Chapple v TAC
[2011] VCC 1418
•15 November 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-05556
| PAUL CHAPPLE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HIS HONOUR JUDGE PARRISH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11, 12, 15, 16 and 17 November 2010 |
| DATE OF JUDGMENT: | 15 November 2011 |
| CASE MAY BE CITED AS: | Chapple v TAC |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1418 |
REASONS FOR JUDGMENT
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Catchwords: TRANSPORT ACCIDENT – Transport Accident Act 1986 – s.93 – serious injury – paragraphs (a) and (c) of the definition of “serious injury” – issues of credit – application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie SC with | Robinson Gill |
| Mr A S Pillay | ||
| For the Defendant | Mr D R Myers | Solicitor for the Transport Accident Commission |
| HIS HONOUR: |
Introduction
1 By way of Originating Motion dated 23 November 2009, Paul Chapple (“the plaintiff”), seeks leave pursuant to s.93(4)(d) of the Transport Accident Act 1986, as amended (“the Act”), to bring common law proceedings to recover damages for injury (“the injury”) suffered by him arising out of a transport accident which occurred on 20 October 2005 (“the transport accident”).
2 The plaintiff and Dr S P de Graaff gave evidence and were cross-examined. Both parties tendered various documents.[1]
[1] Annexure A
Relevant Legal Principles
3 The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.93(17) of the Act.[2]
[2] S.93(6) of the Act
4 The plaintiff relies on paragraphs (a) and (c) of the definition of “serious injury” contained in s.93(17) of the Act, which reads:
“In this section –
serious injury means –
(a) serious long-term impairment or loss of a body function; or (b) … (c) severe long-term mental or severe long-term behavioural disturbance or disorder; or (d) …”
5 The parts of the body said to be impaired for the purposes of paragraph (a) are the left shoulder and/or the low-back. The mental or behavioural disturbance or disorder is said to be “an Adjustment Disorder not otherwise specified manifested as a traffic phobia and elements of Post-Traumatic Stress Disorder, and Chronic Adjustment Disorder with Depressed Mood”.[3]
[3] T 10, L11 – T 11, L5
6 In order to succeed, the plaintiff must prove on the balance of probabilities:
(a) that “the injury” suffered by him was a result of the transport accident; (b) the requirements of the test set out in the seminal decision of Humphries v Poljak,[4] wherein a majority of the then Full Court of Victoria stated: [4] [1992] 2 VR 129
“Sub-section (17) intends a division between injuries with physical consequences and those with mental consequences. The former fall under para (a) and the latter under para (c). It would be anomalous to regard the consequences of mental disturbance or disorder to fall under para (a) when the disturbance or disorder, itself fell to be judged by whether they satisfy the criteria of para (c). A ‘functional overlay’ will, we consider, rarely amount to a behavioural disturbance or disorder as that term is used in the legislation.
Now, in the light of the various matters to which we have referred in the foregoing propositions that we have stated or conclusions to which we have come, we think the task of a judge confronted with the requirement to determine an application made pursuant to sub-s.(4)(d) when reliance is placed upon sub-s.(17)(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long-term. We think ‘long-term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”[5]
[5] Humphries (op. cit.) at page 140. Also see Mobilio v Balliotis [1998] 3 VR 833
(c)
“serious injury” as defined in sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment – however, the mental disorder cannot itself constitute or be the producer of the impairment of a body function;[6]
(d)
“serious injury’ as defined in sub-paragraph (c) requires the mental or behavioural disturbance or disorder to be “severe” rather than “serious”. In Mobilio,[7] the Full Court found the word “severe” to be a higher standard to reach than “serious”. Brooking JA stated:
[6] Richards v Wylie [2000] 1 VR 79
[7] Mobilio (op. cit.)
“Without suggesting the use of any particular adjective to mark the distinction, I would say that ‘severe’ is used in the definition as a stronger word than ‘serious’.”[8]
[8] Mobilio (op. cit.) at page 846
7 Senior Counsel for the plaintiff advised the Court that the application was “primarily” brought under paragraph (a) and, in particular, in relation to the left shoulder.[9] Furthermore, I was advised by Senior Counsel for the plaintiff that the basis of the claim under sub-paragraph (a) was that the plaintiff was suffering “pain and suffering” consequences both in respect to the left shoulder and/or the back, which satisfied the test as set out in Humphries v Poljak.
[9] T 10, L11-23
The Background of the Plaintiff, his Injury and Medical Treatment
8 The plaintiff gave evidence that his affidavits sworn on 10 March 2009 (“the first affidavit”)[10] and on 23 September 2010 (“the second affidavit”)[11] were “true and correct”[12] save for one particular.
[10] Exhibit 1 at page 1 PCB
[11] Exhibit 1 at page 34 PCB
[12] T 66, L19-21
9 The plaintiff referred to paragraph 6 of his second affidavit which states, in part:
“As a result of my injuries and not being able to work on the shark fishing boat I really started to suffer financially. I was granted a disability support pension and continue to be on that disability support pension today … .”
10 The plaintiff gave evidence that he wished to change such particular and stated:
“I have informed Centrelink that I have been doing some – a little bit of cash in hand work and they suspended my disability pension and now I am not receiving it any more.”[13]
[13] T 66, L13-16
11 By way of his first affidavit, the plaintiff gave the following pertinent evidence:
• He is a thirty-nine year old (born 14 January 1972) whose mother and father separated early in his life, causing him to move about with his mother through country Victoria, where she sought various employments. • He attended Yarram High School but left in 1987 after completing Year 8. • On leaving school, he worked in the “rag trade”, initially as a screen printer for a couple of years and also worked as a garment cutter in several Melbourne factories. • He met his former partner, Selina, when he was about fifteen and from that relationship had three children – Shannon (born in 1988), Paul (born in 1990) and Jonathan (born in 1992). • When he met Selina he was using marijuana and both he and Selina began to use heroin and became addicted to such drug. As a result of his drug use, he spent periods of time in youth training facilities and also adult gaol, and he estimates that between 1991 and 2002, he had ten to twelve stints in prison for drug-related activities. • On 30 June 2001, Selina died of a drug overdose, after which he “really lost it”. In particular, he states: “… We had been together for such a long time that I really felt alone and depressed. I tried to commit suicide and spent some time in ICU. As a result of what I did in reaction to Selina’s death I went to jail and spent seven months. It was the longest, loneliest stretch that I had ever done. I have not been back in jail since.”[14]
[14] See Exhibit 1 at page 2 PCB
•
Being released from gaol, he spent about two years in Adelaide, after which he returned to Victoria in or about May 2004 and, in particular, moved to Lakes Entrance where his mother was situated with her new partner.
•
His mother had been receiving treatment for cancer (which information she had kept from him) and he realised he had to “straighten myself out for the sake of my mother and also to try to avoid what had happened to Selina”.[15]
•
He sought fishing work, and in about June 2004, commenced working with AB Fishing. He describes his activities as a fisherman in the following terms:
[15] See Exhibit 1 at page 3 PCB
“… They … [AB Fishing] … did scalloping and squiding (sic). This was pretty variable work as it all depended on the weather. I could be at sea for days at a time. Once we even went down to Tasmania and spent about six weeks there. After about six months I got another, better paying, job with Guillot Fishing Enterprises. They did board trawling work. This is very intensive work because the boat is operating 24 hours a day 7 days a week. There is normally a skipper, an engineer and three deck hands. The normal rotation was to work 21 days on and then have 14 days off. During this time you might come into harbour but it was really only to unload the fish, restock and go straight back out again. When we were out at sea the boat would be letting out the nets and pulling them up continuously over a 24 hour period. This of course depended upon the weather conditions. While I was working for Guillot Fishing I had a call from a friend who worked for Ben Boyd Fishing, on one of the shark fishing boats. He wanted me to come over and work for them.”[16]
[16] See Exhibit 1 at paragraph 10 page 3 PCB
•
He commenced shark fishing with Ben Boyd Fishing which evidently involved performing two ten-day back to back runs out at sea before having ten days off. When you performed shark fishing you could put the lines overboard and let them soak for five or six hours and have time to rest and eat before collecting the nets.
•
His particular job on the shark boat was to clean and cut the caught fish, which he describes as “very physical work” and was “often dangerous and hard because of the weather conditions”.
•
He describes loving the job, enjoying the peace and quiet of the sea. In particular, physically he could cope with the job and had no problem working hard.
•
On 20 October 2005, he was a backseat passenger in a motor vehicle with other fishermen when the car ran off the road and slammed into a tree.
•
He remembers waking up in The Alfred Hospital with various tubes and leads attached to him and being informed that he had suffered a broken jaw in two places, broken teeth, an injury to his left shoulder, three broken ribs, a punctured lung and fractures to three vertebrae.
•
He was informed that he fell onto his left shoulder, and as at the time of his first affidavit, such shoulder was painful, and clicked when it was moved, and he did not have a full range of pain-free movement.
•
After being discharged from hospital, he had some physiotherapy for six weeks with a Mr Geoff Delaney at the East Gippsland Physio Centre.
•
His then local general practitioner, Dr Filbeck from the Gippsland Community Health Centre, referred him to an orthopaedic surgeon, Mr Warwick Wright, in about June 2006.
•
Mr Wright arranged for the plaintiff to undergo an ultrasound of his left shoulder, after which the plaintiff was informed that there had been “some damage to the rotator cuff tendon”.
•
Mr Wright arranged for the plaintiff to have a cortisone injection into the left shoulder which gave some relief for a few weeks, after which the pain returned, causing him to have another two injections, the last being on 30 August 2007.
•
As at the date of the first affidavit, he complained of weakness in his left shoulder which prevented him lifting anything too heavy with his left hand and arm. He was able to mow lawns at his mother’s place but the mower was self-propelled.
•
He continues to suffer from low-back pain as a result of suffering fractures of three vertebrae in his low-back and, in particular, the back pain is worse when the weather is “cold”, and he has some difficulty bending over. In particular, he states:
“My lower back problems also stop me sitting or standing for any length of time. If I sit for an extended period my back begins to get very sore and I have to get up to move around otherwise the pain becomes too much to bear.”[17]
[17] See Exhibit 1, paragraph 22 at page 7 PCB
• At the time of the first affidavit, he was taking OxyContin, Maxalon and also Endep, a relaxant for his back problems, to try and help him cope with the pain. • After Dr Filbeck left the surgery, he was treated by a further general practitioner, Dr Joshi, who referred him to a rehabilitation specialist at the Epworth Hospital, Dr Stephen de Graaff. Apparently Dr de Graaff wanted to admit the plaintiff for a multidisciplinary pain management course but that had not been done yet. • As a result of the transport accident, he also describes himself as “psychologically injured”. In particular, he asserts: “… Travelling between Sale and Bairnsdale I have to go past the site of the accident all the time. Every time I look at the tree where the car crashed I am reminded of the accident and I feel terrible. I am also reminded of the fact that just as I was getting my life back into some sort of shape it was all taken away from me. I also feel terrible because I am letting my mother down. Now that she is very sick I want to be able to do as much for her as I can. Holding down a job and bringing in some money was a great source of comfort for her. It meant for once she didn’t have to worry about me and that I would be in a position to help her. I also want to be able to help her around her house just to do the things that would make her life easy. Now I struggle to do something as simple as putting the washing out because I can’t lift my left arm. I feel terrible about that and it’s just another way that I have let my mother down.”[18]
[18] See Exhibit 1 at paragraph 24, page 8 PCB
•
He considers that he is unable to go out fishing any more and that “shatters” him.
•
As a result of his “injuries”, his sleep pattern has been disrupted and he wakes up during the night and is only capable of four to six hours’ sleep overall.
•
As a result of the transport accident, he cannot provide things for his children.
12 By way of his second affidavit, the plaintiff gave the following pertinent evidence:
•
Since swearing his first affidavit, he has continued to be under the care of his treating general practitioner, Dr Joshi, and continues to consult Professor Stephen de Graaff at the Epworth Hospital.
• He continues on OxyContin, Maxalon and also Endep. •
Since his first affidavit, he has occasionally used heroin and he has tried to stop using it and has not used it for “the last few months”.
•
Since his first affidavit, he has returned to work as a fisherman but not as a shark fisherman, which was a “very hard job”.
•
As a result of his injury suffered in the transport accident and not being able to work on the shark fishing boat, he was granted a disability support pension and continues to be on that disability support pension as at the swearing of the second affidavit.[19]
•
After swearing his first affidavit, he received a telephone call offering him work on a squid and scallop boat operating out of Portland in Victoria. At that time, he was in Adelaide visiting his daughter and her young baby.
•
In about April 2009, he joined the boat, the Malis Star, which was fishing for squid. He was given control of the mechanical equipment which set the jigs in the water and lowered them in, whereas the other deckhand got the heavier work down in the cool room packing and stacking the boxes.
•
His duty was just to operate the machines which will send out the lines and jigs and then pull them back in. This was all done by a winch.
•
The “hardest thing” during squidding is getting up and down the stairs, moreso when there was a bit of a swell.
•
The plaintiff could manage the duties physically and found it nowhere near as hard as working on the board trawler cleaning and gutting fish.
•
He worked on the Malis Star on and off for about a month, after which there was a long break because there was no fish.
•
That boat was re-fitted as a scallop trawler and in about July 2009, he commenced scalloping, which he found not as hard as working on a board trawler. In particular, he describes his duties as a scalloper as follows:
[19] See paragraph 9 of these reasons where the plaintiff qualifies that evidence
“… All that would happen would be that a large steel cage would be dropped off the edge of the boat and it would be dragged along the ocean floor. It would be retrieved by a winch and the scallops would then be tipped out onto a conveyor on the back of the boat. That conveyor was about my waist height and my job was just to make sure that no rubbish went along the conveyor and that only scallops were taken along the conveyor down to the cool room. The job that I had to do was pretty light on board the boat and the main physical work was done in the cool room packing and stacking the boxes. I didn’t have to do this work because my boss knew about my injury and also because I was the more experienced deck hand.”[20]
[20] See Exhibit 1, paragraph 9 at page 36 PCB
•
He describes the scalloping work as “pretty patchy” and was working about three days per week up until December 2009 when again the gear was changed for squidding and the boat sailed for Hobart in early January 2010.
•
The squid fishing again was very poor and from about March 2010, the boat was in dock because there were no fish about.
• As a result of performing his work, the plaintiff comments: “… I have found that my mental state has improved. I don’t feel shut up and as down and depressed as I used to. I know that I want to work and I try to work as much a (sic) can. Sometimes when I am on the boat having to stand up on my feet for a little while I can feel my back begin to tense up and become more painful. At that time my boss lets me put the machines on hold and just go and lie down and stretch out my back. This really helps me. At other times I do try to move around the boat to stretch out my back to make sure that it doesn’t become too painful. I avoid doing any heavy work with my left arm or putting too much force through it. I have managed to restrict myself to working just those jobs and I can cope with that (sic) are lighter on the boat.[21]
(sic)
[21] See Exhibit 1, paragraph 11 at page 37 PCB
• Even though he can work on some fishing boats, he is restricted in the work he can do as a fisherman and would not be able to go onto a boat where he had to perform work as a board trawler.
13 The plaintiff relies on a report dated 25 September 2006 from Dr D MacDonald of The Alfred Hospital.[22] Dr MacDonald records that the plaintiff was admitted to The Alfred Hospital on 20 October 2005 with the following injuries sustained in a motor vehicle accident:
[22] See Exhibit 1 at page 45
(a) a closed head injury with the CT brain scan showing no abnormality; (b) a lacerated chin which was sutured; (c) a possible right pneumothorax; (d) fractures of the left side of the ribs 10-12; (e) a fracture of the left neck of the mandible.
There is no reference in such report to a left shoulder injury or low-back injury.
14 The plaintiff was admitted to the ICU and later transferred to the general ward and discharged on 24 October 2005. He was viewed at the Faciomaxillary Clinic on 28 October 2005 when he complained of pain when he was eating which appeared to come from his teeth. At that time, it was noted that he had extensive tooth decay and multiple missing teeth. He failed to keep a follow- up appointment on 25 November 2005.
15 The plaintiff was reviewed in the Neurosurgery Review Clinic on 8 November 2005 as there had been concern that the initial x-rays had demonstrated a possible fracture of the T6 vertebra. A subsequent CT scan showed that there were no fractures present.
16 The then treating general practitioner, Dr Ken Filbeck (situated at Gippsland Lakes Community Health), arranged for the plaintiff to undergo a plain x-ray of his left shoulder on 3 January 2006. The report of the radiologist, Dr Jeffrey D Brown states:
“Left Shoulder
There is minor sclerosis over the greater tuberosity of the humerus, but the left shoulder is otherwise normal.
Left Shoulder Ultrasound
The examination is normal. intact.”[23]
[23] See Exhibit 1 at page 43 PCB
17 Dr Filbeck referred the plaintiff to the orthopaedic surgeon, Mr W Wright, who initially consulted with the plaintiff on 15 June 2006. Dr Filbeck referred the plaintiff to Mr Wright because of ongoing symptoms in his left shoulder.
18 On examination, Mr Wright considered that there were features consistent with subacromial impingement syndrome and he ultimately advised the plaintiff to undergo a further ultrasound of the left shoulder which was performed on 16 October 2006. The conclusion of that ultrasound was that:
“Moderate supraspinatus tendinopathy. Evidence of disruption to the AC joint. Painful abduction, not associated with definite ultrasound signs of
impingement.”[24]
[24] See Exhibit 1 at page 47 PCB
19 Mr Wright considered that the plaintiff had suffered some damage to his left shoulder in the form of a disruption of the acromioclavicular joint and damage to the rotator cuff tendon, and treated him with an ultrasound-guided cortisone injection to the subacromial space.
20 The plaintiff was reviewed on 30 August 2007, at which time he informed Mr Wright that the injection had given him good relief of his symptoms for about eight to ten weeks, after which he had had two further injections.
21 Clinical examination at that time revealed similar findings to those previously noted and Mr Wright recommended that a further cortisone injection be undertaken.
22 Mr Wright considered that the left shoulder condition was most likely caused or aggravated by the transport accident and that symptoms may settle with conservative treatment, although there was a possibility that there would be ongoing symptoms in the future.[25]
[25] See Exhibit 1 at page 53 PCB
23 The plaintiff relies on medical reports from Dr Ken Filbeck dated 18 October 2006[26] and from Dr Andrew Peters dated 18 July 2007.[27] Both these doctors were situated at the Gippsland Lakes Community Health Centre. In addition to such reports, the subpoenaed notes of Dr Filbeck and Dr Peters, together with those of Dr Maged Masoud and Dr Tom Alwyn (all of whom are doctors at the Gippsland Lakes Community Health Centre) were tendered.[28]
[26] See Exhibit 1 at page 149 PCB
[27] See Exhibit 1 at page 147 PCB
[28] See Exhibit 1 at pages 135-142 PCB
24 The plaintiff initially consulted the clinic on 17 November 2005 when seen by Dr Masoud. At that time, Dr Masoud obtained a history that the plaintiff had suffered injury to his left shoulder and back as a result of the transport accident. On the next couple of occasions he also saw Dr Masoud, after which he saw a variety of doctors at the clinic, although mostly, Dr Filbeck.
25 In his report dated 18 October 2006, Dr Filbeck refers to the left rotator cuff as still quite “bothersome” to the plaintiff, with weakness and pain in the left shoulder, and the plaintiff is “still awaiting for corrective surgery of this condition”. He considered that the fractures in the lumbar spine have healed with only “minor and mild pain resulting”. At that stage, he considered that the plaintiff was unfit to go back to his pre-accident employment (fishing) mainly because of his left rotator cuff injury with the associated weakness and pain in the left upper extremity.
26 In his report dated 18 July 2007, Dr Peters notes that the plaintiff underwent a cortisone ultrasound-controlled injection on 28 December 2006, a Depo- Medrol and local anaesthetic injection to the left shoulder on 21 February 2007 and a cortisone injection to the left shoulder on 28 May 2007.
27 The notes from the Gippsland Lakes Community Health Centre would suggest that the plaintiff was treated at that clinic up until 28 May 2007. I note that the report from Dr Peters indicates that the plaintiff failed to attend a scheduled appointment on 22 June 2007.
28 During these consultations, there are references to pain in the left shoulder.
29 It is to be noted that the plaintiff sought OxyContin for “pain” on 3 February 2006. The notes would suggest that he was not using anything at that time and there was a suggestion that he try Nurofen and Panadeine Forte. Although not totally clear, it would appear that OxyContin was first prescribed on or about 11 January 2007 when he was complaining of a broken tooth which was now infected and was needing OxyContin, for the Endone “wears off too soon”. Furthermore, what seemingly is the last consultation with the clinic on 28 May 2007, he was told by Dr Tom Alwyn that he had to come off the OxyContin or see another doctor. It is to be noted that on that occasion, the plaintiff was complaining of shoulder pain.
30 The plaintiff also tendered the medical records of Dr Naveen Joshi, situated at the Macleod Street Medical Clinic in Bairnsdale[29] and also the medical records of Dr Michael Xu (at a different clinic).[30]
[29] See Exhibit 1 at pages 181-195 PCB
[30] See Exhibit 1 at pages 178-180 PCB
31 The notes of Dr Xu run from 4 July 2007 to 26 September 2007 and the medical records of Dr Joshi run from 27 September 2007, continuing effectively up to the date of hearing.
32 The notes of Dr Xu record that the plaintiff wished to see a psychologist for counselling regarding his ongoing “unhappiness” since the 2005 transport accident. Dr Xu prescribed OxyContin on 4 July 2007, 25 July 2007, 14 August 2007 and 29 August 2007. The notes record that on 5 September 2007, the clinic was contacted by a Dr Towle from Melbourne Medical Centre advising that the plaintiff had attended their clinic for OxyContin and was refused such medication, resulting in someone named “Darren” losing his temper and causing damage to property.
33 When initially seen by Dr Joshi on 27 September 2007, examination revealed limited abduction of the left shoulder, reduced lateral rotation of the neck and tenderness of the lower lumbar vertebrae. After checking with the local pharmacy, Dr Joshi prescribed OxyContin, “10mg 1 b.d.”.
34 On 7 October 2007, Dr Joshi notes that the “DPU rejected permit for OxyContin” without the plaintiff seeing a pain specialist, and recommended the use of Tramadol.
35 On 27 October 2007, Dr Joshi referred the plaintiff to the Epworth Pain Clinic under the care of Dr Stephen de Graaff. Dr de Graaff was supportive of the plaintiff being prescribed OxyContin and certificates were given to supply OxyContin. I note that on 24 December 2007, the plaintiff was using three OxyContin a day and he was advised not to use more than two a day.
36 Over various consultations, the plaintiff on occasion complained of low-back pain, neck pain, dental pain and left arm pain.
37 There are consultations with other doctors at the clinic of Dr Joshi (for example, Dr Chapman on 26 December 2008 and Dr Niemann on 22 January 2009) suggesting that the plaintiff was using sixty tablets of OxyContin every twenty-one days. Dr Joshi seemingly confronted the plaintiff on 27 March 2009 about the amount of OxyContin he was using, then only one week later, a Dr Smith, a general practitioner from Adelaide, rang after being requested by the plaintiff to supply OxyContin.
38 On 9 June 2009, the plaintiff consulted Dr Joshi complaining of a fracture of his left metatarsal bone as a result of jumping for a ball during a volleyball game and on 31 July 2009, he informed Dr Joshi that he was taking more OxyContin tablets for his broken foot.
39 Dr Joshi notes that in October 2009, the plaintiff had been involved with scallop dredging for about three days and that his back “really suffered from it”. On 8 December 2009, Dr Joshi obtained a history that the plaintiff had been involved in scallop fishing recently. On 29 January 2010, Dr Joshi obtained a history that the plaintiff had been squid fishing off Hobart.
40 The plaintiff relies on the reports of Dr Stephen de Graaff to Dr Joshi dated 30 November 2007;[31] 8 August 2008[32] and 26 March 2010.[33] Furthermore, the plaintiff also relies on the Epworth Hospital notes.[34]
[31] See Exhibit 1 at page 165 PCB
[32] See Exhibit 1 at page 168 PCB
[33] See Exhibit 1 at page 170 PCB
[34] See Exhibit 1 at page 172-177 PCB
41 Dr de Graaff initially saw the plaintiff on 30 November 2007 and refers to him as an “unfortunate thirty-five-year-old gentleman”. Dr de Graaff was of the opinion that the plaintiff had suffered a traumatic brain injury with post- traumatic amnesia of about twenty-four hours, fractured lumbar spine transverse processes on the left from L2-4, fractured left 10th to 12th ribs, fractured mandible and maxilla, disruption of the left acromioclavicular joint and associated supraspinatus tendinopathy, right pneumothorax and also dental fractures.
42 Dr de Graaff notes with surprise that the plaintiff was discharged home from The Alfred Hospital with no follow-up rehabilitation. Furthermore, he notes that it is “not surprising” that there is now an issue of chronic pain and that the “picture” is further compounded by the fact that the plaintiff has a past history of heroin addiction but has successfully undergone a Methadone program and has not used heroin for at least six years.
43 On examination, Dr de Graaff found “marked restriction” of range of movement in his lumbar spine and thoracic spine. There was tenderness noted over the ribs and lumbar regions and a decreased range of motion actively in the left shoulder.
44 Dr de Graaff thought the plaintiff had issues with a Chronic Pain Syndrome associated with multi trauma and that such pain was “chronic, severe, disabling pain” which had not responded to non-narcotic analgesia and it was appropriate for him to be treated with OxyContin. He noted at the first consultation that the plaintiff would “love to return to fishing” but has been unable.
45 When reporting on 8 August 2008, Dr de Graaff was of the opinion that there had been, all in all, “small gains in his overall functioning” but the plaintiff still remained “markedly disabled”.
46 When reporting on 26 March 2010 (following examination on the same day), Dr de Graaff obtained a history that the plaintiff’s neck and left shoulder can be problematic at times. In particular, the following history was obtained:
“At present he is not exercising as much as I would like. We have discussed previously about doing his pelvic floor exercises and abdominal core exercises, which he has tried but with respect to his walking, he is only walking about 200 metres at a time. He really needs to increase this and try to get up to around 30 minute walks at a time, three times per week, by the time of his review in late June.
It is also important that he tries to improve his sitting and standing tolerance.
His sleep can be problematic at times.
… .”[35][35] See Exhibit 1 at page 170-171 PCB
47 In particular, clinical examination on 26 March 2010 revealed a mild restriction of range of motion of the left shoulder and cervical spine with no neurological deficit. Dr de Graaff thought it was appropriate to continue the OxyContin because the plaintiff does have “some chronic severe disabling pain”.
48 In his viva voce evidence, Dr de Graaff described himself as the Medical Director of Pain Services at the Epworth Rehabilitation Centre in Richmond. He adopted the various reports to which I have referred. He gave evidence that since writing his reports, he has again reviewed the plaintiff on 25 June 2010 and 15 October 2010.
49 When seen on 25 June 2010, Dr de Graaff described the plaintiff as “struggling” during the winter months and that he was generally compliant with his OxyContin, 20 milligrams per day.
50 When reviewed on 15 October 2010, Dr de Graaff considered the plaintiff to have improved “significantly” with the pain control reasonable and the plaintiff able to walk regularly and greater distances.
51 I will return to the cross-examination of Dr de Graaff later in this judgment.
Medico-Legal Reports
52 The solicitors for the plaintiff arranged for the plaintiff to be medico-legally examined by the following doctors:
(a) the orthopaedic surgeon, Mr Garry Grossbard, on 22 July 2008;[36] (b) the psychiatrist, Associate Professor N Paoletti, on 8 October 2008[37] and on 14 September 2010;[38] (c) the orthopaedic surgeon, Mr Kevin King, who examined the plaintiff seemingly around September 2010;[39] (d) the occupational physician, Dr Amanda Sillcock, on 30 September 2010.[40] [36] See report dated 30 July 2008 in Exhibit 1 at page 58 PCB
[37] See report of the same date in Exhibit 1 at page 63 PCB
[38] See report dated 30 September 2010 in Exhibit 1 at page 90 PCB
[39] See report dated 21 September 2010 in Exhibit 1 at page 80 PCB
[40] See report dated 14 October 2010 in Exhibit 1 at page 999 PCB
53 When seen by Mr Grossbard on 22 July 2008, the plaintiff gave a history to him, in part, that he had been off work since the transport accident although, he had been offered a job on a fishing boat. Furthermore, he told Mr Grossbard that he was then taking 20 milligrams of OxyContin twice a day mainly for his “back pain”.
54 Mr Grossbard noted that the report from The Alfred Hospital[41] does not make any reference to any left shoulder injury or fractures of vertebrae in the lumbar spine.
[41] See paragraph 13
55 In relation to his left shoulder, Mr Grossbard was of the opinion that the plaintiff had an injury to the acromioclavicular joint and possibly to the rotator cuff. He noted that there was still some limitation of abduction of flexion but he had normal rotation which “would suggest there is no evidence of major persistence of capsulitis”.
56 Mr Grossbard noted that the back injury relates to ongoing pain which he considered to be “a little out of proportion to the level of the injury”, in that he requires longstanding and regular opiate treatment.
57 When initially seen by Associate Professor Paoletti on 8 October 2008, the plaintiff gave a history that, at that time, he “does not use drugs and does not drink”. He complained that his low-back is sore constantly but fluctuating in severity and that his left shoulder is very sore if he lifts it above his head.
58 Associate Professor Paoletti diagnosed an “Anxiety Disorder not otherwise specified, manifested as a traffic phobia and elements of Post-Traumatic Stress Disorder” and “Chronic Adjustment Disorder with Depressed Mood”, with the only cause of such conditions being the transport accident. Associate Professor Paoletti was of the opinion that at that time, the plaintiff had “no sustainable work capacity in an open job market” nor in the foreseeable future.
59 When seen nearly two years later on 14 September 2010, the plaintiff gave a history of having bad dreams every one to two weeks about the transport accident and was then living with his mother in Lakes Entrance. In particular, he keeps to himself and does not socialise as much.
60 Associate Professor Paoletti obtained a history that the plaintiff has “attempted to return to work” as a casual worker on a fishing boat and that he had worked once for a few days in August 2010 but had not been able to get any work for the previous six months.
61 Associate Professor Paoletti made the same diagnosis and he also commented that in relation to capacity for work, psychiatric factors militate against the plaintiff seeking work in an unrestricted manner on the open job market because:
(a) the ongoing severity of his symptoms does still affect his function; (b) the irritability may pose a problem if dealing with people in certain work settings; (c) the difficulty he now has with transport, highlighted by the relatively isolated situation in which he lives. 62 When seen by Mr King (presumably in or about September 2010), the plaintiff gave a history as returning to work as a deckhand on a fishing vessel “some months ago” but only lasted three short trips of a few days each as the physical effort involved “significantly aggravated his neck, back and left shoulder pain and he has not worked otherwise since the accident”.
63 Mr King found restriction of movement of the thoracolumbar spine and also a painful, stiff left shoulder with significant limitation of glenohumeral and combined movements which was consistent with a diagnosis of chronic rotator cuff injury of moderate severity.
64 Mr King was of the opinion that as a result of the transport accident, the plaintiff had suffered damage to the cervical discs and associated ligamentous structures and also damage to the thoracolumbar discs and associated ligamentous structures which would explain the persistence of chronic neck and low-back pain since the time of the accident. Furthermore, Mr King was of the opinion that the plaintiff had suffered a “significant injury” to the rotator cuff of tendons and ligaments surrounding the left shoulder and this chronic rotator cuff injury “combined with spinal pain” resulted in him probably being permanently incapacitated in terms of returning to heavy, unrestricted manual labour such as a professional fisherman. Mr King was of the opinion that the plaintiff may be able to manage suitable light unskilled work in the future if such work did not require him to bend or lift or use the left arm for vigorous lifting and pushing.
65 When seen by Dr Sillcock on 30 September 2010, the plaintiff gave a history that he had performed some squid fishing from April 2009 which involved “overnight trips” and that he had also been doing some casual scallop fishing “recently” but had only worked twice in the last eight months due to the weather and fishing conditions.
66 Dr Sillcock also obtained a history that the plaintiff had not used heroin since his partner had died ten years ago although he was drinking six to twelve stubbies of full-strength beer once or twice a week.
67 Dr Sillcock was of the opinion that the plaintiff had suffered a left rotator cuff lesion and the painful effects of spinal fractures in the low-back.
68 The plaintiff also relies on the following medical reports obtained by the defendant (or its agents):
(a)
a report from the neurologist, Professor Stephen Davis, dated 8 October 2007;[42]
(b)
the reports from the orthopaedic surgeon, Mr Peter J Gard, dated 6 March 2008, 1 May 2008 and 12 October 2009;[43]
(c) a report the rheumatologist, Dr Tony Kostos, dated 15 October 2010.[44] [42] See Exhibit 1 at pages 54-57 PCB
[43] See Exhibit 1 at pages 151-160 PCB
[44] See Exhibit 1 at pages 161-164 PCB
69 Professor Davis examined the plaintiff on 8 October 2007. Essentially, Professor Davis was investigating any neurological deficit but did note that the plaintiff seemingly had considerable pain in the left shoulder clavicle and left side of his neck, and also pain in the lumbar spine. Professor Davis did confirm that the plaintiff had fractures of the transverse processes in the lumbar spine at L2-L4 and noted the history of the plaintiff that he had not returned to fishing at that time chiefly because of pain in the left shoulder and pain in the low-back.
70 Mr Gard examined the plaintiff on 26 February 2008 in order to make an assessment of any permanent impairment. At the time of examination, the plaintiff was complaining of left shoulder pain, which was “fairly constant but worse with repetitive activity”. Furthermore, he found the left shoulder to be quite weak, preventing him from doing simple everyday things. The plaintiff also complained of a painful and stiff neck and painful low-back.
71 Examination of the lumbosacral spine involving “light touch” anywhere over the skin produced a vigorous reaction, and such light touch would cause extreme discomfort. Mr Gard noted that the type of touching was the equivalent of using a feather or similar. Examination of the left shoulder revealed that the acromioclavicular joint did not clinically appear subluxed or deformed and was not tender. There was some restriction of motion of the left shoulder.
72 Mr Gard was of the opinion that the plaintiff suffered from acromioclavicular joint dysfunction and supraspinatus tendonitis in the left shoulder, together with a painful neck and low-back as a result of the transport accident.
73 The plaintiff was re-examined by Mr Gard on 6 October 2009 and Mr Gard provided a report dated 12 October 2009. At that time, the plaintiff’s two major complaints were in the left shoulder and lumbar spine. In particular, he complained of being unable to lift the left arm comfortably above shoulder height and the shoulder frequently clicked and is associated with sharp stabs of pain. Below shoulder height, the arm is much more comfortable and he has a capacity to lift a variety of objects. The plaintiff informed Mr Gard that he is unable to sleep on his left-hand side and will occasionally wake with left shoulder discomfort.
74 The plaintiff complained that he has continuous low-back pain and occasionally has significant exacerbations that are related to certain postures or activities, such as bending, lifting or jarring, such as caused by riding in a bumpy motor vehicle.
75 The plaintiff informed Mr Gard that he feels inhibited with many activities – for example, although it has been recommended that he walk for forty minutes per day, he can only manage twenty to thirty minutes every second day or so; he did enjoy attending the gym and performing some exercises but because of his left shoulder he is unable to lift weights and has not attended this for some years; he used to enjoy swimming but is unable to perform this because of his left shoulder and has difficulty with day-to-day activities such as hanging out washing and using a lawn mower. He does do some fishing off a pier and very occasionally has a short ride on a dirt bike that he owns.
76 Examination of the left shoulder revealed some supraspinatus wasting and weakness with some limited restriction of movement. Examination of the lumbar spine did not reveal any significant tenderness as observed on the previous occasion.
77 Mr Gard expressed his opinion in the following way:
“Paul feels that these injuries prohibit him from returning to the workforce. I do not think it is likely that he will be able to return to his most recent job aboard a fishing boat, due to the heavy nature of the work. Given that I would not expect Paul’s symptoms to improve, I think it is unlikely that he would have the inclination to return to work. He may have the capacity for some work, in that he is able to sit up for 30 minutes and he does have full use of his right arm and hand. His complaints of back pain would probably exclude him from accepting a job involving lifting, pushing etc.
Paul feels that these injuries do significantly interfere with his leisure activities, as explained above. He is unable to fully enjoy dirt bike riding, swimming or gym work. He has little capacity in his eyes for performing domestic chores such as lawn mowing, washing clothes, cooking or heavy household activities.
The most recent job performed by Paul prior to this accident was on a fishing boat, and I believe this involved gathering fish from the deck, cleaning and gutting the fish, and stacking them. This did involve lifting up to thirty kilograms on the boat, and would regularly involve trips to sea for ten to twenty days at a time.
In summary, Paul did suffer orthopaedic injuries including injury to the shoulder resulting in tendonitis and AC-joint disruption, as well as some posterior element fractures. These have caused a surprising ongoing amount of disruption to Paul’s ability to regain access to his leisure and work activities. He does suffer from significant physical de-conditioning which may be hindering full recovery from his lumbar fractures. It seems unlikely that he is going to improve that aspect of his life.”[45]
[45] See Exhibit 1 at page 160 PCB
78 When examined by Dr Kostos on 11 October 2010, the plaintiff gave a history that he resumed work in late 2009 when he commenced scallop fishing, which continued until early 2010. He had been unable to work after that because of the lack of scallops to be harvested. The plaintiff made the point that the scallop fishing is generally mechanised and he does not have to do much in the way of lifting at all.
79 Dr Kostos comments that the left shoulder of the plaintiff is a “particular problem for him” as he has ongoing pain and restriction of movement. However, Dr Kostos noted that the signs on clinical examination were not entirely “clear-cut”. He did not believe that the fractures to the transverse processes were giving him overly much trouble (certainly not as much trouble as his neck pain).
80 Dr Kostos thought the plaintiff was clearly able to work but should not undertake any activities that require left arm reaching or elevation because of his shoulder problem. Dr Kostos also notes that the plaintiff may well have been commencing work the day after his examination.
81 It is also convenient to refer to the medico-legal reports relied on by the defendant, consisting of:
[46] See Exhibit B at page 3 DCB
[47] See Exhibit B at respectively pages 10 and 17 DCB
[48] See Exhibit B at pages 22-27
(a) report of the orthopaedic surgeon, Mr M J Dooley, dated 29 September 2010;[46] (b) the psychiatric reports of Dr Stephen Stern, dated 9 October 2007 and 6 October 2009;[47] (c) report from the clinical neuropsychologist, Dr Ian Stuart, dated 31 October 2007.[48] 82 When Mr Dooley examined the plaintiff on 30 August 2010, he obtained a history that the plaintiff had been a shark fisherman prior to the transport accident and was now living with his mother in Bruthen. Furthermore, although the plaintiff had received offers of returning to fishing work, he had not worked since the transport accident.
83 Examination of the lumbar spine revealed tenderness over the low lumbar region in the midline and with some restriction of movement involving pain. Examination of the left shoulder revealed no wasting around the shoulder girdle musculature but with some limitation of movement in the left shoulder.
84 Mr Dooley had available the CT scan of the abdomen which revealed the fractures of the left side transverse processes of the L2, L3 and L4 vertebrae. Mr Dooley diagnosed fractures of the left transverse processes of the L2, L3 and L4 and a probable soft-tissue injury to the left shoulder.
85 Mr Dooley comments that the fractures to the transverse processes would normally give some ongoing intermittent low-back pain. However, he did not expect this to be a long-term major condition and the reporting of symptoms was more “intense” and “constant” than he would have expected for such an injury sustained. Furthermore, Mr Dooley considered that the restriction of lumbar spinal motion was greater than he would expect for such an injury.
86 In relation to the left shoulder, Mr Dooley stated:
“… The mechanism of the motor vehicle accident would be consistent with him sustained (sic) a soft tissue bruising type injury to the shoulder. It is stated in the attached documentation that Mr Chapple was treated for tendinopathy around the shoulder following the accident. The possibility of an acromioclavicular joint subluxation was also mentioned. Current clinical examination does not reveal evidence of a subluxation of the acromioclavicular joint. Accepting that this injury may have occurred at the time and accepting a possible diagnosis of tendinopathy, one cannot explain ongoing pain five years after the accident and the marked restriction of shoulder motion on the basis of such an injury alone. I believe that it is reasonable to assume that if Mr Chapple’s treating doctors felt he had significant tendinopathy, impingement etc, then by now he would have been offered surgical intervention. The symptoms following a subluxation of an acromioclavicular joint would have settled within a few months after the episode. …
… In my view he is capable of carrying out a far greater range of activities than he currently does. From an orthopaedic viewpoint alone, he is capable of carrying out a range of at least light physical work and clerical duties. For his overall well being, it is important that he does return to appropriate work. … .”[49]
Later in his report, Mr Dooley states:
“From an orthopaedic viewpoint alone, I would expect Mr Chapple to note some intermittent low back pain. I would not expect this pain to be significant and I would not expect his condition to deteriorate in time. From an orthopaedic point of view, I would not expect Mr Chapple to be noting ongoing left shoulder girdle pain five years after the motor vehicle accident. … .”[50]
[49] See Exhibit B at pages 6-7 DCB
[50] See Exhibit B at page 7 DCB
87 Dr Stern initially examined the plaintiff on 9 October 2007 and made a diagnosis of a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood caused by the transport accident. Dr Stern was also of the opinion at that time that his psychiatric condition alone would not prevent him from performing work, including his pre-injury duties. When re-examined on 6 October 2009, he gave a history that he continued to live alone in a rented house in Swan Reach and that he spends his time mainly at home playing computer games and watching films. Furthermore, he gave a history that he has not driven since losing his licence in 2001, has few friends and is not interested in socialising. He was drinking four to six cans of vodka and lemon every few days and did not use drugs at that time. He had not returned to work as at the date of that examination.
88 Dr Stern was of the opinion that the plaintiff continued to have a Chronic Adjustment Disorder with Mixed Anxiety and Depression, and from a psychiatric aspect alone was fit for work, including his pre-injury duties. Dr Stern noted that he had no psychological or psychiatric treatment and is prescribed OxyContin and Endep (an anti-depressant) by his general practitioner.
89 Dr Stuart examined the plaintiff on 8 October 2007 and after testing was of the opinion that the plaintiff had made a good recovery from the accident from a neuropsychological point of view although, showing signs of an Attentional Disorder and a slowing in the speed of information processing. Dr Stuart considered such difficulties to be part of an Anxiety Disorder. At the time of examination, he was staying with his mother and living a “quiet social life”. At the time of examination, he was complaining of difficulties with his left shoulder, nightmares which caused him to wake at 3.00 or 4.00 am and then he is unable to get back to sleep.
90 The defendant also relies on an affidavit of one Shane Dugins, sworn on 27 October 2010.[51] That affidavit was subject to an application by those acting for the plaintiff that such affidavit should not be admitted as evidence largely on the basis that the maker of the affidavit did not have the requisite expertise to make certain opinions contained in the affidavit. Such application was subject to a ruling made by me.[52] Pursuant to that ruling, I struck out various paragraphs of the affidavit. The gist of the balance of the affidavit was that:
[51] See Exhibit E at pages 40-42 PCB
[52] See T 54-59
•
Shane Dugins, who resides in Lakes Entrance, had been a professional fisherman for approximately twenty-eight years and had held his skipper certificate for approximately twenty-four of those years.
•
He was a state representative of the Sustainable Shark Fishing Inc and had long experience and knowledge of the Victorian shark fishing industry.
•
He was an employee and director of Rosma Fishing Company and a skipper of a shark fishing boat.
•
Shark fishing was different to what is known as “board trawling” which is deep sea fishing for various fish species.
•
Work on board a board trawler is typically far more labour intensive than work on board a shark fishing vessel. Although board trawling vessels typically involve shorter periods at sea, the work is more continuous for the deckhands on the boats, whereas shark fishing, although involving extended periods at sea for up to ten days, is far less labour intensive.
91 The defendant also tendered extracts of the criminal convictions of the plaintiff[53] since the transport accident on 20 October 2005, and noted that the plaintiff has been convicted of the following offences:
[53] See Exhibit C at pages 81-255 DCB
(a)
At Bairnsdale on 11 July 2007, he was convicted of making a threat to kill (offence on 11 August 2006);
(b) Using a carriage service to menace (offence on 22 July 2006); (c) Criminal damage (offence 11 August 2006); and (d) Stalking another person (offence from 22 July 2006 to 16 August 2006). 92 The plaintiff was sentenced to a term of imprisonment which was wholly- suspended.
93 On 17 November 2008, at Sale Magistrates’ Court, the plaintiff was charged with the possession of cannabis and heroin (offence on 4 June 2008). He was released upon giving an undertaking commencing 17 November 2008 that he would seek and accept drug abuse treatment.
The Cross-Examination of the Plaintiff
94 Under cross-examination, the plaintiff gave the following pertinent evidence:
• The disability pension ceased on 3 November 2010; • He slipped back into using heroin in early 2010 because of “depression”; • He also used heroin in 2008; • He moved from Adelaide to Lakes Entrance in May 2004; •
He had only been shark fishing for a short time prior to the transport accident;
•
He agreed with the opinion of Mr Dugins that board trawling fishing is far more labour intensive than shark fishing but disagrees with Mr Dugins that board trawling fishing involves less time at sea. The plaintiff considered that shark fishing involves longer periods at sea;
•
He resumed employment in or about April 2009 when he was engaged in squid fishing over about twelve nights and then, from about 1 August 2009, he worked approximately three days a week until Christmas performing scallop fishing work;
•
In the period between January 2010 and November 2010, he performed squid fishing from January to March and a limited number of scallop fishing trips;
•
When it was put to him that he gave histories to Mr Gard on 6 October 2009, Mr Dooley, on 30 August 2010, and Dr Stern, on 6 October 2009, that he had not worked since the transport accident and that he was incapable of work, the plaintiff responded that he either did not remember stating that or that he was “not sure” whether he had misled those doctors;
•
He went to Centrelink to stop his disability pension shortly prior to the hearing of this matter on legal advice;
•
The plaintiff accepted that he did not want to be in hospital after the transport accident and discharged himself, at least in part because he was prohibited from smoking in bed;
•
He said that it may be that he only attended for physiotherapy for six days and that has been the extent of any physiotherapy since the transport accident;
•
The plaintiff did obtain some OxyContin at the hospital before being discharged;
•
The plaintiff sought pain relief through OxyContin on 11 January 2007 in the context of an infected tooth;
•
He accepted that since the middle of 2007, he effectively has had no medical treatment or physiotherapy in relation to his neck, back or shoulder;
•
He denied that he ever stated to Dr de Graaff that he experienced stiffness and a restricted range of movements in both shoulders;
•
He denied that he gave a history to Dr de Graaff that in August 2008 he was only walking about 200 metres at a time;
•
The plaintiff accepted that over the period from April 2009 to May 2009 he was in such places as Adelaide, Salisbury (in Adelaide), Prahran, St Kilda, Bairnsdale, Bruthen, Brunswick, Warrnambool and Portland;
•
When it was suggested to him that such movements would suggest that he was extremely mobile, the plaintiff answered:
“Why should I sit around depressed.”[54]
[54] T 117, L3
•
He accepted that on 13 October 2009 he was getting rent assistance for a property in Clayton which he had been sharing with an “on and off” girlfriend. He was also living in Swan Reach for periods during 2007 and 2008. He was also staying with friends in St Kilda during various periods in 2009. He accepted that he was not living with his mother full-time, but uses that as his residential and postal address;
• He is right-hand dominant; • He takes the painkiller for pains to his back and left shoulder; •
He has performed security-type work “one day here, one day there” from about March 2010. Such work was through a “mate”, and involved driving around and static work at factories;
• He had last done security work in or about June 2010; •
He has had three cortisone injections to his left shoulder and a flushing out of the shoulder;
•
Dr Joshi prescribes the OxyContin and Endep, which is used as a muscle relaxant. He believes he has been taking Endep since 2007;
•
He accepted that when he saw Professor Paoletti on 8 October 2008, he denied that he had used any drugs or drink notwithstanding the conviction in relation to the use of heroin in June 2008;
• He owned a motorbike up to approximately six or twelve months ago; •
He considers that his neck and his back are just as bad on any given day.
95 Under cross-examination, the plaintiff was shown video films taken on 23 September 2009, 6 October 2009, 30 August 2010, 31 August 2010 and 1 September 2010.
96 On 23 September 2009 and 6 October 2009 the plaintiff was shown walking normally, initially in Fitzroy and later in the city. On 30 August 2010 the plaintiff is depicted walking quite extensively with no apparent disability. When walking, he is wearing a back-pack and frequently talking on his mobile phone held with his left hand. On 31 August 2010 he is shown walking a short distance, again wearing his back-pack. On 1 September 2010 the plaintiff is again shown walking, carrying his back-pack. At one stage he is in company with a young woman.
97 Counsel for the defendant put to the plaintiff a copy of the claim for the disability support pension or sickness allowance which the plaintiff said was lodged by his doctor. The plaintiff ultimately accepted that he “probably did” sign that particular form. Although the actual document presented to the witness was an unsigned copy, counsel for the plaintiff effectively applied for protection under the Evidence Act, in that such questions may cause the witness to give a self-incriminating answer. Ultimately, I acceded to such request and granted the plaintiff a certificate, after which the plaintiff informed the court that he was aware that he was required to notify the then DSS if he was actually working.
98 In re-examination, the plaintiff considered that he had worked for about six weeks on a shark-fishing boat prior to the transport accident. He believed that he could not do all aspects of fishing work since the transport accident, as he could not raise his left shoulder above his head.
Cross-examination of Dr de Graaff
99 As noted earlier in this judgment, Dr de Graaff adopted his medical reports and gave further viva voce evidence. Under cross-examination he gave the following pertinent evidence:
•
That the plaintiff had not advised him that he had returned to work, and that he would have “preferred him to have admitted it to me”;[55]
•
It was his understanding throughout his examinations that the plaintiff was isolated physically at home, living with his mother;
•
He was unaware that the plaintiff had been warned by various doctors of overusing or misusing the OxyContin;
• He was not told of any use of heroin over the period of his treatment; •
Dr de Graaff was unaware that the plaintiff was involved in visiting people or living with girlfriends or moving around the state or in South Australia;
•
Dr de Graaff accepted that if indeed he had performed the type of fishing for the period of time that he has, his presentation to Dr de Graaff was “highly unlikely”;
•
Dr de Graaff accepted that the 80 to 90 per cent of the basis of his opinions is what he is told by the plaintiff.
[55] T 226 L20-21
Analysis of the Evidence
100 There is no issue that the plaintiff was involved in a transport accident on 20 October 2005 and conveyed to the Alfred Hospital. Although the report from the Alfred Hospital does not record a history of a left-shoulder injury or a low-back injury resulting from the transport accident, there would appear to be no issue that the plaintiff:
(a)
Suffered a low-back injury as a result of fractures of the left-side transverse processes of the L2, L3 and L4 vertebrae (as demonstrated on radiological studies); and
(b)
A left-shoulder injury initially diagnosed as involving some supraspinatus tendinopathy and evidence of disruption to the AC joint.
101 The plaintiff asserts that both these conditions give rise to significant restrictions and pain symptoms requiring the need for the narcotic OxyContin on a daily basis.
102 A major issue in the proceeding has been whether the plaintiff can be accepted as a creditable witness. Whereas counsel for the defendant urged me to reject the plaintiff as a reliable and credible witness, based on various misleading histories both to his own doctors and medico-legal specialists, and indeed the evidence given to this court, counsel for the plaintiff, although accepting that lies may have been told to various doctors in histories given by the plaintiff, submitted that essentially he was a witness of truth in giving his evidence before the court.
103 In his affidavit material, the plaintiff deposed that up to approximately mid- 2004 he had used heroin over many years and had been convicted and sentenced to a variety of prison terms. From mid-2004, so he deposed, he wished to “straighten himself out” in order to assist his mother and his three adult children. He asserted that he commenced to do some fishing work, both board trawling and shark fishing, on an intermittent basis, leading up to the date of the transport accident.
104 Also in his affidavit material, and during cross-examination, he accepted that he had been “caught” using heroin since the transport accident and had been on one occasion directed to undergo a drug rehabilitation course.
105 I observed the plaintiff give evidence over a day or so, and came to the view that he was not unintelligent, and somewhat manipulative about the way he gave his evidence. On occasions he was vague when it suited him, and on other occasions he exhibited bursts of aggression when he did not like the flavour of the questioning. In many medical reports, he gave false and misleading histories in relation to such matters as his work activities since the transport accident, his social activities since the transport accident, and his day-to-day activities. For example, the plaintiff informed Mr Gard (6 October 2009), Mr Dooley (30 August 2010) and Dr Stern (6 October 2009) that he had not worked since the transport accident and that he was incapable of work. In other evidence, the plaintiff asserted that he had returned to work in April 2009. Furthermore, when these matters were put to him, he was “not sure” whether he had misled these doctors.
106 Dr Stephen de Graaff, who has treated the plaintiff for pain management since 30 June 2007, was at no time informed that the plaintiff had resumed work since the transport accident or that he had lapsed into further heroin use. Furthermore, as Dr de Graaff accepted, the plaintiff painted a picture of living in isolation with his mother, enjoying very few day-to-day activities or social contact. Indeed, the evidence would suggest that the plaintiff was quite socially active, moving between various parts of Victoria and South Australia at different times. Also, he has lived with various friends, and indeed shared a house, for which he got rent assistance, with a woman, for about twelve months.
107 The impression I gained when Dr de Graaff was confronted with these revelations was that he was somewhat shocked, and, as he said in cross- examination, he is reliant 80 to 90 per cent on what a particular patient tells him.
108 I accept that on occasion, when pushed, perhaps more so when the court made inquiry, the plaintiff may have tried to give an honest account on some issues. For example, with no other material suggesting that he had been involved in any work other than fishing since the transport accident, the plaintiff volunteered, when pushed, that he had performed some intermittent security work with friends.
109 After considering his presentation in court and his various histories to doctors, I do not accept the plaintiff as a reliable or creditworthy witness.
110 I accept that it is incumbent on the court to assess all the circumstances surrounding the transport accident injuries in order to form a view as to whether or not the plaintiff can establish that he has suffered an impairment of his low back and/or left shoulder giving rise to consequences which satisfy the test set out in Humphries v Poljak.
111 In relation to the low back, although accepting that the plaintiff may suffer some intermittent minor low-back symptoms, I am of the opinion that he has failed to discharge his onus of establishing that the impairment of the low back and resultant consequences can be described as being at least “very considerable” and certainly more than “significant” or “marked”.
112 There is scant mention in the medical records in relation to the low back, and indeed, leaving aside issues associated with the OxyContin, there has been no direct treatment for the low back from any doctor. Indeed, as Dr Filbeck noted on 18 October 2006, the fractures in the lumbar spine have healed with only “minor and mild pain resulting”. When seen by Mr Grossbard on 22 July 2008, he thought the complaints of pain in the low back by the plaintiff were “a little out of proportion to the level of the injury”. Furthermore, when examined by Mr Gard on 26 February 2008, the plaintiff had a “vigorous reaction” when his lumbosacral spine was lightly touched (the equivalent of using a feather). Mr Dooley, when he examined the plaintiff on 30 August 2010, thought that such transverse process fractures may involve intermittent low-back pain, but he did not consider this to be a long-term major condition, and the reported symptoms by the plaintiff were more than one would expect for such an injury.
113 In relation to the left-shoulder injury, I accept the opinion of Mr Dooley that clinical examination of the left shoulder does not reveal evidence of a subluxation of the acromioclavicular joint; nor, though there may have been an earlier diagnosis of tendinopathy and some impingement, there were no signs of such condition on examination. Furthermore, Mr Dooley notes that from an orthopaedic point of view he would not have expected the plaintiff to be noting ongoing left-girdle pain some five years after the transport accident.
114 Counsel for the plaintiff submitted that it was reasonable to assume that the plaintiff was experiencing significant pain symptoms, from the three injections into that area. Such injections were undertaken in late 2006 and early 2007. Again, leaving aside the issue of OxyContin, the plaintiff has had virtually no treatment in relation to his left-shoulder injury over a long period of time. Certainly over the last couple of years, he has not undergone any active treatment in relation to the left shoulder, nor taken any particular medication peculiar to the left shoulder (again leaving aside the issue of OxyContin).
115 Counsel for the plaintiff referred to the examinations of the rheumatologist, Dr Kostos, on 11 October 2010 and that of the occupational physician, Dr Sillcock, on 30 September 2010. Dr Sillcock noted that “there appears to be some generalised muscle wasting around his left shoulder girdle”, and Dr Kostos noted that there was “some muscle wasting in the supraspinatus area”.
116 It is to be noted that Dr Kostos commented that his examination findings were not “entirely clear-cut”. No other doctor found any wasting around the left- shoulder area.
117 Although clinical examination by most doctors found restriction of movement of the left shoulder, I accept the opinion of Mr Dooley that “you just would not expect such marked restriction of shoulder motion on the basis of an acromioclavicular joint injury”.
118 Accepting that there may well be some limited impairment of the left shoulder, the question arises, how does this impact on the plaintiff in pain and suffering consequences? Counsel for the plaintiff points to the administration of OxyContin as an indicator as to the degree of pain which the plaintiff is experiencing in the area of his left shoulder and, for that matter, his low back. After a consideration of all the evidence, I am not persuaded by the plaintiff that he has anywhere near the degree of pain which he says he experiences in the left shoulder with a resultant need of the administration of OxyContin. It is unclear precisely why OxyContin was initially prescribed. The first general practitioner to prescribe the drug seemingly did so because of an infected tooth. Dr de Graaff accepted that the plaintiff was entitled to OxyContin because he was suffering “some chronic severe disabling pain” resulting in him living a very limited life.
119 There is no doubt, in my view, that Dr de Graaff came to the view that the plaintiff was severely disabled largely on the symptoms complained of by the plaintiff, with no indication, as I have already stated, that the plaintiff had resumed some fishing work from April 2009 and was capable of social intercourse with a variety of people and moving around the state of Victoria and to South Australia. In this sense, I formed the view that the plaintiff had manipulated his relationship with Dr de Graaff to ensure that there was an ongoing supply of OxyContin. As stated, on all the evidence, I am not prepared to find that as a result of any of the injuries suffered by the plaintiff in the transport accident, and in particular the left shoulder injury, has needed the administration of such a narcotic, certainly at this time.
120 Accordingly, although I find that the plaintiff may have some very limited impairment of the left shoulder, I do not find that any consequences of such impairment (and in particular any pain consequences) are such that satisfy the test set out in Humphries v Poljak.
121 It must be remembered that the plaintiff has been capable of fishing, and, although on occasion there has been a reference to some difficulties, the impression I gained from his evidence was that the only reason that he has been limited in the amount of fishing that he has undertaken is due to the lack of available fish, rather than any ongoing disability. Again, the plaintiff did not produce any detailed records of what work he has undertaken both in the fishing industry and to a lesser extent the security work. The Court can really form no realistic view of how much work the plaintiff has actually performed. In this respect, the plaintiff was particularly vague about his present employers both in the fishing industry and the security work.
122 The claim for serious injury under paragraph (c) of s.93(17) of the Act was not particularly pressed by those acting for the plaintiff. For completeness, I find that the plaintiff has not discharged his onus of establishing a severe long- term mental or severe long-term behavioural disturbance or disorder. I note in his second affidavit, sworn on 23 September 2010, the plaintiff deposed that his mental state had improved, that he did not feel as shut up and as down and depressed as he was. It is to be noted that the evidence would establish that the plaintiff has not undergone any psychiatric treatment and has not received any psychiatric medication except perhaps for Endep, which seemingly was largely used as a muscle relaxant. To the extent that the plaintiff relied on medico-legal reports from Professor Paoletti, who did diagnose a psychiatric condition which incapacitated him, such reports are particularly flawed, with misleading histories as to the activities which the plaintiff has undertaken since the transport accident.
123 I also note that, as commented earlier in this judgment, the plaintiff did not present in a depressed or anxious way when giving evidence, and, if anything, as I have stated earlier, gave his evidence in a selective and manipulative manner.
Conclusion
124 I dismiss the proceeding, and will hear the parties on the question of costs.
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Annexure A
1 The plaintiff tendered the following material:
(a) Exhibit 1 – affidavits of the plaintiff sworn on 10 March 2009 and 23 September 2010 found at pages 1 and 34 of the Plaintiff’s Court Book (“PCB”); various radiological and medical reports at pages 43-76 of the PCB; and various notes, medical notes and reports are found at pages 80-195 of the PCB. 2 The defendant tendered the following material:
(a) Exhibit A – two Notices to Produce dated 12 October 2010 and 27 October 2010 found at pages 38-39 of the PCB; (b) Exhibit B – medical reports from the orthopaedic surgeon, Mr Michael Dooley, dated 29 September 2010; the psychiatrist, Dr Stephen Stern, dated 9 October 2007 and 6 October 2009; and the neuropsychologist, Dr Ian Stuart, date 31 October 2007, such documents are found at pages 3-27 of the defendant’s court book (“DCB”); (c) Exhibit C – various certified extracts of criminal convictions of the plaintiff set out at pages 81-255 of the DCB; (d) Exhibit D – DVDs and videos of activities undertaken by the plaintiff on 23 September 2009, 6 October 2009, 30 August 2010, 31 August 2010 and 1 September 2010; (e) Affidavit of Shane Dugins sworn 27 October 2010 (found in the PCB) with the Court stating that certain parts of such affidavit had been struck out pursuant to a ruling given in the proceeding; (f) Exhibit F – document from CRS Australia dated 24 December 2009.
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