Falvo v Total Transport Logistics Pty Ltd
[2013] VCC 634
•7 June 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-12-00470
| DOMINIC FALVO | Plaintiff |
| v | |
| TOTAL TRANSPORT LOGISTICS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 May 2013 | |
DATE OF JUDGMENT: | 7 June 2013 | |
CASE MAY BE CITED AS: | Falvo v Total Transport Logistics Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 634 | |
REASONS FOR JUDGMENT
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SUBJECT: ACCIDENT COMPENSATION
CATCHWORDS: Injury to the lower back – prior unexplained injury to the lower back – onset of secondary psychiatric condition – whether the pain and suffering and loss of earning capacity consequences of the lower back injury are identifiable – whether the secondary psychiatric condition is responsible for the consequences contended for – the need for so-called disentangling – credit
LEGISLATION CITED: Accident Compensation Act 1985, s134AB(38)(c), s134AB(38)(h)
CASES CITED: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Shock Records Pty Ltd v Jones [2006] VSCA 180; Zivolic v Hella Australia Pty Ltd [2007] VSCA 142
JUDGMENT: The plaintiff’s originating motion is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Griffin with Mr G Pierorazio | L N Christie & Co |
| For the Defendant | Mr M Clarke | Herbert Geer |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed 3 February 2012 by which the plaintiff applies for leave, pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of or in the course of his employment with the defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr N Griffin appeared with Mr G Pierorazio of Counsel for the plaintiff, and Mr M Clarke of Counsel appeared for the defendant.
4 The plaintiff submitted that he suffered a serious permanent impairment or loss of the function of his lower back.
5 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered his Court Book (“PCB”), pages 18-110; 120-147 and 154: Exhibit A;
· The defendant tendered a Medical Certificate of the plaintiff signed by him on 4 November 2009: Exhibit 1;
· The defendant tendered its Court Book (“DCB”), pages 1-212: Exhibit 2.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in subsection (37)(c) of the Act which requires the plaintiff to prove that he has suffered a “serious permanent impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he suffered a compensable injury; that is, an injury which he suffered arising out of or in the course of his employment on or after 20 October 1999;[1]
[1]Section 134AB(1); Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[2]
[2]Barwon Spinners, at paragraph 33
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsections (19)(a), (19)(b) and (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity;
(d) Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”;
(e) Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently;
(f) Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined, save where the worker was under 26 years of when the injury was sustained. In those circumstances, subsection (38)(e) applies.
(g) Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application;
(h) Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event;[3] an approach which I intend to follow in the appropriate case;
(i) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury, whether the impairment is permanent, that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[3]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
The Plaintiff's background
8 The plaintiff was born in July 1961. He is now fifty-two years of age. He is divorced. He has two children from his former marriage. He presently lives with his female partner in Whittlesea.
9 The plaintiff last attended Strathmore High School. He left after completing Form 1. He was probably around thirteen to fourteen years of age when he left school. The plaintiff commenced work as a truck driver when he was lawfully entitled to obtain a driver’s licence. It is the occupation he followed until he suffered the injuries on which this application is based.
The Injury
10 The plaintiff commenced employment with the defendant in late 2007 as a truck driver. On 16 October 2008, he arrived at the defendant’s depot at Altona North at about 3:30am. In the course of washing his truck in a washing bay, he stepped into an open drainage pit from which the cover had been removed, but not replaced.
11 The plaintiff climbed out of the drainage pit. He was aware of pain in his right shoulder and wrist. He stripped of his clothing because it had become soaked in the liquid in the drainage pit. He washed himself and then went home. It was around that time that he began experiencing pain in his lower back.
12 The plaintiff showered when he arrived home. The pain he was experiencing in his lower back was sufficiently serious for him to go to the Northern Hospital for treatment. He was apparently seen at the hospital by medical staff, subsequently discharged and advised to see his own medical practitioner.
The Plaintiff's medical treatment
13 The plaintiff first saw Dr Hill, general practitioner, on 21 October 2008. The plaintiff told Dr Hill that he had suffered an injury to his lower back.
14 Dr Hill provided a number of medical reports. The content of the medical reports is not overly edifying, in that Dr Hill does not describe the treatment he provided the plaintiff in any helpful detail.
15 What I have been able to glean from the plaintiff’s affidavit and from Dr Hill’s medical reports is that the plaintiff was initially off work for about three or four months. It would appear that Dr Hill certified him as unfit for work over that period. The plaintiff made a return to work unsuccessfully. He was not able to work by the end of 2008. He returned to work subsequently with different employers, which I will refer to later in these reasons.
16 Dr Hill referred the plaintiff to have a CT scan, which was taken on 5 December 2008. According to the radiologist, the CT scan disclosed left-sided disc bulging between L4 and L5 and between L5 and S1 which he considered to be suspicious of disc protrusions especially at L4-L5. He also considered that there was narrowing of the left intervertebral foramen between L4 and L5 and minimally between L5 S1. He recommended that the plaintiff have an MRI scan.[4]
[4]PCB 106
17 Dr Wilson, who works at the same clinic as Dr Hill, referred the plaintiff to see Mr Wilde, orthopaedic surgeon. The letter of referral discloses that Dr Wilson considered that the plaintiff was suffering from lower back pain radiating into his left leg, and that he had suffered an L4-5 disc protrusion and narrowing of the left L4-5 foramen.
18 Mr Wilde first examined the plaintiff on 4 October 2009, and reviewed him on 4 November 2009 and 23 February 2010. He referred the plaintiff to have an MRI scan which was taken on 19 October 2009. According to the radiologist, the MRI scan disclosed a disc bulge at L4-5 which contacted the exiting left L4 nerve root within the foramen. She considered that to be the most likely cause of the plaintiff’s symptoms of lower back pain and left leg pain. She also noted a small disc bulge at L5-S1 which he considered was potentially irritating the exiting left S1 nerve root.[5]
[5]PCB 108
19 I should pause to note that Mr Clarke ultimately submitted that the medical evidence demonstrated that the plaintiff suffered an injury to his lower back, but that the cause of the pain and suffering and loss of earning capacity consequences were a gross psychiatric reaction. He submitted that I could not be satisfied that the impairment of the function of the plaintiff’s lower back had pain and suffering and loss of earning capacity consequences which were “serious”.
20 It is for that reason that I propose to set out the manner in which the plaintiff presented when examined by his treating medical practitioners, and the medico-legal consultants who have examined him for the purpose of this proceeding.
21 Mr Wilde provided a report dated 1 June 2010. He noted the following on examination:
“When he attended with me on 4/10/2009, his symptoms were significant low back pain with pain extending into his left groin and left gluteals with occasional pins and needles in the hamstring region. He rated pain levels extremely high at 10 out of 10 on the visual analogue scale. Pain was bad in the morning and he suffered with calf cramps. There was no bowel or bladder dysfunction. He could stand for less than 20 minutes and walk for less than 15 minutes. He was most comfortable lying down. He [s]ighted sexual intercourse and computer work as activities that made his pain worse.
…
Assessment of spinal function and activities of daily living (according to the modified Oswestry questionnaire criteria as answered by the patient on 5/2/2009) revealed that the pain intensity was severe but pain killers gave moderate relief. Regarding personal care activities such as washing and dressing, he needed occasional help but could manage most personal care. He could not lift or carry anything at all. He could walk up to quarter of a kilometre, sit for only 10 minutes, and stand for only 10 minutes. Even with tablets, he could only sleep 4 hours. Pain prevented even light homemaking/employment tasks. Pain restricted social life to home. He could not manage journeys in the car over 30 minutes.”
22 Mr Wilde referred the plaintiff to the Epworth Hospital where the plaintiff had an L4-5 foraminal nerve root block injection with local anaesthetic and steroid. It was administered on 13 November 2009. The plaintiff returned to Mr Wilde and told him that injection had not been helpful.
23 Mr Wilde's diagnosis of the plaintiff's physical injury was that he had suffered a chronic lumbar spinal condition. He considered it to be an aggravation of lumbar spondylosis without radiculopathy. He thought it likely that there was a degree of asymptomatic degenerative disc disease evident prior to the plaintiff suffering injury, and that the injury caused further internal disc derangement precipitating symptoms. He considered that the plaintiff’s prognosis was poor. He expected that the plaintiff would always suffer with low-grade symptoms of chronic lumbar pain and stiffness. He considered that the plaintiff would need to modify his personal and work activities to accommodate his symptoms to avoid further deterioration.
24 Earlier in his report, Mr Wilde noted the following relevant to the plaintiff’s presentation:
“ He walked into the consultation using a walking stick.
The clinical examination demonstrated significant exaggeration. He kept stumbling as if he were about to fall. There were many non-organic features. The examination of the lower limbs did not demonstrate a focal neurological deficit.”
25 Mr Wilde advised the plaintiff that he would benefit from a referral to a pain management expert. Mr Wilde recorded that the plaintiff was in receipt of prescriptions for significant painkilling medication. When the plaintiff first saw Mr Wilde he was taking Brufen, 400 milligrams, and Panadeine Forte. He also recorded that the plaintiff was then in receipt of prescriptions for Morphine, 60 milligrams, taking two per day, and also Valium.[6]
[6]PCB 51-57
26 The plaintiff was referred to Dr Thomas, consultant in rehabilitation and pain medicine. The plaintiff first saw Dr Thomas on 21 July 2010. The plaintiff told Dr Thomas that he had persistent pain in his lower back and left leg and that his pain was 9 out of 10 at its worst. At that stage, he was in receipt of prescriptions for MS Contin, 60 milligrams, taking to up to three tablets per day, and Valium, 5 milligrams, taking two and occasionally three per day. He also told Dr Thomas that he was totally dependent upon his wife for personal and domestic care, and that he spent most of his time watching television or occasionally his wife would put him onto the computer.
27 On examination, Dr Thomas noted the following:
“ … He was a demoralised looking man. He frequently broke down and cried.
Examination of his mobility indicated that he needed assistance in transferring. He needed assistance to stand. He was very heavily reliant on a single point stick.
Examination of his posture revealed that he had a flat lumbar lordosis.
He was markedly tender. Even light mechanical palpation around his lower back caused him to cry. He may have had some hyperalgesia to the left of the midline but this was difficult to assess. He had no brush allodynia.
He was not prepared to move his back, as all movements aggravated the pain.
Neurologically, lower limb reflexes seem to be present and symmetrical. Power in his left leg appeared to be intact. There was no wasting. Sensation was intact. Straight leg raising on the left was more limited than on the right but certainly far worse in the lying than the seated position.”
28 Dr Thomas was initially of the opinion that the plaintiff’s symptoms presented as a complex problem which he considered to be an organic problem, and a significant non-organic one. He later observed that the non-organic components were quite dramatic for the plaintiff and that they were clearly dwarfing the underlying organic component of his injury. He recommended that the plaintiff use Cymbalta, 30 milligrams, for two weeks and then 60 milligrams with food, and also a trial of Lyrica. It would appear that he considered that the organic component was an L4-5 disc injury which was responsible for the plaintiff’s lower back pain and left leg pain.
29 Dr Thomas reviewed the plaintiff on 13 October 2010, 20 December 2010, 7 February 2011, 21 March 2011, 12 December 2011, and on an occasion six months later which is not noted in his substantive report dated 5 March 2013, on 27 April 2012, 4 June 2012, 5 October 2012 and 4 February 2013. It is clear from Dr Thomas’s substantive report that he changed the plaintiff’s medication as a trial to see which medication might be most appropriate in the treatment of the plaintiff’s presenting symptoms. He also referred the plaintiff to have a further MRI scan which was taken on 20 February 2012. Dr Thomas compared it with the earlier MRI scan. He considered that it was not significantly different to the earlier MRI scan.
30 The impression I have of the occasions on which Dr Thomas reviewed the plaintiff following 13 October 2010 is that the plaintiff’s non-organic components were dominating his clinical presentation. Apart from attempts to treat the plaintiff pharmacologically, the plaintiff presented to Dr Thomas needing different bedding, a recliner chair, gardening support, a back brace, and a four-wheel walking frame, and it would appear that the plaintiff’s partner continued to care for him to a significant extent.
31 Dr Thomas’ diagnosis was that the plaintiff was suffering from a Chronic Pain Syndrome primarily involving his lower back. He considered that the plaintiff did not have the capacity to return to work as a truck driver. He considered that his “injuries” were long-term and permanent, that they had stabilised, and that his injuries were having a profound effect on his ability to function socially, domestically and recreationally. I am not sure what Dr Thomas meant by referring to “injuries”. The plaintiff only suffered one injury, and that is, an injury to his lower back. It appears to me that the reference to “injuries” was intended to include the plaintiff’s psychiatric condition.[7]
[7]Dr Thomas’ substantive report is at PCB 69-73 which appears to cover all of the treatment he provided the plaintiff, and the material covered in his earlier reports
32 Dr Hill provided a report dated 12 March 2013 in which he describes the plaintiff’s treatment and what medical condition he considered to be the cause of the plaintiff’s disablement. Unlike Dr Thomas, and indeed, unlike many of the other medical practitioners who have examined the plaintiff, Dr Hill considered that the plaintiff had suffered a prolapsed disc at L4-5 impinging on the L4 nerve with a smaller disc bulge at L5-S1. His opinion seems to be based upon the plaintiff having a strong pathological cause for the impairment of function of his lower back and the consequences which have arisen from the impairment. He did comment that the plaintiff had become depressed and had developed a behavioural disorder. He considered that the plaintiff needed psychological counselling.
33 The plaintiff was examined by a number of medico-legal assessors. The first was Dr Sutcliffe, occupational physician, who examined the plaintiff on 2 June 2011 and 20 February 2013. Dr Sutcliffe provided two medical reports. The plaintiff described a high level of symptoms to Dr Sutcliffe: constant pain waking him at night; assistance to roll over at night; waking pain; pain which increased with activity; increased pain on walking; a limited capacity to walk; the need to use an electric scooter for shopping and other activities; a capacity to drive his electric scooter and car for one and a half hours; standing limited to 5 to 10 minutes; inability to walk up hills and struggling with stairs; his left leg giving way, resulting in falls; reliance upon his partner for self care; limited capacity to undertake domestic tasks; able to do some shopping; attempts to clean his car; performs no gardening; falls when he bends over, suffers interference with his leisure activities, work activities, and sexual activity.
34 On examination, Dr Sutcliffe found very significant loss of movement in the plaintiff’s lower back, but no tenderness on palpation of the lower back. She found that the circumference of the right thigh was 51 centimetres and the left 48 centimetres. She concluded that the plaintiff had sustained the onset of disc derangement in his lower back at three levels and radiculopathy due to an irritation of the left L4 and left S1 nerves. She considered that he had no capacity for employment and would remain unfit for work for the foreseeable future.
35 Dr Sutcliffe described the plaintiff’s psychiatric condition as comprising some element of depression and probably Post-Traumatic Stress Disorder, but nowhere in her report did she describe what part of his physical presentation was affected by the depression and post-traumatic stress disorder. She did obtain a history that the plaintiff reported pain of severe intensity; the need to use a walking stick; use of electric scooter, and receipt of prescriptions for MS Contin, 60 milligrams, four times a day, Valium, 5 milligrams, twice a day, and Brufen and Prednisolone when required.[8]
[8]85-91
36 Mr O’Brien, orthopaedic surgeon, examined the plaintiff on 12 July 2011. He obtained a very similar history to Dr Thomas and Dr Sutcliffe regarding the plaintiff’s use of medication and the need for aids with his mobility. On examination, he observed that the plaintiff was using a walking stick, and that he was reluctant to take any steps without the use of a walking stick, but that he could stand unaided. He also observed that the plaintiff was unable to get onto the examination couch, but when he was seated he demonstrated a reasonable degree of lumbar flexion. It would appear that the plaintiff complained of significant pain on examination of his lower back in the setting of Mr O’Brien's findings that the power, sensation and reflexes in his lower limbs were all normal.
37 Mr O’Brien’s opinion is not dissimilar that of Mr Wilde. He said:
“Current physical symptoms are indeed entirely subjective. There is demonstrated evidence of illness behaviour in addition to the patient’s generalised restriction of movement of the entire spine. However, there are no accompanying features which would suggest the presence of any nerve root compromise or indeed radiculopathy. Investigations confirm degenerative change in the lower lumb[a]r discs with some disc bulging, however clinically there is no evidence of any form of nerve root involvement.
Although it is likely this patient did sustain lower back injury with the potential aggravation of pre-existing lumbar spondylosis, the clinical course however is clearly substantially influenced by psychosocial factors, which from a clinical perspective are now paramount in relationship to this patient’s current presentation. Thus I would suggest that the diagnosis now is complex, and does relate to a chronic pain syndrome.
… The prognosis in relation to this patient’s chronic pain syndrome is poor.
The patient now describes extreme disability, being unable to undertake normal activities of daily living without assistance, and now requires the use of a walking stick or a scooter to mobilise … .”
38 Like Mr Wilde and Dr Thomas, Mr O’Brien considered that there was a physical basis for the plaintiff’s complaints of pain, but it is plain from the manner in which he has expressed his opinions that the plaintiff’s illness behaviour was dwarfing the underlying organic component of his injury. Mr O’Brien then considered that the plaintiff was totally incapacitated with no likelihood of returning to gainful employment, and that he would continue to be extremely restricted in his general, social, domestic and recreational activities.[9]
[9]PCB 101-104
39 The defendant organised for the plaintiff to be examined by a number of medical practitioners. The first was Dr Mutton, who examined the plaintiff on 4 February 2009, 11 June 2010 and 5 January 2011. He provided a report dated 8 January 2011 in which he described his clinical findings as follows:
“ He presented as an invalid. He walked very, very slowly, with a stiff lower back, and a lot of weight through the right upper limb and single point of stick. He was heavily reliant on Lena to assist with getting him into and out of his chair. Nonetheless, he presented as quite cheerful, not at all like somebody suffering from chronic pain.
Examination was quite limited, as he reports that examination by the medical panel resulted in significant aggravation of his condition. I was able to note that the left knee jerk was a little weak compared to the right, but the left ankle jerk was quite brisk. Power and sensation in the limbs was otherwise maintained. There was quite a degree of spasm in the lower back, more so on the right side, and there was a very limited range of movement in the back of the lumbar spine."
40 Dr Mutton described the plaintiff as presenting as an invalid. He considered that the plaintiff’s ability to drive a car was in conflict with his quite severe inability to rise from a seated position independently. He did not consider that the plaintiff could manage a motorised scooter because of what he observed of the plaintiff’s movement from a seated position to a standing position because using a scooter would aggravate the condition of his lower back. He considered that the plaintiff had become a pain management issue, and that there were no strategies available except to manage the plaintiff’s pain. He considered that the plaintiff was suffering from chronic lower back pain which had not resolved, and that he had no current work capacity. He considered that there was exaggeration in the plaintiff’s presentation.[10]
[10]PCB 122-129
41 Dr Yong, specialist occupational physician, examined the plaintiff on 7 July 2009. He observed that the plaintiff walked into the consulting room with an obvious limp, holding on to his partner as he walked. He required assistance to dress and undress. On examination, there appeared to be significant loss of range of movement in the plaintiff’s lower back; reduction in left upper leg sensation to light touch; normal knee and ankle reflexes; normal and symmetrical tone in both legs, but power reduced in the left knee and ankle. He observed the plaintiff to cry out during the examination, complaining that the examination had caused him significant pain.
42 Essentially, Dr Yong was of the opinion that the plaintiff had suffered de-conditioning and that his clinical presentation suggested pain behaviour and a psychological comorbidity. He considered that the plaintiff was suffering chronic lower back pain. He considered that the plaintiff had a current work capacity at that time to work reduced hours with modifications.[11]
[11]DCB 132-141
43 Mr Williams, orthopaedic surgeon, examined the plaintiff on 16 June 2011. Mr Williams described his clinical findings as follows:
" … His movements appeared to be mostly exaggerated, indicating how difficult it was for him to stand up, to walk and to sit down. He used a stick in his right hand and as he rose from his chair with the assistance of the stick, his whole right upper limb and stick began to shake.
He can stand upright and his lumbar posture appeared normal. He performed very little movement at all in any direction in the lumbar spine, complaining that as he attempted to do so, it caused pain."
44 Otherwise, Mr Williams’ clinical examination appeared to be relatively normal. He found no muscle wasting consistent with what was found by Dr Sutcliffe. His clinical examination led him to conclude that there was no significant radiculopathy. He considered that what was seen on the radiology were probably naturally occurring abnormalities.
45 Mr Williams described the plaintiff as presenting as a rather unusual clinical picture suggestive of a significant non-organic component to the plaintiff’s sense of illness. He considered that the plaintiff was suffering with a type of chronic low-back pain syndrome. He did not consider that the symptoms he detected in the plaintiff’s left leg to be radiculopathy.[12]
[12]DCB 142-146
46 Dr Baynes, occupational physician, examined the plaintiff on 25 August 2011. Dr Baynes described his clinical examination as follows:
“ … He used a walking stick in his right hand. Mr Falvo required support from his partner to be able to walk. He also needed assistance to stand up from the chair and also to sit down. He was unable to get onto the examination couch, hence examination was limited. With support with the walking stick and from his partner while standing, Mr Falvo was unable to flex, extend or move in lateral flexion or rotation. He was unable to walk on his toes or heels and unable to squat. He was unable to fully straighten his left leg due to pain while sitting.
Neurological examination revealed low amplitude but present knee and ankle reflexes. Muscle power was decreased across the left ankle and knee, however sensation was normal.
Palpation revealed diffuse generalised tenderness over the lumbar spine, left and right facet joints and left and right buttocks. There was superficial tenderness. Axial compression was positive.”
47 Dr Baynes considered that the plaintiff was suffering from a Chronic Pain Syndrome associated with chronic lower back pain with referred pain into his left leg. He also considered that there was evidence of abnormal illness behaviour, and no objective evidence of radiculopathy. He referred to the radiology which he considered showed evidence of an L4-5 left-sided disc prolapse. Based upon the plaintiff’s presentation, Mr Baynes considered that the plaintiff did not have a capacity to return to alternative duties, and he noted that there were significant psychosocial factors impacting upon the plaintiff’s recovery and capacity to return to work.[13] In a supplementary report, he described the plaintiff’s abnormal illness behaviour to be marked.[14]
[13]DCB 149-154
[14]DCB 155
48 Mr Simm, orthopaedic surgeon, examined the plaintiff on 18 October 2012. The plaintiff told Mr Simm that his pain is five out of ten during the day and rises to more than ten out of ten on most days. He experiences a stabbing pain in the back and on the front of both thighs and groins. The pain is aggravated by sitting for thirty to sixty minutes or by lying down in one position. His legs gave way spontaneously and he fell frequently. His left thigh and groin pain was more painful than the right, and his left leg was more likely to collapse than the right leg. He was not able to bend over. His partner has to help him put on his shoes and socks.
49 On examination, Mr Simm noted the plaintiff’s observed behaviour as follows:
“ His clinical presentation was directed towards demonstrating severe disability.
He presented as a dependent invalid. He struggled to walk, leaning heavily on the walking stick held in his right hand and with Ms Gubian providing considerable support under his left arm. Whilst he was walking he groaned and puffed frequently and seemed to be in severe pain.
…
When she first attempted to assist him into the standing position to undress him he seemed to be almost unable to stand up. He leaned heavily on the walking stick, his arms and legs shook and Ms Gubian seemed to almost lift him off the chair. I asked him in the light of what I had just observed how he managed to get in and out of a car and drive a car independently, and he said it was much easier to get in and out of a car than to get on and off a chair.
Ms Gubian undressed him. He was virtually unable to stand. He demonstrated limited thoracolumbar movement, leaning on his walking stick. He looked as if he might fall over and I did not persist.
Neurological examination of the lower limbs was difficult to evaluate. He had normal reflex activity and downward going plantar responses. I commenced assessment of resisted movements by asking him to extend the left big toe against resistance. A he did so he cried out in pain, stating that resisted movement of the big toe causes severe low back pain. I attempted gentle resisted movements of both the right and left lower limbs, but these movements were associated with a complaint of severe lumbar pain and I did not persist.
Considering his complaint of groin pain, I attempted to gently assess rotational movement of the hips with him seated in the chair. He allowed some rotation of the right hip without complaint of pain. As I gently externally rotated the left hip he cried out in pain and grasped his left groin. He became most distressed. He appeared to start crying and he wiped his eyes with a handkerchief."
50 Mr Simm appears to have given consideration to the radiology and other reports of other medical examiners. It would appear that he considered that the radiological examinations were consistent with disc degeneration in the lower back. The substance of his opinion is as follows:
“ He had referred pain around the buttock, into the groin and into the thigh, but he did not describe radicular pain extending into the left foot, nor did he describe neurological symptoms suggestive of L4 or L5 nerve root irritation or radiculopathy. The referred symptoms into the buttock, groin and side could have been a reflection of internal disruption in one or both of the degenerative lumbar intervertebral discs. The physical condition of his back has now been completely overwhelmed by the development of a nonphysical condition. I am not able to provide a medical diagnosis for his current clinical presentation … His apparent inability to virtually stand and walk, and his requirement for a walking stick and a mobility scooter are not due to any physical condition that I was able to diagnose on the basis of my examination today. I think this man would be much better evaluated by specialists in chronic pain and psychiatry.”
51 Mr Simm considered that the plaintiff presented as being extremely disabled with virtually all activities accompanied by a severe adverse pain response. He considered that the plaintiff had no capacity for employment. He recommended that the plaintiff be examined by a pain management specialist and a psychiatrist.[15] He confirmed the opinions he expressed in a supplementary report dated 26 March 2013.[16]
[15]DCB 166-117
[16]DCB 171-172
52 The plaintiff was examined by two psychiatrists. He was referred to Dr Seward by his solicitor. Dr Seward did not observe the same behaviour on the part of the plaintiff as observed by Mr Simm, nor did she obtain the impression that the plaintiff was an invalid. The reports she had available are listed on the second page of her report. They included some reports of Dr Hill, a report of Mr Wilde and a report of Dr Sutcliffe only.
53 Dr Seward obtained a history from the plaintiff of his lifestyle. It would appear that the plaintiff told her that he was unable to engage in any social, recreational or domestic pursuits, nor that he was able to work.
54 On the basis of what Dr Seward understood of the injury to the plaintiff’s lower back and its consequences, she was of the opinion that the plaintiff had developed an Adjustment Disorder with Depressed and Anxious Mood and a Pain Disorder associated with both psychological factors and a general medical condition. She considered that he was unfit for work. She recommended that he be referred for psychiatric treatment. She noted that his mood was depressed and anxious and that was experiencing chronic pain.[17]
[17]PCB 92-99
55 The second psychiatrist who examined the plaintiff was Dr Jager, who examined the plaintiff for the defendant on 25 August 2011. His report is very brief. He was provided with a medical certificate of Dr Hill, a vocational assessment report, a report of Dr Thomas, a report of Dr Mutton, and a report of Mr Wilde. He considered that the plaintiff was suffering from an Adjustment Disorder with Depressed Mood. He also considered that the plaintiff could undertake modified alternative duties within his physical restrictions. He noted that the plaintiff had not had any psychiatric treatment. Unlike the observations made by Mr Simm and other medical practitioners regarding the plaintiff’s behaviour when examined, Dr Jager noted that the plaintiff did not describe any bizarre beliefs or abnormal sensory perceptions, was alert and attended well at the interview, but appeared dejected and verged on tears.[18]
[18]DCB
The Plaintiff's evidence
56 The plaintiff swore two affidavits on 29 September 2011 and 1 May 2013. In his first affidavit, he described the following pain and suffering consequences:
“Presently I suffer from constant pain in my lower back. In addition I experience pain which runs down into my left groin, and occasional pins and needles. Often I have no feeling in my left leg and across the bottom of my tailbone. Sometimes my left leg gives way. I have had to rely on a walking stick and more recently have been assessed as suitable for a scooter. My pain is particularly bad in the morning and I suffer from cramping in the calf. The pain is present all the time, although on some days it is worse than others. It is aggravated by standing or sitting for any prolonged period of time. I have trouble walking for more than about ¼ kilometre. I had difficulty sitting for more than about 10 min[s]. I find I’m only truly comfortable when I’m lying down. Even then I have trouble sleeping and most nights I get up 2 to 3 times. My sexual relationship with my partner has also been affected.”
57 The plaintiff then described having difficulty with domestic tasks; being unable to garden and mow his lawns; mop and vacuum; to do any cooking; shop unaccompanied; service his car; drive long distances; socialise, and sit in front of a computer. All of the foregoing have occurred as a consequence of the injury to his lower back.[19]
[19]PCB 24-25
58 In his second affidavit, the plaintiff essentially repeated very similar pain and suffering consequences. Additionally, he described needing a walking stick, a walking frame and a scooter to aid with his mobility, and that he uses MS Contin, four tablets per day, and Valium, two tablets per day, both for pain relief.
59 After the plaintiff returned to work with the defendant, he said he was given tasks which he was unable to perform because they aggravated the condition of his lower back. He quit, but soon found alternative employment with a company known as Rutley as a truck driver. He was involved in interstate driving. He said he was unable to cope with that work after about one-a-half months. He then found alternative employment with Interlink Freight Management Pty Ltd from 25 May 2009 to 11 November 2009, and then with SRM Transport from 8 December 2009 to 26 January 2010. The work involved driving from depot to depot rather than any interstate work. In both affidavits, the plaintiff described being essentially totally incapacitated for work as a truck driver or in any other type of employment. He has not worked since January 2010.[20]
[20]PCB 22 and 29-30
60 The defendant tendered a large body of claim documents and medical reports relevant to an injury suffered by the plaintiff on 5 April 1993 when he was working for a company known as K & S Distribution of Footscray. The plaintiff was lifting centre dividers from a trailer when the injury occurred.[21]
[21]DCB 1-5
61 Mr Clarke cross-examined the plaintiff, putting to him that he had been referred to a number of medical practitioners for assessments relevant to a claim which he instructed a solicitor to bring for him for compensation payments pursuant to the Act. The plaintiff said he did not remember much about the injury he suffered, nor the claim he made, nor the medical examinations which undoubtedly took place.
62 It appears to be quite plain that the plaintiff did make a claim, as evidenced by the claim for compensation for permanent disability dated 16 June 1994, which describes that the plaintiff alleged that he had suffered a permanent disability to his lower back, left leg, from depression, from the development of the functional overlay and from irritability, and was seeking compensation for pain and suffering for the same injuries and consequences.[22] He must have instructed the solicitor acting for him to pursue his entitlement to compensation because a statement of claim was drafted which was endorsed on a statement of claim. The front page of the writ is missing, but the last page of the writ follows the last page of statement of claim.
[22]DCB 5
63 I do not propose to summarise the reports except to refer to one of the last which demonstrates the type of injury suffered by the plaintiff in April 1993.[23] The last medical practitioner to examine the plaintiff was Mr Flaim, surgeon, who examined him on 1 July 1996. Mr Flaim referred to an MRI scan taken in August 1993 which demonstrated an L4-5 disc abnormality with bulging to the left without evidence of nerve root pressure and loss of signal intensity from L5-S1. Mr Flaim was of the opinion that the plaintiff had suffered an L4-5 disc lesion resulting in lower back pain and intermittent left-sided sciatica. He considered the plaintiff’s prognosis to be fair, and that he was probably unable to work in an unguarded and unrestricted manner.[24]
[23]the other medical reports are DCB 12-103
[24]DCB 99-102
64 Mr Clarke also cross-examined the plaintiff about a CT scan which was taken on 18 April 2007 on referral by Dr Hill. According to the radiologist, it showed a small L5-S1 paracentral protrusion contacting the left S1 nerve root, and a mild L4-5 disc bulge. The plaintiff was unable to explain the circumstances leading up to his referral by Dr Hill to have the CT scan.
65 The plaintiff said that if the medical reports disclosed that he had seen a number of doctors, then he would not contest that he must have seen those doctors. Furthermore, if the documents disclose that he saw a solicitor, that he made a claim, that a statement of claim was drafted and that a proceeding was commenced on his behalf, then he would not contest that he saw a solicitor and a claim was made on his behalf. However, he persistently said that he could not remember much of the foregoing, and only admitted what I have just referred to after the same was put to him. He also did not contest that he received a lump sum of compensation for the injury which he suffered on 5 April 1993.[25]
[25]Transcript 22-23
66 Mr Clarke also put to the plaintiff that the histories taken by a number of medical examiners suggested that he had suffered significant pain and interference with his capacity to work and engage in non-working activities. He referred to the Statement of Claim which pleads a significant level of disablement and incapacity. He also referred to the fact that the plaintiff did not inform the medical practitioners who examined him for the injury on which this application is based that he had suffered a previous injury, or where he did refer to that previous injury, he did so in a manner not consistent with the nature and extent of the injury and its consequences.
67 The plaintiff repeatedly said that he considered that all he had suffered on 5 April 1993 was a straining injury to his lower back from which he made a reasonably rapid recovery. I have read the medical reports which Mr Clarke took me to relevant to the claim the plaintiff made. It is very clear to me that the injury was not a straining injury, but was an injury of some magnitude clearly evidenced by the examination and opinion of Mr Flaim.
68 I do not accept the plaintiff’s evidence that he cannot remember much of what happened on 5 April 1993 and the subsequent course of his claim. My reasons for reaching that conclusion are that he was examined by eleven medical examiners between July 1993 and July 1996, made a claim and then brought a proceeding. It strikes me as being extraordinary that the plaintiff could not remember some of that history. Equally, it seems odd that the plaintiff cannot remember having a CT scan in April 2007 which is about nineteen months prior to the plaintiff suffering the injury on which this application is based. I infer that Dr Hill referred the plaintiff to have a CT scan because he complained of having serious enough lower back pain to necessitate having a radiological investigation of that kind.
69 Mr Clarke cross-examined the plaintiff on how long he was incapacitated for employment following the injury he suffered on 5 April 1993. The plaintiff’s recollection was confused. The best I have gleaned from the evidence is that he was probably incapacitated for work between 1993 and 1995. He was then self-employed as a truck driver until he was divorced in 2006 or 2007. Subsequently, he worked for the trucking firm known as Bag Trans before commencing work with the defendant.[26]
[26]Transcript 23-25
70 The troubling aspects of the plaintiff’s prior claim and the 2007 CT scan is that none of these were addressed by the plaintiff. None of the medical practitioners who examined the plaintiff in this proceeding were given the benefit of any of the prior medical material. It is difficult for me to determine what I should make of it except that, logically, if the plaintiff had a prior lower back injury of some significance, then the examining medical practitioners would need to weigh into consideration to determine whether the plaintiff had pre-existing discal injury in his lower back and whether the incident on which this application is based caused the discal injury seen on later radiology, or whether the orthopaedic surgeons are indeed correct that the appearances of discal abnormalities are pre-existing, and that the plaintiff suffered an aggravation of lumbar spondylosis with perhaps some discal involvement.
71 However, I accept the plaintiff’s evidence that he did return to work some time after 1995, and was certainly working with the defendant for some time prior suffering injury in its employ.
The medical evidence
72 The first radiological examination conducted following what occurred on 16 October 2008 was a CT scan taken on 5 December 2008. According to the radiologist, it disclosed left-sided disc bulging at L4 and L5, and between L5 and S1. Some of the examining medical practitioners considered the CT scan and the subsequent MRI scans to be of significance, but most of the orthopaedic surgeons who examined the plaintiff were unconvinced that the incident resulted in the plaintiff suffering any frank discal pathology.
73 Mr Wilde, Mr O’Brien, Mr Williams and Mr Simm did not attach any particular importance to the radiological examinations. They each considered that the radiological examinations were consistent with pre-existing lumbar spondylosis. Their opinions are in contrast to the opinions of the non-orthopaedic surgeons.
74 Dr Hill appears to have accepted the appearances on the radiology as demonstrating discal abnormality at two levels caused by the incident. Dr Thomas did not expressly adopt the appearances on the radiology as demonstrating discal abnormality, but it would appear that he considered that the L4-5 disc was implicated as a cause of the plaintiff’s lower back pain and left leg pain. Dr Sutcliffe appears to have expressed an opinion that, putting the plaintiff’s case at its highest, the plaintiff had sustained disc derangement in his lower back at three levels with radiculopathy due to irritation of the left L4 and S1 nerves. Dr Mutton appears to have accepted the appearances of discal injury disclosed by the MRI scan taken on 19 October 2009. Dr Yong did not comment on the appearances on radiology. He was content to describe the plaintiff as suffering chronic lower back pain. Dr Baynes considered that the appearances in the radiology were consistent with an L4‑S1 left-sided disc prolapse resulting in referral of pain into the plaintiff’s left leg.
75 What I am faced with is determining whether the appearances on the radiology are of significance. This is an important question, because it goes some of the way to determining whether I should accept the plaintiff’s evidence that he is significantly disabled and incapacitated. Where there is probably some commonality between the orthopaedic surgeons, the general practitioner and the occupational physicians, is that Mr Wilde did not discount there being some internal discal derangement, and Mr Williams did find that the plaintiff had some symptoms in his left leg, but not amounting to radiculopathy.
76 I am conscious of what the Court of Appeal said in its joint judgment in Giankos v SPC Ardmona Operations Ltd,[27] in which the Court observed:
“Expert opinion evidence must relates to matters which are wholly or substantially within the expert’s field of expertise. It follows that medical opinions about the suitability of particular employment for an injured worker should focus on the physical restrictions which a particular impairment imposes, rather than on whether the injured person is able to do a particular job. There is a danger that medico-legal experts will stray beyond their field of expertise, and give unqualified opinions about the jobs which can or cannot be done by the worker. Except where a medical practitioner has specialist occupational health and safety qualifications or experience, a medical opinion as to the work which an injured worker can perform may fall outside the doctor’s area of expertise. M r Horton’s opinion that ‘he would have thought’ that the appellant was fit to return to forklift driving, comes close to transgressing this boundary.”[28]
[27][2011] VSCA 121
[28]paragraph 96
77 Diagnosis and treatment of the spinal complaint is in the field of orthopaedics. That is not to say that the opinion of the occupational physicians is irrelevant, but their field is rather more treatment for the purpose of rehabilitation. That seems to me to be the direction in which Dr Thomas was taking the plaintiff. He was concerned, obviously, to make a diagnosis of the plaintiff’s injury for the purpose of determining what treatment might affect a measure of improved physical health for the plaintiff. I think that resonates in his reports.
78 It is for this reason that I prefer the opinion of the orthopaedic surgeons who consider that the appearances on the radiology suggest degenerative changes which have been aggravated by the incident. However, it must be remembered that Mr Wilde did not discount some internal derangement of an intervertebral disc. None of the orthopaedic surgeons considered that the plaintiff was suffering from radiculopathy. I understand, in this context, radiculopathy to mean pain resulting from compression of a nerve root affecting a lower limb. Mr Williams considered that the plaintiff was not suffering from radiculopathy, but he did not discount that the plaintiff was experiencing some symptoms in his left leg.
79 That brings me to the CT scan taken on 18 April 2007. A comparison between what it disclosed and the MRI scan taken on 20 February 2012 demonstrates identifiable pathology at L4-5 and L5-S1. There is no medical interpretation of the similarities, or indeed any dissimilarities, of the CT scan and the MRI scan, but I am rather more fortified in accepting the opinion of the orthopaedic surgeons that the plaintiff suffered an aggravation of degenerative changes because the CT scan discloses changes in the discs at both of those levels, which are the same levels on which the orthopaedic surgeons concentrated in making a diagnosis.
Disentangling
80 Mr Griffin submitted that if I was satisfied that the plaintiff suffered an injury to his lower back in the incident, then the development of chronic pain resulting in the plaintiff suffering significant disablement and incapacity must mean that the plaintiff succeeds in proving that the pain and suffering and loss of earning capacity consequences are “serious”.
81 Mr Clarke submitted that the plaintiff did suffer an injury to his lower back; however, there are serious questions about the plaintiff’s credit based upon his previous injury and claim. He submitted that I cannot be satisfied, whatever pain and suffering and loss of earning capacity consequences flowed from the impairment of function of the plaintiff’s lower back, that those consequences have been produced by the impairment of function of the plaintiff’s lower back or by his secondary psychiatric condition.
82 I think the submission made by Mr Griffin ignores the intention of the legislature to require a judge to identify the physical injury, the impairment of function caused by the injury and the consequences which flow from that impairment by not taking into account what s134AB(38)(h) makes very clear:
“[T]he 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.”
83 The approach which the trial judge must take, where it appears that consequences are contributed to by both the physical injury and a secondary psychiatric condition, has been the subject of a number of pronouncements by the Court of Appeal. The last is Jayatilake v Toyota Motor Corporation Australia Ltd.[29] Ashley JA referred to the approach which Bell AJA advocated in Shock Records Pty Ltd & Anor v Jones[30] and Redlich JA in Zivolic v Hella Australia Pty Ltd[31] with approval, in that there is no need for any so-called disentangling or stripping away if the judge has reached a point of being satisfied that the impairment of function has produced consequences which are “serious”.
[29](2008) 20 VR 605
[30][2006] VSCA 180
[31][2007] VSCA 142
84 In Jayatilake,[32] Ashley JA gave two illustrations when the need for disentangling or stripping away is not required. I propose to set out the examples because they are instructive:
“Suppose a man loses a dominant right arm in an industrial accident. For a year or so he attempts to resume his former manual work; but he cannot do so. It is also clear that he cannot enjoy any of his previous recreations — gardening, golfing, and so on. These sequelae will be permanent. Later, in response to his injury and its effects upon him, he begins to suffer from somatic symptoms which make his life more of a misery. He has recurrent headaches, chest pain, and abdominal discomfort, all of which would preclude him working and from enjoying his former recreations. These somatic symptoms could be ‘stripped away’, almost certainly without the assistance of medical practitioners. But it could not sensibly be said that this would be necessary in order for the appellant to establish that the impairment in its physical consequences constituted serious injury.
Consider another example. A man of mature years, who has always been a labourer, suffers spinal injury. It is sufficiently serious to require a three level spinal fusion. He is left with a stiffened back. The spinal segments above and below the fusion are at increased risk of injury because of the fusion. Medical opinion is that the man will be limited, permanently, in the work which he can perform; and his essential recreational pursuits are seriously and permanently inhibited. Later on, he develops intractable pain in the affected area with radiation to his lower limbs. The pain cannot be explained physically. It is a psychological phenomenon, and it is very disabling. There could be no need to disentangle the psychologically-based symptoms and their consequences — although again it may be assumed that it would be possible to do so.
Finally, consider a variant of the second example. Suppose that the intractable pain, psychologically-based, has its onset very soon after surgery. The physical impairment, and its impact upon work capacity, would be no less ascertainable only because the psychologically-based symptoms were not ‘stripped out’.”[33]
[32](supra) at paragraphs 26-28
[33]
85 I am not satisfied that the impairment of function of the plaintiff’s lower back has pain and suffering and loss of earning capacity consequences which are “serious”.
86 The plaintiff suffered an injury to his lower back for which he has had treatment provided by Dr Hill, and then by Mr Wilde, in addition to physiotherapy and the prescription of medication. He was able to tolerate the pain he was experiencing because he was able to return to work with the defendant, and when he was unable to continue with that work, he found alternative work as a truck driver performing interstate driving, and later depot to depot driving.
87 What began to emerge at around the time the plaintiff saw Mr Wilde in June 2010 was significant exaggeration, which Mr Wilde described as non-organic features. The presence of those non-organic features drove Mr Wilde to suggest that the plaintiff be referred to a pain management expert – no doubt because the plaintiff’s presentation suggested that there was no treatment which could be provided to the plaintiff from an orthopaedic viewpoint.
88 It is very evident that the other orthopaedic surgeons shared the same, or a similar view. It is abundantly clear from the examination conducted by Mr Simm that it was impossible for him to determine the nature and extent of the injury which the plaintiff had suffered to his lower back.
89 A similar picture emerged from the examinations by Dr Thomas, who probably made the most relevant observation, that the non-organic components were not only quite dramatic, but that they were dwarfing the underlying organic component of the plaintiff’s injury. That observation seems to me to be consistent with the opinions of the other occupational physicians, except for Dr Yong, who did not describe the non-organic components as graphically as the other occupational physician, and Dr Sutcliffe, who considered there was a physical basis for the plaintiff’s complaints, but she did say that he was also suffering from Depression and a Post-Traumatic Stress Disorder. Dr Hill appears to share similar view to Dr Sutcliffe.
90 What seems to permeate the medical examinations are descriptions of non-organic components which led some of the examiners to describe his presentation as significant exaggeration;[34] significant non-organic component dwarfing the underlying organic component;[35] illness behaviour;[36] as an invalid;[37] pain behaviour and a psychological comorbidity;[38] significant non-organic component;[39] abnormal illness behaviour,[40] and as a dependent invalid.[41]
[34]Mr Wilde at PCB 54
[35]Dr Thomas at PCB 61
[36]Mr O'Brien at PCB 104
[37]Dr Mutton at DCB 124
[38]Dr Yong at DCB 136
[39]Mr Williams at DCB 145
[40]Dr Baynes at DCB 145
[41]Mr Simm at DCB 166
91 Applying the logic in the approach advocated by Ashley JA, the plaintiff did suffer an identifiable injury to his lower back, but it was not so disabling that incapacitated him for work, and by inference, in relation to his capacity to function generally. That must be the case because he returned to work and then found alternative work until January 2009.
92 Unlike the examples given by Ashley JA, the degree of impairment of the plaintiff’s lower back appears to be limited to an aggravation of degenerative changes, perhaps with some discal involvement. However, the measurement of any discal involvement became seriously blurred by the development of the non-organic components which Mr Wilde commented on. It seems that from that point on, the examining medical practitioners were less able to determine the physical cause for the plaintiff’s disablement, and were confronted with an increasing involvement of non-organic components ultimately leading to examination by Mr Simm, who found it impossible to detect an organic basis for the complaints made by the plaintiff because of the manner of the plaintiff’s presentation.
93 Lastly, the plaintiff’s own evidence is one of extreme disablement. It appears to me to be completely out of proportion to the nature of the injury which the orthopaedic surgeons found was likely to be the injury caused by the incident. When that is added to the opinions of the medical practitioners who examined the plaintiff, I cannot determine what of the consequences contended for by the plaintiff are causally connected to the injury to the plaintiff’s lower back.
Conclusion
94 On the basis of the foregoing reasons, findings and conclusions, I order that the plaintiff’s Originating Motion be dismissed.
95 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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