Fenech v Passive Image Security Pty Ltd
[2011] VCC 1236
•16 September 2011
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
| AT MELBOURNE CIVIL DIVISION SERIOUS INJURY |
Case No.CI-09-04023
| VICTOR FENECH | Plaintiff |
| v | |
| PASSIVE IMAGE SECURITY PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE BOWMAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4, 5 and 14 April and 31 May 2011 |
| DATE OF JUDGMENT: | 16 September 2011 |
| CASE MAY BE CITED AS: | Fenech v Passive Image Security Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1236 |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s.134AB – injury to the low back and psychological or psychiatric injury – leave sought in respect of pecuniary loss damages and pain and suffering damages – dependence on a narcotic medication – whether plaintiff’s ability to engage in suitable employment destroyed – whether burden of proof discharged.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC | Shine Lawyers |
| with Mr B Anderson | ||
| For the Defendant | Ms J Forbes | Thomsons Lawyers |
| HIS HONOUR: |
General background
1 This matter comes before me by way of an application pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. The plaintiff seeks leave in relation to both pain and suffering damages and pecuniary loss damages. In bringing his application, the plaintiff relies upon sub-paragraphs (a) and (c) of the definition of serious injury contained in s.134AB(37) of the Act, although in both their written submissions and the closing address counsel for the plaintiff indicated that the primary claim was pursuant to sub-paragraph (a). In summary form, the plaintiff’s claim could be described as one relating to an injury to the low back and the sequelae thereof, such injury being suffered as a result of a slip on a water- covered floor, this occurring on or about 3 May 2004. Such slip and fall took place at the premises of Yarraville Club Cricket Club Inc. at which the plaintiff was working whilst in the course of his employment with the defendant. Originally the occupier was also named as a defendant to this application, although taking no part in it. However, Mr Randazzo, a partner in the firm then known as DLA Phillips Fox and which firm is conducting the defence of the occupier, kindly attended court and consented to the deleting of the name of the occupier from this originating motion. Hence, the remaining defendant is the entity which employed the plaintiff at the relevant time and in the employment of which the plaintiff suffered the injury or injuries alleged.
2 Mr T Tobin SC with Mr B Anderson of counsel appeared on behalf of the plaintiff. Ms J Forbes of counsel appeared on behalf of the defendant. The plaintiff was called to give evidence and was cross-examined. Mr Russell Miller, orthopaedic surgeon, who examined the plaintiff at the request of his solicitors, also gave oral evidence and was cross-examined. The balance of the evidence consisted of documents and surveillance videos which were tendered by consent.
3 I am familiar with the numerous decisions of the Court of Appeal which bear upon applications such as this and shall endeavour to apply the principles set out in them in coming to a decision in this case. I shall not list such cases here but shall refer to any cases which I consider to be specifically relevant in the course of this judgment. It was not argued but that the plaintiff bears the burden of proof.
4 Further, I thank the parties for the patience which they have shown whilst awaiting a judgment in this matter. It is an application which, for a variety of reasons, could certainly be described as having an interrupted run. Firstly, after the evidence of the plaintiff was taken there was a delay before Mr Miller became available to be cross-examined. Because of this, it became virtually impossible for counsel to deliver their closing addresses prior to my going on sabbatical leave. Thus, the hearing was again interrupted for a substantial time. Following closing addresses and the delivery of written submissions, there were further delays caused by my then hearing a lengthy civil jury trial. Immediately following the conclusion of it, I was again absent from the court, returning to immediately go on circuit. I apologise for the delay in delivering this judgment. Unfortunately a number of largely unavoidable occurrences or circumstances contributed to this. My associate contacted counsel explaining the situation, and I again thank all concerned for their patience.
Factual background
5 The following findings of fact are made for the purposes of this application and are not intended to be findings which are in any way determinative in relation to issues such as negligence, the quantum of damages, entitlement to statutory benefits and the like.
(i) The plaintiff 6 Essentially I found the plaintiff to be a credible witness. There was a considerable attack upon his credit, and quite lengthy surveillance was shown. This failed to show him using a walking stick or crutches, which aids are recorded as having been used by him upon presentation to various doctors. He had also sworn in his affidavit of 21 May 2010 that he often needs to use a crutch or walking stick for support when he gets out of the house. He was not using either in any of the video material, which was quite lengthy and which was taken in mid-2009. In addition, the plaintiff did not present in court with a walking stick, although he stated that he had a fold-up version with him in a bag, as he always keeps a walking stick near him. He stated that he needed it if he walked long distances, and doubted that he could walk a whole city block without the stick. He agreed that he had presented to doctors on a walking stick or crutches, and said that sometimes he did not use walking aids. I note that when an employment assessment was carried out by Ms Mary Oliver of Flexi Personnel on 15 March 2010 the plaintiff stated that he used a walking stick or crutch inside the home but leaves it in his car when he goes out because he is embarrassed.
7 It seemed to me, upon viewing the video material, that the plaintiff moved in a slow manner. This was also the view of Mr Russell Miller, orthopaedic surgeon, who had the opportunity to view all the material. There shall be further discussion concerning the opinions of Mr Miller subsequently. I agree with the concession made by Mr Tobin that the video footage may have demonstrated standing tolerances greater than what has been described to some medical examiners. When this is combined with the absence of walking aids, although I am not of the view that the plaintiff’s credit has been destroyed or seriously damaged, I am of the view that there may have been some embellishment in his description of his restrictions to some examiners. Whether such embellishment was conscious or unconscious is difficult to say. Clearly the plaintiff could be described as being “injury focused”. However, I have not formed the opinion that the plaintiff has been trying to mislead in any major fashion.
8 Quite a lengthy section of the video material shows the plaintiff watching his son play soccer. However, he had told Dr Alan Jager, consultant psychiatrist examining on behalf of the defendant, that he got enjoyment from his son’s soccer, having told him this at an examination on 13 October 2009.
9 I also note that the plaintiff told Ms Oliver that he takes his son to soccer games. The surveillance of him in relation to this does not reveal a person engaging in any strenuous activities, and, apart from the fact that it shows that the plaintiff is able to get out and about, I do not regard it as having any significant adverse impact upon his credit or as demonstrating any capacity of note.
10 Furthermore, in relation to the surveillance at the soccer, such surveillance being taken on 20 June 2010, a very proper concession was made by Ms Forbes that the investigator thought that the plaintiff did show some physical signs of pain and discomfort at the end of the video, which, it is submitted by Mr Tobin, ended abruptly. The plaintiff gave evidence that he could recall the occasion, and that he took Panadeine Forte before he went home. He can also recall being helped by his wife back into the car (this occurring after the video ceased), and can recall on that day telling his son to give up the soccer because it was becoming too much for the plaintiff.
11 Dr Navani, who has been the plaintiff’s treating general practitioner over many years, expresses no doubt whatsoever as to the genuine nature of the plaintiff’s complaints, and, as shall be discussed, refers to him as permanently having no work capacity.
12 Mr Miller, having viewed the video material, did not alter his opinion, which was favourable to the plaintiff.
13 Similarly, in essence, I accept the plaintiff as a witness who was doing his best to answer questions truthfully. If there has been some embellishment of symptoms and restrictions, I do not accept that such was necessarily deliberate, and I do not accept that it has been of sufficient magnitude to destroy the plaintiff’s credit or his case.
(ii)
The plaintiff’s education, background and training prior to the injury
14 The plaintiff is aged 53 years, having been born on 21 April 1958. He is a married man with four children. He received minimal education, leaving school during either Year 7 or Year 8. He is able to read and write. He did various odd jobs before working as a cleaner and later as a truck driver. After injuring his back in approximately 1984 he was off work for some time, ultimately resuming as a cleaner. He subsequently worked for a security company for a few years, before commencing work as a full-time security guard for the defendant at an establishment known as “The Palms” which could be described as a Tabaret and bingo club operating on premises occupied by the entity to which reference has been made earlier. The plaintiff’s duties were those of a crowd controller. Thus, the plaintiff is a man of very limited education who has worked basically in unskilled, physical occupations.
(iii) The injury (a) The state of the plaintiff’s health prior to the injury 15 That the plaintiff had longstanding lower back pain prior to the relevant incident seems beyond dispute. He agreed with this proposition in cross- examination. There was a major episode in approximately 1982 or 1984 (the plaintiff is not a particularly good historian) which left him with back pain which lasted between approximately a year and a half and two years. He claimed that it then effectively resolved completely. There was a second episode in 1994, he having had occasional back pain in between these incidents. Following the incident in 1994 his back pain again persisted for something between a year and a half and two years.
16 It was opened on behalf of the plaintiff that he in fact suffered injury involving back pain in 1991 when he fell from a roof and following which he was on a disability support pension for a period of time, but whether this was in fact the incident in 1994 to which the plaintiff referred in cross-examination is not entirely clear. The plaintiff’s history as to the occurrence of events and the periods when he was experiencing back pain was somewhat patchy and confusing, but it would appear that the work that he did when he ceased receiving the disability pension was the security work. The plaintiff denied that he was suffering from back pain whilst working at “The Palms” in the employ of the defendant prior to the incident in question, stating that he could not remember missing any time from work there. The plaintiff believes that he commenced work with the defendant at “The Palms” in 1998. As stated, he did not seem to be a particularly good historian.
17 What is comparatively clear from documentation and medical records put before me by the defendant is that in 1996 the plaintiff described his occupation as that of a pensioner and part-time cleaner and, amongst other complaints, described himself as suffering from back pain. A report from his doctor, Dr Navani, to a life assurance company at that time referred to the plaintiff having some depression and psychiatric problems but also to him suffering from lower back pain which was long-standing and to his being “under orthopaedic surgeon”, this appearing to be Mr Bedi. In May 1997, a report from Dr Rotstein, a consultant physician, to Dr Navani referred to the plaintiff as being on a pension because of a back injury. On 4 October 1999 a radiologist reported to Dr Navani concerning a CT scan of the plaintiff’s lumbar spine performed on that day. This referred to slight disc bulging at L4/5 and some disc degeneration at L5/S1. The radiologist observed that degenerative change was evident at the lower lumbar apophyseal joints. On a date which is hard to read but is in the year 2000, Dr Navani requested a consultation with a person whose name appears to be Mr Gardiner. The reason for referral is described as “long-standing back complaint”.
18 On 6 March 2000 Dr Navani completed another request for consultation, this being to Mr Haw (the request to Mr Gardiner did note that the plaintiff had failed to attend the “last few referrals”). The reason for the referral to Mr Haw was described as being ongoing back pain, with a reference to the fact that the plaintiff had been seen by an orthopaedic surgeon a few years ago and another opinion was now being obtained. A CT scan of the lumbar spine was enclosed. Later in 2000 the plaintiff underwent radiological examination of both knees and hips, with nothing of great significance being recorded. There was a request for consultation with Mr Gardiner in relation to the plaintiff’s knees, but also with reference to ongoing back problems. The date of this request was 15 August 2000. Dr Navani appears to have completed a medical certificate for Centrelink following examination on 2 November 2000. He certified the plaintiff as being unfit for work from that date until 31 December. He described the plaintiff as suffering from lower back pain with long-standing degenerative changes, also stating that the plaintiff was unable to lift or walk for a long time.
19 On 4 May 2004, which is the day after the relevant accident, at the request of Dr Navani x-rays were taken of the plaintiff’s cervical spine and lumbosacral spine. The x-ray of the lumbosacral spine revealed a loss of lumbar lordosis and moderate narrowing of the L5/S1 disc space. There were also mild spondylitic changes at T12/L1. Of course, this was performed after the occurrence of the relevant accident but the changes detected are of potential relevance in relation to the state of the plaintiff’s back as at the time of the fall. On 6 May 2004 the plaintiff underwent a CT scan of his lumbar spine which revealed some gaseous disc degeneration at L5/S1, and on 21 July 2004, he having been referred to Mr de la Harpe, the plaintiff underwent an MRI scan of the lumbar spine. The conclusion of the radiologist was that there was minor disc degeneration at T11/12, L4/5 and L5/S1 without focal disc protrusion or significant central or foraminal stenosis. Again, the presence of some pre- existing disc degeneration would appear to have been confirmed.
20 I am satisfied that the plaintiff had a history of incidents of back injury and periods of quite lengthy back problems between 1982 and 2000. The radiological investigations would also indicate the presence of pre-existing degenerative changes. The material put before me would indicate that the plaintiff received no particular treatment or had no particular investigation in relation to low back problems between late 2000 and the occurrence of the accident on 3 May 2004.
21 It is also apparent that the plaintiff had suffered from depression and other psychiatric problems. There are references to these in the medical material to which I have just referred. In the history taken by Dr Michael Epstein, who saw the plaintiff at the request of his solicitors, the plaintiff has described how he became depressed with his family situation, had difficulty coping, and was referred to Dr Parekh, a psychiatrist, in April 2003. He was placed on anti- depressant medication but only saw Dr Parekh on one further occasion. The plaintiff also agreed in cross-examination that he saw a psychiatrist in approximately 1995, this being Dr Polonowita. A report from Dr Polonowita to Dr Navani was placed in evidence. That report refers to the plaintiff being extremely depressed and negative, but then making a remarkable recovery. Dr Polonowita also observed that the plaintiff appeared to be a very kind and caring person who was learning to accept his situation in life. Thus, I am satisfied that the plaintiff had suffered from some mental disorder at times prior to the occurrence of the accident in question.
(b) The injuries of 3 May 2004, their treatment and the assessments of them 22 The plaintiff suffered injury on 3 May 2004 when he slipped on a wet floor at his place of employment and fell, landing on his buttocks. He was immediately aware of pain in the back and the neck, but worked on during that day. He attended upon Dr Navani on that evening. Dr Navani organised the radiological investigations to which reference has been made. Dr Navani also organised physiotherapy, acupuncture and a back conditioning support program. He referred the plaintiff to Mr de la Harpe, orthopaedic surgeon, who saw him in July 2004. The MRI to which reference has been made was performed on 21 July 2004. Mr de la Harpe took a history of extreme back pain, and noted that the plaintiff was on medication, including Tramal injections. As the plaintiff was not improving with conservative management, Mr de la Harpe administered facet joint injections and traction under anaesthetic, these being performed on 11 September 2004. Post-operatively the plaintiff did not improve and indeed appeared to be worse.
23 Mr de la Harpe referred the plaintiff to Dr Clayton Thomas, who diagnosed a form of pain disorder, also noting that the plaintiff was taking Oxycontin twice daily together with six to eight Panadeine Forte and injections of Tramal twice weekly. Dr Thomas was of the view that the prognosis was poor, bearing in mind such things as the consumption of opioids, the use of crutches and the like. Further physiotherapy was also prescribed.
24 When reviewed by Mr de la Harpe on 1 August 2005 the plaintiff’s problems were persisting. He was on 140 milligrams of morphine per day. Mr de la Harpe also was of the view that the plaintiff seemed quite depressed and did not believe that he was a candidate for a two level fusion. Mr de la Harpe diagnosed aggravation of a pre-existing degenerative lumbar spine condition, such aggravation having been materially contributed to by employment. He was also of the view that the plaintiff had no capacity for work. He concluded that the plaintiff was considerably incapacitated with significant effects of injury on his lifestyle and ability to perform normal activities of daily life.
25 The plaintiff continued under the care of Dr Navani who, in a report of 24 October 2005, reported that the plaintiff had a severe soft tissue injury involving the cervical and lumbar spine on a background of degenerative disc disease. He also noted generalised anxiety and major depression. He described the plaintiff as being quite severely symptomatic and expressed the view that it was unlikely that the plaintiff would return to any work in the foreseeable future.
26 In March 2006 Dr Navani reported that the plaintiff remained very limited functionally, had been experiencing more frequent exacerbations of neck and back pain, and had attended the Emergency Department of his local hospital a number of times to get some pain relief. The plaintiff remained on strong narcotic analgesia on quite large doses. Dr Navani commented that the plaintiff was also chronically depressed and remained under treatment in that regard. It is apparent that he was also continuing under the care of Dr Clayton Thomas. On 9 June 2006 that doctor reported that he had reviewed the plaintiff on 7 June and noted that he was very motivated to return to some form of meaningful work. He was keen to renew his security licence as it was approaching expiry in September of that year. This improvement seems to have been short-lived.
27 The plaintiff continued under the care of Dr Navani with there being little change in his condition. He remained on long acting narcotic, analgesic and hypnotic medication and suffered from severe exacerbations of his symptoms. In early 2007 he suffered a left renal infarction, leaving him with effectively only one kidney. Whilst there is some medical support for the proposition that the kidney damage is related to the original injury and its treatment, there are also medical opinions disputing this. In his opening, Mr Tobin stated that, for the purposes of this case, the damage to the kidney was not significant save in the context of and as an indicator of the level of medication consumed. Mr Tobin stated that the kidney damage does not affect the plaintiff’s employment capacity, it having been otherwise destroyed. Given that no reliance is placed upon the kidney infarct other than it being a possible barometer of the level of consumption of medication, I shall not refer to it further.
28 Mr Fenech moved from St Albans to Kilmore and was also upon occasion attending at the Kilmore Medical Centre and the Kilmore and District Hospital. Whilst complaints of back pain were still noted at the Kilmore Medical Centre in February 2008, the doctor most frequently seeing the plaintiff continued to be Dr Navani. Dr Navani reported again twice, these reports being to the plaintiff’s lawyers on 9 June 2010 and to the Accident Compensation Conciliation Service on 14 September 2010. In each report he expressed the view that the plaintiff had no work capacity and that this was unlikely to change in the foreseeable future. He also noted that the plaintiff barely managed the basic activities of daily life. He implicated employment in the plaintiff’s condition.
29 Dr Navani also referred the plaintiff to Dr Parekh, consultant psychiatrist, who had seen the plaintiff on two occasions in 2003. He came under the care of Dr Parekh again between June and September 2004. Dr Parekh also saw the plaintiff on a couple of occasions in 2005. In his report of 22 March 2006 Dr Parekh expressed the view that the accident of 3 May 2004 caused the plaintiff physical suffering which rendered him unemployable, but also affected him psychologically with severe depression resulting.
30 Dr Navani also referred the plaintiff for treatment to Ms Lisa Costa, psychologist, who first saw the plaintiff on 5 May 2005 and diagnosed major depression with an Adjustment Disorder. When reporting in September 2007 she expressed the opinion that the plaintiff had no work capacity and that this was likely to continue indefinitely. She continued to treat the plaintiff and, when reporting on 31 May 2010, her views had not changed. This was also her view in her most recent report of 30 March 2011.
31 The plaintiff has been seen by a considerable number of examiners for medico-legal purposes. At the request of his solicitors, the plaintiff was seen by Mr Kenneth Brearley, surgeon, on 31 March 2010. Mr Brearley noted that the plaintiff walked slowly with a forward stoop and with the aid of an arm crutch. Mr Brearley diagnosed mechanical lumbar pain with intradisc damage to the L4/5 and L5/S1 intravertebral discs with nerve root irritation. He also noted significant anxiety and depression. Mr Brearley implicated employment and expressed the view that the plaintiff had no capacity to work at all, he having chronic and severe unremitting lower back pain as well as being on a variety of narcotic analgesics.
32 In relation to his physical injury, the plaintiff was seen at the request of his solicitors by Mr Russell Miller, orthopaedic surgeon, on 27 January 2011. Apart from reporting on 31 January, Mr Miller also gave oral evidence. I found him to be an impressive witness. In addition, he was provided with the surveillance material, which he viewed, and which he found to be compatible with his report, it not causing him to alter the findings or conclusions which he had expressed.
33 To Mr Miller the plaintiff presented using a walking stick in his right hand. Mr Miller’s diagnosis in relation to the lumbar spine was that of a musculo- ligamentous strain and aggravation of degenerative disease which was documented on the radiology. He regarded the plaintiff’s symptoms as chronic and entrenched, and the long-term prognosis as being poor. He implicated the accident in question. He was of the view that the plaintiff could not perform his pre-injury duties or work that involved repetitive bending, repetitive lifting, or lifting of weights of more than 5kg. Indeed, given the plaintiff’s age, education and work experience, Mr Miller did not envisage a return to work due to the work-related injury.
34 In his oral evidence, Mr Miller confirmed that he had seen the surveillance material and, having done so, did not wish to change his opinion in any way. Whilst agreeing in cross-examination that the radiological changes present in the plaintiff’s spine were changes frequently observed in the symptomatic and asymptomatic population, essentially Mr Miller did not resile from the opinions expressed in his report of 31 January 2011. Similarly, the fact that the plaintiff had suffered more extensive pre-existing back complaints than those recorded by Mr Miller, was not a fact which, when brought to his attention, caused a change of mind on his behalf. He pointed out that, in the years immediately prior to the relevant accident, the plaintiff suffered no significant ongoing back problems. Mr Miller also pointed to the “fairly dramatic increase in the level of medication” following the 2004 incident, referring to this as one of the “semi-objective markers of pain”. His overall view was expressed as follows:
“I think that the clinical management of this case will be fraught with difficulties. There will be no ideal solution. In fact, I think that there will be no good solution for it.” (T118-119)
35 Mr Miller expressed the view that the plaintiff may not be precluded from doing security work provided that he was not required to do such things as restrain people, run after them and the like. It was pointed out to him in re- examination that the plaintiff’s actual security work performed with the defendant involved considerably more than simply being static. He also stated that it was a recognised clinical pattern that a back condition can be pre-existing with a patient coping quite well with it, and then an event happens, which may be relatively moderate, and the back suddenly deteriorates. He was of the view that what had occurred in the present case fell within that pattern, Mr Miller also stated that he was very pessimistic about the future, bearing in mind the level of consumption of medication. The level of medication intake by the plaintiff would also effectively render him unemployable and, once a patient had been on that level of medication for the period of time which the plaintiff had, it would be hard or impossible to reverse the process. Mr Miller also stated that, upon assessment of the plaintiff, he had detected lumbar muscle spasm which occurs when the muscle contracts and stays contracted because of a painful focus. It is an objective sign which cannot be created by patients. I found Mr Miller to be an impressive and credible witness.
36 Mr Geoffrey Klug, neurosurgeon, also examined the plaintiff at the request of his solicitors, Mr Klug reporting on 24 March 2010. Mr Klug noticed that the plaintiff appeared to be anxious and focussed upon injury, and presented with a walking stick. Mr Klug’s conclusion was that the plaintiff sustained soft tissue injuries to the cervical and lumbar spine as a result of the relevant incident but had also developed a substantial chronic pain syndrome. Mr Klug was of the view that the plaintiff appeared to be very significantly disabled and certainly would not be able to resume the type of employment in which he had engaged previously in the security industry. Mr Klug also expressed the following opinion:
“I also feel that in regard to his physical condition, his dependence on medication and possibly in regard to functional factors alternate types of employment would be extremely difficult for him to undertake at the present time … Overall I feel his chance of, in the future, returning to any form of employment would be somewhat bleak. Lastly, I see absolutely no reason to doubt that as a result of his injury and the sequelae of such his enjoyment of the activities of daily living is substantially curtailed.”
37 The plaintiff was also examined for medico-legal purposes by doctors arranged on behalf of the defendant. Mr T.J. Russell, general surgeon, reported on 9 June 2004. He took a history of acute back pain consistent with the stated cause and regarded the plaintiff as being, at that stage, totally unfit for all employment. He again reported on 13 September 2004, stating that the plaintiff presented as a person who was in pain and that Mr Russell had no reason to doubt his history. He regarded the plaintiff as being genuine with physically based pain. The plaintiff was examined by Dr Tony Kostos, rheumatologist, on 1 July 2005. He regarded the plaintiff as suffering from a Chronic Pain Syndrome significantly influenced by psychological and social factors. He suspected that the plaintiff would not work again for non-physical reasons and that there was no permanent impairment as a result of any physical injury.
38 Mr Timothy Gale, surgeon, examined the plaintiff on 9 November 2005. The plaintiff presented using elbow crutches and was tearful. Mr Gale believed that the plaintiff may have sustained symptomatic aggravation of a pre- existing degenerative process involving the lower discs and the lumbar spine area. He also believed that the plaintiff’s subsequent progress and behaviour would indicate that he had suffered a significant Somatoform Pain Disorder of some type.
39 Mr Daryl Nye, neurosurgeon, examined the plaintiff on 23 November 2005. The plaintiff presented with elbow crutches. Mr Nye arrived at the conclusion that the plaintiff had suffered a simple fall, with, at the most, possible aggravation of pre-existing mild degeneration in the lumbar spine complicated by the development of a profound chronic pain syndrome, along with psychological reaction and possibly major depression. It appeared to Mr Nye that the plaintiff was totally incapacitated for any form of employment.
40 Mr David Brownbill, consultant neurosurgeon, examined the plaintiff at the request of the defendant on 14 December 2005. The plaintiff presented with crutches. At times he hyperventilated. Mr Brownbill expressed the opinion that the plaintiff probably had suffered some aggravation of pre-existing asymptomatic neck and back degenerative changes giving rise to local pain, on probability, by referral. Mr Brownbill reviewed the plaintiff on 2 May 2007. He walked slowly, leaning heavily on a walking stick. Mr Brownbill stated that the plaintiff’s demeanour indicated a marked emotional response with depression and noted that, from a neurological point of view, no impediment had been demonstrated on radiological examination or clinical examination to the plaintiff performing activities providing that he avoided heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting. However, by the time the marked emotional reaction was taken into account, Mr Brownbill was of the view the plaintiff did not have a current work capacity.
41 Dr Gary Davison, occupational physician, has reported to the defendant on several occasions. He initially saw the plaintiff on 5 October 2006. He reported that the plaintiff was a pleasant and cooperative historian who used a walking stick to assist with ambulation. He diagnosed chronic widespread pain syndrome. He considered the prognosis of the plaintiff’s condition to be poor, not expecting a return to work in the foreseeable future, and stating that the plaintiff as at the time of the examination had a very limited capacity for part-time suitable duties of a very sedentary and self-paced nature. He reviewed the plaintiff on 4 August 2009 and again noted the plaintiff to be a pleasant and cooperative historian who carried a walking stick. In essence, his findings on examination were the same as those earlier noted save that the plaintiff had added some weight. Dr Davidson stated that, if the worker was being truthful, it was reasonable to accept that he had chronic pain syndrome related to his employment, and directly caused by the incident of 3 May 2004. He considered the plaintiff only to have a capacity for self- paced, part-time sedentary employment with a number of physical restrictions.
42 In a subsequent letter of 29 June 2010, Dr Davison identified certain occupations, such as security officer or service station attendant and the like, which would be suitable employment for the plaintiff subject to compliance with the physical restrictions identified in his earlier reports. He concluded that the plaintiff probably had a maximum working capacity of 20 hours per week.
43 Finally, Dr Davison examined the plaintiff on 25 March 2011. The plaintiff again walked with the assistance of a walking stick. On this occasion, Dr Davison diagnosed chronic pain syndrome and opiate dependence, although he was of the view that the video surveillance undertaken revealed general movements and capacities inconsistent with the manner of presentation on 4 August 2009. Dr Davison thought it improbable that there was an ongoing physical injury, referring to the development of the chronic pain syndrome and opiate dependence. Subject to the truthfulness of the plaintiff, he considered him to have no capacity for employment as at the date of examination, and that such incapacity was likely to be indefinite. He did not believe the changes evident on radiological investigation had any clinical relevance.
44 The plaintiff had also been examined for medico-legal purposes in relation to his mental condition. Dr Michael Epstein, consultant psychiatrist, has reported to the plaintiff’s solicitors on three occasions. His first report is dated 12 May 2010 and his diagnosis as set out in that report was of a chronic moderately Severe Adjustment Disorder with depressed mood as a consequence of chronic pain, discomfort and disability. He regarded the plaintiff as having no current work capacity and with a poor prognosis.
45 Dr Epstein reported again on 2 February 2011. His diagnosis remained the same, namely a Chronic Pain Disorder with both psychological and medical factors and opiate dependence. He regarded the plaintiff as having no current work capacity. Dr Epstein reported again on 1 April 2011. A report of Dr Alan Jager, psychiatrist, who reported to the defendant on 25 February 2011 and Dr Davison’s report of 25 March 2011, together with the surveillance material, had been forwarded to Dr Epstein by the plaintiff’s solicitors in order to obtain his further views. Dr Epstein’s conclusion was as follows:
“Having taken account of the surveillance material and the opinions expressed by Dr Jager and Dr Davison, it is now my view that there is sufficient concern about your client’s credibility to call into question the information he has provided and I am now in the position of having such doubts about his credibility that I am unable to form an opinion. It may be that has an adequate explanation for this disparity. In the absence of such an explanation it is difficult to maintain my previously expressed opinion that he has a chronic Pain Disorder and a Severe Adjustment Disorder with depressed mood.”
46 Dr John Honey, psychiatrist, examined the plaintiff at the request of the defendant on 10 November 2005. He diagnosed adjustment disorder with depressed mood entirely secondary to the physical injury. Dr Honey considered that, if the plaintiff’s history was to be accepted, he was unfit for work.
47 The defendant also organised for the plaintiff to be assessed by Dr Alan Jager, forensic psychiatrist, to whom reference has been made earlier. Dr Jager first reported on 5 February 2007. Dr Jager diagnosed a major depressive disorder in partial remission, expressing the view that this was partly related to the workplace injury whilst there were also some non-work- related psychosocial stressors. Dr Jager was of the view that the plaintiff was not fit for his pre-injury duties but was fit for work. Dr Jager again reported on 24 November 2009. He again diagnosed a major depressive disorder which arose in the course of employment, also referring to non-work-related factors. He regarded the condition as being the recurrence of past depressive illness and again felt that the plaintiff was only fit for work four hours per day by reason of his mental disorder.
48 The next report from Dr Jager is dated 17 May 2010. This brief letter was for the purposes of commenting upon a vocational assessment report and was not associated with a re-examination. Essentially Dr Jager again expressed the view that the plaintiff could work on a half-time basis in certain occupations.
49 Finally, Dr Jager reported on 25 February 2001. On this occasion the surveillance material had been included amongst the documents forwarded to him. Dr Jager formed the view that it was more likely than not that the claimant’s history was not genuine and that he was feigning illness, having no mental disorder. Whether or not Dr Jager in fact viewed the video material, as opposed to reading the reports, is not clear as the terminology used by him in relation to the material is “describes surveillance of the claimant”.
50 Finally, there is the opinion of a Medical Panel pursuant to s.56(6) of the Act, such opinion being delivered on 10 December 2010. It was the opinion of the Panel that the worker was suffering from an aggravation of lumbar spondylosis, a persisting soft tissue injury of the cervical spine, and a chronic pain disorder with both psychological and medical features, currently untreated, and opiate dependence, also currently untreated, relevant to the claimed back and neck injury (of course, the plaintiff places no reliance upon the neck injury in the present application). The Panel also expressed the view that the plaintiff had no work capacity and that the situation was likely to continue indefinitely. I appreciate that such opinion is not binding in an application such as this but can be considered as part of the overall range of medical assessments.
51 Having considered the evidence of the plaintiff and that of all the medical examiners, I am satisfied that the plaintiff has suffered an organic injury to the low back. In this regard, I prefer and accept the evidence of Mr Miller, who was, as I have stated, an impressive witness whose evidence seemed to me to be logical and persuasive. He detected muscle spasm, an objective sign that cannot be feigned. I accept his opinion that what had occurred in the present case fell within the recognised clinical pattern of a back condition which is pre-existing but with which a person is coping quite well until an event happens which causes a sudden deterioration. I accept his diagnosis of a musculo-ligamentous strain and aggravation of degenerative disease established by the radiology. Essentially, his view is in accordance with that of Mr Brearley who also diagnosed mechanical lumbar pain, whilst referring to intradisc damage at L4/5 and L5/S1. Mr Klug has also referred to soft tissue injuries to the lumbar spine being sustained as a result of the incident, although referring to the development of a substantial chronic pain syndrome. The opinion of Mr Miller is also consistent with that expressed by the treating orthopaedic surgeon, Mr de la Harpe, as early as October 2005 to the effect that the injury was the aggravation of a pre-existing degenerative lumbar spine condition and with that of Mr Gale, examining on behalf of the defendant. He raised the possibility that the plaintiff had sustained symptomatic aggravation of a pre-existing degenerative process involving the lower discs in the lumbar spine area. In summary, I am of the view that the plaintiff sustained a soft tissue injury to the lumbar spine, together with the aggravation of degenerative disease in that area.
52 Insofar as the injury is in the nature of an aggravation, in accordance with the authorities it is the aggravated condition or injury which I shall assess. As earlier stated, I am satisfied that the plaintiff had some back problems prior to the occurrence of the relevant accident, but it would also appear that he was not suffering from symptoms of any moment, at least between late 2000 and the occurrence of injury on 3 May 2004. I accept that in those years immediately preceding his suffering the relevant injury, the plaintiff was able to work as a security guard or crowd controller and miss little, if any, time from work. I accept that the aggravation suffered on 3 May 2004 resulted in a substantial increase in his symptomatology, as described by Mr Miller, and in the consumption of considerable medication with further additional resultant problems.
53 I am also satisfied that the plaintiff has developed a dependence on narcotic medication consumed by reason of the injury which he has suffered. This opiate dependence is referred to by several of the medical examiners. In his most recent report of 25 March 2011, Dr Davison, examining on behalf of the defendant, has referred to the existence of this dependence. Mr Miller gave oral evidence concerning it. Mr Miller has referred to the fairly dramatic increase in the level of medication following the relevant incident, also referring to it as a “semi-objective marker of pain”. Dr Navani has referred to the use of heavy narcotic medication and sedatives. It is apparent from the plaintiff’s affidavit and his oral evidence that, when the pain is severe, he receives injections of Tramal medication from either Dr Navani or at the Kilmore and District Hospital. A brief report from Dr Jain, at the Kilmore Medical Centre, refers to the fact that the plaintiff suffers from chronic back ache which responds to Tramal injections administered every six to eight weeks. The Kilmore and District Hospital has a record of a number of attendances (some 16) between October 2007 and March 2011. I appreciate that some of these attendances might relate to the kidney condition. Mr Brearley has also referred to the plaintiff as taking a variety of narcotic analgesics. I am satisfied that an opiate dependence has developed and that it is a factor not to be taken lightly. I am also satisfied that this opiate or narcotic dependence relates to medication consumed by the plaintiff for his physical injury.
54 I am also of the opinion that the consequences of the plaintiff’s impairment or loss of a body function are permanent within the meaning of the Act in that they will persist for the foreseeable future. Dr Navani has referred to the plaintiff as having no work capacity and that such situation is unlikely to change in the foreseeable future. He has referred to it as being permanent. Mr Brearley has described the plaintiff’s condition as being stabilised, also referring to the fact that the plaintiff would not be able to work in the foreseeable future, thus indicating permanency. Similarly, in his report of 31 January 2011 Mr Miller referred to the plaintiff’s injuries as having stabilised, stating that his symptoms in relation to the lumbar spine are chronic and entrenched, are unlikely to resolve, and that the long-term prognosis is poor. In his oral evidence, Mr Miller expressed great pessimism about the future, bearing in mind the level of medication on which the plaintiff has been for a long time. Dr Davison described the prognosis as being “very guarded”, also stating that the plaintiff, when seen on 25 March 2011, had no capacity for employment and that such incapacity was likely to be indefinite. Whilst he included a proviso concerning the truthfulness of the plaintiff, such remarks also indicate that, if the plaintiff is accepted as being truthful, the impairment suffered by him is likely to be permanent within the meaning of the Act. That it is so permanent is something that I accept.
55 The medical evidence would point to the fact that the plaintiff has also suffered some form of reaction to his injury, which reaction has been described in various ways. Mr Brearley has described it as a reactive disorder. Mr Klug has referred to a chronic pain syndrome mainly affecting the back. Dr Thomas has referred to a form of pain disorder. Dr Navani has mentioned an associated secondary adjustment disorder, whilst Mr Miller has described an adverse mental state reaction. It is also clear that the plaintiff has had treatment from a psychiatrist (Dr Parekh) and a psychologist (Ms Costa). Various psychiatrists examining for medico-legal purposes have put their views. However, in arriving at the conclusion which I have reached, I have considered only the organic injury and the consequences, including opiate dependence, which flow from it.
56 I might add that I am satisfied that the plaintiff has suffered some form of mental or behavioural disturbance or disorder within the meaning of sub- paragraph (c) of the definition, but I am not satisfied that it is severe within the meaning of the definition. The misgivings expressed by Dr Epstein after he viewed the surveillance have given me some cause for concern, although I note that the plaintiff is under regular treatment from a psychologist, and I am also conscious of the views of Dr Navani. I say now that the plaintiff has not discharged the more demanding requirements of the definition contained in sub-paragraph (c). In any event, it is the organic injury and its consequences which I have been considering and which I shall continue to consider.
(c) Other developments since the occurrence of the injury 57 The course of the plaintiff’s medical treatment has already been described. Since the accident the plaintiff has not engaged in any employment. It is not suggested that he has been offered or undertaken any retraining or rehabilitation programs.
Ruling
(a) The organic injury suffered and its consequences (i) Pecuniary loss damages 58
I am of the opinion that the plaintiff has discharged the burden of proof in relation to leave to bring proceedings for pecuniary loss damages in respect of the organic back injury suffered by him and the impairment and consequences resulting therefrom – in other words, he has made out his claim insofar as it relies upon sub-paragraph (a) of the definition of serious injury found in s.134AB(37) of the Act.
59
I have reached the conclusion that the plaintiff’s earning capacity has been destroyed. I have so concluded for the following reasons which are not listed in order of importance or significance.
(a)
Dr Navani has treated the plaintiff over the years. In his report of 9 June 2010 he refers to the plaintiff as being quite fragile and symptomatic with chronic back pain and leg pain. He has also stated that the plaintiff has no work capacity and that this incapacity is permanent.
(b)
Mr Brearley has essentially assessed the plaintiff on the basis of his physical injury. His conclusion expressed in his report of 31 March 2010 is that the plaintiff has chronic and severe unremitting low back pain and has now no capacity to work at all. Mr Brearley has stated, “Definitely he will not work in the foreseeable future”. He has left open the possibility of some improvement in the “very long-term”.
(c)
The report of Mr Klug refers to the physical injuries sustained by the plaintiff and to the development of “a substantial chronic pain syndrome, mainly affecting his back, with referred pain into both lower limbs”. He has also referred to a soft tissue injury to the cervical spine. He has then gone on to say, “In addition to the physical disorder affecting these regions …”, giving the impression that he regards the chronic pain syndrome as being part of a physical disorder. He has also referred to the plaintiff’s dependence on medication. Further, near the conclusion of his report, he has referred to the importance of such things as weight reduction and an exercise program, again giving the impression that the physical aspects of the plaintiff’s injury and condition are receiving his attention. Mr Klug then goes on to observe:
“Overall I feel his chance of, in the future, returning to any
form of employment would be somewhat bleak.”
(d)
In relation to the plaintiff’s level of consumption of medication, Mr Miller gave oral evidence as follows:
“If you were an employer knowledgeable about his pain
medication intake, you wouldn’t employ him.”
He also stated that:
“ … Once a patient has been on that level of – approximately that level of medication for that period of time, it is hard or impossible to reverse the process.”
Both of these references can be found at T124.
Further, whilst Mr Miller arguably conceded that the plaintiff may have a capacity for some type of static security work, his conclusion in relation to capacity contained in his report of 31 January 2011 was as follows:
“Given my understanding of his age, education and work experience I do not envisage a return to work in this case due to work-related injury.”
Mr Miller also stated that the plaintiff could not perform work that involved repetitive bending, repetitive lifting, lifting of weights more than 5kg or work in which he would be required to restrain people. In other words, in arriving at the conclusions set out above, Mr Miller seems to have been considering the physical injury involved. Of course, this is a separate but additional difficulty to that created by the consumption of the narcotic medications.
(e)
The Medical Panel opinion of 10 December 2010 embraces a number of injuries, including aggravation of lumbar spondylosis, a chronic pain disorder with both psychological and medical features, and opiate dependence. Reference is also made to the neck injury which is irrelevant for present purposes. In any event, the conclusion of the Medical Panel was that the plaintiff had no work capacity and that such situation was likely to continue indefinitely.
(f)
The plaintiff was also assessed by Ms Mary Oliver, a Human Resources consultant employed by Flexi Personnel. She has expressed the following opinion:
“In my opinion, as a recruiter, Victor’s current physical limitations alone would prevent a successful return to suitable alternative employment.”
The date of her report is 3 May 2010.
(g) Whilst the observations referred to above are more current, as long ago as 10 October 2005 the treating orthopaedic surgeon, Mr de la Harpe, reported as follows: “The affects (sic) of the injury on his lifestyle and ability to perform normal activities of daily life seem to be significant and he seems to be totally incapacitated.”
Mr de la Harpe also stated that the plaintiff did not seem capable of returning to any form of work.
Earlier Dr Thomas referred to the long-term prognosis as being poor.
(h)
The above opinions coincide with the impression which I have formed of the plaintiff and his incapacity as a result of the physical injury which he has suffered and its consequences. Whilst the surveillance material viewed did not show him using a walking stick or crutches, I agree with Mr Tobin that this is not entirely inconsistent with the plaintiff’s evidence concerning the times and places in which he has to use such aids. I would refer again to the discussion of my impression of the surveillance contained in my assessment of the plaintiff.
(i) In relation to some possible exaggeration by the plaintiff, Mr Tobin referred me to the decision of the Court of Appeal in Sejranovic v Barkley Challenge Pty Ltd [2009] VSCA 108 and to the observations contained therein. These included the citing, with apparent approval, of an extract from the judgment of Neave JA in Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104. That extract, in which Neave JA was dealing with an inaccurate history given to some examining doctors, reads as follows:
“In my opinion the medical evidence, including the evidence provided by the diagnostic tests, when combined with the inference which can be drawn from the difference between the appellant’s pre- and post-accident condition was sufficient to establish on the balance of probabilities that the appellant’s inability to work was caused by that accident.”
In my opinion, in the present case there is a major difference between the appellant’s pre- and post-accident condition insofar as it relates to his low back. Further, as in Sejranovic, if the plaintiff’s credibility has been compromised, it is not so compromised that, in the face of the evidence otherwise existing, the application should fail.
(j)
It has been asserted, and not contested, that the plaintiff’s claim for statutory benefits was accepted, and that he remains upon weekly payments of compensation as for total incapacity. I note that his original claim form of 11 May 2004 referred to the injuries suffered as being “bad headache, painful neck & spine all the way down” and the parts of body affected are described as “neck/back/head”. In other words, the claim that was accepted was in relation to physical injuries, and it is on the basis of this claim that weekly payments of compensation as to total incapacity continue to be made. In this regard I would refer to the decision of the Court of Appeal in Ansett Australia Ltd v Taylor [2006] VSCA 171 and to the observations of Ashley JA in paragraph [40] thereof.
60 In summary, on the basis of my impression of the plaintiff, combined with the evidence set out above, I am of the view that his earning capacity has been destroyed by the physical injury which he has suffered with its resultant impairment and consequences. Thus, the requirements of s.134AB(38)(e) have been met. There was no argument of any substance, if at all, in relation to s.134AB(38)(g) but in any event I would find that it does not operate to the detriment of the plaintiff. I am also of the view that the financial loss sustained by the plaintiff, and bearing in mind his age, is of sufficient magnitude to satisfy the requirements of s.134AB(38)(c). Accordingly, the plaintiff is entitled to leave to bring proceedings for pecuniary loss damages.
(ii) Pain and suffering damages 61 The plaintiff, having established that he is entitled to leave in respect of pecuniary loss damages, is then also entitled to leave in respect of pain and suffering damages. In this regard I would refer to the decision of the Court of Appeal in Advanced Wire and Cable Pty Ltd & Anor v Abulle [2009] VSCA 170.
(b) Injury pursuant to sub-paragraph (c) of the definition – the mental injury 62 As I understand the situation, once a plaintiff is successful in establishing that one injury suffered by him or her in a particular incident or in a particular way satisfies the criteria for serious injury, all injuries so suffered can be the subject of the proceeding in respect to which the relevant leave was granted. Accordingly, it is probably unnecessary for me to consider the plaintiff’s mental injury in isolation. As I have stated, were I required to do this I would not be satisfied that the more demanding test required by sub-paragraph (c) has been satisfied. However, as stated by Mr Tobin in his closing address and in his written submissions, the plaintiff’s primary claim is under sub- paragraph (a).
Conclusion
63 The plaintiff is successful. He has discharged the burden of proof. Leave is granted to him to bring proceedings in respect of both pain and suffering damages and pecuniary loss damages. I shall hear the parties as to any ancillary orders that are required.
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