El-Sayed v Polivac International Pty Ltd and VWA

No judgment structure available for this case.

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

AT MELBOURNE

CIVIL DIVISION

Case No. CI-08-04501

GEORGE ABD EL-SAYED	Plaintiff
v
POLIVAC INTERNATIONAL PTY LTD	First Defendant
and
VICTORIAN WORKCOVER AUTHORITY	Second Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	11 and 12 June 2009
DATE OF JUDGMENT:	24 June 2009
CASE MAY BE CITED AS:	El-Sayed v Polivac International Pty Ltd & VWA
MEDIUM NEUTRAL CITATION:	[2009] VCC 0818

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the lumbar spine – psychiatric impairment – abnormal illness behaviour – pain and suffering – loss of earning capacity – causation – Grech v Orica Pty Ltd (2006) 14 VR 602.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Gorton QC with	Arnold Thomas & Becker
Mr R Stanley
For the Defendants	Mr P Elliott QC with	Hall & Wilcox
Ms M Britbart
HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the first defendant on 15 July 2003 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s.134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of serious injury to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning “a permanent serious impairment or loss of a body function”.
4 The plaintiff also brings this application pursuant to clause (c), claiming a permanent severe mental or permanent severe behavioural disorder.
5 The body functions relied upon in the case are the lower back and psychiatric impairment.

Outline of s.134AB
(i)       Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;
(ii)      The impairment of the body function must be permanent;
(iii)    The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity;
(iv) By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable”, and “more than significant” or “marked”;
(v)      I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders;
(vi)     Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;
(vii)    Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(viii)  Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
(ix)     Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(x)      I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica Pty Ltd (2006) 14 VR 602 in reaching my conclusions.

6 The plaintiff relied on two affidavits and was cross examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.

The Plaintiff’s Evidence
7          The plaintiff is presently aged fifty one, having been born on 5 March 1958 in Egypt. He completed his schooling in Egypt and qualified as a mechanic. He ran his own business doing mechanical repairs on household appliances.
8          In 1998, the plaintiff came to Australia sponsored by his cousin, Tony Antonius (“Antonius”), a director of the first defendant company.
9          Whilst in Egypt, the plaintiff was brought up as a Coptic Christian. His father died when he was aged twelve and he was brought up by his uncle, Antonius’ father. Antonius is approximately six or seven years older than the plaintiff. When he and the plaintiff were young and living together, Antonius used to punish the plaintiff by sexually abusing him (“the sexual abuse”) amongst other things.
10        The plaintiff deposed he had a “very strange relationship” with Antonius. In cross examination, the plaintiff explained that he went to live with his uncle so that he could pursue his studies but instead he did not study as Antonius’ desire to have sex with him stopped him going to school. Given this history, and the fact that Antonius was very abusive to the plaintiff, the plaintiff believes it may be true, as psychologists have suggested, that he has a dependency on Antonius.
11        The plaintiff is married with three children, the youngest aged twelve. His wife does not work and has not done so since they came to Australia.
12        Antonius sponsored the plaintiff’s move to Australia. The plaintiff obtained a four year working visa with an expiry date of 6 April 2003, enabling him to work for Antonius only.
13        The plaintiff worked with the first defendant from 1998 to December 2000 as a vacuum assembler on a regular basis. His employment with the first defendant was terminated between December 2000 and March 2002.
14        During that time, the plaintiff remained on the first defendant’s books as a full time employee. He was paid as such, but the plaintiff had to repay amounts in excess of what he was actually earning.
15        The first defendant’s books indicated the plaintiff was paid $20 per hour but in fact he was only paid $14.15 per hour. The plaintiff does not have any records to confirm the accuracy or otherwise of the amount he earned whilst employed by the first defendant. As at the said date, the plaintiff was working two half days or one full day a week and earning about $120 to $130 clear.
16        Throughout 2000 to 2003, the plaintiff also worked at La Porchetta restaurants as a pizza cook – such employment not being permitted by his visa.
17        In March 2002, the plaintiff was involved in a motorbike accident (“the motorbike accident’) where he suffered a significant injury to his right thumb, which required surgery.
18        The plaintiff deposed he also suffered very minor injuries to his lower back and leg and recovered from them very quickly. In cross examination, the plaintiff denied he had severe back pain following that accident and said his back pain was very minor. He explained that he had a CT scan of his back because he was told to do so. He admitted that he had treatment for his right leg following the motorbike accident but he did not answer clearly whether in fact he also had treatment for his back.
19        The plaintiff agreed that in August 2002 he could not do much activity. He could use an exercise bike for ten minutes and would then get bored, tired or experienced pain and then he stopped.
20        The plaintiff deposed he was off work for about six months because of his thumb injury, and in late 2002 he returned to work with the first defendant. He continued to be paid full wages and he was then required to repay the first defendant the amounts he had not actually earned.
21        In cross examination, initially the plaintiff said his relationship with Antonius in Australia was normal before the said date. He was not arguing with Antonius about money and there were no problems at all. It was only after that time that they had disputes about money.
22        The plaintiff later admitted, when cross examined as to histories given by him to a number of doctors, that this was not in fact the case. Antonius was renting a substandard house to the plaintiff and charging him high rent. He also bought expensive furniture for the plaintiff which the plaintiff had to pay for out of his wages. Further, Antonius had the plaintiff’s visa cancelled by sacking him in 2000.
23        The first defendant re employed the plaintiff in November 2002 on a lesser wage. Between November 2003 and April 2003, the plaintiff was given irregular work by the first defendant. From April 2003 to mid July 2003, the plaintiff was given regular part time work by the first defendant and he also went to English school sponsored by the first defendant. In mid June 2003, the plaintiff was again told to leave the first defendant and to find other work. Two weeks later he was invited back to work with the first defendant.
24        The plaintiff brought unfair dismissal applications in relation to these terminations in late 2003. Both applications were unsuccessful.
25        Further, on the said date, a few hours before the plaintiff suffered injury, Antonius had refused to give the plaintiff money for his children’s school expenses. The plaintiff could recall telling Dr Glasser that he was upset by Antonius’ conduct and that he had a “bad psyche” as a result.
26        Also, the plaintiff admitted that after April 2003, when his visa expired, he was having disputes with Antonius. Antonius was treating him very badly and that caused the plaintiff a great deal of concern. One of the problems was that Antonius was not paying him much money. Further, Antonius humiliated the plaintiff in front of other workers; he swore at him and called him a homosexual.
27        On the said date, whilst working for the first defendant, the plaintiff walked behind a co-worker and tripped on a wooden pallet. As he fell, his back struck some steel on the pallet (“the incident”). He felt an immediate pain in his head with dizziness, lower back pain and numbness in his left leg.
28        The plaintiff was taken by ambulance to the Royal Melbourne Hospital where he remained an inpatient for about a month. During that time various investigations were carried out, particularly in relation to the numbness in his left leg. The whole left side of his body was numb for the first week after the incident. The plaintiff lay on his back for two weeks. He had injections in hospital and a CT scan was carried out.
29        After about a month, the plaintiff was discharged at his own request and his care was taken over by a general practitioner, Dr Malek.
30        In cross examination, the plaintiff said he was bored in the Royal Melbourne Hospital and he had financial worries as the first defendant was paying him only $120.00 per week. He was also worried about whether or not he was able to stay in Australia. Whilst in hospital, Antonius visited the plaintiff. Antonius told him that there was nothing wrong with him and that he should get out of bed. He offered to help the plaintiff with his visa but when the plaintiff was discharged Antonius offered him money to go back to Egypt instead.
31        After the incident, Antonius sued the plaintiff for some money in the Magistrates’ Court and Antonius also initially refused to give the plaintiff the papers to continue with his residency application. Antonius then lent the plaintiff money to pay legal fees associated with his residency application and the plaintiff repaid him in instalments. The plaintiff was successful in extending his visa for four years and he became an Australian citizen in March 2009.
32        The plaintiff was scared to return to Egypt for fear of persecution on religious grounds. The plaintiff, having had an affair with a Muslim woman in Egypt, had been forced to convert to Islam. The plaintiff however, had not registered the requisite paperwork within ten years of conversion and faced death from the religious court if he returned to Egypt.
33        The plaintiff continues to receive weekly payments of $590.00 per week. At the time of the incident, he was being paid $120.00 or $130.00 clear per week for two, half days’ of work. He also worked at La Porchetta making pizzas.
34        Since the incident the plaintiff has also been treated by Dr Aboud and two general practitioners at the Bulleen Medical Centre: Dr Assad and Dr Kareem. He has received psychological counselling from Juliette Hooper since 2005, paying this treatment himself as WorkCover has refused to fund it. The plaintiff has also received treatment at the Royal Melbourne Hospital for sleep problems and he has been treated by physiotherapists.
35        The plaintiff was also treated by doctors at the Donvale Rehabilitation Hospital, especially Dr Worsam and Dr Scholes. He attended the Hospital as an outpatient for about six months, having been a patient at the Royal Talbot Rehabilitation Centre. He drove himself to Donvale and attended twice a week. The hydrotherapy and physiotherapy treatment at Donvale helped him.
36        In about October 2003, the plaintiff had a fall whilst on crutches for his back injury. He re injured his right thumb and now wears a splint on his hand. This injury affects him in all activities involving the use of his dominant right hand.
37        The plaintiff has constant mid lower back pain made worse by sitting or standing for too long. He gets left leg and pelvis pain. He has numbness and stiffness in the muscles of his left thigh all the time and at times in his right. He has swelling in his left foot and sometimes he has pain in both legs.
38        The plaintiff uses a walking stick in his right hand to walk or support himself when standing. He limps when he walks. He can walk for short distances in his home without using a stick.
39        The plaintiff deposed he put on a great deal of weight because he had been unable to exercise since the incident. He weighed around 100 kilograms at the time of injury and since then his weight had got up to 155 kilograms. The weight gain had led to the occurrence of hypertension which had previously been under control and led to significant sleep problems, such that he now has to wear an oxygen mask every night.
40        Ten months ago the plaintiff had an operation on his stomach, paid for by WorkCover, reducing his weight to about 125 kilograms at present.
41        In cross examination, the plaintiff could not recall what he weighed before the incident nor could he recall going to the Manningham Community Health Service for a dietary assessment in 2002. He then said maybe he had a weight problem before 2003.
42        The plaintiff leads a very sedentary life, using a computer and watching television. He sleeps a lot and has a special chair at home which enables him to get a bit more comfortable. He used to help with the housework but no longer does so because of back pain. He helps with a little bit of the cooking. He has both a manual and an automatic car which he is able to drive.
43        The plaintiff can do very little physical activity. He cannot have sexual relations and he is largely impotent, as a result of which his marriage has suffered considerably and, naturally, he is extremely depressed. The plaintiff sleeps downstairs apart from his wife because he cannot go up the stairs. He has to use a hand held shower head to clean himself after a bowel motion.
44        The plaintiff goes to church on the weekends. He sometimes goes shopping and occasionally visits friends. His life is boring and depressing. He also has problems with his right hand, particularly at the base of his thumb, which is considerably swollen.
45        The plaintiff takes a range of medication prescribed by Dr Assad, whom he sees at times twice weekly. Dr Assad also gives the plaintiff acupuncture treatment.
46        The plaintiff adopted a list of medication set out in the Bulleen Plaza Medical Centre notes as being the extent of his current medication.
47        The list of medication includes Avapro, Betaloc and Norvasc tablets and Metformin for hypertension. He is also being prescribed Metsal cream, Mobic capsules, a number of forms of dietary tablets, Panadeine Forte, Panadeine, Panamax, Somac and Tramadol for pain. He also is prescribed a Ventolin inhaler.
48        The plaintiff has not returned to work since the said date. Because of his very significant limitations, he does not believe there is anything he can do. He cannot work as a mechanic. He cannot stand or sit comfortably to work with his hands and cannot do fine work because of his right hand condition.
49        In cross examination, the plaintiff said he had not looked for work since the incident. He cannot get work because he cannot stand or sit for a long time. He has not discussed a return to work with his general practitioner. He has not made up his mind that he has retired. If he was fit he could go back to work. He wants to go back to work and has never mentioned that he wanted to go on the pension.
50        The plaintiff is inadequately trained in English to enable him to work in a clerical position, although he was doing a course in 2003 when he was injured.
51        The following sums represent the plaintiff’s total earnings from his work with the first defendant and at various La Porchetta pizza restaurants.

Summary of Taxation Return Documents

Financial Year Gross Income from
Ending 30 June Personal Exertion
2000   $19,452.00
2001   $22,234.00
2002   $23,241.00
2003   $33,679.00

The Plaintiff’s Medical Evidence
52        The Royal Melbourne Hospital provided a report detailing the plaintiff’s attendances at the Hospital in relation to the motorbike accident and the incident.
53        It was noted that in relation to the motorbike accident, the plaintiff sustained soft tissue damage to his cervical spine and grazes and a fracture at the base of the first metacarpal bone. An MRI and x-ray of the plaintiff’s wrist were taken and he underwent surgery at the Hospital on 21 March 2002, where a k-wire fixation was inserted in his thumb.
54        It was noted the plaintiff required admission to the Hospital following the incident between 15 July 2003 and 13 August 2003 because of musculoskeletal low back pain following the incident. The plaintiff complained of severe low back pain as well as left face, arm and leg numbness.
55        On examination at the time of his admission, the plaintiff was noted to be alert and orientated. He described persistent numbness in his left leg. Tone of the lower limbs revealed bilateral absent ankle jerks and downgoing plantars.
56        The plaintiff stated he had decreased sensation to pinprick to the entire left leg. He described decreased sensation on the left side of his face and left arm. It was noted reflexes were normal.
57        X-rays of the lumbar and cervical spine did not show any bony abnormality. A CT scan of the thoracolumbar spine showed normal alignment and no fractures. The plaintiff was found to have a moderate central canal stenosis at L4-5/L5-S1 secondary to a disc bulge. An MRI scan of the spine showed mild to moderate canal stenosis with lumbar protrusion involving L4-5 and L5-S1. There was no thecal sac impingement noted.
58        The plaintiff was seen at the Hospital by neurosurgeons who found no structural lesions. His numbness slowly improved although there were significant ongoing problems with pain. He was reviewed by psychiatry personnel who felt psychological factors may be affecting his ability to cope. His pain gradually settled and with the aid of physiotherapy his mobility improved prior to discharge.

59        The plaintiff attended on 8 June 2003 when he noted his gait was not improving. It was mentioned there was no organic cause found for his deterioration. He had no focal back tenderness and it was commented he had improved significantly.
60        On 9 February 2004, he stated that while he still had backache, left sciatica and weakness and numbness of the left leg, an MRI scan did not show any evidence of any significant focal disc protrusion. The plaintiff did not attend subsequent appointments in March 2004, May 2004 or August 2005.
61        The plaintiff attended the Hospital on 18 March 2004 because of dizziness and decreased sensation on the left side of his face that had been there for about six months. There was no evidence of facial muscle weakness. The remainder of the central nervous system examination was normal apart from a mild decrease in the left elbow and shoulder. A CT scan of the brain was normal. He had normal gait and no cerebellar signs.
62        A sleep and respiratory test conducted at the Hospital on 12 October 2006 showed a severe obstructive sleep disorder. CPAP implementation and weight loss was recommended.
63        The plaintiff was assessed by Dr Sargeant on behalf of CGU on 1 December 2003. At that stage, Dr Sargeant concluded the plaintiff was currently unfit for any form of employment and he required further rehabilitation. He noted the plaintiff weighed 140 kilograms.
64        On examination, Dr Sargeant found there was straight leg raising to forty degrees bilaterally, limited by reported back pain. There was reduced sensation to touch over the lateral aspect of the left thigh and calf, and reduced power in plantar flexion. Lumbosacral movements were restricted.
65        Dr Sargeant had available to him x-rays from the Royal Melbourne Hospital and the CT scan of 15 July 2003. In his view, the plaintiff suffered an L4- 5/L5-S1 disc prolapse with clinical evidence of an L5-S1 nerve root irritation as a result of the incident.
66        Mr Peter Battlay, orthopaedic surgeon, examined the plaintiff on behalf of CGU on 20 January 2004. The plaintiff specifically denied any back injury in the motorbike accident. He told Mr Battlay that he could not feel any part of his body after the incident.
67        The plaintiff told Mr Battlay his back was a little better but unfortunately, since the incident, his weight had increased from 135 kilograms to 143 kilograms. He described low back pain across the lumbosacral junction, mainly into the left buttock.
68        On examination, Mr Battlay noted that the plaintiff was visibly breathless. There was restriction of lumbar movement. There was no convincing localised tenderness or evidence of sciatic nerve root irritation or a lower limb neurological loss.
69        Mr Battlay noted the plaintiff gave a history consistent with him having aggravated degenerative changes in the lowest two discs. He had a canal stenosis which may have been giving rise to his symptoms. However, he had not been advised of the need for surgery at the Royal Melbourne Hospital.
70        Mr Battlay concluded the plaintiff had mechanical low back pain from aggravated disc degeneration in his lower spine, to which employment was a contributing factor. He thought the plaintiff was totally incapacitated.
71        Ms Lyn Bender, psychologist, examined the plaintiff on 25 February 2004 with the assistance of an interpreter.
72        The plaintiff told her of the sexual abuse and also about financial problems with Antonius relating to the plaintiff’s wages. Ms Bender noted the plaintiff was very stressed and distressed, expressing a keen desire to stay in Australia. In her view, the plaintiff’s stress symptoms included anxiety, diabetes and high blood pressure, and he had mobility problems and physical problems from the incident. She thought it would be desirable if he had counselling about the sexual abuse.
73        The plaintiff relied on the opinion of Dr Davison relating to his first examination of the plaintiff on 29 March 2004. At that time Dr Davison experienced significant communication difficulties with the plaintiff although an interpreter was present. Further, he noted that the examination was extremely limited because of the plaintiff’s inability to walk independently.
74        Dr Davison reported that the plaintiff exhibited marked pain behaviours whilst undressing. He could not evaluate the plaintiff’s range of movement of the lumbosacral spine. He noted, however, the plaintiff was able to sit on the side of the couch. He could not sit with his legs fully extended and reach forwards. Straight leg raising was unrestricted on the right and was limited to zero degrees on the left. There was no evidence of muscle weakness. There was a subjective alteration in sensation involving the whole of the left lower limb in a stocking distribution. No investigations were available.
75        Dr Davison noted, by reading the various reports, that it was possible the plaintiff was suffering from symptoms of spinal canal stenosis, described as moderate to severe on CT scanning. In his view, the restricted straight leg raising on the left raised the possibility of a left S1 nerve root irritation.
76        He considered the cause of the plaintiff’s spinal canal stenosis was likely to be multi factorial as it is usually a combination of facet joint hypertrophy, ligamentum flavum hypertrophy and intervertebral disc bulging. He noted that the presence of a stocking distribution type sensory disturbance in the left lower limb was non anatomical.
77        Dr Davison was puzzled by the plaintiff spending so much time in hospital and noted there appeared to be a suggestion there was some functional overlay. In his view, certainly a lower back injury could not result in hemiplegia. Nonetheless, he thought it reasonable to accept that employment had and continued to materially contribute to the plaintiff’s incapacity.
78        Dr Davison noted psychosocial factors were also impacting upon the plaintiff’s presentation with issues including pain behaviours, non organic sensory disturbance in the left lower limb, together with his morbid obesity. He noted family relationship difficulties may well be interacting also.
79        Dr Davison considered the plaintiff may well require surgery to alleviate the spinal canal stenosis. He suggested the plaintiff needed to be referred to a dietician and also to a psychiatrist to deal with underlying psychosocial issues involving his daughter, his visa and the conflict with his employer.
80        In his view, the plaintiff presented as a genuine historian and there was no deliberate effort to exaggerate his symptoms. The plaintiff was clearly distressed by his injuries and he was in urgent need of psychological counselling and treatment.
81        In 2005, the plaintiff was referred by his doctor to Ms Hooper for psychological treatment following the development of a depressive state subsequent to an injury at work.
82        In her report dated 3 March 2005, Ms Hooper noted the plaintiff described the incident and the fact that he was terminated from his job several months later. He described this period as incredibly stressful as he struggled with physical symptoms and faced serious financial and other difficulties.
83        Ms Hooper noted the plaintiff had attempted to cope with the residual pain and stiffness but increasing medical and psychological difficulties had conspired to reduce his ability considerably.
84        She noted the plaintiff had developed depression and anxiety symptoms related to the injuries and the following events. The loss of his job and, in particular, the way he was treated by the first defendant devastated him and he reported being unhappy, intolerant, moody, forgetful and withdrawn.
85        The plaintiff told Ms Hooper that prior to the incident he did much of the work in maintaining the home, as well as enjoying gardening. He was previously sociable but had now lost many of his friends and social contacts.
86        His situation was made worse by financial difficulties because he could not work. He was struggling to come to terms with his current condition and change in lifestyle. In addition, Ms Hooper noted the plaintiff had put on a significant amount of weight.
87        Ms Hooper diagnosed a major depressive episode of a severe nature without psychotic features, chronic pain disability of a moderate level, sleep difficulty and frustration and anxiety problems. In her view, generally the plaintiff’s psychological state was quite poor and he suffered from chronic pain difficulties of a moderate level.
88        She thought his psychological condition had yet to stabilise and he would require psychotherapy for at least eight to twelve months. In her opinion, the plaintiff’s psychological difficulties appeared to relate to his response to the incident.
89        She considered that at that time the plaintiff’s ability to return to his pre injury work, given the ongoing pain, restriction in mobility, poor concentration and lowered mood, was unlikely. She thought it might take up to eight months for his psychological condition to stabilise provided there are no further serious setbacks. She noted the risk of further deterioration was present given the multiple issues present.
90        The plaintiff was treated by Dr Malek at the Box Hill Medical Centre in 2004 and during 2005. His brief reports merely recite details of various referrals made by him, including a referral to a Dr Asopa and the fact that the plaintiff was prescribed Zoloft for depression. He also noted that the plaintiff was attending regular physiotherapy with Miss Ming which was helping.
91        In June 2005, Dr Aboud certified the plaintiff was suffering from lower back pain which was disabling him after the incident and was complicated by depression, hypertension and morbid obesity. He thought the plaintiff was completely incapacitated and not expected to engage in any gainful employment. He thought the plaintiff was in need of special consideration for his condition and that it was very difficult for him to be able to tolerate long travel to Egypt.
92        Dr David Fish, consultant occupational physician, examined the plaintiff for CGU for the purpose of an AMA assessment on 5 December 2006.
93        On examination, the plaintiff complained of low back pain radiating to the left lateral thigh and his left leg felt generally weak. Examination of the lumbar spine revealed unsteady gait. There was low lumbar tenderness and grossly restricted spinal motion in all directions.
94        Neurological assessment of the lower extremity revealed normal reflexes with give way weakness in the right leg and decreased sensation in the distribution of the lateral cutaneous nerve of the left thigh.
95        In Dr Fish’s view, the plaintiff suffered an aggravation of pre existing lumbar disc degeneration with referred pain to the left leg but without clinical evidence of radiculopathy. In addition, he had developed a right lateral cutaneous nerve thigh lesion commonly known as meralgia paresthetica attributable to his back injury.
96        The plaintiff was examined by Mr Russell Miller, orthopaedic surgeon, on 27 April 2009.
97        At the time of that examination, the plaintiff complained of low back pain and discomfort with pain radiating mainly into his left leg. There was numbness and tingling in the left leg. The plaintiff also had problems with anxiety and depression which required separate assessment.
98        Examination of the lumbar spine revealed loss of normal lumbar lordosis. There was diffuse lumbar tenderness and lower lumbar muscle spasm and restriction of movement. Straight leg raising caused back discomfort on the left and right at fifty degrees and there was no neurological deficit.
99        Mr Miller had available to him a report of x-rays of the lumbar and cervical spine dated 22 August 2005 and a CT scan and MRI scan of the thoracolumbar spine.
100       In Mr Miller’s view, the plaintiff had had an aggravation of pre existing degenerative disease in the lumbar spine and aggravation of mild to moderate spinal canal stenosis. He noted that remained a provisional diagnosis pending review of radiological material from the Royal Melbourne Hospital. Mr Miller considered the plaintiff would not be assisted by operative intervention and he believed the long term prognosis was fair/poor.
101       On the information available to him, the development of lumbar symptoms related to the effects of the incident. There were also concurrent medical problems and adverse mental state reaction which required separate assessment. Mr Miller recommended psychiatric review and review by a physician in relation to medical issues.
102       In Mr Miller’s opinion, the plaintiff was not fit for pre injury work and not fit to return to work that involved repetitive bending, repetitive lifting, lifting of weights of more than 5 kilograms and he would have a requirement to shift his posture on a regular basis.
103       In Mr Miller’s view, the plaintiff suffered a physical injury which rendered him incapable of pre injury employment and he did not envisage a return to the workforce.
104       Dr Assad from the Bulleen Plaza Medical Centre reported in May 2009.
105       He noted the incident and the plaintiff’s subsequent history.
106       On examination, the date of which is unclear, he noted recently the plaintiff weighed 130 kilograms. Lumbosacral back movements were restricted in all directions. There was subjective diminished sensation over the left upper thigh and the plaintiff failed to carry out the straight leg raising test because of low back pain and excessive weight gain. Otherwise there were no other neurological deficits illustrated.
107       Dr Assad diagnosed severe morbid obesity, chronic dysfunctional low back pain due to spinal canal stenosis, aggravation of pre existing hypertension, chronic pain disorder, chronic adjustment disorder associated with anxiety, neurosis and depression, chronic pain of base of thumb and sleep apnoea.
108       In Dr Assad’s view, all these conditions were exclusively due to his work related injuries except his hypertension, which was considered an exacerbation of a pre existing condition.
109       Dr Assad thought those conditions were likely to be permanent and indefinite incapacities with future exacerbations would be expected.
110       Dr Assad noted that the weight loss programs had been tried without success, as had exercise programs and appetite suppressants, thus surgery was performed.
111       He noted the plaintiff was taking Avapro and Betalocs, and Norvasc for his hypertension. He was on Zoloft and regular counselling for his psychological disorders. He was also on painkillers, such as Panadeine Forte, Panamax, Voltaren, topical Isogel and physiotherapy sessions on a fortnightly basis, as well as acupuncture treatment for his chronic low back pain.
112       The plaintiff also had to have Zantac for his gastric symptoms, and he suffered from constant constipation as a result of his painkillers.
113       In Dr Assad’s view, the plaintiff has to avoid repetitive lumbar spine bending and lifting. He would be accident prone because of his unbalanced gait and diminished right hand grip as he has to use a walking stick. This condition has restricted employability as well as denying access to use public transport.
114       The plaintiff also has to avoid severe physical exertion to avoid catastrophic blood pressure rise. His driving capability is limited to short distances with frequent breaks.
115       Dr Assad did not consider vocational assessment and retraining for job seeking assistance would be a viable option because of the plaintiff’s work restrictions and morbid obesity, bearing in mind he had been out of the workforce for five years. He thought his prognosis was extremely bad and that he would require long term physiotherapy and counselling and he was unsuitable for rehabilitation programs due to his severe physical and psychological restrictions.

The Defendants’ Medical Evidence
116       The defendants tendered a number of documents relating to the plaintiff’s motorbike accident in 2002.
117       The plaintiff was referred to Mr Robert Marshall on 2 July 2002 for a medico legal assessment in this regard.
118       The plaintiff complained to him of persistent back pain, and at that stage he was undergoing a course of physiotherapy once a week and was seeing his general practitioner, Dr Aboud.
119       Mr Marshall noted the plaintiff was hugely overweight at more than 140 kilograms. The plaintiff’s lumbar spine was a little stiff and painful. Mr Marshall could find no specific abnormality and he considered there was no neurological muscular or joint deficit to be detected. As a result of his thumb injury, Mr Marshall thought the plaintiff was perhaps sixty per cent capable of returning to pre accident duties.
120       Various extracts from the Royal Melbourne Hospital file relating to the plaintiff’s attendance following the motorbike accident were tendered. On 9 April 2002, it was noted the plaintiff had undergone a CT scan. He was to be referred to an orthopaedic surgeon for disc bulging and right thigh numbness.
121       On 21 June 2002, it was noted the plaintiff had a fall whilst shopping the previous day and fell onto his right side. He had ongoing lower back pain and at that stage weighed 140 kilograms.
122       The plaintiff attended Manningham Community Health Service on 5 August 2002 for dietary assessment and management. At that time, it was noted he weighed 138 kilograms.
123       The Royal Melbourne Hospital file relating to the admission on the said date noted complaint by the plaintiff of global left leg numbness and severe back pain. He would not move due to pain and he was difficult to assess.
124       On the clinical progress sheet on 17 July 2003, abnormal illness behaviour and reported financial stress was noted. Reference was also made to abnormal illness behaviour on the post acute referral form related to a home visit on 7 August 2003.
125       A consultation sheet from the Psychiatry Department dated 22 July 2003 set out that overall psychological factors appeared to have a significant role in the plaintiff’s symptoms. Of most concern was the role of chronic pain. It was noted there was no organic cause for the numbness.
126       The assessment summary dated 29 July 2003 noted inconsistent signs on examination and the Registrar believed the plaintiff should be discharged home. It was noted in a physiotherapy report of 7 August 2003 that there was no organic cause found for the plaintiff’s low back pain.
127       On 28 April 2004, Mr Peter Turner, orthopaedic surgeon, at the Royal Melbourne Hospital reported to Dr Mervat that he believed that the majority of the plaintiff’s symptoms emanated from the muscles in his lower back. He thought there may be some general nerve root irritability, but in the absence of any specific nerve root compression, he did not believe any form of surgery would be all that helpful. He noted he endeavoured to reassure the plaintiff there was no evidence of any major structural damage and the only treatment to his spine he suggested would be participation in a rehabilitation plan.
128       Neurology Registrar, Dr Seneviratne, reported to Dr Malek on 3 May 2004 following review of the plaintiff in the Outpatients Department that day. He noted the recent MRI scan showed no significant abnormalities to explain the plaintiff’s symptoms. He planned to arrange further testing of the plaintiff’s lower limbs in two months’ time but he thought it was doubtful aetiology for his neurological symptoms would be found.

129 Dr Worsam, consultant physician, saw the plaintiff at the Donvale Rehabilitation Hospital on 1 October 2003.
130       The plaintiff told him that he had sustained low spinal damage with back pain and numbness in his right knee in the motorbike accident. It took the plaintiff seven months to get back to work and he claimed no further problems with his back until the incident.
131       At the time of examination, the plaintiff could walk with two forearm crutches for only five to ten minutes. He had low back pain, pain in the left lateral thigh and upper calf with constant numbness over the same distribution.
132       Dr Worsam noted he had written to the Royal Melbourne Hospital requesting reports. He could not explain the left hemihypoesthesia on physical grounds, nor the left arm weakness. He thought it was possible the plaintiff had significant disc damage with at least nerve root irritation to explain his back and left leg problems.
133       The Neurology Registrar at the Royal Melbourne Hospital, Dr Yerra, saw the plaintiff as an outpatient on 20 September 2004. At that time the plaintiff reported his left lower limb symptoms had more or less disappeared in the last few months but he continued to be troubled by back pain. Dr Yerra noted that the plaintiff had been discharged from the clinic and that the improvement in his left lower limb symptoms was reassuring.
134       The plaintiff was admitted to the Austin Hospital following a car accident on 22 October 2004 (“the car accident”). The records of the Hospital indicate that there was a provisional diagnosis of back pain following the car accident and that no tenderness was noted on examination.
135       Dr Malek provided two letters, dated 7 June 2004 and 25 January 2005, to assist the plaintiff in his application for permanent residency. Dr Malek advised that the plaintiff was a very hard worker and that he would be ready to start any job in the next three months.
136       Mr John O’Brien, orthopaedic surgeon, examined the plaintiff on 20 April 2004. The plaintiff told Mr O’Brien of the incident and his subsequent treatment.
137       The plaintiff complained to Mr O’Brien of lower back pain which he indicated was intermittent, not present when lying down. The plaintiff was virtually unable to walk without the aid of crutches and indicated he was aware of persistent pins and needles and numbness over the lateral aspect of the thigh.
138       The plaintiff told Mr O’Brien that, as a result of the motorbike accident, he sustained a back injury. The plaintiff reported significant pain after that accident, however, he stated that pain did, in fact, resolve. He was off work for a number of months but then returned to work with no symptoms.
139       On examination, Mr O’Brien noted the plaintiff weighed 141 kilograms, 20 kilograms more than the plaintiff said he weighed before the incident. There was some limitation of lumbar movement and there was some reaction to palpation in the lumbar region. Passive straight leg raising was approximately sixty degrees and the plaintiff was capable of active straight leg raising. He could not perform an active sit up, predominantly due to his pain, but nevertheless he was able to sit erect on the couch with good lumbar flexion and full straight leg raising.
140       Mr O’Brien noted that the reflexes and power in the left leg did, in fact, appear intact, with the plaintiff describing very definite alteration to light touch over the lateral aspect of the left thigh, in addition to suggesting there was some mild sensory change over the entire remainder of the left leg.
141       Mr O’Brien commented that the plaintiff’s signs were now quite subjective and do not clearly explain the apparent severity of pain caused by weight bearing on the left leg. He considered the severe pain described by the plaintiff could not really be reproduced during the course of examination, and certainly he was unable to make a diagnosis on clinical grounds. Mr O’Brien had no investigations available to him.
142       In Mr O’Brien’s view, the history obviously suggested a work related injury and he considered the plaintiff’s employment a contributing factor to his current clinical presentation.
143       Mr O’Brien was unable to clearly define on a clinical basis why the gait or abnormality persisted. He noted the plaintiff certainly presented significantly disabled and he had no doubt his general activities were grossly restricted. He considered the plaintiff certainly incapable of any form of employment until there was a substantial improvement in his clinical situation which required involvement in an intensive rehabilitation program.
144       Dr Davison re examined the plaintiff on 29 May 2007. At that time, the plaintiff presented with a walking stick held in his right hand. He told Dr Davison his lower back was, in fact, just a little bit better, but his left leg pain however, was not much better, while the sensory deficit in the left lower limb remained unchanged.
145       The examination mainly related to the plaintiff’s right upper limb. Further, Dr Davison noted the issue at hand was whether or not the plaintiff’s employment had contributed to his obesity. He noted the plaintiff was significantly obese at the time of the incident, weighing with a body mass index of forty per cent, already in the morbidly obese range.
146       Dr Davison rejected the weight gain was due to the plaintiff being inactive. He put an alternate view and stated categorically that it was excessive caloric intake that had resulted in the plaintiff’s worsening obesity rather than inactivity. In his view, it was highly probable that the plaintiff’s emotional state was a major reason for his increased intake.
147       In Dr Davison’s view, the plaintiff was unlikely to tolerate a return to the workforce but he thought the plaintiff’s incapacity was not related to his employment.
148       Mr Nye, neurosurgeon, first examined the plaintiff on 4 November 2004.
149       In addition to a history of the incident, Mr Nye also noted the plaintiff was involved in the car accident on 23 October 2004, after which he was hospitalised at the Austin Hospital overnight. With respect to that experience, the plaintiff claimed an increase in back pain.
150       On examination, the plaintiff presented using two elbow crutches. There was a modest restriction of thoracolumbar movement. Neurological examination revealed brisk reflexes in the lower limb and there was claimed impairment of pinprick appreciation affecting the whole of the left side of the body. In Mr Nye’s view, the distribution was clearly not anatomical and considered a functional manifestation.
151       Mr Nye concluded that in the incident there was a possible aggravation of pre existing degenerative change in the lumbar spine; that is, lumbar canal stenosis secondary to spondylosis. There may also have been some aggravation of the pre existing thumb injury.
152       Mr Nye noted the situation was further complicated by the plaintiff’s recent involvement in the car accident.
153       Mr Nye noted it was clear the plaintiff presented with a number of features which were functional in origin and there was no evidence of any neurological condition which would require the use of walking aids. Under these circumstances, he strongly suspected the plaintiff was injury and pain focussed and there were elements of abnormal illness behaviour and the adoption of a chronic invalid role.
154       Taking these factors into account, Mr Nye predicted any rehabilitation process would be prolonged and complex and protracted litigation would also be associated.
155       As of the 2004 examination, Mr Nye considered that the plaintiff had suffered a fall with temporary aggravation of a pre existing degenerative condition affecting his lumbar spine which, under ordinary circumstances, would be associated with natural recovery.
156       He thought at that time the plaintiff was incapacitated and could not resume any form of employment and the prognosis was poor as a consequence of non organic aspects of presentation.
157       On re-examination on 15 October 2008, the plaintiff reported a worsening of symptoms with increasing pain levels, particularly in the low back, neck and right thumb.
158       Mr Nye noted some pain behaviour was exhibited. The plaintiff held a walking stick in his left hand and no actual limp was identified. The plaintiff claimed generalised restriction of both cervical and lumbar movements. However, Mr Nye noted that, in relation to the lumbar spine, the plaintiff was able to sit on the edge of the examination couch with hips and knees flexed and could stand on his toes and heels.
159       The neurological examination of the upper limbs did not reveal any muscle wasting and no sensory loss was detected. There was a non-anatomical subjective impairment of pinprick appreciation affecting the left leg, patchy in distribution and more dense distally.
160       Mr Nye did not have available any investigations relating to the lumbar spine.
161       Mr Nye came to similar conclusions to those previously drawn with respect to the work related injury with possible aggravation of a pre existing lumbar degenerative disease. He thought it was clear the plaintiff suffered from a number of other conditions, including his right thumb.
162       Mr Nye considered the plaintiff had degenerative disease in his cervical spine, which he did not consider was work related and he acknowledged the possibility of association of that with the car accident. The plaintiff also suffered from comorbidities, including obesity, hypertension and, in all probability, sleep apnoea.
163       Mr Nye was not convinced of any loss of body function resulting from the incident; aggravation of lumbar degenerative disc disease with temporary consequences was and is acknowledged. He remained of the opinion natural recovery would be expected.
164       Mr Nye did not consider the plaintiff incapacitated as a result of the incident. A partial incapacity, in his view, would be attributed to the suspected lumbar disc degeneration with restrictions required in any work related situation. For a number of reasons, he thought the plaintiff was a poor candidate for suitable employment and regarded the prognosis as extremely poor and related to comorbidities and a suspected psychological condition, namely, depression.
165       Dr Silver, occupational physician, examined the plaintiff on 29 October 2005. The plaintiff complained to him of intermittent back pain brought on by prolonged standing, walking and sitting. He said he did not have pain anywhere else but in his back.
166       The plaintiff walked into the examination room carrying two walking sticks, although he did have a limp favouring his left lower limb. On examination, there was no guarding, spasm or tightness of paraspinal muscles. There were markedly limited active movements of the lumbar spine. The tone and reflexes were normal in the lower limb but sensation was said to be reduced in the true lateral aspect of the left thigh. Straight leg raising produced complaints of low back pain at approximately forty degrees on each side, but the plaintiff allowed full passive knee extension of both knees when sitting on the examination couch which indicated, of course, a ninety degree range of straight leg raising.
167       Dr Silver considered, save for the right thumb, there was no other significant pathology. He thought the plaintiff may well have some degree of non specific low back pain but his pain was a manifestation of a non organically based functional somatic syndrome that was significantly conscious, if not contrived.
168       In Dr Silver’s view, it was apparent there was a significant psychological overlay from the moment of the incident and he suspected that that was responsible for the plaintiff’s four weeks in hospital. The situation in the interim, however, had moved on from what may well have been a subconscious overlay to one that was now significantly conscious, if not contrived.
169       Dr Silver considered the plaintiff partially disabled by his morbid obesity and significant lack of physical fitness, but only minimally so by minor degenerative disease of the lumbar spine.
170       Dr Silver considered the plaintiff an unreliable and inconsistent historian when asked about his current capability. He considered the plaintiff physically capable of returning to light work of a semi sedentary nature.
171       Dr Stevenson, consultant physician, examined the plaintiff on 29 September 2008. The plaintiff’s main problem at that time was back and neck pain, and on various occasions he had to use crutches. There was still a problem with his left leg.
172       On examination, the plaintiff indicated fairly diffuse discomfort, mostly in the lower lumbar region. He managed fifty degrees of forward flexion and had minor restrictions of right and left rotation, again with fair effort. The plaintiff indicated numbness over the lateral aspect of the left thigh which Dr Stevenson felt seemed to fit a lateral cutaneous nerve of thigh distribution and probably it was an entrapment due to the plaintiff’s obesity. Straight leg raising was restricted to fifty degrees bilaterally when recumbent, improving to ninety degrees when he was seated. Reflexes and power in the lower limb seemed intact.
173       Dr Stevenson noted that the plaintiff was hospitalised at Royal Melbourne Hospital for one month with apparently pseudo-neurological hemiparesis – numbness of half of the body. He noted the very disturbed background with Antonius. He thought the plaintiff was a morbidly obese man with moderate restriction of spinal movement and probable left meralgia paresthetica.
174       Dr Stevenson noted the plaintiff was not using walking aids on examination. In his view, the plaintiff appeared to have had soft tissue injuries in the incident and obviously a degree of emotional distress and fright. There was no evidence the plaintiff had any structural injury to the discs of his back. The loss of sensation in the entire leg and down the left side was not explained on any neurological basis and, in his view, suggested a pseudo neurological emotional based illness. He noted the plaintiff appeared to have a lateral cutaneous nerve of the left thigh entrapment in the inguinal ligament, which was very common in the obese, and may have contributed to the misperception of some neurological injury to his leg.
175       Dr Stevenson considered there were clearly complex psychosocial factors relating to the earlier sexual assault. He noted it was impossible to assess the rights and wrongs at this distance, but the plaintiff was obviously distressed, which was strongly associated with medically inexplicable pain. In his view, there was, therefore, no chronic pathology. The injury was a soft tissue one and fright to which there had been an emotional overreaction.
176       Dr Stevenson considered the plaintiff’s prognosis was determined by complex psychosocial factors. There was anxiety and depression which was not accounted for simply by soft tissue injury five years ago. There seemed to be a complex relationship with Antonius. In Dr Stevenson’s view, the prognosis was also determined by the plaintiff’s morbid obesity but, he noted in general, gastric banding was an extremely effective operation so he considered the plaintiff was likely to lose weight and, in fact, lose his sleep apnoea.
177       Dr Stevenson diagnosed a soft tissue injury and at an earlier stage some pseudo-neurological features which the plaintiff seemed to have now lost. In his view, incapacity reflected a mixture of psychological and unrelated constitutional factors. He considered the plaintiff still too obese to do hard physical work, but thought he would improve. In his view, the plaintiff’s suitability for suitable employment appeared questionable, but that was due to unrelated factors. Dr Stevenson noted, if the plaintiff got back to his pre injury weight and had his psychological issues addressed, there was no permanent pathology.

Investigations
178       A CT scan of the lumbosacral spine was taken on 26 March 2002. It showed the canal was congenitally narrow. There was minor, broad based disc bulging at L3-4, L4-5 and L5-S1. That indented the thecal sac anteriorally to a minor degree and at all of the above mentioned levels. There was no evidence of superimposed focal disc protrusion although, predominantly because of the underlying congenital narrowness of the canal, there was moderately significant stenosis at L4-5 and, to a slightly lesser extent, at L5- S1 and L3-4. There was no evidence of compression fracture or any other traumatic injury.
179       A CT scan of the lumbar spine taken on 15 July 2003 after the incident showed moderate to severe central type canal stenosis at L4-5 and L5-S1. It was noted that was caused largely by central broad based disc bulges, although there was some facet joint osteophytosis and hypertrophy of the ligamentum flavum at both levels.
180       Dr Fail, psychiatrist, examined the plaintiff on 26 September 2003 without the assistance of an interpreter.
181       The plaintiff told him that after the incident he was very nervous because he had no money and no work. However, he told Dr Fail he felt better now. He could walk with crutches and felt less anxious. Dr Fail obtained a three line family history, noting the plaintiff had a very happy childhood.
182       Dr Fail found the plaintiff to be suffering from an acute adjustment reaction in remission. He thought the plaintiff suffered no current work incapacity due to any psychological or psychiatric impediments.
183       Dr Jager, psychiatrist, examined the plaintiff in about October 2004.
184       The plaintiff told Dr Jager about the childhood sexual abuse, that he last felt completely well on the day of the incident and that he had had an argument with Antonius about money. The plaintiff was distressed at that time.
185       The plaintiff told Dr Jager that Antonius had sued him for $700 and he was facing $300 in legal fees. He said Antonius continued to abuse him and treat him badly and called him a “poofter”. Antonius had the plaintiff’s visa cancelled by sacking him. The plaintiff was then awaiting a response from the Immigration Minister and he told Dr Jager that Antonius had also offered him $10,000 to return to Egypt.
186       The plaintiff also told Dr Jager of domestic difficulties with his wife and children, that he had seen a psychiatrist three times, but treatment stopped because he could no longer afford to see her.
187       On mental state examination, Dr Jager noted the plaintiff was sad and tears welled up in his eyes. His thought stream was fluent, but the history developed in a disjointed manner. The plaintiff described no bizarre beliefs or abnormal sensory perceptions.
188       In Dr Jager’s view, the plaintiff had a major depressive disorder. He considered the plaintiff was not fit for full time pre injury duties and was only fit for part time duties three days per week, totalling twelve hours, due to his insomnia, loss of energy and poor concentration.
189       In Dr Jager’s view, the plaintiff had multiple non work related stressors contributing to his incapacity. He thought the plaintiff required ongoing treatment by a psychiatrist and he commenced him on the antidepressant, Sertraline.
190       Having seen the report of Mr Nye dated 4 November 2004, Dr Jager said, if one accepted Mr Nye’s opinion, then the aggravation of pre existing degeneration of the lumbar spine had ceased and there was no ongoing physical injury. If that was the case, in Dr Jager’s view, the plaintiff’s psychiatric condition now bore no relationship to his employment.

191       The plaintiff was referred to Dr Glaser, psychiatrist, on 20 September 2005. The plaintiff told him in detail of his problems with his cousin. Antonius humiliated him, provided him with an unsatisfactory house and charged him excessive rent. He made the plaintiff pay him excessive amounts for furniture and was only paying him $420.00 per week. He also deducted money from the plaintiff’s salary to pay these amounts.
192       The plaintiff told Dr Glaser that Antonius had sponsored his work visa but refused to give him the appropriate documentation to apply for its renewal. On the said day, apparently a few hours prior to the incident, Antonius had refused to give the plaintiff money for his children’s school expenses. The plaintiff recalled he had a “bad psyche” as a result.
193       Dr Glaser noted it appeared Antonius refused to give the plaintiff the appropriate documentation, even though he promised to do so. He was reluctant to pay him WorkCover payments and instead offered him $10,000 to return to Egypt.
194       The plaintiff told Dr Glaser that in 2003 Antonius sent a letter to the Immigration Department notifying them that his services were no longer needed and as a result his visa was cancelled. The plaintiff also told Dr Glaser about family difficulties with his daughters and with his wife.
195       The plaintiff attended the examination using two walking sticks. Dr Glaser noted that throughout the interview the plaintiff sat comfortably without apparently feeling the need to change posture. His affect was sombre and he did not appear to be noticeably anxious or depressed. There was no evidence of any concentration or memory difficulties.
196       Dr Glaser considered that it was unlikely the plaintiff was suffering from more than a mild degree of psychiatric impairment. In his view, the plaintiff’s complaints could be best described as those of a chronic adjustment disorder with depressed mood.
197       He did not consider the plaintiff’s current psychiatric condition was placing any major restrictions on his work capacity. He thought the plaintiff’s legal and social difficulties appeared to be the main current impediments to him returning to the workforce.
198       The plaintiff was examined by Dr Adlard, psychiatrist, on 20 December 2006.
199       The plaintiff told Dr Adlard that he was depressed and anxious by a combination of things but mainly because of his inability to do much because of his chronic back pain. He reported being especially preoccupied by the situation with his two daughters, both of whom had left home and one of whom had returned to Egypt.
200       The plaintiff told Dr Adlard that he had a happy childhood until he went to live with Antonius, during which time the sexual abuse occurred. The plaintiff told him that he still occasionally thought about the sexual abuse which made him angry and upset.
201       On a mental state examination, Dr Adlard noted that the plaintiff’s mood was mildly depressed, appropriate and well communicated, and he was not especially anxious. His thought content centred on a number of topics, primarily his chronic back pain but also the distress because of his inability to work, arguments with his wife and problems with his daughters. There were no psychotic symptoms and his cognition was grossly normal.
202       Dr Adlard referred to a Medical Panel opinion of 20 October 2005 which diagnosed an aggravation of previously well controlled hypertension. The Panel also concluded the plaintiff suffered chronic low back dysfunction resulting in a pain syndrome and a severe major depressive disorder.
203       Dr Adlard considered the plaintiff had an adjustment disorder with depressed mood which was a psychological reaction to an identified stressor, being the injury to his back, the subsequent injury to his thumb and the resulting changes to his life, including loss of job and changes to relationships at home.
204       Dr Adlard thought the symptoms were insufficient to meet the criteria of another disorder such as major depression. In his view, the disorder had resulted in some impairment in the plaintiff’s day to day life and social functioning, but in itself did not significantly impair his ability to work, such limitations being dictated by physical injuries to his lower back and thumb.
205       The plaintiff was examined by Dr Neill, psychiatrist, on 28 October 2008.
206       The plaintiff told Dr Neill that he was in hospital for a month after the incident because he was very upset by Antonius’ actions. The plaintiff’s visa was about to expire and he was in the process of applying for permanent residency, but it was stalled. He relied on Antonius to apply for an extension. Antonius initially said he would look after the plaintiff, then one night he came and said he was not going to do that after all and he was thinking of not offering him a position again.
207       The plaintiff told Dr Neill he became very upset, angry and depressed.
208       The plaintiff told Dr Neill of his emotional and sexual abuse by Antonius, which left him feeling without his personality, not comfortable psychologically, fearful and angry. He said this traumatic response lasted for a long time, but he eventually got over it.
209       The plaintiff told Dr Neill that in 1998 he and his family had to leave Egypt because there was trouble between Muslims and Christians. He sought the assistance of Antonius to move to Australia.
210       From the time the plaintiff arrived in Australia, Antonius was abusive of him and exploited him. He paid him by cheque and the plaintiff reimbursed him in cash, only paying him $400 per week. Antonius forced the plaintiff to rent a rundown house owned by him for which the plaintiff was charged excessive rent. Antonius bought furniture the plaintiff did not want and the plaintiff had to pay him back. Antonius put the plaintiff down and made fun of him in front of other workers.
211       The plaintiff told Dr Neill he was very unhappy at work from the outset. He felt very angry, feared Antonius and felt very emotionally uncomfortable.
212       After the incident, the plaintiff feared he would not be able to obtain a visa and he became emotionally uncomfortable, depressed and anxious. He also had problems at home with his seventeen year old daughter.
213       The plaintiff told Dr Neill he had put on a lot of weight and he was in pain all the time in his lower back, neck, right shoulder and right wrist. He told Dr Neill, because he was so angry and emotionally uncomfortable, Dr Malek commenced him on an antidepressant and WorkCover arranged for him to see Juliette Hooper, psychologist.
214       On examination, Dr Neill found no identified substantive anxiety or depression or psychotic features, currently, recently, or ever. Thought content was focussed on the plaintiff’s various perceived injuries, slights and injustices. Dr Neill found the plaintiff to be fully orientated and alert. Attention, concentration and memory were unimpaired on clinical interview.
215       In Dr Neill’s view, the plaintiff had a chronic adjustment disorder with mixed disturbance of mood and behaviour, including pain and sick role behaviour. He also had relational problems with several immediate and extended family members.
216       Dr Neill considered the plaintiff’s adjustment disorder pre existed the incident. He had an aggravation of a pre existing adjustment disorder as a result of his physical injury and its sequelae. She considered there were unrelated factors, being the plaintiff’s family relational problems which also contributed to his adjustment disorder.
217       She noted the plaintiff had been prescribed a low to moderate dose of a first line antidepressant for the past three to four years. She considered the benefit was not discernable and adherence was in some doubt. She thought a graduated reduction and trial of cessation was warranted, given those conditions and the absence of a major depressive illness.
218       She considered, with respect to work capacity, that the plaintiff would seem to have none, given his overall health and entrenched passivity.

Wage Details
219 There is documentation from the plaintiff’s accountant, confirming his employment as a kitchen hand with Liliby Pty Ltd (La Porchetta) from 22 July 2002, working an average of eight hours a week at $11.88 per hour.
220 La Porchetta confirmed by letter dated 20 June 2001 that the plaintiff was working twenty hours per week at $20.00 an hour at Sunbury. It was noted he had resigned on 13 December 2002 from Doncaster.

Visa and Unfair Dismissal Claims
221       The defendants tendered a number of statements relating to the plaintiff’s unfair dismissal claim and also his application for permanent residency.
222       In support of his unfair dismissal application, the plaintiff described the dates of his employment with the first defendant from 30 November 1999 until his visa was due to expire on 6 April 2003.
223       In addition to details of his employment with the first defendant which the plaintiff adopted in cross examination, the plaintiff stated that on 5 October 2003, Antonius told the plaintiff he was no longer wanted with the first defendant, and on 6 October 2003, Antonius informed the Department of Immigration that he no longer supported the plaintiff’s application for a renewal of visa.
224       The plaintiff’s first unfair dismissal application was filed on 27 October 2003 and the second on 29 December 2003. The plaintiff explained that he delayed filing those complaints because he feared retribution from Antonius who he stated had physically abused him as a child.
225       The plaintiff completed a statutory declaration on 16 August 2005 in relation to his visa application. He described his problems in Egypt, having had a relationship with a Muslim woman and being forced to convert to Islam. He noted within ten years of having converted he had not registered with the Ministry of Interior of conversion to Islam. He would therefore be seen to have committed a very serious breach of religious law, punishable by execution, hence he was very fearful of having to return to Egypt.
226       The plaintiff had been back to Egypt twice while living in Australia: the first in 1999 to collect his family; and, secondly, in 2000, to work out financial business.
227       The plaintiff’s wife confirmed the problems she and the plaintiff would have on returning to Egypt. She also described having been raped by Muslims before she was married because she was a Christian, and again after her husband had converted.

Findings
228       I find the plaintiff suffered a compensable injury in the incident.
229       It was conceded by counsel for the defendants that the plaintiff suffered a soft tissue injury to his lumbar spine that seems to be characterised as an aggravation of underlying degenerative change or is a musculoligamentous type injury.
230       Whilst I accept there was no change in the pathology between the CT scan of 2002 and the 2003 CT scan, it is the impairment not the injury with which I am concerned in this application.
231       The issue in question is whether the impairment to the plaintiff’s lumbar spine is serious at the date of the hearing.
232 S.134AB(37) defines “serious injury” as “a permanent serious impairment or loss of body function”.
233       To satisfy the test under the Act the impairment in relation to each of pain and suffering and loss of earning capacity must have consequences that when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
234       The impairment must be permanent, in that it is likely to continue into the foreseeable future.
235       The statutory test requires a judgment based on an evaluation of all the evidence.
236       The term “serious” requires the impairment and its consequences to this particular plaintiff to be viewed objectively and also judged on an external comparative basis against possible impairments not necessarily in the same category: see Humphries v Poljak [1992] 2 VR 129, at 170, and accepted by the Court of Appeal in Barlow v Hollis [2000] VSCA 26: see in particular Chernov JA at para 29.
237 S.134AB(38)(h) of the Act provides that
“the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise.”

238 Therefore psychological or psychiatric consequences of the injury must be excluded when considering an application pursuant to (a).
239 As the Court of Appeal said in Barwon Spinners & Ors v Podolak (supra), at page 664, para 117:
“… the proper identification of pain and suffering attributable to impairment which is physical, or physiological in origin, … requires that any psychological or psychiatric overlay be stripped aside. …”

240 Thus, the onus is on the plaintiff to separate the psychiatric or psychological from the physiological or organic when considering the consequences of such bodily impairment as exists.
241 It was said by Maxwell P in Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649, at 652-3, that:
“So far as the evidence allows, the court must identify and exclude from consideration, any pain and suffering consequences which cannot be shown on the balance of probabilities to have an organic or a physical basis…. Where the court is unable to disentangle the pain and suffering consequences in this way, this will ordinarily mean that the application must be refused since the court cannot be satisfied on the balance of probabilities that the organically based pain and suffering consequences satisfy the statutory criterion. …“

242 What may be viewed as a slightly different approach to this issue was taken by Ashley JA in Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167, where His Honour said, at p.19:
“A court might well be able to conclude, considering all the evidence, that on the probabilities the plaintiff has suffered a physically-based impairment which satisfies the statutory test even though identification of the precise quantum of a supervening psychological overlay has not been attempted, or is in the real world impossible.”

243 Redlich JA expressed a not dissimilar view to Ashley JA in the case of Zivolic v Hella Australia Pty Ltd [2007] VSCA 142, at p.19-20. In Redlich JA’s view, where there was evidence –
“… consistent with the plaintiff having suffered both physical and psychiatric or psychological injury, if the nature of the medical evidence permits the conclusion that the physical consequences of the injury constituted a serious injury, then, notwithstanding the requirements of s.134AB(38)(h), no disentangling or stripping away of psychological or psychiatric consequences may be required.”

244 I accept, having considered these authorities, as Judge Morrow said in Gorgiev v Healthscope Ltd (2008) VCC 1443, at para 50:
“…if one can say that the plaintiff has suffered a ‘serious injury’ on evidence other than the psychological and psychiatric consequences of the injury, then that is all that is required. The mere fact that these latter factors intrude does not mean that an otherwise sound organically based case is to be dismissed.”

245       In the present case, it was submitted by counsel for the defendants that the plaintiff could not establish that organically based pain and suffering consequences satisfy the statutory test of seriousness.
246       It was submitted that the plaintiff’s response to the incident from the outset had been out of proportion to any injury suffered. Whilst he spent a month in the Royal Melbourne Hospital which, on the face of it, looks like the plaintiff had a significant problem, the Hospital records indicate that the various practitioners involved in the plaintiff’s care could not find an organic basis to explain his profound complaints of left sided paresthesia or his many other problems.
247       The Hospital file contained entries noting abnormal illness behaviour, the significant role played by psychological factors, lack of an organic cause for the plaintiff’s complaints and inconsistent signs on examination.
248       Further, Mr Turner, orthopaedic surgeon, who saw the plaintiff at the Hospital in 2004, thought there was no evidence of any structural damage. Also that year, the Neurology Registrar at the Hospital considered it doubtful aetiology for the plaintiff’s neurological symptoms would be found.
249       Dr Worsam, who treated the plaintiff in 2003 at Donvale Rehabilitation Hospital, could not explain the left hemihypoesthesia or left arm weakness on physical grounds.
250       Following neurological examination in 2004, Mr Nye found the distribution not anatomical and considered a functional manifestation. He thought there was no neurological condition and some pain behaviour when he re examined the plaintiff in 2008 and he considered natural recovery would be expected.
251       Dr Stevenson found no evidence of any structural injury to the discs. In his view, the loss of sensation in left leg could not be explained on any neurological basis and suggested to him a pseudo neurological emotional based injury.
252       Dr Silver went a step further than these examiners, finding the plaintiff’s pain was a manifestation of non organically based functional somatic syndrome that was significantly conscious.
253       I accept the submission by counsel for the defendants that the plaintiff’s medical evidence does not advance the plaintiff’s application pursuant to sub paragraph (a) much further.
254       Counsel for the plaintiff submitted the fact an ambulance was called indicated that it was clearly perceived by those at the incident scene that the plaintiff had a significant immediate problem.
255       A reference to bilateral absent ankle jerks noted on examination when the plaintiff was admitted to the Hospital was relied upon. It was submitted that this finding was “indicative that something was happening physically and it was a significant trauma to the low back”. I note, however, this was the only occasion when such a finding was made.
256       Further attendances at the Hospital were relied upon, including an attendance on 9 February 2004 when the plaintiff reported physical symptoms. When Mr Turner saw the plaintiff at the Hospital in April 2004 he believed the majority of the plaintiff’s symptoms emanated from the muscles in his lower back. He noted there may be some general nerve root irritability, but in the absence of any specific nerve root compression, he did not believe surgery was appropriate. However, Mr Turner reassured the plaintiff that there was no evidence of any major structural damage to his spine.
257       Dr Sargeant, in September 2003, diagnosed an L4-5/L5-S1 disc prolapse with clinical evidence of a left S1 nerve root irritation as a result of the incident. However, Dr Sargeant did not have the 2002 CT scan, the findings on which were similar to the 2003 CT scan.
258       Mr Battlay diagnosed mechanical low back pain from aggravated disc degeneration in the lower spine. However, he did not find evidence of sciatic nerve root irritation or a lower lumbar limb neurological loss.
259       Dr Aboud, in May 2005, certified there was low back pain which was related to the plaintiff’s work but he noted that it was complicated by depression, hypertension and morbid obesity.
260       Dr Fish, in December 2006, thought the plaintiff had aggravated pre existing lumbar disc degeneration with referred pain to the leg but he found no clinical evidence of radiculopathy. He had not seen any investigations but noted degeneration had been found.

261       Reliance was placed by counsel for the plaintiff on Mr O’Brien’s view that employment continued to be a significant contributing factor to the plaintiff’s condition in 2004. However, Mr O’Brien noted that the signs were certainly now subjective and did not clearly explain the apparent severity of the plaintiff’s pain. He commented that he certainly was unable to make a diagnosis on clinical grounds.
262       Mr Nye, whilst conceding a possible aggravation of pre existing lumbar degenerative disease, found there was no neurological basis for the plaintiff’s complaints and he also found evidence of abnormal illness behaviour.
263       Mr Miller thought the plaintiff had aggravated pre existing degenerative disease in the lumbar spine and aggravated mild to moderate spinal canal stenosis. He described this as a provisional diagnosis pending review of radiological material from the Royal Melbourne Hospital. On examination, Mr Miller did not find any neurological abnormality nor did he provide any real analysis of the plaintiff’s present condition.

264 Dr Assad, the general practitioner, in May 2009, included chronic dysfunctional low back pain due to spinal canal stenosis in his diagnosis. Whilst Dr Assad attributed the plaintiff’s restrictions to a physical injury, he also diagnosed a chronic pain disorder.
265       There is very limited medical support for an organic basis for the plaintiff’s present condition, both from a treatment and a medico legal view point.
266       I accept that abnormal illness behaviour or non organic factors have taken over the plaintiff’s presentation. Disregarding these non organic factors, I am unable to accept that the plaintiff’s impairment is serious on a physical basis. Significantly, no medical practitioner has been able to explain, on physical grounds, either the paralysis of half the plaintiff’s body following the incident or his continuing need to use a walking stick.
267       In this case, psychosocial or social factors have significantly contributed to the plaintiff’s abnormal illness behaviour. He has taken on an invalid role completely out of proportion to any organic injury – contributed to prior to the grant of citizenship by the plaintiff’s genuine fear of having to return to Egypt.
268       Whilst there is no authority directly on point, I accept that abnormal illness behaviour can be properly categorised as a severe behavioural disorder pursuant to sub paragraph (c) if the grounds set out by Ashley JA in Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227, when he made such a finding in relation to chronic pain syndrome, can be established.
269       The issue is whether the plaintiff can establish a sufficient causal link between the initial compensable physical injury and an abnormal illness behaviour which meets the severe criteria of a claim under definition (c).
270       Whilst there are a number of significant non work related factors contributing to the plaintiff’s psychiatric presentation detailed in the various medico legal reports, accepted by the plaintiff in cross examination and described by Ms Hooper, I accept that the incident is a cause of the plaintiff’s mental condition.
271       As Ashley JA in Grech v Orica Australia Pty Ltd & Anor (supra), set out, at para 58:
“The Act as with its predecessors, contemplates that a consequence may have a multiplicity of causes including a multiplicity of compensable injuries.”

272       Dr Neill supported a continuing work contribution to the plaintiff’s adjustment disorder and Dr Adlard thought that the plaintiff’s adjustment disorder was a psychological reaction to the incident, the plaintiff’s thumb injury and lifestyle changes.
273       Having found the incident was a cause of the plaintiff’s psychiatric condition, the issue is whether such impairment is severe.
274       The judgment of the Court of Appeal in Mobilio v Balliotis [1998] 3 VR 833 resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission (1995) 21 MVR 314, that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, His Honour said that “severe” was used in the definition as a stronger word than “serious”.
275       Winneke P, in Mobilio, agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in Clause (c) of sub-s.(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)
276       Where there is a pre existing psychiatric condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the incident is serious and permanent.
277       Whilst Dr Neill mentioned there was an aggravation of an adjustment disorder as a result of the incident, I do not accept that the plaintiff was suffering from any psychiatric condition before the said date. Obviously his childhood was particularly traumatic, but at the time of the incident the plaintiff was working full time doing two jobs without the need for medication or treatment.
278       Accordingly, I do not view this as an aggravation case.
279       The plaintiff has not been referred for psychiatric treatment since the incident. He is being prescribed a moderate dosage of antidepressant medication by Dr Assad who has not reported as to the plaintiff’s psychiatric condition in any detail.
280       The only treatment the plaintiff has received in relation to any such condition has been counselling from psychologist, Ms Hooper, since 2005. Save for her 2005 reports relating to this claim and also to the plaintiff’s visa application, there is no more recent evidence from Ms Hooper detailing the focus of her treatment, how the plaintiff is progressing or the likely duration of her counselling and the plaintiff’s need for treatment.
281       There is no suggestion by any psychiatrist that the plaintiff requires more extensive treatment than is presently undertaken.
282       In 2006, Dr Adlard suggested the focus of counselling should be directed towards the plaintiff improving his function increasing his activity. He did not suggest the plaintiff change his antidepressant treatment.
283       When Dr Neill examined the plaintiff in 2008, she thought the benefit of a low to moderate dosage of antidepressant was not discernable and that the plaintiff’s adherence was in some doubt. She thought a graduated reduction and cessation of medication was warranted given those considerations and in the absence of a major depressive illness. She noted that the nature of the monthly counselling appeared to be generic and not focussed on change.
284       The medico legal psychiatric opinion most supportive of the plaintiff’s claim is now over five years’ old. However, when Dr Jager diagnosed major depression in 2004, he noted that non work factors made the major contribution to the plaintiff’s psychiatric condition but there was a contribution by employment if the plaintiff had a continuing physical condition.
285       Dr Adlard diagnosed an adjustment disorder in 2006 and he did not think the condition was significant enough to warrant a diagnosis of major depression.
286       In 2006, Dr Glaser thought it unlikely the plaintiff was suffering from more than a mild degree of psychiatric impairment. He considered the plaintiff’s complaints could be best described as those of a chronic adjustment disorder and depressed mood.
287       Most recently, in 2008, Dr Neill thought there was an aggravation of a pre existing adjustment disorder because of the incident but she noted there were unrelated factors, being the plaintiff’s family relational problems which also contributed to it.
288       Both Dr Glaser and Dr Neill considered the plaintiff’s capacity for work from a psychiatric viewpoint.
289       Dr Glaser did not consider the plaintiff’s psychiatric condition was placing any major restrictions on his work capacity, noting that the plaintiff’s legal and social difficulties appeared to be the main current impediments to him returning to the workforce.
290       Dr Neill considered the plaintiff had no work capacity because of his overall health and entrenched passivity, not because he was suffering from an adjustment disorder.
291       Considering other possible consequences, I find the plaintiff’s problems with obesity clearly predated the incident. He underwent a dietary assessment in August 2002, at which time he weighed 138 kilograms. He weighed 140 kilograms when examined by Mr Marshall in July 2002 in relation to his motorbike accident injuries.
292       Further, the plaintiff is not socially isolated. He is still able to drive and he continues to attend the local church.
293       In all the circumstances, I am not satisfied that the plaintiff has a severe permanent psychiatric impairment.

Loss of Earning Capacity
294       It was conceded by counsel for the defendants that the plaintiff was totally incapacitated for employment.
295       However, as the plaintiff has not satisfied the narrative requirements to obtain leave, I am not required to consider this issue further.
296       Accordingly, I dismiss the plaintiff’s application for leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity pursuant to sub sections (a) and (c).

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Citations

El-Sayed v Polivac International Pty Ltd and VWA [2009] VCC 818

Cases Citing This Decision

0

Cases Cited

7

Statutory Material Cited

0

Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172

Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33

Financial Year	Gross Income from
Ending 30 June	Personal Exertion

[2009] VCC 818

24 June 2009