Flower v Cowes Smash Repairs
[2016] VCC 1591
•28 October 2016
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-04350
| STEVEN FLOWER | Plaintiff |
| v | |
| SHAUN ANTHONY DEAN and TINA ELIZABETH DEAN (trading as COWES SMASH REPAIRS) | First Defendants |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 13 and 14 April 2016 | |
DATE OF JUDGMENT: | 28 October 2016 | |
CASE MAY BE CITED AS: | Flower v Cowes Smash Repairs & Anor | |
| MEDIUM NEUTRAL CITATION: [First revision 23 November 2016] | [2016] VCC 1591 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – closed head injury – mental disorder – whether psychiatric injury had severe consequences – credit
Legislation Cited: Accident Compensation Act 1985, s135AB(16)(b); s134AB(37)(c)
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with Mr G Wicks | Maurice Blackburn Traralgon |
| For the Defendants | Mr P B Jens QC with Ms M Tait | Minter Ellison |
HIS HONOUR:
1 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment with the first defendants on or about 27 July 2009. The plaintiff claims to have suffered a permanent severe mental disturbance or disorder in the nature of a Somatoform Pain Disorder.
2 The application is brought pursuant to the definition of “serious injury” contained in s134AB(37)(c) of the Act, to wit:
“(c)severe long-term mental or severe long-term behavioural disturbance or disorder.”
3 Leave is sought in respect of pain and suffering and loss of earning capacity.
4 The plaintiff alleges he suffered injury to the back of his head when he was performing some work beneath the bonnet of a motor vehicle when the bonnet fell. It is also alleged that one of the gas struts which had been holding the bonnet in position had projected obliquely forward and hit him on the left side of the face in the area of his left eyebrow and left cheek near his nose. The injury occurred at approximately 8.30am. He alleges he was able to complete his work and was able to drive himself home and, at that stage, he was not in pain.[1]
[1]Exhibit “E”, Affidavit 28 April 2015 at paragraph [6]
5 On the day after his injury, the plaintiff had pain in his head and neck and his face was swollen and his left eye was nearly closed. His general practitioner had a clinic in Wonthaggi and he was sent for an x-ray and referred to a physiotherapist. He kept working for about another week, but ceased work because of continuing neck pain and a feeling of pressure in his head.[2]
[2]Exhibit “E”, Affidavit dated 28 April 2015 at paragraph [7]
6 The plaintiff claims that he has been unable to engage in any employment since that time and that a range of domestic and other recreational activities have been significantly curtailed.
7 The plaintiff was the only witness called to give evidence and be cross-examined. In addition, he tendered two affidavits, sworn 28 April 2015 and 21 March 2016.[3] He was cross-examined and re-examined.
[3]Exhibit “E”
8 Both parties tendered a number of medical reports, all of which I have read. In addition, the defendants tendered surveillance material which will be referred to.
The issues
9 Senior Counsel for the defendants identified the issues as follows:
· First, the diagnosis of work-related Somatoform Disorder is based on the plaintiff’s subjective complaint of symptoms and that because of matters of credit, alternatively, reliability, the plaintiff’s medical material is significantly compromised.
· Secondly, there is an issue as to whether the admitted soft-tissue injuries have in fact been a cause of the Somatoform Disorder.
· Thirdly, if there is a causal link, it is contended the disorder is not “severe” as required by the Act.
Background
10 The plaintiff was born in July 1954 and is aged sixty-two. He attended the Echuca Technical College until the end of Year 7 and left school, aged fifteen years. He completed a four-year apprenticeship as an automotive spray painter and has held various positions in this trade over the years. In 1993, he commenced employment with the first defendants as an automotive spray painter, and remained in that employment for the next sixteen years.
11 On 27 July 2009, he was injured in the course of his employment as a spray painter with the first defendants while looking under a car bonnet to find a spray paint number, when he was struck by a strut on the bonnet as it unexpectedly descended. He completed work that day, but on the next day, he had pain in his head, his face was swollen and his left eye was nearly closed. He also had pain in his neck. He first sought treatment from a physiotherapist, Mr Bob Wong, on 30 July 2009 and soon thereafter from his general practitioner, Dr Stanley Rajasooriar, on 30 August 2009. He kept working for approximately another week, took long service leave, but was unable to return to work thereafter.
12 At the time of the injury, the plaintiff was the president of the Gippsland Veteran Riders Association, and was the inaugural president from about 2007 until approximately 2011. Prior to the injury, he was a regular veterans and masters cycling racer and, over the years, had won many trophies. He had been cycling since approximately the age of fifteen. At the time of the injury, he was aged fifty-five.
13 At the time of presenting to Mr Wong, the plaintiff reported he was constantly sore in the neck, was getting headaches and his head felt heavy. He also reported blurry vision and pins and needles down his left arm. Thereafter, his symptoms reported to the physiotherapist varied, including: coldness in the left arm, ongoing left arm pain, pins and needles in the hands, legs, lips, bums (sic), numbness in the face and difficulty swallowing, ongoing blurry vision, difficulty opening his eyes, confusion, headaches, unsteady gait, nausea, pain in the sternum and lower back, radiating leg pain and pins and needles, blood in one half of his left eye, and difficulty speaking and slurred speech.[4]
[4]Exhibit “P”, PCB 61-62
14 The plaintiff’s then treating general practitioner, Dr Rajasooriar, first treated the plaintiff on 30 August 2009. At the time, his main complaints were similar: feeling muddled in his thinking, headaches, pins and needles all over his face, hands and legs, sharp pain in neck and shoulders, nausea and stomach upset and weakness in the arms and right leg.[5]
[5]Exhibit “N”, PCB 56-57
15 Dr Rajasooriar referred the plaintiff to neurologist, Dr Hjorth, in September 2009 and for a second opinion from Associate Professor Phan, in October 2009, both of whom were unable to explain his symptoms on a physical basis.[6]
[6]Exhibit “M” and Exhibit “F” respectively
16 As a consequence, Dr Rajasooriar referred the plaintiff to psychologist, Mr John Redman, who first saw him on 6 November 2009.[7] His diagnosis was one of: “Pain Disorder 307.89 TR … (DSM-IV)”.[8]
[7]Exhibit “Q”, PCB 82
[8]Exhibit “Q”, PCB 82
17 As at 5 July 2011, Mr Redman noted a background of the plaintiff having been in a ten-year relationship with a former partner and had been with a current partner for eight years. He played the guitar before and after the accident. At that stage, the Victorian Rehabilitation Centre recommended that the plaintiff have “a full neuropsychologist assessment”.[9] Mr Redman recommended that the neuropsychological assessment proceed as soon as possible.[10]
[9]Exhibit “Q”, PCB 84
[10]Exhibit “Q”, PCB 84
18 The plaintiff tendered in evidence a Neuropsychological Assessment Report from the Victorian Rehabilitation Centre which reported on an assessment that took place on 21 and 22 July 2011.[11] At that time, the plaintiff was living with his fiancée of eight years, Sandy, and felt well supported in that relationship, but related that things had been difficult, at times, due to stressors related to the accident. He also reported support from his father, and from friends, particularly in the cycling community. Dr Heidi Newitt also reported:
“Since the accident, [the plaintiff] has tried to occupy his time with chores at home, playing his guitar, walking his dogs, meditation, riding his bike, volunteer work at a bike shop, and attending and managing local cycling events (as the President of the local Veteran’s Riders Club), all to varying degrees of success.”[12]
[11]Exhibit “J”, PCB 27
[12]Exhibit “J” PCB 28
19 Within the body of the report, Dr Newitt stated the plaintiff had attended on three consecutive days before interview and assessment. She noted that at each session:
“… he was alert and well oriented. Mood was dysthymic and effect reactive … .
…
Speech was verbose and tangential (requiring prompts to keep in track) but was otherwise unremarkable. [The plaintiff] was pre-occupied by his pain symptoms and detailed these at each session. Nevertheless, he was able to concentrate during testing with short breaks every half an hour. He did require repetition of lengthy or complex verbal instructions. He appeared motivated to perform well and was interested to learn of his results.
He tackled tasks in an organised, methodical manner however if he became ‘confused’ he found it difficult to re-commence despite encouragement … . He seemed anxious when being put under time pressure.”[13]
[13]Exhibit “J” PCB 28
20 At that time, the plaintiff detailed many physical symptoms, which had varied in frequency and intensity since his accident:
“These include pain (dull or sharp), headaches, dizziness, numbness, tingling, increased breathing rate, fatigue, heart problems, fainting, incoordination, cramping, electric shocks, and blood leaking from his eyes. [The plaintiff] noted that Neurologists and heart specialists had assessed him and there were no neurological or cardiac reason for the aforementioned symptoms.”[14]
[14]Exhibit “J” PCB 29
21 The plaintiff also reported:
“… having nightmares, having periods of being short tempered or overwhelmed, confusion when too many people are talking, having poor attention and concentration, being forgetful, and having difficulty reading as words go fuzzy or don’t make sense.”[15]
[15]Exhibit “J” PCB 29
22 He added that making speeches at riding events is getting more difficult as he gets confused and cannot keep track of what he has and has not read.[16] Overall, he said that the more he has to do, the worse he becomes.[17]
[16]Exhibit “J”, PCB 29
[17]Exhibit “J”, PCB 29
23 Dr Newitt related:
“Formal neuropsychological assessment at approximately two years post accident has revealed some significant cognitive difficulties as follows:
·Auditory verbal attention span and working memory is severely reduced
·Visuo-spatial working memory is severely reduced
·Divided attention is severely reduced
·Information processing speed is mildly reduced
·Mental arithmetic is severely reduced
·Visuo-logical reasoning is mildly reduced
·New learning and short term memory for auditory verbal material is profoundly reduced
·Executive function (planning, organisation, problem solving, self-monitoring) is reduced on complex or unstructured tasks
[The plaintiff] demonstrated strengths in attention, new learning and short term memory for visuo-spatial information, general intellectual abilities and executive skills on simple, structured, untimed tasks.”[18]
[18]Exhibit “J”, PCB 31
24 Thereafter, Dr Newitt related:
“Feedback of the assessment results was provided to [the plaintiff] on 27th of July 2011. It was discussed that the cognitive difficulties found on testing cannot alone be attributed to the closed head injury that he sustained as a result of this work place accident: His reduced performances on testing are too significant to be attributable to a mild closed head injury sustained two years ago. Rather, significant and ongoing cognitive difficulties can be correlated to chronic pain, and cognitive complaints can persist for months and even years as pain symptoms persist.”[19]
[19]Exhibit “J”, PCB 31
25 Finally, it was related:
“[The plaintiff] described some good coping strategies that he has developed and practices with good effect. I am aware he reads a lot about pain symptoms and is interested in the condition.
I hope [the plaintiff], perhaps with assistance from his Clinical Psychologist, can be further educated and reassured to know that his mild closed head injury from two years ago is not a significant cause of his current cognitive profile.”[20]
[20]Exhibit “J”, PCB 32
26 At approximately the same time, the defendants had the plaintiff assessed by neuropsychologist, Ms Faye Simpson, who reported on 30 August 2011.[21] The plaintiff related, at that time, that prior to the accident, he had been involved in competitive motor racing and cycling:
“With the insurer’s permission he had been volunteering help at the local cycle shop on a weekly basis. He had ceased these activities as they aggravated his headaches and generalsoreness (sic) and he found it difficult to manage multiple conversations commenting it was ‘just too much input’”.[22]
[21]Exhibit 7, Defendants’ Court Book (“DCB”) 30
[22]Exhibit 7, DCB 31
27 As to his current symptoms, the plaintiff related:
“• Headaches, bleeding into eyes
• Tinnitus, a sensitivity to light and noisy environments
• Depression, irritability and feelings of aggression
• ‘Dullness’ of vision and a tendency for his eyes to close
• Intermittent muscle spasms on both sides of the face
• ‘Tingling sensations’ around his upper body more so on the left
• Intermittent dizziness
• Confusion with ‘Bill paying’.”[23]
[23]Exhibit 7, DCB 31
28 On examination, Ms Simpson recorded:
“[The plaintiff] walked easily and presented in casual dress. He was fully oriented and an adequate historian. His speech was normal in character and comprehension skills supported an adequate level of communication. There was no evidence of fatigue at the end of a 3 hr. assessment. His mood state was dysthymic (depressed) and low levels of Drive were observed … .”[24]
[24]Exhibit 7, DCB 32
29 The plaintiff was administered a range of intellectual and memory tests: Wechsler WAIS-4, WMS 4 selected subtests, Complex Figure, Coordination tasks after Luria, Word Fluency, Stroop and DASS 21 mood scale.
30 Under the heading “Effort Indicators”, Ms Simpson related:
“Using the embedded effort indicators contained within the Wechsler scales (table 6) considerable doubt was raised in relation to client ‘effort’ during testing and whether or not the results reflected a true cognitive profile. On the basis that (i) a disorder of ‘Drive’ appeared to be operating, (ii) history and clinical condition were inconsistent with the results and, (iii) insufficient background information was available to support any causal link between details of injury, MRI’s and subsequent management, the reliability of the results must be considered doubtful. The preferred interpretation is that the client has significantly exaggerated any condition. Since it is important that a general congruency exists between history, injury, behaviour and tests results, the presence of some other pathological process cannot be fully ruled out. It is strongly recommended that a neurological opinion is sought to help clarify this case.”[25]
[25]Exhibit 7, DCB 34
31 In her summary section, Ms Simpson related that the plaintiff:
“… presented as dysthymic with low Drive and readiness to ‘affirm’ any queried complaint. The neuropsychological profile indicated a pre-morbid ability in the average range with many functional areas in the low-average range. A range of mild executive deficits were identified – low-average processing speed and reduced verbal and spatial reasoning ability, borderline working memory and moderately impaired general memory. Clinically, insight appeared to be relatively well preserved. Self-regulation and monitoring difficulties were also evident. A screen for emotional adjustment indicated the presence of moderate depression and mild anxiety.”[26]
[26]Exhibit 7, DCB 34
32 Ms Simpson’s overall impression was as follows:
“[The plaintiff’s] cognitive profile is not consistent with the history of a minor head injury and the test profile appears to be based on an exaggerated performance.”[27]
[27]Exhibit 7, DCB 35
33 When questioned whether, in her clinical opinion, the plaintiff could return to work in his pre-injury duties and hours, Ms Simpson replied:
“Yes to modified duties, but he is unlikely to perform such work.”[28]
[28]Exhibit 7, DCB 36
34 The treating psychologist, Mr Redman, reported on 16 July 2012.[29] At that time, he was in receipt of the reports of Ms Faye Simpson and Dr Newitt referred to above. Further tests were carried out on 15 and 22 June 2012. The Kessler Psychological Distress Scale (K-10) showed a reduction in nervousness and depression for the plaintiff with one scale, that is, not nervous and a little depressed.[30] The Depression Anxiety Stress Survey-21 produced:
“… normal anxiety, depression and stress totals. The items standing out were over-reacting, some trembling, lack of positive feelings and feeling not worth much as a person. He reflected that fatigue was a major factor contributing to the above.”[31]
[29]Exhibit “Q”, PCB 87
[30]Exhibit “Q”, PCB 88?
[31]Exhibit “Q”, PCB 88
35 Mr Redman’s opinion at that time included:
“There are some contradictions in the above assessments. For example, [the plaintiff] claims not to be nervous, but in fact he is very vigilant about movement and awareness of body signals leading him to interpret them negatively. As Dr Jager wrote, ‘a healthy looking man who was worried and had rapid, over inclusive thought form with negative content, i.e cloudiness, dizziness, etc.’ It appears to be somatization as assessed by Dr Jager. During his therapy here and with other health professionals a cause for the symptoms has been sought.
He has seen a neurologist, neuropsychologist, has had extensive inpatient rehabilitation and continues with physiotherapy and psychology. I do not believe he could return to automotive spray painting. Rather, I believe he needs mentoring to follow up computing and youth work interests so that he could be less stressed by the current situation which exacerbates his tendency to worry about ill health symptoms. The treatment for somatization is to help him to re-frame complaints about his body to link the symptoms with his moods and life stresses, eg. shortage of money, dissatisfaction at home (renovations) loss of bike riding and the associated social network. He is rebuilding his connections through the church and learning to cope better socially.”[32]
[32]Exhibit “Q”, PCB 89
36 The treating clinical psychologist, Mr Redman, reported next on 6 February 2013.[33] The plaintiff had been attending on a regular basis up until that time. Mr Redman related:
“During those visits, [the plaintiff] was encouraged to continue being active and to pace himself to avoid excess fatigue and pain.
…
Treatment … was directed at reducing stress and moderating activity. Thus, he limits his visits to church groups and nursing home, and limits playing the guitar. He becomes despairing at his difficulties with staying on task and is often pre-occupied wondering ‘What is wrong?’ Also, he does not believe medication would help his ‘neuropathic pain’. He uses meditation and relaxation to lower the impact of pain and staying calm.”[34]
[33]Exhibit “Q”, PCB 85
[34]Exhibit “Q”, PCB 86
37 The Paulhus Deception Scales (PDS) were reported as follows:
“Whilst the PDS results did not show him to be malingering, it indicated he tended to exaggerate and be pre-occupied with his painful condition. On the other hand, he felt he wanted to help others and spent time in church groups assisting people. He no longer participated in his favourite sport of bike racing.”[35]
[35]Exhibit “Q”, PCB 86
38 Mr Redman recommended that he continue to have psychological assistance at least once a month and that he did not have the capacity for employment.[36]
[36]Exhibit “Q”, PCB 86
Psychiatric opinion
39 The plaintiff tendered three reports of medico-legal psychiatrist, Dr John Gill, dated 19 September 2012, 12 February 2016 and 11 March 2016,[37] a report of Dr Stephen Adlard, dated 10 April 2013[38] and a Medical Panel Opinion dated 28 October 2013.[39] The defendants, on the other hand, tendered three reports from psychiatrist, Dr Alan Jager, dated 8 February 2012, 18 March 2013 and 18 January 2016,[40] together with a Medical Panel Certificate of Opinion dated 29 April 2014.[41] Dr Gill diagnosed the injury as a “Somatoform Disorder of an undifferentiated type”. As to causation, he opined:
“Given the history and chronological development of [the plaintiff’s] symptoms, I consider that the psychiatric injury is consistent with the stated cause which comprised a closed head injury with some associated soft tissue damage. However the variety and prominence of his somatic symptoms appear well out of proportion to the severity of the reported physical injury. Nonetheless there was nothing to suggest that [the plaintiff] was consciously exaggerating the symptoms he described.”[42]
[37]Exhibit “S”
[38]Exhibit “T”
[39]Exhibit “U”
[40]Exhibit 4
[41]Exhibit 9
[42]Exhibit “S”, PCB 96
40 He also considered that there was an incapacity for all work which is likely to remain permanent.[43]
[43]Exhibit “S”, PCB 96 and 110
41 In his report dated 10 April 2013, Dr Adlard considered the plaintiff was suffering from “An Undifferentiated Somatoform Disorder … whereby … the physical symptoms are in excess of what one would expect (a known medical condition).”[44] He did not think there was any evidence of intention or production of symptoms, or malingering, and he considered that there was not any “realistic work capacity currently given his condition”.[45]
[44]Exhibit “S”, PCB 118
[45]Exhibit “S”, PCB 119
42 The Medical Panel Opinion dated 28 October 2013[46] certified the plaintiff was suffering from “a Somatization Disorder, relevant to the said injuries” and that although he could not return to his pre-injury employment, he did have a current work capacity.[47]
[46]Exhibit “U” and Exhibit 10
[47]Exhibit “U”, PCB 126
43 Dr Jager, on behalf of the defendants, in his first report, took a history of the plethora of symptoms reported by the plaintiff, which was generally consistent with the histories taken by Dr Gill and Dr Adlard. He diagnosed Somatization Disorder.[48] However, as to causation, he opined:
“Psychological determinants have caused the condition which I do not attribute to employment. In my opinion, the blow to the head is a red herring and psychological factors which are constitutional, have caused the response to the fairly innocuous incident at work.”[49]
[48]Exhibit 4, Report dated 8 February 2012, DCB 4
[49]Exhibit 4, Report dated 8 February 2012, DCB 4
44 It was also his clinical opinion that the plaintiff could return to work in his pre-injury duties and hours.[50] These opinions were maintained in his two subsequent reports dated 18 March 2013 and 18 January 2016. As discussed with both Senior Counsel during final addresses, I am more inclined to accept the opinions as to causation expressed by the psychiatrists retained on behalf of the plaintiff. All medicos record a fairly innocuous trauma setting off the plethora of symptoms which probably, in my view, triggered off a pre-existing or constitutional predisposition towards the Somatization Disorder. In this light, because of the temporal connection, an aggravation or exacerbation of that pre-existing disposition can be seen as compensable, even if the main causative element is the constitutional predisposition.
[50]Exhibit 4, Report dated 8 February 2012, DCB 4
45 The severity of the condition is another matter. Senior Counsel for the defendants concedes that if the plaintiff is unable to work because of the Somatization Disorder, or is substantially unable to work, that would satisfy the definition of “severe” as contained in the Act. Further, the consistency of treatment, together with the symptoms complained of in paragraph 16 of the plaintiff’s first affidavit, could generally be regarded as prima facie evidence of a severe psychological condition.
46 Accordingly, it appears to me that the main issue in this case boils down to whether the histories relied upon by the plaintiff’s medicos are sufficiently reliable to discharge the onus of proof in this regard, compared to the opinions expressed by Jager and Ms Faye Simpson, in particular, on behalf of the defendants.
47 The defendants tendered in evidence surveillance video of the plaintiff taken on 20 and 22 May 2010, together with 3 and 4 January, 26 February and 3 March 2016.[51] The plaintiff was cross-examined on the film. It would appear that only Dr Jager was provided with the Surveillance Report which described the surveillance of the plaintiff in May 2010. Dr Jager recorded the report as follows:
“… [the plaintiff] was observed to be generally active outdoors. He was seen to ride a bicycle, enter a bicycle shop, repair a bicycle and work behind the counter of the shop, drive a motor vehicle, visit local stores, bend and officiate at a bike race meet.”[52]
[51]Exhibit 1
[52]Exhibit 4, report dated 8 February 2012
48 By way of comparison, the plaintiff, in his first affidavit, attested:
“I have been unable to return to my employment as a consequence of the various symptoms from which I continue to suffer. I have been depressed as a result of my injuries, and the fact that I have been unable to resume my long-standing employment, and engage in other activities and especially cycling … .”[53]
[53]Exhibit “E”, affidavit 28 April 2015, paragraph [12]
49 Later, in the same affidavit, he swore:
“Mr Wong and Dr Htun (sic) have encouraged me to get back into some bicycle riding, which I recommenced in early November 2014. I find that I can only ride for about 20 minutes before I suffer from increased neck pain and/or pins and needles in my hands.”[54]
[54]Exhibit “E”, affidavit dated April 2015, paragraph [18]
50 The plaintiff was cross-examined on the statements to the following effect:
Q: “What I suggest to you is that, in the material that was before the court by your affidavits, you say that you wrapped up the cycling after the accident of 2009 and only as a consequence of a recommendation from Wong and Ton did you get back to riding, recommencing in early November 2014 and that – which you did with difficulty, the riding?---
A: Yes.
Q: Then you talk about in that same paragraph, ‘Dogs for daily walks,’ and so on and light home exercises which I took you through and light weights, et cetera?---
A: M’mm.
Q: At paragraph 20, you say you keep a diary with reminders of things to do so that, as at the middle of last year, September 15, I suggest to you that you were advising the court via the affidavit that you had given up cycling, April 15 – that you had given up cycling as a consequence of that accident and you would return to it in November 14, but with difficulty?---
A: Riding the bike.
Q: Yes?---
A: Going for a ride?
Q: Yes?---
A: Yes.”[55]
[55]T62, L4-22
51 The plaintiff was then cross-examined further as follows (with respect to lawn mowing):
Q: “It is not one of the ones that you do at bowling green with the roller on it, it’s a - - -?---
A: No, it’s a ---
Q: It is the twirly one with the twirl blade like a vector?---
A: Standard mower.
Q: Yes, standard mower. Standard bush mower. I suggest to you you can do that?---
A: I probably could in pain too, yes.
Q: You probably what?---
A: I probably could.
Q: And you do the whipper snipper?---
A: I do a little bit of whipper snipping.
Q: We saw you moving on 3 March in a brisk fashion, as I say, around the car?---
A: M’mm. Yes.
Q: Appearing to move without difficulty?---
A: Yeah.
Q: You wouldn’t pay a price for that, would you?---
A: I would.
Q: What price would you pay for that?---
A: Pain.
Q: Do you know what you did after 26 February when you had the bonnet up of the car? Do you remember what you did after that? I suggest to you you didn’t go and have a rest or any like of that nature at all?---
A: I could have done. I’m not sure what – you know, what I actually did on the 26th. I’m not clear.
Q: What I suggest is that you have – between the date of the accident, July 2009 and 2014, you say that your doctors recommend you get back to cycling, you’ve ridden your bike extensively between that, that is July 09 and 14?---
A: It’s – I’m not sure, but I’ve had times I’ve ridden it off and on. It’s very off and on.
Q: I suppose everyone, if you are riding a bike, you’ve got to get off and on, but I suggest that you’ve been out on your bike in full battle gear, as it were, with Lycra, backpack on and heading off for – on the racer?---
A: I have been on the racer, yes.
Q: This is since 2009?---
A: Yes.
Q: And before 2014?---
A: I’ve had a ride.
Q: It wasn’t just an experimental thing, ‘See how I go.’ You were going out for a ride and having a go?---
A: I don’t think so.
Q: What were you doing?---
A: I was out riding – just riding, having a ride.
Q: What does, ‘Just riding,’ mean? Just demonstrate?---
A: Going – going for a ride and - - -
Q: Why would you just go for a ride if it caused you severe pain?---
A: Everything is – everything is – is instincts, exercise, rest, exercise, rest, activity, rest.”[56]
[56]T63, L1 – T64, L13
52 The plaintiff was then shown the film of 20 and 22 May 2010, which was the subject of the report commented upon by Dr Jager. The plaintiff was asked:
Q: “In the film of 20 May 2010, again the date and time are shown on the film, but what I suggest is that we saw you there in the morning of that day, 20 May 2010, in two sessions of riding a bike, and I’ll take you to those. One is when you were in full riding gear with the Lycra et cetera?---
A: M’mm.
Q: At 9.49 am for instance we saw you turning into a street which was McBride Avenue, and you got away from the photographer because there was other traffic around, but you were in full Lycra gear, and riding along?---
A: Yes.
Q: We could see you riding in a brisk manner, I suggest?---
A: Yeah, pedalling beautifully.
Q: As you would put it?---
A: M’mm.
Q: Then when you did the right-hand turn towards the end of that session, you got up in the saddle to move across?---
A: Yes.
Q: In front of the traffic to do that rounding right-hand turn?---
A: Yes.
Q: And once again pedalling beautifully, as you put it?---
A: Well, when you’ve been a cyclist for so long, you have a rhythm.
Q: (Indistinct) you could say pedalling beautifully, and this is nearly a year after the subject accident?---
A: M’mm.
Q: You came from, I suggest, your address, at that stage your address at (address given)?---
A: Yes.
Q: We saw you do at one stage, you looked behind you as you were riding?---
A: M’mm.
Q: As if to do a check behind you?---
A: Yes.
Q: I suggest that that again showed a free range of movement of the neck?---
A: M’mm.
Q: Do you agree with that?---
A: Yes, I remember that. Usually you – you don’t get off the saddle, you turn, but I have to get up off the saddle and do that now if I rode.
Q: And pedalling beautifully, were they the words?---
A: That’s – for a cyclist, yes.
Q: Even to the expert, pedalling beautifully?---
A: Professional term.
Q: Professional term?---
A: Yes, you learn from a young age.
Q: Then later on, but not much later on, at 10.50 am I suggest – before I move on, you departed that premises. In the first part of that film that we saw when you were in the full Lycra at 9.42 when that is recorded on the screen, you had come from (home address)?---
A: Yes.
Q: Amongst other places and other streets you were in, you turned into McBride Avenue, as we just discussed?---
A: Yes.
Q: How long do you say that ride was in terms of kilometres?---
A: From Kirrak Street?
Q: No, just the whole ride?---
A: Um.
Q: How long did you ride for before kicking off again later in the morning?---
A: The ride, it would be no more than 2 Km to that shop where I volunteered.
Q: Just forget the shop for a moment, I’m not talking about the shop, I’m talking about the first ride before you went to the shop?---
A: I’m not sure.
Q: You went out for a ride in all your gear, and then just rode home again. You didn’t go to the shop?---
A: Yeah. I don’t know how – I don’t know.
Q: In any event, it’s not something that was unusual for you, throw your gear on and you go out for a ride?---
A: Yes.
Q: And pedalling beautifully, and then not to be affected by it to the point where, ‘I need to rest, after that, I’ve been out for a ride, pedalling beautifully’ and with the cameraman not being able to keep up, you then go out again, and I suggest you go out at – the film showed you departing at 10.50 and this time you were wearing light blue jeans and a yellow, dark top and you were carrying a backpack on your back and we saw that - - -?---
A: Yes.
Q: - - - you were in a different outfit and with the backpack on the back?---
A: Yes.
Q: Why did you need the backpack?---
A: Probably had my lunch in.
Q: Why did you need a backpack like that to carry lunch? Having a decent old feast?---
A: Well, I could have had a jumper. I don’t know. I don’t know.
Q: You have just got not idea?---
A: No.
Q: You just put the backpack on, but this is a man that – you’ve got pain in all of the parts of the body to the degree that which you’ve put in your affidavit?---
A: Yes.
Q: This is only less than a year after the accident?---
A: Yes.
Q: You have one ride and then you go for another ride with a backpack when you don’t know why you’ve got the backpack on, as you say?---
A: M’mm.”[57]
[57]T65, L9 – T67, L24
53 The plaintiff was then further cross-examined as follows:
Q: “You rode to the shop and, when I say, ‘The shop,’ you rode to Wonthaggi, into Murray Street, Wonthaggi, turned right into McBride Avenue, correct?---
A: What I could see on the film, I’m not sure, but yes. What I’ve seen. I’m not sure.
Q: You then went to The Hub Bicycle Centre?---
A: Yes.
Q: You stayed in the bicycle shop for something in the region of three to three and half hours, was it not?---
A: Yes, possibly.
Q: Then we saw you in conversation with another male during the course of the afternoon. He had the bright yellow top on for a while?---
A: Yes.
Q: Before you cycled off, remember that?---
A: Yes.
Q: Ultimately, you had had a black top on, but then you put your bright yellow top on and you(r) riding helmet - - -?---
A: Yes.
Q: - - - and so on to finish conversing with him and then rode off?- - -
A: Yes.
Q: You have had one ride in the morning and then a second ride down to the shop. You’ve spent three to three and a half hours at the shop and then you walked – sorry, you rode along Murray Street towards the Bass Highway and back along Bass Highway, heading towards your residential address?- - -
A: Yes.
Q: You rode your bike home on that day?- - -
A: Yes, correct.
Q: All of it pedalling beautifully?- - -
A: Yes.”[58]
[58]T67, L31 – T68, L24
54 The histories given to various practitioners with respect to bike riding has varied considerably. Mr Redman recorded, on 4 December 2009:
“He rode his bike and did physiotherapy exercises.”[59]
[59]Exhibit “Q”, Report dated 5 July 2011, PCB 82
55 On 3 May 2010, Dr Garnham, took a history as follows:
“He has been able to ride, but can’t go far as the symptoms worsen, and he feels worse again after a ride.”[60]
[60]Exhibit “O”, PCB 59
56 On 9 July 2010, Dr Daniel Lee recorded:
“From a functional point of view he is able to ride his bike still.”[61]
[61]Exhibit “H”, PCB 25
57 In July 2011, Dr Newitt recorded that he was “riding his bike”.[62]
[62]Exhibit “J”, PCB 28
58 By way of contrast, Dr May Wyatt, recorded on 3 June 2011:
“[The plaintiff] says he is now avoiding bike riding, and refers to this as the advice from the pain management group. He says if he bike rides for more than ten minutes, his symptoms are worse so he is now avoiding this”.[63]
[63]Exhibit 8, DCB 44
59 On 16 July 2012, Dr Peter Blombery, recorded:
“[The plaintiff] had previously enjoyed cycling to a great degree but no longer did that. He used to cycle to many areas in Victoria as well as throughout Australia but now was no longer able to.”[64]
[64]Exhibit “L”, PCB 50
60 On 25 March 2013, Mr Jonathan Hooper recorded:
“[The plaintiff] was a racing cyclist and he has tried riding his bike, but he cannot do this now. He does have an exercise bike at home.”[65]
[65]Exhibit 3, DCB 5
61 On 27 March 2013, Dr Catherine Stark has recorded:
“[The plaintiff] has not been able to ride his bike since the accident as exercise will bring on symptoms: predominantly headache and also a number of other complaints”.[66]
[66]Exhibit 6, DCB 28
62 On 2 May 2013, Dr Owen White recorded:
“At this stage [the plaintiff’s] level of activity has diminished in that he no longer exercises regularly or works.”[67]
[67]Exhibit 5, DCB 22
63 Earlier, in cross-examination he was asked:
Q: “How is your riding now, compared to what we saw in the film? (May 2010) ---
A: It’s drastically reduced now. I don’t do so much anymore, just little bits and pieces to keep going and keep a bit of fitness and exercise. I’ve modified everything.”[68]
[68]T90, L21-25
64 Earlier in re-examination, the plaintiff was asked about riding his bike since November 2014 to the following effect:
Q: “… Have you been riding the bike for a year and a half?- - -
A: Probably up to 15 kilometres on – at times.
Q: What do you put on to ride the bike? What sort of outfit do you wear?- - -
A: I will – I will put Lycra on or shorts.
Q: And put your helmet on and so on?---
A: Yes.
Q: You have still got your – how many bikes to do you have?---
A: Probably six or seven.
Q: A couple of those a (sic) very good bikes indeed, aren’t they?---
A: Yes.
Q: You have had a ride of those, of course, in the last year and a half?---
A: Yes. Only one – only two bikes I’ve ridden.
Q: They are your good ones?---
A: Yes, a mountain bike and a road back (sic).
Q: Depending on what terrain you are going to be doing?---
A: Usually, just rail trail on the mountain bike.
Q: Yes, that’s appropriate for a mountain bike?---
A: M’mm.
Q: And on the road bike on the road?---
A: Not much, probably 5 k.
Q: Where would you do the 15 k?---
A: Up the rail trail.
Q: Yes, and - - -?---
A: Or maybe a little in the bush.
Q: Maybe what?---
A: A little bit in the bush.
Q: On your own?---
A: Mainly with Hazel, but I have been on my own.
Q: Do you find that you can ride for about 20 minutes before you suffer from increased neck pain?---
A: Yes.
Q: And/or pins and needles in the hand?---
A: Yes.”[69]
[69]T39, L29-T40, L23
65 In re-examination, the plaintiff was asked:
Q: “The current pattern of your – you still ride from time to time?”---
A: Probably, I think seven kilometres or something this year or something, ten, maybe 15. I don’t know.
Q: How long since you’ve had your last ride?---
A: I think it was just a few weeks ago. A couple of weeks ago, I think.
Q: Was that with Hazel?---
A: Hazel.
Q: Is Hazel a good bike rider or a slow bike rider?---
A: Hazel has hardly ever been on a bike.
Q: Right?---
A: But we – we ride along together.
Q: How far?---
A: It would be probably seven k lately. It may have got to ten, but I think it was about probably six or seven k.
Q: And the time before that, when was the last time before that couple of weeks ago?---
A: I think we’ve only ridden two to five times this year.
Q: Two to five?---
A: Yeah, that’s probably about all we’ve ridden.
Q: That’s a big range. Doing the best you can, how many times?---
A: I don’t know, probably maybe three, times, four times.”[70]
[70]T95, L41 – T96, L13
66 In the course of cross-examination, the plaintiff was shown film of him being involved in the organisation of a cycling race on 22 May 2010. From my observations, it appeared that he was actively involved in the organisation of the race, he appeared to move freely, was animated, and seemingly at ease. He was asked as follows:
Q: “Is there a meeting on Saturday (22 May 2010)? ---
A: Run by Eastern Vets, not my me.”
Q: Yes?---
A: By Eastern Vets. I just want (sic) along because I knew the circuit. I originally started the races out there.
Q: Yes?---
A: I went along and just helped out with our riders with the handicaps to tell them what grade to ride.
Q: On 22 May – so I’ve finished 20 May now, but we are onto that 22nd. That was the day of the event itself?---
A: M’mm.
Q: I am putting to you now that was a Saturday, but - - -?---
A: Yes.
Q: - - - in any event, the screen showed 22 May 2010 and you say you were just helping out with the Eastern - - -?---
A: Yes.
Q: What is it called? The Eastern - - -?---
A: Eastern Veterans Cycling Association.”[71]
[71]T68, L29 – T69, L10
67 Further on he was asked:
Q: And then, just going back to the 22nd again, all the action was taking place at the Kernot community centre and, to summarise it all, I suggest that it would appear that you were, in effect, in charge. When you look at that, there’s a group of people around you, officials, you’ve got the bright yellow on. You’ve got a clip board type thing in your hand?---
A: M’mm. Yeah.
Q: You are talking to some of the other what appear to be officials?---
A: Yep.
Q: And you are gesturing, like I am now with your hand and you are pointing around and with your arm straight out, up in the air and gesturing around the geography?---
A: M’mm.
Q: Do you remember seeing that?---
A: Yeah, I remember seeing that.
Q: The rest of them are all watching you?---
A: Yes.
Q: And listening?---
A: M’mm.
Q: You are pointing to the right and to the left and over with your right arm and with your clipboard in your left, and occasionally looking at the clipboard and then referring them back to the other things?---
A: Yeah.
Q: Do you agree?---
A: Yes, I agree, but - - -
Q: What I suggest is then, after, we saw – what actually were you doing there, were you explaining the course to them?---
A: Yes.
Q: Why did you need to explain the course?---
A: Because I know the area.
Q: But that’s their club?---
A: Yes, but I started it, started the club, started it out there before the accident, and I would have had a list of my riders which were probably about seven to ten, we’re just a small club, and that’s what it was about, danger points, and it always has to be discussed pre-race.
Q: You were discussing it with the other officials, weren’t you?---
A: Yes.
Q: What about the riders, that’s more relevant?---
A: No, there would have been someone giving them a briefing.
Q: So you were briefing the briefers?---
A: It would have been the handicapper I suppose, I’ve forgotten, but it’s probably the handicapper I was talking to.
Q: There was a whole group of them?---
A: Yeah, there was a – yeah.
Q: You were explaining to them the - - -?
A: The area.
Q: The problem points and danger points and that sort of thing?---
A: Yeah, yes.
Q: The course generally?---
A: Yes.
Q: How was your concentration that day?---
A: Well, I – you know, I’d – I’d get through it. I had it in front. I would try and go through the motions.
Q: ‘Go through the motions’; you did more than that I suggest. You ran the show?---
A: Didn’t run the show. I didn’t run the show. It was the Eastern Vet’s races.
Q: I’m not suggesting that you have got authority, I’m suggesting that you were telling them what to do, ‘You go this way, that way, and here are the points you’ve got to look out for’?---
A: M’mm.
Q: Then we saw you, I suggest, starting them, you were able to start – got the cyclists lined up and you were right there talking to them?---
A: I didn’t start it.
Q: You were talking to them?---
A: I didn’t give them a countdown. I was talking, I might have been talking there, but I didn’t start them.
Q: What were you doing there over at the starting line when they were ready to go?---
A: (No audible reply).
Q: You were talking?---
A: Talking about bike races, about probably that bike race.
Q: What would you be telling riders immediately before they went off, what, ‘Nice day today, boys, good for a ride’ or would you be telling them, ‘Go this way, that way and watch out for that’?---
A: ‘Be careful’.
Q: You say ‘I’ve got no authority’ so why do you get to the starting line and take over?---
A: Their marshals run the race.
Q: But why do you tell them to be careful for, you’ve got no authority?---
A: (No audible reply).
Q: Just chose to?---
A: M’mm.
Q: ‘I’ve got no authority, but I’ll go and tell them’?---
A: M’mm.
Q: What’s your answer?---
A: I don’t really know what I said.
Q: How do you get to have the authority to go over and tell them to be careful if you’ve got no authority?---
A: (No audible reply).
Q: Can’t answer?- - -
A: No, I can’t.
Q: We see you talking at the starting line and then you say you weren’t the starter, and I understand what you said there, there’s at least a countdown is there (sic), someone has a countdown and - - -?---
A: Time.
Q: Six five?---
A: They’d be setting off the bunches, the A B C and D.
Q: Did you have a timing glass in your hand at one stage?---
A: Not that I know.
Q: Then at 2.14 the other group of riders departed and we saw you conversing with others, and – I’m not sure if you recall that or not but it’s just during that time when the riders are going off?---
A: M’mm.
Q: Do you recall towards the very end of the video at 2.15, you walk back to your vehicle and – I wouldn’t call it the rear door but the tail – what’s one call it?---
A: The tailgate.
Q: The tailgate, yeah, and that’s the thing I mean, but you open that up and put things in the back of the - - -?---
A: Yes.
Q: And you went over and got a sign, or some type of sign, and were putting it into your vehicle when the video stopped, but what I suggest to you is that wasn’t the end of your activities that day. You went on with your activities and you went round to – what are they called, are they called points, along the track, where you have officials placed here and there?---
A: Yes, they’d be flat marshals.
Q: I suggest that you went around and saw the marshals at other points along the ride route?---
A: I’m not sure, I possibly did, I’m not sure.
Q: In any event, it would not be something that was beyond you to do that, that is you whatever – can you remember just before I go on, why did you need to pick up that sign that was there and put it in your car?---
A: I can’t answer, I don’t know.
Q: What use would you have for a sign?---
A: I don’t know why it was put in there.
Q: Was that a starting point sign?---
A: Possibly start and finish, I don’t know. I think it was just a banner for Eastern Vets, I don’t know.
Q: As a person who wasn’t even part of Eastern Vets, why would you be taking their sign?---
A: I don’t know.
Q: There’s obviously a reason for it?---
A: Because I don’t know.
Q: Clearly you wouldn’t be stealing?---
A: No.
Q: So it’s got something to do with something to do with something in the future, I suggest?---
A: Not to my knowledge.”[72]
[72]T72, L6 – T76, L6
68 In my view, the questions put to the plaintiff fairly reflect the activities that he was apparently performing on that day and it appeared that he was communicating and directing participants in a normal and active way.
69 In re-examination concerning this event, the plaintiff was asked:
Q: Just in relation to the event of 20/05/2010, you assisted a race meeting, is that correct?---
A: Yes.
Q: What is the name of that race meeting?---
A: That would have been an Eastern Vets club event.
Q: Is that a regular event?---
A: No, they probably had maybe four or five races out there.
Q: Is that an event that you would have normally ridden in?---
A: I would have raced in that.
Q: You weren’t riding on that occasion?---
A: No, I – yes.
Q: Indeed, have you not raced since the time of the accident?---
A: Haven’t raced since.
Q: I think you said in your evidence-in-chief, you raced almost every week, is that correct?---
A: Yes, that’s correct.
Q: At that time, that is on 20 May 2010, you were still the president of the Gippsland Veterans Association?---
A: Yes.
Q: Does that cover Kernot or the eastern Vets or are they different clubs?---
A: No, it doesn’t come – we’re different clubs.
Q: When did you relinquish your presidency?---
A: Possibly 2010 or 12. I couldn’t do it anymore. I – yes.
Q: You are not sure when, but - - -?---
A: I’m not sure exactly, but I give it a good go and – yeah.”[73]
[73]T94, L4 – L25
70 There was no mention of the plaintiff’s role in either the Eastern Veterans Cycling Association or the Gippsland Veterans Association in his affidavit. Nor is there any mention of this activity in the treating psychologists’ various reports.[74] In fact, Mr Redman refers to consequences of the accident including “loss of bike riding and the associated social network.”[75] The only reference in any of the histories is that recorded by Dr Newitt during the two or three day assessment in July 2011, wherein she recorded:
“Since the accident, Mr Flower has tried to occupy his time with chores at home, playing his guitar, walking his dogs, meditation, riding his bike, volunteer work at a bike shop and attending and managing local cycling events (as the president of the local Veteran’s Riders Club, all to varying degrees of success.”[76]
[74]Exhibit “Q”
[75]Exhibit “Q”, (supra) PCB 80 and 89
[76]Exhibit “J”, PCB 28
71 In cross-examination, the plaintiff agreed that that history was correct at that time.[77]
[77]T82, L1-12
72 It would appear from the material, that the plaintiff had been in a de facto relationship with a woman by the name of Sandy at the time of the injury and this relationship subsisted until 2012, although they were still living under the same roof until 2013. In 2014, the plaintiff began another relationship with a woman by the name of Hazel. He was questioned as follows:
Q: When did she move in?---
A: It was – it was 2014. We were friends, we were friends and she moved in thereabouts. I’m not sure exactly, but - - -
Q: It was some time in 2014?---
A: Yes, late.
Q: What about the other friend, you say you had two female friends ‘whose company I enjoy’, who was the other one?---
A: Yes, Jules was a friend, she’s still about, and the other one’s moved interstate.
Q: That’s three?---
A: Well, they were friends.
Q: Your current partner and Jules and the other one moved interstate?---
A: Yes.
Q: Were they people that you went out with or what?---
A: No.
Q: Just Hazel?---
A: Hazel – yeah, Hazel’s the only one I’ve been out with.
Q: You broke up during 2013 with Sandy and you commenced another relationship, that is with Hazel, in late 2014 and you now live together?---
A: Yes.
Q: You were able to, with all your problems that you’ve described to us, and they were described in the affidavit, you were able, in any event, to form a relationship with a new partner?---
A: Well, we got on, we got on well so we did, we formed a relationship.
Q: You were able to go out with her?---
A: We don’t go out much.
Q: You were able to go out with her, weren’t you?---
A: Yes.
Q: Where did you meet?---
A: Walking around the street, I – she walked past, used to walk past and we chatted.
Q: You’d be going one way and she’d be going the other way?---
A: Yes, that happened.
Q: Did you know her, when you –is that the way you first met her, walking up and down the street, a million faces going places walking up and down the street?---
A: Well, I’d say hello to her and she’d say hello to me, and we got on well.
Q: Takes a bit more than, ‘Hello’, ‘Hello’, to get on well, doesn’t it?---
A: I said hello to her and we are partners.
Q: Things moved on from there?---
A: Yes, it moved on.
Q: I suggest to you that you didn’t present to her as an invalid?---
A: We spoke about it, because Hazel’s had her problems too.
Q: And you, I suggest that you can go about the street with her and you hold hands and all of that sort of things?---
A: Yes, we hold hands.
Q: You stroll down the street laughing and chatting together?---
A: We would have laughed.
Q: I am saying you do it now?---
A: We do it now, yes.
Q: You go to a café, for instance, and chat away?---
A: Yes, we’ll – we’ll go and have a coffee.
Q: Like I was putting to you earlier, you could do chores in the morning and go to the shops in the afternoon with Hazel (?), laughing and chatting holding hands?---
A: We could go for a walk. We’d go for a walk and we’d go down and – if we’ve got to get a bit of shopping or something or whatever.
Q: Yes, but deal with my question. You can do your chores in the morning and then you go for a walk, hold hands, laugh and chat with Hazel, go to the coffee shop?---
A: Yes, I might.
Q: That is not unusual for you?---
A: No.
Q: You are very happy doing it?---
A: I’m happy having a partner.
Q: Yes, and you are happy doing what I’ve just described, going for a walk, holding hands?---
A: Yes.
Q: And you hold hands with – I suggest you can hold hands with her with your left hand, for instance, and lead your dog with the right hand?---
A: Yes.
Q: No problem with balance, holding hands with your partner with one hand, dog in the other and go strolling down the street, chatting away together?---
A: Yes.
Q: No even giving a thought to whether you might fall over or something similar?---
A: Takes my mind away.
Q: Across the road. There would be traffic. Make the appropriate checks, just cross the road without any concern, chat away to your partner?---
A: Yes.”[78]
[78]T37, L16 – T39, L24
73 There is no material from the treating psychologist, Mr Redman, or the treating general practitioner, Dr Overton, as to the plaintiff’s mental state in being able to initiate and maintain the relationship with Hazel. Perhaps the only hint comes from the treating psychologist, Mr Redman, when he records, on 9 January 2010:
“On the other hand, [the plaintiff] endeavoured to maintain his confidence when in company and so he did not appear to be overly depressed or stressed, but he was mostly anxious.”[79]
[79]Exhibit “Q”, PCB 82
74 Certainly, this comment was consistent with all the surveillance video shown by the defendants, in my view. There was no supporting affidavit from Hazel. This may be because the plaintiff’s solicitors were not expecting the surveillance video in cross-examination and had, accordingly, made a forensic decision not to adduce such evidence, as submitted by Senior Counsel for the plaintiff, and it may well be that the permissible inferences are of reduced weight.
75 The plaintiff was further cross-examined as to typical activities he might have been performing in or around March of this year:
Q: “I suggest you do things like that and, often times, you have a smile on your face, you are engaging in conversation with the others and, generally, of a happy disposition?---
A: Probably do that too sometimes.
Q: Yes. I suggest to you it’s regular. I suggest to you it’s regular?---
A: Yes, I talk to people.”[80]
[80]T29, L22-L27
76 Later, the plaintiff was cross-examined about continuing with his Salvation Army assistance to the following effect:
Q: “But you still continued with your Salvation Army assistance?---
A: Yes.
Q: And playing the guitar and you actually sing too, do you not?---
A: Yes.
Q: Do you still have the facility for the use of a small amplification system?---
A: Yes, I do.
Q: You still engage in that activity right up to now?---
A: Yes.
Q: What sort of playlist do you have for the Salvation Army?---
A: I have a mixture of country and blues, gospel.
Q: A bit of John Denver?---
A: Yes.
Q: And Rocky Mountain High?---
A: No.
Q: What is (sic) the John Denver ones you play?---
A: I can’t remember. I have a list. I have to read off a cheat sheet.
Q: Off a cheat sheet, is it?---
A: Cheat sheet.
Q: Do you have the music written down for you on the cheat sheet?---
A: I have words and chords.
Q: What sort of guitar do you use? The 12 string or the six string?---
A: Six.
Q: Acoustic?---
A: Yes.
Q: With amplification?---
A: Yes.
Q: In addition to that, on Thursdays at the Salvation Army, you spend time talking with teenage children who are experiencing difficulties?---
A: I did for a while, yes. I did for a while.
Q: For a while did you also attend the Salvation Army church on Sunday mornings?---
A: Yes, that’s gone.
Q: Also play songs with the guitar?---
A: Yes, three.”[81]
[81]T41, L25 – T42, L20
77 As to exercise, the plaintiff was asked:
Q: “Then you spend part of each day having some walks and exercising?---
A: Yes, I have to.
Q: Why?
A: I’m guided by physio.
Q: When you say you have to, so it’s a recommendation from your physio?---
A: M’mm.
Q: What I put to you is that you enjoy that?---
A: Exercise?
Q: Yes.
A: Yes, I do – do enjoy exercise.
Q: You do little things about the house and you listen to music?---
A: Yes.
Q: ‘Play music on my guitar and I try to keep myself busy’?---
A: Yes.”[82]
[82]T43, L3-L12
78 The plaintiff was further cross-examined about video film taken on 3 and 4 January 2016. He was questioned as follows:
Q: “Mr Flower, I suggest that the film showed you on two days there on 3 January and 4 January of this year?---
A: Yes.
Q: Is the scene that’s demonstrated in the, as shown, I should say, in the, I will call it the film, in the film footage, is that an area you recognise?---
A: Yes.
Q: What is it?---
A: It’s Packenham (sic).
Q: Do you recall that you were there on Monday 4 January this year?---
A: Possible.
Q: What would take you to Packenham (sic)?---
A: Hazel’s grandchildren.
Q: You had the three children with you?---
A: Yes, we quite often have an interest in the children.
Q: Quite often have an interest, what does that mean?---
A: Well, the family.
Q: Yes, we understand they are family, but what do you mean ‘have an interest’, ‘We quite often have an interest’?---
A: Well, we might mind them, we might visit.
Q: And then take them out to McDonald’s or elsewhere?---
A: Occasionally.
Q: Did you recognise the restaurant that you were in on that occasion?---
A: Yes, I don’t know the name of it, but I go there a bit or we go there a bit.
Q: Yes, and did you see and towards the end of the film on 4 January that you were sitting and turning and looking out the window?---
A: Yes, I did see.
Q: And gesturing with your hand, pointing to something?---
A: Yes.
Q: And then you turned to the right and then you went around and turned to the left?---
A: Yes.
Q: I suggest you were smiling whilst doing that?---
A: I smile.
Q: That day you were turning your neck much further than you have indicated here?---
A: I will strain at times.
Q: No I suggest in that film you are turning your neck?---
A: Yes, I did turn my neck.
Q: Much more than you indicated you could in this court?---
A: Yes and shoulders too.
Q: I am suggesting you turned your neck much more than you indicated you could in this court, and whilst you were doing so you were in the middle of a conversation and smiling?---
A: Yes.
Q: In other words, what I’m putting to you, that demonstrated a far greater range of movement of your neck than you have demonstrated here today?---
A: M’mm.
Q: And it appears that you were doing it without pain?---
A: I possibly had pain.
Q: Possibly had pain?---
A: I would say I had pain.
Q: But it appeared on the film, did it not, that you didn’t have pain doing that?---
A: You can’t see in the film.
Q: You can’t see pain, we appreciate that?---
A: No, you can’t see the pain.
Q: But you were smiling and talking which you agree?---
A: Yeah, I was smiling.
Q: While you were doing it. Why would you turn like that just to point to something if it would cause pain?---
A: Well, go through life with it.
Q: No, but why would you bother putting yourself through pain just to point to something?---
A: It’s everyday life. You’ve got to do things.”[83]
(sic)
[83]T49, L26 – T51, L19
79 Later, the plaintiff was cross-examined:
Q: This was not unusual for you. This was a trip to Packenham (sic) to see the grandchildren?---
A: We will – yes, we will travel to Packenham (sic). It’s an hour’s drive.
Q: And take them out?---
A: Yes.
Q: Wonthaggi to Packenham (sic), as you say, is an hour?---
A: Hour.
Q: So before the film started you had driven for an hour?---
A: I wouldn’t know.
Q: You had come from Wonthaggi?---
A: I don’t know. Did we go straight to the – there? I don’t know.
Q: Could you have gone somewhere else before Packenham (sic)?---
A: Possible.
Q: So you could make it longer than an hour’s trip?---
A: You could.
Q: No, you could?---
A: No, I usually rest. I might drive, might drive a little bit over an hour but I usually stick to an hour.
Q: All things being equal, you would say you would have gone to Wonthaggi straight to Packenham (sic) to see the kids, is that right?---
A: It’s possible.
Q: It is also possible. That means you could have been somewhere else before that?---
A: I could have been.
Q: Then you pick up the grandchildren, take them out?---
A: Yes, we do occasions.
Q: I suggest that you physically yourself pick the [children] up and put them in the car from time to time?---
A: Yes, we have.
Q: Then take them home?---
A: Yes.
Q: And spend some time there and then head back to Packenham (sic), sorry, head back to Wonthaggi?---
A: Yes, sometimes stay.
Q: With you driving?---
A: Yes.
Q: You feel quite able to drive your vehicle with three young children in the rear seat?---
A: Yes.
Q: And it doesn’t concern you at all to do that?---
A: I don’t overdo things. No, it doesn’t. I’m careful.
Q: Has nothing to do with my question?---
A: I do it.
Q: My question was, you could do that – you do that without giving it a second thought, I suggest, drive with three children in the back seat?---
A: Yes.
Q: And your partner in the passenger seat?---
A: Yes.
Q: Does Hazel drive?---
A: No.
Q: Is there a reason for that?---
A: I don’t know. She’s never had a licence.
Q: Did you say, ‘Well, I might be able to teach you’?---
A: No.
Q: Never encouraged her to drive?---
A: No.
Q: As you say, that could be just a normal part of your life that we just saw in the film? A day in the life of?---
A: To do – yeah, it’s a day in the life, my life doing - - -
Q: Nothing unusual?---
A: It happens.”[84]
(sic)
[84]T52, L1 – T53, L45
80 Later, as to film taken on 26 February 2016, the plaintiff was asked:
Q: “Having regard to the activities that were shown, first of all on what I will describe as 26 February, that was the footage of where you were in the front garden of the home, was it not, and working under the bonnet of a car?”---
A: Yes.
Q: Am I correct in saying that you have no difficulties working under the bonnet of a car in terms of any mental approach or anything like that?---
A: Short term, I will get under and fill the oil.”[85]
[85]T54, L15-22
81 Later, with respect to some film taken on 3 March 2016, it was put to him:
Q: “Yes, and I suggest that you were moving very briskly. We saw you walking with a hose up to the car, doing some work under the bonnet, dropping the bonnet, walking back and walking around to the side of the house. Do you recall all that?---
A: Yeah.
Q: And moving briskly, I suggest, and without restriction?---
A: M’mm.
Q: Do you agree?---
A: Well, I suppose so, yes.
Q: Forget about suppose?---
A: Well, yes.
Q: If you don’t agree, say so. Then is that Hazel’s house?---
A: Yes.
Q: And a well-organised garden?---
A: Yes.
Q: That is where you live too?---
A: Yes.
Q: I suggest to you it appeared that you moved without restriction when you were on the camera side of the car and bending into the bonnet? We could see you just working like a normal person would be attending to an engine of a car?---
A: Yes.
Q: With your car you say you have to check it very regularly?---
A: I do it every so often.
Q: What does that mean?---
A: Like, every - - -
Q: Once a years (sic)?---
A: - - - few weeks, it might be a month or something like that, it might be two months.
Q: It might be yesterday?---
A: Could have been.
Q: Was it?- - -
A: Yes.”[86]
[86]T55, L19-T56, L13
82 Later, the plaintiff was cross-examined with respect to his relationship with Hazel and whether Hazel had made a one-fingered gesture to a stranger while in the plaintiff’s company. He was questioned as follows:
Q: So that there is some – you are aware that she adopts a posture which someone could take some insult from sometimes?---
A: Yes, it could happen. I suppose some people could. She doesn’t realise it. She’s not doing it on purpose.
Q: Yes, so you are aware of what I’m talking about then?---
A: I know what you’re talking about, yes.
Q: And on another occasion, was it before or after that day that there was some altercation with another citizen about the gesture?---
A: It was probably a year ago in Packenham (sic), and there was a drug addict sitting on the corner who was causing a disturbance in the street, and she just happened to have her finger up like that and the woman went off her head and we just kept driving and laughed.
Q: You kept driving and laughed?---
A: Yeah, I laughed about it. I drove off. Well, we kept – we drove off.
Q: And it didn’t cause you any distress that someone was abusing and screaming at her? You just – it was a laughing matter?---
A: The law is not my – my, you know, I – I – we were heading back to the house at Packenham (sic) or something. I don’t know, but I remember the incident.
Q: My question was just that you thought it was funny. I am not having a go?---
A: Yeah, I thought it was funny at the time.
Q: It was amusing at the time that this person was a bit off her head, as it were and was starting to take offence at such a simple thing?---
A: M’mm.
Q: Is that a fair summary?---
A: Sorry, could you - - -
Q: Is that a fair summary of how you felt about that?---
A: Yes, I - - - .”[87]
(sic)
[87]T59, L28 – T60, L25
83 The histories given to medical practitioners concerning the plaintiff’s voluntary attendance at a bike shop also vary to a marked extent. In November 2010, Mr Redman records that the plaintiff gave up his voluntary bike shop work in November 2010,[88] whereas Dr Newitt records, in July 2011, that he is doing “volunteer work at a bike shop … all to varying degrees of success”.[89] Also, Dr C Stark records on 27 March 2013: “He does some volunteer work at a local bike shop and volunteers at a local nursing home, sitting with the local residents.”[90] These histories are to be contrasted with the plaintiff’s first affidavit sworn 28 April 2015:
“In late 2009 I worked as a volunteer on a part time basis at a local bike shop as I needed to be occupied. I did not last very long in that position as I was unable to properly learn how to work the cash register, and I found that I was often feeling muddled, and getting forgetful and confused.”[91]
[88]Exhibit “Q”, PCB 84
[89]Exhibit “J”, PCB 28
[90]Exhibit 6, DCB 28
[91]Exhibit “E” Affidavit sworn 28 April 2015, PCB 12 a paragraph [13]
84 The circumstances as to when and why the plaintiff ceased work as a volunteer at the bike shop are unclear. This relates not only to when the plaintiff ceased, according to the various histories referred to above, but also to the fact that the bike shop closed.[92] Similarly, the presidency of the bike association morphed into the vice-presidency at some time, and then the club virtually became defunct.
[92]T92, L2
Findings
85 I accept that the plaintiff has suffered a form of Somatization Disorder as a result of the physical injury suffered in the course of his employment when the bonnet of the motor vehicle struck his head.
86 The histories provided to the various medicos referred to in paragraphs 54 to 62 and paragraph 83 above, do stand in considerable contrast to his complaints made in the two affidavits.
87 Overall, I prefer the psychiatric evidence of Dr Jager to that of Dr Gill and Dr Adlard. Although the diagnoses and temporal elements are similar, there is marked difference in the opinions as to the severity of the condition. I am not persuaded that the plaintiff is unable to return to his pre-injury duties as opined by Dr Jager. Not only has he seen the surveillance report relating to the May 2010 activities, but having seen the films myself, and the cross-examination upon them, I consider that the plethora of symptoms and disabilities reported by the plaintiff, roughly in a contemporaneous way, do not reconcile. Further, I consider that the psychological consequences can be informed, to a certain extent, by what is retained. I find he is still able to ride his bike in an energetic way, as shown by the surveillance and by answers made in oral evidence. I find that his ability to initiate and maintain an intimate relationship with Hazel in the circumstances referred above, gravitate against a severe depression or anxiety condition. I also accept that there are contradictions on the empirical testing which tend to suggest that the plaintiff exaggerates his symptoms. I take note that there is no psychiatric treatment or psychiatric medication prescribed, and there have been no periods of hospitalisation. The plaintiff is able to continue to enjoy recreations such as playing his guitar and performing his musical skills in a semi-public forum, as referred to above.
88 In all the circumstances, I consider that the plaintiff has failed to discharge the onus of proof with respect to the severity of his condition such that he could be said to be suffering from a permanent severe mental or permanent severe behavioural disturbance or disorder and the claim will be dismissed.
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