limp demonstrated at evaluation.[79]
[79] Exhibit D1, DCB 51.
112With respect to function, the plaintiff told Dr Slesenger that he could walk for five minutes, and sit and stand for 20 minutes. Dr Slesenger recorded that the plaintiff “could dress, wash, shower and toilet himself, but he did so slowly.”[80] He required assistance from his wife to dress, he slept no more than one to two hours at night, and was “spending his days indoors, watching TV, but was not using the internet and did not read.”[81] Dr Slesenger reported that the plaintiff was not engaging in domestic duties, or any sports or hobbies and he was able to drive an automatic car for up to five minutes.[82]
[80] Exhibit D1, DCB 50.
[81] Ibid.
[82] Ibid.
113The plaintiff told Dr Slesenger that he continued to “receive support from his wife with washing his lower legs and dressing (shoes and socks)” but was otherwise able to attend to his own personal care.[83]
[83] Exhibit D1, DCB 53.
114Dr Slesenger said that that the plaintiff had sustained the following injuries:
· Lumbar spine:
o Soft tissue injury.
o Aggravation of degenerative disease of the lumbar spine.
o Chronic lower back pain with radiating features with confirmed evidence of radiculopathy.
· Cervical spine:
o Soft tissue injury.
o Chronic neck pain.
· Right shoulder:
o Soft tissue injury, now resolved.[84]
[84] Exhibit D1, DCB 51.
115Dr Slesenger said that the plaintiff was suffering from degenerative disease of the axial spine that had been rendered symptomatic as a result of the work incident. He was also satisfied that the plaintiff’s lumbar spine impairment was materially contributed to by the injury.
116Dr Slesenger, however, considered that there was a significant functional element to the plaintiff’s presentation and a nonphysical basis to the plaintiff’s impairment and referred to the physical examination he conducted of the plaintiff that revealed:
· Gait abnormalities that improved upon distraction.
· Even wear on the base of his shoes.
· Improved range of cervical and lumbar spinal movements upon distraction.
· Absence of wasting around the right upper limb despite the weakness and restricted range of movements identified.
· Failure to avoid the right side (he lifted his bag on his right side when departing the consultation room) and the keratinisation on both hands also indicated that he was not avoiding the right side.[85]
[85] Exhibit D1, DCB 61.
117Dr Slesenger did not consider that the plaintiff had the capacity to return to his pre-injury employment and recommended that the plaintiff adhere to the following restrictions:
·No push, pull, carry or lift over 10 kg on an occasional basis and 5 kg on a repetitive basis.
·Avoid prolonged static postures.
·Avoid exposure to whole body vibration.[86]
[86] Ibid.
The Third Report of 19 July 2023
118Dr Slesenger’s third report dated 19 July 2023 was prepared on the papers. He was provided with a vocational assessment report prepared by Recovre dated 23 December 2021 and was asked to comment on the plaintiff’s capacity for suitable employment.
119Dr Slesenger noted the inconsistencies in the plaintiff’s presentation that I have extracted above, and he considered that the plaintiff had capacity for suitable employment with restrictions on pushing, pulling, carrying and lifting over 10 kg on an occasional basis and 5 kg on a repetitive basis and that he should further avoid prolonged static postures and exposure to whole body vibration.[87]
[87] Exhibit D1, DCB 78.
Certificates of Capacity
120The defendant tendered various certificates of capacity completed by the plaintiff’s GP, Dr Khan, that certified him as having no capacity for employment.[88] The most recent certificate was dated 5 July 2023.
[88]Exhibit D2, DCB 111-126.
The Plaintiff’s Examination in Chief
121The plaintiff adopted his affidavit evidence as true and correct, save for an adjustment to the medications he was taking and his further evidence in chief about this, that I have set out earlier in these reasons.
The Plaintiff Cross-Examined
The Documentary Evidence
The Affidavits
122At the commencement of cross-examination, the plaintiff was directed by Mr McKenzie to the following paragraphs from his first affidavit:
I continue to suffer from constant aching lower back pain. It is worst when lying flat on my back. I had to lie on my right side when in bed. From my back, the pain seems to go down into my upper left leg.
The pain gets worse after standing or sitting for long periods, or doing something strenuous that involves my back.
I get regular flare ups of my pain. These can happen at random or because I do a movement that isn’t good for me. I am pretty useless when they come on. I have to take my medications and lie down.[89]
…
I mostly stay at home these days, although I do go walking often around the local park. I will also go shopping with my wife sometimes. My wife helps me with things like dressing and does most of the household chores since these are no good for my back.[90]
…
I do not feel capable of working anymore due to my back pain. I have only ever worked in physical employment and I can’t do that anymore. I don’t know anything else.[91]
[89] Exhibit P1, PCB 11-12 [9]-[41].
[90] Exhibit P1, PCB 12 [45].
[91]Exhibit P1, PCB 12 [47].
123The plaintiff maintained that his account was true and correct.
124He was next taken to the following paragraphs from his second affidavit:
I am not looking for work. I don’t believe that I have the capacity for work. I find it difficult to stand or walk or sit for long periods, or to lift heavy things. And I have only really worked with my hands in my life.[92]
[92]Exhibit P1, PCB 55 [16] (emphasis added).
…
I used to do the gardening at home. We have a small garden at the back and the front of the house which I would take care of. But this is too hard for me now, so my kids do it. I miss gardening, I found it relaxing.[93]
…
Otherwise my situation is very similar to the way I described it in my previous affidavit. I have constant back pain, more on the right side of my lower back. It makes it difficult to get to sleep and also interrupts my sleep, like the leg pain that I mentioned. The leg pain gets worse after long periods of sitting. As I said, sitting and standing and walking for long periods make the pain worse, and so does lifting. The range of movement of my back is limited without pain and I can’t move it freely in all directions anymore.[94]
…
[93] Exhibit P1, PCB 55 [19] (emphasis added).
[94] Exhibit P1, PCB 56-57 [24] (emphasis added).
My wife needs to help me with some things that put strain on my back like dressing and putting on my socks and shoes. I try and do my best to help around the house but I can only do small things slowly. My children or my wife do most of the chores which makes me feel like I am not a good father.[95]
[95] Exhibit P1, PCB 56-57 [26].
125The plaintiff confirmed these paragraphs extracted from his second affidavit to be true.
The Medical Evidence
126Mr McKenzie directed the plaintiff to a certificate of capacity dated 18 January 2023. The plaintiff had ticked ‘no’ on the certificate in answer to the question “at any time since the last certificate of capacity was provided, have you engaged in any voluntary work or any form of employment or self employment, or have you received or been entitled to receive payment of money or otherwise?”[96] Mr McKenzie took the plaintiff to other certificates dated 15 May 2023, 31 May 2023 and 19 June 2023.[97] The plaintiff agreed with Mr McKenzie that in each of the certificates, he had ticked no to that question.
[96] Exhibit D2, DCB 112.
[97]Exhibit D2, DCB 120-124.
127The plaintiff was referred to Dr Slesenger’s reports. The plaintiff agreed that he had attended Dr Slesenger for examination on 21 May 2023 and that he had told Dr Slesenger that prior to his surgery, “the pain was a lot severe going down the right leg but after the operation it's a bit less.”[98] The plaintiff said that he had “constant neck pain,” but “the main pain and severe pain” was his lower back.[99]
[98] T 11-23, L 31-2.
[99] T 12, L6-8.
128Mr McKenzie read to the plaintiff part of Dr Slesenger’s report headed “current activities of daily living” in which he recorded:
Mr Chamani continues to receive support from his wife with washing his lower legs and dressing (shoes and socks). Otherwise, he is able to attend to his own personal care.
He advised that he falls asleep around 10:00 pm and wakes around 1:00 am. He will then walk and go back to bed and usually rises around 6:00 am. He spends his days indoors, watching TV, attending to the Internet or occasionally walking outside.
He is not engaging in any domestic duties.[100]
[100]Exhibit D1, DCB 53.
129The plaintiff agreed that his wife assists him with washing and dressing, as Dr Slesenger had recorded, and that he spends his days indoors. He agreed that he told Dr Slesenger that he does not engage in any domestic activities.
130The plaintiff agreed that he had presented to Dr Slesenger with “a pronounced right-sided limp with reduced weightbearing on the right side.”[101]
[101]Exhibit D1, DCB 54.
131Mr McKenzie suggested that the plaintiff’s limp was better when he was not concentrating on it, and the plaintiff said:
So, it varies. Sometimes I have very severe pain, sometimes I have less pain. So, sometimes that I have severe pain so I sort of put my weight more towards one side. But sometimes I don't. It depends on how much activity I did or how much I walked or what I did prior to that.[102]
[102]T 13, L 12-17.
132Dr Slesenger had also examined the plaintiff’s neck, and recorded that flexion was 10 degrees, and right and left rotation was 20 degrees.[103] Mr McKenzie asked the plaintiff about this, and the plaintiff said, “I'm like that most of the time because if I try to push harder, the pain becomes severe.”[104] He said that the pain in the left side of his neck was a bit less than the right side.
[103] Exhibit D1, DCB 54.
[104] T 13, L 26-28.
133The plaintiff agreed with Dr Slesenger’s report that the flexion and extension of his lumbar spine was limited to 10 degrees. Dr Slesenger had recorded that, as with his neck, the plaintiff’s range of lumbar spine movements improved when he was distracted.[105] The plaintiff said, “so it depends again on the pain. Sometimes it's very severe, sometimes it's not so. It depends on the pain.”[106] He agreed he told Dr Slesenger that he had not returned to work.
[105] Exhibit D1, DCB 54.
[106] T 14, L 11-12.
134Mr McKenzie questioned the plaintiff about certain matters Dr Tan had referred to in her report.[107] The plaintiff confirmed telling Dr Tan that he suffered from constant low back pain that felt as though the bones in his lower back had been pulled apart or separated. The plaintiff agreed he told Dr Tan that “any level of activity, even brushing his teeth, can trigger increased pain. However, he cited cleaning his plate at the sink, walking for more than 15 minutes or sitting for more than 10-15 minutes as causes for the pain to worsen.”[108]
[107] Exhibit P13, DCB 64-70.
[108] Exhibit P13, DCB 65.
135Mr McKenzie read to the plaintiff that part of Dr Tan’s report addressing his “limitations on activities” that she expressed this way:
He can undress and dress himself although putting on socks is difficult. If his wife is free, she helps him to shower his lower body eg. his legs. Otherwise, if he is on his own, he just showers his upper body. He uses a clipper to trim his beard. He does not do any work around the house. He leaves domestic work to his wife and middle son. He accompanies his wife to shops but does not do any of the shopping. He has a driver’s license. He can drive for 10-15 minutes before he has to stop due to lower back pain. Sitting upright in the car is the most comfortable; if he leans backwards on the car seat, then the pain comes on.[109]
[109] Ibid.
136The plaintiff agreed that he reported these limitations on activities to Dr Tan. As far as dressing is concerned, the plaintiff said, “upper body, yes, I'm able to do my own things but lower body it's a lot harder.”[110] In answer to whether he told Dr Tan that his wife showers his lower body, and his legs, he said “yes, I did say sometimes.”[111]
[110] T 15, L 17-18.
[111] T 15, L 20.
137Mr McKenzie referred the plaintiff to Dr Awad’s report dated 11 August 2023. Dr Awad reported on the plaintiff’s symptoms in the following terms:
1. Back. Mr Chamani reports constant back pain with a severity of 7/10 that increases to 9/10 on aggravation on a numerical scale. He tells me that his pain is in his lower back and radiates to his right leg, but with less severity postoperatively. He describes numbness to the back of his leg through to his ankle. He tells me aggravators are fixed stationary positions such as sitting or lying and alleviators tend to be heat packs or massagers.
2. Shoulders. He tells me that he has bilateral shoulder pain, which is intermittent that radiates to the top of his arms. He denies any numbness or paraesthesia associated with this but tells me both shoulders feel weaker. He states his pain is worse when lying on his right shoulder, which is more affected than his left.
3. Cervical spine. He tells me that he has a constant pain in his neck particularly worse on the right side. He tells me that this is associated with cervicogenic headaches and he scores this as a 5-6/10 on a numerical scale.
4. Mental health. He indicated that he is irritable, sad and anxious. He has become withdrawn and tells me that he feels worthless as his life is now over. His sleep is disturbed.[112]
[112] Exhibit P14, PCB 192.
138The plaintiff agreed that Dr Awad’s report of the level and occurrence of pain in his lower back, shoulders and neck, was accurate.
139The plaintiff agreed he told Dr Awad that he could sit for 15 minutes, stand for five minutes, and drive for 15-20 minutes. He said that dressing, particularly putting on his socks, shoes and pants was challenging. He also agreed he told Dr Awad that he undertook no domestic chores, but can do the grocery shopping with assistance.
140Mr McKenzie directed the plaintiff to the report of Dr Rowe dated 8 November 2022, who said that:[113]
Since I last saw him, he had continued to suffer with low back pain, neck pain and right shoulder pain. He described weakness in the right leg with pins and needles about the right foot, but there has been some improvement in his leg symptoms since his surgery.
He says there has been no real improvement in his neck, right shoulder or low back pain.
He continues to report restrictions on standing and sitting (maximum 15 minutes), bending, squatting, kneeling, lifting, pushing and pulling. He needs to constantly adjust his position to relieve his pain and continues to have considerable difficulty sleeping.
…
He is mostly independent in his self-care activities, but his wife does help him with some dressing, particularly putting on his socks and shoes. He tries to be helpful around the house but is very limited. His wife and children perform the household chores, cooking and cleaning. He says he cannot do any vacuuming, laundry, gardening or heavy cleaning.[114]
[113]Exhibit P10, PCB 169-185.
[114] Exhibit P10, PCB 173.
141The plaintiff confirmed Dr Rowe’s account.
142Asked if the pain and restrictions he had reported to Dr Rowe in November 2022 had improved at all, the plaintiff said, “no, no different.”[115]
Video Surveillance of the Plaintiff
[115] T 18, L 28.
Surveillance Taken 21 May 2023
143The first surveillance played by the defendant was filmed on 21 May 2023, the day the plaintiff attended Dr Slesenger for examination. The footage captured the plaintiff being driven by his son to the examination with Dr Slesenger at 11:25 am and being collected by his son from Dr Slesenger’s rooms at 12:25 pm. The plaintiff was observed walking with a limp, before being driven home from the examination. Footage taken from 1:00 pm that day, captured the plaintiff assisting his two sons with mechanical work on a car in the garage adjacent to the plaintiff’s house. The plaintiff was seen:
(a) bending down and picking up a rag;
(b) leaning into the engine of a vehicle;
(c) walking out of and then back into the garage area, kneeling down beside the car with a tool;
(d) standing up and then bending down to the ground to pick something up off the ground. In answer to whether he agreed with this description of his activity, the plaintiff said he did;
(e) squatting down and leaning to look under the car;
(f) kneeling at the front of the car, and then lying down on the floor of the garage floor looking under the car. The plaintiff agreed with this description of his activities but also said that “if I put my knees on the floor, the position that I am, I am able to do that, yes.”[116]
(g) standing up after lying on the floor, walking outside of the garage, and returning with a couple of rags and proceeding to bend down and hand the rags to his son, who was working under the car. The plaintiff then proceeded to squat and kneel in front of the vehicle.
[116] T 22, L 10-12.
144This process of firstly observation, and then characterisation of activities observed in surveillance and put to the plaintiff by Mr McKenzie, proceeded in much the same way during the footage of the plaintiff from 1:19 pm until 1:34 pm. The plaintiff was observed squatting and standing, bending and kneeling, to look under the car, and leaning over the bonnet of the car, all without any observable restriction to his movements.
145The surveillance footage from 1:40 pm until 1:44 pm captured the plaintiff in his front garden, bending down multiple times, and then bending over and maintaining his back bent for a short time.
146From 1:44 pm until 2:20 pm, the plaintiff was observed again working on a vehicle in the garage. The plaintiff agreed with Mr McKenzie that the activities that he was observed to be engaged in, included kneeling at the front of the car with a power drill in his hand, and one minute later, standing up and changing position, and squatting down again next to the car with the power drill, while maintaining that position for a few minutes. He was observed standing with his back bent over to cut a hole in plastic container of engine oil with a Stanley knife, and standing up and leaning over the engine bay to empty the oil into the car. He was observed bending, squatting, kneeling and moving unencumbered.
147Mr McKenzie put to the plaintiff that he had told Dr Slesenger on the same day the footage was taken, that he had ongoing pain in the lower back that was “severe” and “constant.”[117] Mr McKenzie suggested to the plaintiff that there was no sign in the surveillance footage of pain of the character that he had recounted to Dr Slesenger. The plaintiff said in response “so the pain that I have – the severe pain that I'm feeling right now, you don't feel that. If you record this, at the recording I am just sitting with standing. But you don't feel the pain that I'm going through right now.”[118]
[117] Exhibit D1, DCB 52.
[118] T 27, L 19-23.
148Mr McKenzie suggested to the plaintiff that in the video, there was no sign of pain in his right leg to which the plaintiff answered, “I previously did say that after the surgery the right leg pain is less than it used to be. It's just the lower back pain that's still there.”[119]
[119] T 27, L 25-28.
149Mr McKenzie suggested to the plaintiff that “when you'd seen Dr Slesenger earlier that day, you told him you that you had severe neck pain with restricted range of movements of the neck. There's no sign of that in the video.”[120] The plaintiff said, “so the main pain that I have with my back pain, I've never mentioned that my neck pain is a major problem for me or a major thing for me. It's my lower back mainly that's bothering me a lot.”[121]
[120] T 27, L 29-31.
[121] T 28, L 1-5.
150Mr McKenzie suggested to the plaintiff that the surveillance did not suggest right shoulder pain that extended to the right elbow and the plaintiff said, “so the shoulder pain's a constant pain that has always been there, but the major pain is lower back pain. That's what I've claimed for, I mean that's what I'm claiming for. It's my lower back mainly.”[122]
[122] T 28, L 9-13.
151Mr McKenzie questioned the plaintiff about his activities of daily living that he had reported to Dr Slesenger. The plaintiff said that he recalled telling Dr Slesenger that he spent most of his days indoors, watching TV, on the internet, or occasionally walking outside, but that he did not perform domestic duties.[123] Mr McKenzie suggested to the plaintiff that the video surveillance of him assisting his sons with maintenance on a car was contradictory to his account given to Dr Slesenger. This exchange followed:
I was trying to see and help them with the car because I was trying to distract myself, I was mainly – that's why I was going and coming to just distract myself with that. And you weren't just talking them through it, you were pouring the oil in yourself, pouring the blue liquid in yourself, you were doing those things yourself, weren't you, and they were watching you?---Yes, so after a very – after a while I try to just distract myself a little bit to just keep my mind a little bit busy and make my mind feel a little bit better about myself and the night after I was suffering a lot from the pain after doing all that so it was just the little things to keep myself happy that day but after that I was suffering a lot of pain.[124]
[123] T 28, L 14-22.
[124]T 28-29, L 24-10.
152Mr McKenzie suggested to the plaintiff that the surveillance depicted him bending and turning his neck and his back to an extent greater than he had demonstrated to Dr Slesenger that he was capable. The plaintiff said that he had not stayed that long with Dr Slesenger, and the examination conducted by Dr Slesenger was probably ten minutes in total.[125]
[125]T 29, L 1-8.
153Dr Slesenger reported that the plaintiff walked with a pronounced right-sided limp. Mr McKenzie suggested to the plaintiff that the surveillance depicted him walking in what appeared to be essentially a normal manner. The plaintiff said “I always walk the same. Prior to the operation, I was walking with a crutcher [sic] and after the operation I always been walking the same so I don't know.”[126]
[126] T 30, L 17-20.
154Mr McKenzie reminded the plaintiff that he agreed he told Dr Tan that activity like brushing his teeth, can trigger increased pain. Mr McKenzie suggested that the surveillance footage had captured the plaintiff engaged in activities more vigorous than brushing his teeth. The plaintiff said “right now at the moment that I am standing in front of you I am suffering from a lot of pain but not visual, you can't see my pain, it's not visual to you so when I brush my teeth the pain is triggered. It's a lot – anything that I do the pain is a constant pain, it's there but you can't see my pain.”[127]
[127] T 30, L 26-30.
155Mr McKenzie also put to the plaintiff that the video involved more than “cleaning his plate at the sink,” which the plaintiff also told Dr Tan caused his pain to worsen. The plaintiff said, “yes, so they all cause me pain, even at the video when I was doing something and then I was going inside taking a break, sitting down for two, three minutes and then coming back outside and at the video when you saw me going for a walk, that's because I was suffering in pain and I had to just go for a little walk and just constantly move and take breaks.”[128]
[128] T 31, L 5-12.
Surveillance 10 June 2023
156The second record of surveillance played by the defendant was taken on 10 June 2023. The footage commenced at 9:42 am at the front of the plaintiff’s house. The plaintiff drove a white Mercedes four wheel drive, which he said was mainly owned by his son, to a residence in Clyde North. At 10:12 am the plaintiff removed from the vehicle a cordless tree pruner machine that was attached to the end of a pole and entered the property. His evidence was that the property is owned by a Ms Shekofa Jafari. The plaintiff said that he is friends with Ms Jafari’s father who is an influential person in the community. At 10:12 am the footage depicted the plaintiff holding the pole attached to the tree pruner, and reaching up with it, in order to trim a bush overhead.
157Mr McKenzie asked the plaintiff whether Ms Jafari was a client of Chamani Cleaning and Maintenance a business registered by the plaintiff’s son Bazir. The plaintiff said “I wasn't there for business. I was just there because in front of her front yard there was a little bush and I thought just to be nice with her because I'm friends with her father, just to cut some of that bush and make it looking nice for her. That's it. Just out of being friendly and respect to the father.”[129]
[129] T 38-29, L 24-2.
158I asked the plaintiff if he had been asked by anyone to attend the premises and use the pruner to trim the bush, and he said that he was going to the property to visit Ms Jafari’s father, he saw the bush and thought that he would make it look nice for them.[130]
[130] T 39, L 3-9.
159The footage showed the plaintiff continuing to use the tree pruner to trim the tree. At 10:21 am a man was shown in the footage standing next to the plaintiff, whom the plaintiff identified as Ms Jafari’s father. The plaintiff said that he was trimming the tree, because his friend was “unwell also.”[131] I asked the plaintiff why he had taken and used such a big piece of equipment to trim the tree, and not smaller equipment like secateurs. The plaintiff said that he didn’t have any smaller equipment with him. That was not correct.
[131] T 40, L 11.
160The plaintiff agreed with Mr McKenzie that the footage at 10:27 am showed him lifting the tree pruner up into the air and away from the tree. The plaintiff said that he had done so “out of enjoyment.”[132]
[132] T 41, L 1.
161The footage showed another man in the front garden of the property pushing a wheel-barrow. The plaintiff agreed that at 10:38 am the footage identified him lifting some secateurs out of the wheel barrow.
162The plaintiff next proceeded to pull leaves off a plant and place them into a wheelie bin. Mr McKenzie suggested that the plaintiff was using “some force” both to pull the leaves off the plant and push them into the wheelie bin, and the plaintiff agreed.[133] The plaintiff was then captured leaning underneath the plant in a bent position to pull leaves off it, and then bending into the wheelie bin to push the leaves down. This proceeded from 10:39 am until 10:43 am, when the plaintiff dropped some leaves on the ground and bent down to pick them up.
[133] T 41, L 21-24.
163The footage showed the plaintiff at 10:44 am kneeling or squatting on the ground and pulling some weeds out of the ground, and then standing up and putting the weeds into the wheelie bin and doing the same again. This continued for a further five minutes of footage until 10:50 am.
164The plaintiff was then observed picking up the secateurs and using them to trim a bush near ground level.
165The plaintiff agreed with Mr McKenzie’s suggestion that the wheelie bin had become quite full of plant matter. The plaintiff bent over to pull leaves from plants and squatted down to pull weeds from the ground, and then place them in the bin multiple times. At 10:54 am the footage showed the plaintiff manoeuvring the wheelie bin, and then lifting his left leg up and putting his foot into the wheelie bin, and then climbing into the wheelie bin, such that he was standing in it. When asked by Mr McKenzie if he agreed that the footage showed him climbing into the wheelie bin, the plaintiff said “maybe.”[134]
[134] T 44, L 28.
166The footage next showed the plaintiff at 1:10 pm at the same property in Clyde North, using a high-pressure hose on the driveway, and then bending down and picking up a piece of timber as well as the hose, and carrying them up the driveway. The plaintiff agreed this is what is observed.
167Next at 4:00 pm, the footage depicted the plaintiff out the front of his house, having driven the Mercedes home from the property in Clyde North.
168The plaintiff said he was not asked by Chamani Cleaning and Maintenance to do work at the house. He said he had attended the house and trimmed the bushes, weeded the garden, and pressure hosed the driveway because he was friends with Mr Jafari who had newly moved into the house, and he was just trying to help.
169I asked the plaintiff if he had gone to the property because he felt that he was well enough to perform the various domestic tasks. His response was “no, I'm not well, I'm not feeling well, it was just because of our friendship…”[135]
[135] T 47, L 11-12.
Surveillance Taken 13 June 2023
170The third tranche of surveillance played by the defendant was taken on 13 June 2023. The footage captured the plaintiff leaving his home in his car at 10:02 am. The plaintiff agreed with Mr McKenzie’s suggestion that he then arrived at the Jafari property in Clyde North at 10:30 am, and had remained there until 2:36 pm, although his departure was not shown by the footage.
171The footage resumed with the plaintiff at the Jafari property from 2:36 pm.
(a) At 2:38 pm the plaintiff was seen walking from his car parked at the front of the property to get something and then to a gate at the side of the property and proceeding to do some work on the gate.
(b) From 2:52 pm to 3:32 pm the plaintiff was working on the gate at the side of the property, this included amongst other things, as described by Mr McKenzie, and with which the plaintiff agreed:
(i)squatting at the gate at the side of the property with a drill in his hand performing work;
(ii)bending over and reaching to the ground to pick something up;
(iii)bending down quickly;
(iv)walking with his back bent whilst looking for something on the ground;
(v)reaching up and working on the gate above shoulder height;
(vi)repeatedly standing up and squatting down;
(vii)bending down to the ground to put down and pick up a wrench off the ground;
(viii)squatting and tightening or drilling something on the ground;
(ix)bending down and picking up a saw off the ground, and then using the saw in his right hand on the top of the gate, above shoulder height;
(x)using a hammer on the top of the gate above shoulder height;
(xi)using the saw on the lower part of the gate whilst bent over;
(xii)crouching, standing up and moving, and then bending over repeatedly;
(xiii)using a drill to secure a board to the gate, and testing the gate; and
(xiv)bending over and picking things up off the ground whilst bent over, and standing up and working on the gate.
172The plaintiff sought to meet Mr McKenzie’s descriptions of the work he was performing on the Jafari’s gate. He said, “I was fixing the lock so I was fixing the lock on the gate, but because I'm very slow at working, otherwise it's two minutes work, so it took me so long to fix that lock.”[136]
[136] T 54, L 16-19.
173I asked the plaintiff it he believed that he was moving slowly in the footage, and he said, “so I don't know my movements, I don't know how fast and slow, I've always been the same, so prior to the surgery maybe I was different, but after the surgery I'm - my movements are always the same, has been.”[137]
[137] T 55, L 7-12.
174The footage showed the plaintiff at 3:32 pm walking to his car, picking up a drill, and returning to work at the gate. The plaintiff proceeded to:
(a) put the drill down on the ground and bend down to the ground to pick it up again;
220Mr McKenzie referred to a history provided by the plaintiff to Dr Tan that “any level of activity, even brushing his teeth, can trigger increased pain,”[180] a state of affairs that Mr McKenzie submitted was irreconcilable with the activities revealed in the surveillance footage.
[180]Exhibit P13, PCB 65.
221Mr McKenzie referred to the plaintiff’s evidence in cross-examination that he sees his GP once a month to “get a certificate” but that is at odds with his affidavit evidence that he sees his GP twice a month.[181] Similarly, Mr McKenzie submitted that the plaintiff’s affidavit evidence that he sees Dr Mehr once a month, as “he manages my medications,”[182] was incorrect based on the dates of the clinical records put to the plaintiff.
[181] T 87, L 16.
[182] Exhibit P1, PCB 55 [11].
222Mr McKenzie submitted that authorities such as Haden Engineering Pty Ltd v McKinnon,[183] in relation to pain and suffering consequences, are predicated upon an assessment of a plaintiff’s credibility. Mr McKenzie argued the credibility of the plaintiff was fundamental, and if I had reservations about it, but more relevantly, was satisfied that it had been undermined in material respects, then assessing his consequences as satisfying the requisite threshold for the grant of a certificate would be problematic.
[183] (2010) 31 VR 1.
223Mr McKenzie observed that the plaintiff’s treating GP Dr Khan, provided a “gloomy assessment,”[184] of the plaintiff’s low back, neck and right shoulder as at 30 August 2023.[185] Dr Rowe noted various restrictions to which the plaintiff was subject, and the plaintiff said that “they had not got any better.”[186]
[184] T 112, L 12.
[185] See Exhibit P5, PCB 109.
[186] T 18, L 26-28.
224Mr McKenzie submitted that despite the right shoulder and the neck injury not being pursued as part of the serious injury application, the plaintiff continued to complain of them but these restrictions to the right shoulder, and the neck, had not in any event, been borne out by the extensive surveillance.
Plaintiff Submissions
Credibility – the Surveillance
225Ms Pilipasidis submitted that the plaintiff is an uneducated and unsophisticated man who lacks English. Ms Pilipasidis also intimated that the existence of cultural issues could have influenced and impacted the plaintiff’s in Court presentation.
226Ms Pilipasidis noted that the plaintiff had been required to give evidence over the course of two days, and she submitted, he had done his best to provide honest answers to the Court. Ms Pilipasidis pointed out that the plaintiff had made concessions in his evidence, even prior to being presented with the extent of the surveillance. Ms Pilipasidis submitted that I should prefer that on occasions when the plaintiff did not appear to understand questions, it was not prevarication on his part, but instead, emblematic of his lack of education and sophistication.
227Ms Pilipasidis agreed that the surveillance was an important consideration in the overall determination of the application, but she sought to counter its probative worth, by depicting it as but a snapshot, taken at particular times of the plaintiff’s appearance, whereas the plaintiff’s presentation to his medical treaters and to medico legal practitioners had been consistent.
228Ms Pilipasidis noted that no doctor had suggested that the plaintiff was feigning his presentation. Dr Tan said “I did not observe anything obvious to indicate that he was feigning illness. However, I strongly suspect that cultural and social factors are leading to some magnification of his symptoms.”[187]
[187] Exhibit P13, PCB 70 [13].
229Ms Pilipasidis urged me to find that the plaintiff’s explanation for the inconsistencies in his affidavits was possibly attributable to his lack of sophistication, and because he believed that he was required to give evidence about the consequences of all of his conditions from their onset, as opposed to their status at time of the swearing of the same.
230With regard to the surveillance, Ms Pilipasidis pointed out that 95.25 hours of surveillance had been obtained by the defendant over a period of 16 days. However, only three hours and 24 minutes of surveillance over a 6 day period was played in Court. Ms Pilipasidis’ submission, at least inferred, that I might assume that the surveillance that had not been shown to the Court was not damaging of the plaintiff.
231Ms Pilipasidis further submitted that the surveillance footage had been in the defendant’s solicitors possession respectively on 27 June 2023 and 29 August 2023, with this amount of time allowing sufficient time for the defendant to have provided it to Dr Slesenger or Dr Tan, to view and to comment on, but it had not adopted that course.
Clinical Findings
232Ms Pilipasidis urged me to place greater reliance on what she submitted were the objective findings of the doctors who had examined the plaintiff and who had provided their clinical assessments as opposed to surveillance. In this regard, Ms Pilipasidis submitted that:
(a) Dr Akil reported “reduced sensation in the right L5 dermatome compared to the left.”[188]
(b) Dr Rowe recorded "impaired sensation about the lateral toes of the right foot, consistent with an L5 nerve root irritation.”[189]
(c) Dr Tan noted "both ankle jerks were depressed."[190]
[188]Exhibit P9, PCB 152.
[189]Exhibit P10, PCB 174.
[190]Exhibit P13, PCB 67.
233Ms Pilipasidis observed that Dr Akil and Dr Tan are neurosurgeons who had observed ongoing nerve disturbances affecting the plaintiff’s leg that were allied to the spine and the low back injury, and she submitted that it could not be said that there had been a complete resolution of the plaintiff’s symptoms following the surgery.
234Ms Pilipasidis relied on the plaintiff’s account of continuing pain of varying degree affecting his back and that had been a presentation reported by him from the outset and following surgery, and that the plaintiff had reported to Dr Akil that post-surgery, although his leg pain had resolved, his back pain was ongoing.
Seriousness
235Ms Pilipasidis relied on the plaintiff’s continuing need for medication,[191] although she accepted that there has been a reduction in the strength of prescribed medicines since the commencement of 2023.[192] Ms Pilipasidis submitted that the plaintiff had been up front with doctors that the surgery had alleviated some of his leg pain, although he had an ongoing need for medication.
[191] T 121, L 19.
[192] T 122, L 4 -10.
236Ms Pilipasidis submitted that the plaintiff’s experience of pain, and how it affects him on a daily basis, is an important consideration in the assessment of the claim for a Serious Injury Certificate for pain and suffering. Ms Pilipasidis suggested that the plaintiff had learned to live with a level of pain, and had an “underlying degree of pain that was not the same all the time.”[193] Ms Pilipasidis argued that the surveillance only depicted the plaintiff having better days when he was able to undertake the activities observed. Ms Pilipasidis referred to the plaintiff’s evidence that:
after a while I try to just distract myself a little bit to just keep my mind a little bit busy and make my mind feel a little bit better about myself and the night after I was suffering a lot from the pain after doing all that so it was just the little things to keep myself happy that day but after that I was suffering a lot of pain.[194]
[193]T 123, L 5-6.
[194]T 29, L 3-9.
237Ms Pilipasidis addressed the plaintiff’s sleep disturbance. The plaintiff’s evidence was “I have pain, I take my medication. Sometimes I sleep, rest, sometimes not, depends on that.”[195] The plaintiff said that he has back pain and it affects his sleep.[196] Ms Pilipasidis emphasised that it was the plaintiff’s pain levels that are affecting his sleep, and not a psychological condition as was suggested on behalf of the defendant.
[195]T 82, L 12 – 13.
[196]T 83, L 2-4.
238Ms Pilipasidis submitted a significant consideration in the application was the plaintiff’s inability to return to pre-injury employment and the ongoing restrictions imposed by his back injury to work. Ms Pilipasidis observed that the plaintiff had relied upon his physicality to obtain an income. Ms Pilipasidis referred to Dr Slesenger who in considering the job of a packer when the issue of suitable employment was a live issue noted a need for restrictions in employment. Ms Pilipasidis accepted that although the surveillance suggested that the plaintiff possessed a capacity for light work, the loss of his capacity to engage in heavy manual work, was a serious consequence, in light of the plaintiff’s work history.
239Ms Pilipasidis noted the medical consensus was that the plaintiff required ongoing treatment. She argued that it was significant that the plaintiff would likely have to live with his injury, and to continue taking medication to manage his pain, for the foreseeable future. Ms Pilipasidis also referred to the prospect of deterioration of the plaintiff’s condition and that Dr Mehr found that there was “a risk of recurrence of the disc protrusion” such that a further fusion or minimally invasive procedure may be required and, as well, had suggested that the plaintiff was at risk of accelerated degenerative changes.[197] Ms Pilipasidis pointed to this risk as a serious consequence, particularly for a man of 59 years of age.
[197]Exhibit P4, PCB 98.
240Ms Pilipasidis submitted that the plaintiff was not observed in the surveillance lifting anything “overly heavy.”[198] Moreover, Ms Pilipasidis made note of the obvious fact, that it cannot be known how the plaintiff presented after the activities he was observed undertaking in the footage but that his evidence had been that he was in pain the night of 10 June 2023 following his attendance at Ms Jaffari’s home.
[198] T 132, L 7.
241As to inconsistencies in the plaintiff’s second affidavit, and his recanting of certain of the contents of the same during cross examination, Ms Pilipasidis again submitted that it could be explicable as a symptom of “cultural issues,” unsophistication on the part of the plaintiff, and his reliance on others to prepare documents that were interpreted for him.[199]
[199] T 144, L 15-21.
Defendant’s Reply
242Mr McKenzie submitted that surveillance although central to the defendant’s case, was corroborated by the plaintiff’s “retraction of various matters in his affidavit material.”[200]
[200]T 147, L 21-23.
243Mr McKenzie stressed that the defendant’s submission in relation to the plaintiff’s credit was that he had been untruthful. He had not deposed that he experienced good and bad days, but instead his evidence had been that his constant state was one of high-level pain.
244Mr McKenzie emphasised that the plaintiff had at the outset of cross-examination adopted as true the various accounts he had provided to various doctors and that had been specifically put to him.
245Mr McKenzie urged me to find that the inconsistencies in the affidavit evidence were not attributable to a misapprehension on the part of the plaintiff, nor incompetence or a lack of felicity on the part of the various interpreters, or in some way, culturally explicable. Mr McKenzie submitted that the reliance on the plaintiff’s inability to play volleyball was a “telling example” of untruthfulness as it was proved to be the case that it had not been a loss due to injury.[201]
[201]T 149, L 13.
246Mr McKenzie referred to an absence of corroborating evidence either from the plaintiff’s wife, his sons, or from Mr Jafari.
247Mr McKenzie submitted that the prospect that the plaintiff might require further surgery was speculative on the part of Dr Mehr and no post-surgery MRI had been performed.
Analysis and Findings
248I make the following findings.
249The plaintiff suffered injury during the course of his employment and in particular as a result of an incident on 15 May 2017. The injury is best described as one to the lumbar spine, affecting the function of the low back and that resulted in L4-5 discogenic pain and disc prolapse with compression of the right L5 nerve roots, resulting in radiculopathy.
250Causation is not an issue.
251I am satisfied that there is a very substantial difference in the plaintiff’s poor presentation and functioning after his injury, but before the right L4-5 microdiscectomy surgery[202] that was performed by Dr Akil on 5 March 2022. I accept that there is no medical reporting that the plaintiff’s back pain was improved by the surgery, and indeed, the plaintiff denies improvement. However, the plaintiff’s account to doctors and in affidavit evidence, and its reliability, is central to the outcome of the application.
[202] A procedure to remove a bulging or damaged (herniated) disc in the lower spine.
252Although the plaintiff deposed to his wife assisting him with putting on his shoes and socks, and to undertaking most of the household chores, under cross-examination, he conceded that since his surgery, his wife no longer has to assist him to dress in that way.[203] Moreover, although the plaintiff deposed that his wife performs most of the domestic tasks, he did not depose that before the accident he had performed any household duties, or the extent of the same, putting aside his gardening.
[203] T 80, L 1-15.
253The plaintiff’s reliance on the loss of the capacity to maintain his garden and the loss of the amenity of the same is questionable. Given what I observed of the plaintiff’s functional activity and dexterity, I have real doubts that he is restricted in the ability to tend to what he described as the small areas of garden at his home. If there are occasions when he cannot, then I am not satisfied that it is a recurring feature and that the capacity is lost to him, or that it can be attributed solely to his lumbar injury.
254The plaintiff said that because of the pain from his back, he lost the capacity to play volleyball. However, the plaintiff agreed with Mr McKenzie that he had not played volleyball since 2014.[204]
[204] T 83, L 28 – T 84, L 5.
255There is nothing of substance in the evidence that satisfied me that the plaintiff’s social interaction outside of his family relationship is much different from his description of it prior to the injury because of the current state of his back. I accept that the plaintiff said he had previously enjoyed camping, and that he has only been camping once since his injury, and he could not get into the water and he did not find the experience enjoyable.[205]
[205] T 84, L 29 – T 85, L 10.
256I have endeavoured to give meaning to the submission advanced by Ms Pilipasidis adverting to cultural differences as possibly explanatory of any misunderstandings by the plaintiff in his evidence, but it is a submission of uncertain application. For instance, the plaintiff gave his evidence via an interpreter. His affidavits were attested to after their contents had been interpreted for him. At the commencement of the hearing, and through the interpreter, he adopted the truth of their contents. The fact that the plaintiff said that he believed his evidence in his affidavit evidence was intended to encompass all the pain, restrictions and losses since the onset of his injury, as opposed to the circumstances he finds himself in since the surgery, and the subsequent improvement to the present time, is difficult to reconcile because of cultural issues. Dr Tan referred to a suspicion of possible exaggeration of symptoms due to cultural matters. Whether the plaintiff’s affidavit evidence was wrong, intentionally, or inadvertently, the point is that on the matters already mentioned, it is at the very least, unreliable. Cultural matters may possibly have some relevance to explain the plaintiff magnifying his symptoms by way of presentation, but that state of affairs cannot inform or define the extent of an organic injury.
257Much of the findings of pain and limitations referred to by Dr Akil, Dr Tan and Dr Rowe, referring to the plaintiff’s back, are dependent on the accuracy of the accounts given to them by the plaintiff. Although the radiology identified injury, as I have already stated, injury was not contested by the defendant, the issue is distilled to less what the injury is, as opposed to pain and suffering consequences that present because of it, as at the date of the hearing of the application, and likely into the future. The medical accounts that are sufficiently contemporaneous to the surveillance that was played in Court, suggests to me that doctors had not been provided with an accurate account by the plaintiff of his low back pain and restrictions. Dr Slesenger, in particular, falls into this category when the history and effects of injury that he obtained from the plaintiff, is compared with the footage of the plaintiff on the very day of his examination.
Surveillance Footage
258Despite the extent of the surveillance footage played in Court, fairness militates against the making of a comprehensive finding about all of the plaintiff’s claimed pain and suffering consequences of the accepted workplace injury, or indeed of his reliability or credibility, based on it alone. I have not considered the surveillance in isolation, but have had regard to the concessions obtained from the plaintiff by Mr McKenzie on cross-examination of the plaintiff by reference to medical reporting, the nature and usage of medications, and the extent of ongoing medical care and attention required by the plaintiff.
259I have considered the amount of footage the defendant obtained in comparison to the extent of it shown in Court. I have paid regard to the submission by Ms Pilipasidis that the surveillance was in the possession of the defendant's solicitors with the first tranche consisting of the May/June 2023 surveillance since 27 June 2023 and the second tranche of surveillance, being the 8 August surveillance, by 29 August 2023. I accept that the defendant had sufficient time to provide the surveillance to Dr Slesenger and Dr Tan to comment on, but that it did not. However, the absence of the opportunity for them to comment on the footage, and whether or not it affected their opinions, is a different consideration to whether the surveillance, if evaluated as a part of the whole of the evidence, may shed either a corroborative or contradictory light on a particular state of affairs as sworn to by the plaintiff. I am satisfied that it sheds a contradictory light. I observed a man who was repeatedly bending, getting up and down, and doing so quite swiftly and without any apparent limitation on the occasions depicted. I observed a man who presented functionally very differently from what was reported by him to those doctors who have in turn reported. I am satisfied that the plaintiff’s presentation on the surveillance is inconsistent with his clinical presentation to doctors. As a result, their accounts and opinions about the limitations and restrictions occasioned the plaintiff as a result of his back injury, are unhelpful.
260My concern about what the surveillance suggested when compared to the opinions, for example, of Dr Slesenger and Dr Tan, to which I was in particular directed by Ms Pilipasidis, led to the following exchange with counsel:
HIS HONOUR: But the point is that what has resolved is sufficiently resolved as to not constitute a serious imposition to this man's functioning. That's what the surveillance would suggest. The objective findings are one thing; the objective findings however are not coextensive with or commensurate necessarily, with a finding of seriousness. Because the functional display that I saw is utterly contradictory to a serious imposition on function and form. Is it not?
MS PILIPASIDIS: Your Honour, that is certainly open to Your Honour to find.[206]
[206]T 121, L 5-15.
261As to the amount of footage not shown, I do not regard this as an example in which I should infer that the footage not played may be because it would not have further assisted the defendant. Given the extent of footage that was shown, I would be reluctant to regard the defendant’s decision to play no more of it, as more likely because it would have been unhelpful to it, as opposed to the further Court time that would have been occupied in order to play it.
262I have also considered the plaintiff’s evidence and the submissions made by Ms Pilipasidis that went to two closely related matters. First, the plaintiff’s evidence that over the course of his long journey of injuries he has come to a certain resignation about his pain and, as it might be said, learned to live with it. The second matter concerns the plaintiff’s evidence that despite conceding that the activities depicted gave no suggestion of restriction, or pain commensurate with the accounts in the medico legal reporting to which I have referred, obviously there is no footage of the plaintiff inside his home in the hours and over the course of the night that followed his exertions and the extent of any suffering. Adopting these observations, requires me to place reliability on the plaintiff’s account, and I am unwilling to do so.
263It is unnecessary for me to find that the plaintiff was untruthful in the sense that those parts of his evidence to which the defendant’s submissions were directed, and my findings have been made, was deliberately untrue. It is enough to say that they were in a number of material respects wrong and, for whatever reason, unreliable. I am satisfied that the plaintiff’s accounts of pain and restrictions as an ongoing consequence of the back injury, to which he deposed and has related to those doctors that I have identified, was exaggerated.
264I accept that the plaintiff has lost the capacity to engage in the type of heavy and strenuous physical work in which he was engaged before his injury, and that he is likely to be confined to light work into the future. The plaintiff’s frustration at not being able to provide for his family as he once did, is a consideration I have taken into account in my overall assessment of seriousness.
265I have also taken into consideration that in Haden Engineering Pty Ltd v McKinnon,[207] Maxwell P set out various principles to which recourse is invariably had in serious injury applications in an effort to assist in evaluating the “pain and suffering consequences” in a given set of circumstances and these may include:
· disturbed or interrupted sleep;
· mobility;
· cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
· capacity for self-care and self-management;
· performance of household and family duties;
· recreational activities;
· social activities;
· sexual life; and
· enjoyment of life.[208]
[207](2010) 21 VR 1.
[208]Ibid [16].
266Under the heading “The disabling effect of pain”, the learned President said:
As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this court (per Ashley JA) said in Dwyer (No 2): ‘… [I]mpairment is concerned with what has been lost. But the significance of what has been lost… may be informed, to an extent, by what is retained.’[209]
[209]Dwyer (No 2) [2008] VSCA 260, [27]; see also Stijepic [2009] VSCA 181, [44].
267Adopting the reasoning expressed in the passages cited from Haden, and taking account of the non-exhaustive indicia set out in it, I am not persuaded that the extent to which back pain limits the plaintiff’s functioning, and interferes with his enjoyment of everyday life, is serious. When due consideration is afforded by me to what has been lost with what has been retained because of the back injury alone, I am not satisfied that the injury is a serious injury.
268I have taken into account that the plaintiff was seen able to assist his son when working on cars and that he proved capable of undertaking strenuous voluntary physical work, such as was observed when performing activities for the assistance of Mr Jaffari. I am not persuaded that these are outlier examples of his capacity and function.
269Although the plaintiff was quizzed whether the work he did had some commercial connection to Chamani Cleaning and Maintenance, he denied it, and the defendant did not in final address submit that he did. I have drawn nothing adverse to the plaintiff on that basis.
270I am satisfied that the plaintiff is largely self-sufficient in terms of his personal care. He agreed that he has experienced improvement on that score.
271The plaintiff can drive. The reliability of the extent of his capacity to do so on a daily, or on an as needs basis and the duration of the same is debateable. I accept the plaintiff’s evidence that he was a passenger when his family and friends drove to Brisbane at Christmas 2022. However, there is no reason to think that the need to stop for breaks in order for him to stretch his back and that he described, is very much out of the ordinary scheme of things for a drive of such length, for a person without the plaintiff’s low back impairment. Although the condition of the plaintiff’s back no doubt benefited from that means of travel and by allowing the taking of breaks along the way, I do not assess that need to do so, when considered with the other matters I have found exist, elevates the injury to a serious injury.
272Although the plaintiff testified that he has disturbed sleep due to pain, what he is prescribed for sleep is unclear. In final address, Ms Pilipasidis said that “the Norflex, as I understand, was for sleep.”[210] Ms Pilipasidis also noted that the plaintiff had said he takes “Norflex for sleeping at night time.”[211] Dr Akil, however, reported that the plaintiff takes “Panadol and Norflex primarily for his pain relief.”[212] Dr Mehr reported that “Norflex was not helpful for his right brachialgia. Also, it caused some headache and insomnia. Therefore, I started him on Endep 10 mg nocte.”[213] However, the plaintiff is not now prescribed Endep.
[210] T 121, L 21-22
[211] T 89, L 16.
[212] Exhibit P9, PCB 156.
[213] Exhibit P4, PCB 86.
273Mr McKenzie contended that the evidence on the point was of uncertain character, and it remained opaque as to which impairment is adversely impacting the plaintiff’s sleep. It is trite to note that accrss the landscape of legal principle that informs the seriousness of injury, the loss of previously restful and recuperative benefits of undisturbed sleep, is a matter of importance in an overall assessment of seriousness. What I understand Mr McKenzie’s submission to be in part directed to, however, is that although the plaintiff jettisoned reliance on the other injuries along with his claim under paragraph (c) of the definition of serious injury, nonetheless, the plaintiff continued to point to associated pain and anxiety associated with them.
274Ms Pilipasidis stressed the interference with sleep as an important indicia of the consequences to the plaintiff of the back injury, and the plaintiff’s evidence when cross-examined had been, “[b]ut at night time I'm actually suffering from the pain, I'm not able to sleep properly.”[214]
[214] T 81, L 19-24.
275In the course of the defendant’s final address, I referred Mr McKenzie to the plaintiff’s evidence of the numerous medications he takes, some but not all of which, are prescribed. The need to take medicines to manage or to alleviate pain and thereby better enable functional activity, is a relevant fact in the overall assessment of the application. However, the plaintiff did not identify for which injury or which ongoing condition and their effects on him, that his medications are taken. Certainly gabapentin was previously prescribed by Dr Mehr, but not currently.
276Obviously a defendant can only be held responsible for the consequences of an injury it caused, but a particular medication may have pharmacological benefits for pain that a plaintiff suffers for one or more areas of the body, despite being prescribed or taken for a pain associated with an injury to another and separate body function. A serious injury application is sometimes referred to as a gateway application, and although that description is not a license for a lesser standard of proof, it does recognise that in such cases where matters of medicine and of pharmacological efficacy can be in issue, there is a limitation to what can be explored in the course of and due to the nature of such an application. Accordingly, on balance, I accept that the plaintiff’s sleep is sometimes disturbed by the pain suffered in his lower back but the extent or frequency of the same because of the back injury, as opposed to other problems the plaintiff continued to refer to in his evidence, including his emotional state, is debateable.
277Even though I accept the plaintiff continues to suffer some impairment and some pain consequences from his back, even if they could be described as marked or significant, I am not satisfied they are serious. I am not satisfied that there is a sound medical basis to take a likely risk of deterioration into account as Ms Pilipasidis urged and based on the comments made by Dr Mehr.
278For the reasons I have expressed, I am not satisfied that when judged according to the range of possible impairments, they can be fairly described as very considerable. The plaintiff’s application is refused. I will hear the parties on costs.
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