Garley, David v Convenience Foods Pty Ltd

[2009] VCC 1784

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-08-04332

DAVID GARLEY	Plaintiff
v
CONVENIENCE FOODS PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	2 and 3 December 2009
DATE OF JUDGMENT:	14 December 2009
CASE MAY BE CITED AS:	Garley, David v Convenience Foods Pty Ltd
MEDIUM NEUTRAL CITATION:	[2009] VCC 1784

REASONS FOR JUDGMENT

Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – serious injury application – assessing physical and psychiatric consequences of injury – application in respect of pain and suffering and pecuniary loss.

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P F O’Dwyer SC and	Maurice Blackburn Lawyers
Mr C A Miles
For the Defendant	Mr A J Moulds	Hall & Wilcox
HIS HONOUR:

1          In this proceeding, the plaintiff seeks leave to commence a proceeding claiming damages with respect to both the pain and suffering and pecuniary loss consequences of an injury he sustained in the course of his employment with the defendant on 9 February 2004.

2          In the proceeding, the defendant takes issue with the severity of the consequences of the injuries relied upon by the plaintiff in the application, namely:

(i)	an injury to the lumbar spine;
(ii)	a psychiatric injury.

3          In addition, the defendant puts in issue the plaintiff’s credit, asserting that the plaintiff is an unreliable historian who has exaggerated the effect of his injuries upon his life and lifestyle.

The Plaintiff’s Evidence

4          The plaintiff relies upon an affidavit sworn on 3 June 2008, together with viva voce evidence given by him in the course of the proceeding.

5            In his affidavit, and in evidence-in-chief, the plaintiff said that:

•  he was educated at the Collingwood Technical School to Year 9 level and that he was a poor student. He said that since leaving school he had worked in a variety of labouring type jobs;[1]

•  he commenced employment with the defendant in 2003. He said that in February 2004, whilst pushing a heavy bin of spring onions weighing approximately 100 to 120 kilograms, he suffered a low-back injury;

•  Immediately following his injury, he was absent from work until 1 January 2004, at which time he attempted to return to light duties. This attempt was unsuccessful and the plaintiff has not worked since March 2004;

•  he suffered from symptoms of back pain which were present all the time, and from intermittent symptoms extending into his left leg. He said that the combination of his back pain together with his leg symptoms was such as to impose significant restrictions upon his ability to function and in particular upon his ability to work. He said he was unable to lift heavy objects, that he had difficulty performing general housework and that his symptoms were exacerbated by walking long distances. He described difficulty sleeping, in that lying in certain positions would exacerbate the symptoms in his back and left leg. He said that whilst he had good days, his symptoms had been virtually constant;

•  he had become depressed as the result of his accident and he had on two occasions, attempted to take his life. These attempts involved the plaintiff cutting his right wrist in May 2004 and attempting to hang himself in October 2004. He described problems with his mood saying he had a tendency to snap, that he would become angry and that he had a tendency to cry a lot. He said that he had problems with his memory and with sleeping. He described his present medication regime as including Epilim 500, Temazepam, Mirtazapine and OxyContin;

•  he had received treatment from a psychiatrist, Dr Theologis, which he discontinued because the pain in his back which he experienced while travelling to Dr Theologis for treatment was “so excruciating”[2] that he was unable to drive his manual car to the surgery of Dr Theologis. At the same time he said that he did not like attending to Dr Theologis:

[1]             It is clear that the plaintiff’s work history involved significant periods of unemployment, interspersed between labouring type work.

[2]             Transcript (“T”) 10

“… because I don’t think I’ve got something wrong.”[3]

[3]             T 10

6          In cross-examination, the plaintiff said that his general pattern of work since leaving school had involved periods of full-time employment interspersed with periods of unemployment. He described his drinking habits during his employment with the defendant as involving the consumption of a slab of beer per week. He said that his personal history involved the separation of his parents when he was eight, at which time he took up residence with his brother and sister-in-law. At school he said that he had behavioural problems, that he had difficulty picking up concepts and that he had attended special classes. He said that he was always in special classes and received detention for swearing and fighting. He was asked whether he completed his Year 9, and responded that he thought he did and that he found employment at the end of that year.[4] He described himself as being:

“not too bright upstairs; a clown and a slow learner”.

[4]             T 19

7          In the course of the evidence, the plaintiff was shown two videos, the first taken in October 2004 and the second taken in June 2009.

Findings as to the Relevance of the first video

8           The first video depicted the plaintiff driving a motorcar, shopping and taking his child to pre-school. It was put to the plaintiff that the activities undertaken by him in the video conflicted with the history he had given to Dr Jeanne McGivern, who examined the plaintiff on 19 November 2004 and who had obtained a history that the plaintiff drove his car because he had to, and that he had difficulty lifting his children in or out of the car and did so only as a matter of emergency.

9          In my opinion, whilst the video surveillance undertaken of the plaintiff in October 2004 did not reveal the plaintiff to be engaging in any activity which was inconsistent with the range of activity which might be expected to be within the capabilities of a person suffering from the type of injury with which the plaintiff presented, the real relevance of the surveillance evidence lay in the inconsistency between the plaintiff’s activity in driving and in lifting his child, and the history given by the plaintiff to Dr McGivern. This discrepancy is relied upon by the defendant in asserting that the plaintiff is an unreliable witness and that significant issues of credit arise in the case.

10        Mr O’Dwyer, Senior Counsel, who appeared on behalf of the plaintiff, conceded that the video surveillance could be interpreted such that the plaintiff’s credit was impugned by it. Mr O’Dwyer submitted however that the timing of the video surveillance of the plaintiff in October 2004, together with his consultation with Dr McGivern on 27 October 2004, coincided with a period in which the plaintiff was in an emotional crisis. It was put that the plaintiff had at around that time made the second attempt upon his life which failed when the rope which he was using as a noose gave way[5] and that it is not surprising that the plaintiff may not have presented as an accurate historian at that time.

[5]

11        Having regard to the fact that the October 2004 video surveillance and the assessment of the plaintiff by Dr McGivern appears to coincide with the occurrence of the “psychiatric crisis” described by Dr Theologis, I accept the submission of Mr O’Dwyer that I should not place significant weight upon any inconsistency between the history obtained by Dr McGivern and activity undertaken by the plaintiff in the October 2004 video. I accept that it is likely that the plaintiff, by reason of his emotional crisis, would have been incapable of approaching the process of providing a history to Dr McGivern in the course of a medico-legal examination with the maturity and accuracy of a person who was functioning in the absence of an emotional crisis.

Findings as to the Relevance of the second video

12        It is the defendant’s submission that the plaintiff’s reliability and credit is impugned by his evidence as to the effect which the pain from which he suffers in his neck has upon his ability to raise his arms above shoulder height.[6] It was the plaintiff’s evidence that he had difficulty lifting his arms above shoulder height and that this made brushing and washing his hair difficult.

[6]             The condition of the plaintiff’s neck is not relevant to this application and this matter arises as purely one of credit.

13        This evidence was challenged by the defendant on the grounds of credit by relying on video evidence which revealed the plaintiff washing his motorcar, in the course of which activity he raised his arms above shoulder height without apparent discomfort.

14        Whilst the plaintiff sought to explain the inconsistency between his evidence and the video surveillance on the basis that the use of an automatic washing device whilst washing his car at a car wash, did not involve him in any strenuous movement, I found this explanation to be unconvincing.

15        Whilst my opinion as to the level of activity which the plaintiff was demonstrated as undertaking whilst washing his car also fell into the range of activity which might be expected to be within the capabilities of a person suffering from the type of condition with which the plaintiff suffered in his neck, I accept that the real relevance of the second video surveillance is that it calls into question the reliability of the plaintiff as a witness.

16        When account is taken of:

(i)	the discrepancy between the plaintiff’s evidence as to the problems he has with the movement of his arms and the activity depicted in the June 2009 video,[7] together with
(ii)	the histories given by the plaintiff to a number of doctors who have examined him as to the level of his incapacity,[8]
(iii)	the discrepancy between the reason which the plaintiff gave as to his decision to stop consulting Dr Theologis, namely that this back pain prevented him from driving, and the use by the plaintiff of his vehicle in both the first and second videos

[7]             Exhibit 2

[8]             See, for example, the history given to Dr Sutcliffe at Plaintiff’s Court Book (“PCB”) 45E

I accept the defendant’s submission that the plaintiff is prone to exaggerate to some extent the level of his incapacities. Taking into account however, the impression the plaintiff made upon me as a person of low intellect,[9] together with the evidence as to the level of the plaintiff’s psychiatric illness (which I will discuss in due course), I did not form the view that in giving evidence the plaintiff engaged in deliberate obfuscation. Rather it was my impression that any discrepancy between the description by the plaintiff of his impairment and the true nature of the impairment, has its source in the plaintiff’s low intelligence in combination with his psychiatric condition and not deliberate and considered falsehood.

[9]             The plaintiff’s presentation was, in my opinion, consistent with the description of the plaintiff by Dr Cole as being of ‘borderline intelligence’ – PCB 44

The Nature and Extent of the Plaintiff’s Physical Injury

17        In making findings as to the nature and extent of the plaintiff’s physical injury, I consider that I should approach this issue with careful scrutiny having regard to the concern which I have as to the absolute reliability of the plaintiff as a witness.

18        Dr Lesley Pinto, the plaintiff’s treating general practitioner, in a report dated 11 April 2007, described the plaintiff as suffering from chronic low-back pain and left leg sciatica which was exacerbated by bending. He opined that the plaintiff was:

“totally and permanently incapacitated for the type of work for which he is

qualified.”[10]

[10]           PCB 24

19        An examination of the medical records of Dr Pinto between 10 February 2004 and 27 February 2009[11] reveals regular attendances by the plaintiff, and the prescription of significant pain control agents in the form of Panadeine Forte or OxyContin as a regular feature of the management program implemented by Dr Pinto for the plaintiff’s back pain.

[11]           In early 2009, the plaintiff moved address, ceased consulting Dr Pinto and commenced consulting Dr Stobie

20         I am of the opinion that Dr Pinto is in a good position to opine as to the level of the plaintiff’s symptoms during the period in which he acted as the plaintiff’s general practitioner up to February 2009 having regard to his opportunity to observe the plaintiff repeatedly during this period. Dr Pinto’s acceptance that the plaintiff suffers from organic pain of considerable significance, together with his continued prescription of significant pain control agents, in my opinion provides a reliable indicator of the level of the pain experienced by the plaintiff by reason of his back injury.

21        Dr Timothy Stobie, the plaintiff’s present treating general practitioner, in a report dated 26 November 2009, opined:

“David is on regular analgesic medication but could be suitable for any duties not requiring regular bending or lifting or prolonged concentration on task[s]. Any future improvement in work capacity would, in my opinion, be modest.”[12]

[12]           Defendant’s Court Book (“DCB”) 29A. Having regard to Dr Stobie’s prescription of analgesic pain control, he clearly accepts that the plaintiff is suffering from organic symptoms of some consequence

22        Dr Terrence Lim, a consultant in rehabilitation and pain medicine, who treated the plaintiff at the referral of Dr Pinto, in a report dated 19 October 2005, expressed the opinion that:

“At the time of my last contact with Mr Garley in June 2004 he was not in

any shape or form to return to work.”

23        Dr Lim described the plaintiff’s symptoms as emanating from an L5-S1 intervertebral disc injury resulting in the development of chronic pain due to:

[13]           Whilst it was submitted on behalf of the defendant that Dr Lim made use of the term “myofascial pain syndrome” to denote a non-organic pain syndrome, I interpret the description of the syndrome, by Dr Lim, appearing at PCB 34 to be the description of an organic process.

(i)	myofascial pain syndrome;
(ii)	mechanical back pain due to altered posture and movement patterns;
(iii)	increase in mood disturbance in reaction to chronic pain and disability.[13]

24        Dr V Karlov, a consultant physician, opined that the plaintiff was suffering from bilateral L5-S1 neural foraminal stenosis, worse on the left, with compromise of both exiting L5 nerve roots, more marked on the left. He opined that the plaintiff’s prognosis for recovery was virtually nil and that it was likely that he would deteriorate gradually over the years. He commented that the plaintiff had virtually no work capacity.[14]

[14]           PCB 38

25        Dr H Sutcliffe, an occupational physician, examined the plaintiff on 15 November 2009. She expressed the opinion that the plaintiff had suffered an L5-S1 disc derangement resulting in an impacted left L5 nerve root, that he had no capacity to perform manual handling occupations either now or into the future, that his condition was permanent, and that by reason of the plaintiff’s age, education, limited training and limited work experience, together with his place of residence, he had no likelihood of returning to employment.[15]

[15]           PCB 45H

26        Dr A Hadj, surgeon, in a report dated 16 August 2006, opined that the plaintiff had suffered an L5-S1 disc lesion and that he presented with neurological evidence of left radiculopathy.[16]

[16]           Exhibit D

27        Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff on 13 May 2009. He expressed the opinion that the plaintiff had suffered an aggravation of underlying degenerative disc disease as the result of his work-related injury with the defendant, and that he may have sustained a disc prolapse on the left side. After having seen the first video, he expressed the opinion that, from an orthopaedic point of view, the plaintiff’s injury was on the mild scale and that he remained fit to perform at least light physical work and clerical duties.[17]

[17]           DCB 10

28        Dr J McGivern examined the plaintiff on 19 October 2004 and on 23 July 2008. In her second report, having seen the first video, she expressed the opinion that the plaintiff had a physical capability for some form of employment in work which did not involve repeated bending or prolonged sitting. She was of the opinion that there was little likelihood that the plaintiff was capable of returning to work involving heavy lifting, repeated bending or prolonged sitting. She opined that whilst the plaintiff’s employment was limited and that he had little experience in activities other than manual work, he was capable of obtaining employment in work such as a traffic management controller or night watchman.

29        I note that in expressing their opinions, Dr McGivern and Mr Dooley relied upon the findings of an MRI scan dated 22 May 2004[18] and that neither Dr McGivern nor Mr Dooley were provided with the findings of the MRI scan taken of the plaintiff on 14 November 2007 which reported the presence of mild compromise of both exiting L5 nerve roots.[19] This report was clearly taken into account by both Dr Karlov and Dr Sutcliffe in expressing their most recent opinions. For this reason, I consider both Dr Karlov and Dr Sutcliffe to be in a better position to opine as to the present consequences to the plaintiff of the injury to his lumbar spine than Mr Dooley and Dr McGivern.

[18]           Dr McGivern opined that this MRI could explain the presence of low-back pain but not of radiculopathy in the left leg.

[19]           This MRI clearly provides a foundation for the presence of referred pain into the legs.

30        I am satisfied that the description by Dr Lim in his report dated 19 October 2005 represents an appropriate analysis both of the plaintiff’s condition at that time. The medical file of Dr Pinto, together with his report, and the reports of Dr Sutcliffe and Dr Karlov, satisfy me that there has been no substantial improvement in the plaintiff’s condition since he was last assessed by Dr Lim in June 2004.

31        No medical examiner has opined that the injury to the plaintiff’s back has not had consequences of some significance for him.[20] Considering the totality of the medical evidence, I am satisfied, after making due allowance for his unreliability as an historian, that:

[20]           Both Dr McGivern and Mr Dooley accept that the consequences have been such as to limit the plaintiff to light forms of work.

(i)	the plaintiff suffers from significant symptoms of organically-based pain in his lumbar spine and intermittent symptoms of radiculopathy in his left leg, and
(ii)	that the effect of the plaintiff’s symptoms is such that they preclude him from anything other than the lightest forms of employment.

The Nature, Extent and Consequences of the Plaintiff’s Psychiatric Injury

32        Although the defendant took issue with the evidence given by the plaintiff that he had made two suicide attempts; the first in May 2004 and the second in October 2004, Mr Moulds, who appeared on behalf of the defendant, did not, in closing submissions, contest the plaintiff’s evidence in this regard. Even in the absence of any such concession made by the defendant, I accept the plaintiff’s evidence on this issue.[21]

[21]

33        In the absence of any past psychiatric history, I am satisfied that the plaintiff’s suicide attempts provide cogent evidence that he has suffered a psychiatric injury of considerable consequence as the result of his work related injury. In deciding whether it is appropriate to describe this condition as being “severe” as characterized by the provisions of the Accident Compensation Act 1985 however, it is necessary to consider the medical evidence as to the plaintiff’s current psychiatric condition.

34        Dr E Theologis, in a report dated 23 September 2005, expressed the opinion that the plaintiff had developed a significant mood disturbance, irritability, anxiety and general demoralisation, by reason of his pain, loss of function and inability to work.

35         Mr Stephen Stern, a consultant psychiatrist, in a report dated 27 October 2006, expressed the opinion that the plaintiff was suffering from a Major Depressive Disorder, that he required long-term psychiatric treatment but that, from a psychiatric aspect alone, he was fit for work.

36        Dr Edward Cole, in a report dated 21 October 2009, opined that the plaintiff was suffering from a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, which disorder stemmed from the plaintiff’s injury at work and its consequences.

37        In a further report dated 29 November 2009, Dr Cole opined, as to the plaintiff:

“Psychological factors are making a significant contribution to his incapacity. He has despaired of finding work, is chronically depressed and has regressed to a stage where he has become unduly dependent upon others. Even before he suffered his back injury he was only marginally employable and is now completely incapacitated not only as the result of his physical injury, but also because of his emotional response to that injury.”

38        Dr Alan Jager, a psychiatrist, in a report dated 24 October 2004, expressed the opinion that the plaintiff’s psychiatric condition rendered him unfit for pre- injury or alternate work duties. In a supplementary report dated 9 December 2004, Dr Jager modified his previous opinion, commenting:

“If one accepts Dr McGivern’s conclusion that the report of severe pain is not caused by a back injury, then his psychiatric condition is not related to any back injury.”[22]

[22]           DCB 30

39        In a further report dated 2 July 2009, Dr Jager opined that the plaintiff was presenting with an Adjustment Disorder with Depressed Mood or a partially treated Major Depressive Disorder. He opined:

“His emotional distress renders him unfit for regular employment. I consider that to be a function of his depressive illness and personality dysfunction. The personality component is unrelated to employment. The depressive illness may be partially related to employment, depending on the source of the back injury.”

40        In assessing the consequence of the plaintiff’s psychiatric injury at the present time, I am of the opinion that the medical reports of Dr Theologis and Dr Stern are of only marginal assistance, having regard to the significant period of time which has elapsed since their assessment of the plaintiff. For this reason, in assessing this aspect of the plaintiff’s presentation, I consider it appropriate to rely upon the opinions expressed by Dr Cole and Dr Jager.

41        I interpret Dr Cole’s report as expressing the opinion that, by reason of the plaintiff’s emotional response to his injury, the plaintiff has lost any capacity to engage in employment which is likely to be open to him.

42        I interpret Dr Jager’s opinion to be of similar effect to that of Dr Cole, with the proviso that Dr Jager’s opinion in this regard is dependent upon a finding that the plaintiff suffered a significant organic injury to his back in the course of his employment with the defendant. For the reasons I have expressed earlier, I am satisfied that this is the case. In these circumstances, I interpret Dr Jager’s opinion as at July 2009, to accord with that expressed by him in his report of 28 October 2004, namely that the plaintiff’s psychiatric condition renders him unfit for pre-injury or alternate work duties.

Conclusion

43        I am satisfied that the consequences of the psychiatric injury suffered by the plaintiff by reason of the duties performed by him in the course of his employment with the defendant, which caused the plaintiff to suffer an injury to his lumbar spine in the form of a L5-S1 disc lesion, are such as to be appropriately described as being a severe psychiatric injury, the effect of which has been such as to render the plaintiff totally unemployable. As such the loss of earning capacity consequences of the plaintiff’s psychiatric injury satisfy the criteria established by the Act in that, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, they may fairly be described as being more than serious to the extent of being severe.

44        I am satisfied that the plaintiff’s psychiatric condition is permanent and that he has no prospect of re-training or recovery which would enhance or alter his employment prospects. In these circumstances, I am satisfied that the consequences of the plaintiff’s psychiatric injury are such that they are appropriately described as being severe both as to their effect upon the plaintiff in respect of pain and suffering and also loss of earning capacity. For these reasons the plaintiff is entitled to leave to commence proceedings claiming damages for the pain and suffering and loss of earning loss consequences of the injuries sustained by him in the course of his employment with the defendant and I will make an order granting the plaintiff the leave which he seeks in this application.

45        I will hear the parties as to the precise form of the orders sought and upon the issue of costs.

- - -

This position is supported by: 

• a referral letter dated 26 October 2004 from the plaintiff’s general practitioner, Dr Pinto, to a psychiatrist, Dr Theologis, which describes an attempted suicide by hanging which had occurred approximately one week earlier;

• a report by Dr Theologis to the defendant’s workers’ compensation insurer dated 27 October 20045 in which he opined that the plaintiff was undergoing a psychiatric crisis at that time and was at a significant risk of harming himself.

course of cross-examination and made no further challenge as to the occurrence of that event.

Mr Moulds examined the scar to the plaintiff’s wrist associated with the first suicide attempt in the occurrence of the second suicide attempt.