De Silva v Woolworths Group Limited

[2020] VCC 625

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-18-04787

RICARDO GARY DE SILVA	Plaintiff
v
WOOLWORTHS GROUP LIMITED	Defendant

---

JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	6 and 7 April 2020
DATE OF JUDGMENT:	21 May 2020
CASE MAY BE CITED AS:	De Silva v Woolworths Group Limited
MEDIUM NEUTRAL CITATION:	[2020] VCC 625

REASONS FOR JUDGMENT
---

Subject:  ACCIDENT COMPENSATION

Catchwords:             Damages – serious injury – injury to the cervical spine – severe mental or behavioural disturbance or disorder – paragraphs (a) and (c) of the definition of “serious injury” – leave sought for pain and suffering damages and pecuniary loss damages

Legislation Cited:     Accident Compensation Act 1985, s134AB

Cases Cited:Johns v Oaktech Pty Ltd [2020] VSCA 10; Jones v Dunkel (1959) 101 CLR 298; Peak Engineering & Anor v McKenzie [2014] VSCA 67

Judgment:                Leave granted to start a proceeding for the recovery of damages for pain and suffering and pecuniary loss.  Application under paragraph (c) for loss of earning capacity damages for severe mental or behavioural disturbance or disorder dismissed. 

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J H Mighell QC with Ms M Pilipasidis	Maurice Blackburn
For the Defendant	Ms S Manova	Hall & Wilcox

HIS HONOUR:

Introduction

1 Ricardo De Silva seeks leave to commence a proceeding for the recovery of damages in relation to injuries allegedly suffered arising out of or in the course of his employment with Woolworths Group Limited. He relies on paragraphs (a) and (c) of the definition of “serious injury” in s134AB(37) of the Accident Compensation Act 1985 (“the Act”). In relation to paragraph (a), in his counsel’s closing submission, the body function was confined to that relating to the cervical spine, abandoning those relating to the left knee and right shoulder. The application is made in respect of pain and suffering and pecuniary loss damages.

Circumstances 

2       Mr De Silva is now fifty-seven.  He was born in Sri Lanka.  Since leaving secondary school, after completing the equivalent of Year 10, he was continuously employed in a variety of occupations including his family’s business.  He trained as a typewriter technician.  He became a salesman and, later, worked as supervisor in a company which installed curtains.   

3       In 1985, Mr De Silva emigrated to Australia.  He was twenty-two.  Again, he was continuously employed in various occupations until his employment with the defendant in 2008 as a storeman.  He drove a forklift, working 10 hours a day, four days a week. 

Incident 

4       Prior to 30 October 2013, Mr De Silva enjoyed reasonable health.  As a child he suffered from cataracts.  He was a non-insulin dependent diabetic, suffered from high blood pressure and took a variety of drugs for these problems.  There was no previous neck pain.   

5       On that day:[1]

“… I was walking through the warehouse when my foot became wedged in a pallet that had been jammed underneath a safety barrier.  After my foot became stuck, I fell forward and the pallet moved forward with me.  I landed on my right hand and on my left knee.  A co-worker came to me and checked to see if I was okay.  I was embarrassed and tried to brush it off.  I went straight away to report it to my supervisor, before returning to my normal work on the forklift.”

[1]Affidavit sworn on 15 May 2018 at paragraph [9] 

6       The next day, he had difficulties with his right shoulder, left knee and right foot.  He sought treatment from the “company doctor”, Dr Stabelos, who prescribed Celebrex for pain relief and arranged x-rays for the right shoulder, left knee and right foot.[2]  He continued working without restrictions despite his pain.  He was somewhat unhappy with Dr Stabelos because he would not arrange MRI scans. 

[2]The report of the x-rays appears at the plaintiff’s court book at pages 256-257.  It reveals no abnormalities other than osteoarthritic changes in the first metatarsophalangeal joint.  

7       It is unclear when he first experienced neck pain following the fall, for in his first affidavit, he says:[3]

“Around one week later I found that I still had ongoing pain in my neck … .”

[3]Affidavit sworn 15 May 2018 at paragraph [11] 

8       On 11 November 2013, he attended his usual general practitioner, Dr D C  Jayasekera.  He told the doctor he was still experiencing pain and swelling in the left knee, was unable to use his right arm and moving his right shoulder was painful.  Dr Jayasekera arranged MRI scans of his left knee and an ultrasound of his right shoulder, certified him unfit for work for a week, prescribed Feldene and referred him to a physiotherapist, Philip Levin.  He started seeing Mr Levin fortnightly and this continued until 2018.  There was no mention of the neck.  Two days later, he saw Dr Barton, an occupational physician.  There was no complaint of neck pain.  A week later, he returned to work and was given office duties, which he did for about three weeks and then returned to work on the forklift truck at his request with lifting restrictions.

9       The forklift truck has a scanner.  Mr De Silva needed his right arm to pull it down against a spring for use.  This action aggravated his neck pain, which spread to the top of his right shoulder and the outer aspect of his right arm.  In February and March 2014, MRI scans and x-rays were taken of his cervical spine.  Unlike the scans of his left knee and the ultrasound of his right shoulder, the processes revealed significant changes. 

10      In March 2014, Mr De Silva saw Dr Maartens, a neurosurgeon, on referral from Dr Jayasekera.  Dr Maartens recommended a two-level cervical spine fusion, which did not take place.  By the time he saw Mr Klug in May 2014, his main complaint concerned his neck.     

11      In about May 2014, Mr De Silva was removed from the forklift trucks and again worked on office duties.  His duties were scanning documents, entering information into a computer system and “generally helping out where [he] could”.  Initially, he worked normal hours but they were reduced that month to six hours a day, four days a week.  This arrangement continued until 13 April 2016, when he was told there were no more light duties available.  He ceased working then, and in August 2016, the defendant terminated his employment.  His weekly payments of compensation ceased on 19 December 2016.  He then received Newstart payments.  In 2019, he was granted a disability support pension. 

12      In 2016, Mr de Silva sold his home due to his loss of income. 

13      In December 2018, the defendant stopped paying for his physiotherapy.  He paid for his own physiotherapy until August 2019.   

Vocational assessment

14      Rebekah Raftopoulos is a vocational counsellor and consultant.  CoWork Pty Ltd engaged her to prepare a vocational assessment of Mr De Silva and a labour market analysis.[4]  She assumed he had the capacity for suitable employment which did not aggravate his symptoms, such as heavy lifting (greater than ten kilograms), prolonged squatting and kneeling.  Psychiatrically, he had the capacity for suitable employment without restrictions.  After a lengthy interview with Mr De Silva, and having been supplied with a wealth of material, she identified three kinds of employment suitable for Mr De Silva: scheduler/appointment setter; call or contact centre operator, and order clerk.

[4]Report dated 12 June 2019

15      Katrine Green is a psychologist.  At the request of Mr De Silva’s solicitors, she saw Mr De Silva twice, in June 2019 and March 2020.  On both occasions, she took a detailed history and had a reasonable understanding of what his practitioners – physical and psychological – were saying about him in her first assessment and a better understanding in her second.  She examined six jobs: storeperson/order packer/assembler; forklift driver; courier/delivery driver; hand packer; factory process worker, and general labourer.  These were the jobs said to be suitable in the Co-Work report of June 2019.  She examined each job in some detail, concluding none was suitable for Mr De Silva generally but also from the perspective of the neck in isolation.  She repeated the process in 2020, examined the same jobs and came to the same conclusion.

Current situation

Pain

16      Mr De Silva’s neck pain is constant.  It varies in intensity between an average of 5 to a maximum of 8 out of 10, which descriptively is between an aching and sharp pain.  It is worsened by repetitive or sudden or sharp movements, keeping his neck fixed in one posture for too long or using his arms above shoulder height.  It is also worsened through repetitive and other movements of his arms.  This pain extends to the back of his head and into his right shoulder.  He experiences almost daily headaches, which he described as “migraines”.  They last for two or more hours and can leave him with residual headaches for up to 24 hours.  He takes Norflex, a muscle relaxant, and Panadol two or three times a week.  He tries to avoid taking Panadol because of his understanding of its side effects.  For that reason, he stopped taking Panadeine Forte. 

17      Despite Dr McCallum, a pain specialist, recommending branch blocks, which he understands would give pain relief, he declined, relying on the continued taking of pain-relieving medicines.  His reason for rejecting branch blocks was illogical: he would need to go to hospital, had a terrible fright of needles and had a family to care for.    

Activities

18      At home, his neck pain restricts what he can do and prevents him from helping except for light cleaning or light cooking.  He cannot sit in front of a computer for a prolonged period as his pain increases and he gets headaches.  With one exception, his shoulder movements are unrestricted provided he does them slowly.  The exception is carrying something above shoulder level, which he cannot do. 

19      Mr De Silva has not driven his four-wheel drive vehicle for years.  He is prevented by the state of his neck and shoulder from doing so.  It is fair to say the state of his shoulder alone would stop him driving. 

20      Focussing on the neck, in May 2018, Mr De Silva stated:[5]

“I continue to have …[constant] pain in my neck, however the pain varies in intensity.  When I have very severe pain, I sometimes experience a tremor.  This happens around three or four times a day.  I find it very difficult to feed myself using cutlery while experiencing a tremor.  I also have restricted movement, stiffness and soreness in my neck, in that I find it very difficult to turn my head from side to side, keep my head lifted to look up, or keep my head down to look down.  The pain I experience from my neck radiates down my right arm to my hand.  I …[experience] coldness in my right hand.” 

[5]Affidavit sworn 15 May 2018 at paragraph [23]

21      In his oral evidence, he described the tremor as shakiness, affecting his right hand, saying:[6]

“Q: How often is it shaky?---

A:Quite often.  It’s – if someone had a sense of humour and they watched me try to feed myself at night time with cutlery, it would be hilarious.”  

[6]Transcript at page 73

Treatment

22      Mr De Silva attends a psychologist, Dr Miach, and a psychiatrist, Dr Dharmage, regularly.  He takes an anti-depressant daily.  He takes Norflex, 100 milligrams, every second day.  He does hydrotherapy two or three times a week.  He continues to see the pain specialist, Dr McCallum. 

Socialising

23      Mr De Silva has difficulty in standing, walking and sitting for prolonged periods due to his neck pain.  The standing and sitting coupled with the effect of his medicines cause him to socialise less.  Depending on whether it is a good or bad day, he can sit between 30 and 60 minutes and stand between 5 and 20 minutes.  On a good day, he can walk up to 100 metres.  He drives locally and then only for 30 minutes. 

24      There are many activities he can no longer perform; however, his affidavit does not make clear which of his injuries inhibits him. 

25      Domestically, he does small, light shopping.  He helps his wife with light housekeeping.  His ability to shop, clean, cook and garden is markedly limited. 

Sale of home

26      After losing his job, he came to believe he could no longer work.  He believed his family would not be able to afford the mortgage repayments.  He sold his home of eighteen years.  Adding to his sadness at doing so, he lost his vegetable patch, which gave him much pleasure.  He now lives in rented flat. 

Loss of employment

27      Mr De Silva enjoyed his work and misses it.  He believes he will be unlikely to work again. 

28      He is very depressed and anxious.  He is frustrated by his situation and inability to work.  Sometimes, he feels completely helpless and suicidal.  He sees his psychologist and psychiatrist regularly.   

Medical and like evidence

Dr Jayasekera

29      On 11 November 2013, Mr De Silva first consulted his general practitioner, Dr D C Jayasekera, about his injuries from the incident, complaining about his right arm, right shoulder and left knee.  In late December 2013, Mr De Silva developed pain and numbness in his right arm and believed his right-hand grip was weak.  Dr Jayasekera found movement of his cervical spine caused pain, and arranged MRI scans.  On 10 February 2014, MRI scans were taken.  The radiologist concluded:

“Multilevel mild spondylosis.  On the right (symptomatic), there is severe C5/6 and moderately severe C6/7 foraminal stenosis.  Does this correlate with the clinical circumstances? C6 and C7 potential nerve root impingement.” 

30      Since Mr De Silva never had cervical spine symptoms before the incident, Dr Jayasekera then concluded the incident aggravated the existing degenerative process.  He referred Mr De Silva to Dr Maartens, a neurosurgeon, for an opinion, and he recommended surgery. 

31      Dr Jayasekera has continued to treat Mr De Silva.  He has diagnosed cervical radiculopathy involving the C5-6 and C6-7 nerve roots in the background of cervical spondylosis, and an Adjustment Disorder with Depressed Mood and Anxiety, maintaining these diagnoses since at least October 2014.  Back then, Dr Jayasekera noted an inability to work more than six hours a day mainly due to lack of energy and lowered mood due to his psychiatric illness. 

32      In July 2015, he noted persisting physical complaints but the psychological problems were more significant and persisting: severely depressed; lacking energy and motivation; anxious; socially isolated; irritable, and loss of libido  Those problems prevented increasing his hours at work and he was not reacting adequately to anti-depressants and psychotherapy.  Even then, he considered Mr De Silva unable to return to his pre-injury duties and, psychologically, he could not increase his hours but was capable of performing clerical and administrative work on part-time basis. 

33      In August 2016, Dr Jayasekera saw his main disability as psychological: depressed mood; anxiety; poor concentration, and loss of libido. 

34      In July 2017, it was unchanged. 

35      By April 2018, his main disability remained psychological, complicated by the illness of his wife.  By then, Dr Jayasekera thought him incapable of returning to any form of gainful employment. 

36      By November 2018, his physical symptoms had shown no improvement.  He was permanently disabled due mainly to his psychological illness and was unlikely to return to any employment. 

37      By January 2020, nothing had changed for the better.  Dr Jayasekera made four comments about capacity for work:

·        Mr De Silva will never return to his pre-injury duties. 

·        He is unlikely to do a job involving physical work. 

·        He is unlikely to learn new skills. 

·        His poor self-esteem and lack of confidence prevents him obtaining stable employment.   

Dr Barton

38      Dr David Barton is a consultant occupational physician.  At the defendant’s request, he has examined Mr De Silva on 14 November 2013, 23 August 2018, 13 June 2019 and 13 February 2020.

39      Dr Barton saw Mr De Silva just a fortnight after the accident and three days after Dr Jayasekera.  He complained about his right shoulder and right knee.  There was no mention of the right foot or neck.  Mr De Silva showed Dr Barton an x-ray report, presumably relating to the x-rays taken on 1 November 2013 (see footnote 2).  Naturally enough, Dr Barton mainly examined the arms, right shoulder and left knee.  Dr Barton considered Mr De Silva’s problems as minor and he needed to be encouraged to return to work as soon as possible.  The right shoulder and left knee were suffering mild soft tissue injuries.  The right foot had recovered.  There was no impediment to returning to full-time forklift driving. 

40      Almost five years later, Dr Barton re-examined Mr De Silva.  With the neck, he complained of constant pain with significantly reduced movements.  He experienced pins and needles in the right hand.  His hands were very weak and, at times, shook.  He believed, on the basis of what his doctors said, the shaking was due to his neck.  Dr Barton believed Mr De Silva was “somewhat symptom and disability focussed”, a comment which appears in his subsequent reports.  With the neck, there was mild diffuse tenderness in the mid-neck area.  Movements were limited to about two-thirds of the expected range.  Axial loading increased his symptoms.  Having noted the acceptance by the defendant of a neck injury, presumably due to the incident, Dr Barton commented:     

“… I am not sure that such an episode would cause the sorts of radiological findings and nor would it be likely to cause such a long history of persisting symptoms.”

41      Dr Barton believed a degree of overlay present due to the generalised weakness of the arms and the increased symptoms with axial loading.  Apparently he saw the reports of the 2014 radiology of the neck and felt they showed long-standing degenerative changes, fairly typical of people seen in Mr De Silva’s age group.  For the cervical spine, he diagnosed an unresolved soft tissue injury without radiculopathy.  Physically, he could return to full-time duties as a forklift driver.  He could undertake other suitable employment with minor restrictions on heavy lifting, prolonged squatting and kneeling.  He was against surgery. 

42      The third examination occurred less than a year later.  Mr De Silva complained of constant generalised pain around the back of the neck extending towards the right trapezius muscle.  Dr Barton’s examination of the neck revealed some diffuse tenderness extending towards the right side and movements limited to about a half of the expected range.  He found evidence of illness behaviour relating mainly to the right arm, although axial loading was a factor.  In relation to a question asking whether aggravation or exacerbation had resolved, he said:

“I do not accept that there was any particular work related aggravation or exacerbation of any neck problem that would persist for so long.  I felt that he may have developed a mild soft tissue injury of the neck, in relation to the fall but any such condition would have resolved.”  

43      Dr Barton’s views about capacity for work remained unchanged, explaining that the restrictions in his August 2018 report were probably a reference to age rather than “a physical necessity”. 

44      The complaints, findings and opinions from his last examination more or less repeat those in his June 2019 report. 

Dr Maartens

45      On 20 March 2014, Mr De Silva was examined by a neurosurgeon, Mr Nicholas Maartens, on referral from Dr Jayasekera.  Combining details of the fall, its aftermath and complaints of symptoms, Dr Maartens recorded:

“Mr De Silva was well until 30 October 2013 when his foot got stuck in a pallet which was lying in a walkway.  He tripped over falling forwards injuring his left knee and right shoulder and subsequently - it transpired, also his neck.  His job was a forklift driver involved considerable extension of his neck looking up.  His neck pain was equivalent to his arm pain and he had numbness and tingling in all his fingers.  … .”

46      Mr De Silva complained of pain in his neck and right arm, numbness in the right hand and weakness in the right arm and hand.  His examination revealed:

“... there did not appear to be any problem with his shoulders although there was some difficulty achieving full abduction on the right hand side between 160 and 170 [degrees].  There was weakness of elbow flexion and to a greater extent elbow extension on the right hand side.  Sensation was slightly altered in the arm distribution of C6 on the right in comparison to the left.  I had difficulty eliciting any of his reflexes – even with reinforcement.  Movement of his neck was painful on lateral flexion to the left causing pain on the contralateral right.  ….

He had experienced these symptoms for five months … .”

47      Dr Maartens was assisted by the results of MRI scans and flexion and extension x-rays.  The former showed narrowing of the C6 and C7 root canals on the right-hand side.  Dr Maartens arranged for flexion and extension x‑rays.  On 20 March 2014, they were taken, and the radiologist concluded:

“… cervical vertebral alignment is maintained through the exhibited range of flexion and extension.  There is mild uncovertebral and facet joint spondylosis most prominently at the C5-6 level, with mild osteophytic encroachment on the C6 and C7 levels bilaterally.  … .” 

48      To Dr Maartens, the x-rays showed compression on the left-hand side looked more significant than that on the symptomatic right-hand side.  Dr Maartens diagnosed right C6 and C7 spondylitic radiculopathy and recommended an C5-6 and C6-7 anterior cervical decompression and fusion (ACDF).  After doing his own research and speaking to his general practitioner, Mr De Silva did not agree with the recommendation. 

Mr Klug

49      Mr Geoffrey Klug is a neurosurgeon.  On 28 May 2014, he examined Mr De Silva at the request of the defendant’s agent.  His examination of the cervical spine revealed moderate restriction of movements.  Mr De Silva told him pain restricted those movements, felt mainly at the back of the neck and spreading to the top of his right shoulder and slightly towards the outer aspect of the right arm.  Mr De Silva’s complaints were consistent with MRI scans.  Mr Klug diagnosed cervical spondylosis causing neck pain and spreading to the right shoulder and arm but without neurological impairment.  Mr Klug could not say whether the cervical spondylosis became symptomatic due to the incident, adding:

“I certainly obtained a history that the symptoms could relate to a neck injury. 

In particular, when I examined this person , I did not think there was any significant alteration of function of the right shoulder which in its own right may have contributed to some of the symptoms described.” 

50      If there were degenerative changes in the cervical spine before the incident, they were asymptomatic.  When he saw Mr De Silva, Mr Klug did not think he could return to forklift driving in a full-time capacity, which requires normal and unrestricted movements of his cervical spine.  He could perform “non-physically” demanding alternative jobs, including office-type duties, subject to not working above shoulder height and frequently using stairs.  He supported the proposed fusion, in that it could lead to a satisfactory resolution of the pain but there was no guarantee of success.  Conservative treatment was unlikely to lead to an improvement apart from transient symptomatic relief.        

Mr Booth

51      Mr David Booth is an orthopaedic surgeon.[7]  On 2 March 2015, he examined Mr De Silva at the request of Dr Jayasekera.  Mr De Silva complained of pain affecting both shoulders, across the back of the posterior triangle of the neck, involving the neck musculature, extending up the neck to the occiput, and trouble with his left knee.  Although the focus of Mr Booth’s examination was the knee, he examined the neck and found no abnormality.  Reviewing him on 8 April 2015, it appears he was interested in the shoulders now.  He found no abnormal neurology in the neck.  There were neurological-type symptoms without neurological signs.  He knew an appointment with a neurologist was pending. 

[7]Reports dated 2 March 2015 and 8 April 2015 

Mr Solaiman

52      Mr Rabi Solaiman is an orthopaedic surgeon.  On about 21 November 2016, he examined Mr De Silva at the request of Dr Jayasekera.  The focus of his examination was exclusively on the left knee.  Mr Solaiman referred Mr De Silva to Dr Clayton Thomas for management of his pain.  The only mention of the neck appears in this sentence after he returned to work:  “… [He] returned back to his forklift driving Job at Woolworths and sustained another Injury to his neck”. 

Associate Professor Kempster

53      Associate Professor Peter Kempster is a consultant neurologist.  Dr Jayasekera asked for his opinion.  He saw Mr De Silva on about 10 March 2017.  He took a history of injuries to left knee, right shoulder, both arms and hands.  As to the neck, his remarks are ambiguous:

“I looked at 2014 MR[I] scans of the cervical spine.  These show some moderate spondylitic changes at various levels, with well-preserved central spinal canal dimensions.  Nerve conduction studies in January 2015 were normal.”

54      In a comment, which I assume included the neck, he could not identify a specific neurological disease or injury.  There were some regional pain tendencies and associated inhibition of muscle activity without true muscle weakness.  Cervical spine surgery would be unlikely to help.   

Dr Thomas

55      On 9 February 2017, Dr Clayton Thomas, a specialist in rehabilitation and pain medicine, examined Mr De Silva at Mr Solaiman’s request.  Dr Thomas saw him another three times in 2017.  He suffered from “fairly diffuse” pain complaints.  Since a chronic pain management programme seemed appropriate, Dr Thomas referred Mr De Silva to an 8-week pain management programme at The Victorian Rehabilitation Centre.  From the assessment report of the Centre, it appears no progress was made.  Psychologically, he was significantly affected:

“Psychologically, Mr De Silva reported significant depressive and anxiety symptoms, severe pain catastrophizing, high fear avoidance beliefs and low confidence in managing with a chronic pain condition.”

56      “Fear avoidance beliefs” is the fear that movement will aggravate pain or cause re-injury.        

Associate Professor Buzzard

57      Associate Professor Anthony Buzzard is a surgeon.  On 24 October 2017, he examined Mr De Silva for an impairment assessment at the request of the defendant’s agent.  Associate Professor Buzzard measured the movements of the neck using a goniometer; they were reduced.  Since the neck condition appeared after the accident, it was not causally related; however, the condition is due to the rotary movements of driving a forklift.  There were degenerative changes in the neck with evidence of osteophytic encroachment at C6 and C7.  Spinal fusion was inappropriate then.  Symptoms in the left hand did not definitely point to nerve root involvement.  Only the right shoulder needed treatment and that for symptoms.  He is capable of working in a job not involving a full range of movement of the neck and lifting his arms above shoulder height.  These restrictions preclude forklift driving. 

Dr McCallum

58      Dr Symon McCallum practises as an anaesthetist and pain specialist.  On 5 June 2019, he examined Mr De Silva, who told him of symptoms in his right shoulder, arm and neck.  With the last, he said:

“He has got pain on the base of his neck.  It wakes him up.  It throbs and it can shoot.  It is worse with stress and the muscles tighten.  He has got a headache around the occipital area and the top of the head.  He has it about four days a week.  It can last the whole day.  Again, it is throbbing.”

59      Dr McCallum found a decreased range of movement in the neck.  He thought the right-sided neck pain was muscular in origin.  He noted Mr De Silva was not keen on diagnostic medial branch blocks.  Dr McCallum prescribed the muscle relaxant, Norflex. 

60      Dr McCallum reviewed him on 3 July 2019.  He saw MRI scans which showed multi-level facet joint arthropathy, possibly some right-sided C6 and C7 foraminal narrowing due to uncovertebral arthropathy.  Mr De Silva had tried the Norflex, which helped with the pain but made him drowsy and affected his thinking and concentration.  He referred Mr De Silva to a functional rehabilitation programme at the Brunswick Hospital and recommended he take less Norflex. 

61      Dr McCallum reviewed again on 26 August 2019.  There was some improvement.  He was walking more. 

62      The last review was on 16 December 2019.  Mr De Silva had started, but did not finish, a 12-week pain management programme.  Dr McCallum told him to stop the programme as he was not getting benefit from it.  He was still struggling with pain in his neck and left knee.  His diagnosis was neck pain, possibly muscular in origin and possibly related to the facet joint arthropathy.  His headaches were related to his neck pain.  Interestingly, he noted Mr De Silva was depressed and anxious with suicidal ideation. 

63       Certainly, that was the recommendation of the programme:[8]

“Given that Ricardo has not reported or demonstrated any significant improvements to function, pain or distress, we do not consider it appropriate for him to make the arduous journey to Brunswick for rehabilitation support.  … .”

[8]Day rehabilitation discharge summary dated 22 November 2019 

64      The levels of his depression and anxiety had slightly improved but remained in the range of clinical disturbance.  There is an interesting paragraph in the discharge summary:

“Ricardo expressed his belief that all his pain is caused by irreversible damage done at the time of the workplace injury.  He does not believe that there is any contribution of nervous system sensitization.  He did not identify his functional level ‘I don’t let the pain stop me from doing anything’ or his thoughts ‘I don’t think about the pain’ as problems or intervention targets.  It seems that he makes a strong distinction between the injury and the pain, the former being the problem.”

Professor Bittar

65      Professor Richard Bittar is a neurosurgeon.  At the request of Mr De Silva’s solicitors, he examined him twice, on 18 February 2019 and 28 January 2020.  Given only about a year passed between examinations, not a great deal changed.  Mr De Silva’s complaints remained largely the same.  He complained of constant and predominantly right-sided neck pain with its character varying between sharp and aching.  The pain radiated to his right retroscapular region, right shoulder, right arm and back of the head.  It was exacerbated by various activities.  It improved with lying down, frequent postural changes, physiotherapy, gentle exercise, heat packs and medicines.  The level of pain was greater in 2018.  It was 7 to 9 or 10 out of 10 in 2019 and 5 to 8 out of 10 in 2020.  In 2019, he was still having physiotherapy but this had stopped by 2020. 

66      On examination, there was moderate restriction of cervical flexion in 2019.  It was severe in 2020.  Extension remained the same at mild.  On both occasions, there was right-sided paravertebral tenderness extending over the trapezius with palpable spasm of the trapezius muscle group.  The arms and legs revealed no evidence of radiculopathy. 

67      In 2019, Professor Bittar saw the reports for x-rays and MRI scans of the cervical spine taken in 2014.  In 2020, he viewed the actual MRI scans taken on 25 June 2019.  These showed mild multi-level disc bulging throughout the cervical spine, most prominent at C5-6, and multi-level facet joint arthropathy.  At C5-6, there was bilateral foraminal narrowing and probable nerve root compression.  At C6-7, there was an annular tear with an associated small disc bulge. 

68      In 2020, Mr De Silva complained about constant and predominantly right-sided neck pain.  The character of the pain varied between sharp and aching.  The neck pain radiated into the right retroscapular region, the right shoulder, down the right arm and to the back of the neck.  He experienced less pain in his left arm.  Under the heading “Right brachialgia”, Professor Bittar said:

“… He experiences pain radiating through his right triceps in to his forearm and particularly to his wrist.  His arm pain is constant and is of a similar character to his neck pain.  His arm pain has an average severity of 4/10 with a maximum of 6/10.  It has the same exacerbating and relieving factors as his neck pain. 

He also experiences intermittent numbness and pins and needles in his hands.”

69      Describing the pain as brachialgia is to place it in the brachial plexus, which is itself part of the area of the cervical spine.  I assume this pain is part of that due to the aggravation of the spondylosis, for Professor Bittar found no evidence of radiculopathy or myelopathy.  Following both examinations, he diagnosed aggravation of cervical spondylosis and cervicogenic headaches.  The injury caused on 30 October 2013 remains a significant contributing factor to the ongoing pain, disability and requirement for treatment.  Spinal surgery would not benefit.  He should continue to see Dr McCallum, continue his current treatment and resume physiotherapy.

70      In 2020, Professor Bittar maintained Mr De Silva must avoid sudden or repetitive neck and arm movements, repetitive or forceful pushing or pulling, lifting more than about five kilograms and maintaining his neck in a fixed position for more than very short periods.  These restrictions were permanent.  In 2019, the lifting restriction was five to ten kilograms.  For the foreseeable future, he will suffer significant pain and disability.  He is permanently incapacitated for his pre-injury duties.  After taking into account other factors (age, education, training, skills, work experience) as well as his physical condition, Mr De Silva was permanently incapacitated for all work.       

Mr Chehata

71      Mr Ash Chehata is an orthopaedic surgeon, specialising in the arms.  On 19 March 2019, he examined Mr De Silva at his solicitor’s request, focussing his attention on the right shoulder.  The incident caused the development of post-traumatic arthritis.  Owing to this injury, he could not see Mr De Silva gaining meaningful employment in the near future.  Due to the restriction in the range of movement, weakness, affected sleep, mental health issues, needing analgesics and the failure of conservative treatment, he had a permanent impairment.  At best, the prognosis was guarded, likely leading to a shoulder replacement.    

72      Mr Chehata re-examined Mr De Silva on 28 January 2020.  His focus still remained on the right shoulder.  He re-worded his diagnosis to aggravation of the shoulder’s arthritic process.  Based on the idea of “realistic capacity for work”, he had none.  The condition is progressive.  The prognosis is poor, with a total shoulder replacement very likely. 

Associate Professor Love

73      Associate Professor Bruce Love is an orthopaedic surgeon.  On 16 April 2019, he examined Mr De Silva at the request of his solicitors.  The focus of examination was on the left knee.  There is little discussion about the neck.  Associate Professor Love noted Mr De Silva saying “his neck continues to trouble him causing headaches with pain in the region of the right shoulder and weakness in the right hand”.  It was the symptoms in the left knee which forced him to stop cycling and stop playing soccer and cricket with his children and grandchildren.  The condition of the left knee would limit him to essentially sedentary work where he could choose his posture and did not require walking distances or standing for long periods. 

74      Associate Professor Love re-examined Mr De Silva on 3 February 2020, again, with his focus on the left knee.  The inability to sit or stand for long periods, walk distances, coupled with the effect of medicines, meant Mr De Silva did not have a realistic capacity of obtaining and maintaining employment.  The prognosis was guarded but might change if recent imaging was made available.  Later, 2019 x-rays were made available.  They merely raised the suggestion of MRI scanning because he expected more significant findings after six years and complaints of severe symptoms.  MRI scans may provide a diagnosis leading to potential surgery.  

Dr Cheesman

75      Dr Ben Cheesman is an occupational physician.  On 12 April 2016, he examined Mr De Silva at the request of the defendant’s agent.  His diagnosis was tentative: possible cervical spondylosis causing radicular symptoms in the right upper limb.  He was confident about the cervical spondylosis and uncertain about significant nerve root impingement.  This needed investigation.  Mr De Silva should remain on modified duties while it is investigated.  There was no need to reduce his hours. 

76      In a subsequent report, Dr Cheesman considered various job options identified by an IPAR report dated 4 July 2016: customer service officer; ticket seller; pricing clerk or labeller; car park attendant, and process worker (small goods/light duties).  He was uncertain about the customer service job; felt ticket seller and pricing clerk, et cetera, were suitable, and the others unsuitable.

Dr Middleton

77      Dr David Middleton is a physician specialising in occupational health and rehabilitation.  On 11 February 2020, he examined Mr De Silva at the request of his solicitors.  He was provided with a wealth of documents including Mr De Silva’s first affidavit.  He summarised each of these documents in great detail.  He took a very detailed history from Mr De Silva.  He examined the neck, shoulders and knees.  He measured the movements of the neck, shoulders and knees.  With the neck, they were mainly restricted.  He was aware of the 2014 x-rays and MRI scans of the neck taken in 2014 but unaware of the 2019 MRI scans.  As to diagnosis, Dr Middleton said the fall:

“… affected his previously asymptomatic, aged-related degenerative disease of the cervical spine, resulted in the onset of cervical instability, particularly at C5/6 and C6/7 with discogenic pain extending down the right arm affecting the C5, C6 and C7 nerve roots causing pain and weakness in the right dominant hand, there being a significant neuropathic component to that pain, which has failed to respond to all forms of conservative management, likely to continue for the foreseeable future.”

78      The involvement of the C6 and C7 nerve roots led to loss of grip strength in the right hand.  He thought the injuries, including the neck, were consistent with Mr De Silva’s description of his fall. 

79      Dr Middleton was asked to assess Mr De Silva’s capacity for work, looking at the neck, left knee and right shoulder separately.  With the neck alone, and under the heading “Incapacity”, Dr Middleton considered Mr De Silva:

“… no longer has the safe or reliable physical capacity to attend work on a permanent basis without risk of re-injury.  …  He is limited to sedentary, non-manual activities, to be performed in a self-paced manner with the provision of work breaks as required and the ability to change posture frequently.” 

80      With his right arm in particular, he must limit activities to below shoulder and above hip height, preferably at waist height and avoiding repetitive, prolonged or forceful activities.  There were weight and force restrictions.  Owing to his medicines, he cannot work with machinery and is limited to part-time work. 

81      Under “Age”, his age, at fifty-eight, was an impediment to gaining employment. 

82      Under “Skills and work experience”, which he considered “semi-skilled,  basically manually dependant work”, he said:

“… the skills of these jobs, which provide virtually no basis on which Mr De Silva could realistically find work where the physical demands of such work would conform with his restrictions as set out simply, described as sedentary, non-manual duties where a new employer would have to support a graduated return to work.” 

Imaging of the cervical spine  

83      Mr Klug examined the scans and agreed with the radiologist’s conclusions, adding there was some evidence of neural compression on the right-hand side of C5-6 and C6-7.

84      On 25 June 2019, MRI scans were taken at the request of Dr McCallum.  Professor Bittar saw the scans.  His observations were:

“These demonstrate mild multilevel disc bulging throughout the cervical spine, most prominent at C5-C6.  They demonstrated multilevel facet joint arthropathy.  At C5-C6, there is bilateral foraminal narrowing and probable nerve root compression.  An annular tear with an associated small disc bulge was seen at C6-C7.” 

Psychiatric and psychological

Dr Dharmage

85      Dr Dulip Dharmage is a psychiatrist.[9]  On 30 June 2014, he saw Mr De Silva at the request of Dr Jayasekera.  On that day, Dr Dharmage noted:

“… Ricardo described his mood as depressed and anxious.  His affect was congruently depressed and anxious.  His speech was normal and he was not thought disordered.  He was preoccupied with his physical disabilities caused by the work related injuries and about his uncertain future.  Ricardo denied experiencing delusions or hallucinations.  He has no suicidal ideation at present.  Ricardo had a limited insight into his illness.”

[9]Report dated 23 January 2020.

86      Dr Dharmage prescribed an anti-depressant, escitalopram (Lexapro), 10 milligrams daily.  When he saw Dr Dharmage, Mr De Silva was already seeing a psychologist. 

87      Dr Dharmage next saw Mr De Silva on 11 May 2015.  Since he was suffering significant anxiety, he provided psychoeducation regarding anxiety and depression and increased the escitalopram to 20 milligrams daily. 

88      Dr Dharmage next saw Mr De Silva on 15 July 2016.  Mr De Silva reported depressive symptoms and increased anxiety since his employment ended in April 2017. 

89      Dr Dharmage saw him again four times in 2016, with the last in December.  By then, his mental state had deteriorated.  Dr Dharmage increased the escitalopram to 40 milligrams daily. 

90      During 2017, there was no significant improved in his depression and anxiety. 

91      During 2018, far from improving, his anxiety and depression worsened.  His monthly psychological treatment, his anti-depressant, hydrotherapy and physiotherapy had not improved his psychological or physical condition. 

92      Dr Dharmage saw him only twice in 2019.  His anxiety and depression had not improved or declined. 

93      On 23 January 2020, Mr De Silva told Dr Dharmage:

“… his mood has been very low and [he has been] unable to enjoy anything in his life.  He can sleep only [a] few hours at night.  He has lost his appetite.  Ricardo has difficulties in concentration and has a poor short term memory.  Although he has low energy levels his motivation has improved.  Ricardo denied experiencing suicidal ideation.  Ricardo reported that there is no improvement of his anxiety symptoms.  He has been experiencing heightened anxiety associated with worrying over minor issues, feeling as [if] he is living on edge most of the time, irritable and experiencing muscle tension.  Ricardo told me that he has been experiencing regular panic attacks at least once in [a] fortnight.  He denied experiencing psychotic symptoms.”

94      To Dr Dharmage:

“Ricardo described his mood as depressed, anxious and irritable.  His affect was also congruently depressed and anxious. 

His speech was normal in rate and tone.  His speech was spontaneous. 

He was not thought disordered. 

He denied experiencing any form of delusions. 

He denied experiencing any form of hallucinations. 

Ricardo was able to give a coherent history.  He was not disoriented.  He reported that his memory and concentration have been impaired.  Otherwise, his cognitive functions were reasonably intact. 

He denied that he had been experiencing suicidal ideation at present.

Ricardo seemed to have reasonable insight into his illness.” 

95      Dr Dharmage diagnosed Major Depressive Disorder and Generalised Anxiety Disorder with panic symptoms. 

96      As to the issue of permanency, Dr Dharmage said:

“After considering the lack of any significant improvement of his psychiatric symptoms over last three years, in spite of receiving psychiatric treatment and psychological therapy, I believe that Ricardo’s psychiatric conditions are now stabilised.”

97      As to causation and prognosis, he said:

“The reasons for the development of Ricardo’s depression and anxiety are largely related to his physical injuries to his neck, right shoulder and left knee leading to physical disabilities.  As long as there is no satisfactory resolution for Ricardo’s work related physical injuries, his depressive and anxiety symptoms are unlikely to improve to a satisfactory extent, no matter how his depression and anxiety illnesses are treated.  Therefore, assuming these stressors remain unchanged, his depression and anxiety symptoms would respond partially to any psychiatric treatment.  In my opinion, his prognosis is poor.”

98      The above paragraph was Dr Dharmage’s response to the question:

“Prognosis and the effect of the injury on our client’s work and leisure activities.” 

99      As can be seen, the paragraph does not respond directly to that part of the question relating to Mr De Silva’s “work activities”. 

Dr Miach

100     Dr Patricia Miach is a psychologist.[10]  She has treated Mr De Silva regularly since 2 October 2014.  Throughout she has diagnosed an Adjustment Disorder with Anxious and Depressed Mood.  The condition has been exacerbated by his increasing financial stress, the disappointment associated with not resolving his claim, feelings of inadequacy as a father and husband, as he is no longer a good provider, and his tendency to attribute any stress or problem in his family to his inadequacy and failure:

“He continues to ruminate about the loss of social contacts through his work at Woolworths where he felt valued as reliable and trustworthy, and which he perceived as being very much part of who he was, and reports angry, depressed mood that after his loyalty and 19 years with Woolworths, they ended his work and offered no form of modified employment to accommodate his disability.  His self esteem has progressively deteriorated despite his attempts to overcompensate by attempting to do more for his wife, children and his parents.  He has reported an angry sense of helplessness when confronted by the limitations imposed by his physical disability in his attempts to engage in his former physical and handyman activities.” 

[10]Report dated 30 December 2019. 

101     Dr Miach continued with cognitive behavioural therapy and behavioural activation, which limited exacerbation of his condition but further improvement was unlikely given his current financial stressors. 

102     Dr Miach gave three earlier reports, two to Mr De Silva’s solicitors: 2 July 2016; 13 April 2018, and 4 November 2018.  The most detailed is the first.  Presumably, based on attending him between October 2014 and June 2016, he presented:

“Mr. De Silva was not tearful but at times has been agitated dependent on his thoughts about his future and sense of self worth. His affect has been anxious, sad and dysphoric, and moderately irritable.  He has expressed some thoughts of hopelessness about the future in response to his work situation.  There were no psychotic symptoms or cognitive disturbance with insight and judgement normal.”

103     Dr Miach diagnosed an Adjustment Disorder with Anxious and Depressed Mood with the risk of developing a Major Depressive Disorder. 

104     In 2016, she thought his condition had stabilised and was unlikely to show any significant improvement unless –

“… he is offered some consistent reduced hours and more office type modified work with retraining at Woolworths, while acknowledging that he cannot return to his normal pre injury duties.” 

105     On 4 November 2018, she commented:

“He had hoped for some form of modified employment from his former employer to accommodate his disability.  I am not aware of any barriers other than his injury and medical condition to undertake employment.  Based on his Psychological condition, he would be permanently unable to return to work which did not accommodated his disability.”

Dr Cohen

106     Dr Zeeva Cohen is a consultant psychiatrist.  On 16 June 2016, she examined Mr De Silva at the request of the defendant’s agent.  Among many things, he told her of the sale of his home “to make ends meet” and his suicidal thoughts “he was aware that his family needed him and therefore had no intent or plan to harm himself”. 

107     Dr Cohen diagnosed an Adjustment Disorder with Depressed Mood.  She attributed this condition to his loss of employment and his ongoing physical health problems as he perceived them.  As to the former, she added: “Mr De Silva expressed a sense of betrayal that his company had withdrawn the modified duties and I would consider that a perpetuating factor in his current state”.  Psychiatrically, he could return to his pre-injury duties and hours subject to his physical condition.  He could perform any alternate duties.  His current treatment was appropriate, consisting of anti-depressant medicine and psychological therapy.  It should continue for another twelve months to mitigate against further relapses.   

Dr Shan

108     Dr Dush Shan is a consultant psychiatrist.  On 16 October 2017, he examined Mr De Silva at the request of the defendant’s agent.  He found Mr De Silva a detailed historian and took a detailed history from him.  The results of Dr Shan’s mental health examination are longer than one normally encounters in these reports.  His affect revealed anxiety and depressed mood.  His thought was obsessive and fixated with a catastrophic view of his injury.  There were periodic suicidal thoughts, but no more.  His insight and judgment were impaired, reflecting his underlying rigid personality.  He has problems of concentration and short-term memory. 

109     Dr Shan diagnosed an Adjustment Disorder with Mixed Depression and Anxiety.  His disorder limited his daily activities of living, social functioning and concentration but not occupation.  His condition had stabilised.  Interestingly, in his impairment assessment and in light of his mental state examination, Dr Shan placed thinking and mood behaviour in the mild category and the rest in the normal to slight category.    

Dr Krapivensky

110     Dr Natalie Krapivensky is a consultant psychiatrist.  She has seen Mr De Silva twice. 

111     On 21 August 2018, Mr De Silva told her there were days when he felt very depressed and wants “to throw in the towel”.  He described thoughts of “not wanting to be here” but not of self-harm.  His depressed mood, despair and despondency had exacerbated and deteriorated significantly since his job ended.  His sleep was interrupted by pain but he goes back to sleep easily.  There were no significant symptoms of anxiety or symptoms of panic attacks reported.  He was taking a relatively low dose of an anti-depressant, Lexapro, and Celebrex for pain relief.  Dr Krapivensky was given several reports, including one from the treating psychiatrist, Dr Dharmage, who had diagnosed a Major Depressive Disorder.  Nevertheless, she diagnosed an Adjustment Disorder of moderate severity with Anxious and Depressed Mood “on the background of chronic concerns for his wife’s health and absence of significant physical findings as well as some discrepancy between reported pain levels and objective radiological findings”.

112     Dr Krapivensky saw the primary injury as physical and being the main cause of the impact on Mr De Silva’s lifestyle, recreational activities and treatment.  Psychiatrically, he could return to his pre-injury duties and hours.  There were no psychiatric restrictions on his work capacity.  It is unclear whether Dr Krapivensky linked his physical injuries to his psychological state when she said:

“His condition developed as a result of termination of employment in August 2016 and is maintained by concern for the chronic ill health of his wife and inability to have gainful employment which he is used to and which he found to be supportive and [an] important contributing factor to his self-esteem and meaning in his life.”

113     Dr Krapivensky saw Mr De Silva again on 16 March 2020.  To her, he did not endorse significant psychiatric symptoms.  He was worried about his financial position and the slow pace of the legal process.  His sleep was chronically disrupted.  Surprisingly, in light of the reports of Doctors Dharmage and Miach, she said his upset at how the defendant had treated him had largely resolved.  The only abnormal aspect of her mental state examination was the content of his thought which reflected the themes he spoke about:  finances, frustration with the legal process and his wife’s deteriorating health.  She maintained her diagnosis of an Adjustment Disorder with Anxious Mood.  It was now mild in severity.  She believed no more intensive treatment was needed because he received the same medication for years.  The main causes of his anxiety were his finances and frustration with a slow legal process.  His psychiatric condition did not severely impact his lifestyle, recreational activities and treatment.  Psychiatrically, he could perform suitable duties including the duties in the Co-work assessment, dated 12 June 2018.  His prognosis is very good although he may require long-term treatment with anti-depressants.  She did not think he needed to see both a psychiatrist and a psychologist; one would be enough. 

Discussion

Credit

114     As has been said many times before, in cases of the present kind the credit of the applicant will often be critically important.[11]  The defendant submitted Mr De Silva was neither truthful nor reliable.  I do not accept the submission. 

[11]Johns v Oaktech Pty Ltd [2020] VSCA 10 at paragraph [76]

115     I do not consider Mr De Silva was an untruthful or unreliable witness.  I did not consider him evasive or argumentative.  There again, I would not describe him as direct.  His answers reflect his preoccupations, described in considerable detail over the years by Doctors Dharmage and Miach.  Where counsel submitted an answer was unresponsive or an attempt to maximise his case, I saw rambling responses indicative of his underlying issues.  His odd distinction between injury and pain explains his response to the question about what Dr Krapivensky noted him saying.  It points to a deeper problem.  Indeed, there were inconsistencies between his oral evidence and his affidavits but these were matters of emphasis and again reflective of his underlying condition.  His suicidal ideation crops up in a number of reports.  All that that means is, at times, he thinks about suicide and, at other times, he does not.  Some of his answers were irrational, for example his answers about not accepting branch blocks.  Over several questions, his answer emerged, first, his commitment to his family, especially his ill wife, then a fear of things like needles and sharp objects, and then incoherency.  It would be easy to say these answers pointed to an untruthful witness.  What it showed me was a person frightened by the consequences of what had befallen him and acting irrationally, both in thought and action. 

116     Although surveillance film exists about Mr De Silva, none was shown to me.  One supposes it goes to the issue of physical disability.  With the neck, it would be a marked reduction in the movements of the neck.  As an application of Jones v Dunkel,[12] I would infer it would not assist the defendant’s case.  It is not a damning circumstance as his counsel would have me view it. 

[12](1959) 101 CLR 298

117     Mr De Silva had a continuous work history in Sri Lanka and in Australia.  The ending of his work with the defendant was not his choice.  He tried to retrain, going as far as paying for part of a computer course.  His attitude to the defendant is one of bitterness.  He believes he was loyal but it was not to him.  Although some doctors speak of illness belief, none doubted his genuineness, including Dr Barton.  Overall, I do not doubt his truthfulness or reliability. 

Cervical spine

118     Mr De Silva suffered a compensable injury to his cervical spine in the fall but the nature of the injury is an issue.  The defendant submits there lacks radiological evidence of a frank injury such as a disc prolapse or a bony injury.  That is incorrect.  From February 2014, there is considerable radiological evidence of a damaged cervical spine.  The real issue is what injury did the fall cause.  Dr Barton repeatedly insisted on a soft tissue injury and the radiological findings were typical of those found in a person of Mr De Silva’s age.  Associate Professor Buzzard says there is no link between the state of his neck and fall.  Professor Bittar diagnosed an aggravation of pre-existing spondylosis.  The essential assertion is the neck was asymptomatic before the fall and was symptomatic, at the latest, within a month.  Dr Thomas does not diagnose except to say he has fairly diffuse pain complaints and ongoing neurological symptoms in his right arm.  Dr McCallum is equally vague.  The right-sided neck pain may be the cause of the headaches.  The origin of this pain may be muscular and may be related to facet joint arthropathy. 

119     As to a compensable injury, Dr Cheesman is unhelpful.  He does not comment on the link between work and injury.  Both Dr Jayasekera and Mr Klug assert there was no previous issue with the neck, presumably because Dr Jayasekera, from treating Mr De Silva for years, and Mr Klug, from direct questioning.  There was no cross-examination of Mr De Silva about the state of his neck before the fall.  This was no oversight, for the cross-examination was searching.  It is not a necessary corollary that I should accept an unchallenged proposition but there is no reason not to accept the proposition that his neck was asymptomatic before the fall and became significantly so not long afterwards. 

120     Mr Booth focussed on the knee.  He had not seen the report of the MRI scans of the cervical spine.  I would not, as Mr De Silva’s counsel submits, dismiss his opinions.  They are not definitive alone but are useful for subsequent practitioners in forming their opinions.  Associate Professor Kempster excluded neurological disease or injury.  His opinion is similarly useful. 

121     For the purposes of this application, I am satisfied the injury to the cervical spine is an aggravation of pre-existing spondylosis.  The degenerative state of the cervical spine at the time of the fall is undeniable.  Its condition, coupled with symptoms, caused Dr Maartens to recommend a two-level fusion. The cervical spine was not symptomatic before the fall but within a short time afterwards it was. Where Doctors Barton and Davidson thought the effect of the injury had resolved, I would not accept that view. This view supposes an aggravation of the condition, its cessation with continuing symptoms due to the progress of the underlying disease. I cannot accept the coincidence of the fall triggering symptoms, ending and immediately replaced by symptoms due solely to the underlying disease. It is unrealistic to deny the link between the fall and symptoms due to a short gap in noticing them. The aggravation has caused pain, continues to do so and will do so permanently, in the sense of for the foreseeable future. 

122     Whether the radiological evidence support or deny an organic injury is a medical issue.  I could not so conclude without the aid of medical opinion.  Professor Bittar was in the best position to assess the radiological results.  He is a neurologist and, no doubt, his speciality requires examination of the various types of images.  In this case, he, and perhaps Dr McCallum, saw the 2019 MRI scans.  Given his two examinations, he was in a better position than anyone else to diagnose the problem with Mr De Silva’s neck.  Neither Mr Booth nor Associate Professor Kempster was in such a good position as Professor Bittar.      

123     There is another issue raised by Mr De Silva.  In his second affidavit, he traces the path of his neck into his right shoulder and into his right arm and back of his head.[13]  Implicitly, Professor Bittar explains the symptoms of the right arm in terms of brachialgia, for he found no evidence of radiculopathy or myelopathy.  Neither Mr Booth nor Associate Professor Kempster found abnormal neurology on their examinations, at least, in the case of Associate Professor Kempster, related to the fall.  Brachialgia is a condition emanating from the neck and affecting an arm.  Dr Middleton does not speak about brachialgia but of cervical instability caused by the aggravation of the underlying pathology, affecting three nerve roots and causing pain and weakness in the hand with a significant neuropathic component of the pain.  Since neither of the neurologists speak of neuropathic pain, then I would discount that aspect of the opinion.  However, both Professor Bittar and Dr Middleton connect the condition of the neck to the symptoms of the right arm, as did Dr Maartens, when he said a two-level posterior cervical foraminotomy would be effective in alleviating the right arm symptoms. 

[13]At paragraph [3]

124     Dr Barton spoke of illness behaviour and Dr Cheesman noted inconsistencies in his examination. Such anomalies in presentation were confined and, at best, point to a very slight psychological factor intruding into the physical presentation. In the organic context, it is easy to disregard and arrive at the conclusions which I have reached.      

Pain and suffering consequence of the cervical spine injury

125     Mr De Silva experiences constant neck pain.  It is his main source of pain.  Its intensity varies but is always at a significant level.  It increases when he uses his arms above shoulder level or performs any sudden or sharp movements using his neck.  The pain restricts his ability to move his neck.  Flexion is severely restricted; extension less so.  The other movements are restricted to about half of normal.  There is tenderness extending over an appreciable area on the right side of his neck, from the paravertebral to the trapezius.  Professor Bittar found palpable muscle spasm over these muscle groups in 2018 and 2019.  He experiences pain in his right arm and, intermittently, the pins and needles sensation in his right hand.  These are referred from the cervical spine.  He experiences almost daily, serious and prolonged headaches.  The headaches affect his ability to think and concentrate.  Despite the date of their first onset, I accept Professor Bittar’s view that they are due to the dysfunctional cervical spine.  Unfortunately, the experience of pain and headache is permanent for a person of fifty-seven.  He takes pain-relieving medicines and his need to do so continues. 

126     The condition of his neck places sensible restrictions on what Mr De Silva should avoid doing.  They are set out by Professor Bittar.  He should avoid sudden or repetitive neck or arm movements, repetitive or forceful pushing or pulling, lifting more than about five kilograms and maintaining his neck in a fixed position for more than a very short time.  In practice, they restrict what he can do about the house to light cooking and light cleaning.  Sitting in front of a computer for a prolonged period increases his neck pain and causes headache.  Taking Norflex makes him drowsy but it does relieve his pain.  His ability to garden and do household repairs was limited until he sold his house and moved into a flat and the need no longer arises. 

127     Before the fall, Mr De Silva engaged in outdoor activities.  He no longer does.  He has ceased fishing because he cannot cast.  This is an issue of his shoulder and neck.  He no longer camps.  He owned, at the time of the fall and still does, a four-wheel drive vehicle.  He drove in the bush after the fall, into 2014 and, possibly, 2015 and then only on about three occasions in all.  He has not done so since then.  Four-wheel driving is something he did with his wife and children; however, his wife’s illness has removed this as a pastime even if Mr De Silva was able to do it now. 

128     Mr De Silva loved his job with Woolworths:[14] 

Q: “You talked about them tolerating you but the truth is that you never complained to them about not being able to do your clerical duties, you went and did them?---

A:I was trying.  To me it was a way of providing a living and it also helped me – because of my attachment to Woolworths, I felt like I was part of the Woolworths’ family and my family, it was the same attitude I had towards my job.”

[14]Transcript at pages 18-19

129     Mr De Silva’s use of the expression “Woolworths’ family” is interesting.  He looked upon his employer and his fellow employees as a family, on a par with his domestic family.  I can only speculate as to why he did so.  He had been employed by the defendant for many years.  It may be the defendant fostered a spirit of closeness and loyalty.  Nevertheless, it was not merely the loss of his capacity to drive a forklift truck but also his loss of employment with the defendant which has so upset Mr De Silva.  Although not touched upon in his oral evidence, Mr De Silva repeatedly raised with practitioners his distress at losing his employment.  He told Dr Miach:[15]    

“In our last session on 30/6/16 …  He reported a sense of worthlessness since he had lost his position of a ‘Go to’ person at Woolworths who was valued as reliable and trustworthy.”

[15]Report dated 2 July 2016.  See also report of CoWork Pty Ltd dated 12 June 2019 at page 20 

130     For physical reasons, he cannot return to work as a forklift truck driver.  That is the near unanimous view of the medical practitioners.  I reject the views of Dr Barton because it is against the weight of the evidence.  How I treat this loss is set out in Peak Engineering & Anor v McKenzie,[16] in particular, his loss of enjoyment of life because of his inability to engage in an occupation which he had previously enjoyed.  Mr De Silva enjoyed working as a forklift driver.  He enjoyed working in the office.  His work gave him a sense of purpose and importance in an environment where, from his perspective, he had built up a reputation for reliability and trustworthiness.  For him, this is an important loss.

[16][2014] VSCA 67 at paragraph [45]

131     I agree with the submission of Mr De Silva’s counsel.  There is no disentangling process required.  I have made findings identifying the injury and the pain and suffering consequences of the injury.  I am led to the conclusion that the pain and suffering consequences relating to the impairment or loss of the body function relating to the cervical spine is “more than significant or marked” and “at least very considerable”.  The injury is a “serious injury”.   

Loss of earning capacity consequence     

132     If one looked at the condition of Mr De Silva’s neck, left knee and right shoulder and were able to aggregate the effects of the impairment or loss of each in terms of body function, then he has lost permanently all capacity for work.  However, I cannot aggregate.  In recognition of the law, Mr De Silva withdrew the left knee and right shoulder from consideration and focussed on the cervical spine.  I am concerned with the body function related to the cervical spine.  I have already described his restrictions under the heading of pain and suffering consequences.  His ability to move his neck is significantly restricted due to pain, especially flexion.  The movements entailed in flexion and rotation are important in a clerical or administrative occupation.  The restrictions recommended by Professor Bittar reinforce the vulnerability of his neck.  He should avoid sudden or repetitive neck movements.  He should not maintain his neck in a fixed position for more than a very short time.  His experience of regular, prolonged and serious headaches affects his concentration.  It is unsurprising when performing modified duties with the defendant, he could work only six hours instead of the usual ten and then was only able to do two hours’ worth of work.  That is his view, which I accept. 

133     Owing to the impairment of the body function related to the cervical spine, Mr De Silva has very little residual capacity for work.  It greatly reduces his productivity, converting a six-hour day into two hours of value.  This is due to the need for very frequent changes of posture to avoid keeping his neck in a fixed position and the pain associated with movements of his neck, the effect on his concentration through persistent pain, headache and the medicines he takes for pain relief.  For about two years, the defendant provided him with modified duties and then ceased to do so.  I do not know whether these duties were set out in a formal return to work plan but since they continued for so long, it does not matter.  It is unnecessary for me to consider whether the defendant, in withdrawing those duties, considered him unsuited to them for, in truth, he was unsuited because of his lack of productivity during a 24-hour week. 

134     The impairment or loss of the body function relating to the cervical spine eliminates Mr De Silva’s capacity to return to his pre-injury duties.  Overwhelmingly, the medical evidence supports that proposition.  The question is what is left of his capacity for work because of this impairment or loss.  Professor Bittar speaks of no realistic work capacity based on the factors which I must consider.  To that extent, it is unhelpful.  Dr Middleton approaches the issue in a somewhat similar manner.  However, Dr Middleton, given his speciality, placed greater concentration on the physical capacity resulting from the neck injury.  Mr De Silva is now limited to sedentary, non-manual activities.  They must be performed in a self-paced manner.  He must have breaks whenever he needs them.  He must be able to change his posture frequently.  The use of his right upper limb was restricted with activities above and below certain heights and the amount of force he could exert and weight he could lift.  If he did return to work, it would need to start at two or three hours a day on two or three non-consecutive days a week.  Expressing wariness about a return to work, Dr Middleton commented:[17]

“… These hours will need to be monitored carefully by his treating doctors and adjusted in accordance with ensuring to that symptoms and pain remain manageable and does not impinge on his non-work time.” 

[17]Report dated 3 March 2020 at page 32 

135     I accept Dr Middleton’s opinions.  Apart from his expertise to express them, he arrived at the correct diagnosis of the cervical spine injury, placing him in a separate category to Dr Barton.  His assessment of capacity accords with other evidence pointing to very little relating to the cervical spine.  Mr De Silva might be at work for 24 hours in a week but his inefficiency would mean he is ineffectual for two-thirds of that time.  One can indulge the theoretical exercise undertaken by Mr De Silva’s Senior Counsel, based on a 24-hour week, but, in truth, he has a loss of earning capacity which will be productive of financial loss of 40 per centum or more and this is permanent.

136     For a loss of earning capacity consequence to be “serious”, I must consider two things[18]. First, the loss of earning capacity consequence when properly judged must be more than significant or marked and at least very considerable. Second, there must be a loss of earning capacity of 40 per centum or more and measured in the manner described in s 134AB (38) (f) of the Act. I have dealt with the second in the previous paragraph. It is clear I am satisfied as to the first because of near complete loss of his earning capacity through the impairment of the body function related to the cervical spine.

[18]See De Bono v VWA [2019] VSCA 85 at [47].

137     As I said earlier, there were three vocational assessments: one from Ms Raftopoulos and two from Ms Green.  Ms Green’s second was meant, in part, to respond to Ms Raftopoulos’ report.  In that part it did not do so, almost certainly unintentionally given the detail of her report.  Ms Raftopoulos identified three suitable occupations and Ms Green did not comment on them.  They were scheduler/appointment setter, call or centre operator and order clerk.  After reserving my decision I drew this anomaly to the attention of the parties and received a written submission from the Senior Counsel for Mr De Silva and from counsel for Woolworths Ltd. 

138     These occupations require a level of digital knowledge or literacy which Mr De Silva does not possess.  His knowledge remains very limited despite completing a course.  That is not to say he could not acquire them over time.  Each is sedentary.  The demands of each do not lend themselves to Mr De Silva’s remaining capacity for work.  As Ms Green puts it:[19]

“Mr De Silva is reliant on his physical capacity for employment.  He does not have sufficient sedentary transferable skills that would enable him to be considered for an occupation whereby he could organise his daily workload around his physical tolerances.  Due to Mr De Silva’s very steady work history and similar occupations and duties during the course of the employment makes his transferable skills very limited which would make vocational re-direction very difficult.”   

[19]Report dated 23 March 2020 at pages 13-14

139     The defendant submits each of Dr Barton, Dr Cheesman, Associate Professor Buzzard, Dr Cohen, Dr Shan and Dr Krapivensky considered Mr De Silva retained a capacity to perform his pre-injury work or suitable employment in sedentary work.  At the moment, I am considering the effect of the neck injury.  Dr Barton misdiagnosed Mr De Silva’s neck injury and mistook the consequences.  I will disregard his opinions on this issue.  Associate Professor Buzzard assessed the neck despite rejecting its link to the fall, because he considered the neck injury arose out of or in the course of his employment as a forklift driver.  He placed two physical restrictions.  Dr Cheesman examined Mr De Silva while he was still employed by the defendant.  He waited for further investigations.  Later, he commented on five jobs.  He rejected two, uncertain about one and found two suitable (ticket seller and pricing clerk or labeller).   

140     The combined effect of the recent reports of Dr Middleton and Ms Green strongly point to Mr De Silva’s unsuitability for the three occupations.  The physical restrictions imposed by his neck render him capable of limited hours of work and then performed inefficiently.             

Psychiatric injury

141     Dr Dharmage has treated Mr De Silva since 2014.  He has had the opportunity to observe him, prescribed medicines and monitored their effect.  As a treating psychiatrist, he is in the ideal position to diagnose and has diagnosed Major Depressive Disorder and Generalised Anxiety Disorder.  However, Dr Miach has also treated Mr De Silva for a long time.  She has done so on the basis of an Adjustment Disorder.  This diagnosis is shared by the medico-legal psychiatrists, Doctors Cohen, Shan and Krapivensky.  In a sense, each of these diagnoses, including those of Dr Dharmage, reflect Mr De Silva’s reaction to the pain and disability he experiences.  They are based on the same symptoms.  These symptoms are a reaction to Mr De Silva’s physical condition. 

Pain and suffering consequence of psychiatric injury   

142 Where paragraph (c) of the definition of “serious injury” is concerned, the adjective “severe” is used. Section 134(38)(d) of the Act requires the relevant consequence to be fairly described as being more than serious to the extent of being severe. In the previous paragraph “serious” must itself be fairly described as being more than significant or marked and as being at least very considerable. “Severe” poses a very stern test.

143     Whether I accept the disorders diagnosed by Dr Dharmage or the disorder diagnosed by Dr Miach and the medico-legal specialists, the symptoms underlying the diagnoses are important.  The symptoms described by Doctors Dharmage and Miach are very significant.  On 23 January 2020, they were:[20]

“… he reported that his mood has been very low and [he has been] unable to enjoy anything in his life.  He can sleep only [a] few hours at night.  He has lost his appetite.  Ricardo has difficulties in concentration and has a poor short term memory.  Although he has low energy levels his motivation has improved.  Ricardo denied experiencing suicidal ideation.  Ricardo reported that there is no improvement of his anxiety symptoms.  He has been experiencing heightened anxiety associated with worrying over minor issues, feeling as [if] he is living on edge most of the time, irritable and experiencing muscle tension.  Ricardo told me that he has been experiencing regular panic attacks at least once in [a] fortnight.  He denied experiencing psychotic symptoms.”   

[20]Report dated 23 January 2020 at pages 4-5

144     In her last report, Dr Miach spoke of further exacerbation of his disorder, increasing feelings of inadequacy, continued thinking about loss of social contacts through loss of employment, accompanied by anger and depressed mood, continuing decline in his self-esteem and an angry sense of helplessness.  These symptoms amount to a severely affected person. 

145     The need for treatment has covered six years and will need to do so into the foreseeable future.  There has been little progress despite regular treatment from him and Dr Miach.  They have largely maintained a status quo.  The disorders are a reaction to the pain and disability suffered from the fall, to the loss of employment and how he sees himself.  The prognosis for his physical condition is poor, especially for his cervical spine.  The prognosis for his mental state is also poor.  For his own wellbeing, Mr De Silva requires continued psychological and psychiatric treatment. 

146     I consider Doctors Dharmage and Miach are in a far better position than the medico-legal psychiatrists to ascertain Mr De Silva’s symptoms and their significance through his presentation to them over many years.  Equally, they are better positioned to speak about the future.  I accept their opinions in preference to the others.    

147     Mr De Silva may think about suicide occasionally; he goes no further than just thought.  This is unsurprising.  He is surrounded by a supportive family.  One of his children has gone to work to help the family financially rather than study.  Obviously, suicide is the most serious consequence of a mental disorder.  Genuine attempts are not far behind.  Thinking about suicide is a significant consequence.  It remains so even though he says there is no worked out plan. 

148     I found Mr De Silva’s evidence about the sale of his home unsettling.  It had been the family home for eighteen years.  It was sold because he believed he could no longer work and pay the mortgage.  It was an unfortunate decision, for the rent they now pay is as much as the mortgage payments.  It was a product of the impact of his depression and anxiety affecting his judgment.    

149     I consider Mr De Silva has suffered a mental injury arising out of or in the course of his employment with Woolworths Group Limited.  It is a “serious injury”, in that its pain and suffering consequence is, when judged by comparison with other cases in the range of possible mental disorders, fairly described as being more than serious to the extent of being severe. 

Loss of earning capacity consequence: mental injury  

150     As I said earlier, in his report dated 23 January 2020, Dr Dharmage did not directly answer a question of his view as to Mr De Silva’s capacity for work.  The question enquired after both work and leisure activities.  Dr Dharmage’s answer, coupled with the results of the mental state examination that day, paint a depressing psychological picture of Mr De Silva.  In a report, dated 25 October 2018, and addressed to Centrelink, Dr Dharmage said there was no capacity for employment due to his psychiatric illness and physical disability where his psychological state is reactive to his physical state.  His psychological condition does not create its own physical consequences except muscle tension.  As the defendant’s counsel submitted, Dr Dharmage does not separate the psychiatric from the physical.  Nor, in fact, does Dr Miach.  In the passage I quoted earlier:

“He had hoped for some form of modified employment from his former employer to accommodate his disability.  I am not aware of any barriers other than his injury and medical condition to undertake employment.  Based on his Psychological condition, he would be permanently unable to return to work which did not accommodate his disability.” 

151     If he obtained employment which he could perform, then he could manage it psychologically.  This is a tenuous basis upon which to find the loss of earning capacity consequence is “severe”.  I would reject this aspect of the claim. 

Conclusion

152     I will grant Mr De Silva leave to start a proceeding for the recovery of damages for pain and suffering and pecuniary loss.

- - -