Haggerty v Hella Australia Pty Ltd

[2016] VCC 1836

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-16-00916

THOMAS MARTIN HAGGERTY	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	8 and 9 November 2016
DATE OF JUDGMENT:	2 December 2016
CASE MAY BE CITED AS:	Haggerty v Hella Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2016] VCC 1836

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION

Catchwords:             Serious injury – injury to the spine – loss of earning capacity only, pain and suffering conceded

Legislation Cited:     Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)

Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Peak Engineering & Anor v McKenzie [2014] VSC 67; Giankos v SPC Ardmona Operations Limited (No 2) [2009] VCC 1461

Judgment:Application dismissed.                   

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr V Morfuni QC with Mr S Loftus	Henry Carus & Associates
For the Defendant	Mr R J Stanley QC with Ms C Spitaleri	IDP Lawyers

HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with Hella Australia Pty Ltd (“the employer”), in particular on 6 November 2009 (“the said date”).

2       The plaintiff seeks leave to bring proceedings for damages in relation to loss of earning capacity only, serious injury for pain and suffering having been conceded at the commencement of the hearing.[1] 

[1]Transcript (“T”) 2

3       The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:

“(a)     permanent serious impairment or loss of a body function.”

4       The body function relied upon is the spine. 

5       Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.

6       The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.

7 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.

8 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, “when judged by comparison with other cases in the range of possible impairments, …fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable”.

9       I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.  Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.

10      Loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.

11      Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.

12      Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.

13      Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.

14      I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] and Grech v Orica Australia Pty Ltd & Anor[3] in reaching my conclusions.

[2](2005) 14 VR 622

[3](2006) 14 VR 602

15      The plaintiff relied upon two affidavits and gave viva voce evidence.  He was cross-examined.  The plaintiff also relied on affidavits by his stepdaughter Claire Laverick (“Claire”), and his son-in-law, Mark Bryant (“Mark”), sworn on 18 October 2016.  In addition, both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.

The Plaintiff’s evidence

16      The plaintiff is presently aged fifty-four, having been born in May 1962.  He resides in the United Kingdom with his wife, Denise, Claire and Mark and their young child. 

17      The plaintiff is currently in Australia on a three-month travel visa, having arrived on 18 September 2016.[4]

[4]T9

18      After completing the equivalent of Form 5 in the UK in 1978, the plaintiff worked in a variety of jobs, including hotel work, until 1982.  In 1987, he travelled to Australia, where he obtained work with a metal industry company, Roblan Pty Ltd, during which time he developed skills in injection moulding and manufacturing.

19      The plaintiff worked in Australia on a travel visa.  He applied for residency at various times, but his various appeals were unsuccessful.[5]  The Immigration Department came to the plaintiff’s workplace and arrested him and he was then detained at Villawood Detention Centre because he did not have a work visa.  Over the years working in Australia, he had been issued with a tax file number and had taken out a housing loan.[6]

[5]T66

[6]T67

20      On his return to the UK in 1994, the plaintiff worked in plastics and manufacturing with his first job at Polypipe, where he supervised staff and manufactured building and plumbing products.

21      In 1997, the plaintiff obtained work as a die setter at Moss Plastics, where he gained considerable experience and training.  He then obtained a supervisory position at Owen Mumford, the British version of Hella Australia (“the employer”) in about 2002.  In 2007, he returned to Owen Mumford, where he was employed as a senior die setter.

22      In 2008, the plaintiff successfully applied for a position with the employer and moved back to Australia with his family.  He deposed that he and his family held permanent resident status and it was their goal to obtain Australian Citizenship in the future.

23      The plaintiff commenced work with the employer in Mentone on about 1 September 2008 as a shift supervisor/die setter.  More specifically, he was the team leader for the Toyota-Kaisen line.  He enjoyed this role, working in a new country, and was awarded a career development cash prize.

24      The job had been facilitated by the plaintiff’s friend, Andrew, who worked with the employer and had suggested the plaintiff come out to Australia to join him.

25      The plaintiff essentially obtained the job on his own qualifications and experience.[7]  The employer was building a new line and the plaintiff guessed it had him in mind for that job.  The employer gave him a lot of help to get here and gave him a company car.[8]  The plaintiff agreed he was keen and anxious to work for the employer which was also keen to employ him.[9]

[7]T9

[8]T10

[9]T11

26 In terms of his visa arrangements, the plaintiff could just remember the employer could “get him out as quick as it liked”,[10] and while he was working, he would be an Australian resident. He would have to be sponsored if he changed jobs and he was told that while he was tied to the employer, his residence was sound. He emailed Nola McAuliffe (“Nola”) who worked in HR with the employer before coming out to Australia and she told him the job was secure. He wanted to spend the rest of his life in Australia.[11]   He did not know the 457 Visa was for four years.[12]

[10]T11

[11]T11

[12]T12

27      It was the plaintiff’s belief that once he obtained the 457 Visa, he could stay and work in Australia for as long as he liked with his family, but he was restricted to working with the employer.  There were no problems about being made redundant as he had been assured by Nola this was very unlikely.[13]

[13]T13

28      The plaintiff initially came to Australia with his wife, Denise, in 2008.  Other family members, Claire and Mark, followed.[14]   As teachers, they could immigrate under their own steam but the plaintiff needed to be sponsored.   They planned to stay here permanently, as did the plaintiff and his wife.[15]

[14]T14

[15]T15

29      The plaintiff was fit and healthy prior to the said date, having only had minor back complaints when he was a young child. 

30      On the said date, the plaintiff was pulling a heavy cage out of a chamber when he felt an instant and excruciating pain in his upper back, left armpit, left forearm and left palm, right down to the ring and little finger (“the incident”).

31      At that point, the plaintiff knew his injury was serious.  Over the following weekend, he rested as much as possible but on the Monday, it was obvious his injury was serious and he reported it to the employer, who sent him to Michael Beasley, physiotherapist in Cheltenham.  However, that treatment caused the plaintiff even more pain.  He was advised he might have a bulging disc in his neck and was referred to a general practitioner as he did not then have one.

32      The plaintiff saw Dr Lange at the Interhealth Medical Clinic in Dingley on about 13 November 2009.  He was referred for x-rays and was prescribed painkillers.  An MRI scan was organised later that month.  Thereafter, the plaintiff was advised by Dr Lange that he had suffered a left-sided C6-7 disc prolapse with neurocompression of the C7 nerve root.  Steroids were trialled but did not assist the plaintiff’s pain levels.

33      There was then a series of referrals to various neurosurgeons, with the plaintiff ultimately consulting Mr Greg Timms on about 10 December 2009.  Mr Timms recommended an anterior cervical discectomy and fusion surgery with a partial vertebrectomy at C6-7, which was performed at Epworth Hospital on 8 January 2010 (“the surgery”).

34      After the three days in hospital, the plaintiff saw Mr Timms and his general practitioner regularly and he was prescribed strong painkillers.

35      The plaintiff attempted to return to work on 26 February 2010, initially doing light duties of an administrative supervisory nature for four hours per day.

36      The employer quickly increased the plaintiff’s hours and his duties and he was asked to do much of his pre-injury work, including carrying 25-kilogram bags of plastic pellets.  This task, and other work duties, caused an aggravation of his neck pain and he was forced to stop working.

37      The plaintiff’s pain settled down for a bit and he returned to normal work in about August 2010 and worked until around mid to late December 2012 on full-time normal duties.  He then suffered further pain in his neck and spine, and tingling and numbness in his hand. 

38      When asked whether there were incidents in the latter half of 2012 that caused an exacerbation of his pain, the plaintiff explained his condition was progressive from the middle of 2012 until the end of that year.[16]

[16]T70

39      On his return to work, the plaintiff worked as a team leader/materials handler.  He worked with a small team which he generally supervised, but there was some hands-on work.[17]  Since the end of December 2012, there were various modifications to his duties, with a helper engaged to assist him and he was carrying out very little manual work.

[17]T25

40      The plaintiff agreed that during this time, and before December 2012, he did not attend Dr Lange.   He just kept working as his visa required him to do so and he wanted the job.[18]

[18]T37

41      In 2012, the plaintiff suffered a minor ankle injury and took a short time off work.  This injury resolved.  The plaintiff initially denied that he had an issue with his feet[19] but then agreed that he had insoles made for a foot problem, and he also had some tests.[20]  He had some spurs on his feet that were causing him pain, which would have been aggravated by wearing work boots.[21]

[19]T26

[20]T27

[21]T28

42      A further cervical MRI scan was arranged by Dr Lange in early 2013 and the plaintiff was referred back to Mr Timms, who referred him to Dr Lee.  Dr Lee performed a nerve conduction study on 24 April 2013 and the plaintiff was subsequently advised the results were normal.  The plaintiff was to go back to Mr Timms; however, he did not do so, as he found examinations painful and he was about to leave for the UK.[22]

[22]T27

43      During 2013, the plaintiff became anxious about future injury and was often required to lift heavy items despite the restrictions.  Often, he had to do heavy work because there was no one to help him with die setting.  Despite his pain, he continued to do the work assigned to him.  He was struggling at work and was in pain almost every day.  The constant stress of this situation was also placing a great deal of strain on his marriage.

44      The plaintiff confirmed he saw Dr Lange in January 2013 to explain about his pain, but he could not remember having time off work at that stage.  Later, there was a worksite assessment, and alternative duties followed, because the plaintiff’s injuries were not being accommodated.[23]

[23]T71

45      In February 2013, the plaintiff was still on alternative duties and his pain was becoming unbearable.  He continued working despite the pain because of his visa requirements and because he enjoyed the job and wanted to recover.

46      Early in 2013, the plaintiff requested he do a job driving a buggy.  This was a job he thought he could do.[24]  He was then at the end of his tether and everything was just falling apart.  He then said he did not know if he could do that job, but he had to “get out of the shop” and he could not function, even on light duties.[25]

[24]T35

[25]T36

47      The plaintiff could not remember in early 2013 discussing with Tania Nicholson, the employer’s pay coordinator, that he was looking for a way to return to the UK and that he wanted to see if he could submit a claim like an income protection claim.  He was worried about his situation, his health and his marriage.  He was not looking for a way to get back to the UK.[26]

[26]T17

48      The plaintiff saw solicitors in March 2013 because his condition was deteriorating in 2012 and he had become unbearable to live with.  He had pain in the upper back, left shoulder blade, left forearm and palm, and ring and little fingers.  He saw solicitors about a compensation claim.  He had to weigh up what was most important to him and the cost of going back to the UK because he could not even perform light duties at work.[27] 

[27]T29

49      The plaintiff could not remember whether he made the decision to return to the UK before or after seeing solicitors in March 2013.  He decided to go back for health reasons and not compensation reasons.[28]  Before leaving Australia in late 2013, he had not received any advice from an immigration lawyer as to what to do.[29] 

[28]T66

[29]T15

50      The plaintiff agreed that in early 2013, he was starting to suffer considerable anxiety referable to his marital relationship.  He could not remember having marriage counselling while in Australia, but he did speak about his relationship being “on the rocks” with doctors.[30]  Dr Lange referred him to a psychologist because of the injury and his inability to do his job.[31]

[30]T62

[31]T72

51      The plaintiff confirmed the employer did not want him to leave when he first raised the issue in March 2013.[32]  Further modified duties were suggested.  However, the plaintiff advised that he could not cope even with very modified duties. 

[32]T33

52      Whilst he deposed that nothing changed when he complained that his duties were aggravating his condition and that he felt pressured to complete heavy manual type work, the plaintiff agreed the employer took steps and made changes to prevent this occurring.[33] His general practitioner was also working in this regard, assessing his condition and attending a worksite attendance, after which restrictions were imposed.[34]

[33]T30

[34]T31

53      A return to work plan to commence on 23 April 2013 stated that the plaintiff was not to work in awkward positions.  There was to be no lifting over 10 kilograms and die setting tasks were only within restrictions.  The plaintiff was to arrange for another staff member to remove and reattach the tools, electrical and hydraulic leads, remove and reattach crane eye bolt tooling guide only within limitations and restrictions, and when emptying sacks of pallets from machines, he was to ask for assistance to complete the task.

54      At the very end of his employment, the plaintiff was provided with a full-time helper.  The plaintiff was then still doing very light duties involving quality issues and liaising with maintenance.  He was also doing the data entry and some manual work on the floor where something always needed to be done.[35]

[35]T32

55      The plaintiff eventually decided that he would have to resign from his job in order to give himself sufficient time to rest and assist his neck injury and recovery.  He simply could not cope with the pain so he resigned on or about 24 July 2013, advising the employer a month earlier that he intended to do so.

56      When the plaintiff indicated he would resign in June 2013 he also told Jasmin Singh, the employer’s production manager, that his son Dean had made an offer to pay for him to come back and stay with him in the UK and he would look after him.[36]  The plaintiff decided to do so to give his wife a bit of a rest and a break from looking after him.  The plaintiff’s pain at that stage was excruciating and he could not even do minimal duties.[37]  For all the employer tried to bend over backwards for him, the plaintiff still could not do his duties as the pain was too great.   He did not want to leave Australia or his job.[38]

[36]T18

[37]T35

[38]T42

57      The plaintiff also told the employer’s operations general manager, Markus Spindler, that he needed to resign because he could not even function doing light duties.  There were more important things than his job with the employer; there was his health.[39] 

[39]T34

58      The plaintiff told Markus he had to leave because he could not bear the pain and the stress it was putting on his marriage.  The plaintiff agreed that the employer wanted to give him more help and light duties and also that he was considered a valuable employee.[40]

[40]T40

59      The plaintiff agreed that his wife, Denise, had had a number of health conditions in Australia, including epilepsy and dementia.  She had a stent inserted in the UK but had no heart problems in Australia.[41]

[41]T6

60      However, the plaintiff denied that Denise’s health was a considerable concern when he left Australia.  She was concerned about her health.  He was more concerned about his own plight and the downward spiral he went into:

“There was already so much going on, so much turmoil with my marriage, my relationship, that didn’t influence going home.  My son had already offered because he could see the breakup, the disruption, the things that were going on and he offered me to come back to recuperate.”[42]

[42]T16

61      The plaintiff agreed his relationship problems with his Denise and family caused difficulties, but the root cause of his emotional distress was his recurrence of pain and uselessness and “stuff like that”.[43]  Denise’s health was part of the reason he left Australia.[44] 

[43]T18

[44]T20

62      The plaintiff agreed the real reason he believed he had to go back to the UK was because once he stopped working for the employer, he had to leave.  This would have been the case even if he was in receipt of worker’s compensation.[45]

[45]T23

63      The plaintiff confirmed he was given a total incapacity certificate by Dr Lange covering the period from 1 to 9 July 2013.  He denied he would have told Dr Lange on 23 July 2013 that he felt better and he had mild pain in the left arm.  However, he did tell him his last day at work was to be the following day.[46]

[46]T39

64      Nola McAuliffe, in the employer’s HR Department, had misunderstood the plaintiff’s resignation letter and ignored his pain and stress.  She drafted up her own letter in which she mentioned the plaintiff left the job for “other opportunities”.[47]

[47]T41

65      The plaintiff did not think he left the job prematurely before having any rehabilitation because he had been doing different duties for three years.[48] 

[48]T34

66      When the job ceased, the plaintiff simply made arrangements to go back to the UK.  The employer then forced him to work out the four weeks’ notice.[49]

[49]T43

67      Before leaving for the UK on 25 July 2013, the plaintiff did not discuss other employment as his job was tied to the employer.[50]

[50]T37

68      The plaintiff’s family left Australia maybe a month before him.[51] The plaintiff had a few things left to tie up in Australia including the cars and property.  There was no rush for his family to go back.  They went ahead because they had to make arrangements for their housing in the UK.[52]  Denise went back with Dean to Cornwall, where he lived with his partner, Tammy, and young son.  Claire and Mark went to live in Wokingham.[53]

[51]T19

[52]T18

[53]T18

69      On their return to the UK, the plaintiff and Denise had no knowledge of Dean’s illness nor did Dean know he was sick.  Dean looked after the plaintiff and Denise until he fell ill in about mid-2014, doing so more financially than physically as he was often away working.  The plaintiff and Denise lived in a separate granny flat on the farm Dean rented.  Dean took care of the household chores and cooking.

70      The plaintiff was depressed at that time as he had lost his profession.  He had to give up work and his Australian residency.  He withdrew and spent lots of time by himself.  At times, he did not even bother getting up and attending to his personal hygiene.

71      Dean started to feel generally unwell but did not appear gravely ill and continued to go to work.  One day, he did not feel very well and he went into hospital and was never discharged after September 2014.  His illness came on very quickly and he died in January 2015.

72      Dean was diagnosed with HIV in late September 2014.[54]  The plaintiff could not remember being concerned at having contracted HIV.  Following Dean’s death, the plaintiff’s grief was compounded by the way he was already feeling at that stage.[55]

[54]T43

[55]T44

73      When shown documentation relating to his permanent visa application dated 12 June 2012 and details of the application fee of $3,150 being refunded to him, the plaintiff denied that he made such an application.  As far as he was concerned, his job with the employer entitled him to full residency.  He could remember something about a tax benefit, but could not remember any application for permanent visa status.  He did not apply for an extension of his visa, nor did anyone else do so on his behalf.[56]

[56]T22

74      If he had known he had been granted a permanent visa in 2012, the plaintiff would still have left Australia because the overriding problem was pain and “the relationship”.[57]

[57]T69

75      Before leaving Australia, the plaintiff did not ask anyone whether he had to go, because he knew he had to when he first joined the employer.  He decided to go because he could not do the job that he was employed to do and the pain was restricting him, and it was putting his marriage under stress.  He put his health first.[58]

[58]T65

76      When he stopped working for the employer, the plaintiff did not believe he could stay.  He thought his visa was tied to the particular job and it was never an issue.  There was no way he would survive on a benefit, or even qualify for one.  The only option was to leave because his visa was tied to the job.[59]

[59]T68

Work future

77      The plaintiff believed his future earning capacity had been severely impaired, if not completely destroyed by his injury.  He was previously very focused on his promising and bright career but that had now gone.

78      The plaintiff has not been able to return to any work since 24 July 2013.  He has not sought any work or applied for any work because of his pain.  He has not thought of applying for any job or retraining since his return to the UK.  He has very basic skills.  In his field of die setting, it is just time served, not qualifications and he certainly has time served.[60]

[60]T45

79      The plaintiff’s memory and thinking had been affected because of his pain and he found it very hard to focus on one thing.  He was not able to plan necessary future tasks or activities.

80      Standing or bending for long periods was too painful for the plaintiff.  He could not do the heavy duties of lifting as a die setter.  He could not return to his trade.  He was now over fifty and had no training or experience in office work or other sedentary type work.  He was also unable to sit comfortably for extended periods of time.  He needed to get up and stretch and move around.  He did not believe he could retrain due to his concentration and memory problems caused by his relentless pain and depression.

81      It response to the suggestion he could do supervisory work, the plaintiff said he had to have the motivation and the mindset for the role.  He agreed Paul Goldsmith, his counsellor in the UK, had described him as suffering from social anxiety.[61] 

[61]T46

82      In cross-examination, when it was suggested the real factor preventing him from working was low mood and fear of mixing with people, the plaintiff responded: 

“Why don’t you say depression from the pain and losing all of your life from in front of you, why don’t you just say that?”[62]

[62]T47

83      The plaintiff disagreed his depression had resolved when shown Mr Goldsmith’s September 2015 letter advising him to this effect.  It was not fixed.  His depression scores went down and there was a partial recovery.[63]

[63]T48

84      If the plaintiff did not have pain in his neck and shoulder and arm, or anywhere else, he would not feel confident going to work and he certainly did not feel “confident in his head” to go back to work.  He has never done an administration or office job.[64]

[64]T73

85      The plaintiff confirmed the history taken by Ms Webster when she interviewed him on Skype in May 2016 was correct.  Problems with mobility described by him related to his arm, shoulders and back.[65] He then agreed that mobility issues related to his legs and ankle.[66]

[65]T63

[66]T64

86      The plaintiff agreed that he also told Ms Webster he could not guarantee an employer that he would turn up to work every day because, in addition to mobility issues, there was a “lack of want, development of insecurity and communication issues outside of home”.[67]  He preferred to stay indoors and he could not physically do a job.

[67]T63

87      The plaintiff agreed he told Ms Webster that he avoided social situations and it made him sick to think about them.  He told her “I don’t want to communicate which upsets the applecart and my relationship with my wife and there is no way out”.[68]

[68]T64

Treatment

88      As of October 2015 when he swore his first affidavit, the plaintiff was taking Paramol and Codamol, Sertraline (an antidepressant) and Amitriptyline for pain relief.  He also used heat packs on his neck and shoulder to try and relax his muscles.  He was then being counselled for depression to deal with his losses and the ongoing pain.

89      The plaintiff last obtained a prescription for Tramadol before he recently came to Australia.[69] He agreed he did not seem to have been taking Tramadol in October last year and he cannot remember when he started.[70]  He takes that medication because of his neck, back, arm and palm pain.  This medication and the anti-depressants make him feel lethargic and woolly headed.[71]

[69]T57

[70]T61

[71]T62

90      As of October 2015, the plaintiff continued to experience spinal pain almost daily which was constant and usually at a level of eight out of ten, fluctuating between moderate and severe. 

91      The plaintiff now has constant neck pain, which is made worse by moving his left arm.  Nothing makes it better, but he uses painkillers.  As long as he can keep his arm close to his body, he can drop it down.  He has a limited grip, and problems even with the remote control.  He does not have a capacity to lift.  There has not really been any change in that situation, or his ability to work in awkward situations, since Dr Lange last gave him a certificate.[72]

[72]T74

92      Driving, chores, household maintenance and playing sport and games with his five grandchildren seemed to aggravate the plaintiff’s pain.  His inability to play with his grandchildren was a significant loss for him.  He also used to enjoy excursions and holidays with his family and friends but rarely went out because of the pain and particularly travelling in his depressed state.

93      Many activities increased the plaintiff’s pain.  Simple things like gripping anything with his left hand – such as a mobile phone or a remote control – aggravated and increased his left hand and forearm pain.  Any attempts at housework or gardening also aggravated his back pain and, at that point, it could become quite severe.

94      The back pain interfered with the plaintiff’s sustained posture and he had to consistently shift his position and ultimately he would have to sit down.

95      The plaintiff explained that in the witness box he was holding on to his left shoulder/left side of his neck to disable his arm and that any extension from this arm was painful.  This position did not take the weight off his neck.  He was keeping his arm close to his body instead of using a sling.[73]

[73]T49

96      When it was pointed out to the plaintiff he did not present in that manner when he saw Mr Jones in 2016, he explained that he tended to hold his left arm by his side also, as he did on that examination.[74]

[74]T52

97      The plaintiff was constantly trying to hide his back pain from family and friends and, as a result of his injuries and pain, he had become very irritable and lost his temper quite quickly.  That had placed a significant strain on his marital relationship and his relationship with his family and friends.  That change in personality upset him and was a significant loss for him.

98      The plaintiff’s ability to move around had been affected by his injury.  Even walking the dog had to be limited to short, flat walks.  This was another significant loss for him.

99      The plaintiff was no longer able to go cycling due to ongoing back pain.  This was an activity he really enjoyed prior to his injury.  He loved to cycle and keep fit.  This was a very social activity for him and no longer doing so was a significant loss.

100     The plaintiff had a lot of trouble sleeping due to ongoing back pain.  He usually wakes up once at night and eventually gets back to sleep.[75]

[75]T73

101     The injuries had affected the plaintiff’s ability to do home activities, in particular, because of his limited ability to twist, turn or bend his neck.  As a result of his pain and lack of upper body strength and stamina, he was no longer able to do home maintenance work or do the mowing, weeding or other garden tasks, which he enjoyed pre accident.  This was another significant loss.

102     The injuries also affected many activities in the plaintiff’s personal life such as eating and personal grooming.  He had lost a lot of pride in his appearance and interest in his personal grooming.  He often felt that there was not much reason to bother getting dressed or shaving.

103     The plaintiff had a lot of difficulties with meal preparation.  Standing at a bench for a long time increased his pain and he had lost his appetite as a result.  His appetite had also been affected as a result of his worry and he had gained a lot of weight.

104     The plaintiff’s injuries had affected his independence, in particular, his ability to travel.  He could not sit for long periods and the return flight from Australia was agonising.  This was a significant loss as he loved to travel before his injury.

105     Since the incident, driving had become a very painful activity, particularly as the plaintiff drove a manual car.  Sitting for long periods of time was very difficult.  It was very painful and it was very difficult to find a comfortable position.  He now took much shorter drives and could not do a long trip in one go and had to make multiple stops.

106     In late 2015, the plaintiff had been devastated to learn that his visa had been taken away from him and his wife.  They loved Australia and were very proud to live and work here.  He had decided to apply for citizenship and live here for the rest of his days thereafter.  Sadly, that opportunity had passed and he was very disappointed he could not contribute to the ongoing greatness of his beloved Australia.

107     Every aspect of the plaintiff’s life had been greatly affected by his injury and he was no longer the healthy, active man he used to be.

108     In his supplementary affidavit sworn on 4 November 2016, the plaintiff detailed his present financial situation.

109     Denise receives £600 GBP Sterling a month rent assistance, with the balance of rent paid by Claire and Mark.  They intend to move out as the house is too crowded.  They initially went to live with the plaintiff and his wife to help look after them and also provide financial support.

110     The plaintiff is not required by English law to submit an annual tax return and he does not have any further income documents than those submitted for this application.

111     On their initial return to the UK, Dean financially supported them as he was independently wealthy.  Denise was in receipt of a retirement aged pension of £158 GBP Sterling per week.  Around Christmas 2013, she was informed she should be eligible for a weekly pension credit of £74 GBP Sterling per week in addition to her aged pension.   

112     In about February 2014, a government agent advised Denise of her eligibility to claim a further monthly benefit called a “Personal Independence Payment” of about £240 GBP Sterling.

113     After Dean passed away, the plaintiff looked into his entitlement to any benefits.  An application for a disability pension was refused as the injury happened in Australia, and no insurance contributions were made in the time leading up to the incident.

114     Since January 2016, the plaintiff has received a carer’s pension of £62 per week to look after Denise.  He cannot work.  He is the “eyes and ears” for her.  If she has a fall, he can ring the ambulance.[76]

[76]T5

115     The plaintiff denied he was not motivated to work because of the benefits he was receiving as a large part thereof related to rent of £150 per week.[77]

[77]T7

Other health issues

116     The plaintiff has had some knee pain for some time which started off slowly.  It has become worse over time and he first noticed it when doing things like playing with the grandchildren.  He was told by a physiotherapist whom he had recently seen once, that the pain is from muscle deterioration.[78] 

[78]T51

117     In about January 2016, the plaintiff started to get a numbness and pain in his right thigh.  In or about July 2016, he was diagnosed with meralgia paraesthetica by his general practitioner.  Treatment was pain-relief tablets and rest, as the condition is aggravated by standing and walking.  Stretching the leg and massage is also helpful.  The plaintiff could not remember any surgery being suggested. 

118     This condition does not cause severe pain; it is more of an irritating numbness on the surface of the skin.  The condition can affect sleeping, but not walking.[79] However, the plaintiff then agreed the condition was aggravated by standing or walking.[80]

[79]T51

[80]T52

119     The plaintiff denied complaining of low back pain going into his right leg in the last year.  He agreed that he had seen Mr Ralton but that was for his shoulder, spine and nerve conduction tests.  Meralgia was the second issue.[81] Since 2015, the plaintiff has only gone to doctors in the UK because of problems with his back and arms.[82]

[81]T56

[82]T55

120     The plaintiff thought he might also have seen a consultant orthopaedic surgeon, Mr Brownlow in the UK.  Otherwise, his only treatment has been medication.  He agreed the result of a recent MRI scan did not explain any symptoms that he was suffering.[83]

[83]T60

121     The plaintiff initially said he did not have any counselling with respect to his marital difficulties in the UK.[84]  He had not had counselling in the UK from a psychiatrist before he knew of Dean’s illness, but then agreed he had in fact asked for counselling in April 2014.  In 2016, he commended seeing another psychologist in the UK.[85]

[84]T42

[85]T49

122     The plaintiff’s relationship with Denise was “great” when he got the 457 Visa.  After his pain returned in late 2012, it became unbearable and made him feel irritable, angry and short tempered.[86]  The marriage was on the rocks when Dean came to Australia and suggested the plaintiff come back to the UK with him to recuperate.[87]

[86]T68

[87]T69

123     The plaintiff’s relationship with Denise deteriorated when they went back to the UK.  Whilst her dementia and epilepsy symptoms have worsened, she is not a “quivering wreck”.[88]

[88]T45

Lay evidence

124     The plaintiff’s stepdaughter, Claire Laverick, and her fiancé, Mark Bryant, swore affidavits in October 2016 confirming the plaintiff’s pre-injury good health.

125     They lived with the plaintiff and Denise in Australia from February 2010 until July 2013.

126     They confirmed the plaintiff’s complaints post-incident of pain, restriction and sleep difficulties and that he had to go back to the UK because he was no longer able to work with the employer.

127     In December 2015, they moved in with the plaintiff and Denise to assist them financially and provide them with support and care given their health concerns.

The Plaintiff’s treaters

128     There were two short letters from Dr Lange, the plaintiff’s initial treating general practitioner in late 2009/early 2010, requesting funding for an MRI scan and lawn mowing services.

129     In late 2009, Mr Timms advised that the large disc prolapse at C6-7 shown on the MRI warranted surgery.  On 8 January 2010, he performed a C6-7 anterior cervical discectomy fusion with partial vertebrectomy.

Treatment in the UK

130     Ms Moore, physiotherapist at Berkshire Health, reported in February 2015 following referral of the plaintiff from Dr Harper.  The plaintiff then presented with posterior neck pain, left shoulder and upper arm pain, and numbness in the left forearm, ring and little fingers.

131     The plaintiff told Ms Moore of the incident, the surgery and a subsequent return of pain.  He therefore had to stop work and he moved back to the UK to live with his son, who unfortunately recently passed away.

132     The plaintiff reported his symptoms were becoming increasingly painful and he was limited in his movements.

133     On examination, the plaintiff had extremely limited neck movement and stood with left shoulder elevated.  Ms Moore was unable to assess his upper limb myotomes as movement of the upper limb was extremely limited due to pain.

134     Ms Moore thought the MRI finding of a left C4 nerve compression was likely an incidental finding, that does not correlate specifically with the plaintiff’s symptoms.  She had arranged for a referral to orthopaedic surgeon, Mr Rajagopal. 

135     Ms Moore suspected the plaintiff’s symptoms were due to a chronic pain response and thought he would benefit from a course of physiotherapy. 

136     Ms Moore referred the plaintiff to the trauma and orthopaedics shoulder Clinic on 10 March 2015.

137     On 16 July 2015, Mr Ramamoorthy, orthopaedic shoulder surgeon, wrote to the plaintiff’s general practitioner.  He noted the plaintiff was complaining of pain in the neck, with a shooting pain down his left arm, with pins and needles along the left ulnar distribution.  He saw the plaintiff to exclude any ulnar nerve entrapment and arranged a nerve conduction study, which later proved to be normal.

138     Dr Lee, from Woosehill Medical Centre, Wokingham, reported in June 2016, the plaintiff having joined the practice on 14 November 2014.

139     Dr Lee noted the MRI of May 2014, which again confirmed the fusion of the C6-7 disc space with some disc bulging at C3-4, but no compression of the spinal cord.  There was compression at the left C4 nerve root.

140     Dr Lee noted that the plaintiff was subsequently seen by Mr Rajagopalan, orthopaedic surgeon, for left shoulder upper arm pain and numbness of the left forearm.  A small disc bulge was noted but thought to not be responsible for the clinical presentation.  Nerve conduction studies were then carried out and there was no subsequent specialist involvement concerning the spine.

141     Dr Lee noted from January 2015, the plaintiff developed depression secondary to a close family bereavement and consulted for this until August 2015, and had been treated with anti-depressants.

142     In April 2016, the plaintiff was referred to the orthopaedic spinal clinic in Reading because of ongoing upper back pain and left arm paresthesia, which was affecting the use of his arms and upper body, and daily activity.  However, the results were not then available.

143     Dr Lee noted future treatment would depend on the recommendation given by the specialist.  Currently, the plaintiff had some disability with daily activities, including dressing, and his prognosis was unclear.  Dr Lee noted the plaintiff clearly had symptoms for a long period of time and, in general, once patients have symptoms for more than six months, they tend to persist for some time.

144     The plaintiff was examined by Mr Ralton, spinal consultant, on referral from Dr Lee in August 2016.

145     Mr Rolton noted the plaintiff’s current symptoms were severe neck pain, left arm pain and pain within the palm.  He did complain of some new numbness within the anterolateral aspect of the right thigh.

146     Mr Rolton noted the plaintiff had a past medical history of depression.  He was on Sertraline, and took Tramadol and Amitriptyline for his pain.  He had been seen by Mr Brownlow in the shoulder clinic and had a normal nerve conduction study.

147     On examination, the plaintiff had obvious tightness within the left trapezius muscle with an elevated shoulder, and he had severely restricted range of motion with the left shoulder and neck.  He had a slightly reduced left grip, but his elbow was normal.  Adduction was limited due to stiffness within the shoulder.

148     The plaintiff described paraesthesia within the two ulnar digits of the left hand.  He had normal neurology in the lower limbs apart from some reduced sensation over the right thigh.

149     Mr Rolton thought the plaintiff’s symptoms may be in keeping with the left C8 radiculopathy and he referred him for a cervical MRI scan.  He was also going to obtain a lumbar MRI scan to exclude a nerve root compression which may be causing the thigh numbness.  He advised he was going to refer the plaintiff to his shoulder colleague with suspected left frozen shoulder and would see him once those investigation results were available.

Medico-legal evidence

150     Dr David Elder, consultant in occupational and environmental medicine, examined the plaintiff in May 2013 for the purposes of an AMA assessment.  He did not comment on the plaintiff’s work capacity.

151     On examination, the plaintiff demonstrated a very good range of cervical spine motion and there was no spasm.  Power was normal.  Deep tendon reflexes were normal and there was no wasting of the upper limbs.

152     Dr Elder diagnosed mechanical neck pain relevant to the original neck injury, which was surgically treated.  There was no clinical evidence of radiculopathy. 

153     The plaintiff was examined by Dr Joseph Slesenger, occupational physician, on 19 September 2016.

154     The plaintiff told Dr Slesenger of a deterioration in symptoms in late 2012, following which he was put on light duties, predominantly administrative.  He continued in this role until July 2013, when he resigned due to the persistence of his symptoms. 

155     The plaintiff had not returned to work since and, as a result of leaving work his visa was revoked and he had to return to the UK.

156     The plaintiff reported ongoing severe pain in the left neck, shoulder, arm, forearm and hand.  The pain was both dull and shooting in nature, and it was distracting.  The plaintiff had a severe restriction to his range of shoulder and neck movement and could not lie on the left side.  He had difficulty rotating his head and was unable to elevate his left shoulder.

157     In terms of current treatment, Dr Slesenger noted the plaintiff was seeing his general practitioner for review.  He was taking Tramadol, Sertraline and Amitriptyline.  This medication was causing drowsiness and some degree of confusion. 

158     The plaintiff was also seeing Mr Ralton, orthopaedic surgeon, and was due to undergo further assessment, including an MRI scan.  He had also been seen once in the UK for physiotherapy treatment to his left foot.

159     Dr Slesenger noted that in late 2015, the plaintiff began to develop right leg pain.  He was referred to Mr Ralton and was awaiting an MRI scan of the lumbar spine.

160     Dr Slesenger noted Mr Ralton reported on 16 August 2016.  The spinal consultant, trauma and orthopaedic surgeon wrote in his capacity as a treating clinician, and diagnosed left C8 radiculopathy, left frozen shoulder, previous C6‑7 ACDF and meralgia paresthetica right thigh.  Mr Ralston had a similar history to that was disclosed to Dr Slesenger.

161     Dr Slesenger’s clinical examination demonstrated severe restrictions to the cervical spine and left shoulder movement.  He noted that, more recently, the plaintiff had developed left leg symptoms.  Dr Slesenger thought the causal link between those and the injury was unclear.  He considered the plaintiff also had a psychological impairment.

162     Dr Slesenger diagnosed aggravation of degenerative disease of the cervical spine resulting in C6-7 anterior cervical discectomy fusion with partial vertebrectomy, a Chronic Pain Disorder, possible left shoulder adhesive capsulitis, psychological impairment and soft tissue injury to the left ankle, which settled spontaneously within a few months.

163     Dr Slesenger was satisfied the aggravation was caused by the initial injury.  Subsequent to surgery, the plaintiff had developed a Chronic Pain Disorder and there was also evidence of a left frozen shoulder.

164     Dr Slesenger was not able to provide an Impairment Assessment as the plaintiff’s condition had not stabilised, but he thought with regard to loss of earnings, the plaintiff does not have the capacity to return to work.  He did not anticipate a change in the plaintiff’s impairment in the foreseeable future.

165     Dr Slesenger thought the prognosis must be guarded, noting the absence of improvement and, in fact, deterioration since the surgery, and also the severity of the current impairment and disability.  Even if treatment was available, Dr Slesenger did not anticipate a significant improvement in the plaintiff’s symptoms, to the point where he would be able to return to work.  He anticipated some improvement in the plaintiff’s capacity to perform domestic tasks in a self-paced manner.

166     Dr Epstein, psychiatrist, saw the plaintiff on 21 September 2016 for an AMA assessment.  He did not comment on the plaintiff’s employment capacity.

167     In terms of history, Dr Epstein repeated the contents of the plaintiff’s affidavit.

168     Due to his Australian visa being conditional upon him working with the defendant, the plaintiff returned to the UK in September 2013.  His wife’s health slowly deteriorated.

169     In mid-2014, the plaintiff’s stepson, Dean, then thirty-seven, became ill with symptoms from HIV.  The plaintiff stayed to care for him for a period of time.  The plaintiff was flat, disinterested, and low in mood because of his personal situation, and because of his stepson’s health issues.

170     According to the clinical notes from the UK general practitioner’s practice, the plaintiff saw Dr Sweeney on 25 November 2014.  He was then concerned about a rash over his limbs and abdomen and stressed regarding his son’s advanced HIV.

171     The plaintiff had been prescribed Sertraline and also used paracetamol for pain.  He ceased driving because of left arm pain.  His stepson was moved to three different hospitals. 

172     The plaintiff and his wife arranged to move into a rented house in November 2014, hoping to be closer to Dean in hospital.  Dean died in January 2015, and the plaintiff and his wife were very distressed by his death.

173     Dr Epstein noted the plaintiff saw Dr Harper on 3 February 2015.  He was then in his present domestic arrangement, which was cramped and uncomfortable.  He was struggling to find somewhere to live, and had been to a job centre and spoken to social security.  He was living off his pension.  He was unmotivated and he thought he had lost much since he was in Australia.  His dosage of antidepressant medication was increasing.

174     Dr Epstein noted the attendance with Alice Moore, a physiotherapist in Berkshire, in February 2015, and the contents of her report.

175     Later in February 2015, the plaintiff and his wife moved to their two storey terrace home, where they presently live.

176     On 10 March 2015, Ms Moore referred the plaintiff to an orthopaedic shoulder surgeon, Mr Ramamurthy, who sent him for nerve conduction tests, which were essentially normal.

177     The plaintiff was feeling miserable and tired and in April 2015, he first saw Paul Goldsmith from Talking Therapies, for counselling, and continued to see him every two weeks.

178     On 22 April 2015, the plaintiff reported to Dr Tong at his general practice that he was unmotivated and did not want to go outside.  He had some thoughts of self harm, but no suicidal thoughts.

179     On 19 May 2015, Dr Harper provided the plaintiff with a Work Certificate, saying he was unable to work due to his depression alone, and his dosage of Sertraline was increased.

180     Dr Epstein noted the plaintiff saw Dr Lee, general practitioner, in August 2015 for depression that developed secondary to close family bereavement.

181     The plaintiff saw Paul Goldsmith for counselling nine times.  In his report of 22 September 2015, Mr Goldsmith noted the plaintiff’s initial treatment focused on depression, but on the last visit on 21 September 2015, he considered this had resolved.  He thought there was a possibility the plaintiff may need to return to therapy after a six-month break to reduce his social anxiety.

182     The plaintiff told Dr Epstein he rarely left the house because of the pain involved in him travelling and his depressed and grumpy state.  In April 2016, his wife was diagnosed with epilepsy and dementia, and her condition further deteriorated.

183     The plaintiff told Dr Epstein he felt flat almost all the time.  He felt frustrated, lonely, isolated, irritable, exhausted, agitated, unmotivated and had problems with memory and concentration.

184     Dr Epstein thought the plaintiff had developed a Major Depressive Disorder of moderate severity with suicidal ideation in the context of injuries arising at work that had left him with chronic pain.  It appeared that pain had gradually worn the plaintiff down, hence the development of his current mental state that had been associated with suicidal ideation, with counselling both in 2015 and, more recently, this year. 

185     Dr Epstein noted the plaintiff’s situation had been made worse by the fact that his wife had developed dementia and had epilepsy and that added to his level of depression.

186     Dr Epstein thought the plaintiff’s quality of life has diminished, markedly affecting his work capacity, relationships and recreational enjoyment.  He thought the plaintiff’s prognosis for employment very much depended on what happened with his physical symptoms. 

Vocational evidence

187     Ms Annette Webster of Employment Professionals provided an employment assessment of the plaintiff in June 2016, having spoken to him on Skype on 23 May 2016.

188     The plaintiff told Ms Webster of the incident injury, his attempt to return to work, and persisting pain, as a result of which he resigned from the employer on 24 July 2013, not returning since that date.  The plaintiff returned to the UK as his Australian visa was conditional upon him working with the employer.  Thus, when he ceased work, he had to leave the country.

189     Ms Webster noted the plaintiff advised that he currently suffers from severe neck pain, left shoulder pain and constant pain in the upper back, radiating pain in both legs and ankles, which is aggravated by walking and/or going up a step or a kerb, which had caused him to fall.  It felt like his knees give way.  He also had a lack of self-confidence and stated that he would avoid social situations and it made him sick to think about these situations. 

190     The plaintiff also had anxiety, depression and stated, “I don’t want to communicate which upsets the apple cart and my relationship with my wife and there’s no way out”.  Further, he had poor memory and concentration and found it difficult to focus.

191     The plaintiff told Ms Webster that his ability to sit varied between half an hour to an hour, and he could stand for 10 to 15 minutes.  However, he generally alternated his position.  The plaintiff described his future as –

“… dark, dismal, dull and then death.  I do not really look into the future.  Whether I’m capable to drive, I wouldn’t want to do it.  I loved it in my job, now it’s all history.”

192     Ms Webster thought that, based on the plaintiff’s medical reports and how he presented, he would find it extremely difficult to realistically fulfil the requirements of any role in a full-time, or even part-time, position.  Further, she would not recommend he attempt to perform any workplace duties without a medical clearance from his doctor stating the number of hours and duties he may safely perform.

193     Ms Webster noted it was evident the plaintiff had extensive work skills and experience as a die setter supervisor and, as a recruiter, she believed he had been stoic in his attempts to return to work post injury, in spite of his pain and disabilities.

194     In Ms Webster’s view, hypothetically the plaintiff may have some residual transferable skills.  However, they were generally dependent on his physical capacity, which is now very limited, and from a vocational viewpoint, with his recurring pain, physical restrictions and poor concentration and fatigue, he would be very restricted in working in the same type of environment in which he had previously worked.  She noted the drastic reduction in manual performance and productivity as a result of significant injury caused by the plaintiff’s attempt to return to work, when only performing light duties and reduced hours aggravated his pain and symptoms.

195     Ms Webster discussed with the plaintiff whether he could guarantee an employer that he could turn up to work every day and he stated:

“No, I couldn’t guarantee. I’ve got mobility issues, lack of want, development of insecurity and communication issues outside of home and prefer to stay indoors and I couldn’t physically do a job.” 

196     Ms Webster felt there were no alternative job options the plaintiff felt he may manage with his limited work capacity.

Other work incidents

197     There was an Incident Report relating to an incident on 10 December 2012, in which it was noted the plaintiff suffered serious pain to his upper back and left shoulder while draining 375-kilogram material bags into a vacuum pipe.  He was trying to get the last 250 to 300 kilograms of raw material from the bottom of the large bag.

198     Another Incident Report set out that on 12 September 2012, the plaintiff jarred his upper back and neck while pulling the material hopper across on MC81.

Resignation documents

199     By letter dated 26 June 2013, the plaintiff advised that due to continuous pain in his upper back and left arm, and the associated stress at home, he felt he must resign his position as a team leader/die setter and he would like to give three weeks’ notice, finishing on 19 July 2013.

200     The plaintiff wished Hella well in the future and thanked it for all it had done for him and his family.

201     The letter was handed to the employer’s general manager, Markus Spindler, on 25 June 2013.  When the plaintiff advised he would like to resign, he said he had shoulder and neck pain, and he wanted to no longer be a burden for the employer.  He felt he could not fully carry out his tasks as a die setter, having been on modified duties for nearly six months, and he felt he had to stop doing his job for a while. 

202     The plaintiff also advised that he had a son in England who offered him to come over and stay at his house and he would look after him.  He said they had spoken about this now several times and the plaintiff wanted to go there as soon as possible for an open period of time.  He also advised his marriage was under stress, and he wanted to take a break and move to England to fix the problem.

203     The plaintiff asked if he could leave as soon as possible and for his notice to be paid out.

204     Mr Spindler told the plaintiff the employer has, and will in the future, provide him with modified duties in compliance with his certificate.  He told the plaintiff they moved a second die setter to work alongside him to cover the workload and assist, and for him to consider his resignation.

205     The plaintiff’s resignation was confirmed by an undated letter from the employer, in which it noted the last day of employment was to be 24 July 2013.

206     In that letter, the plaintiff was advised the employer was disappointed with his decision to leave the company, and they were happy to continue to fully support his modified duties on an ongoing basis, in consultation with his doctors.

207     It was noted the understanding of the initial resignation was to leave Australia as soon as possible to join his family in the UK, hence there was discussion about waiving a notice period. 

208     However, it was communicated to the plaintiff in a meeting on 27 June 2013 that his position was critical to the employer and the employer was prepared to provide ongoing modified duties.  The employer required the plaintiff to work out his notice.

209     It was also acknowledged the employer had fully supported the plaintiff and his family before he started work through a business sponsorship into Australia, accommodation and removal support, followed by permanent sponsorship.  It was hoped the plaintiff would respect that decision and complete his employment in a professional manner.

210     On 28 June 2013, the plaintiff advised Mr Spindler that due to Human Resource’s refusal to accept his resignation, he revised the notice.

211     The plaintiff noted the problem appeared to be the reason for leaving which, he reiterated, was due to continuous pain in his upper back and left leg and the associated stress at home, and it was not, as the letter drafted by Human Resources suggested, to “pursue other opportunities”.  The plaintiff advised he resented being coerced into signing the other letter.

212     The plaintiff noted a chance of future employment on his return from resting, and HR had promised to pay out the three weeks’ notice if he signed the letter.

213     The plaintiff was notified by 5 July 2013 that he had failed to return to work when due on 2 July 2013 and, as such, under the applicable Award, his employment was deemed to have been abandoned.

214     In response, by letter of 8 July 2013, the plaintiff advised the employer not worry about the clause, and just check the Certificate of Capacity that set out he was unfit for work for one week. 

215     There was further correspondence from the plaintiff to the employer of that day confirming his ongoing health problems and circumstances of his original advice of resignation and the four weeks’ notice.

The Defendant’s evidence

Certificates

216     Following examination on 27 December 2012, Dr Lange certified the plaintiff fit for modified duties with no lifting over 5 kilograms. 

217     On 10 January 2013, Dr Lange certified the plaintiff fit for modified duties involving no working in awkward positions, no lifting over 5 kilograms and no die setting.  A similar certificate was issued in late February.  Certificates in April 2013 provided for modified duties involving no lifting over 10 kilograms and avoidance of awkward positions.

218     On 2 July 2013, Dr Lange certified the plaintiff unfit for any duties from 1 to 9 July 2013.  He seems to have provided a similar certificate after examination on 9 July 2013 for the period to 23 July 2013.  However, the parties proceeded on the basis that the Total Incapacity Certificate was for only the first week of July 2013.

219     On the final examination on 23 July 2013, Dr Lange certified the plaintiff fit for modified duties involving no lifting over 3 kilograms, no work over shoulder height and working at his own pace.

Medical treatment

220     On 30 July 2010, Dr Lange noted the plaintiff had no pain down his arms, occasional back pain, and he was keen to return to normal work.  On examination on 13 August 2010, Dr Lange noted the plaintiff was back at normal duties.

221     At the next attendance on 27 December 2012, the plaintiff gave a five-month history of numbness and tingling in his palm and fourth and fifth digits, and he also had pain in his neck and left side of his shoulder.  It was noted that he needed to get in awkward positions and climbing at work.  There was also reference to a left ankle foot injury in mid-December.

222     Following this examination, further investigations were arranged and a referral was made to Mr Timms.

223     On 10 January 2013, Dr Lange noted the plaintiff had been away from work for three weeks.  He still had numbness in his left hand and neck pain and thoracic spine discomfort.

224     On 31 January 2013, Dr Lange noted the plaintiff had ongoing pain in those areas.  Since alternative duties commenced, he had improved, but was still sore at the end of the day, but not as bad as before Christmas.  Panadeine and Voltaren were prescribed.

225     On 28 February 2013, Dr Lange noted the plaintiff was still on alternate duties and his pain was bearable and he was sleeping.

226     On 5 March 2013, Dr Lange noted the plaintiff had been intimidated by the manager and health and safety officer and was now not coping.  Also, the employer insisted the plaintiff did die setting. 

227     It was noted on 7 March 2013 that a worksite assessment had been completed and the plaintiff’s duties were discussed.  There was mention of numbness in the fourth and fifth digits and that the plaintiff’s neck was better.

228     By letter dated 7 March 2013, Dr Lange advised Mr Timms that the plaintiff had improved with his alternative duties regime.  He had less neck pain and minimal forearm pain.

229     Dr Lange advised he had kept the plaintiff on alternative duties and would like to slowly return him to normal duties over time, noting the plaintiff is an experienced die setter and works as a team leader with Hella.

230     Dr Lange sought Mr Timm’s advice about the plaintiff climbing on machines and working in awkward positions.

231     On 2 April 2013, Dr Lange noted that the plaintiff had seen Mr Timms and was to have nerve conduction studies.  The plaintiff felt very good and numbness continued. 

232     On 23 April 2013, the numbness continued, and the plaintiff complained of left palm pain.  There was no neck pain of note and, in general, the plaintiff felt better.

233     On examination on 31 May 2013, there was no change.  The plaintiff requested a WorkCover Certificate.  It was noted he was likely depressed.

234     On 2 July 2013, it was noted the plaintiff resigned last week and will return to the UK due to his neck:

“Yesterday pain increased and he could not sit in the car.  On Friday, climbed on machine.  Pain in upper back increased after work on Friday.  On examination, there was a minimal range of cervical movement.”

235     On 9 July 2013, Dr Lange reported the plaintiff felt a bit better and he was to see a neurosurgeon of 5 August 2013 and the plaintiff was considering surgery.  He felt stiff pain on the top of his back, which was relieved with Targin.  On that examination, there was minimal range of movement of the cervical spine and still pain in the left palm and digits.

236     23 July 2013 was the last attendance.  It was then noted the plaintiff was heading home soon and tomorrow was the last day of work.  He felt better.  There was mild pain left his palm and he was to see a surgeon in early August 2013.

237     The plaintiff first attended the Woosehill practice in the UK in November 2014.  On 14 November 2014, it was noted he was very stressed at present, caring for his stepson with HIV and he asked about counselling.

238     On 25 November 2014, it was noted the plaintiff was concerned about an itchy rash over his body.  His stepson had advanced HIV and the plaintiff was worried he may have contracted it, as he cared for him.  The plaintiff also felt more tense and withdrawn, but denied suicidal ideation.  He had ongoing back pain.

239     On 2 December 2014, under history, it was noted the plaintiff complained of low mood for several months.  He was previously living in Australia and sustained a back injury, and lost his job as a result, and had to return to the UK.  He was now living in cramped accommodation with his extended family.  Relations with his wife were pressured at times, and he had had relationship counselling in Australia.  He denied suicidal ideation.  He was prescribed Sertraline and referred for counselling.

240     On 22 December 2014, it was noted the plaintiff remained flat and disinterested much of the time.  His son was critically ill, and he did not feel he would survive until the New Year.  The plaintiff denied suicidal ideation.  Counselling was to take place later that day.

241     On 29 December 2014, the history was of ongoing left-sided back pain and an MRI scan that month.  It was noted there was no time to examine or discuss today.  The reason for the attendance was a depressive episode review. 

242     On 6 January 2015, reference was made to the CT scan which showed C4 nerve compression and the earlier fusion surgery was noted.  The plaintiff was very reluctant to go for physiotherapy as he had had it initially in Australia before a referral and felt it made him worse.  He had had Lyrica in Australia, but not for a while.  He was to be referred to a spinal clinic.

243     On 14 January 2015, it was noted the plaintiff’s son’s funeral was on today, and he was dreading it.  He had written all the speeches and felt a bit consumed by it.  The plaintiff had no thoughts of suicide and thought he was actually sleeping better and coping.  He had started online treatment through Talking Therapies.

244     On examination on 3 February 2015, it was noted the plaintiff was still struggling and the situation was difficult at home.  He was living with his daughter.  He felt there was no way out of this, and felt he was in her space with a number of people in the house.  He had previously lived in his son’s house, but had to move out when he was ill.  The funeral went okay and the plaintiff was struggling since to find somewhere to live.  He had been to the job centre and spoken to Social Security. 

245     There to be an orthopaedic appointment in two weeks.  The plaintiff was currently living off his wife’s pension.  He seemed less motivated and increased Sertraline was suggested.  The plaintiff felt he had lost so much since he was in Australia and he kept reflecting on this.

246     On 24 February 2015, it was noted the plaintiff had started taking Solpadine for his back pain and felt it was helpful.  His mood was much the same, he was coping and his social situation was still stressful.  He had found somewhere to live and was still struggling financially.  He had been referred to a shoulder specialist.  He saw the orthopaedic surgeon.  He was still awaiting review with Talking Therapies.

247     On 20 April 2015, it was noted the plaintiff was very poorly motivated and did not want to go outside.  He had self-harm thoughts, but no suicidal thoughts.  Sertraline helped, but he had not improved.

248     On 8 May 2015, the plaintiff’s housing situation was still developing, but he felt he was coping better with his living arrangements.  He was really struggling with the financial aspects and still lacked motivation and support from his daughter.

249     On 19 May 2015, it was noted the plaintiff had an appointment with a counsellor.  He was locking himself away and he felt it was impacting on his wife’s mental health also.  He was trying to be motivated.

250     Further, the plaintiff was requesting certificates for work regarding his spine and he had an orthopaedic appointment in this regard.  It was explained that the doctor could not really make a long-term judgment about the plaintiff’s spine and full-time work and suggested he would discuss this with the orthopaedic surgeon.  However, given his spine, combined with depression, it appeared the plaintiff would not be fit to work currently, so the doctor agreed to a certificate regarding this, and to continue to re-assess.  There was a suggested increase of Sertraline to 150 milligrams.

251     There was also a discussion about self-harm and suicide.  It was noted the plaintiff does not harm himself, though he had thoughts about what if life ended, but no specific plans were made and he was aware of the impact on his family.  Support was offered.  A certificate was provided for the period 19 May to 19 June 2015 for a depressive episode.

252     On 20 July 2015, the plaintiff complained of knee pain that had developed playing with his grandchildren over the weekend.  It was noted that this was likely to be bursitis.

253     There was a telephone consultation on 24 September 2015 in which the plaintiff advised he had been making progress with counselling and the Amitriptyline helped with back pain.  There was no suicidal ideation.

254     There were further attendances in October and November 2015, the latter being a review for a depressive episode.

255     In a letter of 22 September 2015, Paul Goldsmith noted he had seen the plaintiff nine times and he focussed on symptoms of depression and laterally on his anxiety about socialising.  At the final appointment on 21 September 2015, the clinical scores for depression indicated the plaintiff’s symptoms had now recovered and there was discussion about an opportunity to return to therapy. 

The Defendant’s medico-legal evidence

256     The plaintiff was examined by consultant psychiatrist, Professor Doherty, on 18 October 2016.

257     Professor Doherty noted the plaintiff held the low left side of his neck with his left hand throughout the hour-long interview.

258     The plaintiff told Professor Doherty he finished work with the employer in late July 2013.  He had to quit as the pain was unbearable.  When he resigned in 2013, he was doing full-time modified duties.

259     The plaintiff told Professor Doherty that since ceasing work, he had been horrible emotionally.  It put considerable strain on his marriage and initially he was an irritable pig, his wife had to just put up with so much and he created a bedroom downstairs where he stayed locked away.

260     The strain on the marriage started in Australia and had been worse since being back in the UK.  When in Australia, the plaintiff attended a psychologist once.

261     The plaintiff told Professor Doherty he left Australia in 2013 because of the visa problem.  His approval was tied to a 457 Visa arrangement.  It destroyed him leaving Australia as he loved living there.

262     The plaintiff told Professor Doherty he was taking anti-depressants before the death of his stepson in January 2015.  It was hard to cope with the death, and he did the majority of hospital visits beforehand.

263     The plaintiff told Professor Doherty his wife’s health was a worry to him and it had deteriorated over the last two or three years.

264     The plaintiff often stayed in his room, did no household chores and did not drive a car.  His social activities were zero and he had no hobbies.  He advised he felt very sad and wanted to make a life in Australia.  He did not like England.  He described his mood as a zero out of 10, and he had no motivation and no energy.  He was very nervous.  He could not speak to or look at people.  His memory was reasonable but his concentration was reduced.

265     The plaintiff told Professor Doherty he had no side effects from medication, but told him he might feel “woolly in the head”.

266     Following mental state examination, Professor Doherty thought it was unclear whether the plaintiff had significant psychiatric symptoms.  The remarkable feature at the interview was the plaintiff holding his neck with his left hand, a situation not commented upon by Mr Jones, who examined the plaintiff in October 2016.

267     Professor Doherty thought that appeared to be an example of an abnormal illness behaviour and was not caused by or reflective of the presence of a psychiatric condition.  It appeared to be behaviour designed to show, emphasise and demonstrate the presence of a neck problem.

268     The plaintiff told Professor Doherty he was worried about the future and his pessimism for what it held.  He claimed he was withdrawn, isolated himself and was fearful of normal social interaction with people he might meet on the street, and he limited his social interactions because of such fears.

269     Professor Doherty thought the plaintiff gave the impression he was simulating both the presence of pain and also confusion.

270     Professor Doherty considered whether or not there was a pain-related psychiatric condition.  He thought the plaintiff was unreliable and inconsistent in the presentation of his symptoms.  Diagnostic assessment was made more difficult and invalid when simulation of pain and symptoms was present.  He thought a diagnosis of a pain-related psychiatric condition could not be made, and that the plaintiff gave the distinct impression of a simulation of pain-laden behaviour.

271     Professor Doherty also considered whether there was an Adjustment Disorder with possibly Depressed Mood, and thought there was not.  There appeared to be the presence of insufficient clinically significant mood symptoms which caused distress or interfere with the planning of social or occupational functioning.  In his view, the plaintiff’s complaints made no coherent case for a psychiatric condition.

272     Further, Professor Doherty thought there was no current evidence for a depressive disorder or a prolonged bereavement reaction.  He thought it unclear why the plaintiff should continue on anti-depressant medication.  In his opinion, there was no diagnosable psychiatric condition present.

273     With regard to abnormal illness behaviour, Professor Doherty thought it more likely than not that the behaviour would fade on the finalisation of the case.  The head-holding had a conscious element and such conscious feigning of a symptom diminishes the reliability and validity of a psychiatric assessment.

274     Mr Clive Jones, orthopaedic surgeon, examined the plaintiff at the request of his solicitors on 22 September 2016.

275     The plaintiff described painful stiff neck with chronic muscular soreness and pain radiating into the left hand, with numbness and tingling affecting the ring and little fingers.

276     There appeared to be no significant problems on examination of the left shoulder joint itself, and despite the plaintiff’s alleged problems with his left arm, he had a normal range of external and internal rotation of the left shoulder.  There was no wasting.  All reflexes appeared to be present, although somewhat sluggish.

277     Mr Jones did not seem to have examined the plaintiff’s cervical spine, but note was made of the 2014 MRI scan.

278     Mr Jones noted the plaintiff was without lighter work experience and troubled by concentration, memory and depression problems which would require treatment.  Under those circumstances, it appeared he would be unable to return to work as a die setter which could require the handling of heavy and awkward dies. 

279     Mr Jones suspected there was a pain amplification and probably a pain disorder that would be more in the province of a psychiatrist in the absence of any organic cause for continuing pain symptoms and in the absence of neurological abnormalities.

280     In Mr Jones’ view, the plaintiff’s current capacity for employment as a die setter appears to be significantly reduced.  The prognosis was reserved.  He thought the plaintiff would no doubt continue to experience symptoms, but apart from medication, there was no need for a further surgical approach to his problem which should focus on pain management.

Visa

281     A Temporary Work (Skill) Visa, (Sub Class 457), lets a skilled worker travel to Australia to work in their nominated occupation for their approved sponsor for up to four years.  It also enables the recipient to bring their family to work or study in Australia, and to travel in and out of Australia as often as the person wanted.

282     In an October 2007 email to Nola McAuliffe, the plaintiff asked, if he was to be made redundant before his permanent residency was approved, would he still be able to apply for residency.  He asked whether he was guaranteed permanent residence at the end of two years, noting both he and his wife were particularly worried about that, as they did not want to relocate to the UK once they were out here.  In her reply, Nola advised that the employer had no intentions of having redundancies in the near future and he would have to do something pretty horrible for it to terminate his employment.

283     By email on 21 September 2007, an offer of employment was formally made to the plaintiff.

284     On 12 June 2012, Ms McAuliffe was advised by the Department of Immigration, that the plaintiff had six months from the date of that letter, in which to lodge an application for permanent residence.

285     On 6 July 2012, the employer refunded the plaintiff $3,105 that he had paid for the Permanent Resident Visa. 

286     There was an employer’s internal email on 10 July 2012 relating to the plaintiff’s intent to stay in Australia and the need to remove his LAHA Tax Benefit.

287     The plaintiff was granted a permanent visa on 5 September 2012 for an indefinite stay.

Overview

288     Whilst serious injury for pain and suffering was conceded in relation to the cervical injury suffered in the incident,[89] counsel for the defendant submitted the plaintiff could not establish that he had suffered the requisite loss of earning capacity of 40% in relation to this injury.[90]

[89]T2; C5-6 prolapse

[90]T86

289     Counsel for the plaintiff submitted the plaintiff has no capacity for suitable employment due to an organically based neck injury, relying largely on the views of occupational physician, Dr Slesenger, and vocational assessor, Ms Webster.[91]

[91]T2

Loss of earning capacity

290     Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –

(a)    at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also

(b)    after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).

291     The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:

(i)     “without injury” earnings; and

(ii)     “after injury” earnings. 

292     The former must be calculated by reference to the six year period specified in s134AB(38)(f).

293     “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning, or was capable of earning from personal exertion, or would have earned, or would have been capable of earning from personal exertion, had the injury not occurred.

294     It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.

295     The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.  See Barwon Spinners Pty Ltd & Ors v Podolak.[92]

[92](Supra) at paragraph [70]

296     I am therefore required to determine a “without injury” earnings figure.  There were no figures suggested in this regard with counsel for the plaintiff simply submitting there is no capacity for suitable employment.[93]  I note however that in 2012, the plaintiff was earning approximately $61,000.[94]

[93]T125

[94]Letter to the employer from the Immigration Department dated 12 June 2012

Credit

297     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[95]

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

[95](2010) 31 VR 1 at paragraph [12]

298     Counsel for the defendant submitted the plaintiff did not “come along here to tell deliberate lies”.[96]  However, it was submitted it was unbelievable he did not know he had been granted a permanent visa in 2012, when he paid for it, and it was only when he was pressured to provide documentation in relation thereto that it became apparent that was the case.[97]

[96]T86

[97]T86

299     Counsel for the plaintiff submitted the plaintiff was a frank and credible witness, whose evidence should be accepted.  While there might be some issues that were unclear as to his visa situation, these are peripheral to the main issue, which is the plaintiff’s capacity for employment.  It was submitted counsel for the defendant was not really dealing with the issues and was endeavouring to “raise smoke screens” about past events, when the only issue is capacity.[98]

[98]T104

300     It was submitted the visa issue is irrelevant, as are any suggestions of some sort of conspiracy between the plaintiff and his solicitors.[99]  The plaintiff could not be criticised for going back to the UK, because it really did not matter where he chose to live after ceasing work.[100]  This whole issue is irrelevant.[101]

[99]T123

[100]T124

[101]T125

301     It was submitted the defendant was not really attacking the plaintiff’s credit and that I should accept he was a witness of credit, and his demeanour in the witness box could be explained by his medication and the effects thereof.[102]

[102]T105

302     Whilst it is a peripheral issue in this case relating to work capacity, in my view, the plaintiff’s evidence as to his visa situation and the need to leave Australia when he ceased work is very difficult to understand and makes little sense.  I do not accept that he left Australia in July 2013 because he was unable to do even the lightest work and he thought his job was tied to his visa.

303     Save for Dr Doherty, who considered the plaintiff was not genuine in his presentation and was simulating both the presence of pain and confusion, no other medical examiner considered the plaintiff was exaggerating his level of disability. 

304     I do not consider there was any credit issue as to the involvement of solicitors in the plaintiff’s claim as counsel for the defendant seemed to suggest.[103]

[103]T106

Work capacity at cessation of employment

305     Whilst the plaintiff’s present capacity for employment is the issue for determination, his ability to work post-incident is relevant to my task.

306     The plaintiff underwent surgery two months after the incident.  Seven weeks thereafter, he returned to modified duties, four hours per day, and by August 2010, he had resumed full-time normal duties.  He continued in this role for over two years until 27 December 2012, when Dr Lange certified him fit for modified duties, with a lifting restriction of 5 kilograms.  This lifting limit was increased to 10 kilograms in May 2013.

307     During the two years of normal full-time duties, the plaintiff did not attend Dr Lange complaining of any spinal pain.[104] The plaintiff maintains he did not do so, as he had to keep working because of his visa requirements.[105]

[104]T90

[105]T90

308     However, I accept the submission by counsel for the defendant that the lack of significant complaints on a continuing basis during this period must impact significantly on the weight given to the plaintiff’s complaints of unremitting pain and of not even being able to do light work.[106]  In these circumstances, whilst the plaintiff’s emails refer to his difficulties undertaking his duties on a physical basis, the more objective and independent opinion as to the plaintiff’s capacity is important.[107]

[106]T102

[107]T103

309     From late 2012 until the first week in July 2013, the plaintiff worked full-time restricted duties as certified Dr Lange.  The lifting restriction was lifted from 5 kilograms to 10 kilograms on 31 May 2013.  Following examination on 2 July 2013, Dr Lange certified the plaintiff as totally unfit for work for that week. 

310     Both parties proceeded on the basis this certificate for the first week of July was the only total incapacity certification.[108] It appears, however, that following examination on 9 July 2013, the plaintiff was certified unfit for any duties until 23 July 2013. 

[108]T109

311     When Dr Lange last saw the plaintiff on 23 July 2013, he was certified unfit to work that day and fit for modified duties from 25 July (the day he left Australia) to 20 August 2013.[109]  Dr Lange noted the plaintiff then reported feeling better and he had mild pain in left arm.  It was noted the plaintiff’s last day at work was “tomorrow”.

[109]T92

312     The plaintiff however maintains that he left his job with the employer as he was unable to carry out even very light duties and that had been the case since February 2013, when his pain was becoming unbearable. 

313     Counsel for the plaintiff relied on Dr Lange’s note of 27 December 2012 setting out a five-month history of numbness and tingling and the referral to Mr Timms.  In the following months there were complaints by the plaintiff of ongoing difficulty with his duties[110] and a note on 5 March 2013 noted that he had been intimidated by the manager and health officer, and he was not coping when it was insisted that he do die setting.[111]

[110]There were also reports by the plaintiff of improvement at times

[111]T108

314     Whilst changes were made in light of the plaintiff’s complaints following the worksite assessment in early March 2013, it was submitted by counsel for the plaintiff what was ultimately provided to the plaintiff was “a protected work environment that said nothing about his real industrial work capacity.”[112]  It was not a real job – no other employer was going to give the plaintiff a job that involved a personal helper.[113]

[112]T109

[113]T110

315     I am not satisfied the plaintiff left his job because he was unable to do even the lightest of duties.  Other clinical examinations during this period do not suggest the plaintiff was as disabled as he maintains, nor did he describe significant symptoms to those examiners.[114]

[114]T103

316     In March 2013, Dr Lange wrote to Mr Timms, noting the plaintiff’s improvement with alternate duties with less neck pain and minimal forearm pain.  He also advised he would slowly like to return the plaintiff to normal duties over time.[115]

[115]T91

317     Further, when the plaintiff saw Dr Elder in May 2013, a month before the plaintiff resigned, Dr Elder noted the plaintiff reported his neck pain was bearable and the altered feeling in his fingers had resolved.  Further, on examination, there was a very good range of cervical movement. 

318     Counsel for the defendant submitted these findings had to be contrasted with the plaintiff’s evidence of constant and unremitting severe pain, such that he could not even do light work.[116]

[116]T102

319     Save for one week when certified totally unfit in the first week of July 2013,[117] by which time the plaintiff had already resigned, counsel for the defendant submitted there was an improvement in the plaintiff’s condition as set out in Dr Lange’s clinical notes from the time the plaintiff was put on modified duties in late December 2012.[118]

[117]T92

[118]T90

320     It was submitted that, in those circumstances, there was nothing there that was going to prevent the plaintiff eventually returning to full-time employment.[119] It just was unclear why he left Australia.  He could have stayed here on his permanent visa if he loved it so much.

[119]T92

321     It was conceded the plaintiff had exacerbations of neck pain from time to time, but the employer was prepared to keep him on and the plaintiff chose to leave for whatever reason, but certainly not because he had lost his job and had to leave Australia.

322     I accept the submission by counsel for the defendant that when one looked at the evidence as to the plaintiff’s level of pain and disability and the employer’s eagerness to keep him on, it was unrealistic to accept it was purely because of his neck pain that the plaintiff left Australia.[120]  Pain might well have caused him to want to have a rest from work but there must have been a compelling reason for the plaintiff to return to the UK when he so loved Australia.[121]

[120]T87

[121]T87

323     Further, there was no evidence from the lay witnesses in this regard and they did not depose to the plaintiff’s depression, or any marital issues.[122]  One had to look elsewhere for reasons for the plaintiff’s departure and, even on his best case, the plaintiff’s marital situation was also involved.[123]

[122]T88

[123]T87

324     On Dr Lange’s certification, the plaintiff had a capacity for modified duties at the time he resigned and, in my view, the reason for his resignation is not clear. 

325     Whilst the decision was to some extent influenced by the plaintiff’s matrimonial situation, his son’s illness was not relevant to this decision as he was not diagnosed with HIV until September 2014 and he was not sick when the plaintiff left Australia.

326     Whilst the plaintiff’s resignation letter referred to his continuous upper back pain, he also advised the employer of associated stress at home.  At that time, his marriage was under stress and his son had offered to look after him in the UK.

327     Against this background, there is the issue of the plaintiff’s visa status.  Clearly, he had permanent resident status and was not required to leave Australia if he ceased working for the employer.  It is incredible that he was unaware that this was the situation and that he cites a lack of visa as the reason for his departure to the UK in late July 2013.

328     I am not satisfied that the plaintiff was totally incapacitated for work at the time he left the employer or that an inability to do any work was the reason for his resignation.

329     I accept that when the plaintiff left Australia, he had a capacity for restricted duties.  He was a valued employee with a skill set which was in demand, as shown by the employer’s endeavours to have him stay.  Whilst he may have needed a helper, the plaintiff was still a useful, skilled employee and was not working in a protected environment, as submitted by counsel for the plaintiff.

Is present incapacity related to a cervical spinal injury?

330     I am required to determine the plaintiff’s present capacity for employment and whether he suffers the requisite loss of 40 per cent as a result of an organic, work-related neck injury.

Treating doctors

331     Determination of this issue is very difficult, given the lack of any evidence in this regard from the plaintiff’s treaters when he left for the UK in 2013 and also from his general practitioner and treating specialist in the UK.

332     Mr Timms did not provide a report after the operation.  Further, there were only two short notes from Dr Lange which did not address the issue of the plaintiff’s work capacity.

333     Whist a patient at Woosehill Clinic (“the Clinic”) since November 2014, in various reports that have been provided by doctors at the Clinic, there was no mention of the plaintiff experiencing any ongoing neck problem resulting in an incapacity for work.

334     Closer examination of the Clinic’s notes since that time indicate the plaintiff’s attendances have been related mainly to depression about family issues, in particular, the death of his stepson from HIV in January 2015. 

335     The major thrust of treatment in the UK has been psychiatric.  On 19 May 2015, when asked by the plaintiff for a certificate for work regarding his spine, Dr Harper explained he could not really make a long-term judgment in this regard and suggested the plaintiff discuss it with the orthopaedic surgeon; however, with depression, Dr Harper thought the plaintiff does not appear to be fit to work currently.[124]

[124]T99

336     There has been nothing forthcoming from that orthopaedic surgeon as to his view of the plaintiff’s work capacity relating to his cervical condition.

337     Whilst acknowledging there was no medical opinion from the plaintiff’s treaters as to his current work capacity and the relationship of his neck condition thereto, counsel for the plaintiff relied on what were submitted to be significant examination findings made by Mr Rolton of severe limited range of neck movement.[125]

[125]Examination findings at paragraph 147 (of this judgment)

The plaintiff’s evidence

338     On a number of occasions, the plaintiff has explained he has not sought work nor been capable of work since leaving the employer because of reasons unrelated to his spinal injury.

339     In answer to his own counsel’s question, the plaintiff said if he did not have back, leg or knee pain, he certainly do not feel confident in his head to go back to work. 

340     In cross-examination, when it was suggested the real factor preventing him from working was low mood and fear of mixing with people, the plaintiff responded: 

“Why don’t you say depression from the pain and losing all of your life from in front of you, why don’t you just say that?”[126]

[126]T47

341     Of note in this regard, whilst the plaintiff’s treating psychologist Mr Goldsmith thought his depression had resolved in September 2005, psychiatrist Dr Epstein diagnosed a Major depressive disorder  markedly affecting his work capacity, relationships and recreational enjoyment. Dr Doherty whilst not diagnosing a psychiatric condition, attributed the plaintiff’s presentation to abnormal illness behaviour.

342     Further, a number of the comments made by the plaintiff to Ms Webster about his capacity to work were telling, in that they focused largely on problems of mobility and psychological issues.

343     Mobility issues related to the plaintiff’s legs and ankles as well as his upper body complaints.[127]  He described in addition to back, neck and left shoulder, radiating pain in both legs and ankles which is aggravated by walking and has caused him to fall.

[127]T64

344     In addition to mobility issues, the plaintiff could not guarantee an employer that he would turn up to work every day because, as there was a “lack of want, development of insecurity and communication issues outside of home”.[128]  He preferred to stay indoors and he could not physically do a job.  He avoided social situations and it made him sick to think about them.”[129]

[128]T63

[129]T64

Medico-legal evidence

345     Counsel for the plaintiff submitted, taking into account all the evidence, in particular the reports of Dr Slesenger and vocational assessor, Ms Webster, it should be accepted the plaintiff does not have a physical capacity for work.[130]

[130]T120

346     It was submitted Dr Slesenger found the plaintiff’s condition to be organically based, having excluded psychological matters.[131] Further, on examination, he found severe restriction in cervical spine movements. On the basis of his opinion, it was submitted the plaintiff had discharged the burden of proof in relation to loss of earning capacity.[132]

[131]T113

[132]T130

347     Further, Ms Webster considered the plaintiff’s work capacity had been significantly affected by his injuries, and his consequential pain and symptoms.  When discussing the plaintiff’s transferable skills, Ms Webster was referring to problems because of prolonged bilateral use of the arms and hands, work that was usually performed in a production environment in which the plaintiff worked.[133]

[133]T118

348     It was submitted the entirety of Ms Webster’s report should be considered.[134] Whilst she mentioned issues with the plaintiff’s lower limbs, she focussed on his upper limb problems.[135] Further, just because the plaintiff says he is distraught by the loss of his capacity to work in his chosen field, that does not mean there is not a physical explanation, or a basis for his complaints.[136]

[134]T116

[135]T117

[136]T121

349     It was submitted the plaintiff’s physical disabilities, in themselves, were sufficient to render him a worker with no capacity for any employment.[137]

[137]T121

350     In my view, there are a number of issues with these opinions and they in fact provided limited support for the argument that the plaintiff has suffered the requisite loss of earning capacity as a result of an organically-based cervical spine condition.

351     Dr Slesenger did not provide any analysis leading to his conclusion that the plaintiff does not have the capacity to work.  He simply stated that that the initial neck injury had caused the injury which he now believes is a Chronic Pain Disorder.  He did not address the role played in the plaintiff’s current presentation by his leg symptoms nor did he comment on the involvement of any lumbar spine condition or meralgia paraesthetica.[138]

[138]T110

352     Ms Webster simply concluded the plaintiff had no capacity for work on the basis of physical and psychological grounds.  As counsel for the plaintiff rightly conceded, “her delineation was not as explicit as one would like”.[139] 

[139]T118

353     Further, Ms Webster’s view, as a recruiter, was based on the premise that the plaintiff’s work was physical and of a production line nature, where, clearly, this is not the case.  [140]

[140]T98

354     I found the plaintiff an articulate man, who was able to express himself well in writing, as evidenced by the emails around the time of his resignation.  Clearly, he has a capacity for supervisory and team leader duties, as he was carrying out for many years of his employment.

355     The other medico-legal examiner, Mr Clive Jones, orthopaedic surgeon, provides little support for the plaintiff’s application and was not relied upon.

356     Counsel for the plaintiff was critical of Mr Jones’ opinion, because he did not examine the plaintiff’s neck.  Further, it was submitted Mr Jones was not qualified to comment under ss(c) in terms of psychiatric matters.[141]

[141]T114

357     It is of note that Mr Jones examined the plaintiff at the request of his solicitors earlier this year for the purposes of this application.  Whilst the plaintiff mentioned a painful stiff neck and chronic muscular soreness, his complaints focussed largely on his left shoulder.  There was however a normal range of left shoulder movement and no muscle wasting.

358     Acknowledging the aetiology of the plaintiff’s current condition was his work injury producing a prolapse, Mr Jones did not consider there was any organic cause for the plaintiff’s continuing pain symptoms and there was an absence of neurological abnormalities.  He considered there were pain amplification and possibly a Pain Disorder which would be more in the province of a psychiatrist.

359     Mr Jones did not attribute an inability to work as a die setter to an organic neck injury.  He considered the plaintiff was unfit for work as a die setter, noting he was without lighter work experience, and troubled by concentration, memory and depression – problems which required treatment.

360     In addition to the absence of recent reports from any treaters and the issues with the medical and vocational evidence I have outlined above, in my view, the plaintiff has failed to separate the consequences of unrelated conditions from those claimed to result from an organic neck injury.

361     In Peak Engineering & Anor v McKenzie,[142] Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.

[142][2014] VSCA 67

362     In such circumstances:

“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ...  at least very considerable’.  For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[143]

[143](Supra) at paragraph [1]

363     The President found that the judge was:

“(a)bound to identify, and exclude, the continuing consequences for the plaintiff of the knee injury; and

(b) when the consequences properly referable to the relevant injury were identified, identified them as ‘serious’.”[144]

[144](Supra) at paragraph [2]

364     In terms of his capacity for employment, in addition to any neck problems, the plaintiff has ongoing problems with his lower limbs which affect his mobility as he described to Ms Webster.[145] He has problems with both knees. At times they have given way and he has fallen.

[145]T126

365     The plaintiff also has problems associated with meralgia of his right thigh. Numbness can become painful. He requires painkillers and rest for this condition.  The meralgia can affect his sleep and is aggravated by standing or walking.

366     Although the plaintiff minimised any problems of recent times with his lower back and leg, he made complaints in this regard when seen by Dr Slesenger in September this year and was referred to Mr Rolton in relation thereto. There is no report from Mr Rolton of the results of the MRI scan of the plaintiff’s lumbar spine that he arranged.

367     In summary, for the reasons stated above, the plaintiff has been unable to establish that any organically-based neck condition alone has resulted in a loss of earning capacity of 40 per cent.

368 Whilst counsel for the plaintiff was correct when he submitted the defendant has not suggested a job the plaintiff could do,[146] and there was no evidence he could retrain into another job, as I am unable to attribute any loss of earning capacity related to an organically-based neck condition to the requisite level of 40 per cent, his application must fail.

[146]See Giankos v SPC Ardmona Operations Limited (No 2) [2009] VCC 1461

369     Accordingly, the plaintiff’s application is dismissed.

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